Evidence and Criminal Procedure

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):






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,"

Continue Reading How To Write An Anders Brief

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.

Continue Reading What The Miranda Rule Says…(According To TV Version)

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.

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

From PoliceOne.com, 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.

Continue Reading Police Testimony 101

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.


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?

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.