Actual Innocence for Lawyers

ACTUAL INNOCENCE FOR LAWYERS SEMINAR INFORMATION Date Location Course Director Total CLE Hours

August 5-6, 2021 Radisson Fort Worth | 2540 Meacham Blvd. Fort Worth, TX 76106 Allison Clayton, Jessi Freud, Gary Udashen, and Mike Ware 12.25 Ethics: 1.75

Thursday, August 5, 2021 Time

CLE

Daily CLE Hours: 5.0 Ethics: 1.0

Topic

Speaker

12:00 pm

Registration

12:50 pm

Opening Remarks

Mike Ware

Update on Legal Issues on Texas Wrongful Conviction Cases

Gary Udashen

Jailhouse Informants

Alexandra Natapoff

1:00 pm

1.0

2:00 pm

Ethics 1.0

3:00 pm

Break

3:15 pm

.75

False Confessions

Steve Drizin

4:00 pm

.50

Falsely Testifying Jailhouse Informants caused the Conviction Joyce Ann Brown

Cheryl Wattley

4:30 pm

.50

Dennis Allen on his Case and Jailhouse Informants & John Nolley on his Case and Jailhouse Informants

Dennis Allen & John Nolley

5:00 pm 6:00 pm 7:15 pm

Break 1.25

Dinner Presentation - Comments & Introduction of Speakers

Elsa Alcala, Lydell Grant, & Anna Vasquez

Adjourn

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

ACTUAL INNOCENCE FOR LAWYERS SEMINAR INFORMATION Date Location Course Director Total CLE Hours

August 5-6, 2021 Radisson Fort Worth | 2540 Meacham Blvd. Fort Worth, TX 76106 Allison Clayton, Jessi Freud, Gary Udashen, and Mike Ware 12.25 Ethics: 1.75

Friday, August 6, 2021 Time

CLE

Topic

Daily CLE Hours: 7.25 Ethics: .75 Speakers

8:15 am

Registration & Continental Breakfast

8:50 am

Opening Remarks

Allison Clayton

9:00 am

.75

Eyewitness Identification

Laura Smalarz

9:45 am

1.0

Cell Phone

Jerry Grant

10:45 am 11:00 am

Break 1.25

12:15 pm

DNA

Angie Ambers

Lunch Line

12:30 pm

Hon. Barbara Hervey

.50

Lunch Presentation: Training Opportunities & Other Topics of Interest to Defense Lawyers Forensics Science Commission Overview

1:30 pm

1.0

Bloodstain Pattern Analysis & the Joe Bryan case

Celestina Rossi

2:30 pm

.75

Innocence Deniers

Lara Bazelon

.50

3:15 pm

Break

3:30 pm

.75 Ethics

4:15 pm

.25

Update on Work at IPTX

4:30 pm

.5

Closing Remarks & the Tim Cole Case

5:00 pm

Mark Daniel

Ethics & Prosecutorial Misconduct

Russel Wilson Allison Clayton, Gary Udashen, Mike Ware & Jessi Freud Cory Sessions

Adjourn

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

Texas Criminal Defense Lawyers Association

Actual Innocence for Lawyers Table of Contents -Speaker

Topic August 5, 2021

Gary Udashen Alexandra Natapoff Steve Drizin Cheryl Wattley

Update on Legal Issues on Texas Wrongful Conviction Cases Jailhouse Informants False Confessions Falsely Testifying Jailhouse Informants Caused the Conviction Joyce Ann Brown

Dennis Allen & John Nolley

Dennis Allen on his Case and Jailhouse Informants | John Nolley on his Case and Jailhouse Informants

Elsa Alcala, Lydell Grant, & Anna Vasquez

Dinner Presentation – Comments & Introduction of Speakers August 6, 2021

Laura Smalarz Jerry Grant Angie Ambers Hon. Barbara Hervey Mark Daniel Celestina Rossi

Eyewitness Identification Cell Phone DNA Training Opportunities & Other Topics of Interest to Defense Lawyers Forensics Science Commission Overview Bloodstain Pattern Analysis & the Joy Bryan Case

Lara Bazelon

Innocence Deniers

Russell Wilson

Ethics & Prosecutorial Misconduct

Allison Clayton, Gary Udashen, Mike Ware, & Jessi Freud Cory Sessions

Update on Work at IPTX Closing Remarks & the Tim Cole Case

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

Criminal Defense Lawyers Project

Actual Innocence for Lawyers August 5, 2021 Radisson Fort Worth 2540 Meacham Blvd.

Fort Worth, TX 76106

Topic: Update on Legal Issues on Texas Wrongful Conviction Cases

Speaker:

Gary Udashen 8150 N. Central Expressway Suite M1101 Dallas, TX 75206 (214) 468-8100 phone (214) 468-8104 fax gau@udashenanton.com www.udashenanton.com

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

7/20/2021

Presented by: Gary A. Udashen Udashen | Anton 8150 N. Central Expressway, Suite M1101 Dallas, Texas 75206 214-468-8100 214-468-8104 fax gau@udashenanton.com

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Free Standing Actual Innocence Claim: Ex Parte Elizondo, 947 S.W.2d 202 (1996) Applicant must show, by clear and convincing evidence, that newly discovered or newly available evidence of actual innocence unquestionably established innocence.

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•

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Newly discovered evidence is evidence that was not known to the applicant at the time of trial and could not have been known to him even with the exercise of due diligence. Brown, 205 S.W.3d 538 Newly available evidence is evidence that may have been known to the applicant but was not available for his use based on factors beyond his control. Calderon, 309 S.W.3d 64

Recantation affidavit that was presented in motion for new trial was not newly discovered or available when presented again in writ application.

Ex Parte Calderon, 309 S.W.3d 64 (2010) • Child victim’s recantation was newly available when it was unavailable to applicant at time of no contest plea • Child’s recantation was made prior to plea but was not available to applicant at the time of the plea.

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• Court must examine the new evidence in light of the evidence presented at trial • To grant relief court must believe that no rational juror would have convicted in light of the newly discovered evidence.

Applies to: • DNA • New Scientific Evidence • Recantations • New Witnesses • Other New Evidence

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Ex Parte Thompson, 153 S.W.3d 416 (2005)

Complainant, daughter of Applicant, provided affidavit and testimony stating that sexual abuse never occurred.  

Trial court found recantation credible Expert witness testimony supported the recantation

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Ex Parte Elizondo, 947 S.W.2d 202 (1996)

Stepson recanted testimony that claimed Elizondo sexually abused him Father of child manipulated him and his brother into making allegations

Ex Parte Tuley, 109 S.W.3d 388 (2002) 

Recantation after guilty plea.

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Actual innocence claims are not barred by guilty plea.

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2015 – 68 out of 157 nationwide were cases where defendant pled guilty.

Complainant’s recantation alone insufficient to prove actual innocence.

Court considers entire record in assessing actual innocence based on recantation, even if recantation itself is credible.

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Newly discovered evidence supported actual innocence claim; eyewitness, who was the only witness to identify petitioner, recanted his identification of petitioner as shooter, two undisclosed police reports identified other possible suspects for the murder, an individual was identified as the source of a previously unidentified fingerprint at the crime scene, and gunshot residue expert stated that she would report petitioner’s test results as negative for gunshot residue under today’s standards.

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Defendant actually innocent of duty to register as a sex offender.

Ex Parte Harbin, 297 S.W.3d 283 (2009)

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Defendant not actually innocent of duty to register as a sex offender Ex parte Wahlgren, 2017 WL 1496966 (2017)

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Cacy convicted of an arson murder based on false lab report that claimed there was gasoline on her uncle’s clothing.

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Trial Court finds Cacy is actually innocent.

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Court of Criminal Appeals Agrees

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   

Kristie Mayhugh Elizabeth Ramirez Cassandra Rivera Anna Vasquez Ex parte Mayhugh, 512 S.W.3d 285 (2016)

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Found actually innocent by Court of Criminal Appeals on November 23, 2016

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Two young girls testified that the four women sexually assaulted them

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One of the girls, now an adult, recants accusations

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Other girl does not recant

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Recantation supported by expert testimony

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State’s medical evidence, that one of the girls had physical signs of abuse, is recanted by doctor based on new science

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“We conclude that now, with this clear and convincing evidence establishing innocence combined with the lack of reliable forensic opinion testimony corroborating the fantastical allegations in this case, no rational juror could find any of the four Applicants guilty of any of the charges beyond a reasonable doubt.”

Court of Criminal Appeals, November 23, 2016

“It has been suggested that the term ‘actual innocence’ is inappropriate because applicants who are successful when raising a claim of actual innocence never truly prove that they did not commit the offense. But when the presumptions are reversed, the State does not have to prove that a defendant is definitively guilty. ...

Those defendants have won the right to proclaim to the citizens of Texas that they did not commit a crime. That they are innocent. That they deserve to be exonerated. These women have carried that burden. They are innocent. And they are exonerated.

This Court grants them the relief they seek.”

Court of Criminal Appeals, November 23, 2016

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Defendant found actually innocent of murder based on DNA identifying the true perpetrator.

True perpetrator confessed.

Multiple eyewitnesses erroneously identified Grant as person seen stabbing victim.

EX PARTE STEVEN CRAIG MALLET, 620 S.W.3d 797 (2021) Defendants found actually innocent of delivery of controlled substance.

Only evidence against the Mallet brothers was the testimony of disgraced Houston narcotics detective Gerald Goines.

Defendant found actually innocent based on newly discovered evidence, including evolution of body of science of bitemark comparisons, undisclosed Brady material and postconviction DNA testing of evidence excluding defendant as contributor.

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Four Defendants Three Pled Guilty to Sexual Assault One Found Guilty of Capital Murder Insufficient evidence supported finding that habeas corpus petitioners, one of whom was convicted of capital murder and three of whom had pled guilty to sexual assault and had testified against the one who was convicted of capital murder, were entitled to relief under the actual-innocence standard, despite new DNA evidence favorable to petitioners.

The petitioners who had pled guilty, and who claimed that they had been bullied and coerced to confess, had failed to withdraw their pleas when the promises of leniency and threats of the death penalty were no longer on the table, counsel for one of the petitioners could not recall petitioner making any claim that the authorities had forced his confession, and prosecutor testified that he had had no complaints that the pleas had been coerced.

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Online solicitation of a minor statute declared unconstitutional in Ex Parte Lo, 424 S.W.3d 10 (2013)

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Writs granted under Lo are not “actual innocence” findings. Ex Parte Fournier, 473 S.W.3d 789 (2015)

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Fournier actually engaged in the conduct, so no new evidence of innocence.

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The term “actual innocence” only applies in circumstances where the accused did not actually commit the charged offense or any possible lesser included offense.

• Subsequent lab testing on drug case showing no drugs does not prove actual innocence.

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Schlup v. Delo, 513 U.S. 298 (1995) • • •

Actual innocence itself does not provide basis for relief Actual innocence is used as a gateway to raise otherwise barred claims Lower burden on applicant: requires preponderance of the evidence instead of the clear and convincing evidence standard on freestanding actual innocence claim

Art. 11.07, Sec. 4(a)(2), C.C.P. allows subsequent writ when, “by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt.”

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Allowed subsequent writ raising an otherwise procedurally barred ineffective assistance of counsel claim on basis that Allen proved he was actually innocent under Schlup and Art. 11.07, Sec. 4(a)(2)

A person has been exonerated if he or she was convicted of a crime and later was either (1) declared to be factually innocent by a government official or agency with the authority to make that declaration; or (2) relieved of all the consequences of the criminal conviction by a government official or body with the authority to take that action.

As of March 2018 

2,812 exonerations nationwide since 1989

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397 exonerations in Texas since 1989

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Texas has more exonerations than any other state

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Exoneration refers to more than just actual innocence finding

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A person is entitled to compensation if: • He served in whole or in part a sentence in prison, and • He has received a full pardon on the basis of innocence for the crime for which he was sentenced, or • He has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent of the crime for which the person was sentenced, or

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He has been granted relief in a writ of habeas corpus and the state district court has issued an order dismissing the charge and the dismissal order is based on a motion to dismiss in which the state’s attorney states that no credible evidence exists which inculpates the defendant, and the state’s attorney states that he believes the defendant is innocent.

Tex. Civ. Prac. & Rem. Code §103.001 to 103.154

The amount of compensation paid to a wrongfully convicted person under this statute is $80,000.00 per year multiplied by the number of years the person served in prison in a lump sum and the same amount in an annuity for the rest of his life. Tex. Civ. Prac. & Rem. Code §103.052 and 103.053

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The board will recommend the governor grant a pardon on the basis of innocence upon the receipt of: (1) a written recommendation of at least two of the current trial officials of the sentencing court, with one trial official submitting documentary evidence of actual innocence; or (2) a certified order or judgment of a court having jurisdiction accompanied by a certified copy of the findings of fact and conclusions of law where the court recommends that the Court of Criminal Appeals grant state habeas relief on the grounds of actual innocence.

Tex. Admin. Code 37 §143.2

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Inaccurate Eyewitness Identification

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False Informant Testimony

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False Confessions

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Invalid Scientific Evidence

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Ineffective Assistance of Counsel

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False Testimony From State Witnesses

Tillman v. State, 354 S.W.3d 425 (2011) The court held that expert testimony on the reliability of eyewitness identification is admissible.

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“Nationwide, 190 of the first 250 DNA exonerations involved eyewitnesses who were wrong. BRANDON L. GARRETT, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 8-9, 279 (2011). In Texas, reports indicate 80 percent of the first 40 DNA exonerations involved an eyewitness identification error. Innocence Project of Texas, Texas Exonerations-At a Glance (2011), http://ipoftexas.org/index.phd?action=at-aglance.”

Court of Criminal Appeals’ Opinion

Photographic and Live Lineup Procedures Requires every law enforcement agency in state to adopt a written policy regarding photographic and live lineup identification procedures.

Policy must be based on •

Research on eyewitness memory

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Best practices

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Evidence based practices

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Charles Chatman Cornelius Dupree Jerry Lee Evans Wiley Fountain Larry Fuller James Curtis Giles Donald Wayne Good Andrew Gossett Eugene Henton Raymond Jackson EK Johnnie Lindsey Thomas McGowan Steven Phillips

Johnny Pinchback David Shawn Pope Billy James Smith Keith E. Turner James Waller Patrick Waller Gregory Wallis James Curtis Williams James Lee Woodward Billy Wayne Miller Anthony Massingill Michael Phillips Ricky Wyatt

EX PARTE PATRICK WALLER, 2008 WL 4356811 (2008) 

Two men and two women kidnapped and taken to abandoned house where the women are sexually assaulted and men pistol whipped.

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Three of the four victims identified Waller as assailant.

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Fourth victim unable to make identification.

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Waller cleared by DNA.

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True assailant identified by DNA and confessed.

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Ex Parte Johnny Edward Pinchback, 2011 WL 2364318 (2011)  

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Two teenage girls sexually assaulted.

Girls later saw a man in apartment complex parking lot they thought was the assailant.

They picked Pinchback’s picture from photo lineup.

Pinchback convicted and received 99 years in prison.

DNA proved that Pinchback was innocent.

Suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Brady v. Maryland 373 U.S. 83 (1963)

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Opening files of old convictions revealed many cases with withheld exculpatory evidence: - State failed to disclose two police reports that identified two other possible suspects.

Ex Parte Miles, 359 S.W.3d 647 (2012)

State withheld photograph and police report which support defendant’s defense of misidentification.

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Ex Parte Wyatt, 2012 WL 1647004 (2012)

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Stanley Mozee and Dennis Allen Writ Relief Granted January 10, 2018 (2018 WL 345057 and 2018 WL 344332) Mozee and Allen convicted largely on the basis of jailhouse informants.

Informants testify at trial that they had no deal with state, had not asked for a deal and did not expect a deal.

Letters to prosecutor found in District Attorney’s file from informants, written prior to trial, asking when the prosecutor was going to follow through with the deals he had promised them.

Giglio v. U. S., 405 U.S. 150 (1972) Agreement between state and informant for consideration of leniency to informant is Brady material Napue v. Illinois, 360 U.S. 264 (1959) Prosecutor’s failure to correct false testimony from informant that he had received no promise of consideration in return for his testimony violates due process

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Duggan v. State, 778 S.W.2d 465 (1989) No difference between express agreements and “those agreements which are merely implied, suggested, insinuated or inferred.”

Both are covered under Brady and must be revealed.

State failed to disclose that, contrary to the prosecution’s assertions at trial, Brown had twice sought a deal to reduce his existing sentence in exchange for testifying against Wearry. The police had told Brown that they would “talk to the D.A. if he told the truth.”

Corroboration of Certain Testimony Required (a)

A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.

(b)

Corroboration is not sufficient for the purposes of this article if the corroboration only shows that the offense was committed.

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(c) Evidence of a prior offense committed by a person who gives testimony described by Subsection (a) may be admitted for the purpose of impeachment if the person received a benefit described by Article 39.14(h-1)(2) with respect to the offense, regardless of whether the person was convicted of the offense.

Tracking Use of Certain Testimony Requires attorney for the state to track the use of jailhouse snitch testimony, including any benefits offered or provided to a person in exchange for the testimony.

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False confessions are one of the leading causes of wrongful convictions analyzed in a recent report released by the National Registry of Exonerations The Registry reports that the primary reason for false confessions is coercion – occurring in at least 60% of the false confession cases analyzed.

According to the Registry, 75% of documented false confessions occurred in homicide cases.

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Why do innocent people confess?

Some reasons include: • • • • • • • • •

Duress Coercion Diminished Mental Capacity Mental Impairment Ignorance of the Law Fear of Violence Actual Infliction of Harm Threat of Harsh Punishment Promise of Benefit

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Christopher Ochoa, Travis County Sexual Assault and Murder in Austin After lengthy interrogation, Ochoa confessed Another man later confessed DNA matched the other man

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Stephen Brodie, Dallas County Five year old girl abducted from her home and molested Brodie, who was deaf, was interrogated, without a sign language interpreter, for 18 hours over 8 days and confessed Fingerprint found on the window screen matched a convicted child rapist who was suspected in similar assaults Dallas County Conviction Integrity Unit agreed Brodie was innocent and conviction vacated

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Electronic Recording of Custodial Interrogations Requires audio visual or audio recording if audio visual recording is unavailable of custodial interrogation of person suspected of committing certain serious offenses.

QUESTION: HOW SHOULD COURTS RESPOND TO CHANGES IN SCIENCE UNDERLYING CONVICTIONS

Art. 11.073. Procedure Related to Certain Scientific Evidence. (a) This article applies to relevant scientific evidence that: (1) was not available to be offered by a convicted person at the convicted person’s trial; or (2) contradicts scientific evidence relied on by the state at trial:

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(b)

A court may grant relief if . . . : (A) relevant scientific evidence is currently available and was not available at the time of the convicted person’s trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person’s trial; and

(B) the scientific evidence would be admissible under the Texas Rules of Evidence . . . ; and (2) the court . . . finds that, had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted. (c) For purposes of a subsequent writ, a claim or issue could not have been presented in a previously considered application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the exercise of reasonable diligence by the convicted person on or before the date on which the original application or a previously considered application , as applicable, was filed.

(d) In making a finding as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before a specific date, the court shall consider whether the field of scientific knowledge, a testifying expert’s scientific knowledge, or a scientific method on which the relevant scientific evidence is based has changed since . . .

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Ex parte Robbins, 360 S.W.3d 446 (2011)

Court concluded that Robbins “failed to prove that the new evidence unquestionably establishes his innocence.” Actual innocence claim rejected

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Despite all experts agreeing that Dr. Moore’s findings and testimony were incorrect, majority refused relief because none of the experts affirmatively proved that “Tristen could not have been intentionally asphyxiated.” Majority concluded Robbins did not “have a due process right to have a jury hear Moore’s reevaluation.”

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Robbins case reconsidered under Art. 11.073 and relief granted

Medical Examiner’s reconsideration of her opinion was new scientific evidence that contradicted scientific evidence relied upon by the state at trial.

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Relief granted under 11.073 on murder case based on change in body of scientific knowledge in field of bitemark comparisons

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Experts opinions that human bitemarks were unique and an individual could be identified as source of bitemark discredited by new science.

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Relief granted under 11.073 to four defendants, three who pled guilty to sexual assault, and one who was convicted of capital murder

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Y-STR DNA testing results were exculpatory to all four defendants and constitute new scientific evidence

A showing by a mere preponderance of the evidence that an applicant would not have been convicted if exculpatory DNA results are obtained is not sufficient to warrant relief on the basis of actual innocence, but statute governing procedure on new scientific evidence (Art. 11.073) affords an avenue for relief under the preponderance standard.

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Child dies of head injury.

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Henderson says she dropped child.

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Medical Examiner testified that it was impossible for child’s brain injuries to have occurred in the way Henderson stated. Medical Examiner says child’s injuries resulted from a blow intentionally struck by Henderson.

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Henderson submits evidence that recent advances in biomechanics suggest that it is possible that child’s head injuries could have been caused by an accidental shortdistance fall. Additionally, Medical Examiner submitted an affidavit which recanted his testimony.

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Court finds new scientific evidence shows that a short distance fall could have caused the head injury.

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Court finds new scientific evidence did not establish that Henderson was actually innocent but that it did establish a due process violation.

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“. . . scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction.” “. . .dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence.”

In the Matter of M.P.A., 364 S.W.3d 277 (Tex. 2012) 65% accuracy rate not sufficient reliability for admission in evidence.

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Strickland v. Washington, 466 U.S. 668 (1984), test requires Applicant to show: 1.

Counsel’s performance was deficient. Requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.

2.

The deficient performance prejudiced the defendant.

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Due process violated by state’s unknowing presentation of perjured testimony in murder prosecution.

Ex Parte Chabot, 300 S.W.3d 768 (2009)

Expert testimony that there was only one to a million chance that someone other than defendant was source of bitemark on victim’s forearm was false.

1. Evidence was false.

2. False evidence was material to conviction.

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Texas Leads the Country Legislative Actions Art. 2.023 – Tracking of Jailhouse Informants • Art. 38.075 - Corroboration of Jailhouse Informants • Art. 38.075 – Impeachment Testimony Regarding Jailhouse Informants • Art. 2.32 – Electronic Recording of Custodial Interrogations • Chapter 64 – DNA Testing • Art. 39.14 – Michael Morton Act •

Texas Leads The Country Legislative Actions • Art. 38.43 – Retention of Biological Evidence • Art. 38.01 – Forensic Science Commission • Art. 38.20 – Photographic and Live Lineup Procedures • Art. 38.141 – Corroboration of Testimony of Undercover Informant • Art. 11.073 – Writs Based on New Science • Tim Cole Advisory Commission on Wrongful Convictions • Tim Cole Exoneration Commission

Texas Leads the Country Judicial Actions • Compensation For Wrongfully Imprisoned • Texas Criminal Justice Integrity Unit • Tillman v. State - expert testimony on eyewitness identification • Winfrey v. State – dog sniff lineups • Ex parte Henderson – child head injuries • Ex parte Elizondo - actual innocence as ground for writ

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Criminal Defense Lawyers Project

Actual Innocence for Lawyers August 5, 2021 Radisson Fort Worth 2540 Meacham Blvd.

Fort Worth, TX 76106

Topic: Falsely Testifying Jailhouse Informants Caused the Conviction Joyce Ann Brown

Speaker:

Cheryl Wattley

1901 Main Street Dallas, TX 75201 (214) 752-5753 phone (214) 841-9112 fax Cheryl.Wattley@untdallas.edu

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

7/27/2021

ACTUAL INNOCENCE CONFERENCE Joyce Ann Brown – Exonerated August 5, 2021 Cheryl B. Wattley

9 years 5 months 24 days 2

The crime: May 6, 1980: 2 black women enter “Fine Furs by Rubin” pink pants – shooter navy blue jogging outfit ‐ accomplice put furs in plastic bags The victims: Holocaust survivors Ruben Danzinger, shot execution style, died Ala Danzinger, “let you suffer”

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The investigation: 911 called 1:16 pm (about 4 minutes after robbers left)

rental car found abandoned rented by Joyce Ann Brown found scarves, paper covered hangers

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The investigation cont’d Police comment: “I know a Joyce Ann Brown” picture included in photo spread identified by Ala Danziger

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After Joyce’s arrest, investigation • Get away car – rental – a Joyce Ann Brown, Denver, Colorado JAB Dallas was at wedding rehearsal loaned car to Rene Taylor search Taylor’s apartment: murder weapon, some of the stolen furs, pink jogging outfit, yellow pages turned to “Fine Furs by Rubin”

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The Defense Case:

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Joyce Ann Brown’s testimony: at work, did not leave time cards: 8:48 am, 4:12 pm

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Judy and Bruce Ponder 16

The State’s Rebuttal Witness: Martha Jean Bruce, Jailhouse snitch

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The snitch: Martha Jean Bruce: the testimony Promise or expectation of benefit: • No promises from the DA’s office

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The snitch: Martha Jean Bruce: the testimony Criminal Record: • 1971: 2 yr shoplifting • 1975: 3 yr attempted burglary • Arrested 5/6/1980 • 6/30/80: 5 year plea – attempted murder

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The snitch: Martha Jean Bruce: the testimony about Joyce Ann Brown • •

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Met Joyce Ann Brown on 5/6/1980 ‐ city jail Joyce Ann told her: • Worked at furrier store to learn most expensive furs • Went to Denver, rented a car • Left dress to be cleaned, intended to rob stor • Put furs in trash bags, transferred to truck owned by Jerry • Wore a blue dress and black wig • Made practice runs – Koslow to Ruben’s Fine Furs Joyce Ann Brown, friend, on her prison visitor log

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The snitch: Martha Jean Bruce: the truth Criminal Record: omitted • Arrested July 15, 1979, false report to a police officer • 3/13/1980: false report to police office; 10 days in jail

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The snitch: Martha Jean Bruce: the truth Promise or expectation: within weeks of conviction, the DA’s office wrote a letter to Parole Board, urging her release on parole

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The snitch: Martha Jean Bruce: the truth Promise or expectation: within weeks of conviction, the DA’s office wrote a letter to Parole Board, urging her release on parole

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The snitch: Martha Jean Bruce: the truth Conversation with Joyce Ann Brown: no confession Joyce Ann Brown offered to drive her children to prison to visit her

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State’s closing: Timeline: 36 minutes changed clothes drove 3 miles through traffic committed the robbery drove 3 miles back to Koslow’s change clothes at reception desk able to chat with co‐workers 26

1984 Writ: Rene Taylor had confessed Joyce Ann Brown wasn’t her accomplice Martha Jean Bruce released after 13 months on 5 year sentence DENIED

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Renee Taylor criminal record‐ fur store thefts murder weapon in her apartment phone book open to yellow pages – fur stores fingerprints on items in rental car and fur store 28

1989 Writ – Centurion Ministries Lorraine Germany, Rene Taylor’s accomplice Martha Jean Bruce conviction for false report to a police officer

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Credits: Photos: Joyce Ann Brown with Morley Safer, 60 minutes

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Criminal Defense Lawyers Project

Actual Innocence for Lawyers August 6, 2021 Radisson Fort Worth 2540 Meacham Blvd.

Fort Worth, TX 76106

Topic: Forensics Science Commission Overview

Speaker:

Mark Daniel

115 W 2nd St Ste 202 Fort Worth, TX 76102-3023 (817) 332-3822 phone (817) 332-2763 fax Mark.Daniel@markdaniellaw.com

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

7/26/2021

ACTUAL INNOCENCE FOR LAWYERS TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION FORT WORTH, TEXAS AUGUST 5‐6, 2021 1

CREATED in 2005 FUNDED in 2007 ARTICLE 38.01 C.C.P.

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TASK OF TEXAS FORENSIC SCIENCE COMMISSION

Texas Forensic Science Commission – tasked with ensuring the integrity and reliability of forensic science in Texas criminal courts.

Article 38.01 C.C.P.

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TEXAS FORENSIC SCIENCE COMMISSION COMPOSITION

 Nine members appointed by the governor;  Two‐year terms  Seven members must have expertise in the fields of forensic science;  One member a prosecuting attorney (TDCAA);  One member a defense attorney (TCDLA); Article 38.01 C.C.P.

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TEXAS FORENSIC SCIENCE COMMISSION MEETINGS  Quarterly  Austin, Texas  At Tom Clark Building, Austin (Supreme Court and CCA)  Meetings are open to Public

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TEXAS FORENSIC SCIENCE COMMISSION UNDER JUDICIAL BRANCH  Effective September 2017, the Texas Forensic Science Commission came under the Office of Court Administration (OCA)  OCA is a state agency created under the Judicial Branch  Government Code Ch. 72 in Title 2 (Judicial Branch)  Operates under the direction and supervision of the Supreme Court

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TEXAS FORENSIC SCIENCE COMMISSION AND OPEN GOVERNMENT PROVISIONS  Texas Public Information Act (PIA).  The judiciary is not a “governmental body” under the PIA

(Sec. 552.003, Tex. Gov’t. Code).  The PIA does not apply to records collected, assembled or

maintained by or for the judiciary (Sec. 552.0035, Tex. Gov’t. Code).  Texas Open Meetings Act (TOMA) does not apply to TFSC

meetings.  Internal policy adopting TOMA provisions passed in

September 2017.

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TEXAS FORENSIC SCIENCE COMMISSION ACCESS TO JUDICIAL RECORDS (Rule 12.6)  Request in writing.  Open to the general public for inspection and copying

during regular business hours.  Agency must respond as soon as practicable but not more

than 14 days of receipt of request.  Send written notice, if record cannot be provided within 14

days, setting a reasonable date and time when documents will be provided, produced or made available.

 Must produce at a convenient location.

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TEXAS FORENSIC SCIENCE COMMISSION OPEN RECORDS LIMITATION Information filed as part of an allegation of professional misconduct or professional negligence or that is obtained during an investigation of an allegation of professional misconduct or professional negligence is not subject to release under Chapter 552, Government Code, until the conclusion of an investigation by the Commission under Section 4.

Article 38.01, Sec. 10 C.C.P. 9

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Publicly accessible database for TFSC materials including accreditations, applications, licensing, quality incidents, discipline, OSAC Standards, corrective actions, complaints and laboratory self disclosures launching in June 2021.

Updated information will be readily available in September 2021.

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TEXAS FORENSIC SCIENCE COMMISSION STAFF AND CONTACT INFORMATION Staff: Lynn Garcia, General Counsel Leigh Savage, Associate General Counsel Kathryn Adams, Commission Coordinator Robert Smith, Associate General Counsel Contact Information: Stephen F. Austin Building 1700 North Congress, Suite 445 Austin, Texas 78201 Website: Email: Phone:

fsc.texas.gov info@fsc.texas.gov 888‐296‐4232 15

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TEXAS FORENSIC SCIENCE COMMISSION GENERAL DUTIES 1.

Investigate allegations of negligence and misconduct in Texas crime laboratories.

2.

Accreditation of crime laboratories.

3.

Licensing of forensic analysts (began in January 2019).

4. Adopting administrative rules for admissibility of certain

forensic analysis.

Note: The accreditation program in Texas did not begin until September 1, 2003. Laboratory accreditation was previously done by Texas DPS from 2003 to 2015. TFSC now accredits all Texas crime laboratories since 2015.

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TEXAS FORENSIC SCIENCE COMMISSION STATUTORY DUTIES The Texas Forensic Science Commission shall: 1.

Develop and implement a reporting system through which a crime laboratory may report professional negligence or professional misconduct;

2.

Require a crime laboratory that conducts forensic analyses to report professional negligence or professional misconduct to the TFSC.

Note: Commission investigations that assess negligence or misconduct must be limited to those allegations where the analysis occurred after September 1, 2003.

Article 38.01 C.C.P.

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DEFINITIONS PROFESSIONAL MISCONDUCT “Professional Misconduct” means the forensic analyst or crime laboratory, through a material act or omission deliberately failed to follow a standard of practice that an ordinary forensic analyst or crime laboratory would have followed, and the deliberate act or omission would substantially affect the integrity of the results of a forensic analysis. An act or omission was deliberate if the forensic analyst or crime laboratory was aware of and consciously disregarded an accepted standard of practice.

Article 38.01 C.C.P.

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DEFINITIONS PROFESSIONAL NEGLIGENCE “Professional Negligence” means the forensic analyst or crime laboratory, through a material act or omission, negligently failed to follow the standard of practice that an ordinary forensic analyst or crime laboratory would have followed, and the negligent act or omission would substantially affect the integrity of the results of a forensic analysis. An act or omission was negligent if the forensic analyst or crime laboratory should have been but was not aware of an accepted standard of practice.

Article 38.01 C.C.P.

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TEXAS FORENSIC SCIENCE COMMISSION STATUTORY DUTIES The Texas Forensic Science Commission shall: Investigate, in a timely manner, any allegation of professional negligence or professional misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by a crime laboratory.  In 2011, the TFSC was directed by the Texas Attorney General that it lacked the authority to opine on the evidence admitted in cases before the creation of the TFSC in 2005. Tx. Atty. Gen. Op. No. GA‐0866.

Article 38.01 C.C.P.

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TEXAS FORENSIC SCIENCE COMMISSION STATUTORY DUTIES (cont.)

(Accredited Labs) If the TFSC conducts an investigation of a crime laboratory that is accredited pursuant to an allegation of professional negligence or professional misconduct involving an accredited field of forensic science, the investigation: 1.

Must include the preparation of a written report that identifies and describes the methods and procedures used to identify: A. B. C. D. E. F.

the alleged negligence or misconduct; whether negligence or misconduct occurred; any corrective action required of the laboratory, facility, or entity; observations of the commission regarding the integrity and reliability of the forensic analysis conducted; best practices identified by the TFSC during the course of the investigation; and other recommendations that are relevant, as determined by the TFSC. Article 38.01, Sec. 4 C.C.P.

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TEXAS FORENSIC SCIENCE COMMISSION NO FINDINGS FOR CIVIL AND CRIMINAL CASES

The TFSC may not issue a finding related to the guilt or innocence of a party in an underlying civil or criminal trial involving conduct investigated by the TFSC.

Article 38.01, Sec. 4(g) C.C.P.

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TEXAS FORENSIC SCIENCE COMMISSION COMPLAINTS AND DISCLOSURES COMMITTEE

 MARK G. DANIEL  DR. JASMINE DRAKE  DR. MIKE COBLE

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LICENSING REQUIREMENT Effective January 1, 2019: A person may not act or offer to act as a forensic analyst unless the person holds a forensic analyst license.

The TFSC may establish classifications of forensic analyst licenses if the TFSC determines that it is necessary to ensure the availability of properly trained and qualified forensic analysts to perform activities regulated by the TFSC. Article 38.01, Sec. 4‐a, C.C.P. 26

DEFINITIONS FORENSIC ANALYST AND FORENSIC ANALYSIS  “Forensic Analyst” means a person who on behalf of a crime laboratory accredited under this article technically reviews or performs a forensic analysis or draw conclusions from or interprets a forensic analysis for a court or crime laboratory. The term does not include a medical examiner or other forensic pathologist who is a licensed physician.  “Forensic analysis” has the meaning assigned by Article 38.35.

Article 38.01, Sec. 4‐b, C.C.P. 27

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DEFINITION OF “FORENSIC ANALYSIS” 4. “Forensic Analysis” means a medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action. The term includes an examination or test requested by a law enforcement agency, prosecutor, criminal suspect or defendant, or court. The term does not include: A. latent print examination; B. a test of a specimen of breath under Chapter 724, Transportation Code; C. digital evidence; D. an examination or test excluded by rule under Article 38.01; E. a presumptive test performed for the purpose of determining compliance with a term

or condition of community supervision or parole and conducted by or under contract with a community supervision and corrections department, the parole division of the Texas Department of Criminal Justice, or the Board of Pardons and Paroles; or

F. an expert examination or test conducted principally for the purpose of scientific

research, medical practice, civil or administrative litigation, or other purpose unrelated to determining the connection of physical evidence to a criminal action.

Article 38.35 (a)(4) C.C.P. 28

LICENSING REQUIREMENT DOES NOT INCLUDE:  Latent fingerprint examination;  A test of a specimen of breath under Chapter 724, Transportation

Code (Intoxilyzer);

 Digital evidence;  An examination or test excluded by rule under Article 38.01,

Code of Criminal Procedure;

 A presumptive test performed for the purposes of determining

compliance with a term or condition of community supervision or parole and conducted by or under contract with a community supervision and corrections department, the parole division of the Texas Department of Criminal Justice, or the Board of Pardons and Paroles; 29

LICENSING REQUIREMENT DOES NOT INCLUDE (cont.):  An expert examination or test conducted principally for the

purpose of scientific research, medical practice, civil or administrative litigation, or other purpose unrelated to determining the connection of physical evidence to a criminal action;

 Forensic pathology – includes that portion of an autopsy

conducted by a medical examiner or other forensic pathologist who is a licensed physician;

 Sexual assault examination of a person  Forensic anthropology, entomology, or botany;  Environmental testing; 30

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LICENSING REQUIREMENT DOES NOT INCLUDE (cont.):  Traffic accident reconstruction;  Serial number restoration;  Polygraph examination;  Voice stress, voiceprint, or similar voice analysis;  Statement analysis;  Forensic odontology for purposes of human identification or age

assessment, not to include bite mark comparison related to patterned injuries;  Testing and/or screening conducted for sexually transmitted diseases;  Fire scene investigation, including but not limited to cause and original determinations;

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LICENSING REQUIREMENT DOES NOT INCLUDE (cont.):  Forensic photography;  Non‐criminal paternity testing;  Non‐criminal testing of human or nonhuman blood, urine, or tissue; or  Forensic psychology, including profiling, memory analysis and other forms of forensic psychology.

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LICENSING REQUIREMENT DOES INCLUDE: SEIZED DRUGS:  Qualitative determination;  Quantitative measurement;  Weight measurement;  Volume measurement;

TOXICOLOGY:  Qualitative determination;  Quantitative measurement; 33

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LICENSING REQUIREMENT DOES INCLUDE (cont.): FORENSIC BIOLOGY:  Collection;  DNA‐STR;  DNA‐YSTR;  DNA‐Mitochondrial;  DNA‐SNP;  Body fluid identification;  Relationship testing  Microbiology;  Individual characteristic database; 34

LICENSING REQUIREMENT DOES INCLUDE (cont.): FIREARMS/TOOLMARKS  Physical comparison;  Determination of functionally;  Length measurement;  Serial number restoration;  Trigger pull force measurement;  Qualitative chemical determination;  Distance determination; 35

LICENSING REQUIREMENT DOES INCLUDE (cont.): FIREARMS/TOOLMARKS (cont.)  Trigger pull force measurement;  Qualitative chemical determination;  Distance determination;  Ejection pattern determination;  Trajectory determination;  Product (make/model) determination;  Individual characteristic database; 36

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LICENSING REQUIREMENT DOES INCLUDE (cont.): FIREARMS/TOOLMARKS (cont.)

An individual who acts solely in a supporting role to a firearm/toolmark analyst who conducts firearm function testing, evaluates firearm‐related evidence for NIBIN suitability, and performs NIBIN entries following standard acquisition protocols established by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives shall be considered a firearm/toolmark technician and may apply for a Forensic Analyst License limited to firearm/toolmark technician; 37

LICENSING REQUIREMENT DOES INCLUDE (cont.): DOCUMENT EXAMINATION:  Document authentication;  Physical comparison;  Product determination;  Issue with availability to defense.

MATERIALS (TRACE):  Collection;  Physical determination;  Chemical determination; 38

LICENSING REQUIREMENT DOES INCLUDE (cont.): MATERIALS (TRACE) (cont.):  Physical/chemical comparison;  Product (make/model) determination;  Gunshot residue (collection and qualitative determination);  Footwear and tire tread; (collection, enhancement; physical comparison and product (make/model) determination);  Fire debris and explosives (qualitative determination).

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TEXAS FORENSIC COMMISSION DISCIPLINARY ACTION FOR LICENSEES When the TFSC determines that a license holder has committed professional misconduct or violated a rule or order of the TFSC, the TFSC may: 1.

Revoke or suspend the person’s license;

2. Refuse to renew the person’s license; or 3. Reprimand the license holder.

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TEXAS FORENSIC COMMISSION DISCIPLINARY ACTION FOR LICENSEES (cont.)

The TFSC may place on probation a person whose license is suspended. If a license suspension is probated, the TFSC may require the license holder to: 1.

Report regularly to the TFSC on matters that are the basis of the probation; or

2. Continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the TFSC in those areas that are the basis of the probation.

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FIELDS OF FORENSIC SCIENCE (Not determined to be reliable)  Forensic odontology bite mark comparison…Ex parte Chaney…2016 TFSC recommendation it not be admitted  Hair microscopy/microscopic hair analysis  Retrograde extrapolation  Arson investigation/Fire science

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RAPID DNA Rapid DNA Identification ANDE Corporation 266 Second Avenue Waltham Massachusetts 02451 (817) 705‐4055 Ande.com    

Results in less than two (2) hours Entities performing the analysis are not accredited FBI Approval on June 4, 2018 Rapid DNA Act of 2017 (Orrin Hatch) 43

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RAPID DNA ANALYSIS  In Texas – Ande instrument  Ideal goal: at booking station  Oral swab from arrestee inserted into instrument  Compares sample to database  Similar to fingerprint analysis.

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RAPID DNA LIMITATIONS AND ISSUES  Crime scene samples may be mixtures, contain low

quantity or degraded DNA;

 The FBI Director’s Quality Assurance Standards for

Forensic DNA Testing Laboratories requires quantitation of forensic samples;  There are currently no approved expert systems for crime scene samples;  Law enforcement collecting crime scene samples do not have the education, training or experience necessary to assess the crime scene evidence and determine the type of testing to achieve the optimal results.

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RAPID DNA REALITY  Instrument company markets for all investigative use  Rapid DNA analysis is not controlled by accredited labs  Rapid DNA analysis becomes a law enforcement database with no restrictions  Unclear if Rapid DNA can be used in court or for search warrants  No quality control or standards 47

RAMAN SPECTROSCOPY CHEMICAL FIELD TEST KITS/HANDHELD RAMAN SPECTROMETER  Law enforcement has historically used chemical field test kits for presumptive identification of controlled substances  A number of law enforcement agencies are utilizing portable handheld Raman Spectroscopy  Raman Spectroscopy is listed as a category “A” technique, which means it has one of the highest discriminating powers for the analysis of controlled substances 48

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TOP SUBSTANCES REPORTED BY DPS CRIME LAB The top substances reported by the DPS Crime Lab accounting for 82.62% of all reported drug results from 3/2012 to date was compared to the known and unknown samples analyzed during the evaluation

Substance Reported Methamphetamine Cocaine Marijuana Non-controlled Substance Heroin

TruNarc Accuracy

Ace-ID Accuracy

TacticID-N Accuracy

100%

Not enough data to evaluate

71%

91%

Not enough data to evaluate

9%

Not compatible

Not compatible

Not compatible

100%

Not enough data to evaluate

100%

Not compatible

Not compatible

Not

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MARIHUANA DEFINITIONS AND TESTING OF CANNABIS PRODUCTS  “Marihuana” defined in Section 481.002(26) of Texas Controlled

Substance Act as the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include: A. B. C. D. E. F.

The resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin; The mature stalks of the plant or fiber produced from the stalks; Oil or cake made from the seeds of the plant; A compound manufacture, salt, derivative, mixture, or preparation of the mater stalks, fiber, oil, or case The sterilized seeds of the plant that are incapable of beginning germination; or Hemp, as that term is defined by Section 121.001, Agriculture Code.

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MARIHUANA TESTING  First, the laboratory inspects a suspected Cannabis product for plant

material and tries to identify any plant material. The laboratory analyst attempts to find any cystolithic hairs or unicellular hairs.  Second, the laboratory performs gas chromatography – mass spectrometry (GC‐MS) on the suspected Cannabis product. The laboratory analyst uses only qualitative GC‐MS data, specifically looking for delta‐9‐tetrahydrocannabinol (THC).  If the laboratory analyst cannot observe any cystolithic hairs or unicellular hairs but detects THC, the laboratory analyst reports the substance as delta‐9‐tetrahydrocannabinol (THC)  If the laboratory analyst can observe cystolithic or unicellular hairs, the substance is reported as marihuana.

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TEXAS LAW DEFINING “MARIHUANA” FOLLOWING LABORATORY ANALYSIS  Texas law distinguishes between Cannabis products by the part

of the plant the product is derived from.  Texas law treats products made from the seeds and stems as non‐

illegal substances (i.e. hemp seed products).  Texas treats products made from the flowers and leaves as

marihuana, and treats products made from the “resinous extractive” of the plant as THC.  The resinous extractive of the plant is a term of art used to mean hashish or hash‐oil, THC‐rich products made by extracting THC from the cystolithic hairs on the flowers on the plant.

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PROBLEM WITH MARIHUANA TESTING AND DEFINITION  All Cannabis‐derived products may contain THC, as the substance is

found throughout the plant and throughout both industrial (hemp) and drug (marihuana) cultivars of the plant.  THC detection, by itself, is insufficient method to distinguish between products originating from the stems and seeds; flowers and leaves; or preferentially extracted from cystolithic hairs.  Since the law groups “every compound, manufacture, salt, derivative, mixture, or preparation” of the stems and seeds; flowers and leaves; and resinous extractives of the plant along with the part of the plant the product was derived from, visual inspection does not provide any meaningful information about the origin of the product.  Argument can be made that neither method employed by the laboratory can accurately or reliably distinguish between different Cannabis products.

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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.

WWW.TCDLA.COM

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

WWW.TCDLA.COM

Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership.

Deserving members without the wherewithal to attend our seminars can get financial aid to help in their continuing legal education.

Pledge Options Choose a fund that’s near and dear to you: For the

ASSOCIATE FELLOWS FUND ($750)

In one lump sum

Quarterly Monthly

FELLOWS FUND ($1500)

SUPER FELLOWS FUND ($3000)

In ____ payments of $________.

I would like to designate this donation for use on these specific funds: CHARLES BUTTS Law Student Scholarship in the amount of $_________ Financial CLE SCHOLARSHIPS $___________ For the COMANCHE CLUB in the amount of $_________

F or CHRISTINE S. CHENG MD MEMORIAL Asian-American Scholarship & Travel fund in the amount of $___________

BERTHA MARTINEZ TRIAL COLLEGE Travel Scholarship in the amount of $___________ KELLY PACE MEMORIAL NEW LAWYER TRAVEL FUND in the amount of $___________

Contact Information _________________________________________________________________ Name

_________________________________________________________________ Bar Card Number/Date

_________________________________________________________________ Street

_________________________________________________________________ City, State, Zip

_________________________________________________________________ Phone

_________________________________________________________________ Email

Payment Method Check payable to TCDLEI

Credit Card (Visa, Mastercard, Amex, or Discover)

_________________________________________________________________ Credit Card Number

_________________________________________________________________ Expiration Date

_________________________________________________________________ Name On Card

_________________________________________________________________ Signature

Mail completed pledge form with payment to TCDLA • 6808 Hill Meadow Drive • Austin, Texas 78736 TCDLA Office Use Only Amount:_____________________________ Check/cc: _______________________________ Entered By: _____________________________ Date: __________________________

www.tcdla.com