Football Coach Acquitted

I've stirred up some conversation with my Facebook friends concerning the recent acquittal of Jason Stinson of reckless homicide. If you recall, Coach Stinson was coaching high school football in the great state of Kentucky when, during summer sessions in 2008, a 15 year old player, Max Gilpin, collapsed and later died of heat stroke.

I was always troubled by this prosecution. Not because I'm a closet law breaker, but because the idea of charging a coach for running a difficult (maybe brutal) summer practice for a crime was inherently suspect. I say inherently suspect because I endured summer football sessions when I was in high school, running sprints, bear crawls, and the like without water in 90 degree heat. In fact, basketball practices were not not much easier although winters in central Pennsylvania kept us cozied-up inside the warm (and sometimes sweltering) gymnasium.

Those days were different, of course, and times have changed coaching practices as medical research revealed the need for proper hydration and protection from the elements for players. Nonetheless, I suspect the Kentucky high school that hired Stinson expected him to work the players hard, develop their mental and physical toughness, and play to win. Running wind sprints, gassers, and bear crawls was part of that process. I don't fault the coach for working his players hard . . . even past, what they believed, were their physical limits.

Max Gilpin's death was tragic, without question. But the use of governmental power to pursue his conviction was unreasonable. Sure, the Gilpin family probably supported the prosecution whole-heartedly. But a prosecutor is not bound by the will and wishes of an alleged victim (or their family). I guess if you want to protect your political future, you bow. But a prosecutor must also be cognizant of community standards and the chilling effect a prosecution might have on lawful activities. This is even more evident in the Stinson prosecution as the evidence clearly showed the Gilpin boy was taking amphetamines (Adderall) which affected his body's ability to regulate its own temperature.

Anyway, I was glad coach Stinson was acquitted, but equally saddened by the loss of Max Gilpin. I hope all prosecutors will step back from their cases and make sure they prosecute citizens for crimes and not terrible accidents. When we start seeking convictions to make a point, rather than to seek justice, we're heading down a slippery slope very quickly.

The Governor's Veto Pen

During the recent 81st Texas Legislative Session, Governor Rick Perry stayed true to form by vetoing a number of criminal justice bills sent to him for signature which benefitted the defense bar. My guess is the powerful Texas prosecutor lobby, TCDAA, had a hand in many of these vetoes. Here's a short list of bills Perry struck down that aided those accused of crime:

1. HB 3148 would have expanded the authority of judges to waive or reduce sex offender registration for young offenders;

2. HB 3481 would have expanded the ability to obtain expunction to defendants charged with misdemeanors that were not presented within 180 days after arrest and defendants against whom the statute of limitations had expired;

3. SB 223 would have allowed a person who successfully completed a term of deferred adjudication probation to become eligible for a pardon, followed by potential expunction. (currently, those who complete deferred are not eligible for a pardon); and my personal favorite . . .

4. SB 488 would have created a crime for failure to allow three (3) feet of operating room between vehicles and "vulnerable road users," including bicycles, runners, highway workers, and stranded motorists.

So there you go. And by the way, one new crime of interest that became effective September 1, 2009 is the use of a wireless device (e.g., a cell phone) in a school crossing zone. That can get you up to a $200 fine. Funny the Texas Legislature did not pass a total ban on cell phone usage while driving. I bet it's because the law makers use THEIR cell phones all the time while driving.

The Loss Of Privilege Redux

From reliable sources I learned that feathers ruffled from my recent post on the loss of privilege when a "professional" becomes aware of "child abuse" during their professional interaction with clients, patients, and the like. What really got someone upset was my vehement position on the defense lawyer's duty of loyalty toward their client, even concerning communications about possible child abuse. Here's my quote:

"Rest assured, I believe my duty of loyalty to a client trumps even the duty to report. Over my dead body will the government compel me to reveal communications made by clients in confidence."

First of all, persons need to know when they call me to discuss legal problems what they tell me will remain confidential. That's lawyering 101. If a client wasn't assured communications were secret, the chilling effect upon attorney/client relationships would be devastating. No one would trust anyone, including their lawyer. Beyond this, the last thing a paying client wants to hear is what they just revealed to their lawyer will now be revealed to the police.

Rest assured if someone called me explaining they were in the midst of criminal activity, of any kind, my first instruction would be to terminate the criminal activity immediately. I'm a loving father and certainly encourage the protection of children from any abuse. In fact, the ethical rules to which I am professionally bound require me to reveal a confidential communication "[w]hen the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act." But this ethical rule pertains to future criminal acts. What about past acts, particularly involving child abuse?

The feather ruffling issue was whether lawyers have a duty to report "past" acts of child abuse after a client consults with the lawyer for their professional services. In particular, what was my personal duty if someone called me on the telephone, told me they had sexually molested a minor child, and needed my professional legal services to protect them? My position last week was "hell no." However, after consultations with my reliable sources and another look at the Texas Disciplinary Rules of Professional Conduct I might need to qualify my "hell no."

The ethical rules also say: "A lawyer may [not must] reveal confidential information: 'when the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.'" So, is Section 261.101 of the Texas Family Code "other law" compelling me to reveal private information otherwise protected? My professional instinct says no. But I'm willing to leave the question open for a time and allow my reliable sources to help me figure this out.

It's a difficult question. It also directly effects my practice of criminal defense law and the practice of law for thousands of professional colleagues all over the state facing similar ethical dilemmas. We'll revisit this again soon.

A Pitcher's Life

A pitcher spends much time waiting. Waiting on the warm-up call. Waiting on the call to the mound. Waiting on the catcher's sign. When the call comes he heads to the mound all eyes upon him. Each pitch a work-of-art. No works-in-progress. Each batter an adversary to vanquish. Each swing . . . each crack of the bat . . . an unknown. Either the hero or the bum. That's the life of a pitcher. I know one. I understand his life. It IS the thrill of victory. It IS the agony of defeat.

I love the pitcher's life. Not because I am one, but because my life's work is like one. Waiting on the call. Waiting to respond. All eyes upon me. Adversaries to vanquish. Works-of-art. Often the hero, sometimes the bum. Unknowns. The risk. Willing to fail but always working to win.

Yea. I understand the pitcher. He's an artist. He's a warrior. Tough minded. Yea. I know the pitcher's life. I respect him. He lays it out there for all to see. In victory and defeat I love the pitcher's life. The pitcher is me.

The Loss of Privilege

A potential new client (PNC) contacted my office recently. He was concerned about his recent communication with a member of the clergy from whom he'd sought spiritual advice. Seeking absolution with the assistance of his spiritual adviser, the PNC confessed, in confidence, an inappropriate sexual contact with a minor child.

If you read Article V of the Texas Rules of Evidence (concerning privileges) you'll find several rules about the admissibility of statements made to certain persons. For instance, communications made in confidence to your lawyer generally cannot be disclosed. Statements made in confidence to your spouse generally cannot be disclosed. And statements made to a member of the clergy generally cannot be disclosed.

Unfortunately for my PNC, and others similarly situated, there are other rules and statutes trumping the evidentiary rules of privileges. For example, if a person obtains the services of a lawyer to enable or aid anyone to commit a crime, the government can compel the divulging of those communications. Furthermore, the spousal privilege does not apply in situations where the communications concern a crime against the other spouse or any minor child. Finally, a major exception to the rules of privilege relate to the "duty to report" provisions of Texas Family Code.

Section 261.101 of the Family Code compels the reporting of "child abuse" by just about everyone on the face of the planet. In particular, "professionals" are required to personally report the occurrence of child abuse. Following is a quote from the Code concerning this duty:

(b)In this subsection, "professional" means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

(c) The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services.

Note section "c" destroys the privileged communications occurring with your pastor, social worker, mental health professional, and yes, even your lawyer. Dangerous stuff. In fact, my PNC is not the first person contacting my office to discuss privileges and the duty to report. I've had this discussion with pastors at my church, accountants, and others facing similar dilemmas.

Rest assured, I believe my duty of loyalty to a client trumps even the duty to report. Over my dead body will the government compel me to reveal communications made by clients in confidence. But others must be cautious to whom they reveal private information, especially when it involves alleged child abuse of any kind. If you have any questions, call and ask. I promise I will never tell!

Conservative Bias Alive and Well

Conservative bias is alive and well. Being one myself (a conservative, that is) I support tax breaks for business, strict constructionism, outlawing abortion, prayer in schools, limited government, and yes, even the U.S.-Mexico border fence. I voted for George W., Sarah Palin, and I don't believe water-boarding is necessarily torture. However, my life as a defense lawyer has brought me into contact with the underside of our affluent, gluttonous society. Many on the underside are from other countries, other cultures, other ethnicities.

Cultural sensitivity was the theme of several posts of late. Not really a conservative tag-line, but a required mindset for those taking oaths to zealously defend the criminally accused. Following my post about the Mexican national whom we recently defended, I received the following anonymus comment:

What utter nonsense! How far do you think we should take this cultural sensitivity? Should we allow rural Nigerians to stone witches to death like they do in their home country? How about honor killings, that Muslims do when their women "dishonor" the family? Is that ok? How about polygamy? Any problems there? Should we allow Afghans to lock their women in the house and not allow them medical care or education? How about equal treatment under the law? That means that American 19 year olds don't get to boink 12 year old girls in this country, and neither does anyone else. I don't recall being a foreigner being a defense in the penal code. If the person is in the country legally, he took an oath to obey the laws, and if he isn't, then he needs his ass deported. Bottom line, if they come here, they need to obey our laws. No exceptions.

Following the short essay in which I used Billy Hayes as a preamble before discussing fair treatment of foreigners within the American criminal justice system, I got this comment after sharing facts about a Zimbabwean man I represented last year:

My attitude is short sighted? Why is that? So they were here on student visas, but she can't speak or understand English? Didn't that make it sort of hard for her to go to school? Or did they have Shona ESL for her? Hell, maybe abandoning their child wasn't really a crime, it was some sort of Zimbabwean cultural ritual? Maybe they were teaching the kid to find its way home by celestial navigation? Its always amazing to me how you libs that abhor the thought of America being a superpower or of being a world leader or of having the premier military in the world are always so anxious for us to be the super nanny state of the world and provide cradle to grave everything to everyone, regardless of whether they belong here or not or regardless of whether we can afford it or not. The only good thing about it is that American taxpayers are starting to get tired of their wallets being raped daily to pay for all this liberal crap. The easiest way to solve that problem would be to put the bunch on the nearest plane bound for Zimbabwe and get their visas revoked. End of our problem and it saves money too. And now you are going to whine about oh their rights might be violated. Wrong, having a student visa is not a right, its a privilege and it can be revoked at any time. Bottom line, if I break the law, I get arrested for it and my life is messed up bigtime. Foreigners that come over here legally and break it should be sent home as soon as possible. People here illegally need to do their 6 months federal time and then be criminally deported so they can get 20 years federal time if they get caught here again. I wonder if you have looked into those border areas where illegals caught are jailed for 6 months? Amazing how illegal border crossings in those areas have dramatically decreased. But I bet you would probably lose money representing these people if any of that happened, right? We have a duty to treat our own citizens fairly, and perhaps if we weren't shelling out to support the citizens of so many other countries, we might actually have the funds to take care of our own problems.

This is what we call law-and-order bias in our vernacular. Typically a conservative malady. However, I don't mean to suggest all conservatives suffer with this affliction. Quite a few lefties do, too. Nonetheless, a large part of my skill as Bryan|College Station defense lawyer is used to identify the bias and eliminate it with the all powerful peremptory strike or challenge for cause. I'm sad though, that so many closets are filled with these misconceptions. As a Bible thumping conservative, though, I'll take time to pray for their understanding.

Does Anyone Remember Billy Hayes?

Who remembers Billy Hayes? Oh yea. He was the guy who got caught allegedly smuggling hashish out of Turkey in 1970. For you movie buffs, Billy Hayes' story was chronicled in the 1978 film, "Midnight Express."

A harrowing tale, to say the least. Billy is caught at the Istanbul airport with 5 pounds of hash strapped to his belly. He is tried in a strange legal system, betrayed by corrupt lawyers, and toyed with by capricious judges. He was originally sentenced to about four years in prison, but later his prison term was enhanced to 30. After 5 years imprisonment, Billy Hayes escaped to Greece from his Turkish hell hole.

Besides being a great movie (with a great soundtrack, btw), what's Billy Hayes have to do with the price of tea in China? Well, imagine a friend or loved one arrested in a foreign country. Would we demand the justice system ensured our friend understood the proceedings in their native language, that they were represented by lawyers and investigators who understood American background and culture, and that they were able to consult with representatives of the United States government as part of the process? I bet we would and I doubt if Billy Hayes was afforded this basic due process.

Now imagine you are from Mexico, from China, or from Zimbabwe. You come to the United States and get charged with a crime. Will you get the procedural due process we expect for our friends and family accused in a foreign country? Maybe not bro. In fact, although the American system of justice is designed to provide this basic fairness, not all accused foreigners are getting it. They are put to trial without interpreters and are represented by lawyers who don't realize (or don't care) about the importance of cultural and ethnic issues in the zealous defense of their clients.

So what do we do then? Well, part of our job as patriotic Americans is to ensure our system provides this basic procedural fairness to people from other countries, cultures, and ethnic backgrounds. When you are called to jury duty and a foreign national in on trial . . . ask the questions. Does this guy need a interpreter? Does the defense lawyer understand the cultural issues involved in the case? And don't assume the judge gets it - they often are just as clueless.

Top 20 iPhone Applications For Attorneys

Some of these Top 20 iPhone Apps for Busy Attorneys have been supplanted by the latest iPhone software update (3.0). But they might be worth a look, nonetheless.

Criminal Harassment . . . Or Just Bad Manners?

Ok. They charged my guy with harassment. For those interested souls, the Texas harassment statute is found in section 42.07 of the Texas Penal Code. If you don't care about the code, then just sit in and listen.

Harassment can be charged in multiple ways. In this case, the bad guys say my client initiated a written communication with a person and during the communication made an "obscene" comment. Specifically, they say my client sent the person a "hand-drawn" depiction of the female genitalia with the caption, "Can I lick you, Katie?"

With the hope of not getting charged with harassment myself, let me say this is family oriented blog. The quote above is from the public record and open to public scrutiny. Any 12 year old can go up to the county court house and pull this file.

Now, the harassment statute defines "obscene" in a most peculiar way. Obscene means a writing "containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function." (funny, my spellcheck doesn't understand half of these words) Nonetheless, patently offensive is not defined and the law provides no guidance as to its meaning.

Certainly, my grandmother might be shocked by such an image and suggestion. But my dad, and probably my wife, would care less. So who's sensibilities is this statute designed to protect? That's the problem. There are no guidelines for law enforcement. Furthermore, people of ordinary intelligence cannot discern what type of conduct is actually prohibited by the statute. Patently offensive is open to unlimited interpretations . . . what might be offensive to one person might not be offensive to another. This is called vague and over-broad for those interested legal eagles.

And what about our constitutional right to write (and draw, I suppose) what we want? That's called free speech in this country and is protected by the U.S. Constitution. Specifically, a case entitled Miller v. California set the standard for what is obscene in America. The Miller case incorporated a community standard of decency and consideration of a writing's literary, artistic, political, or scientific value . . . all qualifications the Texas harassment statute does not include. At least under Miller, a jury would have some needed guidance in determining the limits of one's writing and drawing prowess.

So, does the prosecutor have a point, or does my client simply have bad manners? I'd love to hear what you think? (Becky, this means you, too)

Cultural Bias Among Judges, Juries, & Prosecutors (I)

How much cultural bias exists within the American justice system? Among judges?Among juries? And how about the prosecutors who decide what and when to charge persons of different ethic backgrounds with crimes? Let's look at judges today. We'll examine juries and prosecutors in later posts.

Despite our impression Lady Justice is blind, racial and ethic bias exists among judges. I'm sure few judges would admit to personal bias. However, everyone has it . . . even judges. Even though most judges pay close attention to the merits of a particular case, their different (cultural) life experiences lead to different interpretations of facts and circumstances they are called upon to adjudicate.

The solution? Possibly comprehensive diversity training for judges to address their "decision-maker" bias. Maybe the installation of procedures for identifying and sensitizing judges to their personal cultural prejudices. Perhaps judges should get out into their communities more often and develop sharper cultural sensitivity.

First, and foremost however, judges must realize they possess cultural bias. They must realize their personal prejudices effect how they interpret facts and circumstances . . . especially when the circumstances involve persons of different ethnicity from themselves. Lastly, they must learn how to fairly approach situations in court which encompass their prejudices and assumptions.

Culture Issues In Criminal Defense Work

Recently we defended the interests of a Mexican national charged with the aggravated sexual assault of a child. The client was a 22 year old illegal alien who, at the age of 19, had impregnated a 12 year old girl also of Mexican descent. Once the girl gave birth, police authorities intervened, identified my client as the father, and began a prosecution for one of Texas' most serious sexual offenses.

As the investigation progressed, we quickly learned the client and alleged victim were in a romantic relationship. The client had approached the girl's parents and asked permission to see her. The parents were also Mexican nationals who had come to the United States many years ago looking for a better life. Their cultural background based in rural Mexico influenced their world-view. They were happy to allow their 12 year old daughter to see my 19 year old client.

From my perspective (as a white American born male) the age difference between the client and his girlfriend seem too unreasonable. However, I started to research the cultural norms in Mexico regarding dating and marriage. Surprisingly, I found that in rural Mexico young men of my client's age, and young girls hardly teenagers, regularly began to date and marry.

Clearly, my client's world-view, and that of the girl, were shaped by Mexican cultural influences. My client was not a sexual predator as the prosecutor tried to depict him. Rather, he was young man isolated by language barriers, economic barriers, and cultural barriers who fell for a young girl . . . not unlike relationships developing everyday in rural Mexico. We hired a cultural expert who helped the jury understand the motivation behind the client's behavior. Although we were unsuccessful in persuading the jury to acquit on the sexual assault charge, we were successful in convincing them that probation was the appropriate punishment result. Rather than the 15 years hard time the prosecutor asked for, the client received 10 years probation.

In future posts I'd like to explore the issues of cultural defenses in more detail. Cultural influences shape the way individuals perceive reality and thus guide their decisions. Judges and juries must be educated in this regard to assure the American justice system works fairly and equitably when persons from different cultures allegedly commit crimes in the United States.

Go Green Death

Coach, the "politically correctness police" are not welcomed here either.  So saith the former coach of the Scituate "Green Death" soccer team.  In an email to players and parents, Coach Michael Kinahan explained he wanted to develop soccer players who "kick ass and take names on the field, off the field, and throughout their lives. I respect Coach Kinahan's approach and teach these principles to my children. It's also the only way to thrive in the competitive world of criminal defense law practice. Out of my high regard for the Coach, below is his email in its entirety.  It is worth the read.

Congratulations on being selected for Team 7 (forest green shirts) of the Scituate Soccer Club! My name is Michael and I have been fortunate enough to be selected to coach what I know will be a wonderful group of young ladies. Chris Mac will also be coaching and I expect the ever popular Terry to return to the sidelines. Our first game will be Saturday April 4 at 10:00AM. There will be a half hour of skills followed by a 1 hour game, so total time will be 1.5 hours. All games will be played on the fields in the front of the High School. Each player will be required to wear shin guards and cleats are recommended but not required. A ball will be provided to each player at the first meeting, and each player should bring the ball to games and practices. There is no set practice time allotted for the U8 teams, but I will convene with the coaches to determine the best time and place. If there are cancellations due to rain, all notices will be posted via the Scituate Soccer Club website, no calls will be made (though I will try to send an email). Attached is the Schedule and Code of Conduct. After listening to the head of the referees drone on for about 30 minutes on the dangers of jewelry (time which I will never get back), no player will be allowed to play with pierced ears, hairclips, etc. We used to tape the earings, but that practice is no longer acceptable. Please let me know if your child has any health issues that I need to be aware of. My home phone is 781 XXX XXXX, my cell number is 781 XXX XXXX, and I check my email frequently. According to my wife, my emails get too wordy, so for those of you read too slowly, are easily offended, or are too busy, you can stop here. For the others……

OK, here’s the real deal: Team 7 will be called Green Death. We will only acknowledge “Team 7” for scheduling and disciplinary purposes. Green Death has had a long and colorful history, and I fully expect every player and parent to be on board with the team. This is not a team, but a family (some say cult), that you belong to forever. We play fair at all times, but we play tough and physical soccer. We have some returning players who know the deal; for the others, I only expect 110% at every game and practice. We do not cater to superstars, but prefer the gritty determination of journeymen who bring their lunch pail to work every week, chase every ball and dig in corners like a Michael Vick pit bull. Unless there is an issue concerning the health of my players or inside info on the opposition, you probably don’t need to talk to me. Coach MacDonald has been designated “good guy” this year. Some say soccer at this age is about fun and I completely agree. However, I believe winning is fun and losing is for losers. Ergo, we will strive for the “W” in each game. While we may not win every game (excuse me, I just got a little nauseated) I expect us to fight for every loose ball and play every shift as if it were the finals of the World Cup. While I spent a good Saturday morning listening to the legal liability BS, which included a 30 minute dissertation on how we need to baby the kids and especially the refs, I was disgusted. The kids will run, they will fall, get bumps, bruises and even bleed a little. Big deal, it’s good for them (but I do hope the other team is the one bleeding). If the refs can’t handle a little criticism, then they should turn in their whistle. The sooner they figure out how to make a decision and live with the consequences the better. My heckling of the refs is actually helping them develop as people. The political correctness police are not welcome on my sidelines. America’s youth is becoming fat, lazy and non-competitive because competition is viewed as “bad”. I argue that competition is good and is important to the evolution of our species and our survival in what has become an increasingly competitive global economy and dangerous world. Second place trophies are nothing to be proud of as they serve only as a reminder that you missed your goal; their only useful purpose is as an inspiration to do that next set of reps. Do you go to a job interview and not care about winning? Don’t animals eat what they kill (and yes, someone actually kills the meat we eat too – it isn’t grown in plastic wrap)? And speaking of meat, I expect that the ladies be put on a diet of fish, undercooked red meat and lots of veggies. No junk food. Protein shakes are encouraged, and while blood doping and HGH use is frowned upon, there is no testing policy. And at the risk of stating the obvious, blue slushies are for winners. 

These are my views and not necessarily the views of the league (but they should be). I recognize that my school of thought may be an ideological shift from conventional norms. But it is imperative that we all fight the good fight, get involved now and resist the urge to become sweat-xedo-wearing yuppies who sit on the sidelines in their LL Bean chairs sipping mocha-latte-half-caf-chinos while discussing reality TV and home decorating with other feeble-minded folks. I want to hear cheering, I want to hear encouragement, I want to get the team pumped up at each and every game and know they are playing for something. Lastly, we are all cognizant of the soft bigotry that expects women and especially little girls, to be dainty and submissive; I wholeheartedly reject such drivel. My overarching goal is develop ladies who are confident and fearless, who will stand up for their beliefs and challenge the status quo. Girls who will kick ass and take names on the field, off the field and throughout their lives. I want these girls to be winners in the game of life. Who’s with me? 

Go Green Death!

Much of "Forensic" Science Unreliable

Juries are awed by forensic science in the courtroom. Fingerprint comparison, DNA, handwriting analysis, ballistics, blood-splatter, shoe print comparison, etc. Prosecutors across the county depend upon this evidence to obtain convictions and juries are conditioned by television shows, like CSI, to expect it. However, a recent report from the National Academy of Sciences says much of what passes for forensic "science" does not meet minimal scientific standards. Yet, when forensic scientists testify in court they are often shamefully overconfident about their "scientific" findings.

Following are several significant problems identified by the study:

1. Bias: Forensic scientists are often exposed to information which fosters bias in their stated opinions. That is, forensic "scientific" tests are rarely performed "blind." The examiner knows what they are supposed to find in the samples, which effect the outcome of their testing. Contrast this with doctors who test a new medicine. They are not told which patients are taking the medication and which ones are receiving placebos. This is appropriate "blind" testing and eliminates bias.
2. Error Rates: Most forensic sciences lack good information about how often examiners make mistakes - a basic requirement of any good science. Experts testifying in court often claim error rates for their technique is zero. Preposterous! Even the best of scientific techniques have an error rate. Without objective information about a technique's rate of error a jury cannot properly assess the credibility of the information.
3. Over-claiming: The only forensic science making regular use of probabilities is DNA profiling in which experts testify to the probability of a match. None of the traditional forensic sciences (ballistics, fingerprints, fiber analysis, or handwriting) currently have the necessary statistical foundation to establish accurate probabilities. Adding insult in injury, experts who testify are allowed to claim their methods are 100% accurate. Again, preposterous.
4. Structural Independence: The cops and prosecutors employ and pay the experts who testify in court. Do you believe these experts might have difficulty maintaining their professional independence from police and prosecutors who put food on their tables? I dare to say, yes.

So what can be done to control this "out-of-control" system leading to the condemnation of thousands of accused persons each year?

First, judges presiding over trials in which forensic evidence is used must exercise their role as gatekeepers to protect the integrity of our criminal justice system. They do this by requiring higher standards for forensic science when used as legal evidence. They should prohibit experts from testifying to impossibilities like "zero" error rates. They should compel the experts to establish the reliability of their scientific techniques with peer review and other methods establishing the credibility of their testimony.

Second, the criminal defense lawyers who defend the accused must object to the use of forensic evidence until the proponent proves its scientific reliability. That means the defense lawyers must learn about the forensic methods being used, learn about the scientific pitfalls, and raise objections in court based on established case law requiring judges to make findings of reliability. Finally, they must hire their own defense experts to dispute the prosecutor's evidence and cast doubt upon its credibility.

Our justice system demands no less.

Texas Criminal Appeals

Several new appeals came into the office this year.  Fortunately, my clients possessed the presence of mind to call early in the appeal process to preserve as many of their rights as possible. The appellate timetable is unforgiving and must be complied with strictly to preserve one's right to review.  Criminal defense lawyers, and prospective appeal clients alike, must be familiar with the time limits applicable to criminal appeals in Texas. 

A plea bargain, where the trial judge does not exceed the punishment recommendation from the prosecutor, usually waives the defendant's right to appeal except for matters raised by written motion and ruled upon prior to the plea.  Motions to suppress evidence, for instance, are examples of such appealable matters.  Most appeals, however, result when a criminal case is contested and fought-out before the trial judge or jury. The defendant appeals the conviction itself and errors committed during the punishment phase of the trial. 

One's sentencing date is the key point in the appeal process.  Most time limits imposed upon the defendant in a criminal appeal begin to run on the day a person is sentenced. In general, the defendant has 30 calendar days in Texas to file a motion for new trial or to file a notice of appeal which vests jurisdiction in the appellate court. 

A motion for new trial is the best way to develop non-record claims such as ineffective assistance of counsel, disproportionate sentences, or juror misconduct.  Other possible claims raised in a motion for new trial include the denial of counsel, the misdirection of the jury, defense witnesses prevented from appearing in court, or evidence tending to establish a person's innocence being intentionally destroyed or withheld.  Also, any time the verdict is contrary to the law and evidence a claim can be raised in the motion for new trial. 

The notice of appeal must be filed within 30 calendar days of sentencing unless a timely motion for new trial was filed. This extends the deadline for perfecting appeal to 90 days after sentencing. After the appeal is perfected the "reporter's record" (i.e. transcript) must be requested and a "designation for material" (e.g. exhibits) filed with the clerk.  Although the request for the reporter's record and the designation are not subject to the 30 day deadline, it's a good idea to file these papers early to assure the ball is rolling and the appeal is proceeding in a relatively rapid fashion. 

After notice of appeal is filed the defendant may request an appeal bond, provided his sentence did not exceed ten (10) years confinement.  Granting an appeal bond is discretionary with the trial judge.  The judge may also order the defendant comply with bond conditions like regular reporting , a curfew, or other reasonable conditions.

If you have any questions about appealing a criminal case in Bryan|College Station, or other jurisdictions in Texas, please contact the Texas Criminal Appeal Attorney immediately to discuss your case. 

Defending a Child's Accusation of Sexual Abuse

Defending a child's allegation that Daddy or Uncle Bill "touched my private" or "made me touch his bottom" is an incredibly daunting task. Prosecutors, police, child protective services, and the general public believe young children rarely conjure-up these allegations out of nowhere. However, there's a reservoir of research showing young children are susceptible to suggestive interviewing techniques by local child advocacy center employees, or even the police, who question a child once an outcry of this nature surfaces.

Research on suggestive interviewing techniques has identified six types of interview behaviors associated with false outcries of sexual abuse. These interview behaviors are as follows:

1. Positive Consequences - Giving, promising, or implying praise, approval, agreement or other rewards to a child, or indicating the child could demonstrate desirable qualities like helpfulness or intelligence, by making a statement to the interviewer;
2. Negative Consequences - Criticizing or disagreeing with a child's statements, or otherwise indicating the statement was incomplete, unbelievable, dubious, or disappointing;
3. Other People - Telling the child the interviewer has already received information from another person regarding the topics of the interview;
4. Questions Asked and Answered - Asking the child questions already unambiguously answered in the immediately preceding part of the interview;
5. Inviting Speculation - Asking the child to offer opinions or speculation about past events or framing the child's task during the interview as using imagining or solving a mystery; and
6. Introducing Information - Introducing information not previously mentioned by the child. The new information in either an interviewer's statement or question represents a substantial addition or discontinuity with the child's previous statements.

These six suggestive interviewing techniques are by no means an exhaustive list of all the different ways a forensic interviewer might impose suggestive questioning on a child. However, these techniques are typically the primary focus of forensic analysis of child "victim" interviews.

Sexual assault defense lawyers need training to recognize a suggestive child interview. The better practice is to hire experts in the field to evaluate and critique an interviewer's questioning of a child. If necessary, the experts can testify at trial, or inform prosecutors, that an interview was tainted by poor methods and technique.

Arrogance Raises Its Head Again in Brazos County

Precinct 3 Justice of the Peace, George Boyett, was recently admonished by the Texas State Commission on Judicial Conduct after taking the law into his own hands by ordering a Texas A&M student into his courtroom following a traffic incident involving the judge and student.  It was the third admonishment received by the judge from the Judicial Conduct Commission.  (read the full story in the Bryan Eagle)  Judge Boyett's jurisdiction includes much of the Texas A&M campus and students attending the University should be aware of his public record for violating provisions of the Texas Code of Judicial Conduct.  

During the investigation of the current incident, Judge Boyett was found to have "acted in a manner that failed to promote public confidence in the judiciary."  Further, he was found to have "used the prestige of his office to advance his private interests."  And finally, he "did not act in a 'patient, dignified and courteous' manner toward those in his courtroom."  

Several of the comments on the newspaper's story are worth repeating:

"This is the type of behavior that gives public officials a bad reputation in general. I think a 3 strikes and you're out rule should be considered by State Commission on Judicial Conduct. Boyett clearly does not show the restraint necessary for any Judge. Talk about road rage. I am delighted to say I have never met this man. I hope that remains the case." 

"I have known this jerk for more years than I like to mention. He was a jerk from the begining and is still a jerk. He does not belong in a position of authority at any level. have you seen him in the film for defensive driving? It is a total embarrassment." 

"Boyett needs to be removed from office. He's notorious for his abuse of his position. There's certainly conflict of interest, as his office deals with a lot of landlord-tenant issues and guess what? He's a major owner of rental property in the northgate area. "

"This judge needs a good strong opponent to run him in the next election. He needs to be removed from office.

JP Boyett thinks he rules the world, or the part near him, anyway. It's not surprising he did as described. The wonder is he didn't try to jail someone. "

A justice of the peace is a public servant and member of the judicial branch of government, not the executive.  The job of the judiciary is to interpret the law, not enforce it. The bottom line? Judge Boyett has built a track record and reputation for arrogance and discourteous conduct toward those appearing before him.  I agree a strong opponent should run against him in 201o and bring his record to light for the public's evaluation. I know Judge Boyett attempts to bring a sense of strength and accountability to his courtroom by being tough.  But violating the rules of judicial conduct goes over the line, especially the 3rd time around. 

Reversing a Bad Result - Ineffective Assistance of Counsel

Several prospective clients called me recently asking how they can appeal their criminal conviction and sentence resulting from a plea bargain or an open plea to the court (a guilty plea and waiver without a punishment recommendation from the prosecutor). "With great difficulty," I say. A plea bargain accepted by the trial judge waives most of a defendant's rights to appeal. However, there are a few cracks in the armor which potential clients should be aware.

First, a defendant's waiver of rights and plea of guilty must be voluntary. That is, the person's plea must be knowingly and intelligently made. Furthermore, the trial judge must make this finding on the record. However, if a person received ineffective assistance of counsel leading to their decision to plead guilty and waive their rights, a good involuntary plea argument can be fashioned. In that case, the defendant's plea and waiver can be withdrawn and the defendant can start from square one defending the charges against them. There are many ways a criminal defense lawyer might provide ineffective assistance of counsel leading to an involuntary plea. Following are just a couple to consider.

The failure to investigate is a common basis for ineffective assistance of counsel. If the criminal trial lawyer failed to uncover facts about their client's case that, had the facts been known, would have created a "substantial likelihood" the defendant wouldn't have waived his rights but insisted upon a trial, can cause an involuntary plea. The failure to locate an alibi witness is an example of the failure to investigate. The failure to discover a prior conviction, being used to enhance punishment, was void or voidable, is another example.

Another instance of ineffective assistance is when the criminal lawyer provides their client incorrect advice on the law applicable to the case and that erroneous advice leads the client to plead guilty and waive their rights. One example might be where the client is charged with multiple counts of sexual assault upon a child. The trial lawyer tells their client "if you plead guilty and ask the judge to assess punishment the sentences cannot be stacked upon one another, but can only run concurrently." (WRONG!) The client pleads guilty, waives his rights, and the trial judge guts the client with stacked prison sentences. In short, the client's guilty plea was based on the erroneous advice of his lawyer. Had the advice been correct the client would have insisted upon jury trial. That's an involuntary plea.

Another common example of ineffective assistance is when the criminal defense attorney fails to communicate a plea bargain offer made by the prosecutor. Had the plea offer been communicated to the client, they would have accepted it. Although this is not an "involuntary plea" situation, it is yet another way to reverse a bad result for the client based on ineffective assistance of counsel.

Reversing a guilty plea and waiver is tough and technical legal work. Many times, if not most, the attempt is unsuccessful because of the great bias contained within the law toward the finality of convictions. However, a good Texas criminal defense lawyer, experienced in appeals, can sometimes work the miracle a client needs for a second bite at the apple. But critical time limits often apply! Contact an experienced criminal appeal attorney immediately to discuss your case.

The Jury Expert

I am not a consumer of jury consultant services. However, for the well-to-do client, who has money to burn, a jury consultant might be an expense worth incurring on a big case. If you cannot afford the high-priced services of a warm-bodied consultant, then maybe reading a good journal on the subject might serve your interests, as well.

The Jury Expert is a publication of the American Society of Trial Consultants edited by Dr. Rita R. Handrich. Dr. Handrich's goal is to translate social sciences research findings into practical and relevant tools for the trial lawyer. To that end, the journal features articles by academics on their research areas. The journal then gets reactions to those articles by experienced trial consultants who translate the theory into practice. Trial consultant responses to the articles focus on how the research can be used in litigation advocacy.

In addition to articles by academics, The Jury Expert also features practice-oriented articles by trial consultants on a wide array of litigation topics. The journal publishes six times a year and subscriptions are free. Their current issue features articles on cross-examination of narcissistic witnesses; juror reactions to successful women; varying attitudes of liberals and conservatives toward punishment; conceptual persuasion; the relationship between juror damages awards and generation; and more.