Under two US Supreme Court rulings,2 where a state provides for appellate review of criminal convictions, an indigent appellant enjoys a constitutional right to appointment of counsel for an initial appeal of right, but
The event has occurred on thousands of occasions. Terry Trooper sees Danny Defendant driving on his highway. Something catches Terry’s attention that causes him to believe Danny has committed or is committing a criminal offense. Terry initiates a traffic stop that leads to a conversation with Danny, a seizure of something, and a warrantless arrest. The issue for the trial court or the appellate court is always the same: Did Terry have probable cause or a reasonable suspicion that Danny had committed or was committing a criminal offense?
Our money is rarely a topic of conversation at the courthouse. We are often stoked to talk about the law . . . always primed to share details of our latest victory or penetrating cross-examination. But what about money? When our law practice closes its doors for the last time, what will we have to show for our decades of sacrifice? Hopefully, we’ll have some degree of financial freedom. But the statistics are dismal. Americans do not save enough.
Midnight special is a traditional folk song thought to have originated among prisoners in the American South (www.youtube.com/watch?v=5TXfcsFhc7A). The title comes from the passenger train “Midnight Special” and is performed from the viewpoint of the prisoners. Lyrics first appeared in print in 1905.
As I write this column, my husband and I are preparing to bring our second child—a boy—into this world. We have decided to name him Samuel George Smith. (Yes, I am one of those women who didn’t change my last name.) George, after my late dad, George Roland. My dad was a fierce defender of the Constitution—the best. I now know and appreciate the blood, sweat, and tears that he invested in his work and its meaning. The soon-to-be birth of my son has me thinking a lot about legacies—the ones we leave behind, the ones we create, the ones we pass on.
Please join me in welcoming Andrea Keilen, our new General Counsel for TCDLA. Andrea will also be our Lobbyist, working with our lobby team in the upcoming Texas Legislative session. Andrea brings a wealth of experience to TCDLA. We are very fortunate to have her on board. She can be reached at the home office, 512-478-2514.
Special thanks to course director Rick Wardroup for our Capital/Mental Health seminar held in Houston in February. Thanks to him and our speakers we had 108 attendees.
The world of defending a criminal case used to be simpler. As I look around my office at lawyers who have practiced in excess of 50 years, I realize how much the landscape has changed in just a generation or two. Nowhere is this more apparent than in the increasing number of civil proceedings that accompany even a misdemeanor criminal case today. What is relatively new as well is the new landscape on college campuses of Title IX requirements in cases where sexual misconduct is alleged.
21 | The 40th Annual Texas Criminal Trial College
25 | Between a Reversal at the Court of Appeals and Discretionary Review: What Are Appointed Counsel’s Duties? - By John Bennett
29 | Successfully Suppressing a Search Warrant in Federal Court - By Mary Beth Harrell
The first felony jury trial I participated in was what was then called a robbery by assault with a firearm. I had been licensed to practice for almost exactly one year, and had gone to Judge Archie Brown, one of two felony judges in the county at that time, and asked to be appointed to some cases that were going to trial to gain experience.
Michael Morton is probably the most well-known example, at least in Texas, of an innocent person spending decades in prison for a crime he did not commit. As we all know, in that case, there was a significant amount of prosecutorial misconduct—i.e., hiding favorable evidence—that led to the wrongful conviction.
In this brief article, I am going to focus quickly upon some fundamentals as may appertain to the issue of raising the issue of competency in criminal matters, interweaving special problems, or choke points in the process, of which there are a finite number, but at least ten.
On January 29, 2016, a panel of the United States Court of Appeals for the Second Circuit held that as matter of first impression, where officers have summoned a defendant to the door of his house, they may not effect a warrantless “across the threshold” arrest in the absence of exigent circumstances; and, that a warrantless “across the threshold” arrest of a defendant, who was summoned to door of his home for such purpose, violated the Fourth Amendment. United States v. Allen, ___ F.3d ___, 2016 WL 362570 (2016).
In Brazos County the Department of Public Safety has been using sleight-of-hand to prove up blood test results in ALR failure cases. Their conjuring attempts to correct an evidentiary deficiency in their blood test proof. Specifically, the Department tries to argue these blood test failures resulted from the suspect’s “express consent” to provide a blood sample, rather than “implied consent” under Chapter 724 of the Texas Transportation Code.
Acknowledgments to lawyers and law students who shall remain nameless . . .
Tiptoe through the window
By the window, that is where I’ll be
Come tiptoe through the tulips with me...
It is quite a humbling honor and responsibility to serve as your new editor. I am thankful to the leadership for allowing me this opportunity to continue to serve TCDLA in a new way. Many thanks to Michael Gross for his tireless service to TCDLA as editor for the past 2½ years and guidance to me as I step into this new role. His are indeed large shoes to fill. It also cannot be said often enough how fortunate we are to have the staff that we do working for us.
Special thanks to Dan Hurley (Lubbock), Stan Schneider (Houston), and John Convery (San Antonio), course directors for our TCDLA Federal Law CLE held in New Orleans in February. During the event, Past President Scrappy Holmes (Longview) was crowned TCDLA Dean Emeritus, accompanied by a New Orleans Jazz Band. Thanks to everyone’s help we had 68 attendees and a fun time in New Orleans.
I recently read Malcolm Gladwell’s latest book—David and Goliath. Most of us are familiar with the Old Testament story of the shepherd who slays the Philistine giant who was physically imposing, coated with armor and equipped with the best weapons of the time. How did David win? Simple—David was prepared for a different fight than Goliath. Goliath expected hand-to-hand combat while David came with a stone and a sling.