JoAnne Musick – Page 2

So the School Principal has Interrogated Your Child…

May 3, 2016 4 Comments

The wisdom of my friend and colleague, Larry McDougal, bears repeating:

A school principal is undisputedly an agent of the State of Texas. Yet the rules that apply to police officers interrogating your child do not apply to school principals. Even if the police officer detains your child and takes them to the principal, as long as the police officer leaves the room prior to the interrogation by the school principal, the rights granted to any person when interrogated by the police do not apply. In the Matter of V.P., 55 S.W.3d 25. This includes the right to an attorney and the right to remain silent. So even though the principal is an agent of the State, they are not law enforcement and the questioning by a school principal is not a custodial interrogation as it would have been had a police officer conducted the questioning of your child.

So now school administrators and police officers are trained to have the principal take all statements or confessions from the child to avoid the constitutional protections afforded all persons when questioned by law enforcement. They will question your child, without notice to you, and anything your child says can be used against them in court. It is a sad day when our schools and law enforcement work together with the intent to deny our children their rights provided to them by both the U.S. and Texas Constitutions along with the Texas Family Code.

No one wants to teach his or her children to lie. Yet parents are forced with the reality of teaching their children not to cooperate with school administrators and law enforcement.

Your children, once they reach the age of 10 in Texas, must know to never admit to anything that they may have done. They must learn to stand up to authority by demanding that their parents be present, that they want an attorney, and they want to remain silent. Children must learn to hold their ground despite being threatened by the principal (or even a teacher or counselor). It is the American school system that has forced parents into this position.

It was not this way 30 years ago. It does not take much to get a young child to admit to something that they did not do.

Overall, this is one of the saddest consequences of our “tough on crime” mentality. Recalling the practices of the past decades, I remember prosecutors teaching law enforcement to “request” interviews and “release” the child after the interview – even if he intended to arrest. The “release” was to show that the child was not “in custody” and therefore the special protections requiring a trip to a magistrate before a statement could be made would not be triggered. Now, we have gone even further to suggest that the school administrators should do the questioning so as not to trigger the constitutional protections afforded to all.

Of even greater concern is that teachers and school administrators are now being offered and taught the infamous Reid technique: a police interrogation technique focused on breaking down the subject and extracting a confession.

Yes, you heard that correctly. Teachers and school administrators are now being taught to extract confessions under a technique that has been charactered by psychologists and judges as coercive and liable to produce false confessions – especially when used on juveniles who are highly suggestible and more easily manipulated.

The Reid Technique taught in schools is composed of three steps:

an investigative component, in which you gather evidence;
a behavioral analysis, in which you interview a suspect to determine whether he or she is lying; and
a nine-step interrogation, a nonviolent but psychologically rigorous process that is designed, according to Reid’s workbook, “to obtain an admission of guilt.”

Even though taught to educators and administrators, outside a law enforcement arena, the video segments to demonstrate behaviors and questioning involved serious crimes such as murder and rape. The materials given to educators refer to suspects or subjects – never students or kids.

Not surprisingly, one of the first things administrators will do is take away the student’s cell phone to prevent calls or texts to parents. Teaching educators to “dabble” in law enforcement is just as dangerous as teaching them to “dabble” in psychology or other sciences. When they get it wrong (not “if” but “when”), we will have false confessions taking children down the prison pipeline with little hope of stopping.

And, why? We already have entire law enforcement agencies created and ran by our school districts. Officers are already on campus or very near campus to respond. Seems one or the other simply isn’t necessary. Ah, but then again, if we relied on our law enforcement officers, we would have to respect the child’s constitutional and statutory rights. And, don’t even get me started on the whole “alternative school” mess…

My Client Says He is Innocent But He Wants to Plea

March 17, 2016 1 Comment

TOP10 March 18, 2016

My Client Says He is Innocent But He Wants to Take a Deal to Get Out of Jail, What Do I Do?
by JoAnne Musick, HCCLA President and lawyer

So, your client who maintains his innocence wants to “take a deal” in order to get out of jail. Can you allow your client to enter a plea of guilty, even though he maintains his innocence? Let’s start with the Texas Disciplinary Rules of Professional Conduct.

Rule 1.01(b)(1): A lawyer shall not neglect a matter entrusted to him or frequently fail to carry out completely the obligations that the lawyer owes the client.

Rule 1.02: A lawyer shall abide by a client’s decisions in a criminal case, after consulting with the lawyer, as to a plea to be entered, whether to waive a jury trial, and whether the client will testify.

Rule 1.02 Comment 2: A lawyer shall disclose offers to settle (proposed plea bargain offers in criminal cases).

Rule 1.03: A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. A lawyer shall explain a matter to a client so that the client can make informed decisions about representation.

First, you have an obligation and a duty to your client. If the prosecutor has made an offer, you must relay that offer to your client. You must also explain the offer sufficiently for your client to determine whether or not to proceed to trial or accept a plea offer. It is imperative that you not only convey offers and discuss whether to proceed to trial but also consult with the client the consequences of each decision. The client must understand the trial process and its pros and cons along with the evidence that is likely to be admitted.

Secondly, you must remember that it is the client who decides what plea is to be entered. He may plead guilty or not guilty. That decision is his and his alone. You should advise him as to the consequences of his plea, but the decision to enter a plea rests solely with the informed client.

Outside the Rules, you must consider the plea itself. Remember, the client maintains his innocence, yet he wishes to enter a guilty plea and take advantage of a plea-bargain. While a judge does not have to accept any plea of guilty (thereby forcing a trial wherein the client could plead guilty to the jury), the judge can accept a plea even where the defendant asserts innocence.

The Supreme Court held in North Carolina v. Alford, 400 U.S. 25 (1970) that there is no constitutional bar preventing a judge from accepting a plea where a defendant maintains his innocence while admitting that the prosecution has enough evidence to convince a jury beyond a reasonable doubt that he is guilty. Thus, his plea stands regardless of his stance that he is innocent. This is typically referred to as an “Alford plea.”

So to answer our original question, the answer is simply you can most likely allow your client to enter a plea of guilty (to a judge or jury) despite the fact he maintains his innocence. Once the client is fully informed, the decision of the plea to enter (guilty or not guilty) rests solely with the client.

HCCLA files Southlawn Amicus

February 29, 2016 Leave a Comment

HCCLA, together with TCDLA and the Harris County Public Defender’s Office, has filed its amicus (friend of the court) brief in the Southlawn Gang Injunction case.

The Harris County County Attorney and District Attorney have sought to banish members of the Southlawn community from entering the area under the theory that they are protecting this area from gang activity. In short, the County has identified many individuals whom they seek to explicitly and permanently ban from entering, remaining, appearing, sitting, walking, driving, bicycling, or being physically present within the “Southlawn Safety Zone.” This zone is just over 2 square miles.

While we recognize the County’s attempt to curb criminal activity within a particular area, this approach is offensive to the Constitution and effectively expels the named defendants from ever entering the area – whether for school, church, or to visit family.

Banishment, while used in medieval times, has never been authorized under Texas law. Banishment is the greatest form of punishment and should not be used as a civil remedy.

The full text of our amicus can be viewed and downloaded here:

Download (PDF, 210KB)

Thanks to the lawyers involved in this litigation for bringing this issue to our attention. And special thanks to Nicolas Hughes for his work in researching and writing on this issue.

For more information on the civil injunction case, Drew Wiley provides an overview.

PR: Grievance against judge sustained – Private reprimand

February 26, 2016 Leave a Comment

Houston, Texas – February 26, 2016 – The Harris County Criminal Lawyers Association (HCCLA) is pleased to announce its complaint against sitting judge William “Bill” Harmon has been sustained with a private reprimand being issued.

For years, Judge William “Bill” Harmon arrogantly and inappropriately displayed his Mother’s Against Drunk Driving award on the bench in Harris County Criminal Court at Law #2. Despite requests from HCCLA and lawyers that it be removed, especially during DWI trials, Judge Harmon persisted in its display. During at least one trial, the potential jurors seated in the gallery responded they could see and read the M.A.D.D. plaque; they knew the meaning of the acronym so prominently displayed on the plaque; they even found its display ironic and uncomfortable. The display represented exactly what judges are supposed to avoid – an appearance of bias or impropriety.

The courtroom is a public place to be free of special interests, especially where the court appears to be aligned with the special interest. Our judiciary must be vigilant in its fairness to all parties appearing before the court and must not align itself with special interests that cast doubt on the court’s impartiality.

HCCLA’s complaint also included other inappropriate conduct.

HCCLA filed a judicial complaint with the Texas State Commission on Judicial Conduct on April 14, 2015. On February 19, 2016, the Commission confirmed its private reprimand of Judge Harmon via written letter (received today).

Because the Commission has issued a private reprimand, rather than a public sanction, we do not have any additional details as to what may have transpired between the Judge and the Commission. We do know that a condition of the reprimand was that Judge Harmon remove the offending display from the public courtroom.

A complete copy of the judicial complaint can be found at: https://hccla.org/madd-about-bias/

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Download (PDF, 875KB)

MADD About Bias

February 26, 2016 Leave a Comment

Have you been in Harris County Criminal Court at Law #2 lately? If so, you may have noticed the long present and blatantly offensive M.A.D.D. plaque is now absent, thanks to a reprimand from the State Commission on Judicial Conduct following a complaint by HCCLA.

For years, Judge William “Bill” Harmon arrogantly and inappropriately displayed his Mother’s Against Drunk Driving award on the bench in County Court #2. Despite requests from HCCLA and lawyers that it be removed, especially during DWI trials, Judge Harmon persisted in its display. During at least one trial, the potential jurors seated in the gallery responded they could see and read the M.A.D.D. plaque; they knew the meaning of the acronym so prominently displayed on the plaque; they even found its display ironic and uncomfortable. The display represented exactly what judges are supposed to avoid – an appearance of bias or impropriety.

One of the most basic canons judges must follow is to remain impartial and avoid even an appearance of impropriety. This is why the display was offensive. This is why HCCLA was compelled to take action and file a formal complaint with the State Commission on Judicial Conduct when Judge Harmon refused to remove the display. The direct result of our complaint was a private reprimand against Judge Harmon for this behavior.

For a judge who routinely hears DWI cases to display a perceived alliance with M.A.D.D. is beyond an appearance of bias. It very plainly shows a bias or prejudice against those who come before the court. Imagine being charged with DWI and walking into court to see that Mothers Against Drunk Drivers has honored the judge for his assistance in their plight. Would you trust that judge to be fair in your case? No, you wouldn’t. Does that bias instill a public trust in the judicial office? Of course not.

This inappropriate display finally came to an end with a private reprimand from the State Commission on Judicial Conduct. The Commission is a state agency created under the Texas Constitution responsible for investigating allegations of misconduct and for disciplining judges who run afoul of the judicial canons that govern their conduct.

Following a request for the plaques removal, several court opinions, and finally an HCCLA complaint to the Commission, Judge Harmon has finally removed the offending display. One would have thought the suggestion that perhaps Judge Harmon would “do the right thing” following a recusal hearing would have received his attention. One would have thought the remarks of Judge Sharp, First Court of Appeals, expressing that the sanctuary of a public courtroom should be free from special interests groups and agendas would have mattered. One would have thought a Court of Criminal Appeals opinion condemning this display would have caused Judge Harmon to take note. But alas, Judge Harmon continued his offensive display of perceived bias against alcohol related cases and defendants who came before him on a daily basis.

Even during the almost year of a pending judicial misconduct complaint, Judge Harmon maintained his display. Absurdly Judge Harmon even suggested to the Commission during its investigation that photographs of the display, made part of the complaint, were staged or altered.

Right around the first of the year, the plaque mysteriously abandoned its home on the bench. Come to find out, Judge Harmon seemed to be aware of an impending decision of reprimand coming from the Commission.

The State Commission on Judicial Conduct took action on our complaint. The Commission issued a private reprimand against Judge Harmon. The Commission cited his display of the plaque as against his obligation to avoid the appearance of impropriety and his bizarre comments regarding the motion to recuse him for failing to remove the plaque. In this side issue, the Commission noted Judge Harmon’s improper ruling on the face of the recusal motion. Harmon had written it was clear to the defendant that the judge was impartial based on her decision to elect judicial punishment in the event of a guilty verdict. However, the law does not allow the judge to make a response to a recusal; his duty is merely to refer the motion to be heard by a neutral magistrate.

All-in-all, despite requests and admonishments, Judge Harmon refused to remove the offensive display from the public courtroom. HCCLA saw no alternative but to file a formal complaint with the Commission. And, thankfully, the Commission took action and issued its reprimand.

Many thanks to Tyler Flood for challenging the issue and providing us with great documentation of the conduct. Thanks to Robert Fickman, Andrea Podlesney, and Mark Bennett for their fine work in drafting the grievance. Many folks came forward and provided the evidence and documentation to support the complaint. Thank you to all.

The body of the complaint and the letter from the State Commission on Judicial Conduct can be viewed and downloaded below.

The Houston Chronicle reported the private sanction on Saturday, February 27, 2016 on page B2.

Download (PDF, 9.77MB)

Download (PDF, 268KB)

“Open Carry” NOT “Papers Please”

December 30, 2015 Leave a Comment

Having been made aware of District Attorney Devon Anderson’s advisory opinion to law enforcement officers [below], it appears the debate is alive and well. Whether or not a police officer may stop a citizen engaged in open carry to check for a license is a very real question.

First and foremost, nothing in the open carry statute authorizes an officer to detain a citizen to determine if they have a license. The ability of a law-abiding citizen to lawfully open carry a handgun does not forego the right to be free from unreasonable searches and seizures.

While Ms. Anderson is correct that an officer may approach any individual in a consensual encounter, citizens are generally free to decline the encounter and walk away. The Supreme Court has consistently held that a person’s refusal to cooperate with a police request during a consensual encounter cannot, by itself, provide the basis for a detention.[i]

Her position that anything short of voluntary compliance with the officer’s inquiry should be reasonable suspicion to believe the person is illegally possessing the gun is perhaps too broad. Anderson cites Chiarini v. State for the proposition that courts have routinely permitted law enforcement officers to approach and detain those individuals observed to be in possession of a handgun. Recognizing that Chiarini was decided prior to the open carry law, we note that observation of a handgun may no longer carry the same connotation of illegal conduct.

There are three types of police-citizen inter-actions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation. Such consensual encounters may be uncomfortable for a citizen, but they are not Fourth Amendment seizures. However, investigative detentions go beyond the consensual encounter and impact the Fourth Amendment rights of citizens.

Ms. Anderson’s position that declining the officer’s inquiry should be reasonable suspicion to justify an investigative detention discounts the necessity for reasonable suspicion. If declining an officer’s inquiry amounts to reasonable suspicion, then a citizen could never resist an officer’s inquiry. Consistent with Supreme Court opinions, an officer may only detain (stop) someone when the officer has specific, articulable, and individualized facts to make it reasonable to suspect that the person may be committing a crime.

In any event, if an officer does detain a citizen solely for engaging in open carry, that detention must be brief and limited to determining whether or not the citizen has a license to carry.

HCCLA will encourage lawyers to challenge the validity of any detention that fails to comply with the long established constitutional requirements governing the seizure of citizens. Though an officer may engage in a consensual encounter with any person regardless of their choice to open carry, nothing in the statute divests an otherwise law-abiding citizen of his or her constitutional rights. Generally, citizens may decline the consensual encounter and expect law enforcement to meet reasonable suspicion standards prior to their detention.

Much like a drivers license is required to legally operate a motor vehicle on our Texas roadways, a license is required to carry a handgun both openly and concealed. Law enforcement does not stop every vehicle operator to present his or her license. Why would they stop every open carry citizen?

Instead, it sounds as though Devon Anderson doesn’t support the Republican platform for open carry. While the Governor preaches liberty, Ms. Anderson wants to usher in an era of “papers please.” This is not what one expects in a free society. Ms. Anderson must accept that elections have consequences and the peoples elected legislature has spoken and approved open carry throughout Texas and Harris County.

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[i] Wade v. State, 422 S.W.3d 661, 664-665 (Tex. Crim. App. 2013), citing Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) (“[A] refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”); Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality op.) (a suspect’s refusal to listen or answer a police officer’s questions in a non-seizure circumstance “does not, without more, furnish” the officers with reasonable suspicion for a seizure.).

View and Download Devon Anderson’s Advisory Opinion Here

Download (PDF, 941KB)

The Writ of St. Nick

December 23, 2015 Leave a Comment

‘Twas the night before Christmas, when all through the house
Not a creature was stirring, not even a mouse. super santa
The cops were out beating inmates with care,
In hopes that No Bills soon would be there.

The snitches were nestled all snug in their beds,
While visions of 5Ks danced in their heads.
The DA in her ‘kerchief, and judges on board,
Harris County settled for bonds indigents can’t afford.

When in the courtroom there arose such a clatter,
I sprang from my seat to defend the matter.
Away to the bench I flew like a flash,
Tore open my law books and filed motions in a dash.

The law on my side and justice not found
I plead for release as my client was jail bound.
When, what to my wondering eyes should appear,
But a miniature sleigh, and eight tiny reindeer.

With a little old driver, so lively and quick,
I knew in a moment it must be St. Nick.
More rapid than eagles his words were finally heard,
And he whistled, and shouted, and freed the jailbird.

He brought in a Writ, and went straight to his work,
And brought justice for all, then turned with a jerk.
And knowing this was a rare show of compassion
This little ole miracle was all he could fashion.

He sprang to his sleigh, to his team gave a whistle,
And away they all flew like the down of a thistle.
But I heard him exclaim, ‘ere he drove out of sight,
“Merry Christmas to all, and to all a good fight!”

(thanks to Robert Fickman for the inspiration)

Mentoring in Criminal Defense

December 7, 2015 Leave a Comment

Law school does not prepare lawyers for the courtroom generally. It teaches them to think, to analyze, and to process, but it does not generally teach the techniques necessary to the courtroom.

In criminal defense, most lawyers are solo practitioners. Many hang their shingle and start accepting cases immediately out of law school. Others may start in a prosecutor’s office but still do not understand the nuances of “defense” work or running a practice. In this vein, mentoring is vitally important.

HCCLA has led the forefront for mentoring in Texas. We have the largest and most successful second-chair program. We have worked with the public defender to further mentoring by assisting in the FACT program (future appointed counsel training). The goal has been to train lawyers in both private practice and indigent defense. By increasing the quality of defense lawyers, the entire system works stronger and better.

HCCLA’s second-chair program has been in existence for many years and is quite successful, thanks to the efforts of Sarah Wood (our coordinator) and all of those who regularly participate in the program.

You can read and download the entire report here:

Download (PDF, 929KB)

Will the Harris County District Attorney Ever Accept Responsibility?

December 5, 2015 2 Comments

“We respectfully disagree with the judge’s findings,” said Jeff McShan. “We believe our prosecutors acted ethically and argued within the four corners of the record and we intend to appeal.”

Nothing new here. This District Attorney, this District Attorney’s Office, has yet to take responsibility for any egregious behavior by its prosecutors.

This time, Judge Stacey Bond found in her 7 page findings that prosecutors Tiffany Johnson and Angela Weltin committed several misdeeds during trial, forcing a mistrial. During a hearing following the mistrial, it has been said that prosecutor Allan Curry argued that all though Ms. Johnson had acted inappropriately it was not intentional. Now, Jeff McShan, spokesperson for the District Attorney’s Office, says the prosecutors acted ethically. Which is it?

Previously, when a chief prosecutor was found to be texting the bailiff in charge of the jury during trial seeking information about the jurors thoughts, the District Attorney’s Office responded,

“While no violation was to be found, we don’t condone prosecutors texting bailiffs while a trial is taking place,” the spokesman said. “The matter will be handled internally.”

And, of course, there’s the famed David Temple case in which former prosecutor Kelly Siegler has been found to have violated ethical duties, and the District Attorney’s Office saw no problem.

And what about responsibility for their social media? While it may not have directly affected the trial at hand, the District Attorney posted on Facebook and Twitter during trial about extraneous charges that had not been introduced into evidence. Clearly, a violation of the ethical duties of any attorney and especially prosecutors. Yet, prosecutors again see no problem with their own actions.

What will it take for this District Attorney to start taking responsibility? When will we demand accountability? When will we demand the utmost in professional ethics of our prosecutors?

We’ve asked on several occasions (here and here), but alas it hasn’t happened.

UPDATE: Being a Prosecutor Means Never Having to Say You’re Sorry – on the Fault Lines Blog by Murray Newman explains the ruling in more detail.

DNA Notice: Mixture Cases More Severe

October 19, 2015 1 Comment

On August 21, 2015, our Harris County District Attorney provided a Brady notice regarding DNA mixture cases. While the office had previously provided notice of the FBI STR population database errors, it was generally believed that the errors would not be significant. However, we learned that when the error combined with DNA mixture analysis, the effect can be quite significant.

Download (PDF, 286KB)

The DA’s notice came with the attached analysis from the Texas Forensic Science Commission.

Download (PDF, 132KB)

Here, the commission distinguished the FBI database error from the changing standards in CPI/CPE interpretations that apply to mixture cases. A mixture case is one in which more than one DNA profile is identified within a particular sample. This means the sample collected, say from a crime scene, contains a mixture of DNA from more than one person.

The commission points out that it is the FBI error together with the CPI standards that has led to more significant discrepancies in reporting.

A more recent memo (September 10, 2015) from the Texas Department of Public Safety Crime Lab explains that its lab has only this year updated its standards in mixture cases, resulting in all cases since 1999 (when they started STR analysis) until August 10, 2015 (when they changed their CPI protocol) being suspect.

Download (PDF, 332KB)

Additionally, in a July 28, 2015 audit of the Houston Forensic Science Center (the former HPD Crime Lab), conservative practices have been criticized as perhaps failing to identify and thus provide probative exculpatory evidence. (see page 3) This audit report was not received until September 18, 2015 when the DA’s office forwarded the audit and an internal response to the audit.

Download (PDF, 484KB)

As you can see, new information is coming out almost monthly. We will continue to provide information as we receive it.