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a =DEFENDER® HARRIS COUNTY CRIMINAL LAWYERS ASSOCIATION U Bae aCe Oley Rare Rea) One ei EO 7/18/13 | Danny Easterli uy Fadi ly DUE EUR aio rans) rec R eto ero aL aK-A' 713°518°1738 Delco A COUN eigen (le uae A eee oa sleeping lawyer. What can you doo lp? Vis our web a aa SHOW e Hosted by Todd Dupont Thursday Nights @ Spm n Harris County with we , = b Houston Media Source Comcast (Channel 17) AT&T U-verse (Channel 99) reasonable doubt @ wens 5 ::A Final Word from the President by Chris Tritico +: Winning Warriors ‘uture Warriors : HCCLA News Round Up 8 :: Welcome New Members! 8 :: Fallen Warriors Q :: Automatic Life Without Parole by Wade 8. Smith 14: :Tough Lineup by Joseph Varela 16: :HCCLA Ethics: Loose Lips Sink Ships by Robert Perton 18: :Identification Testimony and the Jury Charge Fifth Circuit Pattern Jury Charge 19: :Identification and the Jury Charge New Jersey Pattern Charge Excerpt 24: ‘Top Ten Things To Remember When You Deal With Prosecutors by Pat McCann 27: HCCLA Extras ‘Ad Rates New Member Application BURNS BAIL BONDS Family owned and operated since 1971 Bilingual staff with over 100 years of experience Shaun, John, Shannon and Shelby License # 74346 “* We advocate a paid in full attorney is a defendant’s best defense Non-Arrest Bonds - we accompany your client to the jail or from the courtroom 609 Houston Avenue 713.227.3400 Houston, Texas 77007 Z Interlock An Automobile Ignition Interlock Provider Sf. & John Burns David Girard 609 Houston Avenue 713.223.4424 Houston, Texas 77007 LS When I was a young man my father taught me about how co live my life. He cold me that there are simple but important principals that should guide your life. Now my dad was not a lawyer, but his lessons are as true for the legal profession as his. First, be honest in your dealings. Be honest with everyone. Second, be professional at all times. Finally, have integrity. My dad cold me that these three things make a person successful throughout their life. Dad was right, Ie is these three principals thar have guided my life and law practice. Honesty, professionalism and integcty are the ehrce simple traits that create great lawyers. This may sound simplistic, however, these traits give you the ability to walk into a court room and tel a prosecutor facts chat cause him to change his mind. These traits allow a lawyer to appear on the day of trial and say (for whatever the reason) T cannot go to trial today and chat is all che judge needs ohear. Without honesty, professionalism and integrity the fight is always a fight. We have an awesome responsibility in representing, ‘what the general public believes co be the worst society has to offer. We cradle the lives of our clients in our hhands and our decisions and our actions can dictate the results. At times our obligation to our client requires tus to have very frank discussions with someone who is going co be convicted that a plea is in their best interest. Ae ocher times we need to discuss and convince someone that they should go to trial. Our clients have to have faith in us or we cannot be effective as theie lawyer. Faith is earned by and through your honesty, professionalism and incegrity a final word from our president yitico More importantly, we can never be effective with juries if they have no faith in us. It is the professional way you handle even the worst set of facts of the hardest ‘of witnesses that proves your worth co a jury. It is the integrity that you show in trial chat gives you a leg up. It is your professionalism in the way you address ‘opposing counsel, the coure end witnesses that signals the jury chat you aze a teust worthy person. These traits allow you to look a jury in the eye and say with conviction "you cannot convict this guy.” I wanted my time as HCCLA Presidene to emulate the lessons of my father. I wanced to leave HCCLA in a better place than I found it. Our membership is up. ‘The level of cooperation between the organization and the judiciary, the DA's office and probation is at an all time high, HCCLA is still the largest local crieninal bae in the United States and we have made a difference T thank each of you for allowing me to serve you over the past year. Ie will be a year of my life thar T look back on. with pride. wore (©) And BOOM goes the dynamite, as Mark Thiessen would say! He is starting off the new year as strong as he finished the last, First by pulling out a victory on a 0.14 breath test in Court 3 - with a high protein diet defense. Then he wins a DWI in Montgomery County. Congrats to Dorian Cotlar and Austen Hobbs who won a PCS case out of state jail court where, through great scene investigation, witnesses to the stop were uncovered (witnesses not listed in the OR), These witnesses directly contradicted officer testimony and helped the jury realize "something isn't right here." Even the judge said the testimony was entertaining. Great work as always Dorian and Austen. Way to start off 2013! ‘Two weeks later in Impact Court, Dorian and Austen managed to hang a jury on an Assault-FV case. Dispute was over a bicycle between a husband and wife. State tried to tur this barely Class A Assault into a 25-Life case! Lisa Shapiro Strauss won a DW1.16 blood tes. Amazing result for her client who drove into a ditch then admitted to cops he drank 10-12 longnecks at his church fish fry. Kudos to Tyler Flood for his DWI victory in Brazoria County. State was forced to offer a reduction in the middle of trial, but Tyler wisely declined. He came back to Harris County to get a .20 blood test suppressed on a DWI-2nd. Incredible results! Congratulations to our members who braved the rain and cold to become Houston Marathon Finishers in the 2013 Aramco/Chevron Marathon, Half Marathon Runners: Sylvia Escobedo, Chris Carlson, Diane St. Yves and Todd Ward (1:55!). Full Marathon. Runners: Jason Luong, Rand Mintzer, Paul Kennedy (14th Houston marathon), Andrew Wright, and Mark Hochglaube. Woodrow Dixon teed it up in Court 8 on a terroristic threat. Jury acquitted on the top charge and found the client guilty of class C assault by threat. Juanita Jackson also got a two word verdict on an aggravated sexual assault caso in the 179th by impeaching the eredibility of the complaining witnesses. © wewra Congratulations to Mario Madrid for his victory in the 182nd. Client was accused of sexually assaulting an elderly patient who was in his care at the hospital where he worked as a nurse. Uphill battle all the way, but jury came back in under an hour with two magic words. Great Congrats to Tammy Kidd who beat an assault case in Fort Bend County, David Bires and Brittany Carroll paired up for a two-week murder trial in the 185th involving a gunfight after a card game dispute, with one dead and several wounded. The jury rejected murder and found the defendant guilty of deadly conduct and assessed punishment at 10 years TDC, Great work! Congrats to Kate Welch and Amanda Fulton for their victory in Matagorda County on an Unauthorized Use of 1 Motor Vehicle case. State offered 5 years deferred, but they took a NG instead. Keep up the good work! Huge congratulations to Tom Moran who won acquittals after a 5-1/2 year Rwanda War Crimes trial. Incredible victory! His client was convicted and sentenced to 30 years in prison for conspiracy to commit genocide and Public incitement to commit genocide. Tom fought hard and out-lawyered the other side on a very difficult case. After spending almost 10 years in prison, his client ‘was acquitted on all counts of genocide, crimes against humanity and war crimes, and walked out a free man, Tom's unwavering commitment to his clients and his dedication and self-sacrifice to the War Crimes trials in both Europe and Africa are an inspiration to us all. Outstanding work and outcome on an international war tribunal case! Tom thanks Cynthia Cline who worked alongside him on this case. Mario Madrid is on a roll! For the second time in two weeks he scores another NG on a sex assault case. In a case of ‘no good deed goes unpunished,’ his client was a 51 year old man charged with sexually assaulting a 15 year old homeless boy who he had taken into his home. CW alleged sexual favors in exchange for room and board. Mario skillfully discredited him and saved 2 00d man’s life. Jed Silverman wins a glorious S-minute not guilty verdict ‘on a DWI in County Court 10. Jed crossed the officer for two days, and the jury quickly agreed the officer wasn’t credible. Double Congrats to Chris Samuelson for 2 big wins in one week! First, Chris took home a directed verdict after he suppressed the HGN on a DWI. Then he got a 10-minute NG verdict in Court 3. Way to fly in and kick “em twice! Congratulations to Tyler Flood for yet another NG in CCL#6 on a DWI. Tyler had an investigator measure the slope on the sidewalk where the client performed the SFSTs and it was 58% more than the road! Tyler's creative defenses never get boring. Great work! Congrats to Murray Newman for a great victory in the 337th. Client was charged with aggravated assault for stabbing an unarmed man during a road rage incident. CW suffered a collapsed lung and nearly died. Jury found D guilty of misdemeanor deadly conduct, 2 years probation. Great result for a tough set of facts! Meanwhile back on the ranch, Andres Sanchez-Ross and Mike DeGeurin deadlocked a jury (11 for not guilty and ‘one holdout for guilty) after a S-week capital rmurder trial in Gunnison, Colorado. Mistrial declared. Amazing result for their client, a native Texan accused of drowning his wife in an cy mountain creek an thet Colorado ranch (After a weeklong trial, Michael Edwards II and Kirby Taylor won a Not Guilty on an aggravated robbery case in the 208th. Co-defendant tried to implicate their guy in exchange for deferred, while State offered Class A misdemeanor theft, Client refused every offer and the jury {got it right. Tus out a bad photo lineup trumped their motivated snitch and sympathetic complaining witness, Gerald Bourque and Morgan Bourque successfully won a NOT guilty on a capital murder case in the 185th, ‘The defendant was found guilty of a lesser offense and sentenced to only 25 years. The incredible results keep ‘coming for this dynamic duo! Joseph Ruiz scores a two-word verdict on a DWI in Court 2. Great result for a difficult set of facts due to shoddy police work and a judge offering advice to the prosecutor before trial Jed Sitverman wins a bizarre case in Court 10 where his Client was accused of indecency (masturbating mude in his driveway). Jed tracked down witnesses in the neighborhood and impeached the complaining witness's credibility with the investigating officers’ testimonies. State oddly chose to reference a show tune during closing, but the jury came back 20 minutes later singing a tune of not guilty... music to our ears, Congratulations to_ Scott and Shirley Pawgan Label-Baccus for a 7-2 CCA decision to reverse and acquit on a non-death capital murder and conspiracy to commit capital murder case. Fred Dahir, and second chair Brittany Carroll, win a NG oon an Assault-Family Member ease in Court 11. Fred had evidence of CW's motive to lie and knew of a recording conveniently destroyed by the police, but visting judge ruled he couldn't mention any of this during closing. Of course, none of this was a problem for Fred “Matlock” Dahr! Dorian Cotlar and Claire Connors score a NG in on an Assault-FV case, All evidence suggested a Class A Assault Since it wasn’t offered as a lesser, the jury quickly retuned with a two-word verdict AN | ey IT ‘wcoston (7) Oey eV orei rote Jn 2006, Robb Fickman came up with the idea that HCCLA needed to honor ‘criminal defense lawyers who had spent their lives defending. the Constitution and the rights of the accused. With the help of Earl Musick and JoAnne Musick, Robb's vision became a reality with a memorial plaque, which is now permanently displayed on the wal of the Attomey Ready Room on the 7th Floor of the Criminal Justice Center. Since then, HCCLA has updated the plaque twice (2009, 2011) to memorialize more fine lawyers. On February 7, 2013, nearly 100 lawyers, judges, fiends and family members gathered as HCCLA held another memorial re-dedieation ceremony, with the addition of 14 names. It was a very touching service. Chris ‘Tritico gave opening remarks, followed by Judge Jay Karahan who gave @ moving remembrance speech. Chris then read each name aloud, pausing to allow Todd Dupont and Blynn Barrow Timmins to stand up and © wens honor their fathers. Robb Fickman read Thomas Dylan's poem “Rage Against the Dying of the Light”, and Todd Dupont closed with a reminder that the lawyers on this plaque must always be remembered. Refreshments and fellowship followed this brief but meaningful ceremony. Special thanks to all those who attended, including: Judges Stacey Bond Mare Brown Susan Brown Margaret Harris Brad Hart Jean Hughes Jay Karaban Mary Lou Keel David Mendoza District Clerk Chris Danie! Memorialized Defense Lawyers Michacl Barrow Rayford Carter Suzie Chambliss Fred Heacock Claude Hippard W.B, “Bennie” House ‘Travis Jonson Jim Lindeman Michacl Mapes Ray Montgomery John O'Sullivan ‘Charles Portz ‘Thomas B. Preston Jim L Steele ATL LIFE PA WITHOUT PAROLE: UNCONSTITUTIONAL OR UNFAIR? ELC eT In the United States, there has always been a strong. respect for trial by jury. This is especially true in Texas, as Texas is one of the few states that permits a jury to hear mitigating evidence and assess an appropriate sentence upon conviction. However, there is a class of defendants whose opportunity for jury sentencing is completely denied, and that is defendants on trial for capital murder who are not facing the death penalty, icc. non-death capital cases. Non-death capital defendants are denied this step of our traditional trial process because the Texas statutes set out only two possible punishments for those charged with capital murder: death or life without parole, When the prosecutor decides to not seek the death penalty, life without parole is the only possible punishment left on the table. Thus, when a guilty verdict is handed down, a life without parole sentence is handed down automatically. In every other case a defendant is entitled to a punishment phase of trial where additional evidence is presented to the fact finder so that an appropriate punishment that fits the facts, circumstances, and defendant himself may be assessed. This includes death penalty cases, where upon a conviction a jury is required to make special findings of whether mitigating, or aggravating circumstances exist to determine if the sentence will be death or life without parole. However as stated, those defendants not facing a possibility of death are not afforded this opportunity. CONTINUED: AUTOMATIC LIFE WITHOUT PAROLE: UNCONSTITUTIONAL OR UNFAIR? thas been argued a number of times at both the trial and appellate levels by defense attorneys that the effect of these statutes is unconstitutional. Is it unconstitutional? Maybe. Is it unfair? Certainly. This is an unfortunate, and seemingly overlooked, situation occurring in Texas criminal courtrooms that is deserving of a more thorough examination. To be clear, this article does not consider cases where the death penalty is sought be the state. Life without parole may be an appropriate sentence in such cases, even though it is the only alternative to death. This article considers only those cases where the death penalty was not sought and life without parole is the only possible punishment, thereby climinating a punishment hearing and creating an automatic sentence. Now, there is in fact another class of defendants that, face ‘automatic life without parole in Texas. That is certain repeat sex offenders. However, they will not be discussed in this article because they can be distinguished from capital murder defendants. These repeat sex offenders are habitual offenders, and it is not the commission of a single crime, but their past criminal history as a previous sex offender that puts these defendants in this position. Capital murder defendants are not in this position because of their past criminal record, and in fact may not even have a past criminal record at all. To a certain extent, the repeat PO ap Pavemlevetcyaie- bole) nobody wants. # Be Anca TAS Procure le thr parent no prion tamales, ‘peoncm pitineyont incomes ur teen i an at a sex offenders have had the opportunity to present mitigating evidence, and they have certainly been given an opportunity to correct their behavior. Thus, they will not be discussed further. ‘The goal of this article is to garner a bit of attention for this issue, hopefully help attorneys facing this issue, and primarily to make the argument that legislators should add a third option for punishment in capital ‘murder cases, with that third option being something less than life without parole. This is for two reasons. First, it would climinate the current automatic life without parole sentence in non-death capital cases, because there would be another possible punishment for a jury to consider, thus making a punishment phase of irial necessary. Secondly, one can envision a defendant convieted of capital murder that is not deserving of life without parole, but something less, and this gives a fact finder the deference to decide LEGISLATION This is a relatively new issue facing defendants and defense attorneys in Texas, which was created in 2005 by SB 60 and is now codified in Sec. 12.31 of the Penal Code and 37.071 of the Code of Criminal Procedure. Prior to 2005, the possible punishments for capital murder defendants were death or life imprisonment. “Life imprisonment” at that time meant a life sentence with the possibility of parole after 40 years, at which point it was up to the parole board whether or not the person should be released. SB 60 amended the statutes and replaced “life imprisonment” with life without parole. The legislature reasoned that the old “life imprisonment” was deceiving to juries, and folt that life without parole would better carry out their desires, and would provide more appropriate punishment choices. In reality the effect was the opposite, and made life without parole an automatic sentence for non-death capital defendants. Thus, a one-size-fts-all approach to punishment for this particular class of defendants has been created simply by virtue of the title of the crime and the election of the state not to seek the death penalty. It takes away all considerations of proportionality and circumstances. Ironic considering the longstanding tradition in Texas of having juries assess punishment, Now is the perfect time for the legislature to revisit this issue because in the wake of Miller v. Alabama, which will be discussed at length in following paragraphs, ‘Texas now has a relatively major issue with its capital murder statutes with regard to juveniles. In Texas, juvenile is any person under the age of 17. Upon a person’s 17th birthday they are no longer subject to the jurisdiction of the juvenile courts in Texas, and would be prosecuted as an adult. However, the Miller court defined a juvenile as any person under the age of 18 Thus, as juvenile lawyers across Texas have noted, after the Miller decision Texas” current capital murder punishment scheme is unconstitutional when applied to any person who commits capital murder after their 17th birthday but before their 18th birthday. This is sure to be addressed by the legislature, and it stands to reason that while they are considering how to remedy this problem that it would be easy enough for legislators to remedy the problem that is the topic of discussion in this article. MILLER W. ALAGAMA Miller v. Alabama (132 S.Ct. 2455) is the latest in a line of cases, such as Roper v. Simmons (holding the death penalty unconstitutional for defendants under 18 years old), which has continually given more protection to juvenile defendants over the years. In Miller the U.S. Supreme Court took up to resolve the issue of whether automatic life without parole sentences for juveniles is unconstitutional. The Supreme Court heid in the affirmative. At first blush, it seems that such a decision is inapplicable and unhelpful for an adult defendant. However, not only can Texas courts consider the decision itself, they may also take into consideration the reasoning that the Supreme Court used to come to that decision. This is of particular importance because the reasoning within the Miller decision falls directly in line with the argument being made for adult defendants here, and finally provides some solid case law support Moreover, it now provides the additional argument that this same protection that we are now affording juveniles should be extended to adults as well. ‘The reasoning of the decision in Miller references two strands of precedent. The first of which deals with mismatches between culpability and the severity of the penalty, and the other which has prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider facts and circumstances before imposing a death sentence. The Court examines these two strands of precedence and it is the union of these two strands that leads to the decision in the case. Peshaps the most compelling and powerful argument that can be pulled from the reasoning in Miller is the Court’s open acknowledgement that life without parole is akin to the death penalty. The Miller Court cited often to Graham v. Florida, which “further likened life ‘without parole for juveniles to the death penalty itself. In those cases, we have prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death.” Id, at 2463-64. “And Graham makes plain these mandatory schemes’ defects in another way: by likening life-without-parole sentences imposed on {juveniles to the death penalty itself. Life-without-parole terms, the Court wrote, “share some characteristies with death sentences that are shared by no other sentences.” 560 U.S., at —, 130 S.Ct,, at 2027. Imprisoning an offender until he dies alters the remainder of his life “by a forfeiture that is irrevocable.” Id. at 2455, 2466 (emphasis added). This last sentence is of great importance because life without parole is a death sentence. That sentence ‘means that the person will spend the remainder of their life within the confines of prison walls, will have no opportunity or reason to make themselves better, and will be unable to carry on normal relationships ‘with friends or family. Life without parole just seems easier to swallow for a portion of society today because we have not actually taken the life of another. But in reality wwe have taken their life because we have taken away everything that makes life worth living and the ultimate effect is the same. And make no mistake, this is just as true for an adult as it is for a juvenile. Whether the person is 18, 21, 30, or 50 years old the result is the same: one-hundred percent of their remaining life is spent behind bars CONTINUED: CU Ue Ts UNCONSTITUTIONAL OR UNFAIR? Adults, even those convicted of the most serious crime ~ capital murder — should be extended the same opportunity to present mitigating evidence at a sentencing stage of trial as every other defendant. CHALLENGING IN COURT So what is a defense attorney with a client charged with capital murder supposed to do when the state takes the death penalty off the table and the client faces an automatic life without parole sentence if convicted? Well, at least until the law changes, there are a number of arguments to make and ways to proceed. The traditional arguments, whether in reference to the Texas or U.S, Constitution, rest on Eighth Amendment and Fifth Amendment due process or due course of law grounds, In short, they assert that the denial of the punishment phase of trial violates due process, and an automatic life without parole sentence violates the Eighth Amendment. Unfortunately, these arguments have not been successful up to this point. It seems this, lack of success is due to the framing of the issue and lack of case law that supports the position, However, in June of 2012 the United States Supreme Court handed down a decision in Miller v. Alabama, which brings some hope for Texas defense attorneys. First off the arguments should still consist of the traditional Eighth and Fifth Amendment grounds, and they should still be asserted in terms of both Federal and State Constitutional violations. Case precedent tells us that the Fighth Amendment of the Federal Constitution does not guarantee the right to have a jury assess punishment, It is for this reason that additional emphasis should be put on violating the Texas Constitution, asserting that Texas provides more protection than the Federal Constitution, and Texas does so through its statutes and by practice. As stated, Texas is one of few states that permit a jury to assess punishment, and this is done in every other case except with this narrow class of defendants that we are discussing. Miller can now bbe used to bolster the Eighth Amendment argumenis, as well as the due course of law arguments, placing an emphasis on the reasoning of Miller @ wens In framing the due course of law argument, it should be noted that there is a balancing test that must be addressed. Due course of law includes procedural protection and substantive protection, and it is a direct constitutional restraint upon the substance of legislation This means that any act by the legislature that limits personal or property rights must be justified by resulting benefit to the public in order to be legitimate. In substantive due process cases, the courts balance the benefit to the public welfare resulting from the legislation against the severity of its effect on personal rights. Therefore, a law will be unconstitutional when it is arbitrary or unreasonable, which occurs when the social necessity the law is meant to serve is not sufficient justification of the restriction of liberty involved. It is essentially a rational basis test, which is usually ends up with the state winning the issue. However, here we have a law that denies a defendant a punishment phase of trial and the opportunity to present mitigation evidence to a fact finder. It also denies a fact finder the opportunity to hear mitigation evidence and make an individualized determination upon a proper punishment for the individual and the circumstances of the offense. In doing so, the legislature has essentially ‘made presumptions about a defendant convicted of a non-death capital case. It assumes that there is no possible fact that when considered would warrant a possibility of parole, even though the prosecutor has already conceded to weakness in the case by electing not to seek the death penalty. It does not seem that the legislature cannot point to a valid social necessity that ‘would justify the restriction of @ punishment phase in these situations. Another argument that is somewhat unique, and does not seem to have been used as of yet is that the current process by denying the sentencing phase of trial denies a defendant the right to an effective appeal with regard to future clemency or habeas corpus proceedings. Despite the mandatory punishment of life without parole, a full blown sentencing phase of the trial process should still be conducted. Although the mandatory sentence would render the sentencing hearing and verdict advisory, this is the only opportunity to put on the record the impressions and opinions of a jury or judge regarding an appropriate punishment. Creating a record of what the fact finder felt appropriate is best achieved at the time of trial when evidence and circumstances are fresh. This record is especially important in future clemency and habeas corpus motions and hearings. This is not altogether a foreign concept, as it is a practice in our own military court system. There is @ punishment phase of trial upon ever conviction in capital cases, and in this phase “the accused shall be given broad latitude to present evidence in extenuation and mitigation, Manual for Courts-Martial United States, 2012 Ed, Ch. 10 — Sentencing, Rule 1004(b)(3). Moreover, juries in the military courts, upon rendering a verdict for sentencing, may also make a recommendation for suspension or clemency of a portion or the entirety of that sentence. This recommendation is not binding, and therefore is only advisory, but it will be reviewed and considered by the Convening or higher Authority. Ch. 8, Sec. 3, para. 8-3-34 Military Judge's Benchbook. Without a sentencing hearing where aggravating and mitigating evidence is presented, there is nothing in the trial record to be reviewed and considered by a reviewing authority, and reviewing only the evidence presented at the guilt-innocence phase is not sufficient for an appropriate determination at punishment. Thus, a defendant is denied due course of law because he is denied the appellate review of his sentence because there is no record to be reviewed. Procedurally, an attorney facing this situation should first file a pre-trial motion to quash the indictment based on unconstitutionality of the statutes utilizing the arguments discussed above. The current state of affairs will likely lead to a denial of that motion, but this will preserve the issue for appeal. Next, in order to get the mitigation evidence into the appellate record a request should be made to the trial judge pre-trial that the defendant be given a punishment phase of trial even though it would be advisory. This motion will likely be denied, at which time an offer of proof or bill of review should be done during which all mitigation evidence should be entered onto the record. This seems to be the only way to get that evidence into the appellate record in its entirety. CONCLUSION Back in 2005 the legislature reasoned that three punishment options would be too complicated for juries to apply, and to come up with instructions for. As a result, we ended up with our current life without parole provision which has unnecessarily limited defendants” rights and created an unfair procedure. Moreover, it has taken away the discretion of a jury or other fact finder to assess an appropriate punishment, which is contrary to our belief in trial by jury and the current standards of our society. OF the 33 states that still maintain the death penalty, 12 of those states have three options for punishment: death, life without parole, and something less. That "something less” differs from state to state, with some states using a defined term of years and some using a life sentence with parole eligibility, among other methods, as that third alternative. In addition to those states, our military also employs three options for punishment in capital cases. Therefore, this scheme is not overly complicated, as it works in these other jurisdictions, and it provides for a much fairer process. But ultimately, it would put faith and trust back in the hands of our much cherished juries to assess an appropriate and proportioned punishment, which is something that is greatly valued about our judicial system, 1 was born and raised in Cypress, Texas just outside of Houston, and went to Texas Tech University where I received a bachelors degree in political science. ! then attended South Texas Callege of law and graduated in May 2012, and became licensed in November 2012. This articte began as a research project for a couple of attorneys who had encountered this issue, and evolved into an article after the issue proved to be 4 topic in need of discussion. I wrote this article while I was ‘an intern with the Harris County Public Defender's Office. strategy: Joseph W. Varela TOUGH LINEUP The great American game should be an unrelenting war of nerves. All defense lawyers have cases in which they must meet a worst-case combination of good prosecutors, experienced law enforcement witnesses, and glib experts, It’s natural for the defense lawyer, especially the younger one, to quail at the thought of facing a daunting prosecution team. Feelings of inadequacy creep in, and soon enough, the lawyer is on the way to mentally defeating himself, Let’s see how one man handled a tough lineup, Carl Hubbell was the National League’s starting pitcher in the 1934 All-Star game. He was a screwball’ pitcher for the New York Giants who had already established himself as one of the game's best hurlers. He was coming off a 1933 season in which he won 23 games ‘with an ERA of 1.66 and ten shutouts. He was pitching in the Giants’ home field, the Polo Grounds. Bottom of the first. Hubbell took the mound and promptly got into trouble. He gave up a leadoff base hit to Charlie Gehringer, who advanced to second on an error. Then he walked Heinic Manush. The game was only minutes old, and already Hubbell’s situation was, dire. Let’s pause the action and see why. Carl has two men on with nobody out, and he's facing the strongest lineup ever assembled in a ballpark, before or since. POWER MADE FLESH: FOXX, RUTH, GEHRIG. @ wens -Ty Cobb Babe Ruth. The “Sultan of Swat.” The greatest batsman who ever lived” His uppercut swing gave balls backspin and propelled them into high, slow, looping ares on their way out of ballparks and into the record books. He consistently’ poled it 500 feet or more, including some verified shots of at least 50 feet. Recent analysis of his career shows thet his achievements eclipse his legend.’ Although the Barnbino’s best years were behind him, and he had slowed considerably in the field, at the plate he could still bring crushing weight to bear Lou Gehrig. The “Iron Horse.” Among the most dangerous sluggers of all time. Not in the same class as Ruth for distance, he was nonetheless a devastating power hitter and was one of the greatest run-producers ever to play. In his 13 full seasons, he averaged 147 RBIs and 138 runs scored per year. Gehrig was in the middle of a phenomenal season. He dominated most hitting measures that year (.363 AVG, .706 SLG, with 49 home runs and 165 RBIs).* Jimmie Foxx. The “Beast.” He was affable and humble Off the field, but in the batter’s box Foxx struck dread into the souls of veteran pitchers. He stands right behind Ruth on the all-time list of distance hitters and no one has since equaled him for pure power.’ Like Ruth, he frequently hit well over the 500-foot mark; whereas ‘Ruth hit skyrockets, Foxx's flatter swing made baseballs look and sound as if they'd been shot from cannons. Gehrig was dominant in 1934, but Foxx had owned the "32 and ‘33 seasons. He went on to bat “only” 334 with, 44 homers in 1934 AI Simmons. “Bucketfoot Al” was named for his odd batting style. It worked for him. He had plenty of power (307 career homers). He batted a career-high .390 in ‘31. He had 11 straight seasons hitting better than .300 with 100 RBIs, During this stretch he was in the top ten in his league in RBIs every year. Few men have been better with runners in scoring position. Joe Cronin, “Mr, Clutch.” Although he was no distance hitter, his lack of fence-clearing power is deceptive, because he was frequently among the league leaders in extra-base hits, He had eight .300 ~ 100 seasons and had batted in 118 runs in 1933, good enough for fourth in the league. Cronin was a shrewd player and a natural leader ‘on the field, who later became a manager and president of the American League. Another man you don't want to see up with runners on. Or even with nobody on. Facing this terrible array of hitters, Hubbell might have succumbed to self-doubt. Instead, he settled down, got his screwball working, and struck out, in order, Ruth, Gehrig, Foxx, Simmons, and Cronin.* What's more, the only occasion in these ‘ive outs that! wood ever touched horschide was a Foxx foul tip. Hubbell’s performance is arguably the greatest ‘moment in All-Star Game history.” “But,” you say, “Carl Hubbell was one of the greatest pitchers ever to bestride a mound.’ Whereas I am but @ Joumeyman, just trying to get through a game without ‘being shelled.” Perhaps, but there is a sequel to the story. ‘That same year, after the season ended, a team of American stars’ went to Japan to play exhibition ‘games against Japanese players.’ ‘There was then no professional baseball in Japan, but the game was enormously popular, and numerous semipro and student leagues existed. Eiji Sawamura was a 17-year ‘old high school student. He was chosen to pitch for the All-Nippon team which toured with the Americans, In one game, Eiji fanned Gehringer, Ruth, Gehrig and Foxx in succession, In five innings he held America’s greatest to one run and struck out nine. Facing a tough lineup? Go to your best pitch, and let the sluggers worry about you. ‘To throw a screwball, Jef-handed pitcher like Hubbell ‘will rotate the ball clockwise, in the opposite direction of the more common curve or slider. The screwball breaks down and in on a left-handed batter. ‘Arguments can be made for Ty Cobb and Ted Williams, Dut by most measures, the Babe rules. His .690 career slugging percentage is untouchable. Bill Jenkinson, The Year Babe Ruth Hit 104 Home Runs. Carroll & Graf Publishers, 2007. All statistics are from 5. Mickey Mantle and Dick Allen later came close, For distance, Ruth and Foxx embarrass the modern steroid injectors. Mari MeGwire has hit a few just ver $00 feet, but Barry Bonds never has, not even in mile-high Denver. Ruth hit a ball 60 feet once, ina batting exhibition, Jenkinson, op. cit. Foxx hit one that far out of ‘Tokyo Stadium with Ruth and Gehrig as witnesses, ‘wagging their heads in disbelief, Mark R. Millikin, Jimmie Foxx: The Pride of Sudlersville, Rowman & Littlefield, 1998. Make no mistake, if Ruth and Foxx hhad access to modern training, nutrition and medicine, ‘and hit in today’s smaller parks, the results would beggar the imagination. See generally Bill Jenkinson, Baseball's Ultimate Power: Ranking the All-Time Greatest Distance Home Run Hitters. Lyons Press, 2010. ‘Video is available. An elderly Hubbell gives an interview at http://www. ‘The hitters radiate pregame aplomb at 0:32 but later are humbled ia hetp:/'v=OWNPH _E2Ck& feature-related. Gebrig and Foxx look foolish at hitp:/wwww. youtube. com/watch?v~23BZmZayiCM. In the 1986 All-Star Game, Fernando Valenzuela (another serewballer!) also struck out five consecutive hitters. ‘But they were hardly of the same ilk as Hubbell’s victims. ‘Hubbell pitched 20 innings in his two 1934 Series starts, He went 2-0 with 15 strikeouts and an ERA of 0.00. See Robert K. Fits, Banzai Babe Ruth: Baseball, Espionage, and Assassination during the 1934 Tour of Japan. University of Nebraska Press, 2012, Siz PA Many times a lawyer's business gets put on the streets when he posts a message on a listserv Although information put on a listserv is supposed to bbe confidential, it gets leaked to the wrong person. The HCCLA Ethics Committee created the hotline specifically for criminal defense lawyers with criminal law issues. The messages we get are confidential to the caller. We may use the question only as an example in an article with names and identifying information remaining confidential. Lawyers continue to talk about their cases in the elevators at courthouses across the state. Several times prosecutors have heard the conversation and reported what they heard. Recently in Houston after a bad day in court, a defendant was mouthing off and said “I think I will just go to Mexico.” A prosecutor ran and told the judge. Guess what? The defendant was put in custody and his bond ‘was revoked. In the modem world we live in today, people are emailing, tweeting/twittering, “ instant messaging, recording and posting, text videos and essentially living on Facebook. As soon as you take ‘2 case, your client should be advised and it should be ‘ordered mandatory to stop all these things. Remember what Racchorse Haynes says: “E” in cmail stands for evidence. Social media sites are a gold mine for evidence against your client and the complainant. Use it to your advantage if you can obtain the information ethically. They call it attorney-client privilege for a reason. Sitting around in a bar talking about your client's case is a too frequent event and should not be done. If ‘you need help on a case, get a mentor or call a lawyer friend. Remind them it is confidential. When you get hired or appointed on a case, ask your client to sign a waiver of the attorney-client privilege if he wants his mother, dad, wife, girlfriend, boyfriend, or any one else to have information about the case. Warn the clients not to discuss their case with cellmates. Recently a cellmate confessed to a capital murder to a man I was @ wen Leote tps LJ ~ Sra (aes representing. Since my client was facing a long trip to the federal prison, the information he got from his, buddy was passed on to a federal prosecutor and my client’s long trip turned into a short trip. There is always a danger of retribution so make sure you tell your client he or his family could be in danger. Yes, it does happen in the movies, but also in the real world, Wives, girlfriends and even mothers have ended up in the witness protection program for giving information to the government. ‘There has been much discussion about the pending legislation of reciprocal discovery. HCCLA is obviously against that. For the present, we need to remain vigilant as lawyers during plea negotiations to invoke the “keep your mouth shut” rule, Finding a nugget of helpful information in your client's case makes you want to shout it from the rooftop. Resist the urge. When you show your hand in good faith to @ prosecutor in the course of plea negotiations, 9 times out of 10 you have just done your client a disservice. The prosecutor then talks to the witnesses and “magically” their story changes or something is added to help them make their case. Ihave overheard prosecutors talk to an officer after Tin good faith tried to point out that the officer's report does not adequately state probable cause for a stop. The prosecutor would fell the officer what he needed to say to make sure there was probable cause and then tell me “Oh yeah, the officer forgot to put in report that your client ran’a stop sign.” Knowing when to keep your ‘mouth shut is one of the hardest lessons to learn. Down. the road, reciprocal discovery (if it passes) will very much change how we work. Use the tools that we have now while we have them. With the endless resources of the prosecution, our current appellate climate, and pending legislation twisting in the wind, there is no room for error when dealing with the prosecution. We have many cases, but those clients have but one life. Keep your mouth shut by Robert Pollan People used to get drunk and make phone calls, but now it is put in the Internet world for all to see. Please call the ethics hotline rather than letting the world know about your ethics question. You are running the risk of ‘the information being passed to the wrong person. When you hear someone say, “It is only Minor Surgery,” is ‘only minor if it is happening to someone else. All our cases are big because they are big to the people we are representing. Look back in your history books or talk to someone who has been in war and they will tell you about the posters in store windows during World War IL, There was always a danger of sabotage because of things said by people in the military or people working in the military field. An innocent conversation could ‘be disastrous. The poster said, “Loose Lips Might Sink Ships.” Call the hotline at 713-518-173: Area la Owned & Operated ea eka ae » Inclusion and/or exclusion zones ene ee » Custom schedule & range settings Ber acueinetes ie) a. Pear le) yea eM RCM »Court-ordered test schedule BES Cua ea By raaLy Buca ei} Call Shannon or Shaun LRU) cy id Cts e Dn Add Mean uel Ramat 1,29 IDENTIFICATION TESTIMONY In any criminal case the government must prove not only the essential elements of the offense or offenses charged, as hereafter defined, but must also prove, of course, the identity of the defendant as the perpetrator of the alleged offense or offenses. In evaluating the identification testimony of a witness you should consider all of the factors already mentioned concerning your assessment of the credibility of any witness in general, and should also consider, in particular, whether the witness had an adequate ‘opportunity to observe the person in question at the time or times about which the witness testified. You may consider, in that regard, such matters as the length of time the witness had to observe the person in question, the prevailing conditions at that time in terms, of visibility or distance and the like, and whether the witness had known or observed the person at earlier times. ‘You may also consider the circumstances surrounding the identification itself including, for example, the manner in which the defendant was presented to the witness for identification, and the length of time that elapsed between the incident in question and the next ‘opportunity the witness had to observe the defendant, If, after examining all of the testimony and evidence in the case, you have a reasonable doubt as to the identity of the defendant as the perpetrator of the offense charged, you must find the defendant not guilty. Barber-v. United States, 412 F-24.775 (Sth Cie. 1969), approveda Similar instruction. Ee ane, CLIENTS NEED AN SR22? Not sure where to send them? _WE HAVE THE ANSWERI!! gat Wipes Giemeeenn. cm com ia geet ete have a “significant wait re you recelve your SR-22, Ours instant * its fas (5 minutes or ess) + Non-Ouners Policy. oes terminate cent pay * Alley ard DPS pet copy vn mad + Inexpensive and Convenient + You have access tothe ineurance specials (over 80 years wort of combined insurance experience) || Our team is available to come to | J your next Bar luncheon or event! | a fp) || Wewill provide 1 hour of CLE at no cost to you. IDENTIFICATION. GW THE JURY CHAR NEW JERSEY PATTERN eae Revised 7/19/12 Effective 9/4/12 IDENTIFICATION: IN-COURT AND OUT-OF-COURT IDENTIFICATIONS (Defendant), as part of [his/her] general denial of guilt, contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that [he/she] is the person who committed the alleged offense. The burden of proving the identity of the person who committed the crime is upon the State. For you to find this defendant guilty, the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime, The defendant has neither the burden nor the duty to show that the crime, ifcommitted, ‘was committed by someone else, orto prove the identity of that other person. You must determine, therefore, not only whether the State has proven each and every element of the offense charged beyond a reasonable doubt, but also whether the State has proven beyond a reasonable doubt that this defendant is the person who committed it ‘The State has presented the testimony of [insert name of witness who identified defendant]. You will recall that this witness identified the defendant in court as the person who committed [insert the offenses) charged]. ‘The State also presented testimony that on a prior ‘occasion before this trial, this wimess identified the defendant as the person who committed this offense [these offenses]. According to the witness, [his/her] identification of the defendant was based upon the observations and perceptions that [he/she] made of the perpetrator at the time the offense was being committed, It is your function to determine whether the witness's identification of the defendant is reliable and believable, whether it is based on a mistake or for any reason is ip ti ‘You must decide whether it is Lemans evidence that this defendant is the ieee committed the offense[s] charged i ‘Eyewitness identification arined eee ee quel ‘carefully. Human beings have the ability to recogni: ‘other people from past experiences and to identify t ata later time, but research has shown that thei ‘that human memory is that a witness need only ts to remember happened. Memory is far more complex. The rcs remembering consists of three stages: acquisit perception of the original event; retention ~ the per Of time that passes between the event and the eve recollection of a piece of information; and retrievs stage during which a person recalls stored info At each of these slages, memory canbe affected b variety of factors? ee Relying on some of the research that has ae do Jil nsruct you on apeifie factors you should ons in this case in determining wi wit ‘identification evidence is reliable. ean ienifiation, you should consider the obs and perceptions on which the we ification a ' the witness’s ability to make those observations perceive events, and the circumstances under whi the identification was made. Although noi ‘appear more convincing than a witness's ‘identification of a perpetrator, you must crit analyze such wenimony. Such iden pee ‘mistaken. Therefo be analyzing such testimony, CONTINUED:: NEW JERSEY PATTERN CHARGE EXCERPT level of confidence, standing alone, may not be an indication of the reliability of the identification.* If you determine that the out-of-court identification is not reliable, you may still consider the witness’s in-court identification of the defendant if you find that it resulted from the witness’s observations or perceptions of the perpetrator during the commission of the offense, and that the identification is reliable. If you find that the in-court identification is the product of an impression gained at the out-of-court identification procedure, it should be afforded no weight. The ultimate question of the reliability of both the in-court and out-of-court identifications is for you to decide.” To decide whether the identification testimony is sufficiently reliable evidence to conclude that this defendant is the person who committed the offense(s} charged, you should evaluate the testimony of the ‘witness in light ofthe factors for considering credibility that I have already explained to you. In addition, you should consider the following factors that are related to the witness, the alleged perpetrator, and the criminal incident itself." In particular, you ‘should consider [choose appropriate factors from one through five |: (1) The Witness’s Opportunity to View and Degree of Attention: In evaluating the reliability of the identification, you should assess the witness's ‘opportunity to view the person who committed the ‘offense at the time of the offense and the witness’s degree of attention to the perpetrator at the time of the ‘offense, In making this assessment you should consider the following [choose appropriate factors from (a) through (g)} (a) Stress: Even under the best viewing conditions, high levels of stress can reduce an eyewitness's ability to recall and make an accurate identification. Therefore, you should consider a witness's level of stress and whether that stress, if any, distracted the “witness or made it harder for him or her to identify the perpetrator.” (6) Duration: The amount of time an eyewitness has to observe an event may affect the reliability of an identification, Although there is no minimum time required to make an accurate identification, a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure to the perpetrator. In addition, time estimates given by witnesses may not always be accurate because witnesses tend to think events lasted longer than they actually did." (©) Weapon Focus: You should consider whether the witness saw a weapon during the incident and the duration of the crime. The presence of a weapon can distract the witness and take the witness’s attention away from the perpetrator’ face. As a result, the presence of a visible weapon may reduce the reliability of a subsequent identification if the crime is of short duration. In considering this factor, you should take into account the duration of the erime because the longer the event, the ‘more time the witness may have to adapt to the presence of the weapon and focus on other details.” (d) Distance: A person is casier to identity when close by. The greater the distance between an eyewitness and a perpetrator, the higher the risk of a mistaken identification. In addition, a witness’s estimate of how far he or she was from the perpetrator may not always be accurate because people tend to have difficulty estimating distances.” (©) Lighting: Inadequate lighting can reduce the reliability of an identification. You should consider the lighting conditions present at the time of the alleged crime in this case." (0 Intoxication: The influence of alcohol can affect the reliability of an identification.12 ‘An identification made by a witness under the influence of a high level of alcohol at the time of the incident tends to be more unreliable than an identification by a witness who drank small amount of aleohol. (g) Disguises/Changed Appearance: The perpetrator’s use of a disguise can affect a witness's ability both to remember and identify the perpetrator. Disguises like hats, sunglasses, or masks can reduce the accuracy of an identification." Similarly, if facial features are altered between the time of the event and a later identification procedure, the accuracy of the identification may decrease."* @) Prior Description of Perpetrator: Another factor for your consideration is the accuracy of any description the witness gave after observing the incident and before identifying the perpetrator. Facts that may be relevant to this factor include whether the prior description matched the photo or person picked out later, whether the prior description provided details or was just general in nature, and whether the witness's testimony at trial was consistent with, or different from, his/her prior description of the perpetrator. [Charge if appropriate: You may also consider whether the witness did not identify the defendant ata prior identification procedure or chose a different suspect or filler.) (3) Confidence and Accuracy: You heard testimony that (insert name of witness) made a statement at the time he/she identified the defendant from a photo array/line-up concerning his/her level of certainty that the person/photograph he/she selected is in fact the person who committed the crime. As I explained earlier, a witness's level of confidence, standing alone, may not be an indication of the reliability of the identification." Although some research has found that highly confident witnesses are more likely to make accurate identifications, eyewitness confidence is generally an unreliable indicator of accuracy.” (4) Time Elapsed: Memories fade with time. As a result, delays between the commission of a crime and the time an identification is made can affect the reliability of the identification. In other words, the more time that passes, the greater the possibility that a witness's memory of a perpetrator will weaken, () Cross-Racial Effects: Research has shown that people may have greater difficulty in accurately identifying members of a different race." You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification. [The jury should also be charged on any other relevant factors in the case.] In evaluating the reliability of a witness's identification, you should also consider the circumstances under which any out-of-court identification was made, and whether it wwas the result of a suggestive procedure, In that regard, you may consider everything that was done or said by aw enforcement to the witness during the identification process, You should consider the following factors: [Charge if appropriate]:=* (1) Lineup Composition: A suspect should not stand out from other members of the lineup. The reason is, simple: an array of look-alikes forces witnesses to examine their memory. In addition, a biased lineup may inflate a witness’s confidence in the identification because the selection process seemed so easy to the witness.” It is, of course, for you to determine whether the composition of the lineup had any effect on the reliability of the identification, (2) Fillers: Lincups should include a number of possible choices for the witness, commonly referred to as “fillers.” The greater the number of choices, the more likely the procedure will serve as a reliable test of the witness’s memory. A minimum of six persons or photos should be included in the lineup. (3) Multiple Viewings: When a witness views the same person in more than one identification procedure, it can be difficult to know whether a later identification comes from the witness's memory of the actual, original event or of an earlier identification procedure. As a result, if a witness views an innocent suspect in multiple identification procedures, the risk of mistaken identification is increased. You may consider whether the witness viewed the suspect multiple times during the identification process and, if so, whether that affected the reliability of the identification.” ICHARGE IN EVERY CASE IN WHICH THERE IS A SHOWUP PROCEDURE] CONTINUED:: NEW JERSEY PATTERN CHARGE EXCERPT (@ Showups: In this case, the witness identified the defendant during a “showup,” that is, the defendant ‘was the only person shown to the witness at that time, Even though such a procedure is suggestive in nature, it is sometimes necessary for the police to conduct 4 “showup” or one-on-one identification procedure Although the benefits of a fresh memory may balance the risk of undue suggestion, showups conducted more ‘than two hours after an event present a heightened risk of misidentification. Also, police officers must instruct ‘witnesses that the person they are about to view may or ‘may not be the person who committed the crime and that they should not feel compelled to make an identification, In determining whether the identification is reliable or the result of an unduly suggestive procedure, you should consider how much time elapsed after the witness last saw the perpetrator, whether the appropriate instructions ‘were given to the witness, and all other circumstances surrounding the showup.* [CHARGE (a) and (b) IN EVERY CASE IN WHICH THE POLICE CONDUCT AN IDENTIFICATION LINEUP PROCEDURE]* In determining the reliability of the identification, ‘you should also consider whether the identification procedure was properly conducted. (a) Double-blind: A lineup administrator who knows which person or photo in the lineup is the suspect may intentionally or unintentionally convey that knowledge to the witness. That increases the chance that the witness will identify the suspect, even if the suspect is innocent. For that reason, whenever feasible, live lineups and photo arrays should bbe conducted by an officer who does not know the identity of the suspect.* [CHARGE IF BLIND ADMINISTRATOR 1S NOT USED] If a police officer who does not know the suspect's identity is not available, then the officer should not see the photos as the witness looks at them, In this case, itis, alleged that the person who presented the lineup knew the identity of the is also alleged that the police did/did not compensate for that by conducting a procedure in which the officer did not see the photos as, the witness looked at them, [RESUME MAIN CHARGE] ‘You may consider this factor when you consider the circumstances under which the identification was made, and when you evaluate the overall reliability of the identification.” (b) Instructions: You should consider what ‘was or what was not said to the witness prior to viewing a photo array.** Identification procedures should begin with instructions to the witness that the perpetrator may or may not be in the array and that the witness should not feel compelled to make an identification. The failure to give this instruction can increase the risk of misidentification. If you find that the police [did/did not] give this instruction to the witness, you may take this factor into aecount when evaluating the identification evidence.” ICHARGE IF FEEDBACK IS AN ISSUE IN THE CASE] (e) Feedback: Feedback occurs when police officers, or witnesses to an event who are not law enforcement officials, signal to eyewitnesses that they correctly identified the suspect. That confirmation may reduce doubt and engender or produce a false sense of confidence in a witness. Feedback may also falsely enhance a witness's recollection of the quality of his or her view of an event. It is for you to determine whether or not a witness’s recollection in this case was affected by feedback or whether the recollection instead reflects the witness’s accurate perception of the event.” [RESUME MAIN CHARGE] ‘You may consider whether the witness was exposed to ‘opinions, descriptions, or identifications given by other witnesses, to photographs or newspaper accounts, or to any other information or influence, that may have affected the independence of his/her identification." Such information can affect the independent nature and reliability of a witness's identification and inflate the witness's confidence in the identification. ‘You are also free to consider any other factor based ‘on the evidence or lack of evidence in the case that ‘you consider relevant to your determination whether ‘the identifications were reliable. Keep in mind that the presence of any single factor or combination of factor(s), however, is not an indication that a particular witness is incorrect. Instead, you may consider the factors that I have discussed as you assess all of the circumstances of the case, including all of the testimony and documentary evidence, in determining whether a particular identification made by a witness is accurate and thus ‘worthy of your consideration as you decide whether the Siate has met its burden to prove identification beyond a reasonable doubt. If you determine that the in-court or out-of-court identifications resulted from the ‘witness's observations or perceptions of the perpetrator during the commission of the offense, you may consider that evidence and decide how much’ weight to give it. If you instead decide that the idemtification(s) is/are the product of an impression gained at the in-court andlor out-of-court identification procedures, the identifications should be afforded no weight. The ultimate issue of the trustworthiness of an identification is for you to decide. If, after consideration of all of the evidence, you determine that the State has not proven beyond a reasonable doubt that (defendant) was the person who committed this offense [these offenses], then you must find him/her not guilty. If, on the other hand, after consideration of all of the evidence, you are convinced beyond a reasonable doubt that (defendant) was correctly identified, you will then consider whether the State has proven cach and every clement of the offense[s] charged beyond a reasonable doubt. 1 United States v. Wade, 388 U.S, 218, 28, 87 S.Ct, 1926, 1933, TRL, Bd. 2d 1149, 1158 (1967), State v. Groen, 86 NJ. 281, 291-93 (1981); State v. Edmonds, 293 NJ. Super. 113 (App. Div. 1996). State v. Henderson, 208 N.J.208, 245 (2011). 1d, at 245-46. ‘Slate v. Romero, 191 NJ. $9, 76 (2007). Wade, supra, 388 US. at 229.32, 241, 87 S.Ct at 1933-35, 1940, 18 L. Bd, 24 at 1158-60, 1465 (manner in which lineup cor other identification procedure conducted relevant t0 reliability of out-of cout identification and in-court ‘identification following out-of-court identification, and jury's credibility determinations). Henderson, supra, 208 NJ. at 247, | 6 7 1d, at 261-62. 8 1d at264, 9 1d. 21 262-63, 10 dd. a 264 12 Ir there is evidence of impairment by drugs or other substances, the charge can be moifid accordingly. 13 Henderion, supe, 208 NJ. 81265, 16 Id. at 254 (quoting Romero, supra, 191 N.J. at 76). 17 dd. at 253-55, 18 Id at 267 19 This instruction must be given whenever thee is a cross-racial ‘identification. I. at 299 (modifying State v. Cromedy, 158 Nu. 112, 132 (1999). 20 The following factors consist of “the system ... variables. for ‘whieh (the Cour} found scientific support thats generally accepted by experts.” Henderson, supra, 208 N.J at 298-99. 21 Id, at 251. 22 Ibid. 23 1d. at 255-56, If either “mugshot exposure” (no identifieation in {rst lineup/photo array, but late identification of someone ‘rom the firs array in Second lineup/photo array) or "mugshot commitment” selection of person in lineup who was identified in previous photo array) are part ofthe evidence, the jury should be instructed on the concepts implicated by those terms without using the word “mugshot.” See Model Jury Charge (Criminal) ‘00 “Identity-Police Photos.” 24 Henderson, supra, 208 N.J, 259-61, 25 “To holp jurors woigh that evidence, they must be told sbout relevant factors and their effect on reliability.” I. at 219 (asking the Criminal Pretics Committee and the Committee on Modal (Criminal Jury Charges to draft proposed revisions to this charge 28 ‘Soe State v. Cherry, 289 N.J. Super. $03 (App. Div. 1995. J “and address various system and estimator variables”). . 26 Id. 01 248-50. } 27 i 29 Henderson, supra, 208 NJ. at 250. 30 1d. at 253-55; sec also Slate v. Herrera, 187 NJ. 493, 09 (2006) (quoting State v. ‘817 P.2d 774, 781 (Utah 1991) 4 {Ching State v Long, 721.24 483,495 (Utah 1986) 31 State v. Chen, 208 NJ. 307 (2011). Things To Remember When You Deal With Prosecutors by Patrick McCann 4 They have a boss. 3 They remember who lies to them. Yes, in our rugged world of cranky and “It is one thing to have a sense of humor about unaccountable individualism, we sometimes lose policies that are perceived as unworkable, or Sight of the fact that the average prosecutor, about the often absurd facts of one's own case. unless one is dealing with the elected DA, [As an example, if one’s domestic violence client, answers to a boss. This means they, like the rest _on his fourth charge, angrily denounces one in the of us, have to, despite disagreement, do what holdover after the presentation of a they are told. It is useless to protest that this reasonable offer, one could reasonably share unfair, that this policy or that policy makes little or the prosecutor that the client is ‘ill disposed no sense, or has been inconsistently followed, or towards the offer, and at this moment, to. m is rooted in the deep need of the oppressive state Perhaps a better day would be next week?" with to keep its foot upon the downtrodden. If the boss some good humor and get the desired reset]. Itis says the prosecutor cannot reduce DWis, they another to shade the truth, even a little bit. The cannot do it. If one will cast one's mind back to _ prosecutors know we cannot share some things, that first job one may have had, the consequence and do not have to share others, and it simply of not doing what the boss asks is very simple - _better to demure than to misrepresent. one is fired. Keep this in mind, ‘s Gin Me: horse ths eae fou are Q Their boss has a boss. ayou,an to this morning. This means there is what is called, at least There will sometimes be a quiet moment in the euphemistically in the armed services, a"chain of busy dockets of all prosecutors where one can command". If the number three prosecutor has to. _relax and discuss the case and catch up without get approval for all plea offers in a certain time pressure. Those moments are rare and category or below a certain number of years, it _ fleeting, It is generally far better to schedule time means that one should be prepared to make the with them off docket to discuss your case. case for your deal to the higher ups. Theres arto However, if one needs to talk on an issue, keep in this, and often the timing is important, but this mind the fact that while you are only having one does not mean that the prosecutor who is asking _or three cases on the docket typically, they have you to wait until they *run it by chief*is stalling or _eighty, and you are indeed the latest in a long line hates your client - they may in fact recommend —_of whiny supplicants who seek some advantage. the deal. Yet that is their power-to recommend. f ‘Try to be the one person out of forty who treated the higher boss says no, then one has to wait until them politely, respectfully, and spoke candidly new facts emerge through one's diligent and [may the gods bless youl] QUICKLY so they investigation, or until the boss changes, if that is can grasp what you need. possible. @ woe De. have to answer to the complaining witness or their family. ‘We should always try and get to know our clients, and their families, because that is the way one understands how they got to this place. Now, if one believes that one’s client is innocent, or mentally ill, and that the harm the complaining witness suffered is fictional or perhaps forgivable, then do not worry so much about this. However, if, in the analogy posed above with the domestic violence client who seems, as they say “peacefulness challenged", one could imagine placing oneself into the shoes of a prosecutor who must tell the hospitalized long-suffering spouse of our client that he will be out next week, then perhaps we, as a group, might show a little less frustration with our state colleagues. A little tolerance goes along way. Prosecutors are underpaid and overworked. So are we, generally speaking, certainly so on appointed cases. However, | doubt many of us would trade our practice for the trial caseload of the average line prosecutor or the attached scrutiny by higher ups for failing to live up to the often completely arbitrary and unreasonable standards that elected DAs set. Certainly not for the public servant pay that they earn, which if one worked it out by hour would discourage most folks form going to law school at all. The reason | mention this is that simple acknowledging how busy they genuinely are and trying to provide the prosecutor with the reasons your client should prevail, in writing and via letter or email/fax, is often 2 wonderful way to show respect for their work while advancing your client's cause, The police lie to them, too. generally like cops, and | particularly like the fact that they volunteer to deal with the violent folks in the world so | do not have to do so. Nevertheless, whether out of laziness, ill temper, or actual planning, cops sometimes...skirt the actual facts, or omit some crucial ones, This is particularly true of narcotics cops because they lie for a living: tis important to remember that the prosecutor is only relying on what was told to him or her by the’ police, so if those facts are skewed, then it important to get them new facts, or prove to them the police are error. This means one has to work. One cannot jump up and down and protest "But they are fibbing" as this does little good and looks awkward in court. They are our colleagues, not our enemy. Yes, there are prosecutors who view you as enemies, as scurrilous protectors of the evil members of our society. Most do not, and you should not view them in a bad way either. There is no better person to try or work out a case with than an honest diligent prosecutor, and we should be encouraging the growth of such people, not harping upon the very human flaws in our colleagues, flaws which, ahem...most of us share, at least | do. Which leads me to number nine. You will never regret something you do not say. My grandfather taught me this many years ago. Having grown up among extraordinarily unforgiving people with long memories, (wl perfectly describes Boston Irish Catholics) he early adopted a view that sometimes, one should just shut up and bite one's tongue. This surprisingly worked, because the next time one approached the person one had to work with, one was able to get to the issue, and not wade through the muck of an unnecessary past argument. This works with a prosecutor who is having a bad day, or is under stress because they just lost a trial on a child abuser, or got reamed by their boss for listening to the last thing you asked them to do. Try it, really - just shut up. You will be amazed at your new ability to work with people. 10 Judges are often the common enemy. We all pray to whatever gods we worship for judges to be wise and just and thoughtful ‘Apparently sometimes the answer to ones prayer is ‘no’, However, this works both ways, and often it is to the advantage of justice, and your client, to seek some other solution, with the help of an understanding prosecutor. You know when you are in such a situation. Help the prosecutor see it too. 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