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CONTENTS 4:: Upcoming ClE Event Schedule 5 :: 6 9 A Word from our President
CONTENTS 4:: Upcoming ClE Event Schedule 5 :: 6 9 A Word from our President

CONTENTS

4:: Upcoming ClE Event Schedule

5 ::

6

9

A Word from our President

by JoAnne Musick

:: Winning Warriors

:: HCClA News Roundup

:: OWl Blood Defense

11

Part I: Initial Client Contact and Discovery

15

:: Have You Heard?

by Kelly W Case

You May be Eligible for Reimbursement by the Criminal Justice Act for Expenses Incurred in Defending Malpractice Actions .

by Yolanda Coroy

16

::

Your Honor, May I Take the Dog on Voir Dire?

 

Evidentiary and Constitutional Objections to Dog-Scent Lineups

by Barbara Drumheller

21

:: Recouping Costs of Executing a Bail Bond

 

When the Motion to Surrender the Principal is Not Based on Reasonable Cause

by John Burns

22

:: Variances Are Not Departures by Another Name

24::

by Marjorie A. Meyers

You, Too, Can Win a Parole Revocation Hearing

(and Look Good Doing It)

by Sunshine L. Swallers

26 :: HCClA Addresses New OWl Diversion Program

A Letter to the Judges & Press Release

by JoAnne Musick

28:: HCClA Co-Sponsors Community Service Project

Teen Dating Violence Awareness

29

31

by Wendy Miller

:: The Death of Oral Argument

:: Investigative Corner:

by Patrick F McCann

Digital DNA

by Jim Willis

THE DEFENDER

CD

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stake· hold· er [steyk-hohl der] a group that has an investment, share, or interest in something, as a business or industry

a word from our

in something, as a business or industry a word from our Presi~el1t JaAnM rf!U6ick Clearly the

Presi~el1t

JaAnM rf!U6ick

Clearly the defense bar is a stakeholder in the criminal justice system; we have an investment and interest that will not be ignored. Yet the courts and district attorney continue to deny full participation of all stakeholders as they seek to exclude our bar from participation. Read the The Justice Management Institute's (1MI) preliminary report on our Harris County criminal justice system and you will see that even they recognize us as necessary stakeholders and further recommend that we hold a seat on a criminal justice council.

On July 14,2009, our elected officials voted "in accord with the report of recommendations by the 1MI" and created the Harris County Criminal Justice Coordinating Council and the Office of Criminal Justice Coordination; however, they failed to include all stakeholders as they excluded the defense bar from the council. The JMI study clearly states the council should include the courts, the District Clerk's office, the District Attorney'S office, the defense bar, the Sheriffs office, and the County Attorney's office.

Perhaps our elected officials would love nothing more than business as usual, ignoring the defense bar. Perhaps they didn't believe the voters when they said, ''No More Jails." Perhaps they will find themselves out of office in the future. One thing is clear:

taxpayers are tired of business as usual. No longer does a "tough on crime" campaign carry the day to re-election. The voters and taxpayers want change. And, in order to effect change, business as usual must change. The defense bar can no longer be ignored when it comes to developing new ideas and new solutions. As a legitimate stakeholder, we must participate and be heard.

Yet instead we hear, "I put on my defense attorney hat when

looking at this issue" or "when I was a defense

statements are akin to me saying, "When I was a prosecutor

It just doesn't work that way. One cannot step out of their own role and play another. That's a conflict of interest. As much as one stakeholder may want to think they can play two roles at the same time, it is virtually impossible for any prosecutor or judge to simply put on their "defense attorney hat" and come up with the defense perspective. It's great to have insight based on past experiences, but until issues are openly and honestly discussed with all stakeholders, the decisions made are short-sided.

lawyer

". These

" .

Take for example the recently created DWI diversion program. Two stakeholders, the D .A. and the judiciary, decided how cases would be handled when entering the program and how punishment hearings would proceed. One major problem: it's deferred adjudication (or at least potentially). Under the D.A. 's new program, a plea is entered and a jury is waived, community service is undertaken, and in the event of default punishment is

.sounds like deferred to me.

The problem is the point between plea and adjudication, i.e. the deferral, which is not permissible in DWI cases. Call it anything you like, but if it looks like a duck, walks like a duck, and quacks like a duck, then it must be a duck (Deferred Under Cursed

assessed by the

court without a jury

Karma).

With the legislature clearly stating deferred is not an option in DWI cases and the local D.A. losing or dismissing a majority of the DWI cases set for trial, let's come up with a way to circumvent the law and otTer deferred anyway! For if we offered a true diversion, and then the defendant failed to meet his terms of diversion, we might have to try the case and lose anyway.

Now, don't get me wrong, diversion could be a wonderful tool for some defendants if it really were a diversion. But, diversion, in its truest sense, contemplates either never entering the court system (i.e. pre-charging) or removal from the court proceeding (i.e. pre-trial) with the possibility of reinstating the prosecution or proceedings should the diversion fail. A true diversion does not require a plea of guilty, a waiver of trial, a reduced burden of proof upon the State, nor a pre-determined and agreed upon sentence. Under the current program, we don't reinstate the proceedings and continue the case; we move straight to punishment with the defendant having waived all his rights so the State cannot lose at trial.

I know

it, and you can tum it down, opting for a trial or plea without an agreed recommendation. But what happens 3 years from now when the first court rules expunction is not available because this really was a deferred? How many hundreds or thousands of defendants would have already taken the diversion believing it would be expunged; only to find out it wasn't such a great bargain after all?

they say it's not coercive because you can take it or leave

This is but one example as to why all stakeholders should participate in the discussion; vetting the issue leads to the best possible results. Including all stakeholders helps think outside of the box. With jail overcrowding, docket management, and indigent defense being key issues on the forefront of Harris County's criminal justice system problems, now is the time for all stakeholders to come together and find solutions. Now is the time for the defense bar, as the largest stakeholder representing the largest segment ofthe system, to participate. Why wouldn't the D.A. want participation? Why wouldn't the courts? Perhaps they really do think business as usual will win elections. Perhaps they didn't listen to the voters last year!

THE DEFENDER

CD

The client was indicted for Murder as a habitual felon, but TERRY GAISER obtained a

The client was indicted for Murder as a habitual felon, but TERRY GAISER obtained a complete and total acquittal in the 230th District Court after mortally wounding the State's key witness on cross.

·

Proving conclusively that he was right when he said the case should not have been tried, JON ATHAN GLUCKMAN won a resounding Not Guilty verdict on behalf of a client charged with Murder in the 232nd District Court.

·

We interrupt these tales of legal glory with a harrowing story with a happy ending brought about by a defense lawyer. ROBB FICKMAN was returning from Lake Charles on 1-10 when he saw a car upside down on an exit ramp. Stopping, Robb was told by a frantic man that a girl was caught in the wreckage. Robb found her alive, but suspended upside down in the seatbelt webbing. She also was hysterical. Robb calmed her, slid into the wreckage on his back and undid the seatbelt, allowing her to fall into his arms. He later banded her off to paramedics - but not before admonishing her boyfriend that the next time he hears someone bad-mouthing lawyers, he should tell them it was a lawyer who got his girlfriend out of the wreck.

·

Taking Winston Churchill's famous admonition to "never give up" to heart, RICHARD KUNIANSKY won a

Rule 29 acquittal on all charges from U.S. District Judge Siill Lake III after (you read that right: after) the jury had

convicted Richard's client of laundering $1. 7 million.

Robb Fickman reports, Judge Lake entered fmdings that greatly diminish the government's chance of prevailing on appeal. What makes the win even more amazing is that Richard's client was the only one of 15 original defendants in the case to be acquitted. The rest took pleas .

And,

CD THE DEFEIIDER

KATHRYN KASE and JARED TYLER convinced the

Court of Criminal Appeals to grant a new punishment trial for

a Capital Murder client out of Bexar County. Jim Marcus had

assisted at the hearing on the state writ of habeas corpus and

Mia de Saint Victor took the lead in drafting the post-hearing

briefing that resulted in the trial judge's recommendation that

a · new punishment trial be granted.

STEVE SHELLIST won a No Bill for a Continental Airlines mechanic charged with shooting an unarmed 16-year-old. As Steve related in his grand jury packet, the mechanic saw three shadowy figures climbing the fence into his widowed neighbor's backyard and believed them to be wanted for shooting up a neighborhood party earlier in the day. When the three figures refused to stop climbing the fence, the mechanic fired, · hitting one in the ankle.

CYNTHIA HENLEY and Second Chair Program attorney MATT DARBY obtained a dismissal of sexual abuse charges after first obtaining a hung jury in a hard-fought trial. Cynthia credits investigator Audrey Rife for getting the complaining witness on tape telling a vastly different story than she told to investigators, and Matt for his hard work.

·

ROBB FICKMAN and his Second Chair, ROB TUTHILL, won dismissal of a Possession of Marijuana charge on the day the case set for trial. The client was a social worker charged with possession after HISD cops claimed to find a .01 ounce bag of weed in his belongings. Robb said, "Small case; big for client."

·

Not one to waste time, PATTY SEDITA got a I5-minute Not Guilty on a kidnapping case in the I82nd District Court. We hear her excellent close compelled the jury's quick decision.

·

Love - and dedicated lawyering - can conquer all. The parolee-client was up for revocation because he tested positive for cocaine. Unknown to him, his much-younger wife had slipped him a "love potion" purchased from a woman in a beauty shop. At the parole revocation hearing, SUNSIDNE SWALLERS put the wife on to testify that they couldn't afford Viagra and that she had given the unknown substance to her husband without his knowledge. The result: continued supervision.

·

The former operators of the Hart Galleries - who received 17-year prison terms after a pre-sentence investigation - will get a new trial due to ROBERT SCARDINO. First, Robert got the original trial judge (Randy Roll) recused. Then, he won the new trial after pleading a variety of grounds, including that the grand jury foreman and Judge RoB had had contlicts of interest.

·

MATT SKlLLERN secured a Not Guilty from ajury in Montgomery County Court-at-Law No.4 in a DWI case. The acquittal came after Matt showed the arresting officer to be very evaSIve.

Effectively negotiating the transition from prosecutor to defense lawyer, MURRAY NEWMAN won a motion to adjudicate on behalf of a client who was on deferred for aggravated robbery and picked up a new aggravated robbery charge. At the hearing, Murray's cross-examination revealed the complainant's story was confabulated and visiting Judge Don Strickland found the new allegations to be "not true." The State wisely dismissed the charges thereafter.

·

The officer claimed he saw the client make a furtive gesture, which led to a search, which led to the discovery of a crack pipe hidden in foam rubber underneath the dashboard and a Possession of a Controlled Substance charge. But DANNY EASTERLING won a Motion for an Instructed Verdict after convincing visiting Judge Lisa Burkhalter that the search was pretextural. Which was of great relief to the client, who had six felony priors for Possession of a Controlled Substance, was looking at 2 to 10 years, and had turned down a plea offer of2 years.

·

Citing current federal case law (instead of that outdated stuff cited by the State), DANALYNN RECER convinced the Court of Criminal Appeals to dismiss the State's petition for discretionary review in a non-death Capital Murder case. The intermediate appellate court had wanted (on then-defense lawyer Shawna Reagin's brief) to remand to the trial court for further proceedings in light of Batson v. Kentucky, 476 U.S. 79 (1986). And, now, those proceedings will proceed.

·

Saving the client from a sentence between 25 years and life, DALE PASCHALL won an acquittal in a sex case in Liberty County - and from · a jury who deliberated only 20 minutes.

CHERYL IRVIN won suppression from Judge Marc Carter in the 228th District Court on a Possession of Marijuana case . And in so doing, Equator Turner reports, Cheryl made the State extremely unhappy. ·

Legal beagles LISA BENGE and GILBERT GARCIA won

suppression in the 221 st District Court in a drug case based on the "work" of a canine cop in Montgomery County. Relying partially on work by Mary Samaan and Sarah Wood in a prior case, Lisa and Gilbert showed the search warrant to be deficient. Wisely, the State dismissed the case and decided not to appeal. This was Lisa's third victory against the Special Investigation Unit of Montgomery County ·

The moral to this next set of victories is: if you want to win your case, enroll in the Second Chair Program. GRANT SCHEINER and Second Chair Program attorney PAULA SILVA won a verdict of Not Gu iIty by Reason of Insani ty in an "Attempt to Disann a Peace Officer" case in the l76th District Court. Grant reports that Paula "did a phenomenal job the entire way."

·

CYNTHIA HENLEY won two grand jury no-bills in one month's time. The second was on behalf of a beleaguered client was charged with felony sexual assault by his girlfriend after a sexual mishap.

·

TYLER FLOOD won a DWI case that kept everyone guessing. First, Judge Ross granted the motion to suppress the breath test result due to extrapolation issues, then Judge Ross reversed his decision, and then Tyler persuaded Judge Ross to grant suppression again. And then, in the middle of trial, the prosecution finally came to its senses and dismissed the case.

DANNY EASTERLING and KELLY CASE persuaded the

Galveston County District Attorney to offer a LWOP plea in a case where the capital murder had been caught on videotape. With the assistance of mitigation specialist Shelly Schade, Danny and Kelly

persuaded the client to accept. Controlled Substance case, thus causing the State to dismiss its

·

TOM MORAN reports that "a wise Latina judge" (the Hon. Vanessa Velasquez) found probable cause lacking and granted a pretrial motion to suppress in his Criminal Possession of a

prosecution.

Winning Warriors The client admitted to drinking multiple vodka tonics and having come directly from

Winning Warriors

The client admitted to drinking multiple vodka tonics and having come directly from a bar, and leaned against the wall during interrogation at the police station. And it didn't help that her husband called the cop a "#&@! rookie." Still, NATHANIEL TARLOW got the cops to agree that the client had not lost her mental or physical faculties and then obtained a directed verdict in Harris County Criminal-Court-of-Law No.1 O.

·

V~AN KI~G .' assisted by EQUATOR TURNER, successfully obtaIned a mlstnal for an AssaultlFamily Violence client in Harris Cou.nty Criminal Court-.at-Law No.1 after convincing the judge that the JUry had been left with false impressions due to the State's use of what should have been inadmissible evidence.

·

Three Indecency with a Child charges were dismissed in Brazoria County because AMANDA DOWNING proved to the court that her client's speedy trial rights had been violated. Earl Musick reports that the m?tion ,,:as "extremely well prepared" and was based in part on an earlier motton filed by Sean BuckJey in a murder case .

·

The client was passed out behind the wheel, with keys in the ignition and the engine running. And did we mention that the client also

fai~e~ the field

~VIng? Non~theless,JED SILVERMAN pulled out a ''Not Guilty" ill a DWI case 10 Fort Bend County Criminal Court-at-Law No.2.

sobriety tests and later turned down a plea to Reckless

A wife initially detained for interfering with her husband's arrest and later charged with Unlawful Carrying of a Weapon was free to go after DAN GERSON won a motion to suppress and a directed verdict of Not Guilty in Harris County Criminal Court-at-Law

No.9.

In th.e face of a judicial demand that his client waive her right to a contInuance and to pretrial diversion, RICK OLIVER obtained a "Not Guilty" in Harris County Criminal Court-at-Law No.9 after, Doug Murphy reports, he "tore the cop up on cross and whipped them good."

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CD THE DEFENDER

The client, who had no priors whatsoever, was charged with two cases of Indecency with a Child and the proof included one videotaped confession, but DORIAN COTLAR engaged in a contentious, week-long trial in the 122nd District Court and ultimately secured an acquittal on one charge and a hung jury on the other. Dorian credits the efforts of his associate Andrew Herreth, and law clerks Alexis Krafft and Justin Harris:

·

Proving that a diligent investigation yields good results, JAMES ALSTON won a dismissal in a DWIlbreath-test-refusal case after showing that the arresting officer advised the client on the ride to the station not to take the test. James reviewed the refusal tape and, sure enough, there was the cop saying, "I told you that I tell my family members not to take the tests if they are buzzed."

·

On her fir~t solo writ of habeas corpus - and one she took on pro bono publico - CARMEN ROE obtained relief in the 351st District Court on behalf of a client with an illegal sentence.

·

It was, as David Suhler described it, ROB TUTHILL's "first real-w?rld trial" and it also was a non-sting prostitution case, which Rob · tned to a hung jury.

There were bad facts, a week-long trial and a charge of Aggravated Assault with a Deadly Weapon . The State sought 35 years, but CLAIRE CONNORS won 8 years of probation for her client.

·

~he jury had been seated and the client faced between 25 years and lIfe, but ELIJUE DOZIER won suppression from Judge Ruben Guerrero in a Possession of Controlled Substance case and the State dismissed.

·

CHRISTOPHER CARLSON and JOHN FLOYD obtained a 30-minute "Not Guilty" against Austin County District Attorney Travis Koene in a case where deadly conduct was alleged .

·

.

TOM ZAKES convinced a Friendswood prosecutor to dismiss a no-driver's-license and no-insurance case for lack of probable cause after Tom showed that the cop pulled the client over because he was going around the neighborhood asking people if he could cut their grass.

·

Proving to be an incredibly quick study, BILLY SKINNER got the file fr0t? Jed Silverman and, 30 minutes later, argued his first ALR appealm Harris County Criminal Court-at-Law No.2 - and won a remand.

·

The State Bar of Texas honored WENDY MILLER with the Judge Sam Williams Leadership Award at its Annual Meeting in June . Wendy was recognized for improving the public's understanding of the legal system - which she perfonned on b~b~lfof HCCLA and the Houston Young Lawyers AssocIatIOn. The State Bar advises that the award "i~ presented to one lawyer annually exemplifying outstandmg leadership and service to the State Bar of Texas and their local bar associations to best serve the legal profession and the public." Which we think is an apt description of Wendy's volunteer work.

HCCLA BOWlS OVEB THE COMPETITIOIJ FOB BIG BBOTHERS BIG SISTERS OF GBEATEB HOUSTOIJ

by Wendy Miller

Team HCClA won the 2009 Houston Lawyers' Bowl at the Bowl for Kids' Sake lund raiser on June 6 at Palace Lanes - and raised $900 for Big Brothers Big Sisters of Greater Houston.

The win marked the first time that HCClA finished first among lawyer teams at the annual event. It was the Association's third year as a participant in the Bowl for Kids' Sake event. Team HeClA included Steve Halpert, Darrell Jordan, Sunshine Swaliers, and Nicole Caldwell. JoAnne Musick and Monica Hwang served as supporters and fans, and I served as a cheerleader.

Bowl for Kids' Sake is one of the biggest annual fundraisers for Big Brothers Big Sisters of Greater Houston. The non-profit agency matches adult volunteer mentors with local children to give them a helping hand growing up.

Money raised by HCClA supports Big Brothers Big Sisters' Amachi Texas Mentor Program for local at-risk children with one or more incarcerated parents or guardians. HCClA has been an active supporter of the Amachi Texas Mentor Program since 2007 and Association members also participate as adult mentor volunteers at the events.

Send $100 Payable to:

HCCLA PO Box 924523 Houston, TX 77292-4523

& Receive 10 Advance Admission Tickets!

Contact Sfe-phevt f ou~~tovte for more information!

713.802.1900 or tstonel@swbell.net

THE DEFENDER

CD

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Part I, Initial Oient Contact and Discovery by Kelly w. ~ At minimum, your library
Part I, Initial Oient Contact and Discovery by Kelly w. ~ At minimum, your library

Part I, Initial Oient Contact and Discovery

by Kelly w. ~

Part I, Initial Oient Contact and Discovery by Kelly w. ~ At minimum, your library should
At minimum, your library should contain:
At
minimum, your library should contain:

Before y{)U go any further,

o must be prepared to defend a

DWI

as

based on a blood-draw

be prepared to defend a DWI as based on a blood-draw Phlebotomy Essentials, Fourth Edition by

Phlebotomy Essentials, Fourth Edition by Ruth E. McCall and Cathee M. Tankersley, published by Walters Kluwer Publishing in 2008, ISBN 978-0-7817-6138-3.

Procedures for the Collection of Diagnostic Blood Specimens by Venipuncture; Approved Standard - Sixth Edition H3-A6, Vol. 27 No. 26 (replaces H3-A5,'V ol. 23 No. 32), published by Clinical and Laboratory Standards Institute in 2007, ISBN 1-56238-650-6.

Blood Alcohol Testing in the Clinical Laboratory; Approved Guideline, TIDM6-A, Vol. 17 No. 14 Replaces TIDM6-P, Vol. 8 No. 10, published by Clinical and Laboratory Standards Institute in 1997, ISBN 1-56238-333-7.

Garriott's Medicolegal Aspects of Alcohol, Fifth Edition by James C. Garriott and Erik H. Aquayo, published by Lawyer's & Judges Publishing Company, Inc., in Nov. 2008, ISBN-13 9781933264585.

Drunk Driving Defense, Sixth Edition by Lawrence Taylo't' and Steve Oberman, published by Aspen

Publ

hers, ISBN 9780735554290.

Additionally, you should have your jail's standard operating procedures for blood-born pathogen contamination. 1

THEBEFO

®

Part I, Initial Oient Contact and Discovery

In

2004, Montgomery County was one of Texas' first counties

This paper is designed as a primer for the defense of a DWI

I

have never had a client from the jail, nor have I been able

to

have a procedure in place for forced blood draws. That year,

case involving a forced blood-draw. It will not teach you how

the county actually had a judge in the jail during the July 4th holiday to sign warrants authorizing the forced taking of blood from citizens suspected ofDWI. Since then, the county has set up a system in which the "on-call" judge is faxed an affidavit, and the warrant is faxed back to the jail and authorizes, according to prosecutors, the forced blood-draw from drivers

to defend these cases, but it will give you the basics that you must cover in every case involving a forced blood-draw. As always, I am available to assist any defense attorney in need of advice due to the overwhelming amount of infonnation that these cases generate. Hopefully, at the conclusion of the series of articles on this subject, you will cheer when a client calls you

suspected

of

intoxication. 2

with a blood case because you know you will be able to engage

Last year, DPS labs across Texas hired more than 20 new analysts to handle the blood testing that has been submitted on these "blood DWI" cases. DPS used to take almost a year to get

in meaningful discovery and have the chance to successfully defend your client.

the results from a blood test, but has improved its turnaround time to less than a month in alcohol-detection cases. Cases

to obtain an independent sample for testing blood within a reasonable time of my client's arrest. Even so, I make sure that

I

have a nurse on standby at all times in case we get that call

involving drugs are exclusively handled by three analysts out of the DPS-Austin lab and still take considerable time.

At the same time, the CMI, manufacturer of the Intoxilyzer 5000, has come under serious fire in several states for failing to comply with court orders to provide its source code, and

from the jail. You should have someone on standby who can be called upon to quickly meet you at the jail in order to take an independent sample of blood from your client. It's rare that any client is prepared with your name and contact infonnation in advance of their arrest, so you have to be prepared to kick

During your initial phone conversation with all clients, you will

also for inaccurate and unreliable results. Fines in the millions of dollars are pending and continuing to accrue against CMI in Florida. In Texas, we have very little discovery regarding the machine and its processing of data. In this regard, our hands have been tied by the Texas Legislature. Unless there is

into gear quickly after you receive the call from a prospective client.

a

glaring error, your client will be prosecuted and the results

need to ask whether this is a blood case. If so, then you must set the appointment with your client as soon as possible. I mean

of the breath test will be admitted. When I first started in the

that. You must see the client as soon as you can humanly get

District Attorney's office in Galveston County in 1991, we reduced the charges when breath tests were below .15 because we all knew the machine yielded inexact resu Its. It still does.

there, even if it means working late or rising early. If more than two days have passed, there is a good chance that evidence will be lost that could have been very beneficial to your client.

The Intoxilyzer 5000 likely wilt be obsolete in three to five years. By that time, every county in Texas will use forced blood-draws in the prosecution of DWI cases. Interestingly, this coincides with the Mayan calendar and its prediction that the world would end on December 21, 2012. Could those ancients have been on to something?

why will the machine be obsolete in 3-5 years?

1]

Perception. Think about the first time you ever dealt with a blood case or a client called about hiring you on a blood DWI case. Your fIrst thought may have been like mine:

"Oh boy, they really got this guy. Blood is a lock. No way to beat it."

The basic science behind the Intoxilyzer and the assumptions it makes are flawed. We are learning just how flawed thanks to our brother and sister defense attorneys in Florida, Minnesota and Arizona, where the source code Issue rages on.

®

THEDEFENDER

Upon being hired, draft your ALR request and a Motion to Preserve Blood Draw Evidence and Inspection. Fax a copy of the Motion to Preserve to the Captain in charge of the Jail, the Sheriff, and to the Custodian of Records for the Jail for your county. Yes, send it to all of them. Jails have been making video recordings of the execution of the search warrant (that is, the blood-draw), but they will only keep it, at most, for a few weeks. You must make the request to preserve this video and other evidence because the prosecution will not and you will lose the evidence.

By doing this, you will be setting up a spoliation argument when, and if, the jail throws your motion in the trash and fails to properly preserve this evidence, denying your client the right to a meaningful cross examination, due process, and thereby making you ineffective in the representation of your client.

After your Motion to Preserve has been sent to the jail, try to get the motion set for a hearing and obtain a signed preservation order as soon as possible. Send the jail personnel the signed copy, also.

At the initial client meeting, have your client execute a HIPAA release . My clients sign a blank one in this is kept in the client's file . This allows me to copy it so that if I need more than one, I do not have to bother the client again for a signature. Explain this to the client in your initial meeting and obtain their consent. Do this whether your client's blood was taken at a hospital, or at the jail. This release should also contain language for all personnel, as well as for physicians, to discuss your client's case with you. This will become important later. Be sure to obtain your client's prescription records from their pharmacy if drugs are alleged as the intoxicant.

Help the client to understand that an expert will be needed to successfully defend this case. Be familiar with experts who can assist you in this area, and be able to quote their fees to your client at that first meeting. You want to be absolutely certain that the non-indigent client understands the need to save money for that expert fee so that when and if a trial date looms ahead, you are not delayed by the lack of funds which deny you the tools you need to win . Obviously not all clients can afford you, bail, and their expert. Do what you can to make them understand the importance of having your own expert in this field.] You should advise your clients that their personal physician will probably not want to get involved and will definitely not want to testify in court. Personal physicians don't usually make good witnesses so don't rely on the "My doctor said he would give you an affidavit" as a substitute for a good expert and in light of

the fact that it will not be admissible

for any purpose. 4

Most medical records are maintained and will be providu 1 to your office by a third-party contractor of the hospital. Ir' important to send the release to the hospital quickly . TI-< contractor may take up to a month to prepare records, so J not delay in getting the HIPAA request out to the healthca'o provider. When a blood draw has been performed at the j,,;' you should request this from the jail medical director within _ few days of the initial client meeting.

The ALR request must also contain your requests for discovery for the license hearing. You will request of a copy of the DIe 23, 24, and 25, the criminal complaint, a list of witnesses the State intends to call, any affidavits and reports which the State intends to introduce at the hearing, a full copy of the offense reports and all other documents prepared by the officer with regards to his investigation into this matter. Fax that to Texas DPS Driver Improvement Bureau in Austin, Texas at 512-424-2650. 5

During the initial meeting, ask the client to show you the area of the body where the draw took place and all areas where attempts were made. If any area is bruised, have your investigator or someone on your staff (choose someone who can successfully testify) take digital photographs. Obtain as much detail about the draw from the client as possible. In order to do this, you must be familiar with the procedures, law and cases dealing with

cases dealing with search warrant affidavits and search warrants, phlebotomy and the jail's standard operating procedures, including its blood-born pathogen procedures. For example, if your client has had a mastectomy, blood should not be taken from the arm on the same side of the surgery. This is just one example of the many procedures and cautions that must be observed during a blood draw and you will need to know them all.

If the draw was done at the jail, visit the place where your client's blood was drawn. Obtain the maintenance log for this area in a Public Information Act request. Blood draws are only supposed to be performed in sanitary conditions . 6 Was the blood drawn in a sanitary area? What type of cleaning agent was used? Is that cleaning agent specific to remove blood borne pathogens?

In your Public Information Act request to the jail request, ask for:

• Cleaning/maintenance logs • Plumbing problems

• Health code violations • Repairs to the Building

• Contaminations or outbreaks of disease or infections

In our region, the following individuals are designated Custodian of Records for their respective jails:

[

[

Montgomery County Jail Sgt. Mike Weinzettle

Fax: 936-760-5815

[

Harris County Jail Lt. John Legg

Fax: 713-755-3647

Galveston County Jail Captain John Pruitt John.Pruitt@co.galveston.tx.us Fax: 713-755-6228

Schedule your file review with the prosecutor and copy everything in the file and note the date and specific contents you have reviewed on a separate page. 7 Fax a receipt of items reviewed to the District Attorney's Office so there is no confusion what was and what was not in the file at the time of your review. For some reason, the word "supplement" is not in the prosecutor's lexicon.

Obtain a copy of the video of the stop and coordination exercises your client performed. Watch it and have someone in your office transcribe the entire video.

Obtain a copy of the lab report during your file review. Draft your blood subpoena using the information contained on the lab report. If controlled substances are alleged to be the cause of impairment, check the lab report against your client's prescriptions. You must know exactly what is alleged to be causing your client' s impairment.

THE DEFENDER

®

Compare the levels of drug alleged in the lab report to your client's prescriptions filled by the pharmacy and those listed by their physician. Verify that these match. Be wary of the client that has multiple prescriptions from numerous doctors being filled at several different pharmacies. If you do not check these and inadvertently disclose this to the ADA prosecuting the case during plea negotiations, your client may wind up being prosecuted for a controlled substance charge in addition to the DWI charge and will not be pleased with your level of representation. I have had a client who had eight different controlled substances in her blood at the same time. All were prescribed and all were of a therapeutic level. But only an expert could explain this to the jury.

You should have a preliminary questionnaire prepared for new clients. I am constantly updating mine so that I can remember what to ask new clients and make that initial meeting as fruitful as possible. Don't be surprised by the client who forgets to tell you about root-canal surgery and resulting Vicodin prescription. That client may say, "But it's OK, because I only had two glasses of wine with the Vicodin." Most people don't understand that DWl includes prescription medication and they do not think it is important to tell you about their surgeries and nre~crintion medicatinns.

The initial client meeting should cover at least the following:

• Steps involved in defending a Blood DWl

• Timeframe involved

• Client expectations

• Expert services and fees

• Possibility of trial (highly likely unless your client decides to plea to DWI)

• Facts and circumstances surrounding your client's arrest

If the lab report states that your client was on prescription medication, you must verify that your client actually had that prescription and it was current at that time. Next, you will compare the amount of controlled substances in your client's blood to known therapeutic and toxic levels.

Review the Physician's Desk Reference 8 for side effects and compare that to the officer's observations regarding horizontal gaze nystagmus and the coordination exercises. [KC6]Many times, the side effects contradict what the officer claims to have seen and observed during the coordination exercises. Many websites can be searched to determine the effects, also. Include this in your preparation for your ALR hearing . Be able to exhaustively question the officer about his observations of your client and look for contradictions in his observations and the reported side effects.

@ THE DEFENDER

Once you have your initial meeting with your client, you begin the preparation to go to the lab and review the blood. In order

to do this, you will need a court order. I forward a copy of the

signed order to Mr. Keith Gibson, Lab Director at the DPS Crime Lab at 12230 West Road, Houston TX 77065-4523, fax number 281-517-1395 . Call Mr. Gibson at 281-517-1380 to schedule your appointment. It takes at least an hour to review the blood evidence so be prepared to spend some time at the lab. Keith Gibson and his staff are helpful and polite and they will answer your questions, but they are witnesses for the State and you should independently verify everything they tell you .

At the same time, you should request a subpoena for the relevant information you will need from the lab. They will accept service by fax so once you fax it over, expect to get a CD with up to 2,000 pages of material. This is the meat of your case and where your expert will lend a hand.

Make a copy of the disk that the lab sends and forward the copy to your expert immediately. Begin your review of the evidence as soon as it is received. Never assume you will not find a problem .

I was fortunate enough to find an analyst that had not passed

a proficiency exam at the time of testing. Because this is a

serious breach of American Society of Crime Lab Directors regulations, I was able to obtain a better plea bargain. Allowing an analyst to continue to conduct tests without passing their

proficiency exams can cause the lab to lose its certification with ASCLD and hence, be out of business . By exploiting this problem, I was able to secure a two-year plea on a habitual client with numerous priors for a Second Degree Felony that was enhanced to a First Degree. Because of the lab problems, the State agreed to abandon the enhancement and offer my client 2 years of which he had already served. Review your records request thoroughly.

While you are reviewing your records and comparing them to the offense report, pay attention to the dates. Be aware of the time of year and the weather conditions, specifically the temperature, at that time of year. Even in February, in Houston,

a blood vial riding around in the back of an officer's "unit" can be exposed to 75-degree heat,9 which in itself can cause an elevated Blood Alcohol content due to non-refrigeration and growth of bacteria.[KC7] Compare the dates of the chain of custody you will receive from the lab to the dates the officer claims to have mailed it.

In the next article, I will examine the evidence review that you must conduct at the lab and what you will be looking for during that review.

Kelly W Case is an experienced criminal defense lawyer who

He

is scheduled to speak about DW! prosecutions based on blood

draws at HCCLA 's weekly CLE session on Nov. 19.

practices in Galveston, Harris and Montgomery counties.

I Obtained through Public Information Act Request pursuant to Chapter 552 of the Texas Government Code.

2 Per Warren Diepraam, Assistant District Attorney for Montgomery County.

3 And, if your client absolutely cannot afford the necessary expert(s), do not despair! Clients who have exhausted their financial resources in getting bailed out and hiring you are entitled to court-appointed experts.

Ex parte Briggs, 187 S .W.3d 458

(Tex. Crim. App. 2005).

4 Melendez-Diaz v. Massachusetts,

(2009).

577 U . S.

5 Tex. Transp. Code §724.041. The request for hearing must be received within 15 days of the notice of suspension. However, since the

lab results may not come back for more than a year in certain cases, the request must be sent

to DPS within 15 days of the results being

sent to DPS, which then generates the Notice of Suspension. Put a ticker in your calendar

to check with DPS every 2 weeks so that you

do not miss the filgin deadline for this hearing in the event that the results are delayed by the

lab.

6 Tex. Transp. Code §724 .017.

7 At the time of writing this article, the Harris County DA's Office has announced plans for defense attorneys to obtain copies of their files, but the specifics of this policy had not been finalized.

8 Physician's Desk Reference (ISBN-13:

9781563637049) is published by Thomson-Reuter's Publishing every year.

9 On February 1, 2009, for example the tennperature in downtown Houston reached 73 degrees. See Weather Underground website, available at http ://wv.rw.wunderground.comlh istory/ai rport

IKMCJ/2009/2/1/DailyHistory.html?re~city

N A&re~state=N A&re~statename=NA

(last checked July 29, 2009)

have

b~~~eM~rj~i~:lliJ~~I~cf~~~~i~~~~Spee~:~~H[I\RI)?

[t\

.

Incurred in Defending Malpractice Actions .

by Yolanda Coroy

It's every lawyer's nightmare: you've been appointed to represent a client in a criminal case and then the client turns aro und and sues you for malpractice If that happens when you were appointed pursuant to the federal Criminal Justice Act (CJAI. you should know a year 2000 amendment I to the statute now provides assistance to eligible counsel who are alleged to have malpracticed upon the ir indigent cl ients.

The guidelines for obtaining relief are found in Paragraph 2.27E of Volume 7 of the Guidelines for the Admini stration of the Criminal Justice Act and Related Statutes? The Guidelines authorize courts to reimburse panel attorneys for expenses reasonably incurred in defending actions alleg­ ing malpractice in furnishing representa tion al services under the CJA. The amendment covers expenses incurred on or after its effective date. which was November 13. 2000

Reimbursement does not occur if a malpractice judgment is rendered against the attorney. Con­

sequently. the Guidelines state that no reimbursement should be provided until the ma lpractice claim is resolved. The total reimbursement is not to exceed the deductible amount of counsel's

professional liabi lity

bursement include. but are not limited to : the costs of transcripts. witness fees and costs. and

are inap pli cab le. However. at­

torneys will not be reimbursed for attorneys fees for time spent representing themselves or in

assisting counsel in malpractice actions.

atto rn ey fees . In determining reasonable attorney fees. CJA rates

insurance policy or $5 .000. whichever is less. Expenses qualifying for reim­

Reimbursement should be claimed under the expense categories on CJA Form 20 or. where the appo intm ent was in a capita l matter. CJA Form 30. and supporting documentation shou ld be attac hed.

I Federal Courts Improvement Act of 2000 . Pub. L No.1 06-518 (codified as amended at 18 U.S.C. § 3006A(d)(1 ) (2000))

2 See Guidelines § 227(El. available at http://wwvv.uscourts.gov/defenderservices/Chapter 2.cfm#227 (last visited Aug. 1.2009).

Yolanda Coray is a longtime HCClA member. past Board Member. former MuniCipal Judge for the City of Houston. and is a solo praclitioner With a primary practice in criminal law for more than 15 years.

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www.SlateforJudge.com
Texas Criminal Defense
Lawyers Association
Dennis Slate for Judge Campaign
Harris County
Criminal Lawyers Association
112 E. Forrest
Deer Park, TX 77536
Houston Bar Association
713-409-3293
Past President
Pasadena Bar Association
dennis@slateforjudge.com
Poli tical a dvert ls lnl
pai d by Denn i s 5'iIIle for Judie Campaign , Ja cqueli ne Houl ette . Tre;utJ r er,
Associate Judge serving
Houston and Pearland
I n CQ mpllan ~ with the voluntary limits of the Judld oW Campals" FaIrness Act .

Your Honor, May I

Take the Dog on

Voir Dire?

Evidentiary &Constitutional Objections to Dog-Scent Lineups

By Barbara Drumheller

Lest anyone be tempted to underestimate the power of dog-scent lineups, consider this: in a recent case affinned in an unpublished opinion by the First Court of Appeals, the only evidence supporting the felony charge came from a few dogs.' Not just any dogs; bloodhounds with cute, evocative names like "James Bond," and "Clue."2 Imagine a juror confronted with testimony that a dog named Quincy solved the case. What's not to love about a cuddly-faced dog named after television's first crime-solving, forensic examiner? 3

In our jurisdiction and others, dog handlers and law enforcement agencies are taking junk science to an entirely new level. 4 Not satisfied with using their dogs as mere investigative tools, they have designed so-called dog-scent lineups to allow the dogs to finger the perpetrator and testify via inadmissible hearsay at trial. The Court of Criminal Appeals has not yet considered the admissibility of dog-scent lineups but the law is developing among the intennediate courts in favor of dog testimony. Defense attorneys have a responsibility to bring this issue to the attention of the courts by making both evidentiary and constitutional objections and preserving the issue for vigorous litigation on appeal.

Dogs as Scientists: The Rules of Evidence

The leading published opinion on dog-scent lineups in Texas is Winston v. State, 78 S.W.3d 522 (Tex. App.-Houston [14th Dist.] 2002). In that case, the court of appeals upheld the conviction after a trial court denied the defense motion under Rule 702 to exclude the evidence of a scent lineup .s When the defense objects to the admissibility ofscientific evidence under Rule 702, the courts apply the standards set forth by the Court of Criminal Appeals in Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).6 The decision in Kelly was intended to describe a gatekeeping role for courts in the admissibility of scientific evidence, presumably to prevent rampant admission ofjunk science in the courtroom. 7

® THE DEFENDER

Unfortunately, the court of appeals in Winston applied a different test to determine the admissibility of dog-scent lineups. The test applied by the court in Winston is the one set out in Nenno v. State, 970 S.W.2d 549, 560-61 (Tex . Crim. App. 1998). Nenno is a less rigorous test intended to apply to expert testimony that is not particularly scientific. s Under Rule 702, an expert need only have specialized knowledge and his knowledge can be based on training and experience rather than science. When the court of appeals applied the Nenno test to dog-scent lineups, it tacitly decided that dog-scent lineups are not actually based on science.

At first blush, this seems like a defensible conclusion, because no reasonable person can think that swabbing people and items with gauze, putting the gauze in coffee cans in the parking lot behind the police station, and setting the dogs loose to "alert" on the coffee cans by jumping up and down, wagging their tails, barking or sitting is based on real science. The disadvantage for the defense, however, is obvious once the opinions under Kelly and Nenno are compared:

Nenno is a much easier test to meet. 9 Moreover, the court of appeals simplified the Nenno test even further in Winston, when it altered the third prong of the Nenno test specifically for dog-scent lineups. For dog-scent lineups, the third prong of Nenno is met by showing: (I) the qualifications of the particular trainer; (2) the qualifications of the particular dog; and (3) the objectivity of the particular lineup.1O Tn practice, if the dog and its trainer are already familiar to the court or the jurisdiction, the first two parts of the test are automatically met. II After all, if another court has already decided they are qualified, they must be qualified. How does a Nenno objection based on the objectivity of the particular lineup differ from a due process objection that the lineup was impennissibly suggestive? Best to object on both grounds, prior to trial.

In cases in Harris County dog handlers have testified to facts that are not based on mere experience and training. For example, Sheriff's

Deputy Keith Pikett, a dog handler out of Fort Bend County, has testified that dogs track human scent based on skin cells. 12 He has told juries that people shed skin cells constantly, losing "conservatively 50 million of these a day."J) He has testified that such skin cells are "unique to each person, like a fmgerprint." It's hard to imagine how any dog handler or other non-scientific expert could ever learn such a thing through training and experience, given that no scientific testing bas ever been done regarding the uniqueness of human skin celJs. Deputy Pikett has testified he doubts dogs can detect one person's scent on another person, 15 and he has also said that he does not believe scents have commonalities along gender or ethnic lines, although he has no basis for his belief. 16 Such evidence, consisting purely of opinion and conjecture, gives a jury the impression that dog-scent science is well-developed and well-studied, when in fact it has been developed, in Deputy Pikett's own words, " by the seat of our pants." 17

14

In United States v. McNiece, 558 F.Supp. 612 (D .C.N .Y. 1983), the judge stated, "when a dog is used in a man-trailing situation (or in a lineup), 'be is following a trail which he alone recognizes in a way in which he alone understands.' 18 This statement succinctly summarizes the biggest problem with dog-scent evidence. The judge noted the large number of crimes investigated by the dog and his handler in that case, and pointed out that in all of them, "the suspects either confessed or pleaded guilty after the lineup.,,19 "In this connection," the judge continued, "it might be argued that [the dog] may never have been 'proven wrong' merely because the defendants who pleaded guilty

after being identified feared the potential prejudicial weight of the dog identification evidence if they had gone to trial and because the police

placed

undue emphasis on the reliability of the dog's actions.,,20

Here in our own jurisdiction bloodhounds employed for this type of work have been approved as reliable witnesses in part because they

have not been proved wrong on any

article is too small to describe all the ways in which this premise is unacceptab Ie.22

occasion. 21 The scope of this

The State and the courts should not be able to have it both ways. Either dog-scent lineup testimony is unscientific expert evidence based on training and experience and it should not encompass untested and unproven theories and opinions, or it is a science, and the testimony should be tested under Kelly.

An attomey faced with a dog-scent lineup should object under Rule 702, and request a hearing under Kelly.23 Reliability is the linchpin of the analysis under Kelly, and in this regard recent civil lawsuits based

on misidentification made by dogs

Under the Rules of Evidence, if the court determines the dog-scent lineup is relevant under 702 as interpreted through the lens of either Kelly or Nenno, the evidence may still be excluded under Rule 403. 25 Currently, Rule 801 of the Texas Rules of Evidence defmes a "statement" as, among other things, nonverbal conduct if it is intended as a substitute for verbal expression?6 While dog alerts certainly

in scent-lineups are instructive. 24

constitute nonverbal conduct intended as a substitute for verbal expression, the rule applies only to statements made by a "person." Nevertheless, the "statements" made by the dogs accomplish exactly what Rule 802 intends to prohibit.

Dogs as Witnesses: Constitutional Violations

{I} The Confrontation Clause

The Confrontation Clause sat dormant in the face of hearsay rules until the relatively recent decision of the Supreme Court in Crawford v. Washington,27 In that case, the Supreme Court made clear that

regardless of evidentiary rules, if a defendant is deprived of his right to confrontation and cross-examination as guaranteed by the

United States Constitution,

more recently , the Court showed it was not

Confrontation Clause to analyses involving hearsay rules. Scientific evidence, relevant and admissible under rules of evidence pertaining to expert testimony, must not violate the Confrontation Clause. 29 Taking these two opinions together, they show the current Supreme Court has an inclination to honor a defendant's rights to confrontation and cross-examination.

is inadmissible. 28 Even willing to confine the

hearsay testimony

No courts in Texas have addressed a Confrontation Clause argument in the context of dog-scent lineups. For that matter, few jurisdictions have considered the application of tbe Confrontation Clause to the question of dog scent evidence. Those that have considered it have concluded that the human testimony of the trainer or handler makes the evidence admissible because the defendant can cross-examine that person?OMoreover, these cases involved tracking or trailing, rather than dog-scent lineups where the dog's "identification" of the perpetrator is presented as if the dog were an eyewitness to the crime. At the time of the writing of this article, no appellate courts have explicitly address the implication of the Confrontation Clause with respect to dog-scent lineups following the decisions in Crawford and Melendez-Diaz.

When a dog provides tracking or trailing evidence, the handler can testify at trial about what happened when he followed the trail and what evidence or clues were discovered at the end of it. In a dog-scent lineup, on the other hand, the handler is testifying about what the dog "told" him. The Lineups are conducted in an eerily similar way to a live lineup or a photo array, and the evidence adduced from them is viewed with equal reverence on the part of police and juries. The only distinction between a scent lineup and a live lineup is the nature of the eyewitness. In the latter case, the eyewitness is a human, who can be cross-examined, and in the former case, the eyewitness is a dog who cannot. No amount of cross-examination performed on the dog handler is going to iUuminate the court about the basis for the dog's decision, the level of certainty felt by the dog, the degree of doubt retained by the dog, or the motivation the dog might have had for choosing a particular piece of gauze in a particular coffee can. No one can ask the dog whether he recognized the scent of the officer who took the scent samples, or whether he was confused because of the direction of the wind, or whether, in his experience, the scents of different people include similarities based on their gender, ethnicity, occupation, grooming preferences, or hobbies. In short, cross-examination of the handler or trainer is wholly inadequate.

Under Crawford, no officer would be pennitted to testified that he conducted a live lineup and an eyewitness, not present at trial, told him which man conunitted the crime. Cross-examining the officer

THE DEFENDER

®

on whether the witness seemed certain, or whether the witness sounded convinced, wouJd not satisfy the defendant's right to confront and cross-examine the witness himself. Likewise, courts should recognize that dogs cannot be pennitted to "testify" substantively about a defendant's guilt through the hearsay testimony of its trainer or handler. If you are inclined to believe that cross-examining the handler is good enough, ask yourself: in a dog-scent lineup case, who is the eyewitness?

{2} Due Process

A pretrial identification procedure may be so suggestive and

conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law]1

As all defense attorneys know, the defendant has the burden to show, by clear and convincing evidence based on the totality of the circwTIstances, that the pretrial identification procedure was impermissibly suggestive and that it created a substantial likelihood

of irreparable misidentification. 32 This is done during a pretrial

hearing. Suggestiveness may be created by the manner in which the pretrial identification procedure is conducted. For example, if

police point out the suspect or suggest that a suspect is included in

the line-up or photo array, the procedure is suggestive.))

Under Winston, the suggestiveness of the pretrial procedure would also be tested on an evidentiary basis, because the altered Nenno test contains a requirement that the particular dog-scent lineup be "objective.,,)4 Suggestiveness, or lack of objectivity, is difficult to show without a videotape or a particuJarly forthright officer. Even with a videotape, Jay people will be unable to see whether the dog was influenced by the trainer or whether the dog's "alert" was genuine unless an expert on dog behavior can interpret the procedure. A dog trainer will not willingly admit he influenced his dog to choose a particular suspect. He may not even be aware of his own suggestive behavior. Nevertheless, it is worth objecting to a dog-scent lineup on due process grounds.

Here in our own jurisdiction bloodhounds employed for this type of work have been approved as reliable witnesses in part because they have not been proved wrong on any occasion.

At least one court of appeals has decided in an unreported decision

that a dog-scent lineup is not a critical stage of a criminal proceeding

for purposes of the Sixth Amendment.)5 As a result, the defendant is

not entitled to representation by counsel during a scent lineup.)6 This

creates a problem for the defense attorney who hopes to make a record to preserve an objection to the suggestiveness of a dog-scent lineup . If the attorney is not present and no videotape was made, the attorney is left hoping to show suggestiveness by cross-examining the handler, who has single-handedly ensured that he is the only witness to the dogs' crime-solving behavior.

® THE DEFENDER

is left hoping to show suggestiveness by cross-examining the handler, who has single-handedly ensured that he is the only witness to the dogs' crime-solving behavior.

Even if a pretrial identification is, in fact, suggestive, an in-court identification is usually permitted by the eyewitness as long as it wasn't "so unnecessarily suggestive and conducive to irreparable mistaken identification that he [the defendant] was denied due process of law.,,)7 The usual factors used to assess an identification include:

(1) the witness's opportunity to view the criminal act, (2) the witness's degree of attention, (3) the accuracy of the suspect's description, (4) the level of certainty at the time of confrontation, and (5) the time between crime and confrontation.)8

In a dog-scent lineup case, the dog will be unable to testify at trial and give an in-court identification. This should highlight for the court the fact that the witness, within the meaning of the Constitution and the Sixth Amendment, is the dog and not the handler. Assuming the court is unconvincecl, however, an application of the usual factors regarding identification should help.

The first factor concerns the witness's opportunity to view the criminal act. The witness (the dog) in a dog-scent lineup case has had no opportunity to witness the criminal act. The second factor concerns the dog's degree of attention. In the traditional application, the courts consider the eyewitness's degree of attention to the criminal act. In a dog-scent lineup case, the dog had no opportunity to pay attention to the criminal act. Moreover, because the dog cannot be cross-examined it is impossible to meaningfully assess the dog's degree of attention to the lineup procedure. No one can know what the dog is thinking. The third factor concerns the accuracy of the suspect's description.

In the case of Deputy Pikett, his prior testimony indicates the "scent samples" obtained from crime scenes or victims are often based on pure guesswork. For example, Pikett testified in a deposition that he swabbed a victim's body in several locations, including her neck, just on the off chance the perpetrator might have touched her there. He has testified in the past that he obtains scent samples from crime scenes by telling officers to merely swab things a suspect might have touched . These kinds of procedures cast doubton the accuracy of the " description" of the suspect, to the extent the swabs from the scene can be analogized to a "description."

The fourth factor--the level of certainty--can can never truly be known in a dog-scent lineup case. No objective evidence about the dog's certainty can ever be presented. Nevertheless, a videotape of the lineup and cross-examination of the handler can at least present some evidence the dog might have been uncertain. For example, testimony from dog handlers in past cases have included comments about variations in a dog's "alert," meaning that sometimes the dogs bark, sometimes they dance, sometimes they wag their tails and sometimes they sit. The judge should consider the possibility that a change in the dog's usual manner of "alert" might indicate a diminished level of cel1ainty, regardless of the handler's interpretation. Finally, the fifth factor, timing of the lineup, can be applied based on the time between the crime and the time the scent samples were obtained, and then the time between the collection of scent samples and the lineup. Even the most optimistic and idealistic of dog trainers have admitted that scents deteriorate over time.)9

Dogs as Substitutes For Actual Evidence:

The Conclustion

Courts are fond of saying that the ability of certain breeds of dogs, especially bloodhounds , to distinguish humans by scent is well-documented. This may be true, but the ability of bloodhounds to communicate to humans , through nonverbal gestures, whether a gauze pad that has been rubbed on a person's skin and put in a can indicates that person has committed a crime is something else entirely. Cowts respond that jurors will understand the limitations of such testimony, because they will recognize that dogs are "human-like" and subject to lapses in judgment and perception, which means their evidence will have lesser potential prejudicial impact. 4o Whether juries recognize that dogs are "human-like," and subject to lapses in judgment and perception is an open question. History suggests it is more likely that juries will consider dogs to be truthful , capable, pure in motive and gifted with superior olfactory senses, however limited our understanding ofthem. 41 The cowts in Texas have just begun to respond to the advent of dog-scent lineups. There is still a real opportunity to keep this unreliable junk science out of our courtrooms.

Barbara Drumheller started her career in criminal law at the Harris County District Attorney 's Office in the appellate division. She left that position in 2000 to take contract appeals while caring for her three small children. She is now building a private practice handling mainly post-conviction matters.

I Perkins v. State, No. 01-08-oo205-CR, 2009 WL 2050494 (Tex. App.-Houston [14th Dist.] 2009) (in this case, the dogs provided the only evidence of entry in a case that otherwise would have been cbarged as a misdemeanor theft).

21d. at ·5.

3 Quincy. M.E. (NBC television show) . Quincy, M.E. premiered on October 3, 1976 and ended on May II, 1983. The popular show documented the career ofa crusading Medical Examiner in Los Angeles, an expert always capable of finding a small clue everyone else missed.

4 In several jurisdictions dog-tracking or scenting evidence is already inadmissible, per s e, on reliability grounds. People v. PJanschmidt, 262 m. 411,104 N.E . 804 (1914) ; Ruse v. State, 186 Ind. 237, 115 N.E. 778 (1917); State v. Grba, 196 Iowa 241, 194 NW . 250(1923); Stale v. Storm, 125 Mont. 346,238 P.2d 1161 (1951); Brott v. State, 70 Neb . 395, 97N .W. 593 (1903) ; People v. Centolella, 61 Misc .2d 726, 305 N.Y.S .2d

460(1969).

S Rule 702 of the Texas Rules of Evidence states: "If scientific,

specialized knowledge will a.~sist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testifY thereto in the form of an opinion or

technical, or other

otherwise."

6 I"n Kelly, the Court of Criminal Appeals held, "Evidence derived from a scientific theory, to be considered reliable, must satisfY three criteria in any particular case : (a) the underlying scienti fie theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question." Kelly, 824 S.W.2d at 573.

7 PETER T. HOFFMAN, TEXAS RULES OF EVlDENCE HANDBOOK 683-87 & 702-739 (Jones McClure Publishing, Inc., 2008-2009) (8th ed.) (setting forth the development of the law regarding scientific experts and the problem ofjunk science).

8 Nenno, 970 S.W.2d 549 at 560-62.

Resources for Defense Lawyers with Dog-Scent Cases

The Trial Project of the Texas Defender Service keeps resource files on dog-scent evidence and on Fort Bend County Sheriff's Deputy Keith Pikett. These materials include scholarly papers on dog-sccnt lineups, prior testimony by Deputy Pikett, and testimony by defense experts.

Therefore, if you're facing dog-scent cvidcnce or Deputy Pikctt as a witness for thc prosecution in your next casc and you want to obtain a copy of these materials on CD-ROM, contact Kathryn Kase at KM Kase@ compassnet.com .

9 In Nenno, the Court of Criminal Appeals stated that the appropriate questions for assessing reliability are: (I) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert's testimony is within the scope of the field; and (3) whether the expert's testimony properly relies upon or utilizes the principles involved in the field . Nelina, at 561.

10 The court broke down the analysis even further by providing five factors to consider regarding whether the particular dog is qualified: it must be (I) of a breed characterized by acuteness of scent and power of discrimination, (2) trained to discriminate between human beings by their scent, (3) found by experience to be reliable, (4) given a scent known to be that of the alleged participant of the crime, and (5) given the scent within the period of its efficiency. Winstoll v. Stale, 78 S.W.3d at 527-28.

II See Perkins v. State, No. 01-08-00205-CR, 2009 WL 2050494, ·15 (Tex. App.- Houston [14th Dist.] 2009) (citing Wins/on for the proposition that Deputy Pikett and his bloodhounds are qualified to perform scent lineups).

12 Testimony from Perkins v. State at R.R.3 - 134.

13 He has also said people shed, conservatively, fifteen million cells a day. Winfrey v. State, --S .W.3d-, 2009 WL 1636849 (Tex. App.-EastJand, 2(09).

14 See, Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth oJthe Dog

&enl Lineup, 42 Hastings L.1. 17 (\990); see also Deposition of Keith Pikett (Document

Victoria, No. 6:08-CF"()()()()8 (S.D. Tex . 2009) ("there

isn't much literature on [training methods for bloodhound scent discrimination] . There's

pamphlets handed out by these Old Timers, there's the National Police Bloodhound Association's little pamphlet on information on bloodhounds, but there are no books written that you could just pull up").

No . 81) in Buchanek v. City oj

IS Wi'!frey v. State, ---S.W.3d---, 2009 WL 1636849 (Tex. App.-Eastland, 2009).

16 Testimony from Perkins v. Stale at R.R.3 - 148.

17 Testimony from Perkins v. State at R.R.3 - 133.

THE DEFENDER

®

18 u.s. v. McNiece, 558 F.Supp. 612 (D.C .N.Y. 1983) (quoting L.W. Davis, Go Find!

27 Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed .2d 177 (2004) .

60 (1974».

 

281d. at 51, 124 S.Ct. 1354.

19Id. at 614.

 

29 Melendez-Diaz v. Massachusetts, 577 U .S. --y 2009 WL 1789468 (2009).

2OId.

21 Winfrey

v. State, --S.W.3d--, 2009 WL 1636849 (Tex . App .-Eastland, 2009).

22 At least one trial court that has barred Deputy Pikett's dog-scent lineup testimony.

See Order at RR Vol. 2:161-65 in State v. Justin Jerome A lexander, Cause No. 50041 (268th Dist. Ct., Fort Bend County June 16,2009). Additionally, Deputy Pikett has now been sued by two men who were cleared by DNA testing after they were suspected of, respectively, a capital murder and a rape based on scent-lineup alerts made by Deputy Pikett's dogs. See, e.g., Buchanek v. City of Victoria, Cause No. 08-CV-OOOO8 (S.D. Tex. 2(09) (lawsuit by sheriffs deputy alleged to be person of interest in capital murder); Miller v. City of Yoakum, Cause No. 09-CV"()()()35 (S.D. Tex. 2009) (lawsuit

by man suspected of rape based on dog-scent lineup).

23 A non-exclusive list of factors the court can consider while conducting a Kelly

analysis include (I) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert(s) 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(s) who applied the technique on the occasion in question.

24 Rick Casey, Dog's Nose Fallible as a Crime Lab, Houston Chron., June 30, 2009.

2S Rule 403 states: " Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudicc, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."

26 TEX. R EVID. 801(a).

of cumulative evidence." 26 TEX. R EVID. 801(a). • 10 years of criminal law experience •

• 10 years of criminal law experience

• Member, State Bar Rules of Evidence Committee

• Experienced defense lawyer and former prosecutor:

• Felony and misdemeanor trial courts

• Texas Court of Criminal Appeals

• United States Supreme Court

Pol ad.paid for by th e Peyton Peebl es for Judge Campaign, James Stafford, Treasurer PO Box 53776 Houston, Texas 77052·3776

• Special Prosecutor

• Legislative Liaison,

80th Legislature

• Former peace officer

• Over 300 criminal appeals

and writs (state and federal), including over 25

Federal and Texas Chapter 64 DNA appeals appellate courts

T e x a s Chapter 64 DNA appeals appellate courts ® THE DEFENDER 30 Copley

® THE DEFENDER

30 Copley v. State, 153 Tenn. 189, 281 S .W.460 (1926) ("such evidence is not

inadmissible on the ground that the dog is the witness and cannot be cross-examined.

It is the human testimony which makes the trailing done by the animal competent); see also, Statev. Bumice, 131 Wash. App. 10011,2006 WL 122198 (2006).

31 Simmons v. United States, 390 U .S. 377, 384 (1968); Barley v. State, 906 S.w.2d 27,

32-33 (Tex. Crim. App. 1995).

32 Simmons, 390 U.S. at 384; Barley, 906 S.W .2d at 32-34.

3J Ibarra v. State, II S.W.3d 189, 196 (Tex. Crirn. App. 1999).

34 Wins/on v. State, 78 S.W.3d 522, 527 (Tex. App.-Houston [14th Dist.] 2002, pet.

rePd).

3sJennings v. State, No. 14-08-001 23-CR, WL 1677858 (Tex. App.-Houston [14th Dist.] 2(09).

J61d.

37 Neil v. Biggers, 409 U.S . 188, 196,93 S.Ct. 375 , 380,34 L.Ed.2d 401 (1972).

38 Barley, 906 S.w.2d at 34-35.

39 See, e.g., Deposition of Keith Pikett (Exhibit 2 to Document No. 81) in Buchanek v.

City of Victoria, No. 6:08-CF-OOOO8 (S .D. Tex . 2009).

40 Us. v. McNiece, 558 F. Supp. 612 (D.C.N.Y. 1983).

The Unscientific Myth of the

Dog Scent Lineup, 42 Hastings L.J. 17,26-27 (describing the many ways in which the bloodhound has been revered throughout human history).

41 See, Andrew E.

Taslitz, Does the Cold Nose Know?

in which the bloodhound has been revered throughout human history). 41 See, Andrew E. Taslitz, Does
Recently, a defendant was charged with three felony counts in state district court in Harris

Recently, a defendant was charged with three felony counts in state district court in Harris County and the court set bonds in an amount totaling nearly $200,000. The defendant paid a bonding fee of nearly $15,000, which allowed him to "bond out" of jail, and he made six court appearances over a four-month period. On the morning of his seventh appearance date, the defendant was late to court - because a federal law enforcement agency had detained him at his home. The trial judge forfeited the defendant's bonds and set his release status at "no bond."

When the federal law enforcement agency finally released the defendant, he immediately went to court. The trial judge then began the process of recalling the forfeiture and reinstating the bonds. However, the defendant's bonding company approached the judge with an Affidavit of Surety to Surrender Principal.

The bonding company sought the surrender for three reasons: "(1) [T]he defendant was detained by federal agents on [the] scheduled court date and his bond was forfeited, then later reinstated; (2) The defendant failed to report a new address to this bonding company; and (3) [the bonding company] believes this defendant will eventually go into federal custody before the case is disposed and the bond will forfeit."

The trial judge granted the surrender motion and took the defendant into custody. The defendant was able to bond out that afternoon with the assistance of a new bonding company.

Fortunately for the defendant, his attorney filed a Motion for Refund of Bail Bond Fees pursuant to section 1704.207 ofthe Texas Occupations Code.

and the

principal or an attorney representing the state or an accused in the case

determines that a reason for surrender was without reasonable cause, the person may contest the surrender in the court that authorized the surrender.

Section 1704.207 states: [I]f a principal is surrendered

The law goes on to state that, if there was not "reasonable cause" for the surrender, a trial court can require the bonding agency to refund all or part of the fees paid to execute the bond. Additionally, the trial court must identify the fees paid to induce the bond execution "regardless of whether the fees are described as fees for the execution of the bond."

upon Section 1704.207,

the trial judge found that there was not reasonable cause for the surrender and ordered the original bonding company to refund

$10,000 to the defendant.

As a result of counsel's motion and reliance

This demonstrates that counsel can obtain a refund of all or part of the fees paid to execute the bail bond when the surety has sought to

As a first step,

however, attorneys and clients are advised to seek responsible and

ethical sureties who will post bonds and not seek surrender under unreasonable circumstances.

surrender the principal without reasonable cause.

John Burns is the founder of Burns Bail Bonds, a family-owned bonding company which has been in operation since 1971.

IRONHORSE SECURITY S INVESTIGATION

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PH. 281-513-3925 FAX 713-937-0143

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Iron horse Security and Investigations is that team of investigators that can give you and your firm that edge. At Ironhorse Security and Investigations, our team consists of Daniel Shelton former IRS Investigator, Buddy Sledge a 30 year specialist in surveillance, child custody and workers compensation cases, Carolyn Kizzie retired Harris County Probation Officer specializing in PSI reports, Alicia Flores seven years of criminal Investigations in an ever growing bl-lingual community, Joe Martinez retired 38 year Vet. HCSO Narcotics Deputy and lastly Alan Steuart, former DEA Agent with 23 years of criminal, civil and family law investigative experience. Alan Steuart also was the head of security for Heavy Weight Champion Evander Holyfield and did a tour in Afghanistan as a Security Coordinator for USPI.

The investigators of Iron horse Security and Investigations are all versed and seasoned in criminal investigations, civil investigations, asset investigations, backgrounds, surveillance and are also licensed in Personal Protection and Security.

There is no job to small or too large for our company. Let us help you with all of your investigative needs. Behind every great Attorney Is a great Investigative team. Take a chance and let us show you what we can do.

Alan Steuart, Former DEA Agent, Owner/Manager

THE DEFENDER

®

Variances Are Not Departures

by Another Name

By

Marjorie A. Meyers

Are Not Departures by Another Name By Marjorie A. Meyers Background The federal sentencing guideline scheme

Background

The federal sentencing guideline scheme required a sentencing

court to impose a sentence within the guideline range unless the court determined that there was a circumstance of a kind or to a degree that had not been adequately considered by the Sentencing Commission. I In United States v Booker, 543 U.S. 220 (2005), the Supreme Court held that this mandatory

The Court

judicially excised Section 3553(b), declared the Guidelines

advisory, and instructed judges to sentence in accordance with

guideline regime violated the Sixth Amendment. 2

18 U.S .C . § 3553(a) . 3

Section 3553(a) commences by directing courts to "impose a sentence, sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2)."4 This parsimony provision is the " overarching provision instructing district courts" how to impose a sentence. s The court is to consider the nature and circumstances of the offense and the history and characteristics of the defendant. 6 The court must then consider (I) the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law and provide just punishment, (2) to provide general and individual deterrence, and (3) to provide treatment and rehabilitation to the defendant "in the most effective manner."? The court must also consider the kinds of sentences available, the guidelines and policy statements, the need to avoid "unwarranted" disparity and to provide restitution. 8

The Guidelines are still an integral part of any post-Booker

sentencing: they are the "starting point" and "initial benchmark.,,9 The district court's discretion, however, is "significantly broadened," and the sentencing judge must make

facts of each case. IO

an individualized assessment of the

Moreover, the sentencing court shalt not presume that the advisory Guideline range is appropriate in an individual case . II

Circumstances Need Not Be Exceptional to Warrant a Variance

Before Booker, a sentencing court's authority to depart depended on whether a factor was prohibited, encouraged, 12 discouraged, or not mentioned by the Sentencing Commission. Encouraged departures were permitted if not already adequately considered and "warranted."1J Discouraged and unmentioned departures were permissible only if present "to an exceptional degree, " '4 in other words, if the circumstances were "extraordinary."l s departure guidelines by way of analogy in analyzing the section 3553(a) factors.,,' 9

@ THE DEFENDER

In rendering the Guidelines advisory, the Supreme Court authorized sentencing courts, not only to depart from the Guidelines, but also to vary from the recommended ranges in accordance with 18 U.S .c.§ 3553(a). After Booker , it should be "pellucidly clear" that the particular factors in any given case need not be " extraordinary" to warrant a variance from the Guidelines. '6

Indeed, the Fifth Circuit has held unequivocally that after Gall and Kimbrough, "[w]ithout a doubt, the requirement of 'extraordinary circumstances' is no longer the law. " '? In Simmons II, the court of appeals announced the "death of the 'extraordinary circumstances' language from Simmons I," and remanded the case to allow the district court to consider whether a downward variance based on age, a discouraged factor under USSG § 5H 1.1, was warranted. 18

Other circuit courts have likewise made it clear that a

defendant's individual circumstances need not be extraordinary

to justify a non-Guideline sentence. The Seventh Circuit deems

obsolete in post-Booker

sentencing

departure guidelines by way of analogy in analyzing the section 3553(a) factors."19

"[t]he concept of departures

[although] the district court may apply those

In United States v. Chase,20 the Eighth Circuit vacated a sentence

where the district court erroneously equated variances and

departures. The court of appeals emphasized:

Variances

Factors ordinarily

calculating the advisory

determining

warranted, can be relevant in

to

do

differ

from

departures

considered irrelevant in

guideline departure is

deciding

21

guideline range, or in

whether

whether a

grant a variance

The Eighth Circuit went on to address not only the propriety but the necessity of addressing the types of personal circumstances

in a given case:

In fashioning a " sentence sufficient, but not greater than

are not only

permitted, but required to consider 'the history and

characteristics of the defendant.'"

such as a defendant's age, medical condition, prior military service, family obligations, entrepreneurial spirt, etc. can form the bases for a variance even though they would not justify a departure. 22

As a consequence, factors

necessary," 18 U .S .c.§ 3553(a), "district courts

Rejecting the government's reliance on pre-Booker caselaw, the Eighth Circuit clarified that "departure precedent does not bind district courts with respect to variance decisions, it is merely persuasive authority.,,23

Similarly in United States v. Jones,24 the Second Circuit affirmed

a district court's variance from a 30-to-37-month Guideline range to a sentence of 15 months for a defendant convicted of

being a felon in possession of a firearm and possession of five bags of marijuana based on the defendant's "consistent work ethic," his family obligations and support, his father's recent death and his efforts at rehabilitation. 25

The government argued that the sentence was not permissible because the Sentencing Commission had discouraged departures based on a defendant's education, emotional condition, employment record, family ties and good works.26 As the Second Circuit recognized, the government's reliance on pre-Booker policy statements and court decisions revealed a fundamental "misconception" concerning today's non-Guideline sentences. 27 The court explained:

By

however, the Government fails

Jones's post-Booker sentence is

departure; it is

With the

the Supreme Court's decision in

limitations on the use of factors

citing

the Guidelines'

a

departure standards,

to

appreciate that

not a

Guidelines

non-Guidelines sentence.•.•

entire Guidelines scheme rendered

advisory

by

Booker, the Guidelines to permit departures

are no more binding on sentencing

calculated Guidelines ranges themselves.

a sentencing

Guidelines .•

Commission's relevant policy

calculated Guideline range.

not mean mandatory

In United States v. Martin,29 the First Circuit approved a district court's 91-month variance, which was based in part on the defendant's family circumstances and support. The court of

appeals indicated that the Sentencing Commission's policy statements still were pertinent but "normally not decisive as to what may constitute a permissible ground for a variant sentence

in a given case.,,30 The appellate court added that a district court

may take "idiosyncratic family circumstances into account, at least to some extent, in fashioning a variance sentence. ,,31

judges than

"consider"

the

Of course,

the

judge's obligation to

.includes the obligation to

consider the

statements as well as the

But "consideration"

does

The Sixth Circuit anticipated the Supreme Court's rejection in Gall of mathematical ratios in upholding a 68-month variance to the mandatory 120-month minimum for a defendant convicted of possession of 203 grams of crack with intent to distribute it, who also possessed four firearms including a loaded machine gun, and a pipe bomb.32 The variance was based on the defendant's age, his minimal criminal record and family circumstances including the fact that his father had been murdered when he was nine and his mother died of cancer two years later. 33

In summary, the sentencing court has an obligation to consider all "nonfrivolous reasons" proffered by the parties for a

doing so, the court must not focus

non-Guideline sentence. 34 In

solely on the offense to the exclusion of consideration of the circumstances of the offender.J5 It is not "severe punishment that promotes respect for the law, it is appropriate punishment,"36 that is, punishment that is "sufficient, but not greater than necessary," to comply with the purposes set forth in

the statute. 37

I

18 U.S.c.§ 3553(b).

United States v. Booker, 543 U.S. 220, 233-35, 244 (2005).

2

3 Id. at 259-61.

4 18 U.S.c.§ 3553(a). 5 Kimbrough v. United States, 128 S.Ct. 558, 570 (2007); see also

Gall v. United States, 128 S.Ct. 586,596 (2007);

States, 551 U.S. 338, _

Rita v. United

,127 S.Ct. 2456, 2463 (2007).

6 18 U.S.C.§ 3553(a)(I).

7

8 18 U.S.c.§ 3553(a)(3)-(7).

9 Gall, 128 S.Ct. at 596.

18 U.S.c.§ 3553(a)(2) .

10Id.

II Nelson v. United States, 129 S.Ct. 890, 892 (2009); Rita, 127

S.Ct. at 2465.

12 Koon v. United States, 518 U.S. 81,93-96 (1996).

13 USSG § 2K2.0 (a)(2)(A); Koon, 518 U.S. at 96.

14 USSG § 2K2.0(a)(4); Koon, 518 U.S. at 95-96.

15 See e.g. United States v. Simmons (Simmons 1),470 F.3d 1115, 1130 (5th Cir. 2006), cert. denied, 127 S.Ct. 3002 (2007). 16 Gall, 128 S.Ct. at 595.

17 United States v. Simmons (Simmons II), 568 F.3d 564, 568 (5th Cir. 2009) (citing United States v. Rodriguez-Rodriguez, 530 F.3d 381,384 n.4 (5th Cir. 2008».

18 Id. at 568, 570 .

19 United States v. Schroeder, 536 F.3d 746, 755-56 (7th Cir. 2008)

(emphasis added) (agreeing with district court that defendant's family circumstances including adopted daughter with immune deficiency were extraordinary).

20 560 F.3d 828 (8th Cir. 2009).

21 Id. at 830 (citations omitted).

22 Chase, 560 F.3d at 830-31 (emphasis added) (citing, inter alia, United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005) (approving consideration of military service, pregnancy of

defendant's wife and his need to care for his children, and his "entrepreneurial spirit"».

23

!d. at 832 (emphasis in original) .

24

460 F.3d 191 (2d Cir. 2008).

25 Id.

at

194.

26 Id. (citing USSG

27/d . at 194-95.

28/d. (emphasis added, citations omitted).

29 520 F.3d 87, 93-95 (I st Cir. 2008).

§§ 5HJ.2, 5Hl.3, 5Hl.5, 5H1.6, 5Hl.lI) .

30

Id.

at 93.

31

Id. (citations omitted).

32 United States v. Collington, 461 F.3d 805, 807 (6th Cir. 2006).

33 Id.

at 809.

34 Rita, 127 S.Ct. at 2468.

35 United States v. Olhovsky, 562 F.3d 530, 549-50 (3d Cir. 2009).

36 Id. at 551 (emphasis in original).

37 18 U.S .C .§ 3553(a).

Marjorie A. Meyers is the Federal Public Defender for the

Southern District of Texas.

This article previously appeared in

the Summer 2009 issue of The Bulletin, the publication of the

Federal Public Defender for the Southern District of Texas.

THE DEFENDER

@

~

YOU, TOO,

CAN WIN APAROLE REVOCATION HEARING

~ L,o

yooJ 1)o~ lc\-)

CAN WIN APAROLE REVOCATION HEARING ~ L,o yooJ 1)o~ lc\-) If you are a young lawyer,
CAN WIN APAROLE REVOCATION HEARING ~ L,o yooJ 1)o~ lc\-) If you are a young lawyer,

If you are a young lawyer, you probably have a little more free time than you would like to admit and parole revocation hearings are a great way to fill that time.

First, each hearing is a surefire opportunity to make an immediate and positive impact on someone's life. The people you will serve in this setting have been in and out of prisons and halfway houses for most of their lives. A majority suffer from some type of mental illness. Many are homeless, have no families, and have seen few kind faces in their long careers. Practically speaking, you will get to regularly cross-examine witnesses and learn how to build a mitigation case on a short time line - all necessary skills that, when you are new to the practice, definitely need sharpening.

WHEN YOU GET YOUR FIRST APPOINTMENT, THIS IS WHAT HAPPENS-

Someone from the Texas Board of Pardons and Paroles will

\ can you and say, "We have a hearing scheduled for (date, time) at the Harris County Jai l. Are you available?" You will say , "Yes," and they will start rattling offa whole lot of information including the name and number for the parole officer and hearing officer and you will have no idea what they are talking about. Just write it all down.

Immediately fill out and fax the Attorney Fee Affidavit to

Austin. done so .

You cannot take action on the case until you have

Pick up the phone and can the parole officer. Ten them you have just been appointed to the case and you need them to fax the revocation packet. Warning: start calling the P.O. on Day One because the chances of you catching them in their offices are slim to none. Do not be alarmed ifit takes you three or four phone calls to get what you need.

The Revocation Packet. The first page will likely be the parole certificate. Look for a handwritten date at the bottom- this will be the date the person is scheduled to discharge from parole . The Certificate of Parole will have the terms and conditions listed. There win also be a violation report. This is what the parole officer generates once he or she issues a warrant. A very important page is the Adjustment Statement. It is a one page document the parole officer prepares to show how well your client has been doing while on supervision.

Go visit the new client ASAP. Unfortunately, there are lawyers who lay eyes upon their clients for the first time the day of the hearing . Do not do this. I try to wait a day to hopefully get the revocation packet from the parole officer so I can have a more productive client visit, but time is a luxury because you will usually have about a only week to prepare. Find out (in addition to the facts surrounding the alleged violation): how far the person went in school, whether they were in special education classes, whether they can read (and do not take their word for it if you have doubts), what kinds of medication they take, and whether they receive or have applied for Social Security Disability. Discuss whether your client has a safe place to which he or she can be released and start calling Mom, Aunt Betty, and Cousin Dan as soon as you leave the jail.

If your client has special needs and cannot help you at all, call the P.O. and ask if they have any contact information for friends and family . Sometimes the P.O.' s are helpful and compassionate social worker types so it does not hurt to ask.

~ You can usually get a short continuance if you need one. If

-I difficulties develop or you need more time for whatever reason, call the hearing officer and let them know you need more time. He or she will fax you the form for the continuance request and as long as you have a good enough reason you should be able to get one .

t(2 You can and should subpoena witnesses. If you want to

subpoena someone, ten the P.O. by phone and/or fax and they

o

will do it.

I The Hearing. As a courtesy to all involved, the revocation

hearings are held in the luxurious attorney visit booths at the jail. Arrive early so you can see your client before the parole and hearing officers arrive. Have your fee affidavit filled out (estimate about a half hour for the hearing and then correct your affidavit after the hearing if you need to). My hearings have lasted anywhere from 15 minutes to 4 hours, but usually they are about an hour. The Hearing Officer will go on the record and ask you to swear to the fee affidavit. He or she will then say , "We are here to conduct a hearing regarding Client. There are two parts to a revocation hearing . The first part is to determine whether or not a preponderance of evidence exists to believe that you have violated one or more of the terms and conditions of your release. If I do so fmd , we will continue with the adjustment phase of the hearing where we will see how you have been doing since your release and what kind

of plan is in place for the

waive the reading of the rights?" You say, "yes" because you have already gone over your client's rights with him or her. The hearing officer win continue, "Your attorney has waived the fonnal reading of the rights. Client, you are accused of violating one or more of the terms and conditions of your release." Hearing officer will read the accusations and ask, " Do you admit or deny?" You say, "deny." The P.O. will offer the certificate of parole and other documents and, before you know it, the hearing officer will find by a preponderance of evidence that your client violated parole. If, however, you can put up a good defense to the violation in your cross of the P .O. and any supporting witnesses, move to close the hearing and ask for a "no finding ." You might get lucky. If you are not so lucky, the adjustment phase of the hearing is a good time to let your client testify about how he or she wants a chance to do better and to ask for mercy with your guidance .

future . Counsel , do you wish to

\0 Keep track of your time. Don' t worry: the paperwork will get quicker and easier with practice. Send your voucher in as soon

as you can . It will take the board about 90 days to pay you, so the sooner you mail it in the better.

Now that you are vaguely familiar with the razzle-dazzle world of parole revocations, call the Texas Board of Pardons and Paroles at 512-406-5452 and they will gladly send you a registration packet in the mail. This is by no means a lucrative area of practice, but you will get to help a lot of people who desperately need it and sharpen your skills , to boot.

Sunshine L. Swallers is a criminal defense attorney and is on the HCCLA Board ofDirectors. She likes wajJles, tamales , sky diving, and libraries.

THE DEfENDER

@

Harris County Criminal Lawyers Association Post Office Box 924523 Houston TX 77292-4523 7 1 3
Harris County Criminal Lawyers Association Post Office Box 924523 Houston TX 77292-4523 7 1 3

Harris County Criminal Lawyers Association

Post Office Box 924523 Houston TX 77292-4523

713.227.2404

Fax: 713.699.3727

==================== www.hccla.org

FOR IMMEDIATE RELEASE

THE HARRIS COUNTY CRIMINAL LAWYERS ASSOCIATION'S STATEMENT REGARDING THE NEW DWI DIVERSION PROGRAM

The Harris County Criminal Lawyers Association stands united against the DWI Diversion program announced today by the District Attorney's Office. What appears on the surface to be an act of benevolence is in fact an assault on the constitutional rights of all of the individuals accused ofDWI.

This program will be forced on an unsuspecting and uninformed accused by way of an

overly coercive plea bargain.

diversion program or alternatively 30 days in jail. Currently there are very few jail time offers to resolve a first time DWI. The action by the District Attorneys office is punitive

and not in keeping with their duty to see that justice is done.

Under the new program defendants will be offered the

The diversion program forces defendants to confess and enter a plea of guilty that will result in jail time if they are unable to live up to the requirements of the program. The diversion program requires those participating to give up any and all protections provided by the US and Texas Constitution. This program is an affront to the adversary process and steps on the constitutional protections that all citizens enjoy.

HCCLA repeatedly asked to meet with the District Attorney about this program. Although the DA's office arranged more than one meeting with the judges in private they refused to receive input from the defense bar. The entire defense bar was unethically excluded from this one-sided conversation.

!) lifE DEFENDER

Harris County Criminal Lawyers Association Post Office Box 924523 Houston TX 77292-4523 713.227.2404 Fax: 713.699.3727

Harris County Criminal Lawyers Association

Post Office Box 924523 Houston TX 77292-4523

713.227.2404

Fax: 713.699.3727 www.hccla.org

August 10, 2009

Hon. Jean Hughes,

I am writing on behalf of the more than 550 members of the Harris County Criminal Lawyers Association. HCCLA is aware that the District Attorney's Office has discussed at least one policy change with the county court judiciary (Le. their new DIVERT program). We are also aware that the District Attorney's Office met with judges, individually and as a group, for the purposes of advising the judges of their new policies, to answer questions from the judges, and to formulate courtroom procedures for the implementation of their new program. Neither HCCLA, nor the defense bar in general, was

informed of or invited to these meetings . Further, no public notice of these

meetings was posted or circulated.

HCCLA is seriously concerned that these meetings constitute prohibited ex parte communications between the District Attorney's Office and the jUdiciary. There is concern that these ex parte policy discussions were for the purpose, implicitly or explicitly, of recruiting support from the judiciary with respect to matters that affect thousands to tens of thousands of pending and future cases. Our concern is obviously that such ex parte discussions appear to and likely violate the judiciary's duty to remain neutral and detached -- at least in appearance, if not also in substance. Such discussions clearly create an appearance that the judiciary is involved in supporting the prosecutorial policies and programs.

While the District Attorney is certainly able to set her own policies , those policies should not be staffed with or discussed with the judiciary absent an open meeting in which the agenda is made public prior to the meeting. Allowing the District Attorney to meet privately with the judiciary to discuss policy and its impact upon the courts and individual cases without the presence of the defense bar violates a variety of Judicial Canons.

We are aware that some view these discussions and meetings as merely "informational" and therefore acceptable. HCCLA rejects that view. While some of the meeting may be "informational" in the sense that information is provided, there is no exception to the prohibition on ex parte communications on the basis that the information is merely informative. Calling it merely "informational" sounds good, but it ignores the substance. The recent meetings extended beyond "informational" when the District Attorney's office sought the cooperation of the judiciary for implementation purposes as well as procedural purposes.

We suspect that if HCCLA scheduled a meeting for the defense bar to ex parte advise, the judiciary, as a group, about, for the sake of argument, concerns with the DIVERT program or to encourage the judiciary not to support such a program, the District Attorney's office would likely make the same claim we now make that such communications were improperly ex parte. It should be no different when such meetings are scheduled by the District Attorney's office.

If there are to be any future meetings or discussions with the District Attorney's office, the defense bar, as represented by HCCLA, as weB as the broader defense bar, should be given advance notice of, and an opportunity to be included in any such meetings. To do otherwise is to improperly foster the continuing belief among the public and many lawyers that far too many of the Harris County jUdiciary are little more than an extension of the District Attorney's Office. It fosters an appearance of partiality and impropriety to exclude the defense bar from such meetings -- something we hope is not supported by the Harris County Judiciary.

Respectfully.

QmlA/XdL

JoAnne Musick President

cc: Hon. Patricia Lykos, District Attorney

THEDEFEIIER

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Wendy Miller (center/rant) appeard with Milby High School students Luis Morales and Maria Flores on
Wendy Miller (center/rant) appeard with Milby High School students Luis Morales and Maria Flores on

Wendy Miller (center/rant) appeard with Milby High School students Luis Morales and Maria Flores on Great Day Houston with Deborah Duncan (center back) to discuss Teen Dating Violence Awareness.

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Teen Dating Violence Awareness has been a community service project new to HCCLA during the 2008-09 bar year. This project, which carries the slogan: "It Shouldn't Kill a Texas Teen to Date," has included classroom sessions, television programs and other forms of outreach intended to teach teens that dating violence should not be tolerated.

Local attorneys and judges have hosted eight classroom sessions at local high schools and community events. Sessions also have been conducted for teen shelter residents at the Houston Area Women's Center. Topics have included understanding the differences between a healthy and unhealthy relationship, and how to handle a break-up with a potentially violent person .

HCCLA and the Houston Young Lawyers Association (HYLA) also have helped coordinate two separate segments on Houston television stations. HCCLA devoted an entire episode of Reasonable Doubt to the teen dating violence topic earlier this year. Speakers included Judge Judy Warne, local attorneys Kim Ogg, Beth Barron and Jane Waters, and students from Milby High and the High School for Law Enforcement and Criminal Justice. Our speakers subsequently discussed teen dating violence in a segment that aired on Great Day Houston on KHOU- TV.

HCCLA also participated in an audience "talk back" at Stages Repertory Theatre following a performance of The Yellow Dress during Teen Dating Violence Awareness week (which was February 2-6).

In addition to HCCLA and HYLA, support for the Teen Dating Violence Awareness events has come from the Lanier Law Finn and the Texas Young Lawyers Association.

the Death of Oral Argument

By Patrick F. McCann

B y P a t r i c k F . M c C a n

In recent years, the Courts of Appeals hav e made, after prodding by the defense bar and the general civil bar, significant efforts to revive oral argument after the disastrous implementation of the Texas Rule of Appellate Procedure that made such argument discretionary. However, despite repeated pleas and exhortations that "we really will" grant oral argument, many of those same judges expressed at a recent training some frustration that their offer (and it is a sincere one since I can tell you that in almost 50 percent of the cases where I have asked for it or for a reconsideration it has been granted) has apparently fallen on deaf ears. One court indicated that argument in criminal cases is requested only 20 percent of the time, is granted in half those cases and, yet, more than 40 percent of the time the defense does not show up! So, in the end , they (the Courts, or at least that one) are seeing perhaps one in 20 criminal cases where the appellant's counsel shows up and speaks for his or her client. On the off chance that did not register, let me repeat: one in 20.

Oral argument is a perishable skill, one that does not improve by doing it less . If one were trying a case, and in only one in 20 or so cases did one show up for closing argument, one would argu ably have done less than commendable service to the client. So, please allow me to make, first , a plea to all who do criminal appeals to reconsider your views and approach

on oral argument. Second , let

with my plea: I will find people to help anyone prepare for argument, for everything from mock oral panels to reviews of the brief by my friends (I know I have one or two somewhere) who are willing to donate time and effort, to suggestions for additional briefing post-submission or thoughts about your best tactics for specific panels from some of the more capable appellate attorneys around . There are people willing and able to help, so please be willing to consider asking tbem, or asking someone to ask them, because this is something that I believe needs to change.

me bere and now make a pledge along

Why even do oral argument? The Power of One

One voice matters . One

one mind matters. There are only three justices on a state panel, and these panels are composed, first and foremost, of human beings who enjoy and respect a well-honed argument as much as anyone else docs. They are people, and if one

shows up and delivers, they will listen . Perhaps they will not change a position, but then again,perhaps they will. All it takes is one to sway over to your position, and one has a dissent that may result in re-hearing or discretionary review being granted. The only certain guarantee that one has in thi s business is that if we do not consider it important enough to show up and argue, no one else will listen. One chanc e exisL~ to directly confront those who will decide

your client's life

chance to persuade them?

opportunity to change

why

would we not want the

The fear of doing harm

What exactly does anyone think will happen at oral argument

will perform so badly that the panel will bench warrant your client back to face them and sentence him to more years in prison? Our clients are

already convicted

absolutely nothing to lose by getting a chance to look a justice in the eye and explain why our reasoning is sound and should result in our client's freedom .

that one

we are not the danger here , and if anything, we have

Who will speak for our clients if not us?

We are the last chance our client typically has. We all know the odds of reversal are slim; they are slimmer still when we do not choose to speak for the man or woman whose life is in our hands. For most of their lives , no one has ever spoken to anyone in power for them; we should not add to that list of the silent. We ought, in a better world, to be able to look their mother or wife or child in the eye and say, "\ was there, I stood up, and I spoke for your loved one." It's not much, some days, but it is something.

We have all (myself includ ed)

have become fairly complacent havens for the State to tum to whenever a trial goes awry. Yet, perhaps we can improve the quality of our advocacy, and, ultimately, the results for those we represent. We have nothing to lose by doing so, and I submit, very respectfully, something quite important to gain. My number for those who take me up on this is listed below , and I hope I can count on you all to return the favor so that together we may change a few minds.

complained that the Courts of Appeals

Patrick F. McCann is a past president

at Texas Southern University, and practices in Houston and Fort Bend

County. Those wishing his assistance with oral argument preparation can reach him at 713-223-3805 .

of HCCLA, an adjunct professor

reach him at 713-223-3805 . of HCCLA, an adjunct professor for HOUSTON CITY COUNCIL DISTRICT A

for HOUSTON CITY COUNCIL DISTRICT A

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Investigative Corner: D i 9 ita 1 D N A by Jim Willis As we
Investigative Corner: D i 9 ita 1 D N A by Jim Willis As we

Investigative Corner: Di 9 ita 1

DNA

by Jim Willis

As we continue through the maze that is the information highway, 1 want to highlight general topics that may spark some interest in the criminal defense arena. A catchy phrase circulating the investigative world these days is "digital DNA." All the computers, cell devices, external hard drives, flash drives, jump drives, internet servers, iPods, hand held and gaming devices, digital cameras, social pagers, plus many more devices and sites continue to become permanent fixtures in people's everyday life.

Each device that we come across has the potential to be a very important piece of evidence in any case. Police investigators are quickly seeking out digital devices on their targets to collect digital DNA to assist them in building stronger cases. Defense lawyers need to know how to manage digital DNA so that it does not become contaminated, destroyed or, worse, used against them in court. Ask your clients about all of their digital devices and then begin to collect each piece.

Computer forensics may be an unknown and mysterious discipline to many attorneys, but it is easy to avoid the most common procedural mistakes. First, use a computer forensic examiner and do not rely on your own computer skills. Second, work with your expert to have digital copies made of all data on all devices so that a complete assessment can be made. Your client may state, "I have erased all the images and files." Do not be fooled. Many times deleted data can easily be restored and used as evidence.

As I mentioned in the last Investigative Comer ("The 411 on Cell Phone Records"), you can use cell phones to establish an alibi for your client. Cell phones and cell towers are constantly communicating with each other. Anytime a cell device is used it sends a locating signal to a cell tower. With a properly executed subpoena or court order (and which one you need depends on the cell provider), you can get cell tower data from the carrier. This information will pinpoint a location, usually within a three-mile radius. If there are more than one cell towers in the area, the three-mile radius begins to decrease and the client's exact location can be narrowed.

Interpreting the cell tower data may seem complicated at first glance, but with the right assistance it proves to be a valuable investigative tool for you and your client. If you need assistance with the language for the subpoena or the court order, please do not hesitate to contact me.

These topics are important for any criminal defense case. 1 have just skimmed the surface when it comes to digital DNA and cell tower information. As you begin to develop your criminal defense theories and find yourself needing additional support, contact your investigator for assistance.

In the next Investigative Comer, I will discuss the role ofthe investigator in the criminal defense process.

Jim Willis is a private investigator with Benken & Associates. He may be reached at 7J 3-223-4051 andjwillispi@aol.com.

Last, choose your forensics expert carefully. Ensure that the expert has the technical knowledge, fully understands electronic evidence, and has references.

Forensic Science Resources®

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