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=DEFENDER HARRIS COUNTY CRIMINAL LAWYERS ASSOCIATION OUR BUSINESS IS TAKING CARE OF YOUR CLIENTS. It Sanne era ere eee) a Palen PRESIDENT Nicole DeBorde PRESIDENT ELECT Ear! Musick Pad ae Aa ee na TREASURER Steven H. Halpert SET STs ao Dm ere Pg acs Reg ye Tram ceca io PSEA) ae cer oa ern cel ee pera Pn mE, Lavine PUBLISHER icy CT ea Ror Todd Dupont Pees Pr) EOS ese ng Dr ue CONTENTS 19: 22: 26: 28: 2A Pri 2 CLE Events ::A Word from our President by Nicole DeBorde ining Warriors er on CPS: For the Criminal Defense Atorney by Hilary Unger & Sara Bloome ::HCCLA News Round Up Welcome New Members! HCCLA & Big Brothers/Big Sisters HCCLA Speasks on Teen Alcohol Awareness Update: Harris County Public Defender by Alex Bunin ‘Fair Sentencing Act & Emergency Amendments by Marjorie Meyers ‘Strategy: Check Your Stance by Joseph W. Varela ‘Investigative Corner: E-Harassment by Jim Willis: CLEEVENTS FREE :: Attorney Ready Room :: 7" Floor Criminal Justice Center :: Noon March 24, 2011 | Alex Bunin UPCOMING EVENTS THE NEW PUBLIC DEFENDER'S OFFICE TODD DUPONT'S LEGISLATIVE UPDATE What It Can Do For You / How It Will Work STACI BIGGAR: April 21, 2011 | Robert Fickman SYSTEMATIC TRIAL PREPARATION Vetran’s Court & Medical Treatment in Jail ‘AND MUCH MORE! May 19, 2011 | Josh Schaffer TO BE ANNOUNCED June 16, 201 | JJ Gradoni w/ Gradoni & Associates INVESTIGATION: How To Get Everything You Need For Trial Or Dismissal In Harris County CALL-IN TALK SHOW hosted by todd dupont thursday nights @ 8pm Join us in discussing criminal justice issues in Harris County with weekly guests. Sponsored by HCCLA. Houston Media Source Comcast (Channel 17) ATAT U-verse (Channel 99) www.hmstv.org/streaming.htm a @ @ neve a word from our president T have occasionally heard prosecutors refer to their jobs as “The Lord's Work” or "working for the good guys.” In fact, I chink my own parents were alittle rattled when, in 2002, 1 told them I would soon be opening my practice asa criminal defense attorney. They could see that I was excited about this new endeavor, bur they seemed very confused. ‘Their concern and confusion seemed to emanate ftom the notion that theit previously good deed doing daughter would now be standing up for che citizen accused. ("Citizen accused” might not have actually been the way they described it.) Watching the ‘transformation in my own patent's views and questions about ‘my livelihood bas been a source of helpful i Where my very conser ong will the crook get?", after watching something on the news about a crime, they now more frequently wonder fe parents had once asked, "How “How is the family dealing with this?” Where they once might have assumed that an accuser would seldom lodge a false complaint concerning @ serious matter, they think harder about motivations which might cause misguided, Where they J have once possibly suggested that a certain key 0 the jail house be buried forever, they ate curious as £0 the and sometimes random, finger pointing. possibilities of setting some lost member of humanity back fon a productive path. ‘The realities are that our prisons and jails are bursting at the seams, There is no fail proof way ot even fail proof science guaranteeing that we convict only the guilty. We can longer, asa society, loudly demand hang ‘em high sentences ‘without wishing the very failure of our justice system upon ourselves, Serious consideration needs to be taken regarding Nicole DelSorde options for solving offenders the likelihood the to maximize the likelihood that they can reintegrate as problems to minimize hey will recurn to the system and positive, productive members of our society. A rigorous dlfense needs to be made available ro every defendant in frder to make it more likely that the justice system willl work more accurately. Thoughtful and intelligent judges and jurors seem to be more aware of the need for problem solving instead of political chest pounding harsh sentences. What a great opportunity for judges as leaders to set che tone for problem solving by choosing sentences with any eye coward setting a productive citizen back into the world con a pach coward successful productive ciizenship. [As defense attorneys, we can continue to do our job better by helping co come up with productive alternatives to overzeslous sentences. Money and space ate a limited resource in the criminal justice system, and for a change, we ate in a peefect position to be a part of the drive towatd positive solution, ‘An example of positive change in our justice system can be found right here in Harris County, We can all be proud of Judge Marc Carter, our own past president Pat ‘McCann and Staci Biggar along with prosecutor Shannon Davis and coordinator Mary Covington and othe juse saw a successful group graduate from Harris County's who Veteran's Court, These citizens accused also happened tobe veterans. The team of Judge, defense attorneys and prosecutors was able co see chese men and women through, problems like addiction to a positive outcome without harsh prison sentences. rweocisr @) a word from our presiden By involving these defendants in their own problem solving, and by taking the time to see chese solutions through, many lives have been changed for the better. Congratul yyouall, To make this happen, che ceam had co stare with the legislacure and create a program. They had to take the time and effort to bring the program into existence and make it ‘work, IF these people had not made che Vetetan's Court success, what would have become of the defendants who were just sentenced, business as usual, and released out into society and the end of whatever sentence chey completed, problem ‘unsolved? What can you do to prevent one more person from being scuffed inco the already bloated prisons and jails? ow continued Ie boils down to this: society can either spend enormous amounts of money to continue to break records for per capita incarcerations, or they can work toward repairing che lives of hose who come through the justice system. Vengeance will not relieve the justice system's pressure valve. Maybe it's time we stat asking ourselves who is working for the good guys after all? Jails and prisons break up families and take away the future one person a a time. Maybe sometimes there are no real options. But sometimes options do exis. Isn't the defense attorney in one ofthe best positions to problem solve and fepait damage? You have the ability co help give out new chances, What a ig responsibilty! And, as my very pro law enforcement parents now say when they hear that I am standing up for a citizen newly accused, "Good Luck!” An inheritance nobody wants. Without intervention, 70% of children of prisoners will follow their parent into prison themselves. One-to-one mentoring with children who have a parent or relative in prison can help break the cycle of incarceration. Help us break the chain. Become a Big Brother or Big Sister today, or recommend us to the family of a child who needs a little guidance. @® woes Bae AMACHITEXAS ‘www-gobighouston.org| (713) 271-5683 WINNING WARRIORS ‘Tax Fraud? Conspiracy? Not for Casey Kiernan’s client! Congratulations Casey on a job well done in federal court, one of those places that seldom hears a two-word verdict. Casey battled alongside co-defendants and their counsel while cooperators testified against his client and still walked out with a Not Guilty on each of his client's, counts In near back to back trials, Vivian King secured a Not Guilty for her client accused of murder in the 337th District Court, Despite a 40 year pre-trial offer and a taped ‘confession”, Vivian's client now has an expunction. It was a one day jury trial in CCCL #4 on a no test DWI, ‘Washington Avenue stop at 2:05 AM by HPD DWI Task Slory beginning to found familiar....Well, back in familiar territory, Danny Easterling knocks another one ut of the park with a 35 minute Not Guilty verdict. Jordan Lewis is making the rounds. This time in Montgomery County. And, yes, another Not Guilty! Joshua Willoughby secured the two-word answer clients love to hear in his Assault-Family Member trial after 45, ‘minutes of jury deliberation (court directed out the state on the first paragraph), I's not always about the law...Congratulations to Dan Cogdell for finishing the Baja 1000 - one of the most dangerous, grueling races in the world, Dan Rode 420 miles himself due to his teammates fatigue and injuries. Not only did he finish the race but he also took Sth place! That "Never Give Up" attitude is also one of the reasons he is one of our best lawyers. When not all victories occur in the trial court, count on Peyton Peebles for round two. Peyton obtained a reversal and judgment of Acquittal on a felony marijuana case out of Angelina County. And, in a unique twist, the appellate court also mandated that the State of Texas pay ALL costs of the appeal Why appeal when you can simply get a new trial? Well, it’s not that simple! But with hard work, investigation, and a strong hearing, Brian Wice and Carmen Roe got a motion for new trial granted in the 230th in an aggravated sexual assault case on an ineffective assistance of counsel claim, Houston is home to two of the best! NACDL announced its “Best of 2010 DVD” with presentations by the 12 highest rated speakers nationwide, including our own past president Robert Fickman and member Tyrone Moncriffe. Congratulations to both for their outstanding, service to lawyers across the country ven @) WINNING WARRIORS And the hits keep coming...Matt Skillera won the 2 word verdict in a no-test DWI in CCCL3! Jeff Blackburn won a jury trial for his client from Oklahoma with cancer, a marijuana prescription, and ‘medicinal marijuana in his possession in Amarillo, With only 15 minutes of deliberation, there's another Not Guilty In yet another chapter to her string of victories, Vivian King got another Not Guilty in federal court in a medicare fraud conspiracy case. Richard “Racehorse” Haynes...need we say more! Well, maybe just a few words: Racchorse traveled up north to Montgomery County for a quick 30 minute Not Guilty on an Aggravated Assault of a Family Member: ‘And this is why Racehorse is still a Legend! Just the facts, ma'am: 0,11 BAC, tumed down DIVERT, State flew in Officer Hattan, and the jury said Not Guilty. Congratulations to Tyler Flood and second chair Matt DeLuca. V/I/11, what a lucky day!At least it was for Tad Nelson’s client in Court 11 One of our new members and up and coming lawyer, Jason Joy, represented a client on a DWI (second, offense) in Harmon’s court. After winning the contested, ALR, he was able to procure a dismissal on trial date on the DWI. Beat “em without even going to trial! Nice work, Jason! Who says vomiting is bad for a client accused of DWI? Not Jed Silverman! Jed used the law with the facts and won a suppression motion, resulting in a dismissal, after showing the court that his client’s regurgitation, compromised the breath test. we ere Half the battle is just getting the Court of Criminal Appeals to even hear the case, Nick Hughes did just that...PDR was granted in his case just as he joins the ranks of the appellate division for the Harris County Public Defender’s Office. With another success for the HCCLA second chair program, Temple Ramming joined veteran David Ryan, to secure a 19 minute two word verdict in a prostitution, case in County Criminal Court at Law No. 2, In a noble pro bono effort, Mark Bennett dispensed a little justice for his client by appearing in municipal court and filing motions to quash two informations. Good job, Mark! He stepped up to help in a time of need, Though we don’t have a lot of details, a big win is reported for Margy Meyers, Tim Crooks, and Margaret Ling over at the federal public defender’s office for their work resulting in a reversal/remand and a reversal/acquittal in a major drug conspiracy Putting the State to its burden doesn’t always close out a case. Alvin Nunnery got a mistrial for his 17 year old client after a hung jury in Ruben Guerrero’s court on @ non-death capital Jed Silverman, there’s @ name not to forget. And here’s another Not Guilty in a driving while intoxicated case; this time in County Criminal Court at Law No. 7. The Sentencing Guidelines aren’t exactly what they used to be, and now is the time to challenge them! Daphne Pattison set the pace for this challenge and attacked the guideline enhancement for a “resulting death” in her client's alien smuggling case. The court rejected the enhancement based on Daphne's objections! Remember, you can’t get what you don’t ask for....most of the time! Her client must be a “fall” as he pulled off the orange jumpsuit just fine in front of the jury! Shanna Hennigan represented her client well and received a Not Guilty in County Criminal Court at Law No. 10 on a possession of ‘marijuana and unlawful carrying a weapon while her guy was in the HCJ orange! ‘Though her client has had a “habit” of being convicted, Mary Moore pulled out the stops and received a Not Guilty for her true habitual client in the 174th District Court in a felon in possession of a weapon case. With a client maintaining his innocence despite the odds, ‘Todd Dupont, Rodney Brown, and Bryan Garris did not disappoint! Their client heard those two magic words: Not Guilty in the 262nd District Court on an indecency with a child case Two Wins! Richard Moore got a two word verdict in ‘an assault-family member jury trial in County Criminal Court at Law No. 4 and then turned right around and defeated the alleged victim's application for a protective order in family court. Mary Acosta wins on appeal! She’s really kept this one quiet, but we've heard she challenged the sufficieney of the enhancements and won a reversal! Veterans Court is a huge success and celebrates its first round of graduates! Thanks to members Pat MeCann and Staci Biggar for their efforts in bringing about not, only new legislation but also a successful veterans court program in Harris County. Pat and Staci respectfully thank Judge Mare Carter for his work on the Court as well. This program would not be possible without each of their involvement, time, and dedication! Another job well done!! Another PDR? Yes, folks, the CCA will be busy. Peyton Peebles convinced the CCA to hear @ 23 year old murder case wherein Jim Stafford originally convinced the trial court to grant a motion to dismiss on speedy trial issues. With the Court of Appeals reversing the trial court, Peyton has the Court of Criminal Appeals grading the lower courts papers! Studying, preparing, essays, multiple choice? Why would anyone want to take the bar exam again? Well, that’s exactly what some of our members have done. Congratulations to Patti Sedita, Jane Vara, JoAnne Musick, Brent Mayr, John Floyd, and Kristin Guiney for becoming Board Certified in Criminal Law by the: ‘Texas Board of Legal Specialization A JPRIMER ON CIPS: FOR THE CRIMINAL ai ATTORNEY & : Data Oro Rares Conta To those who have been subjected to its ediets, the office of Child Protective Services (CPS), which isa subdivision of the Texas Department of Family and Protective Services (TXDFPS), seemingly operates with unfettered power. Once targeted for investigation by CPS, a family can be under the agency's microscope for years, caught up in @ maze of administrative blinds and obstacles. I's no wonder that the mere threat of CPS involvement is enough to make most people cringe. For this reason, if you represent someone who may be dealing with potential CPS involvement, itis important that you become proactive by either consulting with an attorney who is experienced in handling these matters, or by advising your client to do so. In the event that you represent someone who doesn’t have the money to hire an attorney, you should be aware of what CPS ean and cannot do, so that you ean atleast give your client some slight advantage by alerting hinvhr as to what may be coming down the pike CPS investigations generally are initiated by a call, which can be anonymous, alleging the abuse or neglect of a child calls are answered by intake workers who are charged with the responsibility of determining whether the allegations warrant an investigation, According to its mandate, CPS should only initiate an investigation when there has been abuse or neglect, or the risk of abuse or neglect, by a person responsible for the child’s care, custody or welfare.* CPS prioritizes referrals according to the severity and immediacy of the alleged harm, or threatened harm, with “Priority 1” referrals requiring immediate action.® Since CPS investigations and termination suits are civil in nature, the Sth Amendment has been held not to apply ‘meaning that there is no right to avoid sel/-inerimination, However, the Fifth Circuit has held that the Fourth Amendment does apply.* Therefore, in conducting any investigative action where CPS wishes to enter a home to transport or remove a child, CPS must have consent, a court order, or exigent circumstances.’ To a lesser extent, the Fourth Amendment is also implicated when CPS wishes to transport a child from school for purposes of either an examination or an interview.‘ Also in such circumstances, there are notification requirements - to the parent or guardian - which must be met at the conclusion, of any such interview or examination,’ However, there is a caveat. In any case where there is a request for an interview or examination of a child, whether or not the child must be taken out of school, the notice requirements may be bypassed if CPS believes that such notice would endanger the child, or ifsuch is the opinion of another law enforcement agency seeking the examination.* CPS mandates that an investigation should be completed within 60 days.’ Upon completion ofits investigation, CPS is required to make a finding: 1) as to the veracity of the allegation(s); as well as a finding 2) relevant to an overall disposition of the matter. The burden of proof at this stage is “by a preponderance of the evidence.” In stating its conclusions, CPS typically uses the following terminology:” J] “Yesson to belive” (RT that abuse or neglect has occurred; 5D “ruled out”(R/O); that abuse or neglect * has not occurred; S33 “moved”; before a conclusion could be drawn; “unable to determine” (UTD); none ofthe above AL aispositons ae appropriate; “unable to complete” (UTC); no conclusion could be 5) drawn because the family could not be located or was unwilling to cooperate; » “administrative closure”(ADM); where CPS (GB; determines, for whatever reason, that the matter should not be pursued, It is at this juncture, at the conclusion of an investigation, when families - or their attomeys - must be especially alert and vigilant in monitoring their communications with CPS, and in making appropriate responses to CPS, After dispositions are noted, CPS will conduct a risk assessment in order to determine whether there is a reasonable likelihood that children in the family will be abused or neglected in the foreseeable future." If there is any lingering concem, CPS can request that a family to perform certain tasks, which are formulated as “Family Service Plans”. These tasks are the bane of families, as CPS just never seems to be satisfied as to their completion. ‘That is why it is extremely important for clients to obtain representation before acceptance of any Family Service Plan, In the event that CPS determines that the Family Service Plan has not been complied with, or that circumstances continue to exist which warrant the removal of child, CPS then will take their case to court. As previously stated, in most circumstances CPS must obtain a court order prior to the removal of a child.” However, if exigent circumstances exist, CPS can remove child without a court order, but, in that event, an ex parte hearing must be held on the “first working day”, but no later than 3 days, after the removal." caso continued: A PRIMER ON CPS: FOR THE CRIMINAL DEFENSE ATTORNEY Once the child is removed, a suit will be commenced and the parents will be served with process seeking: 1) termination of parental rights; and/or 2) a conservatorship. The Texas Family Code allows for the removal and termination of parental rights for the grounds, listed in Tex. Fam. Code 161.001. Criminal defense practitioners usually deal with CPS issues in one of two situations: 1) allegations of domestic violence; or 2) allegations of abuse of a child. The remainder of this article will discuss these two scenarios and how to get needed discovery ‘SCENARIO #1 - THE DOMESTIC VIOLENCE CASE Initially, the attorney represents a man who is accused of “assault on a family member,” and the complainant, who wants to drop charges, either files an “Affidavit of Non-Prosecution” or simply refuses to cooperate. At that point, the case gets assigned to an FCLD prosecutor, who not only refuses to let the case go, but who also threatens to get CPS involved. Despite these threats, itis important to remember that, although persuasive, @ call from a tor does not automatically mean that CPS is going. te an investigation, or that a Judge is going to sanction removal. ‘When counseling a woman who is facing CPS involvement because of allegations of domestic violence, the following Family Code provisions should be kept in mind: ‘Tex. Fam, Code 161.001(1(D) allows for termination“... ithe Parent knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.” This includes situations where a parent allowed children to remain in an environment where domestic violence has oceurred.15 ED Tex. Fam Code 161.001(1 XE) allows for 1 termination where the parent either “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of [a] child” This provision has been interpreted to include 2 course of conduct which exposes a child to domestic violence. “The words “course of eonduet” are key here as a single act of| domestic violence isnot enough to trigger this provision.” @ wesc Gp Tex. Fam, Code 161,001(1 (NM) allows for 2D termination where the parent has “constructively abandoned the child who has been in the permanent or temporary managing conservatorship of [CPS] .. for not less than six ‘months, and .. the parent has demonstrated an inability 1o provide the child with a safe environment.” ‘This includes situations where the parent has exposed the child to violent conduct." In this context, the attorney must try to evaluate the quality of the recantation. As attomeys know from experience, and despite the claims of social workers (and FCLD prosecutors), not all recantations are initiated because of “blind love” or the need for financial support. False or exaggerated claims of domestic violence are all, too common, and, once made, they are almost impossible to retract; they take on a life of their own in the criminal Jjustice system, Exacerbating the problem, women who wish to recant are threatened not only with CPS involvement, but with the possibility of facing criminal charges for filing a false report, and even with the possibility of adverse ramifications in custody battles. When counseling someone who is threatened with CPS. involvement, you need to consider whether the alleged abuse was part of a course of conduct, or whether it was an isolated event?” It also is relevant to discover whether the children witnessed the abuse, or were even living with the alleged victim at the time the abuse occurred? However, even ifthe answers to the above questions are affirmative, courts still are unlikely to terminate rights, or even order removal, where the sole allegation is domestic abuse and where the spouse has separated herself from the alleged abuser, Thus, if the parties have separated, and if the ‘woman has indicated her intent to remain separated, her mere reluctance to participate in a prosecution is unlikely {0 trigger any substantial CPS or judicial involvement, SCENARIO #2: ALLEGATIONS OF CHILD ABUSE Because a criminal defense attorney may be called upon to give advice to a client during any stage of a child abuse investigation, the practitioner should be aware both of the seope of CPS powers as well as the rights ofthe accused in such circumstances, CPS investigations are conducted by specially assigned investigators who are tasked with conducting interviews, performing background checks and gathering documentary information. They are required to do the following: Il Cheok the abuse and neglect background of every family member and person in the home (note that this will bring up instances when an individual may have been a victim of childhood abuse or neglect as well as if an individual was perpetrator or alleged perpetrator of abuse or neglect; each instance will be considered a CPS: “hit”; if your client was a victim make sure that thi clear whenever prior CPS history is discussed in Court); Interview and examine the victim; Interview and examine other children in the home; Interview each parent in the home; Interview the alleged perpetrator; Visit the home; and ‘Check the criminal background of the alleged perpetrator.” NIGa Bee by If armed with good information, itis in connection with a few of these requirements, enumerated below, that the practitioner can be especially helpful to the client. VISITS TO THE HOME ‘The CPS investigator will attempt to visit the home where the child resides. In order to enter the home, the investigator must get consent which is clear, ‘unequivocal and voluntary from a person able to give such consent.” If consent is refused, an investigator may enter the home if he has a Court Order or if there are exigent circumstances necessitating entry. Consent to enter the home is not permanent and it may be withdrawn. Just like in a search warrant situation, if you become ware of CPS entry into your client's home, you should be ‘on hand to advise your client. It is advisable that you bring along another party in the event that an independent witness is needed, INTERVIEW OF THE CHILD AND OTHER CHILDREN WHO RESIDE IN THE HOME ‘The CPS investigator's interview of the child may take place in the home, school or other reasonable place. As Fourth Amendment rights are implicated, a parent can, absent an order, refuse an investigator’s request to enter the home in order to interview or examine a child. However, as stated above, there are a number of ways that ‘an investigator can interview a child at school, without either parental consent or notification. In general, without either a warrant or a court order, CPS has limited power and parents have no legal duty to help or aid an investigation. Indeed, a parent's intentional hindrance of an inyestigation is not a law violation and it will utterly confuse most investigators." parent will, however, face criminal penalties if they move in an effort to interfere with an investigation. ‘Assuming your client has successfully thwarted the investigation up to this point, CPS’s next move will be to file a Motion to Investigate. The granting of this Motion effectively forces your client to cooperate. However, it also makes it harder for CPS to conduct its investigation in secret as you would now be entitled to all that is discoverable pursuant to the rules of Civil Procedure. ‘The discovery rules are especially important as you would be entitled to see a redacted intake file prior to your client making any statements. Obviously with this discovery, you could better advise ‘your client as tothe prudence of speaking with investigators. continued: A PRIMER ON CPS: FOR THE CRIMINAL DEFENSE ATTORNEY INTERVIEW OF ALLEGED PERPETRATOR Although the investigator will contact the allezed perpetrator (your client) to set up an interview, they likely will NOT supply any details or information regarding the allegations prior to the interview. Ifyou are in the unlikely situation where your clienthas the foresight to contact you prior to making any incriminating statements, you should immediately provide CPS with a letter of representation stating: (1) ademand that you be notified of every hearing, meeting and potential interview; and (2) that you are not giving permission for CPS to talk to your client outside your presence, Even so, itis advisable that you make it clear that your client is not refusing to cooperate with CPS out a lack of interest in the child, but that your client is simply being cautious because, unless and until itis established otherwise, there may be possible consequences to your client in a criminal prosecution. Make it clear that this is not an admission by your client, bt, rather, a prophylactic position being taken on your advice. ‘The letter of representation should be sent to the CPS investigator, the investigator's supervisor and the program director (“PD”), You should constantly remind your client that he/she has refused part refusal will need to be maintained, meaning that the client should have no casual conver regarding the allegations. Ifthe alleged perpetrator is in police custody, CPS will need to get authorization from the officer to conduct the interview, Be certain that the investigating officer is, notified in writing that the refusal to participate extends to interviews by correspondence with CPS Although full and unguarded participation with CPS should generally be discouraged, ifthe alleged perpetrator also is the child’s parent, he/she may want to participate, in a limited capacity and with his/her attorney present, in order to gather information about the CPS complaint and to continue to be informed about the chld’s status, health and placement. A parent also should provide names of relatives for possible placement for the child. Generally, the parent should maintain interest and involvement with the child for the sake of the child’s well-being, especially if the parent hopes to have any possibility of reunification with the child. ACPS interview with parents or alleged perpetrators must include the following: +1 Av explanation ofthe nature oF the report and the reason for the eontact; ©, An explanation of CPS’s role and legal = responsibilities; 3 Discussion of the allegation in the report; ‘A request for a response or explanation for the allegations — your client should be informed to politely refuse to discuss or explain - the client should only listen; and = An attempt to engage the family in ensuring the »> child’s safety and possibly creating a safety plan as portions of the safety plan is likely to include eounseling or sessions with a therapist, the client should be advised not to proceed without the advice of a lawyer: LITIGATION: WHAT TO EXPECT AND HOW TO PARTICIPATE If the case is moved from the “investigative stage”, and a civil suit is brought by CPS, a parent should expect multiple court hearings concerning the removal and placement of the child as well as CPS’s goals and the status of the parents, with respect to the completion of their service plans. There are also Permanency Planning Team (“PPT”) ‘meetings conducted through CPS which address strengths and weakness of the family systems, services required and, the agency’s goals for the family. A parent should make every effort to attend all hearings and meetings, but should, attend with the understanding that he/she should listen only, make their attendance clear, but not speak or reveal any. information due to pending or possible criminal charges. This is especially important during the in-court proceedings, as the temptation to explain will be HUGE and that despite all appearances of civility, neither the Court, the County ‘Attomey, nor the attorney ad-litem will remind your elient, that anything that they say could be used against them, GETTING CPS RECORDS To get a redacted copy of CPS records, you will need to send a subpoena to the caseworker. If you do not know the caseworker’s name or contact information, in Harris, County you can call CPS at: (713) 394-4000. You will need to provide either the child’s name and date of birth or the parent’s information. The CPS website can be found, at: www.dipsstate.tx.us. If you are having trouble getting, subpoenaed documents, call Ollie Bedford, Regional Attomey, at (713) 767-2641. CPS will file a motion to quash so you need to be prepared to argue the relevaney of the requested materials. ‘As with all subpoenas, you should provide as much information as possible, We have been successful using the following language: “Documents Requested”: “The entire Child Protective Services case file regarding Jane Doe (DOB: February 14, 1984). Please provide all tangible items, recordings, or reproductions of any visual or auditory information, including, but not limited to papers, books, accounts, drawings, graphs, charts, photograph, electronic or videotape recordings, data, and data compilations, however made, whether handwritten, typewritten, or printed material, drafts, duplicates, carbon copies, photocopies, e-mail, scanned documents, digital documents, and all other copies. The relevant CPS case involves Joey Cute Kid (DOB: February 29, 2000) and John Doe (DOB: January 1, 1984). The investigation was, conducted in Harris County, Texas and the case worker's name is Take A. Kid,” CONCLUSION Although armed with the information provided in this, article, you won't be able to solve all of your client’s CPS, problems, but you will be able to mitigate some of the effects, CPS involvement has on the criminal case and at the same time help your client until he/she retains an attorney who is, experienced in handling such matters. | With special thanks to Steven Herat for is cling asian. 2 Tex. Fam. Code § 261.001(1,4).(9). 3 at§ 261.0108. 4 Gatos v Tex Dep. OF Protocive & Regulstry Services, 537 F.34 404 (th Cir. 2008) 5a acazo. 8 td 3438 ("before a social worker ean remove a child fom a public schoo! forthe purpose of ntrvicung him in central Tocation without court order, the social worker must have 3 ‘eosonable boli tht the child has Been abused and probaly il ule frter abuse upon bis tum home at the end of he School day") Tex, Fam. Code § 261.3110.."(CPS] shall mak a reasonable effort before 24 hours afte the ie ofthe interview ot examination fo nlf each arent ofthe child and the legal fuardin of the cil fone hasbeen appointed, ofthe nature oF the allegation and the Fe thatthe interview o examination was conducted”) 81d at§ 261311 6) & (8) 9 PS Handbook, em 2223 et eq 10 4oTex. Admin, Code § 70081 (a & (b); CPS Handbook Toms 2271 & 22711 11 CPS Handbook lem 2235, 12 40 Tex. Admin Code §700704( CPS Handbook tm 255. 13 Tex, Fam. Code § 262.101 4 ta §262.106 1S tne NLR, 248 S.W34 07,818 (Tox App. Fon Wort 2007, ‘i pet) (mother endangered chile in par by slowing them ‘o remain nan envionment where she knew domestic violence and drug abuse our. 16 a; inse CH, 89 8, W.3d 17 (Tex 2002) (evidence of drag bine slong with violence directed at spouse may constiite audangeren) 17 Inge RW., 129 SW.Ad at 738(A singe act or omission by the parent is iufiien 1 suppor temisation unde (1) 18 Perez v. TDPRS, 18 S.W.36 427, 436 (Tex.App Paso 2004, no pet) (usband's physical abuse of wife in font of hilton was evidene of inability to provide sa environmen you represent the criminal defendant, you also need to comsider conflict of intrest issues 20 CPS Handbook lem 2224.1 2 ja, ar 2245 22 4a 2245.15, 23 “Tex. Fam. Code § 261.303 (intentional interference is contrary to the family code), 24 14, at§ 261.3032 25 CPs Handbook Section 2243.3 Hilary Unger - Unger & Hershkowitz, Atorneys at Law 510 Bering Dr., Suite 300 | Houston, TX 77057 713-917-6878 Sara Bloome 3730 Kirby, Suite 1200 | Houston, TX 77098 713-834-1136 LO Ne ey Mv Ley Cee etd Se Cea eo Cea Rea Mark L. Mitchell Ryan Deck a Cheri Duncar eet ee aT eer) Ree re eee eee) Deans Shaw Clifford od HCCLA & BIG BROTHERS/ BIG SISTERS “Celebrating Amachi AlLStars" events scheduled for this bar year include Houston Aeros game (Jan, 16), Houston Rackets game (Feb. 5}, luncheon with a local sports celebrity as the keynote speaker (March 12), and a Field Day with B-6-0 at a local park (Apri 9). “Celebrating Amachi All-Stars" are sport-themed “Big-For-a-Day” events for the cildren without assigned permanent mentors in the ‘Amachi Texas Mentor Program of the Big Brothers Big Sisters of Greater Houston (BBBS]. The events hosted by the Houston Young Lawyers Association [HYLA] inthe 2010-2011 bar year highlight for the children the importance of physical fitness and “living healthy” and are made possible through a grant from the Houston Young Lawyers Foundation and the continued support ofthe Harris County Criminal Lawyers Association The Houston Aeros and Houston Rockets games have proven to be very popular with both the children and mentors {with no problem finding volunteer mentors for these two events}. Nine children took ‘advantage ofthe “chilly” night with the Aeros and twenty-one children ‘are scheduled to attand the Rockets’ game, All the children attending the events received the personal attention from a mentor (or sometimes. ‘even two mentors por child) A very special “Thank You" goes to the Houston Aeros organization (Ojinga Green-Director of Marketing) for graciously providing a scoreboard announcement greeting to our group, as wal as fre tickets and tshirts forall children and mentors. Thanks. also to the Houston Rockets organization for providing a scoreboard announcement and forthe extraordinary generosity of Rockets player Brad Miler for donating all the tickets for BBBS Amachi children. HCCLA Speaks on Teen Alcohol Awareness “Teen Alcohol Awareness” (TAA) events educate teenagers about the dangers posed by alcohol consumption, and drinking and driving in particular. TAA events are organized by Houston Young Lawyers Association (HYLA) with the support of speakers from the Harris County Criminal Lawyers Association. TAA events consist primarily of live presentations for teens led by attorneys and law students at various Houston-area high schools. The project overall stresses making “smart choices” to avoid a teen ending up facing a legal situation involving alcohol. Approximately 5,000 persons Under 21 years of age lose their lives each year as a result of underage drinking, And the early initiation into alcohol use is associated with increased risk of subsequent alcohol use disorders and increased risk of involvement in violent behaviors, suicide attempts, and other problematic activities for teens. HCCLA and HYLA proudly coordinated with Episcopal High for the school's “The Law” day in 2011 presented to the Sophomore Grade Level Class. “The Law” event lasts two weeks and educates students about high-risk behaviors (drugs, alcohol, eating disorders, etc.). January 13th was all about Alcohol Awareness. In addition to the TAA informational sessions, the school day included the heart-wrenching "Shattered Dreams’ Program, a dramatization of an alcohol-related crash at the school campus - complete with police, EMS, emergency room treatment, care-flight helicopter, family notifications, a local funeral home "service" for the teen “victims” and arrest/booking of the drunk teen “driver” killing four teens. Volunteer speakers from HYLA and HCCLA helped conduct the three informational sessions covering the legal consequences involved when teens and alcohol mix. HYLA and HCCLA speakers were joined at each session by a MADD representative, HPD Task Force representative, and prosecuting attorney. Over 150 teens attended the 1.6 hourlong sessions. Special anks to HCCLA Member Tucker Graves and HCCLA Public Relations Chair Wendy Miller for making this event another success! If you are interested in volunteering as a “Teen Alcohol “Awareness” speaker at an upcoming session for another local school, please contact HCCLA Public Relations Chair Wendy Miller at wendymiller@comcast.net. ELEBRATE WITH US HURSDAY, MAY 12, 2011 SBS een eTGrEeCaeetate rich Vivian King {Lawyer of the Year} OO ae Re Roe Bl cem Cc he Staci Biggar & Patrick F. McCann {Sharon Levine Unsung Hero Awards} @ wesc Jose Rojo {Distinguished Service Award} fetta ene Coes eC taney Dinner & Program at 6:30pm Bree crcce kan) Piece cee (us Bato) seb cuns bere RoC OP EUS RSVP to Vivian Musick: 832-448-1148 $90 for Members & Guests BU e CoCo) Cash Bar | Valet Parking | Business Cocktail Attire TAU Aa aia ia) ‘The Harris County Public Defender's Office began on December 6, 2010 with my first day of work. I had no staff and no permanent space. Through the good graces of the ‘ounty Criminal Courts at Law, I borrowed a room, a computer and a phone. Almost two months later, I have 15 employees. That should grow to 22 by the end of February, We are temporarily housed in Suite 980 of 1310 Prairie. Our general number there is (713) 368-0016, We have been promised permanent residence on the 13th floor of 1201 Franklin, Criminal Justice Center (CJC), by the summer, The extent of Harris County’s contribution to our infrastructure should dispel worries that we are not here to stay. The County will finance construction of the entire 13th floor (17,000 sq. f.) of the CIC. Despite the fact that cour first year is otherwise paid by grant funds from the ‘Texas Task Force on Indigent Defense, Harris County is investing significantly to establish its newest department, De oasi tiie ‘We start with two divisions, The Mental Health Division represents persons charged with misdemeanor offenses when those defendants have been identified as having @ ‘mental illness or mental retardation. The Division Chief is Reynaldo Ramirez. The Appeals Divis misdemeanor or felony defendants appealing from the County Criminal Courts at Law and Criminal District Courts. The Appeals Division Chief is Bob Wicoff. Both divisions have already begun taking cases. ‘When we move to the CIC we will then have the room to expand to include two more div the Felony Trial Division and the Juvenile Division. Within this calendar year, I expect that we will be fully operational in all four divisions. One of the reasons we must stay flexible about our timetable is that this project has never really been attempted before, Harris County was until recently the largest in the United States without a public defender’s office. Most offices started in the 1960's or 1970°s, when eloads were lower, and they grew over time, ee NTINU TRAE Catia i 1 established federal public defender organizations in Southern Alabama, Northem New York and Vermont, but those offices were smaller than what Harris County will roquire. Atthe end of the year, we may have as many as 37 lawyers as well as a corresponding number of investigators, social workers, and administrative staff. Everyone hired is highly motivated, competent, and dedicated to serving indigent criminal defendants, The criminal defense bar can expect substantial benefits from this office. First, because we will not be assigned all, defendants, there is still plenty of work for good criminal defense lawyers secking court appointments. Second, because of my position as a department head, Iam able to speak for the defense bar directly to judges, the District Attomey, and other county officials. Third, because we are an institution, we are able to gather resources in one place, such as brief and motion banks, a website, practice guides, and more. Fourth, we will always be available to help lawyers representing criminal defendants, ‘Thete have been several receptions to make my position and the office known to the public and the legal community. Reverend William Lawson held such an event at the George R. Brown Convention Center. It was attended by county officials, judges, and local residents. Congresswoman Sheila Jackson Lee presented a proclamation recognizing me and the office. The Harris County Criminal Lawyers Association and the National Association of Criminal Defense Lawyers sponsored a reception for me, as did the Houston Bar Association on another occasion. At each event I spoke about the plans for the office. I have also met with Ministers Against Crime, NAACP, and LULAC, and Senator Rodney Ellis. The office has garnered favorable articles and editorials in the Houston Chronicle. Di hwmeU Coe siti) My title is the Chief Public Defender for Harris County, ‘Texas. Previously, I was the Federal Public Defender for the Northem District of New York. In 1999, I was appointed by the United States Court of Appeals for the Second Circuit to establish Federal Public Defender offices in the Districts of Northern New York and ‘Vermont. I was twice reappointed to additional four-year terms. In 1995, before relocating to New York, I established and managed the federal defender organization in the Southem District of Alabama in Mobile. From 1993, to 1995, L was an Assistant Federal Public Defender in the Eastem District of Texas in Beaumont. From 1986 to 1993, I was in private practice here in Houston, where 1 eamed Board Certification in Criminal Law from the ‘Texas Board of Legal Specialization. In 24 years as a criminal defense lawyer, I tried many cases, including federal capital murder and complex white collar fraud. I received the Thurgood Marshall Award for capital litigation from the New York City Bar Association, I was an Adjunct Professor at Albany Law School of Union University from 2003-10, I sit on the Advisory Board of THE CHAMPION magazine. I serve on the National Association of Criminal Defense Lawyers committees on Federal Rules and Fourth Amendment Advocacy, As well as having written law review articles fon federal sentencing and the death penalty, 1 am co-author of O’CONNOR’S FEDERAL CRIMINAL, RULES & CODES (Jones McClure 2011). | feel very welcome to be back in Harris County, the place where I started my legal career, 25 years ago. I am optimistic about the office. I think it will become something that everyone will be proud to support. Family owned and operated since 1971 Bilingual staff with over 100 years of experience Shaun, John, Shannon and Shelby License # 74346 * We advocate a paid in full attorney is a defendant’s best defense + Non-Arrest Bonds - we accompany your client to the jail or from the courtroom 609 Houston Avenue 713.227.3400 Houston, Texas 77007 burnsbailbonds@yahoo.com Interlock An Automobile Ignition Interlock Provider John Burns Laura O'Brien David Girard 609 Houston Avenue 713.223.4424 Houston, Texas 77007 ezinterlock@yahoo.com by Marjorie Meyers, Federal Public Defen ‘On August 3, 2010, the President signed the Fair Sentencing Act, Pub. L, No. 111-220, 124 Stat, 2372 (2010) (hereinafter the “FSA"), into law. In an effort to “restore faimess to Federal cocaine sentencing,” Preamble, FSA, the Act substantially reduced the statutory penalties for possession and trafficking in erack cocaine. The amount fof crack necessary to trigger the ten-year mandatory minimum is raised from 50 grams to 280 grams, and ‘the amount necessary to trigger the five-year mandatory ‘minimum is raised from 5 grams to 28 grams. FSA § 2. The Act also eliminated the mandatory minimum sentence for simple possession of crack. Id, @ wesc ‘No Congressional action comes without tradeoffs The FSA also increased the fine ranges and directed the Sentencing Commission to promulgate a variety of amendments addressing drug sentencing in general The Commission’s emergency amendments reducing the crack Guidelines and addressing the Congressional directives went into effect November 1, 2010, along with the previously scheduled Guideline amendments for 2010, This article first outlines the temporary amendments resulting from the FSA. Second, the article addresses to what extent the FSA and the amendments are retroactive. A. THE FSA GUIDELINE AMENDMENTS 1. Crack The Sentencing Commission chose to continue its tradition of tying the base offense level to the statutory minimums Thus, the new guideline for trafficking in 28 grams of crack is 26 (63-78 months without adjustments) and for trafficking in 280 grams itis 32 (121-151 months). USSG § 2D1.1(@)(4),(1). The marijuana equivalency for 1 gram of erack is 3571 grams of marijuana, Id. n. 10(D). 2, Specific Offense Characteristics for Drug Defendants Pursuant to Congressional directive, the Commission added three new specific offense characteristies for drug defendants. Note that in each case the enhancement applies only to the defendant's conduct, not to all offenses involving such conduct. a. Violence: There is a two-level inerease if the defendant “used violence, made a credible threat to use violence, or directed the use of violence.” USSG § 2D1.1(b)(2). The enhancements for use of a firearm and threats of violence may be applied cumulatively unless the defendant merely possessed the dangerous ‘weapon, in which case the violence enhancement does not apply. USSG § 2D1.1, n. 3(B). b, Obstruction: There is a two-level increase if the defendant “bribed, or attempted to bribe, a law enforcement officer to facilitate the commission of the offense.” § 2D1.1(b)(L1). This enhancement does. not apply if covered by the general obstruction of justice enhancement, USSG § 3CI.1, or the super-aggravated enhancement discussed infra, USSG § 2D1.1¢b)(14)(D), 3G § 2D1.1, 27. ¢. Drug premises: There is a two-level increase if the defendant “maintained a premises for the purpose of manufacturing or distributing a controlled substance.” § 2D1.1(b)(12). Factors to be considered include (A) whether the defendant held a possessory interest in the property, and (B) the extent to which he controlled access to or activities at the premises. Trafficking “need not be the sole purpose for which the premises was maintained,” but must be one of the “primary or principal uses,” rather than an “incidental cor collateral use.” USSG § 2D1.1, n.28. Presumably, this commentary excludes a person’s residence used. occasionally to store drugs. 3. Super-Aggravators ‘The emergency Guidelines provide a single two-level enhancement ifthe defendant receives an aggravating role adjustment and the offense involved one or more of the following: a. Fear and affection: The defendant used “fear, impulse, friendship, affection, or some combination therefore” to involve another individual in trafficking, the individual received little or no compensation, and the individual had minimal knowledge of the scope and structure of the enterprise. USSG § 2DL.1\ AYA). b. Vulnerability: The defendant distributed a controlled substance to or involved in the offense an individual who is (i) younger than 18, (ii) 65 or older, Gi) pregnant, or (v) unusually vulnerable due to physical or mental condition or was particularly susceptible to criminal conduct. § 2D1.1(b\14)B). The vulnerable victim enhancement, USSG § 3A1.1, oes not apply ifthe defendant is covered by this Guideline, USSG § 2D1.1 n. 294). «. Importation: The defendant was “directly involved" in the importation ofa controlled substance § 2DI1.1(b\14)(C). This enhancement applies if the defendant “is accountable for the importation,” that is, he committed it, or committed aiging and abetting type conduct. § 2D1.1, n. 29(B). The enhancement docs not apply ifthe enhancements under § 2D1.1(b\(3)(non-commercial aircraft, submersible vessels, pilot of aircraft or vessel) or § (b)3) (importation of amphetamine and methamphetamine) apply. § 2D1.1,n. 29), wesc @) bees ani ewes SU Trea Yap VUI CT CeN Tes TN eS by Marjorie Meyers, Federal Public Defender 4. Obstruction: The defendant engaged in witness, ntimidation, destruction of evidence or otherwise obstructed justice in connection with the investigation ‘or prosecution of the offense. § 2D1.1(6)(14)(D). ©. Criminal Livelihood: The defendant committed the offense as “part of a pattern of criminal conduct engaged in as a livelihood.” § 201.1(6)(14)(B). ‘These terms are defined in § 4B1.3. USSG § 2D1.1,n. 29(C). A “pattem” mean “planned criminal acts ‘occurring over a substantial period of time.” The term “livelihood” means the defendant derived income through a pattern of criminal activity within a 12-month period, which exceeded 2000 times the existing federal hourly wage, and the “totality of the circumstances” shows the criminal conduct was the defendant's “primary occupation” during that period. USSG § 4B13, n2. 4. Super-mitigator ‘The reduction contained in USSG § 2D1.1(b)(15) is the converse of § 2D1.1(b\(14(A). A defendant who receives a minimal role reduction, USSG § 3B1.2(a), was motivated by fear or an intimate relationship, received no monetary compensation, and had minimal knowledge, receives an additional two-level reduction. The base offense level for all minimal participants in drug cases is also capped at level 32. USSG § 2D1.1(a\5). B. RETROACTIVITY 1. Guidelines Barring ex post facto concerns, the Guidelines in effect at the time of sentencing apply. See United States v. Castillo-Estevez, 597 F.3d 238, 240 (Sth Cin) (citing United States v. Kimler, 167 F.3d 889, 893 (Sth Cir. 1999)), cert. denied, 131 S.C. 457 (2010), See also USSG § IBI.L1-The new crack guidelines took effect November 1, 2010 and apply to all pending sentencings. With respect to the new general drug Guideline enhancements, the ex post facto clause precludes application of mandatory guidelines that increase the sentence, See United States v, Suarez, 911 F.2d 1016, 1021-22 (Sth Cir. 1990); soe ‘generally Miller v, Florida, 482 U.S. 423 (1987). @ wesc ‘The circuits are split over whether the clause bars application of more onerous advisory guidelines. S Castillo-Fstevez, 597 F.3d at 240 (rejecting ex post facto ‘challenge on plain error) (citing United States v. Demaree, 459 F.3d 791, 794 (7th Cir, 2006)); but see United States 148 F.3d 1094, 1099-1100 (D.C. Cir. 2008) (ex still applies), 2, FSA: United States v. Douglas Application of the reduced crack guidelines may offer the defendant no benefit if she is still subject to the old statutory minimums. ‘The FSA does not specify whether it is to be applied retroactively, Congress has codified a general “Saving Clause,” which provides: 4 ¢ 6 CLIENT NEEDS A SI Have your SR-2: © Go to out website and click “Get Started” Complete the information for a quote. Select a Payment option and check the box at the bottom © Fill in Drivers info and (Attorney's e-mail) Purchase the policy and print your SR-22 A copy is E-mailed to your attorney. If you need any assistance or have questions, please call Blaine Ferguson Cell 713-819-9481 Blaine@BlaineFerguson.com www.SR22online.com The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining an proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. L US. § 109. While the FSA merely modifies a penalty, rather than releasing or extinguishing it, the Supreme Court has held that the Savings Clause applies to a reduetion in penalty. See Warden v. Marrero, 417 U.S. 653, 660 (1974) (quoting Bradiey_v. United States, 410 U.S. 605, 607 (1973)). Ibis ths elause that has led courts to conclude that the FSA does not apply to defendants who have already been sentenced. See United States v. Bell, 624 F.3d 80: 814 (7th Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346 (Ith Cir, 2010); United States v. Carradin 621 F.3d 575, $7981 (6th Cir. 2010), In United States v. Douglas, 2010 WL 4260221, at *1 (D. Maine, Oct. 27, 2010), however, the district court concluded that it had authority to apply the FSA to defendants pending sentence. Judge Homby noted that in Marrero, the statute had its own savings clause, “that specifically preserved the harsher penalty for prosecutions prior to the effective date of the statute,” 2010 WL 4260221, at *4 (emphasis in opinion). In an earlier case, the Supreme Court had explained that the previous 1871 Saving Clause “cannot justify a disregard of the will of Congress as manifested either expressly or by necessary implication in a subsequent enactment.” Id. at *5 (quoting Great N. Ry. Co. v. United States, 208 U.S. 452, 465 (1908) (emphasis added in Douglas). The court reviewed the history of the FSA, which included nore than twenty years of criticism that the 100:1 powder ratio was irrational and had a disparate impact on African Americans, Douglas, 2010 WL 4260221 at **1.2,, The ttle of the Act and its preamble indicate that the bill is designed to restore faimess in crack sentencing, and, Congress was so concerned accomplish this, that it directed the Commission to enact emergency amendments as soon as possibl bout the need to that would normally apply at sentencing.. Id. at **2-5, The district court concluded from the history and text of the Act: ‘Congress did not want federal judges to continue to impose harsher mandatory sentences after enactment merely because the criminal conduct oceurred before cenactient,..Congress certainly made clear the urgeney and its concern for fairness; and it gave no signal that it was distinguishing the emergency Guideline amendments that it expressly mandated from the statutory sentencing floors from which they directly flow. In the words of the Supreme Court, it is either “necessary implication” or a “fair implication” that, although retroactivity to those previously imprisoned might not be contemplated, the Fair Sentencing Act of 2010 permits no further federal erack sentencings that dare not “fair.” 1d, at *6 (emphasis added). Indeed, the court would have found it “gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair.” Id, n.57. Qi number of district judges have followed Judge Homby's call for fair sentencing. See e.g. United States v Johnson, No. 3:10-cr-138 (E.D. Va, Dec. 7, 2010); United States _v. Roscoe, No. 1:10-CR:126-JTN (W.D. Mich. Dec. 3, 2010); United States _v. Favors, No. A-cr-00384-LY-I (W.D, Tx. Nov. 23, 2010); United States v. Shelby, No. 2:09. CIB (B.D. La, Nov 10, 2010); Unit No. 1:10-¢r-10004-RWZ (D. Mass. 2010). ‘The enators Dick Durbin and wholeheartedly agree(d}” with Judge Patrick Leahy, have Hornby’s opinion in urging the Department of Justice to seek sentences consistent with the FSA for all defendants who have not yet been sentenced. See Letter from S Durbin and Leahy to the Honorable Eric Holder (Nov. 17, 2010), available at hitp://sentencing.typepad.com/sentencing law and polic ‘y/2010 (cited in Roscoe), These opinions demonstrate that, application of the FSA to defendants who have yet to be sentenced is only * enators ‘wcorrenoen( Subtle! Subtle! They become formless. Mysterious! Mysterious! They become soundless. ‘Sun Tzu' When the defense lawyer walks into a courtroom, what “stance” should he assume? Ninjutsu means “the art of stealth.” Its. practitioners, the ninja, were medieval Japanese masters of guerilla ‘warfare, espionage, assassination, and close combat, both armed and unarmed. ‘The apparently superhuman ability of these black-clad figures to move unseen, appear and vanish at will, penetrate defenses, and confound regular forces made them the stuff of legends then and now. ‘Although many East Asian schools, such as karate, judo and tai-chi, have become primarily sports and conditioning, ‘exercises, minjutsu remains a fighting art, a system of mental and physical training for unconventional conflict Ifthere is a common theme in all its techniques, the theme is formlessness. As the current grandmaster of ninjutsu puts it, When a man can disguise his true intent, and has the sensitivity to recognize the hidden motives of others, he is capable of becoming a shrewd fighter and a difficult adversary. ‘The basic fighting stance for the ninja is shizen no kamae, the natural posture. (See Fig. 1) AC first glance, it appears to have nothing to do with fighting; certainly it does not, resemble the fighting poses that we in the West, atleast, associate with Eastern martial arts. It looks for all the world as ifthe ninja is “just standing there.” @ wesc gf check your strategy: stance by Joseph W. Varela ein Farsi adept Fiarty Ochser ig Nin eg shizen no ROME sn A But let’s examine the natural posture carefully. It has several advantageous characteristics: L. It is the posture in which a person normally stands or walks, ‘Therefore, it is the posture in which he will find himselP if suddenly attacked or threatened. 2. Itdoes not “channel” his movements. A person in the natural pose is free to advance, retreat, move to either side, squat down, jump up, all with equal ease. 3, It does not “telegraph” to the adversary what he intends to do, or how he intends to accomplish it ‘A person in the natural posture, viewed from the standpoint of the adversary, might do anything: fight, feint, run away, maneuver, or produce a weapon. All is possible and the adversary cannot adjust his action until he sees what the ninja does first. F8.2. Stere Pho By ape ting stance, Contrast shizen no kamae with the stylized pose seen in Fig. 2. The latter is nearer to the stereotypical image of a “martial arts” fighting stance, Unlike the natural fighting pose, it gives none of the advantages listed above and indeed implies their opposites. It limits options by channeling movement because from such a position, there are only so many motions that can be made quickly and efficiently. It also indicates which way the ninja intends to go. The adversary now has the advantage of being able to “read” intentions and rely on channeled movements when the fight begins. A person who begins by prematurely assuming the position in Fig. 2 is already half-defeated. When you walk into a courtroom, what’s your “stance?” Do you look like Fig. 1 or Fig, 2? In oral argument in an appellate court, do you walk in committed to a pre-conceived chain of argument? Suppose the panel starts firing questions and expresses doubt about some essential link in your chain of reasoning. Your carefully-rehearsed speech goes out the window. What then? In plea bargaining, do you assume a certain posture which tells the prosecutor too much about what your client would eventually settle for? Even signaling that your client would prefer to plead the case can be detrimental The trial starts. Certainly you have a theory of your case, ‘but did you walk into court committed to a script? And what happens if the wimesses, even your own, deviate from your script? Ifthere is something the defense lawyer can leam from the ninja, it is that the lawyer’s mental “stance,” when he walks into court, should be neutral, flexible, and not committed to any particular action, He should mentally emulate the ninja’s natural fighting posture, prepared for anything but giving away nothing (Fig. 3). Fig. 3. What's y; Photo by ‘our Stance? Author) art of War, Chapter 6 (c. $00 B.C.) trans. Sonshicom. Peter Lewis, Art ofthe Ninja (1988), $Soke Masaaki Hetsumi, quoted in Stephen K. Hayes, The Ninja and Their Secret Fighting Art (1981). ia Sor herseltthere were female minja known as kunoichi ‘caso @) Investigative Corner: E-Harassment ROTORUA In this edition of Investigator’s Comer, I want to continue the path of the latest FAD in investigations. It is the HIP-HOP world of electronic harassment, I am observing @ growing trend of harassment cases being filed, With all the E-media outlets available, we all could find ourselves on the receiving end of such a case. As the crimes become more complex, so must the investigators, Being a “shade tree” investigator will no longer do any one any good. Investigators must stay current on the latest techniques to remain an asset to lawyers. Training is available, but 1 Know time and financial constraints hinder the amount of training one can receive. I want to share some recent training that I received regarding Internet Investigations. The course. presented ‘material related to An Overview of Methods and Uses for Today’s Investigator. This course was informative and surprisingly understandable. I know many of you are like me and think, “I do not understand Computers. They are a different language.” I am here to tell you, this information is easy to understand ‘and a lot fun, With any case that involves electronic messages, you need to know this material, or have an investigator that can assist you through the discovery I am saying all this because the group that presented the material to me provided a disk with all the content for me to distribute, Obviously, all the material would not fit into this article, so if you contact me via email, I will send you a copy of the CD with many resources available to you ‘There is no charge for the CD, just my way of sharing some very good information, The topics include: Email Tracin; * Definitions + Sam Spade + Steps Email Whois Results Internet Profiling ‘Tracing a Usenet Post + Analyzing a Header + Examples of Results Additionally, in the material you will find sample subpoenas like these: Sample language for a subpoena to an ISP for account information: Sample 1 ‘you have a name and want to compare it to IP addresses) YOU ARE ALSO COMMANDED to bring with you any and all records, including but not limited to, subseriber information, including sereen name(s) and/or account name(s), phone rumber(s), address, connection records, to include logon dates and times, IP addresses assigned for each session, origination information for each cal, phone number used for access to the system, news groups logs, e-mail logs, quantity of local storage provided and percentage utilized(non content information), credit, and billing information for any and all accounts held in the name of XXXXXXX X, XXXXXXXXXXX for the period of MontivDay/Year to present, inclusive. Furthermore, ‘company policies and activities pertaining tothe frequency of ‘backup operations and retention periods of same GRACE Never another sleeping lawyer... Sample 2 (Af you have am TP addres and want the account name & addres) YOU ARE ALSO COMMANDED to bring with you the following document(s) and/or objects) The name, address, telephone number, telephone toll records, subseriber number, subseriber identity or identities, length of service, including date(s) on which service began, was interrupted and/or terminated, log in and log out records, and type of service for the following IP 169.207.81.213 on December 31, 2004 between 02:07:00 -0000 0 02:17:00 -0000, and most specifically 02:11:41 -0000. 169.207.81.213 on December 31, 2004 between 03:49:00 -0000 0 03:59:00 -0000, and most specifically 03:54:00 -0000, Furthermore, company policies and activities pertaining to the Frequency of backup operations and retention periods of same, ‘When drafting subpoenas, you SHOULD word INTO the subpoena itself that you are invoking Sec 2704 of Title 18 USC which provides for Delayed Notification of the Subscriber. If you do not, the ISP will forward a copy of your subpoena to the subseriber notifying them of the request and instructing them on how to go about ‘opposing the subpoena, It also slows the process because they now have 14 days to respond, This invocation is not always allowed but works more often than not, Lastly, the materials include some simple yet useful programs for IP searches. If you have children, you may find this information extremely useful one day Remember, One Important Key to Keep the IAC away: Investigate your cases. Until next time, im Willis Benken & Associates - Professional Investigative Services 1214 Heights | Houston, Texas 77008 (O) 713-223-4051 | (F) 713-223-4052 | (C) 832-256-9741 IWillisPI@aol.com even 2 MEMBERSHIP APPLICATION Applicant: Fim Name: Telephone number: Fax: Mailing address: Email address Website: Date admitted to practi ‘Would you like to join the HCCLA listserv?: ‘Type of membership (dues) Student ($25) Expected graduation date: __ Federal public defender (875°) New criminal defense lawyer (within two years of beginning criminal defense practice) ($75*) _~ Regular membership ($150*) Date Signature oF applicant ENDORSEMENT 1, a member in good standing of HCCLA, believe this ry) R ATES applicant to be a person of professional” competency, integrity and good moral character. The applicant is actively engaged in the defense of criminal eases. Date Signature of endorsing member PRINTED NAME OF ENDORSING MEMBER Mail this application to: HCCLA P.O. 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