Capital Seminar

CAPITAL DEFENSE

February 5, 2021 GUILTY?

Course Director: Rick Wardroup

Seminars spon­sored by CDLP are funded by ‘the Court of Criminal Appeals of Texas.

CAPITAL SEMINAR SEMINAR INFORMATION Date Location Course Director Total CLE Hours:

February 5, 2021 Livestream Event David Ryan and Rick Wardroup 7.0 Ethics: 1.0

Friday, February 5, 2021 Time

CLE

8:30 am

Daily CLE Hours: 7.0 Topic

Ethics: 1.0 Speaker

Opening Remarks

David Ryan and Rick Wardroup

8:45 am

1.0

Death and Race; Then and Now

Lydia Clay-Jackson

9:45 am

1.0

Finding the Hidden Ball

Nicole DebordeHochglaube

10:45 am 11:00 am

Break 1.0

12:00 pm

IDD, Competency and Insanity

Susan Anderson

Lunch Break

12:15 pm

1.0 Lunch Presentation: The Impact of Implicit Gender Bias Ethics 1:15 pm Break

Juandalynn Taylor

1:30 pm

1.0

Capital Jury Selection, Strategy and Execution

Mandy Miller

2:30 pm

1.0

Scorched Earth Litigation

Lisa Andrews

3:30 pm 3:45 pm 4:45 pm

Break 1.0

Recent Texas Death Penalty Developments at the Supreme Court

Gretchen Sween

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Capital Seminar Table of Contents

Speaker

Topic Friday, February 5, 2021

Nicole DebordeHochglaube

Finding the Hidden Ball

Susan Anderson

IDD, Competency and Insanity

Juandalynn Taylor Mandy Miller Lisa Andrews Gretchen Sween

The Impact of Implicit Gender Bias Capital Jury Selection, Strategy and Execution Scorched Earth Litigation Recent Texas Death Penalty Developments at the Supreme Court

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Capital Seminar Table of Contents

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Capital Seminar February 5, 2021 Livestream

Topic: Finding the Hidden Ball, Believe but Confirm Speaker:

Nicole Deborde-Hochglaube 3515 Fannin St. Houston, TX 77004 (713) 526-6300 Phone (713) 808-9444 Fax Nicole@HoustonCriminalDefense.com www.debordelawfirm.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

TCDLA 2021

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Independent investigation requires an adversarial testing of the State’s evidence. § Failure to conduct adversarial testing of the

State’s evidence is IAC: Strickland v. Washington

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Texas Disciplinary Rule of Professional Conduct 3.08,: § a lawyer is generally prohibited from being “an

advocate before the tribunal...if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client.”

Ethical rule violation because attorney must authenticate

Jury must make credibility determination

Know their subject matter

Extensive pretrial discovery

Talk to your own witnesses

Understand the relationships

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Attempt to have witnesses interviewed § complainant’s associates § snitch (case pending? Call the lawyer.) Before the

debriefings if possible? § police witnesses § State’s experts. (CAC people, ME’s, lab personnel, etc. § Do not do yourself without investigator present – record, record, record.

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attorney reaching out makes it clear that he represents the accused client and is not a “disinterested party.” § TEX. DISCIPLINARY R. PROF’L

CONDUCT 4.03

Do not contact represented witnesses – the State does not represent witnesses

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Preferable to conduct interviews to avoid conflict

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Develop and follow up on leads

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To testify (photos, attempts to locate info, records admission, etc.)

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Money should never be the reason you do not hire Ake v. Oklahoma; Briggs

Get all statements: recorded, notes, MOI’s, 302’s. Task force? State prosecutor is being short changed and they usually don’t know it. ¡ Debriefings? Cross starts with cross of others in the room. ¡ RIP call makes caller/interviewer a witness ¡ DA notes about what happened are NOT work product. (see 39.14) ¡

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Snitch testimony is always preceded by snitch debriefing (prep) ยง How many times did they meet? When? Where? ยง Who was there? How long were the meetings? ยง Was it recorded? Who was taking notes? ยง Who did the questioning? What was the focus?

Why did the meeting end?

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Understand their motivations § Relationship with D § Pending Case? § Sentence Reduction?

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Get entire criminal record § PIA old files § Where/when in custody § PIA/subpoena visitation records/logs

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Social Media Search Accurint/Public Data Search

Yes! Commentary to TDCRPC – comment 3 ¡ “However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large.” ¡

Lab reports, drafts notes and worksheets Training Supporting materials Reports CVs and training Personnel files Prior testimony Protocols an manuals Equipment calibration, certification or inspection records ¡ Speaking engagements ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡

¡ ¡ ¡ ¡ ¡ ¡ ¡

the expert’s qualifications; the validity of the underlying scientific theory used by the expert; the technique used by the expert to apply the theory; how the expert applied the technique; the legitimacy of the field of expertise; whether the subject matter of the expert’s testimony is within the scope of that field; and whether the expert’s testimony properly utilizes the principles involved in the field

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Meet Record Bring investigator

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Typical contents: § NCIC/TCIC background check of Defendant § Draft of offense report § Basic lab report § Initial witness statements § Some photographs

¡ ¡ ¡ ¡ ¡ ¡ ¡ ¡

Complete offense report with all supplements TCIC/NCIC background on state’s witnesses Supporting documentation for lab reports (often as much as 1000 pages) All photographs, video and audio from agency handling case MDT’s and AVLs Dispatch logs and audio CPS records All Federal reports and interviews

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Criminal background of witnesses § 404b, 609, 37.07 Requests (not motion) § Old criminal case files (PIA)

¡ ¡ ¡

Social Media (do not sneak on) Civil Files (Accurint, www.publicdata.com) TCOLE (PIA) § Training records and places of employment –

subpoena details from here § Personnel files (PIA) ¡

U-Visa Application (PIA)

Employment records (subpoena) School Records (subpoena) Medical Records (subpoena with protective order) ¡ CPS Records (subpoena with order) ¡ Snitch file (subpoena from agency) ¡ ¡ ¡

§ Payment logs § Use information – complete file

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AVL’s and MDT’s (subpoena) Search Warrants and PC affidavits Bail or other proceeding documentation Grand Jury Transcripts Expert CV’s Prior testimony of recurring witnesses Supporting reports for any testing or expert conclusions

¡ ¡ ¡ ¡

Police Agencies’ Use of Force Policies Crime Scene Reconstruction Independent evaluation of scientific evidence Strengthening Forensic Science in the United States: A Path Forward § https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf

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National Commission on Forensic Sciences (now disbanded – archived

https://www.nist.gov/interdisciplinarytopics/national-commission-forensic-science information

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https://www.justice.gov/archives/ncfs/page/file/839711/download

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Nuggets like: “13. Reports and other records shall not be altered and information shall not be withheld for strategic or tactical advantage” § DOJ version here: https://www.justice.gov/opa/file/891366/download

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The term "reasonable medical certainty" has no scientific meaning. Its legal meaning is at best ambiguous, at worst misleading. It is not required by the Federal Rules of Evidence, nor any other evidence code. More importantly, the term ("scientific certainty") is problematic for a different reason--misleading the jury, and should be excluded under Federal Rule 403 for that reason alone.

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Paul Gianelli, Scientific Evidence"Reasonable Scientific Certainty": A Phrase in Search of a Meaning, Crim. Just., Spring 2010, at 40, 41.

Nicole@debordelawfirm.com 713-526-6300

Texas Criminal Defense Lawyers Association

Capital Seminar February 5, 2021 Livestream

Topic: IDD, Competency and Insanity Speaker:

Susan Anderson

608 N. Rockwall Terrell, TX 75160 (972) 551-0100 Phone seacrimlaw@gmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Intellectual Disability Insanity Defense Incompetence SUSAN E. ANDERSON FEBRUARY 5, 2021

Intellectual Disability

Atkins v. Virginia, 536 US 304 (2002)

Execution of anyone who is intellectually disabled constitutes

“cruel and unusual punishment� under the 8th Amdt

Atkins v. Virginia, 536 US 304 (2002)

Intellectual deficits left them with diminished capacity to: ▪

Understand and process information

▪

Communicate

▪

Learn from experience

▪

Reason logically

▪

Control impulses

▪

Understand the reactions of others

Atkins v. Virginia, 536 US 304 (2002)

Because of disabilities in the area of reasoning, judgment, and impulse control, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.

Moore v. Texas, 137 S.Ct. 1039 (2018)

Specifically rejected Briseno factors ▪

They are an invention of the Texas Court of Criminal Appeals

▪

Not tied to any acknowledged source

State courts must be guided by the medical community’s diagnostic framework.

Moore v. Texas, 139 S.Ct. 666 (2019)

Texas Court of Criminal Appeals assessment was not grounded in prevailing medical practice.

They invited “lay perceptions of intellectual disability” and “lay stereotypes” to guide their assessment.

What is Intellectual Disability?

Significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.

- CCP 46B.001

What is Intellectual Disability?

Three Prongs 1. Below Average IQ

2. Adaptive Behavior 3. Age of Onset

Prong #1: Below Average IQ

Two standard deviations below the mean of 100

Usually falls around 70 (+/-5) or lower

Prong #2: Adaptive Behavior

The collection of conceptual, social, and practical skills that are learned and performed by people in their everyday lives. – AAIDD*

* American Association of Intellectual and Developmental Disabilities

Prong #2: Adaptive Behavior

The effectiveness with or degree to which a person meets the standards of personal independence and social responsibility expected of the person’s age and cultural group.

-- CCP 46B.001(1)

Prong #2: Adaptive Behavior Must have deficits in at least one of these three domains: ▪

Conceptual Skills

▪

Social Skills

▪

Practical Skills

Prong #2: Adaptive Behavior

Strengths are NOT considered when assessing

adaptive functioning deficits.

Prong #2: Adaptive Behavior Conceptual Skills ▪

Language and literacy

▪

Money, time, and numbers

▪

Self-direction

Prong #2: Adaptive Behavior Social Skills ▪

Interpersonal skills

▪

Social responsibility

▪

Self-esteem

▪

Gullibility, naivete, and wariness

▪

Social problem solving

▪

Ability to follow rules & obey laws

▪

Avoid being victimized

Prong #2: Adaptive Behavior Social Skills ▪

Interpersonal skills

▪

Social responsibility

▪

Self-esteem

▪

Gullibility, naivete, and wariness

▪

Social problem solving

▪

Ability to follow rules & obey laws

▪

Avoid being victimized

Prong #2: Adaptive Behavior Social Skills ▪

Interpersonal skills

▪

Social responsibility

▪

Self-esteem

▪

Gullibility, naivete, and wariness

▪

Social problem solving

▪

Ability to follow rules & obey laws

▪

Avoid being victimized

Prong #2: Adaptive Behavior Social Skills ▪

Interpersonal skills

▪

Social responsibility

▪

Self-esteem

▪

Gullibility, naivete, and wariness

▪

Social problem solving

▪

Ability to follow rules & obey laws

▪

Avoid being victimized

Prong #2: Adaptive Behavior Social Skills ▪

Interpersonal skills

▪

Social responsibility

▪

Self-esteem

▪

Gullibility, naivete, and wariness

▪

Social problem solving

▪

Ability to follow rules & obey laws

▪

Avoid being victimized

Prong #2: Adaptive Behavior Social Skills ▪

Interpersonal skills

▪

Social responsibility

▪

Self-esteem

▪

Gullibility, naivete, and wariness

▪

Social problem solving

▪

Ability to follow rules & obey laws

▪

Avoid being victimized

Prong #2: Adaptive Behavior Social Skills ▪

Interpersonal skills

▪

Social responsibility

▪

Self-esteem

▪

Gullibility, naivete, and wariness

▪

Social problem solving

▪

Ability to follow rules & obey laws

▪

Avoid being victimized

Prong #2: Adaptive Behavior Social Skills ▪

Interpersonal skills

▪

Social responsibility

▪

Self-esteem

▪

Gullibility, naivete, and wariness

▪

Social problem solving

▪

Ability to follow rules & obey laws

▪

Avoid being victimized

Prong #2: Adaptive Behavior Practical Skills ▪

Activities of daily living

▪

Occupational skills

▪

Travel/transportation

▪

Schedules/routines

▪

Safety

▪

Money

Prong #2: Adaptive Behavior Practical Skills ▪

Activities of daily living

▪

Occupational skills

▪

Travel/transportation

▪

Schedules/routines

▪

Safety

▪

Money

Prong #2: Adaptive Behavior Practical Skills ▪

Activities of daily living

▪

Occupational skills

▪

Travel/transportation

▪

Schedules/routines

▪

Safety

▪

Money

Prong #2: Adaptive Behavior Practical Skills ▪

Activities of daily living

▪

Occupational skills

▪

Travel/transportation

▪

Schedules/routines

▪

Safety

▪

Money

Prong #2: Adaptive Behavior Practical Skills ▪

Activities of daily living

▪

Occupational skills

▪

Travel/transportation

▪

Schedules/routines

▪

Safety

▪

Money

Prong #2: Adaptive Behavior Practical Skills ▪

Activities of daily living

▪

Occupational skills

▪

Travel/transportation

▪

Schedules/routines

▪

Safety

▪

Money

Prong #2: Adaptive Behavior Practical Skills ▪

Activities of daily living

▪

Occupational skills

▪

Travel/transportation

▪

Schedules/routines

▪

Safety

▪

Money

Prong #3: Age of Onset DSM-IV: Before the age of 18

DSM-5: No cutoff age AAIDD: 22 years old CCP 46B.001: The period of life from birth through 17 years of age

Investigating ID Claims

RECORDS!

RECORDS!!

RECORDS!!!

Investigating ID Claims IQ Testing Records ▪

Get the raw data

▪

What test was used and when?

▪

Who gave the test?

▪

Who interpreted the results?

Investigating ID Claims School Records: ▪

Special Education classes?

▪

Accommodations given?

▪

Graduate or GED?

▪

Teachers' comments

Investigating ID Claims Employment Records ▪

Skilled vs Unskilled

▪

Application

▪

Write-ups?

Investigating ID Claims Medical Records â–Ş

Prenatal care of mother

â–Ş

Consistent medical care as child?

Investigating ID Claims CPS Records ▪

Neglect or inadequate parenting resources

▪

Physical or emotional abuse?

▪

Stable home life with positive adult role models?

▪

Poverty?

Investigating ID Claims Other Records ▪

Social Security Disability

▪

Social Security records for earnings

▪

Military

▪

Jails and prisons

Investigating ID Claims

INTERVIEW!

INTERVIEW!!

INTERVIEW!!!

Investigating ID Claims Who to Interview ▪ ▪ ▪ ▪ ▪ ▪

Family and friends Significant others Teachers and counselors Pastors and priests Employers Anyone with info about client

Hiring Experts

IQ Testing Adaptive Deficits

School Records

Take Aways ▪

IQ score is not the end-all be-all of an ID claim

▪

Investigate. Investigate again. Investigate some more

▪

Hire the experts you need and don't be afraid to hire more than one

▪

Be prepared to teach the prosecutors, the court, and the jury

▪

Have a story to tell

Insanity Defense

Not Guilty by Reason of Insanity TPC §8.01 – Insanity (M’Naghten Rule)

It is an affirmative defense to the prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, did not know that his conduct was wrong.

Not Guilty by Reason of Insanity What does "wrong" mean?

Legal vs Moral Somewhere in between?

Illegal by societal standards -- CCA

Not Guilty by Reason of Insanity 46C.153 – A person is not guilty by reason of insanity if: ▪

The State proves the underlying offense beyond a reasonable doubt AND

▪

The Defense proves by a preponderance of the evidence that the defendant was insane at the time of the commission of the offense

Investigating NGRI INTERVIEWING THE CLIENT ▪

Interview client as soon as possible

▪

What was his demeanor during the interview?

▪

Did he engage in behavior indicating knew what he was doing was wrong?

▪

Every interview should be geared towards NGRI

Investigating NGRI INTERVIEWING THE CLIENT ▪

Interview client as soon as possible

▪

What was his demeanor during the interview?

▪

Did he engage in behavior indicating knew what he was doing was wrong?

▪

Every interview should be geared towards NGRI

Investigating NGRI INTERVIEWING THE CLIENT ▪

Interview client as soon as possible

▪

What was his demeanor during the interview?

▪

Did he engage in behavior indicating knew what he was doing was wrong?

▪

Every interview should be geared towards NGRI

Investigating NGRI INTERVIEWING THE CLIENT ▪

Interview client as soon as possible

▪

What was his demeanor during the interview?

▪

Did he engage in behavior indicating knew what he was doing was wrong?

▪

Every interview should be geared towards NGRI

Investigating NGRI

RECORDS!

RECORDS!!

RECORDS!!!

Investigating NGRI Additional Records to Obtain ▪

Any and all jail records from prior cases

▪

Current jail records

▪

Police reports

▪

In-car video/audio of arrest

▪

Interrogation of defendant

▪

Personal writings

▪

Deep dive on social media

Investigating NGRI Additional Records to Obtain ▪

Any and all jail records from prior cases

▪

Current jail records

▪

Police reports

▪

In-car video/audio of arrest

▪

Interrogation of defendant

▪

Personal writings

▪

Deep dive on social media

Investigating NGRI Additional Records to Obtain ▪

Any and all jail records from prior cases

▪

Current jail records

▪

Police reports

▪

In-car video/audio of arrest

▪

Interrogation of defendant

▪

Personal writings

▪

Deep dive on social media

Investigating NGRI Additional Records to Obtain ▪

Any and all jail records from prior cases

▪

Current jail records

▪

Police reports

▪

In-car video/audio of arrest

▪

Interrogation of defendant

▪

Personal writings

▪

Deep dive on social media

Investigating NGRI INTERVIEW!

INTERVIEW!!

INTERVIEW!!!

Investigating NGRI

Interview family and friends to: â–Ş

Create timeline of mental decline

â–Ş

Stories of previous psychotic breaks

The Perfect Storm

Many factors can contribute to NGRI ▪

Mental disease or defect

▪

Brain injuries

▪

Other physical illnesses

▪

Other psych disorders

▪

The kitchen sink

Use Your Experts Psychologist/Psychiatrist – Diagnose and document mental disease or defect

Neuropsychologist – Focus on how brain injuries or mental illness affect cognitive functions and behaviors Psychopharmacologist – Review medication regimen to see if there was a deficiency in previous course of treatment Brain Imaging Experts – Brain imaging can provide the visual evidence of the diagnosis

Trauma – Any trauma-based disorder complicating matters?

Notice Requirements

Must file Notice of Intent to Raise Insanity Defense Must be filed at least 20 days prior to the start of trial Failure to file may result in exclusion of the defense

Lagrone Issues

Soria v. State, 933 SW.2d 46 The State may compel the examination of the defendant once the defendant has presented expert mental health testimony on the lack of future dangerousness.

Lagrone Issues

Soria v. State, 933 SW.2d 46

NO FIFTH AMENDMENT PROTECTIONS

Lagrone Issues Lagrone v. State, 942 SW.2d 602 The State may compel the examination of the defendant once the indicates an intent to introduce mental mitigation evidence.

Lagrone Issues Court recommended the following safeguards: ▪

Defendant should be able to consult with lawyer during exam if he desires

▪

Examiners should not speak with DA about their findings, but write a report for court

▪

Court should review the report and decide what to release

▪

Full report released at the time the defense call its expert.

Lagrone Issues Limiting the scope of the examination: Only those issues raised by the defense expert ▪ Should only include the instant offense and not priors ▪ Ask that your expert be allowed to view the exam ▪ Ask that the exam be recorded ▪

Lagrone Issues

Limiting the release of the report: No release unless AND until defense expert testifies ▪ Turn report over to the Court for review of Brady material ▪ Instruct State’s expert not to communicate contents of report ▪

Competency

Incompetency

46B.003 – What is Incompetency ▪ ▪

Rational as well as factual understanding of the proceedings against him.

Do they have sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding

Presumptions 46B.003(2) â–Ş â–Ş

All defendants are presumed competent Unless/until otherwise proven by preponderance of evidence

What to Look For When interviewing client: ▪ ▪ ▪ ▪ ▪

Paranoia about counsel or judge?

Active hallucinations?

Cognitive impairment?

Bi-polar disorder?

Anything else could impact ability to participate?

What to Look For When interviewing client: ▪ ▪ ▪ ▪ ▪

Paranoia about counsel or judge?

Active hallucinations?

Cognitive impairment?

Bi-polar disorder?

Anything else could impact ability to participate?

What to Look For When interviewing client: ▪ ▪ ▪ ▪ ▪

Paranoia about counsel or judge?

Active hallucinations?

Cognitive impairment?

Bi-polar disorder?

Anything else could impact ability to participate?

What to Look For When interviewing client: ▪ ▪ ▪ ▪ ▪

Paranoia about counsel or judge?

Active hallucinations?

Cognitive impairment?

Bi-polar disorder?

Anything else could impact ability to participate?

What to Look For When interviewing client: ▪ ▪ ▪ ▪ ▪

Paranoia about counsel or judge?

Active hallucinations?

Cognitive impairment?

Bi-polar disorder?

Anything else could impact ability to participate?

Factors to Consider Capacity of the defendant to: ▪

Rationally understand the charges against him and their possible consequences

▪

Understand the adversarial nature of the proceedings

▪

Disclose to counsel pertinent facts, events, and states of mind

▪

Engage in a reasoned choice of legal strategies, and options

▪

Exhibit appropriate courtroom behavior and able to testify

Factors to Consider Capacity of the defendant to: ▪

Rationally understand the charges against him and their possible consequences

▪

Understand the adversarial nature of the proceedings

▪

Disclose to counsel pertinent facts, events, and states of mind

▪

Engage in a reasoned choice of legal strategies, and options

▪

Exhibit appropriate courtroom behavior and able to testify

Factors to Consider Capacity of the defendant to: ▪

Rationally understand the charges against him and their possible consequences

▪

Understand the adversarial nature of the proceedings

▪

Disclose to counsel pertinent facts, events, and states of mind

▪

Engage in a reasoned choice of legal strategies, and options

▪

Exhibit appropriate courtroom behavior and able to testify

Factors to Consider Capacity of the defendant to: ▪

Rationally understand the charges against him and their possible consequences

▪

Understand the adversarial nature of the proceedings

▪

Disclose to counsel pertinent facts, events, and states of mind

▪

Engage in a reasoned choice of legal strategies, and options

▪

Exhibit appropriate courtroom behavior and able to testify

Factors to Consider Is the defendant: â–Ş

A person with mental illness or an intellectual disability?

â–Ş

Does the impairment impact his ability to engage with counsel?

â–Ş

Is the defendant taking any meds?

Factors to Consider Comorbidity â–Ş

Personality disorders and mental illness

â–Ş

Intellectually disabled and mental illness

â–Ş

Brain injuries? Other disorders?

Your Experts

INVESTIGATE RECORDS INTERVIEW

The Reports Make sure they are on point and stick to competence ▪

Don’t allow exam to seep into Future Danger or NGRI

▪

Object to portions of any report that exceeds the scope

None of the Above

Wrong Side of Borderline

MITIGATION!

MITIGATION!!

MITIGATION!!!

Wrong Side of Borderline

Settlement Conferences Problems at Trial Frontload Mitigation during G/I

Wrong Side of Borderline

Settlement Conferences Problems at Trial Frontload Mitigation during G/I

Wrong Side of Borderline

Settlement Conferences Problems at Trial Frontload Mitigation during G/I

Wrong Side of Borderline

Settlement Conferences Problems at Trial Frontload Mitigation during G/I

Wrong Side of Borderline

WAIVERS SAVE LIVES

Thank You!!

Susan E. Anderson

sanderson@rpdo.org (214) 649-4090

Intellectual Disability, Insanity Defense, Incompetency

Susan E. Anderson February 5, 2021

Intellectual Disability - Why do we investigate these claims? Why is it important? o Atkins v. Virginia, 536 US 304 (2002) ▪ Execution of anyone who is ID is “cruel and unusual punishment” ▪ Intellectual deficits left them with diminished capacity to: • Understand and process information • Communicate • Learn from experience • Reason logically • Control impulses • Understand the reactions of others ▪ “Because of their disabilities in the area of reasoning, judgment, and control of their impulses… they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct ▪ Their impairments can jeopardize the reliability and fairness of capital proceedings o Moore v. Texas, 137 S.Ct. 1039 (2017) ▪ Specifically rejected the Briseno factors • They are an invention of the Texas Court of Criminal Appeals • Not tied to any acknowledged source ▪ State courts must be guided by the medical community’s diagnostic framework. o Moore v. Texas, 139 S.Ct. 666 (2019) ▪ Texas Court of Criminal Appeals assessment was not grounded in prevailing medical practice ▪ They invited “lay perceptions of intellectual disability” and “lay stereotypes” to guide their assessment.

- What is ID? Defined by 46B.001 – Significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period o Prong 1: Below Average IQ ▪ IQ substantially below average • 2 standard deviations below mean of 100 • Usually falls around 70 (+/- 5) or lower ▪ IQ Testing o Prong 2: Adaptive Behavior ▪ Deficits in adaptive functioning • DSM-5 One of three domains • Strengths are NOT considered when assessing adaptive functioning for diagnosis ▪ What is adaptive behavior?

• Definitions o The collection of conceptual, social, and practical skills that are learned and performed by people in their

•

•

everyday lives – AAIDD (American Assn on Intellectual and Developmental Disabilities o 46B.001(1) – The effectiveness with or degree to which a person meets the standards of personal independence and social responsibility expected of the person’s age and cultural group Conceptual skills o Language and literacy o Money, time, and number concepts o Self-direction Social skills – peer relationships, adult relationships, and evidence of any exploitation. o Interpersonal skills ▪ Peer relationships – Does he hang with the younger kids or kids his own age?

▪ Adult relationships – Dating and typical adolescent interests ▪ Slow to pick up on social cues o Social responsibility ▪ Understands what is expected of him in class ▪ Appropriate behavior with friends and neighbors ▪ Self-sustaining or does he need help from others?

▪ Can he stay on task or does he need constant nagging? o Self-esteem ▪ Socially isolated at school?

▪ Fear of rejection ▪ Poor school performance can affect self-esteem ▪ Support system? o Gullibility, Naivete and Wariness ▪ Is he often the butt of jokes?

▪ Follower not a leader?

▪ Exercises poor judgement?

▪ Tricked out money?

▪ Bullied? o Social problem solving ▪ Failure to anticipate consequences of actions?

▪ Poor behavior in school?

▪ Poor insight into own behavior and behavior of others o Ability to follow rules/obey laws and to avoid being victimized

Is inability to follow rules volitional or due to lack of understanding?

▪ Sexual abuse?

• Practical skills o Activities of daily living (personal care) ▪ Developmental milestones met?

▪ Cooking and cleaning ▪ Dressing independently o Occupational skills o Travel/transportation o Schedules/routines o Safety o Use of money o Use of telephone ▪ Standardized tests can also determine limitations in adaptive behavior ▪ Determining whether or not there is a deficit is more subjective than determining intelligence o Prong 3: Age of Onset ▪ During developmental period ▪ Some disagreement as to age of onset • DSM-IV-TR: Before the age of 18 • DSM-5: No cutoff age • AAIDD – 22 years old • 46B.001 – The period of life from birth through 17 yeas of age ▪ Atkins court never adopted the 18 years old criterion and left it to the states to define MR o Other considerations ▪ Community environment typical of their peers and culture ▪ Linguistic diversity ▪ Cultural differences in how people communicate, move, and behave Investigation o Records Records Records ▪ IQ testing • Get the raw data • What test was used and when? Are they currently obsolete?

Were they obsolete at the time?

• Is it really an IQ test?

• How were the tests administered? -- Group or individual setting?

• Investigate the examiner as well as anyone who interpreted the tests ▪ School records • Special Education classes? Evaluations?

• Accommodations given?

▪

-

• • • •

-

IQ Tests?

Aptitude tests?

Teachers’ comments Graduate? GED? – Often cannot meet graduation requirements but not uncommon to obtain a GED ▪ Employment records • What kind of job was it? – Vocational skills and work habits can be learned behavior • Repetitive in nature?

• What skills are involved?

• Disciplinary actions?

• Copies of his application – Did anyone have to help him fill it out?

▪ Medical records • Prenatal records of the mother – Did she engage in risky behavior?

• Poor nutrition • No consistent medical care ▪ Child Protective Services • Neglect and inadequate parenting resources • Severe physical or emotional abuse • No stable home life and poor adult role models • Poverty ▪ Social Security Disability – Be sure to ask for both client and their immediate family’s records ▪ Social Security records for earnings ▪ Military ▪ Jails and prisons o Interviews ▪ Family and friends ▪ Significant others ▪ Teachers and counselors ▪ Pastors and priests ▪ Employers Other issues o “He doesn’t ‘look’ ID” ▪ The majority of folks who are ID register in the “mild” range ▪ Even “mild ID is still ID o Has a practical skill-set ▪ Most of these skills are behaviors learned through repetition.

▪ Must get to the meat of the skills he claims to have • Requires a deep dive • “I pay rent” – “How do you pay it? Check or cash?” “Do you have a bank account?” “Where?” “Who opened it?”

What happens when schedules change and how does he adapt to that change? o Other skills to look for outside of those mentioned above ▪ How do you look up a phone number you do not know?

▪ Google? Read a map? o Comorbidity ▪ There is an increased risk of comorbidity psychiatric disorders and ID. ▪ As many as 40% of those who are ID also present with diagnosable psychiatric disorder ▪ The presence of pscyh disorder does NOT rule out ID - Take Aways o IQ is not the end-all be-all of an ID claim. Can win with a high one and lose with a low one. o Investigate. Investigate again, then investigate some more. o Hire the expert with the best fit for your case and don’t be afraid to use more than one.

▪ Attacking or supporting the IQ test ▪ Establishing adaptive functioning weaknesses ▪ Reviewing school records o Be prepared to teach the court and the jury.

▪ Have a story to tell ▪ More impactful to have the personal touch that corroborates the clinical Insanity Defense - 46C.153 – A person is not guilty by reason of insanity if: o The State proves the underlying offense beyond a reasonable doubt AND o The Defense proves by a preponderance of the evidence that the defendant was insane at the time of the commission of the offense o To overcome the affirmative defense, the State must prove beyond a reasonable doubt that the defendant was NOT insane at the time of the commission of the offense.

- TPC §8.01 – Insanity (M’Naghten Rule) o It is an affirmative defense to the prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, did not know that his conduct was wrong. o What does “wrong” mean?

▪ Legally wrong vs morally wrong?

• Legally wrong presupposes a knowledge of the legal system and all possible defenses that may go with that • Morally wrong fails to take into consideration any possible justifications • Closest definition – Illegal by societal standards ▪ The place in between • Know it is legally and morally wrong, but it is the only option ▪

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Killing your children because you believe them to be possessed and it is the only way to save their immortal souls

Investigation o Interview client as soon as possible ▪ Immediately following the offense, did he engage in behavior that indicated he knew what he was doing was wrong?

• Try to hide evidence?

• Conceal his identity?

• Flee for the police or the scene?

▪ What was his demeanor during the interview?

• Actively hallucinating?

• Manic?

• Eye-contact?

• Loose associations?

▪ Every subsequent interview should be done with eye towards raising the defense o Records – See list in Intellectual Disability Section ▪ Prior criminal history • All jail records – observation logs • Any prior evals in jail?

▪ Police reports • Any comments as to his demeanor • Defendant’s statement, especially if it is audio/videotaped • In car audio/video of the arrest ▪ Current jail records • Videos from sallyport when brought in • Observation logs ▪ Personal writings (diaries, letters, etc) ▪ Social media deep dive o Interview friends and family ▪ Create timeline of mental decline and leading up to the offense ▪ Stories of previous psychotic breaks The Perfect Storm o Don’t rely solely on mental health diagnosis o Many factors can contribute ▪ Mental disease or defect (schizophrenia, bi-polar, etc) ▪ Brain injuries or other physical illness ▪ Other disorders (PTSD, ASPD, etc) ▪ The kitchen sink Experts are the key o Psychologist/Psychiatrist – Able to diagnose and document mental disease or defect o Neuropsychologist – Focus on how brain injuries or mental illness affect cognitive functions and behaviors

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o Psychopharmacologist – Review medication regimen to determine if there was a deficiency in previous course of treatment o Brain Imaging Experts – Brain imaging can provide the visual evidence of the diagnosis o Trauma – Some disorders are based in trauma and those need to be fleshed out Notice of Intent and Lagrone o 46C.051 – Notice of Intent to Raise Insanity Defense o Must file your Notice of Intent at least 20 days before the case is set for trial o Failure to file may result in the judge excluding testimony o Lagrone – mitigation based case ▪ State will assuredly file a Lagrone motion seeking their own psych to examine the defendant ▪ No 5th Amdt privilege during the examination ▪ If fails to comply, the defense may be denied o In a footnote, the Lagrone court recommended the following protections ▪ During the examination, the defendant should be able to consult with counsel who may be present in an adjoining room.

▪ Mental health professionals should not relate specific statements from the interview to the prosecutors but should reduce their findings to a report delivered directly to the court.

▪ The court should review the findings and decide whether to release only the ultimate conclusions and Brady evidence.

▪ The full report should be released at the time the defense calls its expert. o Fighting Lagrone ▪ Limiting the State’s expert • The scope of the exam should be limited to the issues raised by the defense expert • Scope of the exam should be limited to the instant offense • Ask for your expert to be allowed to view the testing • Ask that the examination be recorded ▪ Limiting access to report pretrial • Rebuttal only, therefore the report should not be unsealed unless and until it becomes an issue at trial.

• Turn report over to judge and have him review for Brady material • State’s expert should not communicate results prior to release of the report

Competency Issues - Relates to one’s mental state and abilities at a particular point in time - Need not be ID nor insane to be incompetent o Cross-pollination occurs o Many symptoms and diagnoses may overlap

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46B.003(2) – Presumption of Competence o All defendants are presumed competent o Unless/until proven otherwise by a preponderance of the evidence Things to look for when interviewing client o Paranoia about counsel or the judge ▪ May inhibit rapport building with client ▪ Client will not trust the fairness of the court proceeding o Active hallucinations during interviews ▪ May impact ability to focus during trial ▪ May cause outburst during trial o Cognitive impairment – may overlap with ID issues o Bi-polar disorder ▪ Depression may impact self-preservation ▪ Mania affects ability to concentrate o Anything else that could impact ability to participate in case during the investigation and/or trial on the merits 46B.004 – Raising the Issue o May be raised by either party at any time o Court may raise the issue sua sponte 46B.005 – What happens next? o The court SHALL order an examination to determine competence o The court SHALL hold a trial to determine competence 46B.003 - Incompetency o Rational as well as factual understanding of the proceedings against him ▪ Typical areas of concern • Who is the judge? Who are your lawyers? Who are the prosecutors?

• What are you charged with? Why are you being held?

▪ Much of this can be taught and/or learned ▪ One place with ID may overlap o Do they have sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding?

46B.024 – Factors Considered o Capacity of the defendant to: ▪ Rationally understand the charges against him the potential consequences ▪ Disclose to counsel pertinent facts, events, and states of mind ▪ Engage in a reasoned choice of legal strategies and options ▪ Understand the adversarial nature of the proceedings ▪ Exhibit appropriate courtroom behavior and ability to testify o Is the defendant: ▪ A person with mental illness or an intellectual disability ▪ DON’T NEED A DIAGNOSIS o The degree of the impairment and its impact on the defendant’s capacity to engage with counsel in a reasonable and rational manner

o If the defendant is taking any meds ▪ Are they necessary to maintain his competency?

▪ Do they affect his appearance, demeanor, or ability to participate in the proceedings? o The problem with comorbidity ▪ Personality disorders often accompany mental illness diagnoses ▪ Intellectually disabled defendant may also have mental illness ▪ Other factors – brain injuries, other disorders such as PTSD - The Reports o Make sure they are on point and stick to competence ▪ May try to argue Future Danger or negate NGRI ▪ Object to those portions not related to competence o If the report goes beyond the scope…

▪ Pull the consent form to see if proper consent was obtained.

- 46B.051 – Judge or Jury o If you want a jury trial, you must affirmatively ask for one ▪ May be requested by either party ▪ If none requested, it defaults to the judge o Strategy decisions – judge vs jury - Miscellaneous provisions o Statements made by a defendant during the examination and/or trial cannot be admitted against the defendant unless: ▪ For use at the competency trial ▪ The defendant opens the door at subsequent proceeding.

None of the Above - What happens when your client falls on the wrong side of the borderline?

- MITIGATION! MITIGATION! MITIGATION! o Settlement conferences ▪ Mitigation package with relevant information ▪ Even if you are on the wrong side, you might still get a waiver o Competency ▪ Won’t be a jury issue at trial, but can still be an issue at trial ▪ If your client is volatile with waxing and waning competence, use that o Insanity Defense ▪ Great way to frontload mitigation ▪ Get to tell the story right off the bat Resources - American Association on Intellectual and Developmental Disabilities – aaidd.org - APA DSM-5 - US Dept of Education Study: The Post-High School Outcomes of Youth with Disabilities up to Four Years after High School.

Texas Criminal Defense Lawyers Association

Capital Seminar February 5, 2021 Livestream

Topic: The Impact of Implicit Gender Bias Speaker:

Juandalynn Taylor

Po Box 681389 San Antonio, TX 78268 (210) 896-8582 Phone (800) 635-5169 Fax jt@advocacypros.com www.advocacypros.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

The Impact of Implicit Gender Bias Presented by:

Juandalynn Taylor Ph.D., J.D. Mitigation Specialist Social Scientist Cultural Studies Expert TCDLA Capital Seminar Feb 5, 2021

Milestones for women in the legal field (Oct 2019) •3 S.Ct justices, •75 Sitting female judges on federal courts of appeals, •286 Sitting female judges on federal district courts, •6,056 sitting state judges, and •More women in law schools & •Operating in various capacities across a spectrum of positions within the legal community than ever before.

Hooray!

Today's Objectives I. What is implicit bias.

II. How gender bias shows up in the defense world.

A. What is gender bias & its significance to you!

B. Specific examples of gendering in the defense world • Job Descriptions • Mitigation Specialists • Client Representation III. What can we do that matters right now?

Implicit Bias Implicit bias -refers to attitudes or stereotypes that are outside of a person’s awareness or control. These biases have “seeped” into automatically and can be both favorable an unfavorable assessments (something or someone is good or bad) despite of a person’s true values.

Implicit Bias vs. Explicit Bias Explicit bias -occurs when an individual consciously accepts an implicit attitude or bias as truth and/or (this key) explicitly acts on the unconscious thoughts on a consistent basis.

Doesn’t matter if it isn't intentional—explicit is explicit! This means the threshold for implicit and explicit extends beyond an individual’s thoughts and directs our attention to outcomes.

GENDERING It's not sexual harassment.

It is: • The narrative used to organize work, persons, tasks, institutions, relations, systems, and etc. into gender perspectives—the masculine and feminine. (ex: women's work).

•

A way of organizing power relationships along perceived gender differences.

• Notably: Gendering offenses have among every gender.

• That’s where implicit bias comes in.

•Every company in a capitalist system uses them.

•It presents the gendered logic, practices, and values with a price tag attached.

•Every time an announcement is placed in public, it constructs & reinforces a particular ideology.

•It’s how your performance will be evaluated/or if you’re called again.

•It’s an initial opportunity to segregate genders by differences.

Gendering in Job Descriptions It’s an initial opportunity to segregate genders by differences.

Attracted men & historically prevented women from applying

Tend to keep men from applying for a position

•Ninja •Dominate •Competitive •Confident •Determined •Decisive •Outspoken •Strong •Hacker •Rockstar •Leader

•Supportive •Collaborative •Committed •Nurturing •Cooperative •Honest •Interdependent •Loyal •Understanding •Interpersonal

88% of all legal jobs posted with ZipRecruiter from all over the country used gendered wording in their descriptions.

*Low is still in the mid 80% of ads

MITIGATION SPECIALIST Position Announcements 2015 to 2020

Assist the attorneys with…

• It appears as the first or nearly the first word of the first sentence of each position announcement.

• It is synonymous with gendered descriptors such as, supportive & collaborative.

• It controls order/a power patriarchy, communication, agendas & emotions through domination ahead of time.

ABA Guidelines/Supplementals 4.1 The Role of The Mitigation Specialist 10.4 The Role of Counsel With Respect to The Mitigation Specialist 10.11 The Defense Case: Requisite Mitigation Functions of the Defense Team

The word “assist” only appears once in 4.1 & it pertains to recording keeping. …that may assist successor counsel in documenting attempts to comply with these Guidelines.

MITIGATION SPECIALIST Position Announcements 2015 to 2020

Relationship building & maintenance • It is synonymous with gendered descriptors like caretaker, interpersonal skills, and others descriptors that are devalued versus other skills.

• It can reshape client relationships into hunts for pathologies and problems, rather than reasons for the least restrictive sentences.

• Hmm, it doesn’t appear in other descriptions (attorneys or investigators...I checked!)

More examples of gendering in the defense world Problem Act

Im/Explicit Bias

In Work Product

Inequity Reinforced

Medical & dated narratives of women

Moms are caretakers Not fathers.

Villianizes women based on stereotypical roles.

Men escape this criticism.

Patriarchy

Associate siblings & births by mother

Describe mothers through sexuality.

Siblings have different fathers or biological siblings. Language mostly used in describing mothers.

(Also medical).

Poor family & sexual values

Accept casual or easy language

Don't question ways it reinforces stereotypes our own bias, or the stereotypes fact finders or judges may hold.

Narrative language ex: “Baby's mamas” “Gangs”

Dominate ideologies & negative narratives

What can we do now that matters?

1. Take the Implicit Association Test (IAT) Harvard professors.

2. Demand better and broader CLE’s & training.

3. Give women (and others) space in your organizations, as well as voice.

4. Be an advocate by identifying and assisting others with avoiding implicit gender biased language and tapping into those structures that reproduce them.

5. Seek out allies.

6. You be YOU!

Texas Criminal Defense Lawyers Association

Capital Seminar February 5, 2021 Livestream

Topic: Capital Jury Selection Strategy and Execution Speaker:

Mandy Miller

2910 Commercial Center Blvd # 103-201 Katy, TX 77494-6583 (832) 900-9884 mandy@mandymillerlegal.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Where did my Motion for New Trial Go? Texas Criminal Defense Lawyers Association Capital Trial Seminar November 20, 2020 Once your client is convicted, obtaining relief on the post-conviction level is an uphill battle. And the odds of obtaining relief through a motion for new trial are certainly stacked against us. In this presentation, I outline what responsibilities fall on the trial attorney and which fall on the appellate attorney when it comes to investigating and filing a motion for new trial. I also will lay out what I believe is necessary for a successful motion. At the end of the paper, you will find examples of some of the documents that I mention in the presentation. I hope that when trial attorneys and appellate attorneys work together, we can increase our clients’ chances of winning motions for new trial.

The Trial Attorney’s Responsibilities Trial is long, hard, and exhausting. By the end, the trial attorney is ready for a well-deserved break. But before you take off, there are a few things that you must do to make sure that your client’s rights are protected and to protect yourself from a potential ineffective assistance of counsel claim in the future.

1. Notice of Appeal First, file a notice of appeal. If your client has just been sentenced to death, appeal is automatic, and the clerk should take care of the notice. TEX. R. APP. PRO. 25.2(b). However, I advise you double check on this, especially if you are in a county that has not recently tried a capital case where death was imposed.

In all cases, notice of appeal must be filed within 30 days of the sentence being imposed or suspended in open court. TEX. R. APP. PRO. 26.2(a)(1). If a timely motion for new trial is filed, the notice of appeal must be filed within 90 days of the sentence being imposed or suspended in open court (**note, this is NOT 90 days from the filing of the motion for new trial, but 90 days from sentencing). TEX. R. APP. PRO. 26.2(a)(2).

I advise all trial attorneys prepare a notice of appeal prior to sentencing so that it can be filed immediately after sentencing. The notice of appeal must be written and express a desire to appeal the judgment or order. TEX. R. APP. PRO. 26.2(c)(1), (2). This requirement is not satisfied where the clerk of the trial court reduces the defendant’s oral notice of appeal to writing. Hammond v. State, 746 S.W.2d 278, 279 (Tex. App.-

Houston [14th Dist.] 1988, pet. ref’d). The notice should also include the name of your client, the court, and be signed by either the client, the trial attorney, or both. If the initial notice of appeal is defective, it may be amended any time before the appellant's brief is filed. Bayless v. State, 91 S.W.3d 801 (Tex. Crim. App. 2002).

You must file the notice of appeal with the trial court clerk, not the appellate court. But if you mistakenly file the notice in the wrong place, the appellate clerk will note when the notice was filed and forward it to the trial court clerk. TEX. R. APP. PRO. 26.2(c)(1) 2. Motion to Withdraw Next, file a motion to withdraw from the case, reassert your client’s indigence, and request that appellate counsel be appointed. Under the Sixth Amendment, an indigent defendant is entitled to appointed counsel at every “critical” stage of a criminal prosecution absent a valid waiver. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In 1978, the Texas Court of Criminal Appeals held that a hearing on a motion for new trial is a critical stage of the proceedings at which a defendant is entitled to counsel. Trevino v. State, 565 S.W.2d 938 (Tex. Crim. App. 1978). It wasn’t until 2007 that the Court of Criminal Appeals acknowledged that the time for filing a motion for new trial was also a critical stage during which a defendant is constitutionally entitled to the effective assistance of counsel in filing a motion for new trial. Cooks v.

State, 240 S.W.3d 906 (Tex. Crim. App. 2007).

What does this mean for the trial attorney? If you fail to withdraw from the case, you will be considered the attorney during the critical time for investigating and filing the motion for new trial. If you either do not investigate the possibility of filing a motion for new trial, or advise the client of his/her right to investigate and file a motion for new trial and he/she declines, you may be found ineffective.

How can the trial attorney help with a motion for new trial?

Have appellate counsel appointed pretrial Take good notes during the trial that keep track of appellate issues, off the record occurrences, and any conversations with jurors.

Have your file ready. If possible, keep it in electronic form. This prevents you from having to copy it and makes it easier to transfer it to the appellate attorney.

Keep a copy of the jury charge and objections to the charge. Also, retain any information you may have on the venire.

Perfect the appeal and withdraw Motions for New Trial The trial court can grant a motion for new trial on guilt, punishment, or both.

TEX. R. APP. PRO. 21.1. A motion for new trial is not generally required to preserve error on appeal. However, a motion for new trial is a prerequisite to presenting a point of error on appeal only when necessary to adduce facts not in the record. TEX. R. APP. PRO. 21.2.

The defendant must be granted a new trial, or a new trial on punishment, for any of the following reasons: Except in a misdemeanor case in which the maximum possible punishment is a fine when the defendant has been unlawfully tried in absentia or has been denied counsel.

When the court has misdirected the jury about the law or has committed some other material error likely to injure the defendant's rights.

When the verdict has been decided by lot or in any manner other than a fair expression of the jurors’ opinion.

When a juror has been bribed to convict or has been guilty of any other corrupt conduct.

When a material defense witness has been kept from court by force, threats, or fraud, or when evidence tending to establish the defendant's innocence has been intentionally destroyed or withheld, thus preventing its production at trial.

When, after retiring to deliberate, the jury has received other evidence; when a juror has talked with anyone about the case; or when a juror became so intoxicated that his or her vote was probably influenced as a result.

When the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial; or When the verdict is contrary to the law and the evidence.

TEX. R. APP. PRO. 21.3

A motion for new trial must be filed 30 days after sentence is imposed or suspended in open court. TEX. R. APP. PRO. 21.4(a). The motion must be sworn to by someone with personal knowledge of the facts in the motion. Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993). If affidavits are not attached, the trial court does not abuse its discretion in denying a hearing on the motion.

The Texas Rules of Appellate Procedure require that the motion be presented to the trial court within 10 days of filing unless the trial court permits it to be presented and heard within 75 days from the time sentence was imposed or suspended in open court. “Presented” means that the motion is brought to the trial court’s attention so that it may be reviewed and be set for a hearing, if necessary. Carranza v. State, 960 S.W.2d 76 (Tex. Crim. App. 1998). Include a presentment page in your motion for new trial and have it signed by the judge. You can then efile this page and you are covered.

Appellate Attorney’s Responsibilities Visit the client as soon as possible and remember to bring an array of releases.

These include a release for the trial attorney to give you the file, and any releases so that you can obtain your client’s records.

File a motion for funding for an investigator. 30 days is not enough time to properly investigate and file a motion for new trial. You will find it much easier if you get the help you need immediately.

In certain cases, file a motion to release the juror information or for the District Attorney to turn over Brady evidence.

Finally, contact the defense team and the court staff. This includes the trial attorney, investigator, mitigation specialist, and bailiffs. They have a wealth of information that could help you streamline your investigation.

Drafting your Motion for New Trial The motion must allege facts outside of the record. It is an abuse of discretion for the trial court to deny the defendant a hearing on his motion for new trial when the motion raises matters that cannot be determined from the record. Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993).

Beware of the “interest of justice.” A judge may grant or deny a motion for new trial “in the interest of justice,” but justice means in accordance with the law. A judge may not grant a new trial on mere sympathy, an inarticulate hunch, or simply because

he believes the defendant received a raw deal or is innocent. State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007) Support allegations with an affidavit by someone with personal knowledge.

The hearing on your motion for new trial Always request a hearing on your motion for new trial. How that hearing looks will largely depend on your strategy. The court may receive evidence by affidavit or otherwise. TEX. R. APP. PRO. 21.7. But the motion for new trial is not self-proving, so you must enter affidavits into evidence so that the appellate court can properly consider your motion. Schneider v. State, 594 S.W.2d 415, 418 (Tex. Crim. App. 1989). If you have raised an ineffective assistance of counsel claim and trial counsel has provided you with a favorable affidavit, you may determine it is not in the client’s best interest to have the trial attorney testify. In other instances, your claims may benefit from being able to cross-examine witnesses. No matter what you decide, make sure the affidavits attached to your motion are entered into evidence on the record.

The burden of proof at the hearing is on the defendant. Lera v. State, 165 S.W.2d 92, 93 (Tex. Crim. App. 1942).

The ruling on your motion for new trial The court must rule on a motion for new trial, by written order, within 75 days after imposing or suspending sentence in open court. TEX. R. APP. PRO. 21.8(a). A motion not timely ruled on by written order will be overruled by operation of law after the 75 days. TEX. R. APP. PRO. 21.8(c) In ruling on a motion for new trial, the court may make oral or written findings of fact. The granting of a motion for new trial must be accomplished by written order.

A docket entry does not constitute a written order. TEX. R. APP. PRO. 21.8(b).

Make sure all of your legal grounds for granting the motion for new trial are included in your pleading and filed within 30 days of sentencing. Grounds alleged only in a legal memorandum filed 30 days after sentencing but not alleged in the motion for new trial may not be the basis for the granting of relief. State v. Zalman, 400 S.W. 3d 590 (Tex. Crim. App. 2013).

The 75-day time limit for filing motion for new trial does not impose any time limit for the trial court to rescind a previous order granting a new trial, and thus trial court could rescind its order granting a new trial over 75 days after imposing or

suspending the defendant’s sentence. Kirk v. State, 454 S.W.3d 511 (Tex. Crim. App. 2015).

The premature filing of the appellate record in the court of appeals will not divest the trial court of jurisdiction to hear a motion for new trial that is timely filed and presented. Taylor v. State, 163 S.W.3d 277 (Tex. App.--Austin 2005, pet. ref’d).

CAUSE NO. _____________ THE STATE OF TEXAS V. JOHN SMITH

ยง IN THE _____TH DISTRICT COURT ยง ยง OF ยง ยง CONVICTING COUNTY, TEXAS

NOTICE OF APPEAL TO THE HONORABLE JUDGE OF SAID COURT: Today, _______________, John Smith gives Notice of Appeal of his conviction and sentence issued on _______________________.

Respectfully submitted,

__________________________ Attorney SBOT Address Phone Number Fax Number Email ______________________ Client Signature

______________________ Client printed name

1

2

CAUSE NO. _____________ THE STATE OF TEXAS V. JOHN SMITH

§ IN THE _____TH DISTRICT COURT § § OF § § CONVICTING COUNTY, TEXAS

MOTION TO WITHDRAW The defendant, __________________, pled not guilty in the above numbered and styled cause and proceeded to a trial by jury. The jury rendered a verdict of guilt on _____________. Sentence was imposed in open court on ______________.

Undersigned counsel’s representation has ceased and she requests that she be permitted to withdraw as the defendant’s attorney of record. Counsel also requests that the defendant, if indigent, be appointed counsel to represent him on appeal.

Respectfully submitted,

__________________________ Attorney SBOT Address Phone Number Fax Number Email

ORDER This Court GRANTS counsel’s motion and orders that _________________ be removed as attorney of record for the defendant in the above numbered and styled cause.

______________________________ PRESIDING JUDGE ___TH DISTRICT COURT CONVICTING COUNTY, TEXAS

CAUSE NO. _____________ THE STATE OF TEXAS V. JOHN SMITH

§ IN THE _____TH DISTRICT COURT § § OF § § CONVICTING COUNTY, TEXAS

PAUPER’S OATH ON APPEAL Now comes, John Smith, defendant in the above styled and numbered cause, and states under oath that he is without funds, property or income. The defendant petitions the court for appointed appellate counsel to represent him and that a free record be provide to him for purposes of appeal.

______________________________ John Smith SUBSCRIBED AND SWORN to before me, this ____ day of ____________, 20__.

______________________________ DEPUTY DISTRICT CLERK ___TH DISTRICT COURT CONVICTING COUNTY, TEXAS

ORDER On _________________ the court conducted a hearing and found the defendant is indigent. The court ORDERS that ________________________ is appointed to represent the defendant on appeal. The court reporter is ORDERED to prepare and file the reporter’s record without charge to the defendant.

It is further ordered that the clerk of this court mail a copy of the order to the court reporter, _______________________, by certified mail, return receipt requested.

______________________________ PRESIDING JUDGE ___TH DISTRICT COURT CONVICTING COUNTY, TEXAS

AUTHORIZATION FOR RELEASE OF LEGAL FILES __________________ __________________ __________________ You are hereby authorized to release any and all documents, including but not limited to pleadings, correspondence, notes, medical records and reports, investigative reports, and all other information written or otherwise recorded, contained in the file of (or relating to my legal case involving) __________________ (Cause No. _____________), to ____________________________, or to any representative, attorney or investigator from said firm. In addition to the case files and any investigation regarding the above cases, I specifically authorize the release to said individuals of information pertaining to confidential attorney-client communications, medical treatment, drug and alcohol abuse and related treatment, and psychological and psychiatric treatment, if such are a part of your records. In addition, I authorize _________________ or any representative, expert, or investigator associated with __________________ to communicate with ____________________ regarding the investigation and trial in cause no. __________________.

THIS AUTHORIZATION HEREBY REVOKES ANY AND ALL PRIOR AUTHORIZATIONS TO RELEASE INFORMATION CONCERNING ME, EXCEPT AUTHORIZATIONS PROVIDED BY LAW. YOU ARE REQUESTED TO DISCLOSE NO INFORMATION TO ANYONE ELSE WITHOUT MY PRIOR WRITTEN AUTHORIZATION. DATED this ____ day of ________________, 20__. _____________________________ Client Signature

_____________________________ Client Name (Printed)

AUTHORIZATION FOR RELEASE OF CONFIDENTIAL INFORMATION AND RECORD IN COMPLIANCE WITH THE HEALTH INSURNAC PORTABILITY AND ACCOUNTABILITY ACT OF 1996, 42 U.S.C. 1320d AND 45 C.F.R. 160-164 I, _________________________, by this release or a facsimilie thereof, authorize and request the following entity: __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ to release to _______________, and her designated representatives, all protected information, from the following period(s): ________________ for the purpose of review and evaluation in connection with a legal case. You are specifically authorized to photocopy these records and to release copies to this office or its representatives. I expressly request that the designated record custodian of all covered entities under HIPPA identified above disclose full and complete protected information including the following: • All medical records, meaning every page in my record, including but not limited to, office notes, face sheets, history and physical, consultation notes, inpatient, outpatient, and emergency treatment, all clinical charts, reports, order sheets, progress notes, nurse’s notes, social worker records, clinic records, treatment plans, admission records, discharge summaries, request for and reports of consultations, documents, correspondence, test results, statements questionnaires/histories, photographs, videotapes, telephone messages, and records received by other medical providers. All autopsy, laboratory, histology, cytology, pathology, immunohistochemistry records and specimens; radiology records and films including CT scan, MIR, MRA, EMG, bone scan, myleogram; nerve conduction study, echocardiogram and cardiac catheterization results, videos/CD’s/films/reels and reports. All pharmacy/prescription records including NDC numbers and drug information handouts and monographs. All billing records including all statements, insurance claim forms, itemized bills, and records of billing to third party payers and payment or denial of benefits.

• All mental health records, including but not limited to, counseling, testing and evaluation, raw data, rest scores, psychological, psychiatric, group therapy, nurse notes, physician notes, progress reports, ward notes, admission and discharge summaries, drug and alcohol rehabilitation programs, social worker records, request for and reports of consultations, documents, correspondence, questionnaires, histories, videotapes, and records received by other mental health providers. • All disability, Medicaid or Medicare records including claim forms and record of denial of benefits.

In consideration of this disclosure of otherwise confidential information, I hereby release you (in your individuals and/or institutional capacity) from any and all liability arising from such disclosure to these designated parties. I understand the information to be released or disclosed may include information relating to sexually transmitted diseases, acquired immunodeficiency syndrome (AIDS), or human immunodeficiency virus (HIV), and alcohol and drug abuse. I authorized the release or disclosure of this type of information. This authorization is given in compliance with the federal consent requirements for release of alcohol or substance abuse records of 42 CFR 2.31, the restrictions of which have been specifically considered and expressly waived.

You are authorized to release the above records to the following office and its representatives: Law Firm, PLLC 123 Main Street City, TX 00000 (P) 000-000-0000, (F) 000-000-0000

I understand the following: that I have a right to revoke this authorization in writing at any time, except to the extent information has been released in reliance upon this authorization and that the information released in response to this authorization may be re-disclosed to other parties. I also understand that treatment, payment, enrollment or eligibility for benefits may not be conditioned on obtaining the authorization if such conditioning is prohibited by law, or if conditioning is provided by law, a statement that the patient understands the consequences of refusing to sign.

Additionally, I authorize any representative or employee, past or present, from the above named facility to speak with any representative of the above referenced office, about any of my records, or any other personal recollections, opinions, or insights they have about me or my history. Any facsimile, copy or photocopy of this authorization shall authorize you to release the records requested herein. This authorization shall be in force and effect until two years from the date of execution.

Name:

_________________________

DOB:

_________________________

SSN:

__________________________

Date:

__________________________

I, ________________ (TDCJ #_____________, DOB ______________), being presently incarcerated in the _______________________, in _________________ County, Texas, declare under penalty of perjury that the foregoing is true and correct.

Executed on this _______ day of, _________________, 20__.

______________________________ Signature

CONSENT TO RELEASE STUDENT RECORDS UNDER THE FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (20 U.S.C § 1232(g) __________________________ Student Name (Please Print)

_____________________________ Student I.D. Number or SSN

In accordance with the Family Educational Rights and Privacy Act of 1974 (FERPA), the undersigned student hereby permits ____________________________ ____________________________ ____________________________ to disclose the information specified below to the following office and its representatives: • Law Firm, PLLC • 123 Main Street • City, TX 00000 • (P) 000-000-0000, (F) 000-000-0000 • All Financial Aid Records (records include: status of file, award and disbursement of funds information, • Satisfactory Academic Progress status, income information, and any other information contained in the application or financial aid file).

• All Academic/Transcript Records (records include: transcripts, admission and registration information, schedule documentation contained in the academic records).

• All Student Account Records (records include: amount for tuition and fees, sources of payment for tuition and fees, refund information, records hold information as it relates to parking tickets, library fines, financial aid repayments and any other accounts receivable information contained in student account records.

• Instructor/Classroom Records (records include: attendance, progress reports, test and homework scores if available. Please note: instructors are not required to take attendance or provide progress reports, and retain only those records which make up the file grade. FERPA pertains to the release of records.

I understand the information may be released orally or in the form of copies of written records, as preferred by the requester. This authorization will remain in effect from the date it is executed until revoked by me, in writing, and delivered to the educational facility identified above.

I, ________________ (TDCJ #_____________, DOB ______________), being presently incarcerated in the _______________________, in _________________ County, Texas, declare under penalty of perjury that the foregoing is true and correct.

Executed on this _______ day of, _________________, 20__.

_______________________________ Signature

RELEASE OF RECORDS I, ___________________, by this release or a facsimile thereof, authorize and request the following entity: __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________ to release to ____________________, and her designated representatives, any employment records, including but not limited to records indicating the terms of employment, payroll, time, and any disciplinary records.

In consideration of this disclosure of otherwise confidential information, I hereby release you (in your individuals and/or institutional capacity) from any and all liability arising from such disclosure to these designated parties.

You are authorized

to release the above records to the following office and its representatives: Law Firm, PLLC 123 Main Street City, TX 00000 (P) 000-000-0000, (F) 000-000-0000 I understand the following: that I have a right to revoke this authorization in writing at any time, except to the extent information has been released in reliance upon this authorization and that the information released in response to this authorization may be re-disclosed to other parties.

Additionally, I authorize any representative or employee, past or present, from the above named facility to speak with any representative of the above referenced office,

about any of my records, or any other personal recollections, opinions, or insights they have about me or my history. Any facsimile, copy or photocopy of this authorization shall authorize you to release the records requested herein. This authorization shall be in force and effect until two years from the date of execution.

Name:

____________________

DOB:

____________________

SSN:

____________________

TDCJ or other jail#:

____________________

I, ________________ (TDCJ #_____________, DOB ______________), being presently incarcerated in the _______________________, in _________________ County, Texas, declare under penalty of perjury that the foregoing is true and correct.

Executed on this _______ day of, _________________, 20__.

______________________________ Signature

CAUSE NO. _____________ THE STATE OF TEXAS

§

IN THE _____TH DISTRICT COURT

§ V.

§

OF

§ JOHN SMITH

§

CONVICTING COUNTY, TEXAS

MOTION TO UNSEAL JUROR INFORMATION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, John Smith the defendant, by and through his counsel of record in the above-titled and captioned cause with this Motion to Unseal Juror Information and as grounds shows the Court the following: Texas Rule of Evidence 606 provides that “[u]pon an inquiry into the validity of a verdict…a juror may testify…whether any outside influence was improperly brought to bear upon any juror.” Rule 606(b) attempts to strike a balance between the desire to rectify verdicts tainted by irregularities in the deliberative process and the desire to protect jurors and promote the finality of judgments. Hicks v. State, 15 S.W.3d 626 (Tex. App.--Houston [14th Dist.] 2000, pet. ref’d), citing Sanders v. State, 1 S.W.3d 885 (Tex. App.--Austin 1999, no pet.). “[I]nformation collected by the court or by a prosecuting attorney during the jury selection process about a person who serves as a juror, including the juror’s home

address, home telephone number, social security number, driver’s license number, and other personal information, is confidential and may not be disclosed by the court, the prosecuting attorney, the defense counsel, or any court personnel.” However, a party to the trial may apply to have the juror information released and the court shall, on a showing of good cause, permit disclosure of the information sought. TEX. CODE CRIM. PRO. ANN. art. 35.29.

List your reasons for needing the information below. I have included an excerpt from a case where the judge granted my request.

Appellant was convicted of burglary of a habitation on May 17, 2018, and sentenced to 20 years confinement in the Institutional Division of the Texas Department of Criminal Justice that same day. During the trial, juror John Hoang, admitted to conducting outside research. (Appendix A). The trial court questioned that juror regarding the research, but failed to question the other jurors how that research may have affected their deliberations and verdict. (Appendix A).

Further, Mr. Hoang contacted the assistant district attorneys who tried the case on May 17, 2018, after the verdict was entered 1. (Appendix B). Mr. Hoang appears to reveal that the jury failed to follow the court’s instructions that the burden always remain on the State.

1

This correspondence was provided to appellant’s counsel on June 11, 2018.

The defendant seeks the release of the juror information, to counsel for appellant and her investigator, so that counsel may properly investigate whether the jurors were subjected to any improper influence or corruption.

WHEREFORE, PREMISES CONSIDERED, defendant prays this Honorable Court enter an order releasing the juror information.

Respectfully submitted,

__________________________ Attorney SBOT Address Phone Number Fax Number Email

CERTIFICATE OF SERVICE This is to certify that a true and correct copy of this motion was served on a lawful representative of the Convicting County District Attorney by eservice on __________________.

_________________________ Attorney

CAUSE NO. _____________ THE STATE OF TEXAS

§

IN THE _____TH DISTRICT COURT

§ V.

§

OF

§ JOHN SMITH

§

CONVICTING COUNTY, TEXAS

ORDER After considering the defendant’s Motion to Unseal Juror Information, defendant’s motion is GRANTED. This Court hereby Orders the District Clerk to unseal the juror information sheets on all jurors who were selected and seated during the trial and provide access to this information to the attorney of record on appeal.

Signed on ________________. _________________________ Presiding Judge

CAUSE NO. _____________ THE STATE OF TEXAS

ยง IN THE _____TH DISTRICT COURT ยง ยง OF ยง ยง CONVICTING COUNTY, TEXAS

V. JOHN SMITH

MOTION FOR NEW TRIAL Comes now John Smith, defendant in the above styled and numbered cause and files this motion for new trial pursuant to Texas Rule of Appellate Procedure 21. In support, Defendant shows the following: STATEMENT OF THE CASE Defendant was charged with _________________.

The defendant was

convicted of the charged offense. The jury sentenced the defendant to ___ years confinement in the Institutional Division of the Texas Department of Criminal Justice.

JURISDICTION A Motion for New Trial is timely if filed on or before __________________.

See TEX. R. APP. P. 21.4(a).

1

EVIDENTIARY HEARING Defendant is entitled to a hearing on this motion because it raises issues outside of the trial record, is verified by the attached affidavit, and is timely filed and presented to this Court. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009).

REASONS FOR GRANTING A NEW TRIAL I am including several grounds that have been raised in the past, with varying degrees of success.

The defendant’s right to a fair trial and the effective assistance of counsel were violated due to prosecutorial misconduct. *** The trial court erred in failing to properly instruct the jury on self-defense when the defensive issue was raised at trial. *** The evidence is insufficient to support the jury’s verdict. *** The trial court violated the defendant’s right to due process and a fair trial when he failed to question the entire jury as to whether they were aware of, and influenced, by a juror’s own outside research, that was conducted in contradiction to the court’s instructions. ***

2

Newly-discovered evidence reveals that the jury failed to follow the court’s instructions regarding its duty and the State’s burden of proof. *** A juror has revealed that, since conviction, a true verdict did not render. *** Appellant’s plea to 25-years confinement was not made knowingly, voluntarily, and intelligently. *** The trial attorney failed to give effective assistance of counsel when he failed to investigate the crime at hand. He was appointed and failed to ask for an investigator, any experts, withdrew the one motion he did file on suppression, failed to request any assistance or perform any work prior to trial.

ARGUMENT The following is an except from a motion for new trial based upon prosecutorial misconduct The Sixth Amendment of the United States Constitution guarantees an accused the right to a fair proceeding. For Sixth Amendment purposes, “a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984).

3

The following is a summary of the offense taken from the police report: One complainant, XG, reported that she was walking home from a friend’s house at 5:00 p.m. She was approached by two black males holding semi-automatic handguns in her driveway. The men were later identified as MS and TS. XG was forced inside of her home where she and her nephew were held at gun point. The men then led XG and her nephew room to room while they collected property. XG was forced into a bathroom by MS. MS ordered XG to remove her clothing. MS then exposed his penis and began masturbating. MS ordered XG to place her hands on the counter and face away from him. TS ejaculated into a white towel. After about one hour, the men left the home. At 6:21 p.m., law enforcement was led to a vehicle suspected of being involved in the offense. MI and KW were in the back seat. MS and TS were detained coming out of a nearby store. The complainants’ belongings were located in the vehicle, along with handguns, and the white towel.

MS, TS, and KW were all sentenced before the defendant, MI. (Appendix A).

At no time did XG make any statements inconsistent with the above rendition of how the offense occurred. (Appendix A). Prior to the defendant’s sentencing hearing, the prosecutor met with XG for approximately one hour. (Appendix A). During direct examination, XG testified consistently with her previous statements. (Appendix A).

The prosecutor then asked her, pointedly, whether MS penetrated her vaginally or anally. (Appendix A). For the very first time, XG stated that MS placed his penis in her vagina. (Appendix A). This testimony was a surprise to the defense and was never revealed prior to this time. (Appendix A).

Courts historically have looked unfavorably on “trial by ambush.” See Jaubert v.

State, 74 S.W.3d 1, 4-5 (Tex. Crim. App. 2002) (Cochran, J., concurring) (“[T]he letter of the law is not always a perfect reflection of the spirit of the law, ... [which] is to ensure 4

that Texas criminal proceedings are not a contest of clever gamesmanship or trial by ambush. There is very little formal pretrial discovery mandated in Texas criminal proceedings, but our Rules of Evidence are drafted to ensure that Texas criminal practitioners remain gentlemen and gentlewomen who do not spring evidentiary surprises on their adversaries.”).

The State’s failure to disclose this highly prejudicial fact prior to the hearing deprived the defendant of her right to a fair trial and the effective assistance of counsel.

Counsel for the defendant was unable to investigate the veracity of XG’s new claim or properly counsel his client, considering this new offense. In Riggs v. United States, the defendant was charged with the uttering of and dealing in counterfeit $20 federal reserve notes. Riggs v. United States, 280 F.2d 750, 751-52 (5th Cir. 1960). A witness testified to alleged transactions involving passing of counterfeit bills other than those referred to in the indictment. Id., at 753. The 5th Circuit found that “the defendant was deprived of a fair trial by the cloak and dagger manner of getting this surprise testimony into evidence…” Id., at 754. …

5

CONCLUSION WHEREFORE, Defendant prays that this Court set this matter for an evidentiary hearing, and at the conclusion, grant this motion for new trial.

Respectfully submitted,

__________________________ Attorney SBOT Address Phone Number Fax Number Email CERTIFICATE OF SERVICE This is to certify that a true and correct copy of this motion was served on a lawful representative of the Convicting County District Attorney by eservice on _________________.

_________________________ Attorney

6

Appendix A

7

CAUSE NO. _____________ THE STATE OF TEXAS V. JOHN SMITH

ยง IN THE _____TH DISTRICT COURT ยง ยง OF ยง ยง CONVICTING COUNTY, TEXAS

PRESENTMENT Counsel for Defendant presented the motion for new trial in the above-cited cause numbers on __________________, within 10 days from the date of filing. _________________________ Presiding Judge

8

CAUSE NO. _____________ THE STATE OF TEXAS V. JOHN SMITH

ยง IN THE _____TH DISTRICT COURT ยง ยง OF ยง ยง CONVICTING COUNTY, TEXAS

ORDER FOR HEARING After reviewing the pleading and hearing argument of counsel, if any, this Court orders that a hearing on the matter be set for ______________________.

_________________________ Presiding Judge

9

Texas Criminal Defense Lawyers Association

Capital Seminar February 5, 2021 Livestream

Topic: Scorched Earth Litigation Speaker:

Lisa Andrews

1207 S Shepherd Dr Houston, TX 77019-3611 (713) 523-7878 (713) 523-7887 lisa@lisaandrewslaw.com www.lisaandrewslaw.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Scorched Earth Litigation Lisa K. Andrews lisa@lisaandrewslaw.com Houston, Texas 2021

Origin of the term “Scorched Earth” • The term “scorched earth” started as a military term.

During times of war, troops would destroy valuable goods – crops, buildings, routes in and out of towns – in order to make them unusable by enemy troops.

• General Sherman’s march to the sea during Civil War-broke back of Confederacy

Negative connotation in many contexts

• Google search • Scathing judicial opinions • Civil cases: This litigation tactic typically involves wasteful motions, depositions, written discovery, unwarranted objections, used to drive the costs of litigation and force insurers or plaintiffs into settlement • Doesn’t seem to apply to criminal cases • Doesn’t have to be ALL negative

Football • “What I would like for every football team to do that we play is to sit there and say, ‘I hate playing against these guys.’”‐ Nick Saban • My definition: Goal is to wear down the other side, create excessive amounts of work, and act relentless

What scorched earth is NOT

• Acrimony (necessarily) • Unethical behavior/filings/arguments

Making ADA WORK

• Inexperience of many DA’s Offices • Overworked • Don’t often have to think outside their daily routines

CHALLENGING YOURSELF

Arraignment/Bond Issues

•Is the client entitled to a bond?

•Proof Evident Hearing

Pretrial Investigative Subpoenas issued by State Client’s medical records • Object • Ask for a hearing • Motion to Quash

Pretrial Business Records Affidavits • 902(10) • General written objection within 14 days of notice, hearing (consider), get a ruling • Grunt work: view records, count pages, review language of affidavit

Pretrial‐ Think outside the box

•Motion for Early Expert Witness Designation •Include their reports •Court order, not 39.14 •Assert particularized reasons

Jury Selection

•Good faith Motion for Continuance‐ reviewing questionnaires •Batson •Requesting additional peremptory challenges

Trial • Everyday, file a new motion • Object, throw them off of their game • Obstruct • Make them lay every predicate • Object, move for instruction, mistrial • Don’t forget to re‐urge pretrial objections to rulings • Take experts on voir dire

Trial‐ Jury charge

•Object •Know relevant caselaw •Consider additional or different language to submit to the court

“If you don’t play to win, don’t play at all.” ‐Tom Brady

Texas Criminal Defense Lawyers Association

Capital Seminar February 5, 2021 Livestream

Topic: Recent Texas Death Penalty Developments at the Supreme Court Speaker:

Gretchen Sween PO Box 5083 Austin, TX 78763-5083 (214) 557-5779 Phone gsweenlaw@gmail.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Capital Seminar, February 4, 2021 Gretchen Sween, Ph.D., J.D

RECENT TEXAS DEATH-PENALTY CASES AT THE SUPREME COURT

OVERVIEW The Different Routes The Bad News

The Better News The Best News News in the Making?

THE DIFFERENT ROUTES (TO THE SAME DESTINATION)

THE BAD NEWS “Late Stage Litigation” and the “Shadow Docket” E.g.: recent federal death-penalty litigation 

12 executions since 7/2020 (as of 1/15/2021)



Several tried in federal court in Texas, including Brandon Bernard, 18 at time of the crime)



Each litigant pursued multiple appeals to SCOTUS, many substantive issues (Ford incompetence, ID, violations of federal statute, etc.)



Only Result: stays denied or stays vacated

MORE BAD NEWS 1 of only 3 executions in Texas in 2020, BUT: On July 8, 2020, the State of Texas executed Billy Joe Wardlow despite COVID-19 surge that had prompted stays of other scheduled executions. Wardlow, like Brandon Bernard, put to death for a crime committed decades ago when he was 18 years old. Cert petition denied on Texas-specific issue: Over the past fifteen years, neuroscientific research has established with scientific certainty that because of continuing brain development until sometime in our early 20’s, the neurological basis for a person’s character, and hence his or her character, is not fully formed prior to the age of 21. Because of this, it is now clear that there can be no reliable prediction concerning future dangerousness for a person who has committed a capital murder prior to the age of 21. Billy Wardlow was 18 at the time of his murder. These facts raise the following question: Whether, under the Eighth and Fourteenth Amendments, Texas may continue to impose, and carry out previously imposed, death sentences for which future dangerousness is or was used to determine death eligibility for defendants who were under 21 years old at the time of the crime?

THE SUBTEXT? View of many justices on current Court evident in: Bucklew v. Precythe, 587 U.S. ___ (2019) I: challenging methods of capital punishment under 8th Amendment

Justice Gorsuch for very fractured court, joined by CJ Roberts, JJs Thomas, Alito, Kavanaugh; dissents from JJs Breyer, Ginsburg, Sotomayor, Kagan

“The proper role of courts is to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously. Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay. Last-minute stays should be the extreme exception, not the norm, and "the last-minute nature of an application" that "could have been brought" earlier, or "an applicant's attempt at manipulation," "may be grounds for denial of a stay." (citations omitted).

THE BETTER NEWS 

ID Litigation in wake of Bobby Moore v. Texas (2017) & (2019)



Statements from Justice Sotomayor in, e.g.: 

Rodney Reed



Randy Halprin

INTELLECTUAL DISABILITY ASSESSMENT Moore v. Texas, 581 U.S. ___ (2017) (“Moore I”) Overruled CCA and court-created “Briseno factors” Clarifying that, to comply with Atkins v. Virginia, 536 U.S. 304 (2002), courts must use legitimate medical diagnostic criteria when assessing ID in death-penalty case.

Texas’s approach unconstitutional: "mild levels of intellectual disability ... nevertheless remain intellectual disabilities ... and States may not execute anyone in the entire category of intellectually disabled offenders."

Moore v. Texas. 586 U.S. ___ (2019) (“Moore II”) CCA failed to apply Moore I to Bobby Moore himself Big Impact in Texas:  Stays of pending executions  Relief in state habeas (Gilmar Guevara, Juan Lizcano, Clifton Williams, etc.)  Relief on direct appeal (Charles Brownlow)  Trial Negotiations (to get death off the table)

STATEMENTS FROM JUSTICE SOTOMAYOR 



Rodney Reed: cert petition off subsequent state habeas application invoking Brady issues, junk science, and actual innocence

Randy Halperin: cert petition off of subsequent federal habeas petition on “judicial bias” against Jewish litigant

RODNEY REED LATEST’S CERT PETITION 3 Questions Presented: 

When assessing under the Brady materiality standard whether “disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable,” [Kyles v. Whitley] how should a court consider the impact of a key trial witness’s assertion of the privilege against selfincrimination and refusal to testify when confronted with the suppressed exculpatory evidence?



When expert testimony relied on by the State in a criminal trial is later shown to be scientifically invalid, what is the appropriate standard to assess whether the State’s use of scientifically invalid expert testimony was in violation of Due Process?



Does the conviction or execution of a person who is actually innocent of the crime violate the United States Constitution?

J. SOTOMAYOR STATEMENT: REED (Feb. 2020) 

“Reed’s proceedings on his recently filed tenth application of course remain pending in the Texas courts.

Texas, importantly, has recognized that the incarceration or execution of the actually innocent violates the Due Process Clause of the Fourteenth Amendment”



“It goes without saying that, should the Texas courts deny Reed relief in his tenth state habeas proceeding, today’s decision to decline review in no way prejudices Reed’s ability to seek review of that hypothetical future decision.”



“So, too, does it go without saying that today’s decision implies nothing about the merits of either the underlying eighth and ninth state applications or the tenth application pending in the Texas trial court (which, of course, rests on a different overall body of evidence).”

J. SOTOMAYOR STATEMENT: REED (Feb. 2020) 

“In the instant petition for a writ of certiorari, Reed has presented a substantial body of evidence that, if true, casts doubt on the veracity and scientific validity of the evidence on which Reed’s conviction rests.”



“certainly they deserve sober consideration when a capital conviction and sentence hang in the balance. In the pending tenth state habeas proceeding, however, Reed has identified still more evidence that he says further demonstrates his innocence. It is no trivial moment that the Texas courts have concluded that Reed has presented a substantive claim of actual innocence warranting further consideration and development on the merits.”



“While the Court today declines to review the instant petition, it of course does not pass on the merits of Reed’s innocence or close the door to future review.”



“I remain hopeful that available state processes will take care to ensure full and fair consideration of Reed’s innocence—and will not allow the most permanent of consequences to weigh on the Nation’s conscience while Reed’s conviction remains so mired in doubt.”

RANDY HALPRIN’S CERT PETITION

RANDY HALPRIN’S CERT PETITION

J. SOTOMAYOR STATEMENT: HALPRIN (April 2020) 

Ok w denial of cert b/c: 

state proceedings still under way and can address “Halprin’s assertion that insidious racial and religious bias infected his trial”; were the Texas courts to agree with Halprin on the merits of his judicial-bias claim, this petition for a writ of certiorari about a federal procedural provision would become moot



Denial of cert does not foreclose other avenues to seek relief



“I trust that the Texas courts considering Halprin’s case are more than capable of guarding this fundamental guarantee.” [hint, hint]

THE BEST NEWS: A WIN FOR THE DEATH-SENTENCED PETITIONER Terence Tremaine Andrus v. Texas, 590 U.S. __; 140 S. Ct. 1875 (2020)

PUSHED OUT OF THE HEADLINES (BOSTOCK V. CLAYTON COUNTY, GEORGIA)

THE PROCEDURAL HISTORY  Appealed from CCA decision denying relief in initial state habeas; CCA refused to adopt trial court’s FFCL and rejected favorable recommendation for relief on IAC punishment-phase claim without explanation  QP to SCOTUS: Does the standard for assessing ineffective assistance of counsel claims, announced in Strickland v. Washington, fail to protect the Sixth Amendment right to a fair trial and the Fourteenth Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated “no prejudice” analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsel’s ineffective representation?  Relisted or rescheduled over 20 times!  Result of cert grant: a GVR not a decision to review merits of QP

ANDRUS: THE HOLDING Trial counsel performed deficiently.

Specifically, the Supreme Court held trial counsel performed deficiently in several categorical ways:

• “First, counsel performed almost no mitigation investigation, overlooking vast tranches of mitigating evidence.”

• “Second, due to counsel’s failure to investigate compelling mitigating evidence, what little evidence counsel did present backfired by bolstering the State’s aggravation case.”

• “Third, counsel failed adequately to investigate the State’s aggravating evidence, thereby forgoing critical opportunities to rebut the case in aggravation.”

Andrus, 140 S.Ct. at 1881-82.

ANDRUS: THE DIRECTIVE ON REMAND Assess prejudice.

The Standard

Because death sentence in Texas requires unanimous jury recommendation on at least two special issues, “prejudice here requires only ‘a reasonable probability that at least one juror would have struck a different balance’ regarding [defendant’s] ‘moral culpability[.]’” Andrus, 140 at 1886 (quoting Wiggins, 539 U.S. at 537-538 and citing Tex. Code Crim. Proc. Ann., Art. 37.071).

ANDRUS: THE DIRECTIVE ON REMAND Assess prejudice.

How to apply the standard to this kind of IAC claim?

Habeas courts must consider the “totality” of evidence adduced at both trial and in a habeas proceeding regarding counsel’s deficient performance and must “weigh the evidence in aggravation against the totality of available mitigating evidence.”

Cannot short-circuit the analysis by stating:  Crime was really aggravated

 Mitigating evidence was “duplicative” of trial evidence Have to consider how the trial record was product of the deficient performance

INEFFECTIVE ASSISTANCE CLAIM AT ISSUE IN ANDRUS: FAILURE TO INVESTIGATE AND PRESENT MITIGATING EVIDENCE Seminal Cases re counsel’s duty to conduct thorough mitigation investigation and then make strategic decisions about what to present to the jury: 

Williams v. Taylor, 529 U.S. 362 (2000) .



Wiggins v. Smith, 539 U.S. 510 (2003).



Rompilla v. Beard, 545 U.S. 374 (2005).



Porter v. McCollum, 558 U.S. 30, 41 (2009).



Sears v. Upton, 561 U.S. 945 (2010) (per curiam).

Andrus: the first time in 10 years SCOTUS has offered guidance.

WAYS TO USE THE ANDRUS DECISION Reverse-Engineer for Primer On— o What Not To Do (avoid ineffectiveness) o What To Do (embrace zealous advocacy) Use it to Educate Texas Courts o At trial, invoke habeas boogey-man to obtain sufficient time and resources. o

In habeas, emphasize court must undertake a “weighty and record-intensive analysis” Andrus, 140 S.Ct. at 1887. This requires “engag[ing] with the effect the additional mitigating evidence highlighted by [habeas applicant] would have had on the jury.” Id. at 1886.

NEWS IN THE MAKING: PENDING CERT PETITION 

Religious Liberty Issue: Spiritual Adviser in the Death Chamber 

Ruben Gutierrez, Petitioner; SCOTUS 20-7009; conference on 1/15/2021



Since Petitioner’s last filing, the district court has determined, at this Court’s direction, that “no serious security problems would result if a prisoner facing execution is permitted to have his chosen spiritual adviser in his immediate presence during the execution.” In addition, this Court issued its decision in Roman Catholic Diocese of Brooklyn v.

Cuomo, No. 20A87, 2020 WL 6948354 (U.S. Nov. 25, 2020). Together, the district court’s determination and Cuomo make clear that the Fifth Circuit erred in this case. In light of this intervening matter, this Court should either grant the writ and summarily reverse, or grant the writ, vacate the judgment of the Fifth Circuit, and remand for further proceedings.

NEWS IN THE MAKING: PENDING CERT PETITION 

Due Process Deprivation: Convictions Based on Discredited Science 

Charles Flores, Petitioner; SCOTUS 20-5923; first conference on 1/22/2021

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Article 11.073, “junk science writ”

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QP: Is the Constitution’s guarantee of a fundamentally fair trial compromised when a conviction hinges on an in-court eyewitness identification obtained after an investigative hypnosis session conducted by law enforcement—especially in a death-penalty case that requires heightened reliability in factfinding?

ANY QUESTIONS?

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