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.
As the father of a young family, in the early years of my practice, I did not have a lot of time to devote to pro bono work. A sole practitioner with relatively short roots in the community (five years, when I began my practice, nearly four of which were spent in night law school) has to keep the nose to the grindstone and shoulder to the wheel.
A prosecutor who is overly aggressive can introduce error into the trial of a case. A defense lawyer who sits on his hands and does not object can limit the appellate court’s consideration of an issue to a plain error standard. A trial judge who considers testimony improperly adduced by an aggressive prosecutor in determining what sentence to impose can make the case difficult for an appellate court to affirm. That is the conduct of the district judge and the two lawyers in United States v. Moreno, ___F.3d___, 2016 WL 53796 (3rd Cir. 2016).
I’ve been remiss. Like my fellow defense attorneys, I habitually keep my head buried in court appearances, case law and statutes, cross-examination preparation, closing arguments, and customer service. I’ve been remiss because the daily grind has so easily diverted me from reflecting on a deeper meaning in this work. Namely, safeguarding the great American experiment. We protect individual liberty and freedom. Values our founding fathers determined were most vital to a free society.
If Wild Bill Hickok were walking down the streets of Houston or Abilene or any other place in Texas with his guns today, he would probably be approached by the police and arrested. Wild Bill has a concealed handgun license, but Wild Bill doesn’t carry his pistols in a holster; he carries them stuck in a sash wrapped around his waist. Too bad he didn’t understand the nuances of the new open carry law. But then, who does?
The TCDLA Board met on December 5, 2015, in Austin. The following motions were made and action taken:
MOTION: September 12, 2015, Minutes
Motion to adopt the minutes from the TCDLA Board Meeting in Dallas on September 12, 2015, made by Mark Snodgrass, seconded by Susan Anderson—motion carries.
As a law student, I had a front row seat at the Michael Morton trial. I watched as two of my mentors and then employers—Bill Allison and Bill White—fought during the Morton murder trial in the late 1980s. I was a green law clerk, watching with my eyes wide open. A constant frustration throughout the case was the deep suspicion that evidence was being withheld, but there was no way to know for sure. Never was this more apparent than when the state declined to call the chief investigative deputy (Don Woods) and instead called legendary Williamson County Sheriff Jim Boutwell.
22 | The Michael Morton Act’s Undiscovered Country - By Keith Hampton
28 | The Fourth Amendment and Traffic Stops: A Completely Fictitious, Tongue-in-Cheek Guide to Being a Successful Drug Courier - By Todd Duncan
36 | Do Not Mess With Papa’s Daughter - By Judge Wayne Patrick Priest