Journey to Justice Waco

Journey to Justice January 27, 2023 Waco, Tx

Course Directors:

Michelle Latray, Stan Schweiger, & Monique Sparks

The seminar is sponsored by CDLP, a project of TCDLA, funded by the Texas Court of Criminal Appeals

JOURNEY TO JUSTICE SEMINAR INFORMATION Date Location Course Director Total CLE Hours

January 27, 2023 Hilton Waco | 113 S. University Parks Dr., Waco, TX 76701 Michelle Latray, Stan Schweiger, & Monique Sparks 6.0 Ethics: 1.0

Friday, January 27, 2023 Time

CLE

Daily CLE Hours: 6.0 Ethics: 1.0

Topic

Speaker

7:30 am

Registration and Continental Breakfast

8:15 am

Opening Remarks

Michelle Latray, Stan Schweiger

8:30 am

1.0

Call to Action | Open and Closing Arguments

Andrew Decker

9:30 am

.75

Seeking the Truth | Voir Dire

John Hunter Smith

10:15 am 10:30 am

Break .75

11:15 am 11:30 am

Preparing for the Journey | Pre-Trial Investigations

Kyle Therrian

Lunch Line 1.0

12:30 pm

Lunch Presentation: Staying Mentally Strong for the Journey | Mental Health

Annie Scott

Break

12:45 pm

.75

Using the Right Tools for the Journey | Technology in the Courtroom

Thuy Le

1:30 pm

.75

Brothers and Sisters in the Walk | Experts & Witnesses

Chris Self

2:15 pm

1.0

Remembering Why We are on the Journey | Client Relationships & Communications

Molly Bagshaw

Ethics 3:15 pm

Adjourn

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

Criminal Defense Lawyers Project

Journey to Justice Table of Contents

Speakers

Topic Friday, September 9, 2022

Andrew Decker John Hunter Smith Kyle Therrian

Call to Action | Open and Closing Arguments Seeking the Truth | Voir Dire Preparing for the Journey | Pre-Trial Investigations

Annie Scott

Staying Mentally Strong for the Journey | Mental Health

Thuy Le

Using the Right Tools for the Journey | Technology in the Courtroom

Chris Self Molly Bagshaw

Brothers and Sisters in the Walk | Experts & Witnesses Remembering Why We are on the Journey | Client Relationships & Communications

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

Texas Criminal Defense Lawyers Association

Journey to Justice

January 27, 2023 Hilton Waco 113 S. University Parks Dr. Waco, TX 76701

Topic: Call to Action | Open and Closing Arguments Speaker:

Andrew Decker

301 Commerce St Suite 2001 Fort Worth, TX 76102 (817) 332-3822 Phone andrew@andrewdeckerlaw.com Email

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

Opening and Closing Statements Journey to Justice Waco, Texas January 2023 Andrew J. Decker Daniel, Moore, Evans, Biggs, Decker, and Smid (not a partnership)

817-332-3822 andrew@andrewdeckerlaw.com 301 Commerce Street City Center Tower II Suite 2001 Fort Worth, Texas 76102

Opening and Closing Statements Opening and closing are about a theme, a story. The story is your client; the theme is how you tell their story to put them in the best possible light and to hopefully come out with a WIN. As the attorney for your client, you get to spin a story. You get to paint a picture.

You can evoke an emotion. Opening and closing are the mix of the arts of storytelling and public speaking. It is an art and a skill; a talent which can be learned, honed, and must be practiced if it is to be mastered.

Storytelling and Public Speaking with a Bit of Debate 1. Know your material a. The theme, the story, the essence of your case, and your client b. The actual facts – you cannot argue what you do not know c. Know the piles of facts and names and places and times so thoroughly that they are almost committed to memory. You have to know them to be able to spin them and use them and embrace them.

2. Know their arguments better than they do a. The State’s case b. The weak points in the evidence c. I often think as I leave a trial, I could have tried the case against my client more effectively given the facts and arguments the prosecutor left off the table. If you know their material better than they, you will never be surprised by what the State brings to trial.

3. Prepare your theme of the case a. What can you realistically win? Or what is your objective? i. Not guilty? ii. Lesser included? iii. A legal defense? b. Which facts or testimony do you expect to come forth at trial hurt your conclusion or objective c. Think like a normal person who may be on a jury listening to you and what you are trying to sell. Would you believe the guy who caused an accident on the freeway was not actually DWI? i. People are not stupid ii. And they are going to follow the “authority” of the State 2|Page

4. Own the space a. Volume b. Eye Contact c. Presence d. Pacing and Space 5. Practice a. Do not wait until you are called to trial to practice public speaking b. Practice your jury selection, your opening, and closing 6. You are not getting paid by the word; be brief when possible

Opening Statements 1. Put out your markers a. This case is about ______________. If you cannot fill in this blank you need to go back to your theme of the case. This case is about selfdefense. This is about inconsistent statements. This is about being at the wrong place at the wrong time. b. Road signs on the journey – give them the points of interest. i. Watch for a police officer who cannot properly administer the field sobriety test. ii. Listen how many times you hear the word “fake.” c. You have to help them see not just the road paved to the prison. You have to help them see the points of interest so they are not just blindly following the dotted line. d. Remind the jury they do not have to like your client or the offense to find them NOT GUILTY 2. Tell them what they will NOT see a. Are there things missing? b. What do your mock jurors say they want to see but are not in this case?

3. Tell your story; the story of your client a. Breathe life into the mundane. b. Humanize your client. They may not be likeable, but they are still human. i. If you cannot see your client as a human, go back and talk to them again. ii. Talk to their momma or grandma.

3|Page

iii. Go visit the house or neighborhood where they lived most recently. c. Hero and Villain. i. It is unlikely that your client is the hero. ii. Who is the villain in your story? Your client will never claim to be the villain. No one is the villain in their own story. d. State v. David Shepherd 4. DO NOT a. Use this as a time to introduce yourself. b. Give the jury the first hint of your theme of the case c. Avoid the big pink elephants in the room i. Confession ii. DNA iii. BAC d. Talk like a lawyer. Slow down and meet the jury where they are. i. Exception if you are trying to actually bring the jury along with you.

5. The LAW a. Right to a Statement i. Art. 36.01(a)(5) CCP provides the defense may give an opening statement and (b) provides the defense may make said opening statement immediately after the State makes an opening statement. ii. If the State does not make an opening statement, the defense is not entitled to an opening statement prior to the introduction of evidence. See Boston v. State, 871 S.W.2d 752 (Tex. Cr. App. 1994). iii. The defendant does not have the right to make an opening statement in a case where he will not present any witnesses or evidence and is merely arguing that he is relying on his plea of “not guilty.” Donnell v. State, 191 S.W. 3d 864 (Tex. App. – Waco 2006, no pet.); See Norton v. State, 564 2d 714 (Tex. Cr. App. 1978). b. Do not “open the door” and throw your client under the bus i. A defense opening statement opens the door to the admission of extraneous-offense evidence to rebut the defensive theory presented in the defense opening statement. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008)

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Closing Arguments 1. Go back to that theme, the story of your client and their case a. If the theme you started with in jury selection and opening is not alive and well, you did something wrong in preparing your case for trial.

2. Focus on the facts which support your conclusion and theme.

3. Do not try to sell anything you yourself would never buy. a. If you do not believe it neither will they 4. NOT Guilty – SAY IT! 5. Give them a reason to find your client not guilty a. They are going to follow their gut b. They are not going to worry about the nearly impossible legal standard of “beyond a reasonable doubt.” c. They will not want to convict a person they think may be innocent 6. Tell your story a. What still holds up b. Find ways to sell the argument i. A repeated phrase: “if it does not fit you must acquit” ii. Alliteration: The lab botched the bloodwork; c. Use Signs to signal a transition i. Now we will talk about the bloodwork ii. Remember the poor performing patrol officer 7. Outline or bullet point your argument so you can keep it to one page. a. You will add to this through trial b. Point to specific moments in the trial you do not want the jury to forget when they go back and begin deliberations. c. This is the only time I thank them – thank them for being attentive.

And then tell them to find your client NOT guilty.

Mostly, this is all about telling a story. Tell your story. Tell the story of your client.

Enjoy the journey.

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Texas Criminal Defense Lawyers Association

Journey to Justice

January 27, 2023 Hilton Waco 113 S. University Parks Dr. Waco, TX 76701

Topic: Seeking the Truth | Voir Dire Speaker:

John Hunter Smith

707 W Washington St Sherman, TX 75092 (903) 893-8177 Phone jsmith@wynnesmithlaw.com Email http://www.wynnesmithlawfirm.com/ Website

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

Seeking the Truth: Voir Dire Mario A. Olivarez 413 N. Tancahua St, Corpus Christi, TX 78401 361-728-8672 In 1692, our Country, then just some colonies, underwent one of the greatest injustices in our history. So great, in fact, we still talk about it over 300 years later. Do you know what that event was?

Voir Dire, or jury selection, is where you can make or break your case. It is your first chance to get the jury to like you, or hate you, without getting into the facts of the case.

It is also your opportunity to show the jury who you are, whether that is a showman, an orator, or someone that is reserved but gets it done. You can observe 100 attorneys during jury selection, and you will observe 100 different ways to do it. Even further, you watch those same attorneys at a different trial, and they will have a different way proceeding through that process.

The question that we as attorneys need to ask ourselves is this, “how do we effectively serve our clients through the Voir Dire process?” The answer to this question bears the responsibility on each individual attorney and how he or she can effectively tell their clients story so that they can find their enemies and allies on the jury, knowing when and who to use a strike for, and knowing when to properly object, yes, you can object during Jury Selection.

I.

When does jury selection begin?

Jury Selection is one of those tasks that some attorneys absolutely hate. Going to trial is something that some attorneys hate, and most can name a handful of attorneys that will avoid a trial when possible. However, 1

See https://www.prnewswire.com/newsreleases/what-percentage-of-americans-currentlylive-in-the-town-or-city-where-they-grew-up-

choosing a jury is a critical role in assisting your client’s journey to justice, but when does that process begin?

To most, jury selection begins when the bailiff brings the panel up to the Courtroom.

But what if I were to tell you that it begins much earlier than that? In fact, in my opinion, Jury Selection begins the second you leave your house. Here are some things that you can do on your way to the Courthouse that could impact a potential juror: ● ● ● ● ●

Cut someone off while driving Be rude the barista Have a vanity plate Looking nice Driving a fancy car

While this list is not meant to be exhaustive, at the end of the day potential jurors are still people and hold grudges. So if you cut someone off while getting to Starbucks in a $100,000 Mercedes with a vanity plate that says “#1Attorney” with a custom suit and that someone sees that they get to sit in judgement of you and your client; well then that may come back to hurt you and more importantly, your client.

A lot of this will also depend on where you practice. What works in a city may not work in some of the smaller counties that we practice in. If you have never had the opportunity to practice in a small jurisdiction, it is an experience. You will appear as an outsider because you are, in fact, an outsider.1 A little over 72% of a town’s population, will never leave that town.2 That means that the 300952249.html (stating 72% of Americans stay near the area where they grew up) 2 Id.

Seeking the Truth: Voir Dire Mario A. Olivarez 413 N. Tancahua St, Corpus Christi, TX 78401 361-728-8672 people in this town, have grown up together, gone to church and school together, and have remained in each other’s lives forever. So, if you are going up against a local attorney, the phrase “getting hometowned” comes to mind. How do we avoid these situations?

One way that I have found effective is to go into the community where you know you’re going to have a trial. Make yourself known to them, prior to jury selection, remember that you are being judged by your interactions. Here are some ways you can make yourself known, or at least to be known to a few, in the community prior to the trial: • • • •

Eat at local restaurants Go the local feed store Get coffee Go hunting there

In the end, one of best things you can do is spend time there after any court settings.

I always try to get lunch, coffee, even go to store likes Family Dollar just so that way I am seen and known to some in the community.

II.

Getting them on your side

Let me paint you a picture. It is Winter, in a colonial province, some local girls have begun acting peculiar, some would say, supernatural, including a local doctor.

When confronted, the girls accuse three of their fellow town’s women of witchcraft.

These girls were Elizabeth Parris, Abigail Williams, and Ann Putnam.3 This kicked off one of our countries most infamous “Witch hunts.” The Government got involved and 3

https://www.smithsonianmag.com/history/a-briefhistory-of-the-salem-witch-trials175162489/#:~:text=The%20Salem%20witch%20trial

things got worse. Eventually, a minister named Cotton Mather, who was President of Harvard at the time, wrote a letter and implored the Special Court which had been convened from allowing was called “spectral evidence” which was essentially, “I dreamt that…and therefore…” from being used against the accused and stated “it were better than ten suspected witched should escape that one innocent person be condemned.”4 Of course he was ignored and the witch hunts continued; until, however, the Governor’s wife was accused of witchcraft. Then he stopped and made changes, however, by the time the trials stopped at least 20 citizens of Salem, Massachusetts had been killed and over 200 had been accused. How many of these citizens were witches? None.

The use of the dramatic history lesson is one effective way of grabbing your audience’s attention. By this time your jury panel has already sat through either a PowerPoint presentation, God forbid an old school slide show, or a cut and paste, quite literally, presentation that is given by the prosecutor in every case. They are probably pretty exhausted from the legalese that is usually spoken by our opponent on the other side of the table. Using different tactics to wake them up or get them to listen to you, and follow you, and engage with you is one of the best ways of helping your client. You want to be able to tell which potential member of the jury is either on your side, hates you and your client, or is willing to listen to at least listen before passing judgment. So, what are some s%20occurred,the%20families%20of%20those%20co nvicted.

4 Id.

Seeking the Truth: Voir Dire Mario A. Olivarez 413 N. Tancahua St, Corpus Christi, TX 78401 361-728-8672 effective ways of communicating with the Jury? While not all encompassing you may want to consider the following: A. History lesson While history was very few peoples favorite subject growing up, it can effectively draw the audience in when used correctly.

We discussed earlier in this paper about the Salem Witch trials and I tried to paint you a picture about how I would explain that to the panel (not quite as effective on paper admittedly), but it works. Now you don’t want to monotonously read to them a lecture about the foundations of our Government, but it doesn’t hurt to explain how it is that we got to where we are today and explain how that can and sometimes is still the position that many of our clients find themselves in when we are standing in front of the jury.

One downside to this, however, is that you may have that history teacher or professor on your panel. If that is the case, you better be sure you have your facts straight.

B. Anecdotes Personalizing yourself to the jury is crucial to your arguments and your client’s arguments. Telling an anecdote to them is one way of getting them to see you or your client in a different light. This can also help you drive home the theme of your trial. For example, if you are in a Murder Trial and you want to argue that the killing was in selfdefense, telling a story about needing to defend oneself even if it might not be abundantly clear to others. If I am out hunting, and I am walking, if I see a rattlesnake I am not going to wait and see if

it attacks me first, I am going to kill it because I know the danger it presents to me or others if I leave it alone.

C. Connect with your panel You want to make sure that you are likeable and approachable to the jury. For some, this may be the first time they have interacted with an attorney and the only thing they know about us, and our profession is what they see in tv shows. You want to make sure that you are looking at them and interacting with them. Avoid having things in your hand when possible. Yes, this sounds counter intuitive for taking notes, but this is why it is important to have a second person help you when possible.

You also want to make sure that you are being compassionate with the panel. A lot of us may be taking some serious and emotionally tolling cases to trial.

Additionally, potential jurors themselves may have their own traumas that can and will impact their ability to be on the jury. You should be aware of that and try not to tell any jokes or, in anyway, discredit their experiences. A little compassion can go a long way.

For example, one question I always pose to the panel is “who here feels like they would not be a good juror in this case?” This is a good way to do get information regarding 1) who wants to be there; 2) who doesn’t want to be there; 3) who might have experiences to touch on; or 4) all of the above. Additionally, some jurors may not want to open up in a public setting, and in those cases I always ask if there is any juror who wants to discuss something in private

Seeking the Truth: Voir Dire Mario A. Olivarez 413 N. Tancahua St, Corpus Christi, TX 78401 361-728-8672 with us (the Defense, the State, and the Judge) in private. Some judges hate this and will not be happy that you are inviting a potential juror up to discuss something; however, you owe it to your client to do everything in your power to choose the best possible jury you can in their case.

III.

Challenges

There are two types of challenges allowed under the Code. These are peremptory challenges and challenges for cause. a. Peremptory challenges A peremptory challenge is, as defined by the Code, “…made to a juror without assigning any reason therefore[,]” or in other words, because you felt like it. Each side gets a set number of peremptory challenges under the Code which is based off of the type of offense which a defendant has been charged with. Someone charged with a misdemeanor offense gets either three peremptory challenges, if the offense is tried in the County court, or five peremptory challenges, if the offense is charged in the district court.5 For non-capital felony cases each side is allotted ten peremptory challenges unless there are multiple defendants.6 If there are multiple defendants, then each defendant will have six peremptory challenges and the State will have six for each defendant.7 Finally, on all capital offenses, each side is entitled to 15 peremptory challenges; and, similar to non-capital felonies, if there are 5 6 7

Tex Code of Crim. Proc art. 35.14.

Tex Code of Crim. Proc art. 35.15.

Id.

multiple defendants on trial, then that number is reduced to 8 per Defendant and 8 for each Defendant. So, for example, if two defendants are on trial for a capital offense, then each defendant would be entitled to eight peremptory challenges, and the State would be entitled to sixteen peremptory challenges.

Utilizing these peremptory challenges effectively is one of the best ways that we can help our clients achieve a favorable outcome.

I personally have struck jurors from my panels because I did not like their body language or the way they looked at my client.

I have also known other attorneys who got really creative with their challenge, one was a civil attorney. During jury selection he found out a pastor was on his panel. This attorney is a deeply religious man and could probably go toe-to-toe with most priests, ministers, or pastors. He began questioning the priest and, although he didn’t like the answers, ended with “I like you and I think you would be a great juror for this case.”

Well, what happened next was after each side went, this attorney used a peremptory challenge on him, so the other side now appears to be the one that did not want a pastor on the jury. b. Batson Challenges Peremptory challenges do have some restrictions on them, and that is that we cannot exclude a potential juror based on the race, ethnicity, or sex of that potential juror.8 This is codified in the Code and is more 8

See Batson v. Kentucky, 476 U.S. 79 (1986); see also Tex. Code of Crim. Proc art. 35.261.

Seeking the Truth: Voir Dire Mario A. Olivarez 413 N. Tancahua St, Corpus Christi, TX 78401 361-728-8672 commonly referred Challenge.”9

to

as

a

“Batson

The burden falls on you, the defense attorney, to show that the State has used its peremptory challenges in an impermissible manner. In a way, you switch hats and become a prosecutor. It becomes your responsibility that the State excluded a member of one of the protected classes.10 You must establish a prima facie case of exclusion based on the factors listed in the Code.11 Once established the burden shifts to the State to show a gender, racial or ethnically neutral explanation for the exclusion.12 It then is up to the trial court to determine the validity of explanation.13 In order to establish a prima facie case, you must show that a member of the protected class has been excluded. The question becomes, how do you do that? The answer comes down to preparation. Setting up how you conduct your Voir Dire to making a record is crucial in establishing the prima facie case of exclusion.

One helpful way to notate this by having help, get a second chair even if it is just for jury selection. If your county provides a list of the panel along with the panel’s demographic information IV.

Objections

Objections during Voir Dire are typically related to a few different categories: 1.

Misstatement of the law

2.

Improper questions 3.

Miscellaneous

Now, these are not the first two are not the only two objections that you can make during a Voir Dire, but they are probably among the most frequent objections that we make.

It is important to recognize when to make these objections because if you fail to do so, an appellate attorney will come back to haunt you because you lose that right on appeal. Further, failing to object hurts your client in the present and can allow a potentially negative answer from tainting the rest of your panel.

For example, you do not want a prosecutor to ask, “who here would agree that it is illegal to drink and drive?” That questions would be a misstatement of the law because the law does not prohibit having a drink and driving, instead it prohibits being intoxicated and driving. Further, sometimes the prosecutor will get on a soap box and use their time in front of the panel to as a preliminary opening argument and start to get into specific facts regarding your case. You will want to object to either get them to ask a question or to stop them from presenting facts with no evidence to support them.

You can also use Voir Dire to prepare you panel for the possibility of objecting during a trial or bring up issues that they understand might only require the Judge, the Defense, and Government to be present. By appearing to be more upfront during this

9

11

10

12

See id.

See Guzman v. State, 85 S.W.3d 242, 245-46 (Tex. Crim. App. 2002)

commitment

See id.

See id.

13 See id.

Seeking the Truth: Voir Dire Mario A. Olivarez 413 N. Tancahua St, Corpus Christi, TX 78401 361-728-8672 process, allows for the jury to know that you are not up to some sort of TV Defense attorney tricks, but instead doing what is necessary to defend your client’s right to a fair trial.

V.

Organization

One of the easiest ways to be effective with your Voir Dire is to be organized and there many ways to achieve this goal.

Organization is different from person to person, and, in my unresearched opinion, you will never find two attorneys who organize their Voir Dire presentations the same way.

Some attorneys will use a pen and paper and just quickly jot down notes. While others have the 300 counts of highlighters and colors that each have their own meaning to assist them.

What I have found the most effective for myself is to set up a grid based off of the layout of the courtroom that I will be in that day. Now keep in mind, with many counties having very specific Covid protocols, you may be choosing a jury in a different venue than the trial. Houston, for example, used NRG Stadium to help the panel spread out during the pandemic so that they could still choose juries. Many attorneys found this difficult because it was hard to see, hear, and communicate with prospective jurors. The grids that I use looks something like this:

It does not need to be fancy, and I have found that the simple solutions are often the most effective. Some courts may already have these preprinted for attorneys to use and may make your jobs a little bit easier, especially if you do not normally practice in that jurisdiction.

After the grid, or seating chart, is set up, you can move on to organizing it to best suit your needs. Once you get your jury list, you can use the information from that list to set up the remainder of that grid with any information on there that you may feel will help your during your selection process.

Have your client help you also, they are the ones that have the most to gain or lose from this process, it is getting them engaged, and it is more useful than having them sit staring at the panel.

This is where I recommend having a second chair, even if only for this part, to help you. When asking questions, you want to make sure you are staying engaged with the potential jurors. While you are asking questions, your second chair, can go through and notate how and which panelists are answering questions and whether they are good or bad. If you want to truly see how effective this is, go in and sit in on a Voir Dire if you are allowed. The last Voir Dire that I observed showed me just how much could be missed including how the jurors hated the prosecutor and how some flat out would make racist remarks which, in the heat of the

Seeking the Truth: Voir Dire Mario A. Olivarez 413 N. Tancahua St, Corpus Christi, TX 78401 361-728-8672 moment, you may miss while asking questions and taking notes.

VI.

Steering into the Skid and Picking the best people for your client

Some of us may have to deal with the challenging task of taking the murder, or the indecency case to trial. These cases are always difficult because, depending on the facts of your case, you may need to be aggressive with a witness or multiple witnesses. Voir Dire is useful in dealing with this issue. If I know that I may need to get in someone’s face during a cross or call an officer out about what they did or, often, did NOT do, then I will simply ask the jury what they would want me to do if they were sitting in my client’s shoes? For example, I have used the following questions when talking with a jury to get their “permission” to be more aggressive.

Q: “Who here has ever sat where my client is sitting?”

Q: “If you were sitting where my client was sitting, charged with the offense that he is charged with, would you want your attorney to ask questions?

Q: “You would want them to ask those questions even if it may make someone uncomfortable, right?

Q: “I am not here to make anyone uncomfortable, nor am I here to harass anyone, but there may be some hard questions that I need to ask a witness, and it may seem unpleasant. Is there anyone that has an issue with me doing that?”

Getting the permission from the jury during Voir Dire establishes the fact that our jobs are hard, and we are not politicians that can be friends with everyone. This tactic can also be effective if you are dealing with a prosecutor that you know always does some objectionable stuff. I tell them right out the gate that I may need to object to stuff that the Government says or does; something that a witness may say or try to say; or any number of other reasons. These objections are not to delay or make everyone want to throw something at me—a little humor does not hurt if done correctly.

Other times, we may be left to deal with difficult panelists. One of the toughest aspects of our jobs during Voir Dire is having a panelist that just does not want to be selected and looked up on the internet how to get removed, having a member of law enforcement that is a true believe, or even someone like the President of Mothers Against Drunk Driving on the panel during a Voir Dire. How do we best deal with these issues without interrupting our selection process?

The first thing that needs to be done is to identify these problems. This can be achieved early on in the process by looking at the jury cards that are given, at least in my jurisdiction, and looking for key factors.

These factors will be very dependent on the type of case you are taking to trial. Below are examples of what you might want to look for based on a few of the most common trials we see: •

DWI o Members of Mothers Against Drunk Driving

Seeking the Truth: Voir Dire Mario A. Olivarez 413 N. Tancahua St, Corpus Christi, TX 78401 361-728-8672

•

•

o TABC members o People who work in Lab’s o People who do not drink alcohol o Police Drug Offenses o Police o Older members of the panel o Teachers o Administrators o Employers Domestic Assault o Victims of Domestic Assault o Parents o “White Knights”

Now, some of these are apparent why one would not want them on a jury and why you should eliminate them from the onset. But how long should you engage in questions with someone that you might not want?

Generally, I recommend stopping the engagement as soon as you know a potential juror is not someone you want one your jury; however, it may be useful, sometimes, to use them to help illustrate a point. For example, I once had a police officer on my panel and I used my example from above of the Salem Witch Trials and asked, “Who here would have convicted someone of being a Witch with what we know?” and that officer said that he would. The theory of my case was poor police work, so, in this case, I continued asking him questions that should how unreasonable he was, especially since I knew the rest of the panel knew that he was an officer. By knowing my audience, knowing my case, and knowing what I wanted to show during the trial; I was able to use this to my advantage. I was not planning on engaging

that officer when I saw him on my jury list, but based on that one question, I knew that I should. Now that does not always work, most times, you need to know when to bail on a line of questioning. Knowing when to bail, is a case-by-case basis and requires you to know your case well and know it better than the Government.

VII.

Conclusion

Choosing a jury is one of the most crucial, if not the most crucial, aspects of going to a trial. You do not want to sleep through the process or just assume that the State will pick up the slack for you when asking questions. You need to do the work, put in the time, and frankly care, if nothing else, that your client has entrusted this task to you.

As I mentioned earlier, no two attorneys will ever have the same Voir Dire, at least I hope you don’t, because that means that you are copying someone else and that you just don’t care. Make Voir Dire an extension of your personality and make it your own. Each one of us has unique characteristics that cannot be matched by someone else. Whether it is being the book smart law review type, the “please excuse me, this is my first trial” type, the storyteller, or something I have yet to see.

When you organize your Voir Dire to a method that works for you, then you will better be able to effectively use your strikes.

You will be able to quickly and efficiently lodge any potential Batson challenges, and, more importantly, you get the list first to the Court and maybe pressure the Government into rushing into a mistake.

Texas Criminal Defense Lawyers Association

Journey to Justice

January 27, 2023 Hilton Waco 113 S. University Parks Dr. Waco, TX 76701

Topic: Preparing for the Journey | Pre-Trial Investigations Speaker:

Kyle Therrian

4500 W Eldorado Pkwy Ste 3000 McKinney, TX 75070 (972) 369-0577 Phone kyle@texasdefensefirm.com Email https://www.texasdefensefirm.com/ Website

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

PREPARING FOR THE JOURNEY: PRETRIAL INVESTIGATIONS AND WITNESS INTERVIEWS

KYLE THERRIAN

Rosenthal, Kalabus & Therrian 4500 Eldorado Parkway, Suite 3000 McKinney, Texas 75070 www.texasdefensefirm.com kyle@texasdefensefirm.com (972) 369-0577 (office) (972) 369-0532 (fax)

JOURNEY TO JUSTICE October 14, 2022 Amarillo, Texas

TABLE OF CONTENTS INTRODUCTION.............................................................................................................. 1 OUR ETHICAL OBLIGATION ................................................................................................................ 1

THE CHARGING DOCUMENT, STATUTE, AND PUNISHMENT...................................................3 THE CHARGING DOCUMENT .............................................................................................................. 3 THE STATUTE .................................................................................................................................. 3 PUNISHMENT .................................................................................................................................. 3 ENHANCEMENTS ............................................................................................................................. 3 LAWYERS YOU SHOULD KNOW ........................................................................................................... 4

THE CLIENT ...................................................................................................................5 INITIAL INTERVIEW ........................................................................................................................... 5 DISCOVERY, PLEA NEGOTIATION, AND STRATEGY MEETING ...................................................................7

WITNESSES ....................................................................................................................8 FACT WITNESSES GENERALLY ............................................................................................................ 8 INTERVIEWING ANY WITNESS ............................................................................................................ 8 THE ALLEGED VICTIM ....................................................................................................................... 9 LAW ENFORCEMENT .......................................................................................................................10 STATE’S EXPERT WITNESSES .............................................................................................................10 DEFENSE EXPERT WITNESSES ............................................................................................................10

PHYSICAL EVIDENCE AND THE SCENE ............................................................................... 12 ACT SWIFTLY ................................................................................................................................. 12 VISIT THE SCENE ............................................................................................................................. 12 TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 39.14........................................................................ 13 PUBLIC RECORDS REQUESTS ............................................................................................................. 13 SOCIAL MEDIA ............................................................................................................................... 14 TEXT MESSAGING AND THIRD-PARTY MESSAGING APPS....................................................................... 14 DEFENDANT’S RIGHT TO COMPULSORY PROCESS ................................................................................ 14 IN RE CITY OF LUBBOCK................................................................................................................... 17

Case Study ................................................................................................................. 19

INTRODUCTION “Give me six hours to chop down a tree and I will spend the first four sharpening the axe.”

--Abraham Lincoln

OUR ETHICAL OBLIGATION Be competent. That’s what the Texas Rules of Disciplinary Conduct say. Tex. Disciplinary R. Prof’l Conduct § 1.01. Seems simple enough. If this brevity does not breed clarity, don’t dismay. The criminal defense bar is only responsible for breathing life into the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.

We are told “[t]he Sixth Amendment right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668 (1984). So, what does this mean?

The American Bar Association began promulgating criminal justice standards in 1964.

They describe the duty to conduct an independent defense investigation, which includes evaluating physical evidence, securing expert and investigator assistance, and seeking impeachment evidence. Perhaps one of the most overlooked of these guidelines provides: The duty to investigate is not terminated by factors such as the apparent force of the prosecution’s evidence, a client’s alleged admission to others of facts suggesting guilt, a client’s expressed desire to plead guilty or that there should be no investigation, or statements to defense counsel supporting guilt.

ABA CRIMINAL JUSTICE STANDARDS for the DEFENSE FUNCTION 4—4.1 (4th Edition 2015).

The State Bar of Texas similarly provides guidelines—the “Performance Guidelines for Non-Capital Criminal Defense Representation.” The authors describe the guidelines as a step-by-step guide to what lawyers should do in criminal cases. They remind attorneys that certain actions, like investigating facts before trial, should be considered in every case regardless of funding issues or local

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practice. At the same time, they remind judges and county officials that lawyers have work to do and steps to take that have to be paid for no matter how constrained counties feel about their budgets.

74 Tex. B.J. 616, 620-37 (July 2011).

These guidelines provide the general outline for this paper, but before starting, numbers tend to put things into perspective. The ABA has twice conducted a study focused on determining how much time attorneys should spend rendering effective assistance of counsel. The most recent study concluded the following: a. Misdemeanor cases: 7.9 hours to 12.06 hours; b. Low-level felonies: 21.99 hours; c. Mid-level felonies: 41.11 hours; d. High-level felonies: 69.79 hours; e. Life Without Parole: 200.67 hours; f. Juvenile cases: 19.78 hours; g. Revocation proceedings: 8.47 hours; POSTLETHWAITE & NETTERVILLE, APAC & AMERICAN BAR ASSOCIATION COMMITTEE ON LEGAL AID & INDIGENT DEFENDANTS, THE LOUISIANA PROJECT (2017).

This becomes particularly interesting when comparing these numbers to the fee schedules promulgated under local indigent defense plans. Consider the ADDENDUM to this paper for a breakdown in your own jurisdiction.

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THE CHARGING DOCUMENT, STATUTE, AND PUNISHMENT THE CHARGING DOCUMENT Before we meet with a client and start to triage their legal issues, we need to know how they are being charged or how we think they will be charged. If the charging document is filed, review it. Make sure it adequately alleges an offense and provides sufficient notice as to the State’s theory of criminal conduct. Also be sure to check the constitutionality of the statute (harassment, revenge porn, etc.). You can do this simply by using a simple term and connector search in Westlaw, Lexis, or Casetext. Two keywords are all that is needed: the statute number and the word “unconstitutional.” A prosecutor getting cute or creative in the charging language ordinarily has a correlation to getting it wrong.

THE STATUTE The law isn’t a rumor. I’ve heard other attorneys describe their personal policy as RTDS – read the damn statute. Determine the elements of the offense. Each element is a silo for information derived from client interview, independent investigation, and DA discovery.

PUNISHMENT Determine the range of punishment. Consider whether the charge is a 3g offense for which a judge may not grant probation and parole eligibility is increased from 25% to 50% time (now 42A.054 Code of Criminal Procedure). Determine whether the client has priors which subject him or her to 3g treatment. Also determine whether the offense lends itself to lesser-included offenses. If you think a lesser-included offense applies, consult case law to be certain. It’s an area of law which gets twist into pretzels (for instance trespass is not a lesser of burglary, assault is not a lesser of assault strangulation, offensive contact is not a lesser of bodily injury assault, and so on). The State Bar of Texas’s Texas Criminal Pattern Jury Charges and TCDLA Trial Notebook both outline common lesser-included offenses.

ENHANCEMENTS Consider enhancements alleged in the charging document as well as those the State could file later if you get squirrely. Is the State alleging prior final convictions which will raise the minimum sentence to fifteen years? Twenty-five years? If they did, did they allege it correctly? Are they actually sequential convictions under the law? The legislature intended and prosecutors utilize enhancements to weigh upon your client’s decision-making. Fair or not, it should weigh on their decision-making, and its our duty to make sure they understand how enhancements factor into the plea-or-trial calculus. The Attorney

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General’s Office prepares a fantastic guide on punishment which includes an exhaustive guide to enhancement law. It can be found here: https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/criminal -justice/PenalCode-Offenses-byRange.pdf

LAWYERS YOU SHOULD KNOW Immigration lawyers. Criminal attorneys have an obligation to advise their clients on immigration consequences that are definite or certain to flow from the disposition of a criminal case. You can certainly learn immigration law to ensure that you meet this obligation, or you can have an immigration lawyer or two on call for client referrals.

Parole Lawyers. How can you truly evaluate the State’s plea offer without the benefit of knowing how much time the offer translates to in reality? For clients on the fence about the State’s prison time plea offer, a parole lawyer can be instrumental in avoiding erroneous nothing-to-lose decision-making.

Appellate lawyers. I’ve been hired to sit in trial to spot and preserve appellate issues. I’ve been called by lawyer’s late at night or mid-trial seeking advice on how to argue a legal issue.

Heck, I’ve even been called by judges mid-hearing to get an opinion. Appellate courts have made it incredibly complicated to ensure your client can live to fight another day after things have gone wrong at trial. Have an appellate lawyer on speed-dial. I assure you; they do not mind answering questions—not only is it flattering to be asked, but it is also a form of marketing our practices.

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THE CLIENT INITIAL INTERVIEW Some lawyers use this as an opportunity to quiz their clients on “what happened.” This is not my approach—at least not initially. Our clients are presumed innocent, and we are the lawyers who are going to challenge the State to prove the “what happened.” My practice is to pull a probable cause affidavit for an initial consultation and start from the perspective of “this is what they are going to say.” Clients will naturally start to fill in blanks or correct the record. It also provides a secondary benefit of standing out from most lawyers with whom the client is meeting—you’re the one who had the report already!

Typically, I use the initial interview to accomplish a handful of things: (1) to build a framework with the client for how I intend to approach the case, (2) to gather information about the client as well as close friends of family members, (3) to learn everything my client knows about the nature of the accusation, (4) gather some preliminary information relevant to punishment, such as prior criminal history, mental health, and substance abuse history.

While building a framework, I also discuss jail release with clients who are in custody (including the mechanisms of typical bonds, mental health bonds, examining trials under Article 16, release because of delay under Article 17.151). It is also important to preview the discovery process and what I would typically expect in discovery production, plea negotiations, and the anticipated timeline for the case. Out of the gate, I also identify the decisions which belong to the client in the criminal process: how to plea, judge or jury trial, testify or not, and judge or jury for punishment.

Gathering client background and biographical information can be handy both for administrative concerns (bond, locating client in an emergency, obtaining records) and for potential investigative leads on punishment evidence. Here is a list of things to consider when gathering information about the client.

▪ When and where born?

▪ Immigration status?

▪ How long at present address?

▪ Married?

▪ Children?

▪ Family members?

▪ Friends and acquaintances?

▪ Employment history?

▪ Medical / mental health / substance abuse history?

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▪ Education?

▪ Criminal history?

▪ Military record?

▪ Membership in church or civic organization?

▪ Volunteerism?

▪ Hobbies and interests?

▪ Dreams and goals?

▪ Financial situation (can they post bond)?

▪ Current parole or probation status

When it comes to the client’s friends-and-family network, it is also important to lay down some ground rules about communication. Identify the individuals with whom the attorney may discuss representation and what can the client expect with regard to attorney-family communication practices. I typically ask the client to choose a single representative with whom the attorney will give process/administrative updates.

Using a foundation-building approach as opposed to an inquisitorial approach in the initial client interview lends itself to better rapport building. Depending on the type of case, often clients are content to just hear about the process and strategies for resolving cases generally.

Of course, this is not always true; and when you can’t get your hands on a probable cause affidavit or offense report, you must ask questions. In these situations, I use non-accusatory questions to help develop my understanding of the case: ▪ What is it they are saying you did?

▪ Do you know what they found?

▪ Were you interviewed, what do you remember saying?

▪ Do you know what ______ witness might have said?

▪ Were tests conducted?

▪ Do you know where they found ______?

▪ Who was there?

▪ Did the officer tell you why he or she pulled you over?

This is generally everything I seek to accomplish in an initial consultation. But for clients in custody, I have one final step: jail etiquette. A discussion on what to do and what not to do while in jail is crucial. I discuss the jail’s policy on recording phone conversations, mail, and the State’s use of jailhouse snitches. I also discuss programs that are offered in the jail

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should the client wish to start a potential punishment resume. This always comes with two important admonishments: do not admit guilt if asked to do so as part of any program, and a recognition that the State has access to any program an inmate attends.

DISCOVERY, PLEA NEGOTIATION, AND STRATEGY MEETING The follow up to the initial consultation is the discovery meeting. We have the State’s discovery, we’ve analyzed that discovery, we may have started some independent investigation. But now it’s time to drill down on the “facts.” During this meeting I explain exactly how I believe the State would present their case if the case went to trial. I explain the areas of opportunity for the defense. I ask the client what areas he or she believes need further investigation, where the State’s case is off-base, and potential areas for further mitigation evidence. At the end of this meeting, the attorney should have a better understanding of what direction the case might be headed in terms of plea or trial, as well as an idea of what stones still require turning.

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WITNESSES FACT WITNESSES GENERALLY Your list of potential witnesses is derived from the State’s discovery, those mentioned by your client, or those mentioned by another witness.

Frequently we rely on recorded statements of witnesses (written or video recorded) obtained during law enforcement investigation. When we do this, we do so potentially at our client’s peril. Sometimes officers will dictate a statement to witnesses, other times information relevant to your client’s defense was not a subject of inquiry. But, perhaps most importantly: stories change.

Chasing witnesses can sometimes be a daunting task. If you’re lucky the offense report lists witness phone numbers, and all of those phone numbers still work. But often lawyers find themselves searching Google and Facebook trying to locate the characters in your client’s case. With enough identifiers you can take your investigation to the next level by using Westlaw, LexisNexis or PublicData.org to find addresses and phone numbers.

I forget at what point reading a similar paper for the first time in my career I thought “how the heck am I going to find time to do all of this all of my cases?” I can assume this was about the spot since I am already thinking of the advice I can give on how to ease the burden.

Witness investigation is a fantastic area to start thinking about investigator services. Their services cost less to your client than yours do and in court-appointed cases they are free.

An investigator is part of the “basic tools of an adequate defense” (see Ake v. Oklahoma below) and they are specifically included as part of the expenses the court must reimburse under Texas Code of Criminal Procedure Article 26.04(d).

INTERVIEWING ANY WITNESS Not only does the use of an investigator help ease attorney workload, but it is also the best practice for witness investigation. At a minimum witnesses should be interviewed with a third-party present. The benefit of following this approach is in impeachment. As an attorney, you cannot impeach a witness on the stand with what they told you personally.

But, should a witness testify inconsistently with a prior statement they gave to a person on the defense team, the rules of evidence permit you to sponsor your witness to impeach and contradict the present testimony of the witness at trial. Some additional thoughts to keep in mind when interviewing a fact witness:

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▪ Texas is a one-party consent state as it relates to recording conversations. That means, as long as someone consents to the recording, record away.

▪ Prosecutors typically don’t follow best practices in this area. They often contact witnesses directly, make themselves fact witnesses, and potentially conflict themselves out of prosecuting the case when they are the only witness capable of impeaching their own witness at trial.

▪ Ask for affidavits. They are useful at trial should a witness testify inconsistently.

They are also useful in negotiations with the prosecutor.

THE ALLEGED VICTIM Not only is it appropriate to contact an alleged victim – it can sometimes be crucial to representation. It’s not unusual to hear from a victim that they contacted the district attorney’s office on multiple occasions to no avail. Certainly, there will be victims who want nothing to do with your client or your client’s attorney. Setting these scenarios aside, a victim can have information that is helpful in a variety of ways, including: exculpatory or statements, recanting accusations, and punishment mitigation. Even when the victim remains firm in his or her accusation, they may have strong opinions on a number of topics that could prove helpful to your client, including: ▪ Your client’s character generally (outside of the particular incident); ▪ In family violence cases, the absence of physical, mental, or emotional abuse history; ▪ Any ongoing relationship between the victim and your client after the alleged offense; ▪ What form of punishment, if any, the victim wishes to see in the case; ▪ How a more severe punishment might negatively impact the victim in a manner unforeseen by the prosecutor.

Keep in mind, many prosecutors assume the worst about your client until someone on team-prosecutor convinces them otherwise. This can often be their own victim with whom they have been reluctant to speak. Some additional things to keep in mind when speaking with an alleged victim: ▪ Don’t be a mediator.

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▪ Make certain the alleged victim knows you are not representing him or her, but rather your client and your client’s best interests.

▪ Create an environment conducive to a voluntary statement – your client should not be present, the alleged victim should be offered the opportunity to speak with his or her own lawyer, if providing a written statement allow for privacy.

▪ Do not make assertions about how their statements will impact the case do not provide advice on the usage of “magic words” to get a case dropped.

▪ You can suggest areas of discussion and focus the task at hand, but always emphasize you are only seeking the truth.

LAW ENFORCEMENT For some reason it is quite typical to have a line of communication with law enforcement in federal cases, but rare in state cases. There are few practical reasons to not speak with officers or detectives in a state cases. Among them is the fact that they are more likely to tell you to pound sand. But this is evidence too. Send that officer a certified letter requesting an interview and use that in cross-examination should that officer testify at trial.

STATE’S EXPERT WITNESSES Although science can be twisted by either party, it is far less susceptible to twisting than lay-witness testimony. Scientific evidence is ripe for defense-favorable concessions, and most experts love to talk your head off about their field of expertise. Not only can you develop facts favorable to your client through the State’s expert, but you can also educate yourself and get a roadmap of how to counter the State’s scientific presentation.

When I file a letter of representation, I always file and send to the district attorney a discovery request. That request for discovery includes a request for “the name and address of each person the State may use at trial to present evidence under Rules 702, 703, and 705 Texas Rules of Evidence.” This will not only help you acquire the information needed to contact the expert, but in cases of the State failing to provide such information within 20 days of trial, you can move to exclude that expert pursuant to Texas Code of Criminal Procedure Article 39.14.

DEFENSE EXPERT WITNESSES Rule of thumb:

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If you don’t understand it, you probably won’t be able to explain it; if you can’t explain it, then the State’s expert will.

Another rule of thumb: If you lost the argument on a phone call with the expert, then you will probably lose that same argument at trial.

These are just a couple of scenarios where seeking the assistance of an expert witness might become necessary. Sometimes a consulting expert can prove useful in forming the defensive strategy or simply helping the attorney decide what kinds of experts are necessary. In terms of consulting, I have used specialized nationwide listservs, feedback from other lawyers, and even a consultant who is a nurse specializing in helping lawyers find the right medical experts in a case: Wolf Legal Nurse Consultants.

Whether your client is court-appointed or retained, lack of funds cannot be the reason to forgo expert services. Under Ake v. Oklahoma, even a lawyer retained to represent a criminal defendant must make an application for funding an expert witness. 470 U.S. 68 (1985). To make the necessary showing for indigent funding, the defendant must show (1) inability to pay, (2) expert assistance is significant factor in guilt/innocence or punishment, (3) legally admissible evidence, (4) qualified expert, (5) estimate of fees, (6) that the lawyer and client are not sufficiently knowledgeable in the area they are seeking assistance.

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PHYSICAL EVIDENCE AND THE SCENE ACT SWIFTLY The Code of Criminal Procedure permits defense counsel to inspect physical evidence.

However, the Code may not provide a mechanism to acquire the evidence until after the case is filed. You can try to subpoena evidence before the case is filed, but you will have to get creative – as there is no cause into which counsel can subpoena witnesses and evidence (see below Texas Code of Criminal Procedure – Subpoenas). On top of this, district attorney offices frequently argue that Article 39.14 Code of Criminal Procedure is the sole mechanism for defense discovery (that a subpoena duces tecum by the defense is unenforceable; compliance is on a voluntary basis).

If you encounter any of these roadblocks, then your recourse is to: (1) make a record with your Article 39.14 request directed to the district attorney, and (2) send to relevant witnesses a spoliation (preservation) letter. These letters are especially important in the case of evidence which is subject to routine destruction, for example: ▪ Video recording at a local business ▪ Home security camera footage of a private individual ▪ Bodycam of dash cam footage from related but non-arrest event ▪ News footage (whether it aired or not).

VISIT THE SCENE Don’t rely on what you can see in photographs and video footage contained in the discovery. Go to the scene yourself under conditions similar to that of the time of the incident. See it from your client’s perspective. Bring an investigator for any evidence you would like to collect and introduce.

▪ Look for video cameras ▪ Measure distances ▪ Take pictures and video

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▪ Determine how well witnesses could observe Sometimes Google Earth can serve as a good substitute for visiting the scene. I use Google Earth frequently in motions to suppress (check posted speed limit, show curvature of the roadway, etc).

TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 39.14 Article 39.14 requires production by the State upon request of the Defendant of evidence “material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the State.” This means evidence which has a “a logical connection to a consequential fact” or that is “relevant.” Watkins v.

State, 619 S.W.3d 265 (Tex. Crim. App. 2021). To this attorney, it also means the probation file and the original discovery in any motion to revoke probation or petition to adjudicate guilt. See Sopko v. State, 637 S.W.3d 252 (Tex. App.—Ft. Worth, 2021). A few finer points with regard to 39.14: ▪ Motions and orders are not required. I send a letter directly to the DA. I file the letter only to prove service upon the prosecution.

▪ Always ask for disclosure of State’s experts in your letter. I also object to chain of custody and certificate of analysis affidavits. This puts the State on notice and can lead to the trial court striking evidence much later at trial when the prosecutor fails to keep good track of what you sent them during the pendency of the case.

▪ The trial court’s equitable remedies under 39.14 are largely discretionary, so don’t hide behind the log. If there is something specific you believe you are entitled to, but have not been provided, be explicit and do so in writing. The goal is to document an intentional refusal or reckless disregard to your request. It is hard to convert the prosecution’s negligence into a discretionary sanction.

PUBLIC RECORDS REQUESTS Other offense reports, calls for service, EMT reports, crime lab records, police agency procedures and manuals, inventory policies, and TCLEOSE records. If it’s in the hands of the government, all you have to do is ask. If they say “no,” put it into a supplemental 39.14 request.

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SOCIAL MEDIA Check witnesses for inconsistent statements or matters reflecting on credibility. Do not make a friend request. If it is not readily accessible – pass it to your investigator. If your client or an individual who is friendly to the representation is receiving social media information from a witness or complainant, have them print relevant information or have your investigator assist.

TEXT MESSAGING AND THIRD-PARTY MESSAGING APPS Cell phones can be as much of a gold mine for the defense as it can be for the police. If a witness or alleged victim is concocting a story about your client, there is a reasonable possibility it will be borne out in their text messages (cell phone messages, WhatsApp, Signal, Facebook Messenger, etc.). There is nothing prohibiting a defense subpoena to obtain these materials. Only one of three things will happen: (1) nothing useful, (2) very useful information, (3) the witness deletes everything. The last two scenarios are criminal defense gold.

Be prepared for the prosecutor’s attempt to fight back. There is a form motion to quash defense subpoena in circulation and it advances a prosecution argument that criminal defendants are limited to Article 39.14 as their sole mechanism for discovery. This is flawed on a number of bases—consider the discussion below in In re City of Lubbock, No. 07-210070-CV (Tex. App.—Amarillo, Sep.2, 2021)(not designated for publication)(mandamus granted by Court of Criminal Appeals in WR-93, 137-01).

DEFENDANT’S RIGHT TO COMPULSORY PROCESS In September 2019 the following appeared in the Texas Bar Journal: The Cellphone provides access to a wealth of information about its user.

With the right tools and procedures, data can be extracted from the phone that provides a complete profile of its user with evidence to either incriminate or exonerate the defendant in civil or criminal cases. *** What can be extracted from the phone? Following is a list relevant to legal cases.

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▪ Website search terms, bookmarks and browsing history; ▪ GPS location history with mapping ▪ Accessed Wi-Fi networks with connected time and date; ▪ Accessed cell towers with connected time and date;

▪ Saved passwords— email, web; ▪ Saved credit card payment info; ▪ Recent calls— received, dialed, and missed with time and date; ▪ Contacts (internal phone memory as well as SIM card); ▪ asks and to-do lists

▪ Bluetooth pairing history; ▪ Application data including stored login (username/password ), e.g., Facebook, Twitter, Instagram; ▪ Calendar events;

▪ Text and email messages; ▪ Pictures and wallpapers; ▪ Ringtones and music; ▪ Videos and movies;

82 Tex. B.J. 570, 578 (September 2019).

Though the article frames the benefit to the defense in terms of what may be found on the defendant’s phone, the argument applies equally to witnesses and alleged victims. The Sixth Amendment guarantees the ability to seek this information: In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him; to have compulsory process for

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obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. Const. Amend VI. The most famous and historical example of the use of compulsory Due Process was the trial of Vice President Aaron Burr who subpoenaed documents of the President – Thomas Jefferson. Chief Justice John Marshall cited the 6th Amendment ruling in favor of Burr.

The Code of Criminal Procedure is similarly broad: Art. 24.01. ISSUANCE OF SUBPOENAS. (a) A subpoena may summon one or more persons to appear: 1) before a court to testify in a criminal action at a specified term of the court or on a specified day; or 2) on a specified day: A. before an examining court; B. at a coroner's inquest; C. before a grand jury; D. at a habeas corpus hearing; or E. in any other proceeding in which the person's testimony may be required in accordance with this code.

Art. 24.02. SUBPOENA DUCES TECUM. If a witness have in his possession any instrument of writing or other thing desired as evidence, the subpoena may specify such evidence and direct that the witness bring the same with him and produce it in court.

Tex. Code Crim. Proc. Art. 24.01 and 24.02.

Logistically, the best practice is to issue a subpoena duces tecum for a discovery hearing, pretrial hearing, or arraignment or appearance. You can either request the witness to

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produce certain files or produce a phone and or computer device for extraction with your investigator at that setting.

Understand that there will be push back. Certainly, from the prosecutor and probably from the judge. The best argument against this form of discovery is that compulsory process is not “absolute.” Taylor v. Illinois, 484 U.S. 400 (1988). You should expect that any utilization of subpoenas and subpoenas duces tecum for purposes of harassment and embarrassment will be promptly rightly thwarted. But you should also expect the state to argue harassment and embarrassment in the case of any legitimate use of a subpoena duces tecum directed at a victim or state witness. You can be prepared to head this off in two ways: (1) having a general idea of what it is you hope to find (think like a cop getting a warrant for the digital evidence), and (2) suggesting an in camera inspection by the trial court and ruling on what evidence is responsive to the legitimate areas of inquiry of the defendant.

IN RE CITY OF LUBBOCK This case may soon shape the landscape for defense investigation in Texas. It has a complicated procedural history. The Amarillo Court of Appeals has already issued an unpublished opinion in favor of the defense and the defense’s ability to conduct an investigation through ex parte judicial orders, That is in Cause No. 07-21-0070-CV. It appears the State filed a writ of mandamus directly to the Court of Criminal Appeals in WR-93-137-01 which should ultimately result in a published opinion. The Court seeks to address whether a criminal defendant is limited to the mechanisms contained in the Code of Criminal Procedure when seeking discovery from a third-party witness. Specifically, the State seeks to limit citizens to Article 39.14 requests and subpoenas duces tecum and prohibit the use of ex parte judicial orders compelling the sealed production of evidence (in this case held by the City of Lubbock). Here is what is happening: The defendant in a pending child sexual assault case had a theory that another witness in the case had influenced complainant to make false allegations. The defendant sought records of the third-party witness’s own false allegations. Instead of making a discovery request or seeking a subpoena, defendant sought an ex parte order from the trial court to command the City of Lubbock / Lubbock Police Department to produce records regarding the witness “including but not limited to: records where she was reported to be a child victim of sexual abuse.” The trial court issued the requested order with instructions prohibiting the city from disclosing the existence or contents of the order to the State or any other person. The city objected to the ex parte nature of the order and the trial court held a hearing to consider their arguments against production. At that hearing, the trial

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court conducted an in-camera inspection of records at the request of the defendant. After inspection, the trial court persisted in its order.

The Amarillo Court of Appeals ruled in favor of the defendant. The Court explained that a defendant has a constitutional right to investigate without exposing his defensive theories or the nature of his investigation to the State. The tools for discovery under the Code of Criminal Procedure do not always permit for such an investigation. In Ake v. Oklahoma, 470 U.S. 68 (1985) (and in its progeny) the Supreme Court held that criminal defendants have the right to the basic tools essential to their defense and may request assistance from the court ex parte to maintain the confidential nature of representation and to avoid disclosing defensive theories. For the same reasons articulated in Ake, the law permits the trial court to issue an ex parte order compelling a third-party to produce discovery.

These were the same arguments taken up by the Court of Criminal Appeals on mandamus.

I don’t usually geek out on watching oral arguments, but these ones are interesting: https://www.youtube.com/watch?v=54jrOZj3bUk

Preparing for the Journey: Pre-Trial Investigations and Witness Interviews

18

CASE STUDY I learn by doing and by watching others do. I learn even more by doing things unconventionally—it’s fun, it drives everyone nuts, and when it works you just get a warm feeling about being a lawyer.

It’s kind of a small potato case but I think it has broader applications. A family comes into my office for their son held in custody on a $100,000 bond, no indictment. He is there on only his third ever domestic violence accusation (strangulation this time). With a healthy smattering of other priors, he is far from the posterchild for low bond amounts or the presumption of innocence (despite his entitlement to it). Still, mom and dad are sure he didn’t do anything wrong.

This is where I wish I could use this anecdote as a story about how after a decade of practice I am still not jaded, but it wasn’t until I read the probable cause affidavit that I started to think: maybe there’s something here. A 45-day delay in reporting, purported witnesses to the offense denying an offense occurred, and some mild skepticism read between the lines written by the reporting officer.

Somewhere between suspicion and intuition is my trigger point for action. So next I called the investigator. We line out the characters and identify evidence for follow-up. While the investigator got to work on evidence collection, I got drafting. I drafted a writ of habeas corpus requesting bond reduction coupled with a demand for examining trial (to challenge the State’s evidence)(see Tex. Code Crim. Proc. art. 16.01). The combined hearing gave us an opportunity to demonstrate to the prosecutor the strength of the State’s case before that case hit the conveyor belt of grand jury justice. Our investigator uncovered for the court text messages from the complainant suggestive of a false accusation, videos from the victim suggestive of a false accusation, and subpoenaed a witness who could corroborate that the State’s case was premised on a false accusation.

After eight hours of investigation time and a one-hour hearing, not only did we accomplish a $95,000 bond reduction, but we may have stopped the snowball of a criminal prosecution from rolling down the hill and picking up momentum.

Preparing for the Journey: Pre-Trial Investigations and Witness Interviews

19

Amarillo Adendum

Armstrong, Potter & Randall District Court and County Court Plan Attorney Fee and Expense Payment Process for Adult Defendant Appointments Effective: January 1, 2022 A. FLAT FEE SCHEDULE FOR PLEAS OF ORIGINAL MATTERS * In a final Attorney Fee Voucher, an attorney may seek payment on a flat fee basis as follows: $200 No charge accepted

$500

Misdemeanor/State Jail Felony

$700 3rd Degree Felony

$1000

2nd Degree Felony

$1500 1st Degree Felony Consider this under the ABA Study on minimum hours for effective assistance Misdemeanor cases: 7.9 hours to 12.06 hours; Under Potter County Plan $500 flat $63/hour

Mid-level felonies: 41.11 hours; Under Potter County Plan $1000 flat $24/hour

Low-level felonies: 21.99 hours; Under Potter County Plan $700 flat $31/hour

High-level felonies: 69.79 hours; Under Potter County Plan $1,500 flat $21/hour

C.

HOURLY FEE PAYMENT PLAN INSTRUCTIONS

An attorney may opt out of the above flat fee schedule and elect to bill hourly under the following guidelines. HYBRID FLAT FEE & HOURLY FEE VOUCHERS WILL NOT BE ACCEPTED. (1) HOURLY RATES: The degree of the criminal offense does NOT determine the hourly rate fee for an individual attorney. Rather, the hourly rate is determined by the highest degree list of criminal cases for which the attorney has been approved and is accepting appointments, to wit: $150.00/hour $100.00/hour $75.00

First/Second Degree List State Jail/Third Degree List Misdemeanor List

Texas Criminal Defense Lawyers Association

Journey to Justice

January 27, 2023 Hilton Waco 113 S. University Parks Dr. Waco, TX 76701

Topic: Staying Mentally Strong for the Journey | Mental Health

Speaker:

Annie Scott

PO Box 218227 Houston, TX 77218 (281) 846-5020 Phone scotta08@gmail.com Email http://www.anniescott.net/ Website

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

Through hundreds of hours of devotion and years of studying, attorneys–both criminal and civil–endure some of the most difficult instances encountered by any high paid professional.

With twenty eight percent of attorneys suffering from depression, mental health has become ever more crucial in discussions of the wellness of lawyers. The topic of such has led to an increased movement among psychiatrists and other wellness specialists to study and analyze the effects that the career has had on lawyers as well as remedies and solutions to such problems.

Mental health is–in simplicity–the wellness of an individual’s state of mind in relation to their emotional, personal, professional and spiritual aspects of life. In turn, in order to remain healthy, every individual must find ways to address and improve their standards of living to attain the best possible lifestyle catered to benefitting their mental health. Throughout the United States population thirty-one percent of Americans suffer for anxiety, sixteen percent from depression, eight percent from PTSD, three percent from psychotic disorders and two percent from dementia.

Within the attorney community alone, an astounding one-third of all practicing lawyers face one of these five mental health disorders. Thus, the issue of mental health has been crucial in the life of lawyers and must be taken into consideration throughout their life practices. Despite the severity of mental health among the legal community, the subject matter has remained rather taboo–even though over the last decade mental health discussions have become more socially acceptable.

With attorneys facing the third highest suicide rate among all other highly paid professionals, it is crucial that such discussions become more common in daily routines due to the impact that components such as law school and the intensity of the career may bring about.

Furthermore, the effects of mental health can influence the lives of every individual drastically different than other. The process of enduring and combatting mental health disorders ranges widely for every individual which is why–as an attorney–it is crucial to remain

conscience of what each mental health disorder may entail and how these problems can be resolved. The consensus among specialists of the American Bar Association have agreed that mental health disorders become an issue in an individual's life before visible symptoms and behaviors begin to occur. In the instances of anxiety and depression, common alterations in behaviors may appear as a loss of appetite, erratic sleep habits, fatigue, headaches, and inability to focus or sudden mood swings. The impact that such common illnesses can have on an individual are beyond harmful to the well-being and career of the individual. Therefore, it is vital to incorporate components of enjoyment and relaxation that detach us from the triggers.

The ramifications of ultimately avoiding the maintenance of an attorney’s mental health may impede performance in the courtroom, create work overload and feelings of drowning in their career. Additionally mental health issues can result in personal drawbacks within personal relationships and activities causing a decrease of interest in usual outlets of enjoyment.

Mental health will forever remain a subject of discussion within society and with time will continue to grow in regularity of discourse. Over time, however, it is vital that the current societal stigmas surrounding the principles of therapy and other remedies for mental health be dissipated due to the limitations they have posed on people seeking help. Often, in communities of color and low-income households, the topic of mental health remains off limits due to the generational custom of ignoring such issues as well as dismissal of methods for help. Over the last few decades, these same communities have had the lowest participation in therapy and other psychiatric outlets for help of which has had a direct correlation with abusive and harmful behaviors within and outside of the household. Additionally, with the ever-growing price of therapy and psychologist appointments the facility of attaining such help has remained limited due to the impracticality for such visits. Some ways for these communities to

better this would be to actively look for financially reasonable therapists that would be able to not only break the stigma surrounding the workings of mental health but also better the living standards of those affected. One common misconception among such communities is that of mental health treatment and illness, of which has caused people to think that therapy is only needed in times of help or crisis. The practice of visiting therapists and psychiatrists is no different than bi-annual doctor visits to maintain your physical health. Mental health is just as vital to an individual's well-being and seeking aid does not imply that an individual is mentally disabled or ill.

Finally, with the severity of mental health in society growing dramatically in recent times, there are a multitude of viable solutions and activities any person can take on in an effort to remain mentally sound. A few simple examples of such that someone could do on their own range from are seeking new hobbies, exploring the surrounding social community, getting a physical to establish any problems an individual may have and creating personal downtime that does not include any career or stress related component. Some additional steps an individual could take would be to seek professional help through therapy or psychiatrist appointments. The State Bar TLAP offers a confidential avenue to seek help if you need help, want help, but can’t afford it, or just want to talk to someone. Regardless of the steps taken by any individual, mental health and its struggles are very real and can be very challenging. This could look different for everyone, but no matter how severe an individual’s case may be, there is always a way out and seeking help makes them a better person physically, emotional, mentally and spiritually.

Please take the first step or help one of your colleagues to do so.

Sources “About Mental Health.” Centers for Disease Control and Prevention, Centers for Disease Control and Prevention, 28 June 2021, https://www.cdc.gov/mentalhealth/learn/index.htm.

“Anxiety Disorders.” Mayo Clinic, Mayo Foundation for Medical Education and Research, 4 May 2018, https://www.mayoclinic.org/diseases-conditions/anxiety/symptoms-causes/syc-20350961.

Inspira Health. “A Look at the Three Most Common Mental Illnesses.”

Https://Www.inspirahealthnetwork.org/, Inspira Health, 26 Sept. 2022, https://www.inspirahealthnetwork.org/news/look-three-most-common-mental-illnesses.

“New Study on Lawyer Well-Being Reveals Serious Concerns for Legal Profession.” American Bar Association, American Bar Association, https://www.americanbar.org/news/abanews/publications/youraba/2017/december-2017/s ecrecy-and-fear-of-stigma-among-the-barriers-to-lawyer-well-bei/.

Sells, Nic. “The 5 Most Common Mental Disorders.” Davis Behavioral Health, 30 Jan. 2020, https://www.dbhutah.org/the-5-most-common-mental-disorders/.

“Top 11 Professions with Highest Suicide Rates.” Factsheet, ZeroAttempts, 2020, http://zeroattempts.org/suicide-professions.html.

Texas Criminal Defense Lawyers Association

Journey to Justice

January 27, 2023 Hilton Waco 113 S. University Parks Dr. Waco, TX 76701

Topic: Using the Right Tools for the Journey | Technology in the Courtroom Speaker:

Thuy Le

440 Louisiana St Ste 900 Houston, TX 77002 (713) 789-8683 Phone thuylelaw@gmail.com Email

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

[Resources for Further Learning] Technology in the Courtroom Practical Uses of Workflow Automation & No-Code Software Development Platforms to Assist in Trial Preparation

Journey to Justice October 26, 2022 McAllen, TX

Presented by: Rocky Ramirez Law & Technology Resource Attorney Bexar County Managed Assigned Counsel 203 W Nueva St San Antonio, TX 78210 210-335-2981 rocky.ramirez@bexar.org

“There were 5 exabytes of information created between the dawn of civilization through 2003, but that much information is now created every two days.”

-

Eric Schmidt, former Google/Alphabet Inc. CEO

“When the companies are hiring people for a data science team, maybe a data scientist or an analyst, or a chief data scientist, the tendency would be to find the person who has all the skills, that they know the domain-specific knowledge. They're excellent in analyzing structured and unstructured data. And they're great at presenting and they've got great storytelling skills. So if you put all this together, you will realize you're looking for a unicorn. And your odds of finding a unicorn are pretty rare.”

-

Murtaza Haider, PhD Associate Professor, Ted Rogers School of Management, Ryerson University, Toronto

2

Contents Free Websites that Teach No-code/Low-code software development ........................................................ 4 Automation Platforms .................................................................................................................................. 5 No-Code/Low-Code Software Development Applications ........................................................................... 6 Paid websites for in-depth learning .............................................................................................................. 7 A step-by-step walkthrough of a Microsoft Power Automate automation.................................................. 8 Podcast discussing the automation of the appointment of counsel in Far West Texas ............................... 9

3

Free Websites that Teach No-code/Low-code software development www.NoCode.Tech An entire curriculum in easy to digest YouTube videos. Start with the fundamentals course. This is probably the best place to start your journey to get your head around all the major concepts as fast as possible.

www.100daysofnocode.com A daily 30-minute lesson that teaches you all the fundamentals of no code development over the course of 100 days. By the end of the 100 days you’ll be pretty advanced and feel very comfortable using NoCode automation.

https://makerpad.zapier.com/getting-started-with-no-code 14 self-paced courses that teach you how to use the most popular automation platform, Zapier. It’s the most widely used and most widely applicable. There is very little you won’t be able to do through Zapier.

A Zapier account requires a monthly fee of $20, which is well worth it when you consider all the time it’ll save.

https://build.airdev.co/bootcamp Once you are ready to start leveling up from building workflow automations to building full scale applications, you’ll want to take this course. Especially if you want to start monetizing your work and building marketplaces or platforms that others can use to make their lives easier.

https://coachingnocodeapps.com You can’t reach peak performance without reaching out to a coach to show you what mistakes you’re making. When you’re ready to start really perfecting your automations and increasing their efficiencies and speeds this is a great, FREE, place to start.

4

Automation Platforms www.zapier.com Everyone should start here for their first automation. In my mind it’s the best out there because it has the most integrations built in.

https://powerautomate.microsoft.com When I was in private practice, I was a Microsoft 365 subscriber, so all the programs I used the most were in that ecosystem. For that reason I probably used Power Automate more than any other integration platform. Same goes for my work now that I am employed by Bexar County. Microsoft has a lot of cons, but it’s just easier for me because they all integrate so smoothly together.

http://ifttt.com This was the OG integration platform. It really excels at connecting the internet of things type devices (smart kitchen, lightbulbs, etc). It’s built around conditional logic, hence the name, If This Then That. I don’t use it at all, but I am probably in the minority.

Automator I’m not a MAC user, but apparently this is how people automate things on a MAC. It is an application, not a website.

Other platforms: https://automate.io www.actiondesk.io https://apifuse.io https://tray.io www.workato.com www.snaplogic.com www.zohoflow.com

5

No-Code/Low-Code Software Development Applications If you want to build a more advanced application for your practice (such as a Voir Dire heatmap application for your tablet) you’re going to need more power under the hood than the API integration tools above. These are the tools you’ll want to check out.

https://powerapps.microsoft.com Power Automate is a subset of the Power Apps platform. Power Apps allows you to build applications and supports those applications with databases through Dataverse (or more powerful Microsoft databases such as exist on the Azure cloud platform). Everything you need to build an application can be found within Power Apps.

www.appian.com The major competitor to Power Apps is Appian. I have spent a lot of time researching this platform because it is used in Bexar County and it is very user-friendly and just as robust as Power Apps.

www.outsystems.com I have never used this platform, but it is #1 on the Gartner Quadrant above Power Apps and Appian so they must do something right.

www.appsheet.com This is the Google low code app builder. I haven’t used it yet, but their pricing seems very reasonable and the platform seems very powerful (it’s Google so that isn’t surprising). I am interested in trying it out.

Other Platforms: www.quickbase.com https://apex.oracle.com www.mendix.com www.pega.com

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Paid websites for in-depth learning https://learning.pragmaticworkstraining.com/ When things really clicked for me with Automation, it was a Pragmatic Works training video that had connected the dots and made it possible. They have tons of free content which should get you to where you need to be, but as you get deeper into the Microsoft ecosystem with Power Apps, Power BI, Power Query, etc., you’ll want to check out the videos they have behind their paywall. Very thorough training videos that are exceptionally well taught. One of my favorites.

https://community.appian.com/ The major competitor with Microsoft for low-code application development is Appian. This is where you go to learn the platform and become an expert. Bexar County paid hundreds of thousands of dollars to a consulting firm to build their invoicing solution, and that firm used Appian to build the application. Wish I had gotten to them first! I could have used a few hundred thousand dollars…

www.codeacademy.com/learn So you’re getting pretty good with no-code and low-code? Well you might as well just learn to code at this point. It’s what I did! This is where I went to start learning.

www.linkedin.com/learing I am late to the party with this learning platform. I just started checking out their courses and they are very well taught. Worth checking out for sure.

www.coursera.org Tons of amazing courses by IBM, Google, etc (not just about Data Science, but about everything). This is where you can go for the big boy certifications that will actually get you hired by data companies. You don’t have to pay for the courses, you can audit every course, you just won’t get a certification. Still requires a monthly subscription though. To be honest, if you’ve read this far into this list, there are probably criminal defense firms all over the country that would be willing to hire you just because you’re willing to take a dip into data science.

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A step-by-step walkthrough of a Microsoft Power Automate automation On October 28, 2021, I gave a presentation on Automation to the then current Texas Opportunity & Justice Incubator cohort (I am a TOJI alumni). In this presentation, I give a step-by-step guide to how I used Microsoft Power Automate to automate the creation of a Notice of Appearance when I received a new appointed client from the Lubbock Private Defender’s Office. *The step-by-step guide starts in the 39th minute.

“Automation in Practice” Texas Opportunity & Justice Incubator – Accelerator W32 Link: https://youtu.be/sxaHvCzG2ho

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Podcast discussing the automation of the appointment of counsel in Far West Texas More details on how the automation in Far West Texas came about. Lots of information on how automation can help to bridge the justice gap in indigent defense.

“How Automation Can Help Public Defense with Rocky Ramirez and Paul Chambers” Public Defenseless Podcast with Hunter Parnell May 18, 2022 Link: https://open.spotify.com/episode/3JLGgvppO678ZrkvPiuZ78?si=4f6f140c6e4f4f3c

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Texas Criminal Defense Lawyers Association

Journey to Justice

January 27, 2023 Hilton Waco 113 S. University Parks Dr. Waco, TX 76701

Topic: Brothers and Sisters in the Walk | Experts & Witnesses

Speaker:

Chris Self

7911 Goldengrove Drive Houston, TX 77379 (713) 274-6942 Phone chris.self@pdo.hctx.net Email

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

Presenting Expert Testimony in Suppression Hearings Chris Self Asst. Public Defender, Harris County, Texas Adjunct Professor, Thurgood Marshall School of Law Introduction When fighting for suppression of evidence, the favorable cases that we defense attorneys most often cite share one common thread: a well-developed record in the lower court. The evolution of policing technology, drug prohibition, pharmacology, and the ubiquity of personal electronics has brought to bear several favorable decisions that we rely on in our practices. However, those same ever-changing areas also create an increased demand on defense attorneys to present evidence on the record explaining that prior precedent cannot be fairly applied to our modern factual scenarios. This presentation is about using expert testimony to inform our record and distinguish the modern policing scenario from those of the past.

Fundamentals: Using the Police Officer’s “Training and Experience” to support your case Preparing to check the evidence on direct examination: Routinely, the government will use officers’ “training and experience” testimony in suppression hearings to shore up explanations to support reasonable suspicion or probable cause. In most jurisdictions, officers are given such wide latitude in bootstrapping things through “training and experience”1 that they feel comfortable saying things that contradict their own training just to help make a case.

Most of us make it standard practice to obtain transcripts of our officers’ prior course training.

We should be making public information/open records requests for the underlying curriculum requirements for the courses these officers on topics that may actually come up during our hearing.

The latitude officers are accustomed to having when describing their training can be reined in by a precise voir dire examination or cross-examination about the actual content of their training courses.

1

See, e.g., U.S. v. Gadson, 763 F.3d 1189 (9th Cir. 2014) (officer permitted to testify as to his interpretation of ambiguous jail call); U.S. v. Garza, 566 F.3d 1194 (10th Cir. 2009) (officer permitted to testify to opinion that nearby gun was used in “connection with” and “in furtherance of” drug trafficking crime); People v. Murphy, 484 P.3d 678 (Co. 2021) (officer permitted to testify about his interpretation of witness’s body language); In re Ondrel M., 173 Md.App. 223 (Ct. Spec. App. Md. 2007) (odor of cannabis); Osbourn v. State, 92 S.W.3d 531 (Tex. Crim. App. 2002) (odor of cannabis); Lowe v.

State, 712 S.E.2d 633 (Ga. App. 2011) (interpretation of slang terms).

The classic example of this that will be familiar to defense practitioners from all jurisdictions is the practice of asking the officer whether they received training from the NHTSA DWI Detection and Standard Field Sobriety Testing (SFST) Manual,2 and then asking pointed cross-examination questions on how the tests are supposed to be performed and what the officer did in this case. This same technique can be applied to any area of officer training if we make a timely request for the materials.

Bring out the opinion testimony that supports your theory: Officers are often trained to expect that we will challenge them on cross-examination on their education and experience and/or the depth of their knowledge.3 This can give us an opportunity with our officers to elicit helpful opinion testimony, providing that we ask some more benign and disarming questions upfront to hide the intention behind our questions.

If we are confident in what the officer’s opinion testimony will be based on his report or prior statements, open-ended questions on the area of “training and experience” we wish to explore can sometimes be disarming at the very beginning of the examination, but of course proceed with caution.4 The transition to traditional, leading cross-examination questions should follow shortly after engaging the officer to maintain control of the narrative.

2

National Highway Traffic Safety Administration (NHTSA), DWI Detection and Standard Field Sobriety Testing (SFST) Participant Manual, NHTSA.GOV (2015) (available online at https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/sfst_pm_full_manual.pdf).

3 NHTSA, The Criminal Justice System: A Guide for Law Enforcement Officers and Expert Witnesses in Impaired Driving Cases, NHTSA.GOV (2007) (available online at https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/guide_law_enforcement_officers_expert _witnesses-impaired_driving_cases-810707.pdf).

4 For an example of this, see Appendix A.

Elicit testimony about sophisticated, expensive, and intrusive policing technology: More and more often, police agencies employ expensive, sophisticated technology to surveil, sweep, and search. Robots;5 flying drones;6 heat-detecting cameras;7 devices that monitor and trace mobile devices;8 devices that scan bank cards, identify the linked accounts and their contents, and even seize funds.9 An intrusion into a constitutionally protected area through the use of police technology constitutes a search, where the technology in question is not in general public use. Kyllo v. U.S., 533 U.S. 27 (2001) (thermal imaging); see also U.S. v. Jones, 565 U.S. 400 (2012) (GPS tracking device attached to vehicle); U.S. v. Lambis, 197 F.Supp.3d 606 (S.D.N.Y. 2016) (cell site simulator). The ubiquity of consumer technology can sometimes blur the lines between what is in general public use and what is not available to most private citizens. For example, many hobbyists enjoy drones with cameras and remote-control software. However, few of these drones have the capabilities of those being used by police, and the cost associated with police drones and other equipment is prohibitive for most consumers.

Police who handle these devices can be invaluable for building the record as to the capabilities of them, special training required to use them, the costs associated with purchasing them, and the restrictions on the sale of some devices to civilians. For example, Electronic Recovery and Access to Data (ERAD) devices for reading banking information are not available for purchase by individuals 5

Mihir Zaveri, N.Y.P.D. Robot Dog’s Run Is Cut Short After Fierce Backlash, NEW YORK TIMES, NYTIMES.COM (Apr. 28, 2021) (available online at https://www.nytimes.com/2021/04/28/nyregion/nypd-robot-dog-backlash.html); Jonathan Hunley, The newest guy on the force? A tactical robot, THE WASHINGTON POST, WASHINGTONPOST.COM (Apr. 9, 2017) (available online at https://www.washingtonpost.com/local/the-newest-guy-on-theforce-a-tactical-robot/2017/04/07/d8b963ee-1b8a-11e7-bcc2-7d1a0973e7b2_story.html).

6 Ken Kalthoff, Drones Give North Texas Police Departments More Police Eyes in the Sky, NBCDFW.COM (Sept.

14, 2021) (available online at https://www.nbcdfw.com/news/local/drones-give-north-texas-policedepartments-more-police-eyes-in-the-sky/2741712/).

7 Rafferty Baker, Thermal-imaging drone footage of police response to shooting at homeless camp raises privacy concerns, CBC NEWS, CBC.CA (Oct. 20, 2020) (available online at https://www.cbc.ca/news/canada/british-columbia/vancouver-police-thermal-imaging-droneoppenheimer-park-shooting-1.5768875).

8 American Civil Liberties Union (ACLU), Stingray Tracking Devices: Who’s Got Them?, ACLU.ORG (Nov. 2018) (available online at https://www.aclu.org/issues/privacy-technology/surveillancetechnologies/stingray-tracking-devices-whos-got-them).

9 All Tech Considered, Device Lets Police Seize Digital Cash, Raises Civil Liberties Concerns, NATIONAL PUBLIC RADIO, NPR.COM (Jul. 2, 2016) (available online at https://www.npr.org/sections/alltechconsidered/2016/07/02/483394735/device-lets-police-seizedigital-cash-raises-civil-liberties-concerns).

not in law enforcement. Tactical robots and drones often have price tags in the five-figure range.

This is all information that is made known to these officers when they are trained to use the devices.

The exclusivity of the technology is often a point of pride that they are more than happy to volunteer in their testimony.

Also, because of the warrant requirement for many of these technologies, police will sometimes use the devices surreptitiously, corroborate their findings with other investigations, and omit mention of the technological intrusion in any affidavit for a search warrant. First, we have to verify the existence of these technologies in our own government’s toolboxes. We should be following the money, sending requests under the Freedom of Information Act10 and its state law equivalents11 to track government contracts for these devices and any training and subscription services. Many of us already make it a regular part of our practice to request officers’ training records.12 If training on these novel technologies is omitted from an officer’s publicly available transcript, we should be making additional requests for the names of officers trained on these technologies once the contracts have been identified in the requests above. Finally, suspected use of technology should always be followed up with pointed discovery requests and exploratory questioning during any preliminary or suppression hearing. Preliminary investigation through open records requests can add teeth to these requests and these questions, adding impeachment material for an officer who may think it safe to play coy.

Exposing such lies by omission in an affidavit in support of a search warrant can reveal a claim under Franks v. Delaware, 438 U.S. 154, 156 (1978), in a case where the warrant appears sound in the absence of further investigation.13 Furthermore, once we have verified that the officer has been trained on the device in question, we can elicit opinion testimony from him to support our claims.14 With the proper preparation, the officer becomes your expert.

10

5 U.S.C.A. § 552.

See, e.g., CAL. GOV'T CODE Title 1, Div. 7, Ch. 3.5 (West 2022); TEX. GOV’T CODE Ch. 552 (West 2022).

12 For example, in Texas these records can be obtained by making a request to the Texas Commission on Law Enforcement at open_records@tcole.texas.gov.

13 See, e.g., U.S. v. Glover, 755 F.3d 811, 817 (7th Cir. 2014) (omission of known, damaging information about informer’s credibility in search warrant amounted to reckless disregard for the truth); Rainsberger v. Benner, 913 F.3d 640, 642-43 (7th Cir. 2019) (detective who omitted exculpatory DNA test results from search warrant denied qualified immunity in § 1983 suit based on Franks violation); 14 Florida v. James L. Thomas, No. 2008-CF-3350A, Suppression Hearing Transcript RE: Harris StingRay & KingFish [testimony of Investigator Christopher Corbitt], p. 13 (2nd Cir. Ct., Leon County, FL, Aug. 23, 2010), available at https://www.documentcloud.org/documents/1282618-10-08-23-2010fl-v-thomas-2008-cf-3350a.html [PDF. p. 13] (last accessed: Feb. 18, 2022).

11

To the end of uncovering these warrantless searches by emerging policing technology, defense attorneys should be encouraged to research comparable state law authorities providing for such discovery requests. For example, Oregon has existing law that requires the state to furnish certain disclosures to defense attorneys as part of the pretrial discovery process. OR. REV. STAT. ANN. § 135.825 provides that, “the district attorney shall disclose to the defense: (1) The occurrence of a search or seizure; and (2) Upon written request by the defense, any relevant material or information obtained thereby, the circumstances of the search or seizure, and the circumstances of the acquisition of any specified statements from the defendant.”15 Even in jurisdictions where statutes and rules do not provide for such discovery, there is federal constitutional authority triggering a prosecutor’s duty to disclose this information. In California v. Trombetta, the Supreme Court held that lost and/or destroyed evidence can rise to a level of a due process violation, where said evidence is exculpatory under a Brady analysis.16 In Arizona v. Youngblood, the Court elaborated that only where such destruction is in “bad faith” does a due process violation exist.17 Years later, in U.S. v. Barton, the Ninth Circuit drew the logical conclusion that where the destruction (i.e. suppression) of such evidence deprives a defendant of his right to impeach the allegations in an affidavit for search warrant under Franks v. Delaware,18 it can rise to the level of a Brady violation.19 We, as criminal defense attorneys in the 21st century, must challenge the police’s omission in affidavits for search warrants of the mention of their use of high-tech search and surveillance technology when it was indeed present. Demanding that prosecutors discover and disclose such practices is one such method of holding the government accountable for these practices.

Experts for Standing Unconventional Property Rights Sometimes, our clients have felony records that prohibit them from securing housing in their own names. In addition to fact witnesses who can talk about client’s residence at a house or apartment, consider calling real estate professionals who specialize in serving clients of lower-socioeconomic status, such as apartment managers or leasing agents (maybe not the ones at your client’s property) to talk about the common practice of people with clear records leasing properties on behalf of a person with a felony conviction. Social workers and other professionals who regularly encounter similarly OR. REV. STAT. ANN. § 135.825 (West 2022).

California v. Trombetta, 467 U.S. 479, 489 (1984).

17 Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

18 Franks v. Delaware, 438 U.S. 154, 156 (1978).

19 U.S. v. Barton, 995 F.2d 931, 934-35 (9th Cir. 1993).

15

16

situated individuals and are acquainted with these informal arrangements can also offer such testimony.

Other times, our clients are “squatting” or adversely possessing properties and have been for some length of time, despite not having record title to the property. Consider calling an attorney wellversed in this area of the law to explain how your client still has standing to challenge a search, even in the absence of traditional ownership rights.

The same can be true of our clients who are living in hotels, but lack government identification and rely on others to book the rooms. An experienced manager of inexpensive hotels will no doubt be familiar with this custom and may help explain this to your finder of fact.

The Modern Party Line: Once upon a time, multiple neighbors would often have to share telephone lines in order to avoid the exorbitant cost of having a private line for a single household.20 This meant that neighbors could listen to other neighbors’ calls and even tie up the phone line and prevent the other neighbor from making calls. This led to legislatures passing laws to prohibit individuals from preventing their neighbors from making emergency calls.21 It also led to confusing pre-Mapp and pre-Katz case law about the use of wiretaps on party lines. See Griffith v. State, 111 So.2d 282 (1959) (finding warrantless wiretap permissible where investigator was defendant’s neighbor and already connected to the same party line). The need for legal clarification on shared telephone lines has returned unexpectedly during the age of ubiquitous personal devices.

20

Look it up, kids. Kara Kovalchik, 10 Aspects of Old Telephones That Might Confuse Young People, MENTAL FLOSS, MENTALFLOSS.COM (Apr. 9, 2015) (accessible online at https://www.mentalfloss.com/article/62876/10-aspects-old-telephones-might-confuse-youngerreaders).

21 S.C. Code Ann. § 16-17-450 (West 2021); Kan. Stat. Ann. § 21-6323 (West 2021); Conn. Gen. Stat.

Ann. § 53-210 (West 2021); N.M. Stat. Ann. § 30-35-1 (West 2021); Ga. Code Ann. § 16-11-42 (West 2021).

Today, our indigent clients with limited resources often share cellular telephones with their parents, significant others, siblings, roommates, and others. These modern-day “party lines” are beginning to raise the same questions about privacy that existed in the first half of the last century.

To prove that our client may have standing to object to a search of a loved one’s phone, we may benefit from social workers or other individuals who are familiar with these arrangements.

Vehicle Ownership: Our clients with credit challenges will often have unusual car purchase arrangements that make it unclear whether they have title to the car. This can cause issues with arguing that client has standing to challenge a search. See, e.g., Bolin v. Commonwealth, 592 S.W.3d 305 (Ky. 2019) (no standing for nonowner driver); State v. Allen, 53 S.W.3d 731 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (same); McKee v. State, 917 P.2d 940 (Nev. 1996).

Specifically, our indigent clients are often relegated to purchasing vehicles from tote-the-note lots, wherein the car lot is also the lender. Some of these lots operate on handshake agreements, issuing fictitious temporary tags and not officially transferring title subject to any liens.22 I have had a number of clients with criminal legal issues resulting from these arrangements, and swift investigation is needed when dealing with many of these fly-by-night outfits. An experienced veteran of the car business, specifically a finance and insurance manager, will be an invaluable resource in explaining to your finder of fact how your client could believe that he has purchased a car and have a reasonable expectation of privacy in spite of his/her lack of documentation.

Banking records: As discussed supra, police are using ERAD scanners to access our client’s banking information from the comfort of their own patrol vehicles. However, banking information is confidential by statute.23 Although there is some negative case law on this issue at present, it does not directly deal with the issue of a person’s actual banking information. U.S. v. Turner, 839 F.3d 429 (5th Cir. 2016) (holding that defendant lacked reasonable expectation of privacy in 100 gift cards which were obvious contraband and not linked with any bank account). An expert witness who is experienced in the privacy practices of banks is a valuable resource to build the record as to what your client expects with

22

Ken Paxton, Buying a New or Used Car, TEXASATTORNEYGENERAL.GOV (accessible online at https://www.texasattorneygeneral.gov/consumer-protection/automotive-scams/buying-new-orused-car).

23 12 U.S.C.A. §§ 3401, 3402, 3403, 3413, 3414.

respect to his account information, and can distinguish debit and credit cards from other types of cards with fewer privacy concerns.

Drug Dogs Amidst the gradual repeal of cannabis prohibition in the United States, there remain a number of drug dogs in jurisdictions where some or all cannabis flower is legal who are still trained to detect cannabis flower. These dogs and their handlers are subject to challenge, but expert testimony about both the dogs and the molecular structure of cannabis itself is required to build the proper record.

The use of drug dogs in establishing probable cause can often prove to be unreliable.24 The attorney can establish the absence of probable cause or reasonable suspicion because dogs alert to all kinds of smells, even from entirely legal sources of those smells.25 Although a canine “sniff test” does not constitute a Fourth Amendment “search”26 absent other circumstances,27 that unprotected categorization is reserved only for “a well-trained narcotics detection dog” that “does not expose non-contraband items that otherwise would remain hidden from public view.”28 It therefore follows that a canine sniff that detects non-contraband items is a “search” and must be supported by probable cause. See People v. McKnight, 446 P.3d 397 (Co. 2019) (holding that sniff by canine trained to detect marijuana—legal in Colorado—was a “search” under the Constitution). Likewise, where a “sniff” reveals the presence of non-contraband items or circumstances otherwise suggest that the dog is unreliable, the “sniff” may not be “up to snuff” and not supportive of probable cause. Florida v. Harris, 568 U.S. 237, 248 (2013) (reasoning that each canine and handler should be evaluated on an individual basis to determine reliability). Indeed, the infallible dog is a creature of legal fiction. Illinois v. Caballes, 543 U.S. 405, 411 (2005) (Souter, J. dissenting); see also Doe v. Renfrow, 475 F.Supp. 1012 (N.D. Ind. 1979) (unlawful strip search of minor child after false alert during canine search at school, where it was later discovered that the child’s own dog was in heat). In jurisdictions where cannabis is even partially decriminalized, more than its mere odor is required for probable cause to search or detain. Lewis v. Maryland, --- A.3d ---, No. 44, Sept.

Term., 2020 WL 4282177 (Md. 2020) (holding that more than the odor of marijuana is required for

24

Jeff Weiner, Police K-9's and the Constitution: What Every Lawyer and Judge Should Know, CHAMPION (April 2012): 22 - 31.

25 Id. 26 U.S. v. Place, 462 U.S. 696 (1983).

27 Florida v. Jardines, 569 U.S. 1 (2013).

28 Place, 462 U.S. at 707.

probable cause to arrest a person and conduct a search incident thereto, where low quantities of marijuana were decriminalized).

Since the passage of the 2018 Farm Bill,29 cannabis sativa L with less than 0.3% delta-9 tetrahydrocannabinol (“THC”) content is legal in many jurisdictions. Even in jurisdictions such as Texas, where cannabis sativa L with greater than 0.3% THC is given the legal label “marihuana” and still prohibited,30 there is no botanical difference between Cannabis sativa L strains with high and lowto no- THC concentration. THC as a molecule is odorless, and the phytochemicals responsible for the odor and flavor of all Cannabis strains—both “hemp” and “marihuana” alike—are terpenes.31 Because “hemp” and “marihuana” have the same terpenes, the odor itself does not necessarily indicate the presence of an illegal substance and therefore is insufficient on its own to support probable cause.32 Here in the trenches, we must obtain the training records for the dogs, elicit expert testimony from the handlers about the fact that they are trained to detect cannabis, and that the dogs give the same signal (either sitting or jumping, depending on the dog) for all substances. To develop the record on legal cannabis flower and its identical odor to illegal cannabis flower, a person trained in cannabis pharmacology is needed as an expert.33 Other Odors Occasionally, an officer will become so bold as to claim that he is trained to detect substances with less distinct or uniform odors than cannabis, such as cocaine. State v. Lloyd, 263 P.3d 557 (Ut. 2011) (officer claimed crack cocaine had “cat urine” smell); Milburn v. State, Nos. 14-12-01059-CR, 1412-01060-CR, 2014 WL 2048415 (Tex. App.—Houston [14th Dist] 2014, no pet.) (search based on strong odor of cocaine).

However, recent studies have shown that the “odors” these officers have attributed to cocaine may have just as easily been one of many other chemical cutting agents, many of which are not

29

7 U.S.C.A. § 121.001.

E.g., Tex. Health & Safety Code § 481.002(26)(F) (citing Tex. Ag. Code § 121.001).

31 Andre, C.M., Hausman J.F., Guerriero, G. Cannabis Sativa: The Plant of the Thousand and One Molecules, FRONTIERS IN PLANT SCIENCE, Vol. 7, issue 19 (2016) (available online at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4740396/).

32 Wilson, Mark D. Law and Odor: Police hazy on how to use drug-sniffing dogs under Texas hemp law, AUSTIN AMERICAN-STATESMAN, STATESMAN.COM (Jul. 12, 2019) (available online at https://www.statesman.com/news/20190712/law-and-odor-police-hazy-on-how-to-use-drugsniffing-dogs-under-texas-hemp-law).

33 I highly recommend Daniel Mehler, an attorney who has a Master’s Degree in Cannabis Pharmacology: https://mehlercannabis.com/.

30

contraband on their own.34 A recent survey of 524 drug samples purchased as “cocaine” yielded 445 samples that consisted of cocaine plus 24 different substances used as dilutants, including: paracetamol/acetaminophen, phenacetine, caffeine, lidocaine, and—in a majority of the samples— levamisole.35 Levamisole, formerly used as a de-worming agent in cattle, is one of the most common dilutants and is not a controlled substance in all jurisdictions.36 An experienced lab analyst or pharmacologist can be of great service in testing these officers’ lay opinions with a more precise explanation of what causes the odors in cocaine samples.

Gangs The law often gives police a long, all-inclusive list of factors which ensnare our clients in being suspected of or documented as being gang members. E.g., Tex. Code Crim. Proc. art. 67.054 (West 2021) (submission criteria for gang database, which includes self-admissions, identification by an “individual of unknown reliability,” evidence of “criminal street gang dress, hand signals, tattoos, or symbols,” evidence that the individual has been arrested with known gang members, visitation of known gang members while incarcerated, and use of the internet to recruit new members).

So many of us have stories of our clients being labeled as gang members based solely on some officer’s interpretation of his/her tattoo, or because of the color clothes he/she put on that morning.

Former law enforcement personnel who look at the gang member identification criteria with a critical eye can be effective at combatting officer testimony using gang-related facts to support probable cause.37 Equal Protection/Racial Profiling An Equal Protection violation occurs when: (1) an official acts with discriminatory intent or purpose38; and (2) the purposeful discrimination has a discriminatory effect39. As an added protection

34

Kudlacek, O., Hofmaier, T., Luf, A., Mayer, F. P., Stockner, T., Nagy, C., Holy, M., Freissmuth, M., Schmid, R., & Sitte, H. H. (2017). Cocaine adulteration. Journal of chemical neuroanatomy, 83-84, 75–81. https://doi.org/10.1016/j.jchemneu.2017.06.001.

35 Id. 36 Tallarida, C. S., Egan, E., Alejo, G. D., Raffa, R., Tallarida, R. J., & Rawls, S. M. (2014). Levamisole and cocaine synergism: a prevalent adulterant enhances cocaine’s action in vivo. Neuropharmacology, 79, 590–595. https://doi.org/10.1016/j.neuropharm.2014.01.002; Solomon, N., & Hayes, J. (2017).

Levamisole: A High Performance Cutting Agent. Academic forensic pathology, 7(3), 469–476. https://doi.org/10.23907/2017.039 37 I have used Maryanne Denner for this purpose: whatsfordenner.com.

38 Veasey v. Abbott, 830 F.3d 216, 230 (5th Cir. 2016) (citing Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-68 (1977)).

39 Arlington Heights, 429 U.S. at 260.

against such conduct, some state statutes prohibit a peace officer from engaging in racial profiling.

E.g., TEX. CODE CRIM. PROC. art. 2.131 (West 2021).

We know that our clients are being profiled and discriminated against because of their background, but the officers’ intent is seldom something we can prove. Suppose your client belongs to a discrete group with distinct characteristics. In that case, a cultural anthropologist or linguist can help explain to your fact-finder how the police were able to identify your client as a member of that group and targeted him/her on that basis.40 Making Sure Your Expert is Heard Our clients have a right to have “ ‘a meaningful opportunity to present a complete defense.’”

Holmes v. South Carolina, 547 U.S. 319 (2006) (quoting Crane v. Kentucky, 476 U.S. 683 (1986)). Just as the government can call their officers to offer lay and expert opinion testimony, we too have a right to present our evidence to rebut those opinions and offer additional opinions to inform the court’s decision.

In Texas, the Rules of Evidence do not apply in suppression hearings, and our notice requirement for expert testimony is in our Code of Criminal Procedure and incorporates the Rules of Evidence by reference. For us, that notice requirement is only triggered by the government’s timely request. The following table provides responses to common objections we hear from prosecutors about expert testimony in suppression hearings: Objection

Response

This is about a simple [traffic stop/consent/PC

The state’s witness has already provided

search] – all this extra testimony is irrelevant.

opinion based on his “training and experience” - we are entitled to rebut.

40

I have used Dr. Jorge Duany to identify the distinct patterns of speech of Cubans as opposed to other Spanish-speaking Latin Americans: https://cri.fiu.edu/faculty/jorge-duany/.

Objection under your rules of evidence (e.g.

Highlight specific qualifications and how the

Federal Rule of Evidence 702) that expert is not

witness can assist the court in making reliable

qualified to render opinion.

findings of fact and conclusions of law, while noting that the rules of evidence do not apply in suppression hearings (if that is how your jurisdiction operates).

Objection to lack of notice, opportunity for

Know what triggers your notice requirement

state to prepare.

and whether the prosecutor has done so. For example,

the

Texas

Code

of

Criminal

Procedure Article 39.14(b) notice requirement not applicable – incorporates the Texas Rules of Evidence by reference, which do not apply in a suppression hearing under Texas law.

Additionally, in some jurisdictions prosecutors do not think to request notice of experts presented at pretrial hearings. Again, using Texas as an example, the failure to request notice is the failure to trigger the notice requirement.

Objection that legal analysis is not an

Hemp/marijuana:

appropriate topic for witness testimony.

testimony about taxonomy and makeup of legal/illegal

Offer

Cannabis

of will

proof show

that that

officer/dog sniff doesn’t support PC / dog sniff for non-contraband is a “search.”

Property rights: whether D has reasonable expectation of privacy is a mixed question of law and fact that cannot be fairly decided without this testimony.

Another challenge we often face is that the judges are unaccustomed to hearing from experts during suppression hearings and will immediately err on the side of excluding the testimony altogether.

We also have the more insidious challenge of having more judges who were formerly defense attorneys and sometimes jump to conclusions about where the presentation is headed based on their own experiences. The following table responds to judges whom sua sponte seek to limit our expert testimony: Judge’s limitation

Response

“This court is very familiar with [concept]

We are not seeking to educate the Court, rather

already and does not need to hear this

to establish [concept] as a factual matter for the

testimony.”

record on appeal.

State’s objection sustained as to entire breadth of

I understand the court’s ruling, and move to

expert testimony.

make an offer of proof of this witness’s proffered testimony. Ask to put the testimony on the record for appellate purposes, even if it has been excluded from consideration by the trial court (called a bill of exception, or “bill” in Texas).

State’s objection sustained as to one question.

May I have the answer for appellate purposes (see above)?

(If denied, add to a list of questions for a full offer of proof/bill of exception/proffer for appellate purposes at the end.)

Court completely fails to see the connection

Make an offer of proof carefully laying out a

between the proffered testimony and any logical

skeletal preview of your argument, noting only

suppression argument (possibly because you

the facts beyond change presented in the gov’t

didn’t show your hand in your motion).

case in chief.

You are being interrupted and cannot get a word

“May I be heard?”

in edgewise?

Conclusion We can all generally agree that the exclusionary rule can be one of the most powerful arrows in the criminal defense attorney’s quiver. However, the development of technology for policing methods and the ever-changing drug laws that each jurisdiction faces provide for a different set of expectations that defense lawyers face when dealing with the modern-day suppression hearing. They create a heightened responsibility for those of us on the front lines to challenge emerging threats to our rights and to galvanize the Fourth Amendment in a world much different than the one in which it was drafted. To represent our clients with the zeal the Constitution (and our personal constitutions) demand of us, it is essential to keep in mind the various avenues that can be taken to create a welldeveloped record in support of our claims. One such method of developing the record is the use of experts to explain changing science, technology, and cultural norms that may not otherwise be understood in a field steeped in antiquated precedent.i i

For a more comprehensive guide to suppression litgation, see Deja Vishny, SUPPRESSING CRIMINAL EVIDENCE (James Publishing, 1st Ed. 2016).

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases.

From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education.

TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas.

TCDLA continues to foster these relationships and develop additional affiliations.

As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

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TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments.

With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form).

Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported.

The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.

Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements.

Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.

Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate.

The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study.

Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases.

While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases.

The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions.

To learn more about this research please visit the study website at http://texaswcl.tamu.edu.

WWW.TIDC.TEXAS.GOV

MARCH 2014

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