Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

Received this email, and permission to publish it from polygraph examiner John Swartz:

Jamie, I enjoyed reading your publication about "Should the Accused Take a Polygraph Examination?"

I was a Federal examiner for over 20 years, both with DEA and the Central Intelligence Agency. I have much to tell you.

In 1995, I moved back to the United States after many years in South America. I began testing sex offenders on probation in Houston and the many successes we had with that category of offender led me to give a training session to the Harris County District Court Judges in 1999.

Our felony court judges are totally on board.

They now order it for everything, including Felony DWI's to make sure they're not drinking and driving, etc. as well as pedophiles to make sure they have no new child victims. If they fail and admit to new violations, a MAG is filed.

It is simply a matter of training the decision makers. Train the judges and the probation supervisors and everyone and everything else falls into place.

It works to the benefit of the defense bar because those lawyers can successfully argue, "If the state can use it, so can I". And they prevail every time. We've won hundreds of times in front of the Grand Juries as well on everything from murder to shoplifting. If you want attorney references, I'll give you dozens and dozens.

Incidentally, most academic studies on polygraph accuracy on specific issue criminal polygraph exams average 98-99% since 1980.

If you need more info on polys, call me any time at 713 460-3000 or hit the website at www.polygraphusa.com so we can discuss.

I test statewide and am in Austin, San Marcos and San Antonio every month.

John Swartz

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The Eyewitness ID Reform Blog reports on a Federal Court’s ‘misunderstanding’ of Eyewitness identification ‘science’ in the denial of an expert witness’ opinion. Citing the decision:

Officer Catterton served as a military police officer for the United States Army for six years. He has been trained to be constantly observant of his surroundings, especially the people he encounters on the job.

He has been specifically trained to observe and remember the faces he comes across so that they may be later identified.

Criminal defense attorneys hear this garbage all the time. Basically, it’s a way of saying ‘this police officer is better than everyone else at (fill in the blank) because we sent him to a class about it.”

Well, it worked for Columbo didn’t it? Wasn’t he able to immediately and accurately attach himself to the murderer within 30 seconds of arriving on scene? Must have been his special ‘police training’.

Unfortunately for the innocent defendant, it turns out that real life doesn’t work exactly like it does on TV. As Eyewitness ID Reform points out:

In fact, the specific question of cops vs. college students as eyewitnesses has been studied, and all the evidence shows that trained police are no better at remembering perpetrator identities than random college students. See, for example, a 1998 study by Christianson & Karlsson: Police personnel as witnesses to a violent crime, 3 L. & Crim. Psychol. 59 (1998) (cops are no better at identifying perpetrators than civilian college students).

And yet judges continue to rely on this false notion in rendering critical decisions, and in turn juries end up relying on the same false notion in their deliberations, because actual experts are prohibited from testifying to the actual scientific findings that clearly clash with the widely held common sense view.

Mind you, this comes up in the context of a Federal Judge denying a defendant the opportunity to put on his witness to explain to the jury that mistakes happen. All the time in this context.

That’s right. You are on trial for your life and liberty, facing prison time, and you want to be able to explain the real science of mistaken identification to the jury…but the judge won’t let you…because, after all, the witness against you is a cop. And they are special.

Sure, scientific studies have documented that they aren’t any better able to identify folks than anyone else. But the prosecutor will be allowed to argue that they are. And you are denied the opportunity to present the scientific truth.

Eventually, Wikipedia is going to have an entry about Eyewitness Identification.

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I’ve been thinking about posting about Mike Nifong’s disbarment, but before I got around to it, I ran across this excellent piece from an Austin prosecutor:

I don't believe in punishment for prosecutors who are simply wrong (the job inherently requires people to make important decisions, sometimes based upon limited information), but Nifong ignored crucial evidence while seeking indictments, withheld exculpatory evidence from the defense (a huge no no for prosecutors), and may have even perjured himself regarding the availability of certain evidence when responding to inquiries by the court…

The only thing that I find remarkable about the case is how much retribution is being heaped upon Nifong for his overzealous prosecution. I say this not because he is undeserving of it, but because this is probably not an entirely isolated incident in which prosecutors are aggressively and unethically prosecuting defendants whose guilt they have very good reason to doubt…

Even if overzealous, unjust prosecutions result in a correct verdict and exonerate some wrongly accused defendants, the typical low income defendant is unlikely to see the kind of justice meted out against an overzealous prosecutor on their case the way that it is currently being delivered to Mike Nifong.

Jason is exactly right, of course. Let’s not miss the point of the disbarment. Yes, these defendant’s were incorrectly charged, but it was the District Attorney’s grossly unethical behavior that got him in trouble. As well it should have.

It is neither unusual nor unethical for a prosecutor to indict an innocent person. They have no real way of knowing whether the person is actually factually 100% guilty. As they like to say in voir dire, only witnesses know the truth (and sometimes not even then), and jurors and lawyers involved can’t be witnesses in a case.

Nifong’s unethical behavior was hiding facts and evidence from the defense that showed that they were not guilty, and then lying to the Court about it. I suspect that it was the dishonesty with the judge that truly hung Nifong, rather than not turning over what we lawyers call Brady material.

As they say, it’s usually the cover up that gets folks in trouble.

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A “blogversation” has broken out. It started when Simple Justice responded to my post about Expunction/Expungement, noting that is not available to New Yorkers:

Personally, I think it’s a bit bizarre when Texas law is a step ahead of New York when it comes to something like expungement.  Remember, this is the state that puts defendants to death when their lawyer is fast asleep at trial. 

But the point of this post is that there are significant differences in the law and practice from place to place.  Having tried cases as far away as Anchorage, Alaska, I've come to realize and appreciate that understanding local practice matters. 

Then from Mark Bennett, a laundry list of the ways criminal justice is better in Texas. Next Gideon jumps into the fray, analyzing similarities and differences in Connecticut. Noticing that Mark has listed “You have a right to a jury trial. No ifs or buts.” he comments:

I had no idea that in some states, you didn’t have the right to a trial by jury.

Well, apparently New Jersey, Hawaii, Nevada and Arizona are OK denying the right to jury trial in DWI/DUI cases. (Perhaps I’ll comment on the Duncan v. Louisiana Supreme Court decision that layed the groundwork for that sometime.)  So I’m siding with Mark in saying, thank goodness Texas defendant’s get that old jury trial in “just a misdemeanor” DWI cases.

So how about it folks? Let’s hear from criminal defense attorneys in other states about regional differences in the practice of law…

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Someone called and asked me this today: Why did my deferred prosecution show up on a criminal background check?

They had successfully completed a Travis County Deferred Prosecution agreement for a shoplifting (theft) charge. The terms of the agreement were:

• Complete 50 hours of community service
• Attend a Theft/Shoplifting Class
• Stay out of trouble for 1 year

Like all Austin Deferred Prosecution agreements, the case had been dismissed “up front”; meaning that the State dismissed the Theft charge when the agreement was signed, and came back and checked after a year to see whether the defendant had lived up to their end of the bargain.

The defendant had already turned in proof of the community service, and the certificate for completing the class, and had not gotten into any trouble.

Unfortunately for them, during a routine criminal background check by their employer, the arrest “showed up”. Why?

Because they had not gone back after the year was up and expunged the arrest.

Here’s the deal. Let’s say you were arrested in Austin and charged with [DWI, or Assault Family Violence, or Theft, etc.]

An officer with the Austin Police Department arrested you. You were booked into the Travis County Jail and turned over to the custody of the Travis County Sheriff’s Office (the folks in the brown uniforms). You were interviewed by Pre-Trial Services for a Personal Bond. You were magistrated by an Austin Municipal Court Judge.

(This next part of my hypothetical never happens, but I’m using it to prove a point…) As you are walking out the door of the jail, the prosecutor meets you at the door with a dismissal, and admits that a mistake was made: you should never have been arrested. You are free to go. You are no longer on bond. You don’t have ot go to court (or hire a lawyer).

Well…is that the end of the story? No!

All those agencies I mentioned will have a record that you were arrested in Austin, Texas on [a certain date] and charged with [whatever criminal offense]. Several more agencies, such as D.P.S., the County and/or District Attorney’s Offices, TCIC, NCIC (Texas & National Crime Information Centers) will have a that same record of your arrest in a matter of days or weeks.

Same thing when you hire a lawyer and get your case dismissed. There is still a record of your arrest. And that’s what expungement is for.

An Expunction is simply a civil lawsuit against all the government agencies that have a record of your dismissed or acquitted case, demanding that they destroy the records of the arrest.

Why is that necessary? Because, unfortunately, folks think that where there’s smoke, there’s fire. If they see that you were arrested, they very well may assume that you were guilty, even if you weren’t convicted.

Bottom Line? Getting a dismissal is not the same as “getting the arrest off your record.”

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The statute of limitations does not preclude the State from prosecuting an individual just because “X number of years” has passed since the date of the alleged offense. I start with that, because as a practicing criminal defense attorney, I find that people think that’s what it means.

The statute of limitations merely requires the State to file a formal charging instrument against the defendant within a certain time period. In Texas, the statute is 2 years for all misdemeanors, at least 3 years for felonies and sometimes more. (also see: more info about specific time periods for the Texas statute of limitations.)

Let’s use an assault arrest in Austin, Texas as an example.

If it’s a misdemeanor assault, the statute of limitations is 2 years. The Travis County County Attorney’s Office prosecutes misdemeanors, so they have two years to file a complaint and information at the Travis County Clerk’s office charging you with misdemeanor assault.

A complaint is a sworn document in which someone states under oath that they have “good reason to believe” that you committed the offense of misdemeanor assault. The information is the formal charging instrument, and for all intents and purposes is usually an almost verbatim copy of the complaint.

Once these documents are filed, the statute of limitations is “tolled”; that is, it stops running.

So, hypothetically speaking, if the prosecutor files the complaint and information in the 23^rd month after the assault is alleged to haave happened, they are not required to take your case to trial in the next month. (If only it were so, because that would almost always be a practical impossibility for them.)

The case would then run its normal course, with all the resets and continuances for discovery that happen in any criminal case.

If it’s a felony assault, the statute of limitations is 3 years. The Travis County District Attorney’s Office handles felonies, so they have 3 years to take your case to a Grand Jury for indictment. Again, if you were indicted in the 35^th month, the statute stops running, and the case could drag on well past 3 years after the date of offense.

Now, as a practical matter, this doesn’t happen very often. But, again, as long as the state filed the charging instrument, either an ‘information’ for a misdemeanor, or got a Grand Jury to return an indictment, the statute of limitations no longer applies.

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When a defense lawyer tries a criminal possession case, the jury must be asked about the “intentional and knowing” element of a possession charge during voir dire.

The reason? Unknowingly possessing contraband is not criminal.

Dan Browning of the Minneapolis Star-Tribune wrote an article today about the acquittal of a computer consultant on possession of child pornography charges in Federal Court. (Hat Tip: CyberCrime)

There was never a dispute about whether the defendant possessed the computer, nor whether images of child pornography were found on the computer. The defense, however, hammered on the government’s inability to prove that the defendant knew that the images were on the computer, or intended them to be there:

Sarah Snider, the forewoman of the jury… said jurors examined the computer logs and discovered that Furukawa had downloaded thousands of files. The child porn files were "few and far between," she said. "It's our belief he wasn't looking for it."

DeAnn Roy, another juror, said no one disputed that the images were illegal child porn. "We just didn't see proof that he knew, or that he willingly had that on his computer."

Good job done here by the defense lawyer Daniel Gerdts in properly focusing the jury on holding the government to its burden. Too often jurors believe that simply possessing something is a crime, without forcing the State to prove that the defendant knew he was in possession of something illegal.

[Also see my thoughts on Jury Selection and the Unwitting Possession Defense.]

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My wife is a fan of what I call “Forensic Files, etc.” – meaning all of those true crime TV shows that have popped up over the last 5 to 10 years or so. (Despite being a criminal defense lawyer, I can barely stand to watch those shows myself.)

I walked by the living room as she was watching the end of last night’s Dateline NBC “Scenes from a Murder” episode about an ultimately still unsolved investigation of a young woman’s death.

I’ll quote the part that caught my ear later in the post, but for starters, here’s my wife’s recap of the events.

Young woman found dead. Years of investigation with multiple investigators lead to suspects including: the fraternity boyfriend, the neighbor (eventually incarcerated for a different violent crime), and even the brother, father and mother are accused of complicity at one point, albeit by a disgruntled out of town police officer who became upset when he was no longer being considered for an acting/directing role in a possible movie.

Bottom line: unsolved violent crime. Unlikely to ever be solved.

Now here’s what caught my attention. As Keith Morrison, the narrator, is wrapping up, he says:

As for [the Sheriff], he says he’s determined still that someone will be charged with the murder of Jennifer Morgan.

That someone be charged. Not that the killer is finally found. That “someone be charged”.

And now to innocents in prison.

The feeling that someone must pay, especially for gruesome and violent crimes, is so strong, that it often leads police, D.A.’s, and juries to feel compelled to “solve” a murder with a ‘Guilty’ verdict.

After all, we know someone did it, right? If no one is convicted, justice has not been served.

How many murder investigations have actually lead to indictments by prosecutors of “the only person we know who to charge”? Or indictments of “the spouse because they are the best suspect”?

Follow that up with a trial where the jury is given no other option as to who will ever go to prison for this crime…and you end up with defendants convicted on extremely shaky evidence.

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It’s probably just a typo, but when I check stats, I see a lot of searches for “statue of limitations”.

Click here for information on the “Statute of Limitations”.

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First year law students are taught in Criminal Law that offenses usually include an “actus reus” and a “mens rea”; that is, a “bad act” combined with a “bad intent”. With only a few notable exceptions, such as traffic tickets or DWI/DUI, all criminal prosecutions require the State to prove that the defendant intentionally committed a criminal act.

Keep that in mind as we discuss Pierre’s personal story of how a trip to McDonald’s landed his friend in hot water.

Pierre’s friend had received a $5 bill in change at a parking garage. Later he and Pierre went to McDonald’s for a nutritious lunch and attempted to pay with that $5 bill. The cashier/manager marked the bill with one of those counterfeit pens, and declared it to be a fake.

After pulling another $5 out to pay, the two seat themselves in the restaurant to enjoy their meal. Meanwhile, the police are called, because that’s what happens when counterfeit money is detected.   The friend is, of course, eventually questioned by the police:

The cop walks up to our table. “Sir, do you know this is counterfeit bill?”

“Well, I do now,” my friend responds.

At this point the cop holds the bill up the lights. I must say it was a pretty well made bill. “Sir stand up.”

“OK.”

“Place your hands behind your back.”

That’s right. This person was taken into custody, and escorted by two armed police officers out of the building. To make matters worse, he was only read his Miranda Rights after requesting that the officer do so. Now, he wasn’t taken downtown, and was released after 10 minutes or so of interrogation.

So what’s the big deal? Minor interruption and the police eventually did the right thing by releasing the friend, right? Well…

Why did the policeman ask whether he knew it was counterfeit? Because, obviously, unintentionally passing counterfeit bills is not a criminal act. And there’s no other way of interpreting the statement, “Well, I do now” as anything other than “I didn’t know when I gave it to the cashier.”

Sure, the criminal mastermind might be lying to the police, and more investigation is necessary. [This same mastermind just parked himself at a table waiting for the police to arrive after being alerted that his bill hadn’t passed muster.]

But, despite making the eventual correct decision to let the kid go, what two things did the police do wrong here?

First, and most obviously, they arrested the real victim of the crime itself. Handcuffing him is an arrest in this situation, and he’s the one who is out the $5, not Mickey D’s.

Secondly, and perhaps more importantly, the questioned him after the arrest (handcuffing) presumable about the incident. Had this actually been the culprit, and had they gotten a confession, the failure to read the Miranda warnings would probably have made any statements inadmissible in court.

So, from a common sense perspective (this probably isn’t the bad guy) and from a legal perspective (better to interrogate/ask questions before an arrest) the officer’s decision making process was thoroughly flawed.  And, by the way, even ten minutes in handcuffs doesn't feel like a "minor interruption" when you are being investigated for a federal offense.

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The currently ongoing Conrad Black trial is the jumping off point for TIME Magazine’s recent article “The Benefits of Doubt,” which discusses the meaning of “beyond a reasonable doubt”. (Hat Tip: Anne Reed at Deliberations)

The article highlights a serious issue confronting all criminal defense practitioners: what does “beyond a reasonable doubt” really mean, and how do you convey that to a jury? Unfortunately, it is very imprecise.

…in practice, reasonable doubt may make convictions too easy. At least half a dozen studies have found that when the prosecution's case isn't airtight, juries often interpret "beyond a reasonable doubt" to mean, in effect, probably guilty.

In one study, prospective jurors said they would be willing to convict on a 60% chance that the suspect had committed the crime.

Sixty percent! And possibly as low as “more than fifty percent”, if the jury uses a “probably guilty” standard. That’s frightening.

I’ll post more soon on some effective voir dire/jury selection techniques for maximizing your chances that a jury will truly hold the government to “proof beyond all reasonable doubt”.

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We will be hearing a great deal more over the coming days/weeks/months about Georgia Thompson, primarily because her case is now being investigated by Congress in the dismissal of US Attorneys controversy. 

But the recent appellate decision by the 7th US Court of Appeals that not only reversed her conviction, but actually acquitted her and ordered her release the same day is perhaps more notable for what it says about our criminal justice system, and how juries react to “evidence” than it is for the political fallout.

The jury convicted Ms. Thompson of 2 federal felony charges: causing misapplication of funds, and participating in a scheme to defraud the State of Wisconsin of the right to honest services, supposedly because she was involved in awarding a government contract to a company, not because they deserved it, but because she knew they had made a legal political donation to a sitting Democratic governor. In other words, for steering the contract to the company on the basis of essentially a kickback.

Now, without regard to the political motivation for the prosecution in the first place, was there even one tiny flaw with the Government’s case? Well…

No evidence, none, zip, zilch, nada to indicate that Ms. Thompson even knew that the company had donated to the governor’s campaign. Nothing. Literally nothing. (And again, it was a legal contribution.)

Listen here to approximately minute 12:30 of the oral arguments, where the State’s Attorney is asked, right off the bat:

Judge: Is your opponent correct that there is nothing in the record to indicate that the lady was aware of any contribution?

State’s Attorney: Of contributions specifically, that’s correct…

Shame on the prosecutors for bringing such a case in the first place. No evidence is no evidence, smoke and mirrors not withstanding.

Human beings know that where there’s smoke, there’s fire, and too often this concept is applied by juries in criminal cases. The general public is probably unaware of how rare it is for an appellate court to not only reverse a conviction (say, because some evidence was improperly introduced, necessitating a new trial) but to actually acquit a defendant.

Ordering her immediate release is possibly unprecedented. And even further proof that the State’s case wasn’t just weak, but truly unjust.

We have to be able to rely on juries, however, to correct such blatant errors of prosecutorial overreaching.

Our jury system may be the best thing going, but this is pretty firm proof that juries wrongly convict more often than we like to admit.

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From Scott Turow’s excellent Op-Ed piece, “Still Guilty After All These Years”, in yesterday’s New York Times:

The law has always feared the hazards of long-delayed prosecutions. The chief concern impelling limitations - that memories dim over time and that evidence is likely to become lost or dispersed - appears at first blush to be irrelevant in the face of today’s more exacting science.

If DNA can prove, within 99.9 percent certainty, that a defendant was the perpetrator of an unsolved rape, why not send him to prison? Yet what if his defense to the charge is consent?

Forensic science can often establish identity with near certainty, but it is not a time machine that can transport us backward so that we recapture every nuance of a largely forgotten event…

Statutes of limitations have also traditionally embodied a moral judgment that if a person has lived blamelessly for a significant time, he should not have the anxiety of potential prosecution hanging over him forever.

The practical reasons that Turow talks about, that is, the increased difficulty of mounting a defense for an innocent person, is important but it is the second reason that is more compelling still…

Should a man have to face charges for something he supposedly did more than 5 years before? 10? 20?

Who among us can say we’ve never “gotten away with something”?

Bearing in mind that all United States jurisdictions allow the Government a lifetime to prosecute murder, do we really need to extend the limits for prosecuting non-violent crimes?

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Wayne Schiess, director of Legal Writing at the University of Texas Law School (as well as my teacher when I was there) has been blogging about some common sense plain English language revisions for jury instructions in Texas court rooms. I whole heartedly applaud any efforts we can make to turn “what the judge tells the jury about the law” into “something that reasonable people can understand”.

Who knows how many cases have mistakenly turned because a jury misunderstood the legal mumbo jumbo that is now quite frequently given to them?

I also agree with Schiess when he writes:

It's easy to poke fun at archaic jury instructions. Harder to rewrite them…

Read Schiess’ latest blog entries for some concrete examples of poorly worded instructions (as well as his efforts to come up with some well needed reform language).

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In voir dire, both the prosecutor and the defense lawyer will ask various questions to the panel of potential jurors about their thoughts on punishment, if the defendant has elected to seek jury rather than judge punishment. Obviously, this can be tricky proposition for the defense, because you need to know their feelings on the subject, without making it seem like you are expecting a guilty verdict in the first place.

Not surprisingly, the defense often focuses on the potential juror’s ability to sentence his client on the low end of the punishment range. Prosecutors do their best to weed these people out.

The law now requires that a juror be able to consider the full range of punishment for any particular offense they sit in judgment on. Not that they promise to give the low end of the punishment range, simply that they could consider it an appropriate case.

According to Texas Code of Criminal Procedure Section 35.16, both the State and the Defense are allowed “challenges for cause” when a potential juror shows a bias or prejudice against any phase of the law upon which the [State or Defense] is entitled to rely for conviction or punishment”.

This means, for example, if a potential juror says he could never convict anyone of Possession of Marijuana, because he thinks the law is silly/stupid/immoral/whatever, the State is automatically allowed to boot that sane, forward thinking person off the jury. “Shows a bias against the law, your honor.” “Strike granted.”

And now, Grits for Breakfast points our attention to HB 1577 which is clearly intended to skew jury pools in the state’s favor. It would amend CCP Section 35.16 by adding this language:

(d)  The state or the defense may not make a challenge for cause against a juror solely because the juror indicates that, if the defendant is found guilty, the juror will be unable or unwilling to consider recommending to the judge that the judge suspend the imposition of the sentence and place the defendant on community supervision under Article 42.12.

Plain language translation? The defense lawyer would no longer be able to disqualify someone from the jury, “solely” for the reason that they said, “Yes, I could convict the defendant – but even though he was eligible for probation under the law, I could never give it to him.” (The amendment pretends to be fair by not allowing the State to disqualify someone for the same reason – however, it should be patently obvious that this rule would always benefit the State, and never the defense.)

As usual, Scott hits the nail on the head with some plain common sense (i.e., non-lawyer, non-legislator) thinking:

That's a rotten idea. In death penalty cases, jurors are routinely disqualified because they don't think they can support the full range of punishments on the high end.

If that's acceptable, then jurors who say they couldn't administer the LOW end of punishments should be similarly disqualified for the same reason - they cannot promise to consider the full range of penalties available under the law. What's good for the goose is good for the gander.

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KC Johnson, author of the blog Durham-in-Wonderland, discusses prosecutor Mike Nifong’s inconsistent statements…first in a public hearing with a judge, then in a letter to the State Bar.

At issue, of course, is his meeting with Dr. Brian Meehan where it now seems clear that they agreed to withhold exculpatory evidence from the defense. It is now a matter of public record that Meehan told Nifong about the presence of multiple unidentified males on the accuser’s rape kit on April 10th. 

In June, the defense asked for the complete rape kit in a discovery motion. They also asked that the prosecutor memorialize his conversation with the doctor about the results. The judge denied their motion.

Now Nifong has denied to the State Bar that the meeting ever took place.

But, back to the inconsistent statements about the meeting itself, and whether it even occurred.  How could Nifong have tripped up in his letter to the bar, and contradicted his previous public and transcribed account?

Here’s where Johnson nails it:

Given the significance of the April 10 meeting, how could Nifong have been caught flat-footed by [defense attorney] Cheshire’s discussion of it?

The context of the hearing explains why.

In June, the key issue was not when Nifong met with Meehan, but whether the court would force the district attorney to memorialize two conversations—his April 10 meeting with Meehan, and his April 11 meeting with the accuser—and turn over additional items from what appeared to be an incomplete rape kit…

Meanwhile, on the conversations, Nifong focused most of his effort on explaining why the reliably pro-prosecution [Judge] Stephens should not require… him to memorialize what the accuser did or did not say in their April 11 meeting.

“It was not a meeting,” Nifong declared, “to discuss the specifics of the evidence in this case. Other matters were discussed, which, again, are not matters that are subject to discovery.”

So that’s indeed how Nifong got himself in this mess. But there’s a much bigger issue involved here:

Discovery in criminal prosecutions should not be limited. In any way. Ever.

The heart of the problem, particularly from the perspective of the wrongfully accused, is that their lawyer can’t walk into the DA’s office and have immediate, full, complete access to everything in the file.

I’ve previously discussed the Texas rules on criminal discovery, and we see here another example of the types of problems when the State is allowed to play hide and go seek with evidence.

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The U.S. Supreme Court decided Whorton v. Bockting yesterday, announcing that the rule in Crawford v. Washington will not be retroactively applied to cases that became final on direct appeal before the Crawford decision.

Some quick history here: Crawford overruled Ohio v. Roberts, and held that the Confrontation Clause meant exactly what it said… criminal defendants have the right to confront their accuser, in open court, and cross examine them about their allegations. The Roberts decision allowed hearsay testimony of unavailable witnesses if the statement bore “sufficient indicia of reliability”. But the Crawford decision changed that to “only where the defendant has had a prior opportunity to cross-examine” the witness.

In truth, Whorton v. Bockting is more a procedural rather than a substantive decision which discusses at length the rule laid out in Teague v. Lane. Teague is the Supreme Court decision laying the framework for retroactivity analysis for “new rules”. New rules are only to be applied to old cases if they (1) are substantive or (2) are watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.

The Whorton decision then goes on to explain that Mr. Bockting’s right to cross examine the witness against him fits neither of those categories.

Legal academics and Supreme Court watchers can expound all they like about why this is correct, but let me try to illustrate why it is not. As a practicing criminal defense attorney in Austin, I can imagine now having the following conversation with a client.

Q: I was convicted without being allowed to cross examine the witness against me, and the Supreme Court has ruled that violates the Bill of Rights, correct?

A: That’s true. Defendants have a right now under Crawford to either disallow “testimonial evidence” by way of hearsay, or to confront their accuser.

Q: I’ve been sitting in (jail/prison) for some time now based on that conviction…I can get a new trial, right?

A: Well, no. Your appeal was final before they decided Crawford, so you’re out of luck.

Q: You mean because I have been imprisoned for so long that my initial appeal process actually expired, I can no longer get that fair trial, where my lawyer can at least ask questions of my accuser in front of the jury?

A: Well, that’s what the Supreme Court decided. Yes, from now on, people have the right to confront their accusers because of Crawford, but not you. You have to serve out the rest of your sentence.

Ridiculous. Outrageous even. I’ll have some more posts in the next few days about this case, regarding the practical (i.e. real) reasons the Supreme Court ruled the way it did.

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From an article in Science Daily detailing a University of Virginia study published in Psychonomic Bulletin and Review titled “I misremember it well: Why older adults are unreliable eyewitnesses”:

Dodson and U.Va. graduate student Lacy Krueger studied “suggestibility errors,” instances where people come to believe that a particular event occurred, when in fact, the event was merely suggested to them and did not actually occur.

They found through a series of experiments that when younger and older adults were matched on their overall memory for experienced events, both groups showed comparable rates of suggestibility errors in which they claimed to have seen events in a video that had been suggested in a subsequent questionnaire.

Both groups were also asked to rate how certain they were about their memories. From the abstract of the article itself:

However, older adults were—alarmingly—most likely to commit suggestibility errors when they were most confident about the correctness of their response.

By contrast, their younger, accuracy-matched counterparts were most likely to commit these errors when they were uncertain about the accuracy of their response.

This study is, therefore, perhaps less instructive about the comparable reliability of older vs. younger adults when it comes to eyewitness testimony. When the researchers compared between age groups but within the same overall accuracy range, they found that older witnesses were more certain of their wrong memories than their younger counterparts.

It’s the witness’ conclusion about how certain they were that is most disturbing here. In older adults, certainty and accuracy were inversely correlated.

From a criminal defense lawyer’s perspective there’s nothing more difficult to deal with, than a witness who is sincerely, but wrongfully accusing someone.

[Source for post: Idealawg]

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The Federal Sentencing Guidelines themselves – and how they can and should be interpreted and applied – are up for debate in the U.S. Supreme Court tomorrow morning, in two cases: Rita v. United States and Claiborne v. United States.

I’ll be posting more on this after oral argument, but here are some reasons for hope among those who believe that ridiculously long penitentiary sentences for drug offenses (inter alia) are morally, fiscally and constitutionally wrong:

(1) After deciding Booker, the Supreme Court has focused more on the first part of its opinion than the second. 

Translation? The first part of Booker declared the portion of the guidelines that forced judges to increase mandatory minimum sentences based on facts not found by a jury (or admitted by the defendant) to be unconstitutional.

However, the second part of the opinion attempted to save the Guidelines from the dustbin of unconstitutionality by declaring them “advisory”, not mandatory.

The problem has been two fold: (a) no one knows what this really means and (b) as a practical matter, defendants have not gotten any benefit of the doubt. If the judge wants to go above the guidelines, appellate courts have mostly been affirming. However, below guidelines sentences have almost uniformly been reversed. That’s a step in the wrong direction.

If the questions and answers focus more on the unconstitutionality of the Guidelines, rather than on how to remedy them, we may be in for a treat.

(2) Chief Justice Roberts came down on the right side of Cunningham v. California; his predecessor Rehnquist surely would not have.  That lets us know that Roberts believes in the “right to a jury trial” part of the whole Apprendi/Blakely/Booker line of cases.

We’ll know more after oral argument. Stay tuned…

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There’s an interesting conversation going on over at Sarena Straus’ Prosecutor Post-Script where in a series of posts and comments the author and readers discuss various issues in prosecutorial ethics.

In “Who decides when to prosecute?” she discusses the considerations involved when a prosecutor “overrules” the wishes of a complainant in an assault case. Sarena points out this comes in two forms: victims unhappy with a plea agreement that is too lenient, and ones that don’t want to prosecute the case at all.

The first post sparks a question from a reader: “"It's interesting to see the thought process behind when to prosecute. What sort of plea deal would you make with someone who was unlikely to be convicted at trial?” Sarena answers the question in part by posing a “typical hypothetical offered by DA's offices when interviewing prospective ADAs”:

Lets say that you have a one witness case that you are about to take to trial. It is a case where you believe in the defendant's guilt and where proof beyond a reasonable doubt is possible. Without that one witness, however, you cannot prove the case.

The morning that you are about to start trial, you get a call that your witness died. You go to the courtroom, but before you can tell the judge that you have to dismiss the case, the defense attorney says that his client wants to plead guilty.

Do you take the plea or do you tell him your witness is dead and that you have to dismiss the case?

Since I never interviewed with a County or District Attorney’s Office, hypotheticals like that take me back to my law school days…let me give it a shot.

There’s really two separate questions being asked here (which is what makes it interesting): (1) As a prosecutor, are you required by Brady v. Maryland to disclose the unavailability of witnesses to the defense attorney?  (2) If not, should you anyway?

My off the cuff guess (read: I didn’t bother to research it this morning while writing this post) is that the caselaw interpreting Brady doesn’t require the prosecutor to disclose that information. If anyone out there knows of caselaw to the contrary, please contact me, because it would somewhat put the issue to rest.

(I’d also like to think that the best defense lawyers out there do thorough investigations, including, of course, interviewing all witnesses…but it sounds like the witness just died, so I can see the attorney not knowing.)

The second question therefore becomes “Under what circumstances should you disclose this information?” In a lengthy comment WindyPundit suggests:

There's a lot to be said for telling the defense attorney how lucky his client is and dismissing the case, just to improve your rep as a straight shooter.

True, but not all prosecutors are concerned about their reputations in the criminal defense bar. My experience tells me that the defense lawyer needs to worry about his own reputation for truthfulness and honesty, more than a prosecutor need worry about his.

Sarena promises to give her own answer soon, but states that she thinks most comments so far are coming from the defense perspective, and would like other prosecutors to weigh in first…(that means you too Steanso)

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There’s been quite a stir in the blogosphere over the Supreme Court decision in Cunningham v. California. Much of it has lamented the fact that the convicted defendant’s sentence was lowered as a result of the decision, without much thought about the principles involved.

Actually, it’s quite simple really. The Supreme Court invalidated that part of California’s sentencing that allowed a judge to impose a higher sentence than the jury verdict authorized.

Let’s take a look at it from the perspective of the laws in Texas on Assault. The three main categories of assault in Texas are: Class C Assault – offensive touch, Class A Assault –bodily injury, and Aggravated Assault – serious bodily injury or deadly weapon.

These three range from a traffic ticket level offense, punished by no jail but up to $500, to a second degree felony, punished by up to 20 years in prison. Obviously, that makes quite a difference.

Let’s say you were charged with assault, because someone filed a complaint against you for pinching them, and they found that offensive. That’s a Class C.

You want to dispute the charges, and you go to jury trial and lose – the jury finds you guilty, of Class C offensive touch. Now, while that’s bad enough, here’s what California’s scheme effectively did before it was struck down.

It allowed the judge then to make a finding that there was either serious bodily injury involved, or that you used or displayed a deadly weapon, even though neither of these issues was submitted to the jury. The judge, after making the finding, elevates your offense to a second degree felony and sentences you to the 20 year maximum for that charge. 

Or 5 years. Or anything within the 2-20 year and up to $10,000 range. (This isn’t the case in Texas – I’m just using this as an example.)

California v. Cunningham simply said that if there were facts to be decided that increased a defendant’s punishment (other than prior convictions), that those facts had to be admitted by the defendant, or submitted to a jury and proven by the prosecution beyond a reasonable doubt.

When you take a look at it from the proper perspective, it makes perfect sense. After all, isn’t that what trial by jury is supposed to mean in the first place?

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Ray Suarez started his questioning of Marcia Coyle about yesterday’s Supreme Court Cunningham decision with the following:

Today, the U.S. Supreme Court struck down California’s Sentencing Guidelines which had allowed judges the discretion to increase prison time for convicted criminals based on factors not considered by a jury during trial.

As a fan of the NewsHour, I’ll give credit where it’s due: this summation actually does a better job of legitimately stating the issues involved in the case than most major media outlet were able to accomplish. Yet it’s a heck of a loaded beginning for this story.

First we hear the phrase about allowing judges discretion to “increase prison time for convicted criminals”. That sure sounds like a good thing doesn’t it, why would the Supreme Court disallow that? But what’s the alternative? Increasing prison time for acquitted defendants? (We are pretty close to that already.)

And the phrase “based on factors not considered by a jury during trial” is pretty watered down. Yet this is exactly what was at issue in the case. The intro would be better phrased:

Today, the U.S. Supreme Court struck down California’s Sentencing Guidelines which had allowed judges to increase prison time above the maximum allowable punishment for some crimes, despite a jury not convicting the defendant of the aggravating factors.

I wrote that in a hurry, and perhaps it could use some copywriting help, but it properly focuses the listener on the real issue involved in the case. 

The right to a jury trial means, essentially, the jury must convict you beyond a reasonable doubt, and no judge may increase your punishment based on “factors not considered by a jury during trial”.  Thank goodness six justices of the Supreme Court are starting to enforce that right.

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Sarena Straus writes about the dangers of jurors judging the demeanor of a witness and deducing truthfulness:

As a prosecutor I learned that there is no pattern to how people grieve or react to trauma. In fact, the bulk of my voir dire often focused on whether the jury would hold it against the victim if they did not cry. In my experience, most rape victims did not cry on the stand and often they had a very flat affect while testifying.

She also points out that this applies to those who are accused of crime as well:

The other thing I learned is that people do hold it against victims and defendants when they behave in a way that the juror thinks they themselves would not behave. They think, “If I was raped, I would cry,” or “If my husband died, I would not have a party.” The truth is that you never know how you will behave when you have been traumatized or you are grieving.

Good points. And defense lawyers need to be especially aware of covering this sort of “evidence” in jury selection, as Sarena points out.

If you remember the Darlie Routier case, several jurors said the strongest evidence was the videotape of the family having a birthday party and using silly string four days after the murders. They just knew they wouldn’t have done that, so they convicted her…

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Texas prosecutors are bound by both the Federal and State Constitutions in prosecuting defendants, and sometimes the Texas Constitution provides more protections for those accused than at the Federal level.

In 1982, the U.S. Supreme Court decided Oregon v. Kennedy, which addressed what sort of prosecutorial misconduct during trial would bar the state from reprosecuting the defendant. Written by the notoriously pro-prosecution Chief Justice Rehnquist, the case laid out the federal standard: it’s not enough for the defendant to show that there was prosecutorial misconduct which made mistrial a necessity. The defendant had to show that it was the prosecutor’s intention to cause a mistrial.

Mind you, the purpose of the Double Jeopardy clause is to protect the citizen from repeated prosecutions for the same offense, and in this case, we are talking about mistrials which were caused by the prosecutor.

In 1996, in Bauder v State, the Texas Court of Criminal Appeals adopted a slightly fairer interpretation of Texas’ Double Jeopardy clause, insisting that retrial be barred where “the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial”.

“Require a mistrial” – that’s fairly egregious misconduct by the prosecutor we’re talking about – not just any old “objection sustained”. The types of things that require mistrial in Texas are pretty few and far between – for example, a prosecutor asking a witness about a prior arrest of the defendant where he had been acquitted, something that’s clearly not admissible.

Unfortunately, the Texas Court of Criminal Appeals decided to abandon the principle of stare decisis, and overruled the Bauder decision this week in a decision called Ex Parte Lewis. Basically they said it was too difficult to determine when the prosecutor had recklessly caused a mistrial, and they adopted the Oregon v. Kennedy standard instead.

Let me ask you this: if it was difficult to determine whether the prosecutor was reckless in the introduction of clearly inadmissible, unfairly prejudicial evidence against a defendant, won’t it logically now be impossible for a defendant to prove what the exact intentions of the prosecutor were who does the same thing?

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Scott Henson writes about possible pending legislative attempts mandating reciprocal discovery in Texas, where presumably both sides, prosecution and defense lawyers, would have to turn over any evidence they have to each other. Instead, he suggests:

The reform needed here isn't "reciprocal discovery," but simply to mandate that all Texas prosecutors maintain an "open file" policy to let defense counsel view and make copies of any documents they deem relevant to their defense. The system works well where it's been implemented, and where it hasn't it's a source of constant grousing and wasted time for the already clogged courts.

I agree. They are several problems, right off the bat with the idea of reciprocal discovery. 

First, in jurisdictions where turning over Brady material is already a problem for the prosecutors, I’m not sure that legislating that they turn over “their whole file” will work either. Don’t get me wrong – I love the idea of it. I’m just pointing out that when the State can’t always be trusted to turn over exculpatory evidence, aren’t we going to have the same problems knowing that they’ve turned over the whole file?

At least it will make the “May I have a copy of the police report?” problem presumably go away.

But secondly, my fear is a spate of criminal defendants having to use the state and federal appeals process complaining that their lawyer didn’t turn over evidence “in a timely fashion” that should have been used in trial – and thus was barred from introducing it. That’s what the “reciprocal” part of reciprocal discovery means. I haven’t seen any proposed legislation, but it will probably include a provision disallowing evidence that was not turned over to the state.

Defendants should have almost no bars on the type of evidence they want to bring in to trial, whether it is exculpatory, mitigating, or really, of any quality. Scott is right. Legislation requiring the State to allow full defense access to the evidence is the only common sense solution.

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I received an email today asking me this question, and it’s a pretty simple one to answer:

Yes, if you are (a) entitled to expunge each of them separately and (b) if the arrests occurred in the same county.

The Texas expunction statute requires that we file your petition to expunge your arrest in the county where you were arrested.  So if, for example, you were arrested for Public Intoxication a long time ago in Austin, and got it dismissed (most commonly by completing a deferred disposition), and then were subsequently arrested for DWI, or Theft, of Marijuana, also in Austin, and it now too qualifies for expunction, we can file one petition.

This greatly reduces the legal fees required to expunge prior criminal history, and I always inquire as to whether a client has other arrests that we can seek to erase.

Unfortunately, if the arrests happened in different counties in Texas, then two different petitions must be filed, two different sets of court costs, and more in attorney’s fees. 

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This issue has to be on the low end of problems facing the Texas criminal justice system right now, but reading Wretched of the Earth’s example of the State forcing a defendant to jury trial brought it to mind…

Of course the defendant has the right to a jury trial for any criminal charge in Texas, and I know that the system in Austin would probably be better for the accused in general if more lawyers at least urged their clients to exercise that option. Far too many cases are plead out when it is not in the defendant’s best interest to do so.

What I’m talking about is the situation where a defendant wants a Trial by Court (aka judge trial), but the State “refuses to waive jury”. What are some reasons the State might do that? Primarily for two reasons

They believe they have a tactical advantage in front of a jury. Take the example of a felony DWI in Texas, where the jury will hear about at least two prior convictions for DWI. Yes, the jury is instructed not to consider the prior convictions as evidence that the defendant committed the offense on this particular occasion, but only for “jurisdictional purposes”. (I’ll post about that legal fiction, and how it unduly prejudices the defendant in another post sometime.) Many times I believe the judges in Austin would be able to not improperly factor this into considering whether the state has proven my client guilty of DWI this time, while juries are often incapable of separating the two.

They want to stretch the case out longer.  That’s right. As in Wretched’s example, the State might know it has no case, but doesn’t want to dismiss. Jury Trials are usually reset several times before the case is old enough to be reached, while Trials Before the Court very often go the first or second time they are set. So to punish the defendant (who I’ll add, in these situations, the prosecutors believe actually is guilty, they just can’t prove it), they make him come to court again and again until his case is number one on the jury docket.

The State’s Reason Number One can be condensed into the word “cheating” – or perhaps just gaming the system to their advantage. Reason Number Two falls squarely under the “waste of taxpayer’s money” category.

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Environmental Crimes Lawyer Walter James answers this age-old defense question in his latest post. He ends by commenting that this is for one particular case, and that the decision must be made on a case by case basis.  Facts which made this particular decision easier:

The three remaining individual defendants all possessed college degrees or the equivalent of a college degree, all were very articulate, none had any prior convictions and all had impeccable character. In that respect, the only true decision left was to determine the order in which they would testify.

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From Ken Lammers at CrimLaw, comes this post.  Thank goodness her case was resolved without the need of infallible eyewitness testimony...

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The Austin American Statesman just reported that an APD seizure of marijuana, cocaine, almost fifty thousand dollars and some vehicles in a drug investigation:

Detectives conducted surveillance on the apartment and two suspects who left the apartment in separate vehicles were stopped for traffic offenses… This case remains under investigation by the Organized Crime Division.

Yes, I’ve written about the efficacy of civil forfeitures before, but is anyone else bothered by the fact that the government can (permanently) seize property in these drug raids? Anyone read between the lines and figure out the punch line here?

It’s a certainty in my mind, although unstated in the story, that Austin Police had a warrant here…but they apparently waited for the suspects to drive away from the house…why? Probably so they could make a stronger case, if necessary, for confiscation of the vehicles.

(And you guys thought the punch line was going to be that the state is seizing the property while the case is still under investigation.)

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Former prosecutor Sarena Straus proposed a hypothetical jury instruction recently in response to WindyPundit’s question “What do you wish jurors knew? Or perhaps a better question is what do you wish jurors knew that you can't tell them during a trial?” Frustrated by “the key to most unfair acquittals” she had seen in her career, she suggested jurors be told:

"The laws in New York do not allow the prosecutor to introduce evidence of prior arrests or convictions. You are to draw no inferences from the fact that the prosecutor has not introduced evidence of a criminal history. The failure of the prosecutor to introduce such evidence does not necessarily mean that the defendant has no prior criminal history. Nor should this instruction be interpreted by you do mean that the defendant does have a prior history. You must judge the defendant's guilt or innocence based on the evidence presented in this case and in this case alone."

In the comments section to that post I became the third (of the three total commenting) to suggest that this instruction would actually invite the jury to speculate about a defendant’s prior criminal history, whether he had one or not. Straus’ next post followed up on the comments, specifically referencing mine:

And some statements have been made that I flat out disagree with. For instance:  "NO jury on earth ever let a potential sex offender go free, even though they believed the evidence against him, simply because they told themselves, 'Hey, this is probably a first offense'. That sort of jury nullification might happen in misdemeanor marijuana cases, but I think that's about it."

AustinDefense misses my point. Not that juries will not convict someone based on their lack of a prior criminal history (nullify), but that juries might be more inclined to think someone is not guilty (or at least have reasonable doubt) based on thinking lack of evidence of a prior conviction means that they do not have one.

I’ll admit I’m close to missing the point. I agree that she makes a fine distinction here between nullification, and finding someone not guilty because no evidence of prior convictions was presented. In other words, her fear is that the juries will believe that the defendant is substantively not guilty because he has no priors, rather than just cutting him a break for his first offense. But then Straus continues with a specific example that frustrated her:

The most difficult case I ever handled (from an emotional standpoint) was the prosecution of a Marist Brother for raping an 11 year old student… The defendant was in his seventies and had been accused and acquitted in three prior cases. The case received significant press coverage and after the verdict some of the jurors told the reporter that part of the reason for their acquittal was their difficulty believing that someone would start committing these types of crimes at such an old age. [Emphasis Mine]

Again, using Straus’ own words that juries might think “lack of evidence of a prior conviction means that they do not have one,” I’m not sure she gives us the best example, but she does make my point. Her proposed jury instruction would probably have allowed her jury in that case to speculate about prior history, and that very well may have helped lead to a conviction.

But her example doesn’t show a jury that wasn’t allowed to hear about “prior convictions” that existed; her complaint apparently is that they weren’t instructed about prior acquittals.

[Injustice Anywhere also added a comment to the original post.]

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The general rule on the admissibility of evidence regarding how a defendant acts after an alleged crime was committed is usually that the prosecutor can introduce testimony that tends to show that the defendants actions prove he knew he was guilty (at least of something). This is labeled, at least by prosecutors, as “consciousness of guilt”.

The theory is that since in most criminal trials the prosecutor has the burden of proving the “mens rea” or intent of the defendant, actions he took to “cover up” his alleged crime are relevant. (I say “most trials”, because the state is not required to prove intent in strict liability offenses.)

The New York Times has an article today about legal arguments in former New Jersey Nets star Jayson Williams retrial on reckless manslaughter in the accidental shooting that happened at his house. He was convicted on four charges relating to tampering with the evidence after the shooting in the first trial and acquitted of aggravated manslaughter, but a mistrial was declared on the reckless manslaughter charge he once again faces.

His lawyers argued that evidence of his actions after the shooting should no longer be presented to the jury in his second trial, because it will be more prejudicial than probative. My prediction is that the evidence will be allowed. From the article:

Justice Barry T. Albin questioned how the actions of Mr. Williams, 38, differed from those of someone accused of manslaughter in the case of a hit-and-run accident or any case in which someone flees. “The prosecution always says he fled because he was guilty,” Justice Albin said. “The defense says he was scared. Why shouldn’t that evidence go to the jury?”

This probably would have been a more difficult legal question for the appeals court, if Williams had been acquitted of these charges in the first trial.

(Hat Tip: How Appealing)

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