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f een er
A Publication of Harris County Criminal lawyers Association
October / November 2000
HCClA Annual
Meeting at Tony's
Banquet Room
New officers
and directors
Inside: DA Candidates
Square Off
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& Kelly
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October/ November2000
From thePresident ........................2
ThroughaNewPairofEyes .................3
Daubert,KellyandTheirProgency ...........6
Richard Frankoff
Wayne Hill
DA CandidatesSquare Off ........ .... .. .. 10
Troy McKinney
FedSquare ............................. 14 TREASURER
Emily Munoz
Danny Easterling
HCCLA Scholarship ......................20
Lott Brooks
Winston Cochran
Rosa A. liades
Rob Ficlanan
Ron Hayes
David Jones
Jay Karahan
David Kiatta
David Mitcham
Let'sHearFrom You!
Tyrone C. Moncriffe
Anthony Osso
Paul Sr.John
Callus withyoursuggestionson thispublication.
Norm Silverman
Publisher HCCLA @ (713) 227-2404
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Ll oyd W. Oliver
This issue ofour 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
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
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
October / November 2000
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.
Trial consultants helpwith morethan seatingjuries
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 available 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 vari e ty 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
October / November 2000 THE DEFENDER 3
case from the lawyer's perspective. The Trial
Consult ant 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
arc recognizing the value of juror
questionnaires . Not only do these
instruments save valuable time, they provide
jurors with the opportunity to answer
sensitive questions withour having ro do so
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
questionnaire is as much a work of art as it
is a sci entific instrument. The questionnaire
should include very few background
questions, quest ions that will help ro identifY
chall enges for cause, and 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, the answers ro
these questions can tell an experienced,
critical reade r 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 someone who can an alyze this
information and incorporate it inro voir dire
and the pres entation of the case.
Additionally, it is important ro have someone
who can explain the importance of some of
the questions considered "frivolous" ,
irrelevant or intrusive by opposing counsel
or the Court so that the lawyer is able ro
effectively defend or justifY the use of those
questions in the questionnaire.
A defendant never has ro take the witness
stand. While that is not new information
ro anyone reading this, many lawyers assume
that if their client will not testifY, there is no
need for any rype of witness preparation.
Other lawyers, if they have decided that their
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, there
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. They
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 guidance about what to wear and
what not ro wear, when ro stand and for
whom, is essential for this person.
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 assumption. While lawyers spend
their lives inside a courtroom, most witnesses
have no such experience. They often don't
know what ro expect, how to answer, 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 witness stand. We have been brought
up to be cooperative and hel pful. It is
natural to want to give more information
than was asked. We are supposed ro expand
upon our answers in order to make ourselves
understood. Unfortunately, it is also human
nature to answer a question before it has been
asked completely, or fail to li sten to the
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
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 clues
about the person on trial. These people are
often not prepared for tri al, and while their
intent is to support the accused, they may
not know what is helpful and what is nor.
Including them in witness preparation
sessions can easily solve this problem. By
doing so , you can turn a potential problem
into a tremendous asset.
It is widely assumed that the use of Trial
Consultants is only practical in certain,
"special" cases. I absolutely agree. But what
kinds of cases are "special?" If you ask a
person accused of a crime, he will tell you
October / November 2000
thathiscasefits thatdescription. Casesthat
haveanractedagreatdeal of publicattention
wouldcertainlyqualify. Sowould thosecases
that involve sensitive issues, or those rhat
haveahighdegreeofcomplexiry. A"special"
casemayal soincludethoseinwhichalawyer
is inrerested in developinghis presentarion
sryle, usingnewtechniquesand fine-tuning
Theproblemis rhatquireofren,wharseems
a rourine case to a lawyer proves to be far
the lawyer may have anricipated. It doesn't
marter ifrhe issues are everyday marrers ro
thelawyer. Ifthejuryseesrhingsdifferently,
is rroubl ed bytheissues, oriftheyJUSt don't
understand, the case is in big trouble from
the ourser. Often, a different pair ofeyes,
ears, andwayof thinkingcanhelpto identify
areas ofconcern 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. Therearealways problems. Thereare
always issues that can be potentially
disastrous in trial. Thereare always witness
problems. And there are always ways to
overcome these difficulties. In large cases
andsmall,aTrial Consultantwhospecializes
in pretrial preparationcanhelprecognizethe
areasof concernandcorrectthem beforethe
NottOO longago, therewererelativelyfew
Trial Consultants in the United States.
Happily, the field hasgrownand continues
to growbyleapsand bounds. Thegood news
is that this allows more lawyers to useTrial
Consulrants and it allows lawyers the
opportuniryto find theTrialConsultantwho
best fits his uniqueneedsand personalstyle.
It is important that in choosing a Trial
Consultant,thelawyerfind onewirhwhom
he has a good rapport, one who
communicates effectively and freely, one
with whom he can build a bond oftrust ,
and one who views things differently than
he does. After all, the grearest asset aTri al
Consultantcan bring to a case is a different
Another important consideration when
choosingaTrial Consultant is what will be
expected from that person. ~ k the
Ocwber/ November2000
consultantto talkabourwhatheorshecan
offerto assist in thecase. Becertainthatthe
oftheparticularcaseand not tryingtosella
standard package. Notall cases require, nor
Pay careful attention to the way the
consultant presents his orher ideas. 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
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
preparationof yourcase. Sincethereareno
rwo with identical methodsand ideologies,
what works for one may not work for
another. Trying to combine twO very
different approaches can create confusion,
unevenand patched tOgether. Additionally,
a Trial Consultant who helps develop case
themes, prepare witnesses and conduct
pretrial research will have produced certain
results, however, anotherTrial Consultant
employed solely for jury selecrion may be
helping seat individuals whose preferences
and demeanor may not match the case as
developed with rhe help of rhe first
Having outlined some ofthe assistance
Trial Consultantscan provide in helping to
prepareacasefor trial and thetypesof cases
in which a Trial Consultant can provide a
wide variety ofassistance, I will address
possibly the most pressing concern lawyers
have about Trial Consultants. Trial
Consultants are a high-priced luxury and
waybeyond the financial resourcesofmost
clients. Iwon'tlie toyou. AJI ofthosethings
are true. There are certainly some Trial
Consultantswho pride rhemselves on their
tremendous fees. I don't doubr they are
worth the price . But for every Trial
Consultantwho relishesthedistincrion that
comeswith beingsolelyavailabletosociery's
elite, there are many morewho live to help
others, regardlessoftheir financial orsocial
status, who live to practice their art, who
simply lovewhat theydoand want to do it
as much as possible. Some negotiate,some
volunteer, some JUSt can'tsay"no."
Don' t let assumptions about what YOLl
thinkaTrial Consultantcanoffer,whatkinds
ofcases would benefJt from the input ofa
TrialConsultantorprohibitiveCOStS stOpyou
fromseekingthehelpof aTrial Consultanr.
Lookaround. Explorethepossibilities. Talk
to Trial Consultants. It never hurts to ask,
and you may be very pleasantlysurprised .
Whatdotheymean and dotheymakeadifference?
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 are likely ro be explored
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.
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 test, (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 regarding 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 scientific ropic unfamiliar ro
lay jurors - 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
evidence obfuscates rather than leads to an
inrelligent evaluation of the facts. (citation
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 the 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 requirement
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 issue of relevance. In that
sense, the expert testimony mus t be
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
purposes.... 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 whether 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 (which is but one 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 ofgood
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
October / November 2000
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.
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
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 S.W.2d 550
(Tex.Crim.App.- 1996) , the Court decided
the scope of the relevance component of
Rule 702. Relevance was, by its natu re, a
"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.
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 ofassistance 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
ro act as a gatekeeper to det ermine the
reliability of expen evidence and that the
four facrors of Daubert did not necessarily
apply outside the hard sciences.
When addressing fields ofstudy aside from
the hard sciences, such as the social sciences
or fi elds 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 thus, 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. Carmichael, 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
October / November 2000 THE DEFENDER 7
knowledge or experience. The Daubert
of even experienced-based testimony. How
often, for example, does an expert's
experience based methodology produce
"rroneousresults? Issuchamethodgenerally
accepted in therelev:!.I1tcommunity?Would
others in the field recognizc the method or
techniqueas acceptable?
Whatis essential,according[0theCourt,
is that the expert use the same level of
intellectualrigorin thecourtroomasoutside
ofit. A trial court should consider the
Daubert factors where they are considered
reasonable measures ofthe reliability of
expert testimony.
Thereare rwo principlesthatare gleaned
from Kumho: like Nenno, the 702 gateway
functionof thetrialcourtandtheheightened
reliabilty standard apply to all expert
testimony, notJUSt those disciplines ofthe
hardsciences. UnlikeNenno, thestandards
remain thesame, regardlessofthe natureof
the testimony. While there is agreatdeal of
latitude to be afforded trial courtS under
Kumho to decide how reliability is to be
determined, the Daubert principlesmustbe
The following is a list in no particular
orderwhere courtS have considered various
disciplines in the contextofKelly and Rule
702. Someeditorializingis included where
[ rhought appropriate.
1. Eyewitnessexpert testimony
Weatherred v. State,985 S.W.2d 234
(Tex.App.- Beaumont , 1999 pdr grtd.) .
Here, the defendant elicited extensive
tcsrimony from his witnessabout the field.
He supported his 702 hearing claim with
extensive articles, treatises and abstracts of
articles. Over60experts weresummarized
for the bill ofexceptions.See alsoJodan v.
State, 928 S.W2d 550 (Tex.Crim.App.-
1996) (eyewitness expert testimony is
relevant- see above).The PDRgrant here,
given theholdingofNenno, leaves theeffect
ofthis holdinginsubstantialdoubt.Seealso
Nations IJ. State, 944S.W.2d795(Tex.App.-
Austin, 1997).
2. OWlIntoxilyzer
Hartman v. State, 946 S. W.2d 60
(Tex.Crim.App.- 1997). Court holds that
StatemustsatisfyKelly andRule702before
admitting Intoxilyzer results; statute
authorizingadmission ofbreath test results
will notsatisfy 702 requirements.
Emerson v. State, 880 S.W.2 d 759
(Tex.Crim.App.- 1994). HGN approved
under Kelly, by using judicial notice. See
4. DrugAnalysis
Chisum v. State, 988 S.W.2d 244
(Tex.App.- Texarkana, 1998 pdr ref'd). A
drug chemist's testimony approved under
Rule 702. Here, however, chemist testified
the machine'soperation. Notestimony was
elicited about the underlying theory ofthe
spectograph. Court found Kelly satisfied
because chemist testified that ifthere is an
error in the process, the spec[Ograph won't
work.Courtnotesthatdefensefailed [0offer
any challenge [0 the underlying reliability.
While this is not the objecting party's
burden, counsel would dowell not [0 take
the issues ofburden ofproofoutlined in
Kelly, see above, literally. One should be
[0 undermine the theory, ifthe evidence is
available. Courtalso notes thatitwas error
[0 not hold the hearing outside the jury's
presence and not properly allocate the
burdenof proofbuttheerrorswereharmless.
See also Wilson v. State, 854 S.W2d 270
(Tex.App.- Amarillo1993); Williams v. State,
936 S.W2d 399 (Tex.App.- Fort Worth,
1996 pdr ref'd). Durham v. State, 956
S.W2d62(Tex.App.- Tyler 1997pdrref'd)
(use ofdrugchemist [0 determine to what
extent defendant was intoxicated by
marijuanaat time of accidentapproved).
Perez v. State, 925S.W2d324 (Tex.App.-
Corpus Christi, 1996). Court refused [0
applyKelly to thisissuebecauseKelly 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 longeravalid holding
underNenno and Kumho.
6. Reverseorretrograde
extrapolation theoryin OWl
Hartman v. State, unpublished opinion.
Aug. 4, 1999. On remand from the CCA,
see above, Court holds that reverse
extrapolationsatisfiesKelly butwhatwasnot
challenged was either the underlying
scientific theory or the technique, only its
in effect, holdsthat these issues for thejury
ro decide, an analysissimilar to that ofthe
federal courts. Dissent notes the problems
with both theoryand technique.
7 Polymerasechain reaction
(PCR DNAtest)
Aguilar v. State, 980 S.W2d 824
(Tex.App.- San Antonio 1998). PCR
methodofDNAanalysisfound valid under
Kelly. Seealso Campbell v. State, 910S.W2d
475 (Tex.Crim.App.- 1995).
8. MunchausenSyndrome
by Proxy(MSBP)
Reid v. State, 964 S.W2d723 (Tex.App.-
Amarillo, 1998) MSBP - the act of
endangering a child in order to perform
heroicactsofsavingchild'slife- found valid
after extensive Kelly hearing. This case
presents good example ofhow a Rule 702
hearing should be conducted . Should be
considered a blueprint for such hearings,
includingtheoriesofvalidation, etc.
9. ProbabilityofPaternityStatistics
for usein SexualAssaultcase.
Griffith v. State, 976 S.W.2d 241
(Tex.App.- Amarillo, 1998). Approved
10. Hydrocarbonsniffingdogs.
Pitts v. State, 982S.W.2d 175 (Tex.App.-
Housron 11998pdrref'd).Again, likedrug
chemists, a faulty 702 analysis but use
11. Radarguns
Ochoa v. State, 994S.W.2d283(Tex.App.-
EI Paso, 1999). Here, the state attempted
8THEDEFENDER Ocrober/ November 2000
to use the same 702 techniques as in the drug
chemist cases but court here disapproves and
mandates strict Kelly compliance. Rader
guns not approved.
12. RFLP DNA analysis
Kelly v. State, 824 S.W.2d 568
(Tex.Crim.App.- 1992). RFLP approved.
See also Hicks v. State, 860 S.W.2d 419
(Tex.Crim.App.- 1993).
2 For our purposes here, Federal Rule 702
is virtually identical to Tex.Cr.Evid. 702.
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 rul e has been in the civil arena
and primarily direct to plaintiff's personal
injury attorneys. See Merrell Dow v. Havner,
953 S.W.2d 706 (Tex. 1997)(co urt added
to the Daubert factors listed above, the
considerations of whether there are non-
judiciaJ uses of the theory or technique. In
other words, has the technique only been
developed for litigation purposes. See also
E.I du Pont de Nemours v. Robinson, 923
S.W.2d 549 (Tex. 1995).
13 Graphoanalysis
Sosa v. State, 841 S.W.2d 912 (Tex.App.-
HoustOn 1 1992) . GraphoanaJysis rejected
here. There was a total failure by defense
counsel to make any real effort to satisfy Ru Ie
14 Family Counseling expert who
testified about long-term responses to v
iolence and whether victim exhibited
such responses.
Fowler v. State, 958 S.W.2d 853
(Tex.App.- Waco J 997 pdr grt'd). Court
rej ects use of such test imony here because
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
psychologi st who offers opinions of harm to
children based on his analysis of photographs
in the possession of the defendant. Case
turns on several issues, 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 analysis . State
does advance argument that while testimony
might not have satisfied Kelly and Daubert,
it did satisfy Nenno. Court rejects argument.
While courts have adhered to this
procedural requirement of an out of the
presence of the jury hearing with (he
proponent of the evidence havi ng the burden
of proof, that adherence has largely been in
name only. Most courtS that have considered
the issue have ruled (he failure to comply
harml ess error. See e.g. Chisum v. State, 988
S.W.2d 244 (Tex.App.- Texarkana, 1998 pdr
-FormerAssistantDistrictAttorney,Harris County-
OctOber / November 2000 THE DEFENDER 9
An HCClAVoters'Guide
While not as high profile as the national
debates to determine which politico will
aseriesoflive comt-arisonsbetween rhe tWO
remaining candidates for Harris County
DistrictA((orneyis provingimportantif, for
noorherreason, itchallengesvoters10 think
issues in ourlocal criminal justicesystem.
"I believechangesare needed in rheHarris
Counry District AtlOrney's Office 10 bring
it into the 21" century for our community
and in the eyes ofthe world," Democratic
candidateJim DougherryIOld TheDefender,
following a Thursday, September 7, 2000
dinner debate between Dougherty and
RepublicancandidareChuck Rosenthal. "]
wanr the Harri sCounry 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 afocus upon theshorr and
long-term effects ofits acrions," Dougherry
by the Pasadena BarAssociation
and held at the Pasadena
CountryClub, 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
contrasrtheirpositionson issues
such as rhedeath penalt)!(borh
are for it, although Dougherty
would favor a resrrucruring of
the law 10 include an option of
dispute resolurion, and
communiry involvement. The
candidates will meet in a
Channel 13 television studio
debate in OClOber 2000, which
is scheduled ro air before
Elecrion Day on Tuesday,
November7, 2000.
[n Pasadena, as in othercampaign slOpS,
Rosenthal used biblical language10 express
his supporr for the current dearh penalty
system in Harris County. The 200-plus
audience,withalargecontingencyfrom the
Harri s 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
eyebrowsat anumberofcampaign
appearances with his off-color
comments about whar he enjoys
mosr about being a proseculOr. "I
like doing bad rhings ro bad
people," he has IOld audiencesona
Whether ir is truly fair 10 label
all individuals accused ofbreaking
thelawas "badpeople,"orwhether
an informed elecrorate mighr
actuallyrecoil from acandidatewho
expresses pleasure in doing "bad
things" ro orher human beings,
thereis noquestion that Rosenrhal's
rhelOric has struck a cord with his
Republican supporters. Most
observersagree thatunlesssomethingbizarre
happens between now and Election Day,
Rosenthal's starus as a Harris County
Republican in apresidentialelectionyear has
all but assured that he will succeed John
Holmes as rhe Counry's next Disrricr
Bur before the voring public h"r,ds
Rosenthal the keys 10 thecorneroffice, The
Defender has requesred rhat he and
Dougherty an swer a series of wrirren
quesrionsfrom rhe HarrisCountyCriminal
Lawyers Associarion. As you may recall,
Rosenrhal'sanswerswerefirst printed in The
Defender (formerly Docket C a ~ earlier rhis
year, alongsidetheanswers from Rosenthal's
Republican primary opponents. For this
edirion, The Defender gave Rosenthal an
opporruniry10 changeorupdatehisanswers,
while Democrar Dougherty was also asked
10 parricipate in our survey. Additionally,
thecandidateswereasked 10submirasingle
quesrion for theiropponent10 answer. The
survey questions and answers, plus the
questions and answers the candidates
exchanged between themselves follow. (A
prinrdebate, ifyou wilL)
Interesringstuff, ro say rhe leasr.
October/ November2000
1. Why do you want to be Harris Counry
District Attorney?
Dougherry: The criminal jusrice sysrem
of Harri s Counry needs improvemem and
rhe Disuicr Anorney is rhe officeholder who
can immediately initiate needed changes
within his or her comrol and best advocate
for changes outside his or her comro!. I wam
to see changes made soon and it appears a
De mocrat is needed to do it. My
background includes: criminal prosecution
and defense, essential for balanced decision-
making berween victims, offenders and the
public; a C.PA. , us e ful for office
administrat ion; and mediation, desirable for
seeing that trial s alone are not the only tool s
the DA's offi ce uses . I seek a high qualiry
justice system and will do all I can ro achieve
one that will be so recognized in this
communiry, the coumry and the world.
Rosenthal: To be abl e ro continue the
excellem prosecutorial standards established
by Mr. Holmes ands his predecessors, Mr.
Vance and Mr. Briscoe.
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.
There is a need to engender respect from
that office for all componems and pl ayers
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 anitudes. There is
a need for the DA's office personnel to see
themselves in a larger role than JUSt trial
anorneys and suppOrt sraff who prosecute
and punish bad guys. The office needs to
incorporate educa tion of the public,
involvemem in the 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 ally, needs to be assured that justice is
fairly and equally applied.
Rosenthal: I beli eve that we need to
remain a utonomous from any outside
influences. We need ro cominue ro pI" ,secute
cases based on rhe relative strength of the
evidence and nothing else.
3. Which criteria are most important in
determining whether, in a particular case,
the Di strict Attorney should seek the death
Dougherry: Is guilt absolute? Will the
death penalry in the particular case deter
anyone other than the offender) In looking
at the offender, is the staturory alternative
for capital murder, now life with a 40-year
minimum, sufficient to assure safery ro the
communiry? Is the offender a danger to
others in prison to a degree that he is unlikely
ro be capable of being safely contained? I
seek and support life-without-parole as a
third option for capital murder 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
special issues would be compelling ro an
average jury that th e death penalty is
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 the Republican party though.
My prosecution criminal law experience is
from the federal side as opposed ro the Harris
Counry DA's office, which differs from the
DA's and the judges. I beli eve it gives me a
broader perspecti ve than those coming up
solely through the local ranks. [was an
advisory anorney with the Criminal Division
of the U.S. Department of Jus tice in
Washington, D .C. for four years and an
Ass istam U.S. Atrorney in Houston for six
years. My defense criminal law practice has
been in federal and state court. I am Board
Certified in Criminal Law and have been for
more than 20 years . I have rraveled
extensively and learned the ways in which
others view our communiry and its criminal
justice sysrem. Politically, I am active on the
Democratic side, which I see as open to all
for participarion and dialog and I share thar
philosophy. I think an outsider is what our
county needs right now to assure public
dial og on criminal justice maners. Crime
will be prosecuted and criminals punished
regardless of parry affiliation.
Rosenthal: I'm a political "outsider" - I
have never before run for office or been
politically active. The Di strict Atrorney
should be free from any a ppearance of
political motivations in the execution of his
duries. The public expects and deserves
justice not politics in the pursuit of criminal
convicti ons.
5. What (if any) active steps should an
individual prosecutor take to insure that a
conviction is not procured on the basis of
illegal evidence or police misconduct?
Dougherry: The prosecuror needs ro know
his or her case as early in advance of tri al as
possible. In int ervi ewing witnesses and
investigating officers, the prosecuror needs
ro remain vigil ant for potenrially exculparory
evidence and ask necessary ques ri o ns of
witnesses and officers. When pre- rrial
motions seek discovery or suppressi on of
evidence, rhe prosecutOr needs ro ask the
right quesrions of rhe right peopl e and
respond ro the motions forrhrighrly. \X/h en
the prosecutO r himself or herself is not
convinced rhere is evid ence from which the
judge or jury can convict , he or she should
dismiss rhe case.
Rosenthal: All evidence and all witnesses
should be scrutini zed ro be certain rhar it is
accurate. This includes asking open- ended
questions ro witnesses before an issue is set
for trial ro be sure of that person's candor. It
should also include asking defense counsel
ifhe/she has any info rmari on contrary ro the
police investigarion .
6. For which criminal offenses (if any)
should the Harris Counry District Attorney
have a policy of not recommending a
sentence of probation?
October I November 2000 THE DEFENDER 11
Dougherty: The policy may evolve while
am in office, but initially community
supervision recommendations would be
permissible in all cases where it is legally
authorized . Those recommendations
however would have authorization levels
higher than the trial Jttorney in certain rypes
of cases. There would likely be more use of
community supervision and pretrial
divers ion with supervision under my
admini s tration s ince I favor greater
rehabilitation efforts on nonviolent offenders
in the community.
Rosenthal: Supervisory control of plea-
bargaining should continue 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
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 punishment,
prospect for rehabilit ation, deterrence,
acceptance 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 recommended
sent c nces less rhan rhe norm can be
considered more ofren if rhere is no harm or
danger to the communiry.
Rosenthal: Vicrims should always be
consulted ; that said, all recommendations
should be based on the evidentiary srrengrh
of the case.
8. In the upcoming term, which areas (if
any) of the Di strict Attorney's budget and/
or resources should be trimmed, expanded,
or reallocared?
Dougherty: Specific changes need to await
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 s tronger rehabilitative and crime
deterrent programs.
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 fraud and
white-collar crimes.
9. In prosecuting the "War on Drugs,"
under what circumstances (if any) should a
prosecutor seek rehabilitation as opposed
to jailor prison sentencing?
Dougherty: Early identification of
offenders needing drug, alcohol and mental
health treatment and rehabiliration should
be encouraged and necessary programs made
available. Firsr offenders with user quantities
would be prime for rehabilitation. When
quantities are for di srribut ion and sal 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 remain a
firm believer thar some jail time is a very
good motivarional tool in encouraging
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 County; to instill
respect for criminal procedure and process
in the Assisrant District Artorneys and the
office, including respect for defendants and
their attorneys; to keep victims and
complainants informed of the process and
dispositions, to involve Assistant District
Attorneys more-so in the sentencing and its
success or failure; ro promore more
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 justice 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 Distri ct 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 rhe 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 the
independence of the office under my
adminisrrati on. I seek a high qualiry office,
one that encourages rhe desirabiliry of a
reciptocally high quality defense bar, and an
independent, well -qualified judiciary. The
office will be more open to the public,
participate more in public policy forums, and
encourage input and involvement of citizens
and organizations in communiry
supervision , jobs creation , and program
Rosenthal: Remain beholding to no one.
12 THE DEFENDER Ocrober / November 2000
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?
11 am - 12 pm. tues.-thurs.
11 am - 2am. fri.
Gpm - 2am. sat.
Rosenthal Responds:
I am assured by the people who made
those allegations that they will vote for me
in November. The allegations remain
unsubstantiated. Assomeone 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.
closed. sun. &mono
You once said in an interview that you and
I gave before the 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?
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 tical.
ridentify 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 and
what is not. Johnnie Holmes served 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 lopsided now,
with every District and Counry Judge being
Republican, that I think some balance
should return.
As Di strict Attorney, I will keep criminal
law issues on the public agenda, encourage
dialogue and discussion, and keep my ear ro
the ground on needed changes.

Ocwber / November 2000
The HydeAmendmentallowsvindicated criminaldefendentsthe right toseekattorney'sfees
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 ofwrongful federal
prosecutions? While some argue,
"[d)efending against [a criminal prosecution)
has always been deemed to be one of the
cOStS of American citizenship,'" others
express the belief that no power should
remain unchecked.
In response ro public outcries for a device
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
Equal Access to Justice Act (EAJA). 2 The
EAJA is a law that authorizes the award of
attorney's fees ro prevailing civil litigants
against the United States, if the position of
the government was not "substantially
justifled. "l As Rep. Hyde stated, "[w)e have
a law called the Equal Access to Justice Acr,
which provides in a civil case if the
Government sues you , and you prevail.. .you
are entitl ed [0 have atrorney's fees and costs
reimbursed . That is justice.. . . Now, it
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 the Commerce, Justice , and
State Departments. After a thirty-minute
debate, the House of Representatives passed
the new legi slation by a bi-partisan vote of
340-84. The creation and passage of the
Hyde Amendment has been linked to three
main facrors: I) frivolous or malicious
prosecutions that escape punishment, 2) the
Departme nt of Justice's adoption of the
position that prosecu tors (federal) are not
subject [0 ethical rules of the states in which
they are licensed, and 3) while the EAJA
applies ro civil litigants, nothing is in pl ace
to prot ect criminal defendants from
wrongful federal prosecutions.
Des 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 higher
one: the defendant must prove that the
position of the government was "vexatious,
ftivolous, or in bad foith." " Furthermore,
language was later added to the Hyde
Amendment that stated the "burden of
proof" from the EAJA did not apply to the
Hyde Amendment.
The HydeAmendment
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
the enac tment of this Act, may award to a
prevailing party, other than the United
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
the court finds that special circumstances
make such an award unjust. Such awards
shall be granted pursuant ro the procedures
and limitations (bur not the burden of proof)
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 parte
and in camera (which shall include the
submission of classified evidence or evidence
that reveals or might reveal the identity of
an informant or undercover agent or matters
occurring before a grand jury) and evidence
or testimony so received shall be kept under
seal. Fees and other expenses awarded under
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
appropriation. No new appropriations shall
be made as a result of this provision. "
Commentarors opine that the final
version of the Hyde Amendment resembles
"a compromise berween the Depanment of
Justice and the original proponents of the
Prior to its passage, both the
Department of Justice and federal
prosecurors heavily criticized the Hyde
Amendment. Opponenrs ro the amendment
argued the ame ndment was "unduly
burdensome and served as an unlawful
interference with their [federal prosecurors)
Countering the opposition,
proponentS of the legislation observed that
"the Hyde Amendment [will) put into place
a much-needed vehicle for vindic a ted
criminal defendants ... 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
wrong, ... frivolously wrong. [Prosecu tors)
keep information from you that the law says
they must disclose . ...They suborn perjury.l l
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 ueen
establi shed. 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
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. 2d 667, 673-7 5 (WD. Mich.
1998); see also United States v. Troisi, 13 F.
Supp. 2d 595, 596 (N.D. W Va. 1998) .
October / November 2000
What is a "criminal case?"
The Hyde Amendmenr applies ro "any
criminal case (orher rhan a case in which rhe
defendanr is represenred by assigned counsel
paid for by rhe public) pending .. . 14 The Hyde
Amendment does not apply to courr -
appointed lawyers, wherher rhey are in privare
pracrice or wirh rhe Federal Public Defender's
The Coun, in In Re Grand jllry Subpoena
Duces TeCtlm , held rhar issues involving a
grand jury subpoena, such as a subpoena
duces cecum, consriture a criminal case for
purposes of rhe Hyde Amendmenr. 31 F
Supp. 2d 542, 543-44 (N.D. 1998).
Yer, rhe Coun in United States v. Holland,
srared in dicra rhar a criminal case is limired
ro proceedings rhar follow rhe parry's arresr
or indicrmenr. 34 F. Supp. 2d 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
Srares . . . "15 While rhe language is cl ear rhar
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 wherher rhe
dismissal is wirh or wichour prejudice. Un ited
States v. Gardner, 23 F. Supp. 2d 1283 , 1290-
91 (N .0. Okla. 1998); see also Ranger Elec.
Communs., Inc., 22 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 Subpoena Duces Tecum, 3 I
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 prevailed.
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 prevailed
when ir loses ar rrial and wins on appeal, bur
a parry has nor prevailed when ir wins ar rrial
and loses on appeal.
Also, rhe Courr in United States v. Wade
held rhar rhird-parry intervenors in an
abarement acrion are nor considered
prevailing parries because rhey were noc
panies ro rhe underlying criminal case. 93 F.
Supp.2d 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
limirations according ro rhe EAJA. 17 The
EAJA limirs reasonable anorney's fees to $125
per hour, unless cosrs of living increase or
"special circumsrances" jusrify a higher
award . 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
What are "other litigation expenses?"
Thus far, one coun has held rhar "expenses"
include rhe cosr of preparing and filing rhe
peririon. Ranger Elec. Communs., Inc. , 22 F
Supp. 2d ar 676. However, rhis does nor mean
rhar rhe only recoverable lirigarion expenses
are rhe cosrs of preparing and fli ing a peririon.
Since, rhe Hyde Amendmenr incorporares rhe
procedures and limirarions of rhe EAJA, ir is
foreseeable rhar one mighr be able ro recover
"orher lirigarion expenses" 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
; rhe "reasonable" cosr
of expen witnesses
, 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 .
Who has the burden of proof and what is
the standard?
According ro rhe Hyde Amendment, rhe
party seeking ro recover arrorney's fees has rhe
burden of showing rhar rhe 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. Troisi found rhar rhe burden of proof shifts
ro rhe peririoner and rhe "vexarious, frivolous,
or in bad fairh" srandard replaces rhe EAJA
srandard of "subsranrial jus[ificarion." 13 F.
Supp. 2d 595, 596-97 (N.D. W.Va. 1998).
The COUf[ in Holland srared rhar rhe
peririoner has rhe burden of showing by a
preponderance of rhe evidence, rhar rhe
governmenr 's posirion was "vexarious ,
frivolous , or in bad fairh. " 34 FSupp.2d ar
358. Therefore, rhe peririoner does nor have
to show rhar rhe governmenr was nor
"subsranrially jusrifled." !d.
Several courtS have defllled rhe words
vexarious, frivolous, or in bad fairh. The
following are some examples:
- "[wjirhoU( reasonable or probable cause
or excuse,"24
- "unreasonable .. . or wirhour foundarion,
even rhough nor broughr in subjecrive bad
fairh . .. eirher intenrional or reckless disregard
of rhe arrorney's duries ro rhe court,"25
- "lacking jusriflCarion and inrended to
harass. "26
- "of lirrle weighr or importance,"27
- "having 110 basis in law or facr .. lighr,
slighr, sham, irrelevanr, superfi cial. "2"
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 governmenr is "vexarious,
frivolous, or in bad fairh, " rhe Hyde
Amendment permirs courrs to "receiv e
evidence ex pane and in camera (which shall
include rhe submission of classified evidence
or evidence rhar reveals or mighr reveal [he
identity of an informant or undercover agenr
or maners occurring before a grand ju ry) .. ." .I I
Wirh express permission from rhe language
of rhe amendment irself, courrs have
examined confid enrial and privil eged
documents from rhe Inrernal Revenue
Service, rhe Deparrment ofJusrice, and orher
federal agencies. Gardner, 23 F. Supp. 2d a[
1297 -98; see also United States v. Holland,
1999 WL 321555, 6 (E.D Va. May 18,
1999) .
October / November 2000 THE DEFENDER 15
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 ... byappropriation . . . "32
-any governn.ent agency (e.g. the
Department of Justice, Lht' United State's
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
321555 a( 9.
the HydeAmendment:
To have standing, the individual must
have a net worth of under $2 million, and
corporations or ocher organizations muse
have a nee worth of under $7million and 500
or fewer employees.
Existence of Special Circumstances
That Would Render Award Unjust
Amidst all the language of the Hyde
Amendment lies an important limi(a(ion:
the court may decline attorney's fees ro a
prevailing criminal defendant if "special
circumstances make such an award
Unfortunately, no court has been willing to
venture into the uncharted waters in an effort
ro define "special circumstances." One can
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.
Time Limits co File a Claim under the
Hyde Amendment
The petition to recover attorney's fees
under the Hyde Amendment must 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
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.2d at 674-75.
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 ofAppellate 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
appeal withi n 10 days afrer the distric( court
has entered its order. FED. R. CIY. PROC.
4(b). Ye(, the Court of Appeals in the Fifth
Circuit held, "" Rule 4(a) governs an appeal
ftom a district court'S ruling on a motion
filed under the Hyde Amendment. United
States v. Truesdale, 211 F. 3d 898, 902-03
(5,b Cir. 2000).
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.
Numerous courtS in hearing Hyde
Amendment claims have held that the
absence of bad faith is not a bar ro recovery
of attorney's fees. See Holland, 34 F. Supp.
2d at 360; Gardner, 23 F. Supp. 2d at 1293;
Ranger Elec. Communs., Inc., 22 F. Supp. 2d
at 673-74,676; Troisi, 13 F. Supp. 2d at 596.
However, statements made from both sides
during the debate on (he floor suggest (hat
the substantive standard should be a
subjective oneY
F.3d. 898 (5,h Cir. 2000).
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
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 appeal period 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
a showing that the underlying prosecution
was vexatious, frivolous, or in bad faith.
After the district court's denial ofatrorney's
fees, appellants filed a Notice of Appeal
rwenty-nine days after the district court's
order was entered. The Court begins its
analysis by first determining whether the
appellant's Notice ofAppeal 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, ... the notice of appeal. .. must be filed
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
(he district Courr within 10 days after. .. the
entry of either (he judgment or the order
being appealed ... . " Fed. R. App. P.
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 ofAppeals
for the Tenth Circuit held that Rule 4(b)
governs an appeaJ from a district coun's
denial of a motion filed under the Hyde
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
16 THE DEFENDER Ocrober / November 2000
that "Rule 4(a) governs an appeal from a
dist rict coun's ruling on a motion filed under
the 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
maner 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 ... does not implicate
the movant 's liberty interest. .. rhe interesrs
it implicares are identical to rhose implicared
by a morion for attorney's fees under 28
U.s.c. 2412, the Equal Access to justice
Act (the "EAjA") , the 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 under the Hyde
Amendment is equivalent to a morion under
the EAjA. 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 ofAppeall from the denial
of such motion should differ depending
upon whether the government's potentially
offensive litigation strategy was employed in
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
limitations ... provided for an award under
section 2412 of title 28, United States
Code.") and the non-existence of legislative
intent to the contrary.
"Finally, it could prove probl ematic for the
Government ifwere we to hold that a motion
fil ed under the Hyde Amend ment is part and
parcel of rhe underlying 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 ... we are
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 analogizes 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
cannot imagine thar the Congress intended
such a result and are unwilling, absent clearer
statutory direction, to establish precedent in
this circuit lending support to such an
ou tcome. If Congress had indeed desired
these 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
fees under the Hyde Amendment is subject
to appellate revi ew 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 their finding.
Right to Discovery and a Hearing
In addition, the appellants in this case
attempt to argue that the Hyde Amendment
"entitles them to discovery and a hearing as
a marter of right." ld. at 906. However,
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 neither was requested.
"To determine whether or not to award
fees and cOStS under this section, the Court,
for good cause shown, may receive evidence
ex parte and in camera. . . and evidence or
testimony so received shall be kept under
sea\." The Hyde Amendmenr, 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 the claimant to have access to evidence
except such evidence which is confidential,
and such evidence is to be presented to the
Court 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
its discretion when it deni ed rhe appellants
an opportunity for a hearing or discovery.
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, "[tl he 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 claims
made under the Hyde Amendment as long
as the movant proves that the position of
Ocwber / November 2000 THE DEFENDER 17
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, frivolous, 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 "vexatious, frivolous, or in bad
faith." lQ. at 910. Ultimately, the Court
affirmed the decision of the district court.
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 the D.O.J.'s standards, as
published in the United States Attorney's
Manual (USAM), are helpful in establishing
a claim under the Hyde Amendment. The
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
and ... the consequences for individual
citizens. A determination to prosecu 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 accused 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
principles ... serves two important purposes:
ensuring the fair and effective exercise of
prosecutorial responsibility ... and promoting
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) the person is subject to effective
prosecution in another jurisdiction, or
3) there exists an adequate non-cri minal
alternative to prosecution.
Section 927.230 is an expansion ofsection
927.220. This section lists seven
considerations that federal prosecutors must
evaluate when determining if a substantial
fed eral interest is present. Those seven
considerations are:
1) federal law enforcement priorities
2) 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 Hagemann, Cathy
Herasimchuk, Michael Ramsey, Barbara
Smith, A. A1exzandra Taylor, Greg Waller
Wisconsin Lawyer, Fighting back: Remedies
for thewrongfully prosecuted?, Vol. 7 1, No.9,
September J99S.
18 THE DEFENDER 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:
0517metbgambling.htm, Bookies' case may pay
offfor gambling: Appeals Court ruling
improves offshore bettors' Courtroom odds,
attorney says, May 17, 1999, article by Bill
Lodge. Hyde Amendment
Makes Violations Costly - Win At All Costs
series, December 13, 1998, anicle by Bill
1 See Elkan Abramowitz & Peter Scher, The
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, the idea came about in order to
protect members of Congress and their staff
from wrongful federal prosecurions.
Represemative Joseph McDade (R-Pa) was
acquined of bribery and racketeering charges
in 1996 after an exhaustive eight-year
crimin 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 prosecu tions.
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, 1997) (statemem ()f Rep.
5 See Dick Deguerin & Neal Davis, 1fThey
Holler, Make 'Em Pay ... The Hyde
Amendment, THE CHAMPION 30,
SeptemberlOccober (1999).
6 See Pub. L. No. 105-119, 61 7, III
Stat. 2440, 2519 (1997).
7 See id.
9 See Joseph F. Savage, Jr. & Geoffrey M.
Scone, Recovering Attorney's Fees After
Wrongful Federal Prosecutions: New
Amendment Opens the Door, 6 WH ITE-
COLLAR CRIME REP. I, 1-2 (1998) ; see
aLwThe "Ethical Standards for Atcorneys for
the Governmem," which was codified at 28
U.s.c. 53 0B (J 999), and requires
attorneys for the fed eral government to
follow the ethical rules of the state in which
they practice.
10 Abramowitz & Scher, supra note I at
II See id.
12 House Backs Measure Exposing
Government to Attorney's Fee Awards in
Criminal Cases, 82 CRIM. L. REP. 1019
(1997) .
143 CONG.REC H7786-04, H7792
(daily ed . Sept. 24,1997) (statemeI1( of Rep.
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 justice Act, I 19 A.L. R. Fed . 1.
20 See Photo Data, Inc. V. Sawyer, 533 F.
Supp 348 (0. D.C. 1982) ; see also
Massachussetts Fair Share v. Law Enforcement
Assistance Admin. , 776 F.2d 1066 (D.CCiL
1985) (duplication fees).
21 See Walton 11. Lehman, 570 F. Supp. 490
(E.D. Pa, 1983) .
II See Nat'l Ass'n ofMfts. V. u.s. Dept. of
Lab., 962 F. 2d 191 (D.D.CI997).
23 See supra note 20.
24 United States V. Reyes, 16 F. Supp. 2d
759,761 (S.D. Tex. 1998); see also Gardner,
23 F. Supp.2d at 1293; Holland, 34 F. Supp.
2d at 360.
25 Gardner, 23 F. Supp. 2d at 1293.
2(, Holland, 34 F. Supp. 2d at 359-60.
27 Reyes, 16 F. Supp 2d at 761; see also
Holland, 34 F. Supp. 2d at 359-60.
28 Holland, 34 F. Supp. 2d at 359-60.
~ See Troisi, ) 3 F. Supp. 2d at 596; see also
Ranger Elec. Communs., Inc., 22 F. Supp. 2d
at 676.
30 Reyes, 16 F. Supp. 2d at 76 1.
31 Supra note 6.
32 Supra note 6.
33 See supra note 3.
34 Supra note 6.
35 See jackson v. Bowen, 807 F. 2d 127 (8,h
Cif. 1986).
36 See supra note 3.
37 See Roben J. Martina, Frivolous Appeals:
The Uncertain Federal Response, 1984 Duke
L.J. 845,850.
38 143 CONGo REC H7786, H779 1
(daily ed. Sept. 24, 1997) (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 attorney's fees ... What if Uncle
San sues you, .. . but they are wrong. They
are not JUSt wrong, they are wi ll fully
wrong . .. you should be entitled to your
anorney's fees reimbursed and the COStS of
litigation .") ; see also LEGISLATION
FREE LAWYERS, Baltimore Sun, Ocr. 24
1997, at 12A, ava il ab le in 1997 WL
5535997 ("What is your remedy if not this
for somebody who has been unju stly,
maliciously, improperly, abusively tried by
the government, by th e facel ess
bureaucra ts''') (quoting Rep. Hyde).
October / November 2000 THE DEFENDER 19
49 San Jacinto'Houston,Texas77002'(713)7552700
Nancy H. PlaIt, Director
Mike Enax,AssistantDirector
August28, 2000
HarrisCountyCriminal Lawyers Association
P.O. Box22773
DearMr. Frankof!:
On behalfofthe Harris County Community Supervision and Corrections Department, we would like to
express our sincere appreciation for your association's contribution in the fonn ofa scholarship for a
probationer. This scholarship money has been awarded to a worthy recipient and is being used as
intended,to helpservetheneedsofclients.
RoshawnnaMuse, the recipient is registeredatHoustonCommunityCollegeandplanstoseekacareeras
a medical assistant. Enclosed you wiil find a letter from Ms. Muse. Your dedication to helping
probationersachievesuccessis obviousby the generosityyouhave shownwiththisscholarship.
We lookforward to working with your association in all matters ofmutual concern. Please feel free to
call upon us whenneeded.

NancyH. Platt, Director

RoshawnnaMuse August28,2000
Iamwritingthisletterto thank:yousomuchforallowingme this
opportunitytobettermylifeformychildrenandmyself. Ifitwerenotfor
thebeginningthatyourassociationhasgivenmeI wouldnothaveknown
howtostart.Maybewouldhaveneverstarted. So againthankyousovery
20 THEDEFENDER Ocrober/ November2000
Phil Baker - Evading Arrest In th e
NewTrial granted for insufficient evidence
RogerBridgwater- Murderin the230th
District Court.
JackCarroll- Prostitution (Entrapmenr)
in CCCL# 14, Possessi on of Marijuana in
CCCL# 10.
DaveStiller- Theft in CCCL#5.
Danny Easterling - OWl (No Test) 10
CCCL#S, OWl (NoTest) in CCCL#4.
PaulSt.John- Robbery(Habitual) in the
185[h District CourL
Rick Reed - OWl (No Tes t ) In
Jim Sullivanand NancyBotts- Assault
in the 31 5th District CourL
Robert Flynn and WernerVoight- Two
codefendanrs, Aggravated Robbery in the
337th Disrri ctCourt.
Gilbert Villareal - Aggravated Robbery
(Habitual) in the 184th District Court.
DavidWyborny- Theft inCCCL#Sand
Theftin CCCL# II.
Jonathan Gluckman - Deliver y o f a
Conrrolled Substance in the 339th Di strict
COUrt , Carrying a Weapon in CCCL# 13
and CriminalMischiefin CCCL#2.
MichaelMonks- FelonyOWl (NoTest)
in the ISOth Di strict Court.
TheKiam Building
929Preston, Suite200
Receptionist, Copier & Fax Included
ClosetoCourthouseSecured Entry
ContactJerome Godinich
Russell Webb - CCL#7 on a Cl ass A
Criminal Mischiefwhere the complaining
witness testified he saw client key his car.
DuringvoirdireRussell asked the panel how
manyhad theirvehiclesvandalized (7of 20).
Thenheasked howmanysaw thedirtydeed
being done (0 of7). Evidence ofa grudge
against my client by CWo
Dave Stiller- an acquittal in CCL#S o n
a no-test DW1. Two-day trial; 35 minute
DavidMitchamfivejuryverdictsina row
between April 22 andJune 18! Two back-
to-backnotguilty OWls-one test; one no
test-in CCL#sI2 and 15. A 2nd degree
felonyrobberyreduced by thejurytoaCl ass
B misdemeanor theft, with judge-ordered
probationin the 183rd;an acquittalof a"3-
time ex-con, extradited fugitive, habitual
offender " after a week-long trial on
aggravated assaultwith adeadly weapon in
the 263rd and finally, a DWr acquittal in
CCL#7. Phew
John Petruzzi - CCCL#2 on a non-
domesticassaulL crw hadallegedlysuffered
abrokenjaw. Coincident ally,ADA suffered
a"bruised ego"when thejurycamebackin
less than 20 minutes.
Karen Barney- Hung jury in a Sexual
Assaultof a Child case in the 208th,which
resulted in a(8-4for notguilty) . Defendant
then rejected several offers including a
mi sdemeanor defer red; the State dismissed
thecaseon dayoftri al round #2.
Neal Davis- CarryingaWeapon-Motion
to Suppressgranted in CCCL#2
Matt Henessey - Motion to Suppress
grantedon 10kilosof cocaine-GrantCourt-
StateappeaJed-Courtof Appeals affirmed.
Da.ina O'Kane- Daina writes: " I had a
case plead today for misdemeanor time
served. Why is that a win' Original offer :
25years (habitual felon) . When pushcame
to shove, enhancement s abandoned and
reduced to misdemeanor. I'd call that a
victOry in my book
" Sowould we!
Norm Silverman - Two motions to
suppress granted: 1st degree crack cocaine
in the24S
and 750Ibsofweedin the 182"J.
AbbyWeinhauer - Motion to suppress
granted 100 lbs ofweed in t he 338"' .
Jay I(arahan
Attorney- Mediator
700 PostOakTower
5051 Westheimer
Houston,Texas 77056
713/622-8777 Fax
Ocrober/ November 2000
We advocatethatapaid-in-fullattorne,isa client'sbestdefense
Refer a DWI bond and receive a free DWI video We testify at bond reduction hearings
Open 24 Hours Prompt Courteous NotaryAvailable BilingualStaff
Credit CardsAccepted TermsAvailable Free Parking
John, Shaun, Carol, Shannon, Shelby, andChris
B09 Houston Avenue Houston, Texas77007
THE DEFENDER October / November 2000
929 Preston, Suire 200
Houston, Texas 77002
PERMIT NO. 11500

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