Getting Game Day Ready in Victoria

Victoria, TX September 17, 2021

CDLP Chair:

Adam Kobs - San Antonio

CDLP Vice Chair:

Monique Sparks - Houston

Texas Criminal Defense Lawyers Association

Game Day! How to Tackle Any Courtroom Situation Table of Contents

-Speaker

Topic September 17, 2021

Lisa Greenberg

Kick-Off & Red Zone | Open and Closing Arguments

Jessica Canter

Scouting | Voir Dire

Patty Tress Joe Stephens Molly Bagshaw Angelica Cogliano Joseph Hoelscher

Scrimmaging | Pre-Trial Investigations Lunch Presentation: Keep Your Head in Game | Mental Health Instant Replay | Technology in the Courtroom Special Teams | Experts & Witnesses Rules of the Game/Penalties | Client Relationships & Communications

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

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation September 17, 2021 Courtyard by Marriott Victoria 8002 N Navarro St Victoria, TX 77904

Topic: Kick-Off & Red Zone | Open and Closing Arguments

Speaker:

Lisa Greenberg 622 S Tancahua St Corpus Christi, TX 78401-3426 (361) 446-2476 phone (361) 288-3476fax lisagreenberglaw@gmail.com

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

THE ART OF OPENING AND CLOSING: TELLING THE STORY Note: Most of this information I “borrowed” from the National Criminal Defense College materials. I have tried to summarize them into a succinct how- to format for you here.

Part One: Opening Statements Introduction: Each of our clients walks into the courtroom with a story. It is written and has been lived before we have ever heard it. We become the directors behind the camera lens of how to present it to the jurors, not once but several times throughout the course of the trial. It is our job to have the jury hear us, feel what we are saying, believe us and deliver us the verdict we ask for.

The opening statement is our first chance to show our story to the jury in all its glory. Do not waste it.

PART ONE: OPENING STATEMENTS I.

II.

TELL A STORY. a. Piles of facts and faces, names and places are all difficult for the average person to sort through and retain. We don’t want to serve up piles of those details to jurors who are already probably bored. Our job is to make them feel something.

That’s what they will remember. b. Stories are magic. They are what we use to manage facts and instill moral values, make ideas come alive. The magic draws us in. c. As lawyers, story-telling is our most powerful tool.

ORGANIZING THE OPENING: a. Begin preparing by telling the story of your case to friends/ family. See what makes them most interested, what questions they ask. b. Jot down a brief outline of the action of your story, who does what to whom and in what order. i. What are your strongest pieces of evidence that support your theory of the case. ii. What are the worst facts you have to deal with. c. Organizing your Facts and Characters: i. Identify the main character. Who is the villain and who is the good guy.

Who is believable and unbelievable? ii. Pull together facts and evidence that leads jurors to the same conclusions on their own. d. Deciding upon Your Sequence: how do you want to tell the story? What’s most effective? i. Chronologically: this is the most used but may be least effective in majority of cases. This is generally because your strongest evidence sort of happens at the end. ii. Flashback/Flashforward: This may involve starting out with the dead body, the outcry, etc. and then flashing back to all the players and their activities over the week before. The advantage is you can start at the point

III.

of the story you want to make most memorable. People remember best what we hear first and last. (by the end of your opening you then bring jury right back to the place they started- client in cuffs etc) iii. Parallel action: might be best for alibi cases- taking jury back to two separate but simultaneous scenes of action. iv. Vignettes: several scenes or topics you need to talk about which have no real time relations to one another. Ex: battered woman case where you want to describe some particularly hurtful scenes; self-defense. e. Selecting point of view: From who’s perspective? i. You may want to just be the narrator, but there are some other ideas that may prove effective ii. Consider telling the story from the perspective of your client to help the jury feel the frustration and lack of knowledge about what was going on.

1. Describe the arrest, the questions, his attempts to find out what was happening but no information, the sounds of metal doors closing, the months of waiting, the info trickling in… iii. Speaking in the first person: may be an extremely powerful way to describe a particularly critical conversation. (ex: cops persuading your mentally challenged client to go with them so he doesn’t get in trouble, etc.) If you choose, this, it is not easy, practice any times. Make sure this is exactly what will come from witness stand too. iv. Present tense v. past tense: Present tense can be more powerful. Say it as if it’s happening and describe it. You can mix the two tenses. f. Opening the Opening: i. Begin by stating your THEORY and THEME as succinctly as possible at the very beginning of your opening statement. ii. This is a case about_________. iii. Use a catchy phrase or give your case a name. Some advocates recommend giving your case a name- like the media does ex; Son of Sam, Uni-bomber. Find a catchy one that you find appropriate that helps you. iv. Do not save your theory for the end of the opening. It gives your opening a framework and perspective that the jury will then add facts to.

FINISHING TOUCHES: a. This is what sets a great storyteller apart from a mediocre one: the ability to make a story come to life. To let the listener actually see the events in their mind’s eye.

People believe what they say. If what you say can induce the …jury to visualize what you are talking about, they will be participating with you in creating a compelling image they will believe in.” James McElhaney, Opening Statements, ABA Journal, January, 1995 at 74. b. How do you make it visual? i. Use standard English- NO LEGALESE! You are a real person talking to real people. ii. Use Power Language- do not say “I think,” “I believe,” “I will attempt to show,”. Use active voice, not passive.

iii. Use vivid language: Speak in concrete language. Talk in specifics, not generalities. Paint word pictures (author’s note: if you’ve ever seen Tyrone Moncrief- he is a master at this!) iv. Use variety in sentence length. This way you are not monotone and lulling jurors to sleep. v. Use key words and “quotables”: 1. Quotes are good!

2. Analogies, similes, metaphors 3. Illustrative stories 4. Refrain- repeating the theme at the end of each block within your sequence 5. Trilogies- some attorneys swear by these- sets of 3 ex: blood, sweat and tears; drugs, sex, rock and roll 6. Parallel structures: “Ask not what your country can do for you, ask what you can do for your country:” “with great power comes great responsibility” IV.

WHAT NOT TO DO: a. Don’t ever say “nothing I’m about to say is evidence” b. Don’t spend 5 mins fawning over jurors for their unselfish giving of their time when we know they are only here under summons from the court and want more than anything to be somewhere else. c. Do not give a painfully tedious witness by witness recitation of each person’s testimony.

PART TWO: CLOSING STATEMENTS: This is the part of the trial when evidence has closed. You sit, listening to the first prosecution closing. Their recap of the evidence, their boring recitation of the jury charge. For me, this is when my foot won’t stop shaking. I want to get up and scream “That’s all BS and you know it”, but I channel my energy into the closing statement. It is my favorite and most feared moment of the trial.

It’s Showtime: The lawyer who does not agree that a jury is an audience waiting to be entertained, caressed, wooed, and thereby persuaded does a disservice to his client and to his profession as a whole.

How to begin.

I. List the Blocks of your Argument: a. You cannot argue that which you do not believe. If you do not believe in it, the jury will not either. i. List first for yourself the facts that support the verdict you want the jury to return. ii. After you’ve listed them, group them together in related blocks with a title. These are the “chapters” of your closing argument. iii. Ex: 1) Problems with identification, 2) Alibi, 3) Physical Evidence, 4) Police Screw Ups b. Try to come up with a minimum of 3 chapters, but no more than 7.

II.

III.

List Beneath Each Chapter EVERY Piece of Evidence that Supports That Point a. Look at all the evidence, police reports, lab reports, transcripts, witness interviews, physical evidence etc, and list them under each chapter. b. Sometimes one piece of evidence can go into more than one chapter.

Develop a Complete Argument Within Each Chapter. a. Each chapter needs a beginning, a middle and an end. i. Beginning: tell them what you are going to tell them ii. Middle: discuss each piece of evidence that supports your point, using the good facts to your advantage and neutralizing the bad ones as much as possible. iii. End: Repeat the overall point you are trying to make. Highlight the connection to the verdict you are seeking. Tell them exactly what you told them but why you told them. The close of each block of your argument is a good place to repeat the case theme. iv. Tip: Talk first, then write. None of us talks like we write. Talking it out will help organize it and make it more authentic. v. Tip: Avoid legal arguments: The rest of the world is persuaded by principles such as justice, fairness, right and wrong. Ex: to most jurors, the requirement of proof beyond a reasonable doubt is a legal technicality, the fear of convincing an innocent person is not. vi. Tip: Consider your audience:

IV.

V.

1. Jurors who are with you: Give them the ammunition to fight your battle for you in the jury room 2. Jurors who are undecided: persuade them to your point of view and give them the ammunition to support it.

3. Jurors against you: avoid entrenching them further and allow them room to both save face and change their minds. (don’t say, only an idiot would believe Officer so and so) Decide upon the Order and Weed Out the Extra: a. Select the chapter you feel has the strongest argument. Place it at the end of your closing. b. Select the chapter you feel has the second strongest argument: Place it at the beginning of your closing. c. Evaluate each chapter of your argument for weak or inconsistent arguments (ask your friends/family/colleagues too) Throw away those arguments. Less is more. d. Tip: When selecting the order of your chapters, don’t just go based on logic.

Consider emotional arguments, the emotion of your argument should build to a strong ending.

Polish the Persuasiveness: Saying things v. saying things that help make people take action. a. Triologies: people love these! Red, White and Blue; Blood, Sweat and Tears.

Something poetic and memorable with triologies, so look for opportunities to build one in your argument. b. Metaphors: Sometimes the abstract is hard to comprehend. Using metaphors can help capture the imagination, and strong words can help the jurors to feel the emotion. EX: humiliation pricked him like a sharp needle. c. Alliteration: A series of words that begin with or include the same sound. Ex: Close enough for Callahan (sloppy investigating officer); A small time snitch looking for someone to sacrifice; “Like most teenagers she was curious and confused, seduced by and scared of sex” d. Analogies: Sometimes makes things easier for us to understand- use fairy tales, children’s stories, everyday experiences etc. i. Tip: make it succinct! Use an analogy only if it is unquestionably and directly on point to a significant issue in the case. e. Silence: Can a lawyer even be quiet for a minute? If so- it can be an incredibly powerful tool. i. Use silence at the beginning of your argument to build tension in the courtroom and gather the attention of the audience. ii. Use silence during your argument as a nonverbal parenthesis to set apart a powerful point or let an argument float in the air for a bit. Give jurors time to taste it before moving on to the next one. iii. Use silence at the end of your argument- meet the eyes of each juror. Let the last words soak in and softly say thank you, showing them you trust them and take it seriously.

1. Tip: Do not clutter it up by moving around too much. Learn to simply stand and let silence speak for you on occasion.

VI.

VII.

VIII. IX.

X.

XI.

XII.

Create Chapter Headings and Transitions: Without some framework to process, the audience (reader) gets overwhelmed and gives up. This is why books have chapters and headings. a. Headings: Give your jurors the heads up that you are moving to a new topic. It can be as simple as “we are now going to talk about the sloppy police work in this case”. You can also ask questions as your heading. Such as “Why did she change her story to the police?” and then answer it. b. Transitions Between Chapters: i. Slow down when you are about to change topics, end the chapter you are speaking on and tell the jurors what your next chapter is. Pause briefly to allow the jurors to come along with you. ii. Tip: One transition technique is to tie each of your chapters back to your theme. It lets you repeat the theme, and lets jurors understand the chapters are different branches of same tree. Ex: The victim’s description does not match Joe Smith bc the police have the wrong man. Chapter Two: the second piece of evidence you heard about shows police have the wrong man.

Opening Hook: a. Don’t waste the first few moments of the juror’s time with thank yous or apologies for how long trial has taken. Jump in! Start with something strong and attention grabbing that will make your jurors want to stay with you beyond the opening lines!

Decide on Your Closing Lines: a. Don’t be the person with the great closing who mumbles a thanks at the end. End in a powerful way. Ask the jury for the verdict you want.

Practice it! a. Do not memorize it. b. Practice in the mirror, to your spouse, colleagues, pets, but practice it. c. Make sure it’s sincere and real.

Reduce it to an Outline Form: a. You cannot read a closing argument and persuade anyone of anything. Your passion comes from your belief in what you are saying. If you don’t care, why should the jury? b. Practice, practice, practice, but don’t memorize or read. c. Then reduce to a one page outline with the chapters and no more than a one to two word prompt for the evidence under each heading.

Additional Tips on Story Telling: You cannot begin the story at closing. You must have prepared the story way before the trial and told it during voir dire, opening, cross and closing. Some lawyers start their trial prep by writing the closing. This is up to you, but the goal is to have done the story telling throughout the trial and sending the jury back with the story once again in Closing. Send them in knowing the evidence shows what you said is true and with a passion for delivering the verdict.

Additional Tools for an Effective Closing Argument:

a. Pitch: we all can and should be conscious of the fact that we can alter pitch to emphasize a particular point. We have been trained as lawyers to speak in conversational boring lawyer tones. Monotones cause sleeping jurors. b. Rhythm: Have you all heard the lawyer who speaks like a tortoise? Don’t be that guy. Try changing the rhythm when you get to the impassioned part of your argument. Try slowing things down when you want a particular point to sink in. c. Volume: I can’t tell you what volume you need to speak at. You may want to change it to emphasize certain points. I once saw a lawyer who whispered very closely to the jurors, so they were in on the secret. But, you want them to hear you and for the court reporter not to interrupt and ask you to speak up. Try playing with your volume and see how it effects the story telling.

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation September 17, 2021 Courtyard by Marriott Victoria 8002 N Navarro St Victoria, TX 77904

Topic: Scouting | Voir Dire

Speaker:

Jessica Canter 1000 W Court St Box 3503 Seguin, TX 78155 (361) 450-6730 phone jcanter@trla.org

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

Voir Dire Storytelling through Voir Dire, Challenges for Cause, Batson Challenges, and Connecting with the Jury

Getting Game Day Ready!

Victoria, TX September 17, 2021

Presented by: Jessica Canter Lavaca County Public Defender 200 W 4th St. Hallettsville, TX 77964 361-450-6730

“Good fiction always begins with a story and progresses to theme; it almost never begins with theme and progresses to story.”

– Stephen King, On Writing: A Memoir of the Craft

Tell your client’s story. This has become a common principle in many CLEs. It is an old art form coming back to life. As technology takes over our lives, as we grow more accustomed to visuals and quick, sexy headlines, defense attorneys must find ways to connect with the jury and they can do that by telling a story. It is said people do not remember facts, people remember experiences.

This paper will address how to weave the theme of your case into voir dire (where I will briefly touch on challenges for cause and Batson challenges) and how to connect with the venire panel to get a fair and impartial 12 in the box. This paper will not go into detail on how to develop a theme, however I highly recommend the book that I will be referencing titled Storytelling for Lawyers by Philip N. Meyer. The book is a fantastic resource for anyone wanting to get down and dirty and really break down what a story is from plot, characterization, to the different perspectives a story can be told from.

Theme vs. Theory A theme is a controlling idea or core insight of a story. It “provides a unique and unstated quality that sparks in the audience a sense that the story will develop in a certain way.” 1 A theme announces itself over and over although is not often made explicit. A theory revolves around the facts and law of your case. It’s always present and always explicit. 2 Storytelling for Lawyers uses the OJ Simpson trial as an example of the difference between theme and theory. Boiled down, the theme of the OJ story was centered around justice and injustice (betrayal and tyranny), while the theory was focused on a botched investigation and planted evidence. 3

Peter N. Meyer, Storytelling for Lawyers 16 (2014).

Id. at 17 3 Id. at 18 1 2

Once you have your theory and theme of the case set for trial, you can begin weaving it into your voir dire.

Voir Dire The goal of voir dire is not to find the perfect six or 12 people to sit in the box for your trial, but to find the jurors who will not be fair and get them off your jury. There truly isn’t time for much else, so how do you develop a rapport with jurors and get them to open up to a complete stranger in a limited amount of time?

First Words Set the stage for an honest discussion with the venire. Explain to them why it is important that you hear from them, the importance of the role of a juror, and the importance of their honesty. Tell them it is okay to believe what they believe, and that we all have personal experiences that color the way we view the world and certain issues. Remind them that there are no right or wrong answers. I like to open up to them about myself and I don’t mean my career (remember the case is about your client, not you), but about my own experiences. For example, I tell a story of a colleague of mine who is a defense attorney and how she would make a terrible juror for a case that involved alleged animal cruelty, that she cannot separate her own beliefs and emotions to be fair and impartial, but that does not mean she could not be fair and impartial in a different matter. I find that when you open up to the jurors with personal stories (real or made up but genuine sounding) they are more likely to open up to you. Self-disclosure can go a long way and it shows you are not asking them to do something that you are not willing to do yourself.

Respect and Empathy One key piece of advice is to never argue or belittle a potential juror who has answered a question honestly. You will get much further with the venire if you show a level of respect and empathy towards that person, and embrace their beliefs as perfectly reasonable. By acknowledging the belief, you are normalizing their bias and opening the conversation for other jurors who feel the same way. You want to have an honest discussion with them, to find out what they believe, the reasons for those beliefs, and how those beliefs operate in the context of your case. There is truly no such thing as a bad answer. If a juror reveals something that is painful or embarrassing, be sure to acknowledge their pain and thank them for speaking so honestly, “thank

you Juror X for your honesty, I know that was difficult for you. Does anyone else here feel the same way that he does?”

The Questions Keep your voir dire questions short, simple, and to the point. The longer the question the more you risk confusion. Make sure you are as open-ended questions and if the panel is quiet, pick a person to ask and then loop their answer. Using that juror’s words, move to another juror and say, “what is your reaction to what Juror X said? Do you agree or disagree?”

But what sort of questions should we ask? Ensure that you have questions centered around the law and legal principles applicable to your case (and every voir dire should always include questions centered around the burden of proof and the right to testify), but ask questions that relate to your theory and theme of your case. What do you need a juror to believe or understand in order to win the case? What do you need to know about the juror to decide whether s/he is a person you want on your jury? What life experiences would you like your jurors to have that are analogous to your theme?

For instance, you are going to trial on a case where your theory is self-defense while your theme is centered on anger or fear. You can ask questions like: •

Has anyone here experienced fear before? What did it feel like?

•

Tell us about the craziest thing you, or someone close to you, ever did out of fear.

•

Tell us about the most serious situation you have ever seen where someone had no choice but to use violence to defend themselves (or someone else).

•

Tell us about the most out-of-character thing you or someone you know ever did out of anger/fear/desperation/etc.

Another good way of getting your theory and theme into voir dire is not just through the questions you ask, but through visuals via PowerPoint or similar program. A picture is worth a thousand words. If possible, find images that convey an emotion. You do not need a lot on a slide, often a photo is enough, one that can remain up while you speak on the topic. Pictures can also be used to explain the burden of proof or who the key witnesses are.

And remember to listen. Listening is an active skill, not a passive one and takes some focus, but the jury is far more likely to connect with you if they believe you are listening to them.

Challenges for Cause and Batson Challenges 1. Challenges for Cause A challenge for cause is “an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to service on the jury.” Article 35.16 of the Texas Code of Criminal Procedure.

A challenge for cause may be for any one of the following reasons: 1. The juror is not a qualified voter in the state and county 2. The juror has been convicted of a misdemeanor theft or a felony 3. The juror is under indictment for misdemeanor theft or felony 4. The juror is insane 5. The juror has a defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render the juror unfit for jury service 6. The juror is a witness in the case 7. The juror served on the grand jury which found the indictment 8. The juror served on a petit jury in a former trial of same case 9. The juror has a bias or prejudice in favor of or against the defendant 10. The juror has established a conclusion as to guilt or innocence of the defendant 11. The juror cannot read or write Some examples of topics for challenges for cause include: 1. Type of case 2. Police officer credibility 3. Child witness credibility 4. Defendant’s failure to testify 5. Ability to consider full range of punishment

To get a challenge for cause, a defense attorney must ask the cause question. You can begin with, “some people feel…” Ask a specific juror how they feel and why, and do not forget to thank them for their honesty. Now it is time to lock in the challenge. When doing the challenge for cause, always ask a closed-ended question. For example, “Juror Number 6 (or Juror’s name), given the opinions you’ve shared with us, would it be fair to say to say that if this were a race, we would not be starting off even with the other side, that we would be starting behind?” (a Robert Hirschhorn example), “Juror number 6, given what you’ve shared, would it be fair to say that your feelings would affect your verdict in this case?”, “Juror number 6, given what you’ve shared, could you be fair and impartial in this case?”

2. Batson Challenges Article 35.261 of the Texas Code of Criminal Procedure reads reads: (a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impanelled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges.

The burden of persuasion remains with the defendant to establish purposeful discrimination. (b) If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case.

To develop a Batson claim, the defense must make a prima facie case of that the prosecutor has excluded a juror based on race or gender. Fritz v. State, 946 S.W.2d 844 (Tex. Crim. App. 1997). The objection must be reasonably specific and on the record. The record must be clear concerning the race and/or gender of the jurors peremptorily struck by the State as well as the race and/or gender of the rest of the jury panel. Once the prima facie case has been established, the State must make a race-neutral explanation for the strike. Pondexter v. State, 942 S.W.2d 577 (Tex. Crim. App. 1996). The burden then shifts back to the defense for rebuttal of the State’s explanation(s). The trial judge will then make a determination of whether the defense

has shown purposeful discrimination on the part of the state, considering strength of the case, credibility of the party’s racially neutral explanation, the strike history of the lawyer, and the totality of the explanations given by the State.

Conclusion Voir dire is your first and only opportunity to have a conversation with your potential 12.

It sets the tone for the rest of trial. So, remember to scope out the courtroom where the “deselection” will take place, have a seating chart ready, and if possible, a second chair who can assist you in taking notes. You’ve prepared for voir dire during the work up of your case if you realize it or not and with a theory and theme, questions prepared, and a touch of genuineness, you’re game day ready. For more resources, please see the TCDLA Trial Notebook, which has important and necessary caselaw and a sample seating chart, as well as Robert Hirshorn’s materials from TCDLA’s Rusty Duncan Seminar 2021

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation September 17, 2021 Courtyard by Marriott Victoria 8002 N Navarro St Victoria, TX 77904

Topic: Scrimmaging | Pre-Trial Investigations

Speaker:

Patty Tress

222 E. McKinney Suite 210 Denton, TX 78155 (972) 325-1758 phone (940) 222-2769 fax planyourdefense@yahoo.com

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

BATTLING THE RESISTANCE: PRETRIAL INVESTIGATIONS

Patty A. Tress 222 E. McKinney Street, Suite 210 Denton, Texas 76201 planyourdefense@yahoo.com (972) 325-1758 (office) (972) 922-5498 (cell)

Pretrial investigation is THE most important part of what we do as criminal defense attorneys. The information we hear, flesh out and use is all gathered during this phase of our representation. This is everything up until trial. Pretrial Investigation is what will provide you with the information you need for gathering additional evidence, witnesses, direct examination and cross examination. You must be thorough in your pretrial investigation on each case.

I.

WHEN TO START YOUR INVESTIGATION

You must conduct an independent investigation. You cannot solely rely on the State’s Evidence. Relying solely on the State’s investigation/evidence and failing to conduct an adversarial testing of the State’s evidence is ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984).

You will begin your investigation as soon as your representation starts. This can be as soon as you are retained or appointed to a case. If you are retained, it will likely begin during your consultation/sign up with the client. If you are court appointed, it will begin when you meet with your client for the first time. In person meetings are preferable, however, given the pandemic we are facing, you can utilize zoom, securus, home wave, facetime, or a meeting at your office or at the jail. It just depends on your and the client’s level of comfort. If for whatever reason, you cannot get to the jail to see your client, and you do not wish to use

securus or home wave, please send the client a letter with a questionnaire and selfaddressed stamped envelope to send back to you. This will help get you started on the information you need to be looking into on your client’s case.

DO NOT JUST WAIT FOR THE CASE TO BE FILED OR INDICTED. Waiting could allow time for witnesses to disappear, documents to go missing, or just plain old people forgetting what happened. So, make sure to start your investigation right away. Remember, timing can be everything. Additionally, make sure you get an investigator to help you on the more complicated cases.

2. BUILD YOUR TEAM Having a team to help you is imperative in having a successful representation.

Who should be in your team? Well, that is up to you but there are always a few main players. You, your assistant/paralegal, any associate attorneys, investigators, and experts. One of the first people other than myself and my assistant that becomes involved in a case are my investigators. It is important to seek out an investigator that is experienced and whom you can work well with on your cases. I use the same investigators on my cases but you can have different ones for different cases if you choose.

Investigators and experts cost money.

If your client has money and is

retained, you will just need to contact the investigator or expert and have your client

pay the fee. However, if your client is indigent or has become indigent during your retained representation, you need to request an investigator and expert from the court. Remember not every case requires an investigator or expert.

To have the court foot the bill for the investigator or expert, you need to file a motion. Attached to this paper are the motion and order I use for both appointment of an investigator and expert. You will be filing an Ake v. Oklahoma, 470 U.S. 68 (1985) and Ex Parte Briggs, 187 S.W. 3d 458 (Tex. Crim. App. 2005) motion. Even if you are retained, if your client has become indigent do not hesitate to file this motion when you need an investigator or expert. The Court often wants to limit funds for experts and investigators. If they do not authorize enough money, make sure you contact other experts, get affidavits of what they charge and reapproach the court about additional funds. I cannot stress this enough---You must continue to ask for additional funds or find an expert at the price you have. If you do not, you are setting yourself up for an ineffective assistance of counsel claim. Finally, make sure that you stay involved with your investigator and experts to make sure you will get the information you need on your case.

3. THINGS TO WATCH OUT FOR DURING YOUR INVESTIGATION

Our clients seem to absolutely LOVE social media. They cannot seem to stay off their accounts. While you are NOT allowed to tell them to delete anything with regard to the offense, it is wise to advise them to cease using their accounts. Social media can also work for you during a pretrial investigation. You/your investigators can gain a wealth of information on witnesses by scrolling through social media.

You can find out background information, have they posted about the alleged offense, drug use, alcohol use, promiscuity, acts of violence, religious beliefs, illness (whether real or imaginary), employment, education, travel, and the list just goes on and on. There are tons of social media outlets but the main ones appear to be Facebook and Instagram.

Another thing to watch out for are your client’s jail calls. If your client is still in jail, their calls are being recorded as you know. I know that it doesn’t seem to matter how many times I tell them to not talk about their case on the phone, they always talk about their case on the phone!!! Make sure you get the jail calls. The State of Texas is not allowed to just dump calls on you without letting you know which ones they plan on using. In other words, you do not have to search for the needle in the haystack. See Skurka v. State, 512 S.W. 3d 444 (Tex. Ct. App.—Corpus Christi 2016) and Cerrillo v. State, 2019 Tex. App. Lexis 7138 (2019). Every letter sent out from my office to a client in jail reminds them that their calls are recorded. Our clients seem to forget they are recorded. These calls can come back to bite them in

the bum later. Make sure you are warning them every chance you get to cover yourselves.

A special note must be made regarding affidavits of non-prosecution. I often have client’s wanting me to obtain the affidavit. I let them know that my investigator does this as I cannot be a witness at trial. This will usually alleviate any concerns as to why you yourself are not getting the affidavit. It is important that you never meet with a complaining witness by yourself. Complaining witnesses often change their minds regarding whose side they are on throughout the course of a case. First, you cannot be a witness when they change their minds regarding what they told to you alone. Texas Disciplinary Rules of Professional Conduct 3.08 states “a lawyer is generally prohibited from being “an advocate before the tribunal...if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client.”

Second, they can make allegations like “the big mean defense attorney made me do it.” Third, the complaining witness may make allegations that you gave legal advice. You cannot and should not give legal advice to the complaining witness EVER.

4. RESOURCES

Other than your investigator and experts, there are a vast number of resources you can utilize to find information on witnesses, the complainant, and others in your case. For example, if you have a family violence case, sexual assault, or sexual assault of a child, odds are there might be a civil case out there. Look for divorces and SAPCRs. These can bring you a wealth of information you can use on cross examination. Most SAPCRS, Motions to Modify etc have an affidavit filed with them. If your witness or CW tells a different story in the affidavit than to the police or on the stand you can use this a fodder for your examination. Make sure to have your investigator run a background check. You can gain a wealth of information on a background check.

So, you need to essentially be checking on everything possible. That seems very overwhelming. But if you have put your team in place, you should be able to get the information you need. One of the ways to know what to start looking for in a case is to LISTEN to your client. I stress this only because as attorneys we often hear but don’t actually listen to what our clients are saying. Here is a list of pretrial investigative tools you should be addressing or looking into depending on the type of case you have (this is not a fully inclusive list as there are infinite possibilities for investigation in criminal cases): a. CPS records; b. Divorce/SAPCR records;

c. Employment records; d. Crime lab records; e. Medical records; f. Mental health records; g. Crime victim fund records; h. Transcripts of pretrial hearing or civil hearings; i. Investigate the State’s experts (use google scholar etc.) j. TDCJ records, probation records, records from County jail k. Jail calls (as discussed above) l. Affidavits of non-prosecution (see below); m. Photographs of your client and family members for use in sentencing—always remember to figure out ways to make your client human in the eyes of the jury no matter how tough the case.

Now that you have your sources for information, you will need to actually obtain the information. The easiest way to do this is through a subpoena duces tecum. You can issue a subpoena duces tecum requesting for example medical or mental health records. Just make sure you will receive your records in advance of when you will need them. For medical/mental health records for your client’s use a HIPPA release and not a subpoena. The State can see what subpoenas you issue and will issue the same subpoena for the records to try and figure out what you are doing. Try not to

give them that opportunity. Our client’s medical/mental health records often contain information that could be harmful to their case.

Begin gathering your documents right away in a case. This will provide you ample time to review the records. Further, your review of the records could lead to additional records that you will need to obtain. Remember to have these records entered in court, you must have a business records affidavit on file 14 days before trial begins under TRE 902 (10).

5. VISITING THE SCENE One important aspect of pretrial investigation is that you visit the scene. This seems impossible to do sometimes but you must make time for this visit. It is important for you to be able to visualize how/where things were when you are later questioning a witness. Remember you OWN the courtroom. You do not need a witness to tell you exactly where things were and how the furniture was set up.

If you cannot go to the scene itself because there have been changes or it no longer exists, get your client and witnesses to describe in painstaking detail how everything was set up. One advantage (of many) to 39.14 is that it has made officer worn body cameras more readily available to us. Make sure you watch the videos as they go through a scene. Look at photographs to see how and where items are placed.

When the scene is the side of the road, it is important to not just rely on the officer’s description form that says “flat, hill, etc.” Go out there and see. There might be a dip in the road right before where your client was seen by the officer that he didn’t mention. This dip could have been the cause of your client’s swerve instead of intoxication. The bottom line is that if you do not go out and look at the scene you will not know how to describe it or defend from it.

6. WITNESS INTERVIEWS You must interview witnesses to prepare for trial. This should never be done on the eve of trial. A witness could provide additional information that needs to be investigated.

Initially, your investigator can make contact with a witness. Your investigator will conduct an interview and obtain information from the witness. You must review this information and determine if there are further items that need to be investigated.

This will also help narrow your interview with the witness.

When I interview witnesses, I typically try not to have them all in the same room at the same time (even pre-pandemic). This is to keep their information as their information and not what they heard from someone else. This can be hard for clients,

witnesses and their families to want to comply with. You must be firm when letting them know this is how the interviews will be conducted.

Make sure you are prepared to question a witness. I don’t mean just make sure you have pen and paper. Make sure you have reviewed all the evidence, you have reviewed their statements, and other statements. You need to know your case front to back and back again. The reason you need to know this is not just to conduct a fruitful interview but also to avoid any tampering. If your client’s family members are wanting to help with statements etc., please make sure to warn them of the risk of charges for tampering with a witness.

Now with your pretrial investigation complete, you are ready to file your pretrial motions. I am not going to delve into pretrial motions in this paper. TCDLA has a ton of prior CLEs and upcoming CLEs that teach on pretrial motions. I will, however, attach a few of the motions I use at the beginning of my representation.

Hope this paper has been helpful and informative. Happy Verdicts to All!!

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation September 17, 2021 Courtyard by Marriott Victoria 8002 N Navarro St Victoria, TX 77904

Topic: Lunch Presentation: Keep Your Head in Game | Mental Health

Speaker:

Joe Stephens

701 Oak Park Dr. Apt. 7116 Boerne, TX 78006 (512) 350-1478 phone joseph.stephens@medinacountytexas.org

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

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation September 17, 2021 Courtyard by Marriott Victoria 8002 N Navarro St Victoria, TX 77904

Topic: Instant Replay | Technology in the Courtroom

Speaker:

Molly Bagshaw

3515 Fannin St Houston, TX 77004 (713) 526-6300 phone (713) 808-9444 fax molly@houstoncriminaldefense.com

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

Game Day Ready!

Technology in the Courtroom September/October 2021 Molly Bagshaw Hochglaube & DeBorde, P.C. Houston, Texas molly@houstoncriminaldefense.com (713) 526-6300

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1) Slide 1: Technology in the Courtroom 2) Slide 2: Sometimes dealing with technology can feel like this...

• The files are “in the computer???” and Hansel throws the computer and destroys it…a classic Zoolander scene • This is what technology can feel like a lot of the time. Someone tells us “oh, it’s easy, just do it like this…” and then you don’t want to sound “dumb” or like the person who doesn’t know, so we just never learn. So that’s what this paper/presentation is for…the practical tools you can implement in your practice tomorrow that will catapult you in to 2021, or 2000, whatever you are most comfortable with!

3) Slide 3: Objectives • Why? o Why should I care? What I’ve been doing works for me!

• What? o Okay so what are you actually talking about? What sort of things do I need to implement?

• How? o Great – “prezi” sounds cool, but how do I actually implement that? How do I make sure my camera is off when I enter in to a zoom?

• We will be tackling all of this in today’s presentation/paper and I will provide you with actual strategies to use. I want every person at the end of the presentation to be able to say here is the 1 thing I’m going to implement in my practice tomorrow!

4) Slide 4: Rule 1.01 • Why? Because it’s our ethical duty!

• Rule 1.01 from TX Disciplinary Rules of Professional Conduct o https://www.txcourts.gov/media/1443638/199016.pdf o Comment 8: Maintaining Competence: “Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology. To maintain the requisite knowledge and skill of a competent practitioner, a lawyer should engage in continuing study and education. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances. Isolated instances of faulty conduct or decision should be identified for purposes of additional study or instruction.” February 26, 2019.

5) Slide 5: Why Else?

• Engage with the veniremen/jurors o If you are doing jury selection and you have an engaging presentation, you are already bonding with the jurors. People love visuals, and if you can get them to see that you are prepared, polished, and trying to engage with them, it will go a long way. Plus, they’ve already been waiting for so long to get to you (not to mention they probably don’t want to be there), so you want to grab their attention.

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Preparation o Let’s face it, it’s easy to let things fall by the wayside in our profession. But you can’t show up anywhere with a blank presentation. Creating a presentation forces you to sit down, think through your strategy, and commit it to memory • Control of the courtroom o With a solid presentation and effective use of technology, you are showing the jurors, the judge, the prosecutors, and your client that you aren’t merely a guest in the courtroom, it’s yours too. Demonstrating that you have a grip on the tech and on the room sends a message of confidence • Meaningful client contact (especially during a pandemic) o For clients that live far away or feel more comfortable at home, zooming with clients for meetings instead of at the office or on the phone is invaluable. You get that face-to-face contact without the stress of coming in to an office during a pandemic • Not to mention - it helps to connect people. People love technology, and we need to start looking forward and embracing it, instead of shying away from it 6) Slide 6: Why else? What about when technology IS the courtroom • In the presentation I include a picture of the legendary Mac Secrest literally doing oral argument for the court of criminal appeals LIVESTREAMED on youtube! If someone had told me that was going to happen 5 years ago I would have laughed you out of the room. But times are changing, and sometimes you are literally forced to embrace the technology or the technology will leave you • Virtual court is such a great way not only to learn, but also to save time and advocate for our clients by cutting out the travel and focusing on what really matters, the representation itself • You can learn by watching other courts, watching the court of a judge you’re approaching the next day, or brushing up on oral argument skills. That’s the beauty of our profession, the learning never stops 7) Slide 7: Zoom is Your Friend • Minimize distractions o When you are zooming in to a court or a meeting, you want your background not to be distracting. Of course we can’t help it if a pup (or 2!) pop in to the screen, but the background itself could be a wall, a nice painting, or even a bookshelf o Virtual backgrounds – this is a personal preference but I prefer not to use them. I think a virtual background is much more distracting than just a plain wall, and then you’re inviting needless additional technical difficulties in to what you’re doing. You want the people to focus on your words not your background • Ring lights o I know what some of you might be thinking, and NO ring lights are not just for Gen Z tiktok stars! Lots of people are using ring lights to light up their

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face if they are in a room/office with bad lighting, so that they don’t have to reconfigure their space o There are lots of models, etc. on amazon to pick from, and they make a big difference. I feel much more confident speaking when my face is well lit o https://www.amazon.com/Extendable-Sensyne-YouTube-CompatiblePhones/dp/B08B3X7NXC/ref=sr_1_3?dchild=1&keywords=ring+lights&qid= 1631136061&sr=8-3 Your name o Make sure that your name is your full name, and check it on each device before you log in o I may not mean to be logging in as “David’s iPad” but if I do it will be confusing for everyone involved Settings to mute/turn off video when entering a meeting o Sometimes you get put in a waiting room or you’re on hold for a while on zoom, and this is why you want to have your settings automatically on “mute and video off” when entering a meeting. Then you can unmute and show yourself as you are totally ready to go. We’ve all had a co-worker walk in and say an unsavory thing JUST as you see the zoom is connecting

o Screen sharing o Screen sharing is a beautiful tool. We use it with client constantly to go over discovery with them, and anything in their case. o You can use “whiteboard”, hook up your phone, share your ENTIRE screen, share only ONE document. There’s a screenshot below but I also will show these in real time during the presentation

8) Slide 8: Using Zoom in Your Practice • Paying for the premium account (meetings over 45 minutes) o Do yourself a favor and upgrade to the premium account. You won’t ever get cut off in the middle of a very important meeting. You can always be the one to volunteer to host because you know what you have is reliable • Client meetings - for viewing discovery o Already discussed this but a great way to stay in touch with your clients, check in with them, go over discovery with them. They see you and you see them even during a pandemic. It is a great way to build rapport with your client that everyone should embrace • Internal team meetings o Someone working from home? No problem! Hop on a team zoom and get everything done o You can share documents with the whole team so everyone is looking at the same information no matter where they are o We sometimes even do this when we’re all in the office so that everyone can sit comfortably at their own desk with access to their resources, and we’re at a safe distance • Meetings with other lawyers 5

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o Same rules as above apply!

Using doodle to schedule meetings o Do you ever find that it gets really annoying emailing a group of people all trying to find a date/time that works? If you know what I mean, then doodle is a great tool for you. o It’s free, and you can pick the available dates/times, then send in one email for everyone to vote § https://doodle.com/en/

9) Slide 9: Presentation Applications • Sick of seeing the state’s same presentation over and over again? Same! That’s because it is outdated and overused. We all know powerpoint (PPT) but here are some alternatives that are awesome! o ALL of these are free, and you can use pre-existing accounts to sign up • Prezi o Prezi takes PPT to a whole other level § You can upload your PPT to Prezi and they will embed it in to a presentation of their own o The 2 links below are a great way to get introduced/started with Prezi § https://prezi.com/dashboard/next/#/presentations § https://prezi.com/p/coqe-amrty8e/round-up-meeting/ o Prezi also can imbed the presentation on to the screen while you’re talking about it which is awesome (if you’re giving a virtual presentation) § Download Prezi video app: https://support.prezi.com/hc/enus/articles/360036062534-How-to-install-the-Prezi-Video-app • Google slides o Google slides is very similar to PPT but I think it is more user friendly

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o The beauty of google slides is that it’s constantly being saved automatically, and you can access it from any computer where you can login with your ID. So if your computer crashes on you, it’s automatically backed up o In the presentation – I will show how I made mine, and how I embedded videos in to the presentation using youtube o https://www.google.com/slides/about/ • Visme o Another option is Visme o Visme has awesome templates you can take and run with o https://www.visme.co/templates/presentations/ • Canva o Canva is newer on the scene but the design elements are beautiful o https://www.canva.com/design/play?category=tACFasDnyEQ 10) Slide 10: State’s Technology • File a motion in limine to see the State’s tech before they show it to the jurors!

• Make sure you check that EVERYTHING is accurate before they put it up there • A juror can’t unsee something • Always check their computer diagrams, maps, etc. to make sure they are accurate before they slap it up on the screen 11) Slide 11: Know the Courtroom!

• Each and every courtroom is different • Be aware of your surroundings/technology • What is available? What’s not? o Are you dealing with doc cams? Or does every juror have a nice little screen in front of them? Figure out where you are, what your options are, and make it work 12) Slide 12: The Court Staff • The court staff is your best resource. If you’re gearing up for trial, there’s no doubt that you will have a pre-trial conference. Or maybe you’re in court when a trial is already going on! Take a seat, see what they’re doing!

• Ask the staff, the bailiffs, etc. about what to use or what not to use. For example, if the speakers in there NEVER work, that’s something you want to know! If there’s no video screens and only doc cams – you need to know that too 13) Slide 13: Your Backup Plan • Your presentation could fail on you! Here are some precautions to take as a backup just in case: • Print out everything (twice!)

• Bring your own HDMI cord • Multiple devices (iPad, computer) • Use google slides so it is always backed up no matter what!

• Put it on a thumb drive • Email it to yourself • Bring your own audio speaker (just in case the court speakers are not working!)

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Bring another lawyer/clerk/intern with you o If you’re not as comfortable with the technology, bring someone with you whose sole job is to work your technology. They’ll be grateful for the experience, and you’ll be grateful for the help!

14) Slide 14: Be Flexible!

• Video in presentation of man throwing his computer • All jokes aside, we’ve all been there with technology! It’s not a reason not to try to embrace it • Every single person has had tech fail on them - it makes us endearing to the jurors!

Roll with it • Do not let the technology ruffle your feathers, it is there to help US, not the other way around. That’s why putting the backup plan in place is so crucial 15) Slide 15: The Other Side’s Tech • If you are provided technology you don’t understand…

• Ask for help from colleagues • Ask the court for funding for a tech or discovery expert o Sample Ake motion attached • Use experts in their fields - blood testing, DNA, scene reconstruction, etc. whatever it is, reach out! Use the TCDLA listserv or a local one, defense attorneys are so collaborative 16) Slide 16: Looking to the future…

• What will courts look like in 5, 10, 15, 20 years?

• We need to be creative and keep up with tech, not shy away from it. We can use these tools to help us make our lives easier and our representation better • I have this crazy idea to give venirepeople clickers like the ones they have for the audience on “Who Wants to Be A Millionaire,” that way you can get through scaled questions in record time. Who’s to say a judge wouldn’t let you do it? You won’t know if you don’t ask!

• There are so many possibilities of the future and we need to embrace them all, starting in this room

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IN THE ___ DISTRICT COURT OF HARRIS COUNTY, TEXAS STATE OF TEXAS V. Defendant

§ § § § §

CAUSE NO.

APPLICATION FOR ORDER TO SEAL TO THE HONORABLE JUDGE _____________: COMES NOW, ________________, and moves this Court consider the attached Motion ex parte and order the same be sealed together with all proceedings in this connection.

WHEREFORE, PREMISES CONSIDERED, it is respectfully requested that this Court order that the attached motion be consider ex parte and be sealed.

Respectfully submitted,

______________________________ Name State Bar No. 712 Main Ste, Ste 2400 Houston, TX 77002 (713) 555-1234 (713) 535-1234 FAX Attorney for Defendant

IN THE ____ DISTRICT COURT OF HARRIS COUNTY, TEXAS STATE OF TEXAS

§ § § § §

V. Defendant

CAUSE NO. ________

EX PARTE MOTION FOR PERMISSION TO EXPEND COUNTY FUNDS FOR PURPOSES OF EXPERT WITNESS TO THE HONORABLE JUDGE: COMES NOW, the Defendant, by and through attorney of record, _______, and respectfully requests, pursuant to Tex.Code Crim.Proc. art. 26.05 (this is our section providing for compensation for indigent defense); the Eighth and Fourteenth Amendments to the United States Constitution; Article 1 and Ake v. Oklahoma, 470 U.S. 68 (1985) that an order be entered allowing the undersigned counsel to incur reasonable expenses in defense of the present allegation and in support hereof would show unto this Honorable Court the following: I. Defendant is charged by felony indictment with [add criminal charge here]. His attorney, ________, has been appointed by this Honorable Court and the Defendant has been found to be indigent.

(an indigency finding can also be made on hired cases) II.

It is clear that the services of an expert witness will be needed. Defendant requires an expert to examine and analyze the results of [fact specific: add information of what needs to be analyzed. Example: a lab test performed by the Harris County Institute of

Forensic Sciences of narcotics allegedly obtained from the defendant’s person].

In Ake, the Supreme Court identified the three factors to be considered in determining if a Defendant is entitled to have an appointed expert as follows: The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.

Ake, 470 U.S. at 77.

As the Court further explained, “[t]he private interest in the

accuracy of a criminal proceeding that places an individual’s life or liberty at risk is almost uniquely compelling.” Ake, 470 U.S. at 78. In the instant case, Defendant is facing a minimum sentence of twenty five years in prison and a possible life term of imprisonment.

As for the second factor, the governmental burden, counsel is requesting $[state amount requested. Example: $1450.00]. As the Court explained in Ake, “it is difficult to identify any interest of the State, other than that in its economy, that weighs against recognition of this right. The State’s interest in prevailing at trial – unlike that of a private litigant - is necessarily tempered by its interest in the fair and accurate adjudication of criminal cases.” Ake, 470 U.S. at 79. Harris County has an interest in economy, but not for the relatively small sum of [$3500.00] and at the expense of an indigent Defendant.

See Rey v. State, 897 S.W.2d 333, 339 (Tex.Crim.App. 1995)

(holding that a total fee of approximately $2,000 would not be unmanageable for the County).

The third factor is “the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.” Ake, 470 U.S. at 77. The appointment of this expert will “level the playing field” and give defense counsel “access to a competent expert who can assist in the evaluation, preparation, and presentation of the defense.”

See Griffith v. State, 983 S.W.2d 282, 286 (Tex.Crim.App. 1998)(citing Rey, 897 S.W.2d at 337).

III. Indigence [state facts of inablility to pay] Defendant has received an appointed attorney as a result of the fact that this Honorable Court has found him indigent. He is confined within the Harris County Jail and unable to earn an income and has not earned any income since the Court’s previous indigence determination.

WHEREFORE, PREMISES CONSIDERED, it is respectfully requested this Motion be granted in all respects.

Respectfully submitted, ______________________________ Name Attorney for Defendant 712 Main St., Ste 2400 Houston, TX 77002 SBN 713 555-1234

ORDER CAME ON TO BE HEARD, the Defendant's ex parte motion for permission to expend county funds for purposes of a forensic expert whose testimony and assistance will be necessary, and after considering the same, it is hereby ORDERED that it is GRANTED

/

DENIED. Defense counsel, _______, is allowed to retain the services

of an expert to assist him in preparation of the case for the defense. The expert will be reasonably compensated up to $____________ upon submission of proof of all expenditures to this Court.

SIGNED the _____ day of ________________, 2018.

PRESIDING JUDGE

VERIFICATION I swear that all of the contents of the foregoing motion and true and correct to the best of my knowledge. _________________ Attorney Name

Sworn to before me on this the ___ day of June, 2018. ______________________ Clerk, ____ District Court

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation September 17, 2021 Courtyard by Marriott Victoria 8002 N Navarro St Victoria, TX 77904

Topic: Special Teams | Experts & Witnesses

Speaker:

Angelica Cogliano 2202 Lake Austin Blvd Austin, TX 78703-4548 (512) 843-1883 phone Angelica@coglianolaw.com

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

Criminal Defense Lawyers Project

Game Day! How to Tackle Any Courtroom Situation September 17, 2021 Courtyard by Marriott Victoria 8002 N Navarro St Victoria, TX 77904

Topic: Rules of the Game/Penalties | Client Relationships & Communications

Speaker:

Joseph Hoelscher 3030 Nacogdoches Rd Ste 222 San Antonio, TX 78217-4540 joe@hgclaw.com

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

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

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