Consequences, what consequences?

Alfred Brown spent a decade of his life on death row in Texas before he was exonerated by phone records found in a detective's garage in 2013. What makes this tale more chilling is the fact that the prosecutor who sought the death penalty in Mr. Brown's 2005 trial for the murder of Houston Police Officer Charles Clark and store clerk Alfredia Jones was made aware of the phone records prior to trial.

The prosecutor, Dan Rizzo, is now retired.

In 2003, then HPD Officer Breck McDaniel sent Mr. Rizzo an e-mail regarding the telephone records. But neither the e-mail nor the records were produced prior to trial.

After the discovery of the records, the Harris County District Attorney's Office claimed that the failure of the prosecutor to turn over the phone records was inadvertent.

The phone records were important because they corroborated Mr. Brown's alibi that he was at his girlfriend's house at the time of the slayings.

The e-mail to Mr. Rizzo was discovered after Mr. Brown filed suit seeking compensation for his time behind bars as the result of a wrongful conviction. The State of Texas denied him compensation because prosecutors didn't declare him to be actually innocent.

Mr. Rizzo signed an affidavit in 2008 stating that he had not withheld any of the requested phone records from the defense.

The Harris County Criminal Lawyers' Association (of which I am a member) has sent Harris County District Attorney Kim Ogg a letter requesting that a special prosecutor investigate whether or not Mr. Rizzo committed any criminal violations in his failure to produce the records and subsequent denials of their existence.

Some defense attorneys have suggested that Mr. Rizzo face a charge of attempted murder - though former District Attorney Johnny Holmes and Northeastern University law professor Daniel Medwed think that attempted murder would be a stretch.

Well, let's look at that for a bit, shall we?

According to Section 19.02(b) of the Texas Penal Code, the murder statute:

(b) A person commits an offense if he:(1) intentionally or knowingly causes the death of an individual;(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual;  or(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

The death certificate of an executed inmate lists homicide as the manner of death. That is murder.

Mr. Rizzo sought the death penalty for Mr. Brown. He asked the jury to sentence Mr. Brown to die. Being strapped down on a gurney while being pumped full of poison would qualify as an "act clearly dangerous to human life."

According to Section 15.01 of the Texas Penal Code:

(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.

We already know that Mr. Rizzo wanted Alfred Brown to be condemned to die. He tried the case and he asked the jury to return a death sentence. He also failed to turn over the phone records to the defense prior to trial despite having been told of the existence of those records. His failure to produce the records led to the guilty verdict as there was no corroboration of Mr. Brown's alibi without the records.

As I have pointed out numerous times on this blog, a defense lawyer's ethical duty is to provide the best defense he can for his client. His job is to try to win the case - or at least limit the damage to his client. A prosecutor, on the other hand, has an ethical duty to see that justice is done. Mr. Rizzo was trying to win his case. He wasn't interested is seeing that justice was done. He was only interested in obtaining a guilty verdict and a sentence of death.

Mr. Rizzo violated his ethical duties by failing to turn over the phone records. As for attempted murder, if the shoe fits...

Here is the letter from HCCLA President Tucker Graves to Harris County DA Kim Ogg:

   Rizzo-3-12-18 by Paul B. Kennedy on Scribd

Can acting in a client's best interest violate the 14th Amendment?

On Wednesday the US Supreme Court heard a case out of Louisiana that raised the question of whether or not a lawyer can tell a jury his client is guilty - over his client's wishes.

Robert McCoy lived in Louisiana with his wife Yolanda, their infant daughter and her son. Mr. McCoy was a violent man who threatened Yolanda with a knife. She eventually left with the children. She fled with her daughter but left her son with her parents so he could finish school.

Mr. McCoy killed her son and her parents and was charged with the three murders. There was a 911 call from Yolanda's mother in which she is heard talking to Mr. McCoy telling him that Yolanda and the baby weren't there. Then there was a gunshot and the line went dead.

Despite the evidence against him, Mr. McCoy maintained his innocence throughout the case. He told police the murders were the result of a drug deal gone bad.

At first Mr. McCoy was represented by a public defender - but he fired his attorneys when they refused to subpoena his alleged alibi witnesses. His parents then hired Larry English for the princely sum of $5,000 to represent their son.

Now, as an aside, if that was indeed the fee paid to retain Mr. English's services, someone should have known that this wasn't going to work out well for Mr. McCoy. The amount of the fee is much to low to represent someone facing the death penalty. It is a fee that screams out "I'm looking for a plea deal!" to anyone who would listen.

Mr. English set about trying to convince Mr. McCoy that it was in his best interest to plead guilty in an attempt to get the death penalty off the table. But Mr. McCoy refused to change his plea. So, Mr. English set about on his trial strategy to save Mr. McCoy's life -- even if he didn't want saving.

“People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.” - Justice Sonia Sotomayor

At trial Mr. English repeatedly told the jury that Mr. McCoy was guilty of the murders. According to Mr. English, his goal was to get the jury to convict McCoy of the lesser charge of second-degree murder because he suffered from diminished mental capacity, thus sparing his life. Unfortunately for everyone involved, Mr. English was not up on the law in Louisiana (as if this should have surprised anyone). You see, in Louisiana you are only eligible for a diminished capacity defense if you have entered a plea of not guilty by reason of insanity. Oops.

In the end, Mr. McCoy was convicted on all three counts and sentenced to death. He then appealed, arguing that his right to due process was violated when his attorney told the jury he had committed the murders, despite his protests of innocence.

On the one hand, this matter seems fairly straight forward. An attorney works for his client. He doesn't have to like his client. He doesn't have to agree with his client. But his job is to represent his client to the best of his ability. A client has the right to enter a plea of his choice. A client has the right to request a bench trial or a jury trial. A client has the right to take the stand to testify if he so desires. The attorney's role is to advise the client as to the best course of action.

But what if the client ignores what's in his best interest? What if a client has the chance to mitigate the damage but chooses not to do so? What if the client is following down a path that will lead him straight to the death chamber?

What is an attorney to do in those circumstances? If we are to act in our client's best interest, can we ignore our client's wishes when it comes to trial strategy? We can all advise our clients to take a plea deal when the arrangement is in their best interest - even if they don't realize it; but we can't force them to take the deal.

What was the sin that Mr. English committed? Was it his trial strategy of conceding guilt in hopes of saving Mr. McCoy's life or was it his misunderstanding of the law? I would argue it is the latter. In this case the real problem was the attorney's incompetence. Whether or not one's trial strategy deprives the client of due process is a moot point when the attorney has no idea what the law is.

I think the larger questions to be answered are: to what extent are we mouthpieces for our clients and just how far can we go in being advocates for our clients? And when it comes to representing those accused of criminal acts, where does the concept of due process draw the line?

See also:

Amy Howe, "Argument analysis: Concern for death-row inmate's right likely to trump line-drawing worries," SCOTUSblog (1/17/2018)

Ignorance is disgusting

Last week Donald Trump once again displayed his ignorance about how the criminal (in)justice system works in this country when he tweeted out that the verdict in the trial over Kate Steinle's murder was disgraceful. Attorney General Jeff Sessions opened his mouth and displayed his ignorance when he proclaimed that the murder was the result of San Francisco's status as a sanctuary city for immigrants.

Jose Ines Garcia Zarate was acquitted of the charge of murder in a month-long trial in San Francisco, though he was convicted of being a felon in possession of a firearm.

Now, I don't recall Mr. Trump expressing any outrage at jury verdicts in which police officers were acquitted for killing unarmed an unarmed black man. Quite the opposite, he was quite happy. We can all be angry at a jury for the decision they made but, unless you were in the jury, your view of the case can be quite warped.

Mr. Trump seemed upset that the jury was not told that Mr. Garcia Zarate had crossed the border illegally five times. Well, I've got news for you, Mr. President, such a fact is inadmissible in a murder trial. You see Mr. Garcia Zarate was tried for the specific offenses related to the death of Ms. Steinle and, therefore, the only evidence the jury heard was related to those offenses. You see, Mr. President, in this country (as flawed as our criminal (in)justice system is) we try folks on the evidence related to the crime with which they are charged.

Were the jury to have heard evidence regarding Mr. Garcia Zarate's immigration status they may have made a decision based on something other than the evidence regarding Ms. Steinle's death. They may have been asked to convict a man for murder for no other reason than he wasn't born in this country.

Now that would have been a disgusting verdict.

A jury doesn't hear all the evidence because some of it, sometimes a lot of it, isn't relevant to the case at hand. It is not uncommon for a jury to be excused from the courtroom while the attorneys argue over the admissibility of evidence before the judge. Those reading the newspaper or watching the news (or in attendance) are then made privy to information the jury never heard and will never consider.

The jury that heard the case wasn't trying to make any political statements. Their sole duty was to hear the evidence presented and to make a decision as to whether or not the government had proven their case(s) beyond a reasonable doubt. Just because a jury acquits a person doesn't mean they don't think a crime occurred. It means, instead, that they have more than a reasonable doubt, based on the evidence presented, that the government proved its case.

The jury's job isn't to convict someone - and it isn't to acquit someone. You may think a jury got it wrong, but that is how we decide cases the parties cannot work out on their own. And, in a murder case, sometimes the hardest thing to prove is that the actions of the defendant were intentional. And even though motive is not a required element of a murder case, the absence of a motive can raise reasonable doubt in the mind of a juror.

So, Mr. President, the jury's verdict wasn't disgusting. It was what it was. Using your bully pulpit to try to intimidate future jurors is disgusting.

And as for Mr. Sessions, you took an oath to uphold the Constitution and to seek justice. You're not happy with the verdict. Okay, I get that. However, threatening to file federal charges against Mr. Garcia Zarate is not seeking justice. It is called vindictiveness.

Having too much information can be hazardous

Brian P. Fox is a student at Notre Dame Law School, not an actual lawyer. He has studied criminal law and criminal procedure but he has not practical experience dealing with them on a day-to-day basis. He spends his time studying and answering questions posed in the Socratic method from his law profs. He doesn't spend his mornings in the courthouse or his afternoons at the county jail with his clients.

Yet Mr. Fox is convinced that open-file policies in criminal cases are bad. In Mr.Fox's world, open-file policies are bad for defendants and even worse for criminal defense attorneys. You see, Mr. Fox knows better than you or me how to do our jobs most effectively. Oh the arrogance of youth.

The first thing Mr. Fox does is tell us that open-file policies won't prevent prosecutorial misconduct. He makes reference to the Duke lacrosse case and points out that even if prosecutors were required to make their files available to the defense, those prosecutors who were bound and determined to hide something would continue to do so.

And that's fair enough. We have an open-file policy in Harris County (as do many counties throughout Texas) and it certainly doesn't stop the Harris County District Attorney's Office from concealing potential Brady material.

But then Mr. Fox goes off the deep end. He tells us he's concerned with the workloads and low pay of public defenders. He tells us that if the state were required to make their files available to the defense that these poor, overworked souls would be swamped with mountains of evidence to sift through when putting their cases together. Really?

The problem for public defenders isn't having too much material to sift through. The problem is having too many case files thrown on their desks because the state or the county doesn't want to pay more money to defend those folks accused of committing crimes. Remember, indigent criminal defendants aren't a key demographic in anyone's election strategy.

At the same time Mr. Fox is telling us that it's too much work for public defenders to have to deal with open-file policies, he's also telling us that such policies would reduce the number of cases that are resolved with plea bargains and that it would burden the courts and prosecutors with more trials. His fear is that someone who did something bad might escape punishment because no one has time to deal with him.

Should Mr. Fox ever deign to join us in the trenches he will quickly find that we don't concern ourselves with the cost to the state of going to trial. How much extra work a prosecutor has to do to get ready for trial doesn't concern us, either. Our only goal is to provide as vigorous a defense for our clients as we can - nothing else matters.

If open-file policies would lead to more trials and fewer plea bargains, then maybe that's a good thing. Criminal defendants have a constitutional right to be tried by a jury of their peers. If the state can't handle the burden of additional trials, then perhaps someone should take a long, hard look at how charging decisions get made in the prosecutor's office.

Perhaps the strangest of Mr. Fox's arguments is that the rules for how we conduct criminal prosecutions are tilted heavily in favor of the citizen accused. Yeah, just let that assertion soak in for a moment.

He points to the Fourth Amendment's protection against unreasonable search and seizure, the Fifth Amendment's protection against self-incrimination and the burden of proof carried by the state is making his assertion. If Mr. Fox had any experience defending criminal cases he would know what a joke each of those so-called protections is in real life. If he had any experience he would know that the Fourth Amendment is but a shadow of itself these days. He would understand that judges have a hard time excluding evidence they know will prove the defendant guilty. He would understand how little jurors really understand the presumption of innocence and what it means to prove someone guilty beyond all reasonable doubt.

But, hey, being a contrarian is all the rage these days - particularly when one hasn't got a grasp on the reality of the topic he's writing about.

Unintended consequences of the Michael Morton Act

All across the State of Texas, local district attorneys are teaming up with judges to find creative ways to get prosecutors out from under the Michael Morton Act. For those of y'all not keeping up, the Michael Morton Act mandates items that the state must hand over to the defense in a criminal prosecution. The law was named after Michael Morton, the Williamson County man who spent 25 years in prison after being wrongly convicted of killing his wife.

The current tool to get around the requirements of the Morton Act is a waiver that defense attorneys are asked to sign before their clients enter a guilty plea to a charge. The waivers I've seen all contain some language about the defense attorney acknowledging that the state turned over all evidence mandated by the Morton Act.

Of course the problem here is the problem I've written about with regard to Brady material. As a defense attorney I haven't the slightest clue what evidence the DA's office has access to. I haven't the foggiest idea what evidence is in the hands of law enforcement. And I sure don't know if anyone is playing hide the sausage with exculpatory material.

I would be fine signing a document listing out everything the state produced during the course of the case - but I have a hard time signing any document in which I acknowledge that I have received everything I'm entitled to when I have no way of knowing if I have or haven't.

Even more objectionable is the section in which the defense attorney is asked to waive the state's obligation to hand over material listed in the Morton Act once the defendant has entered a plea. First, I don't think a defense attorney can ethically waive his client's right to obtain exculpatory material long after his case has been closed unless the client understands fully just what that waiver entails.

Exculpatory evidence can take many forms. It may be the confession of a lab analyst who faked hundreds of tests during his or her time in the crime lab. What about the police officer who is later indicted, and corrected, for a crime of dishonesty or moral turpitude? How about a supervisor who doesn't go out and run calibration tests on her equipment? Revelations that evidence in a crime lab was stored improperly? What about a later confession by a person who claims to have committed the crime to which your client pled guilty?

Each and every one of those examples presents an opportunity for post-conviction writs based on evidence that was unavailable at the time of trial. Would these waivers allow prosecutors to brush such incidents under the rug? If a defendant has waived his right to exculpatory material after his plea bargain agreement, would prosecutors have any obligation to notify him - or his attorney - of an issue that might affect the validity of his conviction?

If that is the effect of the waivers that attorneys are being asked to sign, then the intent of the Morton Act has been turned on its head.

Hear my tiny violin

The Michael Morton Act was passed in response to the wrongful conviction of Michael Morton. Mr. Morton, as has been noted here before, sat in prison for 25 years until his conviction was overturned. He was convicted in large part to prosecutorial misconduct.

Of course Mr. Morton wasn't the first person in Texas who sat in prison for decades as the result of a miscarriage of justice. He became the poster boy for wrongful convictions in large measure because he was white, he was from the suburbs and he was in a management position at the time of his arrest for murdering his wife.

The Michael Morton Act requires prosecutors to turn over all exculpatory evidence to the defense whenever it becomes available. It's the first time that Texas has put teeth into the Supreme Court's proclamation in Brady v. Maryland.

Civil litigation in Texas has long been governed by the Texas Rules of Civil Procedure that mandate complete discovery with the view that if all the facts are made known to all sides, there is a better chance the parties can come to an understanding without the need for trial.

In criminal cases, on the other hand, the defense was long saddled with the burden of not having access to the state's evidence. Forget about all that presumption of innocence crap and that garbage about proof beyond a reasonable doubt. Criminal trial work in most of the state was a glorious game of hide the sausage. Unlike the civil side of the ledger - in which folks were just arguing about money - the state was allowed a monopoly on the evidence.

We didn't allow trial by ambush in the civil courts but it was open season on defendants in the criminal courts.

Now that the state legislature has told prosecutors around the state evidence must be disclosed to the defense, district attorneys around the state have been squawking about how much it will cost the government to provide material to the defense. I, for one, don't give a flying fuck whether district attorneys around the state are wringing their hands about the cost of producing material. The government is the party that's trying to restrict the liberty of its citizenry.

And if we're interested in protecting the due process rights of those accused of criminal acts, then full disclosure on the part of the state is the only way to go. Full disclosure may very well be more expensive that not disclosing, but it can also lead to defense attorneys recommending that their clients enter into plea agreements based on the available evidence. Full disclosure will also reduce the number of appeals and writs based on prosecutorial misconduct. And I think we can all agree that's not a bad thing.

If the cost of producing material is higher than a district attorney thinks he or she can justify then maybe local prosecutors need to think twice about the cases they are filing. Maybe the cost of complying with the Michael Morton Act should be a factor to be considered in whether or not to accept the filing of charges in any given case.

Class dismissed

Talk about your sophisticated ways of poisoning jury pools and public opinion. The Harris County District Attorney's Office found the perfect tool to make Harris County even more prosecution-friendly.

According to a PR memo released by the DA's office, Harris County prosecutors have been spreading propaganda "teaching" students at Strake Jesuit High School about criminal procedure over the past five weeks.

I'm sure there was plenty of talk about technicalities and court decisions that have hampered the ability of the police to do whatever the hell they want to do. Sure, there's a justification for gutting the Fourth Amendment's protections against unreasonable search and seizures - it's really important that we catch the bad guys and, well, sometimes that requires us to do some things that, under ordinary circumstances, we shouldn't do.

I doubt there was any mention of how Harris County systematically violates a defendant's right to counsel at crucial stages of a prosecution. I mean, why on earth would a defendant need to consult with an attorney before a magistrate judge fills in the blank on the arraignment form with the bond listed in the county's bond schedule?

I would guess that somehow the prosecutors assigned to the propaganda division forgot to inform the students about the abuses heaped on defendants from judges intent on clearing their dockets via mass plea. Oppressive and punitive bond conditions? Doesn't happen. Threatening to revoke the bonds of defendants who come to court without attorneys? A very rare occurrence.

And there is no need to talk about prosecutors hiding the sausage and ignoring Brady now that the Michael Morton Act is about to go into effect. We've got extensive checklists now so that the burden can be shifted onto defense attorneys when exculpatory evidence isn't handed over. I wonder if they broached the subject of junk science being deemed admissible if it was beneficial to the prosecution? Probably not.

If the purpose of this exercise had been to teach high school students about criminal procedure and how the criminal (in)justice system works, there should have been criminal defense lawyers involved. Allowing students to hear one side of the equation while acting like they're getting the whole story is a travesty and has no place in our education system.

Doing so allows the state to continue to equate constitutional protections with "technicalities." There is a reason behind the protections of the Third, Fourth, Fifth and Sixth Amendments. Ignoring the reason behind those protections is a disservice to our youth - and our society.

I'm certain that no one told the students that the defendant is entitled to a vigorous defense and that the job of the criminal defense lawyer is to hold the state to its burden of proof. It is the job of a defense attorney to ensure that his client's constitutional protections aren't violated. It is the job of the defense attorney to question every piece of evidence and to challenge the state to prove its case beyond all reasonable doubt. It is our job to stand beside people that no one else will and fight to defend their liberty.

We don't deal in technicalities. We deal in quanta of proof. When it comes down to it, the defense lawyer is the only person standing between his client and the power of the state.

H/T Grits for Breakfast

Is it time to bail on the bond system?

In Maryland whenever someone was arrested they would be brought before a judge who would determine if the defendant should be granted bail, should be held without bail or should be released on their promise to appear in court. This system functioned efficiently - primarily because it excluded lawyers.

At least that's how they used to do it before the Maryland Court of Appeals found the bond hearings to be unconstitutional because defendants were denied the assistance of counsel. Now the state is scrambling to find a new way to decide who gets to sit in jail awaiting trial and who gets to sleep in their own bed. Due to the cost of providing additional public defenders and prosecutors at bail hearings, the state is considering doing away with the entire bail bond system.

Of course the bondsmen are a powerful lobby who have a direct interest in the way this matter proceeds. And they have friends - trial lawyers - in the Maryland legislature who love the campaign contributions.

The purpose of bond has always been to assure a defendant shows up in court. The seriousness of the charge and whether the defendant is a danger to society are other factors that come into play - but the presumption is that every defendant is entitled to bail. The system has become one in which those who have the resources are able to bond out while those without money, who are charged with identical offenses, sit behind bars until their cases are disposed.

The ruling in Maryland interests me because we have a similar system here in Harris County. If you are arrested in Harris County you will be taken before a magistrate on video. The magistrate will admonish the defendant to keep his damn mouth shut and will then determine the bond amount. For virtually every case that amount is written on a sheet of paper - the county bond schedule.

Harris County misdemeanor bond schedule

Harris County felony bond schedule

The defendant isn't afforded the assistance of counsel at this hearing. There is no one to speak for him. The case is filed, the defendant is admonished and the judge looks down at a piece of paper to determine how much it'll cost the defendant to sleep in his own bed while his case is pending.

The Sixth Amendment has been interpreted to mean that a criminal defendant is entitled to the advice of counsel at any crucial stage in our criminal (in)justice system. But, in Harris County, that initial bond determination isn't considered a crucial stage in the process.

The benefactors are the county's bondsmen who exact their pound of flesh before sending the magic paper to the county jail. The other benefactors are the judges who can rely upon the bond system to coerce defendants behind bars to plead out their cases in order to go home. Just imagine the chaos if every criminal defendant had the ability to fight their case from outside the jail. No longer would the state have the added bonus of pretrial incarceration as a negotiating tool.

Of course we have other problems in Harris County - most stemming from attorneys and judges who don't bother to read Article 1, Section 11a of the Texas Constitution. That provision sets forth who can be denied bail and how that determination is to be made. According to the Constitution, a defendant may only be held without bail (on a non-capital case) if a hearing is held within seven days of his arrest to determine whether or not the state can deny bond. Very few people know this and very few attorneys ever litigate the matter. Ask a prosecutor about it and they'll just tell you the bond schedule says he doesn't get a bond.

In a sane world the notion that a pretrial hearing to determine whether a defendant is entitled to a bond is not a crucial stage in the process would be laughable. Here in Harris County it's called "doing business."

Outside the box and over the line

Chapter 45 of the Texas Code of Criminal Procedure lays out the procedural rules for the handling of Class C misdemeanors in municipal and justice courts. A defendant may appeal an adverse verdict in justice court or in a municipal court that is not a court of record simply by filing an appeal bond with the trial court.

Provided the appeal bond is posted no more than ten days after the judgment is entered, the appeal is perfected and the case goes up to the county court for a trial de novo. In other words, the appeal is treated as a brand new case.

In Texas the holder of a commercial driver's license isn't eligible for dismissal at the municipal or justice court level through the completion of a driver safety course or through a successful deferred probation - even if he was driving his private car at the time he was stopped and cited. However, there is no apparent prohibition on the county courts when handling an appeal. Now, federal regulations seems to prohibit the so-called "masking" of citations issued to CDL holders and the County Court judge up there refuses to allow a CDL holder to have his citation dismissed through deferred probation.

As an aside, I would argue that the rules only prevent the masking of a conviction by deferring imposition of sentence or allowing the driver to enter into a diversion program. If there is no conviction, however, there is nothing to mask.

Now why, might you ask, am I writing about appeals from traffic tickets? And, if you are asking that - it's a good question.

This morning when I left the courthouse I ran into a colleague of mine who is a municipal court judge in a couple of towns on the outskirts of Houston. He's also a defense attorney with whom I worked on a theft case before. I asked him how life on the bench was treating him and we got to talking about the world of Class C misdemeanors.

We both agreed that if you have a case with a CDL holder in justice or municipal court that there is no reason not to try it. The worst possible outcome is you lose and appeal it up and see it magically disappear at the county court level. He said got so tired of people pleading no contest at the municipal court level and immediately filing an appeal bond that he changed the plea papers in his courtroom.

Now in at least one of the courts in which he sits whenever someone not eligible for dismissal through a driver safety class or deferred probation pleads no contest, the paperwork he signs includes a waiver of his right to appeal.

Hmmm. I don't think we get to go there, my friend. Article 45.042 states that an appeal from a municipal court (that's not a court of record) or a justice court are to be heard de novo by the county court. Article 45.0425 states that to appeal an adverse verdict out of a municipal court (that's not a court of record) or justice court, the defendant must post an appeal bond in an amount not less than twice the fine. Finally, article 42.0426 states that the appeal bond must be filed not less than ten days after the date the judgment was entered and that if it is, and the bond meets the requirements of the code, the appeal is perfected and the case is sent up to the county court.

There is nothing in the code that says you can't appeal an adverse judgment after pleading no contest. There is nothing in the code that says you have to get the judge's permission in order to file an appeal bond. There is nothing, in fact, that gives a judge any discretion in the matter. If the bond is filed and is proper - the case goes up. Otherwise, the judgment stands.

The judge has overstepped his bounds and imposed a restriction on those appearing in his court that is not allowed under Chapter 45 of the Code of Criminal Procedure. His new policy deprives folks of their statutory right to appeal an adverse judgment. His pronouncement violates the separation of powers in that he is usurping the role of the legislature.

I'm not going to go into my rant about petty tyrants run amok because he is one of the few municipal court judges who doesn't act like a cash register clerk for the city. He tries to do the right thing when he's sitting on the bench. But this time, he got it wrong.

State Senate passes Michael Morton Act (corrected version)

Yesterday the Texas Senate unanimously passed the Michael Morton Act which will expand the scope of discovery for defendants in criminal cases. In the face of staunch opposition from the defense bar, any provisions requiring the defense to hand over documents were removed from the bill.

Proponents even withstood a last minute attempt by Sen. Joan Huffman (R-Houston) to insert a provision in the bill that would, in effect, place a gag order on defense attorneys regarding the release of any information obtained via discovery. That last statement wasn't true - it was based on an article that ran in Wednesday's Texas Tribune (a story that is no longer on their website) that claimed a last minute compromise had been worked out that would remove the amendment from the bill. The article, however, was light on details. As Grits pointed out in his comment this morning, and as I noted a few paragraphs down, provisions (e) and (f) impose a gag order on defense counsel regarding the information obtained through discovery.

I apologize for the misinformation and confess that I should have known better given that the bill passed the Republican-controlled Senate without a single dissenting vote.

Grits also notes that the defense bar was absent when discussions over Sen. Huffman's amendment were held. That's a topic I will address in another post. My thanks to Scott for pointing out the errors in the original posting.

The bill even contains a statutory Brady requirement that is actually more defense-friendly than Brady itself.

According to the language of the new bill "the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged."

So, while the Supreme Court held that the state must turn over any actual or potential exculpatory material if it is material to the case at hand - leaving a wide berth for placing the documents in the desk drawer - the Michael Morton Act would require the state to turn over any exculpatory evidence that might negate guilt or mitigate punishment.

Of course we're left with the same dilemma, nonetheless, in that too often we don't find out about Brady material until after the fact. If it's not in your possession it might as well not even exist. The new bill also doesn't lay out what sanction, if any, would apply to a prosecutor who violates the Brady requirement.

While Sen. Huffman's proposed amendment was removed in order to ensure passage of the bill there is a provision which would seem to bars defense counsel from sharing any information obtained through discovery to any third party except those whom are agents of the defense. This would appear to prevent the defense from providing information to the press regarding any issues of misconduct - if that information was obtained through the discovery process.

One interesting provision would require a statement from both the state and the defendant listing the documents and other items turned over by the state prior to a defendant entering a guilty (or no contest) plea. That provision may actually reduce the practice of indigent defendants pleading out on their first settings because their attorneys would be opening themselves up to potential claims for ineffective assistance of counsel if nothing more than an offense report had been turned over. Then again, the courts may just put some boilerplate language in a plea form indicating that the defendant had reviewed the items required to be disclosed under the bill.

On the downside, there is no automatic trigger in the bill. None of the disclosure obligations of the state are triggered until the defense files a request asking for the evidence referred to in the bill.Presumably the request would only need to refer to the material described in Article 39.14(a) of the Texas Code of Criminal Procedure. If no request is filed, the state is not required to disclose the information until trial - by which time it is probably too late.

The bill would go into effect on January 1, 2014 and its provisions will only apply to cases filed on or after that date.

False equation

In his latest shot at the defense bar, Grits for Breakfast seems to be making the argument that everyone should ignore the defense bar's opposition to reciprocal discovery because about 97% of criminal cases plead out.

What he leaves out is that all the exonerations we've seen over the years in Texas result from cases that went to trial. In other words, on cases in which the defendant either was claiming he was not guilty or that the sentence offered by the state was greater than what a jury would mete out.

The statistic he cited also doesn't give us a breakdown between counties with so-called open file and closed file policies. Nor does he fill us in on how many of those convictions resulted from the failure of the state to disclose Brady material.

Criminal cases plead out for any number of reasons. Some defendants plea because they can't get out of jail due to punitive bail conditions. Others plead because the state has offered to dismiss certain counts or enhancements. Some plead because they would rather take deferred adjudication than take a chance at trial. Others plead because the state has offered the minimum or because a felony has been reduced to a misdemeanor. Still others plead because the cost of a conviction at trial is more than they can bear.

Whatever the reason, the common thread in the cases in which defendants have been exonerated is the state's failure to act ethically and legally. The secondary theme is defense counsel who were ineffective either because they weren't competent to handle the case or because there wasn't enough money to conduct a proper defense.

The answer isn't to require a defense attorney to open up his file to the state. The answer is to force the state to produce evidence, both incriminating and exculpatory, to the defense prior to trial and to sanction the state for its failure to do so. Sen. Ellis' latest version of reciprocal discovery continues along the path of treating criminal cases like civil disputes in which both sides are equal.

Anyone who has ever been through the criminal (in)justice system knows that there is no equality between the sides in the criminal courthouse. The percentage of cases pled out is prima facie evidence of who has the upper hand.

Reciprocal discovery is a wolf in sheep's clothing

There's a battle a-brewing in Texas. A bill, sponsored by State Senator Rodney Ellis (D-Houston), is making its way through the legislative process that would greatly alter the means by which discovery in criminal cases is conducted.

Texas already has reciprocal discovery under the civil rules. Discovery in civil cases is nothing more than an over-the-top game of "you show me yours and I'll show you mine." The parties in a civil dispute share witness lists, expert lists, exhibits and theories of the case. The point is to make the facts and issues so crystal clear that one side of the other presses for an out of court settlement.

On the criminal side, however, discovery is conducted differently from county-to-county. Most district attorneys have what's known as an "open file" policy. That means that defense attorneys are able to view the state's evidence throughout the course of the case. Offense reports, witness statements, photographs, videos. You name it - so long as it's not considered work product, the defense gets to see it.

Other counties hold on to a "closed file" policy. In those jurisdictions you only get what the DA is willing to let you see. If you want more, you'll have to see the judge.

The missing piece in a closed file county, then, is the lack of an offense report. Now whether you get a copy of the offense report or you just get to take notes, attorneys in open file jurisdictions have an advantage as they know the names of all the officers involved and they can see where the state's case is weakest. And, since Brady material is somewhat in the eye of the beholder, that lack of an offense report puts the defense attorney behind the 8-ball.

And this is the why of Sen. Ellis' reciprocal discovery bill. Defense attorneys in closed file counties want to be able to see the offense report. Organizations such as The Innocence Project want to be able to see and compare offense reports.

But to compel the defense to provide information to the state about its case serves only to shift the burden of proof. There is no reason for the defense to share any information prior to trial. As a defense attorney, do you really want the state to know the names of all of your potential witnesses? Do you really want the prosecutor to have free reign to intimidate your witnesses?

The state has the burden of proof. The state gladly assumed that position when a prosecutor filed either an information or an indictment in your client's case. As the defendant is presumed innocent unless proven guilty, there is no need for the defendant to tell the state anything. There is no need for the defendant to give the state any information at all.

Over on the civil side the parties are considered to be starting their case from the same point. At the end of the trial, the judge will ask the jury to determine, by a preponderance of the evidence, who proved their case. It's all a contest about who can move the ball past the 50-yard line. But that's not what criminal law is all about. Our clients get a head start at trial. It's not a level playing field - and it's not supposed to be. Our Founding Fathers were less worried about a false arrest than they were a fall conviction.

The real battle should be over open-file versus closed-file jurisdictions. Those few holdouts from producing offense reports should be required to turn then over to the defense. Reciprocal discovery, as propounded by Sen. Ellis, would force the defense to share its most intimate secrets with the state. And so, while the idea seems attractive to a good many folks (particularly non-lawyers who haven't the slightest idea what really goes on in a courtroom), it will do far more harm to criminal defendants than good.

Taking a look at notable criminal justice bills in the Texas Senate

Yesterday we looked at some of the criminal justice bills filed in the Texas House. Today it's time to head down the hallway and check out what the state senate has been up to.

First up is Sen. Rodney Ellis' (D-Houston) reciprocal discovery bill. Yes, the proposal codifies what materials the state must make available to the defense. In many areas of the state these items are covered under standard discovery orders issued by the courts. But the bill would also require the defense to make material available to the state prior to trial.

While some would see no problem with this arrangement, it puts a burden on the defense to produce evidence - something the defense is not required to do at trial. In a criminal prosecution the burden of proof is placed squarely on the shoulders of the state - this isn't a civil case where both sides have a burden to meet.

Additionally, the bill provides no effective relief should the state fail to produce the required items. In fact, the bill makes itself a punch line by explicitly stating that the failure of the state to comply is not grounds to dismiss a case or set aside a verdict.

Sen. Dan Patrick (R-Houston) has put forth a bill that would permit deferred adjudication for intoxication offenses. That is a step in the right direction. If a defendant is able to plead to deferred adjudication for every other misdemeanor offense and the vast majority of felony offenses, it makes no sense whatsoever that he isn't allowed to be placed on deferred adjudication for driving while intoxicated. For recognizing this, I give Sen. Patrick a thumbs-up.

The proposed bill would count a deferred on an intoxication offense as a conviction for enhancement purposes. On this I have mixed feelings. While I think a prosecutor should be allowed to take into consideration a prior deferred on a DWI, I don't like making it black letter law. Defendants choose to take deferred for a variety of reasons. Sometimes that decision is made because the risks of going to trial versus taking a deferred are too great - even for an innocent person.

Sen. Patrick has also proposed a bill that would make it a Class A misdemeanor for former members of the state legislature to lobby until after the second regular session after their retirement, or firing, has adjourned.

Yes, the proposed bill would put a temporary stop to the revolving door that infects our government at all levels. But, do the provisions prohibiting lobbying for a certain period of time violate the First Amendment?

Finally, Sen. Judith Zaffirini (D-Laredo) introduced a companion bill to Rep. Craddick's proposal to make it a crime to text while driving.

Taking a look at notable criminal justice bills in the Texas House

It's that time of year again. It's time for our beloved state legislators to pre-file bills before the beginning of the biennial session in January. And, it's probably time to be thankful that they only meet for 140 days every other year - because, otherwise, they could do some real damage.

Today we'll look at some notable bills filed in the house.

First we have Rep. Tom Craddick's (R-Midland) latest attempt to criminalize texting while driving. Under Mr. Craddick's bill, it would be a Class C misdemeanor (traffic ticket) to send a text, read a text, send an e-mail or read an e-mail on a phone or tablet while driving. That is, unless your phone allows you to dictate a text or e-mail or listen to a text or e-mail.

I think we can all agree that it's just not a good idea to text while driving. There is too much else to worry about when out on the road without checking your Facebook status or Twitter timeline at the same time. The bill does not address talking on the cellphone while driving which, even though one's hands may be free, is just as distracting as trying to send that text message.

Rep. Harold Dutton (D-Houston) has put forward a bill that would abolish the death penalty in Texas and replace it with life in prison without parole (or as Jeff Gamso would say, death in prison). Rep. Dutton's bill would also change the procedures by which appointed counsel is chosen in criminal cases.

In a contest to see who can submit the most obnoxious bill, Rep. Van Taylor (R-Plano) has filed a bill that would require law enforcement personnel to determine the identity of a driver by use of various forms of state-issued identification or, if necessary, finger-printing. Of course we all know the purpose of the bill is to target Latino drivers in Texas and to force motorists to show that they are citizens if stopped for a minor traffic offense.

Mr. Taylor's offering is followed closely by Rep. Richard Raymond's (D-Laredo) bill that would create an on-line data base of everyone in Texas who has been convicted of driving while intoxicated (or other offense involving drinking and driving) in the last ten years.

The database would contain a photograph and the person's last known address. The next step in this march to stupidity will be to require a person convicted of an intoxication offense to register on an annual basis in order to create another offense with which they could be charged.

This idea, along with the current sex offender registration laws, are absurd. When a person has been convicted and has served their time in prison or on community supervision they have paid their debt to society. These registration bills force these folks to continue to pay a debt long after they have served their sentence.

Rep. Raymond has also filed a bill that would do away with the Court of Criminal Appeals and let the Supreme Court be the court of last resort for both civil and criminal matters. I have mixed thoughts about this proposal.

On the one hand, I think it makes sense to have one court handle nothing but civil matters and one court handle criminal matters. It streamlines the courts' dockets and, in a perfect world, provides us with judges who are well-versed in a particular branch of the law.

On the other hand, doing away with the CCA would do away with Judge Sharon Killer Keller which wouldn't be a bad idea. I don't know what Rep. Raymond's purpose in this bill is, but I am interested in finding out.

And finally we have Rep. Allen Fletcher (R-Cypress) who wants to do away with what we in the criminal bar fondly refer to as The Rule.

Texas Rule of Evidence 614 states that no potential witnesses may be in the courtroom when another witness is on the stand. The purpose of the rule is to prevent witnesses from changing their testimony in response to questions they hear another witness being asked.

Rep. Fletcher's bill would allow the prosecutor to designate a courtroom representative for the state during a criminal proceeding. The purpose, of course, is to help the state's witnesses keep their stories straight when testifying before a jury. As anyone who has ever tried a criminal case with multiple police officers knows, The Rule is observed more in the breach than in the observance once the witnesses leave the courthouse. I guess it shouldn't surprise anyone that Rep. Fletcher is a former police officer.

What Rep. Fletcher doesn't seem to understand is that the state already has a representative in most courts - it's called the judge.

Forcing the hand of the state

In Texas the state has two ways in which to pursue felony charges against an individual. The state can send the case to a grand jury who, after listing to what the prosecutor has to say and considering the evidence put before it (which may or may not include any evidence presented by the accused), will choose either to issue an indictment (a true bill) or not to issue an indictment (a no bill).

The other method is by an examining trial. If you've ever watched the old Perry Mason then you've seen an examining trial. In an examining trial a judge hears evidence and decides whether or not there is probable cause for continuing to hold the accused for trial.

The accused in a felony case has the right to request an examining trial in his case. That being said, there are very few examining trials held because once the accused submits his request, the District Attorney's first instinct is to put the case before a grand jury. Once the grand jury indicts there is no need for an examining trial.

In a slow-moving case in which the accused is being held in custody awaiting indictment, a request for an examining trial is a very effective method of forcing the state's hand. In most cases the state would rather avoid an examining trial because the proceeding allows the accused to "pin down" the state's witnesses to a story without the state having time to "woodshed" them properly.

Civil rules of discovery can help you in a criminal case

Texas Rule of Civil Procedure 176. "Subpoenas"

176.1 Form. Every subpoena must be issued in the name of "The State of Texas" and must:

a. state the style of the suit and its cause number;

b. state the court in which the suit is pending;

c. state the date on which the subpoena is issued;

d. identify the person to whom the subpoena is directed;

e. state the time, place and nature of the action required by the person to whom the subpoena is directed;

f. identify the part at whose instance the subpoena is issued, and the party's attorney of record, if any;

g. state the text of Rule 176.8(a); and

h. be signed by the person issuing the subpoena.

176.3(b) A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.

Texas Code of Criminal Procedure, Article 39.14. "Discovery"

39.14(a) Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies...

*   *   *   *   *

Tired of hearing the prosecutor tell you he can't produce the documents you requested because they aren't in his possession or under his control or custody? Then take advantage of the rules of civil procedure.

The Texas Rules of Civil Procedure provide for abundant discovery as the civil courts prefer not to have to deal with "trial by ambush." The rules provide tools for both plaintiffs and defendants to see all of the documents and evidence that will be presented at trial with the hope that this discovery will lead the parties to settle their disputes without the need for a lengthy trial.

These rules also offer the opportunity for criminal defense lawyers to "go in the back door" and obtain necessary evidence to defend their clients. Prosecutor tells you he doesn't have the sheriff department's inventory guidelines? Issue a subpoena to the sheriff's department for those procedures. Prosecutor won't produce a video tape or audio tape because he says he doesn't have it? Subpoena it from the police or sheriff's department.

In Texas you don't even have to go through the court to issue the subpoena. You can draft on your own and have your investigator serve it to the proper custodian of records. Sure, the prosecutor may get perturbed because of the route you're taking to get the records you need, but there's nothing he can do about it because the District Attorney is not a party to the subpoena. If the agency on which you served it wishes to fight it, they may -- but they must show the court why the requested documents aren't relevant to the case.

Down in Galveston County, the district attorney's office seems to want to have it both ways. They will tell you they don't have possession or custody of the documents you request when it suits them and, if you try to subpoena them, they will tell you that you can't have them. Unfortunately for the district attorney, it doesn't work that way. You either have possession, custody or control of the documents or you don't.  

You can also take advantage of your state's Open Records Act. Prosecutor tells you he doesn't have the arresting officer's civil service file? Issue an open records request to the law enforcement agency. Prosecutor says he can't give you any documents related to the warranty on the state's breath machine? Issue an open records request to the agency in charge of maintaining the machine.

When gathering evidence in a criminal case, be creative in your approach and don't forget that the rules of civil procedure may give you an additional tool in putting your case together.