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Ce RS Ra ATLL Ieee Te LN ee Course Director :: Jani Masell, David Ryan and David Schulman DN aN ee a ey March 4, 2016 :: 6.5 CLE:: Includes 1.5 Ethics Cote eC Cee a ay Pee Ea Ua ea eee eee ee Birraporetti's, 500 Louisiana Street, Houston, Texas 77002 Geer ee ea Oe On eee Cee ESS ace a eee aay rae een aR Rd DeLee sy March 23 :: Troy McKinney :: Includes 0.25 Ethics Pauaig vee ce ONO eres 90 (2/1) VISIT US @ Poe Nea) Eee RCO ae FOR THE LATEST NEWS & MORE 10: 12: 16: 22: 27: 30: 34: 35: = CLE Events ::A Word from our President ‘by JoAnne Musick 2: Winning Warriors : HOCLA News Round Up 3: Welcome New Members 3 Constitution Day Holiday Party Photos by Russell Webb HCCLA Ethics Silence is Golden...Sometimes ‘by Robert Pelton The Lifeguard ‘by Rick Oliver Practice Pointers ‘A Ring Column of Help its 22: My Client Says He is Innocent, But He Wants to Take a Deal to Get Out of Jail. What Do | Do? by JoAnne Musick 23: Effective Plea Bargaining by Jason Luong 24: EFFiling in Criminal Courts by Damon Parrish I The Right Tool for the Joh by Joseph W. Varela Getting Appointed Experts and Funding by Scott Pawgan Chess Corner 7 Ways to Win (in Chess & Trial) by Tyler Flood HCCLA Extras Ethics Hotline ‘Ad Rates New Member Application The new mantra, “rethinking criminal justice,” realy isn’t all that new. Defense lawyers have known for years chat ‘certain sanctions and programs don’t work. Defense lawyers hhave advocated for personal bonds for yeuts, For two decades, HICCLA has spoken out about the abuses in the plea mill and the over-criminalization of our citizens. HCCLA has demanded-justice and change. Now, we hear the Harris, County Criminal Justice Coordinating Council pushing for change and rethinking the approaches to bond, treatment, and risk-based assessments. Ler’s hope their rally for change takes hold, We currencly see our elected ymney making more diversions available. But, what about these risk-based assessments and treatments? We have had a pre-trial services department for yeats analyzing tisk and making recommendations regarding personal bonds, yet our judiciary has routinely expressed a discrust of the assessment and been unwilling to follow ic. Now, wich newer, updated assessments will they begin to trust? Our probation department has used various assessment tools over the years, yet we know chose were flawed. In shore, ‘our system of justice isa mess. diseeice ace In February, we realized there are varying policies and practices among the related (0 assessments. Surprisingly, some courts allow defense counsel to view the assessment; some allow defense counsel a copy of the assessment; all allow the prosecucor a copy of the assessment. ‘As soon as I was apprised of chis practice, I immediately contacted the judges, probation, and the district atcorney. Everyone apparently agrees (1) the assessment report, once complete, belongs to the court and not the probation department so probation has no input on whether or how it fs disclosed (however, Dr. May, ditector of probation, highly recommends all counsel receive a copy of the assessment for review at least 3 days prior to court) and (2) the courts were unaware of this practice generally. Ac this writing, we are working on a standardized solution that allows all counsel aceess to the report. Sometimes it is che little things, like getting access 10 reports and information. Somerimes ic isthe big things, like PR bonds and rethinking practices. Rest assured, big or small, your HCCLA board is on top ofall of these and will continue to push for what is just and right 2 our uur president ICYMI: HICCLA has been busy! On September 17, HCCLA held our fest annual Constitution Day celebration by reading the Constitutional Amendments on the courthouse steps and handing out pocket-sized commemorative Constitutions. Thanks co Grant Scheiner, Jen Gaut, Gemayel Haynes, and, Phil Gommels for organizing and leading this event. In October, HCCLA, with assistance from TCDLA, held a two-day Winning Women conference which received rave reviews as both educational and inspiring, even for the guys! Thanks co David Ryan and Jani Wood for organizing and directing this course. In November, HCCLA again held its annual Donald Davis: Dealing wich the inspiring, and profound event. Ie is offered free each year and provides valuable CLE and assistance, From suicide, alcoholism, and disaster to planning, protecting, and helping four speakers. shared their personal experiences, business practices, nights and prayers for our colleagues Thanks to Mark Bennett and David Ryan for organizing another wonderful event. As ractice CLE event. This isa truly amazing, aside, we have learned that an attendee, contemplating suicide, immediately called for help and realized we all face chese issues and no one is alone or immune from tragedy. That's one hell of a success for a CLE! In December, Mak Thiessen again pulled off the party of the ceneury for HCCLA’s Holiday Parry. In a packed house, our ‘members and guests shated an evening of fun and comsadery. ‘Thanks Mark, Coming up we have a Search and Seizure seminar as well as the First Annual Judge Wendell Odom Appellate seminar. ‘The one-day search and seizure event will provide legal and practical approaches to litigating these issues pre-trial and during trial. The two-day appellate evene will feature handling appeals from scart ro finish as well as 2 crial preservation track (0 set up better appeals. Also, in the works isa technology course! ‘We have a lot going on with so much more on the horizon! {I'm excited to watch our organization grow into a powerhouse shaping the system and having a litle fun. Just check out the Winning Warriors to see the great work being done by our members. I grew up being told chat Houston had the best dlefense lawyers in che country. Man, were they right! We ended the year with a bang. The FCLD team decided to play games with opening statements in CCCL 5. No matter, Thuy Le and Erie Benavides still got the Not Guilty. This dynamic duo was set to do battle again with the same FCLD team in another case, but took the offer of anger management, and dismissal. Lear the lesson — good things can happen, g0 to trial when cas CCCL 10 would not allow CW's history of false reports, or pregnant CW's new man had whipped the 3 year old sprog of CW and baby daddy, but let in a picture of CW's, belly and chipped tooth. Irene Wilson still got a NG in, 10 minutes, changing the defensive theory on the fly that cident. it was just an ‘Mike Threadgill welcomed the new ADA in Fort Bend, CCL 3 with a big Not Guilty in a DWI 2"4 with DRE. Katie Jo Muncie and Mark Diaz heard the 2 word verdict on PCS in Galveston 122. Jed Silverman had a day to remember, as he continues to wreak havoc on unsuspecting ADAS. In one day; Jed got 3 not guilty verdicts and a mistrial. DV for unlawful restraint and NGs on assault and Interference with 911 in CCCL 15. ‘The mistrial was a .15 DWI in CCL 5, with the jury 5-1 to acquit ‘Sometimes you've got to ask the hard questions and insist, on the answers. Pat McCann was appointed after client revoked in Wharton and sent to TDCJ. Pat learned his, client had been abused as a child and witnessed his brother murder his father. New trial granted, probation reinstated, Paddy Mack was not finished. Thanks to the work of trial lawyers Dan Cogdell and Cordt Akers, Paddy won a new trial in 179 on a media road rage case. Steve Shellist and Peyton Peebles scored a huge NG in 184 on murder. The jury believed it was self-defense, even though the deceased half-brother was not armed. Victoria Erfesoglou has been rolling through Fort Bend. First, Vie scored a dismissal of a criminal trespass in CCL 4 by actually conducting an investigation showing the police report left out important facts. Then, Vie scored back to back orders of compliance in CCL 1 and CCL 3 for subpoenas FBCDAO sought to quash. When will they leam to stop interfering with defense investigations? DPS maintained 3 pleas for indecency by contact meant lifetime registration as a sex offender. Mandy Miller actually read the law, and insisted the plain language of the statute required 10 years. DPS caved after Mandy filed a writ, Learn the lesson — read the code! Paul Morgan won his first DWI trial, with a .20, Paul thanks Matt DeLuea for sitting 2 chair and Abigail Anastasio for her assistance. There was some funny bbusiness with the blood results. Lear the lesson ~ do DWI right, or do not do itat all. The DWI gurus will give you advice if asked, and nothing beats the training at DWICLE. ‘The ADAs in 232 thought they had a whale in an assault-fv 24 until Craig Still and Amalia Beckner harpooned their case and got the NG. ‘Alan Macias and Mackenzie “Mack” Schaffer scored NG on assault-fv in CCCL 9. CW had been hit in the face with a pipe by a child having a temper tantrum, but told the jury D threw her across the room 7 times. Alan poked ‘enough holes in that story to convince the jury otherwise, A .13 blood draw and a bunch of surprise documents, admitted over objection didn’t stop Troy McKinney from hearing NG in CCL 1. Troy recommends a more expansive subpoena to IFS so all documents get produced before trial Susan Criss scored a dismissal of Endangering a Child in 185. This was a media case involving a child wandering on Spencer Highway alone late at night. Mom did not know the child had left and convinced the State to do the right thing, meas CONTINUED CAinning CAarriors Undereover cops, a sting involving multiple transactions, and D on parole were no match for Feroz Merchant, who heard the 2 sweetest words in 248. ‘You would think HCDAO would stop trying cases against ‘Tyler Flood. Tyler scored NGs on a DWI 2! 20 blood in CCL 15, .13 blood in CCCL 7 on DWI 18, 19 blood DWI 2" in CCCL 11 where the client was clocked at 103 ‘mph, in trial dismissal of a .19 breath on DWI 1in CCL, 6, and a hung jury and dismissal of a.12 breath DWI 1°. Who says DWI gurus cannot try other cases? Mark ‘Thiessen won an Interference with 911 by DV in CCCL 2, and the jury let the State know they had wasted their time. Then, Mark went to Montgomery CCL 4 and won, ‘an Unlawful Restraint for a Desert Storm vet Norm Silverman and Daphne Silverman have been on aroll. They hung the jury 5-5 for their client charged with SAC, despite inculpatory DNA testing. They got a Not Guilty in Gillespie County after MTS granted in trial. If that’s not enough, Normie prevailed at CCA on 38.23 being broader than 4th Amendment and that independent Courtney Stamper got NG on a .13 DWI in Ellis County. ‘Courtney and his blood expert poked so many holes in the testing the jury found the testing unreliable. ‘Wendell Odom credits trial lawyer Pat MeCann with preserving error at trial to score an abatement in a capital appeal assigned to COA1, Paddy kept asserting ‘competency throughout the trial in 178, and COA agreed with Wendell that the appeal could not go forward without a competency exam. Mark Thiessen had an impressive Fall. The State had, problems with the .20 blood test on a DWI in CCCL 10, so they dismissed it,., only to refile it as a 15, It did not ‘matter when the jury came back with a Not Guilty. Mark then heard NG on 10 blood DWI for a Cuban immigrant in CCCL 4. @® wesc FPW for a true habitual was no deterrent to Michael Edwards, who heard NG after eviscerating the cops on cross in 179, Michael thanks Alex Bunin, Erie Davis, Kirby Taylor, Wade Smith, and the list serve for helping him reveal the truth Not all wins are NG. Skip Cornelius and Rudy Duarte saved D's life with a verdict of LWOP in a death capital in a media case, There were 3 dead and 2 survivors, Tyler Flood got bored trying cases in Harris County. Tyler won a MTS and dismissal on DWI 3% in Montgomery 9, and then heard Not Guilty in Fort Bend ccL3. Brittany Lacayo got an abatement for review from CCA in a murder and several counts of attempted capital murder out of Galveston 10, Cynthia Henley is dismissal machine. Cyn got a robbery dismissed in 174. The vegan victor followed it up with aan assault-fv dismissed in CCCL 1, even though CW was cooperating with the State. Who says ladies can’t do “big boy” work? JL Carpenter and Meghan Smith had a Fall to remember. 3 NGs on assault-fv and 4 felony dismissals would make any of us happy. The battling beauties then went on the road and scored a NG on Interfering with 911 in Galveston. ‘Ty Brock and Bill Stradley scored a 10 minute NG in CCCL 1 for their client on prostitution. The UC claimed to make an agreement on the street but D drove away and was arrested a block away. The jury refused to talk to the State after the verdict ‘The State dared Royce Franzoni and Erik Nelson to go to trial on an Interference with Child Custody in Galveston 36. The boys from The Woodlands took the State up on it, and got the dismissal 2 days later. They preceded this with a hung jury in 184 on DCS Mandy Jones has her career offto a great start by scoring, the 2 sweetest words in the courthouse on a Terroristic Threat in CCCL 14. Vik Vij scored a dismissal with the jury in the hallway on PCS in 230. Cory Roth Wade Smith and Troy McKinney scored a DV on a pot, case in Fort Bend CCL 4. Jury sworn, MTS granted after Wade impeached the trooper with his own dash cam, The State had nothing else to offer. at it again, NG in CCCL 6 on UCW. Props to the statute slayer, Mark Bennett, who convinced, COALL to kill another statute (sec. 21.12(a)(3)) on 15 Amendment grounds, Unfortunately, the legislature is not in session to pass more laws in contravention of the US Constitution, Tad Nelson and Amber Spurlock used a flu defense to hear the two word verdict in Galveston CCL 2, Mandy Miller, you came and you gave... while taking, home a dismissal after opening statements on a.30 DWI where D ran into the trooper's patrol car! Seems trooper fudged a lot of his facts in his report not supported by the dash cam or other evidence, Oh Mandy! Randy Ayers got a reversed and rendered in COA14 on, a residue case. Randy credits Gemayel Haynes and Jen Gaut for their fine trial work to preserve the sufficiency. issue for appeal. Apparently, state court no longer challenges Jed. Silverman, who got a dismissal of all charges in a Jacksonville, FL military court. Jed’s investigation proved CW wife and CW's lover, the commanding officer, conspired to trump up 5 counts of sexual misconduct, Sam Gardner is on a roll, scoring a win in CCCL 10 for resisting arrest. Sam then heard NG from the jury in, 230 on EMV. State offered to reduce to a misdemeanor pre-trial. The immigrant D can now stay in the US. Emily Detoto and Mike Driver scored a Not Guilty on 25-life sexual assault in 262 where the court denied, continuance after Emily experienced a sudden and shocking death ofa close friend, Marjorie Muniz biked her way to a Not Guilty in on assault-fv in CCCL 12. Windi Pastorini got a NG in 177 on AADW. Joaquin Jimenez got aNG in CCCL 6 on assault-fy, CW did not appear but the 911 tape came in, JJ says the jury was out less than 30 minutes, Gus Saper scored a dismissal in CCCL 10 on third tial setting of DWUFSGI. Gus thanks Brent Mayr for helping, find the flaws to secure dismissal Stan Schneider and Casie Gotro so frustrated the ADAs, in a media ASAC they goaded them into moving for a mistrial during closing argument in the 176, The trial court, granted the Double Jeopardy wit to deny the State a retrial. ‘Trinidad Zamora and Jed Silverman convinced the jury it was manslaughter, not murder. Client was about to take ‘plea to 30 years on murder when the verdict came in, The jury decided 12 years was appropriate. David Ryan worked out a pre-trial diversion on a home invasion with the jury in the hallway in Fort Bend 240. Danny Easterling heard NGRI on a murder. Danny thanks Wade Smith and Jason Sosa for helping in a most, satisfying win, ‘casio @) CONTINUED =: UGS Teena CGarriorg ‘A gun, 11 kilos of coke and the DEA did not stop Priscilla Bush and Chevo Pastrano from getting a not, Maverick Ray goosed CCCL 14 in COAI on DWI. The trial judge declined to allow Maverick to put on evidence to support his MTS and conducted an unauthorized post abatement evidentiary hearing. ‘The COA found both the post abatement hearing and denial of MTS unreasonable Great win... and great balls of fire! ‘Alejandro Macias scored a NG on harboring a runaway in CCL 3. The information failed to plead elements of an offense. Bad facts do not mean there is reasonable suspicion for the arrest. Steve Shellist and James Kan won a MTS in CCCL 13 with evidence and a well written brief Actual innocence does not seem to be a bar to filing charges. Brett Podolsky did a vigorous investigation that Jed to the arestof the real culprit, but only after forcing the State to go visit the eal culprit in the Galveston jail and an innocent man spent 6 months in jail. The State offered no apology. Leam the lesson — there's no substitute for proper pretrial investigation. Bre LN Owned & Operated Soe eet aes »Inclusion and/or exclusion zones eee ec ete ee Oe eure »No phone line required Bere are » Color picture verification Rete eae ese Caer cra ar scy SN On ie nett) CoE CTU eel RMU ra) OD cS Ct ae Ae Cee A Pecan cic SES Us a AC) WELCOME [eee : Leo NEW tm se tee Paar MEMBERS [RT eanoeprsersieial NEW PARALEGAL oie in eee ona T= 1-9 coe Eddrea McKnight pera er en aera) ‘September 17th is Constitution Day, and last year HCCLA began a new tradition of celebrating our United States Constitution with a public reading of the Preamble and Amendments. HCCLA also provided commemorative pocket constitutions for attendees and passersby. This event was modeled after our celebration and reading of the Declaration of Independence which occurs each 4th of July and was started by Past President Robert Fickman, Special thanks to member Grant Scheiner for th inspiration for this event and to Grant, Philip Gommels, Jennifer Gaut, and Gemayel Haynes for organizing this celebration. ‘acoso (@) HCCLA ETHICS silence is golden... HCCLA ETHICS ... Sometimes by robert pelton Keep your mouth shut. Don’t tell anyone else about it, It is part of an old proverb “Speech is Silver and Silence is Golden. Often the best choice is to say nothing.” ‘When your client is the subject of a criminal investigation, cthically you should warn them to keep their mouth shut and, remain silent Your client needs to communicate with you, so it is better not to be silent with you. It is much better if you are not, silent with your client, Silence may get you a grievance and a difficult client. All communications between the accused citizen and the lawyer are privileged communications. Many times the client will bring his wife, family members of friends when the lawyer and client are communicating. Always advise the client of the privilege. Warn the client of the potential danger of his best friend or wife or husband or any other person suddenly becoming his enemy. If the client insists, write a simple note for the client to sign. I, Client Name, waive the attorney/client privilege and permit my lawyer to communicate with my spouse, cousin, friend, etc My lawyer, Robert Pelton has advised me that there is a danger in doing this. Client Signature . Do not make promises ‘ou cannot keep If the client is totally unreasonable then the best option is to decline the case. Always tel your client not to discuss their case with anyone. If your client understands and signs this waiver, then you ccan discuss the status or answer questions, The client may rot be able to fully explain what is going on and family or friends may be able to help. The hotline has received several ealls from lawyers and or family members or friends, employees secking facts or the status of the case, Mothers worry about their children, When 1 crying mother, whose son has a lawyer, calls or comes to your oflice asking for your advice and wanting to know why the other lawyer won't talk to her, explain the attomey/elient privilege. We recommend you call the lawyer and advise the current lawyer of this event. The rules permit this, The lawyer may have good reason to hide information from that certain person. If there is no valid reason, then a simple explanation to the lawyer that he needs to get a waiver from, his client so the lawyer can tell the erying mother or father ‘what is happening on the case may help. A lawyer who is serious will not mind that. Clients in jail get lonely and seared because many of them do not have many people who really care about them. Try to see the client who is locked up and encourage people to, visit the client, Send a letter to just check in if you cannot, g0 t0 the jail You are bound by the Texas Code of Ethies. Talking, in hallways or elevators can be disastrous. It has been reported that in at least one courthouse in Texas recording devices have been discovered in hallways and elevators. A police officer out of uniform was in the hallway in a Houston courtroom listening to the defendant, talk with a friend about his case. Of course the officer told the prosecutor of the conversation and it was very unfavorable to the client. caso (@) HCCLA ETHICS CONTINUED silence is golden... ... Sometimes At minimum, when you have a trustworthy person worried, about their loved one get a waiver from the client to give information about what is going on with case and court settings, Many clients do not take their case seriously. They may think it is no big deal. Do not make promises you cannot keep, Ifthe client is totally unreasonable then the best option is to decline the case, ‘What will the outcome be? You cannot and should not talk: about the case results until you have all the facts covered, Investigate the case. Go to the scene of the alleged offense. Talk to all the witnesses. Even after getting discovery, you will generally find more witnesses that law enforcement id not talk to. Law Enforcement people want to close the case. In a recent capital murder case where our client was. 4 gang member, the deputy talked about all the tattoos and, ‘what they meant. He was very familiar with our client’s life but when asked about the shooters, he had no information, When he was asked why there was not an investigation on the two shooters - he said, “No prosecutor asked us to find ‘out about them.” You are ethically bound to investigate law and facts, Most times itis best to have an investigator talk to the witnesses, first. Tape record and ~-r-memorialize in writing ~ then you can talk to the witnesses. You will end up being a witness if the individual who was interviewed claims you lied or misled them. @ wesc by robert pelton SOMETIMES THE TRUTH HURTS. It hurts more if you have not done everything ethically to find facts that ‘may help your client, Reach out to a fellow lawyer if you need advice as a second opinion. Bobby Mims is now working very diligently and ethically to find facts that will help him in a capital murder case. Without doing what Lawyer Mims is doing, his client will suffer and his case will make bad law which others will hhave to deal with One of the hardest lessons to lear is when to keep your ‘mouth shut. Many of us had to learn the hard way. One of the few times I was in the office of Perey Foreman he g call from a client in jail. “Keep your GD mouth shut was his advice. He said many a person has been arrested and convicted by running their mouth. As soon as you get, hired or appointed, make it mandatory that your client not, discuss the case with anyone but you or a member of your staff, Shut down all social networking sites. If there are witnesses, and especially the complaining witness, try to ethically get access to any sites they have so yyou can sce what they have put in cyber space. Many times the information you find will help you win or mitigate your client's case. When your client is tne subject of a criminal investigation, ethically you should warn them to keep their mouth shut and remain silent. Harris County Criminal Lawyers Association Sector Picts etcee Cast SEMINARS SPONSORED BY CDLP ARE FUNDED BY THE COURT OF CRIMINAL APPEALS OF TEXAS BURNS INSURANCE SOLUTIONS family owned and operated Liz and John Burns look forward to offering your clients a new service years experience in the insurance business, providing clients with superior service and products. ORDERED TODAY INSURED TODAY PERSONAL SERVICE & FREE QUOTES COPIES OF SR22 CERTIFICATES SIMULTANEOUSLY SENT TO YOU & THE STATE OF TEXAS 713 - 224 - SR22 INFO@BURNSSR22.COM THE ‘Back in the day I was a lifeguard, if you can believe that.” ‘After a hesitant pause, she said, “Not as easy as it looks, is iv?” He shrugged to himself. His cyes drifted up and as they did the phone slid down his chin a bit, He could have heard her if she were talking. But she wasn't; she was waiting for him, He took a deep breath and gently probed the darkness. It was too complete to discem the shapes on the wall, but he wasnt scared. Itwas his office, after all; had been for the last twenty years. He could smell his smell in it. Everything he touched ‘was warm and familiar, He could move confidently in the darkness without offending a shin, This place symbolized his place in the world. Every stick and scrap was evidence of ora testament to the career he'd conjured virtually out of nothing, Stil, he knew, pride isn’t enough to light what's dark. His was the same sort of erap you see adoming the walls of nearly every defense attomey's office. Certificates of accomplishment, laurels earned and laurcls bought, tokens of appreciation, historical hubris, and the scalps of fallen enemies, He knew what they were, He knew they were there. He'd spent what felt like a lifetime among these baubles. He knew he would recognize them immediately, if only the lights were on, He sighed and mumbled, “I can only see it when 1 close my eyes.” Gently, she said, “What was that, John?” He shook his head like he was warding off a fly, readjusted the phone and said, “Nothing.” “Did you ever save anyone?” John’s eyes were drawn to the black comer where the inky dark loomed heavy and substantial. His filing cabinets were a mausoleum of old voices and the stories that had brought them here. Of course he had saved some of them. Some he saved from themselves. Others he plucked from circumstance and the conclusion it suggested, For those victimized at the altar of leverage he had found the fulerum and tured the tide, Too many had been spared the wrath of political guile masquerading as adversarial zeal, Of course, some of them were just as guilty as Hell. He saved some of them, too. But, he hadn't been able to save them all. There were just too many. “When you were a lifeguard, I mean.” John chuckled quietly and said, “Once. But mostly, I worked ‘on my tan. I remember by the end of that summer the sun had bleached the hair on my arms and legs white.” HISFILING CABINETS WERE AMAUSOLEUM OF OLD VOICES AND STORIES Instinetively, he reached for his forearm and could remember the soft blonde fuzz of that summer despite the coarse salt and pepper of this winter, “My Mother used to boast that the contrast of those tiny white hairs against golden skin made ‘me seem almost angelic.” cose CONTINUED THE LIFEGUARD ‘T'm sure it was just a trick of the light.” His laugh was almost a foreign sound, He said, “No doubt.” “Tell me about the one you saved.” He took a deep breath and leaned his chair back, anticipating the soft nasally squeal of rusty spring. He pressed his head into the rough leather and felt the cold knot of tension that always seemed to play at the base of his skull “You ever notice how so much of life is metaphor’ “have to be honest,” she said, “More often I find it to be allegorical.” John cleared his throat and said, “I suspect secular dogma is mostly to blame, for that.” “How do you figure,” she asked. "You want to talk about that or you want to talk about the pool?” ‘Good point,” she said, “Let’s talk about John the Life-Saver.” “That's probably a bit ambitious, but I'll tell you anyway. 1.“ ‘was in my stand, rigidly observing that 10/20 principle they drilled into your head back then.” “Ten seconds to scan your area; twenty seconds to get to and rescue anyone in it?” ‘Very good,” John said, “She was across the pool from me.” “Tell me about her, if you remember.” “She was Hispanic. She was there with a few other women and a gaggle of kids who all bore at least the slightest resemblance to her. At the time she seemed old, to me. Looking back, I assume she was in her mid-thirties; a baby. Her hair was twisted with one of those thick green rubber bands they use to package broccoli at the grocery store. It didn’t matter, though, She had the kind of hair whose vibrant simplicity makes other women jealous.” “The rubber band is kind of an obscure thing to remember, Why do you think you focused on that?” @ wesc Ihe e)a): “I was scanning my area when she eased into the pool. You could tell right away the water made her nervous. The kids all hollered and cajoled and the adults even clapped as she went in. The kind of thing that would piss you off, if they weren't her family, Some of the kids splastied her and you could tell she didn’t like that; not because of what the water could do, but because of what it was. I don’t think any of those kids could understand her fear. 1 know I didn’t, then, Anyway, she put ona brave face and started bouncing up and down a little. But, she was careful not to let her head go under. She was white-knuckling the conerete with one hand and waving the other around in circles under the surface—a pitiful attempt to float. That was the start of it. She would bounce a few times and then float into deeper water, all the time testing her footing. Bounce and float, bounce and float, Check for ground, Deeper and deeper. By then no one was paying attention to her anymore.” “Except for you,” she said, In the dark, John shook his head. He looked up at the ceiling and slowly exhaled a shuddering breath. “Not me either,” he said. “What happened?” Mn my next pass I got to the spot I'd last scen her but she ‘was gone, It took me a second or two to realize she'd gone under, Got too deep and lost her grip on the firmament, 1 suppose. I hadn’t realized how short she was until she went under. All T could see were two little hands reaching heavenward, either side of that beautiful brown hair.” “She didn’t panic when she went under?” “Maybe that’s why I didn’t keep as good an eye on her as I maybe should have, I figured if she got into trouble she'd start thrashing about and get everybody’s attention, Surely, 1 thought, her family would go in after her and she"d be out of the pool before T could get out of my stand, But, that’s not how it happened. I guess not everybody drowns the same way.” “Would it be easier if everyone did?” “I think you're asking a tougher question than you realize,” After a pause she asked, “Did she make it?” “I don’t remember blowing my whistle but I can still feel those three sharp blasts in my chest and in my bones, silencing the din like gunshots as I fell from the stand like a stone in to water. T hunched over my rescue tube and swam to her as fast as my arms would carry me, When I got there 1 jabbed an arm in the water and grabbed ahold of her just above the spot where that thick rubber band was binding her hair.” So,” she asked. 1 pulled her up and she coughed a gout of urine-laced pool water, but the important thing is she was coughing. Anyone with Kids will tell you that’s a good sign.” ‘So, you pulled her up by her hair and saved her?” tad" “Ouch.” My Father always told me to never confuse safety and comfort. I figure she learned that lesson the hard way, that day.” ‘When she didn’t respond John stood up with the phone. He stepped around the open desk drawer and walked to where he knew the sideboard was. He jiggled the stopper and set it next to the decanter, It rolled on its side and settled with a pleasant clink. He groped for a high ball and when he got it added three fingers of Scotch, It was reduced to a bony finger by the time he regained his seat Can I ask you something, John?” “Please, do.” “What was it that reminded you of your lifeguarding days?” John set the high ball atop his desk and leaned his chair back again. Slowly, he let his head roll forward and loll side to side, trying to work out a kink. He said, “Before you could get hired as a lifeguard you had to pass a couple tests; prove you were a strong enough swimmer for the job. The first was, easy enough. It was a timed five hundred meter swim. T hhadn’t yet leamed how to swim with my head under water, ‘but they gave us plenty of time to finish and I did it without too much trouble.” “What was the other?” John leaned forward and put his elbow on the desk. He exhaled a breath that came out in a dry fetid rush. He swallowed the last of his drink, He said, “There was a separate pool by the diving boards where the water was deepest; so deep you couldn't make out the bottom. They took us over there and we saw something odd. Cinder blocks were spaced out along the edge of the pool; one for every applicant, They didn’t mention the blocks and we didn’t ask. We got in the water and they told us all they wanted us to do was tread water, We started and did that for what seemed like forever. It wasn’t a problem for any one of us and I think that ‘made us alla bit cocky. I remember a joke or two coming at the expense of the strength of the application process.” “You forgot about the blocks.” “We did. Afler a while we thought surely they must be satisfied. They told us to swim to the side of the pool. We thought it was over and we'd passed their test nico CONTINUED THE LIFEGUARD It wasn’t and we hadn't. They told us to each grab a cinder block and wade back out to the center. Once we were out there a stop watch was produced. They told us to hold the cinder blocks above our heads and tread water until they told us to stop, If we dropped the block we were out.” “You passed the test.” John nodded and in his solace a single tear tracked his cheek and settled with a mournful tickle along the base of his jaw “Iwas a young man, then. The cinder block weighed fifteen, ‘maybe twenty pounds at the most. At the start, [held it up in ‘one hand and with a smirk on my face, Obviously, I was showing my ass. But, pretty soon it felt as though I was holding a goddamn elephant above my head and I wasn’t smirking anymore, My arms and legs and lungs were burning like fire, but I was determined not to let that cinder block beat me, I'wanted to impress the ones who were there who'd already passed the test, And I wanted to wipe the smug look of satisfaction off the face of the man holding that stupid stop watch, too. Pretty soon two of my fellow applicants dropped their blocks and kicked for the side where they clung to it, defeated, Stll, kept kicking and thrashing, In the beginning I was high and strong and able to keep my chin clear of the water. As time passed I could feel myself beginning to sink. It was such an ‘odd sensation feeling your strength flag in such tiny but ‘meaningful increments, “What do you mean?” @ wesc INA ela): “I was drowning; that’s what I mean, I was just doing it slowly and against my will, I realized it when [fell the water ‘on my checks. It tickled a little and forced me to blow air out my nose so I could breath. I had to kick hard every so often to get clear of the water so I could take a full breath, The water didn’t care. It was ready to accept me dead or alive; docile or thrashing. And then it was tickling my earlobes. I could barely force a kick hard enough to clear the water for air. Still, kept kicking and sinking. When it started to sting my eyes I cried out of frustration. I set my jaw and stared blurry lasers at the man counting the time. I believe I would have gone right down to the bottom holding that block over my head, if it had come to that.” “But it didn’t “Fortunately, no What do you think gave you the strength to endure?” “Tknew I could drop the block. “Whats so diferent now, John’ John lowered his head until it was touching the desktop, He whispered, “I can’t drop the block. Not anymore, No matter how heavy it gets or how far under I go. There's no rest and no break. No stop watch and no end.I can only see one way to get out from under it, anymore.” He started to ery; silent and wracking sobs. Blindly, he reached inside the open desk drawer and gripped his pistol, Like everything else in his office it felt comfortable and familiar. It felt easy and light, and with it the promise of a dream, With his eyes closed, he could see it perfectly “John?” He clamped his mouth shut to stifle a sob and didn’t trust himself to speak. He thought about ending the call. He ‘wondered whether it had been a mistake to begin with “John? Are you still with me?” John was able to manage a confirmatory squawk. “Get up and tum on the lights, John.” The hardened edge to her palliative tone caught him off guard, He looked up and wondered through tears how she knew he was sitting in darkness, “How did you know the lights were off?” “Turn them on, John, Confused, but obedient, John pushed himself back from his desk and went to the wall switch. Light bathed his office and he winced, As his eyes adjusted the frames on the walls retumed slowly to focus. ote “1'm here.” “The block is your life and it's heavy because it's ‘meaningful. You don’t have to drop it, John, You don’t have to drop the block and you don’t have to carry it alone. Are the lights on?” oe “Look around.” Tetchily, John said, “It's my office. I know what's here.” “I think you've forgotten, John. Look around. Look around and remember what all you've accomplished; who all you've helped, Take things down or pick them up and dust them off, examine the details. Re-experience them, John. Those things add weight to the block, too. And those are things you shouldn’L want to let go of. You're lonely; not alone. When you lose contact with the faces and the places and the love, of course it’s just you holding a cinder block overhead in a big dirty pool of hungry water. Once you realize that, the block will start to feel lighter and lighter. You may even feel strong enough to show your ass, a litte.” He hung on every word, trying not to fall vietim to what he so often accused others of: not listening. He wanted her help, ‘That's why he had called. He breathed deep and steadying breaths, He looked around his office, Somehow, it felt both familiar and new. He saw faces and could hear their voices. It wasn’t all laughter. There was pain, too. But it filled him up and forthe first time he began to feel grounded and whole. Emotion welled up and he wondered how he could have ever considered escape. He moved from picture to picture; bauble to bauble, He had no idea how much time had passed; another welcome fecling. He realized she was still on the other end, waiting for him to come back. For the first time in as long a time as he could remember, he smiled a smile of genuine appreciation, Not just for her voic but for the voices she helped awaken, “Thank you, Hope. “L'm glad you called, John.” John started to drop the phone but stopped. “Hope?” “Vm still here, John.” “That's not your real name, is it?” He smiled as she giggled from the other end. “Have a good night, Jon.” TEXAS LAWYER'S ASSISTANCE PROGRAM: IFYOU NEED HELP CALL ANY TIME DAY ORNIGHT (800) 343-8527 cose @) a running column of helpful hints So, your client who maintains his innocence wants to “take a deal” in order to get out of jail. Can you allow your client to enter a plea of guilty, even though he maintains his innocence? Let’s start with the ‘Texas Disciplinary Rules of Professional Conduct. Rule 1.01(b)(1): A lawyer shall not neglect a matter entrusted to him or frequently fail to cary out completely the obligations that the lawyer owes the client. Rule 1.02: A lawyer shall abide by a client's decisions in a eriminal case, after consulting with the lawyer, as to a plea to be entered, whether to waive a jury trial, and whether the client will testify Rule 1.02 Comment 2: A lawyer shall disclose offers to settle (proposed plea bargain offers in criminal cases). Rule 1.03: A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. A lawyer shall explain a matter to a client so that the client can make informed decisions about representation. First, you have an obligation and a duty to your client. Ifthe prosecutor has made an offer, you must relay that offer to your client. You must also explain the offer sufficiently for your client to determine whether or not to proceed to trial or accept a plea offer. It is imperative that you not only convey offers and discuss whether to proceed to trial but also consult with the client the consequences of each decision. The client must understand the trial process and its pros and cons along with the evidence that is likely to be admitted. Aan Oa rehmsre até He is Innocent But He Wants to Take a Deal to Get Out of Jail, What Do I Do? RO CUCR SCY Secondly, you must remember that it is the client ‘who decides what plea is to be entered. He may plead guilty or not guilty. That decision is his and his alone. You should advise him as to the consequences of his plea, but the decision to enter plea rests solely with the informed client. Outside the Rules, you must consider the plea itself Remember, the client maintains his innocence, yet hhe wishes fo enter a guilty plea and take advantage of a plea-bargain. While a judge does not have to accept any plea of guilty (thereby forcing a trial wherein the client could plead guilty to the jury), the Judge can accept a plea even where the defendant asserts innocence, ‘The Supreme Court held in North Carolina ¥. Alford, 400 U.S. 25 (1970) that there is no constitutional bar preventing a judge from accepting a plea where a defendant maintains his innocence while admitting that the prosecution hhas enough evidence to convince a jury beyond a reasonable doubt that he is guilty. Thus, his plea stands regardless of his stance that his is innocent, So to answer our original question, the answer is simply you can most likely allow your client to enter aplea of guilty (to a judge or jury) despite the fact he maintains his innocence. Once the client is fully informed, the decision of the plea to enter (guilty or ‘not guilty) rests solely with the client. Effective Plea Bargaining ete In the movie Searching for Bobby Fisher, Laurence Fishburne plays a streetwise veteran chess player named Vinnie who teaches a classically trained 13-year old chess prodigy how to play street chess. In a critical moment of mentorship, Vinnie sternly admonishes his young mentee: “Never play the [chess] board, Always play the man. You've gotta play the man playing the board.” Similarly, trial guru Gerry Spence wams us, “If you're trying ‘your case on the facts, you're going to lose every time.” I would expand this principle further. Being a good advocate for your client means more than just being a court room lawyer. It means learning how to effectively influence those people who will likely decide the result in the vast majority of your ceases—that is, the prosecutors, According to a 2011 report by the U.S. Department of Justice, approximately 90%-95% of all state and federal criminal cases resulted in a plea bargain, As trial lawyers, much of our focus is on how to be a better and more effective courtroom lawyers, which is a worthy goal. But the reality is that most of your cases will be decided on how effectively you can influence the prosecutor in the plea bargaining process. One of the most time tested books on human behavior and salesmanship is Dale Carnegie’s book How to Win Friends and Influence People. Written in 1936, this book is a primer on the basic art of how to influence people. I read this book once a year. Whenever I mentor young lawyers, whether as a prosecutor or now as a defense attorney, I always tell my mentee to read this book. The philosophy of this book is simple: Suecess requires the willing cooperation of other people and winning that cooperation means learning how to focus on the actual self-interest of the other person. One of my favorite quotations from his ook illustrates why we often get crosswise with prosecutors in the plea bargaining process: 6 Personally, lam very fond of strawberries and cream, but I have found that for some strange reason, fish prefer worms, So when I went fishing, I didn’t think about what I wanted. I thought about what they wanted. I didn’t bait the hook with strawberries and cream. Rather, I dangled a worm or grasshopper in front of the fish and said: “Wouldn’t you like to have that?” Why not use the same common sense when fishing for people? 9? If you're focusing only on the strengths and ‘weaknesses of your client's case but ignoring the real, every day, and mundane things that motivates prosecutor, then you are ignoring a whole area that is influencing the outcome of your client's case. For example, most felony #3°s, especially new ones, are overwhelmed, live in fear of screwing up and just want to feel like the work that they are doing in meaningful. When dealing with a #3, 1 often preface my dialogue by saying, “I need your help. I'm trying to move this case. Would you consider: ?” As simple as it sounds, by starting with “I need your help”, you dramatically change the tone of the dialogue and the result for your client. You have made the prosecutor feel as if they are in control. Sometimes, rather than saying, “Will you give my client 2 years. He's a really good guy and his wife is expecting a baby.” A more effective approach is to say, “Will you let my client do 2 years, so that I can look like a hero?” Again, this is a subtle shift in tone that can mean the difference between your client doing 4 years or doing the minimum. Whether it be a need (o feel empowered, the need to feel important or simply the need to feel good about the work they did on your case, structure your communications to subtlety focus on meeting the prosecutor's needs. You are not compromising your client's interests, and you are not giving away your defenses. You are getting the deal that your ‘client wants by selling it in a way that recognizes how people really make decisions, Good luck and good fishing. Inyejay yo uwinjoo 6 icone @) E-Filing in Criminal by Damon Parrish 1 In 2012, the Supreme Court mandated e-filing in civil maiters and they probably thought it would be great cost venture for local governments, an easier way to modemize filing systems and make public records easier to access. For the most part in Harris County, this has been the result of the e-file mandate. Attorneys have casier access to court files and records, and we have the ability, to e-file motions, pleadings and other documents via the comfort of our office. There are problems with the e-file system, such as inconsistencies on how pleadings should be filed, the complicated method of actually preparing your documents to be e-filed and the lag time between when you submit a pleading and when itis actually accepted. For the most the part these issues exist largely in the civil world and have little impact on ur criminal practice in Harris County. But times there are a changing we can reasonably expect e-filing to soon be mandatory in our criminal courts as well. So lets get started. First, you must select @ provider and luckily a website has been setup to help attomeys find e-filing providers, This website list all electronic filing service providers (EFSPs) for Texas, but do not confuse this with FreeFax which is only available for filings in Harris County and then only for specific types of filings, There are many EFSPs to choose from, some are free and others have a small charge to use their services. After sampling a few of the EFSPs I believe is the best option. It is a free service, relatively easy to understand and very easy to use, Once you have selected your EFSP, simply register with your attorney information and credit card, then you are ready to begin, Courts Now in Harris County we have the FreeFax E-Filing System which allows defense attorneys to e-file subpoenas and subpoenas duces tecum in criminal cases only; attorneys cannot use the FreeFax system to file any other pleadings nor can it be used for any other area of the law. If you are registered on the District Clerk's website,, then you are registered for the FreeFax e-file system as well. To access the FreeFax system, simply go to and navigate your way to FreeFax by clicking on the FreeFax link ‘Once you are in the FreeFax system you will see something like the image on the opposite page ‘The fields are self explanatory and after you input the jurisdiction; misdemeanor or felony, and the case number, the remaining fields will auto populate with the style and your contact information. ‘Then you must enter information pertaining to the witness such as: whether the witness works for the government, is under 18 years of age, has a confidential name or address, name, address, telephone number, fax number and vocation of the witness. Select the option for duces tecum if this is the type of subpoena you are requesting and then you can either upload a document containing the instructions for the witness or write your instructions for the witness in the “Witness Special Instructions” location. Lastly, just select how you ‘want the subpoena served, private or peace officer and submit your application, ‘The process of using the FrecFax system is relatively easy to use and understand, but the problem lies with its execution. After you submit your FreeFax subpoena, it is sent to the district ‘lerk’s office where a county employee copies your subpocna application to another program and your subpoena is generated from the information ‘that employee inputs into their system, Ontense Report: ‘Any OFRecors ‘ny Ba ‘Ay int: ‘ay Prone: * wetness County: ‘As a result, almost all of my subpoenas have my address information listed as that of the District, Altorney’s Office or the actual court itself. So basically the material I request via duces tecum, is being sent directly to the D.A.’s Office and remains in their possession until I show up for court and see my subpoenaed material attached to their file. Of course by the time I get to court, the D.A. has already reviewed my subpoenaed information so if I was hoping to get some slam dunk surprise the A.D.A, material for trial, the surprise is over. (Felony case Number: [FRR7TSEDTOTO ~ court: 251 Sie ‘The Stat of Texas va. TURNER, CARL ALEXANDER (SPH: 02482369) TiSTEBSEES Requestor Eat: Gian (Haris County a EERE For that reason, I do not recommend using the FreeFax system for subpoena duces tecum and if possible I would still use the print method. If you are in court where e-filing is required then ibe mindful of the fact that the A.D.A. might get your requested material before you do and will undoubtedly review it before court. So as much as possible be careful what you subpoena and if possible exhaust other methods of getting the desired materials if possible. a 8 3 3 x 3 ey Family owned and operated since 1971 Bilingual staff with over 100 years of experience License # 74346 + We advocate a paid in full attorney is a defendant’s best defense % Non-Arrest Bonds - we accompany your client to the jail or from the courtroom 609 Houston Avenue 713.227.3400 Houston, Texas 77007 Z Interlock An Automobile Ignition Interlock Provider Su John Burns David Girard 609 Houston Avenue 713.223.4424 Houston, Texas 77007 THE RIGIIT TOOL FOR IIE ~ JOB r by Joseph W. Varela ‘THenale nb nhortage of materials available to the defense lawyer to help him defend “his clients, It has always been truc that ‘whey can prinuit faster than you can read it" When some of our older colleagues begat, practicing, and for centuries beford that, books were the only source of help. Now more than ever, the sheer number and variety of works threaten 0 overwhelm us. There are printed books, live seminars, videotaped seminars, inteme-based, research, “blogs,” websites, email lists, and other forms of delivery of information. For content there ate annotated statutes, summaries of case law, digests, legal encyclopedias, ‘specialized how-to manuals, practice tips, discussion groups, form-books, and almost any other kind of help the lawyer can imagine. There is even a computer game that teaches evidence But how to use all these tools? Wrong J) se of a tool may forfeit any benefit that hight have been obtained. caso @) ¥ CONTINUED THE RIGHT TOOL FOR THE JOB THE WRONG TOOL. (Photo by author) | want to focus on three very different books which I consider essential items in the criminat'defense lawyer's tool box. They are Sun Tzu’s Art of War,’ Edward J. Imwinkelried’s Evidentiary Foundations,? and Todd Dupont’s O'Connor's Texas Crimes-and Consequences." Every-eriminal defense lawyer should have these works ad should use them. The beginner should have these three; if he” hasno otherseln thisdiscussion they will serve-as archet 5; what is said about them could be applied by the lawyer to any work that might help him, #10 matter the form or content. Let’s open the tool box apd. examine each in tum-to see ‘what they are aiid how they should be used, TOOLS OF THE TRADE: (Photo by author)” ros od SUN TZU, IMWINKELRIED, DUPONT. Cy preeeretet ore cy This greatest book of strategy consists of thirteen short chapters, It can at once be read through in half an hour and can serve for a lifetime of contemplation. Upon first encounter, it might appear to the uninitiated 10 be little more than a compendium of truisms or slogans. It merely states its propositions and offers no logical proofs, dialectical reasoning, ot historical examples. But the Art of War is truly deceptively simple: every passage is packed with meaning, and should be savored, and each ean serve as a springboard for strategic thought. It can be read when considering @ specific problem or contemplated at leisure for gencral inspiration. The ‘great appeal of Sun Tzu, and why this extraordinary work is still in print after*25-centuries, is its universality It is"@ book about war written by a {general which also applies to business, poker, politics, boxing, chess, dating, bicycle racing, litigation’ — any human conflict or competition Imwinkelried’s Evidentiary Foundations. This is @ handbook which shows us how to lay predicates. It is not a ‘rcatise and contains no case citations. ‘The common problems in evidence are broken down into sections. Each seotion starts with a brief statement fof the doctrine which*sets_out the problem, followed by a list of the elements of the foundation. Finally, and most usefully, there is a sample direct or —cross-examination in question and answer form, including some objections and how to mect them. The’sample looks just like the reporter's record of axreal hearing or trial, Let’s say you want to introduce a tape recording into evidence. You must lay the proper predicate in order to overcome. an authenticity objection. Simply turn to the section that considers tape recordings, and read the-doctrine and listof elements to familiarize yourself with the problem. Then prépare your questions for your witness based on the Sample examination, varying it as necessary to fit your situation. Imwinkelried does not substitute for reading of ‘your jurisdiction’s rules of evidence and case law, but it does save you from re-inventing the.wheel when you're facing a fiesh problem. It will also aid the experienced lawyer as a checklist so he can ensure not to miss any element of the foundation Dupont’s Crimes and Consequences. This is, in a word, thevultimate “cheat sheet.” Dupont analyzes the Code of Criminal Procedure, Penal Code, and other relevant statutes and abstracts them into succinct lists and charts which enable the practitioner to negotiate complex statutory schemes at a glance. For instance, the-Penal Code varies the penalty ranges for theft by the amount alleged to be stolen, and Dupont suppli a chart that shows the gradations; but also shown are the ranges for exceptional thefts (e.g. livestock) and enhancements for repeat offenders. Elements of each crime are laid out. Defenses are cross-referenced. Pethaps the most useful feature of Dupont isthe collateral consequences, such as license suspensions and probation eligibility. Absent are attempts at detailed analysis of case Jaw or practice tips. Dupont offers no food for intellectual stimulation whatsoever; itis simply an analysis of statutes which renders them down to the density of plutonium in a small volume that can be carried anywhere and quickly ~ consulted. ‘There is no point in. “reading” this book because the whole idea is that the lawyer doesn't have to memorize the contents, just know how to look it up. Therefore, perusing it enough to know how the information. is laid out and hhow the index works should suffice. Now to consider how to use each, A cheat shect is uscless if it is not always at hand, Dupont must be with you in the courtroom or it is not useful at all, Dupont is consulted when you are preparing to do a plea, in order to properly advise the client of consequences such as the range of punishment and parole cligibility. Imwinkelried’s handbook on evidentiary predicates must. be. used in the planning stage. When you are preparing for a hearing-or a itial, go to it to help prepare for the witness. If you are in need of its help during a trial, chances are you haven't done your homework, Sun Tzu, in contrast, should be read and meditated upon generally in order to create the guerrilla mind-set necessary for the defense lawyer to internalize.’ Dupont. can’t tell you how to think when outgunned, but neither can Sun Tzu tell you about license Suspensions. ‘There you have it ‘Dupont in your briefease; Innwinkelried atthe officoys Sun Tzu by your reading chaif or bedside. Shes PP, 2008 Voae or the Defoe fae 2 ETSHAATITOW-VHNTUTTNTAcHOM (11) and Funding EC) You have a client charged with aggravated sexual assault of a child, There is DNA evidence, a SANE nurse exam and a forensic interview of the child at the child assessment center. In addition, there are potentially witnesses that may be to provide rock solid alibis for some ofthe oc sexual assaults are alleged to have taken place. Through your preliminary investigation you realize you need experts to deal with with the ‘eross-contamination of the DNA evidence, the SANE nurse possibly misinterpreting medical evidence in the SANE exam and you recognize issues with the CAC interview. In addition, you know you will need assistance to be able to locate and interview those alibi witnesses. Court appointed, or even in most cases retained, you may wonder how to get the funds to put on a proper defense. If done properly, the Court is going to have no choice but to help fund your defense. YOUR CLIENT'S RIGHT TO COURT APPOINTED EXPERTS In its seminal case Ake v. Oklahoma, 470 USS. 68 (1985), the United States Supreme Court recognized that is patently unfair to not give indigent defendant's access to funds for their defense, if a need was shown for the funds, simply because the defendant was indigent and could not afford the funds for experts and investigators. The Court went on to say it was patently unfair that the state/government had unlimited resources to get experts, testing and investigators, that the indigent defendant simply could not afford. @ wesc ‘The Supreme Court specifically held in Ake, that upon a particularized showing of need, a trial court had to provide reasonable funds for the defense to hire experts or investigators. The Supreme Court also realized, to make this particularized showing of need, a defendant would necessarily have to divulge trial strategy and facts maybe not known the state/government, Thus, the Supreme Court stated that due process required these requests could be made ex parte, The Texas Court of Criminal Appeals, in De Freece v State, 848 S.W.2d 150 (Tex. Crim. App. 1993) adopted the holding of the United States Supreme Court in Ake, In the Williams v. State, 958 8.W2d 186, 191 (Crim. App. 1997, reh'g denied) the Court of Criminal Appeals also held, consistent with Ake, that these requests were to be ex parte. ‘Then the issue arose, what happens if you have an attorney that has been retained, but the family or defendant either has ran out of money or cannot afford the necessary expert or investigative costs. In Ex Parte Briggs, 187 S.W.3d 158 (Tex. Crim. App. 2005), the Court of Criminal Appeals stated it was ineffective assistance of counsel for retained defense counsel, with a defendant who could not afford sary expert or investigator, not to seek the funds from the Court. While not explicitly holding that a court had to give defense counsel of a retained defendant who cannot afford the expert or investigator costs, it would not be ineffective assistance of counsel if it was not reversible error for the Court to refuse funding an expert or investigator for a Defendant with retained counsel who cannot afford to pay for those experts and investigators, PROGEDURE TO GET COURT FUNDS IN APPOINTED CASES In order to get funds, there needs to be a particularized need demonstrated to the court. A particularized need means, in the case of an expert, showing the issue will be contested at trial or of importance to the defendant's case. In the case of an investigator, a particularized need will be shown by demonstrating why the investigator's service is needed to prepare or further the defense. In onder to preserve the issue for review, the particularized need needs to be detailed. Defense counsel will have to identify what either the defendant's theory of the case, ‘what the defenses are, and how the expert or investigator are necessary and material to furthering your theory or furthering your defense. The only way to do this is either attach a detailed affidavit to the motion, detail the facts within the motion itself or in chambers on the record in a sealed record, demonstrate to court why the expert or investigator is necessary and material to your case. Without this dotail, the appellate court cannot properly evaluate if the trial court committed error by denying the funds to defendant. As stated above, the motion to get funds needs to be done ex parte, Williams v. State specifically states the defendant is entitled to pursue expert funds ex parte. Defense counsel should not file the motion until counsel has had the judge sign the order to seal the motion. Otherwise, if the judge refuses to sign the order, then defendant’s trial strategy becomes a matter of public record for the state to be able to discover by simply going to the District Clerk’s office. Even if the court denies the request for funds, it is rare a court refuses to sign the order sealing the motion. To ensure that defense counsel secures enough funds, always contact the expert and find out how much they require to complete the necessary work and testify if necessary (if travel is necessary for the expert to testify, the Comptroller's office pays those expenses). For an investigator, get an estimate for completing the work and being available during trial to assist if matters come up during trial you need the investigators assistance, In addition, since the investigator is the one interviewing the witnesses, they will need to be present during trial to possibly impeach said witnesses. Ifa judge refuses to sign an order to seal the motion, even if he/she denies the request for the additional funds, the judge can be subject to a mandamus action, Signing the order is a ministerial act, that if not performed, there is no adequate legal remedy available to the defendant, Quite the opposite actually. If the order is not signed sealing the motion and order, then it will cause irreparable damage to the defendant. In addition, ifa judge is refusing to sign an order sealing the order, even if the access to funds is denied, should make the judge subject to recusal It however will tum into a strategic decision if defense counsel pursues the mandamus. In order to do so, defense counsel will have to file the motion and proposed order and thus give the state access to defendant's trial strategy ‘or access to facts, potentially detrimental to defendant's cease, the state may not have been aware of already. The author would suggest only pursuing a writ of mandamus if ‘you pursue recusal and your recusal is denied. In more rural counties or with newer judges, defense counsel should bring a copy of Williams v. State with them when they approach the court for ex parte funds. Usually judges in these situations are not aware of the law entitling defense counsel to an ex parte hearing and defense counsel has to educate the judge on defense counsel’s right to the cx parte hearing. PROCEDURE TO GET COURT FUNDS IN RETIRED CASES The Court of Criminal Appeals has made clear that simply because a defendant is represented by retained counsel does not mean that the defendant cannot qualify as indigent for other purposes. See Abdnor v. State, 712 S.W.24 136, 142 (Tex. Crim. App. 1986) (“Outside sources such as relatives and even employers are not to be considered unless they are legally bound to pay for defendant's appellate expenses.”" (citation omitted)). In fact, the Court of Criminal Appeals has found retained attomeys ineffective when they have failed to seek funding for necessary experts, in cases where defendants have become indigent but where the attomeys were previously retained. Ex Parte Briggs, 187 S.W.3d 458, 463 (Tex. Crim, App. 2005) coco Gi) CONTINUED Getting Appointed Experts and Funding Dre Just as in court-appointed cases, in retained cases, to get court paid for experts and investigators, there needs to be a particularized need demonstrated to the court as detailed above, However, an addition step in a retained case would be to show the court that the defendant is now indigent or do not have sulficient funds to pay for the expert or investigator The procedures for seeking the funds for a now indigent retained defendant are as described above. The additions to the application is to attach an affidavit of indigence for defendant and an affidavit explaining why defendant is now indigent or now not able to afford the necessary expert or investigator. Ifthe court refuses to enter the order funding the expert or investigator, or fund these experts and investigators for a defendant with retained counsel, retained counsel must consider filing a motion to withdraw. While the court has likely committed reversible error by denying the funds since the defendant had retained counsel, the Court of Criminal Appeals held in Ex Parte Briggs it was not only ineffective for not seeking the funds Dut it was also ineffective assistance for counsel not to seek to withdraw if counsel could not obtain the necessary funds, to fund the defense. will not @ wes ONCE THE COURT APPROVES THE FUNDS Once the motion and orders are file stamped, defense counsel should get a certified copy of the motion for his file. In addition, defense counsel should get at a minimum 3 certified copies of the Order appointing the expert or investigator. This allows defense counsel to provide a certified copy to the expert or investigator, keep a copy for defense counsel’ needed. file and have an extra in case it is The next step is to contact the expert or investigator and notify them the court has signed the order appointing them, Defense counsel should give them any deadlines that might exist. Finally, defense counsel should get them either access to the client and/or any documents and materials needed for the expert or investigator to get there work completed, ILis also critical defense counsel emphasize the expert is 1 defense expert, even though the court is paying the fee Itis helpful to send a cover letter with the order clarifying this relationship. CONCLUSION Following these simple steps, you should be able to properly fund your client's defense at court's expense. BEM aS Information Is Available Srna Pera Guidelines Cer aed Pee unas or WR ke Reet boll Molto se red oreo LEE UE ea Aon) Mee CR) Motion to poe Se) Chess COPNEL wien yrer mood I'M_NOT PERFECT, BUT I'M LOYAL ‘There is a French Proverb that says "You Cannot play at, Chess if you are kind-hearted." Don't let fear stand in the way of success, "YOU HAVETO HAVE THE FIGHTING SPIRIT: YOU HAVETO FORCE MOVES AND TAKE CHANCES...” BOBBY FIScHeR This job we signed up for requires a deep down passion for righting the wrongs we see happening every day in the criminal justice system. If we don fight to protect our rights, who will? Nobody. We are the rebellion against the First Order. Grab your light saber and go to battle Recently, a young-ish trial lawyer found himself in a tough spot that required him to do some soul searching. He was in trial when the State's key officer, who was 3 months pregnant, was rushed to the hospital due to ‘complications with the baby. She had miscarried before and she thought it was happening again. The witness became unavailable after the jury was sworn. The Court id not declare a mistrial sua sponte but instead urged the defense lawyer to request a mistrial on his own. A difficult position to be put in. The lawyer had the night to weigh his options. The Court and the State were putting 4 tremendous amount of pressure on the defense lawyer. The State even made terrible comments to the lawyer, among other things, threatening him that they would never agree to any continuances from him ever again in the future for anything and they tried to guilt him into putting the police officer's interests before his client’ Being a reasonable and compassionate man, the lawyer ‘was deeply tom. As much as he wanted to help the officer with her medical situation he decided that the right thing to do would be to remain loyal to his client. He politely and sincerely conveyed his sympathy to the Court and to the State but told them he just could not agree to a mistrial ‘and would not be requesting one. @ wesc ‘The Court granted a continuance request from the State from Wednesday to Friday to see if the officer would be available so the trial could proceed. The officer saved the baby and recovered well enough to appear on Friday and testify. At 9:30 pm on that Friday night, the jury came back with a Not Guilty verdict. Being a trial attorney is not for the weak at heart, It takes strength and courage to do this job the right way. We often find ourselves in frightening situations and we have to hold our chin up and face our fears head on. Sometimes we are put in positions where there is great pressure to compromise our ethics and our integrity. ‘These are the moments that define who we are. Our decisions set examples for lawyers young and old. In the face of adversity, be strong and stand up for what is, right. You can make lasting impressions on others that will empower them to be strong when the time comes. Most importantly, do the hard things and fight the tough battles for the one who matters the most...You! "THE ONLY REAL LAWYERS ARE TRIAL LAWYERS, AND TRIAL LAWYERS TRY CASES TO JURTES" —CLARENCE DARROW o7.NGI ethics hotline Pw An inheritance nobody wants. a FULL PAGE [INSIDE] :: $700/ISSUE :: $2,520/YEAR INSIDE FRONT COVER :: $800/ISSUE =: $2,880/YEAR INSIDE BACK COVER :: $750/ISSUE :: $2,700NEAR BACK COVER :: SB00/ISSUE « $2,880/YEAR 2/3 PAGE :; $600/ISSUE :: $2,160/YEAR 1/2 PAGE :: $500/'SSUE :: $1,800/YEAR 1/3 PAGE :: $400/ISSUE :: $1,440/YEAR 1/4 PAGE :; $250/1SSUE :: $900/YEAR BUSINESS CARD SIZE :: $125/ISSUE = $450/YEAR Distribution 1000 copies per issue. For articles and other editorial contributions, contact JoAnne Musick at 832-448-1148. To place an ad contact Earl Musick 832-448-1148 / MEMBERSHIP APPLICATION Applicant: ro Firm Name: Telephone number: Fax: Mailing address: Email address: Website: Date admitted to practice Would you like to join the HCCLA listserv? ‘Type of membership (dues) ___ Regular membership ($150*) Public Defender (State/Federal) ($75*) New criminal defense lawyer (within two years of beginning criminal defense practice) (S75*) __ Senior Member ($75*) — Paralegal Member ($50*) — Student ($25) Expected graduation date: Date Signature of applicant Endorsement 1, a member in good standing of HCCLA, believe this applicant to be a person of professional competency, integrity and good moral character. The applicant is actively engaged in the defense of criminal cases. (For paralegals, this applicant is employed by member in good standing) Date Signature of endorsing member PRINTED NAME OF ENDORSING MEMBER Mail this application to: HCCLA, P.O. 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