Criminal

Criminal Litigation

Now we have a case called Montejo case. And when this came out, I was fortunate enough to have a discussion with Henry Bemprod who’s now one of our magistrates. And he was telling me,” all was lost, all was lost” you know after Montejo. And then in Federal Court, it really kind of is! But, now we have a case in Texas called Pasina and to Elsa al Claw, justice, excuse me! Judge Al Claw, there’s a couple of them in here in Texas but Elsa, she wrote a really good concurrent. Now I want to explain to you what the court of criminal appeals, held in Pasina. Pasina looks at, Roth Gary and looks at Montejo and says,” ok! Well what’s left? What’s left? When did these clients have to assert their rights? What are the magic words? What do they have to say?”

In your jurisdiction, you may not have this problem’ but here in San Antonio over the last 25 years, we have a lot of problems with statements and police officers taking statements, not giving Miranda warnings. Ok? We have a lot of problems with our courts of appeal understanding; the difference between a 5th and 6th amendments’ right to counsel whether or not you’re free to leave in or whether or not you’re in custody. The very basic elements! So, when you’re assigned a case, when you’re retained, hopefully for a very large fee on a case! You need to start looking at the very beginning. When were they arrested? Were they in custody? Did they make statements? Were they warned? Were they allowed to go back home? Ok I’m going to, go through this little bit quickly.

So basically, at your magistration hearing, the article 1517 hearing, under Montejo and under Pasina, that does not necessarily trigger your 5th amendment rights. I want to talk to an attorney, before I answer any questions with the police. We were so excited after Roth Gary but that’s not the law. Now, what justice Al Claw points out in her concurrence and I wrote a really big fat paper for you all to take home with you. If you don’t have one, I have some more up here and I’ll give you one before you leave. I get little carried away when I write papers I get all excited, you know, this is fun stuff! So, what Justice Al Claw points out and this is what the discussion Harry Bemprod and I had I said but we’re in Texas. Ok? We have the Texas constitution, we have the court of criminal procedure and Roth Gary and Montejo do not necessarily control those.

And that’s what you need to remember. As you need to remember that Article 1517 and the court of criminal procedure and the Texas constitution, can give more protection to your client, than the federal constitution. States can give more protection. So Justice Al Claw sets out, very nicely in Pasina the arguments you could make! As to why ok! Under federal constitutional law, the magistration hearing may not trigger; right to cancel, for interrogation purposes, but in Texas it might! So keep that in mind. Ok? Keep that in mind when you re filing your motion to suppress and when you’re looking at statements of accused.

I spent a little more time on this than everything else in my talk but I think it’s really really important. So what are examples of critical stage proceedings, the 6th amendment right? Ok? You’re right to counsel, interrogations! After Article 1517 hearings. Ok? Now, Montejo was a little strange because the individual was in prison as I recall her in jail and was already in custody.

So, it was a little bit different. But if they’re interrogated after the magistration hearing, that does trigger 5th and 6th amendment rights, to counsel. The court’s line ups, examining trials, psychiatric exams, plea negotiations, arrangements, pretrial hearings and trial, you have a right to counsel.

Francisco Hernandez

Author Francisco Hernandez

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