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the f

e en er

A Publication of Harris County Criminal lawyers Association October / November 2000

HCClA Annual Meeting at Tony's Banquet Room

New officers and directors announced Inside: DA Candidates Square Off Charlton on
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and directors
Inside: DA Candidates
Square Off
Charlton on


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October / November 2000


From the President



Through a New Pair ofEyes



Daubert, Kelly and Their Progency












DA Candidates Square Off














Fed Square































HCCLA Scholarship







Richard Frankoff


Wayne Hill


Troy McKinney


Cindy Henley


Emily Munoz


Danny Easterling


Mary Acosta Lott Brooks Winston Cochran Rosa A. £liades Rob Ficlanan Ron Hayes David Jones Jay Karahan David Kiatta David Mitcham Tyrone C. Moncriffe Anthony Osso Paul Sr. John Grant Scheiner Norm Silverman Clyde Willian1s



C. Anthony Friliollx Stuart Kinard George Luquette Marvin O. Teague Dick DeGuerin W. B. House. J r. David R. Bires Woody Densen Will Gray Edward A. Mallett Carolyn Garcia Jack B. Zimmerman Clyde Williams Robert Pel ton Candelario Elizondo Allen C. Isbell David Mitcham Jim E. Lavine Rick Brass Mary E. Conn Kent A. Schaffer Dan Cogdell Jim Skelton George J. Pam ham Garland D. Melnnis Robert A. Moen Ll oyd W. Oliver

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This issue of our magazine has a new name and masthead. We believe this reflects our organization's new energy, direction and

confidence . I first noticed this newness at our annual meeting and banquet. On June 22 we met at Tony's banquet room. Those that were there will remember that night's the tension and excitement. It was the night of Graham's execution and the day after the loss of a comrade, Donald Davis. Anthony Osso remembered Donald, and I praised our members who

In the criminal justice system . And I accepted the honor of leading the next term.

I sensed a feeling within us. Perhaps it is

not new, but rather one not experienced in

a long time. I sensed "self-respect." For tOO

long the criminal defense anorney had been pushed outside of the system. A, we have been isolated and secluded from the criminal justice process, we have lost our beliefin our ability to affect that process, to make a difference for our clients and the community. That night I sensed our recognition that we are important and can make a significant and

meaningful contribution to criminal justice. We remembered that we are part of the system, a necessary part of the system required to make it work properly and fairly. Whether this feeling of self-respect is new or just renewed after being lost makes no difference. What matters is that we now take this feeling and turn it into empowerment. I look forward to being president this coming year, to being involved with this organization, the board, each member and this feeling of "self respect." Thank you for the opportunity.

that night, rather than dining with us, were working on Graham's defense. The evening had other memorial events. We had fine speakers, from our own Stuart Kinard recounting the stories of HCClA's formation to the articulate and inspiring Stephen Bright damning the Texas death penalty. We presented honorary life membership on Jay Burne[(, attorney of the year to Mike Charlton and, for the first time, the outstanding member awatd to Rosa Eliades. Also we initiated the Torch of Liberty Award to be presented annually to a nonattorney who has made a substantial contribution to the criminal justice system. This year's recipient was Thom Marshall for his outstanding articles In the Houston Chron icle. And also for the first time we awarded a five hundred dollar educational scholarship to Harris County probation department to be given to a worthy probationer; this issue contains a thank-you note from this year's recipient. Our hope is that each year we can increase the slim awarded. Perhaps it was at the banquet that I first felt this newness, or maybe a JUSt a renewal. Danny had JUSt finished an excellent administration reestablishing HCClA as a significant influence



October / November 2000


Trial consultants help with more than seating juries


When the subject of Trial Consultants comes up, it is not unusual for images of high profile, "spare-no-expense" criminal trials to emerge. In fact, the only time we hear anything about the field of trial consulting is when the media has latched Onto yet another sensational trial in which every imaginable resource is utilized to win the case. Trial Consultants have been variously characterized as equal parts magician, manipulator and mind reader. They have also been portrayed as an expensive trial tool ava ilable only to the very wealthy, well-connected defendants, or to those whose cases guarantee invaluable publicity and photo opportunities. The consequences of these misperceptions has been that few lawyers even consider the contribution that a Trial Consultant can make to their case though the insight a consultant could bring could mean the difference between a staggering defeat and a stunning victory. My goal is to address these faulty perceptions surrounding the field of trial consu Iti ng and Trial Consul tan ts, provide some information about the types of cases in which you may consider using their services, what to look for in a Trial Consultant and, finally, the cOStS associated with including a Trial Consultant in your trial team.

Magician, manipulator and mind reader. None of these adjectives accurately describes a Trial Consultant; however, these images have been perpetuated by those with little understanding of the field and even by some Trial Consultants, themselves. Rather, they are ordinary human beings with some extraordinary talents, which many are eager to share. Trial Consultants come from many backgrounds. Some are lawyers, some are psychologists, some are teachers, actors or sales & marketing experts, among other professionals. While it may seem somewhat strange that Trial Consultants come from so many different environments, once you fully understand the field ofTrial Consulting, you may not be so surprised. Since Trial Consultants possess a wide variety of training, talent and experienl-e, the contribution Trial Consultants make to a

case may be limited only by the imagination of the consultant and by the amount of confidence a lawyer places in the consul tant.

Trial Consultants are most widely known for their employment as "jury pickers." While most do assist with the seating of a jury, there is a myriad of other things that some can do to assist in developing a winning case. Limiting their role in the preparation and presentation of your case to jury selection would deny a lawyer the opportunity to gain invaluable insights into his case, important jury issues and ideas for the most effective and dynamic presentation imaginable. Lawyers who employ Trial Consultants to merely assist with the seating of a jury are seriously short-changing themselves. In fact, the work they can do leading up to jury selection will only enhance their ability to select the most favorable jury as well as heighten the effect the case presentation will have on that particular jury.

While some Trial Consultants focus on one or twO sub-specialities, such as pretrial research and jury selection, others offer a wider range of services. These services may include the development of case themes, witness preparation, prerri;:Ji research, research analysis, attitude surveys, juror profiles, preparation ofjuror questionnaires, preparation of voir dire questions, voir dire training, challenge for cause techniques, development of demonstrative aids, presentation strategies, analysis of juror questionnaires, jury selection, shadow juries, trial monitoring and analysis, opening statements and closing arguments, witness examination techniques, communication strategies, jury monitoring and analysis and post-verdict juror interviews and analysis.

Upon first glance, it may appear that the services offered by Trial Consultants are routinely done by lawyers every single day in their preparation of a case for trial, however, there are several critical differences that make a Trial Consultant's contribution unique and invaluable. Most important of these differences is that a Trial Consultant has the abiliry to see the case through the eyes of jurors, while lawyers concentrate on the legal issues of the case. Understanding

jurors and meeting them on their own emotional territory is essential to their listening to, relating to, and accepting a lawyer's point of view. Trial Consultants usually come from a background in which empathy for others is key and can assist a lawyer to understand the thoughts and feelings that will absolutely make the difference in the way jurors hear and respond to his case. Additionally, Trial Consultants may provide a favorable means of presenting unfavorable information in a way that is acceptable to a jury. Utilizing their unique people skills, they can assist in developing a juror friendly case presentation before voir dire and upon examination of the seared jury, can help to tailor the presentation to those who will decide the case.

The time to analyze a case, fix its problems and develop a dynamic, attractive presentation is well in advance of trial. Trial Consultants can help to tackle these issues in a variety of ways. While I am not suggesting that each and every case justifies conducting pretrial research, it can provide priceless information in some very troublesome cases. Best known as "mock trials" or "focus groups", pretrial research can provide a dress rehearsal of the trial and illuminate all ofthe problem areas of a case, as well as help to predict the reaction of the actual jury to specific witnesses, issues of the case and even range of punishment. This provides the unique opportunity to fix the problems that were illuminated during the research , help witnesses to give more effective, credible testimony, decide how ro present some issues and recognize those issues rhat should be kept out of the trial. Another benefit of pretrial research is that the results provide clues to the types of jurors that tend to be receptive to the case and those who are resistant, as well as the issues that must be addressed during voir dire.

A Trial Consultant experienced In communication strategies, sales and marketing or psychology is a tremendous asset in helping identify voir dire issues. The consultant will help effectively frame questions to identify unfavorable jurors, encourage discussion among jurors and subtly educate them about the facts of the


case from the lawyer's pe rspective. The Trial Consultant will also work with a lawyer on developi ng effective voir dire techniques that will help to establish a Strong rapport with tne jurors and gain their trust. While the questions asked are important, the word choices the lawye. makes will make all the difference in whether the lju('stion is effective and delivers the desired results or nO(. A Trial Consultant who is sensitive to word choices and the framing of thoughts and ideas will assi st in ca refully crafting these important questions.

More and more, judges and lawyers alike a rc recognizing the value of juror questionnaire s. Not only do the se instruments save valuable time, they provide jurors with the opportunity to answer

sensitive questions with our having

in front of strangers. This makes it much more likely that jurors will answer critical questions. In addition , the juror questionnaire allows lawyers and judges ro identify potential challenges for ca use without the juror airing these issues in front of the rest of the panel , and possibly causing an epid e mic of like answers. A good questionn a ire is as much a work of art as it is a sci e ntific instrument. The questionnaire should include very few background

questions , quest ions that will help ro identifY challenges for cause, a nd questions that give insight into the personality of the juror. Frankly, some people don't understand the value of the "personality" questions, and often belittle them, however, th e answe rs ro th ese questions can tell an experienced, critical reader what the juror likes and dislikes, what he values, what she abhors, how he best learns and remembers and volumes of other important information that will provide insight into jurors. The key is ro have someon e who can an alyze this information and incorporate it inro voir dire and the presentation of the case.

Additionally, it is importa nt ro have someone

who can explain the importance of some of the questions considered "frivolous" , irrelevant or intrusive by opposing coun sel or the Court so that the lawyer is able ro effectively defend or justifY the use of those questions in the questionnaire.

ro do so

A defendant never has ro take the witness stand. While that is not new information

ro anyone re ading

that if their client will not testifY, there is no

need for any rype of witness preparation . Other lawyers, if they have decided that th e ir client will testifY, believe they can determine ifhe will be a "credible" witness based upon their meetings before trial. Still other lawyers overlook the importance of peripheral players and do not recognize the need to prepare them for trial. Nothing can be further from the truth in any of these

settings . In the first situation, if a defendant will not take the stand, especially if he will not take the stand, his demeanor will come under tremendous scrutiny by his jury. No matter what jurors say during voir dire, th e re is an underlying belief that if there were nothing to hide, he would testifY. Since they won't get ro hear from him , they will be watching him-closely. They will watch him in court while others are testifYing. They

will watch him out in the hallway.

will watch him as he pours himself a glass of water. They will watch him as he sits alone at the defense table. They will watch him as he rocks back and forth in his chair. They will watch him as he writes notes . They will see everything and they will draw their own conclusions about their perception of his behavior and share those conclusions with their fellow jurors during deliberations. Because they can't hear from him, all they can do is watch and fill in the blanks.

Witness preparation, or trial preparation, including guid ance about what to wear and what not ro wear, when ro stand and for whom, is essential for this person.

this, many lawyers assume

Th ey

The second instance is when a lawyer

believes he can assess the effectiveness of a witness by discussions outside of the courtroom, which usually proves ro be a very

dangerous ass umption. While lawyers

their lives insid e a courtroom , most witnesses

have no such experience. They often don't know what ro exp ect, how to answe r, when to answer and when to be quiet. They don't know about the concept of "opening the door." Quite often , characteristi cs that are praiseworthy in "real life" are detrimental on the witn ess stand . We have been brought up to be cooperative and hel pful. It is

sp end

natural to want to give more information

are supposed ro expand

upon our answers in order to make ourselves unders tood . Unfortunately, it is also human nature to answer a question before it has been

asked completely, or

question and, instead answer the question we THINK was asked . How can a novice witness know that this can be disastrous? A Trial Consultant who understands a witness's

fail to li s ten to the

than wa s asked. We

circumstances, experiences, expectations and beliefs ca n help the witness become comfortable with the process, know what to expect and testifY accurately and credibly.

Peripheral players are often the most overlooked group of people when it comes to witness preparation. It is often assumed that if a person is not a parry involved in the case , either as the defendant or a witness, th at person has no need for witness preparation . Often, they are the most in need of guidance and preparation. While a lawyer's attention may not be on these people , I promise that they will not go unnoticed by the jurors. Wives, parents and friends all say something about the accused by their mere presence, lack of presence and their demeanor. For instance, displays of anger from these well-meaning supporters often works against the accused. Any emotional outburst is often perceived by jurors as an attempt at manipulatioll, one they will naturally resist. Inappropriate clothing, jewelry or make up provides the opportunity for jurors to make assumptions about the accused and those with whom he associates. Jurors also closely attend to the interaction between these peripheral players and the accused, believing this provides clu es about the person on trial. These people are often not prepared for tri a l, and while their intent is to support the accused, th ey may not know what is helpful and what is nor. Including them in witness preparation sessions can easily solve this problem. By


into a tremendous asset.

so , you ca n turn a potential problem

It is widely assumed that the use of Trial Consultants is only practical in certain,

I absolutely agree. But what a re "special?" If you ask a

person accused of a crime, he will tell you

"special" cases. kinds of cases


that his case fits that description . Cases that have anracted a great deal of public attention would certainly qualify. So would those cases that involve sensitive issues, or those rhat have a high degree ofcomplexiry. A "special"

case may al so include tho se in which a lawye r

is inrerested in developing his presentarion

sryle, using new techniques and fine-tuning his understanding ofand rapport with jurors. The problem is rhat quire ofren, whar seems

a rourine case to a lawyer proves to be far

mote noreworthy, sensirive or complex rhan the lawyer may have anricipated. It doesn't marter if rhe issues are everyday marrers ro

the lawyer. If the jury sees rhings differently,

is rroubl ed by the issues, or if they JUSt

understand, the case is in big trouble from the ourser. Often, a different pair of eyes, ears, and way of thinking can help to identify areas of concern that may have been taken for granted or overlooked and help you to develop a juror-friendly presentation. The point is there is no such thing as a perfect case. There are always problems. There are always issues that can be potentially disastrous in trial. There are always witness problems. And there are always ways to overcome these difficulties. In large cases and small, a Trial Consultant who specializes in pretrial preparation can help recognize the areas of concern and correct them before the



Not tOO long ago, there were relatively few Trial Consultants in the United States. Happily, the field has grown and continues to grow by leaps and bounds. The good news is that this allows more lawyers to u se Trial Consul rants and it allows lawyers the opportuniry to find the Trial Consultant who best fits his unique needs and personal style. It is important that in choosing a Trial Consultant, the lawyer find one wirh whom he has a good rapport, one who communicates effectively and freely, one with whom he can build a bond of trust, and one who views things differently than he does. After all, the grearest asset a Tri al Con s ultant can bring to a case is a different point of view.

consultant to talk abour what he or she can offer to assist in the case. Be certain that the consultant is addressing the unique elements of the particular case and not trying to sell a standard package . Not all cases require, nor justify the expense of conducting mock trials. Pay careful attention to the way the consultant presents his or her idea s . Is that person enthusiastic, energetic, imaginative? Do you feel thar person can offer constructive opinions or do you sense that he or she would rather tell you what you wanr to hear) There are no tWO Trial Consultants who have the same methods and ideology. It is important that the one you choose communicates his or hers to you often and thar you are comfortable with those methods and ideologies, also. Additionally, I strongly recommend using one Trial Consultant rhroughout the

Since there are no

rwo with identical methods and ideologies, what works for one may not work for another. Trying to combine twO very different approaches can create confusion, redundant work and a case that frankly seems uneven and patched tOgether. Add itionally, a Trial Consultant who helps develop case themes, prepare witnesses and conduct

pretrial research will have prod uced certain

results, however, another Trial Consultant employed solely for jury selecrion may be helping seat individuals whose preferences and demeanor may not match the case as







rh e


Having outlined some of the assistance Trial Consultants can provide in helping to

prepare a case for trial

in which a Trial Consultant can provide a wide variety of assistance, I will address

possibly the most pressing concern lawyers have about Trial Consultants. Trial Consultants are a high-priced luxury and

way beyond the financial resources of most clients. I won't lie to you. AJI of those things are true. There are certainly some Trial

pride rhem selves on their

tremendous fees. I don't doubr they are worth the price . But for every Trial Consultant who relishes the distincrion that comes with being solely available to sociery's elite, there are many more who live to help others, regardless of their financial or social status, who live to practice their art, who simply love what they do and want to do it as much as possible. Some negotiate, some volunteer, som e JUSt can't say "no."

Consultants who

and the types of cases

Don't let assumptions about what YOLl think a Trial Consultant can offer, what kinds of cases would benefJt from the input of a Trial Consultant or prohibitive COStS stOp you from seeking the hel p of a Trial Consultanr. Look around. Explore the possibilities. Talk to Trial Consultants. It never hurts to ask, and you m ay be very pleasantly surprised .

preparation of your case.

ay be very pleasantly surprised . preparation of your case. THE DEFENDER· 5 Another im portant


Another im portant consideration when choosing a Trial Consultant is what will be expected from that person. A~k the

Ocwber / November 2000


What do they mean and do they make a difference?


This paper 's purpose is ro layout the oudine of an a:.alytical framework for Tex.R . Evid. 702 starring with Kelly v. State,

and Daubert v. Merrill Dow, and ro try ro

offer some insight inro what they really mean

and what avenues ar e

in (he coming months. This paper is divided inro rwo parts: the first is an explication of (he theory and standards of Rule 702, while the second lists its application In vanous experr wirness conrexts.

likely ro be explored

The first case ro challenge the accepted wisdom of expert tes(imony under Tex.R.Evid. 702 was Kelly v. State, 824 S.W2d 568 (Tex.Crim.App.- 1992). There Judge Campbell noted that the long standing

Frye te s t , (Frye v. United States, 293 F. 1013

(D.C. Cir. 1923) and reasoned that Frye had not survived the adoption of Tex.Cr.Evid. 702. He furrher stated that the touchsrone of any analysis of rule 702 was relevance:

We have recognized before that the "threshold determination" for a trial courr ro make rega rding the admission of expert testimony is whether that testimony will help (he (rier of fact understand the evidence or determine a fact in issue. (citation omitted). Thus, in a case such as this - where the trial court was faced with an offer of expert

testimony on a sc ientific ropic unfamiliar ro

the trial court's first task is to

determine whether the testimony is suHicicnrly reliable and relevant to help the jury in reach accurate results . "Unreliable. scientific evidence simply will not assist the jury to understand the evidence or accurately determine a fact in issue; such ev idence obfuscates rather than leads to an inrelligent evaluation of the facts. (citation omitted).

lay jurors -

If the trial judge determines that the proffered expert testimony is reliable (and (hus probative and relevant), then she must next determine whether, in balance, that

testimony might nevertheless be unhelpful to the trier of fact for other reasons.

The Courr then went on to set out the usual analysis under Tex.Cr.Evid . 403. Judge Campbell concluded by stating that Frye was no longer a part of a Rule 702 analysis.

Under Kelly, three criteria must be nlet for evidence derived from a scientific theory ro be considered reliable : (l) the underlying scientific theory must be val id ; (2) the technique applying the (heory must be valid; and (3) the technique must have been properly applied on th e occasion in question . All three criteria must be proven to the trial court, in a hearing outside the jury's presence, before the evidence may be admitted. I Factors that could affect a trial court'S determination include but are not limi(ed to (I) the extenr ro which the underlying scienrific theory and technique are accepted as valid by the relevanr scientific communiry, if such a community can be ascertained; (2) the qualifications of the expert testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court and (7) the experience and skill of the person who applied the technique on the occasion in question. The proponent of the evidence must establish its reliability by clear and convincing evidence. It should be noted that Kelly, by its own terms, is limited to novel scientific evidence.

Eighteen months after Kelly, the Supreme

Court decided Daubert v. Merrell Dow, 509

U.S. 579, Il3 S.Ct. 2786 (1993) and reached a very similar result. Frye was held not ro have survived the adoption of Rule

702 . Further, Rule 702's

the expert evidence, "assist the trier of fact ro understand the evidence or determine a fact in issue " is a condition that goes primarily to the iss ue of relevance. In that sense, the expert testimony mu s t be

requirement 2 that

sufficiently tied to the facts of the case as to aid the jury in resolving a factual dispute .

The consideration has been a ptly described by Judge Becker as one of " fit". "Fit is not always obvious, and scientiflc validity for one purpose is not necessarily scientific validity for other unrelated

Rule 702's "helpfulness"


standard requires a valid scientific connection ro the pertinent inquiry as a precondition to admissibility.

The Courr posited a number of criteria to determine whether the theory or technique will be of the requisite assistance. One is wheth er the theory or technique can be tested; can others in the field test (he hypotheses and determine if they can be falsified? Another consideration is whether the theory or technique has been subject to peer review and publication.

Publication (w hich is but on e element of peer revi ew) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, (citation omirred), and in some instances well-grounded but innovative theories will not have been published But submission to the scrutiny of the scientific community is a component of good sc ience in part because it increases the likelihood that substantive flaws in methodology will be detected.

The trial court should also consider the known or potential rate of error. Finally, general acceptance can yet have a bearing on the inquiry.

There are two interesting aspects of Daubert: the first is that the parties both argued that abandonment of the general acceptance Frye test would result in a free­ for-all in which juries would be confused by pseudoscientific testimony. The Court pooh­ poohed such concerns stating that traditional guarantees such as vigorous cross­ exa mination , presentation of contrary evidence and instructions on the burden of proof would be sufficient ro attack "shaky


but admissible evidence." The Coun did not characterize its new rule as an exclusionary device; it was contemplated by both sides and the Court that this new rule would be in reality, less restrictive than the Frye test. 3

Another consideration is that Daubert never mentions correct application of the technique as does Kelly. (n fact, the vast majority offederal courtS to have considered the issue have rejected Daubert challenges to evidence, holding that such issues go to the weight of the evidence, not its admissibility. In balance, this is more likely to be the correct holding and those few Texas cases that have considered the issue have resolved it similarly. This is likely to be ultimately the result in Texas as well eventually.

In Emerson v. State, 880 S.W.2d 759

(Tex.Crim.App.- 1994), the Coun was confronted with the State's failure to introduce any evidence to suppOrt a Kelly determination on an HGN, or horizontal gaze nystagmus test in a OW1 case. In a 5­ 4 vote, the Court held that itcould judicially notice the various publications and court decisions and ruled that HGN was a reliable scientific theory and technique. The impact of this decision may well be that once an appellate court decides that a panicular theory or technique satisfies [he requirements of Rule 702, a future proponent of the theory may well satisfy his burden by simply asking the trial court to judicially notice the appellate decision. The objecting party would then have to inj ect inro the record a new challenge ro the reliability of the technique.

In Jordan

v. State, 928



(Tex.Crim.App.- 1996), the Court decided the scope of the relevance component of

Rule 702. Relevance was, by its

"looser notion than reliability." Whether evidence would assist the trier of fact and was sufficiently tied ro the facts of the case was a simple, straightforward matter to establish. The court held that an expert need nor testify ro every conceivable facror that

might influence the theory or techl ;que he

was advancing.

natu re, a

Adopting a notion of fit that is so suict as to require an expert ro address every

foreseeable issue pertinent ro his testimony that might be raised by the relevant facts goes beyond the requirement that the testimony be helpful and therefore relevant under Rule 702. The question is not whether there are some facts ir. the case that the experr failed

ro take into account, but whether the experr's testimony took inro account enough of the

pertinent facts ro be of assistance to the trier of fact on a fact in issue. That some facts were not taken into account by the expen is

a marter of weight and credibility, not admissibil ity.

In Hartman

v. State, 946 S.W.2d 60

(Tex.Crim.App.- 1997), the Coun rejected an argument that reliability could be established legislatively. The San Anronio court had rejected a Daubert or Kelly challenge ro the admissibility of the Inroxilyzer on the theory that the Legislarure had already determined the admissibility of such tests. The Coun held that Rule 702

and the Kelly analysis applied ro all scientific

or experr testimony, not just novel testimony,

and the State was obligated to satisfy rule

702 before seeking to admit such testimony.

In Nenno v. State, 970 S.W.2d 549 (Tex.Crim.App.- 1998), the Court consider the application of Kelly ro psychology and other social sciences. "The question we confront roday is whether Kelly is applicable ro nonscientific expert testimony (i.e. that involving technical or other specialized knowledge) ." The Court ruled that both Daubert and Kelly applied but not the specific facrors oudined in those cases. The Court distilled Daubert into two important

propositions: that the trial court was required

a gatekeeper to det e rmine the

ro act as

reliability of expen evidence and that the four facrors of Daubert did not necessarily apply outside the hard sciences.


addressing fields of study aside from

the hard sciences, such as the social sciences or fi e lds that are primarily based upon experience and uaining as opposed ro the scientifiC method, Kelly's requirement of reliability applies but with less rigor than to the hard sciences. To speak of the validity

of a "theory" or "technique" in these fields may be roughly accurate but somewhat misleading. The appropriate questions are:

(I) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expen's testimony is within the scope of that field , and (3) whether the expert's testimony properly relies upon and/ or utilizes the principles involved in that field. These questions are merely an appropriately tailored translation of the Kelly test ro areas outside of hard science. And , hard science methods of validation, such as assessing the potential rate of error or subjecting a theory ro peer review, may often be inappropriate for testing the reliability of fields of expenise outside the hard sciences.

Nenno is an unfonunate decision. While there is absolutely nothing wrong with adopting a flexible standard depending on the field of experrise. the formula adopted by the Court is virrually meaningless. How does one determine the legitimacy of a particular field of ex pertise? Is such a question nothing more than an issue of whether the expertise will assist the trier of fact, i.e . is it relevant? If the experrise will provide the requisite assistance, then it is relevant. An expert who claims ro be able to intuit who is telling the [[uth will provide assistance ro the jury and thu s, might be relevant, but is it reliable? The legitimacy of a field of expertise has nothing to do with assuring a minimal level of reliability and everything ro do with a coun applying a standardless analysis of what evidence the jury is ro hear. Further, whether [he subject matter is within the experr's scope is an issue that can be entirely determined by the expert himself, without any reference to the opinion's reliability. Nenno provides us with no assistance at all.

Finally, the Supreme Coun weighed In again on the same issue as Nenno in Kumho

Tire Company v. Carmicha el, 119 S.Ct. 1167

(1999). The Court ruled that Daubert's general principles applied [0 all expen matters. Rule 702 was a standard of evidentiary reliability. Daubert, however, is a flexible inquiry; a uial coun may consider the various factors. Reliability concerns may focus on scientific foundations or personal


knowledge or experience. The Daubert questions may help [0 evaluate the reliability of even experienced-based testimony. How often, for example , does an expert's


"rroneous results? Is such a method generally accepted in the relev:!.I1t community? Would others in the field recognizc the method or technique as acceptable? What is essential, according [0 the Court, is that the expert use the same level of intellectual rigor in the courtroom as outside of it. A trial court should consider the Daubert factors where they are considered reasonable measures of the reliability of expert testimony.

based methodology prod uce

There are rwo principles that are gleaned from Kumho : like Nenno, the 702 gateway function of the trial court and the heightened reliabilty standard apply to all expert testimony, not JUSt those disciplines of the hard sciences. Unlike Nenno, the standards remain the same, regardless of the nature of the testimony. While there is a great deal of latitude to be afforded trial courtS under Kumho to decide how reliability is to be determined, the Daubert principles must be satisfied.

2. OWl Intoxilyzer


(Tex.Crim.App.- 1997). Court holds that State must satisfy Kelly and Rule 702 before admitting Into xilyzer results; statute authorizing admission of breath test results

will not satisfy 702 requirements.





S . W.2d


v. State, 880 S.W .2 d 759

(Tex .Crim .App.- 1994). HGN approved under Kelly, by using judicial notice. See



4. Drug Analysis







(Tex.App.- Texarkana, 1998 pdr ref'd). A drug chemist's testimony approved under Rule 702. Here, however, chemist testified only about her background, experience and the machine's operation. No testimony was elicited about the underlying theory of the spectograph. Court found Kelly satisfied because chemist testified that if there is an error in the process, the spec[Ograph won't work. Court notes that defense failed [0 offer any challenge [0 the underlying reliability. While this is not the objecting party's burden, counsel would do well not [0 take the issues of burden of proof outlined in



Kelly, see above, literally. One should be

The following is a list in no particular order where courtS have considered various disciplines in the context of Kelly and Rule 7 02. Some editorializing is included where [ rhought appropriate.

prepared to go forward with such a cha.llenge [0 undermine the theory, if the evidence is available. Court also notes that it was error [0 not hold the hearing outs ide the jury's presence and not properly allocate the

1. Eyewitness expert testimony


burden of proof but the errors were harmless. See also Wilson v. State , 854 S.W2d 270

Weatherred v.

State,985 S.W.2d


(Tex.App.- Amarillo 1993); Williams v. State,


Beaumont , 1999 pdr grtd .) .

936 S.W2d 399 (Tex.App.- Fort Worth,

Here, the

defendant elicited extensive

1996 pdr ref'd). Durham v. State, 956

tcsrimony from his witness about the field. He supported his 702 hearing claim with extensive articles, treatises and abstracts of articles. Over 60 experts were summarized for the bill of exceptions . See also Jodan v. State, 928 S.W2d 550 (Tex .Crim.App.­ 1996) (eyewitness expert testimony is relevant - see above). The PDR grant here, given the holding of Nenno , leaves the effect of this holding in substantial doubt. See also Nations IJ. State, 944 S.W.2d 7 95 (Tex .App.­ Austin, 1997).

S.W2d 62 (Tex.App.- Tyler 1997 pdr ref'd) (use of drug chemist [0 determine to what extent defendant was intoxicated by marijuana at time of accident approved).

5. Anatomically correct dolls

Perez v. State, 925 S.W2d 324 (Tex.App.­ Corpus Christi, 1996). Court refused [0 apply Kelly to this issue because Kelly applied only ro novel scientific evidence. Because articles about such dolls extended back 15

years , a 702

analysis was nOt required.

Obviously, this is no longer a valid holding

under Nenno and Kumho.

6. Reverse or retrograde extrapolation theory in OWl

Hartman v. State, unpublished opinion. Aug. 4, 1999. On remand from the CCA, see above, Court holds that reverse extrapolation satisfies Kelly but what was not challenged was either the underlying scientific theory or the technique, only its proper application. Without so stating, court in effect, holds that these issues for the jury ro decide, an analysis similar to that of the federal courts. Dissent notes the problems with both theory and technique.

7 Polymerase chain reaction (PCR DNA test)







(Tex.App.- San Antonio 1998). PCR method of DNA analysis found valid under

Kelly. See also Campbell v. State, 910 S.W2d

475 (Tex.Crim.App.- 1995).

8. Munchausen Syndrome

by Proxy (MSBP) Reid v. State, 964 S.W2d 723 (Tex.App.­ Amarillo, 1998) MSBP - the act of endangering a child in order to perform heroic acts of saving child's life - found valid after extensive Kelly hearing. This case presents good example of how a Rule 702 hearing should be conducted . Should be considered a blueprint for such hearings, including theories of validation, etc.

9. Probability of Paternity Statistics

for use in Sexual Assault case.




(Tex.App.- Amarillo,

under Kelly.






10. Hydrocarbon sniffing dogs.

Pitts v. State, 982 S.W.2d 175 (Tex.App.­ Housron 1 1998 pdr ref'd). Again, like drug

chemists, a faulty 702 analysis but use approved.

11. Radar guns

Ochoa v. State, 994 S.W.2d 283 (Tex.App.­ EI Paso, 1999). Here, the state attempted


Ocrober / November 2000


to use the sa me 702 tec hniqu es as in the drug chemist cases but court here disapproves and mandates strict Kelly compliance. Rader guns not approved.

12. RFLP DNA analysis


(Tex.Crim.App.- 1992).

See a lso Hicks v. State, 860 S.W.2d 419 (Tex.Crim.App.- 1993).

K elly




S .W.2d

RFLP approved.

13 Graphoanalysis Sosa v. State, 841 S.W.2d 912 (Te x.A pp .­


There was a total failure by defense

counsel to make any real effort to satisfy Ru Ie


HoustOn 1 1992) . GraphoanaJysis


14 Family Counseling expert who

testified about long-term responses to v iolence and whether victim exhibited such responses.


(Tex.App.- Waco J997 pdr grt'd). Court rej ec ts use of such test imony here bec au se state utterly failed to make any reaJ effort to comply with Rule 702.






15. Roise v. State,

_S.W.2d _

(Tex.App. - Austin, November 4, 1999). Court of Appeals excludes testimony of psychologist who offers opinions of harm to children based on his analysis of photographs in the possession of the defendant. Case turns on several iss ues , namely whether the testimony was relevant, whether there was a "fit" between the opinion offered and the evidence elicited and whether triaJ court even bothered to conduct a 702 a naly sis . State does advance argument that while testimony might not have satisfied Kelly and Daubert, it did satisfy Nenno. Court rejects argument.

I While courts have adhered to this procedural requirement of an out of the presence of the jury h ea ring with (he

proponent of the evidence havi ng the burden of proof, that adherence has largely been in name only. Most co urtS that have considered

ruled (he failure to co mply

See e.g. Chisum v. S tate, 988

S.W.2d 244 (Tex.App.- Texarkana, 1998 pdr


the issue have harml ess error.

2 For our purposes here, Federal Rule 7 02

is virtually identical to Tex .C r.Evid.

7 02.

3 In fact, with few exceptions set forth below, the principal development of the Daubert rationale has been an inclusive one. The principal reputation of Daubert as an exclusionary rule has been in the civil arena and primarily direct to plaintiff's personal

injury attorneys. See Merrell Dow v. Ha vner,

953 S.W.2d 706 (Tex. 1997)(co urt added

to the Daub ert factors listed above, the considerations of whether there are non­ judiciaJ uses of the theory or technique . In other words, has the techniqu e only been developed for litigation purposes. See also

E.I du Pont de Nemours v. Robinson, 923

S.W.2d 549 (Tex. 1995).





James Truett Garrett



Houston, TX 77007



An HCClA Voters' Guide


While not as high profile as the national debates to determine which politico will wrest control of 1600 Pennsylvania Avenue, a series of live comt-arisons between rhe tWO remaining candidates for Harris County District A((orney is proving important if, for no orher reason, it challenges voters 10 think and talk about some of the most compelli ng issues in our local criminal justice system.

"I believe changes are needed in rhe Harris Counry District AtlOrney's Office 10 bring it into the 21 " century for our community and in the eyes of the world," Democratic candidate Jim Dougherry IOld The Defender, following a Thursday, September 7, 2000 dinner debate between Dougherty and Republican candidare Chuck Rosenthal. "] wanr the Harri s Counry Districr ArlOrney's Office and Harris County to achieve an inrernational reputation for fair and equal justice, competenr and effecrive prosecutions, the highesr ethical standards, high ideals, and a focus upon the shorr and long-term effects of its acrions," Dougherry said.

The dinner debate, sponsored by the Pasadena Bar Association and held at the Pasadena Country Club, marked rhe first in a series of side-by-side comparisons between the candidates. According to Dougherry, he and Rosenthal will meer in various forums 10 contrasr their positions on issues such as rhe death penalt)! (borh are for it, although Dougherty would favor a resrrucruring of the law 10 include an option of "life withour parole" ), alternative dispute resolurion, and communiry involvement. The candidates will meet in a Channel 13 television s tudio debate in OClOber 2000, which is scheduled ro air before Elecrion Day on Tuesday, November 7, 2000.

[n Pasadena, as in other campaign slOpS, Rosenthal used biblical language 10 express his supporr for the current dearh penalty system in Harris County. The 200-plus audience, with a large contingency from the Harris COllnry Districr AtlOrney's Office, applauded Rosenrhalloudly, even as the Republican candidate sropped JUSt shorr of his usual thumping charactcrizarion of prosecution as "doing the lord's work. " Rosenthal has raised eyebrows at a number of campaign


comments about whar he enjoys mosr about being a proseculOr. "I like doing bad rhings ro bad people," he has IOld audiences on a number of occasions.

appearances with hi s

Whether ir is truly fair 10 label all individuals accused of breaking the law as "bad people," or whether an informed elecrorate mighr actually recoil from a candidate who expresses pleasure in doing " bad things" ro orher human beings, there is no question that Rosenrhal 's rhelOric has struck a cord with his Republican supporters. Most

has struck a cord with his Republican supporters. Most observers agree that unless something bizarre happ

observers agree that unless something bizarre

happ ens between now

Rosenthal's starus as a Harris County Republican in a presidential election year has

all but assured that he will succeed John Holmes as rhe Counry 's next Disrricr ArlOrney.

and Election Day,

Bur before the voring public h"r,ds Rosenthal the keys 10 the corner office, The Defender h as requesred rhat he and Dougherty an swer a series of wrirren quesrions from rhe Harris County Criminal Lawyers Associarion. As you may recall, Rosenrhal's answers were first printed in The Defender (formerly Docket Ca/~ earlier rhis year, alongside the answers from Rosenthal's Republican primary opponents. For this edirion, The Defender gave Rosenthal an opporruniry 10 change or update his answers, while Democrar Dougherty was also asked 10 parricipate in our survey. Additionally, the candidates were asked 10 submir a single quesrion for their opponent 10 answer. The survey question s and answers, plus the questions and answers the candidates exchanged between themselves follow. (A prinr debate, if you wilL)

Interesring stuff, ro say rhe leasr.

follow. (A prinr debate, if you wilL) Interesring stuff, ro say rhe leasr. 10 • THE


October / November 2000


1. Why do you want to be Harris Counry District Attorney?

cases based on rhe relative strength of the evidence and nothing else.

Certified in Crimin al Law and have been for

more than 20 years . I have


Dougherry: The criminal jus rice sysrem


Which criteria are most important in

extensively and learned the ways in which others view our communiry and its criminal

Democratic side, which I see as open to all

of Harri s Counry needs improvemem and rhe Disuicr Anorney is rhe officeholder who

determining whether, in a particular case, the District Attorney should seek the death

justice sysrem . Politically, I am active on the

can immediately initiate needed change s


for participarion and dialog and I share thar

within his or her comrol and best advoca te

philosophy. I think a n outsider

is what our

for changes outside his or her comro!. I wam


death pe nalry

Is guilt absolute ? Will the

county needs right now to assure public

5. What (if any) active steps should an

to see changes m ade soon and it appea rs a

in the particular case deter

dialog on criminal justice maners. Crime

D e mocrat is needed to do it. My

anyone other than the offender) In looking

will be prosecuted and criminals punished

background includes: criminal prosecution

at the offend e r, is

the staturory alternative

regardless of parry affiliation .

and defense,

essential for balanced decis ion­

for capital murder, now life with a 40-year

Rosenthal: I'm a political "outsider" - I

making berween victims, offenders and the

by Mr. H olmes ands his predecessors, Mr.

minimum, s ufficient

to assure safery ro the

have never before run for office or been

public; a C.PA. , use ful for office administration; and mediation, desirable for

communiry? Is the offender a danger to others in prison to a degree that he is unlikely

politically active. The District Atrorney should be free from any a ppearance of

seeing th at trial s alone are not the only tools the DA's office uses . I seek a high qualiry justice system and will do all I can ro achieve on e that will be so recognized in this communiry, the coumry and the world. Ro senthal: To be abl e ro continue th e excellem prosecutorial standa rds established

Vance and Mr. Briscoe.

ro be capable of being sa fely contained ? I seek and support life-without-parole as a third option for capital murd e r and bel ieve its enactmenr would eliminate the need for most of the death penalries now being carried out in this state. Rosenthal: Whether the facts support a capital murder indictment and whether the evidence that addresses the answers to the

political motivations in the execution of his duries. The public ex pects and deser ves justice not politics in the pursuit of criminal convictio ns.

individual prosecutor take to insure that a conviction is not procured on the basis of illegal evidence or police misconduct?

2. \Vhat do you think IS the most compelling issue facing the Harris Counry District Attorney's Office and why?

Dougherry: Attitude, ethics and outreach .

Th e re is a that office

in our criminal justice system- to respect the defendants and thei r rights, the defense attorneys and their obligations, victims and their needs, judges and their proper role, and the communiry and its a nitud es. There is a need for th e DA's office personnel to see them selves in a larger role th a n JUSt trial

an o rn eys and suppOrt sra ff

and punish bad guys. Th e office needs to incorporate educ ation of the public, involvem e m in th e communiry, especially with youth, and ro be constam in respecting and espousing the ethical and constitutional standards required of prosecurors and law enforcemem officers. The public at large, including the minority communit ies especi a lly, need s to be assured that justice is

who prosecute

n eed to engender respect from for all componems and pl ayers

fairly and equ ally applied. Rosenthal: I beli eve that we need to remain autonomous from any outside influenc e s. We need ro cominue ro p I" ,secute

would be comp e lling ro an

average jury that th e d e ath penalty is

special issu es


4. Do you consider yourself an " insider"

or an "outsider" to the current political structure of Harris Counry? Which do you think would make a candidate better suited for the job of Harris County District Attorney and why?

Dougherry: I am a longtime resident of Harris Counry but an oursider to the currem political structure of the Harris Coumy judicial system and counry government. I have many friend s and supporters in the system and in th e Republican party though. My prosecution criminal law experience is

from the federal sid e as oppo sed ro the Harris

differs from the

DA's and the judges. I beli eve it giv es me a

Counry DA's office , which

broader pe rspecti ve than

solely through the local ranks. [was an advisory anorney with the Criminal Division

those coming up


four ye a rs and an


years. My defense criminal law practice has been in fed eral and state court. I am Board


Ass istam U.S. Atrorney in Houston for

of the U .S. Wa shington,

Department of Ju s tice

D .C.

Dougherry: The prosecuror ne eds ro know his or her case as early in advance of tri al as poss ible. In int ervi ewing witn esses a nd investigating officers, the prosecuror needs ro remain vigil a nt for potenrially ex culparory evidence and ask n e cessary qu es ri o ns of witnesses and officers . When pre- rrial motions seek discovery or suppression of evidence , rhe prosecutOr needs ro ask th e right quesrions of rhe right people and respond ro the motions forrhrighrly. \X/h e n

the pros ecutO r

convinced rhere is evid e nce from which the judge or jury can convict , he or she sho uld dismiss rhe case. Rosenthal: All evid e nce and all witnesse s should be scrutini zed ro be certain rhar it is accurate. This includes asking open-ended questions ro witne sses before an issue is se t for trial ro be sure of th at p e rson 's candor. It should also includ e asking defe nse co unsel ifhe/ sh e has any info rmari o n contra ry ro th e police investigarion .

hims e lf or h e rs e lf is not

6. For which criminal offenses (if any) should the Harris Counry District Attorney have a policy of not recommending a sentence of probation?


Dougherty: The policy may evolve while a m in office, but initially community supervision recommendations would be permissible in all cas es where it is legally authorized . Those recommendation s however would have authorization levels higher than the trial Jttorney in certain rypes of cases. There would likely be more use of community sup ervision and pretrial diversion with supervision under my admini s tration since I favor greater rehabilitation efforts on nonviolent offenders in the community. Rosenthal: Supervisory control of plea­ bargaining sh ould continu e to include occasional exceptions to policy: however, I support the policies that are in place.

7. How much influence should the complainant and/or the complainant's (or decedent's) family have in determining the District Attorney's recommendation for sentencing?

Dougherty: They should be kept informed, consulted and advised. Decisions of the District Attorney office ideally should be balanced between offenders, offenses and couns, and consider adequate pun ishment, prospect for rehabilitation, deterren ce, acce ptance of responsibility, and the safery of the community. The views of compl ainant and complainant's family should bc list ened to and fit intO th e aforementi oned framework. Recommended sentences greater than the norm require solid justification, whereas re c omm e nded se nt c nces less rhan rhe norm can be considered more ofren if rhere is n o harm or danger to the communiry. Rosenthal: Vicrims should always be consulted ; that said, all recommendations should be based on the evidentiary srrengrh of th e case.

8. In the upcoming term, which areas (if any) of the District Attorney's budget and/ or resources should be trimmed, expanded, or reallocared?

Dougherty: Specific changes need to awa it me taking office . However, areas that need staffing and money include victim-offender mediation in some cases, an increased focus

on white-collar crime and fraud, more diversion of drug and juvenile offenders, and more active encouragement and incentive for Assistant District Attorneys to get out into the communiry to educate and develop new and stronger rehabilitative and crime deterrent program s. Rosenthal: I want an outside audit of our office to see if resources can be reallocat ed. There are continuing needs to expand prosecutions in the areas of physical child abuse , public integrity, consumer fr a ud and white-collar crimes.

9. In prosecuting the "War on Drugs,"

should a

prosecutor seek rehabilitation as opposed

under what circumstances (if any)

to jailor prison sentencing?

Dougherty: Early identification of offenders needing drug, alcohol and mental health treatment and rehabiliration should be encouraged and necessary program s made available . Firsr offenders with user quantities would be prime for rehabilitation. When quantities are for di s rribut ion and s al e , rehabilitarion may require jailor prison as the reso urce. Rosenthal: Rehabilitarion is always a key goal. The Texas Professional Prosecutor's Act requires prosecutors to be cognizant of sentencing oprions. I have been in touch wirh Judges Creuzot and Gisr to look into their approach to Drug Courts. I rem a in a firm believer thar some jail time is a very good motivarional tool in encouraging rehabilitarion.

10. What are your priorities for change and/or improvement in the Harris County District Attorney's Office?

Dougherty: To change rhe tone and temperament of that office- to reduce the number of capital murder death penalties coming our of Harris C ounty; to instill respect for criminal procedure and process in the Assisrant District Artorneys and the office, including respect for defendants and their attorneys; to ke e p victims and complainants informed of the process and dispositions, to involve Assistant District

Attorneys more-so in th e

success or failure; ro promore more

sentencing and its

community involvement by Assistant District Attorneys; and find alternative and better ways to deal with some offenses and offenders, including the use of mediation and restorative ju stice programs. Rosenthal: In addition to the areas listed

above, I am planning to interface area police agencies to close the holes in the "dragnet".

I also plan for this office to become more

active in the legi slative process. Additionally,

I am interested in outreach to members of the minoritycommuniry to make this office more "user friendly" to those communities.

11. Under what circumstances (if any) should the District Attorney prosecute a domestic violence case when the

complainant desires that the prosecution be


Dougherty: When the injuries are exrensive , reperirive , or when there is clear intimidarion or manipularion by the defendant. Counseling, rehabiliration programs, pre -trial diversion with conditions, mediation and restorarive jusrice programs are some of the devices I would favor before trying cases. Generally, I do nor see a trail as posirive for any family unit. Rosenthal: In any case where rh e offender will not submit to therapy for his/her problem and rhe case can be made from an evidentiary stand point.

12. What (if anything) would you do to insure that the Harris County District Attorney's Office remains independent of special interests?

Dougherty: My own attitude and sense of criminal jusrice will assure th e independence of the office under my

I seek a high qualiry office ,

one that encourages rhe desirabiliry of a reciptocally high qu ality defense bar, and an independent, well-qu alified judiciary. The office will be more open to the public ,

participate more in public policy forums, and encourage input and involvement of citizens and organization s in communiry supervision , jobs creation , and program development. Rosenthal: Remain beholdin g to no one.

adminisrrati o n.


Dougherty to Rosenthal:

Chuck, there were several allegations of ethical breaches and one of immature behavior on your pan by your Republican opponents in the primary. Your responses were generally to explain the alleged breaches as those of an aggressive prosecutor willing to push the line and to acknowledge the behavior. What assurances can you give the public that you know the limits on ethical prosecution, that you won't overstep them in the future, and that you will instill in the Assistant District Attorney's working under you the proper legal and ethical standards?

Rosenthal Responds:

I am assured by the people who made

those allegations that they will vote for me

in November. The allegations remain unsubstantiated. As someone who has been

faced with legal and ethical decisions in State criminal cases on a daily basis for the past 23 plus years, I know the limits . One of the ways that you and the rest of the public will know that I will not oversrep the limits is that I have not done so in the past and have remained an aggressive prosecutor.

I have, and will remain, loyal to my oath of office.

I have, and will remain, loyal to my oath of office. 11 am ­12 pm. tues.-thurs.

11 am ­12 pm. tues.-thurs. 11 am ­2 am. fri. Gpm ­2am. sat . closed. sun. &mono

Rosenthal to Dougherty:

You once said in an interview that you and

Republican run-off election,

that you thought Harris County needed a Democrat District Anorney to balance all of the Republican Judges. What part do you see partisan politics playing in the criminal justice system?

I gave before the

Dougherty Responds:

Partisan politics should not playa role in the operation of the District Attorney's office, any more than it should playa role in being a judge. But the views we each have individually will playa role. Our own views are presumably reAected more broadly in the views of the party we represent, unl ess we are hypocri ti ca l. r identify myself as a Democrat because I believe in the ideals of using government to give a hand up to the less fortunate, (0 inclusion of all in parry and government, and

to respecting the views of all regardless of whether I agree or disagree with them. I am fiscally conservative in wanting to do all we can within a balanced budget. In the criminal law area, I believe in working more on rehabilitation and 1l0t JUSt incarceration. As District At rorney, I believe there is a need to keep criminal law and policy issues 011 the public conference table. The current political imbalance in Harris County has decisions being made in the Republican party offices and conveyed through the backrooms, without the public possibly even knowing what is being done in lock-step an d

what is not. Johnnie Holmes

serve d as a

primary counter-weight in the first rwelve years of his term, when Democrats dominated the system and he was a Republican. The system is so lopsid ed now, with every District and Counry Judge being Republican, that I think some balance should return . As District Attorney, I will keep criminal law issues on the public age nda , encourage dialogue a nd discussion, and keep my ear ro the ground on needed changes.


The Hyde Amendment allows vindicated criminal defendents the right to seek attorney's fees


Evolution of the Hyde Amendment

For years, peop:e pondered : What reli ef should a prevailing crimilJal defendant have against the Government? More specifically, how can we, as citizens , compensate those individuals who fall prey to the Department ofJustice and are victims of wrongful federal prosecutions? While some argue, " [d)efending against [a criminal prosecution) has always been deemed to be one of th e cOStS of American citizenship , '" others express the belief that no power should remain unchecked. In response ro public outcries for a de vice to monitor instances of prosecutorial misconduct on the behalf of vindicated criminal defendants, Representative Henry Hyde (R-Ill.) introduced to the House Aoor what is now known as the Hyde Amendment. Originally, the Hyde Amendment was offered as a criminal version to the 1980

Th e

Equal Access to Justice Act (EAJA).2

to prot ect criminal defendants from wrongful federal prosecutions. s D es pite little legislative his[Ory, it is clear from the language of the Hyde Amendment that it is intended to be a replica of the EAjA. For example, in the original draft, the burden of proof fell upon the government to prove that its position was "substantially justified," as is the standard in a claim under the EAJA. Due to resistance from the Department of Justice that standard was changed ro a high er one: the defendant must prove that the position of the government was " vexatious,


or in bad foith." "


language was later added to the Hyde Amendment that stated the "burden of proof" from the EAJA did not apply to the Hyde Amendment. 7

The Hyde Amendment

The Hyde Amendment reads:

"Duri ng fiscal year 1997 and in any fiscal

year thereafter, the court, in any criminal case (other than a case in which the defendant is represented by assigned counsel paid for by the public) pending on or after the date of

EAJA is a law that authorizes the award of

a law called the Equal Access to Justice Acr,


enac tment of this Act, may award to a

attorney's fees ro prevailing civil litigants

prevailing party, other than the United

against the United States, if the position of the government was not "substantially justifled. "·l As Rep. Hyde stated, "[w)e have

which provides in a civil case if the

States, a reasonable anorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless th e court finds that special circumstances


Government sues you , and you prevail


make such an award unjust. Such awards

are entitl ed [0 have atrorney's fees and costs

shall be granted pursuant ro the procedures

reimbursed . That is justice



and limitations (bur not the burden of proof)

occurred ro me, if that is good for a civil suit, why not for a criminal suit?"4 Rep. Hyde, as a rider to an appropriations bill , introduced the amendment ro the House Aoor for th e Commerce, Justice , and State Departments. After a thirty-minute debate , the House of Representatives passed the new legislation by a bi-partisa n vote of 340-84. The creation and passage of the Hyde Amendment has been linked to three main facrors: I) frivolous or m alicious

provided for an award under section 2412 of title 28 United States Code [EAJAJ . To determine whether or not ro award fees and costS under this section, the court, for good cause shown , may receive evidence ex p a rte and in camera (which shall include the submission of classified evidence or evid ence that reveals or might reveal the identity of an informant or undercover agent or matters occurring before a grand jury) and evidence

prosecutions that escape punishment, 2) the

or testimony so received sh a ll be kept seal. Fees and other expenses awarded

und er

Department of Justice's adoption of the position that prosecu tors (federal) are not subject [0 ethical rules of the states in which

this provision to a parry shall be paid by the agency over which the party prevails from any funds made available to the agency by

they are licensed, and 3) while the EAJA applies ro civil litigants , nothing is in pl ace

appropriation. No new appropriations shall be made as a result of this provision. " H

Commentarors opine that the final version of the Hyde Amendment resembles "a compromise berween the Depanment of Justice and the original proponents of the bill. "~ Prior to its passag e, both th e

Department of Justice and federal prosecurors heavily criticized the Hyde Amendment. Opponenrs ro the amendment argued the am endment was "unduly burdensome and served as an unlawful interference with their [federal prosecurors) discretion. 'o Countering the opposition, proponentS of the legislation observed that "the Hyde Amendment [will) put into place a much-needed vehicle for vindic a ted

More specifically,

arguments relating to inappropriate prosecution can now more easily be made and heard in federal coure"" Rep. Hyde responded [0 critics of his amendment, during congressional debates, by explaining that his amendment is

designed to target instances where the actions of federal prosecutors were "willfully


keep information from you that the law says

they must disclose

Funher, Hyde expressed hi s hopes that the new amendment will cause prosecutots to "think rwice about bringing cases for which there is no substantial justiflcation."' 3 Unfortunately, due to the infancy of the amendment, very little case law ha~ ueen established. Also, very little legislative hisrory exists surrounding the amendment, which means there are no rules of guidance [0 aid the couns in interpreting the statute. As a result, when reviewing the opinions of courts that have addressed the Hyde Amendment, one finds that the various courts use different approaches.

They suborn perjury.l l

criminal defendants

frivolously wrong. [Prosecu tors)

Interpreting the Hyde Amendment

While, some courts have chosen to examine only the plain meaning of the amendment, others have bypassed the plain meaning approach altogether and have anempted [0 discern the legislative intent.

United States v. Ranger Elee. Communs., Inc.,

22 F. Supp.

6 7 3- 7 5 (WD . Mich .

2d 667,

1998); see also Unit ed States v. Troisi,



Supp . 2d 595 , 596 (N.D. W Va . 1998) .


October / November 2000


What is a "criminal case?"

Also, rh e Courr in United States v. Wade

or in bad fairh " srandard replaces rhe EAJA

The Hyde Amendme nr applies ro "any

held rhar rhird-parry int e rvenor s in an

s randard

of "sub s ranrial jus[ificarion ." 13 F.

criminal case (orher rhan a case in which rhe

ab a rement acrion are nor considered

Supp. 2d

595, 596-97 (N.D . W.Va. 1998).

defendanr is represenred by assigned coun sel

prevailing parries because rhey were noc

The COUf[ in Holland srared rhar rhe

paid for by rhe public) pending

Amendment does not apply to courr­ appointed lawyers, wherher rhey are in privare pracrice or wirh rhe Federal Public Defender's Offic e. The Coun, in In Re Grand jllry Subpoena Duc es TeCtlm , held rhar issue s involving a

14The Hyde

jury s ubpoena, such as a subpoena

duces cecum, consriture a criminal case for purposes of rhe Hyde Amendmenr. 31 F

Supp . 2d

542 , 54 3-44 (N . D. 1998).

Yer , rhe Coun in United Sta tes v. Holla nd,

srared in dicra rhar a criminal case is limired ro proceedings rhar follow rhe parry's arresr or indicrmenr. 34 F. Supp. 2 d 346, 359 (ED. Va. 1999), modified, 1999 WL321555 (E.D.

Va. May 18, 1999) .


How is a "prevailing parry" defined? The Hyde Amendment permirs recovery

ro "a prevailing parry, orher rhan rhe Unired


rh e Unired Srares is prohibired from recovering an award, whac is less clear is whar is meant by "prevailing. " Two courrs have held rhar a pany has prevailed when ir has

obrained a dismissal , regardl ess of wherh er

prejudice . Un ited

States v. Ga rdn er, 23 F. Supp . 2d 1283 , 1290­ 91 (N .0 . Okla. 1998); see also Ranger Elec.

Communs., Inc . , 2 2 F. Supp. 2d ar 669 , 676. However, a parry is nor considered ro have prevailed when ir has obrained rhe dismissal wirhour prejudice of a grand jury subpoena.

In Re Grand jtlry Subpoen a Du ces

F. Supp. 2d ar 543-44. When mixed verd icrs are rerurned in

a criminal case, one courr has suggesred a "roraliry of rhe circumsrances resr " to derermine wherher rhe parry has prevail ed. Gardner, 23 F Supp .2d ar 1291. The roraliry of rhe circumstances resr includes "Iirigarion chronology" and wherher rhe parry has won rhe relief ir soughr. Id. While no Hyde Amendmenr opinion has defined prevailing in rhe contexr of appeals, couns interprering rhe EAJA have held rhar a parry has prev ailed when ir loses ar rrial and wins on app eal, bur a parry has nor prevailed when ir wins ar rrial and loses on appeal. 16

Tecum , 3 I

dismissal is wirh or wichour

"15 While rh e langu age is cl ear rhar


panie s ro rhe underlying criminal case . 93 F.


19, 22 (D .D.C. 2000).

What are considered to be "reasonable attorney's fees?" The Hyde Amendmenr allows for rhe

recovery of reasonable arrorney's fees. The Hyde Amendment stares rhar awards "shall be granred pursuant ro rhe procedures and


according ro rhe EAJ A. 17 The

EAJA limirs reasonable anorney's fees to $125 per hour, unless cosrs of living increase or "special circumsrances" jusrify a higher

Special circumsrances include rhe

qualificarions and skills of rhe arrorneys, wherher rhe anorney pracrices in a specialized area of law, and rhe marker rare for arrorney fe es. 19

award .


What are "other litigation expenses?" Thus far, one coun has held rh ar "expenses"

include rhe cosr of preparing and filing rhe

peririon. Ranger Elec. Communs ., In c. , 22 F

Supp. 2d ar 676. However, rhis do es nor mean rhar rhe only recoverable lirigarion expenses

are rhe cosrs of preparing and fli ing a peririon. Since, rhe Hyde Amendmenr incorporares rhe p rocedures and limirarions of rhe EAJA, ir is

rhar on e mighr be able ro recover

"orher lirigarion expen ses" as defined by courrs interprering rhe EAJA. Cases interprering rhe EAJA have held rhar following are recoverable as "expenses:" clerk fees, copying and prinring coses, and docker fees 20 ; rhe "reasonable" cosr of expen witnesses 21 , and on-line compurer research, so long as ir is rourinely billed ro rhe c1ientY Cosrs rhar have been deemed unrecoverabl e under rhe EAJA include overrime meals and local transportarion . 23


Who has the burden of proof and what is the standard? According ro rhe Hyd e Amendment, rhe party seeking ro recover arrorney 's fees has rhe burden of showing rhar rh e governmenr 's posirion was "vexarious, frivolous, or in bad fairh." Ambigui[ies exisr in whar is meanr by " burden of proof." The Court in United States v. Trois i found rhar rhe burden of proof shifts ro rhe peririoner and rhe "vexarious, frivolous,

peririoner has rhe burden of showing by a preponderance of rhe evidence, rhar rhe

governmenr 's frivolous , or in

358. Therefore, rhe peririoner does nor have to show rhar rhe gov ernmenr was nor "subsranrially jusrifled." !d. Several courtS have defllled rhe words vexarious, frivolou s, or in bad fairh. The

following are some examples:

posirion was "vexarious , bad fairh. " 34 FSupp.2d ar


- "[wjirhoU( reasonable or probable cause

or excuse,"24

- "unreasonable

.or wirhour foundarion,

even rhough nor broughr in subjecrive bad


of rhe arrorney 's duries ro rhe court,"2 5

- "lacking jusriflCarion and inrended to harass."2 6

eirher intenrional or reckless disregard


- " of lirrle weighr or importance , " 27

- " having 110 basis in

slighr, sham, irrelevanr, superficial. "2"

law or facr


Bad faith -" reckless disregard for rhe rrurh" (including [he failure ro disclose exculparory evidence) ,!1 -"conscious doing of wrong because of dishonesr purpose or moral obliquiry. ".lO

In allowing courrs ro derermine wherher rhe posirion of rhe governm enr is "vexarious, frivolous, or in bad fairh, " rhe Hyde Amendment pe rmir s courrs to " rec e iv e evidence ex pane and in camera (which shall include rhe submission of classified evidence

or evidence rhar reveals identity of an informant

or mighr rev eal [he or und e rcover agenr

or maners occurring before a grand ju ry) Wirh express permission from rhe language of rhe amendment irself, courrs h ave examined confid e nrial and privil eged documents from rhe Inrernal Revenue Service, rhe Deparrment of Jusrice, and orh er

federal ag e ncies . Gardner , 23 F. Supp . 2d a [ 1297-98 ; see also Unit ed States v. Holland,

1999 WL 3215 5 5, 6 (E . D Va. May 18,

" .I I

1999) .


What is meant by "agency?" The last section of the Hyde Amendment

reads, "[flees and other expenses awarded under this provision shall be paid by the agency over which (he party prevails from any

funds made available

-any governn.ent agency (e.g. the



Department of Justice,

Attorney's Office, the Internal Revenue Service, and the Federal Deposit Insurance Corporation) . In those instances where more than one federal agency is responsible for government misconduct, one court has held that all of the agencies involved are joint and severally liable for the total amount of damages awarded ro the peti(ioner. Holland, 1999 Wl

Lht' United State 's

that the peritionds failure ro file within the specified 30 days was excusable only because the petitioner was nor aware of any government misconduct until after the 30 days had lapsed. 22 F. Supp .2 d at 674- 7 5.

Time Limits to Appeal a District Court's Ruling Denying Recovery In this area, courts have differed as to how much time a petitioner has to appeal a district court'S denial of recovery. One court of appeals has held that since the Hyde Amendment pertains to criminal cases, the Federal Rules of Appellate Procedure should apply, particularly Rule 4(b). Robbins, 179 F.3d 1268, 1270 (lO'hCir. 1999). Rule4(b) stipulates tha( parties muse file a notice of

were reversed on aJi cOunts. The criminal defendants then filed a joint application for reimbursement of attorney fees under the Hyde Amendment. The United States District Court for the Northern District of Texas denied the application, and the defendants appealed. This Court held: 1)

appeal is subject to appealperiod applicable in civi4 not crimina4 cases; 2) appeal is not

fatally premature; 3) denial or applications will be reviewed for abuse of discretion; 4) defendants are not entitled to discovery and a hearing as a matter of right; 5) defendants bear the burden of proof; 6) defendants must prove more than just the government's position was not substantially justified; and 7) defendant's are not entitled to fees absent

321555 a( 9.

appeal withi n 10 days afrer the distric( court has entered its order. FED. R. CIY. PROC.

a showing that the underlying prosecution was vexatious, frivolous, or in bad faith.

After the district court's denial ofatrorney's

other Limitations of

4(b). Ye(, the Court of Appeals in the Fifth

the Hyde Amendment:


held, "" Rule

4(a) governs an appeal

ftom a district court'S ruling on a motion

fees, appellants filed a Notice of Appeal rwenty-nine days after the district court's


Existence of Special Circumstances

the court may decline attorney's fees ro a

filed under the Hyde Amendment. United

To have standing, the individual must

States v.

Truesdale, 211 F. 3d

898, 902-03

order was entered. The Court begins its analysis by first determining whether the

have a net worth of under $2 million, and

(5,b Cir. 2000).

corporations or ocher organizations muse have a nee worth of under $7million and 500 or fewer employees. 3 ;

That Would Render Award Unjust Amidst all the language of the Hyde Amendment lies an important limi(a(ion:

prevailing criminal defendant if "special circumstances make such an award unjust."~

Requirements of Subjective Bad Faith As one commentator has no(ed, (he Hyde Amend menr is silent as to whether a court must decide (ha( the government acted with subjective bad faith in order to find a violation under the amendment. 37 Numerous courtS in hearing Hyde Amendment claims have held that the absence of bad faith is not a bar ro recovery

appellant's Notice of Appeal was timely filed. The Court acknowledges that the text of the amendment itself fails ro clearly establish whether Federal Rules of Appellate Procedure 4 (a) or 4(b) should apply. Rule 4(a) provides that " [i]n a civil


case, with the diStrict clerk within 30 days after the judgment or order appealed from is entered. " Fed . R. App. P.4(a)(1)(8). Rule 4(b) reads, "[i]n a criminal case, a

defendant's notice of appeal musr be filed in

the notice of

must be

Unfortunately, no court has been willing to

of attorney's fees. See Holland, 34 F. Supp. 2d at 360 ; Gardner , 23 F. Supp. 2d at 1293;

(he district Courr within 10 days


venture into the uncharted waters in an effort

Ranger Elec. Communs., Inc., 22 F. Supp . 2d

entry of either (he judgment or the order

ro define "special circumstances." One can

at 673-74,676; Troisi, 13 F. Supp. 2d at 596.

being appealed

" Fed.

R. App. P.

look to EAJA opinions for clarification. Of



(he EAJA opinions, several courts have concluded that "special circumstances" involve those novel , but credible interpretations of the law as advanced by the government, while made in good faith. 3 )

However, statements made from both sides during the debate on (he floor suggest (hat the substantive standard should be a subjective oneY

Summary of Cases filed in the 5 th Circuit


F.3d. 898 (5,h Cir. 2000).

As the Coun stared in ItS opinion, arguments can be made in favor of either 4 (a) or 4 (b). At the time this case was heard, only one other court had addressed the very same issue. In Robbins, (he Court of Appeals for the Tenth Circuit held that Rule 4(b)

Time Limits co File a Claim under the Hyde Amendment

governs an appeaJ from a district coun's denial of a motion filed under the Hyde

The petition to recover attorney's fees under the Hyde Amendment mus t be filed within 30 days of the judgmenr upon which the peti(ioner seeks recoveryJ(, However, (he Court in Ranger created an exception ro (his time limitation. In that case, the Court held

In this case, several defendants were indicted and tried on multiple charges, includi ng conspiracy, money laundering, and conducting an illegal gambling operation. On direct appeal, however, the convictions

Amendment. 179 F.3d at 1270. However, because Rule 4(b) does nor "necessitate the conclusion that the motion itself is part of (he underlying criminal case," the Court concluded (hat " [(hey) are unable to join rhe Tenth Circui('s conclusion" and


Ocrober / November 2000


that "Rule 4(a) governs an ap peal from a

district coun's ruling on a motion filed under

th e Hyde Amendment. Truesdale, 211 F.

3d 898 at 902-03. The government argued that "like a motion to correct a sentence under Federal Rules of Criminal Procedure 35, 'a motion for reimbursement of attorney's fees should

be considered pan and parcel of the criminal man er rather than a separate civil proceeding.'" ld. After pointing out rhat the government offers no suppon for this argument, rhe Coun fails to agree wirh rhe government because "(al Rule 35 morion deals directly wirh rhe movant's liberty interesr, precisely the son of consideration that has been cited to suppon the shoner tiling period under Rule 4(b)." Id. The Court reasons that "[aJ morion under

rhe Hyde Amendment the movant 's liberty

it implicares are identical to rhose implicared

does not implicate rhe int e resrs

by a morion for attorney's fees under 28 U.s.c. § 2412, the Equal Access to justice Act (the "EAjA ") , th e procedures and limitations of which , with few exceptions, are made applicable to proceedings under the Hyde Amendment. The longer rime period provided in Rule 4(a) applies to proceedings under the EAjA. We find the comparison

of a motion filed pursuant to rhe Hyde Amend ment to one filed under rhe EAjA a closer analogy rhan rhe Rule 35 comparison provided by rhe government on bri ef" M. In suppOrt of it's holding, rhe Court further states, "a motion und e r the Hyde

Amendment is equivalent to a morion und e r

In each case, the movanr is

seeking an award of anorney's fees based upon a litigating strategy employed by the government that , the movant claims, conflicrs with certain statutorily defined notions offair play. It makes litrle sense that the rime period during which the movant may file a [Notice of Appeall from the denial of such motion should differ depending upon whether the government's potentially

offensive litigation strategy was employed in

the EAjA.

a civil case or a criminal case." Id. at 904. The Coun justifies its position by the plain meaning of the peninent language in the Hyde Amendment ("[sJuch awards shall be granted pursuant to the procedures and

provided for an award under

limitatio ns

section 2412 of title 28, United States Code.") and the non-existence of legislative intent to the contrary. "Finally, it could prove problematic for the Government if we re we to hold that a motion

fil ed under the Hyde Amend ment is part and

parcel of rhe und erlying criminal case and therefore subject to the Rule 4(b) filing period. As a general rule , the Government can nor, without statutory authority, appeal from a decision in a criminal case aware of no stature thar authorizes the Government to appeal from a ruling on a motion for an award of fees in a criminal case." ld. The Court an a logizes that if the Court were to adopt the government's argument, only the movant would be entirled to an appeal of an adverse ruling on a motion filed under the Hyde Amendment, and not rhe government. "We

we are

cannot imagine thar the Congress intended such a result and are unwilling, absent clearer statutory direction, to establish prece dent in this circuit lending support to such an

ou tcome. If Congress had indeed desired

thes e sons of proceedings to be treated as part and parcel of the underlying criminal case, we would have expected a path to have been established for the government to

appeal." Id .

Standard of Review

Regarding the proper standard of review, the Court holds that a disrrict court's decision regarding an award for attorney's

fe es under the Hyde Amendment is subject

to appellate review under rhe abuse of discretion standard (as is the EAjA). Id. at

905. Again, the Court looks at the language of the Amendment itself, particul arly the section of the Amendment that incorporates the EAJA's procedures and limitations to support th eir finding.

Right to Discovery and a Hearing In addition, the appellants in this case attempt to argue that the Hyde Amendment "entitles them to disco very and a hearing as

a marter of right." ld. at 906. Howeve r,

since the appellants in this case never alleged that they moved for discovery or a hearing

in rhe di strict coun, and there is no mention

of such a motion in the record, the Fifth Circuit refuses to address the issue. ld. at

906-07. Rather, the Coun chooses to decide wherher the district court abused its discretion by ruling on the appellant's motion without granting discovery or a hearing, even though neith er was requested.

"To determine whether or not to award fees and cOStS und er this section, the Court, for good cause shown, may receive evidence

.and evidence or

testimony so

sea\." Th e Hyd e Am e ndmenr, Pub. L. No. 105-119, Title VI, § 617, III Stat. 2519


Appellants argue even though movants have the burden of proof, the Amendment still provides for the confidential submission of evidence. Appellants argue that it "stand[sl to reason that Congress intended for th e claimant to have access to ev idence except such evidence which is confidential, and such evidence is to be presented to the

Court in came ra. "

received shall be kep t under

ex parte and in camera

Id. at 907.

The Court disagrees. " It appears the provision for in camera review of evidence was included to enable the Government to defend itself against Hyd e Amendment motions and at the same time protect confidential information. We do not read the Amendment as providing for discovery

and a hearing as a matteroFright." Jd. The Court finds that the district court, in the appellants' underlying case, did not abuse

discretion when it deni ed rhe appellants


an opportunity for a hearing or discovery. Id .

Burden and Level of Proof The Court holds that the burden of proof under the Hyde Amendment falls on the movants to show by preponderance of the evidence that the government's position was

vexa tious , frivolous , or in bad faith. ld. Jt

908. The Court mentions that, "[tlhe only

other Court of Appeals that has addressed this issue agrees that the movant bears the burden of proof " ld.

Vexatious, Frivolous. or in Bad Faith

The appellants in this case argue that the same standard, "substantially j ustified " as used in the EAJA, should apply to claim s made under th e Hyde Amendment as long as the movant proves that the position of


the government was not substantially justified. [d. at 90S. The Court reviews the debates on the House Roor that occurred when Rep. Hyde fist introduced the law. The Court says that, "as originally introduced on the floor of the House, [the Hyde Amendment) ma";e ;morney's fees available absent special circumstances making such an award unjust, 'unless the Coun finds that the position of the United States was substantially justified. " Id.

However, the standard was changed to "vexa tious, frivolou s, or in bad faith" in the Conference Committee. "A movant must preve more than JUSt that the government's position was not substantially justified." rd. at 909. Obviously, the burden of proving "vexatious, frivolous, or in bad faith" is a higher hurdle for movants to jump than just proving that the government was not "substantially justified." The district court agreed with this proposition as posed by the movants; however; this Court disagrees. Yet, the district court denied appellant's claim because appellants could not prove that the government's position lacked substantial justification. This Court then holds that the district Court did not abuse its discretion (despite applying the wrong standard) because if the appellants in this case could not prove that the government was not substantially justified, then appellants certainly could not meet the higher burden or proving "ve xatious , frivolous, or in bad faith." lQ. at 910. Ultimately, the Court affirmed the decision of the district court.

Practice Tips for Filing a Hyde Amendment Claim

Original Pleading:

Thomas Hagemann and Greg Waller did one of the best examples of an Application for Attorney's Fees and Supporting Memorandum. This pleading provides an excellent blue print for crafting a Hyde claim .

D.O .J. Standards That Can Be Used As a Basis for a Hyde Claim:

Some of

published in the United States Attorney's

th e D.O.J.'s standards, as

are helpful in es tablishing

a claim under the Hyde Amendment. The

Manual (USAM),

standards can be Llsed as a starting point to establish the government's conduct was vexatious , frivolou s, or in bad faith. The preface to the "Principles of Federal Prosecution" reads:

The manner in which federal prosecutors exercise their Decision-making authority has far­ reaching implications, in terms of justice and effectiveness in law enforcement

the consequences for individual

citizens. A determination to pro secu te represents a policy judgment that the fundamental interests of society require the application of the cr iminal laws to a particular set ofcircumstances - recognizing both that serious violations of the Federal law must be prosecuted, and that prosecution entails profound consequences for the acc used and the family of the accused whether or not a conviction actually results.


USAM § 927.000. Section 927 .00 I states, "t his statement of

prin ciples

ensuring the fair and effective exercise of

prosecutorial responsibility

confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case." Section 927.220, "G rounds for

Commencing or Declining Prosecution," identifies three factors that federal prosecutors must consider when deciding whether or not to elect prosecution. Those facto rs are:

I) no substantial federal interest would be served by prosecution 2) th e person is subject to effective prosecution in another jurisdiction, or 3) there exists an adequate non-cri minal alternative to prosecution .

serves two important purposes:

and promoting

Section 927.230 is an expansion of section 927.220. This section lists seven

considerations that federal prosecutors must evaluate when determining if a substantial fed e ral interest is present. Those seven considerations are:

1) federal law enforcement priorities


the nature and seriousness of the offense

3) the deterrent effect of prosecution 4) the person's culpability in connection with the offense 5) the person's history with respect to criminal activity 6) the person's willingness to cooperate in the investigation or prosecution of others 7) the probable sentence or other consequences if the person is convicted


The specter of a Hyde claim can become important to the resolution of the underlying criminal case. As more claims are filed and more parties recover, the government will be forced to consider the consequences of a suspect prosecution. This realization can factor into settlement discussions. One fertil e area of government misconduct is grand jury investigation. The Act's allowance for discovery and prod uction (or matters occurring before a grand jury) provides a useful vehicle for uncovering government misconduct in this area. The existence of ample case law concerning government misconduct at the grand jury level facilitates the use of Hyde claims. Many reported cases highlight acts of prosecutorial conduct that amount to bad faith. The identification of these establish acts amounting to bad faith provide a natural precursor to a Hyde claim. The final and most important point to take from this paper is USE IT! Use the Hyde Amendment. Without use, the Act lies useless. Aside from the circular sound of that, the Hyde will only become a real threat once there is an established body of case law.


Special thanks to the following: Derissa

Cheatham, Dan Cogdell, Dick Deguerin , G.

Allen Goodling, Thomas

Herasimchuk, Michael Ramsey, Barb ara Smith, A. A1exzandra Taylor, Greg Waller

H age mann, Cathy

Other Recommended Readings:

Wisconsin Lawyer, Fighting back: Remedies for the wrongfully prosecuted?, Vol. 7 1, No.9,

September J99S.


OctOber / November 2000


William and Mary Law Review, Power,

Policy, and the Hyde Amendment: Ensuring SoundJudicial Interpretation ofthe Criminal

Attorneys' Fees Law, by Lawrence Judson Welle, Vol. 41, pg. 333, December 1999.

Or Visit:

5 See Dick Deguerin & Neal Davis, 1fThey







Amendment, THE CHAMPION 30, SeptemberlOccober (1999). 6 See Pub. L. No . 105-119, § 61 7, III Stat. 2440, 2519 (1997).

7 See id.


25 Gardner, 23 F. Supp. 2d at 1293. 2(, Holland, 34 F. Supp. 2d at 359-60.

27 Reyes, 16 F. Supp 2d at 7 61; see also Holland, 34 F. Supp. 2d at 359-60.

28 Holland, 34 F. Supp . 2d

at 359-60.

2~ See Troisi,

) 3 F. Supp. 2d at 596; see also

Range r Elec. Communs., Inc ., 22 F. Supp. 2d

at 676.


See Joseph F. Savage, Jr. & Geoffrey M.



16 F. Supp. 2d at 76 1.

051 7metbgambling.htm, Bookies'case may pay

Scone, Recovering Attorney's Fees After


Supra note 6.

offfor gambling:

Appeals Court ruling

Wrongful Federal Prosecutions: New


Supra note 6.

improves offshore bettors' Courtroom odds,

Amendment Opens the Door, 6 WH ITE­


See supra note 3.

attorney says, May 17, 1999 , article by Bill

COLLAR CRIME REP. I, 1-2 (1998) ; see


Supra note 6.


aLwThe "Ethical Standards for Atcorneys for

35 See jackson v. Bowen, 80 7 F. 2d 127 (8,h Hyde Amendment Makes Violations Costly - Win At All Costs

th e Governmem ," which was codified at 28 U.s.c. § 53 0B (J 999), and requires

Cif. 1986). 36 See supra note 3.

series, December 13, 1998, anicle by Bill

attorneys for the fed eral government to


See Roben J. Martina, Frivolous Appeals:


follow the ethical rules of the state in which

The Uncertain Federal Response, 1984 Duke

they practice.

L.J. 845,850 .



10 Abramowitz & Scher, supra note I at


143 CONGo REC H7786, H779 1

1 See Elkan Abramowitz & Peter Scher,


Hyde Amendment: Congress Creates a Toehold

for Curbing Wrongful Prosecution, THE

CHAMPION 22, n.23 (1998).

L In all ac[Ualiry, the Hyde Amendmem

was not created as a response co the overly abusive tactics of federal prosecutors in an effort to protect all criminal defendants.

Rather, th e idea

protect members of Congress and their staff from wrongful federal prosecurions. Represe mative Joseph McDade (R-Pa) was acquined of brib ery and racketeering charges in 1996 after an exhaustive eight-year c rimin al defense round. After witnessing his colleague's battie with the government, Representative John Murtha (D-Pa) imroduced an amendmem to the 1997 Commerce, Justice and State Departments'

appropriations bill. That amendment on ly allowed for members of Congress and their

staffs co recover anorney's fe es from the

Governmen t for wrongful

Howevel', it was Rep. Hyde, in an effort to

make the legislation more appealing, that extended the " Murtha Amendment " co any prevailing criminal defendant.

3 See Equal Access co Justice Act of 1948, 28 U.s.C § 2412 (West Supp. 1999). 4 143 Congo Rec. H7786, H7791 (daily ed. Sept. 24, 199 7) (statemem ()f Rep. Hyde).

came about in order to

prosecu tions.


See id. 12 House Backs Measure Exposing

Awards in


Gov ernment to Attorney's Fee

Criminal Cases, 82 CRIM. L. REP. 1019 (1997) . 13 143 CONG.REC H7786-04, H7792 (daily ed . Sept. 24,1997) (statemeI1( of Rep. Hyde). 14 See supra note 6. 15 Supra note 6.

IG See, e.g., Hirschey v. FE.R.C. , 760 F.2d

305 (D.C Cir. 1985 ); see also Alliance to End

Repression v. City of Chicago, 119 F.3d 472

(7'1. Ci r. 1997). 17 See supra note 6. 18 See supra note 3.

") See Gary Knapp, The Award ofAttorneys'

Fees in Excess of$75 per Hour Under the Equal Access to justi ce Act, I 19 A.L. R. Fed . 1.

20 See Photo Data , Inc.


Sawyer, 533 F.


Massachussetts Fair Share v. Law Enforcement

Assistance Admin. , 776 F.2d 1066 (D.CCiL 1985) (duplication fees).





1982) ;


2 1 See Walton 11. Lehman, 570 F. Supp. 490

(E.D. Pa, 1983) .

II See Nat 'l Ass'n of Mfts. V.

u.s. Dept. of

Lab., 962 F. 2d 191 (D.D.CI997). 23 See supra note 20.

Reyes, 16 F. Supp. 2d

75 9,7 61 (S.D. Tex. 1998); see also Gardner, 23 F. Supp.2d at 1293; Holland, 34 F. Supp.

2d at 360.

24 United Stat es V.

(daily ed. Sept. 24 , 199 7) (statement of Rep. Hyde) ("[I)f [the prosecution) was an abuse of process, if it was malicious, then the victim, the defendam who has prevailed. is

emitied to attorn ey's fees

San sues you,

are not JUSt wrong, they are wi ll fully


anorney's fees reimbursed and the COStS of litigation .") ; see also LEGISLATION WOULD PAY FEES OF ACQUITTED; CRITICS SAY DEFENDANTS LIKE HINCKLEY, GOTTI WOULD GET FREE LAWYERS, Baltimore Sun, Ocr. 24 1997, at 12A, ava il ab le i n 1997 WL 553599 7 ("What is your remedy if not this for somebody who has been unju stly, maliciou sly, improperly, abusively tried by the government, by th e facel ess bureauc ra ts ''') (quoting Rep. Hyde).

What if Uncle

.but they are wrong. They

you should be entitled to your

.but they are wrong. They you should be entitled to your October / November 2000 T



Harris County


49 San Jacinto' Houston, Texas 77002' (713)755·2700

August 28, 2000

Nancy H. PlaIt, Director Mike Enax, Assistant Director

Richard Frankoff, President Harris County Criminal Lawyers Association P. O. Box 22773 Houston, Texas 77027

Dear Mr. Frankof!:

On behalf of the Harris County Community Supervision and Corrections Department, we would like to express our sincere appreciation for your association's contribution in the fonn of a scholarship for a probationer. This scholarship money has been awarded to a worthy recipient and is being used as intended, to help serve the needs of clients.

Roshawnna Muse, the recipient is registered at Houston Community College and plans to seek a career as a medical assistant. Enclosed you wiil find a letter from Ms. Muse . Your dedication to helping probationers achieve success is obvious by the generosity you have shown with this scholarship.

We look forward to working with your association in all matters of mutual concern. Please feel free to call upon us when needed.


Jh'~;7#~ ~

Nancy H. Platt, Director


Mike Enax, Assistant Director

Roshawnna Muse 7202 Gracia St. Houston, IX 77076

August 28, 2000

To: The Harris County Criminal Lawyers Association

I am writing this letter to thank: you so much for allowing me this opportunity to better my life for my children and myself. If it were not for the beginning that your association has given me I would not have known how to start. Maybe would have never started. So again thank you so very much.


started. So again thank you so very much. Sincerely, 2 0 • T H E D



th e

CCCL#6, Assault in CCCL#15 (Motion for

N ew Trial g ranted

fo r in sufficient evidence

after a guilty jury verdier).


Baker -

Evading Arre s t In

Roger Bridgwater- Murd e r in the 230th District Court.

Jack Carroll- Prostitution (Entrapmenr)


in CCC L# 14, Po ssessi o n o f Mariju a na CCCL# 10.

Dave Stiller - Theft in CCCL# 5.

Danny Easterling -

OWl (No Test) 10

CCCL# S , OWl (No Test ) in CCC L#4.

Paul St.

John - Robbery ( H abitual) in the

18 5 [h District CourL


CCCL# 9.





Te s t )


Jim Sullivan and

Nancy Botts - Assault

in the

31 5 th District CourL

Robert Flynn and Werner Voight - Two

in the

codefend anrs, Aggravated Robbery


7th Disrri ct Court.

Gilbert Villareal -


Robb e ry

(Habitu al) in the 184th District C o urt.

DavidWyborny- Th eft in CCCL# Sand Theft in CCCL# II.

D eliver y o f a

Conrrolled Substance in the 339th Di strict

COUrt , Carrying a Weapon in CCCL# 13 and Criminal Mischief in CCCL# 2 .

Jonathan Gluckman -

Michael Monks - Felon y OWl (No Tes t) in the ISOth Di strict Court.


The Kiam Building 929 Preston, Suite 200

Receptionist, Copier & Fax Included Close to Courthouse· Secured Entry

Contact Jerome Godinich


Russell Webb - CCL#7 on a Cl as s A Criminal Mischief where the complaining witn ess testified he sa w client key his car. During voir dire Russell asked the panel how many had their vehicles vandalized (7 of 20). Then he asked how many saw the dirty deed being done (0 of 7). Evidence of a grudge against my client by CWo

Dave Stiller ­ an acquittal in CCL#S o n

Two-day trial; 35 minute

a no-test DW1.


David Mitcham five jury verdicts in a row between April 22 and June 18! Two back­ to-back not guilty OWl s-on e tes t; on e no

test-in CCL#sI2 and 15. A 2nd degree felon y robbery reduced by the jury to a Cl ass


probation in the 183 rd; an acquittal of a "3­ time ex-con, ex tradited fugitive, habitual offender" after a week-long trial on aggra vated assault with a de adly weapon in the 263rd and finally, a DWr acquittal in CCL#7. Phew l

misdemeanor theft, with judge-ord e red

John Petruzzi - CCCL#2 on a non­

domestic assaulL crw had allegedly suffered

a broken jaw. Coincident ally, ADA su ffered

a "bruised ego" when th e jury came back in less th a n 20 minut es.

Karen Barney - Hung jury in a Sexual Assault of a Child case in th e 208th, which resulted in a (8-4 for not guilty) . Defendant then rejected several offers including a misdemeanor defer red; the State dismissed the case on day of tri al round #2 .


Neal Davis - Carrying a Weapon-Motion to Suppress granted in CCCL#2

to Suppress

granted on 10 kilos of cocain e-Grant Court­ State appeaJed-Court of Appe a ls a ffirm ed.

Matt Henessey -


Da.ina O'Kane - Da i na writes : " I had a

case plead today for misdemeanor time served. Why is th a t a win' Original offer :

25 ye a rs (habitual felon ) . Wh e n pu s h came

to shove, enhancements abandoned and reduced to misdemeanor. I'd call that a victOry in my book l " So would we!

Silverman - Two motion s to

suppress grant e d: 1st d egree cr ack coc aine in the 24S ,h a nd 7 50 Ibs of weed in th e 182 "J.


Abby Weinhauer -

Motion to suppress

granted 100 lbs of weed in t he 338 "' .

Jay I(arahan

Attorney - Mediator

700 Post Oak Tower 5051 Westheimer Houston, Texas 77056


713/622-8777 Fax 713/254-1866 Pgr.


Ocrober / November 2000





We advocate that a paid-in-full attorne, is a client's best defense

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October / November 2000