Harris County Criminal Lawyers Association

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

Practice Pointer: Free Legal Resources

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Free Legal Resources for the Attorney
by Thuy Le

A simple tablet with a few apps can help an attorney walk into a courtroom with confidence knowing that they have the facts of their client’s case and the law at their fingertips. Following are the top FREE apps that are available for both iOS and Android that can help keep an attorney organized and prepared for court. I’ve excluded the free apps that require a subscription (e.g. Westlaw/Lexis).

Dropbox:

One of the easiest ways to access your clients’ file in court is not to carry around a folder but to have it uploaded to Dropbox. With Dropbox, you can upload pictures, audio files, and documents and access them anywhere in the world. Want to remind the prosecutor that your client’s 911 call is completely different than what is written in the offense report? You can link the file to an email to the prosecutor for them to listen or you can pull up the relevant portion on your tablet and show them in court. Dropbox allows you to link large files and email the link. This is perfect for files that are too large to attach to an email. If you want added security, I suggest using an encryption service for your files before upload.

Evernote:

This award-winning app allows you to capture recordings, notes, and website links and organizes everything into a searchable database. This is perfect for when you’re doing research and want to keep everything organized. Evernote at its most basic allows you to write down notes and reminders and then lets you later pull it up in a searchable database. However, some of the most useful features of Evernote is the email forwarding, the photo capture, and the geocache function. Email forwarding allows you to forward your emails from one of your server accounts to Evernote to keep it organized. For example, your client Keanu Reeves is sending you emails asking about his court date for his aggravated assault charge. Instead of keeping track of the emails in your email server, you can forward it to Evernote and it’ll organize all your emails, documents, invoices, and John Wick pictures into a searchable Keanu Reeves file.   The photo capture feature allows you to turn pictures into documents and converts business cards into a format that you can later search. The geocache function allows you to pull up notes based on where you created the note. Can’t remember which file or memo you were working on in Austin? Pull up the geocache location function on Evernote and it’ll pull up all the notes created in Austin.   Evernote will also let you dictate your notes for those who can’t or don’t like to type. Evernote is perfect in keeping everything organized by keywords, dates, or location. Best of all, you can still access your notes, emails, and files when offline.

Fastcase/Casemaker:

These are two different free apps that pulls up caselaw. Casemaker is available for free for Texas attorneys. Fastcase uses a boolean search field to pull up caselaw by search criteria. Does the judge during trial want caselaw about whether an officer can enter a home where he receives a noise complaint? Enter those search terms into the search bar and it’ll pull up the cases most relevant to the search terms. You can also sort the results by most relevant or date or even specific courts. I’ve used it to find specific rulings by certain judges to see how likely they would rule on a certain issue. Fastcase will highlight the search terms so you can scan to see if the case is relevant. Of course the more specific the search terms, the better the results.

LawStack:

This free reference allows you to access the U.S. Constitution, the Federal Rules of Procedure and Evidence, the Texas Penal Code, the Texas Code of Criminal Procedure and about a hundred other codes, statutes, and documents statewide and federally. This database is searchable and is most helpful when you can’t quite remember the specific sections of the code. Want to know how the issue of self defense is raised? You can type in “self defense” in the search bar and it will pull up all the sections in the Texas penal code, Texas code of criminal procedure and any other database you specify to search for those teams. This has been a quick way for me to look up the law without having to carry around a codebook or read one of the outdated prosecutor’s codebook left in the courtroom.

ISCOTUSNOW:

The Oyez Project has teamed up with the Chicago-Kent College of Law to create this app to help you understand the Supreme Court and its rulings. This app has the most recent Supreme Court rulings and visually organizes it in a way that’s easy to understand. Pictures of the justices who voted for or against a case, who wrote the majority and minority opinions, and who joined whom in the opinions are laid out graphically so it’s easy to follow. There’s also the transcript and the briefs available for the cases. But the best feature is the audio of the oral arguments for the cases. The audio can be downloaded or streamed and is laid out Twitter-like with the Justices’ and attorneys’ pictures next to the transcript of the argument. The app also tells you what cases are pending before SCOTUS and the constitutional arguments made the parties. The search bar allows you to quickly pull up Supreme Court cases based on topic. This is useful if you can’t remember, but want to find the case, that dealt with whether one has an expectation of privacy in a phone booth.   I’ve wasted hours reading and listening to the audio of the arguments on the most recent major Supreme Court rulings. Overall, one of the best apps in helping you understand and learn about the Supreme Court.

Chess Corner

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Chess Corner
by: Tyler Flood

Appear Weak When You Are Strong

“When we are able to attack we must seem unable, when using our forces, we must seem inactive, when we are near we must appear far away, when we are far away we must make the opponent believe we are near. Humble words and increased preparations are signs that your opponent is about to advance. Violent language and driving forward as if to attack are signs that your opponent may retreat.”…Sun Tzu

Before Bobby Fischer became the World Champion Chess player in 1972 by beating Boris Spassky, Spassky was known as the Demon of Deception. He played some of the most exciting and surprising moves ever seen in chess. Many were designed to deceive his opponent and take advantages of opportunities that resulted from those deceptions.

The Sun Tzu book The Art of War teaches deception, preparation and skill on the battlefield. All warfare is based on deception, using surprise maneuvers and using your opponent’s psychological predispositions against him to gain tactical advantages.

In chess and martial arts, attack by deception, is the attack of the master. We must surprise our opponent and catch them in the moment of his helplessness.

This applies to trial. If you are prepared and know your case inside and out there will be at least one moment, one point in the case, one opportunity you can seize and take advantage of and surprise your opponent. However, if you are unprepared, opportunities may present themselves without you even being aware of them and you will not be able to exploit them.

When the time comes for your attack you should “look as boldly aggressive as a beast of prey—without becoming reckless—in order to bring pressure at once upon the adversary’s morale.”…Bruce Lee

Attack your opponent where he is unprepared and appear where you are not expected to attack.

If your opponent’s pleadings are open to attack, weigh the costs and benefits of bringing pretrial motions as opposed to using the deficiencies to your advantage in trial. Not all problems with your opponent’s pleadings require or deserve a “motion to fix” (otherwise known as a motion to quash). And you do not have to raise a motion to suppress by written pre-trial motion. You can raise a motion to suppress at any time during trial before the objectionable evidence is admitted. Roberts v. State, 545 S.W.2d 157 (Tex. Crim. App. 1977).

Ponder and deliberate before you make a move.

Sun Tzu teaches us:

“He will win who knows when to fight and not to fight.”

“He will win who prepared himself and waits to take the enemy unprepared.”

Trial is about opportunity. You must think about and plan for all possible outcomes, 99% of which will never occur. In over 140 jury trials in my 14 years of practice I have yet to have one go exactly as expected. There is almost always something that happens that I wasn’t expecting (but hoping for) and I was prepared for and ready to take advantage of the surprise opportunity. The successful trial lawyer is an opportunist. Be an opportunist.

There is no need to stick your chest out and talk loud and make a public show of confidence unless you want to tip your opponent off that you are not prepared. This usually is a signal that you are desperately trying to obtain a dismissal so you don’t have to go to trial. This is what I see many lawyers do who are either 1) dealing with a weak defense case or 2) who are scared to go to trial.

Being a trial lawyer is the only way to do this job correctly. The small number of lawyers setting their cases for trial in this county is embarrassing. I want to encourage all attorneys to go to trial more often and reap the rewards of taking advantage of opportunities that present themselves during trial. Opportunities that only present themselves when in trial. Opportunities that would never be realized if the attorney did not thoroughly prepare for trial and opportunities that would never be seen if the lawyer pleads out a case when there is no risk in trying it.

Much success in trial comes from out-preparing your opponent and finding issues to use and then waiting for the right opportunity and the right time to make use of those issues. Don’t spoil your chances by bragging or boasting beforehand about problem’s you have found with your opponent’s case. Telling your opponent about issues beforehand will cause you to lose the issues completely. The issues will be “fixed.”

What could be better than knowing your case inside and out and keeping quiet about it and luring your opponent into a false sense of confidence? You go to trial and then unleash your attack, taking your opponent by surprise.

To be successful in trial, why not prepare, prepare, prepare, then be quiet, appear unprepared and wait for your day of triumph. Don’t telegraph your level of confidence in the case.

If you study people you can pick up on so many cues that tell you everything you need to know. For example, during a break in trial the other day I was about to move to suppress the HGN (motion granted) and I asked the officer in the hallway a question about it before we went back on the record. His answer was evasive as he paused, looked accusingly at me and then stated, “I’m not supposed to be talking to you.” I explained that it was fine for him to talk to the attorneys just not other witness but then I said “Thank you though, you just answered my question for me.” He was weak and was trying to appear strong. If he was strong and had no problems with his HGN test he would have responded differently I think.

The idea of being quiet and confident goes both ways though. The prosecutors I am most concerned about, the ones who I worry the most about, are not the ones emailing me or calling me asking me if I am ready on a case. It’s the ones who I ask if they are ready and they simply give a one-word answer, “yes.” If they are bugging me asking why we aren’t pleading and if I am really going to be ready for trial then I know they are not wanting to go to trial on that case for some reason. You can learn a lot by paying attention to people’s actions.

So be prepared but don’t advertise it. If the State is definitely going to try your case then informing your opponent of all the work you have done in preparing for the trial and letting them know that you are very ready and very prepared will cause them to work harder and be even more prepared to fight you. If you know for sure it is a trial case then consider following the ancient lessons learned from warfare and from the game of chess. Act weak and unprepared and you can catch your opponent off guard. Feign weakness and your chances of success increase. This doesn’t necessarily apply to cases that you know are very weak for the state. In this situation you want them to see and hear how prepared you are so that you can increase your chances of a dismissal or a reduction.

Now go out there and fight with a winning strategy in place. Set your cases for trial and announce “Ready” on trial day!

Tyler

Controlling Chaos

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Practice Pointer: Controlling Chaos
by JoAnne Musick

If your practice is like mine, chaos can easily take over. Each client’s question is the most important question in the world…to him. Sure it’s important to you as well, from a representation perspective, but you must manage the chaos before it takes over.

  1. Set Priorities

Do you really need to read every email as it comes in? Not likely. Turn off email alerts on your phone! Every alert draws your attention away from the task at hand. Minimize the alerts and minimize the distractions. Email can be a priority, but set a time for it to be the priority rather than all day and all night.

  1. Calendar

Follow a calendar: paper or electronic. Make sure every appointment and appearance is recorded. Schedule time for emails. Schedule time for phone calls. Schedule time for research and case review. The more you schedule the more you realize just how busy you are and how productive you can be.

  1. Electronic Files?

Paper is just fine. Create a file for every client. Keep track of everything you do. Make notes about conversations with prosecutors and clients. Keep a running list of things to do. Follow a checklist to make sure you aren’t forgetting something. Do you need a paperless office? Maybe, maybe not. If you have time, scan everything. Get a Dropbox or similar online storage and place only current files in it. Then you will have access from your smartphone or tablet anywhere, anytime. Once a file is closed, consider scanning its entire contents for storage. Electronic storage is must easier than warehouse space; just make sure you have adequate backup systems in place so you don’t lose your electronic file.

  1. Face the Music

Clients get mad. Clients get aggravated. Clients blame you when they don’t get the plea offer they want. Instead of becoming defensive or avoiding, call the client or schedule a meeting. Review the process and options. Before speaking though, give the client an opportunity to talk or even vent. Sometimes they just want to be heard.

  1. Make a List

Keeping a “to do” list is simple and effective. It can be written or electronic. I’m currently using Evernote to keep a master list of general items plus categorized lists for specific projects. Having a list helps you set goals for getting tasks done and helps you visualize the priorities. Anything not done today gets done tomorrow!

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!

Want vs. Need in Solo IT Set-Up

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by Patrick F. McCann

I am a luddite, defined as a person who opposes technology. I am not opposed to all things, just mostly to the need to obsess over the latest gadget or app [such as a “Fitbit” for instance; do you really need a wrist band to tell you that you are getting fat and lazy? That is what spouses and sarcastic friends are for! The zombie apps come to mind, although they are at least funny.] I liked the wheel, for example. It seemed a good idea, like baked bread, and dogs. So, I believe I am uniquely suited to help you young smarty-pants phone toting new lawyers the difference between what you need, and what you want when it comes to starting up your IT suite. Here goes!

Let me start with an example – you want a BMW M3 series. You need a good reliable car, or a bus pass. See the difference?

For a young solo starting out, who wants to work within the incredibly debt-plagued, shoe-string, ramen-eating existence you all appear to inhabit, here is what you want vs. what you need in your home-office to help you get started:

  1. You want an Ipad with Skype. You need a PC laptop or desktop with a decent monitor, and bundled with MS Office.
  1. You want a multi-function scanner-printer-fax machine that will communicate with the International Space Station and make espresso. You need a good laser jet printer like an HP1022, one that functions reliably and flawlessly and does not cost so much for toner, and an e-fax account that goes to your email.
  1. You want the IPhone 6. You need a good reliable phone that can give you some of the more useful apps like One Note, Dragon Dictation, or Fast Case.
  1. You want cloud storage. You need a good portable hard-drive with a huge amount of storage for backing up your inevitable lost data or laptop failure.
  1. You want a sophisticated online management solution for your practice, like Clio or Abacus. You need Outlook, which by the way comes with MS Office. It has contacts for your client info, task manager for keeping you on top of your deadlines and projects, journal and notes for detailed online memos or tracking your billing activities, a calendar function that frankly, despite all the hype, no one has actually beaten, and a mail management system that, while it is a bit of a pain, can do some pretty cool things in terms of helping organize your research and make your day flow smoothly.
  1. You want Westlaw. You need to learn to use the free search engine provided by the State Bar or Google Scholar advanced search, or, god forbid, use the free county law library or the one at the local law school down the street, and make time to go there.

Total cost for what you want – 4k. For what you need? About $700.00. Want vs. Need.

Everyone clear now?

How Do You Do It All?

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by Lisa Shapiro Strauss, Attorney at Law, mother of 3 kids & Rabbi’s wife

Every working Mom has heard this question, from either our friends who are not working or those without children. This is one of the greatest challenges young women face. Just a generation ago, most women did not work outside the home full time. While some of these apply to men as well, there are issues that are uniquely facing Moms at home (whether single Moms or married Moms).

Fortunately, I had a fantastic role model. My Mom was a small business owner, politician and community volunteer.   On top of that, she raised 3 children, ran carpools, cooked meals and made it all look easy! However, she was probably unraveling underneath the surface and hanging on by a thread at times. She didn’t have many friends in her similar circumstances to lean on in stressful moments. Talk to your peers – go out for a glass of wine, unwind and vent your frustrations!

In our generation, things have gotten better as men take more responsibility at home with children and housework. However, a line item in my budget is to pay someone else to do the housework and laundry for my family of five. There are too many people looking for work that can take this jobs off your plate. I never want to feel guilty about spending quality time with my kids because there is a sink full of dirty dishes staring at me. Your time per hour is so much more valuable spent working or with your family.

Prioritize your extra-curricular activities. When my children were babies, I gave up volunteer opportunities and was not available for evening meetings. There were a few volunteer positions I wanted to hold onto, but realized I wasn’t helping anyone if I couldn’t fulfill my commitments. The time comes when you can take on more activities, but it needs to be once you are ready and your family can handle having you away from home.

You have to spend time every single day taking care of yourself, both physically and mentally. Get up early to take a spin class or break out of your routine early and go to yoga or for a walk. I love being done with my exercise by 6:00am before my kids get up, so I can make lunches and get them out the door. However, you have to get enough sleep so you don’t run your body down. You know what works for you, but you need to add it on your permanent schedule.

On a practical note, I could not live without my iPad, scanner and Dropbox. I have all my contracts, offense reports, photos, witness statements and other evidence scanned into Dropbox. Each Client has a folder in my Dropbox. I upload their videos and photos. I have access to my entire case file no matter where I may be in the world. I have done business on vacation (sadly), but more importantly, in my home. Any client that calls or issue that arises, I have the whole file at my fingertips 24/7. This is a lifesaver for a Mom on the go, driving carpool and sitting at baseball games.

You cannot be the best lawyer, best Mom, best wife, best friend and best volunteer. Something has to give and you need to decide which of these you value the most. Superwoman doesn’t exist and don’t fool yourself into thinking you are the first who will be able to do it all.

At the end of the day, turn off your ringer and enjoy your family.   Our children’s well-being affects us and ours affects theirs. We are inexplicably connected. The quality of the time we spend with them matters. We cannot hear our children while we are face booking, texting and watching the news at the same time. Spend time unplugged!

You cannot be the best lawyer, best Mom, best wife, best friend and best volunteer. Something has to give and you need to decide which of these you value the most. Superwoman doesn’t exist and don’t fool yourself into thinking you are the first who will be able to do it all.

We all need to stop and enjoy the fruits of our labor (no pun intended)! Before we blink, our babies will be gone and all those clients will be a faded memory. Cherish every moment you have with your kids so you don’t regret this time later. The kids will remember your presence and it does make an impact on their future.

Practice Pointer: Reinforce Information for Your Client

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by JoAnne Musick

Client communication is key! You must communicate with your client regularly so that they will know what is happening and so that you can answer any questions they have. Because criminal lawyers spend a great deal of time communicating in person (with frequent court settings, visits at the jail, telephone calls, etc.) you end up sharing a great deal of information verbally with your clients. Often, clients become confused about what you have relayed or they simply cannot remember it all due to the stress of the situation and the volume of information they must process. The question becomes how do you reinforce the information for your client?

Simply, you do so with written correspondence. It is important to provide your client with as much information as possible so that your client can make appropriate and informed choices about his or her case. Think about all the information you share with your client in a typical case: the offense as charged, the punishment range, possible enhancements, possible defenses, summaries of evidence, witness information, collateral consequences (ALR, occupational licenses, ability to seal or expunge, sex offender conditions, immigration consequences, family consequences, employment consequences, firearm possession rules, and so much more). How can your client remember and process all of this information following that 30 minute jail visit? How can your client explain some of these to family when they seek family advice on how to proceed?

Provide your client with written guidelines. Cheat sheets if you will. You can create a general “how to” page on getting an occupational license and/or reinstating a suspended license. You can create a general “informational” page on the ability to seal or expunge records. You can create a general “how to protect attorney-client privileged information” guideline to warn your client about talking to others, especially in the jail. There are many general information categories that apply. Create “cheat sheets” or general information sheets to hand out to your clients to reinforce some of this common information. Think of it like FAQs. You know the questions clients routinely ask you. Start a list, create a handout or two, and get these into your client’s hands.

Additionally, when you convey important information about your client’s case directly to him or her, follow that up with a written letter that summarizes your conversation. Yes, it takes time, but it’s about helping a client. When there is a plea bargain on the table and a timeline for accepting or rejecting it, send a letter to your client reminding him or her. When you need a list of witnesses for guilt/innocence or punishment/mitigation, send a letter reminding your client to get that information to you timely. And, most importantly, when your client disregards your advice, send a letter stating what your advice is and that he or she has declined to follow that advice which could result in certain consequences. This is about keeping the client informed and making sure you have a file of what you have or have not shared with your client.

Add correspondence to your case “checklist” and make sure you are providing information to your client. The correspondence might even include a “welcome letter” and a “closure letter”. Send your client a welcome letter upon representation, something that spells out your scope of representation, how they can best contact you, your typical schedule for returning calls or letters. Send a follow up when you have the details of the charge explaining the offense and its range of punishment. Send plea offers. And finally send a closure letter to let them know where to go from here, i.e. when they might be eligible to seal or non-disclose their records, how to proceed on probation, what to do if they encounter problems or have questions, and thank them for entrusting you.

Anyway, you get the point. There are many things you can do to reinforce the information you provide to your client. Just start with the basics and get in the habit of providing more information to your client.

Practice Pointer: Eyewitness Effects

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By Mark Bennett

Scientific research and practical experience have shown that eyewitness testimony is often unreliable and a leading factor in wrongful convictions. Still, jurors tend to put a great deal of faith in the testimony of an eyewitness.

Eyewitness testimony can go bad because of bias, because of flawed memory, or because of flawed perception. We all think that we see things correctly and remember them accurately. The Internet recently gave us a tool to demonstrate to jurors that we are our perception of very simple things, such as the color of a dress, can be mistaken.

dress

Some people see the dress in this picture as blue and black. Some see it as white and gold. Put the image up on the screen (test it first to make sure that the effect works on the courthouse equipment) and your jurors will disagree on what color it is. (An informal Buzzfeed poll found that 70% of people saw it as white and gold, rather than blue and black. I got about the same results at home.)

Use this to demonstrate that people of good faith, with no biases, can perceive things wrong and believe beyond any doubt that they are correct. Also use it to make the point that how sure we are about things is not a reflection about how correct we are: those who are 100% sure that the dress is white and gold are 100% wrong.

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