Staying on the Cutting Edge

Cathy Lynn Henderson is set for execution June 13, 2007 in the Texas death chamber for the murder of infant Brandon Baugh, of Austin, in 1994. Henderson claimed Brandon died in an accidental fall which resulted in a fatal skull fracture. Although Henderson had buried the child 60 miles away and had fled the State, new data interpreting Brandon's skull fracture could better support Henderson's claim Brandon's death was an accident.

Dr. Roberto Bayardo was the Travis County Medical examiner who originally testified against Henderson. Bayardo claimed Brandon's injuries were inconsistent with an accidental fall but recently, Bayardo reviewed the new scientific data and concluded he "cannot determine with a reasonable degree of medical certainty whether Brandon Baugh's injuries resulted from an intentional act, or an accidental fall."

Defense lawyers strive to stay on the cutting edge of forensic technology. The advent of DNA testing has resulted in the exoneration many imprisoned individuals. New research questioning the reliability of eye-witness identification has shed doubt on many convictions uncorroborated by other forensic evidence, like fingerprints or DNA. In the field of DWI defense, lawyers well-versed in the technology of intoxilyzers and field sobriety tests have successfully discredited criminal prosecutions against their clients and obtained acquittals. The best defense lawyers continuously education themselves on new technologies, or become well-versed in old technology, to better prepare themselves to challenge the prosecution's case.

Our system of criminal justice is adversarial - it is a battle between the government and the individual accused. Employing experts, reading articles, and associating with others in the defense field are the best ways the attorney stays on the cutting edge. More importantly, they are the best ways the attorney defends their precious clients from the power and resources of the State.

As a client, don't be afraid to invest your resources on expert evaluations or cutting edge technology. Follow the the lead of a well-informed defense lawyer when making these critical decisions about your defense. The dividends may pay-off handsomely.

Random Boat Stops

Austin defense lawyer, Ken Gibson, provides summer lake-goers a valuable service discussing the impact of Schenekl v. State upon their recreational activities on area lakes. The issue in Schenekl was whether section 31.124 of the Texas Parks and Wildlife Code passed constitutional muster by allowing law enforcement officers to board water craft, without probable cause, to determine whether [the water craft] [was] in compliance with the various provisions of the Code.

In his article "Random Boat Stops and the 4th Amendment" Ken states:

It may be difficult to understand how a random stop, unsupported by probable cause, could be constitutional. The court, in making this determination, applied a two-prong test, weighing the State’s interest in the search against the individual’s right to personal security free from arbitrary interference by law enforcement. The court held that the State has a strong interest in protecting its citizens and promoting water safety through random safety checks. The court decided that, in contrast, the level of intrusion to the individual during a random boat stop is minimal. Thus, while it may seem counter-intuitive, the court held random safety checks of boats to be constitutional and not a violation of the 4th Amendment. This information is certainly important to keep in mind while spending time at the lake this spring and summer.

We could not agree more with Ken's assessment. Random boat stops by law enforcement officers may really be a pretext for BWI (boating while intoxicated) investigations. So be careful. If you must drink while on the lake, do so in moderation and designate a non-drinker to operate the craft. BWI is a Class B misdemeanor offense in Texas carrying a maximum jail sentence of 180 days and maximum fine of $2,000.00 for first time offenses. If you are charged with BWI, contact a qualified Bryan DWI defense attorney to begin an aggressive defense immediately.

Strict Liability Possession

In his article, "Jury Selection and the Unwitting Possession Defense," defense lawyer, Jamie Spencer, makes the excellent point that the prosecution must prove beyond a reasonable doubt an accused person "knew" he was in possession of contraband before the state can obtain a conviction. He presents an effective hypothetical example for use during jury selection to help prospective jurors to understand how easily a person might "unwittingly" be in care, custody, control, or management over something illegal like marijuana, a controlled substance, or maybe a weapon.

But what about "strict liability" possession cases like minor in possession of alcohol? The Texas Alcoholic Beverage Code (sec. 106.05) prohibits a person under 21 years of age from possessing alcohol. But the statute does not require a culpable mental state. In other words, the statute allows conviction even if the minor did not "know" there was alcohol in his car at the time the police found it. Case law research suggests the Texas statute, in fact, proscribes the possession of alcohol by a minor without any regard to fault.

The moral of this story? If you are a minor, watch very carefully who is getting into your car, and who's car you are getting into, during a night on the town. Police officers won't hesitate to arrest you and everyone else in the car if a can of beer is found in the front seat cup holder during a routine traffic stop.

Change is Inevitable

In life change is inevitable. In the practice of law change is often essential to maintaining our competitive edge - both with our adversaries and with our competition. Consequently, always be willing to change the way we do things - to change the way we think - to change the way we approach our client's problems.

Listen to those around us. Ask them how we can improve. The people who often know us best are the people we work with each day. Ask our staff how we can do things better. Value their input. We'll often be amazed with the ideas they contribute. But go the extra mile - implement their ideas. When we do our employees take a more personal interest in our practice and enjoy watching us improve the service we offer clients and their families. It is a win-win situation for everyone concerned - clients and staff alike.

Change is inevitable - embrace it - enjoy it.

Attacking HGN

The horizontal gaze nystagmus ("HGN") test is one used by police officers to establish probable cause to arrest a person for DWI. In theory, when used in combination with other field sobriety tests, HGN supposedly helps police officers correctly distinguish suspects who are under the influence of alcohol from those who are not. The test is based on the fact that alcohol affects the automatic tracking mechanisms of the eyes. Alcohol supposedly slows down the eyes' ability to rapidly track objects and causes the eyes to oscillate, or "jerk", before they normally would in a sober person. Alcohol supposedly stimulates the nerve endings, making nystagmus more pronounced in intoxicated persons. As a person's blood alcohol concentration increases, the eyes will "jerk" sooner as they move to the side. The HGN test claims to gauge intoxication by measuring the involuntary oscillation of the eyes.

However, nystagmus can be caused by problems in an individual's inner ear labyrinth. In fact, irrigating the ears with warm water or cold water...is a source of error. Physiological problems such as certain kinds of diseases may also result in gaze nystagmus. Influenza, streptococcus infections, vertigo, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, Korsakoff's Syndrome, brain hemorrhage, epilepsy, and other psychogenic disorders all have been shown to cause nystagmus. Furthermore, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure may result in gaze nystagmus. The consumption of common substances such as caffeine, nicotine, or aspirin also lead to nystagmus almost identical to that caused by alcohol consumption. (Quoting Pangman, Horizontal Gaze Nystagmus: Voodoo Science, 2 DWI J. 1, 3-4 [1987])

The aggressive DWI Defense Lawyer must challenge the ability of trial courts to take judicial notice of the reliability of HGN testing as well its application in the specific case on trial. The defense lawyer must consider presenting expert testimony challenging the use of HGN by showing it is not scientifically validated. Furthermore, the lawyer must attempt to show at best, the HGN is only circumstantial evidence that a person may have used alcohol or may be intoxicated.

DWI Investigations Using Search Warrants for Blood

When a citizen is suspected of driving while intoxicated (DWI) they have the absolute right to refuse field sobriety testing, to refuse submitting to a breath or blood test, and to refuse to answer any questions that may incriminate themselves. However, the latest craze among Texas jurisdictions is for the police to obtain a search warrant for blood. In other words, the police obtain an order from a judge compelling the accused driver to provide a blood sample for alcohol testing.

To obtain a search warrant the police need probable cause, or reasonable grounds, to believe the suspect driver was driving while intoxicated. They can use the results of field sobriety testing, incriminating answers to police questions, and any observed poor driving to develop this probable cause. However, the search warrant may be more successfully challenged if the driver refuses to submit to any sobriety tests and refuses to answer any incriminating questions by the police.

The police do not seek search warrants in every case but the frequency of using search warrants in DWI investigations is on the rise in Texas. A reasonable course of action for the suspect driver who has been drinking is to say as little as possible, do as little as possible, and be as polite as possible. Short of physically refusing, the driver should politely refuse all sobriety testing and never give the police permission to take a blood sample. Furthermore, the person should never submit to providing a blood sample believing the police will get a warrant anyway.

Finally, don't forget to consult with an experienced Bryan/College Station criminal defense lawyer as quickly as possible to help you navigate these treacherous legal waters.

DWI Field Sobriety Tests

Field Sobriety Tests, or "FSTs" as they are called by law enforcement officers in Texas, may include any of a dozen or more exercises. The more commonly encountered are: finger-to-nose, walk-and-turn, one-leg-stand, horizontal gaze nystagmus (HGN), the Rhomberg test, fingers-to-thumb, reciting the alphabet, and hand pat. Contrary to popular belief, you are not required to take DWI field sobriety tests. In fact, you may refuse to take them altogether. Even though the officer may still arrest you for DWI , you have not provided the officer with any solid evidence of suspected intoxication.

Studies funded by the National Highway Traffic Safety Administration (NHTSA) have shown that only three of the field sobriety tests - the one-leg-stand, the HGN, and the walk-and-turn - are effective in detecting an intoxicated driver. Other FSTs are simply unreliable. Police agencies across the country have adopted a NHTSA-recommended "standardized" battery of these three FSTs.

How accurate are field sobriety tests used by Texas law enforcement officers in DWI investigations? In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on their accuracy. His staff videotaped 21 individuals performing six common field sobriety tests and then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink to drive." What the officers did not know was that the blood-alcohol levels of each of the 21 subjects was .00 percent. None of the subjects had consumed any alcohol at all.

The results? 46% of the time the officers gave their opinion the subject was too intoxicated to drive. In other words, the tests were roughly as effective as flipping a coin. Cole & Nowaczyk, "Field Sobriety Tests: Are They Designed for Failure?", 79 Perceptual and Motor Skills 99 (1994).

Defending the Defender

There is but one duty and one loyalty in the practice of criminal law. That is to defend the client with vigor and aggression - but always within the boundaries of the law. We are to push the envelope and find every advantage that is available to our clients. We have no divided loyalties - no competing interests. We have but one focus and one responsibility - to defend each client to the best of our abilities without regard to our personal cost.

It is not the job of the criminal defense lawyer to promote themselves at their client's expense. It is their job to protect them and to serve them - even if it is at their own expense. It's our job to find the good in every client with compassion, understanding, and respect. And then it our job to reveal that good to obtain a reasonable and just result.

We are the last line of defense between the individual and the government. We are both a shield and a sword - injecting ourselves wholeheartedly into each and every case. We fight for the disadvantaged and the despised. We fight for the powerless and the poor. The general public does not understand our job and they don't appreciate our work. Nor do they appreciate our best efforts. They consider us shady. They might assume we lie. But the criminal defense lawyer is defending not only the individual - they are defending a system. A system of justice that places the burden upon the State - a system that presumes innocence. The defense attorney is defending us all from governmental abuse of power and overreaching.

We have but one duty and one loyalty - that is to the client.

Immigration Consequences for Non-Citizens

If you are a non-United States citizen, do not make any decisions about your criminal case without the assistance of a qualified and informed criminal defense lawyer. The immigration consequences of crimes can be severe and in many cases will outweigh the criminal penalty. All people who are not citizens of the United States, including immigrants and refugees, are subject to the possibility of deportation and separation from their family in the United States.

The consequences of a criminal conviction pose special difficulties for non-United States citizens and their defense lawyers. Sometimes just determining what constitutes a "conviction" for purposes of the Federal immigration laws is a daunting task for the criminal defense attorney. Non-citizen clients need a defense attorney who can offer basic assistance and advice about the immigration problems facing them in their criminal case. Also, clients need an attorney who can develop effective strategies in dealing with clients who are facing deportation.

Federal immigration law has changed dramatically in the past several years and the area of law is very complicated. Despite the complex nature of immigration law, criminal defense lawyers must carefully investigate their client's immigration status and understand the crime-related grounds for deportation or removal. Lawyers must also analyze the immigration consequences their client will face and resolve the consequences with an informed strategy. These lawyers must establish a working relationship with qualified immigration lawyers who regularly practice before immigration judges in federal court. Defense lawyers who maintain these relationships with the immigration bar can avoid circumstances with negative immigration consequences and can better keep clients informed of the rapid changes in the law.

Keeping Clients Informed

I was in Austin this past week attending a conference on Texas criminal appeals practice. While listening to speaker after speaker, I was again reminded of the importance of staying informed of the ever changing landscape of criminal law while continuously looking for ways my clients can benefit from new legal developments.

A new rule of appellate procedure requires defense counsel to advise clients of their right to file petitions for discretionary review with the Texas Court of Criminal Appeals. The new rule requires defense counsel to explain to the client they have the right to file for review on their own and what upcoming deadlines exist. Our office has been providing this service to clients for years, well before there was an official rule requiring it.

In 2004 a new procedure became available for clients to seal their records of successfully completed deferred adjudication. This procedure was called Non-Disclosure and we immediately set out to contact our former clients who were eligible to take advantage of this new law. Many clients benefited from this new procedure and were thankful we took time to contact them.

Keeping clients informed is an all important service. It takes time and effort - but the pay off is a well informed client who can make better informed decisions about their case.

Helping Parents Parent

A young man called the office today asking whether we had summer internship positions available. The young man was a freshman at Texas A&M University and was interested in studying law in the future. It was obvious he was "cold calling" attorneys out of the phonebook in hopes of getting lucky with a summer job. The young man seemed sincere so I thought I'd spend some time getting to know him.

I explained, in times gone by, the successful job hunter would prepare their resume first and then draft an appropriate cover letter to prospective employers. The cover letter and resume would be addressed to a specific person, mailed, and then followed up a few days later with a phone call inquiring about job openings. With this method, I explained, the employer would have their resume in hand and already know something of their background and experience. Although more labor intensive, I encouraged the aspiring job hunter to take such an approach. It would prove much more rewarding in the long run, was more professional, and revealed an important element of style.

Many of our clients are much like this young man - just starting out in life - but needing strong direction during a very uncertain time of crisis. In addition to sound legal advice we offer these young people, many of our clients appreciate the touch of mentoring we can also provide. Remarkably, the parents of these clients often call to express thanks for helping them direct their child during a time when their child did not want direction. In these situations, helping parents parent is our privilege and we take it very seriously.

I thoroughly enjoyed talking with this young man. I could tell he took my advice to heart and might even try the old-school approach to finding a job. I wish him luck and hope he calls again.

Empathy Breeds Success

Assisting clients toward a successful resolution of their criminal case requires great empathy. Understanding client needs, both short and long term, means a criminal lawyer must walk a mile in their client's shoes while maintaining objective professionalism. Trouble comes when the lawyer fails to invest empathy in their client's case, thereby failing to view the case from the client's perspective.

When criminal defense lawyers empathize with their clients they are better equipped to offer encouragement and sound legal advice. Recently, I accepted the case of a gentleman who had recently terminated his relationship with a prior attorney because the attorney had not maintained good communications. Our first objective was to demonstrate empathy for the client by promptly responding to his questions, returning his phone calls, and becoming aggressive in our motions practice. After a short period of time the client was noticeably more confident and appreciative of the effort being invested in his case. Remarkably, the tenor of his letters became hopeful as he recognized someone understood his point of view. All that was needed was empathy.

Walking in the client's shoes can consume a lot of time. It also takes a focused effort and a willingness to invest a bit of ourselves in each of the clients we accept. In the long run empathy pays off - certainly for the client- but also for the lawyer since we know we left nothing on the table at the end of the day.

Pursuit of Excellence

The pursuit of excellence in criminal defense work is a daunting task. Excellence requires constant attention to detail and a healthy sense of perfectionism as we go about our daily tasks. Frequently, we may be discouraged when we fail to see the fruit of our labor. But the pursuit must go on nonetheless. Our clients deserve it since we never know when the payoff will occur.

Take, for instance, the case of a young client who was facing the threat of a driver's license suspension a few weeks ago. The police officers were subpoenaed and the proof of subpoena service was in the file - a testament to my hard-working process server and legal assistant. When we appeared for the hearing one of the officers failed to appear. The administrative judge asked for the proof of service and promptly dismissed the case against the client. Had the routine tasks of subpoena service and document filing been neglected - the client's driver's license would surely have been suspended. The young client's surprise and gratitude made the victory all the sweeter.

So press forward and develop a keen eye for excellence in criminal law practice. Our efforts will always bear fruit - even if we do not enjoy the shade from the tree we planted from seed. Remember someone will find refuge from the noonday sun under the leaves of that tree and be thankful you had the wisdom to plant it there.

Integrity Still Counts

I was reminded today of the continuing value of personal integrity in the practice of criminal law. Integrity manifests itself in many different forms. Returning phone calls promptly, treating opposing parties with respect, and treating people the same way inside the courtroom as you treat them outside. Our personal integrity not only says something about who we are, it also reflects our respect and value of others.

When people know we value them, they often respond with random acts of kindness. My client benefited from such a random act of kindness today. Not because of something he did himself, but because of his defense lawyer's commitment to personal integrity and simple good manners. That random act of kindness will follow him the rest of his life - I am glad for him.

Value others and you will be known for your personal integrity. It does not happen overnight, but rather over the course of the years. It is wrapped up in consistency and a genuine love for others. It will not only add to the value of your own life, but will add immeasurable value to the good people we serve in our great profession.