Merry Christmas and Happy New Year!

You may have noticed, or not, that I haven't been posting for the last week or so.  Well, that's because I'm on leave with my family for the holidays.  I'll be back to work next year and will get cracking on some posts then.  In the meantime, have a very Merry Christmas and a Happy New Year!

Warrant Required for Private Emails (in the 6th Circuit)

As reported HERE, the U.S. Court of Appeals for the Sixth Circuit ruled on Tuesday, December 14th, that

The government may not compel a commercial ISP to turn over the contents of a subscriber’s e-mails without first obtaining a warrant based on probable cause.

In making this ruling, the Court held that a portion of the Federal Stored Communications Act - the portion that allowed an ISP to turnover a subscriber's emails without a warrant after they have been stored for 180 days - was unconstitutional.

We'll have to wait to see what the DOJ does with this ruling and whether the other Federal Circuit Courts fall in line, but for now, this decision is not binding on the Federal Courts outside the 6th Circuit.  Currently, the Fifth Circuit, which covers Texas, has not similarly ruled on this issue.  This could be a good issue for the cert from the Supreme Court.

The case, U.S. v. Warshak, can be found HERE.

The Overzealous, Inexperienced, Wet-Behind-The-Ears Prosecutor!

If the title didn't give it away, this post is from one of our friendly Texas prosecutors.  No, he's not overzealous (okay maybe a little), inexperienced, or wet-behind-the-ears, but he remembers back to the days when he was.  Here's some advice from him:

Raise your hand if you're tired of dealing with this guy? Most, if not every defense attorney can relate to having to deal w/a prosecutor half his age with about 1/100th the experience on a weekly basis. If you're experiencing difficulity in this area I have an easy solution...

Get over it!

We all know how well DA's offices pay, don't we? We also know how they are often limited to hiring green attorneys fresh out of law school and most often not the highly sought after editors of the law review. Short of Texas counties drastically raising taxes to increase its employees salaries, I don't see this changing. (Just checked the political climate tracker and Texas and nope, this ain't happening.) So, get over it! And learn how to deal with it.

Why? Because unless you're favorite phrase to hear from the prosecution is "set it for trial," refusing to respect and work with those young whipper snappers isn't going to get you anywhere.

I'm not suggesting you have to agree with them, or enjoy it. What I am saying is if you are truly in this business to help your client reach the best possible outcome, then you must find a way to maintain a professional relationship with any prosecutor you encounter.

How do you that? Another easy answer. Be courteous and show him or her respect. Regardless of the situation, this should always be your goal as a defense attorney.

I don't know how many times I've seen a defense attorney blow an opportunity for his client because of his own selfish pride. And ultimately what did they gain? Well, I made sure he knew who he was dealing with and that this wasn't my first rodeo!

Many, young prosecutors have a chip on their shoulder because...? Because they are young and deal with an adversary they know has more experience than they do.

It is only intensified when the defense attorney acts in an arrogant, belittling manner. Don't do it. Most, if not all, of those "snot-nosed kids" will respond better to your respect than your lack of it. As always, your reputation precedes you. Having the reputation of a respectful defense attorney should be highly desired. Unfortunately, its constantly forgotten.

College Professor's CP Conviction Stands

Here's the down and dirty holding of a recent case from the U.S. Court of Appeals for the 5th Circuit regarding the 4th Amendment Warrant Requirement.  Full text of the case (U.S. v. Allen) can be found HERE. 

The appellant was a college professor before being convicted of receiving Child Pornography.  On appeal he challenged the validity of the search warrant authorizing search of his computer, arguing that it was overbroad and contained stale information.  The 5th Circuit affirmed the conviction.

The court held that the search warrant did not describe with sufficient particularity the items to be seized, and the attachment detailing the items to be seized was not incorporated by reference into the warrant. However, the court concluded that evidence seized during the execution of the search warrant was admissible under the good-faith exception. See U.S. v. Leon, 468 U.S. 897 (“[O]ur evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible․”).  

The language used in the warrant was flawed, in that it did not reference the exhibit containing the affidavit and list of items to be seized. However, a reasonable officer could have easily concluded that the warrant was valid since the magistrate judge signed not only the warrant, but also the affidavit, to which the list of items to be seized was attached. The magistrate judge’s signature on the affidavit reduced the concern that he did not agree to the scope of the search as defined in it. This protected the defendant by preventing the officers from conducting a general search. The mistake was not that the documentation was insufficient to support issuance of the warrant, but that the attachment and affidavit were not properly incorporated into the warrant by reference.

The court further held that the information relied upon by the officers to establish probable cause was not stale. The court found, in cases involving child pornography, it was reasonable for the magistrate to conclude that the pornographic images were still on the defendant’s computer eighteen months after he transferred them.

You gotta love the Good-Faith Exception.

Sue 'Em Now!

Happy Monday folks!



This video is only a joke. Liberty and Justice for Y'all does NOT endorse the ideas contained therein.

Driving Near 6th Street Late at Night - Must Be Drunk

My last post was about the “reasonable suspicion” standard as applied by the 4th District Court of Appeals (San Antonio). A day after posting about that case, the Court of Criminal Appeals released a new “reasonable suspicion” case – Foster v. State. In this case, the CCA reverses the 3rd District Court of Appeals (Austin) which previously held that reasonable suspicion did not exist to justify appellant’s investigative detention. The CCA concludes, however, that the officer did have reasonable suspicion to justify detaining appellant. The detention resulted in appellant’s arrest and conviction for DWI.

What is becoming all too clear from reading these cases is that a “reasonable suspicion” determination can go either way, and that a big factor in the case is the initial ruling of the trial court. The law requires that appellate courts give the trial court decision great deference, which, if this standard is applied, can make it quite difficult to overturn a trial judge’s ruling on this issue.

Let’s see what you think about the CCA’s determination that the officer has “reasonable suspicion” to justify appellant’s detention. Here’s what the officer observed:

• Appellant was driving his vehicle near the Sixth Street bar district in Austin.
• It was late at night.
• Austin police often observe people driving while intoxicated near this area late at night.
• Appellant stopped his vehicle closely behind the officer’s unmarked vehicle at a traffic light.
• Appellant’s vehicle exhibited a lurching movement forward after he had stopped at the light.
• Appellant’s vehicle moved forward again as if to try to change lanes at the light, but he was too close to the officer’s unmarked vehicle to execute the lane change.

That’s it. That is all the objective evidence the officer had to justify the investigative detention that led to appellant’s arrest for DWI. A little flimsy if you ask me. Okay, you might say, “But wasn’t he actually driving while intoxicated? Why does it matter that the officer’s reason for the stop is a bit flimsy?” I’ll tell you why. Because we don’t live in Nazi Germany. The police cannot simply stop you whenever they have a hunch. The U.S. Constitution gives us the right to be “secure in our person, houses, papers, and effects against unreasonable searches and seizures” and we should guard against even the slightest erosion of this right. Any police detention that is not based upon specific, articulable facts should be met with sharp contempt. That’s my $0.02. But, once again, this case turned on the trial court’s initial ruling that the stop was justified, and based on the great deference owed that decision, the CCA felt it must uphold the trial court’s ruling.

Halt! Who Goes There?

A while ago, I wrote about consensual police encounters and how they differ from investigative detentions. See previous posts HERE and HERE. There are several factors that courts consider when determining whether a situation amounts to a consensual encounter or an investigative detention, but the short version is that if a person submits to a police officer’s show of authority and it does not appear that the person is allowed to leave, then the situation is an investigative detention (it might even be an arrest, but that’s another analysis). While consensual police encounters can be initiated for no cause whatsoever, an investigative detention requires reasonable suspicion.

Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.

The 4th District Court of Appeals (San Antonio) recently considered the whole consensual-encounter-or-investigative-detention issue in Parks v. State and reversed a trial court’s finding for abuse of discretion. The opinion did not make clear, and maybe that is part of the problem, whether the trial court concluded that the stop was a consensual encounter or an investigative detention. In any event, the Court of Appeals held that the facts of the case demonstrated that the stop was an investigative detention for which the officer must have had reasonable suspicion. Because the officer did not have reasonable suspicion, the fruits of his search should have been suppressed and case must be reversed. Once you read the facts, you’ll wonder how the trial court could have ever concluded that this was a consensual police encounter or that there was reasonable suspicion to justify an investigate detention. The Court of Appeals, I’m sure, did not labor long over this reversal.

Here’s what happened (taken from the Court of Appeals opinion). A police officer noticed four men walking behind a shopping center (strip mall). The officer shined his spotlight on the men and noticed that a couple of them had blue bandanas hanging from their pants.

Although the men were walking near the back doors of the businesses, the groups appeared to be walking past the location, no one appeared to be checking the doors to the businesses or the dumpsters, none of them appeared to react to his presence by changing his manner of walk, no furtive gestures or gang hand signals were notes, nothing passed among them, and the officer had no information that any of the group had a criminal record or was a gang member. The only factual circumstance the State appears to rely on to show reasonable suspicion is the presence of the blue rags.

There was also no testimony that the clothing that the men wore was emblematic of any gang membership. The officer drove over to the individuals, and in an authoritative tone asked them to place their hands on the car. The appellant took two steps back and looked around, so the officer repeated his request. The officer then frisked appellant and found a gun in one of his pockets.

This should have been a no-brainer for the trial court, but apparently an officer’s hunch is good enough for some trial judges. Who needs specific, articulable facts, when we can simply rely on the officer’s experience and intuition? The law does. Accordingly, the Court of Appeals reversed the conviction and remanded the case back to the trial court.

Based on this case, I also take back what I said about the San Antonio Court Appeals in this previous POST, when I jested that the Reasonable Suspicion standard was all but dead in San Antonio.  Thanks for proving me wrong.

Batson Challenge: Must the State have Questioned the Stricken Juror?

In a criminal trial, each side is allowed to strike a certain amount of prospective jurors (venire members) from the jury using peremptory strikes.  They can strike these venire members for any reason at all, so long as it is not discriminatory in nature.  If one side believes that the other has used a peremptory strike in a discriminatory manner (e.g. to strike a certain race from the jury), they can make what is called a Batson challenge.

Reviewing a trial court's denial of a Batson challenge in Grant v. State, the 10th District Court of Appeals (Waco) found that the State's explanation for striking a certain venire member was a pretext for racial discrimination because "there was no meaningful examination [of the member] regarding the reason the State used to strike him."  The Court of Criminal Appeals didn't agree with the legal reasoning of the Waco jurists.  Writing for a unanimous court, Judge Womack explained:

We hold that a lack of meaningful questioning might be sufficient to support a Batson challenge under the appropriate circumstances, but the Court of Appeals erred in applying the standard of review in this case.

The Court further explained that a reviewing court must given great deference to a party's facially race-neutral  explanation for using a peremptory strike, reversing only if the court's ruling was clearly erroneous.  (Is it wrong that I'm am bored while writing this post?  I can only imagine how bored you must me if you are reading it, so I'll cut to the chase).

In Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1990), the CCA created a non-exclusive list of five factors to determine whether a prosecutor used a peremptory challenge based on race.  One of the factors was the lack of meaningful questioning of the prospective juror, but the CCA stated that this factor was not dispositive.  Accordingly, because the Court of Appeals required the state to individually question the prospective juror, and because the Court of Appeals did not give great deference to the state's facially race-neutral reason for striking the juror, the CCA reversed.

Wheww!  That was terrible.  I really need to find some better cases to write about.  I have a backlog of Courts of Appeal opinions.  Maybe I should read through them and find something sexy.

Don't Buy Stock in this Soda Company

Just some levity for the weekend.

Juvenile Life Without Parole Sentence Affirmed

In 2005, the U.S. Supreme Court decided Roper v. Simmons, 543 U.S. 551 (2005), holding that the Eighth Amendment prohibition against cruel and unusual punishment forbids the execution of juveniles (i.e. anyone under the age of 18). At that time, the juveniles in Texas that were on death row had their sentences commuted to Life with parole. Also in 2005, the Texas Legislature amended Section 12.31(a) of the Texas Penal Code to require Life Without Parole (LWOP) sentences for capital cases in which the State does not seek the death penalty. This new LWOP provision applied to offenses committed on or after September 1, 2005.

Consequently, because juveniles could no longer be sentenced to death, all juveniles convicted of a capital crime in Texas were automatically sentenced to LWOP. In 2009, however, the legislature again amended section 12.31(a), to provide, in relevant part:

An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the [TDCJ] for life [i.e. with parole], if the individual’s case was transferred to the court under Section 54.02, Family Code.

The new life imprisonment (with parole) ceiling on juvenile capital offenses was not applied retroactively. The legislature specifically provided that the amendment applied only to an offense committed on or after September 1, 2009.

Chris Joshua Meadoux, the subject of a recent Court of Criminal Appeals opinion, was a juvenile capital offender sentenced to LWOP for a double murder that occurred in 2007. Unfortunately for him, his offense was committed during the 4 year window in which LWOP was the required punishment for a juvenile capital offender. He complained on appeal that his sentence violated the Eighth Amendment because the 2009 amendment reducing LWOP to life indicates that LWOP is a cruel and unusual punishment for juveniles. His specific arguments on appeal were:

1. Juveniles were less morally culpable (i.e. blameworthy) for their crimes than are adult offenders;
2. Life imprisonment without the possibility of parole did not serve as a measurable deterrent for juveniles; and
3. The Legislature’s recent amendment of the Texas Penal Code Section 12.31(a) to provide for life imprisonment with the possibility of parole for juvenile capital offenders signified that the evolving standard of decenecy, at least in Texas, forbade the categorical assessment of LWOP for juvenile capital offenders.

Appellant requested that his case be remanded back to the trial court for a new sentencing hearing in which life imprisonment would be the maximum penalty.

The 4th District Court of Appeals (San Antonio) held that the Eight Amendment did not bar LWOP in Appellant’s case, as his crimes were committed during the time in which LWOP was the required punishment. In its opinion of November 17, 2010, the CCA agreed, holding that:

(1) Meadoux has not established that there is presently a national consensus against imposing life without parole on a juvenile for the offense of capital murder. (2) A juvenile capital offender’s moral culpability, even if diminished as compared to that of an adult capital offender, is still great. (3) Life without parole is a severe sentence, especially for a juvenile. (4) Life without parole for juvenile capital offenders finds justification in the penological goals of retribution and incapacitation but not in the goals of deterrence or rehabilitation. Considering the balancing of these four factors, we conclude that Meaduox has not carried his burden of showing that, according to contemporary national standards of decency, the punishment of life without parole for juvenile capital offenders is grossly disproportionate to the offense.

Judge Meyers penned a dissenting opinion and was joined by Judge Johnson. They would hold that because the Legislature subsequently determined that LWOP is inappropriate for juvenile offenders, the sentence in Appellant’s case is unreasonably harsh.

I won’t make a lot of friends with my opinion of this holding, because I think the court got it right. In fact, I think the Legislature got it wrong in 2009. I believe that LWOP should still be an available punishment for juvenile capital offenders, but as an option, with life as the other alternative. We should let the jury decide whether LWOP or life is appropriate in each case. In this case, Meadoux committed a double murder and then tried to burn the bodies in a house fire to destroy the evidence. He got what he deserved.

No Such Thing as "Implied Bias"

Without fanfare, the Court today announces that there is no such thing as the Sixth Amendment doctrine of implied bias.

The 6th Amendment to the U.S. Constitution guarantees every criminal defendant the right to an impartial jury. The Texas Court of Criminal Appeals’ recent decision in Uranga v. State, however, threatens an essential aspect of this fundamental right by rejecting the notion of implied bias. Put simply, “implied bias” exists when it appears that a juror has, for whatever reason, a personal interest in the outcome of the case. When implied bias exists, the biased juror should normally be stricken from the panel.

In the Uranga case, the defendant was convicted of possession of methamphetamine. During the sentencing portion of the trial, the State presented extraneous offense evidence that the defendant had, on one occasion, attempted to evade police in his vehicle, and in the process, driven onto someone’s lawn. This event had been captured by the pursuing police officer’s in-car camera. After the jury watched the video, one of the jurors realized that it was his lawn on which the defendant had driven. Apparently, the juror never knew what happened to his lawn until the moment when he saw the video. Accordingly, the juror brought this to the attention of the court.

The judge then questioned the juror, outside the presence of the other jurors, about whether, after seeing this video and realizing that the defendant had damaged his lawn, he could continue to be fair and impartial in his role as a juror. Of course, the juror answered yes – he could be fair. After all, nobody wants to say that they cannot be fair. Nonetheless, the defense moved for a mistrial and the judge denied the motion. The juror remained on the case and the defendant was sentenced to life in prison.

On appeal, the appellant complained that he was denied a fair and impartial jury when the judge allowed the particular juror to remain on the case for sentencing. The 6th District Court of Appeals (Texarkana) held that the doctrine of implied bias should not be applied in this case and affirmed the conviction. The CCA now affirms, holding that in such a case as this, appellant must show actual bias in order to obtain relief. In so holding, the CCA all but extinguishes the doctrine of implied juror bias.

Judge Price, however, believes that the doctrine of implied bias is alive and well in American courts. Here’s a little of what he had to say in his dissent (joined by Judge Holcomb):

Without fanfare, the Court today announces that there is no such thing as the Sixth Amendment doctrine of implied bias.  The whole thing is apparently a figment of Justice O'Connor's imagination.  I am here to attest that the implied bias doctrine does exist.  I know it does; I have seen it...
[T]he Fifth Circuit regards the doctrine as so entrenched that it has seen fit to reverse a capital murder conviction on the basis of implied juror bias...

Regarding the CCA's requirement to show actual bias, Judge Price writes:

Determining actual bias of a juror's part is problematice to begin with, 'partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it.'  At a certain point the potential for bias may reach such a level that judges cannot depend of the time-honored tools for gauging credibility, such as tone of voice and demeanor, to ascertain the trustworthiness of the juror's claims of impartiality.

Even in Texas, this case surprised me.  I thought that the Court would have reversed and ordered a new sentencing hearing.  As the dissent points out, there can be "few more compelling reasons to impose punishment on an improper basis than the motive to avenge some wrong."  If for not other reason, the CCA should have reversed this case to avoid the appearance of impropriety in Texas courts.  Our prosecutors preach "justice" and "justice" should certainly include fairness.  The defendant may have still been sentenced to life with a new jury, but at least, we would know that he wasn't denied a fundamental constiutional right in the process.  He would be able to spend the rest of his life in prison knowing he got a fair shake.