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HARRIS COUNTY CRIMINAL LAWYERS ASSOCIATION CLEEVENTS Re eR RCN Ue ea eM NOON :: Criminal Justice Center, 1201 Franklin Street, Houston (7th Floor), Tex October 17-18, 2013 :: Indigent Defense Seminar :: Advanced Trial Techniques eee Ae RL NU eae aD Come OMEN ccm) October 24, 2013 :: HBA CLE:: Criminal Appeals :: A 21st Century Approach Co-sponsored by HCCLA «: REGISTRATION at www.HBA.org eS a Re ed December 5, 2013 :: DONALD DAVIS SEMINAR :: DEALING WITH THE PRACTICE: BALANCE & ETHICS DETAILS COMING SOON! DOUBT CALL-IN TALK SHOW Hosted by Todd Dupont / Thursday Nights / 8om Join us in discussing criminal justice issues in Harris County with weekly guests. Sponsored by HCCLA. Houston Media Source Comeast (Channel 17) reno ee ATST U-verse (Channel 99) www.hmstv.org/streaming.htm COTY vee pecla.org Aa aD Sv ae aca) Aa TREASURER Stev DOCS ae Pr iris Peay PAST PRESIDENTS 197-2012 Anat at Kin aes ts Ter KD eis eer Peeler PUBLISHER Ec CGE EO De ron os lim Act es i r or a or E Pear Sid See ec derscom too CONTENTS 14 18 20 22 29 32 33 35 ‘CLE Events ‘A Word from our President by Todd Dupont : Winning Warriors ‘HCCLA News Round Up 11: Welcome New Members! 112: The History and Growth of the Declaration of Independence Readings 12:: The Declaration of Independence HCCLA 4th Annual Reading by Christina Appelt ‘Stranger in a Strange Land by Gene Tausk :Born to be Wild HCCLA Ethics Article by Robert Pelton Double Jeopardy The Inherent Dangers of Dual CPS & Criminal Cases by Julie Ketterman and P. Caleb Patterson Drawing the Blood Test from a DWI Case ‘by Mark Thiessen and Chris Samuelson ‘Practice Pointers ‘A Running O&A by Mark Bennett, Nicole DeBorde, Pat McCann, & JoAnne Musick :McNeely Basics by W. Troy MeKinney :10 Reasons Why Juror Information Forms Need Not Be Returned to the Court Clerk by W. Troy MeKinney ‘HCCLA Extras Ad Rates New Member Application FINALLY! KINDA... "Your Honor, [ object. This is the first time that I have ever seen this evidence.” How many times in trial have you had to utter these words ‘out of disgust, frustration, or disbelief—or all chree? You've spent months preparing for trial. You've reviewed all cendered discovery multiple times. You've formulated a cohesive trial strategy. And then it happens: The invariable last minute, “surprise” evidence located by the prosecutor ‘over the weekend” after trial has started. Now, of course, this evidence is harmful co the defense; and, of course, che Seate wants to introduce this evidence to the jury. Whether ot not the evidence is admieted, more often chan not, it usually depends on a variery of factors (chough, I would argue that it mainly depends on the Coure where you are trying the case). Regardless ic almost always seems like this scenario is the rule, not the exception, for some odd reason, ‘This is likely, in many respects, due co che stace of the Aiscovery law in criminal cases in Texas. For over 47 years, C.CP. Article 39.14 has controlled discovery in criminal cases. This statute came into being in 1965 (two years after Brady v. Maryland became national law), and has been amended three times since (the last time in 2009, making che permissive “may” searute an obligatory shall” statute). That's right. After a fall legislative session, with vigorous debate for change from all of the stakeholders involved, the sist Legislature decided to change the discovery rale, by changing one word, and nothing else. The ‘ease law interpreting the statute was no better: “Criminal defendants are entitled to limited discovery under Article 39.14...independent of che constitutional right of access to ‘exculpatory evidence. Nevertheless, a defendant does not © rower a word from our president Ped Dy paul have a general right to discovery of evidence in possession of the State, Decisions involving pretrial discovery of evidence which is not exculpatory, mitigating, or privileged are within the discretion of the trial court.” Conk 1 State, $84 S.Wad 485 (Tex.Crim.App. 1994) 1 imagine chat any lawyer who tries criminal cases should readily admic that since Texas has never been a "reciprocal discovery” scare, they enjoy the tactical advantage of being able to ery their cases without any legal obligation of having to reveal thei defensive theories of strategies to the State (with very few exceptions). Often, this seems like the oly true advantage to the defense, In fice, Racehorse Haynes has been quoted as saying thac he never knew what his defense was until the State rested, The reality is trying a criminal case is difficule, Sometimes, the side with the most (or bercer) information prevails. And vice versa. This certainly explains why the more information that is made available to defense counsel, the better equipped that lawyer will be to effectively prepace for trial Luckily, for most of the accused in Texas, there has been a wend umber of years by prosecuting offices to have ‘open-file policies” co help promote the efficiency (and, dare 1 say quality?) of criminal justice in their jurisdictions. This type of thinking is progressive, indeed, and certainly allows the accused more access to information than is contemplated and governed by statute. In fact, it was discovered in this jore than 300 prosecuting offices in 1 found session that of the Texas, only «wo maintained “closed-file policies.” this face to be encouraging. Enter the Michael Morton case. Michael Morton wrongfully spent 25 yeats of his life in prison for a crime he did nor commit, Ken Anderson, a rogue prosecutor who deliberately violated the law, and just about every conceivable ethical cannon, (© gain a conviction against a factually innocent ‘man, put him there. I could write an entire novel abour chis case, and about the face that in 2ora the National Registry of Exonerations named Texas among the top thtee states in ‘otal exonerations, with 87 at the time, Reasonable minds could also debate why S.B. x61 is named the "Michael Morton Act” (exonerated in 2011), and not the “Anthony Graves Act” (exonerated in 2010), or the “Randall Adams “Acc” (exonerated in 1989), or anything else, but this futile exercise would be far too lengthy, and misses the ultimate point. Be chis as it may, discovery in criminal cases in Texas thas meaningfully been changed—fnally! Thanks to a lot of people. Sadly, especially chanks ro Michael Morton and his lawyers 1 surmise that The Michael Morton Act is the single most important piece of criminal legislation to come out of che Regular Session of the 83rd Legislature, and also the most controversial, With a loc of hatd work from too many people co mame (many of whom are HCCLA members), this bill passed both the House and the Senate by unanimous vote, and it takes effece Januaty 1, 2014. No matter how long you have been practicing criminal law, of what you believe about the ultimate language of the bill, discovery in criminal cases ss you have known itis about to change—and I would argue for the better. T encourage you to do a couple things. First, re-read Article 39.1488 it is on the books today. To understand where we are going, you really need co understand where we have been, Second, go the Texas State Legislature's website, and pull the Bill analysis. You need to understand the players involved, the background, and che arguments for and against the proposed legislation. Lastly (but certainly not least), begin to become familiar wich S.B. :611, These are che new rules for criminal discovery in Texas. Perera eet eT cen ened 1 do not have the space here for an in-depth analysis of che bill, bur I would like to share an overview of what is to come, so that when January gets here, you are not behind the curve, There are many members of this organization, and other criminal lawyers around Texas, that have begun debating just how these new rales will affect che existing discovery policies and practices in their counties, and just how chey ‘chink it should best be implemented. The first ching you will note is that Article 39.14 was changed by amending Subsection (a), and adding Subsections (@) through (n). Subsection (b) regarding. discovery of experts was lef alone. Subsection (a) was amended whereby once the defendant makes a cimely request, the state shail "produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designaced documents, papers, writeen for recorded statements of the defendant or a wieness, including wisness statements of law enforcement officers but not including the work product of counsel forthe state in the case and their investigators and their notes or report, or any designated books, accounts, letters, phocographs, or objects ‘or other tangible things not otherwise privileged that conscicute ot contain evidence material co any matter involved in the action and that ate in the possession, custody, or control of the state or any person under contract with the state, The state may provide to che defendant electronic duplicates of any documents of other information described by this article, The rights granced ro the defendant under this article do not extend ¢o written communications between the state and an agent, representative, ot employee of the state. This article does nor authorize che removal of the documents, items, or information from the possession of the state, and any inspection shall be in the presence of a ‘ween ) a word from our president representative of the state.” Simply put, the defense is now entitled offense reports and witness statements upon a ‘imely request, and a host of other enumerated items (minus work product), and these items can now be received by defense counsel eleccronically Subsection (@) allows the state to withhold or redact a portion of the discovery if itis nat subject co discovery under the article (provided they notify the defense of the portions withheld); bus, allows for defense counsel to request a hearing to determine whether the applicable document, item, or information being withheld or redacted is justified, Subsection (d) outlines the rules for discovery fora pro se defendant, and includes a limitation for electronic uplication of the discovery. Subsections (e) and () work in conjunction, and outline the limitations on the disclosue ofthe discovery to third parties by defense counsel (or the pro se defendant), and cheit investigators, experts, consulting counsel, or other agents —subject to coure order, previous public disclosure, or redaction requirements. Subsection (g) states that counsel's ability to communicate regarding theit case within the Texas Disciplinary Rules of Professional Conduct is not limited (with few exceptions), and instructs that nothing in the subsection prohibits the disclosure of identifying information co an administrative, law enforcement, regulatory, of licensing agency for the purposes of making a good faith complaint. Subsection (h) finally codifies the legal duties imposed upon the state under Brady and its progeny, Subsection (i) requires the state to electronically record or otherwise document any document, item, of other informacion provided to che defendant under this article © woos Va Dispel Subsection (i) requires che state to electronically record or otherwise document any document, item, or other information provided to the defendant under this article Subsection ()requites each party, before accepting a plea of zuilty or nolo contrendere, oF before eral to acknowledge in ‘writing or on the record, the disclosure, receipe, and list of all documents, items, and information provided to the defendane. Subsection (k) requires the state to “promptly” disclose before, during, or after trial, any new Brady information, as required under Subsection (h. Lastly, Subsection (I) deals with paying costs associated with discovery; Subsection (m) states that Article 39.14 prevails over the Texas public information act; and, Subsection (n) states that the parties are not probibited from agreeing to discovery agreements with equal or greater protection, ‘That's the rule in a nutshell Now, for the “nda...” part. This rule does not provide for a sanction on the state when they do not abide by the new discovery rules. This rule does not address how to deal with evidence that shows up at the last minute, as contemplated in che introduction of this column. This rule does not give us, direction on what to do when 2 prosecutor (like Ken Anderson) cheats, hides and manipulates evidence, and outright violates the law and the ethical cannons to gain a ‘wrongful conviction ac all costs. I mean, in the end, this is exactly what happened to Michal Morton (and 86 other ‘people that we alzeady know about). In ehe end, chs is whae put Michael Morton in a cage for a quarter of a cencuty. In the end, this is precisely the type of behavior that we (as 2 civilized society) are trying to deter, right? Why were these issues not addressed in the new legislation? This, I don’e iknow. Perhaps, the legislature, in theit infinite wisdom, will ‘et to these pressing issues in upcoming sessions? I truly hope so. In the meantime, I call this a really good start. ad winning warriors The Michael Morton Act was signed into law, largely due to the dedication of HCCLA members: Bobby Mims, Robb Fickman, Troy McKinney, Mark Bennett, Pat McCann, Lee Cox, Earl Musick, JoAnne Musick, Chris Tritico, Todd Dupont, Nicole DeBorde and Robert Pelton — all of whom worked tirelessly (along with Michael Morton, Senator Rodney Ellis, Brandon Dudley and others) to help shape and define this bill in making it more favorable to the accused. We owe them a huge debt of gratitude. David Bires, assisted by Brittany Carroll, obtained a dismissal of a capital murder case in the 180th. For 2 years Bires insisted that the State’s case was legally insufficient and pushed for a dismissal, but only after the shooter was convicted of capital murder in another trial did they finally do the right thing. Great job! Mark Hochglaube heard a two word verdiet in the 262nd, in a sexual assault case in which the judge admitted evidence of an extraneous sexual assault of a different victim. With pretty condemning evidence Hochglaube got the jury to focus on reasonable doubt and they walked his client. Frances Bourliot sat second and prepared a thorough mitigation presentation, JoAnne Musick secured a dismissal in an indecency ease in juvenile court by having her client complete a treatment program showing no propensity (o offend but rather kids being kids and acting impulsively. JoAnne paired up with John Denholm to announce ready for trial in Chambers County on 12 counts of aggravated sexual assault ofa child, sexual assault, and indecency after a lengthy game of hide the evidene They negotiated a plea to one count indecency by contact, limiting the client's exposure and registration requirements. Described by the former judge and the current sitting judge as a major win, they took S-life off the table in a county that routinely gets high double digits after trial in these cases! Congratulations to Paul Schiffer for securing a Not Guilty verdict in Court 4 on a DWI. Jim Hanley scored 2 minute NG in Brazoria County on an Unauthorized Use of Motor Vehicle charge. He easily exposed the complainant's lack of credibility and the jury ‘wasted no time on their verdict. Outstanding! Incredible work by Kent Schaffer who secured not one, but TWO major federal fraud dismissals in two weeks! As Robb Fickman says, “Haley's Comet appears more often than a federal dismissal.” Apparently, this is just another day at the office for Kent who first convinced the Feds in Judge Hittner’s court to dismiss a major fraud case after a two-year long battle. Two weeks later he secured a dismissal, on the eve of tral, in an $80 million fraud case in Judge Lake's court, Randy Schaffer won on a huge motion to suppress in the 183rd after a fierce cross-examination of an officer. By the time Randy was done chewing him up and spitting him out the State decided to dismiss the case in the middle of the hearing! Congratulations to Eric Benavides and Jason Luong, who got a 30 minute not guilty on an Assault-FM case in, Court 10. On trial day in federal court, JoAnne Musick secured a plea deal from the government recommending a minor role and probation capped at 3 years, proving good things can come from setting cascs for trial, even in federal court! Quinon Brooker won a MTS in the 339th on a fraudulent possession case, He got the cop to admit that he searched his client's truck (and later his home) without a warrant, consent, or observation of any criminal activity. He credits his co-pilots Alecia Jones and Norwood Richardson, Great work! ‘com 7) connnueo WINING Warriors Congratulations to Norm Silverman for his victory in the First Court of Appeals where he secured a reversal of the denial of a MTS in the 182nd. He got the justices in the mood to ‘Go Out Walkin’ after a “Hard Days Night’ when they referenced song lyrics by Patsy Cline, The Beatles, George Strait and Daft Punk as their reasoning in finding no probable cause for a warrant, Great results from Norm, are pretty common, but this is truly incredible! David Ryan won a huge suppression of marijuana found \eed Judge Hart that Fido sniffing at the door did not establish probable cause to allow the cops to search the entire grow house, Groovy inside a grow house, He conv’ Props to Jose Cejé for a hung jury on a DWI .136/.153 breath test case. Next round he goes for the knockout! for separate clients, John Denholm both won findings of no PC for their clients, In both eases, the judges recognized the bad stops faster than the prosecutors and dismissed! Paul Kendall heard the sweet echo of “Not Guilty, Nor Guilty, Not Guilty” in a3 count aggravated sexual assault of a child case in Chambers County. Congratulations to Josh Schaffer who freed a man from prison after serving 16 years for having scx with his girlfriend who lied about her age. Josh’s client was given a 30 year sentence in Dallas County at the age of 18. On remand, the trial court dismissed the charge on Josh’s motion to withdraw the guilty plea, This is an incredible result that will hopefully send a message that justice is never served by sending a high school student to prison for having consensual sex with a person whom he reasonably believed was his age. @® wesc After 6-week murder trial in Austin County, Katherine Scardino and James Rivera convinced jury to give their client a life sentence over death, Jury rejected insanity defense for killing his parents, siblings and a niece, but spared his life, Incredible outcome with the help of investigator J.J. Gradoni and mitigation spi Vitale, ialist Gina Congrats to Angela Cameron for winning a reversal in the First Court of Appeals for insufficient evidence in an engaging in organized o minal activity ease, David Cunningham saved a young man’s life in a murder trial with a guilty plea to jury that resulted in only 10 year sentence. Round two, two weeks later, ends with two words! Stephen Touchstone won a NG on an Assault-FM case in Court 1 after 2 hung jury the first go around. Way to go for the win the second time, and with second chair DaSean Jones! After picking a jury, Fox Curl eamed a directed verdict in Galveston County for his client on deferred for a 2nd, degree felony. Huge win! Foxy credits Andrew Wright for assisting in voir dire and Kimberly Moss for sitting, second chair Congratulations to verdicts in Court 4! Within weeks of leaving the DAs of Morton won his first victory as a defense lawyer in CCCL 13. In What he referred to as “a little prostitution case” he tore up the rookie HPD Vice Officer. Welcome to the defense bar - wishing you many more NGs! Congrats to John Denholm and JoAnne Musick! After getting a mistrial declared the State dismissed their client's DWI in Court 2. Jury hung on officer's stop and an improper blood test, DPS chemist conceded issues with, blood draw and department SOPs, JoAnne and John went, on to set up @ MTS along with a motion to compel Brady information in MoCo. Having lost with the court refusing to review the material in camera or even file it under seal, they took it to the Court of Appeals who ordered the trial court to collect the Brady material and file it under seal for review, as it should have done! Jed Silverman won a MTS breath test mid-trial in Court, 8. Ina DWI and UCW case, he impeached the officer with dispatch records and established a 15 minute observation period violation. Judge Karahan granted the motion and State dismissed both charges! Randy Ayers scores a 15 minute NG in the 176th when he convinced a jury not to buy the HPD officer's, testimony that his client gave oral consent to a search a search that led to a whole lot of dope. Way to go! Darrell Jordan and second chair DaSean Jones won a ‘two-word verdict on an unlawful carrying of a weapon case. They held the State to its burden and the jury did the right thing. Keep up the good work! Congratulations to Dennis Yates for s. incredible NG verdict on a civil commitment violation in Montgomery County. His client was. previously determined to be a violent sexual predator who had been kicked out of the program. Unbelievable result! Celeste Blackburn convinced the Sth Circuit to reverse a conviction for a felon in possession of a firearm based on plain error, Outstanding result! Mark Thiessen scored a NG on a DWI 0.199 blood evidence in Court 4, Shelby Burns sat second in, amazement as Mark lined up 17 bottles of beer on the jury wall during closing. After four days of trial with 3 officers, a nurse, a lab expert, analysts and everything, else the State could throw at him, the jury retuned a two, word verdict in only 15 minutes! The following week, Mark and Shelby went on to secure another vietory in, Court 7 with a DWI no accident, no test, no guilt Congrats! Hats off to Gary Miller who got a two word verdict in the 174th on a felon in possession of a gun case, Client was a true habitual facing 25-life case and rejected every State offer ‘Major props to Craig Still and Scott Pope for scoring a mistrial on a huge cocaine case in the 228th. Congrats to Thomas Lewis on an aggravated robbery NG. in the 176th, John Burns and Shannon Burns Pena with Donlee Smith at Rusty Duncan Seminar 713-223-4424 Cee ne AeA ee ORL ea cTd enue @) BURNS BAIL BONDS 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 burnsbailbonds@yahoo.com Interlock An Automobile Ignition Interlock Provider Se John Burns David Girard 609 Houston Avenue 713.223.4424 Houston, Texas 77007 ezinterlock@yahoo.com HCCLA Welcomes The Following New Members: Altes Seed rare rein Rd Se Ct a) Peo Cone Paralegal Members Cammie Cooper, McLemore Reddell Ardoin & Story, PLLC THE HISTORY & GROWTH OF THE DECLARATION OF INDEPENDENCE READINGS HCCLA Past President Robb Fickman began this annual tradition on July 3, 2010 when he convinced a small group of local defense lawyers to recite the Declaration of Independence in front of the courthouse. “The Declaration was the beginning of the long fight for liberty in America,” said Fickman:-The. Declaration was {followed by the Constitution, the Civil War and the Civil Rights Movement. As defense lawyers, we recognize our historic. role in the continuum that began with the Declaration. Our Founders’ fight is now our fight. We read the Declaration pronouncing that our commitment to the fight for liberty in America has never been stronger.” His own commitment has never beén stronger. He has taken this grassroots movement across Texas and the United States. In 2011, Gary Trichter, then-President of the Texas Criminal ‘Defense Lawyers Association (TCDLA), joined Fickman’s efforts and together they inspired defense lawyers from all over the state to recite the Declaration in front of their local courthouses. In 2012, Robb decided to expand the tradition further by reaching out to other state criminal bar associations when he organized the first National Reading of the Declaration of Independence. Criminal defense lawyers gathered to read ‘ities across 12 states and the District of Columbia. This. year he persuaded defense lawyers in even more states to join the movement, HCCLA members also cartied the tradition with them on. vacation this year, including Rand Mintzer in Hawail and Tyler Flood in England (in front of British Parliament!) In just a few short years, this has been taken from a Houston event to a national event with a growing number of criminal defense lawyers publicly honoring the rights they support and defend every day. ‘The statewide campaign has also continued to grow. This year, with the help of Bobby Mims, Joseph Martinez. and Melissa Schank, Robb was able to recrult TCDLA members to organize local readings in front of 52.courthouses, more than doubling the number of readings held in Texas last year! Special thanks to Robb Fickman and all those who Supported and assisted in the readings for thelr tireless efforts in expanding this rich tradition that started right here in Harris County. Robb's ultimate goal is to unite defense lawyers in all 50 states to make the readings an annual defense bar tradition—as a reminder of the importance of ‘the roles they serve in preserving liberty in America. He has ‘also set up a website with photos and more information: www.CriminalDefenseDeclarationReading.com ANNUAL READING By Christina Appelt, Executive Director In celebration of Independence Day, the Harris County Criminal Lawyers Association held its fourth annual reading of the Declaration of Independence on the front steps of the Criminal Justice Center. Thanks to the vision of Robb Fickman and the HCCLA leadership of Nicole DeBorde, Earl Musick, Chris Tritico, and Todd Dupont, these readings have become a very special tradition. President Todd Dupont said, “The Declaration of independence is our nation's most cherished symbol of Liberty. This sacred document contains within its text the fundamental Truths that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” He added, “Some of us fight on battlefields to protect and preserve these rights; others, like criminal defense lawyers, fight in the courtroom. | am honored to be able to participate in such a meaningful occasion with my fellow brothers and sisters of the criminal bar. | imagine that Thomas Jefferson is smiling down upon HCCLA as we read his most exalted expressions of the minds and hearts of the American people.” More than 100 defense lawyers, judges, friends, family and onlookers gathered outside the courthouse on July 3rd to hear the words of our Founding Fathers read out loud by 38 HCCLA members, myself included. | am not a defense lawyer, but | was proud to stand among the defense bar at this year’s reading. I share the same love of liberty and deeply admire what they fight for (and against) on a daily basis. It was a great honor and a moving experience to read a section of the Declaration which included the word tyrants—particularly as elected officials stood in observance. Not all who govern us are tyrants, but they should all heed these words as a reminder that tyranny is not the American way. Unfortunately, there are very real tyrants in Harris County. Justice is hardly the goal of a tyrant—one who has chosen to blatantly disregard his or her oaths and duties. Every time a defendant is denied due process, coerced into taking a guilty plea—or had his bond illegally revoked, his home or vehicle unlawfully searched, or his Brady material withheld—there is a tyrant at play. When a tyrant deprives a presumably innocent citizen of his rights, the liberty of us all Is at stake. Our jails and prisons are overcrowded, not because crime is on the rise, but because tyranny is. Tyranny is the antithesis of the defense bar. Over the years, | have heard HCCLA members voice similar complaints as those of our Founding Fathers: Our Petitions have been answered only by repeated injury. Defense lawyers have lamented about the /ong train of abuses against their clients, and the unreasonable court resets designed for the sole purpose of fatiguing them into compliance. This is why defense lawyers embrace the readings. Just as the signers of the Declaration fought an oppressive government in 1776, criminal defense lawyers fight one in 2013. Defense lawyers are charged with the duty of preserving the unalienable rights of citizens accused, from those who are too often deaf to the voice of justice. Defense lawyers stand up to tyrants every single day and safeguard our liberties. I ove the spirit of this defense bar and can’t help but hold this one last truth to be self-evident: that anthems, fireworks and barbeques aside, defense lawyers truly embody the spirit of what Americans celebrate every Fourth of July! cose STRANGER IN A STRANGE LAND: REPRESENTING THE FOREIGN CLIENT BY GENE P. TAUSK T once had to take a Zoology class as an undergraduate for ‘science credit. The smartass Graduate Teaching Associate made us do an interesting exercise the fist day of class, “Shake hands with the person on your right,” he said. “Now, shake hands with the person on your left. Get t0 know each other well because one out ofthe three of you ‘will fil this class.” It woke us up from our early moming freshman slumber. The failure rate was much less (I didn’t fail but my final grade certainly was not my finest hour). For some odd reason, however, this little bit of sadistic fun at the hands of the GTA has always stuck with me I never realized that I would make use of this example ‘many years in the future when I became an attorney. So ~ to repeat the exercise: go to somewhere random in Houston and shake hands with three people. Chances are, one of those three is not a native-born United States citizen. The person may be unlawfully present in the U.S., may have a Green Card, may have a temporary visa to live in the U.S., or may be a naturalized U.S. citizen. This article does not deal with Immigration law; there exists a vast amount of information on this subject. Rather, want to discuss some of the other issues criminal defense attomeys face when dealing with clients who come from & background other than the United States. Houston is one of ‘the most ethnically diverse cities in the U.S. While this is, a point of pride for Houstonians, and rightly so, sooner or later a criminal defense attomey in Harris County will have to represent a person who came to the U.S. later in life and does not have a native-bom American's familiarity with our laws. This offers some challenges. GRACE Never another sleeping lawyer... ‘What can you do to help? Visit our website at wi. araeelaw.ors @ woos LANGUAGE BARRIER gHabla espaiol? Tonoprte mo-pycexn? Msnanere we. Tosopwre sim Grurapexn? Fn esak beszélek magyarul. Tudna nekem segiteni? Cu vi povas trovi min interpretisto iu parolas Esperanton? Because Houston is a multi-ethnic society, it goes without saying that our city is a multi-lingual society. I do not know of any experienced criminal defense attorney that has not represented a client for whom English is not the client's first language. It goes without saying that Spanish is the most widely spoken secondary language, But there are hundreds of other languages spoken in Harris County. Tonce had a client whose native language was Greenlandic {spoken only by about $0,000 people) ‘The obvious point here is: does your client fully understand what is going on atound him because of this linguistic barrier? The first question is: does your client need an intorpreter? The second question is: do you, the attomey of record speak the language of your client ifhe does need an interpreter (good luck if the language is Greenlandic)? If not, do you have another attomey at your Firm or in your office that speaks the language? How about a member of ‘your staff? Will your client provide a friend or relative to interpret for you? ‘Once this inital linguistic barrier is cleared, however, the next issue is: just how proficient is your interpreter? If ‘you are aeting as the interpreter for your client, ean you honestly say you have the ability to translate complex legal issues and ideas from English into your client's language so your client will understand? Can you say the same for your staff? If your client is bringing in a friend or family member to interpret, does the helpful interpreter have the knowledge of American law and the legal terminology in both languages to fully and clearly explain to the client what is happening? It is a bad time to discover the day before your client will accept a plea that your Spanish-English interpreter picked up his Spanish while watching Venezuclan beauty contests. I would respectfully suggest that if you, the attomey of record, do not speak your client's language well enough to interpret, then at least some of the time when you are ‘meeting with your client, take with you an interpreter that you know or have good reason to believe is proficient in the language. It is important that at certain critical times, such as explaining the risks of going to trial or explaining, the details of a plea agreement that your client is fully aware of his situation. Many paralegals and legal assistants become proficient in “legalese” in different languages as a result of their job. If you do need to retain a professional interpreter, remember that these individuals have a work schedule which is as important to them as the trial calendar for attorneys. I can guarantee that there is nothing more annoying for professional interpreters than getting a request to “help” someone for a few minutes which then tums into a half-day affair. Professional interpreters deserve our respect just as we would respect fellow members of the Bar ‘Also, it helps sometimes to leam about the language your client speaks to learn a litte about his culture. Your client speaks Spanish? Which dialect? Spanish is the language of about 20 countries and millions of people. Narrow it down a bit. Your client speaks Chinese? Don’t assume it is ‘Mandarin. Mandarin is just one of the Chinese languages and a Mandarin speaker can no more understand a Cantonese speaker any more than a French speaker would understand German, Client speaks Greenlandic? (Not) surprisingly, I couldn't find a Greenlandic speaker Fortunately, in researching the issue, I discovered that (until very recently) Greenlandic and Danish were the official languages of Greenland and, yes, my client spoke fluent Danish, A call to the Danish Consulate here in Houston solved my problems. Our clients deserve to understand what is going on at this, ‘one of the most if not the most critical point in their lives. ‘They deserve the best interpreters available. When a client has to make an important decision that faces all defendants in criminal defense matters, itis critical that the person ‘who is an intermediary between the attorney and the client can do the job. ‘We tend to forget as practicing attomeys that, with all of the flaws of our legal system (and there are a few), we live in a society with transparency and accountability. We do not bribe our judges. We do not use professional assassins to kill our opponents. We all know or have heard of judges and attorneys that have been prosecuted and convicied and are sitting in jail for breaking the law; the laws of our country have real, enforceable consequences for corruption and racketeering. Despite tired jokes on late-night TV and the affected scom of some public officials, the law is a respected profession in this country kommen_ alve Doe aD) CONTINUED :: STRANGER IN A STRANGE LAND: REPRESENTING THE FOREIGN CLIENT Unfortunately, this isnot true in many areas of the world, It is ‘not uncommon for clients born in other countries to grow up in aan environment where the law is simply a term for bribery and {stice goes to those who can pay the most money. Or, worse ‘yt, the client may come from a country where appearing in & ‘courtroom is another name fora death sentence at the hands of cither government thugs or private killers. Ivis important, therefore, that our clients understand at least the basies of American legal jurisprudence when we undertake ‘our representation. The client should be made to understand that he isnot guilty until he ether admits his guilt in front of «judge or loses at iral. He should also be made to understand ‘atthe attomey-client relationship is one of the most powerful legal relationships that exist in America and for 2 defense atiomey to be able to do the job properly, the attomey must have the clien’s full confidence and know everything. This second partis especially important, Clients who originate fom countries where defense afomeys are essentially just a part of the prosecution are often fearful in regards to speaking with defense counsel. This can lead to an inability to effectively represent the client. Take the time, therefore, to educate a client about our criminal defense system. It is important that clients from @ non-American background understand that our system does provide inalienable rights that protect individuals, Our clients need to understand that they not only can trust their criminal defense attorneys, they must trust their criminal defense attorney if anything isto be accomplished, Our clients need to ‘understand that we work for them and not for the government, A PLEA DEAL IS A PLEA DEAL... EXCEPT WHEN ITS NOT Most of our cases will be setted in ples deals and not go to trial. As criminal-defense attomeys, we understand this and accept it as a part of our job. It goes without saying that experienced criminal defense attomeys realize that a plea agreement isa “contract” between the defendant (our client) and the State. I further goes without saying that all plea deals need to be followed by the defendant to prevent the client from encountering something worse, usually jail time or & finding of guilt (if the client was placed on deferred adjudication or the like). Although a plea agreement is ike a “contract,” however, breaking the contract has severe consequences for the client. There are usually no second chances if the plea deal is broken. Many times, however, a client not familiar with the ‘American judicial system will not fully understand just how serious are the ramifications for breaking a plea agreement. ‘Our clients need to understand thatthe plea agreement is not just a “contract” between two parties; itis a contract where ‘one of the partes has unlimited power should the deal be @® wens usually no second chances if the plea deal is broken. Many times, however, a client not familiar with the American judicial system will not fully understand just how serious are the ramifications for breaking a plea agreement. Our clients reed to understand that the plea agreement is not just “contract” between two parties; it is a contract where ‘one of the parties has unlimited power should the deal be broken, As criminal defense attomeys, we immediately recognize the consequences if our client breaks a plea agreement. Itis almost second-nature to us. But, a first-time offender from a foreign country looking ata plea agreement forthe first time ‘may not fully understand just what he is signing. The client needs to be aware that plea-agreements often do not offer second chances. This is not a business contract; this is often situation where a person’s freedom is on the line. Signing ‘on the dotted line in a plea agreement is not the same as ‘bank loan nor should it be treated as such. CONCLUSION Representing a foreign client has certain challenges. But, these are not insurmountable. Representing a foreign client just requites certain precautions that we tend to take for ‘granted, It is obvious that a person who does not speak English requires an interproter. But, at this important time in the client's lif, it should be an interpreter who is proficient in “legalese” as well as the other languages. If a client is reluctant to tell the attorney information, don’t assume it’s because the client is lying or being deceitful if the client is not a native American citizen, Unfortunately, in many countries around the world, defense attorneys are no more to be trusted than the prosecution, Finally, a client needs to understand that a plea bargain is in many ways a “deal ‘with the devil.” Ifthe plea is breached, there are no second chanees, The title of this article is not from the Bible, but from the science-fiction novel of the great Robert A. Heinlein. For criminal defendants from another country, our legal system does indeed often seem like they have been transported to and are now living a different planet. It is our job to help such clients “grok” * our world as much as possible, Gene P. Tausk sa partner at Tausk & Vega. In addition to practicing criminal defense hes a Certified Fraud Examiner. Prior to becoming 4m attorney, he served for several years atthe United States Embassy In Moscow, Russian Federation. *Read the book. You won't regret it. I BONDS EXPERTS . 113-221496 3 ~~ www. lockwoodhailbond.com Services we Provide: 1417 CONGRESS ST HOUSTON, TX. 77002 _:, + Free Gi tion = ™ + Expert Court Testimony Wood isher Jr. (On #7445 HCCLA ETHICS by Robert Pelton Geoff Grubb, M.D., was one of my childhood friends whom I met at age seven in Abilene, Texas, when we entered the first grade, He finished high school at age seventeen, went to medical school, and then became a psychiatrist. He trained at Rusk State Hospital and at the end of his career did psychiatric work at state hospitals all over Texas. His career was cut short when he had a brain ancurism caused by stress and Type A Behavior. He had helped me on many of my cases and sometimes before could give him all the facts, he would stop me and tell me the answer. Dr. Grubb always said at least 3-5 % of the population was born with the propensity to become criminals. Think about that; think about the notorious criminals: Bonnie Parker, Clyde Barrow, John Dillinger, ‘Al Capone, Ted Bundy, Charles Manson, John Wesley Hardin, and Billy the Kid. Are they part of the 3-5% who ‘wore born with that propensity? Did their mental health play a role in that propensity? Often, the immediate response of jurors is to “lock ‘em ‘up and throw away the key” or “line them up in front of a firing squad.” However, this cannot be your response, And it shouldn't always be society's response, but that's a whole other issue, ‘When asked how to prevent crime, Warden Dufly of San Quentin State Prison once said, "build a better child." And he was right. We should spend money on mental health programs and Iunch programs for poor kids rather than sports stadiums and more prisons. Our society simply drives some people into a life of crime. When you have a client who falls into that 3-5%, go back three generations and see where your client came from, and you will better understand how they got where they are now. Obviously, not all offenders fall into the 3-5%, The others commit criminal acts because of childhood occurrences, environment, peer pressure, poverty, revenge, social issues, ove andior jealousy, drugs and alcohol, gang-affiliations, ignorance of the law, hormonal imbalances, and money (among other things). Some see committing criminal acts as a way for survival. The key is to determine where your client falls in this spectrum, @ wesc Lawyer Katherine Scardino, one of my friends, recently saved one of those 3-5% from the death penalty. Even though she did a remarkable and ethical job of presenting a mental health defense, yet the jury gave her client life without parole. The evidence that Katherine presented was clear and the verdict should have been not guilty by reason of insanity. Players: State v. Maron Thomas ‘Austin County, Texas Death Capital Trial May - First Week of July 2013 Judge: Jeff Steinhauser Lead Counsel: Katherine Seardino Co-counsel: James Rivera Mitigation: Gina Vitale Mental Health r. Kristi Compton, Ph.D. Psychologist, Dallas, TX Dr. David Self, M.D. Payehiatrist, Rusk, TX Prison Expert: Frank AuBuchon Crime Scene: Louis Akin (did not testify) Maron Thomas was charged in Austin County with ‘murders in one criminal transaction. He killed his mother, stepfather, sister, brother and 2-year-old niece, who was beheaded, and her head and body were separated -meaning hhead in one room and body in hallway. The murders occurred in the family home, The facts of the erime itself. suggested a mental health issue, which included Maron and his brother running naked through the field shortly before Maron killed his brother by shooting him twice - once in the back and once in the neck. Maron had never had any ‘mental health history prior to this one incident. Initially, the investigators and the DA assumed that the killing spree was caused by the ingestion of a controlled substance - like Wet (marihuana with PCP) - but the drug testing done on Maron within hours of the offense indicated that the only drug he had in his body was marihuana, There was no other controlled substance. Maron had no prior criminal history; hhe was 23 years old. He had lived at home with his family his entire life and the family had only moved to Bellville within the prior 2 years. Maron was Muslim with Islamic literature scattered all over his room, He wore a Kafi (cap) and prayed 5 times a day. He did not have a girlftiend or other friends other than his family. He was very close to his mother. He used ‘marihuana, usually smoking it with his brother and maybe cone of his brother's friends. The defense believed that Maron was insane at the time of this heinous offense and began mounting an insanity defense. Knowing the defendant needed to be interviewed quickly so that a doctor could help establish his mental state at the time of the offense, Lawyer Seardino called Dr. Compton immediately upon being appointed by Judge Steinhauser and asked her to go see Maron as quickly as possible, Within six days of the crime, Dr. Compton was at the Austin County Jail. Dr. Compton’ testimony was crucial for the jury to place any credibility on the mental health issue. She saw Maron about five times over the course of, this case, and each time, she saw evidence of delusions and hearing voices and unrealistic thinking. About fone year prior to trial, they hired Dr, David Self, who interviewed Maron four times. Both experts agreed that he was schizophrenic and that this crime was the result of a schizophrenic episode. Dr. Self was amazing on the stand. He spoke in terms that the jury could understand and he was believable. Neither Katherine Scardino nor James Rivera believed that Maron Thomas was sane and he certainly should not be on death row. Because of their insanity defense, the mental health experts testified in the guilt phase of the trial. The jury rejected their insanity defense, but it was frontloaded to them for the punishment phase of the tral, Itis believed that most of the jurors accepted that he was in fact insane, but having five dead people, with a child decapitated, was just too much for the jury to say those wards "Not Guilty by Reason of Insanity". So, Katherine felt the LIFE verdict was a compromise, but one that she gratefully, surprisingly, accepted out of Austin County. He was, as my West Texas friends say, “Bat shit crazy and always had been.” T know several crazy lawyers but as Waylon says, “I've always been crazy, but it's kept me from going insane.” When dealing with clients, especially those with mental illness, keep detailed notes. Always try to get family members and friends to help. Remember to get a waiver of attorney/client privilege where appropriate. Listen to your clients, Get HIPAA releases for medical records and general authorizations to get all school records, jailiprison records, or any other kind of records. If your client has been in the military, get all of those records, The records will help you paint a picture of your client. Get a video of the family to show the judge or jury. Closely examine any records your client brings in ‘We have recently had clients counterfeit college degrees, letters of recommendation and such, We then presented those as evidence and later found out in further court action that the documents were phony. A degree from Harvard is great, but not when the school has no record of attendance. In short, do your work and be mindful of the rules of ethics, Lawyering is no joke. It isa serious profession in spite of | all the distasteful advertising. Locking a man or woman up for years in cells or cages is an extreme event. Many. of the old time gangsters learned the art of crime after being wrongfully convicted for petty crimes when they ‘were young. ‘A great basic resource for dealing with mental health issues is MENTAL ILLNESS, YOUR CLIENT AND. ‘THE CRIMINAL LAW, A Handbook for Attomeys Who Represent Persons With Mental Illness by Texas Appleseed and Texas Tech University School of Law. This handbook ‘can be found and downloaded at www.texasappleseed.net It includes a list of Top Ten Things to Keep in Mind As ‘You Represent a Client With Mental Illness that can be @ great starting checklist. Sr me) DOUBLE JEOPARDY: by Julie Ketterman and P. Caleb Patterson AAs aparent, a cal or visit from CPS (the Department of Family and Protective Services) is one of the scariest things that can happen. Why? Because it means the government is coming into your life with the power to potentially tear your family apart. Parents in these cases are talked down to, insulted, and often threatened with the loss ofthe children, Then, just when they believe it simply could not get any worse, the police all Tae CPS investigation has been handed over to the police for possible criminal charges, What docs a parent do? What type of | lawyer do they even call ~ civil criminal, family? And, perhaps most importantly, how does their lawyer prevent the parent from losing one ease while trying to win the other? ‘A parent in this position is tly caught between a rock and a hard place. On the one hand, they are fighting to preserve their family. On the other, they are fighting for their very freedom, Unfortunately, there’ are hidden traps in both types of eases, What may help a parent win the CPS case ean crater the criminal case; what may help beat the criminal charges can absolutely crush your chances of winning the CPS case, @ wesc ‘The first step in @ CPS ease isthe adversarial hearing, at which CPS must provide sufficient evidence to convines a person of “ordinary prudence and caution” that there is continuing danger to the child. Ifthe court finds CPS has met this burden and grants it temporary conservatorship of child, the parents are then required to do court-ordered services." These services cean include (but are not limited to) parenting classes, ang ‘management classes, sex offender classes, psychological assessments, individual therapy, drug. assessments, and both in and outpatient treatment, Privacy for the parents becomes a thing of the past. CPS will also require the parent to sig a HIPAA release which will give the agenc) ‘medical andior mental health records. Parents are also requited to Tet the caseworker, the atlorney ad litem, and sometimes the Court Appointed’ Special Advocate (CASA) come into their home and talk with them at any time, The agency takes pictures of the home, the children’s rooms, and other places like the inside of the refrigerator. The parents are also ordered to attend all court hearings, to cooperate with all that CPS asks them to do, to cooperate with the criminal investigation and, The average criminal attorney, after reading the above description, is probably experiencing heart palpitations. Any seasoned criminal attomey should be enraged. There is no requirement for probable cause, warrants, of any of the other protections found inthe criminal justice system. And, all of this ‘an happen while there is either a criminal investigation or case going on at the same time in another courtroom, Everything that the parent states to anyone involved in the CPS ease is a “noncustedial statement” and can ~ and most likely will ~ be used against them in the criminal case. Needless to say, the evidence and statements made during the CPS ease ean ruin the criminal defense before it even has a chance to star. CPS HEARINGS There are five statutory hearings in a CPS case, the potent for numerous “special” status hearings, as well as a final tral, At each, the parent is put under oath and asked an array of questions by the county attomey. And, of course, the Family Code mandates that all CPS hearings be on the record. Now, in addition to all the out of court statements the parent has made to CPS, there are various swom statements made by the very parent that the state is also prosecuting criminally. The ‘medieal/mental records that CPS obiained with the HIIPPA release and the results ofany medical, mental, or other required evaluation will also be shared with the criminal investigators. In addition, the caseworker and the providers can be called as witnesses in the criminal case. In essence, the CPS hearings and investigation can force @ parent to give evidence against himself or herself. Even worse, unlike a criminal ease, @ parent who invokes their Fifth Amendment right against selfincrimination dduring a CPS investigation or hearing ean have that invocation used against them.” 1 ADMITTING TO THE ‘CRIME CPS will often tell a parent that if they admit what they “id” to a therapist or take responsibility for their actions, they will then be able to work towards reunifying the family. Patients who refuse to admit to the allegations CPS fas made against them will sometimes be “unsuccessfully discharged” from therapy as punishment. A husband and wife I helped represeat recently suffered this fate when they both refused to admit that domestic violence had occurred in the relationship. OF course, had they admitted to domestic violence, one or both of them would have faced criminal charges because that admission would have been disclosed to CPS and the criminal investigators This is all a trap and @ manipulation. Reunifications rarely happen in eases where criminal charges have been filed. CPS, like a police officer, s allowed to lie and make promises that they have no intentions of keeping. A CPS supervisor once told a client that ifhe took the sex offender evaluation and class and admitted to what he “did,” he could move back home with his wile and children. I almost fell out of my chair, The sad truth is individuals without an attorney may actualy believe this and ddo what CPS asks of them, thereby dooming both their criminal and CPS eases, This problem can cut both ways, A parent may be offered a plea deal on the criminal charges that will have unintended onsequences on the CPS case, Certain criminal convictions, including those that result in imprisonment for two years orany conviction fora crime of family violence, result inthe automatic termination of parental rights.” Parents or atomeys who aren't aware of this ean accept what seems like a good plea bargain only to later discover it had far more dire consequence than they knew. THE SOLUTION ‘The best approach to this problem, I believe, is to hire a separate attorney for each case; a family attorney and criminal atlomey that are both well-versed and experienced in their respective fields, The client must also insist that these attorneys communicate with each other about their cases. OF course, the expense of hiring two attomeys may make this solution impossible for most, If client can only hire one attorney, 1 think they should hire an experienced criminal attomey. The logic behind that is simple - you can't fight for your children if you are in prison. Furthermore, a parent can still ask for 4 court-appointed atfomney on the CPS case, This should be done early in the case so that they are protected for as long as possible. The criminal attomey may have to fight to make the court-appointed CPS attorey communicate and will also have to hope that the court-appointed atiomey is wise enough to do what is necessary to protect the client criminally, but it’s better than having no representation before CPS at al ‘One problem with this strategy is if CPS does not immediately roquest termination of the parental rights, The court will not appoint an attomey fora parent unless and until the stated goal of the case is termination. CPS is aware of this and will often keep the official goal as family reunification or placement with a relative so that the parent does not qualify for the court-appointed atlomey, even when they have every intention ‘of secking termination. This is problematic because then the client is sil left with absolutely no representation on the CPS case. As you can imagine, this is a disaster waiting to happen, especially for those clients who still believe that the “truth” will set them free. Regardless of whether the client has a CPS attomey or not, I would advise any criminal attomey to attend fevery CPS hearing if for no other reason except to make sure the elient avoids testifying under oath until the eriminal ease is resolved, CONCLUSION CPS cases that involve criminal charges are fraught with peril and tough decisions. Any attomey must balance their clients’ interest betwen preserving their family and protecting their own freedom. With careful planning and experience, an attorney and har cleat can reduce their chances of having to make the difficult choice of one ofthe other. i TEX, PAM, CODE. § 262.201 fi See TEX. FAM. CODE § 263.102, iil See TEX. FAM. CODE §§ 262.201; 263,201,268,301, iv See,eg, Inre CAP, 134SW.34 343, 352-53 (Tex. App-—Amarillo 2003, pet denied) (Refusal to answer questions by asserting the privilege is relevant evidence fom which the finder of fat ina cvil aetion may draw ‘whatever inference is reasonable under the circumstances") v_ TEX, FAM, CODE §161.10 coco By: Mark Thiessen and Chris Samuelson The era of the total-refusal DWI case is quickly coming to @ close in Texas. Gone are the days of refusing a breath test without concem for something more invasive. DWI blood test trials are the future for the eriminal trial attorney On April 17, 2013, the United States Supreme Court recognized the ease of obtaining a blood search warrant in most metropolitan areas; henceforth, barring warrantless blood draws without an exigent circumstance, other than the ‘metabolization or natural dissipation of alcohol in the body. Prosecutors in Metropolitan areas are already responding by having police document any possible exigent circumstance and demanding blood warrants for every refusal.’ The trickle down ramification is that “no-refusal” weekends are now every day of the year. Regardless, the best defense to winning a DWI blood case may sometimes reveal itself before even attacking the procedures of the blood draw or the analysis of the sample. Every DWI attomey needs to be able to navigate Texas’ blood laws. In doing so, a skilled DWI attomey may discover the perfect angle of attack before trial by systematically analyzing the case and asking the following questions: @ wesc WAS THE CLIENT UNDER ARREST AT THE TIME OF THE DRAW? Ifthe client is not under arrest, then anyone can draw the client's blood. Implied consent laws only apply if the client is under arrest. For example, if the client goes to the hospital voluntarily afier an accident, the hospital staff may draw his blood with his consent for medical reasons. It is up to the client at that point whether he cares or wants to determine if the blood drawer is a phlebotomist, doctor, nurse, etc. A client may also have blood drawn for general health reasons. In cither scenario, the client may give consent to whomever and wherever to have his blood drawn. Another example may be where the client comes into @ hospital unconscious and is left to the expertise of thé hospital staff in performing the necessary course of care. If the client is not under arrest, it doesn’t mean that a charge ‘may not arise later, but it would require a Health Insurance Portability and Accountability Act (HIPAA) Grand Jury subpoena for the State to obtain the hospital records, Recently, an intoxication manslaughter client was taken to the hospital before police arrive; however, the police took a DPS blood kit to the hospital and demanded the client's blood, wondering if the client was intoxicated. The client was unconscious, but not under arrest, Accordingly, the implied consent statute is not triggered until suflicient probable cause exists and a person is placed under arrest for DWI. So then, the Court must analyze whether any exigent circumstances existed to circumvent the warrant requirement, which will be discussed later. Ifthe individual is under arrest, then figure out who is asking to draw the blood? WAS THE DRAW DONE AT THE REQUEST OF THE POLICE? NO. If the client is under arrest, yet a police officer is not requesting the blood be drawn and tested, then anyone can draw the client's blood, depending on the scenario. For example, if your client submitted to a breath test, but doesn’t trust the intoxilyzer result, the client may then make arrangements for his blood to be drawn and analyzed." This also assumes the police are cooperative in this request however, if they are not then that refusal to allow the client to submit a second sample may be admissible in trial." The client can have his blood drawn by “a physician, qualified technician, chemist, or registered professional nurse” within two hours of the arrest. This is a rare or unlikely scenario ‘where the client is under arrest but the police are not asking for the blood to be drawn or tested and the client is willing to submit to a blood draw. A second possibility may occur where the client is under arrest and taken to a hospital for medical treatment, but the police do not obtain a warrant and do not ask for the blood at the time it is drawn. Here, the hospital may need to test the client’s blood before administering certain medication or for other medical reasons. The prosecutor typically sends a Grand Jury subpoena to the hospital for the client's medical records, including any blood alcohol results, at a later date, however, in this situation, the hospital will most likely use enzymatic assay testing for medical treatment rather than forensically accepted gas chromatography. Hospital enzymatic assay test results should not be forensically acceptable in a subsequent DWI prosecution.” YES. 1fa police officer or other law enforcement official is asking for the blood to be drawn, does the client consent? DID THE CLIENT CONSENT TO THE BLOOD DRAW? YES. If the client is arrested, a police officer asks for blood under our Implied Consent statute, and the client consents, then Texas Transportation Code § 724.017 governs who may draw the blood. Section 724.017 states: (a) Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter. The blood specimen must be taken in a sanitary place. (b) The person who takes the blood specimen under this chapter, ot the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures. This subsection does not relieve a person from liability for negligence in the taking of a blood specimen, (©) In this section, "qualified technician" does not inelude emergency medical services personnel.* Additionally, Cavazos requires any phlebotomist that draws the blood, without a warrant and pursuant to 724.017, must be proven up as a “qualified technician” since @ phlebotomist is not specifically included in the job titles defined under 724,017 It is the elient’s duty, however, to allege the statutory violation before the burden shifts to the State to combat a Section 38.23 suppression issue. It's important to note that emergency medical services personne! (EMS/EMTiambulance driver/paramedic) may not draw blood based on their title alone» However, an EMT or paramedic may be proven up as a qualified technician based ‘on training, education, and skills." Additionally, beginning September 1, 2013, House Bill 434 will allow a licensed or certified EMT ot paramedic to draw blood under 724.017 so long as they comply with specifications laid out in 724.017(0) as follows: (©) A licensed or certified emergency medical technician-intermediate or emergency medical technivian-paramedic may take a blood specimen only if authorized by the medical director for the entity that employs the technician-intermediate or technician-paramedic, The specimen must be taken according to a protocol developed by the medical director that provides direction to the technician-intermediate or —_technician-paramedic for the taking of a blood specimen at the request or order of a peace officer. In this subsection, "medical director” means a livensed physician who supervises the provision of emergency medical services by public or private entity that (1) provides those services; and (2) employs one or more licensed or certified emergency medical technician- intermediates or emergency medical technician-paramedies coco @) continveo :: DRAWING THE BLOOD TEST FROM A DWI CASE (©) A licensed or certified emergency medical technician-intermediate or _emergeney medical technician-paramedic may take a blood specimen only if authorized by the medical director for the entity that employs the technician-intermediate ‘or technician-paramedic, The specimen must be taken according to a protocol developed by the medical director that provides direction to the technician-intermediate or —_technician-paramedic for the taking of a blood specimen at the request or order of a peace officer. In this subsection, "medical director" means a licensed physician who supervises the provision of emergency medical services by a public or private entity that: (1) provides those services; and (2) employs one or more licensed or certified emergency ‘medical technician- intermediates or emergency medical technician-paramedies (c-1) A protocol developed under Subsection (c) may address whether an emergency medical technician-intermediate or emergency medical technician-paramedic engaged in the performance of official duties is entitled to refuse to: (1) go to the location of a person from whom a peace officer requests or orders the taking ofa blood specimen solely for the purpose of taking that blood specimen; (2) take a blood specimen ifthe technician-intermediate ‘or technician-paramedic reasonably believes that ‘complying with the peace officer's request or order to take the specimen would impair or interfere with the provision of patient care or the performance of other official duties; or (3) provide the equipment or supplies necessary to take ‘a blood specimen, (c-2) If a licensed or certified cmergeney medical technician-intermediate or emergency medical technician-paramedic takes a blood specimen at the request or order of a peace officer, a peace officer must: (1) observe the taking of the specimen; and (2) immediately take possession of the specimen for purposes of establishing @ chain of custody. @ wesc Of course, as in any other search, consent, assuming it is truly voluntary, is always going to trump your defense challenges to the blood draw. Remember though, the State ‘must prove voluntary consent by clear and convincing evidence or the results may be suppressed. Voluntariness ‘must be examined before any exigent circumstances to the ‘warrant requirement. NO. If the client is under arrest, police request a blood sample, and the client does not consent, then the blood may only be drawn pursuant to a warrant absent exigent circumstances. DID THE POLICE OBTAIN A BLOOD SEARCH WARRANT? YES. Just because your client declined a voluntary blood draw and the police obtained a sample with a search warrant doesn't mean that the state will automatically get to use that evidence, The Fourth Amendment protccls your client against all unreasonable search and seizures, and any warrant must be supported by probable cause. In analyzing a warrant, the lawyer is limited to the “four comers” of the document.“ The warrant should specifically state what is to be taken, by what means, and by whom." Analyze every warrant with strict and meticulous scrutiny, Make sure the dates, times, and signatures are all in order. Read the reasonable suspicion for the stop and the probable cause for the search, If you recognize any statements as intentional deception or reckless disregard for the facts, you will need to request a Franks hearing on the validity of the ‘warrant, Before any Franks hearing, however, make sure you have read and understand necessary case law. Section 724.017 dictates who may draw blood under the ‘Transportation Code, but it is not an exclusive list. That being said, a judge could allow anyone to draw the blood, however, judges, like police, are constrained by the Fourth ‘Amendment and the terms of a warrant must be reasonable. ‘A Judge could allow an EMT or phiebotomist to draw the blood by specifically including those job titles in the warrant, so long as itis reasonable under the circumstances. That being said, even if a warrant appears sufficient on its face, examine whether the warrant was reasonably executed? Under what conditions was the blood drawn? Did the police use force against your client? Especially in ‘Texas, there are basic standards to be met before the results of your client’s blood draw can be admitted into evidence. ‘The Court of Criminal Appeals has held that the drawer of the blood must inquire into the medical history of the client before piercing the skin.»* Additionally, the police may not use excessive force by assaulting the client in an effort to hold him down for a blood draw. DID THE POLICE DRAW BLOOD WITHOUT A WARRANT? YES. On April 17, 2013, the United States Supreme Court handed down Missouri vs. McNeely holding the government's general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing ‘a warrant impractical in a particular case." The Court did not define what factors would establish exigency generally, but left that issue open for a case-by-case analysis based on the “totality of the circumstances." Post-MeNeely, the State is now scrambling to prove-up exigency and fight the suppression of involuntary, ‘mandatory blood draws. Here, any argument made by a prosecutor regarding the inconvenience or impracticability of obtaining a search warrant prior to an involuntary blood draw should be attacked with Clay." In Clay, the arresting officer swore to a blood warrant probable cause affidavit ‘over the telephone and then faxed the signed affidavit to the Judge." Arguably, it doesn't get much easier to obtain a blood search warrant. Regardless of technology, however, if the State is arguing that a warrantless blood draw was done pursuant to the exigency exception to the ‘warrant requirement, you must know your adversary and the resources available to each county prior to litigating the issue, It is the State’s burden to prove exigency in a particular case after Defendant proves, or the State stipulates, that a warrantless blood draw occurred.** In doing so, you should anticipate that the arresting officer will testify he could not obtain a warrant in a reasonable amount of time. To effectively rebut this testimony, you will need to present evidence to the contrary. While every case is different, our esteemed colleague and Dean of the National College for DUI Defense, Troy McKinney, has that you should know and be able to prove the following, at a minimum, if you want any chance of overcoming an adverse ruling: 1. How many prose: relevant time frame; Kors were on duty during the 2. How many magistrates were on duty during the relevant time frame and their locations relative to your officer; 3. Your minimum and maximum relevant time frames, Minimum relevant time frame being from the time of arrest to the time of the blood draw, and maximum relevant time frame being from the time of the arrest to the time of delay or circumstance which justifies the alleged exigency (which may require an expert); 4. Whether your specific officer has ever obtained a ‘warrant in prior cases; 5. What, if any, forms were available for the warrant affidavit; 6. Whether there were other experienced officers on duty and available who were available to obtain warrant, and 7. Evidence of how long it would have taken to obtain ‘a warrant based upon how long it typically takes in other cases, Under MeNeely, if warrant can be objectively reasonably obtained between the time of arrest and the time of the involuntary blood draw, then no exigency exists." If, on the other hand, the state alleges circumstances surrounding the arrest of your client created an exigent need to draw blood without a warrant, you will need to be able to rebut the argument and show Why your specific facts do not rise to the level of exigency. Notwithstanding, if the State manages to get around McNeely by proving-up cxigent circumstances, then remember, at least for now, that any phlebotomist must be qualified as a “qualified technician” in order for the results of the blood test to be admitted into evidence. An EMT/paramedic may not draw blood on their title alone until September 1, 2013; and even then, the draw must occur in a sanitary place." coco @) continveo :: DRAWING THE BLOOD TEST FROM A DWI CASE WHAT TYPE OF RECORD IS THE STATE RELYING UPON? Knowing what type of records the State intends to introduce orrely on will dictate the course of action you should take in evaluating the strengths and weaknesses of the State’s case, Most DWI cases involve a blood sample that is analyzed at a police or State-owned forensic laboratory utilizing gas chromatography. The reports produced in such testing are called chromatograms, and they are used by State witnesses in an attempt to prove-up the validity of the analysis and the purported test results from your client's blood, Altematively, if your prosecutor attempts to introduce a medical record, make sure the State has properly complied with Texas Rules of Evidence 803(6), the business record exception, and 902(10), requiring an affidavit or custodian of record, Additionally, if your client’s case involves a hospital enzymatic assay test, be sure the prosecutor produces a witness that can satisfy the first prong of Kelly: ive, “the underlying scientific theory must be valid.” In every case, whether by State lab or by hospital test, before a prosecutor reveals the results of your elient’s test, or secks to offer a chromatogram or any opinion of the result of the blood test, make sure the state has complied with Bullcoming and that the actual analyst that prepared the sample for testing is available for confrontation and cross-examination..** Never acquiesce or allow a prosecutor to substitute testimony from anyone other than the actual analyst that prepared the client's sample for testing. The procedures for proper site preparation, execution of the blood draw, preparation for analysis, maintenance of the instrument/machine, analysis of the sample, and interpretation of the results are each complex areas of attack, and are not addressed in this Article. Without even analyzing how the blood was drawn and tested, an informed trial attorney may sometimes attack and suppress a client’s blood test long before a jury is present. Texas blood tests are ripe for such challenges. The key is in knowing how to systematically navigate through the quickly developing body of law. AS you evaluate each case and ask the few simple questions highlighted in this article, remember to maintain your course and keep the Judge up to speed and on course as well, @ wesc Let the prosecutors know that any attempt to redirect your efforts will be met with knowledge of the law and firm insistence on justice, fairness, and the presumption of Missouri v. MeNeely, 569 US. Iatpww:tdeaa comsjouralivhatdo-sbout-missoui-vsmeneely = _hitp: www myfoxhouston convstory’22859770/2013/07/1 133 $.C1 1552, 1555 (2013). yeseround-no-refisal The fist ine of Texas Statutory Waming DIC-24 specifically states that the client i “under atest for an aes arising out oF ‘ets alleged to have been commited while you were operating ‘motor vehicle in publi place, or watercraft while infoneaed or ti offense arising under Section 106,041, Alcoholic Beverage Co.” + TEX. TRANSP. CODE § 724.019. si TEX. TRANSP, CODE § 724.062, TEX. TRANSP. CODE § 724.0196). See Thiessen, M, Falvely Elevated Bthanol Results Using Hospital Enzymatic Assay Blood Testing. TCDLA Voie forthe Defense, Vol 41, No, 3 (April 2012), TEX. TRANSP. CODE § 724.017 (West 2011), Cavazos v, State, 969 $.W 24 454, 456-57 (Tex. App. — Corpus Christ 1998, pet rePd); TEX, TRANSP. CODE § 724.017(8), see also Cordero v, State, 2009 WL. 3251504 (Tex App. Paso Oct 7, 2009). i State ¥, Robinson, 934 SW.34.716 (Tex. Crt, App. 2011); TEX. CODE OF CRIM, PROC. $38.28 (West 2011) si See Krause v. State, 368 S.W.34 863 (Tex. App.—_Houston [14th Dist | 2012\EMT}; Sate v. Laird, 38 S.W.34 707 (Tex. Crim, App. 2000}(peramedic) (emphasis add) si Krause» Sate, 2013 WL 1890731 (Tex. Crm. App. 2013) (reversing Cour of Appeals and allowing EMT to be proven up 85 qualified technician) sv House Bll 434 (Effective September 1, 2013) hpww legis state ustlodoce88R ilexvhim/HB00834S him © Slate x Ibarra, 953 S.W.2d 282,243 (Tex. Crim, App. 1997). citing Paprskar Sate, 884 S,W.24 731, 737 (Tex: Crim, App. 1972), ssi Huger» Sate, 883 SW 2d 591, $93 (Tex. Crim. App. 1992) ‘Keen v Sate, 626 SW 24309, 312 (Tex. Crim. App. 1981); Davis v. State, 27 SW. 664, 667 (Tex App Waco 2000, pet ref. Continued on Page 28 —NO ere ee YES Ne} commer ed ees Tex. Transp. Code 724.019; 724.062 YES yes AULA See eer R Roe een OCR) (prove up phlebotomist) ULL N) (Tex. Crim. App.2011) our duty fo raise violation) ( O = Missouri v. McNeely, 569 U.S. __ ; 133 S.Ct. 1552 (2013) * 4th Amendment Bre Se ey Bue Geo) Se SU ed aed See aT) eer SA SEAN or a) Sea) ery Be eee) ORO RULE Ler ery Lome sir) SRA SR EES RAR Rove eR ce tc (Tex. App. Houston 14th Dist. 2012)(ENT) cos Durrett v. State, 36 §.W.34 205, 208 (Tex.App Houston [14th Dist] 2001, no pet) (Stae's Case) Ce ee aa me) B. Medical Record —>803(6) Business Record Exception ‘902(10) Affidavit Rule or Custodian of Records pen) EZ Ch tg Prem em Ne Owned & Operated ADT INSTALLED TODAY fel eee ray Jn, Tati rles aut kagy Alcohol Tales Call Shannon or Shaun CMU) 713.228.3969 lel Ba Le Lal eke Tex. Crim. App. (Tex. App —Hows An inheritance nobody wants. licole DeBorde, Pat McCann, Do You Allow Mom (or other family) to Attend Client Meetings? Of course, the answer is it depends. It can definitely be helpful for family members to hear about general matters like courtroom procedure, how long various, steps will take, what you expect to happen and when and what you need generally from your client. Often, the client will be seeking the opinion of these family members, so it is better to have them accurately informed. (On the other hand, it is clearly a problem to have family members in a meeting where the client will be discussing his actions or involvement in a case when that information could later be revisited in court in the form of testimony from those same family members under cross. Often times, | choose a middle ground. | include family members (with the permission of the client, of course) in that portion of the meeting which will allow them to hear the general information about the case and expectations. | also invite them to ask any questions, and | answer the questions | can without violating a confidence or sharing information about the facts of the case. Sometimes the family members already know the details of the case either because they are witnesses or the client has told them details prior to my engagement in the case. In these instances, | sometimes allow the client's family to remain for some fact discussion. Usually though, after general discussion has been had and general questions have been answered, | excuse the family members to the lobby and continue the meeting with the client in private to discuss the details of the case. Remind the family during the general information session that, attorney-client privilege protects the client and will be destroyed if they are present while you discuss facts and circumstances surrounding your representation. Explain that the privilege exists to protect the client as well as the family (i.e. family could be subpoenaed and forced to testify against the client should the client, discuss details with them). In my experience, most family members understand this concept and would not want to be forced to testify against the loved one. Also, it is important to make sure it is the client's will being done throughout the representation and not the will of an overbearing family member. | make sure to ask the client privately about matters requiring a choice during the representation. Overall, including family members in meetings with the lient can cut down on misunderstandings and help the family appreciate the hard work you are doing for their loved one. But, keep in mind; there are some things that must be discussed with the client in private even when the family wants to participate in order to preserve the privilege and confidentiality of your representation, In simple terms, make sure the client's interests always come first. Remember the family wants the best for the client, that’s why they have come to see you, but they do not automatically understand that foo much involvement can be detrimental so politely explain this to them and move on. Online Marketing 101: 4 Basic Rules >The nteets ie smal own, We areal much more closely connected on the Internet than in the real world; information—positive and negative, true and faise—spreads much more widely on the Intemet than in the real world; and potential clients can find that information much more quickly on the Internet than in the real world. On the Internet (as in the real world) reputation is everything. There is no substitute for overjoyed clients. To have overjoyed clients, you must underpromise and overdeliver. When you outsource your marketing, you outsource your reputation. When you hire someone to do online marketing, beware: you hand your reputation over to him. You must keep track of and understand what he is doing for your money. There are no magic beans. Anyone who's selling you services that she can't explain to you (so that you can understand) is stealing from you. weston @) Or How Do You Deal with a Needy Client (or their Needy Family)? | stil struggle with this all the time. On the family, | will be honest that | used to not do so well, and would get, irritated at the constant calls from multiple relatives. | had a olient with a very needy family who helped me change that approach in this way: | realized through something he said that they are just frightened. We work in this business all the time. Like trauma nurses, and paramedics, we use slang and know hospital procedures that are completely alien to normal people but which we take for granted. Our client's family has to learn these terms and procedures at the worst possible time and in the worst possible circumstances -a loved one has been taken from them and piaced in jail. Our client has children, a mother, a sister, and a father, uncles, aunts, all [or at least most] of whom love him and miss him. They are trying to reassure grandchildren that "poppa is going to be home soon” when often they have no idea if that is true and fear the worst. We also take the blood for granted. My mother was an ICU and OR nurse, and | suppose | use her as the example for this because she later became a lawyer. When | was little [yes, | was litle once, a very long time ago] she took me to the hospital ER to pick up her paycheck. There was a man all covered in blood from a fight and another who appeared to be going through acute alcohol withdrawal, or the "DTS" as we used to call it, all new to my wide-eyed world. | asked her as we left how she got used to it- she told me that “if you cannot look at the blood, you cannot help". We have to look at the blood - our client's family normally does not, and is not prepared for just how badly things have tumed out for the client, the person they love. We are used to the sights of people in chains, of orange jumpsuits and bad smell from once-a-week county showers, and of people calloused to the sight of pleas, for twenty years in prison. No other sane person ever gets used to it. A litle kindness and patience, and perhaps a suggestion that the family pick one spokesperson after that first round of fearful tears, goes a long way, to be honest. | am stil earning how best to handle it, but just listening and showing a litle, we ere Do | Really Need a Website? Paddy, the Laughing Luddite and Mark, the Mad Master of techie things, on why a website matters. Paddy: | have heard of this Interweb, but why do I need a website? | am in the book", and the State Bar has my information if folks want fo call me. Also, | have a stone tablet placed strategically near the courthouse so people will see it and learn my number. What does a website do for me? Parse: The 1980s called; they want your practice back. Think of the Intemet as a parallel universe... no, on second thought, don't do that. Think of the Intemet as a vast library containing all the knowledge of the universe. Because this library contains all this, knowledge, it’s the first place people go when they're looking for answers to tquestions like "who should | hire to represent me?” and “does this lawyer have a good reputation?" and "can a cat really play a piano?" If they look for you on the Internet and don't find you, at best you might as well not exist. At best, if you don't create a presence for yourself, someone else—a disgruntled client's mother, a pissed-off complainant, that guy who shot you the bird on the Southwest Freeway—might do it for you. By creating a website you take a litfle control over what people learn when they look for you online. Paddy: Ok, so maybe young people [under fifty] do not use 4 phone book so much anymore. Isn't a website an awful lot of expense and time to set up and maintain? 7aakYou can spend as much or as litle as you want to create a presence online, from “next to nothing” to “stupid money.” If you do it right, you'll spend more time (writing content, which you do not want to leave to someone else) than money, but for the most part you can just do this once and then leave it alone. | recommend a website built on a CMS, a content-management system (I use Drupal), which allows a nontechnical person to add pages and connect them together, so that your website can grow as you have time to add to it. Packlys Well, suppose | did set up a website; won't that Just encourage my clients to email me? My clients will ‘confess on email, trust me. Plus, how do | manage all this new communication when I do not even like talking to people, let alone writing to them? 7aaé. For now, | don't think you have to worry about your olients emailing you. If TOCJ inmates get email, though, you might not want to put your email address on your website ‘Some people shopping for lawyers will email fist, but almost everyone wants to talk to the lawyer before hiring him or her. Having your email address on your website definitely attracts more emails from cranks and lookie-loos, which | would call "a bad thing.” The upside of email, though, is that you don't have to reply. Would you rather get a phone call from the guy who wants fo sue President Roosevelt for planting the transmitter in his head at Jekyll Island, or an email? Pac: My friend had a website and a listing with one of those online "search for lawyers” services - did not get a single hired case from it. After a year, he left them. How does one know what is worthwhile in terms of cost? After all, | am cheap, cheap like in those stories of misers when we were kids. 7faxks Bnd what happened to those misers in the end”? They changed theit miserly ways or died miserable, alone, and without clients, that's what happened to them. Let that be a lesson to you. That said, there are many people—nonlawyers or failed lawyers—selling much snake oil to desperate lawyers, who happily gobble it up and come back for more. Most of the Internet marketing that lawyers. spend money on is a fraud. The truth is that on the Internet content is king, Potential clients are looking for answers to questions, and the more generous you are with answers the more likely they are to see you as an authority they want to hire. Nobody can write your content but you. So once you have a website, you decide how much time you want fo spend adding content. Pactely: All right, fine, maybe | will get a website, but not one of those “smartypants” phones, uh-uh, Hearing little noises all the time when one gets a text or an email, and you can NEVER escape email, watching people texting while changing lanes, talking to the air with those little Star Trek devices in their ears, no sirree, not me. Besides, you know the NSA is listening, Thanks: (Sigh.] Baby steps. [find that life is much easier when | resign myself to the fact that the NSA is listening. Sudan anthrax White House water supply — Family - Party - Drinks = Dinner - Dancing = Prizes - Networking =Friends = Family - Party - Drinks = Dinn Dancing = Prizes - Networking - Friends - Family Drinks = Dinner = Dancing = Prizes - Ne art working - Fri = Family - Party - Drinks = inner = Dancing = Prizes - Networking oN tinks = Dini Dancing suily - Par Purl!” HCCLA Holiday Party \ 6 ~Ps = Fami - Prizes - Networ = Dinne Dancing, fily - Par December 5, 2013 Eight 5102 Washington Avenue Houston TX 77007 BE A SPONSOR! $100 (includes 10 tickets) Sign up online at www.hccla.org or remit payment to: HCCLA P.O. Box 924523 Houston 77292-4523 Contact Christina Appelt with any questions at 713.498.9649 Neel The United State Supreme Court recently held in McNeely that mere dissipation of alcohol is not an exigency permitting, a warrantless blood draw. This has put the Texas mandatory blood draw statute in questionable constitutional territory, if not made it facially meaningless, The one thing the McNeely Court made abundantly clear is that every case must be decided on a case-by-case basis: that is, there are no bright line rules for when there is an exigency. Even the facts of Schmerber may no longer present an exigency because of changes in practical and factual circumstances since it was decided. In light of the McNeely discussions, I offer the following, suggestions. Though it may technically and legally be the State's burden to show an exigency, in the real world, you had better prove (and make a factual record of) no actual exigency if' you want to win in the trial court or on appeal Ata minimum, you should address the following questions and issues for the record: [11] Hovemany prosecutors were on duty during the relevant time frame (people available to draft the warrant, keeping in mind that there are always people in the Harris County DA intake division who could and often do so); How many magistrates were on duty during the relevant time frame, and what were their locations relative to your officer (there are magistrates on duty 24/7 in Harris County); [2 ‘What are your minimum and maximum relevant time frames: Minimum relevant time frame ‘being from the time of arrest to the time of the blood draw, and maximum relevant time frame being from the time of the arrest to the time of delay or circumstance which justified the alleged exigency (which may require an expert); [38 [4] Wheter your specie ocerhas ever obtained warrant in prior eases; [5 What, if any, forms were available for the warrant affidavit, simplifying and expediting the process (the DA's office has forms they routinely use); @ wesc y Basics © by Troy McKinney ‘Whether there were other experienced officers fon duty and available who were available to obtain a warrant (there are always cops and civilians at Central Intox and many others at 1200 Travis); and, [6 Evidence of how long it would have taken to oblain @ warrant based upon how long it typically takes in other cases (this ean range from less than an hour to two to three hours). {7 ‘There will be facts and circumstances that vary from case to case, The more evidence the state has of serious intoxication, the longer the relevant time period may be: that is, the less dissipation may matter. The closer the pre-draw facts are the more exigent the circumstances may become, Getting the State to argue that the facts are close is always a good thing for our elients. Keep in mind that the State routinely draws blood several, hours (2-3 hours is routine and 4-5 hours is not unheard of), post arrest and regularly uses that evidence at trial without any serious problems. Also, keep in mind statutes that make draws within some number of hours relevant and admissible to be legislative recognitions of the reasonableness of those time periods. ‘There is lot of room to be imaginative, but whatever you do, do NOT think you can win by just holding the State to their alleged burden. It may be technically correct, but it will hardly ever be persuasive to atrial court and will matter litte to an appellate court judging the reasonableness of the trial cour's decision based on the factual record before it, Itis almost certain that the State or police officers will, state, in conclusary terms, that there was insufficient time to get a warrant under the circumstances. It wll be your job to let the real facts tell a far different story. You may get, lucky on occasion, but more often than not, you will lose in the trial court and have a bad record for a meaningful appellate decision unless you make a sufficient factual record addressing the above questions and issues. It is routine for assistant district clerks and some, though far from all, judges to demand that defense attomeys retum the juror information forms to the clerk at the conclusion of voir dire. There is, however, no legal basis for this demand, It is a practice that should have never begun, has gone on far too long, and ought to stop. Defense lawyers can and should, as Nancy Reagan precisely stated in her quest do right and follow the law, “Just Say No.” This practice began following the enactment of Article 35.29 of the Texas Code of Criminal Procedure. Since this was its genesis, it might be worth actually looking at the statute, It is amazing what one finds by actually reading the law ~ as opposed to taking someone else's interpretation oft for granted and as gospel. [tis 1 short and very clear statute. It provides: PERSONAL INFORMATION ABOUT JURORS. Information collected by the court or by a prosecuting attorney during the jury selection process about @ person who serves as a juror, including the juror's home address, home telephone number, social security number, driver's license | number, and other personal information, is confidential and may not be disclosed by the court, the prosecuting attorney, the defense counsel, or any ‘court personnel except on application by ‘party in the trial or on application by a ona fide member of the news media acting in such capacity to the court in which the person is serving or did serve as a juror. On a showing of good cause, the court shall permit disclosure of the information sought. ‘The words in this statute are simple and clear. A MCA enn First, this statute only applies to information collected PEORIA ea) information collected, obtained, or created by a defense attorney. This includes the notations and notes of ofense counsel on the juror information forms. J, nothing inthis statute permits a clerk or court to ‘der defense counsel to return the juror information forms to the clerk. Think otherwise? Find any such me ny Fourth, any and all notes and markings that defense EIon eee een eed TRUS Oem CRD SO aT Ce Or ac defense lawyer would or should voluntarily turn over any oftheir other work product. There is no reason this, ROMEO crs Ae Re oe oe Te ee retain any ofthe information contained on the juror CeO oer) Cee Coe oc for defense counsel not to disclose the information => and nothing more. Disclosure of information RCO Cee AC RUC LC agreements regarding offense reports, but also by Tee cn nes Seventh, some have suggested that there may be a eer eee a oy counsel from disclosing the information contained in the juror information forms. This is nonsensical. The statute already requires confidentiality and there are already plenty of judicial and ethical remedies against Cerner Ninth, the belief by some that defense counsel cannot be See Ae ke as Cen Eee es suggests that criminal defense lawyers are somehow inferior NTE ru ee LL quirements and orders on a regular bass. Lawyers are Cee eee dey UL Coca rs typeof aw they practice, have certain legal obligations Pe nea] There are, however, several dozen cases where defense lawyers have acquiesced in the illegal order to return the juror information forms to the clerk and thereafter sought to regain the information contained in them. These cases have uniformly held that under such circumstances, counsel must show good cause under the terms of the statute. In these cases, defense counsel brought the problems on themselves by not knowing and insisting, even at the risk of an illegal contempt, that article 35.29 provides no authority for a court or clerk to order defense counsel to return the juror information forms at the conclusion of voir dire or otherwise. The time has come for an end to the unauthorized and illegal (ultra vires) practice of ordering and requiring defense lawyers to surrender their copy of the juror information forms, along with their work product, Criminal defense lawyers must stand up for the law (it is quite simple and clear), follow it, and insist that judges and clerks do so as well. Judges and District Clerks must also follow the law as written ~ as they, too, are required to do. a a ue UR CUR aT at ed Check out the Facebook Page Omelet) oR ey aT ecem malo Le-T Te LEV ParLae mLOon NY CoL Find us on facebook FULL PAGE [INSIDE] :: $700/ISSUE :: $2,520/YEAR INSIDE FRONT COVER :: S8OO/ISSUE :: $2,880/YEAR INSIDE BACK COVER :: $750/ISSUE : $2,700/YEAR BACK COVER :: $800/ISSUE :: $2,880/YEAR 2/3 PAGE :: $600/ISSUE :: $2,160/YEAR 1/2 PAGE :: $500/ISSUE : $1,B00/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 contnbutions, contact JoAnne Musick at 832-448-1148. To place an ad contact Earl Musick 832-448-1148 / ea@musicklawoffice.com. 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