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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Hat Tip: How Appealing)

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