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Fitri yea) Q “Whaat be dragged into the 212t century, but Im glad a4 ee tee eee me | PUSH ANC I6GC1 And itso simple, Vean't mess it ‘A MOBILE LAW LIBRARY Brian Wice, HOCLA Linayer of be Yeo stem Press Lawyer of the Year Pa Se aS PRESIDENT ELECT Christopher L. Titico Tees SECRETARY Carmen Roe TREASURER Steven H.Helpert ES aes Prt Ca Cg eo a Ser Pes re Ce Sra Tay Rea) ears ler) et Georoev. Panam ears oe eestor oer ed een) eM erg era any recy ae ee woe emi ita cs uae Se ey Near erated Ou een ners eed De ae eae te Rte ttc) 4: CLE Update 5 ::AWord from the President by Earl Musick ining Warriors 9 ::HCCLA News Round Up Welcome New Members! We Are 600+ Strong! :: Mental Heaith Court Incentives ‘Mock Trial Competition HCCLA Urges Sunset Commission to Improve State Commission on Judicial Conduct 12: Charter Member Ceremony 13 :: HCCLA Hosts 1st Teon Law Wintor Program 14::2011 Holiday Party 16:: Texas Has a New Eyewitness Identification Law & Model Policy...Now What? by Scott Ehlers 21::Practice Pointers for the Eyewitness Identification Case by Kathryn Kese 23: Grandy Jury Service: A Lawyer's Perspective by Carmen Roe 28:: The Harris County Public Defender’s Office: Juvenile Division by Stophon Halport 29: :Protecting Juries: HCCLA Ethics by Robert Peron 32: :Falsely Elevated Ethi Assay Blood Testing by Mark Thiessen 35::49.04-37.09=NOLLE by John Denholm 39: :HCCLA Extras ‘Ad Rates New Member Application 10 ne | Results Using Hospital CLEEVENTS ttorney Ready Room :: 20" Floor Criminal Justice Center :: Noon Pikes eee Oo Ry IPA rau Pam UO RU LIT ag NUP CUCU eee eS EVA atta ly CALL-IN TALK SHOW re Houston Media Source Comcast (Channel 17) ATET U-verse (Channel 99) htm © revo ‘The Harris County Criminal Lawyers Association (HICCLA) now represents over 600 Harris County criminal defense attorneys. On November 4, 1970, C. Anthony Friloux and other Harris County criminal defense attorneys chartered HCCLA. They knew by working together collectively they could provide assistance co members and Ihave a voice in the administration of criminal justice. ‘As T chink about all the accomplishments we have made ‘throughoue the past year it is obvious we have come ¢ long, ‘way as an organization. I believe our voice is che strongest ic has ever been, and our organization is being regularly corsulted by the power brokers involved in the criminal justice system. Recently, we have assisted the DA's office and the civil district court judges regarding expunetion issues (thanks to Danny Eesterling for tzking on this project) and we assisted che coanty criminal courts with ‘occupational licens issues surrounding the new legislation (hanks to Troy McKinney for his valuable input and etailed recommendations). Additionally, we met with the Bureau of Justice Assistance at the recommendation of the disrice court judges to discuss docket management issues (thanks to Danny, Mike Turner, JoAnne Musick, ‘and Chris Tritico for going with me ro discuss the courts), and we heve been called upon to participate in various commictees addressing jail overcrowding (Chris, JoAnne, and [each serve on separate committes) a word from our president — Carl Wis ich, ‘The point is we have come a long way over the years, and our voice is finally being heard, In addition t0 the “work” our members come together for a little fun. Special thanks to Mark Thiessen, Franklin Bynum, Christina Appelt and others who helped wich our holiday party. This year was a tremendous success wich approximately 1,000 in attendance throughout the evening. and night. Also, a special chanks to JoAnne and her husband Den Long for setting up the photo booth, i¢ was a popalsr added attraction this year HOCCLA is involved in many projects ranging from resding the Declaration of Independence to working with local youth, so reward yourself by getting involved. You possess a valuable gift you should shere with others. Take advantage of what HICCLA has co offer, but more importantly, volunteer tohelp and make our organization even bette Hopefully as your president I can turn ever the presidency to (Chris Tritico and leave the orgenizatioa a litele better than ‘when I took over the leadership. Ie i also my hope Chis will end his presidency with a better eeganization than he started with, We have made great serides and we are capable af even greater progress. TTT LC es Congrats to Jed Silverman for getting his .13 blood test suppressed in Court #7 with Jim Anderson on the bench! Jed ‘caught the State when the chain of custody was 4/16/11 ar the warrant was signed 4/17 st 121Sam. The State tried to correct their mistake with the “day light saving time” defense; but Jed got Judge Anderson to take judicial notice that daylight savings time started a month before. After that debacle, the Judge granted the MTS aoting“I've told these officers not to jump the gun and wait for the warrant to be signed.” Get all the records you can and be meticulous in your review. What a great way 10 start out the New Year. Great work! Kelly Case is consistently bringing his “A” game to trial and his success in the 176ih was no exception. On Fridsy the 13th he successfully walked his client home after a hung jury involving fan accident and a blood draw result of .172. The tral was full of excitement including when the SEST officer fell down in the courtroom during his demonstration. The drama contiaued when Kelly tore apart the State's blood expert in front ofthe jury. Wi ‘an 8 to 4 split for guilty, the jury had reasonable doubts about the case. Kelly thanked Robert Eutsler and Lori Botello for their help. Way o go! Inadifficult aggravated robbery casc in the 35st, Mike Fosher never waivered in his client's innocence and he announced ready for trial. He picked a jury on Friday and by Monday the State dismissed the case after finally agrecing there was a bed identification of his client. Incredible! The modest and lovely JL. Carpenter received a 2-minute ‘ot guilty on her assault case after receiving her new lapel pin announcing her HCCLA membership status. Some speculate that the short time ittook the jury to deliberate was tosk where they too could get a pin like hers, She is a warrior and a darling of the defense bar who looks good doing great work! After Brian Wie and Carmen Roe lost their bid for a new trial in front of Judge Shoemeke (Fort Bend County) based on ineffective assistance of counsel, Brian won a 3-0 reversal inthe 14th Court of Appeals without oral argament, The court denied the State's motion for rehearing before the ink was even dry! ‘me orenmeR Josh Willoughby and Andre Ligon fought hard to victory on ‘felony evading in a motor vehicle in Beaumont. In difficult, Court, it took jurors just over an hour to come back with a not guilty verdict. Great work in what was described as a horrible court! We are so proud to brag on Terri Zimmermann who is always exceeding our expectations. Terry was recently selected to be a Colonel in the Marine Corps Reserve. This is HUGE honor. It, is an extra special thing, statistically, for a fernale to receive this promotion. She has worked her way through the ranks starting, as Second Lieutenant in 1989, on to First Lieutenant, Captain, ‘Major, Lieutenant Colonel and now Colonel. Next would be General. Now that’s some girl power! Congratulations (soon to ‘be) Colonel Zimmermann! Mike Driver scems to be everywhere these days with latest victory coming to us from Dallas County on a theft of services cease. Mike's client was hired to build a driveway. When the deal fell apart, the complainant demanded the money back. When the client refused she went straight to the Dallas County DA, Mike told the DA thatthe complainant was using the criminal justice system to get money fiom his client, yet the DA refused to dismiss, Mike took it 0 a bench trial where the judge took three seconds to find his cient not guilty Craig Still and Scott Pope worked together to make the ‘impossible happen in the 185th with @ seemingly indofensible stabbing case involving a truc habitual on a40 year parole. The ‘ease was dismissed in the middle of trial after the complainant changed his story, refused to testify, and told the prosecutors 10 0 @#S themselves. Proof that when there's nothing to lose, there may still be @ Tot to win!! ‘And the hits keep on coming for Jed Silverman, who snatches a DWI 2nd out of the State's grasp in Court 13. No test, ro accident, but client admitted she was impaired on video, ‘Mark Thiessen’s client blows @ .172 after running « red light, almost getting into a fight with the arresting officer who called his gislfviend a "drunk b@&ch, and gives a mediocre performance, at best, on SFST’s. While lesser lawyers might cower, it would prove to bo 20 match for Mark's legal prowess. Two days into trial, Matk uses one of his secret sources (Amanda Culbertson) t6 reveal that SFTS officer was not certified as breath test operator as previously reported therefore, the 15-minute observation period was not completed. Bottom line: NOLLE! ‘Congratulations to Celeste Blackburn who had a beautiful baby girl and also got the Waco Court of Appeals to remand a case on, ‘a new trial issue for further proceedings! ‘Joseph Ruiz, ably assisted by Mark Thiessen, recsived a not guilty on a DWI where client drives the wrong way ia downtown traffic and almost hits a deputy. Deputy finds HGN -6, WAT-6, OLS-3. Client agrees to breath test and blows a 0.000 but admits to smoking weed 14 hours earlier. Joseph knew that statements made post-arrest and pre-Miranda must be videotaped (38.22) and coupled that with 2 38.23 Motion to Suppress the statement. After winning the motion and keeping the statements out, he went through each DRE step, and systematically dismantled the cae. Congratulations to John Denholm who successfully argued 4 Motion to Suppress in Court 15 on a DWI case and taught everyone some things about radars and patrel videos. The issue ‘was whether the HPD officer actually clocked his client on radar traveling 45 mph. John walked the officer through his radar training and got the officer to commit that redar only picked up the clients vehicle and not the pickup truck traveling just ahead. of the clients car, John schooled the officer and the State on. radar detection flaws like a pro. He then went on to teach even, the State about the iView3 system that HPD switched to two years ago, which apparenly shows a whole lot more information than what appears on the video screen we are all accustomed, to Watching. Aer a short argument, the judge suppressed all evidence from the stop, finding thatthe State didnot provide any evidence to counter the doferso's assertions (on either ground), Jed Silverman takes no prisoners and continues his flery start to this yea, scoring another acquittal; ths time on a prostitution ‘case, Jod's clicat was caught on tape making some damning Statements. In what was the work of genius, he stood up and said, “I robbed the Sac n’ Suds.” Everybody looked confused ‘and he went on to explain that if you haven't scen My Cousin Vinnie then I just confessed to robbing # Sac n' Suds. But placed in the proper context, you can't convict and you know that my admission is not truc. He went on to convince the jury that you cannot convict a persoa based on words without ‘context and his client's admission was just part of his “gare” taken cut of context! Monique Sparks and Sunshine Swallers fought a difficult Date for an entire week in Brazoria County. While the jury ‘was out, the judge granted a directed verdict on their burglary ‘case. Incredible work ladies! Paula Silva got a not guilty in Brazos County on a possession ‘of marijuana case where the judge initially denied 2 motion to suppress based on affirmative links but that did not stop the Jury from waiving her client in to find him Not Guilty. The Jjury believed her elient when he took the stand and denied the marijuana belonged to him and did not believe a convicted felon called by the State as a rebuttal witness. A not guilty for Paula before lunch is very impressive! ‘Congratulations to Dorian Cotlar end William McLellan for getting @ much deserved NOT GUILTY in the 177th ‘Onlookers report that after Dorian’s great cross-examination of the complainant, the jury stopped looking at her after she ‘admitted to drinking six beers and six shots the aight of the incident and seemed to remember every litle detail except sex. She also admitted she did not verbally tell his client “no” bat she ‘said it in her head’. It seemed oven the prosecutor stopped believing her after awhile! Although Steven Goins was too modest to give us many details, his client was acquitted of all charges. Steven is as impressive inside the courtroom as he is outside of it. Congratulations! CONTINUED: WINNING Warriors ‘Jim Butler took home victory in Court #14 even though Judge Fields allowed the State to introduce the HGN video. In what can only be described as a difficult court for DWI cases, Jim overcame the judge allowing the jury to hear his client's ‘comments on the video that he had a prior DWK arrestin spite ofhis 401, 403, and 404 objections. The video also showed the arresting officer lecturing his client about how many fatality DWI accidents he bad recently seen. Incredible victory! Jed Silverman and Steve Gonzaller do it again and in record ‘fashion in the 149th District Court, Brazoria County. Their client was cherged with Aggravated Assault with a Deadly ‘Weapon in a family violence situation. The dynamic duo announced ready for trial and the jury returned a Not Guilty verdict ‘Tyler Flood secured a three-minute not guilty on a DWI in Court #9. A judge was overhcard saying "When he has cases on the tial docket, there is no doubt he is taking the czse 10 tial." Itis nice to have the reputation of not being afraid to go to trial and thet is exactly what we expect from Tyler - along with all the incredible wins of course. Jim Medley dazzles with a successful motion to suppress in trial on his UCW in Court #10. The accused was sitting in his car at a friend's apartment complex when he was approached by security for loitering. During the encounter, the secutty {guard sees the butt ofa gun peaking from beneath tbe seat and shouts,“ gun-gun”, pulls out his firearm, points it at the chest of the accused and docs a citizen's arrest complete with handcuffs, while waiting for HPD to arrive! They charged his client with UCW. After the State called its first witness (the security guard), im thoroughly cross-examined him and moved to suppress the evidence based on te illegal citizen arrest. Judge Ross granted Jim's motion and the State dismissed the ease shortly thereafter. Nice work Jim! With a series of legal maneuvers in Court 13, John Denholm and JoAnne Musick forced a Brady compliance bearing ‘complete with ays of testimony and various subpoenas, secured ‘an extra video the officer failed to preserve, and had the deputy admitting to concealing evidence in more than oae case. The result: a nolie, You can read all the details in his account in this edition of The Defender. ‘me orenmeR Monica Gonzales walked her client out of project court in & less than a gram case where an HPD Gang Task Force officer, ‘who has a history of being veravity-challenged, was the primary officer. Monica apparently crushed him as she exploited yet another challenge to his veracity David Cunningham is certainly no ranger to vietory, and this time he tried his "fist DWI since the Clinton administration” and walked his client right out of Court #5, free and cle Brent Mayr wins a writ of habeas corpus in another BAT van case in Court #1 based on the DA's office failure to provide ‘Brady information. Some prosecutors never learn the meaning of Brady ‘Soan Buckley grabs en acquittal in the 183rd with Val Zuniga helping him pick a jury. Defendant shot the decedent twice in the back, believing the decedent was reaching for a gun that D did't see. Issue was whether D, who was illegally packing, 40 cal, sought out the decedent while unlawfully carrying, to discuss D's beef with the decedent (thus disqualifying « self defense claim), or whether D sought out the decedent in, connection with someone else's beef with the decedent. Jury found as tothe later! Not one to be shy witha dispositive mation to suppress, Norm, Silverman showed Judge Barr the way to suppress the dope and ‘walked away with a dismissal for his elient in a 2nd degree dope Congratulations to Kathryn Kase on her appointment as Texas, Defender Service Executive Director. Kathryn has been serving, as interim Executive Dizector and before that was the Trial Project Director. Kathryn has been at TDS since 2002 and is a highly regarded member of the capital defense community. Battling in the court and on the street, our HCCLA marathon runners all successfully completed the 2012 Aramco Houston Marathon, Members Carmen Roe and John Floyd ran their first half marathon (13.1 miles), while Sylvia Escobedo and ‘Tom Berg ran the full 26.2 marathon, Congrats to our runners! Se el cao ed ead Pe reliant Pepa ae ead ‘Samuel Serrano ad Cad Pal ed Matthew Brandon Maggiore Sa! Seeded Seed Ee Cet) ed ad Ded Peas Dead With the promise of a steak dinner and a membership drive. HCCLA tops 600 members strong. Carmen Roe kicked off our drive by signing up Amold Lopez. And mI Josh Scheffer brought us over the top by sponsoring our 600th member. Joel Hayter. These lucky members and new members will enjoy dinner and conversation with Earl Musick and Todd Dupont at The Strip House. Thanks to Earl and Todd for thoi continued generosity. Speaking of generosity, spocial thanks to Hon, Jay ? Burnett for donating memberships for 5 new members, As of now, we are steadily working toward 700 members! Thank you to all the members who helped encourage new members to join. A special thank you to Christine Appelt, who single-handedly processed all these applications. HCCLA SPONSORS: MENTAL HEALTH COURT INCENTIVES Each year, HCCLA strives to make Christm just a Httle better for those in need and for the past several yeors we have focused our efforts upon ‘those involved in the mental health court in Haris County. Once again, our members have come ‘through and provided the donations necessary to provide $2,000 worth of ‘incentives" to those probationers successfuly navigating the mental health court docket. Reward is a great motivator, and Staci Biggar assisted us in stopping for rewards for many of the successiu probationers. Probstion officers and court personnel assessed various, probetioners and identified those in need and suoceeding. Staci was able to take that fist and purchase its and gft cards to make their Civistmas just a bit better and to congratulate theit success and rehabilitation cin us again next year as we: continue this great tradition. reo @) peer Texas HicH ScHooL Mock Triat Competition This year, HCCLA hosted the Texas High School Mock Trial Regional Competition cn Saturday, February 4, 2012, in the Criminal Justice Conter. While the Dallae Ber Aecociation ie responsible for the organization and administration of the Statewide high school mock trial progrem, they rely on local organizations, ike HCCLA, to administer the regional ‘competitions which send finalists on to state rounds. Teams finishing in tho top of the state rounds will go on to represent ‘Texas in the Netionel finals Our regional winner wes int Thomas Episcopal team, ‘coached by our very own Casey Garrett. Finishing second in a very close final round was the Providence Classical School team. HCCLA will be pulling for Casey and her team to ‘advance all the way to the National finals. ‘orem ‘Approximately 200 Toxas high schools, invoNing over 2000 students, compete annually in the State competition. Students, farny and friends filed the court rooms on the 11th floor for the regional rounds of competition. Thanks to Judge Hughes, wo |wore able to use the four court rooms on the 1th floor for this yeer's completion free of charge Several of our members served as judges while other members sat in the jury box providing scoring of the students. The judges 3d the student lawyers and witnesses on their performance in the mock irl. kt was 2 very rewarding experience for all our members who volunteered their time for this event, including Danny Easterling, Tom Berg, Robert Bennett, Bob Loper, Chuck Stanfiolé, Deborah Keyser, and Jackie Carpenter. ‘The Board voted to host the event again next year. Each year the ‘mock vial alternstes between ell and criminal probloms. Next ‘yeer's mack trial will involve 2 criminal issue. Special thanks to James Stafford and Staci Biggar who organized this year’s Competition; hopefully, they mill remain involved again next yea. Volunteer to be involved, you wil find it extremely rewarding) HCCLA Urges Sunset Commission er | to Improve State Commission on Judicial Conduct vary beclve yenre OF 6 state agencies 12 Ae oe complainto against deco thet Tenulé 0% fgo aicongh “Sunoet Review! 2 sa cie ¢ toe, | ore ct sanetions Joulé reasonably conclude Ggency should ve atolished OF, wrponnos. me tet te SOIC 12 vander-recourced, inadequstely Sunoct Advisory Commission (Conntosion), which 19 stated, andor ip not fully exercising ito Suet of twelve legialatore appoints’ 2 Gowers to investigate and Souci! qudgen who ma ant oversee and the Spline 9 ta violate the lav oF Onde Of Judicial Conde! sae of Roprementativen, conducts See ak Rn tates: got the etenion rien Roge=o at of Criminal Tustice, end the Board OF ee ee ngeey in beetle Pardone ond Parole see gendztions vill eo 40 legisiatore £07 ‘the ‘i 20%5 geoston." frou the public, anctuding public ear) end 8 0 coe IE HOOTA will keep ite members profesoionel organization. On SAme=y 2p HOULA wpdated on when ne “pull hearing will oocu 3% Ppatteed ite recommendations 0% 7 State Aubin 90 mienber> Cam ‘pereonally uzge the Sunset Ciavere know, BOTA nen size hand Nexperiemco Unluding: DTTUTINS rignte for 00 nt Sety the BOJC. we have filed nunerces conplaints clarifying that yuiges may Pe about judicial vc with the SOIC to 11tse oe meroved for willful oF persistent ‘avail. The letter noted: Soletions of the Code of OF Proceiure and ngoona thee found th ‘qvard judges violating the Polr De ‘ot Bar Journal: tower ipen a guage sTageDly SN Segendant's pond weauwse Te bod Te TeMained Specie) thane to Comet Roe, Seott EMlers, sere, Otnior reabere Rave cOnDUined chant tne Robert Hickman, ond S00 Yokinney for thet Tek of ‘transparency in the erestigation nerd MOR 72 putting togetner the eo uel! a5 too inadequate sieht OF eeommendationsy Excellent work Fcemtrama, TC one rosie ot the Yery 2ow == Harris County Criminal Lawyers Association honors charter and lifetime members. Dick DeGuerin, Richard "Racehorse” Haynes. Jerry Patchen, Don C. Smith, and Theodore Trigg. Thank you for zealously defending the Constitution; maintaining integrity, honor, and ethics in the practice of law: and assisting, supporting, and protecting the defense practitioner in the fair administration of justice. It was your courage and leadership that began this great organization November 4. 1970. @ wera HCCLA HOSTS Ist TEEN LAW WINTER PROGRAM ‘The four-day “Teen Law Summer Program’ in Houston is a familiar part of the summer landscape for local teens and is made possible each July by the HARRIS COUNTY CRIMINAL LAWYERS ASSOCIATION, in conjunction with the Houston Young Lawyers Association. HCCLA, however, did something extraordinary in December of 2011 when it hosted the very first edition of the TEEN LAW WINTER PROGRAM. Twenty-two students in grades 10-12 at the High School for Law Enforcement & Criminal Justice participated in the program HCCLA members escorted the teens to courtroom observations ‘and, when not in court, conducted interactive lessons in the 7th floor Attorney Ready room covering the basics of criminal law, court procedures, jury service, and the rights of teenagers. Time was also spent reading the Bill of Rights in the first floor lobby. HCCLA provided lunch and all materials for the teens, as well as awarding each teen a pocket-size copy of the U.S. Constitution and @ copy of the book “To Kill a Mockingbird.” And Thank You to the Harris County Public Defender’s Office for graciously opening their doors and visiting with the teens. And a “thank you" does not begin to cover how much gratitude should be extended to the members of the HCCLA organization as ‘a whole for making the program possible. Without the support of HCCLA, exceptional law-related educational events - like the Teen Law Program at the Criminal courthouse - could never happen. For more information on the summer or winter Teen Law Program in general or learning how to register a high schoo! student (70th-12th grade} in the upcoming program (uly 2012), please contact Wendy Miller at iday Party 2011 Hol Texas Has a N Eyewitness Identificati & Model Policy amram on eles boc Cae CUS The battle to improve eyewitness evidence in Texas ‘courtrooms has been a long, hard slog in Texas, with the first legislative attempt coming in 2005 by Sen. Rodney Ellis." ‘Another attempt was made in the 2007 session to no avail” By 2008, the issuc was heating up around the country and research supporting the need for eyewitness identification roform began to emerge. A Justice Project study found that ‘only 12 percent of law enforcement agencies in Texas even had a written eyewitness identification procedure ? Texas had ‘more wrongful convictions than any other state, 85 percent ‘of which were due to mistaken eyewitness identification ‘One such miscarriage of justice was Timothy Cole, whose wrongful conviction was uncovered in 2008, almost nine years after he died in prison from an asthma attack.* In late 2008 and early 2009, the staff of Sen. Rodney Ellis, (including the author), convened aumerous stakeholder meetings to craft compromise eyewitness identification legislation that all interested parties could live with. The resulting legislation, $.B. 117, passed the Senate and died ‘on the House General State Calendar.® While eyewitness legislation did not pass that year, HB 498, was enacted, establishing the Timothy Cole Advisory Panel ‘on Wrongful Convictions (TCAP)? TCAP was made up of ‘leven criminal justice stakeholders." TCAP was tasked with advising and assisting the Task Force on Indigent Defense in conducting a study regarding the causes of wrongful @ meres convictions, and the ‘procedures and programs that may be implemented to prevent future wrongful convictions.”* Inthe summer of 2010, TCAP and the Task Force issued its report, recommending thet the legislature enact various reforms, including those contained in Sen. Ellis’ 2009 eyewitness identification reform legislation.” The case for urgent legislative action was made one week before the opening of the 2011 legislative session, On January 4, 2011, Comelius Dupree’s conviction was vacated by a Dallas county judge." Mr. Duprev had spent 30 years in prison for a rape-robbery he did not commit, and his Conviction was based on misiaken eyewitness identfication."? Mr. Dupree and his wife, Selma Perkins, attended the opening day ceremonies for the 826! legislature, where Dupree had the opportunity to tell legislators about how he spent three decades in prison for a crime he did not commit. Mr. Dupree and numerous other exonerees visited the capitol many times in 2011, lobbying the legislature to pass eyewitness identification reform legislation (HB 215) and other innocence-related reforms. Joining them were members of the Timothy Cole Advisory Panel, including Kathryn Kase, executive director of the Texas Defender Service, and University of Houston Law Professor Sandra Guerra Thompson, as well as Tim Cole’s brother, Cory Session, HB 213 unanimously passed both chambers and was signed by Governor Perry.* Statutory ‘The state's new eyewitness identification law is located at Article 38.20 of the Code of Criminal Procedure. For evidentiary purposes, it applies to eyewitness identification procedures occurring after September 1, 2012." The law has ‘seven major components: TUT tie potice must have a written eyewimess identification procedure. Every law enforcement agency in the state that ‘conducts photograph or live lincup identification procedures is required to adopt and implement “a detailed written policy” inaceordance with the law." A department may adopt its own policy that mecis specified criteria enumerated in the law, or ‘the model policy discussed below. The written policies must bbe adopted by September 1, 2012.”” [2] A. sodet eyewitness identification policy will ‘be developed. The Bill Blackwood Law Enforcement Management Institute of Texas (LEMIT) was tasked with eveloping and disseminating to all law enforcement agencios ‘in the state a model policy and training materials regarding the administration of photograph and live lineup procedures by December 31, 2011." A discussion of LEMIT’s model policy is below. 13] tre modet policy and individust department policies must be based on science and best practices. Police of Criminal Procodure, Texas” satutory exclusionary rule, does not apply to eyewitness identifications that were secured in violation of a policy promulgated under the new law. Section 5(b) sites: “Notwithsanding Article 3823 as, that article relates o a violation ofa state statute, a flue to conduct photograph or ive lineup identification procedure in substantial compliance with the model policy,” a department's policies, or the minimum requirements ofthe statute “doesnot bar the admission of eyewitness identification testimony inthe courts of this state.” TTI regular review and modification of the model policy, department policies, and training materials. The new law requires LEMIT to review and modify its model policy and training materials not later than December 31 or cach tudd-numbered year. Law enforcement agencies must do the same by September 1 of each even-numbered year. The Battle Over LEMIT's Model Eyewitness Identification Guidelines Throughout the fall of 2011, LEMIT drafted its model eyewitness identification guidelines with the input of various stakeholders from around the state (including the author). In September, stakeholders gathered at LEMIT's headquarters at Sam Hotston State University in Huntsville to discuss the drafi procedures. After that meeting, the policy was revised and advocates became concerned that police groups were having an undue influence behind the scenes. On October 21, Sen. Ellis and Rep. Gallego, the authors of HB 215, sent a letter to LEMIT, requesting that a hearing take place so that the public, including social scientists, would have a forum where “ideas can be discussed in a transparent manner and solutions can collectively be reached." (On December 1, such a public forum took place atthe Texas, Capitol. Attendees included numerous exonerees, who told their stories about the decades they spent in prison for crimes they did not commit based on mistaken eyewitness, ‘identification. Michelle Mallin, the sexual assault victim who ‘wrongly identified Timothy Cole, discussed the seriously. flawed photo array that was presented to her thet resulted in the wrongful conviction of Mr. Cole. She told the LEMIT meson @) representatives, "We want the person who raped us to go to prison, not somebody who is innocent.””” Others urged LEMIT to move back in the direction of their original draft, ‘which was much more detailed. Dr. Karen Amendola, Chief Operating Officer of the Police Foundation, also testified. The Police Foundation was one Cf the sponsors of the recent ficld rescarch conducted by the American Judicature Society to examine sequential and simultaneous presentations of photographic lineups. ‘The research involved police departments from four cities, including Austin. Dr. Amendola noted that, according to the research, “sequential lineups reduced the identification ‘of non-suspect identifications ~ this is misidentifications by about 30 percent. In other words, the standard protocol, ‘of simultaneous lineups leads to one-and-a-half times more mistaken ID’s than those of the sequential lineup method. ‘That is a very large difference.” Dr. Amendola went on to urge police departments to use the research findings and evidence-based practices to inform their policies. She said, “[W]e would encourage [police departments} to consider altering time-honored ‘traditions and practices to adapt policies and protocols such as those developed by LEMIT to increase the reliebility and defensiblity of their practices and the criminal justice system as a whole when there is substantial, credible scientific evidence to support them.” ‘Unfortunately, it appears that some police leadership in Texas, isn't swayed by the research. Dr. Amendola noted that she and Nancy Steblay, one of the chief researchers, presented the study's findings at the International Chie‘ of Police (IACP) conference. Present atthe conference was Austin Police Chief Art Acevedo, “a chief from Houston, and others, many of ‘whom said that in spite of the findings, they still would like {0 proceed with their own judgment and discretion. ... We ‘encourage these organizations to really look at the best scientific evidence,” concluded Dr. Amendola.” ‘The Houston Police Department's resistance to change was, ‘on display later in the forum, when Mark Halloway, captain of the robbery division, testified. From Mr. Halloway’s perspective, most of the eyewitness identification problems continued: Texas Has a New Eyewitness Identification Law & Model Policy... NOW WHAT? canbe solved with more training, and there hasn't been enough rescarch on sequential photo arrays for it to be the preferred procedure in the model policy. He asked, Are we going to make a decision based on a single study that may adversely .. affect viciims and suspects in the future? Or are we going to .. give other agencies the time needed, like HPD, to do additional field studies? .. We request that .. no definitive staiement be put in there that one process is better than the other until there is more (field studies to determine that to be factual. Captain Halloway did commend LEMIT for its model show-up policies and urged it to include in the model policy the need for corroborating evidence to support an eyewitness identification in most circumstances.” LEMIT’s Model Eyewitness tification Policy Despite HPD and other law enforcement resistance, LEMIT apparently concluded that waiting for more field research was, not a good idea, To its credit, it created a detailed policy based on evidence-based practices. The model policy includes the following major components: Wl piinay or “blinded” administrators should be used, “Because witnesses may be influenced, however tmnintentonally, by cues from the person administering the procedure, a blind administrator should be used. This can be achieved through the use of a blind procedure or a blinded photo array procedure (eg the folder shuffle method)."™" [21 sequentat presentations of live lineups and photo arrays are preferred over simultaneous presentations. “Because research shows the sequential presentation of live lineups and photo arrays is lss likely to reslt in misidentfication and carry ‘ery ltl risk of increasing te likelihood of failure to identify the suspect, a sequential presentation should be used." [31 the use of show-ups should be limited and conducted with safeguards in place. The model poliey nots tha [because they involve muliple persons under relatively ontzclled circumstances, «propery conducted live Hineup, ikea properly conducted photo array, is preferable to a show-up.” It also notes that “[b]ecause they are highly suggestive, show-ups are Vulnerable to challenges to their validity. Consequently, ‘a show-up should be employed only where otter indicia of, guilt are present (e.g, suspect located relatively close in time and place to the crime)."* The model policy also includes ‘a sample standard operating procedure for show-ups that is designed to “minimize potential suggestiveness.”™ [AD prcto arrays are preferred over live lineups. Photo arays are prefered over other techniques because (a) they can be controlled beter, (8) nervousness can be minimized, and (6) thoy are cascr 0 manage loistially.® [5] re procedure should be properly documented. “In order to strengthen the evidentiary value of the identification procedure, it should be documented in full. Video documentation is the preferred method. Audio recording is the preferred alternative. If neither method is employed, then the reason for not video or audio recording should be documented." The sample standard operating procedures, says that the photo array should be preserved.” Live lineups should be video/audio recorded or audio recorded and a “still photograph of each individual in the live lineup should be taken and details of all persons present during the live lineup should be documented.”* TBI riers shouta be chosen based on evidence-based practices. Fillers in photo arrays and Live lineups “should be Of the same sex and race and should be reasonably similar in age, hoigh, weight, and general appearance. Ideally, the characerstics of the filler should be consistent with the description ofthe perpetrator provided by the witess(es)”™ UT] eyewitnesses should be given ceutionary instructions. “Because witnesses may be under pressure to identify a suspect, they should be informed that the suspect may or may not be present in live lineup or photo array and thet the person presented in a show-up may or may not be the perpetrator” In addition, “{tJhe administrator should also explain to the witness that the investigation will continue, regardless of whether an identification is mede, as another way of alleviating pressure on the witness to identify a suspect.” vestigative Concepts Unlimited In the wake of the publication of LEMIT's model policy, i hhas become apparent that law enforcement is beginning to push back and resist the reforms the model prescribes. On LEMIT's website, there is a document with a number of frequently asked questions (FAQ) from law enforcement, including, “Do I have to adopt the LEMIT mode! policy?" and ““Why do we have to allow defense attomeys to attend certain inoups...?"* Further evidence of police resistance 10 LEMIT’s model policy is exemplified in a January 16, 2012 letter to Sen. Jobn Whitmire and Rep. Pete Gallego from McAllen Chief of Police Victor Rodriguez. Chief Rodriguez claims that, law enforcement agencies “risk evidentiary admissibility of a photograph or live lineup identification” unless they “prove up adoption of the LEMIT policy or the ‘credible research’ ‘or proof of *{common acceptance)" behind that agency's ‘adopted procedures, Not adopting the LEMIT policy will burden law enforcement agencies with the cost of ‘credible research’, proof of [common acceptance]’, and subject those law enforcement agencies to the cost of proving such at each ‘and every applicable case when 30 challenged” He also claims that the language-specific witness instructions and. witness certification statements is “tantamount to another Miranda type of advisory." Using the New Guidelines to Help Your Client & Im Eyewitness I icati rocedures ‘Considering the degree to which law enforcement is resisting LEMIT's new model guidelines, it would be reasonable 9 conclude that many departments ~ including the Houston Police Department ~ will be writing their own policies, as they are entitled to do under the law. We can also reasonably conclude that many departments will continue to use procedures, i., simultancous photo arrays and live lineups, show-ups, and non-blind administration ~ that have proven through scientific research to be less aceurate and increase the likelihood that a mistaken eyewitness identification will be made. For those reasons, it is imperative for defense attomeys to challenge eyewimess identifications obtained by Acctaldchyde + NADH + H+ Depending on what substance is being measured, it is essential to know the spectral bandwidth and linear range of absorption measurement of the spectrophotometer. A light souiree shines lightYenergy into the monochromator, which determines the particular wavelength end that wavelength is beamed atthe sample. When testing for levels of NADH, the specific wavelength is 340 nanometers. See Nine, Jefirey S., Serum-Ethanol Determination: Comparison of Lactate and Lactate Dehydrogenase Interference in Three Enzymatic Assays, 19 J. Analytical Toxicology 192, 192 (1995), The sample absorbs the energy and the photodetector on the other end measures how much energy actually made it through. If the analyte, NADH, is present then it interferes with the energy emitted and the photodetector detects less energy. Then a comparison is made between what was expected and measured and 2 colormetric response is produced, which is lighter or darker based upon the concentrate of the NADH. Enzymatic assay testing does not actually test the ethanol inthe blood, ike GC does. Instead, the machine measures the amount of NADH produced, which should be directly proportionate to the amount of ethanol present. However, NADH js not specific for ethanol to the exclusion of others. Remember the elient was rushed to the hospital with traumatic injuries. In the course of making his condition stable or saving his life, EMS or hospital staff will administer whatever is necessary and the body will produce natural compounds in an effort to preserve and save the organs. In cases with trauma, Lactated Ringers Solution is a common substance administered intravenously to combat acidosis, which is a chemical imbalance as @ result of acute fluid loss or renal failure. Additionally, lactate is a compound formed by the body as a result of trauma and hypoxia where the tissue is deprived of oxygen. Furthermore, Lactate Dehydrogenase (LDH) is naturally in the muscle eells to breakdown lactate formed after anaerobic exercise, but is also released into the blood stream after trauma or a car crash. Problems arise after a car erash or a traumatic injury when the hospital tests the blood for ethanol using enzymatic assay testing. LDH oxidizes Lactate, whether it is produced naturally of introduced through @ solution, 10 Pynivate using the coenzyme NAD, which is concurrently reduced ‘to form NADH (2,3) ETOH + NADt + Ringer, Lactate, LDH —{ADHILD > Acetaldenyde + NADH (but way mere) + Ht ‘A higher NADH concentration will result in @ higher ethanol result. id. at 193-194. Why is the elient’s alcohol result so high? Simple, look at how much NADH is now produced. Similar to ethanol oxidizing to acetaldehyde and producing NADH, lactate oxidizes to pyruvate also ‘producing NADH. The photodetector is simply measuring. the amount of energy that makes it through and is not absorbed by NADH. However, it cannot differentiate between the energy absorbed by NADH from the oxidation of ethanol or lactate, essen @ connves FALSELY ELEWATED ETHANOL RESULTS USING HOSPITAL ENZYMATIC ASSAY BLOOD TESTING Just like when you stand on a scale and the scale doesn’t ‘know if you are naked or wearing shorts with gold bars, in your pockets. The machine may be “accurate” in the ‘measurement, but the measurement is always relative to the individual, the environment, and any unique circumstances. Since NADH is not specific to ethanol, there is no way to determine what level of NADH is a result of ethanol ‘and what level is due to Lactate Ringer’s Solution, Lactate, or LDH. Ethanol combined with any of these additions will produce a falsely elevated ethanol result with undeterminable error Additionally, there is no way to convert this method of testing to a whole blood measurement, which is required under the definition of intoxication. TEX. PENAL CODE § 49.01(1)(b). In the ‘end, hospital enzymatic assay testing is not specific for ‘ethanol, not forensically acceptable under the Kelly test, and ultimately does not belong in a courtroom. » Hespitals may sometimes use these grey oped tubes oc may ws ed topped tubes with clot activators or noting. Always request anc ‘examine which type of me was used and whether anything was i it SOE: May 10, 2012 ‘The Houston Club ‘Texas Room 811 Rusk, 49.04 + 37.09' = NOLLE ly 23, 2011, Christy Osburn was arrested for DWI by Harris County Sheriff"s Deputy Anthony Aulds. Accordi to the report, Deputy Aulds received a call about 2 Chevy Silverado following an intoxicated driver westbound on Gulf Pump Road. The call slip said the Toyota had run off the road three or four time At 02:08 hrs, Deputy Aulds caught up to the Toyota and stopped it in the 6900 block of Sheldon Road. He reported that Christy Osbum was the driver, that she had the strong odor of an alcoholic beverage when he made contact. He also reported that when Christy got ut of the car, she stumbled and lost her balanee. He subsequently administered the SFST, and placed Christy under arrest. She was read the DIC-24 at the scene and consented t0 a breath test. Christy was then taken to the Wallisville substation (HCSO District 3) and at 03:24 hrs, an Intoxilyzer test showed 0.12% BAC. Both the SFST results and the 15-minute observation time were thoroughly documented At first glance, it looked like a pretty good case for the State. You had a civilian witness who observed dangerous driving facts, a good report, and the prop 15-minute observation time for the breath test. But 178. days, 13 motions and 2 Brady hearings later, the case was dismissed, The Motion to Dismiss read, "Witness testimony and admissions during PTRC create issues making it impossible to prove beyond a reasonable donb. tnitiat PROBLEMS The Harris County Sheriff's Office employs.a video system that comes on automatically when the emergency ligh tumed on. The system also comes on automatically when the patrol unit exceeds 83 mph. Also, when the lights come con, the system records the 30 seconds immediately prior. This allows for recording of the traffic violation that leads to the stop. Despite the fact that Deputy Aulds tumed on his emergency lights and initiated the traffic stop at 02:08, the only video available began at 02:35 hrs and contained an abbreviated SFST which did not include the HGN test, and ended at 02:47, This was the first indication something was amiss. By John P. Denholm The next glaring problem was when Deputy Aulds read Christy the DIC-24. He appears to comply with the statutes until he asks her if she is willing to provide a specimen of her breath. When she inquires as to what happens if she doesn’t, Deputy Aulds deliberately removes the remote microphone from his belt and mutes it’ The video records an apparent animated discussion for the next two minutes before he escorts Christy to the car. Thirty-seven minutes later, she provides a breath specimen, When I watched the video with Christy, l asked her to tell me what was going on, She explained that Deputy Aulds told her that if she didn’t comply, she would be taken downtown and blood forcibly drawn from her. She was told that she was going to give a specimen tonight and she could do it the hard way or the easy way. Her consent had been coerced, Coupling the video evidence with the coerced consent, I knew 1 could get the breath test suppressed. As Christy looked fairly good on video and had extensive medical records to support any problems with the SFST, I thought I could get in an out onthe ease fairly quickly. Surely, the prosecutor would see what I had seen Boy was I wrong. THERE'S NOtHiNG SiMIStER HERE I didn’t see any reason to hide the ball. [told the prosecutor that you could see the deputy tun his microphone off, that the consent had been coerced, and that absent the breath test, they couldn't make their case. The prosecutor noted my concerns on the front of the file and told me he would evaluate the case and get back with me. (Abou 10 tar the microphone off i is right har). °M st dsplayed ewe @) cones 49.04 + 37.09' = NOLLE ‘When the prosecutor did get back with me, he told m talked with the Deputy and he said he thinks the battery might have gone out on the microphone, There's nothing sinister here.” | tried to argue that it was an amazing oincidence that just when Deputy Aulds took the microphone off his belt as Christy asked about refusing, the sound cut off. The prosecutor said he didn’t see that Right then I knew I would have to set it for trial (Microphone las been tened of (No °M' displayed) ‘she ellegedy btcins BRapy & VIDEO 1 filed a Brady/Kyles Motion specifically requesting the unredacted video along with any other Brady material, the motion from Jim Lavine who was teaching a CLE on Brady for the Annual NACDL seminar on DWI defense, Jim made a point that attorneys need 10 more forcefully ‘advocate for Brad material. | also issued subpoenas for both the video custodian and the video. Judge Smyth did grant the Brady/Kyles Motion and on December 9th, we had a hearing on the record. Aaron Harsha, the custodian for video records from the patrol ‘cars, was more than helpful. He did a thorough search of his database and recovered a second video. This previously hidden video was from 02:08 to 02:18 and contained the initial stop and contact between Christy and Deputy Aulds, This video was clearly exculpatory as it showed Christy had not committed a traffic violation in the deputy’s view, and had stopped in the middle of the road only because there was no shoulder and in response to the deputy ‘emergency lights, and Christy neither stumbled nor lost her balance when she got out of the ear. @ we woe (Stopped in a moving lane of tafe” ~ RF indicates Rear & Front emergency ligis on) Furthermore, Harsha produced an email from Deputy ‘Aulds asking that ONLY the video file from 02:35 to 02:47 be archived. This is the portion with the abbreviated SFST and the DIC-24 being read. While Harsha was on the stand, the following information came to light: + Deputies can turn remotely turn the camera on, but cannot tum it off + They can mute the microphone at any time. + When the video is evidence in a criminal case, the deputy has to upload the video from the car to the server via a WiFi hotspot at various locations. The deputy then sends an email to “Fleet Operations” asking a specific video file be archived. + The camera can only be tumed off from inside the car. Ifthe camera is turned off, and then tumed back on, the deputy has created two video files. For both to be archived, both must be noted in the email to Fleet Operations, + In this case, Deputy Aulds created two video files but only requested that one be preserved as evidence. + HCSO’s normal practice is to destroy all video after 90 days unless instructed the video isto be archived + Deputies have the ability to review the video in the cars. * Cars two years old or newer should have the cameras. * Supervisor cars probably will not have the camera. Harsha’s diligence led to the 2nd Brady hearing which was hheld on December 15, 2011. In that hearing, Deputy Aulds took the stand, The following are some of the exchanges between myself and Deputy Aulds:* (After refreshing Auld's memory with his email to Harsha) (Q: And what time did you tell them to archive that? A: Approximately 02:35 hours. ‘And you didn't tell thon to archive at 02:09 did you? “Appareatly not. ‘Okay. Was that your decision to conceal that evidence? How did you get 02:35? ‘Because that was the time of -- the second video, T guess, was the SST, 3: So you reviewed the video before learning the time, correct? bad to have, yes. ): And you were aware the camera records the stop from the ‘moment you turn the lights on, correct? + Yes. ): And yet, you didn’t tell the video custodian to archive ‘rom 02209 did you? ‘That's correct. ‘And that was your decision? Yes. ‘And are you aware that is evidence in a criminl case? Yes. Q: And you deliberately concealed it? A: I dida't deliberately, but it was concealed. POROR OF ORO BEROROPOS ‘How many of them have you edited the videos? ‘A: [don’t have the ability to edit videos. ): How many have you stopped the camera? : I don't remember. ‘So, you have done it in the past? ‘don’t remember if I have or haven't, : Think hard. This is very important Deputy. Have you stopped the camera in the past? 'm sure I've stopped it ‘So, this isnot the first time you have concealed evidence in acriminal caso, i it?” ‘would say no, Finally Q: So, it wasn’t and you testified you reviewed the tape to determine what time the abbreviated SEST was Q: A Q A @ A @ A: 'Q: And, so, you were well aware atthe time you sent that email that thece was a tape availabe from 02:08? A: Yes. (Q: And are you also aware that tapes are destroyed after, 90 days? ve still gota Tot to learn asa 3 year lawyer, but | was confident that since the case was fatally damaged the State would dismiss. When the judge asked if I had anything else, 1 looked a the Chief Prosecutor and asked, “Vou got a motion?” She suid, “No.” Incredibly, they still would not dismiss. The State wanted another ‘date so they could review additional records that [had previously saibpoenaed from HCSO, To me, they were trying to determine if the video problem was systemic. We had our last hearing on January 17, 2012. By now, 1 was, ‘on my 2nd Chief. Following a conference atthe bench, where | explained that ifthe State wanted additional records they could get them with a Grand Jury subpoena, the Chief finaly dismissed the case. Lesson Leanneo ‘You cannot get on the preservation of evidence Fast enough. We were lucky that Harsha was able to retrieve the video, It should have been destroyed on or about October 23, 2011. You also hhave to obtain the call slip from dispatch and the email from the Video custodian and then compare them for time discrepancies. ‘You also need to subpoena all the video from all the units athe soene, Sometinies officers will only submit the best video. ['M call that the “Director's Cut." have found exculpatory evidence he other unit's video on several occasions 1 garce with Jim Lavine that we necd to get more aggressive on Brady issues, We need o push for hearings and the hearings need tobe on the record, the District Attomey's office has iee(s) related to HCSO Deputy To the best of my knowled yet to provide any Brahm ‘Anthony Aulds, Jol P. Denholm an associate with Musick & Musick, LLP. He ts honorably retired from the Harris County Sheriff's Office afier 8 years of service. 1 Tex. Fen Code 9 37.09 TAMPERING WITH PHYSICAL EVIDENCE ~"(a) A persen commits an offense if, knowing that an investigation or oficial proceeding is pending or in progres, hes) alters, destroys or conceals any record, document, cr thing with intent to impair its verity, legibility, or availabilty as evidence in the investigation or official proceeding.” Salpsequent 19 the initial eal, the Toyota stopped and the male (Chis), switched divers with the fen What Ihave noticed on Harris County video (SO & Constable) that when a depaty mutes the mierophone, the °M' jgon which indicates the microphone is revording wil continue to be displayed for anther 30 seconds before disappearing. 4 See Jim, some people do pay atention $-_Transcrpt will be posted on HCCLA website iL BONDS EXPERTS =e) 113-227-1064 “a ~~? Services we Provide: + NATIONWIDE SERVICE DOW ON + Available 24 hours / day + English & Spanish Speaking St aff M417 CONGRESS ST =: a HOUSTON, TK. 77002 _:: T18-227-9629 concen g Checkout ie iGies 1 lei? UL rela UULA SHIP APPLICATION Applicant: Firm Name: Fax: Date admitted to proctice: Would you like to join the HCCLA listserv?: ‘Type of membership (dues) _ Regular membership ($150*) Public Defender (State/Federal) ($75*) New criminal defense lawyer (within two years of beginning criminal defense practice) (S75*) __Senior Member— Age 70+ ($75*) —— Student ($25) Expected graduation date Date ‘Signature of apy Endorsement 1, @ member in good standing of HCCLA, believe this applicant to be a person of professional competency, integrity and good moral character. The applicant is actively ‘engaged in the defense of criminal cases. Date Signature of endorsing member PRINTED NAME OF ENDORSING MEMBER Mail this application to: HCCLA, P.O. 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