Spring is in the air, and courts all over the nation are issuing opinions of importance and moment. Let us take some time to consider these decisions, and how it might impact our various practices.
United States Supreme Court
Manuel v. Joliet
Friends, I am going to do something I once promised never to do. As a writer, I am enamored of William Shakespeare, as he is doubtless among the finest writers who will ever set quill to paper. That being said, Romeo and Juliet, despite being one of his most famous works, is sort of awful. So I am going to squander an opportunity to inject Shakespearean allusion into my column, because the obvious parallel between Juliet and Joliet is puerile, and you deserve better.
As does Mr. Manuel, because this is an important and seminal case in our evolving civil rights jurisprudence, and a little bit of decorum is called for.
During a traffic stop in Joliet, Illinois, police officers searched Mr. Manuel and found a vitamin bottle containing “pills.” Unable to believe their own field test that the pills were nothing illegal, they arrested Manuel, dragged him to the station, and had their evidence tech test the pills, which once again came back as “nothing illegal.” Except that the evidence technician lied through his or her lying teeth, claimed one of the pills tested positive for the presence of “ecstasy” (nota bene: ecstasy is nothing more than a street name for any number of specific chemicals, so that’s like saying the pill tested positive for the presence of “illegal drugs”). The police officer said that based on his (wait for it) “training and experience” he knew this vitamin pill was really ecstasy. On the basis of these statements, a third officer swore out a complaint charging Manuel with possession of “ecstasy” (again, not a real name for a controlled substance), and relying on this sworn statement, a county court judge found probable cause to detain Manuel pending trial.
Manuel spend 48 days in the county slammer until a real lab tested the pills, only to determine that they contained (wait for it) nothing illegal at all. More than two years after the arrest, but less than two years after dismissal, Manuel filed a Section 1983 lawsuit against Joliet and several police officers, alleging that his arrest and detention violated the Fourth Amendment. In keeping with Fourth Amendment jurisprudence, the District Court dismissed the suit, holding that it was time-barred by the applicable statute of limitations, and also holding that under the Seventh Circuit’s precedent, pretrial detention (the county court judge’s determination of probable cause) could not give rise to a Fourth Amendment claim.
Justice Kagan, joined by Chief Justice Roberts, and Justices Kennedy, Ginsburg, Breyer, and Sotomayor, disagree with the Seventh Circuit’s precedent on Fourth Amendment matters and Sec. 1983 claims. In dissent were (of course) Thomas and Alito. More on them later.
Kagan wrote that the Fourth Amendment’s “constitutional protections apply even after the start of ‘legal process’ in a criminal case” meaning “after the judge’s determination of probable cause.” (Slip. op. at page 1).
So why did the Supreme Court break with Seventh Circuit precedent here? Let’s look at how Justice Kagan describes the “traffic stop:”
“Shortly after midnight on March 18, 2011, Manuel was riding through Joliet, Illinois, in the passenger seat of a Dodge Charger, with his brother at the wheel. A pair of Joliet police officers pulled the car over when the driver failed to signal a turn. According to the complaint in the case, one of the officers dragged Manuel from the car, called him a racial slur, and kicked and punched him as he lay on the ground.”
But it gets better.
The technician who said he found the presence of “ecstasy” in the pills lied in his report about the ecstasy (duh). The officer who filed the complaint? Lied about how his “training and experience” allowed him to detect the presence of “ecstasy” in the pills they had earlier illegally seized from the man his cronies had dragged out of a car and beaten while subjecting him to racial abuse.
The laboratory that tested the pills and determined they were not a controlled substance? That happened on April 1, 2011, 13 days after the arrest. But Manuel still say in jail for another month and change, because that’s when the assistant State’s attorney filed the motion to dismiss.
Manuel’s case was originally dismissed in the District Court for the limitations claim (a rather boring argument about when the cause of action accrued, on March 18, 2011, or on May 4, 2011) and because the Seventh Circuit precedent cut off Fourth Amendment claims after the rubber-stamp probable cause determination by the magistrate. But the Seventh Circuit was an outlier in this, as ten other courts of appeals took the opposite view.
Justice Kagan wrote that Manuel should be able to make a Sec. 1983 claim based on the Fourth Amendment for both the violations of his rights pre-legal-process and post-legal-process (in this case, what happened before he saw the magistrate, and how he was detained even after it was known to the government that they had arrested and imprisoned an innocent man).
Justice Kagan wrote: “The judge’s order holding Manuel for trial therefore lacked any proper basis. And that means Manuel’s ensuing pretrial detention, no less than his original arrest, violated his Fourth Amendment rights. Or put just a bit differently: Legal process did not expunge Manuel’s Fourth Amendment claim because the process he received failed to establish what the Amendment makes essential for pretrial detention—probable cause to believe he committed a crime.” In a footnote, Justice Kagan makes sure to respond to the dissenter’s objection that perhaps some other form of pretrial due process (a grand jury or examining trial) should cut off Manuel’s right to sue. Kagan picks this argument apart by saying that no principled line can be drawn between the magistrate’s probable cause determination and the determination of the grand jury or examining magistrate. There could be no probable cause to detain Manuel – the cops lied, Manuel sat in jail illegally, end of story. Only the jury trial itself changes the algebra – once the jury trial has concluded, only the Due Process Clause of the Fourteenth Amendment provides a basis for attacking the sufficiency of the evidence.
The Supreme Court remanded to the Seventh Circuit to discuss the propriety of the date of accrual of the claim, so there is still a chance poor Mr. Manuel will get poured out of court, but at the very least, we now know that a Fourth Amendment violation can be raised as the basis for a civil rights claim at any time before criminal trial has begun.
Both Thomas and Alito wrote separate dissents, though Thomas joined with Alito. Justice Thomas would hold that an “initial appearance” before a magistrate effectively cuts off any Fourth Amendment claims if the prosecution is later dismissed. In his view, once the magistrate decides probable cause, there is no right to review of that determination short of a jury trial.
Justice Alito’s dissent, on the other hand, would not necessarily cut off post-legal-process Fourth Amendment claims, but states rather that Justice Alito would not extend Fourth Amendment civil rights claims to the entire period that a person is detained pending trial because it “stretches the concept of seizure.” Cold comfort to someone so “seized” by the criminal justice system that they remain in a county jail, but beyond that, it does not jive with existing case law. A person remains “seized” for their Fifth Amendment rights as long as they are within state custody; we would not expect that police officers may go up to a person on day 1 of their pretrial incarceration and interrogate them without reading their Miranda rights. Nor would we expect that police officers may do so on day 100 of their pretrial incarceration. The person remains “seized” by the government. So at least this author does not buy Alito’s reasoning in the dissent, part II A, where he says the “ordinary meaning” of the term seizure implies a distinct event in time. I see, and I believe the majority does as well, that a “seizure” is an ongoing action.
What’s the really sad part of all of this? Manuel would not have had much of a claim if he had been given a reasonable bond and not detained for 48 days. Law enforcement and prosecutors’ dogged insistence that even those charged with minor drug crimes sit in county jail awaiting trial came back to bite them here, as it should. Pretrial detention is not to be used as an “alternative” form of punishment.
Court of Criminal Appeals
Ex parte Owens III
Sometime in 2012, a DPS analyst in the Houston Crime Lab Division got himself in a mess of trouble by dry-labbing two tests (for those not familiar with the lingo, dry-labbing is where an analyst uses test results from one case to justify the results in another, i.e., lying about what you did at your job.
As a result, quite a few drug cases throughout the Houston area were suddenly tainted by bad lab reports, and the Court of Criminal Appeals has been struggling with the ever since. One single lab flunky, two inappropriate tests, and a slew of cases that will forevermore shape the post-conviction jurisprudence of this state and immortalize that lab technician in the legal records of Texas. Damn.
Mr. Owens the Third’s case was, on its face, very much like the cases in which the Court of Criminal Appeals has said, “yeah, this lab tech bungled his job, so your plea was involuntary, new trial.” See Ex parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014) for the style case on the matter. (Full disclosure: back when I was a young buck prosecutor, I worked on some of these cases, though not the one at issue.). In Mr. Owens’s case, he was pulled over for a traffic violation, the officers smelled burnt marijuana, and conducted a search of the vehicle, which led to the discovery of pot and a pistol. Mr. Owens admitted to officers that the pot was his.
Mr. Owens pleaded guilty to possession, a state jail felony, and received probation. Two months after his sentencing, Mr. Owens was arrested in North Carolina for peddlin’ pot, and Harris County moved to revoke his sentence. Mr. Owens pleaded true to the revocation allegations, and received a sentence of 180 days in jail. The lab technician did actually test the pot in his case.
Coty established five factors that a habeas application must demonstrate to be entitled to relief under the theory that a lab technician bungled the handling and testing of evidence – (1) the lab technician must be a state actor; (2) the tech must have committed multiple instances of misconduct in other cases; (3) the technician must be the same technician that worked on the present case; (4) the misconduct must have been of a type that would have affected the evidence in the present case; and (5) the tech must have handled and processed the evidence in the current case in roughly the same time frame as the other, proven cases of misconduct.
It is unarguable that Mr. Owens’s case met the first three factors. The only questions were whether factors 4 and 5 were met, and according to Judge Newell, writing for the majority, they were not. First, marijuana is tested differently than cocaine or pills (the two instances of proven dry-labbing by this technician). With the fourth factor not being met, the inference from Coty does not apply, and the trial court was correct to recommend that habeas corpus relief be denied. Beyond that, however, Mr. Owens’s claim would have failed for the reason that he could not show the “materiality” of the bad lab testing to his case. In other words, the lab test was not necessary to have convicted him or revoked his probation, since he admitted that the pot found in the traffic stop was his, and officers were more than capable, under Texas law, of testifying that weed is weed without a lab test. Without being able to show falsity under Coty or materiality generally, Mr. Owens’s claim for relief is denied.
This strikes me as an altogether consistent ruling with the Court’s jurisprudence, and a realization of the fact that thousands of cases were affected by this one lab technician’s misconduct. Granting blanket habeas relief in all cases would be as wrong as denying habeas corpus relief in all cases. Some cases will meet the appropriate standard for determining whether Mr. Salvador’s misconduct rose to the level of a due process violation; others will not.
Bell v. State
Bell committed an aggravated robbery when he was 16. The juvenile court waived jurisdiction and transferred the case to district court, but apparently did not make the requisite findings and set them forth with sufficient specificity in the transfer order. Bell pleaded guilty and was placed on deferred adjudication in the district court, which of course was later adjudicated against him.
The First Court of Appeals agreed with Bell that the juvenile court had failed in its duty, and remanded the case for a new transfer hearing. The State sought discretionary review on the ground of whether a defendant could attack the transfer proceedings post-adjudication-of-guilt and revocation of community supervision. Because the court of appeals did not consider jurisdictional questions in its opinion, it must do so, because jurisdiction is fundamental. The case is remanded to the First Court of Appeals to consider whether it has jurisdiction to consider Bell’s claim.
Ex parte Ulloa
FULL DISCLOSURE: I also worked on this case as a prosecutor.
The question for the Court – does an information toll the running of limitations in a felony case where the defendant did not waive his right to an indictment? Answer – yes. The alleged date of the offenses (tampering with evidence) occurred on December 21, 2009. An information was filed on February 2, 2011, with a grand jury indictment on May 3, 2011. The indictment was dismissed on April 17, 2012, but a new complaint and information were filed on February 26, 2014, and indicted again by the grand jury on August 20, 2015. Ulloa filed a pre-trial writ of habeas corpus alleging limitations as a bar to prosecution. The question for the trial court was whether the running of limitations was tolled during the periods in which an information, but not an indictment, was filed.
The Court of Criminal Appeals, led by Presiding Judge Keller, discussed the application of Texas Penal Code § 12.05 and the relevant caselaw, and concluded that the filing of a complaint and information tolls the appropriate limitations period equally as does an indictment. However, the Court leaves open the question of whether a complaint would be sufficient to toll the limitations period.
And that is all I have to say about that.
Green v. State
In this case (which is unpublished), the Court of Criminal Appeals considered whether Mr. Green’s trial counsel was ineffective for a late objection to the State’s expert. But it gets weirder.
The defense hired Dr. Carter as a consulting expert, unbeknownst to the State (because they do not get to discover consulting experts). The State independently chose to call Dr. Carter to the stand, and Dr. Carter testified he had not examined Green. At the point where the State moved from generalized, abstract questions to ones specifically relevant to the case, about 30 minutes into Carter’s testimony, Green’s trial counsel approached the bench and dropped the bombshell that he had hired Carter as a consulting expert.
At a hearing outside the presence of the jury, Carter testified that he misspoke when asked if he had evaluated Green, and in fact did not remember consulting with Green’s attorney.
The Tenth Court of Appeals held that Green was entitled to relief on his ineffective assistance of counsel claim, and the State sought discretionary review. The Court of Criminal Appeals agreed with the State, because it is really, really, really, really hard to prove ineffective assistance of counsel on direct appeal, because there is a presumption that every screw-up defense counsel makes is done for strategic reasons, absent an opportunity to inquire into the mindset of defense counsel (which was not done in this case).
Because the Court of Appeals never reached Green’s second issue, regarding conflict-free representation, the case is remanded to the Court of Appeals for consideration of that ground.
This case is unpublished, but I wanted to discuss it for a simple reason – if you hire a consulting expert, and the State designates him as an expert (because you did request that the State inform you of the designation of any experts, right?), you should probably file a pre-trial motion to exclude that expert on the grounds that there’s a conflict of interest since you paid the expert for his opinion, and since you did not designate him as a testifying expert, you did not really like the opinion you received. Waiting 30 minutes into his direct examination to object is almost prima facie inexcusable, and it is likely that another, less kind court would have decided that there was not reasonable trial strategy for doing so.
Villa v. State
The Eighth Court of Appeals found evidence that Villa was a gang member to be insufficient. Upon the State’s request for discretionary review, the Court of Criminal Appeals reversed on the ground that the court of appeals did not apply the correct, deferential standard to sufficiency review.
One Ruben Bejaran, a member of the Barrio Azteca gang, gave an interview to National Geographic. This did not sit well with senior management at Barrio Azteca, who took punitive action against Bejaran, putting a “green light” on him, which is gang code for “beat kill upon sight.”
So when a group of people assaulted Bejaran at a party, Villa joined in.
Bejaran did not die. He chose to testify at trial, stating that when he arrived at this party, he recognized a fellow B.A. member “2Short.” Bejaran wisely chose to leave the party, but unwisely chose to return. The hostess, showing better sense, told Bejaran to leave. As Bejaran beat a path to the exit, he crossed paths with another gang member known as “Giant.” A fight began. The fight progressed outside toward the middle of the street, when other gang members joined in. Bejaran testified that his assailants were: Hawaiiano, Felix, Tiny, Sleepy, 2Short, and Giant. Bejaran testified that Villa’s nickname was “Sleepy.” A gang unit detective testified that “Sleepy” associated with known gang members and had been arrested with known gang members for a crime consistent with gang activity.
There are generally three criteria for gang membership. Self-admission that one is a gang member is ALWAYS a sufficient criterion, even in the absence of the other criteria. The last two – association with known gang members and arrest consistent with gang activity – may or may not be present. If they are present, a court may make a finding of gang activity even absent self-admission. The same detective testified that once gang management gives a “green light,” all gang members who witness a fight are required to join in under penalty of expulsion from the gang.
The court of appeals, in reaching its conclusion, found it significant that Bejaran never specifically identified Sleepy as a gang member in response to direct questioning. But in doing so, the court of appeals disregarded Bejaran’s earlier testimony that Sleepy associated with known B.A. members and was participating in a gang fight based on B.A. gang rules that said he would be expelled if he did not join in. In other words, Bejaran’s testimony alone established the second and third criteria. Meaning the jury was free to believe or not believe Bejaran’s testimony, and they obviously did believe it. Legal sufficiency is a difficult row to hoe, and this establishes why. Bejaran’s testimony was not the strongest, but it is enough to get over that low bar.
McClintock v. State
Who likes a good, complicated factual situation and procedural history? I do! You likely do not, but you are going to suffer this anyway, because it is important.
McClintock lived above a business. The police brought a drug dog to that business, and let it walk up the stairs to McClintock’s apartment and sniff the door. The dog alerted, a search warrant was obtained, and marijuana was found inside McClintock’s apartment. McClintock appealed, arguing that the search warrant was based on illegally-obtained information.
In 2013, the Supreme Court decided Florida v. Jardines, which held that police may not simply walk a drug dog up to your door. On the strength of that case, the court of appeals reversed McClintock’s conviction. The State sought discretionary review, arguing for the first time that the officers’ misconduct should be excused because, at the time the drug dog sniff was conducted, that was considered to be acceptable by relevant caselaw (which is true; Jardines was a bit of a shocking decision, particularly in Texas). The Court of Criminal Appeals remanded the case in 2014 to permit the First Court of Appeals to consider whether the “good-faith” reliance on existing law from Davis v. U.S., 564 U.S. 229 (2011) should apply to a Jardines sniff.
The majority of the First Court of Appeals, on remand, held that Art. 38.23(b) of the Code of Criminal Procedure, “good-faith reliance on a warrant,” did not apply in this case because the underlying illegality of the probable cause to issue the warrant tainted any “good-faith” reliance on that warrant. Justice Keyes dissented, arguing that if the underlying illegality (the Jardines sniff) was itself justified by “good-faith” reliance, then 38.23(b)’s good-faith reliance provision should be implicated. In essence, Justice Keyes believed the State could daisy-chain good-faith reliance through both Supreme Court caselaw and Texas statutory law to save this Jardines sniff. Boiled down, the Court of Criminal Appeals phrases the issue as: how should Article 38.23(b) apply, if at all, when the warrant affidavit supplies probable cause, but that probable cause appears to be tainted by a prior illegality?
The answer, at least in this case, was that although it is now obvious that Jardines forbids the kind of curtilage-trespassing sniff at issue in this case, at the time the officers were assembling the warrant, the question itself was “close enough” that they could reasonably rely on it. That is, because Jardines came out of the blue, and remains a very limited decision to this date, we should not impose on officers to burden of prognosticating what new rules the Supreme Court might announce, and their reliance on the law as it existed at the time of the search is enough to trigger 38.23(b)’s good-faith reliance provision.
Judge Alcala, writing in dissent, took the majority to task for not giving effect to the “plain language” of Art. 38.23(b), which says that if there is no probable cause for the warrant, then there is no good-faith reliance. Judge Alcala pointed out that the Court itself had previously decided that there was no probable cause for the issuance of the warrant (dissent at page 2).
So the question is answered, but I do not think it resolved, about daisy-chaining good-faith reliance. This is always a tricky area, as we must employ the legal fiction that new rules of constitutional criminal procedure are “apparent” from the law, but not so apparent that we retroactively invalidate decades or even centuries of criminal jurisprudence by doing so. However, if the question is whether a pre-Jardines drug dog sniff will be enough to allow us to attack a case on 38.23 grounds, the answer seems to be, “probably not.”
Third Court of Appeals
In Freeman v. State, No. 03-16-00130-CR, the Third Court of Appeals considered whether, following a bench trial and a plea of guilty to a lesser-included offense, the trial court violates a defendant’s constitutional rights without making a finding of guilt beyond a reasonable doubt.
At the conclusion of the guilt-innocence stage, the trial court stated, on the record, “The Court finds by the clearer greater weight and degree of credible testimony that Defendant is guilty of the offense of assault by impeding the breath or circulation, as alleged in Paragraph 1 of the indictment.” One may note that “beyond a reasonable doubt” is not equivalent to “the clearer greater weight and degree of credible testimony.”
Thankfully for Mr. Freeman, this error is considered “structural” rather than merely constitutional, and so it is not subjected to a harm analysis. The case is remanded to the trial court for further proceedings.
Recall that it is the oral pronouncement of judgment that controls in criminal cases. The written judgment is merely a memorialization of the judge’s words.
Tenth Court of Appeals
In an unpublished opinion in Ukwuachu v. State, No. 10-15-00376-CR, the Tenth Court of Appeals wrestled with the question of whether the trial court properly excluded evidence under Rule 412(b) as improper evidence of past sexual conduct. At issue were a series of text messages between the complaining witness and her friend detailing her past sexual history with the defendant. The State admitted a portion of the text messages after the alleged incident occurred, but not the text messages from before. The Court of Appeals held that the text messages were part of a single, ongoing conversation, and that they were not graphic, inflammatory, or prejudicial, but were probative of the issue of consent, and so remanded the case for a new trial.
Fourteenth Court of Appeals
In Kelley v. State, No. 14-15-00979-CR, the Fourteenth Court of Appeals considered whether it was error to admit a pre-trial identification of the defendant. Because of a lack of evidence of suggestiveness and imprecision in the complaint both at trial and appeal, the admission was upheld.
Pretrial photographic lineups are routinely fraught with violations of department procedure. If you have a pretrial identification in your cause, you ought to be requesting a copy of each police department’s photographic lineup policy and comparing it with best practices as described by the courts. Consult an expert (if your client is appointed, you are entitled to an expert on this basis). Hold a Daubert/Kelley hearing. Object and file a pre-trial motion to suppress. Make and jealously guard your record, because without it, you might end up like Mr. Kelley.