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winter 2016

spring 2017

with liberty
and justice
for all

1.5 CLE / 5-7PM
500 Louisiana Street / Houston, Texas 77002
turn and face the strange
Visit the calendar at New year, new district attorney in office, new judges on benches,
but we still have the same old fight down at the Criminal Justice
Center. As the new editor of The Defender, I hope to bring you
articles that will be helpful to your criminal defense practice as
well as those that will make you laugh, reflect, and ponder how
you can be a better, happier, less-stressed, less-overworked,
and successful defense lawyer.

Volunteering to take over the reigns of this publication was not

an easy decision, but I wanted to do it so that I could be a part of

save a change in my own way and also give back to the organization
that I love dearly – HCCLA. Being a member of this group has

done so much for me, and I am honored to be a part of it. I have
made some incredible friends and met some incredible people,
some of whom have written for this issue and will be writers of

articles to be published in future issues.

If there is a topic you are passionate about or something you

learned a great deal about because of a case you recently
handled, write about it for us! We are collectively stronger when
we share knowledge with each other, so don’t be shy! We’ve got
Nicolas Hughes writing about Stingray technology this issue,

MAY 11, 2017

and Kate Bihm providing insight on her helpful Powerpoint
presentations that always get the panel talking during voir dire.
The erudite Mark Bennett is writing a series to have us ponder
••• a new method of jury selection, and we are featuring a new

join us for the column in the magazine and on the HCCLA blog – War Stories.
These columns are akin to the chats we have with each other
47 TH ANNUAL BANQUET about the memorable clients, cases, and encounters that only

••• we as defense lawyers appreciate.

HOTEL ZAZA So have a seat, grab a beverage, and enjoy the latest issue of
The Defender! And if you want to contribute, reach out and let
5701 MAIN ST me know. I am glad to have as many writers and cover as many
topics as members want to read in each quarterly issue.

Many thanks,
Lori Botello











the defender STUART KINARD


EARL MUSICK past presidents DAVID R. BIRES
1971-2016 WILL GRAY
Helen Fontenot is a senior at the Woodlands High
School who aspires to be an Illustrator. She plans to CANDELARIO ELIZONDO
pursue a degree in the fine arts and enjoys creating ALLEN C. ISBELL
watercolor, pen and ink, and digital artwork. Most
of her inspiration comes from observing the vast
individuality of people and the music she enjoys. JIM E. LAVINE
Contact the artist @ RICK BRASS
2016-2017 JIM SKELTON
Hccla officers & board GEORGE J. PARNHAM


a word from your president
Tyler Flood
There are few, very few,
that will own themselves in a mistake.
Jonathan Swift

I make mistakes. We all do. Making mistakes is the Not long ago HCCLA was comprised of only around
best way to learn and gain wisdom. The problem is that 200 lawyers. Today, we are pushing 800 members.
some people don’t own their mistakes. I’m not talking HCCLA is powerful and we have taken action that
about firmly believing in an opposing or unpopular has caused good changes to occur, and we will continue
idea and standing behind your decision. As Lawyers, to do so. HCCLA has come a long way.
we are taught to own our decisions, right or wrong, and
we do a pretty good job of that. Today, when the media catches wind of breaking news
in the criminal justice system, they call HCCLA first.
I’m talking about realizing when that decision you When our DA Administration needs to get a message
owned turns out to be obviously wrong. That’s when it out to the defense bar, they contact HCCLA. When
comes time to own it, admit you messed up, and then important governmental committees carry on business,
take steps to make it right. An apology is always a good HCCLA is asked to sit at the table and be an active
start, and then it’s time to deal with fixing the mistake voice in the conversation. When HCCLA hosts its
head on. The benefits are huge. Aside from the mental annual banquet (at Hotel ZaZa this year), everybody
repair it provides, it removes one more un-needed who is anybody will attend: judges, prosecutors,
stressor in your life. I recently practiced this with two defense attorneys, and many other important friends
big mistakes I felt I made: one personal and one with an and professionals in our community. (Sign up now…
HCCLA membership issue. It felt so good to fix them hint hint!).
and move on with life and let them go. My life is better
for it, and HCCLA is stronger.
Harris County Criminal Lawyers Association
As your President this past year, I’ve been entrusted is YOUR organization, and we represent and
with heading up the largest local criminal defense fight for ALL the criminal defense lawyers in
organization in the United States, and so far we’ve had
a good year. Do we always make everybody happy with Harris County.
the actions we take? No. Our job sometimes is to be
the watchdog of the justice system. We are an activist
organization: we take action to right the wrongs we
see happening. We also come to the aid of any of our
members when they need help.

he Winter of Our Discontent Joe Ray Rodriguez left ADAs literally slamming their
fists on the table as D walked on AADW in Galveston.
saw membership rise above in CW was told to leave D’s property and began punching
D, who used a knife to defend himself. The jury was out
some very big ways… less than an hour, including lunch.
•••••••••••••••••••••••••••••••••••••••• ••••••••••••••••••••••••••••••••••••••••
Alex Houthuijzen tried his first case in CCCL1, and Randy Schaffer clearly showed an ADA from HCDAO
came away with a Not Guilty on assault. made promises to a witness and hid it from the defense.
•••••••••••••••••••••••••••••••••••••••• DC434 recommended a new trial.
Eric Davis and Frances Bourliot had the difficult case ••••••••••••••••••••••••••••••••••••••••
of defending a mentally ill mother in a child murder. Natalie Schultz and Pat McCann got a recommendation
After tireless work, the jury returned NGRI. for relief in DC228 where HCDAO was found – again –
•••••••••••••••••••••••••••••••••••••••• to have a deal with a snitch but did not disclose it to trial
Donlee Smith got the 2 word verdict in Chambers counsel. Let’s hope the new HCDAO puts an end to these
County on DWI 2nd. D was parked on the side of the ingrained, unconstitutional practices!
road with an open container, but the jury did not buy that ••••••••••••••••••••••••••••••••••••••••
was operating. Justin Harris scored a 20 minute NG in CCCL2 on .15
•••••••••••••••••••••••••••••••••••••••• DWI. D found asleep at stoplight with open container
Miranda Meador and Te’iva Bell fought the State’s and stocked cooler in backseat. D almost fell during
attempts to intimidate witnesses in an agg robbery, and SFSTs, but Justin showed how the tests were flawed and
convinced the jury in 30 minutes to find NG in DC230. improperly administered.
•••••••••••••••••••••••••••••••••••••••• ••••••••••••••••••••••••••••••••••••••••
Carmen Roe got CCA to rule an adult certification An emotional D let tears flow as Franklin Bynum
improper, arguing the State failed to exercise due convinced HCDAO to dismiss animal cruelty charges
diligence. Carmen and Paul Doyle followed up with a mid-trial in CCCL8.
reversal in COA14 on agg kidnapping for un-objected ••••••••••••••••••••••••••••••••••••••••
jury charge error. Make your appellate lawyers happy by When is a win not an acquittal? When a MoCo jury gives
making these objections! probation to Dustin Neyland’s D after convicting for
•••••••••••••••••••••••••••••••••••••••• online solicitation in DC9.
The State indicted murder but went to trial on agg ••••••••••••••••••••••••••••••••••••••••
assault in DC182. It didn’t matter what they charged, Tyler Flood keeps piling up the wins. NG in CCCL8 on
Wendy Baker and Mark Thering walked D by showing .18 DWI/accident
witnesses were not credible. ••••••••••••••••••••••••••••••••••••••••
•••••••••••••••••••••••••••••••••••••••• D had denied any contact with CW, let alone knocking
Kyle Sampson got a NG on AADW in DC338. out CW’s teeth, right up to taking the stand and asserting
•••••••••••••••••••••••••••••••••••••••• self-defense. After denying a jury charge on apparent
Mistrial in DC184 on CSA for Jed Silverman, danger, a stunned CCCL1 heard NG on assault for Josh
Neal Davis, and Trinidad Zamora. Jed had to cross Hill and Wayne Hill.
examine teddy bear hugging 10 year old CW, Trinidad ••••••••••••••••••••••••••••••••••••••••
found CW’s inappropriate social media, and Neal got Damon Parrish heard the sweetest 2 words in the
CAC to admit advocating for the State. Tough work! courthouse, and more talk about male anatomy than a
•••••••••••••••••••••••••••••••••••••••• frat house beer blast, in CCCL8. Vice tried to make a
Julio Vela got a mistrial in MoCo on DWI, after the prostitution case, but charged D with indecent exposure
Listserv got him some in trial help on an erroneously because D would talk about “d” but not money.
admitted blood draw. JV followed up with NG in
CCCL16 on AFV.


Erik Nelson followed up with NG on indecent exposure Terri Zimmermann and Jack Zimmermann scored the
in CCCL1 by proving D had erectile dysfunction and UCMJ version of reversed and rendered at USAF CCA
could not have been pleasing himself in the doorway as on a sexual assault.
alleged. The jury was out less than 10 minutes, and it ••••••••••••••••••••••••••••••••••••••••
really is time to move along before the manhood jokes Lindsay Lopez convinced a Brazoria County jury the
get out of hand… agg assault was just an assault, worthy of time served.
•••••••••••••••••••••••••••••••••••••••• ••••••••••••••••••••••••••••••••••••••••
Nick Hughes scored in CCA, when the robes agreed Steve Shellist fought a trumped up CSA after well to do
stacking was improper in the same criminal episode. D catches W with another man. A tough panel, the jury
Nick thanks Jules Johnson and Mark Hochglaube for was out 6 hours in DC9 before returning NG.
preserving the error at trial. Nick followed up with a CCA ••••••••••••••••••••••••••••••••••••••••
flip of DC177 for jury charge error on lesser included Kurt Hopke won WHC at CCA. D entered a plea
offenses. bargain to a lesser offense. The lesser offense statute
•••••••••••••••••••••••••••••••••••••••• was declared unconstitutional. CCA held a plea to a void
Megan Bove and Jack Zimmermann had the jury out statute is void.
6 hours over 2 days before getting NG in CCCL10 on ••••••••••••••••••••••••••••••••••••••••
DWI. D was asleep at a stoplight on a feeder road. A jury shuffle highlighted an unusually contentious theft
•••••••••••••••••••••••••••••••••••••••• case in FBCCL2, which resulted in NG for Lloyd van
It was truly a team effort to get COA14 to reverse a Oostenrijk and Andrew Wright. LPO really did not
murder conviction out of FBC. Johnny Pizzatola and like having his statements contradicted by store video
Elan Levy tried the case, Patty Sedita wrote the appeal, and cops.
and Cheri Duncan and Steve Halpert gave important ••••••••••••••••••••••••••••••••••••••••
legal and tactical advice throughout. Jed Silverman and Lee Cox got the 2 word verdict in
•••••••••••••••••••••••••••••••••••••••• 40 minutes on assault in FBCCL1. Homewrecker CW
Allen Isbell scored a published reversal and rendered in got caught by D with H. D went off on CW, but Jed
COA1 on a parties issue. convinced jury D’s conduct was emotional recklessness,
•••••••••••••••••••••••••••••••••••••••• not knowing… yeah, Jed really said that.
JL Carpenter and Christopher Carlson had the ••••••••••••••••••••••••••••••••••••••••
unenviable case of defending CSA in DC184. Jury Michael Abner and Annie Scott scored DV on CSA and
convicted on ASAC, and despite 2 outbursts during after 12 hours, hung the jury on indecency in DC56. They
punishment by D, convinced the jury to give the thank David Ryan with some on the fly research and
minimum 5 year sentence. Learn the lesson – mitigation tactical advice.
evidence matters! ••••••••••••••••••••••••••••••••••••••••
•••••••••••••••••••••••••••••••••••••••• Jason Luong and Nathaniel Pitoniak got the NG
Casie Gotro and Stan Schneider followed up the in DC184 on indecency for a true habitual D accused
recommendation for relief because of HCDAO of groping a cousin. Jury was out less than an hour
misconduct with a new trial ordered by CCA in a high including the lunch break.
profile murder. D is now out on bond while HCDAO ••••••••••••••••••••••••••••••••••••••••
weighs its options. Mark Thiessen got a DV in FBCCL5 on DWI when the
•••••••••••••••••••••••••••••••••••••••• cop refused to return to face cross examination. Mark
Client was tossed in Galveston jail with high bond on followed with NG on .18 DWI/accident in CCCL8; .16
BOH. Russell Webb got D released by filing WHC, and DWI in Dallas; and .16 DWI in CCCL5 for a young lady
GCDAO actually took the time to investigate the matter, sleeping in her car after a 2nd date.
confirmed it was a set up, and withdraw the charges. ••••••••••••••••••••••••••••••••••••••••
Jordan Lewis got NG on .22 DWI in CCCL2.
With the jury just sworn, Fox Curl got a dismissal in

new members
Chad Bernaeyge
Inger Chandler
Belinda Ertel
Ben Friedman
Nathan Hennigan
Hunter A. Hoaglund
Andreea Ionescu
Taly Jacobs
Jisha C. Jaganathan
Truc Le
Mark A Montgomery
Michael Cody Moore
Tolu Omodele Nelms
Krishna S. Ougrah
Aaron William Perry
Dulce N. Toledo

new paralegal members

Chelsea Milcoun
Tyler Flood & Associates, Inc.
Daniela Sotis
Law Office of Philip M. Gommels, PLLC

new student members

Sheryl Ha
Harris County Criminal Lawyers Association


Annual Holiday Party / December 15 @ Kirby Ice House
Judge Jay W & Catherine Burnett Marcos A. Adrogué Justin C. Harris
Carmen Roe Law Firm, PLLC Cordt Akers Joaquin Jimenez
Don Smith Staci Biggar Vivian King
Thiessen Law Firm Booth Richey, LLP The Law Office of Jason Luong
Tritico Rainey, PLLC Alex and Nancy Bunin Melissa Martin
Kelly Benavides Chris Carlson Gerardo S Montalvo
Damaris Alexy Chavez J.L. Carpenter Robert Pelton
Dorian C. Cotlar, PC J.C. Castillo David Reddell
Judge Catherine Evans Mary E. Conn Law Office of Joseph Ruiz, PLLC
Tyler Flood & Associates, Inc. Eddie Cortes Grant M. Scheiner
Eddie Gomez & Antonio Espejo Law Office of Sean Darvishi Servcorp
Law Offices of Bo Hopmann Gordon Dees Sharma & Assoc., PC
Internet Lava, LLC Danny Easterling Jeff Strange
Looney & Conrad, P.C. David L. Garza Vik Vij
The Law Offices of Joe Matthew Law Office of Philip M. Gommels, PLLC Michael Wynne
Mayr, Schiffer, Overstreet & Ganz Tucker Graves Zimmermann, Lavine & Zimmermann, PC
Maverick Ray
The Wadhawan Law Firm with Special T hanks to:
Mekisha Walker & Jill Landsen Kirby Ice House / Tyler Flood / Tucker Graves / Steven Halpert / Christina Appelt
Chival & Craig Washington
Find more photos courtesy of Bob Rosenberg & Russell Webb on Facebook



by Allison Mathis

I don’t think you ever knew my name, but I was going to be your wife.
Our relationship was unusual, to say the least. I was a young(ish) law student,
hurrying from the parking garage I could barely afford into my hellacious
unpaid internship at the Harris County District Attorney’s Office.
You were a mid-50’s shade-tree M&M salesman on the street corner
outside the Harris County Criminal Courthouse.

But it was love.

Usually, I could hear you yelling as soon as I stepped onto the

sidewalk on Franklin.



I still don’t understand how you never seemed to get hoarse.

“ He was one who owned

no common soul.
• William Wordsworth • ”

The thing about the Harris County Criminal Courthouse is

that a lot of people going there are having one of the worst
days of their life. When I interned there, I often sat on the
benches in front of the building and talked to the people who
sat near me. One day, I shared a pack of Oreos with a woman
who told me she had been there all morning watching her
son’s felony drug trial. It was not going well, and she wept
softly as she talked about how her son would probably never
come home. You looked over and saw her there, slumped
over, her face in her hands.

Your constant stream of well-wishes echoed throughout

the streets, through crowds of people flocking to
their court dates or their offices. Even though you You shouted from a few yards away. She laughed.
stood with a cane, it didn’t seem to bother you to be She blushed. She sniffed and wiped her cheeks. She took a
on your feet all day. You boiled over with love and energy. ragged breath. It’s ok. It’s ok. Fear cannot live where love is.

As I got closer to you, you would spot me and point with an There is nothing more worthy in this world, dear friend, than
umbrella. to ease the suffering of our fellow human beings. Even if that
decrease in suffering is only as much as a bag of M&M’s

and a kind word might purchase. You did not care who it
was, what they had done, or even how many times they had
walked by you, dismissively, without acknowledging that
you were there. Your love was selfless and complete and
I always accepted. ferocious. You shouted your great love with your whole body
all day every day (or at least 9 am to 2 pm, Monday through

I’M THE HAPPIEST MAN IN Friday). I have never met another person so charismatic, or a

person who was so intensely good, in such a brief moment,

WORLD!” at making every single passing stranger feel that they were
really, truly special. You made me feel like someone saw me,
Oh, I admit. I wasn’t your only fiancée, not by a lot- but I singled out from the massive crowd.
liked to think that I was special. Once, you even offered to
ferry me to my car on your back. I wasn’t there when someone noticed that you had been
absent from your street corner. It wasn’t me who found
Being a lady of somewhat…generous proportion, I declined, out you had been diagnosed with Stage IV cancer. I didn’t
but I’ve always sort of regretted it.

Allison Jackson is an attorney who represents
indigent people accused of crimes in Fort
Bend County, Texas. She is also a book

snob, a wine equal-opportunist, a good cook
and a bad singer. She collects teapots, witty
intellectuals, and mugshots of famous people.


organize the incredible effort among the lawyers in our
courthouse community to help you, or the articles and news
stories making you, in those final days, a local celebrity. I
did not hold your shaking hands as you lay in your small
apartment, confessing your fears and faith to the people who
gathered in your bedroom, holding vigil and providing as
much comfort as they could to you, a man who had been so
generous with your joy for so many years. I cried when I read
the stories: that you were afraid of dying alone in your sleep.
That you had stopped eating. That you raised your frightened,
tear-stained face from the pillow when a reporter came to
your house and you rasped, “Don’t worry, be happy.”

Please, please forgive me for not doing enough. I was

undeserving of your love. We all were.

But oh, dear, sweet Rick, I hope you knew that the silence
outside the courthouse will echo for all of us in these coming
days. I hope you knew how grateful I was to have shared
a moment with your bright spirit, to have been in the same
space at the same time out of all of the spaces and all of the
times that have been and could be. I hope you knew that I am
richer for having known you, and that I will miss you. That
we will all miss you. That the neighborhood will never be
the same.

Before she was a lawyer, she was a cake

decorator, aspiring literary critic, and
superlative diner waitress. She has practiced
law in Texas and Micronesia. Her favorite
historical figure is Julius Caesar.


Over the past 10 years, many Houston

lawyers have become friends with people
who hang around outside the courthouse.
One beloved gentleman, Rick, recently fell
ill and died, and the legal community came
together to help Rick during his battle with
cancer. Rick always had a positive attitude

and was upbeat and would tell all the
accused citizens standing in line to get in the
building, "Don’t Worry-Be Happy," or "I Love
You" to all the women, lawyers, and citizens.
He was like a street preacher trying to spread
some cheer around a depressing building.
Saundra is a homeless person who stays

around the courthouse, and many lawyers
help her. There were some dirty politics in
several elections in Harris County, which
resulted in a new district attorney, sheriff, and
several judges. Saundra would hear all the
gossip, and when I would see her and spend
a few minutes talking with her, she would say
"God does not like it when people act ugly."
She was talking about what she was hearing
BY ROBERT PELTON from families and lawyers alike about other
lawyers who were hiding evidence, lying,
and slinging mud – in general, acting ugly.
Acting ugly was resulting in accusations that
lawyers were giving special deals to rich
people while the poor people were pleading
guilty just to get out of jail because they had
no money to get out on bond. Acting ugly
was hiding evidence from defense lawyers.
Local defense attorney Randy Schaffer and
a few other lawyers got new trials for people
who had been convicted. Some of these
cases showed that prosecutors lied and
withheld exculpatory evidence or evidence
that might have resulted in a not guilty
verdict. Lawyers are bound by their oath
and the rules of ethics by the State Bar. The
Ethics Hotline has received many calls from
lawyers and citizens about the conduct of
prosecutors and of their own lawyers.


When one lawyer sees another lawyer acting ugly, 2. It should be noted that this Rule describes only
there are State Bar rules that advise us on what to do: those disciplinary violations that must be revealed
by the disclosing lawyer in order to avoid violating
these rules himself. It is not intended to, nor does it,
limit those actual or suspected violations that a lawyer
Rule 8.03, 8.04 and Rule 1.05 f. may report. However, if a lawyer were obliged to report
every violation of these rules, the failure to report any
violation would itself be a professional offense. Such a
requirement existed in many jurisdictions but proved
Rule 8.03 Reporting Professional Misconduct to be unenforceable. This Rule limits the reporting
(a) A lawyer having knowledge that another lawyer has obligation to those offenses that a self-regulating
committed a violation of applicable rules of professional profession must vigorously endeavor to prevent. A
conduct that raises a substantial question as to that measure of judgment is, therefore, required in complying
lawyer's honesty, trustworthiness or fitness as a lawyer in with the provisions of this Rule. The term "substantial "
other respects, shall inform the appropriate disciplinary refers to the seriousness of the possible offense and not
authority. the quantum of evidence of which the lawyer is aware.
The term "fitness " has the meanings ascribed to it in the
(b) A lawyer having knowledge that a judge has committed Terminology provisions of these Rules.
a violation of applicable rules of judicial conduct that
raises a substantial question as to the judge's fitness for 3. A report of professional misconduct by a lawyer
office shall inform the appropriate authority. should be made and processed in accordance with
Article X of the State Bar Rules. A lawyer need not report
(c) This rule does not require disclosure of knowledge or misconduct where the report would involve a violation
information otherwise protected by Rule 1.05. of Rule 1.05. However, a lawyer should encourage a
(d) This rule does not require disclosure of client to consent to disclosure where prosecution of the
knowledge or information otherwise protected as violation would not substantially prejudice the client's
confidential information: interests. Likewise, the duty to report professional
misconduct does not apply to a lawyer retained to
1. by Rule 1.05 or represent a lawyer whose professional conduct is in
2. by any statutory or regulatory provisions question. Such a situation is governed by the rules
applicable to the counseling activities of applicable to the client-lawyer relationship.
the approved peer assistance program. Rule 8.04 Misconduct
Comment - Rule 8.03 (a) A lawyer shall not:
1. Self-regulation of the legal profession requires 1. violate these rules, knowingly assist or induce
that members of the profession initiate disciplinary another to do so, or do so through the acts of
investigations when they have knowledge not another, whether or not such violation occurred
protected by Rule 1.05 that a violation of these rules in the course of a client-lawyer relationship;
has occurred. Lawyers have a similar obligation with
respect to judicial misconduct. Frequently, the existence 2. commit a serious crime, or commit any
of a violation cannot be established with certainty other criminal act that reflects adversely on the
until a disciplinary investigation has been undertaken. lawyers honesty, trustworthiness or fitness as a
Similarly, an apparently isolated violation may indicate a lawyer in other respects
pattern of misconduct that only a disciplinary investigation 3. engage in conduct involving dishonesty,
can uncover. Consequently, a lawyer should not fail to fraud, deceit or misrepresentation;
report an apparent disciplinary violation merely because
he cannot determine its existence or scope with absolute 4. engage in conduct constituting obstruction
certainty. Reporting a violation is especially important of justice;
where the victim is unlikely to discover the offense. 5. state or imply an ability to influence improperly
a government agency or official;

6. knowingly assist a judge or judicial officer in false, deceptive, or misleading, makes unsubstantiated
conduct that is a violation of applicable rules of comparisons to another lawyer's services, or proposes
judicial conduct or other law; means contrary to rules of professional conduct, the
attorney can be charged with misconduct. For example,
7. violate any disciplinary or disability order
an attorney was disbarred in Maryland for publishing
or judgment;
misleading advertisements soliciting customers for
8. engage in conduct that constitutes barratry "quickie" foreign divorces and misrepresenting his
as defined by the law of this state; competence and knowledge of the law (Attorney
9. fail to comply with Article X, section 32 of the Grievance Committee v. McCloskey, 306 Md. 677, 511
State Bar Rules; A.2d 56 [198]

10. engage in the practice of law when Jim Skelton has read the rules and offered the following
the lawyer's right to practice has been suspended as an aid in understanding the rules:
or terminated; I read Rules 1.05, 8.03, and 8.04 and think that Rule 8.03 is
11. violate any other laws of this state relating to pretty clear – a lawyer has the obligation to report another
the professional conduct of lawyers and to the lawyer to the State Bar who commits a 8.04 violation that
practice of law. raises a substantial question as to that lawyer's honesty,
trustworthiness or fitness as a lawyer. There are two
(b) As used in subsection (a)(2) of this Rule, "serious exceptions: (1) if the lawyer had an addiction problem,
crime" means any felony involving moral turpitude, the reporting lawyer has the option of reporting this to
any misdemeanor involving theft, embezzlement, or an approved peer assistance program as opposed to
fraudulent misappropriation of money or other property, reporting it to the State Bar; and (2) if the lawyer learns
or any attempt, conspiracy, or solicitation of another to the information from an attorney client agreement so long
commit any of the foregoing. as the information does not involve an ongoing crime or
a future crime.
The hook in the rule is determining what is a “substantial
question.” My guess is that there is no specific standard;
Joseph Connors, Ethics Committee member, has helped that it is resolved on a case-by-case basis. The best rule
me write and research for this article as has Michael of thumb is the advice Saundra has been giving out all
Mowla. This is an example of what has happened in along: don’t act ugly, and if you see someone else acting
other places: ugly, think about your obligation to report it.
Beginning in the late 1980s, attorneys have been
required to report the misconduct of other lawyers that
he becomes aware of. Failure to do so is considered Special thanks to:
to be misconduct in itself and can result in serious Joseph Connors
disciplinary measures. A 1989 Illinois Supreme Court Michael Mowla
ruling, In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790, Chuck Lanehart
found that attorneys have a duty to report other lawyers'
Jim Skelton
misconduct even when a client has instructed them not
to do so.
The Illinois Supreme Court suspended James H.
Himmel from the practice of law for one year after he
failed to report a misappropriation of client funds by

another lawyer, a violation of rule 1-103(a) of the Illinois

Code of Professional Responsibility. Himmel's failure
to report, the court found, had allowed the offending
attorney to bilk other clients as well. The attorney guilty
of misappropriating funds was disbarred.
Lawyers have also been found guilty of misconduct for
falsely advertising their services. It is legal and ethical
for attorneys to advertise, but if that advertising is

A New Model


of Jury Trial
by Mark W. Bennett

WHAT IF everything you thought you knew about how These are models. The test of a model is its usefulness.
juries decided cases were wrong? What if everything you The Bayesian Model of juror decision making is
had been taught to do to win a jury trial were founded in more useful than the Classical Model because it more
a false premise, a flawed notion of how people — and accurately predicts the behavior we see jurors engage in.
juries as groups of people — made decisions?
I offer four facts in support.
What if jurors routinely — as a matter of course, in
virtually every case — disregarded their jury instructions
without even realizing they were doing so? What if these CONSCIOUSNESS LAGS DECISION MAKING
instructions were so contrary to human nature that they
were practically impossible for jurors to follow? First, brain scientists have found that our brains make
decisions some time before we are conscious of having
If all of that were true, you would want to take it into made them. In one experiment, by looking at an fMRI
account in how you tried cases, wouldn’t you? image, researchers found that they could determine
You would want to change your approach to account whether a subject was going to push a button with his left
for how jurors actually make decisions rather than your hand or right hand seven seconds before the subject was
flawed notion of how they do so. aware of making the decision.

We instruct jurors to listen to the evidence and consider If the consciousness of the decision to push one button
all of it before reaching a decision. This is a feat so or the other can lag seven seconds behind the decision,
contrary to human nature that the juror able to follow it how far behind the decision to acquit or convict your
would be a rare exception. client might a juror’s consciousness of that decision lag?
Might a juror’s unconscious mind decide early in trial to
The Classical Model of juror decision making — a acquit your client, and only make that decision known to
rational decision taking into account all of the evidence the juror’s conscious mind after the conscious mind has
— does not accurately reflect what happens in the dutifully sat through the trial?
courtroom. An alternative model — I call it the Bayesian
Model — is one in which, instead of listening to all of the This neuroscience research supports the Bayesian Model
testimony before making a decision, each juror reaches rather than the Classical Model — if people made
a decision early in the trial and then filters all of the decisions rationally, they would be conscious of the
evidence through this decision. decision as it was reached.

A New Model of Jury Trial



Second, cognitive scientists have identified a laundry Fourth and finally, we have all had the experience of
list of cognitive biases, systematic departures from talking to a jury after a verdict and hearing a vague
rationality in judgment. These cognitive biases are handwavy explanation of the verdict: “You did a great
universal and generally adaptive. You may have heard job, but there was just too much evidence,” or (to the
of confirmation bias, in which a person reaches a belief State) “You did a great job, but there just wasn’t enough
and then interprets the available information to confirm evidence.”
that belief. You probably haven’t heard of belief bias, in
which a person’s evaluation of the logical strength of an This behavior from jurors suggests that the basis for their
argument depends on their belief in the validity of the decision is not clear in their consciousness. The Classical
Model of juror decision making would have the proof

on which jurors made their decisions prominent in their
If jurors are humans who exhibit confirmation bias, minds; the Bayesian Model explains why these jurors
then they might filter the evidence that they hear at trial might falter when asked what, specifically their decision
through that bias, discounting proof that does not support was based upon.
their already-reached conclusions and highlighting proof
that does support it.
If jurors are humans who exhibit belief bias, then HOW EARLY?
they might pass your argument (and even the court’s If jurors’ (and by extension juries’) decision making
instructions) through that filter, finding arguments less follows the Bayesian Model rather than the Classical
persuasive because they have already rejected them. Model, it raises many questions. Among them:
These, and many other cognitive biases (familiarize Why do you call it the Bayesian Model?
yourself with Wikipedia’s lengthy list, https:// are not At what point do jurors reach their belief in whether the
accounted for by the Classical Model, but make perfect State is able to prove its case against the defendant?
sense under the Bayesian Model. What happens throughout the rest of the trial?
What happens in jury deliberations? Why do they take so
WEIRD VERDICTS long, and why do jurors sometimes change their minds?
Third, we have all seen verdicts on evidence that seems How does the trial lawyer take advantage of this
to us clearly factually insufficient. This can, of course, knowledge to get better verdicts for her clients?
be accounted for by our own cognitive biases (we should
account for the bias blind spot, the tendency to see
ourselves as less biased than others), but perhaps our I plan to address these questions, and more, in future
training and experience allow us to be more objective installments of this series. If you have any additional
about the proof against our clients. In most cases we can questions or comments, drop me an email.
see how the trial could have gone either way, and those
cases in which we simply cannot comprehend the jury’s
verdict are a small minority of all the cases we try.
Irrational verdicts are, by definition, not explained by the
Classical Model. They are, however, explained by the
Bayesian Model of juror decision making.
mark bennett
Mark Bennett is an improviser, writer, and
hypnotist who dabbles in lawyering, with a
focus on criminal law (he’s Board Certified
in that), appeals, and free speech.

Go from


Dud to Stud:
Strategies for Using Multimedia with Juries
by Kate Shipman Bihm

Using technology in the I am going to let you in on a and prepared communicator.

courtroom has become little secret – it is not rocket Everyone wants to root for the
commonplace. For years, we’ve science, and it does not take as winning team, and voir dire
been using video screens and much time as you would think is an excellent place for the
projectors to increase how to learn it. Once you become jury to catch a glimpse of your
effectively juries perceive the even slightly more proficient preparation and show them
evidence. Over the last five than you are now, you will feel that you are going to impress
years, using PowerPoint or empowered to learn more them at every stage of the trial.
other similar software for jury and use more technology in
The purpose of this article is to
presentations has become your presentations to juries,
act as a primer of sorts for those
de rigueur for some and a from voir dire to closing
of you who are not currently
source of fear for others. argument. Using technology in
using multimedia in your jury
Whichever category applies your jury presentations is an
presentations, and also a
to you, the challenge, of effective way to telegraph your
re-education for those of you
course, is using technology competence and preparation to
who are. If you are feeling adrift
effectively. We have all seen the person who needs to believe
in a sea of animations and
multimedia presentations that in you more than you need to
options, unsure of how effective
were lackluster at best, or at believe in yourself – your client.
you are in your multimedia use,
worst so ineffective that they Court appointed or retained,
it is wonderful that you doggedly
distracted from the speaker’s your client will be comforted
press forward, knowing that it is
message, however important by knowing that your trial
expected by juries. Hopefully,
that message may be. Also, preparation, trial strategy, and
some of what you read here
many in our profession consider trial skills are more than packing
will bring you not only clarity,
themselves to be much too old up your file, codebooks, and
but new ideas that will help you
of a dog to learn a new trick, legal pads, and hoping for the
hone your skills and message.
much less one that requires best. Moreover, if you effectively
learning an entirely new skill use multimedia in voir dire and To begin, let’s start with some
set, like crafting an effective closing, jurors will develop an basic do’s and don’ts.
multimedia presentation. impression of you as a savvy

Do bring your
own equipment.
Do choose your font,
font size, font color, and
Do use multimedia
to enhance your
Verify that the computer used animations carefully presentation rather than
for the presentation has the and BE CONSISTENT. be your presentation.
correct version of whatever My personal preference is white If you find yourself shrinking
software it is on which you have Century Gothic font on a black your font to fit the information
created your presentation or background, and never smaller onto one slide, you should stop
bring your own device. Bring your than 26-point font. Depending and ask yourself whether you
own computer too. It is easier to on the screen size and distance, are writing a script or using the
make changes or adjustments if it is important to ensure that the slide to emphasize a particular
you have your own device ready font is legible from the distance point or piece of evidence. Do
when you need it. the jury will be reading it. Your you want the jury reading the
Do figure out what you’re font and animations should be slide or listening to what you

consistent from slide to slide. have to say? You want them

working with. hanging on every word, not
Know the technology available struggling to read a list.
to you and the setup of the
room before you arrive to set Do be prepared.
up on the day of trial. What It is impossible to make an
connections are required? effective multimedia presentation
Does your computer have in thirty minutes before closing
the correct type of port for argument or the morning
the adapter the Court has on of voir dire. Effectively using
hand? Does the Court have an multimedia requires practice,
adapter at all? What size is the time, and effort. Have a trusted
screen on which the jury will colleague or employee run
see the presentation? Even if through the slides, checking
you design the most effective them for errors, typos, and
presentation in the world, if difficult to read or understand
the jury can’t see it without language. Check and re-check
binoculars, what difference your animations at least
does it make? three times to avoid any nasty


Don’t use multimedia if
you’re not ready.
Don’t recycle Don’t get so wrapped up
presentations from other in your presentation that
cases. you forget the realities of
f you do not feel competent with
the technology or are not willing The wrong name or fact
to take the time that it takes to sneaking its way past you will If the Court gives you 20
become comfortable with it, only serve to confuse the jury minutes to close, your 80-slide
do not use it. Despite what you and frustrate your client. Also, presentation is going to need
read earlier, being a multimedia if your presentation is the same some adjustments, and fast.
whiz is not the only road to during every trial, it will become If the Court sustains an objection
success in the courtroom. like a transcript from an expert to one of your slides, you must
Many have succumbed to the witness. When your opponent be prepared to move on with
siren’s song only to stumble knows what you are going to aplomb.
through awkward and stilted say before you say it, you lose
lists and spend half of their one of your most valuable tools
Don’t forget to bring
allotted time for closing trying at trial: the element of surprise.
a paper copy of your
to work through it. Play to your
presentation, along with
strengths. Earlier, we addressed
Don’t get carried away. copies of any documents
how impactful an effective
or photos that you
Animations are like trick plays.
presentation can be for client
have included in your
Using them too often or failing to
confidence and connecting with
execute them perfectly makes
a jury. A bad presentation will them ineffective. If all technology fails ten minutes
have the opposite effect and is before you begin, you will need
Juries do not want gimmicks;
not worth it. to be prepared to do it the old
they want professionalism.
fashioned way.
If your presentation resemblesa
discount furniture advertisement,
you should probably scale it
back a bit.
There is more to using multimedia with juries than simply preparing

a legible presentation that communicates the basic points of your

case. The most effective presentations use simple techniques to
captivate your jurors’ attention.
Static Photos and Text Effects learning
Simple text on a template can become repetitive and boring.
Creating a sign post or adding interest with a photo can be a curve
visual break that captures (or re-captures) the jurors’ interest
in the middle of an otherwise monotonous presentation. Photo
might be
licensing companies like or are
excellent resources for thousands of images that might better
represent your point than simple text. Adding text effects on top
of the image creates emphasis and interest. Follow the steps
below to go from dud to stud. Contrast these two slides: however,
Dud… [it is] a
hill worth

Cropping Photos and Using Shapes and Animations to


Draw Attention to Parts of Photos and Documents
Particularly during closing argument, it is helpful Using free software such as irfanview, you can
to direct the jurors’ attention to a particular scan and crop photos and documents and
portion of a photo or document. Imagine the add them to slides in order to direct the juror’s
time and momentum lost when counsel fumbles attention to a particular part. Add shapes and
through pieces of paper or tries to find the right animations to the slide in order to demonstrate
spot on the document. What a dud. that the emphasized piece originates from the
original exhibit. You no longer have to hold up a
document or worry about focusing the projector.
You can include the piece of evidence in the
presentation itself.

Emphasizing Part of a Photograph Emphasizing Part of a Document

Adding Still Images from Videos for Emphasis

How many times have you felt like a total dud as your presentation, making you look like an audio-
you tried to forward a video to a specific moment, visual stud. After taking the screenshot, you can
and pause it so that could point the juror’s crop the photo or add shapes and animations to
towards something that might not be readily add interest. Suddenly, grainy security footage
visible while the video was in motion? Using free can be blown up and traffic stop videos become
software, such as VLC Media Player, you can clear as day.
take screenshots from a video and add them to
Using simple techniques like these take time

and effort, and if you are completely unfamiliar

with the software, the learning curve might be
rather steep. It is, however, a hill worth climbing.
Jurors have much more than evidence on their
minds and engaging them visually is an effective
way to not only hold their attention, but to focus
their attention on your case rather thank the
opponent’s. In the criminal defense world, we
are almost always at a distinct disadvantage.
The State is better funded, it often feels like the
Court is on their side, and they certainly have
a larger staff. An effective, professional, and
innovative multimedia presentation helps to
alleviate some of those advantages. If used
correctly, multimedia presentations can create
the illusion of a well-funded, better-prepared
defense. If you have read this article and are
completely at a loss about how to get started,
do not be intimidated. Youtube and other
websites have free online tutorials, and Google
is your friend. You CAN do this, and you should.
Your client will certainly thank you for your
efforts and your jurors will too.


Kate Shipman Bihm has been practicing
criminal defense since 2007 when she left
the Montgomery County District Attorney’s
Office to hang out a shingle in Conroe,
Texas. Since then, The Bihm Firm, PLLC
has grown to include family law clients.
Her recent run for the 9th District Court
would have been impossible without
the support and encouragement of her
colleagues in the defense bar. Her office
mascots, Carmelo (a Chihuahua) and
Lucy (a Schnauzer) love visitors and are
available for cuddles between dockets.


THE DEFENSE by Nicolas Hughes i

I. What is a cell-site simulator and how is it used? Rigmaiden obtained his first lead after seeing an FBI document
mentioning a “Wireless Intercept and Tracking Team” within the
Daniel Rigmaiden and the discovery of the Stingray ii,iii,iv FBI’s Digital Collection System Network, a unit responsible for
While in hiding, Daniel Rigmaiden directed a scheme to obtain targeting cell phones. Rigmaiden connected what he found in
fraudulent tax returns from deceased individuals from his the FBI document to records from a Florida police department
laptop. Rigmaiden took extreme measures to conceal himself seeking permission to buy surveillance equipment. Rigmaiden
– he created fake identities, anonymized his web browsing, could now place a name to the boogeyman of his conspiracy
communicated by encrypted email, and generally lived off theory – a device called a cell-site simulator branded “Stingray”
the grid. In 2008, despite all these measures, Rigmaiden was and manufactured by the Harris Corporation. After numerous
caught by a federal task force. Rigmaiden became obsessed with and repeated requests for disclosure, the government finally
figuring out how the government found him. conceded that a Stingray had been used in Rigmaiden’s case.
The government’s secret weapon was no longer secret.
Outside of cautious forays into town to collect the proceeds of his
conspiracy, Rigmaiden had a single obvious link to the outside How does a Cell-Site Simulator work?v,vi,vii,viii,ix,x
world: the Aircard on his laptop. Convinced that the Aircard was
his vulnerability, Rigmaiden believed the government used some Cell-site simulators come in many forms and varieties and are
sort of secret technology to locate him using the Aircard. None known by many names (see Glossary for some of the names
of Rigmaiden’s lawyers were willing to entertain Rigmaiden’s of and terms used for cell-site simulators), but they are most
conspiracy theory that the government was beaming rays into frequently called Stingrays or IMSI catchers. Essentially, a
Rigmaiden’s home in order to track the Aircard. Frustrated with cell-site simulator masquerades as a cell tower (see Glossary
his lawyers, Rigmaiden proceeded pro se. Assisted by a court- for some of the terms for cell towers). However, the purposes
appointed paralegal, Rigmaiden directed a deep and painstaking of a cell tower and cell-site simulator are wildly different – a
Google-search-by-postal-mail for anything that would justify cell tower facilitates wireless communication while a cell-site
his theory. simulator is typically used to track cell phones or to covertly
obtain information from cell phones.
When a cell phone is powered on, the cell phone will typically
attempt to maintain periodic communication with its wireless
carrier’s network. A cell phone will broadcast information,
whether or not the cell phone is currently in use or not, and a
cell phone will generally attempt to connect a cell tower in its
wireless network that is broadcasting the strongest signal.
A cell-site simulator broadcasts a strong signal
that mimics a particular type of cell tower.
Any cell phones within the cell-site
simulator’s range and configured to connect to the simulated have hidden evidence of the use of cell-site simulators from the

wireless carrier’s towers will “see” the cell-site simulator’s defense and will deny the use of cell-site simulators even when
strong signal and will connect to the cell-site simulator. Cell directly asked questions about the use of the devices in a case.
phone data is generally encrypted, but cell-site simulators
Even when directly confronted with a court order compelling the
exploit a weakness in the encryption scheme. While older cell
government to reveal the use of cell-site simulator technology,
phone communication technologies (i.e., 2G) may encrypt the
the government will continue attempts to conceal its technology.
data sent from and to a cell phone, the information the cell
Law enforcement agencies and prosecutors faced with the
phone uses to identify itself to the cell tower is not encrypted
possibility that the court will order the prosecutor to disclose
and can be intercepted by a cell-site simulator. Modern cell
the use of cell-site technology in a case must inform the Harris
phone communication technologies (i.e., 3G, 4G) employ
Corporation and/or FBI, so that they may intervene in the
mutual authentication protocols that require the cell phone tower
proceeding. Some of the non-disclosure agreements revealed
to identify itself to the cell phone before the cell phone will
to the reporters even grant the FBI the authority to direct the
connect to it. However, the cell-site simulator can trick a modern
prosecutor to dismiss a case rather than risk disclosure.
cell phone into downgrading into 2G mode, where the cell-
site simulator can easily obtain the cell phone’s identification The government may even hide the use of a cell-site simulator
information. In addition, cell-site simulators are able to decrypt from the prosecutors in the casexvi
a cell phone’s communications.
There is a significant chance that the prosecutor in your case is
A cell-site simulator can collect several types of information unaware that a cell-site simulator was used in your case. Agents are
from the cell phones connecting with the cell-site simulator. instructed to develop independent “corroborating techniques” so
At a minimum, a cell-site simulator will collection the cell that the agents can disclose only the “corroborating” information
phone’s identification information, including the cell phone’s and keep cell-site simulator information confidential. Warrants
identification number (see Glossary for some of the terms used to and court orders authorizing the use of cell-site simulators will be
describe a phone’s identification number) – a number that serves sealed. It is unlikely that the line prosecutor ultimately handling
as a unique “address” for the cell phone – and the cell phone’s the case will be aware of the use of a cell-site simulator in the
general location. If the government knows the target phone’s case. When explicitly requested to deliver Brady information to
identification number, it can screen for that identification number the defense, there are likely to be breakdowns in communication
and determine the location of that specific phone. Similarly, if between the prosecutor and the investigating officers. A defense
the government knows the target phone’s general location, it lawyer needs to be prepared to help everyone involved in the
can use location data to determine the identification number judicial process understand what a cell-site simulator is, why
associated with the phone. Cell-site simulators often employ it is important to the case at hand, and why its use must be
technology that boosts law enforcement’s ability to pinpoint a disclosed under Brady obligations.
cell phone’s location. In addition, documents obtained by the
American Civil Liberties Union (“ACLU”) have revealed that How do I find out if a cell-site simulator is
certain cell-site simulators can be configured to snoop on a cell used in my case?xvii,sviii
phone’s communications – including phone calls and texts. It has
also been revealed that some cell-site simulators can be used to We know that law enforcement agencies in Houston, including
jam cellular communications, make silent calls to target phones, the Houston Police Department and federal law enforcement
and spoof calls and messages on behalf of a target cell phone. It agencies, have cell-site simulators. As the use of cell-site
is widely believed – and likely, given cell-site simulator’s other simulators is almost invariably hidden in criminal cases,
abilities – that cell-site simulators can directly monitor a cell determining that a cell-site simulator was used in a case is
phone’s internet communications. largely educated guesswork. In some cases, the use of cell-site
simulators may be disguised by warrants, court orders, and
II. Why should I be concerned if a incident reports referring to “mobile tracking devices,” “pen
registers,” “confidential informants,” or “anonymous tipsters.”
Cell-Site Simulator is used in my case? In other cases, the offense report may simply omit relevant

The government hides its use of cell-site simulatorsxi,xii,xiii,xiv,xv details and seem perfunctory or cryptic. As in all other cases, a
defense lawyer cannot not take the offense report, court orders,
The greatest challenge in cell-site simulator cases is that law
or warrant request at face value. If law enforcement’s fortuitous
enforcement agencies will actively conceal the use of cell-site
discovery of your client seems too good to be true, it warrants
simulators. The Harris Corporation requires agencies to sign
investigations. Some potential red flags have been gleaned from
broad non-disclosure agreements regarding cell-site simulators.
the ACLU, the Electronic Freedom Foundation (“EFF”), and
The non-disclosure agreements direct law enforcement agencies
lawyers who have litigated cell-site simulator cases.
and prosecutors to conceal any information about the use of
cell-site simulators during discovery and during trial. These
non-disclosure agreements will frequently put law enforcement
agencies and prosecutors in a position where they must conceal
the use of cell-site simulators in offense reports or even make
misrepresentations to the trial court – for example, when
attempting to obtain a warrant to use the cell-site simulator. Case
law indicates that law enforcement agencies and prosecutors
WHERE CELL-SITE SIMULATOR Handling a cell-site simulator casexix,xx,xxi


USE IS MOST COMMON Preliminary steps: planning for battle
The first thing that every lawyer who suspects that a cell-site
simulator is used in a case should do is review the ACLU’s
1 Your client is a fugitive and/or there was handbook on cell-site simulators, Stingrays: The Most Common
an active arrest warrant for your client. Surveillance Tool the Government Won’t Tell You About. This
The involvement of a inter-agency taskforce document reflects the great deal of knowledge the ACLU and
2 EFF have gathered through litigating public records cases in
(particularly, the Gulf Coast Violent Offenders
Task Force) state and federal courts. You should also reach out to the EFF, as
that organization may be able to assist you with your case.
The second thing every lawyer should do is print out copies of
the Maryland case State v. Andrews and the New York federal
OTHER RED FLAGS case U.S. v. Lambis. It is not enough that you understand how
cell-site emulators work; you need a mechanism to explain your
theory involving cell-site simulators to the court. Both cases will
explain to the court how cell-site simulators work and how the
3 Major, unexplained gaps in the offense report. use of cell-site simulators is often disguised or hidden. The cases
4 Conclusory statements that law enforcement also address several Fourth Amendment concerns relevant to the
obtained your client’s identity/whereabouts from cases and are credible sources to the trial court.
a confidential informant. Investigation: Talk to the officers present at the scene
5 A cell phone or phone number is used to tie your Determine who participated in your client’s arrest – chances are
client to the crime or to locate your client. there are some important names left off of the offense report.
Attempt to talk to all the law enforcement officers involved in
6 The government obtains the specific location
the arrest. Many of the cases involving cell-site simulators were
of your client quickly without asking the kinds of
exposed because an honest officer refused to lie or because an
people who would know your client’s whereabouts
officer slipped up.
(friends, family, etc.).
The case involves a large protest. Discovery:
7 Request Brady materials and force discovery hearings
8 The case involves surveillance. File Brady requests asking for exculpatory, impeachment,
The client is adamant that there are no and mitigation evidence in the form of undisclosed electronic
9 surveillance. Chances are that the use of electronic surveillance
confidential informants or tipsters who would
know the client’s location. contradicts the offense report and is impeachment evidence. Make
sure to get all your requests – and the government’s response to
10 The case involves a track-and-trace or pen the requests – on the record. State court practitioners can use the
register warrant. Michael Morton Act to obtain offense reports not included in the
prosecutor’s file (incredibly important in interagency cases), can

make requests for disclosure of the use of electronic surveillance

in the case, and can hold motions to compel the disclosure of
confidential informants – all tools to make the prosecutor lay
his or her cards on the table. The drawback is that there may be
limitations to what a state prosecutor may disclose – particularly
if the federal agencies are playing hardball. You may have to sue
in federal court in order to obtain the information you need for
your case. Either way, you should make a record of what you are
trying to obtain and why you need it in the State court.
Getting help: Obtain expert assistance
Properly addressing the use of a cell-site simulator in your case
may require expert assistance. An expert can explain aspects
of a cell-site simulator which are relevant to a client’s Fourth
Amendment claims, including how cell-site simulator actively
(rather than passively) forces cell phones to communicate with
it, how the cell-site simulator penetrates walls, how the cell-site
simulator connects to multiple phones at once, how the cell-site
simulator can decrypt cell communication, and how the cell-site
simulator has other abilities beyond simply monitoring a phone.
If the client is indigent, file an ex parte Ake request explaining
the relevance of the expert to the case. Ake v. Oklahoma, 470
U.S. 68, 83 (1985).
Litigate: Object to evidence derived from the use of cell-site
simulators in your case.
Scenario 1:
Law enforcement does not have
a warrant or court order.
The use of a cell-site simulator has a strong analogy in Kyllo, the
federal case where the Supreme Court held that the warrantless
use of a thermal imaging device to look through a house’s walls
was unreasonable under the Fourth Amendment. Kyllo v. United Scenario 2:
States, 533 U.S. 27, 40 (2001) (“We have said that the Fourth
Amendment draws a firm line at the entrance to the house.”).
Law enforcement has a warrant or court order,
A cell-site simulator penetrates the walls of a person’s home but misled the court in order to obtain the
and forces a cell phone within the home to connect to the cell- warrant or court order.
site simulator. Any intrusion into a person’s house to collect Anytime law enforcement obtains a warrant through use of
evidence, including by means of a cell-site simulator, is likely to misrepresentations or through deception, the defense is entitled
violate the Fourth Amendment. to request a Franks hearing. Franks v. Delaware, 438 U.S.
If this is a Texas case, the Code of Criminal Procedure 154, 155–56 (1978). It is unlikely that the law enforcement
protects against the unauthorized interception of wireless officers have been completely honest about the devices they
plan to use to conduct surveillance and what capabilities those

communications; the unauthorized installation of pen registers,

trap and trace devices, mobile tracking devices, or ESN readers devices have when applying for a court order or warrant. An
(see Glossary for definitions of pen register, trap and trace expert may be incredibly helpful to point out the omissions and
devices, mobile tracking devices, and ESN readers). The misrepresentation used to obtain the court order or warrant.
Code of Criminal Procedure also protects from violations of Scenario 2:
constitutional and statutory law. TEX. CODE CRIM. PROC.,
arts 18.20 § 2, 18.20 § 14, 18.21 § 3, 38.23. Improper use of a Law enforcement has the wrong type of warrant
cell-site simulator can lead to civil liability, criminal contempt, or court order
or even criminal charges. TEX. CODE CRIM. PROC., arts A cell-site simulator is not a pen register or a trap and trace
18.20, 18.21; TEX. PENAL CODE § 16.02. It is unlikely that register because it is primarily designed to track a cell phone’s
the use of a cell-site simulator would be upheld without any location, not dialed or received calls. 18 U.S. CODE § 3127;
form of court authorization. TEX. CODE CRIM. PROC., art. 18.21 § 1(5, 10); In re the
Application of the U.S. for an Order Authorizing the Installation
& Use of a Pen Register & Trap & Trace Device, 890 F.
Supp. 2d 747, 752 (S.D. Tex. 2012). The cases validating cell-
site simulator use have mainly involved cases where a court
authorized law enforcement to install a mobile tracking device,
but if the cell-site simulator has features that are not comparable
to a “bumper beeper” – like jamming, decryption, or the ability
to spoof messages - it may not fit the definition of a mobile Related to the requirement of particularity and the prohibition


tracking device. If law enforcement applied for the wrong kind of general warrants is the unconstitutional overbreadth of a
of warrant, the use of a cell-site simulator exceeds the scope of warrant. See Maryland v. Garrison, 480 U.S. 79, 85–86 (1987).
the warrant and should be excluded. The government has a reasonable duty to “ascertain and identify
the place intended to be search,” but it may be impossible for
Texas’s law governing “ESN readers” may exclude cell-site
the government to constrain its cell-site simulator search to a
simulators. Article 18.21 defines “ESN readers” as “a device
specific phone. See Id. at 87-88. Without affording explicit
that records the electronic serial number from the data track of a
protections to innocent third parties, a warrant fails to adequately
wireless telephone, cellular telephone, or similar communication
limit the scope of a search performed using a cell-site simulator.
device that transmits its operational status to a base site, if the
See In the Matter of the Application of the of Am. for an Order
device does not intercept the contents of a communication.” TEX.
Relating to Telephones Used by Suppressed, 15 M 0021, 2015
CODE CRIM. PROC., art. 18.21 §§ 1(4), 2. There is certainly
WL 6871289, at *3–4 (N.D. Ill. Nov. 9, 2015).
evidence – for example, Stingray’s GSM intercept capability
or Hailstorm’s 4G probable decryption ability – that cell-site III. Final commentsxxii
simulators actually intercept the contents of a communication
rather than simply “record[] the electronic serial number from A lawyer who realizes that a cell-site simulator was used in
the data track of a […] cellular telephone.” It is unlikely that a client’s case is at an enormous tactical advantage over the
law enforcement will disclose the actual capabilities of the cell- government. As the government is often bound to conceal the
site simulator devices or logs of what information was received use of cell-site simulators, the government may be forced to
and retained by the device. Therefore, it is unlikely that law dismiss or offer your client a “fire-sale” plea rather than disclose
enforcement will have any ability to rebut a defense expert who information about the use of a cell-site simulator in a case. Even
testified to the “interception” abilities of cell-site simulators. where this is not the case, the effort to conceal the cell-site
simulator becomes a topic for impeachment, a suppression issue,
If the government relies on a facially valid court order and not and a fertile ground for building a meaningful appellate record.
a formal warrant, the use of the cell-site simulator may still be Cell-site simulator issues have not been litigated in state court
vulnerable to attack. A cell-site simulator conducts a search and expose a prosecution to significant risk. Uncovering the use
when it communicates with a cell phone inside a home. See of a cell-site simulator turns the tables on the government and
Kyllo v. United States, 533 U.S. 27, 40 (2001). A search of a can put the government in a defensive posture for the remainder
home is presumptively unreasonable without a warrant, and a of a case.
statutory court order is insufficient to authorize a search. See
State v. Jackson, 464 S.W.3d 724, 730 (Tex. Crim. App. 2015).
Using the argument that the cell-site simulator intrudes into a
person’s home and forcibly extracts information from the home,
the defense may be able to prevail on the argument that a court GLOSSARY OF TERMS YOU MAY ENCOUNTER
order is insufficient to authorize the use of a cell-site simulator IN CELL-SITE SIMULATOR CASES
in a case. The terminology used in the cellular industry can be confusing
Scenario 4: – often because different terminology can be used to refer to
the same equipment. This guide seeks to use the most common
Law enforcement has an accurate warrant or terminology.
court order.
A cell-site simulator, often called a Stingray or IMSI
Cell-site simulators indiscriminately gather information from a 1
target phone as well as information from innocent third parties. catcher may also be called Hailstorm, Triggerfish,
See In the Matter of the Application of the of Am. for an Order RayFish, KingFish, LoggerHead, DRTbox, dirtbox,
Relating to Telephones Used by Suppressed, 15 M 0021, 2015 swamp box, digital analyzer, cell-site emulator,
WL 6871289, at *3–4 (N.D. Ill. Nov. 9, 2015). This leaves cell-site locator, ESN reader, or many other names.
cell-site simulators authorized under otherwise valid warrants A cell-site simulator is a device that masquerades
vulnerable to legal challenges. as a cell tower, forces cell phones to connect to the
A warrant lacks particularity as required by the Fourth device, and obtains information from the phones that
Amendment if it fails to adequately describe what evidence connect to the device. A cell-site simulator performs
law enforcement is authorized to seize and who/where law a “man-in-the-middle” attack by intercepting
enforcement is authorized to seize it from. See Berger v. State of transmissions meant for a wireless carrier.
N.Y., 388 U.S. 41, 58–59 (1967). A cell-site simulator effectively
performs a search on any cell phone in its range, obtaining
information from cell phones not connected with criminal 2 A cell tower, also known as a cell site, base station,
activity. A warrant authorizing the use of a cell-site simulator base transceiver station, mobile phone mast,
fails to adequately limit what information law enforcement may or base station is a collection of antennae and
seize. communication equipment. The purpose of the cell
The Fourth Amendment forbids general warrants – warrants tower is to transmit and receive information from an
that permit law enforcement to conduct roving searches over an individual cell phone and to relay information to and
area. See Stanford v. State of Tex., 379 U.S. 476, 481–84 (1965). from the cellular network.
In effect, a cell-site simulator conducts a door-to-door search
of an area, and the authorization to use such a device could be
considered a general warrant. See Vernonia Sch. Dist. 47J v. More Glossary entries →
Acton, 515 U.S. 646, 670–671 (1995) (O’Connor, J., dissenting).

GLOSSARY OF TERMS i Written with the invaluable help of Ed McClees, whose firsthand
experience as a prosecutor working with law enforcement agents
The International Mobile Subscriber Identity (IMSI), seeking court orders and warrants for electronic surveillance lent a
3 voice of practical experience to this article
Electronic Serial Number (ESN), and Mobile
Identification Number (MIN) are different types of ii United States v. Rigmaiden, CR 08-814-PHX-DGC,
unique identifying numbers that cellular networks 2013 WL 1932800 at *1–2 (D. Ariz. May 8, 2013)
use to identify and communicate with a specific iii Robert Kolker, What Happens When the Surveillance State Becomes
phone connected to the network. an Affordable Gadget?, BUSINESSWEEK (March 10, 2016)
available at
A pen register is a device which records or decodes -becomes-an- affordable-gadget
incoming calls to a particular phone. A trap and iv When your conspiracy theory is true, WNYC (June 19, 2015)
trace register is a device which records or decodes available at
outgoing calls to a particular phone. These devices -theory-daniel-rigmaiden-radiolab/
can be easily distinguished from a cell-site simulator, v Sam Biddle, Long Secret Stingray Manuals Detail How Police Can
which tracks the location of a cell phone. Spy on Phones, THE INTERCEPT (Sept. 12, 2016) available at

5 A mobile tracking device is a device which permits the vi State v. Andrews, 227 Md. App. 350, 380 (2016)
tracking of the movement of a person or object. While vii United States v. Lambis, 197 F. Supp. 3d 606, 609 (S.D.N.Y. 2016)
a cell-site simulator functions as a mobile tracking
viii Stingrays: The Most Common Surveillance Tool the Government
device, it may have other capabilities that a typical
Won’t Tell You About, ACLU OF N. CAL. at 2-4 (June 27, 2014)
mobile tracking device – like a “bumper beeper” –
does not have. ix ACLU v. DOJ (Stingrays), ACLU OF N. CAL. (Jan. 13, 2016)
x Cyrus Farivar, Cities scramble to upgrade “stingray” tracking as
end of 2G network looms, ARS TECHNICA (Sept. 1, 2014) available
An ESN reader is a device that reads the electronic at
6 upgrade-stingray-tracking-as-end-of-2g-network-looms/
serial number from the data track of a cell phone
if the device does not intercept the contents of a xi In the Matter of the Application of the of Am. for an Order Relating
communication. While a cell-site simulator may to Telephones Used by Suppressed, 15 M 0021, 2015 WL 6871289
function as an ESN reader, it may have other at *1 (N.D. Ill. Nov. 9, 2015)
capabilities, which intercept the contents of a xii Stingrays: The Most Common Surveillance Tool the Government
communication. Won’t Tell You About at 9-10
xiii Complaint for Statutory Special Action and Injunctive Relief,
Hodai v. City of Tuscon, No. C20141225 at Ex B. (Superior Ct.,
Pima Cty., filed Mar 3, 2014) available at

xiv Baltimore Police Stingray non-disclosure agreement, Baltimore Sun
(Apr. 8, 2015) available at

xv Andrews, 227 Md. App. at 420
xvi FBI Domesic Investigations and Operations Guide, FBI at
CONTINUED : CELL-SITE SIMULATORS (Oct. 15, 2011) available at

Nicolas Hughes started his legal -evidence-behind-redaction-marks/agents-warned-not-to-use-
career at State Counsel for Offenders stingrays-for-evidence/
and has been with the Harris County xvii Minutes, Meeting of Houston City Council (Oct. 16, 2012) available
Public Defender’s Office since 2011. at

As a former engineering student and xviii Stingrays: The Most Common Surveillance Tool the Government
Won’t Tell You About at 9-10
IT worker, Nicolas has a great interest
in the application - and misapplication xix Stingrays: The Most Common Surveillance Tool the Government
Won’t Tell You About at 10-22
- of science and technology in criminal
xx Andrews, 227 Md. App. at 401
cases. Nicolas currently assists the trial
xxi Lambis, 197 F. Supp. 3d 609–616
division of the Public Defender’s Office
with forensic-related issues and works on xxii Acquisition of Wireless Collection Equipment / Technology and
Non-Disclosure Obligations, U.S. Department of Justice
special projects (June 29, 2012) available at


The Real Human Cost
of the War on Drugs


The Real Human Cost of the War on Drugs

In my criminal defense practice, I travel to four different and distinct counties in the Houston
area. I get to see first-hand how different judges, prosecutors, and juries feel about the war on
drugs. Those reactions are often quite varied from court to court, as well as county to county.
There are certain costs associated with the prosecution, as well as defense, of those that find
themselves in the criminal justice system on drug cases. These costs can be quantified. For
example, in 2016, the United States spent nearly $30 billion dollars on the War on Drugs on
the Federal level.i Fox News estimates that nearly one billion dollars has been spent on the
War on Drugs in the past forty years.ii
I also get to see the effect the war on drugs has had on those accused of drug related crimes.
That human cost is not as easily quantified and is, often, impossible.

In one smaller county near in the State Jail to two to twenty They were barely scraping by with
Houston, I represented a woman years in prison. Her bond was set Tonya’s help, but with the matriarch
we will call Tonya. She had been in accordance with the local bond of the family in jail, things crumbled.
charged and convicted in the schedule, which was beyond her I tried, as did Tonya, to keep in
1990’s with low level felony drug financial ability. I spoke to multiple touch with the family, but soon, the
cases and in late 2015, Tonya members of her family, including phone calls were not returned and
was charged with possession of her daughter, and they consistently eventually the phones were “no
less than a gram of a controlled told me that they just couldn’t longer accepting incoming calls.”
substance, a State Jail Felony. For afford the bond. The lab report came back after
comparison’s sake, a gram weighs Her bond was eventually reduced, nearly seven months and showed
roughly the same as an average yet, sadly, it was still beyond their that Tonya was in possession of one-
paper clip. Before she was reach. Tonya sat in jail waiting for the tenth of one gram of a controlled
arrested, Tonya was working in the Department of Public Safety’s Drug substance. For such a tiny amount,
service industry, earning an honest Lab to share the results of the drug a nearly unquantifiable amount of
wage. She lived with multiple analysis for more than six months. drugs, Tonya lost touch with her
members of her extended family. During that time, while she sat in jail daughter and family, lost her home,
Due to Tonya’s prior felony history, on a less than a gram possession her job, and almost seven months
her penalty range was enhanced case, her daughter and her family of her life.
from six to twenty four months were forced to leave their home.


In another county near Houston, I It took more than four months a few months, Jimmy’s case was
represented an older man we will for Jimmy’s case to get to court dismissed by the District Attorney’s
call Jimmy, who was charged with the first time. Jimmy, like Tonya, Office. He got back in the good
possession of one to four grams could not afford to bond out and graces of his family, and everything
of a controlled substance, a third was brought to a cattle-call docket seemed like it was trending
degree felony. Unfortunately, along with nearly sixty other citizens upwards. We kept in touch for a
there was more to the story as accused of crimes. His family could few weeks. Then one day, Jimmy
he also had several prior felony afford to bond Jimmy out, but stopped answering my calls. His
convictions. Jimmy was enhanced they chose not to. Whether it was phone went to the all too familiar
to a potential range of punishment frustration or tough love, I don’t “not taking incoming calls” refrain
of twenty-five years to life in prison. know, but Jimmy stayed in jail I hear entirely too often.
I met with Jimmy in the county throughout this process. Despite I feared he was back in jail, and I was
jail shortly after he was arrested, a timely request months earlier, right. This time, there was no happy
and he told me that he was in the not all the discovery was ready at ending. Jimmy was pulled over for
wrong place at the wrong time. I the first docket call. Jimmy’ s case speeding, and the police found a
thought to myself that I had heard was reset for several months. The sizeable amount of a controlled
that same song and dance about judge did grant Jimmy a Public substance in his lap. Back in jail,
some other dude’s pants, or car, Recognizance, or PR bond, due to he began the months long process
or hotel room so many times, but I the lack of discovery. all over again. Eventually, the lab
still dug into his case. I discovered Once Jimmy made bond, he report was positive, and Jimmy
that he really was at the wrong got back to work. While he was accepted a plea offer for several
place at the wrong time and that in jail, he worked for the local years in prison. He lost his job.
there was virtually nothing tying county Sheriff’s Office doing His father, a local religious leader,
Jimmy to the drugs found at the skilled maintenance work. After was ashamed and eventually quit
scene, other than, of course, his his release, he picked up work returning my calls.
mere presence there. at a local mechanic shop. After

I represented a third man in a His sister, Elena, was at her wit’s The judge also told him that if
larger county that we can call end. She had bonded him out of Esteban was serious about getting
Esteban. Esteban had been in and jail countless times. She had left clean, she would consider putting
out of trouble for years. He’s been him in jail countless times. She him on probation and sending him
convicted of felony offenses since I had hired several lawyers and sent to an intense rehab facility for a
was in grade school. He appeared her older brother to rehab twice. minimum of six months. Esteban,
to be, and later confided in me She didn’t know what to do and to his sister’s surprise, chose
that he was, a drug addict. He had was distraught. rehab. He’s still in rehab, but his
been convicted of a possession The judge in Esteban’s court offered sister keeps in touch with me. She
case. He had been convicted of him only a few months in jail, which, told me a few weeks ago that he’s
theft cases that he said were the considering his criminal history, was an entirely different person even
fuel to his addiction. He had been a fair resolution of his case. after only a few months in rehab.
on probation, he had been to jail,
and he had been to prison.

Is imprisoning addicts for low level drug offenses a viable solution? Does it
make sense? Is it justice? More than 143,000 Texans are currently in prison.
This figure does not include those in county jail awaiting trial or having been
sentenced, those on probation, or those in the Federal system.iii Of that figure,
more than 20% are there for possession of less than one gram of a controlled
substance such as cocaine or heroin. Is imprisoning so many of our citizens the
Vik Vij
Vik Vij is a criminal defense
best use of Texas’ finite financial resources? attorney in Houston who
So, what’s the point you may be asking yourself? This: ask yourself how much practes in Harris, Galveston,
of the money spent on the war on drugs is spent on education? The answer: Brazoria and Fort Bend
less than $70 million dollars. A mere drop in the bucket of the $30 billion.iv Counties. He’s the father
Shouldn’t much more money be spent on education? If we change or reduce of two amazing girls and is
demand, won’t there be a change in supply? I would also propose a long-term a fan of all things Houston.
study on recidivism rates after intense rehab programs as compared to the Connect with Vik on Twitter
status quo of locking people away for such minor transgressions. at @Vikvijlaw
Are we winning the war on drugs? Or are we losing the war on drugs?



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