You are on page 1of 32
eB) stm B) a CO eC Re) ie rv) as CaaS SSR UCC eo PA Advanced Criminal Law Seminar :: Co-sponsored by TCDLA/HCCLA Any questions? eater URS Tel eee ee) Pr ala An inheritance SCAU TEC Os Nice Le toa TUM . ne N ae ean SHOW Hosted by Todd Dupont Thursday Nights @ 8pm ethics ae A eee 713°518°1738 AT&T U-verse (Channel 89) Statted by HCCLA Past Presidents Lye a ope MAM ol cola Molla a s me} =| o} ao] C7) —_ a o =| ° a o cD) a 163 215% 24:: 26:: 29:: 31:: +A Word from our New President by Todd Dupont : Winning Warriors : HCCLA News Round Up 11s: Welcome New Members! 11: HECLA Strike Force 12:: Dupont and Dupont:14th Annual Crawfish Boil 13: Homerun for the Defense 14: Training Day: Criminal Law 101 HCCLA Banquet Cool Hand Luke ‘by Robert Pelton Generalizing the Disconnect Defense ‘by Joseph Varela Putting Some Bite Into New Article 38.20 ‘A Proposed Jury Charge On Eyewitness Identification Issues by Cheri Duncan Immigration Checklists ‘by Pat McCann HCCLA Extras ‘Ad Rates New Member Application HEROES & TAKING CHANCES 1 knew it would it be a long night. No matter how a parent tries to spin certain situations toa child, broccoli still castes weird, a toy for $7.00 at Target means $7.00 Gad not $29.99), and long banguets, with « bunch of stuffy lawyers, are boring (even if you take a limousine to get there). Even with free Shisley Temples. Even with iPhones. Fen with Robb Fickman making fanny faces and speaking silly. Bus, it had to happen. This nighe ‘was not their night; it was their facher's night. I was to be sworn in as che 4grd Presidene of che Harris County Criminal Lawyers Association. In a big. building Downtown. Wich a room full of people my children did not know. Heck, ie was a school night. “Several hours,” ‘was the reply to the repeated questioning of how long the banquet would be? Sometimes in life, though, people have co do things they don'e want co do, This includes children. And on this nighe, chis would apply to my daughters. { was a lieele apprehensive about the evening. I know my daughters well. They are my best friends. I know when they are hungry. I know when they are sleepy. I know ‘when they are happy and sad, And, most importantly, Tknow when they are bored (the constant reminding of this fact only exacerbates this). They weathered it, through. Bazely...but they made ie While 1 had previously surmised char my life was eo change the moment thar HCCLA President Chris Tritico handed the organization over to me (with the permission of the members of HCCLA), my life would unexpectedly change in another way, too © weoeoen a word from our new president 8 eld Dont It changed right before my hand-picked Keynote speaker, Gerry Goldstein, was the take the stage Michael Morton and Anthony Graves had just spoken. Iwas burdened with humility and remorseful of the fact that these two gentlemen had collectively spent 43, years in prison at the hands of rogue prosecutors. While George Parnham was recapturing a lifetime of ‘true achievements in the criminal justice community, stole a few minutes to sit down next to my daughters at my table. The night was flying by, and the banquet ‘was almost done. I hadn't even eaten, had barely sat down, and I was praying that the unusual combination of my mother and her husband, Gerry Goldstein, Honorable David Mendoza and his daughter, and my children was somehow working cohesively. Each of these people are important to me, but I was the only common denominator, and I been absent most of the evening. I had barely even seen my guests, it seemed. Our of nowhere, it happened. My nine year old daughter, Natalie Paige Dupont, leaned over to me and asked: “Daddy, can I say something?” Without pause, I replied: “OF course, baby.” To which she replied: “Do you have a pen?” Reaching in my coat pocket, I grabbed my peo, as Natalie began looking ‘on the table for something to write on. She found the back of a program. She began co write, hunching over hher masterpiece as her curious father tried to look on. think she even turned her shoulder co me, further concealing her manuscript. She was done in a few minuces, When George finished, she made a bee-line towards the podium. This litele giel is all Dupone, I thought co myself, smiling. As I got her a chair co stand on, so that she could reach the microphone, she waved me off, Istepped co the side She spoke: € Hello. Thomas Barker Dupont Il is basically my hero. ‘And tolots of other people he isahero. He helps innocent ‘people who didn't commie the crime. I don’t think you realize that he is a very nice person, who is my hero. ‘And, I hope he is yours. This is my new motto: I'm not a lawyer...I'm not perfect...just don’t think about those ups and downs that you've had in your life. This is my last ‘two words: take chances.?? ‘Wow, I thought. Honestly, that was all I could think Wow. A dead-on bull's eye, if I have ever seen one. This nine year old, in short, succinct order (while making. me swell with pride), not only touched my heart in that ‘moment, but also challenged my consciousness. She had posed two interesting questions for me to contemplate san adult, as their father, and as a lawyer: Who are my heroes, and should I "take chances?” Having weathered some really rough seas over the last few years, I already knew the answers to these questions, though I was glad that she had reminded me to re-think about them., through my daughter Natalie, I pose the ‘same questions co you: Who are your heroes? Will you take chances? Heroes give us someone to look up to. Someone to emulate. Someone to model our lives after. ‘Taking chances is riskier. Scarier. Often taking chances: urs us way outside our comfort zone. I submie 0 ‘you to take a moment today to pause and reflect upon. who is your hero? If chey are still alive, call ehem oF go see them immediately, and thank them and kiss their forehead. Go on a walk with them, co dinner wich them, or drink a beer with them. You will be happy you did. They are, after all, your hero for a reason. Remind them. Life is too short and fleeting. Regarding taking chances: well...this is bit more difficult, Tcan's offer much here other than, pethaps, to share a quick story Twas trying a small drug case, where the narcotics were found in a cup holder in a car that my client was driving, but that did not belong to him. He had only been in the car a few hours on the day he was arrested. The state had huge knowledge and affirmative links problems, but still wanted co forge ahead. My client had fortitude to stand in the ring. At the end of the trial, o show the jury what I thought about ¢his| prosecution, with the help of my friend, Craig Still, I vowed to close my case the following morning wich one sentence closing argument. After the state reserved its right co close, I stood up, walked straight to the jury, and said: "No person on this planet, much less in Harris County, should be convicted of a felony with as weak as the evidence is in this case.” I turned around, walked back to my chair, and sat down, nor saying another word, Talk about unconventional. Was this risky? You're damn right ie was. Was chis scary? Absolutely. After an hour of deliberation, the jury acquitted my client, and after exhaling, I largely convinced myself that I would likely never do that again. But, one never knows..."never" is such a permanent word. Took forward to driving the bus this year. I will give HCCLA my absolute bese, and I hope to somehow be the face and mouthpiece of such a large and diverse ‘group of wonderful human beings. I didn't wane co tell you...but I will: You are my heros. Now: get out there and take some chances. You might be pleasantly surprised co find what life has in store for you and your: clients when you do. vmeorewn @) L BONDS EXPERTS 113-227-496 a wf 1417 CONGRESS ST HOUSTON, TK. 77002 _: © moss ‘Tyler Flood consistently blows us away with his results! He won a Not Guilty on a DWI-2nd in Court 4 fora client already on DWI probation in Travis County. He also got 1.13 Blood test suppressed in Court 8 after redacting all the "untruths” contained in the PC Affidavit for the blood warrant, And let’s not forget about the hung jury on a 19 Breath test in MoCo Court 5 where he exposed the Technical Supervisor for violating DPS Guidelines and Rand Mintzer and Carmen Roe von a MTS in the 208th, successfully suppressing cocaine and an AK-47 leading to the dismissal of PCS and Felon in Possession ofa Weapon charges. Congrats! Asa side note, it became evident during the hearing that the ADA was less than truthful about an informant being involved in the case. William McLellan fought hard and won a NG in Court, 10 on an Assault-V case where CW alleged punching and choking with bad injuries. Great job! ‘The [4th COA granted relief to Allen Isbell’s client for fraudulent possession in a credit card skimming operation, Props to Carlos Rodriguez for preserving error in the trial court. After a fong recusal battle Mark Thiessen finally wins ‘sweet two-word verdict for his client in Court 2. Recusal was ultimately denied after Mark testified the judge was ‘overheard coaching the State ex parte. Mark scratched his ‘original closing and made this plea tothe jury instead: “Help ‘me. I'm playing on a field where the referee is wearing the ater team’s jersey.” Congrats to this brave warrior! Congratulations to David Ryan for his victory in Fort ‘Bend CC2 on a complex Deadly Conduct case. After two days of trial dealing with extremely hostile witnesses, jury came back with two magic words. David credits Roy ‘Wygant, Fox Curl, Son Tran and his second chair Annie Scott for their assistance. Congrats to Joseph Ruiz. who scored a NG in Court 14. Exhausted client was charged with 2nd DWI in 2 years while coming home after a long road trip and accidentally clipped the curb during the stop. Great job Joseph! Joe Varela and Mike Driver went to battle on a first degree murder trial in the 232nd for a young girl who admitted to being high on PCP at the time of the shooting. Jury convicted but only gave 15 years TDC. State’s last offer was 40, and jury was asked to start punishment dcliberations ‘at 30, Joe did an excellent job crossing firearms and forensic experts. He credits Matt Sharp and expert Sean O’Connell for their invaluable assistance in prepping the client for testimony. Congrats to Ryan Deck for his victory on a supposed slam-dunk-for-the-State assault case in Williamson County. Tough case in a tough town. Big win for this warrior! Brett Podolsky and Matt Sharp spared their 70-year-old client accused of setting fire to Gallery Furniture in 2009 from a trial or prison time in exchange for civil commitment, The DA’s push for trial went up in smoke after they set the case for a mental competency hearing and got the state's expert to admit their client, who had debilitating brain tumor at the time, was unable to sustain ‘mental clarity throughout the trial. This was the result of a lot of hard work and quick thinking on the part of Brett and Matt, Well done, guy: Congrats to Matt DeLuca for prevailing against DPS with a rare Ist COA reversal on an ALR case. The ‘Administrative Judge and County Civil Court Judge both got it wrong, but Matt never gave up and persuaded the appeals court to find no reasonable suspicion for the DWI stop. Great job Matt Mark Thiessen wins a NG in Court 9 on a .098 blood draw. State got the blood in evidence but after Mark's methodical — cross-examination Judge Wilkerson, suppressed it, instructing the jury not to consider it due to its unreliability. Mark pulied this off with no expert witnesses, just good old-fashioned cross! Paul Schiffer won a MT hearing on a school dope search in Court 8. Veteran cop testified to no level of suspicion of any criminal activity, but the school VP (who searched the student’s backpack and discovered weed) testified to odor, giggling and eyes. Paul framed the case beautifully and won the suppression. Congrats to Paul and his client! vases (7) Congratulations to Jimmy Ortiz, Jr. for his victory in a sexual assault of a child case. CW made a delayed outcry after she was caught shoplifting 4 years after the alleged incident. We hear Jimmy’s Voir dire and cross were pure genius! Jay Cohen and Dorian Cotlar’s client was involved in a minor accident in a parking lot after tailgating at a Texans game and charged with DWL On the witness stand, client admitted to being drunk and lying to the police about who was driving, but after Dorian crossed the witnesses the jury returned a mere FOUR minutes later with « Not Guilty! Dorian credits Rudy Varges for his outstanding investigative work Congratulations to Robert Pelton, HOCLA Past President and 2012 Recipient of the College of the State Bar of Texas Professionalism Award. Pelton eamed this award for his initiative in creating ethies hotlines for both TCDLA and HCCLA members. The College also awarded our own Brian Wice with a distinguished Standing Ovation award for contribution and excellence in CLE. Their dedication to helping their fellow defense lawyers makes them worthy candidates for these awards. Congrats gentlemen! Steve Shellist takes home a quick NG on a DWI in Brazoria County. Client was incoherent on video and admitted to taking Lunestra and Xanax. Steve successfully argued a novel “sleep driving” defense and the jury returned minutes later. Great job Steve! Jed Silverman and Mark Thiessen scored a NG verdict, on a 0.14 DWI breath test in Court 1. What a team these two make! Congratulations to Casie Gotro for winning habeas relief on an old dope case for an elderly offender who is now home with his family. Casie thanks Pat McCann for his assistance. ‘im Sullivan won an Aggravated Sexual Assault ofa Child case in the 314th Juvenile District Court. After careful cross-examination and concluding the CW was more likely being molested by a different relative, the jury retumed a not guilty after only 10 minutes of deliberation, © wen Mark Kratovil scored a huge victory in Vasquez v. State. In a published opinion, the 14th Court of Appeals reversed the defendant's conviction and life sentence for capital murder after police officers, who had questioned the defendant for 8 hours, procured incriminating, and non-Mirandized, admissions from him outside the interrogation room. Only after getting him to talk off-camera did the officers put him on camera, Mirandize him, and question him regarding what he had said before entering the room. Kudos to James Stafford for urging the suppression issue and preserving the error. With only one month to prepare, Stan Schneider and Casie Gotro paired up to win a Not Guilty on a murder charge in the 180th. Congratulations to these true warriors in action! Shaw Clifford won a MTS in the 3Sist based on the Jardines SCOTUS opinion on warrantless dog sniff’ at the front door. He credits David Ryan for mentoring him Congrats to Joseph Rutz who scored a 15-minute NG in Court 7 on a prostitution case. Mark Thiessen takes another NG out of Court 9 on DWI-2nd. Way to score another homerun for the defense! Good things happen when you properly investigate, prepare, and set cases for trial. Good things are happening with Nate Tarlow. First, he wins a nolle on a .11 DWI in Court 5 where the client almost took probation the day before trial. Then one week later Nate got a NG in Court 8 on a DWI with 3 open containers of alcohol at the time of arrest. Great work, Nate! Jen Gaut takes home a sweet nolle after a MTS was granted in the 178th, Congrats! Congratulations to Jani Maselli Wood for getting a life sentence on an aggravated kidnapping overtumed based on IAC (failure to investigate and present mitigation evidence at punishment phase of a non-capital case) Sarah Wood scored an appellate victory in State v. Jefferson. The 14th COA upheld Shawna Reagin’s suppression of the confession in a murder case on the motion of Chuck Noll. The trial court found the defendant was in custody for purposes of Miranda even, though officers repeatedly told him he was not under arrest, However, he was pulled over and taken from his vehicle at gunpoint, handcuffed, placed in the back of a cop car, and driven 28 miles in the middle of the night to a secure facility where he was questioned and never Mirandized. Great job by Chuck Noll at trial and Sarah Wood on appeal! Congrats to Brian Warren who grabbed a 7-minute Not Guilty on a theft case in Court 9. He crossed the loss prevention officer for 3 hours and the emotional ADA couldn't compare. Great job, Brian! In his first tial as lead defense counsel Jason Luong wins a NG in Montgomery County! Client was acquitted on all, counts of Assault-FM, Interference with 911, and Unlawful Restraint. He credits co-counsel Amanda Webb for her expert handling of the complainant and local intel of the MoCo courts, GRACE Never another sleeping lawyer... What ean you do to hel Visit our website at www.gracelaw org. Casey Kiernan and Phil Gommels saved a teenager’s life in a capital murder trial. They were able to convince the jury that he lacked the specific intent to cause the death of his robbery victim, and after four hours of deliberating, the jury agreed and returned with a guilty verdict of murder, instead of capital murder. At the very least, the young defendant will now be eligible for parole one day to breathe free air. Congrats to Joe Gonyea and Jimmy Ardoin for their 4th Circuit Reversal! The defendant was sentenced to 60 years for his involvement in a fraud scheme of over $100 million. While the appeal was pending, CNBC featured the case in its series "American Greed.” The Fourth Circuit reversed all of the money laundering convictions and remanded for a new sentencing hearing. Impressive! Congrats to Eric Benavides on a DWI NG in Court 1. Even though the officer claimed client swerved across 3 lanes of traffic, nearly caused 2 accidents, failed all SFSTs, and acted belligerent the entire time, Erie stumped him on cross and the jury found multiple reasonable doubts! meas (@) winning warriors ‘Tom Lewis scored a rare victory when the 14th COA acquitted his client of engaging in organized criminal activity and remanded for a new punishment hearing on the lesser of theft. This involved theft of copper from an abandoned apartment complex. The issue on appeal was whether there was intent to participate in a continuous course of eriminal activity. The court correctly found that the evidence only showed a single theft. Congrats to Brennen Dunn and co-pilot Jen Gaut for their NG in Montgomery County on a sexual assault case. An all white jury walked a black defendant with a white complaining witness. Brennen credits his victory in part to his mentor Alvin Nunnery. Brian Roberts scored a NG on an Assault-Choking in the 174th, His client was facing 25-Life with murder and burglary enhancements. Brian's request for a lesser of, Class A Assault was denied so the jury followed the law and acquitted. Congrats! Afier2 days of trial Jed Silverman won a MTS leading to ‘a dismissal on a dope case in Court 3. He did a great job outing the lying cops! Unlawful search was based on lack of credibility of the detaining officer's story about seeing 1 drug transaction in the vehicle. Tyler Flood got the first not guilty on a felony boating blood draw case in Montgomery County - ever! The 359th was the state's playground. His motion to suppress the 18 blood evidence was denied even though it was taken without a warrant and in violation of the recent McNeely SCOTUS case. Before they even closed, Warren Diepraam informed Fox 26 about the case, and they had his interview and the SFST video on the news by Spm - while the jury was deliberating. After the verdict, Tyler’s client called Fox 26 to inform them of the NOT guilty verdict, and they took the video down from the internet. Tyler did a great job fighting the state and the media all the way! Congrats to Tucker Graves who won a NG in spite of ADAs mocking him for taking a>1g case to trial where the drugs were found in his client’s purse along with marijuana which she allegedly admitted to having, @ wens Brent Mayr walked his client out of Federal Court in Austin after being acquitted of all counts on a publicized Mexican cartel/moncy laundering/Thoroughbred racchorse trial. Very impressive to get a rare NG in a federal drug related conspiracy trial. It was a long 3-week trial but @ grateful hug from his client made it all worthwhile, Brent gives thanks to co-counsels John Parras, Mike DeGeurin, Guy Womack, Andres Sanchez-Ross, and Richard Esper of EI Paso, all of whom did phenomenal jobs fighting for their clients in this difficult case. Vivian King wins an amazing 30-minute NG in a difficult rape trial in the 208th, with Antoy Bell assisting After a hung jury and then a guilty verdict, Joaquin inez finally got a not guilty on appeal for a difficult client on a Class C case (making a firearm accessible to a child). A great result at last! 20 years ago Jani Maselli Wood's client got a life sentence when trial counsel failed to put on any evidence at punishment. Jani and second chair Dedric Brown filed 1 writ. The trial court did not recommend relief, but it accidentally signed the proposed findings from the defense (oops). The State then corrected the mistake by having the trial court sign its findings instead, But the original signed defense findings were sent up to the CCA and the CCA, thinking the trial court had recommended relief, rubber stamped it (oops again). All partics immediately alerted the CCA of the confusion and the State asked the CCA to rescind its mistaken order and deny relief as the trial court intended. In @ very unusual turn of events, Judge Per Curiam of the CCA re-examined the entire case on its own motion and granted relief - for real this time! HCCLA Welcomes Sle Susan Ashloy Ca Katherine A. Cathey ord ey ed Peter de Leet The Following New Members: Beer uel te SE ee Oe ai ee A cua ‘Maverick Ray eRe Oo See eR CUCU Rau) od Beeman Sd ead py SSCs Ua ul ed Ds CMCC Le Lal Eric Hopkins a Aad ey Dred Peay Joseph F Cae a crystal Wiley Sea Cs eg en Ces Coed HICCLA STRIKE FORCE “To sin by silence when they should protest makes cowards of men. ”? Abraham Lincoln Robb Fickman, known as the “Czar of Provocation,” led the charge to Jackson County with more than 50 HCCLA members behind him to protest charges of Aggravated Perjury against a local public defender in Edna, Texas. The judge postponed the trial until May 29. By then Fickman had more than 70 HCCLA members ready to move swiftly into action until Gerry Goldstein and Cynthia Orr announced they had secured a dismissal of all charges. Even though a second trip wasn’t necessary after all, the defense bar was united and stronger than ever. Without hesitation they were prepared to drive hundreds of miles from home to support someone they didn’t even know-all in the name of Justice. They showed great courage, compassion, and most importantly, their willingness to stand up to injustices wherever they may be, however far away. Tet The Good Fimes Roll at Dupont & Dupont’ dl 14" Annual Crawfish Qoit ae ? (€0-sponsored by HCCLA and various contributors) i Saturday, Mey 8 — Tferty Station 1200 pm anti? 2101 Washingon Ave rawfish Boil HCCLA New Member Drive Every year our favorite Cajun lawyer, HCCLA President Todd Dupont, hosts an annual crawfish boil to celebrate his birthday and the beginning of ‘summer. This year HCCLA and many other generous ‘sponsors joined the festivities at Liberty Station on Saturday, May 18. HCCLA also held its annual new membership drive and welcomed many new faces to the defense bar. The Dupont family came from all ‘over to liven up the party. As they say in Louisiana, laissez les bons temps rouler or “let the good times roll”! Everyone had a rolling good time with the live Zydeco band, good friends and good eats - with free all-you-can-eat crawfish, corn and potatoes. We hope to see yall at the next one! @ wens On Sunday, April 28 HCCLA hosted a softball game as ‘our members (The No Bills) played the Harris County District Attorney's Office (The Indictments) on the baseball field at the High School for Law Enforcement and Criminal Justice. Rick DeToto coached the de- fense team to victory with a score of 16-11! Itwas such an enjoyable afternoon for all the players and fans in the bleachers that both teams have agreed to make this an annual event. The DA's Office is looking to even the score next year! Judges Mike Schneider, Brad Hart, Marc Brown, Susan Brown and Paul Goodhart came out to support the teams. Rick DeToto, Paul Doyle, Adam Brown and Willie Van Buren graciously sponsored a catered lunch from Ragin Cajun for the players after the game. (0° HCCLA No Bille v. HCDAO Indictments | stil Sunday, April 28 | 1:00 pm igh School or Law Enforcement | snd Criminal Justice mre pei Sr ue ro art a or roe Some of the finest criminal defense lawyers in the nation practice right here in Harris County. Sixteen of HCCLA’s brightest, most talented trial lawyers shared their knowledge and expertise at our first two-day seminar, covering every stage of trial ~ from pretrial investigation to sentencing. The seminar was held on May 30-31 at the Jury Assembly Plaza in downtown Houston where nearly 200 local defense lawyers attended. They learned practical tips from the best in their fields on how to provide the most effective representation to their clients facing criminal charges in Harris County. The course included 14.0 CLE credit hours, including 2.0 hours in ethics. Harris County Criminal Lowyers Assocation: ‘Special thanks to all of the speakers for lending their valuable time, insights and materials to. this informative training seminar. Special thanks also to Course Director Carmen Roe and Executive Director Christina Appelt who worked tirelessly to put this CLE together. Thanks also to Steve Halpert, Todd Dupont, Chris Tritico, and the CLE Committee: Grant Scheiner, Rand Mintzer, Paul Kennedy and Mark Thiessen. : CRIMINAL LAW 101 May 30-31, 2013 14.0 CLE (ind. 2.0 ethics) Jury Assembly Plaza 1201 Congress Street Houston, Texas 77002 Sponsored by the! Ee eelke ekaetncnwekeks decane @ wens Thursday, May 30 if 4 oug Murphy Brian Wice Randy Schaffer Grant Scheiner Hon a Excl Prasarvaton Practelng Harts Couny ‘Cages Nauta the Expo tere “rape for te Unwary Kent Schaffer Mark Thiessen. Robert Fickman ‘Mark Bennett ile Cros "i! Tactics reseal Sinple les f= Evarnnaton and Teehniques Investigation ‘oto JurySeacton Friday, May 31 Nicole DeBorde Danny Easterling i ‘Tyrone Moncriffe Robert Pelton Puniehmant ater Dab UNfergotable Opening Eos and Sentencing PreTral Staomensé clesng Arguments Boot Cam Grant Scheiner Mac Secrest Chris Downey Carmen Roe ‘fing Evience ‘imal “hry Charge and ators fr ad impeachmort Detonee argng stuns ‘Now Ta vwcoaton George D. Famham Richard *Racehorse” Haynes Lifetime Achievement ‘A past president of HCCLA ond our 2002 recipient of Lawyer Of he Yeor, George Parham hos spent hs entre legal career of more than 35 years zecioudy defending the rights of the ‘accused. A seasoned ‘rial lawyer he has saved counties ves, from lenathy prson sentences and death row. He hos ako been the lead defense counsel for some high-prafle cents, including Clara Harts, and most notably, Andrea Yates. In 2002. he slerted the Yates Chicken Memorial Fund (named in honor Cf her chitren) fo rae awareness and! funding for women's ‘mentalheath education, Since then, he has become cleading advocate for women suffering ftom mental health nesses. @ wens Usa K. Andrews Presidents Award Ale foully dug jab testing equioment and methods were, ‘discovered in he Haris County Probation Department, member sa Andrews began investigating the matter. Her findings were thoroughly documented and reported to authories. Exposing, the poor fab condiions drectly resuted in on immediate suspension of defendant probation revocations that were ‘based on dug test resus. Thanks to Ms. Andrews! efforts, hundreds of defendants were able fo compiele their probafions without doing any jal ime. Jani Masel Lawyer ofthe Year Taking the case in 2007, jus! two days before her cfen'’s schedUed execution date, Jani Maself undertook her pro bono, ‘@ppeal on @ death row inmate's cose. Working with other CGtlomeys and norprofis, she resecrched this frog shaken soby cose tretesty for fve years binging new scientific evidence {o ight and prepang a succesful wit. Her hard work paid off, when the Cout of Ciminal Aoped fnaly granted habeas rel to her cfent and orered « new tol Ms. Mosel. now an, ‘ssslant pubic defender in the Appelate Divson of the Hons ‘County Public Defenders Office, s Board Certtied in Cirinal ‘Appalate Law by the Texas Board of Legal Speciation. She ‘so serves onthe Boards of Decors for HCCLA,TCDLA, and the. tmocence Project of fexos. Thomas D. Moran Sharon Levine Unsung Hero Nomed posthumousy afierone of HCCLA's tue unsung heroes, Tom Moron eamed this aword 0s he auiely spent the last ve yeas fighting overseas fo free c manin en infemationd trounal in Rwanda, Hs cient was charged with rine counts of wor ‘cfmes, ranging from genocide and crimes against humanity 10, rope. His cfent, Prosper Mugroneza, was acquitted on al counts, cectior this yoor. Affor spending almost 10 yeors in prison he walked out « free man. Mr. Mugianeza proudy presented the ‘award fo his lawyer and fiend via video from o United Notions Safehouse in Tarzaria. Tom's unwavering commitment to his Cents, and his dedication and seltsocice fo the Wor Ciimes, ttidbin both Europe and Aca, cre on inspiration that made im tne clear choice fortis year’s awerd. casino (@) avid M. Ryan Mentor ofthe Yeor HCCLA's Second Chair Program has been largely successful becouse of is utstonding mentors the Fst Chais who have. generously volunteered their me, advice, and tal asktance fo younger les experienced lawyers. Dovid Ryan was voted cs the best and most valued mentor ths year. Aways avalable 40 answer questions, go over tid stategies or provide sound Insight ond advice, hi commitment to ther success as lawyers, has helped them goin he invaluable troining and experience they would otherwise not get. (Darmererner ‘Carmen Roe ‘Member of he Yeor ln recognition of her outstanding service or achievements 10, the detense bar, Camen Roe receles this dstinct honor for ihe second yearin crow. She has served as HCCLA Secretary, New ‘Members Chaiman, CLE Drecior and now President-lect. Ms. Roe has worked dligently fo increase membeship and HCCLA's vbity in the community - whether organizing socio ‘events, maintcining HCCLA profes on Facebook and Titer, ‘or appearing on Reasonable Doubt. She has worked on the: Defender and has taken the time to send flaal arangements, fo any member who was sick, hospitalized, or passed away. However, her most Impartant conirution to HECLA this year ‘was her work on the monthly CLE courses and! seminars where. she consistent ned up the highest qualty speckers on current topics n criminal law. ‘Anthony Graves Torch of liberty ‘Anthony Graves spent 18 years of his ie in prison, mosty on, death row, for murders he dcn't commit. He sunived wo. execution dates before his conviction was frally overtumed. in 2006 when the Fifth Crcut concluded that the prosecutor hod elcited pefred fesimony and intenifonaly withheld evidence fovoraéle fo the delense. Anthony Graves wos finaly exonerated by DNA evidence in 2010. Since gaining his freedom, Mr. Graves hos been outspoken on the deplorcble, conditions of softary confinement in Texas ptsons and on the: death penally. He has witlen aries and given interviews — testing before the US. Senate ond in the Texas Legisaiure and, ing for prison reforms and a repedi of the death penaty ‘Micha! Moron Torch of Uberly Michael Morton served 25 years of « life sentence for his wife's murder, He was exonerated in 2011 by DNA tesing when it wos discovered that his prosecutor deliberately withheld exculpatory evidence curing the tid. His prosecuiors misconduct wos so egregious that he now faces criminal charges. Michael Maxton and sever others led the way in changhg the way discovery evidence is handled in Texas. Mr. Morton himsot ade pasionate pleas fo the Texas Legliature fo pass what js now known as the Michas! Marion Act, which now requis prosecuios io um over al relevant evidence fo defense lawyers casio (@ 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 Interlock An Automobile Ignition Interlock Provider Sa? John Burns David Girard 609 Houston Avenue 713.223.4424 Houston, Texas 77007 Aa COOL HAND LUKE Cool Hand Luke is a 1967 American prison drama film starring Paul Newman in the title role as Lucas “Luke” Jackson, a prisoner in a Florida prison camp who refuses to submit to the system and observe the established pecking order among prisoners. Set in the 1940s, Luke is arrested and sentenced to prison for 2 years after vandalizing parking meters. Luke’s resistance to the pecking order runs afoul with the prisoners’ leader, Dragtine, Luke takes a beating from Dragline and eventually eams his respect and that of the other prisoners. Luke’s sense of humor and independence inspires the other prisoners. After winning @ game of poker against Dragline with a hand worth nothing, Luke comments that “sometimes nothing can be a real cool hand,” to which Dragline bestows on him the nickname “Cool Hand Luke.” ‘Afier getting the news that his mother passed away, Luke escapes from prison but is eventually recaptured. Luke ‘manages to escape the prison a few more times after that but each time is recaptured and punished. Upon his return, the warden, also referred to as the Captain, would deliver his warning speech to the inmates that began with the line, What we have here is a failure to communicate.” Each time, Luke’s punishment entailed digging a grave-sized hole in the camp yard, filling it back in, and then being beaten by the guards. Luke eventually caves in and begs for mercy causing the prisoners to lose respect for him. On his final attempt to escape, Luke steals a prison dump truck with Dragline. They travel to a church but police eventually catch up to them. Dragline surrenders peacefully but Luke makes a bold move and mimics the Captain's famous line of “What we've got here is a failure to communicate.” He is immediately shot in the neck and dies; however, his actions immediately restore his reputation among the prisoners. By ROBERT PELTON ‘When you get hired or appointed on a case remember you are the one the client and family are looking to for saving the day. Failure to communicate is one of the top reasons clients become unhappy and file grievances. Good communication, even if the case has, bad results, will save you a lot of misery. Spending nights and weekends worrying about a grievance, writ or worse ean be minimized if you simply talk to your client ‘Try to find an ally who is related to or who knows your client well that can be trusted. Get a waiver from your client so you can talk to that person. Engage them as, your ally So they can spend hours talking about the case ‘with the client, You can then spend your time lawyering and not babysitting. Clients have put their life in your hhands and look to you to help them. Make it clear from the beginning that you cannot perform miracles and do not be overly optimistic. Many lawyers get the check and then never talk to their etient. A short phone call or jail visit can go a long way to ease a client’s fear. Be hhonest with them. Send letters to client even if itis to say hello, hope you're ok, and we are working on your case. Many times clients come in and you ask who their prior lawyer was and they don’t remember. You want them to remember you because they can send you more business and tell all their friends and neighbors how great you are. Return your phone calls. costo (@) COOL HAND LUKE A friendly “hello, how are you doing” goes a long way. Be polite bu firm and don't fet your client see you hugging or laughing with the prosecutor. Remember who brought ‘you to the dance. Being friends with a DA may be great ‘but notin front ofa client. If you were accused of a crime and hired a lawyer, would you want to sec them together in a bar, restaurant or playing baseball together? I don’t think most people would. You are fighting a battle for your client and the odds are always against you. Remember your oath is to your client, not to the judge or prosecutor. Look and act like a lawyer, carry a fie even if you have a magazine in it ora brieftase when you go to court, Reach out for help if you need it ona case. Get involved with HCCLA. Get on the list serve, and use that resource AFTER you do your independent research. Remember the old adage: it is far better to keep your mouth shut and appear a fool than to open your mouth and remove all doubt. With all the technology now, save important emails or ‘keep a pad by your bed so when you wake up at midnight with a good idea you can write it down, and document the content of client calls. If it isn’t written down and documented in your file and with your staff, recreating your recollection for a grievance or lawsuit is less enjoyable than an IRS audit. Right now there are several members of this organization ‘who are very ill, in hospitals, rehabs, nursing homes, going to AA and NA meetings, going through a divorce, and dealing with the loss of a loved one. Reach out to those people and make an offer to help. Many lawyers in Houston have died and it is comforting to know that members of HCCLA are helping to resolve their cases. ‘No one can get out of here alive so keep your affairs in order to protect your clients as well as your loved ones. left behind. Effective documentation will save you in front of the grievance committee as well as your estate against a lawsuit after you are long gone. @ wens If a lawyer, be it defense lawyer, prosecutor or judge, violates the canon of ethics you are duty bound to report it. Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct states that: (a) Except as permitted in paragraphs (c) or (4), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority. (b) Except as permitted in paragraphs (c) or (@), @ lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judges fitness for office shall inform the appropriate authority. (©) A lawyer having knowledge or suspecting that another lawyer or judge whose conduct the lawyer is required to report pursuant to paragraphs (a) or (b) of this Rule is impaired by chemical dependency on alcohol or drugs or bby mental illness may report that person to an approved peer assistance program rather than to an appropriate disciplinary authority. If a lawyer elects that option, the lawyer's report to the approved peer assistance program shail disclose any disciplinary violations thatthe reporting, lawyer would otherwise have to disclose to the authorities, referred to in paragraphs (a) and (b). (@) This rule does not require disclosure of knowledge or information otherwise protected as confidential information: (I)by Rule 1.05 or (2)by any statutory or regulatory provisions applicable to the counseling activities of the approved peer assistance program. oF-4 ethics hotline 713°518°173 Do not have ex-parte communications about a case with the judge. Ex parte communications are too often par for the course on the “who is going to trial first on Monday?” game. Ex parte communications are not only improper from a judge to a lawyer, but that extends to their coordinators and staff. We all know it goes on. The prosecutor “magically” knows on Friday which cases are going to trial on Monday, leaving defense counsel working the weekend away for trial, after being told, “we don’t know what is going, just be ready.” Keep track of these violations. You have a duty to report it. When you need help on a judicial complaint, reach out for the HCCLA members who handle those matters. COMMUNICATION BY BLOGGING. Most lawyers" blogs are considered to be lawyer advertising and must be approved by the State Bar Advertising Committee at (800) 566-4616. (1) Take responsibility not just for your own words, but for the comments you allow on your blog, (2). Label your tolerance level for abusive comments. (3) Consider climinating anonymous comments. (4) Don’t feed the trolls. (5) Take the conversation offline, and talk directly, or find an intermediary who can do so. (©) Ifyou know someone who is behaving badly, tell them so, (7) Don’t say anything online that you wouldn't say in person. There have been lawsuits filed and a judgment rendered because of comments on 4 blog. Humans have feelings ‘and much damage tan be and has been done because of unprofessional and demeaning messages posted on blogs. If you blog, remember you may be subject to the Texas Disciplinary Rules and also itis just bad karma when you allow bad things to be put into cyberspace. If you carry bad karma it will get you when you least expect it. Clients who have been mistreated, poorly represented, and laughed at usually do not stay locked up forever. ‘When chained or locked up, a person has plenty of time to think about retribution. Many find Jesus in prison but many find the devil. That is why many spouses, friends, and ever mothers of defendants end up in the witness protection program. Like Luke Jackson found out, failure to communicate can be disastrous. Many lawyers find themselves with a ‘writ or sitting in front of a grievance committee hearing them say as the Captain did, “ehat we've got here is a failure to communicate.” Not sure where to send them? ‘Contact Christie Guess at ‘512-784-0085 | ‘+ Mostonline websites have asignifcant wait™ before you receive your SR-22. Ours instant! + tis fast minutes less) + Non-Owners Policy. (doesnt terminate current policy) + Attomey and DPS get a copy vi eral + Inexpensive and Convenient + You have access to the insurance specialists (over 80 years worth of combined insurance experience) ‘Our team is available to come to your next Bar luncheon or event! We will provide 1 hour of CLE at no cost to you. By Joseph W. Varela Mark Thiessen argues for what he calls a “disconnect defense” in DWI cases.' Under his theory, if the client's words and actions appear normal in a scene or police station video, a high breath test sets up a conflict between what the jury can sec, and what they have to find to believe the test. The jury is either predisposed, or during voir dire can be conditioned, to expect that a high test should be accompanied by obvious signs of intoxication in the video. If the visual evidence does ‘not comport with their expectations based on the test number, they should prefer to believe their eyes rather than the test. There is a logical corollary. According to Thiessen, “The higher the test, the stronger your defense.” Ifthe video looks normal, higher test numbers are preferred. For example, if the video looks normal and the test number is .09, the State can explain the client's performance; but the test reads .235, the disconnect is not as easily explained, and jury will be inclined to think there is something wrong with the test. The defense lawyer will argue that a person with such a high reading should be “obviously drunk” on video, and if he is not, the test should be discounted. This defense should be planned for, and set up through proper voir dire and eross. Thiessen concerns himself solely with intoxication. 1 believe that we can generalize his disconnect defense into a normative theory of evidentiary dissonance and apply it to other types of criminal cases to create reasonable doubt. We can use the disconnect defense in any kind of case, in which the testimony does not ‘comport with appearance. Consider a domestic assault case. The police report contains a synopsis of the complainant's statement at the scene, in which she avers that the client, a strongly-built male, struck her several times in the face with @ closed fist. In the 911 call she gives dramatic details of the attack and its effect on her.” She claims that this assault caused her great pain, and she even thinks she blacked out for a moment. But photos taken of the complainant at the scene reveal no visible signs of particular injuries, such as black eyes, bruises or a bloody nose. In this situation, there is @ disconnect between what the complainant says happened, and the jury's expectations of what the photos should show. Indeed, with such photographs before the jury, the more furid and detailed the testimony and the greater the violence claimed, the more marked the disconnect. The jury will. simply expect visible injury from a severe beating. Here the lawyer should even consider allowing admission of inadmissible evidence such as hearsay, if it assists the disconnect defense. At the end of it all, the defense lawyer will argue that there was no assault at all, or that the complainant is not credible when describing the assault, because the photos don't li. Another fruitful area for the disconnect defense is in child sexual assault cases. Children who make outery are typically videotaped during the CAC interview. Furthermore, the CAC website lists a number of changes in behavior that can be indirect signs of child sexual abuse: “Depression, anxiety, anger, loss of appetite, withdrawal from normal activities, substance abuse, self-mutilation, fear of certain places or people, —— a j bed-wetting, night sweats, nightmares and thoughts of suicide.” “Experts” who have not examined the complainant will testify in the most general terms that these signs can be relied on to show that the complainant has been abused; the inference is that therefore the complainant is telling the truth. A disconnect defense can be built here as well. Let us suppose that there is no evidence of any change in the complainant's behavior, and that in the CAC video, the complainant appears relatively calm and matter-of-fact. Under Thiessen's theory, the more illicit sex the complainant claims, the better. With a claim of only a couple of acts of touching, or a single act of penetration, the State can explain the complainant's relative equanimity; but if nearly nightly assaults over a long time period are claimed, it becomes harder for the State to counter the jury's expectations of how a severely abused child should present. This is even more true when additional extraordinary details are claimed, such as “kinky” sex acts or threats. In all kinds of criminal cases, the alert defense lawyer should watch for opportunities to apply the “disconnect defense.” “Undermining the Breath Test: Building the Disconnect Defense,” The Defender, Fall 2011. ia 911 calls will almost certainly be admissible, see, ©. Spencer y State, 162 8.W.34 877 (Tex. App.—Houston [14th Dist] 2005, pe. ref") (911 call was not “testimonial” {for Confrontation Clause analysis). Atleast one “expert.” Dr, Lawrence Thompson, has testified that any change in u child's behavior, or no change at all, can ‘bea sign of sexual ebuse, Seo State of Texas ve, Pablo ‘Mendoza Martinez, cause no, 1190504, 174th District Court, Harris County, Texas. A transcript is available. Brest Owned & Operated Se eno » Inclusion and/or exclusion zones eae aes ete eee ee aero re a »No phone line required J BD Ue ae Cr) Nera oR »Court-ordered test schedule Seo Bena Pars} Beaune Te ay Call Shannon or Shaun Pe Muu) ty i Oe ee Deed Peet @ woe Putting Some Bite Into New Article 38.20: A Proposed Jury Charge On Eyewitness Identification Issues by Cheri Duncan, Assistant Public Defender “Appellate Division, Hatris County Public Defender’ Office ‘The winter edition of The Defender included an article suggesting that Texas courts should start giving jury instructions about eyewitness identifications. See “It’s Time for a Texas Jury Instruction on Eyewitness Identification Evidence,” The Defender, Winter, 2012. This article offers a proposed charge to request, plus the steps for laying a foundation for your request. Other draft jury instructions may be developed as we see what happens at trial under the now law. ‘The proposed charg You are instructed that a witness? identification of an accused may be used in evidence against the accused if the procedure for obtaining that identification was not ‘unduly suggestive and did not pose a very substantial risk cof misidentification. Our law requires law enforcement agencies to have policies for administering photograph and live lincup identification procedures that are based on: (A) credible field, academic, or laboratory research on eyewitness memory; (B) relevant policies, guidelines, and best practices designed to reduce erroneous eyewitness identifications and to enhance the reliability and objectivity of eyewitness identifications; and (© other relevant information as appropriate. ‘Therefore, bearing in mind these instructions, if you find from the evidence that, on the occasion in question, Officer X] obtained [witness'] identification of the accused by [list each fact issue about the way the ID procedure was conducted that could be unduly Suggestive), oF if you have a reasonable doubt thereof, then you will disregard any and all evidence obtained as 4 result of the identification procedure and you will not consider such evidence for any purpose whatsoever. However, if you find beyond [Officer X] did not [list each fact issue ‘you may consider the evidence obtained as a result of the identification.” See TEX. CODE CRIM. PROC. ART, 38.23(a) and 38.20§5(b); Holmes ». State, 248 SW.3d 194, 199-200 (Tex. Crim. App. 2008). ‘This instruction is pattemed after an instruction approved in Madden v, State, 242 8.W.34 504, 508-n, 7 (Tex. Crim. App, 2007). Madden did not involve eyewitness TD, but it did address the appropriate language for a jury instruction under the Texas exclusionary rule, TEX. CODE CRIM. PROC, ANN. ART. 38.23, ‘This proposed charge goes farther than the charge in Madden's footnote 7: it quotes from Art. 38.20’s general requirements for ‘eyewitness identification policies. But you should argue that ‘these additional criteria are appropriate because they are based. ‘on statute, and are necessary to give jurors enough background in, ‘the law for them to be able to resolve the factual issues raised by ‘a particular identification procedure, Laying the foundation for an eyewitness ID charge: This is the main point to remember: in Texes, the court cannot sive general instructions about the unreliability of certain types of evidence, unlike the federal courts oF many other state cours ‘You're entitled toa jury charge ony ityou can create a fact issue Evidence to justify an instruction “can derive from any source, ‘no matter whether strong, weak, contradicted, unimpeached, ot ‘unbelievable. But it must rise & factual dispute about how the evidence was obtained. Where the issue raised by the evidence «doesnot involve controverted historical facts, but only the proper application of the law to undisputed facts, tat issu is properly Ieftto the determination ofthe tal cour.” Robinson v State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012Xnteral quotations ‘omitted, So star by following thes steps: 1} Move to suppress the out-of-court identification, move to suppress any in-court identification based on the bad out-of-court TD, and get a suppression hearing, At the hearing, put on evidence of each problem with the identification procedure. This includes every issue you would have raised pre-Article 38.20 — anything that made the identification unduly suggestive (in a photo array, for example, the client's photo stands out from the filler phoios; in a live line-up, for example, the client is substantially taller than the fillers, ec.). Address as many of the Biggers factors as possible, See Neil. Biggers, 409 US. 188, 201 (1972) 2} tthe hearing, put on evidenee, ifany, that the offices did not, follow their department's policies under Art. 38.20. Also offer ‘evidence of any ways that the identification procedure did not follow the minimum standards itemized in Art. 38.20. 3} If you lose the motion to suppress, object each time the ‘eyewitness ID is mentioned during wil, or got a running ‘objection. Also object if the State asks the same witness to make ‘an in-court identification ofthe defendant, 4} In front of the jury, put on evidence of every way the ID procedure was suggestive, and every way the eyewitness’ identification was unreliable, just as you do currently. Offer evidence thatthe officers did not comply with their depariment's policies, or wit the minimum standards in Art. 38.20. Consider ‘offering an expert to testify onthe unreliability of eyewitness I. See Tillman v. State, 354 S.W.34 425 (Tex. Crim, App. 2011). '5} Whether you win or lose the suppression motion, request {jury charge similar tothe one proposed above, and get aruling on, ‘your request. ‘To be entitled to an Art, 38.23(a) instruction, Madden says you must show: 1. am issue of historical fact about how the evidence was ‘obtained was raised infront ofthe jury; ‘the fact was contested by affirmative evidence at rial; the fact is material to the constitutional or statutory violation thet the defendant has identified as rendering. the particular evidence inadmissible. “When a disputed, material issue of fact is successfully raised, the terms of [Art 38.23(a)] are mandatory, and the jury must be instructed accordingly.” Robinson, 377 S.W.3d at 719. ‘Legal support for your request for a jury charge: ‘Here's a refresher on the new Texas eyewitness ID law, to help ‘you develop your argument for a jury charge. During the 2011 Session, the Texas Legislature took a step toward addressing the unreliability of eyewitness testimony when it passed the law that became TEX. CODE CRIM. PROC. ANN. ART. 38.20. The law requires law enforcement agencies to adopt written procedures for photographic and live lineups performed after September 1, 2012, according to certain guidelines. For more detailed information about the law, sce Scott Ehlers’ articles in the Spring, 2012 and Winter 2012 editions of The Defender. At first reading, Article 38.20 appears to lack any real teeth, because: 1, Compliance with the law's requirements is not a condition precedent to the admissibility of an out-of-court identification; and 2. Failure to comply with those requirements does not bar ‘the admission of eyewitness identification testimony. ‘See Art, 38.20 Sec. 5. However, a quick comparison of Art 38.20 ‘with the version originally filed as HB 215 puts some bite back. into the law. Appearances tothe contrary, most of the protections jn Art, 38.23(a) are available under Art. 38.20, though they ‘would not have been if HB 215 hed passed without amendment. ‘To understand this, it helps to take a closer look at Art. 38.23 itself. The Court of Criminal Appeals recognizes that Art. 38.23 addresses two issues. “This Court has long held that there is a definite distinction between the admissibility of evidence under Article 38.23 (which is decided solely by the trial judge) and the Juy’s role under Article 38.23 in considering evidence that has, ‘been admitted.” Holmes v, State, 248 S.W.3d 194, 199 (Tex. Crim. App. 2008). Art. 38.23 provides these protections to defendants: 1. exclusion of evidence obtained in violation of the Texas \ Constitution or laws; 2, excosion of evidence obiained in volaton ofthe US. Constitution or ls, 3. jury instructions o disregard evidence obtained in Violation of the provisions ofthe article riose @) CONTINUED :: ‘Now, take a look at Art. 38.20(0). The bold type highlights language that was added by amendment to the original bill, HB 215: (b) Notwithstanding Article 38.23 as that article relates to a ‘violation of a state statute, a failure to conduct a photograph or live lineup identification procedure in ‘substantial compliance with the model policy or any other policy adopted under this article or with the minimum requirements of this article does not bar the admission of ‘eyewitness identification testimony in the cours ofthis tate ‘Compare this to section (b) in HB 214 as fled (b) Nowwithstanding Article 38.23, a failure to conduct a ‘photograph or live lineup identification procedure in ‘substantial compliance with the model policy adopted ‘under this article does not bar the admission of eyewitness identification testimony in the courts ofthis state. ‘The original HB 215 said that none ofthe exclusionary language of Art. 38.23 would apply to eyewitness idenification issues, ‘The amended version that became law, however, was much more narrowly tailored: "Notwithstanding Article 38.23 as that article relates to a violation of a state statute ..." While it helps to be ware of what the ID statute took out from Art. 38.23 (hint: you cean't get an instruction to disregard on the grounds that an eyewitness ID procedure violated provisions of Art. 38.20), even more important to focus on what the statute left in: 1. US. and Texas Consttutionality challenges; and (more on-point to this discussion) 2. The entire second paragraph of Art 38.23(@): “In any ‘ease where the legal evidence raises an issue hereunder, ‘the jury shall be instructed that fit believes, or has a reasonable doubt, tht the evidence was obtained in violation ‘of the provisions ofthis Article, then and in such event, the Jury shall disregard any such evidence so obtained.” ‘Bottom line: the new statute does not change current case law on ‘whether a particular identification is unconstitutional under the US. or Texas constitutions. You should continue to raise such ‘issues via suppression hearings and/or tral objections. However, once the trial court admits evidence of an eyewitness identification, then the new law gives you a basis for requesting an exclusionary instruction under Art. 38.23 To get it, you need to create a fact issue that affects the legality of that identification. This can be done with expert testimony, or cross-examination that elicits a damaging ‘admission from the law enforcement witness, @ wens Putting Some Bite Into New Article 38.20: A Proposed Jury Charge On Eyewitness Identification Issues ‘A defendant who does not object when illegally-obtained evidence is offered “waives his rightto complain on appeal that the evidence was, as a matter of law, illegally obtained under Article 38:23. But that same defendant may stil request and receive a jury instruction under Article 38.23 if the evidence raises a contested factual issue that is ‘material to the lawfulness of obtaining the evidence. ‘These are two distinct issues: one is a legal question of admissibility for the judge and the other is a question of disputed fact for the jury’s consideration and resolution.” Holmes, 248 S.W 34 at 196 (emphasis added). ‘A final thought: no Harris County judge is likely 10 give ‘you a jury instruction on eyewitness identification issues. But now we have the Legislature's acknowledgement that eyewitness identification can be unreliable, thanks to Art 38.20. We have the Court of Criminal Appeals? acknowledgment of the problems with eyewitness ID in Tillman. And we have the Supreme Court’s recently renewed focus on the issue in Perry v. New Hampshire, 132. Ct. 716 (2012). Right now, only the jury is let in the dark. If jurors are to weigh the evidence when eyewitness ID is involved, they need to be educated about the problems with that evidence, If we start making requests for jury charges now, we eventually may be able to persuade the Court of Criminal Appeals to approve some form of charge that gives jurors at least some of the information they need to weigh eyewitness evidence. We'll never get anything as useful as the comprehensive instructions adopted in New Jersey (see State v. Henderson, 27 A.34 872 (NJ. 2011), bbut we may get something. If we don’t ask, we won't get anything, ‘Thanks to Soot Ehlers, Legal and Policy Analyst fr the Harris County Public Defenders Office, for his assistance withthe Tegslatve history ‘of Ar, 3820. Thanks, also, to Karen Newirh, Eyewitness Kdntfieaton Litigation Fellow fr the Innocence Project, Inc, New York City, New ‘York, for her input during the development ofthis proposed charge. +MMrGRATION CHECKLISTS by Pat Mean. fain net an Pmimigration atterne My checklivt ir designed far the typical erirninal atlerney whe ir straggling te ensure his or her client gett tennd advice from semeene elbe regarding whether and haw a potential ples or trial of 0 errninal case with affect their states here in the United States. This checkbit dees nat ubyttute far having & 9009 inmigration abterneg ent rusts em speed dink, nar Dees it attempt te eaplain haw mang pase things can ge badly for gonr client with either seme status, wo stAPa, or a petentinl states. Fp taped iro) ye ck ly ee tell Fe Tod chan tfc nt theca wade agen ei Fmt tect po gre cit be fot et ice areas nen a leper-tike climate for people accused of these erinnes in the states, Departation it Ukely preferable ta mandatory registration far life. We can debate the efficacy fennel exci pore othe Mare Su, take this checklit, please send out eritiqnes cand suggestions far improving Ht te either pice een renee for actual cancelation, research, and Piscussions with gor client This pa starting point, at 0 finish ne. Ase, for Haris County folks, Keep tm mind Trait Boh off mate among Secralin smotel she St ansrner questions or appear and concull om Hmensensitive basis, a resenree net all counts have. Coed buck! Tae ocremen (33) CRIMINAL IMMIGRATION CHECKLIST Ascertain directly whether the client has status. If client is citizen then stop; if client has Legal Permanent Residency [LPR] or refugee status or visa in standards then proceed to 2 A. If no status then proceed to 2 B. Retain or obtain funds for immigration attorney who can provide opinion as to specific sentencing recommendations for this case and have them explained in written format in client's native language. A Ifeliont has status be certain they understand effect on status [i.e loss of status or renewal] if plea taken, B. If client has no status but may be eligible for status per immigration rules or lawyers opinion, initiate status request to forestall deportation if need be with aid of immigration attorney. if unable to initiate or obtsin funds for Immigration advice seek advice from free sources such as immigration clinics at law schools or law professors, or {rom refugee clinics such as Catholic charities. N Ensure client signs written acknowledgment of explanation and place in file. Discuss pros and cons of trial vs. a plea given the immigration consequences. Plea may still be 2. good deal even if deportation is likely [Sex offenders are one such category]. Explain to client that the plea is a formal procedure, and cover what the questions from the judge will be, ‘and what the client's responses should be if a plea is to be taken. Have client acknowledge in writing that they wish to go to trial or take plea despite possible immigration consequences, and that this is their decision even with the advice regarding immigration issues. If client does not read then have it read to him by family member or interpreter and have them also acknowledge it Propose in writing to ADA any special conditions of plea that you wish them to consider to avoid unduly harsh collateral consequences. ‘Set for plea if that is client's decision; if trial be sure to file motions in limine and prepare voir dire on immigration issues for jurors. File motions prohibiting judge from failing to consider probation or lesser sentences or imposing unduly harsh conditions if going to the bench for punishment, (Examples of limine and jury issues: Prohibit mention of status by state, whether the jury could consider a lesser punishment for someone they think is here without status, how they feel about need for an interpreter, etc Make coffee, which, while not legally required, is always helpful. ts] on ao Ul PW Here are some links for resources for one's own research http: http: /Anwwfd.orginavigation/select-topics-in-criminal-defense/immigration-consequences-of-convietion/ subsections/obligation-to-advise-on-immigration-consequences: http:/www! @ mone CU ty Huu MEMBERSHIP APPLICATION Applicant: Firm Name: Telephone number: Fax: Mailing address: Email address: Website: Date admitted to pract ‘Would you like to join the HCCLA listserv ‘Type of membership (dues) _— Regular membership ($150*) — Public Defender (State/Federal) ($75*) — New eriminal defense lawyer (within two years of ‘beginning criminal defense practice) (S75*) ___ Senior Member ($75*) = Paralegal Member (S50*) — Student ($25) Expected graduation date: Date Signature of applicant Endorsement |, a member in good standing of HCCLA, believe this ipplicant to be a person of professional competency, integrity and good moral character. The applicant is actively engaged in the defense of criminal cases. (For paralegals, this applicant is employed by member in good standing) Date Signature of endorsing member PRINTED NAME OF ENDORSING Mi BER Mail this application to: HCCLA P.O, Box 924523 Houston, Texas 77292-4523 TF paid between April | and December 31, this amount constitutes payment of dues until May 31 of the following year. Dues paid between January I and Mareh 31 are half the listed amount and cover membership until May 31 of the same year. SUMMER 2013 THE DEFENDER RESORTED STANDARD PO Box 924: ‘NOUsTON, TEA Houston x 7t1292- 4523 LACKWOO EDD BLACKWOOD ® LICENSE 74432 713-222-BAIL (2245) Houston’s Oldest COS NEM EREINTO Bail Bonding Company HOUSTON, TEXAS 77002 : Serving Houston, WE ALSO PROVIDE COURTROOM ASSISTANCE Harris County, é All Texas counties, and ’ Nationwide bail bonds