Texas Board of Legal Specialization Test Questions for Criminal Board Certification

Bob jones indicted possession of a controlled substance. The relevant portion of the indictment read: “on January 1, 2002, Defendant, Bob jones, did unlawfully possess a controlled substance.” Mark davis was indicted using identical language but his indictment contained an enhancement for a prior felony conviction for aggravated assault. Both hired Dan Lawyer. Prior to trial, and in response to concerns raised by Mark davis, Dan Lawyer reassured both defendants that he was looking out for their best interests and that “everything about my representation is legal.”

Dan Lawyer timely filed a motion to quash the indictment against Bob jones. On the day of trial, with the jury in the hall, Dan Lawyer raised his motion to quash before the court. It was overruled, immediately thereafter, the State asked the court’s permission to “change the cause number in the enhancement paragraph” against Mark davis. Dan Lawyer characterized the change as an amendment and asked for an additional 10 days to prepare for trial. The court denied the request.

After the jury was seated and before voir dire began, Dan Lawyer asked for a jury shuffle. The State’s objection was sustained. The record does not reflect any irregularities in the statutory procedures used for calling the jurors, or creating the venire list.

After a jury was selected, both defendants entered pleas of not guilty and sat on either side of Dan Lawyer. The prosecutor introduced sufficient evidence to overcome a motion for instructed verdict. Dan Lawyer called Bob jones as a witness. He led his client through all aspects of the crime not covered by the prosecutor. Bob jones placed heavy emphasis on the significant role Mark davis played in the course of events leading up to their arrest while minimizing his own. After the defense rested, the trial court asked Mark davis if he had discussed trial strategy with Dan Lawyer. The response was a short “no.” The jury found both defendants guilty. Bob jones received 10 years probation. Mark davis received 70 years.

1. Was the Court’s ruling on Dan Lawyer’s motion to quash the indictment, request for additional 10 days, and motion to shuffle correct or incorrect? Why?

2. On direct appeal, what ground of error will most likely be successful in reversing the conviction of Bob jones and Mark davis, and why?

District Judge Judy appoints Clarence Darrow to represent Indigent Defendant, Martin Gomez, a foreign national charged with shoplifting a diamond ring worth $25,000. After looking through the prosecutor’s file, Sam waived indictment and time to prepare and asked for a trial to the court. Clarence filed a written waiver of trial by jury signed by Enrique and agreed to by the prosecutor.

At the trial, held a week later, the prosecutor’s sole witness was an off-duty police officer who testified that he observed the defendant steal the diamond ring. The officer testified that after the arrest, he immediately took the defendant before a magistrate who conducted a hearing as required by TEX. CODE CRIM. P. ART. 15.17. According to the officer, at the conclusion of the hearing, the defendant informed the magistrate that he was not a citizen of the United States and that he wished to have the judge immediately inform the local consular official from his country of his arrest. According to the officer, the judge refused the request, and the defendant then signed a written confession. When the prosecutor offered the confession into evidence Clarence darrow objected on the ground that it was obtained in violation of the Vienna Convention on Consular Affairs and was inadmissible under article TEX. CODE CRIM. P. ART. 38.23The trial judge overruled the objection, admitted the confession and subsequently found the defendant guilty. Punishment was assessed at two years confinement.

After sentencing the judge unilaterally removes Clarence darrow as the attorney of record and appoints another attorney, New Lawyer. The record is silent as to the reason for the judge’s action. New Lawyer and Enrique ask the judge to permit Clarence darrow to remain attorney of record on direct appeal. The judge refuses and appoints you.

1. When does Clarence darrow obligation to represent Indigent Defendant end?

2. As newly appointed counsel, identify and discuss what action you would take toward what end, the legal basis for the action and the probable result to replace yourself with Sam?

3. How would the appellate court rule on Enrique’s objection to the introduction of the confession on the ground that it violated the Vienna Convention?

Number 2

Jim Hamilton, a shy but culturally abused young man of 18 years of age, with a penchant for wearing push up braziers, was arrested and accused of murdering and sodomizing a traveling wholesaler of beauty supplies. “Jimbo,” as his friends refer to the defendant, was arrested pursuant to an arrest warrant issued by a local judge. Probable cause to support issuance of the arrest warrant was based on the affidavit of Det. Switchman. The affidavit stated that Det. Switchman personally spoke with Ruth Justine, an acquaintance of Jimbo, who told him that she had witnessed the murder and deviant sex act committed by Jimbo. She further told the detective that she helped Jimbo dispose of the murder weapon, a large set of bolt cutters. The affidavit stated that Det. Switchman asked Ms. Justine to take him to where the bolt cutters had been hidden. The bolt cutters were found buried behind Jimbo’s house in an open field as Ms. Justine had stated. The affidavit further related to the magistrate that Jimbo’s fingerprints were found on the bolt cutters. (Jimbo had a prior arrest and conviction record for various petty offenses, mostly public lewdness, prostitution, and burglary of a coin operated machine.) The affidavit detailed the fact that the deceased was beheaded and that the medical examiner indicated that death was caused by shearing the head from the torso. It also stated that the medical examiner said that the bolt cutters were consistent with the type of weapon used on decedent. A sworn statement of Ruth Justine was attached to the affidavit.

Jimbo was arrested and given his Miranda rights. After being given his rights, Jimbo stated that he wanted a lawyer and had “nothing else to talk about.” Due to the brutal and sadistic nature of the offense, detectives were insistent that Jimbo confess. However, Jimbo stated, “I got rights. I want a court-appointed lawyer and I want him now.”

Approximately 12 hours later, a local attorney (Clarence Narrow) was summoned to the police station. Lawyer Narrow was allowed to see Jimbo. During the meeting, Jimbo was less than lucid and made statements to Lawyer Narrow that lead Lawyer Narrow to believe that Jimbo was “not playing with a full deck.” Lawyer Narrow told Jimbo five separate times that he (Jimbo) was to say nothing to the police or to anyone else unless his lawyer was present. After the meeting, Lawyer Narrow told the detectives that Jimbo was “not dealing with a full deck” and that they could not question Jimbo unless he was present. The detectives assured Lawyer Narrow that they would not question Jimbo, but one remarked that Jimbo was a “sleazy maggot” who deserved no constitutional rights.

Within seconds after Lawyer Narrow left the police station, the detectives returned to Jimbo’s cell. Before they stated anything to him, Jimbo said, “I’ll tell you everything you want to know, but you gotta cut me some slack.” Det. Switchman said he was authorized to cut no deals and could promise Jimbo nothing, but told him that anything he told them can be used for or against him and that his cooperation would be brought to the attention of the district attorney. The detectives tape recorded Jimbo’s oral statement.

Before the tape-recorded comments of Jimbo could be typed up, Lawyer Narrow returned to the police station. He asked for his client, but was informed by one of the detectives that questioned Jimbo that Jimbo had been taken to a psychiatric hospital. Lawyer Narrow was directed to the hospital and left the police station.

While Lawyer Narrow was gone, the oral statement was typed and given to Jimbo to read and sign. Jimbo told the detectives he would not sign it unless he was allowed to go outside and have a cigarette because he was having a nicotine withdrawal attack and he could not think clearly. The detectives took him outside, gave him a pack of Kools and, while chain-smoking five of the cigarettes, Jimbo reviewed his proposed written statement.

Upon review of the statement, Jimbo said that it was not correct and that he needed to make a few changes. The detectives told him that he could correct those in a second written statement, but that they were about to go off duty and that they needed him to sign the statement. Jimbo agreed to sign the statement when he was told that he could keep the rest of the pack of Kool cigarettes.

1. The defense files a motion to suppress the confession arguing that the defendant’s rights under the Fifth and Sixth Amendments were violated and that the confession must be suppressed. Imagine that you are prosecuting Jimbo. Fully argue why his oral and written statements are admissible, if they are. Anticipate possible defensive arguments and counter them, if you can.

2. Assume that you are now defense counsel and the case is going to be submitted to the jury. What requested jury charges would you submit? Why and how would you submit them? Explain in detail.

Question

FBI Agents with an arrest warrant issued by a federal magistrate entered the premises of Dr. Benjamin CocO to arrest one Maurice Flem. The agents had received information from a reliable source that Flem had been living with Dr. Coco for some time and could be found at the doctor’s home. The arrest warrant issued by the federal magistrate was for the offense of interstate transportation of stolen securities. Assume that the federal agents had amply demonstrated to the magistrate probable cause to arrest Mr. Flem for the offense.

after entering the premises by breaking down the door Without announcing their presence both Dr. Coco and Flem were found in the doctor’s bedroom. Rem was immediately arrested, placed in custody and taken to the awaiting patrol car parked across the street from the doctor’s house. The agents then decided to search for the stolen securities in the bedroom from which Flem had been taken. Dr. Coco was outraged and told the officers that their conduct was unconscionable that they had the right to search for anything and ordered the agents from his home. The agents continued their search. In the bottom drawer of Dr. CoCO’S desk, a vial of what later turned out to be high-grade heroin, a controlled substance, was found.

With a grin upon their faces, the agents looked at Dr. CoCO and opined ‘Doctor, you better hire yourself a big time mouthpiece, because your ass is ours.” Dr. Coco was then arrested for possession of an illegal substance. After being read his Miranda rights, the doctor orally confessed to possessing the heroin. He stated that Rem did not know that the heroin was in his house. In an attaché case found under the bed, agents found and seized securities, which were later determined to be stolen. It was determined that the attaché case belonged to Flem.

Assume for the purposes of this question, that there is no conflict of interest in the case and that you are retained by Flem and Dr. Coco. Dr. Coco is charged with possession of heroin, a controlled substance. Flem is accused of interstate transportation of stolen securities.

1. Identify the issues raised by the hypothetical and state what you are going to argue in federal court on behalf of each defendant. As best you can, segregate your argument as to each defendant. In your answer, attempt to respond to any likely prosecutorial arguments.