CONTENTS

4:: Upcoming ClE Event Schedule

5:: AWordfrom our President
by JoAnne Musick
6:: Winning Warriors
9:: HCClANews Roundup
11 :: OWl Blood Defense
PartI: Initial ClientContactand Discovery
by Kelly W Case
15 :: Have You Heard?
You Maybe EligibleforReimbursementbytheCriminalJustice
ActforExpenses Incurredin DefendingMalpracticeActions.
by Yolanda Coroy
16 :: Your Honor, MayITake the Dog on Voir Dire?
EvidentiaryandConstitutional Objectionsto Dog-ScentLineups
by Barbara Drumheller
21 :: Recouping Costs ofExecuting aBail Bond
When theMotionto Surrenderthe Principal is
NotBasedon ReasonableCause
by John Burns
22 :: Variances Are Not Departures byAnother Name
by Marjorie A. Meyers
24:: You, Too, Can Win aParole Revocation Hearing
(and LookGood Doing It)
by Sunshine L. Swallers
26 :: HCClAAddresses NewOWl Diversion Program
ALettertotheJudges& PressRelease
by JoAnne Musick
28:: HCClACo-Sponsors CommunityService Project
Teen DatingViolenceAwareness
by Wendy Miller
29 :: The Death ofOral Argument
by Patrick F McCann
31 :: Investigative Corner:
Digital DNA
by Jim Willis
THE DEFENDER CD
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Distribution 1000 copies per issue. For articles and
other editorial contributions - contact Kathryn Kase at
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832-448-1148 or earl@musicklawoffice.com.
0....
stakeholder[steyk-hohl..der]
awordfromour
agroupthathasaninvestment,
share,orinterestinsomething,
as abusinessorindustry
Clearlythedefensebaris astakeholderinthe criminaljustice
system;wehavean investmentandinterestthatwillnotbe
ignored. Yetthecourtsanddistrictattorneycontinueto denyfull
participationofallstakeholdersas theyseekto excludeourbar
fromparticipation. Read theTheJusticeManagementInstitute's
(1MI) preliminaryreportonourHarrisCountycriminaljustice
systemandyouwillseethateventheyrecognizeus as necessary
stakeholdersandfurtherrecommendthatweholdaseatona
criminaljusticecouncil.
OnJuly 14,2009,ourelectedofficialsvoted"inaccordwiththe
reportofrecommendationsbythe1MI"and createdthe Harris
CountyCriminalJusticeCoordinatingCouncilandthe Officeof
CriminalJusticeCoordination;however, they failedto includeall
stakeholdersastheyexcludedthedefensebarfrom the council.
TheJMI studyclearlystatesthecouncilshouldinclude thecourts,
theDistrictClerk'soffice, theDistrictAttorney'Soffice, thedefense
bar, the Sheriffsoffice,andtheCountyAttorney'soffice.
Perhapsourelectedofficialswouldlovenothingmorethan
businessas usual, ignoringthedefensebar. Perhapstheydidn't
believethevoterswhentheysaid,''NoMoreJails." Perhapsthey
will find themselvesoutofofficein thefuture. Onethingis clear:
taxpayersaretiredofbusinessas usual. No longerdoesa"tough
oncrime"campaigncarrythedayto re-election. Thevotersand
taxpayerswantchange. And,inorderto effectchange,business
asusual mustchange. Thedefensebarcanno longerbeignored
whenitcomestodevelopingnew ideasandnewsolutions. Asa
legitimatestakeholder,wemustparticipateandbeheard.
Yet insteadwehear,"Iputonmydefenseattorneyhatwhen
lookingatthis issue"or"whenIwasadefenselawyer...". These
statementsareakinto mesaying,"WhenIwasaprosecutor... ".
It justdoesn'tworkthatway. Onecannotstepoutoftheirown
roleand playanother. That'saconflictofinterest. Asmuchas
onestakeholdermaywantto thinktheycanplaytworolesatthe
sametime, it isvirtuallyimpossibleforanyprosecutororjudge
to simplyputon their"defenseattorneyhat"andcomeupwith
thedefenseperspective. It'sgreatto haveinsightbasedonpast
experiences,butuntil issuesareopenlyandhonestlydiscussed
withall stakeholders,thedecisionsmadeareshort-sided.
TakeforexampletherecentlycreatedDWIdiversionprogram.
Twostakeholders,theD.A. andthejudiciary,decidedhow
caseswouldbehandledwhenenteringtheprogramand how
punishmenthearingswouldproceed. Onemajorproblem: it's
deferredadjudication(oratleastpotentially). UndertheD.A.'s
newprogram,apleais enteredandajuryis waived,community
serviceis undertaken,andintheeventofdefaultpunishmentis

JaAnM rf!U6ick
assessedbythecourtwithoutajury. . .soundslikedeferredtome.
Theproblemis thepointbetweenpleaandadjudication,i.e. the
deferral,whichis notpermissibleinDWIcases. Callitanything
youlike,butifitlooks likeaduck,walks likeaduck,andquacks
likeaduck,then itmustbeaduck(DeferredUnderCursed
Karma).
Withthelegislatureclearlystatingdeferredisnotanoptionin
DWIcasesandthelocalD.A.losingordismissinga majority
oftheDWIcasessetfortrial,let'scomeupwitha wayto
circumventthelawandotTerdeferredanyway! Forifwe
offeredatrue diversion, and then thedefendantfailed to meethis
termsofdiversion,we mighthaveto try thecaseand loseanyway.
Now,don'tgetmewrong,diversioncould beawonderful tool
for somedefendantsifitreallywereadiversion. But,diversion,
in itstruestsense,contemplateseitherneverenteringthe court
system(i.e. pre-charging)orremovalfrom thecourtproceeding
(i.e. pre-trial)withthepossibilityofreinstatingtheprosecutionor
proceedingsshouldthediversionfail. Atruediversiondoesnot
requireapleaofguilty, awaiveroftrial, areduced burdenofproof
upon theState,norapre-determinedand agreeduponsentence.
Underthecurrentprogram,wedon'treinstatetheproceedings
and continuethecase; wemovestraighttopunishmentwith the
defendant havingwaivedall his rights so the Statecannotloseat
trial.
Iknow...theysayit'snotcoercivebecauseyoucantakeitorleave
it, andyoucantumitdown,optingfor atrialorpleawithoutan
agreedrecommendation. Butwhathappens3yearsfrom now
when thefirstcourtrulesexpunctionis notavailablebecause
this reallywasadeferred? Howmanyhundredsorthousandsof
defendantswouldhavealreadytakenthediversionbelievingit
wouldbeexpunged; onlyto find outit wasn'tsuchagreatbargain
afterall?
Thisis butoneexampleas to whyallstakeholdersshould
participatein thediscussion;vettingthe issueleadstothebest
possibleresults. Includingallstakeholdershelpsthinkoutside
ofthebox. Withjailovercrowding,docketmanagement,and
indigentdefensebeingkeyissuesontheforefrontofHarris
County'scriminaljusticesystemproblems,nowisthetimefor
all stakeholdersto cometogetherandfind solutions. Now is the
timeforthedefensebar,asthelargeststakeholderrepresenting
thelargestsegmentofthesystem,toparticipate. Whywouldn't
theD.A. wantparticipation? Whywouldn'tthecourts? Perhaps
theyreallydothinkbusinessas usual willwinelections. Perhaps
theydidn'tlistentothevoterslastyear!
THE DEFENDER CD
The client was indicted for Murder as a habitual felon, but
TERRY GAISER obtained a complete and total acquittal
in the 230th District Court after mortally wounding the
State's key witness on cross.
........................................
Proving conclusively that he was right when he said
the case should not have been tried, JONATHAN
GLUCKMAN won a resounding Not Guilty verdict
on behalf of a client charged with Murder in the 232nd
District Court.
........................................
We interrupt these tales of legal glory with a harrowing
story with a happy ending brought about by a defense
lawyer. ROBB FICKMAN was returning from Lake
Charles on 1-10 when he saw a car upside down on an exit
ramp. Stopping, Robb was told by a frantic man that a girl
was caught in the wreckage. Robb found her alive, but
suspended upside down in the seatbelt webbing. She also
was hysterical. Robb calmed her, slid into the wreckage
on his back and undid the seatbelt, allowing her to fall into
his arms. He later banded her off to paramedics - but not
before admonishing her boyfriend that the next time he
hears someone bad-mouthing lawyers, he should tell them
it was a lawyer who got his girlfriend out of the wreck.
........................................
Taking Winston Churchill's famous admonition to "never
give up" to heart, RICHARD KUNIANSKY won a
Rule 29 acquittal on all charges from U.S. District Judge
Siill Lake III after (you read that right: after) the jury had
convicted Richard's client of laundering $1. 7 million. And,
Robb Fickman reports, Judge Lake entered fmdings that
greatly diminish the government's chance of prevailing on
appeal. What makes the win even more amazing is that
Richard's client was the only one of 15 original defendants
in the case to be acquitted. The rest took pleas.
CD THE DEFEIIDER
KATHRYN KASE and JARED TYLER convinced the
Court of Criminal Appeals to grant a new punishment trial for
a Capital Murder client out of Bexar County. Jim Marcus had
assisted at the hearing on the state writ of habeas corpus and
Mia de Saint Victor took the lead in drafting the post-hearing
briefing that resulted in the trial judge's recommendation that
a new punishment trial be granted.
........................................
STEVE SHELLIST won a No Bill for a Continental Airlines
mechanic charged with shooting an unarmed 16-year-old.
As Steve related in his grand jury packet, the mechanic saw
three shadowy figures climbing the fence into his widowed
neighbor's backyard and believed them to be wanted for
shooting up a neighborhood party earlier in the day. When the
three figures refused to stop climbing the fence, the mechanic
fired, hitting one in the ankle.
........................................
CYNTHIA HENLEY and Second Chair Program attorney
MATT DARBY obtained a dismissal of sexual abuse charges
after first obtaining a hung jury in a hard-fought trial. Cynthia
credits investigator Audrey Rife for getting the complaining
witness on tape telling a vastly different story than she told to
investigators, and Matt for his hard work.
........................................
ROBB FICKMAN and his Second Chair, ROB TUTHILL,
won dismissal of a Possession of Marijuana charge on the day
the case set for trial. The client was a social worker charged
with possession after HISD cops claimed to find a .01 ounce
bag of weed in his belongings. Robb said, "Small case; big
for client."
........................................
Not one to waste time, PATTY SEDITA got a I5-minute Not
Guilty on a kidnapping case in the I82nd District Court. We
hear her excellent close compelled the jury's quick decision.
........................................
Love - and dedicated lawyering - can conquer all. The
parolee-client was up for revocation because he tested
positive for cocaine. Unknown to him, his much-younger
wife had slipped him a "love potion" purchased from a
woman in a beauty shop. At the parole revocation hearing,
SUNSIDNE SWALLERS put the wife on to testify that
they couldn't afford Viagra and that she had given the
unknown substance to her husband without his knowledge.
The result: continued supervision.
........................................
The former operators of the Hart Galleries - who received
17-year prison terms after a pre-sentence investigation - will
get a new trial due to ROBERT SCARDINO. First, Robert
got the original trial judge (Randy Roll) recused. Then, he
won the new trial after pleading a variety of grounds, including
that the grand jury foreman and Judge RoB had had contlicts
of interest.
....................................... .
MATT SKlLLERN secured a Not Guilty from ajury in
Montgomery County Court-at-Law No.4 in a DWI case. The
acquittal came after Matt showed the arresting officer to be very
evaSIve.
Effectively negotiating the transition from prosecutor to defense
lawyer, MURRAY NEWMAN won a motion to adjudicate on
behalf of a client who was on deferred for aggravated robbery
and picked up a new aggravated robbery charge. At the hearing,
Murray's cross-examination revealed the complainant's story
was confabulated and visiting Judge Don Strickland found the
new allegations to be "not true." The State wisely dismissed the
charges thereafter.
........................................
The officer claimed he saw the client make a furtive gesture, which
led to a search, which led to the discovery of a crack pipe hidden
in foam rubber underneath the dashboard and a Possession of a
Controlled Substance charge. But DANNY EASTERLING won
a Motion for an Instructed Verdict after convincing visiting Judge
Lisa Burkhalter that the search was pretextural. Which was of great
relief to the client, who had six felony priors for Possession of a
Controlled Substance, was looking at 2 to 10 years, and had turned
down a plea offer of2 years.
........................................
Citing current federal case law (instead of that outdated
stuff cited by the State), DANALYNN RECER
convinced the Court of Criminal Appeals to dismiss the
State's petition for discretionary review in a non-death
Capital Murder case. The intermediate appellate court
had wanted (on then-defense lawyer Shawna Reagin's
brief) to remand to the trial court for further proceedings
in light of Batson v. Kentucky, 476 U.S. 79 (1986). And,
now, those proceedings will proceed.
........................................
Saving the client from a sentence between 25 years and life, DALE
PASCHALL won an acquittal in a sex case in Liberty County - and
from ajury who deliberated only 20 minutes.
........................................
DANNY EASTERLING and KELLY CASE persuaded the
Galveston County District Attorney to offer a L WOP plea in a case
where the capital murder had been caught on videotape. With the
assistance of mitigation specialist Shelly Schade, Danny and Kelly
CHERYL IRVIN won suppression from Judge Marc Carter in the
228th District Court on a Possession of Marijuana case. And in so
doing, Equator Turner reports, Cheryl made the State extremely
unhappy.
........................................
Legal beagles LISA BENGE and GILBERT GARCIA won
suppression in the 221 st District Court in a drug case based on the
"work" of a canine cop in Montgomery County. Relying partially
on work by Mary Samaan and Sarah Wood in a prior case, Lisa
and Gilbert showed the search warrant to be deficient. Wisely, the
State dismissed the case and decided not to appeal. This was Lisa's
third victory against the Special Investigation Unit of Montgomery
County
......................... ...............
The moral to this next set of victories is: if you want to win
your case, enroll in the Second Chair Program. GRANT
SCHEINER and Second Chair Program attorney PAULA
SILVA won a verdict of Not Gu iItyby Reason of Insani ty
in an "Attempt to Disann a Peace Officer" case in the l76th
District Court. Grant reports that Paula "did a phenomenal
job the entire way."
........................................
CYNTHIA HENLEY won two grand jury no-bills in one month's
time. The second was on behalf of a beleaguered client was charged
with felony sexual assault by his girlfriend after a sexual mishap.
........................................
TYLER FLOOD won a DWI case that kept everyone
guessing. First, Judge Ross granted the motion to suppress
the breath test result due to extrapolation issues, then Judge
Ross reversed his decision, and then Tyler persuaded Judge
Ross to grant suppression again. And then, in the middle of
trial, the prosecution finally came to its senses and dismissed
the
........................................
case.
TOM MORAN reports that "a wise Latina judge" (the Hon.
Vanessa Velasquez) found probable cause lacking and granted
a pretrial motion to suppress in his Criminal Possession of a
persuaded the client to accept. Controlled Substance case, thus causing the State to dismiss its
prosecution.
Winning Warriors
The client admitted to drinking multiple vodka tonics and having
come directly from a bar, and leaned against the wall during
interrogation at the police station. And it didn't help that her
husband called the cop a "#&@! rookie." Still, NATHANIEL
TARLOW got the cops to agree that the client had not lost her
mental or physical faculties and then obtained a directed verdict in
Harris County Criminal-Court-of-Law No.1 O.
............................ .. ... ...... .
assisted by EQUATOR TURNER, successfully
obtaIned a mlstnal for an AssaultlFamily Violence client in Harris
Cou.nty Criminal Court-.at-Law No.1 after convincing the judge that
the JUry had been left with false impressions due to the State's use of
what should have been inadmissible evidence.
...... ... ... ................ .......... . .
Three Indecency with a Child charges were dismissed in Brazoria
County because AMANDA DOWNING proved to the court that her
client's speedy trial rights had been violated. Earl Musick reports
that the m?tion ,,:as "extremely well prepared" and was based in part
on an earlier motton filed by Sean BuckJey in a murder case.
...................................... . .
The client was passed out behind the wheel, with keys in the ignition
and the engine running. And did we mention that the client also
the field sobriety tests and later turned down a plea to Reckless
JED SILVERMAN pulled out a ''Not Guilty"
illa DWI case 10 Fort Bend County Criminal Court-at-Law No.2.
.... . . . .. ... . . .. ........... .... . ... . . . ...
A wife initially detained for interfering with her husband's arrest
and later charged with Unlawful Carrying of a Weapon was free to
go after DAN GERSON won a motion to suppress and a directed
verdict of Not Guilty in Harris County Criminal Court-at-Law
No.9.
In th.e face of a judicial demand that his client waive her right to a
contInuance and to pretrial diversion, RICK OLIVER obtained a
"Not Guilty" in Harris County Criminal Court-at-Law No.9 after,
Doug Murphy reports, he "tore the cop up on cross and whipped
them good."
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CD THE DEFENDER
The client, who had no priors whatsoever, was charged with
two cases of Indecency with a Child and the proof included one
videotaped confession, but DORIAN COTLAR engaged in
a contentious, week-long trial in the 122nd District Court and
ultimately secured an acquittal on one charge and a hung jury
on the other. Dorian credits the efforts of his associate Andrew
Herreth, and law clerks Alexis Krafft and Justin Harris:
....... .......... ....... .......... ..... .
Proving that a diligent investigation yields good results, JAMES
ALSTON won a dismissal in a DWIlbreath-test-refusal case after
showing that the arresting officer advised the client on the ride to
the station not to take the test. James reviewed the refusal tape
and, sure enough, there was the cop saying, "I told you that I tell
my family members not to take the tests if they are buzzed."
..... .................................. .
On her solo writ of habeas corpus - and one she took on pro
bono publico - CARMEN ROE obtained relief in the 351st District
Court on behalf of a client with an illegal sentence.
..... .......................... .... .... .
It was, as David Suhler described it, ROB TUTHILL's "first
real-w?rld trial" and it also was a non-sting prostitution case, which
Rob tned to a hung jury.
....... ..... ....... ... ................ . .
There were bad facts, a week-long trial and a charge of Aggravated
Assault with a Deadly Weapon. The State sought 35 years, but
CLAIRE CONNORS won 8 years of probation for her client.
...... ................................. .
jury had been seated and the client faced between 25 years and
lIfe, but ELIJUE DOZIER won suppression from Judge Ruben
Guerrero in a Possession of Controlled Substance case and the State
dismissed.
... .....................................
CHRISTOPHER CARLSON and JOHN FLOYD obtained a
30-minute "Not Guilty" against Austin County District Attorney
Travis Koene in a case where deadly conduct was alleged.
........................................
TOM ZAKES convinced a Friendswood prosecutor to dismiss a
no-driver's-license and no-insurance case for lack of probable cause
after Tom showed that the cop pulled the client over because he was
going around the neighborhood asking people if he could cut their
grass.
.... .............................. ......
Proving to be an incredibly quick study, BILLY SKINNER got the
file fr0t? Jed Silverman and, 30 minutes later, argued his first ALR
appealm Harris County Criminal Court-at-Law No.2 - and won a
remand.
........................................
The State Bar of Texas honored WENDY MILLER with
the Judge Sam Williams Leadership Award at its Annual
Meeting in June. Wendy was recognized for improving
the public's understanding of the legal system - which she
perfonned on of HCCLA and the Houston Young
Lawyers AssocIatIOn. The State Bar advises that the
award presented to one lawyer annually exemplifying
outstandmg leadership and service to the State Bar of
Texas and their local bar associations to best serve the
legal profession and the public." Which we think is an
apt description of Wendy's volunteer work.
HCCLA BOWlS OVEB THE COMPETITIOIJ
FOB BIG BBOTHERS BIG SISTERS
OF GBEATEB HOUSTOIJ
by Wendy Miller
Team HCClA won the 2009 Houston Lawyers' Bowl at the Bowl for Kids' Sake lundraiser on
June 6at Palace Lanes - and raised $900 for Big Brothers Big Sisters of Greater Houston.
The win marked the first time that HCClA finished first among lawyer teams at the annual
event. It was the Association's third year as aparticipant in the Bowl for Kids' Sake event.
Team HeClA included Steve Halpert, Darrell Jordan, Sunshine Swaliers, and Nicole
Caldwell. JoAnne Musick and Monica Hwang served as supporters and fans, and I served
as acheerleader.
Bowl for Kids' Sake is one of the biggest annual fundraisers for Big Brothers Big Sisters of
Greater Houston. The non-profit agency matches adult volunteer mentors with local children
to give them ahelping hand growing up.
Money raised by HCClA supports Big Brothers Big Sisters' Amachi Texas Mentor Program
for local at-risk children with one or more incarcerated parents or guardians. HCClA has
been an active supporter of the Amachi Texas Mentor Program since 2007 and Association
members also participate as adult mentor volunteers at the events.
Send $100 Payable to: HCCLA
PO Box 924523
Houston, TX 77292-4523
& Receive 10 Advance Admission Tickets!
Contact Sfe-phevt f o u ~ ~ t o v t
for more information!
713.802.1900 or tstonel@swbell.net
THE DEFENDER CD
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Part I, Initial Oient Contact and Discovery
by Kelly w.
Before y{)U go any further,
o must be prepared to defend a
DWI as based on a blood-draw
At minimum, your library should contain:
Phlebotomy Essentials, Fourth Edition by Ruth E.
McCall and Cathee M. Tankersley, published by Walters
Kluwer Publishing in 2008, ISBN 978-0-7817-6138-3.
Procedures for the Collection of Diagnostic Blood
Specimens by Venipuncture; Approved Standard - Sixth
Edition H3-A6, Vol. 27 No. 26 (replaces H3-A5,'Vol. 23
No. 32), published by Clinical and Laboratory Standards
Institute in 2007, ISBN 1-56238-650-6.
Blood Alcohol Testing in the Clinical Laboratory;
Approved Guideline, TIDM6-A, Vol. 17 No. 14
Replaces TIDM6-P, Vol. 8 No. 10, published by
Clinical and Laboratory Standards Institute in 1997,
ISBN 1-56238-333-7.
Garriott's Medicolegal Aspects of Alcohol, Fifth Edition
by James C. Garriott and Erik H. Aquayo, published by
Lawyer's & Judges Publishing Company, Inc., in Nov.
2008, ISBN-13 9781933264585.
Drunk Driving Defense, Sixth Edition by Lawrence
Taylo't' and Steve Oberman, published by Aspen
Publ hers, ISBN 9780735554290.
Additionally, you should have your jail's standard
operating procedures for blood-born pathogen
contamination.
1
THE BEFO..
Part I, Initial Oient Contact and Discovery
1]
In 2004, Montgomery County was one of Texas' first counties
to have a procedure in place for forced blood draws. That year,
the county actually had a judge in the jail during the July 4th
holiday to sign warrants authorizing the forced taking of blood
from citizens suspected ofDWI. Since then, the county has set
up a system in which the "on-call" judge is faxed an affidavit,
and the warrant is faxed back to the jail and authorizes,
according to prosecutors, the forced blood-draw from drivers
suspected of intoxication.
2
Last year, DPS labs across Texas hired more than 20 new
analysts to handle the blood testing that has been submitted on
these "blood DWI" cases. DPS used to take almost a year to get
the results from a blood test, but has improved its turnaround
time to less than a month in alcohol-detection cases. Cases
involving drugs are exclusively handled by three analysts out of
the DPS-Austin lab and still take considerable time.
At the same time, the CMI, manufacturer of the Intoxilyzer
5000, has come under serious fire in several states for failing
to comply with court orders to provide its source code, and
also for inaccurate and unreliable results. Fines in the millions
of dollars are pending and continuing to accrue against CMI
in Florida. In Texas, we have very little discovery regarding
the machine and its processing of data. In this regard, our
hands have been tied by the Texas Legislature. Unless there is
a glaring error, your client will be prosecuted and the results
of the breath test will be admitted. When I first started in the
District Attorney's office in Galveston County in 1991, we
reduced the charges when breath tests were below .15 because
we all knew the machine yielded inexact resu Its. It still does.
The Intoxilyzer 5000 likely wilt be obsolete in three to five
years. By that time, every county in Texas will use forced
blood-draws in the prosecution of DWI cases. Interestingly,
this coincides with the Mayan calendar and its prediction that
the world would end on December 21, 2012. Could those
ancients have been on to something?
why will the machine be obsolete in 3-5 years?
Perception. Think about the first time you ever dealt with
a blood case or a client called about hiring you on a blood
DWI case. Your fIrst thought may have been like mine:
"Oh boy, they really got this guy. Blood is a lock. No way
to beat it."
The basic science behind the Intoxilyzer and the
assumptions it makes are flawed. We are learning just how
flawed thanks to our brother and sister defense attorneys
in Florida, Minnesota and Arizona, where the source code
Issue rages on.
This paper is designed as a primer for the defense of a DWI
case involving a forced blood-draw. It will not teach you how
to defend these cases, but it will give you the basics that you
must cover in every case involving a forced blood-draw. As
always, I am available to assist any defense attorney in need
of advice due to the overwhelming amount of infonnation that
these cases generate. Hopefully, at the conclusion of the series
of articles on this subject, you will cheer when a client calls you
with a blood case because you know you will be able to engage
in meaningful discovery and have the chance to successfully
defend your client.
I have never had a client from the jail, nor have I been able
to obtain an independent sample for testing blood within a
reasonable time of my client's arrest. Even so, I make sure that
I have a nurse on standby at all times in case we get that call
from the jail. You should have someone on standby who can
be called upon to quickly meet you at the jail in order to take
an independent sample of blood from your client. It's rare that
any client is prepared with your name and contact infonnation
in advance of their arrest, so you have to be prepared to kick
into gear quickly after you receive the call from a prospective
client.
During your initial phone conversation with all clients, you will
need to ask whether this is a blood case. If so, then you must set
the appointment with your client as soon as possible. I mean
that. You must see the client as soon as you can humanly get
there, even if it means working late or rising early. If more than
two days have passed, there is a good chance that evidence will
be lost that could have been very beneficial to your client.
Upon being hired, draft your ALR request and a Motion to
Preserve Blood Draw Evidence and Inspection. Fax a copy of
the Motion to Preserve to the Captain in charge of the Jail, the
Sheriff, and to the Custodian of Records for the Jail for your
county. Yes, send it to all of them. Jails have been making
video recordings of the execution of the search warrant (that
is, the blood-draw), but they will only keep it, at most, for a
few weeks. You must make the request to preserve this video
and other evidence because the prosecution will not and you
will lose the evidence.
By doing this, you will be setting up a spoliation argument
when, and if, the jail throws your motion in the trash and fails
to properly preserve this evidence, denying your client the right
to a meaningful cross examination, due process, and thereby
making you ineffective in the representation of your client.
After your Motion to Preserve has been sent to the jail, try to
get the motion set for a hearing and obtain a signed preservation
order as soon as possible. Send the jail personnel the signed
copy, also.
THE DEFENDER
At the initial client meeting, have your client execute a HIPAA
release. My clients sign a blank one in this is kept in the client's
file. This allows me to copy it so that if I need more than one,
I do not have to bother the client again for a signature. Explain
this to the client in your initial meeting and obtain their consent.
Do this whether your client's blood was taken at a hospital,
or at the jail. This release should also contain language for all
personnel, as well as for physicians, to discuss your client's case
with you. This will become important later. Be sure to obtain
your client's prescription records from their pharmacy if drugs
are alleged as the intoxicant.
Help the client to understand that an expert will be needed to
successfully defend this case. Be familiar with experts who can
assist you in this area, and be able to quote their fees to your
client at that first meeting. You want to be absolutely certain that
the non-indigent client understands the need to save money for
that expert fee so that when and if a trial date looms ahead, you
are not delayed by the lack of funds which deny you the tools
you need to win. Obviously not all clients can afford you, bail,
and their expert. Do what you can to make them understand
the importance of having your own expert in this field.] You
should advise your clients that their personal physician will
probably not want to get involved and will definitely not want
to testify in court. Personal physicians don't usually make good
witnesses so don't rely on the "My doctor said he would give
you an affidavit" as a substitute for a good expert and in light of
the fact that it will not be admissible for any purpose.
4
Most medical records are maintained and will be providu
1
to your office by a third-party contractor of the hospital. Ir'
important to send the release to the hospital quickly. TI-<
contractor may take up to a month to prepare records, so J
not delay in getting the HIPAA request out to the healthca'o
provider. When a blood draw has been performed at the j,,;'
you should request this from the jail medical director within _
few days of the initial client meeting.
The ALR request must also contain your requests for discovery
for the license hearing. You will request of a copy of the DIe
23, 24, and 25, the criminal complaint, a list of witnesses
the State intends to call, any affidavits and reports which the
State intends to introduce at the hearing, a full copy of the
offense reports and all other documents prepared by the officer
with regards to his investigation into this matter. Fax that to
Texas DPS Driver Improvement Bureau in Austin, Texas at
512-424-2650.
5
During the initial meeting, ask the client to show you the area of
the body where the draw took place and all areas where attempts
were made. If any area is bruised, have your investigator or
someone on your staff (choose someone who can successfully
testify) take digital photographs. Obtain as much detail about
the draw from the client as possible. In order to do this, you
must be familiar with the procedures, law and cases dealing with
cases dealing with search warrant affidavits and search
warrants, phlebotomy and the jail's standard operating
procedures, including its blood-born pathogen procedures. For
example, if your client has had a mastectomy, blood should not
be taken from the arm on the same side of the surgery. This
is just one example of the many procedures and cautions that
must be observed during a blood draw and you will need to
know them all.
If the draw was done at the jail, visit the place where your
client's blood was drawn. Obtain the maintenance log for this
area in a Public Information Act request. Blood draws are only
supposed to be performed in sanitary conditions.
6
Was the
blood drawn in a sanitary area? What type of cleaning agent
was used? Is that cleaning agent specific to remove blood
borne pathogens?
In your Public Information Act request to the
jail request, ask for:
Cleaning/maintenance logs Plumbing problems
Health code violations Repairs to the Building
Contaminations or outbreaks of disease or infections
In our region, the following individuals are
designated Custodian of Records for their
respective jails:
Montgomery County Jail Harris County Jail
Sgt. Mike Weinzettle Lt. John Legg
[
Fax: 936-760-5815
[
Fax: 713-755-3647
Galveston County Jail
Captain John Pruitt
John.Pruitt@co.galveston.tx.us
[
Fax: 713-755-6228
Schedule your file review with the prosecutor and copy
everything in the file and note the date and specific contents
you have reviewed on a separate page.
7
Fax a receipt of items
reviewed to the District Attorney's Office so there is no
confusion what was and what was not in the file at the time of
your review. For some reason, the word "supplement" is not
in the prosecutor's lexicon.
Obtain a copy of the video of the stop and coordination
exercises your client performed. Watch it and have someone
in your office transcribe the entire video.
Obtain a copy of the lab report during your file review. Draft
your blood subpoena using the information contained on the
lab report. If controlled substances are alleged to be the cause
of impairment, check the lab report against your client's
prescriptions. You must know exactly what is alleged to be
causing your client ' s impairment.
THE DEFENDER
Compare the levels of drug alleged in the lab report to your
client's prescriptions filled by the pharmacy and those listed
by their physician. Verify that these match. Be wary of the
client that has multiple prescriptions from numerous doctors
being filled at several different pharmacies. If you do not check
these and inadvertently disclose this to the ADA prosecuting
the case during plea negotiations, your client may wind up
being prosecuted for a controlled substance charge in addition
to the DWI charge and will not be pleased with your level of
representation. I have had a client who had eight different
controlled substances in her blood at the same time. All were
prescribed and all were of a therapeutic level. But only an
expert could explain this to the jury.
You should have a preliminary questionnaire prepared for new
clients. I am constantly updating mine so that I can remember
what to ask new clients and make that initial meeting as fruitful
as possible. Don't be surprised by the client who forgets
to tell you about root-canal surgery and resulting Vicodin
prescription. That client may say, "But it's OK, because I only
had two glasses of wine with the Vicodin." Most people don't
understand that DWl includes prescription medication and they
do not think it is important to tell you about their surgeries and
medicatinns.
The initial client meeting should cover
at least the following:
Steps involved in defending a Blood DWl
Timeframe involved
Client expectations
Expert services and fees
Possibility of trial
(highly likely unless your client decides to plea to DWI)
Facts and circumstances surrounding your client' s arrest
If the lab report states that your client was on prescription
medication, you must verify that your client actually had that
prescription and it was current at that time. Next, you will
compare the amount of controlled substances in your client's
blood to known therapeutic and toxic levels.
Review the Physician's Desk Reference
8
for side effects and
compare that to the officer's observations regarding horizontal
gaze nystagmus and the coordination exercises. [KC6]Many
times, the side effects contradict what the officer claims to
have seen and observed during the coordination exercises.
Many websites can be searched to determine the effects, also.
Include this in your preparation for your ALR hearing. Be able
to exhaustively question the officer about his observations of
your client and look for contradictions in his observations and
the reported side effects.
@ THE DEFENDER
Once you have your initial meeting with your client, you begin
the preparation to go to the lab and review the blood. In order
to do this, you will need a court order. I forward a copy of the
signed order to Mr. Keith Gibson, Lab Director at the DPS
Crime Lab at 12230 West Road, Houston TX 77065-4523, fax
number 281-517-1395 . Call Mr. Gibson at 281-517-1380 to
schedule your appointment. It takes at least an hour to review
the blood evidence so be prepared to spend some time at the
lab. Keith Gibson and his staff are helpful and polite and they
will answer your questions, but they are witnesses for the State
and you should independently verify everything they tell you.
At the same time, you should request a subpoena for the relevant
information you will need from the lab. They will accept service
by fax so once you fax it over, expect to get a CD with up to
2,000 pages of material. This is the meat of your case and where
your expert will lend a hand.
Make a copy of the disk that the lab sends and forward the
copy to your expert immediately. Begin your review of the
evidence as soon as it is received. Never assume you will not
find a problem.
I was fortunate enough to find an analyst that had not passed
a proficiency exam at the time of testing. Because this is a
serious breach of American Society of Crime Lab Directors
regulations, I was able to obtain a better plea bargain. Allowing
an analyst to continue to conduct tests without passing their
proficiency exams can cause the lab to lose its certification
with ASCLD and hence, be out of business. By exploiting this
problem, I was able to secure a two-year plea on a habitual
client with numerous priors for a Second Degree Felony that
was enhanced to a First Degree. Because of the lab problems,
the State agreed to abandon the enhancement and offer my
client 2 years of which he had already served. Review your
records request thoroughly.
While you are reviewing your records and comparing them
to the offense report, pay attention to the dates. Be aware of
the time of year and the weather conditions, specifically the
temperature, at that time of year. Even in February, in Houston,
a blood vial riding around in the back of an officer's "unit"
can be exposed to 75-degree heat,9 which in itself can cause an
elevated Blood Alcohol content due to non-refrigeration and
growth of bacteria.[KC7] Compare the dates of the chain of
custody you will receive from the lab to the dates the officer
claims to have mailed it.
In the next article, I will examine the evidence review that you
must conduct at the lab and what you will be looking for during
that review.
Kelly W Case is an experienced criminal defense lawyer who
practices in Galveston, Harris and Montgomery counties. He
is scheduled to speak about DW!prosecutions based on blood
draws at HCCLA 's weekly CLE session on Nov. 19.
I Obtained through Public Information Act
Request pursuant to Chapter 552 of the Texas
Government Code.
2 Per Warren Diepraam, Assistant District
Attorney for Montgomery County.
3 And, if your client absolutely cannot afford
the necessary expert(s), do not despair!
Clients who have exhausted their financial
resources in getting bailed out and hiring you
are entitled to court-appointed experts.
Ex parte Briggs, 187 S.W.3d 458
(Tex. Crim. App. 2005).
4 Melendez-Diaz v. Massachusetts, 577 U.S.
(2009).
5 Tex. Transp. Code 724.041. The request for
hearing must be received within 15 days of
the notice of suspension. However, since the
lab results may not come back for more than a
year in certain cases, the request must be sent
to DPS within 15 days of the results being
sent to DPS, which then generates the Notice
of Suspension. Put a ticker in your calendar
to check with DPS every 2 weeks so that you
do not miss the filgin deadline for this hearing
in the event that the results are delayed by the
lab.
6 Tex. Transp. Code 724.017.
7 At the time of writing this article, the Harris
County DA's Office has announced plans for
defense attorneys to obtain copies of their
files, but the specifics of this policy had not
been finalized.
8 Physician's Desk Reference (ISBN-13:
9781563637049) is published by
Thomson-Reuter's Publishing every year.
9 On February 1, 2009, for example
the tennperature in downtown Houston
reached 73 degrees. See Weather
Underground website, available at
http://wv.rw.wunderground.comlh istory /ai rport

N state=N statename=N A
(last checked July 29, 2009)
have
H[I\RI)?
Incurred in Defending Malpractice Actions. . [t\
by Yolanda Coroy
It's every lawyer's nightmare: you've been appointed to represent a client in a criminal case
and then the client turns around and sues you for malpractice If that happens when you were
appointed pursuant to the federal Criminal Justice Act (CJAI. you should know a year 2000
amendmentI to the statute now provides assistance to eligible counsel who are alleged to
have malpracticed upon their indigent cl ients.
The guidelines for obtaining relief are found in Paragraph 2.27E of Volume 7 of the Guidelines for
the Admini stration of the Criminal Justice Act and Related Statutes? The Guidelines authorize
courts to reimburse panel attorneys for expenses reasonably incurred in defending actions alleg-
ing malpractice in furnishing representational services under the CJA. The amendment covers
expenses incurred on or after its effective date. which was November 13. 2000
Reimbursement does not occur if amalpractice judgment is rendered against the attorney. Con-
sequently. the Guidelines state that no reimbursement should be provided until the malpractice
claim is resolved. The total reimbursement is not to exceed the deductible amount of counsel's
professional liability insurance policy or $5.000. whichever is less. Expenses qualifying for reim-
bursement include. but are not limited to: the costs of transcripts. witness fees and costs. and
attorney fees. In determining reasonable attorney fees. CJA rates are inappli cable. However. at-
torneys will not be reimbursed for attorneys fees for time spent representing themselves or in
assisting counsel in malpractice actions.
Reimbursement should be claimed under the expense categories on CJA Form 20 or. where
the appointment was in a capital matter. CJA Form 30. and supporting documentation should
be attached.
I Federal Courts Improvement Act of 2000. Pub. L No.1 06-518 (codified as amended at 18
U.S.C. 3006A(d)(1 ) (2000))
2 See Guidelines 227(El. available at http://wwvv.uscourts.gov/defenderservices/Chapter
2.cfm#227 (last visited Aug. 1.2009).
Yolanda Coray is a longtime HCClA member. past Board Member. former MuniCipal Judge for
the City of Houston. and is a solo praclitioner With aprimary practice in criminal law for more
than 15 years.
DENNIS
* * * * *

I bMMI ' COl 'T\ CRI""'" COl NT 0. 13
. -'t'- -
Texas Criminal Defense
Lawyers Association www.SlateforJudge.com
Harris County
DennisSlateforJudge Campaign
Criminal Lawyers Association
112 E. Forrest
Houston Bar Association
Deer Park, TX 77536
713-409-3293
Past President
Pasadena Bar Association
dennis@slateforjudge.com
Associate Judge serving
Politicaladvertlslnl paidbyDennis5'iIIlefor Judie Campaign,JacquelineHoulette.Tre;utJrer, Houston and Pearland
In withthevoluntarylimitsoftheJudldoW Campals" FaIrnessAct.
Your Honor, May I
Take the Dog on
Voir Dire?
Evidentiary &Constitutional
Objections to Dog-Scent Lineups
By Barbara Drumheller
Lest anyone be tempted to underestimate the power of dog-scent
lineups, consider this: in a recent case affinned in an unpublished
opinion by the First Court of Appeals, the only evidence supporting the
felony charge came from a few dogs.' Not just any dogs; bloodhounds
with cute, evocative names like "James Bond," and "Clue."2 Imagine
a juror confronted with testimony that a dog named Quincy solved
the case. What's not to love about a cuddly-faced dog named after
television's first crime-solving, forensic examiner? 3
In our jurisdiction and others, dog handlers and law enforcement
agencies are taking junk science to an entirely new level.
4
Not satisfied
with using their dogs as mere investigative tools, they have designed
so-called dog-scent lineups to allow the dogs to finger the perpetrator
and testify via inadmissible hearsay at trial. The Court of Criminal
Appeals has not yet considered the admissibility of dog-scent lineups
but the law is developing among the intennediate courts in favor
of dog testimony. Defense attorneys have a responsibility to bring
this issue to the attention of the courts by making both evidentiary
and constitutional objections and preserving the issue for vigorous
litigation on appeal.
Dogs as Scientists: The Rules of Evidence
The leading published opinion on dog-scent lineups in Texas is
Winston v. State, 78 S.W.3d 522 (Tex. App.-Houston [14th Dist.]
2002). In that case, the court of appeals upheld the conviction after
a trial court denied the defense motion under Rule 702 to exclude
the evidence of a scent lineup.s When the defense objects to the
admissibility ofscientific evidence under Rule 702, the courts apply
the standards set forth by the Court of Criminal Appeals in Kelly v.
State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).6 The decision
in Kelly was intended to describe a gatekeeping role for courts in the
admissibility of scientific evidence, presumably to prevent rampant
admission ofjunk science in the courtroom.
7
Unfortunately, the court of appeals in Winston applied a different test
to determine the admissibility of dog-scent lineups. The test applied
by the court in Winston is the one set out in Nenno v. State, 970
S. W.2d 549, 560-61 (Tex. Crim. App. 1998). Nenno is a less rigorous
test intended to apply to expert testimony that is not particularly
scientific.
s
Under Rule 702, an expert need only have specialized
knowledge and his knowledge can be based on training and experience
rather than science. When the court of appeals applied the Nenno test
to dog-scent lineups, it tacitly decided that dog-scent lineups are not
actually based on science.
At first blush, this seems like a defensible conclusion, because no
reasonable person can think that swabbing people and items with
gauze, putting the gauze in coffee cans in the parking lot behind the
police station, and setting the dogs loose to "alert" on the coffee cans
by jumping up and down, wagging their tails, barking or sitting is
based on real science. The disadvantage for the defense, however,
is obvious once the opinions under Kelly and Nenno are compared:
Nenno is a much easier test to meet.
9
Moreover, the court of appeals
simplified the Nenno test even further in Winston, when it altered the
third prong of the Nenno test specifically for dog-scent lineups. For
dog-scent lineups, the third prong of Nenno is met by showing: (I)
the qualifications of the particular trainer; (2) the qualifications of
the particular dog; and (3) the objectivity of the particular lineup.1O Tn
practice, if the dog and its trainer are already familiar to the court or
the jurisdiction, the first two parts of the test are automatically met. II
After all, if another court has already decided they are qualified,
they must be qualified. How does a Nenno objection based on the
objectivity of the particular lineup differ from a due process objection
that the lineup was impennissibly suggestive? Best to object on both
grounds, prior to trial.
In cases in Harris County dog handlers have testified to facts that are
not based on mere experience and training. For example, Sheriff's
THE DEFENDER
Deputy Keith Pikett, a dog handler out of Fort Bend County, has
testified that dogs track human scent based on skin cells.
12
He has told
juries that people shed skin cells constantly, losing "conservatively
50 million of these a day."J) He has testified that such skin cells are
"unique to each person, like a fmgerprint." It's hard to imagine how
any dog handler or other non-scientific expert could ever learn such a
thing through training and experience, given that no scientific testing
bas ever been done regarding the uniqueness of human skin celJs.
14
Deputy Pikett has testified he doubts dogs can detect one person's
scent on another person, 15 and he has also said that he does not believe
scents have commonalities along gender or ethnic lines, although
he has no basis for his belief.
16
Such evidence, consisting purely of
opinion and conjecture, gives a jury the impression that dog-scent
science is well-developed and well-studied, when in fact it has been
developed, in Deputy Pikett's own words, "by the seat of our pants." 17
In United States v. McNiece, 558 F.Supp. 612 (D.C.N.Y. 1983), the
judge stated, "when a dog is used in a man-trailing situation (or in a
lineup), 'be is following a trail which he alone recognizes in a way in
which he alone understands.' 18 This statement succinctly summarizes
the biggest problem with dog-scent evidence. The judge noted the
large number of crimes investigated by the dog and his handler in that
case, and pointed out that in all of them, "the suspects either confessed
or pleaded guilty after the lineup.,,19 "In this connection," the judge
continued, "it might be argued that [the dog] may never have been
'proven wrong' merely because the defendants who pleaded guilty
after being identified feared the potential prejudicial weight of the dog
identification evidence if they had gone to trial and because the police
. ..placed undue emphasis on the reliability of the dog's actions.,,20
Here in our own jurisdiction bloodhounds employed for this type of
work have been approved as reliable witnesses in part because they
have not been proved wrong on any occasion.
21
The scope of this
article is too small to describe all the ways in which this premise is
unacceptabIe. 22
The State and the courts should not be able to have it both ways.
Either dog-scent lineup testimony is unscientific expert evidence based
on training and experience and it should not encompass untested and
unproven theories and opinions, or it is a science, and the testimony
should be tested under Kelly.
An attomey faced with a dog-scent lineup should object under Rule
702, and request a hearing under Kelly.23 Reliability is the linchpin of
the analysis under Kelly, and in this regard recent civil lawsuits based
on misidentification made by dogs in scent-lineups are instructive.
24
Under the Rules of Evidence, if the court determines the dog-scent
lineup is relevant under 702 as interpreted through the lens of either
Kelly or Nenno, the evidence may still be excluded under Rule
403.
25
Currently, Rule 801 of the Texas Rules of Evidence defmes a
"statement" as, among other things, nonverbal conduct if it is intended
as a substitute for verbal expression?6 While dog alerts certainly
constitute nonverbal conduct intended as a substitute for verbal
expression, the rule applies only to statements made by a "person."
Nevertheless, the "statements" made by the dogs accomplish exactly
what Rule 802 intends to prohibit.
Dogs as Witnesses: Constitutional Violations
{I} The Confrontation Clause
The Confrontation Clause sat dormant in the face of hearsay rules
until the relatively recent decision ofthe Supreme Court in Crawford
v. Washington,27 In that case, the Supreme Court made clear that
regardless of evidentiary rules, if a defendant is deprived of his
right to confrontation and cross-examination as guaranteed by the
United States Constitution, hearsay testimony is inadmissible.
28
Even
more recently, the Court showed it was not willing to confine the
Confrontation Clause to analyses involving hearsay rules. Scientific
evidence, relevant and admissible under rules of evidence pertaining
to expert testimony, must not violate the Confrontation Clause.
29
Taking these two opinions together, they show the current Supreme
Court has an inclination to honor a defendant's rights to confrontation
and cross-examination.
No courts in Texas have addressed a Confrontation Clause argument
in the context ofdog-scent lineups. For that matter, few jurisdictions
have considered the application of tbe Confrontation Clause to the
question of dog scent evidence. Those that have considered it have
concluded that the human testimony of the trainer or handler makes
the evidence admissible because the defendant can cross-examine
that person?O Moreover, these cases involved tracking or trailing,
rather than dog-scent lineups where the dog's "identification" of the
perpetrator is presented as if the dog were an eyewitness to the crime.
At the time of the writing of this article, no appellate courts have
explicitly address the implication of the Confrontation Clause with
respect to dog-scent lineups following the decisions in Crawford and
Melendez-Diaz.
When a dog provides tracking or trailing evidence, the handler can
testify at trial about what happened when he followed the trail and
what evidence or clues were discovered at the end of it. In a dog-scent
lineup, on the other hand, the handler is testifying about what the dog
"told" him. The Lineups are conducted in an eerily similar way to a
live lineup or a photo array, and the evidence adduced from them is
viewed with equal reverence on the part of police and juries. The
only distinction between a scent lineup and a live lineup is the nature
of the eyewitness. In the latter case, the eyewitness is a human, who
can be cross-examined, and in the former case, the eyewitness is a
dog who cannot. No amount of cross-examination performed on
the dog handler is going to iUuminate the court about the basis for
the dog's decision, the level of certainty felt by the dog, the degree
of doubt retained by the dog, or the motivation the dog might have
had for choosing a particular piece of gauze in a particular coffee
can. No one can ask the dog whether he recognized the scent of
the officer who took the scent samples, or whether he was confused
because of the direction of the wind, or whether, in his experience, the
scents of different people include similarities based on their gender,
ethnicity, occupation, grooming preferences, or hobbies. In short,
cross-examination of the handler or trainer is wholly inadequate.
Under Crawford, no officer would be pennitted to testified that he
conducted a live lineup and an eyewitness, not present at trial, told
him which man conunitted the crime. Cross-examining the officer
THE DEFENDER
on whether the witness seemed certain, or whether the witness
soundedconvinced,wouJdnotsatisfythedefendant'srighttoconfront
and cross-examine the witness himself. Likewise, courts should
recognize that dogs cannot be pennitted to "testify" substantively
aboutadefendant'sguiltthroughthehearsaytestimonyofitstraineror
handler.Ifyouareinclinedto believethatcross-examiningthehandler
is good enough, ask yourself: in a dog-scent lineup case, who is the
eyewitness?
{2} Due Process
A pretrial identification procedure may be so suggestive and
conducive to mistaken identification that subsequent use ofthat
identification at trial woulddeny the accused due processoflaw]1
As all defense attorneys know, the defendant has the burden to
show, by clear and convincing evidence based on the totality of
the circwTIstances, that the pretrial identification procedure was
impermissiblysuggestiveandthatitcreatedasubstantiallikelihood
of irreparable misidentification.
32
This is done during a pretrial
hearing. Suggestiveness may be created by the manner in which
the pretrial identification procedure is conducted. Forexample, if
police pointoutthe suspectorsuggestthata suspectis included in
theline-uporphotoarray,theprocedureis suggestive.))
Under Winston, the suggestiveness ofthe pretrial procedure would
also be tested on an evidentiary basis, because the altered Nenno
test contains a requirement that the particular dog-scent lineup be
"objective.,,)4 Suggestiveness, or lack ofobjectivity, is difficult to
show without a videotape ora particuJarly forthright officer. Even
withavideotape,Jaypeoplewillbeunabletoseewhetherthedogwas
influenced by the trainer or whether the dog's "alert" was genuine
unless anexpertondogbehaviorcan interprettheprocedure. Adog
trainer will not willingly admit he influenced his dog to choose a
particularsuspect. Hemaynotevenbeawareofhis own suggestive
behavior. Nevertheless,itis worthobjectingtoadog-scentlineupon
dueprocessgrounds.
Here inourownjurisdiction
bloodhoundsemployed for this
typeofworkhavebeenapproved
as reliablewitnessesin part
becausetheyhavenotbeen
provedwrongonanyoccasion.
Atleastone courtofappeals has decided in an unreported decision
thatadog-scentlineup is notacritical stageofacriminal proceeding
for purposes ofthe Sixth Amendment.)5 As a result, the defendantis
notentitledto representation by counselduringascentlineup.)6 This
createsaproblemforthedefenseattorneywhohopestomakearecord
to preserve an objection to thesuggestivenessofa dog-scentlineup.
Iftheattorneyis notpresentandnovideotapewasmade,theattorney
islefthopingtoshowsuggestivenessbycross-examiningthehandler,
who has single-handedly ensured that he is the only witness to the
dogs'crime-solvingbehavior.
THE DEFENDER
islefthopingtoshowsuggestivenessbycross-examiningthehandler,
who has single-handedly ensured that he is the only witness to the
dogs'crime-solvingbehavior.
Even ifa pretrial identification is, in fact, suggestive, an in-court
identification is usually permitted by the eyewitness as long as it
wasn't "so unnecessarily suggestive and conducive to irreparable
mistakenidentificationthathe[thedefendant]wasdenieddueprocess
oflaw.,,)7The usual factors used to assess an identification include:
(1)thewitness'sopportunitytoviewthecriminalact,(2)thewitness's
degree ofattention, (3) the accuracy ofthe suspect'sdescription, (4)
the level ofcertainty at the time ofconfrontation, and (5) the time
betweencrimeandconfrontation.)8
In adog-scentlineupcase,thedogwill beunableto testifyattrialand
giveanin-courtidentification. Thisshould highlightfor the courtthe
fact that the witness, within the meaningofthe Constitution and the
SixthAmendment,isthedogandnotthehandler.Assumingthecourt
isunconvincecl,however,anapplicationof theusualfactors regarding
identificationshouldhelp.
Thefirstfactorconcernsthewitness'sopportunityto viewthecriminal
act. The witness (the dog) in a dog-scent lineup case has had no
opportunity to witness the criminal act. The second factor concerns
thedog'sdegree ofattention. In the traditional application, the courts
considerthe eyewitness'sdegreeofattention to the criminal act. In a
dog-scent lineup case, the dog had no opportunityto payattention to
thecriminalact. Moreover,becausethedogcannotbecross-examined
itis impossibleto meaningfullyassessthedog'sdegreeof attentionto
the lineup procedure. Noonecanknowwhatthedogis thinking.The
third factorconcernstheaccuracyofthesuspect'sdescription.
InthecaseofDeputyPikett, his priortestimonyindicatesthe"scent
samples"obtained from crimescenesorvictimsare often basedon
pureguesswork.Forexample,Piketttestifiedinadepositionthathe
swabbed a victim's body in several locations, including her neck,
justonthe offchancetheperpetratormighthavetouchedherthere.
Hehastestifiedin thepastthatheobtainsscentsamplesfromcrime
scenesbytellingofficerstomerelyswabthingsasuspectmighthave
touched.Thesekindsof procedurescastdoubtontheaccuracyof the
"description"ofthesuspect, to theextenttheswabs from the scene
canbeanalogizedto a"description."
The fourth factor--the level ofcertainty--can can never truly be
known in a dog-scent lineup case. No objective evidence about the
dog'scertaintycaneverbepresented.Nevertheless,avideotapeof the
lineupandcross-examinationofthehandlercan atleastpresentsome
evidencethedogmighthavebeenuncertain. Forexample,testimony
from dog handlers in past cases have included comments about
variations in a dog's"alert," meaning that sometimes the dogs bark,
sometimestheydance,sometimestheywagtheirtailsandsometimes
theysit. Thejudgeshouldconsiderthepossibilitythatachangein the
dog's usual manner of"alert" might indicate a diminished level of
cel1ainty, regardless ofthe handler's interpretation. Finally, the fifth
factor, timingof thelineup,canbeappliedbasedonthetimebetween
thecrimeand thetimethescentsampleswereobtained,and thenthe
timebetweenthecollectionofscentsamplesandthelineup.Eventhe
mostoptimisticandidealisticofdogtrainershaveadmittedthatscents
deteriorateovertime.)9
Dogs as Substitutes For Actual Evidence:
The Conclustion
Courts are fond of saying that the ability of certain breeds of
dogs, especially bloodhounds, to distinguish humans by scent is
well-documented. This may be true, but the ability of bloodhounds
to communicate to humans, through nonverbal gestures, whether
a gauze pad that has been rubbed on a person's skin and put in a
can indicates that person has committed a crime is something else
entirely. Cowts respond that jurors will understand the limitations
of such testimony, because they will recognize that dogs are
"human-like" and subject to lapses in judgment and perception,
which means their evidence will have lesser potential prejudicial
impact.
4o
Whether juries recognize that dogs are "human-like," and
subject to lapses in judgment and perception is an open question.
History suggests it is more likely that juries will consider dogs to be
truthful, capable, pure in motive and gifted with superior olfactory
senses, however limited our understanding ofthem.
41
The cowts in
Texas have just begun to respond to the advent ofdog-scent lineups.
There is still a real opportunity to keep this unreliable junk science
out of our courtrooms.
Barbara Drumheller started her career in criminal law at the Harris
County District Attorney 's Office in the appellate division. She left
that position in 2000 to take contract appeals while caring for her
three small children. She is now building a private practice handling
mainly post-conviction matters.
I Perkins v. State, No. 01-08-oo205-CR, 2009 WL 2050494 (Tex. App.-Houston
[14th Dist.] 2009) (in this case, the dogs provided the only evidence ofentry in a case
that otherwise would have been cbarged as a misdemeanor theft).
21d. at 5.
3 Quincy. M.E. (NBC television show). Quincy, M.E. premiered on October 3, 1976
and ended on May II, 1983. The popular show documented the career ofa crusading
Medical Examiner in Los Angeles, an expert always capable of finding a small clue
everyone else missed.
4 In several jurisdictions dog-tracking or scenting evidence is already inadmissible, per
se, on reliability grounds. People v. PJanschmidt, 262 m. 411,104 N.E. 804 (1914);
Ruse v. State, 186 Ind. 237, 115 N.E. 778 (1917); State v. Grba, 196 Iowa 241, 194
NW. 250(1923); Stale v. Storm, 125 Mont. 346,238 P.2d 1161 (1951); Brott v. State,
70 Neb. 395, 97N.W. 593 (1903); People v. Centolella, 61 Misc.2d 726, 305 N.Y.S.2d
460(1969).
S Rule 702 of the Texas Rules of Evidence states: "If scientific, technical, or other
specialized knowledge will a ~ s i s t 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."
6 I"n Kelly, the Court of Criminal Appeals held, "Evidence derived from a scientific
theory, to be considered reliable, must satisfY three criteria in any particular case: (a)
the underlying scienti fie theory must be valid; (b) the technique applying the theory
must be valid; and (c) the technique must have been properly applied on the occasion
in question." Kelly, 824 S.W.2d at 573.
7 PETER T. HOFFMAN, TEXAS RULES OF EVlDENCE HANDBOOK 683-87
& 702-739 (Jones McClure Publishing, Inc., 2008-2009) (8th ed.) (setting forth the
development of the law regarding scientific experts and the problem ofjunk science).
8 Nenno, 970 S.W.2d 549 at 560-62.
Resources for Defense Lawyers
with Dog-Scent Cases
The Trial Project of the Texas Defender
Service keeps resource files on dog-scent
evidence and on Fort Bend County Sheriff's
Deputy Keith Pikett. These materials
include scholarly papers on dog-sccnt
lineups, prior testimony by Deputy Pikett,
and testimony by defense experts.
Therefore, if you're facing dog-scent
cvidcnce or Deputy Pikctt as a witness for
thc prosecution in your next casc and you
want to obtain a copy of these materials
on CD-ROM, contact Kathryn Kase at
KM Kase@compassnet.com.
9 In Nenno, the Court of Criminal Appeals stated that the appropriate questions for
assessing reliability are: (I) whether the field of expertise is a legitimate one; (2)
whether the subject matter of the expert's testimony is within the scope of the field;
and (3) whether the expert's testimony properly relies upon or utilizes the principles
involved in the field. Nelina, at 561.
10 The court broke down the analysis even further by providing five factors to consider
regarding whether the particular dog is qualified: it must be (I) ofa breed characterized
by acuteness of scent and power ofdiscrimination, (2) trained to discriminate between
human beings by their scent, (3) found by experience to be reliable, (4) given a scent
known to be that of the alleged participant of the crime, and (5) given the scent within
the period of its efficiency. Winstoll v. Stale, 78 S.W.3d at 527-28.
II See Perkins v. State, No. 01-08-00205-CR, 2009 WL 2050494, 15 (Tex.
App.- Houston [14th Dist.] 2009) (citing Wins/on for the proposition that Deputy
Pikett and his bloodhounds are qualified to perform scent lineups).
12 Testimony from Perkins v. State at R.R.3 - 134.
13 He has also said people shed, conservatively, fifteen million cells a day. Winfrey v.
State, --S.W.3d-, 2009 WL 1636849 (Tex. App.-EastJand, 2(09).
14 See, Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth oJthe Dog
&enl Lineup, 42 Hastings L.1. 17 (\990); see also Deposition ofKeith Pikett (Document
No. 81) in Buchanek v. City oj Victoria, No. 6:08-CF"()()()()8 (S.D. Tex. 2009) ("there
isn't much literature on [training methods for bloodhound scent discrimination]. There's
pamphlets handed out by these Old Timers, there's the National Police Bloodhound
Association's little pamphlet on information on bloodhounds, but there are no books
written that you could just pull up").
IS Wi'!frey v. State, ---S.W.3d---, 2009 WL 1636849 (Tex. App.-Eastland, 2009).
16 Testimony from Perkins v. Stale at R.R.3 - 148.
17 Testimony from Perkins v. State at R.R.3 - 133.
THE DEFENDER
18 u.s.v. McNiece,558F.Supp.612(D.C.N.Y. 1983)(quotingL.W.Davis,GoFind!
60(1974.
19Id.at614.
2OId.
21 Winfreyv. State, --S.W.3d--,2009WL1636849(Tex.App.-Eastland,2009).
22 Atleastonetrial courtthat has barred Deputy Pikett'sdog-scentlineup testimony.
SeeOrderatRRVol.2:161-65inStatev.JustinJeromeAlexander,CauseNo.50041
(268th Dist. Ct., Fort BendCounty June 16,2009). Additionally, Deputy Pikett has
nowbeensuedbytwomenwhowereclearedbyDNAtestingaftertheyweresuspected
of, respectively, a capital murder and a rape based on scent-lineup alerts made by
DeputyPikett'sdogs. See, e.g., Buchanekv.Cityof Victoria, CauseNo.08-CV-OOOO8
(S.D.Tex. 2(09)(lawsuitbysheriffsdeputyallegedtobe personofinterestin capital
murder);Millerv.CityofYoakum,CauseNo.09-CV"()()()35 (S.D.Tex.2009)(lawsuit
byman suspectedofrapebasedondog-scentlineup).
23 A non-exclusive list offactors the court can consider while conductinga Kelly
analysisinclude(I)theextenttowhichtheunderlyingscientifictheoryandtechnique
areacceptedasvalidbytherelevantscientificcommunity,ifsuchacommunitycan
be ascertained;(2)the qualificationsoftheexpert(s)testifying; (3)theexistence of
literaturesupportingorrejectingtheunderlyingscientifictheoryand technique;(4)
thepotentialrateof errorofthetechnique;(5)theavailabilityof otherexpertsto test
andevaluatethetechnique;(6)theclaritywithwhichtheunderlyingscientifictheory
and techniquecanbe explainedto the court; and(7)the experienceandskill ofthe
person(s)whoappliedthetechniqueontheoccasioninquestion.
24 RickCasey,Dog'sNoseFallibleasa CrimeLab, HoustonChron.,June30,2009.
2S Rule403states: "Althoughrelevant,evidencemaybe excludedif itsprobativevalue
is substantiallyoutweighedbythe dangerofunfairprejudicc,confusionofthe issues,
ormisleadingthejury,orbyconsiderationsof unduedelay,orneedlesspresentationof
cumulativeevidence."
26 TEX. R EVID.801(a).
10yearsofcriminal SpecialProsecutor
lawexperience
LegislativeLiaison,
Member,StateBarRulesof 80thLegislature
Evidence Committee
Formerpeaceofficer
Experienceddefenselawyer
and former prosecutor: Over300criminalappeals
Felonyandmisdemeanor andwrits (stateand
trialcourts federal), includingover25
Federal andTexas Chapter64DNA appeals
appellatecourts
TexasCourtofCriminal
Appeals
UnitedStatesSupreme Court
Pol ad.paid for by the Peyton Peebl es
for Judge Campaign,
JamesStafford,Treasurer
PO Box 53776
Houston, Texas 770523776
THE DEFENDER
27 Crawfordv. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158L.Ed.2d 177(2004).
281d. at51, 124S.Ct. 1354.
29Melendez-Diazv. Massachusetts,577U.S.--y2009WL1789468(2009).
30 Copley v. State, 153 Tenn. 189, 281 S.W.460 (1926) ("such evidence is not
inadmissibleonthegroundthatthedogisthewitnessandcannotbe cross-examined.
Itisthe human testimonywhich makesthetrailingdonebytheanimalcompetent);
seealso,Statev.Bumice, 131 Wash.App.10011,2006WL122198(2006).
31 Simmonsv. UnitedStates, 390U.S. 377,384(1968);Barleyv.State,906S.w.2d27,
32-33(Tex.Crim.App. 1995).
32Simmons,390U.S.at384;Barley,906S.W.2dat32-34.
3JIbarrav. State, II S.W.3d 189, 196(Tex.Crirn.App. 1999).
34 Wins/on v. State, 78S.W.3d522,527(Tex. App.-Houston[14thDist.]2002,pet.
rePd).
3sJenningsv.State, No. 14-08-00123-CR,WL1677858(Tex. App.-Houston[14th
Dist.] 2(09).
J61d.
37 Neilv.Biggers, 409U.S. 188, 196,93S.Ct.375,380,34L.Ed.2d401 (1972).
38Barley,906S.w.2dat34-35.
39See, e.g., DepositionofKeithPikett(Exhibit2to DocumentNo. 81)inBuchanekv.
Cityof Victoria, No.6:08-CF-OOOO8(S.D. Tex.2009).
40 Us. v.McNiece,558F. Supp.612(D.C.N.Y. 1983).
41 See, Andrew E. Taslitz,DoestheColdNoseKnow? The UnscientificMythofthe
DogScentLineup,42HastingsL.J. 17,26-27(describingthemanywaysinwhichthe
bloodhoundhasbeenreveredthroughouthumanhistory).
Recently, a defendant was charged with three felony counts in
state district court in Harris County and the court set bonds in an
amount totaling nearly $200,000. The defendant paid a bonding
fee of nearly $15,000, which allowed him to "bond out" of jail,
and he made six court appearances over a four-month period. On
the morning of his seventh appearance date, the defendant was late
to court - because a federal law enforcement agency had detained
him at his home. The trial judge forfeited the defendant's bonds
and set his release status at "no bond."
When the federal law enforcement agency finally released the
defendant, he immediately went to court. The trial judge then began
the process of recalling the forfeiture and reinstating the bonds.
However, the defendant's bonding company approached the judge
with an Affidavit of Surety to Surrender Principal.
The bonding company sought the surrender for three reasons: "(1)
[T]he defendant was detained by federal agents on [the] scheduled
court date and his bond was forfeited, then later reinstated; (2) The
defendant failed to report a new address to this bonding company;
and (3) [the bonding company] believes this defendant will
eventually go into federal custody before the case is disposed and
the bond will forfeit."
The trial judge granted the surrender motion and took the defendant
into custody. The defendant was able to bond out that afternoon
with the assistance of a new bonding company.
Fortunately for the defendant, his attorney filed a Motion for
Refund of Bail Bond Fees pursuant to section 1704.207 ofthe Texas
Occupations Code.
Section 1704.207 states: [I]f a principal is surrendered...and the
principal or an attorney representing the state or an accused in the case
determines that a reason for surrender was without reasonable cause,
the person may contest the surrender in the court that authorized the
surrender.
The law goes on to state that, if there was not "reasonable cause" for
the surrender, a trial court can require the bonding agency to refund
all or part of the fees paid to execute the bond. Additionally, the
trial court must identify the fees paid to induce the bond execution
"regardless of whether the fees are described as fees for the execution
of the bond."
As a result ofcounsel's motion and reliance upon Section 1704.207,
the trial judge found that there was not reasonable cause for the
surrender and ordered the original bonding company to refund
$10,000 to the defendant.
This demonstrates that counsel can obtain a refund of all or part of
the fees paid to execute the bail bond when the surety has sought to
surrender the principal without reasonable cause. As a first step,
however, attorneys and clients are advised to seek responsible and
ethical sureties who will post bonds and not seek surrender under
unreasonable circumstances.
John Burns is the founder of Burns Bail Bonds, a family-owned
bonding company which has been in operation since 1971.
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THE DEFENDER
Variances Are Not
Departures
by Another Name
By Marjorie A. Meyers
Background
The federal sentencing guideline scheme required a sentencing
court to impose a sentence within the guideline range unless the
court determined that there was a circumstance of a kind or to a
degree that had not been adequately considered by the
Sentencing Commission. I In United States v Booker, 543 U.S.
220 (2005), the Supreme Court held that this mandatory
guideline regime violated the Sixth Amendment.
2
The Court
judicially excised Section 3553(b), declared the Guidelines
advisory, and instructed judges to sentence in accordance with
18 U.S.C. 3553(a) . 3
Section 3553(a) commences by directing courts to "impose a
sentence, sufficient, but not greater than necessary, to comply
with the purposes set forth in paragraph (2)."4 This parsimony
provision is the " overarching provision instructing district
courts" how to impose a sentence.
s
The court is to consider the
nature and circumstances of the offense and the history and
characteristics of the defendant.
6
The court must then consider
(I) the need for the sentence imposed to reflect the seriousness
of the offense, promote respect for the law and provide just
punishment, (2) to provide general and individual deterrence,
and (3) to provide treatment and rehabilitation to the defendant
"in the most effective manner."? The court must also consider
the kinds of sentences available, the guidelines and policy
statements, the need to avoid "unwarranted" disparity and to
provide restitution.
8
The Guidelines are still an integral part of any post-Booker
sentencing: they are the "starting point" and "initial
benchmark.,,9 The district court's discretion, however, is
"significantly broadened," and the sentencing judge must make
an individualized assessment of the facts of each case.
IO
Moreover, the sentencing court shalt not presume that the
advisory Guideline range is appropriate in an individual case. II
Circumstances Need Not Be Exceptional
to Warrant a Variance
Before Booker, a sentencing court's authority to depart
depended on whether a factor was prohibited, encouraged,
12
discouraged, or not mentioned by the Sentencing Commission.
Encouraged departures were permitted if not already adequately
considered and "warranted."1J Discouraged and unmentioned
departures were permissible only if present "to an exceptional
degree," '4 in other words, if the circumstances were
"extraordinary."l s departure guidelines by way of analogy in
analyzing the section 3553(a) factors.,,' 9
@ THE DEFENDER
In rendering the Guidelines advisory, the Supreme Court
authorized sentencing courts, not only to depart from the
Guidelines, but also to vary from the recommended ranges in
accordance with 18 U.S.c. 3553(a). After Booker, it should be
"pellucidly clear" that the particular factors in any given case
need not be " extraordinary" to warrant a variance from the
Guidelines.
' 6
Indeed, the Fifth Circuit has held unequivocally that after Gall
and Kimbrough, "[w]ithout a doubt, the requirement of
'extraordinary circumstances' is no longer the law. " '? In
Simmons II, the court of appeals announced the "death of the
'extraordinary circumstances' language from Simmons I," and
remanded the case to allow the district court to consider whether
a downward variance based on age, a discouraged factor under
USSG 5H1.1, was warranted. 18
Other circuit courts have likewise made it clear that a
defendant's individual circumstances need not be extraordinary
to justify a non-Guideline sentence. The Seventh Circuit deems
"[t]he concept of departures . . . obsolete in post-Booker
sentencing ...[although] the district court may apply those
departure guidelines by way of analogy in analyzing the section
3553(a) factors."19
In United States v. Chase,20 the Eighth Circuit vacated a sentence
where the district court erroneously equated variances and
departures. The court of appeals emphasized:
Variances do differ from departures
Factors ordinarily considered irrelevant in
calculating the advisory guideline range, or in
determining whether a guideline departure is
warranted, can be relevant in deciding whether
to grant a variance....21
The Eighth Circuit went on to address not only the propriety but
the necessity of addressing the types of personal circumstances
in a given case:
In fashioning a " sentence sufficient, but not greater than
necessary," 18 U.S.c. 3553(a), "district courts are not only
permitted, but required to consider 'the history and
characteristics ofthe defendant.'" ...As a consequence, factors
such as a defendant's age, medical condition, prior military
service, family obligations, entrepreneurial spirt, etc. can form
the bases for a variance even though they would not justify a
departure.
22
Rejecting the government's reliance on pre-Booker caselaw, the
Eighth Circuit clarified that "departure precedent does not bind
district courts with respect to variance decisions, it is merely
persuasive authority.,,23
Similarly in United States v. Jones,24 the Second Circuit affirmed
a district court's variance from a 30-to-37-month Guideline
range to a sentence of 15 months for a defendant convicted of
being a felon in possession ofa firearm and possession offive
bags ofmarijuana based on the defendant's "consistent work
ethic," his family obligations and support, his father's recent
death and his efforts atrehabilitation.
25
The government argued that the sentence was not permissible
becausetheSentencingCommissionhaddiscourageddepartures
based on a defendant's education, emotional condition,
employment record, family ties and good works.26 As the
Second Circuit recognized, the government's reliance on
pre-Booker policy statements and court decisions revealed a
fundamental"misconception"concerningtoday'snon-Guideline
sentences.
27
Thecourtexplained:
By citing the Guidelines' departure standards,
however, the Government fails to appreciate that
Jones's post-Booker sentence is not a Guidelines
departure; itis a non-Guidelines sentence..
With the entire Guidelines scheme rendered advisory by
the Supreme Court's decision in Booker, the Guidelines
limitations on the use of factors to permit departures
are no more binding on sentencing judges than the
calculated Guidelines ranges themselves. Of course,
a sentencing judge's obligation to "consider" the
Guidelines ..includes the obligation to consider the
Commission's relevant policy statements as well as the
calculated Guideline range. But "consideration" does
not mean mandatory adherence.
28
In United States v. Martin,29 the First Circuit approved a
district court's 91-month variance, which was based in part on
the defendant's family circumstances and support. The courtof
appeals indicated that the Sentencing Commission's policy
statements still were pertinent but "normally not decisive as to
whatmayconstituteapermissibleground for a variantsentence
in agivencase.,,30 Theappellatecourtaddedthatadistrictcourt
may take "idiosyncratic family circumstances into account, at
least to someextent, in fashioning a variancesentence. ,,31
The SixthCircuitanticipated the SupremeCourt's rejection in
Gall ofmathematicalratios inupholdinga68-monthvarianceto
themandatory 120-monthminimumforadefendantconvictedof
possessionof203gramsofcrackwith intentto distributeit, who
also possessed four firearms including a loaded machine gun,
and a pipe bomb.32 The variancewas based on the defendant's
age, his minimal criminal record and family circumstances
includingthefact thathisfatherhadbeenmurderedwhenhewas
nine and his motherdiedofcancertwo years later.
33
Insummary,thesentencingcourthas anobligationto consider
all "nonfrivolous reasons" proffered by the parties for a
non-Guideline sentence.
34
In doingso, thecourtmust notfocus
solely on the offense to the exclusion ofconsideration ofthe
circumstances ofthe offender.J5 It is not "severe punishment
that promotes respect for the law, it is appropriate
punishment,"36 that is, punishment that is "sufficient, but not
greaterthannecessary," to complywith the purposessetforth in
the statute.
37
I
18 U.S.c. 3553(b).
2 United States v. Booker, 543 U.S. 220, 233-35, 244 (2005).
3 Id. at 259-61.
4
18 U.S.c. 3553(a).
5 Kimbrough v. United States, 128 S.Ct. 558, 570 (2007);see also
Gall v. United States, 128 S.Ct. 586,596(2007); Rita v. United
States, 551 U.S. 338,_ ,127S.Ct. 2456, 2463 (2007).
6 18 U.S.C. 3553(a)(I).
7 18 U.S.c.3553(a)(2).
8 18 U.S.c. 3553(a)(3)-(7).
9
Gall, 128 S.Ct. at596.
10Id.
II Nelson v. United States, 129 S.Ct. 890, 892 (2009); Rita, 127
S.Ct. at2465.
12 Koon v. United States, 518 U.S. 81,93-96(1996).
13 USSG 2K2.0(a)(2)(A); Koon, 518 U.S. at96.
14 USSG 2K2.0(a)(4);Koon, 518 U.S. at95-96.
15 See e.g. United States v. Simmons (Simmons 1),470 F.3d 1115,
1130 (5th Cir. 2006), cert. denied, 127 S.Ct. 3002(2007).
16
Gall, 128 S.Ct .at 595.
17 United States v. Simmons (Simmons II), 568 F.3d 564, 568 (5th
Cir.2009)(citing United States v. Rodriguez-Rodriguez, 530F.3d
381,384n.4 (5th Cir. 2008.
18
Id. at568, 570.
19 United States v. Schroeder, 536 F.3d746, 755-56 (7thCir.2008)
(emphasisadded)(agreeingwithdistrictcourtthatdefendant's
family circumstances includingadopteddaughterwith immune
deficiencywereextraordinary).
20 560F.3d 828 (8th Cir. 2009).
21 Id. at 830 (citationsomitted).
22 Chase, 560F.3d at 830-31 (emphasisadded) (citing, interalia,
United States v. Lamoreaux, 422F.3d 750, 756 (8thCir. 2005)
(approvingconsiderationofmilitaryservice,pregnancyof
defendant'swifeand his need to carefor his children, and his
"entrepreneurialspirit".
23 !d. at 832(emphasis in original).
24 460F.3d 191 (2dCir. 2008).
25 Id. at 194.
26 Id. (citingUSSG 5HJ.2,5Hl.3,5Hl.5,5H1.6,5Hl.lI).
27/d. at 194-95.
28/d. (emphasisadded, citationsomitted).
29 520F.3d 87, 93-95 (Ist Cir. 2008).
30 Id. at 93.
31 Id. (citationsomitted).
32 United States v. Collington, 461 F.3d 805, 807 (6thCir. 2006).
33 Id. at 809.
34 Rita, 127 S.Ct. at2468.
35 United States v. Olhovsky, 562 F.3d 530, 549-50(3d Cir. 2009).
36 Id. at551 (emphasis in original).
37
18 U.S.C.3553(a).
Marjorie A. Meyers is the Federal Public Defender for the
Southern District of Texas. This article previously appeared in
the Summer 2009 issue of The Bulletin, the publication of the
Federal Public Defender for the Southern District of Texas .
THE DEFENDER @
YOU, TOO,
CAN WIN APAROLE
REVOCATION HEARING
~ ~ L,o yooJ o ~ lc\-)
If you are a young lawyer, you probably have a little
morefreetimethanyouwouldliketoadmitandparole
revocationhearingsareagreatwaytofill thattime.
First,eachhearingisasurefireopportunitytomakean
immediateandpositive impacton someone'slife. The
peopleyouwillserveinthissettinghavebeenin andout
ofprisonsandhalfwayhousesformostoftheirlives. A
majoritysufferfromsometypeofmentalillness. Many
arehomeless, havenofamilies, and haveseen few kind
faces in their long careers. Practically speaking, you
will getto regularlycross-examine witnesses andlearn
howto builda mitigationcaseon a shorttimeline- all
necessaryskillsthat,whenyou arenewtothepractice,
definitelyneed sharpening.
WHEN YOU GET YOUR FIRST APPOINTMENT, THIS IS WHAT HAPPENS-
Someone from the Texas Board ofPardons and Paroles will
\
canyouandsay,"Wehaveahearingscheduledfor(date,time)
atthe Harris CountyJai l. Are you available?" You will say,
"Yes,"andtheywillstartrattlingoffawholelotofinformation
including the name and number for the parole officer and
hearingofficerandyouwillhavenoideawhattheyaretalking
about. Justwrite it all down.
Immediately fill out and fax the Attorney Fee Affidavit to
Austin. You cannottake action on the case until you have
doneso.
Pickup the phoneand can the parole officer. Ten them you
havejustbeenappointedto thecaseandyouneed them to fax
therevocationpacket. Warning: startcallingthe P.O. onDay
Onebecausethe chancesofyoucatchingthemin theiroffices
areslimtonone. Donotbealarmedifittakesyouthreeorfour
phonecallstogetwhatyouneed.
TheRevocationPacket. Thefirstpagewill likelybetheparole
certificate. Lookfor ahandwrittendateatthebottom- thiswill
be the date the person is scheduled to discharge from parole.
The Certificate ofParole will have the terms and conditions
listed. There win also be aviolation report. This is whatthe
paroleofficergeneratesonceheorsheissuesawarrant. Avery
important page is the Adjustment Statement. It is a onepage
document the parole officer prepares to show how well your
clienthas beendoingwhileonsupervision.
GovisitthenewclientASAP. Unfortunately,therearelawyers
who lay eyesupontheirclientsfor the first time thedayofthe
hearing. Do not do this. I try to waita day to hopefully get
the revocation packet from the parole officerso I can have a
more productive clientvisit, but time is a luxury because you
will usually have about aonly week to prepare. Find out(in
addition to the facts surrounding the alleged violation): how
far the person went in school, whether they were in special
education classes, whether they can read (and do not take
theirwordfor itifyou havedoubts),whatkindsofmedication
theytake, and whetherthey receive orhaveapplied forSocial
Security Disability. Discuss whether your client has a safe
placetowhichheorshecanbereleasedandstartcallingMom,
AuntBetty,andCousinDan as soonas you leavethejail.
Ifyour client has special needs and cannothelp you at all,
call the P.O.andask iftheyhaveanycontactinformationfor
friends and family. Sometimes the P.O.' s are helpful and
compassionatesocialworkertypesso itdoesnothurttoask.
You can usually get a short continuance ifyou need one. If
-I difficultiesdeveloporyouneedmoretimeforwhateverreason,
callthehearingofficerand letthemknowyouneedmoretime.
Heorshewillfaxyou the formforthecontinuancerequestand
as longas you have agood enough reasonyou should be able
togetone.
t(2 You can and should subpoena witnesses. Ifyou want to
o subpoenasomeone,tentheP.O.byphoneand/orfax andthey
willdoit.
I
The Hearing. As a courtesy to all involved, the revocation
hearings are held in the luxuriousattorney visitboothsatthe
jail. Arriveearlysoyoucanseeyourclientbeforethe parole
andhearingofficersarrive. Haveyourfee affidavitfilled out
(estimate about a halfhour for the hearing and then correct
youraffidavitafterthe hearing ifyou need to). My hearings
havelasted anywherefrom 15 minutes to 4hours,butusually
they are aboutan hour. The Hearing Officer will go on the
recordandaskyouto sweartothefee affidavit. Heorshewill
then say,"Wearehereto conductahearingregardingClient.
Therearetwopartstoarevocationhearing. Thefirstpartis to
determinewhetherornota preponderanceofevidence exists
to believethatyouhaveviolatedoneormoreofthetermsand
conditions ofyour release. IfI do so fmd, we will continue
with the adjustment phase ofthe hearing where we will see
how you have been doing since your release and what kind
ofplan is in place for the future. Counsel, do you wish to
waivethereadingoftherights?" Yousay,"yes"becauseyou
have already gone over your client's rights with him or her.
Thehearing officerwincontinue,"Yourattorneyhas waived
the fonnal reading ofthe rights. Client, you are accused of
violating one or more ofthe terms and conditions ofyour
release." Hearingofficerwill read the accusations and ask,"
Doyou admitordeny?"Yousay,"deny." TheP.O.willoffer
the certificateofparole and otherdocumentsand,beforeyou
know it, the hearing officer will find by a preponderance of
evidencethatyourclientviolatedparole. If,however,youcan
putup agooddefenseto theviolationinyourcrossoftheP.O.
and any supportingwitnesses, move to close the hearingand
askfora"nofinding." Youmightgetlucky. Ifyouarenotso
lucky,theadjustmentphaseof thehearingisagoodtimeto let
yourclienttestify about how he orshewants a chance to do
betterand to ask formercywithyourguidance.
\0
Keeptrack ofyourtime. Don' tworry:thepaperworkwill get
quickerandeasierwith practice. Sendyourvoucherin assoon
as youcan. It will take the boardabout90daysto payyou,so
the sooneryoumail itin thebetter.
Now that you are vaguely familiar with the razzle-dazzle
world ofparolerevocations,call the TexasBoardofPardons
and Paroles at512-406-5452and they will gladly send you a
registrationpacketinthemail. Thisisbyno meansalucrative
area ofpractice, but you will getto help a lotofpeoplewho
desperatelyneeditandsharpenyourskills,to boot.
Sunshine L. Swallers is a criminal defense attorney and is on
the HCCLA Board ofDirectors. She likes wajJles, tamales, sky
diving, and libraries.
THE DEfENDER @
HarrisCountyCriminalLawyersAssociation
PostOfficeBox924523
713.227.2404
HoustonTX 77292-4523 Fax: 713.699.3727
====================www.hccla.org
FORIMMEDIATERELEASE
THEHARRISCOUNTYCRIMINALLAWYERSASSOCIATION'S
STATEMENTREGARDINGTHENEWDWIDIVERSIONPROGRAM
TheHarrisCountyCriminalLawyersAssociationstandsunitedagainsttheDWI
Diversionprogramannouncedtodaybythe DistrictAttorney'sOffice. Whatappearson
the surfaceto be an actofbenevolenceisin factanassaultontheconstitutionalrights of
all oftheindividualsaccusedofDWI.
Thisprogramwillbe forcedonan unsuspectinganduninformedaccusedbywayofan
overlycoercivepleabargain. Underthenewprogramdefendantswillbeofferedthe
diversionprogramoralternatively30daysinjail. Currentlythereareveryfewjailtime
offerstoresolveafirsttimeDWI. TheactionbytheDistrictAttorneysofficeispunitive
andnotinkeepingwiththeirdutytoseethatjusticeis done.
Thediversionprogramforces defendantsto confessandenterapleaofguiltythatwill
resultinjailtimeiftheyareunabletoliveupto therequirementsoftheprogram. The
diversionprogramrequiresthoseparticipatingto give up anyandallprotections
providedbytheUS andTexas Constitution. Thisprogramisanaffrontto theadversary
processandstepsontheconstitutionalprotectionsthatallcitizensenjoy.
HCCLArepeatedlyaskedtomeetwiththe DistrictAttorneyaboutthisprogram.
AlthoughtheDA'sofficearrangedmorethanonemeetingwiththejudgesinprivatethey
refusedtoreceiveinputfromthedefensebar. Theentiredefensebarwasunethically
excludedfromthis one-sidedconversation.
!) lifEDEFENDER
HarrisCountyCriminalLawyersAssociation
Post Office Box 924523
713.227.2404
Houston TX 77292-4523
Fax: 713.699.3727
www.hccla.org
August 10, 2009
Hon. Jean Hughes,
I am writing on behalf of the more than 550 members of the Harris County Criminal Lawyers Association. HCCLA is
aware that the District Attorney's Office has discussed at least one policy change with the county court judiciary (Le. their
new DIVERT program). We are also aware that the District Attorney's Office met with judges, individually and as a
group, for the purposes of advising the judges of their new policies, to answer questions from the judges, and to formulate
courtroom procedures for the implementation of their new program. Neither HCCLA, nor the defense bar in general, was
informed of or invited to these meetings. Further, no public notice of these meetings was posted or circulated.
HCCLA is seriously concerned that these meetings constitute prohibited ex parte communications between the District
Attorney's Office and the jUdiciary. There is concern that these ex parte policy discussions were for the purpose,
implicitly or explicitly, of recruiting support from the judiciary with respect to matters that affect thousands to tens of
thousands of pending and future cases. Our concern is obviously that such ex parte discussions appear to and likely
violate the judiciary's duty to remain neutral and detached -- at least in appearance, if not also in substance. Such
discussions clearly create an appearance that the judiciary is involved in supporting the prosecutorial policies and
programs.
While the District Attorney is certainly able to set her own policies, those policies should not be staffed with or discussed
with the judiciary absent an open meeting in which the agenda is made public prior to the meeting. Allowing the District
Attorney to meet privately with the judiciary to discuss policy and its impact upon the courts and individual cases without
the presence of the defense bar violates a variety of Judicial Canons.
We are aware that some view these discussions and meetings as merely "informational" and therefore acceptable.
HCCLA rejects that view. While some of the meeting may be "informational" in the sense that information is provided,
there is no exception to the prohibition on ex parte communications on the basis that the information is merely
informative. Calling it merely "informational" sounds good, but it ignores the substance. The recent meetings extended
beyond "informational" when the District Attorney's office sought the cooperation of the judiciary for implementation
purposes as well as procedural purposes.
We suspect that if HCCLA scheduled a meeting for the defense bar to ex parte advise, the judiciary, as a group, about, for
the sake of argument, concerns with the DIVERT program or to encourage the judiciary not to support such a program,
the District Attorney's office would likely make the same claim we now make that such communications were improperly
ex parte. It should be no different when such meetings are scheduled by the District Attorney's office.
If there are to be any future meetings or discussions with the District Attorney's office, the defense bar, as represented by
HCCLA, as weB as the broader defense bar, should be given advance notice of, and an opportunity to be included in any
such meetings. To do otherwise is to improperly foster the continuing belief among the public and many lawyers that far
too many of the Harris County jUdiciary are little more than an extension of the District Attorney's Office. It fosters an
appearance of partiality and impropriety to exclude the defense bar from such meetings -- something we hope is not
supported by the Harris County Judiciary.
Respectfully.
QmlA/XdL
U JoAnne Musick
President
cc: Hon. Patricia Lykos, District Attorney
THE DEFEIIER
Wendy Miller (center/rant) appeard with Milby High
School students Luis Morales and Maria Flores on
Great Day Houston with Deborah Duncan (center back)
to discuss Teen Dating Violence Awareness.
Research World Unlimited
Private Investigation Company
o ~ a Dee Rafteet
Private Investigator IIA-08232
Mitigation Specialist Criminal Investigations
Minority Investigations (Black/Hispanic)
Bilingual (Spanish/French)
713-869-7300 ofe E-mail: sonjadee@aol.eom
713-868-3850 fax PO Box 111506 Houston 77293
THE DEFENDER
Teen Dating Violence Awareness has been a community service
project new to HCCLA during the 2008-09 bar year. This project,
which carries the slogan: "It Shouldn't Kill a Texas Teen to Date,"
has included classroom sessions, television programs and other
forms of outreach intended to teach teens that dating violence
should not be tolerated.
Local attorneys and judges have hosted eight classroom sessions
at local high schools and community events. Sessions also have
been conducted for teen shelter residents at the Houston Area
Women's Center. Topics have included understanding the
differences between a healthy and unhealthy relationship, and
how to handle a break-up with a potentially violent person.
HCCLA and the Houston Young Lawyers Association (HYLA)
also have helped coordinate two separate segments on Houston
television stations. HCCLA devoted an entire episode of
Reasonable Doubt to the teen dating violence topic earlier this
year. Speakers included Judge Judy Warne, local attorneys Kim
Ogg, Beth Barron and Jane Waters, and students from Milby High
and the High School for Law Enforcement and Criminal Justice.
Our speakers subsequently discussed teen dating violence in a
segment that aired on Great Day Houston on KHOU-TV.
HCCLA also participated in an audience "talk back" at Stages
Repertory Theatre following a performance of The Yellow
Dress during Teen Dating Violence Awareness week (which
was February 2-6).
In addition to HCCLA and HYLA, support for the Teen Dating
Violence Awareness events has come from the Lanier Law Finn
and the Texas Young Lawyers Association.
the Death ofOralArgument
By Patrick F. McCann
In recent years, the Courts of Appeals have made, after prodding by The fear of doing harm
the defense bar and the general civil bar, significant efforts to revive
oral argument after the disastrous implementation of the Texas Rule of
Appellate Procedure that made such argument discretionary. However,
despite repeated pleas and exhortations that "we really will" grant oral
argument, many of those same judges expressed at a recent training
some frustration that their offer (and it is a sincere one since I can tell
you that in almost 50 percent of the cases where I have asked for it or for
a reconsideration it has been granted) has apparently fallen on deaf ears.
One court indicated that argument in criminal cases is requested only 20
percent of the time, is granted in half those cases and, yet, more than 40
percent of the time the defense does not show up! So, in the end , they
(the Courts, or at least that one) are seeing perhaps one in 20 criminal
cases where the appellant's counsel shows up and speaks for his or her
client. On the off chance that did not register, let me repeat: one in 20.
Oral argument is a perishable skill, one that does not improve by doing it
less. If one were trying a case, and in only one in 20 or so cases did one
show up for closing argument, one would arguably have done less than
commendable service to the client. So, please allow me to make, first , a
plea to all who do criminal appeals to reconsider your views and approach
on oral argument. Second, let me bere and now make a pledge along
with my plea: I will find people to help anyone prepare for argument, for
everything from mock oral panels to reviews of the brief by my friends (I
know I have one or two somewhere) who are willing to donate time and
effort, to suggestions for additional briefing post-submission or thoughts
about your best tactics for specific panels from some of the more capable
appellate attorneys around. There are people willing and able to help, so
please be willing to consider asking tbem, or asking someone to ask them,
because this is something that I believe needs to change.
Why even do oral argument?
The Power of One
One voice matters. One opportunity to change
one mind matters. There are only three justices
on a state panel, and these panels are composed,
first and foremost, of human beings who enjoy
and respect a well-honed argument as much as
anyone else docs. They are people, and if one
shows up and delivers, they will listen. Perhaps
they will not change a position, but then
again,perhaps they will. All it takes is one to
sway over to your position, and one has a dissent
that may result in re-hearing or discretionary
review being granted. The only certain
guarantee that one has in thi s business is that if
we do not consider it important enough to show
up and argue, no one else will listen. One chance
e x i s ~ to directly confront those who will decide
your client's life...why would we not want the
chance to persuade them?
What exactly does anyone think will happen at oral argument...that one
will perform so badly that the panel will bench warrant your client back
to face them and sentence him to more years in prison? Our clients are
already convicted ... we are not the danger here, and if anything, we have
absolutely nothing to lose by getting a chance to look a justice in the eye
and explain why our reasoning is sound and should result in our client's
freedom .
Who will speak for our clients if not us?
We are the last chance our client typically has. We all know the odds of
reversal are slim; they are slimmer still when we do not choose to speak
for the man or woman whose life is in our hands. For most of their lives,
no one has ever spoken to anyone in power for them; we should not add
to that list of the silent. We ought, in a better world, to be able to look
their mother or wife or child in the eye and say, "\ was there, I stood
up, and I spoke for your loved one." It's not much, some days, but it is
something.
We have all (myself included) complained that the Courts of Appeals
have become fairly complacent havens for the State to tum to whenever
a trial goes awry. Yet, perhaps we can improve the quality of our
advocacy, and, ultimately, the results for those we represent. We have
nothing to lose by doing so, and I submit, very respectfully, something
quite important to gain. My number for those who take me up on this is
listed below, and I hope I can count on you all to return the favor so that
together we may change a few minds.
Patrick F. McCann is a past president ofHCCLA, an adjunct professor
at Texas Southern University, and practices in Houston and Fort Bend
County. Those wishing his assistance with oral argument preparation
can reach him at 713-223-3805.
for HOUSTON CITY COUNCIL DISTRICT A
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THE DEFENDER
Experience. Diversity. Fairness.
Mark Diaz understands that what happens inside a criminal courtroom can have dramatic,
long-standing effects on an individual's life and future. He recognizes that each case is as
uniqueas the peopleinvolved. Heworkstoensure all his clients aretreatedfairly in thecourt
oflaw.
MarkDiazwantstobringahigherleveloffairnesstotheothersideofthebenchbyworkingto
ensureall defendantsreceivefairtreatmentandappropriatesentencing. SupportMarkDiazin
his campaign forJudgeCountyCriminal CourtatLaw No. 11.
Born and raised in Houston
Has successfullypracticedcriminal lawhereformorethat10
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Officer, GalvestonCountyCriminal DefenseLawyersAssociation
CertifiedStateBarofTexas 1998
Thurgood Marshall School ofLaw 1998;JurisDoctor
AdmittedtopracticeUnitedStatesSouthernDistrict
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Investigative Corner: Di9ita1 DNA
by Jim Willis
THE DEFENDER @
As we continue through the maze that is the information highway, 1want
to highlight general topics that may spark some interest in the criminal
defense arena. A catchy phrase circulating the investigative world these
days is "digital DNA." All the computers, cell devices, external hard
drives, flash drives, jump drives, internet servers, iPods, hand held and
gaming devices, digital cameras, social pagers, plus many more devices
and sites continue to become permanent fixtures in people's everyday
life.
Each device that we come across has the potential to be a very important
piece of evidence in any case. Police investigators are quickly seeking
out digital devices on their targets to collect digital DNA to assist them in
building stronger cases. Defense lawyers need to know how to manage
digital DNA so that it does not become contaminated, destroyed or,
worse, used against them in court. Ask your clients about all of their
digital devices and then begin to collect each piece.
Computer forensics may be an unknown and mysterious discipline to
many attorneys, but it is easy to avoid the most common procedural
mistakes. First, use a computer forensic examiner and do not rely on
your own computer skills. Second, work with your expert to have digital
copies made of all data on all devices so that a complete assessment can
be made. Your client may state, "I have erased all the images and files."
Do not be fooled. Many times deleted data can easily be restored and
used as evidence.
Last, choose your forensics expert carefully. Ensure that the expert has
the technical knowledge, fully understands electronic evidence, and has
references.
ForensicScience
Resources
CrimeSceneReconstrucUon
FerenslcScienceConsunatlon
DNAAnalysISConsunauon
CrimeScenelovesduadon
BloodstainPanernAnalysis
ShoeprlntIdeOUflcatlen
HairExaminationConsunauon
latemFlngerprlmDevelopment
SerologyAnarvsls
GeorgeSchiro,MS,FABC
ConslHlngFerenslcScientist
[33113222124
E-mail:GJschlro@cs.cem
As I mentioned in the last Investigative Comer ("The 411 on Cell Phone
Records"), you can use cell phones to establish an alibi for your client.
Cell phones and cell towers are constantly communicating with each
other. Anytime a cell device is used it sends a locating signal to a cell
tower. With a properly executed subpoena or court order (and which one
you need depends on the cell provider), you can get cell tower data from
the carrier. This information will pinpoint a location, usually within a
three-mile radius. If there are more than one cell towers in the area, the
three-mile radius begins to decrease and the client's exact location can
be narrowed.
Interpreting the cell tower data may seem complicated at first glance,
but with the right assistance it proves to be a valuable investigative tool
for you and your client. If you need assistance with the language for the
subpoena or the court order, please do not hesitate to contact me.
These topics are important for any criminal defense case. 1 have just
skimmed the surface when it comes to digital DNA and cell tower
information. As you begin to develop your criminal defense theories
and find yourself needing additional support, contact your investigator
for assistance.
In the next Investigative Comer, I will discuss the role ofthe investigator
in the criminal defense process.
Jim Willis is a private investigator with Benken & Associates. He may
be reached at 7J 3-223-4051 andjwillispi@aol.com.
PRESORTED STANDARD
U.S. POSTAGE PAID
HOUSTON,TEXAS
PERMIT NO. 11500
THE DEFENDER
PO Box 924523
Houston TX 772924523
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