36TH ANNUAL
RUSTY DUNCAN 1971
A DVA N C E D C R I M I N A L L AW C O U R S E
June 15-17, 2023 San Antonio, TX THE DIRECTORS: David Botsford Eric Davis Lisa Greenberg David Moore
A2
CLE
Start 2:30 PM 5:30 PM
End 7:00 PM 7:00 PM
Daily CLE Hours: 6.75 Ethics: 1.5 7:30 AM 5:00 PM 7:30 AM 8:30 AM 8:00 AM 8:05 AM 1.00 8:05 AM 9:05 AM 0.25 9:05 AM 9:20 AM
0.75 0.75 0.75 1.00
0.75 0.75 0.75
9:20 AM 10:05 AM 10:50 AM 11:10 AM 11:55 AM 1:30 PM 1:35 PM 2:00 PM 2:35 PM
10:05 AM 10:50 AM 11:10 AM 11:55 AM 1:25 PM 1:35 PM 2:35 PM 5:00 PM 2:55 PM
2:55 PM 3:40 PM 3:40 PM 4:25 PM 4:25 PM 5:10 PM 5:10 PM 5:30 PM 6:30 PM 5:30 PM 6:30 PM 6:30 PM 8:30 PM
Daily CLE: 7.0 Ethics: 1.0
0.75 0.75
0.75 0.75
0.75 0.75
0.75 0.75 1.00
17.75 total CLE, including 3.0 Ethics
Early-Bird Check-In Members and Family Reception
THURSDAY - June 15, 2023 - Regency Ballroom
Registration Continental Breakfast President's Message & Opening Remarks ~ Heather J. Barbieri & David Moore Talking to the Audience: Voir Dire ~ Robert Hirschhorn Reyos Case Update & Awards ~ Heather J. Barbieri & Allison Clayton Track I - Regency Ballroom Track II - Rio Grande Ballroom The Defense Set The Business Set Director: David Moore Director: Lisa Greenberg "The Greatest Story Ever Told" : Opening, Closing, & Storytelling ~ Tyrone Moncriffe "Moneyball": Economics, Practice, & Advertising (Ethics) ~ Brent Mayr "Death by a Thousand Cuts": Extraneous Offenses ~ Letitia Quinones-Hollins "The Road Warrior": Confessions of a Burned Out Warrior (Ethics) ~ John Hunter Smith Break "The Searchers": Search & Seizure ~ David Guinn, Jr. Lunch On Your Own/Awards Banquet (Ticket Needed) President-Elect Message & Opening Remarks ~ John Hunter Smith & Eric Davis "Mr. Smith Goes to Washington (or Austin)": Legislative Update -David Gonzalez Top Golf Tournament (Family Friendly) Break Track III - Regency Ballroom Track IV - Rio Grande Ballroom The Defense Set The Federal Set Director: Eric Davis Director: David Botsford
"Freedom Writers": Federal Motion Practice ~ Michael Heiskell "Les Misérables": Federal Sentencing Guidelines & Effective Advocacy ~ Judy Madewell 5th Circuit Update ~ Hon. Henry Bemporad Adjourn New Lawyers, New Members and Law School Students Reception with Board Members (Hotel Bar) TCDLEI Fellows and Super Fellows Reception (Invitation Only) Goldstein and Orr Pachanga
CCA Update ~ Hon. Jesse McClure, Hon. David Newell, & Hon. Bert Richardson "Liar Liar": Cross Exam ~ Damon Parrish "12 Angry Men": Jury Charge ~ Sarah Roland
FRIDAY - June 16, 2023
7:00 AM 7:45 AM 7:45 AM
8:00 AM 5:00 PM 8:45 AM
8:00 AM 8:05 AM 8:50 AM 9:15 AM 9:35 AM 9:55 AM 10:30 AM 10:40 AM 11:25 AM 11:45 AM
8:05 AM 8:50 AM 9:35 AM 10:15 AM 9:55 AM 10:40 AM 11:30 AM 11:25 AM 12:55 PM 12:45 PM
12:55 PM 1:00 PM 1:45 PM 2:00 PM 2:30 PM 2:50 PM
1:00 PM 1:45 PM 2:30 PM 3:00 PM 2:50 PM 3:35 PM
Opening Remarks Opening Remarks "Anatomy of Murder": Medical Examiner ~ Jeffrey Barnard "Silence of the Lambs": Mitigation & Investigation ~ Philip Wischkaemper "The Social Network": Cell Phone & Computers ~ Eric Devlin "An American Tail": Collateral Consequences & Crimmigration ~ Cori Hash Executive Committee Meeting (Chula Vista) Break - Family Ice Cream Social "The Forensic File": From 9-1-1 Call to Crime Scene Reconstruction ~ Anita Zannin Vida "Last Curtain Call": Writs, Appeals, & Preserving the Record ~ Jani Maselli Wood
3:35 PM 4:20 PM 4:20 PM 5:20 PM 5:20 PM 5:05 PM 6:00 PM 8:00 PM 12:00 AM
"Crime and Punishment": Enhancements, Punishments, & Sentencing ~ Clifford Duke "Blood Will Tell": DNA ~ Lynn Garcia "Do the Right Thing": Social Justice (Ethics) ~ Jeffery Robinson Adjourn Friends of Bill (Pecan Room, Hill Country level) Come Walk the Red Carpet: TCDLA Annual Membership Party —Hyatt Regency Ballroom (ticket required)
Daily CLE Hours: 4.0 Ethics: 0.5 1.00 1.00 1.00 1.00
WEDNESDAY - June 14, 2023 - Los Rios Foyer, Hyatt Regency
7:45 AM 8:45 AM 8:00 AM 8:05 AM 8:05 AM 9:05 AM 9:05 AM 10:05 AM 10:05 AM 11:05 AM 11:05 AM 12:05 PM 12:05 PM 12:15 PM 2:00 PM
Track I - Regency Ballroom Substance Abuse Scenes Director: David Moore
Bike Ride Registration Continental Breakfast
Track II - Rio Grande Ballroom Violent Scenes Director: Eric Davis
Opening Remarks Opening Remarks "The Hangover": DWI ~ Mark Thiessen "Mommy Dearest": Defending Child Injury ~ Angela Weltin "Breaking Bad": Experts & Labs ~ Janine Arvizu "The Killing Field": Murder/Homicide ~ Lisa Greenberg TCDLEI Annual Board Meeting (Chula Vista) Break "Up in Smoke": Hemp & Marijuana ~ Chris Self "Fatal Attraction": Family Violence ~ Clay Steadman CDLP Committee Meeting (Chula Vista) "Narcos": Drug Offenses ~ Amber Vazquez "To Kill a Mockingbird": Sexual Assault ~ Jeff Kearney Lunch On Your Own Women's Caucus Networking Luncheon - Rio Grande Ballroom Track III - Regency Ballroom Track IV - Rio Grande Ballroom Forensics Scenes Post-Verdict Scenes Director: Lisa Greenberg Director: David Botsford
SATURDAY - June 17, 2023 - Regency Ballroom
Registration & Continental Breakfast Opening Remarks ~ David Botsford and David Moore Supreme Court Update ~ Gerry Goldstein Panel: Race, Lies, & the "Other" (Ethics) ~ Richard Miles, Anthony Robinson, & Anna Vasquez ~ Moderators: Eric Davis & Mike Ware “Lights, Camera, reAction”: Dealing with Media, Movies, & Moguls ~ Dan Cogdell "Mission Impossible": Lessons from Florida v. Nikolas Cruz Mass Shooting Case ~ Melisa McNeill Adjourn 51st Annual TCDLA Members' Meeting and Swearing in of Officers and Board Members Rosario's Celebration Lunch
Texas Criminal Defense Lawyers Association
36th Annual Rusty Duncan Advanced Criminal Law Course Table of Contents speakers
topic Thursday, June 15
Robert Hirschhorn
Tips for Getting Your Favorable Jurors Talkin’ and Your Unfavorable Jurors Walkin’
Tyrone Moncriffe
Developing a Trial Story: Using the Techniques of the Storyteller
Brent Mayr
Changes to the Advertising Rules and What Criminal Defense Lawyers Need to Know
Letitia Quinones
404B AND ME: Extraneous Offenses and How They Can Apply to Your Case
David Guinn, Jr.
Fourth Amendment
Hon. Jesse McClure, Hon. David Newell, & Hon. Bert Richardson
Significant Decisions: United States Supreme Court and the Court of Criminal Appeals from September 2022 to April 2023
Michael Heiskell
Federal Pre-Trial Motions
Damon Parrish
Cross Examination
Judy Madewell
An Introduction to Federal Sentencing
Sarah Roland Hon. Henry Bemporad
Starting at the End: The Court’s Charge to the Jury 5th Circuit Update
Friday, June 16 Mark Thiessen
BACK TO THE BASICS; Attacking SFSTs, Not the Officer
Angela Weltin
Mommy Dearest: Defending Child Injury
Janine Arvizu
Breaking Bad Experts & Labs
Lisa Greenberg Chris Self
The Killing Fields: Murder and How to Defend It Cannabis Defense in Texas
Clay Steadman
Fatal Attraction: Family Violence
Amber Vazquez
Drug Offenses
Jeff Kearney
Sexual Assault
Philip Wischkaemper
Pre-Trial Capital Checklist
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association
36th Annual Rusty Duncan Advanced Criminal Law Course Table of Contents Eric Devlin
Digital Investigations in Criminal Cases
Cori Hash
Collateral Consequences & Crimmigration
Anita Zannin Vida
The Forensic Files: From 9-1-1 Call to Crime Scene Reconstruction
Jani Maselli Wood
The Final Curtain: Writs, Appeals, & Preserving the Record
Clifford Duke
Texas Sentencing in Non-Capital Cases
Saturday, June 17 Gerry Goldstein
Annual 4th Amendment Review of Leading Cases
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Tips for Getting Your Favorable Jurors Talkin’ and Your Unfavorable Jurors Walkin’
Speaker:
Robert Hirschhorn
Cathy E. Bennett & Associates Jury & Trial Consultants 2300 Highland Village Road, Suite 470 972.434.5879 Phone 972.434.0176 Fax rbh@cebjury.com Email www.cebjury.com Website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
th
36 ANNUAL RUSTY DUNCAN SEMINAR - HOUSTON th June 15 , 2023
Robert B. Hirschhorn, J.D. Cathy Bennett & Associates Jury & Trial Consultants 2300 Highland Village Road, Suite 470 Highland Village, Texas 75077 Office Phone Number: (972) 434- 5879 Website: www.cebjury.com Robert’s email: rbh@cebjury.com
Tips for Getting Your Favorable Jurors Talkin’ and Your Unfavorable Jurors Walkin’
TABLE OF CONTENTS I. ROBERT B. HIRSCHHORN’S BIO...................................................Tab A
II. ARTICLES 1. 81 Criminal Jury Selection Tips...........................................Tab B 2. The Good, the Bad and the Ugly of an Effective 30 minute Voir Dire in a Criminal Case...............................................Tab C
III. QUESTIONNAIRES 3. 1 Page Sexual Assault – Contact Questionnaire.................Tab D 4. 1 Page DWI (with test).......................................................Tab E 5. 1 Page Murder Self Defense Questionnaire........................Tab F 6. 1 Page 1 Question Hardship Questionnaire........................Tab G 7. 1 Page 3 Question Hardship Questionnaire……………………..Tab H 8. 1 Page Publicity Questionnaire ..........................................Tab I
IV. VOIR DIRE QUESTIONS 9. Voir Dire Questions – Sexual Assault ..................................Tab J 10. Voir Dire Questions – DWI ...............................................Tab K 11. Voir Dire Questions – Zimmerman....................................Tab L 12. Voir Dire Questions – Hardship.......................................Tab M 13. Voir Dire Questions – Publicity .......................................Tab N
Speaker Introduction for Robert Hirschhorn Robert Hirschhorn of Cathy E. Bennett & Associates, Inc., is an attorney and a nationally recognized expert in jury and trial consultation. He is a frequent contributor to Law360, Texas Lawyer, and the AAJ. Robert has co-authored 4 books including Blue’s Guide to Jury Selection and Voir Dire - Thinking Outside the Box. He has appeared on CNN, HLN, Good Morning America, 48 Hours, MSNBC, Dateline, and numerous other television and radio programs. A jury consultant since 1985, Robert has selected juries that have returned more than $80 Billion in actual and punitive damages. He lectures nationwide to lawyers and judges on the art of jury selection. Since picking the jury for the defense in State of Florida v. George Zimmerman, here are a dozen of Robert’s verdicts:
1.
$404,122,013 awarded to parents for the wrongful death of their 4 year old child who was killed when a company vehicle plowed into the back of the family car. (2023)
2.
$352,772,000 verdict for a catastrophically injured man in Cruz v. Allied. (2021)
3.
$222 Million verdict for a single plaintiff in a wrongful death case. (2021)
4.
Wrongful death verdict against the State of Washington for $115 Million. (2020)
5.
$8 Billion punitive damages verdict against J & J in a Risperdal trial. (2019)
6.
$550 Million in actual damages and $4.6 Billion in punitive damages awarded to twentytwo plaintiffs in Johnson & Johnson Talc verdict. (2018)
7.
$8 Billion verdict against JP Morgan Chase in breach of contract and breach of fiduciary duty verdict in Hopper v. JP Morgan Chase. (2017)
8.
Johnson & Johnson ordered to pay $1.041 Billion to six plaintiffs who were injured by Pinnacle hip implants. (2017)
9.
In USA v. Watts, a Mississippi jury acquitted Mikal, his brother, and a law firm employee of all 66 counts relating to the filing of 40,000 false BP claims. (2016)
10. Client was found NOT GUILTY of all federal charges in the BP explosion and worst oil spill in the history of the United States (Deepwater Horizon explosion). (2016) 11. Small medical device company and their CEO were charged with 9 counts of off label promotion of a medical device. A San Antonio federal jury returned a verdict of NOT GUILTY on all counts. (2016) 12. In USA v. Forkner, a federal jury in the Fort Worth Division acquitted Mark on all charges relating to the crash of 2 Boeing 737 Max aircraft. (2022)
81 CRIMINAL JURY SELECTION TIPS PREPARING FOR JURY SELECTION 1.
Voir dire begins the day the client walks through your door.
2.
Keep a voir dire notebook. Issues will arise throughout the discovery process that will help you prepare for jury selection.
3.
Every case, like every good book, has a trial theme. The purpose of the trial theme is to grab the jury’s attention like a newspaper uses headlines to grab the readers’ attention.
4.
Use visual aides in voir dire. Examples would be: Explaining the burden of proof, showing who the key witnesses are, showing a diagram of the location in question, showing a sample verdict form, etc.
5.
Trilogies are a Powerful, Permanent and Profound communication tool.
6.
Determine from the Judge the size of the panel in advance of jury selection.
7.
Determine from the Judge or other Court staff how the jurors will be seated in the courtroom and prepare a seating chart.
8.
Once you know how many jurors the Judge intends to call, make 8½” x 11" cards that contain the juror numbers. The jurors can hold the cards up when answering questions during voir dire. Have the cards laminated. Consider leaving the cards with the Court once the case is over.
9.
In cases where the jury will be assessing the punishment (i.e., Death Penalty case), decide whether you want a Guilt / Innocence or punishment jury. In our view, it is a fatal mistake to try to combine the two because you’ll get the worst of both worlds.
10.
No matter how many cases you have tried, there are no two trials that are exactly alike. Therefore, regardless of your experience in front of a jury, practice your voir dire on laypeople, not your office staff or law partners.
11.
Have someone assist you with jury selection. This person will become your eyes and ears. This will allow you the freedom to truly listen to and have a conversation with the jurors. You will not have to worry about remembering or writing down what the jurors have said, someone will be doing this for you.
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12.
If a juror questionnaire is used, the lawyer should complete one as well. This is another way to humanize yourself in front of the jury.
13.
Try to persuade the Judge to deal with challenges for cause at the end of voir dire as opposed to when they arise. It is always more time efficient to do the challenges for cause at the end of voir dire.
14.
If the Judge will not allow the use of a juror questionnaire and intends to place unreasonable time limits on voir dire, prepare a Motion for Additional Time to Conduct Voir dire.
DRESSED FOR SUCCESS 15.
Remember the wise advice we got from our parents: First impressions are lasting impressions; and, You never get a second chance to make a first impression. You and your client are the center of attention and your goal is to make a favorable and lasting first impression on the jury.
16.
Never wear power clothing during voir dire unless you have to give your Opening Statement the same day. Power clothing should be worn when you want the jury to focus their attention on you. Thus, Opening Statements, critical cross examinations and Closing Arguments are the proper time to wear power clothing. During voir dire, warm and friendly colors should be worn.
17.
A trial lawyer should not wear a double-breasted suit. Jurors perceive it as too slick. Male lawyers should not wear clear polish on their nails. Jurors perceive it as too slick.
18.
19.
Don’t wear: Expensive jewelry, diamonds, pinky rings (or more than one ring on each hand), earrings that dangle, fancy rings, Rolex watches, gold bracelets, etc.
20.
All of the tips stated above apply to your clients, their spouses and your witnesses.
21.
Never have your client wear new shoes. It is a dead giveaway that you’ve told them what to wear.
22.
Research has shown that jurors trust married men who wear wedding bands more than married men who don’t wear wedding bands.
3
23.
Tell your clients that they are being observed from the minute they leave their house to the time they get back home. They need to remember to act the same way in the elevator, bathroom and hallways as they do in the courtroom.
JUROR QUESTIONNAIRE 24.
With a simple and straightforward case, your questionnaire should be no longer than 2 or 3 pages. The more complex the issues and the more time you have to review the questionnaires, the longer the questionnaires can be.
25.
Logically organize your questionnaire. The first section should be biographical, the next section should be issue-specific to your case, the third section should be psychological profile questions, and the final section should contain questions to determine any connections jurors have to the parties, lawyers or witnesses and any hardship issues.
26.
At least 10% of the questions should be open-ended, 10% should be scaled, and remaining questions on the questionnaire should be the YES NO variety.
27.
Every YES NO question should have a follow-up question (i.e., why, please explain your answer, please tell us why you feel this way, etc.).
28.
Provide the Court with black ink pens and clipboards for the jurors.
29.
Give the Judge a diskette that contains your juror questionnaire. If the Court has to resolve any disagreement on the questionnaire, many Judges will make the changes right on the disk. It is easier and more time efficient to process and analyze information on a questionnaire that you are accustom to using.
GENERAL VOIR DIRE PRINCIPLES 30.
During voir dire, a lawyer should only have with him/her a seating chart of the jurors and the questions that are going to be asked of the jury.
31.
Use your seating chart to address the jurors by name rather than by juror numbers.
32.
Never do your voir dire from behind a podium or counsel table unless required to do so by the Judge or local rule.
4
33.
Don’t flirt with jurors. The other jurors will notice it and punish you and your client for it.
34.
Studies suggest that most people tend to favor (speak to) one side of a room over the other. During voir dire, be sure to speak to jurors on both the left and right sides of the courtroom. This also applies to Opening Statements and Closing Arguments.
35.
Jurors will remember the first and last things they hear and see. This is known as primacy and recency. Therefore, it is critically important that you start and end your voir dire on strong points. This concept also applies to Opening Statements, cross and direct examination of witnesses and Closing Arguments.
BEGINNING YOUR VOIR DIRE 36.
Don’t talk like an attorney, talk like a person.
37.
Begin your voir dire with your trial theme.
38.
Concisely explain your theory of the case in the beginning of voir dire. The theory of the case tells a jury, in a nutshell, why you should win. Reinforce your theory in Opening Statements, examination of witnesses and Closing Arguments.
39.
Before you begin questioning the panel, explain to the jurors that when lawyers refer to bias or prejudice, they mean pre-judgment or strong opinions. Tell the jurors that if they have any pre-judgment or strong opinions about any of the issues, to please let you know.
40.
Let the jury know that many times jurors want to talk privately about an answer to a question. Tell them if any juror would feel more comfortable sharing an answer in private, that person should simply let you know.
41.
Tell the jurors there are no right or wrong answers. All that you are asking is that the jurors be honest and forthright. Never tell the jurors that you are looking for 12 (or 6), “...fair and impartial jurors.” This will condition the jurors to give the fair and impartial response rather than the honest response.
42.
Tell your panel that, “Being a good juror and a good citizen means that if this case is not the right one for you to serve on, just let the lawyers and Judge know.”
5
43.
Tell the jurors that it’s been your experience that many jurors believe that if they don’t talk, they won’t be selected. Then tell the jurors that the quickest way to be selected is not to say anything. In other words, jurors who talk, walk. Jurors who have nothing to say, stay!
44.
At some point during the beginning of voir dire, a lawyer should employ an effective communication technique called self-disclosure. If a lawyer wants (and expects) to learn about his/her jurors, those jurors will feel more comfortable if the lawyer reveals something about herself/himself.
THE BODY OF VOIR DIRE 45.
If a lawyer has a habit, trait or any other characteristic that is obvious or noticeable (i.e. stuttering, nervousness, sweating, stumbling over words, loud voice, soft voice, object often, bald, overweight, ponytail, etc.), share that up front with the jury. Ask one or two jurors if this habit, etc., will affect them or cause them any discomfort if they serve on the jury in this case. This will eliminate the distraction and allow the juror to focus on the issues.
46.
Never be condescending or dismissive to a juror.
47.
Your voir dire questions should be short, simple and to the point.
48.
Don’t ask the same question in voir dire that you ask on the questionnaire. For example, do not ask a juror, “Where do you work?” or “How many children do you have?”, when the juror has shared this information on his/her questionnaire.
49.
Follow up in voir dire on information you obtain from the questionnaire.
50.
Listening is an active skill, not a passive skill. You should focus on the jurors’ answers and not worry about your next question. If your defense is reasonable doubt, never end your voir dire by talking about the State’s burden of proving their case beyond a reasonable doubt. Jurors will think you are more interested in winning on a technicality than justice.
51.
52.
Use this as a measuring stick: One open-ended question for every 15 minutes of voir dire. Pick 4 to 6 people to specifically answer the openended question, then go row by row and find out who agrees and who disagrees.
6
53.
Another type of question that can be asked very quickly of each juror is called a “scaled question”. An example would be as follows: “I want to ask everyone on the jury panel the following question: in general how reliable do you think eyewitness testimony is- very reliable, reliable, unreliable or very unreliable?” Another example would be: “how likely is it that the police would arrest and charge an innocent person: very likely, likely, unlikely or very unlikely?” Still another example would be, “When you hear that a person is accused of [insert the type of crime], how likely is it that the person is guilty, very likely, likely, unlikely or very unlikely.” The purpose of the scaled question is that you can ask ever juror to give their answer to the question and it will take very little time. If fact, we would encourage lawyers to write the answers on a flip chart and then ask the potential jurors to tell you which answer reflects their opinion or feeling on the issue. Explain to the jurors that you only have a limited amount of time and as much as you’d like to know the reason for their opinion, you simply don’t have the time, so if the jurors would please tell you which answer, you can quickly find out everyone’s opinion on this issue.
54.
Rather than asking people to raise their hands when posing a general question to your panel, pick one juror to get the ball rolling. After that juror answers your question, go row by row and find out, by a show of hands, who agrees and who disagrees. Jurors who often end up serving on a jury are the ones who don’t raise their hands...yea or nay. Those are the ones to whom you should go back and talk. Have the person who is helping you give you a list of the jurors who didn’t raise their hands.
55.
Resist the temptation to stereotype jurors. Jurors will make decisions based on their value system and life experiences. Ask yourself, “What kind of life experiences or value system must a juror have in order to be open to the issues in my case?”
56.
Never ask a juror more than 3 questions on one topic. If you don’t reach the point you want to get to, thank the juror and say that you may have some more questions for him/her later.
57.
Listen and learn. Let your jurors educate each other.
58.
Some jurors constantly volunteer their answers preventing you from visiting with other jurors. Thank the talkative juror and tell him/her you want to hear what he/she has to say, but that you need to visit with a few others on the panel. This will acknowledge that person’s interest while allowing you to move on. If the juror has previously said something that would subject him/her to a challenge for cause, tell the juror, “If you don’t 7
mind, we are going to visit later so we can talk at that time about this issue as well. Is that all right with you?” 59.
Be sure to raise with the jurors potential problems with your case (client’s “confession”, client not testifying, client’s prior criminal record if that will come into evidence, flight, etc). Refer to these “problem” areas as concerns that you have about the case. Also do the problem areas in the middle of your voir dire, and not at the beginning or the end.
60.
Try to rehabilitate the cause jurors identified by the Prosecution by explaining the applicable law and find out if the juror’s view would prevent him/her from following the law in your case.
61.
If a juror gives an answer that is unfavorable or could subject him/her to a challenge for cause, thank the juror for being honest, reinforce that everyone is entitled to an opinion and ask the juror if he/she would mind talking about the issue in more detail a little bit later. This approach allows you to bring closure to the issue with that particular juror and it signals to the other jurors that you really do want to know the feelings and opinions of the jurors.
62.
Looping is another tool that is critical to effective communication. Looping is when a juror has said something that is extremely helpful to your case. You then want to go to another juror and say, “[Juror’s name], you just heard Mrs. Jones say that the police often jump to conclusions. What is your reaction to what Mrs. Jones just said?” There are two key components to looping. First, use the name of the juror who gave the answer. The reason you use the name is because it makes the juror feel important or special. Second, repeat the juror’s exact words. This will condition the other jurors to this concept. The more times a jury hears something, the more likely they are going to believe it.
63.
If in the process of looping, a juror gives an answer you don’t like, you can go to the juror who gave the good answer and ask him/her for a response or, you can say to the panel, “You see, that’s the beauty of the jury system, we are all entitled to our own opinions and beliefs. You heard Mrs. Jones say that police often jump to conclusions, but Mr. Green said that he believes the police would never arrest an innocent person. I want to see who agrees with Mrs. Jones and who agrees with Mr. Green. Mr. Rodriguez, let me start with you. Who do you agree with, Mrs. Jones or Mr. Green?”
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ENDING YOUR Voir dire 64.
Consistent with the primacy / recency notion, you want to end your voir dire strongly.
65.
Another question we like to end with is to ask each and every juror a question such as, “[Juror’s name], can you look [client’s name] in the eye and say, Charlie, I will give you a fair trial.” It is simply amazing how jurors will react to such a question. Some jurors will look to the Judge or the prosecutor before answering, other jurors will give an equivocating response. Some jurors will simply say, “Yes”, and still other jurors will look your client right in the eye and say, “Charlie, I will give you a fair trial.”
66.
We have dubbed the final questions in voir dire the, “Oyster” questions. By that we mean, you have to shuck a bunch of oysters before you find a pearl. The same holds true with these concluding questions: “Is there anything else you want to tell us or you feel we should know?’; “Is there any other reason why you might not be a totally fair and impartial juror in a case like this?”; “Now that you have had a few hours (or overnight) to think about the issues in this case, is there anyone on the panel who feels they might be starting out this case favoring the prosecution, or who feels for whatever reason that they would not be totally fair, please raise your hand and let me know.”; or, “ Is there anyone who is sitting and thinking, ‘You know, if the lawyer had only asked me this question, he really would have found out something important about me’.”
CHALLENGE FOR CAUSE 67.
When a juror gives an answer that could well be a challenge for cause, thank the juror for his/her honesty and then say, “[Juror’s name], is it okay with you if we visit (talk) some more about this later?”
68.
When a juror has expressed a strong opinion that gives rise to a challenge for cause, ask the juror: 1) “[Juror’s name], would it be fair to say that this is a strong opinion you have about this issue?” and, 2) “You’d agree with me that you have had this opinion or feeling for quite some time?”
69.
When doing your challenges for cause, start by repeating the juror’s answer and then ask why he/she feels this way. This should be the only time you ask an open-ended question in a challenge for cause.
70.
When doing your challenge for cause, always ask closed-ended questions.
9
71.
Do an analogy such as this: “[Juror’s name], given the opinions you’ve shared with us, would it be fair to say that if this were a race, we would not be starting off even with the other side, that we would be starting a little behind?”
72.
Conclude the challenge for cause questioning by asking the juror the following final question: “Given what you have just shared with us, do you mind if I ask the judge to excuse you from serving as a juror in this case?”
73.
Always remember you are questioning a juror and not a witness. You never want a juror to feel as if he/she is being cross-examined, since the jury has the final say in the case. Some of your challenges for cause will be denied and if you don’t have enough peremptory strikes, that juror could very well end up serving on the case.
MISCELLANEOUS TIPS 74.
75.
Resist the temptation of saying to the jury: “I take it from your silence. . .”; “Can every member of the jury panel promise me that . . . “ ; “ Does anyone have a problem with . . .” and, “Does anyone on the panel have any feelings about . . .”. Humanize your client, even if you represent a corporation. Never refer to your client as “...the Defendant” or, “...my client.” Use your client’s name when talking about him or her.
76.
Listen for jurors who use equivocating phrases such as “I think”, “I’ll try”, “I hope”, “I believe”, etc. While some jurors simply talk in this manner, many other jurors will be expressing actual hesitation about the case when they use such equivocating words. When you hear a juror express hesitation, be certain to follow-up on the words used by the juror.
77.
Do not argue with a juror. It will send a very negative message to the other jurors. Thus, while you can use a challenge for cause or peremptory strike to get rid of that juror, other jurors will remember and resent you for arguing with the juror, especially if the juror’s position seemed somewhat reasonable.
78.
In cases involving allegations of violence, do not have your client reading juror questionnaires in front of the jury panel. During voir dire the potential jurors have only heard horrible things about the crime and your client. Many jurors are initially apprehensive or frightened. Their fear is exacerbated if they feel your client knows their address, phone number or place of employment. 10
79.
When exercising your peremptory strikes, you should also analyze which jurors the prosecution is likely to strike. Some jurors are potential strikes by both sides and therefore, you should use your last one or two strikes on those jurors.
80.
In some cases, a hung jury is your best shot at winning. Therefore, you may want to consider leaving on the jury an otherwise unacceptable juror if you feel that person will alienate or denigrate other jurors.
81.
Unless prohibited by local rule, you should arrive at the courtroom early enough to claim the counsel table closest to the jury. This is particularly important in cases where your client will not be testifying. Prosecutors understand the tactical advantage to being next to the jury, that is why the jealously guard this sacred ground. When “first come, first serve” was not sufficient to convince the Judge that we should be allowed to sit next to the jury, consider arguing that for the past 1000 trials, the prosecution has had the privilege of sitting at that table, we would like that privilege for this trial.
11
The Good, the Bad, and the Ugly of an Effective 30-Minute Voir Dire in a Criminal Case By: Robert B. Hirschhorn & Alexandra C. Figari
Often, the process of jury selection is akin to making sausage – the process is ugly but the finished product is a thing of beauty. Witness a recent aggravated assault with a deadly weapon prosecution: An argument in a bar escalated into a serious confrontation involving deadly weapons outside. A jury was left to sort out criminal culpability or lack thereof. Prior to trial, the defense, lead by the legendary criminal defense attorney Dick DeGuerin, was under the impression from the lead counsel that the judge only gave the parties in a felony criminal case an hour for voir dire, and that the judge only used jury questionnaires in capital murder cases. The defense wanted to use a questionnaire because jurors are hesitant to convey their true thoughts, feelings, and opinions in the courtroom.1 The defense enlisted the assistance of the authors, who prepared a specialized one-page questionnaire2 on triplicate carbonless paper with a cardboard backing.3 This methodology was employed for its efficiency.4 It takes a prospective juror 15 minutes or less to fill out the one-page questionnaire, and the triplicate carbonless paper eliminates the need for copies to be made. Before presenting the questionnaire to the judge, Mr. DeGeurin sent a copy to the prosecutor. After negotiating with the prosecutor, changes were made and the questionnaire was sent to a copier service.5 The judge liked the concept and efficiency of the one-page, triplicate carbonless questionnaire and approved its use. The jurors were brought into the courtroom and told by the judge that there were pre-trial matters that needed to be addressed. Rather than having the jurors wait around all day, he told the
1
The authors believe there are several reasons that motivate jurors not to disclose their true beliefs: (a) the fear of public speaking; (b) an unwillingness to publicly express private thoughts; (c) the desire not to be judged by their peer group; (d) their discomfort that they would not want to disclose such thoughts to people on the panel that they might know from their neighborhood, work, school, civic organizations, church, etc.; and, (e) jurors have the mistaken belief that if they speak up they are likely to be chosen to serve on the jury. 2
A copy of the actual questionnaire used in this case is attached as Appendix A.
3
The purpose of the cardboard backing is to provide the jurors with a hard surface for filling out their questionnaire. Thus, the need for a clipboard is eliminated. 4
Time is spent filling out the questionnaire, copying the instrument, and then giving the lawyers a reasonable amount of time to review the completed questionnaires. 5
The triplicate carbonless form with a cardboard backing costs approximately 50 cents per questionnaire. The Champion
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panel to please take their time in filling out the questionnaire and then asked them to return at 9 a.m. the following day for jury selection. He also admonished the panel not to discuss the case nor do any internet research. We believe that giving the attorneys the night to review the completed questionnaires has benefits that far outweigh the detriments. The detriments are immediate but limited: The start of trial is delayed and the entire jury panel is required to return the following day. However, the benefits maximize efficiency: (1) the lawyers have the opportunity to review the information contained in the questionnaire; (2) the lawyers have the time to carefully prepare the substance of their voir dire and prepare relevant and meaningful follow-up questions to individual panel members; (3) the lawyers may reach an agreement on jurors that should be excused based on their questionnaire answers because of a hardship or clear cause; (4) the parties may review the questionnaires and decide to settle the case, thereby saving valuable judicial time and resources; (5) the additional time allows the court to hear and resolve any outstanding pre-trial matters relating to the case; and (6) the court can utilize the time to deal with other matters on the docket. In this case, Dick DeGeurin mirrored what each juror did: He filled out the questionnaire and showed it to the jury on the Elmo document display system. At the very least, he demonstrated he was willing to go public on what a juror might believe to be intrusive questions.6 In addition to personalizing Mr. DeGeurin, this approach also proved to be helpful because it provided some relief to the jurors since he didn’t immediately start off his voir dire by posing questions to the panel members. During voir dire, Dick DeGuerin focused on a series of specific, non-commitment questions,7 the answers to which he would either “loop”8 to other jurors or use to find out who on the panel had a different point of view. The different point of view approach was used when a juror gave an answer that was favorable to the defense. Finding out who had a different point of view would yield important information with respect to potential 6
Caveat: Be careful of controversial answers. One of the questions on the questionnaire asked the jurors to name three people they do not admire, and one of the people on Dick DeGuerin’s list was former Vice President Dick Cheney. This case was tried in McLennan County, the county where former President George W. Bush had his ranch, and many of the jurors admired George W. Bush and did not share this negative opinion of Cheney. 7
A copy of the voir dire questions prepared by Author Hirschhorn and used by Dick DeGuerin is attached as Appendix B. 8
This is a term coined by one of the authors whereby a lawyer asks an open-ended question to one of the jurors and then “loops,” or repeats, that answer to another juror and asks for their response. This technique of looping is remarkably effective at stimulating a discussion among the jurors, but it is also extremely time consuming and can only be effectively used when the lawyer has an hour or more to conduct voir dire. The Champion
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challenges for cause or peremptory strikes. The key to an effective voir dire is to minimize your expectations and maximize your time. To accomplish this, it is essential that you know what your judge will expect, tolerate, and allow. Before the start of trial, you need to look into a number of key considerations: How your judge conducts voir dire; how much time will be given for voir dire; will the judge allow a questionnaire; how the judge handles challenges for cause (that is, does the judge take up cause issues as they arise or will the judge take up cause at the end of voir dire); does the judge want challenges for cause fully developed during voir dire or will the jurors be brought back at the conclusion of voir dire for further questioning; does the judge conduct the questioning of the cause jurors or does the judge allow the lawyers to ask the additional questions; and does the judge handle hardship, if at all, at the beginning of voir dire or at the end. To conduct an effective voir dire, it is imperative that the lawyer learns how the judge handles voir dire and what the judge will allow and will not allow. Once you have this critical information, there is a very simple five-step method for effectively using the time allotted: (1) break the ice; (2) primacy – starting strong; (3) elimination questions – designed to identify unfavorable jurors; (4) catch-all questions; and (5) recency– ending strong.
BREAKING THE ICE By the time the jury panel arrives in the courtroom, they have been inconvenienced, herded like cattle, and feel frustrated at the apparent inefficiencies of the criminal justice system. Many members of the panel are mad and frustrated. You can’t really blame them. In this day and age of fast food, the internet, Google, and Twitter, people expect things to happen at light speed, not at snail’s place. By the time you stand up to start the voir dire process, the range of emotions felt by the panel range from disinterest to outright contempt. Your job is to disarm and bond with this hostile group of strangers in a matter of seconds. Before launching into your remarks, we recommend you break the ice by saying “Good morning/afternoon, ladies and gentlemen.” A simple “hello” works well, too. When there is virtually no response, you should say, “I really need your help. When I said hello, not many folks responded. I didn’t do a good job so let me try this again.” This time say the same ice breaking words slower and a little louder. Your panel will respond and the ice will be broken.
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PRIMACY – START STRONG Research has shown that jurors will remember the first thing and the last thing you talk to them about.9 Therefore, start strong with your power statement. Your power statement is a simple one-sentence reason for why the jury should find in your favor. From the prosecutor’s perspective, the power statement can be as simple as, “This is a case about a man who intentionally chose to... .” The power statement for the defense is often a reflection on the theory of defense. If you have an affirmative defense, the power statement must reflect that – e.g., “When [name of client] believed his life was threatened, he did what the law allows of him and what his instincts told him: Fire the gun to protect yourself.” In many criminal cases, the trial is about “reasonable doubt” and not an affirmative defense. In that situation, the lawyer needs to frame “reasonable doubt” in terms of “could, would, and should.” That is, the power statement needs to be along the lines of what the police could have done, would have done, or should have done.10 This type of power statement gives the jury food for thought and reasons to look for reasonable doubt. After the power statement, you should ask your first question.11 As a general rule, this question should be an open-ended education question.12 The purpose of an education question is to make the jury aware of some important aspect of your case. For example, in a case where the basis of the charge is the conduct of the defendant, you might start out by asking the jurors to tell you about a time when their conduct was misunderstood or misinterpreted. If the juror you ask can’t think of a time, or if you don’t like the answer he or she gives, ask another juror the same question. If you like the answer the second juror gives, you will want to ask the remaining panel members to raise their hands or number cards13 if they agree with the answer that the juror just gave (Note: You should repeat the
9
This concept is referred to as primacy and recency.
10
You will notice that this power statement contains a trilogy. The power of trilogies is well established: “friends, Romans, countrymen,” “red, white, and blue,” “the good, the bad, and the ugly,” “they came, they saw, they conquered,” and our favorite, “If the glove, doesn’t fit, you must acquit.” 11
In most courts, the judge will introduce the prosecutors and defense attorneys. If that does not occur, then at this point, you should make the introductions before starting with your first question. 12
Voir dire questions are designed to either educate or eliminate prospective jurors.
13
We strongly believe in using numbered cards. In fact, many district courts now provide them. The numbered cards correspond to each juror’s number, and are put on laminated, letter-size-paper. These cards are extremely helpful to the court, the court reporter, and the parties to determine who is responding to a question. The Champion
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exact answer just given by the juror).14 You should then ask the jurors who disagree to please raise their cards. In a truncated voir dire, you will not have the time to find out why the juror disagrees – just note the fact that they disagree.
ELIMINATION QUESTIONS The bulk of your time in a 30- or 45-minute voir dire should be spent asking questions designed to identify unfavorable jurors. We refer to these types of questions as “elimination questions.” The purpose of asking elimination questions is to make sure a person’s belief system is not in conflict with your theory of the case. For example, from the prosecution’s perspective, there are some jurors whose value system does not allow them to pass judgment upon others. Another example is that there are some jurors who believe that if a defendant raises self-defense, it must have merit. From the defense perspective, an example is the belief that if a person has been charged with a crime, they are most likely guilty. Additionally, some jurors have a strong belief or value system that the only people who should carry guns are police. The effective use of elimination questions is the true art of a 30-minute voir dire. This is where time management is crucial for the lawyer. As we said earlier, you need to limit your expectations. By that we mean it is unrealistic to expect that you can cover 10 or 15 topics in a 30-minute voir dire. We believe that you can effectively cover four to six topics and that you should allot approximately five minutes per topic. Your job is to determine what the most important topics are for you to cover. In advance of trial, you need to list your voir dire topics and rank them in order of importance. In most criminal cases, when deciding what questions to ask, you should consider questions that relate to publicity, nature of the charge, prior record for same or similar crime, any affirmative defense, reasonable doubt, and the defendant not testifying. Because of the limitations placed on attorneys by virtue of cases such as Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001), it is improper in many jurisdictions for lawyers to ask commitment questions. Therefore, you must think in terms of global issues and not case-specific facts. Ask yourself, “What will cause me to lose this case?” Think conceptually, not factually. By sticking to this agenda, you will have the time to ask proper and important questions. How you ask these questions is equally important. Open-ended questions are the best vehicle for quality information, but a 30-minute 14
This is the concept known as “looping.”
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voir dire does not afford you the luxury of time you need when asking this type of question. Our rule of thumb is for every 15 minutes of voir dire, you can ask one openended question. Thus, you typically only have time to ask a couple of open-ended questions. With this limitation, you need to think carefully about the two areas that you really need to hear jurors express their views about. When you ask an open-ended question, follow the same protocol that we outlined earlier. Pick a juror and ask the openended question. If the juror does not have an opinion or if you do not like the answer, pick another juror and ask the same question. If you do not like that answer either, pick a third juror and try the question one last time. If this juror does not give a favorable answer, then you should give the answer you are looking for, and ask a fourth juror what their reaction or opinion is. Once the favorable answer is out there, you should “loop” the answer and ask the jurors to raise their cards if they agree. Finish this topic by requesting that the jurors raise their cards if they disagree.15 Close-ended questions are most often used by trial lawyers, but this type of question does not give you the crucial information needed to exercise cause challenges and peremptory strikes. This type of question is typically asked in a “yes” or “no” format. There is value in asking close-ended questions, but we suggest making a few changes. First, when you ask a close-ended question, ask the jurors to raise their cards if their answer to the question would be “yes.” Then ask the jurors to raise their card if their answer is “no.” Keep track of this information to find out which jurors did not raise their hand at all. These are usually the jurors who end up serving on the jury, and yet you know virtually nothing about them. We suggest that you find out which jurors did not raise their hands and ask them whether they would answer the question “yes,” “no,” or “I just don’t know.” Second, we suggest that the question should be framed as one in which the juror has to agree or disagree (as opposed to a yes or no answer). Finally, ask the jurors if they have “ever had an experience with ... ” or “ever felt or believed that ... .” No more than one-third of your time and questions should be of the close-ended variety. Finally, we come to what the authors call “scaled” questions. We believe that these are the most efficient and helpful questions in a short voir dire. The premise behind the
15
You need to keep track of the jurors who disagree. What works best is if you have someone keep track of the numbers of the jurors who have raised their cards. Even if you do not have someone that can assist you with this task (and in cases of violent crimes, it is never a good idea to have your client keep track of this information – it will scare some of the jurors), you should always slowly and loudly call out the numbers. This way, there is no confusion on your team as to whether a certain juror raised their card. It will also assist the court reporter and the trial judge. This will be important if the question goes to the issue of a potential challenge for cause. The Champion
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scaled question is that on any given topic there are a variety of opinions that will be harbored by the jury pool, and your job is to ask each of the jurors their opinion. An example of a scaled question is, “On a scale of 0 (very negative) to 10 (very positive), what is your opinion of the police?” You should plan on using two or three scaled questions during your voir dire. Here are a few words of advice regarding scaled questions. First, sprinkle them throughout the voir dire. Do not ask them in succession because there is a tendency for the jurors to give the same answer each time without giving much thought to the question or their answers. Second, ask the panel to please tell you the number that reflects their honest and true beliefs and to not worry about how the other jurors answered the same question. Third, we would recommend putting your scaled questions in a PowerPoint presentation.16 In the past we used either poster board or flip charts to display scaled questions, but we found that the jurors in the back rows couldn’t read the question or the scaled answers. We have also found that verbally stating the scaled question is counterproductive because the jurors will ask you to repeat the question or the scaled options and that takes away from the efficiency and flow. Fourth, repeat the answer given by each juror. This will serve the purpose of making sure you have written down the correct information given by the juror. Fifth, if a juror asks if he or she can explain their answer, you need to politely tell them that you would love to hear their reasons, but the judge has only given you a limited amount of time, and you have a few more matters that you need to cover before your time is up. Assure the juror that if you have any time left over, you will come back to them and give them the opportunity to tell you their reason. Finally, if you have substantially more jurors than you realistically expect to reach, tell the panel that you are not going to visit with the remaining jurors because it is unlikely you will reach them. In a typical felony case, you will be exercising your strikes to the first 32 qualified jurors. Add to that number any alternates that will be empaneled. Many judges will empanel one or two alternates. Therefore, your qualified pool will be 35 or 36 members of the panel.17 We would recommend obtaining the scaled answers to 36 jurors, plus the number of jurors you expect to lose for hardship or cause.
16
A sample PowerPoint presentation is attached as Appendix C. In addition to using a PowerPoint to display your scaled questions, it can also be used to introduce other topics such as a visual depiction of burden of proof. 17
The Texas Government Code states that each side is entitled to one peremptory strike if one or two alternates will be empaneled. Texas Govt. Code Section 62.02. The Champion
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CATCH-ALL The last substantive area of your voir dire requires you to end with a “catch-all question” that is designed to find out if there is any other important information for the jurors to share with you, and if there are any other reasons why a juror could not be fair and impartial. We recommend asking the following questions: “Is there anyone sitting out there saying to themselves, if only the lawyer had asked me this question, he would have learned something very important about me?” and “Other than those jurors who have already told us that they would have a problem serving as a juror in this case, is there anyone else on the jury panel, for whatever reason, who feels they cannot be a completely fair and impartial juror?” Your goal is to give the jury every possible opportunity to inform the lawyers and the court that this is not the right case for them.
RECENCY – END STRONG Finally, you always want to end strong. In most instances, this means you should either repeat the power statement that you used to start voir dire, or, if a juror has said something profoundly helpful during voir dire, you should consider reminding the panel of what their fellow juror has said. The power that a jury possesses is enormous. You may want to consider leaving the jury with this thought: Juries in this country have a profound power and responsibility, and in this case, you will have the power and responsibility to decide if [name of client] had the right to defend himself or herself.
CONCLUSION The foundation for an effective, time-limited voir dire largely depends on your level of preparedness. If you enter voir dire with an understanding of the judge’s expectations, the issues most central to your case, and the best way to approach those issues in voir dire, then you’ve already won half the battle of jury selection. Employing the techniques discussed in this article, such as the use of a juror questionnaire, the concept of primacy and recency, and an approach focused on elimination questions, will allow you to keep the jury engaged and get valuable feedback on the most important issues in your case. Streamlining your time with the panel using these methods is the most effective way to approach a 30-minute voir dire, and will lead to a successful jury selection that will likely translate into a successful outcome at the end of trial.
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TO PROSPECTIVE JURORS This questionnaire is designed to obtain information from you with respect to your qualifications to sit as a juror in this case. By the use of the questionnaire, the process of jury selection will be shortened. Please respond to the following questions as completely as possible. The information contained within the questionnaire will become part of the Court's permanent record, but it will not be distributed to anyone except the attorneys in the case and the judge. During the questioning by the attorneys, you w ill be given an opportunity to explain or expand any answers, if necessary. If for any reason you do not want to answer any of the questions asked, please write the word 'PRIVATE' next to the question and we will take this matter up with you in private.
This questionnaire is part of the jury selection process. The questions must be answered by you under penalty of perjury and you should fill out this questionnaire by yourself without consulting any other person.
If you do not understand a question, please write "I DO NOT UNDERSTAND" and the question will be explained to you in Court. PLEASE REALIZE THERE ARE NO
RIGHT OR WRONG ANSWERS -- JUST HONEST ONES .
CONFIDENTIAL
20
JUROR NAME:
Age:
1. How far did you go in school (If college, please tell us all degrees you received)?
Juror #
2. Marital Status:
3. List the sex, age & occupation of your children and step-children:
What is the occupation of your spouse? What jobs have you held in the past? What jobs has your spouse held in the past?
4. Circle any of the following in which you have had training or education: Child development
Law
Criminal justice
Law enforcement
Family counseling
Psychology
Human sexuality
Religion
7. Have you ever contributed time or money to any crisis center, child abuse agency or any other organization dedicated to helping victims of crime? YES NO If YES, please explain:
10. What are your thoughts or opinions about people from India?
5. Have you ever served as a juror in a: Criminal case Grand Jury Civil case
6. Have you or any family members ever worked for any law enforcement agency? YES NO If YES, who and at what law enforcement agency?
Never served
What kind(s) of criminal case(s): What was the verdict? Were you the foreperson? YES NO 8. Have you or anyone you know ever been the victim of sexual assault, or any other unwanted sexual contact? YES NO If YES, please explain:
9. Have you or anyone you know ever been accused of sexual assault, sexual abuse, or any other unwanted sexual contact? YES NO If YES, please explain:
11. The defendant in this case, Swami Ji, is a Hindu religious leader. Circle the number below that best describes your opinion of:
12. Do you recall reading or hearing about this case? YES NO IF YES, what do you recall reading or hearing?
People who follow the Hindu religion Have you or anyone you know ever had a bad experience with someone from India? YES NO IF YES, PLEASE EXPLAIN:
1
2
Very negative
3
4
Neutral
5 Very positive
Have you formed any opinions on whether the defendant is guilty of the charges? YES NO If YES, please explain:
Hindu Religious leaders 1 Very negative
2
3 Neutral
4
5 Very positive
13. Have you heard or read about cases where a person was falsely accused of inappropriately touching someone? YES NO If YES, please explain:
14. In a situation where a man is accused of inappropriate sexual contact, would you always start out believing the accuser? YES MAYBE NO Please explain your answer:
15. Have you ever been indicted or convicted of any crime other than a traffic ticket? YES NO If YES, please explain:
16. Which of the following describes you
17. Name 3 people that you admire or respect:
18. The Defendant is accused of inappropriately touching two young women. Is there anything about the nature of these charges that would prevent you from being a fair and impartial juror? YES NO If YES, please explain:
[check all that apply]: 1.
Analytical
Opinionated
Careful
Perceptive
2.
Child Advocate
Religious
3.
Emotional
Sensitive
Family oriented
Skeptical
Name 3 people that you do not admire or respect:
Feminist
Snap decisions
1.
Law and Order
Visual
Other:
2. 3.
The answers contained in this questionnaire are true and correct to the best of my knowledge and ability.
Juror’s Name
Date
CONFIDENTIAL
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TO PROSPECTIVE JURORS This questionnaire is designed to obtain information from you with respect to your qualifications to sit as a juror in this case. By the use of the questionnaire, the process of jury selection will be shortened. Please respond to the following questions as completely as possible. The information contained within the questionnaire will become part of the Court's permanent record, but it will not be distributed to anyone except the attorneys in the case and the judge. During the questioning by the attorneys, you will be given an opportunity to explain or expand any answers, if necessary. If for any reason you do not want to answer any of the questions asked, please write the word, 'PRIVATE', next to the question and we will take this matter up with you in private.
This questionnaire is part of the jury selection process. The questions must be answered by you under penalty of perjury. You should fill out this questionnaire by yourself without consulting any other person. If you wish to make further comments regarding any of your answers, please use the back of the page to do so. Remember to indicate the number of the question you are answering.
If you do not understand a question, please write, “I DO NOT UNDERSTAND", and the question will be explained to you in Court. PLEASE REALIZE THERE ARE NO RIGHT OR WRONG ANSWERS
-- JUST HONEST ONES. You are instructed not to seek out, read or research about the Defendant in this case. Specifically, you must not do any research using any internet search engine (e.g., Google, Yahoo!, Bing, YouTube etc.), message boards, chat rooms, blogs, social media (e.g., Facebook, Twitter, Google+, Foursquare, etc.). Do not read any articles in the newspaper or online, and do not listen to any news reports on the radio or on television.
If any juror does such research, this would be jury misconduct, all of our time and effort will be wasted and it will be necessary to start this process all over. Furthermore, if a juror violates this Order from the Court, the juror may be subjected to Contempt of Court charges, punishable by a fine and/or jail time.
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JUROR QUESTIONNAIRE The information you provide in this questionnaire will be confidential and w ill only be used during jury selection. Full Name:__________________________________
Age: ______
1. How long have you lived in the Santa Barbara area?
2. Your c u rrent em ployer [if retired/unem ployed, what & where was your last job]:
Highest grade you com pleted in school (if college, please list any degree(s) received):
W hat is your job title/duties:
4. Spouse/partner’s job and where em ployed [if retired/unem ployed, what & where was last job]:
Years em ployed: 5. List the sex, age & occupation of your children and step-children:
W hat is this person’s job title & duties:
Years em ployed: 7. Do you know any Santa Barbara police officers or anyone in law enforcem ent? YES NO If YES, whom do you know and how do you know this person?
3. W hat jobs have you held in the past?
Have you ever been responsible for hiring, firing or supervising em ployees? YES NO 6. Have you ever served as a juror in a: Crim inal case Grand Jury Civil case Never served W hat kind of crim inal case(s): W hat was the verdict:?
8. Have you ever had a good or bad experience with a police officer? YES NO If YES, please explain:
Circle the num ber that best describes your opinion of Santa Barbara police officers: 1 2 3 4 5 Very Positive
10. How often do you have one or m ore alcoholic drinks: Daily Once a week Occasionally Rarely Never
Juror # _________
Very Negative
11. Have you ever had one or two alcoholic drinks and then driven a vehicle? YES NO If YES, please tell us why you felt it was safe to drive:
W ere you the foreperson? YES NO 9. W hat would you consider to be excessive force used by a police officer?
How strongly do you agree or disagree with the following statem ent: It is wrong for the police to use excessive force on a person they have pulled over. 1 2 3 4 5 Strongly Disagree
Strongly Agree
12. Do you know anyone who was accused, charged or convicted of D.U.I.? YES NO Do you know anyone who has been falsely accused of D.U.I.? YES NO If YES, please explain:
W hat are som e signs that a person is intoxicated?
13. Have you or anyone you know ever had a bad experience with som eone you believed was intoxicated? YES NO If YES, please explain:
14. Have you or anyone you know ever belonged to M.A.D.D. (Mothers Against Drunk Driving) or any other group which supports stricter laws against driving under the influence? YES NO If YES, please explain:
15. Do you feel the D.U.I. laws in our state are: Not Strict Enough Too Strict Fair W HY DO YOU FEEL THIS W AY?
16. Have you heard or read about the D.U.I. charges filed against Tony DeNunzio? YES NO If YES, what have you heard or read about this case:
17. W hat three (3) words or adjectives woul you use to describe yourself?
18. Is there any reason why you would be unwilling/unable to serve as a juror in this Driving Under the Influence case? YES NO If YES, please explain:
TO PROSPECTIVE JURORS This questionnaire is designed to obtain information from you with respect to your qualifications to sit as a juror in this case. By the use of the questionnaire, the process of jury selection will be shortened. Please answer the questions as completely as possible. The information contained within the questionnaire will become part of the Court's permanent record, but it will not be distributed to anyone except the attorneys in the case and the judge. During the questioning by the Court or the attorneys, you will be given an opportunity to explain or expand any answers, if necessary. If for any reason you do not want to answer any of the questions asked, please write the word 'PRIVATE' next to the question and we will take this matter up with you in private.
This questionnaire is part of the jury selection process. The questions must be answered by you under penalty of perjury and you should fill out this questionnaire by yourself without consulting any other person.
If you do not understand a question, please write "I DO NOT UNDERSTAND" and the question will be explained to you in Court. PLEASE REALIZE THERE ARE NO
RIGHT OR WRONG ANSWERS -- JUST HONEST ONES .
C O N FID EN TIAL
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The inform ation you provide in this questionnaire will be confidential and will only be used for this trial. JUROR NAM E:
Juror #
1. W here do you live?
2. Marital Status:
Highest grade you com pleted in school: If college, please list any degrees received:
If m arried, for how long?
W hat jobs have you held in the past?
W hat jobs has your spouse/partner held in the past?
4. Circle any of the following in which you have had training, education or experience: Alcohol abuse Guns
5. Have you ever served as a juror in a: Crim inal case Grand Jury
Cocaine abuse
Law enforcem ent
Crim inal law
Marijuana abuse
Fear Responses
Self Defense
3. List the sex, age & occupation of your children and step-children:
If m arried, how m any tim es?
Civil case
6. Do you own any guns? YES If YES, what type:
NO
Never served
W hat kind(s) of crim inal case(s):
Have you ever had a concealed gun perm it? YES NO
W hat was the verdict? Have you ever had a bad experience with a gun? YES NO W ere you the foreperson? YES NO
7. Have you or anyone close to you ever worked for any law enforcem ent agency? YES NO If YES, who and at what law enforcem ent agency?
8. Do you know anyone who has been injured or died in a fight? YES NO If YES, please explain:
9. Have you ever felt in fear for your life? YES NO If YES, please explain:
10. If you were in fear for your life and you had a gun, would you defend yourself or would you try to run away? Defend m yself Try to run away
11. How strongly do you agree or disagree with the following statem ent of the law: A person is justified in using deadly force w hen and to the extent he reasonably believes such force is immediately necessary to protect himself or another against the other person’s use or attempted use of unlaw ful deadly force. 1 2 3 4 5
12. Have you heard or read about this case? YES NO If Yes, please explain:
Have you ever been a m em ber of N.R.A.? YES NO Have you or any m em ber of your fam ily ever been a m em ber of a group that supports gun control? YES NO
Strongly disagree
Strongly Agree
W hich of the following describes your opinion of the defendant, Christopher Deedy: 1 2 3 4 5 Very Negative
13. Nam e 3 people that you adm ire:
14. W hat 3 words or adjectives would you use to describe yourself?
1. 2. 3. Nam e 3 people that you do not adm ire:
Very Positive
15. Christopher Deedy is accused of second degree m urder. Mr. Deedy asserts that he was acting in self-defense. Is there anything about the nature of this charge that would prevent you from being a fair and im partial juror? YES NO If YES, please explain:
1. 2. 3.
The answers contained in this questionnaire are true and correct to the best of my ability.
Juror’s Name C O N FID EN TIAL
Date
JUROR QUESTIONNAIRE
Juror #:_________
FULL NAME: ___________________________________________________________ You have been selected to serve as a potential juror in a criminal case. This trial is expected to last between six to ten trial days. The court realizes that this is a very busy time of the year, and that jury service creates an inconvenience or hardship on many jurors. Would you be able to assist the court and serve as a juror in this case?
□ YES
□ NO, and the reason is because:
_____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ Confidential Juror Questionnaire
JUROR QUESTIONNAIRE
Juror #:
FULL NAME:
1.
You have been selected to serve as a potential juror in a criminal case.
This trial is expected to last three to four (3 - 4) weeks. The court realizes that a trial of this length will cause an inconvenience or hardship for virtually every single juror. Will you be able to perform your civic duty and assist the court by serving as a juror? ❒ YES
2.
If you are chosen to serve on this jury will you continue to be paid by
your employer? 3.
❒ NO, and the reason is because:
❒ YES
❒ NO
Is there any other reason why you would be unwilling or unable to
serve as a juror in this case? ❒NO
❒ YES If YES please explain:
PRELIMINARY QUESTIONNAIRE You have been chosen to serve as a potential juror in the case of United States of America vs. Joel G, Steven M and David R. Each of the defendants have been indicted on various charges including conspiracy and bribery. The defendants assert that they are Not Guilty of all the charges. This case has received a substantial amount of publicity over the course of the last two years and it would not be surprising or improper if you have heard, read, seen or discussed this case. The purpose of this questionnaire is to assist the Court in determining 3 things: 1. Have you heard or read about this case and if so, 2. Have you formed any opinions on whether any or all of the defendants are guilty of the charges; and, 3. Do you have an extraordinary hardship that would prevent you from serving as a juror in this case. Please answer the questions as thoroughly and as honestly as possible so the Court and the attorneys involved with this case can give full consideration to your answers. If you need additional space for any answer, please write on the back of this questionnaire. 1.
2.
3.
4.
5.
6.
What are your main sources of news [check () all that apply]: Local newspaper Other newspapers Television Radio Family/friends Internet Other: In the past 2 years, approximately how many times do you remember reading, hearing or seeing any media reports about former State Representative John Doe, any of the defendants listed above or this case? More than 20 Times 10 - 20 Times 6 - 10 Times 1 -5 Times None Of all the things you have heard, read or seen about any of the defendants or this case, what stands out the most in your mind? Have you formed any opinions on whether the defendants are guilty of any or all of the charges in this case? G YES G NO If YES, please explain: __________________________________________________________________________________ Is there any other reason why you could not serve as a totally fair and impartial juror in this case? G YES G NO If YES, please explain: __________________________________________________________________________________ This trial is expected to last approximately three to four (3-4) weeks. A trial of this length is an extraordinary hardship on virtually every juror. Do you have such a severe or extraordinary hardship that it would be impossible for you to serve as a juror in this case? G YES G NO
If YES, please explain and provide as much detail as possible:
_________________________________________________________________________________ _________________________________________________________________________________
SAMPLE SEXUAL ASSAULT VOI R DI R E QUESTIONS ASSOCIATIONS 1.
Have you, any family members or friends ever worked for, volunteered time or donated money to any rape crisis center, children’s shelter, battered women’s shelter or any similar organization? If yes: a. Who? b. What organization? c. What was the affiliation? d. Why did you (or this person) affiliated with the organization? e. How will that affect your ability to be a fair juror in this case?
2.
Do you, any family members or friends belong to any groups or organizations that support the rights of victims?
CREDIBILITY 3.
Have you ever known a person who made up a story about what happened to him or her? If yes: a. What did the person say happened? b. What really happened? c. Why did this person make up a story?
4.
The victim involved in this case claims that she was sexually assaulted by a young man who she met on the Internet. The young man says that this did not happen. What would be important to you in deciding who is telling the truth?
5.
In a he said/she said situation, what would be important to you in deciding who was telling the truth?
EMOTIONAL REACTIONS 6.
What do you believe are important qualities for jurors to have?
7.
In a situation where you or someone you love was falsely accused of sexual assault, what kind of juror would you want to sit on that case? Why?
8.
It is easy to listen to a criminal case and make a decision based on an emotional reaction. It is more difficult to listen to all of the evidence, weigh it and make a decision based on whether the State proved or did not prove its case. Give me an example of a time when you took a more difficult path because you felt it was the best course?
9.
There are some crimes which so upset people that just knowing that someone is accused of that crime is enough to make people believe that the person is guilty. What is your reaction to that? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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10.
Give me an example of crimes which would have that effect on you.
11.
Some people believe that if a man is accused of sexual assault, the charge is so awful that the man who is accused of the crime must be guilty. What is your reaction to that?
FALSE ALLEGATIONS 12.
What would you imagine the most difficult part would be in defending yourself against false charges?
13.
How would false charges of sexual assault affect a person?
14.
How do you prove something did not happen? For example, if you were in a room with a person and that person claimed you sexually assaulted them, how would you prove you didn’t?
15.
Some people feel that a woman would never falsely accuse anyone of sexual assault. Other people feel that a woman would falsely accuse someone of sexual assault. What is your opinion on this?
16.
What are some reasons why a woman would falsely accuse someone of sexual assault?
17.
Some people think that a woman would not make up a story about being sexually assaulted. Other people believe that a woman could make up such a story. What do you think?
18.
There has also been a great deal of publicity about false allegations of rape or sexual assault. What have you heard or read about those cases and what was your reaction?
19.
Have you heard or read of any cases where a person was falsely accused of sexual assault? If yes: a. What did you read or hear? b. Why did you follow the case? c. What was the outcome? d. What was your reaction to the outcome?
FALSE STATEMENT TO THE POLICE 20.
Have you or anyone you know ever been questioned or interrogated by the police? If yes: a. What were the circumstances? b. What were your feelings at the time? c. Did you make any mistakes? d. Did the police misinterpret what you said? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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21.
How would you feel if someone accused you of lying?
22.
How can a person prove something is the truth and not a lie?
INTEREST/STUDIES 23.
Have you, any family member or close friend ever studied any of the following areas: Domestic violence, women’s studies, rape, molestation, sexual disorders, sex education, or psychology?
24.
Have you, any family member or close friend ever worked as a social worker, welfare worker, family service worker, child psychologist, parapsychologist, psychiatrist, counselor, or similar occupation?
25.
Have you, any family member or close friend ever wanted to go into social work or in the mental health profession?
JURY DUTY 26.
Being a good citizen means voting, paying taxes and serving on jury duty. Being a good citizen does not mean that you must vote for a certain candidate, that you must pay the same amount of taxes each year, or that you must be a juror on a certain case. A good juror is the one who says, "This case makes me feel uncomfortable and is the not right case for me." How many jurors feel this way about this case?
27.
How would your friends and family members react if you sat on this jury and returned a verdict of not guilty?
28.
Given what you know to this point about this case, why would you be a good juror?
29.
If you were the one on trial instead of [NAME OF DEFENDANT], would you want someone such as yourself as a juror in this case? Why?
30.
What qualities do you possess that you feel will make you a good juror in this case?
MICHAEL IRVIN 31.
Did you hear about rape charges being brought against Michael Irvin of the Dallas Cowboys?
32.
What was your reaction when the woman admitted the charges were false?
NOT TESTIFYING 33.
Some people think that when someone is tried for sexual assault, they should testify and others think it is okay if they do not. What do you think about that? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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34.
[Juror’s Name], would you agree that if [NAME OF DEFENDANT] testifies, that some people think he will say anything to save his skin. Others may believe that if he does not testify, he has something to hide. I am between a rock and a hard place here. What do you think I should do?
35.
What might be some reasons why an innocent person would not testify?
36.
What are some reasons why a person falsely accused of sexual assault would not testify?
37.
Do you believe a truthful witness could be made to look like he was not telling the truth? Why?
38.
Have you ever said something to someone and they turned what you said around so that it meant something completely different? How did this make you feel?
39.
Some people feel that attorneys can take an innocent person’s statement and twist it around until it appears to be an admission of guilt. How do you feel about this?
40.
If a prosecutor could make you look like a bad witness even though you were telling the truth, would you testify? Why?
41.
If you were on trial, and you had a choice of testifying and possibly having your words turned against you, or not testifying, what would you do? Why?
42.
If you were on trial and you had the choice of testifying and running the risk that some jurors would not believe you even though you are telling the truth, or not testifying, what would you do?
43.
Why do you think one of our Constitutional rights that our Founding Fathers fought for was the right not to testify?
44.
I am afraid that some jurors are going to think that if [NAME OF DEFENDANT] is innocent, he would testify. However, other jurors have said that an innocent person could do himself more harm that good if he does testify. How do you feel this situation should be handled?
OPINIONS/ATTITUDES 45.
What can we do to stop or reduce the number of molestations or sexual assaults?
46.
What can we do to stop or reduce the number of false allegations of sexual assault or molestation?
47.
Tell me about a situation where someone took your conduct out of context? How did that make you feel? Why do people do that sometimes? How would you feel if they accused you of committing a crime? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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48.
How would you feel if someone misinterpreted and misrepresented your conduct in a particular situation?
49.
How do you think [NAME OF DEFENDANT] must feel being accused of a crime he did not commit?
POLICE 50.
Have you ever worked in the field of law enforcement? For whom did you work and for how long?
51.
Do you have any family or friends who work now, or have worked in the past, in law enforcement?
52.
When the police are investigating a charge, do you think they are fair to both sides?
53.
Have you ever heard of a situation where the police jumped to a conclusion and it turned out they were wrong? Tell us about that?
54.
Under what circumstances do you feel it is appropriate for a lawyer to aggressively cross-examine a police officer?
55.
Have any jurors, family members or friends ever had any business with or know any police officers or have you/they ever worked for, or applied for a job with, the Police Department?
56.
Do you think there would be a public outcry if it was learned that the police arrested someone on false charges?
PUBLICITY 57.
Have you heard about this case from the radio, television, newspaper, magazines or word of mouth? a. How did you hear about this case? b. What do you recall hearing, seeing or reading about this case? c. What was your reaction? d. Have you formed any opinion? e. What opinion did you form? f. Do you honestly believe that you could still be fair and impartial if you were selected as a juror in this case?
58.
Have friends, co-workers, neighbors, or family members talked about this case? If yes: a. Who? b. How long ago? c. How often has this case been discussed? d. What was said? e. What was your reaction to what was said? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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59.
Have you heard or read about the charges against [NAME OF DEFENDANT]? a. When did you read or hear about him? b. What was the source of your information? c. What did you read or hear? d. What was your reaction?
60.
How many articles or stories have you read or seen about this case?
61.
What is the first thing you remember reading or hearing about this case?
62.
How many times have you discussed this case? a. When? b. With whom? c. What did the other people say about this case? d. What did you have to say about this case?
63.
Of all the things you have read or heard about this case, what stands out in your mind the most?
64.
Why does that [fact, event] stand out?
65.
Have you ever participated in a discussion or conversation involving this case? a. When? b. With whom? c. What did the other people say about this case? d. What did you have to say about this case?
66.
Have you ever overheard any discussion or conversation about [NAME OF DEFENDANT] or this case? a. When? b. Who participated? c. What was said? d. What was your reaction?
67.
Do you have any family members or friends who work for the media (newspaper, radio, television, magazine, etc.)? a. Who? b. What is this person’s job? c. What is your relationship with this person? d. Has this person expressed any opinion about this case? e. What was the opinion? f. What was your reaction?
68.
Do you feel the media fairly presents both sides when they report on a criminal case? Why?
69.
Do you feel it would be easy or difficult for a person accused of a crime to receive a fair trial when there has been publicity? Why? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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70.
Sexual assault has received a great deal of publicity in the last few years. Some people think it is not as widespread as the media makes it, other people feel that it is even more widespread than the media suggests. What is your opinion?
SEXUAL ASSAULT 71.
Have you or anyone you know ever been the victim of any unwanted sexual contact? If it is not too personal, would you mind telling us about that?
72.
Some people believe that there is so much publicity about sexual abuse of young girls because the incidents have increased and the public needs to know. Other people believe that the reason there is so much publicity is that there aren’t more cases, it’s just that sensationalism sells. What is your opinion? Many people have strong feelings about sexual assault. What are yours?
73. 74.
Given the strong feelings many people have about sexual assault, how can [NAME OF DEFENDANT] get a fair trial?
75.
Have you followed any cases of alleged sexual assault or abuse in the media? a. What case did you follow? b. What was the outcome of that case? c. Why did you follow that case? d. What was your reaction?
76.
Has anyone ever told you about an experience involving sexual assault, abuse or molestation? If yes, was the person: a. an adult or child; b. male or female; c. victim or molester. d. What were you told? e. What was your reaction? f. What was your advice? g. What was the outcome?
77.
Has there ever been an accusation of sexual assault directed at someone you knew? If yes, a. What was the allegation? b. What was the outcome? c. What could have been done, if anything, to have prevented that allegation?
78.
The statistics show that one out of every three females, and one out of every five males, experience an unwanted sexual contact by the time they reach the age of eighteen. To many people this is a shocking fact. What is your reaction to this statistic?
79.
Because of these statistics, do you feel that every time someone brings these charges the charges are true? Why or why not? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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80.
Are you, any family member or close friends associated in any way with any group or association that wants to change the law as it relates to sexual assault, abuse or molestation?
81.
What would you do if you were falsely accused of sexual assaulting a woman?
82.
Prior to today, what was your opinion on the issue of sexual assault, abuse or molestation? a. What is your opinion now? b. If you were sitting in [NAME OF DEFENDANT]'s shoes, what would you do to make sure you got a fair trial?
SEXUAL ABUSE/SEXUAL ASSAULT/RAPE 83.
Have you, any family member or friend ever experienced unwanted sexual contact? a. Who? b. When? c. What happened? d. What did you or this person do? e. Were criminal charges filed? f. What was the outcome? g. How did you or this person feel about the outcome?
84.
It would be unusual not to know someone who has at some time in their life been molested, had some kind of unwanted sexual contact or was raped. I know it is embarrassing to talk about what has happened to this person and if you want to talk about this privately, please tell me. It is important that we know what kind of experiences you have had or someone that you know has had along those lines. It is my concern that if someone has had some kind of unwanted sexual experience that these feelings would affect their ability to be a fair juror in this case. Please raise your hand if you, a family member or any friend has ever been molested, had some kind of unwanted sexual contact or was raped. If yes, please raise your hand so we can talk about it in private.
85.
Have you, any family member or any friends ever had a bad experience of a sexual nature with a family member, religious leader, babysitter, doctor, teacher, acquaintance, or anyone else?
86.
The following question is very personal and sensitive. Many people, including myself, would answer the following question "yes" and would want to talk about in private. If anyone feels uncomfortable with answering the following question, I can assure you we can talk in private. With that assurance, let me ask you this: Have you, any family member or close friend ever had a bad experience of a sexual nature with anyone?
87.
I am concerned that if a juror has had an unwanted sexual experience they will have strong feelings and will hold it against [NAME OF DEFENDANT] Is my concern a valid one? Why? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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88.
Do you know anyone who has ever been accused of sexual assault or molestation? If yes, a. Was there an arrest? b. When did this occur? c. What was the outcome? d. What were your feelings at the time? e. How do you feel about the incident now? f. In light of that experience, how would you feel about serving as a juror in this case?
89.
Has anyone ever told you about an experience involving sexual assault, abuse or molestation? If yes, a. Was that person an adult or child? b. Male or female? c. Victim or molester? d. Was anyone arrested? e. What was the outcome? f. How did you feel about the outcome?
90.
Has there ever been an accusation of sexual assault or molestation directed at someone you knew? If yes, a. What was the allegation? b. What was the outcome? c. What could have been done, if anything, to have prevented that allegation? d. What was your reaction at the time? e. In light of that experience, how would you feel about serving as a juror in this case?
91.
Have you, a family member or close friend ever been sexually propositioned? If yes, please tell us about that, or we can talk about it in private.
92.
THE FOLLOWING QUESTION IS EXTREMELY IMPORTANT AND EXTREMELY SENSITIVE. IF ANYONE WANTS TO TALK ABOUT IT IN PRIVATE, JUST RAISE YOUR HAND AND I KNOW HIS HONOR WILL LET US TALK PRIVATELY. Have you, any family members or friends ever been sexually abused or had any type of unwanted sexual contact?
93.
Do you know anyone who has been raped or had any unwanted sexual contact? What happened, what was the outcome and how did you feel about the outcome?
TESTIFYING 94.
Every citizen accused of a crime has a right not testify. This is because the law says the prosecution has the burden of proving a person guilty and a Defendant does not have to prove he is innocent. How do you feel about this law? ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES
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95.
What are some reasons why an innocent person would not testify?
96.
What if the State did not prove their case. Do you still feel the person should testify? Why?
97.
If you were accused of a crime like this, would you testify? Why?
98.
What if the jurors didn’t believe you?
99.
I want to be the first one to tell you that [NAME OF DEFENDANT] is going to testify. What is your reaction to that?
100.
I have a concern that some jurors may feel that [NAME OF DEFENDANT] will not be truthful because there is so much at stake. What do you think about my concerns?
101.
How difficult do you think it would be for anyone accused of a crime like this to testify?
102.
Why do you believe that the Constitution guarantees each person the right not to testify in their own behalf? How do you feel about that guarantee?
103.
Some people think that when someone is charged with a crime that they should testify and others think its okay if they do not. What do you think about that?
104.
Some people would feel that a person has something to hide if he chooses not to testify. Other people would feel that a person would say just about anything to save his own neck. If you were in [NAME OF DEFENDANT]’s shoes, what would you do?
105.
What might be some reasons that a person accused of sexual assault would not testify?
106.
Do you believe that a truthful witness could be made to look like a liar? Why or why not?
107.
If you were given a choice of whether or not to testify on your own behalf and you knew that the prosecutors would do their best to make it look like you were not telling the truth, what would you do?
108.
We will be the first to tell you that [NAME OF DEFENDANT] will not hide behind the 5th Amendment, and that he will testify. What is your reaction to that?
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PUNISHMENT 109.
In a trial involving criminal charges there are two phases: One phase is for deciding guilty or not guilty; The other phase is known as the punishment phase. We do not expect to ever get to the second phase of this trial, however, it is necessary that we explore your feelings about the various punishment options. What are your feelings about discussing this issue even though we believe the jury will find [NAME OF DEFENDANT] not guilty?
110.
If a person is found guilty of sexual assault, what would you consider to be the appropriate punishment? Why?
111.
What factors would you want to consider in determining an appropriate punishment?
112.
People have many different reasons for wanting to impose a sentence on a person convicted of sexual assault. Some reasons are for rehabilitation, punishment or retribution. Which would be your reason for imposing a sentence?
113.
Some people could never consider probation for a person convicted of sexual assault. Other people feel the offender should be placed on probation and receive treatment. What do you feel?
REASONABLE DOUBT 114.
What does reasonable doubt mean to you?
115.
Do you think it is fair that a person can only be found guilty if the prosecution has proven it’s case “beyond a reasonable doubt”?
116.
Give me an example of a time when you had reasonable doubt about something.
MISCELLANEOUS 117.
What qualities do you possess that would make you a good juror in this case?
118.
Would you like to be a juror in this case? Why?
119.
[TO WOMEN JURORS] Would you describe yourself as a feminist, traditionalist or humanist?
120.
Is there any questions I should have asked but haven’t?
121.
Is there anything else I should know about you that would be important in deciding if you should be a juror in this case?
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Challenge For Cause
PUBLICITY 1.
[Juror's Name], you told us earlier that you had heard or read about this case?
2.
When we read or hear about a case we all tend to form some kind of opinion. Isn't that just human nature?
3.
For example, when you heard about the O.J. Simpson case, didn't you and millions of other people form some opinion on whether he was guilty or not guilty?
4.
There is nothing wrong with that. And when you heard or read about this case, it would have been only natural to form an opinion about this case. Wouldn’t you agree?
5.
I sense that the opinion you formed was that [NAME OF DEFENDANT] was probably guilty.
6.
You would agree with me that once a person forms an opinion, it is difficult, if not impossible, to set that opinion aside?
7.
And if a person said they could set that opinion aside, in reality, they might not be able to?
8.
I know that if I were a juror who had formed an opinion, I would not be able to set my opinion aside. So, wouldn't you agree that you might not be able to set your opinion aside?
9.
Wouldn't it be fair to say that in your mind [NAME OF DEFENDANT] starts out with one strike against him?
10.
You agree with me that in a case as serious as this that it wouldn't be fair if there were jurors who felt the Defendant had a strike against him?
11.
I honestly believe that if you had not heard or read about this case, you could be totally and completely fair. Wouldn't you agree?
12.
[Juror's Name], I appreciate how honest and candid you have been. Would you mind if I ask the judge to excuse you from being a juror in this particular case?
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Challenge For Cause
VICTIM OF SEXUAL ASSAULT 1.
Being a good citizen means a person should vote, pay taxes and serve on a jury. A good citizen does not have to vote for a particular candidate, pay the same amount of taxes each year or serve on a particular case. Would you agree or disagree with that?
2.
A good citizen is the one who says, “I do not feel I could be a fair and impartial juror in a case like this.” Do you agree that if a person feels that way, he/she should say that?
3.
It is human nature for people to make decisions based on things that have happened in their own life. Wouldn't you agree that this is human nature?
4.
Wouldn't you agree that in order for us to have the fairest possible jury, people who have been the victim of sexual assault probably could not be totally, completely and absolutely impartial in view of their own experiences?
5.
I have the feeling that if this was a burglary case or a theft case, you would be totally and completely impartial. Don't you agree with me?
6.
But because of your own experiences, it is only human nature that you could not be totally, completely and absolutely impartial in this case.
7.
And if I, the prosecutor or the judge asked you to set your own experiences aside, as human beings it is really impossible to do that?
8.
Would it be okay with you if I ask the judge to excuse you from being a juror in this particular case?
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VOIR DIRE QUESTIONS - DWI ELIMINATION QUESTIONS (BIAS OR PREJUDICE) 1.
Have you, any family members or close friends ever had a bad experience with a drunk driver? W ould you mind telling us about that? a.) b.)
W as there an accident? W as anyone injured?
c.) d.)
W hat happened to the drunk driver? W ould that experience cause you to start the trial believing that [client’s name] was guilty?
2.
There are people who have very negative feelings about drunk drivers. [Juror’s name], do you have very negative opinions about people who are accused of drunk driving?
3.
W ho else on the first row please raise your hand if you agree with [Juror’s name] that you also have very negative feelings about drunk drivers. [go row by row on this question].
4.
[Go back to the first juror who admitted having very negative feelings about drunk drivers] [Juror’s name], so would it be fair to say that given your very negative feelings about drunk drivers, that since the charge in this case is DW I, you would have a leaning or prejudgement, what lawyers call a bias or prejudice, against a person charged with drunk driving?
5.
[Go to all the other jurors who raised their hands to question #12] It would be fair to say that you would also have a bias or prejudice against a defendant in this kind of case?
6.
W hen you heard that the charge in this case was DW I, how many of you were thinking that the Defendant [DO NOT use your client’s name in this question. Humanizing your client will reduce the number of people who will answer this question]
7.
If the police arrest someone for D.W .I., how likely or unlikely is it that the person is guilty: Very likely Likely Somewhat Likely Very Unlikely
8.
Please tell me how strongly you agree or disagree with the following statements: A. If the police arrest someone for DW I, that person is probably guilty. 1 2 3 4 5 6 7 8 9 10 Strongly Agree Somewhat Agree Strongly Disagree Page 1 of 9 41
B. It should be against the law for a person to have 1 drink or more and then drive. 1 2 3 4 5 6 7 8 9 Strongly Agree
Somewhat Agree
10
Strongly Disagree
9.
On a scale of 1 to 10, how strongly do you support or oppose the law that says you can drink and drive? [1 = you strongly support it to 10 = you oppose it.]
10.
Have you had any experience with alcohol or intoxicated people that would have a bearing on (or influence you) your serving as a juror in a DW I case?
11.
Some people believe that certain types (races) of people have a more difficult time handling liquor. Do you agree or disagree with this statement?
12.
If you agree, what types (races) of people have a more difficult time handling liquor?
13.
If a person accused of DW I refused to take a breath test, would you believe that he was guilty?
EDUCATION QUESTIONS 14.
W hat would you consider to be too much to drink and drive?
15.
Do you agree or disagree with the following statement: a person can have 1 or 2 drinks and still have the normal use of their mental and physical faculties?
16.
Have you ever had one or two drinks at a friend’s house and then driven home?
17.
Did you have the normal use of your mental and physical faculties?
18.
If you were stopped by a police officer, would you be guilty, of DW I?
19.
W hat can we do to make sure that a person who has been accused of driving while intoxicated get a fair trial?
20.
W hy would you be a good juror in a DW I case?
21.
If a person is a diabetic and forgets to take their insulin, gets in their car, goes into insulin shock, and causes an accident, has that person committed a crime? W hy? Page 2 of 9 42
JUMPING TO CONCLUSIONS 22.
How likely is it that the officer would jump to a conclusion if he learned that the person he stopped had previously plead guilty to DW I?
23.
All of us have had a situation where we jumped to a conclusion and it turned out we were wrong. [Juror’s name], can you give me an example of a time when this happened to you?
24.
How likely or unlikely is it that a police officer could jump to a conclusion and be wrong: Very Likely Likely Somewhat Likely Unlikely Very Unlikely
25.
How likely or unlikely is it that a police officer could jump to a conclusion about a person being intoxicated and the officer is wrong: Very Likely Likely Somewhat Likely Unlikely
Very Unlikely
OUT ON YOUR FEET 26.
W hat does the term, “out on your feet” mean to you?
27.
Have you or any family members ever had an experience where you were out on your feet?
LEAVING THE SCENE OF AN ACCIDENT 28.
Do you know anyone who ever continued to drive after having an accident?
29.
W hat are some reasons why a person would continue to drive after getting into a minor accident?
CHARACTERISTICS ASSOCIATED WITH DRUNK DRIVERS 30.
W hat are some reasons other than alcohol that would cause someone to weave while driving?
31.
W hat are some reasons, other than alcohol, for why a person’s eyes would be bloodshot?
Page 3 of 9 43
32.
W hat are some reasons, other than alcohol, for why a person would stagger when they walk?
33.
W hat are some reasons, other than alcohol, for why a person would be unsteady on their feet?
34.
W hat are some signs that a person is exhausted, tired or sleepy?
35.
W hat are some signs that a person has high blood sugar?
36.
W hat are some signs that a person has had a stroke?
TESTS 37.
Have you ever known anyone who had to take any type of test that the police call field sobriety tests, but are actually coordination tests? W ould you tell us about that?
38.
W hat are your feelings about coordination tests, in general?
39.
W hat are your feelings about breath tests (where a person is asked to blow into a device designed to measure the amount of alcohol a person has consumed)?
40.
W hat are some reasons why an innocent person would refuse to take a breath test?
41.
Do you think it would be easy or difficult to prove that a breath test machine did not work properly?
42.
How reliable or unreliable do you believe breath test machines are: 1 2 3 4 5 6 7 Very Reliable
43.
Somewhat Reliable
8
9
10
Very Unreliable
W hy would a person, who is accused of driving while intoxicated, request a blood/alcohol test?
44.
How would you feel if you knew that [Client’s Name] requested a blood/alcohol test but the police refused? Page 4 of 9 44
45.
How do you feel you might perform on coordination tests if you were upset about being stopped by the police?
46.
How well would you perform on coordination tests when you are very nervous?
47.
How likely is it that a lab would make a mistake or mix up test results: Very Likely
48.
Likely
Very Unlikely
How reliable or unreliable are police administered coordination tests for determining if a person is intoxicated? Extremely Reliable
49.
Somewhat Likely
Reliable
Somewhat Reliable
Not Reliable
Please tell me how strongly you agree or disagree with the following statements: A. Police should use coordination tests that are so easy to pass, only an intoxicated
50.
person would fail them. 1 2 3 4 5 6 Strongly Agree Somewhat Agree Have you ever heard of a HGN?
51.
W hat is your understanding of how the HGN works?
52.
How reliable or unreliable do you believe such a test to be for determining intoxication: Very Reliable
Reliable
Somewhat Reliable Unreliable
7
8
9 10 Strongly Disagree
Very Unreliable?
DRINKING AND DRIVING 53.
On a scale of 1 to 10, how careful a driver are you? [1 = very careful to 10 = not very careful at all.]
54.
55.
Have you ever had a beer, a glass of wine or a cocktail and then later driven your car? a.) W ould you tell us about that? b.)
How long after you had a beer, glass of wine or a cocktail would you feel it was safe to drive?
c.)
W e want to be the first to tell you that [Client’s Name] did have two or three beers several hours before he was stopped by the police. W hat is your reaction to that?
How many times in the past 5 years have you had 1 or 2 drinks and driven your car? Page 5 of 9 45
56.
Have you ever been driving and saw another driver that you thought was under the influence? W hat did you do in that situation?
57.
Have you ever stopped someone from driving because they had too much to drink?
58.
Has anyone ever stopped you from driving because you had too much to drink?
ADDICTION 59.
Do you feel alcoholism is an illness, addiction or weakness?
W hy?
60.
I am addicted to [smoking, caffeine, chocolate]. Bubba will tell you [or you will learn] that he is addicted to alcohol. If it is not too personal, will you share with Bubba and me something to which you are addicted? OR: W hat are some examples of addictions you have heard of and believe are true.
61.
W ITHOUT MENTIONING ANY NAMES, do you know anyone who is addicted to alcohol?
62.
How do you break the cycle of addiction?
SPECIAL INTEREST GROUPS 63.
Have you or any family members ever contributed time or money to MADD or DADD or SADD?
64.
W hat is your opinion of MADD?
65.
Tell us how strongly you agree or disagree with the views of groups such as MADD: Strongly agree
Agree
Somewhat Agree
Disagree
Strongly Disagree
POLICE OFFICERS 66.
Some people believe that police officers who have been assigned to a DW I task force believe every driver they stop is intoxicated. Other people feel that a task force officer would be more qualified than the average police officer to determine if a person is intoxicated. W hat is your view or opinion? Page 6 of 9 46
67.
How often do you believe the police charge an innocent person with DW I: Always
Very Often
Occasionally
Rarely
Never
68.
If your closest friend was stopped by the police and charged with DW I, would you assume he or she was guilty?
69.
W hat if you saw the police stop and charge someone you did not know with DW I, would you assume that person was guilty?
ALCOHOL 70.
How many times a month do you have some type of alcoholic drink?
71.
W hen you drink, do you usually have beer, wine or liquor?
72.
Do you or any family members own a business that sells alcohol or alcoholic drinks?
73.
Do you have any family members or close friends that you feel drinks too much or is an alcoholic?
74.
If that person was stopped by the police and charged with DW I, would you assume that person was guilty?
IMPAIRMENT 75.
After how many (beers, glasses of wine or drinks) would your driving been impaired?
76.
After how many (beers, glasses of wine or drinks) would the average person’s driving be impaired?
77.
It is not against the law to drink and then drive. W hat is against the law is if a person is mentally or physically impaired when driving. Do you agree or disagree with this law?
78.
W hat does, “mental impairment” mean to you?
79.
W hat are some characteristics of mental impairment?
80.
W hat does, “physical impairment” mean to you? Page 7 of 9 47
81.
W hat are some characteristics of physical impairment?
82.
Do you think that anybody who has 1 or 2 drinks and drives, is going to be mentally impaired?
83.
Do you think that anybody who has 1 or 2 drinks and drives, is going to be physically impaired?
PRIOR DWI CONVICTIONS 84.
W e will be the first to tell you that [client’s name] has previously plead guilty to three prior DW I charges. W ould you start the trial believing that if a person had previously plead guilty to DW I charges that he must be guilty in this case?
85.
If a police officer learned that a person he had stopped had been previously been convicted of a DW I offense, how would that fact affect or influence the officer?
86.
If a person has previously plead guilty to a charge, if that person is charged with another crime, in your mind, would that person start the trial out with a strike against him or with a clean slate?
PUNISHMENT (TEXAS) 87.
W ho would agree with and who would disagree with, a law which says that a person who is convicted of DW I for a third time shall be sent to prison as punishment? W hy?
88.
[Depends upon the case / I’d have to hear the facts.] Give me an example of a situation where a person had been convicted three (3) or more times of DW I, but deserves probation and not prison.
89.
If a person had been convicted of DW I three (3) or more times, some people could never consider sending that person to prison. Other people could never consider probation. W hich of these two (2) categories do you fall into?
90.
W hat kinds of conditions of probation would you feel would be appropriate for a person who had been convicted of DW I three (3) or more times?
Page 8 of 9 48
91.
There have been a number of studies which have shown that education, family support and medical treatments are far more effective and less costly when a person is suffering from alcohol addiction. Do you agree or disagree with these studies? W hy?
92.
Studies have shown that people who complete treatment programs are much less likely to commit another crime than people who complete a prison sentence. Do you agree or disagree with these studies? W hy?
93.
How many times would a person have to be convicted of DW I before you would say that you could not even consider giving them probation? W hy?
94.
Fill in the blank for us: If a person was convicted of DW I for prison time. W hy do you feel this way?
times, I would always vote
95.
W hat would be some of the benefits of giving a person probation as opposed to sending them to prison?
MISCELLANEOUS 96.
Have you ever served on a jury or grand jury where alcohol was an issue in the case?
97.
Do you have any moral, religious or personal views that disapprove of drinking alcohol?
98.
Is there any question that I should have asked you that would have given me an insight as to your serving as a juror in a DW I case?
99.
As you sit there right now, are you thinking to yourself that [your client’s name] is probably guilty of the charge?
100. Is there anyone who is sitting there right now thinking to yourself that you are already leaning in favor of the prosecution? 101. W hat was your initial reaction when you heard the charges in this case? 102. W hen you heard the charges and looked at [your client’s name], what went through your mind?
Page 9 of 9
Voir Dire - State v. George Zimmerman State Attorney’s Office Does anyone on the jury panel know anyone who works in the State Attorney’s Office?
Already Formed Opinion Is there anyone on the panel that is sitting there saying to yourself, I think the Defendant is guilty of the charge? It ok if you feel that way, we just need to know. Anyone feel this way?
Mark O’Mara and Don West As the Judge told you, my name is Mark O’Mara and I have practiced law in the Orlando area for more than 30 years. No, I am not related to the great golfer, Mark O’Meara and you would know that if you ever saw me swing a golf club (Mark - poking a little humor at yourself is always a good thing). With me is my friend and co-counsel, Don West. We are criminal defense lawyers. Does anyone on the panel have a negative opinion of criminal defense lawyers in general?
George Zimmerman We stand here today with my client and my friend, George Zimmerman. Is there anyone on the panel that knows or has met George?
Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
Page 1 of 7 50
Publicity What is your main source of news (newspaper, tv, radio, internet, friends, etc.)? And what specific newspaper, tv or radio station, website do you listen to most often? This case, as you know, has received a great deal of publicity. If you have heard of Trayvon Martin, George Zimmerman or this case, please raise your hand. How many times have you heard, read or talked about this case? Of all the things you have heard or read about this case, what stands out the most in your mind? What else do you recall reading or hearing? Do you recall reading or hearing anything about the injuries to George that night? What opinions or feelings have you formed about George or this case? Based on what you have heard or read, have you formed any opinions on whether George is guilty of the charge in this case? On a scale of 0 to 10, how strongly held are those opinions? Some people can set opinions aside and other people can not. Are you the type of person who can set an opinion aside?
Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
Page 2 of 7
51
Holding George to the Same Standard The prosecutor asked if anyone would hold George to a lower standard because of the publicity surrounding this case. I want to ask you the reverse of this question. Because of the publicity in this case, is there anyone that would hold George to a higher standard? Let me ask this question this way. On a scale of 0 - 10, how strongly do you agree or disagree with the following statement: In a high profile case, I would hold George to the same standard and not a higher standard than anyone else. 0 means strongly disagree and 10 means strongly agree.
People Who Start Fights Has anyone ever known a person that liked to start fights? If Yes, can you give me an example of a time when this person started a fight?
Fights I want to ask the following question regarding you, your spouse and your kids: Have you, your spouse or any of your kids ever been in a fist fight? Let me ask this question a little differently - have you, your spouse and your kids NEVER been in any type of fist fight? On a scale of 0 - 10 how strongly do you agree or disagree with this statement - People who start fights deserve what happens to them. Has anyone on the panel ever heard or read of a situation where a person punched someone and killed them? Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
Page 3 of 7 52
Military Service Has anyone on the panel or your spouse ever served in the military? (First and foremost, thank them for their service to our country.) If yes, who, highest rank attained and did you (this person) ever serve in a combat situation?
Law Enforcement Has anyone on the panel or your spouse ever worked for any law enforcement agency? If yes, who, what law enforcement agency an for how many years?
Split Second Decision Ever been in a situation where you had to make a split second decision? Would you agree with me that you did what you thought you had to do at the time? In retrospect, there was probably something else you could have done but at the time you made the best decision that you could. Please raise you hand if you agree with me? Anyone disagree?
Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
Page 4 of 7
53
Gun Ownership Please raise your hand if you currently own a handgun, rifle or shotgun? Why do you own a handgun? On a scale of 0 - 10 (0 being strongly disagree and 10 being strongly agree) how strongly do you agree or disagree with the 2 nd Amendment Right to Bear Arms? Do you currently favor or oppose gun control? Have you ever favored gun control? Do you or any family members belong to any group or organization that favors or advocates gun control? Have you or any family member ever had a bad experience involving any type of gun, rifle or shotgun? If Yes, would that experience affect your ability to be a fair and impartial juror in this case?
Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
Page 5 of 7
54
Self Defense Speaking of split second decisions, I now want to ask you some questions about your views and opinions on self defense. Has anyone on the panel ever heard or read of a situation where a person was acting in self defense to protect themselves or someone else? Has anyone ever been in any situation from a school ground fight to a bar fight to even defending our country where you hit someone to defend yourself? Show of hands: Has anyone ever been in a situation where you feared that someone was going to hit you or physically hurt you? Anyone on the panel feel it is just wrong to defend yourself if you honestly believe you are about to be seriously hurt? I want to ask each person on the panel this question - If you honestly believed that someone was about to seriously hurt you and you could not get away, would you defend yourself? [If anyone says they would not defend themselves, ask the following question] Can you think of any situation or circumstance where you would defend yourself in a fight? (If there is an objection, simply ask, Can you think of any situation or circumstance where you would defend yourself) [To those jurors who do NOT raise their hands] So are the rest of the members of the panel telling us that each of you are the type of juror that is open to the idea that a person has that right to defend himself if they honestly believe that someone was about to seriously hurt or harm them. The law in Florida says that when deciding if a person was acting in self defense, you have to decide that question by looking at the situation from the defendant’s standpoint. Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
Page 6 of 7
55
Can everyone promise the Judge that you will follow the law and decide the issue of self defense from the defendant’s perspective? Can each you assure the prosecutor that you will follow the law as it relates to self defense? And finally, can each of you promise George that you will follow the law of self defense and consider what happened as if you were standing in his shoes?
Miscellaneous Is there any question I should have asked but haven’t that would tell us something very important about you being a juror in this case? Is there anything else that we should know about you that would be important in deciding if you should or should not be a juror in this case? What 3 words or adjectives would you use to describe yourself? Name 3 people you admire or respect? Name 3 people you do not admire or respect? Why would you be a good juror for this case? If at the end of the case, you have a reasonable doubt, do you have the courage to find George Not Guilty?
Voir Dire - George Zim m erm an
Attorney-Client and W ork Product Privileges
Page 7 of 7
Voir Dire - State of Texas v. John Doe Hardship - Cause 1. 2. 3. 4. 5. 6.
You feel that you have a genuine hardship? Do you believe that your hardship would distract you from paying 100% attention? You are likely to be thinking about [insert the hardship] during the trial? Agree that you would be willing and able to serve if you did not have this hardship? If the prosecutor or judge asked you these same questions, would your answers be the same? Do you have any objection if I ask the Judge to excuse you from being a juror in this case?
Hardship - Rehabilitation 1.
Would you agree that a trial of this length is a hardship on virtually every single juror.
2.
Do you agree that it is important to have a cross section of the community to serve on our juries?
3.
That is why we are needing to qualify 50 people and of that number only 14 will end up serving on the jury. Are you with me?
4.
Do you agree that serving on a jury is both an honor and a privilege?
5.
If a loved one of your was on trial for a very serious matter, wouldn’t you want people such as yourself to make the sacrifice and serve on the jury?
6.
I understand it is a hardship but would you be willing to make the sacrifice and serve as a juror if you end up being selected.
Page 1 of 1
Voir Dire - State of Colorado v. John Doe
Publicity - Cause 1.
Have you heard about this case or the Defendant from the radio, television, newspaper, magazines, Internet or any other media source? If Yes, a. How did you hear about this case? b. How many times have you heard or read about this case? c. Generally, what do you recall hearing or reading about this case? d. What was the first thing you read or heard about this case? e. What was the last thing you heard or read about this case?
2.
Did you tend to believe the publicity in this case? Why?
3.
Based on what you heard, read or saw, what opinions have you formed about the Defendant or this case?
4.
My sense is, given the publicity, you start out thinking that my client is guilty of the charge. Would you agree with me (or, “Is my sense right?”)
5.
Would you agree that you feel strongly about this?
6.
A person should not serve as a juror if they start out believing, as you do, that the person on trial is guilty, fair to say?
7.
If the prosecutor or judge asked you these same questions, would your answers be the same?
8.
Do you have any objection if I ask the Judge to excuse you from serving as a juror in this case? Page 1 of 1
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Developing a Trial Story: Using the Techniques of the Storyteller
Speaker:
Tyrone Moncriffe
Tyrone C. Moncriffe & Associates 1001 Texas St. Ste. 720 713.224.6628 Phone 713.224.6475 Fax tyronemoncriffe@yahoo.com Email www.tyronemoncriffe.com Website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
DEVELOPING A TRIAL STORY USING THE TECHNIQUES OF THE STORYTELLER
I realize quite early in my practice, that I was talking to jurors, but I was not talking with them. I asked myself one question when I first started practicing law; why were some trial lawyers more effective in the courtroom than others? But that simple question lead me on a journey or quest for an answer. The answer turned out to be as simple as the question; the better trial lawyers were those who were master storytellers. Why were the storytellers the better trial lawyers? Why were stories so impactful? It turns out that the answer to those questions were not so simple. The answer to those questions was like asking someone to describe how it feels to be in love or describe the feeling you get if you saw the sun rise over ice capped mountains or that your child was named the valedictorian of his or her high school class. You can feel it; but you cannot describe it. There are parts of my presentation; I must admit that cannot be described, but I know that lawyers are trained to analyze. This paper is my attempt to analyze the methods of the master storyteller’s and how we can use those methods in our presentations. Without a doubt, one of the most important inventions of western civilization was Johannes Gutenberg’s Press. The mass production of the bible allowed people to read for themselves, and thus stimulated the greatest power in the world, according to Einstein, the human imagination. The use of words and how they stir the imagination is the real theme of this paper. Storytelling is a critical tool for trial lawyers and it’s the use of this tool that’s critical. I’ve traced the use of words by history’s master storytellers. In an attempt to see how we as trial lawyers can use words, to create drama, to set scenes, connect viscerally with jurors, and place jurors in a trance state. How can we tell our clients story better? Every trial lawyer knows the importance of primacy and recency, what a jury first hears and last hears are critical to persuasion. Let’s analyze how some of the master storytellers use primacy to set scenes.
1
Let’s analyze the opening words of history’s greatest stories to see how scenes are set immediately: “…He has successfully avoided meeting his landlady on the staircase. His garret was under the roof of a high, five stored house, and was more like a cupboard than a room. The landlady, who provided him with garret, dinners, and attendance lived on the floor below, and every time he went out, he was obliged to pass her kitchen, the door of which invariably stood open. And each time he passed, the young man had a sick, frightened feeling, which made him scowl and feel ashamed. He was hopelessly in debt to his landlady and was afraid of meeting here.” Fyodor Dostoevsky, Crime and Punishment, 1866 The gripping opening of Edgar Allan Poe in The Tell-Tale Heart: “True! --Nervous -- very, very dreadfully nervous I had been and am! But why will you say that I am mad? The disease had sharpened my senses --- not dulled them. Above all was the sense of hearing acute. I heard all things in the heavens and earth. I heard many things in hell. How, then am I mad. Hearken! And observe how healthily --- how calmly I can tell you the whole story.” Edgar Allan Poe, The Tell-Tale Heart, 1843 “It was the best of times, it as the worst of times, it was the age of wisdom, it was the age of foolishness it was the epoch of belief, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way --- in short, the period was so like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree comparison only. “ Charles Dickens,
2
A Tale of Two Cities, 1859
Ernest Hemingway inexorably pulls you into the life of Robert Cohn in The Sun Also Rises with short pointed sentences. “Robert Cohn was once middleweight boxing champion of Princeton. Do not think that I am very much impressed by that as a boxing title, but it meant a lot to Cohn. He cared noting for boxing in fact he disliked it, but he learned it painfully and thoroughly to counteract the feeling of inferiority and shyness he had felt on being treated as a Jew at Princeton. He was really very fast. His nose permanently flattened. In his last year at Princeton he read too much and took to wearing spectacles. I never met anyone of his class who remembered him. They did not even remember that he was middleweight boxing champion.” Ernest Hemingway The Sun Also Rises, 1926 “I sent one boy to the gas chamber at Huntsville. One and only one. My arrest and my testimony, I went up there and visited him two or three times. Three times. The last time was the day of his execution. I didn’t have to go but I did. I sure didn’t want to. He’d killed a fourteen-year-old girl and I can tell you right know I never did have no great desire to visit with him let alone go to his execution but I done it. The papers said it was a crime of passion and he told me there wasn’t no passion to it… he told me that he had been planning to kill somebody for about as long as he could remember. Said that if they turned him out he’d do it again. Said he knew he was goin to hell… I watched them strap him into the seat and shut the door. He might of looked a bit nervous about it but that was about all. I really believe that he knew he was goin to be in hell in fifteen minutes. What do you say to a man that by his own admission has no soul?” Cormac McCarthy No Country for Old Men, 2005 Ted Sorenson the brilliant advisor and speech writer for John Kennedy made an observation of the 1960 election between Kennedy and Nixon. He said this is the first time in American history were images became more important than words. These authors used words to create riveting images: “A huge red transport truck stood in front of the little roadside restaurant. The vertical exhaust pipe muttered softly, and an almost invisibly haze of steel – blue smoke hovered over its end. It was a new truck, shining red, and in twelve inch letters on its side Oklahoma City Transport Company. Its double tires were new and a brass padlock stood straight out from the hasp on the big back doors. Inside the screened restaurant a radio played quite dance music turned low the way it is when no one is listening. A small outlet fan turned
3
silently in its circular hole over the entrance, and flies bussed excitedly about the doors and windows, butting the screens. Inside, one man, the truck driver, sat on a stool and rested his elbows on the counter and looked over his coffee at the lean and lovely waitress. He talked the smart listless language of the roadside to her. “I seen him about three months ago. He had a operation cut somethin out. I forgot what.” And she --“doesn’t seem no longer ago than a week I seen him myself. Looked fine then. He’s a nice sort of a guy when he ain’t stinko” now and then the flies roared softly at the screen door.” John Steinbeck The Grapes of Wrath, 1939 Upton Sinclair uses descriptive words to create images that turn your stomach in The Jungle as he illustrates of how sausages were made in the early 20th century. “There would be meat stored in great piles in rooms; and the water from leaky roofs would drip over it, and thousands of rats would race about on it. It was too dark in these storage places to see well, but a man could run his hand over piles of meat and sweep off handfuls of the dried dung of rats. These rats were nuisances and the packers would put poisoned bread out for them; they would die, and then rats, bread, and meat would go into the hoppers together. This is no fairy story and no joke; the meat would be shoveled into carts, and the man who did the shoveling would not trouble to lift out a rat even when he saw one --- there were things that went into the sausage in comparison with which a poisoned rat was a tidbit. There was no place for the men to wash their hands before they ate their dinner, and so they made a practice of washing them in the water that was to be ladled into the sausage. There were the butt ends of smoked meat, and the scraps of corned beef, and all the odds and ends of the waste of the plants that would be dumped into old barrels in the cellar and left there…some of it they would make into smoked sausage --- but as the smoking took time, and was therefore expensive they would call upon their chemistry department, and preserve it with borax and color it with gelatin to make it brown. All of their sausage came out of the same bowl, but when they came to wrap it they would stamp some of it “special” and for this they would charge two cents more a pound.” Upton Sinclair The Jungle, 1906 with words Claude Brown describes the horrors of heroin as it invades Harlem in Manchild in the Promised Land. Heroin had just about taken over Harlem. It seemed to be a kind of plaque. Every time I went uptown, somebody else was hooked, somebody else was strung out. People talked about them as if they were dead. You’d ask about an old friend and they’d say “Oh well, he strung out.” It wasn’t just a comment of an answer to question. It was a eulogy for someone. He was just dead, though. At that time, I didn’t know anybody who had kicked it. Heroin had been the thing in Harlem for about five years and I don’t think anybody knew anyone who had kicked it. They knew a lot of guys who were
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going away getting cures, and coming back, but never kicking it. Cats were even going into the army or to jail, coming back, and getting strung out again. I guess this was why everybody felt that when somebody was strung out on drugs, he was through. It was almost the same as saying he was dying. And a lot of cats were dying.” Claude Brown Manchild in the Promised Land, 1965 In Cold Blood by Truman Capote should be a must read for every trial lawyer. It is the first nonfiction story written in narrative structure. His funeral scene is poignant and moving: “The four coffins, which quite filled the small, flower – crowded parlor, were to be sealed at the funeral services --- very understandably, for despite the care taken with appearances of the victims, the effect achieved was disquieting. Nancy wore her dress over cherry – red velvet, her brother a bright plaid shirt; the parents were more sedately attired Mr. Clutter in navy-blue flannel his wife in navy-blue crepe; and it was this especially that lent the scene an awful aura the head of each was completely encased in cotton, a swollen cocoon. Twice the size of an ordinary blown-up balloon and the cotton because it had been sprayed with a glossy substance twinkled like Christmas tree snow.” Truman Capote In Cold Blood, 1966 How do the great artists use the concept of recency in their writings and what can we learn as trial lawyers? Let’s examine some of the legendary stories: “She threw out hands to him palms up, in the age old gesture of appeal and her heart, again, was in her face. “No”, she cried “all I know is that you do not love me and you are going away! Oh, my darling, if you go, what shall I do?” …“Scarlett, I was never one to patiently pick up broken fragments and glue them together and tell myself that the mended whole was as good as new. What is broken is broken – and I’d rather remember it as it was at its best than mend it and see the broken places as long as I lived. Perhaps, if I were younger – “he sighed”. But I’m too old to believe in such sentimentalities as clean slates and starting over… I couldn’t live with you and lie to you and I certainly couldn’t lie to myself. I can’t even lie to you now. I wish I could care what you do or where you go, but I can’t. He drew a short breath and said light but softly “my dear, I don’t give a damn.” Margaret Mitchell Gone with the Wind, 1936 Harper Lee’s To Kill a Mockingbird should be required reading for every criminal defense lawyer. Atticus Finch speaks eloquently about equality in his final summation: “One more thing gentleman, before I quit, Thomas Jefferson once said that all men are created equal, a phrase that the Yankees and the distaff side of the executive branch in Washington are fond of hurling at us. We know all men are not created equal in the sense
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some people would have us believe – some people are smarter than others, some people have more opportunity because they’re born with it, some men make more money than others, some ladies make better cakes than others – some people are born gifted beyond the normal scope of most men. But there is one way in this country in which all men are created equal there is one human institution that makes a pauper equal of a Rockefeller the stupid man the equal of Einstein, and the ignorant man equal of any college president, that institution, gentleman, is a court.” Harper Lee To Kill a Mockingbird, 1960 Jim Perdue says in I Remember Atticus, “The moral of a trial story is about empowerment. Inspiring the jury to do something for someone who is weak, vulnerably, and not able to make things right without the jury’s help. Legal education denies emotion; students are taught the cold logic of inductive reasoning. But inductive analysis is a faulty road map for the courtroom. Ordinary citizens resolve conflicts by deciding first what seems right and the making the facts fit their sense of justice.” Jim Perdue I Remember Atticus, 2004 Trial lawyers have one of the most unusual occupations of mankind. We tell stories to 12 people whom we have never seen in our lives about a past event that they have absolutely no personal interest in. We can use riveting words to capture our jurors’ imaginations in opening statements, paint pictures in direct and cross-examination, and use the concept of recency in final summations Every trial lawyer should take an acting course as horrible as this sounds to logical thinkers. We need to learn how to use space and create rhythm in our presentation, project our voices, create tension or drama with pauses and gestures, developed stage presence, and learn how to tell a story to create a trance state in your audience. The techniques of storytelling are so powerful because they bring motion and
What do we do with the story after we have our techniques and story line in order though? After we have identified the universal theme in our client’s story, one that jurors can identify with, what next? Its one thing to read the words of great artist, but it’s quite another to transfer those words, with effect, to a live audience. A trial lawyer must be able to stand before a live audience and tell a compelling story. We must develop skills of the writer and actor.
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Suggested Reading
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Fire the Next Time – James Baldwin
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Crime and Punishment – Fyodor Dostoevsky
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The Tell -Tale Heart – Edgar Allen Poe
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A Tale of Two Cities – Charles Dickens
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The Sun Also Rises – Ernest Hemingway
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No Country for Old Men – Cormac McCarty
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The Jungle – Upton Sinclair
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Manchild in The Promise Land – Claude Brown
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Black Water – Joyce C. Oates
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In Cold Blood – Truman Capote
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The Grapes of Wrath – John Steinbeck
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To Kill a Mockingbird – Harper Lee
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Moby Dick – Herman Melville
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Animal Farm – George Orwell
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Guns of August – Barbara Tuchman
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Gone with the Wind – Margaret Mitchell
Native Son - Richard Wright
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I Remember Atticus – Jim Perdue
emotion to the courtroom. The key to storytelling is telling your story in the present tense; as though it is happening now. The emotional state will transfer you and your audience to that critical time and place. The story takes you and your jury to another world; a world and an experience that you and your jury will share together. It begins with doing something that’s counterintuitive for the trial lawyer, reading literature.
A GREAT TRIAL LAWYER W. MARK LANIER TELLS US WHY AND HOW WE SHOULD TELL STORIES WHY TELL STORIES? In short, people learn better with stories. Why is that so? A number of reasons: Stories are attention getters. People get involved in stories and pay better attention to stories as opposed to factual dissertations. People remember stories. If you ever take a memory course, the fundamental method for memorization is to take one or more facts and turn them into a story. Stories plug into the mind much better than facts. Stories by-pass defense mechanisms. Defense mechanisms, we are told, are psychic mechanisms we use to resist feeling guilt, anxious, and a variety of other unpleasant emotions. It may be easier to think of it in terms of if you or someone close to you “get defensive”. Think about what triggers defensiveness in you.
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For example, if someone says “I think you are a bad trial attorney because you (blank),” you start, at least in your mind, planning a defense to the accusation (i.e., “I’m not a bad attorney because (blank)”). What a story or metaphor accomplishes is an end run around the defense mechanism. Like an Aesop fable, “Once upon a time, there were two bunnies. A fast one and one who was a good jumper”. The person hearing the metaphor does not initially know where the identification attaches. Therefore, the message is digested before the identification and or defense happens. Here is another example that may help clarify this point. If a therapist were to say to a couple referred to her for marital problems, “It’s useless to blame one another in a marital tiff,” then one person in the couple will think of a time the other was clearly wrong. Ammunition is stockpiled for a strong defense. He or she will surely be focused on the particulars of their problems and miss the point. Instead, you could say. When you mix vinegar and baking soda, you will get bubbles. It is useless to dwell on who’s at fault – the baking soda or the vinegar. Neither person in the couple can immediately identify with the vinegar or baking soda; so, the point about the futility of blame is digested rather than diverted by a defense mechanism. People identify with stories. When most folks hear a story, they grab a hold of some aspects of the story and begin to cast themselves into the story/experience. Empathy, understanding, anger – the full panoply of emotions can be transferred from a story into a personalized experience for the listener.
Stories simplify difficult concepts and issues. Use stories to “un-complicate” things. Stories make it possible to easily understand complex rules of law and legal positions. Jurors, after all, have not been to law school. They want to apply what they know about right and wrong to the facts of your case. You are not going to implant your law degree into their brains no matter how hard you try. You can read definitions of “proximate cause” or preponderance of the evidence” all day long and all you will receive back are blank stares! So, if you want to get your point across, then put your legal definitions into the same stories and themes they already understand. For example, in civil business dispute, you could say, “My client may be the tortoise, but the other is the hare. He can have all the potential in the world but my client did all the work! Just because we simply did our job and trusted he would do his part, which does not mean we should be cheated through his laziness.” It is almost impossible to oversimplify you case for a jury- the simpler, the better.
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HOW TO TELL STORIES Mock Trial Research Watching ordinary people make sense of your case is something you really need to experience. It is also one of the best sources of trial themes and stories. Research jurors will take the facts of your case and try to understand them. In order to do this feat, they will simplify your facts and use their own home-spun analogies. They put the facts into a conceptual framework in which they are able to make sense of it, all you have to do is listen. We mock trial almost all of our cases. No major manufacturing company today would release a new product without focus testing. Could you imagine the folks at Pepsi saying, “You know let’s just try hot pink cans for a while and see if our sales go up!” Sounds ridiculous, yet I still meet trial attorneys who take a case to court without knowing whether they are going to win or lose it first! When it is time for people to convince one another, like during deliberations, analogies will rampant. What you will hear is, “When he said that, it made me think of the time….”, or “That sounds like…..to me” or “My Papa used to always say….” Use of “Household” Themes Another idea I find useful is to look for what I call “anchors” in the stories I plan to use. An anchor is something that will help keep the analogy in the jurors’ mind. The anchor can trigger a memory of the point you want the jurors to remember. For example, common household items that the jurors are likely to encounter during the trial are good anchors. In explaining the spread of Asbestosis in lungs over time, we used moldy bread. In telling the story, I note how my son can spot mold on bread before anyone else, but in a few days, everyone can see the mold. This method is simpler than trying to explain ‘A’ and ‘B’ readers to the jury. Plus, there is the added benefit of tying an “anchor” to the bread. Hopefully, whenever a juror sees a piece of bread during the trial, the asbestosis story would be triggered by the anchor.
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TRANSFORMING WORDS INTO ACTION Good lawyers communicate, Great Lawyers connect “How does an entire room of people become a single body of thought?” asked Joshua Karton a communication expert. Unlike a writer, a trial lawyer must use voice, body, eye contact, pauses, and gestures to paint a picture. A trial lawyer, just like an actor must be able to hold an audience with courtroom presence alone by using voice inflection and silence. Joshua Karton makes a poignant point in Communication Arts for the Professional when he says, “Who we don’t trust, are actors who seem more concerned with presenting themselves, with protecting their performances, than with connecting with others.” Ultimately, the objection of any trial lawyer should be to connect with the jury, using the tools of the storyteller is a valuable tool in facilitating that objective. The great trial lawyer Gerry Spence says: “The problem is that we, as lawyers have forgotten how to speak to ordinary folks… lawyers long ago abandoned ordinary English. Worse, their minds have been smashed and serialized, and their brain cells restacked so that they no longer can explode in every direction with joy, love, and rage. They cannot see in the many colors of feeling. The passion is gone replaced with the deadly drowning of intellect, and the sounds we make are all alike. Like machines mumbling and grinding away, because what was once freethe stuff of storytelling – has become rigid, flags and gears that convey nothing…” Sandra Zimmer of The Self Expression Center trains presenters to find their core being, their authentic self before they transfer information to others. She trains you to be comfortable just being yourself. The jury wants to hear our client’s story and we are the narrators. We cannot read the story, we have to create it like theater, in the courtroom. The jurors will forgive us for being inarticulate, forgetful, blurry eyed, but they will never forgive us for not being authentic. In the end, we are all storytellers, but the story is not just about our clients. It is the story of our country and what it stands for. It is the story of ourselves and what we stand for. It is the story of guilt and innocence. It is a story of just punishment when guilty. It is a story of due 1
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process. Ultimately, it is always a story about the price of freedom. We can all find creative ways to pay that price.
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Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Changes to the Advertising Rules and What Criminal Defense Lawyers Need to Know
Speaker:
Brent Mayr
Mayr Law, P.C. 5300 Memorial Dr Ste 750 Houston, TX 77007-8228 713.808.9613 Phone 713.808.9991 Fax bmayr@mayr-law.com Email www.mayr-law.com Website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Changes to the Advertising Rules and What Criminal Defense Lawyers Need to Know By Brent Mayr “Dallas DWI Defense, P.L.L.C.” No problem. Want to give a gift card to your accountant for referring you a client and not worry about the State Bar coming after you? No sweat. Thinking about posting a video to your social media page reminding viewers they can “politely” invoke their right to remain silent but wondering if you have to submit it to the State Bar for approval? Worry no longer. These are just a few of the changes that were made to the Texas Disciplinary Rules of Professional Conduct that, although made over a year ago, many criminal defense lawyers are still unaware of. Even more concerning is that some criminal defense lawyers, especially those new to the practice of law, are entirely unaware of the ethical limitations on what they can do and say to promote themselves and let others know about the services they offer. Now is the time to sit down, earn yourself a quarter hour of self-study ethics credit (one of your three required ethics hours can be self-study), and read up on the new and entirely revised rules on Lawyer Advertising and Solicitation of Business found in Part VII of the Rules. The new and improved rules are meant to simplify, modernize, and clarify the rules, moving us from the old days of Yellow Book advertising to the present and future use of websites, social media, and other new technology used to communicate with one another. More importantly, they set out important rules that all criminal defense lawyers need to be aware of in how they promote themselves and bring clients into their offices — virtual or otherwise. From the outset, one of the biggest changes to recognize comes from the decision to make a distinction between ordinary communications, “advertisements,” and “solicitation communications.” The latter two are, by definition, “substantially motivated by pecuniary gain” and thus subject to multiple rules and requirements. In the past, there was concern and confusion about something as simple as a new office announcement being subject to those requirements. There were also concerns about lawyers who promoted various forms of non-profit legal services, such as legal aid for the poor. By making the new distinction, lawyers who, for instance, post a comment to social media or promote services not seeking “pecuniary gain,” no longer must worry about complying with disclosure and filing requirements that are applicable to advertisements and solicitation communications. What remains the same — and is still the most important of the rules — is that any communication about a lawyer’s services cannot be false or misleading or contain any statement that is false or misleading. This rule, which is rooted in Supreme Court precedent protecting First Amendment rights, is what ultimately gave way to another big change involving law firm names. While in the past, lawyers could only use their name or the names of lawyers who practiced in a firm together as part of their advertised name, with the recent amendments, Texas became the last state in the country to prohibit the use of trade names. Hence, if a lawyer in Dallas whose practice focus is
on DWI cases wanted to rename their firm, “Dallas DWI Defense, P.L.L.C.,” such a name is now permissible. Like with everything else, the name cannot be false or misleading. As for advertisements themselves, they get their own, new rule: Rule 7.02. While most of the requirements of the rule come from the previous rule dealing with advertisements (old Rule 7.04), it is still worth taking a look at the new rule. What most criminal defense lawyers will immediately recognize is that the rule appears to be geared primarily toward the area of the law where advertising plays a prominent role — personal injury law. The rule nevertheless applies to all areas of the law and any criminal defense lawyer producing an advertisement or solicitation communication needs to make sure it complies with this new rule. One part of the rule that criminal defense lawyers need to pay particular attention to are the limitations of promoting oneself as a criminal defense lawyer in advertisements or solicitation communication. Like before, the new rule allows lawyers to communicate that they practice in a particular area, however, it continues to mandate that a lawyer may “not include a statement that the lawyer has been certified or designated by an organization as possessing special competence or a statement that the lawyer is a member of an organization the name of which implies that its members possess special competence.” The only exceptions for this under the rule are for lawyers that are board certified by the Texas Board of Legal Specialization or members of an organization that has been accredited by the Texas Board of Legal Specialization. Presently, the only organization that meets that criteria relevant to criminal defense lawyers is the National College of DUI Defense, Inc. So what about the host of other lists and organizations that constantly solicit lawyers to be added to their ranks like Super Lawyers, Best Lawyers in America, and countless others? While Texas has not taken on this issue, other states that have considered this issue have issued various, partly inconsistent opinions.1 The American Bar Association attempted to weigh in on the topic but decided that doing so was not necessary and could raise other practical and ethical issues.2 While there is no clear answer on the topic, criminal defense lawyers should be mindful of a few things. First, the most important of the rules still apply: the statement or inclusion on a list or as part of an organization or receipt of an award should not be false and misleading. For instance, one can state they were selected to “Super Lawyers” but cannot promote themselves as a “Super Lawyer.” Second, one should consider the overall validity of the ranking or rating entity. For instance, if the organization appears to make some inquiry into an lawyer’s qualifications or fitness and includes a plain language description of the standard or methodology for the ranking or rating, that might pass muster as opposed to another organization that simply solicits a fee to be included on their “list.” In short, criminal defense lawyers should exercise caution about referencing these entities and the award they offer. After the rule amendments went into effect, the Federal Trade Commission weighed in to warn consumers about lawyers’ inclusion on lists
See Roy Simon, “ABA Studies ‘Super,’ ‘Best,’ and Other Lawyer Rankings (Part II),” NEW YORK PROFESSIONAL RESPONSIBILITY REPORT, October 2011 (available at http://www.newyorklegalethics.com/aba-studies-super-bestand-other-lawyer-rankings-part-ii/) (discussing survey of ethics opinions from around the country). 1
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See American Bar Assoc. Commission on Ethics 20/20, Informational Report to the House of Delegates at 14–15 (available at https://www.americanbar.org/content/dam/aba/administrative/ethics_2020/rankings_2011_hod_annual_ meeting_informational_report.pdf).
or as having received certain awards or recognitions that promote themselves as among the best in their field.3 Moving to solicitation and other prohibited communications, the new rule, Rule 7.03, still prohibits in-person solicitation of new clients but also now prohibits “telephone, social media, or electronic communication initiated by a lawyer that involves communication in a live or electronically interactive manner.” The rule, however, allows communications with “(1) another lawyer; (2) a person who has a family, close personal, or prior business or professional relationship with the lawyer; or (3) a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters” to solicit business. And, while the rule continues to prohibit paying or giving anything of value to another person for soliciting or referring prospective clients, an exception was added for “nominal gifts given as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.” The final major rule change involves the filing requirements for advertisements and solicitation communications. While most advertisements and solicitation communications still must be submitted to the State Bar for approval, the new rule creates a number of exemptions. The most noteworthy change for criminal defense lawyers applies to websites. Under the new rule, “information and links posted on a law firm website, except the contents of the website homepage,” are exempt from the filing requirements of Rule 7.04, as well as “an announcement card stating new or changed associations, new offices, or similar changes relating to a lawyer or law firm, or a business card.” As for posting on social media and other sources, also exempt from filing is a communication “which does not expressly offer legal services, and that: (1) is primarily informational, educational, political, or artistic in nature, or made for entertainment purposes; or (2) consists primarily of the type of information commonly found on the professional resumes of lawyers.” Whether your practice is as simple as putting your name on an office door and having a simple website, or as complex as spending thousands of dollars of month to drive in web traffic and phone calls, all criminal defense lawyers should familiarize themselves with these rules and make sure that they and anyone producing any sort of communication promoting their legal services are familiar with them. Brent Mayr is the managing shareholder of Mayr Law, P.C. based in Houston. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization, a former briefing attorney to Judge Barbara Hervey on the Texas Court of Criminal Appeals, and a former Assistant District Attorney for the Harris County District Attorney’s Office. He is presently co-chair of the TCDLA Ethics Committee and a member of the Board of Directors of the Harris County Criminal Lawyers Association. And, yes, he has been named to the Texas Super Lawyers list in Criminal Defense every year since 2014. Emily Wu, “Look beyond the award when you hire a lawyer,” Federal Trade Commission, Consumer Alert, Dec. 16, 2021 (available at https://consumer.ftc.gov/consumer-alerts/2021/12/look-beyond-award-when-you-hirelawyer). 3
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
404B AND ME: Extraneous Offenses and How They Can Apply to Your Case
Speaker:
Letitia Quinones-Hollins Quinones & Associates 2202 Ruth St. 713.481.7420 Phone 713.714.8670 Fax letitia@quinonesandassociates.com Email www.quinonesandassociates.com Website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
404B AND ME Extraneous Offenses and How They Can Apply to Your Case I.
Introduction Generally, character evidence is a type of evidence that relates to a character trait that is
at issue during a criminal trial. Character, as the term is used in our jurisprudence, is defined as the valuation attached to an individual by the community, not the real qualities of the individual as perceived by the witness. It is not what the individual in question really is, but what he is held to be by the society in which he moves. 1 In Texas, character evidence is admissible for or against a criminal defendant, a witness, or complainant. Rule 404 of the Texas Rules of Evidence governs when character evidence is admissible which will be discussed in depth below. II.
Texas Rule of Evidence 404(b) Texas Rule of Evidence 404(b) is a legal rule that governs the admissibility of evidence
in criminal trials. Specifically, it prohibits the use of evidence of a person's other crimes, wrongs, or acts to prove that the person has a bad character or a propensity to commit crimes. However, the rule allows for certain exceptions in which such evidence may be admissible if it is relevant to a material issue in the case, and the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice to the accused. These exceptions include, proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The rule is intended to protect defendants from unfair character attacks and to ensure that they are tried based on the facts of the specific case at hand rather than their past actions or reputation. 2
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Rogers v. State, 70 S.W.2d 188, 189 (Tex. Crim. App. 1934) Tex. R. Evid. 404
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In the context of Rule 404(b), extraneous offenses refer to any prior or unrelated criminal conduct, acts, or wrongdoings committed by a defendant that are not directly related to the crime for which they are currently being charged. The use of extraneous offenses as evidence can be highly prejudicial to the defendant and may unfairly influence the jury's decision in the case. However, in certain circumstances, extraneous offenses may be relevant to a material issue in the case and may be admissible if they pass the balancing test and the requirements of one of the exceptions to the rule. While evidence of other wrongdoing can establish elements of the proponent’s case, it is also proof of general criminal character. Use of character evidence to prove guilt is generally forbidden under the Texas Rules of Criminal Evidence unless that evidence demonstrates another purpose independent of a predisposition to criminal activity. III.
Motive The motive exception recognizes that understanding the motive behind a defendant's
actions is often crucial to comprehending their overall culpability. This is demonstrated in the Montgomery case where the defendant was charged with aggravated assault with a deadly weapon. The prosecution sought to introduce evidence of the defendant's prior bad acts, including his involvement in a bar fight, to show his motive for committing the assault. The defendant objected to the evidence, arguing that it was not admissible under Rule 404(b) because it was being used to show his character and propensity to commit the crime. However, the court held that the evidence was admissible under the motive exception of Rule 404(b) because it tended to show that the defendant had a motive for the assault due to an ongoing feud with the victim. The court noted that evidence of motive is admissible even if it tends to show the defendant's character or propensity to commit the crime, as long as its probative value outweighs
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its potential for unfair prejudice. 3 In this case, the court found that the evidence was relevant to the issue of motive and was not unfairly prejudicial, and therefore allowed it to be introduced at trial. The Montgomery case provides an example of how the motive exception under Rule 404(b) may be applied in the context of an aggravated assault trial involving evidence of prior bad acts related to a bar fight. IV.
Opportunity The opportunity exception under Rule 404(b) allows the admission of evidence of a
defendant's past bad acts to show that the defendant had an opportunity to commit the charged offense. In the Powell case, the prosecution presented evidence from the young female complainant that appellant sexually molested her on numerous occasions in appellant's living room while appellant’s daughters and others slept there. Before the prosecution presented its case, the appellant in his opening statement had claimed, among other things, that he could not have molested the complainant because of the presence of others in the living room. The court of appeals agreed. While evidence of other crimes, wrongs or acts could have a tendency to show character conformity, it was also admissible for rebuttal of a defensive theory of lack of opportunity to commit the crime. 4 When the defense raises a defensive theory of “lack of opportunity” then other bad acts may become admissible to disprove the lack of opportunity pursuant to Rule 404(b). This exception enables a more comprehensive evaluation of the defendant's involvement and the circumstances surrounding the offense at hand.
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Montgomery v. State, 810 S.W.2d 372 (Tex. App. 1991) Powell v. State, 63 S.W.3d 435, 436 (Tex. Crim. App. 2001)
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V.
Intent The court must consider the probative value of the evidence in relation to its potential for
prejudice and must balance the two factors before admitting the evidence to be. This rule exception is demonstrated in the Trevino case. Here, A jury found the appellant guilty of one count of and one count of aggravated assault and assessed his punishment at life imprisonment for the murder and ninety-nine years' imprisonment for the aggravated assault. In four issues, Appellant contends that the trial court erred in denying his motion to sever, in denying his motion to quash the indictment, and in admitting evidence of gang affiliation. The court affirmed the trial court’s ruling that the appellant, a member of the "Texas Syndicate," intentionally opened fire on the complainant’s vehicle because he was a member of a rival sect of the same gang. Thus, gang affiliation "was most relevant as to appellant's motive and intent on the night of the offense". 5 By allowing the introduction of such evidence, the intent exception allows the trier of fact to better understand the defendant's mental state and the circumstances surrounding the offense, helping to ensure a just and informed verdict. VI.
Preparation and Plan The preparation exception of Texas Rule of Evidence 404(b) allows for the introduction
of evidence of other crimes, wrongs, or acts committed by the defendant in order to prove the preparation or plan for the charged offense. This exception recognizes that certain prior acts or conduct may be relevant to demonstrate the defendant's intent, motive, or modus operandi. To qualify under this exception, the proponent of the evidence must establish a sufficient connection between the prior acts and the charged offense, demonstrating that the defendant's actions were not random or spontaneous but rather part of a deliberate plan or preparation. The preparation
5
Trevino v. State, 228 S.W.3d 729, 734-35 (Tex. App. 2006)
4
exception strikes a balance between the general prohibition on character evidence and the need to present relevant information to the trier of fact, allowing for a more comprehensive understanding of the defendant's actions and mindset. For example, if the defendant steals a car on Monday, buys a machine gun on Tuesday, pastes together a robbery note on Wednesday, parks illegally in front of the Wells Fargo building on Thursday while casing out the bank, and then robs the bank on Friday using the machine gun and driving off in the stolen car, all of the extraneous acts are relevant to prove each step of the defendant's ultimate plan to rob the bank. 6 VII.
Knowledge
The knowledge exception under Rule 404(b) allows evidence of a defendant's prior bad acts to be admitted if it shows that the defendant had knowledge of a particular fact that is an element of the charged offense. In the Pina case, a jury found the appellant guilty of firearm smuggling, and sentence him to seven years in the Texas Department of Criminal Justice along with a $2,500 fine. 7 On appeal, appellant asserts that the trial court abused its discretion by admitting gang related evidence during the guilt-innocence phase of trial. The court held that evidence of appellant's gang membership in a gang known to law enforcement for trafficking stolen guns for profit helped demonstrate the appellant's knowledge that guns were stolen, establish a possible motive for trading the stolen guns. To be admissible under this exception, the proponent of the evidence must establish a sufficient connection between the prior acts and the charged offense, demonstrating that the defendant's knowledge or absence of mistake is at issue in the case. By allowing the introduction of such evidence, the knowledge exception enables a more complete understanding of the defendant's state of mind and the circumstances surrounding the offense, assisting the trier of fact in reaching a just and informed decision. 6 7
Daggett v. State, 187 S.W.3d 444, 451 (Tex. Crim. App. 2005) Pina v. State, No. 03-17-00129-CR, 2018 Tex. App. LEXIS 2288 (Tex. App. Mar. 30, 2018)
5
VIII. Identity (Modus Operandi) The evidence of a defendant's gang affiliation may also be relevant and probative if the crime charged is committed in furtherance of the gang's activities, or if the gang has a particular modus operandi or pattern of criminal activity that is similar to the crime charged. It is important to note, however, that evidence of gang affiliation must be carefully evaluated to ensure that it meets the requirements of the Rule and does not unfairly prejudice the defendant. In criminal trials, the prosecution often seeks to introduce evidence of a defendant's past crimes or acts in order to show that they had a motive, intent, or common scheme in committing the crime for which they are currently charged. However, as stated above, Rule 404(b) generally prohibits the use of such extraneous offenses as evidence to prove a defendant's character or propensity to commit crimes. One important exception to this rule is the concept of modus operandi. Modus operandi refers to a defendant's distinctive method or pattern of committing crimes. In other words, it is a unique or signature way that a defendant carries out their criminal activity that sets them apart from other criminals. The concept of modus operandi can be relevant to a criminal trial because it may help establish a connection between a defendant and the crime they are accused of committing. Moreover, it may help show that the defendant had the knowledge, intent, or plan to commit the crime. Under Rule 404(b), evidence of a defendant's modus operandi may be admissible if it meets the requirements of the rule. Specifically, the evidence must be relevant and must have a probative value that is not substantially outweighed by the danger of unfair prejudice to the accused. This is demonstrated in the Beasley case. Here, the appellant, had a blue bandana hanging out of his back pocket, met the deceased and the victim at a bowling alley, lured them outside and shot and robbed them. When police arrived, the appellant’s description of clothing
6
matched the colors that are traditionally known to represent the Crip gang affiliation. During the punishment phase of the trial, the State presented two witnesses who testified about the appellants gang membership. The court in Beasley held that evidence of gang membership was admissible at the punishment stage. 8 This evidence was logically relevant to show the defendant’s character. Subsequently, to make such evidence admissible, the State must prove: 1) the defendant is a member; and 2) the group commits bad or illegal acts. These are both met as the defendant was a member of the Crips and that the group does inf act commit bad or illegal acts. The State need not prove that the defendant is connected to their specific illegal acts. His association with the group is sufficient. IX.
Absence of Mistake or Accident The absence of mistake exception under Rule 404(b) allows evidence of a defendant's
prior bad acts to be admitted if it demonstrates that the defendant did not make a mistake in committing the charged offense. In the Logan case, the appellant was convicted of murder for the death of her daughter's husband in a fire that destroyed the daughter's home. A witness provided testimony regarding the appellant's role in helping burn a separate relative's mobile home. The trial court conducted a hearing outside the presence of the jury and admitted the testimony for the purpose of demonstrating that the fire was not the result of mistake or accident. 9 The court held that the evidence was relevant and that the probative value of the evidence was not outweighed by any prejudice. This case is important as it indicates that when the defense cross examination or other evidence raises the issue that whatever happened may be an accident or a mistake the prosecutor may offer evidence of other wrongs to rebut.
8
9
Beasley v. State, 902 S.W.2d 452, 454 (Tex. Crim App. 1995) Logan v. State, 840 S.W.2d 490, 497 (Tex. App. 1992)
7
X.
Conclusion In summary, the admissibility of extraneous offenses and gang affiliation evidence
under Rule 404(b) requires the court to conduct a balancing test between the probative value of the evidence and its prejudicial effect. While extraneous offenses and gang evidence may be relevant in certain cases, they can also be highly prejudicial and may lead to an unfair trial. Therefore, the court must carefully consider the admissibility of such evidence and issue appropriate limiting instructions to the jury to ensure a fair trial for the defendant.
8
Trevino v. State Court of Appeals of Texas, Thirteenth District, Corpus Christi June 8, 2006, Opinion Delivered ; June 8, 2006, Opinion Filed NUMBER 13-02-353-CR Reporter 228 S.W.3d 729 *; 2006 Tex. App. LEXIS 4938 **
MIGUEL TREVINO A/K/A MIKE TREVINO, Appellant, v. THE STATE OF TEXAS, Appellee. Notice: [**1] PUBLISH. SEE TEX. R. APP. P. 47.2(b). Subsequent History: Petition for discretionary review refused by In re Trevino, 2006 Tex. Crim. App. LEXIS 2034 (Tex. Crim. App., Oct. 18, 2006) Prior History: On appeal from the 357th District Court of Cameron County, Texas.
Trevino v. State, 2005 Tex. App. LEXIS 4449 (Tex. App. Corpus Christi, June 9, 2005)
Case Summary Procedural Posture Defendant was convicted in the 357th District Court, Cameron County (Texas) of one count of murder and one count of aggravated assault. Defendant appealed. Overview Defendant argued, inter alia, that the evidence was insufficient to sustain his convictions. The court of appeals disagreed. The evidence shows that defendant approached the victim's vehicle while it was stopped at an intersection and began shooting at the driver's side of the vehicle with a semi-automatic weapon. Four shots shattered the driver's side window and one shot pierced the driver's side door. The victim sustained bullet wounds to his face and arms, which required surgery. The passenger sustained four bullet wounds resulting in his death. The jury could have reasonably inferred that by opening fire with a semi-automatic weapon on an occupied vehicle, defendant specifically intended to kill either or both of the occupants of the vehicle, or under the theory of transferred intent, the jury could reasonably have inferred that defendant intended to shoot and kill the driver, but instead killed the passenger. Therefore, the evidence was sufficient to sustain defendant's convictions. Outcome The judgment was affirmed.
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Rogers v. State Court of Criminal Appeals of Texas March 28, 1934, Delivered No. 16579 Reporter 126 Tex. Crim. 39 *; 70 S.W.2d 188 **; 1934 Tex. Crim. App. LEXIS 519 ***
Harry Rogers v. The State. Subsequent History: [***1] Reported in 70 S.W.2d 188. Prior History: Appeal from the District Court of Milam County. Tried below before the Hon. Graham Gillis, Judge. Appeal from conviction for murder; penalty, confinement in the penitentiary for two years. Reversed and remanded. The opinion states the case.
Case Summary Procedural Posture Defendant appealed a judgment from the District Court of Milam County (Texas), which convicted him of murder. Overview It was charged in an indictment, in substance, that defendant, with malice aforethought, killed another man by shooting him with a pistol. At trial, defendant testified that the deceased attacked him, and that he fired the fatal shot in self-defense. Other witnesses gave the same version of the transaction. Witnesses for the State, however, testified that defendant shot the deceased without any provocation on the part of the deceased. Defendant was convicted, and he appealed. The court reversed the conviction. The court held that the trial court erred in allowing witnesses to testify that the deceased was a man of kind and inoffensive disposition because such testimony was based upon the witnesses' own personal knowledge of the deceased. Under the state of the record, the court was unwilling to hold that such testimony did not cause the jury to reject defendant's version of the transaction. Outcome The court reversed the judgment and remanded the cause to the trial court.
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Powell v. State Court of Criminal Appeals of Texas November 28, 2001, Delivered NO. 1244-00 Reporter 63 S.W.3d 435 *; 2001 Tex. Crim. App. LEXIS 117 **
MILTON POWELL, Appellant v. THE STATE OF TEXAS Subsequent History: On remand at Powell v. State, 2003 Tex. App. LEXIS 10851 (Tex. App. Tyler, Dec. 31, 2003) Prior History: [**1] ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE TWELFTH COURT OF APPEALS, SABINE COUNTY. Powell v. State, 2000 Tex. App. LEXIS 3651 (Tex. App. Tyler May 31, 2000) Powell v. State, 2000 Tex. App. LEXIS 3651 (Tex. App. Tyler, May 31, 2000)
Case Summary Procedural Posture Defendant was convicted of indecency with a child. The Twelfth Court of Appeals, Sabine County (Texas), reversed defendant's conviction after deciding that the trial court abused its discretion to admit extraneous offense evidence. The State appealed. Overview The prosecution presented evidence that defendant sexually molested the victim repeatedly in defendant's living room while defendant's daughters and others slept there. Before the prosecution presented its case-in-chief, defendant claimed he could not have molested her due to the presence of others in the living room. This theory was also presented during defendant's cross-examination of the victim. The prosecution contravened this during its case-in-chief with testimony of four witnesses who testified defendant molested them under circumstances almost identical. Defendant claimed on direct appeal that the trial court abused its discretion by allowing the testimony of all six prosecution rebuttal witnesses because this evidence was admitted solely for the character conformity purpose of showing that he was a child molester. The court of appeals agreed. While evidence of other crimes, wrongs or acts could have a tendency to show character conformity, it was also admissible for rebuttal of a defensive theory. Outcome The judgment of the court of appeals was reversed.
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Pina v. State Court of Appeals of Texas, Third District, Austin March 30, 2018, Filed NO. 03-17-00129-CR Reporter 2018 Tex. App. LEXIS 2288 *; 2018 WL 1547272
Felix Antonio Pina, Appellant v. The State of Texas, Appellee Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS. Prior History: [*1] FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT. NO. B-16-0820-SB, THE HONORABLE BRAD GOODWIN, JUDGE PRESIDING.
Pina v. State, 2017 Tex. App. LEXIS 9261 (Tex. App. Austin, Sept. 27, 2017)
Case Summary Overview HOLDINGS: [1]-In a firearm smuggling conviction, gang related evidence was admissible under Tex. R. Evid. 404(b) as it was not offered to prove the defendant's bad character and show conformity with it, but to show his knowledge that the handguns were stolen, to establish his motive and intent to trade the firearms, and to rebut the defensive theory of accident or mistake, all of which in turn tended to prove the charged allegation; [2]-The gang related evidence was properly admitted under Tex. R. Evid. 403 because the highly probative value of the evidence derived from relevant non-character conformity purposes and it would not have been outside the zone of reasonable disagreement for the trial court to have further found that whatever prejudicial effect the gang related evidence might have would not substantially outweigh the probative force of that evidence. Outcome Judgment affirmed as modified.
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Montgomery v. State Court of Criminal Appeals of Texas May 30, 1990, Delivered Nos. 1090-88, 1091-88 Reporter 810 S.W.2d 372 *; 1990 Tex. Crim. App. LEXIS 90 **
PATRICK LOGAN MONTGOMERY, Appellant v. THE STATE OF TEXAS, Appellee Subsequent History: [**1] Rehearing Granted June 19, 1991, Reported at 1991 Tex. Crim. App. LEXIS 146. Prior History: Petition for Discretionary Review from the Fifth Court of Appeals; (Dallas County).
Case Summary Procedural Posture Appellant challenged a judgment of the Fifth Court of Appeals, Dallas County (Texas), which held that the trial court did not abuse its discretion in allowing the jury to hear testimony that appellant claimed constituted improper proof of an extraneous offense. The trial court convicted appellant of two counts of indecency with a child and assessed a sentence of 10 years' confinement for each offense. Overview During his trial for indecency with a child, appellant objected to testimony that he had occasionally paraded around in front of his minor daughters, the complainants, in the nude with an erection. The court found that the testimony, when considered in the context of other evidence at trial, was relevant because it provided the small nudge toward proving appellant's sexual motive if he touched the complainants. The court found that there were a number of factors that the trial court could have considered in determining to permit the testimony. The court found that the trial court could have considered the inherent circumstantial nature of the evidence tending to prove that appellant committed the offenses with the intent to sexually arouse himself, the state's burden of proving intent beyond a reasonable doubt when there was no other available evidence to prove sexual gratification, and the age of the complainants. The court found that absent the testimony, it was possible that any touching was done innocently making the need for the evidence greater. The court affirmed and concluded that it could not say that the trial court abused its discretion in allowing the testimony. Outcome The court affirmed the judgment of the trial court and the court of appeals. The court found that the record did not demonstrate that the trial court abused its discretion when it allowed a jury to hear that appellant appeared nude with an erection in front of his children.
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Logan v. State Court of Appeals of Texas, Twelfth District, Tyler January 16, 1992, Delivered ; January 16, 1992, Filed NO. 12-89-00167-CR Reporter 840 S.W.2d 490 *; 1992 Tex. App. LEXIS 131 **
FAYE LOGAN, APPELLANT V. THE STATE OF TEXAS, APPELLEE Subsequent History: [**1] Appellant's Motion for Rehearing Overruled June 22, 1992, Reported at 1992 Tex. App. LEXIS 1603. Prior History: APPEAL FROM THE 273RD JUDICIAL DISTRICT COURT SABINE COUNTY, TEXAS
Case Summary Procedural Posture Appellant sought review of a decision of the 273rd Judicial District Court, Sabine County (Texas), which convicted her of murder in violation of Tex. Penal Code Ann. § 19.01(a) (1974). Overview Appellant was convicted of murder under Tex. Penal Code. Ann. § 19.01(a) (1974), for the death of her daughter's husband in a fire that destroyed the daughter's home. The court held that disagreement between expert witnesses as to the fire's origin was not dispositive because the jury determined the appropriate weight to accord expert testimony. The court held that uncontradicted expert testimony refuting defense theories as to the fire's cause and circumstantial evidence that appellant plotted to kill her daughter's husband for insurance money was sufficient to support the conviction. Evidence of appellant's conversations in jail was admissible because, even if her arrest warrant was deficient, her statements were an act of free will and the taint of the illegal arrest was removed. The warrantless search of the daughter's home did not violate U.S. Const. amend. IV, because the destruction by the fire was so complete that appellant no longer had a reasonable privacy interest. The trial court did not err in admitting evidence that appellant had previously burned a trailer for insurance because the evidence was relevant and its probative value was not outweighed by any prejudice. Outcome The court affirmed appellant's conviction for murder by the trial court because the expert testimony and abundant circumstantial evidence were sufficient for the jury to find guilt beyond a reasonable doubt. Statements made by appellant were admissible because they were sufficiently attenuated from her illegal arrest. Evidence that appellant had previously burned a trailer for insurance was properly admitted.
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Daggett v. State Court of Criminal Appeals of Texas December 14, 2005, Delivered NO. PD-0503-03 Reporter 187 S.W.3d 444 *; 2005 Tex. Crim. App. LEXIS 2127 **
JOHN R. DAGGETT, JR., Appellant v. THE STATE OF TEXAS Notice: [**1] PUBLISH Subsequent History: As Corrected January 24, 2006. On remand at, Remanded by Daggett v. State, 2006 Tex. App. LEXIS 6993 (Tex. App. San Antonio, Aug. 9, 2006) Prior History: ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH COURT OF APPEALS. BEXAR COUNTY.
Daggett v. State, 103 S.W.3d 444, 2002 Tex. App. LEXIS 8681 (Tex. App. San Antonio, 2002)
Case Summary Procedural Posture Defendant was convicted of three counts of sexual assault of a child under seventeen. The Fourth Court of Appeals, Bexar County (Texas) affirmed. Defendant appealed. Overview Defendant argued that the trial court's limiting instruction, combined with the State's closing argument, improperly permitted the jury to consider testimony regarding another allegation of sexual abuse for its substantive value. The court of criminal appeals agreed. Because the witness's testimony was admissible only to rebut defendant's blanket statement of good conduct with minors, the trial court should have given an instruction to use the testimony only in assessing defendant's credibility, not as proof that he committed the charged offense or as proof of a "plan" to have a sexual relationship with the victim. The court of appeals correctly determined that any harm caused in admitting the testimony was cured when defendant "opened the door" to its admission during his testimony. However, the trial court also committed error by allowing the State to use the extraneous offense as substantive evidence of the charged offense. Because the court of appeals did not assess the potential harmfulness of that testimony being misused for substantive purposes when it was admissible only to impeach defendant's credibility, the court of appeals was directed to conduct a harm analysis. Outcome The judgment of the court of appeals was vacated and the case was remanded for further proceedings.
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Beasley v. State Court of Criminal Appeals of Texas June 28, 1995, DELIVERED NO. 1365-93 Reporter 902 S.W.2d 452 *; 1995 Tex. Crim. App. LEXIS 74 **
ROOSEVELT BEASLEY v. THE STATE OF TEXAS, Appellee Prior History: [**1] Petition For Discretionary Review from the Second Court of Appeals. 372nd. Judicial District Court of Tarrant County, Tx.
Case Summary Procedural Posture Appellant sought a discretionary review from the Second Court of Appeals (Texas), which affirmed his conviction for murder, holding that the evidence admitted was not about an extraneous offense and was admissible at the punishment phase of the trial. The court was asked to decide if evidence of bad conduct generally engaged in by gang members was admissible without showing a connection between such conduct and appellant. Overview Appellant sought a discretionary review on his murder conviction and claimed reversible error. The appellate court held that the evidence admitted was not extraneous and was admissible at the punishment phase. The court agreed to decide if evidence of bad conduct by gang members was admissible without showing a connection between it and appellant. The court held that a rational jury could have concluded that appellant was a gang member involved in misconduct and had a bad reputation in the community. It was essential for the jury to know the types of activities the gang engaged in so that they could fairly determine if appellant's gang membership was a positive or negative aspect of his character, in order to determine his character as a whole. It was unnecessary to link appellant to the bad acts or misconduct of the gang, as long as the jury was provided with evidence of appellant's gang membership as well as evidence of the character and reputation of the gang, not required to determine if appellant committed the bad acts or misconduct, and only asked to consider the reputation or character of appellant. The judgment of the appellate court was affirmed. Outcome The court affirmed the judgment of the appellate court. It was unnecessary to link appellant to the bad acts or misconduct of the gang, as long as the jury was provided with evidence of appellant's gang membership as well as evidence of the character and reputation of the gang, not required to determine if appellant committed the bad acts or misconduct, and only asked to consider the reputation or character of appellant.
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Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Fourth Amendment
Speaker:
David Guinn
Hurley & Guinn 1805 13th St Lubbock, TX 79401 806.771.0700 phone 806.763.8199 fax david@hurleyguinn.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
I.
FOURTH AMENDMENT A. Introduction Any lecture outline like this will necessarily be incomplete. If you want a handy version
of most all the law you can really use, buy Jim Skelton’s book on Search and Seizure. It’s over 200 pages long and comes with a handy CD you can use. He didn’t pay or ask me to write that, by the way. Instead, a command of the basics and knowledge of a few new applications will help some of your client’s. The extensive nature of searches, combined with interesting ideological splits at the Supreme Court along with overwhelming public response to government data gathering programs like those conducted by the NSA, have resulted in some favorable law coming from the Supreme Court for quite a while. These cases are highlighting that traditional “conservativeliberal” ideological analysis doesn’t always hold true, with the majorities in cases like Arizona v. Gant and Florida v. Jardines formed by part of the liberal bloc along with libertarian-leaning conservatives. The libertarian streaks of Gorsuch, Barrett, and occasionally Kavanaugh, in conjunction with the Court’s more liberal members suggest that this will continue to be a fertile area. Justices Barrett and Jackson are still relatively new, but Justice Barrett’s limited track record on the 7th Circuit and the SCOTUS suggests that she is fairly close to Justice Scalia on Fourth Amendment issues. Justice Jackson’s tenure on the district court bench suggests that she is fairly conventional in her Fourth Amendment approach, but that may be due to being constrained by higher court precedent; her track record on the D.C. Circuit was too short to be particularly revealing, and as the Supreme Court has been particularly slow to issue opinions during the present term – Jackson’s first – there simply isn’t enough data to tell if she will approach issues markedly different than her predecessor, Justice Breyer. It is worth particularly noting that while the CCA has held (so far) that the Texas Constitution’s provisions on warrants are mostly coextensive with the Fourth Amendment (see Johnson v. State, 912 S.W.2d 227 (Tex. Crim. App. 1995), a separate objection on that basis should still be made. 1 Additionally, while Tex. Code Crim. Proc. Art. 38.23 covers some of the The realities of Texas law in the search and seizure arena are much more nuanced than this simple statement, further highlighting the need for a separate objection under Art. I, § 9 of the Texas Constitution. For a lengthy discussion of how Art. I, § 9 is applied, see Holder v. State, 595 S.W.3d 691 (Tex. Crim. App. 2020); in that case, the CCA asserted that the Texas Constitution’s provision does not include an implicit warrant requirement, but rather requires an inquiry of general reasonableness of any particular search after considering the relevant public and
1
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same ground, it is also a separate basis for objection, and though many of the constitutional objections are subsumed into an Art. 38.23 analysis, the scope of the statute is more extensive in scope than the Federal and state constitutional provisions. B. Framework for Analysis In any Fourth Amendment case, there is a series of questions to be applied, including some basic, preliminary hurdles which have to be overcome before moving on to the substantive application of the Fourth Amendment to a given situation. The analytical framework breaks down basically thus: 1. Was the Fourth Amendment implicated, i.e., is there government conduct constituting a search or a seizure? Katz v. U.S. 389 U.S. 347, 350 (1967). If the answer is ‘no’, then analysis ends; no matter the unreasonableness of the action, there can be no Fourth Amendment violation absent governmental action. 2. If there is an arguable application of the Fourth Amendment, does the defendant have standing to raise the issue? Again, if the answer is ‘no’, then analysis ends; if the defendant lacks standing to challenge a given action – say, e.g., by having no property or privacy interest in a place searched – then a court will reject the challenge outright without further analysis. 3. Assuming a defendant hurdles these preliminary questions, then the analysis turns to the substantive question:
was the Fourth Amendment violated, i.e., was the
search/seizure reasonable and justified under the circumstances? This is a highly fact-intensive question; if the search or seizure was conducted with a warrant, it is presumed reasonable, subject to rebuttal – most often on the basis of whether probable cause justifying issuance of the warrant existed. Warrantless searches are said to be “per se unreasonable,” i.e. presumptively constitutionally invalid, unless some well defined exception to the warrant requirement implicated by the facts of a given case justifies the governmental intrusion.
private interests at stake. In practice, this analysis is similar to how Fourth Amendment law has evolved, but it allows a broader analysis to be conducted, with the CCA looking to see, in view of the similarities between the Fourth Amendment and Art. I, § 9 and the interests to be protected by both, “whether the Supreme Court’s reasoning makes more sense than the alternatives.” In fact, Holder notes that this analysis once led the CCA to give greater protection under the Texas Constitution in pen register cases, in Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993). 2 of 46
4. Finally, if there is a cognizable Fourth Amendment violation, i.e., the search or seizure is unreasonable and therefore unconstitutional, does the exclusionary rule apply?
Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643
(1961). 1. Government action The first threshold question is whether there was some form of governmental action, as the Fourth Amendment – like other Constitutional provisions protecting rights – only restricts governmental action, not actions of private parties. See United States v. Jacobsen, 466 U.S. 109, 113 (1984); State v. Rodriguez, 521 S.W.3d 1, 10 (Tex. Crim. App. 2017); Dawson v. State, 106 S.W.3d 388, 391 (Tex. App. – Houston [1st Dist.] 2003). Thus, even wrongful searches and seizures by private parties can result in admissible evidence. Walter v. United States, 447 U.S. 649 (1980). Actions by police departments and state agencies facially satisfy the governmental action requirement; however, the courts have recognized that the government may not actively enlist or encourage private parties to do for government what it may not do itself, i.e., a search/seizure by a private party may nevertheless implicate the Fourth Amendment if the private party was acting as an agent for the government. Dawson, 106 S.W.3d at 392. Whether a private party was acting under governmental direction depends on the degree to which the government participates in directs, or has knowledge of the private party’s actions. Burwell v. State, 576 S.W.3d 826, 831 (Tex. App. – Houston [1st Dist.] 2019). The question as applied in Texas is two-part: first, whether the government knew of and acquiesced to the intrusion, and second, whether the party performing the search intended to assist law enforcement efforts or instead for private purposes. Burwell at 831. It should be noted specifically that when incriminating evidence is discovered by a private party search, while the government may freely rely on such evidence when it is brought to governmental attention without need for a warrant, if the government then undertakes additional searches or seizures that go beyond the scope of what the private party did, that additional action will trigger Fourth Amendment protections. Burwell at 833; United States v. Reddick, 900 F.3d 636 (5th Cir. 2018), cert. denied, 139 S.Ct. 1617 (2019). Reddick itself is a good example of the difficulty of some of these questions in light of modern technology. Private cloud storage companies routinely run automated comparisons of customer-stored data against
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known contraband data files in an effort to combat child pornography; if the algorithms flag given files as contraband, those companies then notify a government agency for further investigation. In Reddick, the private party (Microsoft) only reported the algorithm’s results, and no employee actually opened the file and viewed the image; however, the Fifth Circuit held that the initial identification of suspicious data rendered that data nonprivate, and held that law enforcement officials could view the data without needing to obtain a warrant. 2 It is worth noting that Texas statutory law – Tex. Code Crim. Proc. Art. 38.23 – goes further than the Fourth Amendment and the corresponding Article I, § 9 of the Texas Constitution. That provision codifying Texas’ exclusionary rule extends not only to government officers, but to “other person[s]”, and directs that evidence obtained in violation of law be excluded. Amongst Texas cases, Spring v. State, 626 S.W.2d 37, 38 (Tex. Crim. App. 1982) illustrates how a private citizen, used by the police, can violate the Fourth Amendment (the apartment manager used a pass key to inspect Spring’s apartment). See also Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007) (explaining that by its plain terms, the Texas exclusionary rule, Tex. Code Crim. Proc. Art. 38.23, applies not only to law enforcement officers, but to other persons as well; however, in this particular case, a facial illegality such as a traffic violation committed by the private actor trying to effect a citizen’s arrest does not invoke the exclusionary rule, as such conduct is not illegal in light of the defense of justification). 2. Standing In order for the accused to successfully invoke the federal or Texas exclusionary rule, he must first have standing, a right to complain. It is a defendant’s burden to establish standing; in order to show standing, the defendant must demonstrate that he had a reasonable (sometimes termed “legitimate”) expectation of privacy in the thing or the area searched at the time of the search. See Rawlings v. Kentucky, 448 U.S. 98, 100 (1980). This requirement has been applied in Texas by the Court of Criminal Appeals. See, e.g., Chapa v. State, 729 S.W.2d 723, 725 (Tex. Crim. App. 1987). Either ownership rights of some form OR a reasonable expectation of privacy inuring to the complaining person can be sufficient to establish standing. Take a look at United States v. Brown, 6 F.3d 1390 (5th Cir. 1993), which recognized a passenger in a car that was not his nevertheless had standing to challenge the legality of the initial stop of the vehicle in a With respect to this particular issue – the viewing of data files flagged and reported as potential child pornography – there is a circuit split. Contrary to Reddick, the Ninth Circuit has held that law enforcement should obtain a warrant before actually viewing such material if no private actor has actually done so.
2
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motion to suppress because the stop was a restraint upon the passenger’s freedom of movement and therefore constituted a seizure of his person; see also the recent SCOTUS decision in Byrd v. U.S., which unanimously held that the driver of a rental car has standing – a “reasonable expectation of privacy” – even when the driver is not listed on the rental agreement. 584 U.S. ___, 138 S.Ct. 1518 (2018). See also United States v. Buchner, 7 F.3d 1149 (5th Cir. 1993) and United States v. Iraheta, 764 F.3d 455 (5th Cir. 2014), holding that a passenger has standing to challenge the search of his belongings, such as a suitcase located in someone else’s car. Iraheta particularly notes that unless a defendant abandons or disclaims ownership of property prior to a search, standing will lie to challenge the search. 764 F.3d at 461. Likewise, print and brief United States v. Wilson, 36 F.3d 1298, 1301 (5th Cir. 1994). Wilson granted standing and reversed a search and seizure of a checkbook from defendant’s friend’s hotel room (fact intensive, but illustrative of the principles involved and their application). Florida v. Jardines, 569 U.S. 1 (2013) has had a major impact in this area; Scalia’s focus on the ownership interest of the home and its publicly visible curtilage as a “constitutionally protected area,” rather than focusing only on whether a defendant has a reasonable expectation of privacy, raises an alternative pathway through which warrantless searches, especially those around a home, may be challenged. 569 U.S. at 5. The Supreme Court has continued to refine this line of reasoning, including extending it to render a warrantless search of a motor vehicle parked in a driveway illegal, in spite of the automobile exception discussed below. Collins v. Virginia, 138 S.Ct. 1663 (2018). a. Texas The following are some Texas cases where the appellate court recognized standing: Chapa v. State, 729 S.W.2d 723, 725 (Tex. Crim. App. 1987) (holding that defendant, who was a paying passenger in a taxicab, had a reasonable expectation of privacy and thus had standing under the Fourth Amendment to object to a search which revealed heroin under the front seat of the cab). Lewis v. State, 664 S.W.2d 345, 346 (Tex. Crim. App. 1984) (holding that appellant, who was a passenger in the car, did have standing to challenge the search based on her continued detention). State v. Serna, 644 S.W. 3d 712 (Tex. App. – Austin 2021, pet. ref’d) (holding that parolee staying at a friend’s house and who parked his vehicle under a carport had a reasonable
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expectation of privacy; neither parolee status nor the third party ownership of the place he was staying deprived him of that expectation, and the attached carport was within the curtilage of the home). Castro v. State, 202 S.AW.3d 348 (Tex. App. – Ft. Worth 2006, rev’d on other grounds) (affirming that a passenger in a stopped vehicle has been seized and therefore has standing to challenge the legality of the stop). Dominguez v. State, 924 S.W.2d 950, 952 (Tex.App.—El Paso 1996, no pet.) (holding that where a criminal investigator appointed in one county and assigned to a multi-county drug task force lacked the authority to stop defendant in a second county, passenger in stopped vehicle challenging legitimacy of traffic stop is challenging seizure of his person and thus has standing). State v. Crisp, 74 S.W.3d 474, 477 (Tex.App.—Waco 2002, no pet.) (holding that the defendant’s wife had permission to borrow her mother’s car and therefore had standing to challenge an illegal arrest; the husband had the wife’s permission to drive the car and therefore also had standing). Wilson v. State, 692 S.W.2d 661 (Tex. Crim. App. 1984) (defendant’s testimony that he had lawfully borrowed vehicle sufficient to satisfy burden of production on issue of standing). Wiltz v. State, 595 S.W.3d 930 (Tex. App. – Houston [14th Dist.] 2020) (defendant who was initially properly subjected to traffic stop and thereafter seized and handcuffed based on probable cause of marijuana possession abandoned his expectation of privacy in and standing to challenge the search of his cell phone – unprotected by password or other security measures – when he left it behind when he fled custody; note that the court indicated that abandonment must “not flow from police misconduct,” which it did not in this case because defendant’s detention was lawful up to the point at which he decided to flee). It is important to note in all of these situations that there is no general standing for passengers to object to automobile searches; each case has to be examined for the precise search or seizure being objected to, and whether the passenger had standing to object to that particular action based on some infringement of the passenger’s rights, ownership interests, or reasonable expectations of privacy. Minassian v. State, 490 S.W.3d 629 (Tex. Ct. App – Houston [1st Dist.] 2016) provides a good example of this, along with potential dangers from failing to pinpoint each step of the analysis. In that case, a vehicle was initially stopped; the passenger was arrested on suspicion of having committed a felony; a subsequent search of the vehicle incident to that arrest
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revealed two laptops; and finally, police perusal of the laptops resulted in gathering further evidence. The defendant passenger moved to suppress the evidence, principally challenging his arrest, and secondarily challenging the search incident to the arrest and seizure of the laptops; however, the defendant only asserted ownership of the laptops in a footnote in the suppression motion, and offered no evidence on the point. After holding the arrest (and the search incident thereto) to be lawful, the court of appeals dismissed the defendant’s challenge to the search of the contents of the laptop on the basis that the defendant’s ownership (and thus standing) had not been established by competent evidence. A few cases where a defendant was held to not have standing illustrates where to draw the line: Villareal v. State, 935 S.W.2d 134 (Tex. Crim. App. 1996) (holding that an defendant who barged into a friend’s house while in flight from arrest, and who was therefore a nonovernight guest, had no ownership interest in the premises and no objectively reasonable expectation of privacy, and therefore no standing to challenge police entry and seizure of his person). Delagarza v. State, 635 S.W.3d 716 (Tex. App. – Corpus Christi 2021, pet. ref’d) (defendant’s status as parent with right to make decisions concerning his minor daughter did not give him standing to challenge an allegedly illegal search of the daughter’s person). State v. Huse, 491 S.W.3d 833 (Tex. Crim. App. 2016) (HIPAA’s specific exception for production of medical records in response to grand jury subpoena negates any legitimate expectation of privacy in such records when obtained in that fashion as opposed to a warrant, and a defendant therefore lacks standing to challenge introduction of medical records obtained via grand jury subpoena). Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014) (defendant who fled from borrowed vehicle while fleeing arrest abandoned the vehicle and its contents and lost standing to challenge subsequent warrantless search of the vehicle). Loza v. State, 659 S.W.3d 491 (Tex. App. – Eastland 2023) (defendant arrested pursuant to arrest warrant for him when he was found in third party’s apartment challenged admission of contraband found on him in search incident to arrest on basis that officers did not have a search warrant for the premises; court found he had no privacy interest upon which to challenge officers’ execution of arrest warrant, because arrest warrant justified his arrest at home without a
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search warrant for that premises, and his interest in a third party location was necessarily lower than at home. Distinguished Steagald and Hudson because in those cases, the defendants were not the subjects of the arrest warrant.) b. Supreme Court Some basic Supreme Court cases involving issues of standing are: Katz v. U.S. 389 U.S. 347, 361 (1967) (Harlan, J., concurring). (To receive the protection of the Fourth Amendment, the defendant must have a subjective expectation of privacy, and that expectation of privacy must be one that society is “prepared to recognize as reasonable.”) U.S. v. Salvucci, 448 U.S. 83, 84 (1980) (an illegal search only violates the rights of those who have a reasonable expectation of privacy in the place being searched) Minnesota v. Olson, 495 U.S. 91, 93 (1990) (a defendant who is an overnight guest in another’s home has a reasonable expectation of privacy and thus has standing to challenge Fourth Amendment violations). United States v. Jones, 565 US 400, 132 S.Ct. 945 (2012) (attachment of a GPS transponder to a vehicle violates the 4th Amendment because the installation constituted a common law trespass against the owner’s property rights in the car; Scalia’s majority opinion held that Katz’s expectation of privacy formulation is in addition to, not instead of, the 4th Amendment rights deriving from property interests) Florida v. Jardines, 569 U.S. 1 (2013) (continuing from Jones above, a drug dog search of the accessible curtilage of a home was per se unreasonable because of the simple fact of ownership of the property along with the search being conducted in excess of the scope of the implicit invitation for people to approach the front door to knock and speak with the inhabitants). Byrd v. U.S., 584 U.S. ___, 138 S.Ct. 1518 (2018) (making explicit that the Jones and Jardines property rights analysis is in addition to Katz’s reasonable expectation of privacy analysis, ultimately holding that a driver in lawful possession of a rental car has a reasonable expectation of privacy in it even if not listed as an authorized driver on the rental agreement; of additional note, the Court pointed out that 4th Amendment standing and Article III standing are unrelated concepts). 3. Was the Fourth Amendment Implicated? The foregoing issues of governmental action and of standing (i.e., the individual must have either a reasonable expectation of privacy or an ownership interest in the property searched)
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are necessary predicates to a determination that the situation implicates the Fourth Amendment. The factors involved in determining reasonableness of an expectation of privacy are: (1) the nature of the individual interest in the abstract and (2) the intrusiveness of the government investigative activity. It’s basically a value judgment here: given the nature of the individual’s privacy interest, would it be inconsistent with the goals of a free society to permit this form of police activity to go unregulated? If the answers to both of those questions is ‘yes’ – i.e., there is both a governmental action or agent involved, and the defendant has produced evidence of standing by either (or both) theories, the question turns to the substantive issue of whether the Fourth Amendment is implicated. Put another way, the question turns to examine whether there was a search or seizure, and whether that search or seizure was conducted with a warrant or was otherwise reasonable. The following is a running list of recognized Searches and Seizures: •
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Home o Florida v. Jardines, 569 U.S. 1 (2013) (a drug dog sweep of the cartilage of a home is a search for 4th Amendment purposes). o Collins v. Virginia, 584 U.S. ____, 138 S.Ct. 1663 (2018) (extending Jardines; automobile exception does not apply to search of vehicle parked on curtilage of home) (see also State v. Serna, 644 S.W.3d 712 (Tex. App. – Austin 2021, pet. ref’d)). o Tilghman v. State, 624 S.W.3d 801 (Tex. Crim. App. 2021) (expectation of privacy in hotel room ends with either the end of scheduled occupancy or when hotel staff affirmatively move to evict a guest for violation of hotel policies). Personal Papers o United States v. Sahley, 526 F.2d 913 (5th Cir. 1976) (while personal papers can be subject of unreasonable search and seizure, defendant lost privacy interest in financial statements and documents voluntarily supplied to bank so that bank could determine loan eligibility). Person o Maryland v. King, 569 U.S. 435 (2013) (DNA sampling of arrestees for “serious crimes” – and perhaps more – is not a search, but a “legitimate booking technique”). o Torres v. Madrid, U.S. , 141 S.Ct. 989 (2021) (§1983 case, holding that officers seized a suspect when bullets struck her body, despite the fact that she temporarily eluded capture;
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•
•
•
•
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application of force with intent to restrain is a seizure, even if the person is not subdued and escapes custody). “Frisk” o Terry v. Ohio, 392 U.S. 1, 4 (1968) (holding that if an officer reasonably believes the person may be armed and presently dangerous, the officer may conduct a protective frisk, generally limited to a pat down of the outer clothing). o Michigan v. Long, 463 U.S. 1032 (1983) (extending Terry to the automobile context and holding that a protective sweep may be extended to the entire passenger compartment “to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous,” and even if the suspect has been removed from the vehicle, up until the suspect is placed under arrest). Automobile o Chambers v. Maroney, 399 U.S. 42, 43 (1970) (holding that if the police are justified in making a warrantless search at the time they stop the vehicle, they may tow the vehicle to the police station and search it at a later time). o U.S. v. Ross, 456 U.S. 798, 799 (1982) (holding that if the police have probable cause to search a vehicle, they may search the entire vehicle, including the trunk and containers). o California v. Acevedo, 500 U.S. 565 (1991) 3 (holding that if the police only have probable cause to search a container within a vehicle, they may search only the container). Checkpoints and Administrative Searches o Schenekl v. State, 30 S.W.3d 412, 413 (2000) (holding that a statute allowing an enforcement officer to stop and board a boat without probable cause or reasonable suspicion in order to perform a water safety check was a valid search as the heightened expectation of privacy which exists for cars does not exist for boats; random water safety checks are okay in order to facilitate recreational safety). o Holt v. State, 887 S.W.2d 16 (Tex. Crim. App. 1994) (because a governing body in Texas has not authorized a statewide procedure for DWI roadblocks, such roadblocks are unreasonable and unconstitutional unless and until a politically accountable governing body sees fit to enact nondiscriminatory constitutional guidelines regarding such roadblocks). o School Searches Telephone Issues o Katz v. U.S., 389 U.S. 347, 348 (1967) 4 (holding that a person who makes a phone call from an enclosed phone booth may
Ross, 456 U.S. 798, 799 (1982), and Acevedo, 500 U.S. 565 (1991), deal with scope questions. But see U.S. v. White, 401 U.S. 745 (1971). 10 of 46
•
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reasonably expect that the phone call will not be broadcast to the world). o Riley v. California, 573 U.S. 373 (2014) (holding that warrantless search of the contents of a cell phone incident to an arrest violates the Fourth Amendment). o Carpenter v. U.S., 585 U.S. ___, 138 S.Ct. 2206 (2018) (holding that cell phone subscribers have an expectation of privacy in cell site location information (CSLI) held by their cell phone companies, and that police must obtain a warrant to access such records, rather than a mere subpoena). o Holder v. State, 595 S.W.3d 691 (Tex. Crim. App. 2020) (holding that obtaining CSLI without warrant is Tex. Const. Art. I, § 9 violation) & Holder v. State, 639 S.W.3d 704 (Tex. Crim. App. 2022), (finding, after Judge Hervey’s concurrence in Dixon v. State, 595 S.W.3d 216 (Tex. Crim. App. 2020), that the sole remedy for Art. I, § 9 violation is statutory under Art. 38.23, and erroneous admission is therefore judged under the non-constitutional error standard of TRAP 44.2(b)). o Martinez v. State, 660 S.W.3d 179 (Tex. App. – San Antonio 2022, pet ref’d) (holding that State did not require warrant to obtain call logs and subscriber information for defendant’s phone number; third party doctrine removes numbers a person communicates with from scope of reasonable expectation of privacy). Luggage o U.S. v. Garcia, 849 F.2d 917 (5th Cir. 1988) (holding that a border patrol agents’ squeeze and sniff of defendant’s suitcase after removing it from the airport baggage area was not a search). o U.S. v. Lovell, 849 F.2d 910 (5th Cir. 1988) (holding that a border patrol agent’s removal of a defendant’s bag from an airport baggage area conveyor belt, his squeeze of the bag to procure a scent, and his subsequent sniff of that bag was not a search or seizure). o U.S. v. Bond, 167, F.3d 225, 226 (1999) (holding that a border patrol agent’s squeeze and manipulation of defendant’s bag, which was in the compartment above defendant’s seat on a bus, to detect drugs, was not a search). Containers o Horton v. California, 496 U.S. 128 (1990) (seizure of container does not obviate privacy interest in contents, and it may only be opened with valid search warrant or an exception thereto) o Riley v. California, 573 U.S. 373 (2014) (holding that warrantless search of the contents of a cell phone incident to an arrest violates the Fourth Amendment).
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o United States v. Sylvester, 848 F.2d 520 (5th Cir. 1988) (hunter could reasonably maintain expectation of privacy in hunting box left unattended while he was in field; merely being out of sight is not abandonment, and warrantless search of box by USF&W agent was illegal search). o Bond v. United States, 529 U.S. 334 (2000) (officer’s physical manipulation of opaque bag placed on luggage rack above defendant’s seat on bus constituted unlawful search; while defendant could expect others to handle bag, he had no expectation that third parties would manipulate it in exploratory manner). o United States v. Buchner, 7 F.3d 1149 (passenger in car has legitimate expectation of privacy in contents of his suitcase). o State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014) (holding that defendant had reasonable expectation of privacy in contents of cell phone stored temporarily in jail property room following defendant’s arrest, and warrantless search of phone violates the Fourth Amendment). Curtilage if physical intrusion o Florida v. Jardines, 569 U.S. 1 (2013). o U.S. v. Dunn, 480 U.S. 294, 296 (1987). o Collins v. Virginia, 584 U.S. ____ (2018) (note that driveway as part of curtilage is hotly contested; Collins involved portion of driveway with carport in close proximity to house, but extended driveway may not be; for example of contrary holding, see United States v. May-Shaw, 955 F.3d 563 (6th Cir. 2020). Office o O’Connor v. Ortega, 480 U.S. 709, 711 (1987) (holding a warrantless search of a government employee’s desk and files may be conducted based on work-related need or suspicion of work-related misconduct). o Minnesota v. Carter, 525 U.S. 83 (1998) (property used for commercial purposes is covered by Fourth Amendment, but expectation of privacy is less than similar expectation in one’s home). Blood Test o Schmerber v. California, 384 U.S. 757, 758 (1966) (holding that taking a blood sample by use of common medical techniques is a reasonable intrusion). o Missouri v. McNeely, 569 U.S. 141 (2013) (involuntary blood draws constitute searches and do not per se fall within the exigent circumstances exception). o Mitchell v. Wisconsin, 588 U.S. ____ (2019) (exigent circumstances exception allowed a blood draw from an unconscious driver without a warrant; note that this is a
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plurality holding, with Thomas concurring in the judgment only on the facts of this case, making this a fertile area for litigation). o State v. Villarreal, 475 S.W.3d 784 (Tex. Crim. App. – 2014, reh’g denied) (warrantless nonconsensual blood draw not valid under consent, automobile, special needs, or search incident to arrest exceptions, and not reasonable under general Fourth Amendment analysis). Elimination of Waste (urinanalysis) o National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (holding that the government can require persons applying for Customs positions involving drug interdiction to submit to drug testing). o Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989) (holding that the government can require railway employees who have been involved in an accident to submit to drug testing). Breathalyzer o Skinner supra. o Birchfield v. North Dakota, 579 U.S. 438 (2016) (upholding warrantless breath tests).
4. Was the Fourth Amendment Violated? Now we get to the really sticky part. The guts of the query here is how much protection does the Fourth Amendment provide? Another way of thinking about, practically, is can the Government justify its intrusion as reasonable? Having established all of the earlier questions – government action, standing, and the implication of the Fourth Amendment by a search or seizure – the question turns to whether the circumstances define a violation of the right. In answering this question, courts look to whether the search or seizure was “reasonable” under the circumstances, which generally takes one of two forms: either (1) obtaining a warrant based upon a neutral magistrate’s finding of probable cause, or (2) establishing facts which invoke one of the recognized, ostensibly limited exceptions to the warrant requirement, in combination with the requisite showing (generally information establishing the same probable cause, but in some circumstances, a lesser reasonable suspicion standard will suffice). If a warrant was issued, then reasonableness is presumed, and by and large, unless you find a huge gaffe in the affidavit of the search warrant, your client is going to be out of luck. So long as there is a neutral and detached magistrate, the warrant describes with particularity the
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items to be seized and the place to be searched, and states probable cause with sufficiency, veracity and particularity, it will pass appellate scrutiny. If the defendant makes a state constitutional argument, then the proper inquiry is the reasonableness of the search or seizure under the totality of the circumstances; whereas if the defendant makes a statutory argument, the proper inquiry is whether there was probable cause with respect to that individual and whether the arrest fell within one of the statutory exceptions. With the foregoing as the analytic framework, the specifics of searches with and without warrant will be covered in subsequent sections C. Search Warrant Issues While the issuance of a warrant creates a presumption that a search was reasonable – including officers’ ability to rely on warrants if acting in “good faith,” even if the probable cause is later found to be lacking – this is a rebuttable presumption, and there are some circumstances where a warrant’s issuance may be so defective or tainted that the presumption of reasonableness is rebutted. Such circumstances include falsehoods incorporated into the search warrant application (affidavit); lack of timely execution of a warrant (stale information); a warrant based on tainted information, i.e., information obtained through a Fourth Amendment violation; and efforts to extend a warrant to justify searches of persons who happen to be present at a place where a warrant is being executed. Cases to keep in mind include: Franks v. Delaware, 438 U.S. 154, 155 (1978) (holding that there must be a truthful showing in the affidavit). A defendant has the right to challenge the veracity of an affidavit upon which a warrant has been issued, but the attack must be more than conclusory and must point out specifically and with support that portion of the affidavit which defendant claims is false. If a defendant meets this requirement and that portion of the warrant is set aside, but the remaining content is sufficient to support probable cause, the warrant stands. If the remaining portion of the warrant does not support probable cause, then defendant is entitled to a hearing. If in the hearing it is determined that a false statement was included in the warrant, then the fruits of the search are tainted and must be suppressed. Put more simply: if the officer lies, and probable cause would not exist but for the lie, then the warrant is invalid.
The lie also
constitutes bad faith per se, necessitating suppression. Ybarra v. Illinois, 444 U.S. 85, 87 (1979) (holding that probable cause must be particularized with respect to the individual whose privacy is invaded). This is the case with the
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great and often quoted language “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Kann v. State, 694 S.W.2d 156, 158 (Tex.App.—Dallas 1985, pet. ref’d) (holding the warrant invalid because the officer obtained his view of the marihuana in Kann’s backyard by tresspassing onto her carport (curtilage) to look through a hole in her fence; the initial illegality tainted the warrant which was based on information derived from that illegal search). U.S. v. Cole, 628 F.2d 897, 898 (1980) (holding that a pat down search of Cole, who drove up to the place the police were already running a warrant, could not be justified merely because he was present while a warrant was being executed). State v. Lippert, 664 S.W.2d 172 (Tex. Crim. App. 1984) (reversing a POCS conviction where police found drugs on Lippert when they stopped and frisked him as he walked into a house where the officers were executing a search warrant; same as Cole). State v. Bell, 845 S.W.2d 454, 456 (Tex.App.—Austin 1993, no pet.) (holding that a search warrant for a house did not authorize a search of a defendant who was sitting on the front porch of the house and hollered “police, police” when officers approached the house to execute the warrant.
The officer’s general knowledge that it was common for persons dealing in
narcotics to carry weapons also did not justify a stop and frisk of the defendant.) Morris v. State, 62 S.W.3d 817, 819 (Tex.App.—Waco 2001, no pet.) (search warrant affidavit was stale); see also Rowell v. State, 14 S.W.3d 806, 808 (Tex.App. –Houston [1st Dist.] 2000, pet. granted) (evidence was suppressed for lack of probable cause because the warrant was issued six months after the transaction upon which affidavit was based occurred); and Sherlock v. State, 632 S.W.2d 604, 605 (Tex. Crim. App. 1982) (evidence should have been suppressed because the search warrant and affidavit were defective because the facts upon which they were based were not sufficiently closely related to the time of issuance to satisfy probable cause). State v. Baldwin, 614 S.W.3d 411 (Tex. App. – Houston [14th Dist.] 2020, pet. granted) (en banc). (affirming trial court’s orders suppressing cell phone evidence discovered as a result of affidavit showing only that two individuals were involved in a murder, along with boilerplate language about the various uses of cell phones; en banc court rejected the idea that any time an offense is committed by more than one person, cell phones must necessarily have been used). (The Court of Criminal Appeals affirmed in a 5-4 decision; State v. Baldwin, __ S.W.3d ___,
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2022 WL 1499508 (Tex. Crim. App. 2022). At the time of writing, this case has still not been released for publication.) 1. Conclusory Statement in Affidavit Lowery v. State, 843 S.W.2d 136, 138 (Tex.App.—Dallas 1992, pet. ref’d). The search of appellant’s house violated the Fourth Amendment because nothing in the affidavit supported the reliability, credibility, or basis of knowledge of the “persons on the street” who provided the officers with information concerning criminal activity (that drugs were present or being dealt in appellant’s house). The court found no basis for crediting each level of hearsay in the tip, thus the hearsay-upon-hearsay in the affidavit does not support a finding of probable cause. Barraza v. State, 900 S.W. 2d 840, 841 (Tex.App.—Corpus Christi 1995, no pet.). Appellant’s conviction for misdemeanor possession of marihuana was reversed because the search warrant lacked probable cause. The search warrant contained only a mere conclusory statement regarding the reliability of the informant, nothing in the affidavit demonstrated how the informant obtained her knowledge, or whether the informant had previously given information which had turned out to be reliable. Stocker v. State, 656 S.W.3d 887 (Tex. App. – Houston [14th dist.] 2022, pet. granted) (affidavit in support of search warrant for cell phone contents lacked any evidence presenting a nexus between the cell phone and the alleged crime, and rather presented only conclusory allegations) 2. Warrant Description of the Property Insufficient Cannady v. State, 582 S.W.2d 467, 468 (Tex. Crim. App. 1979). “Where premises sought to be searched are described in search warrant by certain street number, such a description will not authorize a search of some other street number.” However, in this case the search of the adjoining office was reasonable, even though the addresses were different, because officers observed appellant and others moving from one office to the other. State v. Chavarria, 992 S.W.2d 22, 23 (Tex.App.—Houston [1st Dist.] 1997, pet. ref’d). The State appeals defendant’s motion to suppress. The court found the motion to suppress was properly granted because the warrant contained an address that differed slightly from appellee’s address, and the description of the home differed from appellee’s home. The officers relied solely on the language of the warrant, and failed to make any further inquiry prior to the search.
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State v. Wood, 828 S.W.2d 471, 472 (Tex.App.—El Paso 1992, no pet.) (recognizing that defendant met the burden of establishing that the official conduct was not proper by establishing that “fiber evidence” taken from defendant’s vehicle was not mentioned in the search warrant and that the State failed to prove that the search was permissible under an exception to the warrant requirement or was reasonable under the circumstances). Lamb v. State, 603 S.W.3d 152 (Tex. App. – Texarkana 2020, no pet.) Okay, this isn’t exactly an insufficient description of “the property,” but it is an insufficient description of the things and places to be searched.
Warrant authorized search of defendant’s real property,
residence, and vehicles. Officers searched the defendant’s real property, residence, vehicles, and person. Court holds that since the warrant did not authorize a search of the defendant, this portion of the search was unlawful, and since admission of the cell phone found on the defendant’s person (and its contents) was not demonstrated to be harmless beyond a reasonable doubt, the court reversed and remanded for new trial. 3.
Technical Requirements of Warrants
State v. Arellano, 600 S.W.3d 53 (Tex. Crim. App. 2020) (By statute, warrants have to be legibly signed by the magistrate who issues it, so what happens when no one can read the signature and figure out or remember which judge issued the warrant? Under the statutory good faith exception, nothing; the CCA held that officers can rely on such a warrant under the good faith exception.) Most cases involving search warrants are very difficult to overcome. You will usually have better luck in a case where no warrant was obtained, notably as the burden shifts to the government to justify the warrantless search via some exception to the warrant requirement; to these exceptions, we now turn. D. Terry Stops One of the most important exceptions to the probable cause requirement, articulated in Terry v. Ohio, 392 U.S. 1, 4 (1968), with which facts you should be intimately familiar, is found in the stop and frisk situation. A valid Terry stop permits a limited frisk or pat-down of the outer clothing of a suspect for whom reasonable suspicion exists. The frisk may accompany the stop or temporary investigative detention when police have reason to believe that the suspect is both armed and dangerous. This belief, of course, is in addition to the requisite reasonable suspicion that criminal activity is afoot which must precede the initial stop. An investigative detention
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must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500 (1983). Also, unlike “on view” arrests under CCP 14.01(a) which authorizes a private person to make an arrest, in Garner v. State, 779 S.W.2d 498, 500 (Tex.App.—Fort Worth 1989, pet. ref’d) the court found no authority for a private person to make an investigative Terry stop.
Remember: do not automatically assume that suspicion
necessarily justifies a detention! 1. Person The scope of a proper frisk remains tied to the purpose the frisk was intended to serve, and because the Terry stop is initially limited to the discovery of weapons, items that do not feel like weapons cannot be recovered unless the officer can determine by “plain feel” that the object is contraband of another sort. See Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 2133 (1993) (holding that if an officer lawfully conducting a frisk feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; but the court held the search unlawful because the officer had to squeeze, slide, and manipulate the object in the suspect’s pocket to determine it was crack cocaine). U.S. v. McKinney, 980 F.3d 485 (5th Cir. 2020) gives an excellent step-by-step discussion of analyzing Terry stops. Remember that while reasonable suspicion is not a high bar, it still has to be there before officers can engage in such a detention, and if suspicion is lacking on a totality of the circumstances, then the ancillary questions going along with it – such as whether a frisk subsequent to the detention is lawful – are automatically subsumed in the initial illegality. In McKinney, a defendant convicted for being a felon in possession of a firearm successfully challenged an initial Terry stop of himself and others which officers had attempted to justify principally on the basis that shootings had taken place in the locale in the recent past. The court rejected the Government’s arguments regarding the defendant’s presence in a “high-crime area” and wearing clothing that happened to be colored the same as a color associated with a particular gang as coincidental and of low persuasive value. (It is worth noting that on remand, the trial court conducted an evidentiary hearing, again denied suppression, and reentered a judgment of conviction; in a per curiam opinion, the 5th Circuit summarily reversed the denial of suppression and vacated the defendant’s conviction; see 2022 WL 2101519 (unpub. op.)).
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On the other hand, United States v. Thomas, 997 F.3d 603 (5th Cir. 2021) gives the limits of McKinney; in that case, police who had located a car involved in an armed robbery found a couple of individuals – the defendant being one of them – standing around the car and conversing with its occupants. The Fifth Circuit held that these circumstances justified a Terry stop and frisk of both the car’s occupants as well as the people immediately around it, and denied Thomas’s motion to suppress evidence found in the frisk. Davis v. State, 61 S.W.3d 94, 96 (Tex.App.—Amarillo 2001) (holding that defendant’s actions in walking to and from a group of people gathered in a yard, at midnight, in a high crime area, while appearing nervous, did not provide reasonable suspicion to justify police officer’s stop and frisk of defendant). Salcido v. State, 758 S.W.2d 261, 262 (Tex. Crim. App. 1988) (en banc). Based on a call from an informant, police learned that appellant was selling heroin at a car wash facility. When the police arrived, appellant did not appear to be using the car wash, but was sitting in an area with other dry cars talking to two other people with his car door open. The officer did not see anything that appeared to be a sale and did not see appellant’s hands or arms outside of the vehicle. When the police approached appellant, he tried to run and threw down heroin. In holding that appellant’s motion to suppress should have been granted the court found that appellant was illegally detained without specific and articulable facts to justify the stop, and he did not voluntarily abandon the contraband in question but rather was discarded as a spontaneous reaction to police conduct. In Hawkins v. State, 758 S.W.2d 255 (Tex. Crim. App. 1988), which the court also relied on in Salcido v. State, 758 S.W.2d 261 (Tex. Crim. App. 1988), an officer saw defendant standing in front of a nightclub in a high crime area and near a parking lot where drugs were frequently found by the police. The officer knew the defendant had a reputation for dealing drugs, but he did not have a warrant, a tip, information, and had seen no criminal activity. As the defendant started walking the officer called him, but the defendant continued to walk. The officer called for assistance, and a second officer closed in on defendant as the first officer approached from the opposite direction. The defendant then threw a paper bag in the ditch and began to run. The court found that Hawkins had been illegally stopped due to a lack of specific and articulable facts to justify the detention and found that the abandonment of the contraband was a direct result of the police misconduct. As such, the taint of the officers’ illegal conduct
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was not removed, and the evidence should have been suppressed. The “police misconduct” strain appears to have very subtle limits, however, when contrasting Hawkins and Salcido with State v. Rose, 844 S.W.2d 911 (Tex. App. – Tyler 1992, no pet.). In Rose, an officer spotted the defendant standing in the middle of a roadway “like a drug dealer,” and the officer approached while telling Rose that he wished to converse. Rose walked away, and did not respond to a further “request” – not “command” – by the officer to stop; another officer approached from a different direction, at which point Rose discarded what turned out to be contraband. The court in that case, relying on California v. Hodari D., 499 U.S. 621 (1991), held that the abandonment occurred before a “show of authority or application of physical force,” and reversed the trial court’s grant of suppression. Rose expressly stated that Salcido had implicitly been brought into question; however, a number of subsequent Courts of Appeals opinions have relied on Salcido, so this appears to remain an open question. Davis v. State, 829 S.W.2d 218, 219 (Tex. Crim. App. 1992) (en banc) (holding that although the officer’s investigatory stop of the defendant to determine whether he was selling drugs was legal, when the officers’ subsequent Terry frisk of defendant revealed no weapons but only a matchbox, their search conducted by opening the matchbox (and thereby discovering cocaine) was illegal). Massey v. State, ___ S.W.3d ___, 2023 WL 3083159 (Tex.Crim.App. 2023) (defendant stopped for failure to display a registration sticker was subjected to an illegal Terry frisk; but the taint of that illegal frisk was attenuated by defendant’s resistance to the frisk. CCA holds that the resistance constituted a new offense as an intervening circumstance, and even though he wasn’t prosecuted for that offense, it rendered the methamphetamine subsequently found on the ground in his immediate vicinity admissible. CCA thus reversed Court of Appeals and upheld trial court’s original denial of motion to suppress.) 2. Traffic offenses While there is a separate “automobile exception” for purposes of warrantless searches, traffic offenses have been comprehensively determined at both the Federal and state levels to be governed by Terry’s rules regarding reasonable suspicion, rather than the more restrictive probable cause framework. Some notable cases:
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Whren v. U.S., 517 U.S. 806, 808 (1996) (holding that temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of ‘persons’ within the meaning of the Fourth Amendment). Rodriguez v. U.S., 575 U.S. 348 (2015) (holding that extraneous investigation during an otherwise lawful traffic stop becomes illegal if it “measurably extends” the original reason for the stop, unless independent probable cause is developed in the interim; of note, the Supreme Court analogized a traffic stop to a Terry stop-and-frisk, rather than to a probable cause on-view arrest). Kansas v. Glover, 589 U.S. ___, 140 S.Ct. 1183 (2020) (officers had reasonable suspicion to stop vehicle and investigate driver solely on the basis that the registered owner of vehicle was shown by computer records to have a revoked driver’s license). Klare v. State, 76 S.W.3d 68, 70 (Tex.App.-Houston [14th Dist.] 2002, pet. ref’d). Klare was convicted of DWI. Officer noticed defendant’s car parked off the highway behind a strip shopping center, facing a 24-hour convenience store at about 2:30 a.m., so he went to investigate. The officer lost sight of defendant, whereupon he proceeded onto the adjoining road, and within about 15 seconds, came upon a car he believed to be the one previously parked at the store and arrested the defendant. The officer believed he was entitled to stop the defendant because of the time of day, the closed businesses, previous burglaries in the shopping center in the past, he needed to identify the truck, and was concerned that someone inside the truck might have needed help under the community care-taking exception to lack of probable cause. The court found these reasons insufficient to believe that the defendant was or was about to be engaged in criminal activity, therefore he was not justified in conducting an investigatory stop of the defendant. Wolf v. State, 137 S.W.3d 797, 799 (Tex.App.—Waco 2004, no pet.) (pre-Rodriguez, holding that because the initial detention was longer than reasonably necessary to effectuate the purpose of the stop, that is, to warn Wolf about the defective tag lamp, and because the prolonged detention was not supported by reasonable suspicion, the prolonged detention violated the Fourth Amendment; Wolf’s subsequent consent to a search of the truck did not attenuate the taint of the unlawful detention). Koethe v. State, 152 S.W.3d 54, 57 (Tex. Crim. App. 2004) (pre-Rodriguez, holding that although it is reasonable to perform a warrant and license check, a warrant check cannot be used
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solely as a means to extend a detention once the reasonable suspicion forming the basis for the stop has been dispelled; but in this case, officer’s continued detention of defendant after determining defendant was not intoxicated, to await results of a computer warrant check and then to await results of whether defendant was in possession of stolen property, was reasonable). Thomas v. State, 420 S.W.3d 195 (Tex. App. – Amarillo 2013). On remand from the CCA after it reversed the Ct. App.’s initial affirmance. Held that prolonged detention after the officer (DPS trooper) had issued a warning citation for the original traffic violation violated the Fourth Amendment and the evidence seized as a result of a subsequent dog sniff should have been suppressed. Specifically distinguished Brigham, 382 F.3d 500 (5th Cir. 2004), discussed separately. State v. Hardin,
S.W.3d
, 2022 WL 16635303 (Tex. Crim. App. 2022) (holding
that Tex. Transp. Code § 545.060, requiring drivers to drive “as nearly as practical” within a single lane and to not move from the lane unless it can be done safely defines one offense, rather than two, overruling Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016) (plurality op.) and implicitly overturning Courts of Appeals cases such as Reyes v. State, 603 S.W.3d 543 (Tex.App. – El Paso 2020); therefore, officers must observe movement outside a single lane that is unsafe to have reasonable suspicion to stop under that statute.) Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) (holding that stops for traffic offenses must be supported by Terry-like reasonable suspicion under the totality of the circumstances.) State v. Colby, 604 S.W.3d 232 (Tex. App. – Austin 2020, no pet.) (court affirms trial court’s suppression of intoxication evidence obtained after stop of appellant for stopping in an intersection while yielding to an officer who had entered the intersection from a cross street, finding that statutory exception to prohibition on stopping in an intersection to avoid “conflict with other traffic” was clearly implicated, and that officer should have considered this exception in determining whether appellant had actually committed a traffic infraction). State v. Dominguez,
S.W.3d
, 2022 WL 3500209 (Tex. App. – El Paso 2022, pet.
ref’d) (officer’s justification for investigating traffic offense ended with defendant’s admission of offense, but officer nevertheless continued investigation; final hurdle was confirmation of insurance coverage, which officer received before continuing to detain driver for free air canine sniff; trial court grant of motion to suppress upheld on appeal).
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E. Exceptions to the Warrant Requirement Grounded in the Fourth Amendment’s requirement that restricts the government to conducting searches and seizures that are not “unreasonable,” the Supreme Court has allowed for warrantless searches and seizures under specific delineated circumstances where it has adjudged that the particular interests involved justify the dispensation with the necessity to obtain a warrant. It should be noted, however, that even in such circumstances, the requirement that officers have probable cause to take action still applies just as in cases where officers obtain a warrant; the difference in analysis, however, is that when a warrant issues, the search or seizure is presumptively reasonable, and the defendant bears the burden of demonstrating otherwise, while warrantless action is presumptively unreasonable, and the government has the burden of demonstrating both that some exception applies, and that the facts establish the requisite probable cause. 1. Arrest Without a Warrant Although the federal constitution has been interpreted to permit a warrantless arrest in a public place even if the officer could have easily obtained a warrant, United States v. Wilson, 423 U.S. 411 (1976), in Texas an arrest without a warrant must be justified by the existence of explicit statutory authority per Dejarnette v. State, 732 S.W.2d 346, 349 (Tex. Crim. App. 1987). The main provisions permitting warrantless arrests are found in Code of Criminal Procedure Chapter 14 and Article 18.16. Torres v. State, 182 S.W.3d 899, 900 (Tex. Crim. App. 2005) (en banc) (overruling Castillo v. State, 818 S.W.2d 803 (Tex. Crim. App. 1991)), appellant drove his car into the front porch of a house whereupon a DPS trooper was called in to investigate the accident despite the fact that two local officers were already on the scene when the trooper arrived. The two local officers told the trooper that they believed appellant was intoxicated. The trooper did not perform any FST’s nor did he ask appellant if he had been drinking, but rather only generally questioned appellant who simply explained that he was unfamiliar with the road. The trooper arrested appellant and took him to the hospital for treatment, after he noticed he was favoring one arm. The trooper then took appellant to the station where he refused a breath test and was subsequently arrested for DWI. In noting that probable cause must be based on facts rather than opinions, the court noted that “opinions, even those of police officers, cannot be transformed into facts without supporting evidence,” which was absent in this case. The court found that the local
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officers had expressed their opinion to the trooper, who acted on that without receiving or developing an independent factual basis supporting that opinion; in the absence of that factual basis, the trooper lacked probable cause to make the warrantless arrest. State v. Espinosa,
S.W.3d
, 2023 WL 2903688 (Tex Crim. App. 2023) (Court
of Criminal Appeals reversed suppression on these facts: defendant was seen passed out and nonresponsive in the driver’s seat of a vehicle parked in a long line to pick up students from elementary school; the defendant woke up after substantial pounding on the door/window, and opened the door, when the private citizen attempting to assist smelled alcohol coming from the vehicle; defendant was clearly intoxicated. While no one – private citizen, officers, etc. – saw defendant operating the vehicle, there was a substantial line in front of and behind the defendant’s vehicle in a lane designated for moving traffic, with no gaps around her, when the line had begun to form about fifteen minutes before she was found. In conjunction with four wine bottles found when inventorying the vehicle, CCA held this evidence was sufficient to provide probable cause that Espinosa had operated the motor vehicle while intoxicated and reversed the lower courts’ grant of defendant’s motion to suppress. 2. Search Without a Warrant a. Search Incident to Arrest Keep in mind that in order for a search without a warrant to be valid under the search incident to arrest exception to the warrant requirement, there must first be a lawful arrest. Williams v. State, 726 S.W.2d 99 (Tex. Crim. App. 1986) (holding the fact that the search incident to arrest preceded the formal custodial arrest by a few moments is of no consequence under Rawlings v. Kentucky, 448 U.S. 98, 100 (1980)). Arizona v. Gant, 556 U.S. 332 (2009), also modifies the extensive “searches incident to arrest” commonly executed by officers to restrict the search to one justifiable by a need for officers to protect themselves against an actual and continuing threat by the arrestee or in order to preserve evidence directly related to the offense of arrest or some other offense that officers have probable cause to believe has been committed against tampering. For vehicles, this means that officers may search a vehicle only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search, or that the vehicle contains evidence of the offense of arrest. It is worth noting that in context of traffic offenses, Texas officers generally have discretion to arrest for almost all Class C Transportation Code violations, except for speeding
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and open container violations (when the detainee is a Texas resident and is willing to sign a citation). This means that those offenses can be used to make a lawful arrest, which can then justify a search incident to arrest. See Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (holding that arrest for a Texas Class C seatbelt violation was not a Fourth Amendment violation). b. Exigent Circumstances and the Protective Sweep As previously noted, even if a search or arrest warrant is valid, police nevertheless may not stop and search everyone on the premises (which is a common Task Force tactic for “routine officer safety”). That broad rule notwithstanding, the Texas Court of Criminal Appeals has recognized, as a limited exception to the warrant requirement, officers’ conduct of a protective sweep of premises incident to an arrest in order to discover persons present who may endanger the safety of the officers on the scene. Reasor v. State, 12 S.W.3d 813, 814 (Tex. Crim. App. 2000) (holding that when conducting an in-home arrest, an officer may sweep the house only if she possesses an objectively reasonable belief, based on specific and articulable facts, that a person in that area poses a danger to that officer or to other people in the area, but the protective sweep must stay within the appropriate scope and may only last long enough to dispel the reasonable suspicion of danger). Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 2589 (1981) (holding a valid search warrant implicitly carries with it the limited authority to detain the occupants at the premises while a proper search is conducted). For the exigent circumstances exception to the warrant requirement to apply, reasonable suspicion must exist to believe that knocking and announcing is dangerous or futile, or that effective investigation would be inhibited, for example, by destruction of the evidence. Lange v. California, 594 U.S. ___, 141 S.Ct. 2011 (2021) (warrantless entry into home after pursuit on suspicion of commission of a misdemeanor is not automatically justified; some exigent circumstance must exist justifying the law enforcement entry into the home, or a warrant must be obtained).
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Mitchell v. Wisconsin, 588 U.S. ___, 139 S.Ct. 2525 (2019) (exigent circumstances almost always exist permitting warrantless blood draw when a driver suspected of drunk driving is found unconscious, regardless of length or shortness of time required to obtain warrant). In Grimaldo v. State, 223 S.W.3d 429 (Tex. App.—Amarillo 2006, no pet.), the police arranged to purchase cocaine through a confidential informant. During the buy-bust, the officer signaled for the sellers to be arrested. At the same time another arrest was taking place at a nearby house which officers were watching. One officer watching the house saw appellant exit the house, approach the street, look up and down it, cross to the other side, walk towards another house, and return several minutes later. The other officer watching the house did not see the aforementioned activity because he had gone around the corner to put on a bulletproof vest because he was near the “target location” and already knew that he would be entering the house before he learned of appellant’s activity. Another officer confirmed that the police decided to enter the house when they learned the drugs in question were sold from it. Thus, the police approached the house, knocked twice without response, forcibly entered, and then conducted a protective sweep but found no drugs. The officers placed all occupants in handcuffs and then took appellant to a back bedroom where he subsequently inculpated himself and gave consent to search. In determining that the taint of appellant’s consent had not sufficiently dissipated, the court considered whether 1) the temporal proximity between the unlawful seizure and consent given was close; 2) the unlawful seizure brought about police observation of the particular object for which they sought consent to search; 3) the illegal seizure was flagrant police misconduct; 4) the consent was volunteered rather than requested by the officers; 5) the detainee was made fully aware of the fact that he could decline to consent to the search; and 6) the purpose underlying the seizure was to obtain consent. Remembering McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991) (en banc) and Barocio v. State, 158 S.W.3d 498, 500 (Tex. Crim. App. 2005), the court noted that “exigent circumstances justifying a warrantless entry into a home include 1) rendering aid or assistance to persons whom the officers reasonably believe are in need of assistance, 2) preventing the destruction of evidence or contraband, 3) protecting the officers from persons whom they reasonably believe to be present, armed, and dangerous, Estrada v. State, 154 S.W.3d 604, 608 n.12 (Tex. Crim. App. 2005), and 4) an increased likelihood of apprehending a suspect.”
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In McNairy v. State, 835 S.W.2d 101, 102 (Tex. Crim. App. 1991) (en banc), the Organized Crime Unit responded to a call from other officers that they had been called to a disturbance involving burning vehicles and found a quantity of drugs and paraphernalia. Upon arrival, officers secured consent of the owner of the premises to search whereupon they discovered a methamphetamine lab. The officers then searched the land behind the residence and came upon a mobile home from which they determined the smell of methamphetamine was emanating. As the officers came upon the mobile home, they heard the back door of the trailer swing open and people running into the nearby brush. Thus, one officer went to the front door and another went to the back, and subsequently entered the trailer whereupon they saw chemicals associated with the manufacture of methamphetamine.
The officers secured the trailer,
questioned the owner of the first house, and learned for the first time that the trailer had been rented to defendant.
In affirming defendant’s conviction for aggravated possession of
methamphetamine, the court held that probable cause existed at the time of the initial entry into defendant’s house, and exigent circumstances existed to obviate the need for a search warrant and justify the initial warrantless entry into defendant’s home. The court went on to note that “situations creating exigent circumstances usually include factors pointing to some danger to the officer or victims, an increased likelihood of apprehending a suspect, or the possible destruction of evidence.” The following are factors relevant to a determination by the searching officers that evidence might be destroyed or removed before a search warrant can be obtained: 1) the degree of urgency involved and the amount of time necessary to obtain a warrant; 2) reasonable belief that the contraband is about to be removed; 3) the possibility of danger to the police guarding the site of the contraband while a search warrant is sought; 4) information indicating the possessors of the contraband are aware that the police are on their trail; and 5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in drug trafficking. Parker v. State, 206 S.W.3d 593 (Tex.Crim.App. 2006) (holding that the totality of the circumstances, including the fact that officers could smell the odor of marijuana at the door to a residence, justified the warrantless entry into that home because they had probable cause to believe that someone there was in possession of marijuana). Martin v. State, 620 S.W.3d 749 (Tex. Crim. App. 2021) (entry for safety check at firefighter request justified by exigency of fire, and observation of contraband in plain view was
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admissible and gave rise to PC to support a subsequent warrant, though opening containers without a warrant was improper). Pool v. State, 157 S.W.3d 36, 39 (Tex.App.—Waco 2004, no pet.) (memorandum opinion). An unknown confidential informant told the police that he had seen several people walking around appellant’s house along with several propane tanks in the yard and that he believed appellant was probable cooking methamphetamine. Officers initiated a “knock and talk” with appellant, and while at the front door, the officers smelled a chemical odor. After appellant answered the door, other policemen walked around a partial fence to appellant’s backyard where the officers smelled chemicals, saw propane tanks, hoses hooked to the tanks, coffee filters, a cooler with duct tape, and a container with an unknown liquid next to a beige travel trailer. At this point the cops went and obtained a search warrant. Because the court found no probable cause for the issuance of a warrant to search appellant’s house, any exigent circumstances would not justify the warrantless entry. Johnson v. State, 47 S.W.3d 701, 704 (Tex.App.—Houston [14th Dist.] 2001, pet. granted) (overruled on other grounds), is similar to Pool, 157 S.W.3d 36, 39 (2004). In Johnson, an unknown informant told the police that he had looked through a hole in appellant’s fence and saw him manufacturing crack cocaine, so the officers went to investigate. The officers first went to the back of the house and looked through the slats in appellant’s fence, and from this vantage point they could see into appellant’s window whereupon they saw a box of baking soda and a triple beam balance scale. One officer then went to conduct a “knock and talk” while the other stayed out back and saw appellant appear in the window, look surprised, and then dart away. The officer, stating he was afraid for his safety, entered the backyard, looked through the glass patio door, and saw crack cocaine. The court found that the officer had no probable cause to justify the entrance into appellant’s yard because the scale and the baking soda were both legal items, neither of which corroborated the informant’s information. Further, the fact that appellant darted away from the window after looking surprised was not illegal and not unusual given the late hour according to the court. Bedford v. State, 131 S.W.3d 514, 515 (Tex.App.—Waco 2004, pet. dism’d) (noting that the burden of showing a justification for a no-knock entry is not high and affirming the trial court’s decision to deny defendant’s motion to suppress, the appellate court held that the
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officer’s no knock-entry was justified by the officers’ reasonable belief that evidence would have been destroyed if they had knocked and announced their presence). Ramirez v. State, 105 S.W.3d 730, 735 (Tex.App.—Austin 2003, no pet.) (acknowledging that although the protective sweep was legal, it did not allow the officer to search the cooler inside the garage, where the only items of contraband were found, because the officer could not reasonably believe that a person might be found in the cooler). In Kaupp v. Texas, 538 U.S. 626, 123 S.Ct. 1843, 1844 (2003) (per curium), after a 14year-old girl disappeared the police learned that she had been in a sexual relationship with her half brother, who confessed to the killing and had been in the company of Kaupp on the day of the girl’s disappearance. Id. The police were not able to get an arrest warrant for Kaupp, but the detectives nevertheless decided to bring him in for questioning. Id. at 1845. Thus, at 3:00 a.m. the officer arrived in plainclothes at Kaupp’s house, were let in by Kaupp’s father, went into Kaupp’s bedroom, awakened him with a flashlight, identified himself, and told Kaupp it was time to talk, whereupon Kaupp said “okay.” Id. The other officers then handcuffed and led Kaupp, dressed in boxer shorts and a shirt with no shoes, to the patrol car. Id. On the way to the station, the officers stopped for 5 or 10 minutes at the place where the girl’s body had been found and then took Kaupp to an interview room where he eventually confessed. Id. In finding Kaupp’s confession had to be suppressed, the court noted that “although certain seizures may be justified on something less than probable cause, see e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we have never sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purpose absent probable cause or judicial authorization.” Id. at 1846. Igboji v. State,
S.W.3d
(Tex.Crim.App. 2023) After defendant posted a Snapchat
video of officers at the scene of and in the process of investigating a robbery, officers call the defendant in three days later for a formal statement, at which point a detective requested consent to go through defendant’s cell phone; when defendant refused, the detective seized defendant’s cell phone without a warrant “to preserve whatever was on the device.” Two days later, the detective applied for a warrant to search the phone. CCA upholds the initial seizure as justified by exigent circumstances even though there was no affirmative conduct proving a risk of imminent destruction of evidence by the defendant. All that is required is police believe there is
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risk of imminent destruction of evidence if they wait to get a warrant. Remanded for new hearing on whether exigency existed. State v. Ruiz, 622 S.W.3d 549 (Tex. App. – Corpus Christi 2021) (on 2nd remand from CCA, holding that when drunk driving suspect was found unconscious, and where there was shortage of law enforcement officers, exigent circumstances existed for warrantless collection of blood). c. Plain View Joseph v. State, 807 S.W.2d 303, 305 (1991) (en banc) (holding that for the plain view exception to the warrant requirement to attach, the following two requirements must be met: 1) the officer must be in a proper position to view the item or lawfully be on the premises; and 2) the fact that the officer has discovered evidence must be immediately apparent). Chapman v. State, 2005 WL 1994294, at *1 (Tex.App.—Fort Worth) (holding the plain view exception to the warrant requirement did not apply to all of the evidence seized from appellant’s residence including dry ice and two small containers, the presence of which cannot be said to be illegal, because the officer deviated from appellant’s front door when serving the arrest warrant and did not have a right to be where he was when he viewed the particular items). Kyllo v. U.S., 533 U.S. 27, 121 S.Ct. 2038, 2040 (2001) (holding that where the government uses a device such as an infrared camera that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, without regard to whether the details were directed solely to unlawful activity or which captured lawful activity as well, the surveillance is a “search” and presumptively unreasonable without a warrant). Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 838 (2005) (holding that where a lawful traffic stop was not extended beyond the time necessary to issue a warning ticket, another officer’s arrival at the scene while the stop was in progress and use of a well-trained narcotics dog around the exterior of appellant’s car was not a search for Fourth Amendment purposes). United States v. Vela, 486 F. Supp. 2d 587, 590 (W.D.Tex. 2005) (memorandum opinion) (noting the significant technological differences between the thermal imaging device used in Kyllo and the night vision goggles used to search appellant’s property, the court held that the use of night vision goggles was not violative of the Fourth Amendment).
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Nicholas v. State, 502 S.W.2d 169 (Tex. Crim. App. 1973) (holding that where officer’s original entry into appellant’s apartment was to arrest him for being a fugitive from another state, the officers’ examination of film negatives that were beyond the appellant’s immediate control by holding them up to the light, examination and seizure of such negatives exceeded the limits of search incident to arrest, and the seizure could not be justified under the “plain view” doctrine). Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 1151 (1987) (where officers moved stereo equipment in order to locate and subsequently record the serial numbers to determine if such equipment was stolen, the officer’s actions in moving the equipment was not a plain view exception, but rather a search which required probable cause even though the officer was lawfully present in the apartment where the equipment was located). State v. Steelman, 93 S.W.3d 102, (Tex.Crim.App. 2002) (Tex. Code Crim. Proc. Art. 14.01 case, holding that the plain odor of marijuana standing alone, does not authorize a warrantless search and seizure in a home, and an arresting officer must have specific knowledge to believe that the person to be arrested committed the offense; since the officers had no idea who was smoking or possession the pot, they lacked probable cause to believe that the defendant (or any other specific person) was committing the offense in their presence); but see Parker v. State, 206 S.W.3d 593 (Tex.Crim.App. 2006), holding that similar facts give rise to probable cause to believe someone in a home was in possession of marijuana, and that totality of the circumstances must be examined). d. Inventory Searches South Dakota v. Opperman, 428 U.S. 364, 365 (1976) (holding that once the officer was lawfully inside the vehicle to secure the personal property in plain view it was not unreasonable to open the unlocked glove compartment, to which vandals would have had ready and unobstructed access once inside the vehicle and in which the subject marijuana was discovered). Rothenberg v. State, 176 S.W.3d 53 (Tex. App. – Houston [1st Dist.] 2004) (holding that officers may open closed containers as part of an inventory search as long as the inventory is conducted in good faith pursuant to standard department procedure). e. “Open Fields” Doctrine Hester v. United States, 265 U.S. 57 (1924) (holding that Fourth Amendment extends to home and curtilage, and not to open fields).
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State v. Hobbs, 824 S.W.2d 317, 318 (Tex.App.—San Antonio 1992, pet. ref’d) (reading the Texas exclusionary rule – Art. 38.23 – literally to require that “no evidence obtained…in violation of any provisions of the Constitution or laws of the State of Texas is admissible,” the court, without discussion of the open fields doctrine, found no exception to the trespass statute for law enforcement officers and affirmed the trial court’s suppression of the evidence; note that this requires specifically invoking Art. 38.23 and the law of trespass, and contrast with Nowlin v. State, 2022 WL 790901 (Tex. App. – Dallas 2021), holding that warrantless search of a possibly stolen vehicle seen in an open field rather than on a home curtilage was not a constitutional violation). Auld v. State,
S.W.3d
, 2023 WL 2506432 (Tex. App. – San Antonio 2023) (burn
pit on family land outside curtilage of home or other ranch structures was subject to open fields doctrine, and defendant therefore lacked standing (!) to challenge search warrant for the pit). f. Checkpoints and Administrative Searches Schenekl v. State, 30 S.W.3d 412, 413 (2000) (holding that a statute allowing an enforcement officer to stop and board a boat without probable cause or reasonable suspicion in order to perform a water safety check was a valid search as the heightened expectation of privacy which exists for cars does not exist for boats; random water safety checks are okay in order to facilitate recreational safety). Holt v. State, 887 S.W.2d 16, 17 (Tex. Crim. App. 1994) (en banc) (holding that because a governing body in Texas has not authorized a statewide procedure for DWI roadblocks, such roadblocks are unreasonable and unconstitutional unless and until a politically accountable governing body sees fit to enact nondiscriminatory constitutional guidelines regarding such roadblocks). g. Private Search Doctrine Salinas v. State, 625 S.W.3d 203 (Tex. App. – Corpus Christi 2021) (private search doctrine allows law enforcement to look at anything already seen by private individuals, and Art. 38.23 allows admission if the private individuals’ view was lawful; in this case, truck mechanics found a thumb drive in the truck, and on examination, found child pornography that was reported to law enforcement). h. Community Caretaking
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Caniglia v. Strom, 593 U.S. ___, 141 S.Ct. 1596 (2021) (§1983 case; officers made warrantless entry into home claiming “community caretaking” exception based on need for psychiatric examination of homeowner, and involuntarily seized homeowner and firearm collection; SCOTUS holds that community caretaking, associated with helping motorists and other individuals in public places, does not ordinarily extend to allow warrantless entry into home). F. Consent: Legal Stop + Consent but Involuntary We don’t usually miss the issue of Fourth Amendment application. However would you skip researching a motion to suppress if both the client and the Assistant. D.A. handling the case tells you that the defendant was stopped for a traffic offense and soon thereafter gave consent search that turned up some drugs? A lot of people would and do, and it’s understandable. After all, Whren v. U.S., 517 U.S. 806, 808 (1996) tells us that regardless of the officer’s subjective intentions he can stop any vehicle for any offense he can think of as means for making another investigation. Moreover, most judges believe that consent washes away all the taint of any prior illegality (USUALLY, but not always). 1. Fifth Circuit Evolving Fifth Circuit decisions held, similarly to Rodriguez v. U.S., 575 U.S. 348 (2015), that even if the initial basis for a stop is lawful, once that basis dissipates, continued detention is unlawful and can make the otherwise seemingly ‘voluntary’ (not beaten out of) consent the fruit of the poisonous tree. The unreasonable delay is usually due to continued questioning by the officer unrelated to the initial basis for the stop (see Fishing with Bill Dance). The situations encountered in this line of cases dealt with something of a Catch-22 situation for officers: if an officer requested consent to search while the detention was ongoing, in most cases, that consent would be tainted by temporal proximity to the original stop, so officers began completing their traffic stop before asking for consent, attempting to convert the encounter from a detention to a voluntary encounter. Initial cases in this situation, such as U.S. v. Dortch, 199 F.3d 193, 195 (5th Cir. 1999) and U.S. v. Jones, 234 F.3d 234, 236 (5th Cir. 2000), focused on unrelated questioning/consent to search made after the officer’s computer check came back in, with the Fifth Circuit holding the respective searches unlawful on the basis that there was no PC for continued detention at that point. After these initial cases, the en banc Fifth Circuit decided U.S. v. Brigham, 382 F.3d 500
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(2004). Brigham involved legitimate stop for following too closely; prior to conducted his computer checks and issuing a citation, the DPS trooper asked about eight minutes worth of “where are you going”-type questions unrelated to the basis of the stop. After the panel reversed, the en banc Fifth Circuit vacated the panel opinion and affirmed the conviction, holding that the questions about travel plans and itinerary were within the scope of detention for following too closely when neither the driver nor passenger were owner or lessee of the vehicle, and where the officer got inconsistent answers. U.S. v. Hernandez, 279 F.3d 302, 304 (5th Cir. 2002) (holding that where the first search (by manipulation) of the defendant’s suitcase was illegal, the second search to which defendant consented did not remove the taint of the illegal first search because of the close temporal proximity of the two searches). U.S. v. Valadez, 267 F.3d 395, 396 (5th Cir. 2001) (holding that continued detention of defendant was illegal after officer realized that defendant had not committed a traffic violation and that the window tint was legal). U.S. v. Hunt, 253 F.3d 227, 229 (5th Cir. 2001) (holding that the officer’s standard practice of searching a stopped car if the occupant leaves the vehicle is violative of the Fourth Amendment). U.S. v. Portillo-Aguirre, 311 647, 650 (5th Cir. 2002) (holding that when officers detain travelers after the legitimate justification for a stop has ended, the continued detention is unreasonable, and any further questioning beyond requesting documentation evidencing a right to be in the United States must either be based on consent or probable cause). U.S. v. Dortch, 199 F.3d 193, 195 (5th Cir. 1999). Defendant was detained and his rental car papers and driver’s license were confiscated by the officer in order to do a computer search. The officer did not return the documents after the search was completed, so the defendant was not free to go. The officer informed defendant that he would have to wait for the arrival of a drug dog. The court determined that the purpose of the computer check was to screen for warrants or determine if the car was stolen; once the computer check came back negative, defendant should have been released. U.S. v. Jones, 234 F.3d 234, 236 (5th Cir. 2000) (holding that officers should have ended the detention when the dispatcher notified them that defendants’ records were clean, which was three minutes before the officers sought consent to search).
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2. Supreme Court Ohio v. Robinette, 519 U.S. 33, 34, 117 S.Ct. 417, 419 (1996). Officer stopped appellant for speeding, ran a warrant and license check that came back clean, turned on his car camera, asked appellant to get out of the car, issued a verbal warning, and returned appellant’s license. At this point, the officer inquired as to whether appellant was carrying any illegal contraband in his car, to which appellant replied in the negative. The officer asked if he could search the car, appellant consented, and a search revealed drugs. In affirming appellant’s conviction, the court held that for purposes of the Fourth Amendment, it would be “unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.” Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (rejecting appellant’s argument that consent could not be valid unless the defendant knew that he had a right to refuse the request). But see Rodriguez v. United States, 575 U.S. 348 (2015); in that case, an officer stopped appellant for a traffic violation, and subsequently kept him detained on the side of the road while waiting for a canine unit to show up to conduct a dog sniff. The Court held that a traffic stop is more like a Terry stop than an arrest, and that the length of such a temporary detention is determined by the amount of time needed to address the original reason for the stop. Extraneous investigation can take place simultaneously with this detention so long as it does not extend the stop, and authority to continue the detention dissipates when the ordinary tasks tied to the traffic stop are or should reasonably have been completed, and continued detention is unlawful unless independent reasonable suspicion is developed. 3. Texas Court of Criminal Appeals Davis v. State, 947 S.W.2d 240, 241 (Tex. Crim. App. 1997) (en banc) (concluding that the purpose of the investigative detention was effectuated when the officers determined that Davis was not intoxicated; and as to the continued detention, when viewed in an objective fashion, no known fact or rational inferences from those facts, would support the conclusion that Davis was engaged in or soon would engage in criminal activity) (noting that the articulable facts used by the officer must create reasonable suspicion of 1) some activity out of the ordinary that is occurring or has occurred, 2) some suggestion to connect the detainee with the unusual activity, and 3) some indication the unusual activity it related to crime).
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When the basis for the stop is over either because it washes out (ex: the window tint WAS legal, after all) or because they are kind enough to just give the motorist a warning, the detention becomes illegal. This is especially so when the officer still has the person out of the car surrounded on all sides by the trooper’s car, the trooper, the person’s own car and another officer. Often the officer will still have the person’s driver’s license and insurance card on his clipboard as he seeks the consent. The clock on the in-car video can be valuable as can the video itself. G. Other Reversals 1. Invalid Consent Mitchell v. State, 831 S.W.2d 829, 830 (Tex.App.—Houston [1st Dist.] 1992, pet. ref’d). Undercover narcotics officers approached appellant on a bus and asked for permission to search his bag. Appellant asked the officers whether he had a right to privacy. The officers responded that he did, but then asked whether appellant would prefer that a narcotics dog sniff his bag instead. The court found that appellant’s consent was involuntary, and that appellant did not reasonably believe he was free to terminate the encounter. 2. Invalid Third Party Consent Georgia v. Randolph, 126 S.Ct. 1515, 1518 (2006). Appellant’s wife and child had moved out of the house, but several months later she and her child came back to the house, although the record does not reveal whether her motivation for return was reconciliation or retrieval of her possessions. One morning, after being at the house, appellant’s wife called the police and said that after a domestic dispute appellant had taken their son away. When officers arrived, appellant’s wife told them he was a cocaine user whose habit had created financial problems and had caused her to go stay with her parents for a while. Shortly after the police arrived, appellant returned, and said that he took the child to a neighbor’s because he was afraid his wife would take the child out of the country again. Appellant denied cocaine use and claimed it was his wife who used cocaine and alcohol. Appellant’s wife went with an officer to get the child, and when they returned to the house she renewed her complaints about the drug use and offered that there were “items of drug evidence in the house.” The officer asked for appellant’s consent to search the house, but was denied permission, whereupon he asked for and was granted consent to search from appellant’s wife. The Court held that the case invited the straightforward
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application of “the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” Dawson v. State, 868 S.W.2d 363, 365 (Tex.App.—Dallas 1993, pet. ref’d). Appellant was a dancer at a topless club. Officers, operating on a tip, requested the manager of the club to conduct a search of appellant’s locker, to which appellant consented. The manager found drugs in appellant’s purse. The trial court denied appellant’s motion to suppress. The appellate court reversed, holding that the search violated the Fourth Amendment. The search was not a valid private search because the club manager conducted the search at the request of the officers, thereby acting as their agent. The manager had no personal knowledge as to whether appellant had been informed at that particular club that the lockers used by the dancers were subject to search without notice. Therefore, the court found that appellant had a reasonable expectation of privacy regarding her locker because she had a lock on it and no one had joint access to the locker. Reynolds v. State, 781 S.W.2d 351, 352 (Tex.App.—Houston [1st Dist.] 1989, pet. ref’d). Appellant went out to dinner and left her children (ages 9 and 12) at home, instructing them not to admit anyone to the home and not to enter her bedroom or bathroom. Despite her mother’s instructions, the daughter entered the bathroom and found drugs in a box. She informed her brother, who called their father. The boy and his father “agreed” that they would call the police, which the father did at the son’s request. When the officer arrived, the children invited him in and showed him the drugs. The officer took the children to the police station and released them to their father. When appellant returned home and found her children missing, she called the police, at which time she was arrested. The court of appeals held that a 12 year old child does not have the authority to consent to the officer’s entry into and search of his mother’s private bedroom and bathroom, and that appellant had a reasonable expectation of privacy in her private bedroom and bathroom. Becknell v. State, 720 S.W.2d 526, 527 (Tex. Crim. App. 1986).
Appellant was
convicted of murder for the shooting of a college professor in whose class he was enrolled. A search of appellant’s padlocked bedroom in his parents house was an illegal search, because the father “did not exercise equal control over and equal use of the premises being searched.”
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Therefore, the seizure of a gun dealer’s business cards and records of appellant’s purchase of .25 and .38 caliber hand guns and ammunition was improper and the evidence inadmissible. 5 Moberg v. State, 810 S.W.2d 190, 191 (Tex. Crim. App. 1991). Appellant was convicted of sexual assault of a child after officers conducted as an inventory search a warrantless search of appellant’s hotel room after they had arrested appellant on an unrelated charge and transported him to the police station. The officers conducted an inventory search to secure appellant’s belongings and discovered 94 photographs of young girls. The inventory search was invalid because appellant had paid in advance for the motel room, and the period for which he had paid had not yet expired when the police conducted the search. Therefore, appellant had a reasonable expectation of privacy regarding the hotel room. The evidence also showed that the hotel would have taken custody of appellant’s abandoned belongings and retained them for six months, so it cannot be said that appellant’s belongings were safer in police custody. The record shows that the officers obtained a search warrant, but chose to rely on the doctrine of “inventory search.” The Court of Criminal Appeals held that the officers did not act “under any type of standardized criteria nor within the realm of a proper inventory search.” Therefore, the inventory search was improper, and the evidence thereby obtained inadmissible. May v. State, 780 S.W.2d 866, 867 (Tex.App.—Dallas 1989, pet. ref’d). Appellant was convicted of unlawful possession of a controlled substance, which was based on evidence obtained during an unlawful warrantless search of appellant’s residence, consented to by appellant’s estranged wife and stepdaughter. The court found that appellant’s estranged wife and stepdaughter no longer possessed the requisite control of appellant’s residence to properly consent to the warrantless search. 3. Unlawful Arrest Based on Informant Smith v. State, 58 S.W.3d 784, 787 (Tex.App.—Houston [14th Dist.] 2001, pet. ref’d). Narcotics officers arrested appellant based on information provided by an uncorroborated informant. At the time of appellant’s arrest, appellant was not engaged in any suspicious activity which would have lead officers to believe appellant was engaged in criminal activity. Appellant was pulled over, and he eventually consented to a search of his vehicle which led to the discovery of heroin. The officer’s decision to stop appellant was based solely on a conversation However, the court found the error to be harmless because the evidence “did not contribute to appellant’s conviction and the jury would have reached the same verdict of life imprisonment had not such evidence been admitted,” Becknell at 531, because the murder weapon was not admitted into evidence.
5
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with another officer, who provided information from an uncorroborated informant. Appellant’s detention was illegal because the officer lacked reasonable suspicion to stop appellant. 4. Unlawful Arrest Based Upon Anonymous Tip Florida v. J.L., 529 U.S. 266, 268 (2000). Police searched respondent after receiving an anonymous tip that “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Upon arriving at the bus stop, the officers observed three black males, one of whom (respondent) was wearing a plaid shirt. Aside from the anonymous tip, the officers had know reason to suspect any of the three black males of criminal behavior. The officers performed a Terry “stop and frisk” on appellant and discovered a gun in his pocket. The court held that an anonymous tip that a person is carrying a gun, without more, is insufficient to justify a stop and frisk of that person. Because the officers’ suspicion was based not on their own observations, but rather, on the anonymous tip, their search of respondent violated the Fourth Amendment.
5. Not an “Offense Within View” State v. Steelman, 16 S.W.3d 483, 485 (Tex.App.—Eastland 2000, pet. granted). Police arrested defendant without a warrant based on an uncorroborated anonymous tip that he was dealing drugs at home. The officers entered the Steelmans’ house without a warrant, and noticed the smell of burnt marihuana (doesn’t say freshly burnt or not).
The officers placed the
occupants under arrest, and sought consent from Leo Steelman to search the house.
Id.
Steelman refused to consent to the search. The officers remained in the house with defendant until a search warrant was obtained. Before the search warrant was obtained, the officers did not observe any marihuana in the house. The court held that the arrest was unlawful because the defendant did not possess marihuana in the officers’ presence and there was no smell of marihuana on the clothing. The search warrant obtained by the officers does not attenuate the illegal search, because the officers remained inside the residence while waiting for the warrant, and thus the illegal search never ended. Stull v. State, 772 S.W.2d 449, 450 (Tex. Crim. App. 1989).
An officer received
information from a known informant that a group of youngsters was meeting to exchange or use drugs. The officer set up surveillance at one of two areas indicated by the informant because he
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did not have first hand knowledge of the activities, and observed the kids passing around what he believed to be marihuana cigarettes. The next day, the officer did not find the kids at the first location and so proceeded to the second location, where he observed a group of kids and their cars. The officer did not observe any illegal activity. The officer called for backup, but felt compelled to move in on the kids when they noticed him and began to leave. When backup arrived, the officers searched the vehicles and discovered hashish. The court found that the warrantless arrest of appellant was unlawful because there was no corroboration between the officer’s observations at the first location on the first day and his personal observations (appellant did not commit an offense in view of the officer) at the second location on the second day. Green v. State, 594 S.W.2d 72 (Tex. Crim. App. 1980). Appellants were convicted of possession of heroin.
An officer stopped appellants for a traffic violation and noticed
ammunition in the glove compartment. He asked if appellants were carrying a gun. They produced the gun to the officer, who returned it to appellants after copying the serial number. The officer later learned the gun was stolen. The officer later noticed appellants car at a motel and checked the registration information to verify appellants identity, at which time he learned that appellants had provided false information. 6 The officer confirmed that the gun was an “active stolen” and returned to the motel accompanied by other officers. The officers gained entrance to appellants’ room with a pass key. The officers did not have a warrant. D. The officer observed plastic bags of heroin floating in the toilet. The officer testified he had entered the room to recover the stolen pistol, and that he arrested appellants for violating the “Innkeeper’s Ordinance,” which was not entered into evidence at trial. Because the ordinance was not properly proved, appellants did not commit an offense in the presence of the officers so as to justify a warrantless arrest. Villalobos v. State, 999 S.W.2d 132, 133 (Tex.App. – El Paso 1999, no pet.). Officers observed appellant park in a metered parking space, leave the car quickly without putting coins in the meter, speak to an unknown person at a known drug trafficking location, and return to his car. The officers then blocked appellant’s car in the parking space and ordered him out of the car. The officers seized a balloon containing heroin from the car. Because appellant was By giving false information when registering at the hotel, appellants allegedly violated an “Innkeeper’s Ordinance.”
6
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blocked in by the officers, he was placed under custodial arrest. However, the officers did not have probable cause to arrest appellant because he did not commit an offense in the officers’ presence. Failure to feed the parking meter is not a criminal offense.
Furthermore, no one
noticed whether the time on the meter had expired. Finally, the officers did not have probable cause to arrest appellant for possession of heroin because they did not observe a transaction between appellant and the unknown person. State v. Brown, 929 S.W.2d 588, 589 (Tex.App.—Corpus Christi 1996, pet. ref’d). Officers were summoned to a Sears store after receiving complaints regarding homosexual activity in the restroom; specifically, a customer complained about someone peering underneath his toilet stall partition. A small hole had been bored into the partition dividing two of the stalls. The officers were standing in the linen department when they noticed appellee leave the restroom.
One officer remarked that he was “going to the restroom” and proceeded to a stall
where the hole had been bored.
Appellee soon entered the adjacent stall and began to
masturbate. The officer exited the stall, identified himself as a police officer, and informed appellee that he was under arrest. The court found that appellee had the same expectation of privacy as an “innocent user” because there was no evidence that appellee had drilled the hole in the partition. The evidence had to be suppressed because the officer did not have probable cause or reasonable suspicion to search appellee’s stall. 6. Unreasonable/Illegal Detentions Gamble v. State, 8 S.W.3d 452 (Tex.App.—Houston [1st Dist.] 1999, no pet.). Appellant was convicted of possession of cocaine. Officers’ only basis for detaining appellant was that appellant was in an area with a reputation for drug sales, that the police had received frequent calls to the area for disturbances, that appellant was in the area at an early morning hour, and that appellant watched the police car pass by and then walked in a direction away form the police car. These facts do not give rise to reasonable suspicion to detain appellant, and therefore appellant was illegally detained. Gordon v. State, 4 S.W.3d 32, 34 (Tex.App.—El Paso 1999, no pet.). Officers received information that Gonzales, who had an outstanding warrant for his arrest, was located at an address in Midland. The officers obtained consent to enter the residence from the owner. Appellant was in the residence at the time officers entered. The officers found Gonzales in a bedroom and arrested him. After placing Gonzales in the patrol car, the officers discovered
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drugs and paraphernalia in the bedroom in which Gonzales had been located, and therefore decided to detain all the occupants and conduct a K-9 search. Because removal of the occupants is standard in such a search, an officer conducted a weapons pat-down of appellant, handcuffed him, and escorted him outside. Before placing appellant in the backseat of the patrol car, the officer lifted the seat to show appellant that nothing was present under the seat. After the search was completed and no narcotics were found, the officers decided to release appellant. They removed him from the car in order to remove the handcuffs, lifted the seat, and found one rock of crack cocaine. The court found that the detention of appellant became an illegal arrest without probable cause, and that appellant’s abandonment of the cocaine was involuntary due to the illegal arrest. Therefore the evidence should have been suppressed. Davis v. State, 61 S.W.3d 94, 96 (Tex.App.—Amarillo 2001, no pet.).
Officers
approached a group of people gathered in a backyard in a high crime neighborhood around midnight. As they approached, they observed appellant acting nervous.
The officer had dealt
with appellant before on domestic calls and asked appellant for his identification. The officer conducted a weapons pat down of appellant because appellant’s nervousness caused the officer to fear for his safety. The officer discovered a crack pipe which the officer considered probable cause to arrest appellant. The officer conducted a search incident to arrest and discovered cocaine. The arrest was unlawful because the officer did not observe any illegal activity, and merely being in a high crime neighborhood and acting nervous does not constitute reasonable suspicion to justify a search. Because the arrest was unlawful, the cocaine discovered during the search incident to arrest should have been suppressed. Gurrola v. State, 877 S.W.2d 300, 301 (Tex. Crim. App. 1994). An officer approached appellant and three others who appeared to be engaged in an argument in a parking lot. As the officer approached, appellant and the others began to leave. The officer instructed appellant and the others to return and place their hands on a parked car. The officer conducted a pat down of appellant, which revealed a hand gun. A further search revealed cocaine. The officer did not have reasonable suspicion to detain and search appellant. Merely engaging in an argument in a parking lot in the late afternoon and walking away from an officer does not amount to reasonable suspicion. Shelby v. State, 888 S.W.2d 231, 232 (Tex.App.—Houston [1st Dist.] 1994, pet. ref’d). Officers observed appellant and a juvenile known to the officers walking together down a road in
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the early morning. The officers stopped the patrol car and waited for appellant and the juvenile to come around the corner of a building. Only appellant walked around the corner of the building. The officers assumed that appellant and the juvenile split up upon seeing the patrol car, and the officers drove around the building to intercept the juvenile. The officers stopped the juvenile and conducted a pat down, discovering cocaine. The officers had observed appellant enter a convenience store and drove to the store to question appellant. The officers conducted a pat down of appellant because they feared for their safety and discovered three candy bars which appellant had stolen from the store. The officers arrested appellant, and a further search yielded crack cocaine. The fact that appellant and the juvenile were seen walking together in a high crime area in the early morning, that they separated upon sighting the patrol car, and that crack cocaine was found on the juvenile as a result of a valid search does not constitute reasonable suspicion to link appellant with the cocaine possessed by the juvenile. United States v. Rivas, 157 F.3d 364, 366 (5th Cir. 1998). Appellant was driving his tractor-trailer rig through the port of entry in Brownsville. He claimed he was going to San Antonio to buy used cars. At the border, customs agents drilled into the wall of the trailer and discovered cocaine. Customs agents set up surveillance on appellant, who drove to Dallas and met another person. Appellant parked his rig at a commercial building and left in a rental car. His companion left in another car. Customs agents arrested both men, obtained a search warrant, and discovered cocaine in the wall of the trailer. The court found that because the act of drilling into the wall of the trailer at the border was not a routine search, the Customs agents were required to have reasonable suspicion that criminal activity was taking place to validate the search.
The drug-detecting dog’s weak alert was not sufficient to constitute reasonable
suspicion. Therefore, under the fruit of the poisonous tree doctrine, all evidence resulting from the unlawful search at the border (including the consequential search in Dallas) must be suppressed. 7. Illegal Car Stops Comer v. State, 754 S.W.2d 656, 657 (Tex. Crim. App. 1986). Appellant Comer was subjected to an illegal stop by police. As a result of this illegal stop, appellant, who was a passenger in the vehicle, dropped a heroin-filled syringe onto the pavement and attempted to kick it under the vehicle as he exited the car. The court held that because appellant’s decision to
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abandon the contraband was a direct result of the illegal stop, the abandonment was involuntary and therefore did not remove the taint of the illegal stop. Ebarb v. State, 598 S.W.2d 842, 843 (Tex. Crim. App. 1980). Police officer stopped appellant based on information from an informant that appellant was carrying a handgun in her car. Appellant had a handgun on her front seat. At trial the officer could not remember the name of the informant, could not remember how many times he had received information from the informant, and could not remember whether any of the information from the informant had led to arrests. The court concluded that because the officer relied on an uncorroborated informant, the stop was illegal and the evidence should have been suppressed. State v. Simmang, 945 S.W.2d 219, 220 (Tex.App.—San Antonio 1997, no pet.). An officer received a call from dispatch about an anonymous tip that a white male was masturbating in a gold-colored four-door sedan in a parking lot. The officer arrived at the parking lot, followed by another officer. The officers proceeded to block Simmang’s car. The officer approached the car and saw Simmang sitting inside the car dressed with his clothing intact. The car window was rolled down and the officer could smell burnt marihuana. The officer ordered Simmang out of the car and frisked him for weapons. The officer found no weapons, but looking through an open car door, noticed a handgun on the floorboard. The officers arrested appellant and searched him, but found no weapons or drugs on his person. The officers found the handgun, ammunition, and marihuana in the vehicle. Because Simmang was detained based on the unsubstantiated suspicions of an anonymous caller, whose reliability was uncorroborated, and without articulable facts and circumstances to justify the stop, the evidence was the tainted fruit of an illegal stop and should have been suppressed. Richardson v. State, 39 S.W.3d 634, 636 (Tex.App.—Amarillo 2000, no pet.). Appellant was stopped for driving under the speed limit, and cocaine was found in his vehicle. The officer did not have reasonable suspicion to stop appellant because appellant was not impeding traffic (no cars were behind appellant waiting to pass), and appellant’s increase in speed was not indicative of an offense. United States v. Miller, 146 F.3d 274, 276 (5th Cir. 1998). Miller was stopped for driving his motor home through an intersection with the turn signal on but not turning or changing lanes. Miller consented to a search of his motor home that yielded marihuana (A LOT). The court held that because driving with a turn signal on without turning or changing
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lanes is not a violation of Texas law, therefore, the officer did not have probable cause to stop Miller. The evidence should have been suppressed because it was the tainted fruit of an illegal stop. Trahan v. State, 16 S.W.3d 146, 147 (Tex.App.—Beaumont 2000, no pet.). Trahan was stopped for failure to use his turn signal when exiting the freeway and was subsequently arrested and convicted of possession of a controlled substance. Evidence was not presented that Trahan had to change lanes in order to exit the freeway. Because signaling is mandatory only when changing lanes, turning, or starting from a parked position, the State failed to establish that Trahan had committed a traffic violation. Therefore, the stop was illegal and the evidence obtained was tainted fruit. Morrison v. State, 71 S.W.3d 821, 824 (Tex.App.—Corpus Christi 2002, no pet.). A police officer observed a car in which Morrison was a passenger stopped in the road. The officer observed the driver was not wearing her seatbelt. When the car drove off the officer stopped the car because it had blocked the road and because the driver was not wearing the seatbelt. As the officer approached the passenger side of the vehicle he observed Morrison drop something on the ground. The officer noticed an object on the ground which appeared to be a rock of crack cocaine. The officer requested that Morrison exit the vehicle, and the officer searched him, finding a crack pipe. The officer placed Morrison under arrest. The object field-tested positive for cocaine. The court found that the vehicle had not illegally blocked the road; therefore, basing the stop on blocking of the road was illegal. However, the officer’s alternative theory for the stop – that the driver was not wearing her seatbelt – was legally sound and gave the officer probable cause for the stop and subsequent arrest. Therefore, the motion to suppress was properly denied. State v. Exiga, 71 S.W.3d 429, 431 (Tex.App.—Corpus Christ 2002, no pet.). Exiga was stopped for his window tint and subsequently convicted of possession of marihuana. The court found that the statute pertaining to window tint did not apply to pre-1988 vehicles (Exiga’s was a 1985) and that the DPS did not have the authority to issue regulations regarding window tint on pre-1988 cars. Therefore, Exiga was subjected to an illegal stop, and the tainted evidence was properly suppressed. Bass v. State, 64 S.W.3d 646, 647 (Tex.App.—Texarkana 2002, pet. ref’d). Bass was convicted for possession of marihuana. An officer stopped Bass on the following two bases: 1)
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that Bass failed to drive in a single lane and 2) to determine whether Bass was driving while intoxicated. An officer must observe specific, objective, articulable facts that provide a basis that a driver is intoxicated or has committed a traffic violation. Because the officer did not present such articulable facts he did not have reasonable suspicion to stop Bass, and thus, the tainted evidence should have been suppressed. Ehrhart v. State, 9 S.W.3d 929, 930 (Tex.App.—Beaumont 2000, no pet.). Ehrhart was convicted of third degree felony possession of a controlled substance. The court found that the stop was not justified under the “community caretaking” exception because there was no evidence that Ehrhart required assistance. The evidence should have been suppressed because appellant consented to a search resulting from and illegal stop. See also, Villalobos v. State, 999 S.W.2d 132, 133 (Tex.App. – El Paso 1999, no pet.) supra. 8.
Fundamental warrant rules
King v. State, ___ S.W.3d ___, 2021 WL 4995217 (Tex. App. – Houston [1st Dist.] 2021) (only one search per warrant; Oklahoma warrant for search of truck had already been executed, and inventory prepared, and sent back to the Oklahoma court when an officer made a second search of the truck and seized the defendant’s cell phone. Cell phone and its contents (a number of child porn photographs) were deemed inadmissible).
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Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Significant Decisions:
United States Supreme Court and the Court of Criminal Appeals from September 2022 to April 2023
Speaker:
Hon. Jesse F. McClure III
Speaker:
Hon. David C. Newell
Speaker:
Hon. Bert Richardson
Judge, Place 6 Court of Criminal Appeals P.O. Box 12308 Austin, TX 78711 (512) 463-1570
Judge, Place 9 Court of Criminal Appeals
Judge, Place 3 Court of Criminal Appeals
Co-Author: Peyton Maddox
Briefing Attorney Court of Criminal Appeals
Co-Author: Tiffany Talamantez
Staff Attorney Court of Criminal Appeals
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
SIGNIFICANT DECISIONS UNITED STATES SUPREME COURT AND THE COURT OF CRIMINAL APPEALS FROM SEPTEMBER 2022 TO APRIL 2023
HON. DAVID C. NEWELL JUDGE, PLACE 9 Court of Criminal Appeals Paper prepared by Peyton Maddox Briefing Attorney and Tiffany Talamantez Staff Attorney
Court of Criminal Appeals P.O. Box 12308 Austin, TX 78744 (512) 463-1570
U.S. Supreme Court & Court of Criminal Appeals Update Aug. 2022 – April 2023
Acknowledgement This paper was largely drafted by my law clerk, Peyton Maddox, and my staff attorney, Tiffany Talamantez. Every year poor intrepid souls agree to come work for me after they graduate from law school only to be hit with having to summarize every published majority opinion from the Court of Criminal Appeals. And if that wasn’t bad enough, they also have to summarize every significant decision from the United States Supreme Court. And I can see it on their faces when I tell them. They hate me. Make no mistake. To Peyton’s credit, she’s done an admirable job befitting her stellar service in my employ. So, I hope you enjoy this gift of Peyton’s time and intellect. I would be remiss, however, if I did not mention the hard work of my staff attorney, Tiffany Talamantez. When Peyton was offered a dream job in March, Tiffany took over the summarization duty. On top of everything else she does for me. And I think she did a fine job, if I do say so myself. Which I apparently just did. As for my part, I have reviewed all the summaries, added nuances and details where necessary and some pretentious pontification (sometimes with alliteration) as commentary. And poor grammar. If you see it, that’s my fault. Don’t blame Peyton or Tiffany. They’ve had to deal with enough already. I do hope they get something out of it, though. Just as I hope that you all find something helpful in this paper.
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U.S. Supreme Court & Court of Criminal Appeals Update Aug. 2022 – April 2023
Table of Contents I.
INTRODUCTION ..............................................................................................................................................................1
II.
MOTIONS TO SUPRESS..................................................................................................................................................1 A.
INVESTIGATIVE DETENTIONS .................................................................................................................................................1 Consensual encounter escalated to investigative detention when officers physically touched an individual while telling him to show his hands.......................................................................................................................................................1 2. Briefly and safely driving on the dividing line between the center and right lane of traffic with a U-Haul’s right rear tire does not give rise to reasonable suspicion for a traffic stop without additional facts. ..............................................2 3. Warrantless seizure of methamphetamine off the ground in a public area either a) did not violate the Fourth Amendment or b) was the result of an illegal Terry pat-down that was later attenuated by the suspect’s resisting a search. ..............................................................................................................................................................................4 B. PROBABLE CAUSE – PARKING VEHICLE WITH THE ENGINE RUNNING IN A BUMPER-TO-BUMPER SCHOOL PICK-UP LINE OF VEHICLES PROVIDED PROBABLE CAUSE FOR WARRANTLESS ARREST...................................................................................... 5 C. SEARCH WARRANTS - ARTICLE 18.01(B) OF THE TEXAS CODE OF CRIMINAL PROCEDURE PERMITS ANTICIPATORY SEARCH WARRANTS............................................................................................................................................................................. 5 D. EXIGENT CIRCUMSTANCES - THE ABSENCE OF AFFIRMATIVE CONDUCT BY THE SUSPECT DOES NOT FORECLOSE AN EXIGENT 1.
CIRCUMSTANCES DETERMINATION BECAUSE IT IS ONLY ONE CIRCUMSTANCE IN THE TOTALITY OF THE CIRCUMSTANCES TEST THAT MAY SHOW POTENTIAL DESTRUCTION OF EVIDENCE WAS IMMINENT. ................................................................... 6
E.
FINDINGS OF FACTS – WAITING A YEAR TO CHALLENGE A TRIAL COURT’S FAILURE TO MAKE REQUESTED FINDINGS OF FACT FORFEITS ABILITY TO REQUIRE TRIAL COURT TO MAKE FINDINGS OF FACT AFTER A RULING ON A MOTION TO SUPPRESS. ...... 7
III. A.
TRIAL PROCEDURE .......................................................................................................................................................9
JURISDICTION AND AUTHORITY .............................................................................................................................................9 Attorney General still lacks authority to independently prosecute criminal cases in trial courts; Election Code § 273.021, which purported to grant the Attorney General the unilateral power to prosecute election-law violations, still violates the separation of powers clause. .........................................................................................................................9 2. Applicant was not estopped from challenging the jurisdiction of the trial court to revoke his community supervision despite accepting benefits under a plea agreement where Applicant lacked knowledge of material facts; trial court did not have jurisdiction to revoke Applicant’s community supervision after the period of time for community supervision allowed by statute had expired. ........................................................................................................................................9 B. PLEA BARGAINS .................................................................................................................................................................. 10 1. Texas Supreme Court’s “Seventeenth Emergency Order Regarding the COVID-19 State of Disaster” did not authorize a trial court to conduct a plea proceeding via videoconference despite the lack of a defendant’s written consent. ........................................................................................................................................................................... 10 2. Agreement to dismiss or not re-file a case was a not an immunity agreement due to absence of facts agreeing a grant of immunity in exchange information or testimony. ....................................................................................................... 11 C. WAIVER OF JURY TRIAL - THE RIGHT TO A TRIAL BY JURY IS A WAIVABLE-ONLY RIGHT, AND WAIVER WILL NOT BE INFERRED FROM A SPARSE RECORD. ..................................................................................................................................... 12 D. PRE-TRIAL DISCOVERY - A TRIAL COURT IN A CRIMINAL PROCEEDING DOES NOT HAVE AUTHORITY TO HOLD AN EX PARTE 1.
HEARING AND ENTER AN EX PARTE ORDER COMPELLING A THIRD PARTY TO PRODUCE DOCUMENTS WITHOUT NOTICE TO THE
E.
F.
PROSECUTOR REPRESENTING THE STATE. ............................................................................................................................ 13
COLLATERAL ESTOPPEL DID NOT PRECLUDE THE STATE FROM INDICTING A DEFENDANT FOR THE AGGRAVATED ASSAULT OF ONE VICTIM AFTER A JURY ACQUITTED HIM OF CAPITAL MURDER, MURDER, AND AGGRAVATED ROBBERY OF A DIFFERENT VICTIM OCCURRING DURING THE SAME SERIES OF EVENTS, BUT AT TWO SEPARATE LOCATIONS. ......................................... 14 SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL – VIRTUAL INCLUSION (VIA VIDEO FEED) OF A FAMILY MEMBER WHO HAD BEEN PHYSICALLY EXCLUDED FROM THE COURTROOM DURING THE TESTIMONY OF ONE WITNESS DID NOT INFRINGE ON VALUES SERVED BY SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL. ................................................................................... 15
IV.
EVIDENCE ....................................................................................................................................................................... 17
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U.S. Supreme Court & Court of Criminal Appeals Update Aug. 2022 – April 2023 A.
STIPULATIONS - THE STATE IS NOT REQUIRED TO ACCEPT A DEFENDANT’S STIPULATION OF EVIDENCE REGARDING AN
UNADJUDICATED EXTRANEOUS OFFENSE OFFERED FOR NON-CHARACTER CONFORMITY PURPOSES RATHER THAN INTRODUCE TESTIMONY REGARDING THE COMMISSION OF THAT OFFENSE. .......................................................................... 17
B.
OFFICER’S OPINION ON THE CREDIBILITY OF A CHILD VICTIM WAS INADMISSIBLE, BUT ULTIMATELY HARMLESS IN LIGHT OF REST OF THE RECORD. .......................................................................................................................................................... 18 EXPERT TESTIMONY REGARDING THE MEANING OF A SLANG PHRASE “PULL A CARLOS” USED IN A RECORDED JAIL PHONE CALL WAS ADMISSIBLE AND DID NOT IMPLICATE THE CONFRONTATION CLAUSE, BUT EVEN IF IT DID, THE ADMISSION WAS HARMLESS............................................................................................................................................................................ 19
C.
V.
OFFENSES ....................................................................................................................................................................... 19 A.
INJURY TO A CHILD – EVIDENCE WAS INSUFFICIENT TO ESTABLISH RECKLESS INJURY TO A CHILD BY ALLOWING BABY TO INGEST COCAINE THROUGH BREASTFEEDING EVEN THOUGH EVIDENCE ESTABLISHED THAT THE CHILD HAD ENOUGH COCAINE IN HER SYSTEM TO MAKE HER ADDICTED. ............................................................................................................. 19
B.
AGGRAVATED ASSAULT - EVIDENCE WAS SUFFICIENT TO SUPPORT THE JURY’S FINDING THAT THE VICTIM FACED A
SUBSTANTIAL RISK OF DEATH AS A RESULT OF HER INJURIES FROM TWO GUNSHOTS DESPITE NEITHER BULLET HITTING A VITAL ORGAN. ...................................................................................................................................................................... 20
C.
DECEPTIVE BUSINESS PRACTICES - TEXAS PENAL CODE § 32.42(B) DOES NOT REQUIRE JURY UNANIMITY ON THE SAME SPECIFIC ACT OF DECEPTION TO CONVICT BECAUSE THE MANNER AND MEANS IS NOT AN “ESSENTIAL ELEMENT” OF THE OFFENSE. .............................................................................................................................................................................. 21 UNLAWFUL POSSESSION OF A FIREARM BY A FELON - IF A FELON UNLAWFULLY POSSESSES TWO FIREARMS, HE HAS COMMITTED ONLY ONE OFFENSE UNDER THE STATUTE FOR UNLAWFUL POSSESSION OF A FIREARM. ................................... 23
D. VI.
JURY INSTRUCTIONS .................................................................................................................................................. 23
A.
DEFENSIVE INSTRUCTIONS................................................................................................................................................... 23 1. Defendant was not entitled to a concurrent causation charge where her omission caused serious bodily injury to her child, despite not being the person to injure the child. ................................................................................................... 23 2. Factual disputes were material for purposes of Article 38.23 instructions when the issues were affirmatively contested at trial by discrepancies between testimony and police officer dash camera footage. ................................................... 24 B. LESSER-INCLUDED INSTRUCTIONS ....................................................................................................................................... 25 1. Art. 37.08 of the Texas Code of Criminal Procedure instructs that a jury must be unanimous because “a conviction on a lesser included offense would necessarily be a verdict of acquittal on the greater offense, not simply a situation where the jury could not agree on the greater offense. .................................................................................................. 25 2. Lesser-included jury instructions for kidnapping and felony murder were not warranted in a capital murder trial where there was no affirmative evidence that raised the lesser-included offenses and rebutted or negated evidence establishing the greater offense. ..................................................................................................................................... 26 C. EGREGIOUS HARM - DEFENDANT WAS NOT EGREGIOUSLY HARMED BY THE TRIAL COURT’S FAILURE TO TAILOR THE DEFINITION OF “INTENTIONALLY” TO THE RESULT OF APPELLANT’S CONDUCT. .................................................................. 27 VII. SENTENCING ...................................................................................................................................................................... 27 A.
WHERE A FINE IS PART OF THE LAWFULLY-ASSESSED PUNISHMENT, IT MUST BE INCLUDED IN THE WRITTEN JUDGMENT, AND LACKS AUTHORITY TO DELETE SUCH PUNISHMENT ABSENT SOME ILLEGALITY. ............................................................................................................................................................................................ 27
A COURT
VIII. A.
APPEALS .......................................................................................................................................................................... 28
MANDAMUS ......................................................................................................................................................................... 28 The Court of Criminal Appeals will not entertain an application for mandamus relief unless the Relator has first sought relief from an intermediate court of appeals, absent a compelling reason. ........................................................ 28 2. Motion for leave to file writ of mandamus to prohibit a Texas citizen from being subpoenaed for a Georgia Special Purpose Grand Jury was moot after the subpoena date passed. .................................................................................... 29 B. MOTIONS FOR NEW TRIALS - WHEN THE TRIAL COURT GRANTS A MOTION FOR NEW TRIAL BASED ONLY ON THE BARE RECITATION THAT “THE VERDICT IS CONTRARY TO THE LAW AND EVIDENCE,” THE ACCUSED MAY NOT BE TRIED AGAIN FOR THE SAME OFFENSE WITHOUT VIOLATING PRINCIPLES OF DOUBLE JEOPARDY. ..................................................................... 29 1.
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U.S. Supreme Court & Court of Criminal Appeals Update Aug. 2022 – April 2023 C. D.
IX. A. B.
APPELLANT WAS JUDICIALLY ESTOPPED FROM COMPLAINING ABOUT JURY CHARGE ERROR ON APPEAL WHERE TRIAL COUNSEL ACQUIESCED AND AGREED TO THE CHARGE DURING THE CHARGE CONFERENCE. ................................................. 30 DELETION OF AN ILLEGAL CUMULATION ORDER WAS PROPER RELIEF WHERE BOTH TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE IN FAILING TO OBJECT AND FAILING TO RAISE THE ILLEGAL CUMULATION ORDER ON APPEAL, RESPECTIVELY. .. ............................................................................................................................................................................................ 31 INEFFECTIVE ASSISTANCE OF COUNSEL ............................................................................................................ 32 COUNSEL’S FAILURE TO OBJECT TO THE STATE ADDING NEW OFFENSES TO AN INDICTMENT WITHOUT TAKING THE NEW COUNTS TO THE GRAND JURY AMOUNTS TO INEFFECTIVE ASSISTANCE OF COUNSEL. ........................................................... 32 ALLOWING THE ADMISSION OF EVIDENCE RELATING TO DEFENDANT’S REFUSAL TO ANSWER A QUESTION DURING A NONCUSTODIAL POLICE INTERVIEW DID NOT AMOUNT TO INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE LAW WAS
C.
X.
UNCLEAR AT THE TIME OF THE TRIAL. .................................................................................................................................. 32
COUNSEL COULD NOT BE FOUND INEFFECTIVE FOR REJECTING A SUDDEN PASSION JURY INSTRUCTION WHERE THE RECORD ON DIRECT APPEAL WAS SILENT AS TO COUNSEL’S EXPLANATION FOR HIS ACTIONS, WHICH COULD HAVE INCLUDED A PLAUSIBLE STRATEGIC REASON............................................................................................................................................ 34 HABEAS CORPUS .......................................................................................................................................................... 35
A.
B. C. D.
E.
F.
XI. A.
B.
A DEFENDANT WHO IS CONVICTED OF MULTIPLE CHARGES OF INDECENCY WITH A CHILD BY EXPOSURE IN THE SAME PROCEEDING HAS RECEIVED ONE REPORTABLE CONVICTION OR ADJUDICATION “BEFORE OR AFTER” ANOTHER UNDER ARTICLE 62.101(A)(4) OF THE CODE OF CRIMINAL PROCEDURE AND IS THUS REQUIRED TO REGISTER AS A SEX OFFENDER FOR LIFE. .............................................................................................................................................................................. 35 HABEAS APPLICANT WAS ABLE TO SATISFY SECOND COTY PRONG AND SHOW STATE ACTOR COMMITTED MULTIPLE INSTANCES OF INTENTIONAL MISCONDUCT. ......................................................................................................................... 36 HABEAS APPLICANT WAS NOT ENTITLED TO RELIEF FOR INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS CLAIMS LACKED MERIT OR WERE NOT PROPERLY PRESERVED........................................................................................................... 36 IF A DEFENDANT FILES HIS APPLICATION FOR POST-CONVICTION HABEAS CORPUS RELIEF ALLEGING THAT HE IS PHYSICALLY CONFINED PURSUANT TO HIS CONVICTION, HE NEED NOT FURTHER ALLEGE COLLATERAL CONSEQUENCES THAT FLOW FROM HIS CONVICTION. .................................................................................................................................................................. 37 POST-CONVICTION DNA TESTING - APPELLANT DID NOT SATISFY HIS TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 64.04 BURDEN BECAUSE HE DID NOT SHOW THAT IT WAS REASONABLY PROBABLE THAT HE WOULD NOT HAVE BEEN CONVICTED HAD CERTAIN TEST RESULTS BEEN AVAILABLE DURING HIS CAPITAL MURDER TRIAL. ...................................... 37 FEDERAL HABEAS - UNITED STATES SUPREME COURT OPINION REVERSING ARIZONA SUPREME COURT PRECEDENT WAS A SIGNIFICANT CHANGE ARIZONA LAW REGARDING POST-CONVICTION RELIEF; ARIZONA SUPREME COURT HOLDING OTHERWISE WAS SUCH A NOVEL AND UNFORESEEABLE INTERPRETATION SO AS NOT TO FORECLOSE FEDERAL REVIEW. ..... 38 FIRST AMENDMENT CASES ...................................................................................................................................... 39 CASE INVOLVING HARASSMENT VIA ELECTRONIC COMMUNICATIONS UNDER TEXAS PENAL CODE § 42.07(A)(7) IS TO BE
CONSIDERED BY COURT OF APPEALS WITH GUIDANCE FROM THE COURT’S RECENT OPINIONS IN EX PARTE BARTON AND EX PARTE SANDERS. ................................................................................................................................................................... 39
CASE INVOLVING HARASSMENT VIA ELECTRONIC COMMUNICATIONS UNDER TEXAS PENAL CODE § 42.07(A)(7) IS TO BE
CONSIDERED BY COURT OF APPEALS WITH GUIDANCE FROM THE COURT’S RECENT OPINIONS IN EX PARTE BARTON AND EX PARTE SANDERS. ................................................................................................................................................................... 39
XII. § 1983 AND OTHER FEDERAL SUITS ............................................................................................................................. 40 A.
THE STATUTE OF LIMITATIONS ON A § 1983 PROCEDURAL DUE PROCESS CLAIM BEGINS TO RUN WHEN STATE LITIGATION
ENDS, WHICH IN THIS CASE WAS WHEN THE TEXAS COURT OF CRIMINAL APPEALS DENIED MOTION FOR REHEARING FOLLOWING APPEAL FROM THE TRIAL COURT’S DENIAL OF MOTION FOR DNA TESTING. ..................................................... 40
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U.S. Supreme Court & Court of Criminal Appeals Update Aug. 2022 – April 2023
SCOTUS/CCA Update
person and neither is Nichole. Nevertheless, if you want a copy of our PDF version of the paper so you can see if that does work, you can reach out to us and we will send our master PDF copy to you. I know, master PDF sounds so serious. I just mean the original PDF we send out to be included in CLE material. It’s not that serious. In any event, I wish you way more than luck.
Significant Decisions from August 2022 to March 2023 I.
INTRODUCTION
This paper covers the published opinions issued by the Court of Criminal Appeals between August 1, 2022, and April 30, 2023. It also includes the significant criminal cases from the United States Supreme Court that have broad applicability, issued between October 1, 2022 and April 30, 2023. If you feel that a particular case was overlooked, please email me through Nichole Reedy at nichole.reedy@txcourts.gov and we’ll do our best to accommodate you. More importantly, we update the paper throughout the year, so don’t lose that email if you would like a copy of the most updated paper. But you will have to wait until July 2023 for that.
II. MOTIONS TO SUPRESS A. Investigative Detentions 1. Consensual encounter escalated to investigative detention when officers physically touched an individual while telling him to show his hands. Tairon Jose Monjaras Monjaras was walking around an apartment complex when police officers saw Monjaras and believed it was “not normal” that Monjaras was carrying a backpack and that Monjaras was “overdressed for the weather.” The officers announced in their body-worn camera recording that they were beginning a consensual encounter “to see where [Monjaras] was going, or what was going on.” The officers got out of the police vehicle and began speaking with Monjaras. Both officers had their service pistols visible but holstered. They asked him for basic information including his name, where he lived, and if he had identification. Monjaras appeared to understand the questions but replied in broken English. One officer asked Monjaras if he had anything illegal on him. Monjaras shook his head no but began emptying his pockets. One officer then said, “Hold on, hold on, hold on. May I search you?” while placing his hand on Monjaras’s arm. Monjaras reached into his pocket again while the other officer put his hand around Monjaras’s elbow and said, “It’s a question. Hold on. Talk to me.” Monjaras continued to remove items from his pocket and said, “But I-I-I know. You said—you said you wanted to search me.” With his hand on Monjaras’s back, the officer responded, “No, no, no, you’re not understanding what I’m saying. The second officer then took two steps forward, extended both hands outwards with his palms facedown and instructed Monjaras “manos, manos.”
Oh, and one more thing. I tried little something new last year and it seems to have been well received. At least, I haven’t had any complaints. As with last year, if it doesn’t work, then you aren’t in any different position than you were reading a regular version of the paper so don’t worry. But I have included hyperlinks to the related opinions online. So, if you click on a case citation in this paper, hopefully, Google Chrome will pull up a link to the related opinions. Cases from the CCA and SCOTX have separate PDF files for majority and side opinions, so for those summaries I have tried to incorporate separate hyperlinks for corresponding opinions. United States Supreme Court opinions consist of only one file that has all opinions on it so there was no way for me to separate them out. For those cases you just get one hyperlink if you are interested. Of course, I can’t guarantee that the version of the paper you receive at whatever CLE you choose to attend will have working functionality on this point. So, if you get a copy of this paper and it looks like there’s a hyperlink, but it doesn’t work when you click it, I’m sorry. I do not take any responsibility for link rot.
The first officer then, more insistently, repeated, “May I search you? May I go into your pockets and search you?” Neither officer informed Monjaras that he did not have to consent. After pausing, Monjaras
Of course, my sorrow does not translate into a license to email me or Nichole to ask how to make it work. I’m not volunteering to be your personal IT 1
U.S. Supreme Court & Court of Criminal Appeals Update Aug. 2022 – April 2023
Presiding Judge Keller dissented without an opinion along with Judges Hervey, Keel, and Slaughter.
responded, “Yeah.” The officer then instructed, “Okay, slide your hands on the car for me, please.” Upon searching Monjaras, the officers found a pistol under Monjaras’s groin.
[Commentary: This is an exceedingly close and factbound case. Beware of trying to broaden this holding beyond the facts of this case. Note as well, that all the Court determined in this case is whether an investigative detention occurred. The case was remanded back for the court of appeals to determine whether that detention was based upon reasonable suspicion.]
Monjaras pleaded guilty to unlawful possession of a firearm by a felon after the trial court denied his motion to suppress evidence where he argued that his interaction with law enforcement was an investigative detention without reasonable suspicion rather than a consensual encounter. On appeal, Monjaras argued that the trial court erred in denying his motion to suppress. The court of appeals affirmed the trial court and found that the interaction was a consensual encounter.
2. Briefly and safely driving on the dividing line between the center and right lane of traffic with a U-Haul’s right rear tire does not give rise to reasonable suspicion for a traffic stop without additional facts. Late at night, Sheila Jo Hardin drove her rented U-Haul truck on the highway. A police officer saw her U-Haul and followed her because he had received a “Be on the Lookout” (BOLO) regarding a U-Haul that was suspected of being involved in multiple burglaries drove in the middle lane of a threelane highway with no other cars around her. As the officer followed Hardin, she did not drive erratically, speed, or come close to hitting anything with the UHaul. When he saw the right rear tire of the U-Haul touch and drive on the striped line marking the right side of the center lane he stopped her for committing the offense of “failing to maintain a single marked lane of traffic.” Nothing in the record showed that Hardin’s driving behavior was unsafe. The officer listed in his offense report that he did not stop her based upon the BOLO. Based upon evidence collected pursuant to a search of Hardin’s vehicle after the traffic stop, the State charged Hardin with fraudulent possession of identifying information and forgery of a government instrument. The trial court granted Hardin’s motion to suppress evidence obtained after the warrantless traffic stop. The trial court held that the stop was not justified by the BOLO alert, which the State did not challenge. The State appealed, however, on the issue of whether Hardin’s conduct amounted to a violation of the offense of “failure to maintain a single marked lane” even though Hardin’s driving was not shown to be unsafe. The court of appeals affirmed.
The Court of Criminal Appeals reversed. Monjaras v. State, --- S.W.3d ---, 2022 WL 17170923 (Tex. Crim. App. Nov. 23, 2022) (5:0:4). Writing for the Court, Judge Walker explained that an encounter is consensual only if the citizen is free to leave and terminate the interaction at any time. The Court agreed with the court of appeals that Monjaras’s initial interaction with the officers was a consensual encounter. The Court noted that the two officers approached Monjaras around midday in a public location using a tone that was not overtly hostile. Besides a brief handshake, the officers did not initially touch or speak to him in a way indicating that compliance was required. However, the Court disagreed with the court of appeals’s conclusion that the encounter did not escalate to an investigative detention. The Court stated that the court of appeals undertook “a piecemeal or ‘divide and conquer’ approach” instead of viewing the totality of the circumstances. Further, the court of appeals focused on the initial encounter and the subjective intent of the officers rather than the perspective of an objectively reasonable person in the same circumstances. The Court concluded that when the officer moved closer to Monjaras with his hands extended and said “manos, manos” while the other officer had his hand on Monjaras’s body, a reasonable person in his shoes would no longer feel free to disregard the officers’ requests in light of the officers’ show of authority.
The Court of Criminal Appeals affirmed. State v. Hardin, --- S.W.3d ---, 2022 WL 16635303 (Tex. 2
U.S. Supreme Court & Court of Criminal Appeals Update Aug. 2022 – April 2023
Crim. App. Nov. 2, 2022) (5:1:3). Writing for the Court, Judge Newell analyzed Texas Transportation Code Section 545.060(a), titled “Driving on Roadway Laned for Traffic,” and explained that a motorist does not commit an offense any time a tire touches or crosses a clearly marked lane. Rather, it is only when the failure to stay “as nearly as practical” entirely with a single lane becomes unsafe that a motorist violates the statute. The Court reasoned that Subsection (a)(1) does not actually require a motorist to stay entirely within a single lane; it only requires that a motorist remain entirely within a single marked lane “as nearly as practical.” Thus, he or she must “almost, but not quite” stay within a lane. On the other hand, subsection (a)(2), prohibits any movement from the lane unless that movement can be made safely. The Court explained that the legislature intended these two subsections to be read together. This is evidenced by the legislature’s use of the word “and” joining the two subsections and suggesting that a driver must both drive in a single marked lane as nearly as practical and not move from that lane unless it can be done safely. Additionally, subsection (a)(1) refers to “a single lane” while subsection (a)(2) refers to “the lane.” This clarifies that the legislature envisioned a driver driving within the single lane in subsection (a)(1) and potentially committing an offense when unsafely moving outside of it. Thus, both (a)(1) and (a)(2) are dependent upon each other. To read the statute as two separate requirements would be to overlook the interconnectedness of each subsection and would also risk rendering subsection (a)(1) unconstitutionally vague.
the one at issue that characterizes the same conduct as both the failure to perform a required act and the performance of a prohibited act. Judge Slaughter filed a concurring opinion. Judge Slaughter wrote separately to observe how she believes this to be a classic case of reasonable mistake of law by the officer who pulled Hardin over. Judge Slaughter however acknowledged that the State did not raise the mistake-of-law issue in the trial court, thus leaving the Court with no basis to reverse. Presiding Judge Keller filed a dissenting opinion joined by Judges Yeary and Keel. Presiding Judge Keller would hold that because subsections (1) and (2) are connected by an “and,” a driver is required to follow both subsections. In her view, failure to comply with either one of the subsections constitutes a failure to comply with the statute, and thus a driver must drive as nearly as practical entirely within a single lane, even if it would be safe not to do so. Judge Yeary filed a dissenting opinion joined by Presiding Judge Keller and Judge Keel. In his view, a plain reading of these statutes together makes clear that a person commits an offense by violating either the requirement that the person (a)(1) drive as nearly as practical entirely within a single lane, or the prohibition that they (a)(2) not move from the lane when that movement cannot be made safely. [Commentary: Before the Court decided Leming v. State, the well-accepted construction of the failure to maintain a single marked lane statute was found in a court of appeals opinion in Hernandez v. State, 983 S.W.2d 867 (Tex. App.---Austin 1998,, pet. ref’d.). Under that opinion and in the most general terms, police could not stop a motorist who drifts over a dividing line on a roadway with multiple lanes for a traffic offense unless the officer could articulate how that driving was unsafe. If there was nothing unsafe about the driving (because, say for example, there were no other cars on the road) the officer could not conduct a traffic stop for the traffic offense of failure to maintain a single marked lane. However, the officer might have to be able to conduct a traffic stop for a different offense if he or she could provide other articulable facts to suggest the conduct was connected to that other offense. So, for example, the officer
The Court also clearly rejected the analysis of the statute supported by four judges in the Court of Criminal Appeals case Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016). Under the reasoning in that portion of Leming, the only offense in the Transportation Code is found in section 542.301, which states that a person commits an offense if he or she commits an act that is prohibited or fails to perform an act required by the code. The Court explained that this statute is better understood as stating the general requirement that an offense under the Transportation Code must involve either an act or a failure to act. It does not purport to set out any elements of any offense, and does not clarify how to construe a statute such as 3
U.S. Supreme Court & Court of Criminal Appeals Update Aug. 2022 – April 2023
evading did not constitute intervening circumstances. Massey v. State, 649 S.W.3d 500 (Tex. App. – Fort Worth 2022) (pet. granted). The court of appeals also rejected the State’s argument that the seizure of the methamphetamine did not violate the Fourth Amendment because it was discovered in plain view.
might articulate how the continued weaving suggested the driver was intoxicated, and that might justify the stop. Four judges in Leming were not persuaded by Hernandez and interpreted (in a non-precedential portion of the opinion) the failure-to-maintain-a-singlemarked-lane statute contrary to Hernandez. Under their interpretation, police could stop a motorist if he or she was crossing the dividing line in an unsafe manner or if the motorist crossed the dividing line in any way at all. In this case, the Court rejected the position taken by those four judges in Leming. Note, however, that the holding in this case doesn’t mean that police will NEVER be able to stop a motorist whose right or left tire touches or crosses the dividing line on a multilaned roadway. The Court specifically says as much and notes that it’s possible that similar behavior might give rise to reasonable suspicion to stop for some other traffic violation or even DWI. Further, Judge Slaughter’s concurring opinion notes that the State could have relied upon Heien v. North Carolina, 574 U.S. 54 (2014) for the proposition that an officer who made a stop during the period between Leming and Hardin could have been reasonably mistaken about the construction of the failure-to-maintain-a-singlemarked-lane statute. The State did not do that in this case because it wanted a specific answer regarding how to interpret that statute. Well, they got it.]
The Court of Criminal Appeals reversed. Massey v. State, --- S.W.3d ---, 2023 WL 3083159 (Tex. Crim. App. Apr. 26, 2023) (4:4:2). Writing for a plurality, Judge Yeary focused on the attenuation-oftaint doctrine and the factors laid out by the Supreme Court including (1) the temporal proximity between the misconduct and discovery of the evidence; (2) the presence of any intervening circumstances; and (3) the purpose and flagrancy of the police misconduct. See Brown v. Illinois, 422 U.S. 590, 603-04 (1975). Judge Yeary explained that all three factors are relevant when considering whether evidence of a different offense, possession of a controlled substance, should be suppressed in light of the intervening new offenses of resisting and evading. He disagreed with the lower court that Massey’s conduct could not be an intervening circumstance because it was a minor reaction to the officer’s misconduct. Ultimately, while temporal proximity favored suppression, the new offenses shifted the focus to the third factor and the Court concluded that the officer’s conduct was not flagrant misconduct. The Court thus reversed the court of appeals and affirmed the trial court. He was joined by Judges Keel and Slaughter, as well as Presiding Judge Keller.
3. Warrantless seizure of methamphetamine off the ground in a public area either a) did not violate the Fourth Amendment or b) was the result of an illegal Terry pat-down that was later attenuated by the suspect’s resisting a search. James Massey did not have a proper registration sticker on his truck and an officer detained him in a convenient store parking lot and conducted an investigative pat-down of his person. Massey resisted the search and eventually the officer tased and handcuffed him. After the struggle, the officer discovered a bag of methamphetamine on the ground in public view next to an air pump. On the body cam video, Massey stated “that’s not mine” in reference to the drugs on the ground. The trial court denied Massey’s motion to suppress concluding that the pat-down search was illegal but that the taint was attenuated by Massey’s resisting and evading detention. The court of appeals disagreed concluding that Massey’s resisting and
Judge Newell filed a concurring opinion joined by Judges Hervey, Richardson, and Slaughter. According to Judge Newell, the warrantless seizure of the methamphetamine did not violate the Fourth Amendment. Instead, the warrantless seizure was reasonable under the plain view doctrine regardless of any taint from the illegal pat-down. Because Massey had no expectation of privacy in the public area where the methamphetamine was found and the officer had the lawful ability to be in the place where they were found, the plain view doctrine justified the seizure. Note Massey himself declared the methamphetamine did not belong to him. Judges Walker and McClure dissented without opinion. 4
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Austin 2009, pet. denied), which was relied upon by the trial court was distinguishable and its reasoning had not been adopted by the Court of Criminal Appeals. In Allocca, the Third Court of Appeals held that evidence of operation was insufficient where a driver was found asleep with the engine running without an additional factor indicating the driver attempted or intended to drive the vehicle. But unlike in Allocca, Espinosa had no explanation for why she was asleep in her vehicle in the middle of the day in a moving line of traffic. Ultimately, the Court concluded the officer had probable cause to arrest Espinosa for DWI.
[Commentary: How does this case stack up with Monjaras v. State, --- S.W.3d ---, 2022 WL 17170923 (Tex. Crim. App. Nov. 23, 2022) (5:0:4), discussed above? Was this resisting a search or revoking consent to search? Put another way, if the defendant has the right to limit the scope of his consent to search, can behavior limiting the scope of the consent to search constitute reasonable suspicion to search? Does the plain view approach avoid this conundrum?] B. Probable Cause – Parking vehicle with the engine running in a bumper-to-bumper school pickup line of vehicles provided probable cause for warrantless arrest. Jennifer Espinosa was found asleep at the wheel of the parked vehicle, and it was later determined that she was intoxicated. She denied drinking alcohol and told the investigating officer that she was headed to work and coming from either her parent’s home or home. Before trial, she filed a motion to suppress, which the trial court granted concluding the evidence was insufficient to show that Espinosa operated the vehicle or was intoxicated when she was driving. The court of appeals affirmed the trial court’s ruling based on the lack of evidence linking Espinosa’s alleged intoxication and operation of her vehicle. Justice Jewell dissented disagreed with the conclusion that the evidence of a temporal link between the evidence of intoxication and driving was insufficient.
C. Search Warrants - Article 18.01(b) of the Texas Code of Criminal Procedure permits anticipatory search warrants. Silas Parker was charged with possession with intent to deliver four hundred grams or more of a controlled substance, namely, psilocybin. Police officers obtained a warrant to seize packages addressed to Parker and search Parker’s home on the day the packages would be delivered. Police obtained the search warrant when law enforcement, acting on a tip, intercepted packages addressed to Parker which were filled with psilocybin mushrooms. In the affidavit, the officer set forth the above facts and stated that there was, at that location, a quantity of psilocybin. The affidavit also stated that there was evidence of a crime at the location, including writings, photos, currency, weapons, and more. The officer sought permission to search the premises “on or around the expected delivery date of June 9, 2017, after Parker has been able to confirm parcel delivery to said suspected place and premises.” Parker filed a motion to suppress all evidence seized from the search of his home. Parker alleged, among other things, that the search of the house was illegal because Article 18.01 of Code of Criminal Procedure requires the State to present sufficient facts to the magistrate that “probable cause does in fact exist” for issuance. According to Parker, an anticipatory warrant cannot satisfy this requirement because the probable cause does not exist at the time of the issuance of the warrant.
The Court of Criminal Appeals unanimously reversed finding the arrest was supported by probable cause. State v. Espinosa, --- S.W.3d ---, 2023 WL 2903688 (Tex. Crim. App. Apr. 12, 2023) (9:0:0). Writing for the Court, Judge Hervey’s focused on the placement of Espinosa’s vehicle in a line of vehicles, which had recently begun to form for school pick-up. The Court noted the vehicles in front of Espinosa in the line would have had to drive past her and reverse into their position to believe she would have driven to the school at any time before school pick up. Taken in this context, Espinosa’s statements about where was coming from and going could be interpreted as admissions and she had no explanation for why she was asleep at the wheel. The Court thus concluded that a probable-cause determination based on commonsense supported the arrest.
The trial court denied the motion to suppress the evidence collected pursuant to the anticipatory warrant. On appeal, Parker challenged the denial of his pretrial motion to suppress. The Third Court of Appeals held the trial court properly denied Parker’s motion to
Further, Judge Hervey explained that Tex. Dep’t of Public Safety v. Allocca, 301 S.W.2d 364 (Tex. App. – 5
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destruction of evidence was imminent. Jerel Chinedu Igboji was charged with aggravated robbery. Igboji
suppress all evidence from the search of the because the magistrate had probable cause to issue the warrant.
worked at a Kentucky Fried Chicken. Shortly after the restaurant closed one night, two armed men entered the restaurant through an unsecured backdoor and took money. During the investigation, another employee told an officer that Igboji had posted several videos that captured the initial police response to the robbery on Snapchat. The employee showed the officer the videos, but the officer did not obtain a copy from the employee. Instead, the officer met with Igboji three days later and asked Igboji to show him the videos. Igboji explained that Snapchat videos delete after 24 hours. After Igboji refused consent to search the phone, the officer seized the phone without a warrant. The officer did not apply for a search warrant until two days later, and the warrant was not executed until two days after that. The search of the phone pursuant to the search warrant revealed text messages that incriminated Igboji. It is unclear whether the Snapchat video was obtained during the search. The trial court denied Igboji’s motion to suppress.
The Court of Criminal Appeals affirmed. Parker v. State, --- S.W.3d ---, 2022 WL 2963533 (Tex. Crim. App. July 27, 2022) (8:1:0). Writing for the Court, Judge McClure explained that based on a plain reading of Article 18.01 of the Texas Code of Criminal Procedure, there is no present possession requirement, and probable cause did exist when the magistrate issued the warrant. Relying on United States v. Grubbs, 547 U.S. 90 (2006), the Court noted that “all warrants are, in a sense, ‘anticipatory’” because “where the police seek permission to search a house for an item they believe is already located there, the magistrate’s determination that there is probable cause for the search amounts to a prediction that the item will still be there when the warrant is executed.” Further, unlike in other articles of the Code of Criminal Procedure such as Article 18.01(c)(3) (which applies to “mere evidentiary” warrants), there is no specific language in Article 18.01 requiring that the items sought be at the location when the affidavit is submitted. The statutory language only requires that the affidavit establishes sufficient facts to support the requested search. Ultimately, the Court held that the evidence submitted to the magistrate supported the probable cause determination.
On appeal, Igboji argued that the trial court erred by denying his motion to suppress evidence obtained following the warrantless seizure of his cell phone. The court of appeals agreed, concluding that the warrantless seizure of Igboji’s phone did not fall within the exigentcircumstances exception. In reaching this conclusion, the court of appeals cited Turrubiate v. State, 399 S.W.3d 147 (Tex. Crim. App. 2013) for the proposition that the exigent-circumstances exception to the warrant requirement requires “proof of imminent destruction based on affirmative conduct.”
Judge Yeary filed a concurring opinion. Judge Yeary disagreed with the Court construing Article 18.01(c) to prohibit “anticipatory” evidentiary search warrants because he found the construction “questionable and, in any event, utterly unnecessary.” [Commentary: With eight judges joining the opinion, Judge Yeary’s vote was unnecessary to the ultimate determination. It remains to be seen whether, whether police can rely on an anticipatory “evidentiary” search warrant. However, the Court’s holding seems to suggest that they shouldn’t as no one joined Judge Yeary’s concurrence. But then again, maybe that part of the opinion wasn’t necessary to the disposition.]
The Court of Criminal Appeals reversed and remanded for a proper exigent-circumstances analysis. Igboji v. State, --- S.W.3d ---, 2023 WL 2396388 (Tex. Crim. App. Mar. 8, 2023) (6:0:3). Writing for the Court, Judge Newell concluded that affirmative conduct by the suspect is not required, but it is one circumstance in the totality-
D. Exigent Circumstances - The absence of affirmative conduct by the suspect does not foreclose an exigent circumstances determination because it is only one circumstance in the totality of the circumstances test that may show potential 6
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of-the-circumstances test that may show the potential destruction of evidence was imminent. However, the absence of such affirmative conduct does not foreclose an exigent-circumstances determination. Judge Newell explained that under the exigent-circumstances exception, law enforcement may be justified in conducting a warrantless search to prevent the imminent destruction of evidence. Whether law enforcement faced an emergency that justified acting without a warrant calls for a case-by-case determination based on the totality of the circumstances.
his phone without consent) can be a fact that establishes exigency. We’ll have to wait and see if this is the end of the case.]
E. Findings of Facts – Waiting a year to challenge a trial court’s failure to make requested findings of fact forfeits ability to require trial court to make findings of fact after a ruling on a motion to suppress. Ronald Lee Haskell filed a motion to suppress in his capital murder death case. The trial court denied the motion and he requested that the trial court make findings of fact and conclusions of law. The trial court never did, and Haskell was sentenced in October 2019. This was two months past the date that they would have been due if the trial court had adhered to deadline of twenty days in Rule 297 of the Rules of Civil Procedure. Trial counsel failed to follow up on his request with the trial judge even after being notified that the judge who presided over the suppression hearing would leave the bench at the end of 2020. Appellate counsel finally sought to secure findings after the judge had left office. The Court of Criminal Appeals initially granted Haskell’s motion to remand for findings.
Judge Newell explained that the court of appeals read too much into the holding in Turrubiate. While affirmative conduct is one way to show exigency, it is not the only way that a record may show that evidence was in danger of being imminently destroyed. To the extent that Turrubiate required affirmative conduct, the Court disavowed it. Further, the court of appeals seemingly announced a categorical rule that police may never seize personal property simply because a criminal suspect knows he is a suspect. Instead, the court of appeals should have analyzed under the totality of the circumstances whether law enforcement’s seizure of Igboji’s phone was the type of reasonable seizure necessary to maintain the status quo to provide law enforcement with time to secure a search warrant.
In a per curiam order, the Court of Criminal Appeals granted the state’s motion for reconsideration and withdrew the Court’s prior remand order. Haskell v. State, --- S.W.3d ---, 2022 WL 3640548 (Tex. Crim. App. Aug. 24, 2022) (7:1:0). Judge Curiam explained that Haskell was entitled to findings (pursuant to the Court’s decision in Cullen v. State, 195 S.W.3d 696 (Tex. Crim. App. 2006)) when the trial judge agreed to issue findings after ruling against Haskell on the motion. When the trial court agreed to issue findings on the order at Haskell’s request, it was incumbent upon him to seek enforcement of that ruling under ordinary principles of procedural default. In Cullen, the Court had relied upon Rule 297 of the Rules of Civil Procedure to fashion a court-made requirement that a trial court enter findings and conclusions for the losing party after ruling on a motion to suppress. The Court noted in Cullen that this civil rule also included a twenty-day deadline for the trial court to enter the findings. Assuming that this deadline would apply, the findings were past due after twenty days, and the favorable ruling was not being enforced. At that point, Haskell had an obligation under
Judge Yeary filed a dissenting opinion in which Presiding Judge Keller and Judge Keel joined. In his view, the facts of the case demonstrate that the seizure of the phone was reasonable under the Fourth Amendment, so he would reverse the court of appeals’ judgment and affirm the judgment of the trial court. [Commentary: Note that the officer specifically told Appellant that he would get a search warrant if Appellant did not consent to the search of his phone. Up until that point, the officer did not regard Appellant as a suspect. The Court remanded the case so that the court of appeals can not only determine whether exigent circumstances existed, but also whether alerting the defendant that police now think he is a suspect (by seizing
7
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the recording with the child or have the child view the recording to enable the magistrate to determine whether the child's statements were given voluntarily. The magistrate's determination of voluntariness shall be reduced to writing and signed and dated by the magistrate. If a magistrate uses the procedure described by this subsection, a child's statement is not admissible unless the magistrate determines that the statement was given voluntarily
ordinary principles of procedural default and Wilson v. State to timely bring that fact to the trial judge’s attention. The Court further explained that it is now too late to for the judge who presided over the suppression hearing to issue findings because the benefits of having a new trial judge make findings on a cold record under these circumstances are slim. [Commentary: Note that the Court says it is not adopting the “balance” of the civil rule, meaning the twenty-day deadline. However, it nevertheless seems to treat the twenty-day requirement as part of the holding in Cullen by referring to the findings as overdue after twenty-days. Practitioners should be wary of this and avoid losing the ability to get findings by seeking enforcement of the requirement early and often. Another perhaps-too-nerdy consideration: Isn’t a party entitled to findings upon request under Cullen regardless of whether the trial court agrees to do it? If so, does the Court’s framing of the agreement to enter findings and conclusions as a “favorable ruling” create an extra layer of preservation for practitioners such that the request is no longer sufficient?]
The officer, however, did not return the juvenile and the recording to the magistrate after questioning. No voluntariness determination was made. The juvenile filed a motion to suppress his statement before trial. The trial court granted the motion and the court of appeals affirmed. The Court of Criminal Appeals affirmed concluding that the magistrate “used the procedure” outlined in the statute even though the officer did not comply with the request and no voluntariness determination was ultimately made. State v. Torres, --S.W.3d ---, 2023 WL 2993882 (Tex. Crim. App. Apr. 19, 2023) (6:3:0). Writing for the Court, Judge Yeary reasoned that by making the request following the express terms of the statute, the magistrate judge “used” the procedure outlined in the Family Code. To find otherwise, he reasoned, would equate the failure of law enforcement to comply with the request with finding the magistrate did not use the procedure. Thus, the Court concluded the procedure was used when the initial request was made. The Court affirmed the suppression of the juvenile’s statements.
F. Juvenile’s Statement - pursuant to the Family Code, a juvenile’s statement was inadmissible when a magistrate judge “used” the statutory procedure for determining voluntariness by requesting that the juvenile and the recording of his statement be returned to him following question although the return did not occur. A juvenile suspect in a murder investigation was brought in for questioning. A magistrate read the statutorily required warnings pursuant to a form. While reading the form, the magistrate requested on the recording (but outside the officer’s presence) that the officer return the juvenile and a recording of his statement to him after questioning so that the magistrate could make a voluntariness determination. In so doing, the magistrate invoked Section 51.095(f) of the Family Code, which provides:
Presiding Judge Keller, joined by Judge Hervey, filed a concurring opinion, to response to the State’s statutory construction argument that the procedure is not “used” unless completed. The concurrence concluded that the statute clearly contemplates the request will be complied with and found the State’s interpretation would thus thwart the legislature’s intent and may encourage law enforcement to disregard a magistrate’s request.
A magistrate who provides the warnings required by Subsection (a)(5) for a recorded statement may at the time the warnings are provided request by speaking on the recording that the officer return the child and the recording to the magistrate at the conclusion of the process of questioning. The magistrate may then view
Judge Newell also filed a concurring opinion. Judge Newell reasoned that equating the ambiguous phrase “uses the procedure” with “starting the procedure” is unnecessary. Additionally, such an 8
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interpretation could have the unintended consequences of removing a magistrate’s discretion after a request has been made. The officers, however, were required, based on the request, to return the juvenile to the magistrate along with the recording. This failure to comply violated the Family Code and therefore suppression of the juvenile’s statement was warranted under Article 38.23.
additionally wrote to say: (1) the court granted an improper remedy; (2) Stephens does not have standing to complain about who represents the State; (3) the prosecution of crimes is an executive department authority delegated to county and district attorneys, which presents a compelling vision of understanding the issue in this case; and (4) he has lingering concerns from the Court’s opinion on original submission.
III. TRIAL PROCEDURE
Judge Slaughter filed a dissenting opinion. In her opinion, she further bolstered the original opinion with a thorough discussion of the history of Texas. However, in her view, § 273.021 of the Texas Election Code does not violate our Separation of Powers Doctrine because the statute assigns the “power” to prosecute election law violations to the Attorney General rather than a “duty.”
A. Jurisdiction and Authority 1. Attorney General still lacks authority to independently prosecute criminal cases in trial courts; Election Code § 273.021, which purported to grant the Attorney General the unilateral power to prosecute election-law violations, still violates the separation of powers clause. The Attorney General filed a motion for rehearing in which he requested that the Court of Criminal Appeals reconsider its decision in State v. Stephens, 2021 WL 5917198 (Tex. Crim. App. 2021). In that case, the Court of Criminal Appeals held that section 273.021 of the Election Code violated Article 2, sec. 1 of the Texas Constitution which prohibits a member of one branch of government from exercising the power of another branch without express constitutional authorization. The Court of Criminal Appeals denied the motion for rehearing.
[Commentary: Ordinarily I would not include this in the paper because it’s just additional side opinions. However, as I reported on a published majority opinion in the last paper and this case has a lot of feelings associated with it, I felt I should make sure the entire case is fully fleshed out from the previous paper. As I am writing this, the Texas legislature is in session, so we'll have to see what legislative ramifications flow from the Court’s defenestration of the Attorney General’s election fraud division.] 2. Applicant was not estopped from challenging the jurisdiction of the trial court to revoke his community supervision despite accepting benefits under a plea agreement where Applicant lacked knowledge of material facts; trial court did not have jurisdiction to revoke Applicant’s community supervision after the period of time for community supervision allowed by statute had expired. Mathew David Lozoya pleaded guilty, pursuant to a plea bargain, to two counts of thirddegree felony obtaining a controlled substance by fraud. In exchange for his guilty plea, the State abandoned two other counts. The trial court ordered a four-year sentence of confinement in one count and community supervision for 10 years in the other. However, the maximum initial period of supervision for this offense without a lawful extension is five years. In year six, the prosecutor filed a motion to revoke. The trial court revoked Lozoya’s community supervision and sentenced him to five years’ incarceration. The
Judge Walker filed a concurring opinion. Judge Walker explained the possible ramifications of a ruling that disagreed with the majority opinion. Notably, if the Court ruled that the legislature could give the Attorney General the unfettered power to prosecute all election cases, the Court would be giving every future Attorney General the power to bring possibly fabricated criminal charges against every candidate running for public office in the State of Texas who disagrees with the Attorney General’s political ideals. He also acknowledged the concerns citizens have about election law violations but explained that if the citizens want for the Attorney General to be able to unilaterally prosecute election law violations, the proper path to make that happen is to secure a constitutional amendment. The remedy is not having courts “water down the Texas Constitution from the bench.” his
Judge Yeary filed a dissenting opinion to stand by original dissenting opinion. Judge Yeary 9
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aside or the trial court grants relief under Article 11.072. In this case, the proper remedy was not to unwind the entire plea agreement, but rather to set aside the trial court’s judgement revoking Lozoya’s community supervision.
Court of Criminal Appeals filed and set the case to determine: (1) whether Lozoya should be estopped from challenging the trial court’s revocation of his community supervision because he accepted benefits under his plea agreement, (2) whether the trial court had jurisdiction to revoke Lozoya’s supervision after the five-year period expired if estoppel does not apply, and (3) the proper remedy if Lozoya is entitled to relief.
Presiding Judge Keller, Judge Keel, and Judge Slaughter concurred without written opinion. Judge Yeary filed a dissenting opinion. Judge Yeary would deny relief on the more basic proposition that Lozoya’s claim was not cognizable in postconviction habeas corpus proceedings to begin with.
The Court of Criminal Appeals granted relief. Ex parte Lozoya, --- S.W.3d ---, 2023 WL 2669667 (Tex. Crim. App. Mar. 29, 2023) (5:3:1). Writing for the Court, Judge Hervey concluded that Lozoya was not estopped from challenging the trial court’s order revoking his community supervision, the trial court had no jurisdiction to revoke Lozoya’s community supervision, and the proper remedy was to vacate the trial court’s order revoking Lozoya’s community supervision. Judge Hervey first took the opportunity to clarify the application of estoppel by contract to criminal law. Estoppel by contract prevents a party from denying the truth of facts agreed on and settled by force of entering into a contract. However, when the Court has referred to estoppel by contract in Rhodes and subsequent cases, it meant estoppel by acceptance of benefits under a contract, which is a closely related but distinct type of estoppel. Under the “estoppel by acceptance of benefits” doctrine, it is essential that the person against whom the estoppel is claimed must have acted with knowledge of the facts and of his or her rights. In this case, even if placing a defendant on community supervision is a per se benefit, there was no evidence that anyone knew that the maximum lawful initial period of supervision was only five years or that Lozoya was bargaining away his right not to be placed on community supervision for longer than legally allowed. Therefore, Lozoya’s acceptance of the plea bargain was not voluntary. The Court then concluded that the weight of the Court’s precedent favors a determination that the trial court lost jurisdiction once the lawful period of community supervision expired. Judge Hervey rejected the argument that so long as the trial court had jurisdiction to place a defendant on community supervision, it has jurisdiction to revoke the defendant’s community supervision—even after the lawful period of supervision ends—until the order is set
B.
Plea Bargains
1. Texas Supreme Court’s “Seventeenth Emergency Order Regarding the COVID-19 State of Disaster” did not authorize a trial court to conduct a plea proceeding via videoconference despite the lack of a defendant’s written consent. Eluid Lira and Scott Huddleston were both charged with second-degree felony assault on a public servant. Both Lira and Huddleston reached plea agreements with the State and their cases were set for back-to-back pleas via a “zoom/video-conference plea docket.” Prior to the hearing, counsel for Lira and Huddleston filed identical motions objecting to the trial court’s setting the cases for plea hearings via Zoom videoconference. In the motions, Lira and Huddleston argued that denial of the motions would violate their constitutional right to counsel, right to public trial, and statutory rights under Articles 27.18 and 27.19 of the Code of Criminal Procedure. The State argued that Emergency Orders issued by the Supreme Court of Texas controlled over the Code of Criminal Procedure. Both Lira and Huddleston were sentenced to imprisonment and fines. The court of appeals held that paragraph 3(c) of the Seventeenth Emergency Order could not require a defendant in a criminal case to appear via videoconference for a plea hearing over his objection. The Court of Criminal Appeals affirmed. Lira v. State, --- S.W.3d ---, 2023 WL 151372 (Tex. Crim. App. Jan. 11, 2023) (5:1:3). Writing for the Court, Judge Newell concluded that the trial court had no authority to preside over a video-conferenced plea hearing where the defendant’s had not waived in person or in writing their right to be present. The Court 10
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Keller noted that the Emergency Order authorized the trial judge to “require” any person “to participate remotely”, subject only to “constitutional limitations.” In her view, the present cases differ from Ogg because (in the absence of a constitutional violation) the Emergency Order explicitly authorized what the trial court did here.
explained that the Emergency Order provided that “subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal—and must, to avoid risk to court staff, parties, attorneys, jurors, and the public—without a participant’s consent: … Allow or require anyone in any hearing, deposition, or other proceeding of any kind— including but not limited to a party, attorney, witness, court reporter, grand juror, or petit juror—to participate remotely, such as by teleconferencing, videoconferencing, or other means.” In In re Ogg 618 S.W.3d 361 (Tex. Crim. App. 2021) (orig. proceeding), the Court held that the Emergency Order cannot modify substantive rights or create authority to proceed where it does not otherwise exist. With this understanding of Ogg, the Court addressed whether the Emergency order abrogated the defendants’ substantive statutory rights to be personally present during court proceedings, The Court explained that one of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom during his trial. Further, Court noted that Article 1.15, Article 27.13. and Article 33.03 of the Code of Criminal Procedure establish a statutory requirement that the defendant be present in person and in open court to enter a plea of guilty. Given this backdrop, the Court concluded that a defendant has at least a substantive statutory right to appear in person in open court for a guilty plea hearing, and that this is not a case involving a waiver of this right.
Judge Yeary concurred without written opinion. [Commentary: Article 1.13 which sets out the procedural requirement for a State’s “right to a jury trial.” As the Court notes in the opinion, this is a misnomer because the State does not have substantive rights. Instead, there is a procedural requirement that the State provide written consent to the defendant’s waiver of a jury trial. But the Court notes that this procedural requirement is proceeded by a number of other procedural requirements, including that the defendant provide written consent to proceed to a remote bench trial. The dissent takes the position that the procedural requirement of the defendants’ consent to plead remotely (and thereby waive the right to a jury) is not as significant as the procedural requirement of the State’s consent to the defendants’ jury trial waiver. I leave it to you to read both the Court’s and dissent’s opinions and decide the reasonableness of the positions taken by each. Some of the difficulty with this case is that the defendants wanted to accept the plea bargain offered by the State, but they specifically objected to proceeding remotely and never provides written consent to proceed remotely. The Court seems to suggest that had the State included the requirement that the pleas be taken remotely as part of the plea bargain itself, then this dispute might have been avoided.]
Next, Judge Newell addressed whether the procedures granted authority to proceed where no such authority existed. In Ogg, the Court had held that the trial court could not proceed to a jury trial without the State’s statutorily required consent, and the failure to secure this consent deprived the trial court of the authority to proceed to a bench trial. The Court emphasized that our legislature made clear that a trial court simply lacks authority to enter a felony conviction unless a defendant appears in person and waives his rights in full compliance with the statutes that set out the conditions for a valid waiver. Given this statutory background, the trial court lacked authority to proceed to a remote bench trial without the consent of the defendants just as it could not proceed to a jury trial without the consent of the State in Ogg. Presiding Judge Keller filed a dissenting opinion in which Judge Keel and Judge Slaughter joined. Judge
2. Agreement to dismiss or not re-file a case was a not an immunity agreement due to absence of facts agreeing a grant of immunity in exchange information or testimony. Sanitha Lashay Hatter was charged with misdemeanor DWI as well as felony assault of a peace officer, which occurred as part of the same incident. While those cases were pending, Hatter was arrested and charged with a second misdemeanor DWI. Different prosecutors represented the State on the assault case and the DWI cases, and Hatter had different lawyers for the assault case and the DWI cases. The felony prosecutor filed a motion to dismiss 11
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the assault case, reserving the right to refile. The felony prosecutor then refiled the assault case. In response, Hatter filed a “Motion for Specific Performance” claiming that the felony prosecutor had made a promise to dismiss the assault case and not re-file it, and Hatter sought enforcement of this promise. Supporting this motion was a self-sworn, unnotarized “affidavit” in which Hatter’s counsel explained the course of events leading up to the motion. According to Hatter’s counsel, at some point during plea negotiations, the State offered to dismiss the felony assault charge in exchange for a guilty plea to the DWI charges. Hatter’s counsel spoke to the felony prosecutor about the unfairness of this offer. In response, the felony prosecutor agreed that regardless of the disposition of the misdemeanor DWI cases, he would dismiss the felony assault charge. However, the misdemeanor DWI charges were both dismissed the following month due to the results of the blood tests being unreliable and unusable. The felony prosecutor was then ordered by a superior to re-file the felony assault charge even after making his superiors aware of the promise he made. The trial court granted the Motion for Specific Performance and ordered the State to dismiss the case.
with the Fifth Amendment right against selfincrimination and the Sixth Amendment rights to confront one’s accusers and to compulsory process. In contrast, the agreement here was reached after Hatter had been charged with an offense, the parties believed the better outcome would be for her to get help for substance abuse instead of convicted of a felony, and they reached an initial agreement where the felony prosecutor promised to dismiss the assault case in exchange for Hatter’s promise to plead guilty to the DWI cases [which, remember, never happened]. The Court thus concluded that this was simply the beginning of a plea-bargaining agreement.
The State appealed the trial court’s dismissal, arguing that the trial court was without authority to dismiss the indictment or to order the State to dismiss it. The court of appeals disagreed, finding that there was an immunity agreement between the State and Hatter. This agreement was approved and made enforceable by the trial court’s grant of Hatter’s Motion for Specific Performance and the grant of the State’s earlier motion to dismiss.
C. Waiver of Jury Trial - The right to a trial by jury is a waivable-only right, and waiver will not be inferred from a sparse record. The State charged Saul Ranulfo Herrera Rios with of continuous sexual abuse of a child. He pleaded not guilty. Rios did not execute a written jury waiver, and the trial judge did not admonish Rios about his right to a jury trial. A jury waiver was never discussed in open court. Rios testified that he is a native Spanish speaker and that he reads little English. He remembered regularly attending pretrial court settings and said that trial counsel brought an interpreter to only one of them. Rios claimed that he was given blank pass slips (boilerplate motions for continuances) to sign, and that trial counsel told him to sign the slips so trial counsel could prove that Rios was present and get a new court date. Some pass slips were admitted at the hearing, and the last four pass slips had checkmarks next to “Trial by the Court.” Rios said that he did not know what “Trial by Court” meant because the form was in English. Rios then testified that he told trial counsel that he wanted a jury trial, and he remembered doing so because trial counsel responded that a jury trial would cost $5,000 more. Rios’s trial
[Commentary: Be careful with this case. While the Court likens the promise to dismiss the felony charge to a plea bargain, the Court was not asked to hold whether it was. Instead, the Court addressed whether the court of appeals improperly regarded it as an immunity agreement. The Court holds that this wasn’t an immunity agreement, and the court of appeals was wrong to try to convert it into one. The Court merely holds that this wasn’t an immunity agreement. The Court does not hold that a unilateral promise by the State to dismiss a case is enforceable as a plea bargain without some evidence of consideration in the record.]
The Court of Criminal Appeals reversed and remanded. State v. Hatter, --- S.W.3d ---, 2023 WL 152194 (Tex. Crim. App. Jan. 11, 2023) (9:0:0). Writing for a unanimous Court, Judge Walker concluded that because the agreement between Hatter and the State was in the nature of a plea bargain agreement—not an immunity agreement—the court of appeals applied an inapplicable test for determining whether the trial court erred in granting the motion for specific performance. The Court explained that while grants of immunity from prosecution are conceptually promises to dismiss a case, not all promises to dismiss a case are grants of immunity from prosecution. An immunity agreement carries a particular meaning for criminal practitioners which is indelibly intertwined 12
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[Commentary: Note that this case popped up around the same time as Lira v. State, --- S.W.3d ---, 2023 WL 151372 (Tex. Crim. App. Jan. 11, 2023) (5:1:3), discussed above. That means that these cases were considered by the Court during an overlapping time frame. Consider Presiding Judge Keller’s dissent in both cases in that context.]
counsel’s testimony conflicted with Rios’s testimony. The trial court found Rios guilty and sentenced him to 35 years’ confinement. On appeal, Rios argued that he did not waive his federal constitutional right to a jury trial, and that the state statutory procedures for waiving a jury were not followed. The court of appeals abated the case for findings and conclusions about his waiver claims, and the trial court concluded that Rios waived his right to a jury. Rios filed a pro se petition for discretionary review, arguing that the court of appeals erred because he did not knowingly and intelligently waive his right to a jury.
D. Pre-trial Discovery - A trial court in a criminal proceeding does not have authority to hold an ex parte hearing and enter an ex parte order compelling a third party to produce documents without notice to the prosecutor representing the State. Rodolfo Zambrano was charged with the offense of sexual assault of a child. That case is pending in Lubbock County. Through counsel, Zambrano filed a pre-trial “Ex Parte Motion for Court Ordered Production of Documents and/or Things,” seeking a court order for the production of documents held by the Lubbock Police Department. Zambrano relied upon Ake v. Oklahoma, 470 U.S. 68 (1985) and Williams v. State, 958 S.W.2d 186 (Tex. Crim. App. 1997) as support for seeking the records ex parte, arguing that the defense should not be required to disclose its investigative strategies or theories through its request for discovery. The trial judge granted the motion and ordered the Lubbock Police Department to provide the requested records and not disclose the order to the Lubbock County District Attorney’s Office.
The Court of Criminal Appeals reversed the judgement of the court of appeals and remanded for a new trial. Rios v. State, --- S.W.3d ----, 2022 WL 17481021 (Tex. Crim. App. Dec. 7, 2022) (7:0:2). Writing for the Court, Judge Hervey first explained that the right to a jury trial is a waivable-only right so Herrera did not forfeit that right by merely failing to object at trial. The Court then explained that the waiver of a constitutional right requires an intentional relinquishment or abandonment of the right so waiver will not be inferred from a silent record. The Court stated that the record at most shows that trial counsel had his clients sign blank pass slips, which trial counsel took to the prosecutor as proof of his client’s presence. The prosecutor testified that she thought that the pass slips were already filled out when trial counsel gave them to her, but the record is not clear. While Rios conceded that he knew he had the right to be tried by a jury, and while that can be a relevant consideration, a waiver cannot be knowing and intelligent unless the record shows that the defendant at least had sufficient awareness of the relevant circumstances and likely consequences of waiving his right to a jury. Further, there was no evidence about Rios’s education, and the record did not show that Rios was a sophisticated person with legal acumen. Given that the burden of proof is on the State and the sparse record in this case, the Court concluded that the evidence was insufficient to show that Rios expressly, knowingly, and intelligently waived his right to a trial by jury.
The City of Lubbock filed a petition for writ of mandamus before the court of appeals seeking to have the order set aside. The court of appeals denied The City of Lubbock’s petition. Addressing the argument that the trial court exceeded its authority, the court concluded that the use of ex parte proceedings to protect defensive strategy has been widely accepted by the courts, and thus held that the trial court acted within its authority when it entered the ex parte order at issue and denied mandamus relief.
Presiding Judge Keller filed a dissenting opinion. In her view, the record supports the trial court’s findings that Rios consented to having a bench trial. Judge Slaughter dissented without an opinion. 13
The Court of Criminal Appeals conditionally granted mandamus relief. In re City of Lubbock, --S.W.3d ---, 2023 WL 1807149 (Tex. Crim. App. Feb. 8, 2023) (6:2:1). Writing for the Court, Judge Newell began by stating that the Court only needed to decide whether the ex parte nature of the proceeding was expressly and constitutionally authorized. The Court explained that mandamus relief is available if the
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nevertheless chose to read the language as conflicting with her own articulation of the standard for mandamus relief. Exit question: How intellectually rigorous is the distinction between the “one clear result” mandamus standard set out in Weeks and the “clear abuse of discretion” standard articulated by the Texas Supreme Court (and also referenced by the Court of Criminal Appeals)?]
record establishes that (1) Relator has no adequate remedy at law and (2) that what it seeks to compel is a purely ministerial act, not an act involving a discretionary judicial decision. It is available for a novel issue or one of first impression with uncontested facts when the law points to but one clear result. Citing the Texas Supreme Court, “a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ.”
E. Collateral estoppel did not preclude the State from indicting a defendant for the aggravated assault of one victim after a jury acquitted him of capital murder, murder, and aggravated robbery of a different victim occurring during the same series of events, but at two separate locations. Cedric Richardson was present at the scene of two shootings in which Keoddrick Polk shot two victims, Jkeiston Levi and Breon Robinson. Polk shot Robinson at the first location, the “Miller Avenue” location. Polk then shot both Robinson and Levi at the second location, the “Childress Street” location. Robinson received two different and independently fatal gunshots. The State indicted both Polk and Richardson for capital murder, murder, and aggravated robbery with a deadly weapon, of Robinson. A jury convicted Polk of capital murder, but a different jury acquitted Richardson of all three charges by a general verdict. The State subsequently indicted Richardson for aggravated robbery and aggravated assault of the second victim, Levi.
According to the Court, the first prong was satisfied because mandamus is the proper remedy for a trial court’s action against a non-party. Further, the second prong was satisfied because the trial court was without authority to entertain an ex parte request for third-party discovery, and it also lacked authority to enter an ex parte order for that discovery for three reasons. First, there is no statutory provision that grants a trial court express authority to consider a discovery request in an ex parte proceeding. Second, the United States Supreme Court decision in Ake v. Oklahoma and the Texas Court of Criminal Appeals decision in Williams v. State regarding ex parte proceedings for the appointment of defense experts had never been extended to cover criminal discovery as a matter of constitutional law. And third, the underlying rationale justifying ex parte proceedings in Ake and Williams did not extend to criminal discovery.
Richardson filed a pretrial application for writ of habeas corpus, based on the doctrine of collateral estoppel. The trial court, following a hearing, granted relief as to the aggravated robbery charge, but not the aggravated assault charge. Appealing the trial court’s partial denial of relief, Richardson argued that collateral estoppel prevented the State from relitigating an issue that he claims the jury in his first trial already decided: that he was not a party to the shootings. The court of appeals agreed with him and remanded the case to the trial court to enter an order dismissing the aggravated assault charge.
Presiding Judge Keller filed a concurring opinion in which Judge Keel joined. In her view, the Court’s citation to the Texas Supreme Court’s decision in Walker v. Packer adopts the relaxed mandamus standard applicable in civil law. Judge Keller wrote that she would expect the Court to explicitly acknowledge that intent and provide reasons for the change. Judge Slaughter dissented without written opinion. [Commentary: Note the Court cites to Walker v. Packer and the standard for mandamus set out in that case because there were no cases from the Court of Criminal Appeals addressing whether mandamus will lie for a violation of a judicial canon. Presiding Judge Keller acknowledges that the Court of Criminal Appeals had applied this standard before, but
The Court of Criminal Appeals reversed the court of appeals. Ex parte Richardson, --- S.W.3d ---, 2022 WL 3640495 (Tex. Crim. App. Sept. 28, 2022) (9:0:0). Writing for a unanimous Court, Judge Yeary concluded that under the Ashe test, we cannot tell whether the jury’s verdict at the first trial necessarily 14
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was a “reasonable alternative” for William’s brother to watch Brown’s testimony on a live video stream from another room.
determined that he was neither the primary actor, nor at least a party to, the assault on Levi. Richardson was acquitted of murdering Robinson during the first trial, but Robinson received two independently fatal gunshot wounds at both locations, either one of which could have caused his death. Further, the jury charge in Richardson’s first trial authorized the jury to convict him for the murder of Robinson on the basis of any conduct that occurred “on or about” January 16, 2017—so, for any conduct that might have occurred at either Miller Avenue or Childress Street. Thus, the first jury could have acquitted Richardson of murdering Robinson without necessarily even having to pass on the question of whether Richardson was guilty (either as the primary actor or as a party) of the assaultive conduct that occurred at Childress Street because the first jury might have concluded that Robinson was already dead by the time the conduct at Childress Street occurred. Therefore, the Court could not conclude that the State is precluded from litigating his liability for the second assault on Levi at the Childress Street location.
On appeal, the Fourth Court of Appeals reversed Williams’s conviction, holding that her Sixth Amendment right to a public trial had been violated by her brother’s temporary exclusion from the courtroom. Observing that the violation of a defendant’s publictrial right is structural error that does not require a showing of harm, the court of appeals reversed Williams’s conviction and ordered a new trial. The Court of Criminal Appeals reversed the court of appeals and upheld the trial court. Williams v. State, --- S.W.3d ---, 2022 WL 4490406 (Tex. Crim. App. Sept. 28, 2022) (5:3:1). Writing for the Court, Judge Slaughter explained that courts should rarely exclude any member of the public from a courtroom during criminal case proceedings, and before doing so, the court must consider the factors under Waller v. Georgia, 467 U.S. 39 (1984), to ensure that any such exclusion is justified. Nevertheless, considering the narrow circumstances presented in the case, as well as approaches of other jurisdictions, the Court concluded that the traditional Waller factors were not dispositive. The Court concluded that even assuming that the trial court’s actions resulted in a partial closure of the courtroom, any such closure was so trivial or de minimis that it did not infringe on the values served by the Sixth Amendment.
F. Sixth Amendment Right to a Public Trial – Virtual inclusion (via video feed) of a family member who had been physically excluded from the courtroom during the testimony of one witness did not infringe on values served by Sixth Amendment right to a public trial. The Seguin Police Department organized a “controlled buy” of drugs wherein a confidential informant, Josh Brown, purchased crack from April Loreace Williams. At Williams’s jury trial, the State planned to call Brown as a witness, but asked that Williams’s brother, Jerry Williams, be excluded from the courtroom during Brown’s testimony. The State contended that Jerry’s presence would intimidate Brown. The State offered no support for this claim. To minimize the effects of the closure, the State offered to set up a live video feed in another room of the courthouse so that Jerry could watch Brown’s testimony in real time. The trial court granted the State’s request and overruled Williams’s objection. In its oral findings made on the record, the trial court concluded that the State’s interest outweighed the defendant’s right to a public trial. Specifically, the trial court found that the exclusion of Williams’s brother was necessary to protect Brown from intimidation and that the exclusion was only for the testimony of the confidential informant. The court further found that it
Judge Newell filed a concurring opinion joined by Presiding Judge Keller and Judge Hervey. Judge Newell disagreed with the Court’s decision to avoid any analysis of whether the State advanced an overriding interest in closing the proceedings. In his view, this approach effectively holds that satisfying the second and third Waller factors is enough to authorize a closure of the court despite a defendant’s right to a public trial. Further, even when the Court has acknowledged that other jurisdictions have applied a less stringent Waller test in the context of a “partial” closure, the Court still recognized the need for the party seeking the closure to provide some justification for that closure. Judge Walker filed a dissenting opinion. Judge Walker would apply the Waller analysis to this case. 15
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Judge Walker notes that missing from the record is any evidence, or findings, that would support the State’s assertion that Williams’s brother would actually intimidate the witness. Further, Judge Walker explains that the Court, in determining whether or not to apply the triviality standard, essentially conducted a harm analysis even though the error was structural.
On direct appeal, King argued that his absence from the hearing violated the 14th Amendment’s Due Process Clause and Article 28.01 of the Code of Criminal Procedure. The court of appeals agreed that King’s absence was error but found the error to be harmless because King’s presence did not bear a reasonably substantial relationship to his defense and his absence did not affect the outcome of the trial.
[Commentary: Currently courts across the country are all over the place regarding how “closed” a courtroom must be to violate a defendant’s right to a public trial. At some point the United States Supreme Court will have to step in to provide some guidance and clear up some conflicting approaches to this issue. But Judge Walker makes an astute observation in his dissent. He argues that the Court essentially conducted a harm analysis by evaluating whether the video feed infringed on the values served by the Sixth Amendment. Many courts find themselves in the same boat because the Supreme Court’s determination that such errors are structural and therefore require reversal upon a showing of any error, no matter how small. It is very tempting for reviewing courts to find a way to conduct a back-door harm analysis, particularly when the error is, as the Court proclaims in this case, trivial.]
The Court of Criminal Appeals affirmed. King v. State, --- S.W.3d ---, 2023 WL 2146402 (Tex. Crim. App. Feb. 22, 2023) (4:3:2:0). Writing for the Court, Presiding Judge Keller concluded that there was no due process violation because King’s presence did not bear a reasonably substantial relationship to defending the hearing, and the Article 28.01 violation was harmless because King’s absence did not substantially affect the jury’s decision. The Court explained that King’s inability to speak with his trial counsel about the motion in limine was harmless because King’s trial counsel was present at the meeting, sufficiently advocated on King’s behalf, and secured favorable rulings. Further, while King argued that he did not have the opportunity to consult with counsel before pleading guilty, King did not formally plead guilty until the next day, and King told his attorney, on the record, that he wanted to plead guilty to the evading arrest charge and have the jury assess punishment. The Court next explained that the discussion regarding whether King would be disruptive during trial was harmless because the jury was not in the courtroom, and there is no evidence the trial court made any rulings based on this discussion. The Court next explained that King’s argument that there may have been an issue with trial counsel’s representation because of the comment regarding King wanting another lawyer was not valid because King made an unsolicited apology to his trial counsel on record where he assured that he wanted his trial counsel representing him. Finally, the Court explained that this is not the kind of case where the data is insufficient to conduct a meaningful harmless error analysis simply because of the unrecorded two minutes during the bench conference.
G. Defendants’ Right to be Present - Trial court holding a pre-trial hearing in Defendant’s absence did not violate the Due Process Clause, and any violation of Article 28.01 of the Code of Criminal Procedure was harmless. Justin King was charged with evading arrest or detention with a motor vehicle and with theft of a firearm. The trial court held a pretrial hearing on King’s motion in limine regarding punishment evidence. King’s trial counsel attended the hearing, but King was not present in the courtroom. The trial court granted the unopposed motion in limine after a discussion with the attorneys regarding whether King intended to stipulate to the enhancements alleged in the indictment, the fact that King had told his trial counsel that he could fire him in order to delay the trial, and whether King might be disruptive at trial. The hearing then went off the record for two minutes. When King returned to the courtroom, trial counsel advised King of his right to plead not guilty; King said that he wanted to plead guilty on the evading arrest charge and have the jury assess punishment. The jury found King guilty and assessed punishment at twenty years’ confinement and a $10,000 fine.
Judge Newell filed a concurring opinion in which Judge Hervey and Judge Walker joined. Judge Newell noted that King primarily argued that this was a rare case in which it was impossible for a reviewing court to conduct a meaningful harm analysis because the record was silent regarding a portion of that pre-trial conference. In making this argument, King relied on VanNortrick v. State, 227 S.W.3d 706 (Tex. Crim. 16
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App. 2007). Rather than analyze whether error occurred in this case or even analyze the proper standard of harm, Judge Newell would distinguish VanNortrick and affirm the court of appeals because unlike VanNortrick, in this case we can still conduct an independent review of the record to determine if any error (constitutional or non-constitutional error) flowing from King’s absence from the pre-trial proceeding resulted in harm.
that the State was not required to accept Perkins’s stipulation and concluded that the probative value of the evidence outweighed the prejudicial nature of the evidence. The trial court further held that the evidence was admissible under Rule 404(b) to show intent, motive, and absence of mistake and to rebut Perkins’s defensive theory. The trial court gave a limiting instruction prior to Rogers’s testimony.
Judge Yeary and Judge McClure concurred without written opinion.
On appeal, Perkins argued that the trial court erred by admitting Rogers’s testimony regarding the details of the extraneous offense over his objection and offer to stipulate to the assault. The State responded that the trial court’s ruling should be upheld because the extraneous offense was admissible under Rule 404(b) and that the trial judge’s Rule 403 ruling was within the zone of reasonable disagreement. Further, the State argued that even if the trial court erred, Perkins was not harmed. The court of appeals held that the State was not required to accept Perkins’s offer to stipulate to the commission of the unadjudicated offense. The court of appeals then considered the admissibility of the extraneous offense evidence. The court held that the trial court’s Rule 404(b) ruling was not outside the zone of reasonable disagreement, but failed to perform a review of the trial court’s Rule 403 ruling.
[Commentary: The Court seems to treat this as simply the defendant’s absence from a hearing on a motion in limine. The problem with that framing is that there was also a silent record regarding a portion of the hearing. That was the real issue. The Court resolves it by presuming that the off-the-record discussion was “trivial.” As the concurrence notes, the Court only granted review to address harm in light of the incomplete record, and yet a plurality analyzed the law surrounding the right to be present. Exit question: Reaction to Lira v. State, --- S.W.3d ---, 2023 WL 151372 (Tex. Crim. App. Jan. 11, 2023) (5:1:3)?] IV. EVIDENCE A. Stipulations - The State is not required to accept a defendant’s stipulation of evidence regarding an unadjudicated extraneous offense offered for noncharacter conformity purposes rather than introduce testimony regarding the commission of that offense. The State charged Mickey Ray Perkins with aggravated assault against a person with whom he had previously had a dating relationship, Lana Hyles. The State announced its intent to offer testimony regarding an unadjudicated extraneous assault committed by Perkins six months prior against a different victim, Sarah Rogers. The State argued the evidence was admissible under Article 38.371 of the Texas Code of Criminal Procedure, the doctrine of chances, and Rule 404(b) of the Texas Rules of Evidence to show motive, intent, absence of mistake, or lack of accident. The State also urged that the evidence was admissible to rebut the defensive theory, suggested through cross-examination, that Hyles herself caused her injury. In response, Perkins offered to stipulate to assaulting Rogers in exchange for the State’s agreement not to call Rogers to testify. The State rejected the offer. Ultimately, the trial court ruled
The Court of Criminal Appeals affirmed in part and remanded in part. Perkins v. State, --- S.W.3d ---, 2022 WL 4088529 (Tex. Crim. App. Sept. 7, 2022) (7:2:0). Writing for the Court, Judge Newell explained that the State was not required to accept Perkins’s offer to stipulate to the unadjudicated offense. Generally, the State may agree to offers for the stipulation of evidence as it sees fit. However, in Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000), the Court recognized an exception to this rule. In Tamez, the Court held that the State was required to accept the stipulation of two jurisdictional priors in a felony DWI caes. The Court distinguished the present case from Tamez v. State by noting that the exception recognized in Tamez was born out of and applied to a case in which the existence of prior convictions must be alleged in an indictment and proven in the State’s casein-chief. In such circumstances the details of the extraneous offenses is unduly prejudicial because the only relevance of the prior offense is to establish the jurisdictional element of the offense. The Court noted 17
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was the credibility of C.S and whether C.S. was telling the truth originally, or when he later denied the sexual assault. The State called Sergeant Hicks who testified that he felt that C.S. gave a credible statement. When asked if he thought C.S. was lying, Hicks responded “no.” Cook objected, stating that Sergeant Hicks was not qualified to say that the victim’s statement was credible. The trial court overruled the objection.
that it had not extended this exception beyond that context. The Court then addressed the admissibility of the unadjudicated extraneous offense. The Court explained that even if a court determines that evidence is relevant and admissible for a non-conformity purpose, Rule 403 may still preclude its admission. In this case, the court of appeals merely held that the trial court conducted the required balancing test. It did not measure the trial court’s ruling against the relevant criteria by which a Rule 403 decision is made. Because the court of appeals failed to review the trial court’s Rule 403 analysis, the Court remanded the case for consideration of this aspect of Perkins’s argument.
The court of appeals held the evidence was legally sufficient to support the jury’s guilty verdict. However, the court of appeals held that the trial court erred in admitting Hicks’s opinion whether C.S. was testifying truthfully. The court then concluded that Cook was harmed by such testimony. It reversed the trial court’s judgments and remanded the case for a new trial.
Judge Yeary filed a concurring opinion joined by Judge Slaughter. Judge Yeary would have preferred the Court more explicitly say at least in a case like this one, that it is sometimes the details of extraneous offenses themselves, not the mere fact of conviction for misconduct, that makes misconduct evidence relevant and supports the determination that it is more probative than prejudicial.
The Court of Criminal Appeals reversed and remanded to the court of appeals to reach the merits of Cook’s remaining grounds. Cook v. State, --- S.W.3d --, 2023 WL 152984 (Tex. Crim. App. Jan. 11, 2023) (7:1:1). Writing for the Court, Judge McClure concluded that Sergeant Hicks’s testimony did not harm Cook’s substantial rights. The Court laid out the nonexclusive factors for analyzing non-constitutional errors: the character of the alleged error and how it might be considered in connection with other evidence; the nature of the evidence supporting the verdict; the existence and degree of additional evidence indicating guilt; whether the State emphasized the complained-of error; the trial court’s instructions; the theory of the case; and relevant voir dire. The Court stated that considering the record, the testimony was not calculated to inflame the jury’s emotions, substantially similar testimony was allowed without objection, the jury charge instructed the jury that it was the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and the jury heard C.S. provide a detailed account regarding Cook’s sexual assault. Thus, any error by the trial court in admitting the testimony at issue was harmless.
[Commentary: Judge Yeary’s concurring opinion demonstrates the difficulty with determining the admissibility of extraneous offenses. Sometimes the details of the offense can be used to support a noncharacter based rationale for the admissibility. And sometimes the details (when the extraneous offense is really being use to show character conformity) make the extraneous offense more prejudicial. I leave it to you to decide whether the concurrence distinguishes between the two situations. The court of appeals seems to think it did. See Perkins v. State, 2023 WL 402176 (Tex. App.---Eastland Jan. 26, 2023, no pet. h.). But the bottom line for this opinion is that the stipulation procedure for felony DWIs outlined in Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000) does not extend to cases involving non-jurisdictional priors.] B. Officer’s opinion on the credibility of a child victim was inadmissible, but ultimately harmless in light of rest of the record. Kennie Lewis Cook, Jr. was convicted of aggravated sexual assault of a child. The complainant, seven-year-old C.S., outcried to his mother, but then later denied that Cook had molested him. The focus during trial for both the State and Cook
Judge Keel concurred without written opinion. Judge Walker filed a dissenting opinion. In his view, the testimony was inadmissible, and the error affected Cook’s substantial rights. Judge Walker disagreed with the majority’s analysis of harm because 18
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The Court of Criminal Appeals held that the detective’s testimony was admissible over the Confrontation Clause objection. Allison v. State, --S.W.3d ---, 2023 WL 2994187 (Tex. Crim. App. Apr. 19, 2023) (5:3:1). Writing for the Court, Judge McClure explained that the detective’s testimony was in the nature of expert opinion testimony. As to the Confrontation Clause, the Court concluded the testimony was non-testimonial because the detective simply followed his normal procedure in asking sources and informants the meaning of unfamiliar slang terms without giving them the context of the phrase or informing them why he was asking. The Court reasoned Rule 703 permits an expert to base his opinion on hearsay and no hearsay statements were admitted before the jury because the detective himself bore witness against Allison giving his own opinion of the phrase’s meaning. Finally, the Court concluded, alternatively, that Allison was not harmed by any error given the strength of the State’s case and the slight evidentiary value of the testimony related to an extraneous offense.
it did not consider an officer’s inherent impression of reliability, or the unequivocal character of the question asked and answer given. [Commentary: What seems to have happened here is that the State questioned the officer regarding the investigation of the offense when the defense had not opened the door. And part of that inquiry led to a question about the child victim’s credibility. In that regard, Judge Walker’s dissent is very informative. However, the Court ultimately held that this brief reference which was not relied upon later by the State and was ultimately harmless, particularly given that similar information came in elsewhere without objection.] C. Expert testimony regarding the meaning of a slang phrase “pull a Carlos” used in a recorded jail phone call was admissible and did not implicate the Confrontation Clause, but even if it did, the admission was harmless. Trekeymian Allison was charged with aggravated robbery. During his trial, the State introduced a recorded jail phone call between Allison, who had not yet been arrested in connection with the robbery, and a co-defendant. During the call, the co-defendant told Allison several times that he needed to “pull a Carlos.” The following day, there was a second shooting at the robbery victim’s home. At trial, the State offered testimony from a detective, who investigated the term “pull a Carolos” by speaking to a confidential informant and two law enforcement sources. The detective, over objection on Confrontation Clause grounds, testified before the jury that he developed the expert opinion that the term “pull a Carolos” means to conduct a shooting of some sort. Allison was convicted.
Judge Yeary filed a concurring opinion concluding that although the admission of the testimony was harmless, it was error to admit the detective’s testimony because the testimony did not establish that it was within the scope of a legitimate field of expertise or that it relied upon principles involved in that field. Judge Yeary concluded the testimony hear was not based on the expert’s own experience but rather hearsay sought to be used specifically against Allison. Presiding Judge Keller and Judge Keel concurred without opinion and Judge Walker dissented without opinion.
The court of appeals held that because the detective’s testimony was based on out-of-court statements, which were procured for use against Allison and used for the truth of the matter asserted, the testimony violated the Confrontation Clause. The majority concluded that Allison was harmed but Justice Stevens dissented concluding that although the Confrontation Clause was violation, Allison was not harmed given the strength of the State’s evidence connecting him to the robbery.
V. OFFENSES A. Injury to a Child – Evidence was insufficient to establish reckless injury to a child by allowing baby to ingest cocaine through breastfeeding even though evidence established that the child had enough cocaine in her system to make her addicted. Danielle Edwards was charged with injury to a child for recklessly causing her infant daughter, L.B. a serious mental deficiency, impairment, or injury by allowing L.B. access to cocaine and allowing L.B. to 19
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[Commentary: The Court notes in its opinion that there might have been a different result had the State introduced evidence of the effect the drugs had on the particular victim.]
ingest cocaine through breastfeeding. At trial, the State called the owner of a drug screening center who testified that he was shocked by the level of cocaine in L.B.’s system, and that the results were “indicative of an addict doing it all the time.” He further testified about the possible risks and effects of high levels of cocaine including the possibility of a loss of appetite, psychological effects, and a racing heart. Regarding long term effects, he testified that there is the possibility of seizures, hardening of the heart, risk of heart attack, and mental or physical developmental delays. L.B.’s guardian also testified at the trial. She testified that L.B. was very small for her age, very clingy, and very fussy. However, L.B.’s guardian further testified that neither she nor L.B.’s pediatrician observed any developmental delays.
B. Aggravated Assault - Evidence was sufficient to support the jury’s finding that the victim faced a substantial risk of death as a result of her injuries from two gunshots despite neither bullet hitting a vital organ. Vital Garcia was convicted of first-degree aggravated assault on a family member resulting in serious bodily injury for shooting his then-girlfriend, Marissa Melendez, with a firearm. Garcia shot Melendez through the back of her right thigh as she ran away from Garcia. Garcia then trapped Melendez in the kitchen, told her he was going to kill her, and then shot Melendez in the right side of her chest from a close distance and fled the apartment. Melendez’s wounds did not require surgery and she was discharged from the hospital after a few hours. Melendez’s treating physician testified that the bullets had struck in close proximity to her heart, lungs, aorta, vena cava, femur, femoral artery, and femoral vein.
On direct appeal, Edwards argued that the evidence was insufficient to support the jury’s finding that L.B. suffered a serious mental deficiency, impairment, or injury. The court of appeals rejected this argument. The court of appeals held that the evidence was sufficient to prove that Edwards recklessly caused L.B. to ingest an amount of cocaine sufficient to make her addicted and experience withdrawal and, therefore, caused L.B. to suffer a serious mental deficiency, impairment, or injury.
On direct appeal, Garcia contended that the evidence was insufficient to establish that Melendez suffered serious bodily injury. The court of appeals agreed that the evidence was insufficient to support the jury’s finding that Melendez suffered serious bodily injury, and it reversed Garcia’s conviction without reaching Garcia’s other arguments.
The Court of Criminal Appeals reversed and remanded for consideration of whether Edwards’s conviction could be reformed to a lesser-included offense. Edwards v. State, --- S.W.3d ---, 2023 WL 2000060 (Tex. Crim. App. Feb. 15, 2023) (9:0:0). Writing for a unanimous Court, Judge Slaughter explained that there is no Texas Penal Code definition for “serious mental deficiency, impairment, or injury,” so the jury was free to use the common and ordinary meanings of the terms. The State’s witness who testified about the effects of cocaine only testified in general or hypothetical terms about how ingestion of cocaine could be harmful. Further, despite the State’s contention that the nature of drug addiction is such common knowledge that the jury could infer serious injury, the average juror would not have a commonsense understanding of precisely how drug addiction and withdrawals affect a child’s development, cognitive functioning, or mental health. Therefore, jurors could not, merely from the evidence presented here, draw a reasonable inference about the existence of a serious mental deficiency, impairment, or injury.
The Court of Criminal Appeals reversed and remanded. Garcia v. State, --- S.W.3d ---, 2023 WL 151989 (Tex. Crim. App. Jan. 11, 2023) (8:1:0). Writing for the Court, Judge Slaughter concluded that the court of appeals failed to view the evidence in the light most favorable to the verdict and impermissibly substituted its own judgment for that of the factfinder. The Court explained that the jury could have rationally inferred that Melendez’s gunshot wounds posed a substantial risk of death, such that the element of serious bodily injury was satisfied. The Court noted that the court of appeals seemed to focus on what the evidence failed to show, and ways in which the evidence could have been stronger, rather than analyzing whether the basic facts adduced were sufficient to permit the jurors to rationally infer the existence of serious bodily injury. Further, while 20
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sentenced him to one year in the county jail. The court of appeals affirmed.
evidence showing that a vital organ was struck by a gunshot would likely suffice to meet the statutory standard, that is not a necessary condition for finding serious bodily injury. Instead, the sole relevant inquiry is whether the injury as inflicted “creates a substantial risk of death.”
The Court of Criminal Appeals affirmed. Dunham v. State, --- S.W.3d ---, 2023 WL 151346 (Tex. Crim. App. Jan. 11, 2023) (8:0:1). Writing for the Court, Judge Richardson concluded that (1) there was sufficient evidence to support the conviction; and (2) jury unanimity was not required on the specific manner and means of the offense because it was not an “essential element” of the offense. First addressing sufficiency of the evidence, the Court explained that a rational jury could have found Dunham was recklessly representing (while in the course of business) that he worked for Moody’s then-current alarm company. Further, it was undisputed that Dunham continued the deception until moments before Moody signed the contract. Thus, the commodity and service he was advertising were not of the particular style, grade, or model that Dunham represented it as.
Judge Newell concurred without written opinion. [Commentary: Note that the conclusory opinion from the expert that this was serious bodily injury was evidence upon which the jury could rely upon to establish that element of the offense. I say conclusory because the expert was asked general questions about gunshot wounds, not about the specific effect of those wounds. However, unlike in Edwards v. State, --S.W.3d ---, 2023 WL 2000060 (Tex. Crim. App. Feb. 15, 2023) (9:0:0) (discussed above), there was other circumstantial evidence to support the opinion. And as a corollary, last term the Court held that a lay person’s opinion regarding the severity of disfigurement combined with other circumstantial evidence could raise a reasonable doubt about the greater offense of aggravated assault. Wade v. State, 2022 WL 1021056 (Tex. Crim. App. 2022).]
Next addressing jury unanimity, the Court disagreed with Dunham’s argument that the Deceptive Business Practices statute is a “nature of the conduct” offense because the statute explicitly focuses on whether a person committed “one or more of the following deceptive business practices.” Thus, the language of the statute does not focus on which of the deceptive business practices listed in the statute in Sections 32.42(b)(1) through 32.42(b)(12) is triggered, so long as one of them is. The Court therefore concluded that the specific manners and means constituting a “deceptive business practice” does not constitute an “essential element” of the offense.
C. Deceptive Business Practices - Texas Penal Code § 32.42(b) does not require jury unanimity on the same specific act of deception to convict because the manner and means is not an “essential element” of the offense. Mark Wakefield Dunham posed as a door-to-door security salesman for a different company from the one he worked for in order to convince an 81year-old woman who was recently widowed and diagnosed with cancer to sign up for a more expensive security plan with his company. Dunham was charged with deceptive business practices. The information alleged that Dunham intentionally, knowingly, and recklessly represented that a commodity or service was of a particular style, grade, or model, when it was another. He gave the false impression to Eloise Moody that (1) an alarm system was a Central Security Group system when it was actually a Capital Connect system; and (2) a new alarm installation would be free when it would actually require her to sign a new contract at additional cost. The trial court denied Dunham’s request for a unanimity instruction on the three manner and means. A jury found him guilty, and the trial court
Judge Yeary filed a dissenting opinion. Judge Yeary disagreed with the Court on both the legal sufficiency issue and the jury unanimity issue. In his view, Sections 32.42(b)(1) through 32.42(b)(12) are elemental, not only for legal sufficiency purposes, but for jury-unanimity purposes as well. [Commentary: Note that defining each deceptive act as elemental would allow for the State to prosecute for each misrepresentation. As it stands, the Court seems to be willing to say that all the misrepresentations to a single victim constitute a single offense. However, this case only involved the one victim so that is still an 21
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in which the reviewing court compares the elements of the greater, charged offense as stated in the indictment to the statutory elements of the purported lesserincluded offense. Lang’s indictment alleged that she did intentionally conduct and promote and facilitate an activity in which the defendant received, possessed, concealed and stored stolen retail merchandise. The total value of the merchandise involved in the activity was greater than $500 but less than $1500. In comparing theft’s statutory elements to the elements of organized retail theft as pled, the Court agreed with the appellate court that the theft elements of unlawful appropriation and intent to deprive the owner of property are not explicitly included in Lang’s indictment. However, the Court also agreed with the court of appeals in concluding that both elements can be deduced from Lang’s ORT indictment. According to the court “[c]ommon sense dictates that any [intentional] activity involving stolen property—other than returning it to its owner—necessarily involves an intent to deprive the owner of that property.” Because the State was required, based on the indictment, to prove that Lang received, possessed, concealed, or stored stolen property the theft element requiring Lang to intend to deprive the owner of property can be deduced from the ORT indictment.
open question as to what constitutes multiple offenses under the statute.] D. Organized Retail Theft – Theft can be a lesserincluded offense of Organized Retail Theft when the statutory elements of the lesser-included offense can be inferred from the indictment of the original offense. Terri Regina Lang shoplifted $565.59 worth of items from HEB. The State charged her with organized retail theft under the 2011 version of Texas Penal Code § 31.16(b)(1), (c)(3). The indictment alleged that Lang conducted, promoted, or facilitated an activity in which she received, possessed, concealed, or stored stolen retail merchandise valued at $500 or more but less than $1,500, and it described the stolen property. The indictment did not allege the owner of the stolen property, although at trial the State showed that HEB was the owner of the stolen merchandise. Lang was convicted, and the court of appeals affirmed her conviction. In 2018, this Court decided Lang I. In Lang I, this Court held that because the State failed to show that Lang did anything more than shoplift, we held that the evidence was insufficient to support Lang’s conviction and remanded the case to the appellate court to determine if the conviction should be reformed to a lesser-included offense. On remand, the court of appeals found that the identity of the property owner was not reflected in Lang’s indictment, the court concluded that theft could not be a lesser-included offense of ORT as charged, and reformation was deemed unavailable. The court of appeals rendered a judgment of acquittal.
However, the Court did not agree with the court of appeals’s reliance upon Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) to conclude that the identity, or existence, of the property owner is a “theft element missing from the indictment for organized retail theft.” Judge Walker explained the difference between essential elements and statutory elements. Essential elements are defined by the hypothetically correct jury charge. Accordingly, the essential elements of the hypothetically correct jury charge include more than the mere statutory elements. The Court ultimately concluded that because the theft statute’s plain language allows for theft convictions where the specific identity of the owner of the stolen property is unknown, and the prohibited conduct outlined in the theft statute does not require the State to prove the specific identity of the stolen property’s owner, the identity of the stolen property’s owner is not a statutory element of theft. But the existence of an owner of the stolen property is an essential element because there must be an owner of the property at issue for theft to
The Court of Criminal Appeals reversed. Lang v. State, --- S.W.3d ---, 2022 WL 3641007 (Tex. Crim. App. Aug. 24, 2022) (9:0:0). Writing for the Court, Judge Walker concluded that theft is a lesser included offense of organized retail theft in this case and Lang’s conviction could be reformed. Judge Walker explained that under Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014), a court of appeals may reform the judgment to reflect a conviction for a lesser-included offense after holding that evidence was insufficient to prove the greater if the jury necessarily found all the elements of the lesser offense when convicting of the greater. To determine if an offense is a lesser-included offense, the Court uses the cognate pleadings approach 22
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The Court of Criminal Appeals held that Woods was entitled to relief and vacated the conviction. Ex parte Woods, --- S.W.3d ---, 2022 WL 4490358 (Tex. Crim. App. Sept. 28, 2022) (8:0:1). Writing for the Court, Presiding Judge Keller explained that the issue here is the proper unit of prosecution. There are three types of focus for an offense: (1) result of conduct, (2) nature of conduct, and (3) circumstances surrounding the conduct. Criminal liability under the statute at issue turns on the defendant’s “status” of being a felon. Ordinarily, a “status” offense is a “circumstances surrounding the conduct” offense. When a particular circumstance makes otherwise innocent behavior criminal, the offense is a “circumstances” offense. For a “circumstances” offense, different or discrete conduct in violation of a statute may nevertheless be part of a single crime if the circumstances are the same. Thus, the Court concluded that a defendant who possesses two firearms has only committed one offense for purposes of the statute at issue. However, Presiding Judge Keller noted that the trier of fact is free to take into account how many firearms the defendant possessed when it assesses punishment.
occur, and this element can be deduced from Lang’s ORT indictment. Judge Yeary filed a dissenting opinion. Judge Yeary would overrule Byrd rather than distinguish it from the present case as the majority does. Further, even assuming that theft is a lesser-included offense, the jury’s verdict in this case did not necessarily embrace every constituent element of the lesser theft offense. In his view, the court of appeals was not authorized under Thornton to reform the trial court’s judgment to reflect a conviction for the lesser offense. [Commentary: Note that Judge Yeary’s dissent is essentially predicated on the idea that the Court HAS to overrule Byrd in order to allow reviewing courts to reform the judgement. However, the Court seems to have modified, rather than distinguished, the holding in Byrd to say essentially that the State still must plead an owner in a theft case but the failure to identify that owner in the pleading wouldn’t render the evidence supporting the theft conviction insufficient. This seems to jibe with the hint in Byrd that the State might have been able to prosecute Byrd for misdemeanor theft under a new information listing the proper owner. However, your mileage may vary regarding the possible longevity of the Court’s distinction between statutory and essential elements.]
Judge Yeary filed a dissenting opinion. Judge Yeary disagrees with the Court’s persistence in granting relief claims like Woods’s without addressing the threshold issue of cognizability.
D. Unlawful Possession of a Firearm by a Felon If a felon unlawfully possesses two firearms, he has committed only one offense under the statute for unlawful possession of a firearm. The State charged Floyd Woods in two separate indictments for the unlawful possession of a firearm by a felon. Each indictment alleged possession of a different firearm. The trial court sentenced Woods to 18 years on each offense, to run concurrently. On habeas, Woods contended that conviction on both offenses violates double jeopardy. He also contended that trial counsel was ineffective for failing to discover the doublejeopardy violation. In its initial findings, the habeas court concluded that Woods suffered a double-jeopardy violation. In supplemental findings requested by this Court, the habeas court concluded that counsel was not deficient for failing to discover the double-jeopardy violation because the law was unsettled regarding whether there was a double-jeopardy violation on these facts.
VI. JURY INSTRUCTIONS A. Defensive Instructions 1. Defendant was not entitled to a concurrent causation charge where her omission caused serious bodily injury to her child, despite not being the person to injure the child. A jury convicted Dana Presley Cyr of reckless injury to a child by omission for (1) failing to protect her son (“J.D.”) from her husband, (“Justin”), or (2) failing to seek reasonable medical care despite her duty to act as J.D.’s parent. On the day of the offense, Justin choked Cyr’s four-monthold son. The couple’s older child saw Cyr tell Justin to “stop hurting the baby” at one point during the outburst. Later that night, Cyr noticed J.D. experiencing seizure-like symptoms. Following a family member’s advice, Cyr gave J.D. Tylenol. When the seizure-like symptoms continued the next day, Cyr took the child to a hospital in another town (rather than the closest one) in an attempt to avoid their 23
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not possess the requisite mental state in order to be found guilty of reckless injury to a child. Cyr was thus arguing alternative causation under the guise or concurrent causation.
hometown’s Child Protective Services. Medical professionals at the hospital discovered the child had been shaken powerfully enough that the brain struck the inside of her skull. She had extensive subdural hemorrhaging, retinal hemorrhaging,, brain swelling, and retinal detachment. She also had two broken ribs, and medical professionals estimated that the injury to the child’s ribs was about two weeks old at the time she was brought in.
Judge Yeary filed a dissenting opinion. He would have affirmed the judgment of the court of appeals and allow the legislature to clarify what they intended in § 6.04(a). 2. Factual disputes were material for purposes of Article 38.23 instructions when the issues were affirmatively contested at trial by discrepancies between testimony and police officer dash camera footage. April 6, 2022, a unanimous Court of Criminal Appeals held that Larry Thomas Chambers was entitled to a 38.23 instruction. Chambers v. State, --- S.W.3d ---, 2022 WL 1021279 (Tex. Crim. App. Apr. 6, 2022) (9:0:0). Writing for a unanimous Court, Judge Richardson explained that a defendant must meet three requirements for submission of an Article 38.23(a) jury instruction: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that contested fact issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Judge Richardson explained that Chambers satisfied all three requirements. First, the evidence raised an issue of fact because, while the officer testified there was no rear license plate, other evidence showed that there was. Second, the evidence on the fact issue was affirmatively contested because of that direct conflict between the officer’s testimony and the video and photo evidence. Third, the fact issue was material to the lawfulness of the stop because the supposed lack of a rear plate was the only basis for the traffic stop. Because all three requirements were met, the Court held that the trial court should have given the instruction.
The jury sentenced Cyr to fifteen years’ imprisonment. On appeal, Cyr alleged that the trial court erred in denying her request for a jury instruction under Texas Penal Code § 6.04(a)’s concurrent causation provision for acts “clearly insufficient” to cause the proscribed harm. The court of appeals held that Cyr was entitled to an instruction on concurrent causation. The Court of Criminal Appeals reversed. Cyr v. State, --- S.W.3d ---, 2022 WL 17825857 (Tex. Crim. App. Dec. 21, 2022) (5:1:3). Writing for the Court, Judge McClure concluded that Cyr was not entitled to a concurrent causation instruction on either theory raised at trial. The Court explained that in order to prove injury to a child by omission under § 22.04, the State must show a person: (1) “intentionally, knowingly, or recklessly,” (2) “by omission,” (3) “cause[d] to a child,” (4) “serious bodily injury; serious mental deficiency, impairment, or injury; or bodily injury.” Where two or more causes satisfy “but for” causation, a criminal defendant remains liable if her conduct was either sufficient to have caused the result alone “regardless of the existence of a concurrent cause,” or both causes “together” were sufficient to cause the result. However, § 6.04(a) entitles a defendant to an instruction on concurrent causation when she shows (1) “an agency in addition to the actor” was a “but for” cause of the result charged, and (2) some evidence demonstrates her conduct is “clearly insufficient” to cause the harm and the other, concurrent cause is clearly sufficient to cause the harm.
The State filed a motion for rehearing claiming that none of the factual disputes Chambers relied upon were “material”. The State argued that three other reasons justified pulling Chambers over: (1) the license plate was not properly illuminated; (2) the license plate letters and numbers were obscured or altered; and (3) the license plate was expired.
The Court explained that the facts Cyr pointed to did not establish a concurrent cause, but rather were the very essence of the State’s case. The State alleged that Cyr, aware of a risk of injury or harm, failed to protect J.D. from the thing likely to cause the harm. Cyr’s contention that she was ignorant of the abuse on the date of the incident does nothing to controvert causality, and only points to some evidence that she did 24
The Court of Criminal Appeals denied the State’s motion for rehearing but addressed the State’s
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B.
arguments in a written opinion on rehearing. Chambers v. State, --- S.W.3d ---, 2022 WL 1021279 (Tex. Crim. App. Sept. 14, 2022) (7:1:1) (op. on reh’g.). Writing for the Court, Judge Richardson explained that none of the reasons listed by the State in the motion rehearing impact the materiality of the contested issue of the displayed license plate. The illumination and readability issues were affirmatively contested by evidence presented at trial. Further, the third reason— the expired tag— is not relevant for deciding the Article 38.23 jury instruction issue in this case because the officer who conducted the stop testified he could not see the tag at all, and therefore, would not have been able to base the traffic stop on the expired tag. Thus, Chambers was entitled to an Article 38.23 instruction. Judge Keel concurred without an opinion.
Lesser-Included Instructions
1. Art. 37.08 of the Texas Code of Criminal Procedure instructs that a jury must be unanimous because “a conviction on a lesser included offense would necessarily be a verdict of acquittal on the greater offense, not simply a situation where the jury could not agree on the greater offense. The State charged Gustavo Tijerina Sandoval with the capital murder of Javier Vega, Jr. (“Harvey”). A jury found Sandoval guilty of capital murder and answered special issues in such a manner that Sandoval was sentenced to death. In the automatic appeal to the Court of Criminal Appeals, Sandoval raised twenty-seven points of error. Among these points of error was the issue of whether the jury charge was erroneous when it instructed the jury to first find the defendant not guilty of capital murder before considering lesser-included offenses, otherwise known as an “acquittal first” instruction.
Presiding Judge Keller filed a dissenting opinion. In her view, Chambers failed to raise a fact issue about whether the officer had reasonable suspicion regarding the proper illumination of a license plate or tag because there was no testimony that there was proper illumination. The officer testified that he did not see a license plate, which could have supported the State’s argument that the license plate was not properly illuminated. Further, the videos are unclear about the matter.
The Court of Criminal Appeals affirmed. Sandoval v. State, --- S.W.3d ---, 2022 WL 17484313 (Tex. Crim. App. Dec. 7, 2022) (5:4:0). Writing for the Court, Presiding Judge Keller addressed Sandoval’s argument that the jury charge violated his rights under the Eighth Amendment and as articulated by this Court in Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009). First, the Court addressed the Eighth Amendment argument which was based on Beck v. Alabama 447 U.S. 625 (1980). The Court explained that unlike this case, in Beck, the jury was instructed solely on capital murder because a statute prohibited an instruction on felony murder even though felony murder was logically a lesser-included offense. Here, lesser included instructions were submitted. Next, the Court addressed Sandoval’s claim under Barrios v. State. Sandoval complained that the jury charge contravened the Court of Criminal Appeals holding in Barrios. He contended that, unlike in Barrios, which included a “benefit-of-the-doubt instruction,” “the trial court gave no instructions similar to the instruction in Barrios that the jury could have interpreted to permit it to consider one of the charged lesser-included offenses before reaching a verdict on the greater offense.” The Court clarified the statement in Barrios that discussed best practice among the types of instruction was dictum.
[Commentary: This is a unique case in that the Court issued a unanimous opinion last term on the propriety of the requested Article 38.23 instruction. The Court took the unusual step in this case to issue an opinion on rehearing that stands on its own for its discussion of why the factual disputes in the case were material. So, practitioners will have a lot of fun getting the citations right on this one. Note that the current Westlaw citation for the original opinion will stay the same, but the hyperlinks in this paper are different. They should take you to the respective opinions on the different hand downs despite having the same Westlaw citation. Exit question: Under the dissent’s view, can videotape evidence ever create a “material” factual dispute with officer testimony if the officer merely testifies “I didn’t see”? Follow up question: Could there ever be a factual dispute?]
The Court additionally addressed Article 37.08 and the various approaches to transitional instructions. 25
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2994981 (Tex. Crim. App. Apr. 19, 2023) (5:3:1). Writing for the Court of Criminal Appeals, Judge Hervey explained that there must be affirmative evidence that negates or establishes a reasonable doubt about the greater offense before a lesser-included instruction is warranted. None of the evidence cited by Chavez or the lower court satisfied the requirement that the evidence rebut or negate evidence of Chavez’s intent to kill the victims. For example, the Court reasoned that evidence that it was a co-defendant’s original idea to kill the victim was not germane to Chavez’s state of mind when the victims were killed. The Court affirmed that the guilty-only requirement is met only if there is affirmative evidence of a factual dispute that raises the lesser offense and rebuts or negates the greater.
The Court concluded that longstanding Texas common law supports the “acquittal first” approach. Further, in Texas, our statute specifically provides that conviction on a lesser-included offense constitutes an acquittal of the greater offense (absent a jurisdictional defect). This statute further reinforces the conclusion that in Texas, a jury must be required to agree on an acquittal of the greater offense before it can return a conviction on a lesser-included offense. Judges Hervey, Newell, Walker, and McClure concurred without opinion. [Commentary: So, the jury instructions do not violate Beck v. Alabama, 447 U.S. 625 (1980) because the jury gets to consider the entire charge including lesserincluded offense before acquitting of capital murder, but the jury must be instructed not to consider the lesser-included instructions until they have first acquitted the defendant of capital murder?]
Judge Keel filed a concurring opinion, in which Presiding Judge Keller and Judge Slaughter joined. According to Judge Keel, there is a dichotomy in approaches to the “guilty-only” test, one that requires a factual dispute and another that permits lesser-included instructions based on the possible-disbelief of evidence establishing the greater offense. The concurrence agreed Chavez was not entitled to relief, but did not join the opinion. Instead, Judge Keel advocated for reconciling what she identified as competing approaches to determining whether an instruction on a lesser-included offense is warranted.
2. Lesser-included jury instructions for kidnapping and felony murder were not warranted in a capital murder trial where was no affirmative evidence that raised the lesser-included offenses and rebutted or negated evidence establishing the greater offense. The State charged Jose Chavez with capital murder. The evidence showed that Chavez and co-defendants forced two victims into the trunk of a car and took them to Chavez’s family property where ultimately, they were shot and killed by a co-defendant. Chavez requested jury instructions for the lesserincluded offenses of kidnapping and felony murder. The trial court denied the request and the jury Chavez.
Judge Newell filed a concurring opinion joining the Court’s opinion. According to Judge Newell, the Court’s opinion correctly set out and applied the exiting law requiring affirmative evidence negating the greater offense. As for the dichotomy of approaches, Judge Newell reasoned that narrowing the guilty-only test would not be appropriate given that the State is entitled to lesser-included jury instructions without having to satisfy any affirmative evidence requirement. Given this asymmetrical application of a court-made doctrine, Judge Newell noted a better course may be to treat jury instructions like any other procedural issue or at least do away with the guilty-only/valid-rationalalternative-test altogether.
The court of appeals held that the trial court erred because the jury could have rationally found Chavez guilty only of the lesser included based on evidence that showed a co-defendant was the only one with intent to kill the victims. The court of appeals pointed to the co-defendant’s testimony that he alone took the victims to the back of the property and killed them. The court of appeals also noted that the jury could believe testimony that it was a co-defendant’s idea to kill the victims while disbelieving testimony that the group agreed to kill the victims.
Judge Yeary filed a dissenting opinion and advocated for an analysis that would simply ask whether a rational jury could harbor reasonable doubt with regard to an elevating element and, if so, a lesserincluded instruction is warranted. The dissent noted that the guilty-only test is a judicial creation and that exclusively requiring affirmative evidence may create an impermissible burden of production on the
The Court of Criminal Appeals reversed, holding that the court of appeals misapplied the applicable standards for reviewing the propriety of including an instruction on a lesser-included offense in the jury charge. Chavez v. State, --- S.W.3d ---, 2023 WL 26
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it was at least possible that the jury could have relied on the improper definition in convicting Campbell, notwithstanding the inclusion of the other proper theories and definitions. However, based on a complete review of the record in light of the Almanza factors, the trial court’s definition of “intentionally,” if erroneous, was harmless. First, the application section of the charge helped to ameliorate any error within the abstract portion because the application paragraph used language regarding intent to modify the result of Campbell’s conduct. Second, Campbell’s defensive claim was weak because it was contradicted by the entirety of the record. Even if the jury believed Campbell’s testimony, his version of events was not exonerating because his testimony did not address his mental state at the moment Jade died. And finally, the State never argued that Campbell could be convicted based solely on his intent to engage in the conduct. Instead, the jury arguments focused on whether Campbell intended the result—i.e., causing Jade serious bodily injury or death.
defendant. In this case, he concluded that a rational jury could reject the State’s evidence establishing capital murder concluding the jury could rationally doubt that the group decided to kill the victims including the co-defendant’s inconsistent testimony, flight following the crime, and deals with the State. C. Egregious Harm - Defendant was not egregiously harmed by the trial court’s failure to tailor the definition of “intentionally” to the result of Appellant’s conduct. Phillip Andrew Campbell and Alexandria Jade Wright (“Jade”) were friends who entered into an agreement where Jade would have sex with Campbell in exchange for $300. The two rented a room at a Days Inn Hotel for the night on October 5, 2017. Campbell claimed that during sex, they engaged in erotic asphyxiation, otherwise known as choking, to intensify pleasure. Campbell contended that the choking was consensual. Ultimately, Jade died of manual strangulation. The State indicted Campbell or murder under three different theories: (1) Campbell intentionally caused Jade’s death; (2) Campbell knowingly caused Jade’s death; or (3) Campbell intended to cause Jade serious bodily injury and committed an act clearly dangerous to human life that caused her death. Each theory was based on the same conduct: Campbell caused Jade’s death by impeding her normal breathing or circulation of the blood or by applying pressure to her throat or neck. The jury ultimately found Campbell guilty of murder. The jury’s verdict did not indicate which theory the jury relied on in convicting Campbell.
[Commentary: It appears the Court granted review in this case to correct the portion of the court of appeals opinion suggesting that Campbell only suffered “theoretical harm.” In other words, the Court disagreed that Campbell had not suffered any harm, but nevertheless held that he still had not suffered egregious harm. I can already tell you that I will not be talking about this case during the presentation.] VII. SENTENCING A. Where a fine is part of the lawfully-assessed punishment, it must be included in the written judgment, and a court lacks authority to delete such punishment absent some illegality. In separate indictments, a grand jury indicted Stoyan K. Anastassov with two instances of second-degree-felony indecency with a child by sexual contact. The jury found Anastassov guilty of the offenses alleged and assessed his punishment at confinement for nine years on one charge, three years on the other, and a $10,000 fine in each case. The trial court accepted the jury’s verdicts and sentenced Anastassov accordingly.
Campbell appealed his conviction, arguing that the jury charge erroneously defined “intentionally” such that the jury could have convicted him of murder by merely finding that he intended to choke Jade, rather than finding that he intended to harm and/or kill Jade. The court of appeals concluded that the error, if any, was harmless. it reasoned, any harm was merely theoretical because the jury’s general verdict did not specify under which theory it found Campbell guilty, and Campbell therefore could not establish that the jury convicted him based on the erroneous definition.
On direct appeal, the court of appeals sua sponte raised an issue pertaining to the imposition of the two $10,000 fines in the judgments. The court of appeals determined that the imposition of duplicate fines “was
The Court of Criminal Appeals affirmed. Campbell v. State, --- S.W.3d ---, 2022 WL 4360671 (Tex. Crim. App. Sept. 21, 2022) (9:0:0). Writing for a unanimous court, Judge Slaughter explained that that 27
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[Commentary: The Court made the same observation in the Court’s opinion that the concurrence did in the concurring opinion.]
inconsistent with various statutes governing multiple offenses tied together in a single proceeding” and would amount to an “illegal sentence” in one of the cases. To remedy this perceived error, the court of appeals modified the judgment in to delete one of the $10,000 fines as it was “concurrent with” the fine imposed in the other case.
VIII.
APPEALS
A. Mandamus 1. The Court of Criminal Appeals will not entertain an application for mandamus relief unless the Relator has first sought relief from an intermediate court of appeals, absent a compelling reason. This case was a companion case to In re City of Lubbock, --- S.W.3d ---, 2023 WL 1807149 (Tex. Crim. App. Feb. 8, 2023) (discussed above). Lubbock County District Attorney K. Sunshine Stanek sought mandamus relief directly from the Court of Criminal Appeals without having first sought mandamus review from the court of appeals. Stanek did so because she did not learn of this case until after the court of appeals delivered its opinion in the companion case. She argued that this was the type of exceptional circumstance under which the Court should exercise its original mandamus authority because the court of appeals had already heard and ruled on this claim.
The Court of Criminal Appeals reversed. Anastassov v. State, --- S.W.3d ---, 2022 WL 5054846 (Tex. Crim. App. Oct. 5, 2022) (9:0:0). Writing for a unanimous court, Judge Slaughter explained that the court of appeals lacked any authority to modify the trial court’s written judgment which correctly reflected the jury’s lawfully-assessed punishment. A fine is punitive and is part of a defendant’s sentence. Because a fine is part of the sentence, it must be included in the written judgment. Nothing about the fact that Anastassov’s fines were to be discharged concurrently changed this. Under Penal Code Section 3.03, a trial court may order the sentences (which include any fines assessed) to be discharged consecutively or concurrently depending on the particular circumstances. This section provides that multiple “sentences” imposed in a same-criminalepisode proceeding must ordinarily be served concurrently, but subsection (b) provides that for certain offense types, including the offenses at issue here, the trial court may order that the sentences run concurrently or consecutively. The Court summarized that where multiple fines are assessed in a samecriminal-episode prosecution and they are ordered to be discharged concurrently, they discharge in the same manner as concurrent terms of confinement—the defendant pays the greatest amount of fine but receives credit for satisfying all of the multiple concurrent fines. Therefore, the court of appeals lacked any legal justification for deleting one of the two lawfullyassessed fines from the judgements in this case.
The Court of Criminal Appeals dismissed as improvidently granted. In re State ex rel. Stanek, --S.W.3d ---, 2023 WL 1806777 (Tex. Crim. App. Feb. 8, 2023) (8:1:0). Writing for the Court, Judge Newell explained that under Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003), when a court of appeals and the Court have concurrent, original jurisdiction over a petition for a writ of mandamus against the judge of a district or county court, the petition should be presented first to the court of appeals unless there is a compelling reason not to do so. Judge Newell noted that both Stanek and The City of Lubbock sought review of the same court of appeals decision, and the arguments raised by Stanek significantly overlapped those raised by The City of Lubbock. The Court thus decided to treat Stanek’s filing as an amicus brief and dismiss the motion for leave to file as improvidently granted.
Judge Yeary filed a concurring opinion which no one joined. He joined the opinion which only addressed the propriety of a court of appeals deleting a concurrent fine from a judgement. He wrote separately to express his view it is still an open question whether fines for separate offenses committed in the same episode must always be discharged consecutively.
Judge opinion.
Slaughter
concurred
without
written
[Commentary: A unique wrinkle in mandamus jurisprudence here. The Court could have called this the type of extraordinary circumstance that justifies exercising its original mandamus jurisdiction. But it 28
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reasonably expect another attempt by the State of Georgia to secure her attendance for their “special purpose grand jury”, the nature of this proceeding was not the type that rendered Pick’s arguments capable of evading effective judicial review. Judge Newell further explained that because the case is moot, the Court was left with no order to review, and to consider or decide Pick’s arguments in anticipation of future filings would amount to an advisory opinion.
didn’t because the issues could be resolved in In re City of Lubbock, --- S.W.3d ---, 2023 WL 1807149 (Tex. Crim. App. Feb. 8, 2023) (discussed above). This shows how strictly it interprets Padilla v. McDaniel, 122 S.W.3d 805 (Tex. Crim. App. 2003). Presumably, if there is a situation in which a party finds out about a mandamusible . . . mandamusable? mandamuseble? . . . issue after the court of appeals opinion, there would not be any need to seek mandamus review in the court of appeals first. That said, I wonder if this case will ever be cited again given how unique the circumstances were.]
Judge Yeary filed a dissenting opinion joined by Presiding Judge Keller and Judges Walker and Slaughter. In his view, Pick presented at least a prima facie case for the conclusion that she was in fact entitled to mandamus relief. Judge Yeary further stated that to the extent Pick’s complaint is believed to be moot, he was convinced that her circumstances warrant review due to the claim being capable of repetition, yet evading review.
2. Motion for leave to file writ of mandamus to prohibit a Texas citizen from being subpoenaed for a Georgia Special Purpose Grand Jury was moot after the subpoena date passed. Jacki L. Pick filed a motion for leave to file an original writ of mandamus. The Texas Court of Criminal Appeals dismissed the motion as moot. That’s the extent of the Court’s order.
[Commentary: This isn’t really a court opinion and there’s not really any binding law in it. So, I guess I’m just including it because it was such a high profile matter from the Court. As a side note, Relator managed to get all the way to this point with all the documents below, including their arguments, sealed so that the folks in Fulton County had no idea what Relator’s arguments were. That was until the members of the Court decided they had to publish their opinions and thereby unsealed the record in the case. I guess we’ll have to see if folks in Fulton County Georgia change tactics/arguments in response. Exit question: Are the dissenters looking to apply the “one clear result” standard for granting mandamus relief or the “clear abuse of discretion” standard for granting mandamus relief? (For context, read the summary for In re City of Lubbock, --- S.W.3d ---, 2023 WL 1807149 (Tex. Crim. App. Feb. 8, 2023) and the associated commentary). I leave it to you to decide whether the call to “file and set” includes the possibility that mandamus relief would be denied by those calling to “file and set.”]
Judge Richardson filed a concurring opinion. Judge Richardson detailed the chronology of the relevant events as follows. Superior Court of Fulton County Georgia Judge Robert C. I. McBurney issued a Certificate of Material Witness for Pick that compelled/required her attendance and testimony before a “Special Purpose Grand Jury” in the State of Georgia. Pursuant to the Uniform Act to Secure the Attendance of Witnesses from without State in Criminal Proceedings, which was adopted by Texas in the Texas Code of Criminal Procedure Article 24.28, Dallas Criminal District Court No. 1 Judge Magnis ordered Pick to appear before the special purpose grand jury. Judge Richardson agreed with the Court that the motion was moot, but shared the dissent’s concern about whether a special grand jury constitutes the type of grand jury envisioned by the State of Texas when they entered into an agreement that could force a citizen of this State to the State of Georgia for a hearing or investigation beyond the scope of that interstate agreement.
B. Motions for New Trials - When the trial court grants a motion for new trial based only on the bare recitation that “the verdict is contrary to the law and evidence,” the accused may not be tried again for the same offense without violating principles of double jeopardy. Donnell Sledge was charged with
Judge Newell filed a concurring opinion joined by Judges Hervey, Richardson, and McClure. In his view, this case does not fall into the “capable of repetition but evading review” exception to the doctrine of mootness. Judge Newell explained that while Pick could 29
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The Court of Criminal Appeals reversed and remanded to the trial court. Sledge v. State, --- S.W.3d ---, 2023 WL 2395434 (Tex. Crim. App. Mar. 8, 2023) (5:0:4). Writing for the Court, Judge McClure concluded that giving effect to the language at issue, a second prosecution violated principles of double jeopardy. The Court explained that under Texas Rule of Appellate Procedure 21.3, “a defendant must be granted a new trial, or a new trial on punishment,” for many reasons including “when the verdict is contrary to the law and the evidence.” Caselaw from the court states that his provision, standing alone, raises a sufficiency challenge and only a sufficiency challenge. Further, the Supreme Court of the United States has been clear that findings as to legal sufficiency in favor of the accused constitute acquittal. The Court wrote that if, as the State suggests, this Court could imply an alternate meaning whether based on evidence recited in the motion, the arguments presented at the hearing, or the trial court’s oral justifications for its decision to grant the motions, the Court could not do so where the record is silent, or worse yet, absent. Therefore, when a trial or appellate court determines that the evidence is insufficient to support the verdict, the defendant or appellant must be acquitted.
two counts of possession with intent to deliver four grams or more but less than 200 grams of heroin and cocaine, respectively. He was also charged with unlawful possession of a firearm by a felon. A jury convicted him on all three charges. The State sought to enhance punishment with Sledge’s criminal history, but the same jury found all enhancement paragraphs “not true.” Because the enhancements were rejected, Sledge was sentenced to eleven years’ confinement in each case. The trial court subsequently reformed the possession of a firearm by a felon charge to ten years, since the eleven-year sentence fell outside the applicable punishment range. Sledge then moved for a new trial in all three convictions. The motions stated that the verdict was contrary to the law and evidence. The State did not oppose the motions. The trial court granted Sledge’s motion for new trial in all three cases. The State never appealed the trial court’s decision to grant Sledge’s motions for new trial. Neither party provided a record of the first trial. If there was a hearing for the motion for new trial, it was not included in the record of the second trial. Throughout pre-trial matters, all parties appeared to agree that the State would try Sledge again. At arraignment, however, defense counsel contradicted her earlier comments. Defense counsel argued double jeopardy barred a second trial at Sledge’s arraignment. The double jeopardy objection did not appear again in the record. The jury in the second trial ultimately acquitted on the new allegation of aggravated assault from the same series of events, but convicted on all three original charges, and found all of the enhancement allegations to be true. As a result, the jury assessed punishment at twenty-eight years’ confinement in each case, to run concurrently.
The Court also noted that this case should serve as a cautionary tale. Where the parties plan to agree to a motion for new trial, especially without the benefit of a hearing, it would behoove both litigants and the trial court to inspect the contents of the motion. Judge Yeary filed a dissenting opinion. In his view, the court of appeals’ opinion denying rehearing refused to address the claim on the merits. Thus, he wrote that there was no double jeopardy issue before the Court to address on discretionary review, and under these circumstances, this was a prohibited advisory opinion.
On direct appeal, among other things, Sledge argued ineffective assistance of counsel for trial counsel’s failure to object to the enhancement paragraphs in the second trial based on collateral estoppel because the original jury found the paragraphs not true. In response to the court of appeals sustaining Sledge’s first point, the State filed a motion for rehearing, pointing out that the motions for new trial were based on sufficiency of evidence. The State argued that the trial court was required to enter a judgment of acquittal. The court of appeals denied the State’s motion for rehearing.
Presiding Judge Keller, Judge Keel, and Judge Slaughter dissented without written opinion. C. Appellant was judicially estopped from complaining about jury charge error on appeal where trial counsel acquiesced and agreed to the charge during the charge conference. A jury convicted Anthony Ruffins of aggravated robbery and sentenced him to life imprisonment by the trial court. Ruffins and three other men entered a tattoo and piercing shop where they were seen on surveillance 30
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conclusion that Ruffins’s trial counsel was actually requesting a different charge was unpersuasive. Further, Ruffins claim on appeal was inconsistent with his prior conduct because the record reflected that Ruffins’s trial counsel specifically asked the trial court to ensure that the jury be instructed they had to agree “beyond a reasonable doubt” that Hogarth was an accomplice. and was thus prohibited by the doctrine of judicial estoppel.
footage holding guns and concealing their identities with masks, gloves, and hats. During the investigation, officers learned of a man named David Hogarth who was acquainted with some of the suspects. Hogarth ultimately assisted in identifying the robbers based on the surveillance video screenshots. While Hogarth did not take part in the actual robbery, he admitted to being present during conversations planning for the robbery. The jury charge contained an accomplice in fact instruction for Hogarth which instructed the jury that it must find an accomplice in fact to be an accomplice beyond a reasonable doubt. At the charge conference, Ruffins’s trial counsel objected to the accomplice in fact instruction. In response, the trial court read the charge again to Ruffins’s trial counsel. Trial counsel then replied, “I’m good.”
Judge Yeary filed a concurring opinion. In his view, at most, Ruffins failed to properly object to the erroneous instruction, and that is an insufficient basis to justify estoppel. Judge Yeary concluded that the Court still correctly affirmed the trial court because the evidence demonstrated that Ruffins was not entitled to an accomplice witness instruction at all.
On appeal, Ruffins argued, among other things, the charge regarding Hogarth was erroneous because it instructed the jury that it had to find Hogarth to be an accomplice beyond a reasonable doubt. In response, the State argued that Ruffins should be estopped from complaining about the instruction since it was Ruffins who requested the jury be instructed that they had to determine whether Hogarth was an accomplice beyond a reasonable doubt. The court of appeals determined that the reasonable doubt portion of the accomplicewitness application paragraph in the jury charge was erroneous, and that Ruffins suffered egregious harm from the error. The Court of Criminal Appeals reversed and remanded. Ruffins v. State, --- S.W.3d ---, 2023 WL 2669657 (Tex. Crim. App. Mar. 29, 2023) (7:2:0). Writing for the Court, Judge McClure concluded that the court of appeals’ opinion was problematic on two points: (1) its conclusion that defense counsel was actually requesting “an instruction specifying that there must be evidence corroborating Hogarth’s testimony if the jury had a reasonable doubt as to whether or not Hogarth was an accomplice” was not supported by the record; (2) it erred when it insinuated that invited error is the sole form of estoppel. Judge McClure explained that Ruffins’s trial counsel clarified that he wanted an instruction “that they need to believe—when they consider accomplice, they have to agree beyond a reasonable doubt that he is an accomplice.” When he learned that this language was already in the charge, he stated, “I’m good.” Thus, the appellate court’s
Judge Keel concurred without written opinion. D. Deletion of an illegal cumulation order was proper relief where both trial and appellate counsel were ineffective in failing to object and failing to raise the illegal cumulation order on appeal, respectively. James Reed III was convicted of three offenses of second-degree robbery for three different robberies each of which occurred on the same day. Reed was sentenced to twenty years’ imprisonment in each case, with each sentence running consecutively for an aggregate sentence of sixty years in prison. Trial counsel did not object at the time. Appellate counsel filed an Anders brief rather than raise the illegal cumulation order on appeal. Reed filed applications for writs of habeas corpus. In a per curiam opinion, the Court of Criminal Appeals granted relief by deleting the cumulation order. Ex parte Reed, --- S.W.3d ---, 2022 WL 4360192 (Tex. Crim. App. Sept. 21, 2022) (per curiam). Judge Newell filed a concurring opinion joined by Judges Hervey, Keel, and Walker. Judge Newell explained that this case does not undermine Ex parte Carter, 521 S.W.3d 344 (Tex. Crim. App. 2017), which held that a bare challenge to a cumulation order was not cognizable on a writ. As Judge Newell explained, Carter specifically distinguished the claim at issue in that case from a claim of ineffective 31
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suggested that defense counsel might have had a strategic reason for not opposing the amendment.
assistance of counsel for failing to challenge a cumulation order. Further, Judge Newell noted that this case highlights that it is a waste of judicial resources to continue to tinker with the Court’s cognizability jurisprudence.
The Texas Court of Criminal Appeals reversed and remanded. Jefferson v. State, --- S.W.3d ---, 2022 WL 2961846 (Tex. Crim. App. July 27, 2022) (9:1:0). Writing for a unanimous court, Presiding Judge Keller explained that under Martinez v. State, 225 SW.3d 550 (Tex. Crim. App. 2007), an indictment cannot authorize more convictions than there are counts because a “count” is the statutory method of alleging a separate offense in an indictment. So, when the State amends an indictment to add counts, it is adding allegations of separate offenses to the indictment. Trial counsel’s failure to object to the State adding new offenses in the indictment without taking it to the grand jury amounted to ineffective assistance of counsel. The Court rejected the court of appeals assertion that the trial court could have determined on the record that trial counsel nevertheless preserved error. Even taking trial counsel’s actions as an objection, he still failed to memorialize that objection on the record. Finally, the Court rejected the argument trial counsel may have had a strategic reason for not opposing an amendment because that was logically inconsistent with the proposition that trial counsel had objected in the first place.
Judge Yeary filed a dissenting opinion joined by Presiding Judge Keller and Judge Slaughter. Judge Yeary disagreed with the Court’s choice of remedy and viewed it in conflict with Ex parte Carter. Judge Yeary would have granted Reed an out-of-time appeal in which he could challenge the cumulation provisions from the trial court’s judgement in the regular course of appellate proceedings. [Commentary: Notably, everyone below agreed that the Court should just delete the cumulation order. The defendant, the State, and the habeas court. This is why we can’t have nice things.] IX. INEFFECTIVE ASSISTANCE OF COUNSEL A. Counsel’s failure to object to the State adding new offenses to an indictment without taking the new counts to the grand jury amounts to ineffective assistance of counsel. The State indicted Harold Gene Jefferson for one count of sexual assault and one count of indecency with a child. The State then filed a motion to amend the indictment to add two more sexual-assault counts. Defense counsel requested ten additional days to prepare as a result of the change in the indictment, but the record does not reveal an objection by defense counsel to the amendment. The trial court granted the State’s motion.
Judge Yeary filed a concurring opinion. Judge Yeary agreed with the Court’s disposition of the claims that Jefferson raised in his petition for discretionary review. He wrote separately to point out what the court had not been called on to decide and why he would have decided it against the court of appeals. Though Judge Yeary explained that he did not believe Jefferson could be convicted under the added counts of the indictment because the right to have a grand jury indictment is a “waiver only” right.
On appeal, Jefferson complained that the trial court erred in allowing the amendment because he was not indicted by a grand jury for the new counts. Jefferson also complained that counsel was ineffective for failing to object to the amendment or failing to have that objection memorialized in the record. The court of appeals cited Duran v. State, an unpublished court of appeals case stating that an amended indictment does not allege a different or additional offense if it adds another count of the same charged offense. The court of appeals also found that there was a factual dispute about whether counsel objected to the amendment and that it must be assumed that the trial court resolved that conflict in support of its ruling denying Jefferson’s motion for new trial. The court of appeals further
B. Allowing the admission of evidence relating to defendant’s refusal to answer a question during a non-custodial police interview did not amount to ineffective assistance of counsel because the law was unclear at the time of the trial. The State charged Genovevo Salinas Salinas with double homicide. [You read that right, they named him twice]. Salinas’s first trial resulted in a hung jury, but the jury in Salinas’s second trial found him guilty. Salinas had the same trial counsel for both trials. In his post-conviction 32
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“selective silence” is one that many various courts have struggled with and disagreed on. Because the law remains ultimately unsettled, the Court could not conclude that Salinas’s trial counsel performed deficiently for failing to object on due process grounds.
application, Salinas alleged that his trial counsel performed deficiently at his second trial. According to Salinas, trial counsel failed to make a proper objection to the admission of evidence that Salinas did not respond when investigating officers posed one particular, incriminating question during an interview. Trial counsel had objected that this evidence violated Salinas’s Fifth Amendment privilege against incrimination. This argument was pursued on appeal and rejected at every stage, including by the United States Supreme Court.
The Court also rejected Salinas’s argument that trial counsel should have challenged the admission on the basis that he was in custody and that use of his silence violated Article 38.22 of the Code of Criminal Procedure. While the Court acknowledged that this was a closer question, the Court rejected the argument that trial counsel performed deficiently in failing to reassert an Article 38.22, Section 3, objection to Salinas’s entire oral statement⸻including his refusal to answer the “one” question⸻at the second trial. The Court concluded that Salinas did not carry his burden to establish by a preponderance of the evidence that trial counsel’s actions were not the result of sound strategy.
In his post-conviction writ, Salinas argued that trial counsel at the second trial should have objected to the admission of evidence regarding his silence on two additional grounds. First, he argued that trial counsel should have objected that admission of the evidence of his silence violated the Fourteenth Amendment’s Due Process Clause as “fundamentally unfair.” According to Salinas, the use of his silence was unfair because it came after he was cautioned by police that his silence could not be used against him. Second, Salinas argued that trial counsel could and should have kept the evidence of his refusal to answer out because it was elicited as part of an oral statement made while Salinas was in police custody, and such statements are inadmissible as a matter of state law unless they are electronically recorded. The Court of Criminal Appeals denied relief. Ex parte Salinas, --- S.W.3d ---, 2022 WL 16954396 (Tex. Crim. App. Nov. 16, 2022) (5:1:0). Writing for the Court, Judge Yeary explained that trial counsel did not perform deficiently in failing to challenge the admissibility of Salinas’s silence under either under either theory. The Court explained that in Doyle v. Ohio, 426 U.S. 610 (1976) the Supreme Court held that a state may not induce a defendant to stand mute in the face of police questioning by cautioning him of his right to silence and then use his invocation of that right against him to impeach his trial testimony. The facts of Doyle and the facts of this case are distinguishable. Doyle actually did invoke his right to silence after he was “Mirandized” by essentially remaining wholly silent after the warnings were administered. Salinas by contrast, affirmatively acknowledged and waived his right to silence and commenced to answer questions before he was confronted with the question he refused to answer. The Court explained that the issue of
Judge Hervey concurred in the result without an opinion. Judge Walker dissented without an opinion. Judges Newell and Keel did not participate. [Commentary: Salinas’s argument about being in custody when he gave his “silence” is a close issue. In the second trial, Salinas’s counsel essentially agreed (or at least didn’t argue) that Salinas gave a non-custodial statement, arguing instead that using his silence even in a non-custodial situation violated the Fifth Amendment. Salinas made it all the way to the United States Supreme Court and only barely lost. (Five judges affirmed, but three assumed that someone must invoke their Fifth Amendment right to remain silent even in non-custodial situations.) What made this case unique is that Texas requires oral statements to be written or recorded if they are custodial, while many other jurisdictions allow officers to testify about the substance of an unrecorded oral statement. So, I leave it to you with this. Does it make sense as a strategy to keep out evidence of “pre-arrest” silence under the theory that it violates the Fifth Amendment rather than arguing that the entire statement should be kept out because the defendant was actually in custody? Seems defense counsel tried both and neither was successful.] C. A defendant who pleads guilty and signs a certificate waiving his right to appeal suffers no 33
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prejudice even if counsel performed deficiently in failing to file a notice of appeal. Dennis Jacob Castillo pleaded guilty pursuant to a plea bargain. The trial court’s certification form displayed five checkboxes detailing five options regarding the right of appeal. Two options were checked, saying that the case “is a plea bargain case and the defendant has NO right of appeal” and that “the defendant has waived the right of appeal.” Castillo and his trial attorney signed the certification form. No notice of appeal was filed. In his habeas application, Castillo contended that trial counsel was ineffective for failing to file a notice of appeal when he was aware of Castillo’s desire to appeal. Counsel responded that he emailed the trial court and asked that appellate counsel be appointed because trial counsel did not handle appeals. The habeas court found that although trial counsel requested the appointment of appellate counsel, he did not file a notice of appeal. The court also found that Castillo would have timely filed a notice of appeal but for counsel’s mistaken belief that his email notification to the court would suffice to protect Castillo’s right to appeal.
Judges Hervey, Richardson, and Newell concurred without an opinion. Judge Walker dissented without an opinion. C. Counsel could not be found ineffective for rejecting a sudden passion jury instruction where the record on direct appeal was silent as to counsel’s explanation for his actions, which could have included a plausible strategic reason. The State charged Robert Hart with the murder of his daughter’s allegedly abusive ex-boyfriend. At trial, he appeared to pursue a self-defense and defense-of-others strategy based on the victim’s alleged abuse of his daughter and threats toward the family. However, the State focused on a surveillance video recording of the incident, which showed Hart placing a small revolver near the victim’s hand after he collapsed. The jury convicted Hart. At punishment, a sudden passion instruction was included in the jury charge but removed at the request of defense counsel who advised the trial court that the instruction was not supported by the facts. The jury ultimately sentenced Hart to 30 years. A motion for new trial was not filed.
The Court of Criminal Appeals denied relief. Ex parte Castillo, --- S.W.3d ---, 2022 WL 6834494 (Tex. Crim. App. Oct. 12, 2022) (5:3:1). Writing for the Court, Presiding Judge Keller explained that this is not a case where Castillo had a right to appeal and waived it. He did not have a right to appeal to begin with. Under Texas Rule of Appellate Procedure 25.2(a)(2), there are only three situations in which an appeal is allowed in a plea bargain case: (A) those matters that were raised by written motion filed and ruled on before trial, (B) after getting the trial court's permission to appeal, or (C) where the specific appeal is expressly authorized by statute. In no other situation is an appeal authorized, even when the challenge is jurisdictional or is to the voluntariness of the plea. The Court noted that if it were the case that Castillo did have a right to appeal and then waived it, the United States Supreme Court’s decision in Garza v. Idaho 139 S. Ct. 738, 74950 (2019) would control. Garza held that that no appeal waiver serves as an absolute bar to all appellate claims, and further held that prejudice would be presumed if an attorney fails to file a notice of appeal when requested by the defendant. But that was not the case here. Therefore, his attorney’s failure to file a notice of appeal did not prejudice Castillo.
On appeal, Hart argued that counsel was ineffective for rejecting the sudden-passion instruction. The court of appeals agreed and reversed the verdict on punishment. According to the court of appeals, Hart would have been entitled to the instruction and that counsel’s belief that the facts did not support the instructions was incorrect and thus could not be a sound trial strategy. Justice Wise dissented, however. He noted silence of the record as well as the strong presumption in favor of finding trial counsel’s strategy reasonable noting the discretion to pursue one defensive strategy in favor of another. The Court of Criminal Appeals reversed, holding that record was not sufficiently developed to determine whether trial counsel’s representation was deficient. Hart v. State, --- S.W.3d ---, 2023 WL 3082506 (Tex. Crim. App. Apr. 26, 2023) (7:2:0). Writing for the Court, Judge Slaughter noted the “strong presumption” in favor of concluding that counsel actions are the result of “reasonable strategy.” Because counsel had not been given an opportunity to explain his decision, the Court could not hold his performance deficient. The record on direct appeal, given that no motion for new trial raising the ineffective assistance claim had 34
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The Court of Criminal Appeals concluded that Kibler was not entitled to habeas corpus relief. Ex parte Kibler, --- S.W.3d ---, 2022 WL 4360668 (Tex. Crim. App. Sept. 21, 2022) (4:1:1:1:2). Writing for the Court, Judge Newell explained that the record does not support a finding that Kibler was convicted of both offenses “simultaneously.” Rather, the trial court stated that it placed Kibler on deferred adjudication “and entered an order in each case accordingly.” And the fact finding regarding the adjudication proceeding only recited that Kibler was adjudicated guilty and convicted in each case “contemporaneously the same day (during the same proceeding)”. The Court considered the ordinary meaning of the words “before” and “after”, the practical realities of plea practice, and the absence of language requiring sequential commission of offenses or for the defendant to receive each conviction on a different day. The Court concluded that the legislature’s use of “before or after” in the statute does not suggest a categorical exemption from the lifetime registration requirement for sex offenders who have been convicted of two indecencywith-a-child offenses simply because both convictions were “received” during the same proceeding. Finally, the Court explained that the common-law rule for calculating time requiring construing of events that occur on the same day as taking place “at the same time” does not apply to this case because it involves a question about the priority of acts done in the same day rather than a question regarding the computation of time.
been filed, was simply not sufficiently developed to overcome the presumption. The Court agreed with the dissent below that there was a conceivable reasonable trial strategy in attempting to avoid a defensive theory at punishment that could be perceived by the jury as inconsistent with the defensive theory pursed at trial. Thus, the Court reversed the judgment of the court of appeals as to punishment and remanded for consideration of a remaining point of error. Judge Keel and Judge Walker concurred without opinion. X. HABEAS CORPUS A. A defendant who is convicted of multiple charges of indecency with a child by exposure in the same proceeding has received one reportable conviction or adjudication “before or after” another under Article 62.101(a)(4) of the Code of Criminal Procedure and is thus required to register as a sex offender for life. Jonathan Hoss Kibler pleaded guilty to two charges of indecency with a child in 2002. The indictments alleged that the conduct was committed on the same day, March 1, 2000, but against different victims. One of the conditions of Kibler’s probation required him to comply with the Sex Offender Registration Program. In 2006, the State filed motions to adjudicate Kibler’s guilt in both cases. The parties have stipulated that Kibler received one conviction “contemporaneously” with the other. After discharging his sentences in 2008, Kibler received conflicting information regarding the duration of his duty to register as a sex offender. In 2013, Kibler was advised that he was required to register for life based on his two convictions for indecency with a child. However, in 2015, a sex offender registrar identified Kibler as a person required to register for ten years, not life. In 2018, Kibler was once again informed that he was required to register for life.
Judge Yeary filed a concurring opinion. Judge Yeary expressed his disagreement with the idea that statutory construction seeks to determine the collective intent of the legislators who pass the legislation. He also disagreed with the plurality’s use of an analogy to a construction of Section 12.42(d) of the Texas Penal Code that he disagreed with. Presiding Judge Keller filed a dissenting opinion. Presiding Judge Keller would have applied the general principle that judicial acts occurring on the same day are considered to have occurred at the same time. Judge Keller further stated that the Court’s holding imposes a burden on registration authorities to need to review a court-reporter’s record to determine how long someone is required to register.
Kibler filed his application for writ of habeas corpus alleging that he was being improperly required to register as a sex offender for life based on an erroneous interpretation of Article 62.101(a)(4) of the Texas Code of Criminal Procedure. The trial court entered findings of fact and conclusions of law and recommended that Kibler be denied relief.
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concluded that the findings by the habeas court were supported by the record.
Judge Walker filed a dissenting opinion joined by Presiding Judge Keller. In his view, if the Legislature intended for an indecency with a child conviction to result in an automatic life registration requirement it would not have included the temporal “before or after” requirement for multiple convictions. Further, Judge Walker states that the Court’s opinion does not leave room for simultaneous convictions.
Judge Yeary and Judge Newell concurred without written opinion. C. Habeas applicant was not entitled to relief for ineffective assistance of counsel because his claims lacked merit or were not properly preserved. Jaime Covarrubias was convicted of capital murder and sentenced to life in prison for killing his girlfriend, Erica Estrada, and her father, Enrique Estrada. He filed an application for habeas corpus alleging that trial and appellate counsel were ineffective. The habeas court recommended that relief be granted.
Judges Hervey and Keel dissented without an opinion. B. Habeas applicant was able to satisfy second Coty prong and show state actor committed multiple instances of intentional misconduct. Aaron Mathews pleaded guilty to delivery of a controlled substance in an amount less than one gram. He then filed an application for writ of habeas corpus after learning that the police officer who was sole witness against him was under investigation for falsifying evidence and had been relieved from duty. The Court of Criminal Appeals previously filed and set this case to address the requirements for the inference of falsity that this Court adopted in Ex parte Coty 418 S.W.3d 597 (Tex. Crim. App. 2014). The Court remanded the case for the habeas court to determine whether evidence substantiated Mathews’s Coty claim. The particular prong the Court was concerned with was the second Coty prong: whether the state actor “committed multiple instances of intentional misconduct in another case or case.”
The Court of Criminal Appeals denied relief. Ex Parte Covarrubias, --- S.W.3d ---, 2023 WL 379593 (Tex. Crim. App. Jan. 25, 2023) (7:0:1). Presiding Judge Keller wrote for the Court. First, the trial court initially excluded letters written by Erica, but later reversed itself and admitted them. The Court concluded that a complaint about the lateness of the letters was not preserved, and even if it had been, trial counsel was able to use the letters before the jury, so Covarrubias was not harmed. The habeas court found appellate counsel ineffective for failing to raise a complaint about the trial court’s refusal of jury instructions, requested by the defense, on involuntary conduct at the guilt phase and sudden passion at the punishment phase. The Court rejected this recommendation holding that these claims lacked merit. Appellate counsel said he likely did not believe the trial record contained any evidence of involuntary conduct, and he did not raise sudden passion because there was no punishment phase in this case.
The Court of Criminal Appeals granted relief. Ex Parte Mathews, --- S.W.3d ---, 2023 WL 151296 (Tex. Crim. App. Jan. 11, 2023) (7:0:2). Writing for the Court, Presiding Judge Keller explained that since the remand, this Court decided Ex parte Jeffery. In that case, the Court determined that the relevant officer “conducted fictional drug buys, provided false information in the affidavit for the search warrant, and testified falsely at Applicant’s trial that Applicant had admitted ownership of a cell phone found in close proximity to the drugs in this case.” Ex Parte Jeffery combined with evidence of the officer’s misconduct from a 2008 case supported the habeas court’s conclusion that the officer engaged in multiple instances of misconduct and that his conduct in Mathews’s case occurred within roughly the same period of time as the other misconduct. The Court
The habeas court also found both trial and appellate counsel ineffective for failing to complain about a supplemental jury instruction requiring the jury to acquit on the charged offense before considering the lesser-included offense of murder. The Court concluded that the law at the time supported the instruction, and Covarrubias would not be able to show prejudice because the current law also supports the supplemental instruction. The habeas court also found trial counsel to be ineffective for failing to secure Covarrubias’s presence in the courtroom while jury notes were being received 36
U.S. Supreme Court & Court of Criminal Appeals Update Aug. 2022 – April 2023
conviction for which he was confined. The Court reasoned that Dennis’s pleadings sufficiently alleged that Dennis was confined under Article 11.07 of the Code of Criminal Procedure at the time they were filed by virtue of his serving the sentence on his felony conviction. The fact that his sentence discharged during the pendency of his writ did not retrospectively render his pleadings insufficient.
and responses discussed. The Court concluded that Covarrubias could not have been prejudiced because his presence was not required to address the purely legal issues posed in the jury notes, and his presence would not have changed the trial court’s responses. The habeas court also found both trial and appellate counsel ineffective for failing to complain about a biased juror. However, the Court concluded that Covarrubias did not show prejudice because the record did not establish that the juror was actually biased because the juror was not asked if they could follow the law regardless of his personal views.
Having determined that Dennis’s writ application was sufficient, the Court reached the merits of Dennis’s ineffective assistance of counsel claim. The Court considered the habeas court’s findings and concluded that Dennis’s claims were without merit. The Court found Dennis’s trial counsel’s affidavit to be credible and found that Dennis’s claims were in conflict with the record. The Court of Criminal Appeals thus denied relief.
Finally, the habeas court found trial counsel ineffective for failing to impeach or contradict witness’s testimony with testimony or a prior statement from another witness, but the Court concluded that within the context of the statements, it was not clear that there was a material contradiction.
E. Post-Conviction DNA Testing - Appellant did not satisfy his Texas Code of Criminal Procedure Article 64.04 burden because he did not show that it was reasonably probable that he would not have been convicted had certain test results been available during his capital murder trial. Henry Watkins Skinner was charged with capital murder for killing Twila Busby and her two young adult sons. Skinner was convicted and sentenced to death. Skinner filed numerous Chapter 64 motions seeking postconviction DNA testing. The convicting court found that he had not shown that it was reasonably probable that he would not have been convicted had the results been available during his trial. Skinner appealed that finding to the Court of Criminal Appeals. While Skinner’s appeal was pending, he asked the Court of Criminal Appeals to remand the case so that prior DNA test results obtained by the Department of Public Safety (DPS) could be reanalyzed using a new protocol for interpretations of DNA mixtures. The Court of Criminal Appeals remanded, and the convicting court again found against Skinner.
Judge Walker dissented without written opinion. Judge Newell did not participate. D. If a defendant files his application for postconviction habeas corpus relief alleging that he is physically confined pursuant to his conviction, he need not further allege collateral consequences that flow from his conviction. Phillip Timothy Dennis pleaded guilty to felony driving while intoxicated and received a three year sentence pursuant to a plea bargain. In 2018, he filed an application for writ of habeas corpus alleging ineffective assistance of counsel. Upon receiving the 2018 application, the Court of Criminal Appeals remanded the case. The Court however did not receive the supplemental record with findings of fact and conclusions of law from the habeas court until 2020. Dennis’s sentence discharged in 2019 while his writ application was pending. The Court of Criminal Appeals held Dennis’s pleadings were sufficient, but denied relief on the merits of his claims. Ex parte Dennis, --- S.W.3d ---, 2022 WL 17826120 (Tex. Crim. App. Dec. 21, 2022) (9:0:0). Writing for a unanimous Court, Judge Newell explained that in 1995, the Legislature amended Article 11.07 to include collateral consequences in the definition of “confinement.” Given this definition, Dennis did not need to plead a collateral consequence of the conviction because he was seeking relief from a
The Court of Criminal Appeals affirmed. Skinner v. State, --- S.W.3d ---, 2022 WL 5056917 (Tex. Crim. App. Oct. 5, 2022) (9:0:0). Writing for a unanimous Court, Judge Hervey explained that Skinner did not meet his Article 64.04 burden because he had not shown that it was reasonably probable that he 37
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[Commentary: I believe that the defendant may have passed away, so I am not sure whether this case will need to be dismissed or “abated to a higher court.” Assuming it is still good law, this case is certainly fact specific, so I encourage practitioners to read it for themselves. But the bottom line here is that even after re-analyzing DNA evidence under the new and proper protocol, the evidence of guilt was so significant that it’s still unlikely that the new DNA evidence would have resulted in a different outcome.]
would not have been convicted had the test results been available during his trial. Judge Hervey explained that Skinner identified two areas of evidence that were potentially relevant to the Article 64.04 inquiry: (1) the existence of “extraneous alleles” appearing on both sides of the dishtowel that investigators found in the plastic bag on Twila’s living room floor; and (2) the MtDNA testing results for hairs found at the scene. As to the extraneous alleles, testimony established that the procedures used were sensitive enough to collect biological material from an item such as a dishtowel even after it was washed. It can thus pull off too much DNA and leave a mixture of profiles. Therefore, even though Skinner was excluded as a contributor to the partial DNA profiles found, his exclusion did not rule out Skinner as a possible contributor of extraneous alleles at a given locus because every allele could not be accounted for.
F. Federal Habeas - United States Supreme Court opinion reversing Arizona Supreme Court precedent was a significant change Arizona law regarding post-conviction relief; Arizona Supreme Court holding otherwise was such a novel and unforeseeable interpretation so as not to foreclose federal review. John Montenegro Cruz was convicted of murder and sentenced to death. Cruz filed a successive motion for state postconviction relief based on significant change in law relating to the United States Supreme Court’s decision in Lynch v. Arizona, 136 S.Ct. 1818 (2016). Lynch held that an Arizona death-row inmate had a due process right, when future dangerousness was at issue, to a jury instruction that he was not eligible for parole if sentenced to life in prison, despite the possibility of executive clemency. The trial court denied Cruz’s motion. The Arizona Supreme Court ruled that Lynch v. Arizona was not a significant change in law.
Next, Judge Hervey addressed the hairs found. The MtDNA results linked three hairs to the MtDNA profiles of Twila and her two sons. Skinner argued through his expert that the results were exculpatory because the hairs pointed to a maternal relative (i.e., Twila’s maternal uncle, Robert Donnell) as the source since maternal relatives share the same MtDNA profile, and Skinner’s expert excluded the victims as the donors of the hairs based on a visual examination. However, these results had little probative value because the hairs at issue could have come from any of the victims, and the MtDNA test cannot distinguish among the relatives that match the hairs.
The United States Supreme Court vacated and remanded. Cruz v. Arizona, 143 S.Ct. 650 (Feb. 22, 2023) (5:0:4). Writing for the Court, Justice Sotomayor concluded that the Arizona Supreme Court’s holding was an exceptional case where a state-court judgment rests on such a novel and unforeseeable interpretation of a state-court procedural rule that the decision is not adequate to foreclose review of the federal claim, and arguments stating that Lynch was not a “significant change in the law” for Rule 32.1(g) purposes failed to grapple with the basic point that Lynch reversed previously binding Arizona Supreme Court precedent.
Further, tests from blood stains around the house were consistent with the blood of Skinner and the victims. A test of blood on carpet outside the entrance to Twila’s sons’ room revealed unidentified profiles, but this was a high traffic area and could have come from anyone who visited the house. No foreign DNA was present under Twila’s nails or in the vaginal swabs taken. In sum, the circumstantial evidence of Skinner’s guilt presented at his capital murder trial was strong and many of the test results are affirmatively inculpatory.
First addressing the issue of federal review, the Court explained that the Arizona Supreme Court reasoned that Lynch was not a significant change in the law because it relied on Simmons v. South Carolina, 512 U.S. 154 (1994), which was clearly established law 38
U.S. Supreme Court & Court of Criminal Appeals Update Aug. 2022 – April 2023
the reservation in trying to interpret the issue on a statelaw ground that it wasn’t really issuing an opinion on state law grounds. Instead, it was really issuing an opinion based upon federal law so that the defendant could complain in federal court that the Arizona Supreme Court had decided a federal issue that federal courts (including the United States Supreme Court) could review. The dissenters disagree of course because this was interpreting a state procedural rule and didn’t necessarily look like a subterfuge to avoid federal review. And really, how does novelty of a state-law decision make it more federal? A weird case to be sure. Again, this primarily affects federal practitioners. And Arizona practitioners, I guess.]
at the time of Cruz's trial. While the court reasoned that a significant change in the application of a law is not the same as a significant change in the law itself, The Court noted that Arizona can point to no other Rule 32.1(g) decision supporting that distinction, concluding that this interpretation of Rule 32.1(g) is entirely new and conflicts with prior Arizona case law. Further, the Arizona Supreme Court’s interpretation generates a catch-22 for Cruz and other similarly situated capital defendants, because to obtain relief under Rule 32.1(g), a defendant must establish not just a significant change in the law but also that the law in question applies retroactively. Thus, the Arizona Supreme Court's interpretation was so novel and unforeseeable, it could not constitute an adequate state procedural ground for the challenged decision.
XI. FIRST AMENDMENT CASES A. Case involving harassment via electronic communications under Texas Penal Code § 42.07(a)(7) is to be considered by court of appeals with guidance from the Court’s recent opinions in Ex parte Barton and Ex parte Sanders. Jasper Robin Chen was charged with harassment via electronic communications. Chen filed a pre-trial habeas writ application and motion to quash the charging instrument, arguing the electronic harassment statute is facially unconstitutional and also unconstitutional as applied to him under the First Amendment. The trial court ruled that the statute is facially unconstitutional and granted relief. The State appealed and a majority of the court of appeals held the statute to be unconstitutionally overbroad.
Next addressing whether Lynch was a significant change in the law, Justice Sotomayor explained that the fact that Lynch was a summary reversal did not justify the Arizona Supreme Court in treating Lynch differently than other transformative decisions of this Court. Although Lynch did not change this Court's interpretation of Simmons, it did change the operation of Simmons by Arizona courts in a way that matters for Rule 32.1(g). And it makes no difference that Lynch did not alter federal law. Justice Barrett filed a dissenting opinion, in which Justice Thomas, Justice Alito, and Justice Gorsuch joined. Justice Barrett wrote that the decision is jarring, because the bar for finding inadequacy is extraordinarily high. Justice Barrett noted that when the argument is based on the state court's inconsistent or novel application of its law, the bar is met only by a decision so blatantly disingenuous that it reveals hostility to federal rights or those asserting them. Justice Barrett concluded that cases of inadequacy are extremely rare, and this is not one.
The Court of Criminal Appeals vacated the judgment of the court of appeals and remanded the case to the court of appeals for further consideration in light of with Ex parte Barton, ___ S.W.3d ___; 2022 WL 1021061 (Tex. Crim. App. 2022) and Ex parte Sanders, ___ S.W.3d ___; 2022 WL 1021055 (Tex. Crim. App. 2022) in which the Court held the statute constitutional on its face. Ex parte Chen, --- S.W.3d ---, 2022 WL 17171098 (Tex. Crim. App. Nov. 23, 2022) (per curiam).
[Commentary: This case will be of primary interest to federal practitioners. And Arizona practitioners I guess. But as I am only federally-adjacent, the opinion confused me a little. The Court doesn’t explain (probably because this would be obvious to federal practitioners) that federal courts would not be able to address a defendant’s claim if it is based upon an independent state law ground. What the Court holds in this case is that the Arizona Supreme Court was so off
B. Case involving harassment via electronic communications under Texas Penal Code § 42.07(a)(7) is to be considered by court of appeals with guidance from the Court’s recent opinions in Ex parte Barton and Ex parte Sanders. Thomas 39
U.S. Supreme Court & Court of Criminal Appeals Update Aug. 2022 – April 2023
testing sought and the trial court denied the motion. Reed appealed and the Court of Criminal Appeals affirmed the denial and Reed’s motion for rehearing. Reed v. State, 541 S.W.3d 759 (Tex. Crim. App. 2017). Reed then filed a § 1983 claim against the District Attorney in federal court challenging the Chapter 64 denial as unconstitutional. A federal district court dismissed the complaint. Reed v. Goertz, No. A-19CV-0794-LY, 2019 WL 12073901 (W.D. Tex. Nov. 15, 2019). The Fifth Circuit affirmed the district court’s dismissal of Reed’s § 1983 claim finding that it was filed after the applicable two-year statute of limitations, which it concluded began to run when the trial court denied Reed’s motion. Reed v. Goertz, 995 F.3d 425 (5th Cir. 2021).
George Griswold, III was charged with stalking by engaging in conduct that is an offense under Texas Penal Code Section 42.07 and/or engaging in conduct he knew or reasonably should have known the complainant would regard as threatening bodily injury or death and did cause the complainant to fear bodily injury or death. Griswold filed a pre-trial motion to quash the indictment, arguing the stalking statute is facially unconstitutional as vague and overbroad due to its incorporation of section 42.07(a)(7) (electronic harassment). In a per curiam opinion, the Court of Criminal Appeals vacated the judgment of the court of appeals and remanded the case to the court of appeals for further consideration in light of with Ex parte Barton, ___ S.W.3d ___; 2022 WL 1021061 (Tex. Crim. App. 2022) and Ex parte Sanders, ___ S.W.3d ___; 2022 WL 1021055 (Tex. Crim. App. 2022) in which the Court held the statute constitutional on its face. Griswold v. State, --- S.W.3d ---, 2022 WL 16626079 (Tex. Crim. App. Nov. 2, 2022) (per curiam).
The United States Supreme Court reversed the Fifth Circuit concluding Reed had standing to bring his claim for relief against state officials, in this case the district attorney, acting in their official capacities. Reed v. Goertz, 143 S.Ct. 955 (Apr. 19, 2023) (6:0:1:2). The sole question before the Supreme Court, however, was whether the § 1983 claim was timely. The Court concluded that Reed’s claim that the State failed to provide him a fundamentally fair process was complete, and the statute of limitations began to run, when the State litigation ended, which occurred when this Court denied his motion for rehearing.
[Commentary: Note that the United States Supreme Court denied cert. in both Ex parte Barton and Ex parte Sanders in Barton v. Texas, --- S.Ct ---, 2023 WL 2123749 (Feb. 21, 2023). I didn’t include the hyperlink on this because it’s just a big, long order that you have scroll through. It is worth noting that the State in both cases argued that these were pre-trial writs and should not be reviewed by the Supreme Court because they are interlocutory orders.]
Justice Thomas dissented concluding that the claim lacked subject-matter jurisdiction because the original action in federal court seeks what is essentially appellate review of the state judgment. Reed’s § 1983 action alleges that his due process rights are violated by the reasoning applied in his case to deny his Chapter 64 motion. Judge Thomas concludes such an action relates not to the district attorney but rather to how the courts interpreted and applied Chapter 64, and the federal district court had no jurisdiction over such a claim.
XII. § 1983 AND OTHER FEDERAL SUITS A. The statute of limitations on a § 1983 procedural due process claim begins to run when state litigation ends, which in this case was when the Texas Court of Criminal Appeals denied motion for rehearing following his appeal from the trial court’s denial of his motion for DNA testing. A jury convicted Rodney Reed was convicted of capital murder and the trial court sentenced him to death based upon the jury’s answers to the special issues. The Court of Criminal Apepals affirmed his conviction and his state and federal post-conviction applications were denied.
Justice Alito, joined by Justice Gorsuch, dissented disagreeing with the majority’s conclusion about when the statute of limitations began to run. The dissent noted the possibility that the claim against the district attorney accrued when the prosecutor first refused Reed’s request for testing or when the trial court denied the motion. Ultimately, however, concluding that between the date of this Court’s decision and denial of rehearing, the statute of limitations began to run at on
In 2014, Reed sought DNA testing on over 40 pieces of evidence pursuant to Chapter 64. The State opposed the motion with regard to the majority of 40
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the date of the high court decision and thus, Reed’s claim was untimely. [The. End.]
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U.S. Supreme Court & Court of Criminal Appeals Update Aug. 2022 – April 2023
Judge David Newell was elected to the Court of Criminal Appeals on November 4, 2014. The son of Thomas and Linda Newell, David was born at the Bethesda Naval Hospital in Maryland, though he grew up in Sugar Land, Texas with his much taller, older brother, Robert Newell. David graduated cum laude from William P. Clements High School. He earned his undergraduate degree in English with a concentration in Creative Writing at the University of Houston. He graduated magna cum laude, earning University honors and honors in his major. He received his J.D. from the University of Texas School of Law in 1997 before returning home to work in the Fort Bend County District Attorney's Office. He served as an appellate prosecutor for 16 years, first in Fort Bend County and later in the Harris County District Attorney's Office from 2007 until his election to the Court. Judge Newell has twice served as the Chairman of the Editorial Board for the Texas District and County Attorney's bi-monthly journal, The Texas Prosecutor. He also co-authored a regular byline for the journal, "As the Judges Saw It," a column that analyzed and summarized the significant decisions of the Court of Criminal Appeals and the United States Supreme Court. He served repeatedly on the planning committee for the Advanced Criminal Law Course for the State Bar of Texas. And he has presented the Court of Criminal Appeals Update at the Texas Conference on Criminal Appeals, the TDCAA Criminal and Civil Law Update, and the Texas State Bar's Advanced Criminal Law Course. On the Court, he served as the Chairperson of the Court of Criminal Appeals Rules Advisory Committee from 2019-2022. He is also the co-course director, along with Judge Barbara Hervey, for the “Robert O. Dawson Conference on Criminal Appeals,” a biennial criminal appellate seminar for the University of Texas School of Law CLE. Judge Newell is board certified by the Texas Board of Legal Specialization in both criminal law and criminal appellate law. He is also licensed by the State Bar of Texas and admitted to practice before the Fifth Circuit Court of Appeals and the United States Supreme Court. In 2013, David received the C. Chris Marshall Award for Distinguished Faculty from the Texas District and County Attorneys' Association. In 2021 he received the Exemplary Speaker Award from the Texas Center for the Judiciary. That same year he was nominated for and elected to membership in the American Law Institute. David and his beautiful wife, Shayne, currently live in the Houston area with their two sons.
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Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Federal Pre-trial Motions
Speaker:
Michael P. Heiskell, Esq. Johnson, Vaughn & Heiskell 5601 Bridge St Ste 220 Fort Worth, TX 76112 817.457.2999 phone 817.496.1102 fax mheiskell@johnson-vaughn-heiskell.com email johnson-vaughn-heiskell.com - Home website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
FEDERAL PRE-TRIAL MOTIONS
Michael P. Heiskell, Esq. JOHNSON, VAUGHN, & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 (817) 496-1102 facsimile Website: www.johnson-vaughn-heiskell.com
TCDLA RUSTY DUNCAN June 15-17, 2023 San Antonio, TX
Michael P. Heiskell JOHNSON, VAUGHN & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 (817) 496-1102 Facsimile E-mail: mheiskell@johnson-vaughn-heiskell.com Website: www.johnson-vaughn-heiskell.com Rated “AV” and recognized by Martindale-Hubbell in Bar Register of Preeminent Lawyers for 20 consecutive years (1999-2019). Named one of Texas Super Lawyers each year since 2003; Name “2022 Baylor Lawyer of the Year” (the first for a criminal defense lawyer). Practice Area: Criminal Law (White Collar); Administrative, Government Law and Civil Rights Admitted: 1974, Texas; U.S. District Court, Northern, Southern, Eastern and Western Districts of Texas; U.S. Court of Appeals, Fifth and Federal Circuits; U.S. Supreme Court Law School: Baylor University, J.D., 1974 College: Baylor University, B.A., 1972 Member: President-Elect of National Association of Criminal Defense Lawyers (NACDL); White Collar Crime Committee of NACDL, as well as the Budget and Audit Committee; Former Member, Board of Trustees of the Texas Bar Foundation and Executive Committee Member; Past-Chair, U.S. Court Advisory Committee, Northern District of Texas; Texas Criminal Defense Lawyers (former President); Tarrant County Criminal Defense Lawyers (“TCCDLA”) (former President); former member of the Board of Directors of the Tarrant County Bar Association; 2011Course Director of the State Bar of Texas’ Advanced Criminal Law Course; Past Course Director for three (3) TCDLA “Rusty Duncan” Advanced Criminal Law Courses.” Biography: Former Galveston County Assistant District Attorney; Former Assistant U.S. Attorney, Northern District of Texas; Recipient, “Lawyer of the Year Award,” Tarrant County Black Bar Association, 1995 and 2000. Frequent author and lecturer on all aspects of State and Federal Court practice, e.g., Attorney Client Privilege Issues, Grand Jury Litigation, Pre-Trial Motions, Plea Negotiations, Opening Statements, Privileges, Confessions, Jury Selection, Handling High Profile Cases, Direct Examination, Cross-Examination and Ethics. 2015 Inductee into Texas Criminal Defense Lawyer’s Association Hall of Fame. Recipient of the 2020 Blackstone Award by the Tarrant County Bar Association. Has spoken frequently before the Advanced Criminal Law Course sponsored by the State Bar of Texas and to numerous seminars sponsored by the Texas Criminal Defense Lawyer’s Association, Texas Center for the Judiciary, and the Federal Public Defender’s Annual Federal Practice Seminar. Has also presented to the NACDL, Louisiana Association of Criminal Defense Lawyers, Dallas County Criminal Defense Lawyers, San Antonio Criminal Defense Lawyers, Mexican-American Bar Association and the Tarrant County Bar Association. He has also been recognized in “Texas Lawyer” as one of the “Extraordinary Minorities in Texas Law.”
TABLE OF CONTENTS BACKGROUND INTRODUCTION, PURPOSE AND FEDERAL RULES
1
LOCAL CRIMINAL RULES- NORTHERN, SOUTHERN, EASTERN AND WESTERN DISTRICTS OF TEXAS (EXCERPTS)
6
US DOJ MANUAL RE: DISCOVERY ISSUES
22
DETENTION MOTION FOR DISCOVERY IN AID OF DETENTION HEARING
50
MOTION FOR EXPEDITED REVIEW OF DETENTION ORDER AND MEMORANDUM
52
MOTION FOR AMENDMENT OF THE CONDITIONS OF RELEASE
54
DISCOVERY SUPPLEMENTAL DISCOVERY LETTER
56
OMNIBUS MOTION FOR DISCOVERY
60
MOTION FOR DISCLOSURE RE: GOV’T’S “FILTER TEAM” AND 3RD PARTY VENDORS INVOLVED IN DISCOVERY REVIEW AND PRODUCTION
65
UNOPPOSED JOINT MOTION TO APPOINT COORDINATING DISCOVERY ATTORNEY
66
UNOPPOSED MOTION TO CONTINUE TRIAL DUE TO COMPLEXITY
68
MOTION FOR DISCOVERY OF DETECTOR DOG INFORMATION AND REFERENCED SUPPRESSION MOTION
70
MOTION FOR LIST OF WITNESSES AND WITNESSES STATEMENTS
73
MOTION TO COMPEL DISCLOSURE OF IDENTITY OF CONFIDENTIAL INFORMANTAND BRIEF
75
MOTION FOR BILL OF PARTICULARS
78
MOTION TO STRIKE SURPLUSAGE
79
MOTION AND BRIEF IN SUPPORT OF PRE-TRIAL PRODUCTION OF ALL JENCKS ACT MATERIAL
85
i
MOTION AND BRIEF FOR PRE-TRIAL DISCLOSURE OF ALL EVIDENCE THE GOVERNMENT INTENDS TO OFFER PURSUANT TO RULE 404(b) OF THE FEDERAL RULES OF EVIDENCE
86
MOTION TO PRESERVE AGENTS’ NOTES AND BRIEF IN SUPPORT
87
MOTION AND BRIEF TO REQUIRE THE GOVERNMENT TO COMPLY WITH RULE 106, FEDERAL RULES OF EVIDENCE
89
MOTION TO TAKE DEPOSITIONS PURSUANT TO 18 U.S.C. § 3503 AND RULE 15 OF THE RULES OF CRIM. P. AND MEMORANDUM
90
MOTION FOR LEAVE TO SERVE SUBPOENA DUCES TECUM UNDER RULE 17(c) WITH ORDER
91
MOTION TO PRESENT WITNESSES BY VIDEO CONFERENCE
94
MOTION FOR AUTHORIZATION TO MAKE LIMITED DISCLOSURE OF CONTENTS OF THE PRESENTENCE INVESTIGATION REPORT OF GOVERNMENT WITNESS
96
MOTION TO DISQUALIFY ASSISTANT UNITED STATES ATTORNEY
97
DISMISSAL MOTION AND BRIEF TO DISMISS (MISCONDUCT BEFORE GRAND JURY)
102
MOTION AND BRIEF TO DISMISS COUNTS EIGHT AND NINE OF THE SUPERCEDING INDICTMENT (MULTIPLICITIOUS INDICTMENT)
104
MOTION AND BRIEF IN SUPPORT OF MOTION TO DISMISS COUNT ONE AS DUPLICITOUS
105
SEVERANCE MOTION AND BRIEF FOR SEVERANCE OF COUNTS
107
MOTION AND BRIEF FOR SEVERANCE OF DEFENDANTS
108
SUPPRESSION UNOPPOSED MOTION FOR LEAVE TO FILE MOTION TO SUPPRESS STATEMENTSAND MEMORANDUM (MOTION INCORPORATED)
112
MOTION TO SUPPRESS AND SUPPORTING BRIEF
114
ii
MOTION TO SUPRESS TITLE III COMMUNICATIONS FOR FAILING TO COMPLY WITH SEALING REQUIREMENTS
117
BRIEF IN SUPPORT OF TITLE III SUPPRESSION
119
JURY ISSUES REQUEST FOR ADDTIONAL PEREMPTORY CHALLENGES (Rule 24(b) Fed. R. Crim. Proc.
123
MOTION FOR DISCLOSURE OF PROSPECTIVE JUROR INFORMATION
124
REQUEST TO SUBMIT ONE (1) PAGE JUROR QUESTIONNAIRE
126
MOTION FOR SPECIFIC INQUIRY OF PROSPECTIVE JURORS
129
LIMINE MOTION IN LIMINE AND INCORPORATED BRIEF
131
MISCELLANEOUS MOTIONS AND ISSUES MOTION TO IMMEDIATELY DISLCOSE INFORMANT, AGENT & PROSECUTOR CONTACT
139
BRIEF IN SUPPORT OF MOTION TO DISCLOSE CONTACT
140
MOTION TO PRECLUDE IMPEACHMENT OF DEFENDANT WITH EVIDNCE OF PRIOR CONVICTIONS
142
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO PRECLUDE IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR CONVICTIONS 143 MOTION UNDER RULE 201 FED.R.EVID. (JUDICIAL NOTICE)
144
POST TRIAL MOTIONS AND ISSUES RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL
146
RULE 33 MOTION FOR NEW TRIAL
158
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FEDERAL PRETRIAL MOTIONS BY MICHAEL P. HEISKELL I.
INTRODUCTION Thoughtful and aggressive pretrial motions can potentially shift the odds that favor the government in its prosecution. However, successful motions rarely field any immediate victories. They can play an important role yielding strategic dividends such as obtaining discovery, educating and sensitizing the Court to your defensive positions, or controlling the timing and content of the trial. So, even when the defense loses a motion there are often benefits to litigating it. Every pretrial motion is, in essence, a discovery motion and it must be treated as such as you seek to gain all the information possible that lies behind the prosecution of your client. With adequate thought and planning pretrial motions can combine with an overall defensive strategy to improve trial logistics and procedures in your favor.
II.
III.
PURPOSE OF DEFENSE PRETRIAL MOTIONS A.
To challenge and contest indictments;
B.
To seek discovery of relevant materials; and
C.
To seek suppression of said material when warranted.
D.
To “win” the case.
E.
To make appellate record.
TIME TO FILE PRETRIAL MOTIONS A.
B.
Rule 12(c), Fed. R. Crim. P. 1.
Deadline normally set by court at arraignment or shortly thereafter in its Pretrial Order. If not set at this point then deadline is start of trial.
2.
Court has discretion to extend or reset deadlines for filings.
3.
Rule 12(b)(4)(B) allows a defendant at the arraignment to request notice of government’s intent to use any evidence in its case in chief that the defendant may be entitled to discover under Rule 16.
Rule 47, Fed.R. Crim. P.
Party must serve a written motion and any hearing notice at least seven (7) days before the hearing unless a rule or the Court sets a different period. Page 1 of 166
C.
Check Local Rules, (e.g. Western District Local Rule CR-12 (14 days after arraignment)).
D.
Failure to Timely File; Rule 12 (b)(3), Fed.R.Crim.P. Can result in adverse ruling unless good cause is shown for the untimeliness of the filing.
IV.
MOTIONS THAT MUST BE MADE PRIOR TO TRIAL A.
Defect in instituting proceedings, including: 1. 2. 3. 4. 5.
B.
Defect in Indictment, including: 1. 2. 3. 4. 5. 6.
Duplicitous indictment (2 or more offenses in same count); Multiplicitous indictment (same offense in more than one count); Lack of specificity; Improper joinder; and Failure to state offense. Surplusage
C.
Suppression of Evidence
D.
Severance of Charges or Defendants
E.
Discovery (Rule 16) 1.
V.
Improper Venue; Pre-Indictment Delay; Speedy Trial Violation; Selective or Vindictive Prosecution; and Grand Jury or Preliminary Hearing Error
Reciprocal Allowed under Rule 16(b)
SPECIFIC RULES REGARDING ALIBI, INSANITY, PUBLIC AUTHORITY DEFENSES A.
(1) Rule 12.1(a), Fed.R.Crim.P. allows the government to request in writing that the defendant notify it of any intended Alibi Defense. Such request must state the time, place and date of the offense within 14 days of such a request or some other time in the court’s discretion, the defendant must serve written notice of the alibi defense by stating: (1) each specific place where the defendant claims to have been at the time of the alleged offense and (2) the names, addresses and phone numbers of each alibi witness on whom the defendant intends to rely. (2) Rule 12.1(b), Fed.R.Crim.P. allows a defendant to serve a 12.1 (a) notice on the government in order to obtain the names, addresses, and phone numbers of each witness—other than the alleged victim unless a need is shown the government intends to rely on to establish the defendant’s presence. Page 2 of 166
(3) B.
Failure to comply can result in the exclusion of the witness from testifying.
(1) Rule 12.2(a), Fed.R.Crim.P. requires a Notice of Insanity Defense be served on the government in writing within the time for filing pre-trial motions or any later time the court sets. Any failure to do will result in a denial of this defense to be asserted at trial. (2) Rule 12.2(b), Fed.R.Crim.P. also requires a Notice of Expert Evidence of a Mental Condition be served on the government in writing within the time for filing pretrial motions or any later time the court sets. Failure to do so may result in exclusion of this evidence.
C.
Rule 12.3, Fed.R.Crim.P. requires a Notice of Public Authority Defense be served on the government within the time for filing pre-trial motions or at any later time the court sets. Such a notice must contain: (1) (2) (3)
the law enforcement agency or federal intelligence agency involved; the agency member on whose behalf the defendant claims to have acted; and the time during which it is claimed the defendant acted with public authority.
The same rules regarding the government’s request and the defendant’s response found in Rule 12.1, Fed.R.Crim.P.(Alibi Defense) applies here as well. VI.
GOVERNING RULES A.
Substantive Federal Rules (All under Fed. R.Crim. P., except as otherwise noted) 1. Rule 5(f)(1) (Reminder of Prosecutorial Obligation on Discovery); 2. Rule 5.1(a)( Preliminary Hearing0: 3.
Rule 12, (Primary Rule);
4. Rule 16, (Discovery and Inspection); 5.
Rule 5.1(a) (Preliminary Hearing);
6. Rule 7(f) (Bill of Particulars) (must move for same within 14 days after arraignment or at a later time if the court permits); 7. Rule 12(b)(4)(B) (Notice Request of Government’s Intent to Use Evidence); 8. Rule 12(h) (Suppression Hearing Witness Statements); 9. Rule 12.1 (Reciprocal Discovery of Alibi Defense Witnesses); 10. Rule 12.3 (Reciprocal Discovery of Public Authority Defense Witnesses); 11. Rule 17 (Subpoena to Third Party); Page 3 of 166
12. Rule 26.2 (Production of Witness’ statement during trial) 13. Rule 32 (Probation Revocation or Supervised Release Revocation); 14. Rule 46(j) (Detention Hearing Witness Statements); 15. Rule 404(b), Fed. R. Evid. (Notice of other Crimes, Wrongs or Acts); 16. Rules 413 and 414, Fed.R.Evid.; (Notice of Similar Acts Witness Statements or summaries); 17. Rule 807, Fed. R. Evid. (Hearing Statement under Residual Exception); 18. 18 U.S.C.§ 3500 (Jencks Act); 19. Brady & Gigilo B.
Federal Rules (Form and Content) 1. Rule 47, Fed. R. Crim. P.
C. VII
Local Rules (see excerpts, infra.).
POST TRIAL MOTIONS A.
Rule 29 Motion for Judge of Acquittal (a)
Before submission to Jury: After government closes its evidence or after the close of all the evidence the Court on defendant’s motion must enter a judgment of acquittal for why offense for which the evidence is insufficient. The court may on its own do the same and may reserve the decision. See Rule 29(b)
(b)
After Jury Verdict or Discharge
Defendant may move for same within 14 days. See Rule 29(c) (c)
Conditional Ruling on a Motion for New Trial If the Court enters judgment of acquittal after a guilty verdict the court must conditionally determine whether a new trial should be granted if the judgment is later vacated or reversed. See Rule 29(d)
B.
Rule 33 Motion for New Trial
Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if required by the interest of justice. Page 4 of 166
It must be filed within 14 days after the verdict. If newly discovered evidence is the basis then 3 years after the verdict VIII.
PRACTICE TIPS A.
Formulate a trial plan or strategy and use motions to advance same.
B.
Organize legal memo files, checklist and loose leaf notebook so that necessary legal authorities can be readily found.
C.
Avoid Boilerplate Motions—be creative, unique and use affidavits whenever possible
D.
Review Fifth Circuit Pattern Jury Instructions.
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LOCAL CRIMINAL RULES OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS (Effective September 1, 2021)
LCrR 1.1
Definitions.
Unless the context indicates a contrary intention, the following definitions apply in these rules: (a) Court. The word “court” means the district judges of the United States District Court for the Northern District of Texas, as a collective body. (b) Presiding Judge. The term “presiding judge” means the judge to whom a case is Assigned. The word “judge” includes district judges and magistrate judges. (c)
(d)
Attorney. The word “attorney” means either: (1)
a person licensed to practice law by the highest court of any state or the District of Columbia; or
(2)
a party proceeding pro se in any criminal action.
Clerk. The word “clerk” means the clerk of this court.
(e) ECF. The term “ECF” means electronic case filing and refers to the court’s web- based document filing system that allows a document to be transmitted, signed, or verified by electronic means in a manner that is consistent with technical standards established by the Judicial Conference of the United States. (f) Judge’s Copy. The term “judge’s copy” means a paper copy of an original pleading, motion, or other paper that is submitted for use by the presiding judge. LCrR 16.1
Exchanging Exhibits, Exhibit Lists, and Witness Lists.
(a) Exchanging Exhibits. All exhibits, except those offered solely for impeachment, that a party intends to offer at trial, must be marked with gummed labels or tags that identify them by the exhibit number under which they will be offered at trial, and must be exchanged with opposing parties at least 14 days before the scheduled date for trial. When practicable, a copy of such exhibits must be furnished to the presiding judge. (b) Exchanging Exhibit and Witness Lists. At least 14 days before the scheduled date for trial, the parties must file with the clerk and deliver to opposing parties and the Page 6 of 166
court reporter, separate lists of exhibits and witnesses, except those offered solely for impeachment. LCrR 23.1 Proposed Findings in Nonjury Cases. Unless otherwise directed by the presiding judge, at least 14 days before trial in all nonjury cases, parties must file with the clerk and serve on opposing parties proposed findings of fact and conclusions of law. The parties must submit such amendments to the proposed findings of fact and conclusions of law as the presiding judge directs. LCrR 24.1
Contact with Jurors.
A party, attorney, or representative of a part or attorney, shall not, before or after trial, contact any juror, prospective juror, or the relatives, friends, or associates of a juror or prospective juror, unless explicitly permitted to do so by the presiding judge. LCrR 30.1
Requested Jury Charge.
Unless otherwise directed by the presiding judge, at least 14 days before trial, each party must file with the clerk and serve on opposing parties the requested jury charge, including instructions. The requested instructions should cite the authorities relied on. LCrR 32.1
Nondisclosure of Recommendation.
A probation officer shall not disclose any recommendation regarding the sentence. LCrR 45.1
Time Deemed Filed.
A pleading, motion, or other paper that is filed by electronic means before midnight central time of any day will be deemed filed on that day. A pleading, motion, or other paper that is filed on paper before the clerk’s office is scheduled to close on any day will be deemed filed on that day. LCrR 47.1
Motion Practice.
Unless otherwise directed by the presiding judge, motion practice is controlled by subsection (h) of this rule. In addition, the parties must comply with the following: (a) Conference. Before filing a motion, an attorney for the moving party must confer with an attorney for each party affected by the requested relief to determine whether the motion is opposed. Conferences are not required for motions to dismiss the entire action or indictment, or when a conference is not possible.
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(b) Certificate of Conference. 1.
Each motion for which a conference is required must include a certificate of conference indicating that the motion is unopposed or opposed.
2.
If a motion is opposed, the certificate must state that a conference was held, indicate the date of conference and the identities of the attorneys conferring, and explain why agreement could not be reached.
3.
If a conference was not held, the certificate must explain why it was not possible to confer, in which event the motion will be presumed to be opposed.
(c) Proposed Order. An unopposed motion must be accompanied by an agreed proposed order, signed by the attorneys or parties. An opposed motion that is submitted on paper must be accompanied by a proposed order, set forth on a separate document, unless an order is not required by subsection (h) of this rule. (d) Brief. An opposed motion must be accompanied by a brief that sets forth the moving party’s contentions of fact and/or law, and argument and authorities, unless a brief is not required by subsection (h) of this rule. A response to an opposed motion must be accompanied by a brief that sets forth the responding party’s contentions of fact and/or law, and argument and authorities. A responding party is not required to file a brief in opposition to a motion for which a brief is not required by subsection (h) of this rule. (e) Time for Response and Brief. A response and brief to an opposed motion must be filed within 14 days from the date the motion is filed. (f) Reply Brief. Reply briefs may not be filed unless the moving party requests, and the presiding judge grants, leave to do so. If leave is granted, the reply brief shall be filed no later than the deadline set by the presiding judge. (g) No Oral Argument. Unless otherwise directed by the presiding judge, oral argument on a motion will not be held
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(h)
Uniform Requirements on Motion Practice. B - Brief required (not required with agreed motion) C - Certificate of conference required O Order required MOTION (to/for) CHANGE OF VENUE COMPEL CONSOLIDATION CONTINUANCE DISMISS EXTEND TIME JUDGMENT OF ACQUITTAL LEAVE TO FILE LIMINE NEW TRIAL PRODUCE DOCUMENTS PROTECTIVE ORDER QUASH SANCTIONS SUBSTITUTE COUNSEL
B X X X
C X X X X
O X X X X
X
X
X X X X
X X
X X X
X X X X
X X X X
X X X X
X X X
X X X
X
TRANSFER WITHDRAW
NOTE: If a motion is not listed, a brief, certificate of conference, and an order are required.
LCrR 47.2
Briefs.
(a)
General Form. A brief must be printed, typewritten, or presented in some other
legible form. The brief must be on an 8½-by-11-inch page. The font size must be 12point or larger. The text must be double-spaced, but quotations more than two lines long may be indented and single-spaced. Headings and footnotes may be single- spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there.
(b)
Amicus Briefs. An amicus brief may not be filed without leave of the presiding judge. The brief must specifically set forth the interest of the amicus curiae in the outcome of the litigation. Page 9 of 166
(c)
Length. A brief must not exceed 25 pages (excluding the table of contents and table of authorities). A reply brief must not exceed 10 pages. Permission to file a brief in excess of these page limitations will be granted by the presiding judge only for extraordinary and compelling reasons.
(d)
contain:
LCrR 47.3
Tables of Contents and Authorities. A brief in excess of 10 pages must
(1)
a table of contents with page references; and
(2)
an alphabetically arranged table of cases, statutes, and other authorities cited, with page references to the location of all citations.
Confirmation of Informal Leave of Court.
When a presiding judge informally grants leave, such as an extension of time to file a response, an attorney for the party to whom leave is granted must file a document confirming the leave and must serve the document on all other parties. LCrR 47.4
Motion Practice in Cases Seeking Post-Conviction Relief.
Motion practice in a prisoner application, motion, or petition filed under 28 U.S.C. § 2241, § 2254, or § 2255 is governed by the local civil rules. LCrR 49.1
Filing Criminal Cases.
When a criminal case is filed, the United States must also submit, for each defendant, a criminal-case cover sheet, in the approved form. LCrR 49.2
Filing and Serving Pleadings, Motions, or Other Papers. (a) Filing with the Clerk. Except for discovery material, a pleading, motion, or other paper that the Federal Rules of Criminal Procedure permit or require to be filed, that is submitted on paper, must be filed with the clerk’s office for the appropriate division. Such pleading, motion, or other paper must not be sent directly to the presiding judge. (b) Original and Judge’s Copy Required. An original and one judge's copy of each pleading, motion, or other paper that is submitted on paper must be filed with the clerk. If a pleading, motion, or other paper is filed by electronic means, the judge's copy must be submitted following procedures set forth in the ECF Administrative Procedures Manual. (c) Document Containing More Than One Pleading, Motion, or Other Paper. Except for a proposed order, a document may contain more than one Page 10 of 166
pleading, motion, or other paper. Any such document must clearly identify in the title each included pleading, motion, or other paper. (d)
Certificate of Service. [REPEALED]
(e)
Serving by Electronic Means. [REPEALED]
(f) Electronic Filing Required. Unless the presiding judge otherwise directs, an attorney—other than a prisoner pro se party—must file any pleading (except an indictment or information), motion, or other paper by electronic means, subject to the restrictions and requirements of the ECF Administrative Procedures Manual. A party may, for cause, move to be excused from the requirement of electronic filing. (g) Registration as an ECF User Required. Unless excused for cause, an attorney—other than a prisoner pro se party—must register as an ECF user within 14 days of the date the attorney appears in a case, following the registration procedures set forth in the ECF Administrative Procedures Manual. LCrR 49.3
Required Form.
In addition to the requirements of the Federal Rules of Criminal Procedure, each pleading, motion, or other paper must: (a) contain on its face a title clearly identifying each included pleading, motion, or other paper; (b) contain a signature block that sets forth the attorney’s bar number for the jurisdiction in which the attorney is admitted to practice, and a facsimile number and here information may be sent to the attorney; (c)
use a page size of 8½ x 11 inches;
(d)
be typed, printed, or legibly handwritten on numbered pages; and
(e) when submitted on paper, unless otherwise provided by the local criminal rules or order of the presiding judge, be two-hole punched at the top and either stapled in the upper, left-hand corner or secured with a durable fastener at the top. LCrR 49.4
Notice of Orders and Judgments. (a) Furnishing Copies of Orders and Judgments. Unless the presiding judge otherwise directs, the clerk shall furnish a copy of each order and judgment to counsel of record by first class mail or, where the clerk has the capability to do so, Page 11 of 166
by electronic transmission. To receive orders and judgments by electronic transmission, the attorney of record must sign an agreement form provided by the clerk, and must comply with the applicable procedures established by the clerk. Where a party is represented by more than one attorney of record, the attorney designated in accordance with LCrR 49.4 (b) or (c) shall receive copies of orders and judgments and distribute them to co-counsel for the same party who have not received a notice of electronic filing from ECF. (b) Designation of Counsel to Receive Orders and Judgments. The clerk shall designate an attorney to receive copies of orders and judgments, in the following manner: (1) the first attorney to sign an indictment; and (2) the attorney appointed or retained to represent a defendant, or, when a defendant is represented by more than one attorney, the attorney who appears to be acting as lead counsel. (c) Change in Designation of Counsel. If the attorney designated to receive orders and judgments desires that another attorney be substituted for this purpose, the attorney must request substitution in the manner prescribed by the clerk. LCrR 49.5
Electronic Signature.
(a) What Constitutes Electronic Signature. [Repealed] (b) Requirements for Electronic Signature. [Repealed] (c) Certification of Signature of Another Person. By submitting a document by electronic means and representing the consent of another person on the document, an attorney who submits the document certifies that the document has been properly signed. (d) Requirements for Another Person’s Electronic Signature. An attorney who submits a document by electronic means that is signed by another person—other than a charging document or a document signed by a defendant— must: (1)
include a scanned image of the other person’s signature, or represent the consent of the other person in a manner permitted or required by the presiding judge; and
(2)
maintain the signed paper copy of the document for one year after final disposition of the case.
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LCrR 49.6
Requirement of Paper Copies of Certain Electronically-Filed Documents.
When a charging document—including a complaint, information, indictment, or superseding indictment—or any document signed by a criminal defendant is submitted by electronic means, the attorney who submitted the document must deliver an original, signed paper document to the clerk within 7 days. LCrR 53.1
Photographs, Broadcasting, Recording, and Television Forbidden.
No person may photograph, electronically record, televise, or broadcast a judicial proceeding. This rule shall not apply to ceremonial proceedings or electronic recordings by an official court reporter or other authorized court personnel. LCrR 53.2
Dress and Conduct.
All persons present in a courtroom where a trial, hearing, or other proceeding is in progress must dress and conduct themselves in a manner demonstrating respect for the court. The presiding judge shall have the discretion to establish appropriate standards of dress and conduct. LCrR 53.3 Weapons Forbidden. Firearms and other weapons are prohibited in areas of buildings designated for court use. Such weapons may be carried by the United States Marshal, the marshal’s deputies, courtroom security personnel, and other persons to whom a presiding judge has given approval. LCrR 55.1 Case Files. (a) Official Record. The electronic version of a document maintained on ECF, or the paper version of a document not so maintained, is the official record of the court.
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS LOCAL CRIMINAL RULES (added May 14, 2019, General Order 2019-4) CRIMINAL RULES CrLR6.
GRAND JURY WITNESSES
Names of witnesses appearing before a grand jury may be sealed for cause. CrLR12. CRIMINAL PRETRIAL MOTION PRACTICE CrLR12.1. Implementation. Federal Rule of Criminal Procedure 12 and this rule are to be followed to ensure consistent and efficient practice before this Court. Motions and responses that do not comply with these rules are waived. CrLR12.2. Form. A pretrial motion shall be in writing and state specifically the basis for the motion. The motion shall be supported by a statement of authority. It shall also be accompanied by a separate order granting the relief requested and by an averment that the movant has conferred with the respondent, but that an agreement cannot be reached on the disposition of the motion. If the motion presents issues of fact, it shall be supported by affidavit or declaration which sets forth with particularity the material facts at issue. An unopposed motion and its order must bear in the captions “unopposed.” CrLR12.3. Responses. If the respondent contests the motion, the response must be in writing, accompanied by authority and controverting affidavit or declaration of material facts, together with a separate order denying the relief sought. CrLR12.4. Service. All motions must be served on all parties and contain a certificate of service. CrLR12.5. Submission. At the time of arraignment the judicial officer shall set the time for pretrial motions and for any responses to the motions. CrLR18. PLACE OF TRIAL WITHIN THE DISTRICT A.
Division in Which Prosecution and Trial May Occur. (1)
Unless a statute, other rule, or court order requires otherwise, the government may prosecute a case in any Division in the District in which the offense was committed, in whole or in part.
(2)
The court may fix the venue of a criminal case in any Division in the
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District, consistent with Federal Rule of Criminal Procedure 18 and this Local Rule. B.
Multiple Offenses. In cases involving multiple offenses joined under Federal Rule of Criminal Procedure 8(a), the court may fix the venue in any Division in the District in which any one of the offenses may be tried.
C. Multiple Defendants. In cases involving multiple defendants joined under Federal Rule of Criminal Procedure 8(b), the court may fix the venue in any Division in the District in which any one of the defendants may be tried. D. Intradistrict Transfer. On a judge’s own motion or on the motion of a party, the judge in whose court the case was filed may transfer the case to a different Division in the District, if, after notice to the parties and an opportunity for them to be heard, the judge finds that the case was not filed in the proper Division or that transfer to a different Division would be in the interests of justice, based on the convenience of the defendant and the witnesses and on the prompt administration of justice. (1) If a case is transferred to another Division under Rule 18 and this Local Rule, the Clerk of Court will assign the case to a judge in the transferee Division in accordance with the plan for random assignment, unless the transferor judge orders that he or she will continue to handle the case after transfer. (2) If a case is retained in the Division where it was filed, the judge may direct the Clerk of Court to assign it to a judge in a Division in which venue would have been proper under Rule 18 and this Local Rule, in accordance with the plan for random assignment. CrLR23. TRIAL CrLR23.1. Free Press-Fair Trial Guidelines. The Free Press-Fair Trial Guidelines of the Judicial Conference of the United States shall apply to all criminal proceedings in this district. 87 F.R.D. 519, 525 (1980). CrLR23.2. Electro Mechanical Devices. Except by leave of the presiding judge, no photo- or electro-mechanical means of recordation or transmission of court proceedings is permitted in the courthouse.
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LOCAL CRIMINAL RULES (as of December 1, 2018) SECTION II: CRIMINAL RULES LOCAL RULE CR-1 Scope The rules of procedure in any criminal proceeding in this court are those prescribed by the laws of the United States, the Federal Rules of Criminal Procedure, these local rules, and any orders entered by the court. These rules shall be construed as consistent with acts of Congress and rules of practice and procedure prescribed by the Supreme Court of the United States and the United States Court of Appeals for the Fifth Circuit. LOCAL RULE CR-6 The Grand Jury (a) Selection of Grand Jurors. Grand jurors shall be selected at random in accordance with a plan adopted by this court pursuant to applicable federal statute and rule. (b) Grand Jury Subpoenas. Sealed grand jury subpoenas shall be kept by the clerk for three years from the date the witness is ordered to appear. After that time, the clerk may destroy the subpoenas. (c) Signature of the Grand Jury Foreperson. The grand jury foreperson shall sign the indictment with initials rather than his or her whole name. The foreperson will continue to sign the concurrence of the grand jury using his or her whole name. LOCAL RULE CR-10 Arraignments In the interest of reducing delays and costs, judges and magistrate judges may conduct the arraignment at the same time as the post-indictment initial appearance. LOCAL RULE CR-24 Trial Jurors (a)
Communication with Jurors. (1)
No party or attorney for a party shall converse with a member of the jury during the trial of an action.
(2)
After a verdict is rendered an attorney must obtain leave of the judge before whom the action was tried to converse with members of the jury.
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(b)
Signature of the Petit Jury Foreperson. The petit jury foreperson shall sign all documents or communications with the court using his or her initials.
LOCAL RULE CR-47 Motions (a) Form and Content of a Motion. All motions and responses to motions, unless made during a hearing or trial, shall be in writing, conform to the requirements of LOCAL RULES CV-5 and CV-10, and be accompanied by a separate proposed order for the judge’s signature. The proposed order shall be endorsed with the style and number of the cause and shall not include a date or signature block. Dispositive motions those which could, if granted, result in the dismissal of an indictment or counts therein or the exclusion of evidence shall contain a statement of the issues to be decided by the court. Responses to dispositive motions must include a response to the movant’s statement of issues. All motions, responses, replies, and proposed orders, if filed electronically, shall be submitted in A searchable PDF@ format. All other documents, including attachments and exhibits, should be in A searchable PDF@ form whenever possible. (1) Page Limits. (A)Dispositive Motions. Dispositive motions shall not exceed thirty pages, excluding attachments, unless leave of court is first obtained. Likewise, a party opposing a dispositive motion shall limit the response to the motion to thirty pages, excluding attachments, unless leave of court is first obtained. Any reply brief shall not exceed ten pages, excluding attachments. (B) Non-dispositive Motions. Non-dispositive motions shall not exceed fifteen pages, excluding attachments, unless leave of court is first obtained. Likewise, a party opposing a non-dispositive motion shall limit the response to the motion to fifteen pages, excluding attachments, unless leave of court is first obtained. Any reply brief shall not exceed five pages, excluding attachments. (2) Briefing Supporting Motions and Responses. The motion and any briefing shall be contained in one document. The briefing shall contain a concise statement of the reasons in support of the motion and citation of authorities upon which the movant relies. Likewise, the response and any briefing shall be contained in one document. Such briefing shall contain a concise statement of the reasons in opposition to the motion and a citation of authorities upon which the party relies. (3) Certificates of Conference. Except as specified below, all motions must be accompanied by a “certificate of conference.” It should be placed at the end of the motion following the certificate of service. The certificate must state: (1) that counsel has conferred with opposing counsel in a good faith attempt to resolve the matter without court intervention; and (2) whether the motion is opposed or unopposed. Certificates of conference are not required of pro se litigants (prisoner or non-prisoner) or for the following motions:
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(A)motions to dismiss; (B) motions for judgment of acquittal; (C) motions to suppress; (D)motions for new trial; (E) any motion that is joined, by, agreed to, or unopposed by all the parties; (F) any motion permitted to be filed ex parte; (G)objections to report and recommendations of magistrate judges; (H)for reconsideration; and (I) dispositive motions. (b) Timing of a Motion. (1)
Responses. A party opposing a motion has fourteen days from the date the motion was served in which to serve and file a response and any supporting documents, after which the court will consider the submitted motion for decision. Any party may separately move for an order of the court lengthening or shortening the period within which a response may be filed.
(2)
Reply Briefs and Sur-Replies. Unless otherwise directed by the presiding judge, a party who has filed an opposed motion may serve and file a reply brief responding to issues raised in the response within seven days from the date the response is served. A sur-reply responding to issues raised in the reply may be served and filed within seven days from the date the reply is served. The court need not wait for the reply or sur-reply before ruling on the motion. Absent leave of court, no further submissions on the motion are allowed.
(c) Affidavit Supporting a Motion. When allegations of fact not appearing in the record are relied upon in support of a motion, all affidavits and other pertinent documents shall be served and filed with the motion. It is strongly recommended that any attached materials have the cited portions highlighted or underlined in the copy provided to the court, unless the citation encompasses the entire page. The page preceding and following a highlighted or underlined page may be submitted if necessary to place the highlighted or underlined material in its proper context. Only relevant, cited-to excerpts of attached materials should be attached to the motion or the response. LOCAL RULE CR-49 Service and Filing (a)
Generally. All pleadings and documents submitted in criminal cases must conform to the filing, service, and format requirements contained in LOCAL RULES CV-5, CV-10, and CV-11. (1)
Defendant Number. In multi-defendant cases, each defendant receives a "defendant number." The numbers are assigned in the order in which defendants are listed on the complaint or indictment. When filing
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documents with the court, parties shall identify by name and number each defendant to whom the document being filed applies. (2)
Sealed Indictments. In multi-defendant cases involving one or more sealed indictments, the government should, at the time the sealed indictment is filed, provide the clerk with appropriately redacted copies of the indictment for each defendant. The goal of this procedure is to protect the confidential aspect of the sealed indictment with regard to any defendants not yet arrested.
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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS LOCAL CRIMINAL RULES (as of April 26, 2012) RULE CR-12. PRETRIAL MOTIONS (a) Motion by Defendant. Unless otherwise ordered by the court, the defendant must file any pretrial motion: (1)
within 14 days after arraignment; or
(2)
if the defendant has waived arraignment, within 14 days after the latest scheduled arraignment date.
(b) Motion by the Government. Unless otherwise ordered by the Court, the government must file any pretrial motion by the latest of the following dates: (1)
within 14 days after receiving defendant's motions;
(2)
within 21 days after the arraignment; or
(3) if the defendant has waived arraignment, within 21 days after the latest scheduled arraignment date. Committee Notes 1. The language of Rule CR-12 has been amended as part of the general restyling of the local criminal rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only, except as noted below. 2. The form of motions and responses, and the time for filing a response, are governed by CR-47. 3. Notwithstanding the preference in the Federal Rules of Criminal Procedure for case-specific scheduling orders (see Committee Note, proposed amendment to Fed. R. Crim. P. 12(c)), the rule retains the practice of setting motions deadlines by local rule, recognizing that the practice is suitable for the vast majority of criminal cases filed in this district, and that the district court may set specific deadlines different from the rule in appropriate cases. RULE CR-47. MOTIONS AND RESPONSES (a)
Requirements. When filing a motion or response, a party must: (1)
cite the legal authority upon which the party relies; and
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(2)
submit a proposed order stating the relief the party seeks.
(b) Time for Filing Response. If a party opposes a motion, the party must file its response with the clerk and serve a copy on all parties within 11 days of service of the motion. Committee Notes 1. Rule 47 is a new rule consisting of portions of the substance of former CR-12, renumbered as CR-47 to conform more closely to the organizational structure of the Federal Rules of Criminal Procedure and to make it clear that the requirements apply to all motions and responses and not only pretrial motions and responses. These changes are intended to be stylistic only, except as noted below. 2. The rule requires the submission of a proposed order with motions and responses.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION UNITED STATES OF AMERICA, : : v. : : CASE NO. _________________ JOHN DOE, : MOTION FOR DISCOVERY IN AID OF JOHN DOE’S DETENTION HEARING COMES NOW the accused, JOHN DOE, by and through his counsel, and moves this Honorable Court to direct the attorney for the Government to provide him with the following information that is relevant and material to his detention hearing: 1.
Jencks material for any witness that the government intends to call at Mr. Doe’s detention hearing;
2.
Jencks material for any witness whose statements have been proffered to the court in the government’s Position on Pretrial Release;
3.
Jencks material for any unindicted coconspirators whom the government quotes or to whom the government attributes statements;
4.
Any written reports of the Consul in Riyadh, Saudi Arabia who allegedly spoke with Mr. Doe in November 2011 about him not wanting to return to the United States;
5.
Documentation of any and all communication, written or unwritten, between the Government of Saudi Arabia and the United States Government concerning the arrest of Mr. Doe;
6.
The basis for the allegation that Mr. Doe would flee the country with the help of confederates who are still at large;
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7.
Any and all photographs, in the possession of the government, taken of Mr. Doe upon his release to the United States Authorities earlier this year;
8.
Any and all photographs, in the possession of the government, taken of Mr. Doe while he was in custody in Saudi Arabia;
9.
Any and all documentation of or information about the manner in which Mr. Doe was physically held while in custody in Saudi Arabia;
10.
Any and all written reports or notes taken by any doctor who has examined Mr. Doe and whom the government intends to call or whose statements the government has already proffered;
11.
Any and all reports, cables or other written statements of the Consul in Riyadh, Saudi Arabia whose statements about the lack of physical abuse the government has proffered in its Position on Pretrial Detention.
Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF SERVICE
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA § § v. § CASE NUMBER § JOHN DOE MOTION FOR EXPEDITED REVIEW OF DETENTION ORDER AND MEMORANDUM COMES NOW the defendant, JOHN DOE, by and through his attorney, MICHAEL P. HEISKELL, who respectfully requests the District Court to review the order of detention entered December 16, 2016. The Defendant files this request pursuant to 18 U.S.C. § 3145(b). Review of the order of detention by the District Court is de novo. United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985) (“. . . the court acts de novo and makes an independent determination . . . . “). The District Court can make the de novo determination based on its independent consideration of the record before the magistrate and the additional record adduced before it ‘as unfettered as it would be if the district court were considering whether to amend its own action.’” Id., at 50 (citation omitted). See also United States. V. Koenig, 912 F.2d 1190 (9th Cir. 1990). The two considerations in determining the appropriateness of releasing a presumptively innocent individual without conditions, releasing under certain conditions, and incarceration, are: 1) is the person a flight risk, and 2) is the person a danger to the safety of the community. Indeed, conditions of release may not be set “unless the judicial officer determines that [release without conditions] will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” 18 U.S.C. § 3142(b). Thus, the purpose of setting conditions of release is to achieve the goals of assuring the defendant’s appearance at trial, and to protect the safety of the community. At the hearing that resulted in the defendant’s incarceration the Magistrate-Judge found, and the record clearly indicated, JOHN DOE was not a flight risk. There was no indication whatsoever that he is a danger to the community. Mr. JOHN DOE’s parents reside in and own a business in Arlington, Texas. Since JOHN DOE presents no risk of flight, and no danger to society, it is not appropriate to even set conditions on his release. 18 U.S.C. § 3142(b). If conditions are set, they must be “the least restrictive” to “reasonably assure the appearance . . . and the safety of . . . the community.” 18 U.S.C. § 3142. Incarceration is an option only if “no conditions or combination of conditions will reasonably assure the appearance of the person . . . and the safety of . . . the community.” 18 U.S.C. § 3142(e). See also United States v. Minns, 863 F. Supp 360, 363 (N.D. Tex. 1994). JOHN DOE, through counsel, has requested a copy of the tape recording of the detention hearing, and plans to transcribe that hearing, and provide the transcription, and the tape recording to the Court as soon as possible. Wherefore, JOHN DOE requests this Court to review the hearing de novo, reverse the decision ordering JOHN DOE detained, and either delete the conditions of release, or amend them to include either daily reporting, and/or electronic monitoring, with home confinement, with the exception of time to go to work and back. JOHN DOE also requests a hearing date be set so that he can present witnesses on the issue of his ability to abide by conditions. One such witness would be Constance Langston, his present Page 52 of 166
employer, who can explain that JOHN DOE’s ability to abide by conditions, but that JOHN DOE is also greatly needed by her to complete his work on her behalf. JOHN DOE would also like other witnesses on his behalf. Witnesses were not presented in the hearing because that hearing was held the same day as JOHN DOE’s arrest. JOHN DOE asks that this request be expedited because he is in custody. Furthermore, expedition is requested because JOHN DOE would like to be release during the holiday season. JOHN DOE’s trial is scheduled for January 25, 2017, and his availability to counsel will provide effective assistance to said counsel. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF SERVICE
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § § v. § CASE NUMBER § JOHN DOE MOTION FOR AMENDMENT OF THE CONDITIONS OF RELEASE COMES NOW, Defendant, John Doe, and moves this Honorable Court under the authority of 18 U.S.C. §3145(2) for an Order amending the conditions of release. In support thereof, Mr. Doe shows the Court as follows: STATEMENT OF FACTS 1. Mr. Doe has been indicted on two bank robberies in violation of 18 U.S.C. §2113(a). On September 12, 2015, the Government moved that he be detained. Following a bond hearing and a preliminary examination, United States Magistrate Court Judge denied the Government's motion and instead imposed a bond of $25,000.00 to be secured by corporate surety or property. 2. Based on Mr. Doe and his family's inability to make the $25,000.00 secured bond, undersigned counsel filed a Motion to Reconsider Order Setting Conditions of Release with the United States Magistrate Judge. By Order dated September 29, 2015, the United States Magistrate Judge reduced Mr. Doe's bond to $10,000. 3. Still unable to make this bond, Mr. Doe filed a Motion for Reduction of Bond before the United States Magistrate Judge on November 3, 2015. In this Motion, Mr. Doe asked the Court to set a $7,000 bond to be secured by an automobile. This Motion was denied by the United States Magistrate Judge by Order dated November 6, 2015. 4. As discussed in the Pretrial Services Report, Mr. Doe was born in Washington D.C. in March of 1954 and grew up in Ohio. He has a brother, Brian Doe, who works for American Airlines and has resided in the Northern District of Texas for over 23 years. Brian Doe has indicated that if Mr. Doe is released, Mr. Doe can reside at his house in Fort Worth. 5. Mr. Doe, who was living in Tampa, voluntarily came to Dallas to meet with the F.B.I. when he heard that the F.B.I. was attempting to locate him. 6.
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Mr. Doe's brother and his wife, Brian and Carolyn Doe, own a house in Fort Worth. Because the Does recently took out a second mortgage, there is no equity on the house available for a bond. They do own a 2009 Toyota Camry that is available to secure a bond. Attached as Exhibit "A" is a copy of the title to the car showing that Brian and Carolyn Doe own the vehicle free and clear. Attached as Exhibit "B" are relevant Does from the October 2009 N.A.D.A. guide showing the retail value of a 4-door 2009 Toyota Camry DLX as $7,100.00. ARGUMENT The Bail Reform Act prohibits a court from using unduly rigorous financial conditions to detain defendants. See 18 U.S.C. §3142(c)(2); United States v. Badalamenti, 810 F.2d 17 (2d Cir. 1987); United States v. Orta, 760 F.2d 887, 890 (8th Cir. 1985) (en banc). In this case, lowering Mr. Doe's bond from $10,000 to $7,000 and allowing the bond to be secured by the family car, together with electronic monitoring would more than adequately assure Mr. Doe's appearance. No evidence presented during the bond hearing indicated that Mr. Doe would have the means or the desire to flee the jurisdiction. To the contrary, Mr. Doe, knowing that authorities were searching for him, voluntarily turned himself into the F.B.I. Further, as noted at the hearing, Mr. Doe's brother, Brian Doe, has lived in the Northern District of Texas for over 23 years. Mr. Brian Doe accompanied the Defendant to the F.B.I.'s office so that the Defendant could answer questions. Moreover, Mr. Brian Doe indicated to the pretrial officer that the Defendant can reside at his home in Fort Worth during the pendency of the case. The United States Magistrate Judge has previously found that Mr. Doe is entitled to a bond. If Mr. Doe came from a middle class family, he would be out on bond, and under pretrial supervision. Mr. Doe should not be penalized for being a poor man. The 2009 Toyota Camry is the only asset available for bond. Mr. Brian Doe has agreed to make the car available as security for a bond. Undersigned counsel believes that lowering Mr. Doe's bond from $10,000.00 to $7,000.00, securing the bond with the family car and requiring Mr. Doe to reside at his brother's home while under electronic monitoring will assure Mr. Doe's attendance at all court proceedings. Under these circumstances, Mr. Doe implores the Court to amend the conditions of his release. WHEREFORE, Defendant, Doe, urges this Court to GRANT the Motion for Amendment of Conditions of Release currently pending before this Court. DATED: This _____ day of January, 2016. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF SERVICE
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April 2, 2016 SUPPLEMENTAL DISCOVERY REQUEST FOR NOTICE Aaron Wiley Assistant U.S. Attorney 1100 Commerce Street, 3rd Floor Dallas, Texas 75242 RE:
US v. Joe Client Cause No. 03:09-XXX-D(03)
Dear Mr. Wiley: Thank you for the discovery that you have provided thus far. The discovery consists of: 1) the NCIC of Mr. Client and his two co-defendants; 2) a three- page ATF report; 3) a one-page printout of what appears to be information pertaining to an automobile; 4) a ten-page “Offense Report” from the Dallas Police Department of which the 2nd, 3rd, 6th, 7th, 8th, 9th, and 10th pages are blank; 5) a five- page “Arrest Report” from the Dallas Police Department; 6) a five-page DEA report of investigation; 7) a photograph of a Hi-Point .380 caliber pistol; 8) a photograph of a Lorcin L380 pistol; 9) a blank page indicating that 1.96 kilograms of powder cocaine will be produced at trial; 10) a one-page ATF summary of events regarding whether the Hi-point and Lorcin pistols function as designed; 11) a one-page summary of events regarding whether the Hi-point and Lorcin pistols have travelled in interstate commerce; 12) a one-page statement of Jennifer McCarty’s qualifications; and 13) a one-page report from the Southwestern Institute of Forensic Sciences at Dallas. To the extent that there are additional material to which the defense is entitled, I am sending this letter to ensure that the defense receives them. Accordingly, please consider this letter as the defense’s formal request that the government make available to me all materials and information which the government must disclose pursuant to the Federal Rules of Criminal Procedure, Federal Rules of Evidence, case law, and the Pretrial Order issued by the Court. This request includes, but is not limited to, all statements and materials gathered by the law enforcement agencies of the city of Dallas, the county of Dallas, any federal law enforcement agencies including the ATF and DEA, and any state and/or federal task-forces that have gathered statements, information, records, transcripts and computer data that in any way relate to the charged offense(s). More specifically, this request includes the following information: I.
Statements In responding to this request, the defense asks that you ask each law enforcement agency involved in investigating or prosecuting this case, including the Dallas County Police Department, ATF and DEA, to search its files for responsive information. (a) Defendant’s Written or Recorded Statements [FRCrp 16(a)(1)(B)] (1) Any relevant written or recorded statements by the defendant within the possession, custody, or control of the government that are known to the government, or through due diligence may become known. (2) Any reference in any written record of any oral statement made before or after arrest by the defendant to a person known by the defendant to be a government agent. Page 56 of 166
(3) (4)
(b)
Defendant’s grand jury testimony (if any) relating to the charged offenses. Defendant’s statements made in open court (if any), including nay statements made in state-level court proceedings for alleged conduct that is the same or related to the instant alleged federal offense.
Defendant’s Oral Statements [FRCrP 16(a)(1)(A)] The Substance of any oral statements made by the defendant whether before or after interrogation by any person then known by the defendant to be a government agent or law enforcement officer that the government intends to use in any manner at trial regardless of whether any written record of the statement exists. In the event the government intends to use such an oral statement at trial, I request that it be reduced to writing and produced. This request including the substance of the defendant’s response to Miranda warnings (if any).
II.
Defendant’s Prior Record [FRCrp 16(a)(1)(D)] This request includes the defendant’s entire criminal record, including all arrests and offenses regardless of conviction or severity. It includes all matters that may affect the defendant’s criminal history score pursuant to U.S.S.G. Chapter 4. It also includes any matters that the government believes may influence any statutory enhancement provisions such as (but not limited to) 18 U.S. C. §924(e).
III.
Documents, Data and Objects (a) Material to Preparing a Defenses [FRCrp 16(a)(1)(E)(1)] The defense requests the opportunity for inspection, copying or photocopying of documents, data or tangible objects within the possession, custody or control of the government and are material to the preparation of the defense. Please separately identify any materials the government intends to use at trial during its case-in-chief. (b) Material Government Intends to Use in its Case in Chief at Trial [FRCrP 16(a)(1)(E)(ii)] Please produce or otherwise make available all documents, data and tangible objects including tape recordings and transcripts, which the government intends to use as evidence during its case-in-chief. In this regard, please produce any index or working exhibit list of items you intend to introduce at trial. (c) Obtained from or Belonging to Defendant [FRCrP 16(a)(1)(E)(iii)] A list of all materials obtained from or belonging to the defendant that are within the possession, custody or control of the government regardless of how obtained or the identity of the person that obtained them.
IV.
Reports of Examinations and Tests [FRCrP 16(a)(1)(E)(iii)] Please produce any results or reports of physical or mental examinations, and/or scientific tests or experiments within the possession, custody or control of the government by the tests or existence of due diligence may become known to you, and material to the preparation of the defense or are intended for use by the government as evidence in the government’s case in chief at trial. In the event the results of any scientific were reported orally to you or to any government official or law enforcement officer, I request that you cause a written report of the results to be made and produced. In complying with this request, please contact any law enforcement agency involved in the investigation or prosecution of this case to determine whether relevant examinations or tests were conducted, and, if so produce the results or reports.
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V.
Expert Witnesses [FRCrP 16(a)(1)(G)] Please advise the defense if you intend to offer any expert testimony under the Federal Rules of Evidence through any witness, including a government agent or employee or law enforcement officer. I request that you prepare and produce a summary of the witness’ opinion testimony, the grounds or basis for any such opinion testimony and the qualifications of the expert witness. Rather than first supplying this information within your pretrial materials, I ask that you provide it to the defense at your earliest opportunity so that my client will be able to better estimate the relative strength of the government’s case and, in turn, decide as soon as reasonably possible whether to plead guilty or proceed to trial.
VI.
Other Offense Evidence [FRE 404(b)] I request notice of any “other offense” evidence you intend to use in your case in chief. In the event that you identify any “other offense” evidence that you intend to offer in rebuttal, please produce and identify such evidence separately.
VII.
Summary Witness or Charts [FRE 1006] In the event you intend to call a summary witness at trial or present evidence in the form of a chart, I request production within a reasonable time prior to trial of all the original documents or tape recordings upon which such testimony or chart is based.
VIII.
Brady.Giglio Material Pursuant to Brady v. Maryland 1 and Giglio v. United States 2 , the defense requests that the government produce in advance of trial any exculpatory evidence that is material to guilt or punishment. This request includes impeachment of evidence and/or information. Should the government have question with regard to whether certain evidence constitutes Brady/Giglio material, or when it must be produced, the defense requests that the government produce the information to the court, with notice to the defense, for review in camera
IX.
Jencks Act Material The defense requests that the government produce any Jencks Act material pretrial and, unless otherwise directed by the court’s pretrial order, more than one business day prior to the day of a witness’ direct examination.
X.
Government Plea Offer to Defendant As you know, “defendants have a Sixth Amendment right to counsel, a right that extends to the plea bargaining process.” 3 Also, “during plea negotiations are ‘entitled to the effective assistance of competent counsel.’” 4 In Lafler, the U.S. Supreme Court explained that a defendant that declines a plea offer upon the erroneous advice of his/her defense attorney may have a claim of ineffective assistance of counsel. So that I may properly advise Mr. Client on this matter, please confirm, in writing, any plea offer that the government has already extended and/or advise the defense of any plea offer that it would be willing to extend to Mr. Client. In exchange, I will either discuss or re-review the plea offer (if any) with Mr. Client and then advise the government of his decision.
Brady v. Maryland, 373 U.S. 83 (1963). Giglio v. United States, 405 U.S. 150 (1972). 3 Lafler v. Cooper 566 U.S. 156 (2012). 4 Id. 1 2
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XI.
Specific Requests a)
Any audio or video of the incident including, but not limited to, the traffic stop, “patdown” of Mr. Client, arrest of Mr. Client, and search of the vehicle. If no audio or video recordings exist, please advise me in writing.
b)
Any scientific and/or forensic test results, regardless of the nature of the result, performed on any of the physical evidence in this case, including all items submitted to the Southwestern Institute of Forensic Sciences. This request includes, but is not limited to, any fingerprint or DNA testing done on the “cardboard box” and “two tape/plastic wrappers” described in the SWIFS document marked “Exhibit 7.” If no testing has been done, please ad vise me in writing.
c)
Any reports/synopsis of investigation, reports of interview, and associated surveillance of anyone else related to this case, no matter how marginal. This request includes any of the reports/synopsis of investigation, reports of interviews, and associated surveillance of codefendants Griffin and Young. I note that discovery already provided by the government included reports from both DEA and ATF. It therefore, seems likely that, at the minimum, some individual(s) related to this case were under investigation by the DEA. The defense considers this to be a Brady request. If no such reports/synopsis of investigation, reports of interview, or associated surveillance exists please advise me in writing.
d)
A copy of any cellular or mobile telephone records that the government or law enforcement has obtained in connection with this or any related case(s), regardless of whether the government intends to rely on such records at trial.
e)
The opportunity to physically review and photograph the evidence in this case. In particular, the defense needs to physically review and photograph the above-described “card-board box,” “two tape/plastic wrappers,” the kilograms of powder cocaine, the duffle bag in which the $175,350 and Mr. Client’s wallet were reportedly found by the police. If these items are no longer in possession of the government or law enforcement, or are for some other reason unavailable, please advise me in writing. To schedule a review of the evidence, either you or a law enforcement agent may contact me at 817457-2999.
Thank you for your time and consideration of this matter. Sincerely, JOHNSON, VAUGHN & HEISKELL Michael P. Heiskell MPH/cij
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA } Plaintiff, } } } } -vs} CASE NO: 4: 1000 } (Judge Means) JOHN DOE, } Defendant. } JOHN DOE’S OMNIBUS MOTION FOR DISCOVERY AND INSPECTION The United States has provided the defense thousands of pages of discovery, including the defendant’s post arrest statement. Nevertheless, certain evidence has not been provided as of this date such as Giglio material or any notice of the government’s intent to offer 404(b) evidence. Therefore, in an abundance of caution, John Doe respectfully requests this Honorable Court, pursuant to Rule 16 of the Federal Rules of Criminal Procedure and the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, order the Government to produce for inspection and copying the following, which are known to, or are in the possession of, the Government or any of its agents, or which through due diligence would become known from the investigating officers or witnesses or persons having knowledge of this case. A. OTHER STATEMENTS OF THE DEFENDANT 1. Discovery of statements or confessions of John Doe under Rule 16(a)(1), Federal Rules of Criminal Procedure, should include not only written or recorded statements made by John Doe to Government agents, but to other individuals as well. Davis v. United States, 413 F.2d 1226, 1230-1231 (5th Cir. 1969); United States v. Viserto, 596 F.2d 531, 538, 4 Fed. R. Evid. Serv. 32 (2d Cir. 1979). 2. Discovery of John Doe's statements under Rule 16(a)(1) should include not only verbatim statements made by John Doe, but also any summaries or Government reports, notes, or interviews setting out the substance of John Doe's statements or statements attributable to him. United States v. Fioravanti, 412 F.2d 407, 411-412 n.12 (3d Cir. 1969); United States v. Jefferson, 445 F.2d 247, 250 (D.C. Cir. 1971). 3. Even if the oral statement is made to a third party who then makes a statement to the Government, the substance of the John Doe's statement should be discoverable. United States v. Thevis, 84 F.R.D. 47, 55-56 (N.D. Ga. 1979). Although the Jencks Act requires that statements by third parties to the Government be produced prior to cross-examination by the Defendant's attorney, there is authority to allow the Court to order such production earlier, even prior to trial. Id. Davis v. United States, 413 F.2d at 1230-1231 (recordings of conversation between a defendant and a government informant held to be statement of defendant and discoverable). B. STATEMENTS ALLEGED TO BE ADMISSIBLE UNDER THE COCONSPIRATOR'S EXCEPTION TO THE HEARSAY RULE 1. As a Defendant's agent, statements made by co-conspirators within the scope of that agency and in furtherance of same are said to be impliedly authorized by John Doe as a principal and are, therefore, admissions by John Doe. Given that such co-conspirator's statements are admissible because Page 60 of 166
they are treated as statements of or adopted by John Doe, then such statements should be discoverable as John Doe's own, pursuant to Rule 16(a)(1)(A), on the same theory. United States v. Mays, 460 F. Supp. 573, 575 (E.D. Tex. 1978). C. CRIMINAL RECORD OF JOHN DOE 1. Rule 16(a)(1)(B), Fed. R. Crim. P., requires in mandatory terms the production by the Government of John Doe's prior criminal record, if any. D. TANGIBLE OBJECTS 1. Rule 16(a)(1)(C), Federal Rules of Criminal Procedure, authorizes the discovery of all books, papers, documents and tangible objects in the possession or control of the Government. The tangible objects requested, including but not limited to the papers, instruments, writings, and documents herein, are all tangible objects obtained from John Doe and others by seizure. 2. These objects are discoverable since the Government relied upon them in obtaining an indictment against John Doe, and, they are, of necessity, "material" to the cause and the preparation of an adequate defense. United States v. Pascual, 606 F.2d 561, 565-566 (5th Cir. 1979); United States v. Lambert, 580 F.2d 740, 744 n.4 (5th Cir. 1978). E. STATEMENTS OF CO-DEFENDANTS 1. The statements of co-defendants are discoverable pursuant to Rule 16(a)(1)(C), Fed. R. Crim. P.; Wright, Federal Practice and Procedure, Criminal Section 254; United States v. Percevault, 490 F.2d 126, 130-132 (2d Cir. 1974); United States v. McMillen, 489 F.2d 229, 230-232 (7th Cir. 1972). 2. Production of a co-defendant's statement is important not only to adequately prepare a defense and to determine whether or not to advise John Doe to take the stand, but also is critical to the determination of whether or not to seek a severance from any co-defendants under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968). F. PERSONS HAVING KNOWLEDGE OF CASE 1. The names and addresses of persons known to and interviewed by the Government who have knowledge of facts pertaining to this case are discoverable pursuant to Rule 16(a)(1)(C), Fed. R. Crim. P. 2. The names of persons with knowledge of the facts relevant to the case is the most critical information obtainable for preparation of an adequate defense and to insure a fair trial. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966); United States v. Baum, 482 F.2d 1325, 1331 (2d Cir. 1973): Witnesses, particularly eyewitnesses to a crime, are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity, to interview them. Gregory v. United States, 369 F.2d at 188. 3. Upon request, the Government must ordinarily disclose the whereabouts of each government witness unless the Government can show why such disclosure should not be made. The witness' desire not to be interviewed is an insufficient showing of why disclosure should not be made. United States v. Page 61 of 166
Opager, 589 F.2d 799, 805, 3 Fed. R. Evid. Serv. 1013 (5th Cir. 1979); United States v. Chaplinski, 579 F.2d 373 (5th Cir. 1978). G. CRIMINAL RECORDS OF GOVERNMENT WITNESSES 1. The arrest and conviction records, or "rap sheets," of individuals the Government plans to call as witnesses should be discoverable pursuant to Rule 16(a)(1)(B),(C), Fed. R. Crim. P. 2. This information is critically important information for meaningful cross-examination by John Doe's counsel. And John Doe, unlike the Federal Government with its vast data storage and investigative facilities, is at a substantial disadvantage without such information. Wright, Federal Practice and Procedure, Criminal, § 254 at 91-92, (noting that defense counsel is at a "substantial disadvantage" without the criminal records of Government witnesses in advance of trial). 3. In United States v. Auten, 632 F.2d 478 (5th Cir. 1980) the criminal record of a key Government witness was ordered disclosed by the Fifth Circuit Court of Appeals because it was determined to be of value in impeaching that witness' credibility, and favorable to defendant. H. STATEMENT OF INDIVIDUALS WHO WILL NOT BE GOVERNMENT WITNESSES 1. The written statements in the possession of the Government of individuals who the Government does not plan to call as witnesses are discoverable under the provisions of Rule 16(a)(1)(C), Fed. R. Crim. P., as such statements would not be obtainable at any time under the Jencks Act, since that statute provides for discovery only of statements of witnesses who actually testified at trial. Accordingly, pursuant to Rule 16(a)(1)(C), Fed. R. Crim. P., John Doe should be granted discovery of the statements of any individuals who will not be witnesses at trial. Moore's Federal Practice, Section 16.05 (4). Davis v. United States, 413 F.2d 1226 (5th Cir. 1969). I. IDENTITY OF INFORMER 1. The name, identity and whereabouts of an informer who gave information leading to the arrest of John Doe, as well as information as to whether said informer was paid by the Government for such information, is discoverable pursuant to Rule 16(a)(1)(C), Fed. R. Crim. P., where said informant is a witness to or has knowledge of facts relevant to the case. United States v. Barnes, 486 F.2d 776 (8th Cir. 1973); Roviaro v. United States, 353 U.S. 53, 64, 77 S. Ct. 623, 629 (1957); United States v. Nixon, 777 F.2d 958, 19 Fed. R. Evid. Serv. 932 (5th Cir. 1985); United States v. Fischel, 686 F.2d 1082 (5th Cir. 1982). J. EXAMINATIONS, TESTS AND EXPERIMENTS 1. Discovery of the examinations, tests and experiments requested herein is authorized by Rule 16(a)(1)(D), Fed. R. Crim. P. No specific showing of materiality or reasonableness is required under the mandatory provisions of Rule 16(a), United States v. Hughes, 413 F.2d 1244, 1250 (5th Cir. 1969), cert. granted, 396 U.S. 984, 90 S. Ct. 479 (1969) and judgment vacated as moot, 397 U.S. 93, 90 S. Ct. 817 (1970).
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K. TRANSCRIPTS OF GRAND JURY TESTIMONY 1. The transcript(s) of the testimony of individuals who testified before the Grand Jury in this case, which are requested herein are discoverable pursuant to Rule 16(a)(1)(C), Fed. R. Crim. P., since such transcripts are "documents" under the rule. United States v. Hughes, 413 F.2d at 1255-57. 2. Discovery of recorded testimony of witnesses other than John Doe may be discoverable pursuant to Rule 6(e), Fed. R. Crim. P., which provides for pre-trial discovery of such Grand Jury testimony. Dennis v. United States., 384 U.S. 855, 86 S. Ct. 1840 (1966). 3. Grand Jury testimony should be disclosed any time the Government demonstrates no need for secrecy, Nolan v. United States, 395 F.2d 283, 286 (5th Cir. 1968), and the defense shows a semblance of need (e.g. where said Grand Jury witnesses are individuals the Government intends to call at trial). Allen v. United States, 390 F.2d 476 (D.C. Cir. 1968), opinion supplemented, 404 F.2d 1335 (D.C. Cir. 1968); United States v. Bright, 630 F.2d 804, 6 Fed. R. Evid. Serv. 550 (5th Cir. 1980). 4. Where, as here, the Government's case may depend upon oral, unrecorded statements of John Doe or alleged co-conspirators, any of the Grand Jury testimony regarding the substance of those statements is necessary to adequately prepare a defense and disclosure should be required prior to trial. Where the question of guilt or innocence may turn on exactly what was said, the defense is clearly entitled to all relevant aid which is reasonably available to ascertain the precise substance of the statements. Dennis v. United States, 384 U.S. at 872-873, 86 S.Ct. at 1850-51. L. EXCULPATORY EVIDENCE 1. The exculpatory or favorable evidence requested herein is discoverable pursuant to the Due Process clause of the Fifth and Fourteenth Amendments to the Constitution. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). 2. This right of John Doe to disclosure of "favorable" evidence exists whether such evidence is material to the John Doe's guilt or to mitigation of his punishment, Brady at 1196-97, and regardless of whether such exculpatory evidence would be admissible in John Doe's behalf at trial or in obtaining further evidence. 3. Evidence which may serve to impeach the testimony or credibility of a Government witness is discoverable under Brady since the duty upon the Government to disclose evidence favorable to a defendant under Brady applies to any information favorable to the accused either as direct or impeaching evidence. 4. The Supreme Court has placed upon prosecutor’s the affirmative duty to determine whether exculpatory evidence is in the possession of any agent or agency involved in the investigation of the Defendant. Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555 (1995). The United States Attorney or other agents of the United States Government involved in the investigation and preparation of this case have in their possession, custody or control of each of the above requested items and information, or through the exercise of reasonable diligence would be able to obtain such possession or locate the whereabouts of such items or information. Each of these items is material to the preparation of an adequate defense and is reasonable in light of the facts set out herein. M. PROMISES TO CO-DEFENDANTS OR UNINDICTED COCONSPIRATORS OR OTHER WITNESSES 1. The evidence of any representations which have been made by the Government or which the Government will make at any future time is discoverable pursuant to the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution, and the withholding of any such evidence constitutes a denial of due process and fundamental fairness. Giglio v. United States., 405 U.S. 150, 92 S. Ct. 763 Page 63 of 166
(1972). Such evidence is not only exculpatory in the sense that it is legitimate grounds for impeachment of any witnesses the Government may call to testify against the Defendants, Williams v. Dutton, 400 F.2d at 800 (impeachment evidence is exculpatory evidence discoverable under Brady), but also is discoverable by Defendant in order to show such witnesses' bias or prejudice in testifying at such trial. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105 (1974). N. EVIDENCE OF OTHER ACTS 1. Federal Rule of Evidence 404(b) permits the government to introduce: Evidence of other crimes, wrongs, or acts… [other than to prove character] …for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or accident… However, the government is required to provide notice of its intent to introduce such evidence: [U]pon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. 2. Defendant John Doe so requests. WHEREFORE, John Doe respectfully moves this Honorable Court to Order the production of the above described papers, documents, and information now in the possession of the Government or which through reasonable diligence could be obtained or located, and for such other and further relief as this Honorable Court should deem just and proper. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE ORDER
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § § v. § DOCKET NO. 3:19-CR-00000-X § JOHN DOE § MOTION FOR DISCLOSURE REGARDING THE GOVERNMENT’S “FILTER TEAM” AND THIRD PARTY VENDORS INVOLVED IN DISCOVERY REVIEW AND PRODUCTION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW the Defendant, John Doe, by and through his counsel of record, and respectfully moves that the Court order the Government to disclose the following information regarding its “filter team” (those charged with review of documents to determine if they are privileged) and third party vendors involved in discovery review: (a) The date on which the “filter team” was formed. (b) A list of all individuals on the filter team, including their titles and employers. (c) Who specifically selected and appointed the various individuals on the filter team. (d) Whether any of the materials seized in the search or provided to the defense in the discovery process have ever been in the possession of any non-government third party vendor(s), and if so, whom. WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully requests that the Court order the Government to provide the information requested herein no later than thirty days prior to trial. Respectfully Submitted,
/s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE ORDER
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § § v. § DOCKET NO. 3:19-CR-00000-X § JOHN DOE § UNOPPOSED JOINT MOTION TO APPOINT COORDINATING DISCOVERY ATTORNEY TO THE HONORABLE JUDGE OF SAID COURT: For the reasons that follow, the undersigned counsel for the Defendants, John Doe and Joe People, respectfully request that the Court appoint the Office of the Federal Public Defender as the coordinating discovery attorney in this matter. The two defendants in this case are charged in a 12-page indictment with one (1) count of conspiracy to commit health care fraud and six (6) counts of health care fraud. The Government has already produced seven rounds of discovery totaling approximately 2.23 terabytes of data. To the Government’s credit, they have produced the discovery bates numbered and in a format that can easily be loaded into a software program designed to search e-discovery. The problems associated with organizing and searching through this amount of voluminous material are well documented in “Criminal E-Discovery, A Pocket Guide for Judges.” The costs alone should provide an indication of the difficulties faced by each of the defendants. Counsel has received a quote from a software vendor who has stated that it would cost close to $8,000 - $10,000 per month (per defendant) to host a production of the amount of data at issue here, which would then enable the defendants to utilize the search software. The software vendor’s quote could dramatically increase if the Government were to provide additional discovery. As in other document and file intensive cases, there is a need for the parties to consolidate resources. This need stems from both principles of fairness and pragmatic considerations alike. Possessing the capability to search the discovery is essential to ensuring each of the defendants receive adequate representation. Given the costs associated with this volume of discovery, it is prohibitively expensive for the defendants to collectively obtain the software to search this discovery once, much less for each of the two defendants independently. Appointing a coordinating discovery attorney would enable the Court and the Government to work with one person regarding any discovery issues in this case. A discovery attorney would act as a conduit between the defense, the Government, and the Court. The Federal Public Defender for the Northern District of Texas, has agreed to utilize Page 66 of 166
the resources of his office to assist with this voluminous discovery and to act as the coordinating discovery attorney. The FPD’s office has the capability to host this discovery on a document- review platform using Summation. The use of Summation will allow the defense to organize and search through the discovery in an efficient and cost-effective manner. In addition, the use of Summation would allow the defendants to expedite their preparation for trial. There is local precedent for a district court to appoint a discovery coordinator. Moreover, in prior cases where the Federal Public Defender’s Office hosted discovery using Summation, there was a substantial cost savings to the parties and the Court. Accordingly, the undersigned counsel respectfully request that the Court appoint the Federal Public Defender’s Office for the Northern District of Texas as the coordinating discovery attorney. WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court enter an Order granting this Motion and appointing the Federal Public Defender’s Office as the coordinating discovery attorney in this matter.
Respectfully Submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE ORDER
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA
§ § § § §
v. JOHN DOE
CASE NUMBER
UNOPPOSED MOTION TO CONTINUE DEFENDANT JOHN DOE’S TRIAL DUE TO COMPLEXITY
TO THE HONORABLE UNITED STATES DISTRICT COURT:
The defendant, John Doe, by undersigned counsel, hereby moves this Honorable Court, pursuant to 18 U.S.C. § 3161(h)(7)(B)(ii), to continue the trial of this case due to its complexity. As grounds for this motion, defendant states as follows: I. The defendant, John Doe, is charged in a one count indictment (plus a forfeiture count) with Conspiracy to Commit Money Laundering. The indictment spans nine (9) pages, lists two (2) unindicted co-conspirators, four (4) associated companies and encompasses a two (2) year timespan. This case is currently set for trial on April 18, 2022. On March 1, 2022, the government provided its first of three (3) rounds of discovery consisting of voluminous documents. The second round is promised to be delivered the week of March 7th and the third round the following week of March 14th or soon thereafter. An external hard drive will be required for the second round. II. This case is involved and complex. In order to provide effective representation, more time is needed to prepare for trial. By this motion, it is defendant’s request that the Court, in the interest of justice, continue this case to at least September, 2022. III. WAIVER OF SPEEDY TRIAL John Doe understands his constitutional and statutory rights to a speedy trial. For the reasons stated above, he deems it in his best interest to waive those rights. Assistant U.S. Attorney Nathaniel Kummerfeld does not oppose this motion.
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Undersigned counsel on behalf of his client, John Doe, waives his rights under the Speedy Trial Act (18 U.S.C. § 3161) in requesting this continuance. This motion is made in good faith and not for the purpose of unnecessary delay. The time between the granting of this motion, and the new setting will be deemed excludable time so that the ends of justice can be served for speedy trial purposes. IV. This continuance is not sought for delay, but to insure that justice is done.
Respectfully submitted,
/s/ Michael P. Heiskell Michael P. Heiskell Johnson, Vaughn, & Heiskell 5601 Bridge St., Suite 220 Fort Worth, TX 76112 Telephone: (817) 457-2999 Fax: (817) 496-1102 E-mail: mheiskell@johnson-vaughn-heiskell.com
/CERTIFICATE OF CONFERENCE/ /CERTIFICATE OF SERVICE/
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS SHERMAN DIVISION UNITED STATES OF AMERICA
§ § § § §
v. JOHN DOE
CASE NUMBER
MOTION FOR DISCOVERY OF DETECTOR DOG INFORMATION AND REFERENCED SUPRESSION MOTION IN SUPPORT THEREOF COMES NOW the defendant, John Doe, by and through his attorney, Michael P. Heiskell, and respectfully moves the Court for an Order requiring the government to disclose and allowing the defendant's attorneys to inspect, copy, photograph and possess those items set forth below: 1. The name and present address of the owner of the detector dog named "Rocco", allegedly utilized in this case. 2. The name and present address of the owner of the detector dog named "Homer", allegedly utilized in this case. 3. The name and address of Rocco's veterinarian. 4. The name and address of Homer's veterinarian. 5. All records, documents, transcripts, certifications, notes, memoranda or other documents, as well as any such information contained in any magnetic storage devices (e.g. computer hard drives, magnetic tape, floppy disks, and any other such storage media) concerning the following: a. Any and all training, testing or certification of the detector dog named "Rocco", allegedly utilized in this case. b. Any and all training, testing or certification of the detector dog named "Homer", allegedly utilized in this case. c. Any and all records of the job performance of the detector dog named "Rocco", allegedly utilized in this case, including, but not limited to, all records showing the number of times the dog has been exposed to suspected illegal material and the number of occasions on which Rocco has correctly alerted and the number of occasions on which the dog has incorrectly alerted. This request includes records of real exposures and simulated exposures conducted for testing purposes, and includes, but is not limited to, K-9 Narcotics Search forms, Detector Dog Utilization forms, and any other similar forms, whether relating to real or simulated situations and whether relating to closed or active cases of any government agency using the dog. d. Any and all records of the job performance of the detector dog named "Homer", allegedly utilized in this case, including, but not limited to, all records showing the number of times the dog has been exposed to suspected illegal material and the number of occasions on which Homer has correctly alerted and the number of occasions on which the dog has incorrectly alerted. This request includes records of real exposures and simulated exposures conducted for testing purposes, and includes, but is not limited to, K-9 Narcotics Search forms, Detector Dog Utilization forms, and any other similar forms, whether relating to Page 70 of 166
real or simulated situations and whether relating to closed or active cases of any government agency using the dog. e. With regard to the handler of the detector dog "Rocco" in this case, Agent Dick Hunter, the following: Any and all information concerning the handler's education and training in handling and interpreting signals given by detector dogs, including, but not limited to, the name and location of any school or class attended by the handler, the length of the training or education and interim and final grades, if any, received by the handler, any certification received by the handler, and any training or education the handler has received since being certified; and any and all information concerning the experience of the handler since he began handling detector dogs, including, but not limited to, records of all actual and simulated exposures of any detector dogs being handled by Detective Brad Angle to suspected controlled substances or items of property which might contain controlled substances, and records evaluating the accuracy of either the dog or the handler on those occasions. f. With regard to the handler of the detector dog "Homer" in this case, Agent Bill Dollar, the following: Any and all information concerning the handler's education and training in handling and interpreting signals given by detector dogs, including, but not limited to, the name and location of any school or class attended by the handler, the length of the training or education and interim and final grades, if any, received by the handler, any certification received by the handler, and any training or education the handler has received since being certified; and any and all information concerning the experience of the handler since he began handling detector dogs, including, but not limited to, records of all actual and simulated exposures of any detector dogs being handled by Agent Bill Dollar to suspected controlled substances or items of property which might contain controlled substances, and records evaluating the accuracy of either the dog or the handler on those occasions. 6. Any and all medical or veterinary records of the detector dog named "Rocco", allegedly utilized in this case. 7. Any and all medical or veterinary records of the detector dog named "Homer", allegedly utilized in this case. 8. The defendant specifically requests that the government permit defense counsel and/or their investigator, either Private Eye or Private Ear, to inspect, photograph and/or diagram the following: a. Those portions of DFW Airport which were involved in the instant case, including, but not limited to, the area at or in which the defendant's suitcase was allegedly exposed to a detector dog named "Rocco" on December 11, 2015. b. Those portions of DEA offices in the Dallas-Fort Worth areas, or any other location in or at which the aforesaid suitcase was allegedly exposed to a detector dog named "Homer" on December 11, 2015. Discovery and Suppression Motion In Support Of Motion In support of this motion, the defendant hereby incorporates, as if fully set forth herein, his Motion for Discovery of Documents Necessary for Preparation of Pretrial Motions, filed previously in this case, and the arguments and authorities set forth therein. As set forth more fully in the defendant's Brief in Support of Motion to Suppress, the validity of the extended detention of the suitcase depends, in part, on whether and how the detector dogs reacted to the suitcase and whether those reactions, if any, were sufficiently meaningful to supply probable cause. This is true with respect to both dogs allegedly involved in the instant case, since the government will rely upon the reactions of both dogs in attempting to sustain its burden of showing probable cause for the Page 71 of 166
extended detention and subsequent search of the suitcase. The defendant needs the aforesaid information in order to adequately prepare for cross-examination of the officers involved. WHEREFORE, the defendant prays that the Court issue an order in conformity with the above and foregoing and for such other and further relief as to the Court seems just.
Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 /CERTIFICATE OF CONFERENCE/ /CERTIFICATE OF SERVICE/
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA v. JOHN DOE
§ § § § §
CASE NUMBER
MOTION AND BRIEF FOR LIST OF WITNESSES AND WITNESS STATEMENTS The Defendant respectfully moves this Court for an Order directing the government to make available to the Defendant the following: 1. A written list of the names and addresses of all witnesses the government intends to call in their casein-chief, which list is to be provided sufficiently before trial to permit adequate defense preparation. 2. All written or recorded statements and all oral statements reproduced or summarized in any manner by any prospective government witness in connection with this case. 3. The names, addresses and statements, whether written, recorded or summarized in any manner, of all persons known to have knowledge of statements made by the Defendant which pertain to the subject matter of this indictment or knowledge pertaining to this case, or who have been interviewed by government agents in connection with this case. 4. A copy of all original notes and memoranda whether handwritten or otherwise, that may have been made by any and all state and/or federal agents investigating this case, including any person acting as an informant or in an undercover capacity. 5. The names and addresses of all witnesses and any documentary evidence known to or in the possession of the government which is favorable to the Defendant or which may lead to material exculpatory to the Defendant or which is material to the preparation of his defense under Brady v. Maryland, 373 U.S.83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). WHEREFORE, the Defendant respectfully requests that this Court issue an Order requiring the government to produce immediately each of the enumerated materials and information requested. MEMORANDUM OF LAW Disclosure of the names of witnesses to be called by the government at trial is a recognized federal practice. The defendant seeks also to have this Court set a reasonable time prior to trial within which such disclosure shall be made. Additionally, defendant requests disclosure of the addresses of such witnesses so that they may be interviewed by defense counsel. See United States v. Harris, 542 F.2d 1283, 1291 (7th Cir. 1976) and United States v. Ahmad, 53 F.R.D. 186, 191 (M.D.Pa. 1971). It is well settled that not all statements of prospective witnesses fall within the purview of 18 U.S.C. § 3500 (Jencks Act). If the statements are not recitals of past occurrences, but rather of contemporaneous occurrences, they are subject to pretrial discovery. Davis v. U.S., 413 F.2d 1226, 1231 (5th Cir. 1969). Furthermore, if the statements were made by persons the government does not intend to call at trial, they are likewise discoverable before trial under Fed. R. Crim. P. 16(a)(1)(C). See United States v. Marshak, 364 F.Supp. 1005 (S.D.N.Y. 1973). Page 73 of 166
Assuming that some of the statements requested can arguably be classified as Jencks Act material, the exigencies of the case commend their pretrial disclosure. Immediate production of this material should be encouraged for the purposes of allowing adequate defense preparation and achieving an orderly trial. United States v. Sebastian, 497 F.2d 1267, 1270 (2d Cir. 1974). Early disclosure of Jencks material will obviate the need for lengthy recesses during trial to allow defense counsel adequate time to read such material. The factors that warrant disclosure of the names, addresses and statements of witnesses who will be called at trial warrants the same disclosure as those who will not be called. See United States v. Houston, 339 F. Supp. 762, 766 (N.D.Ga. 1972) (disclosure of names and addresses of non-witnesses ordered). This Court should therefore exercise its discretion in favor of such disclosure.
Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 /CERTIFICATE OF SERVICE/
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA v. JOHN DOE
§ § § § §
CASE NUMBER
MOTION AND BRIEF TO COMPEL DISCLOSURE OF IDENTITY OF CONFIDENTIAL INFORMANT AND BRIEF COMES NOW, the defendant, JOHN DOE, by and through undersigned counsel, and hereby moves this Honorable Court to order the government to disclose the identity of the confidential informant in this case and to order that the government provide the defense with the correct address of said informant and/or make said informant available to the defense for the purpose of an interview. Additionally, the defendant seeks discovery of the informant’s prior record, promised immunities, and evidence of issues of bias or credibility, and moves the Court to order the government to produce this information. In support of this motion, defendant shows that he has previously made a request pursuant to F. R. Crim. P. 16 for this information, a copy of said request is attached. Defendant further moves the Court for an evidentiary hearing on this motion and requests that, pursuant thereto, the Court conduct an in camera examination of the confidential informant in this case. Defendant JOHN DOE was indicted on May 30, 2016, for delivery of cocaine base. The conduct referred to allegedly occurred on or about January 5, 2016. Discovery has revealed the following facts about the case: at the time of the alleged offenses, a civilian confidential informant (CI) was acting as an agent of the D.E.A. pursuant to an ongoing investigation of suspected narcotics dealings. The informant is alleged to have introduced Special Agent Battiste to a potential source of cocaine on January 5, 2016, and was present on January 5, 2016, when the cocaine was allegedly delivered by the same individual. The informant allegedly identified the deliverer as JOHN DOE. At all times relevant to the charged transactions the informant was not only a percipient witness, but was a participant in those transactions LAW The seminal case on the privilege afforded government informers and the circumstances requiring disclosure of their identities is Roviaro v. United States, 353 U.S. 53 (1957). In that case the Supreme Court explained: What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold rom disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. [Citations omitted.] The purpose of that privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that function. Roviaro, 353 U.S. at 59. However, the Court further explained that the privilege is limited by: Page 75 of 166
“...the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of his cause, the privilege must give way. [Footnote omitted.] In these situations, the trial court may require disclosure and, if the Government withholds the information, dismiss the action.” [Footnote omitted.] Roviaro, 353 U.S. at 60-61. In Roviaro, the Court articulated the method for evaluating whether the identity of a confidential informant should be ordered disclosed: The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors. Roviaro, 353 U.S. at 62. In evaluating claims for disclosure of an informant's identity, the Fifth Circuit has refined the principles enunciated in Roviaro to a three-part test: First, we evaluate the level of the informant's involvement in the alleged activity; the greater the participation, the more likely disclosure is required. Second, we consider the helpfulness of disclosure to the asserted defense. The third factor is the government's interest in nondisclosure. United States v. Toro, 840 F.2d 1221, 1232 (5th Cir. 1988), citing United States v. De Los Santos, 810 F.2d 1326, 1331 (5th Cir.), cert. denied, 108 S.Ct. 490, 98 L.Ed.2d 488 (1987). Defendant JOHN DOE submits to the court that he is entitled to know the identity of the confidential informant under the principles of Roviaro and the jurisprudence of the Fifth Circuit, as set forth in his argument below. ARGUMENT The instant case is so similar to Roviaro that, as a matter of law, the court should order the government to disclose the identity of the confidential informant. At least one Circuit has held that where a case bears strong similarities to Roviaro, disclosure of the informant's identity is required as a matter of law. In United States v. Price, 783 F.2d 1132 (4th Cir. 1986), the Fourth Circuit stated: Due to the similarities in these cases, it is clear from the record before this court that disclosure in this case was required as a matter of law. [Footnote omitted.] Price, 783 F.2d at 1140. All of the same factors which led the court in Price to conclude that disclosure was required as a matter of law are present in this case. Disclosure of the identity of confidential informant to the defense is required as a matter of law.
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Defendant further moves the court to order the government to produce the informant for an interview by the defense or, alternatively, to produce his current address. The Fifth Circuit has held that when "the court has ordered disclosure of [an informant's identity], the prosecutor must make known the informant's name and address and must make a reasonable effort to produce the informant at trial." Fitzpatrick v. Procunier, 750 F.2d 473, 476 (5th Cir. 1985). Furthermore, in order to more effectively interview the informant, the defense seeks discovery of the informant's prior record, promised immunities, and evidence of issues of bias or credibility. United States v. Auten, 632 F.2d 478 (5th Cir. 1980); Giglio v. United States, 405 U. S. 150 (1972); Johnson v. Brewer, 521 F.2d 556 (8th Cir. 1975); United States v. Lindstrom, 698 F.2d 1154 (11th Cir. 1983); United States v. Fowler, 465 F.2d 664 (D. C. Cir. 1972). Evidentiary hearing and in camera examination In the event that the Court is not satisfied with the showing of entitlement to disclosure set forth above, defendant further moves that the Court grant an evidentiary hearing thereon and conduct an in camera examination of the confidential informant whose identity is sought to be disclosed in order to determine the need for disclosure. As the Eighth Circuit has held, "[t]he District Court may undertake an inquiry into the facts without violating the informant privilege by holding an in camera proceeding to determine the materiality of the informant's knowledge [footnote setting forth procedure for such a hearing omitted]." United States v. Grisham, 748 F.2d 460, 462 (8th Cir. 1984); see also, United States v. Hurse, 453 F.2d 128, 130-31 (8th Cir. 1972), cert. denied, 414 U.S. 908 (1973), and authorities cited therein. Conclusion For the reasons stated above, defendant JOHN DOE is entitled to disclosure of the identity of the confidential informant. He is likewise entitled to have the government produce the informant for an interview and/or to provide the defense with the current address of the informant. He is further entitled to discovery of the CI's prior record, promised immunities, and any other information bearing on bias or credibility of the informant. Accordingly defendant respectfully moves the Court to order the government to produce this information and further moves for an evidentiary hearing on these issues, including an in camera examination of the CI. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 /CERTIFICATE OF CONFERENCE/ /CERTIFICATE OF SERVICE/
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA V. JOHN DOE (3), ET. AL.
§ § § §
CRIMINAL NO. 01:08-XXXXXXXXX
§
DEFENDANT’S MOTION FOR BILL OF PARTICULARS TO THE HONORABLE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION: COMES NOW JOHN DOE, defendant, by and through undersigned counsel and moves this court to order that the government, pursuant to Rule 7(f), counsel requests the government to clarify the indictment by filing a bill of particulars. In support of this motion counsel shows as follows: A. BILL OF PARTICULARS (RULE 7(f) Fed. R. Crim. P.) Counsel has finally completed an exhaustive review of the more than 10,000 pages in discovery provided by the government that encompasses alleged transactions in the states of Tennessee and Mississippi. Approximately 100 individuals are identified in the voluminous pages provided. The time frame encompassed in said discovery covers the time frame from 2006 until 2008, as to this alleged conspiracy. However, the indictment alleges a more expansive time frame from 2000 to 2008. In order to avoid any surprise and resulting prejudice as a result of government witnesses whose statements may not be memoralized or recorded in any way, and, thus, at this time not provided to counsel, the defendant respectfully requests this Court to Order the government to file a bill of particulars to inform the defendant more precisely the when, where and to whom the distribution was targeted during the time frame alleged. WHEREFORE, premise considered, Mr. Doe moves that the Court exercise its discretionary power under Fed. Rule Crim. P. 7(d), 7(f) and order the Government to file a bill of Particulars in this matter as more specifically requested herein by Mr. Doe. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF SERVICE/ and CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA
) ) ) ) )
v. JOHN DOE (1)
No. 3:00-cr-000-1
MR. DOE’S MOTION TO STRIKE SURPLUSAGE INTRODUCTION
In this case, the government has charged only bribery, but it has included language in the Indictment that could mislead the jury to convict on a basis that was not charged – a gratuity theory. To avoid having to dismiss the Indictment due to improper prejudice and unnecessary jury confusion, the Court should strike references in the Indictment concerning the uncharged gratuity standard. Additional language should be struck from the Indictment, which suggests that Mr. Doe engaged in criminal conduct that is not actually charged or that poses a risk of conviction for innocent conduct. ARGUMENT
I.
THIS CASE IS ABOUT BRIBERY, NOT GRATUITIES
The proper construction of Section 666 has divided federal courts and, as addressed in this Indictment, the jury may very well be confused as to what has been charged as well. While all courts agree that Section 666 criminalizes “quid pro quo bribes,” the circuits are divided as to whether Section 666 also criminalizes gratuities. Bravo-Fernandez v. United States, 137 S. Ct. 352, 361 n.4 (2016). The problem is due to Section 666’s awkward and ambiguous language regarding things being corruptly given “to influence or reward.” 18 U.S.C. §666(a)(2); see also id. §666(a)(1)(B) (“influenced or rewarded”). All courts agree that “when a payor intends to influence an official’s future actions, the payment constitutes a bribe,” but there is ambiguity in the word “rewarded.” United States v. Fernandez, 722 F.3d 1, 23 (1st Cir. 2013). Some circuits hold that “when a payor intends to reward the official’s past conduct (or future conduct the official is already committed to taking), the payment constitutes a gratuity” id., but other courts see “the traditional meaning of the term ‘reward’ as something offered to induce another to act favorably on one’s behalf (for example, a bounty offered for the capture of a fugitive),” id. (quoting United States v. Jennings, 160 F.3d 1006, 1015 n.3 (4th Cir.1998)). The latter circuits view “reward” as merely clarifying that a bribe can be promised before an official action is taken, but not paid until after the official action is complete. Id. Page 79 of 166
Whether Section 666 is purely a bribery statute or also prohibits gratuities is an open question in the Fifth Circuit. Some District Courts in the Circuit have assumed Section 666 criminalizes gratuities 5, while others have noted that it is a “reasonable interpretation” to conclude it only prohibits bribery. United States v. Little, 687 F. Supp. 1042, 1051 (N.D. Miss. 1988). Fortunately, this Court does not need to wade into the thicket of deciding whether or not Section 666 criminalizes gratuities because only a bribery theory is charged. The Indictment makes no mention of gratuities. Instead, it repeatedly charges bribery. II.
TO AVOID IMPROPER PREJUDICE AND JURY CONFUSION, THE COURT SHOULD STRIKE THE “REWARD” LANGUAGE FROM THE INDICTMENT
Despite alleging only bribery, there are two places in the Indictment that risk improper prejudice and juror confusion about whether Mr. Doe could be convicted under a gratuity theory. Count 1, Paragraph 15 of the Indictment charges that Mr. Doe acted “with intent to influence and reward Roe” and Count 2, Paragraph 17 charges that Mr. Doe acted “with intent to influence and reward Council Person A.” Just as several Circuit Courts have understood this “reward” language to reference gratuities, there is a very real danger that jurors will do the same, opening the door to juror confusion and a risk that a jury may convict based on an additional, uncharged gratuity theory. The solution is simple – strike the “and reward” language from Paragraphs 15 and 17. It is long-held, black-letter law that under Rule 7(d) the Court can strike surplusage from an indictment that serves “only to inflame the jury, confuse the issues, and blur the elements necessary for conviction,” United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971), and that warrants striking the “reward” language in this Indictment and omitting that language from any jury instructions. See United States v. Reed, 2016 WL 54903, at *2 (E.D. La. Jan. 5, 2016) (“[I]ndirect expressions, implied allegations, argumentative statements, and uncertainty due to generalizations in language, are defects in an indictment that may be fatal if struck at by a timely motion before trial.”) (quoting United States v. Williams, 203 F.2d 572, 574 (5th Cir. 1953)). This is the course recommended by Justice Sotomayor and the Second Circuit, and the Seventh Circuit warns that the failure to do so may result in reversible error. In United States v. Ganim, 510 F.3d 134, 151 (2d. Cir. 2007), then-Judge Sotomayor, writing for the Second Circuit, noted the risk of confusion in a Section 666 case based on bribery, where the “reward” language was used. There, the Court found that the use of the word One District Court interpreted United States v. Duvall, 846 F.2d 966 (5th Cir. 1988), as having found that “§ 666 criminalized bribery and gratuities,” but that appears to be a misreading of Duvall. United States v. Jordan, 2019 WL 1236792, at *8 (E.D. Tex. Feb. 26, 2019). In Duvall, defendants sought an instruction that a gratuity theory would be a defense to bribery under Section 666 and the Fifth Circuit assumed, “without deciding,” it was a defense, but there was no error in not giving the instruction because there was no “evidentiary basis in the trial record for the instruction.” Id. at 971-72. The Fifth Circuit noted that Section 666 “does not, by its terms expressly prohibit bribes and allow gratuities,” but found it “unnecessary to address the issue because . . . the government in this case undertook to prove bribery.” Id. at 971 n.6. The Supreme Court’s recent decision in Bravo-Fernandez catalogued the Circuits holding that Section 666 prohibited both bribes and gratuities, but omitted the Fifth Circuit from that list and did not cite Duvall. 137 S. Ct. at 361 n.4. Likewise, other courts that describe the Circuit split omit any mention of the Fifth Circuit or Duvall. See, e.g., Fernandez, 722 F.3d at 23.
5
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“rewarded” in the jury charge “introduced unnecessary ambiguity as it may have implied an illegal gratuity theory which the government, in fact, had not pursued.” Id. The Court went on to say: “Future courts, cognizant of the gratuity/bribery distinction in § 666 prosecutions, should endeavor to be more precise.” Id. That precision can be maintained in this case by omitting the “reward” language from the jury instructions and by striking the word from the Indictment. Judge Mazzant followed that advice in two opinions in United States v. Jordan. 2019 WL 1236792, at *8 (E.D. Tex. Feb. 26, 2019); 2018 WL 7571945, at *8 (E.D. Tex. May 10, 2018). Jordan was a bribery case under Section 666, and the Court agreed that its jury instructions “should omit language regarding a ‘reward’ since that only applies to §666’s prohibition on the receipt of gratuities.” Id. Accordingly, the Court chose to “define bribery pursuant to Section 666’s terms after omitting any references to an intent ‘to reward.’” Id. Because the same risk of prejudice and jury confusion is present when an uncharged basis for liability is presented to a jury through an indictment, as when an uncharged basis for liability is addressed in jury instructions, courts regularly strike that language from indictments as well. See, e.g., United States v. Pendleton, 2017 WL 1399571, at *2 (E.D. La. Apr. 19, 2017); Reed, 2016 WL 54903, at *2-3; United States v. Spalding, 2002 WL 818129, at *5 (S.D. Ind. Apr. 24, 2002). Presenting the gratuity theory of liability to a jury in a case that is based solely on bribery would constitute reversible error, as is demonstrated by United States v. Hawkins, 777 F.3d 880 (7th Cir. 2015) (Easterbrook, J.). Hawkins involved a prosecution for honest services fraud, which can be proven only through proof of bribery or kickbacks, but not proof of a gratuity. Nevertheless, in defining “bribery,” the trial “judge drafted an instruction that tracks § 666 (by including ‘reward’)” – explaining that the requisite intent for the alleged bribe recipient was to be “influenced or rewarded.” Id. at 882-83. The problem, of course, is that no applicable case law “holds that accepting a ‘reward’ without doing anything in exchange – or ever planning to – is ‘bribery’ that can support” an honest services fraud conviction. Id. at 884. The Seventh Circuit vacated the conviction because the alternative gratuity theory would have allowed the jury to “bypass” the charged theory of liability in reaching a conviction, and such an error could not have been harmless. Id. That same risk is present here if the very charges in the Indictment tell the jury it can convict if it finds an intent to “reward,” even if there is no intent to influence found. Therefore, it would be reversible error for this case to proceed to trial without the “and reward” language stricken from the Indictment. III.
THE COURT SHOULD STRIKE LANGUAGE SUGGESTING UNCHARGED CRIMINAL CONDUCT IN COUNT 1
Count 1 charges that Mr. Doe made improper payments to Roe from 2015 through 2017 for business reasons, and Count 2 alleges that Mr. Doe made an improper payment to Vick for political reasons in 2018 alone. There is no charge concerning any wrongdoing by Mr. Doe concerning 2015 through the beginning of 2019, but the Indictment suggests otherwise. Paragraph 2 states: “From in or around 2015 to in or around 2018, Doe engaged in a scheme to corruptly influence public officials related to Doe’s business interests within the City of Fort Worth and to further Doe’s political objectives.” This language should be struck for several reasons. Page 81 of 166
First, it improperly alleges criminality over a five-year span, when the actual counts of the Indictment clarify that no wrongdoing is charged for roughly three of those years. That is misleading and prejudicial. Second, it alleges a criminal “scheme,” but Mr. Doe is charged only with violating Section 666 which is not a scheme-based crime 6. Section 666 prohibits specific instances of quid pro quo bribery, which requires “the ‘bribe’ be made in connection with any business, transaction, or series of transaction[s] [sic] of the agency.” Waste Management of La., LLC v. River Birch, Inc., 2017 WL 3279455, at *6 (E.D. La. Aug. 2, 2017). That language is misleading, confuses the actual legal issues, and is prejudicial. Third, paragraph 2 misleadingly alleges a singular scheme (“a scheme”) with two objects, advancing Mr. Doe’s “business interests” and furthering his “political objectives” over a five- year span. Count 1 clarifies the “business interests” were only advanced through Roe and only from 2017 to 2019, and Count 2 clarifies that it was only a political objective pursued through Mr. Vick and in 2018 alone. That language is misleading, confuses the actual legal issues, and is prejudicial. Fourth, Paragraph 2 is unnecessary. It merely provides a misleading general summary. The specific allegations concerning Roe are in Paragraphs 6-10, and specific allegations concerning Mr. Vick are in Paragraphs 11-13. The more general paragraph is mere surplusage and can be struck, without removing any necessary fact alleged in the Indictment. Similarly, Paragraph 5 improperly suggests a longer period of criminality than what is charged in the Indictment. Section 666 requires that the alleged criminality take place within a one-year period in which the relevant agency, here alleged to be the City of Fort Worth, received “benefits in excess of $10,000 under a Federal program.” 18 U.S.C. §666(b). IV.
THE COURT SHOULD STRIKE EXTRANEOUS EVENTS IN COUNT 1
Count 1 alleges that Mr. Doe paid Roe bribes “in exchange for Roe’s official actions” (Dkt. 1 ⁋6), 7 which it then clarifies, “[s]pecifically, Doe paid Roe to” (1) “lobby for and vote to support Texas Department of Housing and Community Affairs (TDHCA) tax- exempt bonds and 9% tax credits for Doe’s project. This is the alleged quid pro quo. 8 6 Commonly charged crimes that punish a “scheme,” include mail fraud, wire fraud,
and bank fraud. 18 U.S.C. §§1341, 1343, 1344.
The Indictment would be unconstitutionally vague if it stopped here, simply alleging that Roe promised some unspecified “official actions,” but the Indictment then proceeded to identify the alleged acts “[s]pecifically.” The word “specifically” is a term of limitation, which clarifies the
7
Section 666 criminalizes “quid pro quo bribes.” Bravo-Fernandez v. United States, 137 S. Ct. 352, 361 n.4 (2016). The Fifth Circuit has explained that under Section 666, “[t]he decisive factor is that the public official has ‘corruptly entered into a quid pro quo, knowing that the purpose behind the payment that he received, or agreed to receive, is to induce or influence him in an official act.’” United States v. Grace, 568 F. App’x. 344, 350 (5th Cir. 2014) (quoting United States v. Valle, 538 F.3d 341, 347 (5th Cir. 2008)); see United States ex rel. Vavra v. Kellogg Brown & Root, Inc., 848 F.3d 366, 379 (5th Cir. 2017) (“Our Whitfield decision and the cases it discussed dealt with bribery, which requires a quid pro quo.”). “In other words, for bribery there must be a quid 8
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Later in Paragraph 10 of Count 1, however, the Indictment alleges “Doe also received Roe’s support with another city official.” Paragraph 10 should be struck because it is extraneous to the charged quid pro quo, and risks jury confusion as to what actions by Roe would constitute the quo. The alleged quid pro quo was for Roe to take the actions charged in Paragraph 7. The agreement is what is controlling. 9 The conduct charged in Paragraph 10 is not part of that corrupt agreement. Roe does not even tell Mr. Doe about his request to Official X until after he had made it – two months after he allegedly kept up his end of the alleged quid pro quo through his actions in February – which reflects that it was not part of the prior alleged quid pro quo agreement. Similarly, Doe does not appear to ask Roe to lobby for his project before TDHCA until that phone call, so that was not part of a prior quid pro quo, and Roe agreed to do so on the call without any talk of a bribe being offered or returned. All these actions simply reflect Roe doing his job, and helping to maximize the chances of TDHCA supporting development in the City of Fort Worth without any discussion of bribery whatsoever. The inclusion of this paragraph poses a risk of prejudice in that the jury may convict based on a different quid pro quo than the crime charged, or even a non-quid pro quo. Recounting all that Roe did to benefit Mr. Doe in this way poses a risk that the jury may mistake one of these later, innocent gestures as the quo, even though there is no evidence of a corrupt agreement concerning these actions. It does not matter that Mr. Doe did things to support what Roe cared about and Roe did things to support what Mr. Doe cared about, what matters is whether there is a negotiated corrupt exchange linking the two. Even if Ms. Roe took these actions out of gratitude for Mr. Doe’s prior support, or with the hope that Mr. Doe may return the favor in the future, that would not transform these actions into quid pro quo bribery. Including these alleged events does nothing to help prove the government’s case, and simply opens the door to potential jury confusion, so Paragraph 10 should be struck from the Indictment. 10 pro quo—a specific intent to give or receive something of value in exchange for an official act.” United States v. Sun-Diamond Growers, 526 U.S. 398, 404-05 (1999). The government must prove “the public official agreed to perform an ‘official act’ at the time of the alleged quid pro quo,” and that “official act” “must be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.” McDonnell v. United States, 136 S. Ct. 2355, 2371 (2016) (emphasis added); see id at 2365 (“[T]he offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts. . . .”) (emphasis added) (quoting Evans v. United States, 504 U.S. 255, 268(1992)). The government must prove the public official took an action, or agreed to do so, “on” that specific question. Id. at 2368 9
10
At oral argument in McDonnell, Justice Kagan took issue with “the way this indictment was structured” because instead of simply stating that “the ‘official act’ is getting the University of Virginia to do clinical studies,” the indictment used five paragraphs to take “a lot of different pieces of evidence that might relate to that ‘official act’ and charges them as ‘official acts’ themselves, so that the party becomes an ‘official act’ or calling somebody just to talk about the product becomes an ‘official act.’” Tr. of Oral Arg. at 53, McDonnell v. United States, 136 S. Ct. 2355 (2016). She was “troubled by these particular charges and instructions, which seem[]to make every piece of evidence that you had an ‘official act,’ rather than just saying the ‘official act’ was the –was the attempt to get the University of Virginia to do something that they wouldn’t have done otherwise.” Id. at 53-54. That criticism is equally applicable to this Indictment’s listing of events after the supposed “official actions” took place.
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CONCLUSION The Court should strike the “and reward” surplusage of Paragraphs 15 and 17 of the Indictment, Paragraphs 2 and 10 of the Indictment in their entirety, and the language “October 1, 2015, October 1, 2016” from Paragraph 5 of the Indictment to avoid improper prejudice and jury confusion. Dated: October 30, 2019 Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700
CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA Plaintiff, vs. JOHN DOE, et. al, Defendants
§ § § § § §
CRIMINAL CASE NO.
DEFENDANT JOHN DOE’S MOTION AND BRIEF IN SUPPORT OF PRE-TRIAL PRODUCTION OF ALL JENCKS ACT MATERIAL TO THE HONORABLE JUDGE OF SAID COURT: Defendant John Doe (“Doe”), by and through his attorney of record, moves this Court for entry of an order directing the Government to produce to Defendant Doe and his counsel at least one week in advance of trial of this matter all “Jencks Act” material pursuant to 18 U.S.C. § 3500 and FED. R. CRIM. P. 26.2. Defendant Doe is aware that the statute and rule above mentioned do not require delivery of the Jencks Act Materials on the date requested. Nevertheless, early disclosure of such materials would fulfill two goals. First, it would allow counsel for Defendant Doe to better prepare cross-examination of the witnesses, which is consistent with Defendant Doe’s due process rights and his entitlement to effective assistance of counsel. Second it will promote judicial economy and the proper administration of justice by avoiding delays, which would be caused if FED. R. CRIM. P. 26.2 and Section 3500 were strictly followed by having the Government provide such information only after the witness testifies. The fact that FED.R.CRIM.P. 26.2 (g) has been recently expanded to include production of Jencks material to several proceedings indicates a willingness on Congress’ part to make Jencks material available at an earlier date. The order requested is within the discretion of the Court. WHEREFORE, PREMISES CONSIDERED, Defendant John Doe respectfully requests that this motion be granted for the aforementioned reasons. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700
CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA vs. JOHN DOE, et. al.
§ § § § §
CRIMINAL DOCKET CASE NO.
DEFENDANT JOHN DOE’S MOTION AND BRIEF FOR PRE-TRIAL DISCLOSURE OF ALL EVIDENCE THE GOVERNMENT INTENDS TO OFFER PURSUANT TO RULE 404(B) OF THE FEDERAL RULES OF EVIDENCE TO THE HONORABLE JUDGE OF SAID COURT: Defendant John Doe (“Doe”), by and through his attorney of record, respectfully moves this Court for the entry of an order compelling the Government to disclose, prior to trial of this matter, all evidence that is intends to offer pursuant to Rule 404(b) of the Federal Rules of Evidence. Such disclosure should include, but not be limited to the following: 1. A description of the other crime, wrong or act the government intends to offer, including the date(s) or place(s) the other crimes, wrongs or acts allegedly occurred; 2. The names and addresses of all persons who were witnesses to or have knowledge of such crime, wrong or act; 3. Copies of all documents, materials, or other tangible objects which the government intends to offer into evidence in conjunction with such 404(b) evidence; 4. All evidence which is exculpatory within the purview of Brady v. Maryland, 373 U.S. 83 (1963), with regard to such other crimes, wrongs or acts evidence., i.e., all evidence which detracts from the probative value of such evidence, or which indicates that the probative value of the evidence might be outweighed by its prejudicial effect; and 5. A statement of the purpose for which such evidence is offered, i.e., a declaration from the government of whether the evidence is being offered to show motive, or opportunity, or intent, etc. WHEREFORE, PREMISES CONSIDERED, Defendant John Doe respectfully requests this Court to enter an order consistent with this motion, Respectfully submitted, Attorney for Defendant State Bar No. __________________ /CERTIFICATE OF SERVICE/ /CERTIFICATE OF CONFERENCE/
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA vs. JOHN DOE
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§ § § §
Cause No. ___________________
DEFENDANT JOHN DOE’S MOTION AND BRIEF TO PRESERVE AGENTS’ NOTES AND BRIEF IN SUPPORT TO THE HONORABLE JUDGE OF SAID COURT: Defendant John Doe (“Doe”), by and through his attorney of record, respectfully files this motion to preserve and review agents’ notes and in support thereof would respectfully show the Court as follows: Defendant Doe requests the preservation of all rough notes, memoranda, resumes, synopses, etc. taken by any and all Government agents and others who were present during interviews of Defendant Doe conducted prior to indictment. Defendant Doe is entitled to any written records containing the substance of relevant oral statements made by him according to FED. R. CRIM. P. 16(a)(1)(A). This Rule was amended in 1991 and effectively expands the earlier Rule, which required the Government to disclose only the “substance” of any oral statement, which the Government intended to offer into evidence at the trial. Thus, although the Defendant can and has presented compelling need for whatever rough notes of his interview might exist in the Government’s files, the Rule itself does not equivocate. The Defendant has requested whatever written records exist and therefore, the Government must disclose those written records to Defendant. Earlier cases have sometimes determined that the provision of final memoranda is an adequate substitute for rough field notes. See, e.g., United States v. Service Deli, Inc., 151 F.3d 938 (9th Cir. 1998). But the applicability of Brady is irrelevant; the possible inconsistency between the rough notes and final memoranda of interview is not relevant to the absolute disclosure requirements contained in Rule 16(a)(1)(A). Courts have defined the term “any” as used by Congress to be very expansive. See United States v. Gonzales, 520 U.S. 1 (1997) (“Read naturally the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’”); see also Berlanga v. Reno, 56 F.Supp. 2d 751, 760 n. 17 (S.D. Tex. 1999) (“when Congress says ‘any’ it means ‘any.....’”). Accordingly, when the Rule requires the production of “any” written record containing the substance of “any” relevant oral statement made by the Defendant, the Government should be required to produce any and all such written records, including rough notes. Moreover, some courts before the 1991 amendment of Rule 16 have required the in camera inspection of FBI notes of witness interviews under the dictates of the Jencks Act, 18 U.S.C. § 3500. See, e.g., United States v. Gaston, 608 F.2d 607 (11th Cir. 1979). In any event, such a conclusion is unnecessary given the current language of Rule 16. Here, the notes may assist the jury in deciding whether any of the alleged admissions contained in the typed memoranda of interviews were actual witness statements or merely the agents’ and lawyers’ after-the-fact summaries of what they hoped to be the responses to leading questions. Page 87 of 166
Granting the instant request imposes no undue burden upon the government since, as a matter of policy, FBI agents are already required to preserve all investigative notes until there has been final disposition of a matter. WHEREFORE, PREMISES CONSIDERED, Defendant Doe respectfully requests this Court to permit the inspection and copying of any handwritten notes taken by Government representatives during their investigation of Defendant Doe. Respectfully submitted, /S/ Attorney for Defendant State Bar No. 09383700 CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § Plaintiff § § VS. § CRIMINAL NO. § § JANE DOE (3) § Defendant DEFENDANT’S MOTION AND BRIEF TO REQUIRE THE GOVERNMENT TO COMPLY WITH RULE 106, FEDERAL RULES OF EVIDENCE TO THE HONORABLE JERRY BUCHMEYER, UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION:
COMES NOW, JANE DOE, Defendant in the above styled and numbered cause, and moves this Honorable Court to enter an order requiring the Government to be prepared at trial to comply with the provisions of Rule 106 of the Federal Rules of Evidence and in conformity with the Due Process requirements under the U.S. Constitution would show as follows: I. a. The defense knows that the Government intends to introduce at trial a large number of writings, recorded statements, and portions of same. Which such writings and statements, and what portions, the defense has no way of knowing at this time. b. When the Government introduces any writing or statement or part thereof, Rule 106 gives the defense the right to compel the Government to introduce at that time any other part of such writing or statement, or any other writing or statement which ought in fairness be considered contemporaneously with the offered material. c. To insure that Rule 106 is observed to avoid unfairness from the admission of less than all of a writing or statement when more will establish the proper context, setting, or meaning of same and to prevent delay at trial, the Court should instruct the Government prior to trial, to be prepared to comply with Rule 106 should demand be made. WHEREFORE, Defendant prays this motion be in all things granted. Respectfully submitted, Michael P. Heiskell State Bar No. 09383700 JOHNSON, VAUGHN, & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 (817) 496-1102 fax CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA § § VS. § CASE NUMBER § JOHN DOE § MOTION TO TAKE DEPOSITIONS PURSUANT TO 18 U.S.C. § 3503 AND RULE 15 OF THE RULES OF CRIM PRO. AND MEMORANDUM COMES NOW, the defendant, JOHN DOE, by and through his attorney, Peter Fleury, Assistant Federal Public Defender, and moves this Court for an order that the testimony of witnesses be taken by deposition. In support of said motion, counsel for the defendant states that there are numerous witnesses essential to the defendant’s case that are citizens of Pakistan, and whose visas expire on August 31, 2016. These are exceptional circumstances. Unless the trial is scheduled to be before August 31, 2016, these relevant and material witnesses will be lost forever. The Defendant’s counsel received from the Defendant letters sent to counsel care of the Defendant. The letters were postmarked in Nigeria. The Defendant submits these letters in support of the previous motion and requests that the Court reconsider its order denying the motion. The Defendant’s entire defense in this case is that the Defendant was told from his earliest memories that he was born JOHN DOE, that he was born in the United States, that he was a United States citizen, that his mother was a United States citizen, and that he always used the name JOHN DOE. The Defendant claims to have been told he was brought from America to Nigeria by his Nigerian father at a very early age. Attached are affidavits from the witnesses, as indicated above, indicating what their testimony would be if the Defendant had the ability to present it to the jury. There are, of course, many other people who could testify as to the name used by the Defendant throughout his life, and his state of mind regarding his place of birth. The defendant shall supply names and addresses and further notice shall be given as required by 18 U.S.C. § 3503(b). These witnesses, their testimony, and the evidence referred to are otherwise unavailable to the Defense. The Defendant does not have the funds to pay for the transportation of these witnesses, and knows of no procedure to otherwise secure their appearance at trial or otherwise produce their testimony. Unless the motion is granted, the Defendant will be denied his right to compulsory process for obtaining witnesses in his favor, a fair trial, due process, and the effective assistance of counsel as guaranteed by the fifth and sixth amendment to the United States Constitution. Attorney for the defendant /Certificate of Service/ /Certificate of Conference/
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA vs. JOHN DOE
§ § § § §
CRIMINAL NO.:3:00-CR-XXXX
DEFENDANT’S EX PARTE MOTION FOR LEAVE TO SERVE SUBPOENAS DUCES TECUM UNDER RULE 17(C) Pursuant to Federal Rule of Criminal Procedure 17(c), Defendant moves this Court for leave to file subpoenas duces tecum upon non-parties for production of books, papers, documents, or other objects to Defendant’s counsel prior to trial. These subpoenas are needed for defense preparation in this documentintensive case. A proposed order is attached which includes a protective order covering the subpoenaed documents. Respectfully submitted,
Attorney for Defendant State Bar No. ________________ CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA vs. JOHN DOE
§ § § § §
CRIMINAL NO.:3:00-CR-XXXX
ORDER GRANTING LEAVE TO SERVE SUBPOENAS DUCES TECUM UNDER RULE 17(C) Upon due consideration of the uncontested Motion of Defendants for Leave to Serve Subpoenas Duces Tecum upon non-parties for production of books, papers, documents, or other objects to Defendants’ counsel prior to trial, and pursuant to Fed. R. Crim. Proc. 17(c), it is hereby ORDERED THAT: 1.
Defendant is authorized to obtain through his respective attorneys the issuance and service of subpoenas duces tecum upon non-parties, commanding them to produce books, papers, documents or other objects described in such subpoenas for inspection by defense counsel and for use as evidence at trial. Such subpoenas may command the delivery of such materials to an attorney for the defendants on a date or dates prior to the commencement of the trial in this action.
2.
Materials produced by a non-party in response to a subpoena duces tecum served as authorized herein shall be deemed confidential and shall be subject to the restrictions on use and disclosure set forth herein, unless and until otherwise ordered by the Court.
3.
a)
Confidential materials produced in response to a subpoena duces tecum served as authorized herein may be used by the receiving counsel and by any other persons obtaining access to such materials hereunder only for the purposes of preparing for and conducting the trial of this action.
b)
Prior to the trial of this matter, confidential materials produced in response to a subpoena duces tecum served as authorized herein shall not be disclosed by the receiving counsel, not by any other persons obtaining access to such materials hereunder, except that (i) receiving defense counsel may disclose such materials to counsel for the Government if deemed appropriate; and (ii) counsel for the parties may disclose such materials to attorneys, legal assistants, and staff personnel associated with or employed by such counsel, to consulting and/or testifying experts or their employees or agents retained by such counsel to assist in the preparation and defense of this case, and to the individual Defendants represented in this action by such counsel, all for the purpose and to the extent required to assist in counsels’ preparation for and presentation of the case at trial.
Any of the parties may move the Court for an order authorizing disclosure or use of specific confidential materials to persons or for purposes not specified above or determining that specified materials are not confidential and are not subject to the restrictions of this paragraph (c). Any party moving for such an order hereunder shall give notice of its motion to all the parties and to the non-party by whom the materials that are the subject Page 92 of 166
of the motion were produced. Any such motion, or any other pretrial motion which discloses the contents or substance of confidential materials or to which such materials may be attached shall not be required to be disclosed to the Government, subject to further order of the Court. 4.
Nothing herein shall be construed or applied to prohibit or restrict the disclosure or use of any evidence, including evidence comprising, referring to or disclosing otherwise confidential materials, in the course of the trial or other public proceedings in this matter.
IT IS SO ORDERED. ________________________________ United States District Judge Signed at Dallas, Texas on the ____ day of _________________, 20____. ________________________________ United States District Judge
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA Plaintiff,
-vsJOHN DOE, Defendant.
} } } } } } } } }
CASE NO: 4: 1000 (Judge Means)
MOTION TO PERMIT JOHN DOE TO PRESENT DEFENSE WITNESSES BY VIDEO-CONFERENCE Defendant John Doe, by and through his undersigned counsel, respectfully requests that this Court permit counsel to present defense witnesses by video conference. In support of this motion, counsel would show as follows: 1. After the government rests its case, counsel for John Doe anticipates presenting testimony of a number of defense witnesses. Most of these witnesses reside in Louisiana and Mississippi. Most of these witnesses have jobs and cannot afford to be away from work. 2. It would be extremely expensive for John Doe to transport, house, and feed these witnesses in Fort Worth, Texas. It would be a financial hardship for these individuals to be away from work. These problems are particularly acute in a case such as this where it will be difficult to anticipate when their testimony will be needed. 3. These individuals can go to the Federal District Court in Shreveport to present their testimony. 4. Undersigned counsel has spoken with the facilities officer responsible for arranging a video conference in Shreveport, who stated that the District Court has the equipment to interface with this Court should this motion be granted. 5. If necessary, counsel can disclose the relevance of these witnesses to this Court ex parte. MEMORANDUM OF LAW Various courts have held that a defendant’s Sixth Amendment right to confrontation is not violated by the presentation of testimony by video conference so long as the witness: (1) is sworn; (2) is subject to full cross-examination; and (3) testifies in full view of the jury, court, defense counsel, and the defendant. United States v. Benson, 79 F.Appx. 813 (6th Cir. 2003) citing United States v. Gigante, 166 F.3d 75,80 (2d Cir. 1999). Other courts have sanctioned the process as well. See e.g., Garcia-Martinez v. City and County of Denver, 392 F.3d 1187, 1193 (10th Cir. 2004)(holding that trial court’s refusal to permit use of a deposition not an abuse of discretion where defendant had not shown that other means of presenting testimony had been pursued such as live video-conference); United States. v. Sotomayor-Vazquez, 249 F.3d 1, 13 (1st Cir. 2001) (defense witness presented at trial by video-conference). Cooey v. Strickland, Page 94 of 166
Slip Copy, 2009 WL 4842393, (S.D.Ohio 2009) (Live video testimony presented in Section 1983 civil rights action); United States v. Avery, Slip Copy, 2009 WL 5743215 (W.D.Tenn.2009)(Live video testimony by psychiatrist at competency hearing); Fuentes v. United States, Slip Copy, 2009 WL 1806660, (W.D.Va. 2009) (Defendant testified by live video at Section 2255 proceeding). Because the presentation of defense witnesses is necessary for John Doe to exercise his Sixth Amendment right to present a defense and his Fifth Amendment right to due process of law, the Defendant respectfully requests that he be permitted to present defense witnesses through videoconference. Respectfully submitted, /s/ Attorney for Defendant State Bar No. _________________ CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE ORDER
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IN THE UNITED DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA VS. JOHN DOE
§ § § § §
CRIMINAL NO. 4:00-CR-260-Y
DEFENDANT JOHN DOE’S MOTION FOR AUTHORIZATION TO MAKE LIMITED DISCLOSURE OF CONTENTS OF THE PRESENTENCE INVESTIGATION REPORT OF GOVERNMENT WITNESS RICHARD ROE TO THE HONORABLE JUDGE OF SAID COURT: Defendant John Doe seeks authorization of the Court to make limited disclosure of the contents of the Pre-Sentence investigation reports of the government witness, Richard Roe. In support of the same, the Defendant would show: A. The above named defendant has been convicted in this cause of count one of the indictment and is awaiting sentencing. The United States Probation Office has prepared or is preparing a Presentence Investigation Report to the Court. Within such report, in the portion relating to any adjustment for Acceptance of Responsibility will be a recitation of the defendant’s version of his offense behavior. Within such report (in Part B-Defendant’s Criminal History) will be a detailed recitation of the defendant’s criminal history and a description of any offenses of which the defendant was convicted or the facts relating to an arrest. Within such report (in Part C-Offender Characteristics), will be any information relating to the defendant’s mental and emotional health and any substance abuse, and the defendant’s employment record. B. The remaining defendant, John Doe, is currently scheduled for trial in this court on June 5, 2017. It is possible that the contents of the “defendant’s version” portion and Parts B and C of the presentence investigation reports of the convicted defendants may contain potential Brady/Giglio information as to John Doe. Under the rules of the Court, the contents of the presentence investigation report are confidential and not subject to disclosure. In order to avoid any potential claim of the suppression of Brady/Giglio material, the defendant seeks authorization to disclose (1) that portion of Part A of the report which contains any recitation of the defendant’s version of the offense conduct and (2) Parts B and C of each presentence investigation report to the undersigned attorney for your defendant. C. The granting of such authorization will avoid any necessity for the Court to have make an in camera examination of the presentence investigation reports. WHEREFORE, PREMISES CONSIDERED, the defendant prays that the Court will grant authorization to the Government to disclose (1) that portion of Part A of the report which contains any recitation of the defendant’s version of the offense conduct and (2) Parts B and C of each presentence investigation report to the undersigned attorney. Respectfully submitted _____________________________ Attorney for Defendant State Bar No.________________ Page 96 of 166
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA, Plaintiff vs. JANE DOE (3) Defendant.
§ § § § § § §
CASE NO. 3:15-CR-XXXX-(3)
MOTION TO DISQUALIFY ASSISTANT UNITED STATES ATTORNEY RICHARD ROE TO THE HONORABLE UNITED STATES DISTRICT JUDGE: COMES NOW, JANE DOE, Defendant in this cause, by and through his counsel of record and moves this Honorable Court to Disqualify Assistant United States Attorney Richard Roe to participate in the prosecution in this cause and would show as follows: I. BACKGROUND On May 1, 2013, a federal search warrant was executed at 305 Lancaster, Dallas, Texas at the home of the defendant’s mother. The execution of said warrant resulted in the seizure of certain weapons that resulted in the accusation contained in Count One of the indictment. The seizure of certain financial documents, as well as other items, form part of the allegations contained in the remaining counts of said indictment (Money Laundering). While the search was being executed, the defendant, who was present at the scene, was taken by the Agents to the local FBI office. While at the office, the agents conducted an interview of her regarding the allegations involving a drug conspiracy/money laundering case. During the course of the interview, AUSA Ryan Roe arrived and participated in the interview. Mr. Roe is currently lead counsel for the government in this case. The FBI 302 report confirm AUSA Roe’s presence and active participation. See Exhibit “A” the redacted report attached hereto and incorporated herein for all purposes.. Incriminating questions of Ms. Doe were asked during this interview including when the defendant’s alleged dealing in marijuana had ceased. Ms. Doe answered these and other questions before she invoked her right to counsel. These relevant questions go to the heart of Counts 2, 3 and 4 of the indictment alleging the conspiracy to launder financial instruments and the substantive money laundering counts. This contested issue regarding Ms. Doe’s interview was subsequently explored during Ms. Doe’s deposition held over a year later (2014) in connection with a separate civil forfeiture action by the government against certain real property owned by Ms. Doe. During said deposition, government counsel, AUSA Slick Willie, also of the Eastern District of Texas, questioned Ms. Doe regarding what he allegedly told AUSA Roe and the FBI regarding her alleged cessation of marijuana dealing. Ms. Doe disputed the leading question as follows: Page 97 of 166
“Q(by Mr. Willie): Okay. Do you recall telling Mr. Roe and the FBI shortly after the seizure warrant was executed last spring that your marijuana dealings had only ended one or two years prior to the warrant run last year? A: No sir. I didn’t recall that. If I did I might have told Michael Jackson that maybe, sir. Q: But you don’t recall telling Mr. Roe or the FBI agents that were in the meeting then? A: No sir. I have maybe have said years ago. Maybe I said years ago. I can’t recall that at all, but I know I may have told Jackson, but…” Deposition of Doe dated July 29, 2014, pages 73 and 74. See Exhibit “B” attached hereto and incorporated herein for all purposes. II. ADVOCATE-WITNESS RULE SHOULD RESULT IN DISQUALIFICATION The advocate-witness rule, with limited exceptions, bars a lawyer from acting as both an advocate and a witness in the same proceeding. See ABA Model Rules of Professional Conduct Rule 3. 7(a). In the instant case, AUSA Ryan Roe is a witness to the material and relevant answers elicited from Ms. Doe in this non-custodial setting at the FBI office. Ms. Doe has disputed, and continues to dispute, the government’s understanding of his answers to these questions material to the accusations contained in Counts 2, 3 and 4 of the indictment. Indeed, she waived her Fifth Amendment privilege in order to do so. This key contested issue as to when she last engaged in the marijuana trade is inextricably intertwined with the government’s theory that she engaged in said activities only a year or two prior to May 1, 2013. By attempting to establish such, it would bolster the government’s theory that monies received from his alleged marijuana dealings were the funds allegedly laundered during 2012 and 2013—the dates referenced in the indictment. It “is an almost universally frowned upon practice for a prosecutor to testify at the trial of the case he is prosecuting…” Riddle v. Cockrell, 288 F. 3d 713, 721 (5th Cir. 2002). Even a prosecutor/witness’s presence at counsel table at trial, without participating in questioning, “constitutes an impermissible dual role as both an advocate and witness. United States v. Torres, 503 F.2d 1120 (2nd Cir. 1974). It is evident that a trial involving the oral statements taken by the agents from Mr. Doe on May 1, 2013, would almost certainly involve AUSA Roe as a witness. Even a hint that he would be a possible witness is sufficient to uphold the disqualification of the lawyer. In a similar case in United States v. Jones, 381 F.3d 114 (2nd Cir. 2004), where defense counsel was deemed a possible witness, the court stated, “[t]he risk that [a lawyer will]become
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a witness at trial [is] enough alone to….reach this determination [to disqualify] under an abuse of discretion standard.” Jones at 121. The professional impropriety of assuming a dual role as advocate and witness has long been acknowledged by both the English and the American Bars. 11 The ABA Code of Professional Responsibility states as an “ethical consideration:” “The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.” 12 The ABA has also codified disciplinary rules designed to prevent this conflict of roles and to minimize its prejudicial potential when prevention is impossible. The ABA Standards Relating to the Prosecution Function, make clear that these rules of professional propriety are no less applicable to an attorney for the Government. 13 “The code of Professional Responsibility take a firm position that a lawyer should avoid testifying in court, when he is the advocate. ABA Code DR 5-102.” 14 The courts have shared the legal profession’s disapproval of the double role of advocatewitness. 15 In particular, the federal courts have almost universally frowned upon the practice of a Government prosecutor testifying at the trial of the case he is prosecuting, whether for 16 or against 17 the defendant, and have stated that the practice should be permitted only in extraordinary circumstances or for compelling reasons. 18 Where the prosecutor’s appearance as witness is unavoidable, the courts have stated that, in general, the prosecutor should withdraw from participation in the trial. 19 The reasons that have been cited for this judicial and professional reprehension of the testifying prosecutor include the following. First, there is the risk that the prosecutor will not be a fully objective witness: “It is obvious that the opportunity for tailoring a witness’ testimony to the needs of the Government’s case is maximized if recourse is permitted to the testimony of an experienced trial attorney who is Professor Wigmore finds the first expression of this principle in Anglo-American jurisprudence in Rex v. Milne, 2 B. & Ald. 606, note (ca. 1810), and Rex v. Brice, 2 B. & Ald. 606 (1819). 6. J. Wigmore, Evidence § 1911 n. 4. In this country, he cites (Id. at 787-88 n. 10) Reid v. Colcock, 1 N. & McC. 592, 597 (N.C. 1819), as stating that an attorney is not incompetent to testify, “but it is a matter of much delicacy,” and should be avoided unless indispensable. In Potter v. Inhabitants of Ware, 55 Mass. (1 Cush.) 519, 520 (1848), the principle that an attorney should not testify on behalf of his client was traced to Roman law. 12 American Bar Association, Code of Professional Responsibility EC 5-9 (1978) (hereinafter “ABA Code”). See also id. EC 5-10. 13 American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function (Approved Draft, 1971)(hereinafter ABA Standards). 14 Id. at 80. Accord. United States v. Alu, 246 F.2d 29, 34 (2d Cir. 1957). 11
15
E.g., United States v. Nobles, 422 U.S. 225, 253, 95 S. Ct. 2160, 45 L. Ed. 2d 141 (1975) (White, J., concurring); Hickman v. Taylor, 329 U.S. 495, 517, 67 S. Ct. 385, 91 L. Ed. 451 (1947) (Jackson, J., concurring) 16 Gajewski v. United States, 321 F.2d 261, 268 (8th Cir. 1963), Cert. denied, 375 U.S. 968, 84 S. Ct. 486, 11 L. Ed. 2d 416 (1964). 17 United States v. Alu, supra, 246 F.2d at 33-34. 18 United States v. Torres, supra, 503 F.2d at 1126; United States v. Clancey, supra, 247 F.2d at 636 19 Newman v. Sigler, 421 F.2d 1377, 1379 (8th Cir.), Cert. denied, 399 U.S. 935, 90 S. Ct. 2267, 26 L. Ed. 2d 808 (1970)
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interested in the successful presentation of that case. Especially in criminal litigation, where so much is at stake for the defendant, must the Bench and Bar demand adherence to a principle that is designed to ensure objectivity in the presentation of evidence” 20 Second, it is feared that the prestige of a Government attorney’s office will artificially enhance his credibility. Although jurors of varying degrees of sophistication will, of course, have different conceptions of the awe due to a public officer, it is widely hypothesized that “(a) jury naturally gives to the evidence of the prosecuting attorney far greater weight than to that of an ordinary witness. 21” A third consideration is that the prosecutor’s testifying might “create…confusion on the part of the jury as to whether he (is) speaking in his capacity of prosecutor or witness.” 22 Such confusion, besides disrupting the normal workings of the judicial mechanism, may result in the fact-finder according testimonial credit to the prosecutor’s closing arguments.” 23 While the above-cited reasons for the advocate-witness rule all reflect a policy of avoiding the slightest risk of prejudice to defendants, the most frequently cited justification for the rule reflects a broader concern for public confidence in the process of justice. The chief fear which underlies the ethical rule, it is commonly acknowledged, is not that the testifying prosecutor actually will overreach a hapless defendant, but that he will appear to a skeptical public to have done do. The legal profession’s disapprobation of the advocate-witness is thus closely to the injunction in Canon 9 of the ABA Code of Professional Responsibility that “(a) lawyer should avoid even the appearance of professional impropriety.” Particularly where the lawyer in question represents the prosecuting arm of the Government, the ethical rule serves to implement the maxim that “justice must satisfy the appearance of justice.” 24
20
United States v. Alu, supra, 246 F.2d at 34. Robinson v. United States, supra, 32 F.2d at 510. Accord, United States v. Treadway, supra, 445 F. Supp. at 962; Frank v. State, 150 Neb. 745, 35 N.W.2d 816, 821 (1949); See United States v. Pepe, 247 F.2d 838, 844 (2d Cir. 1957) (prosecutor ″threw his own weight into the scales against defendant″) 22 Newman v. Sigler, supra, 421 F.2d at 1379 (8th Cir. 1970). 23 See, e.g., Note, The Attorney as Both Advocate andWitness, 4 Creighton L.Rev. 128, 144 (1970) (hereinafter, Advocate and Witness); Note, The Advocate-Witness Rule: If Z Then X, But Why?, 52 N.Y.U.L.Rev. 1365, 1370 (1977) (hereinafter, Advocate-Witness Rule). 24 Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99 L. Ed. 11 (1954) (Frankfurter, J.). Accord, 2 J. B. Atlay, Victorian Chancellors 460 (1908) (quoting Lord Herschell): 21
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III. CONCLUSION In light of the facts in this case, it is more than a mere possibility that AUSA Roe will become a witness at the trial of this matter on the contested issue referenced above. Consequently, he should recuse himself at the earliest possible juncture. If he does not, the court should remove him. Respectfully submitted, /s/ Michael P. Heiskell Michael P. Heiskell Johnson, Vaughn, & Heiskell 5601 Bridge St., Suite 220 Fort Worth, TX 76112 Telephone: (817) 457-2999 Fax: (817) 496-1102 E-mail: mheiskell@johnson-vaughn-heiskell.com CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § § vs. § CRIMINAL NO. § JOHN DOE § MOTION AND BRIEF TO DISMISS (MISCONDUCT BEFORE GRAND JURY) NOW COMES JOHN DOE, Defendant, and moves to dismiss the indictment in this cause based upon misconduct before the grand jury and shows as follows: I. Undersigned counsel was faxed on Sunday afternoon, May 4, 2013, the grand jury transcript of testimony of case agent Frank Smith. In said transcript, it is apparent that the grand jurors were subjected to false and misleading statements made by agent Smith and the prosecutor. Said false and misleading statements include, but were not limited to the following: I. II. Agent Smith’ statement to the Grand Jury that Probationer Johnson has not been supervised by the defendant and that Johnson had paid “nothing” on his restitution during the 2012 calendar year. (Grand Jury transcript pp. 16-17) In truth and fact, the government’s own exhibit (Government Exhibit 27) reflects payment of $800.00 toward restitution in 2012. 2. Agent Smith’ contention that Johnson had completed or discharged a state probation, which should have lead to Johnson’s revocation of his federal probation (Grand Jury transcript pp. 17-18) In truth and fact, when a federal probationer discharges or completes a concurrent state probation, as was the situation in the instant case, there is no cause nor justification for the federal court to revoke this federal probation, unless other factors exist to reflect that he violated his federal probation for matters occurring during said probation. 1. Agent Smith’ allegation that your defendant received Mavericks tickets and other items of gratuities not alleged in the indictment. (Grand Jury transcript pp.19) In truth and fact, the government now claims that Johnson provided Cowboy tickets as opposed to Mavericks tickets. Furthermore, the government has chosen to redact a full page regarding this testimony before the grand jury without representing a compelling reason for doing so. Counsel submits that in redacting said testimony from defendant’s transcript, it is obvious something improper or inappropriate was stated to the grand jury regarding the defendant and/or Johnson that likely implies that the defendant engaged in more criminal activity than alleged in the indictment. Said implication is misconduct. United States v. Sigma Int’l., 244 F.3d 841, 854 (11th Cir. 2001). 2. Agent Smith’ statement to the Grand Jury that “....they just hit a lick, which in street terms means something is stolen.” (Grand Jury transcript p. 24) In truth and fact, said phrase “to hit a lick” does not mean something is stolen. It simply means that someone came across a good deal or received good fortune. 3. Agent Smith’ statement to the Grand Jury that Johnson stated to the defendant that he did not want to go to jail regarding the purchase of the digital camera. (Grand Jury transcript p. 25) In truth and fact, there is no such statement made by Johnson reflected in the taped conversations regarding this transaction as reflected in the government exhibits. Page 102 of 166
4. Agent Smith’ testimony to the Grand Jury that the items the Defendant purchased were believed by him to be “hijacked cargo” after said term was used by the prosecutor. (Grand Jury transcript p.28) This highly inflammatory term employed before the Grand Jury certainly implies more than the evidence reflects. There is no statement by Johnson, nor the defendant indicating that these matters were hijacked by anyone. Furthermore, once again the government redacts the remaining portion of Smith’ testimony, indicative of inappropriate comments. 5. Finally, Agent Smith tells the Grand Jury that your defendant “is known to have a lot of other things going on besides receiving stolen property, sexual favors, and other things.” (Grand Jury transcript p.29) This statement accuses the defendant of crimes not being investigated by the grand jury thus prejudicing the defendant. This is prohibited. See United States v. Hogan, 712 F.2d 757, 761-62 (2nd Cir. 1983). United States v. Feurtado, 191 F.3d 420, 423-25 (4th Cir. 1999). The cumulative effect of the transgressions committed before the Grand Jury has resulted in an improper influence over said Grand Jury and justifies dismissal. Respectfully submitted, _______________________ Attorney for Defendant State Bar No. ________________ CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § § vs. § NO. § JOHN DOE § MOTION AND BRIEF TO DISMISS COUNTS EIGHT AND NINE OF THE SUPERCEDING INDICTMENT (MULTIPLICITIOUS INDICTMENT) COMES NOW JOHN DOE, Defendant in the above-entitled and numbered cause and moves this Court to dismiss Counts Eight and Nine of the Superceding Indictment, filed May 20, 2016, for the reason that said counts are multiplicitious to counts Six and Seven of our indictment. Counts Six and Seven charge your defendant with violations of 18 U.S.C. § 201 (c)(1)(B) (Illegal Gratuity). Counts Eight and Nine charges violations of 18 U.S.C. § 201 (b)(2)(A) (Bribery of a Public Official). Counts Eight and Nine are based upon the identical set of facts as alleged in Counts Six and Seven and, are thus, multiplicitous. Indictments charging a single offense in different Counts are multiplicitous. See United States v. Miller, 576 F.3d 528, 531 (5th Cir. 2009), where indictment resulting in two (2) separate convictions of running over police officers in a motor vehicle. It is deemed multiplicitous because crime resulted from same conduct. Such indictments result in multiple sentences for a single offense, in violation of constitutional double jeopardy provisions. WHEREFORE, your defendant requests the Court dismiss Counts Eight and Nine of the Superceding Indictment. Respectfully submitted
Michael P. Heiskell State Bar No. 09383700 JOHNSON, VAUGHN, & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA vs. JOHN DOE
§ § § § §
CRIMINAL NO.:3:00-CR-XXXX
DEFENDANT’S MOTION AND BRIEF IN SUPPORT OF MOTION TO DISMISS COUNT ONE AS DUPLICITOUS JOHN DOE, the defendant, is charged in count one of the indictment, along with four other individuals, with conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base. The conspiracy count incorporates two separate and distinct crimes, one involving cocaine (punishable under 21 U.S.C. §841(b)(1)(A)(ii)) and the other involving cocaine base (punishable under 21 U.S.C. §841(b)(1)(A)(iii)). The sentence for violating the cocaine base statute far exceeds a sentence for violating the cocaine powder statute. Because the count charges [defendant] with two different crimes in a single count, the charge is duplicitous. The duplicity in this charge violates [defendant’s] constitutional rights to due process and a unanimous verdict. Therefore, the Court should dismiss count one. Duplicity occurs when two or more separate offenses are joined in the same count. An indictment that charges two conspiracies in a single count is duplicitous. See United States v. Robin, 693 F.2d 376, 378 (5th Cir. 1982) (“‘Duplicity’ is the joining in a single count of two or more distinct and separate offenses.”); see also United States v. Klinger, 128 F.3d 705, 708 (9th Cir. 1997) (same); United States v. Murray, 618 F.2d 892, 896 (2d Cir. 1980) (same). An indictment must be measured in terms of whether it exposes the defendant to any of the inherent dangers present in a duplicitous indictment. United States v. Alsobrook, 620 F.2d 139 (6th Cir. 1980). These dangers are 1) if the indictment count fails to inform the defendant of the charges against him, 2) if the defendant would be subject to double jeopardy, 3) if the defendant would be prejudiced by evidentiary rulings at trial, and 4) if the defendant would be convicted by less than a unanimous verdict. See Robin, 693 F.2d at 378. Here, at least three of the enumerated dangers of a duplicitous indictment are present, thus dismissal is warranted. First, count one fails to provide [defendant] with sufficient notice of the charges against him. This analysis begins the problems identified in [defendant’s] contemporaneously filed motion to dismiss or in the alternative for a fill of particulars for count one. The broad, vague and conclusory allegations of conspiracy are made even more problematic by fact that there are actually two different conspiracy charges set forth within count one. These problems are magnified because the “conspiracy doctrine is inherently subject to abuse and . . . the government frequently uses conspiracy to cast a wide net that captures many players . . . .” Thus, when evaluating a conspiracy charge courts must be “careful to guard against guilt by association, to ‘scrupulously safeguard each defendant individually, as far as possible, from loss of identity in the mass.” United States v. Evans, 970 F.2d 663, 668 (10th Cir. 1992) (quoting Kotteakos v. United States, 328 U.S. 750, 773 (1946)). Thus, particularly when combined with the other defects found in count one, the duplicitous nature of the count prevents [defendant] from having sufficient notice of the charge against him. Second, the wording of the indictment may enable the government to re-try [defendant] on nearly the same charge if the jury were to accept him on count one. Count one charges him with a conspiracy to possess and distribute cocaine and cocaine base. If the jury were to acquit [defendant] on this count, the government may re-indict [defendant] and charge him with possession with intent to distribute either cocaine or cocaine base. If [defendant] is acquitted in this case, the government would argue that the jury Page 105 of 166
concluded that [defendant] was not involved in a conspiracy involving both cocaine and cocaine base but just one or the other. Such a scenario would unfairly subject [defendant] to double jeopardy as much of the same evidence in this trial would be used against him in the next trial. Third, [defendant] is in danger of being convicted by a less than a unanimous jury verdict. Count one of the indictment is sure to confuse jurors as it incorporates several different crimes: a conspiracy, possession with intent to distribute cocaine base, and possession with intent to distribute cocaine powder. Matters are further complicated because the count involved four different individuals who have varying degrees of involvement. There is a significant likelihood that the jury might convict [defendant] without unanimously agreeing on [defendant’s] guilt of the same offense. WHEREFORE for the foregoing reasons, the defendant moves this Honorable Court to dismiss count one of the indictment. Respectfully submitted, [Counsel for Defendant] CERTIFICATE OF SERVICE I hereby certify that the foregoing pleading was served via first class mail upon: [Name/Address]
____________________ [Counsel for Defendant] Dated: ______________
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA v. JOHN DOE
§ § § § §
CASE NUMBER
MOTION AND BRIEF FOR SEVERANCE OF COUNTS COMES NOW, the defendant, JOHN DOE, by and through undersigned counsel, and moves the Court, pursuant to the provisions of Rules 8 and 14 of the Federal Rules of Criminal Procedure, for a severance of count three of the Indictment and for a separate trial as to count one for the reason that count three is misjoinded and the joinder of all three counts is prejudicial. RULE 8 MISJOINDER The gun the defendant possessed was not the gun used in the robbery and is not alleged in the indictment to be the gun used in the indictment. Rule 8(a) allows joinder of two or more offenses in a single indictment only if the offenses charged... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. The possession of a gun is not a crime that is the same or similar character as the commission of a robbery. The allegation that the defendant possessed a gun nearly two months after the alleged robbery is not based on the same act or transaction as the any of the robberies, nor can it be said to be based on any common scheme or plan connecting the earlier completed robberies. RULE 14 PREJUDICIAL JOINDER, AND RULE 404(b) Rule 14 states that "[i]f it appears that a defendant ... is prejudiced by a joinder of offenses .. in an indictment ... , the court may order a separate trial of counts ...". The alleged offense in count three is not the same or similar character as in counts one and two. The Fourth Circuit has said in U. S. v. Foutz, 540 F.2d 733, that where two or more offenses are joined for trial solely on the theory that offenses were of the same or similar character, three sources of prejudice may justify the granting of a severance: (1) the jury may confuse and cumulate evidence and convict the defendant of one or both crimes when it would not convict him of either if it could keep evidence properly segregated; (2) that the defendant may be confounded in presenting defenses, as where he desires to assert his privilege against self-incrimination with respect to one crime but not to the other; or (3) that the jury may conclude that the defendant is guilty of one crime and then find him guilty of others because of his criminal disposition. Foutz has an interesting factual basis because it involved two different robberies of the same bank within two and one-half months and the Court reversed for prejudicial joinder. The Court here admonishes at page 738 that "the only real convenience served by permitting joint trial of unrelated offenses against the wishes of the defendant may be the convenience of the prosecution in securing a conviction." Furthermore, the prejudice to the defendant is clear and unambiguous. By the inclusion of Count three, the jury will be told the defendant is a convicted felon. The distillation of centuries of Anglo-American jurisprudence developed the bedrock principal that a defendant is to be presumed innocent and tried based on evidence relevant to allegation, not based on his character or reputation. Thus, for these and for other reasons, proof of a defendant's prior conviction has been deemed too prejudicial and too lacking in probative value to be admissible against the defendant. The inclusion of count three would violate this fundamental precept of our law. The government would be allowed to present before the jury evidence Page 107 of 166
that would otherwise be admissible on the robbery, and use of a weapon during the commission of a robbery charges, severely prejudicing his right to a fair trial based on admissible evidence. The defendant is even further prejudiced by the misjoinder as the jury will here evidence that he possessed a weapon on a date subsequent to the robbery. This evidence also would have been inadmissible as to the first two counts absent the prejudicial joinder. WHEREFORE, the defendant prays that count three be severed from the indictment. Respectfully submitted, Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 /certificate of service/ /Certificate of Conference/
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA V. JOHN DOE (13), et. al.
§ § § § § §
CRIMINAL NO. 03:07XXXXXXXXXX
DEFENDANT’S MOTION AND BRIEF FOR SEVERANCE NOW COMES the defendant, JOHN DOE (hereinafter “Doe”) through counsel, and respectfully moves this Honorable Court for relief from improper and prejudicial joinder of your defendant in the Indictment under Rule 8, and pursuant to Rules 12 and 14 of the Federal Rules of Criminal Procedure, to sever and order a separate trial for this Defendant and certain others, on the following grounds: I. BACKGROUND Our Indictment is lengthy. It consists of six (6) separate conspiracies. The Indictment essentially charges the defendants with separate and unrelated schemes that lack the requisite sameness or commonality to permit their joinder of both offenses and Defendants under Rule 8 of the Federal Rules of Criminal Procedure. For example, Doe is charged with Conspiracy to Extort and Conspiring to Commit Money Laundering pursuant to said Extortion, a scheme that has no commonality in law, or in fact, to the four (4) separate conspiracies involving a combination of other co-defendants. Conversely, the other four (4) separate conspiracies and alleged overt acts involve separate schemes, have no commonality in fact, or in law, to defendant Doe. Yet all are in the same indictment. II. CUMULATIVE EVIDENCE Joint trail of these six (6) separate conspiracies, and other conspiracies within same, serve only to prejudice Doe by permitting a culmination of evidence on totally unrelated charges and defendants. Counsel is aware of the fact that evidence against co-defendants that “spill over” on a particular defendant is rarely sufficient to constitute “compelling prejudice.” However, our case is unique due to the extreme complex nature of the allegations, and the anticipated massive jury instructions that will be required to encompass six (6) separate conspiracies, and substantive counts that run the gamut from bribery of state and local officials (separate counts), to tax fraud and evasion (separate counts), to the forfeiture allegations. Our case presents an extreme and serious risk that the jury will be unable to make a reliable judgment about guilt, or innocence, despite any cautionary jury instructions. See Zafiro v. United States, 506 U.S. 534, 539 (1993). If defendant Doe is tried with the other defendants in this case, charged in the four (4) separate conspiracies and varied substantive counts, he will be materially prejudiced because of the confusion engendered in the minds of the jury as to each defendant’s actual role and activities in the unrelated Page 109 of 166
transactions in this indictment. The jury may cumulate that evidence of the various offenses charged and find guilt, when, if considered separately it would not so find. Doe will be prejudiced by the interacting effect of the cumulative evidence for each offense and each defendant and overburdened by the presentation of simultaneous and separate defenses due to the improper joinder of counts and defendants. III. CO-DEFENDANTS STATEMENTS Doe will be prejudiced by the admission in evidence of co-defendant statements through audiotapes and other evidence, which prejudice cannot be dispelled by cross-examination if the codefendant does not take the witness stand and testify. Limiting instructions to the jury in this regard will unlikely erase the prejudice. IV. MISJOINDER The key language for analysis under Rule 8 (b) is that the defendants be charged with having “participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” United States v. Helms, 897 F.2d 1293, 1299-1300 (5th Cir. 1990). To define the “same act or transaction” of a number of defendants is truly to define the concept of a conspiracy, and the courts have so held. See, e.q., United States v. Broussard, 80 F. 3d 1025, 1036 (5th Cir. 1996); United States v. Polk, 56 F. 3d 613, 632 (5th Cir. 1995); United States v. Box, 50 F. 3d 345, 357 (5th Cir. 1995). Some courts have found it useful to analogize a conspiracy to a wheel: “For a wheel conspiracy to exist those people who form the wheel’s spokes must have been aware of each other and must do something in furtherance of some single, illegal enterprise. Otherwise the conspiracy lacks ‘the rim of the wheel to enclose the spokes.’” Levine, supra at 663, quoting Kotteakos v. United States, 328 U.S. 750, 755, 66 S. Ct. 1239 (1946). In sum, the essence of a common plan (not “several similar plans”) must be adequately alleged in the indictment for it to pass the test of Rule 8(b), and this indictment manifestly does not. V. Prejudicial Joinder Rule 14(a) provides, as a separate and additional source of relief available to Doe, that the court may order separate trials of defendants even if they are not misjoined under Rule 8(b): The question of whether to sever the trials is in the sound and broad discretion of the trial judge. United States v. Hernandez, 962 F. 2d 1152, 1157-68 (5th Cir. 1992). See also, Schaffer v. United States, 221 F2d 17(5th Cir. 1955). Doe cannot receive a fair trial without severance for all reasons cited hereinabove under “Misjoinder.” The injustice and denial of due process would be serious enough if the government could “prove” one offense by merely providing a second offense of similar character (the so-called “spill-over” effect) 25.
25
Illustrated in United States v.Mitchell, 31 F. 3d 271, 276 (5th Cir.),cert.denied, 513 U.S. 977 (1994).
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WHEREFORE, defendant John Doe prays for severance from each and every defendant indicted in the four (4) separate conspiracies, and the above referenced substantive counts, and for his separate trial as to each conspiracy alleged against him in the indictment. Respectfully submitted, /S/ Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700
CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA v. JOHN DOE
§ § § § §
CASE NUMBER
UNOPPOSED MOTION FOR LEAVE TO FILE MOTION TO SUPPRESS STATEMENTS AND MEMORANDUM (MOTION INCORPORATED) 1. MOTION FOR LEAVE Now comes Defendant JOHN DOE, through undersigned counsel, and requests leave to file a motion to suppress statements the defendant is alleged to have made to his parole officer. The defendant’s attorney simply failed to recognize this issue. Counsel assumed the statements were made in a non-custodial setting, but it is clear that the statements were made while the defendant was in custody. Although trial is presently scheduled for August 21, 2016, the defendant is filing, contemporaneously with this motion, a motion to continue the trial setting, thus, if that motion is granted, leave to file this motion should not cause any undo scheduling problems for the court or the government. Leave should be granted pursuant to Fed. R. Crim. P. 12(f) to enable the defendant to receive effective assistance of counsel as guaranteed by the Fifth and Sixth Amendments to the United States Constitution. 2. MOTION TO SUPPRRESS (TO BE CONSIDERED, IF LEAVE TO FILE IS GRANTED) A. Factual Background: The defendant was arrested on March 15, 2016, on a parole violator’s warrant. The offense alleged in the indictment is based on facts and evidence surrounding this arrest. Subsequent to the arrest the defendant was interviewed by his parole officer. There is no indication in the discovery provided by the government that the defendant was read his rights as required in B. Law and Argument: As the Fifth Circuit has noted: The government bears the burden of proving by a preponderance of the evidence that both the waiver of Miranda rights and the confession were voluntary. Colorado v. Connelly, 479 U.S. 157, . . . (1986); Lego v. Twomey,404 U.S. 477, . . . (1972); United States v. Terrazas-Carrasco, 861 F.2d 93, 95 (5th Cir. 1988). United States V. Raymer, 876 F.2d 383, 386 (5th Cir. 1989), cert. denied, 493 U.S. 870 (1989). The Fifth Circuit has also noted, where an in custody defendant was questioned by his parole officer: . . . We have considerable doubt as to the propriety of even calling the parole officer as a witness for such a purpose. But, pretermitting that, we have no doubt that the testimony was inadmissible unless the officer gave prior Miranda warnings. A parolee is under heavy psychological pressure to answer inquiries made by his parole officer, perhaps even greater than when the interrogation is by an enforcement officer. The use of admissions extracted in this manner from the parolee, in his trial on charges based on the criminal conduct inquired about, raises an issue significantly different from that in United States v. Johnson, 455 F.2d 932 (5th Cir. 1972). There we held that because a parole revocation hearing was not an adversary or a criminal proceeding but rather was an administrative hearing wherein the exclusionary rule has no application, prior Miranda warnings are not required as a condition to the admission in evidence at the revocation hearing of statements made by the parolee to the parole officer. Page 112 of 166
United States v. Deaton, 468 F.2d 54, 544 (5th Cir. 1972), cert. denied, 410 U.S. 934 (1973). Conclusion The defendant prays that this court grant leave to file the defendant’s motion to suppress the defendant’s statements to his parole officer. Furthermore, the defendant prays that if leave is granted, the court will consider the motion to suppress statements in this case, and absent a factual response by the government that indicates the motion should be denied, grant this motion to suppress statements. If the government avers that the Miranda warnings were given, and the defendant voluntarily waived his rights, the defendant requests a hearing on the matter. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION UNITED STATES OF AMERICA, v. LEAMON RAY CAVITT, JR.
§ § § § §
CRIMINAL NO. 4:02-CR-108
MOTION TO SUPPRESS AND SUPPORTING BRIEF Defendant, Leamon Ray Cavitt, Jr., by and through his counsel, Michael P. Heiskell, pursuant to the Fourth Amendment to the Constitution of the United States, hereby respectfully moves the Court to suppress both the physical evidence seized from Defendant and the statements 26 made by him following the unduly extended traffic stop and detention underlying this case. BRIEF IN SUPPORT OF MOTION TO SUPPRESS I. STATEMENT OF UNCONTESTED FACTS The facts set forth herein are based on the Department of Public Safety Videotape previously filed in this case, the Fifth Circuit opinion in United States v.Cavitt, 550 F.3d 430(5th Cir. 2008) and the Joint Pre-Trial Hearing Order filed as Document # 24 in related case No. 4:04-CV-219 and are both undisputed and dispositive of this case. 1. On October 28, 2002, at approximately 7:17 p.m., Department of Public Safety Trooper Nick Granelli stopped Cavitt for speeding and failing to signal a lane change on U.S. Highway 75 in Sherman, Texas. 2. Granelli approached the passenger side of the van Cavitt was driving, leaned into the window due to the fact that it was raining, and asked Cavitt for his driver's license. 3. After looking at the license Cavitt presented, Granelli commented on the fact that the license did not resemble Cavitt, stating, "Boy, you've changed a lot in this picture. Lost a bunch of weight?" 4. Cavitt informed Granelli that he was traveling back to his home in East St. Louis, Illinios, after visiting his daughter in Lancaster, Texas. 5. Granelli requested rental documents for the van, which Cavitt provided. The documents revealed that Cavitt had rented the van on October 27, 2002, at 12:21 p.m., and that it was due back on October 29, 2002. 6. Granelli asked for permission to sit in the passenger seat to get out of the rain. Inside the van, Granelli noticed several bags inside. 7. Granelli returned to his patrol car to check Cavitt's license and issue a warning. Inside the vehicle Granelli stated suspicions he had about Cavitt's behavior and stated to ride-along detective Jon Britton, "I sure would love to search this guy." 8. After a brief further discussion, Granelli “proposed a plan: ‘I’m going to tell him we’re gonna have to get off the road.’ He radioed Cavitt’s driver’s license number and tag information to dispatch and mused: ‘I wonder if there’s some place we can get out of the weather. ” After again discussing the details of the van rental, Granelli again said “I think I’m going to see if he’ll follow me up to the Texaco station.” Ultimately, “Granelli resolved: ‘I’m gonna just go say – see if he’ll follow me over there, so I can get my business done without get everything wet. Think that will alarm him too much if I go do that?’” 26 As of July 20, 2009, the Government has not provided Defendant’s counsel with any statements allegedly made by Defendant. If such statements exist and the Government intends to use them, Defendant will address them in due course once the Government discloses them. Page 114 of 166
9. The license check came back negative. 10. Granelli approached the van and said to Cavitt “I’ve got a warning for you to sign but I can’t do it in this weather; can you follow me here up the road and we’ll get out of the rain real quick?” Caviit agreed and complied. 11. Approximately six minutes later, at Exit 56, both vehicles pulled under an overhang. Both officers approached Cavitt’s van. Granelli did not ask Cavitt to sign the warning and did not return his driver’s license. Instead, he told Cavitt that he was previously unable to examine the rental papers due to the rain and asked to see them again. The officers also had Cavitt exit the van. 12. Granelli and Britton asked Cavitt more questions about his travels, whether there was a drug problem in East St. Louis, and whether Cavitt had ever used drugs. Cavitt admitted having used marijuana nine years ago. Granelli asked Cavitt whether anyone had ever asked him to haul drugs. Cavitt answered “no” and denied that there were any drugs in his van. 13. Granelli asked for permission to search the mini-van, and Cavitt responded, "Yeah, sure." 14. As Granelli and Britton were searching the van, Cavitt attempted to drive away and a struggle ensued. The officers did not return Cavitt’s driver’s license prior to searching the van. 15. Five kilograms of cocaine were located inside the van. II. ARGUMENT As succinctly stated by the Fifth Circuit in United States v. Cavitt, 550 F3d 430, 435 (5th Cir. 2008), citing United States v. Thomas, 12 F.3d 1350, 1366 (5th Cir. 1994) “[e]vidence obtained by the government in violation of a defendant’s Fourth Amendment rights may not be used to prove the defendant’s guilt at trial.” In connection with a traffic stop, a Fourth Amendment violation occurs when the detention extends beyond the valid reason for the stop. United States v. Cavitt, supra, at 436, citing United States v. Santiago, 310 F3d 336, 341-342 (5th Cir. 2002). More specifically, once the officer has verified that the vehicle in issue is not stolen and that defendant does not have any warrants outstanding, he must either issue a citation or warning and allow the defendant leave, unless the officer has a reasonable suspicion - supported by articulable facts - that a crime has been or is being committed. Id. No such suspicion or facts exist in this case. On the contrary, the DPS videotape and the undisputed facts set forth herein plainly show that the officers did not have a “reasonable suspicion” nor any “articulable facts.” The officers knew that they did not have them and decided to concoct and implement a scheme to trick Defendant into following them to a location several miles away from the initial traffic stop so that they could carry out their illegal plan to search his vehicle at any cost. The detention, then, was plainly and unduly extended beyond the initial reason for the stop. Thus, the subsequent search — at the second location – was not reasonably related to the circumstances justifying the traffic stop and violated Defendant’s Fourth Amendment rights. Id. To the extent that Defendant “consented” to the search at the second location, it was invalid as a matter of law because ‘“Consent” induced by an officer’s misrepresentation is ineffective.”’ United States v. Cavitt, supra, at 439, citing United States v. Webster, 750 F.2d 307, 322 (5th Cir. 1984). The videotape and the undisputed facts set forth herein also show that the “consent” was invalid because it was involuntary and the product of coercion due to defendants’ illegal detention and the officers’ continued interrogation and failure to return his driver’s license. United States v. Cavitt, supra, at 439 , citing United States v. Jenson, 462 F3d 399, 407 5th Cir. 2006). See also, United States v. Jones, 234 F3d 234, 242 (5th Cir. 2000).
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CONCLUSION Since all of the evidence seized in this case was seized after Defendant’s illegal detention and removal to a location several miles from the initial traffic stop, it should all be suppressed. Respectfully submitted, /s/ Michael P. Heiskell Texas State Bar No. 09383700 JOHNSON, VAUGHN, & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 (817) 496-1102 facsimile
CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA
§ § § § § §
V. JOHN DOE(3), ET. AL.
CRIMINAL NO. 01:08-CR-XXXXX
DEFENDANT JOHN DOE’S MOTION TO SUPPRESS MISSISSIPPI TITLE III COMMUNICATIONS FOR FAILING TO COMPLY WITH SEALING REQUIREMENTS TO THE HONORABLE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION: COMES NOW Defendant, JOHN DOE, by and through his attorney of record, and respectfully moves the Court for an order suppressing any and all evidence obtained from applications and orders pursuant to Title III authorizing the interception of wire communications, and all evidence derived therefrom, as a result of the Government’s failure to comply with immediate sealing requirements, and for cause would show unto the Court the following: I. STATUTORY AUTHORITY The statutory authority for interception of wire, oral, or electronic communications is found in 18 U.S.C. § 2518 et seq. The specific authority relative to the sealing requirements is found in 18 U.S.C § 2518(8)(a) which provides in part as follows: “…the recording of the contents of any wire, oral, or electronic communications under this subsection shall be done in such a way to protect the recording from editing and other alterations. Immediately upon the expiration of the period of the Order, or extensions thereof, such recording shall be made available to the Judge issuing such Order and sealed under his directions…. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom, under subsection (3) of § 5217.” (emphasis added). II. FACTUAL BACKGROUND The wire communications sought to be intercepted and monitored was a cellular telephone number subscribed by Sherrell Crawford of Gulfport, Mississippi, in possession of and utilized by coPage 117 of 166
defendant, Derek Pettis. Your defendant, John Doehas been identified by the Government as having his voice captured on said recordings. He, therefore, has standing as an aggrieved person. On May 22, 2007, this court ordered the authorization of a thirty (30) day interception of wire communication based upon an Application for said interception being filed by the Government. (Appendix: Exhibit A). On May 22, 2007, the interceptions apparently commenced. The thirty day order granted on May 22, 2007, would expire thirty (30) days from said date, or more specifically on June 21, 2007. At the expiration of the Court Order [June 21, 2007] no immediate Order to Seal the audiotapes derived from the interceptions recorded between May 22, 2007, and June 20, 2007, was Ordered by the Court. However, an Order was entered on June 25, 2007, for said recordings to be sealed (Appendix: Exhibit B). The Order to seal was entered four (4) days from the date of expiration from the original order and five (5) days after the interception was terminated. In addition, there exists a Nunc Pro Tunc Order for sealing of this same information dated July 12, 2007, seventeen (17) days from the date of the original order and eighteen (18) days after the interception was terminated. III. SUPPRESSION WARRANTED FOR FAILURE TO COMPLY WITH 18 U.S.C. § 2518 (8)(a) All materials intercepted as a result of the Order of May 22, 2007, (Appendix: Exhibit A) including, but not limited to, audio conversations, monitor logs, minimization logs, and reports of activity should be suppressed as a result of the Government’s failure to comply with the immediacy requirements of 18 U.S.C. § 2518(8)(a). The Order of May 22, 2007, (Appendix: Exhibit A) was terminated on June 21, 2007. No sealing Order was entered until June 25, 2007, (Appendix: Exhibit B), four (4) days after the expiration of the June 21, 2007, Order, and five (5) days after the interception terminated. A Nunc Pro Tunc Order of Sealing covering the same information was issued even later – July 12, 2007. Finally, all material intercepted as a result of any subsequent interception Orders including, but not limited to, audio conversations, monitor logs, minimization logs, reports of activity should be suppressed because such interceptions were predicated, in part, on information illegally obtained by the May 22, 2007, Order, (Appendix: Exhibit A). Such material, illegally obtained because it failed to comply with the sealing requirements of 18 U.S.C. § 2518(8)(a), has so tainted any subsequent Orders to intercept, as to make it unsupported by probable cause as a matter of law. WHEREFORE, it is respectfully prayed that all material seized pursuant to the Orders for interception of wire communications from the cellular phone described above be suppressed, and for such other and further relief to which he may justly entitled. Defendant further prays for the Court to Order a pre-trial hearing on this motion. Respectfully submitted, /s/ Attorney for Defendant Texas State Bar No. __________________ CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE Page 118 of 166
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA V. JOHN DOE (3), ET. AL.
§ § § § § §
CRIMINAL NO. 01:08-CRXXXXXXX
DEFENDANT JOHN DOE’S BRIEF IN SUPPORT OF BOTH MOTIONS TO SUPPRESS TITLE III INTERCEPTIONS (MISSISSIPPI AND TENNESSEE) TO THE HONORABLE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION: Defendant, John Doe (“Doe”), files this his Brief in Support of His Motion to Suppress seeking to suppress all material seized as a result of interceptions pursuant to Title III, 18 U.S.C. § 2510 et. seq., and the Orders of May 22, 2007, September 11, 2007, and October 22, 2007. TITLE III INTERCEPTIONS The interception of wire, oral and electronic communications is governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C § 2510 et. seq. The interception of “Title III” communications requires a court order based upon an application by an authorized applicant that sets forth “a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including” the nature of the crime being committed, the identity of the person committing the offense who is to be intercepted, the types of communications to be intercepted and a particular description of the facilities or place subject to interception. 18 U.S.C. § 2518(1). Title III requires the applicant for an order to provide, “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c). Title III authorizes the interception of wire, oral or electronic communications for a period up to, but not to exceed thirty (30) days. See 18 U.S.C. § 2518(5). The authorizing court may grant extensions of the original interception order but such extensions may not exceed thirty (30) days in duration. See id. DELAY IN OBTAINING SEAL REQUIRES SATISFACTORY EXPLANATION Section 2518(8)(a) provides, “[i]mmediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.” Title III provides and exclusionary rule for failure to comply with the sealing requirements of the statute. It states, “[t]he presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral or electronic communication or evidence derived therefrom…” 18 U.S.C. § 2518(8)(a). The purpose of the seal is to ensure that the government has no opportunity to edit or alter the recordings. See id. The government must provide a “satisfactory explanation” both for the complete Page 119 of 166
absence of a seal and for a delay in obtaining the seal. See United States v. Ojeda-Rios, 495 U.S. 263-64 (1990). WHEN A NEW ORDER IS CONSIDERED AN “EXTENSION” Because Title III’s sealing requirements is triggered by the expiration of the order or any extension thereof, the determination of whether s subsequent order is a new order or an extension of the first is critical to a determination of compliance with Title III’s sealing requirement. Accordingly, the court’s analysis begins with a determination of whether each subsequent order qualifies as an extension of the original. As a threshold matter a subsequent order must authorize surveillance of the same subject, at the same location, regarding the same subject matter as an earlier authorized surveillance in order to be considered an extension. See United States v. Carson, 969 F.2d 1480, 1488 (3rd Cir. 1992). In addition, the subsequent order must cover the same communication facility as the prior order to qualify as an extension of the first. See United States v. Ojeda-Rios 875 F.2d 17, 21 (2nd Cir. 1989), vacated and remanded on other grounds by 495 U.S. 257 (1990). Though an extension need not be obtained prior to the expiration of the first order, a subsequent authorization qualifies as an extension of the earlier order only if the new authorization is obtained as soon as administratively practical or any delay is satisfactorily explained. See Carson, 969 F.2d at 1488. Short administrative delays resulting from the process required to comply with the Title III are permissible. See id. Other gaps between original order and extension require an objectively reasonable and satisfactory explanation by the government. See id. Nonetheless, there is a temporal limit and some gaps – even those for which the government has an objectively reasonable and satisfactory explanation – are too long as a matter of law. For example, a subsequent Title III order entered seventeen (17) days after expiration of the first authorization is too long to qualify as an extension. If a subsequent order does not qualify as an extension of the original, then the court must designate the date of the original order as the effective date for sealing purposes. See id. at 1488. “…[n]ot all orders authorizing the surveillance of the same subject, at the same location, concerning the same criminal subject matter can be construed as ‘extension’ of a prior order governing similar surveillace…we hold that an order authorizing surveillance of the same subject, at the same location, regarding the same matter as earlier authorized surveillance, constitutes an ‘extension’ of the earlier authorization for purposes of § 2518(8)(a) if, but only if, the new authorization was obtained as soon as administratively practical or any delay is satisfactorily explained, i.e. is shown to have occurred without fault of bad faith on the part of the Government.” IMMEDIATE SEALING Once the court has determined the effective date for each order and any extensions, it must next determine whether the government has complied with the immediate sealing mandate of Title III. The requirement that the tapes be sealed immediately means that the tape should be sealed as soon as practical after the surveillance ends or as soon as practical after the final extensions order expires. See id. at 1491. Generally sealing should not require more than one or two days at most. See United States v. Coney 407 F.3d 871, 873 (7th Cir. 2005). In the case of United States v. Matthews, 411 F.3d 1210, 1221 (11th Cir. 2005) the court noted: “Three circuits have held that the recordings are sealed ‘immediately upon the expiration of the period of the order’ if they are sealed within one or two days of the expiration. United States v. McGuire, 307 F.3d. 1192, 1204 (9th Cir. 2002); United States v. Wilkinson, 53 F. 3d. 757, 759 (6th Cir. 1995); United States v. Wong, 40 F.3d. 1347, 1375 (2nd Cir. 1994)… we must give the term ‘immediately’ some meaning. That being the case, we agree with the 2nd, 6th, and 9th circuits that ‘within one to two days’ is a reasonable, workable interpretation of the term.” Page 120 of 166
Courts have found that the following delays do not meet Title III’s immediate sealing requirements and thus the government must provide a satisfactory explanation for the delay: (a) ten (10) days (see Coney, 407 F.3d at 871); (b) fourteen (14) days (see Carson, 969 F.2d at 1490; United States v. Pedroni, 958 F.2d 262, 265 (9th Cir. 1992)); (c) five (5) calendar days, including an intervening weekend (see United States v. Pitera, 5 F.3d 624, 627 (2nd Cir. 1993); (d) one (1) or two (2) see United States v. Matthews, 411 F.3d. 1210, 1221 (11th Cir. 2005)). The attorneys supervising this case did have the benefit of Coney and Matthews cases as well as the Ojeda-Rios and Carson cases. However, in the Monitoring instructions given by the Government attorney to the agents there is absolutely no reference to this fundamental requirement. See Attachment to Brief. SATISFACTORY EXPLANATION If the results of surveillance under Title III are not sealed immediately, the government must provide a satisfactory explanation or the tapes are subject to exclusion. For an explanation of a delay in sealing to be “satisfactory” it must explain both why a delay occurred and why it is excusable. See OjedaRios, 495 U.S. at 265. The explanation proffered must have been “objectively reasonable at the time.” Id. at 267. Under Ojeda-Rios, a good-faith, objectively reasonable misunderstanding of what triggers sealing can constitute a satisfactory explanation for a delay. See id. 266-67. However, even an innocent mistake about the law will not excuse delay when unsupported by an objective reading of the extent of case law. See Carson, 969 F.2d at 1492: “[T]herefore, the Government [must] explain not only why delay occurred but also why it is excusable…the excuse offered must be ‘objectively reasonable’ and must be the actual reason for the delay, ‘based on evidence presented and submissions made in the District Court, and ‘not merely a post-hoc rationalization.’” In the instant case, the defendant can find no evidence of actual reasons for delay memorialized and catalogued by the Government at the time the delays were made. A government lawyer may not rely upon the advice of a supervisor, but rather has an affirmative duty to check the status of the law on admissibility of evidence in his case. See id. In addition, to an objectively reasonable mistake of law, “an extraneous unforeseen emergent situation” may sometimes excuse the delay. Carson, 969 F.2d at 1487 (internal citations omitted). Even so, the government “must prove the actual reason for the sealing delay rather than an excuse for some ulterior purpose or administrative bungle.” United States v. Vastola. 989 F.2d 1318, 1323 (3rd Cir. 1993) (emphasis in original). Thus for example, a prosecutor’s routine duties, no matter how hectic, are not a satisfactory explanation for failing to comply with Title III immediate sealing requirement. See United States v. Quintero, 38 F.3d 1317, 1330 (3rd Cir. 1994). INTEGRITY OF PROCESS COMPROMISED The fact that the statute contains its own exclusionary rule […shall be a prerequisite for the use or disclosure of the contents of any wire, oral or electronic communication or evidence derived therefrom…] makes the Government’s evidence derived as a result of the Title III interceptions like the biblical house built upon sand, the illegal foundation of the initial interception tainting all future interceptions, thereby destroying the foundation of the admissibility of any of the interceptions. The delay in sealing of the interception as a result of the May 22, 2007, Order, coupled with the absence of evidence of any sealing as a result of the September 11, 2007, Order from the Tennessee Judge, and the delay in sealing of the interceptions as a result of the October 22, 2007, Order by the Tennessee Judge, reflects a Page 121 of 166
complete failure to comply with the immediacy requirements of 18 U.S.C. § 2518(8)(a), and undermines the integrity of the process that the intercepted material had not been altered or tampered with. Additionally, as each illegal interception is predicated on information obtained from a prior illegal interception, the entire Title III interceptions must be suppressed. Respectfully submitted, /s/ Attorney for Defendant State Bar No. ___________________ CERTIFICATE OF SERVICE
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § § CRIMINAL NO. § 3:00-CR-442-R VS. § § MISSY DOGMA (3) § DEFENDANT MISSY DOGMA’S REQUEST FOR ADDITIONAL PEREMPTORY CHALLENGES (Rule 24 (b) Fed. R. Crim. Pro.) TO THE HONORABLE JERRY BUCHMEYER, UNITED STATES DISTRICT JUDGE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION: COMES NOW, MISSY DOGMA, Defendant, by and through undersigned counsel, and files this her Request for Additional Peremptory Challenges pursuant to Rule 24(b) of the Federal Rules of Criminal Procedures. I. ARGUMENT Since this is a case involving five defendants, the defendant requests additional peremptory challenges to be exercised separately in order to insure due process. Respectfully submitted, /s/ Attorney for Defendant State Bar No. _______________ CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § § v. § DOCKET NO. 3:19-CR-00000-X § JOHN DOE § MOTION FOR DISCLOSURE OF PROSPECTIVE JUROR INFORMATION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW the Defendant, Brian Carpenter, by and through his counsel of record, and respectfully submits this Motion for Disclosure of Prospective Juror Information and respectfully requests that the Court order the Government, its agents, and all investigative agencies involved in this prosecution or otherwise assisting with the prosecution of this Defendant, including those persons or organizations assisting the prosecution with respect to jury selection, to provide to the Defendant all information the Government acquires by whatever means with respect to any prospective juror, unless the information is such that it is truly equally accessible to the defense. This motion is made in order to provide the Defendant with the effective assistance of counsel and to ensure the Defendant a fair trial by an impartial jury, as guaranteed by the Sixth Amendment to the U.S. Constitution. “The purpose of a jury is to guard against the exercise of arbitrary power – to make available the common sense judgment of the community as a hedge against the overzealous or mistaken prosecutor.” Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (citing Duncan v. Louisiana, 391 U.S. 145, 155–56 (1968)). Courts have long stressed the importance of voir dire questioning to obtain a fair and impartial jury. Swain v. Alabama, 380 U.S. 202, 218–20 (1965); United States v. Dellinger, 472 F.2d 340, 366–76 (7th Cir. 1972). The “right to be tried by an impartial jury” includes “the right to an examination designed to ascertain possible prejudices of the venire men.” United States v. Lewin, 467 F.2d 1138 (7th Cir. 1972). Selection of jurors who have the capacity to look beyond accusations is critical, and it is important that one adversary not have a decided advantage in that regard. Only with adequate information can peremptory challenges and challenges for cause be exercised in a meaningful fashion. The importance of these two kinds of jury challenges has long been recognized. Indeed, even though peremptory challenges may not be required by the United States Constitution, the peremptory challenge is one of the most important of the rights secured by the accused and a necessary part of the trial by jury. Jurors are often unaware of their own prejudices and preconceptions, and do not acknowledge them when asked general questions on voir dire such as whether there is any reason they cannot be fair and impartial. See, e.g., United States v. Dennis, 339 U.S. 162, 183 (1950) (Frankfurter, J., dissenting) (“[O]ne cannot have confident knowledge of influences Page 124 of 166
that may play and prey unconsciously on judgment.”); Dellinger, 472 F.2d at 367 (“We do not believe that a prospective juror is so alert to his own prejudices [as to reveal prejudice in response to a general question]. Thus it is essential to explore the backgroundsandattitudesof the jurors to some extent in orderto discover actual bias, or cause.”); Kiernan v. Van Schaik, 347 F.2d 775, 779 (3rd Cir. 1965); United States ex rel. Bloeth v. Denno, 313 F.2d 364, 374 (2d Cir. 1963); Delaney v. United States, 199 F.2d 107, 112–13 (1st Cir. 1952). Moreover, jurors may conceal prejudice out of a desire to avoid embarrassment, or to conform to expected responses, or even for more sinister reasons (such as animosity towards a particular defendant or a particular group). See, e.g., Groppi v. Wisconsin, 400 U.S. 505, 510 (1971). The right to an impartial jury under the Sixth Amendment and the due process right to a fundamentally fair trial entitle any accused individual to a trial uninfluenced by jurors’ preconceived notions and potentially prejudicial affiliations. A voir dire examination process which affords substantial advantage to the Defendant’s accuser will seriously undermine the Sixth Amendment right to jury trial’s purpose of “guard[ing] against the exercise of arbitrary power – to make available the common sense judgment of the community as a hedge against the overzealous or mistaken prosecutor.” Taylor v. Louisiana, 419 U.S. 522, 530 (1975), citing Duncan v. Louisiana, 391 U.S. 145, 155–56 (1968). There can be little doubt, however, that the sources of information available to the Government with its assistance from agencies involved in the prosecution and possibly others, will far exceed what is available to the defense. In some, if not many instances, the Government can access information which is not available to the defense at all. For example, NCIC information is available to law enforcement but not the defense, and there are, without a doubt, other methods and sources available to the Government which are likewise not available to the defense. CONCLUSION For these reasons, the Court should direct the Government to provide the defense with any information acquired with respect to prospective jurors, in order to allow the exercise of the Defendant’s right to a fair trial with a fair and impartial jury, and to provide the Defendant with the means to achieve the intelligent exercise of peremptory challenges and challenges for cause. WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court enter an Order granting this Motion and enter an order requiring the Government to provide the defense with any information acquired with respect to prospective jurors. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700
CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION UNITED STATES OF AMERICA v. JOHN DOE (2)
§ § § § §
NO: 4:14-CR-000000
DEFENDANT JOHN DOE’S REQUEST TO SUBMIT ONE (1) PAGE QUESTIONNAIRE TO THE HONORABLE UNITED STATES DISTRICT JUDGE AMOS L. MAZZANT: COMES NOW JOHN DOE, defendant, by and through undersigned counsel, and files the Request to Submit One (1) Page Juror Questionnaire and respectfully requests the Court to submit the attached questionnaire to prospective jurors, (See Exhibit “A” attached hereto). I. This is a case regarding allegations of Conspiracy to Manufacture and Distribute a Controlled Substance. Attached hereto is a proposed one (1) page juror questionnaire which the defendant is requesting be submitted to the prospective jurors in the instant case. It is respectfully submitted that the questions contained in the attached questionnaire are either biographical in nature or go directly to revealing potential prejudice. The biographical questions are submitted in the form of a questionnaire in order to save the court time and resources. Furthermore, a questionnaire will help insure honest, private responses to pertinent questions in this case. Instead of the Parties having to repeat each biographical question to each juror over and over again, the questionnaire eliminates this problem. Furthermore, by submitting biographical questions to the jurors in the form of a questionnaire, this procedure assures that each juror is asked the same identical questions in the same fashion. Regarding the questions, which are designed to reveal bias and prejudice, the Supreme Court has held that trial Judges have broad discretion over jury selection. Skilling v. United States, 130 S. Ct. 2896, 2917 (2010). In addition, Rule 24(a) of the Fed. R. Crim. Proc. Provides for attorney’s to “ask further questions that the court considers proper; or submit further questions that the court may ask if it considers them proper.” This questionnaire satisfies this rule. The case of United States v. Ible, 630 F2d 389 (5th Cir. 1980) is also instructive: [W]hile federal rules of procedure 24(a) give wide discretion to the trial court, voir dire may have little meaning if it is not conducted at least in part by counsel. The “federal” practice of almost exclusive voir dire examination by the court does not take into account the fact that it is the parties, rather that the court, who have a full grasp of the nuances and the strength and weaknesses of the case. Peremptory challenges are worthless if trial counsel is not afforded an opportunity Page 126 of 166
to gain the necessary information upon which to case such strikes…Experience indicates that a majority of situations questioning by counsel to be more likely to fulfill the need than exclusive examination in general terms by the trial court.” Id. 395 (emphasis added). Counsel respectfully submits that the following criteria be given weight in deciding this important issue: 1. The questionnaire is a less threatening or intimidating way to question the jurors; 2.
The questionnaire is the best way to deal with confidential or sensitive issues;
3.
There is a focus on areas of concern regarding potential challenges for cause;
4.
It can identify pre-trial publicity without tainting the panel;
5.
The defense will work with the prosecution to formulate the ultimate questions; and
6.
It will SHORTEN the voir dire.
For the foregoing reasons, it is respectfully requested that this Court submit the attached Questionnaire in its entirety to prospective jurors in order to save court time and to assure the revelation of potential bias or prejudice. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700
CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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EXHIBIT A
The information you provide in this questionnaire will be confidential and will only be used during this jury selection. FULL NAME:
Where do you live? What jobs have you held in the past?
Marital Status: If married, for how long? If married, how many times? Have you ever served as a juror in a: □ Criminal case □ Civil Case □ Grand Jury □ Never served
Did you return a verdict? □ Yes □ No
DOB:
Highest grade completed in school: If college, please list any degrees received: Where does your spouse work? Do you know any judges or criminal defense or prosecuting attorneys? □ Yes
□ No
AGE:
Juror #:
Circle any of the following in which you have had training or education: Criminal Justice Criminology Law
Law enforcement
Medicine
Pharmaceuticals
Have you or anyone you know ever worked for any law enforcement agency? □ Yes
□ No
If yes, who and at what job?
If yes, whom do you know and how do you know this person?
Were you the foreperson? □ Yes □ No Have you or anyone you know had a good or bad experience involving law enforcement? □ Yes □ No If yes, please explain: Are you acquainted with anyone addicted to prescription drugs? □ Yes □ No □ If yes, please explain:
Have you, a relative or close friend ever been charged with any criminal offense? □ Yes □ No
Have you, a relative or close friend ever been employed by a pharmacy??
If yes, please explain:
If yes, please explain:
Do you feel that availability of prescription drugs are a problem in your community? □ Yes □ No
Which of the following describes you? Check all that apply: □ Analytical □ Opinionated □ Careful □ Family Oriented □ Emotional □ Religious □ Quiet □ Skeptical □ Judgmental □ Visual □ Law & Order □Sensitive □Other:
If yes, please explain:
Have you every volunteered or worked for any organization that treats or counsels persons for addictive behaviors? □ Yes □ No If yes, please explain:
How do you feel about the government using undercover methods including undercover agents, and video to investigate alleged crimes?
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□ Yes
□ No
The citizen accused in this case is originally from the African Country of Ghana. Could this fact cause you to feel that he is at a disadvantage in defending these charges? □ Yes □ No Please explain:
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION UNITED STATES OF AMERICA Plaintiff, -vsJOHN DOE, Defendant. ______________________________
} } } } } } }
CASE NO: 4: 1000 (Judge Means)
JOHN DOE’S MOTION FOR SPECIFIC INQUIRY OF PROSPECTIVE JURORS John Doe, by and through his undersigned counsel, pursuant to Federal Rule of Criminal Procedure 24(a), respectfully requests that this Court permit counsel to conduct the following inquiry of prospective jurors. In support of this motion, counsel would show the following: 1. It is the government’s contention that John Doe distributed hundreds of kilos of cocaine and one thousand of pounds of marijuana in Louisiana and Mississippi. Evidence will be presented that Doe was a contractor who restored homes in Shreveport and raised pit bulls on property adjacent to his home. It is expected that the government will claim that John Doe concealed money and drugs on the property where he raised the dogs and that he used the properties he restored and the dogs he raised to facilitate his unlawful conduct. The government may seek to admit evidence that at the time of John Doe’s arrest the police found two handguns in his residence. (These weapons were lawfully possessed). The government will offer evidence that John Doe deposited $100,000 or more in cash into various bank accounts over a four or five year period. The government will seek to introduce this evidence under a theory of unexplained wealth. The government will also seek to introduce evidence that John Doe raced cars to show payments in cash and unexplained wealth. Finally, the government alleged in the indictment and may introduce evidence at trial that John Doe was referred to by some individuals as “Good.” 2.
Counsel requests permission to ask the following questions of prospective jurors. (1) Does anyone have any experience with pit bulls. (2) Does anyone have an opinion about pit bulls. (3) Does anyone have an opinion about people who own pit bulls. (4) Does anyone have an opinion about people who raise dogs for sale. (5) Does anyone own a gun. (6) Does anyone have any strong opinions about gun ownership. (7) Has anyone ever remodeled a home. (8) Has anyone ever hired someone to do work on a home. (9) Has anyone ever paid cash for a service. (10) Does anyone have an opinion about people who pay cash for a service. (11) Does anyone have an opinion about people who keep their saving at home and not in a bank. (12) Does anyone have a nickname. Page 129 of 166
(13) Does anyone know someone who has a nickname. (14) Does anyone have any opinion about people who have nicknames. (15) Has anyone watched live broadcasts of criminal trials on TV. MEMORANDUM OF LAW Federal Rule of Criminal Procedure 24(a)(1) authorizes the District Court to permit the attorneys for the parties to examine prospective jurors. Alternatively, Federal Rule of Criminal Procedure 24(a)(2) authorizes the Court to permit counsel to submit questions for the Court to pose to prospective jurors. As the Supreme Court recently reaffirmed in Skilling v. United States, ___U.S.___, 130 S.Ct. 2896, 2917 (2010), “No hard-and-fast formula dictates the necessary depth or breath of voir dire. Jury selection, we have repeatedly emphasized, is ‘particularly within the province of the trial judge.’” To the extent that the purpose of voir dire is to determine whether jurors can render a verdict solely upon the basis of the evidence presented, we believe that the questions suggested herein will assist in the process by helping the court to uncover any prejudices a juror might have. Respectfully submitted, /s/ Attorney for Defendant State Bar No. ________________ CERTIFICATE OF CONFERENCE CERTIFICATE OF SERVICE ORDER
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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § § v. § DOCKET NO. 3:19-CR-00000-X § JOHN DOE § DEFENDANT’S MOTION IN LIMINE AND INCORPORATED BRIEF
TO THE HONORABLE UNITED STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION:
The Defendant, Dr. John Doe, by and through his counsel of record, hereby submits this Motion in Limine, respectfully asking the Court to prohibit the Government (or any Government witness) from referring to, eliciting any testimony regarding, or sponsoring any testimony or evidence regarding the following matters: 1. Any Alleged Civil or Regulatory Violations The Government should be precluded from referencing, arguing, offering evidence of, or eliciting testimony about any alleged civil or regulatory violations, namely any alleged violations of rules or regulations promulgated by TRICARE, the Texas Medical Board, or similar regulatory bodies. Any alleged violations of this nature pose a particularly significant risk of prejudice, to the extent that they could easily give way to the improper “alternative standard of guilt” which the Fifth Circuit rejected in United States v. Christo, 614 F.2d 486 (5th Cir. 1980), the Fifth Circuit reversed the defendant’s conviction for misapplication of bank funds, finding that bank funds are not criminally misapplied merely because they are applied in a manner unauthorized or prohibited by the Federal banking statutes. Specifically, the court expressed concern that evidence of civil regulatory violations could create an “alternative standard of guilt.” Id. at 491. As a result, the Fifth Circuit has since reiterated that evidence of civil or regulatory violations can be properly admitted only when tied directly to the issue of intent. See United States v. Schnitzer 145 F.3d 721, 730 (5th Cir. 1998). In Schnitzer, the Fifth Circuit found that admission of evidence of an alleged regulatory violation “created the risk that its exclusion was designed to avoid,” where the Government failed to tie said evidence to an intent to deceive federal banking regulators. Id.). Thus, “the jury was left only with [witness’] testimony that the booking of a profit on the sale . . . constituted a false entry because it purportedly violated [the banking regulation].” Schnitzer at 730. The Court concluded that the Government thus improperly focused the jury’s attention to the prohibitions of the banking regulation rather than the elements of the criminal statute and thus “impermissibly infected the very purpose for which the trial was being conducted.” Id. at 730 (citing Christo, 614 F.2d at 492). In Schnitzer, the Fifth Circuit suggested that the trial court could have minimized the potential impact of the irrelevant evidence with an instruction that the evidence of the Page 131 of 166
regulatory violation could not by itself support a conviction and was relevant, if at all, only as evidence of the defendant’s intent. See Schnitzer at 730–31; see also U.S. v. Brechtel, 997 F.2d 1108 (5th Cir. 1993) (instruction given that “[a] violation of banking regulations in and of itself does not amount to criminal conduct under federal law”). Likewise, courts in this circuit have instructed that the use of a limiting instruction setting out the limited purpose for which the evidence of the civil regulatory violation is being admitted into evidence, given contemporaneously with its admission and again at the close of trial, could effectively reduce the possibility of confusion as to the purpose of the evidence and the Government’s burden of proof, as well as reduce the jury’s focus on said evidence beyond its limited purpose. See United States v. Mix, 2013 WL 2100264, at *2 (E.D. La. 2013). The Defendant requests that the Court take the very same protective measures, by giving the following as a preliminary instruction at the beginning of the trial, prior to any testimony regarding alleged civil regulatory violations, and in the charge of the Court: During this trial, you may hear [or have heard] evidence regarding TRICARE’s civil rules and regulations and opinions regarding ethical standards and standards of care for physicians and non-physician practitioners such as physician’s assistants and nurse practitioners and for the operation of clinics. I caution you that a violation of civil statutes, rules, regulations, ethical standards, or standards of care is not a crime. This is not a civil case. The defendants are not on trial for a civil violation or even medical malpractice. Even if you find that the Defendants violated the applicable civil statutes, rules, and regulations, a defendant cannot be convicted of a crime merely for breaching civil standards, rules, regulations, ethical standards, and standards of care applicable to his or her conduct. However, TRICARE rules and regulations, ethical standards, and standards of care may be relevant in determining whether a defendant acted with criminal intent, that is knowingly and willfully with the intent to defraud TRICARE. That is how you may consider the evidence. In short, the Defendant respectfully requests that the Court order the Government to refrain from introducing evidence of any alleged violation of TRICARE policy, procedure, or rule, without first obtaining permission from the Court as to each intended introduction. Moreover, if and when such evidence is introduced, the Defendants respectfully request that it be accompanied by an appropriate limiting instruction, as set forth supra. a. Allegedly False Statements on Consultation Forms The Government should be precluded from referencing, arguing, offering evidence of, or eliciting testimony about any purportedly false statements contained within the consultation forms allegedly reviewed and signed by Dr. John Doe which were wholly immaterial to TRICARE’s decision-making process when deciding whether or not to pay claims submitted by the pharmacy. Notably, the forms completed by Dr. John Doe were never submitted to TRICARE as part of the general claim submission process. As such, it is clear that any such statements were not material— or indeed, even relevant—to TRICARE’s decision-making. Page 132 of 166
Under these circumstances, any argument or testimony asserting that these were false or fraudulent statements would merely be highlighting an alleged non-compliance with civil/regulatory; yet would pose a substantial risk of misleading the jury into believing that such a violation is sufficient to establish criminal intent. As such, any evidence or argument indicating that Dr. Doe violated the rules and/or regulations concerning the doctor-patient relationship, the TRICARE reimbursement requirements, or other potential regulatory violations therefore pose a significant risk of “bootstrapping” alleged violations of such civil regulations or requirements into a suggestion that the Defendant acted with criminal intent. b. Records Pertaining to Any Individuals Not the Subject of a Substantive Count The Government should be precluded from referencing, arguing, offering evidence of, or eliciting testimony about any beneficiaries other than those named as the bases of substantive counts two through seven. Such records are plainly irrelevant to the allegations of counts two through seven, and will not serve to render more or less probable the fact that the Defendant allegedly entered into an agreement to participate in and act in furtherance of a criminal conspiracy. Accordingly, the introduction of such records, evidence, and/or testimony would be both irrelevant and cumulative. c. Status of Medical License in Texas The Government should be precluded from referencing, arguing, offering evidence of, or eliciting testimony about the fact that Dr. Doe has surrendered, lost, forfeited, or otherwise been divested of his medical license(s) in Texas or any other states. Particularly where any such events were triggered solely as a result of the instant allegations, the jury is likely to be misled or confused into thinking that these events were caused by some other bad acts or conduct, as opposed to merely a chain reaction of the allegations at hand. Thus, allowing any reference to or evidence of a licensure event would improperly prejudice the Defendant, while offering no probative value. 2.
Method of Identifying Patients
The Government should be precluded from referencing, arguing, offering evidence of, or eliciting testimony about any alleged methods of identifying potential patients which were purportedly employed by the Defendant’s alleged unindicted coconspirator. Unless the government can show the Defendant was involved in or had knowledge of the methods by which these alleged unindicted coconspirators went about identifying potential patients, any such allegations fail to render any fact of consequence more or less likely. 3.
The National Provider Ranking or Similar Comparisons The Government should be precluded from referencing, arguing, offering evidence of, or
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eliciting testimony about the “National Provider Ranking” or any other comparison of Dr. Doe’s performance relative to other practitioners. Such information has no bearing on the issues at hand, as it does not tend to make more or less likely the conclusion that Dr. Doe engaged in a conspiracy or committed wire fraud. Rather, this data would serve only to try and paint Dr. Doe in a negative light and would be offered solely for its prejudicial value. 4. Referring to TRICARE Beneficiaries as “Victims” The Government should be precluded from characterizing any TRICARE Beneficiaries as “victims” at any point in this matter, including during opening statements, testimony, and closing arguments. The Indictment makes no allegations that any of the beneficiaries were harmed. Moreover, there is evidence that, in fact, virtually all the beneficiaries were provided with compound medications and vitamins. As such, to refer to TRICARE beneficiaries as “victims” would improperly suggest that said beneficiaries were somehow harmed as a result of the alleged conduct, which would obviously serve to prejudice the Defendants. Likewise, the use of such terminology would offer no probative value at all. 5. Drawing the Legal Conclusions of “Bribes”, “Kickbacks”, or “Fraud” The Government should be precluded from characterizing any alleged payment made to the Defendant by any alleged co-conspirator as a “bribe” or “kickback” and further should be precluded from characterizing any alleged business the Defendant may have had with said parties as “fraud” or a “scam.” By doing so, the Government would be improperly assuming as fact the very issue at hand—whether the Defendant committed the alleged offenses. Indeed, the only way that the conduct at issue could properly be deemed a “fraud” would be as the result of a jury verdict upon the conclusion of the instant trial. Moreover, the terms “bribe” and “kickback” have legal definitions under the Federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b). Thus, to use such terminology during trial would not only be inaccurate, but would also be highly prejudicial and likely to confuse or mislead the jury. Given that these terms have legal definitions and that the ultimate issue in this case is whether the Defendant committed healthcare fraud, by submitting and causing the submission of false claims to TRICARE “for compound medications that were not legitimately prescribed, not needed, not used, and induced through the payment and receipt of unlawful kickbacks and bribes,” the Government should be precluded from characterizing the payments at issue as “bribes” or “kickbacks” and from referring to the corresponding business as a “fraud” or “scam,” so as not to improperly invade the province of the jury. Dkt. No. 1 at 4 (emphasis added); See also, e.g., Evans v. Quintiles Transnational Corp., No. 4:13-cv-00987RBH, 2015 WL 9455580, at *7 (D.S.C. Dec. 23, 2015) (agreeing that “use of the term ‘kickbacks’ ... is highly prejudicial and implies illegality” and excluding the use of the term at trial as “unnecessarily inflammatory.”); United States v. Grusd, No. 3:15-cr-02821 (S.D. Cal. Nov. 6, 2015) (granting in part and denying in part defendant’s motion in limine to preclude use of “bribes” and “kickbacks”).
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6. Any Allegations of Prior Bad Acts, Criminal Offenses, or Other Misconduct with Which the Defendant has Not Been Charged Any evidence of alleged bad acts other than the allegations contained within the Indictment are not admissible to prove character to show actions in conformity with said character. See Fed. R. Evid. 404(b)(1). Similarly, such evidence would fail to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident under Rule 404(b). Id. Accordingly, the Defendant moves in limine to bar any such testimony or evidence (including, but not limited to, any such offenses or misconduct identified in the Government’s Notice of Intent to Offer Evidence Under Federal Rule of Evidence 404(b) and Request for Ruling on Admissibility (Dkt. No. 79) and any evidence or testimony relating to or referencing the same), unless and until the Government first approaches the bench and obtains a ruling outside the presence of the jury on the admissibility thereof. 7. References to Plea Agreements to Suggest the Truthfulness of a Witness’ Testimony The Government should be precluded from referencing, arguing, offering evidence of, or eliciting testimony suggesting that the entry of a plea agreement by any given individual could somehow serve to ensure or corroborate the truthfulness of that individual’s testimony. Such conduct amounts to nothing more than prejudicial witness bolstering. By implying that its plea agreements with Government witnesses ensure the witnesses’ truthfulness in testifying, or putting the prestige of the Government or this Court behind the veracity of the witnesses, the Government would plainly be engaging in improper vouching for the credibility of the witnesses. United States v. Carroll, 26 F.3d 1380, 1387-89 (6th Cir. 1994). In Carroll, the Court held: In the present case, the prosecutor blatantly implied that the [witnesses]’s plea agreements ensured that the witnesses were truthful; the prosecutor did not give the jury any inkling that the government has no independent means of discerning truthfulness. Further, the prosecutor placed the prestige of the government, and even of the court, behind the credibility of the [witnesses], by stating that, if the government or the judge did not believe that the witnesses were being truthful, the witnesses would be in jeopardy. This implied to the jury that the government and the court were satisfied that the witnesses were truthful. This constitutes improper vouching. In United States v. Arroyo-Angulo, 580 F.2d 1337, 1149-50 (2d Cir.) (Friendly, J., concurring), cert. denied, 439 U.S. 913 (1978), Judge Friendly stated that the prosecutor’s statements suggested that plea agreements imply truthfulness on the part of the government witness: Such remarks are prosecutorial overkill. They inevitably give jurors the impression that the prosecutor is carefully monitoring the testimony of the cooperating witness to make sure that the latter is not stretching the facts— something the prosecutor usually is quite unable to do.
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Arroyo-Angulo, 580 F.2d at 1150 (Friendly, J., concurring). Thus, the Government should be precluded from making any argument or suggestion that the existence of a plea agreement somehow ensures the veracity of an individual’s testimony. 8. Summary Witnesses The Government should be precluded from eliciting testimony from any summary witness unless and until the Government first makes a satisfactory showing to the Court outside the presence of the jury that such summary witness testimony is admissible, which in the Fifth Circuit has been allowed only in a limited capacity and only in complex cases. See United States v. Nguyen, 504 F.3d 561, 571–73 (5th Cir. 2007). “[P]lainly, [Federal Rule of Evidence 1006] does not contemplate summarization of live testimony presented in court.” United States v. Fullwood, 342 F.3d 409, 413 (5th Cir. 2003). Thus, “[a]lthough the district court may admit summary witness testimony in limited circumstances, [the Fifth Circuit] has repeatedly warned of its dangers,” further “stress[ing] that the purpose of summary evidence is not simply to allow the Government to repeat its entire case-in-chief shortly before jury deliberations.” Nguyen, 504 F.3d at 572. In other words, “[s]ummary witnesses may not be used as a substitute for, or a supplement to, closing argument.” Id. (citations and quotations omitted) (finding error in admission of testimony by summary witness, even though case was complex, where summary testimony inappropriately made conclusions as to defendant’s state of mind). In addition, if the Government calls a summary witness and attempts to elicit any opinions from that witness, such opinions must be found by this Court to be based solely on the evidence properly before the jury and must meet all of the requirements of Federal Rule of Evidence 701. Moreover, as a fact witness, any summary witness may only testify to events within his or her personal knowledge under Federal Rule of Evidence 602 or give an opinion that is: “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. 9. Summary Exhibits The Government should be precluded from offering, sponsoring, introducing, or otherwise referencing any summary exhibits unless and until the Government first makes a satisfactory showing to the Court outside the presence of the jury that such summary exhibit is admissible. Namely, pursuant to Federal Rule of Evidence 1006, summaries are only allowed when the evidence in question is voluminous and cannot be conveniently examined in court. The Fifth Circuit has held summaries of such evidence to be admissible only when “(1) they are based on competent evidence already before the jury, (2) the primary evidence used to construct the charts is available to the other side for comparison so that the correctness of the summary may be tested, (3) the chart preparer is available for cross- examination, and (4) the jury is properly instructed concerning use of the charts.” United States v. Bishop, 264 F.3d 535, 547 (5th Cir. 2001).
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In addition, “[c]ontents of charts or summaries admitted as evidence under Rule 1006 must fairly represent and be taken from underlying documentary proof which is too voluminous for convenient in-court examination, and they must be accurate and nonprejudicial.” United States v. Bray, 139 F.3d 1104, 1111 (6th Cir. 1998). Because summary witnesses and exhibits may only be used in a limited manner after meeting these requirements, the Government should be required to demonstrate that any such summary evidence is properly admissible before presenting it to the jury. Absent such a requirement, the Defendants would not be able to object until after the Government had already presented their summary exhibit, at which point it would be too late to truly cure the prejudicial effect, in the event that a summary exhibit were found to be improper. 10. Amount of Resources Available to and/or Expended by Either Party The Government should be precluded from referencing, arguing, offering evidence of, or eliciting testimony about the relative size of the law firms representing the parties, the number of lawyers in the courtroom, the legal resources at either party’s disposal, or the time or circumstances under which Defendants consulted or retained legal counsel for this matter. Likewise, the Government should be precluded from referencing, arguing, offering evidence of, or eliciting testimony about the costs or expenses incurred by the Government in connection with this prosecution, as this would be irrelevant and highly prejudicial. 11. Potential Statements made by a Co-Conspirator The Defendant believes the Government intends to offer several statements pursuant to Fed. R. Evid. 801(d)(2)(E). Therefore, the Defendant requests that the Government be prohibited from mentioning or alluding to any such statements until: (1) the Government can establish the required predicate, that is, that a criminal conspiracy even existed; and (2) the Government can establish that the statements were made in furtherance of the conspiracy. Prior to the introduction of such evidence, the Defendant requests a James hearing. The Defendant concedes that a James hearing is not mandatory and that the Court has broad discretion in this area. However, the Defendant firmly believes that he will be prejudiced if the Government is permitted to discuss these types of statements in their opening statement, and the Court later rules the statement is inadmissible. Therefore, if the Court is not inclined to conduct a James hearing pretrial, the Defendants request, at a minimum, that the Government be precluded from discussing any such statement in their opening statement to the jury.
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PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully requests that the instant Motion in Limine be in all things GRANTED and that the Court issue an Order directing the Government not to reference, argue, offer evidence of, or elicit testimony about any of the matters identified herein.
Respectfully submitted, /s/ Attorney for Defendant State Bar No.____________________ CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA V. JOHN DOE (3), ET. AL.
§ § § § § §
CRIMINAL NO. 01:08XXXXXXXXXXX
DEFENDANT’S MOTION TO IMMEDIATELY DISCLOSE ANY AND ALL CONTACT BETWEEN GOVERNMENT AGENTS OR PROSECUTORS AND POTENTIAL JAILHOUSE INFORMANTS INCARCERATED WITH DEFENDANT TO THE HONORABLE UNITED STATES DISTRICT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION: Defendant by and through counsel, hereby moves this Court to order the government to immediately disclose any and all contact between government agents or prosecutors and potential informants incarcerated with defendant. In support, defendant relies upon Rules 12(b)(4) and 16(a)(I)(A) of the Federal Rules of Criminal Procedure, the Fifth, Sixth, and Eighth Amendments, and submits the following: Defendant, since his arrest, has been incarcerated at the Correctional Facility with other pre-trial detainees, and convicted persons, some of whom are facing lengthy state or federal sentences. Jailhouse informants have been used frequently by prosecuting authorities and have surfaced seeking “deals” in return for testimony in a disturbing number of federal criminal cases. The possibility of manufactured conversations exists. As a safeguard and to permit the require pre-trial resolutions of Defendant’s objections to any testimony of this sort, he requests immediate disclosure of government (state or federal) sponsored or monitored contacts with the defendant regarding the allegations in the indictment and any such conversations the prosecution is aware of. Respectfully submitted, /s/Michael P. Heiskell Attorney for Defendant State Bar No.__________________ CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA V. JOHN DOE (3), ET. AL.
§ § §
§ § §
CRIMINAL NO.
01:08-CR-116HSO-RHW
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO IMMEDIATELY DISLCOSE ANY AND ALL CONTACT BETWEEN GOVERNMENT AGENTS OR PROSECUTORS AND POTENTIAL JAILHOUSE INFORMATION INCARCERTED WITH DEFENDANT TO THE HONORABLE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION: Government tolerated, sponsored or planted informants are both highly unreliable and frequently used, particularly in serious cases. For example, the government planted an informant in the same cell as the defendant in United States v. Henry¸ 447 U.S. 264, 266-267 (1980). He was instructed not to interrogate the defendant about his involvement in the crime but to be alert to any statements. Id. The informant ultimately testified at the defendant’s trial concerning incriminating statements made by the defendant. Id. Relying on Massiah v. United States¸377 U.S. 201 (1964), the Supreme Court stated “the question here is whether under the facts of this case a Government agent ‘deliberately elicited’ incriminating statements from Henry within the meaning of Massiah.’” Id., at 270. It then upheld the decision of the Fourth Circuit Court of Appeals that by “intentionally creating a situation likely to induce Henry to make incriminating statement without the assistance of counsel, the Governement violated Henry’s Sixth Amendment right to counsel.” Id., at 274. Later in Maine v. Moulton, 474 U.S. 159 (1985), the Court expanded the Henry holding 27 by finding “knowing exploitation by the state of an opportunity to circumvent the defendant’s right to counsel is equivalent to intentional creation of such an opportunity.” The United State Supreme Court has noted that “[t]he use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility.’ On Lee v. United States, 343 U.S. 747, 757 (1952); see also United States v. Swiderski, 539 F.2d 854 (2d Cir. 1976) (informer paid $10,000.00 for his services, worked on a contingent fee basis); United States v. Sarvis, 523 F.2d 1177, 1180 (D.C. Cir. 1974); United States v. Wasko, 473 F.2d 1282 (7th Cir. 1973); United States v. Leonard, 494 F.2d 955, 961 (D.C. Cir. 1974); United States v. Garcia, 528 F.2d 580 (5th Cir.), cert. denied sub nom. Sandoval v. United States, 426 U.S. 952 (1976). For these reasons the United States Supreme Court has held that snitch or accomplice testimony “ought not to be passed upon…under the same rules governing other apparently credible witnesses…” Crawford v. United States, 212 U.S. 183 204 (1908). Indeed, the Nevada Supreme Court has noted “that a The Supreme Court state in dictum in Kuhlman v. Wilson, 477 U.S. 436 (1986) that the defendant’s right to counsel was not violated by the police placing in the defendant’s cell an informant who merely listened and reported what the defendant said. 27
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jail-house is now available in a fairly large number of homicide cases.” D’Agostino v. State, 823 P.2d 283, 285 (Nev. 1992). The Court went on to hold that special precautions must be taken to avoid presenting unreliable evidence to the jury: A legally unsophisticated jury has little knowledge as to the types of pressures and inducements that jail inmates are under to “cooperate” with the state and to say anything that is “helpful” to the state’s case. It is up to the trial judge to see that there are sufficient assurances of reliability prior to admitting this kind of amorphous testimony to keep this kind of unreliable evidence out of the hands of the jury… Id. at 284; see also Cal. Penal Code §1127a (trial courts must instruct jurors that “testimony of an incustody informant that should be viewed with caution and close scrutiny”); People v. (Thomas) Thompson, 45 Cal.3d 86 (1988) (on proportionality review, court finds prosecution’s need to rely on “snitch” testimony “disconcerting”); Tibbs v. State, 337 So.2d 788, 790 (Fla. 1976) (reversing a murder conviction/death sentence as being against the weight of the evidence. The testimony of a cell mate snitch was dismissed as “the product of purely selfish considerations.”); Barnes v. State, 469 So.2d 126, 132 (Miss. 1984) (testimony of jailhouse snitches must “be viewed with caution and suspicion even in the absence of any proof of a leniency/immunity agreement.”). The Louisiana Supreme Court views the word of an informant as being less credible than that of a law-abiding citizen when it comes to probable cause to search. A distinction must be drawn “between an ‘informant’ who is a member of the criminal community and an informant who is the witness or victim of a crime.” State v. Ross, 561 So.1004, 1009 (La. App. 4th Cir. 1990), citing State v. Morris, 444 So.2d 1200 (La. 1984). The testiomy of a snitch may simply be too insubstantial to support a conviction. See Jackson v. Virginia, 443 U.S. 307 (1979)); White, Regulating Prison Informer Under the Due Process Clause¸ 1991 S.Ct. Rev. 103, 104-105. WHEREFORE, Defendant requests that this Court require the government to immediately disclose any and all contact between government agents or prosecutors and informants incarcerated with Defendant so that he can seek appropriate relief. Respectfully submitted, /s/ Attorney for Defendant State Bar No. ______________
CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA V. JOHN DOE (3), ET. AL.
§ § § § § §
CRIMINAL NO. 01:08XXXXXXXXXX
DEFENDANT’S MOTION TO PRECLUDE IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR CONVICTIONS TO THE HONORABLE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION: Defendant, by and through, undersigned counsel, respectfully moves this Honorable Court for an Order precluding the Government from impeaching him should he testify at trial. In support of this motion, Defendant submits the following: Federal Rule of Evidence 609 provides, inter alia, that “evidence that an accused has been convicted of …a crime [punishable by death or imprisonment in excess of one year] shall be admitted if the court determines that the probative value of admitting this evidence outweighs the prejudicial effect of the accused.” Fed. Rule Evid. 609(a)(I). The Rule also provides that “evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.” Fed. Rule Evid. 609 (a)(2). Under Rule 609(a)(I) “the prosecution must show that the probative value of a prior conviction outweighs the prejudice to the defendant.” United States v. Lipscomb, 702 F.2d 1049 (D.C. Cir. 1983). In this case, the Government cannot make the requisite showing with respect to Defendant’s prior convictions. Respectfully submitted, /s/ Attorney for Defendant State Bar No. _________________
CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION UNITED STATES OF AMERICA § § V. § CRIMINAL NO. § 01:08XXXXXXXXXXX § JOHN DOE (3), ET. AL.
§
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO PRECLUDE IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR CONVICTIONS TO THE HONORABLE UNITED STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF MISSISSIPPI, SOUTHERN DIVISION: In United States v. Fearwell, 595 F.2d 771 (D.C. Cir. 1978), the D.C. Circuit admonished that, “Rule 609(a)(2) is to be construed narrowly; it is not carte blanche for admission on an undifferentiated basis of all previous convictions for purposes of impeachment; rather, precisely, because it involves no discretion on the part of the trial court in the sense that all crimes meeting its stipulation of dishonesty or false statement must be used for impeachment purposes, Rule 609(a)(2) must be confined…to a ‘narrow subset of crimes’—those that bear directly upon the accused’s propensity to testify truthfully.” Id., at 777, citing United States v. Smith, 551 F.2d 348 (D.C. Cir. 1976) (emphasis in original). In Defendant’s case, his conviction has no bearing upon his propensity to testify truthfully. In Smith, the D.C. Circuit explained that “[b]y the phrase ‘dishonesty and false statement’ the [Congressional Conference Committee] means no crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.” 551 F.2d at 362, citing H.R. Conf. Rep. No. 9301597, 93d Congo Sess. 9, reprinted in [1974] U.S. Code Congo & Admin. News, pp. 7098, 7103. Further the Smith court noted that even an offense that does not per se bear on credibility may be used to impeach if “the prosecutor has first demonstrated to the court the underlying facts which warrant the dishonesty or false statement description.” Id., at 364. It is the Government’s burden to “produc[e] fact[s] which demonstrat[e] that the particular conviction involved fraud or deceit.” United States v. Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982), citing United States v. Smith, 551 F.2d 364. In Defendant’s case the Government has produced no information suggesting that the offenses for which he has been convicted involved fraud or deceit. The D.C. Cirucit has held that the Government bears “the burden of proof in establishing the admissibility of [a] prior conviction[].” United States v. Crawford, 613 F.2d 1045, 1053 (D.C. Cir. 1979) (citations omitted). This Court should not allow the Government to impeach Defendant with his prior conviction absent an “inquiry into the nature and circumstances” of the conviction. Id., at 1053. WHEREFORE, for all the foregoing and any others which may appear to this Court in a full hearing on this matter, Defendant respectfully requests that the government not me be permitted to impeach him under Federal Rule of Evidence 609 with his prior conviction.
Respectfully submitted, /s/Michael P. Heiskell Attorney for Defendant State Bar No. _____________________ CERTIFICATE OF SERVICE
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA § § V. § CRIMINAL NO. § 1:23-CR-456-R § JOHN DOE § DEFENDANT’S MOTION UNDER RULE 201 OF THE FEDERAL RULES OF EVIDENCE FOR ADVANCE NOTICE OF ANY MATTER WHICH EITHER THE COURT OR THE GOVERNMENT MAY CONTEND AS APPROPRIATE FOR JUDICIAL NOTICE AND BRIEF IN SUPPORT THEREOF TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, the defendant, John Doe, by and through counsel of record and moves that the court disclose at least thirty (30) days prior to trial or as far in advance as possible, any matter it may contend is appropriate for judicial notice, and in support thereof would show as follows: 1.
The Government may intend to ask the Court to take judicial notice of adjudicative facts.
2.
The Court itself may intend to take judicial notice of a fact.
3.
Under Rule 201(e), a party is given the opportunity to be heard as to the propriety of taking judicial notice.
4.
The Notes of Advisory Committee on Proposed Rules following Rule 201 provide in part as follows: Note to Subdivision (e). Basic consideration of procedural fairness demand an opportunity to be heard on the propriety of taking judicial notice and the tenor of the matter noticed. The rule requires the granting of that opportunity upon request. No formal scheme of giving notice is provided. An adversely affected party may learn in advance that judicial notice is in contemplation, either by virtue of being served with a copy of a request by another party under subdivision (d) that judicial notice be taken, or through an advance indication by the judge. Or he may have no advance notice at all. The likelihood of that latter is enhanced by the frequent failure to recognize judicial notice as such. And in the absence of advance notice, a request made after the fact could not in fairness be considered untimely.
5.
Since a party is entitled to the opportunity to contest the propriety of taking judicial notice, he also must be given the opportunity to present to the Court information pertinent to the
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decision, which would be done at a hearing called for that purpose. See Oneida Indian Nation of New York v. State of New York, 691 F.2d 1070, 1086 (2d Cir. 1982). 6.
In view of the foregoing, and in the interest of judicial economy and fair play, it is appropriate that such questions be addressed prior to trial, if possible, and certainly prior to the jury being given a judicially notice fact.
WHEREFORE, Defendant moves that the court: A)
Disclose to the defense any belief it now has that any fact is appropriate for judicial notice;
B)
Instruct counsel for the Government to disclose any similar belief on its part;
C) Give advance notice to the defense and require the Government to do the same should the question of judicial notice arise during trial; and D) Conduct a hearing, before the jury is given a judicially noticed fact, at which the defense shall have the opportunity to contest the propriety thereof.
Respectfully submitted, /s/ Michael P. Heiskell Michael P. Heiskell Petitioner Texas State Bar No. 09383700 JOHNSON, VAUGHN, & HEISKELL 5601 Bridge Street, Suite 220 Fort Worth, Texas 76112 (817) 457-2999 (817) 496-1102 facsimile
CERTIFICATE OF SERVICE CERTIFICATE OF CONFERENCE
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION UNITED STATES OF AMERICA v. JOHN DOE (2)
§ § § § §
NO: 4:14-CR-000158-ALM-CAN
DEFENSE MOTION AND BRIEF FOR JUDGMENT OF ACQUITTAL RULE 29 (a) AND (c), FED. R. CRIM. PROC. LEGAL PROVISIONS INVOLVED [T]he court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. Rule 29(a), Federal Rules of Criminal Procedure (emphasis added) [T]he standard of proof beyond a reasonable doubt… “plays a vital role in the American scheme of criminal procedure,” because it operates to give “concrete substance” to the presumption of innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding. At the same time, by impressing upon the factfinder the need to reach a subjective state of near certitude as to the guilt of the accused, the standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself…. The Winship doctrine requires more than simply a trial ritual. A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts of evidence…. Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt…. [W]hen such a conviction occurs…., it cannot constitutionally stand. After Winship, the critical inquiry on review of the sufficiency of evidence to support a criminal conviction must be not simply whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315-19 (1979) (quoting In re Winship, 397 U.S. 358 (1970))
INTRODUCTION Nearly 37 years ago, in its seminal decision in Jackson v. Virginia, 443 U.S. 307, 317-18 (1979), the Supreme Court recognized that “a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt Page 146 of 166
beyond a reasonable doubt…. [W]hen such a conviction occurs…., it cannot constitutionally stand.” Not surprisingly, Jackson’s constitutional imperative is embodied in Federal Rule of Criminal Procedure 29(a) itself, which provides that a district court “must enter a judgment of acquittal on any offense for which the evidence is insufficient to sustain a conviction.” The evidence adduced at trial in this case was woefully insufficient on the key element of Mr. Doe’s intent to willfully join in the conspiracy alleged in this single count indictment in order to prove his guilt beyond a reasonable doubt. The record reflects (1) a glaring absence of evidence that Mr. Doe possessed the requisite mental state to commit this offense, and (2) the government’s theory of Mr. Doe’s criminality being dependent on conjecture and speculation. Why then did the jury convict John Doe on Count One? As the Court knows, there are many reasons why a jury might improperly render a “guilty” verdict in the face of patently insufficient evidence. This risk of an invalid conviction merely increases where, as here, the defendant had previous administrative sanctions for somewhat similar conduct in evidence against him, and surrendered his pharmacist license when confronted by government agents. Ultimately, however, the Court’s task in adjudicating Mr. Doe’s Rule 29 motion is not to ascertain why the jury rendered a verdict for which the evidence was constitutionally insufficient. Instead, the Court’s sole task is to undertake an independent review of the trial record and to determine, as a matter of law, whether it was constitutionally sufficient to prove Mr. Doe’s guilt beyond a reasonable doubt. See, e.g., United States v. Baker, et al., 544 F. Supp. 2d 522, 529-32 (E.D. La. 2008) (Duval, J.) (vacating jury’s verdict and granting defendant Walter Tardy’s motion for judgment of acquittal), 28See also United States v. Harris, 666, F.3d 905, 907 (5th Cir. 2012) (holding that an appellate court reviews de novo a district court’s decision on a defendant’s Rule 29 motion). As demonstrated below, the evidence adduced at trial was constitutionally insufficient to prove John Doe’s guilt on Count One beyond a reasonable doubt. Indeed, the defense respectfully submits that, when the trial record is subjected to a careful review, it is clear that the Government does not have a colorable argument in support of the evidentiary sufficiency of its case as it related to the requisite mental state that must be proven beyond a reasonable doubt. This memorandum of law proceeds as follows: PART ONE summarizes the essential elements of the offense as articulated in the Court’s final instructions to the jury. PART TWO discusses the standard of review applicable to a defendant’s Rule 29 motion. PART THREE addresses the evidence at trial with respect the culpable mental state. PART FOUR then compares the record evidence in this case to federal appellate decisions adjudicating a defendant’s Rule 29 motion. When this comparative analysis is undertaken, entry of a judgment of acquittal is the only outcome consistent with the record and governing law. In Baker, the government initially appealed the Court’s post-verdict judgment of acquittal but then voluntarily dismissed its appeal a few days before its opening brief was to the Fifth Circuit. 28
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PART ONE: THE OFFENSE ELEMENTS Because the Court is familiar with its final charge to the jury, the defense will not engage in an extended discussion of the essential elements of the offense. Nevertheless, a brief review of those elements – each of which the Government bore the burden of proving with evidence beyond a reasonable doubt – provides a useful starting point for the balance of this memorandum. The Court charged the jury that, in order to convict Mr. Doe on Count One, it was required to find that the Government had proven three essential elements beyond a reasonable doubt: First: That two or more persons, directly or indirectly, reached an agreement to distribute or dispense, or to possess with the intent to distribute or dispense, specifically Hydrocodone, outside the usual course of professional practice or not for a legitimate medical purpose; Second: That the defendant knew of the unlawful purpose of the agreement; and Third: That the defendant joined in the agreement willfully, that is, with the intent to further its unlawful purpose. It is noteworthy that each of the required elements contain the required culpable mental states to act in a conspiracy to violate the law. The First element refers to the agreement to possess with intent…” The Second element contains the culpable state of knowledge of “the unlawful purpose of the agreement.” The Third element addresses the mental state of acting “unlawfully”… with the intent to further its unlawful purpose.” (emphasis added). The Court’s instructions further included the definition of “Knowingly” – To Act, as well as “Willfully” – To Act, to assist the trier of fact. These instructions encapsulates the requirement that the government adduce sufficient, substantial evidence that Mr. Doe purposely, with a specific intent to violate the law, entered into an agreement with two individuals to unlawfully dispense and distribute hydrocodone. The government in its opening statements, final arguments, and oral arguments to rebut the Rule 29 motions, repeatedly assert that Mr. Doe’s “confessions,” coupled with his relinquishment of his pharmaceutical licenses is overwhelming evidence of guilt. The government further asserts that the testimony of co-defendant, Remossive Lewis, is additional compelling evidence on the issue of the defendant’s culpable mental state. As will be addressed more thoroughly in PART THREE of this memorandum, the reliance on such evidence is misguided and misplaced. The Government’s evidence included and is riddled with inferences. Mr. Doe’s written statement to Investigator Jones of the Texas State Board of Pharmacy reflected Mr. Doe’s lack of knowledge of the unlawful agreement. Special Agent Dunn’s testimony revealed two misrepresentations by Mr. Doe regarding his presence, or lack thereof, at the pharmacy during critical operating hours. Dunn also testified that Mr. Doe was Page 148 of 166
aware that his co-defendant “Dr. Sammie Lewis” was not licensed in Texas and that neither Sammie Lewis’ nor Remossive Lewis’ required licenses were displayed in the pharmacy. When asked by Dunn why he turned over the pharmacy to two unlicensed individuals, Mr. Doe replied that he was having problems getting the pharmacy off the ground and that he needed to work at Parkland Hospital. However, these statements and admissions fall far short of confessing to participation in the charged conspiracy. Mr. Doe’s statements are confessions to administrative violations which prompted him to surrender his license for such administrative violations. Remossive Lewis testified that there was a written agreement between “Dr. Lewis” and Mr. Doe. However, no such agreement was ever produced by the government. She further testified that Mr. Doe would coach Lewis and others on the mixture of certain drugs. She was not present when Lewis and Mr. Doe first met and was unaware of what conversations took place between them at the time. She admitted that she and Lewis received the monetary proceeds from the pharmacy. Indeed, she was the lone signatory on the Capital One bank account (the Accent Pharmacy bank account) and that Lewis directed her as to who and what to pay from said account. She has also agreed to forfeit the luxury autos purchased with the proceeds, and cash seized from the Capital One account. There was no evidence adduced from her that Mr. Doe received any proceeds from this venture. Indeed, the Government failed to directly connect Mr. Doe with any proceeds or financial gain from the operation of the pharmacies. The Government was required to prove the requisite mental states with evidence, not through conjecture, speculation, or piling inference upon inference or by working backwards from the assumption that Mr. Doe is guilty. See, e.g., Evans–Smith v. Taylor, 19 F.3d 899, 910 (4th Cir. 1994) (“To start with the assumption that the crime was committed and then to show that each piece of circumstantial evidence can be explained in a consistent manner is fundamentally different from examining each piece of evidence and finally concluding beyond a reasonable doubt the defendant was guilty.”) The Government failed to satisfy its burden and Mr. Doe is thus constitutionally entitled to a judgment of acquittal. PART TWO: THE STANDARD OF REVIEW The Due Process Clause requires the government to present evidence sufficient to prove each element of a criminal offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316 (1979); U.S. Const. Amend. V; In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”). “The Standard of proof beyond a reasonable doubt plays a vital role in the American scheme of criminal procedure, because it operates to give ‘concrete substance’ to the presumption of innocence to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding… [T]he standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself.” Jackson, 443 U.S. at 315, quoting Winship, 397 U.S. at 363 and 372 (Harlan, J., concurring). The “virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions…reflect[s] a profound judgment about the way in which law should be enforced and justice administered.” Winship, 397 U.S. at 361-362, quoting Duncan v. Louisiana, 391 U.S. 145, 155 (1968); see also Winship, id. at 372 (Harlan, J., concurring) (‘I view the requirement of proof beyond a reasonable doubt in a criminal case as Page 149 of 166
bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”). In Jackson, the Supreme Court held that “[a]fter Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Id. at 318-319. The sufficiency standard thus requires the trier of fact to apply the “fundamental substantive constitutional standard” rationally to the facts in evidence.” Id. Further, “a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt.” Id. However, “[u]nder Winship, which established proof beyond a reasonable doubt as an essential to due process,” when such a conviction occurs…, it cannot constitutionally stand.” Id. at 317-318. And “Winship presupposes as an essential of the due process guaranteed by the Fourteenth [and Fifth] Amendment[s] that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof – defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Id. Criminal convictions are supported by sufficient evidence “if a reasonable trier of fact could conclude that the elements of the offense were established beyond a reasonable doubt, viewing the evidence in the light most favorable to the jury’s verdict and drawing all reasonable inferences from the evidence to support the verdict.” United States v. Mmahat, 106 F.3d 89, 97 (5th Cir. 1997), cert. denied, 522 U.S. 977 (1997); United States v. Lewis, 476 F.3d 369, 377 (5th Cir. 2007); United States v. Fountain, 277 F.3d 714, 717 (5th Cir. 2001); United States v. Cuellar, 478 F.3d 282, 287 (5th Cir. 2007); United States v. Harris, 477 F.3d 241, 244 (5th Cir. 2007). On a defendant’s motion for a judgment of acquittal, the question for the court is whether the evidence adduced at trial, when viewed in the light most favorable to the government, was “sufficient to permit a reasonable jury to conclude beyond a reasonable doubt that” the defendant committed the offense charged in the indictment, Regalado Cuellar v. United States, 553 U.S. 550, 568 & n.8 (2008) (reversing conviction for money laundering because, “[a]lthough … the [g]overnment introduced some evidence regarding the effect of transporting illegally obtained money to Mexico, the [g]overnment has not pointed to any evidence in the record from which it could be inferred beyond a reasonable doubt that petitioner knew that taking the funds to Mexico would have had one of the relevant effects” (italics added)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“[T]he inquiry involved in ruling on a motion for summary judgment or for directed verdict necessarily implicated the substantive evidentiary standard of proof that would apply at the trial on the merits…. [Thus, on] a motion for acquittal in a criminal case, where the beyond-a-reasonable-doubt standard applies[,] … the trial judge asks whether a reasonable jury could find guilt beyond a reasonable doubt.”). In reviewing the trial record for evidentiary sufficiency, “[a]ll evidence is considered, not just that supporting the verdict ….” United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001); see United States v. Richards, 204 F.3d 177, 206 (5th Cir. 2000) (explaining that the court must “consider ‘the countervailing evidence as well as the evidence that supports the verdict” (quoting United States v. Brown, 186 F.3d 661, 664 (5th Cir. 1999)). Thus, if exculpatory evidence is adduced during the prosecution’s case-in-chief, that evidence must be considered, even though it Page 150 of 166
militates against guilt. See Evans-Smith, 19 F.3d at 909 n.29 (“Favoring the prosecution with all inferences does not mean that [the court] must ignore evidence that is in the record, but which [the prosecution] ignore[s].”). In addition, where, as here, the defendant exercised his right to present a defense, the reviewing court’s sufficiency analysis must take into account the evidence adduced during the defendant’s case-in-chief as well. 29See United States v. White, 611, F.2d 531, 536 (5th Cir. 1980) (holding that, “[i]f a defendant renews his motion for judgment of acquittal at the end of all evidence,” the court is required “to examine all the evidence rather than to restrict its examination to the evidence presented in the [g]overnment’s case-in-chief”) This includes uncontradicted evidence of the defendant’s reputation for good character. See United States v. Toro, 383 F. Supp. 397, 400 (D.P.R. 1974) (considering, inter alia, a defense witness’s uncontradicted testimony that the defendant “was generally of good character” and then granting the defendant’s Rule 29 motion). The Rule 29 standard of review “does not require complete judicial abdication to the determination of the trier of fact.” United States v. Martinez, 555 F.2d 1269, 1271 (5th Cir. 1977) (holding that a verdict must be reversed if not “supported by ‘substantial evidence”’); see also Mortensen v. United States, 322 U.S. 369, 374 (1944) (‘[W]e have never hesitated to examine a record to determine whether there was any competent and substantial evidence fairly tending to support the verdict.”); United States v. Moreland, 665 F.3d 137, 149 n.6 (5th Cir. 2011) (“We remain highly deferential to jury verdicts, but are obligated, as judges, to reverse a conviction where, having viewed all evidence in the light most favorable to the prosecution, we must conclude that the record cannot support a conclusion that the prosecution established guilt beyond a reasonable doubt.”). Although the reviewing court is required to draw in the government’s favor all inferences that are reasonably supported by the record evidence, a reviewing court “cannot ‘credit [the prosecution with] inferences within the realm of possibility when those inferences are unreasonable.” Moreland, 665 F.3d at 149 (reversing defendant’s conviction for possession of child pornography). Moreover, if the only reasonable inference to be drawn from a particular constellation of evidence is one that favors the defendant, the court must consider that exculpatory inference. See Evans-Smith, 19 F.3d at 909 n.29. With respect to the drawing of inferences, it is also important to keep in mind that there is a constitutionally significant distinction between an “evidentiary or “basic’ fact[],” on the one hand, and “an ‘ultimate’ or ‘element’ fact,” on the other. Ulster County Court v. Allen, 442 U.S. 140, 146 (1979). Where the prosecution asks the jury to infer a fact that is also an element of the Consistent with the 1994 amendments to Rule 29, there are actually two pending Rule 29 motions before the court: the initial motion that the defense made immediately after the close of the Government’s case-in-chief, and the renewed motion made after the close of all the evidence. Under the amended Rule 29(b), the court must decide the former motion solely on the basis of the evidence adduced during the Government’s case-in-chief. The latter motion however, must be decided on the basis of the entire trial record. Because no incriminating evidence was adduced during the defense’s case-in-chief – and because the Government did not put on a rebuttal case – this memorandum of law assumes that the Court will resolve Mr. Doe’s Rule 29 motion on the basis of all evidence adduced at trial. 29
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offense (e.g., that the defendant possessed the requisite mental state), it is not enough that the record evidence reasonably supports the prosecution’s desired inference. Instead, the prosecution’s burden is to adduce evidence sufficient to prove that inference “beyond a reasonable doubt.” Id.; see also e.g., Regalado Cuellar, 553 U.S. at 567 n.8 (reversing conviction because the prosecution failed to adduce evidence “from which it could be inferred beyond a reasonable doubt” that the defendant possessed the requisite mental state for money laundering). Thus, in United States v. Alvarez, 451 F.3d 320 (5th Cir. 2006) the Fifth Circuit reversed a conviction where the prosecution “attempt[ed] to cobble together inferences from the testimony presented in support of the verdict against [the defendant].” Id. at 337. The Fifth Circuit explained that, even though “a rational jury might make the chain of [evidentiary] inferences” proffered by the prosecution, that inferential chain was too weak to support a rational finding “beyond a reasonable doubt that the elements of the crime [were] proven.” Id. (italics in original); see also Piaskowski v. Casperson, 126 F. Supp. 2d 1149, 1159-60 (E.D. Wis. 2001) (“The ultimate finding of guilt in this case required the jury to pile speculation on top of the inferences drawn from more inferences. Each step along the way required the jury to eliminate one or more alternatives, thus multiplying the risk of error. Such verdict is not rational.”) A reviewing court may not affirm a conviction that “rest[s] on mere suspicion, speculation, or conjecture, or on an overly attenuated piling of inference on inference.” Alvarez, 451 F.3d at 333-34 (reversing conviction where the government’s proffered evidence of an essential element of the offense was “both circular and self-serving”); see also Unites States v. Harris, 420 F.3d 467, 474 (5th Cir. 2005) (“Speculation may resolve the timing of Harris’s intent and the actions that night, but the speculation on the basis if evidence does not a reasonable inference make.”); Martinez, 555 F.2d at 1271 (holding that, where the jury’s verdict “could be reached only as a result of speculations or assumptions about matters not in evidence,” then the jury’s verdict must be reversed). Indeed, “if the evidence at trial raises only a suspicion of guilt, even a strong one, then that evidence is insufficient.” Guidry v. Dretke, 397 F.3d 306, 331 (5th Cir. 2005) (internal quotation marks omitted). “Even under [a] deferential standard of review, a conviction may not be affirmed … based on evidence that merely creates the inference that the defendant might be guilty.” United States v. Elashyi, et al., 554 F. 3d. 480, 492 (5th Cir. 2008) (italics added); see also United States v. Hernandez, 301 F.3d 886, 893 (5th Cir. 2002) (“[T]here is a critical line between suspicion of guilt and guilt beyond a reasonable doubt…. Even looking at the government’s case in the most favorable light possible, the government has not transcended the realm of speculation to the realm of certainty beyond a reasonable doubt.”); Piaskowski v. Bett, 256 F.3d 687, 692-93 (7th Cir. 2001) (“As strong suspicion that someone is involved in criminal activity is no substitute for proof of guilt beyond a reasonable doubt…. Although a jury may infer facts from other facts that are established by inference, each link in the chain of inferences must be sufficiently strong to avoid a lapse into speculation.”). Thus, in Evans-Smith, the Fourth Circuit, in reversing the defendant’s murder conviction, held: “To start with the assumption that the crime was committed and then to show that each piece of circumstantial evidence can be explained in a consistent manner is fundamentally different from explaining each piece of evidence and finally concluding beyond a reasonable doubt that the defendant was guilty. The prosecution has attempted to accomplish only the first alternative, not the second. As the Supreme Court has long taught, “it is the duty of the Government to establish … guilt beyond a reasonable doubt.” Page 152 of 166
19 F.3d at 910 (quoting In re Winship, 397 U.S. 358, 362 (1970)). PART THREE: THE EVIDENCE ADDUCED AT TRIAL For purposes of this matter, the Court’s focus is exclusively on the evidence in support of the indictment. Ultimately, the trial record is most notable for the absence of evidence that can support a rational finding of guilt beyond a reasonable doubt. By the defense’s tally, there were three witnesses called by the Government that provided evidence related to Mr. Doe’s alleged culpable mental state. This memorandum will address these witnesses testimony in the order received by the Court. I. WAYNE JONES Investigator, Wayne Jones, of the Texas State Board of Pharmacy (“TSPB”) was a Government witness who initially outlined his over 40 years of total law enforcement experience with TSPB, and two municipalities. His testimony initially focused on making undercover purchases from Accent Pharmacy. During one of his undercover trips to the pharmacy, he encountered “Dr. Sammie Lewis” who engaged him in conversation regarding his professional status as a medical doctor. This conversation lead to Lewis offering to evaluate and treat Jones’ relative. Investigator Jones was also present during the execution of the search warrant at the pharmacy and conducted an interview of John Doe. He testified that he documented this interview in his written report and that he also took a handwritten statement from Mr. Doe (Government’s Exhibit No. 11). Jones testified that during his interview, Mr. Doe was surprised by the activities at the pharmacy and would only say that he had no knowledge of the activity at the pharmacy. The handwritten statement of Mr. Doe declared that he was unaware of Lewis’ operation “to this extent” and that he “trusted” Lewis and “the co-workers to run the pharmacy.” This evidence is exculpatory in nature and reflects Mr. Doe’s lack of knowledge and willful agreement to further the conspiracy’s unlawful purpose. The Government’s take on the evidence is totally different. It parse’s the phrase “to this extent” in order to seek an inference that he was aware of the alleged conspiracy only to a certain point. Investigator Jones also testified that Mr. Doe voluntarily surrendered his license after his interview. This act on Mr. Doe’s part was an initial acknowledgment of an administrative violation that could be imposed and in no way implicates him in a crime. Indeed, Investigator Jones testified under cross-examination that Mr. Doe undertook efforts with his counsel, subsequent to this event, to obtain his license back from TSPB which resulted in proposed rehabilitation efforts in order to do so. He concluded his testimony by discrediting proposed Government witness, Sammie Lewis 30. II. JOEL DUNN DEA Special Agent, Joel Dunn was the case agent and government witness who testified that he was present at the search warrant and interviewed Mr. Doe. Dunn testified that Mr. Doe initially stated that he would come to the pharmacy daily. However, when confronted with the fact that the pharmacy was under surveillance, his story shifted to stating that he came often. The Government after having entered a plea agreement with Lewis and placing his name on their witness list chose not to call him to the stand. 30
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When Dunn asked Mr. Doe about Sammie Lewis and his wife, Remossive Lewis, Mr. Doe indicated that he was aware that Sammie Lewis did not have a pharmacist license in Texas but that he was educated elsewhere. Mr. Doe also acknowledged that the licenses for neither Lewis nor his wife, Remossive, were displayed in the pharmacy. Dunn also testified that Mr. Doe was asked why he turned over the pharmacy to two unlicensed individuals. Mr. Doe responded that he was having trouble getting the pharmacy off the ground and that he needed to work at Parkland Hospital. Finally Dunn testified that he reminded Mr. Doe of his prior administrative sanction and that Mr. Doe voluntarily surrendered his license for the pharmacies. Dunn’s testimony provides compelling evidence of administrative violations somewhat similar to Mr. Doe’s previous sanction for allowing an unlicensed individual to operate in a pharmacy. There is no direct evidence, nor admissions from Mr. Doe, that he knowingly and purposely engaged in the conspiracy alleged. Once again, the Government’s stance regarding Dunn’s testimony is one of inference piled on top of inference regarding Mr. Doe’s willfulness in joining the conspiracy alleged. The mental gymnastics engaged in by the Government would require one to pile speculation on top of the inferences drawn from such evidence. III. REMOSSIVE LEWIS The Government entered into a plea bargain agreement with Remossive Lewis, the wife of Sammie Lewis, and called her as a witness. Ms. Lewis whose testimony, as instructed by the Court, is to be weighed with great caution and care, testified that her role in the operation of the pharmacy was limited. She testified that despite being the lone signatory on the pharmacy’s bank account at Capital One, she received her instructions for operating the account from Sammie Lewis. She also testified that she was physically separated from Sammie Lewis on at least two occasions during the operation of the pharmacy which resulted in her obtaining a separate home in an apartment. Importantly, she testified that she was not present nor privy to any conversations between Sammie Lewis and John Doe when they first met. However, she curiously recalled a written agreement between Lewis and Doe that she claimed would either be located in she and Lewis’ home, or the pharmacy. No such agreement was ever produced by the Government. Remossive Lewis also testified that from time to time Mr. Doe would coach Lewis on how to mix the pharmaceuticals. She also testified that Mr. Doe worked at Parkland Hospital at night and would come by the pharmacy tired and sleepy. In fact, she testified that he would sleep while at the pharmacy until Sammie Lewis instructed him to go home and rest. This testimony from one of the alleged co-conspirators did not offer any direct evidence that Mr. Doe knowingly and intentionally joined the charged conspiracy. Again, one needs to engage in conjecture and inference upon inference to connect the dots to attempt to prove Mr. Doe’s culpable mental state. Faced with an absence of evidence, including the total lack of proof that Mr. Doe received any proceeds, financial gains, nor luxury items for his role in the conspiracy unlike his alleged co-conspirators, the Government engages in conjecture and speculation built on inferences. Mr. Doe’s role and lack thereof at the pharmacy does not come Page 154 of 166
close to satisfying the requisite culpable mental states that must be proven beyond a reasonable doubt. Such a conjectural showing is insufficient to support the conviction. PART FOUR: COMPARING THE RECORD EVIDENCE TO THE CASE LAW The evidence adduced at trial was insufficient to secure a valid conviction. When the trial record in this case is compared against relevant case law, the patent insufficiency of the Government’s evidence becomes even more strikingly obvious. As the threshold element, the government was required to prove beyond a reasonable doubt that Mr. Doe knowingly and intentionally joined in the charged conspiracy. The Government’s evidence established no more, and arguably substantially less, than a legally insufficient coin flip on this element. The government repeatedly asserts that Mr. Doe confessed to the crime by his statements and his actions. I. MR. DOE’S STATEMENTS A. Wayne Jones Investigator Jones of the TSPB interrogation of Mr. Doe revealed evidence that Mr. Doe expressed “surprise” that the pharmacy was being operated in the fashion that it was by “Dr. Sammie Lewis.” Jones further testified that Mr. Doe orally stated that he had “no knowledge” of the activities at the pharmacy. The handwritten statement of Mr. Doe corroborated his oral statements and his surprised demeanor by again asserting that he was “unaware” of the operation of the pharmacy “to this extent” (see Government’s Exhibit No. 11). The last line of the statement outlined that he “trusted” Lewis and the “co-workers” to operate the pharmacy. It is quite evident from the compelling and substantial evidence from the mouth and pen of Mr. Doe that he was not aware of the charged conspiracy and certainly did not join in said conspiracy willfully. The Government’s tortured logic regarding this evidence would involve a suspension of belief that Mr. Doe was “unaware” and had “no knowledge” of the charged conspiracy and that the phrase “to this extent” belies Mr. Doe’s own statements and that he was knowledgeable of the conspiracy only to a certain degree. This logic calls for conjecture and speculation and is not proof beyond a reasonable doubt. B. Joel Dunn As detailed above in PART THREE, Special Agent Jones testified that Mr. Doe initially misled him regarding his frequency of visits at the pharmacy until confronted with surveillance evidence. Agent Dunn also testified that Mr. Doe admitted that the requisite pharmacy licenses for “Dr. Sammie Lewis” and his wife, Remossive Lewis, were not displayed at the pharmacy. These admissions certainly invoke administrative violations of the TSPB. However, these were certainly not admissions of involvement in the charged criminal conspiracy. II. MR. DOE’S ACTIONS Page 155 of 166
Both Investigator Jones and Agent Dunn testified that Mr. Doe surrendered, respectively, his personal pharmacy licenses issued by the TSPB and the pharmaceutical licenses issued by the DEA. Thus, the Government’s argument that the actus reus – licenses surrendered to the governing agencies – proved the mens rea beyond a reasonable doubt. The Fifth Circuit, however, already has rejected efforts to prove mens rea in such a “circular and self-serving” fashion. Alvarez at 334. In Alvarez, a jury convicted the defendant of knowingly possessing drugs that were found “in the residence over which [the defendant] exercised custody and control.” Id. at 334. The defendant did not dispute that a “cache of drugs and money” was found “hidden” in the residence (a trailer). Id. The defendant did, however, dispute the allegation the he has “knowledge” of the drugs and money. Id. In support of evidentiary sufficiency of its case, the government pointed to several pieces of circumstantial evidence that, in its view, supported a finding of “knowledge” beyond a reasonable doubt. Among other things, the government argued “that the existence of the … hidden compartment [in which the drugs and money were found] shows that [the defendant] knew about the compartment’s contents ….” Id. The Fifth Circuit called this argument “both circular and selfserving.” Id. The Fifth Circuit pointed out that, if accepted, the government’s argument “would all but eliminate the knowledge requirement each time a hidden compartment merely existed.” Id. at 335. What the Government is seeking to argue in this case – that Mr. Doe’s surrender of his license is evidence that he possessed the requisite intent, and knowledge in willfully joining the conspiracy – is analogous to the “circular and self-serving” argument it unsuccessfully advanced in Alvarez. Rather than adduce actual evidence that Mr. Doe acted with the requisite intent to join the charged conspiracy, the Government started from a presumption of guilt and then made a series of arguments for why Mr. Doe must have been acting with the requisite mens rea when he committed the actus reus. 31 The Government’s evidence in this case was characterized by modest evidentiary showings, equivocal or attenuated evidence of guilt, or a combination of all three. See also, United States v. Cartwright, 359 F.3d 281, 291 (3rd Cir. 2004) (evidence found insufficient where Government asked the jury to make a series of inferences on weak facts where “countless other scenarios that do not lead to the ultimate inference the Government seeks to draw” were also plausible). The issue of mens rea was recently addressed in United States v. Cessa, 785 F.3d 165 (5th Cir. 2015) where it was held that evidence of the defendant’s knowing acceptance of illegal drug proceeds as payment for his services was not sufficient to support his conviction for a money laundering conspiracy notwithstanding that his actions had the effect of concealing the illegal proceeds. The Court reasoned that there was insufficient evidence to prove beyond a The motive theories advanced by the Government, though unsupported by any evidence, were diverse. One motive theory was that Mr. Doe “believed” that his prior administrative sanction in 2009 resulted in punishment so lenient that he decided to engage in similar conduct. However, the government also infers that he took this similar conduct to the next level by purposely taking a giant step in joining the charged criminal conspiracy. This strained reasoning defies logic. An additional theory advanced is that Mr. Doe obtained monies from the conspiratorial scheme in order to open a second pharmacy. However, there was absolutely no evidence ever proffered on this theory.
31
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reasonable doubt that the defendant joined the conspiracy, “knowing its purpose and with the intent to further the illegal purpose” citing United States v. Fuchs, 467 F.3d 889, 906 (5th Cir. 2006). The Court further stated that additional circumstantial evidence of intent to further the illegal conspiracy must be present. Id. 906. This is the identical and critical third element in our case where the government’s evidence falls woefully short. The Supreme Court decision in Elonis v. United States, 135 5. Ct. 2001 (2015) provides more guidance. The holding in Elonis is based on the principle that “wrongdoing must be conscious to be criminal,” and that a defendant must be “blameworthy in mind” before he can be found guilty. Id. at 2009. This principle does not mean that a defendant must know that his conduct is illegal (i.e., ignorance of the law is no excuse), but rather, he must have knowledge of “the facts that make his conduct fit the definition of the offense.” Id., citing Staples v. United States, 511 U.S. 600, 608, fn.3 (1994). CONCLUSION The Government’s evidence in this case has failed to satisfy the required element of mens rea on the part of John Doe. The evidentiary record in this case, and for this defendant, clearly suggests that a grant of this Rule 29 motion is just and required. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700 CERTIFICATE OF SERVICE
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION UNITED STATES OF AMERICA v. JOHN DOE (2), Defendant.
§ § § § §
NO: 4:14-CR-000000
JOHN DOE’S MOTION FOR NEW TRIAL RULE 33, FED. R. CRIM. PROC. INTRODUCTION
Rule 33 states that upon the Defendant’s motion, “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33; United States v. Wall, 389 F.3d 457, 466 (5th Cir. 2004). “The burden of demonstrating that a new trial is warranted ‘in the interest of justice’ rests on the defendant.” United States v. Soto-Silva, 129 F.3d 340, 343 (5th Cir. 1997). Rule 33 motions are not favored and are viewed with great caution. United States v. Blackthorne, 34 F.3d 449, 452 (5th Cir. 2004). “The grant of a new trial is necessarily an extreme measure, because it is not the role of the judge to sit as a thirteenth member of the jury.” United States v. O’Keefe, 128 F.3d 885, 898 (5th Cir. 1997); but see United States v. Robertson, 110 F.3d 1113, 11120 n. 11 (5th Cir. 1997). “Motions for new trial are based either on the grounds that the verdict was against the weight of the evidence or that some error was committed by the court or the prosecution which substantially affects the rights of the accused.” United States v. Simms, 508 F. Supp. 1188, 1202 (W.D. La. 1980). In the Fifth Circuit, “the generally accepted standard is that a new trial ordinarily should not be granted unless there would be a miscarriage of justice or the weight of evidence preponderates against the verdict.” United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011)(emphasis added); see Wall, 389 F.3d at 466. Unlike the Rule 29 motion where the evidence must be viewed in a light most favorable to the verdict, in determining whether to grant a Rule 33 motion, the Court “may weigh the evidence and may assess the credibility of the witnesses during its consideration of the motion for new trial.” United States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005) (citing Robertson, 110 F.3d at 1117). Thus, the court has broad discretion to grant a new trial “in the interest of justice.” United States v. Scroggins, 379 F.3d 233 (5th Cir. 2004), vacated on other grounds, 543 U.S. 1112, 125 S.Ct. 1062, 160 L.Ed.2d 1049 (2005); United States v. Antone, 603 F.2d 566 (5th Cir. 1979). Deference is given to the district court because it actually observed the demeanor of witnesses and their impact on the jury. Wall, 389 F.3d at 465; O’Keefe, 128 F.3d at 893. “[E]vidence which merely discredits or impeaches a witnesses’ testimony does not justify a new trial.” United States v. Blackthorne, 378 F.3d 449, 455 (5th Cir. 2004)(citation omitted). A Page 158 of 166
new trial may be appropriate where the evidence only tangentially supports a guilty verdict and the evidence “preponderates sufficiently heavily against the verdict such that miscarriage of justice may have occurred.” Tarango, 396 F.3d at 672. I. DISCUSSION The Government has failed to present sufficient evidence that John Doe was part of a conspiracy between he and the co-defendants, as alleged in the indictment. See also, John Doe’s MOTION AND BRIEF FOR JUDGMENT OF AQUITTAL (Rule 29 (a) and (c), Fed. R. Crim. Proc.) filed contemporaneously with this motion. The testimony of the government’s witnesses failed to establish a conspiracy but merely supports the conclusion that the Defendant associated with his co-defendants regarding the sale of a pharmacy to said co-defendants who were, as it turned out, unlicensed to operate the pharmacy. To prove the conspiracy under 21 U.S.C. § 846, the government must prove the offense elements to include, but not limited to, that Mr. Doe joined in the conspiracy willfully, with the intent to further its unlawful purpose. The evidence adduced at trial only tangentially supported a guilty verdict. The inference upon inference relied upon by the government in its evidence presentation allegedly relied upon “confessions” given orally and in writing by Mr. Doe to the investigating agents. However, close scrutiny of said “confessions” reveal the demeanor of surprise and actual statements reflecting his lack of knowledge of the internal operations of the pharmacy by his co-defendants. His alleged incriminating statements to special agent Dunn only proved administrative violations of the rules and regulations of the Texas State Pharmacy Board and did not encompass the requisite culpable mental state one must possess to “willfully” join the charged criminal conspiracy with the “intent to further its lawful purpose” (See Court’s instructions on Third essential element of conspiracy). The evidence regarding Mr. Doe’s surrender of his pharmaceutical licenses reflect his acknowledgment of the administrative rules and his attempt to respond in good faith. This act is not, and should not, be construed as a tacit admission of guilt. The testimony of co-defendant, Remossive Lewis, whose credibility can be reasonably and honestly questioned, failed to supply the missing link of Mr. Doe’s mens rea. First, her minimization of her role during her testimony belies the documentary evidence (bank records) and her unjust enrichment from the proceeds she and co-defendant, Sammie Lewis, exclusively obtained. Her attempts to provide the link by stating that Mr. Doe and Sammie Lewis memorialized the unlawful conspiracy strains credibility by the nature of this testimony and her statements that she actually observed the contract at her house or office. In addition, this alleged written agreement was never produced and never cited by any other witness. Finally, her plea agreement and her understanding that she is anticipating probation and/or home confinement as a sentence, also deeply compromises her credibility. This Rule 33 motion invokes the “interest of justice” standard as appropriate where the weight of the evidence preponderates against a verdict. Wall at 466.
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The evidence in this case lacks sufficiency and credibility on the issue as to whether Mr. Doe willfully joined in the charged conspiracy with the intent to further its unlawful purpose of distribution and dispensing of hydrocodone. CONCLUSION For all of the reasons at forth, above and in the defendant’s Motion and Brief for Judgment of Acquittal (Rule 29 (a) and (c), Fed. R. Crim. Proc.), Mr. Doe respectfully requests that the court grants this motion and order a new trial. Respectfully submitted, /s/Michael P. Heiskell Michael P. Heiskell State Bar No. 09383700
CERTIFICATE OF SERVICE
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Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Cross Examination
Speaker:
Damon Parrish II
Harris County PDO 1201 Franklin St, 13th Floor Houston, TX 77002-1929 713.368.0016 phone damon.parrish723@gmail.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
CROSS EXAMINATION BY: Damon Parrish II INTRODUCTION Cross-examination is perhaps one of the most important and fundamental tools in the trial lawyer’s litigation tool box. In fact, most lawyers first love of the law, and trial work, probably came from watching some fictitious lawyer on film during an overly dramatic but completely effective cross examination. With an effective cross examination we are able to challenge the evidence being asserted against our clients, we can expose any lies, over reaching and bias with the ultimate goal of finding reasonable doubt. Despite the intrinsic value of this constitutional right to ensure justice, numerous people accused of crimes are denied effective cross examination in their cases – some are denied this tool of justice because of the courts… others because of their advocates. Cross-examination can be difficult a trial skill to master but it is also one of the most enjoyable trial skills. It is not uncommon to struggle with cross-examination, and I believe the biggest struggle is how to get started and get into the flow of the cross examination. Raw skill and natural talent can help, but it is through proper investigation, preparation, practice, creativity and bravery can we truly master this skill. I. CROSS-EXAMINATION AS A RIGHT WORTHY OF PROTECTING The Sixth Amendment’s Confrontation Clause provides that, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The United States Supreme Court has held that this bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). And in Crawford v. Washington, 541 U.S. 36, 42-52 (U.S. 2004), the Supreme Court expanded an accused’s right to cross examine. The Supreme Court has observed that the right to confront one’s accusers is a concept that dates back to Roman times. See Coy v. Iowa, 487 U.S. 1012, 1015, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988); Herrmann & Speer, Facing the Accuser: Ancient and Medieval Precursors of the
Confrontation Clause, 34 Va. J. Int'l L. 481 (1994). The framers of the Constitution would get this concept from the common law. English common law has long differed from continental civil law in regard to the manner in which witnesses gave testimony in criminal trials. The commonlaw tradition is one of live testimony in court subject to adversarial testing, while the civil law condones examination in private by judicial officers. See 3 W. Blackstone, Commentaries on the Laws of England 373-374 (1768). Specifically, in Crawford the Supreme Court observed that history supports two inferences about the meaning of the Sixth Amendment: First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh’s; that the Marian statutes invited; that English law’s assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind. Accordingly, we once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon "the law of Evidence for the time being." 3 Wigmore § 1397, at 101; accord, Dutton v. Evans, 400 U.S. 74, 94, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970) (Harlan, J., concurring in result). Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices. Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court. This focus also suggests that not all hearsay implicates the Sixth Amendment's core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them. The text of the Confrontation Clause reflects this focus. It applies to "witnesses" against the accused--in other words, those who "bear testimony." 2 N. Webster, An American Dictionary of the English Language (1828). "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who
makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement. Crawford, 541 U.S. at 42-52. Through Crawford, an accused has the right to examine the maker of any testimonial statements against him. The Supreme Court through the most unlikely source, Justice Scalia, affirmed that the Constitution ensures that every testimonial assertion against the accused should be challenged. II. RESTRICTIONS ON THE SCOPE OF CROSS-EXAMINATION Courts and the rules of evidence provide some limitation on cross examination. Indiana Rule of Evidence 611 provides, a)
A.
Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1)
make those procedures effective for determining the truth;
(2)
avoid wasting time; and
(3)
protect witnesses from harassment or undue embarrassment.
(b)
Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
(c)
Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions: (1)
on cross-examination; and
(2)
when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
Investigation. Effective and meaningful cross-examination starts with thorough and active
investigation. Know your client’s story, the facts and evidence against him. Investigate the facts (people, places and alleged occurrences). Investigate the alleged scene. Interview any person connected to the case: witnesses, experts, client, client’s friends and family. Analyze the scene against the facts. Investigate people to find out about their backgrounds and their reputations. Investigate their experience and their educational background. B.
Once you have a good working knowledge of the facts and law applicable to your case,
you should prepare a defensive theory of your case. Your defensive theory is what drives every aspect of your preparation, outline and flow of your case. Prepare an outline for each witness
with the simple question of how do I need to cross examine this witness to further my defensive theory. How does this witness add, detract, or mitigate my defensive theory and what can I do to either turn this witness into aid of my defensive theory or at the least soften the blow of their direct testimony. Do not be afraid of avoiding cross-examining a witness, especially if the only available cross examination will likely “open the door” to other inadmissible and harmful evidence to your defensive theory or if utilizing cross examination on this witness will not further your case / defensive theory. Consider writing out every question in advance or writing enough information to help you formulate your questions immediately and on demand. But do not be married to your questions because the testimony might vary from what you anticipate it will be. With experience, one can become more flexible and use an outline or use a list of subjects about which to cross examine. Formulate some questions from known sources of information that you can readily access (police reports, prior testimony, medical records, prior statements, etc.). Formulate some questions that fit the theory of your case. C.
Conducting the Examination. One of the keys to effective cross-examination is to listen.
Listen to the answers to questions asked on direct examination and take good notes. Listen for inconsistencies in the evidence as you know it. Listen for illogical answers and answers that are inconsistent with the state’s theme and state’s witnesses. Listen for inconsistencies with common experiences. Listen for opportunities for impeachment. Testify. Use cross-examination to tell the jury your client’s story. This is one of the few times the advocate has to opportunity to challenge the assertions of the witness and to advance the client’s position. Take advantage of the opportunity to talk with the jury. Do not just repeat direct examination, unless you do so to discredit it. Primarily use leading questions, but do not be afraid to ask non-leading questions when appropriate. Use tools of impeachment - prior statements, prior recorded statements, etc. Use extrinsic evidence or testimony of other witnesses who can contradict the first witness’ untruthful statement. Or use cross-examination to show bias or motive to demonstrate to the jury the witness’ reason for lying. If the witness has not been consistent in his or her statements, impeach the witness
with prior inconsistent statements – video, audio, pre-trial witness interviews, or with statements made to other people. Remember primacy and recency, start and end on a strong note. Lastly, remember that most people, especially law enforcement, do not want to look either vulnerable, dumb or unprepared on the witness stand. Typically they have a false sense of bravado that can be exploited to our benefit. In these types of examinations, officers will avoid any answer that makes them seem inept, dumb or without knowledge, so questions can be phrased in such way that the officer’s only way to answer to avoid those feelings is to answer affirmatively, or the manner in which you want them to answer. Lawyer: Detective Smith, you successfully graduated from the academy, correct? Detective Smith: Yes [sir or ma’am] Lawyer: And while at the academy you learned the importance of evidence? Detective Smith: Yes [sir or ma’am] Lawyer: You learned how to analyze a scene and search for valuable pieces of evidence that would aid you in figuring out what happened and who is responsible? Detective Smith: Yes[sir or ma’am] Lawyer: Detective Smith, you have done numerous investigations utilizing the skills you have learned both in the academy and from active investigations? Detective Smith: Yes [sir or ma’am] Lawyer: Detective Smith, as detective it is important for you to do an active and thorough investigation and identify all of the clues and evidence that will help you, correct? Detective Smith: Yes [sir or ma’am]
Lawyer: So it is fair to say that, when you made this scene and began your investigation, you utilized the entirety of your skill set in this investigation, because you are a good detective and this important to you? Detective Smith: Yes [sir or ma’am] Lawyer: So if there was evidence of X or Y, you would have found it since you know what to look for, where to look for it and how to find it? Detective Smith: Yes [sir or ma’am] Lawyer: Since you did not find evidence of X or Y, it is fair to say that it didn’t exist, because if it did you would have found it? Detective Smith: (reluctantly) Yes [sir or ma’am] III.
TYPES OF CROSS-EXAMINATIONS: The Soft Cross-examination is a type of cross-examination where in the lawyer modifies
the style and/or the content of the cross examination to appropriate the emotions of the case. Instead of being “in your face and aggressive,” the lawyer is aware of the effect of the mode of questioning on the jury. For example, a jury might become upset at a lawyer who aggressively questions a young child. So a lawyer might speak to a child witness gently, as if he were speaking to a child. Additionally, some jurors might see some fact witnesses (like nurses or medical personnel) as simply doing their jobs. They might react adversely to a lawyer who attacked a witness they perceived as merely doing their job. During the soft cross, the lawyer modifies the style of the cross-examination to take into account how a jury might react to the lawyer (seeking to avoid a negative reaction). The soft cross-examination also involves a modification of the content of the crossexamination. Instead of attacking the witness head on, the lawyer seeks to peel back emotional layers to reveal bias or other elements. For example, in attacking a snitch/cooperating witness a lawyer engaged in a soft cross might focus on the collateral emotional losses that the witness is facing instead of focusing merely on the punishment the witness faces. A typical cross of a snitch might look like this:
Lawyer: Mam, you have agreed to testify against my client in this case, right? Snitch: Yes. Lawyer: You are charged in a conspiracy case, true? Snitch: Yes. Lawyer: You are facing twenty years in the pen, true? Snitch: Yes. Lawyer: You are saying whatever you can to avoid doing that time, true? Snitch: I am telling the truth. Lawyer: But a different truth wouldn’t get your time off, would it? The content of the Soft cross might look like: Lawyer: Mam, you are a mother of three, true? Snitch: True. Lawyer: You are in jail now? Snitch: Yes. Lawyer: You aren’t able to see your kids while you are lock up, are you? Snitch: No. Lawyer: You can’t take them to school? Snitch: No. Lawyer: You can’t talk to their teachers to find out what’s going on with them can you? Snitch: No. Lawyer: You aren’t at home to greet them when they come home from school, are you? Snitch: No.
Lawyer: The longer you are incarcerated, the less you will be able to do this are you? Snitch: Yes. The soft-cross attempts to pull back emotional layers to develop bias, interest or motive. Many lawyers who use this method also employ psychodrama to further develop their cross examinations. They urge that psychodrama gives them insight into the emotional layers of the witness by helping them “get into the skin of the witness.” The Story-Telling Cross-examination is another form of cross-examination. A story-telling cross merely tries to tell the story of the witness, of the case, of a theory or of an object through crossexamination. With the story-telling cross an advocate is trying to communicate with and persuade jurors. During the story-telling cross, the advocate is trying to have a conversation with her neighbor over the fence as she is working in her yard. Or the advocate takes the approach that she is having a conversation in the lobby after church. Speak in plain English. (Talk as if you are talking with everyday people, otherwise known as potential jurors.) Put away lawyer language like “calling your attention to the date on which the occurrence in question took place” and references to “exiting vehicles.” Real people get out of cars, they do not exit vehicles. So instead of calling the witness’s attention to the date in question in which the occurrence took place, instead simply state “Let’s talk about what you did on April 4, 1968, before you left the Lorraine Hotel after Dr. King was shot.” Try to use short declarative statements during the story-telling cross-examination. While much of the traditional cross-examination requires control of the witness, it is not necessary to use the “prefixes” and “suffixes” of the leading question format -the prefixes “Is it a fact that . . . ?” “Isn’t it true that . . . ?” or the suffixes “. . . , correct?” or “. . . , isn’t that true?” or “..., am I correct?” You can use these leading question techniques, but you can obtain the information without using them. And they have a tendency to break up the story. For example, “You are James Earl Ray.” You do not need to say “Isn’t it a fact that you are James Earl Ray?” or “You’re James Earl Ray, correct?” Just state the fact and have the witness affirm it or deny it. Generally, during the story-telling cross most of the answers to questions should be “Yes.” That is because
you are using the cross-examination to tell your story and enhance your credibility. It is also a fast, efficient way to provide the jury with information. It also allows the cross-examiner to tell a story and to state the facts. The only role the witness plays is to affirm the trial lawyer’s statements. A good way to employ the story-telling cross-examination is to first write the story you want to tell through the witness as a narrative. Simply write out a paragraph (using short, declarative sentences) telling the story you want to tell. For example, Martin Luther King, Jr., was a prominent American leader of the African-American civil rights movement. Dr. King won the Nobel Peace Prize. He was assassinated at the Lorraine Motel in Memphis, Tennessee, on April 4, 1968. He was 39 years old when he was assassinated. On June 10, 1968, James Earl Ray was arrested in London at Heathrow Airport. Ray was a fugitive from the Missouri State Penitentiary. He was later extradited to the United States, and charged with the crime. On March 10, 1969, Ray entered a plea of guilty. He was sentenced to 99 years in the Tennessee state penitentiary. Ray later made many attempts to withdraw his guilty plea. He was unsuccessful. He died in prison on April 23, 1998. The question and answer might look like this, Q. Martin Luther King, Jr., was a famous? A. Yes. Q. He was a leader of the civil rights movement in the 60s? A. Yes. Q. The Civil Rights Movement was a National Movement? A. Yes. Q. It ended Jim Crow? A. Yes. Q. It ended the forced separation of people by race in our nation? A. Yes. Q. Dr. King won the Nobel Peace Prize?
A. Yes. Q. The Nobel peace prize was an international award? A. Yes. Q. He was one of the youngest winners of the prize ever? A. Yes. Q. He was assassinated? A. Yes. Q. He was assassinated at the Lorraine Motel in Memphis, Tennessee? A. Yes. Q. He was killed on April 4, 1968? A. Yes. Q. He was only 39 years old when he died? A. Yes. Q. On June 10, 1968, James Earl Ray was arrested in London at Heathrow Airport? A. Yes. Q. Ray was a fugitive from the Missouri State Penitentiary? A. Yes. Q. He was later extradited to the United States? A. Yes. Q. He was charged with killing Dr. King. A. Yes. Q. On March 10, 1969, Ray pled guilty to killing King. A. Yes.
Q. He was sentenced to 99 years in the Tennessee state penitentiary. A. Yes. The Traditional Cross-examination generally serves two primary purposes and they manifest themselves in either a Destructive Cross or a Supportive Cross. The goal of a destructive cross is to discredit the testifying witness or another witness. This type of cross is designed to reduce the credibility of the witness or the persuasive value of the opposition’s evidence. The use of impeachment material is a key to destructive cross, as it is the ability to attack and discredit the bases for the witnesses’ statements or opinions. The questioner’s goal is to establish control of the witness. The goal of the supportive cross is to bolster the questioner’s own theory of the case and tell the defense story. It should develop favorable aspects of the case not developed on direct examination or expand on these aspects. This testimony may support your witnesses or help to impeach other witnesses. Control is the key to the traditional cross examination. The lawyer never asks a question to which he does not know the answer (or what the answer will be). The lawyer always asks leading questions with a suffix or prefix. The lawyer never relinquishes control. IV.
IMPEACHMENT
A. Prior Inconsistent Statement. Raising prior inconsistent statements is the most frequently used impeachment method at trial. More than any other impeachment method, however, impeaching with prior inconsistent statements requires a precise technique to be effective before a jury. Rule of evidence 613, requires that the witness have an opportunity to admit, deny or explain making the inconsistent statement. Prior inconsistent statements can be either collateral or non-collateral. If it is non-collateral, and the witness does not admit making it, you must prove it up with extrinsic evidence. The basic structure of the impeachment technique involves three steps: recommit, build up, and contrast. First, recommit the witness to the fact he asserted on direct, the one you plan to impeach. Try to do this in a way that does not arouse the witness’ suspicions. Use the witness’ actual answer on direct when you recommit him because he is most likely to agree with his own statements.
(You could also challenge the witness to admit the facts he stated in a prior inconsistent statement and get a denial of them). Second, build up the importance of the impeaching statement.
Direct the witness to the date,
time, place and circumstances of the prior inconsistent statement, whether oral or written. Show that the statement was made when the witnesses recollection was fresher or under circumstances that the witness would be likely to tell the truth (under oath, closer in time to an event, made to assist in an investigation, etc.). Third, read the prior inconsistent statement to the witness and ask him to admit having made that. Use the actual words of the impeaching statement. And project your attitude to signal to the jury what its attitude should be during the impeachment. If your attitude is that the witness was lying, confused, or forgetful; then broadcast it with your tone, facial expressions, cadence, demeanor, etc. 1 Besides prior inconsistent statements witness can be impeached many different ways on crossexamination. Witness can be impeached by showing bias, interest and motive; through the use of prior convictions; through the use of prior bad acts; through other witnesses; through contradictory facts; through reputation and opinion testimony. B. Untruthful Character Evidence of untruthful character can only be gained from reputation and opinion evidence. Specific instances of misconduct, and generally speaking extrinsic evidence, is not allowed for evidence untruth character. Testimony from witnesses that know the character of the actor in question and in their opinion actor in question has a reputation of untruthfulness is allowed, but this testimony is generally limited to that extent. Be mindful that in criminal cases involving sexual assault, Rule 412 (rape shield) specifically excludes: (1) character and reputation of a victim’s sexual past, or (2) specific instances of a victim’s past sexual behavior.
1
See Thomas A. Mauet, Fundamentals of Trial Techniques, p. 242-43.
There are severe penalties for crossing this line without previous court approval so be careful that the untruthful character evidence being elicited does not violate Rule 412. C. Bias Unlike untruthful character evidence which is limited in scope, bias is much more open and expansive. Courts have generally been in favor or providing great latitude in exposing bias in a witness. Under Texas Rule 613 (b), there must be a logical connection between impeaching evidence and bias, meaning that just because a witness is a racist SOB that does not mean the witness is biased against your client. Therefore, in this scenario, it is vital that you connect the witness’ racism to a bias against your client.
Once you have that logical connection between the
impeaching evidence and a bias against your client, you can proceed to confront the witness with the impeaching evidence. Once confronted with the evidence, the witness is given the opportunity to explain or deny the impeaching evidence and its logical bias connection to your client. If the witness denies the evidence then you can offer extrinsic evidence of the bias. Which means, specific instances of misconduct can be offered as extrinsic evidence to show bias. D. Criminal History Under Texas Rule 609, evidence of a criminal conviction to attack a witness’ character for untruthfulness must be admitted if: (1) the crime was a felony or crime involving moral turpitude; regardless of punishment, (2) the probative value of the evidence outweighs it prejudicial effect; and (3) it is elicited from the witness or established by public record. The 2nd prong is the best way to attack this since not all criminal history has probative value but is most certainly has prejudicial value. If more ten years of have passed since the witness’ conviction or release from confinement, then the conviction is only admissible if its probative value outweighs its prejudicial effect and it must be supported by specific facts and circumstances. Which means just having the judgment and sentence is not enough, there must be something specific about the facts of the conviction that has
probative value to show untruthful character of the witness, something more than they are just a convicted felon or their conviction involves a crime against moral turpitude. V.
CONCLUSIONS Cross – examination can be scary but it is in my opinion the most enjoyable and best tool
to implement our defensive theory. Through effective cross - examination we can tell our client’s story, mediate the damaging evidence established through the State’s direct and get forth information to the jury without putting our client’s on the stand. Besides voir dire, I cannot think of any of other aspect of trial that requires more preparation and personality considerations than cross examination. Each witness’ personality, job function and testimonial impact in front of the jury must be considered and prepared for to effect the desired cross and further the defensive theory. Cross – examination is primarily the only real tool we have to test the validity of the State’s evidence, test the truthfulness of their witnesses and put forth our defensive theory in the least riskiest way for our clients. However, as stated earlier, through proper investigation, preparation, practice, creativity and bravery can we truly master this skill.
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
An Introduction to Federal Sentencing
Speaker:
Author:
Judy Madewell
Federal Public Defender 727 E Cesar E Chavez Blvd Rm B207 San Antonio, TX 78206 210.472.6700 phone 210.472.4454 fax judy.madewell@fd.org email
Office of the Federal Public Defender Western District of Texas
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
An Introduction to Federal Sentencing Fifteenth Edition
Office of the Federal Public Defender Western District of Texas
May 2023
Table of Contents
Economic offenses. ................................... 13
The Basic Statutory System .............................. 1
Child pornography. .................................. 14
The Act’s Original Requirements. ............... 1
Firearms offenses...................................... 14
Booker and the Advisory Guidelines. .......... 2
Immigration offenses. ............................... 15
Guidelines and Statutory Minimums. .......... 3
Chapter Three: Adjustments. .................... 15
Drug offenses. .............................................. 3
Role in the offense. .................................. 16
Firearms offenses. ....................................... 3
Obstruction. .............................................. 16
Child and sex offenses. .............................. 4
Multiple counts.......................................... 16
Sentencing below a statutory minimum. .................................................... 5
Acceptance of responsibility. ................. 17 Chapter Four: Criminal History................ 18
No Parole; Restrictions on Early Release from Prison. ................................................... 5
Criminal history departure. .................... 18
Probation and Supervised Release. ............. 5
Career offender...................................... 18
Probation. ..................................................... 5 Supervised release. ..................................... 6 Conditions, early termination, and revocation. ................................................. 6 Fines and Restitution. ..................................... 7 Sentence Correction and Reduction. ......... 7 Appellate Review. ........................................... 8 Victims’ Rights. ................................................ 9 Petty Offenses; Juveniles. ............................ 10
Repeat offenders....................................... 18 Armed career criminal. ......................... 19 Repeat child sex offender..................... 19 Chapter Five: Determining the Sentence; Departures. .............................. 19 The Sentencing Table. ............................. 19 Departures. ................................................ 20 Chapter Six: Sentencing Procedures and Plea Agreements. ....................................... 21
Statutory Amendments. .............................. 10
The presentence report; dispute resolution................................................. 22
The Guidelines Manual ...................................... 10
Plea agreements. ....................................... 23
Chapter One: Introduction and General Application Principles. ............................... 10
Chapter Seven: Violations of Probation and Supervised Release. ........................... 23
Determining the applicable guideline. ... 11
Chapter Eight: Sentencing of Organizations.............................................. 23
Relevant conduct....................................... 11
Appendices. ................................................... 23
Guidelines, policy statements, and commentary. ............................................ 12
The Guidelines and Sentencing Advocacy .. 23
Chapter Two: Offense Conduct. .............. 12
Step-by-Step Guideline Application. ......... 23
Drug offenses. ............................................ 13
Challenging the Basis of a Particular Guideline. .................................................... 24
An Introduction to Federal Sentencing
ii
Sentencing Memorandum............................ 25 Sentencing Hearing. ...................................... 26 Plea Bargaining and Federal Sentencing ....... 26 The Types of Federal Plea Agreement. .... 26 Charge bargains. ........................................ 27 Relevant conduct. ................................... 27 Multiple-count grouping. ....................... 27 Sentencing recommendations; specific sentencing agreements. ......................... 28 Acceptance of Responsibility...................... 28 Cooperation. ................................................. 29 “Fast-track” Dispositions. ........................... 30 Some Traps for the Unwary .......................... 30 Pretrial Services Interview. ......................... 30 Presentence Report and Probation Officer’s Interview. .................................... 30 Waiver of Sentencing Appeal. .................... 32 Guideline Amendments. .............................. 33 Validity of Guidelines. .................................. 34 More About Federal Sentencing.................... 34 The Supreme Court’s Post-Booker Sentencing Cases. ....................................... 34 Reference Materials ...................................... 35 Online Information and Telephone Support ......................................................... 36 About This Publication .................................... 36
An Introduction to Federal Sentencing
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IN 1984, THE SENTENCING REFORM ACT replaced the broad discretion traditionally afforded federal judges in sentencing with far more limited authority, controlled by a complex set of mandatory sentencing guidelines promulgated by the U.S. Sentencing Commission. Mandatory-guidelines practice held sway for two decades, until it was fundamentally altered by the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), which excised the Act’s mandatory provisions and rendered the guidelines merely advisory. Under the system created by Booker, judges enjoy far more discretion in their sentencing decisions than they were allowed under the mandatoryguidelines regime. The fact that the guidelines are now advisory rather than mandatory can have a tremendous effect on a defendant’s sentence. That effect can be either positive or negative, and defense counsel must be prepared to gauge the potential benefits and risks of the advisory guidelines at every stage of a federal criminal case, and to use the statutory purposes of sentencing to advocate for the best result for the client. The starting point is a thorough understanding of the federal sentencing process. This paper sets out the statutory basis of guideline sentencing, as altered by the Supreme Court in Booker, followed by an overview of the guidelines themselves. It then attempts to place the guidelines in the larger context of federal sentencing advocacy, a context that demonstrates the need for counsel to be ready, when necessary, to challenge the guidelines’ underlying assumptions and their appropriateness in an individual case. The paper concludes with special sections on plea bargaining and traps for the unwary practitioner. This treatment is far from exhaustive; it provides no more than an overview to facilitate a working knowledge of advisory guideline sentencing as it now stands.
An Introduction to Federal Sentencing
The Basic Statutory System The Sentencing Reform Act created determinate sentences: by eliminating parole and greatly restricting good time credit, it ensured that defendants would serve nearly all the sentence that the court imposed. Congress delegated the responsibility for shaping these determinate sentences to the United States Sentencing Commission, an independent expert body located in the judicial branch. This delegation of authority to the Commission did not, however, end congressional or judicial involvement. Over the years, Congress has mandated particular punishments for certain offenses, specifically directed the Commission to promulgate or amend particular guidelines, and even drafted guidelines itself. Meanwhile, the courts have repeatedly reviewed and interpreted the Act, most prominently in the fundamental judicial excisions of Booker. The Act’s provisions, in its original and post-Booker forms, are described below.
The Act’s Original Requirements. The Sentencing Reform Act directed the sentencing court to impose one or more of four types of punishment in every case: probation, fine, imprisonment, and supervised release. In choosing among these punishments, courts were directed to consider a broad variety of purposes and factors, including “guidelines” and “policy statements” promulgated by the Sentencing Commission. 18 U.S.C. § 3553(a)(4)(A), (a)(5); see also 28 U.S.C. § 994(a)(1), (a)(2). But while the Act provided for a broad range of sentencing considerations, it did not allow an equally broad range of sentencing discretion. Instead, it cabined the court’s discretion within a fixed set of sentencing ranges specified by the guidelines, ranges that were mandatory absent a valid ground for departure. See 18 U.S.C. § 3553(b)(1), (b)(2) (2004). A departure from the applicable range was authorized only when the court found “an aggravating or mitigat-
1
ing circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” § 3553(b)(1). In determining whether a circumstance was adequately considered, the court’s review was restricted to the Commission’s sentencing guidelines, policy statements, and official commentary. § 3553(b)(1).
sentence sufficient, but not greater than necessary,” to achieve a specific set of sentencing purposes:
Booker and the Advisory Guidelines. The Su-
• to protect the public from further crimes of the defendant; and
preme Court’s decision in Booker fundamentally changed 18 U.S.C. § 3553. Applying a line of recent constitutional decisions, 1 Booker held that the mandatory guidelines system created by § 3553(b)(1) triggered the Sixth Amendment right to jury trial with respect to sentencing determinations. 543 U.S. at 226, 243–44. Rather than require jury findings, however, the Court excised § 3553(b)(1). Id. at 226, 245. The result was a truly advisory guidelines system. After Booker, the sentencing court must consider the Commission’s guidelines and pertinent policy statements, but it need not follow them. They are just one of the many sentencing factors to be considered under § 3553(a), along with the nature and circumstances of the offense, the history and characteristics of the defendant, the purposes of sentencing, the kinds of sentences available, the need to avoid unwarranted sentencing disparities, and the need to provide restitution. Booker, 543 U.S. at 259–60. The only restriction § 3553(a) places on the sentencing court is the “parsimony” provision, which requires the court to “impose a
1 See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 490
(2000) (requiring that any fact, other than prior conviction, that increases statutory maximum penalty must be proved to jury beyond reasonable doubt); Blakely v. Washington, 542 U.S. 296, 303–08 (2004) (applying Apprendi to state guideline system).
• to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; • to afford adequate deterrence to criminal conduct;
• to provide the defendant with needed education or vocational training, medical care, or other correctional treatment in the most effective manner. § 3553(a)(2). Beyond this requirement, and the procedural requirement that the court give reasons for the sentence it selects, § 3553(c), the Sentencing Reform Act as modified by Booker places few restrictions on the sentence the court may impose within the limits of the statute of conviction. 2 And the sentence the court chooses is subject to appellate review only for “unreasonableness.” 543 U.S. at 261. Under Booker, § 3553(a) is the essential starting point for federal sentencing today. But Booker and the statute are only the beginning. The Supreme Court has subsequently issued a series of decisions mapping out the advisory guideline system that Booker created. A number of these cases are discussed in the sections that follow. (They are also listed at the end of this paper, under “More About Federal Sentencing.”)
term of imprisonment cannot be imposed or lengthened for rehabilitative purposes, see § 3582(a), and a sentence upon revocation of supervised release cannot be imposed for retributive purposes, see § 3583(e). See generally Tapia v. United States, 564 U.S. 319 (2011) (discussing these statutory provisions).
2 The Act does prohibit certain considerations for cer-
tain types of punishment, however. For example, a An Introduction to Federal Sentencing
2
Guidelines and Statutory Minimums. While Booker expanded the courts’ discretion to sentence outside the guidelines, it did not supersede the statutory sentencing limits for the offense of conviction. Even if the guidelines or other § 3553(a) factors appear to warrant a sentence below the statutory minimum, or above the statutory maximum, the statutory limit controls. Edwards v. United States, 523 U.S. 511, 515 (1998); cf. U.S. SENTENCING COMM’N Guidelines Manual (USSG) §5G1.1 (Nov. 2021) (explaining interaction between guideline and statutory limits). Numerous federal statutes include minimum prison sentences; some, like the federal “three strikes” law, 18 U.S.C. § 3559(c), mandate life imprisonment. In many cases, the statutory minimum will trump the guideline range, requiring a sentence far greater than would otherwise be recommended by the guidelines, or contemplated by the sentencing court. Statutory minimum sentences in three common types of federal prosecutions are discussed below: drugs, firearms, and child-sex offenses. 3
Drug offenses. Commonly used federal drug statutes include minimum penalties for offenses that result in death and serious bodily injury, as well as minimums based on drug amounts and prior drug convictions. For certain drugs in certain quantities, 21 U.S.C. §§ 841(b) and 960(b) provide minimum sentences of 5- or 10-years’ imprisonment. 4
3 Minimum sentences are also required for the com-
mon offenses of bringing aliens into the United States for commercial gain, 8 U.S.C. § 1324(a)(2)(B)(ii), and aggravated identity theft, 18 U.S.C. § 1028A. 4 For crack cocaine cases, these quantity-based mini-
mums were-substantially lowered by the Fair Sentencing Act of 2010, Pub. L. No. 111-220 (eff. Aug. 3, 2010). In 2018, the President signed into law the First Step Act, which allowed defendants who were sentenced before the Fair Sentencing Act to seek sentence reductions as if the lower minimums had been in effect when An Introduction to Federal Sentencing
The minimum and maximum terms can increase if a defendant was previously convicted of a “serious drug felony” or “serious violent felony,” which are defined terms. 21 U.S.C. § 802(57), (58). The prior conviction need not be alleged in the indictment or proved at trial; however, the government must follow special notice and hearing procedures prescribed in 21 U.S.C. § 851. 5
Firearms offenses. Title 18 U.S.C. § 924, which sets out the penalties for most federal firearmpossession offenses, includes two subsections that require significant minimum prison sentences. One is § 924(c), which punishes firearm possession during a drug-trafficking or violent crime. It provides graduated minimum sentences, starting at 5 years and increasing to life imprisonment, depending on the type of firearm, how it was employed, and whether the defendant has a prior § 924(c) conviction. A § 924(c) charge is often, though not always, accompanied by a charge on the underlying substantive offense. In any event, a sentence imposed under § 924(c) must run consecutively to any other sentence. Previously, this meant a defendant convicted of two § 924(c) violations in a single proceeding faced a 25-year minimum sentence for the second violation. See Deal v. United States, 508 U.S. 129, 132–33 (1993). However, in 2018, Congress changed the law so that the 25-year minimum is triggered only by a second § 924(c) violation committed “after a prior § 924(c) conviction “has become final.” See United States v. Davis, 139 S. Ct. 2319, 2324 n.1 they committed their offenses. Pub. L. No. 115-391, 132 Stat. 5194 (2018). 5 Because the enhancements to which § 851 applies are
based on prior convictions, the Sixth Amendment requirement of jury findings is inapplicable. See, e.g., United States v. Mason, 628 F.3d 123, 133–34 (4th Cir. 2010); United States v. Marsh, 561 F.3d 81, 85 (1st Cir. 2009); see generally Almendarez-Torres v. United States, 523 U.S. 224 (1998).
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(2019) (cleaned up); § 924(c)(1)(C). The court may take this into account when imposing a sentence on a predicate non-924(c) count. Dean v. United States, 137 S. Ct. 1170, 1176–78 (2017).
§ 924(e)(2). The definitions are complex and are frequently the subject of Supreme Court litigation. 8
The other firearm mandatory minimum is found in 18 U.S.C. § 924(e), the Armed Career Criminal Act (ACCA). This statute prescribes a significantly enhanced penalty for certain defendants convicted of unlawful firearm possession under § 922(g). A defendant convicted under § 922(g) normally faces a maximum term of 15 years’ imprisonment. 6 Section 924(e)(1) increases this punishment range, to a minimum of 15 years and a maximum of life, if a defendant has three prior convictions for violent felonies or serious drug offenses. Unlike the drug laws, however, § 924(e) requires no pretrial notice for an enhanced sentence to be imposed. 7 “Violent felony” and “serious drug offense” are defined by statute.
mum penalties for sex trafficking and child-sex offenses are among the most severe in the federal system. 9 While simple possession of child pornography does not carry a mandatory minimum sentence, receipt, sale, and distribution do. 10 The distinctions between these offenses can be hard to discern when, as is typical, the offense involves digital images of child pornography obtained from the internet.
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Johnson to the identical “crime of violence” definition in guideline §4B1.2, holding that, because the Sentencing Guidelines are advisory, they are not susceptible to constitutional vagueness challenges. Beckles v. United States, 580 U.S. 256 (2017).
In 2022, the maximum term of imprisonment for § 922(g) offenses increased from 10 to 15 years. See 18 U.S.C. § 924(a)(8); Pub. L. 117-159, Div. A, Title II, § 12004(c), 136 Stat. 1329 (June 25, 2022).
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The Supreme Court’s recent decision in Wooden v. United States, 142 S. Ct. 1063 (2022), raises the question whether § 924(e)’s requirement that the prior offenses were “committed on occasions different from one another,” must be alleged in the indictment and proved to the jury beyond a reasonable doubt. See Wooden, 142 S. Ct. at 1087 n.7 (Gorsuch, J., concurring).
8 See,
e.g., Shular v. United States, 140 S. Ct. 779 (2020) (applying definition of “serious drug offense” in § 924(e)(2)(A)); Stokeling v. United States, 139 S. Ct. 544 (2019) (applying definition of “violent felony” in § 924(e)(2)(B)(i)); Quarles v. United States, 139 S. Ct. 1872 (2019) (same, § 924(e)(2)(B)(ii)); United States v. Stitt, 139 S. Ct. 399 (2018) (same, § 924(e)(2)(B)(ii)). In Johnson v. United States, 576 U.S. 591 (2015), the Supreme Court held that the “residual clause” in § 924(e)’s “violent felony” definition is unconstitutionally vague. The Court later extended this holding to the similar residual clauses in § 924(c)(3)(B) and 18 U.S.C. § 16(b). United States v. Davis, 139 S. Ct. 2319 (2019); Sessions v. Dimaya, 138 S. Ct. 1204 (2018). But the Court refused to extend
An Introduction to Federal Sentencing
Child and sex offenses. The mandatory mini-
In addition to these offense-specific minimum penalties, federal law also establishes minimum penalties ranging from 10 years to life imprisonment for repeat sex crimes and crimes of violence
9 See, e.g., 18 U.S.C. § 1591(b) (for sex trafficking, 10 or
15-year minimum, depending on presence of force or age of victim); § 2241(c) (for aggravated sexual abuse, 30-year minimum, or life if defendant has previously been convicted of similar crime); § 2251(e) (for production of child pornography, 15- to 30-year minimum); § 2252A(g) (for child exploitation, 20-year minimum). Registered sex offenders who commit a federal child-sex offense are subject to an additional conviction and a consecutive 10-year sentence. § 2260A. 10 See
18 U.S.C. § 2252(b)(1) (5-year minimum for transportation, receipt, distribution, reproduction, sale or and possession with intent to sell of child pornography); § 2252A(b)(1) (same, but adding a 5-year minimum for advertising child pornography, promoting it, soliciting it, or offering it to a minor). If the defendant has a prior qualifying offense, the minimums increase to 15 years, and a 10-year minimum applies even to simple possession offenses. 18 U.S.C. §§ 2252(b)(2), 2252A(b)(2).
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against children. See 18 U.S.C. § 3559(e), (f). Section 3559(e) does not require the government to follow notice and hearing procedures to obtain recidivism-based enhancements for these child-victim offenses.
Sentencing below a statutory minimum. Section 3553 can authorize a sentence below a statutory minimum in one of two circumstances: when a defendant cooperates, or when he meets the requirements of a limited drug-offense “safety valve.” For cooperating defendants, the court may impose a sentence below a statutory minimum “so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” § 3553(e). A sentence can be imposed below the mandatory minimum only upon motion of the government. Id.; cf. FED. R. CRIM. P. 35(b) (setting out rules for postsentence reduction based on government cooperation motion). Sentencing Commission policy statement §5K1.1, discussed in more detail below, sets out the factors to be considered when the court imposes sentence based on a government substantial-assistance motion. The “safety valve” statute, 18 U.S.C. § 3553(f), removes the statutory minimum for certain drug crimes. To qualify, the crimes cannot have resulted in death or serious injury, and the court must find that the defendant does not have more than a certain number of criminal history points under the Guidelines, was not violent, armed, or a high-level participant, and provided the government with truthful, complete information regarding the offense of conviction and related conduct. Unlike § 3553(e), the § 3553(f) “safety valve” does not require a government motion, but the government must be allowed to make a recommendation 11
Pub. L. No. 115-391, 132 Stat. 5194.
12 In fiscal year 2022, straight probation was imposed
in only 5.8 percent of federal cases. See U.S. Sentencing An Introduction to Federal Sentencing
to the court. The Sentencing Commission has adopted a proposed amendment to the safetyvalve guideline, USSG §5C1.2, incorporating the requirements of § 3553(f) under the First Step Act of 2018. 11 See USSG §5C1.2 (proposed amendment April 5, 2023).
No Parole; Restrictions on Early Release from Prison. Federal prisoners do not receive parole, and they can receive only limited credit to reward satisfactory behavior in prison. “Good time” credit is limited to a maximum of 54 days per year. 18 U.S.C. § 3624(b). No credit is available for life sentences, or sentences of a year or less—this means, paradoxically, that a defendant sentenced to 12 months in prison will usually serve more time than a defendant sentenced to 12 months and a day. In addition to awarding good time, the Bureau of Prisons may reduce the time to be served by as much as a year for a prisoner who completes a substance-abuse treatment program, § 3621(e)(2), and it has authority to place a defendant in community or home confinement near the end of the imprisonment term. § 3624(c), (g).
Probation and Supervised Release. While the Sentencing Reform Act does not allow parole, it does authorize courts to impose nonprison sentences of two types: probation and supervised release.
Probation. Probation is rare in the federal system. 12 It is prohibited by statute (1) for Class A or Class B felonies (offenses carrying maximum terms of 25 years or more); (2) for offenses that expressly preclude probation; and (3) for a defendant who is sentenced at the same time to imprisonment for a nonpetty offense. 18 U.S.C. § 3561(a). Even when probation is statutorily permitted, the guidelines do not recommend straight Comm’n, 2022 Sourcebook of Sentencing Statistics fig. 6 (hereinafter 2022 Sourcebook), available at https://www.ussc.gov. 5
probation unless the bottom of the guideline range is zero. See USSG §5B1.1(a), §5C1.1(b). (Sentencing ranges are discussed below, under Chapter Five of the Guidelines Manual.)
Supervised release. Unlike probation, supervised release is a common punishment, imposed in addition to the sentence of imprisonment. Supervised release is authorized in all cases; it is required for domestic violence offenses, and when the statute for the substantive offense requires it. § 3583(a); see, e.g., 21 U.S.C. § 841. The guidelines generally call for supervised release following any imprisonment sentence longer than one year, see USSG §5D1.1(a)(2); however, they discourage supervised release for noncitizens convicted of being in the United States illegally who are likely to be deported when released from imprisonment, see USSG §5D1.1(c) & comment. (n.5). Under 18 U.S.C. § 3583(b), the maximum authorized supervised-release terms increase with the grade of the offense, from 1 year, to 3 years, to 5 years. 13 Sex offenses, child pornography offenses, and kidnapping offenses involving a minor victim carry a term of 5 years to life. § 3583(k). The specific statute of conviction may also provide for a longer term of supervised release. See, e.g., 21 U.S.C. § 841(b) (authorizing up to life supervised release). Supervised release begins on the day the defendant is released from imprisonment and runs concurrently with any other term of release, probation, or parole. § 3624(e); United States v. Johnson, 529 U.S. 53 (2000).
Conditions, early termination, and revocation. Although federal law mandates several conditions for both probation and supervised release, see 18 U.S.C. §§ 3563(a), 3583(d), the court generally has discretion to impose conditions that are reasonably related to the sentencing factors in
§ 3553(a)(1) and (2). Discretionary conditions must involve “only such deprivations of liberty or property as are reasonably necessary” to achieve legitimate sentencing purposes. §§ 3563(b), 3583(d)(2). The court may also extend probation or supervised release terms or terminate them early. § 3564(c), (d); § 3583(e)(1), (2); see USSG §5D1.2, comment. (n.5) (suggesting early termination for defendants who successfully complete drug or alcohol treatment programs while on supervised release). Probation or supervised release may be revoked upon violation of any condition. Revocation is mandatory for possessing a firearm or a controlled substance, for refusing to comply with drug-testing conditions, or for testing positive for an illegal controlled substance more than three times in the course of a year. §§ 3565(b), 3583(g). There may be an exception from mandatory revocation for failing a drug test, depending on the availability of treatment programs, and the defendant’s participation in them. §§ 3563(e), 3583(d). Upon revocation of probation, the court may impose any sentence under the general sentencing provisions of the Sentencing Reform Act. § 3565(a)(2). Upon revocation of supervised release, the court may imprison the defendant up to the maximum terms established for each class of felony in § 3583(e)(3), even if the listed sentence is longer than the term of supervised release originally imposed. If the court imposes a prison term less than the maximum term of supervised release, it may impose another supervised release term to follow the imprisonment. § 3583(h). For defendants required to register as sex offenders and who commit certain offenses while on release, § 3583(k) mandates revocation and a minimum of 5 years’ imprisonment. § 3583(k). In United States v. Haymond, 139 S. Ct. 2369 (2019), the
13 The guidelines track these provisions in the maxi-
mum terms they call for. USSG §5D1.2. An Introduction to Federal Sentencing
6
Supreme Court found § 3583(k) unconstitutional as applied—because the necessary findings were made by a judge on a preponderance standard, rather than by a jury beyond a reasonable doubt— but declined to decide whether the provision is unconstitutional on its face.
Fines and Restitution. Federal sentencing law authorizes both fines and restitution orders. Fines are imposed in a small percentage of cases. 14 Under the Sentencing Reform Act, the maximum fine is generally $250,000 for a felony, $100,000 for a Class A misdemeanor, and $5,000 for any lesser offense. 18 U.S.C. § 3571(b). A higher maximum fine may be specified in the law setting forth the offense, § 3571(b)(1), and an alternative fine based on gain or loss is possible, § 3571(d). Restitution is permitted for any Title 18 crime and most common drug offenses. 18 U.S.C. § 3663 (a)(1)(A). It can be made a condition of probation or supervised release for nearly any crime. §§ 3563(b)(2), 3583(d). Under § 3663A, restitution is mandatory for crimes of violence, property crimes, and product tampering; it is also mandated for other substantive offenses by statutes elsewhere in Title 18. 15 Federal rules require the probation officer to investigate and report potential restitution to the sentencing court. See FED. R. CRIM. P. 32(c)(1)(B), (d)(2)(D). Restitution may be awarded to victims who were either directly or proximately harmed as the result of an offense. §§ 3663(a)(2), 3663A(a)(2). In limited circumstances, a restitution award may be determined after sentencing. See § 3664(d)(5); see Dolan v.
14 See 2022 Sourcebook, tbl. 16 (6.8 percent). 15 One such statute is 18 U.S.C. § 2259, which mandates
restitution for victims of child exploitation. See generally Paroline v. United States, 572 U.S. 434, 439 (2014) (addressing necessary “causal relationship … between defendant’s conduct and a victim’s losses for
An Introduction to Federal Sentencing
United States, 560 U.S. 604 (2010) (discussing statute). A defendant’s inability to pay restitution, now and in the future, may support restitution payments that are only nominal. §§ 3663(a)(1)(B)(i)(II), 3664(f)(3)(A); cf. USSG §5E1.1(f). Inability to pay may also support a lesser fine, or alternatives such as community service. §5E1.2(e); cf. 18 U.S.C. § 3572(a) (factors to be considered in imposing fine). 16 A defendant who knowingly fails to pay a delinquent fine or restitution may be subject to resentencing, and a defendant who willfully fails to pay may be prosecuted for criminal default. §§ 3614, 3615.
Sentence Correction and Reduction. Generally, a “court may not modify a term of imprisonment once it has been imposed ….” 18 U.S.C. § 3582(c). But there are a few exceptions to this rule. Federal Rule of Criminal Procedure 35(a) allows the court to correct “arithmetical, technical, or other clear error” in the sentence. See also § 3582(c)(1)(B). The rule requires that the court act within 14 calendar days after sentencing. Rule 35(b) authorizes a sentence reduction to reflect a defendant’s post-sentence assistance in the investigation or prosecution of another person who has committed an offense. The rule requires a motion by the Government; with limited exceptions, the motion must be filed within a year after sentencing. Section 3582 authorizes a sentence reduction for certain defendants who have served 30 years of a
purposes of determining the right to, and the amount of, restitution under § 2559”). 16 The circuits disagree whether the sentencing court is
required to make specific findings of fact regarding a defendant’s ability to pay a fine. See United States v. Bauer, 129 F.3d 962, 965 (7th Cir. 1997) (collecting cases). 7
life sentence under § 3559(c), and for other defendants when the court finds that “extraordinary and compelling reasons” warrant a sentence reduction. § 3582(c)(1)(A). Before the First Step Act, a motion for these reductions had to be filed by the Director of the Bureau of Prisons. The statute now allows a defendant, who has satisfied certain administrative requirements, to file the motion as well. Id. The Sentencing Commission has adopted a proposed amendment to conform policy statement §1B1.13 to this change in § 3582(c)(1)(A). The Commission has also adopted a proposed amendment to expand and clarify what constitutes “extraordinary and compelling reasons.” See USSG §1B1.13, p.s., (proposed amendment April 5, 2023). These amendments will go into effect November 1, 2023, unless Congress disapproves them. The statute also allows the court to reduce a sentence—on motion of the Director, the defendant, or the court’s own motion—when a defendant’s term of imprisonment was “based on” a sentencing range that has been lowered by a subsequent guideline amendment, “if such reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 17 § 3582(c)(2); see USSG §1B1.10, p.s. (The retroactive application of guideline amendments is discussed below, under “Some Traps for the Unwary.”)
permitted by statute ….” § 3582(c)(1)(B). The most recent example of such a statute is § 404 of the First Step Act of 2018. 18 For defendants who were convicted of certain drug offenses before the Fair Sentencing Act of 2010 19—which adjusted the drug amounts necessary to trigger mandatory minimum and increased statutory maximum sentences—§ 404(b) grants courts discretion to “impose a reduced sentence as if” those parts of the Fair Sentencing Act “were in effect at the time the … offense was committed.” 20 A motion for such a reduction can be brought by the defendant, the Director of the BOP, or the Government.
Appellate Review. The Sentencing Reform Act allows both the Government and the defendant to appeal a sentence. Consideration of these appeals was originally controlled by § 3742(e). But because that section contained “critical cross-references” to the mandatory-guideline provisions of § 3553(b), Booker excised it, replacing it with a requirement that sentences be reviewed for “unreasonableness.” 543 U.S. at 260–61 (cleaned up).
Finally, the statute permits a “court [to] modify an imposed term of imprisonment to the extent …
Under the “reasonableness” standard, all sentences—whether inside or outside the guideline range—must be reviewed for abuse of discretion. Gall v. United States, 552 U.S. 38, 39 (2007); Kimbrough v. United States, 552 U.S. 85, 111 (2007). For within-Guidelines sentences, a court of appeals may—but need not—presume the sentence to be reasonable. Rita v. United States, 551 U.S. 338, 347–51 (2007). 21 This contrasts with
17 In the usual case, a sentence that is the product of a
18 Pub. L. No. 115-391, § 404, 132 Stat. 5194.
Rule 11(c)(1)(C) plea agreement is “based on” the Sentencing Guidelines, “absent clear demonstration, based on the record as a whole, that the court would have imposed the same sentence regardless of the Guidelines.” Hughes v. United States, 138 S. Ct. 1765, 1776 (2018). But see Koons v. United States, 138 S. Ct. 1783, 1787–88 (2018) (sentence below mandatory minimum, which was the product of a Government substantial-assistance motion under § 3553(e), was “based on” the mandatory minimum, even though Guidelines range was below the statutory minimum). An Introduction to Federal Sentencing
19 Pub. L. No. 111-220, 124 Stat. 2372. 20
132 Stat. 5222.
circuits do not apply the presumption. See United States v. Van Anh, 523 F.3d 43, 50–60 (1st Cir. 2008); United States v. Rutkoske, 506 F.3d 170, 180 n.5 (2d Cir. 2007); United States v. Hoffecker, 530 F.3d 137, 204 (3d Cir. 2008); United States v. Carty, 520 F.3d 984, 988 (9th Cir. 2008) (en banc); United
21 Some
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proceedings in the district court, where no such presumption is permissible. Id. at 350; see also Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020) (“[R]easonableness is the label we have given to the familiar abuse-of-discretion standard” that applies to appellate review of the trial court’s sentencing decision. The substantive standard that Congress has prescribed for trial courts is the “parsimony principle” enshrined in § 3553(a).”) (cleaned up). Reasonableness review proceeds in two steps. The court of appeals “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51; see also Rita, 551 U.S. at 350, 356–57. If there is no procedural error, the court then considers “the substantive reasonableness of the sentence imposed” under the abuse-of-discretion standard. Gall, 552 U.S. at 51. 22 In practice, reversals for substantive unreasonableness are vanishingly rare. In Fiscal Year 2022, for example, courts of appeals found only 5 sentences to be substantively unreasonable. 23 A procedural challenge is far more likely to succeed, which is not to say that success on that score is
common. Looking again at Fiscal Year 2022, courts of appeals vacated only 428 sentences on procedural reasonableness grounds, out of more than 4,940 appeals presenting a sentencing issue. 24 Over 87 percent of those procedural reversals were because the district court improperly calculated the Guidelines range. 25 While Booker adopted a new standard of review to replace § 3742(e), it did not address the other provisions of § 3742, which govern the right to appeal, the disposition that the appellate court may order, and sentencing on remand. The Court later held that Booker’s reasoning also required invalidation of § 3742(g)(2), which purported to limit sentencing authority on remand. Pepper v. United States, 562 U.S. 476 (2011); see also Booker, 543 U.S. at 307 n.6 (Scalia, J., dissenting) (suggesting that § 3742(f) cannot function once §§ 3553(b)(1) and 3742(e) are excised). Section 3742 includes a provision limiting appellate rights if the parties enter into a plea bargain that sets a specific sentence. § 3742(c); see also FED. R. CRIM. P. 11(c)(1)(C) (describing specific-sentence agreement). (Rule 11(c)(1)(C) and appeal waivers are discussed below, under “Plea Bargaining and Federal Sentencing” and “Some Traps for the Unwary.”)
Victims’ Rights. Title 18 U.S.C. § 3771 provides procedural rights to crime victims in federal courts and mechanisms for enforcing those rights.
States v. Campbell, 491 F.3d 1306, 1313–14 & n.8 (11th Cir. 2007).
612 F.3d 1160, 1212 (11th Cir. 2010) (en banc) (applying “closer review” in child pornography production case).
22 The
23 2022 Sourcebook, tbl. A-6. One judge has observed
Supreme Court has suggested in dicta that “closer” substantive review may be called for when a non-guidelines sentence is based on a general policy disagreement with the Sentencing Commission, rather than an evaluation of the facts of an individual case. See, e.g., Kimbrough, 552 U.S. at 109 (suggesting possibility of “closer review,” but finding no occasion for it in review of policy disagreement with cocaine base guidelines); Spears v. United States, 555 U.S. 261, 264 (2009) (per curiam) (same). Cf. United States v. Irey, An Introduction to Federal Sentencing
that the presumption of reasonableness “is non-binding in theory but nearly ironclad in fact[,]” and bemoaned “the lack of meaningful judicial standards for determining the reasonableness of Guidelines sentences.” United States v. Neba, 901 F.3d 260, 266–67 (5th Cir. 2018) (Jones, J., concurring). 24 2022 Sourcebook, tbl. A-6. 25 Id.
9
The statute generally gives victims the right to have notice of, and to be present at, public court proceedings, and to be “reasonably heard” at a variety of proceedings, including sentencing. § 3771(a)(2), (3), (4). It provides a number of other rights as well, including the right “to full and timely restitution as provided by law.” § 3771(a)(6). The Sentencing Commission has incorporated § 3771 in a policy statement. See USSG §6A1.5, p.s.; cf. FED. R. CRIM. P. 32(i)(4)(B) (victim’s right to be heard at sentencing).
Petty Offenses; Juveniles. By its terms, the Sentencing Reform Act applies to both petty offenses (offenses carrying a maximum term of 6 months or less) and juvenile delinquency cases. But the Act has had little effect on these cases because the Sentencing Commission has chosen not to promulgate separate guidelines for them. See USSG §1B1.9, §1B1.12, p.s. That said, the Supreme Court has read the Juvenile Delinquency Act to require consideration of guidelines for adults in determining the maximum possible term of official detention for juveniles. See United States v. R.L.C., 503 U.S. 291 (1992) (interpreting 18 U.S.C. § 5037(c)).
Statutory Amendments. The Sentencing Reform Act has been amended many times since it was enacted more than 35 years ago. If an amendment is both substantive and detrimental to the defendant, its retroactive application may violate the Ex Post Facto Clause. See Johnson v. United States, 529 U.S. 694, 699–701 (2000) (discussing effect of Ex Post Facto Clause on Act’s amended provisions regarding supervised-release revocation); cf. Lynce v. Mathis, 519 U.S. 433 (1997) (retroactive amendment of state sentencing law violated ex post facto).
The Guidelines Manual The Guidelines Manual comprises eight chapters and three appendices. It contains the Sentencing Commission guidelines, policy statements, and commentary that the statute requires a court to consider when it sentences a defendant. See 18 U.S.C. § 3553(a)(4)(A), (a)(5). The Manual establishes two numerical values for each guidelines case: an offense level and a criminal history category. The two values correspond to the axes of a grid, called the sentencing table; together, they specify a sentencing range for each case. (The sentencing table is appended to this paper.) The Manual provides rules for sentencing within the range, and for departures outside of it. It also states the Commission’s views on Booker. While Booker rendered the guidelines advisory, it did not diminish the importance of understanding the guidelines’ application in a given case. This is not just because the guidelines remain the “starting point and the initial benchmark” for the sentencing decision. Gall, 552 U.S. at 49. Statistics show that, while the percentage of within-Guidelines sentences has markedly decreased since Booker, courts still follow the Guidelines’ recommendations in a significant number of cases. 26 As experienced practitioners know, the guidelines often call for a sentence that is greater than necessary to achieve the purposes of § 3553(a)(2). In other cases, the applicable guideline range can be lower than the sentence a court would otherwise be inclined to impose. Counsel must understand the Guidelines Manual to determine whether its recommendations hurt or help the defendant.
Chapter One: Introduction and General Application Principles. Chapter One introduces the Guidelines and sets out definitions that apply throughout the Guidelines Manual. It also
26 In Fiscal Year 2022, 41.9 percent of sentences were
within the Guidelines range. See 2022 Sourcebook, tbl. An Introduction to Federal Sentencing
29. Another 25.9 percent of sentences were the product of a Guidelines-sanctioned departure. See id. 10
sets the rules for determining the applicable guideline and explains the all-important concept of “relevant conduct.”
Determining the applicable guideline. The applicable guideline section is usually determined by the conduct “charged in the count of the indictment or information of which the defendant was convicted.” USSG §1B1.2(a). If two or more guideline sections appear equally applicable, Chapter One directs the court to use the section that results in the higher offense level. §1B1.1, comment. (n.5). Additionally, if a plea agreement “contain[s] a stipulation that specifically establishes a more serious offense,” the court must consider the guideline applicable to the more serious stipulated offense. §1B1.2(a). For this exception to apply, the stipulation must establish every element of the more serious offense, Braxton v. United States, 500 U.S. 344 (1991), and the parties must “explicitly agree that the factual statement or stipulation is a stipulation for such purposes.” §1B1.2, comment. (n.1).
Relevant conduct. Although the initial choice of guideline section is tied to the offense of conviction, critical guideline determinations are frequently made according to the much broader concept of relevant conduct. See USSG §1B1.3. The Commission developed this concept as part of its effort to create a modified “real offense” sentencing system—a system under which the court punishes the defendant based on its determination of the “real” conduct, not the more limited conduct of which the defendant may have been charged or 27 It is important to note that, although the relevant
conduct rules are generally applicable to guideline determinations, specific language in other provisions of the Guidelines Manual may limit its effect in particular cases. See generally §1B1.3(a) (relevant conduct rules apply “[u]nless otherwise specified”); §1B1.1, comment. (n.1(I)) (term “offense” includes all relevant conduct “unless a different meaning is specified or is otherwise clear from the context”). For example, a particular provision may refer to conduct on the part of “the An Introduction to Federal Sentencing
convicted. See USSG Ch.1, Pt.A, subpt.1(4)(a), p.s. (The Guidelines’ Resolution of Major Issues). The relevant-conduct guideline usually requires sentencing based not only on the conduct comprising the offense of conviction, but on “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused” by the defendant, regardless of whether those acts “occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense[.]” §1B1.3(a)(1). For many offenses, such as drug and fraud crimes, relevant conduct extends even further, to “acts and omissions” that were not part of the offense of conviction but “were part of the same course of conduct or common scheme or plan as the offense of conviction[.]” §1B1.3(a)(2). 27 When others were involved in the offense, §1B1.3 includes their conduct—whether or not a conspiracy is charged—so long as the conduct was (1) “within the scope of the jointly undertaken criminal activity,” (2) “in furtherance of that criminal activity,” and (3) “reasonably foreseeable in connection with that criminal activity[.]” §1B1.3(a)(1)(B). The scope of the jointly undertaken criminal activity is not necessarily the same as the scope of the entire conspiracy, and it may not be the same for each defendant. §1B1.3, comment. (nn.3, 4). Relevant conduct does not include the conduct of others that occurred before
defendant,” rather than conduct that “the offense involved.” See, e.g., §2K2.1(b)(5) & comment (n.13(B)) (limiting liability for firearm-trafficking adjustment to conduct covered by §1B1.3(a)(1)(A), not the broader relevant-conduct rules elsewhere in §1B1.3); §2K2.6(b)(1) & comment. (n.1(A)) (same, use of body armor in connection with another offense); §3C1.1 & comment. (n.9) (same, obstruction of justice).
11
the defendant joined, even if the defendant knew of that conduct. §1B1.3, comment. (n.3(B)). As noted above, relevant conduct need not be included in formal charges. §1B1.3, comment. (backg’d). It can include conduct underlying dismissed, acquitted, or even uncharged counts, provided the sentencing judge finds the conduct was reliably established by a preponderance of the evidence. See United States v. Watts, 519 U.S. 148, 153–54 (1997) (per curiam) (discussing acquitted conduct). Because it allowed increased punishment based on judge-found facts, mandatory relevant-conduct sentencing was challenged on constitutional grounds in Booker. The remedy the Court prescribed did not bar the use of relevant conduct, however—it simply made the resulting guideline range advisory. Despite the ruling in Booker, a constitutional challenge to a judge’s relevant conduct finding may still be possible, if that finding provides the only basis to uphold a sentence as reasonable. (This sort of challenge is briefly described below, under “Validity of Guidelines.”) While the relevant conduct rules affect every stage of representation, they are especially important in the context of plea bargaining. (See discussion of relevant conduct below, under “Plea Bargaining and Federal Sentencing.”)
Guidelines, policy statements, and commentary. The Sentencing Reform Act authorized the Commission to promulgate both sentencing “guidelines,” 28 U.S.C. § 994(a)(1), and “general policy statements regarding application of the guidelines,” § 994(a)(2). The Commission also issues commentary to accompany guidelines and policy statements. USSG §1B1.7. Policy statements and commentary can interpret a guideline
Federal courts of appeals are split on whether the recent Supreme Court decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), altered Stinson’s deferential standard for applying guideline commentary. See United States v. Riccardi, 989
28
An Introduction to Federal Sentencing
or explain how it is to be applied. Id. In such circumstances, failure to follow a policy statement or commentary can result in a misapplication of the guideline. See Stinson v. United States, 508 U.S. 36, 38 (1993) (commentary); 28 Williams v. United States, 503 U.S. 193, 201 (1992) (policy statement). Policy statements and commentary can also “suggest circumstances which, in the view of the Commission, may warrant departure from the guidelines.” §1B1.7 (Policy statements on departures are discussed below, under Chapters Four and Five).
Chapter Two: Offense Conduct. Offense conduct forms the vertical axis of the sentencing table. The offense-conduct guidelines are set out in Chapter Two. The chapter has 17 parts; each part has multiple guidelines, linked to particular statutory offenses. A single guideline may cover one statutory offense, or many. Part X provides the guidelines for certain conspiracies, attempts, and solicitations, as well as for aiding and abetting, accessory after the fact, and misprision of a felony. It also applies when no guideline has been promulgated for an offense. Each Chapter Two guideline provides one or more base offense levels for a particular statutory offense or offenses. In addition, a guideline may include specific offense characteristics that adjust the base level up or down, and it may cross-reference other guidelines that yield a higher offense level. Many of these adjustments are cumulative, and together they can dwarf the initial base offense level. In choosing among multiple base offense levels, determining offense characteristics, and applying cross-references, the court will normally look not just to the charge of conviction, but also to relevant conduct.
F.3d 476 (6th Cir. 2021) (yes); United States v. Nasir, 982 F.3d 144 (3d Cir. 2020) (en banc) (same), vacated on other grounds, 142 S. Ct. 56 (2021); but see United States v. Moses, 23 F.4th 347 (4th Cir. 2022) (no). 12
Although Chapter Two includes guidelines for a multitude of federal offenses, five categories of offenses account for the bulk of federal criminal cases: drugs, economic offenses (such as fraud and theft), child pornography, firearms, and immigration. 29
Drug offenses. In drug and drug-conspiracy cases, the offense level is generally determined by drug type and quantity, as set out in the Drug Quantity Table in guideline §2D1.1(c). The table includes a very wide range of offense levels, from a low of 6 to a high of 38; for defendants who played a mitigating role in the offense, the top four offense levels are reduced by 2 to 4 levels and may be capped at level 32. §2D1.1(a)(5). (See discussion of role in the offense below, under “Chapter Three: Adjustments.”) Unless otherwise specified, drug quantity is determined from “the entire weight of any mixture or substance containing a detectable amount of the controlled substance.” §2D1.1(c) (Drug Quantity Table) note *(A). “Mixture or substance does not include materials that must be separated from the controlled substance before [it] can be used.” §2D1.1, comment. (n.1). When no drugs are seized or “the amount seized does not reflect the scale of the offense,” the court must “approximate the quantity[.]” Id. comment. (n.5). In conspiracy cases, and other cases involving agreements to sell controlled substances, the agreed-upon quantity is used to determine the offense level, unless the completed transaction establishes a different quantity, or the defendant demonstrates that he did not intend to provide or purchase the negotiated amount or was not reasonably capable of do-
29 See 2022 Sourcebook, fig. 2 (five categories account
ing so. Id. Drug purity is not a factor in determining the offense level, with five exceptions: methamphetamine, amphetamine, PCP, hydrocodone, and oxycodone. §2D1.1(c) (Drug Quantity Table) note *(B). For other drugs “unusually high purity may warrant an upward departure” from the guideline range. §2D1.1, comment. (n.27(C)). If the offense involves more than one type of drug, then the court must “convert each of the drugs to its converted drug weight, add the quantities, and look up the total in the Drug Quantity Table to obtain the combined offense level.” Id. comment. (n.8(B)). The drug guidelines include many provisions that raise the offense level for specific aggravating factors, such as the possession of a firearm, §2D1.1(b)(1); the use or threat of violence, (b)(2); and for maintaining premises for the purpose of manufacturing or distributing drugs, (b)(12). Some, but not all, of these adjustments apply cumulatively. The guideline also includes special provisions for defendants who are deemed to have an aggravating or minimal role. §2D1.1(b)(16), (17). Guideline §2D1.1(b)(18) provides a 2-level reduction if the defendant meets the criteria of the safety-valve guideline, §5C1.2. 30
Economic offenses. For many economic offenses (including theft, fraud, and property destruction), the offense level is determined under guideline §2B1.1. The guideline is similar in structure to the drug-offense guideline, in that the offense level is generally driven by an amount—the amount of loss. 31 The guideline commentary broadly defines “loss” as the greater of actual loss or the intended loss, even if the intended loss was “impossible or unlikely to occur[.]” §2B1.1, comment.
for 84.3% of sentenced offenders).
changes. USSG §5C1.2 (proposed amendment April 5, 2023).
30 The First Step Act of 2018 broadened the criteria in
31 Although the loss amounts have been revised over
18 U.S.C. § 3553(f), and the Commission has adopted a proposed amendment to §5C1.2 to conform to those
the years, the Commission has only adjusted them for inflation one time, in 2015. See U.S.S.C. App. C, amend. 791.
An Introduction to Federal Sentencing
13
(n.3(A)(ii)). The number of victims can also trigger an adjustment; however, only actual, not intended victims are counted. §2B1.1(b)(2) & comment. (n.1). The commentary includes extensive notes as to items that are included or excluded from the loss amount, as well as special rules for a variety of particular fraud and theft schemes. §2B1.1, comment. (n.3(A)–(F)). In addition to these adjustments, §2B1.1 includes many other specific offense adjustments that can increase the offense level.
Child pornography. Child pornography offenses represent a rapidly growing area of federal prosecution, one for which the Chapter Two guidelines are particularly severe. Guideline §2G2.2 provides a base offense level of 18 for most child-pornography possession offenses, and a level of 22 for receipt, distribution, and other offenses. The distinctions between possession, receipt and distribution offenses can often be difficult to discern, especially when a case involves pornography obtained from the internet. Yet the characterization of a particular offense can have a tremendous effect on the applicable offense level: mere receipt can provide a reduction of 2 levels, whereas distribution can increase the offense level by as many as 7 levels. §2G2.2(b)(1), (b)(3). Use of a computer automatically increases the offense level by 2, §2G2.2(b)(6), and other increases apply depending on the number of images, or the type of pornography portrayed. Because it produces high offense levels even for first-time offenders, §2G2.2 has encountered resistance from sentencing courts around the country, and child-pornography defendants receive sentences below the Guidelines range in almost two-thirds of cases. 32 32 See 2022 Sourcebook, tbl. 31 (courts sentence below
Guidelines range in over 65% of child pornography cases). 33 Note that exportation charges under 18 U.S.C. § 554
can trigger an even higher guideline range. See USSG §2M5.2(a)(1). An Introduction to Federal Sentencing
Firearms offenses. Chapter Two, Part K covers a wide variety of federal firearms offenses; the most common are charges arising from the purchase or possession of firearms or ammunition. For these offenses, guideline §2K2.1 provides a series of base offense levels, with higher levels depending on the statute of conviction, the type of firearm possessed, the criminal history of the defendant, and other factors. The guideline also includes a variety of other specific offense adjustments that can increase the offense level further. One potential adjustment reduces the guideline range: if the defendant, in certain circumstances, possessed the firearm “solely for lawful sporting purposes or collection.” §2K2.1(b)(2). Federal firearm-possession offenses often arise in connection with other criminal conduct. In these cases, specific guideline provisions produce higher sentencing ranges “if the firearm or ammunition facilitated, or had the potential of facilitating,” another offense. §2K2.1, comment. (n.14(A)). If the defendant exported a firearm, or possessed or used it in connection with another felony offense, guideline §2K2.1(b)(6) provides a 4-level increase and an alternative minimum offense level of 18. 33 A further increase is possible under §2K2.1(c)(1), which cross-references other Chapter Two provisions applicable to the underlying conduct. These guidelines base their increases on relevant conduct, “regardless of whether [another] criminal charge was brought, or a conviction obtained.” §2K2.1, comment. (n.14(C)). Consequently, a defendant’s guideline range may be determined (and dramatically increased) by the uncharged underlying offense, rather than the charged firearm offense. 34 Note an 34 See, e.g., United
States v. Wright, 594 F.3d 259, 267–68 (4th Cir. 2010) (court uses cross-reference to apply first-degree murder guideline); United States v. Hicks, 389 F.3d 514, 528–31 (5th Cir. 2004) (cross-reference to second degree murder).
14
important limitation: the cross-reference applies only if the other offense involved “the particular firearm or firearms cited in the [instant] offense of conviction.” App. C, amend. 784 (Reason for Amendment); see §2K2.1, comment. (nn.14(A), (E)).
Immigration offenses. Immigration offenses make up one of the largest categories of offenses being sentenced in federal court—almost 30 percent of cases in FY 2022. 35 Most common immigration offenses come under one of two guidelines, §2L1.1 and §2L1.2. Guideline §2L1.1 covers smuggling, transporting, and harboring noncitizens illegally in the United States. It sets out many specific offense adjustments, including increases for the number of noncitizens involved, the possession or use of weapons, reckless conduct, threats, coercion, and injury or death. See §2L1.1(b). 36 One offense characteristic reduces the guideline range; it applies, with certain limitations, when the offense involved the smuggling, transporting, or harboring of the defendant’s spouse or child. §2L1.1(b)(1). Guideline §2L1.2 covers the offense of unlawfully entering or remaining in the United States after a prior removal. The guideline gives little weight to the actual offense conduct—the illegal reentry— assigning a base offense level of just 8. §2L1.2(a). Instead, the defendant’s criminal history is the main driver of the offense level calculation. §2L1.2(b). For years, subsection (b) provided for enhancements based on the nature of a defendant’s prior convictions (e.g., “crime of violence,” “drug trafficking offense,” “aggravated felony”), their age, and sentence length. See §2L1.2(b)(1) (Nov. 2015). The enhancement scheme spawned a tremendous amount of litigation over whether a prior conviction qualified for a particular enhancement, most of it involving the “categorial 35 See 2022 Sourcebook, fig. 2. Drug offenses are the
largest category at 31.5%. Id.
An Introduction to Federal Sentencing
approach” to making that determination. See App. C, amend. 802 (Reason for Amendment). In 2016, after a multi-year study, the Commission completely revamped subsection (b)’s enhancement scheme. It still consists of enhancements for prior convictions, but now the number and extent of the enhancements turn primarily on the length of the sentences for prior convictions. A defendant can receive separate enhancements for offenses committed before and after his first removal order, and for prior illegal reentries. Unlike the pre2016 enhancement scheme, prior convictions trigger enhancements only if they receive criminal history points under Chapter 4. §2L1.2, comment. (n.3). That said, if the resulting offense level substantially overstates or understates the seriousness of a prior conviction, perhaps because the conviction is too old to receive criminal history points, the guideline encourages a departure. §2L1.2, comment. (n.6). It also encourages downward departures for illegal reentry defendants who have assimilated into U.S. culture. Id., comment. (n.8).
Chapter Three: Adjustments. Chapter Three sets out general offense-level adjustments that apply in addition to the offense-specific adjustments of Chapter Two. Some of these adjustments relate to the offense conduct, including victim-related adjustments, adjustments for hate crimes or terrorism, adjustments for the defendant’s role in the offense, and adjustments for the defendant’s use of position, of special skills, or of minors. Other Chapter Three adjustments relate to post-offense conduct, such as flight from authorities, obstruction of justice, and acceptance of responsibility for the offense. Chapter Three also provides the rules for determining the guideline range when the defendant is convicted of multiple counts.
36 When
death results from a smuggling offense, a cross-reference can apply to increase the offense level even further. §2L1.1(c)(1). 15
Role in the offense. In any offense committed by
Obstruction. A defendant who willfully ob-
more than one participant, a defendant may receive an upward adjustment for having an aggravating role, or a downward adjustment for a mitigating one. See USSG Ch.3, Pt.B, intro. comment. Aggravating-role adjustments range from 2 to 4 levels, depending on the defendant’s supervisory status and the number of participants in the offense. §3B1.1. Mitigating-role adjustments likewise range from 2 to 4 levels, depending on whether the defendant’s role is characterized as minor, minimal, or somewhere in between. §3B1.2. The characterization of a defendant’s role is based on all relevant conduct, not just the offense of conviction. Accordingly, even when the defendant is the only person charged in the indictment, he may receive a downward adjustment (or face an upward enhancement) if more than one person participated. It is important to remember that a defendant may receive a mitigating-role reduction even if he is not held accountable for the relevant conduct of others. §3B1.2, comment. (n.3(A)).
structed the administration of justice will receive a 2-level upward guideline adjustment. §3C1.1. Obstruction of justice can occur during the investigation, prosecution, or sentencing of the offense of conviction, of relevant conduct, or of a closely related offense. In some instances, even pre-investigation conduct can qualify. Id., comment. (n.1).
A 2015 study found “that mitigating role is applied inconsistently and more sparingly than the Commission intended.” See App. C, amend. 794 (Reason for Amendment). In response, the Commission amended §3B1.2’s commentary to resolve a circuit split over how to assess a defendant’s conduct relative to other participants in the offense, reject the approach of some circuits that disqualified a defendant who was “indispensable” or “integral” to the offense from receiving the adjustment, clarify the interaction between §3B1.2 and relevant conduct principles, and provide a nonexclusive list of factors for courts to consider when applying the adjustment. See id.; §3B1.2, comment. (nn.3–5).
37 To support an obstruction adjustment based on per-
jury at trial, the court must “make independent findings necessary to establish a willful impediment to or obstruction of justice,” or an attempt to do so, within An Introduction to Federal Sentencing
Conduct warranting the obstruction adjustment includes committing or suborning perjury, 37 threatening witnesses or victims, destroying or concealing material evidence, or providing materially false information to a judge, probation officer, or law enforcement officer. §3C1.1, comment. (n.4). Some uncooperative behavior or misleading information, such as lying about drug use while on pretrial release, ordinarily does not justify an upward adjustment. Id. comment. (n.5). While fleeing from arrest does not ordinarily count as obstruction, id., comment. (n.5(d)), reckless endangerment of another during flight will support a separate upward adjustment under §3C1.2.
Multiple counts. When a defendant has been convicted of more than one count (in the same charging instrument or separate instruments consolidated for sentencing), the multiple-count guidelines of Chapter Three, Part D must be applied. These guidelines produce a single offense level by grouping counts together, assigning an offense level to the group, and, if there is more than one group, combining offense levels for the groups, usually to increase the guideline range. The guidelines group counts together when they involve “substantially the same harm,” §3D1.2, unless a statute requires imposition of a consecutive sentence. §3D1.1(b); see also §5G1.2(a). If the the meaning of the federal perjury statute. United States v. Dunnigan, 507 U.S. 87, 95 (1993).
16
offense level is based on aggregate harm (such as the amount of loss or the weight of drugs), the level for the group is determined by the aggregate for all the counts combined. §3D1.3(b). Otherwise, the offense level for the group is the level for the most serious offense. §3D1.3(a). When there is more than one group of counts, §3D1.4 establishes a combined offense level which can be up to 5 levels higher than the level of any one group. Even when a defendant pleads guilty to a single count, a multiple-count adjustment may increase the offense level if the plea agreement stipulates to an additional offense, or if the conviction is for conspiracy to commit more than one offense. §1B1.2(c)–(d) & comment. (n.4). (Like relevant conduct, grouping rules can be especially important during plea negotiations. See discussion below, under “Plea Bargaining and Federal Sentencing.”)
Acceptance of responsibility. Chapter Three, Part E provides a downward adjustment of 2 or, in certain cases, 3 offense levels for acceptance of responsibility by the defendant. To qualify for the 2-level reduction, a defendant must “clearly demonstrate[ ] acceptance of responsibility for his offense.” §3E1.1(a); see id., comment. (n.1) (providing nonexclusive list of factors to consider). Pleading guilty provides “significant evidence” of acceptance of responsibility but does not automatically qualify a defendant for the reduction. §3E1.1, comment. (n.3). On the other hand, a defendant is not “automatically preclude[d]” from receiving the adjustment by going to trial—for example, when a defendant goes to trial to preserve a Fourth Amendment claim or other constitutional issues “that do not relate to factual guilt.” Id., comment. (n.2). A defendant
38 In contrast, for a reduced drug sentence under the
“safety valve” statute and guideline, the defendant must provide the government all information concerning not only the offense, but also “offenses that were An Introduction to Federal Sentencing
who received an upward adjustment for obstruction under §3C1.1 is not ordinarily entitled to a downward adjustment for acceptance of responsibility. See §3E1.1, comment. (n.4). The court’s determination of acceptance of responsibility “is entitled to great deference on review.” Id., comment. (n.5). Commentary explains that the adjustment for acceptance of responsibility is to be determined by reference to the offense of conviction; the defendant need not admit relevant conduct. 38 Nevertheless, while “[a] defendant may remain silent” about relevant conduct, “a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.” §3E1.1, comment. (n.1(A)). Still, a goodfaith challenge to relevant conduct does not bar a defendant from receiving the adjustment: “[T]he fact that a defendant’s challenge is unsuccessful does not necessarily establish that it was either a false denial or frivolous.” Id.; see App. C, amend. 810 (Reason for Amendment). Defendants qualifying for the 2-level reduction receive a third level off if the offense level is 16 or greater and the government files a motion stating that the defendant has timely notified authorities of his intention to plead guilty. §3E1.1(b). (The adjustment for acceptance is discussed more fully below, under “Plea Bargaining and Federal Sentencing.”) If the court agrees that these circumstances exist, it “should grant the motion.” Id., comment. (n.6). “The government should not withhold such a motion based on interests not identified in §3E1.1, such as whether the defendant agrees to waive his or her right to appeal.” Id. The Sentencing Commission has adopted a proposed amendment to clarify that the government part of the same course of conduct or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5); see also USSG §5C1.2(a)(5) (same).
17
should not withhold the motion for reasons other than having to prepare for trial. See USSG §3E1.1 (proposed amendment April 5, 2023) (to resolve circuit split on whether government can withhold third level for motion to suppress or sentencing hearing).
Chapter Four: Criminal History. Criminal history forms the horizontal axis of the sentencing table. The table divides criminal history into six categories, from I (the lowest) to VI (the highest). USSG Ch.5, Pt.A (Sentencing Table). The guidelines in Chapter Four, Part A, translate the defendant’s prior record into one of these categories by assigning points for prior sentences and juvenile adjudications. The number of points scored for a prior sentence is based primarily on the length of the sentence. USSG §4A1.1. Although two points currently are added for committing the instant offense while under any form of criminal justice sentence, §4A1.1(d), the Sentencing Commission has adopted a proposed amendment to eliminate these status points in most cases. See USSG §4A1.1(e) (proposed amendment April 5, 2023) (newly designated §4A1.1(e)). A prior sentence is not counted in the criminal history score if it was sustained for conduct that was part of the instant offense, including relevant conduct. See §4A1.2(a)(1). Other criminal sentences or juvenile adjudications are not counted because of staleness, their minor nature, or other reasons, such as constitutional invalidity. §4A1.2(c)–(j). 39 Sentences imposed on the same
day, or imposed for offenses that were charged together, are treated as one sentence, unless the offenses were separated by an intervening arrest. §4A1.2(a)(2). 40 The Sentencing Commission has adopted a proposed amendment creating a new guideline that provides a two offense-level reduction for “zero-point offenders,” who meet certain criteria. See USSG §4C1.1 (proposed amendment April 5, 2023).
Criminal history departure. Policy statement §4A1.3 authorizes a departure from the guideline range when a defendant’s criminal history category does not adequately reflect the seriousness of past criminal conduct or the likelihood that the defendant will commit other crimes. This policy statement may support either a downward or an upward departure; however, it does not authorize departures below criminal history category I, and it provides special rules for calculating departures above category VI. §4A1.3(a)(4)(B), (b)(2). (For the rules governing other departures, see discussion in Chapter Five below).
Repeat offenders. For certain repeat offenders, Chapter Four, Part B significantly enhances criminal history scores and offense levels. These offenders fall in three classes: career offenders, armed career criminals, and repeat child-sex offenders.
Career offender. The “career offender” guideline, §4B1.1, applies to a defendant convicted of a third crime of violence or controlled substance offense. Guideline §4B1.1 automatically places the defendant in the highest criminal history category, VI,
39 The guidelines, however, “do not confer upon the de-
40 Certain crimes of violence count separately for crim-
fendant any right to attack collaterally a prior conviction or sentence beyond any such rights otherwise recognized in law.” §4A1.2, comment. (n.6). See Custis v. United States, 511 U.S. 485 (1994) (with sole exception of convictions obtained in violation of the right to counsel, defendant in federal sentencing proceeding has no constitutional right to collaterally attack validity of prior state convictions).
inal history points even if they would otherwise be treated as one sentence under §4A1.2(a)(2). See §4A1.1(e). In addition, §4A1.2 includes a special upward-departure provision to deal with underrepresentative criminal history resulting from multiple cases charged or sentenced at the same time. See §4A1.2, comment. (n.3(B)).
An Introduction to Federal Sentencing
18
and it simultaneously increases the offense level to produce a guideline range approximating the statutory maximum for the offense of conviction. “Crime of violence” and “controlled substance offense” are defined, for career-offender purposes, in §4B1.2; those definitions can apply in Chapter Two guidelines as well. See, e.g., §2K2.1(a) & comment. (n.1) (firearms offenses). In determining whether prior convictions qualify as career-offender predicates, the general rules for computing criminal history apply. §4B1.2, comment. (n.3). Accordingly, questions of remoteness, invalidity, and separate counting of prior convictions may be of utmost importance.
Armed career criminal. Guideline §4B1.4 applies to a defendant convicted under the Armed Career Criminal Act, 18 U.S.C. § 924(e); it frequently produces a guideline range above that statute’s mandatory minimum 15-year term. Like the career offender guideline, the armed career criminal guideline operates on both axes of the sentencing table. Unlike the career offender guideline, however, §4B1.4 is not limited by guideline §4A1.2’s time periods for counting prior sentences. §4B1.4, comment. (n.1). This means that remote convictions may qualify under §4B1.4 even if they do not otherwise count as criminal history. An armed career criminal is not automatically placed in criminal history category VI but cannot receive a score below category IV. §4B1.4(c).
Repeat child sex offender. For repeat child-sex offenders, guideline §4B1.5 works in concert with the career offender guideline to provide for long imprisonment terms. The guideline sets the minimum criminal history category at V, and it reaches more defendants than §4B1.2, applying career offender offense levels to a defendant even if he has only one prior qualifying offense. §4B1.5(a)(1). Even a defendant without any prior child-sex convictions may be subject to a significant offense level increase, if the court finds that he “engaged
An Introduction to Federal Sentencing
in a pattern of activity involving prohibited sexual conduct.” §4B1.5(b). While §4B1.5 covers a broad range of child-sex offenses, it does not apply to trafficking, receiving, or possessing child pornography. §4B1.5, comment. (n.2). However, a similar provision in Chapter Two can provide a 5-level increase at sentencing for child pornography offenses. §2G2.2(b)(5) & comment. (n.1).
Chapter Five: Determining the Sentence; Departures. Chapter Five includes guidelines on imposing imprisonment, probation, fines, restitution, and supervised release. It sets out the sentencing table of applicable guideline imprisonment ranges, sentencing options under the guidelines, and the Commission’s policy statements regarding departures from the guideline range.
The Sentencing Table. The sentencing table in Chapter 5, Part A (appended) is a grid of sentencing ranges produced by the intersection of offense levels and criminal history categories. Most ranges are expressed in months, although some recommend life imprisonment. The sentencing table’s grid is divided into four “zones,” A through D. If a defendant’s sentencing range is in Zone A, a guideline sentence of straight probation is available (all the ranges in Zone A are 0 to 6 months). §5B1.1(a)(1), §5C1.1(b). In Zone B or C, the guidelines allow for a “split” sentence (probation or supervised release conditioned upon some form of confinement). §5B1.1(a)(2), §5C1.1(c) §5C1.1(d). For ranges in Zone D, the guidelines call for imprisonment. §5C1.1(f). Guideline §5G1.1 explains the interplay between the guideline ranges in the sentencing table and the penalty ranges set by statute. A sentence may be fixed at any point within the guideline range, so long as the sentence is within statutory limits. See §5G1.1(c). When the entire range is above the statutory maximum, the statutory maximum becomes the guideline sentence. §5G1.1(a). Conversely, the statutory minimum becomes the 19
guideline sentence if the entire range is below the minimum. §5G1.1(b). Guidelines §5G1.2 and §5G1.3 set out rules for sentencing a defendant who is convicted on multiple counts or who is subject to an undischarged prison term. In certain circumstances, these rules can call for partially or fully consecutive sentences. See, e.g., §5G1.2(d), §5G1.3(a). See also 18 U.S.C. § 3584 (setting out court’s statutory authority to impose consecutive or concurrent sentences); Setser v. United States, 566 U.S. 231 (2012) (under § 3584, court has discretion to order federal sentence to run consecutively to anticipated, but not yet imposed, state sentence). 41
sentencing outside the Guidelines range rely far more often on the factors in § 3553(a) than on the departure grounds listed in Chapter Five. 42 Despite the increase in non-guideline sentences, however, the Chapter Five policy statements on departures can have an important effect on the sentence in some cases. 43
Commission’s policies on the factors that may be considered in departing from, or fixing a sentence within, the guideline range. Before Booker excised 18 U.S.C. § 3553(b)(1) from the Sentencing Reform Act, these parts strictly limited the court’s authority to sentence outside the guideline range; departures were available only when a case presented an aggravating or mitigating circumstance “of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” See §5K2.0(a)(1) & (b)(2), p.s. Now, with the exception of special government-sponsored downward departures, courts
Part H states the Commission’s policy that many important offender characteristics, including education and vocational skills, employment record, family ties and responsibilities, and community ties, are “not ordinarily relevant” in determining the propriety of a departure. USSG Ch.5, Pt.H, intro. comment. Other characteristics—age, mental and emotional conditions, physical condition, and military service—may be grounds for departure if “individually or in combination with other [offender] characteristics” they are “present to an unusual degree and distinguish[ ] the case from the typical cases covered by the guidelines.” Id. The operative words in these policy statements are “ordinarily” and “typical”—in exceptional or atypical cases, one or more of the identified characteristics may support a departure. Even in the typical case, these characteristics may be relevant for courts deciding where to sentence within the guideline range, or whether to impose a sentence outside the range under Booker and § 3553(a).
41 Setser suggested that the same may not hold true for
43 In addition to the policy statements in Chapter Five,
an anticipated federal sentence but did not resolve that question. Courts of appeals have since held that a district court may not order a federal sentence to run consecutively to an anticipated, but not yet imposed, federal sentence. See, e.g., United States v. Ramon, 958 F.3d 919, 922–23 (10th Cir. 2020).
a number of Chapter Two guidelines have commentary suggesting grounds for departure from the prescribed offense level. See, e.g., USSG §2B1.1, comment. (n.21) (encouraging upward or downward departures for some economic offenses); §2D1.1, comment. (n.27) (downward departure in certain reverse-sting drug cases, and upward departure for drug quantity, purity, or potency); §2K2.1, comment. (n.11) (upward departure for number or type of firearms or ammunition, or particularly dangerous firearms offenses); §5D1.1, comment. (n.1) (depart and not impose supervised release when not required and not necessary).
Departures. Together, Parts H and K set out the
42 See
2022 Sourcebook, tbl. 29 (excepting government-sponsored downward departures and variances, courts departed below the guideline range in 2.4% of all cases (1,504 sentences) and varied downward in 20.2% of cases (12,930 sentences)). Sentences above the guideline range are also more likely to be based on § 3553(a) considerations (2.3% of cases) than on departure grounds (0.6% of cases). Id. An Introduction to Federal Sentencing
20
Part H sets out Commission policy that certain characteristics cannot support a departure. In accordance with congressional directive, the Commission provides that certain characteristics are never relevant to the determination of the sentence: race, sex, national origin, creed, religion, and socio-economic status. See § 5H1.10, p.s.; cf. 28 U.S.C. § 994(d). After Booker, characteristics limited or prohibited from consideration by the Guidelines Manual may nevertheless be relevant to sentencing under § 3553(a). 44
offenses). Other circumstances, by contrast, are specifically identified as potential grounds for departure, usually upward. Six listed circumstances may support a downward departure: (1) victim’s wrongful provocation, (2) commission of a crime to avoid a perceived greater harm, (3) coercion and duress, (4) diminished capacity, (5) voluntary disclosure of the offense, and (6) aberrant behavior. For child and sex offenses, the grounds supporting downward departure are far more limited. See §5K2.0(b), p.s.; §5K2.22, p.s.
Part K authorizes a downward departure on the government’s motion if the defendant “has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.” §5K1.1, p.s.; cf. 18 U.S.C. § 3553(e). (Cooperation is discussed below, under “Plea Bargaining and the Federal Sentencing.”)
Policy statement §5K3.1 allows departures of up to 4 levels, pursuant to a government-authorized early disposition program. (Such “fast-track” programs are discussed below, under “Plea Bargaining and Federal Sentencing.”)
For departures on grounds other than cooperation, policy statement §5K2.0 states general principles and provides special rules for downward departures in child and sex offenses. Generally, a departure may be warranted when a case presents a circumstance that the Commission has identified as a potential departure ground. However, in an “exceptional” case, departure may be warranted based on a circumstance the Commission has not identified, a circumstance it considers “not ordinarily relevant” under Part H, or a circumstance that, although taken into account in determining the guideline range, is present to an exceptional degree. §5K2.0(a)(2)–(4). Like Part H, Part 5K contains the Commission’s prohibition of certain circumstances as departure grounds. See, e.g., §5K2.12, p.s. (financial difficulties), §5K2.13, p.s. (diminished capacity in violent 44 See, e.g., Gall, 552 U.S. at 55–59 (approving consid-
eration of defendant’s youth, immaturity, and drug addiction in sentencing below guideline range); see generally United States v. Smith, 445 F.3d 1, 4–5 (1st Cir. 2006) (when weighing § 3553(a) factor, it is not decisive that Commission has discouraged or prohibited it An Introduction to Federal Sentencing
Even with advisory guidelines, an important part of sentencing advocacy on behalf of the defendant can be resisting an upward departure or seeking a downward departure. At times, it may be advisable to raise a ground for departure also as a basis for a variance under § 3553(a). That is so because, even after Booker, courts of appeals have held they lack jurisdiction to review the denial of a downward departure unless the district court mistakenly believed it did not have the authority to depart. See, e.g., United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006); United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008; United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006).
Chapter Six: Sentencing Procedures and Plea Agreements. Chapter Six sets out policy statements for preparing and disclosing the presentence report, for resolving disputed sentencing issues, and for considering plea agreements and stipulations. These policies generally from consideration); see, e.g., United States v. Pinson, 542 F.3d 822, 838–39 (10th Cir. 2008) (courts have wide discretion to rely on discouraged factors).
21
track the provisions regarding plea bargains and sentencing procedures in Federal Rules of Criminal Procedure 11 and 32. (The applicable procedures are also discussed below, under “The Guidelines and Sentencing Advocacy” and “Plea Bargaining and Federal Sentencing.”)
The presentence report; dispute resolution. The policy statements of Chapter Six provide for the preparation of a presentence report in most cases, with written objections to the report submitted in advance of the sentencing hearing. §6A1.1, p.s.; §6A1.2. p.s., comment. (backg’d); cf. FED. R. CRIM. P. 32(c)(1), (d), (f)(1), (i)(1)(D) (requiring written report and timely written objections in most cases). Rule 32 requires that the report discuss both Guidelines-related facts and other information that the court requires, including information relevant to the sentencing factors in § 3553(a). FED. R. CRIM. P. 32(d)(1), (d)(2)(F). (Presentence reports are further discussed below, under “Some Traps for the Unwary”). The Commission recognizes that, because of the impact discrete factual determinations have on the guideline range, “[r]eliable fact-finding is essential to procedural due process and to the accuracy and uniformity of sentencing.” USSG Ch.6, Pt.A, intro. comment. Yet Chapter Six, like the Sentencing Reform Act and the rules of evidence, places no limit on the kinds of information to be used in resolving sentencing disputes. The court may consider any information that “has sufficient indicia of reliability to support its probable accuracy.” §6A1.3(a), p.s.; cf. 18 U.S.C. § 3661 (declaring “[n]o limitation” on the information about the defendant that may be considered by the sentencing court); FED. R. EVID. 1101(d)(3) (rules of evi-
45 Compare United States v. Staten, 466 F.3d 708, 718
(9th Cir. 2006) (clear and convincing standard required), with United States v. Fisher, 502 F.3d 293, 307 (3d Cir. 2007) (rejecting Staten); see also United States v. Olsen, 519 F.3d 1096, 1105 (10th Cir. 2008) An Introduction to Federal Sentencing
dence inapplicable to sentencing). Unreliable allegations may not be considered, however, and out-of-court declarations by an unidentified informant may be considered only when there is good cause for anonymity, and the declarations are sufficiently corroborated. §6A1.3, p.s., comment. para. 2. The commentary to policy statement §6A1.3 leaves to the court’s discretion the degree of formality necessary to resolve sentencing disputes. It recognizes that, while “[w]ritten statements of counsel or affidavits of witnesses” may often provide an adequate basis for sentencing findings, “[a]n evidentiary hearing may sometimes be the only reliable way to resolve disputed issues.” §6A1.3, p.s., comment. para. 1. The Commission suggests that the standard of proof for sentencing factors is a preponderance of the evidence. §6A1.3, p.s., comment. para. 3. Particular guidelines may require a higher standard of proof in specific contexts. See, e.g., USSG §3A1.1(a) (adjustment for hate-crime motivation requires proof beyond a reasonable doubt). And courts are divided over whether a higher standard may be required if a fact has a disproportionate effect on the sentence imposed. 45 If the court intends to depart from the guideline range on a ground not identified in the presentence report or a pre-hearing submission, Chapter Six and Rule 32 require it to provide reasonable notice that it is contemplating such a ruling, specifically identifying the grounds for the departure. USSG §6A1.4, p.s.; FED. R. CRIM. P. 32(h); see generally Burns v. United States, 501 U.S. 129 (1991). Similar notice is not necessary, however, when the court intends to sentence outside the
(reserving question whether higher standard of proof may be necessary in an “extraordinary or dramatic case”).
22
guideline under § 3553(a) and Booker. See Irizarry v. United States, 553 U.S. 708, 713–15 (2008). Nonetheless, “[s]ound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the [sentencing hearing], and in the hearing itself, has given them an adequate opportunity to confront and debate the relevant issues.” Id. at 715; cf. FED. R. CRIM. P. 32(i)(1)(C) (requiring court to allow parties to comment on “matters relating to an appropriate sentence”).
Plea agreements. Chapter Six, Part B sets out the Guidelines Manual’s procedures and standards for accepting plea agreements. The standards vary with the type of agreement. See FED. R. CRIM. P. 11(c)(1). (Plea agreements are discussed below, under “Plea Bargaining and Federal Sentencing.”) While the parties may stipulate to facts as part of a plea agreement, policy statement §6B1.4(d) provides that such a stipulation is not binding on the court. Before entry of a dispositive plea, prosecutors are encouraged, but not required, to disclose to the defendant “the facts and circumstances of the offense and offender characteristics, then known to the prosecuting attorney, that are relevant to the application of the sentencing guidelines.” §6B1.2, p.s., comment.
Chapter Seven: Violations of Probation and Supervised Release. Chapter Seven sets out policy statements applicable to revocation of probation and supervised release. See 18 U.S.C. § 3553(a)(4)(B) (requiring court to consider guidelines and policy statements applicable to revocation). The policy statements classify violations of conditions, guide probation officers in reporting those violations to the court, and propose dispositions for them. For violations leading to revocation, policy statement §7B1.4 provides an imprisonment table similar in format to the Chapter Five sentencing table.
An Introduction to Federal Sentencing
Chapter Eight: Sentencing of Organizations. When a convicted defendant is an organization rather than an individual, application of the sentencing guidelines is governed by Chapter Eight.
Appendices. The official Guidelines Manual includes three appendices. Appendix A is an index specifying the Chapter Two guideline or guidelines that apply to a conviction under a particular statute. Appendix B sets forth selected sentencing statutes. Appendix C includes, in chronological order, the amendments to the Manual since its initial publication in 1987.
The Guidelines and Sentencing Advocacy For years, calculation of the guidelines was the paramount issue in federal sentencing: the range set by the guidelines was mandatory, and the court’s authority to sentence outside that range was severely limited. This is no longer the case. After Booker, guideline application is only the starting point of sentencing. In addition to calculating the defendant’s guideline range, counsel must consider the remaining factors under 18 U.S.C. § 3553(a) in advocating for a sentence that is sufficient, but not greater than necessary, to comply with the purposes of sentencing. And counsel must always remember that disagreement with the applicable guideline can, by itself, support a sentence below, or above, the guideline range
Step-by-Step Guideline Application. As the Supreme Court has made clear, a correct calculation of the guideline range remains the first step of the federal sentencing process. See Gall, 552 U.S. at 49–50. Guideline §1B1.1 provides step-bystep instructions for applying the guidelines. To facilitate following those steps, the Sentencing Commission has prepared sentencing worksheets
23
for both individual and organizational defendants, available in Appendix D of the Guidelines Manual.
Challenging the Basis of a Particular Guideline. While the guidelines remain crucially important, defense counsel must guard against unthinking acceptance of the guidelines’ recommendation when preparing for sentencing. When a guideline range fails to account for the mitigating circumstances of an individual defendant’s case, counsel should seek a downward departure or variance. Even when individualized arguments are absent, however, legitimate arguments can often be made that a lower sentence is required because a particular guideline lacks foundation in the statutory purposes of sentencing. In creating the guidelines, the Commission was charged with an extremely difficult task—it was called upon to implement the wide-ranging sentencing goals of § 3553(a)(2), and at the same time both to avoid “unwarranted sentencing disparities,” and to maintain “sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors.” 28 U.S.C. § 991(b)(1)(B). 46 Facing these sometimes conflicting demands, the original members of the Commission could not agree on which sentencing purposes should predominate. See USSG Ch.1, Pt.A, subpt.1(3), p.s. (The Basic Approach); Rita, 551 U.S. at 349. Instead, the Commissioners decided to study past practice as a proxy for policy choices. This “empirical” approach was a compromise intended to ensure that the Guidelines effectuated Congress’s sentencing goals. Rita, 551 U.S. at 349; see also USSG Ch.1, Pt.A, subpt.1(3), p.s.; Stephen 46 One commentator has identified as many as 32 dif-
ferent congressional directives with which the Commission had to contend in promulgating the guidelines. See Mark W. Osler, Death to These Guidelines and a Clean Sheet of Paper, 21 FED. SENT’G REP. 7, 7–8 (2008).
An Introduction to Federal Sentencing
Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 HOFSTRA L. REV. 1, 17–18 (1988). In Rita, the Supreme Court relied upon the Commission’s capacity to use empirical data and national experience in ruling that within-guidelines sentences could be afforded a presumption of reasonableness on appeal. Rita, 551 U.S. at 349; see also Kimbrough, 552 U.S. at 108–09. Not all guidelines and policy statements, however, are tied to empirical evidence. See Kimbrough, 552 U.S. at 109 (finding that cocaine base guidelines “do not exemplify the Commission’s exercise of its characteristic institutional role”); Gall, 552 U.S. at 46 n.2 (same, drug guidelines generally).47 Although the Commission intended that its approach would “begin[ ] with, and build[ ] upon, empirical data,” USSG Ch.1, Pt.A, subpt.1(3), p.s., the “idealized vision of Commission policy making is the exception rather than the rule.” Paul J. Hofer, The Reset Solution, 20 FED. SENT’G REP. 349 (2008). Instead, “[t]he Guidelines mechanism has often been seized by the political branches and directed toward goals other than the purposes of sentencing.” Id. In many instances, the Commission did not rely on empirical data in promulgating guidelines, but instead responded to demands from Congress or the Department of Justice. In such cases, there is little basis for concluding that the guideline range represents a “rough approximation” of sentences that would achieve the Sentencing Reform Act’s goals. Rita, 551 U.S. at 349–52. Considering the history of the guidelines’ evolution, it is important that counsel investigate 47 Other
commonly applied guidelines suffer from a similar lack of empirical support. See, e.g., United States v. Dorvee, 616 F.3d 174, 184–87 (2d Cir. 2010) (discussing child pornography guideline); see generally United States v. Jones, 531 F.3d 163, 173 n.7 (2d Cir. 2008) (noting that Commission lacked empirical basis for its initial set of guidelines). 24
whether there is an empirical basis for an applicable guideline before accepting that guideline’s recommendation. Such investigation can lead to arguments for a lower sentence, even in a case that may not present individualized grounds for leniency. As the Supreme Court explained in the context of the cocaine-base guideline, “even when a particular defendant … presents no special mitigating circumstances—no outstanding service to country or community, no unusually disadvantaged childhood, no overstated criminal history score, no post-offense rehabilitation—a sentencing court may nonetheless vary downward from the advisory guideline range. … The only fact necessary to justify such a variance is the sentencing court’s disagreement with the guidelines ….” Spears, 555 U.S. at 263–64 (citation omitted). This reasoning applies to any guideline that lacks empirical support. As the Court has made clear, the system created by Booker authorizes a nonguideline sentence not just based on individualized mitigating or aggravating circumstances, but also when the guideline sentence fails properly to reflect § 3553(a) considerations, reflects “unsound judgment,” or when “the case warrants a different sentence regardless.” Rita, 551 U.S. at 351, 357. A guideline’s lack of empirical foundation can help support such arguments. Before challenging a guideline’s empirical basis, however, counsel should consider the guidelines’ recommendations in the larger context of client advocacy. In some cases, the guideline range may call for an appropriate sentence, even one that is lower than the court would otherwise be inclined to impose. In those cases, defense counsel can argue for deference to the guideline range and point out that following the Commission’s recommendation could avoid unwarranted disparity and be sufficient to achieve the purposes of sentencing.
48 See, e.g., United States v. Jones, 639 F.3d 484, 488
(8th Cir. 2011) (presumption of reasonableness applies to departure based on policy statement §4A1.3); cf. An Introduction to Federal Sentencing
Arguing for a lower sentence within the guideline system—by way of downward adjustment or departure, rather than a variance under § 3553(a)— may also benefit a client by entitling the sentence to a presumption of reasonableness on appeal.48 By contrast, when a guideline suggests a sentence that is too high, defense counsel should be prepared to challenge its underlying assumptions, and to argue that, in light of all the factors in § 3553(a), the recommended guideline range is greater than necessary to achieve the purposes of sentencing. This flexible, case-by-case approach may appear to be inconsistent—it is not. A case-by-case approach is necessary to account for the fact that, while the guidelines sometimes get the balance of § 3553(a) factors right, they often do not. When the guidelines call for an appropriate sentence, counsel can acquiesce in, or even argue for, a sentence within the range. But when the guidelines get the factors wrong, and threaten to harm the defendant as a result, it is counsel’s duty to oppose their rote application. Only by considering the guidelines in the larger context of § 3553(a) can counsel construct a reasoned argument for the appropriate sentence.
Sentencing Memorandum. Given the complex nature of the federal sentencing process, counsel should generally avoid relying on the presentence report and the sentencing hearing to present all relevant arguments to the district court. Instead, counsel should strongly consider filing a written sentencing memorandum. Depending on the needs of the client and local court practice, a sentencing memorandum can address the relevant guidelines, policy statements, and commentary in the Guidelines Manual, as well as the wide variety of mitigating factors that are applicable under
United States v. Mohamed, 459 F.3d 979, 985–87 (9th Cir. 2006).
25
§ 3553(a). If the defendant is requesting a sentence below the guideline range, the memorandum should provide a ready foundation for the sentencing court’s required statement of reasons. See § 3553(c)(2).
Sentencing Hearing. Preparing for the sentencing hearing requires familiarity with the procedures for disclosing the presentence report and objecting to it, and for resolving disputes both before and during the hearing. These procedures are generally set out in Federal Rule of Criminal Procedure 32 and Chapter Six, Part A of the Guidelines Manual, and they may also be governed by local court rules or practices. Even in the advisory guideline system, the Supreme Court expects each defendant’s sentence to be subject to “thorough adversarial testing.” Rita, 551 U.S. at 351; cf. Irizarry, 553 U.S. at 715–16. And counsel must scrupulously observe appellate rules on preservation of error to protect issues for possible review under 18 U.S.C. § 3742.
Plea Bargaining and Federal Sentencing “[T]he reality [is] that criminal justice today is for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 566 U.S. 156, 170 (2012). Approximately 90 percent of defendants in federal court end up pleading guilty to one or more charges, 49 and the decision whether to plead guilty—and if so on what terms—can have a tremendous effect on the sentence imposed. The Department of Justice takes the position that “[p]lea agreements should reflect the totality of a defendant’s conduct[,]” and accordingly that 49 See ADMINISTRATIVE OFFICE OF THE U.S. COURTS, JU-
DICIAL BUSINESS OF THE UNITED STATES COURTS, tbl. D-
4 (2022). 50 The Supreme Court has recognized the importance
of providing sound legal advice concerning a plea bargain offer, holding that poor advice that led a defendant to reject a plea bargain for a sentence far less than An Introduction to Federal Sentencing
“prosecutors will generally seek a plea to the most serious offense that is consistent with the nature and full extent of the defendant’s conduct and likely to result in a sustainable conviction[.]” DOJ Manual 9-27.400. At the same time, the Department recognizes that plea bargaining should be “informed by an individualized assessment of all of the facts and circumstances of each particular case.” Id. Defense counsel must use these principles to the client’s advantage, pointing out weaknesses in the prosecution that could affect the sustainability of more serious charges and negotiating for better plea-bargain terms based on the individual mitigating circumstances presented by a particular case or defendant. In some instances, when a fair bargain cannot be achieved, counsel may advise the defendant to plead guilty without an agreement, or to go to trial. Such advice is inextricably tied to the sentencing consequences that will follow from the defendant’s decision. Accordingly, before advising the client, counsel must have a thorough understanding of the federal plea-bargaining system and its interaction with the advisory guidelines and the other sentencing factors in 18 U.S.C. § 3553(a). The following discussion provides no more than a starting point for that essential understanding. 50
The Types of Federal Plea Agreement. Federal Rule of Criminal Procedure 11(c)(1) and policy statement §6B1.2 describe three forms of plea agreement: charge bargain; sentence recommendation; and specific, agreed sentence. While other forms of plea agreement are possible, these are the most common, and each has important conse-
he ultimately received constituted ineffective assistance of counsel, even though the defendant received a fair trial. See Lafler v. Cooper, 566 U.S. 156, 160, 174 (2012). As a general matter, even a failure to communicate a favorable plea bargain offer to a defendant will constitute ineffective assistance of counsel. Missouri v. Frye, 566 U.S. 134, 145 (2012). 26
quences for sentencing under the advisory guidelines. A charge bargain must be closely examined to determine whether the supposed sentencing benefit is real or illusory once the effects of relevant conduct and multiple-count grouping have been considered. Other, equally important considerations affect the possible benefits of sentence-recommendation and sentence agreement bargains. In all cases, the potential value of an acceptance-of-responsibility adjustment must be carefully considered. And because cooperation by the defendant is a common element of plea bargains, the statutory and guideline provisions that affect cooperating defendants can be of central importance. Each of these subjects is briefly discussed below.
Charge bargains. Federal plea bargaining has typically involved charge-bargaining agreements, under which the court may accept a defendant’s plea to one or more charges in exchange for the dismissal of others. See FED. R. CRIM. P. 11(c)(1)(A). If the other charges are not dismissed, Rule 11(c)(5) gives the defendant the right to withdraw his plea. While such bargains are common, they often have little effect on the guideline range. This is because of the dramatic impact of two related guideline concepts: relevant conduct and multiple-count grouping.
Relevant conduct. A plea agreement calling for dismissal of counts will not reduce the offense level if the subject matter of the dismissed counts is deemed “relevant conduct” for purposes of determining the guideline range. See USSG §1B1.3 (stating relevant conduct rule); §6B1.2(a), p.s. (charge bargain cannot preclude consideration of relevant conduct). Thus, for example, if a defendant pleads guilty to one drug count in exchange for the dismissal of others, the base offense level will
usually be determined from the total amount of drugs involved in all counts, even the dismissed ones. Despite the effect of relevant conduct, however, charge bargaining can still confer important sentencing benefits. When one of the counts is governed by a Chapter Two guideline with a lower offense level, a plea to that count may produce a lower guideline range. 51 Even if a count does not have a lower guideline range, it may carry a lower statutory maximum. Because statutes trump guidelines, a charge bargain may have the effect of capping the maximum sentence below the probable guideline range, see USSG §5G1.1(a), or avoiding a statutory minimum that would raise the guideline range, see §5G1.1(b). By avoiding a higher statutory maximum or minimum, a charge bargain can also limit the extent of a potential above-Guidelines sentence or allow greater discretion for a sentence reduction. Finally, a charge bargain that limits exposure to a single count of conviction can avoid the danger that sentences will run partially or fully consecutively, either to achieve the “total punishment” called for by the guidelines, see §5G1.2(d), or to accommodate an upward departure or variance.
Multiple-count grouping. A corollary to the relevantconduct rule, guideline §3D1.2 requires grouping of counts in many common prosecutions in which separate charges involve substantially the same harm. When counts are grouped, a single offense level—the highest of the counts in the group—applies to those counts of conviction. §3D1.3(a). In such cases, a charge bargain’s benefit may be illusory, since conviction on multiple counts will not adjust the offense level upward. Nevertheless, as with relevant conduct, a charge bargain may sometimes be of benefit under the
51 Note, however, that dismissed charges which are not
considered in determining the guideline range can still provide grounds for upward departure. §5K2.21, p.s. An Introduction to Federal Sentencing
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grouping rules. For offenses that do not group, such as robberies, Chapter Three, Part D may require an upward adjustment if there are multiple convictions. Dismissing counts will avoid this adjustment, provided the defendant does not stipulate to all the elements of a dismissed offense as part of a plea bargain. See §1B1.2(c) & comment. (n.3). Note, however, that regardless of the grouping rules, some offenses (most notably the firearms offenses in 18 U.S.C. § 924(c)) require a consecutive sentence.
Sentencing recommendations; specific sentencing agreements. In addition to charge bargains, Federal Rule of Criminal Procedure 11 authorizes the prosecutor to make either nonbinding recommendations, or binding agreements, with regard to the sentence to be imposed. Rule 11(c)(1)(B) authorizes the prosecutor to recommend, or agree not to oppose, a specific sentence or sentencing range, or the application of a particular guideline or policy statement. Sentence recommendations under Rule 11(c)(1)(B) are nonbinding: A defendant who enters a plea agreement containing such a recommendation must understand that even if the court rejects the recommendation, he is not entitled to withdraw his plea. FED. R. CRIM. P. 11(c)(3)(B). Rule 11(c)(1)(C) authorizes a plea agreement that requires imposition of a specific sentence, a sentence within an agreed guideline range, or the application of a particular guideline or policy statement. Unlike sentence recommendation agreements, Rule 11(c)(1)(C) agreements are binding: If the court rejects the proposed sentence, the defendant is entitled to withdraw the plea. See FED. R. CRIM. P. 11(c)(5). Policy statement §6B1.2 provides that a court may accept a Rule 11(c)(1)(B) or 11(c)(1)(C) agreement only if the proposed sentence is within the applicable guideline range or departs or varies from the range for justifiable reasons. Because of the limits it places on sentencing discretion, a binding sentence agreement under Rule
An Introduction to Federal Sentencing
11(c)(1)(C) can sometimes be difficult to obtain. If the prosecutor will not agree to a specific sentence, or if the court is likely to reject it, counsel should consider the less-restrictive forms authorized by the rule, which can still afford the defendant a measure of protection. For example, the parties might agree under Rule 11(c)(1)(C) that a particular guideline adjustment be applied, or that the sentence not exceed a specified sentencing range. If the court does not follow the parties’ agreement on a particular sentence component, the defendant can withdraw the plea.
Acceptance of Responsibility. Sometimes, the only guideline-range benefit for a plea of guilty will be the adjustment for acceptance of responsibility. Pleading guilty does not guarantee the adjustment, but it provides a basis for it. See USSG §3E1.1, comment. (n.3). Demanding trial does not automatically preclude the adjustment, but usually renders it a remote possibility. See id., comment. (n.2). In evaluating the prospects for an acceptance-ofresponsibility adjustment, counsel must guard against giving up a valuable right to trial, solely in pursuit of an adjustment that may already be lost. Scrutinize all pertinent facts that may bear upon this determination—particularly any criminal conduct committed while on pretrial release. See §3E1.1, comment. (n.3) (in considering evidence of acceptance, entry of a guilty plea “may be outweighed by conduct … that is inconsistent with … acceptance of responsibility”). And pay special attention to the possibility of an adjustment for obstruction of justice under guideline §3C1.1. See §3E1.1, comment. (n.4). When it is certain that a defendant will not receive the adjustment for acceptance of responsibility, a plea of guilty that confers no other benefit will not improve the guideline range. Nevertheless, a guilty plea may benefit the defendant in other ways—for example, by diminishing the risk of an upward departure, improving the possibility or extent of a downward
28
departure, or inducing the court to impose a lower sentence based on the factors in § 3553(a).
specifically requests such a sentence. Melendez v. United States, 518 U.S. 120, 125–26 (1996).
Even when the acceptance adjustment is not in doubt, counsel should consider whether plea bargaining could help obtain a government motion for a third level of reduction under §3E1.1(b). Note, however, that the plain language of §3E1.1(b) does not require entry into a plea agreement, but only “timely notifi[cation]” of an “intention to enter a plea of guilty.” Id. Likewise, the Government “should not withhold [the] motion based on interests not identified in §3E1.1, such as whether the defendant agrees to waive his or her right to appeal.” Id., comment. (n.6).
When the court considers a cooperation motion, it should give “[s]ubstantial weight” to “the government’s evaluation of the extent of the defendant’s assistance”; however, the ultimate determination of the value of the defendant’s assistance is for the court to make. §5K1.1(a)(1), p.s. & comment. (n.3). Even without a government departure motion, cooperation can benefit the defendant at sentencing, as the court can consider it in placing the sentence within the guideline range, in determining the extent of a departure based on other grounds, or as one of the factors justifying a lower sentence under § 3553(a). 52 By contrast, “[a] defendant’s refusal to assist authorities … may not be considered as an aggravating sentencing factor.” §5K1.2, p.s.
Cooperation. Congress directed the Commission to ensure that the guidelines reflect the general appropriateness of imposing a lower sentence “to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” 28 U.S.C. § 994(n). The Commission responded to this directive by promulgating policy statement §5K1.1. The policy statement requires a motion by the government before the court can depart for substantial assistance. See Wade v. United States, 504 U.S. 181, 185 (1992) (dictum) (government §5K1.1 motion is “the condition limiting the court’s authority” to depart); cf. 18 U.S.C. § 3553(e) (government motion required for substantial-assistance departure below statutory minimum). Note that, while cooperation can reduce a sentence below either the guideline or the statutory minimum sentence, a substantial-assistance motion will not authorize a sentence below the statutory minimum unless the government
A defendant contemplating cooperation should always seek the protection of Federal Rule of Evidence 410 and guideline §1B1.8. With limited exceptions, Rule 410 renders inadmissible, in any civil or criminal proceeding, any statement made in the course of plea discussions with an attorney for the government, even if the discussions do not ultimately result in a guilty plea. 53 Guideline §1B1.8 permits the parties to agree that information provided by a cooperating defendant will not be used to increase the applicable guideline range. The guideline has limited effect, however. By its terms, it does not protect against the use of information previously known to the government or relating to criminal history, and it does not apply if the defendant breaches the cooperation agreement or is prosecuted for perjury or false statement. See §1B1.8(b). Moreover, §1B1.8
52 See, e.g., United States v. Motley, 587 F.3d 1153,
53 A defendant may waive the protections of Rule 410
1158 & n.2 (D.C. Cir. 2009) (collecting cases) (cooperation may be considered without government motion); see also 2022 Sourcebook, tbl. 44 (noting 818 cooperation-based reductions granted in absence of government motion).
as part of a plea agreement. United States v. Mezzanatto, 513 U.S. 196, 197 (1995).
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29
protects the defendant only from an increase in the guideline range, not from a higher sentence within that range, an upward departure, or a higher sentence under § 3553(a). While it is the “policy of the Commission” that information provided under a §1B1.8 agreement “shall not be used” for an upward departure, §1B1.8, comment. (n.1), counsel should seek an agreement that expressly precludes using the information as a basis for any increase in sentence.
“Fast-track” Dispositions. Policy statement §5K3.1 authorizes downward departures, on a Government motion, for “early disposition programs,” more commonly known as “fast track.” The DOJ has adopted “uniform baseline eligibility requirements for any defendant who qualifies for fast-track treatment, regardless of where that defendant is prosecuted.” Memorandum from James M. Cole, Deputy Attorney General, to All United States Attorneys on Department Policy on Early Disposition or “Fast-Track” Programs 2 (Jan. 31, 2012). But the revised policy still grants local U.S. Attorneys discretion to establish more restrictive eligibility criteria and to allow more limited sentencing relief. Id. at 2–4. Because of this discretion, fast-track eligibility and benefits still vary widely from district to district. If a defendant is eligible for a fast-track program, counsel should consider whether it would benefit the defendant to participate, considering the important rights that the program may require the defendant to relinquish (such as a waiver of the right to appeal). On the other hand, if a defendant is not eligible for a district’s fast-track program, but would be eligible in other districts, counsel should consider whether to seek a below-guideline sentence on the ground that it is necessary to avoid unwarranted disparity. The circuits are currently divided on the propriety of imposing a below-guideline sentence on this basis. 54 54 See United States v. Lopez-Macias, 661 F.3d 485, 491
An Introduction to Federal Sentencing
Some Traps for the Unwary Pretrial Services Interview. In most courts, a pretrial services officer (or a probation officer designated to perform pretrial services) will seek to interview arrested persons before their initial appearance, to gather information pertinent to the release decision. Absent specified exceptions, information obtained during this process “is not admissible on the issue of guilt in a criminal judicial proceeding[.]” 18 U.S.C. § 3153(c)(3). The information is, however, made available to the probation officer for use in the presentence report. § 3153(c)(2)(C). Although the defendant may not realize it, certain information pertinent to the release decision— including criminal history, earnings history, and possession of a special skill—can raise the guideline range, provide a basis for upward departure, or support a higher sentence under § 3553(a). Such information can also affect the decision to impose a fine or restitution. Additionally, defendants must take scrupulous care to ensure that information provided to the pretrial officer and the court is truthful. A finding that the defendant gave false information can lead to denial of credit for acceptance of responsibility, to an upward adjustment for obstruction, and even to the filing of additional charges. Because of these many dangers, counsel should, if possible, attend the pretrial services interview or advise the defendant beforehand. Counsel who enters a case after the pretrial report is prepared must learn what information was acquired by the officer to be prepared for its possible effect. See 18 U.S.C. § 3153(c)(1) (requiring that pretrial services report be made available to defense).
Presentence Report and Probation Officer’s Interview. In most cases, a probation of-
n.6 (10th Cir. 2011) (discussing split). 30
ficer will provide a presentence investigation report to the court for its consideration before imposing sentence. 18 U.S.C. § 3552(a); FED. R. CRIM. P. 32(c). The importance of the presentence report cannot be overstated. In it, the probation officer will recommend fact findings, guideline calculations, and potential grounds for departure; in many districts, the officer may also recommend factors to be considered in sentencing outside the guideline range under § 3553(a). See FED. R. CRIM. P. 32(d)(2)(F). After sentencing, the report is sent to the Federal Bureau of Prisons, where it can affect the institutional placement decision, conditions of confinement, and eligibility for prison programs. The report can also affect the conditions of probation or supervised release. It can even raise the possibility of post-imprisonment civil commitment as a “sexually dangerous person,” regardless of whether the conviction is for a sex offense. See 18 U.S.C. §§ 4247(a)(5), 4248. Many presentence report recommendations, while nominally objective, have a significant subjective component. The probation officer’s attitude toward the case or the client may substantially influence the report’s sentencing recommendations—recommendations that enjoy considerable deference from both the judge at sentencing and the reviewing court on appeal. Over-
55 Rule 32 permits the court to decline to resolve dis-
putes regarding the presentence report if the controverted matter will not affect the sentence. See FED. R. CRIM. P. 32(i)(3)(B) & advisory committee note (2002 amendment). Even when the sentence will not be affected, however, counsel should press for resolution of disputes on matters that the Bureau of Prisons could consider in determining where and under what conditions the defendant will serve his sentence. See generally U.S. DEP’T OF JUSTICE, Bureau of Prisons Program Statement 5100.08 (2019).
looked factual errors in the report can be especially dangerous, as Rule 32(i)(3)(A) permits a sentencing court to “accept any undisputed portion of the presentence report as a finding of fact[.]” 55 For these reasons, counsel must independently review the entire report, make any necessary objections, and affirmatively present the defense argument for a favorable sentence. Counsel should never assume that the probation officer has arrived at a favorable recommendation, or even a correct one. 56 The probation officer’s presentence investigation will usually include an interview of the defendant. Broader than the interview conducted by pretrial services, this interview has even greater potential to increase a sentence in specific, foreseeable ways. Disclosing undetected relevant conduct may, by operation of guideline §1B1.3, increase the offense level. Information first revealed during the presentence interview may affect Chapter Three adjustments, such as obstruction of justice and acceptance of responsibility. Revelations of undiscovered criminal history may increase the criminal history score or provide a ground for departure. Other revelations, such as drug use and criminal associations, may result in an unfavorable adjustment or upward departure, or otherwise support a higher sentence. Because the presentence interview holds many perils, the defendant must fully understand its they place upon a defendant to challenge the report’s factual allegations. Compare, e.g., United States v. Moreno-Padilla, 602 F.3d 802, 808–09 (7th Cir. 2010) (defendant bears burden of showing that information in report is unreliable; mere objection is insufficient), with United States v. Davis, 583 F.3d 1081, 1095 (8th Cir. 2009) (when defendant objects to report, government must produce evidence on disputed facts). See generally THOMAS W. HUTCHISON ET AL., FEDERAL SENTENCING LAW AND PRACTICE §6A1.3, author’s cmt. 5(e), 1782–83 (West 2020).
56 Courts vary in how they view the evidentiary weight
of the presentence report, and in what requirements An Introduction to Federal Sentencing
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function and importance, and defense counsel should attend the interview. See FED. R. CRIM. P. 32(c)(2) (requiring that probation officer give counsel notice and reasonable opportunity to attend interview). In some cases, counsel may decide to limit the scope of the presentence interview—by excluding, for example, any discussion of matters such as relevant conduct or criminal history. While the privilege against self-incrimination applies at sentencing, Mitchell v. United States, 526 U.S. 314, 316 (1999), refusal to submit to an unrestricted presentence interview is often hazardous. It can jeopardize the adjustment for acceptance of responsibility or adversely affect decisions whether to follow the guidelines, or where to place the sentence within the guideline range. There is no fixed solution to this dilemma; counsel and the defendant must make an informed decision as to the best course in the context of the case.
Waiver of Sentencing Appeal. One of the most important safeguards put in place by the Sentencing Reform Act was the right to appellate review. See 18 U.S.C. § 3742. Nonetheless, prosecutors in many districts attempt to insulate sentences from review by requiring the defendant to waive the right to appeal or collaterally attack the sentence as part of a plea agreement. The Supreme Court has never specifically approved these appeal waivers, but they have been approved 57 For some of these limitations, see, e.g., United States
v. Teeter, 257 F.3d 14, 25–26 (1st Cir. 2001) (appeal waiver not binding when sentencing error would work a miscarriage of justice); United States v. Goodman, 165 F.3d 169, 175 (2d Cir. 1999) (refusing to enforce a broad waiver that would expose the defendant to “a virtually unbounded risk of error or abuse by the sentencing court”); United States v. Jacobson, 15 F.3d 19, 23 (2d Cir. 1994) (waiver not binding if sentence imposed on basis of ethnic bias); United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000) (appeal waiver does not bar appeal if sentence exceeded maximum authorized penalty or was based on constitutionally impermissible factor); United States v. Marin, 961 F.2d 493, 496 (4th An Introduction to Federal Sentencing
(with some limitations) by every court of appeals that has considered them. 57 Federal Rule of Criminal Procedure 11(b)(1)(N) requires the court to advise the defendant of the terms of any bargained sentencing-appeal waiver as part of the plea colloquy. Unthinking acceptance of an appeal waiver can have disastrous results for the client. The waiver is usually accepted before the presentence report is prepared; at that time, the defendant cannot know what possible errors the probation officer, or the court, will make in determining the guideline range, the propriety of a departure, or the effect of the other sentencing factors in § 3553(a). Counsel can defend against the danger of an unknowing waiver by refusing to agree to one, or by demanding concessions in exchange for it (e.g., a reduced charge, or an agreement to a binding sentence or guideline range). If the prosecutor insists on the waiver and refuses to give valuable concessions in exchange for it, defense counsel should carefully consider whether to advise the defendant to plead guilty without an agreement or go to trial. Counsel should also resist any proposed waiver that does not make specific exception for claims of ineffective assistance or prosecutorial misconduct; without these exceptions, the waiver raises the serious ethical problem of lawyers bargaining
Cir. 1992) (waiver cannot subject defendant to sentencing at whim of district court); United States v. Palmer, 456 F.3d 484, 488–89 (5th Cir. 2006) (sentencing appeal waiver does not limit right to challenge conviction); United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006) (waiver not effective unless government seeks to enforce it); United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990) (waiver does not prevent appeal if sentence imposed does not accord with negotiated agreement); United States v. Black, 201 F.3d 1296, 1301 (10th Cir. 2000) (appeal waivers, like other contracts, subject to public policy constraints).
32
to protect themselves from possible future liability. 58
Guideline Amendments. Title 28 U.S.C. § 994(p) authorizes the Sentencing Commission to submit guideline amendments to Congress by May 1 of each year. Absent congressional modification or disapproval, the amendments ordinarily take effect the following November 1. Congress can also direct the Commission to promulgate amendments outside the regular amendment cycle, and it has even amended the guidelines itself. Since the guidelines were first promulgated in 1987, they have been amended more than 800 times; many of these amendments affected multiple guideline provisions. The amendments, along with explanatory notes, are set out chronologically in Appendix C to the Guidelines Manual. Normally, the court must use “the Guidelines Manual in effect on the date that the defendant is sentenced.” USSG §1B1.11(a). But if using that version of the Manual would violate the Constitution’s Ex Post Facto Clause—such as when a detrimental guideline amendment takes effect between the commission of the offense and the date of sentencing—“the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.” §1B1.11(b)(1); see Peugh v. United States, 569 U.S. 530 (2013). Each guideline includes a historical note, which facilitates determining whether the guideline has been amended since the offense was committed. If ex post facto principles require use of an earlier 58 See, e.g., Ohio Advisory Ethics Op. 2001-6 (2001)
guideline, the Commission requires that “[t]he Guidelines Manual in effect on a particular date shall be applied in its entirety.” §1B1.11(b)(2). For resentencing on remand after appeal, the sentencing range is determined by application of the guidelines in effect on the date of the previous sentencing. 18 U.S.C. § 3742(g)(1). 59 Counsel should become familiar with each new round of submitted amendments as soon as they are published by the Commission, paying close attention to amendments that the Commission denominates “clarifying.” Clarifying amendments are intended to explain the meaning of previously promulgated guidelines. If a proposed amendment changes the application of a guideline to a defendant’s disadvantage, counsel should not automatically accede to its retroactive application, simply because the Commission characterized it as “clarifying.” 60 On the other hand, if a proposed clarifying guideline amendment benefits the client, counsel should seek its application even before the effective date, arguing that it provides authoritative guidance as to the meaning of the current guideline. Even if a beneficial amendment is not deemed “clarifying,” it may support a request for downward departure or variance before its effective date. Some amendments may benefit a defendant who is already serving an imprisonment term. If the Commission expressly provides that a beneficial amendment has retroactive effect, and the
(citing ethics opinions from other states); Alan Ellis and Todd Bussert, Stemming the Tide of Postconviction Waivers, 25 CRIM. JUST. 28 (2010).
have yet to be incorporated” into the Guidelines Manual); see also § 3553(a)(5)(A) (same, policy statements); § 3742(g)(1) (same rule applied to remanded cases).
59 The sentencing statutes have special rules for guide-
60 See, e.g., United States v. Capers, 61 F.3d 1100, 1110
line amendments passed by Congress. See 18 U.S.C. § 3553(a)(4)(A)(i) (requiring that any congressional guideline amendments in place at time of sentencing be applied “regardless of whether such amendments
(4th Cir. 1995) (Commission’s characterization of amendment as “clarifying ‘cannot be accepted as conclusive’”) (quoting United States v. Guerrero, 863 F.2d 245, 250 (2d Cir. 1988)); United States v. Cianscewski, 894 F.2d 74, 78 n.13 (3d Cir. 1990) (same).
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amendment would reduce the defendant’s guideline range, the court may reduce the sentence. 18 U.S.C. § 3582(c)(2); USSG §1B1.10, p.s. Note, however, that the availability or extent of a reduced sentence under a beneficial retroactive amendment may be limited by the language of policy statement §1B1.10, or by language in the defendant’s plea agreement. 61
Validity of Guidelines. The Sentencing Commission’s guidelines, policy statements, and commentary must be consistent with all pertinent statutory provisions. 28 U.S.C. § 994(a). Counsel must scrutinize all pertinent guideline provisions for statutory validity, with special attention to recent amendments. See, e.g., United States v. LaBonte, 520 U.S. 751 (1997) (invalidating guideline amendment as contrary to congressional directive in § 994). As Booker made clear, the guidelines must also conform to the requirements of the Constitution. 543 U.S. at 233–37; see also Mistretta v. United States, 488 U.S. 361 (1989) (considering constitutional challenges to guideline sentencing). Even under the advisory system, it may be possible to argue that a guidelines-based sentence violates the Sixth Amendment. In particular, when the only bases for upholding a sentence as reasonable are judge-made factual determinations under the guidelines, the sentence may be challenged based on the reasoning in Booker. 62 This is particularly the case when, because the sentence is within the guideline range, it is presumed reasonable on appeal. 63 61 See Dillon v. United States, 560 U.S. 817 (2010) (not-
withstanding Booker, limiting language in policy statement §1B1.10 is binding at sentence-modification proceedings under § 3582(c)(2)). 62 See Rita, 551 U.S. at 372–76 (Scalia, J., concurring)
(sentence that is substantively reasonable only because of judge-found fact would violate Sixth Amendment); see also Jones v. United States, 574 U.S. 948 (2014) (Scalia, J., dissenting from denial of cert.) (same); An Introduction to Federal Sentencing
More About Federal Sentencing The Supreme Court’s Post-Booker Sentencing Cases. Since Booker, the Supreme Court has decided many cases directly involving federal sentencing practice under the advisory guidelines. Selected decisions are listed below, with a brief description of the holding. (Many are discussed in greater detail elsewhere in this paper.) Like Booker, the first three listed cases— Rita, Gall, and Kimbrough—are essential reading, as they provide the framework for sentencing advocacy in the advisory guidelines system. But the other cases can also be important, especially as they relate to issues in a particular case. Rita v. United States, 551 U.S. 338 (2007). It is permissible, but not required, for a court of appeals to presume that a sentence within the applicable guideline range is reasonable; however, the district court may not presume a guideline sentence is reasonable, and it must address non-frivolous arguments for a sentence outside the range; when sentencing issues are simple, extensive written reasons for the sentence are not required by 18 U.S.C. § 3553(c). Gall v. United States, 552 U.S. 38 (2007). The abuse-of-discretion standard of review applies equally to sentences inside and outside the guidelines range; after correctly calculating the range, the court must then consider all of the factors in § 3553(a); no extraordinary individual circumstances are required for a non-guideline sentence,
United States v. White, 551 F.3d 381, 388–91 (6th Cir. 2008) (Merritt, J., dissenting) (discussing issue). 63 See Marlowe v. United States, 555 U.S. 963 (2008)
(Scalia, J., dissenting from denial of certiorari) (sentence for negligent homicide increased from 51- to 63month guideline range to life imprisonment, based on judge’s determination that defendant committed second-degree murder).
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and the court of appeals should not substitute its judgment for that of the district court.
U.S.C. § 3582(c)(2) is not a plenary resentencing, Booker is inapplicable.
Kimbrough v. United States, 552 U.S. 85 (2007). Sentencing courts are free to vary from the guideline range based solely on policy considerations, including disagreements with the guidelines; while closer appellate review might be appropriate for sentences based on such disagreements, there is no occasion to discuss the need for closer review in the case of the crack cocaine guidelines, because those guidelines are not based on empirical data or national experience.
Pepper v. United States, 562 U.S. 476 (2011). Booker applies to a resentencing hearing on remand from the court of appeals; 18 U.S.C. § 3742(g)(2), which restricts the discretion of the resentencing court to impose a non-guideline sentence, is constitutionally invalid.
Irizarry v. United States, 553 U.S. 708 (2008). Federal Rule of Criminal Procedure 32(h)’s requirement that sentencing court give specific notice of guideline departures does not apply to variances under the advisory guideline system; counsel has the right to comment on matters relating to the appropriate sentence under Rule 32(i)(1)(C). Moore v. United States, 555 U.S. 1 (2008) (per curiam). The sentencing court’s belief that it was not free to disagree with the crack cocaine guideline required remand for resentencing. Spears v. United States, 555 U.S. 261 (2009) (per curiam). A sentencing court is free to reject the crack-cocaine guidelines’ 100-to-1 crack-to-powder ratio based on a policy disagreement, and it may substitute its own crack-to-powder ratio for that of the Sentencing Commission. Nelson v. United States, 555 U.S. 350 (2009) (per curiam). A sentencing court cannot presume a guidelines sentence to be reasonable; the court erred by presuming the reasonableness of the guidelines range and requiring the defendant to provide a good reason for a sentence outside that range. Dillon v. United States, 560 U.S. 817 (2010). Because a sentence-modification proceeding based on a retroactive guidelines amendment under 18
An Introduction to Federal Sentencing
Tapia v. United States, 564 U.S. 319 (2011). Title 18 U.S.C. § 3582(a) precludes the sentencing court from imposing or lengthening a prison term for the purpose of promoting rehabilitation. Peugh v. United States, 569 U.S. 530 (2013). It is an ex post facto violation to sentence a defendant under a version of the Sentencing Guidelines that provides a higher Guidelines range than the version in place when the offense was committed. Alleyne v. United States, 570 U.S. 99 (2013). As with facts that increase the maximum sentence, any fact that increases a mandatory minimum sentence is an element of crime and must either be admitted by the defendant or found by a jury beyond a reasonable doubt. Hughes v. United States, 138 S. Ct. 1765 (2018). In the usual case, a sentence that is the product of a Rule 11(c)(1)(C) plea agreement is “based on” the Sentencing Guidelines, for purposes of 18 U.S.C. § 3582(c)(2), “absent clear demonstration, based on the record as a whole, that the court would have imposed the same sentence regardless of the Guidelines.”
Reference Materials Federal Defenders of San Diego, Inc., DEFENDING A FEDERAL CRIMINAL CASE, Vol. 2, Ch. 16 (Mitigation), Ch. 17 (Federal Sentencing) (2016). Thomas W. Hutchison et al., FEDERAL SENTENCING LAW AND PRACTICE (West 2020). Vera Institute of Justice, Federal Sentencing Reporter (University of California Press).
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Online Information and Telephone Support A wealth of federal sentencing information is available on the Internet. Valuable resources include: •
United States Sentencing http://www.ussc.gov/
Commission,
•
Office of Defender Services Training Branch website, http://www.fd.org. also provides a toll-free hotline for defenders and private attorneys providing defense services under the Criminal Justice Act, at 800-788-9908. The Sentencing Commission also offers telephone support on the Guidelines, at 202-502-4545.
•
Professor Douglas A. Berman’s Sentencing Law and Policy blog, http://sentencing.typepad.com/
About This Publication This publication is intended to promote the continuing legal education of persons providing representational services under the Criminal Justice Act of 1964. None of the content of this paper is intended as, or should be taken as, legal advice. The views expressed are those of the Federal Public Defender for the Western District of Texas and not necessarily those of any other federal defender. Comments or suggestions are welcome: write to judy_madewell@fd.org.
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Ch. 5 Pt. A
SENTENCING TABLE
(in months of imprisonment) Offense Level 1 2 3 4 Zone A 5 6 7 8 9 Zone B 10 11 12 Zone C 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Zone D 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43
I
Criminal History Category (Criminal History Points) II
III
IV
V
VI
(0 or 1)
(2 or 3)
(4, 5, 6)
(7, 8, 9)
(10, 11, 12)
(13 or more)
0–6 0–6 0–6 0–6 0–6 0–6 0–6 0–6 4–10 6–12 8–14 10–16 12–18 15–21 18–24 21–27 24–30 27–33 30–37 33–41 37–46 41–51 46–57 51–63 57–71 63–78 70–87 78–97 87–108 97–121 108–135 121–151 135–168 151–188 168–210 188–235 210–262 235–293 262–327 292–365 324–405 360–life life
0–6 0–6 0–6 0–6 0–6 1–7 2–8 4–10 6–12 8–14 10–16 12–18 15–21 18–24 21–27 24–30 27–33 30–37 33–41 37–46 41–51 46–57 51–63 57–71 63–78 70–87 78–97 87–108 97–121 108–135 121–151 135–168 151–188 168–210 188–235 210–262 235–293 262–327 292–365 324–405 360–life 360–life life
0–6 0–6 0–6 0–6 1–7 2–8 4–10 6–12 8–14 10–16 12–18 15–21 18–24 21–27 24–30 27–33 30–37 33–41 37–46 41–51 46–57 51–63 57–71 63–78 70–87 78–97 87–108 97–121 108–135 121–151 135–168 151–188 168–210 188–235 210–262 235–293 262–327 292–365 324–405 360–life 360–life 360–life life
0–6 0–6 0–6 2–8 4–10 6–12 8–14 10–16 12–18 15–21 18–24 21–27 24–30 27–33 30–37 33–41 37–46 41–51 46–57 51–63 57–71 63–78 70–87 77–96 84–105 92–115 100–125 110–137 121–151 135–168 151–188 168–210 188–235 210–262 235–293 262–327 292–365 324–405 360–life 360–life 360–life 360–life life
0–6 0–6 2–8 4–10 6–12 9–15 12–18 15–21 18–24 21–27 24–30 27–33 30–37 33–41 37–46 41–51 46–57 51–63 57–71 63–78 70–87 77–96 84–105 92–115 100–125 110–137 120–150 130–162 140–175 151–188 168–210 188–235 210–262 235–293 262–327 292–365 324–405 360–life 360–life 360–life 360–life 360–life life
0–6 1–7 3–9 6–12 9–15 12–18 15–21 18–24 21–27 24–30 27–33 30–37 33–41 37–46 41–51 46–57 51–63 57–71 63–78 70–87 77–96 84–105 92–115 100–125 110–137 120–150 130–162 140–175 151–188 168–210 188–235 210–262 235–293 262–327 292–365 324–405 360–life 360–life 360–life 360–life 360–life 360–life life
Guidelines Manual (November 1, 2021) ║ 407
WORKSHEET A
OFFENSE LEVEL Defendant _____________________________________________
District/Office ______________________________
Docket Number ______________________________ Count Number(s) ________
U.S. Code Title & Section ______:______________; ______:______________
Guidelines Manual Edition Used: 20___ (Note: The Worksheets are keyed to the November 1, 2018 Guidelines Manual)
INSTRUCTIONS Complete a separate Worksheet A for each count of conviction or as required in a situation listed at the bottom of Worksheet B.* Exceptions: Use only a single Worksheet A where the offense level for a group of closely related counts is based primarily on aggregate value or quantity (see §3D1.2(d)) or where a count of conspiracy, solicitation, or attempt is grouped with a substantive count that was the sole object of the conspiracy, solicitation, or attempt (see §3D1.2(a) & (b)).
1. Offense Level (See Chapter Two) Enter the applicable base offense level and any specific offense characteristics from Chapter Two and explain the bases for these determinations. Enter the sum in the box provided. Guideline
Description
If the Chapter Two guideline requires application of a cross reference or other reference, an additional Worksheet A may be needed for that analysis. See §1B1.5.
Level
Sum
2. Victim-Related Adjustments (See Chapter Three, Part A) Enter the applicable section and adjustment. If more than one section is applicable, list each section and enter the combined adjustment. If no adjustment is applicable, enter “0”.
§_________ ___
3. Role in the Offense Adjustments (See Chapter Three, Part B) Enter the applicable section and adjustment. If more than one section is applicable, list each section and enter the combined adjustment. If the adjustment reduces the offense level, enter a minus (–) sign in front of the adjustment. If no adjustment is applicable, enter “0”.
§_________ ___
4. Obstruction Adjustments (See Chapter Three, Part C) Enter the applicable section and adjustment. If more than one section is applicable, list each section and enter the combined adjustment. If no adjustment is applicable, enter “0”.
§_________ ___
5. Adjusted Offense Level Enter the sum of Items 1–4. If this Worksheet A does not cover all counts of conviction or situations listed at the bottom of Worksheet B, complete Worksheet B. Otherwise, enter this result on Worksheet D, Item 1. Check here if all counts (including situations listed at the bottom of Worksheet B)* are addressed on this one Worksheet A. If so, no Worksheet B is used. If the defendant has no criminal history, enter “I” here and on Worksheet D, Item 4. No Worksheet C is used. U.S. Sentencing Commission Worksheets (November 1, 2018)
WORKSHEET B
MULTIPLE COUNTS* Defendant _____________________________________________
Docket Number ______________________________
INSTRUCTIONS STEP 1: Determine if any of the counts group under §3D1.2(a)–(d) (“the grouping rules”). All, some, or none of the counts may group. Some of the counts may have already been grouped in the application under Worksheet A, specifically: (1) counts grouped under §3D1.2(d); or (2) a count charging conspiracy, solicitation, or attempt that is grouped with the substantive count of conviction (see §3D1.2(a)). Explain the reasons for grouping:
STEP 2: Using the box(es) provided below, for each group of “closely related counts” (i.e., counts that group together under any of the four grouping rules), enter the highest adjusted offense level from Item 5 of the various Worksheets “A” that comprise the group. See §3D1.3. Note that a “group” may consist of a single count that has not grouped with any other count. In those instances, the offense level for the group will be the adjusted offense level for the single count. STEP 3: Enter the number of units to be assigned to each group (see §3D1.4) as follows: ● One unit (1) for the group of counts with the highest offense level ● An additional unit (1) for each group that is equally serious or 1 to 4 levels less serious ● An additional half unit (1/2) for each group that is 5 to 8 levels less serious ● No increase in units for groups that are 9 or more levels less serious
1. Adjusted Offense Level for the First Group of Counts _____ Unit
Count number(s) __________
2. Adjusted Offense Level for the Second Group of Counts _____ Unit
Count number(s) __________
3. Adjusted Offense Level for the Third Group of Counts _____ Unit
Count number(s) __________
4. Adjusted Offense Level for the Fourth Group of Counts _____ Unit
Count number(s) __________
5. Adjusted Offense Level for the Fifth Group of Counts _____ Unit
Count number(s) __________
6. Total Units _____ Total Units 7. Increase in Offense Level Based on Total Units (See §3D1.4) 1 unit: 1½ units: 2 units:
no increase add 1 level add 2 levels
2½ – 3 units: add 3 levels 3½ – 5 units: add 4 levels More than 5 units: add 5 levels
8. Highest of the Adjusted Offense Levels from Items 1–5 Above
9. Combined Adjusted Offense Level (See §3D1.4) Enter the sum of Items 7 & 8 here and on Worksheet D, Item 1. *Note: Worksheet B also includes applications that are done “as if there were multiple counts of convictions,” including: multiple-object conspiracies (see §1B1.2(d)); offense guidelines that direct such application (e.g., §2G2.1(d)(1) (Child Porn Production)); and stipulations to additional offenses (see §1B1.2(c)). Note also that these situations typically require the use of multiple Worksheets A. U.S. Sentencing Commission Worksheets (November 1, 2018)
WORKSHEET C
CRIMINAL HISTORY [Page 1 of 2] Defendant _____________________________________________
Docket Number ______________________________
Note: As an aid, some of the basic criminal history “rules” are listed below. However, there are numerous additional criminal history rules at §§4A1.1 and 4A1.2 that must be used with Worksheet C and for correct application.
Enter the Earliest Date of the Defendant’s Relevant Conduct ______________________________ (The date of the defendant’s commencement of the instant offense(s))
1. Prior Sentences Resulting from Offenses Committed Prior to the Defendant’s 18th Birthday (a) 3 Points if convicted as an adult, for each prior sentence of imprisonment exceeding one year and one month imposed within 15 years of the defendant’s earliest date of relevant conduct or resulting in incarceration during any part of that 15-year period. See §§4A1.1(a) and 4A1.2(d)(1) & (e)(1). (b) 2 Points for each prior adult or juvenile sentence of confinement of at least 60 days not counted under §4A1.1(a) imposed within 5 years or from which the defendant was released from confinement within 5 years of the defendant’s earliest date of relevant conduct. See §§4A1.1(b) and 4A1.2(d)(2)(A). (c) 1 Point for each prior adult or juvenile sentence not counted under §4A1.1(a) or §4A1.1(b) imposed within 5 years of the defendant’s earliest date of relevant conduct. See §§4A1.1(c) and 4A1.2(d)(2)(B). Note: Identify as “adult” any sentence exceeding one year and one month that resulted from an adult conviction. A release date is required in only two instances: (1) when a sentence covered under §4A1.1(a) was imposed more than 15 years prior to the defendant’s earliest date of relevant conduct but resulted in the defendant being incarcerated during any part of such 15-year period; or (2) when a sentence counted under §4A1.1(b) was imposed more than 5 years prior to the defendant’s earliest date of relevant conduct, but release from confinement occurred within such 5-year period.
Date of Imposition
Offense
Sentence
Release Date
Guideline Section
Criminal History Points
2. Prior Sentences Resulting from Offenses Committed On or After the Defendant’s 18th Birthday (a) 3 Points for each prior sentence of imprisonment exceeding one year and one month imposed within 15 years of the defendant’s earliest date of relevant conduct or resulting in incarceration during any part of that 15-year period. See §§4A1.1(a) and 4A1.2(e)(1). (b) 2 Points for each prior sentence of imprisonment of at least 60 days not counted under §4A1.1(a) imposed within 10 years of the defendant’s earliest date of relevant conduct. See §§4A1.1(b) and 4A1.2(e)(2). (c) 1 Point for each prior sentence not counted under §4A1.1(a) or §4A1.1(b) imposed within 10 years of the defendant’s earliest date of relevant conduct. See §§4A1.1(c) and 4A1.2(e)(2). Note: A release date is required when a sentence covered under §4A1.1(a) was imposed more than 15 years prior to the defendant’s earliest date of relevant conduct but resulted in the defendant being incarcerated during any part of such 15-year period.
Date of Imposition
Offense
Sentence
Release Date
U.S. Sentencing Commission Worksheets (November 1, 2018)
Guideline Section
Criminal History Points
Worksheet C — Criminal History [Page 2 of 2] Defendant _____________________________________________
Docket Number ______________________________
(continued from Sentences Resulting from Offenses Committed On or After the Defendant’s 18th Birthday) Date of Imposition
Offense
Sentence
Release Date
Guideline Section
Criminal History Points
3. Sum of Criminal History Points for prior sentences under §4A1.1(a), (b), & (c) in Items 1 & 2 A total of 4 points can be added for all the 1-Point sentences counted in Items 1 & 2 combined.
4. “Status” of Defendant at Time of Instant Offense 2 Points for “status” if the defendant committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence (e.g., probation, parole, supervised release, imprisonment, work release, or escape status) for a sentence counted in Items 1 or 2. See §4A1.1(d) and Application Note 4. List the type of control and identify the counted sentence that resulted in the control. Otherwise, enter 0 Points.
5. Crimes of Violence 1 Point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under §4A1.1(a), (b), or (c) because such sentence was counted as a single sentence which also included another sentence resulting from a conviction for a crime of violence. A total of 3 points can be added under this subsection. See §4A1.1(e) and Application Note 5, and §4A1.2(a)(2) & (p). Identify the crimes of violence and briefly explain why the cases are considered a single sentence. Otherwise, enter 0 Points.
6. Total Criminal History Points (Sum of Items 3–5)
7. Criminal History Category (Enter here and on Worksheet D, Item 4) Total Points 0–1 2–3 4–6 7–9 10–12 13 or more
Criminal History Category I II III IV V VI U.S. Sentencing Commission Worksheets (November 1, 2018)
WORKSHEET D
DETERMINING THE SENTENCE [Page 1 of 4] Defendant _____________________________________________
Docket Number ______________________________
1. Adjusted Offense Level (From Worksheet A or B) If Worksheet B is required, enter the result from Worksheet B, Item 9. Otherwise, enter the result from Worksheet A, Item 5.
2. Acceptance of Responsibility (See Chapter Three, Part E) Enter the applicable reduction of 2 or 3 levels. If no adjustment is applicable, enter “0”.
–
3. Offense Level Total (Item 1 less Item 2)
4. Criminal History Category (From Worksheet A or C) Enter the result from Worksheet C, Item 7, unless the defendant has no criminal history, and as directed at the bottom of Worksheet A, no Worksheet C is used and “I” is entered here.
5. Terrorism; Career Offender; Criminal Livelihood; Armed Career Criminal; Repeat and Dangerous Sex Offender (See Chapter Three, Part A, and Chapter Four, Part B) a. Offense Level Total If the provision for Career Offender (§4B1.1), Criminal Livelihood (§4B1.3), Armed Career Criminal (§4B1.4), or Repeat and Dangerous Sex Offender (§4B1.5) results in an offense level total higher than Item 3, enter the offense level total. Otherwise, enter “N/A”. b. Criminal History Category If the provision for Terrorism (§3A1.4), Career Offender (§4B1.1), Armed Career Criminal (§4B1.4), or Repeat and Dangerous Sex Offender (§4B1.5) results in a criminal history category higher than Item 4, enter the applicable criminal history category. Otherwise, enter “N/A”.
6. Guideline Range from Sentencing Table Enter the applicable guideline range from Chapter Five, Part A, in months.
to
7. Restricted Guideline Range (See Chapter Five, Part G) If the statutorily authorized maximum sentence or the statutorily required minimum sentence restricts the guideline range (Item 6) (see §§5G1.1 and 5G1.2), enter either the restricted guideline range or any statutory maximum or minimum penalty that would modify the guideline range. Otherwise, enter “N/A”.
to
Check here if §5C1.2 (Limitation on Applicability of Statutory Minimum Penalties in Certain Cases) and 18 U.S.C. § 3553(e) – “The Safety Valve” – are applicable.
8. Undischarged Term of Imprisonment; Anticipated State Term of Imprisonment (See §5G1.3) If the defendant is subject to an undischarged term of imprisonment, or an anticipated state term of imprisonment, check this box. Below list the undischarged/anticipated term(s), the applicable section of §5G1.3 and its direction or guidance as to whether the instant federal sentence is to be imposed to run concurrently or consecutively to the undischarged/anticipated term(s), and any sentence adjustment.
U.S. Sentencing Commission Worksheets (November 1, 2018)
Worksheet D — Determining the Sentence [Page 2 of 4] Defendant _____________________________________________
Docket Number ______________________________
9. Sentencing Options (See Chapter Five, Sentencing Table and §§5B1.1(a) and 5C1.1) Check the applicable box that corresponds to the Guideline Range entered in Item 6 or Item 7, if applicable. Zone A (See §§5B1.1(a)(1) & 5C1.1(a) & (b)) If checked, the following options are available: •
Fine (See §§5C1.1(b) & 5E1.2(a))
•
“Straight” Probation (See §§5B1.1(a)(1) & 5C1.1(b))
•
Imprisonment (See §5C1.1(a) & (c)(1))
Zone B (See §§5B1.1(a)(2) & 5C1.1(a) & (c)) If checked, the minimum term may be satisfied by: •
Imprisonment (See §5C1.1(a) & (c)(2))
•
Imprisonment of at least one month plus supervised release with a condition that substitutes community confinement or home detention for imprisonment (See §5C1.1(c)(2))
•
Probation with a condition that substitutes intermittent confinement, community confinement, or home detention for imprisonment (See §§5B1.1(a)(2) and 5C1.1(c)(3))
Zone C (See §5C1.1(a) & (d)) If checked, the minimum term may be satisfied by: •
Imprisonment (See §5C1.1(a) & (d)(1))
•
Imprisonment of at least one-half of the minimum term plus supervised release with a condition that substitutes community confinement or home detention for imprisonment (See §5C1.1(d)(2))
Zone D (See §5C1.1(a) & (f)) If checked, the minimum term is to be satisfied by a sentence of imprisonment
10. Length of Term of Probation (See §5B1.2) If probation is imposed, the guideline for the length of such term of probation is: (Check the applicable box) At least one year, but not more than five years if the offense level total is 6 or greater. No more than three years if the offense level total is 5 or less. U.S. Sentencing Commission Worksheets (November 1, 2018)
Worksheet D — Determining the Sentence [Page 3 of 4] Defendant _____________________________________________
Docket Number ______________________________
11. Supervised Release (See §§5D1.1 and 5D1.2) a. Imposition of a Term of Supervised Release: Ordered because required by statute (See §5D1.1(a)(1)). Ordered because a sentence of imprisonment of more than one year is imposed (See §5D1.1(a)(2)). Is not ordered although a sentence of more than one year is imposed, because it is not required by statute and the defendant likely will be deported after imprisonment (See §5D1.1(c)). Ordered because it may be ordered in any other case (See §5D1.1(b)). b. Length of Term of Supervised Release Check the Class of the Offense: Class A or B Felony: Two to Five Year Term (See §5D1.2(a)(1)) Class C or D Felony: One to Three Year Term (See §5D1.2(a)(2)) Class E Felony or Class A Misdemeanor: One Year Term (See §5D1.2(a)(3)) If a statutorily required mandatory minimum term of supervised release for the offense impacts the guideline range for the applicable Class of Offense above, also check this box, and list the statutory minimum term (See §5D1.2(c)): _____ years mandatory minimum term of supervised release If an offense in 18 U.S.C. § 2332b(g)(5)(B) that resulted in, or created a foreseeable risk of, death or serious bodily injury to another person; or if a sex offense, the term of supervised release will not be less than the minimum term established above, and may be up to life (See §5D1.2(b)). Policy Statement: If a sex offense, the statutory maximum term of supervised release is recommended.
12. Restitution (See §5E1.1) a. If restitution is applicable, enter the amount. Otherwise enter “N/A” and the reason:
b. Enter whether restitution is statutorily mandatory or discretionary:
c.
Enter whether restitution is by an order of restitution, or solely as a condition of supervision. Enter the authorizing statute:
U.S. Sentencing Commission Worksheets (November 1, 2018)
Worksheet D — Determining the Sentence [Page 4 of 4] Defendant _____________________________________________
Docket Number ______________________________
13. Fines (The Guideline Range for Fines for Individual Defendants) (See §5E1.2) a. Special Fine Provisions
Minimum
Maximum
Check box if any of the counts of conviction is for a statute with a special fine provision. (This does not include the general fine provisions of 18 USC § 3571(b)(2) & (d)). $
Enter the sum of statutory maximum fines for all such counts. b. Fine Table (§5E1.2(c)(3)) Enter the minimum and maximum fines.
$
$
c. Fine Guideline Range (Determined by the minimum of the Fine Table (Item 15(b)) and the greater maximum above (Item 15(a) or 15(b))).
$
$
d. Ability to Pay Check this box if the defendant does not have an ability to pay.
14. Special Assessments for Individual Defendants (See §5E1.3) Enter the total amount of the statutory special assessments required for all counts of conviction: • $100 for each felony count of conviction. • $25 for each Class A misdemeanor count of conviction. • While not subject to guideline sentencing, the special assessments for a Class B misdemeanor, and a Class C misdemeanor or infraction are $10 and $5 per count, respectively. $
TOTAL:
15. Factors That May Warrant a Departure (See §1B1.1(b)) Consider Chapter Five, Part H (Specific Offender Characteristics) and Part K (Departures), and other policy statements and commentary in the Guidelines Manual that might warrant consideration in sentencing. (See also the “List of Departure Provisions” included in the Guidelines Manual after the Index).
16. Factors That May Warrant a Variance (See §1B1.1(c)) Consider the applicable factors in 18 U.S.C. § 3553(a) taken as a whole.
Completed by _____________________________________________
Date _________________________
U.S. Sentencing Commission Worksheets (November 1, 2018)
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Starting at the End: The Court’s Charge to the Jury
Speaker:
Sarah Roland
903 N Elm St Ste 101 Denton, TX 76201 940.323.9305 phone 940.312.6830 fax sarah@sarahroland.com email www.sarahroland.com website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
_________________________________
STARTING AT THE END: THE COURT’S CHARGE TO THE JURY _________________________________
903 N. Elm St., Denton, TX 76201 sarah@sarahroland.com sarahroland.com (940) 323-9305
Note: Cases cited current through submission date.
I.
Introduction Handling appeals is wonderful. It makes you a better trial lawyer. It’s exciting to
find an error somewhere in the record and start writing the argument. But it can also be extremely frustrating. It’s frustrating when the error is deemed harmless. It’s frustrating when the appellate court cites waiver. That happens too often. But, some good news! Jury charge error is still alive and well and is required to be reviewed on appeal. Jury charge error is still regularly a point of error on appeal. 1 If you remember nothing else from this paper, just remember to object to the court’s charge every
chance you get. II.
Before you Begin, Start at the End It is commonly referred to with tiresome clichés such as “road map,”
“directions,” and “instructions” for the jury. It is familiar to every trial lawyer. The court’s charge to the jury is a specific set of legal instructions given by the judge. It is the law the jury will apply to the facts of the case. The court’s charge to the jury is where affirmative defenses, definitions, justifications, lesser-included offenses and limiting instructions are found. The trial judge is “ultimately responsible for the accuracy of the jury charge and accompanying instructions.”2 However, while the Code of Criminal Procedure imposes
Cases cited current through submission date. See Alkayyali v. State, __ S.W.3d __, No. 02-21-00197CR, 2023 WL 3017943 (Tex. App. – Fort Worth 2023) (reversing and remanding for undisputed jury charge error) 2 Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2009) 1
the duty of delivering the charge on the trial court, in reality the trial court typically has the lawyers draft and agree (as far as possible) upon a charge. Therefore, it is incumbent upon the criminal defense lawyer to begin every case with a draft of the charge. This means researching the law and, at a minimum, all applicable statutory defenses and justifications, long before trial. Doing so can help reveal the theme of the case and any potential minefields. Preparation is key. After all, success is determined long before you step foot in the courtroom. It is too late to start focusing on the jury charge at the close of evidence. Begin with the end in mind.3 III.
Initial Considerations Although the jury charge does not come until the very end of the case, it is a
mistake not to discuss the charge until that point. In jury selection, it is worthwhile to point out that the law applicable to the case at hand is so important that, before deliberations begin, the judge will not only provide the jurors with a copy of the law but also read the law to the jury. Tell the jury the law is that important. If possible, obtain a copy of a charge the judge has given in a similar case prior to the start of your case. Weave in some applicable portions of law, verbatim, in jury selection with the knowledge that it will be reinforced by the judge at the close of the case. Having correctly “predicted” what the judge will do when it comes jury charge time gives us credibility. Then, in closing, if you choose, remind the jury that you anticipated that the
Covey, The 7 Habits of Highly Effective People: Revised and Updated, p. 109 (Simon & Schuster, 2020) (Habit 2) 3
law would be just as discussed in jury selection. This is an especially valuable practice point for affirmative defenses, justifications and special jury instructions. IV.
Applicable Statutory Law
The Code of Criminal Procedure lays out the requirements for the jury charge. Specifically, articles 36.14 through 36.19 address different aspects of the court’s charge to the jury. Every criminal defense trial lawyer should be very familiar with these articles. Some are very straightforward. Some are more nuanced. They are all worthy of consideration, however, and will be addressed below. 1. Article 36.14: Charge of the Court Article 36.14 requires that before counsel argues to the jury in a criminal trial, “the judge shall…deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case.” Article 36.14 further specifically prohibits the trial court from commenting on the evidence “expressing any opinion as to the weight of the evidence, summing up the evidence, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.”4 This is, of course, because the trial court is required, by law, to be neutral and detached.
4
Tex. Code Crim. Proc. 36.14
An instruction, albeit facially neutral and legally accurate, may nevertheless constitute an improper comment on the weight of the evidence.5 That is because “[d]espite the legal accuracy of the instruction” it can improperly “single out a specific type of evidence”6 and “risk[s] impinging upon the ‘independence of the jury in its role as trier of the facts, a role long regarded by Texans as essential the preservation of their liberties.’” 7 A defendant is entitled to be convicted upon a correct statement of the law. When the trial court fails to correctly charge the jury on the applicable law, “the integrity of the verdict is called into doubt.”8 However, there are three circumstances when it is permissible for the charge to single out evidence. First, when the law identifies a statutory presumption, reference in the charge is permissible. For instance, in a deadly conduct prosecution, it would be proper for the charge to inform the jury that recklessness and danger may be presumed if the actor knowingly points a firearm at another whether or not the actor believed the firearm to be loaded. 9 Similarly, the trial court should instruct the jury on the statutory presumption of reasonableness in self-defense cases if applicable. 10 Second, the trial
Kirsch, 357 S.W.3d at 651; see also Brown v. State, 123 S.W.3d 794 (Tex. Crim. App. 2003) (holding it was an improper comment on the weight of the evidence in violation of Article 36.14 to instruct the jury that it could infer the defendant’s intent by his acts done and the words spoken but finding such error harmless) 6 Id. (internal citations omitted) 7 Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim. App. 2008) (internal citation omitted) 8 Green v. State, 476 S.W.3d 440, 453 (Tex. Crim. App. 2015, Richardson, J., dissenting) (internal citations omitted) 9 Tex. Penal Code § 22.05(c) 10 Tex. Penal Code § 9.32 5
court may instruct the jury about evidence that is admissible contingent upon certain predicate facts that are up to the jury to decide. The quintessential example of this is an article 38.23 instruction. Third, when the law directs the jury to attach a certain degree of weight or limited significance to certain evidence an instruction in the charge is proper. Limiting instructions, discussed infra, are a perfect example of the final scenario. Article 36.14 also addresses the role of the defense lawyer with regard to the court’s charge. Article 36.14 mandates that “[b]efore the charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same.” What is “reasonable” is subjective, though. It likely depends on the complexity of the case, nature of the offense, any defense, and the experience of the lawyer. Therefore, it is good practice to put on the record the precise time when you receive the initial charge and exactly how much time was allotted by the court to examine the charge. Always request more time if needed as the court’s charge to the jury is typically always a ripe area for potential appellate issues. Preservation of error in the court’s charge is also addressed in Article 36.14. At the outset, article 36.14 requires that the defense “shall present his objections thereto in writing, distinctly specifying each ground of objection.” However, it goes on to say that “[t]he requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the
court and the state’s counsel, before the reading of the court’s charge to the jury.” 11 Therefore, written objections simply are not necessary so long as the objection is reflected in the record. However, it is helpful and advisable, to write out all potential objections to the charge and special requests to be included in the charge before trial. After all, when the time comes for the charge conference, focus is typically already diverted to closing statement. A good practice point is to have a folder dedicated solely to the jury charge and include a list of potential objections and special requests, as well as supporting case law. This is an area where we can prepare well in advance when we have time to focus and be intentional. It is necessary that any objection to the court’s charge be sufficiently specific. For instance, requesting “the charge on self-defense, standard form” will not suffice to preserve error since there are several different types of self-defense.12 However, at one time the Court of Criminal Appeals held that “[t]he requested charge must only be sufficient to call the trial court’s attention to the omission in the court’s charge.”13 The better practice to avoid any waiver argument on appeal is obviously to make the objection(s) as specific as possible. However, be aware that when counsel undertakes “some responsibility for the jury instruction” the issue of judicial estoppel may prevent
Id.; see also Rojas v. State, 662 S.W.2d 466, 469 (Tex.App.-Corpus Christi 1983, pet. ref’d) (“Appellant’s objection to the charge was made after the court read the charge to the jury and the jury retired to the deliberation room. The objection, not having been made before the charge was read to the jury, is not timely made and cannot be considered on appeal.”) 12 Reece v. State, 683 S.w.2d 873 (Tex.App.-Houston [14th Dist.] 1984, no pet.) 13 Chapman v. State, 921 S.W.2d 694 (Tex. Crim. App. 1996) 11
the issue from being successfully litigated on appeal.14 This issue was recently addressed by the Court of Criminal Appeals in Ruffins, an aggravated robbery case involving an incorrect accomplice witness instruction.15 The accomplice witness instruction incorrectly required that the jury had to agree beyond a reasonable doubt that a particular person was in fact an accomplice. Trial counsel initially correctly requested a reasonable doubt instruction be included with the accomplice witness instruction – “And then ‘from all the evidence you must believe beyond a reasonable doubt that the Defendant is guilty – because there is nothing in the charge that gives them an instruction with respect to how they determine when someone is an accomplice, and it has to be done with “if you have a reasonable doubt or not,” in that respect.16 The court responded that such an instruction was in the charge – “it says in there they have to find that he is an accomplice beyond a reasonable doubt.” However, counsel [mistakenly] insisted that he did not think such an instruction was in the charge: “But I don’t think there’s been an instruction that they need to believe – when they consider accomplice, they have to agree beyond a reasonable doubt that he is an accomplice. I don’t think that’s in there.” 17 The State, defense counsel, and trial court went back and forth, but ultimately
Ruffins v. State, __ S.W.3d __, PD-0862-20, 2023 WL 2669657 at *6 (Tex. Crim. App. 2023) Id.; Tex. Code Crim. Proc. art. 38.14 16 Id. at *3; Tex. Code Crim. Proc. art. 38.14 17 Id. at *5. Defense counsel was clearly trying to request an instruction specifying there must be evidence corroborating the accomplice’s testimony if the jury had a reasonable doubt as to whether or not he was an accomplice. This is evidenced by defense counsel’s initial request to include an instruction “if you have a reasonable doubt or not.” 14 15
defense counsel said, “I’m good.” 18 It was because of this exchange, that the Court of Criminal Appeals held that appellant was estopped from thereafter claiming that the instruction was improper.19 Unquestionably, the judge carries the ultimate responsibility of instructing the jury on the law applicable to the case.20 Finally, and interestingly, regarding objections to the charge of the court, by the specific unambiguous terms of Article 36.14, only the defense can object to the charge; the State cannot. 21 2. Article 36.15: Requested Special Charges A special charge is simply a requested jury instruction that is not contained in the general charge of the court. Either the state or the defense is allowed to request a special charge according to Article 36.15. As with objections to the court’s charge under Article 36.14, Article 36.15 requires that the requested special charge be in writing. However, again, Article 36.15 also states that the writing requirement is satisfied if the request is dictated in the record in the presence of the state and the court. It is clear, then, that objections or special requests to the charge do not have to be in writing if they are clearly spoken into the record before the charge is read to the jury.22
Id. Id. at *6. 20 Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011) (recognizing and holding that “the judge’s duty to instruct the jury on the law applicable to the case [here an Section 8.07(b) instruction] exists even when defense counsel fails to object to inclusions or exclusions in the charge; this may require the judge to sua sponte provide the jury with the law applicable to the case) 21 The State can, however, ask for requested special charges under Article 36.15. See infra. 22 Rojas v. State, 662 S.W.2d 466, 469 (Tex. App. – Corpus Christi 1993, pet. ref’d) (the objection to the charge was made after the court read the charge to the jury and the jury retired to the deliberation 18 19
Article 36.15 also addresses both errors and omissions in the court’s charge. As long as the defense calls the trial court’s attention to the error and/or omission in the charge nothing further is required to properly preserve error.23 The ball is then in the trial judge’s court (pun intended). “[N]o exception by the defendant to the action of the court shall be necessary or required in order to preserve for review the error claimed in the charge.”24 However, again, it is good practice to have a list of all special requests and supporting case law on hand. 3. Article 36.16: Final Charge The charge is so important that the law requires it to be both read to the jury and given to the jury in writing for use during deliberations. The jury should be informed about this during jury selection, as discussed above. The requirement that the judge reads the final charge to the jury is contained in Article 36.16. Supplemental charges are also addressed in Article 36.16. Additionally, Article 36.27 provides that the court “shall answer any [jury] communication in writing.” There are only three situations in which a supplemental charge is permissible. A supplemental charge can be given based on (1) the improper argument of counsel; (2) on request of the jury; or (3) when the judge, in
room. The objection, having not been made before the charge was read to the jury, in not timely made and cannot be considered on appeal.) 23 Tex. Crim. Proc. art. 36.15; see also Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996) (“[U]nder art. 36.15, if the defendant requests a special charge no objection is required to preserve error. All that is necessary…is that the requested charge be in writing or dictated to the court reporter.”); Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996) (“…requested charge must only be sufficient to call the trial court’s attention to the omission in the court’s charge.”) 24 Id.
their discretion, permits the introduction of other testimony. 25 Other than these specific situations, the law does not permit the giving of supplemental charges. This doesn’t mean, of course, that the jury will not submit requests to see evidence or for clarification on the law thereby necessitating a supplemental charge. Many times, the answer to the jury’s questions will be along the lines of “you have been given the law” so as not to violate Article 36.14.26 If a supplemental charge is given, Article 36.16 directs that the defense shall present objections in the manner prescribed by Article 36.15. The most common potentially objectionable supplemental charge given is the Allen charge, or dynamite charge when the jury has expressed deadlock. 27 Dynamite charges are always potentially coercive. After all, the purpose of the dynamite charge is to “blow-up” the blockade to the verdict and get the jury to reach a decision, if at all possible. 28 An Allen charge is unduly coercive if it pressures the jury into reaching a particular verdict or improperly conveys the trial court’s opinion on the merits of the case.29 An Allen charge may be considered coercive in one of two ways: the language of
Tex. Crim. Proc. art. 36.16 See Harris v. State, __ S.W.3d __, 2022 WL 17684262 (Tex. App. – Houston [1st Dist.], pet. ref’d) (en banc) (finding that answering jury’s question – in reference to section 3, page 14, does the admitted commission of a crime, sale of a controlled substance, negate the basis of a claim of self-defense – would have drawn attention to a particular type of evidence in violation of Article 36.14) 27 Allen v. U.S., 164 U.S. 492 (1986) 28 See In Re Commitment of Jones, 650 S.W.3d 692) (Tex. App. – Fort Worth 2022, reh’g denied) (statements made in Allen charge, including that “if you can reconcile your differences and agree upon a verdict, I hope you will please do so,” was potentially coercive but finding that trial judge mitigated the possibly coercive effect) 29 West v. State, 121 S.W.3d 97, 107-108 (Tex. App. – Fort Worth 2003, pet. ref’d); see also Barnett v. State, 189 S.W.3d 272 (Tex. Crim. App. 2006) (finding that the trial court erred in conversing with two holdour jurors about whether they could change their votes) 25 26
an Allen charge may be coercive on its face or the charge may have a coercive effect “in in its context and under all the circumstances.”30 To determine whether the circumstances surrounding the giving of an Allen charge demonstrate actual jury coercion, courts have considered factors such as (1) the length of deliberations prior to the Allen charge; (2) the length of the trial; (3) the amount and complexity of the evidence involved; (4) the nature of the case; (5) whether the Allen charge was premature; (6) whether the jury was required to endure “marathon deliberations”; (7) the number of Allen charges given; (8) whether the Allen charge cautioned the jurors not to violate their conscience; (9) whether the trial court singled out or pressured the minority jurors; (10) the trial court’s knowledge of or inquiry into the jury’s numerical division; (11) the length of deliberations following the Allen charge; (12) the jury’s notes and requests to review evidence after the Allen charge; and (13) whether the jurors each affirmed the verdict upon polling. 31 4. Article 36.17: Charge Certified by Judge Article 36.17 is straightforward. It requires the final charge to be certified and filed among the papers in the case. This is obviously so the jury charge can be reviewed by the appellate court. This is also the reason that if multiple copies of the charge are given to the jury, the trial judge instructs the jury not to write on the original copy except
Lowenfield v. Phelps, 484 U.S. 213, 237, 108 S.Ct. 546, 550 (1988) Thetford v. State, 2021 WL 278913 at *14 (Tex. App. – Fort Worth 2021, pet. ref’d) (memorandum opinion, not designated for publication) (citing cases for each factor listed) 30 31
for the foreperson’s signature on the verdict form. All supplemental charges must be certified, too. 5. Article 36.18: Jury May Take Charge Article 36.18 is also simple. By its terms, the jury may take a copy of the charge to the jury room after it has been filed. The jury is not permitted to take any charge or part of a charge which was not given by the trial court. 32 As a practical matter, the jury should not even be aware that a special charge was requested and denied since the charge conference occurs outside the presence of the jury. Such a charge simply will not appear in the final version read to the jury. 6. Article 36.19: Review of Charge on Appeal Error in the jury charge is unique among other possible trial errors in that the legislature codified the standard of review on appeal for such error in the Code of Criminal Procedure. Article 36.19 specifically states that the judgment shall not be reversed based on error stemming from a violation of the preceding Articles “unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” A more detailed discussion of the standard of review on appeal for errors in the court’s charge follows. It cannot be said enough – object! V.
32
Basics of a Jury Charge
Tex. Crim. Proc. art. 36.18
There are several basic instructions contained in every jury charge. Some of these instructions are the constitutional principles upon which our criminal justice system is premised – the presumption of innocence, proof beyond a reasonable doubt, and the right to remain silent. As discussed above, the judge will read all the instructions to the jury. Listen and read the jury charge carefully. This is not the time to go on autopilot or zone out. Pay special attention to these instructions regarding the presumption of innocence, proof beyond a reasonable doubt, and the right to remain silent. Discuss these concepts in jury selection and prime the jury for the law they will hear from the judge prior to deliberations. The words are powerful, they help the accused, and they will have instant credibility with the jury having come from the judge. The charge will generally track section 2.01 of the Texas Penal Code which sets out the constitutional requirements of the presumption of innocence and proof beyond a reasonable doubt: All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested,
confined,
or
indicted
for,
or
otherwise charged with, the offense gives rise to no inference of guilt at his trial.
The
charge
also
informs
the
jury
that
the
charging
instrument
(indictment/information) itself is no evidence of guilt.33 The charge should also specifically tell the jury that the accused is presumed innocent of the charge(s), that all persons are presumed innocent, and that the law does not require the accused to prove his innocence or produce any evidence at all. Finally, the charge should direct the jury that the presumption of innocence alone is sufficient to acquit. Along with the presumption of innocence, the jury will be instructed on the Fifth Amendment Constitutional right to remain silent. The jury will be told that an accused’s decision not to testify cannot be held against him and is no evidence of guilt. The jury will be told not to guess, speculate, allude to or even talk about what the accused might have said had he chosen to testify. The charge should also tell the jury that the burden of proof throughout the trial is always on the state and that the state is required to prove every element of the offense beyond a reasonable doubt. The charge directs the jury to find the accused not guilty if the state does not prove every element of the offense beyond a reasonable doubt. However, the charge is not required to include a definition of “reasonable doubt.”34
However, a trial court is probably not required to tell the jury that the charging instrument is not evidence. See Committee on Pattern Jury Charges – Criminal – of the State Bar of Texas, Texas Criminal Patter Jury Charges C2.1 (2011) (citing Magness v. State, 244 S.W.2d 810 (Tex. Crim. App. 1952) (“Though the trial court might well have given the requested charge [that the information filed against him was no evidence of his guilt], we are unable to agree that his failure to do so was prejudicial to the rights of appallant.”)). The Committee on Pattern Jury Charges – Criminal believes such an instruction should be included in the court’s charge, though. Id. 34 Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) 33
And courts have held it is not error to distinguish beyond a reasonable doubt from “all possible doubt.” 35 In addition to the aforementioned constitutional principles, there are several other basic topics that should be addressed in every jury charge. For instance, a correct charge will always include an application paragraph applying the law to the facts of the case.36 The purpose of the application paragraph is to apply the relevant law, definitions found in the abstract, and general legal principles to the particular facts of the case.37 Because the application paragraphs specify the factual circumstances under which the jury should convict or acquit they are the heart and soul of the jury charge.38 A charge that does not apply the law to the facts fails to lead the jury to the threshold of its duty: to decide those factual issues.39 It will also instruct the jurors that they are the exclusive fact finders; that they judge the believability of witnesses and alone determine the weight to be given to their testimony.40 The charge will also inform the jury what the evidence is and is not. For instance, statements made by the lawyers are not evidence. Conversely, evidence is
Infante v. State, 397 S.W.3d 731 (Tex. App. – San Antonio 2013, no pet.); Rodriguez v. State, 96 S.W.3d 398, 405 (Tex. App.-Austin 2002, pet. ref'd) (where identical language submitted there wasn’t even “some harm” from the instruction); Watson v. State, No. 03-19-00015-CR (Tex. App. – Austin 2019) (same). 36 Plata v. State, 926 S.W.2d 300 (Tex. Crim. App. 1996) 37 Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) 38 Id. at 367. (internal citation omitted) 39 Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977) 40 Articles 38.04 and 36.13 of the Texas Code of Criminal Procedure address the role of jurors as judges of fact. 35
testimony and admitted exhibits. Sometimes the charge will inform the jury about their access to evidence in accordance with articles 36.25 and 36.28 of the Code of Criminal Procedure. The charge will also lay out some ground rules for deliberations and inform the jurors how to complete the verdict forms. VI.
Other Instructions
Typically, judges have standard jury instructions pre-prepared in accordance with the foregoing and simply add to said instructions. What follows are some of the other instructions that are common in the court’s charge to the jury. a. Defensive Issues It is well-settled that a trial court must instruct the jury on all of the law applicable to the case.41 An accused is entitled to an instruction on every defensive or mitigating issue raised by the evidence.42 This is true regardless of whether the evidence is strong or weak, un-impeached or contradicted and regardless of whatever the trial judge may think about the credibility of the evidence.43 This rule is designed to insure that the jury, not the judge, will decide the relative credibility of the evidence.44 But if the defensive Tex. Code. Crim. Proc. art. 36.14 Arnold v. State, 742 S.W.2d 10 (Tex. Crim. App. 1987); Williamson v. State, 672 S.W.2d 484 (Tex. Crim. App. 1984); Moon v. State, 607 S.W.2d 569 (Tex. Cr. App. 1980); Garcia v. State, 605 S.W.2d 565 (Tex. Cr. App. 1980); Warren v. State, 565 S.W.2d 931 (Tex. Cr. App. 1978); Sanders v. State, 707 S.W.2d 78 (Tex. Crim. App. 1986); Rogers v. State, 550 S.W.3d 190 (Tex. Crim. App. 2018) (trial court’s refusal to instruct on necessity and self-defense was harmful) 43 Arnold, supra.; Warren, supra.; Sanders, supra.; Shaw v. State, 510 S.W.2d 926 (Tex. Cr. App. 1974); Perez v. State, 172 S.W.2d 314 (Tex. Cr. App. 1943) 44 Jenkins v. State, 468 S.W.3d 656 (Tex. App. – Houston [14th Dist.] 2015, pet. dismissed) (in illegal voting case, error to not give requested mistake of fact defensive instruction where warranted by the evidence and listed in the Penal Code even though such an instruction also negates an element of the State’s case) 41 42
theory is not explicitly listed in the penal code – if it merely negates an element in the State’s case, rather than independently justifying or excusing the conduct – the trial judge should not instruct the jury on it. 45 However, article 36.14 imposes no sua sponte duty on the trial court to instruct the jury on unrequested defensive issues. 46 Therefore, it is incumbent upon the practitioner to always request instructions on any potentially applicable defenses. However, if the trial court does sua sponte issues a defensive instruction but fails to properly apply it then it is error even if the defendant does not object.47 To fail to instruct the jury on the law applicable to a particular case, when requested to do so, is error. 48 Therefore, it is vitally important to think about the charge at the beginning of a case in order to formulate special requested defensive instructions. b. Lesser-Included Offense Instructions Article 37.09 of the Code of Criminal Procedure provides the statutory definition of a lesser-included offense. An offense is a lesser included offense if: (1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
Id. (internal citation omitted) Posey v. State, 966 S.W.2d 57, 59 (Tex. Crim. App. 1998) 47 Mendez v. State, 545 S.W.3d 548 (Tex. Crim. App. 2018) 48 Trevino v. State, 100 S.W.3d 232 (Tex. Crim. App. 2003) (even though jury rejected defensive issue of self-defense, defendant was still entitled to sudden passion instruction at punishment and harmful to not include such an instruction) 45 46
(2) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public
interest
suffices
to
establish
its
commission; (3) It differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) It consists of an attempt to commit the offense
charged
or
an
otherwise
included
offense. Analysis of the above criteria was the basis for the Court of Criminal Appeals determining that bodily-injury assault is not a lesser-included offense of occlusion assault when the disputed element is the injury because the statutorily specified injury of impeding normal breathing or blood circulation is exclusive of other bodily injuries.49 It is important to know from the very beginning if you will be requesting an instruction on a lesser-included offense. Lesser-included offense instructions pose a unique decision – give the jury several options and hope for a compromise, or try the
Ortiz v. State, 623 S.W.3d 804 (Tex. Crim. App. 2021) (noting that this holding does not foreclose all lesser-included offense instructions for occlusion by assault – where relationship is at issue or if evidence shows attempted) 49
case on an all-or-nothing basis? If you think about the jury charge first, you will be able to strategically tailor [at least certain aspects of] the trial to the end result – a special requested charge on a lesser-included offense. Lesser-included offense instructions are not automatically included in the court’s charge. Such a charge is required if the offense constitutes a lesser-included offense, and the lesser included offense must be raised by the evidence at trial.50 Anything more than a scintilla of evidence from any source is sufficient to entitle a defendant to submission of a lesser-included offense. 51 A defendant’s testimony alone is sufficient to raise the issue entitling him to a charge on a lesser-included offense. 52 Appellate courts “use a two-step analysis to determine if a defendant is entitled to a lesser-offense instruction.”53 First, appellate courts “compare the statutory elements of the alleged lesser offense and the statutory elements and any descriptive averments in the indictment.”54 Next, appellate court must determine if there is “evidence from which a rational jury could find the defendant guilty of only the lesser offense.”55 Schweinle v. State, 915 S.W.2d 17, 18 (Tex. Crim. App. 1996); Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981) 51 Id.; See also Wade v. State, __ S.W.3d __ 2022 WL 1021056 (Tex. Crim. App. 2022) (finding that more than a scintilla of evidence existed – through lay opinion testimony – from which a jury could have rationally doubted that defendant caused serious permanent disfigurement, such that instruction on lesser-included offense of assault was warranted) 52 Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985) 53 Melton v. State, 660 S.W.3d 199, 205 (Tex. App. - Austin 2022, pet. ref’d) (internal citation omitted) (holding that lesser-included criminally negligent homicide instruction in murder case was warranted but finding error in not submitting instruction harmless) 54 Id. 55 Id. 50
Either the state or the defense may request an instruction on a lesser-included offense when it is appropriate to do so.56 There is even some authority upholding a trial court’s sua sponte submission of a lesser-included instruction in the absence of a request from either side.57 When inclusion of a lesser-included offense is incorrectly refused by the trial judge, a finding of harm is essentially automatic, according to the Court of Criminal Appeals.58 c. Limiting Instructions The basis for limiting instructions is Rule 105 of the Texas Rules of Evidence. By its terms evidence can be admissible for a limited purpose or against a particular party. Most commonly, a limiting instruction is required where the State offers extraneous offense evidence. There are other situations wherein limiting instructions are appropriate, too.59 Even if the defense does not request a limiting instruction either
Fransaw v. Lynaugh, 810 F.2d 518, 529 (5th Cir. 1987); Willis v. State, 761 S.W.2d 434, 436 (Tex.App.Houston [14th Dist.] 1988, pet. ref’d) (a lesser included offense instruction may be submitted over the defendant’s objection) 57 McQueen v. State, 984 S.W.2d 712, 717 (Tex.App.-Texarkana 1998, no pet.); Hicks v. State, 372 S.W.3d 649 (Tex. Crim. App. 2012) (lesser-included offense of reckless injury to a child submitted over objection of defense and defendant convicted of lesser-included offense) 58 Saunders v. State, 913 S.W.2d 564, 571 (Texas. Crim. App. 1995); see also Jokel v. State, 646 S.W.3d 873 (Tex. App. – Eastland 2022, pet. ref’d) (holding that aggravated assault was lesser included offense of burglary, defendant was entitled to jury instruction on that lesser, and the error in failing to so instruct jury was harmful to defendant) 59 Evans v. State, 500 S.W.2d 846, 850 (Tex. Crim. App. 1973) (co-defendant’s confession may not be considered as evidence of a defendant’s guilt, and an appropriate limiting instruction should be given in that instance); offense admitted to prove intent, knowledge, etc.) 56
the State can make the request for such an instruction or the trial court can decide to include the limiting instruction.60 The limiting instruction must be requested and read to the jury at the time the jury first hears the evidence pertaining to the instruction and every time thereafter. A limiting instruction is required in the charge when evidence has been admitted for only a limited purpose. 61 This is true regardless of whether the limiting instruction occurs in a guilt or punishment phase of a trial. 62 However, the court is under no obligation to include a limiting instruction in the charge where such an instruction was not requested when the evidence was first presented.63 In such an instance, the evidence is admissible for all purposes.64 This is so because Texas courts have frequently reasoned that the decision of whether to request a limiting instruction concerning the proper use of certain evidence, including extraneous offenses, may be a matter of trial strategy.65 Additionally, “this doctrine is a sensible one because otherwise a jury might sit through
See Yepez v. State, __ S.W.3d __, 2022 WL 18163472 (Tex. App. – Houston [1st Dist.], no pet.) (in an indecency with a child case, the state requested and trial court included a limiting instruction on use of extraneous offense evidence in jury charge over defendant’s objection and such inclusion was not harmful to the defendant) 61 Johnson v. State, 509 S.W.2d 639 (Tex. Crim. App. 1974); Hitcock v. State, 612 S.W.2d 930 (Tex. Crim. App. 1981); Escovedo v. State, 902 S.W.2d 109 (Tex.App.-Houston [1st Dist.] 1995) 62 Smith v. State, No. PD-0715-17 (Tex. Crim. App. 2019) (failure to properly limit an 8.04(a) voluntary intoxication instruction to extraneous conduct in punishment trial required reversal) 63 Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007); Williams v. State, 273 S.W.3d 200 (Tex. Crim. App. 2008) 64 Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001) 65 See, e.g., Ryan v. State, 937 S.W.2d 93, 104 (Tex.App.-Beaumont 1996, pet. ref'd) (citing Blevins v. State, 884 S.W.2d 219, 230 (Tex. App.-Beaumont 1994, no pet.)); but cf., Yepez, __ S.W.3d __, 2022 WL 18163472, supra 60
most of a trial under the mistaken belief that certain evidence is admissible for all purposes when, in fact, it is not.”66 For purposes of preserving error if the trial court refuses to provide a limiting instruction, request a special charge under Article 36.15 and also object to the omission of said instruction under Article 36.14. Again, be prepared with an appropriate limiting instruction that can be read into the record or filed with the court. Bottom line: object and request every time. d. Exclusionary Rule The Texas exclusionary rule, embodied in “article 38.23(a), is mandatory. Article 38.23(a) provides that when evidence is presented at trial that raises an issue of whether evidence was legally obtained, “the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of the Article, then and in such event, the jury shall disregard any such evidence obtained.” The wording is absolute. Therefore when an issue of fact is raised, a defendant has a statutory right to have the jury charged accordingly.”67 Only “when there exists a factual issue that evidence was obtained in violation of the Constitution or law of the State of Texas, or of the Constitution or laws of the United States of America” is the exclusionary instruction required.68 A defendant must show three things in order to receive an article 38.23 jury
See Jackson v. State, 992 S.W.2d 469, 477 (Tex. Crim. App. 1999) Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002) 68 Maldonado v. State, 998 S.W.2d 239, 246 (Tex. Crim. App. 1999) 66 67
instruction: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.69 e. Voluntariness of Confession Article 38.21 provides that a statement of an accused may be used in evidence only if it appears that the same was freely and voluntarily made without compulsion or persuasion. Article 38.22 of course deals with police overreaching and Miranda in the course of custodial interrogation. It also addressed voluntariness more generally. That is the discussion that follows. Voluntariness under Article 38.22 Section 6 applies to custodial and noncustodial statements because it provides only “voluntary statements” may be admitted. 70 As Professor Dix has noted, "evidence of a defendant's psychological abnormality" (such as Connelly's evidence of hallucinations and following God's command) "has its full logical relevance" under Texas law.71 The Court of Criminal Appeals noted that the
potential
encompassed
by
"involuntary"
fact
scenarios
Articles
and
38.22
38.21
are
broader in scope than those covered by the Due
Madden v. State, 242 S.W. 3d 504, 510 (Tex. Crim. App. 2007) Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008) 71 Id. at 172 (internal citation omitted) 69 70
Process Clause or Miranda. Although this Court has
held
that
youth,
intoxication,
mental
retardation, and other disabilities are usually not enough, by themselves, to render a statement inadmissible
under
factors
a
that
Article
jury,
38.22,
armed
with
they a
are
proper
instruction, is entitled to consider. 72 The specific procedure for addressing the issue of voluntariness of an accused’s statement is addressed in Section 6. The issue is first litigated in front of the court in a hearing outside the presence of the jury. The court is required to make an independent finding as to whether the statement was made under voluntary conditions. If the court finds the statement voluntarily made and held admissible the court must enter an order stating its conclusion along with specific findings of fact. If the court finds the statement voluntary the issue can still be litigated in front of the jury. As long as some evidence is presented to the jury which raises the issue of voluntariness the the court must so instruct the jury.73 The specific instruction comes from Section 6: Unless the jury believes beyond a reasonable doubt that the statement was voluntarily made, the jury shall not consider such statement for 72 73
Id. at 173 (internal citation omitted) Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994)
any purpose nor any evidence obtained as a result thereof. Article 38.22, § 6 is "the law applicable" to any case in which a "question" is raised and litigated as to the "general" voluntariness of a statement of an accused. 74 However, defense counsel should always be sure to request the voluntariness instruction pursuant to Section 6 where the issue has been litigated in order to obtain the most favorable harm analysis under Almanza. 75 f. Special Issues – Deadly Weapons There are certain special issues, for example, whether or not a deadly weapon was used or exhibited, that are not elements of an offense. “Deadly weapon” as defined in Penal Code Section 1.07(a)(17)(B), means “anything capable of causing death or serious bodily injury.” Of course, a deadly weapon finding has a negative impact on a defendant’s eligibility for community supervision, parole, and mandatory supervision. So, the question thus becomes when, and how, to submit this special issue to the jury. The state, of course, is not entitled to a jury charge on a deadly weapon unless an accused is actually given notice by indictment or otherwise of the alleged use of a deadly weapon.76 Even if a separate special issue regarding the use of deadly weapon is
Oursbourn, 259 S.W.3d at 180. Oursbourn, 259 S.W.3d at 175-176. 76 Ex parte Patterson, 740 S.W.2d 766 (Tex. Crim. App. 1987) 74 75
not submitted to the jury, as long as it was alleged in the indictment and the jury finds the defendant guilty as charged, the trial court can still enter a deadly weapon finding. 77 The Court of Criminal Appeals addressed the proper place for the deadly weapon special issue in Hill v. State, 913 S.W.2d 581, 586 (Tex. Crim. App. 1996). In Hill, the Court noted that Article 37.07 of the Code of Criminal Procedure implicitly requires the deadly weapon issue to be submitted at the guilt/innocence stage so that the trial court will know which parole law instruction to give the jury during the punishment phase. The better practice is to submit the deadly weapon special issue charge at the guilt/innocence phase of the trial.78 There are some weapons that are per se deadly weapons. But, by statute a motor vehicle is not a deadly weapon per se, but can be found to be a deadly weapon if it is used in a manner that is capable of causing death or serious bodily injury.79 The Court of Criminal Appeals has expressed rejected the argument that all felony driving while intoxicated cases warrant an automatic or per se deadly weapon finding. 80 The Court has recognized that a deadly weapon finding in a driving while intoxicated case is “dependent upon specific testimony in the record about the manner of use.”81 Evidence of the driver’s intoxication and the fact of a collision alone would not support a deadly Edwards v. State, 21 S.W.3d 625 (Tex.App.-Waco 2000) Hill v. State, 913 S.W.2d 581, 586 (Tex. Crim. App. 1996) 79 Couthren v. State, 571 S.W.3d 786, 790 (Tex. Crim. App. 2019) (finding insufficient evidence existed to support entering a deadly weapon finding with regard to felony conviction for driving while intoxicated, based on defendant’s manner of driving before and at the time of impact with pedestrian) 80 Id. (internal citation omitted) 81 Id. 77 78
weapon finding absent evidence that the vehicle was driving in a deadly manner during the commission of the offense.82 VII. Defining Terms in the Charge The trial court is required to give the jury a written charge setting forth the law applicable to the case.83 This requires that the jury be instructed concerning each element of the offense or offenses charged. It also requires that each statutory definition that affects the meaning of an element of the offense be given to the jury.84 As a general matter, definitions for terms that are not statutorily defined are not considered to be the “applicable law” under Article 36.14, and it is thus generally impermissible for the trial court to define those terms in the jury instructions.85 But if a phrase, term, or word is statutorily defined, the trial court must submit the statutory definition to the jury. 86 However, only the applicable portions of any definition should be included in the charge.87 A trial court generally errs if it goes beyond the statutory definition.88 Even a
Id. Tex. Crim. Proc. art. 36.14 84 42 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure 36.11, at 536 (Texas Practice 1995) 85 Green v. State, 476 S.W.3d 440 (Tex. Crim. App. 2015) (trial court’s provision of non-statutory definitions of “penetration” and “female sexual organ” was improper but finding error harmless); Bethel v. State, __ S.W.3d __, No. 07-21-00297-CR, 2023 WL 2402355 (Tex. App. – Amarillo 2023, reh’g denied) (trial court was correct not to give a definition of “same scheme or course of conduct” and “criminal transaction” in charge as those terms are not defined in the Penal Code and there is no authority establishing that the terms acquired a special legal or technical meaning) 86 Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012); Walters v. State, 247 S.W.3d 204, 214 (Tex. Crim. App. 2007) 87 Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994) (only the portion of the definitions of culpable mental state that applies to the case should be included in the charge) 88 Wright v. State, 704 S.W.2d 129, 131 (Tex.App.-Corpus Christi 1986, reh’g denied); Kirsch, 357 S.W.3d 645 (jury instruction defining the word “operate” was error) 82 83
judge’s innocent attempt to provide clarity for the jury by including a neutral instruction can result in an impermissible comment on the weight of the evidence because the instruction “singles out a particular piece of evidence for special attention” which the jury may then focus on as guidance from the judge. 89 Regarding undefined terms, section 311.011 of the Government Code provides that statutorily undefined words and phrases shall be “construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning …shall be construed accordingly.” On the other hand, although it is generally impermissible to instruct on the meanings of terms that are not statutorily defined, 90an exception to that general rule exists for “terms which have a known and established legal meaning, or which have acquired a peculiar and appropriate meaning in the law, as where the words used have a well-known common law meaning.”91 For example, it is error for a trial court to include a definition of “affirmative links” in a jury charge.92 Whereas “possession” is specifically defined in the Penal Code “affirmative links” is not so defined. Rather, an analysis of affirmative links “is only a
Beltran De La Torre v. State, 583 S.W.3d 613 (Tex. Crim. App. 2019) (internal citation omitted) Sharif v. State, 640 S.W.3d 636 (Tex. App. – Houston 2022 [14th Dist.], no pet.) (trial court erroneously included, over objection, definition of “premises” in charge in felon in possession of a firearm case but such error was harmless since the definition the trial court included almost exactly matches the commonly understood meaning of the term) 91 Green, 476 S.W.3d at 445 (Tex. Crim. App. 2015) (quoting Medford v. State, 13 S.W.3d 769, 772) (Tex. Crim. App. 2000)) 92 Deener v. State, 214 S.W.3d 552, 530 (Tex.App.-Dallas 2007, reh’g overruled) 89 90
shorthand expression for evaluating the sufficiency of the evidence.” 93 “Texas courts are forbidden from instructing the jury on any presumption or evidentiary sufficiency rule that does not have a statutory basis.” 94 The same holds true for an instruction on “joint possession” and “mere presence.”95 VIII. Jury Unanimity The United States Supreme Court has confirmed that the “Sixth Amendment’s unanimity requirement applies to state and federal criminal trial equally.”96 Texas statutory and constitutional law requires a unanimous jury verdict in all criminal cases.97 More specifically, “the jury must be unanimous in finding every constituent element of the charged offense in all criminal cases.98 The requirement is a complement to and helps in effecting the beyond a reasonable doubt standard.99 At a very basic level it means that every juror must agree that the accused committed the same, single, specific criminal act. When the State charges different criminal acts, regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must
Id. Id. at 529 95 Beltran De La Torre, 583 S.W.3d 613 (jury instruction on joint possession was an impermissible comment on the weight of the evidence and a defendant is not entitled to a jury instruction on the defensive issue of mere presence merely because the theory is raised at trial) 96 Ramos v. Louisiana, __ U.S. __, 140 S.Ct. 1390, 1397, 206 L.Ed.2d 583 (2020) 97 Tex. Code Crim. Proc. art. 36.29, 37.02, 37.03, 45.034-36; Tex. Const. Amend. Art. V, sec. 13 98 Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) (internal citation omitted) 99 See United States v. Gipson, 553 F.2d 453, 457 n. 7 (5th Cir.1977) 93 94
be instructed that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one of these criminal acts.100 The unanimity requirement is not violated by instructing the jury on alternate theories of committing the same offense, in contrast to instructing the jury on two separate offenses involving separate incidents.101 To guarantee unanimity when the State is not required to elect between aggravating circumstances, “the jury must be instructed that it must unanimously agree on one incident of criminal conduct (or unit of prosecution), based on the evidence, that meets all of the essential elements of the single charged offense beyond a reasonable doubt.102 Often times, unanimity issues are difficult to spot. The most common types of cases in which jury unanimity is most frequently an issue are sexual offenses because there are typically multiple counts and/or multiple alleged acts within counts. That is why it cannot be overstated that preparation at the outset of a case is absolutely necessary. And if there is a question about whether to object or not, just object. IX.
Nature of the Conduct v. Result of the Conduct v. Circumstances Surrounding the Conduct Section 6.03 of the Penal Code sets out four culpable mental states –
intentionally, knowingly, recklessly, and criminally negligently; two possible conduct elements – nature of conduct and result of conduct; and the effect of the circumstances Ngo v. State, 175 SW 3d 738, 744 (Tex. Crim. App. 2005); Dunham v. State, __ S.W.3d __, No. PD0831-18 (Tex. Crim. App. 2023) (no requirement that jury be unanimous on which of the 12 statutorily described deceptive business practices the defendant engaged in) 101 Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004) (internal citation omitted) 102 Saenz v. State, 451 S.W.3d 388, 390 (Tex. Crim. App. 2015) (internal citation omitted) 100
surrounding the conduct. In a jury charge, the language in regard to the culpable mental state must be tailored to the conduct elements of the offense. 103 When specific acts are criminalized because of their very nature, a culpable mental state must apply to the committing act itself. 104 On the other hand, unspecified conduct that is criminalized because of its result requires culpability as to that result.105 A trial court errs when it fails to limit the language in regard to the applicable culpable mental states to the appropriate conduct element.106 For example, murder is a “result of conduct” offense. In Campbell, the defendant claimed he accidentally killed his victim during erotic asphyxiation (hypoxyphilia). The trial court erred when it submitted a jury definition of “intentionally” that included language pertaining to the defendant’s “nature of conduct” (i.e. instructing the jury to convict if they believed the defendant intentionally choked the victim rather than intentionally killed the victim).107 However, the error was determined to be harmless. X.
Preserving Error As a threshold matter, all alleged jury charge errors must be considered on
appellate review regardless of preservation in the trial court.108 Failure to properly
Price v. State, 457 S.W.3d 437 (Tex. Crim. App. 2015); see also Alvarado v. State, 704 S.W.2d 36, 38-40 (Tex. Crim. App. 1985) (holding that the trial court erred in failing to tailor the culpable mental states to the result of conduct for the result-oriented offense of injury to a child) 104 McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989) 105 Id. 106 Id. (internal citation omitted) 107 Campbell v. State, __ S.W.3d __, 2022 WL 4360671 (Tex. Crim. App. 2022) 108 Kirsch, 357 S.W.3d at 649 (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)) 103
preserve error, however, affects the harm analysis. To properly preserve error, all objections to the charge must be made before the charge is read to the jury. 109 If you forget to make an objection until the jury is being led out, ask to approach. Make the objection on the record. Just be sure it’s done prior to the charge being read. As discussed previously, the Code of Criminal Procedure provides two ways to object to the court’s charge to the jury. 110 One way, according to Article 36.14, is to object to it on the basis of either an omission or an inclusion of something that does not belong. The other, under Article 36.15, is to request a special instruction. In Almanza, the Court of Criminal Appeals held that Article 36.19 of the Texas Code of Criminal Procedure prescribes the manner in which jury charge error is reviewed on appeal.111 The degree of harm that must be present to require reversal of a case depends upon whether the error was preserved or unpreserved. Therefore, the first step is to determine if the error was preserved. Concerning error that was preserved at trial by a timely and specific objection, such error must have been “calculated to injure the rights of [the] defendant.” 112 In other words, a defendant must have suffered “some” actual, rather than theoretical, harm from the error.113 However, the Court of Criminal Appeals has held that in the context of Almanza, supra, and Article 36.19, supra, the presence of any harm, regardless Rojas v. State, 662 S.W.2d 466, 469 (Tex.App.-Corpus Christi 1983, pet. ref’d) Vasquez v. State, 919 S.W.2d 433 (Tex. Crim. App. 1996) 111 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) 112 Tex. Crim. Proc. art. 36.19; Almanza, supra, at 171 113 Id. 109 110
of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction.114 Therefore, cases involving preserved charging error will be affirmed only if no harm has occurred.115 When charge error has not been preserved at trial by a timely and specific objection, a greater degree of harm is required to warrant reversal. “Egregious” harm is required. “Errors which result in egregious harm are those which affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. As in the case of assaying harm after jury charge error, the Court of Criminal Appeals has ruled that neither an Appellant/Defendant nor the State bears the burden of persuasion to show harm following non-constitutional error under Rule 44.2(b). 116 In this regard, the Court of Criminal Appeals in Johnson followed its prior decision in Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000), wherein the Court explained that: [w]e do not resolve the issue by asking whether the appellant met a burden of proof to persuade us that he suffered some actual harm, as the dissent would have it. No party should have a burden to prove harm from an error, and there
Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (“[A]ny harm, regardless of the degree, which results from the preserved charging error, is sufficient to require reversal.”) 115 See Id. at 171 116 Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001); Vann v. State, 216 S.W.3d 881 (Tex.App.— Fort Worth 2007, no pet.) 114
ordinarily is no way to prove ‘actual’ harm. Burdens and requirements of proving actual facts are appropriate in the law of evidence, but they have
little
meaning
for
the
harmless-error
decision. … The function of a party carrying the burden is simply to suggest, in light of that record, how prejudice may or may not have occurred. At that point, the court makes its own assessment as to what degree of likelihood exists as to that prejudicial or non-prejudicial impact and then applies
to
that
assessment
the
likelihood-
standard of the particular jurisdiction.” 117 And subsequently, in Warner v. State, the Court of Criminal Appeals specifically addressed burden allocation in a harm analysis: To dispel any lack of clarity in our cases, we affirm that burdens of proof or persuasion have no
117
place
in
harm
analysis
Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000)
conducted
under
Almanza. Because the Court of Appeals placed a burden of proof on the appellant, we shall remand the case to the Court of Appeals for a review of the record, giving consideration to the fact that neither party has a burden to show harm. 118 In assessing any harm that occurred, the reviewing court considers several factors including the charge as a whole, the state of the evidence, including the weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole.119 XI.
Conclusion Whether it is true or not, to a jury, the trial judge is the foremost authority on
the law. Juries look to the judge for guidance and see the judge as the smartest person in the room. After all, the judge is giving the jury instructions from the moment they walk into the courtroom, and all parties treat the court with reverence. If it is written or spoken by the judge it is regarded as the truth. Jury instructions from the judge are the judicial gospel to the jury. Therefore, we need our hand in its drafting so that the judicial gospel the jury hears from the bench will actually be one written by you. And above all, if you think you should object, object!
245 S.W.3d 458 (Tex. Crim. App. 2008) Almanza, 686 S.W.2d at 171; Rodriguez v. State, 90 S.W.3d 340, 360-1 (Tex.App.—El Paso 2001, pet. ref’d) 118 119
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
5th Circuit Update Speaker:
Co-Author:
Hon. Henry Bemporad United States District Court 655 E Cesar E Chavez Blvd San Antonio, TX 78206 210.472.6363 phone 210.472.4454 fax henry_bemporad@txwd.uscourts.gov email
Kristin Kimmelman
SUPERVISORY ASSISTANT FEDERAL PUBLIC DEFENDER
OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TEXAS
Co-Author:
Carl Hennies
ASSISTANT FEDERAL PUBLIC DEFENDER
OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TEXAS
Co-Author:
Amanda Bradley
RESEARCH AND WRITING SPECIALIST
OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TEXAS
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Significant Decisions IN THE FIFTH CIRCUIT COURT OF APPEALS, JANUARY 2022 TO MARCH 2023
Kristin Kimmelman SUPERVISORY ASSISTANT FEDERAL PUBLIC DEFENDER
Carl Hennies
Amanda Bradley
ASSISTANT FEDERAL PUBLIC DEFENDER
RESEARCH AND WRITING SPECIALIST
OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TEXAS
TABLE OF CONTENTS I.
Bail and Detention ............................................................................ 2
II.
Suppression ....................................................................................... 2
III.
Guilty Plea ....................................................................................... 15
IV.
Trial.................................................................................................. 18 Pretrial Matters ................................................................. 18 Jury Instructions ............................................................... 27 Evidentiary Issues ............................................................. 29 Sufficiency of Evidence/Proving an Offense ..................... 37
V.
Miscellaneous Trial Matters ........................................................... 43
VI.
Categorical Approach ...................................................................... 47
VII. Sentencing ....................................................................................... 53 Statutory Challenges......................................................... 53 (Selected) Guideline Issues ............................................... 55 Substantive Reasonableness ............................................. 64 Supervised Release/Probation .......................................... 66 Restitution/Forfeiture ....................................................... 70 VIII. Revocation........................................................................................ 71 IX.
Appeals............................................................................................. 73
VIII. Post-Conviction ................................................................................ 74
1
I.
BAIL AND DETENTION
United States v. Brooks, 33 F.4th 734 (5th Cir. May 9, 2022). Brooks appealed the district court’s denial of his motion for unconditional release. The district court had committed Brooks to conditional release under 18 U.S.C. § 4243(f), which allows a person acquitted only by the reason of insanity, who had been hospitalized pursuant to 18 U.S.C. § 4243(e), to be discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment. Because “the appropriateness of and grounds for conditional release are questions of an intensely fact-bound and discretionary nature[,]” the Court affords “broad deference to the district court factual determinations under § 4243.” The district court’s findings are only reversible for clear error, and Fifth Circuit finds none here.
II.
SUPPRESSION
United States v. Rafoi, 60 F.4th 982 (5th Cir. Feb. 28, 2023). Defendants Bleuler and Murta were indicted in an international bribery scheme to launder the proceeds of the bribery scheme. The Fifth Circuit reverses the district court’s order granting a Miranda-based motion to suppress. The Court held that a reasonable person in Murta’s position would not have thought he was in custody for Miranda purposes when Murta was interviewed by Portuguese authorities at the request of the U.S. government. The interview lasted nearly 9 hours, with the final 2 hours consisting of Murta reviewing a transcription of the interview notes and was held in a conference room at a criminal investigation office. While Portuguese law required Murta to appear and remain in the interview until questioning concluded, the general obligation to appear and answer questions truthfully does not convert otherwise voluntary statements into compelled ones. Murta was not physically restrained, was given multiple breaks during the interview, and was repeatedly told by agents that he was only a witness, not the subject or target, of the investigation.
2
The Court also held that Murta was not questioned in an environment tantamount to a station-house interrogation because Murta’s attorney was present to safeguard against police coercion during the interview and Murta was repeatedly told he was a witness, not a suspect. The Court also reversed several of the district court’s other decisions. First, the Court held that the district court had subject matter jurisdiction of extraterritorial offenses, so long as the indictment charged the defendant with an offense against the United States. Any question of extraterritoriality is a question on the merits, not an issue of subject matter jurisdiction. Second, the Court held the indictment was constitutionally valid because it put the defendants on notice of the charge asserted against them, and the Government did not need to describe all the evidence to establish the facts. Third, the indictment demonstrated a sufficient nexus between the alleged criminal conduct and the United States because the aim of the criminal activity was to cause harm to the United States and the defendant had fair warning of potential criminal prosecution. Fourth, the term “agent” in the Foreign Corrupt Practices Act is not unconstitutionally vague. Fifth, the moneylaundering statute (18 USC § 1956(f)) does not require physical presence, so long as the conduct occurred at least in part in the United States. Sixth, the statute of limitations was tolled when the government requested evidence from another country, even though the government had indicted other defendants in this scheme, the request to toll the statute of limitations had occurred before the return of an indictment as to this defendant. United States v. Wright, 57 F.4th 524 (5th Cir. Jan 18, 2023). The Corpus Christi Police Department received an anonymous call about a suspicious car. Minutes later, an officer pulled behind the car and engaged her emergency lights. As she parked, the officer saw the driver’s door open on the car and, as the officer exited her car, she commanded Wright three times to stay in his car. Wright did not remain in (or return to) his car, but instead slowly exited his vehicle, faced the officer with both hands extending outwards, and calmly addressed the officer. The officer then told Wright to place his hands on his car (which he did) and conducted a pat-down before Wright began disregarding the officer’s commands—he refused to walk toward the officer’s car, he began 3
knocking on his vehicles hood, and he yelled at a passenger to exit the car and lock it. At this point the officer handcuffed Wright and searched the vehicle, finding a gun and drugs. Wright moved to suppress the evidence, and the district court denied the motion. The district court held that the officer did not initiate a Terry stop until Wright began disregarding her commands (and, at that point, there was reasonable suspicion for a stop). The Fifth Circuit disagreed, holding that the Terry stop occurred earlier when the officer activated her emergency lights and almost simultaneously ordered Wright to stay in his car. The Court determined that, at this point, a reasonable person would not believe that he was free to leave and that Wright sufficiently submitted to this show of authority because he did not defy her authority or attempt to flee. The Court remanded to the district court to determine whether reasonable suspicion existed for the Terry stop at the time the officer pulled behind Wright and ordered him to remain in his vehicle. United States v. Montemayor, 55 F.4th 1003 (5th Cir. Dec. 19, 2022). Montemayor and Cerda were convicted after trial of participating in a drug-trafficking conspiracy and a conspiracy to possess a firearm to further a drug conspiracy and a crime of violence (multiple carjackings). Defendants appealed multiple issues and, for the most part, affirmed. Defendants argued that the district court erred in finding they lacked standing to suppress evidence obtained through cell-site location information and evidence obtained through cell-tower dumps. The district court determined defendants lacked standing for a Fourth Amendment challenge because Montemayor declined to stipulate to ownership of any phone, even though one appeared to be registered to him. Montemayor argued that he did not disclaim any privacy interests by declining to stipulate, he was merely invoking his Fifth Amendment right to remain silent. The Fifth Circuit declined to address the intersection of a defendant's Fifth and Fourth Amendment rights, instead holding that the denial of the motion to suppress did not prejudice the defendants because there was substantial evidence in the record. The Fifth Circuit vacated two counts of discharging a firearm under § 924(c)(1) for violating Double Jeopardy because, though they alleged 4
separate incidents on different dates, multiple firearm counts under § 924(c)(1) cannot be predicated on the same drug conspiracy. However, the Court found no plain error on two separate counts of brandishing a firearm during and in relation to a drug trafficking offense AND during a crime of violence. Though neither of those counts expressly identifies the crime of violence, each count is immediately preceded in the indictment by the relevant crime of violence. The dates of those respective crimes of violence are clearly shown in the verdict forms for the firearm offense. § 924(c)(1)(A) sets out the penalty for people who use or carry a firearm “during and in relation to a crime of violence or drug trafficking crime.” Because these two counts were predicated on both an offense of drug trafficking and on a crime of violence, and the evidence of each of the violent crimes was undisputed, based on the record there was neither a double jeopardy problem nor a risk the jurors relied only on an improper predicate offense. The Fifth Circuit held the district court’s error in determining the drug quantities attributable to each defendant at sentencing did not warrant reversal. The jury “clearly” should have been given the factual issue of the relevant drug quantities, so plain error occurred. Defendant’s substantial rights were also affected, but the error did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. The Court held no plain error when the indictment, jury instructions, and jury verdict form (and the Government’s arguments) conflated the two standards in § 924(c)(1)(A), which identifies two different types of conduct: the use or carrying of a firearm during and in relation to any crime of violence or drug trafficking crime and the possession of a firearm in furtherance of any such crime. While first two prongs of plain error review satisfied, the Court held that the fairness, integrity, and public reputation of the proceedings were not affected because there was sufficient evidence that Defendants agreed to use firearms during and in relation to a crime of violence or drug trafficking. Finally, no plain error where judge briefly made untranslated remarks in Spanish during the trial. Court did caution that all proceedings should be in English or translated to English for the record. 5
United States v. Tenorio, 55 F.4th 465 (5th Cir. Dec. 9, 2022). Tenorio was driving from Texas to Mexico when he was stopped by Customs and Border Protection officers at the Del Rio port of entry. He declared that he had $3,200 in U.S. currency. Because Tenorio appeared nervous and a canine showed some interest in his vehicle, officers asked him to pull over his car for a secondary search. During this secondary search, CBP officers questioned Tenorio, they searched his vehicle, and a dog sniff alerted to Tenorio’s boot, which contained nearly $20,000. Tenorio moved to suppress the currency because neither the dog sniff of his person nor the secondary inspection was supported by reasonable suspicion. The Fifth Circuit affirmed the district court’s denial of the motion to suppress. The Court reiterated that the Fourth Amendment’s protections are severely diminished at international borders—whether coming or going. The Court held that both the dog sniff of Tenorio and the ten-minute secondary search were “routine” border searches that did not seriously invade Tenorio’s privacy and so did not require individualized suspicion or probable cause. United States v. Cordova-Espinoza, 49 F.4th 964 (5th Cir. Sept. 30, 2022). Agents were investigating a tip that people involved in human smuggling were staying in Room 115 of the Oyo Hotel. They knocked on that room’s door, but no one answered. They spoke to the hotel manager and told him that the occupants had a reasonable expectation of privacy from the government, it would take them a long time to get a warrant, and that the door might be broken down. The manager walked to the room, opened the door with his key, and left the door open for the agents who immediately saw Cordova and other individuals. Cordova moved to suppress agents’ testimony that they saw him in the hotel room, as well as his immigration file and other identity evidence (acknowledging this latter request was foreclosed by United States v. Roque-Villanueva, 175 F.3d 345 (5th Cir. 1999)). The district court found that the manager was not acting as a government agent. The Fifth Circuit affirmed after discussing the various tests the Court has recognized for determining whether a private individual is acting as a government agent. The Court declined adopting a specific test, finding instead that Cordova’s argument failed under either one: the agents had no prior knowledge of and no participatory role in the manager’s search, the manager was partly 6
motivated by a desire to help himself, he was not compensated, and the agents did not initiate the idea that the manager open the door. United States v. Malagerio, 49 F.4th 911 (5th Cir. Sept. 23, 2022). DHS obtained an administrative warrant to arrest Malagerio after receiving a tip that he was in the United States illegally. Such a warrant is issued based on probable cause of removability. Malagerio argued below and on appeal that the agents were not permitted to seize him within his home with an administrative, versus judicial, warrant. The Fifth Circuit did not resolve that important question. Instead, the Court found that the district court did not clearly err by finding that Malagerio was seized after he exited the home and was not on any curtilage. Malagerio was seized in an open driveway between his trailer and a neighbor’s; even if he had been seized in the doorway, the doorway is a public place. The Court also found that the district court did not err by finding that Malagerio consented to the search of his trailer. The Court affirmed his conviction. United States v. Walker, 49 F.4th 903 (5th Cir. Sept. 21, 2022). The Fifth Circuit is not swayed by Walker’s many suppression challenges. First, Walker argues that the traffic stop was illegal, but the Court credits the district court’s credibility determination and finds that the officers observed a traffic violation. Second, Walker challenges his arrest, which was based on traffic warrants. The Court finds the officers in good faith relied on the computer records listing the warrants. The Court found no evidence that the City of Houston’s warrant system produces routine or widespread errors raising constitutional concerns. Next, Walker argues the evidence discovered in the car should be excluded because his statements about the gun’s location were made before he was given Miranda warnings. The Court first addresses the inevitablediscovery doctrine and finds that the officers were required to do an inventory search of his vehicle, the Houston Police Department policy provides proper limitations on the search, and the policy was appropriately applied in this case. Because the firearm would have been discovered by the inventory search, Walker’s statement about the location of the firearm is “not independently significant” and caused no prejudicial error. 7
United States v. Fernandez, 48 F.4th 405 (5th Cir. Sept. 7, 2022). Fernandez drove to the Odessa Police Department as he called 911 claiming he was armed and being chased by multiple people. When he arrived, officers pat him down and asked him to describe who was chasing him. Officers continued asking him questions, and Fernandez said he had used cocaine the night before. About 14 minutes into the interaction, an officer decided to charge Fernandez with being a drug user in possession of a firearm and said he would “Mirandize him and do a confession.” After being Mirandized, Fernandez repeated the information he previously provided about drug use and purchasing the firearm. The district court suppressed statements Fernandez made before being Mirandized but found the post-Miranda statements were admissible. The Fifth Circuit affirmed. The Court found no Missouri v. Seibert, 542 U.S. 600 (2004), violation because the officers did not deliberately fail to Mirandize Fernandez. The events unfolded quickly, and the officers simply responded to evidence they acquired while investigating Fernandez’s claim of being chased. The Court also rejected the argument Fernandez’s statements were involuntary because he was delusional. That argument, raised at oral argument, was waived because it was not adequately addressed in the brief. United States v. Morton, 46 F.4th 331 (5th Cir. Aug. 22, 2022) (en banc). The en banc Fifth Circuit that the officers relied in good faith on a warrant to search Morton’s cell phone, including his photographs. Morton had been arrested for simple possession of drugs, and the search warrant affidavit mentioned Morton’s photographs only in connection with statements about the behavior of drug traffickers. A panel had held that the officer could not rely on assertions that cell phone photographs have evidence of trafficking to search the photo contents of the cellphone because Morton was only charged with simple possession and the officer could not ignore the evidence that negated probable cause as to trafficking. The en banc Court disagreed. The Court found the warrant was not “bare bones”; it contained more than wholly conclusory statements: description of the drugs found in Morton’s car, affiant’s knowledge that cellphones are used for receipt and delivery of illegal narcotics, and affiant’s knowledge that criminals often take pictures of co-conspirators and illicit drugs. With that “meat on the bones,” the judge issuing the warrant made a judgment call—and that’s when good faith 8
“prevents suppression based on after-the-fact reassessment of a probablecause determination.” The Court also opined that good faith need not be established for each particular item to be searched (e.g., photographs versus call records or text messages). Rather, the question is whether the affidavit as a whole is bare. “For better or worse, the warrant requirement and good-faith rule make the judge presented with the warrant application the central guardian of Fourth Amendment rights.” Judge Higginson (with Judges Elrod and Willett) concurs. He agrees that the good-faith rule applies here. But he disagrees that the facts here support probable cause to search the entire contents of the cell phone. “[I]f the fact that the arrestee was carrying a cell phone at the time of arrest is sufficient to support probable cause for a search, then the warrant requirement is merely a paperwork requirement. It cannot be that Riley’s holding is so hollow.” Judges Ho and Wilson join in the second part of the concurrence that recognizes the heightened privacy interest in the contents of a cell phone and that the courts and scholars are sifting through possible solutions. But the solution floated by the panel in this case—requiring probable cause for each category of data to be searched— has practical problems. Judge Graves (with Judge Dennis) dissents. He criticizes the majority hiding behind good faith and failing to analyze whether the affidavit presented probable cause. The affiant’s generalizations lacked a nexus to the crime of simple possession, and there was no probable cause for the warrant. He warns that officers will replicate the conduct here—state where they found drugs and use boilerplate language that cellphones are used for receipt and delivery of illegal narcotics. United States v. Johnlouis, 44 F.4th 331 (5th Cir. Aug. 11, 2022). A letter carrier discovered what she feared were drugs when her thumb slipped through a package. Johnlouis argued the letter carrier was a governmental actor subject to the Fourth Amendment. The district court and Fifth Circuit disagreed. The Court concludes that being a governmental employee does not per se mean the Fourth Amendment attaches to the employee’s actions absent a connection to law enforcement. 9
Judge Dennis concurs. He would affirm the judgment on the alternative ground of the independent source doctrine. United States v. Rose, No. 20-10463, 2022 WL 3010698 (5th Cir. July 29, 2022) (per curiam). The Government filed an interlocutory appeal of a partial grant of a motion to suppress, and the Fifth Circuit reverses and remands. An anonymous 911 caller reported a possible armed robbery in a store parking lot. He said he saw two people sitting in a parked white Ford Crown Victoria. He described the driver as a black male wearing a black hoodie, red pants, and white and gold “Jordans,” and threatening the passenger with a black handgun with an extended clip. The caller said the driver took pills from the passenger. Officers arrived at the scene within five minutes and saw Rose standing behind a dumpster. Rose fit the caller’s description except that he had a light grey hoodie, not a black one. The Ford Crown Victoria was parked nearby. To determine whether the 911 call can supply reasonable suspicion, the Court considers (1) the credibility and reliability of the informant, (2) the specificity of the information contained in the tip, (3) the extent to which the information in the tip can be verified by officers, and (4) whether the tip is stale. The Court finds that the three Navarette v. California, 572 U.S. 393 (2014), factors weigh in favor of reliability of the informant: (1) assertion of eyewitness knowledge of the reported event; (2) contemporaneous report; and (3) use of the 911 emergency system. The The use of 911 lends reliability to the tip because the call is recorded and traceable, subjecting the caller to prosecution for a false tip. The Court concludes the tip was sufficiently corroborated, even though the officers did not corroborate the criminal activity and the caller described a dark hoodie, not a light grey one. The Court interprets Florida v. J.L., 529 U.S. 266 (2000), as only requiring corroboration of “anonymously reported criminal activity when the tip itself lacks certain indicia of reliability[.]” Because all factors weighed in favor of the Government, the Court found no reasonable view of the evidence supports the district court’s ruling. [Note: This unpublished decision seems to be a follow-up to United States v. Norbert, 24 F.4th 1016 (5th Cir. Feb. 4, 2022) (en banc), another tip case for which the Court was evenly split.] 10
United States v. Dennis, 41 F.4th 732 (5th Cir. July 27, 2022). Dennis was convicted by a jury of drug trafficking crimes and raised several issues on appeal. First, Dennis argued the district court erred by denying his leave to file a motion to suppress out of time. The Fifth Circuit finds the district court did not abuse its discretion in denying the motion filed over a year after the pretrial motions deadline, as Dennis failed to show good cause for the late filing. Good cause requires a showing of cause and prejudice. Dennis had seven lawyers before trial, and prior counsel were aware of the surveillance footage Dennis tried to suppress. Ongoing plea negotiations is not a reason to file untimely motions. And there was no prejudice because the court heard counsels’ arguments and orally ruled on the arguments before trial. Second, Dennis argued the district court erred by denying the motion to suppress. This was reviewed for plain error because the motion was denied as untimely. Dennis had argued the pole cameras that surveilled his property were an unreasonable intrusion into his privacy under the Fourth Amendment. The Court finds no clear error, finding that no privacy interest was invaded because the area surveilled was from a street view continuously visible to individuals. Dennis had also argued that the omission from the search warrant affidavit of dates that the cooperating defendants delivered marijuana should invalidate the warrant. The Court finds no proof that this omission was deliberately or recklessly made to mislead the court, given that defendants described 19 deliveries and the video evidence freshened the information. The Court also rejects the argument that the district court abused its discretion in denying the final motion for continuance or in denying access to the cooperating defendants’ presentence reports, noting that those defendants were not similarly situated to Dennis. Finally, the Court affirmed the $7.2 million forfeiture order, as Dennis had, through counsel, waived his right to a jury on forfeiture, and there was sufficient evidence of the amount. 11
United States v. Coulter, 41 F.4th 451 (5th Cir. July 18, 2022). The Government filed an interlocutory appeal of a district court order granting a Miranda-based motion to suppress. A split panel reverses. The majority holds a reasonable person in Coulter’s position—handcuffed on the side of the road after a traffic stop—would not have thought he was in custody for Miranda purposes. Officers repeatedly told Coulter he was just being detained so that he would not grab the gun. The majority alternatively held that Coulter was not questioned in an environment tantamount to a station house interrogation. (The district court failed to proceed to this second Miranda custody inquiry.) The encounter did not have the inherently coercive pressures at issue in Miranda: Coulter was standing on a public street, and the encounter lasted only 15 minutes. Judge Jones concurs. She would impose a cost-benefit analysis in every Miranda case. Chief Judge Richman dissents. She believes the handcuffing, the officers’ threats to tase Coulter if he moved, and the accusatory nature of the questions outweighed the brief and public nature of his questioning. United States v. Morris, 40 F.4th 323 (5th Cir. July 13, 2022). The Fifth Circuit reverses the district court’s ruling that Morris had not been subject to a Fourth Amendment stop. Morris had been sleeping in his parked car at a truck stop. As officers walked toward Morris’s car, he started to drive away. But an officer flagged down Morris, and he stopped. After two minutes of questioning surrounded by several officers, Morris was asked to get out of the car. Morris complied and was questioned more. The officers said the faster he cooperates, the quicker he can leave, and then asked to search his car. The Fifth Circuit held that flagging the car to stop and ordering him to exit the car is a stop. The Court also held the district court erred by holding the officers had not communicated to Morris that he was not free to leave. The Court remanded for the district court to determine whether the stop was supported by reasonable suspicion. United States v. Alvarez, 40 F.4th 339 (5th Cir. July 13, 2022). During a roundup of gang members with outstanding warrants, officers lacked reasonable suspicion to stop Alvarez based on a description of a “Hispanic 12
male who had run from officers on a bicycle with large handlebars in the area of Leopard and Up River at some unspecified time in the past.” Alvarez at first ignored the officers, but then he was stopped and frisked. The officers found a revolver and ammo, but later learned he was not the Hispanic man on a bicycle they were looking for. The Fifth Circuit majority overturned the district court’s denial of the motion to suppress, holding that such an “open-ended description,” particularly in Corpus Christi, “would effectively authorize random police stops, something the Fourth Amendment abhors.” Judge Jones dissents, criticizing the majority’s view as “unduly restrictive.” She would have found reasonable suspicion because Alvarez met the description and initially evaded the stop in a high-crime area during a large gang roundup. United States v. Henry, 37 F.4th 173 (5th Cir. June 10, 2022). Officers stopped Henry for throwing a lit cigarette out of his window, speeding, and driving on the shoulder of the highway. They also suspected him of being a drug dealer. After learning that he was driving without a license, officers asked for consent to search the car, which Henry gave. Officers found heroin under the hood of the car. Henry moved to suppress the fruits of the search arguing that the stop was illegally prolonged. The district court denied the motion and the Fifth Circuit affirmed. The Court finds the stop was justified at the inception due to the traffic violations. The continuance of the traffic stop was justified because checking the validity of Henry’s license was reasonably related in scope to the circumstances that justified the stop, and officers developed reasonable suspicion that Henry was involved in the sale of heroin because he matched the description of a drug trafficking suspect. United States v. Rodriguez, 33 F.4th 807 (5th Cir. May 13, 2022). Rodriguez was charged with and convicted of violating 18 U.S.C. 922(g)(5)(A) for being a noncitizen in possession of a firearm. Rodriguez was the passenger in a car stopped for a traffic violation, and the firearm was found in the pocket of his jacket, which he had left in the car when the officers removed him from the car. Rodriguez filed a motion to suppress the search of the vehicle, claiming it violated his Fourth Amendment rights. The district court did not suppress the gun found in 13
his jacket pocket during the search despite him and the driver being removed from the vehicle by the police. The Fifth Circuit first discussed, but did not resolve, standing. Rodriguez’s first theory of standing was a reasonable expectation of privacy in his jacket. The Court has recognized an exception for a passenger’s luggage, but the Court commented a jacket is unlike a suitcase and there is no precedent on this theory. His second theory of standing was challenging the search because it qualified as a trespass. If the government committed a common-law trespass during its investigation, a defendant can show standing. However, there are few cases interpreting this showing of standing. The Fifth Circuit found the protective sweep was permissible because of “the possibility that a suspect might return to a vehicle….” Until Rodriguez was actually arrested, “he will be permitted to reenter his automobile, and he will then have access to any weapons inside.” The officers had a reasonable suspicion of danger or control of weapons requirement because Rodriguez shifted in his car “[a]s if [he was] removing a jacket.” That observation was deemed to create reasonable suspicion that he was concealing a gun. The search was ruled legal and consequently standing was immaterial. Conviction and denial of motion to suppress affirmed. Note: Rodriguez argued the case should be remanded for more factfinding as there was not enough to assess the validity of the protective sweep. The Fifth Circuit explained it “ordinarily” affirms if the record allows them to when the officers’ credibility is not in question or the question of danger was not deliberately avoided. That was the case here. United States v. Norbert, 24 F.4th 1016 (5th Cir. Feb. 4, 2022) (en banc). Was there reasonable suspicion based on an anonymous tip? It’s a tossup. The vacated panel opinion, 990 F.3d 967 (5th Cir. 2021), found that the district court did not err in granting the motion to suppress. The stop was based on an anonymous tip supposedly from an apartment complex manager about suspicious activity, but the cops didn’t verify her identity, or any corroborate any criminal activity before stopping Norbert. All they knew was that someone matching the caller’s 14
description of the suspect was in the parking lot where the caller said he would be. The panel majority (Davis & Stewart) said RS requires a tip be reliable in its assertion of the illegality, not just identifying the person. The panel dissent (Oldham) vehemently disagreed. The en banc court was equally divided (9-9), which means the district court’s judgment granting the motion to suppress is affirmed. Good news for Mr. Norbert, but the Fifth Circuit judgment is not entitled to precedential weight. Still an interesting, possibly persuasive read, though. United States v. Martinez, 25 F.4th 303 (5th Cir. Feb. 1, 2022). Another case involving detention of packages sent by U.S. Postal Service (USPS) mail. The defendant challenged denial of motion to suppress arguing: 1) no reasonable suspicion to detain the packages; and 2) even if reasonable suspicion, 17-day delay between packages’ detention and search was unreasonable. The Fifth Circuit held that there was reasonable suspicion to detain the packages based on the “USPS drug package profile” characteristics. This profile was described in United States v. Lux, 905 F.2d 1379 (10th Cir. 1990)—1) size and shape of package, 2) package taped to close or seal all openings, 3) handwritten or printed labels, 4) unusual return name and address, 5) unusual odors, 6) fake return address, and 7) destination of package. Here those characteristics included: handwritten labels, paid in cash, SDCA was a known source for drugs, handwriting identical on the packages but had different senders’ names. The Fifth Circuit broke the 17 day delay into two periods: the 8 days from when detained to when probable cause; the 8 days from probable cause to getting a search warrant. Both delays were reasonable. The investigator had been diligent and there were circumstances he could not control including: weekends, being required to work on other cases, and being out sick. III. GUILTY PLEA
15
United States v. Mamoth, 47 F.4th 394 (5th Cir. Aug. 29, 2022). Mamoth was charged for attempted bank robbery and invoked his right under Faretta v. California, 422 U.S. 806 (1975), to proceed pro se. The court granted his request and appointed standby counsel. Mamoth signed a plea agreement for 144 months’ imprisonment, but the district court rejected it after seeing the PSR. Mamoth elected to proceed to trial. After the final pretrial conference, the prosecutors and standby counsel went to the district court chambers (without Mamoth) to ask if it would be amenable to a plea agreement. The court indicated it would, and standby counsel went to discuss a possible plea with Mamoth. Mamoth said he would plead guilty for 46 months’ imprisonment; standby counsel relayed the message, and the district court rejected it. Standby told Mamoth about the rejection, and Mamoth said he wanted to negotiate his own plea. Counsel said that was not possible. Mamoth then asked what the court would accept. The prosecutors and standby counsel returned to chambers and asked if the court would entertain a sentence of 70 to 87 months. The court said such an agreement would likely be acceptable because it appeared to fall within the applicable Sentencing Guidelines range. Standby counsel relayed this, and Mamoth agreed to plead guilty. He was sentenced to 87 months. On appeal, Mamoth argued the district court violated Rule 11(c) by participating in plea negations and that his Sixth Amendment right was violated during the plea-bargaining process. The Court held that any Rule 11(c) violation was invited—by Mamoth asking what plea agreement the district court would accept—and he did not show manifest injustice. Mamoth’s Sixth Amendment rights were not violated. Standby counsel acted as an emissary, and Mamoth preserved the right to “control and guide” the case through plea negotiations. United States v. Gardner, 2022 WL 422167 (5th Cir. Feb. 11, 2022) (unpublished), superseding and withdrawing 15 F.4th 382 (5th Cir. Oct. 6, 2021). The Fifth Circuit vacated the district court’s denial of Gardner’s motion to withdraw his guilty plea and remanded. Gardner, through a new attorney, filed a motion to withdraw his guilty plea based on ineffective assistance (IAC) of counsel by his first attorney. The next day, without a response by the government or a hearing, the district court denied the motion with a one-word order. The question on appeal was 16
whether the court had abused its discretion by denying Gardner’s motion to withdraw his guilty plea. Gardner’s motion included facts in support as well as a discussion of the factors in United States v. Carr, 740 F.2d 339 (5th Cir. 1984). The Fifth Circuit held that, because the district court had provided no analysis regarding Gardner’s arguments or the application of the Carr factors, the Court could not determine whether it had abused its discretion. The Court remanded the case to the district court to “consider Gardner’s arguments under the Carr framework and for such other proceedings, including any evidentiary hearing, as the court deems proper.” In the earlier published opinion, which was withdrawn, the panel had addressed, in detail, the specifics of Gardner’s IAC claims. In the new unpublished opinion, the panel noted that “nothing in this opinion forecloses any of Gardner’s rights under 28 U.S.C. § 2255.” United States v. Vargas, 23 F.4th 526 (5th Cir. Jan. 13, 2022). Vargas argued that there was an insufficient factual basis to support his guilty plea to conspiracy to possess with intent to distribute a controlled substance because there was no evidence he conspired with anyone other than a confidential informant. The Fifth Circuit held that it did not need to decide this issue because the defendant failed to object in the district court, so it was reviewed for plain error. Because the defendant did not argue that he would not have pleaded guilty but for this error, he has not shown that the error affected his substantial rights. Vargas argued that because the district court failed to pronounce the standard conditions of supervised release, they must be removed from the written judgment. The Fifth Circuit held that the district court did not err, plain or otherwise, in imposing conditions even though the court did not pronounce the conditions at sentencing or orally adopt the PSR. The PSR, which the district court verified the defendant had reviewed, recommended the “mandatory and standard conditions of supervised release.” The district court explained that there would be mandatory, standard, and special conditions for the term of supervised release. And, given the longstanding existence of the WDTX’s standing order, “defense 17
counsel certainly knew that the standard conditions being imposed were the ones listed in the standing order. IV.
TRIAL
PRETRIAL MATTERS United States v. Rahimi, 61 F.4th 443 (5th Cir. Mar. 2, 2023). The Fifth Circuit holds that the new Second Amendment decision N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), abrogates its precedent and that the federal statute prohibiting possession of firearms by someone subject to a domestic violence order, 18 U.S.C. § 922(g)(8), violates the Second Amendment. The Court’s initial Rahimi decision (issued in February) was a straightforward application of Bruen holding that the conduct at issue (firearm possession) is covered by the Second Amendment, thereby shifting the burden to the Government to prove a historical tradition supporting that firearm regulation. That decision was withdrawn and superseded by an opinion that still finds § 922(g)(8) is facially unconstitutional but muddies the water for other statutes such as § 922(n) (receipt under indictment) and § 922(g)(1) (possession by felon). To see what changed in the opinions, check out this side-by-side comparison. Like the first Rahimi decision, the new one addresses who is protected by the Second Amendment before addressing whether the conduct is protected and whether the Government has proven a historical tradition. But the first decision said all citizens are protected. The second one is messier. The Court says Heller’s and Bruen’s references to ordinary, “lawabiding” citizens are “meant to exclude from the Court’s discussion groups that have historically been stripped of their Second Amendment rights, i.e., groups whose disarmament the Founders ‘presumptively’ tolerated or would have tolerated.” The Court concludes that “Rahimi did not fall into any such [unprotected] group at the time he was charged with violating § 922(g)(8), so the ‘strong presumption’ that he remained among ‘the people’ protected by the amendment holds.” Who is not be protected? The Court strongly suggests felons are not and leaves open the possibility that indictees are not. But the Court still criticizes the 18
Government’s interpretation of “law-abiding” as having “no true limiting principle.” The Court treats the challenge as a facial one, rejecting the Government’s argument otherwise, and explains that “Bruen instructs how to proceed”: (1) Does the plain text of the Second Amendment cover the individual’s conduct? (2) If so, then the Constitution presumptively protects that conduct, and the Government must show that its regulation is “consistent with the Nation’s historical tradition of firearm regulation.” The Court explains that the Government bears the burden at the historical step and must present representative analogues. The comparability of those analogues is judged by two metrics: (1) how the law burdens the right to armed self-defense, and (2) why the law burdens that right. The proffered analogue must be “relevantly similar” to the challenged law, recognizing that “the lack of distinctly similar historical regulation addressing” a problem that has persisted since the 18th century could be evidence that a modern regulation is unconstitutional. Here, possession of a pistol and rifle “easily falls within the purview of the Second Amendment.” The Court finds the Government’s historical examples—laws disarming “dangerous” people, “going armed” laws, and surety laws—unpersuasive. Judge Ho writes a separate concurrence “to explain how respect for the Second Amendment is entirely compatible with respect for our profound societal interest in protecting citizens from violent criminals.” He emphasizes that § 922(g)(8) “disarms individuals based on civil protective orders—not criminal proceedings.” [Note: The Government will most likely file a petition for certiorari in Rahimi. The mandate is due March 24.] Cargill v. Garland, 57 F.4th 447 (5th Cir. Jan. 6, 2023) (en banc). The Fifth Circuit holds that the ATF rule including non-mechanical bump stock devices in the definition of “machine gun” in 26 U.S.C. § 5845(b) was contrary to a plain reading of the statutory language. The statute 19
defines a machine gun as “any weapon which shoots … automatically more than one shot … by single function of the trigger,” or any accessory that allows a firearm to shoot in that manner. The non-mechanical bump stock allows more than one shot after the finger pulls the trigger, but the trigger is still pulled (because of the bump stock and the shooter’s maintained force on the gun’s forebody). The Court declines interpreting “single function” as “single pull from the shooter’s perspective.” It also finds that the bump stock does not allow the firearm to shoot automatically, as required by § 5845(b), because subsequent shots require additional human action beyond the trigger function. The Court also held that, even if the statute was ambiguous, Chevron deference would not apply. First, the Government waived Chevron deference by telling the trial court (Judge Counts) that it was unwarranted. Second, Chevron deference does not apply because the AFT regulations were interpreting a criminal statute. The Executive Branch cannot be responsible for making criminal laws, in which “the public’s entitlement to clarity in the law is at its highest.” [Note: the opinion describes circuit splits on this first two Chevron points.] Third, Chevron deference does not apply when the agency adopts an interpretive position that is inconsistent with its prior position, as the ATF did here. Assuming arguendo that the statute is ambiguous, the rule of lenity applies. The Court does not resolve whether the ambiguity standard is “reasonable doubt” or “grievous ambiguity,” because this statute is grievously ambiguous. Judge Elrod wrote the majority opinion, which 12 other judges joined. Two of those judges (Chief Judge Richman and Judge Haynes) joined only because they found the statute ambiguous and that the rule of lenity favors the citizen. Judge Ho wrote a concurrence (joined by Chief Judge Richman and Judge Southwick) also basing his vote on the statute being ambiguous and the rule of lenity. Judge Higginson wrote a dissent (joined by Judges Dennis and Graves), citing the panel opinion and dissenting from the majority’s use of the rule of lenity. He does not find the ambiguity here to be sufficiently grievous to require lenity. 20
United States v. Barcenas-Rumualdo, 53 F.4th 859 (5th Cir. Nov. 18, 2022). Barcenas challenged the illegal reentry statute as violating the equal protection guarantee of the Fifth Amendment. The Court affirms the denial of the motion to dismiss. It does not resolve whether the heightened Arlington Heights standard or a rational-basis review applied, because the challenge failed under either standard. Relying on a recent en banc decision, Harness v. Watson, 47 F.4th 296 (5th Cir. 2022), the Court reasons Barcenas could not rely on “troubling history” of § 1326’s predecessor, the Undesirable Aliens Act of 1926. Rather, only the “most recent enactment of the challenged provision” mattered for determining its constitutionality. Section 1326 had been amended multiple times with no showing of racial animus and thus “overcome its odious origin.” The Court finds that other evidence of racial animus, such as President Truman’s veto statements and “that individual lawmakers dubbed a bill something derogatory” (the “Wetback Bill”), said nothing of Congress’s motivations as a whole regarding § 1326. [Note: The Harness petition for certiorari was distributed for the February 17 conference and keeps getting relisted.] Barcenas also raised several sentencing challenges. The Court affirms the term of imprisonment, finding the district court adequately considered Barcenas’s sentencing disparity argument. But the Court vacates Barcena’s three-year term of supervised release because the district court had impermissibly considered the appeal clock in imposing it. United States v. Seekins, 52 F.4th 988 (5th Nov. 11, 2022) (en banc). The Fifth Circuit declines hearing en banc the Commerce Clause challenge to 18 U.S.C. § 922(g), with seven judges voting in favor of rehearing and nine voting against. Seekins was a homeless man with a prior felony conviction who found two shotgun shells in a dumpster. The interstate commerce connection was proven solely by testimony that the shells were manufactured in another state. Judge Ho dissents, explaining “[i]t’s hard to imagine a more local crime than this.” The Commerce Clause power “‘must be read carefully to avoid creating a general federal authority akin to the police power.’” (quoting NFIB v. Sebelius, 567 U.S. 519 (2012)). Ho argues that the Fifth Circuit precedent 21
(United States v. Rawls, 85 F.3d 240 (5th Cir. 1996)) erroneously relied on Scarborough v. United States, 431 U.S. 563 (1997), which was a statutory, not constitutional decision, and was issued before United States v. Lopez, 514 U.S. 549 (1995), “where the Supreme Court cabined the constitutional power of the federal government under the Commerce Clause.” [Note: issue worth raising, especially where the interstate commerce connection is unclear, although Fifth Circuit unlikely to overturn Rawls anytime soon.] United States v. Ansari, 48 F.4th 393 (5th Cir. Sept. 6, 2022). Ansari was indicted in 2011 for offenses arising from a scheme to circumvent U.S. export controls, and he went to trial in May 2021. He argues the delay violated his Sixth Amendment right to a speedy trial. The Court analyzes the four factors in Barker v. Wingo, 407 U.S. 514 (1972), and disagrees. Ansari had been living in Dubai and came to the United States in 2012, but he used a different name and did not disclose that he used other names on his visa application. Later the Government tried to lure Ansari to the United States, published the previously sealed indictment, and secured his extradition. The Court was not swayed that the Government had been negligent in these efforts to notify Ansari of the indictment and arrest him. Ansari’s evasiveness also cut against his diligence in asserting the right, and he could not show prejudice. The Court rejected Ansari’s argument that reversal of the jury’s verdict was required based on public trial grounds. The courtroom was closed to the public to allow more space for the jury to socially-distance, due to COVID-related concerns. The public could view the trial in an overflow room with contemporaneous live audio and video stream of the trial. The Court found these circumstances amounted to only a partial closure, and the district court had a “substantial reason” for taking the measures it did. The Court also found that sufficient evidence supported the verdict. United States v. Slape, 44 F.4th 356 (5th Cir. Aug. 12, 2022). As a matter of first impression, an indictment returned by a defunct, out-ofterm grand jury is void ab initio. For Slape, that meant the Double Jeopardy Clause did not bar his subsequent prosecution pursuant to a new indictment charging him with the same crime. The Double Jeopardy Clause requires attachment and termination of a valid course of 22
prosecutorial jeopardy. Here, there was no attachment because the first indictment was void from the outset. The denial of the habeas corpus petition was affirmed. United States v. Perez, 43 F.4th 437 (5th Cir. Aug. 3, 2022). In April 2020, Perez posted on Facebook twice that he had paid a person who was COVID-19-positive to lick everything in two San Antonio grocery stores. He had not, and no licking occurred. But Perez was prosecuted for perpetrating a hoax biological-weapons attack. See 18 U.S.C. § 1038(a)(1) (hoax statute); 18 U.S.C. § 175 (prohibition on biological weapons). He argued that the biological-weapons statute does not extend to licking items in a grocery store and that the terrorist-hoax statute is an unconstitutional restriction on free speech. The Fifth Circuit affirms. The Court finds Perez’s conduct does not fall within the implied exception for local crimes: he made two public posts on the internet, and he threatened he had helped spread a dangerous virus in two grocery stores. The Court also finds these threats are not protected by the First Amendment, and that the statute is not facially unconstitutional. The Court vacates and remand to correct a sentencing error; his 2007 sentence to six years’ deferred adjudication should not have scored because it was imposed more than 10 years before the instant offense. See U.S.S.G. §4A1.2(e)(2), (k)(2)(C). United States v. Wills, 40 F.4th 330 (5th Cir. July 13, 2022). Wills was convicted of various crimes related to sex trafficking and sexual abuse of a minor. At trial, after he testified, he sought to introduce medical records confirming he was diagnosed with herpes six years before the abuse started. (The minor did not have herpes.) The district court excluded the records because Wills, who had sought and received discovery from the Government, did not produce them despite the Government’s specific requests for them during and before trial. Wills argued he did not “intend to use” these records in his case-in-chief until he decided to testify—a decision he did not make until after the Government presented its case. The Court rejected this argument: “a defendant may not avail himself of discovery from the Government and then condition his reciprocal compliance on his decision whether to testify.” The Court also rejected the argument that the Sixth Amendment forbids the exclusion of 23
otherwise admissible evidence solely as a sanction to enforce discovery rules or orders. Wills also argued his federal prosecution violated double jeopardy because he was subjected to punitive pretrial bond conditions in state court before being tried and convicted in federal court, and the dualsovereignty doctrine does not apply here. The Court held that law of the case bars these arguments because another panel in 2018 held that the dual-sovereignty doctrine applied and no double jeopardy violation occurred. It rejected the argument that Gamble v. United States, 139 S. Ct. 1960 (2019), had since changed the law. The Court forewent discussion of other issues raised, finding they had no merit for the reasons expressed by the district court and the Government. United States v. Kelley, 40 F.4th 276 (5th Cir. July 11, 2022). Kelley argues his federal prosecution violated the Speedy Trial Act because his state arrest was a ruse to detain him for a later federal prosecution. The district court held two hearings on the motion before finding that Kelley failed to show that the federal charge was a primary motivation for the state officials to hold him. The Fifth Circuit agrees with the court, finding that the state authorities had a lawful basis for their detention because the state prosecution was going forward and both sovereigns could charge Kelley for being a felon in possession (plus the state was pursing an evading charge). The Court vacates Kelley’s sentence on plain-error review because his prior conviction for Texas assault of a public servant is no longer a §4B1.2 crime of violence post-Borden. See United States v. Bates, 24 F.4th 1017, 1019 (5th Cir. 2022). Judge Oldham concurs to complain that Kelley gets the benefit of the change in the law when he did not object below. United States v. Mearis, 36 F.4th 649 (5th Cir. June 8, 2022). A jury convicted Mearis in 2019 of two counts of sex trafficking a minor and three counts of sex trafficking by force, fraud, or coercion. The charges stemmed from his abusive relationship with young girls that he forced to engage in prostitution while living with him. The appeal concerns a fourth victim, T.V., age 14, that Mearis had another victim, L.C., recruit on Mocospace in July 2016. In September 2017, Texas state police 24
arrested Mearis and L.C. on state charges of aggravated kidnapping and trafficking of a child, A.W., who was not involved in this case. In February 2018, the Houston FBI Child Exploitation Task Force began a separate investigation into Mearis and he was arrested by federal authorities on June 26, 2019. He was indicted by a federal grand jury within thirty days. On appeal, Mearis argues his right to a speedy trial was violated under both the Speedy Trial Act and the Sixth Amendment. Under the Speedy Trial Act, information or indictment must be filed against the defendant within thirty days of their being brought into custody or the charges must be dismissed. Mearis contended that the Speedy Trial Act clock should have started when he was detained by state authorities as his state charges were just a “ruse” by state and federal authorities colluding to detain him until federal charges were brought. “Where the record does not support a finding that the detention was ‘used primarily or exclusively to develop criminal charges involving the conduct on which the civil arrest was based,’ there is no ruse.” While state and federal prosecutors exchanged emails about their plans, this was not evidence of impermissible collusion. The state had legitimate and independent reasons for detaining him and the emails reflect nothing more than efforts to avoid duplication of effort and resources. As for his Sixth Amendment challenge, he could not show that the seven-month delay between the email exchange and his federal arrest was presumptively prejudicial as “‘[a] delay of less than one year will rarely qualify as presumptively prejudicial for purposes of triggering the Barker inquiry.’” United States v. Ceasar, 30 F.4th 497 (5th Cir. Apr. 6, 2022). After Ceasar completed the first commitment period for competency restoration, the warden of the medical facility declared he had recovered sufficiently to be competent to stand trial. Months later, all parties and the court agreed that Ceasar was again incompetent. The Government wanted him committed again, but Caesar argued that the only option for additional treatment—because the warden had certified him competent the year before—was through civil commitment proceedings. The district court agreed with the Government and committed Ceasar for an additional four months or until competency was restored. Ceasar appealed. The Fifth Circuit held that the district court had the authority to commit Ceasar to a second period of competency restoration treatment. 25
The warden’s certification of competency did not foreclose the court’s authority to order an additional commitment period under 18 U.S.C. § 4241(d)(2). United States v. Sheperd, 27 F.4th 1075 (5th Cir. Mar. 8, 2022). Anne Sheperd was charged with healthcare fraud. The Fifth Circuit finds that the district court did not abuse its discretion by denying Sheperd’s motion to continue trial after she retained new counsel. It finds that the 8 factors to consider ultimately weigh against Sheperd—most heavily that the continuance motion was filed the night before jury selection. New counsel had 3.5 weeks to prepare for trial and competently defended her at trial. The lack of access to discovery until the night before trial and the complexity of the case did not outweigh the other factors, particularly given counsel’s experience. United States v. Pursley, 22 F.4th 586 (5th Cir. Jan. 12, 2022). The defendant was convicted by a jury of, among other things, conspiracy to defraud the United States and two counts of tax evasion for 2009 and 2010. Pursley argued that that the district court had erred by denying the defendant’s two motions to dismiss and request for jury instruction all based on statute of limitations (SOL). This case involved a complex tax fraud scheme involving offshore accounts in the Isle of Man. The government made two separate requests to the Isle of Man for assistance in investigating Pursley. The Isle of Man cooperated. On May 18, 2017, it sent a letter to the prosecutors referencing the second request, stating its belief that the “request was now executed in full,” but discussing documents from the first request. The government continued to ask for more documents. Early on, the government had moved for a suspension of the SOL under 18 U.S.C. § 3292, which allows for suspension when the government seeks evidence from a foreign country. A judge granted the suspension but did not specify when the suspension would end. Pursley twice moved to dismiss the indictment as barred by SOL. The district court denied both motions without reasons. At trial, Pursley requested that the jury be instructed on SOL: “for you to find the defendant guilty, the government must prove beyond a reasonable doubt 26
that the offense charged was committed within 6 years of the indictment.” The court denied the instruction request. The Fifth Circuit held that the district court had erred. First, the Court noted that, to determine the defendant’s SOL defense, it was necessary to determine exactly when the SOL began and ran. This is governed by by § 3292—the suspension starts when it is requested and ends when the foreign government takes “final action” on the request. “Final action” has been defined as “when the foreign government believes it has completed its engagement and communicates that belief to the US government. See United States v. Meador, 138 F.3d 986 (5th Cir. 1998). Under Meador, the Isle of Man’s May 18 letter would be the final action. The government argued the letter was not the “final action” because it was not a “dispositive response to each item set out in the official request.” See United States v. Bischel, 61 F.3d 1429 (9th Cir. 1995) (upon which Meador relied). The Court held that the district court had to make the determination of the final action in the first instance because it is an inextricably fact-bound question. The Fifth Circuit remanded to the district court to make that determination, to then calculate the relevant suspension of SOL, and to dismiss any counts outside of the SOL. As to the defendant’s request for a jury instruction on SOL, the Fifth Circuit held that it was not an incorrect statement of the law, as the government claimed. This was so because the defendant could not be faulted for not incorporating a suspension of SOL when the district court had not determined that. Accordingly, the defendant was also entitled to a new trial. JURY INSTRUCTIONS United States v. Ferris, 52 F.4th 235 (5th Cir. Oct. 25, 2022). Ferris had valid prescriptions for fentanyl patches to address his longstanding medical issues. On separate occasions, he went to the pharmacy to fulfill the prescriptions and gave the impression that he was an FBI agent. One day he had an FBI lanyard, another day he brought a pharmacist an FBI lapel pin, and he occasionally mentioned that he was doing FBI work. The pharmacist had verified the prescriptions before filling them but 27
eventually became suspicious, contacted the FBI, and found out Ferris is not an FBI officer. Ferris was charged with impersonating an FBI agent, in violation of 18 U.S.C. § 912. He went to trial, the district court adopted the Government’s proposed jury instructions over Ferris’s objection, and the jury found him guilty. On appeal, Ferris challenged the jury instructions. The Fifth Circuit reiterates that the elements of false impersonation are: (1) to falsely pretend to be a federal officer, (2) act as such, and (3) to have acted with a fraudulent intent. The Court noted that the district court’s instruction, which merely required for the second element that the defendant commit “any act,” “fails to perfectly align with § 912’s ‘act as such’ element.” But the error was harmless for two reasons. First, Ferris’s requested secondelement instruction, that he committed an overt act that asserted authority as an FBI agent, was also incorrect. Second, the record does not indicate that the jury convicted Ferris due to a misunderstanding over what was required by § 912’s second prong. Based on the evidence, the Court cold conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error. United States v. Ruel Hamilton, 46 F.4th 389 (5th Cir. Aug. 23, 2022). As a matter of first impression, the Fifth Circuit holds that the federal programs bribery statute, 18 U.S.C. § 666, applies only to quid pro quo bribery (not illegal gratuities). This deepens a circuit split. The Court also held (in a footnote) that Hamilton was entitled to an entrapment instruction; that error would also warrant reversing his conviction. The underlying facts: Hamilton is a Dallas real estate developer who financially supports political candidates. He reached out to a member of the city council (Caraway) to try to get an ordinance on a ballot. Caraway, who happened to be under investigation for kickbacks and bribes, offered to record his conversations with Hamilton for the FBI. Caraway suggested to Hamilton that they meet, and they discussed the ordinance but also other matters. Caraway talked about his health concerns, a medical bill he needed to pay for his mother, and general stress, and Hamilton asked how he could help. Eventually, Hamilton wrote a $7,000 check to Caraway. Hamilton properly objected that the jury instructions lacked a requirement for a quid pro quo. Without that instruction, the jury was “permitted to convict on an illegal-gratuity theory that does not 28
exist in § 666.” [Note: Hamilton had his self-surrender date delayed for health reasons and asked for bond pending appeal. The Court initially denied the motion but, after oral argument and before his surrender date, Hamilton’s renewed motion was granted. He was represented by Paul Clement (former Solicitor General).] EVIDENTIARY ISSUES United States v. Jasso, No. 21-40790, 2023 WL 1879405 (5th Cir. Feb 10, 2023) (per curiam). The Fifth Circuit holds that any error in the admission of a birth certificate at trial was harmless. Jasso was convicted at a jury trial of illegal reentry after removal. Jasso argued at trial that he was born in Texas. The Government introduced Jasso’s Mexican birth certificate, created 7 years after his birth, that was part of his “AlienFile”. The Government also introduced earlier statements by Jasso that he was born in Mexico and was a Mexican citizen, as well as evidence that Jasso used false names on occasion. Jasso’s mother testified that Jasso was born in Los Arrieros, Texas, in 1971 and that she did not register Jasso’s birth in Texas because she did not know how. She also testified that Jasso’s father obtained a birth certificate in Mexico as part of the family’s preparations to move to the United States and that she did not tell Jasso he was born in the United States until 1997. The Court declines to decide whether there was an evidentiary basis to admit the birth certificate. The Court held that even if the district court erred by admitting the birth certificate, it was harmless. The Government also introduced Jasso’s A-File, which contained his application for lawful permanent resident status, and his visa and prior removal proceedings. Also, evidence presented at trial made clear there was no birth certificate from Texas. The Fifth Circuit found any error with the introduction of the birth certificate and the failure to give Jasso’s proffered jury instruction to be harmless. United States v. Valenzuela, 57 F.4th 518 (5th Cir. Jan. 12, 2023). The Fifth Circuit holds that the district court did not abuse its discretion in admitting evidence of a prior conviction for possession of marijuana in Valenzuela’s trial for possession and smuggling of controlled substances under Rule 404(b). Valenzuela was traveling alone into the US from 29
Mexico, and she stated she had nothing to declare. Upon searching her vehicle, officers found meth and fentanyl hidden in the spare tire well, behind a quarter panel, in the doors, and under the dashboard. The only issue at trial was whether Valenzuela acted knowingly or intentionally. The Government introduced evidence of her 2003 guilty plea in state court for possession of marijuana. In that case, Valenzuela drove across the border alone in her own vehicle, indicated that she had nothing to declare, and was found with 61 pounds of marijuana in a hidden compartment in her gas tank. The prior conviction was relevant to show that Valenzuela was not carrying the drugs by mistake. Prior smuggling activities may be relevant to intent, knowledge, and absence of mistake in subsequent trials for smuggling. The differences between the offenses, such as the location of the drugs in the car and the length of time she owned the cars, do not materially detract from the similarity of the offenses. The probative value of the prior conviction was not substantially outweighed by its undue prejudice. While there was a 17-year gap between the conviction and the instant offense, the passage of time is just one fact within the trial court’s discretion. Further the passage of time may be less material here because the evidence was introduced to show her knowledge of drug smuggling practices, and there is no indication that Valenzuela would have forgotten the details of her conviction. United States v. Arthur, 51 F.4th 560 (5th Cir. Oct. 12, 2022). Arthur was charged with 9 counts related to obscene matters that were posted on a website he ran called “Mr. Double.” The day before trial, the district court held a Daubert hearing on Arthur’s proffered expert, Dr. Ley, a licensed clinical psychologist and sex therapist who intended to testify about the literary, artistic, and scientific value of the charged stories and images. (Arthur’s defensive theory was that the stories and images did not satisfy the third prong of Miller’s test: that the “work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24 (1973).) The court excluded the expert, finding that the expert was not qualified and that his methodology was not reliable. The Fifth Circuit disagreed. 30
The Fifth Circuit explained that an expert need not have a degree in art or literature as long as he was qualified based on another basis in Rule 702. Dr. Ley was qualified to testify based on his knowledge and experience: giving presentations on the history of eroticism in literature and art, writing a book about pornography, and conducting clinical and research work. The Court also rejected the argument that Dr. Ley was unqualified because he did not have a specific expertise in depictions of the sexual abuse of babies or children. The Court said such a consideration goes to the weight given an opinion but not its admissibility. Because Dr. Ley was qualified, the exclusion of his testimony on that basis was an abuse of discretion. Excluding the testimony based on unreliable methodology was “manifestly erroneous.” Dr. Ley’s expert report had compared the charged stories and drawings to literature and art that is accepted as having serious artistic or literary value. “Determining whether a work has serious literary or artistic value is not a strictly scientific inquiry,” and neither the district court nor the Government explained why the comparative method is unreliable. Nonetheless, the panel majority was “sure, after reviewing the entire record,” that exclusion of the expert testimony did not affect the verdict. Judge Dennis dissents to this part of the opinion, emphasizing that the expert was Arthur’s sole witness and that the testimony would have supported his theory of defense. Arthur also challenged three of the counts as violative of the First Amendment because the images did not depict “real” minors. The statute, 18 U.S.C. § 1466A(a)(1), specifies that the minor depicted need not be a real minor. The Court held that this did not create a constitutional infirmity because the image must still be “obscene.” Reviewing for obscenity, the Court affirmed two of the convictions but reversed one that was based on a charcoal drawing depicting an adolescent girl alone, reclining, and apparently masturbating. Unlike the other images, that image had no indication the child is being forced to perform a sexual act. Arthur also challenged the denial of his request to copy the charged materials during discovery. The district court had denied based on the ground that the charged materials were child pornography. The parties 31
agreed on appeal that the materials were not child pornography. But to reverse based on a discovery ruling, the defendant must establish prejudice to his substantial rights. Here, Arthur was able to view the materials and have defense experts view the materials at the FBI office. Arthur failed to show that he was prejudiced by the court’s error. [Note: Judge Counts sentenced Arthur to 20 years on Count 1 and 60 months on the other counts, with four of them to run consecutively to Count 1 and the others to run concurrently. With Count 1 vacated, Arthur’s sentence will be reduced to 240 months.] United States v. Hill, 35 F.4th 366 (5th Cir. May 24, 2022). The Fifth Circuit affirms convictions and sentences stemming from a two-week trial with multiple defendants charged with several murder-robberies. The charges stemmed from a scheme to rob armored cars, by shooting and killing the drivers, when they delivered ash to replenish ATMs. The defendants raised numerous arguments on appeal. Of note: ‐ Courtroom removal. The 5C clarifies that the standard of review for a court’s removal of a defendant from the courtroom (based on disruptive behavior) is abuse of discretion, not “narrow discretion,” which is the standard of review for continuing a trial after a defendant has voluntarily left the courtroom or failed to appear altogether. The court did not abuse its discretion here; Hill was warned more than once to stop being disruptive or he would be removed. ‐ Pro se status. The 5C also affirmed the decision to revoke Hill’s pro se status due to his continued disruptions in the presence of the jury. But these outbursts fell “short of the rare circumstances in which a codefendant’s disruption results in incurable prejudice” warranting a mistrial. ‐ Testimony re coded words. The 5C affirmed an officer’s lay testimony explaining the coded words based on his “experiential observations.” Because the officer testified to coded meanings, not common words, it did not usurp the function of the jury.
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‐ Extraction reports not testimonial for Confrontation Clause. The 5C affirmed the ruling that cell phone extraction reports were nontestimonial because they were “raw machine created data,” not reports generated by a person’s analysis. Even if the curated reports extraction reports were testimonial because the officer selected excerpts he deemed relevant, that officer was the correct person to testify about the reports he recreated from the raw data. ‐ Attempted Hobbs Act substantial step. The 5C affirmed an attempted Hobbs Act robbery conviction even though defendant Phillips did not participate on the day of the attempted murderrobbery. There was sufficient evidence that he took substantial steps toward committing the offense, including recruitment of another to the scheme, delivering a burner phone, and driving a person to a meeting to review plans before the bank robbery. ‐ Coconspirator killing by law enforcement as 2B3.1(c)(1) enhancement. The 5C did not decide the issue because any error was harmless. But the 5C acknowledged the point was well taken that the mastermind of the robbery would typically not be considered a victim for sentence enhancement purposes. United States v. Perry, 35 F.4th 293 (5th Cir. May 12, 2022). A sixweek trial of 10 defendants charged in 47 counts resulted in VICAR, RICO, and related convictions and hefty sentences. The defendants raised a host of issues on appeal. Of note: ‐ Credibility of cooperating witnesses. The 5C rejects sufficiency-ofthe-evidence challenges that were based on the credibility or lack thereof of cooperating witnesses. The 5C noted that a defendant can be convicted based on the uncorroborated testimony of a coconspirator who has accepted a plea bargain so long as the coconspirator’s testimony is not “incredible.” Incredible testimony “relates to facts that the witness could not possibly have observed or to events which could not have occurred under the laws of nature.” Here, all the coconspirators were subject to lengthy crossexaminations that the jury witnessed and weighed.
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‐ Rap songs. The 5C finds the district court did not abuse its discretion in admitting three songs performed by one of the defendants. In the songs, the defendant “describes conduct and themes that were directly relevant to the Government’s case.” He argued the Government had not proved he authored the songs, distinguishing this case from US v. Sims, 11 F.4th 315 (5th Cir. 2021). The 5C was not persuaded. ‐ Bruton error harmless. The 5C finds the Bruton error of admitting the evidence referencing a non-testifying co-defendant’s prior guilty plea related to the offense conduct was harmless because of the otherwise ample evidence against the defendant. Note: pay attention to redactions, request limiting instructions, and possibly move for a severance when the Government re-charges offense conduct in a successive prosecution when defendants have already pled guilty to the recharged offense conduct. ‐ Brady violation harmless. The 5C grapples with whether an undated letter from a cooperating witness that said the “federal case is all made up lies” was Brady material that should have been disclosed before trial for impeachment. The 5C concludes the letter “was favorable to the defense,” but failure to disclose was harmless because of “the already extensive impeachment of the government witnesses, the overwhelming evidence of guilt,” and the caution that cooperating witness testimony is to be received with caution. United States v. Hamann, 33 F.4th 759 (5th Cir. May 12, 2022). Hamann was convicted by a Midland jury of conspiring to possess methamphetamine with intent to distribute. The problem? The jury heard testimonial hearsay of two nontestifying witnesses – over defense counsel’s objections – which “flouted Hamann’s right to confront the witnesses against him.” The Court reiterates that testimonial hearsay cannot be introduced to provide context for the investigation. “The Confrontation Clause commands that testimonial evidence be tested ‘in the crucible of cross-examination.’ Crawford v. Washington, 541 U.S. 36, 61 (2004).” “If the government elects to introduce out-of-court statements to attempt to provide context for its investigation, its use must be circumspect and limited.” (cleaned up). 34
This may not sound like a new holding. That’s because it is not. “In the last fifteen years, we have vacated at least six convictions and affirmed at least two writs of habeas corpus for kindred reasons.” But the issue continues to reoccur, and the Court is frustrated: “[W]e are concerned that the government has repeatedly failed to take the lesson. So let us be unequivocal: It is not ‘circumspect’ to introduce a statement accusing the defendant of selling ‘multiple ounces’ of meth. Nor is it ‘limited’ to give a play-by-play account of the defendant selling meth to a confidential informant. If those uses have any probative value in explaining why police began an investigation, they ‘pale in comparison to the risk that the jury will consider [the statements for their] truth.’” (quoting United States v. Sharp, 6 F.4th 573, 582 (5th Cir. 2021)). In Hamann’s case, the Government could not prove there was no reasonable possibility that the evidence complained of might have contributed to the conviction. While Hamann confessed to using and selling meth, he did not admit to the alleged conspiracy. “[Officer] Stanley’s testimony was relevant to proving that Hamann was involved in a meth-dealing conspiracy, and the government repeatedly referenced the subject matter of his testimony during its opening statement and closing argument. So admitting the evidence that incorporated testimonial hearsay was harmful error.” Hamann, who had been sentenced to 360 months, has his conviction vacated, and the case is remanded to the district court. United States v. Williams, 30 F.4th 263 (5th Cir. Mar. 29, 2022). The Government appealed from the district court’s pretrial order excluding certain evidence of Williams’ tax history predating the charged conduct. The court had found the evidence was improper “other act” evidence under Rule 404(b) and, alternatively, inadmissible under the Rule 403 balancing test. The Fifth Circuit affirms, finding the district court did not clearly abuse its discretion. First, the Court clarifies what the district court excluded—a narrower universe of evidence than the Government claimed. Then the Court finds that, even if the evidence was permissible under 404(b), the court did not clearly abuse its discretion by excluding 35
the evidence under 403. “[T]he district court identified substantial risks from admitting Williams’s tax history. Admitting the evidence gives the jury the chance to decide the case on an improper basis: Williams is guilty because he is the type of person who doesn’t follow the tax laws.” And reversal is not warranted because the court’s evidentiary ruling is subject to modification. The court could reassess the challenged ruling as evidence develops during trial. United States v. Lara, 23 F.4th 459 (5th Cir. Jan. 11, 2022). Two sisters were convicted by a Del Rio jury of attempting to import 38kg of meth into the US, hidden in the truck’s tires. They were each sentenced to a below-Guidelines sentences of 288 months’ imprisonment. The Fifth Circuit affirms their convictions and sentences after considering numerous issues on appeal: ‐ Improper expert opinion testimony by a Border Patrol agent. First, a critical preservation point. The district court had GRANTED a motion in limine to prohibit improper expert opinion testimony. The Laras did not object when the agent started to testify about improper opinion testimony. On appeal, the parties dispute the standard of review. The Fifth Circuit says plain-error review applies: “When a district court grants a party’s pretrial evidentiary objection, that party must contemporaneously object to any evidence it believes contravenes the district court’s previous ruling. If the party does not object, the admission of that evidence is reviewed for plain error.” Second, on the merits, the agent gave the functional equivalent of testimony that the Laras knew drugs were hidden in the tires because the agent ultimately testified “that drug couriers ‘usually’ know that they are transporting drugs.” Admitting this testimony was error under FRE 704(b). That error was clear because this case is indistinguishable from United States v. Gutierrez-Farias, 294 F.3d 657 (5th Cir. 2002). But this error did not affect the Laras’ substantial rights because considerable evidence supported the verdict. ‐ Impermissible comment on the Laras’ silence. The Fifth Circuit finds that the prosecutor’s comments in opening (asking why someone would act in the way the Laras did), in context, were not 36
impermissible comments on the Laras’ decision not to testify. The comments in closing (noting that the jury had no direct statements from the Laras) were a closer call, but the Laras did not satisfy their burden on plain-error review to show any error was obvious and substantially prejudicial. ‐ Evidence was sufficient. In hidden compartment cases, the Fifth Circuit has emphasized lies and inconsistent statements. Here, there was ample evidence of the Laras’ consciousness of guilt. They were told numerous times, in different ways, not to mention the trip to Mexico and back to anyone. They lied to port of entry and checkpoint officers. And the hidden meth had a street value of $7.4 million. SUFFICIENCY OF EVIDENCE/PROVING AN OFFENSE United States v. Freeman, 56 F.4th 1024 (5th Cir. Jan. 6, 2023). In Freeman’s jury trial, the government presented no direct evidence that Freeman possessed a firearm. But the jury saw videos of Freeman running from the police, heard testimony that suspects who run often have narcotics or weapons in their possession, and heard that police recovered a gun in a field about 20 feet from Freeman’s flight path, near where he gave up the chase. The government also presented evidence that there had been a major storm the night before that would have left markings on the gun that it did not have, and that witnesses familiar with the area had not seen anyone go into the field. The Fifth Circuit affirms the conviction, finding that the jury could easily infer that Freeman threw the firearm in the field before surrendering to the police. United States v. Yusuf, 57 F.4th 440 (5th Cir. Jan. 6, 2023). Yusuf went to trial on his § 1324 charge, but he failed to preserve his sufficiency challenge because he did not renew his motion for judgment of acquittal after the defense rested. The Fifth Circuit reiterates how difficult it is to win an unpreserved sufficiency challenge on appeal: “the movant must prove that the evidence was so completely, obviously, and unbelievably inadequate that allowing the verdict to stand would be a ‘shocking’ and ‘manifest miscarriage of justice.’” The Court compares it to “the eye of a virtually impassable needle.” Yusuf does not thread that needle. He was 37
the sole driver and occupant of the truck in the trailer of which 84 noncitizens were discovered. “[T]hat alone is probative of knowledge.” And there was conflicting testimony between Yusuf and some of the noncitizens. The jury was entitled to discredit Yusuf’s testimony. United States v. Green, 47 F.4th 279 (5th Cir. Aug. 24, 2022). Codefendants Green and Selgas appealed their tax-fraud related convictions. They challenged the sufficiency of evidence to support the convictions for conspiracy to defraud, arguing that the Government had to first prove that the IRS complied with its administrative requirements before the defendants interfered with lawful IRS functions. The Fifth Circuit disagreed. First, the central feature of the conspiracy is the agreement, not whether the object of the agreement was achieved. Second, the IRS’s compliance with its own administrative procedures is not relevant to whether the object of the conspiracy was to interfere with the IRS’s lawful functions. There was sufficient evidence to find an agreement to defraud the IRS. Selgas also challenged the sufficiency of the evidence supporting his taxevasion conviction, which has as an element the existence of a tax deficiency. He argued that he did not have a “tax deficiency” as a matter of law because the Government did not prove that the IRS followed its statutory provisions related to the assessment of taxes. The Court disagreed, finding that “a formal assessment is one piece of evidence that may prove the existence of a tax deficiency or a tax due and owing, but is not a requirement.” The defendants also challenged the jury instructions, but their arguments were subject to, and failed under, plain-error review. Even though they had submitted 30 jury instructions, they failed to request them or object to their exclusion during the charge conference. United States v. Harbarger, 46 F.4th 287 (5th Cir. Aug. 18, 2022). Harbarger was charged with illegally possessing an unregistered firearm, specifically a “destructive device” under the National Firearms Act. The device was a 7.5-inch-long piece of bamboo with a penny capping one end and a short fuse at the other end. Harbarger said he had it to remove beaver dams. The district court denied his motion to dismiss the 38
indictment, which argued the NFA was unconstitutionally vague. A jury convicted him based on the ATF agent’s testimony that the device would fragment on being ignited, the two caps erupt, and it could destroy property. The Fifth Circuit found this evidence insufficient. Drawing from the analysis of other circuits, the Court concluded that “when there is doubt whether a device that has some social value and legal use nonetheless falls within the NFA’s ambit, evidence of scienter or evidence that the device can be used solely for illegal purposes is necessary to sustain a conviction.” Here, “breaking up a beaver dam cannot alone sustain a finding that a flimsy explosive device is designed as a weapon, and these fragments do not resemble in dangerousness the relevant fragmentation in other cases.” The government did not replicate the device and test them, provide any other meaningful evidence from which the design to create weaponry could be inferred, or contradict Harbarger’s expressed intent. It did not “prove the bamboo stick was an illegal explosive device ‘designed’ as a weapon.” Because the evidence was insufficient, the Court did not address Harbarger’s vagueness argument. United States v. Cooper, 38 F.4th 428 (5th Cir. June 22, 2022). Cooper was convicted of conspiracy to commit health care fraud, receipt of illegal kickback payment, and making illegal kickback payments. The Fifth Circuit reverses his convictions for paying illegal kickbacks because the Government failed to prove he paid TRICARE beneficiaries to “refer” individuals to doctors and pharmacies for products to be paid by TRICARE. The Court rejects the Government’s argument that “refer” can include self-referrals (Cooper’s payments to beneficiaries to induce them to refer themselves to doctors and pharmacies). “Refer” should be given a technical meaning, and that meaning does not cover paying beneficiaries to obtain a product for their own use. Cooper’s actions were not covered by this felony offense. The Court affirms his other convictions. The conspiracy to commit health care fraud was not dependent on the now-vacated kickback convictions; the Government simply had to prove an agreement to defraud TRICARE. Cooper argued his conviction for receipt of illegal kickbacks failed because “person” in the statute does not cover the LLC pharmacy from which he received payment. The Court disagreed, finding that “person” in 42 U.S.C. § 1320a-7b(b)(1)(A) includes corporations and partnerships, 39
and “corporation” is a broad enough term to encompass LLCs, which did not exist when the statute was enacted. United States v. Mearis, 36 F.4th 649 (5th Cir. June 8, 2022). Mearis contended there was insufficient evidence to support his conviction for sex trafficking of a minor for his conduct involving T.V. in violation of 18 U.S.C. 1591(a), (b), and (c). This was reviewed de novo with substantial deference to the jury verdict and must be affirmed “’if, after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” A reasonable jury could find that Mearis recruited, harbored, or maintained T.V. as he restricted her movements, locked her in the apartment, sexually assaulted her, and threatened to kill her. Mearis had L.C. recruit T.V. on Mocospace, a use of the internet that established the required nexus with interstate commerce. The evidence is sufficient as to his knowledge of her age as T.V. told Mearis she was only 14 and his conduct with her followed a pattern of conduct with his other victims. Mearis also argued that the prosecutor made an improper argument that denied him a fair trial. After defense counsel challenged the credibility of the four women who had testified, the prosecutor reinforced how young the women had been and continued, “Stop him from preying on women and children … End it today. Find him guilty as charged.” The Fifth Circuit found argument was not improper. “Counsel is accorded wide latitude during closing argument” and is “entitled to make a fair response in rebuttal to the arguments of defense counsel.” The prosecutor did not to share any personal opinions, speak to the credibility of the witnesses, or suggest the evidence of anything not presented at trial. The judgement affirmed. United States v. Perry, 35 F.4th 293 (5th Cir. May 12, 2022). A sixweek trial of 10 defendants charged in 47 counts resulted in VICAR, RICO, and related convictions and hefty sentences. The defendants raised a host of issues on appeal. The one that results in reversal was that certain 924(c) convictions were based on using a firearm in furtherance of a crime of violence (RICO) or drug trafficking offenses. But RICO offenses are not COVs, US v. McClaren, 13 F.4th 386, 412-14 (5th 40
Cir. 2021), and the Government relinquished its harmless-error argument. United States v. Cabello, 33 F.4th 281 (5th Cir. May 5, 2022). The Fifth Circuit affirmed Cabello’s conviction of aiding and abetting the possession of methamphetamine with intent to distribute it. Cabello, who knew the co-defendant Garcia had meth on him, drove him to the deal and understood he would get $100. When they got there, the undercover officers arrested both of them. On appeal, Cabello for the first time argues that the indictment was insufficient on two grounds. First, the indictment alleged that the defendants, aided and abetted by each other, “to possess”—instead of “possessed”—with intent to distribute a controlled substance. Cabello argued that aiding and abetting itself is not a crime, just a theory of liability, and the district court should have dismissed the indictment sua sponte. The Court disagreed, pointing to the caption that clearly referred to 21 U.S.C. § 841(a)(1) as the relevant offense. It concluded the indictment merely had a typo, and no one could reasonably wonder what the grand jury alleged. Second, the indictment did not expressly allege knowing or intentional possession of the drugs. The Court disagreed, because the indictment cited the statutory section and because the district court instructed the jury on mens rea. Cabello also argues the evidence was insufficient because the Government did not prove that Cabello knew Garcia intended to get meth before going to the friend’s house to get it—only that he knew about the meth before going to deliver it. The Court held that an aider-and-abettor does not have to have knowledge before the possession begins. Because possession is “an ongoing act,” he “can have knowledge of the principal’s possession while the possession is ongoing.” The Court also held that Cabello could not show plain error or manifest miscarriage of justice. Lastly, Cabello argues the district court’s Allen charge coerced the jury— which deliberated for seven hours—into convicting him. After some discussion and criticism of the Court’s Allen charge jurisprudence, the Court holds that Cabello waived his Allen claim: 41
The district judge suggested giving the charge in the evening of the jury’s first day of deliberations. The prosecutor hinted that it might be best to hold off until the next morning. It was Cabello’s own attorney who said: “Do it tonight. They’re here.” The judge, playing it safe, then gave him an out by asking, “any objection?” The defense’s answer was unambiguous: “No, sir.” That conversation was an “intentional relinquishment or abandonment” of any right not to have an Allen charge given at that time. … Cabello can’t ask the court to give an Allen charge at a given time, get his wish, and then fault the court for doing exactly what he asked it to do. United States v. Dubin, 27 F.4th 1021 (5th Cir. Mar. 3, 2022) (en banc). William Dubin and his son David were convicted of Medicaid fraud offenses and their sentences were enhanced, under 18 U.S.C. § 1028A(a)(1), for using, without lawful authority, a means of identification of another person. The issue on appeal was whether there was sufficient evidence for the enhancement when the Dubins had lawful authority to use the patient’s identification to bill Medicaid for services but where they used the identification fraudulently to bill for services not rendered. There is a circuit split on this issue. The Fifth Circuit en banc majority joined the Fourth Circuit, see United States v. Abdelshafi, 592 F.3d 602 (4th Cir. 2010), in holding that such conduct was covered by the statute. The dissenting judges argued that the Fifth Circuit should follow the Sixth Circuit, see United States v. White, 846 F.3d 170 (6th Cir. 2017), the Seventh Circuit, see United States v. Spears, 729 F.3d 753 (7th Cir. 2013) (en banc), the Ninth Circuit, see United States v. Hong, 938 F.3d 1040 (9th Cir. 2019), and Eleventh Circuit, see United States v. Munksgard, 913 F.3d 1327 (11th Cir. 2019), in holding that such conduct does not constitute identity theft under this statute. This issue may be headed to the Supreme Court so be sure to preserve it in the district court. United States v. Swenson, 25 F.4th 309 (5th Cir. Feb. 2, 2022). Swenson was charged with a scheme to defraud adoptive parents through her adoption agency. The scheme involved double matching—matching two prospective families, the Neidrich and the Cuschieries families, with 42
one birth mother and receiving payments from both families. There were four counts but Swenson was convicted of only one mail fraud count involving a check for $1800. The Fifth Circuit held that there was sufficient evidence of fraud because Swenson was communicating with both families about being matched, had matched the birth mother with the Cuschieries, and at the same time requested additional funds from the Neidriches for that match. It did not matter that Swenson had returned the $1800 check to the Neidriches because the government doesn’t have to prove an actual loss. However, “we note that a loss did actually occur because the Neidriches were deprived of their property rights to the $1800 while defendant possessed the cashier’s check.” V.
MISCELLANEOUS TRIAL MATTERS
United States v. Montemayor, 55 F.4th 1003 (5th Cir. Dec. 19, 2022). Montemayor and Cerda were convicted after trial of participating in a drug-trafficking conspiracy and a conspiracy to possess a firearm to further a drug conspiracy and a crime of violence (multiple carjackings). Defendants appealed multiple issues and, for the most part, affirmed. The Fifth Circuit vacates two counts of discharging a firearm under § 924(c)(1) for violating Double Jeopardy because, though they alleged separate incidents on different dates, multiple firearm counts under § 924(c)(1) cannot be predicated on the same drug conspiracy. However, the Court finds no plain error on two separate counts of brandishing a firearm during and in relation to a drug trafficking offense AND during a crime of violence. Though neither of those counts expressly identifies the crime of violence, each count is immediately preceded in the indictment by the relevant crime of violence. The dates of those respective crimes of violence are clearly shown in the verdict forms for the firearm offense. § 924(c)(1)(A) sets out the penalty for people who use or carry a firearm “during and in relation to a crime of violence or drug trafficking crime.” Because these two counts were predicated on both an offense of drug trafficking and on a crime of violence, and the evidence of each of 43
the violent crimes was undisputed, based on the record there was neither a double jeopardy problem nor a risk the jurors relied only on an improper predicate offense. The Court finds no plain error when the indictment, jury instructions, and jury verdict form (and the Government’s arguments) conflated the two standards in § 924(c)(1)(A), which identifies two different types of conduct: the use or carrying of a firearm during and in relation to any crime of violence or drug trafficking crime and the possession of a firearm in furtherance of any such crime. While first two prongs of plain error review satisfied, the Court holds that the fairness, integrity, and public reputation of the proceedings were not affected because there was sufficient evidence that Defendants agreed to use firearms during and in relation to a crime of violence or drug trafficking. The Court finds no plain error where judge briefly made untranslated remarks in Spanish during the trial. Court did caution that all proceedings should be in English or translated to English for the record. Finally, the Court holds that the district court’s error in determining the drug quantities attributable to each defendant at sentencing did not warrant reversal. The jury “clearly” should have been given the factual issue of the relevant drug quantities, so plain error occurred. Defendant’s substantial rights were also affected, but the error did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. United States v. Tucker, 47 F.4th 258 (5th Cir. Aug. 24, 2022). Section 922(g)(4) of Title 18 of the U.S.C. prohibits the possession a firearm by a person who “has been adjudicated as a mental defective or … has been committed.” Tucker’s indictment alleged only the first ground— adjudication. But the district court charged the jury that Tucker could be convicted for either having been adjudicated or committed. The Fifth Circuit holds that this plainly was a constructive amendment of the indictment. The Court finds that the error also affected Tucker’s substantial rights. Factually, Tucker had not been adjudicated a “mental defective.” He had been involuntarily committed on two occasions, a fact that was emphasized during trial. And whether someone has been adjudicated as a “mental defective” is a question of law, not fact; that 44
question should not have been submitted to the jury. The Court further holds that the phrase “mental defective” must be interpreted narrowly— an “archaic class of intellectual disability,” not “any diagnosis involving a danger to oneself or others.” This plain error warrants reversal and, because the evidence cannot support the indictment, remand is unwarranted. Note: Tucker represented himself on appeal and throughout most of trial. United States v. Crittenden, 46 F.4th 292 (5th Cir. Aug. 18, 2022) (en banc). Crittenden and his wife were convicted by a jury of possession with intent to distribute 500 grams or more of methamphetamine. The district court (Judge Briones) granted Crittenden’s motion for new trial, and the Government appealed. In 2020, the Fifth Circuit initially affirmed the district court’s order but then, after further reflection, remanded the case for the limited purpose of allowing the district court to clarify whether it had granted a new trial because the evidence was insufficient or because, despite the sufficiency of the evidence, it preponderated heavily against the guilty verdict. On remand, the district court clarified that, “though the evidence was sufficient to support a conviction, the court had cautiously reweighed the evidence and found that it preponderated heavily against Crittenden’s guilt” because it failed to show Crittenden know “the nature of the controlled substance he possessed[.]” The panel majority (Judges Elrod and Dennis) affirmed, finding that the district court “cautiously reweighed the evidence, determined that a mistake had been committed, and permissibly granted a new trial to ‘prevent a miscarriage of justice.’” Crittenden, 25 F.4th at 350 (quoting United States v. Robertson, 110 F.3d 1113, 1117 (5th Cir. 1997)). Judge Costa dissented, arguing that juries, not judges, decide trials, and that the verdict here comes “nowhere close” to a miscarriage of justice. The en banc Court reversed the order granting the motion for new trial and reinstated the jury’s verdict. In an opinion written by Judge Costa, the Court explained that, when the evidence was sufficient to support the verdict, the trial court can order a new trial only under exceptional occasions: when the evidence weighs “heavily against the verdict” and the “verdict may have resulted in a ‘miscarriage of justice.’” This is not one of those “exceptional cases.” Evidence showed that Crittenden knowingly possessed an illegal substance: a confession, a codefendant’s testimony, 45
and compelling circumstantial evidence. “Because the district court either improperly discounted or overlooked this evidence, it abused its discretion in ordering a new trial.” Judge Elrod (joined by Judges Dennis and Graves) dissented. She emphasized that the district court sat through trial and did not take his role lightly. “District courts have historically exercised discretion in granting new trials precisely because of the perspective they have that we do not.” United States v. Rodriguez, 41 F.4th 728 (5th Cir. July 26, 2022). In a cross-appeal, the Government asks the Court to vacate the district court’s oral order permanently barring a particular AUSA from appearing in his courtroom. Courts have an inherent power to issue sanctions against attorneys for bad faith conduct in litigation, but that is a high threshold, and the court must make a specific finding that the attorney acted in bad faith. Here, the court did not make that finding and thus abused its discretion. The exclusion order is vacated, and Rodriguez’s healthcarefraud conviction and sentence are affirmed. Judge Ho concurs to shed some light on the exclusion issue. According to the USAO for the SDTX, the excluded AUSA had been belittled years prior by the same district judge based on her sex by stating: “It was lot simpler when you guys wore dark suits, white shirts and navy ties…. We didn’t let girls do it in the old days.” In that appeal, the Fifth Circuit said such comments are “demeaning, inappropriate, and beneath the dignity of a federal judge.” United States v. Swenson, 894 F.3d 677, 681 n.3 (5th Cir. 2018). Ho surmises that the district judge issued the exclusion order to punish the AUSA for the USAO’s briefing in Swenson. Noting that the judge must believe he was falsely accused of sex discrimination, Ho commented, “it’s hard to imagine a less persuasive way for a judge to rebut the charge that he discriminated against a female attorney than by expelling her from his courtroom—not just in one case, but in every case that she may bring for the rest of her career.” United States v. Castillo-Rubio, 34 F.4th 404 (5th Cir. May 13, 2022). The Fifth Circuit affirms Castillo’s drug conspiracy convictions and life sentences. Castillo challenges, among other issues, the use of an 46
anonymous jury and safety measures. The Court finds no abuse of discretion because Castillo was charged with serving at the highest level of an organized criminal cartel that has a “notorious propensity to use violence to maintain its drug trafficking operation[.]” The court did not abuse its discretion by concluding the cartel’s bribes demonstrated past attempts to interfere with the judicial process and that the trial might have drawn extensive media interest, even though ultimately there was not media coverage. United States v. Sheperd, 27 F.4th 1075 (5th Cir. Mar. 8, 2022). Anne Sheperd was charged with healthcare fraud. Unbeknownst to her, the lawyer who represented her until days before trial also represented the Government’s star witness. As the Court says, “Oops.” Sheperd went to trial with different counsel, was sentenced to 30 years, and argues on appeal that she was denied effective assistance of counsel. The Fifth Circuit agrees that “effective assistance demands conflict-free representation” even during the pre-trial stage. Even in actual-conflict cases, though, defendants still must show prejudice—that the conflict adversely affected the representation itself. “One way defendants can answer that mixed question of law and fact is through ‘evidence that counsel’s judgment was actually fettered by concern over the effect of certain trial decisions on other clients.’” United States v. Infante, 404 F.3d 376, 391 (5th Cir. 2005). Finding insufficient evidence in the record to make that determination, the Fifth Circuit remands for an evidentiary hearing to determine what advice counsel gave or did not give the defendant, what he did or did not do for the defendant, and what counsel’s motives here for action or inaction. VI.
CATEGORICAL APPROACH
United States v. Sosebee, 59 F.4th 151 (5th Cir. Feb. 1, 2023). Sosebee was convicted of being a felon in possession of ammunition and sentenced pursuant to the Armed Career Criminal Act because he had been convicted in Texas state court of Robbery and, on two separate occasions, Burglary of Habitation. Sosebee challenged the ACAA sentencing enhancement. 47
The Fifth Circuit affirms. The Court, relying on its decision in United States v. Garrett, holds that to determine whether a conviction is a valid ACAA predicate conviction, they must “look at the statute itself and examine the elements of that crime” and “apply a categorical analysis to determine whether the statute itself necessarily and invariably requires the use of threatened use of physical force.” The Texas robbery statute is “divisible,” creating some violent and some non-violent crimes. Specifically, the robbery-by-injury was not a violent crime for ACAA purposes, but the robbery-by-threat is. The Court looked at the indictment and the judicial confession to determine under which robbery offense Sosebee was convicted. Because his conviction recited the statutory language pertaining to robbery-by-threat, and made no mention of robbery-by-injury, the Court is bound by Garrett and affirms Sosebee’s ACAA-enhanced sentence. United States v. Clark, 49 F.4th 889 (5th Cir. Sept. 14, 2022). The Fifth Circuit overruled the district court’s determination that Clark was not subject to the ACCA’s 15-year mandatory minimum sentence. The Court found that Clark had the requisite prior convictions: Texas aggravated assault by threat of bodily injury is committed intentionally or knowingly and constitutions an ACCA violent felony. Texas aggravated assault by bodily injury is not an ACCA violent felony because it can be committed recklessly. See Borden v. United States, 141 S. Ct. 1817 (2021). Texas burglary of habitation is an ACCA violent felony under United States v. Herrold, 941 F.3d 173, 182 (5th Cir. 2019). The Court rejected the argument that the Government invited error by conceding, at the time of sentencing (when the case law held differently), that it was not a violent felony. Texas delivery under Texas Health and Safety Code § 481.112(a) is an ACCA serious drug offense. The Court rejected Clark’s effort to distinguish United States v. Prentice, 956 F.3d 295 (5th Cir. 2020), which addressed Texas possession with intent to deliver, and found that Clarks’ argument that § 481.112 could be violated by fraudulent offer to sell had been rejected by the Court in OchoaSalgado v. Garland, 5 F.4th 615, 620-21 (5th Cir. 2021). 48
United States v. Stoglin, 34 F.4th 415 (5th Cir. May 17, 2022). Stoglin was convicted of two counts: a drug trafficking conspiracy involving 28 grams or more of cocaine base, and a 924(c) possessing a firearm in furtherance of the drug trafficking offense. The indictment alleged that Mr. Stoglin had a prior “serious violent felony” conviction based on his Texas conviction for aggravated assault with a deadly weapon. Because of the 841(b)(1)(B) “serious violent felony” enhancement, Stoglin’s sentencing range on the drug count was 10 to life, meaning a Guidelines range of 120 months. Without the enhancement, the range would have been 60 to 71 months. The district court sentenced him to 120 months on the drug count plus 60 months for the 924(c). After Stoglin’s sentencing, the Supreme Court held in Borden that reckless mens rea is not enough to conclude that an offense required the “use of physical force against the person of another.” US v. Gomez Gomez, 23 F.4th 575, 577 n.1 (5th Cir. Jan. 18, 2022) (describing how to interpret Borden’s 4-1-4 split decision). Recently, the Fifth Circuit held that Texas aggravated assault with a deadly weapon under Tex. Penal Code 22.01(a)(1) & 22.02(a)(2) is not an aggravated felony. Id. On appeal, the Government conceded that Stoglin’s aggravated assault with a deadly weapon is not a serious violent felony post-Borden, and the Court agreed. But the Government argued the Fifth Circuit should not exercise its discretion to reverse given the severity of Stoglin’s conduct. The Court disagreed, noting that such an argument is appropriate for determining whether Stoglin ultimately warrants a lower sentence, but “it is misplaced in this court’s consideration of the propriety of a remand.” The Court vacates the sentence and remands for resentencing. United States v. Belducea-Mancinas, No. 20-50929, 2022 WL 1223800 (5th Cir. Apr. 26, 2022) (unpublished). Belducea pleaded guilty to a drug trafficking offense and was sentenced as a career offender because he had at least 2 prior federal convictions for conspiring to possess with the intent to distribute marijuana. On appeal he argued that those pre-2018 convictions are not §4B1.2 “controlled substance offenses” (CSOs) because the definition of controlled substance at the time of the prior convictions was broader (because it included hemp) than it was at 49
sentencing (when “marijuana” was defined to exclude hemp). Congress had amended the marijuana definition in the 2018 Farm Bill. The Fifth Circuit found that any error was not plain. Judge Higginson concurred with the result but wrote separately to explain that there was error: the pre-2018 convictions are not CSOs. He says that the 4B1.2 definition of “controlled substance” incorporates the federal Controlled Substances Act (CSA) definition. See US v. GomezAlvarez, 781 F.3d 787 (5th Cir. 2015). And, as other circuits have found, the current CSA controls that definition, not the version of the CSA in effect at the time of the prior conviction. See US v. Abdulaziz, 998 F.3d 519, 524-31 (1st Cir. 2021); US v. Bautista, 989 F.3d 698, 703-04 (9th Cir. 2021); US v. Williams, 850 Fed. App'x 393, 398 (6th Cir. 2021) (unpublished); see also US v. Hope, 28 F.4th 487, 504-05 (4th Cir. 2022) (in the Armed Career Criminal Act context). Note: This argument applies to prior state marijuana convictions as well, as long as the state definition of “controlled substance” at the time of the prior conviction included hemp. United States v. Garner, 28 F.4th 678 (5th Cir. Mar. 21, 2022). Louisiana aggravated assault can be committed negligently, and therefore is NOT a 4B1.2 crime of violence. This case addressed whether an amendment to Louisiana Revised Statute 14:37.4 meant that aggravated assault had a higher mens rea than negligence. The Government argued that a definitional change from “an assault committed by the discharge of a firearm” to “an assault committed with a firearm” removed the only requirement that a defendant could commit negligently. The Fifth Circuit disagreed – because the Louisiana courts had interpreted the amended statute to still criminalize negligent discharge of a firearm. Negligence is not enough to satisfy the 4B1.2 crime of violence force clause. Nor is it enough to satisfy the definition of generic aggravated assault. Garner’s 2K2.1 sentence is vacated and remanded. United States v. Rodriguez-Flores, 25 F.4th 385 (5th Cir. Feb. 11, 2022). Texas sexual assault under 22.011(a)(1) can be committed without force and therefore is NOT an aggravated felony, so the judgment must be reformed to say 1326(b)(1), not (2). The Government argued any error 50
was not plain because whether 22.011(b) – which describes 14 situations in which sexual assault under (a)(1) is without the consent of the other person – is divisible had not been decided. The Fifth Circuit reminds us about how Mathis says to distinguish elements from facts. Not every “alternatively phrased law” is divisible. Mathis says to look first for a state court decision that definitively answers the question and to consider the statute on its face. Here, numerous state cases found (b) to be indivisible. Thus, a straightforward application of Mathis determines the result. The Fifth Circuit rejects the Government’s argument that unanimous opinions of the intermediate state appellate courts were insufficient to make the error obvious. “Precedent from this court or the highest state criminal court is not necessarily required to establish plain error. See United States v. Guillen-Cruz, 853 F.3d 768, 772 (5th Cir. 2017) (holding that error was obvious “[n]otwithstanding the lack of precedent,” because it was “plain from the face of the relevant statutes and regulations”).” United States v. Bates, 24 F.4th 1017 (5th Cir. Feb. 7, 2022). Noting that United States v. Gomez-Gomez, 23 F.4th 575 (5th Cir. 2022), held that Borden is not limited to the ACCA context, the Fifth Circuit finds that Texas assault of a public servant, which can be committed recklessly, is not a crime of violence under 4B1.2. The Fifth Circuit dropped a footnote that the parties did not address whether Texas assault on a public servant could be a 4B1.2 COV as the enumerated offense of aggravated assault, so it does not address that possibility. [Note: Seems like a huge stretch for assault of a public servant to meet the definition of generic aggravated assault, which usually has causation of serious bodily injury or the use of a deadly weapon as an aggravating factor. See US v. Mungia-Portillo, 484 F.3d 813 (5th Cir. 2007).] United States v. Garrett, 24 F.4th 485 (5th Cir. Jan. 25, 2022). The Fifth Circuit finds that the Texas simple robbery statute is divisible. This is important because Texas Penal Code § 29.02(a)(1), robbery-by-injury, includes a recklessness mens rea, but (a)(2), robbery-by-threat, does not. Because it was divisible, the Fifth Circuit applied the modified categorical approach and determined Garrett was convicted of TX robbery by intentionally or knowingly threatening or placing another in fear of imminent bodily injury or death – robbery-by-threat. That offense, 51
under § 29.02(a)(2), satisfies the force element clause and is an ACCA violent felony. [Note: Days before the decision was issued, Garrett had asked the Court to certify the divisibility question to the Texas Court of Criminal Appeals, relying on Whole Woman’s Health v. Jackson and some other cases where the Fifth Circuit had certified questions of state law. The Court denied that motion.] United States v. Gomez-Gomez, 23 F.4th 575 (5th Cir. Jan. 18, 2022). The parties and the Fifth Circuit agreed that Texas aggravated assault with a deadly weapon under § 22.01(a)(1) and § 22.02(a)(2) does not have a force element post-Borden. That means it is not an aggravated felony, and the judgment needs to be reformed to show conviction under § 1326(b)(1) not § 1326(b)(2). The opinion includes a nice footnote you can use when citing Borden that explains how the Fifth Circuit interprets the Borden 4-1-4 decision. [Note: Because it does not have a force element, Texas aggravated assault with a deadly weapon is not an ACCA violent felony, and is not a 18 U.S.C. § 924(c) crime of violence (COV). But “aggravated assault” is enumerated in §4B1.2 as a COV, which Gomez Gomez doesn’t address. The Fifth Circuit has denied our enumerated assault arguments in the past, United States v. Guillen-Alvarez, 489 F.3d 197 (5th Cir. 2007), but the Fourth and Ninth Circuits are on our side.] Diaz Esparza v. Garland, 23 F.4th 563 (5th Cir. Jan. 17, 2022). Texas deadly conduct conviction IS a crime involving moral turpitude (CIMT) even though it can be committed recklessly. The Fifth Circuit distinguished Gomez-Perez v. Lynch, 829 F.3d 323 (5th Cir. 2016), which held that misdemeanor assault includes reckless conduct (is not divisible) and is not a CIMT. Misdemeanor assault encompasses “relatively minor physical contacts” whereas deadly conduct requires “imminent danger of serious bodily injury.” The Court explains that both (1) a scienter requirement and (2) a conduct element requiring a meaningful level of harm are critical to the CIMT inquiry. Because the potential harm is grave, a reckless mens rea suffices. The Court then finds Diaz Esparza’s adjustment to lawful permanent status was an operative admission for purposes of the removal proceeding, and he was convicted of two CIMTs after that admission. Thus, he is deportable.
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United States v. Fuentes-Rodriguez, 22 F.4th 504 (5th Cir. Jan. 7, 2022). The parties and the Fifth Circuit agreed that Texas assault family violence is not an aggravated felony (no force element) post-Borden. Parties disputed whether the Court should reform the judgment (to say § 1326(b)(1) instead of § 1326(b)(2)) or whether the case should be remanded for entry of an amended judgment. The Court chose the latter: “due to the frequent use of district court judgments of conviction by judges, attorneys, and others, we find remanding this case for entry of an amended judgment will reduce the risk of future confusion. See United States v. Rios Benitez, No. 20-10494, 2021 WL 5579274 at *1 (5th Cir. Nov. 29, 2021) (per curiam) (remanding to the district court). Thus, we vacate the district court’s judgment and remand the case to the district court to enter a reformed judgment reflecting that Fuentes-Rodriguez was convicted and sentenced under 8 U.S.C. § 1326(b)(1) as an ‘Alien Unlawfully Found in the United States after Deportation, Having Previously Been Convicted of a Felony.’” United States v. Greer, 20 F.4th 1071 (5th Cir. Dec. 20, 2021). The parties and the Fifth Circuit agree that Texas assault family violence impeding breath/circulation (Tex. Penal Code § 22.01(a)(1) & (b)(2)(B)) and Texas assault family violence with previous convictions (Tex. Penal Code § 22.01(a)(1) & (b)(2)(A)) are NOT crimes of violence under §4B1.2 thanks to Borden. The Government argued the calculation error was harmless. The Court disagreed, explaining that even though the district court discussed why it imposed the 120-month sentence, the court said it was sentencing under the Guidelines, so it was not clear the court would have sentenced to 120 absent the calculation error. VII. SENTENCING STATUTORY CHALLENGES United States v. Grzywinski, 57 F.4th 237 (5th Cir. Jan. 5, 2023). Grzywinski was convicted of attempting to produce child pornography and received an enhanced sentence under 18 U.S.C. § 2251(e) for a prior conviction relating to abusive sexual contact involving a minor. Grzywinski claimed that aggravated sexual assault of a child under 53
Texas law did not qualify as a prior conviction because the Texas law only applied to minors under age 17, whereas recent Supreme Court precedent (applying an immigration law) held that the generic federal definition of sexual abuse of a minor requires the age of the minor to be less than 16. The Fifth Circuit rejected the argument because, for purposes of Chapter 110 of Title 18 (where § 2251(e) is located), “minor” is defined as any person under 18 years. Thus, the Court held that the case did not concern a generic federal definition, but a statutory definition. And because the Texas law sweeps more narrowly than the statutory definition, Grzywinski’s Texas conviction qualified as an enhancing offense. United States v. Palomares, 52 F.4th 640 (5th Cir. Nov. 2, 2022). Under 18 U.S.C. § 3553(f)(1), a defendant is eligible for relief under the First Step Act’s safety valve provision only if: (1) the defendant does not have— (A) more than 4 criminal history points, excluding any criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense as determined under the sentencing guidelines. The Fifth Circuit considered whether a defendant was ineligible if they failed any one of three subsections or if they were ineligible only if they failed all of the subsections. The majority (Judges Jolly and Oldham) held that the use of an em-dash after “does not have” distributed that phrase to each subsection, so that to be eligible a defendant must show that he does not have more than 4 criminal history points, does not have a 3point offense, and does not have a 2-point violent offense. The majority noted that the ordinary meaning of “and” is typically conjunctive, but it noted that “and” also can be (and is in this case) distributive. The majority also said that its construction avoided violating the canon against surplusage, noting that if a defendant was ineligible only if he failed (A), (B), and (C), (A) would be surplusage because every criminal defendant with a 2-point violent offense and a 3-point offense (satisfying (B) and (C)) would have at least 5 criminal history points (satisfying (A)). The majority also held that the rule of lenity did not apply because the 54
statute was not ambiguous after considering canons of statutory construction. Judge Oldham concurred, emphasizing that the proper plain text interpretation of the safety valve did not require a hyper-literalist interpretation of “and,” but rather a context-sensitive interpretation. Judge Willet dissented, explaining that Congress used the word “and,” and if Congress wished to withhold safety valve relief from defendants who failed one of the three subsections, it should have used “or.” The Supreme Court has granted cert on this issue in Pulsifer v. United States, No. 22-340, which arises from the Eighth Circuit adopting the same interpretation of this safety valve provision as the Fifth Circuit. United States v. Thompson, 54 F.4th 849 (Dec. 5, 2022) (per curiam). Thompson pleaded guilty to possessing a firearm after a felony conviction and was sentenced under the Armed Career Criminal Act based on prior Mississippi convictions for burglary. Thompson argued that the burglary convictions did not qualify as ACCA predicates because the elements of Mississippi burglary are broader than those of the generic offense. In particular, Thompson argued that Mississippi burglary can be committed by breaking into a “dwelling house”—which includes every building joined to, immediately connected with, or being part of the dwelling house—while generic burglary requires a “building or structure.” The Fifth Circuit affirmed, rejecting Thompson’s argument that the Mississippi definition of dwelling house was broader than ACCA’s building or structures.
(SELECTED) GUIDELINE ISSUES United States v. Melendez, 57 F.4th 505 (5th Cir. Jan. 11, 2023). Melendez pleaded guilty to conspiracy to possess with intent to distribute and conspiracy to distribute methamphetamine. The district court applied a two-level enhancement for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer under §3C1.2. With a passenger in a vehicle, Melendez threw several ounces of meth out of the car while 55
fleeing the police. The Fifth Circuit holds no plain error. Throwing several ounces of methamphetamine out of a car while fleeing law enforcement plausibly created a substantial risk of death or serious bodily injury. United States v. Appellant 1, 56 F.4th 385 (5th Cir. Nov. 14, 2022). Appellants were a couple that ran an operation distributing meth from Houston to New Orleans. After being arrested and charged with a litany of crimes, Appellants signed proffer agreements with the government agreeing to fully disclose criminal activity of which they had knowledge or in which they were involved. In return, the government agreed not to use any statements made during the proffer at sentencing or any other criminal action. The proffer, however, exempted crimes of violence. Later, but before sentencing, the government questioned Appellants about the death of an individual found in a Houston bayou. Appellants and the individual were friends, and Appellants had posted his bond. But the individual missed court appearances and Appellants feared losing their money, so they offered a New Orleans dealer meth in exchange for helping get the individual back to Texas. The dealer recruited another friend, Appellants gave that friend drugs to slip into the individual’s drink, the individual passed out, and after he was handed off to Appellants, he died on the way back to Texas. Appellants eventually pleaded guilty to conspiracy to possess and distribute meth, and at sentencing the district court found that the individual’s death was relevant conduct. Appellants first argued that use of the individual’s death at sentencing violated the proffer. The Fifth Circuit, applying contract principles, held that crimes of violence were wholly exempted from the proffer’s general scheme, so use of the individual’s death did not violate the proffer. The Court also held that the individual’s death was a crime of violence, noting that there was no indication that the parties intended to import the statutory term of art with its “categorial-approach baggage” into the proffer. Next, Appellants argued that the individual’s death was not relevant conduct. The Fifth Circuit, relying on a different rationale than the district court, held that the death was relevant conduct under §1B1.3(a)(2) because the death was part of Appellants drug-trafficking scheme. The Court noted that the drug conspiracy and death overlapped 56
in time, shared a common accomplice (the New Orleans dealer), and involved distributing drugs in exchange for payment (either money or kidnapping the victim). The Court rejected Appellants’ argument that the kidnapping could not be relevant conduct because the objective differed from their meth conspiracy, holding that differing objectives are not fatal to the finding of relevant conduct. United States v. Ferris, 52 F.4th 235 (5th Cir. Oct. 25, 2022). Ferris had valid prescriptions for fentanyl patches to address his longstanding medical issues. On separate occasions, he went to the pharmacy to fulfill the prescriptions and gave the impression that he was an FBI agent. One day he had an FBI lanyard, another day he brought a pharmacist an FBI lapel pin, and he occasionally mentioned that he was doing FBI work. The pharmacist had verified the prescriptions before filling them but eventually became suspicious, contacted the FBI, and found out Ferris is not an FBI officer. Ferris was charged with impersonating an FBI agent, in violation of 18 U.S.C. § 912. He went to trial, the district court adopted the Government’s proposed jury instructions over Ferris’s objection, and the jury found him guilty. The Fifth Circuit found the district court clearly erred by applying the cross-reference to §2D1.1 when it sentenced Ferris to 12 months’ imprisonment. Ferris had objected, arguing that the Government had not proven a drug-trafficking offense warranting the cross-reference. The Court agreed with Ferris. The record did not support a finding that Ferris was filling the prescriptions to later traffic the fentanyl patches. And the Court rejected the Government’s arguments that Ferris had attempted to cause the pharmacist to unlawfully distribute fentanyl patches to him. The pharmacist had only operated in his usual course by issuing authorized prescriptions, thereby not violating 21 U.S.C. § 841(a). See Ruan v. United States, 142 S. Ct. 2370 (2022). United States v. Ramirez, 37 F.4th 233 (5th Cir. June 14, 2022). The district court applied both the enhancement for substantial risk of serious bodily injury and the enhancement for reckless endangerment while fleeing. The 5C clarified both could only apply if based on separate conduct. Without the fleeing conduct (accounted for by 3C1.2), the conduct did not support the reckless endangerment enhancement 57
(2L1.1(b)(6)) – even though the car was swerving between lanes at night driving over 60mph with one person over capacity lying in a prone position. “Yes, it was nighttime, but the roads were dry, traffic was light, and Ramirez was driving under the posted speed limit. Further, unlike cases where we have affirmed an enhancement based on reckless driving, Ramirez was not speeding, off-roading, fleeing—at the relevant time—or the like. … Ramirez’ conduct was certainly unsafe, but that does not mean that he created a substantial risk of death or serious bodily injury. Finding otherwise was plain error.” United States v. Vargas, 35 F.4th 936 (5th Cir. May 31, 2022), reh’g en banc granted, opinion vacated, 45 F.4th 1083 (5th Cir. 2022). Over objection, the district court determined Vargas was a career offender based on prior conspiracy drug trafficking convictions. Vargas argued on appeal that conspiracy convictions are not §4B1.2 controlled substance offenses under the plain text of the guideline. There was no ambiguity in the text, so no deference was owed to the guideline commentary, which added inchoate offenses. The Court found precedent foreclosed this argument, because the Court had held in 1997 that the career-offender enhancement lawfully includes inchoate offenses. “If we were writing on a blank slate, we might well agree with Vargas’s argument that Kisor changed Stinson’s calculus regarding the deference owed to the Guidelines commentary.” But, because Kisor did not discuss the Guidelines or Stinson, “we cannot say here that Kisor unequivocally overruled our precedent[.]” Note: the Court granted the petition for rehearing en banc and there is a circuit split, so keep preserving the issue. To recap the Supreme Court deference decisions: In Stinson v. US, 508 U.S. 36 (1993), the Supreme Court applied Seminole Rock/Auer deference to the Sentencing guidelines, finding the commentary “is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of that guideline.” In Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the Supreme Court clarified that Seminole Rock/Auer deference does not apply “unless the regulation is genuinely ambiguous.” Courts must use 58
all the traditional tools of construction to determine whether there is a “genuine ambiguity.” United States v. Luna-Gonzalez, 34 F.4th 479 (5th Cir. May 18, 2022). The Fifth Circuit reversed the application of the guideline §2K2.1(a)(4)(B) enhancement for a firearm that accepts a large-capacity magazine. The guideline commentary defines a “semiautomatic firearm that is capable of accepting a large capacity magazine” as a “firearm that has the ability to fire many rounds without reloading because at the time of the offense (A) the firearm had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition; or (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm.” U.S.S.G. §2K2.1 comment. (n.2). Here, the Government provided no evidence that the firearm was capable of accepting the large-capacity magazine. The prosecutor’s unsworn assertion that the magazine found fit the firearm was insufficient. That the magazine was close to the firearm was also insufficient. “[C]loseness does not supplant compatibility; the magazine must actually fit.” Note: the Court remanded for resentencing but did not decide “whether the United States should get another bite at the sentencing apple,” e.g., a chance to support the sentencing enhancement on remand versus resentencing without the enhancement; Luna “requested a remand for resentencing—nothing more.” United States v. Cordova-Lopez, 34 F.4th 442 (5th Cir. May 18, 2022). Cordova pleaded guilty to illegal reentry. He argues the district court miscalculated his advisory Guidelines range by deferring to the Guidelines commentary—Application Note 3, which says a prior conviction can increase both offense level and criminal history—rather than applying the Guidelines themselves. The Court disagrees, finding that the same result is dictated by the Guidelines text. Because Application Note 3 is not in tension with the Guidelines, the Court does not address whether Kisor v. Wilkie, 139 S. Ct. 240 (2019), altered the level of deference owed to the commentary. United States v. Aderinoye, 33 F.4th 751 (5th Cir. May 11, 2022). The Fifth Circuit rejects Aderinoye’s challenges to his fraud sentence. For the substantial hardship enhancement, the Court agrees with other circuits 59
that it means a loss that “significantly impacts the victim’s resources.” The district court’s finding, that the $102k loss to a small business was significant, was not clearly erroneous. The victim impact statement established that it set the business back over six months. That was not “minor or inconsequential.” The loss “falls somewhere in the area between a minimal loss or hardship and a devastating loss in which we rely upon the judgment of the district courts.” (cleaned up). United States v. Alfaro, 30 F.4th 514 (5th Cir. Apr. 7, 2022). Alfaro appealed his 121-month sentence for fraud offenses. The Government had conceded that the loss amount should have been reduced by approximately $500,000 because of money paid to the investors through royalties and distributed to investors through bankruptcy proceedings. Without ruling on the concession, the district court adopted the PSR and found the higher loss amount correct. The Fifth Circuit held this was error because the concession was supported by specific evidence. The error was harmful because the correct loss amount would have resulted in a lower range the district court did not consider. The Court vacated the sentence and the restitution and remanded for resentencing. United States v. Castelo-Palma, 30 F.4th 284 (5th Cir. Apr. 4, 2022). The Fifth Circuit reversed the district court for applying the reckless endangerment enhancement. Castelo had objected to the 2L1.1(b)(6) enhancement, arguing that carrying 9 passengers in an Explorer (which had a rated capacity for 7) did not create a substantial risk of death or bodily injury. The Court found the record lacked (read: the Government failed to present) any evidence about the configuration of the seats or passengers, or whether the tailgate could be an exit—so it was not clear the passengers could not exit quickly. That Castelo was driving at night could be considered but was not enough to per se create a substantial risk of serious injury to another person. The Court found “dearth of facts beyond the number of people being transported” does not support the district court’s finding that Castelo intentionally or recklessly created a substantial risk of death or serious bodily injury to any other person. The sentence of 24 months (that was within the incorrectly-calculated Guidelines) was vacated, and the case remanded.
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United States v. Singletary, 29 F.4th 313 (5th Cir. Mar. 28, 2022). Singletary was convicted of conspiring to possess firearms in furtherance of drug trafficking, 18 U.S.C. 924(o). He made straw purchases of guns for drug dealers in exchange for cash, gifts, and marijuana. On appeal, he challenges enhancements under USSG 2K2.1(b)(5) and (b)(6)(B). The Fifth Circuit affirms. The Court finds that the (b)(5) enhancement—for trafficking 2 or more guns to someone who cannot lawfully possess them or who intends to use them unlawfully—applies because Singletary admitted buying guns for others to aid their drug trafficking business. The Court rejected the argument that this wrongly enhanced Singletary for the same offense he was convicted of. The Court distinguishes between the offense of conviction (conspiring to possess guns to help drug dealers) and the enhancement (straw purchases used to aid the drug trafficking activity of the distributors). The Court finds that the (b)(6)(B) enhancement—for trafficking with the knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense—applies because the guns would be used to protect or aid in the drug trafficking activity of the distributors. The Court rejects the unpreserved argument that applying both enhancements was incorrect double counting. The Court distinguishes between the (b)(6)(B) enhancement being based on the offense of facilitating a drug distribution conspiracy and the (b)(5) enhancement being based on the offense of trafficking guns to persons who could not lawfully possess them. Impermissible double-counting depends on the same offense, not the same conduct. United States v. McGavitt, 28 F.4th 571 (5th Cir. Mar. 11, 2022). The defendant pleaded guilty to Count 1: coercion and enticement of a minor for the purpose of rape; Count 2: sexual exploitation of children by coercion and enticement for the production of child pornography; and Count 3: possession of CP. The defendant challenged his sentence on appeal. The Fifth Circuit held that the district court did not err by applying the 4-level enhancement for sadistic or masochistic conduct based on the 12 or 13 year old’s use of a plastic object to self-penetrate because the objective observer would perceive the conduct as causing the minor 61
victim physical or emotional pain. But there is not a per se rule that the enhancement is applicable in all self-penetration cases. The Fifth Circuit held that the district court did not commit plain error by applying a two-level enhancement, §2G2.1(b)(3), for distribution of CP. The defendant argued that his coercing the minor to produce CP and send it to him through Facebook was not distribution because the guideline commentary states that distribution “does not include the mere solicitation of such material by the defendant.” U.S.S.G. §2G2.1(b)(3), cmt. n.1. The Court acknowledged that “there is arguably some conflict” between §2G2.1’s application notes 1 and 3. Because the Court had not previously considered this specific issue, however, any error could not be plain. The Fifth Circuit held that the district court did not plainly err by applying the two-level enhancement for the offense involving the commission of a sex act or sexual conduct. The defendant claimed that the enhancement did not apply because his sexual intercourse with the minor did not take place for, during, or in preparation for the production of CP. See §1B1.3(a)(1)(A). The Court noted that the sexual exploitation charge alleged that the defendant sexually exploited the minor for the purpose of producing CP over a period of time and that the sexual intercourse took place during that time frame. Also, after the encounter, the defendant asked the minor to produce and send him more pornographic images. The Fifth Circuit held that the district court did not plainly err in applying the grouping rules. Even assuming the court erred by either misapplying the grouping rules or simply failing to show its work, the defendant cannot show that it affected his substantial rights because his total offense level would not be reduced. United States v. Blanco, 27 F.4th 375 (5th Cir. Mar. 8, 2022). The Fifth Circuit vacates Blanco’s assault sentence and remands because the district court plainly erred assessing 3 criminal history points for a stale 2002 conviction. In 2002, Blanco had received a 4-year prison sentence, but 2 years were suspended to home confinement and 2 years were probated. His probation was revoked, but he received only a 1-year prison 62
term. Because he had not received a sentence of 13 months or more, and the sentence was imposed more than 10 years before the instant assault, the conviction did not score. The Government conceded the error was clear but argued it did not affect Blanco’s substantial rights, arguing the district court’s sentencing decision was based on factors independent of the Guidelines. The Fifth Circuit disagreed. The district court had granted a downward variance, but the “Guidelines were still the starting point and basis for his sentence.” The Court exercised its discretion to vacate his sentence and remand for resentencing. Blanco also argued the district court erred by assessing a three-level bodily injury enhancement under guideline §2A2.2(b)(3)(A), but the Fifth Circuit affirmed that enhancement. The Government pointed to the following evidence that the assault caused painful and obvious injuries: the victim’s testimony about the pain, the forensic evidence of her hair with the root attached to the bath towel after the assault, and the agents testimony about bruising on parts of the victim’s body. In light of this evidence, the district court’s finding was plausible. United States v. Anguiano, 27 F.4th 1070 (5th Cir. Mar. 8, 2022). The Fifth Circuit held that the district court did not err by applying a crossreference to the drug guideline. Anguiano was charged with and pleaded guilty to attempting to obtain or possess methamphetamine in prison, in violation of 18 U.S.C. § 1791(a)(2) and (b)(1). At sentencing, the district court applied the cross-reference in guideline §2P1.2 to the drug guideline, §2D1.1, based on Anguiano’s intent to distribute the methamphetamine. The Court stated that there was sufficient evidence of the intent to distribute including the quantity and purity of the methamphetamine. United States v. Lujan, 25 F.4th 324 (5th Cir. Feb. 4, 2022). Lujan pleaded guilty to conspiring to distribute and possess with intent to distribute 50 grams or more of meth. At sentencing, the district court (Judge Counts) converted $10,694 seized during the course of the investigation into meth. For the cash conversion, the court used the “wholesale” rate (price Lujan could purchase more meth to sell) instead of the “retail” rate (price Lujan’s boyfriend was selling the meth for). The 5C held the district court erred because “it implausibly found that Lujan 63
would have used the entirety of the $10,694 to purchase more methamphetamine.” The 5C rejected the Government’s argument that the district court could have made this finding based on the PSR because Lujan did not submit rebuttal evidence to show the cash would have gone to other uses. “This argument lacks merit because it is the Government's burden, in the first instance, to prove the total drug quantity attributable to Lujan.” The only evidence in the PSR was a statement that “$10,694 can purchase 1,600 grams of actual methamphetamine.” The 5C explained that, “[w]ithout evidence showing that Lujan and Alvarado would purchase 1,600 grams of methamphetamine, this is the sort of bald conclusionary statement that lacks a patina of reliability despite its inclusion in the PSR” (cleaned up). Sentence vacated and case remanded. United States v. Swenson, 25 F.4th 309 (5th Cir. Feb. 2, 2022). Swenson was charged with a scheme to defraud adoptive parents through her adoption agency. The scheme involved double matching—matching two prospective families, the Neidrich and the Cuschieries families, with one birth mother and receiving payments from both families. There were four counts but Swenson was convicted of only one mail fraud count. The Fifth Circuit held there was no error in applying the vulnerable victim adjustment because the district court found these families, who had invested “extraordinary hope” into the adoption process and who were “desperate” to bring a child into their family, had an “unusual vulnerability” present in only some victims of that type of crime. SUBSTANTIVE REASONABLENESS United States v. Zarco-Beiza, 24 F.4th 477 (Jan. 24, 2022). ZarcoBeiza was convicted of illegal reentry, 8 U.S.C. § 1326, and the guideline range was 10 to 16 months’ imprisonment. The district court imposed a 65-month sentence. On appeal, Zarco-Beiza argued the sentence was substantively unreasonable because the court improperly relied on a bare arrest record. The Fifth Circuit holds that the argument was reviewed for plain error because Zarco-Beiza had not properly objected in the district court. His 64
general objection to substantive reasonableness was not sufficient. And, although his written objection to the PSR stated that the arrests should not be grounds for an upward variance, the basis was the presumption of innocence and not their unreliability. The Fifth Circuit holds that the district court erred because it relied on the bare arrest record in imposing the upward variance. The pending DWI charge in the PSR was a bare arrest record. It referenced the mere fact of an arrest—the date, charge, jurisdiction, and disposition—without any corresponding facts about the defendant’s conduct. A “pending charge” like a mere arrest does not provide sufficient indicia of reliability. However, it is not plain error because Zarco-Beiza cannot show there was a reasonable probability, he would have received a lesser sentence but for the court’s error. The court chose the 65-month sentence because that was the sentence on his last 1326 conviction. Appellate Note: The government argued that the defendant should have raised the issue as procedural error not substantive unreasonableness. The Fifth Circuit disagreed because it has never required a bare arrest record claim to be presented as procedural error. United States v. Lara, 23 F.4th 459 (5th Cir. Jan. 11, 2022). Two sisters were convicted by a Del Rio jury of attempting to import 38kg of meth into the US, hidden in the trucks tires. They were each sentenced to a below-Guidelines sentences of 288 months’ imprisonment. The Fifth Circuit affirms their convictions and sentences after considering numerous issues on appeal: 1. Use-of-a-minor enhancement. The Fifth Circuit affirmed the use-of-a-minor enhancement because the trafficking activity was planned in advance and the record supported the finding that the minors’ presence was diversionary. 2. Substantive reasonableness of below-Guidelines sentence. The Fifth Circuit held that the argument that the meth guideline should not be afforded a presumption of reasonableness because it is not empirically-based was foreclosed by illegal-reentry cases United States v. Mondragon-Santiago, 564 F.3d 357, 366 (5th Cir. 65
2009), and United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009). SUPERVISED RELEASE/PROBATION United States v. Villanueva-Cardenas, 59 F.4th 759 (5th Cir. Feb. 13, 2023). Villanueva-Cardenas was convicted of § 1326 and sentenced to a term of imprisonment and a 3-year term of supervised release. The district court imposed as a condition of supervised release that he be surrendered to immigration officials upon his release from custody, and, if immigration officials decline to take custody, that he “self-deport” and return to Mexico. The Fifth Circuit held that a district court lacks the authority under 18 U.S.C. § 3583(d) to order a defendant to self-deport as a condition of supervised release, citing its earlier decision in Untied States v. Badillo, 36 F.4th 660 (5th Cir. 2022). Judge Duncan (with Judge Ho) concurs in the judgment, stating that Badillo controls but argues that Badillo’s holding is inconsistent with the plain text of 18 U.S.C. § 3583(d) which allows the court to impose “any” condition it deems “appropriate” as long as it makes the necessary findings. He argues that the panel in Badillo erroneously extended United States v. Quaye, 57 F.3d 447 (5th Cir. 1995) (holding that district courts could only order a person be surrendered to immigration officials but could not actually order they be deported as deportation is within the executive’s prerogative). He fails “to see any error, much less plain error, in the self-deportation condition. Badillo spent three years in prison for illegally reentering the United States. It is directly relevant to the § 3553(a) factors to require him—should immigration officials fail to do their jobs—to leave the country on his own steam.” United States v. Prado, 53 F.4th 316 (5th Cir. Nov. 11, 2022). Prado argued that two discretionary conditions of supervised release that were not pronounced at sentencing should be stricken from his judgment. The judgment contained a condition that Prado take all mental health medications prescribed by his treating physician. While the district court generally discussed Prado’s need to take medication and pronounced the requirement that he undergo mental health treatment, the Fifth Circuit holds that “the general discussion about his need for medication was 66
insufficient to put him on notice that the court was imposing a requirement to take such medication.” The Court vacates that condition as well as the condition to refrain from excessive use of alcohol was not orally pronounced, which the Government conceded was not pronounced. United States v. Martinez, 47 F.4th 364 (5th Cir. Aug. 26, 2022). Martinez challenged 15 discretionary conditions of supervised release. The Fifth Circuit holds that the district court did not pronounce those conditions at sentencing when it said Martinez had to “comply with the standard conditions that will be set forth in the judgment of conviction and sentence.” The Court says it was unclear what the district court meant by “the standard conditions.” The conditions in the judgment overlap with the standard conditions listed on the Northern District of Texas’s website, but they do not track the conditions verbatim. The Court vacates the judgment and remands for amendment of the written judgment by removing the unpronounced discretionary conditions. [Note: It is not completely clear how this Martinez case squares with United States v. Martinez, 15 F.4th 1179 (5th Cir. Oct. 20, 2021), where the Court said Judge Counts had pronounced conditions by stating it was imposing “the standard and mandatory conditions of supervision[.]” In the WDTX Martinez, the PSR recommended imposition of the standard conditions, the conditions imposed in the judgment tracked the WDTX standing order conditions, and the appellate attorney filed an Anders saying Martinez had a chance to object or ask for clarification.] United States v. Pinon-Saldana, 44 F.4th 264 (5th Cir. Aug. 9, 2022). The majority holds that United States v. Mejia-Banegas controlled the issue raised—whether imposition of the risk-notification condition was an impermissible delegation of judicial authority. Judge Graves dissents. He argues that before the Court can address the specific condition, it must address whether there was a discrepancy between the oral and written judgment. He finds there is. Judge Counts orally ordered that the mandatory and standard conditions of supervised release be imposed. But the presentence report did not recommend those conditions. Consequently, neither the district court nor the any written document identified the mandatory and standard conditions as those contained in the Western District of Texas’s standing order. 67
United States v. Badillo, 36 F.4th 660 (5th Cir. June 10, 2022). Because the district court lacked authority to order Badillo to self-deport as a condition of supervised release, the Fifth Circuit grants the Government’s motion to remand the case and withdraw its brief. The Government had initially filed a brief but had not cited the controlling authority on this issue—United States v. Quaye, 57 F.3d 447 (5th Cir. 1995). Quaye says the most a district court can do is order a defendant subject to deportation to be surrendered to immigration officials. United States v. Mejia-Banegas, 32 F.4th 450 (5th Cir. Apr. 26, 2022). The Fifth Circuit holds that the same risk-notification condition of supervised release that was addressed in US v. Henderson, 29 F.4th 273 (5th Cir. 2022), which is from the Western District of Texas standing order on supervised release conditions, does not impermissibly delegate judicial authority to the probation officer. The Court interprets the condition as only allowing the probation officer to direct when, where, and to whom the defendant must give notice. The Court appears frustrated that the same issue was raised in so many appeals on plainerror review, which it believes was a deliberate bypass of the district courts. Judge King’s concurrence notes that it was unnecessary to reach the merits because Henderson already held that any error was not plain. She would have waited for a better vehicle to address the issue. United States v. Henderson, 29 F.4th 273 (5th Cir. Mar. 24, 2022). The Fifth Circuit holds that the district court did not plainly err by imposing a supervised release condition that allowed a probation officer to decide whether Henderson posed a risk to an individual and then require him to notify said person of the risk. This is “Standard Condition 12” in the WDTX standing order on mandatory and standard supervised release conditions. The Court did not address whether such a condition was an impermissible delegation of authority to a probation officer. The Court merely held any error could not be plain because the Court had not yet addressed the merits. [Note: The Court still hasn’t addressed the merits of this issue, so object to imposition of WDTX Standard Condition 12 as an improper delegation of judicial authority!]
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United States v. Aguilar-Cerda, 27 F.4th 1093 (5th Cir. Mar. 10, 2022). Aguilar was sentenced to 45 months’ imprisonment and 3 years’ supervised release. The district court imposed a special condition of supervised release that he participate in a substance abuse treatment program, “in or outpatient, approved by the U.S. Probation office.” Aguilar did not object to the condition, and appointed counsel on appeal submitted an Anders brief. But the 5C asked for briefing on whether this special condition impermissibly delegated authority to the probation officer. The Fifth Circuit has held a similar condition to be impermissible when the sentence is 10 months but a permissible delegation when the sentence is 10 years. The Court says the 45-month sentence is not short enough for any error to be clear or obvious. Judge Higginbotham, joined by Chief Judge Owen, concurred to highlight that, even if review was not for plain error, they would find no improper delegation. “[E]ven though the probation officer may make the initial determination of whether judicially ordered treatment will occur in an inpatient or outpatient setting, the practical reality is that the district court maintains the ultimate authority over Aguilar-Cerda's conditions of supervised release,” and only the court can actually revoke supervised release. United States v. Hammond, 24 F.4th 1011 (5th Cir. Feb. 4, 2022). The Fifth Circuit held that a district court is not required to give the defendant notice that it might upwardly depart from the revocation guideline range. Chapter 7 policy statements are advisory and diverging from them does not constitute a departure. The defendant was not able to show plain error as the district court was not required to put him on notice. Plus, the defendant got notice in the government’s sentencing memorandum and the probation officer’s violation worksheet. United States v. Bautista-Gunter, 22 F.4th 506 (5th Cir. Jan. 7, 2022). Bautista was convicted of felon-in-possession and carrying a weapon on an aircraft. After serving his sentence of imprisonment, Bautista filed a motion requesting that a condition of his supervised release be modified. That condition prohibited employment as a law enforcement officer of any kind. (Bautista had a colorful history posing as a law enforcement officer.) Bautista claimed he secured employment as an unarmed security 69
guard, but his probation officer told him that employment would violate the law-enforcement condition. Bautista argued otherwise and sought court intervention and a Rule 32.1(c) hearing. The district court (Judge Ezra) held that “a commonsense interpretation of the law-enforcement condition” prohibited the security guard employment and that there was no need for a hearing. The 5C agrees both with the interpretation of the condition and that a hearing was unnecessary. When a district court “merely confirms what was already required by law with regard to a supervised release condition, the failure to hold a hearing results in no prejudice to the defendant and no error.” RESTITUTION/FORFEITURE United States v. Hagen, 60 F.4th 932 (5th Cir. Feb. 23, 2023). Hagen appealed his conviction after a jury trial for conspiring to defraud the U.S. and to pay and receive health care kickbacks and conspiring to commit money laundering. The Fifth Circuit affirms his conviction and the Guidelines calculation. For restitution, the Court rejects the categorical approach to determine whether a Title 18 offense is “against property” for purposes of the Mandatory Victim Restitution Act. Instead, courts must look to the factual circumstances of the crime of conviction determine whether the crime is an “offense against property” requiring mandatory restitution. United States v. Swenson, 25 F.4th 309 (5th Cir. Feb. 2, 2022). Swenson was charged with a scheme to defraud adoptive parents through her adoption agency. The scheme involved double matching— matching two prospective families, the Neidrich and the Cuschieries families, with one birth mother and receiving payments from both families. There were four counts but Swenson was convicted of only one mail fraud count involving a check for $1800. Swenson argued that restitution should not include $13,400 for adoption fees from the Cuschieries that were the basis of count three, for which she was acquitted. Swenson did not object to the restitution in the district court. There is a conflict in the Fifth Circuit’s cases on whether de novo or plain error would apply. The Fifth Circuit held that because 70
the oldest case is de novo review, under the rule of orderliness, that standard applied. The Fifth Circuit held that the restitution amount was correct because the Cuschieries were identifiable victims of Swenson’s scheme. The $13,400 was paid by the Cuschieries for a prior adoption that fell through but that the amount was rolled over into this adoption. Although the district court acquitted Swenson on count three, that was because it was unclear what her intent was at the time the Cuschieries made their payment. But restitution, the Court said, asks a different question: who was harmed by the criminal conduct. And restitution invokes obvious connotations of a proximate cause standard of causation. VIII. REVOCATION United States v. Greer, 59 F.4th 158 (5th Cir. Feb. 1, 2023). Greer was convicted in 2015 of possessing child pornography and sentenced to an 86-month term of imprisonment and six years of supervised release. In 2019, Greer violated conditions of his supervised release, and the district court sentenced him to fifteen more months of imprisonment to be followed by five years of supervised release. Greer violated his supervised release a second time, and the district court sentenced him to eighteen months imprisonment. The Fifth Circuit held the district court committed a reversible procedural error by sentencing Greer to two consecutive nine-month terms of imprisonment for violating two conditions of his supervised release. § 3583(e)(3) limits the district court to imposing one term of imprisonment upon revoking one term of supervised release. Where the revocation is based on multiple violations of the conditions of supervised release, the term of imprisonment is calculated using the violation having the most serious grade. The Court also found Greer’s challenges to his preliminary revocation hearing and pre-revocation detention to be moot. Because the preliminary hearing merely determines whether a final hearing will be held, the disposition of the final hearing generally renders challenges to the preliminary hearing moot, except where a defendant alleges that an error in the preliminary hearing affected the disposition of the final 71
hearing or subsequent sentencing in some way. Here, Greer does not allege the errors in his preliminary hearing infected his final hearing. United States v. Sosebee, 59 F.4th 151 (5th Cir. Feb. 1, 2023). Sosebee was convicted of being a felon in possession of ammunition and sentenced pursuant to the Armed Career Criminal Act because he had been convicted in Texas state court of Robbery and, on two separate occasions, Burglary of Habitation. While on supervised release, he was convicted again of being a felon in possession of ammunition and was sentenced pursuant to the ACCA, as well as sentenced to concurrent time for the violation of supervised release, which was to run concurrently to his second conviction. Sosebee challenged the ACAA sentencing enhancements in both cases. The appeal of his first conviction was dismissed as moot because Sosebee had completed his 24-month term of imprisonment on his revocation sentence, so it was impossible for the Court to grant any effectual relief. As to the challenge to the ACAA enhancement for his second conviction, the Fifth Circuit affirmed his ACAA-enhanced sentence. The Court, relying on its decision in United States v. Garrett, held that to determine whether a conviction is a valid ACAA predicate conviction, they must “look at the statute itself and examine the elements of that crime” and “apply a categorical analysis to determine whether the statute itself necessarily and invariably requires the use of threatened use of physical force.” The Texas robbery statute is “divisible,” creating some violent and some non-violent crimes. Specifically, the robbery-by-injury was not a violent crime for ACAA purposes, but the robbery-by-threat is. The Court looked at the indictment and the judicial confession to determine under which robbery offense Sosebee was convicted. Because his conviction recited the statutory language pertaining to robbery-by-threat, and made no mention of robbery-by-injury, the Court was bound by Garrett and affirmed Sosebee’s ACAA-enhanced sentence.
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IX.
APPEALS
United States v. Alfred, 60 F.4th 979 (5th Cir. Feb. 27, 2023). Alfred pleaded guilty to a child pornography offense pursuant to a plea agreement with an appeal waiver. On appeal, he challenged the restitution order, citing United States v. Leal, 933 F.3d 426 (5th Cir. 2019), where the Court held that the appeal waiver did not apply to a Paroline-based challenge to a restitution order because such an appeal falls within the statutory-maximum exception. The Fifth Circuit holds that the appeal waiver bars Alfred’s challenge. The Court explains that, in Leal, “we declined to enforce the appeal waivers because the district courts failed to conduct the requisite analysis[.]” In Alfred’s case, the district court engaged in that analysis, and Alfred disagreed with the outcome. “Such a challenge is barred by his appeal waiver.” United States v. Meredith, 52 F.4th 984 (5th Cir. Nov. 9, 2022). The Fifth Circuit dismisses Meredith’s appeal challenging a sentencing enhancement and restitution award. The Court holds that Meredith waived the right to appeal in his plea agreement, wherein he waived his right to appeal “on any ground.” Meredith had argued that the restitution order exceeded the statutory maximum, and that he could appeal any sentence that exceeds “the maximum sentence authorized by statute.” But the Court holds that the relevant statutory maximum in Meredith’s case is an unspecified amount of restitution, because he agreed to pay the restitution determined by the district court. See 18 U.S.C. § 3663(a)(3) (allowing the court to order restitution in any criminal case “to the extent agreed to by the parties in a plea agreement”). United States v. Hernandez, 48 F.4th 367 (5th Cir. Sept. 1, 2022). Hernandez’s transporting sentence had been vacated on plain-error review because the record did not support the §2L1.1(b)(6) reckless endangerment enhancement. On remand, over Hernandez’s objection, the Government introduced additional evidence to support the enhancement, and the district court found the enhancement applied and gave Hernandez the same sentence it had the first time. On appeal, Hernandez argued that the district court exceeded the mandate by hearing new evidence and that, even with the new evidence, the enhancement is unsupported. The Fifth Circuit disagreed. It noted that 73
the remand did not specifically limit the scope of remand and that, “in the interest of truth and fair sentencing, the district court may consider any corrections and additions relevant to the issues addressed” on appeal. United States v. Carales-Villalta, 617 F.3d 342, 344 (5th Cir. 2010). With the district court’s express finding (on remand) that the noncitizens could not exit the vehicle quickly, the enhancement was warranted. VIII. POST-CONVICTION United States v. McMaryion, 64 F.4th 257 (5th Cir. Mar. 28, 2023). The Fifth Circuit holds that three of McMaryion’s four reasons for a sentence reduction under 18 U.S.C. § 3582(c)(1) are not cognizable bases. First, citing Escajeda, McMaryion’s claims that his counsel were ineffective and that the Government breached his plea agreement are not cognizable under § 3582(c)(1) because they are cognizable under 28 U.S.C. § 2255. Second, the Court rejects McMaryion’s argument that subsequent changes to the statute he was convicted under were a basis for the reduction. Third, the Court also rejects McMaryion’s reliance on subsequent changes to the Guidelines. The fourth argument, regarding his health conditions and COVID-19 is cognizable but insufficient to be extraordinary and compelling. [Note: much of this analysis could be called into question if the Commission amends policy statement §1B1.13 as is anticipated.] The Court also finds that the district court’s terse order was not procedural error. Judge Higginbotham disagrees, and dissents explaining that he would not reach the merits of McMaryion’s motion because the district court failed to articulate its reasons. United States v. Escajeda, 58 F.4th 184 (5th Cir. Jan. 17, 2023). Shortly after the Fifth Circuit decided Escajeda’s direct appeal, Escajeda filed a compassionate-release motion under 18 U.S.C. § 3582(c)(1) challenging the legality and duration of his sentence. He argued that his sentence exceeded the statutory maximum and that he received ineffective assistance of counsel—“quintessential arguments for challenging” a prisoner’s confinement under 18 U.S.C. § 2255. The 74
district court (Judge Counts) denied the motion, and Escajeda appealed. The Fifth Circuit affirmed, holding that Escajeda’s claims were not cognizable under § 3582(c)(1) and must be pressed through a direct appeal or § 2255. The Court also held that the district court’s perfunctory denial was sufficient, even though the order said the court considered “applicable policy statements issued by the Sentencing Commission,” of which there are none. Even if the court considered inapplicable policy statements, it would be harmless error. [Note: Keep in mind that the Fifth Circuit has issued more favorable compassionate release decisions that can be hard to square with Escajeda. In United States v. Shkambi, the Court held that a district court is not bound by U.S.S.G. § 1B1.13 when considering compassionate release motions brought by prisoners, because the existing 1B1.13 applies only to motions filed by BOP, not by prisoners. 993 F.3d 388 (5th Cir. 2021). The Court also allows the district court to consider nonretroactive changes in sentencing law as an extraordinary and compelling reason for a sentence reduction. United States v. Cooper, 996 F.3d 283 (5th Cir. 2021). The Escajeda court did not address Cooper and explain how the two decisions are consistent. But Escajeda could be limited to quintessential 2255 arguments (e.g., not arguments based on non-retroactive changes in sentencing law) and possibly to compassionate-release motions filed within one year of the case becoming final, when filing a § 2255 is still possible.] United States v. Handlon, 53 F.4th 348 (5th Cir. Nov. 16, 2022). The Fifth Circuit held that the district court did not sufficiently explain its reasons for denying a third compassionate-release motion when the court simply said the denial was “for the same reasons” as the denial of the second motion. The third motion presented new factual circumstances, and the Government did not respond to it. Thus, the court (Judge Counts) did not have any reasoning to incorporate by reference in its order. Recognizing the motion my have little chance of success, the Fifth Circuit said, “judges have an obligation to say enough that the public can be confident that cases are decided in a reasoned way.” Hammoud v. Ma’at, 49 F.4th 874 (5th Cir. Aug. 31, 2022) (en banc). Hammoud was convicted of donating $3,500 to Hizballah in 1999, before 75
the statute, 18 U.S.C. § 2339B, was amended in 2004 to specify that offense required the individual to know the organization is a designated terrorist organization or has engaged or engages in terrorist activity or terrorism. The Government had not proven that Hammoud had such knowledge. In 2014, Hammoud filed a § 2255 petition that the district court denied, and the Fourth Circuit affirmed the denial. In 2018, Hammoud filed a § 2241 in the Western District of Texas, where he was incarcerated. The Fifth Circuit en banc affirmed the district court’s denial of Hammoud’s 28 U.S.C. § 2241 habeas corpus petition for lack of jurisdiction, because he could have raised all his claims in a § 2255 motion. He had raised some claims in the § 2255, but he does not get a second bite at the apple under § 2241. The majority declined to reexamine Reyes-Requena v. United States, which held the “saving clause of § 2255” applies to a claim (i) based on a retroactive Supreme Court decision that establishes the prisoner was convicted of a nonexistent offense and (ii) was foreclosed by circuit law when it should have been raised at trial, on appeal, or in a first § 2255 motion. Hammoud asked the Court to expand Reyes-Requena v. United States to include claims based on statutory amendments. But the majority declines because Hammoud’s claim would still fail because he could have filed a § 2255 motion based on the statutory amendment. Neither of the parties asked the Court to overrule Reyes-Requena, and this is not the appropriate case to do so. Judge Willett concurs, opining that § 2255(e) is not a “saving clause”; it is an “authorization clause.” As an authorization clause, a prisoner would have to surmount every procedural hurdle of § 2255 before a court could consider whether a § 2255 motion would be inadequate or ineffective to test the legality of his detention. Hammoud cannot do so because he is well past the one-year statute of limitations, and he already filed a § 2255. Judge Oldham dissents (joined by Judges Jones, Duncan, and Engelhardt). Reyes-Requena should be overturned because it contravenes the plain text of § 2255. Judge Ho dissents separately, respecting the majorities decision to not reach Reyes-Requena but arguing the Court should have overturned Reyes-Requena because it would have been more 76
than advisory opinion—Hammoud’s petition would have been dismissed with prejudice rather than without. [Note: The Supreme Court will address these issues in Jones v. Hendrix, 8 F.4th 683 (8th Cir. 2021), cert. granted, 142 S. Ct. 2706 (2022). There, the question presented is: Whether federal inmates who did not—because established circuit precedent stood firmly against them—challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.” Argument will be heard on November 1, 2022.] Harris v. Clay County, Miss., 47 F.4th 271 (5th Cir. Aug. 24, 2022). Harris was unlawfully detained for six years after being found incompetent to stand trial and after his civil commitment proceeding was dismissed. The district court found that the sheriff and deputy did not have qualified immunity from the claims of unlawful detention, and it denied the county’s motion for summary judgment, allowing the claims of unlawful detention and forced medication to proceed against the county. The defendants filed an interlocutory appeal. The Fifth Circuit held that it did not have jurisdiction over the county’s appeal because municipalities do not enjoy immunity. It acknowledged other circuits sometimes exercise pendent party jurisdiction over orders involving municipalities when individuals with qualified immunity also appeal, but the Fifth Circuit does not. The Court also held that the sheriff and deputy’s actions violated Harris’s due process rights, and those rights were clearly established. It rejected the “jailers’ just-following-orders” defense, noting it had rejected such a defense for much briefer detentions. It also said the factfinder could infer the jailers “were covering something up” because they signed a declaration that he was not in the jail (one with roughly 100 inmates) a few days after he was released. Instead of being released, Harris was jailed unlawfully for six years, violating the clear rule that “[a]n incompetent defendant who has no reasonable expectation of restored competency must be civilly committed or released.”
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United States v. Valas, 40 F.4th 253 (5th Cir. July 8, 2022). Valas’s conviction of engaging in a commercial sex act with a minor, 18 U.S.C. § 1591, out of San Antonio was affirmed by the Fifth Circuit. Within a year, he filed a motion under 28 U.S.C. § 2255 arguing that the prosecution had unconstitutionally suppressed a statement that the minor, TJ, had given the FBI. The Government admitted it had “inadvertently” failed to disclose the statement. The Court calls this Government’s justification for its failure to produce the 302 “troubling.” Noting that “this is not the first time something like this has happened” (citing a 2009 El Paso case), the Court “admonish[ed] the Government to endeavor to make it the last.” But Valas’s Brady claim failed because he could not show the evidence was favorable to Valas and material to the outcome of trial, even though Valas was deprived of cross-examining both TJ and the agent who produced the 302 about it. Valas also argued that his direct-appeal counsel was ineffective by not raising the district court’s failure to give a modified unanimity instruction, trial counsel was ineffective by not adequately crossexamining TJ, and that the prosecutor impermissibly vouched for TJ’s credibility. The Court was not swayed. It found that any instructional error was not preserved, and that Valas did not show it was “plainly stronger” than the other arguments raised on appeal. It found trial counsel did not act unreasonably by refraining to cross-examine TJ on certain matters (strategic decision). And the prosecutor’s statements, in context, did not improperly vouch for TJ’s honesty. United States v. Kelley, 40 F.4th 250 (5th Cir. July 8, 2022). As matter of first impression, Rehaif v. United States, 139 S. Ct. 2191 (2019), applies retroactively to initial 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence. Kelley had been tried and convicted for possessing a firearm as a felon before the Supreme Court decided Rehaif. The jury instructions did not specify that the jury must find that Kelley knew he was a felon when he possessed the firearm. The Fifth Circuit agreed with the parties that Rehaif supplied a new rule of law that applies retroactively to initial § 2255 petitions. The Court remands for the district court to address procedural default or the merits of Kelley’s claim.
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United States v. Caldwell, 38 F.4th 1161 (5th Cir. July 6, 2022). Plea waivers preclude any argument on new case law. Grzegorczyk v. United States, 142 S. Ct. 2580, 2022 WL 2347941 (2022). United States v. Vargas-Soto, 35 F.4th 979 (5th Cir. June 2, 2022). Vargas-Soto lost his Dimaya-based successive 28 U.S.C. § 2255 petition because his defense attorney in 2011 did not object to being sentenced to 180 months under 1326(b)(2) for an aggravated felony crime of violence based on the residual clause—a clause that was widely thought to be constitutional until Johnson found a similar clause in the ACCA statute unconstitutional in 2015. Procedural default (not raising the issue on direct review) can only be excused for a successive § 2255 petition for two reasons: (1) cause and prejudice, or (2) actual innocence. Vargas-Soto argued he met the cause exception because the Supreme Court held “that where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause.” Reed v. Ross, 468 U.S. 1 (1984). But the 5C explains later Supreme Court decisions “have substantially limited that holding.” The Fifth Circuit says that “a prisoner cannot invoke ‘novelty’ as cause for a default where he was legally able to make the putatively novel argument.” Even though the Supreme Court had not yet decided Johnson or Dimaya, the Supreme Court had recognized that criminal statutes are subject to vagueness challenges since at least 1954. And other defendants were raising such claims. Plus, Justice Scalia had articulated the vagueness argument in his James and Sykes dissents in 2007 and 2011. Vargas-Soto also argued he met the actual innocence exception. But “actual innocence” means factual innocence, and Vargas-Soto’s argument that his prior conviction does not qualify for the sentencing enhancement “is exclusively legal.” Regarding timeliness, the Fifth Circuit holds that Dimaya did not trigger a new rule for the one-year limitations period for a second or successive habeas petition under 28 U.S.C. § 2255(f)(3). Luckily, Vargas-Soto had filed a request for authorization to file a § 2255 within one year of Johnson. The Court rejected that request, thinking that Johnson and 79
Welch (which made Johnson retroactive) did not help Vargas-Soto’s claim under § 1326(b). “But Dimaya makes clear that our … denial was wrong.” So, Vargas-Soto timely filed, not based on the instant request for authorization filed after Dimaya, but based on the one filed within a year of Johnson. This was a split panel opinion (Judge Davis argued that Vargas-Soto’s vagueness argument was not “reasonably available” until Johnson overruled James), and a cert petition will likely follow. One day the Supreme Court will resolve what it means for an argument to be “reasonably available.” For now, Vargas-Soto is the law. United States v. Rodriguez, 27 F.4th 1097 (5th Cir. Mar. 10, 2022). The Fifth Circuit held that the district court did not abuse its discretion in denying Rodriguez’s motion for compassionate release. Rodriguez had argued that extraordinary and compelling reasons warranted his release including the COVID pandemic, his heart condition, COVID in his prison, hypertension, and obesity. The district court explained that the defendant facing a specific and imminent threat of infection could be an extraordinary and compelling reason, but that Rodriguez had not met that showing. The Fifth Circuit noted that there is little guidance on what constitute extraordinary and compelling reasons, and that district courts should make an independent determination. That is what the district court did here. United States v. Perez, 27 F.4th 1101 (5th Cir. Mar. 10, 2022). The district court denied Perez’s First Step Act Section 404 motion (crack cocaine retroactivity) after considering the applicable 404 factors, “18 U.S.C. 3553(a) and the applicable policy statements issued by the Sentencing Commission.” The problem is that the Commission has not issued any applicable policy statements for 404 motions. On appeal, Perez argued the court may have incorrectly applied the law for compassionate release, for which the Commission has policy statements. The Fifth Circuit agreed and remanded for clarification. The Fifth Circuit also reiterated that the statement of reasons does not have to be “extensively detailed” and that the district court’s order would have been 80
sufficient if it had just stated it considered 404 and 3553 factors without also referencing policy statements that do not exist. The Government urged the Fifth Circuit to find that the district court had to adequately considered and rejected Perez’s arguments, but the Fifth Circuit declined to do so. It noted that a “presumption that the court adequately considered the 3553(a) factors,” such as the one the Court applies when 3553(a) arguments are presented at sentencing and in compassionate release motions, “does not shed any light on why the district court referred to inapplicable policy statements.” United States v. Jackson, 27 F.4th 1088 (5th Cir. Mar. 9, 2022). The Fifth Circuit held that the district court abused its discretion by denying Jackson’s motion for compassionate release based on its belief that §1B1.13’s definition of “extraordinary and compelling reasons” was controlling. See United States v. Shkambi, 933 F.3d 388 (5th Cir. 2021) (holding that §1B1.13 does not bind district courts in resolving CR motions). The government argued that the district court should be affirmed because the facts presented by Jackson—his rehabilitation and his attorney’s ineffective assistance—were not extraordinary and compelling. The Fifth Circuit rejected this argument. The government did not argue this in the district court, so “we can’t use it to affirm.” United States v. Lagos, 25 F.4th 329 (5th Cir. Feb. 7, 2022). In his petition under 28 U.S.C. § 2255, Lagos argued that he had received ineffective assistance of counsel (IAC) at sentencing because his attorney did not object to the loss calculation. An IAC claim has two parts, the defendant must show: 1) that counsel’s performance was deficient; and 2) that the deficiency prejudiced him. When the alleged deficiency occurs at sentencing, the court’s inquiry is whether there is a reasonable probability that, but for counsel’s actions, the defendant would have received a lesser sentence than he did. The Fifth Circuit held that there was no IAC in counsel’s failure to object to the loss calculation on foreseeability grounds. The lender, who was defrauded by Lagos and was also the main creditor in the bankruptcy, was ordered by the court to lend Lagos additional money during the 81
bankruptcy. That money was included in the loss calculation. The district court did not clearly err in finding that, when Lagos declared bankruptcy just after his fraud was discovered, it was reasonably foreseeable that there would be court-ordered costs associated with the bankruptcy. Therefore, Lagos was not prejudiced by his attorney’s failure to make that objection. Alternatively, even if the objection had merit, it was not so “obviously meritorious” that counsel was deficient for failing to raise it. While counsel is expected to raise “solid meritorious arguments based on directly controlling precedent,” counsel need not “raise every nonfrivolous ground.” United States v. Lyons, 25 F.4th 342 (5th Cir. Feb. 7, 2022). In 2009, Lyons pleaded guilty to possession with intent to distribute 50 grams or more of crack cocaine and 18 U.S.C. § 924(c). In the plea agreement, the Government agreed not to pursue a recidivist enhancement or file additional charges, and Lyons agreed to cooperate and not challenge his sentence on appeal or in a collateral attack. He was sentenced to 140 months on the drug offense plus 60 months on the § 924(c). The district court later granted a motion to reduce his sentence on the drug offense to 120 months because of retroactive Amendment 782. In 2019, Lyons filed a motion to reduce his sentence pursuant to Section 404 of the First Step Act. The Government agreed he was eligible but argued the court should not exercise his discretion to reduce the sentence because the Government forewent the sentencing enhancement, Lyons has extensive criminal history, and the his 120-month sentence was within the new statutory range of five to 40 years. The district court denied the 404 motion, and the Fifth Circuit affirmed. The Fifth Circuit found the district court “implicitly recognized its duty to ‘impose’ a sentence ‘as if all the conditions for the original sentencing were again in place with the one exception’ of the changes in the law wrought by the FSA.” Those original conditions include recognizing that Lyons qualified for a recidivist enhancement. Considering the unused sentencing enhancement and denying Lyons’s motion was not an abuse of discretion.
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Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Back to the Basics: Attacking SFSTs, Not the Officer Speaker:
Co-Author:
Mark Thiessen
The Thiessen Law Firm 733 E 12th 1/2 St Houston, TX 77008 713.864.9000 phone 713.864.9006 fax mark@thetexastrialattorney.com email www.thetexastrialattorney.com website
Frank Sellers
Westfall Sellers 1612 Summit Ave., Ste 200 Fort Worth, TX 76102 817.928.4222 phone 817.385.6715 fax frank@westfallsellers.com email www.westfallsellers.com website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
BACK TO THE BASICS; Attacking SFSTs, Not the Officer By: Mark Ryan Thiessen and Frank Sellers
In the heat of trial, every trial attorney fights vigorously for their DWI client. In that fight, it’s understandable that you want to destroy the officer, destroy the Standard Field Sobriety Tests (SFSTs) and vindicate your client. Often times, however, juries end up feeling sorry for the bumbling police officer and will hold it against the client if the attorney berates or embarrasses an officer. This article will explore a trial tested, proven method that educates a jury on the complexities and meticulous grading system of the SFSTs, rather than attacking the officer. Attack the system, not the officer. In the end, if done properly, the jury will empathize with the client. This empathy will assist the jury in finding the client not guilty—without leaving jurors feeling guilty for voting against law enforcement. The Officer Is a Human Being We can all agree there are good and bad officers. Just like attorneys. And contrary to popular belief, even “bad” officers are people too. Just because an officer may be “bad” or incompetent at his job, doesn’t mean they are evil. Somewhere, to someone, they are human with all the emotions, positive attributes, negative attributes, good days, bad days, highs and lows that we all enjoy and suffer. Someone out there loves them. They are someone’s family member. Once upon a time, they took an oath to protect and serve the community we live in. Most of the time, they may still be trying to do their best, but their best is sub-par. Remember this—seriously. You must think like an average juror. How many clients are shocked that the officer “is bold-faced lying” on the stand? We can’t let our daily experiences jade and warp us. Put yourself in the shoes of your family or friends that have minimal police contact. Most respect police and admire their sacrifice. Growing up we were all probably taught to respect and trust the police. And honestly, most of us still do, for the most part. Hell, even criminal defense lawyers introduce their kids to their police friends and teach their kids to respect and honor the police. Most of our jurors were raised the same and probably raise their own kids this way. Only in roughly the last seven years did police misconduct and abuse of power really start making the news. In the past couple years, the pendulum has swung—giving jurors cause to be wary or even scared of the police in certain situations. The world is slowly recognizing the magnitude of the problem and the catastrophic consequences when police lie, hide evidence, destroy evidence, collude, or make “honest” mistakes. To conclude this diatribe about the humanity of police officers, just try your best to remember the jury starts out thinking they are a good officer. Being one of the biggest offenders of the scorched earth cross examination, we understand the eye rolls. But, it’s not about what we know, it’s how we convey it to the jury. In the famous words of Dalton from Roadhouse: “Be nice. I want you to be nice, until it’s time not to be nice.”
Standard Field Sobriety Test Hard Truths The Standard Field Sobriety tests were developed around 1975 when National Highway Traffic and Safety Administration (NHTSA) performed research with South California Research Institute (SCRI) to determine which roadside field sobriety tests were the most accurate. 1 SCRI published three reports: 1. California 1977 (Lab); 2. California 1981 (Lab and Field); and 3. Maryland, D.C., V.A., N.C. 1983 (Field).2 SCRI originally travelled around the United States with six tests, but narrowed it to the three tests we know today: Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS). 3 Twenty years later, three validation tests were undertaken between 1995 and 1998: 1. Colorado 1995; 2. Florida 1997; 3. San Diego 1998.4 Many other articles examine the pitfalls and biases of these validation studies. Concocted in the 70s and validated in the 90s, these tests are now 40+ years old and haven’t been revalidated in the last 20 years. SFSTs are not a law of physics or science, meaning it’s not like they are indisputable. These are simply coordination exercises created by police and “scientists” in the 70s. How the Officer is Trained to Administer the SFSTs Before we dive into the actual SFSTs it’s important to educate the jury on just how this officer was trained and who trained them. Set the stage to illustrate the difference between how they were graded on their SFST proficiency test and how they now grade people on the SFSTs. “Before we get into the tests, can we just explore how you learned to give these tests?” Officers are usually happy to boast about their training. Start by establishing when the Officer was first certified to administer the tests. It’s usually in the academy. • • • •
And how long was your course? (Usually 24-40 hours, around a week.) Who trained the officer? (Other officers.) When you were trained, did you come in the first day and did your police officer teacher tell you how to administer the tests and then just grade you on administering them? No, you were provided a textbook - the SFST manual? You still have it? Did you bring it today?
At this point, if not done prior, establish the NHTSA student SFST manual is a learned treatise under Texas Rules of Evidence 803(18). Rule 803(18) clearly states that a learned treatise may be read into evidence, but not received as an exhibit. 5
NHTSA Student Manual HS 178 R2/06; VIII-1 (February 2006). Id. 3 Id. 4 Id. at VIII-2. 5 Texas Rules of Evidence 803(18). 1 2
Be ready for the State’s objections when you begin reading from the manual. Many untrained prosecutors will try to prohibit you from reading a document not in evidence or try to admit the manual. “Your honor, I would love to admit this manual, but unfortunately under TRE 803(18) it’s specifically prohibited.” The prosecutor may also object to defense counsel reading it in to evidence and not the officer. Nowhere in 803(18) does it say who is allowed to read the learned treatise. And, who do you think puts more inflection and importance in reading the necessary language? The defense attorney should read it and is absolutely allowed to—once it’s established as a learned treatise. •
Officer, you were trained according to the NHTSA student manual? authoritative on how to administer these tests? BAM! 803(18)
And you agree it’s
If the officer gets shifty with what year manual, all of the manuals can be found online and you can find most on the TCDLA app. Prior to trial, it helps to establish either with the State or the officer on which edition of the manual they were trained on and will accept to agree is authoritative. If the Officer is really difficult and wants to use his manual, ask for a continuance for the Officer to go get his manual or send the officer a subpoena duces tecum to bring their SFST manual prior to trial. Most judges are very familiar with the NHTSA SFST manual and will not tolerate the officer’s games. Back to examining their training: • • • • • • • • • •
When you were trained, you got to practice administering these tests? You were allowed to study the entire week? You were allowed to practice the entire week? You knew at the end of the week you would be tested? You knew that you would be tested on the clues, the definitions, and administration? And you had to get a 70, 75, 80% grade to pass? (Most don’t know the actual passing percentage.) Now when graded, you got credit for the answers you got right? Just like in school and every test you’ve ever taken? On a 100-question multiple choice test, you miss 6, what’s your grade? (94) That’s because you get credit for every answer you got right? If your kid came home from school missed 6 and had an F written next to that 94, what would you do? (Most say march down to that school. Agree. And welcome the sidebar objection.)
“Officer, I’m Not Here to Bust Your Chops” Say it 10 times during your cross. Do not attack the officer—attack the tests. “Officer, I know these aren’t your tests. You didn’t design them. You are just following what you’re were trained to do. So, I’m not busting your chops.” Repeat this over and over. Let the jury know we are not attacking this officer. We are not complaining about the officer. We don’t hate the player; we hate the game. “But officer, if someone admits to drinking or you think they might be intoxicated, you are going to give them these tests in this same standard way.” Start putting the jurors’ minds in the shoes of the client. Many times, I’ve even gestured around the entire courtroom and stated “so everyone in this entire courtroom, as long as they are not intoxicated should be able to pass these tests? Judge, reporter, bailiffs, people in the gallery, everyone in this whole courtroom?” Purposefully leave out the jurors to avoid any potential objection. Some officers may pause because they know there are certain limitations on the SFSTs. “Well, I mean there are certain people that may have difficulty with these tests naturally, right? Those over 65 years old, 50 pounds or more overweight, leg, back or neck injuries, head injuries or trauma,
and lots of other ailments?” Remind the jury the officer has no medical training and wasn’t trained by any doctors or nurses. Most officers were told to just take the client’s age, weight, or injuries “into consideration” when determining intoxication. Yeah, right! “But again, officer, I’m not here to bust your chops, let’s examine these tests so that if anyone wanted to try them out, they could know what to look for and how to grade them.” What’s the officer going to say? Before examining the SFSTs, it’s helpful for the jury to visually understand the tests and clues. Whether you bring an easel and butcher paper, your tablet on the screen, or even a dry erase board, make sure it’s a large and colorful demonstration. Imagine a CLE with no PowerPoint versus one with colorful displays. Like us, jurors appreciate, learn better from, and remember colorful presentations. Horizontal Gaze Nystagmus (HGN) Most jurors have seen some sort of advertisement or illustration of an officer waiving a pen in front of the eyes. Before getting into the HGN, dive a little deeper into their training. Explore their range of knowledge. “Officer, you know there are many different types of nystagmus, 88 actually?” It’s unimportant how many types of nystagmus the officer knows, but he will always agree there are many. Only a few are listed in the NHTSA student manual. Most officers have only read about these other types, or maybe seen them on video, very few have actually seen them in person or done testing and seen these. It’s important to educate the jury that there are so many different ways the eyes can jerk and for a variety of medical, environmental, or natural conditions. Additionally, the jury needs to know who trained the police officer to distinguish the minute jerks of the eye. • • • • • • • • • • •
Now, Officer, I’m not busting your chops, but were you trained by an ophthalmologist? Optometrist? Nurse? Person who worked for Lens Crafters? Anyone wearing a white lab coat? The police officer that trained you, he didn’t show you the other types? Have you ever heard of Bruns, latent, pendular, vestibulo ocular, spasmus, or rebound nystagmus? Has anyone showed you the difference between those and horizontal gaze nystagmus? In your manual, you have optokinetic, rotational, post rotational, caloric, and positional alcohol? Have you ever even seen those? And those look just like horizontal gaze, but for non-intoxicated reasons?
Now start demonstrating the HGN main points for the jury to see. Write HGN in black on the top the pad on your easel. “How far do the eyes have to jerk in order to be counted as a jerk?” Most officers get confused and hesitate. “If we wanted to put a ruler underneath the human eye, the jerk of the eye is millimeters, right? Maybe a centimeter? Maybe 1/32 of an inch?” “So how far does the NHTSA manual say the eye must jerk in order to be counted as a jerk? How many millimeters?” If the officer continues to hesitate, rescue him: “Sorry, officer, I’m not busting your chops, there is no definition, right?” Write: No Def. of How Far Jerk (mm). “How many times does the NHTSA manual say the eye must jerk in order to be counted as a clue of intoxication?” Write: No Def of # of Jerks. Some officers may try and get cheeky and say it just has to be distinct and sustained. Break it down for the officer, gently. “Distinct means you clearly see it. And sustained means it must be continual. And that’s just for the second pass
when you are holding it out for at least 4 seconds. What about in the first clue – lack of smooth pursuit? How many times does it have to jerk when you are just going side to side? And then in the third clue – onset prior to forty-five degrees, how many times does it have to jerk before forty-five degrees for you to stop your pen before you get to their shoulder?” Most officers will state just once. If they are still being evasive, rely back on the learned treatise NHTSA manual. “Show me in this manual, where it says once, twice, three times a lady that it had to jerk?” Even writing this type of evasive answering makes me want to destroy this officer. Repeat to yourself, this officer is human, he is loved by someone, somewhere. Get back to your center. “Officer, I’m not trying to bust your chops, this is not your test, you did not design these tests. Nowhere in this manual, did anyone ever state how far or how many times the eyes had to jerk?” Most prosecutors have already bored the judge and jury to death with the timing of the HGN. Usually the officer has been properly woodshedded by the state and knows the HGN timing. If he doesn’t, or did it grossly wrong on the video, you may want to show the jury the difference between NHTSA standardized and how the officer administered. But this article suggests a different tactic in attacking the HGN, one that is not based on breaking down the timing. The HGN is not a divided attention test like the Walk and Turn (WAT) or the One Leg Stand (OLS). The officer will agree. If not, the NHTSA manual defines the WAT and OLS as divided attention tests. 6 The manual defines HGN as an involuntary jerking of the eyes as they gaze toward the side. 7 Nothing about HGN or Nystagmus says divided attention. Remember to be careful with your words here, “nystagmus does not measure mental or physical faculties?” No, it doesn’t. Inexperienced officers will try and argue that it does. To combat this simply illustrate that nystagmus is an “involuntary” jerking and cannot be controlled by our eye muscles, as much as we may want to. And, we cannot make our brains through the neurons to control this involuntary jerking, as much as we want to. Some persistent officers will continue to argue, at which point you may need to distinguish where the loss of mental or physical faculties come into the WAT and OLS and how that’s not possible in the HGN. Nowhere in the NHTSA manual does it say loss of mental or physical for HGN. Depending on the remarks in the video, if the officer just will not agree nystagmus doesn’t measure mental or physical, ask them about the client’s performance, try this: • • • •
He had no problem following your stimulus? Never had to tell him to not move his head? So, he displayed good mental faculties is following your instructions? He displayed good physical faculties in watching your stimulus and not moving his head.”
The jury will be turned off and the officer will damage credibility by continuing to argue. Under your HGN heading, write: Does Not Measure Mental or Physical Faculties. After this amount of cross, the officer has already established a reputation with the jury. Discuss the findings on the HGN. “You found 6 out of 6 clues on my client? That’s all of them, maxed out?” Write: 6/6 on the board in the top left in red. We will come back to this at the end of all the SFSTs. “There is no way that I can prove you didn’t see those little jerks? Stimulus is 12-15 inches from their face, your face is about another 1215 inches from your hand. That’s 24-30” from his eye, at night, looking for millimeters of jerks.” The jury 6 7
Id. at 2. Id. at 1.
gets it. “You never stated out loud when you saw these clues on camera? You never said lack of smooth pursuit, maximum, onset into your mic while you were doing them? In fact, you wrote down how many clues you saw when writing you report? You wrote your report after you had determined he was intoxicated? After you had arrested him? After you towed his car?” Some officers may say they are prohibited from stating the clues on the video by law, which is correct under Fischer. 8 “Well you could have said them and then we just would have muted it, but it could serve to remind you which clues you actually saw? But you remembered later, you saw all of them? We just got to trust you?” Write: Trust Me in big red letters on the tope right of the board. “You didn’t arrest him after the HGN test did you? Even though you got all 6 out of 6 clues? The next test you administered was the Walk and Turn?” The Walk and Turn (WAT) The WAT is a divided attention test meaning that it is supposed to measure your mental faculties and physical faculties. In plain English, they want to see how well you can listen to instructions (mental) and then perform (physical) what you just heard. The WAT is a test where the video will actually show us the client’s performance. There is no “trust me” in the WAT. The overall intent in dissecting this test is honestly for the jury to go home, try it, and realize how absolutely ridiculous this test is and how strictly it’s graded. Slowly break down this test to the jury using the officer and the NHTSA manual. Turn to a new page on your easel and write: WAT in big black letters at the top of your display. Then lay out the eight clues of intoxication NHTSA established. Know them by heart, it’s your profession. Start writing them down the board as you recite them. “The first two clues come in the Instruction Phase, meaning they have to stand like this while you give the instructions and demonstrate. 1. Can’t Maintain Balance; 2. Starts too Soon. The next six come during the Walking Phase. 3. Steps Off Line. 4. Misses Heel to Toe. 5. Raises Arms. 6. Stops While Walking. 7. Incorrect Number of Steps. 8. Improper Turn.” Now the jury can clearly see what the test is graded on. Next, show the jury how the test is really administered. Ask the judge to stand up and demonstrate portions. •
8
“Officer, this test has 18 unique instructions? Don’t worry, I’m not quizzing you, let’s go through them together: (count these out on your fingers as you go so that the jury can follow along) o 1. Place your feet on a line, o 2. In a heel-to-toe manner, o 3. Left foot behind right foot, o 4. With arms at sides and give a demonstration. Tell subject o 5. Not to begin until instructed to so do and asks if subject understands. Tell subject to take o 6. Nine, o 7. Heel-to-toe steps, o 8. On the line and demonstrates. Explain and demonstrate the turning procedure: o 9. Lead foot planted, o 10. Take a series of small steps,
Fischer v. State, 252 S.W.3d 375 (Tex.CrimApp. 2008).
o o o o o o o o
11. To the left direction. Tell the subject to 12. Return on the line, 13. Taking nine, 14. Heel-to-toe steps. 15. Count out loud. 16. Look at feet while walking. 17. Not raise arms from their sides. And 18. Do not stop once they have started. Do they understand? 9
Write: 18 Instructions on the board top left in red. “How many times did you demonstrate the test?” Write: 1x Demo or whatever they say. “How many times did you allow him to practice this test before grading him?” Write: 0 Practice. “Did you tell him the clues you would be grading him on?” Write: 0 Clues Given “Did you give him credit for all the good stuff he did right?” Some may argue or be confused. Circle back to their training and their testing and how they were given credit for all the answers they got right. Hell, every test anyone has ever taken they got credit for the stuff done right! “You agree, age, weight, leg, back or neck injuries may affect an individual’s performance on this test?” Write: whatever issue your client has. “Now tell the jury how many clues equals failure or the decision point?” Write: 2= Intox. Next show the jury how meticulous the test is scored. Go through each of the clues and define them. When you get to heel-to-toe, ask the officer to show the jury with his fingers just how far someone has to miss heel-to-toe in order to be counted as a clue of intoxication. And, make sure to ask if that half inch is between his fingernails or finger beds, on just one step. Write: the measurements of ½” and >6” next to heel-to-toe and raises arms. Be sure to put green check marks next to all the clues your client didn’t exhibit. When you get to improper turn you should slow down and explain to the jury that there are three ways you can get that clue: series of small steps, leave the lead foot planted, and turn to the left. Let the jury see all of the ways there are to get a clue of intoxication. Bring it home for the jury. Ask the officer how many clues your client exhibited. Write 4/8 or whatever it was. “So, you’re telling me that every single sober person in here has to get a 0 or 1 on this test? Cause 2 equals intoxication?” Look at the jury after the officer admits this. Share that common ground with them. “So you’re telling me, if someone were to go home and try this test, not that anyone would, but now knowing all of the clues and how it’s graded (optional sidebar: which is something my client didn’t know), they should be able to get a 0 or a 1 on it?” You have to love the zealous officer that will not only agree, but add that the tests are easy or that he sees plenty people pass them. Finish off the cross with a final blow. “Officer, is this a normal or abnormal way to walk?” Most officers will never admit it’s “abnormal.” Ask them: who else walks like that? Most either can’t think of it or don’t want to say it: gymnast on a balance beam, but they get to balance with their arms to the side; and tight rope walkers, but they get that long bar. Write: Abnormal in the top left in red. “Now I’m not busting your chops, these aren’t your tests, but you’re supposed to judge whether someone has lost the normal use of their mental and physical faculties on an abnormal test? And, you still didn’t arrest my client after this test?” 9
NHTSA Student Manual XV-1 test at end.
The One Leg Stand (OLS) Very similar to the WAT, lay out the OLS. Start with the clues: 1. Sways, 2. Hops, 3. Drops, and 4. Raises Arms. Count out the instructions: 1. Stand straight, 2. Place feet together, and 3. Hold arms at sides. 4. Tell subject not to begin until instructed to do so and if they understand. 5. Raise one leg, either leg, 6. Approximately 6 inches from the ground, 7. Keeping the raised foot parallel to the ground and give a demonstration. Tell subject 8. Keep both legs straight and 9. Look at the elevated foot. 10. Count out loud, in the following manner: 11. One thousand and one, one thousand and two, one thousand and three, 12. Until told to stop. And give demonstration. 10 Follow the pattern in the WAT and write: 12 Instruction, 1x Demo, 0 Practice, 0 Clues Given, 0 Credit given, age, weight, back, leg or neck injuries may affect. 2= Intoxicated. When examining each clue be sure to establish there is no distance for sway as defined by NHTSA. No definition of how many inches or how long someone must sway. Write: ?” You don’t need to save the abnormal surprise, the jury gets it. “Is this a normal or abnormal way to stand? Even the Karate Kid got to raise his arms for balance?” And then bring it home, “so everyone in this room better be able to get a 0 or 1 on this test? And all humans have a natural sway when standing on one leg? So that’s one clue already with no definition of how far or how long one must sway? That means everyone should be able to stand on one leg for 30 seconds without dropping it, and not raise their arms or hop the entire time? Not that anyone would ever try that at home.” Before you wrap up your cross, come back around to the HGN. “My client got 4/8 on the WAT and 2/4 on the OLS, right? Never maxed out any of these tests as we can clearly see on video. But after you arrested him, towed his car, and got to write your report you wrote 6/6 on the HGN?” The jury sees where you are going. The officer sees where you are going. It’s a rhetorical question, let the jury ask it and answer it in their heads. “So, we just have to trust you that he failed that miserably, but on the video, he looked good (we probably are not in trial if he doesn’t look good)?” Lastly, bring the fear home. “Not to bust your chops officer, cause these aren’t your tests, but if someone is pulled over on the way home from dinner and smells like alcohol or admits to drinking at dinner, they could have to do these tests? And then if they do these tests, you will have to administer it in the standardized manner only and grade it just like we saw? 0 or 1 to go home?” This will resonate with everyone. As you can tell, breaking down these tests, they are next to impossible. We as defense lawyers know these tests and on any given day with the weather, nerves, and our conditioning, we couldn’t pass these. To assume regular, everyday people who don’t know these tests are capable of passing . . . Let’s be honest: it’s whether the officer wants to arrest you or not. They are purely subjective. CONCLUSION This article is not suggesting that no tests should be given to suspected drunk drivers. Rather, it breaks down the simple reality of how stringently and subjectively these tests are graded. Unfortunately, many people who “fail” these tests will not have the ability to fight these tests; be it for financial reasons, time constraints, or hiring an attorney who doesn’t want or care to fight it.
10
Id.
We as trial lawyers must know these tests better than the officers. Only once you truly understand these tests can you simplify their basic elements and effectively communicate their unfairness to a jury. Many times, at the end of a trial, jurors will remark how they are never drinking and driving again because there is no way they can pass these tests. These are normal people, just like our clients. And it’s not about the officer; don’t bust his chops. It’s an unfair testing system. Jurors can feel confident in a not guilty verdict for standing up for natural human error in coordination exercises. Break the SFSTs down to the basics make it about the tests, not the officer. Jurors can still respect law enforcement while finding the client not guilty even after “failing” these unfair “tests.”
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Mommy Dearest: Defending Child Injury Speaker:
Angela Weltin
212 Stratford St Houston, TX 77006 832.244.7633 phone angelaweltin@gmail.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
MOMMY DEAREST Defending Child Injury
TCDLA 36th Annual Rusty Duncan Advanced Criminal Law June 16, 2023
ANGELA WELTIN angelaweltin@gmail.com 832.244.7633
Defending Injury to Child Cases
Table of Contents DEFENDING INJURY TO CHILD CASES ......................................................... 3 CHILD INJURY DEFINED BY TEXAS PENAL CODE THE STORY TIMELINE CHILD PROTECTIVE SERVICES MITIGATION
3 4 5 6 6
CATEGORIES OF CHILD INJURY .................................................................. 7 Category 1: Corporal Punishment / Discipline ............................................... 7 GRAND JURY PRESENTATION EVIDENCE TRIAL STRATEGY OPENING AND CLOSING ARGUMENTS
8 9 9 9
Category 2: Broken Bones and Permanent Injuries ...................................... 9 EVIDENCE OBTAINING RECORDS CLIENT STATEMENT TRIAL STRATEGY
10 10 11 11
Category 3: Child Injury by Omission ........................................................... 12 STRATEGIES
12
Category 4: Child Death ................................................................................. 12 EVIDENCE EXPERTS TRIAL STRATEGY
12 13 13
Category 5: Capital Murder Intent to Kill ...................................................... 14 VOIR DIRE SHAKEN BABY SYNDROME EVIDENCE AUTOPSY RECORDS EXPERTS
Angela Weltin angelaweltin@gmail.com 832.244.7633
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DEFENDING CHILD INJURY CASES The very same factors that make child violence and killings so horrifying also make them much more susceptible to wrongful conviction or inflated sentencing. The emotional and sensational nature of these cases increases the stakes and the rewards of a conviction creating both conscious and unconscious incentives for prosecutors and jurors to reach a conviction. Diligent preparation, a medical understanding of the injuries, and focused trial strategies will help prevent wrongful convictions and improper sentencing involving claims of child abuse. The emotional impact of child cases cannot be underestimated. Evidence of a child being hurt, abused, tortured, or killed can evoke strong protective instincts in the jury and cause them to want to lash out at a responsible party regardless of the legal sufficiency of the evidence. It is important to combat the prosecution’s emotional plea with both logic and an impassioned defense. Child Injury cases are unique within the realm of violent cases. For one, the evidence is less direct evidence based and more circumstantial. There are few if any eyewitnesses to the alleged conduct, and often it is medical or scientific evidence that leads to the suspicion of abuse. In many cases it is “ruling out” a caretaker’s story, timeline, or rendition of events that leads to a criminal charge. As criminal defense lawyers, it is important to fully investigate every case no matter how bad or clear a case may appear (and indeed may be). That duty is also required by case law, the American Bar Association, and the State Bar of Texas Guidelines. A proper pretrial investigation will help develop a theory of the case and allow for “a win”. In these cases, “a win” may be a lesser included offense, reduced punishment, or an outright acquittal. It is incumbent on the defense attorney to conduct an independent investigation separate from the law enforcement’s investigation. This means not relying solely on the information provided in discovery from the State. There are numerous types of child injuries. Grouping these offenses into categories can aid a defense practitioner in their investigation, negotiation, and trial defense. Asking the right questions, investigating mitigation facts, and streamlining strategies for defense will help prevent wrongful convictions and reduce inflated punishment sentences.
CHILD INJURY DEFINED BY TEXAS PENAL CODE PC 22.04 Injury to a child is codified in Section 22.04 of the Penal Code, which provides: (a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual: (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily injury.
Angela Weltin angelaweltin@gmail.com 832.244.7633
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Range of Punishment ● It is a first-degree felony when BY CONDUCT or OMISSION causes of serious bodily injury or serious mental deficiency/impairment/injury which is committed INTENTIONALLY or KNOWINGLY. Punishment for a first-degree felony is 5 years to 99 or life in prison with up to a 10,000 fine. ● It is a second-degree felony when BY CONDUCT or OMISSION causes serious bodily injury or serious mental deficiency/impairment/injury is committed RECKLESSLY. Punishment for a second-degree felony is 2 years to 20 years and up to a $10,000 fine. ● It is a third-degree felony when BY CONDUCT of bodily injury is committed INTENTIONALLY or KNOWINGLY. Punishment for a third-degree felony is 2 years to 10 years in prison and up to a $10,000 fine. ● It is a state jail felony when BY CONDUCT and OMISSION causes of serious bodily injury, serious mental deficiency/impairment/injury or bodily injury is committed with CRIMINAL NEGLIGENCE. Punishment for a state jail felony is 180 days to 2 years in state jail prison. Definitions of Culpable Mental States and Child ● Intentionally: conscious objective or desire to engage in the conduct or cause result ● Knowingly: aware that conduct is reasonably certain to cause the result ● Recklessly: aware but consciously disregards a substantial and unjustifiable risk that result will occur ● Criminal Negligence: ought to be aware of substantial and unjustifiable risk that result will occur ● Child: 14 years of age or younger
THE STORY In all cases of abuse, getting the client’s story is incredibly important. When talking to the client, learn everything that happened the day in question and learn about the client’s emotional state at the time. It is often helpful to have client reenact some of the events to fully understand how the injury occurred. Getting names and contact information about fact and character witnesses is paramount to fully understanding the full picture story. Getting more information from your client will also help develop a list of witnesses. It is important to get a full accounting of events, not just what happened in the minutes preceding the 911 call. Who had been with or seen the child earlier that day? In the days before? Likely, law enforcement and CPS will have failed to talk to all the important witnesses in the case. Regardless of what admissions the client may have already made to law enforcement or others, do not only rely on those statements. Oftentimes, you will find that the client felt like he/she had to tell police, doctors, CPS something specific regardless of its accuracy. For instance, if police, medical personnel, and CPS are all insistent that the child suffered a fractured femur, the client Angela Weltin angelaweltin@gmail.com 832.244.7633
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may feel pressure to fill in the blanks with suppositions and guess work about how the injury occurred without really knowing how it happened. Often this guess about how an injury occurred is not medically accurate and is then used against the client. Typically, it is a parent or caregiver who is the accused of abuse during a crisis situation. They may be at the hospital or undergoing emotional stress about the child’s wellbeing. The first thing on the parent’s mind is the child, not how to answer interrogation questions. Therefore, in child injury cases it is not uncommon to have what the State will often call a “confession” though it is hardly such. It may be the parent trying to make sense of a incomprehensible situation and not being accurate. It is important to delve into the emotions of that day with the client. Watch how the client emotes when telling the story. In child injury cases, the client’s emotional state at the time of the incident can help jury understand and empathize with the actions of the caretaker during the crisis. When speaking with the client, the attorney may notice a flat affect or unemotional tone which indicates that the client may be trying to emotionally distance themselves from the events. It is important to understand that the mind works to protect itself in this way. Working with a therapist to either help explain that to a jury or help client get in touch with his feelings on the case will become necessary. The jury will read into the client’s affect and demeanor, so it is important to understand how the client will present as a witness.
TIMELINE It is important to develop a clear, concise, and understandable timeline of events surrounding the injury for the attorneys and jury. A timeline can look like a monthly, weekly, daily or hourly calendar depending on the window of time the injury occurred. Fill in the calendar with undisputed factual times such as interview times, arrest time, ambulance arrival, and phone calls made. Next, enter data from your client about the regular course of the day including events leading up to the injury, the injury event and the actions that occurred after the injury can also be entered into timeline. Think about how best to get the information before the jury. Having a document or a chart that allows the trial attorney to add events in real time as the testimony occurs works well. For example, a printed blank weekly calendar can be written on to add event times or a flip chart can be used to add to timeline as trial progresses. The attorney should remember to ensure the events have been testified to before adding the information on the demonstrative calendar or timeline. This timeline can be admitted into evidence at the end of trial to allow jury to review during deliberations. The prosecutor will typically try to narrow the window of time the injury could have occurred. The defense team should ensure that that timeframe is not too limited or narrow. Medical experts cannot determine exact dates or times for resolving bruises or lacerations. Widening the timeframe in which the injury could have occurred can allow for alternative theories and additional suspects who had care of the child. Furthermore, if the client has been the long-time caretaker for the child, then showing years of the child’s life, such as history of well-being, good medical care, and good parenting, becomes important. The prosecutor should not be the sole developer of the timeline, or the jury may get a misimpression about when, where, and how the injury occurred.
Angela Weltin angelaweltin@gmail.com 832.244.7633
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CHILD PROTECTIVE SERVICES It is important to be aware that a separate investigation by Child Protective Services (CPS) is occurring at the same time as the law enforcement investigation. Getting evidence by subpoena of CPS records on all abuse type cases will be a huge advantage to the defense. Be careful with CPS investigations. The social workers do not abide by the rules of evidence or the rules of the police or the prosecutor. Social workers will go to jail to interview charged offenders without benefit of counsel or even without notification to counsel that questioning will take place. CPS will record the interview with the client, so be sure to get that evidence prior to trial. Upon taking on one of these cases, it is important to make client and family aware that CPS investigation will be conducted and notify the client that he/she can refuse all questioning without attorney present. Also, sending a letter or email to CPS stating legal representation and requesting to be present for client questioning may be helpful. If you represent your client early enough in the investigation, you can prevent a potential unfriendly witness against your client at trial. Often a CPS client statement is used by the prosecutor to highlight differences from the client’s first statement, thus insinuating untruthfulness. If your client says nothing to CPS, it is harder for them to twist client’s words to show a different version of client’s statement at trial.
MITIGATION Mitigation is so important in child injury cases. Defense attorneys have an ethical and legal duty to conduct a thorough investigation when it comes to punishment. Understanding why the conduct occurred is very important to the punishment phase of the trial. Investigating if this is a continued course of conduct or one incident will be important. Determining if drug addition or mental health issues come into play will necessitate additional experts to aid your defense. Being curious about the relationship of your client and the child might open avenues of mitigation evidence. For example, “Was this a parent who was always an active part of the child’s life?”, “Was client excited about the pregnancy?” “Did client attended the child’s school events?” “Who took the child to pediatrician’s office for care?” Locating witnesses who can tell you about the relationship between the accused and the child is helpful. Consider getting pictures of the accused and the child together at a happy time to use during trial. If you can paint a picture of a loving parent or caregiver from the beginning, then it will be a harder sell for the State to convince a group of 12 that the act was intentional or knowing or that this was anything other than a one-time loss of control. Ultimately, for mitigation to be strong enough to merit a probation, a jury must be convinced that the injured child is no longer in danger and that no one has reason to fear the client now. This can be done by showing that our client has addressed and will continue addressing the underlying problem. Perhaps the client has received treatment for his/her mental health issue or is getting treatment for addition issues. This can also be done by showing that the child is safely in another home out of the reach of your client, depending on the circumstances.
Angela Weltin angelaweltin@gmail.com 832.244.7633
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CATEGORIES OF CHILD INJURY Category 1: Corporal Punishment / Discipline An important defense for an injury to a child case is contained in Section 9.61 of the Penal Code. While it is not an affirmative defense, it is a justification for the act. Section 9.61: (a) The use of force, but not deadly force, against a child younger than 18 years is justified: (1) If the actor is the child’s parent or stepparent or is acting in loco parentis to the child; and (2) When and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare. For purposes of this section, “in loco parentis” includes grandparent and guardian, any person acting by, though, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents. This justification does not permit a teacher to use physical violence as reasonable corporal punishment because a child is unable to perform, either academically or athletically, at a desired level of ability. When a parent or caretaker uses force on their child for the purposes of discipline, it is justified when it is reasonably necessary. When a parent is criminally charged for using physical violence/corporal punishment on their child, the question of what society deems as reasonable is vitally important. As a defense practitioner it is important to recognize this category of child injury and use defense tactics early. The following are examples of potentially justified child discipline cases that have been criminally charged: Example 1: Parent spanks 5-year-old with a belt which causes marks on buttock, back, legs and arms. Child goes to school and is sent to nurse when child shows signs of pain which leads to police being called. Example 2: Father puts teenage son in headlock for trying to run away from home. Neighbors call 911 after hearing yelling on the lawn. Son tells police that his dad hurt him and made him lose his breath. Example 3: Mother slaps 9-year-old child across the face for cursing at parent causing bloody lip. When child goes to his divorced father’s house for visitation, he calls the police after seeing the swollen lip and talking to the child.
GRAND JURY PRESENTATION When the case is charged but not yet indicted, a defense attorney has the big advantage of having an opportunity to present its case at Grand Jury. Grand Jury can be a defense counsel’s best friend in these types of cases. It allows citizens from the community to determine the reasonableness of the discipline. It is important to email a request to the district attorney’s office to allow the defense to prepare a packet of information to provide to the Grand Jury to assist in their decision about whether there is probable cause to believe the case should go forward to trial. Resolution in the form of a “no bill” at Grand Jury is often the quickest way to resolve a charged child injury case. However, most cases are indicted 60-90 days after arrest, so it is important to work quickly to investigate and collect relevant and mitigating evidence that may be provided to the Grand Jury. Angela Weltin angelaweltin@gmail.com 832.244.7633
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The Defense Grand Jury Packet should contain information that shows a holistic picture of the family dynamics. A letter to the Grand Jury from the defense attorney laying out the circumstances of the event, legal reasoning for the case to go no further is necessary. Some attorneys have their client also write a letter to the Grand Jury but be aware that if the case goes forward, the letter can be used as proof against the client. Writing on behalf of the client is a safer vehicle to get client’s version before the Grand Jurors without subjecting the client to impeachment on the witness stand. Family photos showing a loving group is important to add. Character letters supporting the good parenting skills and good nature of the client are important. School records of the client may be important if the child exhibits difficult behavior. Mental health records of the child can be very important to show extra challenges the parent may be facing. An employer letter for the client can be helpful to establish a good work record and the diligence of supporting the family. Medical records of routine care may be important to combat fears of ongoing abuse. Certificates of parenting classes or proof of on-going family therapy may be important to relieve the jurors of burden of future issues. Letters from family or friends of family reporting on extra issues the child has that makes parenting challenging. Provide a plan of action for the family should tempers rise in the future to prevent escalation of violence. Checklist of items to include in Grand Jury Packet: 1 Letter from attorney 2 Letter from doctor or family member with resolved medical issue 3 Photo of healed injury 4 Photo of the happy family 5 Character Letters 6 Medical Records (past and current) 7 Proof of mental health issues 8 Proof of good employment 9 Certificates of completion of parenting classes 10 Child school records 11 Letters establishing any extra difficulties with the child 12 Family plan to prevent future issues AN EXAMPLE OF HOW TO START THE ATTORNEY’S LETTER: Dear Grand Jurors: I am writing to you on behalf of my client, Michael Daoud and his wife Sarah to request a vote of No Bill in this family matter. Mr. Daoud is a 39-year-old well respected businessman, longtime Houstonian, and loving father (see character letters). Although the extent of the injury was unintended, this is a matter of parental discipline which is protected under Texas Law. He and his wife are humbly requesting that this matter be handled outside the criminal justice system. If at least nine Grand Jurors do not support a True Bill finding, then the case will be No Billed and the case discharged. However, if the case is True Billed and goes forward, the investment of time and energy developing the packet can still be useful. The packet materials may be used to request the prosecutor to dismiss in the interest of justice or provide persuasion to the prosecutor to agree to a pretrial diversion contract for a dismissal after completing conditions of the contract such as counselling or anger management. And finally, the packet material may be submitted to the judge in the form of a Pre-Sentence Investigation report, if looking to avoid a Angela Weltin angelaweltin@gmail.com 832.244.7633
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felony conviction and get an opportunity for a deferred adjudication probation. Preparing a packet is incredibly useful in a discipline type of case.
EVIDENCE The type of evidence typically seen in discipline cases are admissions by client, statement of child to police, photographs or medical records of injury, and Child Protective Services records. If injury is outside normal reasonableness of parental correction, then it is important to take family history account to determine if there were extraordinary circumstances that led up to the event such as mental illness or unruly behavior by the child. The age of the child and the noncharged parent’s desired outcome become important factors in the resolution of these cases.
TRIAL STRATEGY Voir Dire is key to being successful in a parental discipline case. Asking the jurors about their own childhood and how they feel about it as well as who does not believe in corporal punishment is important to know. Does this rise to the level of a criminal evident? What is the different standard for losing your child to CPS vs beyond reasonable doubt standard of criminal a charge? Limiting hearsay evidence before the jury with Crawford objections to the judge is important to limit parts of medical records, CPS records, 911 recordings and body camera arrest videos. Crawford v Washington, 541 U.S. 36 (2004) is a landmark Supreme Court decision that reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment. It held that prior testimonial statements of witnesses who have since become unavailable may not be admitted without cross-examination.
OPENING AND CLOSING ARGUMENTS Defense counsel arguments should be based in logic but supported by emotional plea for in the best interest of the family. Giving an opening statement about parental discipline will give the jurors a road map to follow and infuse trustworthiness when evidence supports the attorney’s words.
Category 2: Broken Bones and Permanent Injuries Cases of “serious bodily injury” are typically not viewed as reasonable parental discipline, and as such, that justification is unlikely to be successful. These are the type of cases that jurors can want to send the charged person to prison. The range of punishment is usually 5-99 years in prison. However, sometimes a reasonable form of punishment can meet an unforeseen event that results in the serious injury such as the child awkwardly falling when being spanked and breaking a wrist. The following is an example of “serious bodily injury” charged case: Example: 9-month-old baby Violet suffers from a broken femur in her leg and is taken to the hospital by the parent after baby stops crawling and becomes extra fussy. Parent says that that baby is not walking yet but does typically crawl. Parent does not know how the injury occurred but does relay that the baby has older siblings 6 and 8 years of age who like to rough house and Angela Weltin angelaweltin@gmail.com 832.244.7633
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that they possibly caused the injury. Doctor says this type of injury is unlikely to come from a sibling pushing or falling on her nor self-injury. Doctor concludes likely child abuse.
EVIDENCE Type of Evidence in serious injury cases consists of a medical professional who will speak to the permanent serious injury along with medical records from hospital, x-rays and/or MRI records. Having a doctor or medical professional as a defense expert will provide invaluable information to prevent the injury from being exaggerated and to allow for alternative theories about how the injury occurred to be relayed to the jury. The complainant in these cases is usually preverbal and not a testifying witness. In this case, circumstantial evidence and parent statement will be used as evidence against the client.
OBTAINING RECORDS The importance of obtaining all the medical records in a child injury case simply cannot be understated. This is an area where it is especially important to do your own independent investigation. Regardless of whether the State has provided you with the child’s medical records, still obtain them on your own. The State only has what the hospital or doctor’s office has given to them. There are two options to obtaining the medical records from hospital or doctor’s office both require HIPPA Release form: 1) subpoena duces tecum or 2) have child’s parent request copies. In any event, be certain to get an original business records affidavit along with the medical records to file with the court in advance of trial. This will allow the records to be admitted in trial without calling a custodian of records witness to testify. In your request be sure to ask for all nurse and doctor notes as well as all dictated and electronic medical records. Often, you will find that you will get more records than the State has been provided. Remember, trustworthiness is the touchstone of admitting business records by affidavit, and if there is something inherently untrustworthy about the records or the way they were compiled, then you have a good argument as to why the records should not be admitted. Additionally, in child injury cases it is important to get all the child’s medical records, not just the records from the injury. This is especially true if the child is an infant. In that case, getting prenatal records, birth records, and both well and sick visit records is recommended. Ordinarily, there is a hidden treasure in these records, such as premature birth or indication of underlying heart defect. The State cannot always be relied upon to get these records, so consider subpoenaing these as part of defense preparation. These records must be obtained early on for optimal use, especially considering the time it takes to receive the records from the hospital. A helpful tip is to call the hospital, doctor’s office, or medical examiner’s office before you request the records. Find out the format the records are kept. Find out if the records need to be requested from multiple departments. For instance, if the child had imaging done, then a separate subpoena may need to be served on the radiology records department.
CLIENT STATEMENT The biggest asset the prosecutor has in these cases is establishing how the parental statement does not match up with the injury, and therefore implying the client is lying and guilty of injury. The prosecutor uses the medical expert to disprove the parental history and timeline of the events. The prosecutor then establishes that the parent had care, custody, and control over the Angela Weltin angelaweltin@gmail.com 832.244.7633
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child during the time of injury, and therefore, eliminates reasonable doubt that someone else is responsible. To successfully combat this type of prosecution, it can be important to do a timeline with the jury and show all the people the child was around during the days surrounding the injury. It is also important to have medical describe differences of a child’s anatomy or susceptibility to injury compared to that of an adult. Serious injury cases can be defended by admitting that the client does not have the medical knowledge to understand how the injury occurred and that he/she only gave a best guess as to how the injury occurred. Explaining how and why the client under the stress of having an injured child believed at the time of questioning that the injury occurred in a certain way, is important to your case. Understating and showing the jury that the client was not privy to the medical exams and MRI reports and did not account for all possibly of injury is also of value. Providing at trial an alternative theory based on what client now knows can open doors that the prosecutor would rather keep shut. Also do not acquiesce that the injury rises to the level of “serious bodily injury” even if the injury involves a fractured or broken bone. If surgery is not required to repair the injury many medical professionals may label this as “bodily injury” instead of the legal definition of “serious bodily injury” thus lowering the range of punishment for the client.
DEFINITIONS TEXAS PENAL CODE 1.07 “Bodily Injury” means physical pain, illness, or any impairment of physical condition. “Serious Bodily Injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
TRIAL STRATEGY It is recommended that a medical expert be assigned to the defense team to consult and potentially testify at trial to establish manner and extent of injury on these “Serious Bodily Injury” cases. It is incumbent upon the defense lawyer to locate an expert and file motion for expert funds to pay the medical professional for their time and expertise. If the State properly requests notice of experts, defense counsel will need to provide expert notice to the State in order for the defense expert to testify. To prevent being surprised at trial, request notice of State’s experts, call experts or meet with them prior to trial, and fully understand the State’s theory. The Daubert standard is a rule of evidence regarding the admissibility of expert witness testimony. Filing a Daubert motion prior to trial, may exclude the presentation of unqualified evidence to the jury. This will ensure that the State’s expert testifies only to his/her medical expertise on the subject matter in which court establishes the witness as an expert. Be aware that the prosecutor may try to exaggerate the pain and suffering involved with the injury, so talking to the defense expert will help prevent this injustice.
Angela Weltin angelaweltin@gmail.com 832.244.7633
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Judges will often allow the defense expert to sit in on the trial to hear State’s expert testify. The defense expert can be helpful to the defense attorney’s questioning in cross examination as well as be able to refute or explain the State’s inaccurate theory.
Category 3: Child Injury by Omission On omission crime is not committed with an action, but rather by not acting when a person has a duty to act. A duty to act can be created by an actor who has assumed care, custody, or control of child if he has by act, words or course of conduct acted to cause a reasonable person to conclude that he has accepted responsibility for the protection, food, shelter and medical care for a child. The following are examples of criminally charged Omission cases: Example 1: Mother charged for not intervening when new boyfriend severely beats 4-year-old child with belt, belt buckle, hands, bathroom towel rod and phone charger cord. Mother initially lies to police to protect boyfriend by lying about how injuries occurred, but then admits that boyfriend did the injuries. Example 2: Mother does not take child to hospital after boiling water inadvertently falls on child’s arm. Mother treats at home with aloe vera, Tylenol and prayers; infection sets in resulting in child’s death.
STRATEGIES Sometimes charges are brought against both caretakers; one for the actionable conduct and the other for allowing it to happen or not getting medical treatment. The prosecutor can then use one parent to turn state’s evidence against the other to strengthen their case. A careful review of the case may be helpful to determine the best course of action for the client whether it be trial or a plea deal with cooperation. Jurors tend to hold the biological mother at fault for failing to protect her child. However, an abusive parent is often also an abusive spouse. Having a domestic violence expert evaluate the mother of the child may provide insight about defenses and mitigation. Also, there is a very narrow defense to prosecution when the charged parent is also victim of violence by the other charged offender. See Texas Penal Code 22.04 (k) defense to prosecution (B) (i) (defendant) was a victim of family violence, committed by a person who is also charged with an offense against the child, did not cause the conduct and did not reasonably believe that an effort to prevent the person also charged with the offense would have an effect.
Category 4: Child Death When a child dies because of intentional or knowingly causing serious bodily injury, the client can be charged as a first-degree felony which holds a range of punishment of 5-99 years or life in prison. Younger children are more vulnerable to, and comparatively more likely to be killed by, beatings, asphyxiation, and strangulation: these types of killings that are generally regarded as more reprehensible than most deaths by shooting. Examples of child death cases that can be criminally charges are as follows: Example 1: The father of the child was the caretaker when the baby begins having trouble breathing. Father calls 911 and begins CPR until the ambulance arrives. Despite continued Angela Weltin angelaweltin@gmail.com 832.244.7633
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CPR, the child is pronounced dead at the hospital. An autopsy is conducted and trauma to head, spinal cord, and eyes are noted. Example 2: The three-year-old child is reported missing from the playground by the mother. The child is found dead in the bayou days later covered in bruises and lacerations. The autopsy report is conducted and findings of blunt force trauma resulting in homicide are submitted. The stepfather admits to dumping the child’s body but claims the mother was the one who beat her child over a period of hours to death.
EVIDENCE Evidence in these types of cases comes from the Medical Examiner’s Office and involves forensic collection of fingerprints, hair fibers, blood, and DNA, as well as the physical examination, testing and documentation of the autopsied the body to examine organs, bones and tissues to determine manner and means of death.
EXPERTS The forensic pathologists and sometimes other specialists such as forensic entomologist, forensic radiology, forensic toxicology, forensic anthropologists, and neuropathologists may be called upon to provide information about the deceased cause of death. Forensics has many different branches such as forensic entomology and odontology. Forensic entomology is the study of insect evidence. An entomologist might help determine time of death based on insect life cycle with the found body. Forensic odontology is the analysis of dental evidence. A forensic anthropologist may consult and confer with an odonatologist, for example, to determine an age range more accurately for a human skull. A forensic pathologist is the medical examiner who performs the autopsy and records findings. They often work with neuropathologists on child deaths with brain trauma. Neuropathology autopsy examines the cross-sections of the brain and spinal cord under powerful microscopes. Examination of brain tissue after death is the way to diagnose the specific neurodegenerative disorder of an individual. Also, neuropathologists may testify their opinion regarding shaken baby syndrome. Cases in which the body of the deceased is found days, weeks or years later may involve different forensic experts. Forensic anthropology is the study and analysis of human remains for purposes of assisting a criminal investigation. Forensic anthropologists provide information about the origin and identity of a body and the means and time of its death. Forensics has many different branches such as forensic entomology and odontology. Forensic entomology is the study of insect evidence. An entomologist might help determine time of death based on insect life cycle with the found body. Forensic odontology is the analysis of dental evidence. A forensic anthropologist may consult and confer with an odonatologist, for example, to determine an age range more accurately for a human skull. Understanding who the State’s witnesses will be will help determine what type of defense witnesses should be obtained to assist in understanding the case. Cases of examined trauma without testimony of how injuries occurred can cause issues with state’s proof. The State will illicit hypotheticals of how the injuries may have occurred. Having a defense expert will help you better cross examine state’s expert and provide alternative theories of how the injuries where sustained. Angela Weltin angelaweltin@gmail.com 832.244.7633
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TRIAL STRATEGY Usually, the medical examiner that performed the autopsy is the expert that the State will call to determine cause and manner of death. If the testifying expert is not the same examiner that conducted the autopsy examination, it is important to request hearing outside the presence of the jury to object to confrontation clause violations and site Crawford issues and limit the testimony to conducting expert. The goal at trial may be to challenge the science behind the findings by submitting a defense expert and challenging the State’s expert opinion. The goal may be to submit an alternative theory of the injury, or the goal may be to mitigate the punishment by establishing the intention was not to cause death, and that the client made a bad mistake but is not a bad person.
Category 5: Capital Murder Intent to Kill The difference in the types of cases charged as Capital Murder, first-degree Injury to a Child, or Murder is a blurry one. The same type of evidence can exist to charge as first-degree Injury to Child as a regular Murder or a Capital Murder. The consequence of a Capital Murder conviction is a sentence of life without parole or the death penalty. Whereas a first-degree Injury to Child who dies, or Murder case is 5-99 years or life in prison. However, rarely is death sought in Capital cases involving parent involved child death. Also, Capital Murder charges raise the burden on the prosecutor that is often difficult to meet. That is the mens rea of intentionally or knowingly causing the death which is required to convict of Capital Murder involving a child under 10 years of age. The jury must believe that the parent intended to not just to seriously injure the child but to specifically cause the death. Specific intent is easily proven if complainant is shot, throat cut, or deadly weapon used in a manner likely cause death. However, juries have difficulty believing any caretaker really wants or knew that death of their child would result. The exception to this is of course mental health issues that potentially rise to the level of insanity defense. The following is an example of charged Capital Murder case: Example: The father of the child was the caretaker when baby stops breathing. He calls 911 and begins CPR until ambulance arrives. Despite continued CPR, the child is pronounced dead at hospital. The Medical Examiner determines there is trauma to head, spinal cord and eyes which is the triad of symptoms that indicate violent shaking or blunt force trauma as cause of death. The father is charged with capital murder.
VOIR DIRE Helping the jury understand in voir dire the difference between the required mental state of “intent” to kill verses mental state of “knowingly” cause death verse mental state of “recklessly” is key to the successful defense of a lesser. Lack of mens rea, criminal intent, of the actor to conduct the crime can be a very successful defensive theory to reduce the punishment level downward. The argument that the client did not intentionally or knowingly cause their child to die can result in a jury finding client guilty of a lesser crime of injury to a child. This can allow for a punishment range less that life without parole or death penalty. In some cases, getting a guilty on the lesser crime is the victory. Using hypotheticals with the jury to help explain mental state’s work better than just defining the terms. Angela Weltin angelaweltin@gmail.com 832.244.7633
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Specific Intent Hypothetical: Robby the Robber tries to take Victor’s wallet by threatening him with a gun. When Victor tries to run away, Robby shoots Victor three times in the chest, grabs his wallet and runs. Robby charged with Capital Murder. Do you agree that Robby had specific intent to kill Victor? Yes. Change the facts and instead, Robby pointed the gun at Victor’s foot and pulls the trigger. This caused Victor to go to the hospital where he later died of infection from the injury. Was Robby’s specific intent to kill Victor? If no, then Robby is guilty of Robbery and Murder or Manslaughter but not Capital Murder.
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Egg Hypothetical: What is the difference between intentionally, knowingly, recklessly? Let’s say you take an egg out of the carton in the grocery store and smash it into wall. Was that intentional? Yes. Take same egg and squeeze it to see how hard the shell was until it breaks. You squeezed egg knowing that it will break if you apply enough pressure. Now you take the carton of eggs and throw it roughly into the cart and later sees that egg has cracked. That could be considered reckless conduct.
SHAKEN BABY SYNDROME A shaken baby determination should be critically reviewed. The interesting point at the heart of the shaken baby controversy is that it involves medical professionals establishing whether an illegal act has taken place. The doctor is diagnosing a crime. Even when there is no corroborating evidence at all, doctors must decide whether they can spot signs of abuse with enough certainty to make life-changing assertions. About 30 years ago, as CT scans and other diagnostic imaging became more refined, prosecutors began to charge parents, babysitters and caregivers with murder or manslaughter or various forms of assault when a child has been brought to the ER with a “triad” of symptoms — subdural hematoma, retinal hemorrhages, and cerebral edema. Some research going back to the 1940’s associated those symptoms with the whiplash-like injuries that the doctors described as coming from shaking the baby so that the baby’s head snaps back and forth. If a baby has no neck strength, the head can really flop around. And doctors came up with a name for this condition, Shaken Baby Syndrome. Shaken Baby Syndrome is a triad of symptoms that became the diagnostic tool for detecting violent abuse. Symptom one: bleeding in the dura (thick membrane of tissues that surrounds the brain and spinal cord). This was caused by the tearing, during shaking, of the bridging veins that drain blood from the skull. Symptom two: retinal bleeding. This was caused by tearing, during shaking, within the eye. Symptom three: brain swelling. This was caused by damage, during shaking, to nerve fibers in the brain. Such injuries could only have been caused by shaking, which would lead to the child’s instant collapse. Therefore, the person who was present when it happened was the guilty one. These findings should be questioned when paired with no other signs of violent attack such as bruising or fractures where the child was gripped or other signs of abuse other than trauma associated with CPR, bruising to chest and fractures to ribs or the breastbone. The problem with Shaken Baby Syndrome was that no one has been able to subject it to scientific verification. Obviously, it would be unethical to physically shake live babies to see what happens to them, but biomedical engineers tried to shake baby crash-test dummies and cadavers to see what kinds of forces could be generated. One study, by F.A. Bandak, found that to cause the kinds of brain injuries reported in Shaken Baby Syndrome cases, you would have to shake the baby so hard that the muscles of the cervical spine would be severely torn. He also found that the Angela Weltin angelaweltin@gmail.com 832.244.7633
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muscles of the cervical spine would be torn at forces much lower than the forces necessary to cause brain injury. In other words, if there is only the triad — subdural hematoma, retinal hemorrhages, and cerebral edema — and no significant neck muscle injury, the brain injury cannot be attributed to shaking. Because of these studies and other controversial exonerations, many experts are shying away from an opinion of shaken baby syndrome and instead indicating blunt force trauma.
EVIDENCE Evidence in these types of cases is heavily medically based. The doctor’s opinion will be used at trial. Understanding how a doctor approaches a finding of abuse is helpful to understand. Injury evaluation by medical professionals begins with physical exam of the child’s body. Findings that raise suspicion are injuries inconsistent with the history, multiple injuries in various stages of healing, or any injuries pathognomonic for abuse, such as cigarette burns. Evidence of poor caretaking, sudden onset of mental status changes, bruises on an infant that is not yet cruising, bruises to the pinna, neck or abdomen and any injury to the genitalia should also raise suspicion. It is important to keep in mind that some findings may be concerning initially but are not signs of intentional injury. Intense crying, coughing, or retching may cause petechiae on the face and shoulders. Mongolian spots may appear as bruising in the lumbosacral area, and coagulopathies may result in usual bruising. Pathologic bone disease (e.g., chronic renal disease, osteogenesis imperfecta, and rickets) may present with suspicious fractures. The chart below shows how diagnosis of Non-Accidental Trauma can be determined.
Angela Weltin angelaweltin@gmail.com 832.244.7633
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DEFENSES After a thorough review of the medical evidence and interview of your witnesses, a proper defense may become apparent. Typical legal defenses for child death cases are as follows: Accident: The intent of the accused was not to harm, instead it was bad accident. In order for this to be believed, this needs to be backed up with a medical expert opinion. Wrong Person Charged: Someone else is responsible for the death of the child. Often there is more than one person who cares for the child. A thorough investigation should delineate who else had opportunity to injure the child. Researching other potential suspects for criminal history and CPS history is important. No Intention to Cause Death: A parent may have used excess force with the child but only intended to teach the child a lesson, not intentionally or knowingly cause his death. The prosecutor does not need to prove specific intent, knowing conduct can be enough to convict. Underlying Medical Issue: A careful review of autopsy and prior medical records may shed light on previously undiagnosed medical issue like heart defects, prior brain trauma, brittle bone syndrome or brain seizures. If a child stops breathing, a search for reasons this may have occurred outside of abuse is necessary. An undiagnosed medical issue can be mistaken for abuse. If no defense seems obvious, focus on the any and all mitigation evidence.
AUTOPSY RECORDS In child death cases it is important to know which records to request from the medical examiner’s office. Again, do not depend on the State to provide these records. Autopsy reports may be requested through subpoena or through a public information act request. To that end, be aware of Article 49.25 of the Code of Criminal Procedure, which provides that the full report and … detailed findings of [an autopsy performed by the medical examiner] shall be part of the record [and the records may not be withheld, subject to discretionary exception under Chapter 552 Government Code [emphasis added]. Additionally, under Garcia v. State, 868 S.W.2d 337 (Tex. Crim. App. 1993), Denoso v. State, 156 S.W.3d 166 (Tex. App.—Corpus Christi 2005), and Texas Attorney General Opinion OR-2001845, an autopsy report is a public record. It is helpful to include this reference in your request for the autopsy. In addition to the autopsy report, also subpoena all the autopsy photographs, the medical examiner investigator’s report, and all toxicology reports. Perhaps most importantly, be aware that the biological samples taken at autopsy can be preserved so that your expert can review the same or perform additional testing if need be.
FINAL THOUGHTS ON EXPERTS It is worth noting that oftentimes more than one doctor contributes to a final autopsy report. This can create a confrontation issue if only one of the doctors appears at trial. For instance, once the eyes are removed, they may be sent to an ophthalmologist for evaluation, and he in turn would write a report. In that instance, it is likely that the ophthalmologist’s report regarding the Angela Weltin angelaweltin@gmail.com 832.244.7633
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eyes has been cut and pasted into the final autopsy under the appropriate heading. If you suspect this is the case, then make the proper confrontation objections at trial if the ophthalmologist is not present to testify. Neither the State nor the Defense should go to trial on a child death case without the assistance of an expert. These cases center on expert testimony. This does not necessarily mean your expert will testify at trial or that the case will go to trial. You need an expert to help you understand the medical records so you can counsel your client to make intelligent and informed decisions about his case. Lawyers are not doctors nor should we be expected to be. There is always at least something helpful the medical expert can provide. With that said, do not rely solely on the expert. Do as much reading and research into the specific medical issue as possible. Understanding what is normal and not normal for the specific medical finding(s) in the case can make a huge difference. To be helpful, the expert needs the benefit of all of the medical records. It is good practice to always send the whole case file to the expert so that you can receive a credible opinion and your expert will not be blindsided. The expert must know the worst parts of your case. If a client runs out of money to hire an expert, regardless of whether it is a retained or appointed case, the defense attorney can request funding for expert from the court. Failing to do so has been determined to be ineffective assistance. Ex Parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) (injury to a child case). Remember to request pretrial expert hearings to test the experts’ qualifications and basis of knowledge and to find out what ultimate opinions they plan on offering. Never assume that the expert is qualified. As a practice point, if an attorney is afforded a pretrial qualification hearing as opposed to a hearing outside the presence of the jury, then request a transcript of the hearing prior to trial for use during trial. Requesting pretrial qualification hearings in child injury cases is important because the medical testimony is key and there are typically several experts. The basis for your request is one of judicial efficacy — there is no need for the jury to go back and forth over and over in the middle of trial versus having a day of qualifications hearings prior to trial. As further basis for this request, consider that you will not be able to be as effective if forced to do the expert hearing midtrial.
Conclusion The mere thought of violence toward children makes these cases and the accused vulnerable to wrongful conviction and inflated punishment. A defense attorney’s understanding of how the injuries occurred, getting full timeline of events, and obtaining records and experts will “win” the day. Please contact me if you need to brainstorm a case or would like to share information on this topic. The more we learn from each other, the more likely a wrongful conviction will be prevented.
Angela Weltin angelaweltin@gmail.com 832.244.7633
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Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Breaking Bad: Experts & Labs
Speaker:
Janine Arvizu, CQA 505.250.7422 phone Janine.arvizu@gmail.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Discoverable Materials Lists – Controlled Substances (Qualitative Analysis) Materials from the agency(ies) responsible for sample collection and transportation: a. All field records related to evidence collection and ambient environmental conditions* b. Relevant training records for field personnel, including training materials c. Diagrams, descriptions, or photographs of evidence at all stages: collection, packaging, storage, and transportation* d. Case intake and evidence control records (e.g., custody records from collection through submission to the laboratory, property records, laboratory analysis request forms, evidence inventory forms, shipping receipts)* e. Records related to field screening (if performed), including manufacturer, model, lot number, expiration date, contents, and performance specifications of field kit; include photographs of observations, if available* Materials from each laboratory responsible for testing: NOTE: Manuals and procedures provided should be the versions that were in effect at the time of the subject work 1) Laboratory Quality Manual (however named, documentation of the laboratory’s quality policies and quality system)* 2) Laboratory Protocols (i.e., prescribed minimum testing for identification of a particular compound or class of compounds)* 3) Laboratory technical procedures (Standard Operating Procedures, however named) for each method used to test the subject evidence, including: screening, qualitative identification, and determination of net weight* 4) Laboratory Quality Procedures (however named; implementing procedures for the quality program. e.g., internal audit, training and qualification, contamination control, record management, etc.)* 5) Records of communication between the laboratory and its accrediting agency during the accreditation period spanning the date of the subject testing 6) Floor plan of the laboratory facility, with functional areas identified (e.g., evidence storage, sample preparation, analytical instrumentation, standard preparation, analyst offices) 7) Number of qualified laboratory staff members assigned to controlled substance testing at the time the subject work was performed, and production data for each analyst during the year that included the subject testing (e.g., number of controlled substance cases/samples received and reported by each analyst, each month) *if only limited materials are available, these are the most important
8) Inventory of laboratory capital instrumentation (manufacturer/make/model) in use during the year of the subject testing 9) Internal audit reports and external assessment surveillance reports during the four year period ending with the year of the subject testing* 10) Evidence sampling procedure (as appropriate to the subject case): criteria for determination of sample population, development of statistical or non-statistical sampling plan, methods for assessment and achievement of homogeneity, sample reduction practices, and documentation of sampling events and decisions* 11) Case intake and evidence control records (field-to-lab custody transfers, intra- and interlaboratory chain of custody, evidence receipt log, assignment of laboratory identifiers to items and sub-items)* 12) All sampling and test item preparation records for the subject evidence 13) Statement of Qualifications or résumé for each analyst with responsibility for the subject testing (including preparation technicians and technical reviewers)* 14) Internal and external proficiency records (actual and reported results, and relevant records, data, and correspondence) for each responsible analyst and each method used on the subject case, for four years ending with the year of the subject testing 15) Records demonstrating the qualifications and competence of the responsible analyst(s) and technical reviewer in the subject case; include employment applications, academic transcripts, disciplinary files, training records, and personnel files (personal information may be redacted)* 16) Report(s) issued by the laboratory (including amended or supplemental reports and records of informal verbal reports, as appropriate)* 17) Records of internal and external communication related to the subject case, including conversation logs, internal correspondence, or any other records 18) Record of the current disposition of each item of evidence submitted for seized drug analysis from the subject case; * 19) Method validation records for each method used to analyze the subject evidence (i.e., copy of the complete validation file, including plan, data, results, and conclusions); if the laboratory relies on external validation, include reference, and in-house verification records* 20) Bench notes, log books, and any other records pertaining to case samples or instruments; including records of non-instrumental analyses of case samples and associated controls* 21) Records documenting observations, diagrams, notations, or measurements regarding case samples or testing*
*if only limited materials are available, these are the most important
22) Records documenting any deviations from the laboratory’s approved Standard Operating Procedures or Quality Manual that occurred during testing of the subject case samples 23) Instrument run logs or sequences for each instrument(s) used to analyze case samples on each day(s) case samples were tested (including identification of all unknown samples and associated controls)* 24) Instrument tuning and evaluation records (e.g., MS tune records, IR resolution checks) applicable to the subject testing, for each analytical instrument used * 25) Source, preparation and analysis records for each reference material used for qualitative identification or quality control in the subject testing (including unique identifications, origins, dates and details of preparation and analysis, composition, supplier certifications, shelf lives of parent and stock solutions)* 26) Verification records for each reference material used in relation to the subject testing* 27) Procedure for generation, maintenance and use of spectral library(ies), as used for qualitative identification or confirmation in the subject case* 28) For each instrument(s) used in the subject case, maintenance and repair records for the year ending with the subject testing 29) Source, preparation, and usage records for reagents and materials used during testing 30) Control charts used to monitor instrument or method performance during the period in which case samples were processed 31) Instrumental data generated during analysis of case samples and all associated controls, including any data excluded or not reported* 32) Record of user-defined instrument conditions and operating parameters for data acquisition and analysis during testing of the subject evidence 33) Records documenting the characteristic(s) and criteria used for qualitative identification of each reported controlled substance(s) 34) Nonconformance reports (however named) and corrective action records for issues related to seized drug analysis, during the accreditation period that included the subject testing* 35) Records of the scope and performance of internal independent reviews (technical and administrative) of case results 36) Documentation of plans and results of contamination control surveys for species relevant to test methods used in the subject case*
*if only limited materials are available, these are the most important
Discoverable Materials Lists – Controlled Substances (Quantitative Analysis) Materials from the agency(ies) responsible for sample collection and transportation: a. All field records related to evidence collection and ambient environmental conditions* b. Relevant training records for field personnel, including training materials c. Diagrams, descriptions, or photographs of evidence at all stages: collection, packaging, storage, and transportation* d. Case intake and evidence control records (e.g., custody records from collection through submission to the laboratory, property records, laboratory analysis request forms, evidence inventory forms, shipping receipts)* e. Records related to field screening (if performed), including manufacturer, model, lot number, expiration date, contents, and performance specifications of field kit; include photographs of observations, if available* Materials from each laboratory responsible for testing: NOTE: Manuals and procedures provided should be the versions that were in effect at the time of the subject work 1) Laboratory Quality Manual (however named, documentation of the laboratory’s quality policies and quality system)* 2) Laboratory Protocols (i.e., prescribed minimum testing for identification of a particular compound or class of compounds)* 3) Laboratory technical procedures (Standard Operating Procedures, however named) for each method used to test the subject evidence, including: screening, qualitative identification, and determination of net weight* 4) Laboratory Quality Procedures (however named; implementing procedures for the quality program. e.g., internal audit, training and qualification, contamination control, record management, etc.)* 5) Records of communication between the laboratory and its accrediting agency during the accreditation period spanning the date of the subject testing 6) Floor plan of the laboratory facility, with functional areas identified (e.g., evidence storage, sample preparation, analytical instrumentation, standard preparation, analyst offices) 7) Number of qualified laboratory staff members assigned to controlled substance testing at the time the subject work was performed, and production data for each analyst during the year that included the subject testing (e.g., number of controlled substance cases/samples received and reported by each analyst, each month) *if only limited materials are available, these are the most important
8) Inventory of laboratory capital instrumentation (manufacturer/make/model) in use during the year of the subject testing 9) Internal audit reports and external assessment surveillance reports during the four year period ending with the year of the subject testing* 10) Evidence sampling procedure (as appropriate to the subject case): criteria for determination of sample population, development of statistical or non-statistical sampling plan, methods for assessment and achievement of homogeneity, sample reduction practices, and documentation of sampling events and decisions* 11) Case intake and evidence control records (field-to-lab custody transfers, intra- and interlaboratory chain of custody, evidence receipt log, assignment of laboratory identifiers to items and sub-items)* 12) All sampling and test item preparation records for the subject evidence 13) Statement of Qualifications or résumé for each analyst with responsibility for the subject testing (including preparation technicians and technical reviewers)* 14) Internal and external proficiency records (actual and reported results, and relevant records, data, and correspondence) for each responsible analyst and each method used on the subject case, for four years ending with the year of the subject testing 15) Records demonstrating the qualifications and competence of the responsible analyst(s) and technical reviewer in the subject case; include employment applications, academic transcripts, disciplinary files, training records, and personnel files (personal information may be redacted)* 16) Report(s) issued by the laboratory (including amended or supplemental reports and records of informal verbal reports, as appropriate)* 17) Records of internal and external communication related to the subject case, including conversation logs, internal correspondence, or any other records 18) Record of the current disposition of each item of evidence submitted for seized drug analysis from the subject case; * 19) Method validation records for each method (screening, confirmatory, and quantitative) used to analyze the subject evidence (i.e., copy of the complete validation file, including plan, data, results, uncertainty and conclusions); if the laboratory relies on external validation, include reference, and in-house verification records* 20) Bench notes, log books, and any other records pertaining to case samples or instruments; including records of non-instrumental analyses of case samples and associated controls* 21) Records documenting observations, diagrams, notations, or measurements regarding case samples or testing*
*if only limited materials are available, these are the most important
22) Records documenting any deviations from the laboratory’s approved Standard Operating Procedures or Quality Manual that occurred during testing of the subject case samples 23) Instrument run logs or sequences for each instrument(s) used to analyze case samples on each day(s) case samples were tested (including identification of all unknown samples and associated calibrators and controls)* 24) Instrument tuning, calibration, and evaluation records (e.g., MS tune records, IR resolution checks, calibration and verification) applicable to the subject testing, for each analytical instrument used * 25) Source, preparation and analysis records demonstrating the traceability of each reference material used for calibration or quality control in the subject testing (including unique identifications, origins, dates and details of preparation and analysis, composition, supplier certifications, shelf lives of parent and stock solutions)* 26) Verification records for each internally prepared reference material used in relation to the subject testing* 27) Procedure for the acquisition, storage, handling, and use of reference materials 28) Procedure for generation, maintenance and use of spectral library(ies), as used for qualitative identification or confirmation in the subject case* 29) For the accreditation period that includes the subject testing, maintenance records for each analytical instrument (e.g., GC, MS, LC, FTIR, spectrophotometer, etc.) and measurement equipment (e.g., analytical balance, pipette, diluter) used in support of the subject testing 30) Source, preparation, and usage records for reagents and materials used during testing 31) Calibration and verification records for volumetric and gravimetric equipment used in the subject testing (e.g., pipettes, diluters, volumetric flasks, analytical balances) and calibration records for reference standards (e.g., standard masses) 32) Control charts used to monitor instrument or method performance during the period in which case samples were processed 33) Analytical sample preparation records (e.g., dilution, extraction, derivatization, etc.) for the subject samples and all associated calibrators and controls 34) Instrumental data generated during analysis of case samples and all associated controls, including any data excluded or not reported* 35) Record of user-defined instrument conditions and operating parameters for data acquisition and analysis during testing of the subject evidence 36) Records documenting the characteristic(s) and criteria used for qualitative identification of each reported controlled substance(s)
*if only limited materials are available, these are the most important
37) Nonconformance reports (however named) and corrective action records for issues related to seized drug analysis, during the accreditation period that included the subject testing* 38) Records of the scope and performance of internal independent reviews (technical and administrative) of case results 39) Documentation of plans and results of contamination control surveys for species relevant to test methods used in the subject case*
*if only limited materials are available, these are the most important
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
The Killing Fields: Murder and How to Defend It Speaker:
Lisa Greenberg
Law Office of Lisa Greenberg 622 S Tancahua St Corpus Christi, TX 78401 361.446.2476 phone 361.288.3476 fax lisagreenberglaw@gmail.com email https://lisagreenberglaw.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Cannabis Defense in Texas A Crash Course Speaker:
Chris Self
Public Defender 7911 Goldengrove Drive Houston, TX 77379 713.274.6942 phone 713.583.4405 fax chris.self@pdo.hctx.net email
Co-Author: Daniel Mehler
Mehler Cannabis Law 909 NE Interstate 410 Loop Ste. 500 San Antonio, TX 78209 888.367.3420 phone lawoffice@mehlercannabis.com email https://mehlercannabis.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
CANNABIS DEFENSE IN TEXAS – A CRASH COURSE Chris Self & Daniel Mehler
Background: The Farm Bill By this point, we all are familiar with the changes in law prompted by the Federal Farm Bill, which was later adopted by an Act of the Texas Legislature. But for the purposes of the foundation of this paper, a brief recap follows. Texas is a jurisdiction that has legalized Cannabis Sativa L, provided that it does not contain more than 0.3% tetrahydrocannabinol (“THC”). TEX. HEALTH & SAFETY CODE § 481.002(26)(F) (West 2022) (citing TEX. AG. CODE § 121.001). In keeping with the definitions under federal law,1 Texas has categorized the legal strains of the plant Cannabis sativa L with below 0.3% THC as “hemp.”2 The plant Cannabis sativa L containing greater than 0.3% THC is defined as “marihuana,” and remains a controlled substance. 3 Despite these legal distinctions, however, there is no botanical difference between Cannabis sativa L strains with high and low- to no-THC concentration. Although there are pending cannabis law bills to be discussed infra, the current state of the law that has prompted a sea change in the way we practice starts here. 4
7 U.S.C.A. § 1639O(1), known as the “2018 Farm Bill.” TEX. AG. CODE § 121.001. 3 TEX. HEALTH & SAFETY CODE § 481.002(26)(F). 4 Because these materials were prepared in April of 2023, the operative law may have changed by the time you read this. 1 2
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Challenging Odor-based Oppression When fighting for suppression of evidence, the favorable cases that we defense attorneys most often cite share one common thread: a well-developed record in the lower court. Now that we know the fundamentals in the changes to cannabis law, the next step is to develop the factual record in our cannabis cases beyond the street level. We must take it to the molecular level. THC as a molecule is both odorless and tasteless.
The phytochemicals
responsible for the odor and flavor of all cannabis strains—both “hemp” and “marihuana” alike—are terpenes.5 Because “hemp” and “marihuana” have the same terpenes, the odor itself does not necessarily indicate the presence of an illegal substance and therefore is insufficient on its own to support probable cause.6 Co-author of this article, Daniel Mehler7, can testify to establish these scientific facts to aid our courts in properly applying the statutory changes in a way that supports our constitutional arguments.
Andre, C.M., Hausman J.F., Guerriero, G. Cannabis Sativa: The Plant of the Thousand and One Molecules, FRONTIERS IN PLANT SCIENCE, Vol. 7, issue 19 (2016) available online at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4740396/ (last accessed on Aug. 3, 2020). 6 Wilson, Mark D. Law and Odor: Police hazy on how to use drug-sniffing dogs under Texas hemp law, Austin American-Statesman, Statesman.com (Jul. 12, 2019) available online at https://www.statesman.com/news/20190712/law-and-odor-police-hazy-on-how-touse-drug-sniffing-dogs-under-texas-hemp-law (last accessed on Aug. 3, 2020). 7 mehlercannabis.com. 5
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OFFICERS’ DETECTION OF CANNABIS BY ODOR AND SIGHT Recent scholarship by our members has identified the litany of decisions which signed the blank check for police officers to search a vehicle based on the subjective claim of detection of cannabis odor by an officer. 8 However, the State won these cases by establishing a factual record using the then-applicable law. In Moulden v. State, for example, the officers testified that they knew the smell of burnt marihuana from previous experience and detected it during a traffic stop for speeding. 576 S.W.2d 819, 819 (Tex. Crim. App. 1978). At that time, Cannabis sativa L was illegal in all forms. The Moulden court analogized the detection of cannabis odor during the traffic stop to another case in which an experienced narcotics officer detected the “strong odor of opium which to them was distinctive and unmistakable.” Johnson v. U.S., 333 U.S. 10, 12 (1948). The court found probable cause to search, echoing its prior summation that “[p]robable cause for a search exists where the facts and circumstances within the knowledge of the officer on the scene and of which he has reasonably trustworthy information would lead a man of reasonable caution and prudence to believe that he will find the instrumentality of a crime or evidence pertaining to a crime.” Moulden, 576 S.W.2d at 819 (quoting Brown v. State, 481 S.W.2d 106, 110 (1972)).
Donald H. Flanary, III; and Amanda I. Hernandez, Defending Cannabis Cases: What Do We Know? VOICE FOR THE DEFENSE, Vol. 52: No. 3, p. 23, Texas Criminal Defense Lawyers Association (TCDLA) (April 2023). 8
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Taken at face value, Moulden stands for the simple proposition that marihuana odor equals probable cause to search. What Moulden and its progeny truly stand for is that an officer’s detection of a distinct and unmistakable odor of contraband in a small, enclosed space is reasonably trustworthy information supportive of probable cause that someone has consumed the contraband in that space.9 See Parker v. State, 206 S.W.3d 593, 597, n. 11 (Tex. Crim. App. 2006) (posing hypothetical that odor of cannabis in the Astrodome does not support probable cause to arrest everyone in the Astrodome or in a particular section thereof). Prior to 2019, all cannabis was the instrumentality of or evidence pertaining to a crime; and the law was simple enough to deem an officer’s knowledge of a plant’s mere odor sufficient. Times have changed. Historically, by introducing evidence of the officer’s training and experience with contraband cannabis, the State was able to establish that the officers smelled a distinct odor or viewed a distinct plant which the officers knew was contraband. Over time, this created a precedent so well-established as to call for minimal legal analysis in substantive decisions. See, e.g.: Jordan v. State, 394 S.W.3d 58 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (“[t]his [c]ourt has, in fact, held that the odor of [marijuana] alone
Occasionally, an officer will become so bold as to claim that he is trained to detect substances with less distinct or uniform odors than cannabis, such as cocaine, which reviewing courts have upheld. State v. Lloyd, 263 P.3d 557 (Ut. 2011) (officer claimed crack cocaine had “cat urine” smell); Milburn v. State, Nos. 14-12-01059-CR, 14-1201060-CR, 2014 WL 2048415 (Tex. App.—Houston [14th Dist] 2014, no pet.) (search based on strong odor of cocaine). 9
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is sufficient to constitute probable cause to search a defendant’s person, vehicle, or objects within the vehicle”) (internal quotes and citations omitted). We should take a lesson from this. Our next move as the defense bar should be to present evidence in suppression hearings to rebut the reliability of the officer’s claim that he can detect contraband cannabis by smell or by sight. Cross-examination of the officer himself as to his ability to distinguish between contraband and non-contraband cannabis is a good start, but the common challenges with officer testimony will remain. An experienced officer will either: (1) change from the jack-of-all-trades that he was on direct examination to acting-brand-new on cross-examination on topics that he now claims are outside of his wheelhouse; or (2) attempt to spout out additional facts such as furtive gestures to support the finding that client appeared to be in possession of contraband. The record in the court of appeals will seldom illustrate this less-thanforthright presentation of an officer that we often observe in the courtroom. In lieu of depending on officer testimony, defense expert testimony about the makeup of cannabis can establish as a factual matter for the record that “hemp” and “marijuana” are botanically identical by both smell and sight. This undermines both the reliability of the officer’s opinion and the finding that the officer detected per se contraband. Testimony and exhibits demonstrating the recent proliferation and market saturation of legal hemp and hemp product dispensaries in Texas help to further the proposition that an officer is now more likely to encounter legal hemp than illegal marijuana. Make a record that supports the common-sense argument that a black 5
market product like marijuana is going to be less prevalent than a mass market product like hemp. This is how we show that the sight and odor of cannabis flower no longer supports even the low burden of probable cause. Depending on the facts of the case, it may be wise to ready your cannabis defense expert and conduct a soft cross-examination of the officer that does not attempt to undermine his ability to detect contraband cannabis. Police and prosecutors have grown accustomed to prevailing on cannabis detection alone. Sometimes, the officer appears to rely only on the odor or sight of cannabis flower even where other facts not yet stated on direct examination would support probable cause to search (or reasonable suspicion for Terry v. Ohio purposes). For example, the first such suppression hearing I conducted on similar grounds involved a call for burglaries of cars in a motel parking lot and a client who made “furtive gestures” throughout the encounter. 10 These additional facts supported probable cause to search for items other than those detected by odor. Another example is a pending case in the First Court of Appeals wherein the accused was also the subject of a pending DWI investigation and attempted to conceal and destroy the cannabis flower once the officer noticed it in a pill bottle.11 Be prepared to find ways to neutralize other facts that would independently justify a search in case they arise. For example, when an officer volunteers information that was absent in his report, impeach the officer by highlighting the omission: 10 11
We waived our right to appeal for a time-served plea bargain, so no citation exists. State v. Boatwright, case no. 01-21-00571-CR (Tex. App.—Houston [1st Dist.] 2023). 6
TCDLA Warrior: Officer Barbrady, you mentioned on direct examination that Ms. Jones appeared nervous, sweaty, and reached inside her bra as if to conceal contraband? Officer Barbrady: Yes. TCDLA Warrior: You also mentioned on direct examination that you have been a peace officer for 8 years? Officer Barbrady: Yes. TDCLA Warrior: During those 8 years, you have written numerous offense reports? Officer Barbrady: Yes. TCDLA Warrior: You use those reports to help you remember what happened and to refresh before testifying? Officer Barbrady: Yes. TCDLA Warrior: It is important to put as much information in your report as possible, and not to leave out important facts? Officer Barbrady: Yes. TCDLA Warrior: In your report, you did not mention Ms. Jones being nervous and sweaty? Officer Barbrady: Yes [if not, impeach or refresh as needed]. TCDLA Warrior: In your report, you did not mention Ms. Jones reaching into her bra? Officer Barbrady: Yes [if not, rinse and repeat]. RETIRING THE DOGS Amidst the gradual repeal of cannabis prohibition in the United States, there remain a number of drug dogs in jurisdictions where some or all cannabis flower is legal 7
who are still trained to detect cannabis flower. These dogs and their handlers are subject to challenge, but expert testimony about both the dogs and the molecular structure of cannabis itself is required to build the proper record. The use of drug dogs in establishing probable cause can often prove to be unreliable.12 The attorney can establish the absence of probable cause or reasonable suspicion because dogs alert to all kinds of smells, even from entirely legal sources of those smells. 13 The dogs are not trained to signal their detection of different substances in different ways, and therefore do not have the language to express the distinction. Although a canine “sniff test” does not constitute a Fourth Amendment “search”14 absent other circumstances,15 that unprotected categorization is reserved only for “a well-trained narcotics detection dog” that “does not expose non-contraband items that otherwise would remain hidden from public view.”16 It therefore follows that a canine sniff that detects non-contraband items is a “search” and must be supported by probable cause. See People v. McKnight, 446 P.3d 397 (Co. 2019) (holding sniff by canine trained to detect marijuana—legal in Colorado—was a “search” under the Constitution). Likewise, where a “sniff” reveals the presence of non-contraband items or circumstances otherwise suggest that the dog is unreliable, the “sniff” may not be “up to snuff” and not supportive of probable cause. Florida v. Harris, 568 U.S. 237, 248 (2013) (reasoning that each canine and handler should be evaluated on an individual basis to determine reliability). Indeed, the infallible dog is a creature of legal fiction.
Jeff Weiner, Police K-9s and the Constitution: What Every Lawyer and Judge Should Know, THE CHAMPION, National Association of Criminal Defense Lawyers (NACDL) (April 2012): 22 – 31; Rick Cofer & Megan Rue, Is the Sniff (Still) Up to Snuff? VOICE FOR THE DEFENSE, Vol. 52: No. 3, p. 17, Texas Criminal Defense Lawyers Association (TCDLA) (April 2023). 13 Id. 14 U.S. v. Place, 462 U.S. 696 (1983). 15 Florida v. Jardines, 569 U.S. 1 (2013). 16 Place, 462 U.S. at 707. 12
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Illinois v. Caballes, 543 U.S. 405, 411 (2005) (Souter, J. dissenting); see also Doe v. Renfrow, 475 F.Supp. 1012 (N.D. Ind. 1979) (unlawful strip search of minor child after false alert during canine search at school, where it was later discovered that the child’s own dog was in heat). In jurisdictions where cannabis is even partially decriminalized, more than its mere odor is required for probable cause to search or detain. Lewis v. Maryland, 233 A.3d 86 (Md. 2020) (holding that more than the odor of marijuana is required for probable cause to arrest a person and conduct a search incident thereto, where low quantities of marijuana were decriminalized). Here in the trenches, we must obtain the training records for the dogs, elicit expert testimony from the handlers about the fact that they are trained to detect cannabis, and that the dogs give the same signal (either sitting or jumping, depending on the dog) for all substances. The National Narcotics Detector Dog Association (“NNDDA”) based in Carthage recently changed its training requirements for dogs in Texas. As recently as 2020, NNDDA had a requirement that canines detect marijuana and cocaine at minimum to be certified. 17 At that time, NNDDA had a separate set of requirements for “marijuana/hemp-legal states only,” 18 but research and investigation has revealed that NNDDA continued to train some Texas dogs to detect cannabis even after hemp was decriminalized. Presently, NNDDA employs one uniform standard for dogs, eschewing cannabis as one of the required substances but still allowing handlers and their respective agencies to elect for cannabis detection.19 Investigation in each Narcotic Detection Standard-20, NATIONAL NARCOTIC DETECTOR DOG ASSOCIATION (NNDA) (2020) (“All K-9’s (sic) must find marijuana and cocaine to certify. Other narcotics can be hidden but they are optional.”). 18 Narcotic Detection Standards for Marijuana/Hemp-Legal States Only-M20, NATIONAL NARCOTIC DETECTOR DOG ASSOCIATION (NNDA) (2020). 19 Narcotic Detection Standard-22, NATIONAL NARCOTIC DETECTOR DOG ASSOCIATION (NNDA) (2022) (“All K-9’s (sic) must find cocaine and at least one other narcotic to certify. Other narcotics may be, but are not limited to Marijuana, Heroin, Methamphetamine, or Opium.”). 17
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individual case will inform the attorney as to the dog’s credentials and whether the dog is trained to detect non-contraband items, such as cannabis flower. Such information is necessary fodder for cross-examination of the handler. Just as with cases involving an officer’s free air sniff, we must present experts to develop the record on legal cannabis flower and its identical odor to illegal cannabis flower.
Laboratory Reports Even in counties that are prosecuting possession of cannabis and cannabis products, the proof may not be there where the available laboratory testing is not adequate to indicate the THC levels. Gas Chromatography / Mass Spectrometry Testing involves the use of heat, which can cause chemical reactions in the sample that artificially inflate the reported THC content. 20
In spite of the somewhat increased reliability of Liquid
Chromatography / Mass Spectrometry Testing, 21 labs across the state are continuing to apply GC/MS testing. Labs acknowledge that they cannot accurately gauge the levels to determine whether the substance is contraband or non-contraband cannabis using GC/MS as their method. Take, for example, the following excerpts from lab reports involving cannabis flower: Meng Q, Buchanan B, Zuccolo J, Poulin M-M, Gabriele J, Baranowski DC (2018), A reliable and validated LC-MS/MS method for the simultaneous quantification of 4 cannabinoids in 40 consumer products, PLOS ONE 13(5): e0196396. https://doi.org/10.1371/journal. pone.0196396 (last accessed on April 29, 2023). 21 Id. 20
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Figure 1 - Cannabis flower lab report from TX DPS
Figure 2 - THC Oil Lab Report from TX DPS
Figure 3 - THC Oil Lab Report from TX DPS
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Figure 4 - Cannabis Flower Lab Report from Harris County Institute of Forensic Sciences
These reports acknowledge that the analyst cannot identify the vegetable substance as “marihuana” or the products derived therefrom as having illegal levels of THC. Even if the analysts’ testimony survived a Kelly 22 challenge, the weight of their testimony would not be sufficient to convict. In counties where pure cannabis flower cases are scarcely—if ever—prosecuted, some younger prosecutors have not seen many lab reports analyzing the substance. A brief discussion with the prosecutor in the case with the above lab report explaining the significance of THC levels resulted in a dismissal. In cases where the officer bases a search on the sight or smell of cannabis that is later seized, but bases the arrest and charge on another contraband item, e.g. a pistol or methamphetamine, the seized cannabis is seldom submitted for laboratory testing. This creates two arrows for our quiver: (1) a Kelly challenge that the officer’s opinion testimony is unreliable in that the officer’s theory that he smelled/saw contraband cannabis was not validated by a laboratory test; and (2) ammunition for crossexamination in the suppression hearing about the fact that the officer still does not know whether he saw or smelled an illegal substance.
22
Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992); TEX. R. EVID. 702 et seq. 12
Cannabis and Intoxication Offenses While Cannabis use has been shown in a multitude of studies to impact driving performance, that is, perhaps, its only similarity to driving under the influence of alcohol. The primary contrast between THC blood concentration and impairment and blood alcohol concentration and impairment lies in the nature of THC itself. THC moves throughout the body in a complex manner due to its complex pharmacology. Different tissues, blood and brain are physically separated from each other by the blood-brain barrier, a sophisticated set of capillaries that protect the brain from toxic substances. When it comes to alcohol, the concentration of alcohol in the brain can be inferred from alcohol in the blood since alcohol is highly water-soluble. Its solubility allows it to evenly disperse throughout the blood stream. Estimating brain concentration/impairment with THC, on the other hand, is quite challenging because THC is lipophilic. Additionally, peak plasma concentrations occur immediately after ingestion and rapidly dissipates despite intoxication persisting for an extended period of time. As a result, the figures provided by blood tests are not reflective of present intoxication or recency of use. Instead, such tests are only reflective of prior use. In an effort to detect and arrest individuals driving under the influence of drugs, the Los Angeles Police Department created in the 1970s the first DRE program.
13
DREs have proven to be highly reliable in identifying drivers impaired by alcohol. However, their efficacy in identifying cannabis impaired drivers is questionable at best, as demonstrated across a variety of studies, including a 2016 study for the AAA Foundation for Highway Safety. Data from two sources were evaluated: • “602 drivers arrested for impaired driving in which only THC was present, along with a sample of 349 drug-free controls, in which full records of the subjects’ performance in the DRE exam were available.” • “4,799 drivers arrested for impaired driving who tested positive for one or more cannabinoids (THC, hydroxy-THC, and carboxyTHC),
and
for
which
demographic
information
and
comprehensive toxicology testing results were available.” The study concluded that a quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported. The DRE examination is a 12-step protocol that is fraught with opportunities for the practitioner to make mistakes. Below is a helpful list of questions to challenge a DRE’s qualifications and administration. 1. Does the DRE have medical training to assess a suspect’s physiological symptoms? 14
2. What training does the DRE have in distinguishing the effects of drugs from other medical conditions?
3. How well did the DRE do in the training course and what continuing education has the DRE had?
a. Note: International Association of Chiefs of Police standards require recertification every two years.
4. How many substances did the officer incorrectly identify on their DRE qualification test?
5. What is the DRE’s track record? a. Note: DREs are required to maintain a progress log and a rolling log of all DRE evaluations which they have conducted.
6. Did the DRE deviate from the protocol? a. Note: The protocol requires measurement of the suspect’s blood pressure and temperature twice; pulse three times; dark room exam of the suspect’s eyes; exam of skeletal muscle tone; and a toxicological examination.
b. Note: The protocol requires the DRE’s opinion be based on the complete administration of all 12 steps.
7. What is the minimum number of indicators the DRE needs to reach an opinion on impairment? Does the DRE believe there is a standard set by the program, or does the DRE determine their own minimum?
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8. Does an opinion that the suspect is affected by drugs mean the Defendant has lost the use of their normal faculties? Finally, it’s imperative that we be familiar with Marijuana Impaired Driving, a report to Congress, which was released by the National Highway Traffic Safety Administration in July of 2017.23
Cannabis use and Probation Have you ever had a client pick up a new case while on probation? Have you ever, when the prosecutor realized that the new case was bogus, had the prosecutor tell you that he/she would just “prove up the technical violations” to send your client to prison on the probation revocation? Have you ever felt like that was chicken shit? First things first, the actual language in your client’s probation conditions will determine the rules. If your client has a drug prohibition condition like this, he/she is allowed to use legal cannabis products:
Figure 5 - Probation Condition
However, when your client submits to urinalysis and the results indicate that he is “positive” for THC, the challenge becomes: (1) blocking the laboratory report; (2) Marijuana-Impaired Driving | A Report to Congress, U.S. DEPT. OF TRANSP., NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION (July 2017), available online at https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/812440-marijuanaimpaired-driving-report-to-congress.pdf (last accessed on May 1, 2023). 23
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undermining the analyst’s qualifications to eliminate his/her testimony; and (3) when all else fails, explaining to the court that the tests results mean nothing in terms of proving illegal drug use. As with trial, a hearing on a revoke probation is judicial and not administrative, and a probationer is therefore entitled to many of the same due process safeguards under the United States and Texas Constitutions as he would be at trial. See Ex Parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012). Case in point, the rules of evidence and exclusionary rule apply in such hearings. Id. at 210. STEP ONE: BLOCK THE LAB REPORT The laboratory report will often be included in the probation department’s file, which the prosecutor will often try to authenticate wholesale through probation personnel. However, just because the file is authenticated does not mean that its contents are not objectionable for other reasons. Since Doan, there is an emerging trend among the Courts of Appeal to acknowledge that the Confrontation Clauses to the U.S. and Texas Constitutions apply in revocation hearings and hearings on motions to adjudicate. See, e.g., Hughes v. State, 651 S.W.3d 461 (Tex. App.—Houston [14th Dist.] 2022, pet. granted) (confrontation clause applied to probation revocation hearing); Blackman v. State, No. 01-1-00525-CR, 2014 WL 50804 at *3 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014, pet. ref’d) (“[…] for the purposes of this opinion, we will assume without deciding, that a defendant can 17
raise a Confrontation Clause objection in a community-supervision revocation proceeding”); Bacilio v. State, No. 08-14-0096-CR, 2016 WL 1253420 at *3 (Tex. App.— El Paso Mar. 30, 2016, pet. ref’d); Torres v. State, 617 S.W.3d 95, 112-13 (Tex. App.— Houston [1st Dist.] 2020, pet. refd) (Keyes, J., concurring) (“[…] if there were any lingering doubt as to whether minimal constitutional due process guarantees— including the Sixth Amendment right ‘to confront and cross-examine adverse witnesses’—apply to revocation proceedings, the Court of Criminal Appeals has, since Doan, made it clear that they do”). Because our clients have not yet been finally convicted and sentenced at this stage, our clients maintain these rights even at the revocation hearing. This confrontation right and due process protection extends to the analysis of physical evidence, i.e. toxicology drug testing. Bullcoming v. New Mexico, 564 U.S. 647 (2011). Additionally, statutory safeguards against unreliable analysis apply to probation revocation cases. Hargett v. State, 472 S.W.3d 931 (Tex. App.—Texarkana 2015, no pet.) (citing TEX. CODE. CRIM. PROC. art. 38.35 (West 2021)) (“[b]ecause Article 38.35 defines a criminal action to include ‘punishment, or other matter related to conduct proscribed by a criminal offense,’ we find that it applies to community supervision revocation proceedings”). Although the definition of “forensic analysis” specifically carves out a “presumptive test performed for the purpose of determining compliance with a term of community supervision[,]” it does not expressly exclude the confirmatory test 18
needed to prove non-adherence to a condition by a preponderance of the evidence. TEX. CODE. CRIM. PROC. Art. 38.35(a)(4)(E) (West 2023) (emphasis added). Additionally, “a person may not act or offer to act as a forensic analyst,” including one who interprets a forensic analysis for a court, “unless the person holds a forensic analyst license.” Id. art. 38.01(Sec. 4-a)(b). Hargett rejected the admission of urinalysis testing results from a non-accredited lab in a community supervision revocation hearing. 472 S.W.3d at 934-35. More and more, counties are outsourcing these tests to private labs. Some of the labs are out of state, creating a Bullcoming objection to admission of the lab analyst’s report when the government chooses not to undertake the expense of flying down the analyst. Whether or not the lab in your case is accredited, the burden is on the government to first prove that accreditation before presenting analyst testimony. The same is true of licensure. The confrontation clause, hearsay rule, and Articles 38.01 and 38.35 together create four lines of defense against this testimony. STEP TWO: KELLY/DAUBERT/702 ET SEQ. CHALLENGES TO THE ANALYST Because of the Farm Bill and Texas’s adoption of its definitions to partial decriminalization, many products with some THC content are perfectly legal. As mentioned above, lipophilic THC molecules accumulate quickly and eliminate slowly from a body, even long after the psychoactive effect has passed. For these reasons, there are many likely scenarios in which a probationer has routinely used only legal cannabis products with extremely low THC levels which have accumulated in the body, 19
causing the inflated levels in his urinalysis suggest illegal cannabis product use. Central to a proper voir dire examination are pointed questions that highlight the fact that the analyst cannot distinguish between whether the products were contraband or noncontraband, even where THC is present. STEP THREE: ARGUE THAT THE PROOF IS INSUFFICIENT Finally, if the lab analyst gets to testify and/or the report is admitted into evidence, the lab report should not be given sufficient weight to meet the government’s burden to prove non-adherence to conditions. Recent
attempts
at
requesting detailed lab reports with THC levels indicated have yielded little for me.
The labs and
supervision
agencies
accustomed
to
are
providing
conclusory reports with minimal information.
See the following
example: Figure 6 - Urinalysis Lab Report
This report does not indicate the THC levels detected in the sample, only that the analyst detected levels that were above the cut-off. Therefore, it has no probative value 20
to show illegal cannabis use. See also TEX. R. EVID. 401, 403. Note also that the technician’s name is listed on the report and can be cross-referenced with the online database of licensed analysts. Finally, the analyst is based out of St. Louis, Missouri. Depending on your local prosecutor’s budget for bringing urinalysis techs to court, this report is likely a paper tiger. Have your cannabis pharmacology expert ready to testify to explain why this report is not reliable and does not prove non-adherence to conditions, and fight.
Delta-8 THC and THCA DELTA-8 THC Delta-8 THC is a synthetically created isomer of Delta-9 THC. It is created by converting CBD that is most often derived from hemp through a chemical process called “isomerization.” It is also a cannabinoid that exists in hemp, albeit in smaller amounts compared to other cannabinoids. Currently, it is considered a legal derivative or extract of hemp. A recent point of controversy is whether Delta-8 THC is unlawful to possess or sell, where it could be construed as a “synthetic equivalent of the substances contained in the plant.24 The bulk of the commercially-available Delta-8 THC products are TEXAS CRIMINAL DEFENSE LAWYERS ASS’N, Re: Request for an opinion regarding whether the exclusion of “tetrahydrocannabinols in hemp” from the statutory definition of “controlled substance” precludes prosecution of individuals for the possession and sale of delta-8 tetrahydrocannabinol products derived from hemp, Letter to Attorney General W. Ken Paxton, VOICE FOR THE DEFENSE, Vol. 52: No. 3; pp. 14-16, Texas Criminal Defense Lawyers Association (TCDLA) (April 2023). 24
21
“controlled substance analogues,” meaning that they are either: (1) a substance with a chemical structure substantially similar to the chemical structure of a controlled substance[;] or (2) a substance specifically designed to produce an effect substantially similar to, or greater than, the effect of a controlled substance[.]”25 As such, if the government could prove that the Delta-8 THC in a product was synthesized through isomerization, then it could prosecute its possession. 26 However, where some Delta-8 occurs naturally in hemp, products incorporating Delta-8 derived naturally from the legal plant are not illegal to possess.27 It is unclear whether laboratory testing can distinguish between the two. THCA THCA, short for Tetrohydrocannabinolic Acid, is found naturally in cannabis. THCA is the precursor to Delta-9 THC. When THCA is exposed to heat, it undergoes a chemical process, “decarboxylation,” which releases Carbon Dioxide and Delta-9 THC. As the hemp statute clearly references Delta-9 THC, THCA is arguably legal as it is a wholly separate and distinct molecule from Delta-9 THC.
Id. at p. 16 (citing TEX. HEALTH & SAFETY CODE § 481.106(6) (West 2022)). Id. 27 Id. 25 26
22
Collateral Legal Issue - Unlawful Carry and Cannabis Defense Some of us practice in counties where misdemeanor quantities of cannabis flower are not prosecuted. However, we have seen that police are going to do what police do and find charges that prosecutors will accept that are related to the cannabis they find on citizens. One trend we have observed is that of police still charging citizens with unlawful carry where both cannabis and a handgun are in the vehicle. TEX. PEN. CODE § 46.02(a1)(2)(A) (West 2023). The same fundamental trial strategy applies as would the trial strategy to challenge the case as if it were a pure cannabis case. Move to suppress all evidence if grounds exist. Challenge the weight of lab analysis that cannot accurately gauge the level of THC in the cannabis flower or cannabis product. In addition to the trial strategy, however, consider a pretrial challenge to the constitutionality of the statute itself. As many of us are aware, gun control statutes are increasingly vulnerable to facial challenge following N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct. 2111 (2022). Mere months ago, the Fifth Circuit overturned a federal statute 28 prohibiting possession of firearms by someone subject to domestic violence restraining order as violative of the Second Amendment. U.S. v. Rahimi, 61 F.4th 443 (5th Cir. 2023). Just as Mr. Rahimi enjoyed the presumption of innocence and was thereby in the class of
28
18 U.S.C. § 922(g)(8). 23
“the people” that Heller described as “law-abiding, responsible citizens,” the driver with an ambiguous vape oil or aromatic flower in his vehicle should not be deprived of his Second Amendment rights. Rahimi, 61 F.4th at 452 (citing D.C. v. Heller, 554 U.S. 570 (2008)). Some months before Rahimi, the Western District of Texas declared unconstitutional another subsection of the unlawful carry statute,29 reasoning that no historical analogue existed for the prohibition on law-abiding 18-to-20-year-olds carrying a handgun in public for self-defense. Firearms Policy Coalition, Inc. v. McCraw, No. 4:21-CV-1245-P, --- F.Supp.3d ---- (W.D. Tex. 2022). Likewise, few—if any— historical analogues for drug prohibition existed at the time of ratification such that the mere appearance of concurrent drug possession could bar someone from carrying a weapon for protection. For many clients, the potential risk of a vindictive state court prosecutor referring a case to the U.S. Attorney for federal prosecution under the Armed Career Criminal Act is enough to deter them from endeavoring to challenge the constitutionality of the state statute. 18 U.S.C. § 922. However, a client with a clean record who merely had a gun and a bag of cannabis in the car does not have the same exposure. We should encourage these clients to fight their cases on all fronts when their interests would be served by doing so.
29
TEX. PEN. CODE § 46.02(a) (West 2023). 24
Conclusion For the last century, our legislature has woven a complex network of penal laws designed to oppress. Far too many have become ensnared, disenfranchised, and had their lives ruined or even ended in the process. Partial decriminalization of cannabis means more than an incremental step toward full decriminalization. It also means an opportunity for us, the defenders of the Bill of Rights, to seize an opportunity to further tear down the network of oppressive penal laws, even where they are not directly related to cannabis itself. Let’s seize it together.
25
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Fatal Attraction: Family Violence
Speaker:
Clay B. Steadman
Jesko & Steadman 612 Earl Garrett St Kerrville, TX 78028 830.257.5005 phone 830.869.1563 fax CSteadman612@hotmail.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
36th Annual Rusty Duncan Advanced Criminal Law Course
FAMILY VIOLENCE Clay B. Steadman Law Offices of Jesko & Steadman 612 Earl Garrett Kerrville, Texas 78028 Ph.:
(830) 257-5005
Fax:
(830) 896-1563
Email: csteadman612@hotmail.com 1|Page
Fatal Attraction Family Violence Paper 36th Annual Rusty Duncan Advanced Criminal Law Course
Introduction When defending a family violence case, I am sure we have all experienced that overwhelming feeling that we are fighting an uphill battle in a system that is premised upon the presumption of innocence. In preparing your client’s defense against an allegation of family violence, you will at some point have a realization that public opinion suggests that your client is guilty until proven innocent. This is often because of the nature and circumstances in a situation involving an allegation of family violence and the public’s perception regarding the accusation itself. A charge of family violence can be charged and result in your client’s arrest based upon the word of just one individual and depending upon the circumstances, can be substantiated upon the statement of just that same individual. The questions that surround a charge, (i.e.: Why would that person lie? How could a person possibly make something like that up? What is that person’s motive to lie?) often creates this presumption of guilt. Given these circumstances, we still must find a way of changing the narrative of the case and create a situation in trial which will allow us to challenge the basis and motivation of the allegation itself.
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Fatal Attraction Family Violence Paper 36th Annual Rusty Duncan Advanced Criminal Law Course
I. Basics of a Family Violence A family violence allegation has its origin in the Texas Penal Code based upon a charge of assault as committed against a member of their household as defined under the Texas Family Code. The applicable provisions of the Texas Penal Code and Family Code are as follows: Applicable provisions of Texas Family Code. Under § 71.003 Family is defined as: Family includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together. Under § 71.004 Family Violence is defined as: (1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; (2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or (3) dating violence, as that term is defined by Section 71.0021 Under § 71.006 a Member of a Household is defined as: Member of a Household includes a person who previously lived in a household. Applicable provisions of the Texas Penal Code. Assault - Texas Penal § 22.01 (a) A person commits an offense if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. (b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against: 3|Page
Fatal Attraction Family Violence Paper 36th Annual Rusty Duncan Advanced Criminal Law Course
(1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; (2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if: (A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or (B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth; Continuous Violence Against the Family – Texas Penal § 25.11 (a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code. (b) If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a), the exact date when that conduct occurred, or the county in which each instance of the conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a). (c) A defendant may not be convicted in the same criminal action of another offense the victim of which is an alleged victim of the offense under Subsection (a) and an element of which is any conduct that is alleged as an element of the offense under Subsection (a) unless the other offense: (1) is charged in the alternative; (2) occurred outside the period in which the offense alleged under Subsection (a) was committed; or (3) is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (a). (d) A defendant may not be charged with more than one count under Subsection (a) if all of the specific conduct that is alleged to have been engaged in is alleged to have been committed against a single victim or members of the same household, as defined by Section 71.005, Family Code. (e) An offense under this section is a felony of the third degree.
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Fatal Attraction Family Violence Paper 36th Annual Rusty Duncan Advanced Criminal Law Course
II. The Circumstances The most common situation we find in defending these types of cases are the assault allegation that has been made in the context of: (1)
A Divorce;
(2)
Any Type of Ex-Lover;
(3)
Relationship Involving a Child;
(4)
A Stressed Relationship;
(5)
The Family That can’t get Along;
(6)
Meddling Parents;
(7)
The Jilted Boyfriend/Girlfriend; and
(8)
The obsessed Boyfriend/Girlfriend.
We often find our clients in these situations which when we objectively examine the situation were likely 100% avoidable. In these situations, our client will tell us; I didn’t do that, I pushed her, but I didn’t push her down, she/he hit me first, and was defending myself to name a few. However, I think when we unpack the defense strategy in these types of cases, we can all agree that our client has some responsibility for putting themselves in this situation. It is likely that the relationship with the complaining witness has not been stable for some time, and that the parties (both of them) have chosen to stay in the relationship. As such, the client has placed themselves in the crosshairs and now needs you to remedy this situation. Our client can control their actions and behavior in a divorce, the ending of a relationship, establishing how to parent a child in two different households, dealing with a meddling parent or family member, and handling the end of an intimate relationship. It is in the situation where the client has not controlled their behavior or actions that we find ourselves defending them and their actions (or lack thereof). I say this because my client may not be criminally responsible for something their ex fabricated, but we have to acknowledge and understand that they established and stayed in this relationship, which has now turned toxic. I believe by deconstructing the nature of the relationship we can develop our defensive strategy. Afterall, this is one of the few criminal offenses which specifically depends upon the establishment of some type of family relationship. Without the existence of this defined relationship this case is simply another fight. That being said, we have to recognize that angry people will say and do anything to be proven right. That person does not care who goes to jail, so long as the public understands they are right, and they are the victim. It has been my experience in handling these types of cases that when the complaining witness comes forward with a complaint of assault, often all of the relationship secrets, which were otherwise consensual, now become the building blocks of the criminal complaint. An example of this can 5|Page
Fatal Attraction Family Violence Paper 36th Annual Rusty Duncan Advanced Criminal Law Course
be in a complaint of assault family violence involving asphyxiation (choking), where the parties have this consensual rough type of sexual relationship, and it is consensual until it isn’t. The complaining witness is angry or upset at their partner, and now what was a consensual act, is now criminal behavior. It is a scary situation for the accused because that type of change in behavior can be as simple as flipping a light switch. That is why it is critical for us to understand the nature of the parties’ relationship, so we know how we got from Point A (honeymoon period) to Point B (devastation and destruction).
III. Collateral Offenses That May Arise Below are just some of the collateral types of criminal offenses, which although are not assaultive type offenses or involve a finding of “family violence”, are nevertheless offenses that we often see as emanating and extending beyond the initial assaultive complaint. This is because of the relationships involved, and specifically the relationship which exists between the complaining witness and the alleged perpetrator. Unlawful Installation of Tracking Device – Texas Penal Code § 16.06 (a) In this section: (1) “Electronic or mechanical tracking device” means a device capable of emitting an electronic frequency or other signal that may be used by a person to identify, monitor, or record the location of another person or object. (2) “Motor vehicle” has the meaning assigned by Section 501.002, Transportation Code. (b) A person commits an offense if the person knowingly installs an electronic or mechanical tracking device on a motor vehicle owned or leased by another person. (c) An offense under this section is a Class A misdemeanor. (d) It is an affirmative defense to prosecution under this section that the person: (1) obtained the effective consent of the owner or lessee of the motor vehicle before the electronic or mechanical tracking device was installed; (2) assisted another whom the person reasonably believed to be a peace officer authorized to install the device in the course of a criminal investigation or pursuant to an order of a court to gather information for a law enforcement agency; or (3) was a private investigator licensed under Chapter 1702, Occupations Code, who installed the device: (A) with written consent: (i) to install the device given by the owner or lessee of the motor vehicle; and (ii) to enter private residential property, if that entry was necessary to install the device, given by the owner or lessee of the property; or (B) pursuant to an order of or other authorization from a court to gather information. (e) This section does not apply to a peace officer who installed the device in the course of a criminal investigation or pursuant to an order of a court to gather information for a law enforcement agency.
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Fatal Attraction Family Violence Paper 36th Annual Rusty Duncan Advanced Criminal Law Course
Indecent Assault - Texas Penal § 22.012 (a) A person commits an offense if, without the other person’s consent and with the intent to arouse or gratify the sexual desire of any person, the person: (1) touches the anus, breast, or any part of the genitals of another person; (2) touches another person with the anus, breast, or any part of the genitals of any person; (3) exposes or attempts to expose another person’s genitals, pubic area, anus, buttocks, or female areola; or (4) causes another person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of any person. (b) An offense under this section is a Class A misdemeanor. (c) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both. Note based on how this statute is worded that a person can be prosecuted for assault family violence and this statute simultaneously, as per § 22.012 (4)(c). If prosecuted solely under this statute there is not a specific finding of family violence, and as such, no collateral consequences which would necessarily follow a conviction with a finding of family violence. Terroristic Threat – Texas Penal Code § 22.07 (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to: (1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies; (2) place any person in fear of imminent serious bodily injury; (3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place; (4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service; (5) place the public or a substantial group of the public in fear of serious bodily injury; or (6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state. (b) An offense under Subsection (a)(1) is a Class B misdemeanor. (c) An offense under Subsection (a)(2) is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the offense: (1) is committed against a member of the person’s family or household or otherwise constitutes family violence; or (2) is committed against a public servant. (c-1)Notwithstanding Subsection (c)(2), an offense under Subsection (a)(2) is a state jail felony if the offense is committed against a person the actor knows is a peace officer or judge. 7|Page
Fatal Attraction Family Violence Paper 36th Annual Rusty Duncan Advanced Criminal Law Course
(d) An offense under Subsection (a)(3) is a Class A misdemeanor, unless the actor causes pecuniary loss of $1,500 or more to the owner of the building, room, place, or conveyance, in which event the offense is a state jail felony. (e) An offense under Subsection (a)(4), (a)(5), or (a)(6) is a felony of the third degree. (f) In this section: (1) “Family” has the meaning assigned by Section 71.003, Family Code. (2) “Family violence” has the meaning assigned by Section 71.004, Family Code. (3) “Household” has the meaning assigned by Section 71.005, Family Code. (g) For purposes of Subsection (d), the amount of pecuniary loss is the amount of economic loss suffered by the owner of the building, room, place, or conveyance as a result of the prevention or interruption of the occupation or use of the building, room, place, or conveyance. Violation of Certain Court Orders or Conditions of Bond in a Family Violence, Child Abuse or Neglect, Sexual Assault or Abuse, Indecent Assault, Stalking, or Trafficking Case – Texas Penal Code § 25.07 (a) A person commits an offense if, in violation of a condition of bond set in a family violence, sexual assault or abuse, indecent assault, stalking, or trafficking case and related to the safety of a victim or the safety of the community, an order issued under Subchapter A, Chapter 7B, Code of Criminal Procedure, an order issued under Article 17.292, Code of Criminal Procedure, an order issued under Section 6.504, Family Code, Chapter 83, Family Code, if the temporary ex parte order has been served on the person, Chapter 85, Family Code, or Subchapter F, Chapter 261, Family Code, or an order issued by another jurisdiction as provided by Chapter 88, Family Code, the person knowingly or intentionally: (1) commits family violence or an act in furtherance of an offense under Section 20A.02, 22.011, 22.012, 22.021, or 42.072; (2) communicates: (A) directly with a protected individual or a member of the family or household in a threatening or harassing manner; (B) a threat through any person to a protected individual or a member of the family or household; or (C) in any manner with the protected individual or a member of the family or household except through the person’s attorney or a person appointed by the court, if the violation is of an order described by this subsection and the order prohibits any communication with a protected individual or a member of the family or household; (3) goes to or near any of the following places as specifically described in the order or condition of bond: (A) the residence or place of employment or business of a protected individual or a member of the family or household; or (B) any child care facility, residence, or school where a child protected by the order or condition of bond normally resides or attends; (4) possesses a firearm; (5) harms, threatens, or interferes with the care, custody, or control of a pet, companion animal, or assistance animal that is possessed by a person protected by the order or condition of bond; or (6) removes, attempts to remove, or otherwise tampers with the normal functioning of a global positioning monitoring system. (a-1)For purposes of Subsection (a)(5), possession of a pet, 8|Page
Fatal Attraction Family Violence Paper 36th Annual Rusty Duncan Advanced Criminal Law Course
companion animal, or assistance animal by a person means:(1) actual care, custody, control, or management of a pet, companion animal, or assistance animal by the person; or (2) constructive possession of a pet, companion animal, or assistance animal owned by the person or for which the person has been the primary caregiver. (b) For the purposes of this section: (1) “Family violence,” “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code. (2) “Firearm” has the meaning assigned by Chapter 46. (2-a) “Global positioning monitoring system” has the meaning assigned by Article 17.49, Code of Criminal Procedure. (3) “Assistance animal” has the meaning assigned by Section 121.002, Human Resources Code. (4) “Sexual abuse” means any act as described by Section 21.02 or 21.11. (5) “Sexual assault” means any act as described by Section 22.011 or 22.021. (6) “Stalking” means any conduct that constitutes an offense under Section 42.072. (7) “Trafficking” means any conduct that constitutes an offense under Section 20A.02. (8) “Indecent assault” means any conduct that constitutes an offense under Section 22.012. (c) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections. (d) Reconciliatory actions or agreements made by persons affected by an order do not affect the validity of the order or the duty of a peace officer to enforce this section. (e) A peace officer investigating conduct that may constitute an offense under this section for a violation of an order may not arrest a person protected by that order for a violation of that order. (f) It is not a defense to prosecution under this section that certain information has been excluded, as provided by Section 85.007, Family Code, or Article 17.292, Code of Criminal Procedure, from an order to which this section applies. (g) As amended by Acts 2021, 87th Leg., ch. 787 (HB 39) An offense under this section is a Class A misdemeanor, except the offense is: (1) subject to Subdivision (2), a state jail felony if it is shown at the trial of the offense that the defendant violated an order issued under Subchapter A, Chapter 7B, Code of Criminal Procedure, following the defendant’s conviction of or placement on deferred adjudication community supervision for an offense, if the order was issued with respect to a victim of that offense; or (2) a felony of the third degree if it is shown on the trial of the offense that the defendant: (A) has previously been convicted two or more times of an offense under this section or two or more times of an offense under Section 25.072, or has previously been convicted of an offense under this section and an offense under Section 25.072; or (B) has violated the order or condition of bond by committing an assault or the offense of stalking. (g) As amended by Acts 2021, 87th Leg., ch. 915 (HB 3607) An offense under this section is a Class A misdemeanor, except the offense is: (1) subject to Subdivision (2), a state jail felony if it is shown at the trial of the offense that the defendant violated an order issued as a result of an application filed under Article 7B.001(a-1), Code of Criminal Procedure; or (2) a felony of the third degree if it is shown on the trial of the offense that the defendant: (A) has previously been convicted two or more times of an offense under this section or two or more times of an offense under Section 25.072, or has previously been convicted of an offense under this section and an offense under Section 25.072; or (B) has violated the order or condition of bond by committing an assault or the offense of stalking. 9|Page
Fatal Attraction Family Violence Paper 36th Annual Rusty Duncan Advanced Criminal Law Course
(h) For purposes of Subsection (g), a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense under this section or Section 25.072 is considered to be a conviction under this section or Section 25.072, as applicable. Violation of Protective Order Preventing Offense Caused by Bias or Prejudice – Texas Penal Code § 25.071 (a) A person commits an offense if, in violation of an order issued under Subchapter C, Chapter 7B, Code of Criminal Procedure, the person knowingly or intentionally: (1) commits an offense under Title 5 or Section 28.02, 28.03, or 28.08 and commits the offense because of bias or prejudice as described by Article 42.014, Code of Criminal Procedure; (2) communicates: (A) directly with a protected individual in a threatening or harassing manner; (B) a threat through any person to a protected individual; or (C) in any manner with the protected individual, if the order prohibits any communication with a protected individual; or (3) goes to or near the residence or place of employment or business of a protected individual. (b) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections. (c) A peace officer investigating conduct that may constitute an offense under this section for a violation of an order may not arrest a person protected by that order for a violation of that order. (d) An offense under this section is a Class A misdemeanor unless it is shown on the trial of the offense that the defendant has previously been convicted under this section two or more times or has violated the protective order by committing an assault, in which event the offense is a third degree felony. Interference with Emergency Request for Assistance - Texas Penal Code § 42.062 (Commonly Referred to As Interference with a 911 Call) (a) An individual commits an offense if the individual knowingly prevents or interferes with another individual’s ability to place an emergency call or to request assistance, including a request for assistance using an electronic communications device, in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals. (b) An individual commits an offense if the individual recklessly renders unusable an electronic communications device, including a telephone, that would otherwise be used by another individual to place an emergency call or to request assistance in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals. (c) An offense under this section is a Class A misdemeanor, except that the offense is a state jail felony if the actor has previously been convicted under this section. (d) In this section, “emergency” means a condition or circumstance in which any individual is or is reasonably believed by the individual making a call or requesting assistance to be in fear of 10 | P a g e
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imminent assault or in which property is or is reasonably believed by the individual making the call or requesting assistance to be in imminent danger of damage or destruction. Harassment - Texas Penal § 42.07 (a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person: (1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene; (2) threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of the person’s family or household, or the person’s property; (3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury; (4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; (5) makes a telephone call and intentionally fails to hang up or disengage the connection; (6) knowingly permits a telephone under the person’s control to be used by another to commit an offense under this section; (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; or (8) publishes on an Internet website, including a social media platform, repeated electronic communications in a manner reasonably likely to cause emotional distress, abuse, or torment to another person, unless the communications are made in connection with a matter of public concern. (b) In this section: (1) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes: (A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and (B) a communication made to a pager. (2) “Family” and “household” have the meaning assigned by Chapter 71, Family Code. (3) “Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function. 11 | P a g e
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(c) An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if: (1) the actor has previously been convicted under this section; or (2) the offense was committed under Subsection (a)(7) or (8) and: (A) the offense was committed against a child under 18 years of age with the intent that the child: (i) commit suicide; or (ii) engage in conduct causing serious bodily injury to the child; or (B) the actor has previously violated a temporary restraining order or injunction issued under Chapter 129A, Civil Practice and Remedies Code. Stalking – Texas Penal Code § 42.072 (a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that: (1) constitutes an offense under Section 42.07, or that the actor knows or reasonably should know the other person will regard as threatening: (A) bodily injury or death for the other person; (B) bodily injury or death for a member of the other person’s family or household or for an individual with whom the other person has a dating relationship; or (C) that an offense will be committed against the other person’s property; (2) causes the other person, a member of the other person’s family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be committed against the other person’s property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and (3) would cause a reasonable person to: (A) fear bodily injury or death for himself or herself; (B) fear bodily injury or death for a member of the person’s family or household or for an individual with whom the person has a dating relationship; (C) fear that an offense will be committed against the person’s property; or (D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. (b) An offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor has previously been convicted of an offense under this section or of an offense under any of the following laws that contains elements that are substantially similar to the elements of an offense under this section: (1) the laws of another state; (2) the laws of a federally recognized Indian tribe; (3) the laws of a territory of the United States; or (4) federal law. (c) For purposes of this section, a trier of fact may find that different types of conduct described by Subsection (a), if engaged in on more than one occasion, constitute conduct that is engaged in pursuant to the same scheme or course of conduct. (d) In this section:
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(1) “Dating relationship,” “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code. (2) “Property” includes a pet, companion animal, or assistance animal, as defined by Section 121.002, Human Resources Code. How and Why? These types of collateral criminal act(s) will usually come up during a divorce, custody dispute, or the end of a bad relationship when your client does not believe the Court system is an adequate means to address his concerns. The client attempts to speak to the complaining witness because this is all a big misunderstanding, or your client decides to take matters into his or her own hands and try and catch the offending party red-handed. This of course results in conduct that may be labeled as harassment or stalking by the State. Worse yet, the client violates a protective order or bond condition in an attempt to explain themselves to their ex. It is often our client’s own obsessive conduct which assists the State in making their case. Many times, the accused cannot help themselves because they believe that if they can just show the State the complaining witness is a liar and cheat, all will be forgiven. This is not how this process will unfold, and I will tell my client in no uncertain terms they are not to communicate with the complaining witness under any circumstances. It is not advisable for the client to start their own private investigation of the pending matter which may result in them violating a protective order or bond condition. These types of cases, if they have been charged as subsequent conduct against the client, can be avoided if your client just left it alone and allowed the process to play out. As an example, bad divorce and child custody situation, your client’s own super-sleuthing skill set leads them to purchase a GPS tracking device from Amazon or any other retailer that carries it. The client, as noble as they may be, is under the impression that if Amazon or Best Buy sells this type of device it must be legal. This is a hard conversation to have with your client, and I know of no known defense to this criminal offense other than consent. Mistake of Law will not be a defense to this type of accusation. When this occurs, we will likely have to plead this type of case or take it into consideration with any other pending cases. I would hope that in a Family Law situation the client’s family law attorney is educating them on the process and what will be allowed or tolerated by the Court. While I do not want to focus on these types of offense, I do believe we need to be aware of them and how intertwined they can become in a family violence situation. Again, it is the relationship and family dynamics which play a pivotal role in when an accusation of Assault Family Violence is made, and what the specific circumstances of that accusation are known to be. The accusation of Assault Family Violence is bad enough, but the truth of the allegation itself can often take months or years to resolve, and as we know our clients are not always patient. Sometimes we have to counsel and protect our clients from themselves, especially in a situation where the emotional context of an ex-spouse and children are contributing factors to the emotional angst of the situation.
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IV. Defenses There are basically three general ways in which to defend a criminal case. 1.
I didn’t do it;
2.
I did it, but I had a reason; or
3.
I did it and I’m sorry (punishment case).
Within each type of criminal case which we defend there are multiple manners in which to develop your given defensive strategy. For the purposes of defending a Family Violence Assault case, we will focus on the defense of “I didn’t do it officer”. When developing this defense, we need to focus on the available components of the offense from which we can defend our client. I will usually break this defense down using 5 or 6 explanations for why my client is not guilty of Assault Family Violence. I am not going to spend a great deal of time discussing the applicability and specifics of each of these types of available defenses, because what type of defense is available is not nearly as pertinent to the case strategy as how we investigate the case facts and develop the client’s defensive strategy. It should become apparent when accepting an Assault Family Violence case, what defenses are available, and they can often be a combination of each of the below described defenses. 1.
They Arrested the Wrong Person
I wasn’t there (alibi defense), and I could not have assaulted her/him. They got the wrong guy, they should talk to her current boyfriend. This defense can be somewhat tricky as we generally have to establish a motive as to why the complaining witness would lie and make this type of allegation against the client. 2.
False Accusation
This defense is based upon the motivation of the complaining witness to lie. Bias, prejudice, jealousy, spite, vindictiveness, or revenge to name a few. This type of defense is akin to what we discussed above, because if they got the wrong guy there has to be a motivation to lie on the part of the complaining witness. This type of defense will often be the focus in an Assault Family Violence Case, which has manifested itself out of a divorce or child custody dispute. A spouse or ex-spouse is capable of terrible lies and false accusations to make a point, and certainly to make sure the client never gets to see their children. 3.
Consent
While a somewhat rare defense, there are circumstances where the act(s), which may be considered assaultive, are invited. This is a situation in a relationship where the parties are participating in consensual acts, when viewed independently of the relationship, would be considered assaultive in nature. Such as, a couple that enjoys rough sex, or other sexual stimulus such as erotic asphyxiation (also known as asphyxiophilia, hypoxyphilia or breath control play). 14 | P a g e
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This is a situation where the couple purposely engage in one of them intentionally restricting the air flow and flow of oxygen to the brain of their partner, for the purposes of sexual arousal. Under these types of circumstances, the party complaining after the event is now alleging that they didn’t agree to that act or conduct, and it wasn’t consensual. Can be difficult to defend because you will likely have some type of visible injury if they have made such a complaint to law enforcement. Specifically, while Texas Penal Code § 22.06 is available for use under subsection (a), it is also applicable to the defense of self-defense, which will be discussed in detail below. Also, if you are investigating and developing a defensive strategy which involves a claim of consent as a defense, you must remember that you need to put on sufficient evidence in some manner, such that you can request a jury instruction on consent. This is not burden shifting, but if the jury does not hear or is presented any evidence which would support an instruction on consent, then the Court will not allow your requested jury instruction on consent. This can be accomplished based upon the effective cross-examination of the complaining witness, or through calling witnesses in your case-in-chief, after the State has rested. It can be raised through an audio or video that is entered into evidence which refers to the circumstances of the event and offers an explanation such as “they like to be choked”. However, the requested instruction must be based upon evidence which has been admitted for the jury’s consideration, and not argument of counsel. It certainly can be raised by calling your client to testify, but again this type of decision is going to be based upon your desired trial strategy. Consent as a Defense to Assaultive Conduct – Texas Penal Code § 22.06 (a) The victim’s effective consent or the actor’s reasonable belief that the victim consented to the actor’s conduct is a defense to prosecution under Section 22.01 (Assault), 22.02 (Aggravated Assault), or 22.05 (Deadly Conduct) if: (1) the conduct did not threaten or inflict serious bodily injury; or (2) the victim knew the conduct was a risk of: (A) his occupation; (B) recognized medical treatment; or (C) a scientific experiment conducted by recognized methods. (b) The defense to prosecution provided by Subsection (a) is not available to a defendant who commits an offense described by Subsection (a) as a condition of the defendant’s or the victim’s initiation or continued membership in a criminal street gang, as defined by Section 71.01. 4.
Self-Defense
Self-defense is the claim that your client, based on the circumstances involved, reasonably perceived an imminent threat, and responded in a proportional manner, and was not the initial aggressor. This type of defense is a defense that can excuse criminal responsibility even if the prosecutor proves the elements of the crimes charged. However, self-defense is not an affirmative defense because the burden of proof does not shift and remains the prosecutor’s 15 | P a g e
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responsibility. If you are investigating and developing a defensive strategy which involves a claim of self-defense, you must remember that you need to put on sufficient evidence in some manner, such that you can request a jury instruction on self-defense. Again, as in the consent defense, this is not a burden shifting argument, but if the jury is not presented with any evidence which would support an instruction on self-defense, the Court will not allow your requested instruction on self-defense. Again, much like a consent defense, this can be accomplished based upon the effective cross-examination of the complaining witness, or through calling witnesses in your case-in-chief, after the State has rested. It can be raised through an audio or video that is entered into evidence which refers to the circumstances of the event and offers an explanation such as “they came at me with a knife and hit me first”. However, the requested instruction must be based upon evidence which has been admitted for the jury’s consideration, and not argument of counsel. It certainly can be raised by calling your client to testify, but again this type of decision is going to be based upon your desired trial strategy and may be risky depending upon your client’s criminal history. Specifically, in order to raise self-defense as an issue for the jury to consider, there must be some evidence on aggression on the part of the complaining witness, or under very unfortunate circumstances the deceased individual. If you find yourself in a situation defending a family violence type assault which resulted in your client using deadly force, you need to be aware of the term “reasonably believes” as provided for in Texas Penal Code § 9.32 as it encompasses a traditional holding that a defendant is justified in defending against danger as he reasonably perceives it. See Hamel v. State, 916 S.W.2d 491 (Tex. Crim. App. 1996). This concept of reasonableness is couched in and interpreted from the defendant’s perspective at the time they acted. See Generally, Contreras v. State, 73 S.W.3d 314 (Tex.App.- Amarillo 2001, pet. ref’d). The key component in utilizing self-defense at trial is the reasonableness of the accused action(s) under the circumstances. This is because as we argue that it was reasonable that our client used force to defend themselves against the complaining witness, we must explain the circumstances which dictated the need for the use force or deadly force, and that it was reasonable in that instance. Self-Defense - Texas Penal Code § 9.31 (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor: (1) knew or had reason to believe that the person against whom the force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment; (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or 16 | P a g e
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(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery; (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. (b) The use of force against another is not justified: (1) in response to verbal provocation alone; (2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c); (3) if the actor consented to the exact force used or attempted by the other; (4) if the actor provoked the other’s use or attempted use of unlawful force, unless: (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (B) the other nevertheless continues or attempts to use unlawful force against the actor; or (5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was: (A) carrying a weapon in violation of Section 46.02; or (B) possessing or transporting a weapon in violation of Section 46.05. (c) The use of force to resist an arrest or search is justified: (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary. (d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34. (e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.
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(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat. 5.
There is a Lack of Evidence
This is often a defense which is used in combination with the defense of false accusation, wrong person, and even consent. I don’t believe it would necessarily apply to self-defense, because of the nature of the accusation and admitted use of force against the complaining witness. This is generally speaking our strongest line of defense, because simply put you argue given the circumstances and facts available the State does not have enough credible evidence to convict your client beyond a reasonable doubt. I believe in these types of cases, often as in sexual assault cases (children or adults), the State places a huge amount of pressure on the jury to find a way to convict, because people just don’t lie about things of this nature. That is simply an ideological and naïve view of our society. We are generally a selfish group of individuals that are capable of saying or doing anything to prove the point we believe needs to be made. It is not about seeking the truth with a complaining witness that has decided that the ends justify the means. I also don’t expect the State to exercise restraint if they believe the complaining witness. But I do believe we can fashion our argument to the jury, such that they understand the pressure they feel is not being applied by the defense, and their duty is to follow the law and render a verdict based on evidence, not emotion. We start this process in voir dire and emphasize the State’s burden of proof at each phase of the trial. Lack of proof is a viable defense in a swearing match case, even if injuries are present, that is why helping the jury understand the relationship between the parties is critical in demonstrating the lack of proof, and as such, the State cannot meet its burden. I know in these types of emotional cases the client wants to be vindicated. I don’t know about you, but I am in the vindication business, I am seeking a “not guilty” and sending my client back home to his family. We should reserve the platitudes in the art of criminal defense for the media and talking heads, our job is to do everything we can to make sure the client goes out the same door of the courtroom he came in.
V. Voir Dire Telling your client’s story begins in voir dire. While you can’t reference specific case facts in voir dire, you can question the panel on the beliefs and opinion regarding general facts concerning the accusation of Assault Family Violence. The issues we are faced with during voir dire are exposing and getting the jury panel members to discuss the multiple elephants in the room. We focus on areas during voir dire such as: 1.
Credibility of Witnesses
2.
Law Enforcement (Capable of Making Mistakes/Taking Shortcuts)
3.
Any Victims of Assault on the Panel
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4.
Personal Issues of Panel Members (Issues = They can’t be Fair)
5.
Personal Feelings About the Charge
6.
Know the Complaining Witness (Happens in Small Areas)
7.
Use of Counselors or Therapist [Do they trust them = Can they be fair]
8.
The Bad Divorce or Break-up [Panel Members Experiences]
Sample Questions: 1.
Anyone ever been a victim of domestic abuse/violence? -Are you comfortable talking about it? -What happened? -Resolved to your satisfaction? -In your mind how should it have been resolved? -Reflecting on that, how do you feel about that situation now? -Given those feelings, can you be fair, are you biased against the Defendant? [This last question should be done up at the bench and potentially used for a challenge for cause]
[Can repeat same line of questioning for people that have family members or friends which were victims of domestic abuse/violence] 2.
Anyone ever actually witnessed an act of what you consider to be domestic violence? -Are you comfortable talking about it? -What did you witness? -How did it make you feel as you witnessed it? -Did you get involved and give a statement to law enforcement? -Reflecting on that, how do you feel about that situation now? -Given those feelings, can you be fair, are you biased against the Defendant? [This last question should be done up at the bench and potentially used for a challenge for cause]
3. Can anyone think of a situation when a spouse, significant other, or family member is justified in using physical force against their spouse, significant other or family member? 4.
When is a person justified in using force to defend themselves?
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[Use with claim of self-defense] 5. Under what circumstances is a person allowed to defend themselves against a spouse, significant other or family member? 6. How do you feel about a situation where a person initially complains of assault, but then says nothing happened? 7.
Why would a spouse or significant other lie?
8.
Ever had a spouse or significant other cheat on you? -How did that make you feel? -Can we agree that they lied to you?
9.
Can we agree that a spouse, significant other or family member is capable of lying?
10.
Why do people lie?
[Should be able to get the jury talking specifics of why people lie, and start looping between the jurors] [My experience is that female panel members are usually more vocal about this issue, so I tend to focus on women, but in the situation where you can get that man to speak up you are going to want to loop back to him with each female response] [This purpose becomes much clearer once you get feedback on this issue, because if I am defending a husband/boyfriend against the complaints of the wife/girlfriend, I want to use this exercise to build a case for challenges for cause against any female jurors that may prejudiced against the husband/boyfriend in this situation] 11. Ever made a statement or allegation against a loved one or friend out of anger (heat of the moment), knowing it’s not true? 12. Do you think it could be difficult to walk that statement back once you made it to a member of law enforcement? These are just some sample questions I will generally outline prior to trial, but much of my voir dire could change depending upon how the State conducts its voir dire. My experience with the State’s voir dire practice in assault cases is that the prosecutor will often times ask a line of specific questions which focus on intimidation and manipulation. The State is doing this to try and educate the jury panel on the subtle and even overt types of intimidation and manipulation which occur. If this is the State’s focus you can be pretty sure the State is laying the groundwork to explain (1) why a witness may not testify, (2) why a witness would recant, (3) show the jury how this manipulation and intimidation is just another form of abuse, and (4) why the State’s case does not have a smoking gun piece of evidence. The State will often do this in a very subtle way by asking scaled questions. An example of such a scaled question is: 20 | P a g e
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1. If a wife does not report her husband assaulting immediately after the act does that make her complaint less true? -Strongly Agree -Agree -Disagree -Strongly Disagree [Depending upon how the question is phrased from a scaled perspective you will need to watch for a committal type question] [Your follow-up committal questions on this topic tend to be connected to those who strongly agree, because that is who the State wants to strike] When the State starts down this path, I will usually make note of those assertions, as you will have to diffuse this type of questioning during your voir dire by addressing the State’s scaled questions. I believe that scaled questions are just a manner in which a side (State of Defense) is attempting to get the panel member to cheerlead for their cause. This is because I can neutralize those same panel members by using the timing of the complaint against the State. Defense follow-up questions on this issue could be: 1. If they waited a couple days to report the assault, we can agree it could give them more time to organize their story. 2. Can we agree that if we don’t take pictures of the supposed injuries at or near the time the act occurred, we can’t be sure where those injuries came from? 3.
Why would anyone need time to organize their story?
4.
Why would anyone need time to organize the truth?
Much of what you may have to accomplish during your voir dire may be in response to these issues the State has raised. Keep in mind you have the ability to adapt and reform your voir dire after having heard the State’s voir dire, and there is no rebuttal. I would have a general voir dire outline completed which focuses on your defense and trial strategy, but I would also have some questions ready for what you anticipate the State may ask given the weaknesses you have identified in their case.
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VI. Deconstructing the Case & Developing a Defensive Strategy Case Details Most assault family violence cases, whether it involves an adult or a child, involve similar details which must be investigated. I have organized these details into subject matter topics as follows: 1.
The Complaint of Assault a. When was it made in relation to when it occurred? b. How was it made and under what circumstances? c. If not law enforcement, who did they initially complain to?
2.
The Alleged Victim [Personal and Medical History] a. Age b. Medical History c. Relationship to your client d. Family History e. Educational level and background f. Child Protective Services History (Sometimes Applicable)]
3.
Were any Physical Injuries Sustained [Types] a. Bruises b. Scratches c. Abrasions d. Tears (On about or near Vaginal Cavity and/or Anus)
Practice Note: 4.
A qualified medical expert can assist you in identifying and working with the type and causation of certain injuries that may have been sustained.
Circumstances of the Alleged Assault a. Time and date when it occurred b. What is the description of the physical location where act allegedly occurred c. Type of lighting available d. If occurred inside, what are the dimensions of the location and what type of furnishings were present e. Is it a crowded neighborhood, and did anyone hear or see anything [If crowded neighborhood who else had access to the location and the alleged victim]
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f. g.
Are there any cam recording devices either in the location itself or located outside of the location (i.e.: a security cam at a convenient store may provide information) Canvas the area and location of the alleged assault to gather information regarding the circumstances
5.
Relationships a. Between your client and the alleged victim b. Motive and bias to lie c Family members often attempt to lie or cover up for the real perpetrator d. Between the alleged victim and their family e. Possible other suspects f. Any other family members have violent, or drug related criminal histories g. Motive and bias to lie h. Bad breakup or divorce
6.
Client’s background and history a. b. c. d. e. f.
7.
Medical history (physical anomalies of client’s anatomy) Mental health history Criminal history Child Protective Services history Employment history Family background
Develop a Timeline of Events a. [Using your breakdown of the alleged victim, the witnesses, family members, the location, any injuries sustained and causation, and any other material case facts, you will begin to develop a timeline of events] b. Does your client have an alibi? c. Who else was and/or could have been present when assault allegedly occurred d. What were the physical circumstances which were present and/or should have been present?
Who, What, When, Where, How and Why The process of investigating an allegation of assault family violence, as in most cases, begins with relevant questions which surround who, what, where, when, how and why. 1. 2. 3. 4. 5. 6. 23 | P a g e
What is your client accused of doing? Who are they accused of assaulting? When did they assault the complainant? Where did the assault happen? How did the assault occur? Why did the assault occur?
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Have to start investigating the possible answers to these questions to understand the expert’s involvement and how they are going to assist the State during trial. 1.
Investigate the Cast of Characters a. The nature of the relationship between your client and the alleged victim. [Motive or Bias] b. Identify the witnesses that have observed the relationship between your client and the alleged victim. [Motive or Bias] c. The nature of the relationship between the identified witnesses and your client. [Motive or Bias] d. The nature of the relationship between the identified witnesses and the alleged victim. [Motive or Bias] e. The relationship between the physical circumstances (ie: location, time of day, date of occurrence) involved concerning the crime as alleged, and your client. [Alibi Defense] f. What is the relationship between the physical circumstances (ie: location, time of day, date of occurrence) involved concerning the crime as alleged, and the alleged victim. [Eye-Witness ID] g. What is the relationship between the physical circumstances (ie: location, time of day, date of occurrence) involved concerning the crime as alleged, and the identified witnesses. [Motive or Bias/Eye-Witness ID] h. Identify the injuries sustained by the alleged victim. You will need any to determine if the alleged victim had any pre-existing injuries and/or previously sustained similar type injuries? If possible, determine the time and date of the injuries. Based on the allegations, should injuries be present and visible, and they are not? [Request Medical Records]
This list of issues is not intended to be all inclusive, but can help you identify the relationships that exist, and the facts and information which should be investigated, in order to develop your defensive theory. 2.
Investigate the Crime Scene a. Investigate and document the entire crime scene. b. If the crime scene is a residence, what are the dimensions and square footage of the residence? c. What furnishings were present during the occurrence of any alleged injuries? d. What is your client’s connection to the crime scene? e. What is the alleged victim’s connection to the crime scene? f. Do any of the witnesses have a connection to the crime scene? g. Is the crime scene in a remote location or populated area (this would possibly lead to other witnesses or possibly video of the offense)? h. If applicable, how long did it take law enforcement and/or emergency medical services to respond to the 911 call and arrive at the crime scene?
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3.
Investigate the Circumstances of the Crime a. b. c. d. e.
What was the weather? When did it occur? What time of day did it occur? Was it light or dark out? What were the environmental conditions (ie: cloudy, rainy, foggy, etc.) f. Did the street have lighting? g. Was the dwelling lit up? h. How was the furniture arranged? i. What type of neighborhood was involved? j. Were the neighbors home? k. Who called the police? l. Did the neighbors hear anything? m. Should the neighbors have heard anything? 4.
Resources to Utilize
Video of surrounding businesses or residences. Again, as I stated previously you should and need to canvass the neighborhood for any potential witnesses or information. a. b. c. d. e. f. g.
Subpoena 911 call and dispatch records. Google Maps and Google Earth. Surveillance cameras. Home security cameras. Busybody neighbors. Use a property records search to determine ownership and possession. If possible, review your client’s, the child’s family, and any witness’s social media accounts to establish any connections between them and the crime scene. (It is surprising what people will tweet, post on Facebook, or put on Instagram or Pinterest) h. Determine square footage, and distances to other residence(s) or building (ie: if occurred in an apartment complex, usually can get a copy of floor plan of each type of unit, or is online) i. Sometimes you need to just bring a tape measure and a camera. 5.
Use Caution
These types of cases are often emotionally charged and involve varied personalities which are not capable of a rationale thought process. Again, we need to assume that in most cases it is more important for the complaining witness and their supporters to be right than it is to be truthful. With that being said, we need to be cautious about how we approach certain witnesses and handle certain information.
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a. Affidavits of Non-Prosecution (i) If you have an investigator, allow your investigator to make initial contact with the complaining witness. You will need to monitor the content of how your investigator should communicate with this individual. In my opinion, it is not wise to allow your investigator to get too involved in procuring the affidavit, because you do not want to sacrifice the credibility of your investigator or jeopardize their continued involvement in the case. (ii) Be aware that once you reach out to the complaining witness, it is likely that they will notify the State or law enforcement of your actions. (iii) In contacting the complaining witness, you need to be familiar with the rights of privacy, and other rights they may have under Chapter 56 of the Texas Code of Criminal Procedure (Rights of Crime Victims). (iv) Initially, as a general rule I will not contact or have my investigator contact the complaining witness unless I have received information that they desire to cooperate with our investigation. (v) If the complaining witness desires an Affidavit of Non-Prosecution, it can be accomplished for any specified reason as explained in the affidavit, but the basic rationale rests on two premises; (1) they no longer desires to pursue the prosecution of the defendant, and the interests of justice are served by a dismissal of the charges, and (2) they have recanted their previous statement as being untrue, and as a result the defendant should not be prosecuted. (vi) Don’t give legal advice to the complaining witness. If I end up meeting with the complaining witness, I will record the meeting with their consent, and explain to them that I cannot give them legal advice. (vii) It is my experience that most Affidavits of Non-Prosecution are executed because the complaining witness no longer desires to pursue the prosecution. (viii) You need to explain to your client and the complaining witness, that regardless of whether or not an Affidavit of Non-Prosecution is executed, the State will still have the sole prerogative to pursue criminal charges. (ix) Based on my experience, other than notarizing the affidavit, if necessary, your staff should not discuss or play any role in obtaining the Affidavit of NonProsecution. b. Interviewing and getting a statement from the complainant (i) It is always preferable to use an investigator to get a statement from the complaining witness. (ii) Other than notarizing the statement if it is sworn too or acknowledged, your staff should not discuss or play any role in obtaining a statement from the child’s family. (iii) In the event that the complaining witness is recanting their statement, you need to document this information, and if possible, reduce this recantation to a written and/or recorded form. It is advisable that you and/or your investigator should have recorded documentation regarding this recantation or have a witness present who can verify the recantation.
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(iv)
In contacting and getting a statement from the complaining witness, whether it is you or your investigator, be aware of Texas Penal Code Sections 36.05 (Tampering With Witness) and 36.06 (Obstruction or Retaliation). (v) If your client’s family or friends are cooperating with your investigation, and they are assisting in contacting or getting a statement from any of these individuals, they need to be made aware of Texas Penal Code Sections 36.05 (Tampering With Witness) and 36.06 ( Obstruction or Retaliation). (vi) The purpose of mentioning these penal code statutes is based on my previous experience you may get a call from the State or law enforcement suggesting a line has been crossed, and you need to be familiar with them so you can respond appropriately. c. Interviewing and getting a statement from a witness (i) Many of the same caveats and precautions which apply in interviewing and obtaining a statement from the complaining witness apply to other witnesses as well. (ii) It is always preferable to use an investigator in obtaining a witness statement. (iii) Again, other than notarizing the statement if it is sworn too or acknowledged, your staff should not discuss or play any role in obtaining a statement from a witness.
VII. The Experts Based on the facts and evidence, the State in these types of cases may bring in an expert to review the facts, including but not limited to law enforcement officers involved in the investigation of the case and arrest of the Defendant. Examples of the Many Types of Experts Which Could Get Involved: 1. 2. 3. 4. 5. 6. 7. 8.
SANE Nurse Medical Doctor Pediatrician Psychologist Psychiatrist Trauma and/or ER Physician Pathologist Other Medical Doctors or Professionals ((Pre-existing Injuries and Susceptibility to Injury (i.e.: alleged victim bruises easily)) 9. DNA, Molecular Biology and Forensic Molecular Biology 10. Child Psychologist for Purposes of CAC Forensic Interview 11. CAC Forensic Interviewer 12. Forensic Psychologist (Testing – Punishment Issue) 13. Sex Offender Treatment Provider (Counseling – Punishment Issue) 14. Counselor and Therapist
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15. Fingerprint Expert 16. Ballistics Expert 17. Arson Expert 18. Bite Mark Expert 19. Botanist 20. Computer Expert 21. Future Dangerousness Expert 22. Engineer 23. Accident Reconstruction Expert 24. Weather Expert 25. Eyewitness Identification Expert 26. Linguistics Expert 27. Speechreading – Lip Reading Expert 28. Body Language Expert 29. Polygraph Examiner 30. Entomology (Study of Insects) 31. Construction Expert 32. Toxicologist 33. Pharmacological Expert 34. Blood Technician 35. Breath Test Analysis Expert The list itself is only limited by your imagination and that of the State’s prosecutor. It really has only been in the last thirty to forty years that the criminal defense arena has exploded with the State’s use of experts. The State will likely take the position that this is because since the mid 70’s we have become much more technologically advanced in the areas of forensic science and investigations. However, I believe it is much more than something as simple as well we put a man on the moon so of course we have better scientific resources available. Yes, we have a wealth of scientific resources available in this day and age, but I believe in many instances the State needs an expert to bolster its case because what they lack in motive and actual evidence, they will make up in the area of opinions and hyperbole. This can be especially true in an Assault Family Violence case, where we may have multiple experts involved, such as psychologist, therapist, or counselor, and the vaunted “Cycle of Abuse” expert (which we will address in detail later in this paper). As criminal defense attorneys have gotten better at taking on the State’s case and holding them to their burden of proof, the State has gotten better at moving the goal posts to achieve a conviction. So, to effectively take on the State’s Experts we must investigate all aspects of our case as we prepare for trial, including understanding the Who, Where, What, When, How and Why as it concerns the expert’s involvement in the case. Benjamin Franklin said it best, “By failing to prepare, you are preparing to fail”. 28 | P a g e
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1.
Who is the Expert
[Building the Expert’s Profile]
We need to know their personal details. (1) How old are they, (2) What is their family situation, (3) Where were they educated (4) What is their level of education, (5) How long have they been practicing in their given field of expertise, (6) Have they published any articles or books on topic, (7) What type of continuing education or training do they have, (8) What is their standard compensation for testifying, (9) Who do they generally testify for at trial, (10) Have they been excluded from testifying, (11) What treatises or reference materials have they relied upon in the past in developing an opinion in their field. The basics are easy to obtain, such as their age, family situation, and educational level and experience. If the educational information on a given expert is limited, you may want to explore the possibility of two options to further develop this part of their profile. (1) Request the State to provide the expert’s CV, as many times the State may already have this information, and/or (2) Once you know who the expert is and the field of expertise call them up and ask them their level of education, where they went to school and how long have, they been practicing in the particular field of expertise. The other information which may be necessary to complete the profile is often times harder to come by unless the expert has a noted history and track record so to speak. If they do not, then you may have to question the expert further on their experience and training and the information they have relied upon in reaching their opinion or conclusion. They may not share this information with you, especially if the State has told them that they do not have to speak with us, but I am fine with asking those questions during trial, as follows: a. “Dr. Smith, I called and spoke to you on the phone on December 3, 2022, correct? Yes. b. When I asked you your level of training and experience, you refused to answer me, correct? c. When I asked you how much you were being paid to review the State’s case, you refused to answer me, correct? d. When I asked you what information or materials, if any, you relied upon in reaching any opinions or conclusions, you refused to answer me, correct? e. If we are all interested in getting to the truth, can you understand my confusion as to why you refused to answer me? [Don’t’ care what the response is] f. Can we agree that I was respectful and professional when speaking to you? g. Can we agree that the only reason you refused to answer my questions is that the State told you not to speak to me, correct? h. If the State is interested in getting to the truth and seeking justice, do you know why they would not want you to speak to me? [Don’t care what the response is]
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I have not had to use this particular course of action with an expert in years, because the State will not risk instructing them to not agree to speak with us. Tactically, the State is giving you the golden ticket to discrediting their expert if they instruct them not to speak to us regarding their opinion and/or report. If science does not lie, then the State should not hide their experts in a cave. If the State’s expert exclusively testifies for the State, we can generally locate this information through our friends in the defense bar, and by just investigating their work history. Prior transcripts of experts are of great use, and you can ask your friends and neighbors if they are available or even get on the TCDLA listserve and inquire as to their existence. If they only play for Team State, then our cross-examination takes on an additional aspect as to who they are, because we now want to show that they are biased and have tunnel vision. We can do this in a number of ways, such as: a. Dr. Smith, you have never testified on behalf of a Defendant, correct? b. You exclusively testify on behalf of the government, correct? c. You are being paid by the government for your testimony today, correct? d. You are being paid the sum of XXX Dollars to render an opinion consistent with the State’s case, correct? e. We can agree that the State would not have you come over here to give an opinion contrary to their case, be crazy, wouldn’t it? Tip: This line of questioning to follow can work if you have information that the expert has been excluded from testifying or the Defendant was acquitted despite the expert’s testimony. If those issues cannot be established it is not effective, and more importantly if not carried out expeditiously you will draw an objection as to relevance, or the Court may stop you. If the Court stops you or sustains a relevance objection, I would ask the Court to excuse the jury so you can put on a Bill of Exception as to this line of questioning because I think it is relevant and based on the testimony history of the expert could prove more relevant over time. Many times, over the course of several years some experts and their field of study have been exposed as junk science, and if they have been wrong and a jury or their peers have disagreed with their previous opinion, it is relevant. f. We can agree that you have been wrong before, correct? g. Or we can at least agree that a jury of this great State disagreed with your opinion, correct? h. Mr. Jones was acquitted in a trial in which you testified for the State, correct? i. We can agree that Dr. XYZ has stated openly that your theory of _______________, is not supported by empirical evidence? 30 | P a g e
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j. We can agree that your opinion on this theory of __________________, has not been peer reviewed and has not been widely accepted as a valid scientific premise in the field of ______________? 2.
How is the Expert Assisting the State?
This is the trap question and will require not only a fair amount of investigation, as noted above, but may require you to at least consult with your own expert on the subject matter. Further, you will need to educate yourself in their specific field of expertise as it concerns the assault family violence allegations, so you can understand and communicate with these experts on their level. Some expert roles that you should become familiar with in an Assault Family Violence case are: -
Therapist/Counselor DNA Defensive Injuries Bruising Psychology of Family Violence [Behaviors Inherent in Assault Family Violence Victims] Cycle of Abuse - Family Violence Psychology of Intimidation Psychology of Control and Manipulation
These fields of study are easy to recognize, and you can quickly start putting together the pieces to construct a cross-examination of the State’s expert specific to their report and/or findings. However, some fields of scientific study are not so readily apparent and require further investigation. It may be a case of Soft Science versus Hard Science. Hard science is a field of scientific study that strictly adheres to the scientific method. Generally speaking, hard sciences include fields of scientific expertise such as physics, math, chemistry, biology, DNA, human physiology, astronomy. Hard sciences are often referred to as the natural sciences. Soft science is a scientific discipline which is loosely based upon the scientific method. The soft sciences are the social sciences and can include disciplines such as sociology, psychology, future dangerousness, and the effect of trauma and pre-disposition of PTSD as a result of trauma. There is an inherent problem with the complex nature of a soft science wherein something cannot be measured with precision, such as in a hard science. When we are dealing with something labeled as a cognitive science, which generally falls into the realm of human behavior and emotions (ie: psychology), this is a soft science and we should approach the State’s expert in this field with a certain amount of subjective cynicism, because the expert can sometimes make a round peg appear that it can fit in that square hole. We should never shy away from confronting a soft science expert regarding the subjective nature of their field of study, in fact if they are as qualified as they will say they are they will expect this type of inquiry and should be able to explain their role in assisting the jury. This becomes our ground zero for attacking the subjective nature of that type of testimony, because other possibilities can also be true, as that opinion 31 | P a g e
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cannot be measured or accurately quantified for the jury. My experience is that in an Assault Family Violence case, outside of medical and biological evidence, most of the State’s experts you will be confronting will be in the areas of soft science.
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In the case of human anatomy, we can accurately predict a person’s heart rate with a scientific device, however, we cannot measure with any accuracy the emotions of that same person. This is an example of hard vs. soft science. This is why sometimes you will see in the counseling notes in an assault case a reference that the victim’s account or statement, and their emotional reaction is consistent with a history of assault. It is also consistent with a history of a person that is lying or numerous other possibilities. If there is physical evidence that has been obtained and connected to the accused that is a hard scientific fact, as opposed to an educated guess based on experience and training. DNA can be established as a hard scientific fact if it is detected and recovered. However, DNA does not in and of itself tell a story. The presence of your client’s DNA does not mean your client is guilty of assault, nor can it rule out any number of defenses that may explain or justify the circumstances of the alleged assault. A more simplistic way of breaking down this process is to perceive that hard science is objective and can be accurately measured and attested to, and soft science is generally subjective and not accurately measured. This is a case of an objective versus subjective scientific basis, and you can initially quantify and prepare for the cross-examination of the State’s Expert on that basis. Therefore, when preparing your cross-examination of the State’s Expert understanding their field of expertise and determining if it involves an objective vs. subjective intent and criteria, is critical to a successful cross of said expert. You will need to educate yourself in that field of expertise, and there are numerous resources that are available to the public and attorneys for that purpose. I cannot provide a comprehensive list in this paper for this purpose, because it is only limited by the type and nature of the field of the expertise of the State’s Expert. Again, when constructing the profile of the State’s Expert we are gathering information regarding their background and opinion, and this necessarily includes what type of resources are generally relied upon in their field of expertise. Once you have determined who the State’s expert is and what is their particular field of expertise (hard vs. soft science), the hard work begins as you now should be outlining your potential cross examination for purposes of trial preparation. At this time, it is helpful to consider and make a determination on three distinct issues: (1) Ranking the Expert, (2) Using a Defense Expert, and (3) The State’s Zero-Sum Game. 3.
Ranking their Expert
Once you have reviewed the offense report and any available opinions from the State’s Expert you should be able to make a determination of what type of witness the expert will be at trial. I usually use a scale of 0 – 3 to rank experts, even my own experts for use at trial. (a) 0 = Would be an expert you can use to our advantage. You can use this expert to develop your defensive theory. You would co-opt this expert for your own use. Generally, this will apply to hard science experts because it is based on a strict scientific method which can be precisely measured. Examples of this would be a DNA expert, medical examiner or toxicologist. 33 | P a g e
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(b) 1 = Neutral is the expert that really does not hurt the defense case. Again, this would normally be a hard science expert because facts and science are not normally subject to some type of false narrative or explanation. However, with a State’s Expert that I rank as neutral, I would be wary of their opinion and just how far the expert may attempt to extend that opinion. I have found that in situations involving this type of expert when they stray from the direct line questioning of their opinion based on science that relevance and speculation objections can be successful and limit the expert’s attempt to opine on issues outside of their field. You may find yourself in a situation upon re-cross that you are attempting to reel in the expert’s opinion because upon re-direct they realized that they were not advocating sufficiently to appease the State. Actually, you may find yourself faced with a law enforcement official whose testimony is factually based but tends to stray from the confines of those facts to illicit an opinion that advocates the State’s theory of the case. (c) 2 = This is an expert that is pro-state. A pseudo advocate for the alleged victim. I have found that most of these experts fall into the realm of the soft sciences. However, for example you could have a situation where a law enforcement official is designated as an expert on gang affiliations or behavior. This is a situation where the State will attempt to demonstrate the fact that certain gangs are prone to XYZ, etc., and relate that opinion to your client’s current case. This is an attempt to disguise soft science as hard scientific facts and should be exposed as such. It is simply an educated guess, one that the expert may be allowed to give, but it is still a guess. We should treat these experts carefully, and not allow their opinion to vary from the exact field of expertise. While we will discuss the use of TRE 705 (Gatekeeper Function of the Court) later in this paper, this is a situation where the use of a “gatekeeper” motion and hearing should be utilized to discover and limit the ability of the expert to opine on certain issues and facts. Unfortunately, in a case involving family violence, law enforcement and other persons such as Cycle of Abuse experts, and therapist/counselors are going to fall into this category. (d) 3 = This expert is just another prosecutor in the courtroom. You need to treat this expert as an adverse party from the moment you start to question them on cross. This will necessarily start on listening to their testimony on direct and making the necessary objections during their direct examination. You will need to have a TRE 705 hearing on this expert and their testimony prior to them taking the stand for direct examination. It is critical to educate yourself both personally and professionally regarding this expert and their testimony. Bias is going to be a key component that will need to be exposed. Do not debate with this witness in front of the jury. Limit their testimony during the 705 hearing and ask only those questions on cross which assist in developing your defensive theory. If the Court is going to allow their opinion into evidence over your TRE 705 objection, do not debate that conclusion with the expert. All that will do is have them repeat this information over and over again. Make your point with this expert, it is sometimes a good strategy to make a chart of sorts and have the expert agree to certain facts which are beyond dispute and ask the question which implies that you do not agree with their conclusion. This is a premise laid question which suggests the answer, and once I am not concerned that the expert did not agree with my suggestion. This is also the type of expert where you will usually have your own expert prepared to testify as the subject matter at issue. Again, 34 | P a g e
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this will be a distinct problem with the use of this type of expert in a family violence case because you will have the therapist, counselor, psychologist, family violence shelter personnel, all appear to advocate on the complaining witnesses’ behalf. It is not about their testimony so much as it is the unbridled disregard some of these types of professionals have when it comes to the accuracy and consistency of the complaining witnesses’ allegation(s). In my opinion these experts are advocates and we will have to treat them as such, however uncomfortable that may be in the context of the trial. 4.
Using a Defense Expert
I believe you make this determination after you have reviewed the offense report and the State’s Expert report. At a minimum if you are not familiar with the exact science and methodology employed by the State’s Expert, I believe it is best to retain your own expert for purposes of consultation. You can determine at a later date whether you want to use your expert for purposes of offering testimony or submitting their own report. Article 39.14 of the Texas Code of Criminal Procedure does not require defense counsel to designate their testifying experts until 20 days prior to trial. The Court can order any party to disclose the names of its expert witnesses that will offer testimony under TRE 702, 703 and 705, no later than the 20th day before the trial begins. See Osburn v. State 59 S.W.3rd 809 (Tex.App. – Austin 2001), affirmed 92 S.W.3d 531 (Tex. Crim. App. 2002). Further, a caveat I would offer is do not designate an expert for purposes of testifying unless you are fairly certain that you need their testimony at trial. Once designated the State’s Expert can comment on your expert’s credentials, and any conversations they had concerning situations where they have sent information to them for review. See Pope v. State 207 S.W.3d 352 (Tex. Crim. App. 2006). Further, it is well settled that the State in closing arguments can comment on the fact that defense counsel failed to call an available and designated expert witness. Id. I am of the opinion that it is always best to investigate, then consult with, and lastly prior to trial designate if I am fairly certain the expert can assist at trial. I am not of the opinion that this is always the case, because I have had occasion to designate an expert and not call them, but it was a trial strategy decision based on the evidence admitted at trial, and I was prepared to argue why it was not necessary for my expert to testify. If you do have the luxury of having your own expert always consult with them regarding how and on what topics to cross examine the State’s Expert. If your expert is going to testify this will prove as an invaluable segue from the subject matter of the State’s Expert opinion and your expert’s opinion. As an example, when reviewing the State’s DNA litigation packet for a certain case, your expert will need that litigation packet for review and consultation with you regarding the case. If I have not designated a DNA expert I would object if they referenced the same just because they knew I had the litigation packet reviewed. In my opinion, that expert is not an available witness as I would have only consulted with them on that information and my conversations with them are privileged. However, you do have to be careful in having your expert converse with the State’s Expert for purposes of gathering information and more importantly the litigation packet on a given scientific topic. At this juncture of the investigation, I have normally made the decision on whether or not my expert can assist me at trial before I would agree to allow them to converse with the State’s expert regarding requesting information 35 | P a g e
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out of the lab’s litigation packet. In some instances, I want the State to be aware of my expert. As an example, the State has certain evidence swabbed for DNA. In my review of the offense report no traces of any DNA are present where I think it should be. I am not a DNA expert so I consult with a DNA expert and retain them because sometimes it is just as important if DNA is not detected on an item tested, under circumstances where you would presume some type of biological evidence would be present. Hopefully, given this type of situation the I am playing chess and the State is still playing checkers. I do not necessarily believe you need an expert to counter the State’s cycle of abuse expert unless it is a situation wherein the expert could assist you in dispelling the State’s contention that a cycle of abuse existed in the relationship. If the family violence allegation involves a child abuse accusation, a child forensic psychologist would be helpful in reviewing and preparing a cross-examination regarding the child’s forensic interview and the behavior and actions of a child witness. 5.
State’s Zero-Sum Game
What do we mean by this in the context of a trial? In my experience trial work involves a lot of critical thinking because we have such a short time to convey a voluminous amount of information to the jury all the while persuading them to agree with us. Keeping that in mind the zero-sum game simply put is a situation where there are two sides, and the resulting outcome is an advantage for one side and disadvantage for the other side. Specifically, there is a winner and there will be a corresponding loser. In trial we cannot afford to compound a win by the State with an expert with a corresponding loss by our expert. In those cases, once we have reviewed the file and investigated, we can determine if we are treating that State Expert as a zero-sum game. If the State’s Expert is sound and the science supports his opinion, we can look to expose any undisputed facts they will have to agree with, but we do not want to give them repeated opportunities to express their opinion. Simply put, how many times do you want the State and the Court to refer to them as an expert. Under those circumstances my belief is that the client is best served by getting that type of expert off the stand as quickly as possible. Further, if your expert agrees with the State’s Expert’s opinion, get that in writing and put it in your file. I would consult with your expert to try and come up with some line of questioning which will slow down that expert’s momentum on the stand, but you cannot afford to debate someone who has the science on their side. This will generally apply to a situation where a hard science discipline is involved and has been subjected to a rigorous testing under the scientific method. In my experience these types of experts can range anywhere from a 1 – 3 in terms of ranking their posture in the courtroom. However, on certain occasions you will confront that State Expert that has a zero-sum mentality. This is a situation where the State’s Expert wants to argue and debate the point with you, as they perceive themselves as the heroin in the State’s case. An expert that adopts a zero-sum mentality is so entrenched in being correct that they shut down the conversation and create a sense of apathy in the courtroom. We all know that expert that no matter what is said or asked of them, they are going to loudly and express their opinion in a very divisive and belittling manner, because they believe it assists them in winning what they perceive 36 | P a g e
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as an argument. I do not like these situations and I do not believe a jury likes them either. The jury is not getting the information they need to assist them in the case. If you find yourself with this type of expert, I find it helpful to listen to the State’s direct examination and within the context of your cross-examination reverse the nature of the question to see if you get the same response. An example would be if the State asked, “Officer when you approached the scene describe the Defendant? He appeared intoxicated and had blood on his hands. I may rephrase the question and add something like, Officer is not it true when you arrived on the scene while you say the Defendant appeared intoxicated, he did not flee the scene and the blood on his hands may have come from the cuts under his eye and forehead. Sometimes many police officers never want to agree with us because they believe we are trying to trick them, but facts are facts. If the officer does not agree with you, I start charting the questions on cross that basically asked the same question on direct but in a different manner, and then illustrate to the jury why the answers are different when the questions are basically the same. If the witness is being combative because they play for the State of Texas, you should be able to expose this to the jury, and in closing suggest their opinion cannot be trusted because they are biased. Science is not biased, and it should not take a side, much like facts. I once spoke to our local sheriff’s department during one of their training sessions and someone in the audience asked me what is the most critical mistake you see law enforcement officers make during cross-examination, and I told them they try to argue with me about what I know the facts to be rather than just testify to what the facts are that existed. This is important because many times certain law enforcement officers who investigated the case are designated as experts, and if they are the investigating the case, I perceive their role first and foremost as a fact gathering machine not an opinionated sycophant for the State. Again, in cases involving an allegation of family violence, I believe that you can guarantee yourself that most of the State’s witnesses will be emotionally vested in the complaining witness, and that includes their therapist/counselor, family violence shelter advocate, and the potential cycle of abuse psychological expert. You have to pick your avenues of attack for cross-examination carefully, because you want to reach a consensus in those areas you can agree, make your point quickly, and do not linger or debate with the witness. If you allow this type of witness to hang around it will turn into an argument, and we then lose the ability to effectively tell our client’s story to the jury. 6.
Why is the State Using this Expert This may be redundant because focusing on why the State is using an expert or a particular type of expert involves who they are and how they are being used. However, I have found that we can take this part of the process a little further in determining why they are being used, and it usually falls into two categories, the latter of which is what I would focus on: (1) Captain Obvious: We know from reviewing the offense report the State must have an expert. In my experience I would say that most of the obvious experts fall into the hard/objective
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scientific arena, and I would normally rank them as a 1 or 2 for purposes of trial preparation. However, you can run into certain hard science experts, such as child abuse experts (medical professionals) who remain adamant despite other potential possibilities, that certain injuries to children are always going to be classified as nonaccidental, which means they are indicators of abuse. We have all been practicing long enough in our respective corridors of the state to know and recognize these individuals. In situations such as this I will likely retain my own expert to consult with to at a minimum confirm the State’s Expert’s findings. In these instances, you should have a fair amount of information available on these experts as their reputations generally precede them. In family violence cases involving allegations of child abuse, I would recommend that you become familiar with the local crisis shelter or children’s forensic interview domain and their connection to your jurisdictions multi-disciplinary team (how they are organized and function). I know in the jurisdiction(s) in which I practice much of this information can be obtained online through their websites or Facebook pages. (2) The Enabling Expert: These experts I would usually rank as 2 or 3 for purposes of classification, and normally fall into the soft/subjective science area and discipline. My experience with the State’s use of these experts is primarily about shoring up or supporting their theory of prosecution and the complaining witnesses’ allegations. We have all seen these types of experts before, such as the counselor who states that the alleged victim’s account and behavior is consistent with trauma induced by assault. Again, we cannot accurately measure trauma or for that matter its exact cause. The State needs this expert to support the outcry of their alleged victim, because in many cases there is no corroborating physical evidence. An example would be a rape case where your client has claimed the defense of consent. Assume the parties had sexual intercourse and it is a he-said /she-said account. No signs of assault or resistance, she was scared for her life. The counselor will undoubtedly come to support their patients recount and the trauma they have experienced. However, I always keep this in mind when considering these situations, garbage in = garbage out. I believe people can convince themselves that they are a victim, and, in that instance, I do not believe you are going to see their counselor not support their version of the events. As I referred to previously, it does not matter that their story is inconsistent or even not logical, the subjective nature of their experience with their patient does not allow them to entertain the idea they are lying or at a minimum exaggerating the known facts. This type of expert plays exclusively for the State so we are not going to convince them we are right or have that Perry Mason moment. Instead, we should be focusing on the facts that we can control and know to be undisputed. Such as: 38 | P a g e
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a. b. c. d. e. f. g. h. i. j. k. l.
Your patient is Ms. Jones, correct? You work for and are an advocate for your patient, correct? You were not present in the apartment on November 4, 2022, correct? You did not see anything happen, correct? Your only account of what happened between your patient and my client is what she told you once she began counseling, correct? We can agree that people will sometimes have to agree to disagree on certain issues? However, we can agree that there were no physical injuries apparent to Ms. Jones, correct? We can agree that she reported there was a struggle, but no injuries were apparent, correct? We can agree that no scratches, bruises, bite marks, red marks, ligature marks were present on her after she says she resisted there was a struggle while she was being raped, correct? We can agree that physical injuries can be interpreted as an indicator of a struggle, correct? We can agree that if there are statements your patient made that were inconsistent with certain established facts that would not change your opinion of her diagnosis, correct? Objectively, you would agree with me that there are no physical or measured signs or evidence of a struggle between your patient and my client on November 4, 2022, correct?
As you can see, I never once debated with her over her opinion or conclusion regarding her patient, because I recognize her as an enabling expert. That counselor is testifying to add credence to the alleged victim’s story. The counselor assumes without hesitation that their patient is a victim, and the State is complicit in this charade by using an expert like this to establish that she is a victim because she went to counseling. We see situations like this all the time where the State designates an expert on family violence and the cycle of abuse. They are not even the alleged victim’s counselor or therapist sometimes, just a person that is called to explain to the jury what family violence is and how it can affect a person. In that instance, you need to have your 705 “gatekeeper” hearing, because I would argue that the probative value of this otherwise inadmissible information is outweighed by the prejudicial effect. I have used experts on “Battered Spousal Syndrome” in self-defense situations, but I do so knowing that this type of evaluation by an expert can be exposed upon cross-examination. Trial, as anything else in life, can be weighed and measured under a risk vs. reward scenario. We take calculated risks at trial, just at the State will do, and the only thing that can circumvent the effectiveness of this type of expert testimony, is to educate yourself on the subject matter, at a minimum get your own consulting expert on the subject matter and understand where your battle is going to be with this witness. It is not a case of changing 39 | P a g e
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their mind, it is a case of showing the jury they are enabling the State and the alleged victim in this false narrative. We should begin to sow the seeds of doubt of the enabler during voir dire, as referenced above. Asking the panel members can we trust a therapist to tell the truth or recognize that their understanding of the truth is limited by what the complaining witness has said to them during their therapy sessions. The counselor or therapist will have to admit that all persons are capable of lying, and that the information they receive from the complaining witness is only as factually accurate and dependable as the source. Again, garbage results in garbage out. Definition of Enabler: Used as a Noun 1. a person or thing that makes something possible: "the people who run these workshops are crime enablers" · o
a person who encourages or enables negative or self-destructive behavior in another: "being an enabler to an addict does more harm than good"
Definition of Enabling: Used as a Verb enabling (present participle) 1. give (someone or something) the authority or means to do something: "the evidence would enable us to arrive at firm conclusions" synonyms: authorize · sanction · warrant · license · qualify · allow · permit · entitle · o
make possible: "a number of courses are available to enable an understanding of a broad range of issues" synonyms: allow · permit · give permission to · give leave to · authorize ·
I think that we can see how these types of experts are utilized by the State, and we not only have to be aware of them, but we have to discover as much information as we can about them and their practice before they testify. Information regarding these types of experts is getting harder to obtain because many prosecutors are moving to quash our subpoenas and 40 | P a g e
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arguing this type of information is confidential and not discoverable. I know this from personal experience because I am seeing the State move to quash more of my subpoena duces tecum requests on this basis, and objecting to my specific discovery requests on these issues. We have to be vigilant, and I would tell you to be aware of the Texas Government Code Chapter 420 Subchapter D, as this now requires us to request and make a showing to the Court as to why this confidential information should be produced. I do not know how I can accurately explain to a court that these types of records contain potential Brady information, when I have not seen the records. While I understand that the victim advocate groups are pushing the narrative that by getting this information, we are re-victimizing the survivor, but what about our constitutional protections of right to counsel, effective representation, and due process of law. My experience now is that the State will not even agree to produce these confidential records for “in-camera” inspection, which I have been agreeable to, because I have not met the requirements under Texas Government Code Chapter 420. So, this fight continues, and we will need to argue for our client’s due process rights in obtaining this information so we can effectively prepare for cross-examination of the alleged victim. However, it does not change my initial preparation for an enabling State’s expert, because I know going in there are five critical points to remember: 1. 2. 3. 4. 5.
They work for and advocate for their patient = alleged victim. You are never going to change their mind or reasoning. The strength of your cross lies in their unwavering support of the alleged victim. They cannot disagree with the facts that are beyond dispute. When you question them never let them rationalize or explain the meaning or context of those facts beyond dispute.
Using this type of approach and outline, as well as making sure that they stay in their lane can be successful at trial.
VIII. Cycle of Abuse The “Cycle of Abuse” is a pattern that has been used by professionals in the field that assist in identifying a pattern of abuse in a relationship. This process is a four-part pattern used to identify abuse in relationships. The cycle is said to continue because of the power imbalance which exists in the relationship. This is generally taken to mean that one party has direct control and hold over the other party. To gain some perspective on this theory of relationship dynamics pertaining to abuse, we need to briefly examine its origin. This concept of the abuse cycle was researched decades ago when Dr. Lenore Walker, a psychologist, developed “cycle of abuse” as a social cycle theory in 1979 to explain what she determined were patterns of behavior in an abusive relationship. This phrase is also used generally to describe any set of conditions which perpetuate abusive and dysfunctional relationships. Dr. Walker interviewed 1,500 women who had been subjected to domestic violence and determined there were similar patterns of abuse and labeled these patterns 41 | P a g e
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“cycle of abuse”. Dr. Walker initially proposed that the “cycle of abuse” described patriarchal behavior in men who felt entitled to abuse their spouse in order to maintain control over them. Dr. Walker implemented terms such as “the battering cycle” and “battered woman syndrome” to this discussion. The term “cycle of abuse” was used predominately for different reasons, such as: 1. Maintain objectivity because this “cycle of abuse” does not always lead to physical abuse; and 2. Symptoms of the syndrome have been observed in both men and women and are not necessarily limited to marital and dating relationship. Critics of this theory have long argued and suggested that it was based upon an inadequate research criterion, and therefore cannot be generalized as was promulgated by Dr. Walker. There are four phases of the “cycle of abuse” consisting of (1) Tension Building, (2) Incident, (3) Reconciliation, and (4) Calm. As promulgated by the experts that generalize and support applying this theory of abuse to every situation involving such an allegation, the “cycle of abuse” will usually follow the above stated order and repeat until the conflict and relationship is terminated. This cycle can repeat itself hundreds of times over the course of an abusive and dysfunctional relationship and can take only a few hours or more than a year to run its course. The four phases are described as follows: (1) Tension Building: The pressures of the relationship build up through various contributing factors such as, problems in the marriage, conflicts over children, misunderstandings, other family conflicts, illness in the family, legal problems, financial distress, or catastrophic events (war which affects family members or natural disasters). During these stressful periods the tension builds because the abuser feels threatened in the relationship, ignored, or wronged. This type of tension can last minutes, hours, days, or months. (2) Incident: This is the stage during which the abuser commits an act or acts to attempt to dominate and control their victim. This outburst of violence and abuse may be verbal, psychological, or physical. This release of energy by the abuser reduces the tension build up and may result in the abuser expressing to their partner that they had that coming. (3) Reconciliation: After commission of these acts of abuse, however, they occurred, the abuser will begin to experience remorse and feel guilty about their actions. The victim of the abuse may feel pain, fear, humiliation, disrespect, and confusion and mistakenly reach the conclusion they are responsible. After the violence has ended the abuser assures their partner it will never happen again, shows affection, and apologizes about the incident. The abuser may even give substantial gifts and show a great amount of love and affection toward the victim. The abuser may also use threats or actions involving self-harm, such as suicide, to gain sympathy or stop the victim from leaving the relationship. (4) Calm: 42 | P a g e
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During this phase the relationship is blissful and calm. Often called the honeymoon phase. It may include the abuser continuing to seek forgiveness and perhaps even agreeing to counseling. The sex and gift giving may be over the top at times during this phase. The apologies and request for forgiveness dissipate over time, and eventually the abusive behavior returns, and the cycle repeats itself. See
Domestic Violence: Causes and Cures and Anger Management, Willis C. Newman, Esmeralda Newman, May 12, 2010 ISBN 789-1-4528-4323 page 9.
See
Physical Abusers and Sexual Offenders: Forensic and Clinical Strategies, Scott Allen Johnson, CRC Press: July 13, 2006 page 31.
See
The Battered Woman, Lenore E. Walker, New York: Harper and Row (1979).
See
Helping Her Get Free, Susan Brewster, Seal Press ISBN 1-58005-167-7, 2006.
As stated previously, over the years there have been critics of Dr. Walker’s theory of “cycle of abuse”, claiming it was too simplistic and general. Scott Allen Johnson developed a 14-stage cycle that broke down the tension building, incident, and calm stages in more detail. Donald Dutton and Susan Golant agree that Dr. Walker’s “cycle of abuse” describes all of the cyclically abusive relationships they studied but noted that her initial research was based almost solely on anecdotal data from a small subset of 1500 women who were in abusive relationships. Dr. Walker specifically noted in her research that the women studied were not randomly selected and they cannot be considered a legitimate data base from which to make specific generalizations. See The Batterer: A Psychological Profile, Donald G. Dutton and Susan Golant, ISBN 0465033881, 1997. See
Physical Abusers and Sexual Offenders: Forensic and Clinical Strategies, Scott Allen Johnson, CRC Press: July 13, 2006 pages 31-35
As you can see even the experts cannot agree on the development, specific characteristics and the generalized conclusions which can be reached in explaining the “cycle of abuse” and its application to situations involving domestic violence. Therefore, you will have to become familiar with this theory as the State may likely call such an expert in a family violence case to explain the recantation of an allegation or abuse, why law enforcement was not initially called, or why the victim would return to an abusive relationship. The problem with this theory is just that, the State’s expert will probably testify in generalities to explain this behavior, but this type of behavior can also be consistent with a spouse that fabricates an allegation of abuse because they are angry, jealous, or frustrated with your client. The source of the information is critical, and the “cycle of abuse” while an established and accepted theory of abuse and dysfunction within a relationship, does not apply to a fabricated allegation. The State’s expert was not present during the alleged abuse, so you will have to treat this expert as such, reminding the expert they were not present, and their opinion is limited to only the hypothetical and not the actual factual events. Often, you can limit this type of expert’s impact at trial by breaking down the four phases of the “cycle of abuse” by emphasizing a missing phase or factor of a phase of the cycle itself. These types of experts often will be an advocate for the alleged victim or the State’s overall prosecuting strategy of stopping family violence. Again, you will need to address
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this type of expert with that in mind and remember to not debate this type of expert. Make your salient points regarding the facts of this case not meeting the pattern of abuse and identify this type of expert as an advocate, so the jury sees they have an agenda. If possible, find out as much information as possible on this type of expert, including any copies of transcripts of their previous testimony, how many times they have testified for the State, and their training and educational background. Very often, these experts are outspoken advocates within their industry and profession, so gathering information on their background and training is not as difficult as you might imagine. If you have funds available, you may consider retaining your own expert to consult on this issue and preparing for cross-examination of the State’s expert on the theory of “cycle of abuse”. You will also want to file a Motion to Voir Dire the State’s Expert, as this will require the Court to conduct what we commonly refer to as a 705 Gatekeeper Hearing. This is the manner in which you can inquire about the State’s expert’s work experience and educational background, and their review of certain facts pertaining to the case and any opinions they may hold which are applicable to the case. This is also the process by which you challenge the admissibility of this type of expert opinion by asserting it is not trustworthy and cannot assist the jury. Becoming familiar with the “cycle of abuse” will enable you to prepare and confront this type of State’s expert which is critical to preparing your defensive trial strategy.
IX. Pre-Trial Motions The use of certain pre-trial motions is required in most family violence assault cases whether the alleged victim is an adult or a child. In a family violence assault case, I will generally file the following motions at the very beginning of my representation of the client: 1. 2. 3. 4. 5.
Motion to Designate Experts; and Motion for Voir Dire of State’s Experts (TRE 701-705); and Motion for Notice of Extraneous Offenses (TRE 404 (b) and TCCP 38.37); and Request for Hearing Outside Presence of the Jury TRE 403); and Motion for Discovery of Arrest and Conviction Records of State’s Witnesses. (This excludes law enforcement personnel, as the State should give you some type of “Brady” notice if any of their law enforcement witnesses have past criminal convictions)
I prefer to file these types of motions early in the case, to get ahead of how the State expects me to proceed. As to the specifics of receiving discoverable materials from the State, I will generally send the State a discovery and notice letter, which sets out specific materials I am requesting in accordance with TCCP Art. 39.14. Once I have received the offense report and other discoverable materials from the State, it is at that point that I will make a list of potential documents and information which I believe need to be collected and reviewed. This list of documents and information which need to be 44 | P a g e
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collected may vary based on the type of sexual assault with which the client is charged, and the circumstances surrounding the allegation. Abuse Case Involving a Child – General Documents to Collect 1. 2. 3. 4. 5. 6.
School Records Counseling/Therapy Records CPS Records Psychological Records Medical and Hospital Records Court Records
Abuse Case Involving an Adult – General Documents to Collect 1. 2. 3. 4. 5.
Counseling/Therapy Records Court Records Psychological Records Medical and Hospital Records Employment Records
You can file a general and specific Motion for Discovery to collect this type of information. I do not always file a general Motion for Discovery, unless I am having difficulty getting information from the State or I believe there are gaps in the information I have received. Once I have reviewed the discoverable materials and offense report I will begin to draft and file specific or supplemental Motions for Discovery, where I am requesting certain detailed information from the State. In following up on this issue with a specific or supplemental Motion for Discovery, I will request that the information be produced, but if the information is not in the State’s possession or is not readily obtainable by the State, I will request that the Court order that I shall be allowed to subpoena said records “in camera” to the Court for review. On occasions certain entities will not respond to a subpoena request for records, but if I attach a copy of the Court’s Order stating I can subpoena the records “in camera”, I will generally receive the records after the Court’s “in camera” inspection is complete. Procedurally, if the Court refuses to give you the subpoenaed records after the “in camera” inspection, you need to object to the Court’s decision regarding this issue and have all the records marked as a sealed Defendant’s Appellate Exhibit. A specific Motion for Discovery can be a useful tool in pointing out to the State that there are problems with the case, and it requires additional investigation. This lack of information or an incomplete investigation can lead to productive plea negotiations and a potential resolution of the case, without having to proceed to trial. Your efforts in attempting to draft a general or specific Motions for Discovery should mirror your work in subpoenaing any necessary records or information. As such, always follow up your Motion for Discovery with any applicable subpoena request. I do not consider these efforts duplicative or repetitive, but thorough. One way or another you need to get this information, as your defense strategy will likely depend on it. As you begin to collect and gather information, depending upon the circumstances of the client’s case, you will invariably need to retain an investigator and/or certain experts. In court appointed cases or those cases in which you may have been retained but 45 | P a g e
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your client has no other available resources for an investigator or expert(s), you will need to request funds from the Court to retain these types of professionals. I will almost always file motions for experts “Ex Parte” as motions filed in this regard will have some information which can infer or tip your trial strategy. I will not usually file a motion to authorize funds for an investigator “Ex Parte”, because I do not believe it involves trial strategy, but this motion can also be filed “Ex Parte” so long as you illustrate to the Court it involves an issue concerning your trial strategy. From a practical standpoint I don’t file any motions requesting funding for an investigator “Ex Parte”, because your investigator is usually out in the community following up with witnesses and sometimes is getting information directly from law enforcement personnel. If the Court denies any “Ex Parte” motion filed by you requesting investigator or expert assistance, you will need to request that the Court provide you a hearing outside the presence of the State, such that you can enumerate on the record the reasonableness and necessity of your request. As a matter of being thorough in drafting any “Ex Parte” motion for an investigator or expert, you should articulate with specificity the following: 1. You expect the State to have available to it and to present at trial certain testimony attributed to an expert or investigator, which you as legal counsel are not qualified to interpret or rebut for that purpose; and 2. How the specific professional services you are seeking are necessary to your client’s defense; and 3. Elaborate on the necessity and reasonableness, given the circumstances of your client’s case, for you to have access to these professional services for assistance in trial preparation and through trial; and 4. Detail to the Court that if you are not provided with access to the specific type of professional services requested, you may not be able to provide your client with effective assistance of counsel while investigating the facts of your client’s case and through trial; and 5. When detailing the funding required, you should put in the motion, based on your conversation with qualified experts, what you expect an initial retainer to be, include a reference to the proposed expert’s hourly rate and number of hours estimated (if applicable), and ultimately the estimated total expense of these types of services through trial; or 6. If you have a specific professional in mind to provide the services you require, put in the individual’s name, their professional title, and their fee structure. (I will sometimes attach their CV and fee estimate as an exhibit to the motion) 7. In order to properly preserve error, this type of “Ex Parte” motion is required to be sworn to or have an attached affidavit supporting same. The supporting affidavit can be signed by the expert you intend to use which specifically describes the services to be provided and necessity of the services requested. If you request and receive a hearing on an “Ex Parte” motion for funding, this satisfies the requirement that it otherwise be sworn to or supported by affidavit. However, whether you have previously sworn to the motion or support same by affidavit, I would insist that the court schedule a “Ex Parte 46 | P a g e
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hearing regarding same, such that you can elaborate and expand upon your rationale for the requested funding. Generally, I have not had to file sworn “Ex Parte” motions in order to receive requested funding, but I do notify the Court if they intend to reduce or deny the requested funding that I will require an “Ex Parte” hearing to preserve same for purposes of appeal. It has been my experience that this request will normally satisfy the Court’s inquiry regarding same, and I have not had to present further information or swear to the motion itself to have same granted. However, if you are practicing before a Judge who is not prone to grant funding requests in non-capital cases, then I believe that you must swear to this type of motion or support same with an affidavit from your chosen expert and set same for an “Ex Parte” hearing before the Court. It is my opinion that how you initially present an “Ex Parte” motion for funds to the Court is tactical decision you must make as the trial attorney based on your relationship and prior history with Court. Over the last couple of years, I have had several cases in which it has been necessary to file a Motion to Quash. Specifically, those motions have dealt with the issue of recklessly, as that specific term is sometimes used in an indictment or the fact that the indictment does not charge the offense in ordinary and concise language, such that your client has notice of that which he or she finds themselves charged with. This issue does not come up very often in sexually related cases, because the conduct in question is alleged as intentionally and knowingly, and not recklessly. However, there are some situations in which the sexually related case is accompanied with an aggravated assault count in which a reckless form of conduct is alleged. There is also the situation where based upon the convoluted nature of the allegation, the State has a difficult time articulating in the indictment just how your client committed a criminal offense, such as a case where an attempted offense is alleged. The purpose of a motion to quash is to give notice to the Court that the State’s indictment does not provide the degree of certainty necessary to give the Defendant notice of the particular offense with which he or she is charged. Further, an indictment must specify the manner and means by which the Defendant has committed the offense. I would leave you with this thought regarding filing a motion to quash, if after reviewing the State’s indictment against your client you do not have a clear and concise understanding of the following, you need to file a motion to quash: 1. Who your client accused of assaulting (child case may involve the use of a pseudonym); and 2. The general circumstances of the accusation; and 3. The manner and means by which your client is alleged to have committed the assault (ie: use of a weapon, striking with hands or feet, or threats made).
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X. Rules & Procedures to Know Texas Rules of Evidence Which can Impact Assault Family Violence Cases: 1. Rule 403 [Relevance Balancing Test] You can and should request a gatekeeper hearing outside of the presence of the jury regarding the prejudicial effect of certain types of evidence, should the Court have overruled your basic objection as to relevance under Rule 401. You should object and explain to the Court that if the Court has found the evidence to be relevant, you would further move to exclude the evidence under Rule 403 in that the probative value of the evidence is substantially outweighed by its prejudicial effect. You can require that the Court engage in a balancing test based upon an objection made under Rule 403. See Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999). Gigliobianco v. State, outlines the 6 distinct issues that the Court must balance and consider under a 403 analysis, as follows: (a) Inherent probative force of the proffered evidence along with (b) Proponent’s need for the evidence against (c) Any tendency of the evidence to suggest decision on an improper basis (d) Any tendency of the evidence to confuse or distract the jury from the main issues of the case, (e) Any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (f) Likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. See Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006). 2. Rule 412 [Evidence of Previous Sexual Conduct – Rape Shield Rule] This rule has limited applicability in an Assault Family Violence case but can apply when the assaultive allegations are coupled with other allegations including rape. In an Assault Family Violence case this rule will usually only apply in those cases which involve adults. In those instances, generally speaking reputation/opinion evidence and evidence of specific instances of sexual conduct are not admissible. There are exceptions to this general rule of exclusion such as: a. Evidence is necessary to rebut or explain scientific or medical evidence offered by the State (i.e.: the tears to the anus were due to another sexual encounter).
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b. Evidence is offered on the premise to establish the previous sexual behavior between the accused and the victim, for purposes of establishing consent. Note: If the state offers testimony to establish the relationship between the parties, you should certainly attempt to introduce this type of evidence because the State has opened the door. c. Motive or bias of the alleged victim. d. Constitutionally required, and e. Probative value outweighs the danger of undue prejudice. If you intend to introduce this type of evidence, prior to questioning the alleged victim, you must inform the court and request a hearing outside of the presence of the jury. The Court will then conduct an “in camera” hearing, recorded by the court reporter, to determine what if any evidence of this type will be admissible, and will limit questioning accordingly. After concluding this hearing, the Court will seal the entire contents of the “in camera” hearing which was conducted for appellate purposes, and the record shall be sealed. If you are limited or otherwise prohibited from questioning the alleged victim under Rule 412, you must make a record and object, and require the Court to conduct a mandatory “in camera” hearing, and as such, you have effectively made the Court a gatekeeper of this evidence for purposes of appeal. 3. Rule 703 [Expert Opinions] An expert can rely on basically any evidence including hearsay evidence, which would otherwise be inadmissible, in forming the basis of an opinion, so long as it is the type of information, facts or data reasonably relied upon by experts in a particular field. 4. Rule 704 [Expert Can Give an Opinion on an Ultimate Issue] If the Expert gives an opinion regarding an ultimate issue in the case, to be decided by the jury (i.e.: causation), it is not objectionable because it involves an ultimate issue reserved to the jury. Note: While I understand the meaning of this rule, if the prosecutor asks an expert did my client sexually assault that child or person, I am going to object because that goes beyond the ultimate issue itself and is an attempt to usurp the jury’s function. This objection may not work, but fundamental fairness and due process of law should require the Court to not allow such testimony as unfairly prejudicial. 5. Rule 705 [Gatekeeper Hearing] The Court, upon request generally in the form of a pre-trial motion and/or notice, require that the expert appear and testify under a type of voir dire process, outside the presence of the jury, regarding their opinion and the underlying facts and data supporting said opinion. For the expert to be allowed to testify as to their opinion, it must be established that there is a sufficient basis for their opinion, otherwise the opinion is inadmissible. Further, the Court 49 | P a g e
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can conduct a balancing test when the underlying facts and data would be otherwise inadmissible, if the danger exists that they will be used for a purpose other than as an explanation or support for the expert’s opinion is outweighed by their unfairly prejudicial value. In this instance, you can request a limiting instruction. Note:
Keep in mind that the Texas Rules of Evidence, are in fact rules of exclusion, with some exceptions. In cases involving sexual assault or aggravated sexual assault you need to have a firm command of these rules of evidence, and the applicable case precedent, to successfully defend your client and preserve error for appellate purposes.
6. Rules 404 (b) [Extraneous Offenses] Other crimes, wrongs, or acts are not admissible to prove the character of a person to show action in conformity therewith. However, this type of evidence may be admissible for limited purposes such as to prove (1) motive, (2) opportunity, (3) intent, (4) preparation, (5) plan, (6) knowledge, (7) identity, (8) absence of mistake or accident. Must request notice and/or file a motion requesting notice. If you file a motion requesting notice you must get it ruled on and request a certain time frame in which to receive this information in advance of trial. You will need this time to investigate the nature of the alleged extraneous offenses. Even if the state gives proper notice, you must make the State make an appropriate and sufficient proffer to the Court regarding the extraneous conduct allegation. Always request a hearing outside of the presence of the jury such that you can cross examine the State’s witnesses regarding this proffer of proof. The Court must make a finding, at the conclusion of this proffer, that the jury could find that the extraneous conduct was committed beyond a reasonable doubt. You must require the Court to make this finding on the record, and subject to your continued objection. You should also request that the State premise on which basis and for what purpose under 404(b) the State requesting that the jury consider this evidence. Once the evidence and/or testimony is admitted, over your objection, you must request a limiting instruction regarding the evidence and/or testimony. If you do not follow these steps in some form, you will not preserve your objection for purposes of appeal, and you will not be entitled to a jury instruction regarding the extraneous conduct. Important Cases: Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008) Extraneous offenses type evidence may be admissible to rebut defensive theories of fabrication, frame up, or retaliation.
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Therefore, be aware of fact if you believe the child is lying because the mother is retaliating against you for some reason, you may have just opened the door to an otherwise inadmissible extraneous act. Daggett v. State, 187 S.W.3d 444 (Tex. Crim. App. 2005) Leaving a false impression with the jury. If a defendant makes a general statement like I would never have sex with a minor, he may have opened the door to a relevant act or character trait. An extraneous act which tends to rebut such testimony may be admissible to impeach the defendant. However, when evidence of this nature is introduced at trial the jury may not consider it as substantive of the charged offense, but only as evidence that the defendant misrepresented himself. Note: Ultimately, this rule of evidence is used in conjunction with TCCP 38.37 in child sexual assault cases, to introduce all types of extraneous acts to leave the impression with the jury that your client did it once, so therefore it is logical to assume he did it again. Our recourse is to continue to object and hold the State to its burden regarding the proffer of testimony and/or evidence and require the Court to do its job in assessing the credibility of the testimony and/or evidence and give the Defendant an appropriate limiting instruction. Articles of TCCP Which can Impact Assault Family Violence Cases 1. TCCP 38.07 [Testimony in Corroboration of Victim of Sexual Offense] This provision provides that a conviction for Sexual Assault, and Aggravated Sexual Assault is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is said to have occurred. This provision does not apply to on offense where the alleged victim is 17 years of age or younger; a person 65 years of age or older; or a person 18 years of age or older who because of age or physical or mental disease, defect, or injury was substantially unable to satisfy the person’s need for food, shelter, medical care or protection from harm. 2. TCCP 38.071 [Testimony of Child who is Victim of Offense] This provision provides the Court with guidance regarding the hearing to conduct in which the court determines that a child who is less than 13 years of age would be unavailable to testify in the presence of the defendant about an allegation regarding Indecency with a Child, Sexual Assault, and Aggravated Sexual Assault. There are other criminal offenses to which this section applies but have no application in this paper. This provision basically provides the Court with the parameters and guidelines by which it must determine during a hearing how and if the recorded statement of a child, made before the indictment is returned or complaint filed, is admissible into evidence. This provision allows for the child to testify in another room other than the courtroom and be viewed by the jury. This provision also allows for the propounding of written interrogatories to the child. If the Court determines 51 | P a g e
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that the testimony of the child is to be taken under Sections 3 or 4 of this article or if the Court finds that the testimony of the child taken under Subsection 2 or 5 of this article is admissible into evidence, the Court may not require the child to testify in Court at the proceeding for which the testimony was taken, unless the Court finds there is good cause. There are additional provisions for how the questioning and cross examination is to take place, and if the child is required to testify in Court, the reasonable steps necessary to protect the child’s psychological well-being including allowing the child to testify via closed circuit video. Note:
Be aware of the confrontation clause if this issue is raised, and object and require the Court to conduct the required hearing and argue that any type of accommodation which does not provide you with the ability to adequately cross-examine the alleged child victim violates the tenants of the confrontation clause of the U.S. Constitution.
Coronado v. State, 351 S.W. 315 (Tex. Crim. App. 2011) A list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is not a constitutional substitute for live cross-examination and confrontation. (Videotape procedures under Art. 38.071, §2, with use of written interrogatories in lieu of live testimony and cross-examination, did not satisfy Crawford v. Washington). 3. TCCP 38.072 [Hearsay Statement of Certain Abuse Victims] The outcry statement is the statement made by the child regarding the alleged assault to the first person 18 years of age or older describing in sufficient detail the alleged offense. The statement must be otherwise admissible under Article 38.37 of TCCP and Rules 404 and 405 of TRE. This article applies only in cases in which the child which makes the statement is less than 14 years old. A statement which meets the description as provided for under Subsection (a) of 38.072 is not inadmissible as hearsay if the State gives notice of its intent to use said statement, provides the subject matter of the statement, and by whom the statement is made. The Court shall conduct a hearing outside of the jury’s presence to determine if the statement is reliable. Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) The outcry witness is the first person 18 years of age or older, to whom the child makes a statement that is some discernable manner describes the alleged offense. Note:
You do not necessarily need to request notice of the outcry, as it is specifically required by statute if the State intends to use such a statement.
4. TCCP 38.37 [Evidence of Extraneous Offenses or Acts] This provision under Sec. 1 allows the State to use evidence of other crimes, wrongs, acts, if committed against a child victim less than 17 years of age for its bearing on relevant matters, 52 | P a g e
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including the state of mind of the defendant and the child; and the previous and subsequent relationship existing between the defendant and the child. This is in addition to and in some cases circumvention of TRE 404 and 405. This is the way the State attempts to circumvent the requirements of TRE 404 (b) and its limited use regarding other crimes, wrongs, or acts, which may have been committed by the Defendant. You should always request notice of extraneous offenses by way of a filed notice request and/or motion. If you file a motion requesting notice you must get a ruling and order stating how many days prior to trial, must the State give you notice of said extraneous acts. Under Sec. 2 of this article, if the State gives you at least 30 days’ notice of its intent to introduce evidence that the defendant has committed a separate criminal offense which is listed under Sec. 2 ((a) (b)) – (basically all listed offenses which are sexually related offenses), they are entitled to admit same into evidence for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. This is basically the kitchen sink approach when it comes to extraneous offenses and their admissibility at trial. The hearing must be conducted outside the presence of the jury for the Court to determine whether a jury could find that the separate offense was committed beyond a reasonable doubt. Note:
Always object to any evidence coming in under this article and request the appropriate limiting instruction. Also, you should object to relevance under TRE 403, after you have sufficiently objected to this evidence on other grounds.
5. TCCP 38.371 [Evidence in Prosecutions of Certain Offenses Involving Family Violence] Between this article and TCCP 38.37, the State can put our clients to trial over any allegation, whether they have requisite proof or not because they have the ability to convict a defendant of the charged offense, because he has previously been convicted of a similar type of criminal offense. This statute can become troublesome as it applies to all cases involving assault, and aggravated assault. The problem with this article is that the State may now introduce this type of evidence, subject to the TRE or any other applicable law, and so long as it would assist the jury. While this provision does not allow the presentation of character evidence that would be otherwise inadmissible under the TRE or other applicable law, either party may offer testimony or other evidence of all relevant facts and circumstances that would assist the jury in determining whether the defendant committed the offense, including testimony or evidence regarding the nature of the relationship between the defendant and the alleged victim. 53 | P a g e
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Note:
The applicability of this specific article will not likely come up very often in a case involving sexual or aggravated sexual assault, unless the State has charged in a multi count indictment, allegations of sexual assault and aggravated assault. The jury can only consider this type of evidence for determining those acts as alleged in said multi-count indictment if one of the counts involves a type of family violence assault. You may want to consider requesting that the aggravated and/or other type of assaultive offense be severed from the allegations regarding sexual assault on this very basis. This is because, regardless of the limiting instruction given or the jury instruction requested, information of this nature if admitted will likely be considered by the jury for all purposes.
Note:
I would request notice similar to the manner in which notice is requested under TRE 404 (b) and TCCP 38.37. I would also require the State to make a sufficient proffer outside of the jury’s presence, and request that the State determine if a jury could find that the defendant committed the alleged extraneous act beyond a reasonable doubt.
You should become very familiar with these articles under the TCCP, as they can be extremely pertinent and relevant in defending an Assault Family Violence allegation.
XI. Collateral Consequences of a Finding of Family Violence & Assault Family Violence Conviction While many of the consequences surrounding an arrest conviction of Assault Family Violence are obvious, you still need to be aware of the repercussions to this type of situation which results in a conviction and subsequent finding of family violence. I am not going to go into great detail regarding the collateral consequences of this type of criminal allegation and conviction, but merely want to point you in the right direction to be aware of the situation where your client faces a conviction and its consequences. 1.
Protective Orders
In addition to being arrested for Assault Family Violence your client may find himself in a situation where the local prosecutor or even a private attorney, if the assault is connected to a divorce or child custody situation, will seek a protective order. The party seeking a protective order may end up initially consulting with the local family violence shelter, legal aid, county or district attorney’s office, or hire a private attorney. There is even a DYI protective order kit available online at TexasLawHelp.org. As such, there is not a lack of resources for alleged victims seeking this type of assistance. If retained early in the process and the alleged victim is seeking a protective order, you will need to make sure you make an appearance on your client’s 54 | P a g e
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behalf and treat this process as a type of preliminary hearing. In a situation where the assault is obvious, I do not believe your client should testify at this stage of the process, but you should do everything you can to avoid a finding of family violence. This is because a finding of family can in some instances result in your client’s visitation and access to their children being restricted and supervised, and have other collateral consequences as discussed below. A protective order is usually sought for a period of two years or less, but in some instances, it can be sought for a longer period of time based upon the discretion of the Court if it makes the appropriate findings under Texas Family Code § 85.025 (a-1). Duration of Protective Order - Texas Family Code § 85.025 (a) Except as otherwise provided by this section, an order under this subtitle is effective: (1) for the period stated in the order, not to exceed two years; or (2) if a period is not stated in the order, until the second anniversary of the date the order was issued. (a-1) The court may render a protective order sufficient to protect the applicant and members of the applicant's family or household that is effective for a period that exceeds two years if the court finds that the person who is the subject of the protective order: (1) committed an act constituting a felony offense involving family violence against the applicant or a member of the applicant's family or household, regardless of whether the person has been charged with or convicted of the offense; (2) caused serious bodily injury to the applicant or a member of the applicant's family or household; or (3) was the subject of two or more previous protective orders rendered: (A) to protect the person on whose behalf the current protective order is sought; and (B) after a finding by the court that the subject of the protective order: (i) has committed family violence; and (ii) is likely to commit family violence in the future. (b) A person who is the subject of a protective order may file a motion not earlier than the first anniversary of the date on which the order was rendered requesting that the court review the protective order and determine whether there is a continuing need for the order.
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(b-1) Following the filing of a motion under Subsection (b), a person who is the subject of a protective order issued under Subsection (a-1) that is effective for a period that exceeds two years may file not more than one subsequent motion requesting that the court review the protective order and determine whether there is a continuing need for the order. The subsequent motion may not be filed earlier than the first anniversary of the date on which the court rendered an order on the previous motion by the person. (b-2) After a hearing on a motion under Subsection (b) or (b-1), if the court does not make a finding that there is no continuing need for the protective order, the protective order remains in effect until the date the order expires under this section. Evidence of the movant's compliance with the protective order does not by itself support a finding by the court that there is no continuing need for the protective order. If the court finds there is no continuing need for the protective order, the court shall order that the protective order expires on a date set by the court. (b-3) Subsection (b) does not apply to a protective order issued under Subchapter A, Chapter 7B, Code of Criminal Procedure. (c) If a person who is the subject of a protective order is confined or imprisoned on the date the protective order would expire under Subsection (a) or (a-1), or if the protective order would expire not later than the first anniversary of the date the person is released from confinement or imprisonment, the period for which the order is effective is extended, and the order expires on: (1) the first anniversary of the date the person is released from confinement or imprisonment, if the person was sentenced to confinement or imprisonment for more than five years; or (2) the second anniversary of the date the person is released from confinement or imprisonment if the person was sentenced to confinement or imprisonment for five years or less. 2.
Presumption of Managing Conservator
If the Court makes a finding of family violence in a disposition of an Assault Family Violence case or a protective order hearing, your client may find himself automatically disqualified from being considered to be appointed joint managing conservators of their children under Texas Family Code § 153.131 (b). Presumption That Parent to Be Appointed Managing Conservator - Texas Family Code § 153.131 (a) Subject to the prohibition in Section 153.004, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be 56 | P a g e
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appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. (b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection. History of Domestic Violence or Sexual Abuse – Texas Family Code § 153.004 (a) In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit. (b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault in violation of Section 22.011 or 22.021, Penal Code, that results in the other parent becoming pregnant with the child. A history of sexual abuse includes a sexual assault that results in the other parent becoming pregnant with the child, regardless of the prior relationship of the parents. It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child. (c) The court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator. (d) The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that: (1) there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit; or (2) the parent engaged in conduct that constitutes an offense under Section 21.02, 22.011, 22.021, or 25.02, Penal Code, and that as a direct result of the conduct, the victim of the conduct became pregnant with the parent’s child. (d-1)Notwithstanding Subsection (d), the court may allow a parent to have access to a child if the court: (1) finds that awarding the parent access to the child would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child; and (2) renders a possession order that is designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent and that may include a requirement that: (A) the periods of access be continuously supervised by an entity or person chosen by the court; (B) the exchange of possession of the child occur in a protective setting; (C) the parent abstain from the consumption of alcohol or a controlled substance, as defined by Chapter 481, Health and Safety Code, within 12 hours prior to or during the period of access to the child; or (D) the parent attend and complete a battering intervention and prevention program as provided by Article 42.141, Code of Criminal Procedure, or, if such a program is not 57 | P a g e
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available, complete a course of treatment under Section 153.010. (e) It is a rebuttable presumption that it is not in the best interest of a child for a parent to have unsupervised visitation with the child if credible evidence is presented of a history or pattern of past or present child neglect or abuse or family violence by: (1) that parent; or (2) any person who resides in that parent’s household or who is permitted by that parent to have unsupervised access to the child during that parent’s periods of possession of or access to the child. (f) In determining under this section whether there is credible evidence of a history or pattern of past or present child neglect or abuse or family violence by a parent or other person, as applicable, the court shall consider whether a protective order was rendered under Chapter 85, Title 4, against the parent or other person during the two-year period preceding the filing of the suit or during the pendency of the suit. (g) In this section: (1) “Abuse” and “neglect” have the meanings assigned by Section 261.001. (2) “Family violence” has the meaning assigned by Section 71.004. As is evident from a perusal of these sections of the Texas Family Code, one can gather that a finding of family violence and/or a conviction of Assault Family Violence, can render a healthy and future ongoing relationship between your client and their children unlikely. I handle a fair number of divorces and child custody disputes and I can tell you that a finding of family violence in any forum can make it extremely difficult for your client’s future relationship with their children. Once a finding such as family violence is made or a conviction of Assault Family Violence is rendered make no mistake that in a contested divorce or child custody dispute, the opposing side will use this information at will to disturb and disrupt your client’s relationship with his children. Again, if at all possible, in defending these types of cases you should avoid the conviction and if possible, any family violence finding. Further, it is possible that this type of conviction may prohibit you from adopting children in the future. 3.
Right to Possess of Firearm
In Texas, if you are convicted of Assault Family Violence, you will forfeit your right to possess a firearm under Texas law for a period of 5 years after you have been discharged or released from the penalty of your conviction (ie: discharge your jail-prison sentence or complete your probation). If your resultant conviction is a felony, you may not possess a firearm for at least 5 years from your discharge from the offense (ie: completion of your prison sentence or probation), and then only in your home. This is the restraint exercised under the Texas Penal Code for possession of a firearm following a conviction for Assault Family Violence. Under federal law, you cannot possess a firearm under any circumstances if you have been convicted of Assault Family Violence as provided for under United States Code § 922 (g). This type of conviction and/or finding is the gift that keeps on giving, such is the reason you must be very aware of the consequences that befall the client when convicted of this kind of criminal offense. In Texas, this type of development can literally change the way an individual has to live, as their ability to hunt with a firearm is restricted and prohibited. Possessing a firearm after this type of criminal conviction may lead to subsequent and more serious criminal charges being filed both at a state and federal level. 58 | P a g e
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4.
Lose Your Job
In certain professions your client if convicted of Assault Family Violence may lose their livelihood. If you are a teacher, nurse, or doctor you may be ineligible to hold that type of position with a conviction for Assault Family Violence. Those types of professionals will need to contact their licensing board to determine what if any consequences they may be subject to, including the loss of their license, for a subsequent Assault Family Violence conviction. Further, depending upon the disposition of the case there are certain professional licenses that are at risk should the client be involved in a case involving an allegation of Assault Family Violence. In the event of an arrest for Assault Family Violence, most of these consequences and procedures which apply and must be addressed with the various licensing agencies in Texas, are on their websites. You and your client should carefully review those procedures and licensing regulations when considering how this arrest and a subsequent conviction could affect your client’s future employment opportunities. This is why it is critical, even in a case involving bad facts, to thoroughly investigate all options of resolution which do not involve a final conviction or finding of family violence. 5.
Permanent Criminal History
If convicted of Assault Family Violence your client will have a permanent criminal record. Even in the event of your client receiving a deferred disposition for their Assault Family Violence case, it will be a permanent record of the deferred disposition because this type of criminal offense (even at the misdemeanor level) is ineligible to be non-disclosed in the future. Any type of conviction and finding of family violence, even for a Class C misdemeanor Assault Family Violence matter, can be used by the State to enhance any other future allegations involving Assault Family Violence. As such, your client that was convicted of Assault with an affirmative finding of Family Violence on a Class C misdemeanor offense, for which they paid a fine and went on their way, allows the State to file subsequent allegations of Assault Family Violence as a felony. It is a slippery slope because of the nature of the disposition and the consequences of that disposition coupled with the affirmative finding of family violence. Unlawful Possession of Firearm – Texas Penal Code § 46.04 (a) A person who has been convicted of a felony commits an offense if he possesses a firearm: (1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or (2) after the period described by Subdivision (1), at any location other than the premises at which the person lives. (a-1) A person who is a member of a criminal street gang, as defined by Section 71.01, commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft. 59 | P a g e
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(b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person’s family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of: (1) the date of the person’s release from confinement following conviction of the misdemeanor; or (2) the date of the person’s release from community supervision following conviction of the misdemeanor. (c) A person, other than a peace officer, as defined by Section 1.07, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Subchapter A, Chapter 7B, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order. (d) In this section, “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code. (e) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (a-1), (b), or (c) is a Class A misdemeanor. (f) For the purposes of this section, an offense under the laws of this state, another state, or the United States is, except as provided by Subsection (g), a felony if, at the time it is committed, the offense: (1) is designated by a law of this state as a felony; (2) contains all the elements of an offense designated by a law of this state as a felony; or (3) is punishable by confinement for one year or more in a penitentiary. (g) An offense is not considered a felony for purposes of Subsection (f) if, at the time the person possesses a firearm, the offense: (1) is not designated by a law of this state as a felony; and (2) does not contain all the elements of any offense designated by a law of this state as a felony. Unlawful Possession of Firearm – United States Code § 922 (g) (g) It shall be unlawful for any person: (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; (2) who is a fugitive from justice; (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); (4) who has been adjudicated as a mental defective or who has been committed to a mental institution; (5) who, being an alien— (A) is illegally or unlawfully in the United States; or 60 | P a g e
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(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26))); (6) who has been discharged from the Armed Forces under dishonorable conditions; (7) who, having been a citizen of the United States, has renounced his citizenship; (8) who is subject to a court order that— (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or (9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
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Conclusion An Assault Family Violence allegation can be one of the most difficult type cases to defend, because of the nature of the allegation itself. The accusation much like an allegation of sexual assault has a stigma which immediately arises upon arrest. It is like we are immediately engaged in an uphill battle seeking justice for our client. We must allow the dust to settle, take a step back and reel our client in. We close ranks, establishing a ring of trust if you will, of those family members and friends that our client can trust. You will need to investigate the backgrounds and motivations of each witness, including the complainant. You will need to investigate the specific circumstances of the alleged assault because details matter. I often approach these types of allegations in a similar manner that I would investigate and prepare a defensive strategy in an aggravated assault or sexual assault case. These cases, as we discussed previously, are not limited to adults, and although not as prevalent, can involve children and allegations of child abuse. You will need to become familiar with having to gather information regarding TDPRS investigations, and often times shut down attempts by the Child Protective Services caseworker from speaking with your client. Be vigilant in your interactions with law enforcement, child protective services, and other members within the victim services industry. I hope this paper can provide you with some guidance in how to investigate and defend these types of assault allegations when they are leveled against your client. Best wishes and good verdicts to you all.
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Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St San Antonio, Texas 78205
Drug Offenses
Speaker:
Amber Vazquez
Vazquez Law Firm, PLLC 608 W 12th St Austin, TX 78701 512.220.8507 phone 512.480.0670 fax amber@criminallawaustin.com email www.criminallawaustin.com website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Drug Offense “Mo’ money, Mo’ drugs, Mo’ Problems” Amber Vazquez So far there has not been any reason to believe there will be any substantial changes in drug policy in Texas, though there were a lot of reasons to think that 2021 was going to be a pivotal year for criminal justice reform in Texas. There was widespread popularity of relaxing cannabis laws, public support for addressing police violence and systemic racism in the justice system, and the pandemic turning overcrowded jails from a simmering public health risk into a crisis too big to ignore. All of this seemed like a positive turn since the domination of the “War on Drugs” began four decades ago. To be sure, the drug war’s harsh logic is no longer the only narrative. The overdose epidemic has begun to shock Americans into accepting that incarceration cannot solve addiction. The large and diverse makeup of the summer 2020 protests against police violence shows that more individuals, and importantly, more white individuals, are allied with the struggle for racial and social justice. Some politicians in large metropolitan areas have campaigned successfully on the promise to use evidence-based approaches and fix the justice system, and some are working to fulfill these promises. There are politicians from both parties at the national and state levels willing to at least consider bipartisan reforms. The climate and issues have changed, as reflected in the emerging trends relating to drug addiction and criminal justice: •
Drug possession arrests held steady at more than a million a year, in stark contrast with a large reduction in overall arrests, which dropped 29%.
•
Only 1 in 13 people who were arrested and had a drug dependency received treatment while in jail or prison.
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Racial disparities in drug enforcement declined. Arrests of Black people for drug offenses fell by 37%, more than three times the drop among White people.
•
Increased arrests of White individuals for possession of methamphetamine offset declines in marijuana arrests and drove the reduction in racial disparities.
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The numbers of people admitted to and held in state prisons for drug offenses both fell by about a third, accounting for 61% of the overall reduction in prison populations and 38% of the total decline in admissions.
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The decline in the number of Black people incarcerated for drug offenses made up 26% of the decrease in prison admissions and 48% of the drop in the prison population.
•
Drug- and alcohol-related mortality rates increased fivefold in prisons and threefold in jails despite the decreases in the number of people in prison for drug offenses. The Rise of Fentanyl
Fentanyl, a synthetic opioid analgesic that is times more powerful than heroin and 100 times stronger than morphine, can be prescribed as a painkiller or anesthetic. But used illegally, it was linked to almost 1,700 fatal overdoses in Texas in 2021. The Drug Enforcement Administration (DEA) recently reported that its lab testing last year revealed six out of 10 fentanyllaced prescription pills contain a potentially lethal dose of fentanyl — up from four out of 10 in 2021. Since March 2021, the combined efforts of Texas Department of Public Safety (DPS) troopers, criminal investigators and intelligence specialists dedicated to border operations have led to the seizures of more than 342 million lethal doses of fentanyl, according to the governor’s office. With this sharp rise has come the sharp rise of deaths, and NIDA reported that 59.8 percent of opioid-related deaths involved fentanyl in 2017 compared to 14.3 percent in 2010.
Certain fentanyl crimes may also result in federal charges. The penalties for a federal conviction can be extreme, with a first offense not involving death or serious bodily injury being punishable by a minimum of five years up to 40 years in prison. If a first offense does involve death or serious bodily injury, a conviction is punishable by a minimum of 20 years up to life in prison. An alleged offender could also be fined $5 million if they are an individual or $25 million if they are not an individual.
Crack v. Powder Cocaine Congress passed the Fair Sentencing Act of 2010, which reduced the racially discriminatory crack-to-powder drug quantity ratio from 100:1 to 18:1. The First Step Act in 2018 made the Fair Sentencing Act retroactive, applying the law to 3,000 people who were convicted of crack offenses before the law went into effect in 2010. Analogue Drugs Analogue (or Analog) drugs are often called designer drugs and mimic the chemical structure of illegal narcotics. Under past state drug laws, only actual listed drugs were considered illegal, making these “designer” drugs ideal. The Federal Analogue Act, 21 U.S.C. § 813, is a section of the United States Controlled Substances Act passed in 1986 which allows any chemical "substantially similar" to a controlled substance listed in Schedule I or II to be treated as if it were listed in Schedule I, but only if intended for human consumption. AI in Manufactory and Delivery of Drugs New emerging technology is altering the way narcotics are being manufactured, providing ways to produce pills with no human risk. AI could constantly alter the chemical formula to circumvent even analogue statute or to subvert detection by law enforcement. AI will also dramatically change the methos in which narcotics are delivered. The future is here, and we have existing AI that can manufacture and deliver more in more remote locations with less resources than humans. This is all possible because drones and other delivery methods can be controlled remotely. Important Decisions that Apply to Drug Searches (1) Riley v. California, 573 U.S. 373 (2014) Must have search warrant to search a cell phone. (2) Carpenter v. United States, 138 S. Ct. 2206 (2018) Made clear that cell-site location information (CSLI) must comply with the Fourth Amendment (3) City of Indianapolis v. Edmond, 531 U.S. 32 (2000) Invalidated a narcotics checkpoint program stating that it violated “the general rule that a seizure must be accompanied by some measure of individualized suspicion”. (4) Texas v. Baldwin, 614 S.W. 3d 411 (2020) Held that boilerplate language may be used in an affidavit for the search of a cell phone, but to support probable cause, the language must be coupled with other facts and reasonable inferences that establish a nexus between the device and the offense. (5) United State v. Crawford, 943 F.3d 297 (6th Cir. 2019) Crawford contends that the officers who sought the warrants did not verify sufficiently the informant's reliability. (6) Collins v. Virginia, 138 S. Ct. 1663 (2018) The automobile exception does not permit the warrantless entry of a home or its curtilage to search a vehicle therein.
(7) McClintock v. State, 541 S.W.3d 63 (Tex. Crim. App. 2017) Court of Criminal Appeals held that four things must be true before the exclusionary rule may apply under 38.23: 1) objective good-faith reliance upon; 2) a warrant; 3) issued by a neutral magistrate that is; 4) based upon probable cause. (8) Rodriguez v. U.S. 135 S. Ct. 1609 (2015) Without reasonable suspicion, police extension of a traffic stop to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures. New Technology Law enforcement’s use of technology is far surpassing the courts’ ability to assess where the boundaries are when it comes to an individual’s rights. We are now confronted with infrared drones that can see and film conversations in remote areas at night with no other human beings actually present. Artificial Intelligence has advanced to the point that private and government agencies can collect data on citizens without their knowledge. The government now possesses the ability to search databases electronically, and to track individuals online. That said, social media has become the leading method of selling narcotics online. SnapChat. Following SnapChat and other social media has become a common way law enforcement investigate alleged drug distribution. Other platforms such as Kick, Signal, WhatsApp, Facebook, Instagram, and others are also commonly used and infiltrated by law enforcement. These mediums are different in that nothing is ever truly gone once it is put out on the internet. Advanced computer technology allows searches of deleted items from phones, and this will forever change the way in which drug crimes are investigated. Odor of Marijuana and Probable Cause Searches in Texas Texas courts have long considered the smell of marijuana alone to be sufficient probable cause to search a vehicle and all its occupants. See Parker v. State, 206 S.W.3d 593, 597 n. 11 (Tex. Crim. App. 2006); Stringer v. State, 605 S.W.3d 693, 697 (Tex. App.—Houston [1st Dist.] 2020, no pet.). However, the enactment of HB 1325 casts doubts on the continued viability of this seemingly bright-line rule. So far, only the Dallas Court of Appeals has addressed the issue, holding that the smell of marijuana alone is still sufficient probable cause to search a vehicle. Texas House Bill 1325 legalized the possession of cannabis – a substance the Legislature has defined to mean any cannabis plant that contains less than 0.3 percent of THC. As the Texas Supreme Court has explained, “the only way to distinguish between a legal ‘cannabis’ plant, part, or product and an illegal ‘marihuana’ plant, part, or product is to test its THC concentration forensically; they are virtually indistinguishable by sight or smell alone.” Texas DSHS v. Crown Distributing, LLC, 647 S.W.3d 648, 662 (Tex. 2022).
Cortez v. State In December 2022, the Dallas Court of Appeals became the first to weigh in on whether the smell of marijuana alone can still form the basis of probable cause to search a vehicle now that cannabis has been legalized. See Cortez v. State, No. 05-21-00664-CR, 2022 Tex. App. LEXIS 9270 (Tex. App.—Dallas Dec. 20, 2022, pet. filed) (mem. op.). In that case, the arresting officer observed the defendant’s vehicle weaving, crossing the solid white line, following the vehicle in front of him too closely, and keeping his blinker on for a prolonged period of time without changing lanes. Id. at *2. When the officer ran the vehicle’s plates, he discovered an “outstanding warrant attached to the vehicle.” Id. The officer pulled the vehicle over and approached the driver, where he smelled the odor of marijuana emanating from the vehicle. Id. at 3. The officer testified – and the trial court found – that the odor of marijuana was the sole basis for the officer’s subsequent search of the vehicle, which turned up marijuana, meth, and a meth pipe. Id. at *3-6. The defendant argued that after the passage of HB 1325, the odor of marijuana alone is insufficient to establish probable cause to search a vehicle because illegal marijuana and legal cannabis are indistinguishable by sight and smell. Id. at *13-14. The Dallas Court of Appeals, however, disagreed. Relying on Heien v. North Carolina, 574 U.S. 54, 60 (2014), the court reasoned that “an error of fact or law, if reasonable, will not render the officer’s judgment on the scene as invariably unreasonable.” Id. at *16. The court held, without going into any further detail, that even though the “possibility of error was invariably present,” the odor of marijuana alone is sufficient to establish probable cause to search a vehicle. Id. at *17. The Probable Cause Standard The Cortez opinion notes that probable cause does not require the officer to have absolute certainty that a crime has been committed. For comparison, the court noted that if an officer sees “bales of white powder wrapped tightly in plastic and duct tape,” the officer has probable cause to seize those items, even if later laboratory testing reveals that the substance is something other than cocaine. Cortez, 2022 Tex. App. LEXIS 9270 at *16. But although Cortez correctly noted what probable cause does not require, it made no mention at all of what it does require. “Probable cause exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found.” Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005). Unlike the court’s hypothetical bales of white substance tightly wrapped in plastic, there is an increasingly high likelihood that a vehicle that smells of “marijuana” contains legal “cannabis” that is possessed and consumed by more and more Texans each year as it increases in popularity. 1 Possession of “Smokable” Cannabis In a footnote, the Dallas Court noted that “although cannabis is legal, the ‘manufacture,’ ‘processing,’ and distribution or retail sale of ‘consumable cannabis products for smoking’ is See TEXAS TRIBUNE, “CBD Products are Everywhere in Texas Since the State Legalized Cannabis. Experts Warn: Buyer Beware.” https://www.texastribune.org/2020/01/23/texas-cbd-products-areeverywhere-heres-what-you-should-know/ 1
prohibited.” Cortez, 2022 Tex. App. 9270 at *17. The court did not rely on this provision of the statute to reach its holding, so it is unclear why it was included in the opinion. The State, however, did rely on the language of the statute to argue that the possession of smokable cannabis is not “per se legal.” But the statute does not make possessing “smokable cannabis” illegal – only manufacturing, processing, and distributing it. On June 2, 2018, in direct response to the 2018 Farm Bill, Governor Greg Abbott signed into law HB1325. HB 1325 purports to utilize the same definition of “hemp” as the 2018 Farm Bill: “[T]he plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis.” Texas Administrative Title 4, Chapter 24 (a)(35) Enacted March 11, 2020. However, in reality, HB 1325 defines “hemp” more narrowly than the 2018 Farm Bill by carving out “hemp for smoking.” HB 1325, codified in the Texas Agriculture Code 122.301(B) defines “hemp” as “In this chapter, "hemp" means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” “Smoking” is defined as “[b]urning or igniting a substance and inhaling the smoke or heating a substance and inhaling the resulting vapor or aerosol.” There is no specific differentiation as to how smokable hemp is distinguished from non-smokable hemp, thus making the definition of smokable hemp overbroad and arbitrary to enforce. Almost anything can be “smokable,” from banana peels to any plant known to man. In fact, there is no way to grow cannabis that is unable to be smoked in some manner. Thus, attempting to distinguish between non-smokable cannabis and smokable is virtually impossible. Conclusion The rise of fentanyl is dramatically changing the landscape of drug offenses in Texas and the United States, as is the ever-evolving analogue drug statute and new technology. While an analysis of recent decisions addressing search and seizure is promising, it will be difficult for the courts to stay ahead of law enforcement capabilities. Finally, the Texas Farm Bill changed the criminality of marijuana in Texas, but there are still challenges ahead to persuade the courts that law enforcement cannot base a probable cause search on the odor of marijuana alone.
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Sexual Assault
Speaker:
Jeff Kearney
Author:
Lisa Greenberg
Kearney Law Firm 3100 W 7th St Ste 420 - One Museum Place Fort Worth, TX 76107 817.336.5600 phone 817.336.5610 fax jkearney@kearneylawfirm.com email www.kearneylawfirm.com website
Law Office of Lisa Greenberg 622 S Tancahua St Corpus Christi, TX 78401 361.446.2476 phone 361.288.3476 fax lisagreenberglaw@gmail.com email https://lisagreenberglaw.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
SEXUAL ASSAULT
Presented by Jeff Kearney Kearney Law Firm 3100 West 7th Street, Suite 420 Fort Worth, TX 76107 (817) 336-5600 (817) 336-5610 (fax) jkearney@kearneylawfirm.com
Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 San Antonio, Texas
Sincere Appreciation is Given to Lisa Greenberg Who Wrote This Paper
Sexual Assault Cases Lisa Greenberg Law Office of Lisa Greenberg 622 S. Tancahua St. Corpus Christi, TX 78401 Lisagreenberglaw@gmail.com Rule Number One: Care. Find something to care about with your client- whether it’s the person, the injustice, the unfairness of the system, their mama, babies, something...If you don’t care, the jury wont. They will sense it. I.
Where do we start? a. Focus on: i. Motive: just like with children, juries need a motive, otherwise they think that no one would make up such allegations. There is a thought in most juror’s minds that say “No one would make up something like this” unless you tell them why. 1. Look for things such as: “Sunday morning regrets”; cheating on a boyfriend/girlfriend; betrayal, an ex who has moved on; disapproving parents. ii. Impeachment: this is how you win a case of he said/she said. Always think of impeachment. You need to do everything you can to uncover who the accuser is. iii. Telling FULL Story- how do we do this? 1. First client meeting, need all the info; 2. Pay attention to client, does he/she have anything we need to look into? a. Mental health b. Past cases c. Ticks, things that make them appear guilty or something we need to explain d. Appearances e. Who are they?
II.
The Environment – Today’s sexual assault case- what are your jurors thinking? a. Explore this, look on social media; even if you don’t like, you need to know what is out there b. Local news, national news c. Popular tv shows- are there movies about sexual assault we need to know about? d. Me too movement and today’s attitudes towards it.
III.
Pretrial Discovery and Motions- find your impeachment and motive. a. Rule No. 1: do not ever go to trial with only what the state gave you. b. Reading discovery- make notes- write questions you have about the discovery, what strikes you as odd. Who do you want to talk to further? c. Where do you look: i. Social media ii. Past police reports iii. Other statements about the incident iv. Healthcare records v. School grades, job performance etc? d. Motions: i. Always a discovery motion! 1. I'm asking for MORE- victims compensation act info and claims? 2. HIPAA protected items 3. Any other claims 4. Notes from talks with victims advocate coordinators 5. Any other state agency info- DFPS, AG’s office, etc. ii. Always 404b, experts, etc. iii. Info on Witnesses
IV.
Trial Time: a. Voir Dire: i. What kind of jurors do we want ii. What do we want them thinking about iii. How to tell our story in voir dire: 1. Get permission to Impeach the complaining witness. b. Opening c. Cross d. Experts e. Closing
V.
Other considerations:
I.
Where Do We Start? Sadly, there is no correct answer. You will develop your own style and instinct and go from there. For me, I really try to focus in on a motive at my initial client meeting. Ask your client, why is this person saying this about you? Look for life changes. Common ones include: break-ups, new relationships, Sunday Morning regrets, someone drank too much and had poor judgment (this is NOT the same as sexual assault). Focus on the status of the parties’ relationship. Was it long term? Was someone rejected, did they feel rejected? Is the person who is claiming to be the victim in a relationship where they
could be in trouble if they are found out that they had sexual relations with another? Will they be judged by parents, classmates, their friends? Once we get an idea of what is going on in the situation, see how your client reacts to the charge itself. It will be something you may need to address in voir dire, etc. Sometimes people do not react the way we think they should. Why is your client reacting that way? Is he someone who does not show emotion well? Delve into their background to try and explain why your client’s reaction is the way it is. A. Impeachment: I begin looking for impeachment info right away. It’s important to get information right as soon as it’s available. Get your client to look at his/her cell phone to look for text messages, photos, anything that shows the plans of what the meetup would be. Would there be drinking? Drugs? Are the texts flirty in nature. What about directly after. Does the complaining witness seemed frightened? Upset? I also want all the information I can about who the accuser is. What is their background? Are they often a victim? Mentally unhealthy or unstable? Do they crave attention? Are they the star student who is seen as a role model and can’t be seen sleeping around etc. You need all of this information to help build your motive and know whether the accuser is trustworthy or not. B. Telling the FULL Story: This is always our goal. We view the police report and videos as one portion, or a slanted view of the story. We want the jurors to know that we are the ones who will tell them everything, including why these accusations are occurring. We do this by doing our pretrial investigation and knowing more than the prosecutors and the cops on the case. To do this you need the following: 1. Make sure you build rapport and trust with your client so they tell you and give you everything, good, bad and ugly. 2. Does client have any issues we need to look into? a. Easily deceived? Always used by girls, etc b. Mental Health issues. c. Past cases/ accusations d. Do they have any ticks, things that make them appear guilty. e. Appearance of client, appearance of accuser. f. Know who your client is, how they grew up, how they experienced this situation and what is at risk for them. II.
The Environment Today and the Effect of it On Your Jury: If your head has been in the sand about today’s news, culture etc. About sexuality and sexual assault cases, you’ve done a disservice to your client. We have to be aware of the media around these issues and the public’s reaction to such cases. We have to explore the publics reactions to famous cases of sexual assault, trials, etc. We need to look on social media, even if you don’t like social media, it is your job to know what is out
there. How are. young people reacting? Older people? The public in general. Think of the #metoo movement. The movement itself caused a reaction in the public, as well as the criminal justice system. When was your case indicted? Same time period? Look at famous cases such as Bill Cosby, Harvey Weinstein, Larry Nassar. The recent case of Johnny Depp v. Amber Heard showed a shift in the public’s reaction to these cases. The public seemed willing to be more critical of the complainant than previously. Locally you need to be aware of your jury panels beliefs on these cases. Is your jurisdiction conservative or liberal on these types of cases (think Austin v. Lubbock). Do you have many young people who tend to be in your venire? What are their thoughts on these cases? Is there a predominant religion in the area that may affect their views? Remember, this is never about what YOU believe, it’s about picking the right jury to receive the story you are telling and how to frame that story. III.
Pretrial Discovery and Motions: Every time I stand before a group of defense lawyers and talk, I adamantly say: Except on very rare occasions, if you are relying solely on what the State gives you in evidence, you are probably ineffective and not doing your job. We need to be asking for more and doing the work to make the State get it and to be thorough, prepared and informed. A. How I start: Once I have spoken to my client, I have an idea of where I am going with the case. Once I read the discovery, I begin making a list on the side of things I’m looking for. These items usually include things such as: any victim’s impact compensation, all communication with DA’s office, full medical records, photos and any video statements made, etc., I want her school records, any mental health records and counseling notes, etc. I’m looking for different variations of her story, any inconsistencies, inconsistencies in her grades, seeing if her mental health has been affected etc. Another place to look is for reasons for the sexual assault claims. I have cases where my clients have gone to their college health clinic for the morning-after pill, or to check for STD’s. Those records may go to their parents to pay for, but if they are victims of sexual assault- those items are covered by the State. Dig, it can only help and at worst, you are prepared for the worst. B. Where do you look? This is the fun part. You get to be the detective! Let’s see what evidence we can find to prove our theory of the case is correct. Remember, talk is cheap- but backing it up with evidence helps the jury follow us as the honest guide in the courtroom. 1. Social Media: this is my favorite. Look for posts garnering sympathy (motive) or going out afterwards (not too bothered); look for bruising, etc. If they look fine, it helps you. I have a case where the complaining witness stated she was beat and hit in the head. On Tik Tok, she recently claimed she was a victim of kidnapping, the story has evolved. 2. Past Police Reports: I like to see if the complaining witness likes to call the police, claims to be a victim often, etc. I had a case once where the complaining witness claimed she was
raped at a party by two classmates. In a later police report from the same address she claims she was the victim of a purse theft. The importance of this was that she returned to the address of the person she claimed raped her for a party. 3. Other statements about the incident: Where do we find this? Start at the initial report. Then the complaining witness’ statement. Any info given in medical records. Then look at statements given to advocates such as rape advocates, police, DA’s victim advocate coordinators. Get all of the notes in your discovery motions. Compare them. 4. Healthcare records: Look beyond the initial medical records. Get counseling records, follow up records, etc. Get all the counseling records, from before and after. Sometimes people claim to be victims of similar instances prior to your case. 5. School grades, job performance, etc.: If your complaining witness is talking on social media or to the victims’ advocate coordinators about how traumatized they are, why take them solely on their word? You know the State will have some expert or testimony on this trauma. Show that it really hasn’t affected them as much as they say. Look to school records, job performances, social media to see if they are still going out, being social. It’s worth it to know the full story and the jury will want to know this as well. C. What Motions do I Use? As I stated before, I always file additional motions. In all cases, you should file the Standard Morton Request, this triggers 39.14. In addition, I file my 404b notice, my expert notice, etc. 1. Outcry notice- remember, the State will try to pile these on, make sure you get them to limit the outcry to one if it is a child, and if not, make sure you are not getting repeated outcries or bolstering through the many people the State attempts to use to do this. Look at the following: rape victims advocate, medical care provider, friends, roomates, etc. 2. Discovery motion: I do one of these in EVERY case. I’m asking for more here, things I cannot get on my own, such as HIPAA protected items. Typically, in these cases, the State will claim the complaining witness is traumatized and needs counseling. I will need them to get me those records. I can ask for them to be filed under seal with the judge or a protective order, but I still need them and need to see any recounting of the incident, whether the story changes, etc. a. I usually ask for any other claims made by this complaining witness. The State will have to INQUIRE as to whether any were made by this complaining witness. I like for them to document the complaining witness’ answer to the inquiry. Then, on my own, I will do a public information request for that name with the PD, or get my investigator to do our own search. That way if she does not claim it to the DA I have created impeachment info. b. I always ask for notes from the DA, victims advocate coordinators etc. I am asking for the State’s Victim’s Compensation fund info etc. I want all notes, every communication, etc. Is she calling weekly to push the case (may show motive), etc. c. Any other State agencies’ info. Are their children involved? Was DFPS involved? Ag’s office etc.
3. Make sure you ask for their expert info with a deadline! 4. All info on any witnesses who may testify, notes from their interviews and criminal histories. IV. A.
Trial Time: Voir Dire: What kind of juror do we want? What are we trying to do here. a. Build doubt, build skepticism and tell our clients’ story b. Get permission to cross the CW, impeach. c. Get the jurors thinking about any “experts” the State may use and whether they in fact are hired to bolster the State’s case
B. Opening: I do not agree with those who waive opening to avoid having the State know where they are going. I understand the theory, and it may be appropriate in rare cases, but here, we’ve done our work. We know our theme, our motive of why the complainant said what he/she did and we want the jurors to know exactly what to listen for. We’ve put that idea in their heads during Voir Dire. Know we must tell them exactly what our story is. I believe every time we stand up, in voir dire, in opening, even in our objections we are repeating our story. This opening statement portion is where we really get to tell them what happened. Don’t waste that opportunity! Stand up and say it. I rarely waste time with formalities, I jump right in. I want them to hear me, hear my client’s story. This also lets them know what to listen for when all the witnesses testify. Did the cops do a thorough investigation or listen to one side? Did the complainant leave out details? Why? Did the investigators look for other reasons, motives for the complainants’ story? What did the investigation miss? Here you tell them. C. Cross: When I was a newer defense lawyer, cross really intimidated me. Now I love it, this is also an opportunity to tell your client’s story. With each witness, I have a clear path of where I’m going and my goals. When I begin my cross, I write three main goals on the top of my paper. Most of the time in cases like this it looks like this for each witness. 1. Investigator: tunnel vision, did not look for alternatives, did not look at my client’s story or for a motive. 2. Complainant: You must choose your style for your complainant carefully, sometimes a soft cross can work. You are developing your motive here. Consider the fact that they may have been angry, jilted, see your client with another mate. Perhaps they are embarrassed, ashamed that they agreed to some sexual activity they are not proud of. Maybe their friends or classmates knew and now they have to say they did not consent to feel less ashamed. Could it be that they are afraid their parents, authority figures would know what they did. Remember, poor judgment is not the same as lack of consent.
D. Experts: Experts are often used by the State to say that whatever the complainant does is consistent with someone who has been sexually assaulted. We must debunk this junk science. Make sure you know what that expert has testified to previously in other cases. Where do they work? Explore their bias. Have they interviewed this complaining witness or are they just hired to say the one thing, without regard to the facts in your particular case? How much research did they do on these facts. Did they look at motive? Did they speak to your client? This area can also be flushed out in voir dire. E. Closing: I love closing argument. Just like with opening you are telling your client’s story. Now you get to add all the gusto and information received during the cross examinations and any evidence you put on. Here you can show things such as: The officers’ lack of investigation into any motive or alternate theories; the complainants lack of candor, the jumping to conclusions and rush to judgment of your client. Here you make the jury feel what It's like to have your life, liberty, reputation etc. On the line because of one person’s statement about what they say occurred and why they may have left out facts or told lies. Here you do not waste time with thanking the jury. You emphasize that now is the only time the full story was heard and how these jurors can do the right thing because they took the time to hear it. You make them feel what it’s like to be in fear of not being able to prove a negative nor having the opportunity to be heard and you let them know exactly how they can make it right. V.
Other Considerations: There are many cases that do not fit the mold of the typical sexual assault case. You may have to address these things head on in their uniqueness. There are times there are multiple complainants. Is your client a wealthy doctor? Did the news broadcast this case and cause others to jump on board? Was there a nasty rumor about your client that caused others to say that their once consensual relationship was no more? Think of the #metoo movement, and instances where people originally said they consented to sexual encounters but after others stories came to light they believed that they were influenced to do things they normally would not do to get ahead in their careers, etc. We have to be willing to talk about these things, head on- because those do not necessarily equal sexual assault. Look at the timing of your allegations in reference to your case and what is going on in the world around that time. Look at tv shows, media etc.
APPENDIX Appendix A: Letters i. Engagement Letter Dr. Lewis ii. Letter to Opposing Expert iii. Letter to Victim’s Mother Requesting Interview Appendix B: Subpoenas i. Alliance for Children – counseling and case management records ii. Cook’s CARE TEAM iii. CPS Records iv. FWISD – Madore v. School Records Release Appendix C: Motions i. Motion and Order for Disclosure of CPS Records ii. Motion for Discovery of Persons Who Have Interviewed Victim (Child Abuse or Sexual Abuse Case) iii. Motion for Individual Voir Dire (Child Sexual Abuse Case) iv. Motion to Submit Additional Jury Questionnaire – Details a. Jury Questionnaires
APPENDIX A: LETTERS
June —, 2008 Franklin D. Lewis, Ph.D. Lewis & Associates 7557 Rambler Road, Suite 711 Dallas, Texas 75231 Re:
My Client: ____________________
Dear Dr. Lewis: This letter will serve as our Employment and Agency Agreement whereby you are being employed as a consultant and agent for me in my representation of ________________. As such, you will be exposed to confidential facts and information as well as confidential and privileged communications between me and my client. By your approval of this Agreement, any information or facts that you receive as my agent and consultant will be the work product of the attorney and will be subject to the attorney/client privilege existing between me and my client. All facts that come to your knowledge by reason of this employment are within the attorney/client privilege and will be protected by said privilege and shall be kept confidential and not be disclosed. You are requested to send billing statements to me at the above address, and I will promptly remit payment from my trust account. If this Agreement meets with your approval, please sign in the appropriate space below, and return the original to me. Thank you for your consideration in this matter. Yours very truly, WM. REAGAN WYNN WRW/dbt cc:
Mr. _____________________
APPROVED AND AGREED TO: ____________________________ FRANKLIN D. LEWIS, Ph.D.
July 26, 2007 VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED Linda Norton, M.D.
Re:
State of Texas v. XXXXX, Cause Number xxxxx / Murder 264TH Judicial District Court, Bell County, Texas
Dear Dr. Norton: It is my understanding that you have been retained by the State to testify as an expert witness in the above-referenced matter which is currently scheduled for trial beginning Monday, August 6, 2007. As you know from our previous communication regarding the above-referenced matter, I represent the defendant, XXXXX. I am writing to request that you bring any and all materials constituting the facts or data underlying your opinions regarding this matter to court with you when you come to testify so that I may examine them and question you about them outside the presence of the jury. See TEX. R. EVID. 705. This request includes, but is not limited to, the following materials: •
Any and all reports, handwritten notes, results of testing, and/or any other documents made by you or in your possession or control pertaining to any and all testing, analysis, or review conducted by you or any other person of the autopsy performed on XXXXX on or about September 7, 2001, Southwestern Institute of Forensic Sciences case number XXXXX;
•
Any and all reports, handwritten notes, results of testing, and/or any other documents provided to you for review in this matter; and,
•
Any and all published treatises, periodicals, or pamphlets on a subject of medicine or other science relied upon or considered by you in conducting any and all analysis in this case and/or in forming any and all opinions that you have formed in this case.
Thank you for your time and consideration in this matter. If you have any questions, please do not hesitate to call me. Very truly yours,
JEFF KEARNEY cc:
Mark Kimball, Esquire Bell County District Attorney’s Office
May 1, 2023 Via Certified Mail Return Receipt Requested Ms. ZZZZZ OOOOO Craig Street Fort Worth, Texas 76112 Re:
The State of Texas vs. XXXXX
Dear Ms. ZZZZZ: Our firm has been retained to represent XXXXX in his defense of the allegations in the above referenced matter. In that capacity, I would like to talk with both YYYYY and you at a time and place convenient to you to better understand your knowledge about the facts and circumstances surrounding this case. If you desire, the District Attorney can be present during our discussion, and we can meet at the District Attorney's Office if that is more comfortable for you. It is our duty as attorneys representing Mr. XXXX to have as full knowledge of the facts as possible so we may effectively defend him. Discussing YYYYY and your knowledge regarding these allegations will help ensure that Mr. XXXXX receives a fairer trial. Please contact me upon receipt of this letter so I can schedule an appointment with you. Yours very truly,
JEFF KEARNEY cc:
Mr. XXXXX
APPENDIX B: SUBPOENAS
Cause No. XXXXX THE STATE OF TEXAS VS. XXXXX
§ § § § §
IN THE 372ND JUDICIAL DISTRICT COURT TARRANT COUNTY, TEXAS
APPLICATION FOR SUBPOENA DUCES TECUM TO THE CLERKS OF THE CRIMINAL DISTRICT COURTS OF TARRANT COUNTY: You will please issue subpoena in accordance with law in the above numbered and entitled cause for the following named witness, whose testimony is material to the Defense. Witnesses: CUSTODIAN OF RECORDS, ALLIANCE FOR CHILDREN 908 SOUTHLAND AVENUE FORT WORTH, TEXAS 76104 Duces Tecum: COPIES OF ANY AND ALL RECORDS, DOCUMENTS, OR OTHER INFORMATION IN YOUR POSSESSION OR RELATING TO “GROUP COUNSELING” OR “CASE MANAGEMENT” SERVICES PROVIDED TO XXXXX, DATE OF BIRTH: NOVEMBER 20, 1997. THIS REQUEST INCLUDES, BUT IS NOT LIMITED TO, THE “ENTIRE PATIENT CHART”, INCLUDING MEDICAL RECORDS AND CHARTS, PSYCHIATRIC RECORDS AND CHARTS, PSYCHOLOGICAL RECORDS AND CHARTS, RESULTS AND/OR RAW DATA OF ANY AND ALL PSYCHIATRIC AND/OR PSYCHOLOGICAL TESTING, PRESCRIPTIONS, NURSES NOTES, DOCTORS NOTES, COUNSELING RECORDS AND NOTES, AND ANY AND ALL OTHER INFORMATION IN THE POSSESSION OR CONTROL OF YOUR FACILITY. THIS WITNESS IS TO PERSONALLY APPEAR ON THE 15TH DAY OF OCTOBER,
______________________________________________________________________________ Signature of person serving subpoena if other than officer of the State
2007, AT 10:00 O'CLOCK A.M., AT THE 372ND JUDICIAL DISTRICT COURT COURTROOM IN THE TARRANT COUNTY JUSTICE CENTER IN FORT WORTH, TEXAS. __________________________________________ __ WM. REAGAN WYNN Attorney for Defendant Issued _______ day of October, 2007, by _____________________________________.
______________________________________________________________________________ Signature of person serving subpoena if other than officer of the State
Cause No. XXXXX THE STATE OF TEXAS VS. XXXXX
§ § § § §
IN THE 372ND JUDICIAL DISTRICT COURT TARRANT COUNTY, TEXAS
APPLICATION FOR SUBPOENA DUCES TECUM TO THE CLERKS OF THE CRIMINAL DISTRICT COURTS OF TARRANT COUNTY: You will please issue subpoena in accordance with law in the above numbered and entitled cause for the following named witness, whose testimony is material to the Defense. Witness: CUSTODIAN OF RECORDS COOK’S CHILDREN’S MEDICAL CENTER / CARE TEAM 801 SEVENTH AVENUE FT. WORTH, TEXAS Wherever Found Duces Tecum: COPIES OF ANY AND ALL RECORDS AND INFORMATION IN THE POSSESSION OF COOK’S CHILDREN’S MEDICAL CENTER AND/OR THE “CARE TEAM”, PERTAINING TO XXXXX, DATE OF BIRTH: NOVEMBER 20, 1997, PATIENT NUMBER: XXXXX. THIS REQUEST IS MEANT TO INCLUDE, BUT NOT BE LIMITED TO: (1) THE “ENTIRE PATIENT CHART”, INCLUDING EMERGENCY ROOM VISITS, MEDICAL, PSYCHIATRIC, PSYCHOLOGICAL, PRESCRIPTIONS, NURSES NOTES, DOCTORS NOTES, AND ANY AND ALL OTHER INFORMATION IN THE POSSESSION OF YOUR FACILITY;
______________________________________________________________________________ Signature of person serving subpoena if other than officer of the State
(2) COMPLETE COPIES OF ANY AND ALL DOCUMENTS PERTAINING TO A “PHYSICAL AND SEXUAL ABUSE MEDICAL PROTOCOL” EXAMINATION CONDUCTED ON XXXXX ON OR ABOUT APRIL 3, 2006; (3) COMPLETE COPIES OF ANY AND ALL LABORATORY REPORTS CONCERNING RESULTS OF ANY AND ALL CULTURES OBTAINED FROM XXXXX DURING A “PHYSICAL AND SEXUAL ABUSE MEDICAL PROTOCOL” EXAMINATION ON OR ABOUT APRIL 3, 2006; (4) ANY AND ALL PHOTOGRAPHIC SLIDES, PHOTOGRAPHIC PRINTS, AND/OR DIGITAL IMAGES TAKEN DURING OR AS PART OF A “PHYSICAL AND SEXUAL ABUSE MEDICAL PROTOCOL” EXAMINATION PERFORMED ON XXXXX ON OR ABOUT APRIL 3, 2006. THIS WITNESS IS TO PERSONALLY APPEAR ON THE 12TH DAY OF OCTOBER, 2007, AT 1O:30 O'CLOCK A.M., AT THE 372ND JUDICIAL DISTRICT COURT COURTROOM IN THE TARRANT COUNTY JUSTICE CENTER IN FORT WORTH, TEXAS. __________________________________________ __ WM. REAGAN WYNN Attorney for Defendant Issued _______ day of OCTOBER, 2007, by _____________________________________.
______________________________________________________________________________ Signature of person serving subpoena if other than officer of the State
Cause No. XXXXX THE STATE OF TEXAS VS. XXXXX TEXAS
§ § § § §
IN CRIMINAL DISTRICT COURT NUMBER THREE TARRANT
COUNTY,
APPLICATION FOR SUBPOENA DUCES TECUM TO THE CLERKS OF THE CRIMINAL DISTRICT COURTS OF TARRANT COUNTY: You will please issue subpoena in accordance with law in the above numbered and entitled cause for the following named witness, whose testimony is material to the Defense. Witnesses: CUSTODIAN OF RECORDS CHILD PROTECTIVE SERVICES (CPS) Wherever Found Duces Tecum: COPIES OF ANY AND ALL RECORDS AND INFORMATION IN YOUR POSSESSION PERTAINING TO XXXXX, DATE OF BIRTH: JUNE, 2, 1991, SSN XXXXX. THIS REQUEST INCLUDES, BUT IS NOT LIMITED TO, ANY AND ALL CASE WORKER REPORTS AND/OR NOTES, MEDICAL RECORDS AND CHARTS, PSYCHIATRIC RECORDS AND CHARTS, PSYCHOLOGICAL RECORDS AND CHARTS, PRESCRIPTIONS, NURSES NOTES, DOCTORS COUNSELING RECORDS AND NOTES, VIDEO-TAPED AND/OR AUDIOTAPED INTERVIEWS, NOTES FROM INTERVIEWS, AND ANY AND ALL OTHER INFORMATION AND/OR DOCUMENTS IN YOUR POSSESSION OR CONTROL. THIS SUBPOENA MAY BE COMPLIED WITH BY PROVIDING THE ABOVE-REQUESTED MATERIALS TO WM. REAGAN WYNN, BRUCE
______________________________________________________________________________ Signature of person serving subpoena if other than officer of the State
CUMMINGS, OR AN AGENT ACTING IN THEIR BEHALF ALONG WITH AN AFFIDAVIT AUTHENTICATING THE MATERIALS ON OR BEFORE THE 24TH DAY OF MARCH, 2006, AT 3:00 P.M. THIS WITNESS IS TO PERSONALLY APPEAR ON THE 27TH DAY OF MARCH, 2006, AT 10:00 O'CLOCK A.M., AT THE CRIMINAL DISTRICT COURT NUMBER THREE COURTROOM IN THE TARRANT COUNTY JUSTICE CENTER IN FORT WORTH, TEXAS. __________________________________________ __ WM. REAGAN WYNN Attorney for Defendant Issued _______ day of March, 2006, by _____________________________________.
______________________________________________________________________________ Signature of person serving subpoena if other than officer of the State
Cause No. XXXXX THE STATE OF TEXAS
§ § § § §
VS. XXXXX TEXAS
IN CRIMINAL DISTRICT COURT NUMBER THREE TARRANT
COUNTY,
APPLICATION FOR SUBPOENA DUCES TECUM TO THE CLERKS OF THE CRIMINAL DISTRICT COURTS OF TARRANT COUNTY: You will please issue subpoena in accordance with law in the above numbered and entitled cause for the following named witness, whose testimony is material to the Defense. Witness: CUSTODIAN OF RECORDS FORT WORTH INDEPENDENT SCHOOL DISTRICT, STUDENT RECORDS, FORT WORTH, TEXAS Wherever Found Duces Tecum:
______________________________________________________________________________ Signature of person serving subpoena if other than officer of the State
COPIES OF ANY AND ALL RECORDS AND INFORMATION IN THE POSSESSION
OF
FORT
WORTH
INDEPENDENT
SCHOOL
DISTRICT PERTAINING TO YYYYY, DATE OF BIRTH: AUGUST 1, 1994. THIS REQUEST IS MEANT TO INCLUDE, BUT NOT BE LIMITED TO, THE “ENTIRE STUDENT FOLDER”, INCLUDING, BUT NOT LIMITED TO: ANY AND ALL TEST
RESULTS,
RESOURCE
SPECIAL
STUDENT
DISCIPLINARY
EDUCATION
SERVICES
RECORDS,
OR
RECORDS,
RECORDS
OF
PSYCHOLOGICAL TESTING AND/OR COUNSELING, ANY AND ALL REPORTS WRITTEN BY ANY AND ALL
TEACHERS
OR
EMPLOYEES
OF
F.W.I.S.D.
RELATING TO ALLEGATIONS THAT YYYY WAS THE VICTIM
OF
AN
ALLEGED
CRIMINAL
OFFENSE
COMMITTED BY XXXXX, AND ANY AND ALL OTHER INFORMATION
IN
THE
POSSESSION
OF
YOUR
FACILITY. THIS WITNESS IS TO PERSONALLY APPEAR ON THE 12 TH DAY OF OCTOBER, 2007, AT 10:30 O'CLOCK A.M., AT THE 372ND JUDICIAL DISTRICT COURT COURTROOM IN THE TARRANT COUNTY JUSTICE CENTER IN FORT WORTH, TEXAS.
______________________________________________________________________________ Signature of person serving subpoena if other than officer of the State
____________________________________________ WM. REAGAN WYNN Attorney for Defendant (817) 336-5600
Issued _______ day of October, 2007, by _____________________________________.
______________________________________________________________________________ Signature of person serving subpoena if other than officer of the State
AUTHORIZATION FOR RELEASE OF SCHOOL RECORDS TO: YYYYY. Custodian of Records, Richardson Independent School District I XXXXX, hereby authorize and direct you to release to WM. REAGAN WYNN, or any other agent working on behalf of KEARNEY | WYNN (hereinafter “Attorneys”), a full and complete copy of any and all records and information in the possession of the Richardson Independent School District pertaining to me. My date of birth is xxxxx. My social security number is xxxxx. This Authorization is meant to include, but not be limited to, my "entire student folder", including, but not limited to: any and all test results, special education or resource student services records, disciplinary records, records of psychological testing and/or counseling, and any and all other information in the possession of your facility. SIGNED this 30th day of November, 2007.
_______________________________ XXXXX DOB: xxxxx SSN: xxxxx
APPENDIX C: MOTIONS
Cause Number XXXXX THE STATE OF TEXAS
§
IN CRIMINAL DISTRICT
§ vs.
§
COURT NUMBER FOUR
§ XXXXX
§
TARRANT
COUNTY,
TEXAS MOTION FOR DISCLOSURE OF CPS RECORDS COMES NOW, XXXXX, Defendant herein, by and through his counsel, Jeff Kearney and Wm. Reagan Wynn, and, pursuant to Article 39.14, Texas Code of Criminal Procedure, files this his Motion for Disclosure of CPS Records, and for such motion would respectfully show the Court as follows: 1.
The discovery provided to Defendant in this matter indicates that
YYYYY, a Child Protective Services Investigator with the Texas Department of Protective and Regulatory Services, interviewed the injured party, ZZZZZ (DOB zzzzz), on or about April 30, 2008 at OOOOO Elementary School. Defendant believes that there may be additional records, including photographs, generated or obtained by CPS which are relevant to the allegations in the indictment.
2.
Undersigned counsel anticipate the prosecution may offer portions of said MOTION FOR DISCLOSURE OF CPS RECORDS PAGE 1
records and/or photographs into evidence at the trial of this cause. 3.
Undersigned counsel have been informed that said records are in the
possession of the Tarrant County District Attorney’s Office. 4.
Undersigned counsel hereby request that the State be ordered to provide
the defense team with a copy of any and all CPS records, including photographs and/or videotapes, for use by undersigned counsel, their agents, and experts in preparation for trial. 5.
Undersigned counsel expressly agree to maintain care, custody and
control of said records, photographs and/or videotapes and not to display or relinquish custody of same to any third party other than their agents or experts. 6.
Undersigned counsel further agree to return the copy of said records,
photographs and/or videotapes to the prosecution after final resolution of this matter. WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Court enter an order allowing the disclosure of the CPS records, including photographs and/or videotaped interviews of ZZZZZ to his counsel of record in this matter. Respectfully submitted, _________________________________ JEFF KEARNEY State Bar Number: 11139500 WM. REAGAN WYNN MOTION FOR DISCLOSURE OF CPS RECORDS PAGE 2
State Bar Number:
00797708
THE KEARNEY LAW FIRM Wells Fargo Building 505 Main Street, Suite 220 Fort Worth, Texas 76l02 (8l7) 336-5600 (817) 336-5610 (fax) CERTIFICATE OF CONFERENCE On the 14th day of January, 2008, conference was held with Assistant District Attorney Lloyd Welchel, who stated that she has no opposition of the granting of the relief requested in this Motion. _________________________________ JEFF KEARNEY CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been hand-delivered to the office of Tim Curry, Tarrant County Criminal District Attorney, Tarrant County Justice Center, 401 West Belknap Street, Fort Worth, Texas 76196, on this ______ day of January, 2008. _________________________________ JEFF KEARNEY
MOTION FOR DISCLOSURE OF CPS RECORDS PAGE 3
Cause Number XXXXX THE STATE OF TEXAS
§
IN CRIMINAL DISTRICT
§ vs.
§
COURT NUMBER FOUR
§ XXXXX
§
TARRANT
COUNTY,
TEXAS ORDER ALLOWING DISCLOSURE OF CPS RECORDS Before the Court is Defendant's request for disclosure of CPS Records regarding ZZZZZ which are in the possession of the State of Texas. The Court hereby ORDERS: 1)
That Jeff Kearney and Wm. Reagan Wynn, attorneys for Defendant, XXXXX, shall be given a copy of any and all CPS records, including photographs and/or videotaped interviews of ZZZZZ for use in trial preparation; and,
2)
Jeff Kearney and Wm. Reagan Wynn , and their agents or experts shall maintain care, custody and control of said records, photographs and/or videotapes and shall not display or relinquish custody of same to any third party other than his agents or experts.
ORDER PAGE 1
3)
After the final resolution of this case, Jeff Kearney and Wm. Reagan Wynn shall return said CPS records, photographs and/or videotapes to the prosecution.
IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that Jeff Kearney and Wm. Reagan Wynn, attorneys for Defendant, XXXXX, shall be given a copy of any and all CPS records, including photographs and/or videotaped interviews of ZZZZZ (DOB zzzzz) subject to the Order recited above. SIGNED this
day of December, 2008.
JUDGE PRESIDING
ORDER PAGE 2
Cause Number XXXXX THE STATE OF TEXAS vs. XXXXX
§ § § § §
IN THE 372ND JUDICIAL DISTRICT COURT TARRANT COUNTY, TEXAS
DEFENDANT'S MOTION FOR DISCOVERY OF PERSONS WHO HAVE INTERVIEWED ZZZZZ TO THE HONORABLE JUDGE OF SAID COURT: Now comes XXXXX, Defendant in the above styled and numbered cause, by and through his attorneys of record, Jeff Kearney and Wm. Reagan Wynn, under authority of Article 39.14 of the Texas Code of Criminal Procedure, Article 1, Section 10 of the Constitution of the State of Texas, and the Fourth, Fifth, Sixth, and Fourteenth Amendments of the Constitution of the United States of America, and makes this Motion For Discovery and moves the Court to order the State of Texas, by and through her prosecuting attorneys to produce the material and information designated below. I. In order to show good cause, the Defendant maintains that the information hereinafter sought is either in the possession of the Tarrant County District Attorney's office, its agents, or law enforcement officers, or readily accessible to
them, and that none of the information is available to the Defendant prior to trial except by order of this Court, and that the information requested is not privileged and is within the proper scope of Article 39.14 Texas Code of Criminal Procedure, and Defendant needs such information prior to trial so that he can properly prepare his defense for the trial on the merits. II. The Defendant specifically requests that the prosecutor provide him with a list of all persons including, but not limited to, private and lay individuals, social workers, counselors, psychiatrists, psychologists, police investigators and District Attorney's investigators, who have interviewed or questioned or conversed with ZZZZZ since the date of the initial outcry by said individual, regarding the allegation contained in the indictment herein. III. Defendant would further show that the information requested should be provided pursuant to the decision of Brady v. Maryland, 370 U.S. 883 (1963), and is material in that withholding such information by the prosecution would be unfair in violation of the Defendant's rights under the United States Constitution. Defendant would further show that said information is material to the Defendant's ability to establish what, if any, outside influences have operated on said DEFENDANT'S MOTION FOR DISCOVERY OF PERSONS WHO HAVE INTERVIEWED RACHEL DOMINGUEZ Page 2
individuals witness from the time of such outcry up and until the time of his/her testimony. To deny the Defendant this request would be a violation of due process under the Fifth and Fourteenth Amendments of the United States Constitution and Article 1 Subsection 19 of the Texas Constitution; and effective assistance of counsel, compulsory process and confrontation and cross-examination as guaranteed by the Sixth Amendment of the United States Constitution and Article 1 Subsection 10 of the Texas Constitution. WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court grant the preceding request for discovery, further prays for such other and further orders to which this Court may find Defendant entitled. Respectfully submitted, ___________________________________ JEFF KEARNEY State Bar Number: lll39500 WM. REAGAN WYNN State Bar Number: 00797708 KEARNEY | WYNN 505 Main Street, Suite 220 Fort Worth, Texas 76l02 (8l7) 336-5600 (817) 336-5610 (fax)
DEFENDANT'S MOTION FOR DISCOVERY OF PERSONS WHO HAVE INTERVIEWED RACHEL DOMINGUEZ Page 3
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion was handdelivered to the office of Tim Curry, Esquire, Tarrant County Criminal District Attorney, Tarrant County Justice Center, 401 West Belknap, Fort Worth, Texas 76196. SIGNED this ______ day of September, 2007. ______________________________ _ JEFF KEARNEY
DEFENDANT'S MOTION FOR DISCOVERY OF PERSONS WHO HAVE INTERVIEWED RACHEL DOMINGUEZ Page 4
ORDER This the _____ day of ________________, 2008, the foregoing Motion having been presented and heard by the Court, it is hereby ORDERED that: All relief requested is hereby GRANTED. ___________________________________ JUDGE PRESIDING The relief requested is granted in part as follows:
___________________________________ JUDGE PRESIDING All relief requested is DENIED, to which action Defendant excepts.
___________________________________ JUDGE PRESIDING
DEFENDANT'S MOTION FOR DISCOVERY OF PERSONS WHO HAVE INTERVIEWED RACHEL DOMINGUEZ Page 5
Cause Number XXXXX THE STATE OF TEXAS vs. XXXXX
§ § § § §
IN THE 372ND JUDICIAL DISTRICT COURT TARRANT COUNTY, TEXAS
MOTION FOR INDIVIDUAL VOIR DIRE TO THE HONORABLE JUDGE OF SAID COURT: Now comes XXXXX, Defendant in the above styled and numbered cause, and files this motion requesting the Court to allow individual questioning of prospective jurors and for such motion would respectfully show the Court as follows: I. The Defendant is entitled to question prospective jurors in order to intelligently exercise a challenge for cause pursuant to Art. 35.16(8), (9), Texas Code of Criminal Procedure. II. The Defendant is also entitled to question prospective jurors for the purpose of intelligently and effectively exercising a peremptory challenge pursuant to Art. 35.14, Texas Code of Criminal Procedure.
III. The Court may, in its discretion, allow the attorneys for the State and the Defendant to interrogate the prospective jurors individually. See Art. 35.17, Texas Code of Criminal Procedure. IV. This case involves the very sensitive issue of sexual abuse. The Defendant believes that a substantial number of the prospective jurors have been the victim of attempted or actual sexual assault. "Studies on such groups as college students indicate that one of every four girls are sexually abused by someone before they reach adulthood. Surveys of troubled groups such as mental hospital patients, prostitutes or runaways indicate that two out of every three were sexually abused as children." See Exhibit A (Victims of Child Sexual Abuse prepared by the Texas Department of Human Resources) which is attached hereto and incorporated herein. V. In a case of this type, the Defendant is entitled to know whether or not any of the prospective jurors, their close friends or relatives have been the victim of an attempted or actual sexual assault. Defendant does not believe that it would be appropriate to ask members of the jury panel this question and explore this subject in the hearing and presence of the other members of the venire. To require an inquiry MOTION FOR INDIVIDUAL VOIR DIRE PAGE -2-
of this nature to be made and answered in the presence of the panel would subject a truthful venireman to embarrassment and humiliation or cause that person to answer untruthfully. VI. The type of inquiry requested herein is necessary in order for the Defendant to intelligently and effectively exercise his challenges, both peremptory and for cause. VII. To deny this request would deprive the Defendant of his right to due process of law as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution, Article I Subsection 19 of the Texas Constitution, and Article 1.04 of the Texas Code of Criminal Procedure. WHEREFORE, PREMISES CONSIDERED, the Defendant prays that this Court allow counsel to interview each prospective juror individually regarding whether or not they, a close friend or relative have been the victim of an attempted or actual sexual assault. Respectfully submitted, ___________________________________ JEFF KEARNEY MOTION FOR INDIVIDUAL VOIR DIRE PAGE -3-
State Bar Number:
lll39500
WM. REAGAN WYNN State Bar Number: 00797708 KEARNEY | WYNN 505 Main Street, Suite 220 Fort Worth, Texas 76l02 (8l7) 336-5600 (817) 336-5610 (fax) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion was handdelivered to the office of Tim Curry, Esquire, Tarrant County Criminal District Attorney, Tarrant County Justice Center, 401 West Belknap, Fort Worth, Texas 76196. SIGNED this _____ day of September, 2007. ______________________________ _ JEFF KEARNEY
MOTION FOR INDIVIDUAL VOIR DIRE PAGE -4-
Victims of Child Sexual Abuse How many children are sexually abused? Studies on such groups as college students indicate that one of every four girls are sexually abused by someone before they reach adulthood. Surveys of troubled groups such as mental hospital patients, prostitutes or runaways indicate that two out of every three were sexually abused as children. In Dallas County, 756 reports of child sexual abuse were made to the Department of Human Resources, Child Protective Services Program in 1983. In the first nine months of 1984, 882 had been received. Who are these children? Incest is believed to be the most common type of child sexual abuse. Even when a child is sexually abused by a non-family member, it is usually someone whom the child knows and trusts. Department of human Resources investigates referrals of children who are in need of protection. The case opened for treatment/services of the Incest Program primarily involve parent figure incest cases. In 34% of the cases, the offender was the child’s stepfather. In 28%, he was the child’s biological father. The offender was a man the mother was dating or living with in 13%. The mother was the offender in 2% of the cases. The remainder of the cases involved offenders who were other relatives. The age of the victims range from infancy to 18 years old, with 21% being pre-school age and 65% being 12 years old or younger. In 1983, eleven percent were males. The racial breakdown is similar to the racial make-up of the community. The victims come from all economic levels. What are the most common forms of sexual abuse? Sexual abuse usually progresses through stages, and usually begins with fondling. Rape is relatively rare (5%). In 1983, intercourse had occurred in 30% of the female victims. Intercourse had been attempted in another 11%. Fondling of the vagina occurred in 63% of the victims. Oral sex performed on the victim in 43%, and fondling of the penis occurred in 43%. The sexual abuse of children usually does not result in physical trauma. A medical examination may show a stretched rectum or a “marital” hymen if penetration has occurred. Fondling and oral sex rarely result in physical evidence.
Texas Department of Human Resources How does sexual abuse affect children? The emotional effects depend largely on the way the child internalizes the abuse. A one-time incident of fondling may be as traumatic to one child as full intercourse to another. Physical pain and long term abuse usually do result in more damage than one-time incidents. However, the most important factor is the way the family (and the rest of us) respond when the sexual abuse is reported. Children who are believed, supported, and protected tend to be the ones least damaged. Children who are not believed, or who are blamed for the abuse, tend to be the ones most damaged. Immediate effects of the sexual abuse may be feelings of guilt or shame. The children are usually too embarrassed and too afraid to tell anyone. This results in a marked change in behavior. As they struggle to deal with the abuse, active children may become withdrawn, and quite children become rowdy. Withdrawal from friends is common. Some children seek to engage other children in sexual activity. Some experience somatic complaints. Mose have difficulty concentrating on school work. Some become seriously disturbed. In all cases, the sexual abuse affect the child’s self esteem. The victims usually feel like “damaged goods.” Their poor self image will be reflected in the friends they select. As they get older, they tend to select partners who mistreat them. When the sexual abuse is by a parent figure, it confuses roles in the family. Her father becomes a lover and her mother becomes a competitor. Both are authority figures who cannot be trusted. These girls may grow up unable to relate well to either sex and to have poor parenting skills. The male victim may grow up to be an offender. The female victim usually remains a victim. At the very least, both sexes of victims will have trouble in their sexual relationships. When does touching become illegal? Some subtle forms of sexual abuse are damaging but not illegal. The single mother who turns her son into “her little man” may be distorting their roles. Children sleeping with parents may experience familiarity which produces guilt, even if nothing overtly sexual happens. Parents showering or bathing with children may be damaging. None of this is illegal. The offenses called “sexual abuse of a child” and “indecency with a child” require sexual intent to be proven. “Sexual assault” does not. “Indecency” involves sexual contact or exposure of the anus or genitals knowing the child is present. “Sexual abuse” involves sexual intercourse. “Sexual assault” involves penetration of the anus or vagina, or oral sex.
Texas Department of Human Resources
Cause Number XXXXX THE STATE OF TEXAS vs. XXXXX
IN THE 372ND JUDICIAL
§ § § § §
DISTRICT COURT TARRANT COUNTY, TEXAS
ORDER Before the Court is Defendant's Motion for Individual Voir Dire, and the Court being sufficiently advised, finds that said motion is meritorious and should be GRANTED; IT IS THEREFORE ORDERED that counsel for the Defendant will be allowed to interview each prospective juror individually regarding whether or not they, a close friend or relative have been the victim of an attempted or actual sexual assault. SIGNED this _______ day of _____________________, 2007.
______________________________ ___ JUDGE PRESIDING
Cause Number XXXXX THE STATE OF TEXAS vs. XXXXX
§ § § § §
IN THE 264TH JUDICIAL DISTRICT COURT BELL COUNTY, TEXAS
MOTION TO SUBMIT QUESTIONNAIRE TO VENIREPERSONS TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES XXXXX, Defendant, by and through his attorney of record, JEFF KEARNEY, and moves this Honorable Court submit an additional questionnaire to all venirepersons, and in support thereof, shows the following: I. Defendant is charged with XXXXX. II. Given the nature of the offense and the tremendous amount of national and international publicity generated by child sexual abuse cases which have received intense media scrutiny, most people have very deep and strong feelings about criminal charges concerning child sexual abuse. III. A vast majority of potential jurors are afraid or unwilling to voice their beliefs about these subjects because of peer pressure, fear of stigmatization, fear of public speaking and a host of other legitimate concerns. To minimize many of these fears,
courts all over the country are employing a jury questionnaire. IV. A jury questionnaire is an effective method of obtaining background information as well as critically important personal information from the potential jurors in a private and sensitive manner. V. A jury questionnaire is a tremendously time efficient mechanism that will require counsel and/or the court to only follow up on areas that raise a potential challenge for cause or that raise concerns that might justify use of a peremptory challenge. VI. A jury questionnaire will benefit the State as well as the Defense. Both sides to the litigation have the right to intelligently exercise their peremptory challenges. The questionnaire will lay the foundation for each side to intelligently exercise their peremptory strikes. VII. Attached hereto as Exhibit “1,” is a Proposed Juror Questionnaire. The Questionnaire is a single legal sized page. Defendant respectfully requests that this Court have the members of the venire panel fill out this Questionnaire before jury selection commences. If this Court will grant this request, undersigned counsel will
provide an adequate number of the Questionnaires printed on NCR paper, which, after being completed by an individual venireperson, will yield an original and two copies of the Questionnaire without any photocopying being required. Undersigned counsel will also insure that each Questionnaire will be attached to a cardboard writing surface and will provide each member of the venire panel with a ball-point pen to use in filling out the Questionnaire. In this manner, undersigned counsel will be able to provide the original of the Questionnaire to the court with a copy for the defense and a copy for the State at a minimum of inconvenience to the members of the venire, the Court, and court personnel. WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this Honorable Court submit an additional questionnaire to all venire persons. Respectfully submitted, ___________________________________ JEFF KEARNEY State Bar Number: 11139500 KEARNEY | WYNN 505 Main Street, Suite 220 Fort Worth, Texas 76l02 (8l7) 336-5600 (817) 336-5610 (fax) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion was via facsimile and First Class Mail to the office of Mark Kimball, Esquire, Bell County
Assistant District Attorney, 101 East Central Avenue, Belton, Texas 76513 on this _____ day of November, 2007. ___________________________________ JEFF KEARNEY
ORDER On this the _____ day of ______________, 2007, came on to be considered Defendant’s Motion to Submit Questionnaire to Venirepersons, and said Motion is hereby [GRANTED]
[DENIED]
___________________________________ JUDGE PRESIDING
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Pre-Trial Capital Checklist
Speaker:
Co-Author:
Philip Wischkaemper Lubbock Private Defender 915 Texas Lubbock, TX 79401 806.738.0437 phone pwischkaemperlaw@gmail.com email www.website.com website
John Niland
Director, Capital Trial Project Texas Defender Service Austin, Texas
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
PRETRIAL CAPITAL CHECKLIST (9-17-04) by John Niland Director, Capital Trial Project Texas Defender Service Austin, Texas Philip Wischkaemper Capital Assistance Attorney TCDLA
A Joint effort by Texas Defender Service and Texas Criminal Defense Lawyers Association This Checklist is a work in progress and describes only a few of the many steps that may be taken, pre-trial, in the defense of one charged with a capital crime. CURRENT ISSUES AND PARTIAL PRE-TRIAL CHECKLIST FOR CAPITAL CASES PREPARING YOURSELF The American Bar Association first adopted Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases in 1989. The ABA updated these Guidelines in February of 2003. The Guidelines describe mandatory practices that not only provide excellent guidance to counsel, but can be used to obtain the funding for assistance that is needed to adequately represent someone charged with a capital crime. 1. NEVER THINK “THIS IS NOT A DEATH CASE” •
Make sure that judge appoints 1st and 2nd chair counsel unless the state gives notice in writing that it will not seek death. Art. 26.052(e)
•
Visit the client immediately and often;
•
The first call should be to a mitigation specialist. If you don’t know one, contact TCDLA or TDS.
•
Begin preparing your penalty phase immediately, without overlooking the innocence 1
phase •
If you are retained: 1. 2.
•
Make sure that you have: 1. 2. 3. 4. 5. 6. 7. 8.
•
Make sure that you have been paid enough to cover not only 1st and 2nd chair compensation, but also the cost of all anticipated team members and expert assistance. Determine if your judge will declare your client to be indigent for the purpose of expert assistance. You are saving the county money by being privately retained. The county should pay the rest.
Death Penalty Law and Practice in Texas - Steve Losch (TCDLP); Texas Defender Service Death Penalty Mitigation Manual; Capital Murder Overview - Mark Stevens; TDS Capital Trial Project Motions Disk; Access to “members only” portion of TCDLA website; Subscribed to Capital Resource Listserve; ABA Guidelines For the Appointment and Performance of Defense Counsel in Death Penalty Cases, February, 2003; Texas State Bar Guidelines.
Network with Others in the field. Should you need assistance on any matter - big or small, contact: •Philip Wischkaemper at TCDLP (806) 438-0437 pwischkaemperlaw@gmail.com
•
REMEMBER: You are on the moral high ground. It is the defense that wants to stop the killing and who is arguing for the “culture of life”.
•
The D.A., judge, courthouse personnel may all be cordial, but at the end of the day, most of them want you to fail, and your client to die.
THE RELATIONSHIP WITH THE CLIENT (SEE HIM EARLY AND OFTEN) A. Initial Contact 2
“When you treat someone with respect and insist that others do as well you have achieved a great and noble purpose.” •
Make contact within hours after appointment.
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First visit – don’t ask about what happened - find out how the client is doing, what are his fears and needs, what questions he has, the facts can come later.
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Consider the Americans with Disabilities Act if jail fails to meet client’s needs.
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Jail cannot show “deliberate indifference” to the client’s medical needs. Estelle v. Gamble, 429 U.S. 97 (1976).
•
Talk with the client on his level, don’t demand that he rise to your level.
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Advise client not to talk about his case to anyone except trial team. • Emphasize that this includes family members—no privilege of communications. • Warn about sharing discovery. • Warn about snitches and consider using “snitch forms” to be signed by everyone in his pod/cell and which says: “I understand that _______has told me that he does not want to talk about his case with me and that I will not try and talk to him about it”)
•
Begin to establish rapport with the client. You cannot expect to have a good relationship with your client without regular contact. If a time comes to talk about a plea, he will not consider serving the rest of his life in prison unless he trusts and believes in your opinion that it is in his best interest.
•
Suggestions for developing the relationship: • • • • • • •
Find out what is important to him Find out what he can enjoy doing even while incarcerated (this will be useful at plea time when you are reminding him of what he can enjoy in prison.) Explain the charges and process. Explain that an exhaustive fact and mitigation investigation come first. Explain penalties - demonstrate your commitment to his/her defense and the need for client’s cooperation. Explain that mitigation does not mean you will be neglecting innocence issues, but that it would be irresponsible of any lawyer to go to a capital trial without having done as much on mitigation as on innocence. “It’s always easier to fight a conviction if you are alive in prison than if you are dead” Note - Most clients don’t like to talk about penalty phase, but can come to understand that it is a life insurance policy. Even if they 3
never come around to it, perform the penalty phase investigation anyway. Our clients do not make good decisions and his refusal to cooperate in a mitigation investigation is one. ABA Guidelines For Appointment and Representation in Capital Cases require that these investigations be performed. It is not the client’s call. •
Get Authorization for Release of Information forms signed (including the drug/alcohol/mental health language. Revoke any prior releases including those given to law enforcement. Releases should include all the names of the defense team.
•
Explain the team nature of the defense.
B. Overcoming and working with cultural differences •
Acknowledge any differences;
•
Consider cultural differences when choosing team members;
•
strive to understand how the client’s culture may influence his behavior. If we don’t understand it, we will never bel able to explain it to the jury.
C. Jail •
Explain Skipper evidence and how you will use it and how the State will use bad behavior against him. • •
“Don’t give them anything they can use to kill you!” Help him to stay occupied with the things you have learned that he likes to do. Get him magazines, books, writing materials.
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Deliver Reservation of Rights to jailer, copies to anyone who might want access to client
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Adjust social visitations if necessary and eliminate those visitors that may be causing trouble.
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File motion to prohibit disclosure of identity of client’s non-family visitors so DA won’t subpoena them.
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Does your client have any needs that should be met in his jail accommodations under the Americans with Disabilities Act (Use your imagination)
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Stop jailors who “set the client up to fail”,i.e. puts him in situations that will result in fights and other conduct that will be used by the state during the penalty phase. 4
•
Promise regular visits and follow through - this makes you a person of your word and you will be trusted.
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Do you treat your client as well as (or as bad as) the doctor treats you during a visit?
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Tell him “I can’t solve all of your problems, but I will try” - this includes jail condition problems which are often at the top of their list- if you are seen to be trying, it will increase his faith in you and your understanding of his priorities.
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When talking about the client’s life ask for general information and then move to more specific and sensitive areas.
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Ask about significant members in family-start to identify the Alpha Personality (the most significant and positive person in his life).
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Talk about the facts of the case at the appropriate time, not always during first visit.
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Observe client’s personality & signs of disorders so that you can better understand why he acts the way he does. You don’t need to be able “diagnose” to identify.
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Prepare a Reservation of Rights and send to EVERYONE involved in investigation and those with access to your client, including the jailor. (See motions disk)
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Prepare Motion to Preserve Evidence (See motions disk)
D. Preparing the Client for the Battle Ahead •
Ask him how he views his situation. Is he serious? In denial? Unable to deal with it?
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What does he want out of the process?
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Teach your client what he needs to know, how to act, how to handle criticism, how to act in court, in front of the press, when he hears bad news.
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Litigate issues that many would ignore, like civilian clothing for pre-trial hearings. The more that he sees you fighting for him the more confidence he will have in you. Aggressively litigating motions can make a world of difference in your relationship with the client.
PLEAS •
Take off your watch and spend hours him - show that the plea is about his well5
being and not about your schedule.
•
•
ONLY talk about a plea in the context of all the other work that you are going to try and do - research, investigation, motion practice, experts etc. Plea is not an easy “cop-out”
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Realistic risk of dying? Merely remind him that he is in Texas.
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Make odds clear - explain Witt and effect on jurors, discuss track record of DA, talk of weaker cases which resulted in death;
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Are there inmates on death row who had plea offers and didn’t take them and now regret it?
Discussions with the Client Who Volunteers to Die •
Emphasize that he will not be a martyr, show how low key executions are now ask him to name the last four people executed by the State.
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“Why do you want to do this to your family?” “What about your mother?”
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“What will your son feel when he reads about your death in the newspaper”
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“What does that say about the children if the father is not worth saving?”
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“What example can you provide to your children by living?”
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“Think of the things that you enjoy during life that an execution will take away.
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“Why do you think you will have won if they execute an innocent person?”
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“What are you going to prove by dying?”
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“We both dislike this DA– why let him win? We win when you live”
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Use allies, such as lawyers who have been through executions, family members and God.
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Commiserate - his situations sucks and he needs somesympathy/empathy.
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If he is afraid that he cannot do the time-compare the visitation privileges on death row and his likely classification. 6
•
•
Have a positive inmate write to him and tell him what it is like - TDCJ is not like life in a local jail
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Involve the “alpha personality” who wants the client to live and can tell him why.
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Expect no thanks, but don’t give up. You are the adult in the relationship.
Negotiating with the DA •
An aggressive motion practice with 40+ motions that may require a response in writing within a few weeks of the indictment let the prosecution know that they have a long and expensive struggle ahead of them.
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Emphasize costs to the county, “Wouldn’t you rather have a new fire truck?”
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An excuse for plea discussion “I will be found ineffective if I don’t”.
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Show them precedent for similar pleas (give him something to hang his hat on)
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Write and communicate all the reasons it is NOT A DEATH CASE (give him something that will satisfy the community if your client pleads to life)
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VICTIM’S FAMILY: Approach them, but don’t talk about a plea at first. Be available to explain the process. Show sympathy and explain (when appropriate) how a plea can meet their needs and avoid a process that seems to never end.
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Valuable information that may come only with a plea: • What were his last words? • Did he suffer? • Why did you do it? • Who are you?
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There is no such thing as “closure” only a point at which they can get on with the rest of their lives
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A plea allows the focus to be on the victim and not on the client (for 10 years +)
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Will they communicate a desire for a plea to the DA?
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Are there negative issues that the family would not want to hear at trial?
LOOKING FOR POTENTIAL MENTAL HEALTH ISSUES 7
1. From the Start...consider the competency issues at all phases. Is you client competent to be arraigned on the charges, to assist with your motion for bail? •
Contact your mitigation specialist ASAP. This person should also be visiting the client early and often.
•
Have all the team members who have contact with the client on the lookout for signs of mental health issues
•
If there is evidence of psychosis, consider videotaping the client’s actions with psychiatrist present to interpret.
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medication–consider the appointment of a guardian if warranted: (1) you have the determination of impairment in a less adversarial proceeding; (2) the state has to deal with that finding throughout; (3) the guardian is entitled to sit at counsel table with the client.
•
Involuntary medication: See Sell v. United States 539 U.S. 166 (2003) (1) medically appropriate; (2) must not impair fair trial (no “zombie”); (3) least intrusive/debilitating to make accused competent.. Also Tex.C.Crim.P. 46B.
2. Signs of Mental Health Problems •
Observe the client’s facial features for indication of Fetal Alcohol Syndrome (FAS): • • • •
lip; short,
short eye lid slits; fold of skin next to nose that covers inside part of eye; short, flattened nose; undeveloped groove between bottom of nose and top thin upper lip; crossed eyes; drooping eye lids; small chin; long arms; malformed ears; small head; small jaws
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Observe the way the client walks, talks, reacts, responds etc.
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Find out what medications he is on, has been on.
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Determine what if any medication you want the client to have–don’t we want the jury to see as he was when he is alleged to have committed the crime, confessed?
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Get copies of the intake paperwork ASAP and interview those that made arrest and were there when he was brought into jail. How did he behave/look/say? What did the jailors do in response?
•
Consider the possibility of competency to understand rights, waive rights, give a 8
voluntary statement, stand trial– a continual evaluation in light of the demands of a capital trial. •
Maybe the apparent lack of remorse is because he cannot tolerate the pain that comes with acceptance of responsibility. Juvenile from traumatic background may not show emotion, it was his job or way to cope in a dysfunctional family.
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Recognize the deficits. The client may not be in denial but may have a neurological deficit that reduces cognitive ability.
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Does he suffer from ADD so that he will have a hard time following what is going on in trial?
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A mentally disordered client will often have poor insight (“I am ok, you are the one with the problem). This is not denial, it is a neurological-cognitive deficit or symptom of brain dysfunction. Working with this client takes constant effort, ignoring it will not make the problems go away.
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You have only to deal with the “enemy” posed by his mental illness. The client has many enemies, and he may perceive his lawyers as being among them.
A. Mental Illness and Retardation •
They are two different conditions and should not be confused. However, those with retardation are more likely to suffer from a mental illness.
•
Consider a guardianship of the person that gets you an “incapacitated” finding early and helps to control the medication of the client.
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Try to extend Atkins protection to the mentally ill.
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Be aware of the possibility of Autism and Aspergers Syndrome.
i) Mental Illness Reality Confusion • Seeing things that are not there, voices, smells (possible brain damage) • Inappropriate giggling, nodding, speaking • Everyone hates/loves me/is out to get me or irrational fears not related to genuine safety issues • Inability to recognize people who he should know Speech/Language • Manner of speech (very long answers, long answer/no information, changes idea in midstream) 9
• • • • •
Inappropriate repetition of words, mixing up words or phrases, speaking “foreign languages” Pressured speech, talks too fast, interrupts inappropriately or speech is delayed or interrupted. Does he sound explosive? Mispronounced words, monotone, very formal. Constant repeating of phrases that they hear (echolalia)-possible schizophrenia Writing very small or very large
Memory/Attention • Trauma (emotional or physical) may cause amnesia • Erratic attention problem (ADD or other learning disabilities) Medical Condition • Hypochondria, self injury/mutilation, problems sleeping, problems eating • Headaches, ringing in ears may indicate a neurological deficit Emotional Tone • Anxious, suspicious, depressed, emotionally labile (dramatic emotional/mood swings) • Flat affect (emotionally dead) • Love you one minute, hate you the next Poor Insight • Denial of problems • Denial of need for medication • Poor self identity–“The jurors need to tell me that I was right”–sure they will. Physical Indicators • Agitated, twitching • Hyper vigilant (always on edge, eyes darting around, anticipating danger) • Inappropriate gate when walking, shuffling of feet not attributable to restraints • Poor motor coordination Social Interaction • Inappropriate interaction with others (hugging, affection, advances, assaultive behavior) • Inappropriate response to social cues •
Working with the Challenging Client •
Be empathetic (without agreeing with him) when he tells you something that may sound bizarre e.g., “that would certainly explain it.” or “That may make a lot of sense.” 10
• • • • •
Give him some control - “How would you like things to be?” Be realistic – “What are the chances of that happening?” “Why?” Deal with the client on his level–don’t expect him to rise to your level. Don’t give up, you are the adult in the relationship. See - I Am Not Sick, I Don’t Need Help? By Xavier Amador. Accept collect calls from the jail in reasonable numbers and at reasonable times. . Even if you are not in the office, prepare your secretary to talk briefly about non-confidential matters. This can really keep problems from getting out of hand.
ii) Mental Retardation-critical to understand in light of Atkins v. Virginia. Proportionality themes are important in all cases. Signs • • • • • • • • •
• • • • • • • • • •
unaware of social norms, appropriate behavior/inappropriate affection Repeat phrases (echolalia) or reverse pronouns acts younger than actual age–hangs out with a younger crowd low frustration tolerance/poor impulse control Poor memory–if given the change will choose the option they heard last. Problems reading, writing, making change or telling time difficulty focusing and is easily distracted awkward or poor motor coordination If the client’s school and medical records show that he has an IQ of 70 or less +5; onset prior to 18 and impaired adaptive functioning in areas of social skills, responsibility, communication, daily living skills, personal independence and selfsufficiency he likely suffers from mental retardation and all its associated problems. The same condition with post-18 onset is likely traumatic brain injury (dementia) Inability to count change in simple transactions Client has no driver’s license or someone helped him with the test. Someone else has always cooked, cleaned and taken care of basics. limited vocabulary for age level difficulty understanding/answering questions can’t communicate events clearly in own words inability to comprehend seriousness of situation and consequences easily led or persuaded by others naive eagerness to confess or please
Lack of Signs • •
Cannot assume the client is not retarded merely because he looks “normal” The client has spent his whole life learning how to NOT appear retarded and will do the same with you. 11
• • •
The notion of retardation is offensive to those afflicted and they will hide symptoms Client will claim to have “learning disability” as this is how it was rationalized to them “I have always been kinda’ ‘slow’”
Communicating with a Client who is mentally retarded • • • • • • • • • • •
keep surroundings quiet and free from distraction make eye contact before speaking and say client’s name use simple language, repeat points, speak slowly and clearly, short sentences clearly identify self, explain why you are there give one direction or ask one question at a time Don’t limit client’s possible response to “yes” or “no”– ask open ended questions Be patient for responses Ask him “tell me a time when....”, not “were you ever....?”. Event may have never happened but you are more likely to get an accurate response. Avoid asking “do you understand?” He will generally just say “yes” Ask client to repeat back concepts, in his own words, to assure understanding Avoid suggesting what you want the answer to be as client will want to please you treat adults as adults–client will not react well to patronizing attitude
iii) Ways to Learn More About the Client’s Mental Status •
Have them repeat back to you what you have told them
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Ask them to read the indictment and see how accurately they do so
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Communicate with other members of the team on their observations
• •
Carefully review the records obtained by the mitigation specialist. Give the client simple problem to solve, e.g. What coins should I received in change...?
•
If client begins to deteriorate while awaiting trial, have your mitigation specialist talk to him on a regular basis. Consider very carefully whether or not medicating your client will be consistent with your pre-trial strategy and strategy during trial.
3. Client’s Background •
Have the client write his life story-provide him with envelopes/stamps and limited paper so they he can mail you a few pages at a time–it does not sit around so others can read it. 12
•
Recognize that for a number of reasons the client may be a poor historian so the investigations by the fact investigator and the mitigation specialist are critical.
A. The Family •
Make contact with the family (or what is left of the family) ASAP. Good rapport with the family is necessary to get the most information and support should a plea be offered..
•
Explain the charges and the process. Be patient and be willing to explain several times– they might listen to what you are saying but they might not hear what you are saying. Make yourself available to them at all times.
•
It will be difficult for the family members to acknowledge the failures and crimes that have contributed to your client’s life.
•
Explain the concept of confidentiality.
•
Explain the importance of mitigation and why you might be inquiring about embarrassing information.
•
You must make it relate to the offense. It is not the “What?”, it is the “So What?”
•
Identify the alpha personality: Ask the client who are the 5 most important people in his life, then ask those 5 the same question. Who does the client call/write regularly and who has the client’s best interest at heart? Who accepts the expensive collect calls?
•
After the initial contact, avoid interviewing family members together - interview separately for more honest answers and to prevent an allegation that you tainted the group or “cooked up a story”.
•
Go through photos with them - a great way to get people talking about the past.
•
Same with school reports and certificates etc.
•
Establish one family member as the representative for news and communication (so that you don’t have to explain to each of them every time something happens) but agree to meet occasionally with all interested.
•
Discuss with family the importance of appearance and saying the right things or nothing at all
•
Prepare them for the media
•
If there is no family, consider recreating a family unit 13
•
Talk to ex-family members. Former husbands and wives love to “dish the dirt”.
THE TEAM •
Consider team members that can work well together. Don’t create any problems you don’t need, but be aware of race and gender issues that may arise with client and within team.
•
Establish clearly defined roles and obligations and who has ultimate decision making authority - distinguish the core members of the team from those collateral members who will know less.
•
Move for funding for fact investigator and mitigation specialist (Forms 3). Have them start even before orders are signed, if possible.
•
Make sure the team members understand the importance of the client relationship. For the challenging client, discuss ways of meeting the needs of the disordered client. See - I Am Not Sick, I Don’t Need Help? By Xavier Amador.
•
Introduce team members to the client and authorize him to speak and cooperate with investigators and none other.
•
Have investigators meet with the client together when possible so that client does not view mitigation investigator as bad (guilty) and fact investigator as good (not guilty)
•
Warn and therefore immunize team against any attempts to split team by client, especially the client with a borderline personality disorder.
•
Consider which team member(s) will be available for client to “vent” if he needs to talk about case - some clients will need someone to be mad at –direct that to the state/prosecutor
•
Decide on schedule for team meetings and schedule the first one.
DO NOT START WITH PSYCHOLOGICAL TESTING AT THIS POINT! IT MAY COME BACK TO HAUNT YOU OR WASTE MONEY. IF YOU HAVE A CLIENT THAT IS PSYCHOTIC, CONSIDER A PSYCHIATRIST TO MONITOR AND PERHAPS VIDEOTAPE BEHAVIOR. 2. Mitigation Specialist–See Wiggins v. Smith, 123 S.Ct. 2527(2003)
14
•
Have a working relationship with your mitigation specialist so that he/she will go with you to visit the client, make observations and assist with preparation of affidavit in support of motion for funding
•
Draft Motion for Funding for Mitigation Specialist with affidavit, file under seal, ex parte hearing with judge, provide clerk with envelope (with appropriate warning on outside) so that motion and order is kept under seal;
•
Get all of the expert assistance you reasonably need–spend money wisely–consider free alternatives when possible/advisable–judge’s trust is vital so be responsible.
•
Make record and preserve issue if judge denies you funding–consider mandamus-remind the judge at each stage of the proceeding how denial is impacting representation 5th, 6th, 8th, 14th Amendment and Article 1, Sections 3, 10 & 19.
•
Consider Omnibus Funding Motion for lump sum (your trust account) after considering needs, budget and costs
•
Mitigation Specialist begins client history (bio/psycho/social) with emphasis on: • family • employment • schools • medical history • psychiatric history • medical history • drug and alcohol use by client and entire family • hospital • doctors • social workers • CPS • juvenile records • probation and parole officers and reports • juvenile, jail and prison guards • counselors • psychologists and psychiatrists • friends • teachers • neighbors • priests • ministers • military history • prior criminal history and unadjudicated offenses 15
• • • • • •
records of prior incarcerations religious activities hobbies and other interests affiliation and membership in groups (good and bad) welfare and SSI records relationship, if any with victim
•
Specialized releases are obtained from client–names all team members, revokes any prior releases given and contains the required drug and alcohol treatment language.
•
Mitigation specialist interviews those people who are suggested by the records
•
Records are summarized for lawyers and additional records that are mentioned in initial set of records are requested
ORGANIZING THE CASE 1.
Read the indictment
•
Re-read Penal Code Provisions: • Section 19.02 (murder statute) • Section 6.03 (definitions of culpable mental states)
•
Set up master list of contact information for everyone involved in the case (addresses, phone numbers, e-mail addresses)
•
Bate-Stamp and annotate every document (eg police reports, school records). They will contain information that will go into the following four documents that should be constantly maintained. 1.
A master index
2.
A time-line of your clients life from birth to the time of indictment - the time-line will cover many years in one page in parts and minutes over many pages (eg around the crime time) in other parts 3. A witness list detailing everyone mentioned in any document anywhere 4. A theory memo. E.g., The two documents detailed below would be used in the following ways. 1. Master index
16
Bate-stamp number
Title
Date Created
Details
Police Report of 07.01.02 Officer X
Officer X interrogated client for 3 hours, reports that client was unresponsive to questioning and seemed to have problems concentrating - 0002. Officer X reports suspected drug use - 0003
School Records from Austin High
First School - San Marcos Junior School. Showing that John had behavioral problems 1st-3rd grade, but that he started special ed in 3rd grade. Teacher at the time - Mrs. Smith optimistic about the effect that it would have on his behavior. 0028. Slight improvement for two years. 0032. Moved to Austin High and behavior deteriorated again. 0034.
0001-0004 0027-0040
08.08.90
2. Time line Date
Time
Event
09.82 - 05.83 -------
11.84
11.15.84
06.30.02
John Client in 3rd grade, taught by Mrs. Smith. John Client starts special ed classes. Mrs. Smith was optimistic that it would improve behavioral problems too. 3rd Grade School Report 00280029. John moves with his mother to Austin John starts at Austin High School. His behavior is at once noted as impulsive and disruptive. Austin High School, 5th Grade Report 0034.
11.37pm John Client taken into interrogation room by Officers X and Y.
3. Witness List Mrs. Smith 402 Laurel St Austin, TX 512-111-1111 John Client’s 3rd grade teacher, when he started special ed classes. 00028. Liked John and was hopeful about special ed for him. Officer X City of Austin Police Dept
17
Badge Number 0001 715 E. 8th St, Austin, TX 78702 Interrogated John Client on 06.30.02 - 07.01.02 from 11.37pm-2.30am, with Officer Y. Reported that John was unresponsive and that he suspected drug use. 0002-0003 4. Theory of the Case Memo 1. John Client is innocent a) The confession was false i) John Client is retarded and was particularly susceptible to suggestion. In Officer X’s report, he describes him as “unresponsive” during questioning. Report of Officer X, 0002. John Clients school reports show he was in special ed from 3rd grade until 8th grade. 0027-0040 ii) John Client was suffering from withdrawal from drug X and was saying anything in an attempt to get out and get another fix. The police knew this and capitalized on it. Report of Officer X. 0003. b) The eyewitness was mistaken i) The lighting was poor ii) She was high as a kite... etc •
Set up a notebook or file for each state and defense witness - a copy of each document that has that person’s name on it will go in that person’s file.
•
Set up a notebook/file for each mitigation theme as it is identified
•
Decide on plan for contact with victim’s family - who will be the go-between? family member or friend, pastor? Possible letter? EXAMINING TRIAL – Art. 16.01 C.C.P.
•
Right to ET (Art. 16.01), but motion will likely result in indictment
•
Evaluate the right: Weigh benefits of discovery against harm from additional publicity
•
“Rush to indict” may help with Apprendi motion and argument (see Motions Disk)
•
Unlikely to get one, but be prepared anyway.
•
Right to cross-examine/rules of evidence will apply - make sure all testimony is recorded and transcribed - it makes great impeachment for later on.
•
Notify client’s family so that they can hear the evidence & comprehend the seriousness as well as show support for the client. 18
•
Decide purpose of the ET - discovery or do you have a strong enough case to argue that there is only probable cause for holding your client on reduced charges (eg simple murder) which are not capital?
•
Review scene of crime before ET
•
Have judge/magistrate rule on the Motion to Preserve Evidence (“Judge, do you really mean that you don’t want the state to preserve the evidence in this case?”)
•
Subpoena officers to bring their reports and ask for copies at that time
•
Subpoena all the evidence to the ET
•
Look for and develop issues on: • search and seizure • confession (competency to comprehend, to waive, knowing waiver, voluntariness, request for counsel, Miranda, evidence of coercion)
•
Find out everyone who was involved in the investigation, who prepared reports, what evidence was collected, by whom, who tested it, what were the results, who has it now?
•
Who had contact with client? What did he act like? What did he look like?
BAIL - Art.16.15 •
Bail can only be denied when the “proof is evident” that offense occurred, that client is guilty, that jury will convict and return death verdict. Angleton v. State, 955 S.W.2d 655,657 (1997), rev’d on other grounds, 971 S.W.2d 65 (1998)
•
If bail is denied move for bail hearing and require state to prove that elements are “evident”
BRAINSTORMING AND DEVELOPING A THEORY OF THE CASE THERE IS NO SUCH THING AS A BAD IDEA DURING BRAINSTORMING SESSION •
For Brainstorming there must be no preconceptions and there should be divergent thinking
•
Have all team members (lawyers, investigators, mitigation specialists) there. Consider asking other attorneys you trust but who do not work on the case to join in - fresh perspectives are always good. Make sure you have at least one lay person. 19
•
Be confident and creative, not bound by the way it has been done. You can make a difference.
•
Choose a leader to direct discussion and ask: “How else?” “What else?” “ What other things?” “How does that explain the client’s conduct?” “ How does that help us?” “How does that harm us?” Why would that be important to a juror? What is the real issue here?
•
Have someone record ideas and discussion, use a flip chart with large tear off sheets, hang on the wall and write EVERYTHING down. Don’t eliminate or prioritize now.
•
Get reports from the fact and mitigation investigators–what do they still need to do?
•
Identify the “facts impossible to change” that limit both the defense and the prosecution
•
How do we deal with/embrace the bad facts we cannot change? Can we use them (along with the good facts) to advance the theory of our case?
•
Begin to develop a list of issues to address jurors in voir dire
•
Develop a list: “What are we afraid of” and address each with : (1) motion in limine, (2) motion for discovery or to suppress, (3) rebuttal testimony.
•
Anticipate state’s arguments and develop persuasive ways to neutralize.
•
What stories can we tell and what “pictures” can we paint with emotional words?
•
Schedule regular follow-up sessions to further refine the process
•
Consider assignments to each team member for completion by next meeting
THEMES OF DEFENSE AND MITIGATION •
Developing a theory. This preparation will: 2. Reduce trial anxiety 3. Give direction for motion practice 4. Focus and prioritizes voir dire questions 5. Give a mini-opening 6. Organize the case 7. Tell you what facts you must develop with each witness 8. Identify jury instructions and 20
9.
Provide points for closing
•
Prepare case from closing back to voir dire. You have to know where you are going to get there.
•
Copy the jury instructions that the court will use and those that you will want to tender along with objections that you will want to make.
1. Think Outside the Box, but Keep it Simple A. Merits Phase •
Develop a theory-a three (3) sentence paragraph that embodies client’s claim of innocence or reduced responsibility. Refer to “Culpable Mental States” above and decide where you can fit the client and what evidence there is to get the instruction?
•
Does the theory explain “why” something happened? Theories that may be Inadequate without additional development: 10. Mistaken identification 11. Self-defense 12. Reasonable doubt 13. Bad cops
Κ How do we “transition” from guilty verdict to plea for life while retaining credibility and residual doubt? Work through this issue from beginning to end. You can transition even the unsuccessful “not guilty” theory by telling the jury: (1) you need to know everything about this person before you decide punishment; (2) this is why he is not the type of person who would commit the crime; (3) this is why he would be suspected of committing this crime.
B. Mitigation Phase •
Remember: at the mitigation phase you will be talking to a jury that as not “bought” what you were selling in the merits phase - consider separate lawyers for merits and mitigation phase and methods to deal with the adverse merits phase verdict.
•
Develop a three sentence paragraph that humanizes your client and put his actions in context with a life that was chosen for him and that will show the jury that death is not appropriate in this case. It is not the “what” (perceived as an excuse) it is the “so what” (received as an explanation). 21
•
Narrow theories: What would the headline in the local newspaper be if it described each of your theories?
•
Soundbites - theory that is verbalized and paints a mental picture of your theory such as “virtue is its own reward”, “nice guys finish last”, “unwilling accomplice”, “frightened, “forced and falsely accused”
•
What does the jury need to hear that will make them choose “not guilty” or “life”
•
Work towards and answer to each of the 15 questions (form #4)
•
Complete the brainstorming information sheet (form #5)
DECEASED’S SURVIVORS •
Get obituaries from the newspaper to learn something about the deceased, family and possible church affiliation
•
How do they feel about the death penalty–is family unanimous?
•
APPROACH THEM - don’t assume the prosecution is speaking for the family. Use the appropriate intermediary, perhaps someone who has not met the client and therefore is not too closely associated with him. Consider writing first and ask them about their needs.
•
Being compassionate to the victims does not mean you are disloyal to client. This is one way to show acceptance of responsibility and remorse or just kindness.
•
Always prepare a polite greeting/expression of sympathy for possible encounter at courthouse
•
NEVER SAY “I KNOW HOW YOU FEEL”
• •
Help for plea discussions. Consider letting them know: : • that the media focus can be intolerable and it will go away with a plea. • The client could have information that could only come out with a plea (last words of victim, why he did it, did my loved one suffer, etc.) • Everyone can express their feelings at a formal sentencing • With a plea, the spotlight will no longer be on the defendant • Client can accept responsibility on the appropriate level and the sentencing can serve as a time from which the family can get on with their lives. A trial and execution will not bring “closure”–it does not exist. • In a high profile case, to allay fears that someone will “write a book”, consider 22
assigning any literary rights to a family foundation. INVESTIGATION •
Do not think of the penalty and guilt phases as separate trials - the same themes should be present throughout. All investigation should be conducted with a view to obtaining evidence helpful to both phases. Segregation below is for organization only
1. Merits Phase •
Save all newspaper articles
•
Get to crime scene ASAP, even if it is “cold”you will learn something
•
Interview all of the paramedics and EMTs who were on the scene
•
File Motion to Preserve Evidence
•
Personally inspect physical evidence ASAP as this may influence your theory–you will always learn something.
•
Consider getting the evidence tested by your own expert–don’t take their word for it unless challenging the evidence is not consistent with theory.
•
Immediately obtain any dispatch notes and copy of 911 tape – they won’t keep these forever. Don’t rely on a transcript that has no voice inflection or sense of urgency
•
Start a time line of crime and everyone involved - add to it as each piece of paper comes into them office. Keep multiple time lines for, eg differing police reports, client version, co-defendant version etc.
•
Consider possible eyewitnesses, alibi, background of victim and relationship to client
•
Serve the tough subpoenas yourself if you really need the witness
•
Talk to all State’s witnesses yourself. If they won’t talk to you - impeach them with it at trial. Take statements from them if possible. If not, have two people present for verification of inconsistencies later.
•
Pull every record on every State witness and your own - including criminal and mental health history on all witnesses and their reputation in community
•
Consider Texas Public Information Act and Federal Freedom of Information Act 23
•
Run the names of everyone through the internet
•
Check with DPA website for criminal histories
2. The Medical Examiner •
Make contact and obtain copy of autopsy/toxicology report
•
Make arrangements to discuss the case
•
If DA insists on being there, get protective order and cross-examine the ME on any preference he has shown DA, “What is he afraid of?”.
•
Find Out: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18.
Who accompanied the body? What does the condition of the body tell you about the time of death? What do the wounds/cause of death tell you about the killer? What was the ME told about the facts of the case/possible cause of death? Did ME rely on any of this in forming an opinion? How does his findings support the state’s theory of the case? What findings are inconsistent with that? What might be subject to a different interpretation? What does the victim’s toxicology (if any) mean? Sample from vitreous fluids? Are there any offensive wounds? What does this mean? Are there any defensive wounds? What does this mean? What other evidence did she take, e.g., finger nail scrapings and who was evidence delivered to? What was done before, during and after exam and why? What crime scene evidence would she have liked to see but didn’t? (wasn’t provided/wasn’t collected) Has DA interviewed her? Does this DA usually do so? phone? in-person? Rule out any indication that this was an “execution style killing” and why. They love that description. Look at every picture/slide-what do these tell us and how do they support/impeach conclusions? Write the ME a follow up letter, thanking her for appointment and confirming important details - “just so that I won’t forget” – especially if “execution style killing” is negated.
3. Mitigation Phase •
What can you do to develop good person evidence while in jail? 24
•
Is your client sympathetic or likeable? Is he the “stereotypical capital murderer”? What can you do to change or emphasize the perception?
•
Pull every record on every State and Defense witness - including criminal and mental health history and get an idea of their reputation in the community.
•
Your mitigation specialist will help the trial team develop the mitigation evidence and develop the theory and themes that support the theory. This is critical
•
The mitigation theory should not be viewed as an excuse for your client’s conduct. It should be viewed as an explanation of how he got to be where he was when the crime was committed.
•
The mitigation theory will humanize the client and put his actions in context with a life that was chosen for him by someone else. D.A.s are fond of telling the jury that your client “had a choice”. You client did not choose most of the circumstances that have formed his life.
MEDIA •
Strategy - To Cultivate or To Avoid?
•
To Cultivate • Understand their concerns/deadlines, return their calls, don’t ask to see an article before it’s printed, don’t ask if you will be quoted accurately - all highly offensive. • Advance theory with appealing press angle at every opportunity • Prepare statements in advance and provide them with copies of motions with summaries • Don’t respond by saying “No Comment” - develop expressions that can advance theory of the case or at least do no harm. Consider: • • “I know that the people of this county want to wait until they hear all of the evidence before they make up their minds” •
“We are pleased that we will have an opportunity to defend ourselves in court”
•
“Our sympathies go out to the family of the deceased”
•
“I know the people of this county to be fair minded and I
know that they will be in this case”
25
• •
•
“We sincerely hope that the opinions within the community will not be influenced by media coverage of this tragic event”
•
“We will be working hard in the days to come to investigate this case as thoroughly as we possibly can. At this point there is little that we can tell you”.
•
“We know that the prosecution is aware of the ethical considerations of what can and should not be said in the media (TDRPC) 3.07, 3.08 and 3.09) and we are confident that they will abide these important rules
•
If you are unable to comment (privilege, juvenile etc,) explain why.
•
Be courteous to the press, return phone calls, communicate with them to advance the theory.
•
Print media has more room to tell the story–tell them how to build the clock.
•
Broadcaster are looking for brief “soundbites”, just tell them what time it is.
•
Media Motions to Consider • Motion to Keep electronic and photographic coverage from pre-trial hearings. •
Motion for Client to Appear in Civilian Clothing at Pre-trial hearings
•
Motion to Prevent Client being led into the courtroom in shackles when if press are present.
•
Motion to Remedy Prosecutorial Abuse (e.g. commenting on conviction obtained for purpose of penalty phase at imminent capital trial, prosecutorial misconduct under Sections 3.07 and 3.08 of Texas Disciplinary Rules of Professional Conduct)
Have someone on the team make a record of all press accounts for possible change of venue or for inquiries at voir dire. General Publicity/Fairness Motions to consider because of excessive coverage 2. 3. 4. 5.
Motion for a Gag Order (be careful of what you ask for) Motion for Change of Venue (do you really want to go to East Texas?) Motion to Expand Voir Dire because of publicity. Motion for Small group/individual sequestered VD - problem of taint 26
6. 7.
Motion for additional peremptory challenges Motion for sequestration
THE PROSECUTOR KNOW YOUR ADVERSARY •
Evaluate the relationship of lead and co-counsel with DA.
•
Get copies of previous arguments in guilt and penalty phase.
•
Find Out 8. What is reputation in the community? 9.
Position on the death penalty?
10.
Susceptible to pressure from either side?
11.
Previous verdicts in capital cases?
12.
Who is driving the election to seek death: DA, law enforcement, victims, facts or all of the above?
13.
Any indication of bias in seeking death? Check the race of defendants and victims in previous cases. Bush v. Gore Motion (not just arbitrary and capricious over TX, but arbitrary and capricious within your County)
14.
What “bells and whistles”, technology do they use in opening and closing arguments?
•
Consider making a mitigation presentation to DA or committee in the hopes of precluding death as a sentencing option.
•
Does she observe Rule 3.09 of TDRPC?
•
Move for Disclosure of Any Grounds for Disqualification and then to disqualify if appropriate.
•
Deal with prosecutor with eye towards a plea-don’t let personality conflicts spoil chances.
•
Figure a way to give the DA a “back door” or “save face” with a plea–death is not required. Realize what the DA needs out of the situation. Is there a “Win, Win”?. 27
Ake Funding •
Ask for all the expert assistance that you need for issues that will be “significant factors at trial”. Ake v. Oklahoma, 470. U.S. 68 (1985), Art. 26.05.
•
Specify (1) what you want, (2) why you want it, (3) what you will do with it (how it is relevant to the defense) (4) who will do it for you, (5) why are they capable of doing it, (6) how much will it cost, (7) why the judge should give it to you (how you will be harmed if denied)
•
Make sure the application for expert assistance is Ex Parte and sealed in the court record.
•
Be aggressive–make a record–don’t give up. “No” means “Not yet”
•
Draft letter of agreement for confidentiality with all experts (Expert’s work product is privileged. (Ballew v. State, 640 S.W. 2d 237, Tex. Crim. App. 1982)
Development of Mental Health Evidence •
Develop the evidence “incrementally”
•
Avoid having the client “shrunk” or “assessed” until you have a better idea of what you are dealing with.
•
A Suggested Approach •
Begin the investigation with a qualified mitigation investigator–often a Master Social Worker.
•
Should the client exhibit signs of psychosis, a psychiatrist will be called in to observe–consider a guardian of the person. (alpha personality?)
•
The mitigation investigator will interview the client, family members and all those who are indicated by the psycho-social history.
•
by the
The mitigation investigator will then collect all records that are indicated psycho-social history.
•
These record are reviewed for indication of additional interviews/records that are needed.
•
The trial team then retains a consulting mental health expert who can review the psycho-social history and work of the mitigation investigator and identify mental health issues for the trial team to consider. 28
•
The trial team than can efficiently identify and develop theories of defense and/or mitigation and choose one or more experts who will serve either as testifying experts who will inform the jury and/or provide opinions that are based on a review of relevant documents and appropriate tests.
•
Contact is made with the testifying expert by a focused “referral question” that asks the expert to consider on or more clearly defined areas that underlie the defense/mitigation theories.
•
Documents that are relevant to the chosen theories are provided and relevant tests may be performed. If following a review of the records and review of any test raw data, the testifying expert can support the theory of defense/mitigation, then she will testify at trial.
•
If the records/tests do not support the theory then it will be reevaluated.
•
The testifying expert will then either educate the jury about the issues or educate and provide one or more opinions. The testifying expert can then use the results of all relevant evidence, tying together what may appear to be loosely related factors that will explain the client’s conduct, not offer an excuse. The testimony will hopefully humanize the client and put his or her actions in context with a life that was chosen by someone else.
•
All motions for funding should be done ex parte as is authorized by case law and statute.
•
Once it is known that mental health evidence will be offered by the defense and the prosecution seeks a state sponsored exam, the trial team will seek to ensure that a carefully worded order is signed by the judge which limits (a) the scope of any state sponsored exam, (b) the use by the state of the results of that exam, and (c) minimizes the harm to the client’s 5th and 6th Amendment rights. The Benefits of Using the Suggested Approach
• •
The psycho-social history will provide the trial team with a great deal of information that can be used not only during the penalty phase of a trial, but also during the guilt/innocence phase. This information will be used as mitigating evidence and can help to humanize the client.
•
The relationship with the client and client’s family will benefit.
•
The “alpha personality” can be identified.
•
The persuasive theories and themes can be more readily identified and 29
supported with the relevant facts that have been developed during the investigation.
•
•
Lay witnesses can be identified. These witnesses can provide testimony concerning the client’s life and they are often better received by juries than experts.
•
Scarce funding is not wasted because the psycho-social history will generally reveal those issues that will be relevant, those that are not and those that would be harmful to the client. The funding will be spent to develop only those areas that are helpful. The consultant and testifying experts should use no more funds than would one expert doing the job of both.
•
The trial team can avoid the damage that may result from a wide-ranging examination by a state-sponsored expert. This examination should be limited to the scope of any examination performed by the defense testifying expert.
•
The lawyer/agent relationship between the trial team and the consulting expert is preserved and the confidentiality of work product is maintained.
•
The testifying expert can then focus on the most persuasive theories and the data that is supportive. This expert can take the results of all relevant information gathered during the investigation, tie it all together and explain its significance to the jurors so that they can understand why the client did what he did. The “So What” question is answered.
•
Damage that results from the court’s “limited waiver” of the client’s 5th Amendment right is limited and the applicable 6th Amendment rights are preserved.
Minimizing the “Lagrone Problem” • • •
Make sure your hearing is done ex parte carefully word the Ake motion so that counsel does not signal an “intent to put on...expert testimony”, just find out what is there Court’s order should include language that provides for: •
Defense to be notified as to time and place of state-sponsored exam;
•
Defense should be in the room during the exam [case law says there is no such right, but based on the 30
“limited waiver” of the 5th, there is no “limited waiver” of the 6th. They are, after all, trying to kill your client with an examination/opinion that is scientifically unreliable if the shrink will say that your client is a future danger to society. •
Counsel is at least allowed to be available for consultation.
•
Better yet, the defense’s expert should be allowed to be present.
•
The report goes to the judge for in camera inspection.
•
If there is Brady material it is released to the defense only (the limited waiver gets them the exam only).
Χ
The report is sealed until the defense calls its witness and it is then given to the State AND to the defense
Χ
No communication between the state and its expert about the exam or any conclusions that were drawn from the exam
Χ
Both experts can be in the room while the other testifies;
Χ
defense expert can be called to rebut State’s witness
Χ
Can’t disclose to jury client’s failure to appear for exam.
Χ
Any testimony by the State expert is to be limited to the issuesraised by the Defense expert. Soria, 933 S.W. 2d at 58-59.
Χ
Consider testimony without exam of client utilizing Rule 703
Χ
Contact TDS (512) 320-8300 for complete memo on LaGrone and materials to cross exam the state doc on future dangerousness..
PRE-TRIAL MOTION PRACTICE General •
Check TDS and TCDLA Motion Bank
•
Tailor the motion to the facts of the case–don’t just copy.
•
First move for enlargement of time to file motions to avoid limits of Art. 27.11 (10 days after indictment )and 28.01 (pre-trial hearing). 28.01 should not limit constitutional 31
guarantees. Henry v. Mississippi, 379 U.S. 443 (1965). •
Anticipate that most motions will be denied , but litigate the issue and make a record by calling witnesses and supplementing the record with articles, polls, affidavits, etc.- use the motions to educate the judge and perhaps the community, media..
•
Accompany each motion with an order granting the motion that the court can just sign. If the court won’t rule, object to its failure to rule to preserve the issue
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You are limited only by ethical considerations and lack of creativity
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Challenge the constitutionality of d/p scheme on as many grounds as you can think. Don’t be concerned that the point has been overruled before - yesterday’s loser may be tomorrow’s winner
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Federalize each motion by citing federal constitution, add relevant sections of Texas Constitution Article 1, applicable statutes, cases, rules and argue each separately.
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Use the motion/hearing worksheet (attached) for those that will require a hearing.
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At hearings, ask the judge for regular breaks so that you can advise the client and make sure that he knows what is going on. If he doesn’t understand, raise competency.
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Offer evidence/testimony to build a record–SHOW HOW DENIAL HARMS YOUR CLIENT AND MAKES YOU INEFFECTIVE
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At each relevant time during the trial, remind the judge of your request, tell her why your client is being harmed, perhaps in a new and unforseen way. Renew motions/objections–does not need to be before jury, T.R.E. 103(a)(1). Give the judge every opportunity to undo her mistake. Pre-Trial Motions (partial list)
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Access TCDLA Motion Bank or get disks from TDS
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Motions of current interest: •
Challenge to the grand and pettit jury based on under representation
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10-12 Challenge and Requested Instruction
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8.04 Intoxication Redefinition
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Allocution–consider having client testify if allocution not granted 32
•
Bush v.Gore (call Philip at TDCLA for recent developments)
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Dabuert/Kelley/Nenno on all expert opinions
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Challenge to an elected judge presiding over trial
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Funding-final (for mitigation specialist)
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Immunity for defense witnesses
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Testimony re: impact on defendant’s family
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Disclose any basis for recusal
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Disqualification of DA
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Limine on inconsistent theories of prosecution
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Continuance
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Close argument at penalty phase
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no sympathy
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Preclude testimony re: violence potential
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Prejudicial photos
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Proper decorum in trial
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Challenge to grand and petit juries
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Quash indictment–police officer
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Reservation of Rights
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Preservation of evidence and crime scene
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Issues raises in Quinones (N.Y) and Fell (Vt.) •
fails to avoid death sentences for the innocent
• •
sentencing scheme is incomprehensible to the jury 33
•
•
•
•
fails to adequately narrow the class that is eligible
•
relaxed evidentiary standards
• •
fails to allege a capital (death eligible crime)
•
consideration of non-statutory aggravators = arbitrary & capricious
•
use of post-crime aggravating circumstances = ex post facto
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use of non-statutory aggravators w/o proportionality review = unconst.
•
violates International Law
numerous challenges to constitutionality of Art. 37.071 • standardless sentencing power in the “uninstructed jury” violates 8th Amendment. Godfrey v. Georgia, 446 U.S. 420, 429 (1980) [failure to define terms]. See TDD/TCDLP Motions Disk.
JONES, APPRENDI, RING AND BLAKELY •
Jones v. U.S. 526 U.S. 227 (1999), Apprendi v. New Jersey, 530 U.S. 466 (2000) Ring v. Arizona, 122 S. Ct. 2428 (2002). The Texas Court of Criminal Appeals has dodged this issue by saying that Ring does not apply to the Texas Death Penalty Scheme. However, this and other issues should continue to be raised and preserved. One of these days the U.S. Supreme Court may get tired of the lack of adequate appellate review provided by the CCA. The SCOTUS has apparently undercut the CCA with its definition of “maximum sentence” as being the maximum sentence that a judge could impose absent the findings of fact. Blakely v. Washington, 124 S.Ct. 2531 (2004).
•
NOTE: Grand jury clause of 5th Amendment IS NOT applicable to states through the 14th Amendment. Allege right to indictment under Art. 1.05 and Article 1, Section 10 and right to notice under 6th and the 14th Amendment.
•
It is a violation of due process to convict on a charge never made Cole v. Arkansas, 333 U.S. 196 (1948). [Issues are elements and are not “charged”]
•
8th Amendment violations not subject to “harmless error” analysis. Furman v. Georgia, 408 U.S. 238 (1972), Woodson v. North Carolina, 428 U.S. 280, 302 (1976).
Future Dangerousness Issue 34
•
• •
•
•
(a) Future danger is an element (Apprendi);
•
(b) not alleged in indictment (Jones)
•
(c) applicable to capital cases (Ring)
•
(d) violates 5th, 6th, 8th and 14th (U.S.) and Article 1, Section 10 (Texas)
Mitigation Issue •
(a) considered by jury to elevate punishment
•
(b) absence not alleged in indictment (Jones)
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(c) absence is an element (Apprendi)
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(d) jury must decide “fact” beyond reasonable doubt (Ring)
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(e) burden must therefore be on the state to prove BRD (best issue)
Unadjudicated Offenses (treat as non-statutory aggravators) •
death;
(a) considered by jury when deciding to elevate punishment from life to
•
(b) each is an element of the capital offense (Apprendi);
•
(c) defense receives no notice by indictment, statute or case law (Ring)
• • • • •
(d) state not even required to prove each of the elements of the unadjudicated offense (now an element) (Apprendi) Ring)
(e) no instruction submitted on each unadjudicated offense (Apprendi and
(f) relaxed standards under United States v. Fell (Vt.)-no notice, no elements, no issue, no instruction. Their use violates International Law. Both Fell and Quinones were U.S. District Court opinions and have been reversed. However, the issues raised can be useful. 35
•
Juvenile Transfer Proceedings •
Should not a jury be deciding the important transfer facts?
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These facts are used to raise maximum juvenile punishment to adult punishment
!
APPLICATION TO JURY UNANIMITY AND LAW OF PARTIES
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Jury unanimity not required by 5th, 6th or 14th Amendments;
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Required by Article V, Section 13 of Texas Constitution & Art. 36.29 TCCP;
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Elements of offense defined by § 1.07(a)(22) of TPC as (1) the forbidden conduct; (2) the required culpability; (3) any required result, (4) negation of any exception to offense.
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Three different ways to invoke party liability under Penal Code 7.02(a) + 7.02(b) conspiracy/felony
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individual liability is not same as party liability under 7.02(a)(2) or 7.02(b) and they are different from each other. Bockberger v. U.S. 284 U.S. 299 (1932).
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individual liability indictment does not allege all elements of offense in violation of Art. 1, §10 & Art. V, § 10 and CCP 1.141.
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indictment is “amended” by jury instruction that alleges parties in violation of Art. 28.10 TCCP;
•
Does application paragraph of instructions give jury choice of 7.02 language? Violation of Art. V, § 13 and “..it must be concurred in by each juror...” language of Art. 36.29. Verdict in violation of cited law and Apprendi, Ring and In Re Winship that requires all elements to be alleged in the indictment and found beyond a reasonable doubt.
• •
Appellate court cannot uphold conviction on a charge that was never made. Dunn v. United States, 442 U.S. 100 (1979);
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Current case law allows state to get away with failure to properly indict. Pitts v. State, 569 S.W. 2d 898 (Tex.Crim.App. 1978) and Schad v. Arizona, 501 U.S. 624 (1991), BUT Schad not properly relied on as AZ statute does not require “manner & means”. See dissenting opinion in Planter v. State, 9 S.W.3d 156, 162 (Tex.Crim.App. 1999).
•
CHALLENGE: (1) motion to quash b/c party liability not alleged in party situation 36
(5th/14th); (2) motion to preclude state from v.d. on party liability; (3) object when state does it; (4) preserve objection prior to your v.d.–“but for court’s erroneous ruling...” & renew with each venireperson; (5) Motion for DV on indicted offense & “..but for court’s erroneous ruling we would not put on a defense to indictment.” & reurge MDV at every opportunity; (6) move for election of offenses; (7) object to instruction; (8) tender verdict form that requires jury to unanimously agree on defendant’s unlawful conduct. •
THEMES FROM ATKINS “..evolving Standards of Decency that mark the progress of a maturing society...” Trop v. Dulles, 356 U.S. 86 (1958) Punishment graduated and proportioned to the offense--8th Amendment.
• •
Excessiveness of punishment is judged by prevailing standards of decency.
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Proportionality review- “parties” statute? Penal Code 7.02
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Proportionality review should be informed by objective factors
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groups
Other states; (b) nations; (c) interested social, religious & professional
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Does punishment meet the goals of retribution and deterrence?
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Retribution hinges on culpability; (b) deterrence hinges on cognitive ability; (c) cognitive ability influences conduct control
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Diminished capacities to (a) understand and process information, (b) communicate, (c) abstract from mistakes, (d) learn from experience, (e) reason logically, (f) control impulses; (g) understand other’s reactions = diminished personal culpability.
• • • •
Risk of wrongful execution (a) coerced confessions; (b) inability to aid counsel; (c) inability to testify accurately (d) unsympathetic demeanor/remorse is less.
Accused with MR may know right from wrong/ competent, but culpability Negate stereotypes about the client with MR– (a) are not competent to 37
stand trial; (b) cannot premeditate violent acts; can’t tell right from wrong. • •
Execution of Juveniles -- See Roper v. Simmons, 543 U.S. ____ 2005 •
Extend Simmons to those in their early to mid 20’s-mylination
•
Extend Roper and Atkins to the mentally ill.
• CLINICAL PREDICTIONS OF FUTURE DANGEROUSNESS •
No scientific reliability for long-term clinical predictions in prison setting
• •
Daubert/Kelly/Kumho Tire/Nenno applies to “soft science”–different test Use motion for discovery to “smoke-out” lack of evidence to support reliability
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If motion not granted, use subpoena to demand production
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Open ended questions for 702/705 hearing
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Move to preclude testimony as unreliable
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Closed cross-exam during trial
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Use “not even dangerous in near term” when available plus good person evidence
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Use TDCJ stats to show that prison system is safe and secure
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Use cross of state’s classification witness who says that TDCJ is not safe
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NOTE: TDS has developed sample motions, forms and crossexaminations that are free to criminal defense lawyers who are defending capital crimes.
38
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Digital Investigations in Criminal Cases
Speaker:
Eric Devlin
CEO of The Lone Star Forensic Group Attorney Tech Service 14027 Memorial Dr # 391 Houston, TX 77079 888.632.6271 phone edevlin@lfg-texas.com email www.lonestarforensicgroup.com website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
A Gunfight with an Empty Holster Digital Investigations in Criminal Cases Old Western movies are the best. Inevitably there will be a gunfight at high noon where the hero and the villain meet in the middle of the town square. There will be ominous music and many cinematic views as the participants eye each other warily and the townspeople flee. As the clock, in slow motion, crosses to the number twelve on the town clock, each of the gunfighters, with their hands near their waist, continues to glare at each other. As the speed returns to normal, both gunfighters move, and their hands blur toward their sunbelt. As Western movies go, the hero manages to pull his six-shooter slightly faster and shoots the villain, who dramatically falls to the dusty street. Now imagine that instead of finding their trusty pistol when their hands went into motion, one of the gunfighters found their holster empty. Everyone would be up in arms; in our Western Fantasy, the other side would likely stop the duel since it's unsportsmanlike. The movie fans would be up in arms at the unfairness. There would be riots in the streets and congressional hearings into the terrible unjustness and violation of the sense of fair play. However, this type of daydreaming is not reality; it is a reality that no one will stand up and protest. For the defense counsel of a criminal case, a lawyer for the accused will often be handed a large amount of what we call ‘Discovery”. This material should be all of what the state and its agents gathered that both tend to prove the accusation and information that could be useful in the defense. Some lawyers take what is given to them and put on blinders to the rest, but most of you take what is shown in “Discovery”
with a grain of salt. It is this suspicion that genuinely serves your client and their needs. The location of type of information that your client may need in their defense can be in a variety of places. Some might be on your client’s electronic devices or on the electronic devices belonging to friendly witnesses who would be willing to consent to have it examined by a digital forensic examiner. Other sources might be on devices in law enforcement's hands, and a court order may be necessary to access such information. This court order brings a danger with it in that if the prosecutors show no interest in having a device examined, a court order for your expert to do so will often spark that prosecutor into sending their agents to repeat the process. Even when the attorney had obtained this court order under seal, the moment I provided it to the law enforcement agency to receive access, the property room clerk would be on the phone with the prosecutors. However, the question we turn to is looking at other forms of evidence than that sitting in police property rooms. Service providers worldwide often hold essential data on their servers. These providers include cell phone service providers such as Verizon, AT&T, and T-Mobile, who possess call detail records that can help determine a device's location during a communication event. These records can also give these calls or messaging destinations or an originating number and the length of these conversations. Other valuable sources of information from these companies are the subscriber and payment records. Apple is another incredible source of information on electronic records. These include the user’s photo library, stored cloud documents, and connected devices. One item that many overlook is the potential to
retrieve cloud backups of the attached electronic devices. These backups are less comprehensive than a forensic exam of the actual device, but in many cases, the alternative is not to have any information. Major Applications such as Snapchat, Instagram, TikTok, Tinder, Waze, and Facebook store data both on the devices in which they are installed and on their servers. Snapchat can provide subscriber information, money transfers, contacts, direct messaging (different from Snaps), and a little-known vault feature called “My Eyes Only.” Instagram has a record of subscriber information, posted images, liked images, contacts, followers, and direct messages. With this vast wealth of potential information to help and hurt your client, the question always arises: "How Do I Get it?”. This question is usually followed up with, “How Do I Get it, without the prosecutor knowing that I am getting it?” The answer to the question is the focus of this paper and the crux of the defender’s problem. The answer for prosecutors is easy. They get their law enforcement officer to come down and swear out a warrant that contains sufficient probable cause, to which, after meticulous review, the judge affixes their signature. The warrant is then emailed/faxed/mailed/hand delivered by that law enforcement officer to the target, and the return is shipped back via email or hard copy. The answer is more challenging for the defense bar and civil attorneys. This is because unless you are asking for simple subscriber records or connection data (which is obtainable by a simple subpoena), they lack the authority to swear out a search warrant. To focus on this, let's look at the language that authorizes a search warrant under Texas law.
Art. 18.01. SEARCH WARRANT. (a) A "search warrant" is a written order, issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate or commanding him to search for and photograph a child and to deliver to the magistrate any of the film exposed pursuant to the order. (b) No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested. Except as otherwise provided by this code, the affidavit becomes public information when the search warrant for which the affidavit was presented is executed, and the magistrate's clerk shall make a copy of the affidavit available for public inspection in the clerk's office during normal business hours. (b-1)(1) For purposes of this article, a magistrate may consider information communicated by telephone or other reliable electronic means in determining whether to issue a search warrant. The magistrate may examine an applicant for a search warrant and any person on whose testimony the application is based. The applicant or other person must be placed under oath before the examination. (2) If an applicant for a search warrant attests to the contents of an affidavit submitted by reliable electronic means, the magistrate must acknowledge the attestation in writing on the
affidavit. If the magistrate considers additional testimony or exhibits, the magistrate must: (A) ensure that the testimony is recorded verbatim by an electronic recording device, by a court reporter, or in writing; (B) ensure that any recording or reporter's notes are transcribed and that the transcription is certified as accurate and is preserved; (C) sign, certify the accuracy of, and preserve any other written record; and (D) ensure that the exhibits are preserved. (3) An applicant for a search warrant who submits information as authorized by this subsection must prepare a proposed duplicate original of the warrant and must read or otherwise transmit its contents verbatim to the magistrate. A magistrate must enter into an original search warrant the contents of a proposed duplicate original that are read to the magistrate. If the applicant transmits the contents by reliable electronic means, the transmission received by the magistrate may serve as the original search warrant. (4) The magistrate may modify a search warrant that is submitted as described by Subdivision (3). If the magistrate modifies the warrant, the magistrate must: (A) transmit the modified version to the applicant by reliable electronic means; or (B) file the modified original and direct the applicant to modify the proposed duplicate original accordingly.
(5) A magistrate who issues a search warrant for which information is provided by telephone or reliable electronic means must: (A) sign the original documents; (B) enter the date and time of issuance on the warrant; and (C) transmit the warrant by reliable electronic means to the applicant or direct the applicant to sign the judge's name and enter the date and time on the duplicate original. (6) Evidence obtained pursuant to a search warrant for which information was provided in accordance with this subsection is not subject to suppression on the ground that issuing the warrant in compliance with this subsection was unreasonable under the circumstances, absent a finding of bad faith. (c) A search warrant may not be issued under Article 18.02(a)(10) unless the sworn affidavit required by Subsection (b) sets forth sufficient facts to establish probable cause: (1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched. Except as provided by Subsections (d), (i), and (j), only a judge of a municipal court of record or a county court who is an attorney licensed by the State of Texas, a statutory county court judge, a district court judge, a judge of the Court of Criminal Appeals, including the presiding judge,
a justice of the Supreme Court of Texas, including the chief justice, or a magistrate with jurisdiction over criminal cases serving a district court may issue warrants under Article 18.02(a)(10). (d) Only the specifically described property or items set forth in a search warrant issued under Article 18.02(a)(10) or property, items or contraband enumerated in Article 18.02(a)(1), (2), (3), (4), (5), (6), (7), (8), (9), or (12) may be seized. A subsequent search warrant may be issued pursuant to Article 18.02(a)(10) to search the same person, place, or thing subjected to a prior search under Article 18.02(a)(10) only if the subsequent search warrant is issued by a judge of a district court, a court of appeals, the court of criminal appeals, or the supreme court. (e) A search warrant may not be issued under Article 18.02(a)(10) to search for and seize property or items that are not described in Article 18.02(a)(1), (2), (3), (4), (5), (6), (7), (8), or (9) and that are located in an office of a newspaper, news magazine, television station, or radio station, and in no event may property or items not described in Article 18.02(a)(1), (2), (3), (4), (5), (6), (7), (8), or (9) be legally seized in any search pursuant to a search warrant of an office of a newspaper, news magazine, television station, or radio station. (f) A search warrant may not be issued pursuant to Article 18.021 of this code unless the sworn affidavit required by Subsection (b) of this article sets forth sufficient facts to establish probable cause: (1) that a specific offense has been committed; (2) that a specifically described person has been a victim of the offense;
(3) that evidence of the offense or evidence that a particular person committed the offense can be detected by photographic means; and (4) that the person to be searched for and photographed is located at the particular place to be searched. (g) A search warrant may not be issued under Article 18.02(a)(12) unless the sworn affidavit required by Subsection (b) of this article sets forth sufficient facts to establish probable cause that a specific felony offense has been committed and that the specifically described property or items that are to be searched for or seized constitute contraband as defined in Article 59.01 of this code and are located at or on the particular person, place, or thing to be searched. (h) Except as provided by Subsection (i) of this article, a warrant under Article 18.02(a)(12) may only be issued by: (1) a judge of a municipal court of record who is an attorney licensed by the state; (2) a judge of a county court who is an attorney licensed by the state; or (3) a judge of a statutory county court, district court, the court of criminal appeals, or the supreme court. (i) In a county that does not have a municipal court of record with a courtroom located in that county and a judge who is an attorney licensed by the state, a county court judge who is an attorney licensed by the state, or a statutory county court judge, any magistrate may issue a search warrant under Article 18.02(a)(10) or (12). This subsection is not applicable to a subsequent search warrant under Article 18.02(a)(10).
(j) Any magistrate who is an attorney licensed by this state may issue a search warrant under Article 18.02(a)(10) to collect a blood specimen from a person who: (1) is arrested for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code; and (2) refuses to submit to a breath or blood alcohol test. The code of criminal procedure goes further in Article 18.02 in defining the grounds for which a search warrant can be issued. Art. 18.02. GROUNDS FOR ISSUANCE. (a) A search warrant may be issued to search for and seize: (1) property acquired by theft or in any other manner which makes its acquisition a penal offense; (2) property specially designed, made, or adapted for or commonly used in the commission of an offense; (3) arms and munitions kept or prepared for the purposes of insurrection or riot; (4) weapons prohibited by the Penal Code; (5) gambling devices or equipment, altered gambling equipment, or gambling paraphernalia; (6) obscene materials kept or prepared for commercial distribution or exhibition, subject to the additional rules set forth by law; (7) a drug, controlled substance, immediate precursor, chemical precursor, or other controlled substance property, including
an apparatus or paraphernalia kept, prepared, or manufactured in violation of the laws of this state; (8) any property the possession of which is prohibited by law; (9) implements or instruments used in the commission of a crime; (10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense; (11) persons; (12) contraband subject to forfeiture under Chapter 59 of this code; (13) electronic customer data held in electronic storage, including the contents of and records and other information related to a wire communication or electronic communication held in electronic storage; or (14) a cellular telephone or other wireless communications device, subject to Article 18.0215. (b) For purposes of Subsection (a)(13): (1) "Electronic communication" and "wire communication" have the meanings assigned by Article 18A.001. (2) "Electronic customer data" and "electronic storage" have the meanings assigned by Article 18B.001.
In this discussion, we will focus on Items 9, 13, 14. The code even gives precise instructions for when law enforcement requests a warrant to search a cell phone in Article 18.0215. Art. 18.0215. ACCESS TO CELLULAR TELEPHONE OR OTHER WIRELESS COMMUNICATIONS DEVICE. (a) A peace officer may not search a person's cellular telephone or other wireless communications device, pursuant to a lawful arrest of the person without obtaining a warrant under this article. (b) A warrant under this article may be issued only by a judge in the same judicial district as the site of: (1) the law enforcement agency that employs the peace officer, if the cellular telephone or other wireless communications device is in the officer's possession; or (2) the likely location of the telephone or device. (c) A judge may issue a warrant under this article only on the application of a peace officer. An application must be written and signed and sworn to or affirmed before the judge. The application must: (1) state the name, department, agency, and address of the applicant; (2) identify the cellular telephone or other wireless communications device to be searched; (3) state the name of the owner or possessor of the telephone or device to be searched; (4) state the judicial district in which:
(A) the law enforcement agency that employs the peace officer is located, if the telephone or device is in the officer's possession; or (B) the telephone or device is likely to be located; and (5) state the facts and circumstances that provide the applicant with probable cause to believe that: (A) criminal activity has been, is, or will be committed; and (B) searching the telephone or device is likely to produce evidence in the investigation of the criminal activity described in Paragraph (A). (d) Notwithstanding any other law, a peace officer may search a cellular telephone or other wireless communications device without a warrant if: (1) the owner or possessor of the telephone or device consents to the search; (2) the telephone or device is reported stolen by the owner or possessor; or (3) the officer reasonably believes that: (A) the telephone or device is in the possession of a fugitive from justice for whom an arrest warrant has been issued for committing a felony offense; or (B) there exists an immediate life-threatening situation, as defined by Article 18A.201. (e) A peace officer must apply for a warrant to search a cellular telephone or other wireless communications device as soon
as practicable after a search is conducted under Subsection (d)(3)(A) or (B). If the judge finds that the applicable situation under Subsection (d)(3)(A) or (B) did not occur and declines to issue the warrant, any evidence obtained is not admissible in a criminal action. While this language is important, and there are many kernels of valuable language, let us discuss a few critical points for this discussion. “A "search warrant" is a written order issued by a magistrate and directed to a peace officer, which requires the state or an agent of the state to apply for and execute the search warrant. There is no provision for an officer of the court or a licensed investigator working for that officer of the court to apply for and serve the search warrant. To obtain these records, you have a few options. First, you can secure a court order under seal, in which you provide sufficient information to establish probable cause, swear to the filing, and have the judge sign that court order and send that order to the service provider in the method that they request, such service, file it on their registered agent here in Texas, or domesticate that order in the state that the provider resides in. The problem with this method is that it's not an actual search warrant, and some providers will not accept such an order. One way to limit this type of response is to make the order look like a search warrant. I know this is a terrible way of doing business (making your order look like a search warrant). Still, the practical situation is that the employees at these service providers assigned to legal compliance are usually not attorneys. They are also generally different from the up-and-comers of the company. Legal Compliance is not a revenue-generating area. This is a drain on the company that differs from its primary purpose. Turnover is
usually high, and when economic conditions require cost-cutting, this is often one of the first areas management turns to. Since these are usually not lawyers or any real legal training, they are generally taught to look for specific language and appearance. If it looks like a duck, walks like a duck, smells like a duck….it must be a search warrant. Attorneys I have worked with have successfully obtained Call Detail Records and electronic communications using a motion that looks almost like the search warrants used by law enforcement. Since I wrote many of the warrants that law enforcement uses to obtain these records, making a motion that mimics the appearance helps to comply with these orders. Your other option is to ask the prosecutors to secure such information for you. The problems with this request begin with the fact that to obtain what you need by this method, you have to reveal the direction your investigation is going in. Sidestepping that first concern, the second problem that I have been seeing is that your request does not have to be complied with. While it is my fervent hope that prosecutors, in their sworn duty to see that “Justice is Done” instead of notches on the gunbelt, would look at any request for records that may have an impact on a pending case, whether it helps or hurts the case, as essential to obtain. That hope, however, seems to vary between prosecutors. I have watched numerous prosecutors refuse requests for such records as unnecessary to their theory of the case. I have even seen a prosecutor tell a lawyer and a judge when the request is made, that they would not obtain these records because they might harm her theory of the case. That is not to say that the prosecutors must comply with the requests to obtain warrants for information they do not want. I recently participated in a hearing where counsel requested a judge to order
prosecutors to obtain warrants to retrieve social media information. It was information that I believed was important to find out what happened in the alleged criminal offense and records that the investigators and prosecutors should have obtained during a thorough investigation. Still, I also agreed with the Judge when she ruled that she lacked the authority to order such actions. I was very disappointed that the prosecutors have refused to obtain the records requested. So with all of this discussion, what is needed? In this world of constant electronic communications and corporate surveillance, the power to obtain this information must be in the hands of more than just the State. If our criminal justice system is to work, defense attorneys must be able to conduct their investigation in private and have the power to obtain the necessary records. There is a need for legislation to allow defense counsel to get these records from the various service providers throughout the United States (and even internationally, but that is a topic for a different paper). The current method of using a simple court order with the judge making a finding of probable cause based upon the counsel’s proffer is a method that is not firmly rooted in the statutes but more from tradition and case law. Also, understanding the practical process of obtaining these records, we can only call it a Search Warrant. Suppose you create a new category or name. In that case, I envision significant problems in getting compliance from the poorly trained, even more poorly paid, and significantly overworked clerk buried in a cubical in the land of the fruits, nuts, and flakes (California, in case you didn’t get that reference). I understand that this type of search warrant will need to have significant
restrictions on it. I don't expect to see a group of TDCLA lawyers in body armor lining up in a stack to kick someone's door in and execute a search warrant; a provision can be written to correctly empower defense counsel to seek such records under the guidance of the court. Defense Attorneys are one part of the important collection that makes our criminal justice system work. They need the power to obtain the records necessary to defend their clients and provide the court/jury with the whole picture. Suppose the prosecutor has the right to refuse a request for action (which I believe they do, even if they usually shouldn’t). In that case, an avenue grounded in the code must allow this information to be obtained. Otherwise, this chips away at the foundation of our system.
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Collateral Consequences & Crimmigration
Speaker:
Cori Hash
Lincoln Goldfinch Law 1005 E 40th St Austin, TX 78751 855.502.0555 phone 512.323.9351 fax cori@lincolngoldfinch.com email https://www.lincolngoldfinch.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
“An American Tail:" Collateral Consequences & Crimmigration By Cori Hash Why Should Criminal Defense Counsel Care About Client’s Immigration Status? As busy criminal defense attorneys, adding yet another task to your schedule may seem overwhelming. You may also wonder whether you, as someone whose practice focuses on criminal law, can properly advise clients about the collateral consequences of a criminal offense. These are all fair questions to ask. However, as criminal defense counsel you are in the best position to know when a client may need advice about possible collateral consequences and where a client can seek such advice. For non-citizen defendants, the consequences of a conviction can be severe. Non-citizens with criminal convictions can face consequences ranging from visa denials to mandatory detention to exile from the U.S. Due to the severity of the immigration consequences, the U.S. Supreme Court has imposed a duty upon criminal defense attorneys to advise noncitizen defendants of the potential immigration consequences of a guilty plea. Padilla v. Commonwealth of Ky., 559 U.S. 356 (2010). What is Criminal Defense Counsel’s Duty to Non-Citizen Clients? The Texas Court of Criminal Appeals has held that criminal defense counsel have an affirmative duty to inform clients about the possible immigration consequences of a guilty plea. Ex Parte Torres, 483 S.W.3d 35 (Tex. Crim. App. 2016). The court found that advising non-citizen clients of the “mere possibility” of deportation is insufficient to meet that duty. Id. at 46. When deportation is a clear consequence of a guilty plea, counsel's advice must also be clear: “counsel [is] obligated to inform appellant of the ‘presumptively mandatory’ immigration-law consequences of his plea that would make him ‘subject to automatic deportation.’ ” Id. at 45 (quoting Padilla, 559 U.S. at 369). The Texas Court of Criminal Appeals has recognized that “criminal law attorneys are generally not knowledgeable of specialized immigration law and may not understand the effect of a criminal conviction on a noncitizen.” Ex parte Aguilar, 537 S.W.3d 122, 127 (Tex. Crim. App. 2017). However, merely advising a client to “consult an immigration attorney,” is not enough. Ex Parte Torres at 45. Instead, when the immigration consequences of a plea are not clear, it is expected that defense counsel will “rely on their immigration-law counterparts when representing noncitizens.” Ex parte Aguilar at 128. In a nutshell, defense counsel should take the following steps to ensure they are complying with the requirements of Padilla:
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(1) Confirm the immigration or citizenship status and criminal history of the client, (2) Understand the client’s goals regarding outcome (ie - is avoiding deportation the priority?), (3) Advise the client regarding any “clear” consequences of a guilty plea, (4) Advise the client to obtain immigration counsel when the consequences of the guilty plea are not clear, and (5) Ensure that the client understands the immigration consequences of the decision to enter a guilty plea or to go to trial. How Can Criminal History Affect Non-Citizens? Any non-citizen seeking to enter or remain in the United States must prove that they are eligible for the particular status they are seeking and that they are not subject to any grounds of inadmissibility or deportability. These grounds of inadmissibility and deportability may bar otherwise eligible individuals from entering into or remaining in the U.S. While the specific grounds have varied over time, certain crimes or criminal histories have long been included. However, in 1996 Congress passed a series of laws making deportation mandatory for certain criminal offenses and otherwise creating a complex set of criminalimmigration bars. Deportation is the most severe consequence for a non-citizen as it may result in a lifetime banishment from the U.S. However, under current immigration laws, non-citizens may face the following consequences as a result of an arrest or conviction for a criminal offense: ● ● ● ● ● ● ●
Mandatory immigration detention, Loss of permanent resident status, Revocation of temporary visa or status, Denial of naturalization, Denial of permanent resident status, Bar to seeking other lawful status in the U.S. (ie - asylum, work or student visa, DACA), Inability to return to the U.S. in the future (temporary or permanent).
When is a Non-Citizen’s Criminal History Reviewed? There are various points in the immigration process when a non-citizen’s criminal history will be reviewed by an immigration agency. Oftentimes, non-citizens in local, state, or federal custody will be encountered by Immigration & Customs Enforcement (ICE) who will review the detainee’s immigration status and criminal history. Non-citizens without lawful immigration
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status or whose prior or current criminal charges may subject them to deportation will be taken into custody by ICE upon release and likely detained pending deportation proceedings. However, release from local, state, or federal custody is not the only event that will trigger a review of a non-citizen’s criminal history. Each and every time a non-citizen applies for a work permit, visa, temporary status (such as Temporary Protected Status or DACA), permanent residence or other status, or naturalization a background check is completed and their criminal history is reviewed. This includes applications to extend or renew any visa or status. Non-citizens who are entering the U.S. may also be subjected to a review of their criminal history by Customs & Border Protection (CBP) agents. This applies not just to those entering the U.S. for the first time. Many long-term residents may find themselves facing deportation for an old conviction upon return to the U.S. after a trip abroad. What Crimes Affect Non-Citizens? Unfortunately, there is no list of crimes that would trigger immigration consequences for a noncitizen defendant. Nor is there any bright line rule between felonies and misdemeanors. To the contrary, both misdemeanors and felonies may trigger immigration consequences. Instead, current immigration law categorizes crimes based on the nature of the crime and the actual or possible sentence imposed. While it is not an exhaustive list, the majority of the criminal bars are found in two sections of the Immigration & Nationality Act - sections 212(a)(2) and 237(a)(2). 8 USC § 1282(a)(2); 8 USC § 1227(a)(2). While not an exhaustive list, some of the most common criminal bars include the following categories of crimes: 1. Aggravated Felonies An “aggravated felony” is a term of art used to describe a category of offenses that will render a non-citizen subject to deportation and other harsh consequences. INA § 237(a)(2)(A)(iii); 8 USC § 1282(a)(2)(A)(iii). An “aggravated felony” may include both misdemeanor or felony offenses. The list of “aggravated felonies” includes the following offenses: ● Murder, Rape, Sexual abuse of a minor ● Firearms trafficking ● Money laundering ● Arson ● Certain firearms offense ● Crimes of violence
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● Certain theft or burglary offenses ransom offenses ● Certain offenses related to prostitution, human trafficking and slavery INA § 101(a)(43); 8 USC § 1101(a)(43). 2. Crimes Involving Moral Turpitude There is no set definition for what constitutes a crime involving moral turpitude (CIMT). This category includes conduct which is considered "inherently base, vile or depraved, contrary to the accepted roles of morality and the duties owed between men and men, either one's fellowman or society in general.” Matter of Silva-Trevino, 26 I&N Dec. 826, 833 (BIA 2016). A CIMT requires both reprehensible conduct and a culpable mental state. Id. at 834. Common examples of offenses found to be CIMTs include certain theft, forgery, or fraud offenses, as well as certain crimes against a person (ie - aggravated assault). A CIMT may result in denial or loss of status and possibly deportation depending on the noncitizen’s status and prior criminal history. A conviction for a single CIMT which has a maximum possible sentence of less than a year and results in a sentence of six months or less qualifies as a “petty offense” and will not trigger the CIMT-related criminal bars. 3. Controlled Substance Offenses Controlled substance offenses ranging from possession to trafficking can render a non-citizen ineligible for most statuses and lead to possible deportation. The controlled substance must be one that is identified on federal drug schedules. 21 U.S.C. § 802. The one exception that exists relates to simple possession of marijuana. Non-citizens convicted of a single offense relating to possession of 30 grams or less of marijuana may avoid deportation or be eligible for a waiver of the criminal bar. While most controlled substance related criminal bars require a conviction, not all do. Noncitizens applying for a visa, other temporary status, or permanent residence may be ineligible if they admit to a controlled substance offense or there is “reason to believe” that they have participated in drug trafficking. 4. Crimes Demonstrating a Lack of Good Moral Character Certain non-citizens applying for citizenship, protection under the Violence Against Women Act, or Cancellation of Removal (a defense to deportation) are required to demonstrate “good moral character” for a certain period of time prior to application. Good moral character is defined as
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character which measures up to the standards of average citizens of the community in which the applicant resides. See, e.g. 8 C.F.R. § 316.10(a)(2). Certain offenses will preclude a finding of good moral character. INA § 101(f); 8 U.S.C. § 1101(f). These include several categories of crimes discussed above such as aggravated felonies, controlled substance offenses, and crimes involving moral turpitude. It also includes specific criminal conduct such as illegal gambling, prostitution, and alcohol-related offenses. A conviction for one Driving While Intoxicated offense may be enough for a finding of lack of good moral character. However, two or more DWI convictions establishes a rebuttable presumption that an applicant lacks good moral character. Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019). 5. Criminal Offenses Related to Specific Statuses In addition to the numerous criminal bars contained in the Immigration & Nationality Act that apply to any non-citizen, there are also criminal bars that apply to non-citizens seeking a particular type of status. a. Particularly Serious Crimes for Asylum Seekers Non-citizens fleeing persecution in their home country may be barred from seeking asylum and related protections if they have been convicted of a “particularly serious crime.” INA § 208(b)(2)(A)(ii); 8 U.S.C. § 1158(b)(2)(A)(ii). The term “particularly serious crime” is not defined in the statute, but has been determined to be a crime that indicates the non-citizen is “a danger to the community.” Matter of Carballe, 19 I&N Dec. 357, 360 (BIA 1986). Aggravated felonies are considered per se particularly serious crimes. All other crimes will be evaluated on a case-by-case basis with an analysis of the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and the mental health history of the asylum seeker. Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022). Examples of crimes that have been found to constitute a “particularly serious crime” include: burglary, assault (simple and aggravated), and domestic/family violence among others. b. Significant Misdemeanors for DACA Holders Similarly, non-citizens may be barred from applying for or renewing their Deferred Action for Childhood Arrivals status if they have been convicted of the following: (1) A felony, (2) A “significant misdemeanor,” or (3) Three non-significant misdemeanors.
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The term “significant misdemeanor” is defined as the following: (1) Any offense punishable by imprisonment of one year or less but more than five days and is an offense of: ● Driving while intoxicated ● Domestic violence, ● Sexual abuse or exploitation, ● Unlawful possession or use of a firearm, ● Drug sales (distribution or trafficking), ● Burglary (2) Any other misdemeanor for which the person received a jail sentence of more than 90 days (not including suspended sentences). What Other Factors Determine the Immigration Consequence of a Criminal Conviction? Whether or not a particular offense will result in immigration consequences is focused largely on the nature of the offense and the statutory elements. However, certain consequences will only be triggered if certain additional factors are present. These factors may include the possible sentence range for the offense, the term of imprisonment imposed, actual time served, and amount of loss to the victim. For example, a permanent resident may be subject to deportation upon conviction of a single crime involving moral turpitude if it is a crime for which a sentence of one year or longer may be imposed. A non-citizen’s prior criminal history may also be an important factor. Certain non-citizens may face immigration consequences only upon their conviction for more than one offense. DACA holders, for example, will lose their status if they have been convicted of three (3) non-significant misdemeanors. What Counts as a Conviction for Immigration Purposes? A conviction for immigration purposes is not the same as a conviction for other purposes. Under federal immigration law, a conviction exists where there has been a formal adjudication of guilt entered by a court or if adjudication has been deferred, where all of the following elements are present: (1) A judge or jury has found the alien guilty, or the person entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and (2) The judge has ordered some form of punishment, penalty or restraint on the person’s liberty to be imposed. INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A). One exception is for juvenile offenses. In general, a guilty verdict, ruling, or judgment in a juvenile court does not constitute a conviction for immigration purposes. See Matter of Devison,
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22 I&N Dec. 1362 (BIA 2000). However, a conviction for a person who is under 18 years of age and who was charged as an adult does constitute a conviction for immigration purposes. It is important to note that certain alternate plea agreements that require an admission or finding of guilt and some form of punishment may constitute a conviction for immigration purposes when they do not under Texas law. For example, a deferred adjudication is considered a conviction for immigration purposes. Matter of Punu, 22 I&N Dec. 224, 228 (BIA 1998). Other pre-trial programs may qualify as a conviction for immigration purposes if they meet both requirements of a conviction discussed above. For example, a Texas pretrial intervention program was found to be a conviction because it required an admission of facts comprising guilt along with a pretrial agreement filed with the court and included court imposed fees as well as community supervision. Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017). The Board of Immigration Appeals ultimately concluded that the pretrial intervention program met both requirements for a conviction under the statute. Id. However, not all pretrial programs are created equal. Pretrial diversion programs such as deferred prosecution do not qualify as convictions as long as they do not satisfy both prongs of the definition of conviction. INA § 101(a)(48)(A); 8 U.S.C. § 1101(a)(48)(A). It is also worth noting that post-conviction efforts to ameliorate the immigration consequences of a conviction may not be sufficient. Convictions that have been expunged or sealed under state court order still constitute convictions for immigration purposes. Matter of Roldan, 22 I&N Dec. 224 (BIA 1999). Attempts to modify, alter, or clarify a sentence post-conviction are also considered invalid unless they are based on a procedural or substantive defect in the underlying criminal proceeding. Matter of Thomas and Thompson, 27 I&N Dec. 674 (A.G. 2019). Likewise, a conviction vacated to avoid negative immigration consequences is still considered a conviction. Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir 2002). On the other hand, convictions vacated for substantive legal defects in the underlying criminal proceeding, including when a plea was not knowing and voluntary because it was made without adequate notice of all its potential immigration consequences, have largely been found to not be a conviction for immigration purposes. Matter of Marquez Conde, 27 I&N Dec. 251 (BIA 2018); but see Renteria-Gonzalez, 322 F.3d at 813.
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Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
The Forensic Files: From 9-1-1 Call to Crime Scene Reconstruction Speaker:
Anita Vida, M.S.F.S. AZ Forensic Associates, LLC P.O. Box 911 Buffalo, NY 716.913.8530 phone contact@az-forensics.com email www.az-forensics.com website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Criminal Defense Lawyers Association June 15-17, 2023 The Forensic Files: From 9-1-1 Call to Crime Scene Reconstruction Anita Vida, M.S.F.S. To save you pages and pages of reading, this is a bullet point list of some of the important points with space for notes that makes sense to you! You are always welcome to contact me with any questions! • •
Nearly all forensic disciplines have some element(s) of subjectivity. This does not make them inherently bad or unreliable.
9-1-1 Call Analysis • • • •
Statement analysis applied to 9-1-1 death calls. Initial research showed that over 30% of the time, the caller is the killer. Recent series of ProPublica articles labeling it as junk science. Useful tool.
Latent Prints • • • • • •
Even identical twins do not have the same fingerprints. No universal number of minutiae points required for identification, generally 8-12 points accepted in court. Palmar flexion crease identification. Scene prints – partial, smudged, unknown number of touches. Surface on which prints are found is critical. Fingerprints (like DNA) do not have a “time stamp” on them – they can tell you “who”, but not “when”.
Bloodstain Pattern Analysis • •
Analysis of the size, shape, distribution and location of bloodstains in order to try to determine the events that created them. Classification of bloodstains (James, Kish and Sutton, pg 69)
P.O. Box 911 · Buffalo, NY · Phone: 716-913-8530 · contact@az-forensics.com · www.az-forensics.com
Passive
Spatter
Altered
Contact
Impact Mechanism
Clotted
Drop(s)
Secondary Mechanism
Diluted
Flow
Projection Mechanism
Dried
Saturation/ Pooling
Diffused
Free Falling Volume
Insects
Sequenced
Voids
• • • • •
Often, more than one mechanism can account for a given pattern. Spatter, not splatter! If more than one mechanism is possible in a given case, the analyst MUST include all possibilities. Series of ProPublica articles labeling it junk science. Education and experience of analyst is important – currently no universal minimum standard for education.
Firearms • • • •
Handguns (pistols, revolvers) and long guns. Rifling (lands and grooves) of handguns and rifles are basis of comparing projectiles and firearms. Firearm components (ex, firing pin, extractor, ejector, etc.) impart marks to cartridge case, to permit potential identification. Gunshot residue (GSR) o Lead (Pb), barium (Ba) and antimony (Sb) present together in spheroid particle. o 2 component particles may be reported, though not as significant as 3 component. o Many laboratories will not conduct GSR (primer residue) testing to determine “shooter” status. o If collected, circumstances of collection are important: location, before or after transport in a police car, in interrogation room, who collected and were steps taken to minimize/eliminate contamination? o Range of Fire Estimation – burned, unburned or partially burned gunpowder originating from the barrel of the gun.
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Crime Scene Reconstruction (CSR) • • • • •
No universal definition of CSR, endeavors to determine what happened and how it happened (and what could not have happened). Some define CSR as “employing the scientific method of analysis to identify the best explanation and sequence of objective actions for the incident in question”. Should rely on scientifically defensible conclusions. Common: bloodstain pattern analysis, traffic accident and trajectory. Quality/reliability of the reconstruction is dependent on the quality of the crime scene investigation, laboratory analysis, etc. Garbage in, garbage out!
ALWAYS REQUEST BENCH NOTES AND LABORATORY INFORMATION MANAGEMENT SYSTEM (LIMS) CHAIN OF CUSTODY FOR ANY LABORATORY TESTING CONDUCTED!
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It’s never a bad idea to have an expert review any testing (along with the bench notes!) that has been done.
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Sometimes utilizing an expert in a non-testifying capacity, to evaluate opposing side’s experts and assist with cross examination questions is more useful, particularly with equivocal case facts.
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It is the rare case that should depend on a single piece of forensic evidence. Most often, they are all just tools in the toolbox to help put the pieces together.
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Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
The Final Curtain: Writs, Appeals, & Preserving the Record
Speaker:
Jani Maselli Wood
Harris County Public Defender's Office 1201 Franklin St., 13th Floor Houston, TX 77002 713.274.6721 phone 713.437.4322 fax jani.maselli@pdo.hctx.net email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Last Curtain Call Preserving the Record Appeals Writs
Jani Maselli Wood Harris County Public Defender’s Office Jani.Maselli@pdo.hctx.net 713.274.6700
** Attached at the end cheat sheet[s]” to take to trial. One is specific to voir dire. The other covers issues from the Code of Criminal Procedure an the Rules of Evidence. It hopefully includes most errors, how to preserve them, and case law to support your objections. As an introductory note, always make your objection under any Constitutional provision as well as statutory authority. For appellate purposes, this makes the argument infinitely easier. In every objection, argue that there besides being a constitutional violation, the error affects the defendant’s “substantial rights.” Remember to bring your objection to an adverse riling. Object, and if sustained, ask for a limiting instruction. If the instruction is given, move for a mistrial. Only when the defendant’s objection has received an adverse ruling, is error preserved.
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Preserving Error 1.
Tex. R. App. P. 33.1 Timely Specific Obtain A Ruling
2.
Your Objections must be constitutional. 44.2. Reversible Error in Criminal Cases (a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. (b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.
3.
Prepare for all of this pretrial. None of this should be a surprise. A. B.
What does the State have to prove? What will the jury charge look like?
C. D.
What evidence do you want in? What evidence do you want out?
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Planting Error Top Ways to Make Your case for an Appeal 1.
It is up to you. A.
2.
McGirt v. Oklahoma, 140 S.Ct. 2452 (2020); Sharp v. Murphy, 140 S.Ct. 2412 (2020).
Voir Dire and Jury Charge error are fertile grounds for reversal A
Time limits with voir dire
A two-part test applies when a party complains of an inability to address proper questions to the whole venire panel: (1) whether the complaining party attempted to prolong the voir dire, and (2) whether the questions that the party was not permitted to ask were proper voir dire questions. McCarter v. State, 837 S.W.2d 117, 119-20 (Tex.Crim.App.1992). A third prong is added when a party is not permitted to ask questions of individual jurors: (3) whether the party was not permitted to examine prospective jurors who actually served on the jury. Id. at 120. B.
Jury charge requests.
If you do not ask - you will not receive. Texas Pattern Jury Charges vs. what we receive: “...a six-page impenetrable forest of legal “argle-bargle” Reeves v. State, 420 S.W.3d 812, 817 (Tex. Crim. App. 2013). C.
Jury charge objections
Article 36.14 of the Texas Code of Criminal Procedure states in part: [I]n each felony case … tried in a court of record, the judge shall, before the argument begins, deliver to the jury…a written charge distinctly setting forth the law applicable to the case. D.
How do we extend Batson and J.E.B.? Religion?
Batson v. Kentucky, 476 U.S. 79 (1986), J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). Batson challenge based on race involves a three-step inquiry: (1) the defendant must make a prima facie showing that a venire member was peremptorily excluded because of race; (2) the State must provide race-neutral reasons for the challenged peremptory strike; and (3) the defendant must rebut the State's explanations. See Tex.Code Crim. Proc. Ann. art. 35.261(a) (Vernon 1989); Simpson v. State, 119 S.W.3d 262, 268 (Tex.Crim.App.2003). Batson challenges may also be based on gender or ethnicity. See J.E.B. v. Alabama, 511 U.S. 127, 146 (1994); Hernandez v. New York, 500 U.S. 352, 370-72 (1991); Guzman v. State, 85 S.W.3d 242, 245 (Tex.Crim.App.2002). However, article 35.261 applies only to race-based peremptory challenges. See Tex.Code Crim. Proc. Ann. art. 35.261. Why is this still the law: Litigants may use peremptory challenges to exclude persons from service on -3-
juries in individual cases on basis of their religious affiliation. Casarez v. State, 913 S.W.2d 468 (Tex. Crim. App. 1994), on reh'g (Dec. 13, 1995) 3.
4.
Reread the Constitutions. Tex. Const. Art. I, sec. 10
U.S. Constitution Amends. V, VI
Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Reread the law. A.
Identify your law issues early in the case. Arrest - TEX. CODE CRIM. PROC. ART. 15 ET SEQ. Search - TEX. CODE CRIM. PROC. ART. 18 ET SEQ. Statements/Confession - TEX. CODE CRIM. PROC. ART. 38.22 Suppression - TEX. CODE CRIM. PROC. ART. 38.23 Accomplices/Law of parties - Tex. Penal Code Complaint or indictment - TEX. CODE CRIM. PROC. ARTS. 21, 28 ET SEQ Elements of the offense - TEXAS PENAL CODE CH. 7 Limitations - TEX. CODE CRIM. PROC. ARTS. 12.01 AND 12.02 -4-
Lesser-included offenses - TEX. CODE CRIM. PROC. ART. 37.09 Justifications - TEXAS PENAL CODE CH. 9 Defenses - TEXAS PENAL CODE CH. 8 Enhancements - finality, sequencing, proof - TEXAS PENAL CODE § 12.42
B.
The PSI
The Statute: Have you read it? Does your probation office comply with the statute? Did they comply in this case? Texas Code Criminal Procedure Art. 42A.253. Contents of Presentence Report (a) A presentence report must be in writing and include: (1) the circumstances of the offense with which the defendant is charged; (2) the amount of restitution necessary to adequately compensate a victim of the offense; (3) the criminal and social history of the defendant; (4) a proposed supervision plan describing programs and sanctions that the community supervision and corrections department will provide the defendant if the judge suspends the imposition of the sentence or grants deferred adjudication community supervision; (5) if the defendant is charged with a state jail felony, recommendations for conditions of community supervision that the community supervision and corrections department considers advisable or appropriate based on the circumstances of the offense and other factors addressed in the report; (6) the results of a psychological evaluation of the defendant that determines, at a minimum, the defendant's IQ and adaptive behavior score if the defendant: (A) is convicted of a felony offense; and (B) appears to the judge, through the judge's own observation or on the suggestion of a party, to have a mental impairment; (7) information regarding whether the defendant is a current or former member of the state military forces or whether the defendant currently serves or has previously served in the armed forces of the United States in an active-duty status and, if available, a copy of the defendant's military discharge papers and military records; (8) if the defendant has served in the armed forces of the United States in an active-duty status, a determination as to whether the defendant was deployed to a combat zone and whether the defendant may suffer from post-traumatic stress disorder or a traumatic brain injury; and (9) any other information relating to the defendant or the offense as requested by the judge. (b) A presentence report is not required to contain a sentencing recommendation. Tex. Code Crim. Pro. Ann. art. 42A.253
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5.
Offers of proof. “Mr. Smith make an offer of proof regarding the testimony of ___________. I would like to put on the record the testimony that the witness would have given or we can have the jury out and call the witness and do the testimony in question/answer format.” “The Court has excluded testimony by _______ about ______________. The witness _________ would have testified that _____________________.” “Judge, this evidence is admissible, relevant, and needed for _______________. Without this evidence, Mr. Smith is not able to defend his case in violation of due process and the right to a fair trial. We are harmed from this exclusion because _________________. No other witness can present this exact testimony and Mr. Smith needs it for his constitutional right to a fair trial.”
6.
Reread ALL the rules of evidence.
7.
Handle pretrial evidentiary issues as necessary. Provide briefing to the court. Discern what evidence the State has that you want excluded. What evidence do you have that the State may object to. All these issues should be fully briefed with case law for the court.
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8.
State’s experts. Have your Daubert hearing. “under the regime of Daubert a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist.” Co b le v . State , 330 S.W.3d 253, 277 (Tex. Crim. App. 2010). Brantley v. State, 606 S.W.3d 328 (Tex. App.--Houston [1st Dist.] 2020, no pet.). “The test for reliability of an expert’s opinion differs depending on whether the testimony is based on hard science or soft science. Hard sciences are ‘areas in which precise measurement, calculation, and prediction are generally possible,’ and ‘include mathematics, physical science, earth science, and life science.’ Soft sciences, on the other hand, ‘are generally thought to include such fields as psychology, economics, political science, anthropology, and sociology.’ ‘The distinctions between hard and soft sciences may be blurred, and the reliability inquiry is flexible.’ The test for reliability of soft-science expert testimony ... ‘centers on the principles and methodology, and not on conclusions an expert generates by using those principles or methodology.’ An expert’s opinion is inadmissible if it is ‘connected to existing data only by the expert's own assertions.’ If an analytical gap exists between the data and the expert’s opinion, the opinion should be excluded as unreliable.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 592-93 (1993). Faced with a proffer of expert scientific testimony, … the trial judge must determine at the outset, pursuant to [FRE] 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Paredes v. State, 462 S.W.3d 510, 517-18 (Tex.Crim.App.2015). “[S]everal general principles [regarding the Confrontation Clause and lab reports] are clear, assuming a defendant was afforded no prior opportunity to cross-examine. Hall v. State, 297 S.W.3d 294, 297 (Tex.Crim.App.2009). TRE 101 “specifically provides that the [TREs], with the exception of those that concern privileges, do not apply to suppression hearings. Thus, evidence that is otherwise inadmissible at trial under the [TREs] may well be admissible at a suppression hearing. So in this case, because [TRE] 702’s requirements, as set out in Kelly [v. State, 824 S.W.2d 568 (Tex.Crim.App.1992)], do not apply to suppression hearings, there is no threshold admissibility determination under the [TREs]. Vela v. State, 209 S.W.3d 128, 130 (Tex.Crim.App.2006). TRE 104(a), 401, 402, and 702 “set out three separate conditions regarding admissibility of expert testimony. At 131: These rules require a trial judge to make three separate inquiries, which must all be met before admitting expert testimony: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case. These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.
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9.
Defense experts. Have one. Even if you are hired counsel, if your client is indigent they are entitled to expert assistance. Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App. 2005). If any reasonable attorney appointed to represent an indigent defendant would be expected to investigate and request expert assistance to determine a deceased infant's cause of death, a privately retained attorney should be held to no lower standard. As the Supreme Court has explained, “The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant's entitlement to constitutional protection.... [W]e see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.”
10.
Watch for trends in the law. A.
Pending PDRs. Pending writ issues. Cert petitions granted. https://www.txcourts.gov/media/1451624/pdr-issues.pdf https://www.txcourts.gov/media/1450086/article-1107-filed-and-set-writ-issues.pdf https://www.scotusblog.com/
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Appeals This portion of the paper will focus on the procedural requirements along with some substantive tips to use in practice. The art of brief writing is more than a mere recitation of the facts with some case law added for impact. It requires strict adherence to the Rules of Appellate Procedure, a thorough knowledge of the facts, and an understanding of the requisite law. From that, your art of persuasion will produce a brief worthy of your client and a joy for a Court read. 1. Rules T e x R. Ap p . P.38.1 Contents of an Appellate Brief The appellant's brief must, under appropriate headings and in the order here indicated, contain the following: (a) Identity of Parties and Counsel. The brief must give a complete list of all parties to the trial court's judgment or order appealed from, and the names and addresses of all trial and appellate counsel, except as otherwise provided in Rule 9.8. (b) Table of Contents. The brief must have a table of contents with references to the pages of the brief. The table of contents must indicate the subject matter of each issue or point, or group of issues or points. [Must contain page references to each section of the brief and page references to each issue and sub issues, as well] (c) Index of Authorities. The brief must have an index of authorities arranged alphabetically and indicating the pages of the brief where the authorities are cited. [Divide sources into cases, statutes, and miscellaneous authorities; alphabetize authorities within each section; use proper Bluebook and Greenbook form; Do not include pinpoint citations.] (d)
Statement of the Case. The brief must state concisely the nature of the case (e.g., whether it is a suit for damages, on a note, or involving a murder prosecution), the course of proceedings, and the trial court's disposition of the case. The statement should be supported by record references, should seldom exceed one-half page, and should not discuss the facts.
[Succinctly detail the procedural history of the case; discuss NO FACTS in this section; support with references to the record.] Record citation - Rule 7.2 in the Greenbook explains the proper citation form in Texas [(4 R.R. at 28)(I C.R. at 125).] (e) Any Statement Regarding Oral Argument. The brief may include a statement explaining why oral argument should or should not be permitted. Any such statement must not exceed one page and should address how the court’s decisional process would, or would not, be aided by oral argument. As required by Rule 39.7, any party requesting oral argument must note that request on the front cover of the party’s brief (f) Issues Presented. The brief must state concisely all issues or points presented for review. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included. (g)
Statement of Facts. The brief must state concisely and without argument the facts pertinent to the issues or points presented. In a civil case, the court will accept as true -9-
the facts stated unless another party contradicts them. The statement must be supported by record references. [Present without argument, but not neutrally. No citations, but must include record references. The point is to tell your client’s story in terms favorable to your client.] (h)
Summary of the Argument. The brief must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief. This summary must not merely repeat the issues or points presented for review. [Not a throw-away section. This is a shorthand, powerful statement of your position. Possibly the most important section of your brief!]
(i) Argument. The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. [Use best argument first, unless logic dictates otherwise. Conclude with strong argument, as well. Cite to the record throughout. Refer to the parties by proper name, nut status. Avoid footnotes as much as possible.] (j) Prayer. The brief must contain a short conclusion that clearly states the nature of the relief sought. [NOT a conclusion. Must request specific relief or alternative relief, if appropriate.] [The Rules do not require a conclusion, but it is better to include one after the Argument section and before the prayer.] T e x R. Ap p . P. 9.4 Form 9.4. Form Except for the record, a document filed with an appellate court must — unless the court accepts another form in the interest of justice — be in the following form: (a)
Printing. A document may be produced by standard typographic printing or by any duplicating process that produces a distinct black image. Printing must be on one side of the paper.
(b)
Paper Type and Size. The paper on which a document is produced must be 8a/2 by 11 inches, white or nearly white, and opaque.
(c)
Margins. Papers must have at least one-inch margins on both sides and at the top and bottom.
(d)
Spacing. Text must be double-spaced, but footnotes, block quotations, short lists, and issues or points of error may be single-spaced.
(e)
Typeface. A document produced on a computer must be printed in a conventional typeface no smaller than 14-point except for footnotes, which must be no smaller than 12-point. A typewritten document must be printed in standard 10-character-per-inch (cpi) monospaced typeface.
(f)
Binding and Covering. A paper document must be bound so as to ensure that it will not lose its cover or fall apart in regular use. A paper document should be stapled once in the top left-hand corner or be bound so that it will lie flat when open. A paper petition or brief should have durable front and back covers which must not be plastic or be red, black, or dark blue.
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(g)
Contents of Cover. A document's front cover, if any, must contain the case style, the case number, the title of the document being filed, the name of the party filing the document, and the name, mailing address, telephone number, fax number, if any, email address, and State Bar of Texas identification number of the lead counsel for the filing party. If a party requests oral argument in the court of appeals, the request must appear on the front cover of that party’s first brief.
(h)
Appendix and Original Proceeding Record. A appendix may be bound either with the document to which it is related or separately. If separately bound, the appendix must comply with paragraph (f). A paper record in an original proceeding or a paper appendix must be tabbed and indexed. An electronically filed record in an original proceeding or an electronically filed appendix that includes more than one item must contain bookmarks to assist in locating each item.
(i) Length. (1) Contents Included and Excluded. In calculating the length of a document, every word and every part of the document, including headings, footnotes, and quotations, must be counted except the following: caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix. (2) Maximum Length. The documents listed below must not exceed the following limits: (A)
A brief and response in a direct appeal to the Court of Criminal Appeals in a case in which the death penalty has been assessed: 37,500 words if computer generated, and 125 pages if not.
(B)
A brief and response in an appellate court (other than a brief under subparagraph (A)) and a petition and response in an original proceeding in the court of appeals: 15,000 words if computer generated, and 50 pages if not. In a civil case in the court of appeals, the aggregate of all briefs filed by a party must not exceed 27,000 words if computer generated, and 90 pages if not.
(C)
A reply brief in an appellate court and a reply to a response to a petition in an original proceeding in the court of appeals: 7,500 words if computer generated, and 25 pages if not.
(D)
A petition and response in an original proceeding in the Supreme Court, a petition for review and response in the Supreme Court, a petition for discretionary review and response in the Court of Criminal Appeals, and a motion for rehearing and response in an appellate court: 4,500 words if computer generated, and 15 pages if not.
(E)
A reply to a response to a petition for review in the Supreme Court, a reply to a response to a petition in an original proceeding in the Supreme Court, and a reply to a response to a petition for discretionary review in the Court of Criminal Appeals: 2,400 words if computer-generated, and 8 pages if not.
(3) Certificate of Compliance. A computer generated document must include a certificate by counsel or an unrepresented party stating the number of words in the document. The person certifying may rely on the word count of the computer program used to prepare the document. (Appendix A is a
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sample certificate of compliance). 2. Statement of Facts This section is the most important section of your brief and where you introduce your client’s story to the Court. How do you present the facts of the trial in a compelling, readable format? Probably the least effective way is to begin with the first witness and state, “Detective Jones testified ...” Tell your story as cohesively and persuasively as possible. Your facts may begin with the defense case in chief, because obviously those fact witnesses were probably more helpful to your client’s case. The Statement of Facts is your client’s story. Rarely is his story ever told best in the order of the State’s witnesses against him. There are three types of facts: - Legally significant facts - Background facts; - Emotionally significant facts How you present these facts to the Court depends on each discrete case. Background is important for the Court to understand the complete picture. Emotionally significant facts can be sparingly used to persuade the reader to see your point of view. Legally significant facts should not be hidden in your paragraphs or casually mentioned. These facts will be used for the legal analysis section and therefore must be thoroughly and fairly presented. Emotionally significant facts which help the State should be avoided when you present your facts. However, that does not mean you can ignore relevant facts. Remember, you must always fairly present the facts. 3.
Issues Presented
“In law the right answer usually depends on putting the right question.” -- Estate of Rogers v. Comm’r, 320 U.S. 410, 413 (1943)(Frankurter, J.). There are several schools of thought on how to best present your issue. The point is that the Court needs to completely understand what your issues are. Under/Does/When Format Under Texas law, did the trial court commit reversible error by refusing to grant a hearing on the motion for new trial when new evidence, previously unavailable, was presented in the motion for new trial? Whether/When Format Whether the trial court abused its discretion under Texas law when it refused to grant a hearing on the motion for new trial when new evidence, previously unavailable, was presented in the motion for new trial? Multi-sentence (“deep issue”) format At approximately 4:30 p.m., the victim was standing on the sidewalk and noticed a man in an older station wagon staring at her as he drove by. A few minutes later, she saw the car drive by again. This time, the man pulled the car in front of the victim, blocking her path. He got out of the car and when he
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was two to three feet from her, pulled a gun. The victim stared at the man for a minute and ran. A short time later, the police asked the victim if a certain pedestrian looked like her assailant. After looking closely at the pedestrian, the victim identified him as her assailant. Under Texas law, did the trial court abuse its discretion by denying the defendant’s motion to suppress the identification?
The Brian Garner “90 second test” (Bryan A. Garner, The Winning Brief 55 (2004). To frame a good persuasive issue, you must: - Put it up front; - Break it into separate sentences, following a premise-premise-question form; - Weave in enough facts so that the reader can truly understand the problem; and - Write it in such a way that there is only one possible answer. A criminal defendant has the right to be present whenever prospective jurors are questioned on voir dire. During voir dire in this murder case, a prospective juror was questioned by the judge at the bench. Williams was present and positioned so that he could hear the conversation. He asked to approach the bench while the prospective juror was questioned, but his request was denied. Did that denial violate Williams’ right to be present? Declaratory Sentence Format The trial court committed reversible error by refusing to grant a hearing on the motion for new trial when new facts, previously unavailable, were presented in the motion for new trial. 4. Argument CREAC - State Conclusion - State Rule that Supports Conclusion - Prove/Explain Rule through citation to authority -Apply rule to facts (plain language/analogous cases/policy/counter-arguments - Sum up conclusion Each of your arguments should follow this formula. Here are some CREAC tips: a.
Don’t be conclusory - instead of merely stating the conclusion, explain how you reached the conclusion. For example: The trial court erred in not granting the motion. The trial court erred when it failed to grant the motion to suppress because the police officer had no reasonable suspicion to detain the appellant. See Lockett v. State ,16 S.W.3d 504, 505 (Tex. App. – Houston [1st Dist. 2000)(explaining that“appellant makes the conclusory statement that the extraneous offense ‘should not have been argued by the
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prosecutor as an 'addition' in assessing punishment.” Because appellant provides no argument and cites no authority supporting this statement, nothing relative to this claim is presented for review”) b.
Compare fact to fact. Whenever possible, refer to a critical fact in the precedent when comparing that fact to a fact in your client’s case. See Nguyen v. State, 177 S.W.3d 659, 669 (Tex. App. – Houston [1st Dist.] 2005)(holding that without record citations, appellate court could not determine whether hearsay was admitted over proper objection or whether any exception for the hearsay statements applied, and thus, defendant waived, for purposes of appeal, her claim that trial court erred in admitting individual's hearsay statements made to police officers).
c.
Explain the law before applying the facts. Before applying a case to the facts of your case, make sure you previously explained it. Then, you can refer to the case when applying it to your client’s case. Discussing a case for the first time within the analysis is confusing to the reader. The reader then has to comprehend the facts, holding, and reasoning of that case, as well as understand how it compares to your client’s case. See Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005)(holding that because appellant provided no argument or authority with respect to the protection provided by the Texas Constitution, we overrule these points of error as inadequately briefed).
d.
Understand the law before applying the law. This goes back to finding the relevant law, synthesizing a workable rule, and then applying it to your facts. You cannot analyze the law unless you completely understand it. Your analysis will reflect any conclusion regarding the law.
e.
Analyze one issue at a time. Do not analyze several issues at once. This can be an appropriate point to use subheadings within your brief to assist the reader as you move from one issue to another. See Martinets v. State, 884 S.W.2d 185 (Tex. App. – Austin 1994)(holding that by combining more than one contention in single point of error, appellant risks rejection on grounds that nothing will be presented for review).
f.
Analyze the opponent’s argument. Do not ignore the opposing argument. Predict the other side’s argument and incorporate those arguments in your analysis.
g.
Do not fight the law. It is unethical to omit unfavorable authority or bend the law so it fits within your intended conclusion. Instead, deal with the law head-on. Try to distinguish authority that is negative to your legal position. See Grogan v. State, 745 S.W.26 450 (Tex. App. – Houston [1st Dist.] 1988)(holding that when counsel's brief misstates holdings of cases described, creating impression that these cases held completely opposite to their actual holdings, court will refer matter to Disciplinary Review Committee).
h.
Be concise. Make your point and move on. Avoid repetition and confusing legal jargon.
i.
Remember the alternative argument. An alternative argument should be thoroughly addressed and analyzed. Try to provide the court with several options to rule in your favor.
5.
Choosing Authority A. Reading the Law
Nothing can prepare you for advocacy and persuasion better than knowing the law and knowing it better than your opponent. There are several ways to maintain awareness of recent case law.
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1. The Court of Criminal Appeals typically issues new cases each Wednesday morning. Read each published case. (And if you have time, the unpublished cases and “statements” can be extremely informative.). http://www.cca.courts.state.tx.us/opinions/docketsearch.asp 2.
Read your local Court of Appeals opinions. Especially the reversals. http://www.1stcoa.courts.state.tx.us/ (On the right hand side is a list of every appellate court in Texas). 3. Read SCOTUSBLOG or subscribe to a service with the recent Supreme Court opinions. http://www.scotusblog.com/ http://www.law.cornell.edu/help/ 4. The Fifth Circuit. http://www.ca5.uscourts.gov/rssfeeds.aspx http://circuit5.blogspot.com/ http://blogs.findlaw.com/fifth_circuit/ B.
Research
Whatever service you decide to use for your legal research, it is imperative you understand its limitations and possibilities. 1. 2. 3. 4. 5. 6. 7. 8.
Formulate a research plan. Generate effective search terms (stale /s affidavit vs. “search warrant”). Don’t be afraid to consult secondary sources to find primary authority. Use secondary sources as persuasive authority. Lafave and Wigmore still carry great weight. (Especially if controlling law is unclear). Read the actual case your case cites. Read the actual statute or constitutional provision. Read all rules and any local rules. http://www.supreme.courts.state.tx.us/rules/ Legislative history can be very illustrative. http://www.capitol.state.tx.us/ https://www.congress.gov/
Here are some tricks for WestLaw that can lead to better cases and fewer results. 1. 2. 3. 4. 5. 6. C.
Terms and connectors and fields ti(state or ex) Sy(rev!) Da(before ) or da(after ) At(name) Key cite and key numbers
New Ways of Looking at the Law 1. 2. 3.
Question every statute. Question every decision by the trial court or court of appeals - where do they get their authority? Look at the rules making authority of Courts of Appeals.
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4. Re-read the Texas Constitution. 5. Re-read the entire Code of Criminal Procedure. 6. Re-read the Texas Rules of Appellate Procedure (especially if you are a trial attorney) D. Old Way of Looking at the Law Do not forget your basic Due Process argument. By objecting under a constitutional standard, the appellate court is forced to use a different, more stringent standard of review.1 E. Creativity When you do not have the law or the facts on your side, this is the time for the most creativity. Before Atkins v. Virginia, an argument that executing the mentally retarded was unconstitutional was routinely rejected. Through continued perseverance, the law was changed. It was changed, in part, because the defense attorneys were able to show a shifting and the “evolving standards of decency that mark the progress of a mature society.”2 The same issue, but argued differently brought about a final victory. Look to policy arguments, laws of other jurisdictions, and parallel laws to create a new way to look at the same issue. 6.
How to Say it? A. The Psychology of Persuasion. Louis J. Sirico, Jr. and Nancy L. Schultz, Persuasive Writing for Lawyers and the Legal Profession (Lexis Nexis 2nd ed. 2001).
1. It is easier to persuade someone if the other person understands the message; persuasive messages are clear messages. 2. Effective use of emotion can be very persuasive. 3. Persuasive arguments are credible arguments; credibility can be a function of the speaker as well as the message. Pathos - Effective use of emotion. Make the audience relate to your client’s story. Visualization 1
Texas Rule App. Proc. 44.2 Reversible Error in Criminal Cases
(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. (b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. (c) Presumptions. Unless the following matters were disputed in the trial court, or unless the record affirmatively shows the contrary, the court of appeals must presume: (1) that venue was proved in the trial court; (2) that the jury was properly impaneled and sworn; (3) that the defendant was arraigned; (4) that the defendant pleaded to the indictment or other charging instrument; and (5) that the court's charge was certified by the trial court and filed by the clerk before it was read to the jury. 2 Atkins v. Virginia, 536 U.S. 304, 311-12 (2002) .
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Details instead of generalizations Know the sympathies of your audience Ethos - Subtly persuading the audience of your own credibility. Listeners form impressions of your credibility, expecting that you know and have applied the law to your unique facts. Acknowledge and rebut adverse authority. B.
Credibility 1.
Make your argument clear and credible. Bryan Garner calls it the 90 second test. Bryan A. Garner, The Winning Brief, 55 (Oxford University Press 2d ed. 2004)
Every brief should make its primary point within 90 seconds. But probably only 1% of American brief s actually succeed on this score. The ones that do are spectacular to read: within 90 seconds, the judge understands the basic question, the answer, and the reasons for that answer. C.
Clarity Ross Guberman calls it the Brass Tacks. Explain “who, what, when, where, why, how.” Ross Guberman, Point Made, 3 (Oxford University Press 2011).
...take a deep breath and answer the key questions you would have if you were reading about your case in the newspaper: Who are the parties? When and where and how did the dispute take place? What are the claims? Why should you win?
D. Organization 1. 2. 3. 4. 5. 6. 7.
Make an outline. Even if you do not think you need an outline, make one anyway. This makes an excellent detailed Table of Contents Remember you are creating a roadmap for the reader. Use subheadings. It is part of the roadmap and forces you to stay within your outline. Remember IRAC or CREAC. Different issues are each given their own roadmap and CREAC treatment. Use parentheticals. Best arguments first. Alternative arguments are usually helpful.
Your Audience
What the judges are looking for? Or, more appropriately, why would they be afraid of ruling for you? Judges fear being reversed. They are a conservative group that does not want to misconstrue a doctrine or statute. Judges do not want to create “new duties, rules, or defenses.”
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Judges want to do the right thing. But remember, they know little, if nothing about your case. Maybe you only have 90 seconds to grab their attention. Below is a list of judicial concerns I have heard through the years. (Some to be taken with a healthy grain of salt.). 1. Never mis-cite the record or law. You lose credibility with your audience. 2. Be obsessive about adherence to every rule. 3. Be concerned about readability. 4. Don’t forget to brief harm. 5. Don’t forget to argue the standard of review. 6. Write. Re-write. Re-write again. And then read it out loud to yourself. 7. Errors in citations or quotations, typographical errors, misspelled words, errors in grammar and punctuation, convoluted syntax, misplaced modifiers, vague references will cause judges to think less of your professional ability and your client’s case. 8. Remember topic sentences. 9. Respect white space. 10. Embrace and bring out your “uglies.” 11. Avoid lengthy block quotes. 12. Do not engage in personal attacks. 13. Bullets and lists can be very effective. 14. An appendix with a key part of the transcript can be especially helpful. 15. Short briefs are good. Very good. 8.
Editing Tips A. Review Your Draft 1. 2.
Did you identify all the issues? Did you make your position clear as to each issue and clearly request relief for each issue? Did you provide the best support for each of your assertions? Did you anticipate and subtly address your opponent’s arguments?
3. 4. B. 1. 2.
Focus on Your Persuasive Techniques Did you present each argument in its logical order? Did you include clear connections between arguments and the elements of each argument involved? Did you present the rule, the cases, and the facts in a light most favorable to your client?
3.
C.
Focus on Your Grammar and Spelling 1. Were you as concise as you could be? 2. Are commas out of place? 3. Did you make any typo 4. Don’t misspell names, watch for juxtaposed letters (i.e. from/form; trial/trail, etc) D.
1.
Review Your Citations
Did you make any citation errors?
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2. 3. 9.
Are the page numbers in your table of authorities correct? Are the page numbers in your table of contents correct?
Substantive/Practitioner Points
A. Render vs. Remand Sufficiency of the evidence - Typically you want to argue the evidence is legally insufficient to support the conviction first because it is a rendition point. If you win this, the Court of Appeals does not have to consider the rest of your issues. The United States Supreme Court set the standard for reviewing legal sufficiency of the evidence in Jackson v. Virginia, 443 U.S. 307 (1979), see also Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999). The evidence is examined in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Dewberry, 4 S .W.3d at 740, citing Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. 2781; Arnold v. State, 873 S.W.2d 27, 30 (Tex.Crim.App.1993). In a theft case that the First Court of Appeals determined was legally insufficient, the Court explained: In determining whether circumstantial evidence is legally sufficient to establish guilt, we must consider the “logical force of the combined pieces of circumstantial evidence in the case, coupled with reasonable inferences from them.” Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App.2006) (holding that evidence was legally sufficient to show that appellant exercised actual care, custody, control, or management of cocaine on coffee table by examining combined pieces of circumstantial evidence). A court must not conclude that the evidence is legally insufficient by merely analyzing each fact in isolation, and must not rely on alternative inferences from or explanations for the isolated pieces of evidence. Id. at 164. Instead, appellate courts are to view the evidence “in combination and in sum total.” Id. at 166. Christensen v. State, 240 S.W.3d 25, 31 (Tex. App.-Houston [1st Dist.] 2007). B. No Issue? Avoid the dreaded Anders brief at all cost. When you just cannot find an issue, be creative. Look for something that can be raised. C. Preservation of Error Tex. R. App. P. 33.1 Preservation; How Shown (a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and (2) the trial court: (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. Make sure your objection is properly preserved. If not, remember Texas law is clear that in order
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to preserve error there must be an objection and the court must be on notice as to the nature of the objection: The generally acknowledged policies of requiring specific objections are twofold. First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony. Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App. 1977). An objection may be phrased in any manner that sufficiently apprises the trial court and opposing counsel of the nature of the complaint. Ex parte Little, 887 S.W.2d 62, 65 (Tex.Crim.App.1994). If your issue is “kind of” preserved, argue Zillender and notice to the Court. If your issue is not preserved, there is no plain error in Texas, unfortunately. No objection required for jury charge error. See Jennings v. State, 302 S.W.3d 306, 311 (Tex.Crim.App.2010) (all jury charge errors are cognizable on appeal, but unobjected-to error is reviewed for “egregious harm,” while objected-to error is reviewed for “some harm”); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g). What to do with Tex. Rule. Evid. 103(d)? (d) Fundamental Error in Criminal Cases. In a criminal case, nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court. Although case law is replete that this is virtually non-existent in Texas, we should not be afraid to raise such issues, citing this rule. See Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002)(only error such as denial of counsel or the right to a trial by jury are considered fundamental) D. Standards of Review Look for constitutional challenges when possible. The possibility for reversal with constitutional error is significantly greater than with non-constitutional harm. Tex. Rule App.Proc. 44.2 (a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. (b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. E. Voir Dire Issues Erroneous Denial of Challenge for Cause When reviewing the record for error regarding a trial court's denial of a challenge for cause, “an appellant must: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the complained-of veniremember; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and
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(6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use.” Allen v. State, 108 S.W.3d 281, 282-83 (Tex.Crim.App.2003). Improper Comments to the Venire by Judge The general rule is that counsel must object to the trial judge's comments during trial in order to preserve error. See Tex.R.App. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App.2000) (plurality op.) Object under Sixth Amendment, See Livingston v. State, 782 S.W.2d 12 (Tex. App. – Dallas 1989) Object under Tex.Code Crim. Proc. Ann. art 38.05: Judge shall not discuss evidence In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case. By State When appellant complains about an improper remark by the prosecutor during voir dire, appellant must object when the remark is made. Beltran v. State, 99 S.W.3d 807, 811 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). Limitations on Questions To preserve error as to the improper limitation of voir dire, an appellant “must show that he was prevented from asking particular questions that were proper.” Sells v. State , 121 S.W.3d 748, 755 -756 (Tex.Crim.App.2003). Record should contain bill of exceptions to show questions defense would have asked. See Easterling v. State, 710 S.W.2d 569, 575-76 (Tex.1986) (“Before we can determine if the trial court has abused its discretion by improperly restricting the voir dire examination, it is necessary for the record to reflect what questions the defendant desired to ask the jury panel”) A two-part test applies when aparty complains of an inability to address proper questions to the whole venire panel: (1) whether the complaining party attempted to prolong the voir dire, and (2) whether the questions that the party was not permitted to ask were proper voir dire questions. McCarter v. State, 837 S.W.2d 117, 119-20 (Tex.Crim.App.1992). A third prong is added when a party is not permitted to ask questions of individual jurors: (3) whether the party was not permitted to examine prospective jurors who actually served on the jury. Id. at 120. Right to Ask a Proper Question Appellant was prevented from asking a proper commitment question during voir dire and was thereby prevented from challenging for cause any jurors harboring an automatic disbelief of testimony given by a convicted felon, See Vann v. State 216 S.W.3d 881, 884 -888 (Tex.App.-Fort Worth,2007) Right to Ask Questions Previously Asked by State or Court “Defense counsel may not be precluded from the traditional voir dire examination because the questions asked are repetitious of those asked by the court and prosecutor.” E.g., McCarter, 837 S.W.2d at 121. Defendant has the right to question the prospective jurors in her own individual manner “to emphasize a point or uncover a hidden bias and [should] not be forced to rely on other parties to ask similar questions.” Williams v. State, 804 S.W.2d 95, 107 (Tex.Crim.App.1991).
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Times Limits on Voir Dire To preserve error when the trial court limits the time for voir dire, the objecting party must identify the specific questions it was not allowed to ask. Godine v. State, 874 S.W.2d 197, 200-01 (Tex.App.-Houston [14th Dist.] 1994, no pet.). Identifying general topics for questions is insufficient. S.D.G. v. State, 936 S.W.2d 371, 380 (Tex.App.-Houston [14th Dist.] 1996, writ denied); Godine, 874 S.W.2d at 200-01. Court will consider, had counsel adequately managed his time during voir dire, he would have had sufficient time to question the venire members, Wappler v. State 183 S.W.3d 765, 772 -775 (Tex.App.-Houston [1st Dist.] 2005) F.
Harm Do not avoid arguing the harm. This is probably where you are most likely to lose. To ignore it is at your peril. Some practitioners prefer to argue harm in their reply brief, but I would caution against that. First, you might not get around to filing a reply brief and second, argue it twice, if you do file the reply brief. To not brief harm is tantamount to waiving it, which in all actuality, means you have lost: Furthermore, even assuming Carrizal was not qualified to testify as an expert, appellant failed to allege harm in his brief, and we find no harm. Texas Rule of Appellate Procedure 44.2(b) provides any error, other than constitutional error, that does not affect substantial rights must be disregarded. Tex.R.App. P. 44.2(b). The erroneous admission of evidence is not a constitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). Substantial rights are not affected “if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.” Id. Thus, we must determine whether the error had a substantial or injurious effect on the jury's verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000). (emphasis supplied). Turner v. State, 252 S.W.3d 571, 585 (Tex.App.-Houston [14th Dist.] 2008). In one case, the Court failed to even address an issue because harm was inadequately briefed: An appellate brief “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Remsburg's appellate brief makes no effort to show what evidence in the record demonstrates actual harm as a result of the trial court failing to define a term that appears nowhere in the indictment. The totality of his argument is: Mr. Remsburg incurred egregious harm from the trial court's failure to define “serious bodily injury” in the charge. The jury was not instructed that serious bodily injury would mean bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. The jury was allowed unfettered discretion to surmise that serious bodily [sic] was something far less than its statutory definition. At best, Remsburg's argument concerns theoretical harm. The standard of review requires evidence concerning actual harm, which Remsburg has not briefed. We overrule this final point of error as inadequately briefed and affirm the trial court's judgment. Remsburg v. State, 219 S.W.3d 541, 548 (Tex. App.-Texarkana 2007). Use the TRAP standard for harm and actually brief harm. Failure to do so is perilous. G. Ineffective Assistance? Typically these claims are best left for habeas review. But if you have nothing else and perhaps an IAC claim, there have been a slight few cases where IAC has prevailed on direct review.
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Neither Strickland, nor any other precedent from the United States Supreme Court or any Texas Court has held that on direct appeal, the Strickland standard is somehow waived. There is precedent that in most instances habeas review would provide a more adequate forum to present ineffective assistance of counsel claims. See Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999)(citing Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998). In Vasquez v. State, 830 S.W.2d 948 (Tex.Crim.App. 1992), the Court reversed a direct review case based on ineffective assistance of counsel. In Vasquez, the trial counsel never requested a specific instruction based on a valid defense raised by the evidence. Vasquez, 830 S.W.2d at 951. The Court held, "[u]nder the facts of this case, it would have been error for the trial court to refuse such an instruction, had one been requested. Counsel's performance in not seeking the instruction was clearly deficient." Id. In Stone v. State, 17 S.W.3d 348 (Tex.App. – Corpus Christi 2000), the Court of Appeals reversed a conviction based on ineffective assistance of counsel on direct review with no post-trial evidence. The Court determined that counsel was ineffective for eliciting testimony that was clearly inadmissible. Stone, 17 S.W.3d at 351. In deciding to reverse the case the Court made the following rationale: Under the particular facts of this case, we find the record is adequate to show trial counsel's ineffectiveness with regard to admitting the prior murder conviction. The reason for developing a record here would be to ask Stone's attorney what his strategy was in offering the prior conviction evidence through the defendant when it would not come in otherwise. We are convinced that nothing trial counsel could say would make this court believe that it was sound trial strategy... Stone, 17 S.W.3d at 351. H. The “nagging” issue. Sometimes a case is foreclosed by years of precedent. But there is a preserved objection. My vote is to raise it. There was no Atkins or Simmons before Atkins and Simmons. I. First Impressions Summary of the argument and Table of Contents are your chance to shine. The table of contents does not count against your page limitations and can be used to thoroughly outline your argument to the Court. The Summary of the Argument requires no citation to cases or the record and can be your “jury argument” to the Court. I heard a Justice on the COA once say that he read was not the only Justice to read the Table of Contents and Summary of the Argument first. J. Reply Brief Do it - if you have something to say. Have the last word, if it is worth having the last word. Even if you do nothing more than distinguish their cases, you have gotten the last word. Rarely as defense attorneys do we get the last word. 10.
Motion for Rehearing and Motion for Reconsideration En B an c In a perfect world, a motion for rehearing would always be done. In an imperfect, trying to practice criminal law world, they are sometimes difficult to get done within the time frame. Appellate court panels are essentially three-judge courts. Thompson v. State, 89 S.W.3d 843, 856 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd.) (Jennings, J., concurring). En banc review at intermediate appellate courts is utilized to maintain uniformity of a court's decisions as a single, unitary body, even though the court may sit in panels. See O'Connor v. First Court of Appeals, 837 S.W.2d 94, 96 (Tex.1992) (orig.proceeding). Rule 41.2 of the Texas Rules of Appellate Procedure governs the decision to grant a
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motion for rehearing by an en banc court: En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court's decisions or unless extraordinary circumstances require en banc consideration. Tex.R.App. P. 41.2(c); see also Tex.R.App. P. 49.7. When there is no conflict among panel decisions, the existence of “extraordinary circumstances” is required before en banc consideration may be ordered. Thompson, 89 S.W.3d at 856 (Jennings, J., concurring). The standard for en banc consideration is not whether a majority of the en banc court disagrees with all or a part of a panel opinion. Id. Neither is an assertion that an issue is “important” sufficient. Id.
11. Petitions for Discretionary Review http://www.cca.courts.state.tx.us/issues/ISSUES.htm These are not rewrites of your brief. In fact, a good PDR might be more difficult than the original brief. A PDR should tell the Court of Criminal Appeals how and why the Court of Appeals’ decision was erroneous. Your petition for discretionary review must follow the Texas Rules of Appellate Procedure. The Court of Criminal Appeals has been more than clear on what will not suffice for a proper petition for discretionary review: A petition for discretionary review shall be as brief as possible. It shall be addressed to “the Court of Criminal Appeals of Texas” and shall state the name of the party or parties applying for review. The petition shall [emphasis added] include the following: *** (5) Reasons for Review. A direct and concise argument, with supporting authorities, amplifying the reasons relied on for the granting of review. [emphasis added] See Rule 302(c). The opinions of the court of appeals will be considered with the petition, and statements therein, if accepted by counsel as correct, need not be repeated. Tex.Cr.App.R. 302(c) sets out six reasons indicating the character of reasons to be considered in deciding whether to grant review. Although these reasons are not exhaustive, nothing in appellant's petition presents any reasons of similar character. The purpose of the petition for discretionary review is to present cogent, concise reasons why this Court should exercise its discretionary jurisdiction. These reasons are reflected by those set out in Rule 302(c), supra. The importance of the case to the jurisprudence of the State must, therefore, be made apparent in the petition for review. The assertion that the court of appeals was in error as to some point of law, standing alone, may be insufficient to require further review. (footnote omitted) To this end, the portion of the petition designated “Reasons for Review” should specifically address the court of appeals opinion and its effect on our jurisprudence. This presentation should not go into a detailed analysis, but should briefly set out relevant cases and statutes, and note any alleged misstatements or omission of relevant facts. A discussion of principles of law, without reference to the holding of the court of appeals, will usually be insufficient to persuade this Court to exercise its discretionary jurisdiction. (Footnote omitted). Degrate v. State, 712 S.W.2d 755, 756 -757 (Tex. Crim. App. 1986). And while Degrate is over a decade old, the problem persists: I concur in the Court's refusal of discretionary review based on appellant's failure to comply with the rules of appellate procedure and Degrate v. State. From time to time, various members of this Court issue a reminder that petitions for discretionary review must set forth "grounds for review" -24-
stating how the court of appeals erred in the particular case, coupled with "arguments" specifically addressing that error and explaining its general significance to the jurisprudence of Texas. This reminder has the salubrious effect of temporarily decreasing the number of Degrate petitions that this Court receives. It is, alas, of only temporary effect. This past week, for example, we reviewed fifty-nine petitions for discretionary review. Nine of those--almost 17% of the total--fell into the Degrate category. Thus, once more unto the breach, dear friends. (footnotes omitted). Bradley v. State, 235 S.W.3d 808 (Tex. Crim. App. 2007)(Cochran, J., filed a statement concurring in the refusal of the petition, in which Meyers, Johnson, and Holcomb JJ., joined. And Judge Cochran even goes further in her explanation for why the PDR was noncompliant: The rationale for the argument (formerly the "reasons for review") section of a petition is to explain how and why the court of appeals' decision adversely impacts the criminal jurisprudence of Texas. Perhaps the opinion conflicts with other courts of appeals' reasoning on this very topic and thus confuses bench and bar concerning the content of a substantive law or procedural rule. Perhaps it decides a novel and important issue of state or federal law which this court has not yet addressed, but it is an issue that this court should address because it has far-reaching or long-lasting impact or repercussions on other cases. Perhaps the court of appeals applied the wrong legal standard, and thus reached the wrong result in this case and would be likely to do so again. Bradley, 235 S.W.3d at 809. Two sections to be keenly aware of when preparing your petition for discretionary review: Tex. R. App. P. 66.3. Reasons for Granting Review While neither controlling nor fully measuring the Court of Criminal Appeals' discretion, the following will be considered by the Court in deciding whether to grant discretionary review: (a) whether a court of appeals' decision conflicts with another court of appeals' decision on the same issue; (b) whether a court of appeals has decided an important question of state or federal law that has not been, but should be, settled by the Court of Criminal Appeals; (c) whether a court of appeals has decided an important question of state or federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States; (d) whether a court of appeals has declared a statute, rule, regulation, or ordinance unconstitutional, or appears to have misconstrued a statute, rule, regulation, or ordinance; (e) whether the justices of a court of appeals have disagreed on a material question of law necessary to the court's decision; and (f) whether a court of appeals has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of the Court of Criminal Appeals' power of supervision. Petitions for discretionary review are not a copy and paste of your brief to the Court of Appeals. It is an entirely different type of argument primarily explaining why the Court of Appeals got it wrong. 12. Oral Argument Ask for it every time. It sends a message to the court that you believe in your case. Research your panel; knowing your audience is an important part of the presentation of your case. Some helpful tips:
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A. Prepare. Prepare well for oral argument. Listen to Fifth Circuit oral arguments online. Someone like George McCall Secrest, Jr. You can search by his name. http://www.ca5.uscourts.gov/OralArgumentRecordings.aspx B. Know your case. Better than your opponent. Better than the judges. Better than trial counsel. C. Prepare for questions. What questions would you ask if you were the judge? Know your weakest position and have a good answer to it. D. Know the record and update your research. Especially update any cases written by a member of your panel. Know the record. Know the law. E. Answer the question. Listen to the question. Sometimes it might be a softball lobbed right at you. F. Write your rebuttal out before you begin. Know it. End strong. You can rebut any surprise points – but none of it should surprise you at all G. The best “arguments” are conversations. Use that approach.
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Writs 1.
State writs are governed under Chapter 11 of the Code of Criminal Procedure. This paper will focus on postconviction writs in state court.
A. B. C. D. E.
Felony convictions that included imprisonment fall under 11.07 Death penalty writs are under 11.071 Probation writs are under 11.072 Forensic/new science writs under 11.073 Misdemeanor writs under 11.09
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Preservation of Error in Voir Dire By Jani Maselli Wood General Rule Tex. R. App. P. 33.1 Preservation; How Shown (a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and (2) the trial court: (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. Request Voir Dire Be Recorded Without a transcript of voir dire, no error can be presented. Villarreal v. State, 617 S.W.2d 703 (Tex. Crim. App. 1981). Erroneous Denial of Challenge for Cause **Special Rules for Preservation** To preserve error on appeal regarding a trial court's denial of a challenge for cause, “an appellant must: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the complained-of veniremember; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had one to use.” Allen v. State, 108 S.W.3d 281, 282-83 (Tex. Crim. App.2003). Upon a challenge for cause, the examination is not confined to the answers of the juror, but other evidence may be heard for or against the challenge. Tex. Code Crim. P. art. 35.18, Prewitt v. State , 167 S.W.2d 194 (Tex. Crim. App. 1942); Garnder v. State, 306 S.W.3d 274 (Tex. Crim. App. 2009). Erroneous Granting State’s Challenge for Cause Object under TRAP 33.1, Object to final compilation of jury, Exhaust peremptory strikes Request an additional peremptory strike Make record that jury actually selected was not composed of qualified persons Ford v. State, 73 S.W.3d 923, 925 (Tex.Crim.App.2002). -29-
Shuffle Object to denial of right to shuffle Make bill showing “that the listing of the panel members was not random.” Ford v. State, 73 S.W.3d 923, 924-26 (Tex.Crim.App.2002) A defendant has an absolute right to have the jury venire shuffled upon timely demand. Tex.Code Crim. Proc. Ann. art 35.11. The parties have the right to view the entire venire in proper sequence before having the names shuffled, and a defendant cannot be deemed to have exercised his right to a jury shuffle without having had the opportunity to present the motion for a shuffle to the judge. Johnson v. State, 977 S.W.2d 137, 138 -139 (Tex.Crim.App.1998). Improper Comments to the Venire by Judge The general rule is that counsel must object to the trial judge's comments during trial in order to preserve error. See Tex.R.App. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App.2000) (plurality op.) But see Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001)(Blue not necessarily binding precedent). - Object under Sixth Amendment, See Livingston v. State, 782 S.W.2d 12 (Tex. App. – Dallas 1989) - Object under Tex.Code Crim. Proc. Ann. art 38.05: Judge shall not discuss evidence In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case. By State When appellant complains about an improper remark by the prosecutor during voir dire, appellant must object when the remark is made. Beltran v. State, 99 S.W.3d 807, 811 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); Herring v. State, 758 S.W.2d 849 (Tex. App. – Corpus Christi, 1983, no pet.). Limitations on Questions To preserve error as to the improper limitation of voir dire, an appellant “must show that he was prevented from asking particular questions that were proper.” Sells v. State , 121 S.W.3d 748, 755 -756 (Tex.Crim.App.2003). Make bill of exceptions to show questions you would have asked . See Easterling v. State, 710 S.W.2d 569, 575-76 (Tex.1986) (“Before we can determine if the trial court has abused its discretion by improperly restricting the voir dire examination, it is necessary for the record to reflect what questions the defendant desired to ask the jury panel”) A two-part test applies when a party complains of an inability to address proper questions to the whole venire panel: (1) whether the complaining party attempted to prolong the voir dire, and (2) whether the questions that the party was not permitted to ask were proper voir dire questions. McCarter v. State, 837 S.W.2d 117, 119-20 (Tex.Crim.App.1992). A third prong is added when a party is not permitted to ask questions of individual jurors: (3) whether the party was not permitted to examine prospective jurors who -30-
actually served on the jury. Id. at 120.
Right to Ask Questions Previously Asked by State or Court Object Under TRAP 33.1 “Defense counsel may not be precluded from the traditional voir dire examination because the questions asked are repetitious of those asked by the court and prosecutor.” E.g., McCarter, 837 S.W.2d at 121. Defendant has the right to question the prospective jurors in her own individual manner “to emphasize a point or uncover a hidden bias and [should] not be forced to rely on other parties to ask similar questions.” Williams v. State, 804 S.W.2d 95, 107 (Tex.Crim.App.1991). Improper Voir Dire Questions Object under 33.1. Must object before juror answers question. See, Montgomery v. State 198 S.W.3d 67, 74 (Tex.App.-Fort Worth 2006) Time Limits on Voir Dire To preserve error when the trial court limits the time for voir dire, the objecting party must identify the specific questions it was not allowed to ask. Godine v. State, 874 S.W.2d 197, 200-01 (Tex. App.-Houston [14th Dist.] 1994, no pet.). Identifying general topics for questions is insufficient. S.D.G. v. State, 936 S.W.2d 371, 380 (Tex.App.-Houston [14th Dist.] 1996, writ denied); Godine, 874 S.W.2d at 200-01. Limitations must be in the record and defense counsel must request additional time. Little v. State, 758 S.W.2d 551 (Tex. Crim. App. 1988); Guerra v. State, 760 S.W.2d 681 (Tex. App. – Corpus Christi 1988). Court will consider, had counsel adequately managed his time during voir dire, he would have had sufficient time to question the venire members. Wappler v. State 183 S.W.3d 765, 772 -775 (Tex.App.-Houston [1st Dist.] 2005, pet. ref’d.). Commitment Questions General Rule: "[A]n attorney cannot attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts." A question is a commitment question if one or more of the possible answers is that the prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the question. Standefer v. State, 59 S.W.3d 177, 180 (Tex.Crim.App. 2001). All commitment questions are not improper. So long as the law requires a particular type of commitment from jurors-for example, to follow the particular law applicable to the case-then counsel may examine potential jurors concerning their ability to make that commitment. Preservation of Error: Object under TRAP 33.1. To determine whether the question is a proper commitment question, the court first inquires whether one of the possible answers to the question gives rise to a valid challenge for cause. -31-
If it does not, then the question is not proper and should be disallowed by the trial court. If the commitment question gives rise to a valid challenge for cause, then the court must determine whether the question contains only those facts necessary to test whether a prospective juror is challengeable for cause. Additional facts supplied beyond what is necessary to sustain a challenge for cause render improper what otherwise would have been a proper question. Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App.2001). Judicial Bias Object under TRAP 33.1 and See U.S. Const. amends. V, VI, XIV; Tex. Const. art. 1 § 19; Abdygapparova v. State 243 S.W.3d 191, 206 -207 (Tex. App.-San Antonio 2007, pet. ref’d)(holding violation for judge and state to engage in ex parte communications). Batson and J.E.B. A Batson challenge based on race involves a three-step inquiry: (1) the defendant must make a prima facie showing that a venire member was peremptorily excluded because of race; (2) the State must provide race-neutral reasons for the challenged peremptory strike; and (3) the defendant must rebut the State's explanations. See Tex.Code Crim. Proc. Ann. art. 35.261(a) (Vernon 1989); Simpson v. State, 119 S.W.3d 262, 268 (Tex.Crim.App.2003). Batson challenges may also be based on gender or ethnicity. See J.E.B. v. Alabama, 511 U.S. 127, 146 (1994); Hernandez v. New York, 500 U.S. 352, 370-72 (1991); Guzman v. State, 85 S.W.3d 242, 245 (Tex.Crim.App.2002). However, article 35.261 applies only to race-based peremptory challenges. See Tex.Code Crim. Proc. Ann. art. 35.261. Alternate Juror (present during deliberations) Object under TRAP 33.1 and Tex.Code.Crim. Proc. Ann. art. 33.011(b) . However, alternates are allowed in the jury room as long as they do not vote on the verdict. See Castillo v. State, 319 S.W.3d 966 (Tex. App. – Austin 2010, pet. ref’d). Challenge to the Array Tex.Code.Crim. Proc. Ann. art 35.06 Challenge to array first heard The court shall hear and determine a challenge to the array before interrogating those summoned as to their qualifications. See Esquivel v. State, 595 S.W.2d 516 (Tex. Crim App. 1980). Transcription Voir Dire Object under TRAP 33.1; See Jones v. State, 942 S.W.2d 1, 2 (Tex.Crim.App.1997) (objection required to preserve error stemming from failure to transcribe voir dire proceedings). Juror Withholding Information Object Under TRAP 33.1 and “ describe to the trial court what questions he would ask the juror to establish misconduct or bias.” See Kelly v. State, 60 S.W.3d 299, 304 (Tex.App.-Dallas 2001, no pet.); Cuellar v. State, 943 S.W.2d 487, 490-91 (Tex.App.-Corpus Christi 1996, pet. ref'd). Juror Misconduct -32-
“To preserve error caused by juror misconduct, the defendant must either move for a mistrial or file a motion for new trial supported by affidavits of a juror or other person in a position to know the facts alleging misconduct.” Castillo v. State, 319 S.W.3d 966, 970 (Tex. App.—Austin 2010, pet. ref'd) Alternate Jurors The trial court has discretion to determine whether a juror has become disabled and to seat an alternate juror. Article 36.29 requires that a disabled juror suffer from a “ ‘physical illness, mental condition, or emotional state that would hinder or inhibit the juror from performing his or her duties as a juror,’ or that the juror was suffering from a condition that inhibited him from ‘fully and fairly performing the functions of a juror.’ ” When dismissing a juror, the trial court must not dismiss a juror for reasons related to that juror's evaluation of the sufficiency of the evidence. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012)
Replacing Jurors Before charge is read: “Article 36.29 of the Texas Code of Criminal Procedure contemplates that a jury in a felony case must begin with twelve members. Tex. Code Crim. Proc. Ann. art. 36.29(a) ... If a juror becomes disabled after the jury is impaneled and sworn, article 36.29(a) gives the remaining eleven jurors the power to render the verdict.” Castro v. State, 233 S.W.3d 46, 49 (Tex. App.—Houston [1st Dist.] 2007, no pet.) After Charge is read: Tex. Code Crim. P. art. 36.29 (c) provides for the trial to proceed with 11 jurors if a juror becomes sick and no alternate is available. Disabled Juror Tex. Code Crim. P. art. 36.29 Whether a juror has become “disabled” and cannot continue is a matter of discretion for the court.
Challenges for Cause Tex. Code Crim. P. art. 35.16 Reasons for challenge for cause (a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons: 1. That the juror is not a qualified voter in the state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification; 2. That the juror has been convicted of misdemeanor theft or a felony; 3. That the juror is under indictment or other legal accusation for misdemeanor theft or a felony; 4. That the juror is insane; 5. That the juror has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render the juror unfit for jury service, or that the juror is legally blind and the court in its discretion is not satisfied that the juror is fit for jury service in that particular case; -33-
6. That the juror is a witness in the case; 7. That the juror served on the grand jury which found the indictment; 8. That the juror served on a petit jury in a former trial of the same case; 9. That the juror has a bias or prejudice in favor of or against the defendant; 10. That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in the juror's opinion, the conclusion so established will influence the juror's verdict. If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court. If the juror answers in the negative, the juror shall be further examined as to how the juror's conclusion was formed, and the extent to which it will affect the juror's action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case. If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged; 11. That the juror cannot read or write. No juror shall be impaneled when it appears that the juror is subject to the second, third or fourth grounds of challenge for cause set forth above, although both parties may consent. All other grounds for challenge may be waived by the party or parties in whose favor such grounds of challenge exist. In this subsection "legally blind" shall mean having not more than 20/200 of visual acuity in the better eye with correcting lenses, or visual acuity greater than 20/200 but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees. (b) A challenge for cause may be made by the State for any of the following reasons: 1. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty; 2. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the defendant; and 3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment. (c) A challenge for cause may be made by the defense for any of the following reasons: 1. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the person injured by the commission of the offense, or to any prosecutor in the case; and 2. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor. Tex. Code Crim. P. art. 35.16 Harm Analysis Tex. R. App.Proc. 44.2 Reversible Error in Criminal Cases (a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject -34-
to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. (b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.
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PRESERVATION OF ERROR or Object, Object, Object Issues
Statute/Constitution
Case Law
Helpful Info
PRETRIAL
Texas Code Crim. Proc. art. 28.01
State v. Velasquez, 539 S.W.3d 289 (Tex. Crim. App. 2018)
Must be filed 7 days before pretrial hrg - and must give 10 days to prepare.
Motion to Suppress Statements
Texas Code Crim. Proc. art. 38.22
Dowthitt v. State, 931 S.W.2d 244 (Tex.Crim. App. 1996); Vasquez v. State, 411 S.W.3d 918 (Tex. Crim. App. 2013) Miranda v. Arizona
File pretrial -request hearing with live testimony
U.S. CONT. AMEND. IV TEX. CONST. ART. 1, sec. 9 Racial Profiling
Texas Code Crim. Proc. art. 2.132/38.23 U.S. CONT. AMEND. IV, XIV TEX. CONST. ART. 1, sec. 9, 19
Ex parte Brooks, 97 S.W.3d 639 (Tex. App. – Waco 2002)
File under Texas Code Crim. Proc. art. 38.23 motion to suppress
Statute of Limitations
Texas Code Crim. Proc. art. 12.01 et. seq.
Ex parte Heilman, 456 S.W.3d 159 (Tex. Crim. App. 2015)
File Motion to Dismiss under Texas Code Crim. Proc. art. 27.08; may be raised by pretrial writ of habeas corpus. Can be waived.
Invalid Warrant arrest
Texas Code Crim. Proc. art. 15.01-15.03
State v. Martin, 833 S.W.2d 129 (Tex.Crim. App. 1992); State v. Toone, 872 S.W.2d 750 (Tex.Crim. App. 1994); Franks v. Delaware, 438 U.S. 154 (1978)
File Motion for Franks v. Delaware hearing; run with trial as well;
Invalid Warrant search
Texas Code Crim. Proc. art. 18.01 et. seq. U.S. CONT. AMEND. IV TEX. CONST. ART. 1, sec. 9
Competency to stand trial
Texas Code Crim. Proc. art. 46B et seq.
Texas Code Crim. Proc. art. 46C et. seq. Insanity
U.S. CONT. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Swearingen v. State, 143 S.W.3d 808 (Tex.Crim. App. 2004); Groh v. Ramirez, 540 U.S. 551 (2004); Massey v. State, 933 S.W.2d 141 (Tex. Crim. App. 1996)
File pretrial; can also be relitigated at trial if testimony differs
Turner v. State,422 S.W.3d 676 (Tex. Crim. App. 2013).
File pretrial motion - but “a suggestion of incompetency” is the standard and can be raised by any credible person.
Defreece v. State, 848 S.W.2d 150 (Tex.Crim. App. 1993)
Must file motion 20 days pretrial or at pretrial hearing, if set.
Jurisdiction
Texas Penal Code and Texas Code Crim. Proc. Art. 27.08 TEX. CONST. ART. 5, et seq.
Puente v. State, 71 S.W.3d 340 (Tex. Crim. App. 2002)
File pretrial - jurisdiction can never be waived and is preserved for app. Review w/out objection
Venue
Texas Code Crim. Proc. art. 13.01 et. seq.
Stewart v. State, 44 S.W.3d 582 (Tex.Crim. App. 2001); Schmutz v. State, 440 S.W.3d 29 (Tex. Crim. App. 2014); Wilson v. State, 825 S.W.2d 155 (Tex. App. – Dallas 1992)
By pretrial motion or by proper objection at trial, but it can be waived. Not an element of the offense, so it does not affect sufficiency.
Campbell v. Louisiana, 523 U.S. 392, 398 (1998); Gentry v. State, 770 S.W.2d 780 (Tex.Crim. App. 1988)
Due Process violation/motion to quash
Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990); Teal v. State, 230 S.W.3d 172 (Tex. Crim. App. 2007)
Motions to quash - must be filed pretrial
Roberts v. State, 93 S.W.3d 528 (Tex. App. – Houston [14th Dist.] 2002); Ashcraft v. State, 900 S.W.2d 817, 830 (Tex. App. – Corpus Christi 1995, pet. ref’d).
Make objection on record
Puente v. State, 320 S.W.3d 352, 353 (Tex. Crim. App. 2010) Martinez v. State, 225 S.W.3d 550, 554 (Tex. Crim. App. 2007); Mallett v. State, 28 S.W.3d 603, 606-07 (Tex.App.-Corpus Christi 2000), rev'd on other grounds, 65 S.W.3d 59 (Tex. Crim. App.2001)
object if proper when indictment is amended
Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995)
29.08 - must be in writing & verified/establish specific prejudice on record if denied
U.S. CONT. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Grand Jury
Texas Code Crim. Proc. art. 19.01 et. seq. U.S. CONT. AMEND. V TEX. CONST. ART. 1, sec. 10
Indictment
Texas Code Crim. Proc. art. 21.01 et. seq. U.S. CONT. AMEND. V TEX. CONST. ART. 1, sec. 10
Ten Days to Prepare
Texas Code Crim. Proc. art. 27.11
U.S. CONT. AMEND. XIV TEX. CONST. ART. 1, sec. 19 Amendment to Indictment
Texas Code Crim. Proc. art. 28.10
Misjoinder Election
Texas Code Crim. Proc. art. 21.24 U.S. CONT. AMEND. V, XIV TEX. CONST. ART. 1, sec. 10, 19
Motion for Continuance
Texas Code Crim. Proc. art. 29.01 et. seq. U.S. CONT. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Motion to quash for misjoinder/motion for election at trial
Disqualification of judge
Texas Code Crim. Proc. art. 30.01 U.S. CONT. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Gamez v. State, 737 S.W.2d 315 (Tex. Crim. App. 1987); Metts v. State, 510 S.W.3d 1, 4-5 (Tex. Crim. App. 2016)
Review consanguinity rules in Gov’t Code Chapter 573
Change of Venue
Texas Code Crim. Proc. art. 31.01 et. seq. U.S. CONT. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Brimage v. State, 918 S.W.2d 466, 508 (Tex.Crim. App. 1996); Gonzalez v. State, 222 S.W.3d 446 (Tex. Crim. App. 2007)
Must include def. affidavit + at least two more credible persons that are residents of the county
Special Plea
Texas Code Crim. Proc. art. 27.05 U.S. CONT. AMEND. V TEX. CONST. ART. 1, sec. 14
Ex parte Apolinar, 820 S.W.2d 792 (Tex. Crim. App. 1991)
Decided by jury whether prior jeopardy attaches; 27.06 requires def. verification
Ake/funding
U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 19
Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995); Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)
File motion pretrial ex parte Funding available if counsel is hired upon proper request
Texas Code Crim. Proc. art. 35.07
Pondexter v. State, 942 S.W.2d 577 (Tex.Crim. App. 1996); Garcia v. State, 919 S.W.2d 370, 392 (Tex. Crim. App. 1996)
Must be in writing and supported by affidavit
Green v. State, 934 92 (Tex.Crim. App. 1996); Comeaux v. State, 445 S.W.3d 745, 752 (Tex. Crim. App. 2014); Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007)
To preserve error with respect to a trial court's denial of a challenge for cause, you must: (1) assert a clear and specific challenge for cause, (2) use a peremptory strike on the complained-of veniremember, (3) exhaust your peremptory strikes, (4) request additional peremptory strikes, (5) identify an objectionable juror, and (6) claim that you would have struck the objectionable juror with a peremptory strike if you had had one to use.
TRIAL Challenge to the array
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 15, 19
Erroneous denial of valid challenge for cause
Texas Code Crim. Proc. art. 35.15 U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10, 15
Erroneous grant of a State's challenge for cause will call for reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury.
Jones v. State, 982 S.W.2d 386 (Tex.Crim.App.1998).
Batson, 476 U.S. 79 (1986); J.E.B. 511 U.S. 127 (1994)
Texas Code Crim. Proc. art. 35.261 U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10, 19
Guzman v. State, 85 S.W.3d 242 (Tex.Crim. App. 2002)
Must be done before jury is empaneled, make prima facie showing on record.
Tex. R. Evid. 103
Warner v. State, 969 S.W.2d 1 (Tex.Crim. App. 1998); Tatum v. State, 798 S.W.2d 569 (Tex.Crim. App. 1990); Bonilla v. State, 452 S.W.3d 811, 817 (Tex. Crim. App. 2014); Layton v. State, 280 S.W.3d 235 (Tex. Crim.App. 2009).
Error requires objection/and offer of proof - Must be Specific, Timely, and must reach an adverse ruling to preserve error
Mack v. State, 872 S.W.2d 36 (Tex. App. – Fort Worth 1994); Saldano v. State, 70 S.W.3d 873, 888-90 (Tex. Crim. App. 2002); Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991)
Objections made outside presence of jury and preserved do not require objection in front of jury (not limine!) Must be (1) Timely, (2) Specific and (3) Get a ruling. Running objections preferred. Be careful of not letting evidence in elsewhere.
Evidence Rulings
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Preservation
Tex. R. Evid. 103(a)(1) U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Offer of proof
Tex. R. Evid. 103(a)(2) U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977); Mays v. State, 285 S.W.3d 884, 889-90 (Tex. Crim. App. 2009)
If evidence is excluded, make a bill/take witness on voir dire/make record clear
Admissibility Generally
Tex. R. Evid. 104 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Bartlett v. State, 270 S.W.3d 147 (Tex. Crim. App. 2008); State v. Petropoulos, 346 S.W.3d 346 S.W.3d 525, 529 (Tex. 2011).
standard is typically abuse of discretion; objecting party has duty to notice whether the conditions of admissibility are met
Relevancy Conditioned on Fact
Tex. R. Evid. 104(b)
Nguyen v. State, 21 S.W.3d 609 (Tex. App. – Houston [1st Dist.] 2000); Harrell v. State, 884 S.W.2d 154, 15960 (Tex. Crim. App. 1994)
May be struck if not properly established by later evidencemust object
Hearing of Jury
Tex. R. Evid. 104(c)
Alvarado v. State, 912 S.W.2d 199 (Tex.Crim. App. 1995); Simmons v. U.S., 390 U.S. 377 (1968)
Mandatory hearing outside presence of jury on voluntariness of def.’s statement and when accused testifies on prelim. matter
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Limiting Instruction
Tex. R. Evid. 105(a) U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Offering Evidence for Limited Purpose
Tex. R. Evid. 105(b)
Remainder of or Related Writings
Tex. R. Evid. 106
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19 Rule of Optional Completeness
Tex. R. Evid. 107 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Judicial Notice
Tex. R. Evid. 201 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Relevancy
Tex. R. Evid. 401, 402 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Exclusion of Relevant Evidence
Tex. R. Evid. 403
Character Evidence
Tex. R. Evid. 404(a)
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Kirsch v. State, 306 S.W.3d 738, 747 (Tex. Crim. App. 2010); Beham v. State, 559 S.W.3d 474, 484 (Tex. Crim. App. 2018).
Proper request requires court to instruct jury on limited purpose of evidence
Wright v. State, 776 S.W.2d 763 (Tex. App. – Corpus Christi 1989)
Must make express showing of what your limited evidence would have shown
Reece v. State, 772 S.W.2d 198 (Tex. App. – Houston [14th Dist.] 1989)
Must object or it is waived allows intro of remainder at time other evidence is presented
Walters v. State, 247 S.W.3d 204, 205 (Tex. Crim. App. 2007); Allridge v. State, 762 S.W.2d 146 (Tex.Crim. App. 1988)
“Opening the door” to prevent the jury receiving a false impression
Watts v. State, 99 S.W.3d 604 (Tex. Crim. App. 2003); Kubosh v. State, 241 S.W.3d 60, 64 (Tex. Crim. App. 2007)
Objection required - watch for judicial notice vs. fact issue for jury
Morale v. State, 557 S.W.3d 569, 573 (Tex. 2018);Blackburn v. State, 820 S.W.2d 824, 825–26 (Tex. App. —Waco 1991, pet. ref'd);
Two provisions construed in harmony, make objection, abuse of discretion standard
Montgomery v. State, 810 S.W.2d 372 (Tex.Crim. App. 1991); Wheeler v. State, 67 S.W.3d 879 (Tex.Crim. App. 2002)
Test whether prejudicial effect substantially outweighs probative value under 403
Stitt v. State, 102 S.W.3d 845 (Tex. App, – Texarkana 2003); Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997)
A pertinent character trait is one that relates to a trait involved in the offense charged or a defense raised
Character Evidence
Tex. R. Evid. 404(b) U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Method of Proving Character
Tex. R. Evid. 405 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Habit: Routine Practice
Tex. R. Evid. 406 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Inadmissibility of Pleas & Plea Discussions
Tex. R. Evid. 410
Evidence of Previous Sexual Conduct in Criminal Case
Tex. R. Evid. 412
Husband-Wife Privilege
Tex. R. Evid. 504
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19 Competency of Juror as Witness
Tex. R. Evid. 606 U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004); Page v. State, 137 S.W.3d 75 (Tex. Crim. App. 2004)
Request notice pretrial from state for 404(b); 609; and Texas Code Crim. Proc. art. 37.07 evidence – do not file motion/request triggers notice requirements.
Turner v. State, 805 S.W.2d 423 (Tex. Crim. App. 1991); Thomas v. State, 669 S.W.2d 420, 423 (Tex. App.—Houston [1st Dist.] 1984, pet. ref'd)
Reputation - “Have you heard?” Opinion - “Do you know?” - although really no distinction within the rule
U.S. v. Angwin, 271 F.3d 786 (9th Cir. 2001); Miller v. State, 882 S.W.2d 936 (Tex. App. – Beaumont 1994)
Examples of admissible habit and routine practice admissible.
Abdel-Sater v. State, 852 S.W.2d 671 (Tex. App. – Houston [14th Dist.] 1993); Jenkins v. State, 493 S.W.3d 583, 607 (Tex. Crim. App. 2016)
While inadmissible - be wary of evidence coming in other way; rule is silent on whether D can offer the evidence.
Boyle v. State, 820 S.W.2d 122 (Tex. Crim. App. 1989) overruled on other grounds, Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990); Todd v. State, 242 S.W.3d 126, 129 (Tex. App.—Texarkana 2007, pet. ref'd)
Preserve through bill any excluded evidence to establish why it relates to any of the exceptions under 412(b)(2)(a)-(e).
Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998)
Many exceptions; common law marriage applies
Colyer v. State, 428 S.W.3d 117, 123–24 (Tex. Crim. App. 2014).
Juror misconduct almost impossible to establish - try through evidence from one other than juror.(outside influence)
Who May Impeach
Tex. R. Evid. 607 U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Evidence of Character & Conduct of a Witness
Tex. R. Evid. 608
Impeachment by Evidence of Conviction of Crime
Tex. R Evid. 609
Writing Used to Refresh Memory
Tex. R. Evid. 612
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19 Prior Statements of Witnesses
Tex. R. Evid. 613(a) U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Impeachment & Support
Tex. R. Evid. 613(b) U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Opinion Testimony by Lay Witness
Tex. R. Evid. 701
Testimony by Experts
Tex. R. Evid. 702
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Hearsay
Tex. R. Evid. 801, 802 U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
Present Sense Impression
Tex. R. Evid. 803(1) U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
Hughes v. State, 4 S.W.3d 1 (Tex. Crim. App. 1999); Ramirez v. State, 987 S.W.2d 938 (Tex. App. – Austin 1999)
Object under 403 if State uses impeachment evidence primarily to get otherwise inadmissible evidence before jury.
Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997)
Witness called to impeach truthfulness of another witness - cannot be used for general moral character - no specific instances of lying allowed
Lopez v. State, 253 S.W.3d 680, 682 (Tex. Crim. App. 2008); James v. State, 102 S.W.23d 162 (Tex. App. – Fort Worth 2003)
Watch for opening of door/ allowing in crimes not admissible under 609
Powell v. State, 5 S.W.3d 369 (Tex. App. – Texarkana 1999)
Timely request
Goodman v. State, 665 S.W.2d 788 (Tex. Crim. App. 1984)
Request jury be instructed evidence is for impeachment purposes only
Gannaway v. State, 823 S.W.2d 675 (Tex. App. – Dallas 1991)
Common forms of impeachment include racial prejudice, family relationship, personal friendship or enmity, prior “bad blood”, etc.
Osbourn v. State, 92 S.W.2d 531 (Tex. Crim. App. 2002); Hughes v. State, 787 S.W.2d 193 (Tex. App. – Corpus Christi 1990)
The opinion of a witness is not admissible to interpret the “meaning” of the acts, conduct, or language
Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006); Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000)
To get yours in - evidence must be sufficiently reliable and relevant; to keep out reverse
Graham v. State, 643 S.W.2d 920 (Tex. Crim. App. 1981
Timely objection/remember to include constitutional violation of confrontation!
Rabbani v. State, 847 S.W.2d 555 (Tex. Crim. App. 1992)
Statement must be made, if not simultaneous, immediately thereafter
Excited Utterance
Tex. R. Evid. 803(2) U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
Then existing mental, emotional or physical condition
Tex. R. Evid. 803(3)
Statement for purpose of medical diagnosis or treatment
Tex. R. Evid. 803(4)
Recorded Recollection
Tex. R. Evid. 803(5)
U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
Records of Regularly conducted activity
Tex. R. Evid. 803(6)
Absence of entry in records
Tex. R. Evid. 803(7)
U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10 Public Records and reports
Tex. R. Evid. 803(8) U.S. CONST. AMEND. VI TEX. CONST. ART. 1, sec. 10
Reputation Evidence
Tex. R. Evid. 803(19) U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Statements against interest
Tex. R. Evid. 803(24) U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
McCarty v. State, 257 S.W.3d 238, 238 (Tex. Crim. App. 2008); Bondurant v. State, 956 S.W.2d 762 (Tex. App. – Fort Worth 1997
Three requirements statement must have 1) occurred; 2) been a spontaneous reaction to the event; and 3) must relate to the event
Dorsey v. State, 24 S.W.3d 921 (Tex. App. – Beaumont 2000)
Must be statement of “present” bodily condition
Taylor v. State, 268 S.W.3d 571, 580 (Tex. Crim. App. 2008)
Two part test - statement made for purpose of receiving treatment and content must be reasonably relied upon by a physician
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998)
Four prerequisites - 1) W lacks some degree of memory; 2) statement must have been made or adopted by W; 3) recollection must have correctly reflected prior knowledge; must have been recorded when fresh
Johnston v. State, 959 S.W.2d 230 (Tex. App. – Dallas 1997); Garcia v. State, 126 S.W.3d 921, 967 (Tex. Crim. App. 2004)
Four foundation requirements - 1) regularly kept; 2) personal knowledge; 3)made close in time to event 4) foundation laid by custodian of records
Young v. State, 891 S.W.2d 945 (Tex. Crim. App. 1994)
Foundation similar to 803(6) - proponent must show record would have been there had it existed
Perry v. State, 957 S.W.2d 894 (Tex. App. – Texarkana 1997)
Law enforcement exception possible reliability issues
Jones v. State, 950 S.W.2d 386 (Tex. App. – Fort Worth 1997)
Must have personal knowledge of family history
Lilly v. Virginia, 527 U.S. 116 (1999); Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999)
Statement must be inculpatory with corroborating circumstances
Wall v. State, 184 S.W.3d 730, 734 (Tex. Crim. App. 2006); Caldwell v. State, 916 SW.2d 674 (Tex. App. – Texarkana 1996); Reyes v. State, 845 S.W.2d 328 (Tex. App. – El Paso 1992)
Unavailability of W is prereq/but that is not the exception - merely the first inquiry
Tex. R. Evid. 804(b)(1) U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10
Coffin v. State, 885 S.W.2d 140 (Tex. Crim. App. 1994)
Key is the prior “opportunity to develop the testimony.”
Tex. R. Evid. 804(b)(2)
Gardner v. State,, 306 S.W.3d 274 (Tex. Crim. App. 2009)
Three requirements: 1) declarant unavailable; 2) declarant must have believed he was dying when making statement; 3) statement must concern cause or circumstances of impending death
Philpot v. State, 897 S.W.2d 848 (Tex. App. – Dallas 1995)
To admit multiple level hearsay, each statement must be independently admissible
Angleton v. State, 971 S.W.2d 65 (Tex. Crim. App. 1985); Maldonado v. State, 998 S.W.2d 239 (Tex. Crim. App. 1999)
Condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims
Reed v. State, 811 S.W.2d 582 (Tex. Crim. App. 1991)
Authentication allowed under either 901 or 902.
Ali v. State, 26 S.W.3d 82 (Tex. App. — Waco 2000)
Not applied rigidly/abuse of discretion standard
Menefee v. State, 928 S.W.2d 274 (Tex. App. – Tyler 1996)
Objection must assert that the copy or reproduction is inadequate
Coleman v. State, 760 S.W.2d 356 (Tex. App. – Houston [1st Dist. 1988)
If proponent has original, should be offered upon proper objection
Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998)
Must object in writing to “commission and omission” to preserve error or egregious harm standard used under Almanza.
Hearsay Exceptions/Decla rant Unavailable
Tex. R. Evid. 804
Former Testimony Dying declaration
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10
Hearsay within hearsay
Tex. R. Evid. 805 U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Requirement of Authentication or Identification
Tex. R. Evid. 901
SelfAuthentication
Tex. R. Evid. 902
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19 “Best Evidence Rule”
Tex. R. Evid. 1001 et. seq. U.S. CONST. AMEND. XIV TEX. CONST. ART. 1, sec. 19
Requirement of Originals
Tex. R. Evid. 1002 U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Admissibility of other evidence of contents
Tex. R. Evid. 1004
Jury charge error
Texas Code Crim. Proc. art. 36.14
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
Requested Special Charges
Texas Code Crim. Proc. art. 36.15
Vasquez v. State, 919 S.W.2d 433 (Tex. Crim. App. 1996)
Written request with ruling by trial court preserves error.
DeGraff v. State, 962 S.W.2d 596 (Tex. Crim. App. 1998)
Must be a disagreement before testimony read back
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19 Jury may have witness reexamined or testimony read
Texas Code Crim. Proc. art. 36.28
© May 2021
Jani J. Maselli
U.S. CONST. AMEND. VI, XIV TEX. CONST. ART. 1, sec. 10, 19
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THE TEXAS CONSTITUTION ARTICLE 1. BILL OF RIGHTS That the general, great and essential principles of liberty and free government may be recognized and established, we declare: Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States. Sec. 2. INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient. Sec. 3. EQUAL RIGHTS. All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services. Sec. 3a. EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative. (Added Nov. 7, 1972.)
Sec. 4. RELIGIOUS TESTS. No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being. Sec. 5. WITNESSES NOT DISQUALIFIED BY RELIGIOUS BELIEFS; OATHS AND AFFIRMATIONS. No person shall be disqualified to give evidence in any of the Courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury. Sec. 6. FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship. Sec. 7. APPROPRIATIONS FOR SECTARIAN PURPOSES. No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes. Sec. 8. FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases. Sec. 9. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.
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Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger. (Amended Nov. 5, 1918.)
Sec. 11. BAIL. All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law. Sec. 11a. MULTIPLE CONVICTIONS; DENIAL OF BAIL. (a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals. (b) In this section: (1) "Violent offense" means: (A) murder; (B) aggravated assault, if the accused used or exhibited a deadly weapon during the commission of the assault; (C) aggravated kidnapping; or (D) aggravated robbery. (2) "Sexual offense" means: (A) aggravated sexual assault; (B) sexual assault; or (C) indecency with a child. (Added Nov. 6, 1956; amended Nov. 8, 1977; Subsec. (a) amended and (b) added Nov. 2, 1993.)
Sec. 11b. VIOLATION OF CONDITION OF RELEASE PENDING TRIAL; DENIAL OF BAIL. Any person who is accused in this state of a felony or an offense involving family violence, who is released on bail pending trial, and whose bail is subsequently revoked or forfeited for a violation of a condition of release may be denied bail pending trial if a judge or magistrate in this state determines by a preponderance of the evidence at a subsequent hearing that the person violated a condition of release related to the safety of a victim of the alleged offense or to the safety of the community. (Added Nov. 8, 2005; amended Nov. 6, 2007.)
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Sec. 11c. VIOLATION OF AN ORDER FOR EMERGENCY PROTECTION INVOLVING FAMILY VIOLENCE. The legislature by general law may provide that any person who violates an order for emergency protection issued by a judge or magistrate after an arrest for an offense involving family violence or who violates an active protective order rendered by a court in a family violence case, including a temporary ex parte order that has been served on the person, or who engages in conduct that constitutes an offense involving the violation of an order described by this section may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate in this state determines by a preponderance of the evidence that the person violated the order or engaged in the conduct constituting the offense. (Added Nov. 6, 2007.)
Sec. 12. HABEAS CORPUS. The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual. Sec. 13. EXCESSIVE BAIL OR FINES; CRUEL AND UNUSUAL PUNISHMENT; REMEDY BY DUE COURSE OF LAW. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law. Sec. 14. DOUBLE JEOPARDY. No person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction. Sec. 15. RIGHT OF TRIAL BY JURY. The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. Provided, that the Legislature may provide for the temporary commitment, for observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of the County Court without the necessity of a trial by jury. (Amended Aug. 24, 1935.)
Sec. 15-a. COMMITMENT OF PERSONS OF UNSOUND MIND. No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases. Such laws may provide for a waiver of trial by jury, in cases where the person under inquiry has not been charged with the commission of a criminal offense, by the concurrence of the person under inquiry, or his next of kin, and an attorney ad litem appointed by a judge of either the County or Probate Court of the county where the trial is being held, and shall provide for a method of service of notice of such trial upon the person under inquiry and of his right to demand a trial by jury. (Added Nov. 6, 1956.)
Sec. 16. BILLS OF ATTAINDER; EX POST FACTO OR RETROACTIVE LAWS; IMPAIRING OBLIGATION OF CONTRACTS. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made. Sec. 17. TAKING, DAMAGING, OR DESTROYING PROPERTY FOR PUBLIC USE; SPECIAL PRIVILEGES AND IMMUNITIES; CONTROL OF PRIVILEGES AND FRANCHISES. (a) No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for: (1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by: (A) the State, a political subdivision of the State, or the public at large; or (B) an entity granted the power of eminent domain under law; or (2) the elimination of urban blight on a particular parcel of property.
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(b) In this section, "public use" does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues. (c) On or after January 1, 2010, the legislature may enact a general, local, or special law granting the power of eminent domain to an entity only on a two-thirds vote of all the members elected to each house. (d) When a person's property is taken under Subsection (a) of this section, except for the use of the State, compensation as described by Subsection (a) shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof. (Amended Nov. 3, 2009.)
Sec. 18. IMPRISONMENT FOR DEBT. No person shall ever be imprisoned for debt. Sec. 19. DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land. Sec. 20. OUTLAWRY OR TRANSPORTATION FOR OFFENSE. No citizen shall be outlawed. No person shall be transported out of the State for any offense committed within the same. This section does not prohibit an agreement with another state providing for the confinement of inmates of this State in the penal or correctional facilities of that state. (Amended Nov. 5, 1985.)
Sec. 21. CORRUPTION OF BLOOD; FORFEITURE; SUICIDES. No conviction shall work corruption of blood, or forfeiture of estate, and the estates of those who destroy their own lives shall descend or vest as in case of natural death. Sec. 22. TREASON. Treason against the State shall consist only in levying war against it, or adhering to its enemies, giving them aid and comfort; and no person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or on confession in open court. Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime. Sec. 24. MILITARY SUBORDINATE TO CIVIL AUTHORITY. The military shall at all times be subordinate to the civil authority. Sec. 25. QUARTERING SOLDIERS IN HOUSES. No soldier shall in time of peace be quartered in the house of any citizen without the consent of the owner, nor in time of war but in a manner prescribed by law. Sec. 26. PERPETUITIES AND MONOPOLIES; PRIMOGENITURE OR ENTAILMENTS. Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State. Sec. 27. RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance. Sec. 28. SUSPENSION OF LAWS. No power of suspending laws in this State shall be exercised except by the Legislature. Sec. 29. PROVISIONS OF BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT; TO FOREVER REMAIN INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.
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Sec. 30. RIGHTS OF CRIME VICTIMS. (a) A crime victim has the following rights: (1) the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process; and (2) the right to be reasonably protected from the accused throughout the criminal justice process. (b) On the request of a crime victim, the crime victim has the following rights: (1) the right to notification of court proceedings; (2) the right to be present at all public court proceedings related to the offense, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial; (3) the right to confer with a representative of the prosecutor's office; (4) the right to restitution; and (5) the right to information about the conviction, sentence, imprisonment, and release of the accused. (c) The legislature may enact laws to define the term "victim" and to enforce these and other rights of crime victims. (d) The state, through its prosecuting attorney, has the right to enforce the rights of crime victims. (e) The legislature may enact laws to provide that a judge, attorney for the state, peace officer, or law enforcement agency is not liable for a failure or inability to provide a right enumerated in this section. The failure or inability of any person to provide a right or service enumerated in this section may not be used by a defendant in a criminal case as a ground for appeal or post-conviction writ of habeas corpus. A victim or guardian or legal representative of a victim has standing to enforce the rights enumerated in this section but does not have standing to participate as a party in a criminal proceeding or to contest the disposition of any charge. (Added Nov. 7, 1989.)
Sec. 31. COMPENSATION TO VICTIMS OF CRIME FUND; COMPENSATION TO VICTIMS OF CRIME AUXILIARY FUND; USE OF FUND MONEY. (a) The compensation to victims of crime fund created by general law and the compensation to victims of crime auxiliary fund created by general law are each a separate dedicated account in the general revenue fund. (b) Except as provided by Subsection (c) of this section and subject to legislative appropriation, money deposited to the credit of the compensation to victims of crime fund or the compensation to victims of crime auxiliary fund from any source may be expended as provided by law only for delivering or funding victim-related compensation, services, or assistance. (c) The legislature may provide by law that money in the compensation to victims of crime fund or in the compensation to victims of crime auxiliary fund may be expended for the purpose of assisting victims of episodes of mass violence if other money appropriated for emergency assistance is depleted. (Added Nov. 4, 1997.)
Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman. (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage. (Added Nov. 8, 2005.)
Sec. 33. ACCESS AND USE OF PUBLIC BEACHES. (a) In this section, "public beach" means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law. (b) The public, individually and collectively, has an unrestricted right to use and a right of ingress to and egress from a public beach. The right granted by this subsection is dedicated as a permanent easement in favor of the public. (c) The legislature may enact laws to protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments. (d) This section does not create a private right of enforcement.
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(Added Nov. 3, 2009.)
Sec. 34. RIGHT TO HUNT, FISH, AND HARVEST WILDLIFE. (a) The people have the right to hunt, fish, and harvest wildlife, including by the use of traditional methods, subject to laws or regulations to conserve and manage wildlife and preserve the future of hunting and fishing. (b) Hunting and fishing are preferred methods of managing and controlling wildlife. (c) This section does not affect any provision of law relating to trespass, property rights, or eminent domain. (d) This section does not affect the power of the legislature to authorize a municipality to regulate the discharge of a weapon in a populated area in the interest of public safety. (Added Nov. 3, 2015.)
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The Curious Case of Benjamin Button by Eric Roth, screenplay It's never too late, or in my case too early, to be whoever you want to be. There's no time limit. Start whenever you want. You can change or stay the same. There are no rules to this thing. We can make the best or the worst of it. I hope you make the best of it. I hope you see things that startle you. I hope you feel things you never felt before. I hope you meet people who have a different point of view. I hope you live a life you're proud of, and if you're not, I hope you have the courage to start all over again.
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U.S. Constitution - portion of Bill of Rights Amendment 1 Freedom of Religion, Speech, and the Press Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances. Amendment 2 The Right to Bear Arms A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Amendment 3 The Housing of Soldiers No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law. Amendment 4 Protection from Unreasonable Searches and Seizures The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Amendment 5 Protection of Rights to Life, Liberty, and Property No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation. Amendment 6 Rights of Accused Persons in Criminal Cases In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. Amendment 8 Excessive Bail, Fines, and Punishments Forbidden Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment 14 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
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Article 11.07 Writs of Habeas Corpus
Michael S. Falkenberg Assistant Public Defender Harris County Public Defender’s Office Michael.Falkenberg@pdo.hctx.net 713-274-6700
Contents I. Brief Introduction ............................................................................................................................................. 1 II. Habeas Corpus Basics & Modern Post-Conviction Habeas ............................................................................ 1 III. Texas Habeas Corpus Jurisdiction & Writ Basics.......................................................................................... 2 A. Constitutional Jurisdiction ........................................................................................................................... 2 B. Statutory Jurisdiction ................................................................................................................................... 2 C. Terminology................................................................................................................................................. 2 D. The Importance of Pleading......................................................................................................................... 3 IV. Article 11.07 Habeas Corpus Basics .............................................................................................................. 3 A. “Final felony conviction” ............................................................................................................................ 4 i. Final ........................................................................................................................................................... 4 ii. Felony ....................................................................................................................................................... 4 iii. Conviction ............................................................................................................................................... 4 B. Restraint ....................................................................................................................................................... 5 V. Article 11.07 Procedure................................................................................................................................... 6 A. County Procedure and Deadlines ................................................................................................................. 6 i. Filing .......................................................................................................................................................... 6 ii. The Form .................................................................................................................................................. 6 iii. Timelines in Convicting Court ................................................................................................................ 8 iv. Supplements and Amendments ................................................................................................................ 8 v. Recusal of the Habeas Judge ..................................................................................................................... 9 vi. Habeas Bond ............................................................................................................................................ 9 vii. Appointment of Counsel ......................................................................................................................... 9 viii. Evidence Gathering and Hearings ....................................................................................................... 10 ix. Findings of Fact ..................................................................................................................................... 10 x. Objections to Findings ............................................................................................................................ 11 xi. Forwarding the Record .......................................................................................................................... 11 xii. General Tips.......................................................................................................................................... 11 B. Court of Criminal Appeals Review & Procedure ...................................................................................... 12 i. General CCA Process .............................................................................................................................. 12 ii. Pleading standard .................................................................................................................................... 12 iii. Review of Findings of Fact ................................................................................................................... 12 iv. Remands................................................................................................................................................. 13 v. CCA Dispositions ................................................................................................................................... 13 vi. Rehearing/Rehearing on the Court’s Own Motion ................................................................................ 13 VI. Subsequent Writs and “One Bite at the Apple” ........................................................................................... 14 A. “One Bite at the Apple” ............................................................................................................................. 14 B. Triggering the “Section 4 bar” ................................................................................................................... 14 i. “Final Disposition” .................................................................................................................................. 15 ii. Challenge the Conviction ....................................................................................................................... 15 iii. Deny or Dismiss .................................................................................................................................... 15 C. New Facts or Law (a)(1) ............................................................................................................................ 15 i. New Factual Basis ................................................................................................................................... 16 ii. New Legal Basis ..................................................................................................................................... 16 D. Constitutional Violations (a)(2) (But for violation of the Constitution, no rational juror . . .) .................. 17 VII. Legal Claims ............................................................................................................................................... 18 A. Cognizability Generally ............................................................................................................................. 18 B. Cognizable claims ...................................................................................................................................... 20 i. Ineffective Assistance of Counsel and Strickland v. Washington ........................................................... 20 ii. Out of Time Appeals and PDRs ............................................................................................................. 23 iii. Suppression of Exculpatory Evidence ................................................................................................... 25 iv. False Evidence ....................................................................................................................................... 26 v. Article 11.073 ......................................................................................................................................... 27 vi. Actual Innocence ................................................................................................................................... 27 vii. Involuntary Plea .................................................................................................................................... 31 viii. Illegal Sentence.................................................................................................................................... 32
ix. Double Jeopardy .................................................................................................................................... 33 x. Unconstitutional Statute .......................................................................................................................... 33 xi. Indictment and Jury Charge Error.......................................................................................................... 33 xii. Time Credits ......................................................................................................................................... 34 xiii. Parole & Mandatory Supervision ........................................................................................................ 36 VIII. Delay, Laches, & Waiver of Habeas ......................................................................................................... 38 A. Delay .......................................................................................................................................................... 38 B. Laches ........................................................................................................................................................ 38 C. Waiver of Habeas Corpus .......................................................................................................................... 39 IX. New Extraordinary Writ Opinions from 2020–2022 (not otherwise mentioned in the paper) .................... 39 X. Pending Issues Filed & Set for Opinions ...................................................................................................... 41 XI. Conclusion and Contact Information ........................................................................................................... 41
ARTICLE 11.07 WRITS OF HABEAS CORPUS I. Brief Introduction This paper is intended to give lawyers, judges, and prisoners an overview of the procedures and law unique to Texas felony post-conviction writ of habeas corpus litigation. It first covers procedural matters and common pitfalls, and then moves into the basics of the substantive law required for the major claims seen in this arena. It is not exhaustive or comprehensive, particularly in its treatment of the substantive law governing the resolution of habeas corpus claims. However, it does contain the great majority of the elemental law in play in most cases. One curiosity of habeas corpus practice is that the parties must know a wide range of law to investigate and accurately respond to writ applications, but the eventual resolution of individual claims doesn’t usually depend on extensive legal analysis and argument. Decisions on the merits of writ claims are ultimately driven by the facts from the initial investigation and trial and the facts discovered after post-trial investigations. The overarching message of this paper and the accompanying talk is that the parties must know the facts of the case and should focus their arguments on those facts. Before I go further, I’d like to recognize the invaluable assistance I’ve received in maintaining this paper from Lynda Charleson and Dannet Bock-Barnes, former colleagues at the Court of Criminal Appeals. II. Habeas Corpus Basics & Modern Post-Conviction Habeas “The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. It is an order issued by a court or judge of competent jurisdiction, directed to any one having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is being held in custody or restraint.” Tex. Code Crim. Proc. art. 11.01. Despite the straightforward statutory definition, there is something mysterious about habeas corpus— it is perceived as a cornerstone of our common law legal culture, but few lawyers really understand it. As reflected by our statutory definition, habeas corpus has historically been the prisoner’s tool to challenge the legality of restraint. See Jones v. Cunningham, 371 U.S. 236, 238–40 (1963) (providing very brief sketch of historical English practice). Through the years, the “Great Writ” has been modified in many ways and, despite the “old school” statutory definition, serves several different functions in Texas criminal practice. These different uses for the writ combined with Texas’s complicated court system create a bewildering maze for practitioners to navigate. This paper focuses on one aspect of Texas habeas corpus practice: post-conviction habeas corpus litigation in felony cases (other than those resulting in death sentences). In this setting, habeas corpus becomes available after direct appeals are exhausted. Post-conviction habeas corpus is used to challenge the validity of a conviction or sentence, usually on constitutional grounds. It is a collateral attack on the conviction, a new lawsuit, based on claims and evidence from outside of the trial and appellate records that must typically relate to jurisdiction or constitutional issues. Since post-conviction habeas follows exhaustion of appeals, it generally involves claims from outside the four corners of the trial record. The Court of Criminal Appeals has decided that post-conviction habeas is not available to relitigate claims that have already been rejected, or to litigate claims that could have been litigated in the trial and appellate courts. Post-conviction habeas corpus proceedings, as they relate to final felony convictions, are governed by Article 11.07 of the Code of Criminal Procedure, so they are often referred to as “11.07 writs,” or just as “11.07.”
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III. Texas Habeas Corpus Jurisdiction & Writ Basics Understanding 11.07 writs requires a grasp of the constitutional and statutory scheme governing all habeas corpus writs in Texas criminal cases. A. Constitutional Jurisdiction Before providing habeas corpus jurisdiction, the Texas Constitution’s Bill of Rights provides that “[t]he writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.” Tex. Const. art. I, § 12. The Texas Constitution grants the Court of Criminal Appeals jurisdiction to make final determinations in all criminal cases in the state. Tex. Const. art. V, § 5(a). The Constitution also grants to the Court, and its judges, the power to issue the writ of habeas corpus, “subject to such regulations as may be prescribed by law.” Tex. Const. art. V, § 5(c). Unlike the Constitution’s grants of other extraordinary writ jurisdiction to the Court of Criminal Appeals (mandamus, prohibition, etc.), the Court’s habeas corpus jurisdiction is not limited to “criminal law matters.” Id. The Texas Supreme Court and its Justices also have the “power to issue writs of habeas corpus, as may be prescribed by law …” Tex. Const. art. V, § 3(a). B. Statutory Jurisdiction Most of what the legislature has “prescribed by law” to effectuate the habeas remedy is found in Chapter 11 of the Code of Criminal Procedure. Article 11.05 provides statutory authority for the “Court of Criminal Appeals, the District Courts, the County Courts, or any Judge of said Courts” to “issue” the writ of habeas corpus, and adds “it is their duty, upon proper motion, to grant the writ under the rules prescribed by law.” Tex. Code Crim. Proc. art. 11.05. The Code then provides specific frameworks for uses of the writ in different situations: felony convictions resulting in death sentences (Article 11.071), any case (felony or misdemeanor) with a community supervision order (Article 11.072), and pre-conviction situations where the person is charged with a felony (Article 11.08) or a misdemeanor (Article 11.09). The Code lays out procedural rules and practices unique to each situation, apart from the pre-trial writs filed under Articles 11.08 and 11.09. You must know the status of the conviction being challenged and the appropriate article to file under. The substantive law of post-conviction habeas corpus is mostly developed in the Article 11.07 arena, but the principles from those cases generally apply in all post-conviction situations. C. Terminology As with most legal matters, habeas practitioners and litigants must understand certain magic words or terms of art. There aren’t many of them and most are defined in the Code of Criminal Procedure or the Rules of Appellate Procedure. Applicant: The applicant “is the person for whose relief the writ is asked.” Tex. Code Crim. Proc. art. 11.13; Tex. R. App. P. 3.2.1
In the past, courts have referred to the applicant as the “relator,” a term now more at home in the world of all other extraordinary writs. Ex parte Clear, 573 S.W.2d 224 (Tex. Crim. App. 1978); TEX. R. APP. P. 3.1(f). In the rare original writ proceeding in the appellate courts or the Texas Supreme Court, the person seeking relief is a relator. TEX. R. APP. P. 52.2. 1
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Petitioner: The petitioner is the person who seeks habeas relief on behalf of an applicant. In 11.07 habeas corpus, the petitioner does not have to be a licensed attorney. Tex. R. App. P. Appendix E (11.07 form). Petition or Application?: Is the document filed to obtain or invoke the writ a petition or an application? Articles 11.07, 11.071, and 11.072 (relating to felony writs, death penalty writs, and community supervision writs, respectively) refer to an “application,” as do the Rules of Appellate Procedure. Tex. R. App. P. 3.1(d). But other parts of the Code of Criminal Procedure use the word “petition.” Tex. Code Crim. Proc. art. 11.14. The best you can do is to refer to the document as an “application” if it is filed under 11.07, 11.071, or 11.072, and a “petition” if it is filed under other authority. Issuing, Granting, and Returning the Writ: These words are not particularly problematic in postconviction habeas litigation, but the practitioner should be familiar with them in other habeas contexts. In other situations, habeas corpus relief is a two-step process. The judge first decides whether to “issue” the writ, which means that the judge will consider the writ on its merits. Language about “granting the writ” does not necessarily refer to a grant of ultimate relief, it could just mean that the judge has decided to hear the merits of the writ. To complicate matters further, the judge who decides to issue the writ may not be the judge deciding the merits—that depends upon where the writ “returns” or where it is “returnable.” It is possible a judge from another jurisdiction could decide that the writ should be heard (issue), but it will generally be returnable (and decided) in the county where the offense allegedly occurred. Tex. Code Crim. Proc. art. 11.10. These are not concerns in post-conviction habeas corpus situations because the legislature has decided that in these cases the writ should issue by operation of law. This means that courts do not have discretion to decide whether to hear post-conviction writs on the merits. However, the issue is critically important in other contexts, as a judge’s refusal to issue the writ is not typically appealable. D. The Importance of Pleading In all extraordinary writ situations, pleading is crucial to the proponent’s success. Habeas corpus is generally governed by the preponderance burden of proof2 and the applicant must prove by a preponderance of the evidence the facts showing entitlement to relief. Ex parte Lalonde, 570 S.W.3d 716, 725 (Tex. Crim. App. 2019). The most important Texas habeas corpus case is not one setting forth a constitutional right, but one governing pleading. It stands for the simple proposition that the applicant must allege facts, which, if true, could entitle him or her to relief. Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985). The applicant’s factual allegations must embrace everything necessary to prove the claim. This is a chronic deficiency in Texas habeas applications filed by pro-se applicants and licensed lawyers alike. As will be discussed in greater detail below, successful habeas claims typically demonstrate that an error occurred and that the applicant suffered harm. The proponent of relief must present a complete factual narrative establishing both propositions. IV. Article 11.07 Habeas Corpus Basics Litigation of an Article 11.07 habeas corpus application involves a bifurcated procedure beginning in the court of conviction and ending in the Court of Criminal Appeals. This procedure allows the local parties to the conviction to undertake fact finding and make recommendations, and for the Court of Criminal Appeals to review the record and have the last word. In this procedural posture, the convicting court is often
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As will be discussed, actual innocence claims carry a “clear and convincing” burden.
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referred to as the “habeas court,” and the judge of that court referred to as the “habeas judge.” A. “Final felony conviction” Writ applications filed under authority of Article 11.07 must attack final felony convictions. The Court of Criminal Appeals will dismiss writs that do not satisfy those three requirements. i. Final Whether the conviction is “final” is always an issue for recent convictions. If the sentence is probated, it is not a final conviction, and different procedures apply. Tex. Code Crim. Proc. art. 11.072. Pointing to the statutory “final felony conviction” qualifier, the Court held that it does not have jurisdiction to consider an application for habeas corpus under Article 11.07 until the felony judgment under attack becomes final. Ex parte Johnson, 12 S.W.3d 472, 473 (Tex. Crim. App. 2000). If a writ application is filed shortly after a conviction and there is no suggestion in the writ record that notice of appeal was filed, then the Court generally presumes that the conviction is final. If the case is pending on direct appeal or discretionary review, the conviction is not final and will not be final until the appellate mandate issues. Jones v. State, 711 S.W.2d 634, 636 (Tex. Crim. App. 1986). When the 11.07 application is filed on the same day mandate issues, if possible, the Court will look to the time on the file stamps to see whether the appellate mandate issued before the writ was filed. Presumably, if the writ was filed one minute before the mandate issued, the Court would dismiss the writ for want of jurisdiction. However, “absent evidence to the contrary, a direct-appeal mandate is presumed to have issued at 9:00 a.m. on the date it issues.” Ex parte Hastings, 366 S.W.3d 199, 201 (Tex. Crim. App. 2012). The Court introduced the concept of the “dormant mandate” in a case where the Court had previously granted the applicant the opportunity to pursue an out-of-time discretionary review. The initial appellate mandate was never recalled, and after the Court refused the out-of-time petition for discretionary review (PDR), no other mandate issued. The Court held that when it issued mandate on the applicant’s 11.07 application that led to the out-of-time PDR, it notified the appellate court that the appellate process was reinstated which did not render the original mandate ineffective, but held it “temporarily dormant” until the Court could dispose of the out-of-time appeal. Ex parte Webb, 270 S.W.3d 108, 111 (Tex. Crim. App. 2008). Therefore, the applicant’s second 11.07 application, filed almost one year after the Court refused PDR, but without issuance of any further mandate, challenged a final conviction. Id. ii. Felony The “felony” qualifier is more straightforward. If the case is a misdemeanor, the party must file a different writ. Tex. Code Crim. Proc. art. 11.09. Article 11.07 is used for state jail felonies, state jail felonies punished as misdemeanors under Section 12.44 of the Penal Code,3 felonies wrongly punished as misdemeanors,4 and first, second, and third-degree felonies as well as capital felonies when the defendant received a sentence other than death. See Ex parte Palmberg, 491 S.W.3d 804, 805 n.1 (Tex. Crim. App. 2016) (reading Sparks and Penal Code Section 12.44(a) together for the proposition that a state jail conviction punished as if it were a Class A misdemeanor is subject to attack under Article 11.07). iii. Conviction Finally, “conviction” ties into “finality.” If the case is an unadjudicated deferred adjudication or an unrevoked community supervision, there is no conviction to challenge and the party must file a writ under authority of a different article in Chapter 11. The same is true if charges are pending. Similarly, 3
Ex parte Oranday-Garcia, 410 S.W.3d 865, 866 n.2 (Tex. Crim. App. 2013). Ex parte Sparks, 206 S.W.3d 680 (Tex. Crim. App. 2006) stated the issue as “whether post-conviction habeas corpus is available when a felony conviction was rendered on a guilty plea when in fact the offense was a misdemeanor.” To be clear, the applicant was challenging an 8-year sentence, so the issue was less whether the Court had jurisdiction under Article 11.07 and more whether there was a remedy for the claim. 4
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juvenile adjudications, even when the person is transferred to prison in TDCJ, are not convictions for crimes and Article 11.07 provides no remedy. Ex parte Valle, 104 S.W.3d 888, 889—90 (Tex. Crim. App. 2003). Because a Code of Criminal Procedure Chapter 64 proceeding for DNA testing is not one that results in confinement, habeas corpus is not an appropriate remedy for counsel errors or other problems in Chapter 64 proceedings. Ex parte Baker, 185 S.W.3d 894, 897 (Tex. Crim. App. 2006).5 Writ applications filed under Article 11.07 that do not challenge a felony conviction are summarily dismissed. B. Restraint At the outset, the writ application must allege that the applicant is restrained in some way by the conviction under attack. The applicant must challenge either the fact or length of confinement. Ex parte Lockett, 956 S.W.2d 41, 42 (Tex. Crim. App. 1997) (deciding that a challenge to a “drug tax” levied by the Comptroller did not “request a change of either the fact or length” of the applicant’s confinement, and that the Court did not have Article 11.07 jurisdiction to hear the claim). Article 11.01 says the writ is the remedy when someone is “restrained” in their liberty. Tex. Code Crim. Proc. art. 11.01. Article 11.07 is more specific and speaks in terms of “confinement,” which means “confinement for any offense or any collateral consequence resulting from the conviction that is the basis of the instant habeas corpus.” Tex. Code Crim. Proc. art. 11.07 § 3(c) (emphasis added). This means that the applicant need not show literal confinement, and “a showing of a collateral consequence, without more, is now sufficient to establish ‘confinement’ so as to trigger application” of Article 11.07. Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010). Any 11.07 applicant who is not obviously serving a prison sentence at the time of filing must specifically allege how they are confined and be prepared to offer proof, if necessary. A simple allegation covering confinement, if unchallenged by the State, is typically enough to establish jurisdiction, but no allegations of confinement in a case where the sentence has obviously been discharged will generally result in a summary dismissal. If an applicant files a writ while incarcerated but discharges the sentence before the writ is decided, the initial allegation of restraint is sufficient for jurisdiction over the writ for the duration of its pendency. Ex parte Dennis, __ S.W.3d __, No. WR-89,188-01 (Tex. Crim. App. Dec. 21, 2022) In Harrington, the trial court found that the applicant was not in custody for the DWI conviction at issue but had suffered the loss of his job due to his incarceration, loss of job opportunities due to his status as a felon, loss of his right to vote during his incarceration and parole period, loss of the right to run for an elected office, and loss of the right to possess firearms. The court also found that he may be affected by specific future collateral consequences. Ex parte Harrington, 310 S.W.3d 452, 455–56 (Tex. Crim. App. 2010). These findings were supported by the applicant’s testimony at a writ hearing and were sufficient to prove confinement under Article 11.07. An applicant who is released on parole or mandatory supervision remains confined for purposes of Article 11.07 jurisdiction. Ex parte Elliott, 746 S.W.2d 762, 763 n.1 (Tex. Crim. App. 1988) (note that this decision pre-dates the definition of “confinement” in Article 11.07 that explicitly included collateral
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It is possible that a remedy in these situations is a second motion for DNA testing. Ex parte Suhre, 185 S.W.3d 898 (Tex. Crim. App. 2006).
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consequences as an aspect of confinement). V. Article 11.07 Procedure Article 11.07 habeas corpus applications follow a path that is unique in our criminal law.6 They are filed in the court of conviction, but upon filing, they become automatically returnable to the Court of Criminal Appeals. The State may respond, and the trial court may conduct fact finding and then issue findings of fact and a recommendation to the Court of Criminal Appeals. The writ record is then sent to the Court of Criminal Appeals for a decision on the case. The Court may remand the case to the trial court for fact finding, but the final decision rests with the Court of Criminal Appeals. What follows are details about the various deadlines, practices, and procedural hurdles involved in navigating this process. A. County Procedure and Deadlines i. Filing A writ application filed under Article 11.07 must be filed in the county of conviction with the district clerk and in the court “in which the conviction being challenged was obtained.” Tex. Code Crim. Proc. art. 11.07 § 3(b). The clerk shall then assign the case a file number ancillary to that of the challenged conviction. Id. The clerk shall also forward the writ application to the attorney representing the State. Id. Filing fees are prohibited. Tex. Code Crim. Proc. art. 11.051. As will be discussed in greater detail to come, a series of deadlines keep the writ application moving. The deadlines for responses and forwarding the record both run from when the State is served, which is not necessarily the filing date. ii. The Form Applications filed under Article 11.07 must be filed on the form prescribed by the Court of Criminal Appeals. Tex. R. App. P. 73.1(a). The form is available on the Court of Criminal Appeals’s website, and the Rules of Appellate Procedure require the district clerks to make the form available to applicants by request, without charge. Tex. R. App. P. 73.1(b). Texas prison law libraries should also make the form available to inmates. The form is also available as an appendix to the Rules of Appellate Procedure. Tex. R. App. P. Appendix E. Be certain to use the most recent version of the form. As of this writing (early April 2023) the current form says “Revised 2018” on each page. Compliance The form must be filled out completely by the applicant or petitioner. It provides two pages for each legal ground, which should be used to state the legal basis for the ground (ineffective assistance of trial counsel, for instance) and “set forth in summary fashion the facts supporting each ground.” Tex. R. App. P. 73.1(c). Grounds not raised on the form will not be considered and legal citations and extensive legal arguments should be raised in a separate memorandum. Id.7 The grounds for relief shall not exceed the two pages for each ground, and the memorandum shall not exceed 15,000 words if computer-generated, and 50 pages if handwritten or composed on a typewriter. Tex. R. App. P. 73.1(c) & (d). The Rules of Appellate Procedure also provide typeface requirements and require a certificate of compliance for the memorandum. Tex. R. App. P. 73.1(e) & (f). Dismissal for Non-Compliance The Court of Criminal Appeals routinely dismisses writ applications that do not conform to these rules as non-compliant. Tex. R. App. P. 73.2. However, non-compliance is not 6
Actually, Article 11.071 procedure is roughly analogous, but does have key differences, particularly with respect to subsequent applications. 7 This should not be read as a categorical ban on legal citations on the form. The Court does not dismiss writ applications just because they contain legal citations on the form. However, the form should generally be used for factual allegations and legal citations and argument should be reserved for any memorandum.
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a reason for a district clerk to refuse initial filing. See Tex. R. App. P. 73.4(a) (requiring the district clerk to “accept and file all” 11.07 applications). Failure to certify to the word count in the memorandum and exceeding the two page per ground limit will cause a writ application to be peremptorily dismissed, as will not using the form altogether. However, the Rules are not jurisdictional, and the Court will overlook compliance problems in certain situations. In Golden, the Court was faced with a writ application that was not verified properly in accordance with Article 11.14. The Court chose to address the merits of the noncompliant writ application and grant relief. In that case, the trial court recommended granting relief and the State agreed. Ex parte Golden, 991 S.W.2d 859, 862 (Tex. Crim. App. 1999). In general, the Court follows this example and does not dismiss non-compliant writ applications with an agreed grant recommendation that the Court agrees with. See Ex parte Morton, No. AP-76,663 (Tex. Crim. App. Oct. 12, 2011) (not designated for publication). Multiple Counts v. Multiple Cause Numbers The applicant challenging multiple cause numbers, even if they are all from the same proceedings, must fill out a separate form for each cause number. However, the applicant challenging multiple counts under one cause number may fill out a single form for each cause number and indicate on the form which counts are being challenged. Memorandum The theory behind the memorandum is that it is where the applicant makes extensive legal arguments. My personal view is that applicants should use the memorandum to flesh out the facts of the case or trial and focus on the prejudice argument. Unless the applicant wishes to break new legal ground or there is a dispute over the state of the law, extensive legal argumentation beyond setting out the applicable standard or test is not typically productive. From my experience, the most common failing in habeas corpus applications across the spectrum is the failure to grapple with prejudice, whether it is Brady materiality, Strickland harm, actual innocence, or harm relating to the other cognizable claims. The applicant must adequately place the error into context of the relevant facts, most of which the Court of Criminal Appeals will be unaware of without assistance from the litigants. Exhibits and Attachments The habeas applicant must, where possible, prove the claims with evidence. Most commonly, this is sworn statements, laboratory results, expert reports, or record excerpts. The applicant should attach whatever proof is available and necessary to support the writ allegations. Because the Court of Criminal Appeals often does not receive a complete record from the county, the conscientious applicant is well advised to reference any exhibits on the writ form so the Court of Criminal Appeals will know if something is missing from the writ record. The Rules of Appellate Procedure now clarify that the Rules of Evidence apply in 11.07 hearings, but the comment to Rule 73.8 specifies that the rule “does not limit the ability of an applicant to attach supporting documents to an application for a writ of habeas corpus.” Verification The Code of Criminal Procedure includes an oath requirement generally applicable to habeas corpus “petitions.” Tex. Code Crim. Proc. art. 11.14 § 5. The applicant need not necessarily personally verify an 11.07 application. For example, a petitioner may verify the application according to belief. Ex parte Rendon, 326 S.W.3d 221, 223 (Tex. Crim. App. 2010). The verification may be made by an oath before a notary public or officer authorized to administer oaths or as “an unsworn declaration in substantially the form required by Civil Practice and Remedies Code chapter 132 as set out in the verification section of the application form.” Tex. R. App. P. 73.1(g). The current 11.07 form contains spaces for all permissible varieties of verification, including the inmate's unsworn declaration. Tex. R. App. P. Appendix E. 11.07 applications that are not verified are dismissed as non-compliant, though the Golden exception can apply. Ex parte Golden, 991 S.W.2d 859, 862 (Tex. Crim. App. 1999). Keep Rule of Appellate Procedure 9.1(c)(1) in mind if you, as the petitioner, are verifying the writ application. In that situation, signing the document with the /s/ followed by the petitioner’s name is insufficient and the writ must contain an electronic or scanned image of the signature. Tex. R. App. P. 9.1(c).
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iii. Timelines in Convicting Court Deadlines for addressing the 11.07 application and forwarding it to the Court of Criminal Appeals begin from the date the clerk serves the writ application on the State. Tex. Code Crim. Proc. art. 11.07 § 3(b). The State “shall answer the application not later than the 30th8 day after the date the copy of the application is received,” but matters in the application not admitted are “deemed denied.” Id. When the State's attorney “files an answer, motion, or other pleading relating to an application for a writ of habeas corpus or the court issues an order relating to an application for a writ of habeas corpus,” the clerk shall serve a copy on the applicant. Tex. Code Crim. Proc. art. 11.07 § 7. See also Tex. R. App. P. 73.4(b)(2) (requiring the clerk to send copies of documents to all parties in the case). Within 20 days of the State’s deadline, it is up to the convicting court to “decide whether there are controverted, previously unresolved facts material to the legality of the applicant’s confinement.” Tex. Code Crim. Proc. art. 11.07 § 3(c). If the convicting court decides the application does not raise any controverted issues, the clerk shall immediately transmit a copy of the application, any answers filed, and a certificate reciting the date the finding was made. Id. Again, failure to act within 20 days constitutes a finding that there are no controverted issues. All told, the convicting court has 50 days from the date the State is served. If the court designates no issues to be resolved or takes no action by the deadline, the clerk is under a duty to forward the writ application to the Court of Criminal Appeals. Martin v. Hamlin, 25 S.W.3d 718, 719 (Tex. Crim. App. 2000) (observing that the statute does not provide authority to extend the time limitations other than by a timely order designating issues, and without a timely order, the clerk has a duty to immediately transmit the writ application to the Court of Criminal Appeals). If the court decides there are controverted, previously unresolved facts material to the legality of confinement, it shall enter a timely order designating the issues to be resolved. Tex. Code Crim. Proc. art. 11.07 § 3(d). The order designating issues is commonly referred to as the “ODI.” Upon entry of an ODI, the district clerk must “immediately transmit” a copy of the order and proof of the date the district attorney received the writ application to the Court of Criminal Appeals. Tex. R. App. P. 73.4(b)(1). With a timely ODI, the trial court then has 180 days from the date of service on the State before the clerk must forward the writ record to the Court of Criminal Appeals. Tex. R. App. P. 73.4(b)(5), 73.5. The trial court may seek an extension of time from the Court of Criminal Appeals to resolve timely designated issues, but the request must come from the court itself,9 and must be filed in the Court of Criminal Appeals before the expiration of the trial court’s deadlines. Tex. R. App. P. 73.4(b)(5), 73.5. There is no statutory authority for extension of the initial deadline to enter an ODI. McCree v. Hampton, 824 S.W.2d 578, 579 (Tex. Crim. App. 1992). The Court of Criminal Appeals will deny motions to extend the ODI deadline. iv. Supplements and Amendments Article 11.07 Applicants are generally free to amend or supplement the writ application, so long as the writ is pending. Understanding the difference between these two terms is critical. An amended application “entirely replaces the prior application,” and the “applicant who files an amended application while his prior application remains pending should anticipate that only the amended application will be considered” by the convicting court and the Court of Criminal Appeals. Ex parte Speckman, 537 S.W.3d 49, 55 n.9 (Tex. Crim. App. 2017). “By contrast, a ‘supplemental application’ is a pleading raising new claims that are intended to be considered in addition to the claims already presented in the prior application.” Speckman, 537 S.W.3d at 55 n.9. In either case, if amended or supplemental
8
This deadline was recently expanded from 15 days. The change applies to 11.07 applications filed after September 1, 2021. 9 This requirement is not actually in the text of the rule, so it can’t be said to be a requirement. However, this is what the Court requires in its remand orders, and it’s safe to say that the Court prefers these requests to come from the trial court.
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applications are being filed, they must be filed on the 11.07 form and in the convicting court. Id. The applicant is also generally free to file supplemental evidence or argument but must be careful that the supplemental argument does not cause the memorandum to exceed the word count. In almost all cases, material filed after the initial writ application must be filed in the county of conviction, even if the writ record has been forwarded to the Court of Criminal Appeals. Ex parte Whisenant, 443 S.W.3d 930, 932 (Tex. Crim. App. 2014); Ex parte Pena, 484 S.W.3d 428, 43–31 (Tex. Crim. App. 2016) (partially superseded by Rule of Appellate Procedure 73.7). If amended or supplemental writ applications or supplemental materials are being filed after the writ record has been forwarded to the Court of Criminal Appeals, the best practice is to notify the Court of Criminal Appeals of the filing. The Rules of Appellate Procedure specify what a party must show before supplementing the record with evidence after a writ record has been forwarded to the Court of Criminal Appeals. Tex. R. App. P. 73.7. The party must file a motion to supplement, and the movant’s burden depends on whether the writ has been filed and set at the Court of Criminal Appeals10 and if so, whether the movant wants to file the evidence in the trial court or directly in the Court of Criminal Appeals. Id. Though it is possible for the Court to grant leave to file new evidence directly in the Court of Criminal Appeals after a case has been filed and set, this path is disfavored and carries the highest burden. Tex. R. App. P. 73.7(a)(1). The Rule’s commentary makes it clear that before the writ has been forwarded, the party is at liberty to file additional evidentiary materials without any special motion in the Court of Criminal Appeals. v. Recusal of the Habeas Judge Rule of Civil Procedure 18a, governing recusal of judges, applies to habeas proceedings. Ex parte Sinegar, 324 S.W.3d 578 (Tex. Crim. App. 2010). Parties may file a motion to recuse if necessary but must adhere to the requirements of Rule 18a. vi. Habeas Bond Habeas bond is available when the habeas court makes findings “jointly stipulated by the applicant and the state.” Tex. Code Crim. Proc. art. 11.65(b). The applicant may be released on bond subject to conditions imposed by the court “until the applicant is denied relief, remanded to custody, or ordered released” based on the ultimate disposition of the writ application. Tex. Code Crim. Proc. art. 11.65(b). The Court of Criminal Appeals has declined to set bond itself while a writ application is pending, noting that the convicting court is the proper forum. Ex parte Briggs, 159 S.W.3d 926 (Tex. Crim. App. 2004). vii. Appointment of Counsel When the trial court concludes that the interests of justice require representation, an eligible indigent defendant is entitled to have the trial court appoint an attorney to represent the defendant in habeas corpus proceedings. Tex. Code Crim. Proc. arts. 1.051(d)(3), 26.04(c). The Court of Criminal Appeals typically orders appointment of counsel to indigent applicants when it remands a case specifically for a live hearing. Additionally, the Code of Criminal Procedure now provides that the court “shall appoint” counsel to represent an indigent applicant “[i]f at any time the state represents to the convicting court that an eligible indigent defendant . . . is not guilty, is guilty of only a lesser offense, or was convicted or sentenced under a law that has been found unconstitutional” by the Court of Criminal Appeals or the United States Supreme Court. Tex. Code Crim. Proc. art. 11.074. The Court has adhered to the Supreme Court’s conclusion that there is no constitutional right to assistance of counsel in collateral review of a conviction. Pennsylvania v. Finley, 481 U.S. 551, 554–55 (1987). The Court has also held that the Texas Constitution provides no right to counsel in post-conviction
10
As will be discussed below, writ applications are rarely filed and set. If a writ application is filed and set and waiting disposition, that generally means that the Court intends to dispose of the case with a substantive written opinion.
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habeas corpus proceedings. Ex parte Mines, 26 S.W.3d 910, 913 (Tex. Crim. App. 2000). viii. Evidence Gathering and Hearings Describing the habeas judge’s role in the (for this purpose) analogous 11.071 proceedings, the Court wrote that the habeas judge: [I]s the collector of the evidence, the organizer of the materials, the decisionmaker as to what live testimony may be necessary, the factfinder who resolves disputed factual issues, the judge who applies the law to the facts, enters specific findings of fact and conclusions of law, and may make a specific recommendation to grant or deny relief. Ex parte Simpson, 136 S.W.3d 660, 668 (Tex. Crim. App. 2004). To resolve issues, “the court may order affidavits, depositions, interrogatories, additional forensic testing, and hearings, as well as using personal recollection.” Tex. Code Crim. Proc. art. 11.07 § 3(d). If the court decides to convene a live hearing, it “may appoint an attorney or a magistrate to hold a hearing and make findings of fact.” Id. The parties are entitled to “at least seven full days’ notice before such hearing is held.” Tex. Code Crim. Proc. art. 11.07 § 6. No rule or case necessarily compels it, but courts typically appoint counsel for live hearings with a pro-se indigent applicant. And as noted above, the Court of Criminal Appeals usually orders the court to appoint counsel on remands for live hearings. The Rules of Evidence apply at a hearing held on an 11.07 habeas corpus hearing. Tex. R. App. P. 73.8. As noted above, the comment to this recent Rule specifies that it does not limit an applicant’s ability to attach supporting documents to a writ application. In my experience as a consumer of habeas hearing transcripts, extensive disputes over evidentiary points are often counterproductive at habeas hearings—the courts are aware of the weight of different varieties of evidence. As with exhibits and memorandums, if there was a live hearing, the parties should take care to make the Court of Criminal Appeals aware of it. Writ records regularly reach the Court without transcripts from the hearing or any indication that a live hearing occurred. This happens despite the Code’s explicit instruction that “it shall be the duty of the reporter who is designated to transcribe a hearing . . . to prepare a transcript within 15 days of its conclusion,” and to “immediately transmit the transcript to the clerk of the convicting court.” Tex. Code Crim. Proc. art. 11.07 § 3(d). ix. Findings of Fact The habeas court should make findings of fact resolving the issues that were designated for resolution. “As a matter of course [the Court of Criminal Appeals] pays great deference to the convicting court’s recommended findings of fact and conclusions of law, as long as they are supported by the record, particularly in those matters with regard to the weight and credibility of the witnesses and, in the case of expert witnesses, the level and scope of their expertise.” Ex parte Van Alstyne, 239 S.W.3d 815, 817 (Tex. Crim. App. 2007). As Judge Cochran often wrote, the reviewing court is “Johnny-on-the-Spot,” particularly when judging credibility and demeanor of witnesses. Ex parte Thompson, 153 S.W.3d 416, 425 (Tex. Crim. App. 2005) (Cochran, J., concurring). Parties should always submit proposed findings. The Court has recently cast doubt on the occasional practice of parties agreeing to relief on some grounds while leaving other grounds raised unresolved with instructions for the Court to remand if it does not agree with the stipulated relief. Ex parte Roark, __ S.W.3d __ No. WR-56,380-03 (Tex. Crim. App. Sep. 15, 2021). The Court observed that “without full presentment and examination of all issues in this application, we only invite piecemeal litigation,” and that “[g]enerally, all of an applicant’s claims should be fully developed and ready to be resolved when the record is transmitted to this Court.” Id. The Court has since clarified that Roark did not set out an inflexible rule. In Colone, the Court added a footnote explaining that the record in Roark was inadequate to resolve the issues presented, but said that, “[i]n the interests of justice and judicial economy, we retain the discretion to dispose of habeas claims requiring no further fact development, even if the habeas application presents additional claims that would require further fact development were the
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case to go forward.” Ex parte Colone, __ S.W.3d __, No. WR-89,538-01 at *3 n.2 (Tex. Crim. App. Mar. 2, 2022). x. Objections to Findings Parties are free to file objections to the trial court’s findings. The Rules of Appellate Procedure provide that objections are due within 10 days from the party’s receipt of the findings of fact and conclusions of law. Tex. R. App. P. 73.4(b)(2). The objections should be part of the record that the district clerk forwards to the Court of Criminal Appeals. Id. Objections are particularly helpful to the reviewing court in closely fought cases and when a party believes the findings misrepresent or elide crucial facts. xi. Forwarding the Record At the close of the applicable time (with or without an ODI), the district clerk must transmit the habeas record to the Court of Criminal Appeals. The clerk must transmit “under one cover, the application, any answers filed, any motions filed, transcripts of all depositions of hearings, any hearings, any affidavits, and any other matters such as official records used by the court in resolving issues of fact.” Tex. Code Crim. Proc. art. 11.07 § 3(c), (d). The record must include a summary sheet reflecting basic facts about the habeas application and underlying conviction, as specified in the Rules. Tex. R. App. P. 73.4(b)(3). In addition to the documents generated by the habeas litigation, the clerk must also include copies of the charging instrument, any plea papers, the docket sheet, jury charges, the verdict, any proposed findings of fact and conclusions of law, objections to the findings, and the transcripts of any hearings. Tex. R. App. P. 73.4(b)(5). Mandamus is appropriate to compel the clerk to forward records that have been held past the statutory deadlines set by Article 11.07. Gibson v. Dallas County Dist. Clerk, 275 S.W.3d 491 (Tex. Crim. App. 2009); DeJean v. District Clerk, 259 S.W.3d 183, 184 (Tex. Crim. App. 2008). On most weeks, the Court of Criminal Appeals issues mandamus orders inquiring into the status of pending 11.07 applications. xii. General Tips Some jurisdictions have required applicants to file a “shell writ” containing only bare allegations before appointing counsel or providing access to discovery. Sometimes an applicant may file an early, bare bones writ as a placeholder to avoid missing AEDPA deadlines for federal court. The Court of Criminal Appeals has not written an opinion considering this practice, but litigants must understand the potential pitfalls presented by filing skeletal or “shell writs.” The primary problem is that the writ record could be forwarded to the Court of Criminal Appeals against the wishes of the parties. Once the writ application is at the Court of Criminal Appeals, it is out of your hands, and the Court no longer grants motions to dismiss writ applications without question. Ex parte Speckman, 537 S.W.3d 49 (Tex. Crim. App. 2017). Whether the applicant has filed a “shell writ” or not, if the writ is filed with further discovery and fact finding anticipated during its pendency, habeas counsel must keep a close eye on the writ to avoid being blindsided if it is sent to the Court of Criminal Appeals without notice. The party may ask the Court of Criminal Appeals to hold the case or remand it, but there are no guarantees once the writ is in Austin. Writ applications can take months to be decided, but they can also move through the Court in weeks, so the litigant must maintain vigilance and know where the writ is. Though the Code of Criminal Procedure and Rules of Appellate Procedure set forth mandatory deadlines, apart from the deadlines for the ODI and completion of fact finding, the Court of Criminal Appeals is generally not in the business of policing the other deadlines with rigor by, for instance, striking untimely responses or objections. But see, Ex parte Pena, 484 S.W.3d 428, 430 (Tex. Crim. App. 2016) (conditionally striking an appendix from the State’s brief that was filed for the first time in the Court of Criminal Appeals). This could always change, but motions for sanctions, to strike pleadings, for default judgments, and the like are almost always fruitless endeavors. 11.07 litigation, such as it is, has been
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flexible. B. Court of Criminal Appeals Review & Procedure i. General CCA Process When the writ application is received at the Court of Criminal Appeals, it is assigned a cause number11 and randomly assigned to one of seven staff lawyers who work exclusively on extraordinary writs. The staff lawyer writes a memorandum summarizing the claims, evidence, and arguments, discussing the applicable law and procedural posture, and making a recommendation to the Court. The case is randomly assigned to a judge who then becomes responsible for shepherding the case through the Court for a disposition. In fiscal year 2021,12 the Court received 3,325 new 11.07 applications and 533 other original proceedings (mandamus, original habeas corpus, prohibition, certiorari ), all of which went through this process.13 Writs returned after remand or abatement follow the same process and go through the same personnel. ii. Pleading standard As mentioned earlier, the most important thing (in my view) for habeas counsel and pro se applicants to understand is the importance of pleading. The applicant’s burden is to allege and prove facts, which, if true, entitle him or her to relief. Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985). In an ineffective assistance claim, you must prove that counsel erred and that the error prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). If the applicant with a DWI conviction simply alleges that counsel did not object to a warrantless blood draw, that only tells the Court that counsel may have erred. It tells the Court nothing about the evidence used at trial. Was blood alcohol evidence from the blood draw introduced in trial? Was it the only evidence of intoxication? Was there dash cam video of a visibly intoxicated applicant falling out of a car? Was there a confession? And if there was other incriminating evidence, why was the blood evidence so important that the applicant was prejudiced? Over and over, applicants (including those represented by experienced counsel) do not allege facts that establish entitlement to relief. The DWI hypothetical above is one hastily drawn example, but failure to allege a complete case can result in a summary denial without resort to an inquiry into, in this instance, whether counsel erred. See Strickland v. Washington, 466 U.S. 668, 697 (1984) (noting that a court needn’t determine whether counsel was deficient before examining prejudice, predicting that courts will often find it easier to dispose of an ineffectiveness claim on the lack of prejudice). Writ applications are routinely remanded for findings and resolution when they allege facts, which, if true, could entitle the applicant to relief. Writ applications that do not “allege facts” are routinely denied without written order. iii. Review of Findings of Fact The habeas court is the “original factfinder” and the Court of Criminal Appeals is the “ultimate factfinder.” Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). When the Court of Criminal Appeals reviews a habeas court’s findings and conclusions, it defers to the findings supported by the record, particularly those related to credibility and demeanor. Ex parte Navarijo, 433 S.W.3d 558, 567 (Tex. Crim. App. 2014). But the Court has concluded it may invoke its authority as the “ultimate fact finder to make contrary or alternative findings and conclusions” when its independent review 11
When an applicant files for extraordinary writ relief in the Court of Criminal Appeals, he or she is assigned a cause number that will stay with that person for all future writ filings. So, if my first extraordinary writ filed with the Court is a delayed writ mandamus and is given cause number WR-90,000-01, all future filings, including the eventual 11.07 application, will have that WR-90,000 number, and each new case will have a new numerical suffix. If the 11.07 is the next case the Court receives from me, it will be WR-90,000-02, a subsequent writ will be WR-90,000-03, and so on. In the past, the Court assigned habeas corpus cases a new cause number with the “AP” prefix when they were filed and set, but stopped that practice about ten years ago. 12 As of April 2023, statistics for Fiscal Year 2022 are in production. 13 According to the Office of Court Administration, this was the lowest number of 11.07 applications since 2001 and the lowest number of original proceedings since 1999.
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of the record shows that the findings and conclusions are not supported by the record. Ex parte Harleston 431 S.W.3d 67, 70–71 (Tex. Crim. App. 2014). The Court retains authority to make contrary findings, even when the habeas court’s findings are based on credibility. Id. When reviewing the habeas court’s legal conclusions, the Court applies a de novo standard of review, taking into consideration the habeas court’s conclusions and recommendations. Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App. 2015). iv. Remands The Court regularly remands cases to the convicting court for findings or supplemental findings addressing issues it believes must be resolved before deciding the case. The remand order typically specifies which issues the Court is interested in, usually directing the habeas court to resolve those specific issues. Most of the time, the order provides 90 days for the habeas court to investigate and make findings of fact. The Court’s remand orders specify that extensions of time must be requested by the trial court and obtained from the Court of Criminal Appeals. There are different schools of thought as to whether the remand order is jurisdictional, insofar as it ties the hands of the habeas court as to which issues it may investigate. However, the orders typically allow the court to “make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief.” Whether the habeas court is limited by the terms of the remand order has never been a dispositive issue and has not, to my knowledge, been addressed by an opinion. The Court sometimes issues orders for supplementation of the record directly to the clerk when it discovers that the record is missing a document or transcript. These usually have a shorter deadline and are more like abatement orders—they do not return the case to the trial court (and do not appear on the Court’s weekly hand down). If you are involved in a case that is remanded, review the order to determine what issue the Court wants resolved, and always double-check to make sure the Court has not expedited the deadline or ordered the clerk to send up specific parts of the record. Fact finding that goes beyond the terms of the order may be fruitful, but you also risk wasting time on something the Court does not consider relevant or has already determined is without merit. v. CCA Dispositions The Court of Criminal Appeals will vote to deny, dismiss, remand, hold, file and set, or grant a writ application. A dismissal is a decision unrelated to the merits of the claims, while a denial is a final adjudication of the issues raised and will be based either on the trial court’s findings and the Court’s independent review of the case or on the Court’s own review. See Ex parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App. 2004) (noting that “a ‘dismissal’ means that we declined to consider the claim for reasons unrelated to the claim’s merits.”). The Court may remand the case to the county if the writ raises issues that were not addressed (and the Court believes need to be addressed) or if issues need additional development for resolution. When the Court files and sets (without simultaneously granting relief), that generally means the case is being set for a written opinion to decide unique legal issues or a complex or close factual or legal situation. In that situation, the parties will usually be given the chance to brief a discrete issue and, more rarely, present oral argument. vi. Rehearing/Rehearing on the Court’s Own Motion The Rules of Appellate Procedure dictate that “[a] motion for rehearing an order that denies habeas corpus relief or dismisses a habeas corpus application under Code of Criminal Procedure, articles 11.07 or 11.071, may not be filed. The Court may on its own initiative reconsider the case.” Tex. R. App. P. 79.2(d) (emphasis added). For this reason, if you simply file for “rehearing” or “reconsideration” after an order denying or dismissing a writ application, the motion will
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be dismissed because it is not allowed by the Rules. However, if you style your pleading as a motion or suggestion that the Court reconsider on its own motion, the motion will get a ruling on the merits. Nevertheless, the Court reads everything, so if an impermissible motion for rehearing raises a real problem, the Court typically dismisses the motion only to reconsider the case on its own motion. Cases that are filed and set for written opinions (distinguished from orders) fall under Rule of Appellate Procedure 77.1 and are subject to the rehearing rules under Rule of Appellate Procedure 79.1. Successful attempts at rehearing or reconsideration on the Court’s own motion typically focus on demonstrable factual or legal errors and should not simply rehash the arguments the Court has already rejected. VI. Subsequent Writs and “One Bite at the Apple” A. “One Bite at the Apple” 11.07 litigants must understand the bar on consideration of subsequent writ applications. It informs writ practice not just in the cases of subsequent writs, but must also be on the mind of petitioners and applicants when they file their first writ application, knowing that it is almost certainly the only shot at post-conviction relief. Basically, writ applicants have one chance to litigate a post-conviction application for habeas corpus, and once that writ has been decided, the merits of any future claims will not be considered unless they are based on newly applicable law, newly discovered facts, or when they are tied to a prima facie showing of innocence. Tex. Code Crim. Proc. art. 11.07 § 4. Section 4 must be taken very seriously. Even future consideration of a winning jurisdictional claim could be barred once a prior writ has been decided. Ex parte Sledge, 391 S.W.3d 104 (Tex. Crim. App. 2013). Prosecutors are not at liberty to waive the Section 4 bar. Ex parte St. Aubin, 537 S.W.3d 39, 44 n.14 (Tex. Crim. App. 2017). Therefore, those considering filing a writ on a prisoner’s behalf must first be certain that the prisoner has not already filed a pro-se writ application before undertaking a complete investigation to discover all viable claims. Prosecutors responding to writ applications must understand whether the merits of the claims are in play or not. But whether a prior writ has been filed and decided is not necessarily the end of the story. B. Triggering the “Section 4 bar” Whether Section 4 applies to a subsequent writ is a source of ongoing confusion amongst litigants. It applies when “a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction.” Tex. Code Crim. Proc. art. 11.07 § 4(a). So, the prior writ must have both received a final disposition, and challenged the conviction.14 Item 15 on the current 11.07 form asks about prior writ applications and provides space to explain why the current grounds were not and could not be raised in the previous application. Those facing the Section 4 bar should, at a minimum, confront it here and explain either why it does not apply or why they are entitled to an exception. It is also good to address the issue at the beginning of the memorandum of law. This should receive considerable focus since the Court will not consider the rest of the arguments if the applicant does not get past Section 4. As in everything else relating to writs, the applicant must allege enough facts to establish an exception—rote recitation of the statute is insufficient. Ex parte Sowell, 956 This differs from death penalty writ practice. Under Article 11.071 § 5, any writ filed “after filing an initial application” is a subsequent application that faces the strictures of that article’s subsequent writ provisions. 14
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S.W.2d 39, 40 (Tex. Crim. App. 1997). i. “Final Disposition” This refers to the Court of Criminal Appeals’ ruling on the writ application. Until the Court rules on a writ, supplemental, amended, or new writ applications filed in the trial court before a final ruling on an already pending writ are considered on the merits and not barred as subsequent. Ex parte Saenz, 491 S.W.3d 819, 825 (Tex. Crim. App. 2016). ii. Challenge the Conviction Often, what is really at issue in a subsequent application is whether the applicant’s prior writ “challenged the conviction.” For the procedural bar to apply, the applicant must have filed a writ that raised claims “regarding the validity of the prosecution or the judgment of guilt.” Ex parte Evans, 964 S.W.2d 643, 647 (Tex. Crim. App. 1998). Therefore, writs that only raised claims relating to parole revocations, for instance, do not trigger the Section 4 bar. Ex parte Evans, 964 S.W.2d at 647. Similarly, writ applications seeking only an out-of-time appeal (or PDR) do not “directly seek to overturn the conviction” and do not “pertain to the validity of the prosecution or the judgment of guilt,” so writs containing only those claims do not cause the Section 4 bar to apply. Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). Before this line of cases got started, the Court implicitly found that granting an out-of-time appeal did not challenge the conviction, as it restores the pendency of the direct appeal, making other claims premature. Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim. App. 1997). But when the only claim raised in the first writ argued that appellate counsel was ineffective for not challenging the indictment on direct appeal, the Court concluded that the conviction was challenged for Section 4 purposes. Ex parte Santana, 227 S.W.3d 700, 704 (Tex. Crim. App. 2007). This is because, in contrast to a claim that the applicant is entitled to an out-of-time appeal, a claim that counsel should have raised a viable claim on appeal “includes an underlying claim relating to the conviction that must be considered in analyzing deficient performance and prejudice.” Santana, 227 S.W.3d at 705. In reviewing the underlying claim for prejudice, “the propriety of the prosecution and the judgment of guilt is directly called into question.” Id. Once the conviction has been challenged, inquiry into the nature of the claims that have been raised ends. This is because after a writ has challenged the conviction, all future writ applications, including those raising issues that do not challenge the validity of the prosecution or judgment of guilt, are subject to Section 4. Ex parte Whiteside, 12 S.W.3d 819, 821 (Tex. Crim. App. 2000). One claim is enough to challenge the conviction. A writ application with ten grounds raising parole issues and eligibility for street time that includes one Fourth Amendment claim challenges the conviction. iii. Deny or Dismiss Finally, for the Section 4 bar to apply, the claims in a prior writ application must have been decided on the merits. A disposition on the merits of a claim should be a denial, and a disposition unrelated to the merits should be labeled as a dismissal. Ex parte Torres, 943 S.W.3d 469, 472–73 (Tex. Crim. App. 1997). A writ that has been dismissed on any theory is not a “final disposition.” In Torres, the Court noted that the first writ application resulted in an out-of-time appeal with the remaining claims unrelated to that issue denied without prejudice. The Court corrected itself, observing that the correct procedure would have been to dismiss those claims. Ex parte Torres, 943 S.W.3d at 472–73. To this day, when an applicant is granted an out-of-time appeal, any other claims included in the writ are dismissed under Torres. C. New Facts or Law (a)(1) If the writ application is a subsequent writ, one way for the applicant to overcome the Section 4 bar is to show that the issues raised “have not been and could not have been presented previously in an original
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application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.” Tex. Code Crim. Proc. art. 11.07 § 4(a)(1). Note that the timing of the availability is tied to the date the prior writ application was filed. i. New Factual Basis There aren’t many, if any, published cases that turn on whether a new factual basis was or was not available at the time of a prior filing, and the issue is typically not close. Article 11.07 says that a factual basis was unavailable at the time of filing a prior writ application “if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.” Tex. Code Crim. Proc. art. 11.07 § (4)(c). Prisoners often obtain merit review on subsequent applications based on mandatory supervision or parole issues that crop up after their initial writ. Recantations are often a new factual basis, but not if the complainant had already recanted at the time of trial. But see Ex parte Calderon, 309 S.W.3d 64 (Tex. Crim. App. 2010). If you are facing the issue as an applicant or petitioner, you must address it and make your argument. For instance, have Chapter 64 proceedings led to new DNA results? You might consider addressing why no Chapter 64 proceedings were undertaken before the first writ application was filed. ii. New Legal Basis The standard for overcoming the Section 4 bar with a new legal basis is exacting. The legal basis of a claim is considered “unavailable” on a prior writ if it “was not recognized by and could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state” on or before the date of the prior writ. Tex. Code Crim. Proc. art. 11.07 § (4)(b). In 2009, the Court of Criminal Appeals held for the first time that admission of false testimony could violate due process, irrespective of the State’s knowledge of its falsity. Ex parte Chabot, 300 S.W.3d 768, 772 (Tex. Crim. App. 2009). Three years later, the Court held, without much analysis, that Chabot was the “first case in which we explicitly recognized an unknowing-use due-process claim; therefore, that legal basis was unavailable at the time applicant filed his previous application.” Ex parte Chavez, 371 S.W.3d 200, 205 (Tex. Crim. App. 2012). However, the Court has rejected a “new legal basis” premised on new cases relating to the duties of counsel in perfecting appeal when the claim could have been “reasonably formulated” from prior decisions and statutory language. Ex parte Fontenot, 3 S.W.3d 32, 3435 (Tex. Crim. App. 1999). More recently, the Court has held that although the applicant did rely on a new double jeopardy opinion, that opinion was based on double jeopardy principles that were not new but were “familiar principles articulated in earlier cases from the Supreme Court and this Court.” Ex parte St. Aubin, 537 S.W.3d 39, 45 (Tex. Crim. App. 2017). Finally, the Court has found that the applicant must show that the new legal basis applies to the claims raised. The Court came to this conclusion when an applicant invoked the Padilla v. Kentucky15 decision concerning immigration advice in a subsequent writ application. The Court found that the applicant could not possibly prevail under Padilla because the challenged conviction pre-dated Padilla and intervening cases held the decision was not retroactive. The Court concluded that applicants relying on a new legal basis must show not only that it was unavailable at the time of the first writ application, “but also that the facts he alleges are at least minimally sufficient to bring him within the ambit of that new legal basis for relief.” Ex parte Oranday-Garcia, 410 S.W.3d 865, 867 (Tex. Crim. App. 2013). Because the new legal basis for his claims did not apply to his case, Oranday-Garcia’s writ was dismissed as subsequent. OrandayGarcia, 410 S.W.3d at 869.
15
559 U.S. 356 (2010).
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D. Constitutional Violations (a)(2) (But for violation of the Constitution, no rational juror . . .) The second major exception to the bar on subsequent writ applications applies when the applicant can show that, “but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.” Tex. Code Crim. Proc. art. 11.07 § 4(a)(2). This is not as straightforward as it appears and winning claims are rare. The Court of Criminal Appeals filed and set a case in 2007 “to explain the application of . . . Section 4(a)(2).” Ex parte Brooks, 219 S.W.3d 396, 398 (Tex. Crim. App. 2007). The Court then concluded that an applicant “must accompany constitutional-violation claims with a prima facie claim of actual innocence” to satisfy that subsection of Section 4. Brooks, 219 S.W.3d at 398. The Court’s rationale was that the statutory subsequent writ provisions were enacted in response to Schlup v. Delo, in which the Supreme Court held that a federal habeas corpus petitioner could overcome procedural bars by making a prima facie showing of innocence and demonstrating that a constitutional violation more likely than not resulted in the conviction of an innocent person. Ex parte Brooks, 219 S.W.3d 396, 399 (Tex. Crim. App. 2007) (citing Schlup v. Delo, 513 U.S. 298 (1995)). Therefore, the Court concluded that applications invoking Subsection 4(a)(2) that do not also contain a prima facie showing of actual innocence (which necessarily requires newly discovered evidence of innocence) will be dismissed as subsequent. Subsection 4(a)(2) carries a preponderance burden, which is lower for the applicant than the clear and convincing burden applicable to actual innocence claims (discussed later). Nevertheless, applicants very rarely use evidence of innocence to obtain review of a constitutional claim, and this is probably because an applicant with evidence of innocence will simply push for an innocence claim on its own merits. Schlup is a creature of the federal courts, where “bare innocence” claims are still not cognizable. The rare winning 4(a)(2) case typically comes from a double jeopardy claim. In Knipp, post-conviction investigations revealed that the applicant committed one methamphetamine delivery rather than the two for which he was convicted. Ex parte Knipp, 236 S.W.3d 214, 215–17 (Tex. Crim. App. 2007). The Court found that, but for the double jeopardy violation, no rational jury would have convicted him of the charge for which he made a prima facie showing of actual innocence. Ex parte Knipp, 236 S.W.3d 214, 217 (Tex. Crim. App. 2007). The Court did not question whether the evidence was “newly discovered.” The Court also granted double jeopardy relief on a subsequent writ application in Ex parte Milner, 394 S.W.3d 502 (Tex. Crim. App. 2013). After federal habeas proceedings vacated a murder conviction, Milner was left with two attempted capital murder convictions based on three victims, which the Court found violated double jeopardy (based on the allowable unit of prosecution for attempted capital murder). Ex parte Milner, 394 S.W.3d 502, 50910 (Tex. Crim. App. 2013). The Court said that in cases claiming double jeopardy violations, innocence may be proved “by providing facts sufficient to establish by a preponderance of the evidence that, but for a double-jeopardy violation, no rational juror could have found that the applicant guilty of the challenged offense beyond a reasonable doubt.” Id. at 506. Apparently, the constitutional violation itself can, in some circumstances, count for evidence of innocence. The Court has since held that that a double jeopardy violation based on multiple punishments will not satisfy the “innocence-gateway exception” to the subsequent writ bar. Ex parte St. Aubin, 537 S.W.3d 39 (Tex. Crim. App. 2017).16 In St. Aubin, the applicant shot five people and was convicted of one count of Interestingly, a case is pending as filed and set, awaiting an opinion to “determine whether a double jeopardy claim involving multiple-punishments arising from convictions under separate legal theories can satisfy the ‘innocence gateway’ exception to the subsequent writ bar, as provided in Texas Code of Criminal Procedure Art. 11.07 § 4(a)(2). Ex parte Victor, No. WR-84,934-07 (Filed and set for submission on October 26, 2022). 16
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murder and four counts of attempted murder. The Court reasoned that when multiple convictions result from a single trial, the double jeopardy guarantee assures only that the court does not impose multiple punishments for the same offense. Ex parte St. Aubin, 537 S.W.3d 39, 43 (Tex. Crim. App. 2017). The Court found that the double jeopardy protection does not prevent the State from prosecuting and obtaining jury verdicts on two offenses, so “it cannot be said that ‘but for a violation of the protection against double jeopardy, no rational juror would have found the applicant guilty of both offenses.’” Id. The Court distinguished Knipp, saying that the offense in that case upon which relief was granted never occurred at all, and finding that the only plausible exception to its multiple punishments rule would be the unusual Knipp situation “where a duplicate offense is mistakenly charged.” Id. at 43–44. VII. Legal Claims Post-conviction habeas corpus litigants must understand which legal claims the Court of Criminal Appeals will consider on the merits. Theories of “cognizability” determine which claims are entitled to a review on the merits. Ex parte Marascio, 471 S.W.3d 832, 833 (Tex. Crim. App. 2015) (Keasler, J., concurring). This is the body of law telling us that a bare Fourth Amendment claim is generally not “cognizable” on habeas corpus, and will be denied without regard to the merits, while a claim of ineffective assistance of counsel based on failure to challenge a warrantless search will be reviewed on the merits. Given the statutory limitations on multiple habeas corpus applications, knowing which claims will be considered and which claims will be peremptorily denied is crucial to all parties. Unless the applicant believes a claim that is not cognizable in Texas court will be reviewed on the merits in federal court, or may one day be cognizable, raising claims that are not cognizable is probably a futile exercise in state court. The Court of Criminal Appeals has struggled with these issues for the past 40 years. For some time, the Court treated convictions that were had in violation of due process as “void,” under a theory that the trial court lacked jurisdiction. Ex parte Van Truong, 770 S.W.2d 810, 813 (Tex. Crim. App. 1989). These cases have mostly been abrogated by more recent decisions, but they make parsing through older cognizability cases challenging for newer practitioners who are used to more limited conceptions of voidness and jurisdictional problems. As it stands, when it comes to challenging the validity of the conviction or sentence (rather than raising parole issues or pursuing out-of-time appellate proceedings), habeas review is reserved for jurisdictional and constitutional claims that were not available at the time of trial and appeal. Mike Stauffacher’s “coulda shoulda woulda” principle is helpful to remember: if a claim could have been raised before the conviction was final, it is probably not available for merit review on post-conviction habeas corpus. A. Cognizability Generally “Traditionally, habeas corpus is available to review jurisdictional defects, or denials of fundamental or constitutional rights. The Great Writ should not be used to litigate matters which should have been raised on appeal.” Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989) (opinion on rehearing) (internal citations omitted). Issues that were raised and rejected on direct appeal need not be addressed on habeas corpus. Ex parte Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App. 1984).17 Claims that should have been raised on appeal cannot be raised on habeas corpus. Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989). Banks 17
This rule does not have such straightforward application to ineffective assistance of counsel claims, which can sometimes be re-litigated on habeas corpus. Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004); Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).
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was arguably limited to statutory claims. Id. But “[e]ven a constitutional claim is forfeited if the applicant had the opportunity to raise the issue on appeal.” Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004). Townsend is based on the “adequate remedy at law” requirement underpinning all Texas extraordinary writs. In that case, the issue could have been raised on appeal. Issues that were raised and correctly denied in previous habeas corpus proceedings will be summarily denied. Ex parte Twyman, 716 S.W.2d 951, 952–53 (Tex. Crim. App. 1986).18 These cases foreclose most “record” claims from habeas review. If the issue or claim could have been litigated earlier and was not, it cannot be raised. If it was litigated, it may not be re-litigated on habeas. And if the applicant waived trial and pleaded guilty, the Court typically believes those waivers also waived the availability of most record claims that could have been raised. This means Fourth Amendment and Miranda claims are not available on habeas corpus. Ex parte Kirby, 492 S.W.2d 579 (Tex. Crim. App. 1973) (failure to raise sufficiency of a search warrant affidavit on appeal was tantamount to abandonment of the claim. The case is routinely cited for the proposition that search and seizure claims cannot be raised on their own in post-conviction habeas); Ranson v. State, 707 S.W.2d 96 (Tex. Crim. App. 1986) (failure to raise problems with confession due to proof of Miranda warnings at trial waived those objections). Errors based on the Texas Constitution that are subject to harm analysis are not cognizable in a postconviction writ of habeas corpus brought under Article 11.07. Ex parte Dutchover, 779 S.W.2d 76, 79 (Tex. Crim. App. 1989) (citing Ex parte Truong, 770 S.W.2d 810 (Tex. Crim. App. 1989)). Violations of procedural statutes, even mandatory ones, are not cognizable on habeas corpus. McCain v. State, 67 S.W.3d 204, 205 (Tex. Crim. App. 2002); Ex parte Douthit, 232 S.W.3d 69 (Tex. Crim. App. 2007). The longstanding rule is that sufficiency of the evidence is not cognizable on habeas corpus. Ex parte Easter, 615 S.W.2d 719 (Tex. Crim. App. 1981). However, a claim of “no evidence” is cognizable. Ex parte Perales, 215 S.W.3d 418 (Tex. Crim. App. 2007) (citing Ex parte Coleman, 599 S.W.2d 305 (Tex. Crim. App. 1978)). Indictment claims must be raised before trial and failure to object waives the complaint. Ex parte Gibson, 800 S.W.2d 548 (Tex. Crim. App. 1990). Jurisdiction is no longer contingent on whether the indictment contains defects of form or substance, and an indictment charging a person with an offense typically invokes a trial court’s jurisdiction. Teal v. State, 230 S.W.3d 172, 177 (Tex. Crim. App. 2007). Nevertheless, the Court has said an indictment claim is cognizable if the applicant shows the indictment was so deficient that it did not vest the trial court with jurisdiction. Ex parte Reedy, 282 S.W.3d 492, 502 (Tex. Crim. App. 2009); But see Ex parte Rodgers, 598 S.W.3d 262, 268 (Tex. Crim. Proc. 2020) (observing that because there was no objection to the indictment, the applicant could “not now challenge its efficacy to invoke the jurisdiction of the district court.”). Prisoners are particularly fond of the claim that the judge did not take the required oath or place the oath on file at the time of trial. The longstanding law holds that the judge’s right to the office is not subject to collateral attack. Snow v. State, 134 Tex. Crim. 263, 266, 114 S.W.2d 898, 900 (1937). Finally, litigants should remember that habeas corpus claims should implicate the fact or duration of confinement. For this reason, claims challenging attorney fees are not the proper subject of post-conviction 18
In Tyman, the Court specifically noted that the claims were correctly denied in the prior writ application. The remedy for claims that were incorrectly denied is probably a suggestion to reconsider on the Court’s own motion rather than another writ application.
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habeas corpus. Ex parte Knight, 401 S.W.3d 60 (Tex. Crim. App. 2013). B. Cognizable claims i. Ineffective Assistance of Counsel and Strickland v. Washington Ineffective assistance claims are probably the most frequently litigated claim on post-conviction habeas corpus. Perhaps this is because these claims allow the merits of claims that might otherwise be barred from review to be litigated, albeit in secondhand fashion. What follows is a brief review of the contours of Texas ineffective assistance of counsel law. The Sixth Amendment “right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). Ineffective assistance claims based on Article I, Section 10 of the Texas Constitution do not enjoy greater protection for the defendant than the protection provided by Strickland and the Sixth Amendment. Hernandez v. State, 726 S.W.2d 53, 56 (Tex. Crim. App. 1986). 1. The Strickland Standard Consideration of most ineffective assistance claims is governed by the Strickland v. Washington case. The exceptions are set forth later in this section and include situations where the applicant was denied counsel altogether, when counsel had a conflict of interest, and when counsel’s errors deprived the applicant of a proceeding. Strickland is a landmark opinion and it is full of guidance beyond the standard it sets forth. Even practitioners familiar with the case should re-read it from time to time. For a successful ineffective assistance claim, the applicant must show that counsel erred and that the error prejudiced the applicant. The Supreme Court said it this way: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless the defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 693 (1984). 2. Deficient Performance Courts must measure counsel’s performance by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 692–93. Judicial scrutiny of counsel’s performance should be “highly deferential,” and eliminate hindsight with a focus on evaluating the conduct from counsel’s perspective. Id. at 694. Review of ineffective assistance claims must strongly presume that counsel’s conduct was undertaken within the “wide range of professional assistance,” so the defendant must overcome the presumption that the conduct under the circumstances might be considered sound trial strategy. Id. at 694–95. Obviously, the crucial aspect of showing attorney error is demonstrating that counsel actually erred. Two common claims are that counsel did not object and that counsel did not discover and present helpful evidence or testimony. “To show ineffective assistance of counsel for the failure to object during trial, the applicant must show that the trial judge would have erred in overruling the objection.” Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (citing Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App.
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1996)). To show that counsel erred in not calling witnesses, the applicant must show that the witnesses were available, and that the applicant would have benefitted from their testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (citing Hunnicutt v. State, 531 S.W.2d 618 (Tex. Crim. App. 1976)). Counsel’s alleged legal errors must be judged on the state of the law at the time of the action. The Court will not “find counsel ineffective for failing to take a specific action on an unsettled issue.” State v. Bennett, 415 S.W.3d 867, 869 (Tex. Crim. App. 2013). Ineffective assistance claims are judged by the “prevailing law” at the time of the habeas application, so if the law that made counsel ineffective at the time of the trial has changed, the applicant will no longer be entitled to relief based on counsel’s errors. Ex parte Butler, 884 S.W.2d 782 (Tex. Crim. App. 1994) (citing Lockhart v. Fretwell, 506 U.S. 364 (1993)). Applicants sometimes point to incidents of professional misconduct to bolster their claims. This is usually unavailing. “A finding of professional misconduct based on other matters as well as actions of counsel at trial should have no bearing on a subsequent Article 11.07 . . . proceedings alleging solely the ineffective assistance of counsel at trial. We decline to discuss such matter as an abstract subject.” Ex parte Raborn, 658 S.W.2d 602, 604 (Tex. Crim. App. 1983). 3. Strickland Prejudice My experience is that advocates often expend a disproportionate effort into disputes over whether counsel erred and then rely on the gravity of the purported error to influence a decision about prejudice. But ineffective assistance claims most often rise or fall on the prejudice prong, and that is how they are often resolved. In Strickland, the Supreme Court specifically said that “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland v. Washington, 466 U.S. 668, 697 (1984). To meet this burden, the applicant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. at 694. Though advocates and courts often think of this in “but for” causation shorthand, that overstates the burden. The Supreme Court specifically disclaimed reliance on a “more likely than not” standard that would be “outcome-determinative. Id. at 693.19 The trial facts matter, and the successful applicant must delve into them. Naturally, “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id. at 696. When the alleged attorney error happened during the punishment phase of trial, the harm inquiry focuses on that phase of the case. The applicant “must prove that there is a reasonable probability that, but for counsel’s errors, the sentencing jury would have reached a more favorable verdict.” Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim. App. 2012) (quoting Ex parte Cash, 178 S.W.3d 816, 818 (Tex. Crim. App. 2005)). When assessing the nature of the harm in an ineffective assistance of trial counsel claim, the harm inquiry almost always looks to how things might have played out in the trial proceedings. Parties often argue, for instance, whether counsel’s failure to object prevented a meritorious appellate issue from being preserved. But to prove ineffective assistance of counsel based on counsel’s missed objection, the applicant 19
Though the Court of Criminal Appeals generally adheres to a preponderance of the evidence standard in postconviction habeas (except for innocence claims), litigants must remember that the Supreme Court’s Strickland standard specifically states that “[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984).
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must show that the judge would have erred to overrule the objection. Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004). This is essential for determining whether counsel erred, but it also assumes meritorious objections are sustained, meaning that the prejudice inquiry then looks to how the trial would have unfolded with a successful objection. White, 160 S.W.3d 46, at 53–54. How the issue would have fared on appeal only becomes relevant when counsel objected, was overruled, and did not renew the objection, leaving the trial court’s error unpreserved for appeal. In that situation, the harm inquiry asks whether the issue would have been successful on appeal. Ex parte Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013). With the exception of “Cronic Cases,” discussed below, the nature of the attorney error does not typically affect the harm inquiry in ineffective assistance of counsel claims. Though counsel may have erred in not objecting to an issue that was “structural error,” the claim could still be subject to the usual Strickland error inquiry, depending on the kind of structural error at issue. See Weaver v. Massachusetts, 137 S. Ct. 1899 (2017) (holding that failure to object to public trial violation did not lead to automatic harm in an ineffective assistance claim, but distinguishing between different kinds of structural error). 4. Ineffective Assistance at Guilty Pleas The Court of Criminal Appeals has long entertained claims of ineffective assistance of counsel in guilty plea cases. Ex parte Bratchett, 513 S.W.2d 851 (Tex. Crim. App. 1974). In the guilty plea situation, the prejudice inquiry focuses on whether counsel’s errors caused an involuntary plea. To make this showing, the “defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999). This means that the applicant should address how counsel’s alleged error influenced the decision to plead guilty and, why, in view of the error, trial would have been the choice. For instance, in Lockhart, the issue related to parole eligibility, and the Court noted that applicant “alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty.” Hill v. Lockhart, 474 U.S. 52, 60 (1985). The Court observed that when the counsel error involves failure to investigate or discover exculpatory evidence, the prejudice assessment will sometimes depend in part on the likelihood of success the applicant would have found at trial. Hill v. Lockhart, 474 U.S. at 59–60. However, in Lee, the applicant proved that immigration consequences were of paramount importance in his decisions, and the Court found that his plea was involuntary despite “grim” prospects for acquittal or a shorter sentence at trial. Lee v. United States, 137 S. Ct. 1958 (2017). Claims relating to counsel’s ineffectiveness in the plea bargaining process face a slightly higher burden in Texas after the Supreme Court decided a pair of companion cases.20 Following the Supreme Court’s lead, the Court of Criminal Appeals adjusted its standard, holding that to show prejudice when the applicant was not made aware of a plea offer or rejected one based on bad advice, “the applicant must show a reasonable probability that: (1) he would have accepted the earlier offer if counsel had not given ineffective assistance; (2) the prosecution would not have withdrawn the offer; and (3) the trial court would not have refused to accept the offer.” Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). 5. Ineffective Assistance of Appellate Counsel To show that appellate counsel was ineffective, the applicant must demonstrate that counsel erred, and that but for the error, the applicant “would likely have prevailed on appeal.” Ex parte McFarland, 163 S.W.3d 743, 748 n.2 (Tex. Crim. App. 2005). Pro se litigants often cite many grounds that appellate counsel should have raised. However, appellate counsel is not under an obligation to raise every colorable claim suggested by the client. Jones v. Barnes, 463 U.S. 745, 754 (1983). “[T]he ‘process of winnowing out weaker claims on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Burger v. Kemp, 20
Missouri v. Frye, 566 U.S. 134 (2012); Lafler v. Cooper, 566 U.S. 156 (2012).
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483 U.S. 776, 784 (1987) (quoting Jones v. Barnes, 463 U.S. 745, 751–52 (1983)). 6. Cronic The harm analysis is short circuited when there is an “actual breakdown of the adversarial process” in a case. The Supreme Court suggested that in situations where the “process loses its character as a confrontation between adversaries, the [Sixth Amendment] constitutional guarantee is violated,” and no inquiry into harm is necessary. United States v. Cronic, 466 U.S. 648, 656–59 (1984). The Court observed that this was the case when the accused is denied counsel at a critical stage, when counsel “fails to subject the prosecution’s case to meaningful adversarial testing,” when counsel was “denied the right of effective cross examination,” and when the “surrounding circumstances made it so unlikely that any lawyer could provide effective assistance.” Cronic, 466 U.S. at 659–61. Winning Cronic cases are rare. A lawyer who practiced while his license was suspended for failure to respond to grievances was not incompetent as a matter of law, however, it remains a possibility under different circumstances of suspension. Cantu v. State, 930 S.W.2d 594, 603 (Tex. Crim. App. 1996). “[A] defendant is denied counsel not only when his attorney is physically absent from the proceeding, but when he is mentally absent as well, i.e., counsel is asleep, unconscious, or otherwise actually non compos mentis.” Ex parte McFarland, 163 S.W.3d 743, 752 (Tex. Crim. App. 2005). When the applicant was represented by two lawyers, one of whom slept during trial, the Court found no Cronic violation when he “did have the constant, actual and active participation of a second lawyer,” though the participating lawyer was less experienced. McFarland, 163 S.W.3d at 753. 7. Ineffective Assistance Due to Conflicts of Interest When the applicant “shows that a conflict of interest actually affected the adequacy of his representation,” no showing of prejudice is necessary. Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). The Court of Criminal Appeals has recently affirmed that Cuyler controls the harm analysis in ineffective assistance claims based on a conflict. The Court said that “the proper standard by which to analyze claims of ineffective assistance of counsel due to a conflict of interest is the rule set out in Cuyler v. Sullivan, that is, the appellant must show that his trial counsel had an actual conflict of interest, and that the conflict actually colored counsel’s actions during trial.” Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim. App. 2007). “An ‘actual conflict of interest’ exists if counsel is required to make a choice between advancing his client’s interest in a fair trial or advancing other interests (perhaps counsel’s own) to the detriment of his client’s interest.” Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1994) (citing James v. State, 763 S.W.2d 776, 779 (Tex. Crim. App. 1989)). ii. Out of Time Appeals and PDRs Attorney errors that cause the applicant to be deprived of an entire proceeding are subject to a different analysis. The applicant must show that due to counsel’s errors, “he was deprived of that proceeding and that he would have availed himself of the proceeding had his counsel’s conduct not caused a forfeiture.” Ex parte Owens, 206 S.W.3d 670, 674 (Tex. Crim. App. 2006). The applicant need not show that the proceeding would have ended with a favorable outcome. Id. at 673–74. Anyone who follows the Court of Criminal Appeals knows that this is by far the most common grant of habeas corpus relief in state court. 1. Direct Appeal Trial counsel, retained or appointed, has the duty to consult with the client about any appellate rights and to perfect appeal, if necessary. The Court summed it up this way: Trial counsel’s responsibilities consist of a two-step process. First, the attorney must ascertain whether the defendant wishes to appeal. The decision to appeal lies solely with the defendant, and the attorney’s duty is to advise him as to the matters described above. If the defendant does not wish to appeal, trial counsel’s representation ends. If the defendant decides to appeal, the attorney must ensure that written notice of appeal is filed with the trial court. At this point, trial counsel has two options. He may sign the notice
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himself, in which case, he effectively ‘volunteers’ to serve as appellate counsel. Alternatively, the defendant may file the notice pro se, which serves as “an indication that trial counsel does not wish to pursue his client’s appeal. A ‘contemporaneous’ presentation of the pro se notice with a motion to withdraw by trial counsel serves as actual notice to the trial court of the defendant’s desire to appeal. Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003) (internal citations omitted). “[T]hat retained counsel did not intend to handle the resultant appeal does not justify his failing to assist his allegedly indigent client in giving notice of appeal.” Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988). A defendant may waive appeal as part of a plea bargain, and the Court has held that a defendant may knowingly and intelligently waive his entire appeal as part of a plea, even when sentencing is not agreed upon, where consideration has been given for the waiver. Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009). A recent Supreme Court case concluded that when a defendant expressed a desire to appeal after an appellate waiver and counsel did not then perfect appeal, prejudice would be presumed without regard to the merits of the eventual appeal. Garza v. Idaho, 139 S. Ct. 738 (2019). A recent Court of Criminal Appeals case applied this holding to Texas practice. In Castillo, Applicant pleaded guilty as part of a plea bargain and the certification of the right to appeal reflected that he had no right to appeal. The record showed that he wanted to appeal and counsel did not perfect appeal. The Court recognized Garza’s holding that a lawyer has a duty to perfect appeal upon request despite a waiver of appeal and observed that if the certification form only stated that he had waived his right to appeal, Garza would control. However, the Court held that Applicant never had a right to appeal to begin with and “all possible appellate claims were barred” in the case, and so counsel’s failure to perfect appeal did not prejudice the applicant. Ex parte Castillo, __ S.W.3d __, No. WR-90,880-02 (Tex. Crim. App. Oct. 12, 2022). 2. Out of Time Petition for Discretionary Review Appellate counsel has a duty to timely inform an appellant of the appellate decision and of the right to pursue discretionary review pro se. Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). Informing the appellant the conviction was affirmed on appeal without informing of the right to pursue a pro-se petition for discretionary review (PDR) is insufficient. Ex parte Florentino, 206 S.W.3d 124 (Tex. Crim. App. 2006). This duty also extends to lawyers who filed an Anders brief. Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006). Of course, retained PDR counsel is ineffective when PDR deadlines are missed, also resulting in an out-of-time PDR. In cases where counsel was not ineffective, but a “breakdown in the system” caused the loss of a PDR, due process requires that the appellant be permitted to exercise his statutory right to file a PDR. Ex parte Riley, 193 S.W3d 900 (Tex. Crim. App. 2006). This holding is routinely applied to out-oftime appeal situations as well. The Rules of Appellate Procedure specify the steps appellate lawyers must take when a conviction is affirmed on appeal. The lawyer must, within five days of the opinion’s release, send the client a copy of the opinion and notification of the right to file a pro-se PDR. The notification must be sent to the defendant by certified mail, return receipt requested, and the lawyer must send the appellate court a letter certifying compliance with the rule with a copy of the return receipt. Tex. R. App. P. 48.4. The Rule has been in place for well over a decade, but the Court still sees valid out-of-time PDR claims based on counsel errors on a weekly basis. The Court has not yet said that failure to comply with Rule 48.4 is prima facie evidence of attorney error.
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iii. Suppression of Exculpatory Evidence Brady claims are appropriately raised in post-conviction habeas corpus because they implicate a constitutional right and require suppressed evidence, which was necessarily unavailable at the time of trial. Untimely disclosure of exculpatory evidence that is discovered at the time of trial proceedings can and should be litigated at trial and on appeal. If trial court litigation of belated discovery was impossible for some reason, the habeas applicant should acknowledge the issue and argue it. 1. Brady Basics The Supreme Court provided a good summary of Brady law in 1999, laying out the basic points with citations to many of the Court’s foundational Brady decisions. Justice Stevens wrote: In Brady this Court held ‘that the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ Brady v. Maryland, 373 U.S. 83, 87 (1963). We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and that the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 (1985). Such evidence is material ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ Id. at 682; see also Kyles v. Whitley, 514 U.S. 419, 433–34 (1995). Moreover, the rule encompasses evidence ‘known only to police investigators and not to the prosecutor.’ In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’ Kyles, 514 U.S. at 437. Strickler v. Greene, 527 U.S. 263, 280–81 (1999). Just as the knowledge of police investigators is imputed to all prosecutors, the knowledge of one prosecutor is imputed to others who may work on the case in the future. In Giglio, the grand jury prosecutor made a promise to a co-conspirator that if he testified before the grand jury and at trial, he would not be prosecuted. Other prosecutors did not know about this and he testified at trial that nobody told him he wouldn’t be prosecuted. Giglio v. U.S., 405 U.S. 150, 151–54 (1971). “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999). The State’s constitutional duty to preserve evidence is limited to that which could be expected to play a significant role in the defense of the case. Rejecting an argument that the State should have preserved breath samples, the Supreme Court has held that to meet this materiality standard, “the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means” Cal. v. Trombetta, 467 U.S. 479, 488–89 (1984) (internal citations omitted). “[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Ariz. v. Youngblood, 488 U.S. 51, 58 (1988). 2. Impeachment and Guilty Pleas Though material impeachment evidence is Brady evidence that must be disclosed before a trial, the Constitution does not require its disclosure before a guilty plea. United States v. Ruiz, 536 U.S. 622, 633 (2002). Therefore, an applicant who pleaded guilty and raises a Brady claim based on the failure to disclose impeachment evidence will probably not prevail on that claim. 3. Materiality The “materiality” test for Brady cases is based on the ineffective assistance of counsel
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prejudice test from Strickland, which was handed down a year before the Bagley opinion. All parties must understand it—the applicant must frame the argument in its terms and the State (and judges) must remember that the test is not a “but for” test, and that it may not be administered with a view to the sufficiency of the evidence. “Bagley’s touchstone of materiality is a ‘reasonable probability’ of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a different result is accordingly shown when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Kyles v. Whitley, 514 U.S. 419, 434 (1995). It is not the applicant’s burden to prove there would have been an acquittal in view of the exculpatory evidence. A Brady violation is proven “by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 434–35. Suppressed evidence should be considered collectively, not item by item, and courts should resist making independent materiality evaluations and should look to a cumulative evaluation. Kyles, 514 U.S. at 436, 441. Evidence is material “when there is ‘any reasonable likelihood’ it could have ‘affected the judgment of the jury,’” and to prevail on a Brady claim, the applicant does not need to show the new evidence would have resulted in an acquittal, but “only that the new evidence is sufficient to ‘undermine confidence’ in the verdict.” Wearry v. Cain, 577 U.S. 385, 392 (2016) (internal citations omitted). Like ineffective assistance claims, the battle of Brady claims is often focused on the culpability of the State and the alleged devilry of the prosecutor or police officer who buried exculpatory evidence. Of course, the applicant must show that the evidence was suppressed, but I believe the real fight should usually be over materiality. Applicants must focus their energy on the materiality argument and might consider looking at Supreme Court decisions focusing on materiality to emulate the analysis. Kyles and Strickler both provide excellent examples of materiality analysis.21 iv. False Evidence False evidence claims have long been cognizable but following the Court’s expansion of the claim’s availability in its Chabot decision, Texas false evidence jurisprudence has been particularly active. In Chabot, the Court held that false evidence violates due process when it contributes to a conviction or punishment, irrespective of the State’s knowledge of the perjury or falsehoods at the time of trial. Napue v. Illinois, 360 U.S. 264, 269 (1959); Ex parte Chabot, 300 S.W.3d 768, 771–72 (Tex. Crim. App. 2009). The Court concluded that, though the case involved unknowing rather than knowing use of testimony, there was no reason to use different harm standards. Ex parte Chabot, 300 S.W.3d 768, 771–72 (Tex. Crim. App. 2009). Following Chabot, the applicable standard was the subject of some dispute, with arguments that different burdens should apply depending on the State’s (or witness’s) culpability and the prior availability of the claim. Ex parte Chavez, 371 S.W.3d 200 (Tex. Crim. App. 2012) (Keller, P.J., dissenting). However, the Court appeared to settle on a straightforward standard in Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014). The Court requires that testimony be false and material. Materiality is necessary to make a due process violation, and testimony is material only when “there is a ‘reasonable likelihood’ that the false testimony affected the judgment of the jury. The applicant must still prove his habeas corpus claim by a preponderance of the evidence, but in doing so, he must prove that the false testimony was material and thus it was reasonably likely to influence the judgment of the jury.” Weinstein, 421 S.W.3d at 665.
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In Kyles, the applicant prevailed, and in Strickler, the State prevailed.
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In false evidence cases following a guilty plea, the applicant faces the same situation raised by an ineffective assistance claim. The proof must show that, with knowledge the evidence was false, the applicant would have insisted on going to trial. The false evidence is “material” when the applicant would have chosen a trial. Ex parte Barnaby, 475 S.W.3d 316 (Tex. Crim. App. 2015). v. Article 11.073 This recent addition to the Code of Criminal Procedure makes explicit that changes in scientific evidence will be cognizable on post-conviction habeas corpus. It codifies (and arguably expands) part of the Court’s false evidence jurisprudence and applies to “relevant scientific evidence” that was not available at the trial or contradicts scientific evidence the State relied on at trial. Tex. Code Crim. Proc. art. 11.073(a). It says that a court “may grant” relief if a post-conviction writ alleges that admissible, relevant scientific evidence is available that was not available at the time of trial through the exercise of reasonable diligence and that had it been presented at trial, on the preponderance of the evidence, the person would not have been convicted. Tex. Code Crim. Proc. art. 11.073(b). It also specifies that when deciding whether relevant scientific material was not previously ascertainable through reasonable diligence, the court “shall consider whether the field of scientific knowledge, a testifying expert’s scientific knowledge, or a scientific method on which the scientific evidence is based has changed since” the trial or the time a prior writ was filed. Tex. Code Crim. Proc. art. 11.073(d). The Court has held that a medical examiner who no longer stood by a prior opinion and testimony about cause of death constituted “scientific knowledge” under the statute. Ex parte Robbins, 478 S.W.3d 678 (Tex. Crim. App. 2014).22 Similarly, new DNA technology (Y-STR) has resulted in 11.073 relief on an 11.07 application. Ex parte Kussmaul, 548 S.W.3d 606 (Tex. Crim. App. 2018). Finally, the Court agreed that evolving scientific knowledge underlying the field of bitemark comparisons contradicted scientific evidence relied on at trial. Ex parte Chaney, 563 S.W.3d 239, 257–61 (Tex. Crim. App. 2018). The statute contains its own language relating to subsequent writs, clarifying that a claim could not have been presented in a prior writ if it is based on scientific evidence that was not ascertainable by reasonable diligence on or before the date of filing the prior writ. Tex. Code Crim. Proc. art. 11.073(c). The article itself provides a new legal basis for false evidence claims that were rejected prior to its enactment “in the small number of cases where the applicant can show by the preponderance of the evidence that he or she would not have been convicted if the newly available scientific evidence had been presented at trial.” Ex parte Robbins, 478 S.W.3d 678, 690 (Tex. Crim. App. 2014); Ex parte Kussmaul, 548 S.W.3d 606, 633 (Tex. Crim. App. 2018). The Court has granted relief under Article 11.073 to applicants who pleaded guilty. Ex parte Kussmaul, 548 S.W.3d 606, 634–36 (Tex. Crim. App. 2018). However, litigants should be aware that Article 11.073 does not apply to evidence adduced at the punishment phase of a trial because the statutory language conditions relief upon whether the person would not have been “convicted.” Ex parte White, 506 S.W.3d 39 (Tex. Crim. App. 2016). The legislature has yet to correct this (if it is a bug in the statute), but litigants may still attempt to lodge false evidence claims for punishment evidence in lieu of expansion of 11.073’s applicability. See Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011) (new punishment hearing granted based on false evidence). vi. Actual Innocence Like Texas false evidence jurisprudence, its actual innocence jurisprudence is recent. For lawyers licensed since the mid 90s, it’s almost impossible to conceive that innocence was once manifestly not relevant on habeas. The principle that habeas corpus was not concerned with guilt or innocence or “newly discovered evidence” was part of the bedrock of our law. Ex parte Binder, 660 S.W.2d 103, 106 (Tex. Crim. App. 1983). The theory was that these were issues to be raised with the Governor (or 22
This pre-dated amendments to Article 11.073 that have since codified the holding.
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President) in pursuit of executive clemency. In 1993, the Supreme Court (reviewing a Texas death penalty case) assumed for the sake of argument without deciding that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional . . .” Herrera v. Collins, 506 U.S. 390, 417 (1993). The Supreme Court still has not held that a showing of actual innocence is a matter of constitutional concern. However, the Court of Criminal Appeals decided that it is “clear . . . that the incarceration of an innocent person is as much a violation of the Due Process Clause as is the execution of such a person. It follows that claims of actual innocence are cognizable by this Court in a postconviction habeas corpus proceeding whether the punishment assessed is death or confinement.” Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). 1. The Newly Discovered Evidence Innocence Standard Actual innocence claims carry a higher burden of proof than all other post-conviction habeas corpus claims: the applicant must prove the claim by clear and convincing evidence rather than a preponderance. The standard announced in Elizondo in 1996 applies today. “In the case of a Herrera-type claim of actual innocence [in which newly discovered evidence proves innocence], the petitioner must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.” Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996). A guilty plea does not prevent or bar applicants from asserting and proving innocence. Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002). First, a court evaluates whether the applicant has provided newly discovered evidence of innocence, then it applies the evidentiary test. The first step requires applicants to attach the evidence to the writ application, which must be newly discovered and must prove innocence. Losing innocence claims most often fail because they rely on evidence that is not newly discovered or does not prove innocence. The “newly discovered” requirement means that the evidence of innocence must truly be newly discovered. “Newly discovered evidence refers to evidence that was not known to the defendant at the time of the trial and could not have been known to him even with the exercise of due diligence. He cannot rely upon evidence or facts that were available at the time of his trial, plea, or post-trial motions, such as a motion for new trial.” Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006). However, in some circumstances, evidence may have existed, but was, for all intents and purposes, unavailable. Ex parte Calderon, 309 S.W.3d 64 (Tex. Crim. App. 2010). For the newly discovered evidence to prove innocence, it must be “affirmative” evidence that contradicts inculpatory evidence. For instance, impeachment evidence, even when newly discovered and compelling, typically only collaterally affects the strength of the accusations. Ex parte Franklin, 72 S.W.3d 671, 677–78 (Tex. Crim. App. 2002). The Court has refined the actual innocence framework, clarifying that it is “fact and conduct-centric” in rejecting an innocence claim based on conviction under an unconstitutional statute. Ex parte Fournier, 473 S.W.3d 789 (Tex. Crim. App. 2015). The Court observed that the conduct upon which the prosecution was premised “still exists as a matter of historical fact,” and the constitutionality of the statute is irrelevant as to whether the conduct was committed. Fournier, 473 S.W.3d at 793. Once newly discovered affirmative evidence of innocence is provided, then the court applies the standard to determine whether it satisfies Elizondo.
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2. Pleading the Case Applicants must focus on the new evidence of innocence and put forward a cohesive theory of innocence. Ex parte Reed, 271 S.W.3d 698, 746 (Tex. Crim. App. 2008). The applicant must focus on any inculpatory evidence and explain why it does not matter, or how the innocence evidence affects it. You must work with the standard: “The task is to assess the probable impact of the newly available evidence against the persuasiveness of the state’s evidence as a whole . . . one must necessarily weigh such exculpatory evidence against the evidence adduced at trial.” Ex parte Elizondo, 947 S.W.2d 202, 206 (Tex. Crim. App. 1996). “Our job is not to review the jury’s verdict but to decide whether the newly discovered evidence would have convinced the jury of applicant’s innocence.” Elizondo, 947 S.W.2d at 207. Applicants cannot just dispute the facts, which risks transforming an innocence claim into a sufficiency claim. 3. Recantations The most common and most fraught innocence cases involve recantations by complaining witnesses. If you have a recantation case that is at all serious, the Court of Criminal Appeals will almost certainly not decide it without a live hearing at which the recanting witness testifies followed by credibility findings made by the fact finder who witnessed the testimony. Litigants must be aware of recantation cases like Harleston, where the Court of Criminal Appeals rejected the trial court’s credibility findings based on how the recantations meshed with each other and the established record. Ex parte Harleston, 431 S.W.3d 67 (Tex. Crim. App. 2014). Lawyers representing applicants must master the whole record and advance a unified theory of innocence. “Newly discovered evidence that merely ‘muddies the waters’ and only casts doubt on an applicant’s conviction, such as the multiple recantations and repudiations in this case, is insufficient to prevail in a free-standing actualinnocence claim because that evidence does not affirmatively establish an applicant’s factual innocence by clear and convincing evidence.” Harleston, 431 S.W.3d at 89. 4. “Hybrid” Innocence Claims A successful innocence claim does not necessarily require a single “silver bullet” of evidence to prove innocence. The Court has decided a series of cases that fell apart based on shards of evidence that, when put together with the established facts of a case, proved innocence. In Ex parte Miles, a freedom of information request began the process of the disintegration of a Dallas County murder case. Ex parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2012). The renowned “San Antonio 4” case involved a complainant’s recantation, expert witness recantation, contextual evidence of prior false accusations, and new expert opinions. Ex parte Mayhugh, 512 S.W.3d 285 (Tex. Crim. App. 2016) (plurality) (majority vote for innocence). 5. Using New Science to Prove Innocence Advances in science and technology will be considered to determine whether evidence is newly available or newly discovered, but only if the evidence being tested is the same as it was at the time of the offense. So, the science or method of testing can be new, but the evidence must be susceptible to testing in the same state as it was at the time of the offense. Ex parte Spencer, 337 S.W.3d 869, 879 (Tex. Crim. App. 2011). This was fatal to the applicant’s case in Spencer. A forensic visual science expert testified that it was physically impossible for the witnesses to make a facial identification in the case, but the Court found that there was no way to replicate the crime scene as it existed at the time because it had undergone changes in the 16 years since the crime. 6. Innocence and Sex Offender Registration The Court has arguably extended the availability of innocence claims to sex offender registration. In Harbin, the applicant claimed he did not have a duty to register as a sex offender for the predicate offenses in the indictment. Ex parte Harbin, 297 S.W.3d 283 (Tex. Crim. App. 2009). The Court held that he had no duty to register because neither offense listed was eligible as reportable offenses. 7. Guilt for Lesser Offenses The Court decided that “innocence” was not the appropriate terminology when
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the issue in play is not actual innocence, but whether the applicant is guilty of a different offense. It concluded it would interpret a claim of innocence to mean “guilty only of” a lesser-included offense and “ineligible for” the sentence assessed. State v. Wilson, 324 S.W.3d 595 (Tex. Crim. App. 2010). The Court applied Wilson when, after his guilty plea, an applicant learned that he did not possess the controlled substances after all. Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014). Applying Wilson, the Court found it was possible he intended or attempted to possess a controlled substance, so actual innocence could not apply. The Court granted relief based on involuntary plea in Mable, but if the applicant could disprove any intent to possess any substance, perhaps the door to actual innocence could still be open in a different case. 8. Schlup and “Procedural Innocence” A Schlup claim of innocence is distinguished from a Herrera (or Elizondo) claim because it is a procedural vehicle to have barred constitutional claims heard on a federal writ. The claim for relief requires evidence of innocence, but “depends critically” on the validity of the constitutional claims. The innocence claim is not the constitutional claim, but a “gateway” through which the habeas applicant must pass to have otherwise barred constitutional claims considered on the merits. Proof of innocence establishes a miscarriage of justice significant enough to reach the merits of the barred claim. The Supreme Court wrote, “if a petitioner such as Schlup presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims.” Schlup v. Delo, 513 U.S. 298, 316 (1995). Schlup is not specifically relevant in Texas habeas practice, except insofar as it is the apparent basis for the codification of an exception for subsequent applications. Tex. Code Crim. Proc. arts. 11.07 § 4(a)(2); 11.071 § 5(a)(2). Section 4(a)(2) is discussed earlier in the paper for the role it plays in subsequent writ applications. As noted, the applicant must accompany these claims with evidence of innocence sufficient to make a prima facie innocence claim. Ex parte Brooks, 219 S.W.3d 396 (Tex. Crim. App. 2007). As addressed in greater detail in the subsequent writ discussion, double jeopardy claims have thus far had the most success under this theory. “Procedural innocence” claims are generally not appropriately raised in an initial habeas corpus application because they depend upon procedurally barred constitutional claims. Ex parte Villegas, 415 S.W.3d 885 (Tex. Crim. App. 2013). The Court has not addressed whether an applicant may reach a procedurally barred constitutional claim on a first writ (for instance, a Fourth Amendment claim) with a prima facie showing of innocence. Perhaps Schlup’s rationale just does not apply to Texas cases except through the codified subsequent writ exception. See Ex parte Villegas, 415 S.W.3d 885, 887–88 (Tex. Crim. App. 2013) (Price, J., concurring) (observing that “[t]he truth of the matter is that there is really no such thing as a ‘Schlup actual innocence claim’ in Texas.”). 9. Tim Cole Act Compensation in Actual Innocence cases. Actual innocence relief is different from other varieties of habeas corpus relief. “A declaration of actual innocence, because of its impact on a defendant’s reputation, affords greater relief than merely granting a new trial.” Ex parte Reyes, 474 S.W.3d 677, 681 (Tex. Crim. App. 2015). A successful actual innocence claim can also lead to compensation for the time the applicant spent wrongly imprisoned. Tex. Civ. Prac. & Rem. Code § 103.001(a)(2)(B). To be compensated, the winning habeas applicant must file an application with the comptroller within three years of the grant of relief. Tex. Civ. Prac. & Rem. Code §§ 103.003(2), 103.051.23 Should the comptroller deny a claim, the “claimant may bring an action for mandamus relief.” Tex. Civ. Prac. & Rem. 23
Post-conviction actual innocence relief on habeas corpus is not the only path for someone pursuing compensation for wrongful incarceration under the Tim Cole Act. Tex. Civ. Prac. Rem. Code § 103.001(a)(2)(A) & (a)(2)(C).
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Code § 103.051(e). These claims must be litigated in the Texas Supreme Court as the Government Code vests that court with exclusive mandamus jurisdiction over officers of the executive departments of government. Tex. Gov’t. Code § 22.002(e). This has led to a separate (and much smaller) body of actual innocence case law from the Texas Supreme Court. Most notably, the Court issued mandamus to compel payment of actual innocence compensation to an applicant who was granted habeas corpus relief by the Court of Criminal Appeals, but not based on an actual innocence theory.24 Colton Lester was convicted of online solicitation of a minor based on actions that occurred after the Court of Criminal Appeals struck down the criminal statute that was the basis for his prosecution. On mandamus, the Supreme Court said, “[j]ust because existing actualinnocence jurisprudence does not contemplate something as outrageous as Lester’s case does not mean that Lester, who committed, no crime, is anything but actually innocent.” In re Lester, 602 S.W.3d 469, 473 (Tex. 2020). Therefore, “actual innocence under the Tim Cole Act encompasses Herrera claims, Schlup claims, and that ‘narrow class of cases’ in which the petitioner’s actions were not criminal at the time the acts were committed.” In re Lester, 602 S.W.3d 469, 475 (Tex. 2020). In a footnote, the Court added that the decision “concerns only the meaning of ‘actual innocence’ under the Tim Cole Act” and “does not encroach on the Court of Criminal Appeals’ criminal-law jurisdiction.” Lester, 602 S.W.3d at 474 n.2. vii. Involuntary Plea The most common (and successful) involuntary plea claim is typically tied in with an allegation of attorney error (discussed above). However, “true” involuntary plea claims are also cognizable. Applicants mounting an involuntary plea case must be prepared to show, if necessary, why the presumption of regularity attending to court records (typically reflecting comprehensive admonishments) does not defeat their claim. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1985). “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1969). A guilty plea entered by an applicant fully aware of the direct consequences must stand unless induced by threats, misrepresentation, or perhaps by improper promises. Ex parte Morrow, 952 S.W.2d 530, 534 (Tex. Crim. App. 1997) (quoting Brady v. U.S., 397 U.S. 742, 755 (1970)). Ignorance of direct consequences of guilty pleas that are non-punitive (such as the loss of the right to vote, the right to possess firearms, ineligibility for certain professional licenses, etc.) will not necessarily render an otherwise voluntary plea involuntary. Mitschke v. State, 129 S.W.3d 130, 135 (Tex. Crim. App. 2004). The Court has held that sex offender registration is non-punitive, so failure to admonish a defendant about registration consequences does not necessarily cause the plea to be involuntary. Mitschke, 129 S.W.3d at 136. The most recent developments in the Court’s involuntary plea jurisprudence have been fueled by widespread post-conviction drug testing following quick guilty pleas in Harris County. Post-plea drug testing there has turned up dozens of cases where defendants learned after their judicial confessions that, to the contrary, they possessed no controlled substances, different controlled substances, or a lesser quantity of controlled substances. The parties in Harris County have agreed to relief in most cases, but the appropriate legal framework for analyzing the cases is disputed at the Court of Criminal Appeals. One such applicant claimed he was actually innocent because post-plea testing showed that what he possessed was not illegal. Rejecting the innocence claim, the Court held instead that the plea was involuntary. Ex parte Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014). The Court determined that the parties’ mistaken belief that applicant possessed the drugs he was charged with possessing was a “crucial 24
Ex parte Lester, No. WR-88,227-01 (Tex. Crim. App. Apr. 11, 2018) (not designated for publication).
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fact” in the case, knowledge of which was necessary for a voluntary plea. Ex parte Mable, 443 S.W.3d at 131. Following Mable, the Court has found that the defendant’s ignorance that the seized substance was destroyed in a field test would not be sufficiently crucial to cause the plea to be involuntary. Ex parte Palmberg, 491 S.W.3d 804 (Tex. Crim. App. 2017). The Court came to the same conclusion when the defendant learned after his plea that the substance he possessed was a different substance but was listed in the same Penalty Group and carried the same punishment range. Ex parte Broussard, 517 S.W.3d 814 (Tex. Crim. App. 2017). The Court recently granted relief when the applicant pleaded guilty to methamphetamine possession, but later testing revealed he possessed methylethcathinone (which is in a different penalty group but carried the same punishment range in this case). However, the legal rationale for relief splintered the Court, with Judge Keasler arguing that relief was justified by due process concerns and that Mable should be overruled, while Judge Newell argued for Mable’s continued viability and applicability. Ex parte Saucedo, 576 S.W.3d 712 (Tex. Crim. App. 2019) (the opinion granting relief is unpublished, but litigants must understand the competing concerns on the Court expressed by the four published side opinions—three concurrences and one dissent). The dispute about Mable’s scope in light of Palmberg remains a live issue at the Court. Over Judge Yeary’s published dissent, the Court recently granted relief under Mable when DNA testing used to show contraband possession was inconclusive. See Ex parte Turner, 635 S.W.3d 682 (Tex. Crim. App. 2021) (Yeary, J., dissenting). viii. Illegal Sentence “An illegal sentence is one that is not authorized by law; therefore, a sentence that is outside the range of punishment authorized by law is considered illegal. A claim that a sentence is illegal because it exceeds the statutory maximum is cognizable in a writ of habeas corpus and may be raised at any time. Thus, Applicant’s claim that his sentence was illegally enhanced is cognizable even though he failed to raise that issue on direct appeal.” Ex parte Pue, 552 S.W.3d 226, 228 (Tex. Crim. App. 2018) (internal citations omitted); See also Ex parte Rodgers, 598 S.W.3d 262, 267 (Tex. Crim. App. 2020); Ex parte Parrott, 396 S.W.3d 531, 534 (Tex. Crim. App. 2013). Applicants who can successfully challenge the validity of an enhancement conviction cannot show an illegal sentence if they had other “spare” priors that could have been substituted as valid enhancements. Ex parte Parrott, 396 S.W.3d 531, 536–37 (Tex. Crim. App. 2013). When that spare (or “replacement conviction”) is “for a dissimilar, less reprehensible” conviction (replacing, for instance, an aggravated sexual assault with a felony theft), the Court will measure harm only by whether the sentence is within the allowable range of punishment and without regard to the role the facts of the subsequently disallowed conviction may have played in assessment of the sentence. Ex parte Hill, 632 S.W.3d 547, 558–59 (Tex. Crim. App. 2021). The Court recently extended Parrott’s logic to apply to “jurisdictional enhancements.” So if the prior convictions used to get a DWI prosecution into felony court turn out to be problematic, the applicant will not be able to prove an illegal sentence if the evidence shows there were “spare” prior convictions that could have been used in place of the convictions alleged in the indictment. Ex parte Rodgers, 598 S.W.3d 262, 269–70 (Tex. Crim. App. 2020). The Court often remands these cases for harm findings under Parrott. Applicants should confront this in their pleadings and prosecutors are well-served by pointing out harm problems in what would otherwise be facially valid illegal sentence claims based on problematic prior convictions used either for jurisdictional or punishment enhancement purposes. The Court recently faced a situation in which one of the convictions used to enhance a sentence had been vacated on post-conviction habeas corpus. Following the grant in the enhancement case, the applicant
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raised an illegal sentence claim and the Court granted relief, finding that the determination of the legality of a sentence is based on its legality as it stands now, and not as it stood at some other time. Ex parte Hill, 632 S.W.3d 547, 557 (Tex. Crim. App. 2021). Though cumulation (or, “stacking”) orders certainly affect the duration of confinement, improper cumulation orders may not be challenged on habeas because they should have been raised on direct appeal. Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004). Even those “bad stacking” issues that could not have been raised on appeal are probably not cognizable on habeas corpus because they arise from statutory violations and do not implicate constitutional rights. Ex parte Carter, 521 S.W.3d 344, 349 (Tex. Crim. App. 2017) (plurality). The best route for an applicant’s challenge to a “bad stacking” order on habeas corpus is probably through an ineffective assistance of counsel claim. ix. Double Jeopardy “A claimed violation of the prohibition against double jeopardy is cognizable on postconviction habeas corpus.” Ex parte Diaz, 959 S.W.2d 213, 214 n.2 (Tex. Crim. App. 1998). However, to raise the issue for the first time on collateral attack, the undisputed facts must show that the double jeopardy violation is clearly apparent on the face of the record and enforcement of the usual rules of procedural default serve no legitimate state interest. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). In 2013, the Court filed and set a case to determine, in part, whether the double jeopardy claim was defaulted because there was no objection in the trial court. Ex parte Denton, 399 S.W.3d 540 (Tex. Crim. App. 2013). In reaffirming that these claims are cognizable due to “fundamental nature” of double jeopardy protections, the Court arguably dispensed with the “legitimate state interest” issue when it observed that “[w]hile the state may have an interest in maintaining the finality of a conviction, we perceive no legitimate interest in maintaining a conviction when it is clear on the face of the record that the conviction was obtained in contravention of constitutional double-jeopardy protections.” Ex parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013). Litigants must understand that though double jeopardy claims are still cognizable, the issue has been contested at the Court of Criminal Appeals, as demonstrated in the side opinions in the Marascio case. Ex parte Marascio, 471 S.W.3d 832 (Tex. Crim. App. 2015). Nevertheless, double jeopardy relief is still granted without controversy. Ex parte Cook, 630 S.W.3d 65 (Tex. Crim. App. 2021). A recent opinion reflects that eight judges agree that “[a]s it stands, precedent supports the continued cognizability of free-standing double-jeopardy claims, and the State has not argued that we should re-evaluate that position.” Ex parte Woods, __ S.W.3d __, No. WR-93,208-01 at *7, n.33 (Tex. Crim. App. Sep. 28, 2022). x. Unconstitutional Statute Post-conviction habeas corpus cannot be used to bring a facial constitutional challenge to a statute. Ex parte Beck, 541 S.W.3d 846 (Tex. Crim. App. 2017). In general, “a facial constitutional challenge must be preserved during the trial proceedings or later attacks will be forfeited.” Ex parte Beck, 541 S.W.3d at 852–54. However, once a statute has been declared unconstitutional, postconviction habeas corpus can provide an avenue for relief for convictions already obtained under the statute. Id. at 855–56. “The due-process right not to be convicted under a statute that has been declared facially unconstitutional cannot be forfeited.” Ex parte Lea, 505 S.W.3d 913, 915 (Tex. Crim. App. 2016). Similarly, probation revocation proceedings predicated on a conviction of an unconstitutional statute may be challenged on post-conviction habeas. Ex parte Lea, 505 S.W.3d 913 (Tex. Crim. App. 2016). xi. Indictment and Jury Charge Error Despite the rule against raising claims that could have been raised on appeal, claims relating to indictments and jury charge error can be cognizable. BUT they come with very high burdens. A claim that the indictment was fundamentally defective “may be cognizable in a writ of habeas corpus, but only if it alleges that the indictment is so deficient that it fails to vest the trial court with jurisdiction.” Ex parte Reedy, 282 S.W.3d 492, 502 (Tex. Crim. App. 2009). Habeas relief based on a
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defective jury charge claim requires the applicant to allege the reasons the error in the charge, in light of the trial as a whole, so infected the procedure that the applicant was denied a fair and impartial trial. Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985). It is likely that any indictment or jury charge problem bad enough to satisfy these burdens would have been noticed and litigated at trial or on appeal. However, the claims are technically still available on habeas, if necessary. xii. Time Credits Like most other sub-topics in this paper, the subject of time credits deserves its own paper. This paper will only cover a handful of time credit issues that the Court sees most commonly. Remember that entitlement to time credits can extend to time spent in custody in other jurisdictions so long as the prisoner was “held” by a detainer on the case in issue, or can show that he or she was held in constructive custody based on the case at issue. Ex parte Spates, 521 S.W.2d 265 (Tex. Crim. App. 1975); Ex parte Kuban, 763 S.W.2d 426, 427 (Tex. Crim. App. 1989); Ex parte Hannington, 832 S.W.2d 355, 356 (Tex. Crim. App. 1992); Ex parte Rodriguez, 195 S.W.3d 700, 703 (Tex. Crim. App. 2006). 1. Administrative Exhaustion As a preliminary matter, with some exceptions, the Government Code forbids prisoners from raising time-served credit errors on 11.07 applications until they have exhausted the issue administratively through the TDCJ Time Dispute Resolution System. Tex. Gov’t. Code § 501.0081. The prisoner must have either received a response or waited 180 days from the time they first raised the issue internally without receiving an answer before the claim may be considered exhausted and cognizable on habeas corpus. Tex. Gov’t. Code § 501.0081(b). The requirements do not apply to a prisoner who, according to TDCJ’s computations, is within 180 days of a presumptive parole date, a mandatory supervision date, or a discharge date. Tex. Gov’t. Code § 501.0081(c). Item 17 on the 11.07 form covers this requirement. If the applicant raises time credit issues and does not respond to Item 17 or provides answers that do not suggest compliance (if, for instance, the dispute resolution claim was submitted 20 days before the writ was filed and no response is indicated), then the entire writ is typically dismissed. Ex parte Molina, 483 S.W.3d 24, 28 (Tex. Crim. App. 2016). The Court does not strictly enforce a requirement that the applicant present evidence of compliance. But see Ex parte Stokes, 15 S.W.3d 532 (Tex. Crim. App. 2000) (faulting the applicant for not providing evidence of a response from TDCJ). A specific allegation of compliance on the form is typically sufficient. However, remands on time issues usually request a response from TDCJ about administrative exhaustion and findings from the convicting court addressing the issue. Applicants released to mandatory supervision are not “inmates,” so they are not subject to the exhaustion requirements of Section 501.0081 (which speaks in terms of “inmates.”). Ex parte Russell, 60 S.W.3d 875, 877 (Tex. Crim. App. 2001). The other exception applies to pre-sentence jail time claims and will be discussed immediately below. 2. Pre-Sentence Jail Time Credits in Felony Cases25 In general, pre-sentence jail time credit claims are no longer cognizable on habeas corpus. When they are, they are not subject to the Government Code’s exhaustion requirement insofar as the claim relates to the correct award of pre-sentence jail time credit. Ex parte Molina, 483 S.W.3d 24 (Tex. Crim. App. 2016). Because the award of pre-sentence jail time credits is the province of the trial court, the remedy is usually to go to the trial court, and there is no sense in requiring inmates to raise the issue with TDCJ. After all, an argument that a judgment is incorrect is not
25
To be clear, this discussion applies to felonies. Pre-sentence jail time credits for state jail felonies are not as straightforward. See, Ex parte Harris, 946 S.W.2d 79 (Tex. Crim. App. 1997); Tex. Code Crim. Proc. art. 42A.559(c).
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something TDCJ can address. Ex parte Molina, 483 S.W.3d 24, 27 (Tex. Crim. App. 2016). “An incorrect calculation of the amount of back-time awarded to a defendant, or the omission of any statutory back-time in the judgment can be adjusted by a motion for judgment nunc pro tunc.” Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007) (concluding that a waiver of pre-sentence jail time credits will cause the prisoner to be ineligible for that time credit). Therefore, the appropriate remedy for those who believe they have not been awarded the correct pre-sentence jail time credit under Code of Criminal Procedure Article 42.03 § 2 is to file a motion for judgment nunc pro tunc in the trial court. If the trial court does not respond, the movant must pursue mandamus relief. Ex parte Ybarra, 149 S.W.3d 147, 148–49 (Tex. Crim. App. 2004). Resort to mandamus applies whether the trial court does not respond to the nunc pro tunc motion, or if it wrongly denies the motion. Ex parte Florence, 319 S.W.3d 695, 696 (Tex. Crim. App. 2010). If the trial court wrongly grants the motion for judgment nunc pro tunc, the State may appeal. See generally, Collins v. State, 240 S.W.3d 925 (Tex. Crim. App. 2007). Moving pre-sentence jail time credits out of habeas corpus litigation marked a sea change in time credit law, which you must remember when reading older time credit cases. Importantly, if the applicant claims illegal confinement “because he would have discharged his sentence if given the proper time credit,” then habeas corpus is the appropriate remedy. Ex parte Florence, 319 S.W.3d 695, 696 (Tex. Crim. App. 2010); Ex parte Ybarra, 149 S.W.3d 147, 148 n.2 (Tex. Crim. App. 2004). When applicants file 11.07 applications raising meritless claims challenging the conviction and presentence jail time credit issues, the writ will be decided with a mixed disposition. The “Ybarra” claims relating to time credits will be dismissed while the claims challenging the conviction or sentence will be decided on the merits. Ex parte Deeringer, 210 S.W.3d 616, 618 (Tex. Crim. App. 2006). 3. Post-Conviction Time Credits This is a vast, tangled area of law, and this version of this paper only addresses the two most common issues the Court sees. Both “street time” and “Canada time” concern prisoners who have been returned to prison after supervised release and then dispute the time they are owed upon their return to an actual TDCJ-ID unit. Street time is a legislative gift to prisoners allowing some to be credited with time spent out of custody (on the street) when their parole or mandatory supervision is revoked. The award and denial of street time is governed by Section 508.283(b) & (c) of the Government Code. The “street time” statute excludes prisoners whose convictions make them ineligible for mandatory supervision from street time eligibility. Tex. Gov’t. Code §§ 508.283(b) & (c), 508.149(a). Because a prisoner could be ineligible for mandatory supervision based on a prior conviction, it is not necessarily dispositive that the prisoner is pursuing street time credits for a sentence that is, on its face, eligible for mandatory supervision. See Tex. Gov’t. Code § 508.149(a) (stating that “[a]n inmate may not be released to mandatory supervision if the inmate is serving a sentence or has been previously convicted of” one of the listed offenses). Section 508.149(a) includes statutory predecessors to the listed offenses. Ex parte Ervin, 187 S.W.3d 386, 389 (Tex. Crim. App. 2005). And though eligibility for mandatory supervision is based on the law in effect at the time of the offense, eligibility for street time is based on the law applicable at the time of the revocation. In rare cases like Noyola, shifting statutes can benefit the prisoner. Ex parte Noyola, 215 S.W.3d 862, 869–70 (Tex. Crim. App. 2007). Finally, if the prisoner was eligible for street time on the original conviction at the time of release but begins serving a new conviction described by Section 508.149(a) before revocation, the new sentence makes the prisoner ineligible for street time. Ex parte Hernandez, 275 S.W.3d 895 (Tex. Crim.
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App. 2009). Prisoners who are serving a mandatory-eligible sentence and have no priors for disqualifying offenses are eligible for street time credit upon the revocation of their parole or mandatory supervision if they have spent enough time on supervised release. To be eligible, the prisoner had to have spent more than half of the time remaining on the sentence at the release date before the revocation warrant was issued. Tex. Gov’t. Code § 508.283(c); Ex parte Spann, 132 S.W.3d 390 (Tex. Crim. App. 2004). In prison parlance, this is referred to as meeting the “mid-point.” So if an eligible prisoner had 10 years left on the sentence upon release to mandatory supervision or parole, and the revocation warrant was issued five years and one day after release, the prisoner reached the “mid-point” on supervision and is entitled to credit for time on supervised release. However, if the prisoner fell short of making it to the “mid-point,” then all the time is forfeited. Presiding Judge Keller described the test this way: “1. If, on the summons date, the ‘remaining portion’ of Applicant’s sentence is greater than the time spent on parole, Applicant receives no street-time credit for the time spent on parole. 2. If, however, on the summons date, the ‘remaining portion’ of Applicant’s sentence is less than the time spent on parole, Applicant receives street-time credit for the amount of time spent on parole.” Ex parte Spann, 132 S.W.3d 390, 393 (Tex. Crim. App. 2004) (emphasis omitted). The other major topic of post-conviction time credits is what is known as “Canada Time,” which describes time spent confined under authority of pre-revocation warrants (“blue warrants”). The Government Code provides that, when it appears a parolee has violated a condition of release, the time from the date of issuance of the pre-revocation warrant to the date of arrest is not counted as part of the time served on the sentence. Tex. Gov’t. Code § 508.253. However, upon revocation of parole, prisoners are entitled to credit for the time spent confined under authority of previous pre-revocation warrants. Ex parte Canada, 754 S.W.2d 660 (Tex. Crim. App. 1988). Most time credits are tied to restraint of some sort, and eligibility for Canada Time runs from the execution of the pre-revocation warrant. Ex parte Price, 922 S.W.2d 957, 959 (Tex. Crim. App. 1996). A parolee is “confined” by an un-executed pre-revocation warrant that prevented release on bond in a new case and is entitled to credits from the time of confinement. Ex parte White, 400 S.W.3d 92, 94 (Tex. Crim. App. 2013). The law suggests that the applicant must show that an un-executed blue warrant prevented release on bond, causing confinement that requires the award of time credits. The thread running through the Court’s “Canada Time” cases is restraint, whether a detainer in another jurisdiction places the parolee in constructive custody, or an un-executed blue warrant makes the parolee ineligible for bail in another case. Applicants must keep proof of restraint in mind when making these claims. xiii. Parole & Mandatory Supervision The Court rarely intervenes in parole and mandatory supervision matters, but these issues are commonly raised in 11.07 applications filed by pro-se litigants. Naturally, most issues arise in relation to the decision to release to parole, and then in relation to the process for revoking release and the return to prison. 1. Release to Parole This is, perhaps, the least fraught aspect of this process. Parole eligibility, including the time necessary before eligibility for parole release, is determined by the law in effect at the time of the offense. Ex parte Choice, 828 S.W.2d 5 (Tex. Crim. App. 1992). Prisoners are entitled to notice, opportunity to be heard, and a reason for a denial of release to parole. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 16 (1979). The parole panel is not required to have the prisoner before the panel for an interview, but the panel may do so. Tex. Gov’t. Code § 508.141(c). Texas courts do not typically intervene in the decision whether to release a prisoner to parole. “The decision to release or not release an inmate of the Texas Department of Corrections, even though eligible for parole, remains within
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the sound discretion of the Board of Pardons and Paroles.” Ex parte Rutledge, 741 S.W.2d 460, 463 (Tex. Crim. App. 1987) (overruled on other grounds by, Ex parte Hallmark, 883 S.W.2d 672, 674 (Tex. Crim. App. 1994)). 2. Release to Mandatory Supervision Mandatory supervision issues are more frequently litigated and complex. This is attributable to the ongoing changes to mandatory supervision itself, and eligibility for release to mandatory supervision. From 1977 until 1987, eligible prisoners whose actual calendar time served and their accrued good conduct time equaled the term of their sentence were automatically released on mandatory supervision and treated as if they were on parole. Ex parte Retzlaff, 135 S.W.3d 45, 48 (Tex. Crim. App. 2004). Beginning in 1987, eligibility for mandatory supervision release began to be increasingly circumscribed as the legislature added offenses to the ineligible list. Those ineligible for mandatory supervision release were still eligible for parole release. In 1995, the legislature made release to “mandatory supervision” discretionary. Now, eligible prisoners have a presumption of release, but the parole board may vote to block the release of any prisoner for a set of reasons. Id. TDCJ must keep track of who is eligible for what, with regular changes in the law to recall. Prosecutors and courts are accustomed to prisoners describing themselves in terms of which legislative session controls their eligibility. The least complicated mandatory supervision issue is eligibility for those with life sentences. The Court decided that it is mathematically impossible to determine a mandatory supervision release date for a life sentence because the calendar time and good conduct time can never add up to life. Therefore, according to this thinking, prisoners serving life sentences are ineligible for release to mandatory supervision. Ex parte Franks, 71 S.W.3d 327, 328 (Tex. Crim. App. 2001). Eligibility (or not) for mandatory supervision release is determined by the statute in effect at the time of the offense. Ex parte Hall, 995 S.W.3d 151, 152 (Tex. Crim. App. 1999). Once a prisoner has been convicted of one of the ineligible offenses, future sentences will be ineligible for mandatory supervision, irrespective of the crime of conviction. See Tex. Gov’t. Code § 508.149(a) (applying to inmates who are serving a sentence for or have been convicted for one of the enumerated offenses). Prior offenses that are not specifically enumerated but are statutory predecessors to current ineligible offenses will make a prisoner ineligible. Ex parte Ervin, 187 S.W.3d 386 (Tex. Crim. App. 2005). This goes the other way, sometimes crimes that appear to be covered as ineligible offenses are not. Ex parte Mabry, 197 S.W.3d 58 (Tex. Crim. App. 2004) (analyzing shifting classifications of burglary). Prisoners who are up for a decision by the parole board about whether they will be released to mandatory supervision are “entitled to notice of the specific month and year in which [they] will be reviewed for release to mandatory supervision” as well as “at least thirty days advance notice that [they] will be reviewed in the specified month so that [they have] a sufficient opportunity to submit materials on [their] behalf.” Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004). Applicants claiming deficiencies in notice must show not only the deficiencies but how they adversely affected them. Ex parte Retzlaff, 135 S.W.3d at 50. The prisoner may be denied release to “discretionary mandatory” if the board determines that the prisoner’s good conduct time credits do not accurately reflect the potential for rehabilitation or that the prisoner would endanger the public if released. Tex. Gov’t. Code § 508.149(b). The Parole Board’s decision that a prisoner is unsuitable for release to “discretionary mandatory” release “is not subject to administrative or judicial review.” Tex. Gov’t. Code § 508.149(d); Ex parte Geiken, 28 S.W.3d 553, 556–58 (Tex. Crim. App. 2000). 3. Revocation Parolees are entitled to due process in the revocation process. Morrissey v. Brewer, 408 U.S. 471 (1972). Parolees are entitled to: written notice of claimed parole violations; disclosure of the evidence against the parolee; the opportunity to be heard in person and present witnesses and evidence; the right to
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confrontation and cross examination of adverse witnesses (unless good cause has been found to bar confrontation); a neutral and detached hearing body; and a written statement by the fact finders detailing the evidence relied upon and the reasons for revocation. Morrissey v. Brewer, 408 U.S. 471, 489 (1972). There is no absolute right to appointed counsel, and the decision regarding the need for counsel is a caseby-case decision left to the parole board’s discretion. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). “When the parolee may have difficulty in presenting his version of a disputed set of facts or when the facts or mitigating circumstances are so complex that they can fairly be presented only by a trained advocate, counsel should be appointed in a parole revocation proceeding.” Ex parte Taylor, 957 S.W.2d 43, 47 (Tex. Crim. App. 1997). The parole board may meet with the parolee but is not required to do so. Tex. Gov’t. Code § 508.141(c). Preliminary hearings to determine whether there is probable cause to show a violation of parole conditions must be held within a reasonable time, even if new charges are pending. Tex. Gov’t. Code § 508.2811; Ex parte Cordova, 235 S.W.3d 735 (Tex. Crim. App. 2007). However, when the parolee is under indictment for a new offense, the 41-day deadline for a final revocation hearing does not apply. Ex parte Cordova, 235 S.W.3d 735, 736 (Tex. Crim. App. 2007). In a recent case in which the parolee was arrested (but not charged) and held on authority of the blue warrant for seven months, the Court ordered the revocation proceedings dismissed and the parolee released from custody based on the blue warrant. Ex parte Palma, Nos. WR-90,415-01 & WR-90,415-02 (Tex. Crim. App. Dec. 11, 2019) (not designated for publication). In a published dissent, Presiding Judge Keller agreed that due process was violated, but argued for a different remedy. Ex parte Palma, 588 S.W.3d 279 (Tex. Crim. App. 2019) (Keller, P.J., dissenting). Throughout the COVID-19 pandemic, the Court saw many similar complaints, but they were typically mooted out on remand. VIII. Delay, Laches, & Waiver of Habeas This brief section addresses defensive issues that may be availing for the State, and that applicants should understand. A. Delay This issue is simple. “[A] petitioner’s delay in seeking relief can prejudice the credibility of his claim.” Ex parte Galvan, 770 S.W.2d 822, 824 (Tex. Crim. App. 1989). In Galvan, the applicant raised an ineffective assistance of counsel claim for failure to pursue an appeal almost six years after the conviction. The applicant’s claim, that he wanted to appeal from the start and would have, loses credibility when it is not asserted with some alacrity. This can be a powerful line of argument when the applicant waits years to raise an extraordinary irregularity from the proceedings that would make a plea involuntary. This argument is not used often by the State, but applicants should always confront an obvious delay to maintain (or rehabilitate) their credibility. B. Laches When laches applies, the Court does not consider an applicant’s claims on the merits and will deny relief. Ex parte Hill, 632 S.W.3d 547, 551 (Tex. Crim. App. 2021). Laches is slightly more complex than the “delay” concept, and has seen significant changes over the past decade. When the Court first held the affirmative defense of laches played a part in habeas litigation, it required the State to make a particularized showing of prejudice in its ability to respond to claims caused by the applicant’s unreasonable delay in filing the writ. Delay alone was not sufficient to cause particularized prejudice. Ex parte Carrio, 992 S.W.2d 486 (Tex. Crim. App. 1999). Since then, the Court has expanded the definition of prejudice to incorporate all forms of prejudice beyond the State’s ability to respond to the writ application. A court is free to consider
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the totality of the circumstances to decide whether to hold consideration of an application barred by laches. Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013). The Court has rejected a proposed presumption of prejudice arising after a five-year delay. Id. But one year after Perez, the Court held that the State need not plead laches in its answer (or at all), and that a court could consider laches on its own motion. Ex parte Smith, 444 S.W.3d 661 (Tex. Crim. App. 2014). Though the standard for the State’s prejudice showing has been relaxed, the State should still make some specific allegation of prejudice rather than relying on a vague statement that with the passage of time, it could be difficult to respond or retry the case. If the defense lawyer is deceased or no longer has the trial file or cannot remember the case, the State should say so and provide some evidence, even if it is only an affidavit. If the State can easily defeat the claims on the merits, then resort to laches is unnecessary. The applicant should be prepared for a laches argument and get in front of the issue with reasons that it took however long it took to file the writ. If a court raises the issue on its own, the applicant must take the opportunity to respond. C. Waiver of Habeas Corpus The Court has given a limited approval of habeas corpus waivers. “An applicant may voluntarily, knowingly, and intelligently waive any claim that is based upon facts that, by diligence and with the assistance of trial counsel, he was aware of at the time of the waiver.” Ex parte Reedy, 282 S.W.3d 492, 504–05 (Tex. Crim. App. 2009). The Court added that it would not enforce a waiver of habeas corpus “as to a claim that a guilty plea was involuntary because it was the product of ineffective assistance of counsel.” Id. The problem for prosecutors trying to enforce waivers is that the language of Reedy necessarily excepts most viable legal claims that are brought on habeas. By their nature, ineffective assistance of counsel, Brady, innocence, and false evidence are not things that the parties are aware of at the time of the purported waiver. Nevertheless, writ prosecutors who know the record contains a waiver should highlight it and bring it to the Court’s attention. Unless the writ claims are heavily dependent on the plea paperwork, a single waiver is easy for a reviewing court to miss. Similarly, applicants must address why the waiver does not apply to their claims. IX. New Extraordinary Writ Opinions from Spring 2022–Spring 2023 (not otherwise mentioned in the paper) Mandatory Supervision Ex parte Rivers, __ S.W.3d __, No. WR-44,786-06 (Tex. Crim. App. May 18, 2022). Rivers was serving two sentences, one eligible for “mandatory mandatory” supervision, the other, newer sentence subject to “discretionary mandatory supervision,” which ran concurrently with the older case. The Board twice denied discretionary mandatory on the newer sentence. Shortly after the second denial, he became eligible for mandatory supervision release on the older sentence, but TDCJ told him he would not be released until he became eligible for release on all concurrent sentences. The Court found that TDCJ’s actions violated the terms of the old “mandatory mandatory” supervision law. The Court decided that Rivers was eligible to immediate release on the earlier sentence, though because he would still be held by the newer sentence, it would be a “paper parole.” He is no longer in TDCJ as of March 31, 2023. Ineffective Assistance of Counsel Ex parte Covarrubias, __ S.W.3d __, No. WR-82,509-03 (Tex. Crim. App. Jan. 25, 2023). The State and the trial court agreed on four instances of ineffective assistance of counsel. The Court found
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that to prevail on a claim that counsel was ineffective for not using a peremptory strike on the basis of bias against the law, the record must show that the juror was, in fact, biased. When a juror expresses some discomfort or disagreement with the law, counsel must ask a follow-up question to determine whether he can follow the law regardless of personal views. When the applicant does not show that a panelist who became a juror was “biased,” the applicant cannot show by a reasonable probability that the jury’s verdict would have been different with a different panelist on the jury. Ex parte Salinas, __ S.W.3d __, No. WR-90,982-01 (Tex. Crim. App. Nov. 16, 2022) The Court appears to have filed and set this case to address the habeas court’s recommendation to grant relief based on multiple allegations of ineffective assistance. Applicant faulted counsel at his second trial for allowing evidence that he did not respond to a specific question posed by the police during their interview with him. Though counsel objected under the Fifth Amendment (resulting in an opinion from the Supreme Court), they did not object to the use of his pre-arrest silence under the 14th Amendment and Article 38.23. The Court held that counsel could not be faulted as the law governing both issues was unsettled at the time of the trial. The Court also addressed four other ineffective assistance claims as part of a cumulative error claim. After assuming attorney error, the Court concluded there was no harm under Strickland. Sex Offender Registration Ex parte Kibler, __ S.W.3d __, Nos. WR-91,197-01, WR-97,197-02 (Tex. Crim. App. Sep. 21, 2022) (plurality). Applicant received convictions in the same proceeding for two separate offenses. The applicable sex offender registration scheme required lifetime registration “if before or after the person is convicted or adjudicated for the offense . . . the person receives or has received another reportable conviction or adjudication . . . for an offense or conduct that requires registration . . .” Though the applicant was convicted of both offenses in the same proceeding, the Court held that he was subject to lifetime registration. The opinion is a plurality, but Judge Yeary concurred in the result with a written opinion. False Evidence Ex parte Mathews, __ S.W.3d __, No. WR-91,731-01 (Tex. Crim. App. Jan. 11, 2023). Houston Police Officer Gerald Goines’s repeated acts of misconduct triggered the presumption of falsity under Coty for the applicant’s case, which occurred in 2013, “within roughly the same period of time as the other misconduct.” Illegal Sentence & Estoppel Ex parte Lozoya, __ S.W.3d __, No. WR-92,475-01 (Tex. Crim. App. Mar. 29, 2023). As part of his plea bargain, the applicant agreed to ten years of community supervision in a case that was only eligible for five years of community supervision. The State moved to revoke the supervision in the sixth year of supervision and applicant was revoked and sentenced to five years’ incarceration. When the legal error in the plea was discovered, Applicant alleged that the judge did not have jurisdiction to revoke. The Court decided that a court does not have jurisdiction to revoke community supervision during an unlawful period of supervision when the motion to revoke and capias issued after the lawful period of supervision expired. Before granting relief, the Court endeavored to clarify its estoppel doctrine, concluding that it did not apply. The Court reasoned that none of the parties knew the correct maximum term of supervision, applicant’s acceptance of the term of supervision was not voluntary, and he did not acquiesce to the unlawful period of supervision or ratify it since he pursued his claim when he learned the correct facts and law. The Court observed that in deciding the estoppel issue, it did not decide whether a court may raise this affirmative defense on its own motion (though that is what happened in this case
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since the Court raised the issue in its remand order). In fashioning a remedy, the Court honored the State’s request that the entire agreement was not unwound given their willingness to waive the invalid portion of the judgment and retain the remainder of the agreement. Therefore, the Court set aside the judgment revoking supervision and sentencing applicant to confinement. Applicant apparently did not argue that his entire plea was involuntary due to defense counsel’s failure to determine the legality of the agreement. Judge Yeary issued a dissenting opinion arguing that the claim should not be cognizable on postconviction habeas corpus. Double Jeopardy Ex parte Woods, __ S.W.3d __, No. WR-93,208-01 (Tex. Crim. App. Sep. 28, 2022). Woods pleaded guilty as part of a plea agreement and was convicted of two charges of possession of a firearm by a felon for the possession of two weapons. The indictments alleged both offenses were committed on the same date and used the same prior conviction as the predicate felony. After determining that possession of firearm by a felon is a “circumstances” offense for “unit of prosecution” purposes, the Court granted double jeopardy relief. The applicant also alleged ineffective assistance of counsel, but the habeas court found that he had not established deficient performance or prejudice. Presiding Judge Keller’s opinion was joined by every judge other than Judge Yeary and included a footnote concluding “[a]s it stands, precedent supports the continued cognizability of free-standing double-jeopardy claims, and the State has not argued that we should re-evaluate that position.” X. Pending Issues Filed & Set for Opinions The language provided in these summaries is taken from the parties or the Court’s orders filing and setting the cases. Ex parte McMillan, No. WR-88,970-01 (Filed and set for submission on February 12, 2020). The Court filed and set this case to determine whether the rule in Ex parte Pue is retroactive. Applicant’s sentence was enhanced with a federal sentence for which she served the first part of the sentence in custody and the remainder on supervised release. The retroactivity of Pue (or not) would decide whether the finality of the conviction for enhancement purposes is judged by federal law or Texas law. Ex parte Collier, No. WR-91,748-01 (Filed and set for submission on November 25, 2020). The Court filed and set this case to determine whether the Applicant was denied his right to appeal. Ex parte Victor, No. WR-84,934-07 (Filed and set for submission on October 26, 2022). The Court filed and set this case to determine whether a double jeopardy claim involving multiple-punishments arising from convictions under separate legal theories can satisfy the “innocence gateway” exception to the subsequent writ bar, as provided in Texas Code of Criminal Procedure Art. 11.07 § 4(a)(2). XI. Conclusion and Contact Information I hope this quick overview of the writ issues prisoners and practitioners will face when litigating postconviction writs is informative and helpful. It covers the crucial legal points necessary to the Court’s regular decision-making process. But as I hope its cursory treatment of vast oceans of substantive law shows, it is only the starting point for someone involved in 11.07 litigation. If you ever have any questions about habeas corpus, extraordinary writs, or other extraordinary writ matters, please do not hesitate to contact me. Michael Falkenberg Assistant Public Defender Harris County Public Defender’s Office
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(713) 274-6751 Michael.Falkenberg@pdo.hctx.net
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Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya Road San Antonio, Texas 78205
Texas Sentencing in Non-Capital Cases
Speaker:
Clifford Duke
Dallas County Assistant Public Defender Dallas County Public Defender's Office 133 N Riverfront Blvd, LB2 Dallas, TX 75207 214.875.2319 phone 214.653.3539 fax cduke@dallascounty.org email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
Texas Sentencing in Non-Capital Cases Clifford P. W. Duke Dallas County Assistant Public Defender 133 N. Riverfront, LB 2 Dallas, Texas 75207 214-875-2319 cduke@dallascounty.org “Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing…” TEX CODE CRIM PROC. 37.07, §3(a)(1). “The sentencing stage of any case, regardless of the potential punishment, is the time at which for many defendants the most important services of the entire proceeding can be performed.” Vela v. Estelle, 708 F.2d 954, 964 (5th Cir. 1983) cert denied, 464 U.S. 1053 (1984). Those two quotes summarize the gravity of the second stage of a trial. Not only is this where the rubber truly meets the road for a criminal defendant, but just about anything is usually game. No matter how you plan on proceeding for guilt or innocence, punishment needs to be on your mind from day one. While every one of us would like that two-word verdict, the reality is that most trials aren’t about guilt or innocence. More often than not it’s because the defense and the state couldn’t agree on a final outcome. The goal of this paper is to provide some
guidance on the following issues: what sentencing actually is; to explore tools to help determine what is coming at you; what defense attorneys should be looking for; and some technical considerations in punishment, enhancement, and community supervision. I. Figure Out What Is Coming "Talent is cheaper than table salt. What separates the talented individual from the successful one is a lot of hard work." - Stephen King The number one tool for any case of any kind is preparation. Unfortunately for many defense attorneys, the sentencing phase of a trial is often spent rebutting bad information instead of being able to provide good information about our clients. The biggest advantage is preparation, and knowing what is coming at you before the second half of your trial. Luckily the Texas Code of Criminal Procedure and the Texas Rules of Evidence provide requirements of information that the State must provide. Below are some avenues that can be used in finding out what is coming at you, and your client, in the second half of the trial.
A. The Indictment The first and best place to see what will be presented at sentencing is the indictment. The indictment and subsequent motions to amend or enhance the indictment put you on notice of what range of punishment your client will be looking at and what extraneous bad acts will be presented at sentencing. The specific ranges of punishment and enhancement will be discussed later in this paper, and at Appendix B. Take the time to look at the enhancement paragraphs if they are there. Make sure dates and cause numbers are correct. Pull copies of past convictions, including probable cause affidavits and, if appropriate, testimony from those proceedings. Your client may have previously been convicted of aggravated robbery, but it could make the difference to a judge or jury if your client was just the driver instead of the one inside with the gun. Be aware, prior offenses used to enhance your client’s range of punishment do not have to be included in the indictment. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997) If the enhancement paragraphs are not in the information or indictment, the State does not have to amend the indictment or have a motion granted to enhance the punishment, only give ‘proper notice’ of the intent to enhance. Id. That notice to enhance can come as late as the beginning of the punishment phase of the trial. Villescas v. State, 189 S.W.3d 280, 294 (Tex. Crim. App. 2006) Make sure to use
your requests for disclosure, discussed below, to know what prior offenses the State intends to use during your trial. B. Discovery Orders Under the Due Process Clause of the Fourteenth Amendment, a prosecutor has an affirmative duty to turn over material exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87-88 (U.S. 1963); Ex parte Kimes, 872 S.W.2d 700, 702 (Tex. Crim. App. 1993). Brady is also now codified in the Texas Code of Criminal Procedure §39.14(h). The prosecution violates due process when it suppresses evidence in its possession favorable to an accused "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. Evidence withheld by a prosecutor is "material" if there is "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 782 (1985). A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Id. Prior to the passage of SB 1611, better known as the Michael Morton Act, a Defendant was required to make a showing of good cause to have the inspection and copying of evidence in the State’s possession and have the court order the production. Now, upon a ‘timely request’ a Defendant is entitled to inspection and duplication of essentially
everything in the State’s possession. TEX CODE CRIM PROC. 39.14(a) If discovery is requested and the State fails to comply then the nondisclosed evidence should be excluded from trial. “Evidence willfully withheld from disclosure under a discovery order should be excluded from evidence." Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006), citing Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978). However, when the evidence is disclosed during trial and still comes in, the materiality question turns on whether the defendant was prejudiced by the delayed disclosure. Williams v. State, 995 S.W.2d 754, 761-62 (Tex. App.-San Antonio 1999, no pet.). When previously withheld evidence is disclosed at trial, the defendant has an opportunity to request a continuance. Id. The failure to request one waives any Brady violation, as well as any violation of a discovery order. Gutierrez v. State, 85 S.W.3d 446, 452 (Tex. App.Austin 2002, pet. ref'd) If confronted with evidence that was not turned over in discovery you must make your objection, request a continuance, and make your record to object to the surprise the evidence creates and how it is materially adverse to your client. C. Requests for Extraneous Offenses
Disclosure
of
Like the new procedures under the Michael Morton Act, a request for disclosure triggers an automatic requirement for disclosure of prior bad acts and extraneous offenses. “On timely
request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner as required by Rule 404(b), Texas Rules of Evidence.” TEX CODE CRIM PROC. 37.07 §3(g). “If the extraneous offense is one that has not resulted in a conviction then notice must include 1) the date of the alleged bad act 2) the county in which the alleged bad act occurred and 3) the name of the alleged victim of the crime or bad act. Id. Additionally, Texas Rule of Evidence 609(f) also excludes evidence of prior convictions if proper notice is not given after a specific request. Special rules apply to cases involving a sex offense against a child under 17 years old. TEX CODE CRIM PROC. 38.37. Evidence of other crimes, wrongs, or acts by a defendant against the child victim in this type of case will be admissible to show the relationship between the defendant and the child. In this type of case, make sure to include in your request those prior bad acts pursuant to TEX CODE CRIM P ROC. Article 38.37 §3, which must then be disclosed in the same manner as Article 37.07 notice. D. Expert Disclosure In addition to the information obtained from the State in discovery, TEX CODE CRIM PROC. Article, 39.14(b) allows for discovery of experts the State intends to introduce. When granted, the defense is entitled to the name and address of any experts to be used to present evidence under Rule 702, 703, and 705.
It is important to note however that a motion to disclose experts is completely worthless unless it is ruled on. See Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim. App. 1993). Unlike your requests under Code of Criminal Procedure 39.14, the Michael Morton Act, or a request for disclosure under 37.07, you must file a motion and get an order regarding experts. Make absolutely sure to make your record, hold your pre-trial hearing before the day of trial. Get a ruling on your discovery motion. Your order needs to specify the time, place, and manner of the disclosure, at least twenty (20) days before trial. TEX CODE CRIM PROC. 39.14(b) Unlike traditional civil discovery, disclosure of an expert’s identity does not necessarily entitle a defendant to disclosure of an expert’s opinion, or the facts and data used to form that opinion. Additionally those facts and data may not necessarily be in the State’s control. Make sure to include in any request for expert disclosure the summary opinion of each expert, as well as the facts and data relied on to form that opinion pursuant to Texas Rule of Evidence 705.
codified in article 42A, if punishment is being assessed by the Judge, the court is required to order a Pre-Sentence Report, with some exceptions. TEX CODE CRIM PROC. 42A.252 A defendant is allowed to waive the preparation of a Pre-Sentence Report. TEX CODE CRIM PROC. 1.14; Griffith v. State, 166 S.W.3D 261, 263 (Tex. Crim.App. 2005) A judge is not required to order a Pre-Sentence Report if punishment is agreed to by plea bargain, the only possible sentence is imprisonment, or if punishment is to be assessed by a jury. Id. A Pre-Sentence Report is also not required in a misdemeanor case if waived by the Defendant or the Judge finds sufficient information is apparent from the record. Id.
E. Pre-Sentence Report – formerly PreSentence Investigation (PSI)
A Pre-Sentence Report will include, at the least, a report of the offense, restitution if any, and the criminal and social history of your client, a community supervision plan, IQ testing or “any other information relating to the defendant or the offense as requested by the judge.” TEX CODE CRIM PROC. 42A.253 It can also include a drug or alcohol evaluation, TEX CODE CRIM PROC. 42A.257, and sexual evaluations in cases of sex offenses. TEX CODE CRIM PROC. 42A.258.
A Pre-Sentence Report can be a useful tool in convincing an otherwise reluctant District Attorney to offer probation, or to prepare for an open plea of guilt for probation. Under the amendments to the Texas Code of Criminal Procedure Article 42.12,
A Judge is not allowed to review the report or disclose it to any party until there is plea or finding of guilt. TEX CODE CRIM PROC. 42A.254 However, at least 48 hours prior to sentencing a Defendant must be allowed to review the Pre-Sentence report and comment or
introduce evidence alleging factual inaccuracy in the report. TEX C ODE CRIM PROC. 42A.255 Be cautious. The State is allowed access to any information provided to the Defense in the Presentence Report. TEX CODE CRIM PROC. 42A.255(C)
admissibility of evidence during the punishment phase of a noncapital trial is a function of policy rather than a question of logical relevance.” Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006) citing Rodgers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App 1999).
II. Admissibility – What’s coming in?
On the opposite side, a defense attorney can and should use the broadness of the sentencing law to provide any and as much positive information as is available. A defendant’s personal responsibility and moral blameworthiness for the offense is admissible. Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim. App. 1990). Evidence that a defendant is remorseful may be admissible. Renteria v. State, 206 S.W. 3d 689, 697 (Tex. Crim. App. 2006). Jurors may consider what sentence will sufficiently punish the defendant, and what sentence is appropriate to deter future criminal conduct of a defendant. Lopez v. State, 860 S.W.2d 938, 946 (Tex.App. – San Antonio 1993, no pet.). Be creative in presenting evidence to judge or jury to lessen your client’s punishment.
As noted above admissibility of evidence during sentencing is governed in section 37.07 of the Texas Code of Criminal Procedure. The purview is broad, allowing for anything the court deems relevant. Ellison v. State, 201 S.W. 3d. 714, 721 (Tex. Crim. App. 2006). The general, overarching rule is that punishment evidence is relevant if it provides information about the defendant’s life and characteristics. Brooks v. State, 961 S.W.2d 396, 396-400 (Tex.App – Houston [1st Dist.] 1997, no pet.). A. Relevance Relevance is not without limits. The Texas Court of Criminal Appeals equates relevance analysis to that of Texas Rule of Evidence 401: that evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. TEX. R. EVID. 401 “Relevancy in the punishment phase is ‘a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.’ Accordingly, the
B. Penitentiary Packets and Prior Convictions To prove that a defendant has been convicted of a prior offense, the State must (1) prove the existence of the conviction and (2) link the conviction to the defendant. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). For enhancement purposes the State must also prove that your client’s second previous felony conviction was committed
after the first previous conviction became final. TEX. PENAL CODE § 12.42; Wiggins v. State, 539 S.W.2d 142 (Tex. Crim. App. 1976). One of the most frequently used pieces of information that will be used against your client to prove prior convictions will be prior Judgments or Penitentiary Packets. While both are hearsay under Texas Rule of Evidence 801, both have exceptions to them under Texas Rule of Evidence 803: TRE 803(6) for Penitentiary Packets as Records of Regularly Conducted Activity and TRE 803(22) as Judgment of a Previous Conviction. Don’t accept the State’s offering of evidence on its face. Just because an exception exists for a type of document does not mean the document fits into the exception. Look again at Texas Rule of Evidence 803(6), better known as the Business Records Exception. Business records are accepted over a hearsay objection because of their inherent trustworthiness. There is no need for confrontation or cross-examination because the documents themselves are trustworthy. But section 6 has a failsafe built into it when “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” TEX. R. EVID. 803(6) Courts have recognized that just because information is in a government report that it does not automatically have the “indicia of reliability sufficient to insure the integrity of the fact-finding process and commensurate with the constitutional
rights of confrontation and crossexamination.” McCrary v. State, 604 S.W.2d 113 (Tex. Crim. App. 1980) citing Chambers v. Mississippi, 410 U.S. 284 (1973). Remember too that beyond overcoming hearsay, documents entered into evidence must be authenticated. While the Court of Criminal Appeals has done away with the requirement that a certified judgment from the original court accompany a penitentiary packet to self authenticate, there must still be some evidence to support that the evidence in question is what its proponent claims. See Reed v. State, 811 S.W.2d 582, 587 (Tex. Crim. App. 1991); TEX. R. EVID. 901 Even if a penitentiary packet is admitted, be careful to review what information is being admitted. Just because the record itself is admissible, the probable cause affidavit, victim impact statement, motions to revoke probation, or random notations in the file contain testimonial information not subject to cross-examination and should not be admissible. When a business record contains “sterile recitations…of offenses and punishments” that information can be admitted as a business record. Ford v. State 179 S.W.3d 203, 208 (Tex.App – Houston [14th Dist.] 2005, pet. ref’d). However, incident reports or disciplinary reports from correctional facilities or the like that include statements from corrections officers or narrative reports are not admissible if those individuals are not there to testify to them in open court. Russeau v. State, 171 S.W.3d 871, 880
(Tex Crim. App. 2005). Make sure to object to those statements to keep them out. One special circumstance to look at is prior Juvenile Convictions. An adjudication under Texas Family Code Section 54.03 provides that when a child engages in conduct that occurred on or after January 1, 1996 that results in a commitment to the Texas Youth Commission is a final felony conviction for enhancement purposes. TEX. PENAL CODE § 12.42(f) However, because of the family code’s limitation of the effect of juvenile felonies “a defendant with only a juvenile felony can apply for probation and truthfully aver that he has not been previously convicted of a felony.” Thompson v. Sate, 267 S.W.3d 514, 517 (Tex. App. Austin 2008, pet. ref'd) Those juvenile priors can’t remove your client’s eligibility for probation, but they can enhance the punishment. Finally, remember that with any extraneous offense the State must prove the offense beyond a reasonable doubt. TEX CODE CRIM PROC. 37.07 §3(a)(1). The defense has an absolute right to request that the court make a determination that the State has sufficient evidence to prove it to a jury beyond a reasonable doubt prior to it being submitted to the jury. Harrell v. State, 884 S.W.2d 154, 160 (Tex. Crim. App. 1994). Look at what evidence is in the packets and judgment to reflect that the person in that judgment is your client. Most often this is done by comparing
fingerprints in the judgment or penitentiary packet to fingerprints from your client. Review the prints in the packets before hand if possible and see if they are viable. Always review the demographic and identifying information. You will be amazed at how often typos and mistakes occur that may keep a prior judgment out of evidence. C. Other Objectionable Evidence Evidence that is admissible during the sentencing phase of a trial is broad, but 37.07 does not give the State cart blanche to the judge or jury. Aside from objections to relevance, the Texas Rules of Evidence addressing hearsay, privilege, competency of witnesses, either lay or expert, and authentication of exhibits still apply. This is in addition to constitutional rights of confrontation of witnesses for any evidence to be presented. Although outside the scope of this paper, objections based on Crawford, Melendez-Diaz, and Daubert all still apply during a sentencing hearing. Constitutional protections do not go out the window just because your client has plead or been found guilty. Ultimately, whether evidence is relevant is left to the trial court, which has broad discretion in making that determination. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). Don’t roll over and just accept that everything that the State attempts to introduce is relevant and in the same breath fight for the relevancy of any positive piece of information you can find.
III. What should we be looking for? From the first day of being appointed to or retained by a client we have to start the process of finding positive information about them. The purpose of this is threefold: first obviously to help counter the view that our client’s purported crime makes them an unsalvageable criminal. The second is that collateral information from friends, family, doctors, therapists and so on may assist in winning a case outright. Finally, identifying problem areas that our clients may have such as anger management, drugs, or psychological issues and addressing them far before trial will not only help with showing remedial measures at trial but will probably help in your attorney-client relationship as well. A. Friends and Family Aside from being the first and most obvious place to start humanizing our clients, failure to interview friends, family, teachers, coaches, co-workers, church members and so on for mitigating evidence in our client’s past has been found to be ineffective. See Wiggins v. Smith, 539 U.S. 510 (2003). Kevin Wiggins was convicted of first degree murder, robbery, and theft. Wiggins’ attorneys failed to present evidence of their client’s difficult childhood including evidence of alcoholic parents and sexual abuse by his foster parents. The Supreme Court found their performance to be deficient not because they failed to present the mitigating evidence, but because they failed to investigate
mitigating factors. A court will be hesitant to second guess trial strategy if an attorney determines that a clients background would not be helpful in trial, but the decision not to pursue such avenues must be based on professional judgment, not failure to investigate. Ex Parte Woods, 176 S.W.3d 224, 228 (Tex.Crim.App. 2005). Don’t limit your investigation just to people. School, military, CPS, medical, and prior criminal records all can provide insight into the human being that your client is. You know that the State is going to introduce that aggravated robbery charge, so find the records that mitigate the prior offense. The State is going to show one side and one side only of your client. Your job is to paint the rest of the picture. B. Medical Experts
and
Psychological
Medical and scientific advances are beginning to call into question the volition behind many criminal acts. Minor changes in the balance of brain chemistry, even small ones, can cause large and unexpected changes in behavior. See e.g. David Eagleman, “The Brain on Trial”, The Atlantic (July/August 2011), available online at http://www.theatlantic.com/magazine/arch ive/2011/07/the-brain-on-trial/8520/1/. Beyond biological changes brought on by drugs and disease, our very ability to make appropriate choices is influenced by our beginning biology and the environment we grow up in. Our client’s
mother’s substance abuse during pregnancy, low birth weight, neglect and physical abuse as a child, head injuries, and untreated childhood disease all affect development and accordingly their adult ability to control behavior. Alternatively, consider a completely well developed adult and introduce completely legal medication such as Xanax, Lunestia, or Ambien and you can and will find bizarre and frightening results. It is extremely important that all of these avenues be researched and it is our duty as attorneys to educate ourselves on our client’s issues and situations. In your interviews with friends, family, and doctors find out what medication your client is on and what medical problems they have. Know the side effects of the medication your client is taking. Familiarize yourself with more common psychological disorders to be able to spot them in clients who may have never been diagnosed. When friends and family tell you that the criminal actions your client is accused of are completely out of character ask yourself, “What is causing it then?” A change in medication? An undiagnosed issue? Remember, it was a nickel-sized brain tumor on the thalamus of Charles Whitman’s brain that caused him to kill 13 people and wound 32 more from the UT Tower in 1966. In order to be able to truly assist your clients you will at some point need expert assistance. Psychologist, psychiatrists, medical doctors, therapists, pharmacologists and so on can help with biological and developmental explanations
and mitigation. Gang experts, parole experts and prison consultants can help convince a judge or jury that a shorter sentence with rehabilitation would be more beneficial than long term incarceration. The goal is to explain the factors that led to a bad decision, and how those risk factors can be taken away in the future through treatment, medication, and rehabilitation. If your client, either appointed or retained, is indigent and cannot afford to pay for necessary expert assistance you must request for court funds pursuant to Ake v. Oklahoma, 470 U.S. 68 (1985). If you cannot get the money you need to properly investigate your case, you should move to withdraw. Ex Parte Briggs, 187 S.W.3d 458, 468 (Tex. Crim.App. 2005). IV. Technical Considerations A. Enhancing Ranges of Punishment Attached at the end of this paper is a flowchart of the standard punishment ranges and enhancements under §12.42 of the Penal Code. This is only a starting place. For every case step through your information or indictment for the charge itself and every enhancement allegation. There are specific enhancements to different types of crimes (e.g. multiple charges of DWI, Burglary of a Motor Vehicle, Evading Arrest, or Prostitution) and different enhancements outside the charges themselves. A Drug Free Zone enhancement, found in Texas Health and Safety Code §481 will not only increase
the potential jail time for your client, but can also make the sentence automatically stacked. TEX. HEALTH & SAFETY C ODE § 481.134(h). Also don’t be surprised if the State is attempting to enhance something improperly. Go through each and every charging instrument every time. Different enhancement rules apply to different levels of charges. It is important to figure out if the charge your client is facing has been enhanced, or only the punishment range. State Jail Felonies will always be State Jail Felonies. Even if the punishment is enhanced by prior State Jail or penitentiary trips, they are still State Jail convictions. This does two things: First is that your client can never face more than second degree penalty ranges for a State Jail offense, 2 – 20 years. See Dickson v. State, 986 S.W.2d 799, 803 (Tex. App. Waco 1999). Second is that even if a prior charge has been enhanced to penitentiary level punishment, a State Jail offense can never be used to enhance a 1st , 2nd, or 3rd degree felony. Campbell v. State, 49 S.W.3d 874, 877 (Tex. Crim. App. 2001). Remember too that in enhancing 1 , 2 , and 3rd degree felonies, “the State carries the burden of proving beyond a reasonable doubt that a defendant’s second previous felony conviction was committed after the defendant’s first previous felony conviction became final” Jordan v. State, 256 S.W.3d 286 (Tex. Crim. App. 2008). A conviction is not final if a case is appealed. Jones v. State, 711 S.W. 2d 634, 636 (Tex. Crim. App. 1986). If the evidence of a prior st
nd
conviction raises the question of an appeal or final disposition, the State has the burden of making a prima facie showing of finality. Id. Finally remember that even if your client is convicted, but is given community supervision, the conviction is not final (so cannot be used to enhance) unless the community supervision is revoked. Ex Parte White, 211 S.W.3d 316 (Tex. Crim. App 2007) citing Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992), citing Ex parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978). (“[i]t is well-settled that a probated sentence is not a final conviction for enhancement purposes unless it is revoked”). More importantly, if a conviction is set aside after probation pursuant to Texas Code of Criminal Procedure 42A.701(f) that person “is not a convicted felon.” Cuellar v. State, 70 S.W.3d 815, 818 (Tex. Crim. App 2002) (emphasis in original). Rudy Cuellar was convicted of Unlawful Possession of a Firearm by a Felon, but had his conviction overturned because the underlying predicate felony was discharged after community supervision. Id. The Legislature has made an exception where some probated sentences can be used to enhance in Texas Penal Code §12.42(g). Check all of the enhancements that the State is attempting to use against your client, and make sure they are actually useable to enhance. On a practical note, try and be strategic in how you deal with
enhancement paragraphs. Remember that just because an enhancement is presented the judge or jury does not have to find them true. They must be proven beyond a reasonable doubt. This can create an equitable argument for your client who is facing 25 – Life because of two prior felony convictions that were from thirty years ago. There is no legal basis for a judge or jury ignoring proof of a prior, but it can be done. Alternatively, if you are looking at deferred probation when enhancement paragraphs are present, ask your judge to defer a finding on the enhancement paragraphs as well. That way if revoked, your otherwise 25 – Life client may still have some wiggle room if you can work out a plea. B. Stacking The concurrent or cumulative imposition of sentencing is governed by Texas Code of Criminal Procedure §42.08 and Texas Penal Code §3.03. For multiple offenses out of the same criminal episode that are prosecuted in one trial the sentenced must run concurrently unless they fall under the exceptions to §3.03, or are specific in the charge as with Drug Free Zones mentioned above. A ‘criminal episode’ is defined as multiple crimes are in the same transaction or toward a common goal, or are the repeated commission of the same crime. TEX. PENAL CODE § 3.01. The same offense committed on separate days, constitutes the same criminal episode. White v. State, 543 S.W.2d 130, 131 (Tex. Crim. App. 1976). If offenses are "similar" is a question of judicial interpretation. In
Barker v. State, even though three offenses were directed at three different victims on multiple days because each was a woman, living in the same town, attacked in or near her home, while she was alone in the early morning hours the three offenses were considered similar offenses. Baker v. State, 107 S.W.3d 671, 673 (Tex. App. San Antonio 2003, no pet.). If the offenses are out of multiple criminal episodes, or if they are tried separately, the decision to run sentences concurrently or consecutively is completely in the discretion of the Judge. TEX CODE CRIM PROC. §42.08. Even if you elect to have a Jury assess punishment, a Judge may still stack punishments within their discretion. Barrow v. State, 207 S.W.3d 377, 379-380 (Tex. Crim. App. 2006). Make sure to check that the offense you are defending is not stackable, or mandatorily stacked. One way to get around mandatory stacking is to plea bargain or have your client found guilty of an ‘attempt’ of the offense. A conviction for an attempt to commit one of the offenses under Section 3.03 does not qualify for the stacking of sentences. Parfait v. State, 120 S.W.3d 348, 350 (Tex. Crim. App. 2003). The exceptions to mandatory concurrency are included on the enhancement flowchart at Appendix B.
C. Judge vs. Jury The determination of whether you will present your case for punishment to Judge or Jury will largely be a case by case determination. It will depend on the Judge you are in front of, the jury pool you can expect to draw from, and how your specific facts will play to each one. Take the time to research who you will be arguing to. If you are not familiar with a Judge or jurisdiction, ask attorneys who have practiced there before. One Judge may be great to bring a certain case to while the other may max your client out. In either instance, you must make the election for punishment prior to the beginning of voir dire. If an election is not made then punishment will be determined by the Judge. TEX CODE CRIM PROC. 37.07 §2(b). In order to elect for a Jury to assess punishment the request must be made in writing prior to the beginning of jury selection. Id. After a finding of guilty you can change your election of who will assess punishment, but only with the consent of the State. Id. Aside from personality determinations on who will assess punishment there are some technical matters to keep in mind. The Judge is the only person who can give your client Deferred Adjudication Probation, and then only on a plea of guilty or nolo contendre. TEX CODE CRIM PROC. 42A.101. As an interesting side note, depending on the Judge you are in front of, the Judge may still acquit your client upon a plea of nolo contendre. See In re State ex rel.
Villalobos, 2006 Tex. App. LEXIS 109, 2006 WL 20617 (Tex. App. Corpus Christi Jan. 3, 2006) (mem. op., not designated for publication). In contrast, a Judge cannot give straight probation in cases that involve a finding of a deadly weapon, murder, capital murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, aggravated robbery, sexual assault, injury to a child in the first degree, sexual performance of a child, criminal solicitation in the first degree, if there is an affirmative finding of a Drug Free Zone or that a child was used in a drug offense, or when the minimum punishment is over ten years. See TEX CODE CRIM PROC. 42A.054 and Appendix B. Many, but not all, of those charges can receive deferred adjudication. If you elect to have a jury assess punishment then the Judge is required to suspend the sentence if it is recommended by the jury and the defendant otherwise qualifies. TEX CODE CRIM. PROC. 42A.055. In order to qualify, the Defendant must have not been previously convicted of a felony and must file a sworn motion before the commencement of trial to that fact. TEX CODE CRIM. PROC. 42A.055(b). The length of the community supervision cannot be less then the penalty recommended by the jury. TEX CODE CRIM PROC. 42A.053(d)(1). For example, if the jury returns a sentence of five years with a recommendation for community supervision, the least amount of community supervision the judge can impose is five years. Remember, even a jury cannot recommend community
supervision for a sentence over ten years, or for a conviction for indecency with a child, aggravated sexual assault, sexual assault, sexual performance by a child, aggravated kidnapping of a child under 14 with the intent for sexual abuse, or murder. TEX CODE CRIM. PROC. 42A.056. Additionally a jury cannot recommend community supervision if there is an affirmative finding of a drug free zone when there has been one in the past. Id. The other consideration to make when presenting a punishment case to a jury is how to start preparing them in voir dire. It can seem weird to talk to a jury about punishing your client in the same breath that you’re reminding them about the high burden of beyond a reasonable doubt and how your client is innocent until proven guilty. It doesn’t have to be though. In fact, ferreting out jurors’ opinions on punishment and rehabilitation can often help identify those jurors who would be better or worse during the guilt and innocence portion of your trial. It is a proper question to ask the panel what factors they feel are important in assessing a sentence. Davis v. State, 349 S.W.3d 517, 519 (Tex. Crim. App. 2011). It is also proper to ask prospective jurors if they can follow charging instructions not to consider parole, and if they can consider the entire range of punishment. Jones v. State, 223 S.W.3d 379, 382 (Tex. Crim. App. 2007) Knowing what buttons may press a juror one way or another can assist not only in punishment but also when presenting your client’s case which will hopefully keep you from having to make that punishment case at all.
D. Community Supervision Too often prosecutors, and even our judges and jurors, think that probation is akin to an acquittal. It is anything but. Knowing what Community Supervision is, and what it is not, can help you overcome this perception and get your client on probation if that is what they want. More importantly knowing ahead of time what probation is really going to mean for your client will help you plan accordingly to advocate for that goal. As noted above there are two types of community supervision: deferred adjudication or a suspended sentence a.k.a. straight probation. Deferred adjudication probation, while potentially beneficial because there is no finding of guilt, has limitations and potential liabilities that should be considered. Only a judge can grant deferred adjudication. TEX CODE CRIM PROC. 42A.101 A judge cannot grant deferred adjudication in a number of cases, enumerated in Appendix B. Additionally, your client will face the entire range of punishment on a showing that they violated their deferred community supervision. It is important to consider what is more important: avoiding a final conviction or limiting your client’s potential exposure to incarceration down the road. Finally, remember that deferred adjudication will not remove the entire taint of a guilty plea. Even after dismissal and discharge, deferred adjudication can be used in subsequent punishment proceedings. TEX C ODE CRIM PROC. 42A.111 It can also be used in
consideration for certain licenses, and cannot remove affirmative findings of family violence or requirements under the Sex Offender Registration Program. Id. Deferred adjudication will also usually be treated the same as a finding of guilt for deportation and removal proceedings with Immigration. Moosa v. INS, 171 F.3d 994, 1005-06 (5th Cir. 1999) (holding that deferred adjudication is considered a conviction for immigration purposes). In contrast a suspended sentence or straight probation is where your client is sentenced to some term in jail or prison and then that sentence is suspended pending some period of time on community supervision. In this type of probation your client is convicted of the underlying crime, and will remain so without additional action by a judge. See TEX CODE CRIM PROC. 42A.701 With both straight and deferred probation it is important to be familiar with what is going to be required of your client. Beyond any fine imposed and costs of court a probationer will be responsible for monthly supervision fees up to $60 per month, urinalysis and drug testing fees, costs for classes required by probation, and community service hours. They are required to maintain their residence in the county of their supervision, allow visitations to their home on request, and report to their officer as often as ordered. These are just some of the standard conditions for probation spelled out by TEX CODE CRIM PROC. 42A.301 Add to that special programs for DWI convictions (42A.403
& 404), drug rehabilitation (42A.4045), sex offender classes (42A.258), jail time as a condition of probation (42A.302) and it’s easy to see that probation is no walk in the park. Additionally be aware that §42A.301 gives the Judge the ability to impose “any reasonable condition that is designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the defendant.” TEX CODE CRIM PROC. 42A.301(a). This includes confinement as a condition of probation, which can be added at any time during the probation. TEX CODE CRIM PROC. 42A.302. There are limitations on conditions of probation that a judge may impose based on your client’s ability to pay for those conditions. A judge must consider the ability of a defendant to make payments before imposing monetary conditions as a condition of probation. TEX. CODE CRIM. PROC. 42A.655 The trial court’s ability to order terms and conditions of probation is limited to the ability of the defendant to pay. Mathis v. State, 424 S.W.3d 89, 94 (Tex. Crim. App. 2014). The reason to be aware of what may be required of your client is threefold. The first is when making a plea for probation to judge or jury you can use this information to remind them that probation is not letting your client get away with anything. The State will often argue that probation is somehow the same as an acquittal, which is simply not the
case. The second is to be aware of what conditions are usually imposed, what conditions are going to be imposed, and argue for your clients on what should be imposed. Conditions of probation are completely within the discretion of the judge, which means that conditions can be added or taken away depending on what we ask for. Finally, make sure that probation is the right thing for your client. Is it in their best interest to have 25 – life hanging over their head with a pretty good chance they will violate their probation? Should they place themselves under the control of the court for up to ten (possibly 20 if they start with deferred probation and are later revoked to straight probation) years when they could resolve the case with some relatively small amount of jail time? These are important factors to consider when deciding on what to ask for in a punishment case. V. Conclusion Let’s be honest, punishment is the last place that any defense attorney really wants to be. It means we lost, right? No. Not necessarily. The more important half of the fight is what will happen to our clients after they’ve been found guilty. The conviction on their record is going to mean a lot less than the number of days, months, or years that they will be spending in prison. Punishment is the place that with good preparation and a little creativity we can make a real difference for our clients.
Appendix - Penalty Levels - Punishment Enhancement - Community Supervision - Unpacking §481.134 - Drug Free
Penalty Level
Community Supervision
Capital Felony · Death or Life Imprisonment
Ineligible for Community Supervision
First Degree Felony · Confinement for life or a term from 5 to 99 years in prison and; · An optional fine not to exceed $10,000
· Up to 10 years Deferred Adjudication · Up to 10 years post conviction supervision for sentences under 10 years · Up to 180 days in county jail as condition of probation
Second Degree Felony · Confinement for a term from 2 to 20 years in prison and; · An optional fine not to exceed $10,000
· Up to 10 years Deferred Adjudication · Up to 10 years post conviction supervision for sentences under 10 years · Up to 180 days in county jail as condition of probation
Third Degree Felony · Confinement for a term from 2 to 10 years in prison and; · An optional fine not to exceed $10,000
· Up to 10 years Deferred Adjudication · Up to 10 years post conviction supervision · Up to 180 days in county jail as condition of probation
State Jail Felony · Confinement for a term from 180 days to 2 years in state jail and; · An optional fine not to exceed $10,000
· Up to 10 years of Deferred Adjudication · Initial 2 – 5 years of post conviction supervision; extendable to 10 years · Up to 90 days in county jail as condition · From 90 – 180 days in state jail as condition · From 90 – 365 days in state jail if offense is delivery of marihuana or penalty group 1, 1A, or 2 controlled substance · 90 – 180 additional days in state jail as a condition following violation of condition of supervision
May be found guilty of a felony offense and punished as a Class A Misdemeanor – PC 12.44(a) At the request of Prosecuting Attorney, any State Jail Felony may be prosecuted as a Class A Misdemeanor – PC 12.44(b)
Class A Misdemeanor · Confinement for a term not to exceed 1 year in county jail and/or; · A fine not to exceed $4000
· Up to 2 years of Deferred Adjudication · Up to 2 years of post conviction supervision extendable to 3 years
Class B Misdemeanor · Confinement for a term not to exceed 180 days in county jail and/or; · A fine not to exceed $2000
· Up to 2 years of Deferred Adjudication · Up to 2 years of post conviction supervision extendable to 3 years
Class C Misdemeanor · No Confinement · A fine not to exceed $500
· Up to 180 days of Deferred Adjudication
Punishment Enhancement Penal Code §12.42 Non-State Jail Felony Enhancement
State Jail Felony Enhancement
One Prior Non-State Jail Felony Conviction
SJF + 2 SJF Convictions ····························· 3rd Degree either concurrent or in sequence
3rd Degree ················ 2nd Degree 2nd Degree ················ 1st Degree 1st Degree ················ 15 – 99 years or life
SJF + 2 Felony Convictions in sequence ··········· 2nd Degree
Two Sequential Prior Non-State Jail Felony Convictions
SJF + Deadly Weapon or one Prior 3g offense ······ 3rd
1st, 2nd, or 3rd Degree ·········· 25 – 99 years or life
SJF + Deadly Weapon and any prior non SJF ······ 2nd
Misdemeanor Enhancements
* Note: Unlike penitentiary enhancements, State Jail Felony Enhancements can be concurrent convictions.
Class A + Prior Class A Or Any Felony ······· 90 – 365 days Class B + Prior Class A, B or Any Felony ····· 30 – 180 days Class C Public Intoxication or Disorderly Conduct + 3 prior of either within last 24 months is enhanced to Class B Punishment
** Note: The State cannot ‘double enhance’, using prior convictions to increase a State Jail Felony to a 3rd or 2nd Degree Felony and then enhancing under PC 12.42(c) or (d). The highest a SJF can be enhanced to would be a second degree felony. Gonzalez v. State, 915 S.W.2d 170 (Tex. App. Amarillo 1996, no pet.)
Automatic Life Sentences – CCP 12.42(c)
Special Enhancements
Auto Life for:
PC 12.47 PC 12.49
Trafficking Child for Sex Indecency w’ Child by Contact Agg Sex Assault Sexual Assault Agg Kidnap w’ Sexual Assault Burg Hab w’ Sexual Assault
-PC 20A.02(a)(7) (8) - PC 21.11(a)(1) - PC 22.021** - PC 22.011 - PC 20.04(a)(4) - PC 30.02(d)
If Previously Convicted of: Trafficking Child for Sex -PC 20A.02(a)(7) (8) Continuous Sex Abuse Child - PC 21.02 Indecency with a Child - PC 22.11 Sexual Assault - PC 22.011 Agg Sex Assault - PC 22.021 Prohibited Sexual Contact - PC 25.02 Burg Hab w’ Sexual Assault - PC 30.02(d) Obscenity Depicting a Child - PC 43.23(h) Sexual Performance by Child - PC 43.25 Child Pornography - PC 43.26 Agg Kidnap w’ Sexual Assault - PC 20.04(a)(4) Similar Laws Different State - PC12.42(c)(2)(v)
Bias or Prejudice Use of a Controlled Substance to Commit an Offense PC 12.50 Crime Committed in a Disaster Area PC 71.028 Gang Free Zone HSC 481.134 Drug Free Zones HSC 481.140 Use of a Child in a Drug Transaction Stackable Offenses PC 20A.02 Trafficking of Persons PC 21.02 Continuous Sexual Abuse Child PC 21.11 Indecency With a Child PC 21.15 Improper Photography PC 22.011 Sexual Assault PC 22.021 Aggravated Sexual Assault PC 22.04 Injury Child/Eld/Disabled SBI PC 25.02 Prohibited Sexual Contact PC 33.021 Online Solicitation of a Minor PC 43.05 Compelling Prostitution PC 43.25 Sexual Performance By Child PC 43.26 Child Pornography PC 49.07 Intoxication Assault PC 49.08 Intoxication Manslaughter Code Crim Pro 42.0197 – Affirmative Finding of Gang Conduct Health and Safety Code § 481.134(h) – Drug Free Zone (mandatory stacking)
Community Supervision – Code of Criminal Procedure §42.12 No Judge Ordered Supervision CCP 42A.054
Community
No Jury Ordered Community Supervision CCP 42A.056
PC 1.07
Aff. Finding Deadly Weapon
CCP 42A.056(1)
Sentence over ten years
PC 15.03
1 Degree Criminal Solicitation
CCP 42A.055(b)
Prior felony convictions
PC 19.02
Murder
HSC 481.134
PC 19.03
Capital Murder
Drug Free Zone with Prior finding of Drug Free Zone
PC 20.04
Aggravated Kidnapping
PC 20A.02
Trafficking of Persons
PC 20A.02
Trafficking of Persons
PC 21.11(a)(1)
Indecency With Child under 14
PC 22.011
Sexual Assault under 14
PC 22.021
Aggravated Sex Assault under 14
PC 20.04
Aggravated Kidnapping under 14
st
PC 21.11(a)(1) Indecency With Child PC 22.011
Sexual Assault
PC 22.021
Aggravated Sex Assault
PC 22.04(a)(1) 1st Degree Injury to Child PC 29.03
Aggravated Robbery
PC 30.02
Burglary with intent sex assault
PC 43.05
Compelling Prostitution
PC 43.25
Sexual Performance Child
HSC 481.140
Child in Drug Case
HSC 481.134
Drug Free Zone w/ prior
with intent sex abuse PC 43.05
Compelling Prostitution
PC 43.25
Sexual Performance Child
PC 19.02
Murder
PC 19.03
Capital Murder
No Deferred Adjudication Supervision CCP 42A.102 *PC 19.02 Murder **PC 21.11 Indecency with a child **PC 22.011 Sexual Assault **PC 22.021 Aggravated Sexual Assault PC 21.02 Continuous Sex Assault Child PC 22.021 Agg. Sex Child under 6 y/o or; -Under 14 & Kidnapping or SBI -Capital Sex Assault PC 49.04 Driving While Intoxicated PC 49.045 DWI with Child PC 49.05 Flying While Intoxicated PC 49.06 Boating While Intoxicated PC 49.065 Assembling or Operating An Amusement Ride While Intoxicated PC 49.07 Intoxication Assault PC 49.08 Intoxication Manslaughter HSC 481.134 Drug Free Zone with prior DFZ
* Can still defer if a finding that Defendant did not cause, intend, or anticipate that human life would be taken. * With a showing of prior community supervision for Indecency, Sex Assault, or Agg. Sex Assault.
Unpacking The Drug Free Zone – Texas Health And Safety Code §481.134 481.134(b) (1000ft of Institution of Higher Learning, youth center, playground, or 300 feet of public pool or video arcade) (SFJ = Punished 3rd Degree; 2nd = Punished 1st Degree) HSC 481.112 HSC 481.1121 HSC 481.113 HSC 481.114 HSC 481.120
MFG/DEL PG1 MFG/DEL PG1-A MFG/DEL PG2 MFG/DEL PG3 Delivery of Marihuana
HSC 481.134(c) (1000 ft of a School, public or private youth center, playground, or school bus) (minimum confinement + 5yrs & double max fine) 481.112(c), (d), (e), (f) 481.1121(b)(2), (3), or (4) 481.113(c), (d), (e) 481.114(c), (d), (e) 481.115(c) – (f) 481.1151(b)(2), (3), (4), (5) 841.116(c), (d), (e) 481.1161(b)(4), (5), (6) 481.117(c), (d), (e) 481.118(c), (d), (e) 481.120(b)(4), (5), (6)
MFG/DEL PG1 MFG/DEL PG1-A MFG/DEL PG2 MFG/DEL PG3 Possession PG1 Possession PG1-A Possession PG2 Possession PG2-A Possession PG3 Possession PG4 Delivery of Marihuana
2nd Degree or Higher (one gram or higher) 2nd Degree or Higher (20 units or higher) 2nd Degree or Higher (one gram or higher) 2nd Degree or Higher (28 grams or higher) 3rd Degree or Higher (more than one gram) 3rd Degree or Higher (more than 20 units) 3rd Degree or Higher (more than one gram) 3rd Degree or higher (50 lbs or more) 3rd Degree or higher (28 grams or more) 2nd Degree or higher (200 grams or more) 2nd Degree or higher (50 lbs or more)
HSC 481.134(d) (1000ft of premise of School or School Board, youth center, playground, or school bus) (becomes a felony of the third degree) 481.112(b) 481.1121(b)(1) 481.113(b) 481.114(b) 481.115(b) 481.1151(b)(1) 481.116(b) 481.1161(b)(3) 481.120(b)(3) 481.121(b)(3)
Man/Del PG1 Man/Del PG1-A Man/Del PG2 Man/Del PG3 PCS PCS 1-A PCS PG2 PCS PG2-A Delivery of Marihuana POM
SJF (less than one gram) SJF (less than 20 units) SJF (less than one gram) SFJ (less than 28 grams) SJF (less than one gram) SJF (less than 20 units) SJF (less than one gram) SJF (more than 4oz less than 5 lbs) SJF (more than 1/4oz less than 5lbs) SJF (more than 4oz less than 5 lbs)
HSC 481.134(e) (1000ft of premise of School or School Board, youth center, playground, or school bus) (becomes a SJF) 481.117(b) 481.119(a) 481.120(b)(2) 481.121(b)(2)
PCS PG3 Class A Misd (less than 28grams) Misc. Cont. Sub. Class A Misd Del of Marihuana Class A Misd (less than 1/4 oz w/remuneration) POM Class A Misd (less than 4oz more than 2oz)
HSC 481.134(f) (1000ft of premise of School or School Board, youth center, playground, or school bus) (becomes a Class A Misd.) 481.118(b) 481.119(b) 481.120(b)(1) 481.121(b)(1)
PCS PG4 Misc Cont. Sub Del of Marihuana POM
Class B Misd (less than 28 grams) Class B Misd Class B. Misd (less than 1/4foz w/o remuneration) Class B. Misd (less than 2oz)
HSC 481.134(g) – does not apply if in private residence & no kids present HSC 481.134(h) – automatic stacking
Texas Criminal Defense Lawyers Association 36th Annual Rusty Duncan Advanced Criminal Law Course June 15-17, 2023 Hyatt Regency 123 Losoya St. San Antonio, Texas 78205
Annual 4th Amendment Review of Leading Cases
Speaker:
Gerry Goldstein
Goldstein & Orr 310 S Saint Marys St Ste 2900 San Antonio, TX 78205 210.226.1463 phone 210.226.8367 fax gerrygoldsteinlaw@gmail.com email www.ggandh.com website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
FOURTH AMENDMENT (Annual 4th Amendment Review of Leading Cases)
36th Annual Rusty Duncan Seminar June 15-17, 2023
Presented by: GERALD H. GOLDSTEIN 29th Floor Tower Life Building San Antonio Texas 78205 (210) 226-1463 gerrygoldsteinlaw@gmail.com
GOLDSTEIN & ORR 29TH FLOOR TOWER LIFE BUILDING 310 S. ST. MARY’S STREET, SUITE 2900 SAN ANTONIO, TEXAS 78205
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Table of Contents INTRODUCTION......................................................................................................................... 5 WHAT CONSTUTES A SEARCH FOR 4TH AMENDMENT PURPOSES ........................... 5 CONTINUED VIABILITY OF THE “EXCLUSIONARY RULE” ........................................ 6 Hudson v. Michigan, 547 U.S. 586 (2006): ............................................................................ 7 Herring v. U.S., 555 U.S. 135 (2009): .................................................................................... 9 Davis v. U.S., 564 U.S. 229 (2011): ...................................................................................... 10 PROTECTING THE CITIZENRY FROM ITS PROTECTORS .............................................. 11 U.S. v. Leon, 468 U.S. 897 (1984): ....................................................................................... 12 SUBJECTIVE VS OBJECTIVE INTENT OF THE OFFICER ................................................ 14 COLLECTIVE BAD FAITH .................................................................................................... 14 (WHAT IS GOOD FOR THE GOOSE) .................................................................................... 14 FRANKS-TYPE MISREPRESENTATIONS............................................................................ 15 MATERIAL OMMISSIONS AS MISSTATEMENTS ............................................................ 15 MAGISTRATE MUST BE “NUETRAL AND DETACHED” ................................................ 16 AFFIDAVIT TOTALLY LACKING IN PROBABLE CAUSE ............................................... 16 FACIALLY DEFICIENT WARRANT .................................................................................... 17 RELIABILITY OF THE INFORMANT AND INFORMATION ............................................ 17 MISTAKE OF LAW BY POLICE IS AN EXCUSE ................................................................. 17 Heien v. North Carolina, 135 S.Ct. 530 (2014): ................................................................... 17 “ATTENUATION” OF THE INITIAL ILLEGALITY.......................................................... 18 Utah v. Strieff, 136 S.Ct. 27 (2015): ..................................................................................... 18 UNAUTHORIZED DRIVER’S STANDONG TO COMPLAIN OF THE SEARCH OF A RENTAL VEHICLE .................................................................................................................. 20 Byrd v. United States, 138 S.Ct. 1518 (2018) ....................................................................... 20 District of Columbia v. Wesby, 138 S.Ct. 577 (2018): ......................................................... 21 WARRANTLESS BLOOD DRAW FROM UNCONSCIOUS SUSPECT ............................ 21 Mitchell v. Wisconsin, 139 S. Ct. 2525, 204 L. Ed. 2d 1040 (2019):.................................... 21 DIGITAL IS DIFFERENT ........................................................................................................ 22 Riley v. California, 134 S. Ct. 2473 (2014): ......................................................................... 22 CELL TOWER LOCATION INFORMATION (CSLI) ......................................................... 23 Carpenter v. United States, 138 S.Ct. 2206 (2018): ............................................................. 23 FROM PORCHES TO DRIVEWAYS ..................................................................................... 27 Florida v. Jardines, 569 U.S. 1 (2013): ................................................................................ 27 Collins v. Virginia, No. 138 S.Ct. 1663 (2018): ................................................................... 30 TRACKING WITH A GLOBAL POSITIONING SYSTEM (GPS) ..................................... 31
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U.S. v. Jones, 565 U.S. 400 (2012): ...................................................................................... 31 OVER BREADTH AND GENERAL SEARCHES ................................................................. 33 NEXUS BETWEEN PROBABLE CAUSE AND .................................................................... 34 THE PLACE TO BE SEARCHED ........................................................................................... 34 PROSECUTION SHOULD BEAR THE BURDEN ................................................................. 37 OF DEMONSTRATING “GOOD FAITH” .............................................................................. 37 “GOOD FAITH” RELIANCE ON SUMMONS ....................................................................... 37 “GOOD FAITH” EXCEPTION APPLIES TO WARRANTLESS ADMINISTRATIVE SEARCHES AUTHORIZED BY STATUTE LATER FOUND UNCONSTITUTIONAL . 38 Illinois v. Krull, 480 U.S. 340 (1987): .................................................................................. 38 OTHER WARRANTLESS SEARCHES.................................................................................. 39 City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015): .......................................................... 39 Rodriguez v. United States, 135 S. Ct. 1609 (2015): ............................................................ 40 Akinmboni v. United States, 126 A.3d 694 (D.C. Ct. App. 2015): ........................................ 41 DIGITAL SEARCHES............................................................................................................... 42 USE OF SOPHISTICATED TECHNOLOGY ........................................................................ 43 “GOOD FAITH” MUST BE OBJECTIVE.............................................................................. 44 “UNREASONABLE DELAY” BEFORE PRESENTMENT AS GROUNDS FOR SUPPRESSION OF CONFESSION ......................................................................................... 46 Corley v. United States, 556 U.S. 303 (2009) ....................................................................... 46 STATES ARE FREE TO PROVIDE GREATER PROTECTIONS TO THEIR CITIZENS .... 47 Lego v. Twomey, 404 U.S. 477 (1972). ................................................................................. 47 SEVERAL STATES HAVE REJECTED ANY LEON “GOOD FAITH” EXCEPTION ......... 50 SUBJECTIVE INTENT OF THE OFFICERS ........................................................................ 53 INVADING THE THRESHOLD OF ONE’S HOME............................................................. 54 CONSENSUAL SEARCHES ................................................................................................... 55 REMOVING THE NON-CONSENTING ................................................................................ 55 SPOUSE FROM PREMISIS ..................................................................................................... 55 Fernandez v. California, 571 U.S. 292 (2014). .................................................................... 55 EXIGENT CIRCUMSTANCES ................................................................................................ 56 Kentucky v. King, 563 U.S. 452 (2011)................................................................................. 56 WARRANTLESS BLOOD DRAW ......................................................................................... 58 Missouri v. McNeely, 569 U.S. 141 (2013). .......................................................................... 58 DNA SAMPLE TAKEN AT BOOKING.................................................................................. 60 Maryland v. King, 569 U.S. 435 (2012). ............................................................................... 60 DEADLY FORCE AND THE FOURTH AMENDMENT ....................................................... 62 Mullenix v. Luna, 136 S.Ct. 305 (2015) (per curiam)........................................................... 62 EROSION OF THE EXCLUSIONARY REMEDY ................................................................ 64 BURDEN SHIFTING ............................................................................................................... 66 3
THE VANISHING “FRUIT OF THE POISONOUS TREE” DOCTRINE .............................. 66 CONCLUSION ........................................................................................................................... 67
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INTRODUCTION Despite early signs to the contrary, the new majority of the Supreme Court appears on course to continue the slow-but-steady deconstruction of many time-honored Constitutional protections, once considered sacrosanct by fellow lawyers, courts and the citizenry in general. Nowhere has this trend been more evident than with respect to a citizen’s right to privacy. Whether addressing the continuing debate over the appropriate test for what constitutes a 4th Amendment violation in the first instance, or what remedy to apply if we conclude that such a violation has occurred, the future course of protecting our citizens’ Constitutional right to privacy appears to be in jeopardy. The Constitutional protections provided by the 5th and 6th Amendment appear to be fairing not much better. This paper is one lawyer’s modest attempt to address these and other timely issues confronting the Court and our Country in these times of turmoil and crisis. Hopefully, by examining what may be going wrong, together we can find a way to right our ship of state and set her back on course, preserving the rights and liberties our founding fathers intended the Constitution to protect.
WHAT CONSTUTES A SEARCH FOR 4TH AMENDMENT PURPOSES There remains a continuing debate as to precisely what the 4th Amendment right of privacy protects. In one camp are those clinging to the belief that the test for determining whether a search has occurred depends upon whether the police have physically trespassed upon one of the areas expressly enumerated in the Constitution (i.e. persons, houses, papers and effects). See Justice Scalia’s majority opinion in United States v. Jones, 565 U.S. 400 (2012), and Justice Gorsuch’s dissent in Carpenter v. United States, 138 S.Ct. 2206 (2018), where he notes that “[t]he Amendment's protections do not depend on the breach of some abstract ‘expectation of privacy’ whose contours are left to the judicial imagination”: “Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period.” 5
On the other hand, there are those who have a more expansive view, holding to Justice Harlan’s analysis, that the right of privacy protects “people not places,” and that the correct test for determining whether a search has occurred is dependent upon whether the citizen’s “reasonable expectation of privacy” has been invaded.
See Katz v. U.S., 389 347 (1967) (Harlan, J.,
concurring); See also Justice Kagan’s concurrence in Jardines, 569 U.S. 1 (2013). To further complicate the matter, Justice Scalia suggests in Jardines that the two tests are not mutually exclusive, rather the Katz’ “expectation of privacy” test for determining what constitutes a search “is not a substitute for, but…an alternate to the physical intrusion approach.” And then there is the view expressed by Justice Gorsuch as a sitting judge on the 10th Circuit Court of Appeals, before he was appointed to the Supreme Court, that this whole dispute is really a distinction without a difference. “So, it seems that, whether we analyze the ‘search’ question through the lens of the government’s preferred authority — Katz — or through the lens of the traditional trespass test suggested by Jones, they yield the same (and pretty intuitive) result [opening someone’s] email constitute[s] a search.” If a search has occurred, the next step is whether or not that search is one requiring the government obtain a warrant. For this determination, an additional test is performed. The Court must analyze whether, in addition to being a search that invades one’s privacy, the search was required for the promotion of legitimate governmental interests. See Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) citing Riley v. California, 573 U.S. 373, 134 S. Ct. 2473 (2014). Regardless which definition or test the Court ultimately settles upon, the question of what remedy to apply if it is determined that a citizen’s right to privacy has been violated is one that has come under recent scrutiny.
CONTINUED VIABILITY OF THE “EXCLUSIONARY RULE” Once thought to be a given, the concept that evidence acquired as the fruit of illegal police conduct would be suppressed at trial has recently been called into serious question. In a trilogy of cases, Hudson v. Michigan, 547 U.S. 586 (2006), Herring v. U.S., 555 U.S. 135 (2009), and Davis v. U.S., 564 U.S. 229 (2011), the United States Supreme Court has raised serious questions
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regarding the continued viability of the exclusionary remedy for violations of a citizen’s privacy rights, except in limited and very difficult to prove circumstances. 1 Since the landmark case of Mapp v. Ohio, 367 U.S. 643 (1961), the exclusionary rule has functioned as the only practical mechanism to discourage and remedy violations of individuals’ rights by law enforcement officers. 2
Where evidence was discovered as the result of an
unreasonable (i.e. an unconstitutional) search or seizure, same necessarily mandated the suppression of that tainted evidence, except in certain well-defined cases. 3 (2016):
As Justice Sotomayor recently noted, dissenting in Utah v. Strieff, 136 S. Ct. 2056 “When ‘lawless police conduct’ uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.”
Recently, this seemingly well-settled and time-honored concept has been called into question. Hudson v. Michigan, 547 U.S. 586 (2006): With little fanfare and even less warning, Justice Scalia made the startling revelation that: “We have never held that evidence is ‘fruit of the poisonous tree’ simply because `it would not have come to light but for the illegal actions of the police.'" See Hudson, 547 U.S., at 592 (emphasis supplied) (Scalia, writing for a 5 to 4 majority). 4 Based upon the Court’s reasoning in Hudson, Herring, Davis, and Heien the majority now seem to require a showing that illegal police conduct resulting in the discovery of incriminating evidence be demonstrably “deliberate,” “culpable,” and “flagrant” in order to warrant the exclusionary remedy. 2 The Court in Mapp held that the exclusionary remedy, "founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice." Commonly referred to as the “imperative of judicial integrity.” See Mapp, 367 U.S., at 660 (Justice Clark, speaking for a 6 to 3 majority, held that “the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments” and “is not only the logical dictate of prior cases, but it also makes very good sense.” Justice Clark notes, as well that “by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold.” At 667). 3 As Justice Powell noted in U.S. v. Watson, 423 U.S. 411 (1976) "There is no more basic constitutional rule in the Fourth Amendment area than that which makes a warrantless search unreasonable except in a few 'jealously and carefully drawn' exceptional circumstances." at p. 427, Powell, J. concurring. Examples of recognized exceptions to the warrant requirement, include situations involving “exigent circumstances,” making obtaining a warrant difficult, if not impossible, See South Dakota v. Opperman, 428 U.S. 364 (1976), and vehicle searches, See Carroll v. U.S., 267 U.S. 132 (1925) (where the Court created a bright-line rule based upon the exigent circumstances rational). 4 Scalia’s pronouncement is, at best, arguable. See Alito’s subsequent opinion in Davis, where he explicitly calls into question Scalia’s suggestion that the Court had “never held that evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police,” noting that the Court has “abandoned the old, ‘reflexive’ application of the [exclusionary] doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits.” All of which also calls into question Wong Sun’s time honored “fruit of the poisonous tree” doctrine (that 1
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Previously, the Supreme Court had held in a unanimous opinion by Justice Thomas, that requiring officers with a search warrant to “knock and announce” their presence before entering a residence is a Constitutionally mandated requirement, See Wilson v. Arkansas, 514 U.S. 927 (1995). 5 Nevertheless, eleven years later, in an opinion authored by Justice Scalia, for a 5 to 4 majority, the Court determined that violations of the Fourth Amendment’s “knock-and-announce” requirement do not implicate the exclusionary rule. See Hudson v. Michigan, 547 U.S. 586 (2006). This idea, that citizens have Constitutional protections without any real mechanism to remedy their violations, is perplexing. 6 The opinion seems to have three lines of reasoning justifying that conclusion. The first is that the social costs of the exclusionary rule (i.e. suppression of material evidence in a criminal prosecution) substantially outweigh the potential deterrent effect of exclusion in knock-andannounce violations. Second, there now exist other means of deterring police actions that violate individual rights, including civil rights suits and civilian review boards. Finally, there is a substantially attenuated causal connection between the failure to announce entry and the recovery of evidence once inside. The Hudson Court reasoned that whether the exclusionary sanction is appropriate in a given case is an issue separate and apart from the question of whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police misconduct in the first place. Scalia writes: “Suppression of evidence…has always been our last resort, not our first impulse. The exclusionary rule generates ‘substantial social costs’…which sometimes include setting the guilty free and the dangerous at large…. We have…repeatedly emphasized that the rule’s all evidence and information obtained as a result of the police’s illegal conduct are suppressible as fruit of the poisonous tree). 5 In Wilson v. Arkansas, 514 U.S. 927 (1995), Justice Thomas, writing for a unanimous Supreme Court, had held that the “[t]he common law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.” Although it appears that waiting just 15 seconds after knocking, before breaking in, is sufficient to satisfy the knock-and-announce requirement in either the statute or the Constitution. See United States v. Banks, 540 U.S. 31 (2003), Justice Souter, writing for a unanimous Supreme Court. 6 Scalia writes in Hudson that a § 1983 civil rights lawsuit provides sufficient remedy for a 4th Amendment violation, noting that “[w]e cannot assume that exclusion in this context is a necessary deterrence simply because we found that it was a necessary deterrence in different contexts and long ago. That would be forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago. Dollree Mapp could not turn to 42 U. S. C. §1983 for meaningful relief.” However, it would seem axiomatic that neither judges or juries are likely to award substantial damages to one whose Constitutional violations have revealed evidence of their guilt in serious criminal activity.
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‘costly toll’ upon the truth-seeking and law enforcement objectives presents a high obstacle for those urging its application.” The opinion in Hudson is perhaps most disturbing for what it portends than what it holds. For many readers, the Court’s opinion foretells a future where constitutional rights are stripped of what may be the only truly effective means of judicial enforcement. If the exclusionary rule does not function to enforce a right, as a practical matter, does that right really exist? Will police and executive policy makers truly be deterred from constitutionally offensive conduct by the threat of a civil rights lawsuit? What other constitutional rights will the Court deem unworthy of a remedy such as the exclusionary rule? Relying upon the Supreme Court’s rationale in Hudson, lower courts have held the exclusionary rule inapplicable in a variety of circumstances. For example, the Ninth Circuit has now held that under Hudson, an officer’s failure to leave a copy of the executed warrant on the premises does not warrant suppression, even if the requirements to serve a copy of the warrant is of a constitutional dimension. See U.S. v. Hector, 474 F.3d 1150 (9th Cir. 2007). The Seventh Circuit, following a Hudson analysis, held that the failure to create a written search warrant, required by the federal telephonic search warrant statute, does not trigger the 4th Amendment’s exclusionary rule. The Fourth Circuit takes Hudson even further, holding that fingerprints taken following an illegal arrest are subject to suppression only if taken for an “investigative,” rather than an “administrative” purpose. See U.S. v. Oscar-Torres, 507 F.3d 224 (4th Cir. 2007). Herring v. U.S., 555 U.S. 135 (2009): Bennie Herring had driven to the Coffee County, Alabama Sheriff's Department to check on his impounded pickup truck . Mark Anderson, an investigator with the Coffee County Sheriff's Department, who had a long and contentious history with Herring, asked the department's warrant clerk to check for any outstanding warrants; the warrant clerk in the neighboring county’s Sheriff's Department was contacted, and advised there was an outstanding warrant. Although the Dale County clerk called back within 15 minutes to warn the Coffee County Sheriff's Department a clerical mistake was made (the warrant had been recalled five months prior),it was too late; Anderson had already arrested Herring and searched his vehicle, discovering firearms and methamphetamine.
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Chief Justice Roberts, writing for another 5 to 4 majority, held Herring’s arrest and the subsequent search based on the invalid warrant did not necessitate suppression of the evidence discovered as a result of this Constitutional error, 7 because the mistake was not based on a “systematic error or reckless disregard of constitutional requirements.” Citing Hudson, the Court reasoned that: “Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence, attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.” Davis v. U.S., 564 U.S. 229 (2011): In Davis, Officer Curtis Miller arrested Petitioner Willie Davis for using a false name during a routine traffic stop. Incident to arrest, Officer Miller searched the vehicle and discovered a gun Davis’s jacket. Davis was charged with being a convicted felon in possession of a firearm. Following a jury trial, Davis was convicted and sentenced to 220 months in prison. The U.S. Court of Appeals for the Eleventh Circuit found that while the search was illegal, the evidence found in the vehicle was still admissible. Davis obtained a writ of certiorari on the issue of whether the good-faith exception to the exclusionary rule applies to a search that was authorized by precedent at the time of the search but is subsequently ruled unconstitutional. 8 The Court devotes a considerable amount of time to its pre-Arizona v. Gant searchincident-to-arrest cases because Davis’s arrest pre-dated Gant. At first glance, such an approach would seem most peculiar, until one reads the language which follows. The Court follows a summary of New York v. Belton and similar automobile search-incident-to-arrest cases with a frightening description of the exclusionary rule; not as a personal, individual right, but rather as a tool only to find application when the benefit of deterring future violations of the Fourth Amendment outweigh the heavy social costs of letting the guilty go free and the dangerous to
Justice Roberts questioned whether there was a Constitutional violation, but for purposes of the decision, assumed a violation, without deciding same. 8 See Arizona v. Gant, 556 U.S. 332 (2009), where Justice Stevens, writing for what amounted to a 5 to 4 majority, held that officers are permitted to conduct a New York v. Belton-type warrantless search of the passenger compartment of a legitimately stopped vehicle only if it was reasonable to believe that the arrestee might access the vehicle at the time of the search, that the vehicle contained evidence of the offense of arrest or that the officers had, at the time, cause to believe evidence of some other crime would be found within the car’s passenger compartment. 7
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remain at large. The Court adopts this stance not withstanding its well-established precedent that the exclusionary remedy is “synonymous with violations of the Fourth Amendment.” Arizona v. Evans, 514 U.S. 1, 13 (1995) [citing Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560 (1971)]. It is important to note that an officer’s understanding of the law and court decisions undoubtedly requires officers to make subjective judgments in carrying out their duties. However, the Supreme Court has previously made clear that courts should not consider the particular officer’s “subjective intent” in determining probable cause for an arrest and/or search. See Whren v. U.S., 517 U.S. 806 (1996), and in Davis, Justice Alito, speaking for a 7 to 2 majority, holds the officers’ objectively reasonable reliance on binding appellate precedent rendered their conduct inapplicable to the exclusionary rule, noting that for exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs. Of significance is Justice Alito’s chiding response to Scalia’s suggestion that the Court has “never held that evidence is ‘fruit of the poisonous tree’ simply because `it would not have come to light but for the illegal actions of the police.'" See Hudson, 547 U.S., at 592. Alito
tersely retorts that: “We came to acknowledge the exclusionary rule for what it undoubtedly is—a ‘judicially created remedy’ of the Court’s own making…We abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits…We also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the ‘flagrancy of the police misconduct at issue.”
PROTECTING THE CITIZENRY FROM ITS PROTECTORS Despite this recent trend, the exclusionary rule remains today as the primary vehicle for enforcing compliance with the Fourth Amendment. For over a half century the Court had recognized that the prohibition against admitting illegally obtained evidence 9 not only served to deter illegal police conduct, but also maintained the “imperative of judicial integrity” by extricating courts from participation in illegal and unconstitutional police conduct. 10
See Mapp v. Ohio, 367 U.S. 643 (1961), written by Justice Tom Clark, a Texan. As succinctly expressed in Terry v. Ohio, 392 U.S. 1 (1968), “Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the Constitutional rights of citizens by permitting use of the fruits of such invasions.” 9
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The Supreme Court has repeatedly reiterated that the judiciary stands as the citizens’ only meaningful protection against our protectors. “[Fourth Amendment rights]... are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.... But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside the court.” Illinois v. Gates, 462 U.S. 213, 274-75 (1983) [Brennan, J., dissenting]. In 1984 the Court was confronted with the opportunity to closely re-examine the underpinnings of the exclusionary remedy for illegal police conduct. After all, nowhere does the exclusionary rule, or any other remedy, for that matter, appear in the text of the 4th Amendment prohibition against illegal searches. U.S. v. Leon, 468 U.S. 897 (1984): Over two decades after their landmark decision in Mapp, a majority of the Court, seemingly ignoring Mapp, Gates and their progeny, rejected the time-honored “imperative of judicial integrity” or any justification other than the “deterrence rationale” for excluding illegally obtained evidence from criminal trials, noting that “[t]he rule thus operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal right of the person aggrieved’” See U.S. v. Leon, 468 U.S. 897, 905 (1984). Over the quarter century since, the Court has found application of the exclusionary remedy inappropriate based upon a balancing test, weighing the competing interests of the often guilty accused’s Constitutional rights against society’s competing interest in protecting the safety of the public in general. 11 See INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) [refusing to apply the exclusionary rule to deportation proceedings because the deterrent effect was outweighed by the social costs
11 A seemingly no-win balancing test, to which the Court would return in a series of cases decades later. See Hudson, Herring and Davis discussed hereafter. Suffice it to say that the outcome would appear a foregone conclusion, when balancing the rights of an apparently guilty defendant (caught with incriminating contraband), against society’s interest in protecting the public from the prospect of “allowing the guilty to go free” or “the dangerous to remain at large.”
12
involved in the context of “unique immigration proceedings” that are “preventative as well as punitive”]; U.S. v. Janis, 428 U.S. 433 (1976) [noting evidence illegally seized by state officers not excluded in federal civil tax proceeding as additional deterrence deemed outweighed by social costs]; U.S. v. Calandra, 414 U.S. 338 (1974) [stating exclusionary rule not applicable to grand jury proceedings]; Stone v. Powell, 428 U.S. 465 (1976) [suppression issues are not cognizable in writs of habeas corpus, because the proceeding is so removed from the prior police illegality as to have lost its deterrent effect]. In U.S. v. Leon, a majority of the Supreme Court established the most significant exception to the “exclusionary rule,” allowing use of admittedly illegally obtained evidence where the officer acted in “objective good faith” reliance upon a warrant signed by a neutral and detached magistrate. U.S. v. Leon, 468 U.S. 897 (1984). See also Massachusetts v. Sheppard, 468 U.S. 981 (1984) [holding officer’s reliance on warrant reasonable, since it lacked particularity due to magistrate’s clerical error and magistrate said he would edit the form to include objects sought by police who relied on magistrate’s assertions] and U.S. v. Gomez, 652 F. Supp. 461 (E.D.N.Y. 1987), holding that a “reasonably well-trained officer” could not have determined that a magistrate-authorized search was illegal, under good-faith exception. As the Court in Leon acknowledges, the so-called “good faith” exception does not apply where the magistrate has been misled by the officer who obtained the warrant. See Franks v. Delaware, 438 U.S. 154 (1978) [good faith exception does not apply when determining whether officer obtained a warrant by making material misrepresentations to the magistrate in reckless disregard for the truth] or where the warrant is based upon “affidavits so lacking in evidence of probable cause as to render official belief in its existence entirely unreasonable do not fall within this exception.” See United States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994). In addition, courts do not consider the Leon “good faith” exception when deciding whether to suppress evidence preindictment, pursuant to a motion for return of seized property. Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir. 1975); Gurleski v. U.S., 405 F.2d 253 (5th Cir. 1968). The rationale for nonapplication of the “good faith” exception here, is that the court is exercising its authority to correct the misconduct of the prosecutor and his agents. Other circumstances under which the “good faith” exception does not apply include situations where the warrant is so facially deficient in particularly describing the place to be searched or the
13
things to be seized that the executing officers cannot reasonably presume it to be valid. See U.S. v. Russell, 960 F.2d 421, 423 (5th Cir.), cert. denied, 506 U.S. 953 (1992). While Leon specifically and expressly dealt with an officer’s “good faith” reliance upon a warrant lacking in probable cause (expressing a “preference for warrant practice” among law enforcement), its rationale has been extended to warrantless arrests and seizures, as well. See Davis and Herring, discussed supra. See also Illinois v. Krull, 107 S.Ct. 1160 (1987). See contra U.S. v. Winsor, 846 F.2d 1569 (9th Cir. 1988) (en banc).
SUBJECTIVE VS OBJECTIVE INTENT OF THE OFFICER The Court notes that “[t]he officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable...and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Leon, 468 U.S. at 922-23. 12 How one determines an officer’s good faith without evaluating his or her subjective intent, is a question left for another day.
COLLECTIVE BAD FAITH (WHAT IS GOOD FOR THE GOOSE) Just as courts may cumulate officers’ knowledge to determine whether probable cause existed to justify a search, officers obtaining or executing a warrant may not insulate their knowledge or good intentions from fellow officers acting in bad faith. Instead, according to the Court in Leon: “It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable cause determination. Nothing in our opinion suggests, for example, that an officer could obtain a warrant on the basis of a “bare bones’ affidavit and then rely on colleagues who are ignorant 12
In Whren v. United States, 517 U.S. 806 (1996) a unanimous Supreme Court held that courts do not look to the officer’s subjective intent in determining probable cause for a search or seizure, noting that “subjective intentions play no role in ordinary probable cause Forth Amendment analysis.”
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of the circumstances under which the warrant was obtained to conduct the search....” Leon, 468 U.S. at 923 n.24. As the Court recognized in Franks v. Delaware, 438 U.S. 154 (1978) the “...police [can]not insulate one [sic] officer’s deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity.” See also U.S. v. Cortina, 630 F.2d 1207, 1212, 1217 (7th Cir. 1980) [the good faith exception would become a “Maginot Line”, laughingly circumvented by police if courts were to insulate falsehoods in an affidavit from invalidating a warrant simply because the executing officer was unaware of the lies]; U.S. v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988) (en banc) [quoting Franks “police [can] not insulate one officer’s deliberate misstatement...”]; U.S. v. Coplon, 185 F.2d 629, 640 (2d Cir. 1950) [matters obtained through a violation of law by one official may not be introduced in evidence by the prosecution]. Furthermore, evidence which is based on information which is the product of an illegal search cannot serve as probable cause for the issuance of a search warrant entitling the executing officers to good faith reliance. U.S. v. Vasey, 834 F.2d 782 (9th Cir. 1981). Moreover, this “objective reasonableness” standard must be applied to all officers involved, not merely those who executed the warrant, but also to those who obtained or provided information to secure it. Leon, 468 U.S. at 923 n.1; see also U.S. v. DeLeon-Reyna, 898 F.2d 486 (5th Cir. 1990).
FRANKS-TYPE MISREPRESENTATIONS The Leon Court “noted” that the deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Leon, 468 U.S. at 317. “Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” Leon, 468 U.S. at 923.
MATERIAL OMMISSIONS AS MISSTATEMENTS
Furthermore, material omissions from the officer’s affidavit have been considered equivalent to misstatements. United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980). “[R]ecklessness
15
can in some circumstances be inferred directly from the omission itself.” United States v. Tomblin, 46 F. 3d 1369 (5th Cir. 1995).
MAGISTRATE MUST BE “NUETRAL AND DETACHED” The Leon Court also recognized the “good faith exception” to the exclusionary rule should not apply where the issuing magistrate wholly abandoned his role as a “neutral and detached” judicial officer. Leon, 468 U.S. at 923 citing Lo-Ji Sales Inc. v. New York, 442 U.S. 319 (1979) (magistrate utilizing prepared form warrants joined and led search); but see U.S. v. Orozco-Prader, 732 F.2d 1076, 1088 (2d Cir.), cert. denied, 469 U.S. 845 (1984) (judge was neutral and detached despite his statement at time of issuing the search warrant that government agents and U.S. Attorney “know proof and know significance ... and therefore the court has to accept their representations without question”]; U.S. v. Rome, 809 F.2d 665 (10th Cir. 1987) (the Magistrate’s failure to follow letter of Rule in issuing telephonic warrant by neglecting the requirements of (1) a verbatim record (2) a “duplicate original warrant” (3) particularity and (4) his immediate signature of the “original warrant” did not abandon detached and neutral rol); U.S. v. Breckenridge, 782 F.2d 1317 (5th Cir. 1985) (stating a neutral and detached magistrate who failed to read warrant affidavit had not abandoned his judicial role and did not spoil officer’s good faith reliance on warrant); and U.S. v. Harper, 802 F.2d 115 (5th Cir. 1986).
AFFIDAVIT TOTALLY LACKING IN PROBABLE CAUSE The Leon Court further indicated that the “good faith exception” to the exclusionary rule would not apply where the warrant affidavit was so totally lacking in probable cause as to make any reliance thereupon unreasonable. See Illinois v. Gates, 462 U.S. 213 (1983). “Nor would an officer’s manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable’.” Leon, 468 U.S. at 923.
16
See People v. Mitchell, 678 P.2d 990 (Colo. 1984) (Colorado “good faith” statute inapplicable where individual arrested and searched on strength of arrest warrant “totally devoid of factual support”). “...The warrant was void not because the facts supporting it fell somewhat below the Constitutional threshold of probable cause, but so far as the record shows, because there were no facts at all to support its issuance.” Mitchell, 678 P.2d at 2004. See also U.S. v. Cardall, 773 F.2d 1128 (10th Cir. 1985) (a warrant should not be considered to be so deficient as to defeat an officer’s “good faith” reliance upon it unless the underlying affidavit is totally devoid of factual support); Cassias v. State, 719 S.W.2d 585 (Tex. Crim. App. 1986) (Court holds that, under the “totality of the circumstances”, the “facts and circumstances presented... are too disjointed and imprecise to warrant…belief that [drugs] would be found at the described residence”).
FACIALLY DEFICIENT WARRANT The Court in Leon also recognized that reliance may be unreasonable where the warrant is “facially deficient,” such as failing to particularize the place to be searched or the things to be seized. Leon, 468 U.S. at 923.
RELIABILITY OF THE INFORMANT AND INFORMATION A mere statement by law enforcement that affiants have received reliable information from a credible source is insufficient to provide a substantial basis for determining probable cause. Illinois v. Gates, 462 U.S. 213, 239 (1983).
MISTAKE OF LAW BY POLICE IS AN EXCUSE Heien v. North Carolina, 135 S.Ct. 530 (2014): Heien involved a traffic stop stemming from the initiating police officer’s misinterpretation of a North Carolina statute involving break light requirements. The officer believed that the statute required all lights on the rear of the vehicle to be in good working order. However, North Carolina did not require all rear brake lights to function, but rather only one break light.
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The majority opinion, written by Chief Justice Roberts, held that the police officer’s objectively reasonable mistaken interpretation of an ambiguous statute would excuse any 4th Amendment violation. That ruling is interesting, because the Court finds that a reasonable mistake of law by law enforcement personnel does not violate the Fourth Amendment, while it is wellsettled that a citizen’s “ignorance of the law is no excuse.” In her dissent, Justice Sotomayor touches on the potential consequences of the majority’s opinion, noting that the exclusionary rule “is a remedial concern, and the protections offered by the Fourth Amendment are not meant to yield to accommodate remedial concerns. Our jurisprudence draws a sharp ‘analytica[l] distinct[ion]’ between the existence of a Fourth Amendment violation and the remedy for that violation.” Hein v. North Carolina, 135 S.Ct. 530, 545 (2014) (Sotomayor, J., dissenting) (citing Davis, 564 U.S. at 243-44). A concept that has come back to haunt both the Justice and those particularly concerned with the preservation of Constitutional rights and remedies. Judge Gorsuch’s prescient dissent while he was serving as a judge on the 10th Circuit Court of Appeals in United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013), abrogation recognized 630 Fed. Appx. 873, anticipated Chief Justice Robert’s 8 to 1 opinion in Heien v. North Carolina. Dissenting from a majority holding that an officer’s seizure, based upon a mistake of law, is per se a violation of the 4th Amendment, Judge Gorsuch opines: “My colleagues suggest that an investigative detention resting on an officer’s mistake of law always violates the Fourth Amendment—even when the law at issue is deeply ambiguous and the officer’s interpretation entirely reasonable. Having found a Fourth Amendment violation, they proceed to order the suppression of all evidence found during the detention and direct the dismissal of all charges. Respectfully, I have my doubts.” Nicholson, 721 F.3d at 1247 (emphasis supplied) (Gorsuch, J., dissenting).
“ATTENUATION” OF THE INITIAL ILLEGALITY Utah v. Strieff, 136 S.Ct. 27 (2015): There had been an anonymous message left on a drug tip line that narcotics activity was taking place at a residence. Id. at 536. Throughout the week, an officer monitored the home for about 3 hours total and observed what he felt was suspicious “short term traffic” at the home. Id. Based upon this information the officer concluded that the traffic indicated possible drug sales activity. During his observations, the officer did not see Strieff enter the home but saw him leave 18
the residence and walk toward a convenience store. The officer ordered Strieff to stop so that he could ask what was going on in the home. The officer asked Strieff for his identification, called his license into the police dispatcher, and discovered Strieff had an outstanding “small traffic warrant.” Id. The officer arrested Strieff based on this information and found a baggie of methamphetamine and drug paraphernalia during the search incident to arrest.
The State
acknowledged that the Terry-type stop was without probable cause or reasonable suspicion but argued the discovery of the valid outstanding traffic warrant “attenuated” the initial police illegality. On February 22, 2016, the first oral arguments were heard on the case since Justice Scalia’s passing. The government argued that the officer’s stop was a reasonable and good faith mistake and that suppression would harm society far more than deterring similar mistakes. Justice Thomas, writing for a 5 to 3 majority, held that despite the uncontested fact the officer acted purposely without reasonable suspicion in stopping Strieff, the resulting discovery of the outstanding traffic warrant, “attenuated” that illegality warranting admission of the methamphetamine, glass pipe and triple beam scale discovered by the search of his person, incident to the arrest on the outstanding warrant. Justice Sotomayor expressing her exacerbation in dissent, noted that 80% of the population in Ferguson, Missouri has outstanding traffic warrants and that in the past the Court had not hesitated to suppress evidence which constituted the fruit of police illegality. “When ‘lawless police conduct’ uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.” (Sotomayor, J., dissenting). Sotomayor caustically chides the Court’s insensitivity to the plight of those systematically subjected to such police intimidation, noting: "We must not pretend that the countless people who are routinely targeted by police are 'isolated.' They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but."
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UNAUTHORIZED DRIVER’S STANDING TO COMPLAIN OF THE SEARCH OF A RENTAL VEHICLE Byrd v. United States, 138 S.Ct. 1518 (2018) Tarrance Byrd’s fiance, Latasha Reed rented a Ford Fusion from Budget rent-a-car in her name as the only authorized driver. She walked out of the rental office and handed the rental car keys to Byrd, who as luck would have it, was a convicted felon (for weapons and drugs). Byrd had an outstanding warrant for a probation violation, and if that was not enough, Byrd had no valid driver’s license. Byrd took the keys and drove directly home, picked up a laundry bag containing 49 bricks of heroin and put the bag in the trunk of the rental vehicle. A State Trooper stopped Byrd, because he was “suspicious of Byrd for driving with his ‘hands at the 10 and 2 position’ on the steering wheel.” A search of the trunk revealed the drugs. Justice Kennedy, writing for a unanimous Court held: “[T]he mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy in that vehicle.” However, the Court remanded the case for a determination as to whether “one who intentionally uses a third party to procure a rental car by fraudulent scheme for the purpose of committing a crime is no better situated than a car thief.” As might be expected, on remand the 3rd Circuit held the search of the rental vehicle’s trunk would be justified if Ms. Reed’s fraudulent use of a straw renter deprived Byrd of standing (legitimate expectation of privacy), or if probable cause existed to conduct the search, even if Byrd had standing, or if Byrd consented to the search of the car’s trunk, remanding the case back to District Court with instruction that: “As any one of the three grounds discussed would justify the denial of Byrd’s motion to suppress if supported by a more developed record, we will remand this case to the District Court for further proceedings consistent with this opinion.”
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District of Columbia v. Wesby, 138 S.Ct. 577 (2018): In District of Columbia v. Wesby, the D.C. Metropolitan Police Department responded to a noise complaint. After hearing loud music, the police entered the home. Inside, the officers found partygoers drinking and watching “scantily clad women with money tucked into garter belts.” The individual hosting the party aptly named “Peaches” was then confronted by the police, who inquired whether she was the owner of the home. “Peaches” acknowledged that she was in the process of renting the property. The actual owner of the home was contacted and confirmed that they had not given consent or permission for the party. As a result, the police arrested the partygoers for trespassing. Ultimately, all charges were dropped and the partygoers sued for false arrest. Among the questions presented to the court was whether the officers had probable cause to arrest the party goers for unlawful entry under D.C. law, which at the time required that the arrestees knew or should have known that they entered the house against the will of the owner. The party goers claimed they were present on the premises relying in good-faith on the invitation of one who had apparent authority, a claim the D.C. District Court found to be valid. Another issue was whether the District’s law was so clearly established
thearresting officers were
precluded from immunity. Justice Thomas, writing for a unanimous Court, held that “[t]he police officers had probable cause to arrest several of the partygoers” and that the officers were entitled to qualified immunity.”
WARRANTLESS BLOOD DRAW FROM UNCONSCIOUS SUSPECT Mitchell v. Wisconsin, 139 S. Ct. 2525, 204 L. Ed. 2d 1040 (2019): Police found Mitchell walking near a beach after receiving reports he appeared intoxicated before he had gotten into a van and drove away. Police officers noted Mitchell had trouble maintaining his balance and speaking, and he admitted to drinking before driving. Officers arrested him and took him to a hospital to have his blood drawn after determining based on his physical condition it would be unsafe to perform a field sobriety test. At the hospital Mitchell was
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unconscious. Nonetheless, the officer read a form entitled “Informing the Accused” to the unconscious Mitchell and proceeded with the blood draw, pursuant to Wisconsin’s implied consent law. The Supreme Court, in a four-justice plurality opinion by Justice Alito, held that when a driver is unconscious and cannot be given a breath test, the exigent circumstances doctrine generally allows a blood test without consent or a warrant. Mitchell v. Wisconsin, 139 S. Ct. 2525, 204 L. Ed. 2d 1040, (2019). The Court made clear, however, that they were not addressing exigent circumstances involving a broad category of driving under the influence cases, only the instance of an unconscious motorist. The focus of the majority opinion was the necessity of collecting evidence before it dissipated, and the compelling public interest in deterring drunk driving. The Court’s discomfort in approving a blanket exception to the warrant requirement is obvious in its parsing and limiting language, and inclusion of counter examples that would not justifyimplementingexigent circumstance warrantless blood draws. Moreover, the Court remanded the case for further proceedings to determine if the police would have sought a BAC test first before considering a blood draw and to determine if a warrant application would have labored the police officer’s other duties. Justices Sotomayor, Ginsburg, and Kagan vigorously dissented, noting that technology is rapidly diminishing the burden and delay in procuring a search warrant, portending that the Court may revisit this limited exception to the warrant clause in the future. Justice Gorsuch dissented, criticizing the majority’s failure to address the issue of Wisconsin’s implied consent law.
DIGITAL IS DIFFERENT Riley v. California, 134 S. Ct. 2473 (2014): During a valid traffic stop, the police discovered that Riley was driving on a suspended driver’s license. Based upon “department policy,” the vehicle was impounded and an inventory search was conducted. A loaded firearm was found under the hood of Riley’s vehicle and he was arrested. Incident to arrest, Riley was searched and a cell phone (“smart phone”) was found in his pocket. The arresting officers searched the cell phone’s contents without a warrant.
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The cell phone
content searches identified videos and photos showing an affiliation with a gang (“the Bloods”) and other incriminating evidence. All of which was offered at Riley’s trail. Under the Court’s prior precedent, officers may search and seize items found on the person of an arrestee (or within his or her reach), incident to that person’s lawful arrest, including any writings, journals or other items found on their person, See Chimel v. California, 395 U.S. 752 (1969). In a surprising unanimous decision, the Chief Justice wrote for the Court holding that digital content is very different inrespect to what arresting officers may generally searchincident to a valid arrest. . For example, it is well settled arresting officers are entitled to read and review any notes, writings and/or ledgers seized from the arrestee’s person or within his or her immediate reach. However, when it comes to digital devices, such as cell phones or computers, the vast amount of personal information that may be stored on such devices warrants a different result. As the Chief Justice notes: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’...The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.” (emphasis supplied).
CELL TOWER LOCATION INFORMATION (CSLI) Carpenter v. United States, 138 S.Ct. 2206 (2018): Typically cell service providers such as AT&T, Verizon, Sprint, and T-Mobile utilize cell towers to facilitate their communication network. 13 Cell phones search for the nearest cell tower
Cell phone service providers such as AT&T, Sprint, Verizon and T-Mobile connect to their customers’ cell phones by means of a series of cell towers which pass the communications between mobile phones. As one travels from one locale to another, the smart phone communicates with the nearest cell tower, whether it is in use, or not. The cell service providers maintain this digital data reflecting this information (known as CSLI) for the primary purpose of maintaining this communication system. A corollary use of this digital data is to approximate the location of the cell phones communicating with the provider’s cell towers is utilized by both commercial entities and law enforcement agencies. 13
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to transmit and receive digital communications. 14 Generally, these cell service providers maintain this data for approximately 5-years. Retrieving or mining this digital information provides an approximate location of a cell phone at a given time. 15 Law enforcement uses this historical location information to demonstrate where a particular cell phone (and generally the subscriber/owner/user of that cell phone) was located. While investigating a string of 9 armed robberies targeting Radio Shack and T-Mobile retail stores in Michigan and Ohio between 2010 and 2011, the FBI sought and obtained this location data for suspects covering a 127-day period during the time the robberies took place. The Government obtained the digital records pursuant to a disclosure order under the Stored Communications Act of 1986, 16 rather than by securing a warrant based upon probable cause. Using that data, the FBI produced maps placing Carpenter’s phone near 4 of the charged robberies at the time they were committed. Previously the Supreme Court held that bank records actually belong to the bank, See U.S. v. Miller, 425 U.S. 435 (1976), and telephone toll records belong to the telephone service provider. See Smith v. Maryland, 425 U.S. 435 (1976). A concept that became known as the “third-party doctrine.” Writing for a 5 to 4 majority, Chief Justice Roberts first interestingly points out that “[t]here are 396 million cell phone service accounts in the United States—for a Nation of 326 million people.” Rejecting the notion that the third-party doctrine the Court applied to telephone toll records captured on the pen register in Smith v. Maryland could be applied to the sophisticated cell phone location information utilized to determine Carpenter’s location during the critical period relating to the armed robberies, the majority notes this new technology "has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers [of the US Constitution], after consulting the lessons of history, drafted the Fourth Amendment to prevent.” 14 The cell phone will search for the nearest cell tower, whether it one is communicating conversations, texts or any digital data, or not. As one travels from one point to another, one’s cell phone is constantly seeking out the nearest cell tower in order to maintain the strongest signal. 15 This location information is only approximate and will only reveal whether the particular cell phone is within that cell towers range, which is usually some 2 to 5 miles, depending on the concentration of that provider’s towers, the more towers in that area, the more accurate the location data. There are other variables as well, such as during times of heavy traffic, weather conditions and the like, a cell tower will pass on that transmission to the nearest available tower in order to continue one’s service, which would give the false impression as to the approximate location of that particular cell phone. 16 The Stored Communications Act of 1986, 18 U.S.C. §§ 2701-2712, permits law enforcement to obtain CSLI by summons, without probable cause or a warrant. Rather the statute permits a summons process without notice to the subscriber with only a showing that the governmental entity “offers specific and articulable facts showing that there are reasonable grounds to believe that the…records or other information sought, are relevant and material to an ongoing criminal investigation.’
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“[S]eismic shifts in digital technology made possible the tracking of not only Carpenter’s location but also everyone else’s, not for a short period but for years and years. Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.” Apparently relying on Alito’s concurring opinion in U.S. v. Jones, 565 U.S. 400 (2012) (regarding monitoring a GPS device), Roberts’ notes that the “[c]ourt has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements.” “In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring considered in Jones: They give the Government near perfect surveillance and allow it to travel back in time to retrace a person's whereabouts.”17 As in Riley v. California,18 the Chief Justice goes on to hold that “[b]efore compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.” (emphasis supplied). 19 Justices Kennedy, Thomas, Alito and Gorsuch each write separate and, at times caustic, dissents. Justice Thomas first bashes the majority’s reliance on the “reasonable expectation of privacy” test for what constitutes a search, and then, agreeing with Justice Kennedy’s lead dissent, goes on to suggest that under the third-party doctrine he would have held that “[b]y obtaining the cell-site records of Metro P.C.S. and Sprint, the Government did not search Carpenter’s property,” the records belonged to the provider. Justice Alito, in dissent distinguished the Stored Communications Act summons from an actual search, noting that: “The Court ignores the basic distinction between an actual search (dispatching law enforcement officers to enter private premises and root through private papers and effects) and an order merely requiring a party to look through its own records and
Nevertheless, Justice Alito dissents from the Chief Justice’s opinion. Chief Justice Roberts requotes his language from Riley v. California (the cell phone search case), noting that “[a]llowing government access to cell-site records-which ‘hold for many Americans the 'privacies of life-contravenes’” those citizens’ expectations of privacy. 19 Responding to some of the concerns expressed by the dissenters, the Chief Justice took considerable pain to point out that their opinion was not intended to “affect other parts of the third-party doctrine, such as banking records, nor does it prevent collection of cell tower data without a warrant in emergencies or for national security issues”. 17 18
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produce certain documents—must every grand jury subpoena duces tecum be supported by probable cause?” While recognizing the dilatory effect of new technology on a citizen’ reasonable expectation of privacy, Justice Alito expressed the view that on balance the cost to judicial economy and law enforcement efficiency were of paramount concern. “I share the Court’s concern about the effect of new technology on personal privacy, but I fear that today’s decision will do far more harm than good. The Court’s reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.” Justice Gorsuch’s dissent is more complex. On the one hand Gorsuch finds that Miller and Smith’s “third-party doctrine” was not consistent with the original meaning of the 4th Amendment and there is no basis, either historically or in the text of the 4th Amendment to resort to the “reasonable expectation of privacy” test relied upon by the majority. On the other hand, in what reads more like a concurrence, Gorsuch opines these cell phone location records are the “property” of the cell phone owners, and accordingly the 4th Amendment would require a warrant to obtain same. An apparent nod to Scalia’s property-trespass test espoused by Justice Thomas. On remand, the 6th Circuit affirmed, citing the officers’ good faith reliance on the Stored Communications Act of 1986 and Carpenter was sentenced to 116 years in prison. “The unconstitutionality of the Government’s search was not clear until after the Supreme Court reversed our decision....Because these agents reasonably relied on the Stored Communications Act (SCA), we AFFIRM the judgment of the district court.” In a post-Carpenter case, the Texas Court of Criminal Appeals tackled the issue of whether a person is entitled to a reasonable expectation of privacy in real-time cell site location information (CSLI) stored in a cell phone’s electronic storage. See Sims v. State, 569 S.W.3d 634 (Tex. Crim. App. 2019). Sims was charged with the murder of his grandmother, Annie Smith, after police
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officers witnessed Sims and his girlfriend purchasing items at a Walmart with the victim’s credit card and driving off in her vehicle. Officers were able to “ping” Sims’s cell phone in order to obtain his location information without a warrant by using an “Emergency Situation Disclosure” form provided by Sims’s wireless carrier. The Court of Criminal Appeals, relying on Carpenter reasoned these cases must be determined on a case-by-case basis. The CSLI data collected in Carpenter consisted of seven days of surveillance, and thus was long-term, which is distinguished from the location data collected in Sims which consisted of less than three hours of real-time CSLI. Furthermore, Sims did not have a legitimate expectation of privacy in his physical movements or location.
FROM PORCHES TO DRIVEWAYS THE “CURTILAGE” OF A HOME
Florida v. Jardines, 569 U.S. 1 (2013): Based on an uncorroborated, anonymous tip, officers of the Florida Bureau of Investigation brought their drug sniffing dog by the name of “Franky” to the front porch of Joeliss Jardines’s home in an attempt to determine if there were drugs inside the home. The dog alerted, a warrant was obtained, and the search of Jardines’s home revealed marijuana growing inside. While the issue on which certiorari was granted was whether the dog sniff constituted a search, Justice Scalia, writing for a 5 to 4 majority held the officers and their drug dog were trespassers on Mr. Jardines’s porch when they conducted the dog sniff at his front door. “When the government obtains information by physically intruding on persons, houses, papers, or effects, a ‘search’ within the original meaning of the Fourth Amendment has undoubtedly occurred.” While Scalia takes pains to note that a home is one’s castle and is “first among equals” when it comes to 4th Amendment analysis, neither the officers nor the dog ever entered Mr. Jardines’s house. The Court resolves this seeming dilemma, by noting the porch is within the
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home’s “curtilage,” and as such, is entitled to the full protection of the 4th Amendment’s warrant and probable cause requirements. “We…regard the area ‘immediately surrounding and associated with the home’— what our cases call the curtilage—as part of the home itself for Fourth Amendment purposes…That principle has ancient and durable roots.” Courts have long held that the increased protection afforded to houses by the Fourth Amendment “has never been restricted to the interior of the house”, but includes the “area immediately surrounding the dwelling”, known as the “curtilage”, as well. Wattenberg v. U.S., 388 F.2d 853, 857 (9th Cir. 1968). See also Fullbright v. U.S., 392 F.2d 434-35 (10th Cir. 1968); U.S. v. Davis, 423 F.2d 974, 977 (5th Cir. 1970); Fixel v. Wainwright, 492 F.2d 480, 483 (5th Cir. 1974); U.S. v. Whaley, 781 F.2d 417, 419–21 (5th Cir. 1986). As in U.S. v. Jones, 566 U.S. 400 (2012), the majority is divided on the reasoning employed to answer the question posed. Justice Scalia answers the question of “whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a ‘search’ within the meaning of the Fourth Amendment,” by noting the Fourth Amendment establishes a simple baseline, that “[w]hen ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a search within the original meaning of the Fourth Amendment’ has ‘undoubtedly’ occurred.” Jardines, 569 U.S. at 5 (quoting U.S. v. Jones, 565 U.S. 400, 406 n. 3 (2012)). Justice Kagan notes in her concurring opinion (joined by Justices Ginsberg and Sotomayor) that while the Court decided the case under the property rubric, in her judgment, the Court, “could just as happily have decided it by looking to Jardines’s privacy interests,” based upon Mr. Jardines’s “reasonable expectation of privacy.” Id. at 13 (Kagan, J., concurring). Justice Kagan notes police officers approached the door of Jardines’ home with a “super-sensitive instrument” which they used to detect things inside that otherwise would have remained undetected. Id. (Kagan, J., concurring). “Was this activity a trespass? Yes, as the Court holds today. Was it also an invasion of [his reasonable expectation of] privacy? Yes, that as well.” Id. (Kagan, J., concurring).
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Justice Alito begins his dissent in Jardines, much like his dissent in Jones, by describing the reasoning employed by the Court’s majority as deciding an important Fourth Amendment issue by using “a putative rule of trespass law.” Id. at 16 (Alito, J., dissenting). Justice Alito notes the custom of allowing members of the public to approach a front door extends to friends, relatives, and delivery persons, as well as solicitors and peddlers who would likely be unwelcomed. Id. (Alito, J., dissenting). As to the issue of privacy noted by the concurrence, Justice Alito explains that “[a] reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human. Id. at 1421 (Alito, J., dissenting). Nonetheless, the holding remains, “[t]he government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.” Id. at 1417–18. In an interesting case, prior to his appointment to the Supreme Court, Judge Gorsuch, then sitting on the 10th Circuit Court of Appeals took issue with his colleagues’ interpretation of the Supreme Court’s decision in Florida v. Jardines, 133 S.Ct. 1409 (2013), noting that if a resident impliedly consents to the general public approaching their front door, that resident has the ability to withdraw that implied invitation, as well. See United States v. Carloss, 818 F.3d 988 (10th Cir.), cert. denied, 137 S. Ct. 231 (2016). “[T]he homeowner is traditionally said to invite even ‘solicitors’ and ‘hawkers’ to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave… But what happens when the homeowner manifests an obvious intention to revoke the implied license to enter the curtilage and knock at the front door? When the owner literally substitutes the knocker with a No Trespassing sign, one smack in the middle of the front door? When she adds two more No Trespassing signs at the driveway's mouth to the street, one on either side of the only clear access route from the street to the front door— and along the very route any visitor would use to approach the home? And when,
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for good measure, she posts still another No Trespassing sign between the driveway and the house? So that to enter the home’s front porch, its constitutionally protected curtilage, visitors would have to disregard four separate and plainly visible warnings that their presence is wholly unwelcome? May officers still—under these circumstances—enter the curtilage to conduct an investigation without a warrant and absent an emergency?...Respectfully, I dissent.” Gorsuch goes on to emphasize the dangers inherent in the ever-increasing use of the “knock-and-talk” ruse. “Because everything happens with the homeowner’s consent…a warrant isn’t needed…No doubt for just this reason law enforcement has found the knock and talk an increasingly attractive investigative tool. But in the constant competition between constable and quarry, officers sometimes use knock and talks in ways that test the boundaries of the consent on which they depend.” Collins v. Virginia, No. 138 S.Ct. 1663 (2018): Officers pursuing a motorcycle for traffic offenses, suspected the motorcycle was stolen, but lost sight of their prey. The following day, in the same neighborhood, the officers observed a motorcycle in plain view, partially covered by a tarp in Collins’s driveway next to his garage. Suspecting this was the same motorcycle they had been chasing the day before, and relying on the automobile exception to the warrant requirement, the officers walked up Collins’s driveway and lifted the tarp. The officers called in the license number and registration of the motorcycle and confirmed it was reported stolen. Justice Sotomayor, writing for an 8 to 1 majority, and relying upon the Court’s reasoning in Jardines held the officers’ intrusion onto Collins’s driveway violated his home’s “curtilage,” and required a warrant. “In physically intruding on the curtilage of Collins’s home to search the motorcycle, Officer Rhodes not only invaded Collins’s Fourth Amendment interest in the…motorcycle, but also invaded Collins’s Fourth Amendment interest in the curtilage of his home.” Nevertheless, the Court remanded the case back to the Virginia Supreme court: “We leave for resolution on remand whether Officer Rhodes’ warrantless intrusion on the curtilage…may have been reasonable on a different basis, such as the excigent circumstances exception to the warrant requirement.” 30
On remand, the Virginia Supreme Court held that: “In our opinion, the exclusionary rule does not apply in this case even if no exigent circumstances existed because, at the time of the search, a reasonably well-trained officer would not have known that a search of the motorcycle, located a few feet across the curtilage boundary of a private driveway was unconstitutional.” Moreover, in a troubling reference to the requirement in Hudson, Herring and Davis’ the officers’ conduct must be shown to be “deliberate,” “culpable,” and “flagrant,”to invoke the exclusionary rule.The Virginia Supreme Court goes on to note that: “We begin with a settled but often overlooked premise. Standing alone, ‘[t]he fact that a Fourth Amendment violation occurred…does not necessarily mean that the exclusionary rule applies…The Fourth Amendment prohibits unreasonable searches and seizures but “says nothing about suppressing evidence obtained in violation of this command.”
TRACKING WITH A GLOBAL POSITIONING SYSTEM (GPS) U.S. v. Jones, 565 U.S. 400 (2012): In Jones the Court determined whether the attachment of a Global Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.
Believing Jones was involved in narcotics trafficking, the District of
Columbia police obtained a warrant to install and monitor a GPS device on the undercarriage of Jones’ pickup truck. However, their monitoring exceeded both the geographical and time limits of that warrant. Accordingly, the Supreme Court treated both the installation and monitoring of the device as warrantless. While the decision was unanimous, the rationale for same was divided 5 to 4. Scalia, writing for the 5-Justice majority, held that the “attaching” of the GPS device constituted a search, requiring a warrant, reasoning the installation constituted a physical trespass on one of the 4th Amendment’s expressly protected areas, namely “persons, houses, papers and effects.” “At bottom, we must ‘assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted…As explained, for most of our 31
history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas it enumerates.” Scalia, J. Scalia’s majority opinion does not address the issue of monitoring, noting that "It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.” Alito, concurring, reaches the same conclusion with regard to attaching of the device, relying upon the “reasonable expectation of privacy” standard, noting that: “[T]he search of one’s home or office no longer requires physical entry, for science has brought forth far more effective devices for the invasion of a person’s privacy than the direct and obvious methods of oppression which were detested by our forebears and which inspired the Fourth Amendment.” However, Scalia goes a step further to find that under the expectation of privacy test, the lengthy monitoring presented in this case, constituted an invasion of Jones’ expectation of privacy, requiring a warrant. “I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove…I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment.” Alito, J. Sotomayor writes separately opining that even cases involving “short-term” monitoring may violate one’s reasonable expectation of privacy. That would make 5 votes for the proposition that any monitoring would constitute a search, requiring a warrant. Given that almost every person and vehicle now come equipped with a GPS device (already furnished with their cellphones, digital devices or their “intelligent” vehicles), five Justices held that the continued warrantless monitoring of that device was an illegal “search.” In March of 2013, the First Circuit examined a case in which FBI agents attached a GPS tracking device to the vehicle of a suspected bank robber. U.S. v. Sparks, 711 F.3d 58 (1st Cir.
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2013). Although the ruling in Jones controls the case, the First Circuit concluded the good-faith exception “applied in cases like this one (or Davis itself), where new developments in the law have upended the settled rules on which the police relied.” Id. at 68. The court noted that the officer’s actions had been guided by binding precedent in that circuit. Id. at 67.
OVER BREADTH AND GENERAL SEARCHES Courts have not hesitated to find that a warrant lacking in particularity will not pass Constitutional muster. “Th[e] particularity requirement serves three related purposes: preventing general searches, preventing the seizure of objects upon the mistaken assumption that they fall within the magistrate’s authorization, and preventing the issuance of warrants without a substantial factual basis.” U.S. v. Young, 745 F.2d 733 (2d Cir. 1984), cert. denied, 470 U.S. 1084 (1985). In U.S. v. LeBron, 729 F.2d 533, 536-39 (8th Cir. 1984), the Eighth Circuit held that a warrant for “other stolen property” or “any records which would document illegal transactions involving stolen property” lacks the requisite particularity: “A valid warrant should describe the things to be taken and the place to be searched with particularity such that it provides a guide to the exercise of informed discretion of the officer executing the warrant.... We recognize that, despite the dangers, a warrant may issue to search and seize records if there is probable cause to believe that records which are evidence or instrumentality of a crime will be there and the description is stated with sufficient particularity....The warrant in the instant case, without more, authorized a search for ‘any records which would document illegal transactions involving stolen property’. There is no attempt to particularize the description of the property or of the records themselves. The only limiting factor is the reference to ‘stolen property’. As earlier discussed, this generic classification is not sufficient to provide any guidance to an executing officer. Absent as well is any explanation of the method by which the officers were to distinguish such records from any documents relating to legal transactions.” LeBron, 729 F.2d at 536, 538-39. See also U.S. v. Guarino, 729 F.2d 864 (1st Cir. 1984) [striking down a warrant authorizing seizure of “obscene” films “of the same tenor” as certain enumerated items]; U.S. v. Spilotro, 800 F.2d 959 (9th Cir. 1986) [items relating to loan sharking and bookmaking not described with sufficient particularity]; U.S. v. LeBron, 729 F.2d 533, 539 (8th Cir. 1984) [a search for any records that
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would show transactions in stolen property was too generic a classification and thus constituted an impermissible general search]. Contra U.S. v. Gomez, 652 F. Supp. 461 (E.D.N.Y. 1987) [similar case with opposite result]; U.S. v. Burke, 718 F. Supp. 1130 (S.D.N.Y. 1989); U.S. v. Buck, 813 F.2d 588 (2d Cir. 1987), cert. denied, 484 U.S. 857 (1987) [even though warrant lacked sufficient particularity, same was not so apparent that executing officers could not rely on the warrant, especially in light of fact that officers searching in 1981 could not reasonably have anticipated developments in the law]; U.S. v. Villegas, 899 F.2d 1324 (2d Cir. 1990) [“sneak peek” warrant authorizing covert entry to take pictures was held constitutional]. A search warrant which utterly fails to describe the persons or things to be seized has been held to be per se invalid, even if the particularized description is provided in search warrant application. Groh v. Martinez, 540 U.S. 551 (2004).
NEXUS BETWEEN PROBABLE CAUSE AND THE PLACE TO BE SEARCHED There must be sufficient “nexus” between probable cause to believe that the contraband will be located at the place to be searched. “For a probable cause determination to be meaningful there must be a nexus among (1) criminal activity, (2) the things to be seized, and (3) the place to be searched.” W. LaFavre Search and Seizure, 33.7(d) (1978). See also Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 358 (1974); U.S. v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982); U.S. Maestas, 546 F.2d 1177, 1189 (5th Cir. 1977). It also should be clear that an arrest at one location does not give sufficient particularized probable cause to believe evidence of that crime will be located at some distant location, even if same constitutes the arrestee’s residence. U.S. v. Gramlich, 551 F.2d 1359 (5th Cir. 1977) [“This fact alone is insufficient to justify the inference that incriminating evidence existed at that residence”]. This is because warrants are directed against evidence of crime and not against persons. Thus, “[t]he fact that there is probable cause to arrest a person for a crime does not automatically give police probable cause to search his residence or other area in which he has been observed for evidence of that crime.” U.S. v. Savoca, 739 F.2d 220, 224 (6th Cir. 1984). “The affidavit in Gramlich stated that the defendant had been observed over a period of several weeks. During that time, he purchased a van, motorboat and radio equipment under an assumed name. The defendant was also known to possess a
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23-foot motorboat named “Pronto” which, according to the affidavit had been docked at the pier outside of the defendant’s residence. Gramlich, 551 F.2d at 1362 n.7. The affidavit went on to relate that on several occasions the defendant had been observed piloting “Pronto” out into the Gulf of Mexico in order to rendezvous with other boats. Based upon the surveillance described, in addition to the arrest of the defendant fifty miles away while he was unloading marijuana from a motorboat, the magistrate granted a search warrant for the defendant’s house. The Fifth Circuit suppressed the evidence obtained as a result of that search because the information in the affidavit failed to establish an adequate connection between the residence searched and the alleged drug smuggling activities.” U.S. v. Gramlich, 551 F.2d 1359 (5th Cir. 1977). Likewise, reliable information that a known felon has committed a burglary and was arrested with some of the proceeds some distance from his home, will not authorize a search of his residence. U.S. v. Flanagan, 423 F.2d 745 (5th Cir. 1970); see also U.S. v. Bailey, 458 F.2d 408 (9th Cir. 1972); U.S. v. Whitlow, 339 F.2d 975 (7th Cir. 1964); Gillespie v. U.S., 368 F.2d 1 (8th Cir. 1966). “The statement (in an affidavit), even if reliable, that a named person who is a known felon has committed a burglary, plus possession by the suspect of some of the proceeds when arrested, does not without more authorize the issuance of a warrant to search the residence of the accused miles away.” Flannagan, 423 F.2d at 747. In U.S. v. Green, 634 F.2d 1222 (5th Cir. 1981), the Fifth Circuit noted that while a “careful review of the affidavit reveals ample evidence from which the magistrate could conclude that (the defendant) was engaged in criminal activity in California,” . . . “no evidence, other than residence, was set forth in the affidavit that connected the Key West, Florida, home to the criminal activity.... The motion to suppress should have been granted.” Green, 634 F.2d at 1225-26. Similarly, in U.S. v. Lockett, 674 F.2d 843 (11th Cir. 1982) the only statement evidencing a nexus between explosives and the residence to be searched, in an affidavit reciting numerous other events and activities of George Lockett, read: “On July 11, 1980, this affiant observed these premises from the public county road and I saw no structures which would indicate proper storage facilities on the premises for storing high explosives. Record, Vol. 1 at 16. There follows a hand
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written statement by the affiant to the effect that he believes that dynamite is on the premises.” Lockett, 674 F.2d at 845. In the Eleventh Circuit’s view, “such a conclusory statement, without more, of course has no probative value.” As a result, the Lockett Court concluded the affidavit set forth no facts from which the magistrate could infer that dynamite was located at that particular place”. Lockett, 674 F.2d at 846. See U.S. v. Algie, 721 F.2d 1039, 1042 (6th Cir. 1983) [fifteen phone calls from an apartment “which authorities knew to be used for gambling coupled with an affiant’s belief that telephones are often used to make lay-off bets”, is “insufficient to convince a reasonably prudent person that contraband or evidence of a crime would be found on the premises”].
Another court, however, has applied the good faith exception despite any lack of nexus between the house to be searched and the evidence seized. U.S. v. Hendricks, 743 F.2d 653 (9th Cir. 1984). “Federal agents were in possession of a cocaine-bearing package from Brazil, which they anticipated would be picked up by the individual to whom it was addressed, ...the warrant stated that the package ‘is now being concealed’ at defendant’s residence and added’ the search warrant is to be executed only upon the condition that the above described box is brought to the aforesaid premises’.” The Court concluded the warrant lacked probable cause and explained the magistrate abdicated to the agents “an important judicial function—the determination that probable cause exists to believe that the objects are currently in the place to be searched”. Nevertheless, the court determined the agents acted in “reasonable reliance on the warrant and hence declines to order suppression of the fruits of the search”. Hendricks, 743 F.2d at 655; see also U.S. v. Gant, 759 F.2d 484 (5th Cir. 1985); Commonwealth v. Way, 492 A.2d 1151 (Pa. Super. 1985) [holding lack of substantial nexus between the street crime and the premises to be searched renders the warrant facially invalid]; U.S. v. Marriott, 638 F. Supp. 333 (N.D. Ill. 1986). But see U.S. v. Asselin, 775 F.2d 445 (1st Cir. 1985)
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[officers were found to have acted in “good faith” interpreting the word “premises” to include surroundings so as to authorize two searches of a disabled car adjacent to the carport and a birdhouse hanging from tree fifteen feet from trailer steps]; U.S. v. Kenney, 595 F. Supp. 1453 (D.C. Ma. 1984) [“probable cause existed to search safety deposit box for cash “because officers had probable cause to believe defendant was engaged in trafficking”, but there existed no nexus between the gold, silver and jewelry found in the box and suspected drug trafficking].
PROSECUTION SHOULD BEAR THE BURDEN OF DEMONSTRATING “GOOD FAITH” The Supreme Court in Leon appeared to place the burden on the prosecution “to establish objective good faith”. “The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. As we have already suggested, the goodfaith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecutions should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time.” Leon, 468 U.S. at 924. See also U.S. v. Gant, 587 F.Supp. 128 (S.D. Tex. 1984), rev’d on other grounds 759 F.2d 484 (5th Cir. 1985), cert. denied, 474 U.S. 851 (1985) [allocating burden of proof upon the Government, “which if proved by the government, would save the evidence from the effects of the exclusionary rule”]; U.S. v. Hendricks, 743 F.2d 653, 656 (9th Cir. 1984)[“The standard to be employed [in determining the officers’ good faith reliance] is an objective one and the prosecution bears the burden of proof’].
“GOOD FAITH” RELIANCE ON SUMMONS The good faith exception also applies in other areas where law enforcement officers are acting in reliance on the issuance of process by a grand jury or prosecutor on its behalf. U.S. v. Gluck,
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771 F.2d 750 (3d Cir. 1985) [“good faith” exception applies to IRS summons based on facially valid grand jury disclosure order unauthorized under U.S. v. Baggot, 771 F.2d 750, 103 3164, 77 L.Ed.2d 785 (1983)].
“GOOD FAITH” EXCEPTION APPLIES TO WARRANTLESS ADMINISTRATIVE SEARCHES AUTHORIZED BY STATUTE LATER FOUND UNCONSTITUTIONAL Illinois v. Krull, 480 U.S. 340 (1987): The Supreme Court extended the good faith exception to a warrantless administrative search conducted in objectively reasonable reliance on a statute later held unconstitutional. Illinois v. Krull, 480 U.S. 340 (1987). However, constraints similar to those set forth in Leon apply. “A statute cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws. Nor can a law enforcement officer be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional.... [T]he standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers.” Krull, 480 U.S. at 355 [citing Leon, 468 U.S. at 919 n.10]. The Court also recognized the risks involved in its holding. “It is possible, perhaps, that there are some legislators who, for political purposes, are possessed with a zeal to enact a particular unconstitutionally restrictive statute, and who will not be deterred by the fact that a court might later declare the law unconstitutional. ...[W]e are not willing to assume...legislators ... perform their legislative duties with indifference to the constitutionality of the statutes they enact. If future empirical evidence ever should undermine that assumption, our conclusions may be revised accordingly. Krull, 480 U.S. at 352 n.8 [citing Leon, 468 U.S. at 927-28]. Justice O’Conner, writing for the 4 dissenting justices, noted that: “Providing legislatures a grace period during which the police may freely perform unreasonable searches in order to convict those who might have otherwise escaped creates a positive incentive to promulgate unconstitutional laws. . . . [i]t cannot be said that there is no reason to fear that a particular legislature might yield to the temptation offered by the Court’s good faith exception.” Krull, 480 U.S. at 352 [O’Connor, J., dissenting].
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OTHER WARRANTLESS SEARCHES Brown v. Polk County, Wisconsin, 141 S. Ct. 1304 (2021) Although the Supreme Court denied certiorari, Justice Sotomayor provided a statement. In this case, the defendant contested an invasive search of her body during pre-trial detention. In this search, the petitioner was examined by a doctor who used a speculum to spread open her vagina and shine a light inside to search for contraband; the same was done to her rectum. The 7th Circuit found mere reasonable suspicion justified this search—the same degree used for Terry stops. Petitioner argues the extreme invasiveness of these procedures should require probable cause and a warrant or exigent circumstances. Justice Sotomayor emphasizes “the degree of suspicion required for a search should be substantially informed by the availability of less intrusive alternatives.” Justice Sotomayor chastises the 7th Circuit for failing to consider whether other alternatives were available before holding reasonable suspicion alone was sufficient justification to perform “this degrading search” on a person who had not even been convicted of any crime. Petitioner was arrested for shoplifting and during her second day in jail, two inmates reported petitioner was hiding drugs in her body. Based on the inmates word alone, petitioner was taken to the hospital and although an ultrasound found no foreign objects the doctor proceeded to perform the visual inspections of her vagina and anus. Jail personnel indicated these searched were ordered whenever someone made such an accusation without any consideration of the source’s reputation for honesty, or any other investigation of the accusation. Justice Sotomayor expressly states the 7th Circuit’s failure to consider something less intrusive that would still meet the interest of ensuring jail security was error. There were a myriad of less invasive alternatives and the method used should be the least intrusive means
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reasonably available to verify or dispel the officer’s suspicion. Florida v. Royer, 460 U.S. 491, 500 (1983). City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015): The Los Angeles Municipal Code (LAMC) required hotel and motel operators to keep records with detailed information about their guests. The LMAC also authorized police officers to inspect these records at any time without requiring a search warrant. The Patels, who owned and operated a hotel in Los Angeles, filed a petition, arguing the LMAC violated their Fourth Amendment protection against unreasonable seizures.
Justice Sotomayor delivered the 5-4
majority opinion and held that an individual may challenge a statute for violating the Constitution on its face without needing to allege unconstitutional enforcement, and that the municipal ordinance in question is unconstitutional on its face because it does not allow for hotel operators to engage in pre-compliance review by questioning the reasonableness of the subpoena in district court. The Court also held that hotels are not a “closely regulated” business and therefore do not fall under that exception to the warrant requirement. Justice Scalia wrote a dissent, arguing the ordinance is constitutional because it is not unreasonable under the circumstances. Rodriguez v. United States, 135 S. Ct. 1609 (2015): Rodriguez was pulled over for a minor traffic violation for which he received a warning. After giving the warning, the officer asked permission to walk his K-9 unit around Rodriguez’s vehicle, which he refused. The officer ordered Rodriguez to exit the vehicle and walked the K-9 around his car and the dog alerted. A search revealed a large bag of methamphetamine. Rodriguez argued the K-9 search violated his Fourth Amendment rights. The Court held the use of a K-9 unit after completion of an otherwise lawful traffic stop exceeded the time reasonably required to handle the matter and therefore unreasonable under the Fourth Amendment. The Court clarified
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that a seizure unrelated to the reason for the stop is lawful only if it doesn’t measurably extend the stop’s duration. Akinmboni v. United States, 126 A.3d 694 (D.C. Ct. App. 2015): In Akinmbomi, The court held the warrantless search and removal of items from an individual’s body cavity violates the Fourth Amendment.
Akinmboni v. United States, 126 A.3d
694, (2015). Here, the defendant was pulled over for a broken taillight. The officer smelled burnt marijuana when approaching the defendant’s car and noticed the defendant placed an item in his mouth and began chewing. Id. at 695. Unable to retrieve that item. the officer conducted a search of the vehicle, found marijuana, and arrested the defendant. At the stationhouse, the officer conducting a pat down search of defendant felt a foreign object. They asked the defendant to remove all of his clothing and to permit visual inspection of his anal cavity. Id. at 696. Upon inspection, officers found three separate baggies containing marijuana, pills of assorted colors, crack, and cocaine. Defense counsel subsequently filed a motion to suppress the evidence under the Fourth Amendment, arguing that officers lacked a warrant and a doctor should have been involved. Id. The trial court denied the motion, and after a jury trial, Akinmboni was convicted of possession of controlled substances. Appeal followed. On appeal, it is uncontested that the officer directive to the defendant to remove the items from his anal cavity constituted a Fourth Amendment search and seizure Determining whether a search or seizure was conducted in a reasonable manner requires a balancing of the needs of the government against the invasiveness of the intrusion and its impact on the suspect. Bell v. Wolfish, 441 U.S. 520, 559 (1979). In assessing reasonableness, courts “must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id.; see also, e.g., Washington v. United States, 594 A.2d 1050,
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1052 (D.C. 1991). Where a search or seizure involves the removal of items from sensitive body cavities, including anal or vaginal cavities, the reasonableness of the methods used may depend upon “a variety of factors including hygiene, medical training, emotional and physical trauma, and the availability of alternative methods for conducting the search.” United States v. Fowlkes, 804 F.3d 954, 963 (9th Cir. 2015). It was argued that the officer acted in accordance with official policy, and therefore the search was constitutional. Id. However, the fact a search was conducted in accordance with an applicable policy does not by itself establish that the search was reasonable. See, e.g., Way v. County of Ventura, 445 F.3d 1157, 1160–62 (9th Cir.2006). Therefore, the court found that even though officers complied with their established policy, the removal of the items was substantially more intrusive than a search that entails only visual inspection.
DIGITAL SEARCHES In U.S. v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), the 10th Circuit was confronted with the practice of 3rd party providers (in this case AOL) scanning all outgoing e-mails with an “automated filter” 20 for known images of child pornography, upon receiving a “positive hit,” sending that e-mail, together with any attachments to the National Center for Missing and Exploited Children (NCMEC), a private entity, who in turn open the e-mail and, if finding evidence of child pornography, refers same to criminal investigators. As for whether the opening of the e-mail by NCMEC, a private entity, constitutes “state action” for 4th Amendment analysis, Judge Gorsuch makes short shrift, holding that NCMEC is
20 Utilizing an algorithm that produces a hash value, some consider a “digital fingerprint.” See
Richard P. Salgado, Fourth Amendment Search and the Power of the Hash, 119 Harv. L. Rev. F. 38, 38-40 (2005). 42
the Government for 4th Amendment purposes, and even if it isn’t, it is an agent of the Government under these circumstances. “[NCMEC is an] organization that was statutorily obliged to operate as official national clearinghouse for information about missing and exploited children [and thus] was a government entity for purpose of determining whether its search of defendant’s e-mail violated [the] Fourth Amendment.” Ackerman, 831 F.3d at 1292. With regard to whether the opening of that e-mail constituted a “search” for 4th Amendment purposes, Judge Gorsuch again has no problem reaching that conclusion in simple, concise and piercing terms: “We are dealing…with the warrantless opening and examination of (presumptively) private correspondence that could have contained much besides potential contraband for all anyone knew. And that seems pretty clearly to qualify as exactly the type of trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment.” “Of course, the framers were concerned with the protection of physical rather than virtual correspondence. But a more obvious analogy from principle to new technology is hard to imagine.” Moreover, Judge Gorsuch cuts to the quick of the long-standing dispute between whether we analyze the search issue in terms of Scalia’s property-trespass approach or in terms of Alito’s reasonable expectation of privacy analysis. 21 Without taking sides, Gorsuch describes the opening of Ackerman’s e-mail intuitively as a “trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment,” noting: “So it seems that, whether we analyze the search question through the lens of the government’s preferred authority— Katz —or through the lens of the traditional trespass test suggested by Jones, they yield the same (and pretty intuitive) result: NCMEC conducted a ‘search’ when it opened and examined Mr. Ackerman’s email.”
USE OF SOPHISTICATED TECHNOLOGY In U.S. v. Denson, 775 F.3d 1214 (10th Cir. 2014) Gorsuch was confronted with the use of a small hand-held “Doppler radar device” capable of detecting the presence of individuals inside 21 See Comparison between Scalia’s lead opinion and Alito’s concurrence in U.S. v. Jones, 565
U.S. 400 (2012)
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a residence. Taking his lead from the Supreme Court’s thermal imaging case 22, the new Justice had no difficulty determining that using such a “powerful tool to search inside homes poses grave Fourth Amendment questions.” Denson, 775 F.3d at 1218. “The government brought with it a Doppler radar device capable of detecting from outside the home the presence of ‘human breathing and movement within.’…. New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights. See, e.g., Kyllo v. United States, 533 U.S. 27, 33–35 (2001) (holding that using warrantless thermal imaging to show activity inside a home violated the Fourth Amendment). Unlawful searches can give rise not only to civil claims but may require the suppression of evidence in criminal proceedings. 23 We have little doubt that the radar device deployed here will soon generate many questions for this court and others along both of these axes.” Id. Nevertheless, Gorsuch, applying the “independent source rule,” easily affirms Denson’s conviction, noting that “all of the facts we’ve outlined above were discovered independently of the potentially problematic radar search—a fact that requires us to defer those questions to another day.” Id. at 1218-19.
“GOOD FAITH” MUST BE OBJECTIVE The standard for applying the “good faith” exception to the exclusionary rule is an objective, not subjective one. “Many objections to a good-faith exception assume that the exception will turn on the subjective good faith of individual officers. ‘Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth 22 See Kyllo v. United States, 533 U.S. 27, 33–35 (2001) [use of a “thermal imaging” device].
However, Scalia’s 5 to 4 opinion rests on the finding that such technology was “not readily available,” a scary concept, not mentioned in Gorsuch’s holding that the use of a Doplar radar device constituted a search. 23 Gorsuch’s statement that “unlawful searches…may require suppression of evidence in criminal proceedings,” would appear to be a subtle recognition of the Supreme Court’s recent insistence that evidence obtained through the violation of an individual’s constitutionally protected right to privacy is not necessarily subject to the exclusionary remedy. Compare Hudson v. Michigan, 547 U.S. 586 (2006) with Davis v. U.S., 546 229 (2011) and see discussion regarding erosion of the exclusionary rule hereafter. 44
Amendment.’ The objective standard we adopt, moreover, requires officers to have a reasonable knowledge of what the law prohibits.” U.S. v. Leon, 468 U.S. 897, 919 n. 20 (1984) (internal citations omitted). As Professor Jerold Israel has observed: “The key to the [exclusionary] rule’s effectiveness as a deterrent lies, I believe, in the impetus it has provided to police training programs that make officers aware of the limits imposed by the Fourth Amendment and emphasize the need to operate within those limits. [An objective good-faith exception]...is not likely to result in the elimination of such programs, which are now viewed as an important aspect of police professionalism. Neither is it likely to alter the tenor of those programs; the possibility that illegally obtained evidence may be admitted in borderline cases is unlikely to encourage police instructors to pay less attention to Fourth Amendment limitations. Finally, [it] ...should not encourage officers to pay less attention to what they are taught, as the requirement that the officer act in ‘good faith’ is inconsistent with closing one’s mind to the possibility of illegality.” Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 Mich. L.Rev. 1319, 1414 n. 396 (1977). Whether the officer acted in good faith is a question of law which receives an independent review in the courts of appeal. For example, the Supreme Court found that a mistake in the execution of a warrant might, under the circumstances of the case, warrant application of the “good faith” exception. However, the exception will not apply if officers are negligent in execution of a warrant and their mistake is unreasonable. In Maryland v. Garrison, the Court found the objective good faith standard was met where officers made a mistake conducting a search where the warrant did not authorize. The officers obtained a warrant for an apartment on the third floor of a building, but mistakenly thought the apartment named in the warrant covered the entire floor. The court held that the officers made a “good faith” mistake in searching the wrong apartment. Maryland v. Garrison, 480 U.S. 79 (1987). But see U.S. v. Palacios, 666 F. Supp. 113 (S.D. Tex. 1987) [stating evidence is not admissible under good faith exception when arrest warrant is negligently executed thereby arresting wrong person; mistake was not reasonable].
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While the Supreme Court has voiced concern over the “substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights” it leaves no question as to the rule’s continued viability. U.S. v. Leon, 468 U.S. 897, 907 (1984). “The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern....” “...Nevertheless, the balancing approach that has evolved in various contexts—including criminal trials—forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment.” U.S. v. Leon, 468 U.S. 897, 907 (1984). Despite the Court’s concern, a study regarding the practical effect of the “good faith” exception on warrants indicates no increase in their quality and quantity. Rather, some studies suggest that the effect of the Leon decision has been to encourage prosecuting authorities to seek warrants in situations where previously they would not. Police Executive Research Forum, The Effects of United States v. Leon on Police Search Warrant Policies and Practice (1988). Texas’ Statutory equivalent to the Federal Exclusionary Rule also provides for a good faith exception. Tex. Code Crim. P. art. 38.23(b) (Vernon 1989). [where a defective warrant has been issued by a magistrate and the warrant was based on probable cause, if the executing officer believes in good faith the warrant is valid, the evidence is nevertheless admissible].
“UNREASONABLE DELAY” BEFORE PRESENTMENT AS GROUNDS FOR SUPPRESSION OF CONFESSION Corley v. United States, 556 U.S. 303 (2009) A divided Court held in Corley v. United States, 556 U.S. 303 (2009), that 18 U.S.C. § 3501 did not overrule the Court’s line of cases following McNabb v. United States, 318 U.S. 332 (1943) superseded by statute 556 U.S. 303, and Mallory v. United States, 354 U.S. 449 (1957) superseded by statute 354 U.S. 449.
In his opinion for the Court, Justice Stevens considered rationale of 46
McNabb-Mallory and the legislative history of § 3501 to conclude that Congress only intended to limit McNabb-Mallory and not to eliminate it. Corley, 556 U.S. at 306. Stevens went on to state that “Justice Frankfurter’s point in McNabb is as fresh as ever: ‘The history of liberty has largely been the history of observance of procedural safeguards.’” Id. at 321 (citing McNabb). The result of Corley, however, is not that a confession obtained prior to presentment is automatically suppressed, but rather “… a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was ‘reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]’). If the confession came within that period, it is admissible, subject to other Rules of Evidence, so long as it was “made voluntarily and … the weight to be given to [it] is left to the jury.” If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed. Corley at 322.
STATES ARE FREE TO PROVIDE GREATER PROTECTIONS TO THEIR CITIZENS Lego v. Twomey, 404 U.S. 477 (1972). Since United States Constitution sets a floor below which our constitutional rights cannot fall and the states set the ceiling, states are free to provide greater protections than afforded citizens under the federal system. Lego v. Twomey, 404 U.S. 477 (1972); Oregon v. Hass, 420 U.S. 714 (1975); Texas v. White, 423 U.S. 67 (1975); Michigan v. Mosley, 423 U.S. 96 (1975). “[I]t is appropriate to observe that no state is precluded from adhering to higher standards under state law. Each state has the power to impose higher standards governing police practices under the state law than is required by the federal constitution.” Mosley, 423 U.S. at 120.
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For example, Pennsylvania has rejected the Leon good faith exception to the exclusionary rule. See Com. v. Edmunds, 586 A.2d 887 (Pa. 1991) [finding that the exclusionary rule also protects the individual’s right to privacy the Court rejected the Leon good faith exception]; State v. Santiago, 492 P.2d 657 (Haw. 1971) [rejecting Harris v. New York, 401 U.S. 222 (1971)]; State v. Johnson, 346 A.2d 66 (N.J. 1975) [rejecting waiver of constitutional right approach of Schneckloth v. Bustamonte, 412 U.S. 218 (1975)]; Blue v. State, 558 P.2d 636 (Alaska 1977) [rejecting Kirby v. Illinois, 406 U.S. 682 (1972) [interpretation of right to counsel at pre-indictment lineups)]; State v. Kaluna, 520 P.2d 51 (Haw. 1974) [rejecting Supreme Court’s interpretation of right to search incident to an arrest in U.S. v. Robinson, 414 U.S. 218 (1973) and Gustafson v. Florida, 414 U.S. 260 (1973)]; State v. Jackson, 688 P.2d 136 (Wash. 1984) [rejecting the Gates “totality” test]; State v. Sidebotham, 474 A.2d 1377 (N.H. 1984) [Jones-type automatic standing held still available in New Hampshire]; State v. Bolt, 689 P.2d 519 (Ariz. 1984) [refusing to allow securing premises for purposes of obtaining warrant as per Segura]; Sanchez v. State, 707 S.W.2d 575 (Tex. Crim. App. 1986) [noting independent state constitution restricts use of even uncounseled silence]; State v. Jewitt, 500 A.2d 233 (Vt. 1985); State v. Young, 867 P.2d 593 (Wash. 1994). “Since 1970 there have been over 250 cases in which state appellate courts have viewed the scope of rights under state constitutions as broader than those secured by the federal Constitution as interpreted by the United States Supreme Court.... ‘A lawyer today…who does not argue that the state constitution provides…protection is skating on the edge of malpractice’…. [T]he philosophy of the U.S. Supreme Court may ebb and flow…. The development of state constitutional jurisprudence will call for the exercise of great judicial responsibility as well as diligence from the trial bar. It would be a serious mistake for this court to use its state constitution chiefly to evade the impact of the decisions of the U.S. Supreme Court. Our decisions must be principled, not result oriented.” State v. Jewett, 500 A.2d 233, 222-24 (Vt. 1985). The Supreme Court dismissed as improvidently granted a writ of certiorari on the ground that the court below had rested its suppression decision “on independent and adequate state grounds”.
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This was in spite of the fact that the Court had decided the same issue on the same day differently in a Federal case where the decision below rested solely on Federal Constitution standards, reaffirming that States are free to prescribe greater protections for their citizenry. Florida v. Casal, 462 U.S. 637 (1983). Even in Gates, the Supreme Court recognized that a different rule would attach if it were considering actions of state officials under state statutes: “‘Due regard for the appropriate relationship of this Court to state courts,’ demands that those courts be given an opportunity to consider the constitutionality of the actions of state officials...we permit a state court, even if it agrees with the state as a matter of federal law, to rest its decision on an adequate and independent state ground.” Gates, 462 U.S. at 221-22. In California v. Ramos, the Supreme Court, speaking through Justice O’Connor, reiterated that: “It is elementary that States are free to provide greater protections in their criminal justice system than the Federal Constitution requires.” California v. Ramos, 463 U.S. 992 (1983). Again, as set out above, Texas has a statutory exclusionary rule, Tex. R. Cr. P. 38.23. However, note that the Texas Court of Criminal Appeals, in an en banc opinion, held that the Texas Constitution contains no requirement that a seizure or search be authorized by a warrant, and any seizure or search that is otherwise reasonable will not be found to be in violation of Texas Constitution because it was not authorized by a warrant. Hulit v. State, 982 S.W.2d 431 (Tex. Crim. App. 1998). Additionally, the court added that it had “expressly conclude[d] that this court, when analyzing and interpreting article I, section 9 of the Texas Constitution, will not be bound by Supreme Court decisions addressing the comparable Fourth Amendment issue,” quoting Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991); see also Polk v. State, 704 S.W.2d 929, 934 (Tex. Crim. App. 1986); Oliver v. State, 711 S.W.2d 442, 445 (Tex. App.—Fort Worth, 1986) [the independent 49
source and inevitable discovery exceptions to the judicially created exclusionary rule do not apply to article 38.23 and will not, short of an amendment]; Com. v. Upton, 476 N.E.2d 548 (1985) [twopronged Aguilar-Spinelli test retained for state law purposes instead of the Gates totality of the circumstances standard. Court noted that the Aguilar standard had been working well for twenty years, encouraged careful police work and tended to reduce the number of unreasonable searches]; State v. Jackson, 688 P.2d 136 (Wash. 1984).
It should be noted, however, that even if a state
provides protections greater than those required by the Constitution, it does not necessarily trigger constitutional protections. See Virginia v. Moore, 553 U.S. 164 (2009) [Fourth Amendment did not require exclusion of evidence obtained as a result of a search based on an arrest permission under federal constitutional protections but illegal under state law].
SEVERAL STATES HAVE REJECTED ANY LEON “GOOD FAITH” EXCEPTION A number of state courts rejected the Leon “good faith” exception to the exclusionary rule on state constitutional grounds: “By treating the federal exclusionary rule as a judicially created remedy rather than a constitutional right, the Supreme Court’s decision focuses, not on interpretation of the federal constitution, but on an attempted empirical assessment of the costs and benefits of creating a good faith exception to the federal exclusionary rule. This empirical assessment can inform this Court’s decision on the good faith exception only to the extent that it is persuasive. If the assessment is flawed, this Court cannot simply accept the conclusion the Supreme Court draws from it. To do so would be contrary to our obligation to ensure that our state exclusionary rule effectuates [our State Constitutional provisions], and would deserve those rights. “When the [United States Supreme] Court’s analysis is examined carefully, however, it is clear that we have not been treated to an honest assessment of the merits of the exclusionary rule, but have instead been drawn into a curious world where the ‘costs’ of excluding illegally obtained evidence loom to exaggerated heights and where the ‘benefits’ of such exclusion are made to disappear with a mere wave of the hand.” “The exclusionary rule’s deterrent effect, however, does not rest primarily on ‘penalizing’ an individual officer into future conformity with the Constitution. Rather, it rests on ‘its 50
tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement agencies generally.’...It creates an incentive for the police as an institution to train its officers to conform with the Constitution. Consequently, the important question is not whether it is of any benefit to ‘penalize’ the objectively reasonable conduct of an individual officer, but rather whether failure to do so will lower the incentive for institutional compliance.” State v. Oakes, 598 A.2d 119 (Vt. 1991); see also Com. v. Edmunds, 586 A.2d 887, 899 (Pa. 1991). “Indeed, we disagree with that Court’s suggestion in Leon that we in Pennsylvania have been employing the exclusionary rule all these years to deter police corruption. We flatly reject this notion. We have no reason to believe that police officers or district justices in the Commonwealth of Pennsylvania do not engage in ‘good faith’ in carrying out their duties. What is significant, however, is that our Constitution has historically been interpreted to incorporate a strong right of privacy, and an equally strong adherence to the requirement of probable cause under Article 1, Section 8. Citizens in this Commonwealth possess such rights, even where a police officer in ‘good faith’ carrying out his or her duties inadvertently invades the privacy or circumvents the strictures of probable cause. To adopt a ‘good faith’ exception to the exclusionary rule, we believe, would virtually emasculate those clear safeguards which have been carefully developed under the Pennsylvania Constitution over the past 200 years.” Com. v. Edmunds, 586 A.2d at 399. “Initially, we note that the exclusionary rule, although primarily directed at police misconduct, is also appropriately directed at the warrant issuing process, and that it is somewhat odd to suppose that the exclusionary rule was not designed to deter the issuance of invalid warrants.... If we were to adopt the good faith exception, our practice of declining to address doubtful constitutional issues unless they are essential to the disposition of a case would preclude our consideration of probable cause beyond reviewing whether an officer had an ‘objectively reasonable’ belief in its existence. Absent a meaningful necessity to review probable cause determinations, we conclude that close cases will become ‘both the hardest to decide and the easiest to dispose of under the good faith exception; in such cases the officer’s objective good faith is clearest’...In short, we are simply unable to sanction a practice in which the validity of search warrants might be determined under a standard of ‘close enough is good enough instead of under the ‘probable cause’ standard mandated by article 1 section 7, of our state constitution.” State v. Marsala, 579 A.2d 58 (1990), remanded, 620 A.2d 1293 (Conn. 1993). See also State v. Guzman, 842 P.2d 660, 672, 677 (Idaho 1992). “In sum, the United States Supreme Court has abandoned the original purposes of the exclusionary rule as announced in Weeks and adopted by this Court in Arregui, in that the federal system has clearly repudiated any purpose behind the exclusionary rule other than that of a deterrent to illegal police behavior. Thus, the change in federal law has provided an impetus for a return by this Court to exclusive state analysis.... The exclusionary rule unencumbered by the good faith exception provides incentives for the police department and the judiciary to take care that each warrant applied for and issued is in fact supported by probable cause. In
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addition to encouraging compliance with the constitutional requirement that no warrant shall issue but upon probable cause, it also lessens the chances that innocent citizens will have their homes broken into and ransacked by the police because of warrants issued upon incomplete or inaccurate information. We believe these are laudable effects of the exclusionary rule which appear to have gone unrecognized by the Leon majority.” State v. Guzman, 842 P.2d at 672, 677. “The Leon good faith exception contemplates that appellate courts defer to trial courts and trail courts defer to the police. It fosters a careless attitude toward details by the police and issuing judicial officers and it even encourages them to attempt to get away with conduct which was heretofore viewed as unconstitutional.... The decision in Leon represents a serious curtailment of the Fourth Amendment rights of the individual. But under the broader protection guaranteed the individual under our State Constitution, the State is not permitted to introduce evidence in its case in chief which has been seized without probable cause.” State v. Novembrino, 491 A.2d 37, 45-46 (N.J. 1985). “Whether or not the police acted in good faith here, however, the Leon rule does not help the People’s position. That is so because if the People are permitted to use the seized evidence, the exclusionary rule’s purpose is completely frustrated, a premium is placed on the illegal police action and a positive incentive is provided to others to engage in similar lawless acts in the future. We therefore decline, on State constitutional grounds, to apply the good-faith exception the Supreme Court stated in United States v. Leon.” People v. Bigelow, 488 N.E.2d 451 (N.Y. 1985); See also State v. Grawien, 367 N.W.2d 816 (Wisc.), rev. denied, 371 N.W.2d 375 (1985); State v. Joyce, 639 A.2d 1007 (1994). Other state courts have come to the same conclusion on statutory grounds. See Com. v. Upton, 476 N.E.2d 548 (Mass. 1985); Gary v. State, 422 S.E.2d 426 (Ga. 1992), aff’d, State v. Gary, 432 S.E.2d 123 (Ga. 1993). But see State v. Wills, 524 N.W.2d 507 (Minn. App. 1994); Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990). Texas has a statutory exclusionary rule, Tex. R. Cr. P. art. 38.23(a) which provides that: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” TEX. R. CRIM. P. Art. 38.23(a). Tex. R. Cr. P. Art. 38.23(b) provides that: “It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith
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reliance upon a warrant issued by a neutral magistrate based upon probable cause.” TEX. R. CRIM. P. Art. 38.23(b). The Texas Court of Criminal Appeals has interpreted the language of this particular statute to constitute an express legislative rejection of any Leon “good faith” exception. “We also note the appeals court was incorrect in finding the statute a codification of United States v. Leon,...because Art. 38.23(b) requires a finding of probable cause, while the exception enunciated in Leon appears more flexible in allowing a good faith exception if the officer’s belief in probable cause is reasonable. Thus, we must direct our attention to the validity of the warrant and affidavit without recourse to any ‘good faith’ exception to the warrant requirement.” Gordon v. State, 801 S.W.2d 899, 912–13 (Tex. Crim. App. 1990).
SUBJECTIVE INTENT OF THE OFFICERS The Supreme Court has repeatedly held that the “motivations of individual officers,” their “subjective intentions play no role in ordinary probable cause Forth Amendment analysis.” Whren v. U.S., 517 U.S. 806 (1996).
Supreme Court reiterates that it will “not entertain Fourth
Amendment challenges based on the actual motivations of individual officers.” “A traffic-violation arrest will not be rendered invalid by the fact that it was ‘a mere pretext for a narcotics search.” Arkansas v. Sullivan, 532 U.S. 769 (2001). Furthermore, in a unanimous opinion the Supreme Court held that officers may enter a residence without a warrant where there exists an emergency, regardless of the officers “subjective intent.” See Brigham City Utah v. Stuart, 547 U.S. 398, 405 (2006) (“[i]t therefore does not matter here…whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence.” The distinction between an “inventory” and a “search” is “based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence of crime.” Florida vs. Wells, 495 U.S. 1 (1990). In City of Indianapolis v. Edmond, “[t]he primary purpose of the Indianapolis narcotics checkpoints is in the end to advance the general interest in crime control…. We decline to suspend the usual requirement of individualized 53
suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes.” 531 U.S. 32 (2000). The Court held that it “cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.” However, in practice, courts, of necessity, regularly look to an officers, purpose or subjective intent when making such determinations. For instance, in Bond v. U.S., an officers purpose in squeezing a bag in a closed compartment was “exploratory”, and thus a “physical manipulation of petitioner’s bag [that] violated the Fourth Amendment.” 529 U.S. 334, 339 (2000). In U.S. v. Green, officers could not search the passenger compartment of a vehicle pursuant to New York v. Belton, where Defendant was arrested some six to ten feet away from his vehicle. “The principle behind Belton and Chimel is [protection of] police officers and citizens who may be standing nearby from the actions of an arrestee who might gain access to a weapon or destructible evidence…. Although Green tried to flee…at the time the search occurred he was handcuffed and lying face down on the ground surrounded by four police officers, approximately six to ten feet from his vehicle.… Because none of the concerns articulated in Chimel and Belton regarding law enforcement safety and the destruction of evidence [were] present in this case, the Government cannot justify the search of Green’s vehicle under Belton or Chimel.” U.S. v. Green, 324 F.3d 375, 379 (2003). Driver’s license roadblocks used to enforce general criminal investigations are prohibited, in Texas. “While the statute purports to give peace officers the right to stop and detain motorists for the limited purpose of checking their driver’s or operator’s licenses, it does not authorize fishing expeditions.” Meeks vs. State, 692 S.W.2d 504 (1985).
INVADING THE THRESHOLD OF ONE’S HOME
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“[T]he Fourth Amendment has drawn a firm line at the entrance to the house, holding that absent exigent circumstances, the threshold of the home may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573 (1980). Police must obtain an arrest warrant to arrest someone in their home, even where the suspect voluntarily opens the door and exposes himself to public view in response to police knocks. Payton establishes a bright-line rule that “any physical invasion of the structure of the home, ‘by even a fraction of an inch,’ is too much.” McClish v. Nugent, 483 F.3d 1231 (11th Cir. 2007).
CONSENSUAL SEARCHES (CO-OCCUPANT’S REFUSAL)
In Georgia v. Randolph, 547 U.S. 103 (2006), the Court held that law enforcement officers’ warrantless search of a shared home pursuant to the consent of one resident violated the Fourth Amendment rights of another resident who is present and expressly objects to the search. The Court reasoned that the Fourth Amendment’s prohibition of unreasonable searches and seizures forbade law enforcement officers to conduct a warrantless search of a home pursuant to the consent of the wife when the husband was present on the scene and objected to the search.
REMOVING THE NON-CONSENTING SPOUSE FROM PREMISIS Fernandez v. California, 571 U.S. 292 (2014). Police entered the Fernandez residence, responding to a family disturbance. When officers asked for consent to search Fernandez refused. After arresting and removing Fernandez from the premises, those same officers returned about an hour later, and after obtaining his wife’s consent proceeding to search the home.
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Justice Alito, writing for the majority, noted: “[t]he Court’s opinion [in Randolph] went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present.” Id. at 301. The Court held “that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.” Id. at 303. Justices Scalia and Thomas concurred in the judgment, yet wrote separately to state that they would “find this a more difficult case if it were established that property law did not give petitioner’s cotenant the right to admit visitors over petitioner’s objection.” Id. at 1138 (Scalia, J., concurring). This rationale is consistent with Justice Scalia’s previously employed reasoning in U.S. v. Jones, 565 U.S. 400 (2012) and Florida v. Jardines, 569 U.S. 1 (2013), where he used property law to decide Fourth Amendment issues. In their dissent, Justices Ginsburg, Sotomayor, and Kagan note that the case should have been easily resolved adhering to the warrant requirement. “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate.” Fernandez v. California, 571 U.S. 292 (2014).
EXIGENT CIRCUMSTANCES Kentucky v. King, 563 U.S. 452 (2011) Although warrantless searches are presumptively unreasonable under the Fourth Amendment, the Court has carved out exceptions to that general rule for (among other things) exigent circumstances, such as the imminent destruction of evidence. The lower courts had held that the exigent circumstances rule did not apply when the exigency was created by police conduct, but there was no consensus on how to determine when police impermissibly create such exigencies. In Kentucky v. King, the Court, in an opinion by Justice Alito, held that the exigent
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circumstances rule applies as long as the police do not use an actual or threatened violation of the Fourth Amendment to gain entry to a premises. The case arose from efforts by police to follow a suspected drug dealer into an apartment building. Although the officers were unsure which apartment the suspect had entered, they smelled marijuana wafting from one apartment: they then knocked on that door and identified themselves as police. When they heard shuffling noises inside the apartment after the knock, the police believed evidence was being destroyed and entered the apartment without a warrant; inside, they found respondent Hollis Deshaun King, along with drugs and drug paraphernalia. In reaching its holding, the Court rejected several other tests adopted by lower courts generally and the Kentucky Supreme Court in this case: it reasoned, for example, that a “bad faith” requirement would be inappropriate because only objective reasonableness is relevant; that a “reasonable foreseeability” test would be too unpredictable and difficult to quantify; that requiring police to get a warrant as soon as they have probable cause would “unjustifiably interfere[] with legitimate law enforcement strategies” and is inefficient; that a test that inquires into whether police used standard or good investigative tactics would “fail[] to provide clear guidance for law enforcement officers”; and that a test that examines whether the police action “would cause a reasonable person to believe that entry is imminent and inevitable” turns on too many “subtleties.” The Court explained that its test will still provide “ample protection for the privacy rights that the Amendment protects.” Occupants may still decline to open the door or speak with police, and if they choose to open the door they can refuse to answer questions or allow the police to come inside. “Occupants who…elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue,” the Court warns.
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In her dissent, Justice Ginsburg contends that the Court’s decision “arms police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases”. In a largely rhetorical question, she also asks whether our homes will actually remain secure “if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity[.]” To maintain the protections of the Fourth Amendment, she argues, the exigent circumstances must exist “when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.” Justice Ginsburg notes that if the police had not knocked, no evidence would have been destroyed; she emphasizes that even the Court’s opinion concedes that “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police,” and here the suspects would not have anticipated police discovery but for the knock. The police could have posted officers outside the apartment while obtaining a warrant for entry because there was “very little risk” that the evidence would have been destroyed while awaiting a warrant. In its opinion, the Kentucky Supreme Court had assumed without deciding that exigent circumstances were present in this case, and the Court’s opinion did not resolve that question, instead leaving that factual question open for the Kentucky Supreme Court to decide on remand.
WARRANTLESS BLOOD DRAW Missouri v. McNeely, 569 U.S. 141 (2013). Shortly after 2am, a Missouri police officer stopped McNeely’s truck after observing him speed and cross the centerline repeatedly. Id. After failing field-sobriety tests and declining to take a portable breath analysis test, McNeely was arrested. Id. While in transport to the station house, McNeely indicated that he would refuse to take a breath test at that location. Id. Without attempting to secure a warrant, the officer took McNeely to the hospital. Id. There, he advised
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McNeely that refusal to submit voluntarily to a blood draw to test for alcohol would result in an automatic suspension of his license. Id. McNeely nonetheless refused. Id. “The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely’s BAC at 0.154 percent, which was well above the legal limit of 0.08 percent.” Id. The Court noted that a warrantless search of a person is reasonable only if it falls within a recognized exception. Id. at 148 (citing United States v. Robinson, 414 U.S. 218, 224 (1973)). “That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s “most personal and deep-rooted expectations of privacy.” Winston v. Lee, 470 U.S. 753, 760 (1985); see also Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616 (1989); McNeely, 569 U.S. at 148. The Court noted that there are exigencies which are so compelling that law enforcement may engage in a warrantless search which is, at that time, objectively reasonable. Id. These include: “law enforcement’s need to provide emergency assistance to an occupant of a home, Michigan v. Fisher, 558 U.S. 45, 47–48 (2009) (per curiam), engage in “hot pursuit” of a fleeing suspect, United States v. Santana, 427 U.S. 38, 42–43 (1976), or enter a burning building to put out a fire and investigate its cause, Michigan v. Tyler, 436 U.S. 499, 509–510 (1978). As is relevant here, we have also recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence. See Cupp v. Murphy, 412 U.S. 291 (1973); Ker v. California, 374 U.S. 23, 40–41 (1963) (plurality opinion). While these contexts do not necessarily involve equivalent dangers, in each a warrantless search is potentially reasonable because “there is compelling need for official action and no time to secure a warrant.” Tyler, 436 U.S., at 509; McNeely, 569 U.S. at 159 (emphasis added). The Court went on to note that “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id. at 145. “While the desire for a bright-line rule is understandable, the Fourth Amendment will
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not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake.” Id. at 158. Further, “the general importance of the government’s interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impracticale in a particular case.” Id. at 160. Writing for another 5 to 4 majority, Justice Sotomayor holds that: “…natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment’s search warrant requirement for nonconsensual blood testing in all drunk-driving cases, and instead, exigency in this context must be determined case by case based on the totality of the circumstances.” McNeely, 569 U.S. at 145 (2013). In a characteristically short dissent, Justice Thomas wrote: “Because the body’s natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment.” McNeely, 569 U.S. at 176 (Thomas, J., dissenting).
DNA SAMPLE TAKEN AT BOOKING Maryland v. King, 569 U.S. 435 (2012). In 2009, Alonzo King was arrested for assault. King, 569 U.S. at 440. As part of the booking procedure for serious crimes used in Wilcomico County, Maryland, King’s DNA sample was taken by applying a buccal swab to the inside of his cheeks. Id. The DNA was found to match that from a rape case, six years prior. Id. The Court of Appeals of Maryland later “ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person” and set aside his conviction. Id. In an opinion authored by Justice Kennedy, the Supreme Court reversed the judgment of the Maryland court. Id.
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Justice Kennedy noted that “[a]lthough the DNA swab procedure used here presents a question the Court has not yet addressed, the framework for deciding the issue is well established.” Id. at 1968. The Justice went on to note that “[a] buccal swab is a far more gentle process than a venipuncture to draw blood. It involves but a light touch on the inside of the cheek; and although it can be deemed a search within the body of the arrestee, it requires no ‘surgical intrusions beneath the skin.’” Id. at 446 (citing Winston v. Lee, 470 U.S. 753, 760 (1985)). In some circumstances, such as “[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” Illinois v. McArthur, 531 U.S. 326 (2001). “Those circumstances diminish the need for a warrant, either because ‘the public interest is such that neither a warrant nor probable cause is required,’ or because an individual is already on notice, for instance because of his employment, or the conditions of his release from government custody, that some reasonable police intrusion on his privacy is to be expected. The need for a warrant is perhaps least when the search involves no discretion that could properly be limited by the “interpo[lation of] a neutral magistrate between the citizen and the law enforcement officer.” Maryland v. King, 569 U.S. 435, 447 (2013) (internal citations omitted). Under this background, Justice Kennedy went on to note that the Maryland DNA Collection Act, which allowed the collection of King’s DNA, calls for “all arrestees charged with serious crimes [to] furnish the sample on a buccal swab applied, as noted, to the inside of the cheeks.” Id. at 447–448. In this scenario, the arrestee is “already in valid police custody for a serious offense supported by probable cause.” Id. Justice Kennedy also described how he determined the sample taking to be reasonable when compared to the interest served. “The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.”
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Id. Further, “[a] suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention.” Id. at 450. In conclusion, Justice Kennedy offered: In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent, not only so that the proper name can be attached to his charges, but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. King, 569 U.S. at 465-466. Justice Scalia in his dissent, which was joined by Justices Ginsburg, Sotomayor, and Kagan, Justice Scalia sarcastically opined that: “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.” King, 569 U.S. at 482 (Scalia, J., dissenting).
DEADLY FORCE AND THE FOURTH AMENDMENT Mullenix v. Luna, 136 S.Ct. 305 (2015) (per curiam). In Mullenix, a police officer approached Israel Leija, Jr., at a drive-in restaurant with an arrest warrant. 136 S.Ct. 305, 306 (2015). The suspect next took police on a high-speed chase for nearly 20 minutes at speeds between 85 and 100 miles per hour. Id. Leija called police dispatch twice during the chase, claiming he had a gun and threatening to shoot at the police if they did not terminate their pursuit. Id. Trooper Chadrin Mullenix and other officers continued to pursue Leija.
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Officer Mullenix drove to a nearby location to set up spikes to stop the suspect, but after learning that other spikes had been set up at different locations, he began to consider shooting at Leija’s car to disable it instead. Id. When Leija’s car approached, Mullenix fired six shots, the car struck the spike strips, hit the median and rolled several times. Id. at 307. It was later determined that Leija died as a result of being shot my Mullenix. Id. Respondents sued Mullenix, alleging he violated the Fourth Amendment by using excessive force against Leija. Id. Mullenix moved for summary judgment, arguing he was entitled to qualified immunity, but the District Court denied his motion. Id. The District Court found that there were genuine questions of fact regarding whether, under the circumstances, Mullenix acted as a reasonable officer would have. Id. Mullenix appealed, but the Fifth Circuit affirmed and subsequently denied his petition for a hearing. In a per curiam opinion, the Court held that there was no clearly established law that the use of deadly force directed at a fleeing suspect posing a danger to others violates the Fourth Amendment. The Court held that the proper question in such scenarios is whether, under the specific context of the case, the Fourth Amendment prohibited the officer’s conduct. Id. at 308. The Court concludes that because it was not clearly established that Officer Mullenix’s actions were inappropriate under the specific circumstances, the appellate court and district court erred in holding that he was not entitled to qualified immunity. Id. at 312. In a concurring opinion, the late Justice Scalia articulated that it was conceded in the case that Mullenix did not shoot to kill or wound Leija, but only to cause the car to stop by destroying the engine. Id. at 313. Scalia wrote that the Fourth Amendment requires us to ask whether it was reasonable to shoot at the engine in light of the risk Leija. Id.
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Justice Sotomayor dissented, arguing that it was clear under Fourth Amendment precedent that an officer in Mullenix’s position should not have acted as he did unless there was a significant interest that outweighed the intrusion into Leija’s Fourth Amendment rights.
Id.
Justice
Sotomayor asserts that under the circumstances, Mullenix had no plausible reason to choose to shoot at the suspect rather than wait for the results of the spike strips. Id. at 315. She concludes that because of this, she would hold that Mullenix violated Leija’s “clearly established right to be free of intrusion absent some governmental interest.” Id. Sotomayor also asserts that the majority focused on the wrong legal question by dwelling on the imminence of the threat posed by the suspect. Id. at 316.
EROSION OF THE EXCLUSIONARY REMEDY Given the steady erosion of that remedy in recent years, Justice Gorsuch’s views may prove critical, particularly given that many of the opinions limiting the application of the exclusionary remedy were decided by a 5 to 4 vote on the Court. Obviously, Gorsuch and Kavanagh’s vote will prove critical with respect to whether the exclusionary rule will continue as an effective and meaningful remedy for Constitutional violations. This past decade has seen a trend toward a much more forgiving attitude when it comes to illegal and unconstitutional police conduct. The Court’s new majority seems increasingly willing to sacrifice citizens’ Constitutional rights and liberties in order to obtain evidence and convictions of those that our Constitution and those same officers are supposed to protect. For example, in Hudson v. Michigan, 547 U.S. 586 (2006), Justice Scalia, writing for a 5 to 4 majority, opines that the Court has never held evidence inadmissible, simply because it was obtained by reason of an unconstitutional search or seizure.
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“We have never held that evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” (emphasis supplied). In Herring v. U.S., 555 U.S. 235 (2009) the Chief Justice, writing for another 5 to 4 majority, takes this concept one step further, holding that in order to warrant suppression of evidence obtained by exploitation of an illegal search or seizure the law enforcement’s unconstitutional conduct must have been “culpable” and “deliberate.” “Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence, attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence…The principal [social] cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that offends basic concepts of the criminal justice system.” In Davis v. U.S., 569 U.S. 229 (2011) Justice Alito goes even further, taking issue with Scalia’s insistence that the Court has never held that evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Justice Alito announces that the Court has now “abandoned the old ‘reflexive’ application” of the exclusionary remedy, opting instead for a balancing test, a “cost-benefit analysis,” limiting exclusion to those where the police’ misconduct is culpable and flagrant. “We came to acknowledge the exclusionary rule for what it undoubtedly is—a ‘judicially created remedy’ of the Court’s own making…We abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits…We also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the ‘flagrancy of the police misconduct at issue.” Again, Justice Alito, writing for a 6-member majority, 24 makes clear that whether courts will apply the exclusionary remedy depends upon a cost/benefit balancing test.
24 Kagan joined Alito’s opinion and Sotomayor wrote a concurrence.
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“But when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful…the ‘deterrence rationale loses much of its force,’ and exclusion cannot ‘pay its way.’”
BURDEN SHIFTING However, there is considerable difference between excusing illegal police conduct (not applying an exclusionary remedy) where it can be shown to have been engaged in “reasonable good faith,” and shifting the burden to the accused to show that same was “deliberate,” “culpable,” and “flagrant.”
THE VANISHING “FRUIT OF THE POISONOUS TREE” DOCTRINE s
Even more troubling is the most recent of these exclusionary rule cases. In Utah v. Strieff, 136 S.Ct. 2056 (2016), Justice Thomas, writing for a 5-member majority, 25 held that an outstanding warrant, discovered as the direct result of his illegal stop, admittedly without reasonable suspicion, somehow “attenuated” the contraband discovered incident to that arrest. “To enforce the Fourth Amendment's prohibition against ‘unreasonable searches and seizures,’ this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits…We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer's discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.” Strieff, 136 S.Ct. at 2059. This balancing test, weighing the “deterrence benefits” of applying the exclusionary rule against its “social costs,” described by the Court as “letting guilty and possibly dangerous defendants go free,” is a test that will leave the accused citizen with a difficult, if not impossible burden.
25 This opinion, written after Justice Scalia’s death, was 5 to 3, with Justice Breyer joining the
majority. Accordingly, the addition of Justice Gorsuch would, in all likelihood, not change the outcome. 66
In her dissent, Justice Sotomayor seems to understand the sophistry of accepting the prospect that we have been promised fundamental Constitutional rights, without providing any meaningful remedy for their violation. “It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right. When ‘lawless police conduct’ uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.” Strieff, 136 S.Ct. at 2065 (internal citations omitted). Whether a long-time, well-settled doctrine or a fresh new concept, the impact of this new cost/benefit balancing test upon remedying constitutional violations is obvious. It would appear that henceforth it may become incumbent upon defense counsel not just to establish that the contraband or incriminating evidence was discovered by reason of a Constitutional violation, but to demonstrate that the police conduct was culpable, deliberate and flagrant, as well as illegal. Moreover, Gorsuch’s vote could be critical to any interpretation and/or reevaluation of this more “rigorous” test for whether to provide a meaningful remedy for Constitutional violations, particularly given the close majority insistent upon this requirement. Perhaps Justice Sotomayor’s pithy and telling dissent will have some impact on our junior Justice: “We must not pretend that the countless people who are routinely targeted by police are ‘isolated.’ They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”
CONCLUSION “Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers—one at a time.” Kaley v. U.S., 571 U.S. 320 (2014), Roberts, Ch.J., dissenting.
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The Chief Justice is speaking to each one of us, Brothers and Sisters, paying tribute to the critically important role our defense function plays in the criminal justice system we all serve. Our collective voices are strong and our skills and talents formidable. Let us stand up to injustice and raise our voices in protest. We owe that to ourselves, our clients and our profession. .
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About TCDLA TCDLA began more than 45 years ago as a small, nonprofit association and has grown into a state-of-the-art organization, providing assistance, support, and continuing education to its members. TCDLA provides a statewide forum for criminal defense lawyers and is one of the few voices in the legislature interested in basic fairness in the defense of criminal cases. We are proud that many of our 3,800 members are elite criminal defense professionals in Texas. TCDLA hosts more than 60 seminars each year, providing the highest-quality legal education available for new lawyers as well as seasoned veterans. Our seminars are attended regularly by our members, non-members, judges, and professionals in related fields. Our yearly seminars have increased to over 9,000 people continuing their educational opportunities each year. Join today and become part of a long history of providing services and assistance in the great state of Texas, while accessing valuable resources, services, support, and discounts on seminars, travel, and technology. How to Apply: Submit an application online at tcdla.com Email application to mduarte@tcdla.com Mail application to: Texas Criminal Defense Lawyers Association 6808 Hill Meadow Drive Austin, TX 78736 TCDLA Benefits See the full list at tcdla.com Resources: • Networking opportunities with the best criminal defense lawyers in Texas • Strike Force • TCDLA APP includes criminal codes, statutes, and case law • Online Resources, a library including motions, transcripts, briefs, seminars, & more • Voice for the Defense magazine, the only statewide magazine written specifically for criminal defense lawyers • Listserv connecting our community on important issues • Significant Decisions Report emailed weekly • Legislature lobbyists advocating on behalf of Members • Expert list for experts in a multitude of practice areas • Moot Court provided on request
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Payment Method q Check payable to TCDLA q Credit Card (Visa, Mastercard, Amex, or Discover) _________________________________________________________________
__________________________________________________________________
_________________________________________________________________
__________________________________________________________________
Credit Card Number
Name On Card
Expiration Date
Signature
Mail completed pledge form with payment to TCDLA • 6808 Hill Meadow Drive • Austin, Texas 78736 TCDLA Office Use Only Amount:___________________________________ Check/cc: _______________________________________ Entered By: ______________________________________ Date: ____________________________________
www.tcdla.com