Based On My Experience And Training

Loads of extranormal prosecution and defense lawyer comic videos going viral. The generic Why You Shouldn’t Go To Law School was followed by D.A. Confidential’s Window Into Plea Negotiations and In Defense of Defense Attorneys. Now, with a hat tip to lawyer extraordinaire Troy McKinney for putting it on the Texas Defense Lawyer listserv, come these new entries from a public defender (the second one, Supression Hearing, is the real gem):


How To Write An Anders Brief

I just read Anders v California for the first time (ever, or in a long time) in preparation for writing this post. You always hear about Anders briefs, and I have some vague notion that it’s what an appellate lawyer files when they want to tell the court that there is nothing worth appealing in their client’s case. Heck, I didn’t even know (or remember) that Anders won, by reverse and remand – which makes me fairly certain I’ve never carefully analyzed the opinion.

The gist of it is that sending a letter to the court saying,

“I will not file a brief on appeal, as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders, and have explained my views and opinions to him. . . . [H]e wishes to file a brief in this matter on his own behalf,"

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What The Miranda Rule Says...(According To TV Version)

Heard Jeffrey Toobin explaining Miranda to CNN’s Wolf Blitzer last night on the tube, and my head exploded. Sometimes a quick press of the record button, followed by several rewinds and I end up with an informal transcript of something an expert TV commentator said which ends up on my blog, but not this time. Wasn’t quick enough with the TiVo remote.

But no matter, CNN, being justifiably proud of its expert, has posted it online. Blitzer asked Toobin to “explain to our viewers about the Miranda rights” to which the expert replied:

The Miranda rule says nothing you say can be used against you in court unless you first have been read your Miranda rights.

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When Is $100,000 A Drop In The Bucket?

First, Presiding Judge of the Texas Court of Criminal Appeals Sharon Keller didn’t know she was stinking rich, and then, she simply forgot to report it as required by law. And even though she didn’t know about it, she apologized. Even though she had done nothing wrong.

From the Austin American Statesman’s Focal Point blog, Chuck Lindell:

Sharon Keller, presiding judge of the state’s highest criminal court, has been fined $100,000 by the Texas Ethics Commission for failing to fully report her income and property holdings on annual personal financial statements.

It was the largest civil penalty imposed by the commission, according to Tim Sorrells, deputy general counsel for the agency.

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Police Testimony 101

From, comes Pat McCarthy’s article “Turning Testimony from Stressful to Successful”. Before we get to the parts that a skeptical defense lawyer might highlight on his blog, let me give some kudos to the subtitle:

The baseline for all good witnesses is to just tell the truth — the benchmark for cops on the stand is that we're just doing our jobs

OK, the first part is good, tell the truth. Not that any witness who was just sworn in (“Do you solemnly swear that the testimony you shall give in the cause now pending before this court shall be the truth, the whole truth, yadda, yadda, yadda…”) should need a refresher course on the necessity of telling the truth… but, that’s certainly an admirable piece of advice to put up front in any how-to article about testifying. Especially if your audience needs that as a reminder.

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Melendez-Diaz Still Good Law

Can’t remember the last time a one sentence per curiam opinion was such good news. Here’s the entire opinion in Briscoe v. Virginia:


We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).

It is so ordered.


"Judge Keller's Conduct, However, Was Not Exemplary Of A Public Servant"

Despite the title of this post, which is a quote from the Special Master’s findings of fact before the State Commission on Judicial Conduct, this report will surely be trumpeted by the pro-death penalty crowd as exonerating Judge Keller.

And why wouldn’t it be? It comes pretty close to giving her a clean bill of health, and recommends no sanctions especially in light of the “public humiliation she has already suffered”. I have my doubts that she is doing anything other than laughing all the way to the bench, but maybe she has learned something. Hard to believe since with hindsight she claimed, under oath, that she wouldn’t do anything differently.

Mostly I find it impossible to read the decision(and I’m not sure that’s even the right word for it) without some sense of sorrow. Is this what it has come to? After we kill a man, it’s just petty bickering about who is to blame for not doing this and not thinking about that soon enough?  The decision boils down to this: "So what about Keller, his lawyers should have done a better job".

I’ve asked it before: should we kill a man because his lawyer made a mistake?

Not A Chance In H - E - Double Hockey Sticks

Houston criminal defense lawyer Mark Bennett makes sure he follows through on those pesky little certificates of service, because he doesn’t want to be accused of a criminal offense, say, tampering with a governmental record. So when a prosecutor filed a motion, and swore s/he had served Mark but hadn’t, he asked:

Are you laboring under the delusive belief that [the D.A.] won’t file charges against you?

I'm pretty sure the prosecutor was laboring under the 100% correct belief that charges won’t be filed.

But We Have A Policy

From “Neither Had Sense”:

And then there's always the resort to arrest and charges to cover up and justify their use of force.

Use of the Taser and the pepper spray appear to be justified according to the department's policy, he [Christopher Levy, a Police Department spokesman] said.

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More About Perry's Expunction Veto

On June 19th, Perry vetoed the unanimously passed expunction bill. Since then, here are some other bloggers weighing in on the topic: Grits for Breakfast, Paul Kennedy, Grant Scheiner, Doug Weathers, and last but not least, fellow Austin criminal defense lawyer Kristin Etter.

Short version? Well, let's just say that no one has had anything good to say about Governor Haircut.

Rick Perry's Definition of "More Harm Than Good"

The Governor’s reason for vetoing the expunction bill:

House Bill No. 3481 would authorize the expunction of criminal records, including law enforcement case files, 180 days after an arrest if no formal misdemeanor or felony charges have been filed. Current statutory provisions require that the statute of limitations for the particular offense, usually at least two years, expire before criminal records may be destroyed, including in cases involving misdemeanor offenses.

Actually, those statutory provisions were not put in place to deny folks the opportunity to expunge dismissed cases. It was the activist (as well as 100% Republican) Texas Supreme Court decision, State v. Beam, that incorrectly interpreted the legislature’s 2001 amendment’s to Code of Criminal Procedure Chapter 55.01 dealing with expunctions.

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Kill Him Already

It’s been twenty years. Two years after the 1989 murder of a Georgia police officer, Troy Davis was convicted and sentenced to die for the crime. He has still, eighteen long years later, still not been executed.

Former federal prosecutor and noted softie Bob Barr writes an op-ed piece in the NYT:

There is no abuse of government power more egregious than executing an innocent man. But that is exactly what may happen if the United States Supreme Court fails to intervene on behalf of Troy Davis.

Mr. Davis is facing execution for the 1989 murder of an off-duty police officer in Savannah, Ga., even though seven of the nine witnesses have recanted their testimony against him. Many of these witnesses now say they were pressured into testifying falsely against him by police officers who were understandably eager to convict someone for killing a comrade. No court has ever heard the evidence of Mr. Davis’s innocence.

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Introducing the Offense Report

Murray Newman asks “Where’s My Offense Report?” and several commenters, including Grits, chime in.

I initially rejected the idea of writing a post on this topic because I think it’s stupid. (Although I like Bennett’s tangent on ethics.) The defense ought to get Xeroxed copies of offense reports. This whole “we can’t give it to you because your scumbag client is going to nuke us all if we do” argument is… stupid and tiresome and I’ve blogged on it before. Like Scott, I can only write the same thing so many times without boring myself.

Besides, Travis County has a decent if imperfect system where defense lawyers get ORs in most cases. Perfect, if you have to ask, would be getting it in every every every case.

So I was going to skip it, until this last comment caught my eye:

Grits, the OR never gets entered into evidence...therefore, it does not become a public record. Even if we do win a case.

Apparently this anonymous prosecutor never read Texas Rule of Evidence 614, or had it used against him:


If a witness uses a writing to refresh memory for the purpose of testifying either

(1) while testifying;

(2) before testifying, in civil cases, if the court in its discretion determines it is necessary in the interests of justice; or

(3) before testifying, in criminal cases;

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. [Emphasis Added]

If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portion not so related, and order delivery of the remainder to the party entitled thereto.

Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.

If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

It doesn’t happen often, but I have had occasion to introduce an offense report after a police officer used it to “refresh his memory”. The reason it doesn’t occur frequently is that it’s only the adverse party that can do this, and as you might expect, police reports don’t always contain gems for the defense.

Except sometimes they do. I’ve got a case pending right now with what Bennett likes to call the “Nasty Little Surprise”. It’s a possession of marijuana case where I can prove that at least one very important line in the OR is a complete fabrication on the part of the officer. It’s not even necessary that the witness deny making the statement; simply that he refreshes his memory with the document, which he certainly will do.

So, if you want to, have it admitted. And allow yourself an extra chuckle if the prosecutor wasted some of his voir dire on “Why you the jury aren’t allowed to see the police report”.

When Not Seeing Is Believing

How likely are you to believe you saw something that didn’t happen? Depends on the circumstances, of course.

The January 2009 issue of Psychological Science includes a study titled “Recalling a Witnessed Event Increases Eyewitness Suggestibility: The Reversed Testing Effect”. 

Studies have already shown that receiving misinformation about witnessed events prior to recall would distort perception. The abstract of the article starts with this documented fact:

People's later memory of an event can be altered by exposure to misinformation about that event. The typical misinformation paradigm, however, does not include a recall test prior to the introduction of misinformation, contrary to what real-life eyewitnesses encounter when they report to a 911 operator or crime-scene officer.

So if you are given false information about what you saw before you start to tell your version… you’re likely to mess up the “details”. Common sense stuff. But, as is pointed out, that’s not likely to happen at a crime scene.

The authors of the article initially hypothesized that if you gave misinformation to two different sets of people about something they witnessed, letting one group tell their version before being given false details would enhance the reliability of their later recall:

Because retrieval is a powerful memory enhancer (the testing effect), recalling a witnessed event prior to receiving misinformation about it should reduce eyewitness suggestibility.

Again, it’s common sense. Who hasn’t experienced that sense of urgency? When you know you want to remember something, you start getting the details down. Maybe you tell someone; maybe you just start repeating the stuff in your head. But everyone knows that the sooner you try to recall something, the better you’ll remember it.

Except it ain’t so. The study proved just the opposite. (You’ve got to love science. The whole point of proving something using the scientific method can lead to unexpected results.)

The article is pay-per-view, but a report in Science Daily gives us some more details:

A group of volunteers watched the first episode of "24" and then either took an immediate recall test about the show or played a game. Next, all of the subjects were told false information about the episode they had seen and then took a final memory test about the show…

The researchers found that the volunteers who took the test immediately after watching the show were almost twice as likely to recall false information compared to the volunteers who played the game following the episode.

I had to read that several times for it to sink in. You watch “24”. You take a test about what you saw. Someone else, instead of immediately being asked what they saw on “24” does something completely unrelated.

Afterwards, both of you are given false information about what you watched. And then you are both tested on what you saw. You are re-tested; he’s asked for the first time.

Here’s the kicker… you are more likely than the other guy to repeat the false information:

The results of a follow-up experiment suggest that the first recall test may have improved subjects' ability to learn the false information - that is, the first test enhanced learning of new and erroneous information.

I wonder if this is related to the concept that the more certain of something you are, the less likely you are to be right about it. It wouldn’t surprise me if it turned out that folks who had been quizzed immediately felt surer about their recall than ones who weren’t. But I wouldn’t know how to test that, nor do I know whether this study attempted to.

So back to the crime scene scenario, how does this play out. Well, as the authors point out, this is the crime scene scenario… most of the time. The first paragraph of the Science Daily article asks:

For example, if you witness a man in a blue sweater stealing something, then overhear people talking about a gray shirt, how likely are you to remember the real color of the thief's sweater?

Well what if you hadn’t focused on the color of the sweater? You just saw a drug-deal-gone-bad-murder. You tell the investigators on the scene what you saw. A well meaning policeman, who had just seen Joe-the-Marijuana-Dealer in a gray shirt earlier, might well ask you, after you told him what happened, “Was he wearing a gray shirt?”

The cop might be surprised that Joe would do such a thing. After all, he’s just the guy in the neighborhood who sells a little weed. As far as he knows, Joe has no involvement in anything violent. But Joe’s the only guy he knows on the block, and when he saw Joe earlier, he was in a gray shirt.

And then, because, not in spite of, but because you have already started recounting your recollection you are more likely to falsely implicate Joe? And to repeat that mistake later?

Scary stuff.

Change of Venue Granted For Prosecutors Over Objection by the Defense?

Radley Balko asks if any criminal defense lawyers out there have ever heard of such a thing. 

Not knowing anything about the prosecution’s case except what I’ve read on his blog doesn’t stop me from agreeing with his conclusion that based on their request to transfer venue – which was denied - their case is “coming apart at the seams”.

Does the Chemist That Says "It" Was Marijuana/Cocaine Have to Testify?

It took me awhile to track down the transcript of oral arguments from Melendez-Diaz v. Massachusetts and it’s 76 pages, so frankly I’m busy and I’m going to read it later, but sometimes (perhaps frequently?) I come across someone’s commentary on a subject that I completely agree with.

In this case, I even envy the headline “You have the right to confront your accuser, as long as it's not too inconvenient”:


[Monday], the US Supreme Court heard arguments in a case that I think ought to be a no-brainer. The issue is this: in a criminal prosecution, can the state present a certified lab report as evidence without bringing in the person who prepared that report to testify? I frankly don't understand why this is even a question.

The 6th Amendment protects the right of criminal defendants to confront their accusers. It's obvious that an eyewitness who will testify he saw you commit the crime is an accuser as is the police officer who found the baggie of white powder in your coat pocket. But what about the lab tech who tested that white powder and decided it was cocaine? Well, isn't the person who says the stuff you [possessed was marijuana/cocaine/whatever] just as much of an accuser as the person who says you [possessed] it? Like I said, it seems pretty obvious to me.

At the oral argument, the tack the state of Massachusetts took was that it would be an undue burden on the state to have to bring these witnesses to court in every case. Huh? It would be too inconvenient for the state to bother with each and every defendant's confrontation clause right? Those who observed the argument don't seem to think that a majority of the court will go for the state's argument, but I'm perturbed that the argument wasn't laughed out of court. The 6th Amendment does not contain a convenience exception.


Read the whole post. It’s excellent. Sarah says she is “confident that the Court will conclude that a decision in favor of the defendant in this case won't unduly burden the 50 states”. I hope so, but I’m not sure I share her optimism.

Dismissed Case and Evidence of Innocence Still Counts as a 'Brush With the Law'

More on Cedric Benson’s arrest for Boating While Intoxicated here, but I was alternately amused and/or saddened by this line in the AP report about the recent Austin incident:

Benson had a couple of brushes with the law during his college days.

He was arrested for marijuana possession in May of 2002 in his hometown of Midland, Texas. The charges were dropped when he passed a drug test and other evidence surfaced to clear him.


The charges were dropped. He passed drug test. And, according to the writer, ‘other evidence surfaced to clear him’. But we won’t say what that was.

But, and here’s the important thing to remember, as you read this story about Benson being arrested, let’s not forget that he has had other ‘brushes with the law’.

Clearly the reporter has included this information because it’s pertinent to the main story. If we apply the well known rule that ‘where there’s smoke there’s fire’… does that mean that:

  • Because he’s been arrested before he’s more likely to be guilty this time or
  • Because his prior arrest had to be dropped - at least in part because of evidence of innocence - that ‘there go the police, arresting an innocent man again’?

I’m just asking, that’s all.

Maybe That's What They Needed Him For

Decatur lawyer Barry Wise points out that because Section 38.23 of the Texas Code of Criminal Procedure provides additional prophylactic protections to accused citizens the Virginia v. Moore decision doesn’t have any real impact in Texas. Mark Bennett wonders why then did the Texas Attorney General even bother to weigh in on the amicus brief.

Good question.

Here’s a portion from the intro:

If the States choose to do so, the Constitution permits them to provide their citizens with protections above and beyond those embodied in the Fourth Amendment.

Concurrent with the ability to create new protections, the States are also permitted to craft the remedies for violations of these state protections.

Maybe Greg Abbott was the expert they needed for that portion of the brief.

Can You Know That The Attorney Client Privilege Was Broken?

So Roger Clemens’ lawyer Rusty Hardin gave an interview to New York Lawyer magazine about his representation of the Rocket. In part:

Hardin: What is a public person to do if he's falsely accused? Why do lawyers think that the safest strategy is the best strategy? Roger has made clear that he is not interested in the safest strategy. He has made clear that his public reputation, what his family and friends think, is what he holds dear. Who the hell am I to tell him that he's wrong?

Mag: You don't think much of your critics?

Hardin: I expect second-guessing. But these people on TV, they talk about whether I should "allow" a client to testify, whether I should "allow" him to assert his innocence. Their attitude is paternalistic and patronizing. Who the hell is the lawyer to make that decision?

Mag: It seems like he was asking for trouble.

Hardin: I saw it all coming. I knew there would be a deposition and a congressional hearing. I knew there would be a criminal referral. I fully advised Roger. He made the decision. He's a grown-up.

Mag: Even if that decision sends him to jail?

Hardin: I believe strongly that people that can fight, should fight. Roger has the means, the ability, and the heart to fight. I salute him.

So Clemens’ attorney is essentially broadcasting the story that:

  • Roger could have taken the safe route
  • I (the lawyer) told him the easy thing was to shut up
  • He is big bad Roger and wants to fight for his reputation

Gosh. That might be what an innocent person would do. Or even what a “You can’t prove I’m guilty” person would do.

Might be part of an overall PR strategy.

So why are Scott and Stephen so sure that Hardin is sneaking behind his client’s back without his explicit permission to broadcast this story? Is Harden so dumb he doesn’t think this interview might get back to Roger?

Troopers Encouraged to Follow Hunches

Texas Governor Rick Perry, giving advice last Friday to one of the largest graduating classes of new DPS troopers ever:

You might pay heed to a hunch and check a truck more closely the way one of your fellow troopers recently did…and stopped $3 million worth of cocaine from reaching our communities.

Don’t forget to make a pretext stop first though… that ‘hunch’ may not hold up for reasonable suspicion to detain.

You're Not a Cop, Are You?

Midnight and I’m not asleep yet. Go out to the living room, flip through some channels. A movie on HBO called 8MM is on.

Joaquin Phoenix to Nicholas Cage:

“You’re not a cop, are you? If I ask you and you are, you gotta tell me…”

“I’m not a cop.”

Of course this is nonsense.

Here’s what I don’t get though, even from the Hollywood writer’s perspective. Why does the guy asking “Are you a cop?” always follow it up by telling the potential undercover officer what his duty is? To fess up?

That doesn’t make any sense to me.

If he’s a cop, surely he’ll know the rule, wouldn’t he? Only the non-police officer wouldn’t know the rule, but he’ll say “No” anyway.

Update: Saw a bit more of the movie. The 2 main characters are being granted entry into a room full of possibly illegal activity. There’s a guard at the door. He asks everyone who enters

Are you currently in or have you ever been affiliated with law enforcement? (‘No’)

Yeah. That should be enough to grant that motion to suppress, right?

'Failure to Testify': A Better Instruction

Mark and Anne are blogging about Texas’ jury instruction regarding a defendant’s ‘taking the fifth’. Scott has weighed in as well – the New York instruction is about 5% better than ours, leaving it still severely flawed.

I decided to rewrite it myself:

While a defendant may choose to testify if they so wish, when the State fails to prove any element of the offense beyond a reasonable doubt, it becomes completely unnecessary for a defendant to testify. The State’s case is not any stronger just because the defendant has chosen not to testify in this particular case.

How do you like them apples? I don’t think it will ever happen. Not that instruction, but I think it’s fair.

Anyone else want to take a shot at writing one that might pass muster?

Related Posts:

The Right To Not Testify Against Yourself (aka the 5th Amendment)

The Right Not To Testify Against Yourself (aka the 5th Amendment)

…supposedly can’t be held against you, right? It wouldn’t really be a ‘right’ if jurors were allowed to hold it against you. 

Houston criminal defense lawyer Mark Bennett points out though that the instruction read to the jury in the charge in Texas is:

You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and during your deliberations you must not allude to, comment on, or discuss the failure of the defendant to testify in this cause, nor will you refer to or discuss any matter not before you in evidence. [From McClung’s Pattern Jury Charges, emphasis added.]

He then asks:

How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant's election not to testify -- the exercise of one of the rights that we, as defenders, hold sacred -- as a "failure"?

You know the part in the TV show when the [defendant/defense lawyer/sometimes the prosecutor] cringes as some sort of terrible unknown piece of evidence comes out. It’s a silly made-for-TV moment that (almost) never happens.

But I bet I’m not the only criminal defense attorney that has to use some self control to avoid that cringe when the judge reads that portion of the charge.

There’s got to be a better way to say that. I don’t know that we can effect actual change, but I’ll go work on it. In the meantime, let’s hear suggestions from other Texas criminal defense lawyers out there. ShawnRobertStephenHunterDavidDougEdSteve?

How do they handle it in other states? What’s the jury instruction regarding exercising your right not to testify in New YorkMarylandPennsylvaniaAlabamaMissouriFloridaNevada? Any of you out of staters have better jury instructions for this?

Interrogations and (False) Confessions

[Hat Tip: Dave Shapiro, who posted this article on the Austin Criminal Defense Lawyer’s Association listserv.]

UTEP hosted a conference called “Interrogations & Confessions: A Conference Exploring Current Research, Practice, and Policy,” last week. The Rio Grande Guardian wrote an article** about it.

The recent spate of DNA exonerations, usually in death penalty cases, has understandably increased interest in the previously widely disbelieved phenomenon of false confessions. The Innocence Project reports that fully one quarter of wrongful convictions involve false confessions:

False confessions and incriminating statements lead to wrongful convictions in 25 percent of cases. More than 350 jurisdictions now record interrogations.

False confessions are another leading cause of wrongful convictions. Twenty-five percent of cases involve a false confession or incriminating statement made by the defendant.

Of those cases, 35 percent were 18 or under and/or developmentally disabled. The Innocence Project encourages police departments to electronically record all custodial interrogations in their entirety in order to prevent coercion and to provide an accurate record of the proceedings.

More than 350 jurisdictions have voluntarily adopted policies to record interrogations. State supreme courts have taken action in Alaska, Massachusetts, Minnesota, New Hampshire, New Jersey, and Wisconsin. Illinois, Maine, New Mexico, and the District of Columbia require the taping of interrogations in homicide cases.

From the Rio Grande Guardian article:

Professor Ray Bull, from the University of Leicester, spoke on what really happens in police interviews with suspects. He helped to develop reforms in the United Kingdom. That country responded to problems within the criminal justice system and changed the way interrogations were conducted. Tape recording of all interviews with suspects is now mandatory.

“It’s a win-win situation,” said Meissner, who reported that in areas where interrogations are tape recorded, everyone is happy. Judges, prosecutors, defense attorneys and police who are often accused of using force, all can rely on the tape instead of someone’s word. There are fewer expert fees and court costs involved when interrogations are taped, he added.

So, the UK has it right. At least when it comes to capital cases in the United States, we need to go to an absolute rule: Eligibility for the Death Penalty Requires a Videotaped Confession.

We would need rules and jury instructions as well regarding the circumstances surrounding any ‘confessions’.

I assume this would satisfy folks like Jeffrey Deustch, who has been polite enough to engage me and other readers of the blog in a death penalty debate recently.

People who are less concerned with the ‘accuracy rate’ when it comes to the ultimate punishment will remain unconvincible.  But in the meantime, anyone else want to add Texas to that Innocence Project list?

[** Given the url, which ends with “/features_story.asp?story_no=1” I fear this link may go dead. If so, maybe you can use the search feature in the future to look for the story.]

Execution is Proof of Guilt in Texas

Radley Balko on why Texas might try to prevent anti-death penalty groups, as well as the rest of the world, from finding out whether Texas executed an innocent man:

Now, I can think of some reasons why a prosecutor would want to destroy a piece of physical evidence that could prove that the state executed an innocent man. But none of them are compatible a human being.

Perhaps, for example, the prosecutor was one of the prosecutors who worked on the case, and doesn't want the stain on his career that might come with a wrongful execution. Perhaps he wants to avoid the inevitable stain on Texas' already execution-happy reputation that would come with proof that the state executed an innocent man. Perhaps he knows that proof of a wrongful execution will make it much more difficult for him to win death penalty cases in the future.

But here's the thing: While I can perhaps see a prosecutor harboring such sentiment deep down inside, I can't possibly conceive of anyone actually making these sorts of arguments publicly. Or with a straight face.

Claude Jones was executed in 2000 for the robbery/murder of a liquor store owner. During trial, the State’s expert proclaimed that a hair found at the scene ‘matched’ that of the defendant. The Texas Court of Criminal Appeals cited the ‘matching hair’ as the corroboration necessary to affirm Jones’ death sentence.

Blogs have recently been covering the story of Texas’ attempt to block finding out whether this ‘crucial’ hair evidence would have actually exonerated Jones. See: StandDown Texas Project, the Innocence Project, Jeralyn Merritt, the Texas Moratorium Project, Capital Defense Weekly, DeathWatch, Grits for Breakfast, PWC Consulting, and finally, a tie for my two favorite blog post titles about this story, from Amnesty International USA “Hair Today, Not Gone Tomorrow” and from Yank in London ‘We’ll expect a retraction and an apology”.

Speaking of retractions/apologies, let’s get to the title of this post “Execution is Proof of Guilt”. There are definitely folks that need Jones to not be found innocent after the fact: death penalty supporters. Because he has already been executed, he is and will remain guilty.

I make this prediction. There will be 1 of 2 possible reactions to the results of the DNA test.

#1) The DNA test proves that indeed it was Jones’ hair at the scene of the crime. The reaction will be, basically “Ha Ha Ha,” and “See, we told you that the anti-death penalty crowd is just a bunch of murder lovers”.

#2) The DNA test proves that it was not Jones hair at the scene. The reaction from the pro-death penalty folks? Will it be, good grief an innocent man was executed? No. We will see all sorts of rationalizations that “just because the hair follicle wasn’t his, doesn’t mean he didn’t do it,” and “they didn’t prove his innocence”.

I’ll follow up on this when the results are in. In the meantime, anyone want to predict other possible reactions from the pro-Death crowd?

Mark Fuhrman on Why Snitch Testimony is Inherently Unreliable

Several months ago the blogosphere was alive with posts about Cam’ron, Anderson Cooper, 60 Minutes and the ‘Stop Snitching’ movement. [See Grits for a good post on the subject, and a list of other bloggers who chimed in as well.]

Today, I came across something I meant to blog on the subject, but never got around to. I had been channel surfing, and stopped on Mark Fuhrman commenting on FoxNews about the story. I’ll leave it to others to speculate why Fox pays Fuhrman for commentary; for now, let’s just assume it’s because he’s the universally acknowledged poster child for Truth, Justice and the American Way.

Anyrate, I was shocked to hear what former police officer Fuhrman had to say on the subject, so I rewound (thanks to an ever-recording DVR) and jotted down his words.

Mind you, this quote is not in the context of a police officer, or prosecutor, or other State official who feels the need to justify a particular conviction that was based on snitch testimony. He’s just honestly talking about the phenomenon of snitching:

Just remember this: people that offer info to the police, they’re not waiving us down on the street saying, “Come on, I want to help you.”

What’s happening here people are working off their own problems, their own beefs, their own case which might be a property crime, it might be some kind of probation violation, and they want that to go away. They’ll give you info on a murder, a robbery or a rape.

They’re dealing stuff out so I think everybody’s got a little confused here. As soon as they’re on the hot seat they’re willing to do the deal, in jail or out of jail.

I actually no longer remember the exact context in which this remarkably accurate description of snitch testimony was delivered. The point is that Fuhrman was simply talking about the realities of snitch testimony and didn’t feel the need in this situation to brag about how reliable his particular informant on a particular criminal case was.

But in a different context, it sure sounds like what a criminal defense lawyer might say during closing argument, doesn’t it?

Bob Costas on the 'Presumption of Innocence' and Barry Bonds

Criminal defense lawyers beware: if Bob Costas pops up in your jury panel, you’ll need to find some way to strike him.

Last night Barry Bonds hit home run number 756, breaking Hank Aaron’s all time record. This morning Bob Costas appeared on the Today show, commenting on the mental asterisk that many baseball fans (at least outside of San Francisco) attach to the achievement, due to the overwhelming amount of press coverage over the past few years about the ‘Steroid Era’ in baseball.

Matt Lauer: …you have bristled at the idea that [Bonds] is innocent until proven guilty.

Bob Costas: Well, this ‘innocent until proven guilty’ is an insufferable platitude that is masquerading as high mindedness as if those of us who don’t somehow withhold all judgment need a remedial course in civics…

Costas then points out that the debate about Barry Bonds’ home record is not playing out in a criminal jury trial setting, and that different standards apply to real life. 

This is a legitimate distinction. Two guys at the local bar discussing Babe Ruth vs. Roger Maris need not limit themselves to rules of evidence and criminal procedure to make their points. Life and liberty are not at stake in the debate.

Still, Costas’ description of the vital legal concept shows such disdain for the notion it makes me cringe. I’ve written before about the real life concept known as the presumption of guilt.  I may track what the blogosphere’s reaction is to the record over the next few days, and report back on what I find.

Jurors Asking Questions...Leads to a Not Guilty

Michael Hawkins, contributor to/author of Spontaneous Arising tells the story of his jury service in a Federal Drug case. It’s clear from the title of his post (Pure Democracy and the Moral Bankruptcy of the War On Drugs) that the federal prosecutors missed a golden opportunity to use a preemptory strike on him, but this case doesn’t turn on the juror’s individual views about decriminalization, or any other political views.

Instead, it turns out that the Government has a really weak case against the defendant. 

Sure, they trot out the usual suspects: mostly co-defendants who had plead already, discussing the various intricacies of their multiple prior inconsistent statements, and of course, the officers and investigators from the Task Force, who, according to our fearless juror, placed the defendant’s vehicle but not the defendant at the scene of some important meeting during the conspiracy.

For me, here’s where it gets really interesting.

The judge allowed the jurors to submit questions to the lawyers, and then more directly after that. The juror submitted these questions:

Officer McNiven and Sgt. Goldberger have gone into great detail around the surveillance of December 8, 2004. Was the defendant at any time positively identified as either a passenger or the driver of the blue Honda Passport?

If not, how did the authorities determine that the defendant was present on that day?

The response:

Goldberger, the lead investigator, was still on the stand, and to his credit, he tried his best to keep up the charade.

He spent two full minutes explaining how it was dark, how his men did not want to blow their cover by going into the liquor store, how the investigation was just getting started... then he wanted to read the question for himself. The judge handed it to him, and he held it for probably 30 seconds before answering the second half.

"Well," he said, "we never got a positive ID on the defendant, but we did see three men get out of the car at the trailer park -- two Hispanic, one white. The Hispanic men matched the height and build of the defendant."

At that very moment, just into day three, you could see the wind go out of the prosecution's sails. The entire jury had moved up to the edge of its chairs in anticipation of Goldberger's answer, and I watched the jury slide back into its chairs, shaking its heads and clicking its pens.

I can't be sure, but from what several of the jurors told me later, that's the precise moment when everyone made up their mind: not guilty, not guilty, not guilty, not guilty, not guilty (five charges: 1) possession of cocaine; 2) possession of methamphetamine; 3) distribution of cocaine; 4) distribution of methamphetamine; 5) conspiracy to distribute both cocaine and methamphetamine).

Obviously, I think it’s laudable that the jury reached the correct decision in this case. And Michael justifies the title of the post with some good comments about the War on Drugs in general at the end of his post.

But…there are things about this that drive me batty, namely: the jurors posing questions that get asked of the witnesses.

My feeling is that the jury should have reached the Not guilty verdict without asking the question in the first place. The fact that the question had not been adequately addressed by the State, either in direct or cross examination of witnesses means that there was already no evidence tying the presence of the defendant to the vehicle, and to whatever was going on.

That, in and of itself, means that the State has failed to prove their case.

Now, in this particular case, it took a thoughtful juror asking the question, and the rest of the jury hearing the (non)answer of the witness, to make it perfectly clear that the Government’s case was so weak.

As a side note, I see this sort of thing more often coming from judges in pretrial litigation, or for instance, in an ALR license revocation hearing arising out of a criminal DWI charge.

Judges very often will ask the witness, usually a police officer, a question, and invariably it cuts right to the heart of whatever is missing in the State’s case (whether it’s the County Attorney, District Attorney, DPS, whoever is representing the State in the hearing).

If I stretch my brain, I could probably remember some hearings where the question asked by the judge, as opposed to ones asked by the litigants involved, helped the defense. But I’d conservatively estimate that 9 out of 10 times, the answer helps the State. The most common example would be in a pretrial motion to suppress, where the Defense has established that there was no prior warrant for an arrest, and the ‘reasonable suspicion to detain’ is fuzzy at best.  Suddenly the judge asks the police officer for more detail about the stop, and then it appears.

Again, I see this is a scenario where the State has failed to meet their burden, and if the prosecutor doesn’t fix it by themselves on direct or cross, the win should go to the defense.

Can any criminal defense lawyers out there think of realistic juror questions that could be asked that aren’t some variation of: I have a doubt about (fill-in-the-blank element of the offense)…could you clear that part up for me?

Or, can anyone reasonably argue against the proposition that in the jury experience described above that the jurors should have come to Not Guilty verdict based on the lack of evidence in the first place? 

[HatTip: Drug WarRant]

Mistakes, Cognitive Dissonance and Jurors

Stephanie West Allen writes a book review of Mistakes Were Made (but not by me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts by Carol Tavris and Elliot Aronson appropriately titled : Wrong? Me? No way! That's not how I see it

Tavris and Aronson have written a thorough coverage of the phenomenon of cognitive dissonance. That's the feeling in your brain when you find that you are holding two inconsistent thoughts or beliefs; it's like an itch that needs to be scratched.

Aronson in the interview says resolving the dissonance is a drive like thirst or hunger. The book describes the lengths we will go to in order to achieve consonance — lengths which can be mind-boggling, laughable, or dangerous.

For example, let's say that you consider yourself a bright and savvy person and you do something, well, a bit dumb. You now have yourself some dissonance. How do you scratch it? The chances of your modifying your self-concept are low. You must do something with this incident of bungling.

Ah, hah! You can revise your opinion of it! It was not so dumb after all. In fact, of decisions you have made, this may have been one of the wisest. Don't laugh. We all resolve dissonance and our methods may be just as slippery.

I think we can all see ourselves at times going through this same justification-of-a-blunder process. We’ve all done it in one form or another. It’s human nature. [Speaking of human nature, check out Stephanie’s new blog Brains on Purpose: Neuroscience and Conflict Resolution.]

Back to cognitive dissonance…what is it about her description of that phenomenon that makes me think of some juries?  Well, let’s start with this:

Criminal defense lawyers that never gotten a guilty verdict, when they believe they should have gotten a Not Guilty… aren’t trying enough cases.

Perhaps I’ll expound on that theorem (that I just made up) in a later post, but here’s the point for this one.

When you talk with a jury after a guilty verdict in a case where you feel strongly that it should have been that magical two word not guilty verdict instead, you often leave the jury room with a somewhat bitter feeling. You hear things like:

  • Something must have happened and it seemed like he was involved
  • We all felt like he was probably guilty (sometimes adding “of something”)
  • The police have a tough job, and we had to take his word for it

…among other things. And the criminal defense lawyer’s reaction is usually to think (to themselves) but measured beyond a reasonable doubt you are telling me the verdict should have been Not Guilty.

It sure seems at those times that while some jurors are even apologetic about their verdict, others use these same rationales to argue that they reached the correct decision.

Assuming most (some?) of my readers are in agreement that the statements listed above that jurors make do not justify a finding of guilt beyond a reasonable doubt, I’ll ask them this:

What common statements from jurors have you heard that you would put in the cognitive dissonance category?

Multiple Public Intoxication Charges and Expunction Questions

Question (from an email): I have a situation that I need your help with if you don't mind.

Here it is: I have three public intoxication charges in the past nine years. Got my first one at 21 and my last one at 29. I am 30 now.

The first one was in 1998, was arrested and put on deferred adjudication. Second one was in 2002, was arrested and put on deferred adjudication. Third one was November 2006, pretty recent. Was not arrested but put on deferred adjudication.

Of course I had fines to pay and my first one I had to attend AA meeting. I fulfilled all requirements without incident for all three. First on was in Austin, Texas....second in McKinney, Texas...third in Lake Dallas, Texas. I believe they are all class B misdemeanors correct?

I heard that when you get three then it changes to class A, is that so?

Anyway....In the last five years I have attended school and became a firefighter / Paramedic and am trying to get hired on to a Fire Department. Well, I was an idiot and got a freakin P.I. in November of 2006 and decided to stop drinking all together because it's no good and I am ruining my chances of getting hired on anywhere.

The Fire Department is pretty strict about criminal history, even with misdemeanors and time is the only thing on my side to get hired on. Well, since I not only have three PI charges racked up but one being too recent I can't get hired right now and it's hurting me.

I heard of something called motion of disclosure...will this help me and is this what I need to sort of fix the problem. 

The least I could do is the most recent one…if not all of them…or even the last two. I don't know.

What would you suggest be the best choice? I don't lie on applications and I really don't want to wait longer for time to pass separating me from the last charge. How much would it cost to do this? Please help me. Thanks.

Answer: One quick note, before I give a more substantive answer…

While I definitely don’t think that getting one Public Intoxication arrest makes someone an alcoholic (after all, it’s often more about your attitude than how much you’ve had to drink), I’m glad to hear that after 3 arrests and 1 ticket for PI, you’ve decided to stop drinking. 

Sounds like you either have incredibly bad luck, or quite possibly there’s an alcohol problem that needs addressing.

OK. So for the good news…Public Intoxication in Texas is a Class C misdemeanor, not a Class B, which makes quite a difference.

So, it’s ‘only’ the equivalent of a traffic ticket level offense, but, as you have found out, it can affect your employment possibilities…especially if you have a ‘history’ of PI arrests.

More good news? What you (and probably the Municipal Court prosecutors you dealt with) call ‘deferred adjudication’ for a Class C PI charge, was actually deferred disposition. That means the ‘probation’ you were on was non-reporting, the same way that you don’t check in monthly with a probation officer when you agree to take defensive driving to get your traffic ticket dismissed.

More good news? In Texas, a successfully completed deferred disposition entitles you to an expunction. Expunctions completely erase a record, whereas the Motion for Non-Disclosure that you talked about ‘mostly’ clears your record. So an expunction is better.

A quick digression based on your email before I get to the ‘bad news’…

A Public Intoxication arrest (or ticket) can be enhanced from a Class C, to a Class B misdemeanor, when you have 2 prior convictions. Again, if you successfully completed the deferred disposition, you have no prior convictions, so you aren’t in that category. But that’s what you ‘heard’ about enhancements for Texas Public Intoxication charges, and that part is true.

OK. You knew it was coming. The bad news…for you, anyway… (isn’t the cost of hiring the lawyer always the bad news?)

You can only expunge multiple arrests in Texas in one proceeding if they all happened in the same county. The petition to expunge must be filed in the county that you were arrested. 

Frankly, the majority of the costs involved in any expungement proceeding is preparing the paperwork. Personally, when I apply to erase my client’s criminal history in Austin, I charge an additional fraction of the initial cost to add multiple arrests to the petition. In other words, it doesn’t cost much more to expunge 2 arrests if they happen in the same county.

You were arrested in at least 3 different counties, so you will probably need to hire lawyers in all 3 jurisdictions to get the expunctions. Even if you hired the same lawyer for all three, it’s not just a matter of adding another few paragraphs to the expunction form to include the other cause numbers, etc. There will be separate filing fees for each County Clerk, and separate appearances for the attorney, etc.

I’ve got to end with some good news though. Sounds like your life is taking a turn in the right direction, and while it will cost some money to clear up your criminal history, you are eligible to do so, and in the long run…trust me, that’s what counts.

The 'Duke Effect' is Over

This will come as no big surprise to criminal defense attorneys, but the so called ‘Duke Effect’ is over.

Want proof?

Type the phrase “Michael Vick should be suspended” into Google Blog Search, and right now you’ll get 533 results. Mind you, this is about 24 hours after indictment… depending on how long after that you click the link, it could easily be more.

Polygraph Examiner

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 so we can discuss.

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

John Swartz

Trained' Police Officer No Better Than 'Regular Guy' at Eyewitness ID

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.

A Prosecutor's Take on Mike Nifong

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.

Comparing the Practice of Criminal Law Between States

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…

Dismissed Criminal Case Still On My Record

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.”

How the "Statute of Limitations" Works

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 23rd 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 35th 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.

Criminal Possession Requires Intent or Acquittal

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.]

How the Innocent End Up in Prison

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.

It's not the "Statue of Limitations" (It's StatuTe)

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”.

No Intent to Commit a Crime? Arrest the Victim

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.”


“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.

What Does 'Reasonable Doubt' Mean?

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”.

The Presumption of Guilt is Difficult to Overcome

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.

Statutes of Limitations...And Why We Need Them

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?

Texas Jury Instructions and Plain English

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).

Changing the Law of Jury Selection to Favor the Prosecution

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.

The Duke Wrongful Prosecution Case and the Importance of Criminal Discovery

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.

Whorton v. Bockting: Wrongly Decided

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.

Mistaken Eyewitness Testimony & Certainty of the Witness

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]

Rita and Claiborne to be argued tomorrow at the Supreme Court

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…

Prosecutorial Ethics - Plea Negotiations and Brady Material

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)

Why Cunningham v. California is important (and correctly decided)

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?

Cunningham v. California: the media misses the point

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.

Former prosecutor debunks connection between behavior and veracity

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…

Texas Double Jeopardy standard lowered to favor the prosecution

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?

Reciprocal Discovery in Texas Criminal Cases

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.

Can You Expunge Multiple Arrests at the Same Time in Texas?

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. 

Defendants Forced To Jury Trial

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.

Should the Defendant Testify?

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.



Eyewitness Testimony / Mistaken Identity


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

Austin Police Department Seizes Cocaine, Cash and Cars

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.)

Prior Criminal History: What Should Jurors Be Told?

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.]

The Admissibility of "Consciousness of Guilt"

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)