We are UNLESS

July 31, 2016 Leave a Comment

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 [1^st 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 [1^st 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 [1^st Dist.] 2006, no pet.)

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

[xvii] Id. at *8

Chess Corner Winter 2015

March 17, 2016 Leave a Comment

Chess Corner: Winter 2015-2016
by Tyler Flood, HCCLA president-elect and attorney

There is a French Proverb that says “You Cannot play at Chess if you are kind-hearted.” Don’t let fear stand in the way of success.

You have to have the fighting spirit. You have to force moves and take chances…
(Bobby Fischer)

This job we signed up for requires a deep down passion for righting the wrongs we see happening every day in the criminal justice system. If we don’t fight to protect our rights, who will? Nobody. We are the rebellion against the First Order. Grab your light saber and go to battle.

Recently, a young-ish trial lawyer found himself in a tough spot that required him to do some soul searching. He was in trial when the State’s key officer, who was 3 months pregnant, was rushed to the hospital due to complications with the baby. She had miscarried before and she thought it was happening again. The witness became unavailable after the jury was sworn. The Court did not declare a mistrial sua sponte but instead urged the defense lawyer to request a mistrial on his own. A difficult position to be put in. The lawyer had the night to weigh his options. The Court and the State were putting a tremendous amount of pressure on the defense lawyer. The State even made terrible comments to the lawyer, among other things, threatening him that they would never agree to any continuances from him ever again in the future for anything and they tried to guilt him into putting the police officer’s interests before his client’s.

Being a reasonable and compassionate man, the lawyer was deeply torn. As much as he wanted to help the officer with her medical situation he decided that the right thing to do would be to remain loyal to his client. He politely and sincerely conveyed his sympathy to the Court and to the State but told them he just could not agree to a mistrial and would not be requesting one. The Court granted a continuance request from the State from Wednesday to Friday to see if the officer would be available so the trial could proceed. The officer saved the baby and recovered well enough to appear on Friday and testify. At 9:30 pm on that Friday night, the jury came back with a Not Guilty verdict.

Being a trial attorney is not for the weak at heart. It takes strength and courage to do this job the right way. We often find ourselves in frightening situations and we have to hold our chin up and face our fears head on. Sometimes we are put in positions where there is great pressure to compromise our ethics and our integrity. These are the moments that define who we are. Our decisions set examples for lawyers young and old. In the face of adversity, be strong and stand up for what is right. You can make lasting impressions on others that will empower them to be strong when the time comes. Most importantly, do the hard things and fight the tough battles for the one who matters the most…You!

The only real lawyers are trial lawyers, and trial lawyers try cases to juries…Clarence Darrow.

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)

Chess Corner

September 13, 2015 Leave a Comment

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

Basic Traffic Stop Reconstruction

August 22, 2015 Leave a Comment

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 4^th 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

July 30, 2015 Leave a Comment

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!

Winter Defender 2014 Online

March 18, 2015 Leave a Comment

The newest issue of the Defender (Winter 2014) is now available online for viewing and downloading.

Visit our publications page for a link!

This issue includes:

Mediation?…In My Criminal Case? (by Jason Truitt)
Practice Pointers
Juvenile and Felony Sentencing
Wants vs. Needs
What the Welder Taught Me
Kent Schaffer: A Profile (by Thuy Le)
Strategy: Donald Rumsfeld & the Unknown (by Joseph Varela)
How Do You Do It All? (by Lisa Shapiro Strauss)
And regular features
Winning Warriors (compiled by David Ryan)
News Round Up (current events)
Chess Corner (by Tyler Flood)

Winning Opening Statement

October 19, 2014 Leave a Comment

Winning Opening Statements[1]
By: Frank Sellers
frank@hurleyguinn.com

You can have the greatest close in the world, but if you haven’t won the case by the time that you get to the close, it’s too late. The opening statement is where you win the trial.
-Gerry Spence

Is an opening statement really necessary?

In varying degrees, social scientists agree that 65 – 90% of jurors make up their minds after hearing the opening statement.[2] It does not take a rocket scientist to figure out that if, empirically speaking, this many jurors are deciding a case based in large part on the opening statement, the chances of a first-place finish are drastically, even fatally, reduced by not giving one. After the prosecutor has told the jury all of the terrible things your client has done, this is your first opportunity to show there is another side to the story. As Paul Harvey said, it is your chance to tell “the rest of the story.” In short, not only must you give one, but it also must be better than the prosecutor’s.

So how does this article help me?

Taking tidbits from famous cases tried by legendary lawyers, this article seeks to provide some insight into how the lions of the trial bar give opening statements. Those cases, the charges, and the lawyers are:

New York v. Sean Combs (aka Puff Daddy); Unlawful Gun Possession and Bribery, Benjamin Brafman[3]

Texas v. Robert Durst; Murder — Dick Deguerin and Mike Ramsey[4]

United States v. Terry Nichols; Conspiracy to Use a Weapon of Mass Destruction and Murder — Michael Tigar[5]

Oregon v. Sandy Jones; Murder — Gerry Spence[6]

Virginia v. Marv Albert; Sexual Assault — Roy Black[7]

Drawing on concepts from these legends, and various other resources, what follows is a synthesis of how to give a powerful, effective, and (hopefully) winning opening statement.

How do I structure my opening statement?

Like many things, getting started can be the most difficult task. I find myself with so much to say, but I am unsure how to say it, usually resulting in a self-imposed writer’s block. This formula helps me get my thoughts down into an understandable, cohesive format:

Power Statement / Sound Bite / Why My Client Wins: Typically between one and three gripping, powerful sentences getting to the heart of your case.

The Big Picture: Ten sentences or less tying in your power statement and providing a little more detail about your theory and giving context to your power statement.

Cast of Characters: Introduce the main players, and provide any relevant background.

Tell the Story: Fill in all of the details that illuminate your power statement and theory.

Conclude: Call the jury to action and empower them to say “Not Guilty.”

The opening statement you ultimately give may or may not end up being in this format. This just helps me organize my thoughts. After getting my thoughts out in this format, a natural adjustment usually occurs. The story does not have to be linear or in chronological order. In fact, different parts of the story may be better told in another format. For example, a circular story — one that begins and ends in the same place — may be most effective. After organizing your thoughts in this way, a natural structure will emerge. For almost any case, though, the above format will work.

Write it out, but do not read it. I type almost everything, but for some reason when I make my first outline and write my first draft, I am more creative if I handwrite my opening. From there, I will type it on the computer. Then, I will type a final one- or two-page list of bullet points. Much of what I end up saying at trial is what I wrote originally, but with bullet points — as opposed to reading word-for-word — the delivery is much more genuine.

Power Statement / Sound Bite / Why Your Client Wins.

You must be able to distill your case down to one to three sentences that tells the jury why you win. A wealth of research reveals that jurors will remember best what they hear first and last — i.e., primacy and recency.[8] Powerful opening lines are critical. Two examples illustrate this concept.

First, in Puff Daddy’s trial, one of the major issues was dealing with Puff Daddy’s celebrity. Brafman began his opening like this:

Ladies and gentlemen, this is Sean “Puff Daddy.” You can call him Sean, you can call him Mr. Combs, you can call him Puff Daddy, or even just plain call him Puffy, but what you cannot do in this case, you cannot call him guilty, because from the facts, from the evidence, from the law, you will conclude that he is not guilty. It’s that simple.[9]

The jury ultimately agreed and acquitted.

Second, in Terry Nichols’s trial, the obvious goal was to save his life. Tigar’s opening statement was brilliant in playing on the fact that Nichols was not present for the bombing because he was at home with his family, tying in this one-sentence phrase throughout: “Terry Nichols was building a life, not a bomb.”[10] Nichols ultimately received a life sentence.[11]

Hopefully it goes without saying that knock-knock jokes are not a good way to start your opening statement.[12] But however you do it, make sure to say something that will grab the jury’s attention.

Elaborate: Give the big picture.

At this point, you have got the jury’s attention, but to keep it, you must provide context and give a little more detail about a critical moment in the case — one that if understood in any other way may cause you to end up with a second-place finish. You should tie it in to your power statement, if possible. Here’s an excellent example from Degeuin’s opening in the Durst trial:

[Power Statement:] May it please the court. Self-defense/accident, and no motive whatsoever. Why did Morris Black die? How he died will not be an issue. Morris Black died as a result of a life and death struggle over a gun that Morris Black had threatened Bob Durst with. And as they struggled, the gun went off and shot Morris Black in the face.

[Big Picture Elaboration:] Bob had arrived unexpectedly at the apartment that he had rented in Galveston, a rundown $300 a month apartment that he rented, dressed as a woman named Dorothy Ciner, a name from his past. He arrived unexpectedly. He caught Morris Black in his apartment. And he knew, because he knew Morris Black, that Morris Black likely had a gun. And he felt both fear and anger because he had kicked Morris Black out of his apartment. He knew Morris Black was dangerous. [13]

But don’t go too far. You want the jury to hunger for more of the story. Keep them on the edge of their seats. Fill in the details after you introduce your client and the parties — in the best light possible for you.

Introduce the cast of characters.

Only introduce the main players. Obviously your client will be the main focus in most cases, so we will start there.

Humanize your client, but be careful. As Gerry Spence says, let them be real people; real people have faults. No matter who your client is or what they may have done, he or she possesses some qualities that people will identify with. Explore how to get these good character traits before the jury, without opening unwanted doors. Again, borrowing from Spence, with a few additions, here are some examples:

Hard working
Honest
Simple
Not the type to be on welfare
Worked with kids
Cared about the poor
Involved in church

But beware of Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008). In Bass, the defendant was a pastor at a church accused of indecency with a young girl on church property. During opening statement, his attorney characterized Mr. Bass as a “genuine,” “real deal” pastor, saying the allegations were “contrary to his character and not worthy of belief.” Id. at 557. The attorney went onto say the allegations were “pure fantasy” and “pure fabrication,” among other things. The trial court then allowed evidence of two extraneous uncharged offenses of extremely similar character, and the Court of Criminal Appeals ultimately upheld this type of evidence during the State’s case-in-chief. Id. at 563 (“Our case law supports a decision that a defense opening statement, like that made in this case, opens the door to the admission of extraneous-offense evidence, like that admitted in this case, to rebut the defensive theory presented in the defense opening statement.”). Moral of the story: if you have extraneous offenses, be extremely careful.

For the other major players, try to theme the witnesses. Sometimes it is as simple as calling them by their title. For example, in a DWI, very rarely will you need to help jurors remember multiple officers; calling the lone officer by his or her name works just fine. But in multiple officer scenarios, or for non-law enforcement, jurors are not going to remember names at the outset, but they will remember titles:

He was the detective who never made a mistake;
She was the witness with incredible vision;
He was the patrol officer who always went by the book.

After setting up the critical issues, and introducing the characters, you are ready to give the jury what they have been waiting on the edge of their seats for — the “rest” of your story.

Tell your story.

To do this, according to Spence, you must first figure out where the injustice is in the case — what is it that turns you on as a human being?[14] Where do you get passionate about the case? [15] Because, “if you don’t care, and if you’re not passionate about your client and your case, how can you expect a jury to care and be compassionate about your case?”[16] Put simply, caring is contagious. Once you figure out what turns you on, a theme will emerge.

And you must have a theme. Trials are story battles. Everyone loves a good story — one with any of these types of overarching themes:

Heroes vs. Villains
Good vs. Evil
Abusive vs. Fair
Tough vs. Terrorized
Greedy vs. Sharing
Manipulative vs. Trusting

We all know that sometimes it is hard to find good things to say about the facts of your case. In that scenario, tell the jury what it will not hear. In other words, contrast the facts of your case with just how bad it could really be. For example, in a plain vanilla traffic stop DWI, tell the jury about all of the drunk driving they expect to see but won’t:

You will not hear about a car that was weaving and serving all over the road; you will not hear about a car that spent more time on the sidewalk than on the street; you will not hear about a driver so drunk that he wrapped his car around a tree. None of that. Instead, you will hear about John who drove perfectly normally but stopped too far over the line at a stop sign — according to the officer that arrested him. That’s it.

Word choice is important. Opening statements that impress lawyers will be misunderstood by jurors. So use ABC’s not legalese; Or K.I.S.S. — Keep It Simple Stupid. Speak in language the jurors will understand; no lawyer talk.

Similarly, lose the “I believe the evidence will show,” or “I think you will hear,” or “we hope to bring you.” If you believe, think, and hope you will prove something, the jury is going to give you less credibility — probably the most important thing the lawyer has going. You will also probably end up believing, thinking, and hoping you win your appeal. Of course, if the prosecutor objects and the judge forces you, you can use these phrases, but do it somewhat cynically. The jurors will think it is just as stupid as you should. Finally, do not tell the jurors that what you say is not evidence; this is another thing that makes jurors wonder why they are listening anyway.

Use trilogies to drive the point home. Some powerful three-word combos are:

Describing interactions between police and our clients: Abused, taken advantage of, violated;

No loss of faculties: Reacted normally, walked normally, talked normally;

Discrediting State’s science: Inaccurate, unreliable, and unscientific;

Reasonable doubt: Wavering, unsettled, unsatisfied.

As an example, in describing Durst having Asperger’s as a reason for why he continuously “retreated” from and “returned” to Galveston after throwing the deceased’s body into the Bay, Ramsey said:

And those people who are weak to begin with, who are broken to begin with, who are troubled to begin with, are much more likely to drift into that kind of state of reaction, an attempt to retreat.[17]

Use “devil words” to describe the State’s evidence. This concept comes from Dr. Sunwolf’s book called Practical Jury Dynamics.[18] Some examples of devil words you can use are:

Contaminated
Compromised
Corrupted
Infected
Sloppy
Dirty
Garbage
Invalid
Rules were: Violated, Trampled, Disregarded, and Ignored[19]

Whatever you do, in the opening and throughout the trial, do not use police words.[20] Figure out their lingo, and adjust it to your liking. For example, in a DWI, how many times do you read reports using words that make things sound much worse than they really are, or that are completely misleading? Here are some alternative words and phrases you can use:

Standardized Field Sobriety Tests: Roadside exercises, Coordination Exercises, Stupid Human Tricks;

Refuse: Conscious, thoughtful decision;

Intoxilyzer 5000 / Instrument: Breath box or Government breath machine;

Horizontal Gaze Nystagmus Test: Eye Test or the Trust-me Test;[21]

Walk-and-Turn Test: Walk the fake balance beam on the side of the road;

One-leg Stand Test: Balance on one leg.

Sometimes, it’s as easy as adding the word “government.” Calling a blood test the government blood test adds a level of skepticism, especially if you set it up properly during your voir dire.

Use those new words, and paint a word picture. Like Disney says, be an “Imagineer.”[22] Use descriptive adjectives, action verbs, and colorful phrases. Take the jury to the moment, as if they were there themselves. In the Durst trial, for instance, one of the major themes was separating the shooting, which was self-defense (the jury agreed and acquitted), from what happened after, Durst dismembering and discarding the body in the Galveston Bay. To drive this point home, the lawyers split the opening — Deguerin telling what happened before the shooting, and Ramsey telling what happened after. In concluding his portion of the opening, Deguerin described Durst’s desperation after realizing what he had just done:

And he went down to Morris [the deceased], and he knelt down, and he said, “Morris, Morris.” And Morris didn’t move. And he could tell Morris was dead. And he thought, “Morris is dead. He’s shot with my gun. He’s shot in my apartment that I rented as a mute woman wearing a wig because I was hiding from an investigation in New York. They are never going to believe me.” He went to his bed, and he sat down and put his head in his hands and he descended into the depths of despair.[23]

In doing this, sometimes it is difficult to invite visualization of a scene where you were not — and would rather not be — present. To help me, I think about the five senses and what would stick out: What did the witness see? What did the witness hear? What did the witness smell? What did the witness touch (and what did it feel like)? What did the witness taste (probably the least likely to help, but sometimes can). I have found that this technique helps me come up with a much more descriptive version of the scene.

Embrace your weaknesses. If the case you are trying were perfect, you would not be trying it. You cannot run from your weaknesses; You have to confront them head on. Some call it “hugging the turd.” If facts are in dispute, tell the jury. Tell the jury your position and your opponent’s, and explain why your position is better. If you have facts that cannot be explained, tell the jury that too. According to Spence, “There may be regrets that need be expressed, apologies made and shared with the jurors. But the overriding justice of the case still rests with our side.”[24] And if you suspect disputes will arise due to changing or evolving stories, you could handle it like Brafman in the Puff Daddy trial. There, the State’s star witness was the driver of Puff’s Lincoln Navigator. He had sued Puff Daddy already, and the prosecution claimed that Puff had tried to bribe him not to testify that Puff threw the gun out of the car window. Brafman primed the jurors for his impeachment:

And [Mr. Fenderson, the prosecution’s star witness,] will tell you, because now he’s stuck with this statement, and if he deviates from it I’m going to put it in his face, and [remind him that] when he previously testified under oath, [he testified differently than we expect him to now].[25]

Or as is commonly the case when someone is falsely accused of child sexual abuse, you must confront the fact that a convincing child will come to the witness stand and testify. Here is one way:

When Abigail [the complaining witness] testifies, you’re going to hear a child that is committed to her story. You’re going to hear a very intelligent, articulate young lady that, in her own mind, has convinced herself that these terrible things really happened to her. But what you’re also going to hear is how she has told this story over, and over, and over again. And the State’s expert forensic interviewer will tell you is that repeatedly telling a story causes a child, especially a young one with an impressionable memory, to begin believing things that are not true. The State’s expert will also explain to you how children come up with these terrible stories in the first place — a concept called suggestibility. When repeatedly questioned by a parent, young, impressionable children will pick up on cues that they are not giving the right answers. When Mom suggests an action and a person like, “Did Ted (the person) touch your private parts (the action)?”— instead of asking open-ended questions so the child can tell the story — children begin to integrate these things into their own minds, and begin thinking this really happened. Even when nothing inappropriate ever occurred; and even when Ted is totally innocent.

Finally, consider telling the story from a perspective other than you client’s, and always tell it in the first-person. Identify which critical witness the jury would most identify with, and tell the story from that witness’s perspective. Either way you tell the story, however, try to tell it in first person. Transition by saying at the beginning: “Imagine I am Joe.” And then speak as if you were Joe and what you saw, felt, touched, smelled, etc. Or, transition by saying, “if you were in Joe’s shoes, you would hear him say.” Differing perspectives and first-person point of view are much more effective in taking the jury to the moment.

Be the most credible person in the courtroom.

This deserves its own section because it is so critical. Your credibility is the most important thing you have. Tell a compelling, convincing story, but do not overdo it. Make sure your story is true, and that you can prove it. If not, and the prosecutor capitalizes on exposing the defense lawyer’s questionable credibility, the case is lost. Whatever you do, do not overpromise and underdeliver.

Conclude, empower, and call the jury to action.

There are many different ways to conclude. Remember, the recency effect — jurors will recall most what you tell them at the end of your opening. As you’ll see from the final three examples, impassioning and empowering the jurors works best.

Brafman concluded his opening in Puff Daddy’s trial this way:

We have an awesome responsibility. Yours is more awesome. You are sitting in judgment in a case where, at the end of the trial, you will conclude that a man has been falsely accused of a serious felony. You asked for it. You could have been excused. You said you would be fair. We trusted you then, and at the end of the case we will trust in your verdict. We trust that your verdict will be a verdict of not guilty.[26]

And Roy Black finished his opening in Marv Albert’s trial by suggesting the only way the jury would convict him would be because of his celebrity:

You will see that Marv Albert did nothing with Vanessa Perhach other than what had been done many, many times before and [in] many, many different places. It was all consensual. There was no forcible sodomy. There was no forcing of oral sex. Any type of biting was done voluntarily and consensually. And it was simply not a crime. And hopefully in this country, being successful and being a celebrity and being well known is not enough to convict you of a crime.[27]

Finally, Gerry Spence shows exactly how to empower the jury to do justice:

At the conclusion of this trial, I am going to ask you to do what no one else in this case has done for Mrs. Jones. I am going to ask you to protect her — to protect her as a citizen under the constitution. I am going to ask you at the conclusion of this case not to leave her any longer at the mercy of the State. I am going to ask you to rescue her from the mercy of the prosecution. That, ladies and gentlemen, is the great calling and the great function of an American jury. That’s what we’re here to do today — to do justice. Thank you very much.[28]

One final note on resources and “borrowing.”

Nearly none of the material in this paper is my original thought. Take a look at the books and materials in Notes 3 – 7, supra, for the full context of the things I have cited in this paper. More importantly, figure out who the best lawyers are and “borrow” ideas, concepts, or word-for-word phrases from them. Every lawyer I have ever told that I stole something from them has been anything but offended; in fact, most are flattered to hear this — because they have done it themselves. We are all in this together, and we need to help each other. With that frame of mind, our clients and criminal justice system will be better off.

– – –

[1] I would like to thank my partner and outstanding trial lawyer, Dan Hurley, who put together the original presentation from which most of the material for this paper was taken.

[2] Gerry Spence, Win Your Case: How to Present, Persuade, and Prevail –Every Place, Every Time, (St. Martin’s Griffin 2006), at 128; Dr. Donald E. Vinson, How to Persuade Jurors, ABA Journal, The Lawyer’s Magazine (2014), http://vinsoncompany.com/pdf/How_to_Persuade_Jurors.pdf; Robert B. Hirschhorn, Opening Statements: You Never Get a Second Chance to Make a First Impression, 42 Mercer L. Rev. 605 (1991), http://www.kearneywynn.com/Articles/Opening-Statements.pdf at 3.

2 Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years, (HarperCollins Publishers, Inc. 2004), at 92.

[4] Ray Moses, Defense Opening Statement: Robert Durst Murder Case, Criminal Defense Homestead (Jul. 1, 2014, 4:37 PM), available at http://criminaldefense.homestead.com/Durst.html.

[5]http://www.uchastings.edu/academics/faculty/adjunct/sotorosen/classwebsite/docs/Rosen-Great-OpeningStatements-Fall2011.pdf.

[6] Videotape: Spence in Trial: How to Win with your Opening Statement, (Produced, Edited, and Directed by Michael Shinn, Gerry Spence 1993).

[7] Seidemann, supra note 2, at 68.

[8] See, e.g., http://en.wikipedia.org/wiki/Serial_position_effect.

[9] Seidemann, supra note 2, at 92.

[10] http://www.uchastings.edu/academics/faculty/adjunct/sotorosen/classwebsite/docs/Rosen-Great-OpeningStatements-Fall2011.pdf.

[11] http://www.cnn.com/2013/03/25/us/terry-nichols-fast-facts/.

[12] Adam Goldberg, George Zimmerman’s Lawyer Tells “Knock-Knock Joke” at Trial, Huffington Post (Jul. 7, 2014, 2:17 PM), http://www.huffingtonpost.com/2013/06/24/george-zimmerman-knock-knock_n_3491367.html.

[13] Moses, supra note 4, http://criminaldefense.homestead.com/Durst.html.

[14] Videotape: Spence in Trial: How to Win with your Opening Statement, (Produced, Edited, and Directed by Michael Shinn, Gerry Spence 1993).

[15] Id.

[16] Id.

[17] Moses, supra note 4, http://criminaldefense.homestead.com/Durst.html (emphasis added).

[18] Dr. SunWolf, Practical Jury Dynamics 2: From One Juror’s Trial Perceptions to the Group’s Decision-Making Processes, (Matthew Bender & Company, Inc. 2007), at 174, 242.

[19] Thank you, Deandra Grant, for teaching me about this concept.

[20] Thank you, Lewis Dickson, for teaching me about how not to fall into this trap.

[21] Thank you, Mark Thiessen, for teaching me about this gem.

[22] http://en.wikipedia.org/wiki/Walt_Disney_Imagineering.

[23] Ray Moses, Defense Opening Statement: Robert Durst Murder Case, Criminal Defense Homestead (Jul. 1, 2014, 4:37 PM), http://criminaldefense.homestead.com/Durst.html.

[24] Joel J. Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years, (HarperCollins Publishers, Inc. 2004), at 130.

[25] Id. at 103.

[26] Seidemann, supra note 3, at 75.

[27] Id. at 108.

[28] Id.

Get a Warrant (cellphones)

October 18, 2014 Leave a Comment

Extending Riley and Wurie:
Warrantless Privacy Intrusions on Location Records of Texas Defendants
By: Drew Willey, with significant contributions from Angela Cameron, HCPDO Appellate Division

Riley and Wurie are unanimous wins for the Fourth Amendment.[i] Law enforcement is now required to obtain a warrant before searching cell phones incident to arrest. While the ruling is specifically limited to cell phone searches incident to arrest, the determinations about citizens’ privacy in cell phones could be extended, if argued for. Particularly, we could obtain a warrant requirement for location data collected through cell phone companies from cell phone use. While a seemingly narrow situation, prosecutors all over the country use this information to further their theories. This extension of cell phone privacy would be another great win for the fourth amendment.

Technological advances have created “modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”[ii] Justice Roberts’ in depth analysis of cell phone advancements is a refreshing nod from the court to realities of the real world and created a warrant requirement the general public may have assumed already existed. However, our right to privacy is still being put to the test by law enforcement. We keep and conduct a huge amount of private information exchange on our cell phones and smartphones through cell phone companies. Currently, law enforcement is obtaining our private and personal information from cell phone companies through a lowered standard of scrutiny. Particularly, cops are tracking individuals’ location without their knowledge through their cell phones by obtaining the information from cell phone companies, and they can do so without a warrant! The statutes surrounding this area of law are often worded unclearly, because the drafters do not have the knowledge about the technology necessary to be clear, or the technology advances too fast for the wording to be relevant in the slowly approved statutes. Generally, cops will pursue their agendas with the maximum capabilities the law allows, even pushing the envelope too far in some cases. For this reason, it is imperative for statutes and courts’ interpretations to adequately protect our rights.

The cases on point are at times hard to understand, but this issue boils down to whether citizens’ have a reasonable expectation of privacy in their cell phone location information. If not, this information constitutes business records or a release of privacy expectation to a third party, and it is let in at trial. If we do have that expectation of privacy, the acquisition of this information constitutes a search and does not fall within an exception for a warrant, thus requiring a showing of probable cause.

Much of the debate on this issue focuses on federal law, so this article first argues for a warrant requirement under federal law. However, the later discussion of Texas law is also important to keep in mind whenever making this argument, depending on how the prosecution is attempting to justify its warrantless acquisition of cell phone location information.

The United States Code and
the Federal Constitution

Federal statute arguably does not allow law enforcement to request expansive information without a warrant.

The applicable statute, 18 U.S.C. § 2703, justifying requests for expansive cell phone information reads:

“(c) Records concerning electronic communication service or remote computing service.–(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications)”[iii]

The term “record or other information pertaining to a subscriber to or customer” is being expanded by law enforcement to include a vast array of information. It is important to look at the requests by law enforcement to make sure they are not overreaching. These requests can come through subpoenas or court orders, neither requiring probable cause. Further, these requests may be made for any length of time. This information could track a person’s location, their calls, and other intimate information for years.

The words “record or other information” are unclear as to what was intended to be included. This vast amount of information is analogous to the NSA’s collection of metadata currently at issue in federal district courts. The ubiquity of cell phones results in a higher need for protection of citizens’ privacy in regards to information obtained through cell phone records and data.[iv] In 2011 alone, cell phone carriers (not including T-mobile) responded to 1.3 million requests from law enforcement for call data.[v] Given U.S. citizens’ expectation of privacy, this statute should not be interpreted to allow law enforcement to obtain such vast amounts of intimate information without probable cause through a warrant.[vi]

Location information is often discussed directly. Proposed legislation specifically prohibits acquiring this information without a warrant.[vii] This bill is currently in front of the Subcommittee on Crime, Terrorism, Homeland Security, And Investigations. This bill does not address the wording in § 2703 that law enforcement currently uses to justify obtaining location information. The separation of this geolocation protection from § 2703, and inclusion in a different chapter indicates that geolocation information was not intended to be covered by the words “record or other information.” Therefore, § 2703 does not currently authorize law enforcement to obtain location information. However, the ambiguity in the statute creates the opportunity for police to obtain this information without a warrant first, and held accountable only if someone challenges a request, which can be rare. Legislation should make it perfectly clear that a warrant is required.

Constitutional rights are violated when police use cell phones as electronic tracking devices without obtaining a warrant.

Jones found that using electronic tracking methods violate the fourth amendment.[viii] The unanimous Riley court even specifically addresses location information. “Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.”[ix] Smart phones advancements give an expectation of privacy for information from that phone.[x] Therefore, obtaining location information through a cell phone is a search and requires a warrant.

A federal circuit split is moving towards a reasonable expectation of privacy in cell site location information.

In an admittedly narrow 2-1 decision, the fifth circuit ruled that historical cell site information is not protected by an expectation of privacy, but recognizing that cell phone users will want their location private and suggesting their recourse should be a demand to service providers or “lobbying elected representatives to enact statutory protections.”[xi] They concluded location information is a business record and admitted without a warrant. On the other hand, in a somewhat confusing ruling, the third circuit ruled that cell phone users do not voluntarily give cell phone providers their location information when making and receiving calls, indicating this information is not a business record.[xii] Then, from the eleventh circuit, Davis came down this past June ruling “cell site location information is within the subscriber’s reasonable expectation of privacy.”[xiii] Two weeks later, the unanimous decision in Riley and Wurie gave dicta arguably confirming the eleventh circuit’s ruling.[xiv] In federal courts, the trend seems to be moving towards the appropriate regard for privacy, and this trend can continue into Texas if argued.

Federal Law Summary

Requesting an overbroad amount of intimate information over a lengthy period of time without a warrant should not be interpreted as allowable under 18 U.S.C. § 2703 and violates the U.S. Constitution. Provided the advancement of technology in cell phones and the increasing number of cell towers in urban neighborhoods, tracking citizens’ location with electronic devices such as cell phones violates their reasonable expectation of privacy. Furthering the trend in federal circuit courts could lead to a citizen’s instilled right to privacy in location information, which would prevent law enforcement from bypassing a warrant by obtaining the information from cell phone service companies.

The Texas Code and
the Texas Constitution

Under Texas statute, it is also unclear whether law enforcement is required to obtain a warrant for the information gathered.

The applicable statute reads:

“(a) An authorized peace officer may require a provider of an electronic communications service … to disclose electronic customer data that is in electronic storage by obtaining a warrant under Section 5A.

(b) An authorized peace officer may require a provider of an electronic communications service or a provider of a remote computing service to disclose only electronic customer data that is information revealing the identity of customers of the applicable service or information about a customer’s use of the applicable service, without giving the subscriber or customer notice:”[xv]

The statute then lists six ways to obtain the information under (b) through lower standards than a warrant requires.

Under this statutory structure, the requirement of a warrant depends on whether information is (a) “in electronic storage” or (b) “information about a customer’s use”. Vast information is obtained from a customers’ use of cell phone service. From a customers’ act of merely dialing phone numbers, law enforcement can find a cell phone users’ location. However, that location information is also stored by the cell phone company in electronic storage. So, does it fall under (a) or (b), and should a warrant be required to obtain that information?

Information under sec. (a) requires a warrant, and information under sec. (b) does not. Historical cell site information are the records that track individuals’ location, and would seem to fall under “in electronic storage” terms. It would seem broader information falls under sec. (a), as it includes broader terms of “in electronic storage”. Following that reasoning, broader information likely includes cell phone site and location records, requiring a warrant for that information. However, law enforcement is not currently obtaining a warrant for such information. They often seek overbroad information, reaching beyond the scope of sec. (b). They may even fail to cite the correct statute in their applications to avoid obtaining a warrant.

Look for overbroad and overreaching applications when location records are being used.

Applications for information often request information beyond the scope of sec. (b)’s “information about a customer’s use of the applicable [electronic communications] service.”[xvi] They could list every possible cellular phone and internet service provider as potential carriers of the information sought; request email and IP address information, network and routing information, and cell site information.

Again, it is important to view the applications for this information to make sure law enforcement is doing its due diligence to determine the type and scope of information they seek, and not merely on phishing expeditions. A higher standard of scrutiny through a warrant should be applied when law enforcement is seeking vast amounts of private information.

Further, subsection (b) deals with identity and a single customers’ use of service. This section is focused on one individual’s wireless service. It does not indicate that other people’s information may be gathered with the lower standard for law enforcement. As soon as law enforcement starts to gather other people’s information, they are obtaining information under subsection (a), requiring a warrant. Otherwise, law enforcement could obtain information about any and every individual that ever came in contact with the number subject to the search, through outgoing and incoming calls and texts, website visits, and/or emails. If this were allowed, law enforcement could conceivably find a political campaign email sent to a subscriber’s email address connected to his or her phone; and, without looking at the content of the email, be connected to a candidate’s entire distribution list, without ever requesting a warrant. This was not likely the intent of the legislature by including subsection (b). In order to protect citizens’ rights, law enforcement should be required to show probable cause for this type of information.

Make sure law enforcement’s citations justifying their applications are correct.

Often, law enforcement may cite to the wrong section as justification for their warrantless searches. For example, they often rely solely on federal statute and law. If they do not cite which section of the Texas statute they are relying on, the intentions of the Texas legislature and protections of the Texas constitution are lost. Applicable Texas statutes exist and law enforcement should be kept accountable in classifying their searches to adequately determine the warrant requirement.

Texas recognized a higher expectation of privacy in cell phones before SCOTUS.

Before Riley and Wurie, the CCA gave an almost identical ruling in Granville when analyzing the fourth amendment. Texas had a ruling for the expectation of privacy in our cell phones before federal law required us to.[xvii] Granville involved an arrestee who still had an expectation of privacy when his cell phone was in the jail property room.[xviii] Judge Cochran explained, a cell phone contains data that “may involve the most intimate details of a person’s individual life, including text messages, emails, banking, medical, or credit card information, pictures, and videos. … [t]he potential for invasion of privacy, identity theft, or, at a minimum, public embarrassment is enormous.”[xix] Citizens who are not an arrestee and whose phones are not in possession of law enforcement have a higher expectation of privacy in their cell phone information. Those citizens are not aware that their cell phone information is being searched by law enforcement. Law enforcement can use this information to find who citizens are calling, when those calls were made, and how long each call lasted. The search for this intimate information should not be allowed without a warrant.

In Houston, we are faced with one case directly opposed to this argument out of the fourteenth district. Barfield followed the fifth circuit’s reasoning that obtaining “cell tower records from the third-party provider did not violate reasonable privacy expectations.[xx] This case was wrongly decided before the guidance of Riley and Wurie, Granville, and Davis.[xxi] It was also decided on federal law alone and did not apply Texas law, arguably weakening its persuasive strength. With a little help from defense attorneys, the fourteenth district will hopefully soon overturn this ruling. Texas courts should provide for probable cause showings in these situations before SCOTUS dictates us to.

Art. I Sec. 9 of the Texas Constitution may provide Texas citizens higher protections than the U.S. Fourth Amendment.

Richardson ruled the Texas Constitution gave greater protection from warrantless uses of pen registers while stating,

“The mere fact that a telephone caller has disclosed the number called to the telephone company for the limited purpose of obtaining the services does not invariably lead to the conclusion that the caller has relinquished his expectation of privacy such that the telephone company is free to turn the information over to anyone, especially the police, absent legal process.”[xxii]

As protection from state constitutions can only be greater than the fourth amendment, Texas courts should follow this ruling to find the same or more expectation of privacy is applicable to the Texas Constitution.[xxiii] The federal constitution and decision of the federal courts provide the minimum protection required by states.[xxiv] “The federal constitution sets the floor for individual rights; state constitutions establish the ceiling.”[xxv]

Art. I Sec. 9 of the Texas Constitution, in this regard, provides Texas citizens more protection than the fourth amendment. Often, law enforcement relies solely on federal law for these types of warrantless searches. While it seems these searches still violate the federal constitution, it is a closer call under federal law. These violations become clearer under Texas law. Texas citizens should not be subject to searches of information by merely dialing numbers on our cell phones absent the legal process of obtaining a warrant.[xxvi] Similarly, many other states have given their citizens “a reasonable expectation of privacy in the telephone numbers dialed on the telephone.”[xxvii] The company’s records of this intimate information do not diminish a person’s expectation of privacy in their cell phone. Law enforcement may not circumvent searching an individual’s cell phone by acquiring the records from a cell phone company. Location information obtained in this manner should be excluded from evidence unless a warrant was used.

Texas Law Summary

When law enforcement seeks expansive information, Texas statute and protections of the Texas constitution are at play.[xxviii] Following dicta in Granville, Barfield should be overturned.[xxix] Citizens’ expectation of privacy should be protected from warrantless searches of cell providers’ location information of their subscribers, especially under the added protection of Texas law.

Conclusion

Citizens have an expectation of privacy with their cell phones.[xxx] Texas citizens are afforded an expectation of privacy that extends to the phone numbers they dial on their phones.[xxxi] Citizens also share an expectation of privacy from electronic tracking devices.[xxxii] Extending Riley and Wurie to protect us from warrantless acquisition of cell site location information takes more defense attorneys making the arguments; after which, we could make a simple edit to the last sentiments of Riley: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ [citation omitted]. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple–get a warrant.”[xxxiii]

[i] Riley v. California, 573 U.S. ___ (2014)

[ii] Id. at 9

[iii] 18 U.S.C. § 2703 (emphasis added)

[iv] Klayman v. Obama, 957 F. Supp. 2d 1, 35-36 (D.D.C. 2013); but cf. Am. Civil Liberties Union v. Clapper, 959 F. Supp. 2d 724, 749 (S.D.N.Y. 2013)

[v] Peter Maass and Megha Rajagopalan, That’s No Phone. That’s My Tracker, http://www.propublica.org/article/thats-no-phone.-thats-my-tracker (July 13, 2012)

[vi] In re U.S. for Historical Cell Site Data, 724 F.3d 600, 615-16 (5th Cir. 2013) (Dennis, CJ., dissenting) (discussing the statutory interpretation canon of constitutional avoidance)

[vii] 2013 CONG US HR 983, Sec. 3. GEOLOCATION INFORMATION PROTECTION

[viii] United States v. Jones, 132 S. Ct. 945, 949, 181 L. Ed. 2d 911 (reasoning a trespass, in part, constituted the search, but also using a Katz analysis to determine warrantless use of a GPS tracking system violated the fourth amendment; Justice Alito’s concurrence also recognizes that technological advances can affect the Katz standard of a reasonable expectation of privacy)

[ix] Riley, 573 U.S. ___ at 19-20

[x] Id.; United States v. Davis, No. 12-12928, 23 (11th Cir. 2014); State v. Granville, PD-1095-12, 2014 WL 714730 (Tex. Crim. App. Feb. 26, 2014), reh’g denied (Apr. 2, 2014)

[xi] In re Application of the United States of America for Historical Cell Site Data, 724 F.3d 600, 615 (2013)

[xii] In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 317-18 (3rd Cir. 2010)

[xiii] Davis, No. 12-12928, 23 (11th Cir. 2014)

[xiv] Riley, 573 U.S. ___

[xv] Tex. Crim. Proc. Code art. 18.21 Sec. 4 (emphasis added)

[xvi] Art. 18.21 Sec. 4(b)

[xvii] Granville, PD-1095-12, 2014 WL 714730

[xviii] Id.

[xix] Id.

[xx] Barfield v. State, 416 S.W.3d 743, 749 (Tex. App. – Houston [14 Dist.] 2013 no pet.)

[xxi] See supra, note ix.

[xxii] Richardson v. State, 865 S.W.2d 944, 951 (Tex. Crim. App. 1993) (the court further discusses the issue at *953: “[W]e believe it would be likewise unfair to hold that the customer ‘assumes the risk’ of public disclosure of a number he dials on the telephone. Other than for billing purposes, the telephone company itself has no interest in memorializing that information. Moreover, the telephone company is fiercely protective of what it considers the privacy interest of its customers even in the information it does record in the ordinary course of business—as any private citizen will discover if he attempts to obtain the telephone bill of another customer without that other’s express permission. [cite omitted]. It goes without saying that telecommunications are pervasive in our society. The telephone company’s vigilance in protecting from public disclosure the uses to which its customers put their telephones reflects a value that is equally pervasive. As with information imparted to a doctor, we share a common understanding that the numbers we call remain our own affair, and will go no further. Thus, society recognizes as objectively reasonable the expectation of the telephone customer that the numbers he dials as a necessary incident of his use of the telephone will not be published to the rest of the world.”)

[xxiii] See id. at 947

[xxiv] See Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991)

[xxv] Id (citing LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986))

[xxvi] See Richardson, 865 S.W.2d at 951

[xxvii] Id. at 950-51 (citing State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982) (New Jersey Constitution gives a telephone subscriber a constitutionally protected privacy interest in the telephone company’s home toll billing records for the subscriber’s telephone); People v. Blair, 25 Cal.3d 640, 159 Cal.Rptr. 818, at 826, 602 P.2d 738, at 746 (1979) (“a hotel guest may reasonably expect that the calls he makes from his room are recorded by the hotel for billing purposes only, and will not be disclosed to others without legal process”); Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783, at 791 (1984) (“an individual’s expectation of privacy in telephone numbers he calls is reasonable, legitimate, and is protected by the State Constitution against government surveillance and intrusion without probable cause”); People v. Sporleder, 666 P.2d 135 (Colo.1983) (under the Colorado Constitution a telephone subscriber has a legitimate expectation of privacy that telephone numbers dialed on a home telephone will remain private and that in the absence of exigent circumstances law enforcement officers must have a search warrant supported by probable cause prior to the installation of a pen register); State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 813 (1986) (“The privacy interests of citizens which are protected by article 1, section 7 of the Washington State Constitution prevent the defendant’s long distance telephone records from being obtained from the phone company, or any pen register from being installed on her telephone connections, without a search warrant”); State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (1988) (Installation of a pen register on defendant’s telephone line was a search under the State Constitution); Rothman v. State, 70 Haw. 546, 779 P.2d 1, at 7 (1989) (“persons having private telephone lines have a reasonable expectation of privacy with respect to the communication of the numbers they call, and the numbers of incoming calls, and the seizure of those numbers by the government, without a warrant, would violate such persons’ right to privacy”))

[xxviii] Art. 18.21 Sec. 4(a); Tex. Const. Art. I Sec. 9; See Richardson, 865 S.W.2d 944

[xxix] See Granville, PD-1095-12, 2014 WL 714730; also see Barfield, 416 S.W.3d 743, 746 (decided before Granville)

[xxx] See Granville, PD-1095-12, 2014 WL 714730

[xxxi] Richardson, 865 S.W.2d at 947

[xxxii] Jones, 132 S. Ct. 945, 949, 181 L. Ed. 2d 911

[xxxiii] Riley, 573 U.S. ___ at 28 (strikethrough added)

We are UNLESS

Chess Corner Winter 2015

Mentoring in Criminal Defense

Chess Corner

Appear Weak When You Are Strong

Basic Traffic Stop Reconstruction

Practice Pointer: Basic Traffic Stop Reconstruction
by: Tate Williams

Gathering the Evidence

The Types of Evidence

Using the Evidence

Setting the Standard

The Exercise is Good for You

Cross Exam by Terry MacCarthy

Winter Defender 2014 Online

Winning Opening Statement

Get a Warrant (cellphones)

The United States Code and
the Federal Constitution

Federal statute arguably does not allow law enforcement to request expansive information without a warrant.

Constitutional rights are violated when police use cell phones as electronic tracking devices without obtaining a warrant.

Federal Law Summary

The Texas Code and
the Texas Constitution

Under Texas statute, it is also unclear whether law enforcement is required to obtain a warrant for the information gathered.

Texas recognized a higher expectation of privacy in cell phones before SCOTUS.

Texas Law Summary

Conclusion

Important Links

Upcoming Events

Contact Us

Appear Weak When You Are Strong

Practice Pointer: Basic Traffic Stop Reconstruction by: Tate Williams

Gathering the Evidence

The Types of Evidence

Using the Evidence

Setting the Standard

The Exercise is Good for You

The United States Code and the Federal Constitution

Federal statute arguably does not allow law enforcement to request expansive information without a warrant.

Constitutional rights are violated when police use cell phones as electronic tracking devices without obtaining a warrant.

Federal Law Summary

The Texas Code and the Texas Constitution

Under Texas statute, it is also unclear whether law enforcement is required to obtain a warrant for the information gathered.

Texas recognized a higher expectation of privacy in cell phones before SCOTUS.

Texas Law Summary

Conclusion

Important Links

Upcoming Events

Contact Us

Practice Pointer: Basic Traffic Stop Reconstruction
by: Tate Williams

The United States Code and
the Federal Constitution

The Texas Code and
the Texas Constitution