for the defense€¦ · / defense i i volume 23, no. 2 features news - 24 innocent until proven...

F O R T H E D E F E N S E OM~clal Journal of the Texas Crlrninal Defense Lawyers Assoc~al~on February 1994

Mike McCohm Robert B. Ardis Assistant Course Director Sulphur Springs Anatomy of a DWI Trial Counsel on Mfller/Loveless Case

February 24-25,1994 . . Houston . . . , . .. ., s. . - . ~ ? . '

. . . . . . - . j l . . , . . . . , , . .~ . . .. . , I < , - ., - . . .... . . , .

FOR TH

63 1994 TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

Columns 10 President's Message: Taking Action on IRS Form 8300 Letters by Davld Bires and Knox Jones by David R. Bires

12 Discovery, Expert Witness Evidence and Rendering the Effective Assistance of Counsel by K q P. FitzGerald

20 The Batson Beat - Expanding Batson by Murk Stevm

35 DWI Practice Gems - A Little Scholarship and a Little Humor; Surviving in a World with DWI by J. Gary Trlchter

- - , ~ ~

-. , ~, . ~. ~- - . - . ~ +*& - --*>:= ~z@$.*r- - -.

Ii99344 'affi~'~*;:- .. .. .~ ~ . ,$ .. . ;- .i&; ;~ :&,&-* @&&:$$%*&: ., .-:<ed<e ,. "... ,;,i $ Prtsldent Executive Oommlttee Tim Evans

David R. BlresHouston David R. Biies, President William A. White Ronald L. Golanson David R. Birrs President-Blect

Ronald I. Gora~on-DaUas Bill Wischkaemper First Vice-president David L. Botsiod $gnas CrlminalDefeeSe

Bill Wixhkaemper-lubbock E. G. V3en-p Monis Educational InSii@s Second Vice-auildent Kent Alan W f f e r Executive Cohlml%

David L. Botsford--Austin Robert C. -ton George Roland, Chair Treasurer Beny Blackwell UWonL. .Scrappy' HOlmes

E.G. w G e w Morris-Austin DavM Canningham Ronald L. Goranson Seeremy Deborah A. GottUeh Tim Evans

Kent Alan Schaffer-Houston Lydia Clay-Jackson Dqid L. E@tsFord Keny P. FilzGerald Mike Brown

Frlends of TCDLA J. Pink Dickens Iaqueta Holmes, President CiimlnalDefense Iawveq Kyle Welch Jeanle Glbson, Vice-president Ptalect Bxecudve Oommlnee Weldon Holcbmb l i d a Wirchkaemper, Secretary GlWoh L "~crappr Holmes, Chab Lynn A. Malone Joan Weinberg, Treasurer Judge Rokrt D. Jones Bruce A. Mattin Claudia Hinton.DVeclor Weldon Holmmh David R. Bires Beny Keamey, Director Ronald I. Goranson BIlI Wischkaemper

Beth Martin, Dlrector Keny P. PitzGerald laqueta Domain Holmes Dain P. Whlhvorth

/ DEFENSE

I I Volume 23, No. 2

Features

News -

24 Innocent Until Proven Indigent by Randy W&on

27 Trial Evidence - Part 7 by F. R. 'BuckN Files

32 Joint Defense Agreemeqts - Part 2

4 CLE Schedule 1994 5 Criminal Trial Advocacy Institute 6 Ad - NLADA Program- Defending Death Penalty

Cases 7 Ahatomy of a DWI Trial 8 Advertisement - Professional Liability Insurance 9 Federal Motions Forms Diskettes for Sale

18 Life in the Balance VI 39 Publications

Contloulne Deborah A. GoUiieb, Chair Robert A. Price, N, CoChair

A r m ~ C u r i a ~ Jim La~hq, Chair David CuNlingham, CO-Chair Keith Hampton, Co-Chair

LeSslaUve David I. Botsford. Chair J. A. "Tony" Canales Jan Fox Michael Heiskell - Edward A. MsUett, Chair

NomlnaUhe Ron Goranson, Chair

$ybaet-aad Plaank E. G. 'GerW Morris, Chair Kent Schaffer, Co-Chair

Death Penally Carlton McLacly Robert A. Morrow, 111

m n - a a d Mloorltles MlchaeJ Heiskell, Chair

Bthlep - Richard Anderson, Chat1

lamers Asahtame Committee District 1: Jeff Blaekbum, Amarilio

Bill Wischkaemper, Lubbock District 2: J~seph Wb. Abraham. El Pasp

Jack K. .RusV WaU, Midland Dlstrict 3: Robert Hinton, DaUas;

Michael Heiskell, R. Worth District 4: F. R. %xk' Hes, Jr, q i e r .

District 5: Jack Zimmemann, Houston Mlke DeGeurin, Houston

Districf 7: Gerald H. Goldstein, District 8: BUI White. Austii

Randy T. Leavitt, Austin David Botsford, Austin

Membership Ronald 1. Goranson. Chair

Robert A. Jones, CoCha Alex Bunin, Co-Chair Knox Jones, CO-Chair Dalph Quijano, Co-Chaq

PuhJic lnfotmauon David R Bires, Chair

- .

V O I C E FOR THE DEFENSE

CONTINUING LEGAL EDUCATION Tentative Seminar Schedule

1994 TCDWCDLP

February 24-25,1994 TCDLA "Anatomy of a DWI Trial" Houston

February 26,1994 TCDWCDLP/TCDLEI/FRIENDS Board & Exe. Meeting (Omni Hotel, Houston)

March 13-18,1994 CDLP CTAI Huntsville

April 28-29, 1994 CDLP Skills Course Fort Worth (Worthington Hotel) (Federal Law Update)

May 1920,1994 CDLP Skills Course Beaumont

1 June 2-6,1994 TCDLA llRustyl' Duncan Advanced Criminal Law Short Course San Antonio

June 3,1994 TCDLA President's Party San Antonio

June 4,1994 TCDLA Annual Meeting San Antonio (The Plaza San Antonio Hotel)

July 14-15,1994 CDLP Skills Course Corpus Christi (Corpus Christi Marriott)

July 16,1994 TCDLA President Retreat Mustang Island

August 11-12,1996 CDLP Skills Course Amarillo

*SBOT Annual Convention: June 22-25,1994 SBOT Advanced Criminal Law Crse. July 25-28,1994 **NACDL Midwinter Meeting: February 16-20,1994

Austin Dallas Maui, Hawaii

JOURNAL OF THE TEXAS CRIMINAL DEPBNSB UWYERS ASSOCIATION

VOICEJOY thc I)efLme(iSSN 0564-2232) is published regularly by the Texas Criminal Defense lawyers Axsociation, 600 W. 13th, Austin, Texas 78701. (512) 478-2514. FAX No. (512) 469-9107. Annual subscription rate for members of the association is $100, which is included in dues.

Pleasesend all articles to Gary Udashen, 2515McKhney, Suite ISW, I. B. 21, DallasTexas 75201, (214) 651-1121. Please send all CO~UIIUSS to Mark Stevens, 310 S. St. Mary's, Tower Llfe Bldg., Ste. 1505, San Antonio, Texas 78205C210) 226-1433.

V O I C E F O R T H E D E F E N S E

Criminal Trial Advocacy Institute Texas Criminal Justice Center Sam Houston State University Huntsville, March 13-18, 1994

Purpose and Scope: The Criminal Trial Advocacy Course is an intensive fiveday progmm

designed to build your skills in thc art of trial advocacy. Participants in the sevcnteentl~annualcoursewillpractice, inamwtcaurtsetting, theskillssnd techniques required to render eNcctive assistance of counsel in each phase of the criminal trial. A distinguished faculty, sciected on the hasis of outstanding expertise and experience from among Texas' finest china1 defense trial lawyers will constntctiveiy criticize your performances of rrial exercises and suggest other teclmiques for successful advocacy.

Daily worksl~ops consisting of trial exercises wiil be based on casefae, complete with all rclevant lads, documents, and written materials. You wili receive t l ~ materials i ~ f o r e the coune to facilitate your advanced preparation. Studcnts divide into sections of ten grouped by level of experience. Each section 1s st;lffed by three faculty members. Each participant wiil act as the court*ppointed defense lawyer or prosecutor to present each aspect ofthe case to the faculty. Yoiurperfonnance is followed by a facukycritiquc. To enhance your self-awareness and self-reviry each performance wili be videotaped. The videotapes are for you to take home at the end of the week foryourt~seinconrinuedscM-improvement. Pacultyiecturesanddemonstra- tions will complement the workshop sessions during the week and will augment the pnct inl benefits and training yoiu receive as a participant.

Upon registration for the course, each participant will receive substantial course nmeirals to assist your preparations and performance.

Tilere is an urgent need for skilled trial lawyers. Court dockets and penal institutions are filled beyond capacity. lower middle class and pwrcilizens suffer mast froni the shortage of experienced advocates. More practical training need. to ease the transition from law student to kginning but competent lawyer. Cuthacksandci~angesinprogmn~sfortI~ep~blicdefeme will likely increase the burden especially for new lawyers, of providing efkcrive legal representation of indigent citizens. Ifthe adversary system ia to remain viable, every citizen, not just the amuent, must have equal access to skiiiedatlvocates. In itseiFom toenhance the contribc,tiunofthecrirninal defense bar to an even Inore effective rauirable. and efficientsd~~~inistcltion

engaged in public dcfense progmms and those appointed by courts to represent indigent citizens. Since its inception in 1973, the Criminal Defense L a w e n Pmiecr has been funded hv a arant administered bv the Criminal . - Justice Division of the Governor's office. The Project is sponsored by the Texas Criminal Defense L ? \ ~ e r s Association. Registration Information

This course is open to 60 lawyers who are selected by level of experience and on a first-comdfint-served basis. Applications must be rcccompanied by a $100 deposit and must be received by the Project office no later than Pebn~ary 1 1 , 1 9 4 Ifyouare unable tosubmit yourapplication bythat date, you must call our office at (512) 478-7994 to confirm regislrationavailability.

Level of intructiotl/Sue~stedPre~~uisites: n~ispmgram is designed for criminal defense lawyers of ail skill levels, including lawyers without trial experience. The participants wiil be gouped h1 sections by years ofpractice and number of jury trials. Uasic working knowledge of evidentiary and procedural rules, the Texas Penal Code and Code of Criminal Procedure is mandatory. YOU MUST COME PREl'ARED TO DEVOTE YOUR ENTIIm WEEK TO TIIIS PROGRAM

hICLE: This caune presents up to 35.25 hours of MCLE credit, which includes 1.0 hour credit for mandatory videotape viewing, and has been aPDroved by the hllNlMUM CONTINIIING LEGAI. EDUCATION DEPART- -. - ~ - - ~ ~ ~~~

MEW OF i.llE STATE RAN OF TD[As, 1.0 hours of LEGAL ETIII&/ I'ROFESSIONAI. KESPONSllll.llY requirement.

Hotel Accommodations: The course wiil be conducrcd at the Texas CriminalJustice Center at Sam Houston State University in Huntsville, Texas. ALL PhKTIUI'ANTS \WLL STAY INTHE UNIVEKSITYHOTELADJACENT'CO THE CENTER 'Ik Project staffwill secure your hotel reservations. HOTEL

ACCOMMODATIONS ARE INCLUDED IN YOUR TUITION. Tuirion: Tuition for this course is $425 for members of TCDLA and $450

for nohmelnbers payable lo the CNhllNAL DEFENSE LAWYERS PROJECC. The tuition covers the course, your hotel accommodations and your course materials (including a videotape). A $100 deposit must accompany all registmtionlorms. Yourregistrationn~~~t~ea~I~auroffiebyZDOp.m.Februar)l 1 1 If you are anplvine for a scholarshin. vou will be notified on Yebn~aluarv 25. I994 if vour mnlication has been accented. Upon your acceptance to the Course, the remainder ofthe tuition ($325/$350) is due and must lx in our office nolater than Alarch4,1994 in order to guarantee your enrollment for this program. DOOR IU3GISTRATIONS WILL NOT RE ACCFl'TZn . . - --. .

CanceilaliodRefund: Should you need to cancel your resewed slot, you must notify ouromce on or before hlarch4ti1. You keep all course materials, andwewill reh~nd ail mirionoverthe$100non-rehtndabledeposit. Theonly way you an recover the $100 deposit is if we secure a substitute who will pacticipare in yourplace. Scholarship recipients wiil receive the deposit back within two weeks after the program concludes.

Scholarshios: The Criminal Defense Lawyen Project is authorized by the terms of its grant to offer a limited number of scholarships (10) to those deserving lawyen who are recommended by a member of the Texas or federal judiciary. No attorney who is on federal, state, or other public payroll n~ayreceiveascholani~ip, except two scl~olarshi~s~nay beawarded toPublic Defenders who do not have access to other CLE funds. If you wish to apply, make a note on your regisrmtian form, and suhmit a letter of recornendation. If you are accepted as a schoiarship recipient, your $100 deposit will be renmed to you as s w n after acceptance as possible. Please note on your registration form whether yoiu desire consideration as a paying participant should yourappiintion for schoiarshlp be received afrer the slots have been fdled. Application and ierter muat bc submitted no later than Pebmarj 11.

Tentative Course Schedule (Subject to Change) - Sondav. hlarch 13. 1994 1:W-500 p.m. Registration 3:30~6:30 p.m. Orientation and Overview ofproblem (initial question and

answer period)

hlondav. March 14. 1994 Afon1ilg Smioll: Voir DirdOpening Siale~nem 9:W-10.00 a.m. Faculm l'lamine Mcetine . .~ ., - 830-945 a.m. Lectures: Law afVnirDire (1/2llr), EffectiveJurySeiection

Techniques (lh0 9:45~10:00 a.m. Refreahment Break 10:OO-10:30 a.m. Lecture: Opening Statements 1030-12:% p.m. Demonstration: Voir Dire and Openinz Statements 12:30-1:30 p k Lunch Afrernoon Sessimr: VoirDirr (colrli~trred) 1:W-2:45 0.m. WVorkshon: Voir Dire 245-3.6 p.m. ~ e f r e s l l n k t Break 500-5:30 p.m. Workshop: Voir Dire (continued)

Tuesdav. hlarch 15. 1994 Afoorning Serrion Direct/Crosr Exominfllion 8:30-915 am. Lecture: Preparing Your Wtness for Direct 9:15-10:15 a.m. Workshop: Direct Emmination 10:15-1050 a.m. Refreshment Break 10:30-1200 p.m. \Vorkshop: Diect Examination (continued) 12:M)-1:M p.m. Lunch Afrrcrnao,~ Session: DlrecVCm Elvnminnliotl (colllinee& 1:yJ-230 p.m. Demonstration: DirectfCross Examination of Defendant 2:302:45 p.m. Refreshment Break 2:45-5:30 p.m \Vorkshop: Cross Examination

- --- - -

V O I C E FOR T H E D E F E N S E

Wedo~ulav. March 16. 1994 Monziug S~ssiow DIrect/Cm ExmInotion (~onffn~ed2 8:30-10% a.m. VIdco Lecture; TIE Ten Commandmenre of Cross

Examination 10:00-10:15a.m. Refresl~ment Ikereak 10:15-12.a0 p.m. Workshop: QirecKrwsfl1e-Dlrcct 12:00-1:00 p.m. Lund~ A~ernom S&on: Di&ClWRe-UtrL?Cf (tomtinuec0 1:M)-150 p.m. New Faculty Planning Meeting I:%-Z:30 p.m. Demonstration: Competitive Cmss Examination 2s-265 p.m. Refreshen1 Break 2.45-500 p.m. \Vorkshop D i d C d R e - D i r e & 5 W 4 5 p.m. Lecture: The Court's Charge

h ~ o f f z i l l g ~ o n DirecIJCms%?&M~€?cf 8 30-10:M a.m. Workshop. IheE1/Cms/Re-Direct 10.9-10.45 a m IWreshment Break 10.45-12:O a.m. Workshop: DirecUCrossflle Di ic t 12-00-1:s p m. Lunch

Pridav. March 18.1994 Moming Secriov Jury A ~ u ~ n e n f 8.30-10 45 p m. Workstiop. Summation -Jury -meat 10.45-11.00 a m Refreshment Break 11:00-12:w p.m.Workshop (continued) 12.00-1:M) p.m. Lecture: Ethics in Criminal I aw

Coarse Registration Form Criminal Trial Advofacy Come

W ~ c h 13-18,1994 I'lease detach thls form and mail it along with your $100 d e p i t to the Criminal Defense Lawyers Propd A p p k a t i w must r a c h the Project office by February 11. Fyou ace unabk to submn your apphmrion by [hat dare, you must conl3rm registration availabililyby mntacting the staffat (512) 478- 7994 Please be sure ro cilcck the appropriate boxes on thc application. Scliolarship appliwion due Pchruary 11.

ORce Addcess crty/State/zt,, Phone Number Home Addresj c1ty/State/zip Number of yeam in uiminal law practice Numher of criminal jury trials Bar Card NO. DEnclosedismydepositofS100 Iunderstandthat, ifaccepted torheCouffie, the remaining tuition balance of %25/$350 is due on M a d l 4. P I amapplying for scholarship. Enclosed please find aletter of recommendation From a smte o r ferlerul pdge and a check in the amount of $100 If schol~rshrp i ~ a ~ ~ e p t e d , my $lM)deposit will l~le r e ~ r o e d within two weeks Deadline Pebniary 11. P If my q@z~Ilon far scholarship is not gmnted, please consider my application for admission as a fidl-paying participant. DIf my applrcation for scholarship is not grunted, I will be unable to attend and reouest that MU return mv demsit.

If so, what year. I am O, am not P, a mcmber of the Texas Crimind Defense lawyers Associnfioll. Present position. lGCURNT0: Criminal Defense hwyemProject, hWWesr IWlStreet,At~sfin, T w s 78701, (512) 478-7994.

The National Legal Aid 31 Defender Association presents:

LlFE IN THE BALANCE VI: Defending Death Penalty Cases

Mitigation Specialists Training

LEGAL March 10-13, 1994 AID & MFENMR

A ~ C N T ~ Radisson Hotel, Austin, TX

I625 KSTREET. N.W. Co-Sponsored by: EIGHTH FLOOR Texas Criminal Defense Lawyers Association

WASH. 0.C 2WC6 (2021 452-0620

Advance Registration

LlFE IN THE BALANCE VI (Mar. 11-13): NLADA or TCDLA members, $180 Nonmembers, $220

MITIGATION SPECIALISTS TRAINING (Mar. 10): NLADA or TCDLA members, $70

Nonmembers. $90 COMBINED (both proaramsl: NLADA or TGDLA members, $220

Non-members, $280 For information, contact: Bob Burke, NLADA, 1625 K St., NW, 8th Floor

Washington, DC 20006. Phone (202) 452-0620; Fax (202) 872-1 031.


ANATOMYOF A DWI TRIAL: The lntoxilyzer on Trial. A Seminar of Demonstrations -

A Defense Show and Tell Learning Experience February 24-25, 1994

Houston Tentative Schedule

Course Director: I. Garv Trlchter. Houston Asst. Course Directors: Bennie E. Rav, Austin: W. Trov McKinnev. Houston: Mike McCollum, Dallas

Thursday, Eebnlai-~24.1994: ~ r e s i d t n ~ ~ u d g c : J ~ ~ D G E BRENDA KENNEDY, Austin

Travis County Court a t Iaw 67 Registration \Velcome and Opening Remarks J. Gary Trichter, Houston C o ~ r s i Director Overview of D\Vl Law and Error I'teservation: \Vi~at's New and What's Not Judge Chades Baird, Austin Texas Court of Criminal Appeals Voir Dire of Actual Jury Panel (40) Judge Michael Peters. Iioustan Harris County Criminal Coun at L w 2 Svate by: Kim De la G a m , Houston Defense: John Ackerman, Hauston Rebecca Christy, Dallas Refreshment Break Defense Explains Their Strikes Jury is seated -Opening Statement Opening Statements State by: Kim De L? G a m , Houston Defense: Bennie E. Ray, Austin The Selected Jury is sequested for lunch and the remainder of panel will participate in a dialogue about their voir dire experience Lunch (on your own) I'rosecution's Case in Chief is Prcsenrcd Kim De la Gnm, Houston Cross-Examination of Arresting Officer Randy Taylor, Dallas Refreshment Break Closing Argument State: Kim De In G a m , Houston Defense: Rennie E. Ray, Austin Jury excused to deliberate and their discussions will be broadcast live to the seminar ~articinanrs. . , ~~

J u ~ y is returned and a dialogue initiated 5:15 p.m. Cash Bar Immediately for Seminar -------------------

H O n L RESERVATION CARD In order to secure your hotel reservation at reduced group rates, this

card, letter, or call identifying you with the TEXAS CRIMINAL DEFENSE LAWYERS ASSOClATlON must be received by the hotel on or before Wednesday, February 2,1994.

Olnni Houston Hotel 4 Riverway llooston, Texas 77056.1999 (713) 8718181 $98.00 single/double + taxes I will check in on and out on I am attending the ANATOMY OF A DWI TRIAL which is k i n g

conducted by the TEXAS UllMiNAL DEFENSE LA\VYERS ASSOCIATION.

Address City/State/Zip Credit Card and number for lATE AKWVAL GUARANTEE (after 6 p.m.) Card e Expires

Friday, February28,1994 Presiding Judge: JUDGE MICHAEL PETERS, Houston

HmIs Connty Criminal Court of Iaw bZ 8:20-8:30 a.m.

11:25-12 noon

opening Remarks J. Gary Trichter, Houston Demonakative Evidence W. Troy McKinney, Houston Sear New i'anel Voir Dire of Actual Jury Panel (40 people) Judge Michael Peters, Dallas State: Kim Dc la G a m , Houston Defense: Stuan Kinard, Austin Refreshment Break Opening Statement State: Kim De In G a m , Houston Defense: Stuart Kinard, Austin Beginning of Slate's case in chief direct- examination of intoltilyzer operator By state: Kim De La G a m , Houston Cross-Examination of Intorilyzer Operator Randy T Leavitt, Austin Lunch (on your own) Direct-Examination of Technical Supervisor Kim De In Garm, liouston Cross-Examination of Technical Supervisor Randy T. Leavitt, Houston Smte Rests Ilrfreslm~ent Break Direct-Examination of Defense Expert D r Ken Smith Randy T. Leavitr, Austin Closing Arguments Closing Arguments State: Kun De In G a m , Houston Defense: Stuart Kiard, Austin Closing Remarks and Seminar Closure

------------------- COURSE PIU!-REGISIRATION FORM ANATOMY OE ADWI TRVU; THE EVCOXLIYZER ON TRIAL Houston, Tcxas Febmarv 24-25. 1994 PRE-REGISII(An0N BENEPITS: Your registration must reach our

,ffice by Wednesday, February 16th in order to guarantee receipt of :Oune nlaterials at the seminar.

Be sure to include vour SZZVS250 reelstration fee. Name Address Ciry/Srate/Zip Code Telephone ( County Bar Card No. Current Occupation I am 0, am nor O a member of the Texas Criminal Defense Lzwycn

is~ociation. RBTURNTO: Texas Criminal Defense lawyers Association, 6LX \Vest

3th Street, Austin. Texas 78701, (512) 478-2514.

AT LONG

LAST . . . . . . . . . .

INSURANCE PROGRAM FOR ITS MEMBERS TCDLA ANNOUNCES A PROFESSIONAL LIABILITY

Through the joint efforts of TCDLA, TexMark, and National Casualty Insurance Company (Rated A+15 by A.M. Best), TCDLA Members have access to outstanding coverage at highly competitive rates.

Today you can obtain numerous quotes for professional liability insurance. Make sure one of these quotes is from your association sponsored program.

TCDLA has recognized fluctuating trends in this area and is working hard to stabilize premiums for many years to come.

Policy Highlights

Easy to read policy

Unlimited prior acts coverage available

Covers all legal and notary services

Up to $5,000 may be paid annually with no deductible for defense of disciplinary proceedings

Innocent insured protection

Duty to defend policy

Annual Aggregate Deductible

Insured's consent required to settle claims

30-day free "Extended Reporting Period" with options to 60 months

For information please reply to:

Insurance Agency, Znc. Martha Stebbins

14135 Midway Road Suite #300

Dallas, Texas 75244 (800)588-0013

F a : (214)386-8081

V O I C E FOR T H E DEFENSE

NOTICE

THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

ANNOUNCES

92 FEDERAL MOTIONS FORMS DISKETTES FOR SALE

$75.00 + tax TCDLA members $150.00 + tax NON-members of TCDLA

("These diskettes will be offered free to new members joining TCDLA)

Please mail your check to:

Texas Criminal Defense Lawyers Asssociation 600 West 13th Street Austin, Texas 78701

Name: -

Address:

City: State: Zip: -

I am I am not a member of the Texas Criminal Defense Lawyers Association.


fidentialityandbeingsubjecttoa $25,MX) fine by the IRS, or providing the information sought by the IRS and being subject to disciplinaty action by the State Bar. In Texas, confidential information tncludes both "privlleged information" and "unprivileged client inFor- mation." "Privileged information" re- fers to the infonnation of a client protected by the lawyer-client privilege of Rule 503 of theTexas Rules of Evidence or of Rule 503 of the Texas Rules of Crinlinal Evidence or by the principles of attorney-client privilege governed by Rule 501 $the Federal Rules ofEvidence for United States Courts and Magistrates. "Unprivileged client information" means all information relating to a client or furnished by the client, other than privileged Mornation, acquired by the lawyer during the course of or by reason O? the representation of the client. Rule 1.05, Texas Disciplinary Rules of Professional Condua. Generally, as a lawyer you cannot reveal confidential information of a client to anyone outside your firm or use such information to the client's disadvantage or to some third person's advantage without the

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: Daed. . - Bit%$ .., gra&@@ frgm. t f i ~ . :itniversity aeTbxas, Aqlbiwitha B A $0 ~ o ~ e r . ~ ~ & t ig Sf$. &?& .BM ,~gmduat&d from @he UniversityofTenas

se&d @ ,1971- .uq .is W$M ,~,. ,jWiined.~~iImladb~~IthtkeTefas ,Biiard. hifIII&a! q@Q,?Ut+gQ$i$@:&$s ~~e&.htrlkm~edsinceCei976. ~6 has '%ve~. ~. ... .,- . ..- . ,. , . . .-. *, . . .w%c&Ne:~n$Jt~al.$O$apRe~~ate .., . .~aai~e;brjoth:~tateand~ed&1&u~~ -..~ --lo H~Wkiri, . .~ ..,~ .TF& 'F h j j @$be 3

'~lc~iminel.~cti~mer~in Haust@n& $2 : , p a p s $ Mt. BFesiisis g y t - ~ ~ & @ ~ . t i t ;of She @erris .&uniy r D,&tl4e , ~WVeB ~A@XI$t@~,,Xnd. f@? ~ . Q Q a - ..Xi@? bf . B9a.d M e d @tali$ in :.Griinifi$f.m:w. He is+ @&&r of ae ::&&xas 1 .__. Board of legal Specializifion @rnmal law Advisoty CommisSidn. . & . ~~ ~.also~.Eel~ow.~ftheT~:~.,as Griminai~ .Defefisa ~aq.prs ygr;iti@~l.Znjt$&

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caure:a.nd other. State Bgr of rrefas~hE:prt,gimh% .Hehasalso h e m a . ~ ~ v @ ~ ~ ~ ~ d ~ p e ~ k ~ r ~ ~ T c D ~ , ~ ~ t P and University of Houston 6LE pm-

:gems; ' . Iie isiicense&by ihee~&. Supreme

CfXfft,' TWs ?@re%& W4 .tlf&FLftQ -~~EleventhGireuit.Gou~ts of~ppeai, :g.nd tXe sputher~and Wetern Dh[ifc[ Gourts afiheirniteQ:~tates.~

L

client's consent. The Form8300 makes the lawyer a witness against his own client.

This is the more difficult constitutional issue regarding the 6th Amend- mentof the U.S. Constitutionand Act. 1, Section 10 of the Texas State Constitu- tion, because the fact of a client's con- sultation with a lawyer becomes a factor to be used against him. The lawyer becomes tbe agent of the government which seeks to investigate the client's activities,

%se issues have been the subject of lengthy discussions between various bar associations and the Depattnlent of Justice. Until now the Depamnent of Justice has engaged in a circuit-by- circuit effort to establish the circumstances in which an attorney would be bound not to provide information on a Fonn 8300. Now, the unilateral IRS announcement creates a crisis. No bar association has ever had any success in reasoning with the IRS. We need your help regarding this current crisis. We respectfully request you to assist us in establishinga dialogue with the 1RS that will result in clear gnidelines regarding a lawyer's duty. Presently, we need help in cuttailing the IRS's unprec- :dented action until this matter can be resolved through due course of law.

Thank you for your attention. We %and ready to assist in any way we can In resolving this issue.

Respectfully David R. Bites President, TCDLA

January 24, 1994 'hil Gramm, Senator J.S. Senate Washington, D.C. 20510 ]ear Senator Gramm:

On behalf of the Hidalgo County Zriminal Defense Lawyers Association I xge you to sponsor and pass a bill, mending 26 U.S.C. Section 60501.

Under present law, attorneys are re- pired to file a Form 8300 with the .R.S., revealing the identiry of clients ,aying fees or disbursing through their Ctorueys sums of over $10,000.00 in ,ash. the American Bar Association has aised the following points of concern: 1. pthical Concerns: Attorneys who

mvide information required by Form 1300 may breach codes of professional anduct. Ce.g., Model rules of Profes-

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Discovery, Expert Witness Evidence and Rendering the

Effective ~ssistanc< of Counsel

This issue of Voice honors Mike McCollum, assistant course director for TCDLA's Anatomy of a DWI Trial seminar, andTCDLA member Robert E. Ardis of Sulphur Springs, counsel for John Harvey Miller and Debbie Tucker Loveless. I recently learned of the superb job doneby Ardisinvolunteering to represent Miller and Loveless, both of whomhad been convicted of murder and sentenced to life imprisonment. Thanks to his efforts, these two individuals were granted new trials.

I asked Mr. Ardis to summarize the case and that summary follows. I have also reprinted the relevant portions of the Application for Writ of Habeas Corpus, the Findings of Pact by the District Court and the Per Curiam Opinion of the Texas Caurt of Criminal Appeals.

These documents certainly under- score the inlpoaance ofmethodical and open-minded discovelyly the necwsity of searching for expert witness testimony, and the availability upon reqnest of county funds to pay experts. The cases also remind us of the importance of listening to our own dient's version of the facts.

The Mfller/loveless Case Sufnma~y--by Mr. Ardis:

On Januaty 4, 1989, at about 12:20 p.m., four year old Decedent was found scratched, cut, and h i d on the family's small mral farm three miles southeastofEmory, Rains County,Texas. John Miller, the child's common law stepfather, a certifed emergency medical technician in Kentuckp, gave first- aidwhile the motherwent for help. The child was able to talk although she suffered fron~ a large wound to the inside right thigh and hyperthermia. Mr.


Miller stated that the only explanation was the one that Decedent gave him. She said that "the dogs did it!'

The local emergency team arrived and began immediate help but called for the helicopter from Mother Frances HospitalinTyler, some femi les away. Decedentarcived inthe emergencymom at Mother Frances Hospital in Tyler at approximately 1:30 p.m. The emergency room records revealed that the staff was able to restore pulse, blood pressure, and temperature to a point where surgery was possible to replace about four inches of the femur artery in her right leg. Ho~ever , the trauma of the injuries and the surgery was too great. Decedent died at 8:45 p.m. on January 4, 1989.

The immediate reaction was that the little girl had been physically abused by someone and that the injuries zuem not caused by the dogs. An immediate focus m s on the parents.

On January 17, after returning to Rains County from the funeral in Ken- tucky, both parents were arrested, charged withmurder, and placed in jail on a $75,000 bond each. Neither were able to make bond before the trial was held in November of 1989 when they were convicted of murder on weak circumstantial evidence. They were sentenced to life in prison.

Originally, the parents hired an attorney in Dallas to represent both of them in the tfial but due to a shortfallin the fmancial;irrangements, the attorney secured NO other attorneys to take his plaee which was satisfacrory with the defendants.

Aftcrsuverd pretri;~l scttings andaftcr th<::cssis'Hnt clis'rict xttorncy pcrsu:~tletl

the Court of a possible conflict, an attorney was appointed for the mother, and the father continued to he repre- sented by the attorneys from Dallas.

After the trial, the Dallas attorneys' representation was concluded and the Court requested the appointed attorney for the mother to file appeals for both defendants. After several weeks, the attorney for appellant Debbie loveless requested that he be allowed to withdraw as the attorney for the appellant, John Miller and cited the possibility of a conflict between the two appellants.

At that time, the Court appointed me to fie the appeal for John Miller. Many weeks went by with severalrequestsfor extensions to Me the brief because of a shortage of the Statement of Facts. My brief, following the lead of the other appellate attorney, was insufficient to overturn the conviction of John Miller. Also, the conviction of Debbie Loveless was affirmed by thcl'cxarkann Court of Appeals and the I'Dl~filu~l in her lxhall' was denied

After the opinion of the Court of Appeals affirmed John Miller's conviction, my wife, Laura, and I made a trip to Huntsville to the Wynne Unit to tell rohn the bad news. This was our fist personal contact with John. We had a long discussion with John about the case, and he emphasized that he knew nothing that wu ld help solve the mystery except that Decedent had said that 'the dogs did it.H

AfterLauraand I reflectedon the John Miller conversation at the Wynne Unit, we decided m return for a second assessment of this man and his story.

At the conclusion of the second visit,


Laura and I decided to proceed, pro bono, with more investigation into the case. It was ourpromise to Johnthatwe would investigate "the dogs did it" theory.

Later, as "the dogs did it" possibility turned mto reality, John contacted Debbie and she =quested that I r e p resent both of them in our quest for a new trial.

To date, Laura and I have spent a few thousand dollars and a few thousand hours in the meticulous derailing of how the injuries happened, acquiring the many nationally and internationally respected forensic specialists to examine the evidence and to make sworn &davits concerning their expert opinions. They too are making their experienced and expert opinions available to JohnandDebbie without charge. Laura has been the posh to "keep the ball roiling" and has been a great legal assistant in this endeavor.

*.*** WRIT NUMBER 12,793A

EX PARD IN THE STH JUDICIAL DEBBIE TUCKER* DISITJCT COURT LOVELESS OF HOPKINS APPLICANT * COUNTY, 'IEXAS

TO THE HONORABLE JUDGE OF SAID COURT :

COMES NOW the Applicant, Debbie Tucker Loveless, and files this, her Application for Writ of Habeas Corpus, pursuant to Article 11.07 of the Texas Code of Criminal Procedure and in support of said application, shows the Court the following:

I. Applicant, Debbie Tucker loveless,

is currently coaned in the Mountain Vienrunit ofthelnstitutional Division of the Texas Department of Criminal Jus- tice, pursuanttoa judgment ofconviction in cause number 12,793, out of the Eighth JudicialDisVict Court of Hopkins County, Texas, for the offense of murder. Applicant received a sentence of life in prison in the Texas Depaltment of Criminal Tustice.

11. Applicant appealed said conviction

to the Court of Appeals for the Sixth Judicial District at Texarkma, Texas, which court affirmed the judgment of

conviction ina published opinion, dared and filed 00 December 4,1990.

Applicant fded her Petition for Dis- cretionary Reviewwith theTexas Court of Criminal Appeals on January 24, 1991, which Petition w a s refused on April 3, 1991.

nI. Applicant is illegally restrained of her

llbertyat the Mountainview Unit of the Texas Department of Criminal Justice by James Collins, Director of the Texas Department of Criminal Justice, Institu- tional Division by virtue of her afore- said conviction in this cause.

Applicant is entitled to habeas corpus relief because Applicant was denied the effective assistanceof counsel at trial, in violation of Article 1, Section 10 of the Texas Constitution and the Sixth and Fourteenth Amendments to the United Sates Constitution,which constitutional provisions absolutely require that every accused person has the right to the reasonably effective assistance of counsel. Strickland v. Washineton, 466 u,s. 668 104 S.ct. 2052,80 L.Ed.24 674 f1984); Hernandez %&&, 726 S.W.2d 53 (Tex.Crim.App. 1986); &?&%State, 816 S.W.2d 350 (Tex.Crim.App. 1991); Holland v, State 761 S.W.2d 307 (Tex.Crim.App. 1988)

* * * * * v.

Applicant respectfully submits that trialcounxl's pcrlorm;tncc in this case was deficient, in the following palticu- lass:

(Ij Trial counsel was ineffective because he failed to prepare for trial by (a1 not spending sufficient time consulting d 1 t h the Applicant and her defense witnesses and by (b) not investigating this case to a reasonable degree or adequacy. As a consequence, trial counsel failed to prepare, develop, and offer into evidence before the jury, facts critical to the defense in this case, includii but not limitedto the matters specified below:

(2) Trial counsel became an ineffective counsel, because the Court denied Applicant's Motion for Prior Approval of Expenses for an Expert Witness, namely, a forensic pathologist or medical examiner, to (a) examine the pictures of Decedent takenin the emergency room of Mother Frances Hospi- tal, (h) examine the pictures takenduring the autopsy by Dr. Gonzales, and (c) examine the medical recordsand reports of Dr. Duncan and Dr. Gonzales. Al-

though the Court had found the Appli- cant to be indigent and had appointed

ashertrialcounsel, thecourtrefused &&ey for trial counsel to hire an independent medical expert to examine the emergency room and autopsy pictures, to confum or deny the child abuse and dog attack theories and to help him prepare adequately for trial. The Court of Criminal Appeals in ~ c B r i d e v. State 838 SW 248 (7ex.Cr.App. 1992) held that "an indigent defendant has a right to an independent inspection of evidence indis- pensable to the State's case because that evidence is necessarily material to the defense of the accused." The court fnrther stated that "to meaningfully participate in the judicial process, an indigent defendant must have the same right to inspection as a non-indigent defendant. This conclusion issupported by Tex. Code Crim. Proc. Ann. art. 26.05(a) which provides that appointed counselshall bereinlbursedforexpenses incurred for purposes of investigation and expea testinlony." rn this matter, the State's case was

based on Drs. Duncan's and Gonzales' medical opinions that the child was injured and died as a result of child abuse and that the dogs did not injure the child.

THP.FATI.1 JftE OFAPPLICANTSTRIAL . . - - - -- - - - COUNSEL TO HAVE ACCESS TO AN EXPERT TO EXAMINE THE S A W S MEDICAL EVIDENCE DENIED THE APPLICANT DUE PROCESS OF LAW.

(3) Trial munsel was ineffective bti cause he failed to prepare for the cross examination of the state's medical wjt-

nesses by not filing in a timely manner a Motion for Depositions as mandated by Article 28.01, Section 2, of the Code of CriminalProcedure. That Motion was denied by the Coufi (SOF Pretrial Vol., Page 66, Line 12). Trial connsel had been informed by the state's attorney that he had arranged for interviews between the medical personnel and Applicant's trial counsel at Mother Frances Hospital in Tyler, Texas to be held on October 13, 1989 (SOF Pretrial vol., page 66, Line 4). When the interviews were canceled by - the Slate's attorney, the evening of the lzth, (SOF Pretrial Vol., Page 73, Line 10) because he said that all of the witnesses decided that they did not wish to ralk to the defense counsel (SOF Pretrial Page 82, Line 17), trial counsel found it impossible to file the Motion for Deposition

-- - - -- -

V O I C E F O R THE D E F E N S E

seven days (25.01 Sec. 2) prior to the pre-trial heat.ing set for October 18, 1989CSOFPretrialPage 36). Trial counsel did file the Motion for Deposition on the morning of the pre-trial, just pnor to the hearing @OF Pretrial Page 62, une 23). Because of the cancellation of the interviews with the critical witnesses in this case and the Coua's refusal to grant the Motion for Depositions, trial counsel was ineffective at trial.

(4) Trial counsel focused on the theory of the State's attorney, namely, murder by the codefendant,JohnHarvey Miller. The theory was that the fatal injuries began as a child abuse episode and that the codefendant methodically carved Decedent's body with a hunring knife and used push pins (like thumbtacks), so as to make the physical abuse look like scratches from a dog attack, as a covel-up for his vioIent beating of the little girl with a curling iron. JohnMiller, the codefendant, stated that Decedent said that the "dogs did it" after she nras found severely injuned, but instead of pursuing a defense based on his dient's information, tdal counsel actually opposed her in aligning himself with the attorney for the state.

(5) Trial counsel failed topresent into evidence and to the jury members the nature and descfiption of these dogs, namely, Ca) Lady, a six months old, black Labrador RetrieverDoberman cross, 40-45 pounds; (b) Wolf, a grey and black stock dog, older, with grey around the munle and a deformed paw, a hunter that killed snlall game, 18-20 inches at the shoulder and 35-40 pounds; and, (c) Buddy, askinny, skittish mutt with long and sharp canines and claws, 24-30 inches tall and 25-30 pounds. Notonlydid trial counselfail in submitting these pertinent Facts to the jury and to the Court, but even failed to class-examine a witness about the dogs, theirbreed, sizeand weights, andhiled, as well, to present witnesses concerning these facts. (6) Trial counsel w s also ineffective

during the trial by Failing topresent into evidence the facts that the three dogs that lived at the MiUer/Loveless home were not little four to five pound pup pies CSOF, Voi 11, Pg 368, Ln 9) but were in fact two adult male dogs and one six- month old female Labrador-Doberman cross, all of which were capable of vicious aggression; and had, in the presence of Sheriff Wilson, attacked Decedent's sisrer and the son of -'s

foster parents during the time of Ms. Loveless' and Mr. Miller's confinement in the Rains County Jail. TriaI cound also failed to present into evidence the dogs' attack on DHS-A, who, with her father, was feeding and taking care of the dogs during this same time period.

VI. Applicant respectfully submits that

trial counsel's deficient performance prejudiced Applicant's defense in that there is more than a reasonable probability that, but for trial counsel's errors, the results of the trialwould have been different

Trial counsel's deficient perfornlance prejudiced Applicant's defense because it deorived Aoolicant of imoortant and ma&al evid%etoshow&t~ecedent was a victim of a dog attack-not a victim of physical abuse. That evidence would have included but not limited to the following! (1) The dogs were not, as character-

ized by the State, small 4-5 pound puppies. @OF VoI 11, Page 368, line 91

(2) That they were two adult male dogs andone sixmonti~ old female dog.

(3) That each of the dogs probably weighed as much or mare than the 4 year old victim.

14) That on the day prior to the fatal attack on Decedent, "Lady," the six- monrh old Labrador/Doberman female, attacked Decedent after she had Fallen from a tree.

(5) That DHS-A, the child abuse investigator from the Texas Depaltment of Human Resources who investigated the case was personally attacked by one or more of the dogs on four different occasions; and, that - the older sister of the victim, and -, the son o f ' s foster parents. were also attacked at different times.

(6) That several of these attacks happened in the presence of law enforcement officials who testified at trial for the Stare but Were never adequately cross-examined about the attacks.

(71 That any of several expeit witnesses, nledical examinersfamiliarwith this type of dog attack (and the differ- entiation bemeen child abuse and dog attack) would have testified after an exammation of the 28 pictures made in theemergencyroom and the lopictures made at the autopsy, plus an examination of the medical records, that the child was attacked by dogs and the injuries were not the result of abuse.

Please note the attached affidavits

from the following: (a) Dr. Charles B. Odom, M.D. Medi-

cal Examiner, Institute of Forensic Sci- ences, County of Dallas, 5230 Medical Center Dr., Dallas, Texas 75235.

Ib) Dr. Charles Petty, M.D., (Retired Chief Medical Examiner, Institute of Forensic Sciences, County of Dallas), Director, Child Abuse Center, Dallas County, Spmgue Building, 3rd Floor, University of Texas Atedical Science Center, Dallas, Texas 75235.

(c) Dr. Tom Krause, D.D.S., Forensic Odontolonist, 2573. Street,PhilUpsbur%, Kansas 6%6l.

.

(d) Dr. Michael A. Clark, Ph.D, M.D., Associate Professor of Pathology, Indi- ana Universitv School of Medicine. In- dianapolis, lxkiana.

(el Robert B. Ardis, Attorney at Law, 468 Shannon, Sulphur Springs, Texas 75482

(0 DHS-A, Child Protective Service, TexasDeparttnent ofHumanResources, Enlory, Texas

VII. Applicant attaches tothis Application

the affidavits of the four nledical examiners listed above and one child specialistfrom theTexasDepartment of Human Resources in this cause. These affidavits, signed by the experts in variousfields related tothiscause, further demonstrate that trial counsel's performance was deficient and that this deficient performance seriously prejudiced Applicant's defense. These alfkhvits further demonstrate that there is a reasonable probability that, but for trial counsel's errors, the results of the trial would have been different.

VIII. Applicant hereby requests and prays

that this Courtgrant this ApplicationFor Writ Of Habeas Corpus; order Respon- dent to show cause why Applicant should not be set at liberty; afford Applicantaplenary hearingto inrroduce evidence in support of this Application; and folloning said hearing. that this Court immediately file findings of fact and conclusions of law finding that Applicant was denied the effective assistance of counsel and is entitled to be freed fmm further restraints upon her Liberty and for such other and further reliefto whichApplicantmaybe entitled. Furthemore, that upon final review and hearing by the Texas Court of Ciiminnl r\p&is, said Cunrt shall grant all relicf sought in the Application and r,rtlur tlic jutlgnlcnt of cunviciivn and


sentence be reversed and this cause remanded for a new trial.

Respectfully Submftted: Robert B. Ardis TBA 01297595 Attorney fur Applicant 458 Shannon Square, Suite 5 Sulphur Springs, Texas 75482 Phone: 903-885-971 1 Fax: 903-885-6315

VERIPICATION STATE OF TEXAS c o u m OF CORYELL j

BEFORE ME, the undersigned Notary Public, on this day personally appeared DebbieLoveless,applicantin theabove- entitled and numbered cause, andwho, being sworn on her oath, deposed and stated that she has read the above and foregoing APPLICAnON FOR \VRIT OF HABEAS CORPUS and that every statement contained therein is within her knowledge and tlue and correct.

DEBBIE LOVELESS

SUBSCRIBED AND SWORN TO BE- FORE ME On the 12th day of January 1993, to ceaify which witness my hand and offcial

Notary Public, State of Texas Printed Name: Robert B. Ardis My Commission Expires619-95

CERTIFICATE OF SEIIVICE The undersigned hereby certifies that

a tlue and correct copy of the foregoing Application for Writ of Habeas Corpus was saved, via hand delivery, to Frank Long, District Attorney, 8th Judicial District, on this 19th day of February, 1993.

Robea B. Ardis

CAUSE NO. 12,792-A THE STATE ' IN ' IXE DISTRICT OF TEXnS ' COURT,

a HOPKINS COUNTY, VS . TexAS JOHN HARVEY ' STHJUDICIAL MILLER DISTRICT

CAUSE NO. 12,793-A THE STATE * IN THE DISTRICT OF T g A S COURT,

* HOPKINSCOUNTY, VS . * TEXAS DEBBIE 'I7JCKER * 8TH JUDICIAL LOYELESS * DISTRICT

PINDINGS OF FACT

Let the Court state at the outset, so here isabsolutely no misinterpretation, that it is the Court's opinion, after conducting an extensive and exhaustive evidentiary hearing pursuant to the Applications for Writ of Habeas Corpus, that Applicants Debbie Loveless and John Harvey Miller should be granted a new trial.

The Court held an evidentiary hear- mg on March 31, 1993; April 19,1993; Apdl20, 1993 and May 5, 1333. The Cowt makes the following Findings of Fact:

I. The Court Ands the following testi-

mony to be true; 1. That Dr. Charles Odom, fonner

Chief MedicalExaminer for the City and County of Honoluiu, Hawaii, Associate Professor at the University of Hawaii Medical School in Pathology, and now an Assistant Medical Exantlner for the Dallas County Medical Examiner's Of- fice, testified, pro bono, to having personally conducted over three thousand autopsies in hi$ career, having personally been attacked by a dog, and having aIsoassistedin conducting three or four autopsies on animal attack victims as well as havingseen six to ten presented at national seminars, testified jn his opinion that this was an animal attack fatality, more specifically canine attack, and not child abuse. He also testified that dog bite attack w s the "only reasonable interpretation" ofthe evidence. CWRIT PAGE 55, LINE 2)

2. That Dr. ThmasKrauss, aforensic dentist and forensic odontologist from Phillipsburg, Kansas, a Fellow of the American Academy of Forensic Sci- ence, Odontology Section, amember of the American Society of Forensic Odontology, a Board Certified Diplo- mate and former President of the American Board of Forensic Odontology, and member of the Edito- rial Board of American Journal of Fo- rensic Medidne, having previously as- sisted the United States military in the identiFication of victims through odontology, as well as having made a sub-specialty of animal attack forensic odontology, testified, pro bono, that this was a "frenzied dog attack" fatality. HIS testimony with regard to the puncture wounds being solely animal induced was that is was "inconceivable that these could be simulated or repro- duced in a simulated manner." (WRIT PAGE 107, LlNE 93.)

3. That Dr. Robert Stein, former Chief Medical Examiner for Chicago and Cook County, IUinois, after review& the emergency room and autopsy photographs, stated in a letter to Dr. Krauss, read into the record unobjected during Dr. Kmuss' testimony, that this was a "pit bull dog attack" and not child abuse. WRIT PAGE 111, LINE 16)

4. That Dr. Charles Petty, forn~er Chief Medical Examiner for the Dallas County Medical Examiner's Office and Chairman of the Dallas County Rape Crisis and Child Abuse Center, testified, pro bono, that sin= 1980 he had been present when two autopsies were un- dertaken as a result of dog attack fatalities at the Dallas County Medical Examiner's Offlce, as well as cases presented at annual AmericanAcademy of Forensic Science and the National Association of Medical Examiners seminars. He testified: That he had personally conducted over two hundred child abuse autopsies and super- vised several hundred more; that dog attack fatalities are extremely rare, and for most pathologists an animal attack fatality autopsywas a once in a career occurrence; that he had seen sirnilax injury pattermon autopsy of dog attack victims,

That his medical opinion was: This pattern injury I see on the child the subject of this panicular legal procedure actually, more or less, announces to the knowledgeable person that this, in fact, is an animal attack." (WRIT PAGE 162. LINE 9)

That he also testified: "This is not a case of child abuse unless you want to call it a case of animal abuse of a child." OWrRIT PAGE 132, LINE 11)

That he further testified: "This does not fit in any way with a child abuse situation in my opinion." WRIT PAGE 132' LlNE 20)

The Court finds thatDr. Petty's expertise in forensic pathology was stipu- lated to by the Assistant District Attor- ney, Mr. Alwin A. Smith, a follws:

MR. SMITH: "Your Honor, Dr. Petty is w l l - h o r n to the District Attorney's Offlce and I believe to this Court. educational background and credentials to testify as an expert in the area of a pathologist I think is beyond re- proach. We would stipulate that he is fully competent and able to testify asan expert." (WRIT PAGE 1271

ThatDr.Petty's biographical informa- tiQn is as f o l l o ~ ~


Haward Medical School; Coroner': Pathologist, New Orleans; Faculty- LSU School of Medicine; Asst. Medica Exanliner, State of Maryland; Faculty- University of Maryland; Faculty-Johr Hopkins University; Professor of Foren- sic Pathology, Indiana Univ. Medical Center; Chief Medical Examiner, Dallar County, '69-'91; Director--Crime In- vestigation Laboratory of Dallas; Di- rector-Rape Crisis anti Child Abuse Center of Dallas; Certified by American Board of Pathology in Pathologic Anatomy, Clinical Pathology and Fo- rensic Pathology; currently Professor of Forensic Science and Pathology, Uni- versity of Texas Medical Center, Dallas, Texas.

5. That a Dr. Clark, Michael A. Clark, Ph.D., M.D. in a sworn affidavit to the Court, attached and included in the Application for Writ of Habeas Corpus, judicially noted by the Court without objection, referred to in the xnit o n page 652, line 10, affirmed that he was a n Associate Professor of Pathology at the Indiana University School of Medi- cine in Indianapolis, Indiana, a Diplo- mate of The American Board of Pa- thology in Anatomic, Clinical and Fo- rensic Pathology, and former Chief of The Division of Forensic Pathology at the Armed Forces Institute of Pathology in \Vashington, D.C. That having re- viewed the photographs and medical records of Decedent, stated in the affidavit that "her injuries were the result of dog bites coupled with abrasions resulting fromentrapment inbarbedwire. The wound in the right upper thigh is a typical avulsed dog bite inju ry... ."

(WEBSTER'S 3RD INTERNATIONAL DICTIONARY-"Avulse: To pull off or tear away; to separate by avulsion."

(DORLAND'S MEDICAL DICTIO- NARY--"Avulsion: The tearing away of a part of structure."

6. That Bonnie Beaver, DVM, is a Professor at Texas A & M University specializing in animal behavior, a member of the An~erican Society For Veterinary Animal Behavior, a member of thehima1 Behavior Society, and the currentPresident and Charter Diplomate of the American College of Veterinary Behaviorists.

That Dr. Beaver in January of 1989, shortly after the incident, first advised DHS and State officials via a telephonic diagnosis as to it being a dog attack, without the benefit of emergency room o r autopsy photographs, that "theoreti-

cally it could happen but it's not probable."

That at the writ hearing of 5-5-93 Dr. Beaver, after reviewing the writ hearing photographic evidence and certain evidence on the autopsy and emergency room photographs conceded "thatsome of the wounds could be consistent with" canine involvement in the physical abuse of the child. ( \WT PAGE 656, LlNE 6)

That she also testified: "I do not believe that all of it is related to a dog." (WRIT PAGE 642, LlNE 6)

11. 1. And the Court further finds the

following: That -, Court-appointed counsel at trial for Applicant Loveless, first became involved in the case on 8- 11-89, seven months after the offense, due mainly to problems arising from the joint representation of Applicants Loveless and Miller by original hired counsel, -.

That Assistant District Attorney - "reneged on his agreement to provide pretrial access to Department of Human Services employee, DHS-A, as well as certain other emergency and hospital personnel.

That Defense Counsel further was denied access to DHS-A's report con- raining informationaboutthedog attacks as contained in DHS-A's affidavit attached to the writ. That had he been aware of same he would have consid- ?red said infornlation exculpatory and nlitigatingand would have complained. :WRIT PAGE 339, LINE 9)

That Defense Counsel was not fur- iishetl a copy of the emergency room mdautopsy photographs as ordered by hecourt, but made no complaint to the Jourt.

That had Defense Counsel been fur- lished investigatory funds he would lave sought the independent advise of 1 medical expert. However, he accepted he secondhand opinionof -as to his loctors' assessment of the evidence.

That Defense Counsel also felt the 7ourt conunitted reversible error in not granting a Motion to Sever, which fac- oredinto llis trial strategy of not calling iubpoenaed witness DHS-A. That the :ourt of Appeals ruled otherwise.

2. That the attorneys for Mr. Miller mnd Defense Counsel shared nlutuaily )eneficial informationregardingthecase mnd the Court further finds the followng, to wit: That -,trial co-counsel for Lpplicant Miller, was hired to assist at

trial only. That he was not provided emergency room or autopsy photographs. That he did not pursue the dog defense theory because the State's attorney told him the dogs were only "puppies".

It is also the finding of the Court that Defense Counsel was in poor physical health at the time of the writ hearing due to recent opetl-heartsurgery, which condition may have affected his testimony.

3. The Court finds that DHS-A, Child Protective Services Specialist for the Department of Human Resources, had been personally involved in the case, even to the point of feeding the three canines after the incarceration of the applicants. That she had previous experience in the investigation of a child fatalityas the resultof a dogattack. That she had beenattacked by the canines in questionand reported this to the Sheriffs Department. That she also observed one of the canines "grab" the arm of the oldersister of thevictimat a subsequent time in the presence of Sheriff Richard Wilson. That it had also been reported to her that another child, -, a relative, had been engaged by the dogs.

That she asked the Sheriff on 1-19-93 to make impressions of the dogs paws and claws. That to her knowledge no impressions were made.

That DHS-Awas instmctednot to talk :o defense counsel.

That DHS-A was not called as a wit- less by either side at trial.

4. That Assistant District Attorney- ~fter trialfdeda complaintwith the State Bar of Texas because Defense Counsel xas attempting to talk to DHS-A. The :omplaint was later found to bewithout nerit.

5. That AssistantDistrictAttorney- estified he did provide Defense Counsel I contact sheet of some six to eight nedical photographs and tried unsuc- :essfully to arrange a meeting of hospi- a1 personnel with defense counsel. That he also testified that DHS-A

'never told me she had been attacked )y the dogs." The Court makes no inding as to whether she didor she did lot. (WRIT PAGE 437, LINE 21)

That prosecutor testified he made all )f the physical evidence available to iefense counsel, although he did not )rovide copies of photographs to de- ense counsel inasmuch as Defense :ounsel was retained and another De- ense Counsel made no request for

17


same. That prosecutor testified thnough the

investigation of the Sl~eriFs Office and themedical reports of Dr. Gonzalesand Dr. Duncan itwas liisfumbdiefrhat the "puppies" were not responsible in any way for rhe attack on Decedent.

6. n a t notrvithstandiw Assistant District Attorney's -testimony to the contrary, prosecutor did not provide Defense Attomey - with copies of etllergehcy room o?' autopsy photographs as ordered by the Court and therefore he, Defense Counsel, only pfesentedwrittenrepoas to his personal physician, Dr. &chard Tindall, a neu- rologist, and to another physician ac- quaintance, Dr. Javad Fiuzat, a cardiovascular surgeon, f a their opinions as to the cause of death.

That the presentation of the wrjmn repom only wsnotmfficfent evidence fmm which an expert could give a knowledgeable opinion.

7. Texas Department of Human Re- sources supervisor, - testified that "bottom line" the District Attorney's Office controlled communications with defense attorneys in criminal cases.

AND THE COURT FURTHER PINDS THE FOLLOWING, TO-VIT:

1. That the State, specifically Assis- tant Distrfct Attorney, did not provide copies of all the emergency room and autopsy photographs to defense counsel, as requested and agreed to by the State, and ordered by the Court prior to the August >8, 1989 pretrial, That this set in motion a chain of events which resulted in the ineffective assistance of counsel for AppIicants John Harvey Miller and Debbie Tucker Loveless.

2 That pathologists Dr. Charles Petty and Dr. Charles Odom of the Dabs County Medical Examiner's Office, and Dr. Thomas Krauss, a forensic odontologist from Phillipsburg, Kansas, testifled, pro bano, at the writ hearing held March 31, 1991. That pathologists Petty and Odom would have made no charge for reviewing the evidence, including any emergency room and autopsy photogmhs, and routinely do so.

3. That the defense attorneys made no attempt to contact a forensic pathologist for an independent evaluation of the emergency room and autopsy photographs; i.e. retained counsel for Applicant Miller, , sought only the opinion of his personal physician, Dr.

Javad Fiuzat, a cardiovascular surgeon hl(;arland, andaneurologist, Dr. Richard Tindall,~ to thewrittenmedical~porrs. Appointed counsel for Applicant Love- less, - relied on Defense Counsel's communication that his I Y s doctors would not testify contrary.to Dr. V. V. Gonzales' autopsyreport of child abnse. Both counsel were thereby ineffective in not seeking an independent examination of the enlergeney room and autopsy photographs by a forensic pathologist on behalf of their respective clients.

4. The Court finds that attorney - has practiced before thisCourt formany years. Thatduring that timeithas been this Court's observation that he has always been well prepared, competent and very effeaive in the representation of his clients. That in this case he did not pursue the dog attack theory by securing a copy of the photographs from the District Attorney's Office as ordered by the Court. That together with the Assistant District Attorney's lack of cooperation with a Court-appointed counsel for an indigent defendant; i.e. not providing a copy of the emergency room and autopsy photographs as requested by Defense Coun- sel and ordered by the Court, not providing access to or written repons of a State employee, DHS-A, as well as certain other medical personnel; and De- fense Counsel's perwived necessity to rely upon the opinion of co-counsel's medical "expert," verbally communi- cated, that contributed to Defense Counsel's ineffectiveness, It was the totalityof the circumstances, as opposed to any spec& overt act, that denied Applicant Loveless effective assistance of counsel.

That had the Court been presented with a motion by Defense Counsel stating that he had submitted the emergency room and autopsy photographs to Dr. Petty, Dr. Odom or some expert and that that expert would provide testimony for the defendant that the child was killed by animal attack, the Court would have granted that motion for funds to secure that testimony.

That even though Defense Counsel did not set out facts in his motion for funds, and viewing this case with the benefit of knowing what the Court now knongi.e. that thm-ivasverypersuas~e testimony from qualified experts that should have been available to the de-

fendants, the Gourt now finds that the Court should have provided funds to the defendant Loveless for an expert who might have provided the same or similar testimony as that heard by the Court in the Writ Hearing.

That had the defendants had this testimony that the Court finds robe true in these findings, the outcome of the taal very likely would have been "Not Guilty!'

That the attorneys for Mr. Miller did not make the effort necessary to be dective becausetheydid not adequately seek expert opinion by sub

mi

tting the emergency and autopsy photographs to a qualified expert, whlch *ht have led to testimony thatwould have, in the opinion of the Court, atkdted the outcome of the trial.

111. The District Courtre~pectfully recom-

mends that relief be granted. Sincerely, Lanny Ramsay, Judge 8th Tudicial District Court "

OPINION This is a post-conviction application

forawrit of habeas corpus filed pursuant to Article 11.07, V,A.C.C.P.

Applicant was convicted of murder and her punishment was assessed at confinement for life. This conviction nras affirmed. Loveless v. State, SO0 S.W.Zd940CTex.App.-Tararkana 1990, pet. refd). Applicant contends she receivedineffectiveassistance of counsel at trial in that her attorney failed to adequately investigate the facts and pursue an available defense.

The trial court conducted a heahg and entered findings of fact and conclusions of law. The trial court finds that Applicant received indective assistance of counsel and recommends that she be granted a new trial. The triaL court's factual fmdings are supported by the record

On this basis, relief is granted. Applicant's conviction in Cause No. 1279i)-A in the 8th District Court of Hopkins County is vacated, and Appli- cant is ordered remanded to the custody of the Sheriff of that County to answer the indicment in that cause. Copies of this opinion shall be sent to the Texas Department of Criminal Justice, Insti- tutional Division.

PER CURlkM DELIVERED: December 15,1993 E BANC DO NOT PUBLISH W


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19


THE BATSON BEAT

The Equal Protection Clause has long prohibited the state from purposefully excluding jurors based solely on their race.' Until recently, though, to establish an equal protection violation, a defendant had to prove purposeful racial discrimination over a long period of time. As a practical matter, this requirement of proof over a long period of time served as a formidable barrier. In fact, it was virtually impossible for the defense to p re~a i l .~

Batso?zv. Kevtucky, 476 US. 79 (1980, changed this. Balson is significant - indeed revolutionary - because it re- laxes the defendant's burden of proof. Now, to make out an equal protection claim, the defendant need not shoulder the "crippling burden" of proving a puttern of discrimination in the past. Instead, the defendant may prove "purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case."3 The effect of this change is that, for the first time, it is now actually possible to prove that the state has unconstitutionally used its peremptory challenges. p

In Batso%, the challengewas made by a Black defendant who complained under the federal Equal Protection Clause that the state had used its pe- renlptory challenges in a racially discriminatory way to strike all four Black persons on the venire, Initially, many lower courts interpreted Batson as narrowly as possible. That is, Batson relief was limited to Black defendants in criminal cases who were complaining that the state had illegally stricken Black venirepersons based on their race.

Predictably, lawyers have not been content with Batsorz at its narrowest, but instead have sought to broaden its holding whenever possible. Very recently, our court of criminal appeals has addressed "the evolving interpretations

Expanding Batson

)f Bat~on."~ This article wiU discuss tl :volution that Batsorr has thusfar ui lergone, and will offer suggestions 1

hose whowould expand it even furtht Batson Aoolies in Civil Proceeding Imaginative lawyers in Ed~tonsorz ~~uilleCo~~creteCo..J,zc., 111 S.Ct. 20; 19911, sought to extend Batson to cix :ases involving private litigants. TI ;upreme Court agreed. "Recognizir he impropriety of racial bias in tt :ourtroom, we hold the race-bast :xclusion violates the equal protectic ights of the challenged jurors." Id. . :080. Edmonson also has implicatior or criminal lawyers. .Juvenile Cases In a case of first impression, tl;

)aUas Court of Appeals held thatBatsc pplies in a delinquency proceedin nvolvingaBlackjuvenile. C.EJ v.Stal '88 S.\V. 2d 849,852 Tex. App.-Dak 990, writ rePd). This seems undeniabl fter Edir~ot~soiz. :. Conmetencv Headnm

"[A1 Balsoiz claim appears to be coj lizableunderany settingwherein ajui 1 being selected, including a compc mcy hearing." Satter~uhite u. State, 85 .\V 2d 412, 423 n.7 (Tex. Crim. Apl 9931 Again, after Edinor~so~z, theel ~ouldseem to beno reasonwhy Batso ~ou ld not apply in a conlpetenc eating.

Mark Stevens has had his own law office in San Antonio since 1984 and is board certified in criminal law. He received his Law degcee from St. Mary's University in 1979. He is a member of the National Association of Criminal Defense Lawyers, the San Antonio Criminal Defense Lawyers Association and theTemsCriminalDefense lawyers

served as course director for the 19th Annual Advanced Criminal Law Course in 1993.

Batson Also Restricts The Defense State versus Defense --- Georgia v. McColltmz, 112 S.Ct. 2348 9921, surprised some observers who [ought that Batsotz only limited the -osecution. There, the Supren~e Court sld that "the Constitution prohibits a iminal defendant from engaging in .~rposeful discrimination on the gl-ound 'race in the exercise of peremptory lallenges. Accordingly, if the State 9monstrates a prima facie case OF cia1 discrinlinatibn by the defendants, e defendantsn~ustarticulate a racially :utral explanation for peremptory lallenges." Id at 2359. Defense versus Defense In a multi-defendant case, one co- :fendant's racially discrinlinatoly use ' peren~ptory challenges might violate lother codefendant's right to equal utection. SeeStatev.Anyn, 825 P. 2d il, 966 (Ariz. Ct App. 1991).

The Fourteenth Amendment As noted, the defendant in Batson as Black, and he complained that the ate's challenge against Black mirepersons violated the Equal Pro- ction Clause of the Fourteenth nendnlent. Some coults initially read morz literally to hold that the defen- mt could not complain unless the

I V O I C E FOR T H E DEFENSE I

exclusionof Hispanics. Mmubrayv. Statee 788 S.W. 2d 658, 670 (Tex. App. - Corpus Christi 1990, pet. refd), cert. dented, 111 S.Ct. 999 (1991).

Gender-Based Discrimination 1. Federal Constitution

Courts in several jurisdictions have held that gender-based discrimination isprohibitedunder theEqualPfotection Clause of the Federal Constitution. See United States u. Omoruyi, 7 7. 3d 880, 881 (9th Cir. 1993): Unitedstates v . De Cross, 960 7.2d 1433 (9th Cir. 1992)(en hanc); People v. Irizarry, 560 NNN. Zd 279,280 (N. Y. App. Div. 1990); City of Manddn u. Fern, 501 N.W. 2d 739,743- 44 (N.D. 1993); Siatev. Buvch, 830 P. 2d 357,362 Wash. Ct. App. 1992); contra United States u. Bmsmard, 987 F. 2d 215, 217 (5th Cir. 1993).

The justification forextending Batson protection to gender-based discrimination was well stated in Fern:

Gender discrimination, like racial discrimination, stimulates community prejudice which impedes equal justice formenandwomen. Peremptorystrikes based on gender, like those based on race, harm excluded jurors because discriminatory shikes bear no relation- ship to an individual's qualifications or ability to pelform or contribute to society. Full community patticipationin the administration of the criminal justice system, whether measured by race or gender, is critical to public confidence in the system's fairness. city ofMandm u. Fern, 501 N.W. 2d at 744.

The United States Supreme Court has recently agreed to decide whether a male defendant inapaternity action has the right to raise a federal equal protection complaint about the state's use of its peremptory challenges to exclude males from his jury. J.E.B. u. EB., 606 So.2d 156 (Ala. Civ. App. 1992)' cert, granted, 113 S. Ct. 2330 (1993). 2. Texas Cases

In Mowbray v. Stne, 788 S.W. 2d 658 (Tex. App -Corpus Clxisti 1990, pet. refd), cen. derded, 111 S.Ct. 999(1991), the appellant complained that trial counsel was inefFective for not object- ing to the state peremptorily striking five Caucasian women. The court re- jected this contention, noting: "Even if gender were included in Batson, appellant canhardly complainwhen eight ofthe twelveactual jurorswerewomen." Id. at 670.

In A d a m u. Statee 862 S.W. 2d 139

(Tex. App. - San Antonio 19931, appellant complained, for the first time on appeal, that the state discriminated on the basis of gender. The court held that he waivedenor by not objectingon this basis at trial. Id. at 146.

Very recently, the court of criminal appeals has strongly hinted that gender discrimination might violate equal protection. Precisely speaking, Cury v. B m v m u n , S.W. 2 d No. 71,606 (Tex. Grim. App. December 8, 1%3), was concerned with race, not gender discrimination. Commenting on the evolution of Batson, though, the court stated broadly that "group bias" is un- constitutional. The court went on to note: 'The group bias may stem from gender, religion, ethnic or any other cognizable group." Id. at slip op. 4. 3. Texas Equal Riehts Amendment

Our state constitutionspecifically forbids discrimination based, not only on race, but also on "sex. . . color, creed, or national origin." Tex. Const. Art. I, g 3a.

The Texas Supreme Court has recognized that the Texas Equal Rights Amendment provides more protection than does federal equal protection. Specifically, in In Interest Of McLean, 725 S.W. 2d 696, 697-98 (Tex. 19871, that Court constitutionally invalidated a provision of the Texas Family Code because it treated a male parent differ- ently than a female parent. The Court ruled that the Texas Equal Rlghts Amendment is more extensive and provides more specific protection than federal equal protection. Accord, Wif- Iiam v. City of Fort Wo~tb, 7782 S.W. 26 290,296 CTex. App. -Fort Wotth 1989, writ denied).

Several other state courts have held that B&otz-type reasoning prevents gender-haseddiscriminationundertheir respective state constitutions. SeeSbafe u. Leuinson, 795 P.2d 845,849-50 (Ha. 1990)fgender based discrimination barred~mderHawaiiconstitution> T@?r u. State, 623 A. 2d 648, 653 (Md. 1%3)(Maryland Equal Rights Amend- ment); State v. GonzaZe$, 8808 P. 2d 40, 49 (N.M. App. 1991)(New Mexico constitution); People v. BBltcnt, 561 N.Y.S. 2d 90,92 (N.Y. App. Div. 1990)CNew Yo& constitutioa; State v. Bz~rcb, 830 P. 2d 357, 362-63 (Wash. Ct. App. 1%2)(Washingtonconstitution). Seeafso Peope u. Monfiel, 855 P. 2d 1277, 1292 (Gal. 1993l(California Constitution forbids discrimination against cognizable

racial, religious, ethnic or other identi- fiable groups).

Relieious Discrimination 1. Federal Constitution

The United States Supreme Court has not yet determined whether the Equal Protection Clause prevents a litigant from exercising peremptory challenges based on religion.

C u q ~ suggests that the court of criminal appeals might extend Batson to claims ofreligiousdiscrimination. See Curry u. Botvmsm,-S.W. 2d-, - No. 71,606 (Tex. Crim. App. December 8, 1993)C'group bias may stem from gender, religion, ethnic or any other cognizable group'3(emphasissupplied), slip op. 4

In Casarezv. State, 857 S.W. 2d 779, 783 (Tex. App. - Fortworth 1993, pet. granted), the court held that federal equal protection does not prevent the state from challenging venirepersons because theyarePentecostals. "Because we donotfind any authority supporting the extension of the Bamn holding beyond the boundaries of racial discrimination, and because the United States Supreme Court has repeatedly and consistently limited the holding of Batson and its progeny to race, we decline to apply an expanded version of Batson to peremptory challenges made on the basis of a venireperson's religious affiliation." Id. at 784. Chief Justice I-EIII dissented, arguing that the principles of Batson should also apply to strikes based uponreligion. Id. at 789. The courtof criminalappeals hasgranted a petition of discretionary review in this case. 2. Texas Equal Riehts Amendment

As noted in the previous section, our state constitution speciftcauy forbids discrimination based, not only on race, but also on "sex . . . color, creed, or national origin." Tex. Const. Art. I, 5 3aCemphasis supplied).

Presently, there are no Texas cases which consider whether the state constitution bars a litigant from striking venirepersons for religious reasons. The majority opinion in Casurezis based on the federal constitution, and does not mention Article I, $ 3a, of the Texas Constitution.

In a case predating Bafson, a New York court held that the New York Constitution prevents the state from using its peremptories to discriminate based on religion. Peope u. Kagan, 420 N.Y.S. 2d987,989 (N.Y. Sup. Ct. 1979).


The Minnesota Supreme Court has held that neither the federal nor the Minnesota constitutions prohibit chal- lengingvenirepersons because they are Jehovah's Witnesses, since "religious bigotry in the use of the peremptory challenge is not as prevaIent, or flagrant, or l~istorically ingrained in the iury selection process as is race . . . ." Slate u. D a a 504 N.W. 2d 767, 771 (Minn. 1993).

Other Possible Applications Of Batson

National Origin Because Atticle I, § 3a expressly for-

bids discrimination based national origin, parties should lnclude this objection where appropriate.

DisabiliQ One New York court has concluded

that "Butsodike nrotection should he afforded to a heaiing impaired would- be juror and therefore disallows a proposed peremptory challenge by a prosecutor intended to eliminate a juror solely because she cannot hear." People u. Cree& 561 N.Y.S. 2d 130,131 (N.Y. Co.Ct. 1990). In support, the court cited both the NewYork Constitution and the Americans WithDisabilities Act of 1990. Id. at 132-33.

Prosecutors frequently rely on age as a race-neutral reason 6 r eiercis&g a peremptory challenge?&fight this race- neutral reason constitute an equal protection violation of its own?

Most courts hold that young people do not canstitute a cognizable group for Batson purposes. E.g, United States u. Pichay, 986 986. 2d 1259, 1260 (9th Cir. 1993); United Stam u. Jackson, 983 F. 26757,762 (7th Cir. 1993); Unitedstates u. Cmta, 825 F. 2d 538, 545 (1st Cir. 19871, cert. d m d 486U.S. 1042 (1988).

One court, at least, disagrees. In State u.Zaualu, 6 1 1 ~ . 2d 1169(N.J. Super. Ct. Law Div. 19921, the state admitted a group bias against young persons. "Al- though young persons do not constttute a cognizable group, the prosecution's admittedexclusionof all young persons from the jury constitutes an exclusion- ary tactic based on group bias." This conduct, when coupledwith racebased challenges, required a mistrial. Id at 1173.

Death Penaltv Onnonents In Roma?ao u. State, 847 P. 2d 368

(Okla. Crim. App. 19931, the defendant argued that the prosecutor's use of peremptory strikes against venirepersons with reservations about the death penalty violated Batson. The Oklahoma Court of Criminal Appeals disagreed, holding that "[nlo authority supports the proposition that equivocal jurors create a suspect class wbich ln- vokes the stringent requirements of the Equal Protection Clause, and which would permit extension of the limited Batson mle." Id. at 377. The Ohio Su- preme Court agrees. Stale u. Euaw; 586 N.E. 2d 1042, 1057 COhio 1992).

Marital Status Or Sexual Preference Peremptory challenges against

venirepersons based on their marital status do not violate the Equal Prgtec- tion Clause. i3zitedStamv. Owtoruyi, 7 F. 3d880,881(9th Cir. 1993); Wbitehead u. Stnte, 608 So. 2d 423,428 (Ala. Crim. App. 19921.

Gay persons do not comprise a cognizable group for equal protection Durposes. State u. Spltler, 599 N.E. 2d 108,414 (Ohio Ct. App. 1991).

Conclusion Thosewho favor expanding the reach

>f Batson owe some gratitude to Chief ustice Burger. Dissenting in that case, le helpfully suggested that "if conven- ionalequai protection principles apply, hen presumably defendants could ob- ect to exclusions on the basis, not only )f race, but also sex. . . age. . . religious x political affiliation . . . mental capac- ty . . . number of children . . . living trrangements . . . and employment in a )articular industry . . . or profession . . ." Batson u. Kentucky, 476 US. at 124 Burger, C.J., dis~enting).'~ The Supreme Court will likely decide

histerm one of the objections suggested ~y the former Chief Justice -whether ~artiesmay constitutionaflystrike jurors Iecause of their gender." The Texas bun of Criminal Appeals, in dicta, has lraadly condemned aU "group bias," xciuding that stemming "from gender, ~ligron, ethnic or any other cognizable ro~p." '~ In other words, the possibili- es for expanding Batsonarewideopen anyers should be aggressive in as-

certing that their opponent is challenging urors based on some impermissible 3roup bias, and careful to make the lecessary specific and timely objec-

tions.

Pootnotes

1. SeeSwain u. Alabama, 380 U.S. 202 (1965); Strauder u. West W~inia, 100 US. 303 (1880).

2. Swailz u. Alabanza provides a graphic illustration of how difficult it was to meet this burden. There, the evidence showed that no black had served on a jury in Talladega, Alabama since 1950. Despite this seeminglytelling fact, the Conn held that the defendant had notestablishedsystematicexclusion, because he failed to show that the prosecution "incaseafter case, whatever the circumstances, whatever the crime andwhoeverthe defendant or thevictim may he, is responsible for the removal of negroes . . . with the result that no Negroes ever serve on petit juries." Swain u. Alabama, 380 US. at 223. By requiringproof of discrimination over a long period of time, the Court made it vimally impossible tomake out a prima facie case.

3. Id. at 95(emphasis in original). 4. Cuny u. Bmnnan, - S.W. 2d -, - No. 71,606 Vex. Crim.

App. December 8, 19931, slip op. 5. 5. E.g., Eastetw. State, 740 S.W.2d 107,

109(Tex. App.-AmarillolW, no pet.); Klineu. State* 737 S.W.2d 895,899 (Tex. App.-Houston Ilst Dist.1 1987, pet. reed); Catley u. Sfate, 726 S.W.2d 595, 597 (Tex. App.-Houston [14th Dist.1 1987, pet. refd).

6. Eg,Mewdu.Sta&,819S.W.2d869, 870 Uex. Crim. App. 1991); S a k a r u. State, 818 S.W.2d 405, 408 Vex. Crim. App. 1991); UnitedStates u. Mixon, 977 F. 2d 921, 922 6 th Cir. 1992).

7. Hinu. State, 827 S.W. 2d 860,863 (Tex. Crim. App. 1992).

8. Batson u. Kenrticky, 476 US. at 96. 9. Eg., Barnes u. State, 855 S.W. 2d

173, 174 Vex. App. -Houston n4th Dist.1 1993, pet. refd); Gerber u. State, 345 S.W. 2d 460, 465 ffex. App. - Houston [Ist Dist.1 1993, pet. refd); D~~tton u. State, 836 S.W. 2d 221, 225 Tex. App.-HoustonI14thDist.11992).

10. Chief Justice Burger also suggests hat the defendantsinthese caseswould lave toestablishstanding. Idat 12511.4.

11. J.E.B. u. TB., 606 So.2d 156 (Ala. 3. App. 19921, cart.granted, 113 S. Ct. 2330 (1993).

12. Curry u. Bowman, -S.W. 2d -, -No. 71,606 (Tex Crim.

App. Decembers, 19931, slip op. 4..

23

- - - - - - - - -

. V O I C E FOR T H E D E F E N S E

Innocent Most ofusatone timeoranotherhave

been trapped in the haUs of justice by a hailiff, a court reporter, or sometimes even a prosecutor, who says, "The Judge would like you to ralk to Mr. Jones concerning his case." And all at once, there is this sinking feeling as I remember readlng in the newspaper this morning about the man who just sexually assaulted a 90 year old woman with her family looking on as Four police officers charged into the room. Or we have gotten the telephone call from the judge, asking us to go to the jail and talk to an m a t e . And in some instances, we just received a letter from the judge stating that he has appointed us to represent Mr. Jones. When we were young and first stax-tingour career, these were not the dreaded communications that they become in later years. Nonetheless, the appointment to represent an indigent person in a criminal case will often ruin the best of days for an attorney. This is not something that the "rug lawyers" generally have to face in their practice. But those of us who practice law often get stuck with the possibility of uyhg a case withoutbeing adequately compensated. And in our jurisdictions out in West Texas, we are called upon to carry the burden for the remainder of the bar.

In the past twenty-one years, I have been called upon more times than I can remember to represent members of the indigent masses, these caUs seem to increase year by year. I cannot say that I look fonvard to the tasks thrust upon me, but they do not devastate my practice. Through the years, I have learned many ways to lessen the impact of the appointmentsadmy exposure to claims by a dissatisfied client that I have not performed my duties in a proper manner. This paper will deal primarily with handling theclient andcase prior toand including a plea bargain, but rhere will also be references to various trial suggestions. This presentation will not dwell on a great deal of case law, but shall approach the subject from a pclctical application standpoint.

The Appointment As stated earlier, the appointment

Until Proven Indigent by Randy Wilson

may come in many forms, and oftentimes, the case wlll be one which has received a great deal of media attention. Do not despair, as there will he brjghter days ahead.

On the day I am appointed, if the client is in jail, I go to the jail during the lunch hour, after work, or the next morning before I go to the office. By using these times, I am not taking away from nly 'paying" practice. The client should be interviewed immediately, for a number of reasons, and copiousnotes should be taken on an interview sheet (See Appendix No. 1). In addition, I set up an internal time-keeping schedule in the Re, which I will discuss Iater (see AppendixNo. 2). Also, on the day I am appointed, I write a Notice of Repre- sentation Letter to the District Attorney, with a copy to the Diskict Clerk, and a copy to the Judge who appointed me (see Appendix No. 3).

Initial Cllent Interview Generally, hut not in all cases, by the

time you first talk with your client, the State has already gotten everything they want out of him, including statements (wdtten and verbal), a guided tour of the crime scene or scenes, surrendering of evidence, etc. Many of the times the client has had exposure to the system through previous experience, and is very distrustful of "coua-appointed" lawyers. It is incumbent upon you to instill as much trust as possible in you from your client by being fair, honest, and very limited in the advice given at this time. He orshe, as the casemay be, will be at best, disrrustful of you until you demonstrate that you have genuine concern for his or her welfare. (One Factor you should always keep in the back of your nlind, is that if the verdict or plea bargain becomes unpleasant at some later date, you will probably hear from your client on a claim of ineffective assistance of counsel, or that you did not advise him of some particular matter or option which he in fact had at the time.)

Your trust can be built by being ~nquisitive as to the client, his background, his family, or his interests 3bviously, this will not work in every

instance, but you should at least try. Spend some time with the client in custody, trying to determine what he wants to do with his case, what he expects out of his case. In many instances, the client will be totally un- realistic, belligerent, racist, and for the most part, attempt to dominate you based upon a feeling of mistrust in all members of theestablishment. You can circumvent that distrust, by demon- strating yourinterest in helping him. If he continues to be difficult to deal with, you should let him know that you are going to handle his case withorwithout his assistance, and that his help would be beneficial to him. You can advise him that he does not have the right to "pick and choose" his appointed attorney, so it would be in his best interest to calm down and attempt to help you.

During this firstinterview, you should also advise the client of the necessity of telling you the truth. He probably won't be truthful, but you should spendsome time explaining why he should be totally honest with you. More than likely, duringyourrepresentationofthe client, you will find out that he has at the very least, "shaded" his version to you.

Get names and addresses of family members, employers, and friends who might be helpiid as not just fact witnesses, but alsocharacterwitnes8es. In an impact case, I often tape record the initial interriew and have it transcribed for my file, for future reference.

During this intentiew, you should lay out ground rules about: 1. Yourvisitation with himincustody; 2. Collect telephone calls from the

jail; 3 Correspondence; and 4. Discussing the case with anyone

else other than you. I also take two or three self-addressed

stamped envelopes to the client, so he can write me if he wishes to contact me 3r furnish me information. It is at this time that I tell him I will not accept collect calls from the jail Gom him. I Funher advise him that if he wishes to contact me, to use the envelopes to drop me a note and I will come and see him.


Another item, I always address during the initial intervie? is for him to "keep his mouth shut!" I tell him not to talk to anyone, (AND I emphasize ANYONE) including other prisoners, family nleinbers, jailers, law enforcement officers, etc. unless, I am present. I explain that all too often, a talkative client has talked himself right into an extended prison sentence.

Another aspect which should be discussed at this point is the range of punishment the offense carries. The client should be advised of the total range of punishment, including any fines which could be assessed.

After concluding the interview, I keep a record of the time spent, and record same. I then write the client in the jail, to confirm that I have spoken with him and that I will be advising him of any developments in his case (see Appen- dix No. 4). I also write a letter to the Sheriff, police and District Attorney, advising themthat1 havebeenappointed by the cou~t to represent the client and that I ain hereby invoking nly client's rights under the Constitution of the State ofTexas thathenot be in tervi~ed, questioned, interrogated or examined for any purpose unless I am present for same (see Appendix No. 5).

What Do I Do Now? At this point, I generally suggest that

you go to the prosecutor that is handling the case, if it has reached him, to discuss the case.

I have found, except in the impact cases, most prosecutors can be helpful in providing some short cuts to your investigation ofyour case. You canuse your situation to your advantage. Play the part of the beleaguered attorney who is having this case detract from a paying practice. They will generally give you a copy of your man's statementW without a motion. Gen- erally, if you handle it with some creative psychology, you can get then1 to give you names and addresses of witnesses, scientific reports, autopsy reports, lab analyses and oftentimes, get them to read or summarize what the witnesses have said, all without the necessity of filing nlotions. I have sometimes even been given copies of some or all of the witness statements. CAVEAT!!!! Double check what the prosecutor says the witness will say. I have found many times either the prosecutor was not completely honest with me, or the witness has changed his

story. Remember, these statements are prepared by law enforcement officers to make their case.

It is at this point that I make deter- minations concerning the need for in- vestigators, expert-witnesses, etc. Great strides have been made since my early years of practice to provide an equal footing for theindigentinthe preparation and presentation of his case. In addition, you maybeable toset upreversible error by the judge for denying you certain necessary investigation and/or availability of experts, by filing the motions and having the judge deny same.

I have had a great deal of success using high school teachers and college professors. These individuals lead a ratheruneventfullife andcanget excited about being helpful, through the use of their knowledge or testimony. If ap- proached properly, they can generally be used to gain knowledge of technical data. They are oftentimes better at testifying because they do not usually get involved in the "intriguing"world of criminal law. As a matter of fact, it is amazing the number of amateur "gun~shoes" that are out there in the teaching field. Some of them really get into the effo~t and are very helpful. In addition,veryfewof themare known to the prosecution and if listed on your subpoena list, oftentimes totally confuse the prosecution about your tactics.

If you intend to use professors or teachers to testify, be prepared to spend some additional time preparing then1 to testify. Make sure that they are advised as to the basic "ins" and "outs" of testifying. I have found most of them to be a little nelvous, but by using a little creative psychology, very helpful.

For instance, in a d n ~ g case. usually the only expert witness used by the prosecution is a Department of Public safety chemist. Most of the tune, these are people with only a bachelor's degree, and DPS or law enforcement schooling. However, in a case where

in Abilene,Texasand has beenlicensed to practice in Texas since 1970. He received his law degree From Baylor University School of Law. He is a frequent speaker at CDLP and local bar associations on criminal law. Randy is an active member of TCDLA and prec entty nominated for Board of Directors forKDIAandTCDLEI. He is alsoa life member of NACDL.

you are dealing with a questionable amount of controlled substance, some of the points you can make are:

1. Most of the time the DPS chemist has not made a "qualitative analysis.'' For instance, he has examined a substance which weighs 0.004 grams and contains cocaine. He cannot testify that the entire substance was cocaine, only that the total weight of the substance was 0.004 grams, and that the substance contained cocaine. In actuality, through independent analysis and/ortestimony, you can usually show that the actual weight of the controlled substance may actually be much less than the total weight of the entire exanlined evidence, andwhat adulteiants, if any, wereused. Furthermore, usually a college professor possesses nluchstronger credentials than the chemist, and in some of your sn~aller cities is well known and respected by the community. In my hometown, having the head of the chemistry department from the largest Church of Christ college in America, carries a lot of weight.

Another area that is generally over- looked is the area of psychology and also evaluation. Normally, a professor of psychology at a college or junior college will be most helpfill in determining various factors concerning the psychological evaluations secured by the prosecution. One area I have been most successful in attacking psychological evaluations is in the area of Pre- SentenceInvestigations. Ourprobation department is totally deficient in psychological testing and evaluation, due to the fact thatmost of the examinations and testing are done by staff members, who have very little qualifications in this field. If you handle the college or junior college professors with the proper amount of tact, you can gain invaluable knowledge, and oftentimes free testing.


Most colleges have student assistants or masters program students who are studying psychological andintelligence testing and who are willing to spend an inordinate amount of t h e assistingyou. In some instances they are most willing to do testing, evaluation, and reporting, at little or no cost to you.

I have had more than one instance, where my client had signed a confession prepared by the police, and with a little snooping and testing, determined that my client couldnot read orwrite, or that his intelligence level was so low that he did not understand the consequences of his actions in signing the confession, or that he did not have the needed level of understanding to know the meaning of the words contained in his confession.

Another areawhere college professors may he helpful is in the area of translation. I have defendedlranians, Greeks, Filipinos, Hispanics, as well as several other foreign nationals. These individuals may or may not speak or understand the Englishlanguage. Inorder to ensure that nly client had a complete understanding of the proceedings or of his options, I have had a great deal of success in gaining assistance from college professors in translation of not only attorney-client conversations but also court proceedings. I have always been more than a little suspect about a member of the "courthouse" or "law enforcement" staff acting as my inter- preter. There's something about that kind of "help" that1 try to avoid. Another good reason for using a professor to translate, is to protect yourselffrom any future claim by the client that he did not understand whatwas going on, orwhat his options were. I have even had professors translate my correspondence to nly client into their native language, so that I would have a record of an explanation that he could understand. Also, I have used professors to assist me in writing letters to the family of my client and to translate their correspondence to me.

A lot of colleges and junior colleges are offering courses and degrees in the Criminal Justice field. In this field they train individuals to become sheriff's deputies, police officers, and prison guards. Oftentimes, these professors have impressive credentials and can be very helpful in examining for instance,

1. Proper procedure for issuance of a search warrant;

2. Search and seizure; 3. Warrantless arrest; 4. Evidence preservation; 5. Interrogation techniques, etc. You may never use them to testify,

but I have found them most useful in leading to other information regarding procedural guidelines which shorrldbe used by peace oficers in certain sihla- tions. In addition, on two occasions, I used the professor to assist in the investigation of a criminal case. They seem to enjoy playing a role on the defense side of the docket.

At some point, you may also make the determination that you need assistance in investigating the case. You will probably have to file a motion for financial assistance in securing the services of an investigator. (see Ap- pendix No. 6) For years, we were limited by thecourts toa $500.00 ceiling for services of a private investigator. Many of the judges I have dealt with, would hold you to the figure even on a capital or majorin~pact case. However, now under the Code of Criminal Pro- cedure, and case law (see AKE VS. OKLAHOMA, 105 S.Ct. 10871, you are no longer limited by that figure. The judge may us to limit you citing high costs etc. but upon proper motion and showing of necessity and indigency on the part of the client, you may be able to insert error in your case for appeal purposes.

I have gotten judges to approve my educational expenses in the proper case to be able to cross-examine an expert witness called by the State.

Prior to getting your investigator appointed, havethe areas of needoutlined and ready to present to the Court, to demonstrate the necessity of having an investigator appointed. Be brief but also general in your outline and presentation in order to preserve the integrity of your investigation into any possible defenses. A very useful argument in some of the smaller jurisdictions is that the court will have to pay you for your out of court investigative time, and an investigator is much less expensive to the countypayingfor your services. This is especially true in capital or major impact cases.

I suggest that in your dealings with theCourtinrepresentingyourappointed client, that you use the psychology on the judge that the time you are having to spend and the money that the county is going to have to pay as the method to

get outside help. I have never had a great deal of difficulty in convincing a judge of the economics involved, playing the "poor overworked underpaid appointed counsel." After CompletingYourInvestigation

Prepare yourself to be conversant in ALL the facts of the case and then discuss them with your client. Do not be afraid to confront him with his misuse of the truth or the faults in his story. Just the same, do not hesitate to point out the good points of his case, which are generally few. He needs all the encouragement he can get at this point.

I generally tell the client at this vis~t that I have not gotten a plea bargain recommendation, but nowwillsitdown with the prosecutor and attempt to see what type of "deal" can be cut.

Once again, after the interview I confirm the visit by letter to the client, putting in the subject matter discussed.

Generally, the next step is to discuss the case with the prosecutor, to see what his attitude concerning the case will be regarding plea bargain, trial, etc. If at this point he makes an offer, I ALWAYS confiim the offer by letter to said prosecutor (see Appendix No. 7). In this letter, I advise the prosecutor I will have to discuss the offer with the client.

The next phase can be trickiest of all - the discussion of the plea bargain offer with your client. Unfortunately, a large percentage of these indigent clients are not eligible for probation, and because of previous and/or multiple convictions. Oftentimes, the plea bargain, is one which will not be accept- able to your client, and sometimes anything short of a public apology by the police and prosecution would not satisfy your client. Therefore, once again, you have to use some psychology on the client. Some major DON% ARE:

A. Don't tell him that he has to take the deal;

B. Don't tell him if he does not acceot the deal. vou will withdraw:

c.' Don.t teif him that he a d accept the deal;

D. Don't tell him that he should accept the deal because his family members want him to;

E. -tell him that he has to accept the deal because he will only have to serve much less than the total number

Corrti~rrred oorzprige 39


Trial Evidence Special Problems in Evidence

Penalty Phase: special Problems in Evidence

Part 7

S. Rule BOl(e)(2)Q

1. CALLA WAY V. STAE2 818 S.W.2d 816 (Tex. App. - Amarillo 1991)

"The Texas Rules of CriminaI Evi- dence are derived fmm the Federal Rules of Evidence and, inthe cotistruc- tion oftheTexas rules, persuasivevalue is accorded the federal decisions inter- preting the federal rules. Texas rule 801(e)C2@) is identical to federal rule 801C(n(2)(ri), which was construed in Boacfjaily v. Unitedstate, 483 U S 171, S.Ct. 2775,97 L.Ed.2d 144 (1987).

'The Bowjuily court held that before a co-conspirator% declaration is admissible wer objection, there must be evidence that there was a conspiracy in connection with the declarant and the non-offering party, and that the statement was made dwing the course and in perpetuatian of the conspiracy. 483 U.S. at 175, 107 S.Ct at 2778. Contrary t o appellant's contentions that the conspiracy nmst be established independent of declarations, hearsay statements may be considered by the trial court in determiningwhether evidence is admissible under the co-conspirator nde unless therules of privilege dictate otherwise. Id. at 181, 107 S.Ct, at 2781.

"The existence of a disputed con- sphcy must be proved by a preponderance of the evidence, id. at 175,107 S.Ct, at 2778, and it may be established

by direct or circumstantial facts and may be inferred from the evidence. Grant u. Strife, 140 TexCr.R. 46, 143 S.W.W 383, 384 (1940). Each declaration or act of a coconspirator up until the object of the conspiracy is complete isadmissible, Hdmu.State, 493 S.W.2d 227,230CTex.Cr.App. 1973, althoughit occwned out ofthe presence and hea191lg of the defendant. Sadder v. State, 167 Tex.Cr.R 309, 320 S.W.2d 146, 149 C19591. Aconspiracyincludesevaything within the contemplation of the conspirators, anda conspiracy is terminated only after every act subsequent to the commission of the dense within the planand breadth of the conspiracyhas been pedormed. BUM& v. Safe, 135 Ted3.R. 530, 122 S,W.Zd 297, 299 (19381."

2. DEEB V. STAX?$ 815 S.W.2d 692 CTex.Cr.App. 1991)

"First, there is the issue of whether Spence's statements to Beckham were made during the course of the con- @racy. The essence of theconspfracy was for Spence m kill Kelley so that appellantcouldcclllect on the insumnce policy and pay Spence from that policy 3ayoff, and for Spence to kill Franks to satisfy appellant's desire for revenge. 4t the tiincSpenee made his statements o Beckham, Franks was dead, zppdlant's insurance policy on KeUey lad terminated, and Spence was in- :merated pending trader to theTexas 3epartment of Corrections on an un- .elated felony conviction. There was lo possibility of an insurance scam myoff or even of Spence being h e to :omnit the murder of Kelley. The fact hat Kelley was still alive and Spence mad not yetbeen paid are notdispositive. Fe conclude that the conspiracy had =en terminated before Spence nlade ]is statements to Beckham in jail.

"Coconspirator's statements made af- terthe terminationofthecowpiracyare inadmidble. In Wurd U. St&, 657 S.W.2d 133 (Tex.Gr.App. 1983), this court held that the defendant's wife's statemenm to a third paw a few hours after the commission of the murder were not made during the course of the conspiracy. 'Ibis followed the 'general rule than an act or satement of one coconspirator after the completion of the conspiracy is inadmissible against the accused. Dokado u. St&?, 544 S.W.2d 929, 931 (Tex.Cr.App. 19772).' %is Caurt concluded that the wife's statements were not admissible untler the coconspirator exception to the hearmy nde. Waudv, S~ate, 657 S.W.2d at 137. This Court reached a similar


conclusionon rehearingin 1~biteu. State, 451 S.W.2d 497, at 502-503 (Tex.Cr. App. 1970) .

"The state argues that a conspiracy cannot be terminated until the object of the conspiracy is conlpleted: in this case, the nlurder of Kelley and the payoff to Spence. The state cites Helm u. State, 493 S.\V.Zd 227, 230 (Tex.Cr.App. 1973); and B,orun v. State, 576 S.W.2d 36, 41 (Tex.Cr.App. 1979). The implication of this argument is that a conspiracy cannot be terminated by failure and can never be frustrated by insurnlountable circumstances, as itwas in the instant case. Utilizing the state's theory, the conspiracy bebeen appellant and Spence could be said to still be ongoing, even though the insurance policy has lapsed and both men are incarcel-ated on deathrow. We disagree. This conspiracy was also terminated by failure and by frustration of'the object of the conspiracy. This holding is not without support.

"InKrrrletuich v. UnitedStates, 336 U.S. 440, 69 S.Ct. 716, at 718, 93 L.Ed.790 (1949), the Court ruled that a conspiracy can be terminated by success or failure. In K~'rrlerutch, the Court held that the coconspirator's statement was made after the objectives of the conspiracy had either failed or been achieved. In Andemnu. UwitedStates, 417U.S. 211, 94 S.Ct. 2253, at 2259, 41 L.Ed.2d 20 (1974), the Coult, relying on Krrrleiuich, held, 'Thel~earsay-conspiracy exception applies only to declarations made while the conspiracy charged was still in progress.' We conclude that Beckham's testimony does not fit thecoconspirator's exception to the hearsay rule because the conspiracy was temlinated prior to Spence's jailhouse conversations with Beckham.

"Second, appellant argues that Spence's statements to Beckham were not made in furtherance of the conspiracy. \Ve agree. Spence's statements to Beckham did not advance the cause of the conspiracy or serve inany way to facilitate the conspiracy. In Helms v. State, 493 S. W.2d, at 230, the coconspirator's statement was made to facilitate the disposal of the murder weapon. In Rodrigtrez v. State, 552 S.\V.2d, at 454, the coconspirator's statements were made to further the negotiations for the purchase of the illegal drugs. In Denirey u. State, 558 S.\V.Zd, at 469, the coconspirator's statements were made for the purpose

of disposing of the fruits of the crime and evidence that the crime had been committed. In contrast to these examples, in Wardv. State, 657 S.W.2d, at 136-137, the coconspirator's statements were made in response to questioning after the nlurder had been conlpleted and the defendant was in custody. Spence's statements in the instant case are like the coconspirator's statements in Ward, and in contrast to those in Helm, Rodrigrrezand Detnzey. Spence's statements to Beckham were not made in furtherance of the conspiracy.

"The requirement that the coconspirator's statements be in fur- theranceof theconspiracy bothjustifies and explains its status as an exception to the hearsay rule. In Ray, Law of Evidence, lA, 5 1171, at 332 333 (19801, the author explained,

It is an orthodox rule of the criminal law that each conspiratoris responsible for the acts of his coconspirators done in pursuance of the conspiracy and during its existence to that extent each conspirator is the agent of all others. This applies to verbal as well as non- verbal acts, and to assertive as well as non-assettive conduct. Hence the rule thatwhena conspiracy had beenproved the acts and declarations of each conspirator during the pendency of the conspiracy and in furtherance of the conlnlon design are receivable against his coconspirators as admissions.

"In Ande~sonv. UnitedStates. 94S.Ct., n. 6, at 2259, the Supreme Court explained the basis for the exception:

The rationale for both the hearsay- conspiracy exception and its limitations is the notion that conspirators are partners in crime . . . . As such, the law deems them agents of one another. And just as the declarations of an agent bind the principal only when the agent acts within the scope of this authority, so the declarationof a conspirator must

his partner,

"Spence's statements to Beckhamalso Fail to quallFy as an exception to the hearsay rule because they didnot serve to further the conspiracy to murder Gayle Kelley for remuneration. The trial court erred when it admitted Beckham's testimony over appellant's

hearsay objection."

3. IV7UHM.Y V. STAE, 815 S.W.2d 743 (Tex. App: Waco 1991)

"Because the ruleadopts thewonling ofthe Federal Rules ofEvidence and the intent of the Court of Criminal Appeals was to adopt the interpretation as well, we can look to the federal decisions to determine the substance of the 'furtherance' requirement. See Canrpbellu. State, 718 S.\V.Zd 712, 717 (Tex.Crin1. App. 1986). The federal decisions recognize that Federal Rule of Evidence 801(d)(2)(E), the counterpart of Texas Rule of Criminal Evidence 801(e)(2)(E), embodies a long-standing exception to the hearsay rule, which allows statements made by one member of a conspiracy during the course and in furtherance of the conspiracy to be used against othermembers of the conspiracy if certain conditions aremet. See United States u. James, 590 F.2d 575, 577 (5th Cir. 19791, colt. denied, 442 US. 917,99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). The rationale behind the coconspirator rule is the notion that coconspirators are partners in crinle and the law deems them agents of one another, so that the 'in furtherance of the conspiracy' requirement is analogous to the agency theory of 'in the scope of the agent's authority.' Andetsott v. United States, 417U.S.211,218n.6,94S.Ct.2253,2259 n. 6, 41 L.Ed.2d 20, 29 n. 6 (1974); US. u.Ascarrrrizz, 838F,Zd759,762 (5thCir. 1988); Janzes, 590 F.2d at 578 n.2. Thus, statements made by coconspirators after the end of a conspiracy cannot be in furtherance of its objects. UnitedStates u. Tille,729F.2d615,620(9thCir. 19841, cettdenied, 469U.S. 845,105S.Ct. 156, 83 L. Ed.2d 93 (1984) .

"A survey of decisions by the federal appellate cou~ts reveals a distinction between hearsay statements by coconspirators that met the 'furtherance' test of the rule and those that did not. Generally, statements that met the test and were held to have been in furtherance of the conspiracy were those made (1) with the intent to induce another to deal with the coconspirators or in any other way to cooperate with or assist the coconspirators, (2) with the intent to induce another to join the conspiracy, (3) in formulating future strategies of concealn~ent to benefit the conspiracy, (4) with the intent to induce continued involvement in the conspiracy, or (5) for the purpose of iden-

I I

V O I C E FOR THE D E F E N S E

tifylng the role of one conspirator to another. See Unitad States v.johnson, 872 F.2d612,623 0 th Cir. 1989); US. u, Wood, 834 F.2d 1382, 1385 (8th Cir.

I 19872; United States v. Cibbs, 739 F.2d 838, 845 (3rd Cir. 19841, cert. denied, 469 U.S. 1106.205 S.Ct 779.87 L.Ed.2d ., - 774 (1984); daired~fafap v. Lq~ton, 720 F.2d 548, 556 (9th Cir. 1983, GN. denied, 445 US. 1069, 104 S.Ct. 1423,79 L.Ed.2d 748 (1884). These statements were found ro further the conspiracy because they 'setin motion transactions that were an integral part' af the common objective of theoonspiracy. ES. v. FieIdfng, 645 F.2d 719, 726 (9th Cis. 1981).

"Examples of statements that did not meet the 'furtherance' test, and thus remained hearsay, were those that were (1) casud admissions of culpability to someone the declaranthad individually decided to trust, 12) mere narrative declarations, (3) mere conversation between conspirators, or(4) 'puffing' or 'boasts'by aconspirams. Gibhs, 739 F.2d at 845; FJsIdifig, 645 F.2d at 726; United States v. Castillo, 6615 F.2d 878,883 (9th Cir. 1980); W;nt&Stamv. McGui~.e~ 6011 F.2d 1028,1032-33 (5th Cu. l m ) , cert. denied, 446 U.S. 910,100 s.Ct. 1838,64 L.Ed.2d 262 (1980); United States u. Eubatz&, 591 F.2d 513, 520 (9th Cir. 19791; United States v. Moore, 522 F.2d 1068,1077 0 t h W. 1975)> ces. denied 423 US. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637 (1976J. Statements such as these were held not to have advanced the objectives of the conspiracy. byton, 720 F.2d at 556. Thus, the 'in furtherance of the conspiracy' requirement in Rule 801(e)(2)(E)' is designed 'to protect the accused a~ainsr idle chatter of criminal partnersaswell asinadvertently misreported and deliberately fabricated evidence.' Id. "

T. Rule 803(34

1. NBWTDN K =Am, - S.W.2d, 1992WL 175742 @ex. Cr. App.,Jnn. 17, 1992)

"[Alppellant contends that the trial c o w erred by averruling her objection to the admission of Ramona Bell's testimony concerning statements made to her by Adfian Newton, appellant's deceased husband. Appellant argues that the statements are inadmissible hearsay. The State countess that appellant did not properly object, thereby not presewing the error for appellate review. In the alternative, the State argues that thetestimmy-ofBell is admissible either as a state-of-mind exception to the hearsay rule or pursuant to V.T.C.A., Penal Code, Section 19.OGCa).

"During trial and befare the jury, in testifying about the subtance of her telephone conversation with Adrian Newton, Bell engaged in the following exchange with counsel for the State:

Q. What did he tell you about being tired at that t he?

A. [Bell1 That he was going to sleep but not until Frances left.

Q. Did he tell you vhy he wouldn't go rn sleep until Frances left?

A. Yes. Q. And what did he tell you? A. That he didn't want to fall asleep

while she was there because he didn't trust her.

Prior to testifying as above, and outside the presence of the jury, the Srate elicited essentially identical testimony From the witness. Both parties exten- ;ively argued appellant's point, that the proffered testimony m s hearsay, and Lhey specifically joinedissue on whether he testimony fell within the state-of- mind exception to the hearsay ~ l e . The trial judge d e d against the ap- ?ellant. The {ury was brought back in, tnd counsel for the State indicated to he witness that he wanted 'to go back o that phone convecsation again."'

* * 'Wppellant claims that the admitted

statements violated her rights m con- iontation. She m s harmed, appellant :ontends, because the statements es- ablished Adrian Newton's fear that tppdlant would harm him.

"The State counters that the statements

arP. admissible to show the deceased's then existing state of mind or emotions. Tex. T. Crim. Ev. Rule 803(3) provides an exc~ption to the hearsay rule far '[al statement of the kclarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, phnt, motive, design> mental feeling, pain, or bodily health), but not including a statement of memory or belief to pmve thefactrememberedarbelieved1.I' The State flnds in Newton's statements an expression of apprehension, which is "characterid* by what the victim thought appellant might do to him.

"The victim's statements relate only that he is tired, wan@ to go to sleep, but does not trust appellant. To argue, as do bothappellant and thestare, that the statements imply or, in fact, are proof that appellant actually harmed the deceased appears to us to be mere speculation. On their face, deceased's statements relate a state of mind, and we Rnd them admissible under Rule 803(3>."

",& folldwins are not excluded by I

1. FiZLER V. =A% 829 S.W.Zd 191 :Tex.Cr. App. 1992)

Vhtle mnftned in jail awdting tsial, 4ppelIanthadanumberofmnversations with a cohort which were overheard by xher inmates and, in at least one case, >y a jailer. In these conversations, 4ppeilant occasionally spoke in such a manner as to imply that he did not mmmit the mvrder of Loretta Stephens >y himserf but that he had agreed to zccept the entire responsibility for it

29


anyway. A written report to this effect was prepared by a deputy sheriff who had overheard parts of one such conversation herselfand towhomadditional parts had been related by other de- tainees. When Appellant sought to elicit testimony from the deputy concerning contents of this report, the State interposed a hearsay objection, which was sustained.

"In his eight point of error, Appellant seems to maintain that the report was admissible as an exception to hearsay under Texas Rules of Criminal Evi- dence, 803(8)(B) and 803(8)(C). But he offers no explanation why the written statement of a deputy sheriff, wbo is undonbtedly a law enforcement officer, ought to be received under a rule which expressly excludes 'matters observed by police officers and other law enforcement personnel[.]' Rule 803(8)(B). Similarly, ge suggests no tenable interpretation of the ruleswbicb could easily accommodate theunenlbellished report of an eavesdrop per to the status of a 'factual finding0 resulting from an investigation made pursuant to authority granted by lawI.1' Rule 803(8)(C).

"Evidently, the realgist of Appellant's eighth point is that the United States Constitution requires admission of the deputy's report for the truth of the matters asserted therein, even though the Rule makes it objectionable, because it was essential to the plausibility of his defensive theory.

"In the first place, Rule 803(8)(B) requires on its face a thoroughly even- handed application, while Rule 803(8)(C) specifically benefits only the defendant. Accordingly, there is no potential disadvantage in the rule specific to an accused person because it is reasonably clearthat the evidence would be as objectionable if offered by the State.

"Secondly, because it lacks any dis- tinguishing mark of reliability, the report Appellant sought to introduce in this case is precisely the sort of thing when the hearsay rule, in spite of its many exceptions, is still specifically designed to exclude. It is manifest from a reading of the entire record that Appellant actually elicitedvirtually the same evidence

by direct examination of the inmatf fromwhom the deputy sheriff obtainec her information in the first place. In ar ironic twist, Appellant nevertheless ar. gues that the written report was more desirable to him than such testin~on) because the inmate witness then gave further evidence detrimental to him or cross examination. Evidently, he be- lieves that the United States Constitu- tion somehow prefers a written repon to the live testimony of a witnesr whenever it might enable an accused tc curtail the State's oppormnity for effective cross examination.

"This proposition is, of course, unten- able. It is inconceivable that the United States Constitution would sanction the suppression of relevant inculpatoq evidence under the aegis of a doctrine whose very purpose is the removal of unreasonable obstacles to the truth finding process. Because the ruling of the trial court about which Appellant cotnplainsdidnotactually deny him the proof he wanted, and because he is not entitled to deny the State an opporh- nity for rebuttal, we are satisfied that his rights to compulsory process and due process of law were not abridged in the manner he contends.

"Appellant's eighth point of error is overruled."

V. Rule 803(24)

RULE 803 Hearsay Exceptions; AvdabilltvofDedarant Immaterial

(24) statkrnent against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary orproprietyinterest, or so far tended tosubject him to civil orcriminal liability, or to render invalid a claim by him against another, or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be uue. A statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

1. WILTAIMS V STAE, 815 SS.V.2d 743 (Tex App. - Waco 1991)

"We recognize the confl~ct between Rule 803(24) and Duuts. See Tex.R.Crim.Evid. 803(24); Davis, 772 S.IV.2d at 569. Rule 803(24) authorizes the admission of statements against

interest without any requirement that the offering party demonstrate unavailability of the declarant; Davis held that, because of the Confrontation Clause, evidence of a tlurd-party statement against interestwas not admissible without proof of the declarant's unavailability or a good faith effort to producehim. Seeid.;U.S. Const. amend VI, cl. 2.

"Out-of-court declarations have generally been admitted only when (1) the offeringparty produces or demonstrates unavailability of the declarant whose hearsay statement is offered and (2) other 'indicia of reliability' demonsuate the trustworthiness of the statements. Ohio u. Robets, 448 U.S. 56, 66, 100 S.Ct. 2531,2539,65 L.Ed.2d 597 (1980). The Confrontation Clause does not, however, necessarily prohibit the admission of hearsay statements against criminal defendants, even though the

clause. Iduhou. Wight,-US-, 110S.Q. 3139,3146,111 L.Ed.2d 638 (1990). The Clause permits, where necessary, the admissionof certain hearsay statements against a defendant despite his inability to confront the declarant. Matylund u. Cruig, -US-, 110 S.Ct. 3157,3164, 111 L. Ed.2d 666 (1990). Coconspirators' statements may be admitted without a. showing that the declarant is unavailable to testify. United States u. Inadi, 475 US. 387, 392-400, 106 S.Ct. 1121, 1124-29, 89 L.Ed.2d 390 (1986).

"There are good reasons why the unavailability rule, developed in cases involving former testimony, should not be applied to statements against interest. Former testimony is often only a weaker substitute for live testimony, and when two versions of the same evidence are available, a longstanding principle of the law of hearsay favors the better evidence. Inadi, 475 U.S. at 394-95, 106 S.Ct. at 1126, 89 L.Ed.2d 390. By analogy, Inadi'sreasoning that unavailability need not be shown prior to the admission of coconspirators' statements demonstrates that unavailability need not be shown prior to the admission of statements against interest. See id. A non-defendant's statements against interest provide evidence of his perception of his own conduct which cannot be duplicated, even if he testi- fies. See id. We have historically tn~sted statements against aperson's pecuniary, proprietary, financial, or penal interest


made outside the courtroom because they are based on a knowledge of human nature. 1AR Ray, Texas Law of Evidence Civil and Criminal 4 1002 (Tex. Plactice 1980). Experience and common sense both tell us that self interest causes men to be cautious in saying anything against themselves. Id. Therefore, a statement containinga fact directly against one's interest is so un- likely to be untrue or inaccurate that it is deemed wotthy of consideration by the july, even though the sanction of an oath and the test of cross examination are wanting. Id. In addition, in a criminal case the relative positions of the third-party declarant and the defendant will usually have changed substantially between the time of the statement and the time of trial. See Inadi, 475 US. at 394-95, 106 S.Ct at 1126, 89 L.Ed.2d 390. Thus, the admission of a non defendant's statements against interest into evidence actually furthers the vely mission of the Confrontation Clause, wliichis to 'advance the accuracy of the truth determining process in criminal trials,' and little, if any, benefitwould be accomplished by imposition of an independent unavailability requirement o n our statement-against-interest exception to the hearsay rule. See id.; Tex.R.Crini.Evid. 803(24).

"Rule 803(24) does not require a showing of unavailability for a statement against interest to be admitted into evidence. Tex.R.Crim.Evid. 803(24). The rule's provision that the unavailability requil-ement is unnecessary has been characterized as 'wise.' 1A R. Ray, Texaslaw of Evidence CivilandCriminal 1003 (Texas Practice Supp. 1990). Fur- ther, proof of unavailability to testify to statements against penal interest has never been requil-ed in Texas. Ramirez v. State, 543 S.W. 2d 631, 632 (Tex.Clrini.App. 1976). We therefore overrule Dauis to the extent it requires the offering party to show that the declarant is unavailable or a good-faith effort to produce him as a prerequisite to the admissibility of statements against interest. SeeTex.R.Crim.Evid. 803(24); Davis, 772 S.\V.Zd at 569.

"Roberts suggests that the indicia-of- reliability requirement can be met in either of two circumstances: (1) where the hearsay statement 'falls within a firmly rooted hearsay exception,' or (2) where it is suppolted by 'a showing of particularized guarantees of tnlstwor- thiness.' 1Vright, Y.S._, 110 S.Ct. at

3147,111 L.Ed.2d 638; Robejts, 448 U.S. at 66, 100 S.Ct. at 2539,65 L.Ed.2d 597. The exception for statements against interest is one of the oldest exceptions to the hearsay n~le. 1A R. Ray, Texas Law of Evidence Civil and Criminal 6 1001 (Texas Practice 1980). Thus, a showing of 'particularized guarantees oftrustwonhiness' of statements against interest is not required and our mle allowing admission of such statements as an exception to the hearsay rule satisfies the Robe~ls' requirement of indicia of reliability. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d 597; Tex.R. Crini.Evid. 803(24).

"Because (1) unavailability of the declarant need not be shownand(2) the indicia-of-reliabilitv reouirement is sat- * . isfied, the Roberts'requirementsfor out- of coutt declarations are met by Rule 803(24), and the Confrontation Clause is no obstacle to the admissibility of statements against interest. SeeRobe~ls, 448 U.S. at 66. 100 S.Ct. at 2539. 65

~ .. , L.Ed.2d 597; ~ e k . ~ . Crin~.Evid. 803(24); 33 S. Goode, 0. Wellborn and M. Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal 5 803.29 n. 13.5 (Tex. Practice Supp. 1990) .

"We have found no case, other than Davis, inwhicha trial court has admitted a non-defendant's statement against interest into evidence when offered by the prosecution. SeeDauis, 772 S.W.2d at 569. Statements against interest made by defendants have been admitted into evidence when offered by the prosecution. E.g., Flix u. State, 782 S.\V. 2d 1, 3 (Tex.App.- Houston [14th Dist.1 1989, pet, refd); Reytddsv.State, 744s. W.2d 156,161 (Tex. App. Amarillo 1987, pet. refd). These cases may be subject to criticism, however, because the underlying premise of the rule is that the statement was made by a third person. SpivLy v. State, 748 S. W.2d 18, 19-20 (Tex.App.- Houston (1st Dist.1 1988, no pet.); 33 S. Goode, 0. \Vellborn and M. Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal 5 803.29 (Texas Practice Supp. 1990). Although a non-defendant's statement against interestwas admittedpriorto the rule as exculpatory proof when offered by a defendant only if the non-defendant had testified as awitness for the state or if (1) the state was relying on circuni- stantial evidence, (2) the guilt of the non-defendant was inconsistent with the guilt of the defendant, and (3) the non-defendant was so situated that he

might have committed the crinie, Ewin u. State, 729 S.W.2d 709, 714-17 (Tex.Crim.App. 1987) (explanation of the two premle lines of cases), a non- defendant's statement against interest offered by a defendant seeking to ex- culpate himself is admissible under the rille. See Tex.R.Crim.Evid. 803(24); IVilIia~ns u. State, 800 S.W.2d 364, 367 (Tex.App.- Ft. Worth 1990, no pet.) (statement not admitted because defendant failed to corroborate); House u. State, 733 S.W.2d 278, 279 n. 1 (Tex . App. - Texarkana 1987, pet. refd). The rule makes no distinction between statements offered by the state and those offered by the defendant; it allows the admission of a statement against interest as an exception to the hearsay rule if theconditions ofthe rulearemet. See Tex.R.Crim.Evid. 803(24); 33 S. Goode, 0. \Vellborn and M. Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal 5 803.29 (Texas Prac- tice Supp. 19901."

W. Rule 804(a)(l)

RULE 804 Hearsay Exceptions; Deflarant Unavailable

(a) Demtion of unavailability. "Unavailability as a wimess" includes situations in which the declarant: (1) is exenipted by ruling oFthe court

ontheground ofprivilege from testifying concerning the subject matter of his statement; o r . . .

1. JONES K STAE, -S.W.2d_, 1992 \VL 232834flex.Cr.App. Sept. 23,1992)

"A witness is rendered unavailable whenshe invokes herFiFtli Amendment privilege not to testify.Tex.R.Crim.Evid. 804(a)(l) (Awitness is unavailablewhen she 'is exempted by ~uling of the coult on the groundof privilege from testEying concerning the subject matter of [her1 statement.'); see also Granger u. State, 653 S.\V.Zd 868, 873 (Tex.App.-Corpus Christi 19831, AfCd, 683 S.\V.Zd 387 (Tex.Cr.App. 1984), cert. denied, 472 U.S. 1012,105 S.Ct. 2713,86L.Ed.Zd728 (1985). Since Comalander asserted her privilege against self-incrimination, she was unavailable as a witness to appellant. W

Thisa!ticleruill becontinued in the n e t issue of Voice.

- - - -

VOICE FOR THE DEFENSE

Joint Defense Agreements -

by David L. Botsford

Part 2

F. ADDITIONAL CONSIDERATIONS It is extremely important that the join

defense agreement provide that the joint defense agreement itself is no subject to disclosure and that it [and it: mere existence and the parties/signato ries to it) is a privileged document ir and of itself. The reasons for this shoulc be fairly self-evident, particularly ir light of the foregoing discussion. You willnot necessarily want anyone else tc know you have entered into a join1 defense agreement with other counsel. Otherwise, if a prosecutor knows about the existence of a joint defense agreement, orifopposingcivilcounsel knows about the existence of a joint defense agreement, there may be aggressive effons by them to try to "cut a deal" with one of the parties/signatories to the agreement so that they can thereafter attempt to disqualify you. It is for this reason that the agreement should have a clause prohibiting any party/signatory to the agreement from ever filfng or prosecuting a motion to disqualify the attorney for any other partyfsignatory to the agreement regarding any legal matter wit11in the scope of the joint defense agreement.

An aggressive prosecutor can also use the joint defense agreement to show ongoing conspiratorial activity and to obtain materials that would not othemise be subject to discovery and/ or subpoena. Indeed, a federal prosecutor recently argued at closing argument in a bank fraud case that since one alleged co-conspirator's counsel Ccwnsel for client A) had supplied another co-conspirator's counsel Lcounsel for client Bl Rith a deposition of a key governmentwitness taken days prior to the criminal trial in a parallel civil proceeding (which involved client A but not client BJ, the sharing of that deposition obviously showed that the conspiracy between client A and client B was still ongoing. This argument was made even though the conspiracy alleged in the indictment had allegedly terminated five years prior to the time the depositionwas taken by counsel for

co-defendant A and shared with coun sel for co-defendant B. Unfortunately trial counsel did not object to rhe argu ment (and he had not filed a motion ir l i n e to preclude such nonsense) anc on appeal, the plain error standarc applied. The Fifth Circuit did not finc that the argument constituted plain er ror. United SIates v. Pare&, 926 E.2d 402 (5th Cir. 1991)?

Furthermore, once a privileged communication is disclosed, the attorney-client privilege is lost and cannot be reasserted United States u. Suun?z, 820 F.2d 1158 (11th Cir. 1987). Care must be taken by counsel handling the civil and/or criminal proceedings to establishand protect theattorney-client privilege wherever and vhenever pus- sible. To do so, counsel must ensure that either he or his authorized agents personally conduct the investigation and render legal advice inanticipation of litigatiom'prosecution. HIckmdn u. Tayloc 329 US. 495 (1947); @john v. United States, 449 U.S. 383 (1981). Ex- pertsworking on thedefense case, such as auditors or accountants, must be hiredby defense counsel, not the client, and must necessarily report to the counsel andnot to theclient Otherwise, there can be a serious issue raised that the privileges have been waived.

The risk of disclosure of contidential zommunicationscompounds, of course, when the client faces two judicial pro- zed i i s . Disclosing or partially dis- :losing privileged information may be &dvantageous in one proceeding but lot the other. See TeachetsZns. G An- ~ 1 4 i i y Assoc. of A?wrica u. Shanamck Btnudcgsfing Co., 521 F.Supp. 638 S.D.N.Y. 1381). For instance, counsel epresenting a defendant in a civil suit or business torts relating to a failed inancial institutionmightwant to prove lis client's reliance on counsel, but to lo so, the privilege the client had with he attorney who he relied uponwlll be vaived. T M s will then a b w the pros- ,cutor in the corresponding criminal nvestigationto put the attorney in front ~f the grand jury or otherwise interview ljm. Thus, the timing of the waiver in he civil case may be eXVemely important 3 a strategy not to discIose to the

prosecutor the deknsive theory. Ifdisdosure of privileged matters are

made in one ofthe parallel proceedings, the adversary in the other proceeding can obviously obtain discovery of fhat communication. In addition, the adversary in both the civil and criminal proceedings may be authorized to seek further privileged communications relating to the same snbiect matter as the disc6sed infom~atiok Known as the "fairness doctrine," partially disclosed privileged information may require production of the remaining communication. See I I I re VonBuh?ro, 828F.2d 94,101 (2d Cir. 1987). However, the fairness doctrine may only apply where the holder of the privilege used the disclosedinf~nnationasa "sword" rather than a "shield," to the legal detriment of the adverse party. Id at 103. Cf: In re Sealedcase, 676F.2d793,809 (D.C. Cir. 1982)[Courts retain discretion "not to impose full waiver as to all communications on the same subject matter where the client has merely disclosed a communication to a third party, as opposed to making some use of it]. Thus, it should be obvious that a joint defense agreement needs to protect all parties From disclosures by signatories to it. a

Thus, a joint defense agreement should also contain a provision that the ~nformation shared between the parties 0 it cannot be shared with any other xrtieswithout theconsentof all parties o the agreement. This is important 3ecause often times, attorney A will lave a joint defense agreement with ittorncy 1% and altorncy will also hiwc I bin1 defense agreerncnt with :rrtornev

but attorney ;has not entered into k oint defense agreement with attorney 3. Unless restrictive language is con- ained in the agreement between Aand 3, A can then share privilegedmaterials vith C due to A's joint defense agree- nent with C, even though B and C have lot entered into a joint defense agree- nent. Such a situation can be danger- IUS in light of the waiver rules relating o the attorney-client privilege and the vork product doctrine. It is also important to have termina-

ion provisions in the agreement. What lappens if, six months into the agree-

I I V O I C E FOR THE DEFENSE

therein may be used for any other purposewithout the written consent of all counsel who are parties to this agreement and their respective clients. No 'defense materialsalsals may be taken out of counsel's custody.

5. Counsel and clients agree that the existence of this JOINT DEFENSE AGREEMENT and its contents are "defense materfals" within the meaning of this agreement. Thus, the existence and contents of this JOINT DEFENSE AGREEMENT shaU be kept conBdential and protected by the terms and conditions of the JOINT DEFENSE AGREE- MENT itself, except as othernrise provided below.

6, If another personor entityrequests or demands, by subpoena or othenvise, any "defense materials," counsel for the party receiving the request or de- mand for the "defense materials" will no* the party or parties with rights in said materials, and their counsel, immediately. With respecttodocumentary "defense materials," the person or entlty seeking such materials -will be informed that they are the property of another party (whose identity shall not he disclosed, except as provided for below). All lawful steps will be taken to permit the assertion of all applicable rights with respect to said "defense materials.'' No "defense materlah" shaU be tendered to any person or entity not a party to this agreement except as follow8: (1) with the consent of aU parties to this agreement; (2) after the issuance of a lawful order of a court of competent jurisdiction; or (3) to a court of competent jurisdiction during an ex parte, in chambers submission to demonstrate the existence of the joint defense privilege. The identity of the parties to this agreement shall not be disclosed to any person or entity not a party to thisagreementexceptasfoUows: (1) with the consent of all parties to this agreement; (2) after the issuance of a lawful order of a court of competent jurisdiction; or(3) to a court of competent jurisdiction during an ex parte, in chambers submission to demonstrate the existence OF the joint defense p~ivilege.

7. In the event that any counsel and/ orany clientwhois a party to thisJOINT DEFENSE AGREEMENT decides, for whatever rrasons, to terminate this JOINT DEFENSE AGREEMENT, notifi- cation of termination shaU be made upon all other parties immediately by

telephone or fax transmission and con- firmed by written letter to all other parties. In such event, the terms and conditions of this JOINT DEFENSE AGREEMENTshall continue to apply as to all materials and information shared prior to the date of termination and as otherwise provided below inparagraph 12.

8. Upon such termination, all exchange of information shall cease with the Client and Counsel who terminate this JOINT DEFENSE AGREEMENT, and any unopened or unexamined witten communications pursuant to this Agreement shall he returned to the sender without further copying, examination, oruse. Notwithstanding said termination, all obligations to sakguard the private and confidential nature of information pursuant to this Agreement shall continue for a period of twenty (20) years after the date of the notice or event causing termination. As a further confidentiality safeguard after termination, apartymay requestthe otherparty to this Agreement to return all copies of specified documents or tangible items which have been pmvided under this Agreement by or on behalf of the party making the request. Any such request shall be honored by return of all copies of the documents or items requested within ten (10) calendar days of the request. A certification shall also be provided that allphotographnegatives, verbatim notes, computer media, and any other sourcesfromwhich the documents or items could be constructed have beenreturned tothe party making the request (or, with regard tomagnetic media, have been reused).

9. The parties acknowledge that specific enforcement of this JOINT DEFENSE AGREEMENT is appropriate to protect the expectation of confidentiality guaranteed by this JOINT DE- FENSE AGREEMENT. Further, the parties agree that this JOIIV DEFENSE AGREEMENT confirms oral understanding and written agreements made previously by andbetween theattorneys for some of the specified Clients and this JOINTDEFENSEAGREEMENT shall be deemed to be effective as of the date of such oral understandings.

10. Each signatory to this JOINT DE- FENSEAGREEMwagreaimme'ately to advise allother Counsel to this JOINT DEFENSE AGREEMENT if the government indicates that his Client will be immunized, or if he intends to seek

immunity for the protection of his Cli- ent, or if his Client is given immunity. Each signatory to this JOINT DEFENSE AGREEMENT also agrees immediately toadvisc all otlw~obnsel lotllis JOIN? IXYENSE A(;i<I:I!MI!NI' if the Client enters intoan oral orw~ittenagreement of any kind with any branch of the federal or state government concerning the "Investigation." 11. Each Client understands and ac-

knowledges by his or her signature hereto that he or sheis representedonly by his or her own attorney in this mattes that while the attorneys representing the other Client members have a duty to preserve the coddences disclosed to thempunuantto thisJOINT DEPENSE AGREEMENT, they will not be acting as his or her attorney in this matter; and that the attorneys representing the other Client members will owe a duty of loyalty to their own respective Clients only. Each Client member further understands and ac- knowledges that the attorney members representing other Clientmembeq have the right, and may well have the obli- gation, to take actions against his or her own interest, including but not limited to, advising their own Client to coop erate with the government, generating and disclosing evidence or information to the government or other third parties (apart from the confi~dential disclosures pursuant to this JOINT DEFENSE AGREEMENT) and cross-examining other Client members at trial or other proceedings. While the precise nature of each possible conflict that may arise in the future cannot be identified at the present time, each Client member, after being informed of the general nature of the conflicts that might arise, also knowingly and intelligently wives any conflict of interest that may arise on account of this JOINT DEFENSE AGREEMENT, including specifically from an attorney member of this JOINT DEFENSE AGREEMENT, other than his or her o m attorney, examining him or her at trial or any other proceeding relatinx to the above-captioned investi- - gation.

12. No party to this JOINT DEFENSE AGREEMENT shall ever move to disqualify counsel for another party to this TQINT DEFENSE AGREEMENT on account of the defense materials shared by and between the parties to this

C m u l n d on page 3 7


I 1

DWI PRACTICE GEMS

A Little Scholarship and A Little Humor - Surviving in a World with DWI

Introduction Surviving in a world with D\W often

presents a challenge to counsel for the accused. Defense counsel can rise above it all with a little scholarship and a little humor. Of course, the scholarship is that which we owe our profession as well as our client. On the other hand, it is the humor we inject into our work that helps us keep our sanity so that we can continue to represent the citizen accused all the better. Accord- ingly, the following is an example of my scholarship and humor to share with you. The "scholarship" exa~nple below is food for thought as to how a DNA case from the Texas Court of Criminal Appeals has changed the intoxilyzer breath test predicate for adnlission of the results into evidence. Finally, the "humor" example is from a speech I gave at San Antonio's Advanced Critni- nal Law Institute last March. In this latterregard, my special thanks to Gerry Goldstein and Robert "Bullet" Price for letting me share some of our make believe war stories. a.) A Little Scholarship

CAUSE NO. 9200000 STATE OF TEXAS 5 IN COUNTY CRIMINAl VS. 5 xi- L4w JOSE CUERVO 5 TEQUll.ACOUNP(,TECG

MOTION TO SUPPRESS BREATH TEST RESULTS UNDER TEXAS RULES OF EVIDENCE 104Ca1

and Ccl. 401. 402.403. 602.702 and 705(d

TOTHE HONORABLE JUDGE OF SAID COURT:

COMES NOW, the Defendant in the above styled and numbered cause, by and through his undersigned counsel, andmoves this Court to ordera pre-tdal hearing, or in the alternative, a hearing out of the presence of the jury pursuant t o Rules 104(a) and (c), Tex.R.Critn.Ev., and thereafter, suppress all evidence I-elating to the intoxilyzer. In support thereof, the defendant would show

unto the Court the following: I.

The State has placed the defense on notice that it intends to use an intoxilyzer test results as part of its case in chief in this cause. Only atrvo-sanlpleintoxilyzer test was taken of the Defendant. The State has no adnlissible extrapolation facts to use to relate back the intoxilyzer test results to the tirne of vehicle operation. Cf: McCnSfetfy u. State, 748 S.\V.2d 489, 491 (Tex.App. [lst Dist.1 Houston, 1988).

11. Until KeNy u. State, 824 S.\V.Zd 568

(Tex.Crinl.App. 1992), the predicate for admission of intoxilyzer evidence was governed by Art. 67011-5, §3(b) Tex.Civ.St.Ann., which provided that analysis of a specimen of the person's breath, to be consideredvalid under the provisions of this section, must be perfanned according to rules of the Texas Department of Public Safety and by an individual possessing a valid certificate issued by the Texas Depart- ment of Public Safety for this purpose; and the Department of Public Safety Breath Test Regulation §19.7(c) which provided that in order to be valid for evidentiacy purposes, analyses nlust be performed by certfied individuals in accordance with provisions stated in these regulations; and, Harrell u. State, 725 S.W.2d 208 (Tex. Crini. App. 1986) (three prong test: (ilshowing of proper use of the shnulator; (ii) existence of periodic supervision over the machine

and operationby one who understands the scientific theory of the machine; and, (iii) proof ofthe result ofthe test by a witness or witnesses qualified to translate and interpret such result so as to eliminate hearsay).

111. This predicate is now changed to the

extent that Tex.R.Crim.Evitl. 702 now governs the admission of all expert testimony. CJ Kel(yv.State, s1lpraat572. ("...Rule 702 incorporates Rule 402 and 403 analyses.") KeNy u. State, s~cp,u at 572, n. 11. Rule 702 provides:

"If scientific, technical, or other spe- cialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Accordingly, Rules 104(a) and (c) and

702, prior to the adnlissihility of intoxilyzer evidence, a trial judge is now required to undertake a two step analysis. First, the judge is "to determine whether the testimony is suffi- ciently reliable and relevant to help the jury in reaching accurate results. 'Unreliable ... scientific evidence simply will not assist the [jury] to understand the evidence or accurately detennine a fact in issue; such evidence obfuscates rather thanleads to anintelligent evaluation of the facts.'" Kelly u. State, supra

Law Firm J. Gary Trichter, P.C., in Hous- ton, Texas. He is co-author of a two- volume treatise entitled Te.xns Dnmk Driuing Law and author of numerous journal articles. Garywas the chairperson for the Drunk Driving Committee for NACDL For 1990-92 and is a frequent speaker on many constitutional and criminal law topics at many state and national seminars.

V O I C E F O R T H E DEFENSE

at 572. Second, "[ilf the trial judge de- termines the proffered experttestimony is reliable (and thus probative and relevant), then she must next determine whether, on balance, that testimony q h t nevertheless be unhelpful to the trier of fact for other reasons. (emphasis in original). For example, even reliable and relevant expert testimony may be unhelpful and merely cumulati~, or zuould confuse or mislead the iuw, or w I d co&unw a n tnordindte k & n z oftrialrime. "(emphasis added). Kellyv. State, supra at 572.

IV. The burden of persuasion that

intoxilyzer evidence is relevant under Rules 403 and 702 is on the prosecution as the proponent of the evidence. Kelly v. State, supra at 573. This burden is measured by the "clear and convincing evidence" standard. Kellyu.Stute, supra at 573.

v. Absent exuapolation facts, the State

will fail in any attempt to show that its post driving intoxilyzer test is relevant. Indeed, absent extrapolation facts, the State is precluded as a matter of law from attempting to prove the .lo per se theory of intoxication See McCafeaty v State, 748 S.W.2d 489 (Tex.App. [lst DistJHouston, 1988). Seealso, Deesmond v. Superior Court, 779 P.2d 1261 (Ariz. 1989); State v. Ludwig, 434 N.\V.Zd 594 (S.D. 1989); Sme v. Geiser 576 A.2d 1283 (Com.App., 1990).

VI. The State's intoxilyzer test in this case

consists of the processing of two breath samples, approximately three minutes apait, which test was pedonned subsequent to driving after a substantial period of time had elapsed. Absent extrapolation facts, three possible correlations to the actualvehideoperation breath alcohol concentration of the defendant exists with none tending to make it, or another, "more probable or less probable" to the time of operation as is required to be "relevant evidence" underRule 401. CJM~nlgot~w~yv. Stale, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (opinion on rehearing).

VII. Specifically, a subsequent test can

show that the alcohol concentration of the driver was lower at the time of test than the time of dflving, or, the alcohol concentration was thesame at the time of the test and the time of driving, or, thealcohol concentration was higher at

the time of the test than the time of driving. CJ: Figure 7, from the Texas Breath Alcohol Testing Program Opera- tor Manual, Revised 2/90.

Mathematically speaking, the possi- bilityexists thatinanygiven post driving test there is as equala possibility ofguilt as there is of innocence because the test cannot be accurately related back to the time of driving. Garreft v. State, 682 S.W.2d 301,304 (Tex.Cr.App. 1984) ["If the evidencesupponsan inference other than guilt of the [defendant], then a finding of guilt beyond a reasonable doubt is not a rationalfidingl. As such, the measure of proof by a sole, subsequent breath test is not only less than proof beyond a reasonable doubt, but also, less than a preponderance of the evidence.

Moreover, under federal and state due process and suXiciency constitutional and statutory principles, such single, subsequent test results should be excluded from the jury's consideration as they, because of the three possible correlations with driving, would clearly tend to confuse and mislead the jury. See also, R. 403, Tex.R.Cr.Evid. (even probative evidence is to be precluded from admission where its value is out- weighed by risk of unfair prejudice). See also, R.403, Fed.R.Evid. Mofrtgm- ery v. State, 810 S.\V.Zd 372, 391 (Tex.Crim~App. 1991) (opinion on rehearing).

I:inally, as a dircct result of the State's inahilitv to show rclcv:mcc undcr Rule 403, th; opinion of the State's technical supervisor should be held inadmissible under Rule 705(c), Tex.R.Cr.Evid., because there is not a sufficient basis for the State's witness to give any opinion relevant to guilt.

VIII. Accordingly, under Rule 402, the

intoxilyzer evidence, given its irrel- evance, b inadmissible because the State cannot show that the intoxilyzer result is valid, is . there can be no showing that the defendant was in his elimination stage at the time of drwing to allow exmpolation so there can be no demonstration under Rule 401 as to what his alcohol concentration was at the time of the alleged offense. CJ: McCaffeQvSate, 748 S.W.2d 489,491 (Tex App. [lst Dist.1 Houston 1988).

IX. As perthe hol&nginKellyas to"proof

of reliability" predicate, "[ulnder Rule 104(a) and (c) and Rule 702, ailthreelof

the follozuinglmust bepmuen to the trid court, before [intoxilyzer evidence ... l may be admitted," Kelly v. Stale, supra at 573. The Kelly predicate is:

(a) the underlying scientific theory must he valid;

(b) the techniqueapplying thetheory must he valid; and

(c) the technique must have been properly applled on the occasion in question.

In the case at bar, the State cannot show that the underlyingscientifcheory the intoxilyzer result is allegedly pre- mised on is valid ((a) supra) or that the technique applying the theory is valid ((b) supra), or that the intoxilyzer tecl~nique was properly applied in this case ((c) supra), and therefore, the admission of intoxilyzer evidence in this case would be error. --

A. As to the "proof of reliability" predi-

cate (a); the State cannot extrapolate its testresult back to the time of driving. As to "proof of reliability'' predicate (b), the State does not have any witness who, as per Rule 602, has personal knowledge of the intoxilyzer computer program. In this latter regard, Rule 602, which is subject to the provisions of Rule 703 (relating to opinion testimony by expert witnesses), provides: "Ial witness may not testify to a matter unless evidence is introduced sufficient tosuppona finding that hc hnspersnnal knowledge of the mattcr." In this case, tl~c coun is asked to notc that llichard Baxter, ScientificDirectorfor the Breath Alcohol Testing Program of the Texas Department of Public Safety has stated:

As an end user of the Intmrilyzer 5000, neither1 noranyone else involved in the Texas Breath Alcohol Testing Program is in possession of, nor are we eligible to receive [...the computer program]. (Letter from Richard Baxter dated February 5,1991).

As to "proof of reliability" predicate (c), the State cannot show that the intoxilyzer technique was properly applied in this case because there are no extrapolation facts and thereisno State's witness who can provide testimony based upon personal knowledge of the intoxilyzefs computer program.

XI. Inasmuch as there are no admissible

extrapola~onfactsand/orapro~ecution witnesswho can testify to the Computer program underlying the intoxilyzer technique, under Rule 705(c), any ex-


pert witnesses opinion caned by the Stateought be inadmissible because the prosecution cannot establish sumcient underlying facts or data to render an opinion under "proof of reliability predicate prongs (a), (b), and (cl. See McCaffeetly and Kelly.

k!uEE WHEREEORE, PREMISES CONSID-

ERED, the Defendant prays that this Court hold a pre-trial and/or pre-admission hearing out of the presence of the jury, under Tex.R.Crim.Evid, 401, 402, 403, 602, 702 and 705(c), and suppress all intoxilyzerevidence unless the State can in good faith prove by clear and convincing evidence that its intmilyzer result and supporting testimony is relevant, and thatthe probative value outweighs its risk of prejudice in that it would not be cumulative, or would confuse or mislead the jury, or would consume an inordinate amount of trial time.

Respectfully submitted, J. GARY TRICEETER A Professional Corporation By: J. GARY TRICHTER SBN 20216500 4515 Yoakum Houston, Texas 77006 17133 524-1010 Fax: 524-1080 Attorney for Defendant, JOSE CUERVO

CERTIFICATE QF SERVICE I hereby certify that a true and correct

copy of the above and foregoing Mo- tion has been delivered to the Assistant District Attorney prosecuting this case on this day of March, 1993.

J. GARY TRICHTEE

CAUSE NO. 9200000 SLATE OF TEWS 5 M COUNn CRIMINAL VS. S AT LAW JOSE CUBRVO $ TEQUIWLCOUNI*(,TWAS

oRn H R On this day came on to be heard

Defendant's hiotion to Suppress Breath Test Result Under Texas Rules of Evi- dence lO4(a) and(c), 4Ol,4O2,403,6O2, 702 and 705(c), and after considering the same it is hereby:

GRANTED DENIED. SIGNED and ENTERED this -day of -,1993.

JUDGE PRESIDING

b.> A Little Humor MY GREATEST NIGHTMARE

One does not know when too much

Dm, federal criminal workand alcohol wiU come back to haunt you. It h a p pened to me and it might happen to you, My nightmare last night took me back to a time when I was just 16 years ofage cruising thestreets of SanAntonio with Robert "Bullet" Price and Gerry Goldstein. Of course, the older guys were a bad influence on me and had me quire intoxicatedwithtequila shotswith beer chasers.

Incredibly, flashingblueand redlights lit up the back of my car as: if aliens had landed on the back bumper. It was the cops and I knew I was in for trouble. Having failed all the field sobriety tests, I found myself in the intoxillzer mom where OEAcers Jose Cuervo and Jack Daniels videotaped the process.

Not knowing any better, when asked if I had been drinking and what I had been drinking, I admitted to drinking satherthan claiming the fifth, I admitted to drinking the fifth. Yes, I blew into the machine too and I watched it register a .IS.

The nightmare got worse as the .15 actually culminated in my proposed offense level under the federal sen- tencingguidelines. Beingafmt offender [ was looking at 18-24 months.

The bad dream flashed to sentencing before Judge Johnny Walker who had my PSI before him. The repon had been prepared by Guideline OfflcerMadd of the Probation Department. Of course, the Judge told me that I needed to get to a level 6 to be eligible for probation. Looking down from on high, he sald I was to get a 2 level reduction as a 'minor participant'' because of my age bringing me to a level 13.

Walker read further stating I was also ping to get a 2 level reduction to a level 11 for acceptance of responsibility in that I confessed everything in the video roomand took the test. Indeed, he even gave me afutther 1 level reduction tal0 For early acceptance in thatIhadcmtered 3efore the government needed to get sady for trial.

I thought I was doomed to spend 6- 12 months in jail until the Prosecutor, Buddy Weiser, spoke up saying that in ny stupor I had provided substantial mistance to the government and that le was moving for a 5K1 reduction. Specifically, because I turned in Bullet md Goldstein, the government moving o reduce me m a level 6 and asked that I receive a probated sentence.

Fortunately, the intensity of thenight-

mare woke me up before I could learn what happened on my appeal. Never- theless, the way the federal system works today, I, as a defendant, wwld have lost anyhow. So what did I learn7 It's better to be the designated passen- ger[.

Joint Defense Agreements Conrinued frompszge 34

JOINT DEFENSE AGREEMENT in any matter arising out of the "Investiga- tion," as that termis defhed above. No party to this JOINT DEFENSE AGREE- MENT shall ever claim that the existence of this JOINT DEFENSE AGREE- MENT or the fact that defense fflate- rialsmay have beenshared pursuant to this JOINT DEPENSE AGREEMENT has createda conflict ofinterest inreference to any matter arising out of the "Inves- tigation," as that term is defined above. These provisions control regardless of whether a party has terminated his agreement to this JOINT DEFENSE AGREEMENT.

AGREED TO BY THE FOLLOWING COUNSEL ON BEHALF OF THEIR CLIENTS AND THE FOLLOWNG CLI- ENTS PERS0NALL.Y:

Party #1 DATE:

Counsel for Party #2

Party #2 DATE:

H. SAMPLE JOINT DEFENSE AGREE- MENT RBCEIPT AND LOG

As alluded to above, I feel it is impera- tive to note the receipt of materials and log in the information. The following are a suggested receipt and log to assist you in maintaining track of the information you receive. Indeed, I am a firm advocate of some type of system to maintain track of what you are sharing pursuant to your oral or written joint defense agreement. Use whatworks for you, but do use some systerh. Danger lurks out there if you do not.

SAMPlEaaCEIPT OF "DEFENSE MATERIALS"

I, . a signatory to that certain JOINT DEPENSE AGREEMENT dated , enterdintoby andkhveen myself, a s c o u n s e l i o r , and David l%otsford, as

V O I C E FOR THE D E F E N S E

latest ploy of the IRS does not only affect criminal defense attorneys - it applies to dl attorneys in a myriad of transactions. Both the presenl law and its application through draconian IRS sanctions have thevery profound effect of destroying the attorney-client privilege in a given case.

Respectfully, Knox Jones,President, Hidalgo

CriminalDefenseIawyers Association1

Indigent Continued from page 26 of years assessed.

I suggest that you explain his options,

as follows:

1. He may accept the plea barga offer, and if so, you can guarantee tl outcome; or,

2. He can reject the plea barga offer, and proceed to trial before a ju to decide guilt or innocence, and if I desires punishment as well. Admoni him as to the risks involved, if any, as extended sentences or stacking, etc; (

3. He can reject the plea barga offer, and proceed to trial before judge, for guilt, innocence and pu ishment without a plea bargai

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whereupon the judge may assess punishment anywhere within the range for the offense.

Explain to the client that you cannot make the decision for him, that the decision is one he must make. Fur- t h e m e , explain to him that you can advise him as to the consequences of his decision, but that you are not in a position to say that he should or should not take any one of the three options. If he presses you for a recommendation, then you can state that your personal opinion would be to accept whichever of the options you feel is in his best interest under the circumstances of the case AND his pfevious record.

Whether your client decides to accept the plea bargain or reject same, I would suggest that you confirmhis decision by letter after the interview setting Forth in detail the exact terms of the plea bargain, include fines, costs, restitution, etc (see Appendix No. 8).

If your client decides to accept the plea bargain, get in touch with the Court, orcourt Administrator assoonas possible and set up a date for the plea. Then notify your client by letter of the date and time of the plea, advising him that you will meet with him prior to the plea itself and go over all of the plea documents (see Appendix No. 9).

Prior to the plea date, I always prepare a letter to the Court advising them that I have kept a record of the time expended on the case, and give my total amount of time expendedand any expenses through the plea date itself. I also include an itemization of my time expended, so the Court can see the actual time expended by me in my appointment. It is amazing how much more I have been able to get paid, by pst spending time to itemize and notify the Courtof my time and expenses. The Court has to have some sort of justification in order to pay you more than the minimum allowed for a plea, and by itemizing same, it relieves the Court From any question by the Commission- $16 or authorities making the payment. Unlessit isafederal case, Inever charge an hourly fee, I only give the Court a listing of time and expenses with totals :see Appendix No. 10). W

'Bis article will be continued in the next issue of Voice.

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