4 :: Upcoming CLE Event Schedule6 :: A Word from our President

by ../oNwIe MlIsic*

8 :: Winning Warriors

12 :: HCCLA News Round UpHeCLA Supports T-Times & Welcome New Members

13 :: Second Chair Program:Being a Smart Second Chair Protege

by S8F&II V. WOOd

14 :: Defense Initiated Victim Outreach:Dive Comes to Texas

by Marilyn Peterson Armourand Stephanie Frogge

16 :: Attorney Strategy:Don't Mess with Texas

by Joseph W. Vafll1a

21 :: OWl Blood Defense:Part III, Preparation & Trial

by Kelly W. CaSll

26 :: Holiday Party '09

28 :: IT Corner:Computer System Networking & Management

by Lester LBIIin 800 Marie Hvizdos

31 :: Investigative Corner:A Recap

by Jim Wiflis

........ 0

Distribution 1000 copies per issue.For arlicles and other editorial contributions ­Contact Kathryn Kase at 713-222-7788 or

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a word from our

PresioentJa.Anrw ?r!uJich

We were all sitting around the counhouse. [\ was Mondaymorning. Trial morning..

The clouds fill the sky. Dockets arc overcrowded, just likethe jaiL PR bonds are seldom granted yet courtesy pre-llialsupervision is ordered just in case someone should make bond.Defendants injail an: meeting their appointed lawyer for the fil1;\

time while the prosecutor begins negotiating for a guilty pica.Investigations are foregone. Multiple defendants line up in frontof the bench 10 accept pleas of time served or maybe probationjust to gcl back 10 work and family, Rarely is a dcfcndant infront oflhc judge for more than 5 minutes. Potential jurors areshuffled into the courtroom. Remarkably, counsel has no ideawhich case the jury will hear when as many as ten to twentycases have been called for trial. Eventually, ajury is selccted andtrial begins. And, it's only 10:30!

Ok, so the clouds look pretty thick. Where's the chance forjustice, you ask?

0THfDlftfIDER

Justice falls from the sky when the indigent person is pennittedrelease on a personal recognizance bond so that he may notonly work with counsel to investigate and counter the claims ofgovernment but also get back to work supporting his family andkeeping the first goodjob to come along in a long time. Justicepours like rain when defendants arc afforded the opportunity toreview the government's evidence and research defenses, whichusually takes more than the couple hOUTS allotted to docket calland ofien longer than the two weeks between court settings.Justice splashes about the ground when the defendant receivesa fair trial. Justice floods the courthouse when judges remainimpartial and squarely follow the law they have sworn to upholdregardless ofhow that affects the evidence. Andjustice washesover all when individual freedoms are regarded and protectedaccording to the Constitution.

Are you ready for justice? HCCLA is.

Over the past sevenl months, and years. HCCLA has stood readyto help. We've brought ideas to those in a position to change.We've offered solutions. We've suggested reform. They haveignol'lld our requests. The coonI)' has formed a new criminaljustice couocil. The boards of judges have met regularly inprivate. Both the council and the judges invite participationfrom the prosecutor's office, yet they display linle regard for thedefense perspective. Decis)oos are made daily impactingjusliceand the defcose baT, but we find out about them after the fact.

Take the most recent example: the Judges of the District CourtsTrying Criminal Cases in Banis Counl)' met and established newguidelines for the payment of e~penses in indigent cases. Theguidelines, as applied, would divest counsel previously appointedof fees already earned and would modify the definition of courtappearance so as to eliminate any fann of payment for certainappearances. Whether intended or unintended consequences, inthe name ofsaving money. the judges voted to disregard the letterand spirit of the Fair Defense Act as well as the Constitution.

Seeking justice (and reasonable attorney fees) for ourmembership and the clients they represent, HeCLA immediatelybegan addressing the "new guidelines" and e~posing theunconstitutional taking of fees that would occur. AdministrativeJudge Mike Anderson indicates in hind-sight that the judgesshould meet with representatives ofthe defense bar to discuss thebudgetary problems and possible solutions. (As of the time ofthis writing, these meetings have not occUJTed, but I am hopefulthat Judge Anderson will carry through.) The point being, theytried to decide alone, behind closed doors, and look at the result.It's time for the judges to stop denying input from the defense

"".When the law clearly states that counsel must be paid reasonableattomcy fees for all services performed on behalf of iDdigentclients, why does the attorney's expense voucher get cut? Icertainly understand presumIXive muimurns, but they arc: just

that - presumptions. Presumptions can be ovcn:ome. Whena case is reset multiple times because the offense: report isn'tavailable, it hasn't been prcsc1lted to grandjury, the state basn'tmade any OffCTS because the victim hasn't been contaelcd forthe RIP call, and a host of other reasons beyond the control ofthe defendant and his counsel, the defense auomey is placed ina position of having reached the presumptive mu:imum longbefore the case is concluded. Requests for additional paymentwill likely be arbitrarily reduced. For example, one auorneyrepolU submiuing a voucher for II court appearances and yetreceiving payment for only 7.

That judge had apparently authorized expenses greater than thepresumptive max but had actually denied reasonable fees. Wasthere some reason to believe counsel had nOl made each andevery one of the 11 appearances? If so, remove that attorneyfrom the appointment list as provided by the guidelines (see sec.11.10). It is not the fault of the attorneys accepting appointmentsthat the judges choose to implement a nat fcc per appearancesehedule rather than an hourly rate for work acrually done;attorneys should not be penalized court appeanmce pay when theappeanmccs are required.

Why do judges continue to deny PR bonds? Why do we continueto incarcerate probations just because they are on a waiting list forrehabilitative programs? Why do some prosecutors still bclieveit's ok to talk to the judge without defense counsel prescnt, andjust as important, why docs the judge allow it?

[t is time for all prongs of the criminal justice system (judges,prosecutors, and defense anorneys) to come togelher, respectone another, and work together to better the system. It is timefor our judges to come out of the secret closed door meetingsand invite discussion with more than just the prosecutor. It islime for justice.

Yes, it's cloudy, but I believe there is a cluma for justice!

""""""'0

Why does DAVLD CUNNINGHAM go touial in federalcourt? Because - as Willie Sutton might say - that's wherethe acquittals arc in bank robbery cases. David's clientwas charged with three counts of aiding and abetting herbank-robbing boyfriend A focus on misidentification,alibi and character evidence - as well as an enlertainingcross-examination of the robber boyfriend - paved the wayfor David's win before a jury in the court ofV.S. DistrictJudge GT1ly Miller.

lbc chargc was murder most foul, but ALLEN ISBELLwon a "not guilty" from a jury in the l84th Disttict Coun.And, then, in the 4101h Disttici Court in MOnlgomeryCounly, Allen and RICK BRASS pleaded self defense andsecured an acquittal in a murder case following a six-daytrial and three hours ofjury delibeT1llions.

Demonstrating that thc most efficicnt way to win adeath penally case is to make the charge go away beforeindictmenl, ROL.AND MOORE m convinced the HarrisCounly Districi Attorney's office to drop the capitalmurder charge against his client. The dismissal came justas the case was up for grand jury presentment and after theStatc met the defcndant's "very believable alibi witnesses"in the grand jury waiting room. The eyewitness's shakylestimony also was a factor. Roland's work and that ofprivate investigator Mollie Steinle ensured that the clientwent free after two-and-a-half months in jail.

After a Iwo·and·a·half.year fight, BRIAN WICE gOIMontgomery County Districi Judge Mikc Mayes to issuca 29-page order recommending a new trial in a 1999non-death capital murder case after the medical examinerchanged her opinion and found Ihe cause of death of the17-month-old decedent 10 be undetennined. And, afterthis viclory hit the media, Texas Monthly's Februaryissue hil the stands with a long article delailing Brian'srelentless efforts to win a new trial for battered womanSusan Wright.

0"'......

PAT McCANN won a judgment of acquittal from federalDistrict Judge Sim Lake in a felon-in-possession casewhere the client was charged with an Anned CareerCriminal Act enhancement, making the penalty range ISto life. Notably, Judge Lake granted Pat's Rule 29 motionafter a trial in whieh the jury deadlocked, was Allencharged twice and still said they could not reaeh a verdict.After Judge L.ak.e granled the acquittal, Pat's c1ient­described by one onlooker as a lough guy - hugged himand thanked him.

Giving the client a oo.over in an aggravated assault casetbat originally yielded a 3().year sentence, CYNTHIAHENLEY persuaded a Beaumont trial court and then theCourt ofCriminal Appeals 10 find trial counsel ineffectiveand granl punishmenl.phase relief.

JACQUELYN CARPENTER won a motion for adirected verdict before Judge Shawna Reagin after thecomplaining witness in an aggravated sexual assaultcase recanted her allegations at trial. Jacquelyn modestlycredits Sarah Wood, Stan Schneider and Erie Davis fortheir assislance, as well as the court's respect for IheRules of Evidenee.

Three long ycars of tenaciously representing an innocentclient in a welfare fraud case in tbe 208th District Courtculminated in TUCKER GRAVES persuading theprosecution to dismiss all charges. And, then, when theclient was hospitalized with hean problems just beforeChristmas, Tucker collected food and gift cards for her,her husband and their four children.

He nol only writes about how to win OWl cases basedon blood warrants, but KEL.LY CASE prevails in them,too! After proving there was no probable cause for thearrest or the field sobriety lests, Kelly won suppression ofevcrything - even a .20 BAC - in a blood warrant DWIcase in Montgomery County Criminal Cowl-at-Law No. S.

The diem was charged with felony possession of marijuanaand with possession ofa prohibited weapon, but he wasrestored to freedom as a result of a day-long suppressionbearing won by MARY SAMAAN, SARAH WOODand JAJ"l/E VARA before Judge Herb Ritchie. This verysame team of legal eagles also won a significant motionto suppress in the 209th District Court after they focusedon mciaJ profiling and prolonged detention by the DPSofficer. Commented Sunshine Swallcrs, "These three areunstoppable!"

JOAQUIN JIMENEZ won dismissal ofacell-phone+in-the-pen prosecution folJowingjury selectionin Brazoria County. Although the State had olTered sevenyears in state prison, the prosecution folded due to whatit tenned "unreliable evidence." As JelTPurvis observed,Joaquin deserves much credit for calling the State's bluffand demanding a trial.

Convincing a pancl of the United States Coun of Appealsfor the Fifth Circuit that the District Court erred, TIMCROOKS won re-scntencing for a client who pleaded guiltyin a federal fireanns trafficking case. The panel (Stewart,Dennis and Haynes) agreed with Tim thai the governmentbad not met the preponderanee-of-evidencc standard requiredfor enhancement of the client's sentence.

The State thought the case was a slam dunk, but SCOTIPAWGAN and REBECCA fLEMING scored an acquittalin the 359th District Court in Montgomery County onbehaLfofa client charged with the state jail felony crime ofinterfering with an emergency call.

ROBB f1CKMAN and TOM MORAN received a5I-minute acquittal in an aggravated sexual assault casein the 230th District Court. The exoneration followeda nine-day trial in which onlookers credited Robb withmaking the State's case look"as transparently weak as itwas" while the client's entire family was in the counroomfor the whole trial. Robb credited Carey Wellmaker andlJ. Gradoni for their outstanding investigation. And, nOIlong before that victory, all it took was one day oftnalwith MONIQUE SPARKS and Robb in an aggravatedrobbery case before the State gave up and offered theirclient deferred adjudication for misdemeanor theft.

Baseless charges of sexual abuse ofa child kept the clientfrom seeing his children for 18 months. TE'IVA BELLenabled the client to be reunited with his family when shepersuaded the grand jury to no+billthe case.

JOSH SCHAFFER won a new punishment trial for alife-sentenced client after convincing the Court of CriminalAppeals that the original trial counsel had rendcredincffective assistance of counsel in a mcthamphctaminepossession case. Notably - and commendably - Josh wonin the CCA after the trial court denied relief.

The client was charged with aggravated sex:ual assaultand had a prior for murder, but MURRAY NEWMANand CARM"EN ROE battled to a hungjury in the 180thDistrict Court. Observers say Murray's cross of the State'sexpert was masterful, while Carmen sensitively dealt withthe child witnesses. The duo also thanked Brian Wice forhis assistance.

""""""'0

Winning Warriors

DON HECKER put the Slale 10 its proof and got his clientacquitted of aggravated robbery in the 180th District Court.

A skillfully litigated ALR hearing allowed JOHNDENEIOLM to nail down his defense of a DWI case andpersuade the State 10 dismiss just as Judge Pam Derbyshirewas calling a panel to the court for jury selection. And thenJabn stayed in Harris County Criminal Court-aI-Law NO.7to help Steve Shellist pick his jury. What a guy!

First he got one of the arresting officers to admit his clientdidn't look intoxicated and then STEVE SUELLISTheard the jury acquit his client of OWl 2d in Harris CountyCriminal Court-aI-Law No.7.

CASIE GOTRO celebrated Ihc Christmas holiday seasonwith two dismissals and a grand jury no-bilL

MARK THIESSEN and TONYA ROL.LAND enabledtheir client to fly home to Egypt after they obtained aninstructed verdict of acquittal from Judge Henry Onckenin Harris County Criminal Court-at-Law No. 14 in a OWlcase with a .14 BAC. And, in another county court onanother day, Mark won an acquittal at a OWl trial despitean unflaltering video and a receipt showing the clientbought cight Jacgcr Bombs (which wc're told consist ofone shot of Jaegenneister mixed with a half pint of RedBull).

A four-day OWl 2d trial with a .19 BAC ended incomplete and total victory for JED SILVERMAN andSTEVE GONZALEZ. The disconnect between thec1icnt's allcgcd BAC and his actual appearance, as wcll asa cross-examination focusing on an insufficient period ofobservation were the keys to the acquittal. And, then, inHarris County Criminal Court-at-Law No. 11, Jcd won amotion to suppress a .144 BAC after Jed's litigation skillsled Judge Diane Bull to question the arresting officer'scredibility regarding the reasonable suspicion for the stop.

The client was charged with theft, but LORI BOTELLOcut the State off at the prosecutorial pass by securing agrand jury no-bill.

@TNlDlflNllER

Although her aggravated robbery client had been pickedout of a photo lineup as the perpetrator and the offer was10 years in TDCJ, KIMBERLY SAMMAN got the Stateto dismiss the case after convincing prosecutors that theidentification was suspect. Kimberly thanked David Adler,Chris Tritico and brother Shawn Rudisc1 for their advice.

After deliberating 25 minutes (15 of which were spentwatching the video), a San Jacinto County jury exoneratedDORIAN COTLAR's client of OWl.

The State was offering five years in TOeJ in return for a pleato a second degree felony, but JEFF PURVIS eonvioceda Brazoria County jury to return a verdict for a Class Cmisdemeanor (1) and the judge to levy only a $500 fine inpunishment.

After LEmA GRACIA gutted the State's OWl case bywinning suppression of the HGN, the walk and turn, andthe station video, she persuaded the court to enter judgmentof acquittal. We hear it was Leira's first OWl acquittal, butwe suspect it won't be her last.

Despite a plethora ofunhclpful hearsay evidence, RICKOLIVER still secured a two-word verdict in a OWl trialin Harris County Criminal Court-at-Law NO.13.

It looked bad when the cops stopped the client for atraffic violation and found crystal meth in the gas capcompartment, but BO HOPMANN got the cop to admitduring the suppression hearing in a Beaumont drug courtthat he had only a hunch or suspicion for his search.Viola! Tbejudge suppressed the evidence.

Example # 4,526 in why you should set your case fortrial: when the cops had 10 take the stand in RANDALLKALLlNEN's de novo appeal ofa public inebriationconviction, the State instead decided to dismiss theconviction.

JIM MEDLEY won another OWl case, this time in HarrisCounty Criminal Court-at-Law No.1.

The c1iem was convictcd of murder in the death of afIrefIghtcr and scntenced to 10 years probation witb anumber of costly and humiliating conditions. The Statesought 10 violate the client after one failure to reportin 10 years and other picayune omissions, but ALVINNUNNERY waged a Iwo-day bailIe on the mOlion torevoke probalion and persuaded the court to deny saidmotion.

II was her firsl jury trial and a DWI case, 10 boot, butSUNSHINE SWALLERS heard those two words everylawyer and her client love to hear. nOI guill)'!

The jury was sworn and opening stalements held inHarris County Criminal Court·at-Law No. I, but whenil was timc for DA YIO RYAN 10 cross-examine thearresting officer, said cop refused 10 allow the crossto occur, so the court entered a directed verdict ofacquittal. Later in Ihe same week and the same coun,David heard the jury acquit his client after only 17minutes of deliberation.

Criminal defense lawyers don'l need reminding thaieconomic times are tough. In Harris Counl)' CriminalCoun-at-Law No.4, thc client was very concernedthat, ifawarded probation by the jury, he did not havethe funds to pay all fines and court costs on the daythe sentence was delivered, as the court requires. ButROBERT EUTSLER relieved the client's worries bywinning an acquittal.

At age 15, the clicnt first downloaded alleged child pornand uploaded somc photos to a file-sharing websitc. Atage 17, he was charged with Possession and PromotionofChild Pornography and faced lifetime registrationas a sex offender. Then JlM SULLIVAN slepped illand persuaded thc prosecution to dismiss the case in theI 76th Districi Coun and refile in juvenile court. Oneweek before the client's 18th birthday, Jim obtaineda five-year detcnninate sentence of probation and adeferred decision regarding registration, thereby givingthe client his life back. Said Jim, "This is the first time Ihave managed to persuade the Stale to dismiss an adultcase and refile in juvenile court." We suspect it won'tbe the lasl time.

HCCLM~mfoupHCClA SUPPORtST-TlmES

HCCLA WelcomesThe FollowingNew Members:

Additionally. HeCLA is sponsoring another Big for a Day TeeTime on March 20, 2010 where our volunteers will playa round ofputt-putt golf with the kids.

'"I V.•elld.1IBill LuthersRicltln J.lIn. Jr.Di••e S. MaRsonBe,erly D. MelilltreeB. hlue NewsomBollby D. Williams, Jr.

PUBLICATIONS

TEXAS~L E GA L

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OfflC....lIOOlU"TORI fOR YHl TlXM CRIMINAl.IXH"'.I. .....WYtU MSOC....TIOH

HeClA, in conjunction with !he

Amachi Texas Mentor program (a

branch of Big Brothers Big Sisters

of Greater Houston), sponsored

and participated in the Big for a

Day's Tea Time event. Volunteers

from HeCLA spent the afternoon

with children, during lea lime, on

Febn1aty 27, 2010. What a great

way to make a difference in the

lives of at-risk youth!

Being aSmartSecond Chair Protege!Hints for Helping Your First Chair Help Youby Sarah V. Wood

• Understand that the benefits of a mentoring relationship are notautomatic and it may be up to you to drive the relationship.

• Take the initiative and maintain consistent contact with your firstchair. "at first they doo't respond. try. try again. They're probablyjust bUsy winning cases.

• Make every effort to meet in person with your first chair. Shadowingthem in court is often the most effective way to establish criticalpersonal contact. This gives you a good chance to see your first chairin action while getting to ask your own questions face to face. Ask,-Would there be a good day next week for me to meet you in court?"

• Frequently express your desire to assist. Ask, ~Is there anything I cando to help you this week?"

• Make sure your first chair is aware of your special talents andexpertise so that you can operate together as an effective team.

• Tell your first chair about your interesting or challenging cases,Most knowledgeable lawyers can't help but offer a suggestion whenpresented with a fact pattern,

• let your first chair know who you are. Infonning them of yourlife situation as well as your professional goals will give them theperspective necessary to best support you.

• Work hard. Do your homework, go the extra mite, and it will show.Demonstrating competence will actually encourage your first chair todo more for you,

• Make mentorship as gratifying as possible for your first chair.Always express your appreciation and share your successes. Keepyour first chair engaged with polite conversation. Celebrate their ownaccomplishments and promote their reputation.

• Realize that your first chair's responsibility is not to get you a job ordesign a lesson plan, View the program as an opportunity to build afriendly and mutually beneficial relationship,

• Maintain strict confidentiality and always respect the dignity of clientsand the authority of your first chair.

• Always uphold the highest ethical and professional standards as arepresentative of the HCCLA Second Chair Program.

..

Defense-Initiated Victim Outreach

By Marilyn Peterson Annour Ph.D.and Stephanie Frogge, MTS, CTS

@T1lEnmOlR

Ctminal dcfcnsc attorneys seeking to raise their standards ofpractice incapital cases have 8 new tool for their toolkit in Defense-Initiated VictimOutreach (DIVD). DIVQ is a mechanism thaI sreks to address the judicialneeds of victim survivors throughout the justice process by providing alink between the survivor> and the defense. A significant departure fromtraditional criminal justice-based victim !leTVices, DIVO serves as amethodby which survivor families, if they choose, may ha\'C access to the defenseteam. The defense team in return can give oonsidCl1ltion to requests fromsurvivor families.

Potential benefits to the victim survivor include the possibility ofinformation about the crime or the defendant, input inlo plea agreements,empowerment through communication with the defense, and, in someinstances, influencing the defense team's behavior in minor ways. Byentering into DiVa, the defense agrees 10 respond in some fashion toevery communication - which provides for a measure of control to thevictim survivor in a typically adversarial environment in which Ihey arenOI even a party.

1:e response will often be, "I am sorry, but we cannot provide you withthat infonnation at this time." Communication between the survivors andthe trial team will be through a victim outreach specialist (VOS). The VOSwill not be a member ofthe trial team, !lOT win be privy 10 any confidentialor privileged defense infonnation. The OIVOactivity must oot compromisethe lawyer's zealous advocacy on behalfof his chenl

OIVO is not an anti.dcath penalty initiative, and therefore is not dependenton the victim survivor's view about punishment. Participation in DTVOby the victim survivor is strictly voluntary, aOO the VOS only shares withthe defense information that the survivor has given express permission tobe shared. Although D1VO is not a means by which the defense can askquestions of the survivor family or seek their opinion about punishment,by creating the possibility of a relationship, such information may beforthcoming.

in no way intending to diminish orcircumvenl any legal privilege accordeda person charged with a crime, survivor family's needs specific to thedefense may indude having representatives of the offender hear theirstory and acknowledge the loss they have suffered or listen patiently andcompassionately to the angcr victim survi\'ors feel toward the defendant.They may want infonnation about how and why a crime happened andspecifics about their loved one in the last moments of their life, They maywant to know why the defendant pled not guilty after confessing, or evenadditional infonnatioo about the defense team itself. Survivor familiesmay request that court proceedings not be scheduled on significant familydates or even indicate whether or not they wish to be acknowledged by thedefense team during such hearings.

DTVO recognizes and supports a defendant's Sixth Amendment right to theeffective assistance ofcounsel. One ofthe unfortunate consequences of theadversarial system, however, bas been the stereotyping and dehwnanizingthat often occurs of one side by the other so that victim survivors are notrecognized other than how they may be useful to the defense or as thepeople in the courtroom filled with hate towards the elient and trial team. ina tJaditionai criminal dcfense practice, thc needs ofthc survivors may neverbe known or addressed. In additKnt to reducing unnecessary harshnessand tension in the current criminal justice system betv.'een \ictim familiesand defense attorneys, DIVO also works to acknowledge and act upon theinvoluntary, and often unspoken, relationship that exists between the victimsurvivors and the offender in the aftermath of murder. This relatiooshipextends, in some part, to the trial team as well.

Criminal defense attorneys are finding that acting with civility toward thesurvivor family can provide them with some dignity, create a less hostileenvironment, and lessen, to some extent, aspects ofthe adversarialjudieialprocess that tend to re-traumatize the survivors.

Amore civil environment can be bencficiailO their client and can also serveas a principled way for defense counsel to acknowledge the harm done tothe victim survivors.

The need for DlVO is underscored by the American Bar Association'sGuidelines for the Appointment and Performance ofDefense Counsel inDeath Penalty Cases, reprinted in 31 HOFSTRA L. REV. 1091 (2003),and the Standards and Guidelincs for Tcxas Capital Counsel, adoptedApril 21, 2006 by the Texas State Bar and published in 69 TEX. B. J.966 (2006). These Guidelines include defense outreach to survivors asnecessary to the effective representation of a capital client. The UnitedStates Army Court of Criminal Appeals reached the same conclusion inUnited States v. Kreutzer, 61 MJ. 293 (C.A.A.F. 2005), where it founddefense counsel ineffwive for failing to reach out to murder survivors.

Texas currently has 23 trained victim outreach specialists who can serveas the conduit between the defense and victim survivors in cases wherethe defense have determined such services to be useful and have securedfunding. Following a carefully crafted protocol designed to ensure theintegrity of the process and the prot~tion of the victim survivors, theVOS makes contact to detennine what needs might exist that the defensecan address.

DTVO offers an ethical, principled bridge between the survivor family andthe defense counsel in capital cases that can be used at different stages inthe criminal justice process: during the trial, appellatc and post-convictionproceedings, or whenever it may be initialed by the defense team. It alsooffers a more active and empowering role for victim survivors in deathpenalty cases without compromising the due process rights of capitaldefendants. It increases options - and control over those options for victimsurvivors and opens up the possibility that the defense team's expressionsof civility and sympathy to the survivors throughout the process, may,paradoxically, be reciprocated.

For more information aboulthe DlVO program in Texas, which is partof the Institute for Restorative Justicc and Rcstorative Dialogue inthe School of Social Work at the University of Texas at Austin, emaildivo@austin.utexas,edu.

Marilyll Peterson Armour is an Associate Profwor at the School ofSocialWork at the UnivmityofTexas at Austin. Her research interests includerestorative justice and the families afhomicide victims.

Stephanie Frogge is a Lecturer in the School ofSocwl Work at theUniversity ofTexas at Austin. Her research interests include restorativejustice issues in capital cases and the nexus between af/er-deathcommunication and survil'(jr copingfol/owing the death ofa lo~'ed one,

'"(HR:NDU ®

®..-

Attorney Strategy:

Don't Mess--.-----

with Texas

Terrain is not neutral-it either helps or hinders each of the opposed forces.Commanders must develop an eye for terrain; they must recognize its limitations and

possibilities for protecting friendly forces and putting the enemy at a disadvantage.Successful commanders understand terrain and how it affects operations. They are able

to grasp the potential capabilities and limitations ofthe space in which they operate.us. Army Field Manual 100-51

It's fashionable among defense lawyers to knockTexas criminal practice. The assumption is that Texasis somehow behind the times, almost medieval in itscriminal procedure, to the detriment of those unfortunateenough to find themselves accused in a Texas court.Even a superficial analysis shows this assumption tobe altogether false; Texas defendants enjoy many basicrights denied to the accused in other American systems ofcriminal jurisprudence.

Several years ago I attended a seminar on federal practice,sponsored by the Federal Public Defender's office. It wasno surprise that the speakers wcre mostly federal defenders,other federal employees, or lawyers who practice in federalcourt more-or-Iess exclusively. Several were fulsome intheir praise of the "Article III courts" as a great forum thatprovides manifold opportunities for defense lawyers toexercise creativity in defending clients.

A student raised his hand and took issue, pointing out thatthcre arc many rights Texas defendants have that federaldefendants do not. That set me to thinking. I abandonedmy note-taking, took a fresh sheet of paper, and startedlisting them off the top of my head. It was apparenl thatthe objector was right.

Terrain is essential to consider at all levels of militarystrategy, from the infantry squad inching its way throughajungle in 1967, to the clash of titanic anny groups in theSoviet steppes in 1941. It is one factor that commanderscan do nothing to alter.2 Strategy and tactics must beadjusted to the terrain, and not the other way around.

Here I argue that the "terrain" in Texas favors defendantsover that in the federal system, and by implication, in thestates that more-or-Iess follow federal practice.

What follows is not an exclusive list of Texas lawbeneficial to the defense. It is also not my intention todelve into the intricacies of case law and local practice.But I think the following examples demonstrate that ifone must be indicted, Texas might not be such a bad placeafter all.

The Corroboration Rule

In federal court a defendant can be convicted solely on thetestimony of a co-defendant, accomplice, or co-conspirator.United States v. Arledge, 553 F.3d 881 (5th Cir. 2008).This is especially true where the judge gives the jury aninstruction on accomplice testimony. United States v.Osum, 943 F.2d 1394 (5th Cir. 1991).

Contrast this with the situation in Texas. Article 38.14of the Texas Code of Criminal Procedure is a generalcorroboration statute that requires corroborationof accomplice testimony. Article 38.141 requirescorroboration of a witness who is not a peace officer, butwho is acting covertly on behalfof law enforcement. AndSenate Bill 1681 recently established Art. 38.075, whichimposes a new corroboration requirement on jailhousesnitches.

This is a substantial additional burden on the prosecution.Many cases which would be upheld in the federal courtswould fail in state court because of the corroboration rule.At trial, because Te",as law requires jury instructions onaccomplices both as a mailer of law and as a mailer offact,there are opportunities for good lawyering. Smith v. State,286 S.W.3d 412 (Tex. App.-Corpus Christi 2008).

Jury Punishment

Article III and the Sixth Amendment to the United StatesConstitution provide a right to a jury trial, but that rightextends to the issue of guilt only (the Eighth Amendmentrequires ajury to assess punishment in capital cases. Ringv. Arizona, 536 U.S. 584 (2002»).

In Texas the defendant can elect whether he wants thejudge or the jury to assess punishment after a jury trial.Tex. Code Crim. Proc. art. 37.07 2(b). This election is astatutory right, not a constitutional right. Tinney v. State,578 S.W.2d 137, 138 (Tex. Crim. App. 1979). It appliesto felonies and misdemeanors punishable by jail.

TNIDlflIllEI@

This is a huge advantage. If you are in federal courtfacing a "hanging judge," you're stuck. There's simply nodecision for the lawyer to make. But in Texas you can, andmust, carefully size up the judge and thc prospective jurypool, look at your client and his facts, and decide who willsentence. And the prosecutor has nothing to say about it.

Probation Eligibility

There is no general probation eligibility in federal court.Look at the sentencing guidelines; although they arc nolonger mandatory, almost everyone convicted of a federalcrime will do some amount of time in prison.

In Texas, Article 42.12 ofthe Code ofCriminaI Proceduregives defendants a general right to be considered forprobation if they have never been convicted of a felonyand punishment is assessed at 10 years or less, ellceptingonly a few offenscs.

This is another advantage which works several ways forthe defense. First, it is possible to be convicted of a veryserious crime, such as aggravated robbery with a fireann,and still avoid any prison time if the jury sees fit to grantprobation. Second, when the prosecutor knows your clientis probation eligible, it provides him with an incentiveto offer a bettcr pica bargain. Third, it is widely believcdthat the presence of probation on the table during jurydeliberation causes juries to agree on a lower sentence ofimprisonment than they otherwise would have imposed.

No Sentencing Guidelines

Federal judges were bound by mandatory sentencingguidelines. Even after United Slates v. Booker, 543 U.S.220 (2005), which made the guidelines merely advisory,federal judges still continue to follow them in mostinstances. These guidelines apply complicated fonnulae toa defendant's offense, criminal history, and aggravating andmitigating factors, and specifically exclude some factorsthat defense lawyers think are relevant to sentencing. Theresult is that the defendant falls into a cell in a matrill whichspecifies a narrow range of punishment.

Tellas law docs not contain guidelines. Rather, thePcnal Code specifics ranges of punishment which arebroader than the approach in the Federal guidelines. Forellample, a person accused of aggravated robbery whois probation-eligible can receive as little as five yearsprobation and as much as lifc in prison. This extremerange generates much uncertainty, but the defense lawyer

®THEDlfEffDER

can use that uncertainty to his advantage if he has anattractive client. Whether the defense elects judge orjury punishment, a broad range of punishment allows thedcfense attorney the opportunity to present mitigatingevidence such as age, mental condition, prior militarysenrice, medical problems, susceptibility to peer pressure,family and community tics, and the like, which could noteven be considered under the federal guidelines.

Admissibility of Statements

Federal law allows the admissibility of a defendant'sstatements in any fonn. [n other words, as long as therecord shows that Miranda was complied with, oralstatements come in. [f a defendant denies making an oralstatement, it's his word against that of the agents.

But in Tellas the admissibility ofstatements which are theproduct of custodial interrogation is governed by Article38.22 of the Texas Code of Criminal Procedure. Thisstatute requires a recording or a writing, and the Mirandawarnings have to appear in the recording or writing.This prevents law enforcement from testifying that thedefendant responded orally to custodial interrogation.Many statements, or purported statements, of thedefendant that would be admissible in Federal court arenot admissible in Texas courts.

Enlusionary Rule

In federal court, the only searches and seizures affectedby the Fourth Amendment are those that are the result ofgovernmental action. Burdeau v. McDowell, 256 U.S. 465(1921). In other words, only searches by police, or personsacting at the direction of the police, implicate the FourthAmendment.

However, Article 38.23 of the Tellas Code of CriminalProcedure provides that "No evidence obtained by anofficer or other person ..." is admissible if it was obtainedin violation of the constitution or laws ofeither the UnitedStates or ofTellas. A "private scarch" by a person who isnOI a peace officer, which is in violation of the law, willrender any items seized inadmissible. Livings/on v. Slate,731 S.W2d 744 (Tex. App.--Beaumont 1987, pet. rerd).

This distinction is often missed: If a burglar breaks intoa house and discovers child pornography, that evidenceis admissible in federal court, because the burglar wasnot acting at the direction of law enforcement. In Texas,because the burglar was violating the law when he foundthe porn, it is not admissible.

Additionally, the Texas ~good faith" exception, enactedas Article 38.23(b) of the Code ofCriminal Procedure, isnot coextensive with the federal "good faith" exceptionbut applies only if the supporting affidavit states probablecause. See Gordon v. Stale, 801 S.W.2d 899 (Tex. Crim.App.1990).

Timing of Motions to Suppress

Rule 12 of the Federal Rules of Criminal Procedurespecifically requires motions to suppress to be made inadvance oftrial. Judges typically issue a scheduling orderthat requires the defense 10 notify the prosecutor of theirinteOl 10 move 10 suppress well in advance of the trialdale.

Under Texas law, a mOlion 10 suppress need nOI be inwriting and can be made at the time the evidence is offered.Johnson v. State, 743 S.W.2d 306 (Tex.App.-San Antonio1987, no pet.); Roberts v. State, 545 S.W.2d 157 (Tex.Crim. App. 1977). Not only does this afford the defense anopportunity to surprise the prosecutor, such a motion canbe made after jeopardy has attached.

Voir Dire

Rule 24 ofthe Federal Rules ofCriminal Procedure stalesthat the judge may examine prospective jurors, or theparties may be pennitted to examine them. If the judgedoes the voir dire, the parties have the right to either askadditional proper questions or submit them 10 the judgewho shall ask them.

In Texas the defense has the absolute right to conductits voir dire, even to the extent of asking questions thathave already been asked by the judge and the prosecutor.McCarter v. Stale, 837 S.W.2d 117 (Tex. Crim. App.1992).

This can be another huge advantage to the defense. In afederal trial where the judge conducts all the voir dire, thedefense lawyer is denied the opportunity to make contaclwith the jurors, to ask his questions in his own style; inshort, he is prohibited from conversing with the panel.

Not so in Texas, where his advocacy can begin with his firstwords to the venire.

Reciprocal Discovery

Rule 16 of Federal Rules of Criminal Procedure providesthat if the defense requests inspection and copying ofdocuments and objects, and the prosecutor complies, thenthe prosecutor can make a similar discovery request of thedefendant

Texas discovery is governed by Article 39.14, which docsnot provide for reciprocal discovery, except in the case ofexpert witnesses.

The federal rule imposes a choice on the defendant: docs heforego discovery in order to retain surprise? Or does he gethis discovery and perhaps pay a price? Texas law creates nosuch dilemma. A Texas defendant can (and should) requestdiscovery without the burden of reciprocation.

Grand Jury Presentations

It is a crime to attempt to influence a federal grand jury bywritten communication. 18 U.S.C. § 1504. By contrast, itis an accepted part ofTexas practice to make written grandjury prcsentations. Most of us have had cascs no-billcdbecause of such action.

Right to Bail

There is no federal constitutional right to bail, and neitheris there a statutory one. 18 U.S.C. §3142. A detentionhearing may be held and your client locked up for theduration of the war.

By eontrast,Article I, Section 11 ofthe Texas Constitutionprovides that all prisoners shall be bailable, except incapital cases where proof is evident. In a very few othersituations the State must move to deny bail within sevendays, and if the court grants that motion, the defendant isentitled to bail 60 days later.

®THEDlfEffDER

Deferred Adjudication

There is no deferred adjudication in federal coun.

There is in Texas: Article 42.12 § 5 of the Texas Code ofCriminal Procedure. This of course allows a defendant todispose of his case without a final conviction.

Severance

There is no mandatory severance in federal coun. Rule 14of the Federal Rules of Criminal Procedure provides that thecourt may sever defendants or counts if it appears that thedefendant will be prejudiced. The defense bears the burdenof showing substantial prejudice. Zafiro v. United States, 506U.s. 534 (1992).

Texas law provides for severance of offenses as a matterof right. Tex. Penal Code § 3.04. Also there is mandatoryseverance of parties if the co-defcndant has an admissibleprior conviction and the movant does not. Tex. Code Crim.Proc. an. 36.09; Haggerty v. State, 825 S.W.2d 545, 547(Tex. App.-Houston [1st Dist.] 1992, no pc!.)

Cross-Examination

Rule 611 of the Federal Rules of Evidence limits cross tothe subject mailer of the direct examination and witnesscredibility. The court has discretion to pennit other cross.Rule 611 of the Texas Rules of Evidence states, "A witnessmay be cross-examined on any matter relevant to anyissue in the case, including credibility." The right tocross-examine is "broad and wide-ranging and extends toany matter relevant to the issues." Woodall v. State, 216S.W.3d 530 (Tex. App. - Texarkana 2007). Texas cross hasbeen described as "wide-open." Crosby v. State, 696 S.W.2d388 (Tex.App.---Dallas 1985), rev'd 750 S.w'2d 768 (Tex.Crim. App. 1987).

These are some examples of favorable terrain. Doubtless thereader can think of others.

In light of all this, the conclusion is incscapable that the''terrain'' in Texas favors the defense. Texas criminal practiceaffords defendants many more basic rights and advantagesthan does the federal system and, therefore. the Texas defenselawyer has many more opportunities to make decisions andexercise strategy. If you want to do some terrain-intensivestrategy and creative lawyering for your clients, Texas, notthe federal system, is the place to be.

I Deparunent of the Anny (1993).

1 Although tons ofAgent Orange defoliant were dropped onVietnam, it is considered to have had little effect on the junglecanopy.

DW~ QLOODDeFeNSe:Part ill, Preparation and Trial

by Kdly w. =

This is the flflal article ofa IM»part series on defending the OWlcase based 00 a blood wammt Since: this series began. I havebeen asked by oomcrous lIll<:lm:yS roc assistance with such cac;es

am I have Icamcd somcIh.ing with C\'a)' case I revieY.r. Doo.'\ beafraid to ask qucstXm and admit thai )W doo'l koow everything.Fewofus do...wcl~ with a fcwcxccptiMs We an: here to helpeach ocher get better at wha1 we do and the only way 10 do that isto share infamation.

Some ofthe most important 1essom are as CoBo",'!>:

Don't assume that the State is correct. In fact, assume theopposite. This should be self expIanaJory. tM~ rime I bearthat the prosecuur teU the judge how the gowmmenl gets it rightand we should trust their labs lUX! scientific resullS, my "spidcrseme" SlartS tingling. Yours should, 100.

Earlier this year, we had a week that began with below-free2ingtemperatures and ended with~ in thenUd-70's-aJ] inthe span of a few days. Tanpcrature affects the growth ofbacteria, which is one more reason we should always know thetemperature on the day ofour client's alleged offmse, as well ashow long the blood sample wenllll\refiigerated.

The one thing that the State does not want to disclose to youwill usually be the Item that Is most important to yourdefense. Fight for it Nobody ... and I mean nobody respects alawyer that is 100 afiaid to stand up for their client Yourprofession requires you to fight for your client, so don'! be afraidto mix it up sometimes.

Question e\'U')1hing and.wek aIJ5\ol-en from eIpeI1S andotbeI- qualified defense altonJe)'S. We are on cutting edgeof defeno;e with these blood ca:scs ftr the Stare ofTexl5.There is a huge amount of good W~ can do if we make the

right arguments early in this battle. Your experts and moreexpcrin:ed fellow defeme anomeys can be a huge helpandyou should ask questions of t\-e:rything dealing with your

"""Go back to the basics! This may seem selfexpIanarmy, buIdon't forget that the State IOOSI still put 00 evldfn:;e ofeadiand every one ofthe demenlS ofDWT. Unless theyClDl doso, they don't gel: pll'il a directed verdict. Sometimes thelenderx:y is for both sides to get so wrapped up in theproseculion and defense ofthe scientific evidenre, that oneside or the OCher 0\IC't00ks the fact that the State has failed toprove one ofthe basic ek:men1S ofthe offense.

Become • civil attorney! I say this with tongue in cheek.Ask any civil attorney where most oftheir time is spent andit is requesting for or !"C:SpO[¥Iing to discovery. We need toimprove our discovery requestS and make the State get usour evidence,

--@

Leading up to !he trial ofa OWl case based on a blood draw, youmust be cettain !hat you have requested and obtained all of !hediscovery to which you are entitled. This means that there shouldbe no!hing left to chance. If the prosecution claims an open filepolicy,do not be satisfied. Make a recordofyourrequcstsand!heprosecutors' responses. Don't be afraid to sct hearing<> on motionsto compel and makc a record ofwhy !he State will not or cannotdisclose theircvidcncc.

1llC best one I have heard is wi!h one brea!h a prosecutor claims!hat!hc office maintains an open filc policy ruK! in the ncxt brea!hargues that !he evidcncc you arc requesting is "not in my file."VeritY that the discovery motion has been signed by the judge,and you have obtained everything !hat was ordered to bedisclosed at least one mon!h prior to !he trial date. Anygamesmanship by the prosecutor in providing late discoveryshould at least be growxls for a continuance, arK! may besuffieicn.t cnoogh for sanctions. You have to know your judgewell enough to know whether you can prevail on a sanctionslllotion as we have all been in courts where the State can "do nowrong:' Just ask Sharon Keller.

Discovery is where a large portion of!hese cases are won or lost.And you should re-familiarize yotrrsclfwi!h the important TexasCourt of Criminal Appeals and United States Supreme Courtdecisions regarding the prosecutor's afjimJOliveduty to disclose.'Put the burden on the State (0 disclose everythiflg that is. or couldpotentially be exculpatOl)' or impeachment evidence. If theprosecutor claims that the evidence does not exist, obtain an

@THEDEFUlD1R

affidavit of non-existence from !he custodian of records for !heagency in question or make a record of the steps taken by theprosecutor to secure the evidence you believe exists. Then whenit shows up on the day of trial, at the very least you have groundsfor a continuance.

In your prcpamtion for trial, you may find that the vampire docsnot wish to discuss thc case with you. Document the dates andtimes you left messages for them and then request a dcposition.2

In the motion, make a record by listing the dates and times ofthemessages you left.

Prior to setting the case for trial, you should have obtained yourexpert's opinion and developed yourthoory ofthe defense that isconsistent wi!h the expert's review of the evidence. Ideally, youhave had time to develop the case through further recommendedtesting by your expert, or been able to dctcnninc problems withthe State's proof. Just remember that arlY additional testing yourequest will most likely have to be disclosed to the prosecution.This is why I do not recommend additional alcohol testing onyourclicn.t's sample.

Prior to 2009, the Drs lab on West Road was considered by localdefense attorneys to be one of the best in the area. However,recently, the discovery responses from the lab have proven to beproblematic for the State. For example, in Montgomery County,the State was prosecuting an accused citizen for IntoxicationManslaughter based on lab results of a .09 blood alcohol levelfollowing a fatal accident. FOltUnately, the savvydcfensc attomey

listened to his clicnt when his clicnt insisted that he did not havcCIIOIJgh to drink to reach thai level. While 1don'l rcconunendlCSting the blood for BAC, that is exactly what this attorney didand the result was .~. W'hen this was brought 10 the DA's

altCl1tion. the blood was ro-tCSled al Drs lab and the case wasdismissed.

How can a Drs lab make this son oferror and still be accredited?The accused's liberty was hanging in the balance and all he go!

was a '~ny bad" fium the State! To my knowledge, there hasncver been any inquiry into how this could have happcocd andthe OffICe of the District Attorney still ~ this lab 'Withconfidence." Outragoous!

This paper assUlTlCS you have a basic working knowledge of theproccdwt:S and science behind blood alcohol testing. This is ahuge assumption bemuse as [ said. [ am slilllC3l11ing this afterseveral years. Look for scminarn in areas of your v."Cakncss orbeg. borrow orsteal materials from otherattorneys 10 assist you inyour prcparation.I);x]'tleavc anything 10 chance. You may havca nur.;c on your panel who knows the proper procedur'c$ andknows !hey are not followed for CVCl)' blood draw.

So, when the Statc's witness takes the stand and claims 10 havcfollowed the exact procedwt:S each and cvcl)' tinle, withoutexception, and claims thai she is "dead on, balls accurate" (a laMy Cousin Vill/ry) eYCT)'single time, your nur.;c on the panel willknow that witness cannot be trusted. Ideally, your other jurorswill piek up on that fium your voir dire questioning of the nurse,evcn if the nur.;c docs not cventually sil on the jUlY. Unless youknow those proccdurcs, you win notgain the nurse's vote when itcomes time for the jUlY 10 decide.

Th.SI im"ilu illuSlrll. Ill.ite... 'fOU will fin<! in Ill. blooddrlW kll. Mak. ,urt 10 c~t<:k

all dal.. listed on d....~_..

During voir dire. you win find that at least some of the panelrncm~ think the State is going bcyorxl acccplable limits whenit forcefully takes a JlC'I'SOI1's blood. Evcn in OOllSCJ'\'ativcMontgomery County as moch as half of the panel will believethat the State has gone too far. Exclude those who believeotherwise on consIitutional grounds

In almost all of the cases 1have defended there has been at leastooc nur.>c and one other person who has visited jail. Get themtalking. Ask the nurse questions aOOut how important it is tofollow established procedures. Ifyour clienl's blood was dra\\l1 atthe jail, ~'CI the jail visitor talking aOOut the jail's sanitaryconditiorls.

One ofmy heroes, GaryTrichter, has published numerous ankleson DWI voir dire that are better than anything I could hope 10

produce. Review his articles and apply those great lessons to yourcase.The trial ofa DWl blood case is no different than anyotherOWl case. Makc the State prove each and every one of theclements. Hold them to their burden of proof. Thoroughlyprepare for your cross-examinations. Conduct a devastatingcross-examination by properly questioning the wilflCSS. By this, rmean that a proper cross-examination is one thai leaves thewitness with only one answer, usually yes. Ifyou do IlOt controlthe witncsscs, then you arc not cngaging in propercross-examinalion.'

lk,.A6.1:l41

• anAssoriale HeClA !\ICllIbcr.we do appointed and ,>aitl workfor many HCCLA memhers.

(281) 440-0800Email:

lJ@Gradoni.com

tHl DEfEntl @

OWl Blood Defense: Part III, Preparation and Trial 1_There ore so mooy defenses to one of these cases that I ccn'IOt

possibly bt 1hem all Some of the more oommon prosecukrioJ errorsthat I hove seen ore:

I J) Probable couse affidavits that ore coodusory, improperlyobtained orf~

2) Foilure to follow proper procedures to obto... 0 werrant'

])) Failure to property sanitize the room where the draw wasoonducted

4n Failure to properly dean the site of 1he draw on theocx:used's ann

5nMixflg of blood viols from outside sources

6n Failure to ocllere to lrivefscl pre<DUtions and bIoodbomepathogens g<jder"""

7» Failure to insert the needle property, or not knowing wherethe needle was hserted [I'lducfng wrong angle or i1to 0 vein)

8n Blood viols are sealed improperly

9)) Blood viols are inverted improperly

IOn Blood viols are not stored correctty (no refrigeration orrefrigeration offer several do)'5 have elapsed)

11» Blood viol is improperly labeled and improperlytransported to lob or transported to wrong lab

12)) Blood kit has expired, expiration dote has elapsed onblood viol

13» Blood has seeped out (what seeped ;nl)

141> Kit qvestiomoires and doo..mentation are incomplete

15» The lob has improperly maintained the GC/MS, pipettes,or any of the other equipment used to test your crleflt's blood

16» The analyst had not passed the profICiency exam andwos not capable of conducting the test

17nThe GC/MS coIurms were contaminated as evidencedby additional elements on chromatogram

18)1 Blood coagulation lead to higher BAC result

19)1 Improper pipette storage lead to oontamination fromprevious sample tested

20n Improper alllCUlt of blood was obtaned in vial

0"'......

The available defenses are 100 nwnerous Ie belisted. You ll11.1'iI have a good underslanding ofthe available defm;es and rely on your expert Ie

assist you in dcvcloping your Iboory ofthe case.But more importantly, you ItMl UlXbstand thateven your expert may IWlt be able Ie provide youwith all avmucs ofdefmding your client Youmust be familiar with your local jurisdiction'smanner of obtaining these blood draws so thatyou can effectively argue to your judge the bestpossibk defense based 00 the~ U'iCd inyourjurisdictiooand based upcn the facts ofyour

"'"Some ofthe witnesses you can expocl to see in aDWI blood trial are the arresting oflia2-, theindividual who drew the bklod, the custodian ofrecords from lhe 00spita1 or- jail, any alklitiooalofficers and possible nlJlSe witnesses, lab analystthat performed the analysis of your clieot'sbklod, and a Drug Reoognition Evalualor.l Yourwitnesses will include your expen, alSIOdian ofrecords in the event your client has a medicalcondition that would give rise to a valid defense,and possibly an SFST expert, your 0\\'11 DREand/or your c1M:nt's physician or someonefamiliar with your client's medical history 1O

explain that the client always looks like that!

Don't forget to brush up on your Daubert' law.There are some excellent internet sires availableto assist you with your research.1

Your pretrial motions packet should include arequesl for Nolicc of Experts and request for aDaubert hearing for every expert thai the Stateintends to call. Force the State to prove that theircxpert is qualified, the tess ocIministered arebased on valid methodologies, and the~wereproprerly administered in this case.

Don't assume that a Drug Recognition Evaluator is,. in fact, anexpert at drug recognition. Challenge these "experl'>" evety timeyou get the chance. Also, unless the Drug Recognition EvaluatorfollowOO all of the steps of the presmbed protocol, they should!lOt be alloo-ed lO give their testimony. DRE's are technicale:qx:rts. They must foIJow the steps involved or !heircoochmonsshouJd be inadmisslble. They are IlOl scimtific apeI1S and shouldnot be alloY..ed to draw oonclusions or~ !heirqHnion withoutthe State proving that they fol.lowtd thc~-steppma:dure k)

reach a conclusion. And the only opinion they are qualified togive is that afta following each and evr:ry step of!heir protocol,they determined that your client was intoxX:aIcd because ofingesting alcoboI or SOO1C drug. They are !lOt torimJogisls. solbJ.', let them get away with pn:tt:nding to be en:.

These trials can be very lengthy. Gcncrally, they are nu:b Ioogerthan the l&Iai OWl trial. Make sure your judge is aware ofhowIoog you anticipate the trial will last buI may go longer deplnIingon the witnesses.. IlCIljudges that to uyoneofthese cases, with amotion to~ and !he number of witnesses involved willtake a minimum of one week, possibly as much as two weeks.They balk, b.Jt I am not going to cut short my case to help themwith their docket - and neither should you.

If you I1a\-1:: taken the time to read !his article, then you are aprofessional lawyer and know what it takes to prqme for a longtrial. YooshouldhavechaJgedsufficientlytocoveryourexpensesand make: these cases worth your time. To adequately uy thesecases, you will ncOO aconsulting toxicoklgist and additionally aDrug Recognition Evaluator and a Standardized Field Sobriety

Testing expert.

These cases are long, detailoo and time consuming to try, but thatis what we, as profcssionallawycrs must do. Additionally, there isa large body ofmatcriaJ and additionallawycrs that have years ofexperience in 1OO;cC3SCS from different partS ofthc United States.I would strongly urge you to consider joining the NationalCollege for OUT Defense if your goal is to bcoome better atdefending these cases. Every year around the first week ofApril,the NCOO co-sponsors the "Mastering Scientific Evidence"COlUSC where the best attamcys and experts from all over theoo.mtrymcct Thisycar'sscminarwillbeheldfromApril8to 10,2010,inNcwOrl~

Finally, be sure that you and your staff can harxUe these casesfrom stlrt to finish. Be sure that your cliern undernnds the type

of oommitment that is involved in defending these cases and isaware that you are only the: mouthplcoc: and c:anrot testilY forthem as their expert.

Make a record to prcscrvc any appellate issues and alwaysremember that your ultimate audicn:::c may be the Court ofAppcaIs, not the judge orjury in front ofyou..

These cases will test your limits so n:mcmbcr that a problem cannever be solved with the samemirdsct that mated it Be creative,be meticulous and represent your clic:nt to the best ofyour ability.

Good lucid

I S«Kylnll If?IiIky,SI4 US419(I99S),UniledSJaterll Bagkly,473 U.s. 667 (1985), UrIiIedSlOles llAgurJ,427 U.s. fJ7 (1fJ76).Brady v. M.y\!ud. 373 U.s. 83 (1963).

1 T~CodcCrim.Proc.§39.02.

1 lany S. PamEr &. Roger J. Dodd, Ooss-£UlII1U,aliot,: Sdence andTedInique:l (2d cd 2(04).

• S«T~CodcCrim. Proc. § 18.01,tlMtl.

J Thc:se wimesses arc: NOT Drug Reoognitim Experts. 1f)WIRthat1I.nnirdogy, thol )'00 arc: buying into prosr:aIlOf's fill1acy and ~;ll

have a harder lime coo~irritg ywrjudge: they arc: not ccpots, wbel:l)'00 n:fcrrod to tbc:m as sx::h..

~ Dauben II MerriJJ Dow PharmooeuliaJIs. }ftC., S09 U.s. S79 (1993).

1 If)'OO GoogJc: DaubeTt, a tistofthesc sites will come up and severnIwill allow you to track Daubert cases in )'OUI'jurisdiction.

Kelly W. Case is an experienced criminal defense kmyer whopractices in Galveslon, Harris andMonlgomery rounties.

Forensic Science Resources"CrlNSCtnIllelatnletlH

FII'IIIIc SC.CI ClllnItlUlI.........,.ClIIIIftItIHCri..SCIIIIIVIItIIItI_IINlIIIIII PItlIn 111II1IISIlIInt IlIIItIftCldlI

.11r~..ClalIIIdII....__1_---...ICI......HIC- _mnm-m.__

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Networking your office computers can be relativclysimple. It also is a great way to share office files andavoid investing in redundant equipment such as printers.The savings, in real dollars by networking your officecan be incredible. When you factor in the time saved ingetting information between employees at the office andthe ability to work from home while accessing officeinformation not to mention the money saved sharing oneprinter with all of your employees instead of a printer alevery desk the savings arc obvious. Your business runson information (data). The ability to automatically 'backup' your data in a centralized location also provides acost saving, "business saving" potential. In the evenl youexperience a failure in your system you will have thepeace of mind knowing that each workstation has beenbacked up and the back up is current.

@TllElUUIli

Without a network you arc relying on each individual toback up their data regularly and to a secure commonlyknown location.

Soluud::llsut.~D"'I:llTDWgllll"'Cfl"1::::lII"IIt..Wl::lrk?

Let's take a look at a simple peer-to peer network or P2P.A pure P2P network docs not have the notion of clientsor servers hut only equal 'peer' nodes (PC's, printers,etc.) that simultaneously function as both "clients" and"servers" to the other nodes on the nelwork.

Networking your system can be explained in these steps:

» Sot.-lIp

» ITIilint.anilnc

» Aaliabilit.l.I

Sot.-upMost new and recently purchased computers are networkready in tcnns of both hardware and software. The only"on board'" hardware that is required, a network inlctjacecard (NIC) is an internal component that is faewryinstalled in most every PC and may be wired or wireless.This is your connection point 10 the network. To managedata tmffic between PC's and office equipment we usea router and switch. A router/switch basically directsNetwork traffic between networked devices. If youimagine a wagon wheel, the switch would be the commonpoint (hub) at which all PC's, printers internet modemsand network devices connect via cables (spokes).Should you desire a wireless network connection, awireless access point (WAP) can connect to the switch.Additionally a ...>ire/en networlc inteiface adaptor maybe required for your computers and network equipmentif they are not already "WiFi" or wireless compatible.A high speed inlernet connection inteiface is needed toconnect to the World Wide Web. A simple diagram ofthis physical layout may look something like this:

With your network physically in place, the next step inthe set-up process is to understand how to use and managesoftware to provide access to resourees and manage data;in a word, sharing. A right click of the mouse on anydevice, data file or folder that is resident on one computerwill navigate to this "sharing" option. Once shared, thepath to the device or data can be "mapped" from othernetwork computers, thus allowing the network dcvicc ordata resourcc to virtually cxist on any other network Pc.One important aspect of sharing is the ability to accessand save data in a secure commonly known location,allowing more efficient and reliable data management intenns of security and data back-up,

..............-System maintenance should always be deployed as aproactive etTort in the fonn ofa preventative maintenanceprogram. Prevelltative mailllenance (PM) simply stated;s the "good housekeeping" of your system hardware,software, and data. Physical and environmental elementsmake the largest contribution to data loss due to hardwarefailure, Virus attacks pose great threat. Data "clutier"naturally occurs and slows down system perfonnance.Software updates are commonly released by developersto increase perfonnance or "patch" software errors andareas that are vulnerable to virus attack. System logs anddevice profiles should be checked to verify the properfunction of system software and devices. A disciplinedPM program should not only provide optimumpcrfonnance of your system, It should also provideprotection through predictive: insight and action. Just asyou bUSt a mechanic for the maintenance of your car, it iswise to enlist an IT professional provide PM services andtcchnical assessment ofwhat's going on 'Under the bood"of your PC,

-..Data reliability is the most basic and critical aspects ofyour computer system management. Your important datacan be compromised from many fronts. Preventativemaintenance procedures are your front-line defensesystem. However, when a threat penetrates yourfront line defenses and dcslroys data, thc only path torecovery is to restore data from a previously created databackup. While virtually everyone is in agreemcnt of theimponance of backing up data, 11 is surprising how fewadequatcly deploy and maintain data backup disciplinesthat provide a reliable restoration and recovery pathwayfrom catastrophic data loss, Data reliability will generallyinclude regular data backups with local and otT-site datastorage. Also commonly overlooked is the preservation ofand access to computer opcroting system and applicationsoftware media. Data back-ups lire of no use if you cannotrestore the software that accesses and assimilates the data,Your original application software discs and registrationlicenses or product keys must be readily available forreinstallation in many dal.ll loss siluations such as a harddrive failure. Other tcchnologies such as drive mirroringand error chccking or parity can be deployed in order tofurther enhance data reliability.

Lester Lavin and Mark Hl'izdos operate Bayou CityCOllnceted, an IT services firm in Houston. They notethat real infonnarion technicians don't care to be refe"edto as "geeks" and cal/tion that, if yOl/r main contactwith IT is through a response "squad, .. )'01/ 'yc probablydeploying the wrong IT strategy.

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by Jim Willis

This edition of Investigator's comer will recap thediscussion topics from the past three editions.

Digital DNA is here to stay. As technology advances sodoes the ability to foUow one's actions. More peopleadvertise their entire life on the internet with sociaJ siteslike Facebook., MySpace, and Twitter. Current case lawgives the social sites protection from defense subpoenasfor eontent I have the current language available foranyone who would like to read it.

Surveillance cameras capture more events than anyonecan imagine. However, the retcntion time for camcrasvarics drastically. It is important to inquire and prescrvethe footage as soon as possiblc.

Computer forensics continuc 10 be a rapidly growing field.In many cases, the analysis is crhical to a proper defense.The most readily available evidence in everyone'spossession is a cell phone.

Cell phone teehnolollV has become an importantinvestigative tool. The cell phone can be used in anumber of ways if you know how to preserve the data.More important is getting the device to a qualifiedtechnician for downloading and documenting theinfo""ation. Many smart phones, just like computers,maintain the information even if deleted by the user.

Location technology: Cell phone signals can even pinpointan individual's location. Generally, a court on:Ier isneeded to obtain that infonnation. Requests pursuaDl tocourt Older take time to process and interpret, so moveearly when you need this information.

Text messaging: At the end of January 2010, Sprint joinedcell carriers Cricket, AT&T, Boost and T·Mobile in notretaining tcx.t-message content. Only the transmissionrecord of which device sent tex.t data to another devicewill be available. Verizon, meanwhile, will retain a"rolling calendar year" of data. All other carriers willhave transmission data available for the previous 45 to 60calcndar days.

As criminal defense aoorneys, you are ehallenged frommany angles, oot the least of which is wooong up cases~ith few resources. Prosecutors can be slow in providingdlsco~eryand making decisions, judges will not budge,and chents want everything immediately. The last thingyou need to do is wonder how you are going to fmel thetime to worle your case load.

Find an investigator that you ean work with and fonn aprofessional worleing environment. Once that relationshipis fonned, you will find your time is bener utilized. Justas prosecutors have their investigators, you, too, shouldhave the ability to use your investigator for assisting inthe case work up. More imponant, avoid making yourselfa witness in your own case. Do not let this happen toyou: conduct an interview of a potential witncss, then sixmonths later the witness wants to change their view of theinterview.

The World Investigators Conference will be in Dallas~rom.March II 10 13. Encourage your investigator toinqUIre. The training and ex.perience is invaluable. Iwelcome any requests that you may have in the area ofinvestigations or topics.

Jim Willis is a private investigator Yl'ith Benken &:Associates. He may be reached at 713·]]3-405 I andjwillispi@aof.com

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