Texas criminal defense lawyers who have received physical evidence incriminating their clients are in an ethical no-man’s-land and vulnerable to prosecution. There is currently no clear ethical rule to guide the defense lawyer and no real protection from being used as a law enforcement tool against your own client.
Like the Roadrunner and Wile E. Coyote, those who would watch child pornography and those who would prosecute them for doing so continue to try to outwit each other. In the real world, though, it is Mr. Coyote (the Government) who often prevails. Recently, I learned about the child pornographers’ use of The onion router (“Tor”) and the Government’s use of a Network Investigative Technique (“NIT”). United States v. Croghan, ___F.Supp.3d___, 2016 WL 4992105 (S.D. Iowa Sept. 19, 2016), and United States v.
Metrology is the science of measurement. The State often relies upon measurements to prove allegations against our clients. For example, the determination of breath and blood alcohol concentrations in a DWI trial involve measurement. The weight of a controlled substance, and its identity, involves measurement. Other examples may include DNA and radar speed detection. Essentially, a forensic science implicating physics, chemistry, toxicology, engineering, psychology, or medicine may also implicate the science of measurement.
Regardless of where a lawyer practices, one thing will always remain the same—time is money. Abraham Lincoln said it best when stating, “a lawyer’s time and advice is his stock and trade.” When a client seeks out an attorney to represent him or her, the client is essentially paying for two things—the lawyer’s time and knowledge. More importantly, as most lawyers unfortunately know, when the case is over and the client has not fully paid, you have two chances of being paid—SLIM TO NONE—regardless of how much time and knowledge you put into it.
Special thanks to our course directors, Jason Cassel and Audrey Moorehead, for the TCDLA Cross-Examination seminar and to course directors Kerri Anderson-Donica, Heather Barbieri, and Mark Bennett for the Voir Dire CLE held in Dallas in September. Thanks to their help we had 50 attendees for Cross-Examination and 63 attendees for Voir Dire.
Although the temperatures belie it now, fall is upon us. With it, we will see the end of an intense and unpredictable summer of politics and the start of the holiday season. A holiday season in an even-numbered year, means that a legislative session is right around the corner!
Safe Weaving Is No Basis for a Stop
Those familiar with criminal defense in the state of Texas have likely encountered the issue of weaving within the lane as a basis for a police stop.
Q: Hey, are you really a lawyer? Can I ask you a couple of questions?
How many times have we been approached by someone with those questions? Is this person now a client or just a minor irritation? Do we have ethical obligations in that situation? What are they?
Kid cases—whether they be allegations of physical or sexual abuse—are the hardest cases to defend. Jurors, understandably, come in with an inherent prejudice against our client and wanting to save the child. It is an uphill battle from the start.
On July 12, 2016, United States District Judge William H. Pauley III, of the Southern District of New York, granted the defendant’s motion to suppress the narcotics and drug paraphernalia recovered by law enforcement agents in connection with a search of his apartment. Judge Pauley held that (1) the warrantless use of a cell-site simulator to locate the defendant’s apartment as the place of use for the target cell phone, was an unreasonable search; (2) the attenuation doctrine was inapplicable; and, (3) the third-party doctrine was also inapplicable [emphasis added].
Successfully summoning an out-of-state witness to testify in Texas is a chore. Texas Code of Criminal Procedure, Article 24.28, is entitled Uniform Act to Secure Attendance of Witnesses from Without State. Section 4 provides our authority to subpoena a witness from another state. The process is error-prone and rarely guaranteed. Nonetheless, your out-of-state witness may be the lynchpin of your case. To this end, some insight into the logistical pitfalls may save you hours of work and millimeters of stomach lining.
It’s that time of year again—Fall Ball, postseason baseball, the Fall Classic. I’ve always loved baseball. I still love to play catch and burnout and have a whole baseball collection. My brothers and I grew up in a baseball family. Our dad introduced us to baseball early on. He coached and sponsored our little league teams, and when it was clear we loved baseball as much as he did, he built us our own field of dreams . . . complete with a real cornfield in the outfield and wooden bleachers.
The TCDLA membership met on June 18, 2016, in San Antonio for the 45th Annual Membership Meeting. The following motions were made.
MOTION: Approve Minutes—February 13, 2016
Motion to adopt the minutes from the Board Meeting on February 13, 2016, in New Orleans, Louisiana, made by Nicole DeBorde, seconded by David Ryan—motion carries.
MOTION: Board Electronic Votes—Motion to approve electronic votes for recipients of:
DNA mixture issues have been at the forefront during the first half of 2016. An update is in order, but first some background. While some in the forensic community have raised this issue for years, it got widespread attention in May 2015, when the FBI notified labs across the country of discrepancies discovered in the interpretation of DNA mixture cases—those in which multiple contributors may be present.
23 | Defending Child Injury Cases - By Sarah Roland
30 | Ethical Problems with Giving Free Legal Advice - By Janet Burnett
34 | The Leming Opinion Is Not the Silver Bullet Prosecutors Claim - By Lanny Begley
37 | 4th Amendment Musings: Search & Seizure: So, What’s Going On? - By Kelly Pace