Why judges should appoint more attorneys on writs

We hear a lot these days about wrongful convictions. There are Innocence Projects at all the law schools in Texas now. There are foundations and projects dedicated to the uncovering of the wrongfully convicted. There are groups dedicated to trying to improve our criminal justice system. Texas itself has established the first of its kind Forensic Science Commission, dedicated to uncovering the junk science that contributes to bad criminal convictions. Finally there are even units within the major prosecuting offices dedicated to verifying the integrity of the convictions in their counties, like Harris and Dallas. Yet in all this hubbub there is a single group of people who have been overlooked, and perhaps given a pass on some of these issues. That group, my friends, are the elected judges of our fair counties, both district and county criminal courts.

The Texas Constitution guarantees that the writ of habeas corpus shall never be suspended under Article I, Sec. 12.

It is a writ of right, available to all. Under the legislature’s guidelines, pursuant to Article 11 and Article 1.051(d)3 and 26 a court may appoint an attorney to a habeas application in the interests of justice. In a time when even our own elected District Attorneys acknowledge that we need conviction review in their own counties, it is well past time to ask for the bench to bear its fair share of helping review convictions. Since they are elected to serve the people, it seems fair that one way to serve those elected is to appoint more lawyers to help the indigent obtain a fair review of their convictions.

Yet all too infrequently do our judges ever appoint attorneys to represent the writ applicants. This may be out of habit. It may be out of some misguided belief that their courts have no issues with wrongful convictions, or that there are no bad lawyers who work in their courts. It could be because of the erroneous belief that no prosecutor would ever hide evidence in their court. or that even good lawyers do not make mistakes out of overwork or overzealousness. I cannot speak to why so few lawyers are appointed on writs out of our courts; I can only ask that judges change their ways.

Habeas law and procedural rules are different than what most dedicated trial attorneys are used to working under. It is the habeas attorney’s job to prove that the conviction was fundamentally flawed in some way, either by the defendant’s incompetence, the lawyer’s bumbling, the State’s misconduct, juror bad acts, or some other problem in due process. Proving facts is not usually possible for inmates or people without money or the ability to ask the court for resources. Thus, appointment of an attorney markedly changes the odds of an indigent man or woman in favor of obtaining a true review.

In an age where our many past injustices are finally coming to light under new science and objective investigation, isn’t it time for judges to pick up their fair share of responsibility for finding out the truth?

Post-Traumatic Stress Disorder in Criminal Defense

Post-traumatic Stress Disorder is a condition that occurs in people who have experienced a frightening or violent event, i.e., trauma.  The condition’s symptoms include nightmares, avoidance of the situations or people that remind the individual of the incident or series of incidents, flashbacks to the incident, trouble sleeping, feelings of being on edge, and they usually continue for over a month, and can normally be traced to a specific indecent or series of incidents.  Some people are familiar with this condition through their readings or experience with veterans who have faced combat or hostile fire, or incidents like the USS Cole bombing. PTSD can manifest within a few months of the incident, or sometimes even months or years later.

However, veterans are not the only ones who experience trauma.  Many of us have had veterans as clients, and I frankly started learning about this disorder because of my attempts to assist veterans in criminal court.  However, if one thinks about it, many of our clients have been exposed to trauma.  People who were physically abused as children, people who were assaulted in prison, women or men who were sexually assaulted, young people who were part of gangs and the violence in their neighborhoods, people who have lost family to suicide, or been in a deadly fire, or were injured in a tragic car accident, all can experience PTSD.  Now, before you get skeptical, think about these questions as they relate to our clients, and see if it is likely our clients could answer “Yes” to any of these questions, regardless of why.

  1. Do you have nightmares?
  2. Do you feel anxious? [cannot sit still, worries, less than calm]
  3. Do certain sounds or smells make you feel anxious?
  4. Are you uncomfortable in crowds?
  5. Are you frightened by sudden loud noises?
  6. Are you uncomfortable if you cannot see the entire room?
  7. Do you ever feel uneasy or threatened? [or, do you have sudden angry outbursts for no apparent reason?]
  8. Do you have trouble sleeping?
  9. Do you avoid noisy areas?
  10. Do you have negative views of yourself, or feelings of guilt or blame?

These questions are not all encompassing, nor are they a surefire way to detect it.  If one takes the risk factors [abusive childhood, for instance, anyone who has been involved in a CPS case, or prior military service in a hazardous area or direct combat, or prior prison time, or prior losses of loved ones in a violent way, for example] and then observes the client [are they hyper-vigilant, keep the their backs to the wall, head on a swivel, or are they complaining of sleeplessness, irritability, bad dreams, taking anti-anxiety medications, do they appear to look for threats or complain about how some guard reminds them of their dad, “that bastard”, etc.], then this is worth following up for several reasons.

First, the circumstances that produce the PTSD are often quite mitigating to juries, judges, and prosecutors.  It will not always help, but if people begin to see your client as the kid who was abused and placed in a foster home instead of the armored car robber, then this can only help.  Second, the PTSD itself is often the root of the actions that got your client here in court in the first place.  Whether it is being caught with controlled substances that they use to anesthetize, or the drinking that led to the DWI, or a flashback that caused an over aggressive reaction that led to an assault charge, a diagnosis of PTSD could mean you have both an explanation for the illegal act and a way forward, i.e. treatment.  This can only help your client.  Last, it can provide, in some instances, a defense, particularly if one can put the fact-finder back in the incident that caused the PTSD and see how it was perceived by the client.  In limited instances, it may even provide a defense against intent if one can prove a flashback occurred or that the circumstances were a misconception.

So, we know to at least look for the presence of this disorder in our all-too often traumatized clients.  Next, since we are lawyers, we need to prove this so we can use it.  If our client is a veteran, often that simply means obtaining his or her medical records if they already have such a diagnosis.  If they are vets but do not have the diagnosis yet, then see if one can arrange for a VA examination and diagnosis.  First though, one may need to obtain the records that support the diagnosis, such as combat awards (a Purple Heart, a Combat Action Badge/Ribbon, commendations with a “V” device for valor under enemy fire, awards for heroism [such as a Bronze Star], or a unit citation) or the discharge papers, called a “DD-214”, which will list the job, deployments, and action history of the service member. If these records are not available, a request can be sent to the VA to obtain a copy. We can also look to the unit history maintained in the archives of the separate services, which will list combat or hazardous actions by the person’s unit.  These can be obtained by an e-archives release form downloaded off the web.

For our civilian folks, the records process is trickier.  Prison and jail discipline or medical records are often a surprising gold mine, even if it looks as if your guy was written up for the fight.  Attacks on your client are often documented in either medical or disciplinary records. The reader may poo poo this, but how many of your friends would respond with calm equanimity to an attempted sexual assault or shanking?  For older cases of sexual or physical abuse to a client during their childhood, one needs a subpoena typically to the Children’s Protective Service agency in the county that handled them, and a release for any medical or counseling records. Juvenile records are often also a good source for this. We may also want affidavits from family [this works for the vets above as well] members as to the client’s waking up at night screaming, increased drinking, increased drug use, or sudden bursts of temper since returning from prison, the service, the fire, or since leaving foster care.

Which brings up a point – PEOPLE DO NOT LIKE TALKING ABOUT TRAUMATIC EVENTS BECAUSE THEY WERE TRAUMATIC.  One needs to get at least some trust, some facts, or some family help to prove this disorder up, because no one likes sharing difficult times from their past with strangers.  Would you?  Keep this in mind and treat the issue with some dignity.  Do not expect immediate help from the client as to the horrible things they had to endure.  This does not happen in a holdover cell meeting; it happens over time and investigative effort.

 

So, look for the PTSD that many of our clients have, find the proof, and use it to lessen their consequence.  Good luck!

Age of Sanctuary: End Times

On May 7, 2017, the governor of Texas Greg Abbott, signed a new document that would go into law September of this year. This new law addressed the controversy around “Sanctuary cities” and now requires police to ask about a person’s legal status. In simple terms this new law would require local police to question a person’s legal status and arrest them if they are undocumented. If they do not, the police can face criminal charges as well as fines. This new law is being met with extreme resistance from Pro-Immigration groups and the American Civil Liberties Union but also applauded by many. I will try to highlight the viewpoints from both sides to help easily paint the picture.

The easiest way to explain the idea of a sanctuary city is to first understand the difference between Federal and State law. Immigration is Federal law and handled by Department of Homeland Security (DHS) and the Department of Justice. In the past, it was the duty of DHS to find and catch undocumented people, not state/local  law enforcement. However, once an undocumented person was arrested and convicted by a State Judge they are SUPPOSED to be reported to Immigration for deportation. This is where the term “Sanctuary City” comes into play. There are certain cities/counties that even after conviction they do not report the undocumented person to DHS and let them leave jail after completing their sentence. With the new President, he vowed to put an end to “sanctuary cities” and Texas quickly followed. The catalyst for this action occurred in San Francisco (which is a Sanctuary city) in 2015, when a girl was killed by an undocumented individual despite him having been in jail multiple times. The argument is if San Francisco complied and notified Immigration officials, the individual would have been deported and this murder never would have happened. By implementing this new law, Texas hopes to facilitate the deportation of undocumented individuals.

However, the opposition of this new law argues many different points. One complaint of many local law enforcement is that they would be spread too thin. They do not have the manpower nor would that be a good use of local law enforcement.  Their view is that our police have bigger issues to deal with than doing the work for DHS. They can’t do the work of DHS and still keep up with their local duties. Others say that we can’t hold all the undocumented people in jail because there just isn’t enough room. A similar law had been tried in Arizona a few years back which gave the police the power to ask for an individual’s legal status. Ultimately this law was removed but many people argue that this new Texas law is the same wolf in different sheep’s clothing.

Even though this new law is supposed to come into effect on September 1, 2017, it will be met with much opposition and legal challenges. It will be interesting to see if other states follow Texas’s example and implement similar laws. Below is an excerpt from the Associated Press regarding the new bill.
The Associated Press reports:

“The new Texas law was blasted by opponents as the nation’s toughest on immigrants since Arizona’s crackdown in 2010, disparagingly known as the ‘papers, please’ provision. They are now vowing a court challenge in Texas similar to what unfolded in Arizona.

“Every major police chief in Texas, which includes some of the largest cities in the U.S., opposed the measure that allows police to inquire about the immigration status of anyone they detain, a situation that can range from arrest for a crime to being stopped for a traffic violation.

“It also requires police chiefs and sheriffs — under the threat of jail and removal of office — to comply with federal requests to hold criminal suspects for possible deportation. Republicans have a strong majority in the Legislature and shoved aside Democratic objections, even as President Donald Trump’s efforts to withhold federal funding for sanctuary cities have hit roadblocks in federal courts.”

Defending Yourself

Face it, it’s going to happen to all of us.  An 11.07 writ alleging ineffective assistance of counsel (“IAC” for short).  Essentially, a client or former client is accusing the lawyer of representing them poorly or misleading them in some way, thereby causing their incarceration.  This happened to me this year.  I was initially pretty upset, but I was also prepared.

The details aren’t that important, but some basic facts are material.  My client, who we can call “Donnie” was accused of robbery.  He was on parole for murder and had been convicted of several prior felonies.  He has been incarcerated most of his adult life.  This offense was also committed in front of a surveillance video camera.  Making matters worse, and harder to defend, my former client Donnie confessed to every element of the offense on video after being Mirandized by a professional and thorough detective.  For some reason, the ADA on the case did not list the enhancements on the indictment but everyone was aware of their existence and the great leverage they provided.  Eventually, Donnie pled guilty and was sentenced to six years in prison.  I was very pleased with that result.  Donnie’s family was pleased with that result.  Donnie himself was ecstatic being sentenced to only six years with the indefensible facts and his numerous prior convictions and the possibility of facing a minimum of 25 years in TDCJ.

Flash forward to this year, I received a package from the clerk’s office containing the 11.07 Writ, the State’s Answer (basically punting) and an order for me (trial counsel) and an attorney from TDCJ to provide affidavits as to our memories of the case so that the trial court could make findings of fact and rule on the 11.07 writ.

While I was not anticipating such a matter in this case, I was aware it could happen.  And I was ready.  My client alleged I did not share the facts of the face with him, mislead him about the possibility of parole and was generally ineffective.

In this case, as well as all other cases, I followed the same practice.  I kept my physical file in storage (alphabetically for easy access but that may be some level of OCD) along with all discovery materials, my notes, work product and details of my meetings and correspondence with my client, the ADA, witnesses, and Donnie’s family.  I was able to detail my meetings with the client, the letters and correspondence I sent him and the ADA and the dates of the jail visits very easily.  I prepared an affidavit detailing what Donnie was told and when.

I certainly don’t relish the fact that Donnie will spend some more time in prison, but I sleep soundly at night that he knew exactly what was going to happen to him during our case and that his plea was done freely and voluntarily.  I also sleep soundly at night that I have detailed notes in his file as well as all my other cases so that I can defend myself if needed.

 

Significant Decisions Report for April 28, 2017

This week saw the High Court issue an opinion in the case of Lewis v. Clarke, which is (sadly) not about America’s two greatest explorers suing each other for whose name should get precedence in the history books. But William, when you think about it, the Clark and Lewis Expedition sounds like a late-70s progressive rock band, not a merry jaunt across the American West, so Lewis and Clark it shall remain. Sadly for us, however, the case is not one of criminal significance, so we are bereft of guidance from on high. However, the Fifth Circuit, Court of Criminal Appeals, and Texas courts of appeals will ride to our rescue.

Fifth Circuit Court of Appeals

Alexander v. City of Round Rock et al.

Officers with Round Rock PD pulled over Mr. Alexander after they witnessed what they considered “suspicious activity.” Naturally, Mr. Alexander did not want to answer questions, and, finding their authority so challenged, the officers “forcibly removed Alexander from his car, handcuffed him, and ultimately arrested him for resisting a search.” Ah, the jackboots of authority are already stamping on the human face, forever.

Alexander sued the officers under 42 U.S.C. § 1983, alleging violations of numerous constitutional rights. The District Court granted the officers’ motion to dismiss on grounds of immunity. The Fifth Circuit affirmed in part, and reversed and remanded in part.

The facts are thus: Alexander was a patron of a hotel in Round Rock, Texas. Just after 9:00 p.m., he returned to the hotel from a grocery trip, when he spied a stray cat in the parking lot. He stopped his car and attempted to induce the kitty into coming out of hiding so that Alexander could feed him (I promise there won’t be too many animal cases this week, but, like the good dogs in last weeks, feeding stray kitties is something I heartily endorse, because animals are awesome and people sometimes suck). Anyway, his animal welfare deed done, Alexander returned to his car, at which point he was pulled over by Officer Garza. Alexander identified himself but told Garza that he would not answer any of Garza’s questions, which prompted Garza to call for backup for “noncompliance” (there’s your dystopian tip-off of the day).

On appeal, Alexander argued that the officers violated his constitutional rights by: (1) unlawfully detaining him; (2) arresting him without probable cause; (3) retaliating against him for exercising his constitutional rights to remain silent; and (4) using excessive force. In order to overcome the nefarious defense of qualified immunity, Alexander had to show that the official seeking immunity has violated a statutory or constitutional right. If that showing is made, the reviewing court must then determine whether the official’s actions were objectively unreasonable in light of the clearly-established law for the time.

So while Alexander may not ultimately prevail on these, the Court of Appeals, taking his well-pleaded allegations as true, found that he was at least entitled to survive the motion to dismiss stage. Which makes this a case to watch for those of us interested in vindicating the civil rights of those who find themselves inappropriately on the wrong side of the law.

Lincoln v. Barnes

In another qualified immunity case, the Fifth Circuit discussed whether a Texas Ranger violated the Fourth Amendment right of a citizen to be free from unlawful seizure when he arrested Erin Lincoln without a warrant, probable cause, or justifiable reason. The rationale for her detention was that she was a witness to her father’s shooting. The Fifth Circuit did find that this was a Fourth Amendment violation, and then considered whether the right violated was clearly established at the time of the violation. The Court of Appeals found that the arrest and custodial detention of a “witness” violated the Fourth Amendment, and thus Erin could maintain her suit against the Texas Ranger for violating her civil rights.

I included both of these cases in this week’s Significant Decisions Report to highlight the difficulty, and potential reward, in bringing civil rights cases against police officers. Qualified immunity is a hell of a hurdle to overcome, but it can be overcome. The secret is in a well-pleaded complaint and good lawyering to carry one through the motion to dismiss and summary judgment stages. If you have one of these cases in your office, it would behoove you to get the petitions from these cases and/or talk with the attorneys representing these citizens.

Court of Criminal Appeals

Ex Parte Pete

Following conviction, Mr. Pete decided he would testify at punishment. But when he approached the stand, he was still shackled, and who should espy such a circumstance but the jury. It should be noted at this juncture that the jury should never see the defendant shackled. Pete asked for a mistrial, but the Court took it under advisement and allowed the punishment trial to continue. The trial court interrupted the proceedings and granted the mistrial. Following the grant of mistrial, Pete filed an application for habeas corpus and tried to reinstate his trial bond.

The issue on appeal is whether a mistrial granted at the punishment stage resets the entire trial or merely the punishment stage. The Court of Criminal Appeals discussed the fact that a defendant ordinarily has the right to have the same jury assess both guilt innocence and punishment. But because Pete’s motion for mistrial was only as to the punishment stage, and thus his motion for mistrial necessarily indicated that there would be another jury to hear his punishment case, he would have “invited” the error of which he might complain. So regardless of what the real answer is to the question, in this case, invited error means the defendant loses.

Judge Walker dissented without written opinion, which is a shame. I’d have like to read it.

Miller Jr. v. State

Miller Jr. was charged with aggravated sexual assault of a child and indecency by contact. He waived his right to a jury trial and sought a bench trial. After his conviction, he received a prison sentence. Miller Jr. filed a motion for new trial alleging ineffective assistance in that his counsel allegedly promised him that he would receive probation if found guilty at a bench trial. This advice was wrong because under the former Art. 42.12 that applied at the time of the commission of the offenses, only the jury could recommend a probated sentence. The court of appeals affirmed the trial court’s denial of the motion for new trial, applying a deferential standard of review. On discretionary review, the Court of Criminal Appeals addressed the proper standard of prejudice to be shown in cases of erroneous advice about probation eligibility. So for Texas law, the standard of prejudice to be shown regarding ineffective assistance of counsel is NOT (I repeat, NOT) whether the defendant’s decision to waive a jury would be different. It is whether a jury would have decided differently than the judge. And since that is the appropriate ineffective assistance prejudice standard, the Fifth Court of Appeals was correct to deny Miller Jr.’s motion for new trial.

Judge Yeary dissented without a written opinion, which, again, I would dearly have loved to read. Come on, dissenters. We, your loyal fan(s), want to hear from you!

First Court of Appeals

In Sanchez v. State, No. 01-16-00862-CR, the First Court of Appeals considered the legal sufficiency of the proof of value in a theft case. Our intrepid thief stole his neighbor’s VW Bug, whose value was sought to be established at trial by the testimony of the owner and the investigating officer. The owner’s testimony was insufficient, because she did not describe the timeframe in which she purchased the vehicle nor the length of her ownership. However, the investigating officer’s testimony, though rather on the anemic side, was nevertheless sufficient because he referenced the Kelley Blue Book (no, hashtag appellatetwitter, not that Blue Book, nerds). So even though the officer had never seen the car in question, he could nevertheless bring in a hearsay valuation from a book that is hardly regarded as entirely authoritative within the car sales context. Don’t believe me? Try getting your Kelley Blue Book value on a trade-in.

Sixth Court of Appeals

In Oringderff v. State, No. 06-16-00085-CR, the Texarkana Court of Appeals, the defendant challenged his conviction for felony DWI on the ground that the trial court erred in overruling his motion to suppress and that the evidence was insufficient. However, the Court of Appeals found that, under the totality of the circumstances, the arresting officer had probable cause to pull Oringderff over due to a combination of Oringderff’s bad driving (going over the fog line) and information from a 911 caller. Not that even had Oringderff prevailed on this point would it have changed the legal sufficiency calculus, because in a legal sufficiency review, the court considers all evidence, whether rightfully or wrongfully admitted. So there’s a good lesson – raising legal sufficiency on the grounds that the evidence was insufficient because the trial court stubbornly refused to grant your brilliant motion to suppress is going to get you nowhere.

Tenth Court of Appeals

In Ex parte Billy Mack Maddison, No. 10-16-00081-CR, the defendant filed an application for a pretrial writ of habeas corpus challenging the constitutionality of Texas Penal Code § 33.07, online harassment. The trial court granted the writ, declaring subsection (a)(1) unconstitutional. A majority of the Tenth Court of Appeals, however, disagreed.

At issue is whether Texas Penal Code § 33.07 is a content-based regulation. Once again, the dreaded demon of Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) rears its bestial head, with the pernicious (and incorrect!) line that there is no First Amendment protection for speech which invades “privacy interests” (seriously, someone find me that exception in the First Amendment), and the Tenth Court of Appeals merrily traipses down wrong path from the outset. The Court of Appeals concludes that Sec. 33.07 is content-neutral because it is viewpoint-neutral, which confuses the two analyses.

Chief Justice Gray, writing in dissent, gets the issue absolutely correct. I’ll leave it in Chief Justice Gray’s words: “Because you must look to the content of the speech, or into the mind of the speaker (intent), to determine if the statute is violated, the prohibited speech is properly characterized as content based. As just one simple example, support in favor of a political candidate would not be prohibited under the statute although it showed a photo of the candidate and was made to appear to be posted by the candidate, even though it was not. On the other hand, a negative political ad posted on a web site or sent over the internet without the candidate’s approval would fall within the prohibition of the statute. The statute sweeps clearly protected political and expressive speech within its prohibition. But you have to look at what is said and how it is said to determine if it is prohibited the statute. That makes it a content based impairment of speech.”

Could not have said it better myself, Mr. Chief Justice.