Experiencia de un Prisionero

By | Criminal, Driving While Intoxicated, Immigration

Podría empezar esta historia en tantos lugares diferentes que el hautte coutre de Hollywood tendría un día de campo con él. Pero siempre que mi mente recorre mi “historia de prisión”, siempre comienza en el mismo lugar. No es, como tendría sentido para la mayoría, mi primer día “en el slammer” cuando la gran puerta de acero golpea detrás de usted como usted ve siempre en las películas. No, para mí, mi primer día siempre comienza con mi último día en la cárcel del condado de Tarrant.
Para los no iniciados (y le ruego a Dios que pase toda su vida sin iniciar, querido lector), si alguna vez tiene que ir a la cárcel en Texas, su primera parada después de que el juez baje el dado es una celda de espera detrás de la sala de la corte. Su viaje desde allí conduce a la cárcel del condado, y después de pasar unos 45 días allí (el máximo permitido por la ley), usted será transportado al Departamento de Justicia Criminal de Texas. Ese día, para mí, llegó el 1 de diciembre de 2005.
La aclimatación a la cárcel del condado había sido bastante fácil, lo que con las visitas de amigos y familiares cada día de la semana y el reconfortante pensamiento de que sólo en el otro lado de las paredes y bares eran las vistas familiares y sonidos de la ciudad que había llamado a casa por casi Una década después de trasladarse de Odessa, mi ciudad natal cuyas únicas cualidades redentoras son el programa de fútbol historiado en la Escuela Secundaria de Permian y la reunión más agradable de la gente buena para honrar el desierto. Pero la oportunidad me había atraído a Fort Worth, y había estado ocupado construyendo mi vida. Tenía buenos amigos, un gran trabajo como maestra de escuela media, el cumplimiento de mi servicio voluntario en el grupo juvenil de mi iglesia, y muchos parientes cercanos incluyendo mi madre y la familia de mi hermano. Y este era el día que me iba a dejar todo eso atrás, porque, junto con todas esas cosas buenas, ahora tenía una marca negra fea y socialmente intolerable junto a mi nombre – una condena por agresión sexual agravada de un niño. No hay manera correcta de decir algo así, ¿verdad? Como se ve, cuando el maestro favorito y el voluntario de la iglesia-juventud-voluntario-trabajador decide buscar sexo con uno de sus estudiantes de 12 años, eso es malo, y los tribunales de Texas ciertamente fruncen el ceño. Así que el día que estaba esperando para ser transportado a la TDCJ, estaba siendo retenido en un “tanque” con un montón de otros pervertidos, y algunos de ellos eran sin duda pervertir. Mi primer día “en la cárcel” siempre comienza con el pensamiento de las tres capotas de la calle de pie en la gran ventana frontal del tanque de “matar” en las “últimas perras que vamos a estar viendo por un tiempo”. Traducido en nuestro idioma, eso significa que los prisioneros en la ventana se masturbaban mientras miraban, ya la vista de las mujeres que trabajaban al otro lado del cristal. Estas mujeres podrían haber sido tus hijas o tus hermanas, quizá tus esposas. Y varios de ellos llevaban insignias. Sin embargo, nada sucedió a los “jack-monstruos” en la ventana.
Ahora, he visto las mismas películas que has visto, lees los mismos libros que has leído; Y admito libremente que, dado el modo en que salí de los rieles, probablemente he visto cosas verdaderamente pervertidas que nunca vendrán ante sus ojos. Y nada de eso, ni siquiera las historias que escuché en grupo en el programa de tratamiento sexual-delincuente, me prepararon para ver esta exhibición de comportamiento animal. Quiero decir, era como si el perro golpeara un árbol o algo así. Mi mundo estaba dividido en dos por esa visión. Allí, más allá de esas paredes, era un lugar donde no estaba bien estar en una ventana y masturbarse mientras miraba a los transeúntes. No, serías arrestado y puesto en un lugar donde, de repente, estaba bien, donde las mismas ley-mujeres que debían arrestarte eran ahora los objetos del asalto y no hiciste nada al respecto, donde todo caballero era Muertos porque los hombres del otro lado del cristal eran tan conscientes y tan pasivos. No me malinterpretes. No estoy tratando de ser santurrón aquí. En las escalas, estoy seguro de que cualquier persona cuerda consideraría la molestia infantil como más despreciable que la masturbación pública, y estoy ahí contigo. Pero incluso cuando cometí mi crimen no había ninguna duda en mi mente que estaba equivocado y que debería ser detenido. (Es una de las razones por las que me entregué a la policía cuando uno de mis compañeros de habitación se puso sospechoso de lo que había sucedido). Bueno, esta vulgaridad no era menos equivocada y, podría añadir, que se hizo justo en medio del Tarrant County Criminal Justice Center, y nada estaba sucediendo para detenerlo. Y eso sopló mi mente.
Creo que hay un momento en la mente de cada prisionero. Es un momento en el que se da cuenta, “¡Oh Dios mío, REALMENTE voy a estar en la cárcel por X número de años de mi vida”. Este fue ese momento para mí, y la primera idea que tuve de que tal vez no habría mucha justicia en el Departamento de Justicia Criminal de Texas.
* * *
Si usted viene a la TDCJ desde el estado, usted viene por Bluebird. Ese es el nombre de la compañía de autobuses que fabrica los instrumentos medievales de tortura que te transportan a la prisión en Texas. Desde el exterior, parece un gran autobús escolar blanco, limpio y brillante. El único decir que h

Viejos un montón de criminales en su camino a la junta son las placas de acero inoxidable con pequeños mirillas perforadas en ellos para que los contras pueden ver. Estás esposado a alguien que pesa por lo menos 50 libras más que tú, y él apesta porque, como tú, él no se ha duchado en un rato. El interior también se asemeja a un autobús escolar, al menos en que está diseñado para sentar a las personas que no son más de cuatro pies de alto y pesan menos de 100 libras. No estoy exagerando. Los asientos son de plástico duro, como un autobús de la ciudad, pero la última vez que tuve que “atrapar la cadena” (la jerga de la cárcel por tomar un paseo en el autobús), el asiento que terminé en estaba a sólo ocho pulgadas de la parte posterior de la Asiento en frente. Por supuesto, si estás en el asiento exterior, hay cosas que puedes hacer para compensar, pero recuerda, eres el tipo pequeño esposado al tipo grande, así que es probable que estés atrapado en el interior. Atrapados cadena fuera de Tarrant County, había nieve en el suelo y la temperatura rondaba en los altos 20’s. “Deprisa y espera” es el mantra del TDCJ, y por razones que nunca entenderé, los funcionarios de prisiones están muy ansiosos por asegurarse de que esté listo para ir en el autobús, incluso a las cuatro de la mañana. Eso es por lo menos dos o tres horas antes de lo necesario, pero nunca he visto que jugó diferente y he estado en un montón de cadena, por lo que es el evangelio. Es mejor que te prepares para ello si vienes a la cárcel. Después de haber estado atrapado en el tanque con los monstruos durante más de dos horas, nos llevaron a un pasillo donde nos desnudamos hasta la piel desnuda y nos dieron una saltador. Era blanco y se encajaba en el frente. También tenía más agujeros que el queso suizo, y puesto que la ropa interior no era parte del reparto del paquete qué poca modestia y dignidad que me aferraba a la derecha fuera de la ventana. Por lo tanto, nos dirigimos en una línea hacia el “puerto sally”, que, en el caso del Condado de Tarrant, era un gran garaje bajo la cárcel del centro. El hormigón era un frío escarchado en mis pies descalzos, pero, ¡oh !, cómo desearía ese calor precioso en un par de horas. El tipo que estaba encadenado a hecho a sí mismo a ser algún tipo de experto en ir en el autobús de la cadena. Esta fue una de las mejores experiencias de aprendizaje que he tenido en mi vida, y espero que me escuches ahora, así que no tendrás que tener la misma experiencia. TODOS en la cárcel dicen ser expertos en TODO. Ellos no son. Por favor confia en mi. Ellos no tienen ni idea de qué diablos están hablando y cuanto antes se aprende, mejor será. Por lejos y lejos, la mercancía más preciosa en la prisión es la verdad, y usted tiene que “cavar para ella como nuggets de oro. Pero yo divago. El gran eslabón que estaba encadenado dijo que debíamos “retener, porque los” buenos “asientos (es decir, los asientos que eran los primeros en la fila por delante donde no había otros asientos que podía instalar ocho pulgadas delante de su propio Silla) sería el último llenado. Los guardias, dijo, harían que todos fueran a la parte trasera del autobús. Pensé que podría estar en algo cuando oí a los oficiales ladrar órdenes de ir a la parte de atrás del autobús y llenar los asientos vacíos, pero de pie, como estaba, en el suelo, no podía ver que la mayoría de los Otros chicos de esta cadena realmente sabían de lo que estaban hablando (y ellos subieron ante nosotros e ignoraron completamente las instrucciones que los oficiales estaban ladrando hacia fuera.No sólo se sentaron en los mejores asientos, pero más a menudo que no se extendieron más En el momento en que mi compañero de viaje y yo lo hicimos, había un banco a la izquierda – el uno sobre la temida “joroba” Usted sabe la joroba Es el asiento que todos hemos evitado como la peste, incluso cuando estábamos Diminutos mocos, porque cualquier idiota podía ver que no había espacio para las piernas en absoluto en el asiento de la joroba.Este era el peor ejemplo de dicho asiento jorobado que había visto nunca.El banco literalmente parecía que estaba atornillado a la parte superior de la joroba El espacio libre para la habitación de las piernas era, no estoy bromeando, el grosor de la almohadilla de banco. Él y el ser humano flexible, esto era untennable. Yo, con toda seguridad, no soy un ser humano flexible o flexible. He tenido cinco cirugías de rodilla. Las curvas de noventa grados me hacen feliz y son generalmente factibles si estoy medicado correctamente. Subiendo en ese autobús, yo era cualquier cosa PERO adecuadamente medicado. No queriendo causar ningún alboroto, sin embargo, tomé mi lugar en la joroba, porque, mi filosofía rápidamente adoptada fue que las rodillas doloridas son mejores que los ojos negros. La jaula interior estaba cerrada con llave, el autobús se puso en marcha y después de una última espera aparentemente sin sentido de media hora más o menos, la puerta de arriba del puerto de Sally se abrió y estábamos en camino. ¿Mencioné que había nieve en el suelo y la temperatura estaba flotando en los años 20? Antes de que llegáramos al límite de la ciudad, mis pies eran popcículos. Toda la nieve bajo el autobús estaba siendo lanzada en la rueda por los neumáticos giratorios y convirtiendo la joroba en un perfecto dispositivo de tortura. Lo hice todo el camino a Weatherford, y estaba cantando halleluhjahs cuando salimos de la interestatal. Esperaba que tal vez algunos de estos compañeros viajeros w

Estaría bajando en alguna unidad de prisión que yo nunca había conocido que existía en nuestra pequeña ciudad de vecinos. Imagina mi sorpresa cuando el autobús se detiene frente a una tienda de conveniencia de mamá y pop, y todos excepto uno de los oficiales se bajan del autobús para ir a buscar café y un aperitivo para el desayuno. Debían de ser también pensativos y ahorrativos porque, para ahorrar dinero a los contribuyentes, se aseguraban de que el autobús no estuviera en marcha. Ah, sí, el calentador estaba apagado, también. Pasamos unos veinte minutos allí, los internos quedando descontentos mientras los oficiales recibían gruntled, y estábamos apagado en nuestra manera otra vez. Sabía que nos dirigíamos a Abilene, y sabía que había mucho camino por delante antes de que cualquier de esto parara , Así que hice mi mejor para ignorar el dolor y la incomodidad y la siesta. Todavía era de mañana cuando vi las afueras de nuestro destino. La Unidad de Middleton se encuentra en el lado norte de la ciudad y 1-20 faldas del lado norte de Abilene, por lo que nunca realmente llegar a la ciudad. Tomamos a la derecha e hicimos algunas vueltas y esta pequeña ciudad dentro de una valla de ciclón y alambre de concierto de repente aparece. Las armas estaban guardadas en un armario especial y las cercas se abrieron para dejarnos entrar. Fuimos en coche a donde se gaseó el autobús. Esta fue mi primera exposición al sistema de trabajo penitenciario. Todavía hay gasolineras de servicio completo en este mundo, solo tienes que meterte en prisión para verlos. Un viejo hombre negro con una sonrisa de gato de cheshire consiguió los tanques de diesel rematados apagado mientras que charlamos ansiosamente sobre qué nos aguardaba en los edificios azules del acero alrededor de nosotros. Después de que el gas se hizo, el autobús se detuvo a un edificio de admisión. Había una acera, pero estaba al otro lado del autobús. Así, descalzo, salimos y cruzamos una carretera cubierta de rocas dentadas del tamaño de las pelotas de golf. Esta fue una tortura especialmente exquisita teniendo en cuenta el estado semi-congelado de nuestros pies. Fue en este momento que empecé a sospechar que estas personas sabían exactamente lo que estaban haciendo y estaban aprovechando al máximo. Finalmente llegamos al edificio, y cuando la puerta se cerró detrás de mí, me di cuenta por primera vez que estaba oficialmente “en la cárcel”. Los prisioneros del autobús estaban alineados en tres filas que habían sido convenientemente pintadas para nosotros en el piso de hormigón. Luego nos dijeron que nos quitáramos los puentes y nos quedaremos desnudos hasta que los oficiales de admisión se acercaran y nos dieron nuestra primera búsqueda oficial de TDCJ. Dios me ha bendecido con muchos dones, pero la buena estrella no es una de ellas. Por lo tanto, de todos los escenarios de miedo que me imaginaba enfrentar cuando llegué a la cárcel después de ver una vida de películas de gángster y cárcel, la depredación homosexual no era uno de ellos. Ahora aquí, en mi primer día dentro – realmente en mi primera hora, había un matón grande y feo, una fila arriba, y unos tres chicos más que seguían mirando hacia atrás y mirándome mientras esperábamos que los buscadores hicieran lo suyo . Pensando que había aprendido algo de todas esas películas, pensé que sería mejor hacer una primera impresión y hacerlo rápido, porque otros chicos estaban empezando a notar cómo este tipo estaba mirando y estaban viendo mi reacción. Arrojé mi coraje cuando la adrenalina comenzó a bombear para prepararme para lo que seguramente esperaba que no fuera mi primera pelea en la cárcel. “¡Mira, chico, necesitas una foto o qué ?!” Sus ojos se estrecharon ante mí llamándolo “chico”, y de hecho parecía enfadado lo suficiente como para pelear, pero los otros chicos que nos rodeaban se reían de la broma, y la presencia de los oficiales le hizo adivinar los pensamientos que tenía de venir A mí, supongo, porque se dio la vuelta y se enfrentó al frente. Finalmente, había un oficial delante de mí. Los guardias de la prisión de Texas casi todos usan uniformes grises, así que los llamamos trajes grises. Me hizo abrir la boca. Desde que era calvo, se saltó la parte de pasar mis manos a través de mi cabello. Me hizo dar media vuelta, sentarme en cuclillas y extender mis mejillas. Me hizo levantar cada pie uno por uno. Me hizo dar media vuelta y levantar el saco de tuerca. Supongo que finalmente se sintió satisfecho de que realmente estaba desnudo como un jaybird, porque finalmente se fue al siguiente hombre. Los buscadores finalmente terminaron y estábamos alineados para subir a un mostrador y conseguir un conjunto de uniformes de reclusos que Consistía en una camisa blanca, un par de pantalones blancos sin mosca o botón (sólo una cintura elástica), un par de boxers tan mal hecho que después de una década en prisión todavía no encontraría un par que colgaba cómodamente, Un par de calcetines de lana gris y un par de “winos” hechos en China que se parecían a las maltratadas botas de los Vans que llevaba durante los años 80 cuando los atascos eran populares. (No estás contento de que los que salieron de moda! RIP.) Luego fuimos reunidos en una de las tres jaulas en ningún orden en particular que pude percibir. Una jaula ya estaba llena, y la segunda estaba llegando allí cuando me pusieron dentro. El homo-depredador seguía siendo “medio-asaltándome”, así que me sentí aliviado cuando el oficial pronto decidió que mi jaula estaba llena y lo cerró para arriba. Esperamos en esa jaula durante aproximadamente una hora y algunos trabajadores del preso nos trajeron “juanny-sac

Ks “, que son bolsas de papel marrón con un par de sándwiches y tal vez algunas pasas o ciruelas pasas.Si hubiera sabido cuantos de esos chupones iba a ver en mi tramo TDCJ, lo habría tirado a la derecha en ese momento, Pero como estaba, tenía hambre, y la bolsa tenía comida, así que está bien, otra hora pasa y las cosas empezaron a moverse muy rápido. Primero, nos dijeron que nos quitaramos la ropa que acabábamos de recibir, y nosotros Fueron puestos a través de una ducha y corte de pelo.Entonces recibimos otro par de ropa.Esto fue sólo el primero de un millón de molestas partes de tiempo y dinero desperdiciado que vería a lo largo de mi tiempo.Ella constantemente pareció como el absoluto menos económico y más La manera molesta de hacer cualquier cosa en particular fue SIEMPRE la forma en que se hizo en el TDCJ.Usted ve, ellos no tienen ningún incentivo para cuidar.No es su dinero (es tuyo lector querido!) No es su tiempo deseado (es tuyo, Querido recluso!) El TDCJ es todas las peores características del gobierno grande – desperdicio, corrupción, falta de responsabilidad – Combinado con todos los rasgos despreciados de las corporaciones de mamut – intratabilidad, falta de creatividad, una clase floreciente de mediados de la gestión de wishy-washy. Tan horrorizada como yo estaba viendo de primera mano cómo los impuestos que había estado pagando desde la primera vez que se compraba un centavo de goma en 7-Eleven estaban siendo aspirados a la alcantarilla cuando me encerraron por primera vez, es aún peor ahora. Quiero decir, no importa lo bajo que trate de establecer la barra de logros para esta institución, siempre logran túnel bajo y encontrar un registro bajo. Algunos de nosotros, como yo, nos sentamos en bancos de acero, mientras que otros fueron llamados y Enviado a quién sabe dónde. El depredador era uno de ellos, y nunca volví a verlo, por lo que estaba agradecido. Nos sentamos allí durante unas tres horas y nos cambiaron a una habitación donde nos dieron dos sábanas que parecía que habían sido violentamente arrancado de la cuna de un hombre de montaña por un oso enojado y una manta que apenas sobrevivido es encuentro con un enjambre De polillas enloquecidas y hambrientas. Si tuvieses los tres juntos al mismo tiempo juntos, todavía había lugares en los que podrías meter los dedos. Una vez que teníamos estos artículos, nos llevaron a nuestra “vaina”. Consistía en un edificio en forma de hoja de trébol con tres dormitorios unidos a un piquete central donde las cerraduras electrónicas se activaban para todas las puertas. Nos asignaron nuestras literas. Tuve siete “cellies” compartiendo mi dormitorio, y había varios dormitorios en cada vaina con un “salón central” central que tenía esa televisión por cable de lujo que usted ha oído probablemente hablar de los políticos. Esta era otra dura lección de la vida en prisión: cómo aparentemente las cosas buenas podrían, si se implementan adecuadamente, convertirse en una fuente de increíble tensión, división e irritación. La televisión estaba encendida cada mañana a las 7 am dar o tomar 30 minutos. Casi siempre estaba en su mayor volumen. Adelante, lector, tome un momento para subir su TV a su volumen más alto. No es agradable. Ahora haga eso cada día durante una década de 7 AM a 10 PM en weeknights y 1 AM los fines de semana. Pronto aprendí a dormir con tapones en los oídos. Estas vainas también se hicieron con duchas de cara abierta situado convenientemente detrás de los televisores. No hay necesidad de homo-depredador para dar la vuelta ahora; Él podría apenas fingir como él estaba mirando la TV y conseguir la demostración de su vida. Finalmente conseguí mi cama compuesta, aprendiendo por primera vez en mi vida mimada cómo dar vuelta a una hoja plana en algo que usted podría caber en un “matress “. Tenía un armario con nada en él, pero el manual que habíamos dado antes con nuestra ropa de cama. Al parecer, varios de mis nuevos cellies no estaban satisfechos con el contenido de su nueva área de almacenamiento, porque seguían golpeando las puertas de metal cerradas una y otra vez. Puse mi cabeza en la parte de mi colchón el TDCJ riendo llama una “almohada”, y se quedó dormido deseando con todas mis fuerzas podría volver y tomar una decisión diferente sobre el sexo con un estudiante.

Jury Charge and Instructions

By | Criminal, Criminal

the court shall charge the jury in terms of the presumptions and specific element to which it applies as follows:

• The facts giving right to the presumption must be proved beyond a reasonable doubt.

• That such facts are proven beyond a reasonable doubt. If such facts are proven beyond a reasonable doubt, the jury may find that the element of the offense ought to be presumed exist, but is not bound to self find.

• And even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged.

• If the jury has a reasonable doubt as to the existence of a fact of facts giving, fact or facts excuse me, giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

Okay? I’m kind of moving quickly through this – I don’t think I’m going to take up my time, I know that will break you Al’s heart today but I realize the hours is late. In my paper I have talked about the, state of fact, the other affirmative defenses. Okay! Now I want to talk about the harmless error in the Almanza doctrine. We skip through here. Okay!

Affirmative defenses. Standards of review, let’s talk about that;
Four affirmative defenses exist under Texas law, according to Meraz and Pender;
• Insanity
• Mistake of law
• Duress
• Defense to criminal responsibility of a corporation or association
• The accused is required to establish an affirmative defense by a preponderance of the evidence.

Like I talked about earlier, the rejection of an affirmative defense is also weighed by that civil standard.

Okay! The Standard of review for affirmative defenses. The standard for reviewing affirmative defenses on appeal is whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. We hear that again and again.

Reasonable Belief is based on Penal Code Sec 1.07(a)(42), Mistake of Fact is in Texas Code Sec. 8.02(a)

I urge you to look at the Texas Criminal pattern jury charges, look at McClung’s, look at Texas practice, look at forms whenever you can if your having difficulty coming up with a jury charge or you don’t like the one the chalk has provided for you.

Okay! now harmless error;

Whenever it appears by the record in any criminal action upon appeal that any requirement of these articles surrounding jury charges has been disregarded, the judgment shall not be reversed unless the error appearing from the record, was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of trial. That’s Almanza basically, right there Article 36. 19.

Ordinary Error;

The accused must preserve error and demonstrate harm. In Federal Court, we call it plain error. That’s objected to an error that is so fundamental that you don’t have to have an objection. Well, that’s pretty rare. In Texas, were seeing that’s not happening very often, not with our high courts.

Fundamental Error in Texas we call it structural error. Again, that’s really really difficult; it’s really difficult to show structural error. Okay! Again Article 36. 19 talks about if the error was calculated to injure the defendant’s rights so that he does not have a fair and impartial trial.

Expunctions DWI Obstruction of a Highway Jury Instructions

By | Criminal, Driving While Intoxicated, Immigration

So, in this situation where the DWI is dismissed and there’s no probation for the DWI but it’s reduced to a deferred, not a conviction but its reduced to a deferred so the person is not convicted. In most jurisdictions that DWI’s going to be able to be expunged. Unfortunately, in the jurisdiction of the 3rd court of appeals and other courts that may follow that, we’ve got a real bad case called ‘Travis County attorney versus M.M.’ and in that case, M.M. was charged with DWI, resisting and assault on a police officer. The DWI was dismissed, there was a deferred adjudication on resisting and then a 1245, the assault into the deferred which don’t ask me how they did that, but they did. and then so, what was, the court held on that was; now sub-section A says; the person…. very first part of the expunction says, “the person is entitled to have all records and files related to an arrest expunged if they meet all these requirements.” well the court said that Because sub-section A the unit to be expunged is arrest then that’s the only thing that can be expunged, not the individual charge. so, basically the holding of that case is,” unless everything arising out of an arrest is expugnable, then none of it is”

so in that situation of what we’re talking about the DWI reduced to obstructing a highway, even though the probation was not for the DWI the M.M. court, the 3rd court and M.M. said that,” because everything is not expugnable out of it, then none of it is.” and, but take heart if you do have that issue in one of yours, or you have a judge who’s inclined to follow M.M., that it is based on a previous version of a statute and the appeals that are contesting that, just haven’t gone through yet. So, I’m hopeful that once they do, they’ll acknowledge that the law has changed and that’s no longer the case. and there’s only one case that has even cited M.M. and followed it and that is Ex parte M.R.L and if you ever need this case there’s a foot note on it that says that,” we disagree with M.M. because…” well not that we disagree with it but the legislature has substantially changed the law since M.M. was decided so if you need that, that’s where you look for that.

So, charges that have not been filed. You got different timelines for your cases that have never been filed and your cases filed and dismissed. if an indictment or information has not been presented: then you have the right to expunction, a 180 days after your arrest if it’s a class C misdemeanor, a year from the arrest if it’s for a class A or B misdemeanor, or 3 years if it’s a felony. Now these are timelines that allow you to do an expunction way before the statute of limitations expires. Except on a felony most statute limitations are 3 years. so, you really want to think about whether you want to go ‘poke the bear with a stick’ and say, ” hey you haven’t indicted this case yet, give me my expunction” or “you haven’t filed this yet, we need an expunction.” so, the only time I would ever advise doing this is; if you get the 4th part of this which is,” a person can apply for an expunction at any time if the prosecutor for the state certifies that the records are not needed for any kind of prosecution. Now without that certification, you’re not getting a complete expunction. because the law allows that,” if the prosecutor does not certify it, then the prosecutor can keep…” expunction will still go through and will go through all the other agencies, but the state and the other applicable law enforcement agency which; when I do an expunction most of the agencies that I cite could be called ‘law enforcement agencies’ they get to keep their records if there’s no certification from the prosecutor. So, basically what that would do was; you would go and get your expunction, the prosecutor and the applicable law enforcement agency still had their records. So you’re going to need to go back and do another expunction afterwards. So it’s a kind of thing where I just don’t see a whole lot of value in doing an expunction under those timelines unless you get that certification. And so, or better yet a recommendation under 55.01(B), yeah, 55.01(B) and we’ll talk about that here in a bit.

Pre-trial intervention program. Like we said, a pre-trial intervention program allows somebody to get an expunction as soon as they complete the program. Now these are going to be your programs, it says ‘ authorized by government code 76.001’ these are programs that are done by, a joint program between the probation department and the prosecutor’s office. So, it’s not probation, it’s not a deferred prosecution, it’s just from the prosecutor. But in many counties you have these pre-trial intervention programs and you can do those immediately upon completion. But beware of waiver clauses. Nowadays, more and more of these intervention programs have waivers in them that say; that the person agrees that they will not seek expunction of the records or at least the pretrial intervention program can keep some information on them. So, just beware of what you’re telling your clients, can be done if they have a pretrial intervention. Another, if the case has been filed, if the presentment was made because of mistake, false information or other similar reason indicating lack of probable cause. This is very different from, just not having insufficient evidence. If you’re going to apply for an expunction based on, that was based on a mistake and false information you have to prove two things; you have to prove that the false information actually led to the person being indicted and that was also the reason that the case was dismissed. So that’s a, it sounds great, I mean my clients will tell me, “yeah the whole thing’s been a mistake” you know, well that’s not going to be enough to get you to do an expunction without wavering the statute limitations. Unless you can prove that it was false information and that was also the reason that it would. That’s why it was indicted and also the reason why it was dismissed.

Now if the charge is filed and dismissed, you have to wait until the statute limitations runs. so, we’re talking about you know, no statute limitations on murder, aggravated sexual assault, indecency, 10 years on your more serious misdemeanors, 7 years on fiduciary crimes; very these are kind of cursery run down of what the statute limitations are. 3 years on most felonies and then all misdemeanors it’s going to be a statute limitations of 2 years. So, when you’ve got somebody arrested and the case is later on dismissed, you can get that expunged but you do have to wait for the statute limitations to expire. Now, you need to consider the tolling provisions the things that stop the statute of limitations from running. One thing is the time absent from the state. I’ve never really gotten any blowback on this. If you’re client is from outer state they’re probably not going to considered the statute tolled just because he lived out of state. But the time during pendency of the indictment does not count towards the statute of limitations. So, in pendency the indictment starts when it’s filed, and it ends when it’s dismissed.

So all the time that you’re going to court for these people up until you get it dismissed that time’s not counting towards the statute of limitations. So the way you calculate that; just to be super safe now some of your jurisdictions are not going to care about tolling. In Travis County you’re never going to get something past our gate keepers of expunctions without calculating also the tolling provisions. So the way you calculate that, is you take the time from the date of the offense up until the date it was filed. So, on the misdemeanors it does probably going to be about a month, few months for a felony. Plus the time from when it was dismissed up until the present. And then you take out your, the time absent from the state if that’s an issue or and if you want to be real to particulate about it take out the date of the offense and the date of the indictment; those technically don’t count anyway. So once, the time before they were charged and the time from the dismissal to the present, once that is greater than the statute of limitations, that’s when you can apply for an expunction.

And you can also apply for this recommendation expunction. A recommendation expunction is where you get the, it’s kind of like that certification but, it’s a little stronger language than that. And if you get it past the prosecutor, I think a recommendation is a great thing to have in an expunction. Anyway, just in case the person ever has to show somebody the expunction, they can show them not only was it dismissed, not only did the court say that it should be expunged but the prosecutor recommended it for expunction. So, if you can get a recommendation on an expunction, then it has to be done by a prosecutor with jurisdiction to recommend it. And it has to be recommended before the person is tried for the offense. now, you don’t, it doesn’t, all that stuff we said earlier about the cases, it’s no longer pending, there was no court order supervision; all that doesn’t apply to this. The case does have to be recommended before they’re tried for it though so somebody who’s placed on deferred adjudication, when they plead, that’s the trial! so, you’re not going to be able to get deferred adjudication expunged and I’ve had that question but it does have to be done before the person’s tried for it and so it does run well for your dismissals that are inside the ‘Statute Of Limitations’. So, if you need an early expunction that’s the best way to go if you can get it.

The things you’re going to have to have in your petition: name, sex, race these are all in the statute and you can look in up later. Just all the person’s vital information case number in court, and then you need to have the DPS tracking number. Now, tell the truth; who knows what a DPS tracking number is?

ok. Right on. Let’s talk about what the DPS tracking number is. A tracking number is assigned by DPS to every custodial arrest. So, whenever somebody gets arrested and taken down there is a tracking number assigned to that. And the statute requires that you have that tracking number in your expunction petition in order. The places that these tracking numbers exist are; you can get it, sometimes it’s on the warrant so you can get it from the clerk’s office, sometimes at the jail who always keeps a record of it, so you can get through an open records request from the jail. The only other place it exist is on your clients criminal history information so they can go down give their fingerprints and get their criminal history information and that’s going to have that tracking number on there. It is imperative that you put these tracking numbers on these guys. And the reason for that is; if you don’t include it, then it gives DPS an excuse to trigger cases and ‘no records’ filed. ‘no records’ means that you do your expunction the court grants it, the clerk sends it off to DPS and they look at it and they say,” we don’t have any records on this person. and one of the reasons they do that, and this is straight from the horse’s mouth at DPS, their policy is that if you don’t have the tracking number on there and your arrest date is more than 24 hours; they’re going to consider that a no records case. And what that means is, is that your expunction is not going to go through and here in a minute we’re going to see why, your, why that’s much worse than even it sounds. ok so, you want to have in your petition the reason why the person’s entitled so, just say the indictment information was presented and dismissed, there was no final conviction, no probation, limitations period has expired or whatever other the reason, the other reasons are. And of course, you need to have the list of entities. All of the law enforcement, the arresting agency, the clerk’s office, anybody you can think of and you really need to think outside the box on this; for what agencies may have this information.

some of your bigger counties are going to have like a separate IT department which backs up all the files from the actual law enforcement systems so those are just an example of places that are going to have these records that just may not be intuitive so the best practice to figure out what kind of entities you have in a given jurisdiction are… what I do is I go to the clerks website and find out what all the departments in the County are and then if you really want to get hardcore about it is to do an open records request and who they sell to. See who these state agencies, who they sell information to or who they transfer information to and that’s going to give you an idea of how their paper trial goes. Now, it also says to list the federal depositories of criminal records. The town is on DPS to notify the feds after the case’s been expunged. so you don’t, it says to list it in there and you can do that, but really the effect of the order is the DPS has to notify the federal government and then the dreaded private entities; the background check companies that just flourish like fungus. And there’s no way you can cover every single background check company you know. I mean all it takes to start a background check company is to buy a database from somebody else and put up a website. So, what I’ve done on this is the private entities that I include in mine are a list; I just attach a list as an exhibit. It’s about a first 10 pages of Google or so of popular background check companies and then also the background check companies the DPS sell to. So you want to have all those in there. And the last thing you need to have is a verifying affidavit from your client; just saying everything in that perdition is true and correct.

I also think it is best practice just for you to put a clause in there for reasonable efforts to be made. And this is the thing that’s going to cut down on that; no records policy. What I always have the judge ordered is; that any entity who’s getting this expunction within 60 days they have to notify the court if they determine they’re not going to comply with it. And this is not an expansion of the statute; this is just the old rule that, a court can enforce its own orders. so, by putting that clause in there I’ve some judges raise eyebrows and cross it out and everything but if you’re not doing something to show the agencies that you’re going to stay on them and make sure that they actually do this and have some kind of enforcement mechanism on that, then it’s going to be a lot easier to ignore you. And then I also put a catch on privet entity. so, what I put in there is; any entity that purchases information from DPS, anybody who’s ever applies to purchase information from DPS, the private entities that have notified DPS that they have sold the information to anyone else and then entities who DPS has noticed that it was sold to. So that’s pretty comprehensive to make sure that everybody, the DPS can notify gets notified of the expunction. And then, as far as the list of private entities, you do have to have the facts and email addresses of these places. And a lot of them intentionally make it difficult to do that. So, it does takes a little bit of leg work to get all that information. But DPS will notify everybody on that list. But if you don’t have a list attached, then DPS is only going to notify the people they’ve sold to.

Another pro tip; use the initials of your client in the style. don’t use their full name and the reason for that is; if your expunction is denied there’s going to be a record of their full name on there. So if you ever looked at like a expunction case law… who knows who Judi Beem is? Judi Beem was the lady who… expunction cases go up to the court, to the Supreme Court, not the court of criminal appeals coz it’s a civil case. Well, Judi Beem case was one of the ones that were heard by the Supreme Court and basically in that case they said that Mrs. Beem has to wait until the statute of limitations ran, even on a Class C misdemeanor. Well, my point on this is; Judi Beem didn’t expect that people were going to know her name. Ok? When she went in for her expunction. And so what you should do is, but I mean she’s famous now! and all she wanted do was get her case dismissed so, when you’re doing an expunction you put the person’s initials in style so that if it gets appealed, they’re not going to live on forever in the South Western reporter. And make sure you have the current statutory language. a lot of, too many of us are using forms that we got from the other lawyers or from the law library, and you know expunction law, it changes with the legislature but it also changes you know just with, at the whims of the courts of appeals. So just make sure that you don’t have any kind of outdated or extraneous language in there or the court could very well deny you. You want your petition to be as bullet proof as possible. So just track the statute if at all possible.

Ok, so the filing procedure’s pretty straight forward. You just file it at the district clerk. Some courts are going to require you to have a copy for each agency, some courts are going to require you to notify each of the agencies themselves. So that’s going to vary on your jurisdiction. and at the hearing your client may or may not need to appear at the hearing, but if there’s any question that you’re going to have to prove up to your pleadings, make sure your client is there. Because the verification that your client signs that is not enough to prove it, if they, at the hearing. So, what you want to do is make sure that your, you’re not going to get any opposition, so you just kind of gauge opposition from the date before the hearing. Talk to the state. now the Texas rules of procedure to apply to expunction and so, we don’t get, they’re don’t give you whole lot of solace, you know you can talk to the counsel for the state to see if they’re going to come in and answer at the time. They’re supposed to file an answer within 20 days plus Monday but… does anybody know a judge that does going to file a default expunction order? Against the state? Now, I don’t either so, so they’re supposed to follow those rules but the state can just show up and oppose you at the hearing. And you want to make sure that’s not happening, if you can cut it off.

And then just, like I said; have your client there and be prepared to prove up those pleadings. And make sure you get 2 certified copies of those. One for you to keep when your clients copy dies in the fire. I’ve even have that happened already! So make sure, and important thing about this is; you got to have a copy of that because an expunction gets, an expunction is destroyed on the year anniversary of the hearings. So, if you don’t keep a certified copy of it, you’re not necessary, you’re. If your client needs to prove later on that they have an expunction done, they’re not going to be able to do that by getting a copy from the clerk. So, make sure you keep that. The fact of the order is that the use the records for any purpose prohibited, the petitioner may deny the arrest, the occurrence of the arrest and the occurrence to the expunction in every case except from one. And the only time they can’t deny it is if; they’re under oath in a criminal proceeding, they can say or anybody else on their behalf’s can say the only that the matter was expunged. Now this they may say that it was expunged. That doesn’t includes somebody who remembers what happens from testifying from about it. But if the person wants to all they have to say is; that matter was expunged after it’s been completed.

Now, as far as allowing the person to deny the existence or occurrence of the arrest. May deny does not mean that you should deny and there are some important instances in which it’s not a good idea to deny it even though the expunction has been gone through. The big one is; immigration. The immigration the USCIS does not recognize state expunction. So if you have a client who’s applying for naturalization and they don’t admit that they were arrested for something that has been expunged, the feds are not going to recognize that and that could cause them a legal status. They may not get their green card or naturalization. So, beware of the limitations of that and it does take some time for these records to be expunged as well. The state and the agencies they get the expunction, it takes them sometime 2 or 3 months before they start sending the files back or sending the certification back. So, until that has actually been done that information could very well show up on background checks until it’s physically been expunged. So, until that time, you might want to consider other approaches to just straight up denying it. It may be the kind of thing where if your client has got a recent expunction and they really want this job it may be better for them to go in and say, like I was saying earlier; it was dismissed, its expunged, the prosecutor recommended it and I’m telling you coz I’m a stand-up guy, you know I don’t have to. The law allows me to deny it, but I’m going to let you know about it as well.

Last thing, compliance by DPS and by the other agencies; compliance is extremely important to make sure that you’re actually getting something for your expunction. You want to check the clerk’s file to make sure these files and these certifications are coming back because otherwise, you’re not going to know whether anything has actually happened on them. If the agency has the records, and they send back a certification that; they haven’t complied with the expunction because they don’t have any records and you know they have records, well that should tip you something off that there’s something wrong with your expunction. They’re claiming they don’t have these records, you know that they do, and that gives you a chance to fix that and say; why aren’t you claiming that you don’t comply with this, we know that you have the records, what’s the problem? And it’s a good idea to invest with the membership, at least with one of these background check companies. pulicdata.com; they had their problems in the beginning but it’s a lot more accurate now. So, that’s the kind of place where you can go check and see if your expunction has been really complied with by the private agencies. And then also get your client to get a copy of their criminal history from the DPS or the FBI. And one last thing on the DPS; in every case the DPS is going to send back an affidavit that they have complied with. So, we talked about earlier about the ‘no records trap’ where they’re going to, they’re going to say; we don’t have any records we’re not going to comply with the expunctions. Well, they’re going to send you back an affidavit that says they’ve complied with it. It doesn’t mean that they have done that! Ok? All that means is that; they have looked at it, and in so far as they’re aware based on the information they have, as far as they’re concerned, they’ve complied with it. Ok? But, what you’re getting is the exact same certification that you would get if they actually had complied with it.

So, you have no assurance that DPS has done anything at all. so if it’s a ‘no records file’ they’re going to send back the same certification that they would so, it’s very important that you have your clients go back to DPS get their secure criminal history information to see if DPS has actually done it and that’s really the only way to do it. because, like I said; the file gets destroyed on the first anniversary and the best practice though is to order the file to be returned to you instead of destroyed at the end of that year and that way you know you’re actually getting something for your expunction, you know that you actually have physically in hand the certifications and the file that has been expunged and so you know you’ve done something for your client. So, I’m afraid that’s all of time but,

Now, the statutes that you need to consider are in the court of criminal procedure articles 36.13 to 36.19. If you haven’t pulled out the court of criminal procedures and looked at those statutes, I suggest that you do! Often tell my students this at Saint Mary’s. Just get out your code and read the definitions. Read that part of the statutes. I’ve heard several speakers mention that today and that is; pull the statutes out and look at it. You might refresh your memory, you might learn you’d forgotten or you never knew in the first place. But never fear going back and looking at the statutes. The general framework of the charge! Ok. we appellate geeks you know use different tags for things as to appellate judges and I’ve found that young trial attorneys often get intimidated by those tags, it’s really very simple. Its sorta like computer language, it intimidates people like me.

Ok! The first part of the jury charge is the definitional portion. We call that the abstract portion of the charge. That’s where it’s basically definitions that are found in the code. If there’s not a definition in the code, then you should not have a definition, given to the jury. And a point on that I want to point out; have any of ya’ll had cases with a prosecutor tries to tell the jury what the law is? I mean I’m just guessing you know, just saying. Ok! Well, don’t let them do that. There’s only one person who gets to tell them what the law is and that’s the trial court through the jury charge. Don’t let the prosecutor pontificate, read from books what the law is unless it is in the jury charge and only then can they read from the jury charge. Also, you need to look at your indictment. I know! What a concept, but pull out your indictment and go back and look at it. Because sometimes we get so caught up in the details we forget to back, pull out the statute of the offense, look at your indictment and see; what the elements of the offense are! The jury charge should be restricted to; the indictment and the evidence put on it [30.46]. Non indictment theories should not be in your jury charge. Now let me ask some of you folks here; who prepares the jury charge in criminal cases? Who do ya’ll think?

the court reporter or the clerk of a court. That’s right! The parties really don’t create the charge like in civil cases. But I highly recommend to you, when you have the opportunity which you may not, but definitely try; get the charge the night before you charge conference. Usually the clerks that work for the trial court or the court reporters in some cases or perhaps the DA’s offices pre-prepared the charge, and created a charge bank for the court. Get that ahead of time, look at it, read it, compare it to your statutes. Because many times the people preparing that charge either aren’t attorneys’ or they’re very very young new briefing clerks who are working for court administration. I’m not saying that they’re not intelligent people, they are! But, they’re not attorneys’ who’ve taken the Rusty Duncan courses like you all. So, you know to go back and look.

Now defensive theories! This is where I think some prosecutors get tripped up sort of like Brady, ok! Trial court who are former prosecutors and never done anything else like some of them in Bare County. They tend to think that if the evidence is unbelievable or they think it’s stupid or they don’t like it, that you’re not entitled to a jury charge on your issue, on your defense issue. That’s not true! That is not up to the trial court, of course I’m talking about; jury trials coz theses are jury charges but that is not up to your trial judge and it’s not up to the prosecutor. Any evidence from anywhere whether it’s believable or not, raises your issue! Hammer it, make sure you get a charge on it, don’t accept no for an answer. What you need to remember also is that any jury charges you want, you must submit in writing to the trial court, that’s a new answer I’ve really started noticing from the Court Of Criminal Appeals and a variety of Courts of Appeals, if you have not submitted you jury charge in writing, it’s going to be over ruled on appeal though say it’s not properly preserved. And if the court does give a charge on something however, it has to be correct and we’re going to talk about problems with the jury charge. Now when I’m on most hated cases in my entire life and the 25 years I’ve been practicing law is malic! How many people are familiar with malic? I call it malic the horrible, it’s the dumbest case ever read, ok! Does anybody agree with me? Yea! May be, it is stupid! Ok, it is stupid.

Let me explain why I think that. Ok Malic says that “If there’s problems in your jury charge, the appliqué court is going to way the sufficiency by a hypothetically correct jury charge” ok! Not based on the indictment what Benson and Busser used to tell us, it’s going to be based on the hypothetically correct jury charge. What the hell is that! Ok why am I giving you their definition. Ok! A hypothetically correct jury charge, such charge would be one that accurately fits out the law is authorized by the indictment does not unnecessarily increase the state’s burden of proof unnecessarily restrict the state’s theories of liability and adequately describes the particular offense for which the defendant was tried. Ok, anything about defense rights in there? May be? No! How do you know what the jury relied on, if your jury charge’s messed up, that’s why Malic makes no sense to me. When I was the chief public defender here and I’m not currently but when I was we spent 6 years fighting this battle, trying and trying through Brooks and Fuller and many other cases, trying to get the court to undue Malic! Well until the presiding judge dies or retires, it does not going to happen! Ok, so I urge you to be careful with your jury charges and keep a solid eye on it because sufficiency will be measured as if the jury charge as correct!

So will be very hard upturning, overturning a case on sufficiency of the evidence based on jury charge error, Ok! Let me talk about talk about this for a moment, we had a case of my firm I think Mick Geris here I saw on earlier from Jim Well’s county which is out less. We had a cold case murder, we were handling on appeal. Horrible case, horrible case, dead girl been missing for 20 years, all they find is her bones and there’s really no clues hardly at all about what happened to this girl except one near do well who I think is the actual killer but when near do well who happened to be just be the State’s star witness ok. He’s the one who come forward with all the information and he knows everything and he was there and everything else to convict our client. Now incredibly at trial for the first time, this witness decided to testify the instead of the young girl being stabbed [as ledged] in the indictment that the killer “our client” held on to the knife blade and bludgeoned her with the handle part! Ok! What do you do with that? Well we tried every which way to get that undone and we haven’t but maybe doing Habeas here shortly. But the Court Of Criminal Appeals explain that, that there’s no variance there. That there’s simply manner and means, the gravamen of the offense is still the conduct and the result of the offense, murder is a result oriented offense which means you have to intent to kill! Alright, so the only issue left when we’re looking at manner and means, the only issue left is “Was there notice to the accused?” was his defense harmed in any way? Now if you’re [curt off] guard in trial where the big fat lair star witness changes a story, how are you supposed to defend against that and think 10 steps ahead? I don’t know! I don’t know!

But I found this case very very disturbing because the star witness was so unbelievable and completely flipped his story on its head but the Forth Court Of Appeals and Court Of Criminal Appeals said “That’s ok!” pops sorry! I keep forgetting to change my little slides here.

Ok I think, I think they faded amount because I forgot to keep changing them, sorry about that I got so excited here. Hypothetically correct recharges we’ve talked about that, ok on grounds of we’re not submitted to the jury. Ok! Let’s talk about “Byrd”, alright when we’re talking about theories that cannot be a harmless evidence that are a fatal variance, let me explain, this is one of the few cases I’ve seen in the last 15 years this harmful and Mike Robbins from the public defender’s office here handled this case when I was chief there. And this is kind of a funny case because it’s not something real real serious but [inaudible] Byrd was a shoplifter at Wal-Mart. Now! So this is a Mr. meaner courts from us than you prosecutors are and what the young prosecutors proved was that Wal-Mart was the victim of the theft. Ok, alright Wal-Mart usually kind like [K-Mart] used to be, you know that’s foremost shop lifting cases come from.

But the charging instruments said “Mike Morales”, but the prosecutor never linked up who Mike Morales was? What did Mike Morales have to do with Wal-Mart? Never linked it up and I have to tell you that the prosecutor on appeal fought this case tooth and nail, fought it fought it fought it but Halleluiah! We had Cathy Cochran write the opinion, again a very thoughtful considerate well informed opinion and she said that “A rose is not… may be a rose but it’s not a pickle” that’s what she read in the opinion, Byrd versus State “BYRD” and what she meant with you still have to get the person right. You have to get the correct victim. Ok! We had another case one time and I’m not going to say names on this one because all three of them are sitting district judges in the state. So, but they forgot to [inaudible], this is back in the day when we would cut the steps out and tape them on the [plead forms] do I remember that. Ok! May be some of the great [haired] people like me in here remember that cause we didn’t have computers. Most of us fall in that category, pre-computers or after computers ok?

Now! I was a pre-computer since I’m 50. So what happened was when they cut out that portion, put it on the steps, they cut out the language and forgot to include that said caused the death! Ok trial judge missed it, prosecutor missed it, defense attorney missed it, and so the client plea to a perfectly good aggravated assault not murder! Ok? It kind of a big problem there! In the state’s argument that well he knows who he is and he knows what he did and we shouldn’t have to put it in there, did not fly ok? You have to have that particular language in there. Ok murder is result of conduct crime ok we talked about that, I hear crickets from somebody’s phone, was that a hint? I got it! Ok, they application paragraph, let me go back, the application paragraph, that is the portion of the charge we’ve talked about the definitions. Ok the application paragraph is that part of the charge that says “Now if you so find that Betty Blackwell did strike Angela Moore with an object unknown to the grand Jury causing her death! You will Betty Blackwell guilty of murder” ok that’s the application paragraph, that’s where they take the allegations and the indictment and they apply to the facts of the case. It’s very very simple.

Now the application paragraph cannot include allegations that were not proven at trial and they were not in the indictment but what the appliqué court do is if it is given in the definitional portion correctly for example law parties and it’s not given in the application paragraph correctly, they will find [inaudible] so you need to make sure that its properly given to your jury.

Culpable mental states, I want a harp on this too long because this is kind of go back to law school days, but recklessness if you prove a higher degree of culpability, you have proven the lower levels. So then you have a lesser included offense, not a variance! And the trial judge may instruct the jury on any lesser included offense for which there’s some evidence presented to rationally convict the defendant of the lesser offense. So you want to make sure that if you ask for a lesser included offense that, that is a lesser included offense of the greater charge. Let’s see, ok we talked about… ok defensive issues, you are [] to defensive issue based again as I said a moment ago on evidence no matter how incredible it is, no matter how unbelievable it is, whether the trial court believes it or not.

Now how will they measure sufficiency of the evidence on appeal when the jury’s reject it that affirmative defense. Well there’s a case that came out this year called Matlock, it’s a 2013 CCA case in [] paper and Matlock talks about that it will be measured by the CIVIL standard, the rejection of the affirmative defense is measured by the CIVIL standard of sufficiency of the evidence. So basically if no rational juror could have rejected that affirmative defense for much like our legal sufficient [inaudible] in criminal cases then the appliqué court can say that the leme see the language, then the appliqué court can say that the affirmative defense was proven and that the jury was irrational in rejecting it.

Ok Almanza is normally the standard of review; I can tell you just based on my experience that the Court Of Criminal Appeals does not like Almanza. They call it “Almanza- The horrible” much like I hate Malic and there are steps being taken in their opinions where I see where they’re trying to get rid of Almanza, don’t let em’ do that. What Almanza says is that “If you objected trial, then you only have to show some harm but if you do not object trial, you have to show egregious harm. Ok while showing egregious harm with this court is pretty near impossible, it’s very very very difficult! Except with our Wal-Mart and Mike Morales case but showing some harm is even more difficult because it’s a lesser standard. But the Court Of Criminal Appeals is positioning itself where I see they want to do away with almanza and that if you don’t object then they’re not going to look at it! Just like other types of issues.

Commenting of testimony, now you have to be careful when prosecutors come up with their own charges or even if you come up with your own charge. The case is never rarely, reversed just based on the defense asking for jury charge. And sometimes as a matter of strategy you may [inaudible] you know what? The state didn’t prove their case, I’m not going to ask for lesser includes because I don’t want the jury to have something to hang its head on. Now that’s a tough call for you and your client, that’s a tough call! You’re the one who’s sitting through trial, you’re the one who’s going to have to decide on that with your particular jury but the trial court cannot make a comment on the way of the evidence. Like the case Mark Stevens was talking about earlier today where the trial court took it upon himself to says “Well if it were me, I would go ahead and tell my side of the story but that’s just me” ok well that was a comment! Clearly comment, now they found that it wasn’t harmful because it wasn’t an objection. Ok so object everything, put it in writing and make sure that you have it on the record that you disagreed with any comments or any jury charges given that you consider a comment on the wait.

Another thing to look at for is burden shifting, I’ve talked about moment ago, I had a conversation with [Clears throat] John Bradley, if you can call it a conversation and he was teaching at this one seminar couple of years ago and he was teaching this mixed group of different disciplines on DNA evidence, he was telling the prosecution that they should point out the defense could’ve brought their own DNA evidence and they chose not to. Ok I think that’s burden shifting you know I got a decision about that in front of the whole group and we have a difference of opinions on that. Do not let the Government or the state lessen their burden of proof, fight them on that every step of the way if he know a particular prosecutor is inclined to do certain things, follow pre-trial motions! Object on the record, ask for an instruction to just regard and then ask for mistrial. That’s the only way you’re going to preserve that kind of evidence, that’s the only way you’re going to preserve that kind of error!

Excuse me! Conjunctive allegations and disjunctive submission, that sort of sounds like a [I am faction] I know but that’s not! What we’re talking about their conjunctive means and disjunctive means or? Ok that’s really all it means. Some of my students get really confused about that, they think it’s something really really profound and horrible but it’s not. But basically the Penal statutes list the various ways of committing a crime in the disjunctive. The state’s pleadings should allege methods of crimes in the conjunctive that mean ain’t. Ok the court should instruct the jury and the disjunctive if evidence supports all the allegations so what we’re talking about there’s manner and means. Did he do it by strangling her with the ligature? Did he do it by stabbing her with a knife? Did he do it by shooting her with a gun? That should be or otherwise you’re not going to have jury unanimity which is also very very important.

Be careful of allowing a conviction on less than a unanimous verdict. Submitting two separate offenses to the jury in the disjunctive can cause a conviction on less than a unanimous verdict. So you still want to be careful with that.

Lesser included, we’ve talked about that, a jury cannot convict the defendant of lesser included offense of… of lesser included offense, it’s not submitted in the jury instructions, that means a jury can’t take it upon themselves to go back in the jury room and come up with their own offense or nor can the state argue that to them and urge them to find something that’s not in the jury charge. Ok, we’ve talked about result and conduct oriented offenses. Ok, supplemental jury instructions on the law of accomplice witness testimony given to the jury after jury argument began was not harmful because the instruction benefited the accused. Now this same case [inaudible] I was talking a moment ago, out of Alis at a Jim Wallace county I had a big problem with an accomplice witness charge not being given. And it was objected too all over the place, properly requested! And the star witness, basically the only proof the state had, was this cohort who was supposedly with my client when the killing happened and they said he was not an accomplice of course as a matter of law because he wasn’t charged but they wouldn’t even submit accomplice as a matter of fact for the jury’s determination. I urge all of you, when you have this type of scenarios; ask for that! Ask for an accomplice as a matter of fact. Why? Because they have to prove collaboration. Ok? They have to prove collaboration; someone can’t be convicted just based on a testimony of an accomplice. And that’s a big issue, so hang on to that.

Note taking! How many people… does your jurisdiction allow jurors to take notes? Anybody? Yeah? Ok. Well, some people think it’s good some people think it’s bad. I’m a note taker, notes would help me if I were sitting through you know the judio-arias trial. I think note taking might help me keep up with things. But again, I’m 50, so I have to take notes or I won’t remember. So, it just depends on your jurisdiction, it depends on your jury. [] depends on your facts whether or not you think note taking is helpful. But I’ve included in my papers ‘sample instructions’ to allow note taking or not to allow note taking because generally, if you are allowed to take notes, as a juror you’re not allowed to share those notes with the other jurors. You cannot become a fact witness in this case. Ok, those are 2 sample instructions. Ok! Again if during jury deliberations, a dispute arises as the testimony presented they have to note the dispute and then they can ask for the record to be read back.

Ok, disallow note taking, talked about that. Fifth Amendment concerns! I’ve never seen a situation where I would not want the jury charge about the defendant not testified if my client didn’t testify. In other words, the jury is instructed that they cannot use that as evidence against the client if he or she chooses not to testify. Now there is case law that says; if you don’t want that in there, from the defense perspective, you don’t have to have it in there. I can’t imagine why you wouldn’t because I think it’s very important to remind the jury that that is not evidence of the accused guilt. How many of you people have actually sat on a criminal jury? Anybody? A few? I know they left me on the jury in my hometown of Burney right now. And I was certain I would get strutted but I wasn’t! And I’ve to tell you it’s one of the best experiences I’ve had in a long time, and it was a misdemeanor; possession of marijuana. And we found him not guilty.

they won’t make that mistake again, right? Yes, ok. But I was really impressed with the thoughtfulness of the jury, they did read the instructions, they did follow them and they did consider all the evidence. So some of my Sinicism from reading so many cases and seeing so many cases, it was lightened a little bit. My Sinicism was lightened because these jurors really did take it seriously. So, you need to just weigh your experiences by your different jurors in your jurisdiction, it’s just going to depend. But again the law does presume that they are going to follow the instructions. Ok. The same is during the punishment phase of trial that if you request it, you are entitled to a charge on the defendants not testifying on his own behalf. If the prosecutor comments on that, that’s a ‘Doyle error’, it is reversible. Ok [inaudible] commenting on the accused there to testify has always constituted an improper prosecutorial trial tactic. Things such as: well the only person who knows didn’t testify today. Or, the dead person is the only person, he knows what really happened. Ok? Or you never heard Mr. Client say ‘he sorry’ that’s what’s all ‘Doyle error’ ok? Don’t allow it, object to it, file a pretrial motion or a motion alimony urging that the prosecution not engage in that. And again the defendant can reject that instruction on [inaudible] testify but I’m not sure why they would want to.

Ok, jury unanimity! That’s very important when you have different manner and means. But the court of criminal appeals has been very consistent in holding that the jury does not have to agree on the manner and means. They only have to agree on the gravamens of the offense which really kind of flies in the face of common sense but, that is the law. Ok. Ok. Different offenses have to allege in different paragraphs. Excuse me, different counts! Ok? I know we’re all a little tired right now. But I’ve seen courts of appeals very confused on counts versus manner and means. A count is like count one, murder, count, two, might be robbery. Two different people, ok? Those are 2 separate offenses. But when you’re talking about manner and means strangling with the ligature, stabbing with a knife, or shooting with a gun; you’re talking about manner and means. So you would have: offense, ok count 1, and then you would have paragraph A, B and C, different ways. So paragraphs are your manner and means, counts are the different offenses. We talked about focus of the offending gravamen. The appellate courts are only concerned with the gravamen of the offense. Ok? That is result oriented crime fight murder. That means you have to intend the result, not just the conduct. Now the court of criminal appeals, some of us are old enough to remember ‘Geesa’ I think Charlie Bare wood Geesa, a wonderful case that told the jury that if you have a doubt that we caused you to hesitate in the mis seriousness of affairs, something like that, then that’s the reasonable doubt! Well, the court of criminal appeals Paulson versus state in the year 2000 reversed Geesa. The jury is never charged on what the reasonable doubt means, it’s whatever they wanted to mean. So what do we do with that? I think that Mark’s suggestion of using that stair step and comparisons beyond a reasonable doubt with clearing convincing etc. I think that’s a really good way to explain it to the jury since you will not get a jury charge on that. Now, if the state and defense agreed to submit the Geesa instruction you can!

Now, I don’t know any prosecutors in the 4 or 5 county area I practice in that would agree to that. But maybe you’re fortunate and you can get someone to agree with you. I’ve never seen it. Conclusive irrefutable… I can’t talk I’m so tired I haven’t had a beer, conclusive irrefutable presumptions are unconstitutional. For example in 2202 ©. That is a rebuttable presumption but what that is, that has to do with killing of police officer and you know what’s a police officer, because he was in his distinctive uniform; that’s what 2202C talks about. Ok you can’t, the state cannot give jury charges based on the natural or probable results of their conduct. No! Those are not allowed. It’s unconstitutional to instruct a jury that the law presumes to intent the kill where deadly weapon was used or that the law presumes that a person intents the natural improbable consequences of his conduct. That’s a burden shifting. Ok, so read your jury charges. Make sure language like that is not in there. Also, instructing the jury that it can make inferences from various pieces of evidence can constitute a comment on the weight of evidence. So, the jury can make just reasonable deductions from the evidence, but they cannot decide issues based on speculation. That’s basically what that [inaudible] means.

Mandatory rebuttable presumptions! I know it sounds like Rebacken law school, doesn’t it? Jury instruction that shift the burden of proof as to any element of an offense to the defendant is constitutionally infirm instructions shifting the burden of persuasion on the element of intent after State proves the predicate acts violates of 14th amendment and creates a mandatory rebuttable presumption. The following instruction was ruled unconstitutional in Francis versus Franklin: the acts of a person of sound mind and discretion are presumed to be the product of a person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted. Ok, that was found unconstitutional. That was burden shifting. Ok, Section 2.05 of the Texas Penal Code provides that when the Penal Code or another penal law establishes a presumption with respect to any fact, it has the following consequences: if there’s sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact. What does that mean? I’m not sure. Honestly, I’m really not sure what that means.

Immigration Consequences Deportations for Criminal Convictions

By | Immigration

Where it’s illegal to possess or sell Phantom ware automatic sale suppression devices. I didn’t even know what these were so I looked them up and they’re devices or software used to falsify sales data on electronic cash registers and I guess businesses have been using these to avoid payments of sales tax. It’s a State Jail Felony if you do that.

The other thing is License Plate Flippers, sorry to let you know that they are now going to be illegal. And a person it’s going to be, with criminal negligence, possess, purchase a license plate flipper you’re going to be subject to a Class B misdemeanor if you possessed, Class A if you manufactured, sold or distributed. The other thing that’s now illegal is Salvia Divinorum; it’s added to penalty group 3.

Victim Input; there are couple of things that are I want to mention that there were something added to the TDCJ, Sunset Belt has nothing to do with TDCJ but, there is going to be two new requirements that: “the judgment must reflect whether a victim impact statement was returned to a prosecutor and a Judge prior to sentencing has to inquire of the prosecutor whether a victim impact statement has been returned, and if so, they must consider that information. This was a big deal with death penalty advocates and the house bill 899 basically tries to make the DIVO which is defense initiative victim outreach, pretty much illegal. It allows now this bill, victim of capital felonies, a right to receive by mail written explanation of DIVO and the right not to be contacted by a victim outreach specialist unless, the victim has consented to in written notice consented to that and if that person has designated a victim services provider to receive all communication.

So I feel bad for people that are in this area of the law because it’s going to be very hard to get around this. I think this also subject to challenges and his right for challenge. On the basis; its illegal, prohibits the defense from investigating and this bills was in response, really to an overreaction of a single episode that was really blown out of proportion and it’s also response in our opinion to excessive DIVO which has had a good impact of decreasing public support for capital punishment, especially by victims. Enhancements!…what time is it?
Audience: you’re ok.

so couple of enhancements I want to talk about. This is a really important one “Life without Parole” as David had mentioned, basically for the second conviction for “sexually violent offense” against a child under 14 or a continuous trafficking of a person, so on a second conviction for either of those it’s auto life without parole. What the bill does is that it defines “sexually violent offense” it’s a references, we previously had a definition of that under 62.001 of Code of Criminal Procedure. So there’s a list of those offenses. So the sexually violent offense requires to be one of those and it requires that the victim be under 14. So how the bill works, by the way it also says sex offenders sorry you don’t get to work at amusement parks, you cannot work as a cab driver, bus driver or limo driver.

So this only applies to defendants who are 18 years or older so it actually excludes Juveniles. One thing I want to mention because this is a hot topic right now is, there is a special session bill added that affects us and that is; Senate Bill 23 and so there was a hearing yesterday in the senate, so essentially the legislator’s currently attempting to work around the Miller decision, the Supreme Court decision that said that; automatic life without parole sentences for 17 years old are unconstitutional. So there is a bill filed last session that did not pass and so the prosecutors have been really freaking out about that and have convinced governor Perry to add this to the special session call. So we’ll see what ends up happening with that.

Accident or injury involving personal injury or death; 2nd degree, now you can get consecutive sentences for injury to a child, elderly or disabled individual, false alarm at university is state jail. Obscenity is now going to be 2nd degree of the material depicts a child younger than 18 engaged in any sexual act. Also, prostitution this is a big deal. This was under House Bill 8 which is a human trafficking bill and a lot of the changes have nothing really to do with human trafficking but if the prostitution, if the victim or the prostitute is a person younger than 18, it bumps to way up to secondary felony. I’m not going to have time to cover the Online Mug shots but it’s in your paper. Essentially every single one of my clients now ask how they can remove their faces from these online mug shot places and there is a provision that the law now is going to allow, it’s an interesting bill so take a look at it but essentially there’s a provision if the information is inaccurate that the law’s now going to allow you to basically try to remove that through a prosecutor or an AJ. So it’s a little bit interesting, the wording of this but anyway we were going to talk about juvenile stuff and money laundering stuff that but we are running out of time all that is going to be in our paper and if you have any questions, our contact information is listed in there as well so thank you so much.

I would really like for you all to understand what all these people have done for us. For the last 40 years Texas Criminal Defense lawyers has tried to improve discovery, for the last 30 I was involved in it and never ever did it get anywhere near what has happened. We were always hammered over and over and over again with reciprocal discovery. You will see the senate bill 1611 does not have, where we have to turn our file over. It is solely on the shoulder of these people.

Immigration consequences for Criminal Convictions

Most importantly you have section 101A43 of the Immigration Nationality Act and section 237A of the immigration and nationality act 101A43 defines aggravated felonies is the list of all offenses that are aggravated felonies and an aggravated felonies was submitted to client to automatic deportation. Section A237 of the act defines other deportable offenses. Other offenses which your client can be deported but for which they may be a waiver available, those includes drug offenses, crime involves moral turpitude, unlawful carrying of a weapon, domestic violence and other offenses. Just a quick recommendation; when you get back to your offices, print out those two section of the act, put them in a folder and have them with…

There are two sections of immigration national act to define aggravated felonies and other deportable offenses. I would recommend printing those out. Having those in your files, anytime you talk to a client who’s not a US citizen, you have that. You also have in your materials two articles I published in the Voice for the Defense; one is on immigration consequences for criminal convictions it’s basically the Cliff note for today’s lecture. The other is an article appeared about 8 months ago, on dealing with immigration hold and ICE detainers who are becoming a very very common problem.

Padilla v. Kentucky is the Supreme Court case that said, “That a non US citizen who has not been properly admonished on the immigration consequences for his conviction by his defense attorney has had his due process right violated. Now, Padilla v. Kentucky does not require you all become immigration law experts. What it does require you all to do is if you have non US citizen warn him that this offense, if you plead to this, it may result in immigration consequences in your deportation. However, as result of today’s presentation I hope we learnt is that there’s a lot you can do, pro-actively at the pre-trial stage to tailor the offense we’re going to a lesser included defense or tailoring the sentence to offset or erase the client’s removal consequences in a proactive way, that will make you a better attorney. The base line when dealing non US citizen clients is; know your clients immigration status. Is he a permanent resident? Does he having a green card? Is he a lawful permanent resident? If so, find out how long he’s had it. It will stay in front of card “lawful permanent residence since 1999”, “lawful permanent residence since 2003”.

No 2, find out if has any prior convictions, because your client maybe facing a charge now that maybe removed but in fact he already may be subject to deportation. Because six years ago he pled to unlawful of carrying of a weapon or possession of control substance or one of these other offenses we’re going to talk about that may already make him reportable. The other note, did he acquire US citizenship? I’ll talk about that in a little bit more in a minute but just find out this; if your client is in his mid-20 and one his parent’s father or mother naturalized became a US citizen through naturalization before he turned 18, your client may in fact already be a US citizen. So just the quick question to ask your client: if he’s in early 20’s, he’s got his green card? “Is your mom or dad are US citizen? Did they naturalize”, if the answers is yes you in fact may already have a US citizen. He may have acquitted back when mom and dad naturalized. If your client is illegally in US, he doesn’t have papers, doesn’t have green card, does he have a petition pending through a family member? He may tell “no I don’t have my papers but my wife filed this application for me, she is a US citizen; I got this letter from immigration showing I’ve been approved since 2010. I’m in line to get my papers” or maybe his father who is a lawful permanent resident of US citizen filed his papers for him 8 to 10 years ago. But the waiting line is so long he’s still in line to get his paper but he does have an application pending that will help us if he gets immigration hold that will help on that on the other side of it.

It will also tell you in some situation what you need to try to do with the underline offense to try to save him the opportunity give him residency. And the third thing to find out has he be previously deported? Has he been sit back before it’s not his first rodeo? That will effect a lot of things as it has been deported before once it goes back in to ICE custody he may not have a right to abode him may be to automotive deportation again. And in some cases you may find out that he was deported because five years ago he was doing two years in TDC, completion his sentence he got deported back, then he came back illegally in which case if your client has been deported before and had a previous felony conviction he may face felony charges for illegal entry after previous deportation. The US attorneys are cramping down on those especially with people who were deported for aggravated felony convictions. So that’s your baseline. Find out your clients immigration status before you go from there. Two ground rules when dealing with immigration situations, no 1; a deferred adjudication is considered a conviction for immigration purposes. So if your ¬¬client gets deferred or you take a deferred he will have a conviction. Now there are situations where you can use deferred adjudication to medicate or erase removal or deportation consequences. And I am going to talk about that in a few minutes.

There are ways when you can differ to erase a deportation consequence. So just be aware of now that differed adjudication will be a conviction for immigration purposes. The second ground rule, a suspended sentence equals as same as actual sentence imposed. So if your clients get three years TDC for suspended for three years’ probation under the immigration act those three years TD suspended sentence will be the same as three years in TDC. And here’s why that’s important, theft offenses and crimes of violence become aggravated felonies under the immigration act if your client is given a jail sentence of one year or more imposed. So even that suspended three for three will result in an aggravated felony conviction an automatic deportation for your client if he is convicted of crime of violence or theft offense.

This is where you can use a deferred adjudication because the deferred adjudication does not carry that suspended sentence. So if you got a guy who is arrested for burglary of habitation, the prosecutor says,” first offense, I will give you three for three”, if you take that your client will be subject to automated deportation because of the aggravated felony of three years suspended sentence and actual sentence over one year in prison automatic deportation. But if you go back to the prosecutor and say “hey I can’t take that, that’s an aggravated felony under immigration law but how about if we take five years deferred” the prosecutors get its extra pound of flesh and extra year to insist him. The deferred adjudication does not carry that suspended sentence; your client avoids the aggravated felony consequence. He still may be deportable under one of the other sections for crime involving more turpitude but at least in the immigration court by avoiding the aggravated felony conviction you will give them an outback and a chance to maybe stay in the US. So those are two ground rules that you will be aware of.

Removable offenses! Aggravated felonies! Aggravated felonies are automatic grounds for deportation. If your client pleads guilty to an aggravated felony he will subject to automatic deportation and will not matter if he’s had his green card for 25 years. It will not matter if he has his green card for 25 years, it will not matter if its first defense, it will not matter if he has served in the United States marines and honorably discharged after serving the tour in Vietnam and that was Mr. Podia. In Podia vs. Kentucky. He had no prior convictions at had his residence and have green card over 25 years. Honorably served in US Marines at Vietnam but was charge and pled guilty to possession intend to deliver a truck load of marijuana through Kentucky. And his defense attorney told him don’t worry you’ve got your green card all these years, you had no priors, it’s not going to be a problem and it was. Some offenses are aggravated felony by virtues of the offense. Murder, rape, sexual abuse, a minor drug trafficking, money laundering, fraud over $10k, alien smuggling. If any of your practice on the border Laredo, Al Paso, Browns Ville you will see alien smuggling is a common one when you have a situation where it’s a family member; cousin lives in US he got to try bring in couple of cousins

He gets arrested charge with alien smuggling. There’s no money involve, no exchange of money. It’s not a chaotic situation; just helping couple of cousins come over. If he pleads to that he will be deportable for aggravated felony conviction. So other offenses, theft and crimes of violence only become aggravated felonies if there is a prison sentence of 1 year or more imposed. That goes back to where talking about a few minutes ago. Remember a suspended jail sentence is the same as the actual sentence imposed. So if you get a client who is arrested for assault domestic violence. He pleads 365 state jails, suspended for 2 years’ probation. Your client is now an aggravated felon subject to automated deportation. If he takes deferred the suspended sentence does not exist he may still be deported under the section of law. But he will avoid the aggravated felony consequences.

Likewise with theft offenses, your burglary rehabilitation 2 for 2 that’s an aggravated felony. If you get a deferred 5 years deferred you avoid the suspended jail sentence, you avoid the aggravated felony. You may still be deportable but you may at least give him that back. Other deportable offenses 237A2 of the act have other portable offences. These are offences which your client may be deported and will face deportation consequences by the way, about 10 years ago when they were revising the immigration nationality act they changed it, stopped calling it deportation, they call it removal it’s kind of reviling plays on words but I still call it deportation. You remove teeth; you deport people and family, so I’m still going to call it deportation. Other deportable offenses, crimes involving moral turpitude, for a crime involving any kind of theft offense, anything involves fraud, shop lifting. Now there is a patty offense exception, one crime involving moral turpitude. The first offense within 5 years of residency is a deportable crime involving more truancy. The exception is; if it is a C misdemeanor and effect for a crime involving moral turpitude for one crime involving moral turpitude to be a deportable offense. It must carry potential sentence of 1 year or more, so that would make it ‘A’ or higher.

So your client gets arrested from shop lifting at the Wall Mart so B or C mist misdemeanor. So first offense no deportation consequences, it’s there by but that same goes back 6 months later, goes back to same Wall Mart tries to steal Tony Romo Jersey, a second mist miner or theft offense they are now deportable for having 2 crimes involves in moral turpitude. So a crime involving moral turpitude, one crime involving moral turpitude is deportable if it occurs within 5 years of the person getting the residency and he carries the potential sentence of one year or more. Simple assault is not a crime involving moral turpitude. Two guys fighting in a bar; hey you saw looking at my girlfriend, I saw your girlfriend I would look at her and they get into fight, fist fight.

Simple assault not a crime involving moral turpitude. Now half way into the fight they got break some bear bottle puts it in other guy’s throat, now its aggravated assault maybe its assault because of deadly weapon. Now at the very least you have a crime involving moral turpitude. If the judge gives him jail sentence of one year or more or two years TDC suspended for two year probation, now you have an aggravated felony. But if you can keep it simple assault your client has no immigration consequences it was a simple assault is not a crime involving moral turpitude.

Multiple crimes involve more turpitude. You got arrested 2 years ago for trying to steal Tony Romo jersey at Wall Mart. See misty miner, patty offense no problem. You go back two years later you try to steal a CD from same Wall Mart. Now you got two crimes involve in Moral Turpitude, now you are deportable. Weapon offenses, unlawful carrying of a weapon, that is deportable offense on its own even in Texas. I know you can come back with defenses and it’s a common problem. These and domestic violence offense the two most commons one when it comes back and snake bites you and here is why. You know the guy gets taken and he gets pulled over for ticket for speeding there’s a gun on passenger side seat he lives out in west Texas side, he needs the gun to keep the predators from eating his deer, from attacking his cow. He goes in, sees the magistrate judge AP says,” Jorge, what are you doing with the gun?” and Jorge says,” We’re in Texas judge” and the Judge says; “you’re right but here’s the deal, I’m going to give you 6 months suspended takes these guns safety classes you’re good”. He takes it now he is deportable for confronting unlawful carrying of a weapon. Same thing with domestic violence; assault with the finally domestic violence, violation of protected order, these are also other deportable offenses.

Domestic violence situation! The neighbor calls it, hears two people arguing. He says, she says, the police show up and says,” what’s going on” and she says “he is no good selling self” and he slips and cops ask the guy, “what’s going on?” “Well she just don’t listen” so he takes the no good so and so. Takes him in jail, sees the magistrate. Magistrate says,” alright here’s the deal; I’m going to give you time served, I’m going to give you this 3 months’ probation, I’m going to give you this anger management classes and probation classes”. He takes the deal now he is deportable for domestic violence.

Drug offenses, drug possession offenses with the exception of one time possession of 30 grams of marijuana are a deportable offense. Now let me begin first for 30 grams or less marijuana exception. Most of the time when you all have clients they are arrested for possession of marijuana. The only thing you have is an arrest report saying “pulled over and found a baggie containing two white 5 marijuana cigarettes” because they don’t know what the word ‘joints’ are, but they put 5 marijuana cigarettes now that does not tell you the way to 5 marijuana cigarettes and if your client pleads to that he has no way of proving that those 5 marijuana cigarettes were under 30 grams and burden of proof is going to be with him when he is in front of immigration judge.
So please it is critical when you are dealing with the possession of marijuana offense for an immigration stamp point to get lab report reflecting that the amount of marijuana found in that bag, were in his possession is under 30 grams or less. Cases have been won or lost on that. Number 2, in dealing with drug offenses, it is really critical to know your clients immigration status, and here is why.

If you have your green card and you are convicted of one of these possessions offenses, just possession, a possession within ten which is aggravated felony but possession and you had your green card you may be eligible for the waiver to go back to Judge. Yea but Judge I’ve been here for 10 years my wife, my kids give me a second chance but if your client is in line to get his residency. He has got that letter from immigration show he has got an approved petition to his wife or his dad or his brother or his son or daughter. The only way he can get his residency for drug conviction is possession of 30 grams or less of marijuana. So if your client is in line to get his residency through his and he is charged with possession of control substance, cocaine or meth or any other of those things or possession of marijuana, if he pleads guilty to that offense or any of those drug conviction offenses. Besides possession of marijuana he will never be able to get his residency through his wife, his mom or dad, his children. He will be a permanent bar from coming in to United States. So if he got a possession of a control substance besides marijuana he need to try find some kind of creative plea if you want to give your client the opportunity to get his residency. The flip side of its if its possession of marijuana and it’s under 30 grams and he is trying to get his papers same thing. Get the lab report reflecting that it was under 30 grams of marijuana. That way continue with the process through his wife.

Possible defenses! Negotiating sentence to avoid, this is my favorite line. Justice Steven wrote this and now Padilla V. Kentucky “counsel who possessed the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor to craft a conviction and sentence that reduces the likelihood of deportation,” Here is what that means; your client gets arrested for assault domestic violence. The prosecutor…he has no priors. The prosecutor offers you 2 for 2. Two years suspended for two years TDC suspended for two-year probation because it’s not his first defense. If you take plea what happens, your client is subject to automatic deportation as an aggravated felony because it’s a crime of violence and you got a jail sentence of one year or more imposed.

Now, if you get it reduced deferred to adjudication for assault domestic violence, what happened? He is still deportable under 237, because domestic violence is of the reportable offenses. Now he gets in it bad. But what if it is a weak case, the wife wants to drop the charges the prosecutor doesn’t have much and it willing to reduce it to interfering with 911 call, interfering with a 911 call is not a deportable offense, it is not a crime involving moral turpitude and it is not in other deportable offenses. So if you get reduced to that your client has no deportation consequences on that. Another example your client get arrested for burglary rehabilitation, he has had his green card for 10 years and he has no priors. If the prosecutor gives you three for three and you take that what happened; it’s an aggravated felony. It’s a theft defense you got to jail sentence of over one year imposed so you are subject to automatic deportation. But if you take the deferred you offer,” hey instead of three for three how about if I give you five years deferred you get two extra years in system for him. If you get five years deferred what happens? Burglary retaliation is a crime involving moral turpitude; it does carry a potential sentence of over 1 year. But it’s his first defense and he has had his green card for over 5 years. And for one crime and the first time crime involving, moral turpitude to be a deportable offense, it must have occurred within 5 years of his residency. So if you got a guy who has had his green card for 7 years and no priors and you can work with that in the pretrial stage you can avoid all deportation consequences by virtue of deferred adjudication and by knowing the statue on that.

Possible Defenses; Cancellation of Removal for Permanent Residents! This is for persons who have the residency, who have their green card and have not been convicted of on aggravated felony. They have been convicted of unlawful carrying of weapon, the domestic violence, may be multiple crimes involving moral turpitude may be for couple, for possession of controlled substance. To be eligible for cancellation, you must have had 5 years with the residency and a total of 7 years with legal status now to make that easier, if he has got 7 years there is a green card he has got 7 years of legal status. Some people may be on student visa or something beforehand but if he has got 7 years with his green card and he does not have an aggravated felony then he is going to be out for cancellation removal. Now to know, before the commission of a removable offense, that is why it is important to know if your client has any priors. Because if your client has his green card for 15 years, but 10 years ago he was convicted of unlawful carrying of weapon or possession of cocaine, the clock stopped at that time, so your client will not have the 7 years he needs to be eligible for cancellation or removal. The deportable offense stops the clock for that period so that is why it is important when you are dealing with permanent resident to find how long he has had his green card and if he has any priors; Because those two things will tell you if he is going to be eligible for this defense of cancellation or removal. And if he is then go before the immigration judge at that point you will say “Judge, I’ve my wife my kids I’ve been doing probation, I’ve done everything I need to pay my taxes give me the second chance”. But those are the three things you need to determine beforehand.

Withdrawing the Plea, ineffective assistance counsel of Padilla v. Kentucky. Now we know Padilla v. Kentucky is not retractors. SC came back and says it’s not rhetorically applicable. That does not mean you still can’t go back and do something to withdraw the plea or to retailor the plea. It’s been my experience in Dallas at least that more times than not, I if the prosecutor and the defense attorney can get on board on a guy who obviously there is going to be an injustice. This guy plead guilty, he got 5 for 5 for unlawful carrying for burglary rehabilitation. He got the fiver for five; he is completing the probation fine. Immigration comes in and arrest him,” Hey this is an aggravated felony we didn’t catch you till now. Now you are subject to automatic deportation” and he is in this system for 3 years doing everything which he needs do with this probation. You can go back, we can try it and say we know it’s not rhetorically applicable so you can argue Padilla because its occurred before Padilla but as an equity argument, if the defense attorney can convince the prosecutor,” here is the deal man the guy is doing everything you asked him to do, he has no priors, he is being everything alright and now immigration is going to deport him because of his aggravated felony”. Can you cut a deal with work on this to go from five to five to six years deferred or sever years deferred? And if the prosecutor will agree and the judge will agree and like I say; at least in Dallas county the judges will say “hey I don’t a dog in this hunt, if prosecutor agrees we’ll sign off on this” then it becomes more of a lobbying effort unless of a legal argument. But my point is; even if the offense occurred before Padilla v. Kentucky, there are still ways you can go back and try to retailor the plea withdrawing it and enter into a lesser included offense or turn it into a deferred that will give your client the relief from deportation.

Be careful what you wish for that’s the other part of withdrawing the plea. If you are successful in withdrawing the plea and you still don’t have the deal cut the prosecutor may go back and prosecute the client again. And you need to be care… I had a case just like this in [inaudible] couple of years ago where the defense attorney contacted me on the person accused of indecency with a child which is an aggravated felony; it’s a sex offense, involving a minor. We got the deal reduce to injury to a child, which is another deportable offense because it’s a crime involving moral turpitude but there is a waiver available. I chanced it, “yeah judge gives me a second chance and all this”. Well he takes that deal; immigration comes in and arrest the guy. Put him in deportation proceedings. He decides,” no I don’t want to go through with this” so he hires another defense attorney to withdraw the plea. Well, be careful what you wish for, prosecutor says “Ok, we’ll let you withdraw the plea he didn’t have the deal cut. They withdrew the plea, they found him guilty indecency with the child against 3 years TDC and now he is going to get deported. So be careful what you wish for. You can’t withdraw the plea but it’s do that in a situation where you already have the deal cut.

Derivative Citizenship, as I mentioned earlier in some situations your client may already be a United States citizen if he was under 18 and a lawful permanent resident on Oct 2000 and one of his parents became a United States citizen by birth or by naturalization. Now that is still applies to days so, how many of you have juvenile cases? Right, ok here is the situation why is this important? Let’s say you have a 16 years old sophomore in high school and for his junior achievement project he buys a $100 worth of a commodity. Repackages that commodity into 10 equally size sandwich baggies ad he then sells for $20 per piece in school. Occurring 100% return on his investment. But instead of being applauded for his entrepreneur skills he is charged with a possession intended to deliver. And because he did in the school zone the prosecutor is in no mood to make the deal. Now you know that that is an aggravated felony, possession intend to deliver an aggravated felony, there is no exceptions for juveniles on this. So what can you do? If you can get, first of all you have to find out if his mom or dad are United States citizens. If his mom or his dad naturalized then your client is United States citizen, no immigration consequences. If mom or dad are not United States citizens but they are eligible to naturalize because they have 5 years with their green card.

If you can get to prosecutor to hold off on this for about 6 months. From the time indictment comes down from time get his charge in to tell the conviction. In during that time yet mom and dad file for naturalization and process the waiting time right now is about 6 months from the time you filed your citizenship application to you go to interview, pass the exam and gets one sin is about 4 to 6 months. If you can get the prosecutor hold off for the 4 to 6 months you can get mom or dad naturalized. Your client has won automatically acquired United States citizenship as a matter of law, not because he earned it, not because he deserves it, but because mom and dad did it for him and it’s kind of metaphor for this generation.

So if you have a situation like that where you have a juvenile who is facing an aggravated felony conviction, subject to automatic deportation see if mom or dad have naturalized, if they haven’t see if you can get mom or dad to naturalize while you keep the case pending.

Dealing with Immigration Holds, you get the 2AM jail call,” They have got my husband”, and you say,” what happened” and she say,” well he was driving down the road. He was swerving back and forth and police thought he was drunk and they pull them over but he was drunk, he’d only had five or six beers”. And you go, “is that it” And she goes,” yes! Well accept that after they pulled him over, they were flashing the flash light in the car and on the passenger side seat they found a loaded gun, but it wasn’t his!” and you go,” is that it?” And she goes,” yes, well accept that after police were patting him down they found this little plastic bag in his pocket, containing this white power what’s that called?” I say “cocaine?” she goes, “yes that’s it. You heard of it?” So you get down to the jail and you find your client got all these three charges and you are ready to bond him out but he has got an ICE hold. He’s got an immigration detainer; here is what you need to know about that; first of all, in immigration hold is based on your client’s immigration status. It is not based on depending criminal charges. If your client has an immigration hold either because he is here illegally and that letter show he is in line doesn’t help but he is here illegally or he is here illegally he got his green card but he has been previously convicted to one of these offenses we talked about that makes him deportable. Immigration just didn’t catch him sooner.

Number 2, just because he has immigration hold does not mean he will be deported and it is very difficult sometime for judges to understand and bond company. Judges are hesitant to give people with immigration hold bonds. Bond companies are hesitant to give bonds to people with immigration only. Let’s just be aware that is not mean that your client will be subject to deportation. In fact, in lot of situations your client may be eligible for bond, he may be eligible for a lien but he will not be set back from one day to the next. Secure an immigration law with ICE or immigration judge. An immigration hold is like a lien in a sense that immigration just puts the hold and says,” we will talk to him after you finish but they will not go in to the case, they will not take custody of your client until the charges have been dropped, the bond has been paid or time served “Now that gives you as a defense attoney an opporunity to sit back and talk to the family, get a defense attorney, an immigration attorney on board and try to figure out how you are going to medicate this or offset it when he winds up going to immigration. In most cases if your client has never been deported before and not been convicted, even if he is here illigally he will be eligible for the immigration bond.

And I mentioned that to say this; in a lot of cases defense attorney’s reaction will be; ok he’s got an immigration hold lets plead him out tthrough this get in to immigration we will do it from there. No, what you want to do is the reverse, after you talk to immigration attorney and you figure out there is something that can be done, if your client has no previous convictions, go ahead and bond him out on the criminal case. Get him in to immigration custody and then try to get him bond it out by immigraton that have two opportunies in immigraton bond: Once with the ice agent when they take custody. If he doesn’t want to give him a bond, the second time will be the second decsion will be made by ammigration judge. And even if your client does not have legal status, as long he doesn’t have any prior convictions he will be eligible for a bond. And I mention this because yesterday morning before I flew out here,
I had a cliet no a United States citizen, no status. His girlfriend/common law wife with United States citizen but they haven’t done any thing to start the process. He had an old DWI but he was arrested for shootig off the gun in the backyard of his house in Graland Texas, after drinking fiver or six beers with his child in backyard with him. The charges were dropped and he was placed in the ICE hold.

when we were going through the facts of the case and the judge’s listen to all facts to judge. Number 1, he wasn’t convicted and the charges were dropped and Garland is a very conservative, that’s my word of polite very conservative area. And if the Garland Police Dept and if the prosecutor in Garland and the judge is in Garland heard the fact that I’ve to drop the charges on my got case well your owner I mean there is something said for that. He gave him extersion after what happened. Well when all said and done because the only thing he has prior DWI I mean he didn’t have any papers we got him released on a 5000 bond. Now if it had been reversed, if the charges haven’t been dropped and his attorney had plead him to unlawful carrying of a weapon or discharge of firearm or something like that and then I get him in to immigration he will not be eligible for bond because there is something called mandotary detention on the immigraton law that prohibits person to have certain criminal offenses from being eligible for immigration bond. So the best strategy when dealing with someone who has an immigration hold and no prior convictions is: find out if he has any priors, get the immigration attoney on board, bond him out, get him to immigration to and then bond him out and atleast you have a client who is free and has a lot better chance in negotiating you can work with the prosecutor like even the guy who sits in yell,” Hey get me out of here I don’t care what I’ve to do, just get me out of here.” Expediatery removal that basically means that your client has been previously deported. He got 3 years of go, he got picked up and deported. He came back again 2nd time and your client when you gets back to immigration will be subject to deportation again. Now there are situations where you want your client, subject to expeditery removal.

If your client is facing serious TDC time. Because of the offense he was charged with and it look likes here is the rock here is the hard place, there is no room to menovor but he has subject to already to deportation because he got deported 3 years ago and came back illigaly. Well if you can get him back to ICE custody, bond him out or whatever. ICE in some cases maybe just go ahead and deport him. They don’t care about what he has got pending with the governemt, with the state, that’s not there deal. He is there only just try to deport him and in fact he got hired on a drug case where my client was facing serious TDC time and then they hired us just to do the deportation part of it nothing else. And try to get him deported back to so he wouldn’t do the TDC time.

Well you all, that was kind of a blitz through but it is the morning I am sure if you all have a second cup of coffee and listen to me talking by immigration for another 45 minutes. I have this afternoon at 1 o clock a more extended session, we all can bring your not so hypothetical questions. I will also talk more linked about dealing the immigration holds and with some of the other issues that I really just brushed over. There is one other thing I want to mention that is crimes of voilence and you have a section this afternoon I believe on fifth circuit cases. Crimes of voilence, from an immigration stand point are the lines in the sand that keep shifting. About 10 to 12 years ago the fifth circuit ruled that a felony DWI conviction is a crime of voilence. And for about 3 years, thousands of people were deprorted for aggrevation. And remember a crime of voilence only becomes an aggravated felony if you get a jail sentence of 1 year or more imposed. But we had hundreds may be thousands of people who had taken 3 for 3, 5 for 5’s on a felony DWI or something in subject to automatic deportation. Two years ago the fifth circuit came out with another decision I’m going to talk about more in the next class; A person convicted of evading or fleeing arrest with a vehicle, not on foot but with a vehicle has committed a crime of voilence. So if your guy takes off in the car and if police pulled him over and he is charged with evading arrest and he took off in a car under the 5th circuit definition that will now be considered a crime of voilence and if you get a 3 for 3 or 5 for 5 he will subject to automatic deportation. Its difficult, the law’s changed you know that we know all we can do is best admonished our client based on him light handed just because to be aware. The crime of voilence and the 5th circuit has repeatedly changed the definiton and expanded the definition of crimes of voilence to include a lot of offenses that at first glance would not appear to be a crime of voilence. Alright! Thank you very much.

Warrantless Searches/4th Amendment

Mr Otis represented serveral merchantse in court and a young man was sitting in the audience and say listen to him speak for 4 hours about how horrible abstrusive and antithetical to any notion of free civilised people will cherish the celebrity this was. That’s James tombstone, it’s a huge block of granite about I’d say 3 and a half feet wide, two and a half feet tall with a big brass plate on it that says who he was and even its suffers with litle bit of erosion but slowly. His speeches were called ‘the spark of the American revolution’. You’d read about that in 1950 descent by justice Frankfurter that later become the law in Chimel v. California against to point to opening here is the 4th ammendment matters. When you hear about it, roll your eyes back and head and goe,” yeah there’s nothing we can really do and I don’t have the judge with brains or backbone after grand emotion even if it’s on the law or they just going to believe the police office everytime why bother?” You need to bother! Even if it’s a class B or class C bother with it because if you don’t preserve it you don’t protect it it will disappear. See if this language sounds like somethig you might hear not on fox news; there have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantess and give the police the upper hand.

That hydraulic presure ha probably never been great then it is today. That could have been out i imagine any district court jduge with a DA going,” judge if you grant this supression motion and let this drug dealer off your liberal you’re weak. We will run against you, we’ll beat you up”. That’s pressure, the highcourt, the court of criminal appeals or fifth circuit,” you really want to get that nomination of the higher court. Don’t you rule against the police give them the upper hand they are stopping the bad guys right”. Can you hear me now Mr Obama can you hear me now? You know its just give him the upper hand we need the tools tursted. We’re the governemt! Now that was in 1968 hell I was 2. Terry V. Ohio, I think Terry v. Ohio was connected to Marilyn v. King and that you talk some otherwise smart people in it what seems to be a very limited fact bound Okay, I see that decision that comes back later and didn’t bite you in the butt it will bite you at base of your neck. It can be a real bad thing. Persistant pressure of any form gets this Erosion. Things disappers on you, the more you let go the more you lose. We know that if you get older, eat a little more, excercies little less what you thought was a shape beceomes a new shape Erodes in inverse direction. People say and they say to you as cirmial defense lawyer how can you represent somebody who is guilty? You say pretty damn well and not cheaply.

David: they say how do you, I mean gosh they’re guilty and you hear that, remember the expression, motion no descent 1993 had been real busy and find me some cases in El Paso court and some from the court of criminal law appeals and by gully I looked out I was right. They’d illegally seize this evidence and it was the drug case. And so if the drugs are out they got no case. And the assitance DA’s response when judge Mccore says,” well Sir what do you say about these cases?” and he says “I was ready for something lucky here in Mccore law school”. “Well your honor those are distinguishel because of salient facts if you look at foot on note 4…” I was looking for one of those answers. Instead what I heard was,” judge this was cracked cocain”

David: What do you mean? You know its little bit of marijuana, hole lot of child pornography doesn’t matter what it is remove that from logically equation and asks how did the police get to be where they were and seize the item they did. it really desn’t matter what they hell it is. But they did that in map, the criminal must go free if he must but it’s the law that sets him free. Nothing can destroy a government more quickly then its failer to observe its own laws or worse disregard of the character of its own existance. We operate under rule of law liberity is inherit in character to disregard those things for even seemingly good reasons at the moment, never really is!

Looking at what the Supreme Court and other courts have done we see a preference. Other then Marilyn v. King if you gotta a warrant and you’re the police in better shape far and away. Where we in criminal defense bar can seize the most fruit in a warrantless situation. That’s where they gotta scramble a little bit, make it up as they go. The court give greater protection at least this term to the body and home except for poking at your mouth. Now if you want to put nail in your arm then that’s a whole different bail away but apparantly the suave in the mouth is not so big a deal.
Florida v. Jardines came out this spring take a loot at that. Its significant not because I mean I don’t know about you all I like in town called Adloo that don’t even have drug dog in Luback they have few. I didn’t think this was that bigger case until I read it and thought about it while. Its in Miami they hear the Mr. Hardines might be pervior of a currently illegal agricultural comodity its kinda green and leafy and you can put it in the store room in the bag and they go watch his place and they see a little eye traffic. So they just take Fido the Big Belgian [inaudible] that was is 95 pounds and get it up on his porch. Back and forth back and forth yeah we got a hit. And they backout and they got a search warrant. And I think wel,” hell I will realise this just like a car on the side of the road. Dog’s deaf not a search, its passed that the dog’s credible and reliable. We got that from Florida v. Herra she can’t even markup that tree, yeah I intended a pun. And they went back and got a warrant which is preferred Mr Hardines about to have a nice little

David: Probably desiring not to return, here’s what significant about Florida v. hardine. We have a spilit opinon and you got interesting bed fellow so do Mccor is in majority on it and Scalia writes the big part of the opinion and he hauls often says, he says,” look I do it on straight property right. You bring a dog on my porch. I am calling the police, that’s tresspass that’s common law of tresspass. There is a real good concurring opinon that says look property asides I do this on priviacy and the decent came back and said no no no look there is a liscense of the public, The Avon lady, the boys Scouts, the girls Scout, It is not offense to people to have someone come and just knock on your doors. Scalia says,” yea but you brought that big damn dog. And he was going back and forth” can you imagine people you know layn’ there watching the rangers got your boxers and a t shirt on. Wifes on cellphone, kids are playing on floor. That’s song kind of like that lazy inaudible used to be on heehaw when they’re haivng the routine. All of suddent they hear this big dog barking and the door shaking. No body moves whats that! Ah, just police helping catching smell of that one hitter you had last night. “Ahh” “Don’t worry about it not big thing”.

No it would shock to snore out of you. Here is whats significant about Florida v. Jardines. Marina v. cats, you know forever we fought this fourth ammendments was grounded in property and then Kathes came in and says no it’s a reasonable expection of privacy. You don’t have to own the place which will be property no just an expectation of privacy. You maybe a guest in a home of a friend, it might be the area immediately around you and a car but you do a privacy expections so everthing was reasonably expectation of privacy. Floria v. Jardines says; no, you put them together its privacy plus property so it expands our 4th ammendement protection at least electionally or expedentially it was kind of like a sign. Hey folks don’t forget this. Florida v. Jardines matters. This going to matter a other cases later. Missori v. McNeely, Mr McNeely was driving along mind his onw business got pulled over for speeding and then lock the check list every report in your office to take this strong alcoholic beaverage, had red blood shot eyes. [inaudible] a car where he stumble when he did. Wanted an extend search took him immediately to hospital. He didn’t want to get blood or she didn’t want to get blood so told them to put the needle in and she did them in to nail and they did. Justice Thomas is this sole descense at the other end that takes the governemt position which was at the disappearence of blood within the body.

Always constitutes an emergency exception to do away with the warrant requirement. And factors leading up to the stop or always going to be your problem that will cause because its alcohol we’re concerned to about what we’re told about. Mattabelisation and the simulation and elimination in the human body its always an emergency exception. That’s what Thomas said and that ain’t the law, that’s what Missouri wanted it to be. The rest of the descendent Robertson there kind of through almost reasonable purposal out and they said well look don’t go to this case by case basis but lets kind of break traditional 4th ammendment thinking here and have a little more bright line rule that just do traditional emergency exception analysis and say look its time to get a warrant. And if there is time to get a warrant you got a go get one and if there is not time to get warrant and you can provev that well well let it slide. And you could see that being workable and find it out but here they came out and said you gotta wash because people read this case wrong. It doesn’t mean per say that all warrant less blood draws mean admissible evidence. You do get to know the notion that if you have a warrant on a blood draw the state say in a whole lot better shap assuming the warrant is sufficient. They say its still going to be totallity of the circumstances case by case basis. So what a prosecutor is kind of try to do if they were card in a woodchair is get in there and really add some stuff that cop didn’t put the police report.

That’s going to say pushing it towards an emergency that in this case they needed to. But in Missouri v. McNeely they said no that dissipation of blood does not automatically create emergency. They didn’t preclude the possibility that it could happened in the future but they said it might. So there is still going to plenty of litigation here but Missouri v. McNeely does give the defense significantly and upper hand here espacially when you look at how many judges are available. I don’t care if you are here in Wood County, Upton County or Young County or a Up pass where one of those county in which there is 2000 people in it. You know every trooper must have a sheriff a cell phone, they’ve got a computer. You can rattle a judge out of bed and do regularly because I know some of them told me about it. Judge want some coffee this morning make it two. They called me a one in the morning for a search warrant. It happeneds so when you get a warrant though how do you start evaluating it. Well ask yourself, what are they searching for and where? When did who say it was there and why? We come back to confidential sources. I remember being in law school and learn about inaudible aguilar spinelli and having to do this dance of really proving up which you had to do and the search warrant when you were talking about a confidential source. And then they came out with a case and said,” well no its gates” [inaudible] and it’s a totality of the circumstances and the message got out wrong in the legal community. It happeneds a lot, like McNeely doesn’t stand for rule that; all warrantless blood draws are inadmissible but people don’t say that just like they are going to say on Marilyn v. King,” Ok, swab inside the mouth is not a search we can do it to whoever we want whenever we want. You know we are about to get a drivers license or there are a lot of places that could get real slippery with and go down on hill in a hurry. But within formats all those aguilar spinelli rules still apply, they just fit within the broader totality of the circumstances approach. Some cases did help you with it has got a of teaching and talking about everything, let me give you best two I can think of. You don’t need to know 30 cases on it. If you are making notes learn these two; The Huddleston case actually I think with all due respect Judge Cockern who is a real…

Informants, tips and cooperating witnesses child pornography community care taking

By | Criminal, Criminal, Immigration

A smart cookie and a good rider. She wrote the Duarte opinion. Reed Huddleston from Texarkana, “I live in West Texas, my wife’s from Mahaya, he spell out with an “x” and while I’ve used to give these talks 8-10 years ago,” I “tee he” about you know some opinion from the Texarkana Court Of Appeals where last week they got their first full set of teeth. you know Tee he and haw haw like that. Not anymore! I’ve been paying trench to Texarkana court, those folks can ride and when it comes to search and seizure issues, they’re pretty stout and they write it in a way that even a person like me with a low IQ can read it. Huddleston is a really good case; I’d like you to take a look at. And it’s the, the really good language, let me get my glasses. That really explains all this, starts at the bottom of the page 4, of the actual opinion and that would be probably page 36 in the text, 38, page 37 and 38 are the actual case, you want to look at it.

They had a search warrant, it’s basically is an informant who calls and says there’s going to be such and such at this place in their in trouble with the law and all the little things that need explaining about why this person is credible or reliable are not there. What’s more important is that there’s no independent corroboration of those details which is real important which is what Judge Cochran talks about in Duarte, think Duarte is out of here in San Antonio and basically they had a person who is in a bind and its boiler palate, the defense lawyer on this was shot and apparently he’s part of this San Antonio criminal defense lawyer association and people talk to each other because when they read the affidavit, they realized “This is the same boner plate out of the Porto case, a few years ago except for few small changes ”. They don’t have any independent corroboration and Judge Cochran does a real good job of taking also what’s in Huddleston a year later but echoing it here.

When you’re dealing for the first tile informant or any kind of confidential informant, you’ve still got a really demonstrate in non-conclusionary language why that person is credible reliable what you’re going to find where and to corroborate it. Those two cases will teach you what you need to know and direct you where you got to guide you in evaluating those kinds of warrants. What’s a conclusionary statement, well a statement that draws a conclusion but done provide the supporting facts. So and so is credible and reliable, that’s a conclusion when they say, “he has worked with me on 4 or 5 prior occasions and provided information that led to arrest and seizure of cocaine, that is factual. It kind of like when I was assistant DA, what’s this credible and reliable? What’s the damn difference? And my boss Dan Bower put down his vantage cigarette, looked over his glasses “Well! David you know and I leave the name of the preacher’s wife out” and said “You know so and so?” Yes sir! She is a nice woman! A good lady, no doubt she would tell us the truth all day long, but she wouldn’t know what a marijuana cigarette smelt like ever in her life.

Okay! The flip side, and he pulled up the case of some meth addict which in 1989 Johnson County was the freaking capital of triple neck flask meth addicts from there to Chico to Jacks borrow and anybody’s been in Fort Worth or Johnson County knows that time it has more than the nation share of good old fashioned speed freaking white trash. [Audience laughs] That person is reliable, they know what meth looks like, smells like and you can drop them off in a new town with no money in then in 24 hours, boy they’ll find some better than a German Shepard dog [Audience laughs] and get a load of it for free without trading sexual favors, it’s incredible! Well they know what they’re talking about, they’ll just life their heart’s beating and the days ends in waah! Especially if they’re in trouble or Jimmy Jail Bob, he can get out of jail because I love him! That sort of thing.

So credible and reliable, just because they’re an honest person doesn’t mean what the hell they’re talking about especially in the drug business because this is what never talked about doesn’t mean they’re going to tell you the truth! Barraza and Lowery are the two simple cases to use when you’re trying to educate a Judge or educate yourself on what conclusionary statements are. They have superb examples in them, I don’t want to read the whole search warrant to you here today because you can read yourself but those are good cases. The Corpus Christy court does a very good job of segregating out in Barraza.
Timely executed, I remember doing intake in the DA’s office; we get a case on the search warrant… “Boss I don’t really understand”, first thing to do, see when it was issued, see when was it executed. Was it signed? The best case on this just simplistic, connect the dots work is out of my home court, the 7th court in Amarillo, it’s Rico 241 South West 3rd 648, the warrant got signed at 2:10 pm on August 19th. It was executed on August 24th at 9:10 and you know the Rule under 1806 and 1807 code says 3 days not excluding the date of issuance and date of execution.

Man, why you put those exclusions in there, why don’t you just say…3 days after it signed or 4, let us go well the question was kind of like a Bill Clinton what it is, what’s a day? Well the state was arguing and was any 24 hour period. Well! Rico tells you is no, once you cross midnight, that’s it. So if you get your warrant at 11:35 pm, your day starts at midnight not 24 hours after that but anytime you want to count, when was my warrant executed, when was it issued? Pull out Rico, it’s like 7 page opinion, it outlines in very simple terms, how to figure out if a warrant is timely issued which is different than staleness, Staleness goes to the probable cause concept of how old is the information trying to seek what you want to obtain in the search warrant, think about it like this, if its, we’re talking about Staleness, if someone so says I’ve seen drugs in this house within last 36, 76, 24 hours, well you know they need to get their warrant and go look and that’s alright but if someone says you know I was hanging out with that guy in college and he had 3 water bongs on the coffee table and a half a kilo of hydroponic and bunch of people hanging out and that was 6 months ago. Dude that week’s gone! Now if we’re talking about stolen art or a bloody knife that’s a murder weapon; that maybe out in the barn. Well! Then it’s probably not Stale information because that’s the kind of thing that might still be there.

Warrant by standards, these are cases where you walk in and your client’s caught with a gun or drugs typically and at first blush, you’d need to talk to the assistant DA, we will offer your guy 10, look you’re screwed, it’s a warrant they found it on him. You’re like “well crap!” Warrants are preferred; well wait a minute! My guy wasn’t named in the warrant, sometimes people at wrong place in wrong time. Here’s one from the Supreme Court, I don’t have the site there but I can read it to you because I got it, 133 Supreme Court 1031, 133 Supreme Court 1031, Mr. Bailey was at an apartment that the police had under surveillance that they thought was a hub of drug activity and they were right and right before while they’re waiting on the warrant to get there with the raid team, Mr. Bailey and another fellow get in the car and they drive off. And it’s an urbanity I think in DC and they go like 5 minutes down the road which apparently takes them a mile, that’s a mile 5 minute’s a mile, that would never happen in Lubbock may be like 5 miles. But they follow these guys and they go to another apartment, go in that apartment and when they’re coming out the police.[Click Click] Freeze! Welcome to the one eyed mustard, this is Mile 40 Smith Weston Pistol, you need to get on the ground, I’m going through your pockets, going through all your stuff and they take them back to the apartment. It was in the US Supreme court? No! That Michigan’s Somers versus rules that allows the police to briefly detain people who are not named but present on a premises where a warrant’s been executed coming back from a Abar v. Illinois. It’s got to be that immediate residence or scene, it can’t be a mile away or you followed them from there and you see a lot of those cases, people pulling out of the place, they’re getting ready to run a warrant, they hit them all.

If you read Lippert and Brooks, Brooks is an unreported case, it’s not authority but it does a real good job of teaching the concept here, Lippert does as well. What happens in Lippert is the police have got a valid search warrant, they’re running away looking for I think meth! 15-20 minutes after the raid team has had the adrenaline rush, kicked all the doors outta the door jams. There’ no wood in the door jam, everything’s caved in, children are crying, this cop standing there in room and he turns looks over shoulder and Jesus! There’s Mr. Lippert and this woman standing in the door way going’ “what’s going on? [Laughing] Yes! I’m in the position. It’s what it said in record, I don’t think it’s his actual words, it was something like freeze mother and 11 letter word describing a procreation of all mammals. [Audience laughing] they got on the floor and here’s the deal, you can detain them and they might be able to conduct a brief pat down if they trigger the [Abar versus Illinois] you can articulate some reason you think they’re armed and dangerous, there still has to be reason to path them down or frisk them, it is what we do for an officer’s safety. Yes! That’s the goal but what was the basis, they’re different things. Lippert and Brooks help you deal with that situation where you have someone who is either going by to drop off their laundry or hurt—a guy had a fresh load open in town and is coming to score, that’s when you get the forfeiter case because they’ve ceased the $500,000 off of him. But that’s people heard just at the wrong place at wrong time.

Warrant Bystanders; Anonymous tips, whether it’s for a warrant, it usually didn’t get them anywhere and for stop it done here two real good cases that’ll teach you that. Florida versus J. L, a dispatch got a call that on a street corner, there would be three African American males, one would be in a check jacket and he’s got a gun. Of course the word jacket in Florida really don’t go well together because they don’t have winter there and so this female officer goes out there and she sees [low and behold], three youths on the corner and they’re standing around and one on low on behold has a red black plat jacket just like the color say it. It’s a prophecy from the Lord. “You! Come here,” pats him down and he’s carrying a pistol. Went all the way to the United States Supreme Court and they said “No! That doesn’t amount to reasonable suspicion to detain him” so well wait, wait, wait, it was an accurate predictor of future information. The color said that at 3.10 in the—and I’ll make it that part up but at specific time, this guy would be there with others wearing this colored jacket so, yeah that’s not indicative of criminal behavior, that’s I could follow any district or county Judge around town. Okay there’s a blond lady with a lavender dress on in a blue Lexus, she’s got a cigarette, she’s wearing gold drop earing, she has crème colored 3 inch heels, for lunch today she’s going to go to Georgia’s pizza and she’s going to have damn bag of weed in her purse. All I said was anything held out to public view that anyone could know and it’s not indicative of criminal behavior.

In Florida versus J.L they said that’s not it. The State versus Wilson’s kind of funny again it’s my favorite little Texarkana Court. A caller called in and said “There’s going to be running down over towards Greenville Highway 66, there’s going to be gold Chevy Blazer with two women in it and about 15 ounces of meth” of course you got to watch this, usually an ex-boyfriend calling in or in this case the jealous other girlfriend calling in the call, so really wouldn’t totally anonymous, they could tell by the twang in her voice and having listening to her holler 3-4 times a week exactly it was. But there’s the US Supreme Court and the Texarkana Court letting you walk through anonymous tips pretty well.

Automobile stops; the two bed rock cases you have to know or Delaware versus Prouse and Whren versus United States. Delaware versus Prouse tells you there are three reasons and three reasons only to stop an automobile, a traffic violation such as speeding and illegal turn, dangerous lane change and that sort of thing, under equipment violation you’ve a broken head light, your registration is out, your rear muffler is hanging out the back putting sparks down the road or probable cause to believe some other offenses occurred. Whren versus United States is the 1996 Supreme Court case that said “Yeah, profiling is okay, doesn’t matter about your subjective intensions if you’re doing narcotics induction or whatever, if you can find some reasonably objective basis for the stop, your subjective intensions don’t matter!” that’s what they said.

Let’s walk through some of those little bit, United States versus Miller is a Fifth Circuit case and it’s much of fun, it is out of Amarillo umbrella, I think Sam Ogin in the Federal defender’s office did this. This guy’s in a Winnebago on I-40 and have you’ve been followed somebody and got their blinker on? And so you back off a little bit, exit goes by, well maybe the next one and it screws you up for a while and why you like to hit your photon beam and blow them up. [Laughs] that’s not a traffic offense and he hadn’t put it on a special session for this year so for two more years, driving down the road like an idiot with your blinker on is not a Texas traffic offense. Well that’s what it happened here in Miller.

The officer follows him, he has his blinker on, he didn’t change lanes or turns, they pull him over, stopped the Winnebago, go fishing with Bill dance and find 300 pounds of marijuana in the car. So there in Federal court in front of Marley Roberts who’s not happy and US attorneys officer tries to say “Well good faith, he didn’t know that was in the law” [Audience laughs] they all think about that little bit, if that’s the good faith exception, I’m going to open up Dave’s speed reading peace officer certification school. You don’t have no shit, here’s a bad sign, go ride a head, you’ll win all your cases. Well! No Ouch that’s good faith, see you set it with straight face, look like a happy doll, you’ll be alright. Riding down road, got to be traffic offense, well low and behold, we’ve got it in here in Texas this year the Abney case.

Guy’s driving in the left lane, well that’s where I always drive, that what trying to catch up with Harley. My 12 year old car catch up with his six year old car, “hey barney put your wheel to the bottom kch kch kch kch”… that’s how you go 80 miles an hour, your get in left lane. Well you are not supposed to drive there unless you’re passing at that particular moment. And sometimes, they have sign saying “No driving in the left hand lane” which is like communist or something I don’t know but I saw you don’t run all over those idiots going 45 and 50 in the right hand lane.

Well! In the Abney case, it tried to say well he wouldn’t, he was staying in that lane, well there’s some cute fact finding in notation by the court that it was really really gentile, the way they wrote this opinion because they don’t use any adjectives but they noticed that the sign was saying you couldn’t do that, we’re like 30 miles back. That’s you know there’s a real…I think bench slap is the politically correct phrase to use when the court something like that to the state or more particularly the police.

Tail light out; get this, had to go all the way to the Fifth Circuit on it, another good case I think this was from San Antonio Judge Fridge Beurri I think was on it and got it right and Fill Lynch I think was the FPD on this. Mr. Lopez Valdez, Miss Lopez Valdez is on a highway on County Road coming up out of El-Indio, which we know is we’re not supposed to ever drive or because that could be from Mexico and she passes the officers, the border patrol guys and they see her notice much people in the car which of course you can’t carpool out El-Indio and so they turned around and follow her and they noticed that she kind of hit her brake light and shazam! In the vernacular, the tail light was broken, not legally broken but practically broken.
He could see that outta the red part of the light, some white came outta it. When they got her pulled over, there’s like a one inch rectangle cut out, like somebody taking a damn exacto-knife and cut out of the tail light upper was the red part was, so white light came out and red light came out so yes there was plastic and yes it had a crack or a break in it. But in 1986, the Texas court rules no no no as long as it’s emitting both red and white light, it is not a defective tail light.

Broken don’t mean you know “Well hell it’s little broke” so there’s hope for us all just because on the United States versus Whren, they site one of the millions of offenses in our traffic code, go ahead, get ready for your paper cuts. Look at that statute, see what it actually says, okay! If any traffic offense will do, it still has to actually be that offense and it took an industrious assistant Federal defender used to looking at guidelines and cross referencing money laundering statutes and complicated things like that to go pull out the God blame Texas traffic code and figure out what a broken tail light really was.

Arizona versus Gant; two years ago, really significant decision abrogates New York versus Belton, Belton was the case that was one of those that came out with… it seemed like good facts to help the officer was the guy with a revolver, he’s only like the… I think in Detroit, he’s got him pulled over no new york he like some turn pipe, he’s got 5-4 guys out of the car with his 6 shooter, his knees are knocking together Barney 5, he’s got them outta the car and so he searches the area with in their immediate areas so that he didn’t end up you know in the bottom of trash compactor and the court said well yeah [that] was okay, well all of the sudden you know it’s kind of like this Marilyn versus King, put the swab in your mouth deal, you could kind of see it. What di New York Belton become for us, they get you out of the car, they can toss the whole damn car, you’re screwed.

They can search everything everywhere you know even Mr. Gant, he got stopped for driving with his suspended driving license which in Arizona is civil not criminal which is amazing. He’s putting in back of the car, they then go to, they have got him handcuffed in the back of the car, locked in! plenty officers there and they just start searching through the car and they found cocaine and a gun in a pocket jacket in the back seat, charged him with the possession of drug, paraphernalia possession of control substance, they said “Hey this is search incident to arrest Belton should apply, even after the arrestee lost access to vehicle!” because that was the factual basis that they hung New York versus Belton on, well it was kind of what was called the “Grabbing area”. Well unless they thought this guy was Captain fantastic or stretch arms strong, has he going to get out of the cuffs of the locked patrol car, 30 feet up to his car to get the gun or the cocaine. And that’s what Supreme Court said, wait a minute there wouldn’t any reasonable possibility of Gant getting access to the car or reasonably there’s evidence relevant to the crime of arrest. Look! You had the computer saying his license was suspended, what do you think you’re going to find, note to self, Damn! Pay on license suspension, you know what were they looking for?

Community care taking; we hear that all the time, right in Corbin or good cases that teach you here, what are the factors that you look at? The nature of level of distress exhibited by the person you’re trying to take care of, where is this individual? Are they out on the highway at night, or they’re in the dangerous urban area, or they lost walking around in cotton fields screaming and holling people! That one’s close to home. Are they in a place, they’re going to need help or can they fall down and be just fine, or they someone else there who can help them, that’s the 3rd factor. Are they alone or they have access to others, to what extent does the person without assistance, are they a danger to themselves and others. Take a peek at the right case, and see if it did make you laugh, it’s up in George Town officer’s pulled over the side of the road and sees a car come blazing on through and hanging out the window or the passenger side is someone [sounds] where’s the Buick?, they’re puking out of the car, who community caretaking I got to help them Oh shit they got somebody driving, they are fine, they’re in no danger vomiting, let them go down the road. The court made them look at that twice, he said that was community caretaking.

Well! They were on a highway, car seemed to be running fine and somebody else was driving, you stopping them is not going to help them get there any quicker. [Audience laughs] Consent! This the what can wash away my sin case,
Chavez-Villarreal is a Fifth Circuit case, it sets up the basic analysis, was the consent freely and voluntarily given and is and independent act of free will and pretty much you look at those two things as long as there’s not any prior illegality with a detention or coercive questioning issue by the police, consent does pretty much solve a lot of problems for the State. You didn’t get confession, you dint get a consent, it’s a tough road for defense but if the detention was too long or the basis of the stop wasn’t good, you change the analysis to Brown versus Texas.

Exemplified in the Jones’s case, there’s a whole line of them going back to [dorch] from about 1998 out of the Fifth Circuit that outlined this marvelously the most recent cases [Masious] from 2011. You look at the voluntariness of custodial status. Hell man I wanted to leave, presence of coercive police procedures. Why is that they always say I asked him if he wouldn’t mind sitting on side of the curb, and you turn on the MVR, sit down right there! I don’t know, question was inquisitive in 3rd grade and [inaudible] C class for me. It had a question a mark at the end of it, not a snap finger and a point like my dad did. The extent level of defendant’s cooperation, did they have diarrhea of the mouth or they having to quiz this out of them.
Defendant’s awareness of the right to refuse consent; Maybe I haven’t paid attention, I’ve only been licensed since 89 but I’m never ever have them tell my client, you have right to refuse consent. And apparently that factor just didn’t dominate that much, it’s kind of on the checklist but it usually goes well for us but didn’t mean you’re going to win. Defendant’s education and intelligence; well a lot of my clients win on that one because they’re not intelligent, did you finish high school? What? “Yeah”, “no, 11th grade”, “did you finish or quit 11th grade?” “Man! I got to GED!” “What’s that?” “Man I don’t know [Audience laughs] you know what Ron said about GEDs if you don’t know what they are, it means you got one too. [Audience and speak laughs] they’re low on the educational level, pretty low on the intelligence level.

This one, D’s believe that no incriminating evidence would be found, “man I forgot about that shit! We were partying two months ago, that must have fallen out the back, I’d no idea that was still there. Or no man that why I was sweating bullets and had blood pressure like my Annie, I was about to die because they were about to find that load”. They then asked though, “do you look, If there’s priory agility and subsequent consent and a search, the temporal proximity of illegal conduct and consent” that just means how far apart is it in time.

The presence of intervening circumstances; well if it’s right there on the side of the road, they are probably not many. Now what could be summed that saved the day for the police, you take them to the station, put them back in the tank and then they knock on the door want to talk to you later, “hey! look man you don’t need to get my lady outta bed, let me tell you where that stuff is” or something to let there be a cooling off period for people to start thinking, people to be aware, how long is it and the purpose and flagrancy of misconduct by the police, they usually tell you, just they’ll be honest about it, what were you doing well I was looking for drugs or I was looking for something else.

Cell phone searches; folks this is where the future’s going to go, I put these four cases, because they’re the only four Texas one’s I could find. Finley is the Fifth Circuit case that is bad for us, it is a…I think Don flannelly covers it in his paper, Finley, I don’t think is going to hold up, I don’t it’ll work with the supreme court, I think if it went back on review, they might undo it, it was too early in the technology, you could tell enough 5th circuit Judges and their clerks didn’t have cell phones. You get this issue to I don’t care the most right wing, bunch of Fifth Circuit law clerk’s right now and tell them that their cell phone is just a closed container like a brief case or back pack, I don’t think they’ll agree.

Society’s expectation of privacy of change, take this hypothetical, a doctor is driving home with a [stebco] briefcase of patient files, they’re pulled over, low and behold, that traffic ticket they got two months ago that they gave to their clerk, didn’t get paid. So mow there’s a green’s officer huge shout arrest, doctor Steven O’ Dalton DO, Lubbock Texas, you know they got to, they got to take him to jail, with that they mean they could go through that briefcase and read all those client files and find out who had what sexually transmitted disease or who has lymphoma or who has cancer. Anybody thinks that’s a legal search and seizure? Okay we change it to a lawyer with all you privileged client files, No! Okay what about a 9th grade girl and her dairy. No! Folks those are just files, it goes back to 1929 if the police want to look it your files, your personal papers and the facts usually have to have probable cause and a warrant. What is a cell phone? Well that changes dramatically with technology. In 1993 it was a brick like this big and all you could do is call people on it. Now! You know every one of you got one, they all are amazingly off but you can dang there on your office on one of those things.

Granville wins the best case on it, it’s on PDR right now; the States find it like wild! Amarillo court got it right, there they went through somebody cell phone incident to arrest and the state like it to close containers in Amarillo court said “Look! That’s just not like going through somebody’s pants” a cell phone’s not a pair of jeans hanging on the hook that you can just go through, I think you’re going to have to have probable cause and a reason to think there’s evidence on. That’s really the best case, since now since a real kind of funny deal it didn’t answer to the question directly; the officers are handling a situation where they’re looking for a girl and this guy’s trying to call somebody to verify [where abouts] to the officer. Mr. Cisneros was not very smart, back on the consent part, he would do poorly when the cops have you there and you’re going through your cell phone and they know it’s taken about 45 seconds. Don’t pull up all your child porn videos so that when they look at your hand, they can see the child porn videos which is what Mr. Cisneros did and this was the case through alleging ineffective assistance because his lawyer didn’t try to fight all that, they said it wouldn’t clearly establish law.

Black and Deaver are just two examples, they’re not right on point, Granville’s the best one, I guess that will then beg the question, must you have a warrant search cell phones. The drug officer’s always say “Well they could have text messages, those things disappear“. From the cell provider with in due time, 4-5 days Yes! But not from that phone if you really believe they’re communicating, they’re part of conspiracy, go get… say why and go get a warrant but the idea that they’ll they can just search through your phone and use that evidence against you, let me tell you what they will do and I know they do. They just go through it, kind of like NSA, well we’re not going to prosecute you with it but we’re going to use it for intelligence purposes. What is that mean? You have somebody arrested, you’ve got him in jail, they go through his phone, find out who all are contacts are, keep up with it and use that to go scout out other people! They don’t use that against their client but they use the Intel to go scout out who all the other dopers are. It’s not subject to a suppression issue because it’s a map situation but it is.

A protective sweep; this is where officers are lawfully where they’re supposed to be and they’ve got to have a reasonably if there’s a person in the area that poses danger to cops or others, it’s real important, look at the Reasor case, they’ve got to stay within the appropriate scope and last only as long necessary to dispel the reasonable suspicion of danger or presence of another person.

There’s case out there called Rodriguez where the officers are looking for a person and one of them sticks his gun barrel on little 48 inch igloo cooler and flip opens a lid and low behold, there’s two kilos cocaine! Well the court said “No! You’re looking for a person and there are no people that can fit in a teeny tiny cooler!” There couldn’t any danger now looking under the bed, well it depends how high up is the bed, you know when they’re looking in the closet; they just poke between the jackets, that’s okay! But patting and frisking all the jackets because some though clients figured out that’s a real place to stash dope. They like to put it in the jacket in their closet. The ones who’s jacket they own for the when mama dies or their aunt dies, it’s got to be brief and where people are likely to be and they got to have reasonable believe that someone might be there!

Exigent circumstances; we hear that all the time, do not let exigency drive the bus, there’s still must first be probable cause, they got to have probable cause and then you get to check out the exigency. And what exigency is not just we are in a hurry and wanted real bad like an ADD kid at Christmas. It’s some danger to the officers or victims, or increase likely hood of apprehending a suspect or the possibility of destruction of evidence like if they’re standing outside with a shotgun house, its peering beam over and the wrong part of town in Texas and they hear commode’s flushing all of them at once, somebody might be doing something and that might be an exigency! But here are the factors they look out, could you’ve got a warrant? How much time? How reasonable is your belief tat something’s about to be destroyed and watch pull… we didn’t know this could’ve happen, that could’ve happen, that’s a chicken little theory of reasonable belief and that’s not objectively reasonable, are they danger to the police, they hear people, man gigs up, police’s there, did they know what’s happening and are they looking for something that can readily be destroyed if they’re looking for the tire iron with the blood on it from the blood beating someone’s death you know unless they’re running a smelter at the moment or have a cutting torch out, it’s not likely to disappear.

Davis cases; [Fennel Davis] if you practice in Lubbock, you just don’t graduate to the criminal defense bar until you get to represent fennel, whether it’s court appointed or on the super slow pay, you just, you don’t have your spurs till you represented Fennel a time or two and it goes around with everybody, but the great thing is, he’ll fight, he’ll fight a case, man that’s bull shit, Fennel’s over there in the hood one evening and the police come over because the stereo’s loud. They know him from some prior domestic calls with the many of young women who would frequent his company and they ask him for his identification. He looked at them, it was same as it was last month, “sir would you produce your license”, “man you know I don’t drive”, “sir would you identify yourself,” it’s fennel fucking Davis, same it was last five times you arrested me!” [Audience laughs] he said he was acting nervous so they frisked him and found a crack pipe and you know, then they went to the rest of it and found the cocaine. So look you don’t have any reasonable believe, he was armed and dangerous.

Where we usually mess up is, we’ve got a valid basis first stop, they do a terry frisk, there’s some detention or they plainly feel something but it’s got a plainly feel like contraband. Didn’t plainly feel like a weapon, they can’t necessarily go in to pockets.
We get to ask those questions, ‘how do you do this stuff for guilty people? Didn’t they actually have the child porn or the drugs or whatever it was?” Yea! Well just as frank Furter knew about that, he said “It’s safe to say the safeguards of liberty were forged in controversies of people who were not very nice” it’s not designed to protect the guilty but the innocent and force the paternal notion of honest government being more important than any one crime or criminal.

Honest government being more important than anyone crime or criminal. So back to the beginning, young lawyer didn’t argue that case and the assistant DA says “Judge this was a lot of cocaine!” okay! Yeah that guy had cocaine, that’s bad, that doesn’t help society at all. What about honest government? Don’t mean that they’re lying but doing their job right, keeping you honest, being accountable. That is supposed to matter, folks you’re the only ones who make that matter, you’re the only ones who can do it, so if you have to stay up a little late one evening or be in there Saturday morning and have a cup of coffee, look for the issue! The decent in 1950 became the law, he said “if the individual is no longer sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country” it means if you want to vote away all of your rights, you can but maybe you shouldn’t.
What’s scary is that many people might but it shouldn’t be at the hands of anybody in our organization TCDLA, if you’re not a member, please consider joining it, they’d love to have you. This is the most inclusive fun group of people you will ever be around. They will help you for no financial gain or anything, just help you because they’re good and they will be a part of it, stick up through your client, hang in there and don’t let the 4th amendment slip through your hands. Thank you very much!

If you are… if the client is in possession of material and he is on what is called a “peer to peer distribution network” so that he could access another person’s computer or another person could access his computer, then the mere possession in only one place on that peer to peer system constitutes distribution for purposes of the Federal Child Pornography Laws. How much punishment can you get? Well! You can get one conviction and one sentence per image. So that in a film there may be hundreds or even thousands or countless images but the unit of prosecution according to the Woerner case is each individual picture! A Woerner also an important border search case, a guy comes in across the border it, the raid over McCalin and he has history of sex offense 10 years ago so they take his computer away from it and send it to center through seventy four miles and keep it for a few months while they look at it and of course they find child pornography and his prior was considered by the Fifth Circuit sufficient reasonable suspicion to justify the take away.

Restitution in child pornography cases and victim’s rights; these two things intersect, the important case in the Fifth Circuit is “In rate Amy unknown” and going to the Supreme Court now it has a separate… a different name para-line. There’s a 9th circuit case I think called Kennedy going up also. Stan Schneider and Buck Files had the Fifth Circuit case. Amy is the victim course that’s not her real name and Amy is now an adult person, she’s grown up and she has her lawyer! And pursuing to the victim’s rights act and pursuing to the restitution statute. She goes from court to court making an application for restitution in child pornography cases. The Fifth Circuit said that “If she can show a need for future counseling, then all of her needs have to be paid by each convicted defendant or at least each can be held joined and severally liable”
Now! Her first case was a 1998 and her image is still out there, Buck and Stan argued in the Fifth Circuit that there should be approximate cause. They argued that in the 9th circuit, there’s approximate cause requirement, so you must show an injury to Amy from a particular film! The Fifth Circuit said, no no! Emilio guards are writing, each defendant who’s image is out there can hold, can be held joins to me… each child who’s image is out there can be held joined severally reliable, liable for every image that is on the internet. So Amy is now collected over $600,000, she has $300,000 of judgments pending 3 million dollars pending and there’s still cases to come in the future.

That is because the supreme court has up held all statutes that relate to sex offenses, the Adam Wolchart providing for civil commitment of sex offenders in Federal prison and the SORNA, the Federal sex offender registration and notification act would say that “If a person goes from one state to another and does not register when they should then they can be prosecuted for violation of Federal law”. There’s also the national center for missing and exploited children [nick nick] which keeps a registry so that every time Amy’s image comes up or any child who’s identified by the national center as a victim of child pornography, anytime they are in a case then they’re invited through the victim prosecution act to go to court, attempts and make motion for restitution. There’ve been 3200 cases since 1998 involving Amy’s image and she has received financial awards in a 174 cases.

The Supreme Court just couldn’t grant surd in Amy, last Friday they conferenced and Monday, two days ago they deferred ruling on the motion for searchery and mannered the case to get a docketing fee paid. So we’ll have to see soon in the future, in a case in Texas, a university of Texas student, it’s all out there, one Louis and Enrique Alonso was convicted of possessing the image of Vicky and the government filed a motion in sentencing that she be ordered restitution excess of 2 million dollars.

Mr. Enrique Alonso’s parents came and put up a $150,000 sentencing and the Judge adopted that and awarded Vicky a $150,000 and gave poor Mr. [Alonso] university of Texas Al Paso student, a 5 years sentence, the minimum! So it’s there… if the client’s got the money apparently, he can buy down the senate’s by making peace with his accuser. In a case called Kebodeaux in coming out of the Fifth Circuit, our Court Of Appeals did something about sex offender registration that was very surprising. They held that if a person had a sex offense in the military and when was discharged from the military and had no supervision and no paper, what so ever. And then the sex offender registration law was passed. It was unconstitutional to punish them under the sex offender registration law for not registering! Case was argued a few weeks ago and the questions of the Supreme Court in the Fifth Circuit case of Kebodeaux indicated to us that the Supreme Court may be getting some idea of what it is like for defendants subject to life time sex offender registration! We know! Can’t find a place to live, can’t hold a job, family’s get scandalized, third parties becomes serious victims and sometimes the factual basis for the so called sex offense would not convince any reasonable person that those consequences for life time are justified. Justice Sotomayor can congress require all convicts to register for life. Scalia can congress require registration for all crimes. Alioto, how can the government do this for person no longer connected to the armed forces. Justice Roberts! Is every in the military subject for the rest of their life to Federal jurisdiction? Justice Kagan disappointedly thinks maybe so! Because these are civil remedial measures. Justice Kennedy, now concerned about exposed factors to the law, something that in their previous cases seemed to be not much of a problem to them. So look for the Texas case, Kebodeaux case out of the Fifth Circuit to possibly limit national sex offender registration laws.

Criminal law in Texas, purposes of sentencing, we’ve all heard it a 100 times from Texas Penal Code. We use it in voir dire, do you favor punishment for deterrence, do you favor punishment for rehabilitation, it’s almost automatic.

The Federal purposes of sentencing are different, they are lofty and they have sort of two important things about them and they’re supposed to book a world, where the guidelines are not always strictly followed. One is, the rule which I think Margie Myers taught me as the Parsimony rule. It’s down in the first paragraph of 35.53A, “The court shall impose a sentence sufficient but not greater than necessary to comply with the purposes set for the paragraph” there’s a typo in there, it says to company with the purposes which the statute says “To comply with the purposes set forth in paragraph 2 of the section”. So, Federal Judges are supposed to give this lowest sentence they can and then the Federal Judges are instructed under booker to begin with the guidelines and then go to some of the purposes here.

But none of these purposes happen to directly include anything about “Rehabilitation” as a purpose to go in to prison. So the Fifth Circuit determined, now 4 times within the past year that Federal sentencing is not for rehabilitation, it’s not to retaliate against a wrong doer and it’s not because the Judge always does that and yesterday, yesterday the Fifth Circuit in a published opinion called “Windless”, windless ruled that in accessing punishment a Federal trial Judge may not look at mere arrests! Cannot say as this Judge did, I see you’ve been arrested for this about 5 times and I’m considering that in my sentence. The presentence investigation report affective yesterday morning and windless says “There must be narrative description of the events under pending previous arrests” or it is reversible error for the trial court to rely on reversible arrests in determining punishment in Federal cases. Now…back to that rehabilitation, I got to play this image for you and a… in United States versus Garza, a young women went in to a court in Texas for sentencing and the Judge said “Well this has to do with…this is revoking her supervised release and extending her punishment”
I want to give you enough time that you can participate in a 500 hour substance abuse problem. I want to help you get rehabilitated and she objected to that, she said

Speaker: so the Fifth Circuit says “Can’t consider rehabilitation in determining what proper punishment will be in a case called “Grayson Rosales” the Fifth Circuits came to a context where a Judge gave a 70 month sentence out in El Paso!

Now a Federal sentencing hearing is not, a Federal sentence is not done when pronounced. It’s done when the sentencing hearing is finished. So that the government can object and say Judge we think you should give more. The defense could say we think you should get less. We want a higher fine, we want more time, we want less time, so in the Grayson Rosales case, the Judge gave a sentence and the defendant said “Why’re you giving me so much time?” the Judge said, “I think that’s appropriate”. He said, “No!” and the Judge said “I think you’re a lair, I think you have a horrible attitude, I don’t think you have any business being in the United States, you come in to do nothing but serious crime, serious crimes, you don’t like your sentence? Okay! I’m going to change it” and the Judge worked it out from 78 months to 108 months, he added 3 years on because of what he described as the bad attitude of…

Liens and Subrogation

By | Criminal, Immigration, SEO

I get asked a lot to help other lawyers on both sides of the docket figure out, do I really have to pay the subrogation interest on this lien because you know, when you’re client is not getting any money, it’s an impediment to settlement that hurts both sides of the docket. And I get asked this question a lot and there’s is really no one answer but I have developed 8 rules that will help give you some guidance, some frame work, so that you can try to analyze that question; does the client really have to pay the subrogation interest or lien.

I want to start with an overview of what was well was house bill 1869, it’s now a chapter 140 Civil practice and Remedies Code, a subrogation reform act that took effect Jan 1st, 2014 and just by a show of hands, I want to know how many of you all feel like you have already got a pretty good handle on what that law did or does? Haha! I promise you, I am not going to call on you if you raise your hand, okay! And there is a one kind of halfhearted—two kind of halfhearted hands. So turn to pages—start page 15 of the paper if you want to look at the materials and we’ll go through those briefly and then as the talk progresses, I will try to kind of weave into the presentation, how this act does and does not apply to cases you may have.

First of all the act applies or regulates insurance and keep in mind TX has the right to regulate insurance that’s why we have something called TDI (The Texas Dept. of Insurance) and the legislature, so plans that TX can regulate such as private health insurance, your Obama care individual plans, your employer’s sponsored plans that are insured even ERISA plans that are insured, your occupational injury plans as in worker’s complite, hurt on the job but the employer didn’t have real worker’s compensation, that have got an occupational injury plan TX is one of the only states that allows that.
All of these are going to be regulated by chapter 140, Civil Practice and remedies code effective Jan 1st, 2014. The things that are excluded from state regulation are things that TX can’t regulate like Medicare, self-funded ERISA plans. A self-funded ERISA plan is not subject to state regulation and we’ll talk about the distinction between an insured ERISA plan and self-funded ERISA plan in a couple of minutes. I don’t want your eyes to glaze over yet so. we won’t get there quite yet.

Medicate has its own federal state regulatory system chips and worker’s compensation which is regulated by the state but in a different system. All of those are excluded but all the plans included are like I mentioned, private health insurance, employer’s sponsored health insurance and there are some self-funded plans that are governmental within the state of TX. So if you work for a local Govt., if you work for the state of TX and you have what you think of is health insurance but is really a self-funded plan, those are subject to state regulation in Chapter 140 applies.
So what good does this chapter 140 do; The benefits of chapter 140 is a plan can no longer say and actually carry out we’re going to take all the money, if your injured person gets run over and gets hurt real bad. If there is not enough money to go around, the most the plan can take if it’s regulate able by chapter 140 is 50% of the recovery and for all of us in the room, if the injured person is represented by an attorney which is when we are likely to be involved, the plan has to bear its prorate share of the recovery expenses which means basically a third a third a third division and plaintiffs are insured of getting some money.

One of some nice things about chapter 140 is it says you know if the injured plaintiff has multiple plans like a health insurance and disability insurance may be if it is a child and there is health insurance through the mom’s policy and the dad’s policy then all of those plans are competing with each other for their one third. But they can’t encroach on the injured person’s share. Another thing about chapter 140 and I am on page 16 in the section of section on section 140005 an innocuous little phrase.

“If the injured plaintiff can recover for past medical bills subrogation is allowed.”

The flip side of that becomes very important though and here’s where we start learning some of the rules before you hand over money to a plan that may not be entitled to it as in before you commit malpractice. The first rule is; learn who is the plaintiff in relationship to the subrogation interest or lien that is being asserted? Now, obviously if the only person that is the injured plaintiff is an adult, the person with the health insurance, chances are subrogation will attach if the plan did it right.

But if you’re representing a child, if you are representing a spouse of an injured person, if you’re representing the family of somebody who died, all of those are different kinds of claimants and the rules will be different for each and every one of those scenarios and often you can shield the recovery and make it completely free of subrogation.

So, if you’ve got child and you’ve got cases like I got where there’s $30,000 available bill and more than $30,000 of bills or big chunk of bills, how do you shield the recovery? That is a pretty easy answer. When you sign up the case, if you can figure out, there is a not going to be enough money to go around. You sign up the parents not individually and as next friends, you sign them up only as next friends because who has which cause of action is going to dictate who gets money that is subject to a subrogation interest. In TX, 5 year old kids are not legally responsible for their own medical bills. The parents have an obligation to support them and pay medical bills and so it’s a parental recovery for past medical bills to which the subrogation interest attaches.

The child’s recovery is for paying impairment, medical bills that may have after they turn 18 but they don’t recover in their own right for past medical expenses. So if there is not enough money to go round, you sign up the child’s rights, the parents as next friends and to be strategic and consistent in your discovery responses, in your demand letter, in your pleadings, that all your doing is presenting the child’s damages.
Same thing for an estate, keep in mind if there is a death and poor guy lingered a bit before he died so he has medical expenses, the survival action of his estate is for the medical expenses incurred prior to death and the wrongful death cause of action is for the family member’s lost relationship. There’s no medical bills associated with that lost relationship unless grieving spouse and kids go get psychiatric or counseling treatment but the lost relationship is not part—is not burdened by the past medical expenses.

So again, if you can tell and it’s hard to do but if you are clairvoyant enough to be able to tell in advance or when you start developing your discovery that there’s not going to be enough money to go around, sign up only the wrongful death cause of action, plead and prove up only the wrongful death cause of action. Do not ever bring the claim for the survival estate cause of action and then you have a good argument that you recovered no medical bills.
There is no past medical expense recovery for the subrogation interest to attach to because it’s not even part of your damage model it cannot be. Now, you don’t hear me saying, that if you have got the injured adult employee, you can just ditch that person’s claim for medical and present only their payment suffering, physical impairment. You might try that, I don’t know that you’re going to be successful at it but 140005 says, if the person who is hurt can make a claim for past medical, the child can’t, the wrongful death beneficiaries can’t, so they really—you could not go get a Jury award on their behalf and to me that’s the distinction that, if you can’t include the medical bills in the Jury award for the cause of action you plead then you can honestly with integrity say “I didn’t recover it”. In chapter 140 we will back you up on the middle folks in the picture, the husband and wife, if one of them is hurt, the hurt one has their claim for bodily injury including past medical and the non-injured spouse has a loss of consortium claim. Again if that non-injured spouse didn’t go to physiatrist or counselor, there is not medical bills, their recovery is only for impaired relationship and they have a loss of consortium claim that is arguably not burdened by the subrogation interest, in fact that’s one of the lessons of ACS Vs. Griffin.
Good lawyer in Dallas try the case, injured husband, wife had a loss or consortium claim, the main argument in ACS vs. Griffin and I want to point this out was the injured person put their own recovery in a special needs trust and said King X subrogation interest can’t attach to the recovery because it’s not in my possession and the trial court said “you know under ERISA and we will talk about that in a minute, that sounds right, The 5th circuit said, why that was brilliant, Dallas plaintiff’s lawyer.

The plan ACS said, not brilliant and they got a re-hearing and on re-hearing the 5th circuit said, “why you scoundrel, trying the rip off the plan?” and completely reversed themselves.

So is this easy? No but ACS vs. Griffin, money in a special needs trust, the subrogation interest or ERISA Lien still attaches to that, however in that case both at the trial court level and at the 5th circuit, the courts agreed, the wife’s loss of consortium claim had no medical expense recovery to it and was not burdened by the husband subrogation interest.

Now ethics credit, by the time it got to the 5th circuit she was the ex-wife huh, so if you’re going to sign up both the husband and the wife in try to divide it creatively, make sure you have a conflict’s waiver in your plan, in your attorney-client contract because some times during the course of litigation people get divorced and you don’t want to handover a whole bunch of money to the non-injured spouse thinking that that shelters well it does for her or him but not for the injured person, so make sure you know who’s going to end up with the money and that everybody is happy with it.
The second rule, who is the employer through which the health plan arises? Actually I want to back up, I want to talk about the kids for just a second more. I want to flag in the paper, pages 42-44. There is specific language in there about representing kids and there is language that courts have adopted saying “parents can’t just throw away the substantive rights of their children.” Well I think if the parents enter into a health plan agreement that says “I am going to put my child last. I am going to give the health plan the right to come get all my child’s money”. I think that throws way the substantive right of the child. I don’t know how the court will address that but I want you to be aware of those cases, if you are representing kids, if you are the add line for a child, if you are the defense the attorney and the person that is injured is a child, with or without a plaintiff’s attorney representing them. Keep in mind there are ways to shelter the recovery for the child and that should be done.

Okay. Rule number 2; who is the employer through which the health plan arises, like I said earlier if it is private industry, if it’s private Obama care type individual plan, if there’s subrogation language in there and if subrogated language is right, there will be a subrogation interest. If it is state or local Govt. those plans are never ERISA. ERISA excludes Governmental plans from its reach and so State law will regulate chapter 140 will regulate and protect those recoveries. A lot of church plans are not ERISA and when I say church and that’s first united Methodist in the picture, churches are not always just where you show up at 11’o clock Sunday morning. They have day cares, they sometimes own hospitals, so if you’ve got an employee of church day care, church building, church hospital, look it whether or not those are ERISA plans and try to bring them within chapter 140.

So I’ve talked a little bit about the difference between an insured ERISA plan which is regulate able by the state of TX and a self-funded ERISA plan which is not. Again, I am going to ask, so I know how to allocate my time.

How many of you feel like you got a pretty good hand alarm what the difference between those two is and how to recognize them?
Okay! We’ll talk about it. Let’s divide this room down the middle. All of you on your left hand side, you work for Mom and Papa industries a small business. All of you on the right hand side, I am sorry you work for Wal-Mart. Your right just went down. [Audience laughing] Wal-Mart employees and big companies like you know Microsoft, US Airways, they take their premium dollars and they pool them and they form a trust or some kind of plan and they may hire Edna or Blue Cross to manage the money that the pool owns but if one of you gets run over and gets hurt real bad, it’s the plan’s money, the employer and employee can contributions at risk. It’s not Blue Cross that’s going to not make a profit that year because Blue Cross isn’t spending Blue Cross’s money, it’s just managing your money.

An insured plan is y’all are all are shipping your premium dollars off to Blue Cross and if one of you get hurt real bad, Blue Cross is going to take a hickey. Okay, that’s my real sophisticated definition, it’s hard to tell the difference because your subrogation letters maybe coming from Blue Cross and the language is going to go “we are ERISA, we trump”. You have to find out “no, are you ERISA insured?” chapter 140 still regulates or ERISA self-funded. God help you.

So with that back drop, there are some ideas for ERISA plans and I am saying ERISA whether its self-funded or insured and then we will talk more about some ERISA self-funded ideas.

First of all, get the plan. You don’t know how many times somebody’s written to me and said “I have got this ERISA plan, do I have to pay it back?”
I say “well, show me the plan language”. “Oh! I don’t have the plan language”. We didn’t read out the instructions, the plan language—there is a lot from plan to plan and a lot of times you can find things in there to exploit and use to your client’s advantage.
Second, get the summary plan description. ERISA plans have to have two documents, the plan which can be legally is and the summary plan description which is supposed to be kind of the reader’s digest, easy to understand, plain English version. Now, there can be conflicts and the ambiguities between the two, so read both and see which one is better for your client. Some of them have gotten just two cues by half. We half one document and we are going to name it, plan and summary plan description. See? no more catch 22, you can’t use that against us because it’s all one document and courts have said actually no it serves to different purposes so when we are reading it as a plan, we are going to read it and construe it in one way and when we’re reading it as the SPD, we may apply different statutory in contractual principles to how we interpret it.

So get the documents and find out are there some ambiguities and in the paper, I discuss a number of things I’ve seen in plans. Some of them say
“If the participant gets hurt, we get all of the participant’s money”

And participant is defined as an employee. Well you know if it’s the participant’s spouse that gets hurt, then they will say
“and we get all the spouse’s money too”

So you know they don’t get any money because they didn’t identify the right person. Sometimes they say if the third party recovery is not enough to take care of you we don’t care we get it all but what if you’ve got a first party recovery. Those are different.

Now as these glitches get identified by the courts plans tend to clean them up but not always. Some of them say “if your verdict award you fault, we get all the money no matter what”. Okay, what if you have a settlement and there is no verdict. Huh, then there is no right of recovery by the plan. So, analyze with some scrutiny and read some of the examples. I don’t come across them on all that often but when I do, it is sweet.

One example, US Airways Vs. McKetchen; went all the way to the US Supreme Court. US Airways wouldn’t handover one of the documents and I don’t remember if it’s the plan or the SPD but they didn’t give it to the plaintiff even though the plaintiff had been asking, asking, asking until right before the Supreme Court hearing and turns out, one of the documents said “we get the UM UIM money in addition to the third party liability and one of them one so clear. There was an ambiguity so the US Supreme court said, “we are going to send it back to the trial court. Let the trial court scrutinize the language”. Trial court went “you know there is a conflict between the why those tow documents read and the UIM money, there is no lien attached to it because the planned documents didn’t spell that out with specificity. So and that was the bulk of the recovery. So you have to get both documents and read them. The slides medicate but I want to talk briefly about worker’s comp. because yesterday, the First Court of Appeals in Houston handed down an opinion that [laughs], that I have to bring to your attention and it’s not in the paper because it got handed down yesterday.

It is Harris County Vs. Knapp and Aurioles; July 28th first court of appeals, so workers comp. case and not much has changed in worker’s comp. but one area where there is some litigation is “what if the worker’s comp. carrier is the Govt. Self-funded workers comp”. State of TX, some local governments instead of shipping premium dollars out they self-fund their workers comp. Insured plans have to bear pro rata share of the recovery expenses on workers comp. if there is no worker’s comp. attorney actively assisting the plaintiff’s attorney in obtaining the recovery and most of the times they just sit with their hands out and don’t actively assist so they have to bear their pro rata share of the recovery expenses.

The self-funded governmental plans lately have been saying, “oh you know we are immune from liability so you can’t sue us to make us bear our pro rata share so we get a free ride”. We are the state, we’re the govt. we’re here to help, no we are here to take a free ride and there are cases Manback, it’s in the paper. 3rd court of appeals here in Houston has bought into that argument. Now there is an unpublished opinion Parrent but it’s in the paper, Parrent; that talks about how to calculate this pro rata sharing of expenses until you take the attorney fee off the top of you or take the subrogation interest out first and then start calculating attorney’s fees.

Well yesterday in Harris County vs. Knapp and Aurioles, the first court of appeal said something completely different than what any of the other lines of the cases said and that is
“now the State has to bear its pro rata share, Govt. immunity has nothing to do with this, State didn’t get a free ride but you take the subrogation interest off the top then the plaintiff’s lawyer gets you know there contractual share out of the plaintiff’s recovery and the Govt. also has to bear its pro rata share and pay”.

So the calculations are sent out clearly in that opinion. It’s just that that the opinion comes up with different mathematical equation than Manback or the Jill Hurs case which is another governmental one that gave the govt. a free ride and there is a different calculation than Parrent which says no the attorney fee comes off the top and then the comp. carrier also has to pay another attorney fee. So watch for somebody to take a case up to the TX Supreme Court because the court of appeals opinions are in conflict about how to do math and it may be Harris County vs. Knapp and Aurioles that goes up.
So Medicate; you all should be now all be familiar with Heidi Elburn; the poor girl who was run over hurt real bad, got $550K but that was only 1/6th of the total value of her case. Medicate said sorry about you Heidi. Actually we are not because we want all our money back and US Supreme court said “no, if Heidi’s only getting 1/6th of the total value of her case then medicates get 1/6th value of its case”. Heads up congress at the end of 2014 passed new legislation that effectively over rules all born.

It was going to go in to effect in 2014 it got pushed back to 2016, its now been pushed back to Oct 1st, 2017 and the only political thing I’ll say today is whether it gets pushed back again, may depend on how the vote comes out in November. So it also says, we are throwing all born but it doesn’t say what happens next and the states are the one who actually regulate the subrogation portion of medicate as long as they don’t violate federal law so the state legislature would probably have to pass what happens next in TX.

Last legislative session actually represented [inaudible] filed a bill and then realized whoops hah, its pre mature to do that and pulled it down, so that’s an area where my best advice is if you’ve Medicate on the case, settle it before Oct 1st 2017 and watch for new developments after that.
Medicare, and I am sorry we are getting into two small print and I know we are not supposed to do small print on slides but the slides can be downloaded and you can ready the summary.

Ah, you do have to pay past medical bills. The question has arisen over the last several years, what about your future medical bills? Do you have to create a set aside—where you take money out of it and set it aside to pay back Medicare? At first Medicare said, “we are developing new rules for how to do that in third party liability claims”. Yes, if there’s worker’s comp, you always have to do that. In third party liability claims, we are going to develop some rules, they said that in 2012 and 2014 they pulled down there notice that they are going to develop some rules and in June of 2016, they said, “Oh! We’re going to start working on these rules again”.

So what are those rules? I don’t know. My rule is if you get money for future medical bills because your settlement is big enough to pay all the damages including future medical bills then for those medicals bills that Medicare would otherwise pay for perhaps you have to do a set aside. But if you’re like some of my cases and by the way I am not a subrogation lawyer, I am a personal injury lawyer just like all of y’all. For some of my cases if there is not enough money to go around then you document. I am not collecting money for future medical bills because my settlement’s not big enough. And my rule is you don’t have to take the money you didn’t get and set it aside. If you got zero, zero is the amount you set aside and you do a good job documenting that so that your client can argue effectively with Medicare that Medicare ought to continue paying the bills. Of course you do have to pay back that medical bills, you have to pay it back out of pip if you get money for pip that Medicare paid for bills, so my advice is if you are plaintiff’s lawyer, if you are trying to preserve your pip, use it for law Sterling’s, use it for co-pays use it for deductibles, don’t submit bills that Medicare paid for unless you want to pay Medicare back out of pip. Use it up for non-Medicare expenses.

I think I said you do have to use UIM to pay back Medicare, UM to pay back Medicare. It doesn’t attach to the wrongful death cause of action, because in TX the wrongful death recovery cannot include past medical expenses. Those are for the survival claim. So again, if you got Medicare and not enough money to go around consider pleading, presenting, proving, discovery only the wrongful death cause of action.

I want to talk about rule 70.4 and I want to do that also in the context of hospital liens. 70.4 is a fairly new regulation. You may have read the Spiegel opinion. Spiegel was a hospital lien case, the injured person had Medicare, the hospital didn’t bill Medicare. The hospital said, “No, Medicare wants to be the secondary payer where the third party claim is first”. Sounds like a bad evident Costello gig. And they are right but they’re wrong.
The rules for Medicare are Medicare says, ”I don’t want to pay first”, so if within 120 days the third party claim or first party claim is going to pay, that’s the primary payer of the bills. After that 120 day window to settle the claim and most of them are not going to settle in that period of time, the provider has up to one year to bill Medicare. And then, if the provider didn’t bill Medicare within that one year, all they can charge according to rule, 70.4 which is in the paper, is the deductible and co-pay whatever the plaintiff would have owed individually had the provider billed Medicare.
Now I know a very good lawyer who represents hospitals who says, “Judy that’s just malarkey. If the hospital never bills at all, they can charge the full charge master rates. I think he’s the one that is wrong and Medicare may come out with some rules to establish that but my position and from talking to the folks at CMS, there position is if the provider never bills Medicare and more than a year goes by, their filing deadlines passes, the plaintiff only owes the co-pay and deductible.

So next rule, rule #4, what’s the source of money out of which the recovery is sought and we’ve touched on this so I am going to go through the next rules quickly. If it is third party money, chances are subrogation attaches and if it’s first party pip and the subrogated plan is insured or you have a hospital lien, the pip can’t be touched. If it’s first party UM or UIM, if it’s an insured plan or a plan that the state of TX can regulate through chapter 140, if the pip was or if the UM was paid for by the injured person or that injured person’s family, the plan cannot take the first party recovery. So, if Keith is a passenger in my car, his health insurance can subrogate to my pip but if an—I am sorry, his some his health insurance cannot subrogate to my pip but it can subrogate to my UM, UIM because we are not related. If he and I have the same health insurer, it can’t take my UM, UIM because I paid for it.

First party money, the hospital lien does not attach, child support lien does. Why? Because the statute says so, I mean it’s just get out the rules, read the rules. They are not all going to be the same and finally Medicare’s subrogation interest and this is on the page 50 of the paper does not attach to a settlement paid by an individual who is self who, who is un insured. So if I run over Keith and I don’t have any insurance and Keith is insured by Medicare and I just pay out of my pocket to Keith, Medicare can’t touch that settlement. But Keith you’d be glad to know that I have good coverage.

Dealing with hospital liens, there’s a lot of info in the paper. If the person that is injured has health insurance, the hospital has to bill it and under chapter 146; loses the right to collect anything beyond the co-pair deductible if the hospital doesn’t bill the health insurance timely and under, rule 70.4 they have the same disqualification, if they don’t bill Medicare timely in my opinion. If they are uninsured and the hospital goes, “wohoo! We get a file of being lien”, not necessarily, the lien under the property code. Chapter 55 says, the lien must be for the regular and reasonable rate.

Well the hospital will say, “oh we regularly charge everybody the charge master rate”, well they don’t regularly collect the charge master rate from anybody. They give discounts to health insurance, they give discounts to indigent people, they’re required under the affordable care act since march of 2010, if the injured person is uninsured and indigent and you know it didn’t take much to be indigent if you have got a huge hospital bill then the, the hospital can only charge one of only three rates; the lowest that they accept from any insurance plan, the Medicare rate or the average of the three, lowest.

So, if that’s what the affordable care act says, they are not regularly collecting as a reasonable amount, the charge master rate. So send them some discovery and I know you can’t see this but if you go to the website of the hospital, look at what plans they accept. If there’s 40 of them listed, send them 40 inaurogetories from plan #1, what amount would you have accepted as payment in full, if my client had health plan #1? Inaurogetory #2 what amount would you have accepted as payment in full if my client had had plan #2 on your list. Keep going down all plans with an inauguratories to match, hospital won’t want an answer, they would want to deal but first send them more (inaudible) what percentage of your indigent patients actually pay charge master rates. I’ve had them answer. Well, zero. How in the world is that your regular and reasonable rate if zero people pay it? What percentage of your insured patients actually pay full rate? Zero. What percentage of your uninsured people pay the full rate? Chances can be real small. Send them a request for admission along those same lines.

If your client is indigent—and let me skip ahead health and safety code mandates that hospitals develop criteria for determining who is medically indigent or financially indigent then again ask them “okay if my indulgent person comes in, what amount would you have charged if they were Medicare, if they had the lowest rate or average of the three and that is what your negotiations ought to be.

Got to touch on insurance companies; third party liability carriers that go behind the backs of the injured person and negotiate directly with the hospital or the providers, Geico! I am talking to you [laughs] but Geico’s not the only one where the third party liability carrier says, “hmm hospital lien we know that they can’t charge full freight, we’ll just pay a discounted rate, we’ll cut the bills out from under the plaintiff, we’ll spend most of our coverage on the hospital lien and sorry plaintiff, no more left for you” and in our rep letter and you can download the slides, this language is in there. We say, as a plaintiff’s lawyer

“I represent this person, all the bills are derivative of their claim that I am the only one authorized to negotiate”.

So if you want to give money you’ve just made a gift or you’ve tortuously interfered with my contractual relationship with my client and by the way pursuant of State Farm vs. Orives where State Farm took a $25K lien, settled for 10 cents on the dollar and said, “sorry plaintiff we just spent all our money”. Plaintiff’s lawyer says “great, I was actually the procuring cause of why you are motivated to settle because I did all the work to set it up, so you now owe me a third of $25K. Not a third of $2500 you paid, a third of the $25K that your claimant had credited for.

And the court said that’s fine.
So send that letter with as part of your letter of representation. Rule 6; if you’re going to be in front of a jury and you know the jury knows your client has health insurance, consider telling the jury that there’s health insurance and they want their money back. Now under rule 411, and a lot of local motions in limine, the defendant can’t get up there and say “you know there is health insurance”, but nothing says that the plaintiff can’t and in fact UT vs. Hinton which is in the paper says, in the proper case, “yes the plaintiff’s lawyer can say my client does have health insurance and they want their money back”. So that the jury isn’t motivated to just say well you don’t get to double tip. It’s not double tipping and you may have to educate them.

Indemnification provisions; First of all the plaintiff’s lawyer should indemnify for the deaths of their client. There are a lot of states actually have rules saying that is the conflictive interest for the plaintiff’s lawyer to do it, so defense attorneys don’t ask and what you should do in your indemnification agreements is say “we are going to make sure the plaintiff only indemnifies, if the defendant insurance company first tenders to the plaintiff”. Notice of any assorted lien after settlement and in opportunity to defend or resolve it because the last thing you want to do is to find out as a plaintiff’s lawyer, your client had defenses and we just got through talking about a lot of defenses. If you allow State Farm or Geico or All State to pay and then get its money back from your client when in fact there were defenses, you just waived them as in committed malpractice.

So require is part of the indemnification that the plaintiff give notice. Finally, if the question is does the plaintiff’s lawyer or the defense lawyer or the third party liability insurance company have an obligation to make sure subrogation interest gets re-paid. Case law is not uniform on this, but lately in the last year or year and a half there have been some opinions they talk about attorney immunity as long as the attorney gives the money out as part of their duties to their client, they are immune. Now, watch out! There is some older case law to the contrary and in the seventh Federal district court of appeals, a lawyer that tried that, distributed the money, the plan brought him up on contempt and the seventh court said, “this argument that you didn’t really collect for past medical bills is contumacious effrontery, it is nonsense and we’re going to consider jailing you. Jailing you! If you don’t pay back that $180,000”.

Be aware of the Montaniel opinion that came out in January that talks about whether or not the plan can sue your claim if you distribute and on the note of, we might jail you. Huh, Good Luck!

jury selection voir dire personal injury trials

By | Criminal, Criminal, Driving While Intoxicated, Immigration, SEO

You have one goal in voir dire. Find bad jurors. Hunt them out and find them. That is your goal, any other goal is subservient to that, any other goal is, not in many case contradictory to that. Your one goal in voir dire, find bad jurors. That’s what the voir dire is all about. Now what are the mistakes that I typically see as I’m sitting up there.
Mistake number 1, omitting critical questions, a lot of people just flat don’t ask questions that ought to be on every checklist in an auto collision personal injury case. E.g. who here has problems of awarding—or even thinking about awarding pain and suffering and mental anguish damages? You’d be astonished how often that I see voir dires in which that question is not asked. And I’m literally up that kind of scratching, “okay you don’t want to know?” Fine.
Second problem I see is asking the wrong question, asking the other side’s questions. What do I mean by that? Typically one of the things that you want to know in a voir dire is who has been involved in litigation? Who has filed a law suit or filed claims? Who has had claims filed against you or have law suits filed against you? Okay you want to know that. But I often see a plaintiff ask the following question. “Ah Ladies and Gentlemen; folks on the jury, folk on the panel. Who here has filed the law suit?” Number 2 number 4, tell me about that and then they don’t ask the flip side. “Who here has had a law suit filed against you?” Guys all you’ve done by asking that first question if you are a plaintiff, who here has filed a law suit? What have you done? That guy’s sitting over there next to you, your opponent; you have now told him two people that he needs to strike. All you’ve done is flag his bad jurors.
You don’t want to find your good jurors, that’s not the point of voir dire. Remember what’s the point? find the bad jurors. If there are good ones that happened to be in there, great, but if you flag them, if you identify them, then you have given the other side a strike. So, I will frequently see people ask questions that just do nothing more than illicit their good jurors. What you want to know if you are the plaintiff here is folks out there on the panel here, who here has had a law suit filed against you or claim file against you as a result of personal injured case or personal injured claim. That’s what you want to know. And then you want to talk to them and see to what extent they are going to affect their views. To what extent they are going to be fair. But your goal is to flag the bad jurors. The final, big mistake I see is arguing your case and let me profess this you know we’ve all seen the you know I call the anonymous intro like, Hi, I’m Randy and I’m an alcoholic hi randy. Well let me begin by saying, Hi, I use to argue my case in voir dire. Hi randy, I used to be the world’s worst at it. I would argue the heck out of my case in voir dire because I believe in the proposition of the primacy. That is get your arguments out there first. The problem with that is you don’t find the bad jurors.
In fact it obscures the bad jurors. Once you start selling your case, once you start propping it up and letting the jury know all the good things about your case, then it becomes harder and harder to find those jurors that have a problem with these kinds of cases in general.

Preservation of Error In Criminal Cases and Defenses

By | Criminal, Criminal

It basically means that if the trial court – it’s that whole rational jury thing again if no rational jury could agree with that. And number two; the existence of the presumed fact is submitted to the jury, the court shall charge the jury in terms of the presumptions and specific element to which it applies as follows:

• The facts giving right to the presumption must be proved beyond a reasonable doubt.

• That such facts are proven beyond a reasonable doubt. If such facts are proven beyond a reasonable doubt, the jury may find that the element of the offense ought to be presumed exist, but is not bound to self find.

• And even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged.

• If the jury has a reasonable doubt as to the existence of a fact of facts giving, fact or facts excuse me, giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

Affirmative defenses. Standards of review, let’s talk about that;

Four affirmative defenses exist under Texas law, according to Meraz and Pender;
• Insanity
• Mistake of law
• Duress
• Defense to criminal responsibility of a corporation or association
• The accused is required to establish an affirmative defense by a preponderance of the evidence.

The rejection of an affirmative defense is also weighed by that civil standard.

Okay! The Standard of review for affirmative defenses. The standard for reviewing affirmative defenses on appeal is whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. We hear that again and again.

Reasonable Belief is based on Penal Code Sec 1.07(a)(42), Mistake of Fact is in Texas Code Sec. 8.02(a)

Harmless Error:

Whenever it appears by the record in any criminal action upon appeal that any requirement of these articles surrounding jury charges has been disregarded, the judgment shall not be reversed unless the error appearing from the record, was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of trial. That’s Almanza basically, right there Article 36. 19.

Ordinary Error;

The accused must preserve error and demonstrate harm. In Federal Court, we call it plain error. That’s objected to an error that is so fundamental that you don’t have to have an objection. Well, that’s pretty rare. In Texas, were seeing that’s not happening very often, not with our high courts.

Fundamental Error in Texas we call it structural error. Again, that’s really really difficult; it’s really difficult to show structural error. Okay! Again Article 36. 19 talks about if the error was calculated to injure the defendant’s rights so that he does not have a fair and impartial trial.

Criminal Investigation with Public Records

By | Criminal

Public records! Now we’re going to get to the simple lesson on cutting your finger! Look at everything and make notes. Go to the courthouse. Any place that person’s lived. Type in their name or give it to the clerk. If they don’t have anything you can type. If it’s a witness who’s going to testify in your case. If it’s your client, go pull their file. I’ll give you a couple of illustrations. This is just nothing, but boring determination, helping you out.

Now 9 times out of 10, you don’t find anything special. Heck, maybe 19 times out of 20 you don’t find anything special. But that one time you do, it really pays off in spades. I had a drug case 2 years ago. Drug/murder, whole thing. There is a woman who’s been charged in the case. She been convicted, she got 5 to do. Her case was already plead, and she’s going to testify against my client. So they say! But they promised, there’s been no deal, there’s been no deal, and there’s been no deal! They say it on the record, “there’s been no deal”. Well, I went down and looked at her file. God bless Judge Darnel. You know how as lawyers, we get letters from people from prison. I really want you to help me with your case. Well you have people who can’t afford you and come in. Well DA’s office gets the same people, it’s called Walk-ins!

The police will send them over there. Nobody wants to talk to them, you got to deal with them. Well judges get them! They get people who send them letters from the jail. If they do the right thing. They take that letters from people in the jail! If they do the right thing, they take that letter and stamp it, and they put it in that person’s file or that file that it’s related to! Well low and behold, this young lady, who I’d been told, didn’t have a deal, didn’t have a deal was writing to the judge.

“Dear Judge, this is bullshit. They didn’t give me my deal. They told me they were my deal. My brother was supposed to be released! I was supposed to get 3, not 5”. Well there’s somebody who thinks there was supposed to be a deal. That helps tame things a little bit. I had a federal case in Odessa three years ago, the States star witness and this 30 defendant cocaine case, there’s a lady! They say she has got one prior, its right here in Odessa. That’s all there is! That’s all the motive behind her testimony. Well first we went and looked in Midland, and it was minor league fruitful, but she had to be creative. She had about for 4 forcible entry entertainers in JP court. Well forcibly entry? That’s just didn’t pay their rent. That’s not admissible! No. But go talk to all those landlords.

Witness Interviews in Criminal Case Investigation

By | Criminal

Let’s talk about approaching witnesses. And this didn’t matter, its family violence, domestic assault, the gang shooting out in front of the club Rio or whatever. You kind of get your mind right. You’re going to be Colombo here. You’re going to be talking to people. Now police have an inherent advantage. They’re the police! They’ve got a gun. They’ve got a badge. There’s little fear and respect that goes with that. When they come up, “I want to talk to you Mr. Milner”. Your heart usually beats a little faster and, they may not be dying to talk to him, but they will probably “woah” a little bit. There is this sense that they can make you stay and talk to them or if you’re rude or just want to shut the door, you might get into trouble.

The minute it comes out that you’re the criminal defense lawyer or the investigator for the criminal defense lawyer, especially if you got angry people on the other side, it might be good to have somebody else around but you want to be humble and meek and you need to get your mind right. But when you do get to approach them, you need to use some techniques you do in [inaudible] or just, general human contact. You need to make them feel important. Be a part, “yes I understand that”. Maintain your eye contact. “Well he killed so and so and I, I understand that you know, the court makes us do this and I just, tell me what you’re feeling” Just keep them talking, whatever you, keep them talking.

And be empathetic. Do not argue. Do not try to persuade. Listen, the more they talk, the more you can get something! And you never know what might fall out of their mouth. Appeal to the their sense of fairness; Well it wouldn’t be fair if I could… man I’m sure everything your telling is true and it wouldn’t be fair to not know ii. Would it? No! Well thank you. It wouldn’t be fair now to just talk to one side, would it? I just want to know the truth. I want to get to or throw this little curb. I want to get to the real truth. And sometimes an eye brow perk up,” what do you mean by that?” Well if you’ve seen the police report of what the office quotes you, “Never! No!” Well would you like to see? Here I’ve got a copy! And then just ask them about the circumstances of which their statements were taken. Where was it? When? What was their state of mind? “Well it was 3 in the morning and we’d been partying all night! We were strung out on speed and beer”

None of that’s in the report! Or,” they were threatening to take my kids if I didn’t talk to them or call in CPS right then”. That are not in the report. Might you want that in cross examination? Might that be favorable to the defense to learn how they talked to your, to this witness before that came out. You bet? Sometimes well you got to distance yourself from your client a little bit. I mean let’s face it, we have some people who as Mr. Goldstein says has,” an unfortunate similarity with the facts of the case.” So, especially with the crime of violence they [inaudible], “you represent that pervert?” “Yeah yeah, yeah I do” and then you didn’t shook it off, “Well you know, the Judge gave me this case, and…” you don’t want to say anything that necessarily might come out badly in cross. “Well you said he’s a sorry pervert, you just had to do your job”.[audience laughs] Don’t say that! But, you might do a little shuffle there. You’re just trying to get in the door. And talking to people though, you’re going to find there are about 4 kinds of witnesses out there in the world. Whether this is on a writ where you’re trying to, piece everything back together or it’s just that it’s that new case you got.

There are people who hold back, people who hold out, people who can’t hold back and people who are hold up! What am I talking about? People who hold back have trust issues. They know something but, they don’t want to talk to you. They have information which is X, and they, ”huh!” They don’t know. But you’ve got to get to the information. You’ve got to be patient, and you got to build trust. Maybe they think they’re going to get into trouble with the police, if they talk to you. Maybe they’re already oriented in one particular way. They, they really don’t want to be involved anymore. They want to go on with their life. They wished they didn’t ever, said anything. They wished they didn’t see anything. Or maybe they just think they’re not supposed to be talking to you! Or they’re about to, man like, “I’m a republican businessman. I don’t want to have to testify in any hearing!” But you know this guy is innocent! “Man, I’ve got my taxes to pay”. Oh, so sorry to bother you! You know, you got people who hold out. They’ve got attitude or an alignment. These are usually people, if you talk to EMTs; they think they’re junior cops. So we get, George is, you know intoxicated manslaughter case and you want to go talk to the EMTs…! EMTs and firemen are junior butthole buddies to most police officers.

At least, in terms of, or until they get their own DWIs family domestic violence case, which happens! But they have, you show up and especially, you get some 25 year old, can do 200 pushup kid you know, maybe he was in the core and maybe he wasn’t. And you tell him, “You know you’re here representing Jimmy Joe Dumbutt, who’s charged with intoxicated manslaughter” or so and so. And they just almost sneer and leer at you. Use the Judo, be great! But they don’t want to be involved, or they want something for it. Maybe there’s somebody who’s a little, skinny shady. And they’re out there in the street too, and they know about this case! But, yeah yeah, they know your client. They got a fact that could help him! Maybe that officer pulled over a bunch of people or maybe made remarks to other people later. But they think your clients also sitting on, you know, the financial reserves of 3 keys of crack! And unless he pays them some money, they are not testifying for him.

And they’ll approach you with it. Be careful! You don’t know if they have any information, but they are holding out on you. Then you have people who can’t hold it in. This is the gusher. This is Mrs. Mayella Sue Johnson, and she has told everybody at prayer group, at church, at the diabetes association [audience laughs], in the neighborhood, who made eye contact with her! All about her involvement with the biggest case in her life, since the kids graduated and went to high school. The great thing is, she will talk to you! Probably longer than you want to listen to her. And it may be completely favorable to your client. But the bad thing about a gusher is, they have gushed others. That is kind of like people telling stories,” yeah we was out on lake Kelabares and we went over this bump and we caught a bunch of croppy [inaudible]” “how many did you catch?”. “Oh 8 or 10 but we caught them in an hour”.

Two years later, it’s like, “the warden caught us with 20 over the limit”. You know the stories change. Ask a guy, everybody, well Louis Dickson was telling me last night,” Everybody’s, male is convinced of 2 things; that they missed out on a major league baseball career and they could have been an actor! You know, BUT FOR, you know there was that one thing, holding them back in life. Well, you know, ask a guy if he played high school football, if he was the water boy, he’ll tell you he ran for a thousand five hundred yards and “they had me to scholarship, to some school that don’t have a program anymore” you know blah blah blah. The gal will too! She will tell this story until she is the hero. It’s like one of those bad episodes of Three’s Company, which was pretty much all of them.

Where, they begin the program with something happening and then we listen to Janet’s version and Jack’s version and the landlord’s version, and all of them are hilariously different than the other. Well that’s what the Gusher will do. She will probably create at least 1 to 5 prior inconsistent statements to the one you get. And sometimes, they have a lot of emotion. Its Dear Aunt Sally! “oh I know he couldn’t have slept with that girl, when they were spending the night because so and so because he’s just a good…!” because what happened is, he may actually have good relevant factual information that helps you. But they’re so obviously on one side, that the jury is likely to discount their testimony. It’s kind of like when your client says; Oh I wasn’t there! Where were you? I was with my mamma! Oh great! You know, [speaker laughs] you know how that cross examine… You love your son, you do anything to help your son. You ought to help him. You know, Right! It’d be better if he’s in strip joint, throwing money at people, on camera!

Than home with momma! People who hold up. You read into this on Redsaurus as time goes by in cases, these are people who are, they’re hard to find! Especially if you’re doing court appointed work, these people are likely to be off the grid. They don’t have a credit rating. They don’t have a credit card. They don’t leave a forward addressing. They’re two steps patch of road! [inaudible] They are trying to get by, in life. And there may be a critical witness, to this horrible double drug homicide, that it’s now capital. And that one little blonde gal who you need to find, who everybody talks about but only knows her nickname! She since relocated to Seattle.

And she’s dried out, and got her life together! And would really not admit. She used to trade it out for a line of speed about, daily! She probably liked not to re-live the hell that was her life from 15 to 25, now that she’s 35. And she sure doesn’t wants her boyfriend or new husband, or new neighbors to find out, she’s had a very different other life. Its not just women, it could be a guy! But you got to understand, this happens! Some of our clients come out of the underworld and get a new life and move on. Some of them are total thugs and have gone and created a drug kingdom in Miami. [Speaker laughs] And really don’t want to come forward! “Waldy Bodger?” “Who? I don’t know him.” He comes from Boston. First part is just finding them and that’s where those first 3 search engines can be really helpful! Remember with ladies, the last name can change on you.

If there’s a marriage, much more convenient with women, so you want the identifiers. Watch for inverted dates of birth. Just one day difference, a little thing, it may still be the same person. Professional license, nursing Boyds [inaudible], things that, transfer State to State. Check those professional license databases and you can keep things, things keep hop scotching! But let’s say you locate them and then you can break through the first barrier and actually talk to them and you get that golden moment; yes I was there. Yeah we’ve been shooting up. No I was lucid.

No, you know and this is the case where the first guy comes and says,” No the other guy shot him” because he was the one that did the shooting! You know they were both there and wanted to knock these people off. She knows who really did the shooting. Well now how do you maintain her through trial? Well what if they’re just really sketchy street folks? Well you’re going to put them up in your office for the next 8 months, waiting for trial! You know, “well I promised to be there!” Man they’re not be able to remember where they spent the night last night! So maintaining them through child is a challenge and you have to look at the value of the information they have for you right than some method of preserving it, and what it’s going to be like in the future.

Constantly assess your witness. Anything they say to you, as long as they’re talking to you, validate it! Say it back to them looping like,” Bob Hershawn teaches us in void dire. Look at them with their eyes. Be accepting with your body language. You may want a recorder or another person around when you go there. Have you seen your police statement? How did that officer make you feel? What did he say or communicate to you? How long did it take? Why? How long have you seen a witness statement that’s like 4 and half sentences, but it took 4 hours to get? Now you can read it in 0:26 seconds but it took 4 hrs to cobble this together. Might be some other information. Recording! You need to know your local law about concealed electronics and obvious electronics.

Obvious especially, if you disclose them it will never get you into trouble. Alibaba.com and good old BestBuy! You can get your stuff there for cheap; from 250 down to 60 bucks. You can get digital recorders with a good SD card. First you might want it for yourself, to keep somebody from running off to a DA alleged witness tampering. With what we just heard from Miss. Eder and all that! There will be an explosion. There will be a somebody somewhere, who is a prosecutor with a grand jury who gets all happy with witness intimidation or retaliation or all sorts of things like that. Well, just for your own law license sake, you might want to record that you did not offer this person a bribe, tell em to dodge a subpoena. Or threatened to do anything to them if they didn’t talk to you and testify to you in a certain way! At the same time, it may be nice to have some impeaching document, should they do a 180 on the stand, other than, “but you told me…!” which doesn’t do you any good! There’s another talk in another room that does a lot better a job at this, than I am. But cellphone triangulation! Can a person be, where they’re supposed to be or shouldn’t be. There’s a cell tower radius, so most of them, about 3 miles.

You can read about this if you, the duke lacrosse players if you remember that? There’s a real good book on them. That was the first time I even realized, this was a possibility! It turns out the lady who was the stripper, who was making the acquisition. One of the young men read Celligman could prove, by his cellphone records and messages in the cellphone tower, that he was 3 miles away from where this deal was supposed to have happened, when she said it was happened. So his cellphone records were his alibi. God how do know that kind of science existed! Well there’s another talk elsewhere, from a really sharp fellow who will tell you of that, a lot better than me. Text contents are available, just for a few days from the provider. But they’re forever on the phone they’re on until they are deleted. But you can print them and photocopy those. The calls! Actual calls, unless you’re the NSA, you can’t get the contents! [Audience laughs] But the length, the date, the time and the tower are kept like 9 months to a year, depending on whether; like AT&T keeps them a year, Spring Horizon about 9 months. So, if you get your case early enough and you get your subpoena, early enough, you might be able to get those, but you need to know the number or the number provider.