Harris County Criminal Lawyers Association

We are UNLESS

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we are unless

By: Rick Oliver
HCCLA Member and Defender Contributor

The presumption of innocence is commonly understood to be a legal term of art. If that be the case, then, the question becomes whether art really does imitate life in this business.

In theory, the presumption of innocence is indeed a term of art in the sense that it has a specific meaning within the legal field and amongst its practitioners. The presumption is more than just a phrase connoting a specified meaning, though. It is the foundation upon which our niche in this profession has been built. It is the keystone principle that maintains the integrity of our system of justice. It is the fiber in the connective tissue that binds us all to whatever construct we perceive of as our social contract.

In reality, the presumption of innocence is the Alpha and the Omega. Without it there is no justice. Without it, no trust. Without it there is no reason to honor the terms of any social contract; real or imagined.

But, the juxtaposition of the presumption of innocence with other legal terms of art brings a sad reality into focus. The “State” is a good and telling example. The truth is there is no “State.” It has no address. No postal zip code. There are no pearly gates that separate the “State’s” lushly manicured grounds and towering white spires from the citizen and his shanty town. There is no lone figurehead reminiscent of Reagan or Stalin or Margaret Thatcher or Thor. It only exists insofar as society allows it to exist. The “State” is a legal term of art, just like the presumption of innocence.

Except, it is nothing like the presumption of innocence. The “State” is an illusory fable penned by our Founding Fathers and passed from one generation of white-hatted do-gooders to the next. It is drafter and signatory to the social contract to which each of us is bound. It is the aggrieved party and the enforcer whose job it is to redress perceived contractual transgressions. The “State” implies more than it says. The “State” has a long and ranging arm. The “State” wields a big and often wretched stick. The “State,” by and through its agents, has within it the power to chuckle at Oppenheimer’s quip: “Now I am become Death, the Destroyer of Worlds.” In short, the “State” has within its dominion the propensity for a self-righteous and trembling gravitas.

By way of contrast, there is the presumption of innocence. There can be little doubt the presumption of innocence has been turned on its head. It has been eulogized as a dead letter; its demise feted in the halls of the “State.” It has been heckled and jeered and burned in effigy. In truth, the presumption of innocence is at odds with its maker, and because of that, no longer exists.

Our citizens accused are more likely to enjoy unicorns and leprechauns and purple rhinos than they are the presumption of innocence. It has been reduced to a sad and consensual hallucination; the artifice of sophistries. But, what is profoundly more disheartening than its demise is the reality that we—the defense bar—have helped to kill it.

Not affirmatively, of course. We haven’t exercised the audacity the “State” so often has when it, for example, hides exculpatory evidence. We haven’t plotted—with maniacal attention to detail—the murder of the presumption of innocence, intentionally or knowingly, or with malice aforethought. Not even death by a thousand pricks is to blame for its demise, at least insofar as those pricks are we.

Instead, we have sharpened the guillotine of the “State” with our neglect. Ironically, all we have neglected is but a single word. But, as Mark Twain once remarked, “The difference between a word and the right word is like the difference between lighting and a lighting bug.”

As codified, the presumption of innocence, that useless ramble, suggests that: “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.”[i]

Close your eyes and say it aloud. Now, imagine yourself standing tall before the venire, sweating and preaching and rambling for the fifteen minutes the court has conferred upon you like a soiled gift. Look down at your imaginary outline to where the presumption of innocence necessarily precedes the burden of proof. Ask a pretend person to re-state the presumption of innocence in the shorthand we all so often hear.

“Innocent [fill in the blank] proven guilty.”

If your febrile imagination inserted the word “until” between the brackets, then you, like so many of us, have the blood of the presumption of innocence on your hands, too.

Resist the temptation to roll your eyes and consider the following: the word “until” is a conjunction that is used to refer to the time that took place or passed before an event or incident. It means “up to the time” or “till the time.” It is also used to show one’s aim of finishing a job or task even if there are things that make accomplishing it difficult.

The word “unless,” on the other hand, is a conjunction that is used to refer to a condition which makes the event or incident that precedes it impossible. It has the same connotation as the words “if” and “except.[ii]”

If your instinctual response can be summarized by resort to the familiar refrain that a comparison of unless and until yields a difference without a distinction, you are, in my humble opinion, out of your goddamned mind. The words unless and until are not tautological. They do not mean the same thing. They should only be used together when the situation calls for both a context of time and a precondition[iii]. Using the word “until” suggests the result is an eventuality. Using the word “unless” suggests there is some condition precedent that must be satisfied before that result may occur.

Imagine you’re watching an old black and white docuseries memorializing the great Clarence Darrow and one of his magnificent rites of defense. Imagine further he is engaged in a heated exchange with a corrupt prosecutor regarding the rights of the accused. Imagine Darrow’s impassioned plea in support of a vigorous and competent defense:

“He is presumed to be innocent UNLESS proven guilty,” Darrow might shout.

“Until, Mr. Darrow. Until he’s proven guilty.”

Now tell me you don’t feel the difference. In the example, the prosecutor says a lot without saying much. An economy of words does not necessarily imply an economy of meaning. And, it should not be difficult to divine which of these incarnations ought to be championed by those whose job it is to ensure that justice is done according to the law of the land, as it is written, and as it was intended.

It is also important to highlight the obvious. This business we have chosen is an adversarial one. We are competitors, in fact and in theory. We work with the same facts in an attempt to deliver different products. Woe befall the lawyer who fails to appreciate the reality that an aspect of what we do includes the idea of a sales pitch. Even worse is the thought that some lawyer mistakenly assume his or her pitch is limited by what they believe the facts have or have not proven. We incorporate the pitch in the way we dress and the way we dress our clients. We incorporate the pitch in the way we address the courts and the way we address its juries. We organize and pander to the rightful pageantry of the presumption of innocence, forgetting somehow that the devil is almost always in the details. The end result is that we are allowing the “State” to capitalize on our neglect. We are conceding the sale before either side utters so much as a single word.

WE are UNLESS and THEY are UNTIL.

The challenge of the defense is to convince the venire that the determination of guilt has yet to be made. In other words, we want them to understand and believe that the accused is presumed to be innocent unless the facts prove otherwise. The challenge of the “State” is to convince those same people that they wouldn’t be wasting their time if the guilt of the accused were not already assured. In other words, they want them to believe that all that is required of them is that they wait until the end of the “State’s” presentation before properly returning a verdict of guilt.

Our challenge is consonant with the spirit of the law. Theirs reflects the aim of those engaged in adversarial competition where the results are almost always zero sum. Whether the conflation is the result of intentional complicity or mutual negligence is irrelevant. The point is it is happening. It is diminishing the “State’s” burden of proof (another term of art). It is poisoning our juries. It is dooming the prospects of our citizens accused. Make no mistake, with a single word we have allowed the “State” to stack the deck against us.

In marketing circles the terms is referred to as “presupposition.” Presupposition is often utilized by using words and language that indicate your assumption that your offer has already been accepted. It is a technique that is used both consciously and subconsciously[iv]. In the context of the legal field, it is, quite simply, tradecraft. And, what is truly disturbing is that we’re not just allowing this to happen. We are perpetuating its dissemination and wide-spread acceptance. We act like it’s no big deal.

The impact of word choice is not limited by the ability of the audience to consciously discern subtle differences, either. Researchers have long known that expectations influence cognitions and behaviors[v]. When we expect a particular outcome, we automatically set in motion a chain of cognitions and behaviors to produce that outcome—and misattribute its cause[vi]. Although expectancies can develop in many ways, they are often the product of suggestion. Suggestions can come from other people or from the environment; they can be cultivated in the present or drawn from the past; and they can be deliberate or not deliberate[vii]. Suggestion can influence implicit learning and lead to the enhancement or impairment of memory[viii]. Further, suggestion can also influence evaluations of a product above and beyond its intrinsic features[ix]. Suggestions, particularly those that people do not realize they are communicating, can transmit expectations to others and thereby influence their thoughts and behaviors[x].

Clearly, the “State” has not taken a chainsaw to our beloved presumption of innocence. Rather, it appears the instrument used were more likely a scalpel. Its aim was specific and its incision precise. The product is a facelift that has altered the fundamental character of the presumption of innocence. A single word has undermined its promise. Now, there is a presumption of guilt and that presumption is a self-fulfilling prophecy.

What the literature suggests is that when the inaccurate beliefs of different perceivers about a given idea are similar, their individual self-fulfilling effects can accumulate such that their combined self-fulfilling influences may be more powerful than any of their individual self-fulfilling influences. That is, the similar and inaccurate beliefs held by multiple perceivers may potentiate one another’s self-fulfilling effects, a process referred to as synergistic accumulation[xi]. So, if even one of your potential jurors internalizes the conflation to encourage a presumption of guilt, the die may have already been cast.

Fortunately, the literature also suggests that members of stereotyped groups may be shielded from confirming negative stereotypes if they are also exposed to positive beliefs. In this example the “stereotyped group” is the citizen accused. The negative stereotype is that a citizen wouldn’t be accused unless he was guilty. The positive belief is the assertion that there is a more redeeming and legally correct definition of the presumption of innocence. To paraphrase Miracle Max, what this ultimately means is that the presumption of innocence is only mostly dead. There’s a difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there’s usually only one thing you can do[xii].

What we can do—what we must do—is right the ship. The presumption of innocence is the ballast that brings balance to the system. For some time now, the ship has been taking on water. As its designated stewards, it is time we all started bailing that water.

The remedy is simple: object. Object on the basis that the conflation of unless with until with respect to the presumption of innocence is a misstatement of the law. It is. Object on the basis that use of the word until is a comment on the weight of the evidence. It is. Object on the basis that use of the word until effectively reduces (if not eliminates) the “State’s” burden of proof. It does.

Currently, it appears we are unwittingly content to go down the ship. A simple natural language search for the phrase “innocent until proven guilty” returned only 99 Texas cases. A non-exhaustive review of those cases revealed almost nothing directly on-point. One of them was, and its analysis was telling. In Randolph v. State, the appellant complained that the trial judge violated his due process rights when it suggested to the venire that he was “innocent until proven guilty[xiii].” The COA noted that “[t]he Texas Court of Criminal Appeals…has not drawn a distinction between “unless” and “until” when those terms are used in connection with the presumption of innocence[xiv]. Then, the COA basically shrugged its collective shoulders and, in effect, said, “Look, we all do it all the time; what’s the big deal!?!”[xv] After all, trial counsel did not object to it when he had the chance[xvi]. And, the COA observed that “nothing in the record indicates that the venire meaningfully distinguished “unless” from “until” in the context in which the trial court used it during voir dire such that the use of “until” negatively affected [appellant’s] presumption of innocence.”[xvii] Nothing in the record, huh? With all due respect to the First Court of Appeals: no shit it’s not in the record.

The issue is not what is being put on the record while the venire is attentively seated. The issue is what the venire is bringing with them—subconsciously or otherwise—as they file in to the room. When we allow the law to be misquoted in the manner it currently is we effectively endorse a subliminal message that is broadcast to the entire world. The message we send is that trials are but a mere formality. The message we send is that trials are not a search for the truth. The message we send is that trial is simply the final wait to be endured before the accused can be rent asunder. The message we send is that convictions are an ultimate imperative. In an adversarial system such as ours, it is hard to fathom how we can expect to prevail over the “State” when we allow them to start the race at the finish line. That is the difference between unless and until.

We are the purveyors of the presumption of innocence. We are its stewards. We have to do better.

We are unless…until we’re not.

[i] Tex. Code Crim. Proc. art. 38.03; Tex. Pen. Code §2.01

[ii] M., Emelda (2011). Difference Between Until and Unless. Retrieved from http://www.differencebetween.net/language/grammar-language/difference-between-until-and-unless/

[iii] Unless vs. Until. Retrieved from http://www.diffen.com/difference/Unless_vs_Until

[iv] The Rule of Expectations—The Impact of Suggestion. Retrieved from http://westsidetoastmasters.com/resources/laws_persuasion/chap10.html.

[v] Michael, R.B., Garry, M., Kirsch, I. (2012). Suggestion, Cognition, and Behavior. Current Directions in Psychological Science, 21(3) 151-156.

[vi] Id. (citing Kirsch, I. (1997). Response expectancy theory and application: A decennial review. Applied & Preventive Psychology, 6, 69-79. Doi: 10.1016/S0962-1849(05)80012-5; Kirsch, I. (2004). Conditioning, expectancy, and the placebo effect: Comment on Stewart-Williams and Podd (2004). Psychological Bulletin, 130, 341-343. Doi: 10.1037/0033-2909.130.2.341)

[vii] Id. (citing Stewart-Williams, S., & Podd, J. (2004). The placebo effect: Dissolving the expectancy versus conditioning debate. Psychological Bulletin, 130, 324-340. Doi: 10.1037/0033-2909.130.2.341)

[viii] Id.

[ix] Id.

[x] Id.

[xi] Madon, S., Guyll, M., Spoth, R., Willard, J. (2004). Self-Fulfilling Prophecies: the Synergistic Accumulative Effect of Parents’ Beliefs on Children’s Drinking Behavior. Psychological Science, Vol. 15—No. 12, 837-845

[xii] The Princess Bride. Dir. Rob Reiner. Twentieth Century Fox Film Corporation, et al, 1987. Film.

[xiii] Randolph v. State, 2008 Tex. App. LEXIS 9192, No. 01-08-00266-CR, *1 (Tex. App.—Houston [1st Dist.] 2008, unpub.)

[xiv] Id. at *8

[xv] Walters v. State, 247 S.W.3d 204, 210 (Tex. Crim. App. 2007); Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998); Hill v. State, 955 S.W.2d 96, 100 (Tex. Crim. App. 1997); Mays v. State, 726 S.W.2d 937, 951 (Tex. Crim. App. 1986); Wiseman v. State, 223 S.W.3d 45, 50 (Tex .App.—Houston [1st Dist.] 2006, pet ref’d); Deck v. Missouri, 544 U.S. 622, 630, 125 S. Ct. 2007, 2013, 161 L. Ed. 2d 953 (2005); Wynn v. State, 219 S.W.3d 54, 59 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

[xvi] See Randolph, 2008 Tex. App. at *6.

[xvii] Id. at *8

Right to Resist an Illegal Arrest? Nope!

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Guest Blog by Millie Thompson, HCCLA member and Defender of the Constitution

The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—indeed, for every suspect released.

Libertarian-bent people repeatedly ask me the following leading question, expecting me to confirm their conclusion: We have a Constitutional right to resist an illegal arrest, right?

Bloody_Sunday-Alabama_police_attackNo, you don’t. There was a common law right to resist, set forth in the Supreme Court case Bad Elk v. United States, 177 U.S. 529 (1900). That right was destroyed by the courts during the backlash against the Civil Rights Movement.

The courts stripped citizens of the right to resist an unlawful arrest, explaining that people should seek redress in court and sue civilly for an unlawful seizure. Qualified Immunity, however, destroys your ability to sue for an unlawful arrest based on mistaken identity.

On the one hand, you can’t resist them. On the other, you have no right to complain later if they were merely mistaken about arresting you.

Compare 1 with 2:

1 – United States v. Danehy, 680 F.2d 1311 (11th Cir. 1982):

Speaking for the court in United States v. Johnson, 542 F.2d 230, 233 (5th Cir. 1976), Judge Morgan evaluated the current vitality 1316*1316 of the common law right to forcibly resist unlawful arrest. He concluded that old Fifth Circuit case law on the subject had been “sapped of its precedential value” by the persuasive authority of decisions from the other courts of appeals. Those decisions recognize that the common law right to resist an arrest that is not based upon probable cause, suited though it may have been to a past era, has no significant role to play in our own society where ready access to the courts is available to redress such police misconduct. See, e.g., United States v. Cunningham, 509 F.2d 961, 963 (D.C. Cir. 1975); United States v. Martinez, 465 F.2d 79, 82 (2d Cir. 1972); United States v. Simon, 409 F.2d 474, 477 (7th Cir.), cert. denied, 396 U.S. 829, 90 S.Ct. 79, 24 L.Ed.2d 79 (1969). Cf. United States v. Ferrone, 438 F.2d 381, 389-90 (3d Cir.), cert. denied, 402 U.S. 1008, 91 S.Ct. 2188, 29 L.Ed.2d 430 (1971) (no right to resist search pursuant to invalid search warrant). But see United States v. Moore, 483 F.2d 1361, 1364 (9th Cir. 1973) (dictum). Although there may be some residual role for the common law right where it appears that the arresting officer is engaged in a “frolic of his own,” see United States v. Martinez, 465 F.2d at 82, there was no such situation here.

2 – Baker v. McCollan, 443 U.S. 137 (1979):

Respondent’s innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment in most if not all jurisdictions, is largely irrelevant to his claim of deprivation of liberty without due process of law.[4] The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—indeed, for every suspect released. Nor are the manifold procedural protections afforded criminal defendants under the Bill of Rights “without limits.” Patterson v. New York, 432 U. S. 197, 208 (1977). “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” Ibid.

The Fourteenth Amendment does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished “without due process of law.”

Experts will tell you that the fight-or-flight instinct kicks in whenever someone is in a high stress situation, like, for example, when a police officer puts you in a choke hold. You get tunnel vision. Your body shuts down the processes associated with digestion and rational thought, and your body ramps up the systems that will help you outrun the lion or fight the home invader.

At rest, you can process messages like “put your hands behind your back.” When you’re experiencing the fight-or-flight response, your brain isn’t working in a way that allows proper computation of that message.

The law on resisting arrest is illogical on two fronts: First, the whole reason courts have gotten rid of it – you can sue – is false. No, you can’t sue. Those officers have immunity from suit. Courts also point to the right to a speedy trial. That right is meaningless. There are people sitting in county jails everywhere who can’t make bail, were arrested a year, or even two years, or even three years ago, and still haven’t gone to trial. Second, it is not a cognitive rational decision to resist. It isn’t a choice. It is instinct.

We have a Constitutional right to resist arrest, right? Nope.

PR: Tyler Flood Assumes Presidency

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FOR IMMEDIATE RELEASE

CONTACT:
Tyler Flood, HCCLA President
713-224-5529 office, email Tyler Flood

Houston, Texas – May 16, 2016 – The Harris County Criminal Lawyers Association (HCCLA) held its 46th annual banquet on Thursday, May 12, 2016 at Hotel ZaZa in Houston, Texas.

Dick DeGuerin swore in HCCLA Officers and Board of Directors (2016-2017), including incoming president Tyler Flood.

Effective immediately, please direct all media inquiries to: 

Tyler Flood – HCCLA President
Tyler Flood & Associates, Inc.
1229 Heights Blvd.
Houston, Texas 77008
(713) 224-5529 Office
(713) 224-5533 Fax

email tyler

###

THE LIFEGUARD

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the lifeguard
by Rick Oliver, HCCLA member and attorney lifeguard_Page_16

“Back in the day I was a lifeguard, if you can believe that.”

After a hesitant pause, she said, “Not as easy as it looks, is it?”

He shrugged to himself. His eyes drifted up and as they did the phone slid down his chin a bit. He could have heard her if she were talking. But she wasn’t; she was waiting for him. He took a deep breath and gently probed the darkness. It was too complete to discern the shapes on the wall, but he wasn’t scared. It was his office, after all; had been for the last twenty years. He could smell his smell in it. Everything he touched was warm and familiar. He could move confidently in the darkness without offending a shin. This place symbolized his place in the world. Every stick and scrap was evidence of or a testament to the career he’d conjured virtually out of nothing. Still, he knew, pride isn’t enough to light what’s dark.

His was the same sort of crap you see adorning the walls of nearly every defense attorney’s office. Certificates of accomplishment, laurels earned and laurels bought, tokens of appreciation, historical hubris, and the scalps of fallen enemies. He knew what they were. He knew they were there. He’d spent what felt like a lifetime among these baubles. He knew he would recognize them immediately, if only the lights were on. He sighed and mumbled, “I can only see it when I close my eyes.”

Gently, she said, “What was that, John?”

He shook his head like he was warding off a fly, readjusted the phone and said, “Nothing.”

“Did you ever save anyone?”

John’s eyes were drawn to the black corner where the inky dark loomed heavy and substantial. His filing cabinets were a mausoleum of old voices and the stories that had brought them here. Of course he had saved some of them. Some he saved from themselves. Others he plucked from circumstance and the conclusion it suggested. For those victimized at the altar of leverage he had found the fulcrum and turned the tide. Too many had been spared the wrath of political guile masquerading as adversarial zeal. Of course, some of them were just as guilty as Hell. He saved some of them, too. But, he hadn’t been able to save them all. There were just too many.

“When you were a lifeguard, I mean.”

John chuckled quietly and said, “Once. But mostly, I worked on my tan. I remember by the end of that summer the sun had bleached the hair on my arms and legs white.” Instinctively, he reached for his forearm and could remember the soft blonde fuzz of that summer despite the coarse salt and pepper of this winter. “My Mother used to boast that the contrast of those tiny white hairs against golden skin made me seem almost angelic.”

“I’m sure it was just a trick of the light.”

His laugh was almost a foreign sound. He said, “No doubt.”

“Tell me about the one you saved.”

He took a deep breath and leaned his chair back, anticipating the soft nasally squeal of rusty spring. He pressed his head into the rough leather and felt the cold knot of tension that always seemed to play at the base of his skull.

“You ever notice how so much of life is metaphor?”

“I have to be honest,” she said. “More often I find it to be allegorical.”

John cleared his throat and said, “I suspect secular dogma is mostly to blame, for that.”

“How do you figure,” she asked.

“You want to talk about that or you want to talk about the pool?”

“Good point,” she said. “Let’s talk about John the Life-Saver.”

“That’s probably a bit ambitious, but I’ll tell you anyway. I was in my stand, rigidly observing that 10/20 principle they drilled into your head back then.”

“Ten seconds to scan your area; twenty seconds to get to and rescue anyone in it?”

“Very good,” John said. “She was across the pool from me.”

“Tell me about her, if you remember.”

“She was Hispanic. She was there with a few other women and a gaggle of kids who all bore at least the slightest resemblance to her. At the time she seemed old, to me. Looking back, I assume she was in her mid-thirties; a baby. Her hair was twisted with one of those thick green rubber bands they use to package broccoli at the grocery store. It didn’t matter, though. She had the kind of hair whose vibrant simplicity makes other women jealous.”

“The rubber band is kind of an obscure thing to remember. Why do you think you focused on that?”

“I was scanning my area when she eased into the pool. You could tell right away the water made her nervous. The kids all hollered and cajoled and the adults even clapped as she went in. The kind of thing that would piss you off, if they weren’t her family. Some of the kids splashed her and you could tell she didn’t like that; not because of what the water could do, but because of what it was. I don’t think any of those kids could understand her fear. I know I didn’t, then. Anyway, she put on a brave face and started bouncing up and down a little. But, she was careful not to let her head go under. She was white-knuckling the concrete with one hand and waving the other around in circles under the surface—a pitiful attempt to float. That was the start of it. She would bounce a few times and then float into deeper water, all the time testing her footing. Bounce and float, bounce and float. Check for ground. Deeper and deeper. By then no one was paying attention to her anymore.”

“Except for you,” she said.

In the dark, John shook his head. He looked up at the ceiling and slowly exhaled a shuddering breath. “Not me either,” he said.

“What happened?”

“On my next pass I got to the spot I’d last seen her but she was gone. It took me a second or two to realize she’d gone under. Got too deep and lost her grip on the firmament, I suppose. I hadn’t realized how short she was until she went under. All I could see were two little hands reaching heavenward, either side of that beautiful brown hair.”

“She didn’t panic when she went under?”

“Maybe that’s why I didn’t keep as good an eye on her as I maybe should have. I figured if she got into trouble she’d start thrashing about and get everybody’s attention. Surely, I thought, her family would go in after her and she’d be out of the pool before I could get out of my stand. But, that’s not how it happened. I guess not everybody drowns the same way.”

“Would it be easier if everyone did?”

“I think you’re asking a tougher question than you realize.”

After a pause she asked, “Did she make it?”

“I don’t remember blowing my whistle but I can still feel those three sharp blasts in my chest and in my bones, silencing the din like gunshots as I fell from the stand like a stone in to water. I hunched over my rescue tube and swam to her as fast as my arms would carry me. When I got there I jabbed an arm in the water and grabbed ahold of her just above the spot where that thick rubber band was binding her hair.”

“So,” she asked.

“I pulled her up and she coughed a gout of urine-laced pool water, but the important thing is she was coughing. Anyone with kids will tell you that’s a good sign.”

“So, you pulled her up by her hair and saved her?”

“I did.”

“Ouch.”

“My Father always told me to never confuse safety and comfort. I figure she learned that lesson the hard way, that day.”

When she didn’t respond John stood up with the phone. He stepped around the open desk drawer and walked to where he knew the sideboard was. He jiggled the stopper and set it next to the decanter. It rolled on its side and settled with a pleasant clink. He groped for a high ball and when he got it added three fingers of Scotch. It was reduced to a bony finger by the time he regained his seat.

“Can I ask you something, John?”

“Please, do.”

“What was it that reminded you of your lifeguarding days?”

John set the high ball atop his desk and leaned his chair back again. Slowly, he let his head roll forward and loll side to side, trying to work out a kink. He said, “Before you could get hired as a lifeguard you had to pass a couple tests; prove you were a strong enough swimmer for the job. The first was easy enough. It was a timed five hundred meter swim. I hadn’t yet learned how to swim with my head under water, but they gave us plenty of time to finish and I did it without too much trouble.”

“What was the other?”

John leaned forward and put his elbow on the desk. He exhaled a breath that came out in a dry fetid rush. He swallowed the last of his drink. He said, “There was a separate pool by the diving boards where the water was deepest; so deep you couldn’t make out the bottom. They took us over there and we saw something odd. Cinder blocks were spaced out along the edge of the pool; one for every applicant. They didn’t mention the blocks and we didn’t ask. We got in the water and they told us all they wanted us to do was tread water. We started and did that for what seemed like forever. It wasn’t a problem for any one of us and I think that made us all a bit cocky. I remember a joke or two coming at the expense of the strength of the application process.”

“You forgot about the blocks.”

“We did. After a while we thought surely they must be satisfied. They told us to swim to the side of the pool. We thought it was over and we’d passed their test. It wasn’t and we hadn’t. They told us to each grab a cinder block and wade back out to the center. Once we were out there a stop watch was produced. They told us to hold the cinder blocks above our heads and tread water until they told us to stop. If we dropped the block we were out.”

“You passed the test.”

John nodded and in his solace a single tear tracked his cheek and settled with a mournful tickle along the base of his jaw. “I was a young man, then. The cinder block weighed fifteen, maybe twenty pounds at the most. At the start, I held it up in one hand and with a smirk on my face. Obviously, I was showing my ass. But, pretty soon it felt as though I was holding a goddamn elephant above my head and I wasn’t smirking anymore. My arms and legs and lungs were burning like fire, but I was determined not to let that cinder block beat me. I wanted to impress the ones who were there who’d already passed the test. And I wanted to wipe the smug look of satisfaction off the face of the man holding that stupid stop watch, too. Pretty soon two of my fellow applicants dropped their blocks and kicked for the side where they clung to it, defeated. Still, I kept kicking and thrashing. In the beginning I was high and strong and able to keep my chin clear of the water. As time passed I could feel myself beginning to sink. It was such an odd sensation feeling your strength flag in such tiny but meaningful increments.”

“What do you mean?”

“I was drowning; that’s what I mean. I was just doing it slowly and against my will. I realized it when I felt the water on my cheeks. It tickled a little and forced me to blow air out my nose so I could breath. I had to kick hard every so often to get clear of the water so I could take a full breath. The water didn’t care. It was ready to accept me dead or alive; docile or thrashing. And then it was tickling my earlobes. I could barely force a kick hard enough to clear the water for air. Still, I kept kicking and sinking. When it started to sting my eyes I cried out of frustration. I set my jaw and stared blurry lasers at the man counting the time. I believe I would have gone right down to the bottom holding that block over my head, if it had come to that.”

“But it didn’t.”

“Fortunately, no.”

“What do you think gave you the strength to endure?”

“I knew I could drop the block.”

“What’s so different now, John?”

John lowered his head until it was touching the desktop. He whispered, “I can’t drop the block. Not anymore. No matter how heavy it gets or how far under I go. There’s no rest and no break. No stop watch and no end. I can only see one way to get out from under it, anymore.” He started to cry; silent and wracking sobs. Blindly, he reached inside the open desk drawer and gripped his pistol. Like everything else in his office it felt comfortable and familiar. It felt easy and light, and with it the promise of a dream. With his eyes closed, he could see it perfectly.

“John?”

He clamped his mouth shut to stifle a sob and didn’t trust himself to speak. He thought about ending the call. He wondered whether it had been a mistake to begin with.

“John? Are you still with me?”

John was able to manage a confirmatory squawk.

“Get up and turn on the lights, John.” The hardened edge to her palliative tone caught him off guard. He looked up and wondered through tears how she knew he was sitting in darkness.

“How did you know the lights were off?”

“Turn them on, John.”

Confused, but obedient, John pushed himself back from his desk and went to the wall switch. Light bathed his office and he winced. As his eyes adjusted the frames on the walls returned slowly to focus.

“John?”

“I’m here.”

“The block is your life and it’s heavy because it’s meaningful. You don’t have to drop it, John. You don’t have to drop the block and you don’t have to carry it alone. Are the lights on?”

“Yes.”

“Look around.”

Tetchily, John said, “It’s my office. I know what’s here.”

“I think you’ve forgotten, John. Look around. Look around and remember what all you’ve accomplished; who all you’ve helped. Take things down or pick them up and dust them off; examine the details. Re-experience them, John. Those things add weight to the block, too. And those are things you shouldn’t want to let go of. You’re lonely; not alone. When you lose contact with the faces and the places and the love, of course it’s just you holding a cinder block overhead in a big dirty pool of hungry water. Once you realize that, the block will start to feel lighter and lighter. You may even feel strong enough to show your ass, a little.”

He hung on every word, trying not to fall victim to what he so often accused others of: not listening. He wanted her help. That’s why he had called. He breathed deep and steadying breaths. He looked around his office. Somehow, it felt both familiar and new. He saw faces and could hear their voices. It wasn’t all laughter. There was pain, too. But it filled him up and for the first time he began to feel grounded and whole. Emotion welled up and he wondered how he could have ever considered escape. He moved from picture to picture; bauble to bauble. He had no idea how much time had passed; another welcome feeling. He realized she was still on the other end, waiting for him to come back.

For the first time in as long a time as he could remember, he smiled a smile of genuine appreciation. Not just for her voice, but for the voices she helped awaken. “Thank you, Hope.”

“I’m glad you called, John.”

John started to drop the phone but stopped. “Hope?”

“I’m still here, John.”

“That’s not your real name, is it?”

He smiled as she giggled from the other end. “Have a good night, John.”

 

Texas Lawyer’s Assistance Program: If you need help call any time day or night—(800) 343-8527

Camp Gladiator FREEBIE

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Through our partnership with Camp Gladiator, here is your chance to receive a free 4 week camp beginning in January!Slide1

It’s time to work off the holidays and sharpen your mind and body through exercise – and for FREE! Try it out and let your trainer know you are with HCCLA – if you decide you like it, you will qualify for discounts on continued camps under our partnership.

If you have any questions, call or email our trainer
Jessica Leonard
jessicaleonard@campgladiator.com
(281) 736-4232

HCCLA Toy Drive

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hccla toy-driveThis year’s HCCLA Toy Drive, organized by Brandon Ball, benefits Star of Hope.

We are accepting UNWRAPPED toys and cash donations through December 12, 2015.

Please bring toys appropriate for boys and girls of all ages, infant through 15 years. Care packages of new/unused personal items are also appropriate and appreciated.

Drop-off locations include:

Harris County Public Defender Office, 1201 Franklin, 13th floor (Criminal Justice Center)
Schneider & McKinney, 440 Louisiana, Ste. 800 (Lyric Center)
Mark Thiessen, 1221 Studewood, Houston, TX 77008
Adams & Ball, 7930 Broadway Street, Ste. 106, Pearland, TX 77581
and our Annual Holiday Party (December 10, midtown)

Many thanks to Brandon Ball for organizing this drive to help those in need. 100% of donations will be delivered directly to Star of Hope in time for their holiday events!

 

 

Happy Constitution Day

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Harris County Criminal Lawyers Association
Celebrates Constitution Day

September 17th is Constitution Day, and this year HCCLA began a new tradition of celebrating our United States Constitution with a public reading of the Preamble and Amendments. HCCLA also provided commemorative pocket constitutions for attendees and passersby.

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This event is modeled after our celebration and reading of the Declaration of Independence with occurs each 4th of July and was started by Past President Robert Fickman.

Special thanks to member Grant Scheiner for the inspiration for this event and to Grant, Philip Gommels, Jennifer Gaut, and Gemayel Haynes for organizing this celebration.

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Thank you to the following lawyers for participating in the reading of the United States Constitution Preamble and Amendments:

JoAnne Musick – Preamble
Grant Scheiner* – 1st Amendment
Danny Easterling – 2nd Amendment
Dyan Owens – 3rd Amendment
Gemayel Haynes – 4th Amendment
Jen Gaut & Lydia Johnson – 5th Amendment
Phil Gommels – 6th Amendment
Andrew Wright – 7th Amendment
Robb Fickman– 8th Amendment
Lonnie Knowles – 9th Amendment
Patti Sedita – 10th Amendment
Alma Garcia – 11th Amendment
Cheryl Irvin, Ryan Marquez and Alan Macia – 12th     Amendment
Staci Biggars – 13th Amendment
Michael Wynne – 14th Amendment, §1
Justin Harris – 14th Amendment, §2
Wade Smith – 14th Amendment, §3
Roberto Quijano – 14th Amendment, §4 (TSU student)
Akeem Ayinde – 14th Amendment, §5 (TSU Student)

Shout out to the judges who took time to attend and celebrate with us:
Michael McSpadden, Mike Schneider, Brock Thomas, Brad Hart, and Renee Magee (who was out of town but asked her coordinator, Joey DeBruyen, to attend in her absence)

Photos of the event can be found here

Texas Lawyer coverage!

Camp Gladiator!

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HCCLA is proud to announce our partnership with Camp Gladiator!

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Strong Bodies = Stronger Minds
Be ready for the challenges of your clients by challenging yourself!

Members will receive discounts based upon the number of members signed up (5-30%). Discount will be given every month, and as more members sign up, the discounts for all become greater and are adjusted for all.

Camp Gladiator is an outdoor fitness program for all ages and all fitness levels. They have locations all over the greater Houston area and throughout Texas. Each month brings you unlimited fitness opportunities: attend any and all camps as your schedule permits.

For more information or to register and start training, contact our fitness trainer Jessica Leonard at jessicaleonard@campgladiator.com or 281-736-4232

Basic Traffic Stop Reconstruction

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Practice Pointer: Basic Traffic Stop Reconstruction
by: Tate Williams

Justice Ginsburg’s April 21, 2015, opinion for the majority Rodriguez v. the United States immediately states, “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.[i]

Whether a traffic stop takes too long, absent reasonable suspicion of another crime, is suddenly of paramount importance when other evidence is discovered as a result of the detention. This is not every case, but it is many cases where, as in Rodriguez, a stop is prolonged for the arrival of a narcotics detector canine or some other purpose.

Litigating this issue requires not only a familiarity with 4th Amendment jurisprudence, but the ability of the defense lawyer to re-construct and present the encounter between the accused and law enforcement to the Court. That exercise is one that is easily learned and will improve the attorney’s practice in all cases.

Gathering the Evidence

Information commonly available in Harris County criminal cases, if obtained, allows the counsel, a judge and a jury to begin to evaluate the reasonableness of the detention. In addition to any officer’s report, the three most frequently available sources of evidence in local traffic stops are:

  • Mobile Data Terminal Logs,
  • In-Car Videos,
  • Dispatch Audio.

Obtaining these materials requires diligence shortly after the arrest as many agencies only preserved them for a limited period of time. Sample subpoenas are on the HCCLA site. One may also make a Michael Morton Act request, but it is frequently better to know what they contain before you alert the prosecution to their contents.

If the agency moves to quash a subpoena, then one might determine it necessary to file a written motion stating exactly what is sought, what it is expected to show, why it is relevant, and cite the statutes and the accused’s constitutional rights to confrontation, counsel, and to present a defense.

If an agency denies the existence of the information, verification may be required via a subpoena, Public Information Act, or other form of request for information related to that denial:

The maintenance records on the relevant patrol vehicle;

  • A complete list of all vehicles with recording equipment;
  • A complete list of officers with body cameras;
  • Video use and preservation policies.

The General Orders, Standard Operating Procedures, and lists of patrol units with recording equipment are items that HCCLA has previously obtained in admissible form and shared in the member’s section of the web site and may do so again in the future.

The Types of Evidence

Police Reports are generally not admissible as evidence in criminal cases. They may be used for impeachment purposes or to refresh an officer’s memory, but almost no local judge will allow it to be entered into the record. The following materials, though, may be obtained and offered pursuant to the business records exception.[ii]

MDT logs (sometimes referred to as call slips) are useful because their time stamps are reflected to the second as to when data was sent and received. After one learns how to read them, they are a reliable source of when the stop was made, when the officer requested additional information about client’s vehicle or criminal history, what else may have been communicated and when it was completed.

Any video recording should be watched and transcribed. Personally transcribing it word for word allows the attorney to learn the video. Time stamps should be made every few lines and at key events for later reference. Non-verbal conduct may be placed into parentheticals.

Dispatch tapes are also helpful but may be difficult to understand. They often contain statements from officers not contained in the MDT logs or reports such as a request for assistance by specialized units. Unfortunately, they do not contain time stamps but can be compared against the MDT logs to determine the identities of the speakers and relative timing of events.

Using the Evidence

Timelines are often helpful for case investigation and presentation to place consistent or conflicting evidence into an easily digestible format. Each of these discovery materials may be placed into their own timeline or combined into one indicating the source of the event.

Some lawyers construct timelines using columns on flip charts or chalkboards, spreadsheets in Microsoft Excel, or even foam story boards with actual still shots, document shots, audio clips etc., or a combination. The preference is personal may depend on whether it is in preparation or for use at trial with witnesses, pleadings, or argument.

However presented, it has to tell the tale of the stop accurately and effectively. These materials may sometimes be offered into evidence as a shorthand rendition of testimony if presented through witnesses or possibly as a summary of voluminous records.

Regardless, beginning to construct a with the paper materials to (report and MDT logs) allows one to quickly construct a skeletal timeline that one can more easily place events from the recordings into as they are reviewed in preparation or before the Court.

The purpose of the timeline is to show what actually happened. However, to illustrate unreasonableness for a judge or a jury it is sometimes necessary to show what should have happened.

Setting the Standard

In much criminal or civil litigation there is an appropriate standard of care against which a party’s conduct or a witness’s testimony is measured.   Police conduct is no different.

Whether required by statute or the standards of an accrediting body such as CALEA (which both the Houston Police Department and Harris County Sheriff’s Office aspire to adhere to) almost every law enforcement agency has enacted “General Orders” or “Standard Operating Procedures.” These are written directives by which they operate internally and against which they evaluate their own performance. In the Houston Police Department, these are formulated and promulgated by the Inspections Division’s Policy Development Unit (PDU).[iii] The Sheriff’s Department has a similar process.

Traffic stops and other investigations are often governed by these policies and may articulate standards against which the officer in a particular case should be judged. They should be reviewed to at least understand how the officer is trained to perform his duties and respect the rights of citizens. They frequently include not only what an officer is required to do, but in what order and reference other relevant policies.

These policies may be used to make a rough outline as to how an investigation should proceed for reference to what the evidence actually shows. They can be placed into the timeline to show what should have occurred and actually did or did not. If there is a violation of policy or a variance between what should have happened and what did happen, it could be argued that this is evidence of unreasonableness in prolonging the detention.

The Exercise is Good for You

Not every detention is unreasonable and not every investigation will yield evidence supporting suppression. But a large portion of criminal cases result from traffic stops and reconstruction of events with reference to source materials is easy to perform with materials easily and readily available. Once mastered, it is a skill that easily translates to any other type of case.

Knowing what the evidence is and isn’t is the foundation of any representation and the lawyer’s ability to properly advise a client.

If for no other reason, timeline reconstruction is valuable because it forces the lawyer to review the evidence in detail and reduce it to a format that can be easily referenced with the client, investigators, and at trial.

[i] United States v. Rodriguez, No. 13-9972, slip. op. at 1 (April 21, 2015) citing Illinois v. Caballes, 543 U. S. 405 (2005).

[ii] See Tex. R. Evid. 613, 803(6), (8)(B), and 902(10).

[iii] HPD Command Overview Manual, 2014, http://www.houstontx.gov/police/department_reports/command_overview/Command_Overview_Manual_2014.pdf

Cross Exam by Terry MacCarthy

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Learn Cross Examination from the Master, Terry MacCarthy — in the privacy of your home, car, or office.

“There are absolutely no judges and very few lawyers whom I respect so much. I have long been an admirer and a fan of Terry MacCarthy. I think that all of the things that can be said about a lawyer would not be enough to say about Terry MacCarthy.” — Richard “Racehorse” Haynes

Purchase and Download Your Own Copy Here

If you try cases, you must master cross examination!

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