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"The Defender" is a publication of the Harris County Criminal Lawyers Association, a local bar association serving criminal defense lawyers and their clients while educating the public and shaping the criminal justice system.
"The Defender" is a publication of the Harris County Criminal Lawyers Association, a local bar association serving criminal defense lawyers and their clients while educating the public and shaping the criminal justice system.
"The Defender" is a publication of the Harris County Criminal Lawyers Association, a local bar association serving criminal defense lawyers and their clients while educating the public and shaping the criminal justice system.
5:: AWordfrom our President by JoAnne Musick 6:: Winning Warriors 9:: HCClANews Roundup 11 :: OWl Blood Defense PartI: Initial ClientContactand Discovery by Kelly W Case 15 :: Have You Heard? You Maybe EligibleforReimbursementbytheCriminalJustice ActforExpenses Incurredin DefendingMalpracticeActions. by Yolanda Coroy 16 :: Your Honor, MayITake the Dog on Voir Dire? EvidentiaryandConstitutional Objectionsto Dog-ScentLineups by Barbara Drumheller 21 :: Recouping Costs ofExecuting aBail Bond When theMotionto Surrenderthe Principal is NotBasedon ReasonableCause by John Burns 22 :: Variances Are Not Departures byAnother Name by Marjorie A. Meyers 24:: You, Too, Can Win aParole Revocation Hearing (and LookGood Doing It) by Sunshine L. Swallers 26 :: HCClAAddresses NewOWl Diversion Program ALettertotheJudges& PressRelease by JoAnne Musick 28:: HCClACo-Sponsors CommunityService Project Teen DatingViolenceAwareness by Wendy Miller 29 :: The Death ofOral Argument by Patrick F McCann 31 :: Investigative Corner: Digital DNA by Jim Willis THE DEFENDER CD AD RATES FULL PAGE [INSIDE] :: $700/ISSUE :: $2,520;YEAR INSIDE FRONT COVER :: $BOO/ISSUE :: $2,BBO;YEAR INSIDE BACK COVER :: $750/ISSUE :: $2)OO;YEAR BACK COVER :: $BOO/ISSUE :: $2,BBO;YEAR 2/3 PAGE :: $600/ISSUE :: $2,160;YEAR 1/2 PAGE:: $500/ISSUE:: $1,BOO;YEAR 1/3 PAGE:: $400/ISSUE:: $1 ,440;YEAR 1/4 PAGE:: $250/ISSUE :: $900;YEAR BUSINESS CARD SIZE:: $125/ISSUE :: $450;YEAR Distribution 1000 copies per issue. For articles and other editorial contributions - contact Kathryn Kase at 713-222-7788 or to place an ad contact Earl Musick at 832-448-1148 or earl@musicklawoffice.com. 0.... stakeholder[steyk-hohl..der] awordfromour agroupthathasaninvestment, share,orinterestinsomething, as abusinessorindustry Clearlythedefensebaris astakeholderinthe criminaljustice system;wehavean investmentandinterestthatwillnotbe ignored. Yetthecourtsanddistrictattorneycontinueto denyfull participationofallstakeholdersas theyseekto excludeourbar fromparticipation. Read theTheJusticeManagementInstitute's (1MI) preliminaryreportonourHarrisCountycriminaljustice systemandyouwillseethateventheyrecognizeus as necessary stakeholdersandfurtherrecommendthatweholdaseatona criminaljusticecouncil. OnJuly 14,2009,ourelectedofficialsvoted"inaccordwiththe reportofrecommendationsbythe1MI"and createdthe Harris CountyCriminalJusticeCoordinatingCouncilandthe Officeof CriminalJusticeCoordination;however, they failedto includeall stakeholdersastheyexcludedthedefensebarfrom the council. TheJMI studyclearlystatesthecouncilshouldinclude thecourts, theDistrictClerk'soffice, theDistrictAttorney'Soffice, thedefense bar, the Sheriffsoffice,andtheCountyAttorney'soffice. Perhapsourelectedofficialswouldlovenothingmorethan businessas usual, ignoringthedefensebar. Perhapstheydidn't believethevoterswhentheysaid,''NoMoreJails." Perhapsthey will find themselvesoutofofficein thefuture. Onethingis clear: taxpayersaretiredofbusinessas usual. No longerdoesa"tough oncrime"campaigncarrythedayto re-election. Thevotersand taxpayerswantchange. And,inorderto effectchange,business asusual mustchange. Thedefensebarcanno longerbeignored whenitcomestodevelopingnew ideasandnewsolutions. Asa legitimatestakeholder,wemustparticipateandbeheard. Yet insteadwehear,"Iputonmydefenseattorneyhatwhen lookingatthis issue"or"whenIwasadefenselawyer...". These statementsareakinto mesaying,"WhenIwasaprosecutor... ". It justdoesn'tworkthatway. Onecannotstepoutoftheirown roleand playanother. That'saconflictofinterest. Asmuchas onestakeholdermaywantto thinktheycanplaytworolesatthe sametime, it isvirtuallyimpossibleforanyprosecutororjudge to simplyputon their"defenseattorneyhat"andcomeupwith thedefenseperspective. It'sgreatto haveinsightbasedonpast experiences,butuntil issuesareopenlyandhonestlydiscussed withall stakeholders,thedecisionsmadeareshort-sided. TakeforexampletherecentlycreatedDWIdiversionprogram. Twostakeholders,theD.A. andthejudiciary,decidedhow caseswouldbehandledwhenenteringtheprogramand how punishmenthearingswouldproceed. Onemajorproblem: it's deferredadjudication(oratleastpotentially). UndertheD.A.'s newprogram,apleais enteredandajuryis waived,community serviceis undertaken,andintheeventofdefaultpunishmentis
JaAnM rf!U6ick assessedbythecourtwithoutajury. . .soundslikedeferredtome. Theproblemis thepointbetweenpleaandadjudication,i.e. the deferral,whichis notpermissibleinDWIcases. Callitanything youlike,butifitlooks likeaduck,walks likeaduck,andquacks likeaduck,then itmustbeaduck(DeferredUnderCursed Karma). Withthelegislatureclearlystatingdeferredisnotanoptionin DWIcasesandthelocalD.A.losingordismissinga majority oftheDWIcasessetfortrial,let'scomeupwitha wayto circumventthelawandotTerdeferredanyway! Forifwe offeredatrue diversion, and then thedefendantfailed to meethis termsofdiversion,we mighthaveto try thecaseand loseanyway. Now,don'tgetmewrong,diversioncould beawonderful tool for somedefendantsifitreallywereadiversion. But,diversion, in itstruestsense,contemplateseitherneverenteringthe court system(i.e. pre-charging)orremovalfrom thecourtproceeding (i.e. pre-trial)withthepossibilityofreinstatingtheprosecutionor proceedingsshouldthediversionfail. Atruediversiondoesnot requireapleaofguilty, awaiveroftrial, areduced burdenofproof upon theState,norapre-determinedand agreeduponsentence. Underthecurrentprogram,wedon'treinstatetheproceedings and continuethecase; wemovestraighttopunishmentwith the defendant havingwaivedall his rights so the Statecannotloseat trial. Iknow...theysayit'snotcoercivebecauseyoucantakeitorleave it, andyoucantumitdown,optingfor atrialorpleawithoutan agreedrecommendation. Butwhathappens3yearsfrom now when thefirstcourtrulesexpunctionis notavailablebecause this reallywasadeferred? Howmanyhundredsorthousandsof defendantswouldhavealreadytakenthediversionbelievingit wouldbeexpunged; onlyto find outit wasn'tsuchagreatbargain afterall? Thisis butoneexampleas to whyallstakeholdersshould participatein thediscussion;vettingthe issueleadstothebest possibleresults. Includingallstakeholdershelpsthinkoutside ofthebox. Withjailovercrowding,docketmanagement,and indigentdefensebeingkeyissuesontheforefrontofHarris County'scriminaljusticesystemproblems,nowisthetimefor all stakeholdersto cometogetherandfind solutions. Now is the timeforthedefensebar,asthelargeststakeholderrepresenting thelargestsegmentofthesystem,toparticipate. Whywouldn't theD.A. wantparticipation? Whywouldn'tthecourts? Perhaps theyreallydothinkbusinessas usual willwinelections. Perhaps theydidn'tlistentothevoterslastyear! THE DEFENDER CD The client was indicted for Murder as a habitual felon, but TERRY GAISER obtained a complete and total acquittal in the 230th District Court after mortally wounding the State's key witness on cross. ........................................ Proving conclusively that he was right when he said the case should not have been tried, JONATHAN GLUCKMAN won a resounding Not Guilty verdict on behalf of a client charged with Murder in the 232nd District Court. ........................................ We interrupt these tales of legal glory with a harrowing story with a happy ending brought about by a defense lawyer. ROBB FICKMAN was returning from Lake Charles on 1-10 when he saw a car upside down on an exit ramp. Stopping, Robb was told by a frantic man that a girl was caught in the wreckage. Robb found her alive, but suspended upside down in the seatbelt webbing. She also was hysterical. Robb calmed her, slid into the wreckage on his back and undid the seatbelt, allowing her to fall into his arms. He later banded her off to paramedics - but not before admonishing her boyfriend that the next time he hears someone bad-mouthing lawyers, he should tell them it was a lawyer who got his girlfriend out of the wreck. ........................................ Taking Winston Churchill's famous admonition to "never give up" to heart, RICHARD KUNIANSKY won a Rule 29 acquittal on all charges from U.S. District Judge Siill Lake III after (you read that right: after) the jury had convicted Richard's client of laundering $1. 7 million. And, Robb Fickman reports, Judge Lake entered fmdings that greatly diminish the government's chance of prevailing on appeal. What makes the win even more amazing is that Richard's client was the only one of 15 original defendants in the case to be acquitted. The rest took pleas. CD THE DEFEIIDER KATHRYN KASE and JARED TYLER convinced the Court of Criminal Appeals to grant a new punishment trial for a Capital Murder client out of Bexar County. Jim Marcus had assisted at the hearing on the state writ of habeas corpus and Mia de Saint Victor took the lead in drafting the post-hearing briefing that resulted in the trial judge's recommendation that a new punishment trial be granted. ........................................ STEVE SHELLIST won a No Bill for a Continental Airlines mechanic charged with shooting an unarmed 16-year-old. As Steve related in his grand jury packet, the mechanic saw three shadowy figures climbing the fence into his widowed neighbor's backyard and believed them to be wanted for shooting up a neighborhood party earlier in the day. When the three figures refused to stop climbing the fence, the mechanic fired, hitting one in the ankle. ........................................ CYNTHIA HENLEY and Second Chair Program attorney MATT DARBY obtained a dismissal of sexual abuse charges after first obtaining a hung jury in a hard-fought trial. Cynthia credits investigator Audrey Rife for getting the complaining witness on tape telling a vastly different story than she told to investigators, and Matt for his hard work. ........................................ ROBB FICKMAN and his Second Chair, ROB TUTHILL, won dismissal of a Possession of Marijuana charge on the day the case set for trial. The client was a social worker charged with possession after HISD cops claimed to find a .01 ounce bag of weed in his belongings. Robb said, "Small case; big for client." ........................................ Not one to waste time, PATTY SEDITA got a I5-minute Not Guilty on a kidnapping case in the I82nd District Court. We hear her excellent close compelled the jury's quick decision. ........................................ Love - and dedicated lawyering - can conquer all. The parolee-client was up for revocation because he tested positive for cocaine. Unknown to him, his much-younger wife had slipped him a "love potion" purchased from a woman in a beauty shop. At the parole revocation hearing, SUNSIDNE SWALLERS put the wife on to testify that they couldn't afford Viagra and that she had given the unknown substance to her husband without his knowledge. The result: continued supervision. ........................................ The former operators of the Hart Galleries - who received 17-year prison terms after a pre-sentence investigation - will get a new trial due to ROBERT SCARDINO. First, Robert got the original trial judge (Randy Roll) recused. Then, he won the new trial after pleading a variety of grounds, including that the grand jury foreman and Judge RoB had had contlicts of interest. ....................................... . MATT SKlLLERN secured a Not Guilty from ajury in Montgomery County Court-at-Law No.4 in a DWI case. The acquittal came after Matt showed the arresting officer to be very evaSIve. Effectively negotiating the transition from prosecutor to defense lawyer, MURRAY NEWMAN won a motion to adjudicate on behalf of a client who was on deferred for aggravated robbery and picked up a new aggravated robbery charge. At the hearing, Murray's cross-examination revealed the complainant's story was confabulated and visiting Judge Don Strickland found the new allegations to be "not true." The State wisely dismissed the charges thereafter. ........................................ The officer claimed he saw the client make a furtive gesture, which led to a search, which led to the discovery of a crack pipe hidden in foam rubber underneath the dashboard and a Possession of a Controlled Substance charge. But DANNY EASTERLING won a Motion for an Instructed Verdict after convincing visiting Judge Lisa Burkhalter that the search was pretextural. Which was of great relief to the client, who had six felony priors for Possession of a Controlled Substance, was looking at 2 to 10 years, and had turned down a plea offer of2 years. ........................................ Citing current federal case law (instead of that outdated stuff cited by the State), DANALYNN RECER convinced the Court of Criminal Appeals to dismiss the State's petition for discretionary review in a non-death Capital Murder case. The intermediate appellate court had wanted (on then-defense lawyer Shawna Reagin's brief) to remand to the trial court for further proceedings in light of Batson v. Kentucky, 476 U.S. 79 (1986). And, now, those proceedings will proceed. ........................................ Saving the client from a sentence between 25 years and life, DALE PASCHALL won an acquittal in a sex case in Liberty County - and from ajury who deliberated only 20 minutes. ........................................ DANNY EASTERLING and KELLY CASE persuaded the Galveston County District Attorney to offer a L WOP plea in a case where the capital murder had been caught on videotape. With the assistance of mitigation specialist Shelly Schade, Danny and Kelly CHERYL IRVIN won suppression from Judge Marc Carter in the 228th District Court on a Possession of Marijuana case. And in so doing, Equator Turner reports, Cheryl made the State extremely unhappy. ........................................ Legal beagles LISA BENGE and GILBERT GARCIA won suppression in the 221 st District Court in a drug case based on the "work" of a canine cop in Montgomery County. Relying partially on work by Mary Samaan and Sarah Wood in a prior case, Lisa and Gilbert showed the search warrant to be deficient. Wisely, the State dismissed the case and decided not to appeal. This was Lisa's third victory against the Special Investigation Unit of Montgomery County ......................... ............... The moral to this next set of victories is: if you want to win your case, enroll in the Second Chair Program. GRANT SCHEINER and Second Chair Program attorney PAULA SILVA won a verdict of Not Gu iItyby Reason of Insani ty in an "Attempt to Disann a Peace Officer" case in the l76th District Court. Grant reports that Paula "did a phenomenal job the entire way." ........................................ CYNTHIA HENLEY won two grand jury no-bills in one month's time. The second was on behalf of a beleaguered client was charged with felony sexual assault by his girlfriend after a sexual mishap. ........................................ TYLER FLOOD won a DWI case that kept everyone guessing. First, Judge Ross granted the motion to suppress the breath test result due to extrapolation issues, then Judge Ross reversed his decision, and then Tyler persuaded Judge Ross to grant suppression again. And then, in the middle of trial, the prosecution finally came to its senses and dismissed the ........................................ case. TOM MORAN reports that "a wise Latina judge" (the Hon. Vanessa Velasquez) found probable cause lacking and granted a pretrial motion to suppress in his Criminal Possession of a persuaded the client to accept. Controlled Substance case, thus causing the State to dismiss its prosecution. Winning Warriors The client admitted to drinking multiple vodka tonics and having come directly from a bar, and leaned against the wall during interrogation at the police station. And it didn't help that her husband called the cop a "#&@! rookie." Still, NATHANIEL TARLOW got the cops to agree that the client had not lost her mental or physical faculties and then obtained a directed verdict in Harris County Criminal-Court-of-Law No.1 O. ............................ .. ... ...... . assisted by EQUATOR TURNER, successfully obtaIned a mlstnal for an AssaultlFamily Violence client in Harris Cou.nty Criminal Court-.at-Law No.1 after convincing the judge that the JUry had been left with false impressions due to the State's use of what should have been inadmissible evidence. ...... ... ... ................ .......... . . Three Indecency with a Child charges were dismissed in Brazoria County because AMANDA DOWNING proved to the court that her client's speedy trial rights had been violated. Earl Musick reports that the m?tion ,,:as "extremely well prepared" and was based in part on an earlier motton filed by Sean BuckJey in a murder case. ...................................... . . The client was passed out behind the wheel, with keys in the ignition and the engine running. And did we mention that the client also the field sobriety tests and later turned down a plea to Reckless JED SILVERMAN pulled out a ''Not Guilty" illa DWI case 10 Fort Bend County Criminal Court-at-Law No.2. .... . . . .. ... . . .. ........... .... . ... . . . ... A wife initially detained for interfering with her husband's arrest and later charged with Unlawful Carrying of a Weapon was free to go after DAN GERSON won a motion to suppress and a directed verdict of Not Guilty in Harris County Criminal Court-at-Law No.9. In th.e face of a judicial demand that his client waive her right to a contInuance and to pretrial diversion, RICK OLIVER obtained a "Not Guilty" in Harris County Criminal Court-at-Law No.9 after, Doug Murphy reports, he "tore the cop up on cross and whipped them good." Server, Worl<station.pc. LaptoP. Sales& Service Maintenance &ServiceContracts Networl<Configuration DataProtection&Backup SurveillanceovertheInternet Lester"Les"Lavin Tel:713-594-5136 Owner e-mail:mr1ester1@hotmail.com www.bayoucityconnected.com CD THE DEFENDER The client, who had no priors whatsoever, was charged with two cases of Indecency with a Child and the proof included one videotaped confession, but DORIAN COTLAR engaged in a contentious, week-long trial in the 122nd District Court and ultimately secured an acquittal on one charge and a hung jury on the other. Dorian credits the efforts of his associate Andrew Herreth, and law clerks Alexis Krafft and Justin Harris: ....... .......... ....... .......... ..... . Proving that a diligent investigation yields good results, JAMES ALSTON won a dismissal in a DWIlbreath-test-refusal case after showing that the arresting officer advised the client on the ride to the station not to take the test. James reviewed the refusal tape and, sure enough, there was the cop saying, "I told you that I tell my family members not to take the tests if they are buzzed." ..... .................................. . On her solo writ of habeas corpus - and one she took on pro bono publico - CARMEN ROE obtained relief in the 351st District Court on behalf of a client with an illegal sentence. ..... .......................... .... .... . It was, as David Suhler described it, ROB TUTHILL's "first real-w?rld trial" and it also was a non-sting prostitution case, which Rob tned to a hung jury. ....... ..... ....... ... ................ . . There were bad facts, a week-long trial and a charge of Aggravated Assault with a Deadly Weapon. The State sought 35 years, but CLAIRE CONNORS won 8 years of probation for her client. ...... ................................. . jury had been seated and the client faced between 25 years and lIfe, but ELIJUE DOZIER won suppression from Judge Ruben Guerrero in a Possession of Controlled Substance case and the State dismissed. ... ..................................... CHRISTOPHER CARLSON and JOHN FLOYD obtained a 30-minute "Not Guilty" against Austin County District Attorney Travis Koene in a case where deadly conduct was alleged. ........................................ TOM ZAKES convinced a Friendswood prosecutor to dismiss a no-driver's-license and no-insurance case for lack of probable cause after Tom showed that the cop pulled the client over because he was going around the neighborhood asking people if he could cut their grass. .... .............................. ...... Proving to be an incredibly quick study, BILLY SKINNER got the file fr0t? Jed Silverman and, 30 minutes later, argued his first ALR appealm Harris County Criminal Court-at-Law No.2 - and won a remand. ........................................ The State Bar of Texas honored WENDY MILLER with the Judge Sam Williams Leadership Award at its Annual Meeting in June. Wendy was recognized for improving the public's understanding of the legal system - which she perfonned on of HCCLA and the Houston Young Lawyers AssocIatIOn. The State Bar advises that the award presented to one lawyer annually exemplifying outstandmg leadership and service to the State Bar of Texas and their local bar associations to best serve the legal profession and the public." Which we think is an apt description of Wendy's volunteer work. HCCLA BOWlS OVEB THE COMPETITIOIJ FOB BIG BBOTHERS BIG SISTERS OF GBEATEB HOUSTOIJ by Wendy Miller Team HCClA won the 2009 Houston Lawyers' Bowl at the Bowl for Kids' Sake lundraiser on June 6at Palace Lanes - and raised $900 for Big Brothers Big Sisters of Greater Houston. The win marked the first time that HCClA finished first among lawyer teams at the annual event. It was the Association's third year as aparticipant in the Bowl for Kids' Sake event. Team HeClA included Steve Halpert, Darrell Jordan, Sunshine Swaliers, and Nicole Caldwell. JoAnne Musick and Monica Hwang served as supporters and fans, and I served as acheerleader. Bowl for Kids' Sake is one of the biggest annual fundraisers for Big Brothers Big Sisters of Greater Houston. The non-profit agency matches adult volunteer mentors with local children to give them ahelping hand growing up. Money raised by HCClA supports Big Brothers Big Sisters' Amachi Texas Mentor Program for local at-risk children with one or more incarcerated parents or guardians. HCClA has been an active supporter of the Amachi Texas Mentor Program since 2007 and Association members also participate as adult mentor volunteers at the events. Send $100 Payable to: HCCLA PO Box 924523 Houston, TX 77292-4523 & Receive 10 Advance Admission Tickets! Contact Sfe-phevt f o u ~ ~ t o v t for more information! 713.802.1900 or tstonel@swbell.net THE DEFENDER CD BURNS B I L ~ BONDS Shaun,John, Shannon and Shelby License# 74346 Familyowned andoperated since 1971 Bilingualstaffwith over100yearsof expenence .:. We advocateapaid infullattorneyis adefendant'sbestdefense .:. Non-ArrestBonds- weaccompanyyourclienttothejailorfromthecourtroom 609 HoustonAvenue 713.227.3400 Houston,Texas 77007 burnsbailbonds@yahoo.com Part I, Initial Oient Contact and Discovery by Kelly w. Before y{)U go any further, o must be prepared to defend a DWI as based on a blood-draw At minimum, your library should contain: Phlebotomy Essentials, Fourth Edition by Ruth E. McCall and Cathee M. Tankersley, published by Walters Kluwer Publishing in 2008, ISBN 978-0-7817-6138-3. Procedures for the Collection of Diagnostic Blood Specimens by Venipuncture; Approved Standard - Sixth Edition H3-A6, Vol. 27 No. 26 (replaces H3-A5,'Vol. 23 No. 32), published by Clinical and Laboratory Standards Institute in 2007, ISBN 1-56238-650-6. Blood Alcohol Testing in the Clinical Laboratory; Approved Guideline, TIDM6-A, Vol. 17 No. 14 Replaces TIDM6-P, Vol. 8 No. 10, published by Clinical and Laboratory Standards Institute in 1997, ISBN 1-56238-333-7. Garriott's Medicolegal Aspects of Alcohol, Fifth Edition by James C. Garriott and Erik H. Aquayo, published by Lawyer's & Judges Publishing Company, Inc., in Nov. 2008, ISBN-13 9781933264585. Drunk Driving Defense, Sixth Edition by Lawrence Taylo't' and Steve Oberman, published by Aspen Publ hers, ISBN 9780735554290. Additionally, you should have your jail's standard operating procedures for blood-born pathogen contamination. 1 THE BEFO.. Part I, Initial Oient Contact and Discovery 1] In 2004, Montgomery County was one of Texas' first counties to have a procedure in place for forced blood draws. That year, the county actually had a judge in the jail during the July 4th holiday to sign warrants authorizing the forced taking of blood from citizens suspected ofDWI. Since then, the county has set up a system in which the "on-call" judge is faxed an affidavit, and the warrant is faxed back to the jail and authorizes, according to prosecutors, the forced blood-draw from drivers suspected of intoxication. 2 Last year, DPS labs across Texas hired more than 20 new analysts to handle the blood testing that has been submitted on these "blood DWI" cases. DPS used to take almost a year to get the results from a blood test, but has improved its turnaround time to less than a month in alcohol-detection cases. Cases involving drugs are exclusively handled by three analysts out of the DPS-Austin lab and still take considerable time. At the same time, the CMI, manufacturer of the Intoxilyzer 5000, has come under serious fire in several states for failing to comply with court orders to provide its source code, and also for inaccurate and unreliable results. Fines in the millions of dollars are pending and continuing to accrue against CMI in Florida. In Texas, we have very little discovery regarding the machine and its processing of data. In this regard, our hands have been tied by the Texas Legislature. Unless there is a glaring error, your client will be prosecuted and the results of the breath test will be admitted. When I first started in the District Attorney's office in Galveston County in 1991, we reduced the charges when breath tests were below .15 because we all knew the machine yielded inexact resu Its. It still does. The Intoxilyzer 5000 likely wilt be obsolete in three to five years. By that time, every county in Texas will use forced blood-draws in the prosecution of DWI cases. Interestingly, this coincides with the Mayan calendar and its prediction that the world would end on December 21, 2012. Could those ancients have been on to something? why will the machine be obsolete in 3-5 years? Perception. Think about the first time you ever dealt with a blood case or a client called about hiring you on a blood DWI case. Your fIrst thought may have been like mine: "Oh boy, they really got this guy. Blood is a lock. No way to beat it." The basic science behind the Intoxilyzer and the assumptions it makes are flawed. We are learning just how flawed thanks to our brother and sister defense attorneys in Florida, Minnesota and Arizona, where the source code Issue rages on. This paper is designed as a primer for the defense of a DWI case involving a forced blood-draw. It will not teach you how to defend these cases, but it will give you the basics that you must cover in every case involving a forced blood-draw. As always, I am available to assist any defense attorney in need of advice due to the overwhelming amount of infonnation that these cases generate. Hopefully, at the conclusion of the series of articles on this subject, you will cheer when a client calls you with a blood case because you know you will be able to engage in meaningful discovery and have the chance to successfully defend your client. I have never had a client from the jail, nor have I been able to obtain an independent sample for testing blood within a reasonable time of my client's arrest. Even so, I make sure that I have a nurse on standby at all times in case we get that call from the jail. You should have someone on standby who can be called upon to quickly meet you at the jail in order to take an independent sample of blood from your client. It's rare that any client is prepared with your name and contact infonnation in advance of their arrest, so you have to be prepared to kick into gear quickly after you receive the call from a prospective client. During your initial phone conversation with all clients, you will need to ask whether this is a blood case. If so, then you must set the appointment with your client as soon as possible. I mean that. You must see the client as soon as you can humanly get there, even if it means working late or rising early. If more than two days have passed, there is a good chance that evidence will be lost that could have been very beneficial to your client. Upon being hired, draft your ALR request and a Motion to Preserve Blood Draw Evidence and Inspection. Fax a copy of the Motion to Preserve to the Captain in charge of the Jail, the Sheriff, and to the Custodian of Records for the Jail for your county. Yes, send it to all of them. Jails have been making video recordings of the execution of the search warrant (that is, the blood-draw), but they will only keep it, at most, for a few weeks. You must make the request to preserve this video and other evidence because the prosecution will not and you will lose the evidence. By doing this, you will be setting up a spoliation argument when, and if, the jail throws your motion in the trash and fails to properly preserve this evidence, denying your client the right to a meaningful cross examination, due process, and thereby making you ineffective in the representation of your client. After your Motion to Preserve has been sent to the jail, try to get the motion set for a hearing and obtain a signed preservation order as soon as possible. Send the jail personnel the signed copy, also. THE DEFENDER At the initial client meeting, have your client execute a HIPAA release. My clients sign a blank one in this is kept in the client's file. This allows me to copy it so that if I need more than one, I do not have to bother the client again for a signature. Explain this to the client in your initial meeting and obtain their consent. Do this whether your client's blood was taken at a hospital, or at the jail. This release should also contain language for all personnel, as well as for physicians, to discuss your client's case with you. This will become important later. Be sure to obtain your client's prescription records from their pharmacy if drugs are alleged as the intoxicant. Help the client to understand that an expert will be needed to successfully defend this case. Be familiar with experts who can assist you in this area, and be able to quote their fees to your client at that first meeting. You want to be absolutely certain that the non-indigent client understands the need to save money for that expert fee so that when and if a trial date looms ahead, you are not delayed by the lack of funds which deny you the tools you need to win. Obviously not all clients can afford you, bail, and their expert. Do what you can to make them understand the importance of having your own expert in this field.] You should advise your clients that their personal physician will probably not want to get involved and will definitely not want to testify in court. Personal physicians don't usually make good witnesses so don't rely on the "My doctor said he would give you an affidavit" as a substitute for a good expert and in light of the fact that it will not be admissible for any purpose. 4 Most medical records are maintained and will be providu 1 to your office by a third-party contractor of the hospital. Ir' important to send the release to the hospital quickly. TI-< contractor may take up to a month to prepare records, so J not delay in getting the HIPAA request out to the healthca'o provider. When a blood draw has been performed at the j,,;' you should request this from the jail medical director within _ few days of the initial client meeting. The ALR request must also contain your requests for discovery for the license hearing. You will request of a copy of the DIe 23, 24, and 25, the criminal complaint, a list of witnesses the State intends to call, any affidavits and reports which the State intends to introduce at the hearing, a full copy of the offense reports and all other documents prepared by the officer with regards to his investigation into this matter. Fax that to Texas DPS Driver Improvement Bureau in Austin, Texas at 512-424-2650. 5 During the initial meeting, ask the client to show you the area of the body where the draw took place and all areas where attempts were made. If any area is bruised, have your investigator or someone on your staff (choose someone who can successfully testify) take digital photographs. Obtain as much detail about the draw from the client as possible. In order to do this, you must be familiar with the procedures, law and cases dealing with cases dealing with search warrant affidavits and search warrants, phlebotomy and the jail's standard operating procedures, including its blood-born pathogen procedures. For example, if your client has had a mastectomy, blood should not be taken from the arm on the same side of the surgery. This is just one example of the many procedures and cautions that must be observed during a blood draw and you will need to know them all. If the draw was done at the jail, visit the place where your client's blood was drawn. Obtain the maintenance log for this area in a Public Information Act request. Blood draws are only supposed to be performed in sanitary conditions. 6 Was the blood drawn in a sanitary area? What type of cleaning agent was used? Is that cleaning agent specific to remove blood borne pathogens? In your Public Information Act request to the jail request, ask for: Cleaning/maintenance logs Plumbing problems Health code violations Repairs to the Building Contaminations or outbreaks of disease or infections In our region, the following individuals are designated Custodian of Records for their respective jails: Montgomery County Jail Harris County Jail Sgt. Mike Weinzettle Lt. John Legg [ Fax: 936-760-5815 [ Fax: 713-755-3647 Galveston County Jail Captain John Pruitt John.Pruitt@co.galveston.tx.us [ Fax: 713-755-6228 Schedule your file review with the prosecutor and copy everything in the file and note the date and specific contents you have reviewed on a separate page. 7 Fax a receipt of items reviewed to the District Attorney's Office so there is no confusion what was and what was not in the file at the time of your review. For some reason, the word "supplement" is not in the prosecutor's lexicon. Obtain a copy of the video of the stop and coordination exercises your client performed. Watch it and have someone in your office transcribe the entire video. Obtain a copy of the lab report during your file review. Draft your blood subpoena using the information contained on the lab report. If controlled substances are alleged to be the cause of impairment, check the lab report against your client's prescriptions. You must know exactly what is alleged to be causing your client ' s impairment. THE DEFENDER Compare the levels of drug alleged in the lab report to your client's prescriptions filled by the pharmacy and those listed by their physician. Verify that these match. Be wary of the client that has multiple prescriptions from numerous doctors being filled at several different pharmacies. If you do not check these and inadvertently disclose this to the ADA prosecuting the case during plea negotiations, your client may wind up being prosecuted for a controlled substance charge in addition to the DWI charge and will not be pleased with your level of representation. I have had a client who had eight different controlled substances in her blood at the same time. All were prescribed and all were of a therapeutic level. But only an expert could explain this to the jury. You should have a preliminary questionnaire prepared for new clients. I am constantly updating mine so that I can remember what to ask new clients and make that initial meeting as fruitful as possible. Don't be surprised by the client who forgets to tell you about root-canal surgery and resulting Vicodin prescription. That client may say, "But it's OK, because I only had two glasses of wine with the Vicodin." Most people don't understand that DWl includes prescription medication and they do not think it is important to tell you about their surgeries and medicatinns. The initial client meeting should cover at least the following: Steps involved in defending a Blood DWl Timeframe involved Client expectations Expert services and fees Possibility of trial (highly likely unless your client decides to plea to DWI) Facts and circumstances surrounding your client' s arrest If the lab report states that your client was on prescription medication, you must verify that your client actually had that prescription and it was current at that time. Next, you will compare the amount of controlled substances in your client's blood to known therapeutic and toxic levels. Review the Physician's Desk Reference 8 for side effects and compare that to the officer's observations regarding horizontal gaze nystagmus and the coordination exercises. [KC6]Many times, the side effects contradict what the officer claims to have seen and observed during the coordination exercises. Many websites can be searched to determine the effects, also. Include this in your preparation for your ALR hearing. Be able to exhaustively question the officer about his observations of your client and look for contradictions in his observations and the reported side effects. @ THE DEFENDER Once you have your initial meeting with your client, you begin the preparation to go to the lab and review the blood. In order to do this, you will need a court order. I forward a copy of the signed order to Mr. Keith Gibson, Lab Director at the DPS Crime Lab at 12230 West Road, Houston TX 77065-4523, fax number 281-517-1395 . Call Mr. Gibson at 281-517-1380 to schedule your appointment. It takes at least an hour to review the blood evidence so be prepared to spend some time at the lab. Keith Gibson and his staff are helpful and polite and they will answer your questions, but they are witnesses for the State and you should independently verify everything they tell you. At the same time, you should request a subpoena for the relevant information you will need from the lab. They will accept service by fax so once you fax it over, expect to get a CD with up to 2,000 pages of material. This is the meat of your case and where your expert will lend a hand. Make a copy of the disk that the lab sends and forward the copy to your expert immediately. Begin your review of the evidence as soon as it is received. Never assume you will not find a problem. I was fortunate enough to find an analyst that had not passed a proficiency exam at the time of testing. Because this is a serious breach of American Society of Crime Lab Directors regulations, I was able to obtain a better plea bargain. Allowing an analyst to continue to conduct tests without passing their proficiency exams can cause the lab to lose its certification with ASCLD and hence, be out of business. By exploiting this problem, I was able to secure a two-year plea on a habitual client with numerous priors for a Second Degree Felony that was enhanced to a First Degree. Because of the lab problems, the State agreed to abandon the enhancement and offer my client 2 years of which he had already served. Review your records request thoroughly. While you are reviewing your records and comparing them to the offense report, pay attention to the dates. Be aware of the time of year and the weather conditions, specifically the temperature, at that time of year. Even in February, in Houston, a blood vial riding around in the back of an officer's "unit" can be exposed to 75-degree heat,9 which in itself can cause an elevated Blood Alcohol content due to non-refrigeration and growth of bacteria.[KC7] Compare the dates of the chain of custody you will receive from the lab to the dates the officer claims to have mailed it. In the next article, I will examine the evidence review that you must conduct at the lab and what you will be looking for during that review. Kelly W Case is an experienced criminal defense lawyer who practices in Galveston, Harris and Montgomery counties. He is scheduled to speak about DW!prosecutions based on blood draws at HCCLA 's weekly CLE session on Nov. 19. I Obtained through Public Information Act Request pursuant to Chapter 552 of the Texas Government Code. 2 Per Warren Diepraam, Assistant District Attorney for Montgomery County. 3 And, if your client absolutely cannot afford the necessary expert(s), do not despair! Clients who have exhausted their financial resources in getting bailed out and hiring you are entitled to court-appointed experts. Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005). 4 Melendez-Diaz v. Massachusetts, 577 U.S. (2009). 5 Tex. Transp. Code 724.041. The request for hearing must be received within 15 days of the notice of suspension. However, since the lab results may not come back for more than a year in certain cases, the request must be sent to DPS within 15 days of the results being sent to DPS, which then generates the Notice of Suspension. Put a ticker in your calendar to check with DPS every 2 weeks so that you do not miss the filgin deadline for this hearing in the event that the results are delayed by the lab. 6 Tex. Transp. Code 724.017. 7 At the time of writing this article, the Harris County DA's Office has announced plans for defense attorneys to obtain copies of their files, but the specifics of this policy had not been finalized. 8 Physician's Desk Reference (ISBN-13: 9781563637049) is published by Thomson-Reuter's Publishing every year. 9 On February 1, 2009, for example the tennperature in downtown Houston reached 73 degrees. See Weather Underground website, available at http://wv.rw.wunderground.comlh istory /ai rport
N state=N statename=N A (last checked July 29, 2009) have H[I\RI)? Incurred in Defending Malpractice Actions. . [t\ by Yolanda Coroy It's every lawyer's nightmare: you've been appointed to represent a client in a criminal case and then the client turns around and sues you for malpractice If that happens when you were appointed pursuant to the federal Criminal Justice Act (CJAI. you should know a year 2000 amendmentI to the statute now provides assistance to eligible counsel who are alleged to have malpracticed upon their indigent cl ients. The guidelines for obtaining relief are found in Paragraph 2.27E of Volume 7 of the Guidelines for the Admini stration of the Criminal Justice Act and Related Statutes? The Guidelines authorize courts to reimburse panel attorneys for expenses reasonably incurred in defending actions alleg- ing malpractice in furnishing representational services under the CJA. The amendment covers expenses incurred on or after its effective date. which was November 13. 2000 Reimbursement does not occur if amalpractice judgment is rendered against the attorney. Con- sequently. the Guidelines state that no reimbursement should be provided until the malpractice claim is resolved. The total reimbursement is not to exceed the deductible amount of counsel's professional liability insurance policy or $5.000. whichever is less. Expenses qualifying for reim- bursement include. but are not limited to: the costs of transcripts. witness fees and costs. and attorney fees. In determining reasonable attorney fees. CJA rates are inappli cable. However. at- torneys will not be reimbursed for attorneys fees for time spent representing themselves or in assisting counsel in malpractice actions. Reimbursement should be claimed under the expense categories on CJA Form 20 or. where the appointment was in a capital matter. CJA Form 30. and supporting documentation should be attached. I Federal Courts Improvement Act of 2000. Pub. L No.1 06-518 (codified as amended at 18 U.S.C. 3006A(d)(1 ) (2000)) 2 See Guidelines 227(El. available at http://wwvv.uscourts.gov/defenderservices/Chapter 2.cfm#227 (last visited Aug. 1.2009). Yolanda Coray is a longtime HCClA member. past Board Member. former MuniCipal Judge for the City of Houston. and is a solo praclitioner With aprimary practice in criminal law for more than 15 years. DENNIS * * * * *
I bMMI ' COl 'T\ CRI""'" COl NT 0. 13 . -'t'- - Texas Criminal Defense Lawyers Association www.SlateforJudge.com Harris County DennisSlateforJudge Campaign Criminal Lawyers Association 112 E. Forrest Houston Bar Association Deer Park, TX 77536 713-409-3293 Past President Pasadena Bar Association dennis@slateforjudge.com Associate Judge serving Politicaladvertlslnl paidbyDennis5'iIIlefor Judie Campaign,JacquelineHoulette.Tre;utJrer, Houston and Pearland In withthevoluntarylimitsoftheJudldoW Campals" FaIrnessAct. Your Honor, May I Take the Dog on Voir Dire? Evidentiary &Constitutional Objections to Dog-Scent Lineups By Barbara Drumheller Lest anyone be tempted to underestimate the power of dog-scent lineups, consider this: in a recent case affinned in an unpublished opinion by the First Court of Appeals, the only evidence supporting the felony charge came from a few dogs.' Not just any dogs; bloodhounds with cute, evocative names like "James Bond," and "Clue."2 Imagine a juror confronted with testimony that a dog named Quincy solved the case. What's not to love about a cuddly-faced dog named after television's first crime-solving, forensic examiner? 3 In our jurisdiction and others, dog handlers and law enforcement agencies are taking junk science to an entirely new level. 4 Not satisfied with using their dogs as mere investigative tools, they have designed so-called dog-scent lineups to allow the dogs to finger the perpetrator and testify via inadmissible hearsay at trial. The Court of Criminal Appeals has not yet considered the admissibility of dog-scent lineups but the law is developing among the intennediate courts in favor of dog testimony. Defense attorneys have a responsibility to bring this issue to the attention of the courts by making both evidentiary and constitutional objections and preserving the issue for vigorous litigation on appeal. Dogs as Scientists: The Rules of Evidence The leading published opinion on dog-scent lineups in Texas is Winston v. State, 78 S.W.3d 522 (Tex. App.-Houston [14th Dist.] 2002). In that case, the court of appeals upheld the conviction after a trial court denied the defense motion under Rule 702 to exclude the evidence of a scent lineup.s When the defense objects to the admissibility ofscientific evidence under Rule 702, the courts apply the standards set forth by the Court of Criminal Appeals in Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).6 The decision in Kelly was intended to describe a gatekeeping role for courts in the admissibility of scientific evidence, presumably to prevent rampant admission ofjunk science in the courtroom. 7 Unfortunately, the court of appeals in Winston applied a different test to determine the admissibility of dog-scent lineups. The test applied by the court in Winston is the one set out in Nenno v. State, 970 S. W.2d 549, 560-61 (Tex. Crim. App. 1998). Nenno is a less rigorous test intended to apply to expert testimony that is not particularly scientific. s Under Rule 702, an expert need only have specialized knowledge and his knowledge can be based on training and experience rather than science. When the court of appeals applied the Nenno test to dog-scent lineups, it tacitly decided that dog-scent lineups are not actually based on science. At first blush, this seems like a defensible conclusion, because no reasonable person can think that swabbing people and items with gauze, putting the gauze in coffee cans in the parking lot behind the police station, and setting the dogs loose to "alert" on the coffee cans by jumping up and down, wagging their tails, barking or sitting is based on real science. The disadvantage for the defense, however, is obvious once the opinions under Kelly and Nenno are compared: Nenno is a much easier test to meet. 9 Moreover, the court of appeals simplified the Nenno test even further in Winston, when it altered the third prong of the Nenno test specifically for dog-scent lineups. For dog-scent lineups, the third prong of Nenno is met by showing: (I) the qualifications of the particular trainer; (2) the qualifications of the particular dog; and (3) the objectivity of the particular lineup.1O Tn practice, if the dog and its trainer are already familiar to the court or the jurisdiction, the first two parts of the test are automatically met. II After all, if another court has already decided they are qualified, they must be qualified. How does a Nenno objection based on the objectivity of the particular lineup differ from a due process objection that the lineup was impennissibly suggestive? Best to object on both grounds, prior to trial. In cases in Harris County dog handlers have testified to facts that are not based on mere experience and training. For example, Sheriff's THE DEFENDER Deputy Keith Pikett, a dog handler out of Fort Bend County, has testified that dogs track human scent based on skin cells. 12 He has told juries that people shed skin cells constantly, losing "conservatively 50 million of these a day."J) He has testified that such skin cells are "unique to each person, like a fmgerprint." It's hard to imagine how any dog handler or other non-scientific expert could ever learn such a thing through training and experience, given that no scientific testing bas ever been done regarding the uniqueness of human skin celJs. 14 Deputy Pikett has testified he doubts dogs can detect one person's scent on another person, 15 and he has also said that he does not believe scents have commonalities along gender or ethnic lines, although he has no basis for his belief. 16 Such evidence, consisting purely of opinion and conjecture, gives a jury the impression that dog-scent science is well-developed and well-studied, when in fact it has been developed, in Deputy Pikett's own words, "by the seat of our pants." 17 In United States v. McNiece, 558 F.Supp. 612 (D.C.N.Y. 1983), the judge stated, "when a dog is used in a man-trailing situation (or in a lineup), 'be is following a trail which he alone recognizes in a way in which he alone understands.' 18 This statement succinctly summarizes the biggest problem with dog-scent evidence. The judge noted the large number of crimes investigated by the dog and his handler in that case, and pointed out that in all of them, "the suspects either confessed or pleaded guilty after the lineup.,,19 "In this connection," the judge continued, "it might be argued that [the dog] may never have been 'proven wrong' merely because the defendants who pleaded guilty after being identified feared the potential prejudicial weight of the dog identification evidence if they had gone to trial and because the police . ..placed undue emphasis on the reliability of the dog's actions.,,20 Here in our own jurisdiction bloodhounds employed for this type of work have been approved as reliable witnesses in part because they have not been proved wrong on any occasion. 21 The scope of this article is too small to describe all the ways in which this premise is unacceptabIe. 22 The State and the courts should not be able to have it both ways. Either dog-scent lineup testimony is unscientific expert evidence based on training and experience and it should not encompass untested and unproven theories and opinions, or it is a science, and the testimony should be tested under Kelly. An attomey faced with a dog-scent lineup should object under Rule 702, and request a hearing under Kelly.23 Reliability is the linchpin of the analysis under Kelly, and in this regard recent civil lawsuits based on misidentification made by dogs in scent-lineups are instructive. 24 Under the Rules of Evidence, if the court determines the dog-scent lineup is relevant under 702 as interpreted through the lens of either Kelly or Nenno, the evidence may still be excluded under Rule 403. 25 Currently, Rule 801 of the Texas Rules of Evidence defmes a "statement" as, among other things, nonverbal conduct if it is intended as a substitute for verbal expression?6 While dog alerts certainly constitute nonverbal conduct intended as a substitute for verbal expression, the rule applies only to statements made by a "person." Nevertheless, the "statements" made by the dogs accomplish exactly what Rule 802 intends to prohibit. Dogs as Witnesses: Constitutional Violations {I} The Confrontation Clause The Confrontation Clause sat dormant in the face of hearsay rules until the relatively recent decision ofthe Supreme Court in Crawford v. Washington,27 In that case, the Supreme Court made clear that regardless of evidentiary rules, if a defendant is deprived of his right to confrontation and cross-examination as guaranteed by the United States Constitution, hearsay testimony is inadmissible. 28 Even more recently, the Court showed it was not willing to confine the Confrontation Clause to analyses involving hearsay rules. Scientific evidence, relevant and admissible under rules of evidence pertaining to expert testimony, must not violate the Confrontation Clause. 29 Taking these two opinions together, they show the current Supreme Court has an inclination to honor a defendant's rights to confrontation and cross-examination. No courts in Texas have addressed a Confrontation Clause argument in the context ofdog-scent lineups. For that matter, few jurisdictions have considered the application of tbe Confrontation Clause to the question of dog scent evidence. Those that have considered it have concluded that the human testimony of the trainer or handler makes the evidence admissible because the defendant can cross-examine that person?O Moreover, these cases involved tracking or trailing, rather than dog-scent lineups where the dog's "identification" of the perpetrator is presented as if the dog were an eyewitness to the crime. At the time of the writing of this article, no appellate courts have explicitly address the implication of the Confrontation Clause with respect to dog-scent lineups following the decisions in Crawford and Melendez-Diaz. When a dog provides tracking or trailing evidence, the handler can testify at trial about what happened when he followed the trail and what evidence or clues were discovered at the end of it. In a dog-scent lineup, on the other hand, the handler is testifying about what the dog "told" him. The Lineups are conducted in an eerily similar way to a live lineup or a photo array, and the evidence adduced from them is viewed with equal reverence on the part of police and juries. The only distinction between a scent lineup and a live lineup is the nature of the eyewitness. In the latter case, the eyewitness is a human, who can be cross-examined, and in the former case, the eyewitness is a dog who cannot. No amount of cross-examination performed on the dog handler is going to iUuminate the court about the basis for the dog's decision, the level of certainty felt by the dog, the degree of doubt retained by the dog, or the motivation the dog might have had for choosing a particular piece of gauze in a particular coffee can. No one can ask the dog whether he recognized the scent of the officer who took the scent samples, or whether he was confused because of the direction of the wind, or whether, in his experience, the scents of different people include similarities based on their gender, ethnicity, occupation, grooming preferences, or hobbies. In short, cross-examination of the handler or trainer is wholly inadequate. Under Crawford, no officer would be pennitted to testified that he conducted a live lineup and an eyewitness, not present at trial, told him which man conunitted the crime. Cross-examining the officer THE DEFENDER on whether the witness seemed certain, or whether the witness soundedconvinced,wouJdnotsatisfythedefendant'srighttoconfront and cross-examine the witness himself. Likewise, courts should recognize that dogs cannot be pennitted to "testify" substantively aboutadefendant'sguiltthroughthehearsaytestimonyofitstraineror handler.Ifyouareinclinedto believethatcross-examiningthehandler is good enough, ask yourself: in a dog-scent lineup case, who is the eyewitness? {2} Due Process A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use ofthat identification at trial woulddeny the accused due processoflaw]1 As all defense attorneys know, the defendant has the burden to show, by clear and convincing evidence based on the totality of the circwTIstances, that the pretrial identification procedure was impermissiblysuggestiveandthatitcreatedasubstantiallikelihood of irreparable misidentification. 32 This is done during a pretrial hearing. Suggestiveness may be created by the manner in which the pretrial identification procedure is conducted. Forexample, if police pointoutthe suspectorsuggestthata suspectis included in theline-uporphotoarray,theprocedureis suggestive.)) Under Winston, the suggestiveness ofthe pretrial procedure would also be tested on an evidentiary basis, because the altered Nenno test contains a requirement that the particular dog-scent lineup be "objective.,,)4 Suggestiveness, or lack ofobjectivity, is difficult to show without a videotape ora particuJarly forthright officer. Even withavideotape,Jaypeoplewillbeunabletoseewhetherthedogwas influenced by the trainer or whether the dog's "alert" was genuine unless anexpertondogbehaviorcan interprettheprocedure. Adog trainer will not willingly admit he influenced his dog to choose a particularsuspect. Hemaynotevenbeawareofhis own suggestive behavior. Nevertheless,itis worthobjectingtoadog-scentlineupon dueprocessgrounds. Here inourownjurisdiction bloodhoundsemployed for this typeofworkhavebeenapproved as reliablewitnessesin part becausetheyhavenotbeen provedwrongonanyoccasion. Atleastone courtofappeals has decided in an unreported decision thatadog-scentlineup is notacritical stageofacriminal proceeding for purposes ofthe Sixth Amendment.)5 As a result, the defendantis notentitledto representation by counselduringascentlineup.)6 This createsaproblemforthedefenseattorneywhohopestomakearecord to preserve an objection to thesuggestivenessofa dog-scentlineup. Iftheattorneyis notpresentandnovideotapewasmade,theattorney islefthopingtoshowsuggestivenessbycross-examiningthehandler, who has single-handedly ensured that he is the only witness to the dogs'crime-solvingbehavior. THE DEFENDER islefthopingtoshowsuggestivenessbycross-examiningthehandler, who has single-handedly ensured that he is the only witness to the dogs'crime-solvingbehavior. Even ifa pretrial identification is, in fact, suggestive, an in-court identification is usually permitted by the eyewitness as long as it wasn't "so unnecessarily suggestive and conducive to irreparable mistakenidentificationthathe[thedefendant]wasdenieddueprocess oflaw.,,)7The usual factors used to assess an identification include: (1)thewitness'sopportunitytoviewthecriminalact,(2)thewitness's degree ofattention, (3) the accuracy ofthe suspect'sdescription, (4) the level ofcertainty at the time ofconfrontation, and (5) the time betweencrimeandconfrontation.)8 In adog-scentlineupcase,thedogwill beunableto testifyattrialand giveanin-courtidentification. Thisshould highlightfor the courtthe fact that the witness, within the meaningofthe Constitution and the SixthAmendment,isthedogandnotthehandler.Assumingthecourt isunconvincecl,however,anapplicationof theusualfactors regarding identificationshouldhelp. Thefirstfactorconcernsthewitness'sopportunityto viewthecriminal act. The witness (the dog) in a dog-scent lineup case has had no opportunity to witness the criminal act. The second factor concerns thedog'sdegree ofattention. In the traditional application, the courts considerthe eyewitness'sdegreeofattention to the criminal act. In a dog-scent lineup case, the dog had no opportunityto payattention to thecriminalact. Moreover,becausethedogcannotbecross-examined itis impossibleto meaningfullyassessthedog'sdegreeof attentionto the lineup procedure. Noonecanknowwhatthedogis thinking.The third factorconcernstheaccuracyofthesuspect'sdescription. InthecaseofDeputyPikett, his priortestimonyindicatesthe"scent samples"obtained from crimescenesorvictimsare often basedon pureguesswork.Forexample,Piketttestifiedinadepositionthathe swabbed a victim's body in several locations, including her neck, justonthe offchancetheperpetratormighthavetouchedherthere. Hehastestifiedin thepastthatheobtainsscentsamplesfromcrime scenesbytellingofficerstomerelyswabthingsasuspectmighthave touched.Thesekindsof procedurescastdoubtontheaccuracyof the "description"ofthesuspect, to theextenttheswabs from the scene canbeanalogizedto a"description." The fourth factor--the level ofcertainty--can can never truly be known in a dog-scent lineup case. No objective evidence about the dog'scertaintycaneverbepresented.Nevertheless,avideotapeof the lineupandcross-examinationofthehandlercan atleastpresentsome evidencethedogmighthavebeenuncertain. Forexample,testimony from dog handlers in past cases have included comments about variations in a dog's"alert," meaning that sometimes the dogs bark, sometimestheydance,sometimestheywagtheirtailsandsometimes theysit. Thejudgeshouldconsiderthepossibilitythatachangein the dog's usual manner of"alert" might indicate a diminished level of cel1ainty, regardless ofthe handler's interpretation. Finally, the fifth factor, timingof thelineup,canbeappliedbasedonthetimebetween thecrimeand thetimethescentsampleswereobtained,and thenthe timebetweenthecollectionofscentsamplesandthelineup.Eventhe mostoptimisticandidealisticofdogtrainershaveadmittedthatscents deteriorateovertime.)9 Dogs as Substitutes For Actual Evidence: The Conclustion Courts are fond of saying that the ability of certain breeds of dogs, especially bloodhounds, to distinguish humans by scent is well-documented. This may be true, but the ability of bloodhounds to communicate to humans, through nonverbal gestures, whether a gauze pad that has been rubbed on a person's skin and put in a can indicates that person has committed a crime is something else entirely. Cowts respond that jurors will understand the limitations of such testimony, because they will recognize that dogs are "human-like" and subject to lapses in judgment and perception, which means their evidence will have lesser potential prejudicial impact. 4o Whether juries recognize that dogs are "human-like," and subject to lapses in judgment and perception is an open question. History suggests it is more likely that juries will consider dogs to be truthful, capable, pure in motive and gifted with superior olfactory senses, however limited our understanding ofthem. 41 The cowts in Texas have just begun to respond to the advent ofdog-scent lineups. There is still a real opportunity to keep this unreliable junk science out of our courtrooms. Barbara Drumheller started her career in criminal law at the Harris County District Attorney 's Office in the appellate division. She left that position in 2000 to take contract appeals while caring for her three small children. She is now building a private practice handling mainly post-conviction matters. I Perkins v. State, No. 01-08-oo205-CR, 2009 WL 2050494 (Tex. App.-Houston [14th Dist.] 2009) (in this case, the dogs provided the only evidence ofentry in a case that otherwise would have been cbarged as a misdemeanor theft). 21d. at 5. 3 Quincy. M.E. (NBC television show). Quincy, M.E. premiered on October 3, 1976 and ended on May II, 1983. The popular show documented the career ofa crusading Medical Examiner in Los Angeles, an expert always capable of finding a small clue everyone else missed. 4 In several jurisdictions dog-tracking or scenting evidence is already inadmissible, per se, on reliability grounds. People v. PJanschmidt, 262 m. 411,104 N.E. 804 (1914); Ruse v. State, 186 Ind. 237, 115 N.E. 778 (1917); State v. Grba, 196 Iowa 241, 194 NW. 250(1923); Stale v. Storm, 125 Mont. 346,238 P.2d 1161 (1951); Brott v. State, 70 Neb. 395, 97N.W. 593 (1903); People v. Centolella, 61 Misc.2d 726, 305 N.Y.S.2d 460(1969). S Rule 702 of the Texas Rules of Evidence states: "If scientific, technical, or other specialized knowledge will a ~ s i s t the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testifY thereto in the form of an opinion or otherwise." 6 I"n Kelly, the Court of Criminal Appeals held, "Evidence derived from a scientific theory, to be considered reliable, must satisfY three criteria in any particular case: (a) the underlying scienti fie theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question." Kelly, 824 S.W.2d at 573. 7 PETER T. HOFFMAN, TEXAS RULES OF EVlDENCE HANDBOOK 683-87 & 702-739 (Jones McClure Publishing, Inc., 2008-2009) (8th ed.) (setting forth the development of the law regarding scientific experts and the problem ofjunk science). 8 Nenno, 970 S.W.2d 549 at 560-62. Resources for Defense Lawyers with Dog-Scent Cases The Trial Project of the Texas Defender Service keeps resource files on dog-scent evidence and on Fort Bend County Sheriff's Deputy Keith Pikett. These materials include scholarly papers on dog-sccnt lineups, prior testimony by Deputy Pikett, and testimony by defense experts. Therefore, if you're facing dog-scent cvidcnce or Deputy Pikctt as a witness for thc prosecution in your next casc and you want to obtain a copy of these materials on CD-ROM, contact Kathryn Kase at KM Kase@compassnet.com. 9 In Nenno, the Court of Criminal Appeals stated that the appropriate questions for assessing reliability are: (I) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert's testimony is within the scope of the field; and (3) whether the expert's testimony properly relies upon or utilizes the principles involved in the field. Nelina, at 561. 10 The court broke down the analysis even further by providing five factors to consider regarding whether the particular dog is qualified: it must be (I) ofa breed characterized by acuteness of scent and power ofdiscrimination, (2) trained to discriminate between human beings by their scent, (3) found by experience to be reliable, (4) given a scent known to be that of the alleged participant of the crime, and (5) given the scent within the period of its efficiency. Winstoll v. Stale, 78 S.W.3d at 527-28. II See Perkins v. State, No. 01-08-00205-CR, 2009 WL 2050494, 15 (Tex. App.- Houston [14th Dist.] 2009) (citing Wins/on for the proposition that Deputy Pikett and his bloodhounds are qualified to perform scent lineups). 12 Testimony from Perkins v. State at R.R.3 - 134. 13 He has also said people shed, conservatively, fifteen million cells a day. Winfrey v. State, --S.W.3d-, 2009 WL 1636849 (Tex. App.-EastJand, 2(09). 14 See, Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth oJthe Dog &enl Lineup, 42 Hastings L.1. 17 (\990); see also Deposition ofKeith Pikett (Document No. 81) in Buchanek v. City oj Victoria, No. 6:08-CF"()()()()8 (S.D. Tex. 2009) ("there isn't much literature on [training methods for bloodhound scent discrimination]. There's pamphlets handed out by these Old Timers, there's the National Police Bloodhound Association's little pamphlet on information on bloodhounds, but there are no books written that you could just pull up"). IS Wi'!frey v. State, ---S.W.3d---, 2009 WL 1636849 (Tex. App.-Eastland, 2009). 16 Testimony from Perkins v. Stale at R.R.3 - 148. 17 Testimony from Perkins v. State at R.R.3 - 133. THE DEFENDER 18 u.s.v. McNiece,558F.Supp.612(D.C.N.Y. 1983)(quotingL.W.Davis,GoFind! 60(1974. 19Id.at614. 2OId. 21 Winfreyv. State, --S.W.3d--,2009WL1636849(Tex.App.-Eastland,2009). 22 Atleastonetrial courtthat has barred Deputy Pikett'sdog-scentlineup testimony. SeeOrderatRRVol.2:161-65inStatev.JustinJeromeAlexander,CauseNo.50041 (268th Dist. Ct., Fort BendCounty June 16,2009). Additionally, Deputy Pikett has nowbeensuedbytwomenwhowereclearedbyDNAtestingaftertheyweresuspected of, respectively, a capital murder and a rape based on scent-lineup alerts made by DeputyPikett'sdogs. See, e.g., Buchanekv.Cityof Victoria, CauseNo.08-CV-OOOO8 (S.D.Tex. 2(09)(lawsuitbysheriffsdeputyallegedtobe personofinterestin capital murder);Millerv.CityofYoakum,CauseNo.09-CV"()()()35 (S.D.Tex.2009)(lawsuit byman suspectedofrapebasedondog-scentlineup). 23 A non-exclusive list offactors the court can consider while conductinga Kelly analysisinclude(I)theextenttowhichtheunderlyingscientifictheoryandtechnique areacceptedasvalidbytherelevantscientificcommunity,ifsuchacommunitycan be ascertained;(2)the qualificationsoftheexpert(s)testifying; (3)theexistence of literaturesupportingorrejectingtheunderlyingscientifictheoryand technique;(4) thepotentialrateof errorofthetechnique;(5)theavailabilityof otherexpertsto test andevaluatethetechnique;(6)theclaritywithwhichtheunderlyingscientifictheory and techniquecanbe explainedto the court; and(7)the experienceandskill ofthe person(s)whoappliedthetechniqueontheoccasioninquestion. 24 RickCasey,Dog'sNoseFallibleasa CrimeLab, HoustonChron.,June30,2009. 2S Rule403states: "Althoughrelevant,evidencemaybe excludedif itsprobativevalue is substantiallyoutweighedbythe dangerofunfairprejudicc,confusionofthe issues, ormisleadingthejury,orbyconsiderationsof unduedelay,orneedlesspresentationof cumulativeevidence." 26 TEX. R EVID.801(a). 10yearsofcriminal SpecialProsecutor lawexperience LegislativeLiaison, Member,StateBarRulesof 80thLegislature Evidence Committee Formerpeaceofficer Experienceddefenselawyer and former prosecutor: Over300criminalappeals Felonyandmisdemeanor andwrits (stateand trialcourts federal), includingover25 Federal andTexas Chapter64DNA appeals appellatecourts TexasCourtofCriminal Appeals UnitedStatesSupreme Court Pol ad.paid for by the Peyton Peebl es for Judge Campaign, JamesStafford,Treasurer PO Box 53776 Houston, Texas 770523776 THE DEFENDER 27 Crawfordv. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158L.Ed.2d 177(2004). 281d. at51, 124S.Ct. 1354. 29Melendez-Diazv. Massachusetts,577U.S.--y2009WL1789468(2009). 30 Copley v. State, 153 Tenn. 189, 281 S.W.460 (1926) ("such evidence is not inadmissibleonthegroundthatthedogisthewitnessandcannotbe cross-examined. Itisthe human testimonywhich makesthetrailingdonebytheanimalcompetent); seealso,Statev.Bumice, 131 Wash.App.10011,2006WL122198(2006). 31 Simmonsv. UnitedStates, 390U.S. 377,384(1968);Barleyv.State,906S.w.2d27, 32-33(Tex.Crim.App. 1995). 32Simmons,390U.S.at384;Barley,906S.W.2dat32-34. 3JIbarrav. State, II S.W.3d 189, 196(Tex.Crirn.App. 1999). 34 Wins/on v. State, 78S.W.3d522,527(Tex. App.-Houston[14thDist.]2002,pet. rePd). 3sJenningsv.State, No. 14-08-00123-CR,WL1677858(Tex. App.-Houston[14th Dist.] 2(09). J61d. 37 Neilv.Biggers, 409U.S. 188, 196,93S.Ct.375,380,34L.Ed.2d401 (1972). 38Barley,906S.w.2dat34-35. 39See, e.g., DepositionofKeithPikett(Exhibit2to DocumentNo. 81)inBuchanekv. Cityof Victoria, No.6:08-CF-OOOO8(S.D. Tex.2009). 40 Us. v.McNiece,558F. Supp.612(D.C.N.Y. 1983). 41 See, Andrew E. Taslitz,DoestheColdNoseKnow? The UnscientificMythofthe DogScentLineup,42HastingsL.J. 17,26-27(describingthemanywaysinwhichthe bloodhoundhasbeenreveredthroughouthumanhistory). Recently, a defendant was charged with three felony counts in state district court in Harris County and the court set bonds in an amount totaling nearly $200,000. The defendant paid a bonding fee of nearly $15,000, which allowed him to "bond out" of jail, and he made six court appearances over a four-month period. On the morning of his seventh appearance date, the defendant was late to court - because a federal law enforcement agency had detained him at his home. The trial judge forfeited the defendant's bonds and set his release status at "no bond." When the federal law enforcement agency finally released the defendant, he immediately went to court. The trial judge then began the process of recalling the forfeiture and reinstating the bonds. However, the defendant's bonding company approached the judge with an Affidavit of Surety to Surrender Principal. The bonding company sought the surrender for three reasons: "(1) [T]he defendant was detained by federal agents on [the] scheduled court date and his bond was forfeited, then later reinstated; (2) The defendant failed to report a new address to this bonding company; and (3) [the bonding company] believes this defendant will eventually go into federal custody before the case is disposed and the bond will forfeit." The trial judge granted the surrender motion and took the defendant into custody. The defendant was able to bond out that afternoon with the assistance of a new bonding company. Fortunately for the defendant, his attorney filed a Motion for Refund of Bail Bond Fees pursuant to section 1704.207 ofthe Texas Occupations Code. Section 1704.207 states: [I]f a principal is surrendered...and the principal or an attorney representing the state or an accused in the case determines that a reason for surrender was without reasonable cause, the person may contest the surrender in the court that authorized the surrender. The law goes on to state that, if there was not "reasonable cause" for the surrender, a trial court can require the bonding agency to refund all or part of the fees paid to execute the bond. Additionally, the trial court must identify the fees paid to induce the bond execution "regardless of whether the fees are described as fees for the execution of the bond." As a result ofcounsel's motion and reliance upon Section 1704.207, the trial judge found that there was not reasonable cause for the surrender and ordered the original bonding company to refund $10,000 to the defendant. This demonstrates that counsel can obtain a refund of all or part of the fees paid to execute the bail bond when the surety has sought to surrender the principal without reasonable cause. As a first step, however, attorneys and clients are advised to seek responsible and ethical sureties who will post bonds and not seek surrender under unreasonable circumstances. John Burns is the founder of Burns Bail Bonds, a family-owned bonding company which has been in operation since 1971. IRONHORSE SECURITY S INVESTIGATION I ~ TEXAS LICENSE NO.C10602 PO BOX2982 HOUSTON,TEXAS 77252 PH. 281-513-3925 FAX 713-937-0143 Experienceisamustinthischangingeconomyweliveintoday. WiththechangingeconomybringshardshiptoHouston,thestateof Texasandthisnation. AsAttorney'syouwanttobeabletodefendyourclienttothebestofyourability. Withthatsaidyou needateam ofinvestigatorsthatareallonthecuttingedge. IronhorseSecurityand Investigationsisthatteamofinvestigatorsthatcangiveyouandyourfirmthatedge. AtIronhorseSecurityand Investigations,ourteamconsistsofDanielSheltonformerIRS Investigator,BuddySledgea30yearspecialistinsurveillance, childcustody andworkerscompensationcases, CarolynKizzie retired HarrisCountyProbationOfficerspecializinginPSI reports, Alicia Floresseven yearsofcriminalInvestigationsinanevergrowingbl-lingual community,Joe Martinezretired38yearVet.HCSO NarcoticsDeputyand lastlyAlanSteuart,formerDEAAgentwith23yearsofcriminal,civilandfamilylawinvestigativeexperience. AlanSteuartalsowasthe headofsecurity forHeavyWeightChampionEvanderHolyfieldanddidatourinAfghanistanasaSecurityCoordinatorforUSPI. TheinvestigatorsofIronhorseSecurityandInvestigationsareallversedandseasoned incriminalinvestigations,civil investigations,asset investigations,backgrounds,surveillanceandarealsolicensedinPersonalProtectionandSecurity. Thereis nojobtosmallortoolargeforourcompany. Letushelpyouwithallofyourinvestigativeneeds.Behind every great Attorney Is a great Investigative team. Takeachanceandletusshowyouwhatwecando. Alan Steuart, FormerDEAAgent,Owner/Manager THE DEFENDER Variances Are Not Departures by Another Name By Marjorie A. Meyers Background The federal sentencing guideline scheme required a sentencing court to impose a sentence within the guideline range unless the court determined that there was a circumstance of a kind or to a degree that had not been adequately considered by the Sentencing Commission. I In United States v Booker, 543 U.S. 220 (2005), the Supreme Court held that this mandatory guideline regime violated the Sixth Amendment. 2 The Court judicially excised Section 3553(b), declared the Guidelines advisory, and instructed judges to sentence in accordance with 18 U.S.C. 3553(a) . 3 Section 3553(a) commences by directing courts to "impose a sentence, sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2)."4 This parsimony provision is the " overarching provision instructing district courts" how to impose a sentence. s The court is to consider the nature and circumstances of the offense and the history and characteristics of the defendant. 6 The court must then consider (I) the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law and provide just punishment, (2) to provide general and individual deterrence, and (3) to provide treatment and rehabilitation to the defendant "in the most effective manner."? The court must also consider the kinds of sentences available, the guidelines and policy statements, the need to avoid "unwarranted" disparity and to provide restitution. 8 The Guidelines are still an integral part of any post-Booker sentencing: they are the "starting point" and "initial benchmark.,,9 The district court's discretion, however, is "significantly broadened," and the sentencing judge must make an individualized assessment of the facts of each case. IO Moreover, the sentencing court shalt not presume that the advisory Guideline range is appropriate in an individual case. II Circumstances Need Not Be Exceptional to Warrant a Variance Before Booker, a sentencing court's authority to depart depended on whether a factor was prohibited, encouraged, 12 discouraged, or not mentioned by the Sentencing Commission. Encouraged departures were permitted if not already adequately considered and "warranted."1J Discouraged and unmentioned departures were permissible only if present "to an exceptional degree," '4 in other words, if the circumstances were "extraordinary."l s departure guidelines by way of analogy in analyzing the section 3553(a) factors.,,' 9 @ THE DEFENDER In rendering the Guidelines advisory, the Supreme Court authorized sentencing courts, not only to depart from the Guidelines, but also to vary from the recommended ranges in accordance with 18 U.S.c. 3553(a). After Booker, it should be "pellucidly clear" that the particular factors in any given case need not be " extraordinary" to warrant a variance from the Guidelines. ' 6 Indeed, the Fifth Circuit has held unequivocally that after Gall and Kimbrough, "[w]ithout a doubt, the requirement of 'extraordinary circumstances' is no longer the law. " '? In Simmons II, the court of appeals announced the "death of the 'extraordinary circumstances' language from Simmons I," and remanded the case to allow the district court to consider whether a downward variance based on age, a discouraged factor under USSG 5H1.1, was warranted. 18 Other circuit courts have likewise made it clear that a defendant's individual circumstances need not be extraordinary to justify a non-Guideline sentence. The Seventh Circuit deems "[t]he concept of departures . . . obsolete in post-Booker sentencing ...[although] the district court may apply those departure guidelines by way of analogy in analyzing the section 3553(a) factors."19 In United States v. Chase,20 the Eighth Circuit vacated a sentence where the district court erroneously equated variances and departures. The court of appeals emphasized: Variances do differ from departures Factors ordinarily considered irrelevant in calculating the advisory guideline range, or in determining whether a guideline departure is warranted, can be relevant in deciding whether to grant a variance....21 The Eighth Circuit went on to address not only the propriety but the necessity of addressing the types of personal circumstances in a given case: In fashioning a " sentence sufficient, but not greater than necessary," 18 U.S.c. 3553(a), "district courts are not only permitted, but required to consider 'the history and characteristics ofthe defendant.'" ...As a consequence, factors such as a defendant's age, medical condition, prior military service, family obligations, entrepreneurial spirt, etc. can form the bases for a variance even though they would not justify a departure. 22 Rejecting the government's reliance on pre-Booker caselaw, the Eighth Circuit clarified that "departure precedent does not bind district courts with respect to variance decisions, it is merely persuasive authority.,,23 Similarly in United States v. Jones,24 the Second Circuit affirmed a district court's variance from a 30-to-37-month Guideline range to a sentence of 15 months for a defendant convicted of being a felon in possession ofa firearm and possession offive bags ofmarijuana based on the defendant's "consistent work ethic," his family obligations and support, his father's recent death and his efforts atrehabilitation. 25 The government argued that the sentence was not permissible becausetheSentencingCommissionhaddiscourageddepartures based on a defendant's education, emotional condition, employment record, family ties and good works.26 As the Second Circuit recognized, the government's reliance on pre-Booker policy statements and court decisions revealed a fundamental"misconception"concerningtoday'snon-Guideline sentences. 27 Thecourtexplained: By citing the Guidelines' departure standards, however, the Government fails to appreciate that Jones's post-Booker sentence is not a Guidelines departure; itis a non-Guidelines sentence.. With the entire Guidelines scheme rendered advisory by the Supreme Court's decision in Booker, the Guidelines limitations on the use of factors to permit departures are no more binding on sentencing judges than the calculated Guidelines ranges themselves. Of course, a sentencing judge's obligation to "consider" the Guidelines ..includes the obligation to consider the Commission's relevant policy statements as well as the calculated Guideline range. But "consideration" does not mean mandatory adherence. 28 In United States v. Martin,29 the First Circuit approved a district court's 91-month variance, which was based in part on the defendant's family circumstances and support. The courtof appeals indicated that the Sentencing Commission's policy statements still were pertinent but "normally not decisive as to whatmayconstituteapermissibleground for a variantsentence in agivencase.,,30 Theappellatecourtaddedthatadistrictcourt may take "idiosyncratic family circumstances into account, at least to someextent, in fashioning a variancesentence. ,,31 The SixthCircuitanticipated the SupremeCourt's rejection in Gall ofmathematicalratios inupholdinga68-monthvarianceto themandatory 120-monthminimumforadefendantconvictedof possessionof203gramsofcrackwith intentto distributeit, who also possessed four firearms including a loaded machine gun, and a pipe bomb.32 The variancewas based on the defendant's age, his minimal criminal record and family circumstances includingthefact thathisfatherhadbeenmurderedwhenhewas nine and his motherdiedofcancertwo years later. 33 Insummary,thesentencingcourthas anobligationto consider all "nonfrivolous reasons" proffered by the parties for a non-Guideline sentence. 34 In doingso, thecourtmust notfocus solely on the offense to the exclusion ofconsideration ofthe circumstances ofthe offender.J5 It is not "severe punishment that promotes respect for the law, it is appropriate punishment,"36 that is, punishment that is "sufficient, but not greaterthannecessary," to complywith the purposessetforth in the statute. 37 I 18 U.S.c. 3553(b). 2 United States v. Booker, 543 U.S. 220, 233-35, 244 (2005). 3 Id. at 259-61. 4 18 U.S.c. 3553(a). 5 Kimbrough v. United States, 128 S.Ct. 558, 570 (2007);see also Gall v. United States, 128 S.Ct. 586,596(2007); Rita v. United States, 551 U.S. 338,_ ,127S.Ct. 2456, 2463 (2007). 6 18 U.S.C. 3553(a)(I). 7 18 U.S.c.3553(a)(2). 8 18 U.S.c. 3553(a)(3)-(7). 9 Gall, 128 S.Ct. at596. 10Id. II Nelson v. United States, 129 S.Ct. 890, 892 (2009); Rita, 127 S.Ct. at2465. 12 Koon v. United States, 518 U.S. 81,93-96(1996). 13 USSG 2K2.0(a)(2)(A); Koon, 518 U.S. at96. 14 USSG 2K2.0(a)(4);Koon, 518 U.S. at95-96. 15 See e.g. United States v. Simmons (Simmons 1),470 F.3d 1115, 1130 (5th Cir. 2006), cert. denied, 127 S.Ct. 3002(2007). 16 Gall, 128 S.Ct .at 595. 17 United States v. Simmons (Simmons II), 568 F.3d 564, 568 (5th Cir.2009)(citing United States v. Rodriguez-Rodriguez, 530F.3d 381,384n.4 (5th Cir. 2008. 18 Id. at568, 570. 19 United States v. Schroeder, 536 F.3d746, 755-56 (7thCir.2008) (emphasisadded)(agreeingwithdistrictcourtthatdefendant's family circumstances includingadopteddaughterwith immune deficiencywereextraordinary). 20 560F.3d 828 (8th Cir. 2009). 21 Id. at 830 (citationsomitted). 22 Chase, 560F.3d at 830-31 (emphasisadded) (citing, interalia, United States v. Lamoreaux, 422F.3d 750, 756 (8thCir. 2005) (approvingconsiderationofmilitaryservice,pregnancyof defendant'swifeand his need to carefor his children, and his "entrepreneurialspirit". 23 !d. at 832(emphasis in original). 24 460F.3d 191 (2dCir. 2008). 25 Id. at 194. 26 Id. (citingUSSG 5HJ.2,5Hl.3,5Hl.5,5H1.6,5Hl.lI). 27/d. at 194-95. 28/d. (emphasisadded, citationsomitted). 29 520F.3d 87, 93-95 (Ist Cir. 2008). 30 Id. at 93. 31 Id. (citationsomitted). 32 United States v. Collington, 461 F.3d 805, 807 (6thCir. 2006). 33 Id. at 809. 34 Rita, 127 S.Ct. at2468. 35 United States v. Olhovsky, 562 F.3d 530, 549-50(3d Cir. 2009). 36 Id. at551 (emphasis in original). 37 18 U.S.C.3553(a). Marjorie A. Meyers is the Federal Public Defender for the Southern District of Texas. This article previously appeared in the Summer 2009 issue of The Bulletin, the publication of the Federal Public Defender for the Southern District of Texas . THE DEFENDER @ YOU, TOO, CAN WIN APAROLE REVOCATION HEARING ~ ~ L,o yooJ o ~ lc\-) If you are a young lawyer, you probably have a little morefreetimethanyouwouldliketoadmitandparole revocationhearingsareagreatwaytofill thattime. First,eachhearingisasurefireopportunitytomakean immediateandpositive impacton someone'slife. The peopleyouwillserveinthissettinghavebeenin andout ofprisonsandhalfwayhousesformostoftheirlives. A majoritysufferfromsometypeofmentalillness. Many arehomeless, havenofamilies, and haveseen few kind faces in their long careers. Practically speaking, you will getto regularlycross-examine witnesses andlearn howto builda mitigationcaseon a shorttimeline- all necessaryskillsthat,whenyou arenewtothepractice, definitelyneed sharpening. WHEN YOU GET YOUR FIRST APPOINTMENT, THIS IS WHAT HAPPENS- Someone from the Texas Board ofPardons and Paroles will \ canyouandsay,"Wehaveahearingscheduledfor(date,time) atthe Harris CountyJai l. Are you available?" You will say, "Yes,"andtheywillstartrattlingoffawholelotofinformation including the name and number for the parole officer and hearingofficerandyouwillhavenoideawhattheyaretalking about. Justwrite it all down. Immediately fill out and fax the Attorney Fee Affidavit to Austin. You cannottake action on the case until you have doneso. Pickup the phoneand can the parole officer. Ten them you havejustbeenappointedto thecaseandyouneed them to fax therevocationpacket. Warning: startcallingthe P.O. onDay Onebecausethe chancesofyoucatchingthemin theiroffices areslimtonone. Donotbealarmedifittakesyouthreeorfour phonecallstogetwhatyouneed. TheRevocationPacket. Thefirstpagewill likelybetheparole certificate. Lookfor ahandwrittendateatthebottom- thiswill be the date the person is scheduled to discharge from parole. The Certificate ofParole will have the terms and conditions listed. There win also be aviolation report. This is whatthe paroleofficergeneratesonceheorsheissuesawarrant. Avery important page is the Adjustment Statement. It is a onepage document the parole officer prepares to show how well your clienthas beendoingwhileonsupervision. GovisitthenewclientASAP. Unfortunately,therearelawyers who lay eyesupontheirclientsfor the first time thedayofthe hearing. Do not do this. I try to waita day to hopefully get the revocation packet from the parole officerso I can have a more productive clientvisit, but time is a luxury because you will usually have about aonly week to prepare. Find out(in addition to the facts surrounding the alleged violation): how far the person went in school, whether they were in special education classes, whether they can read (and do not take theirwordfor itifyou havedoubts),whatkindsofmedication theytake, and whetherthey receive orhaveapplied forSocial Security Disability. Discuss whether your client has a safe placetowhichheorshecanbereleasedandstartcallingMom, AuntBetty,andCousinDan as soonas you leavethejail. Ifyour client has special needs and cannothelp you at all, call the P.O.andask iftheyhaveanycontactinformationfor friends and family. Sometimes the P.O.' s are helpful and compassionatesocialworkertypesso itdoesnothurttoask. You can usually get a short continuance ifyou need one. If -I difficultiesdeveloporyouneedmoretimeforwhateverreason, callthehearingofficerand letthemknowyouneedmoretime. Heorshewillfaxyou the formforthecontinuancerequestand as longas you have agood enough reasonyou should be able togetone. t(2 You can and should subpoena witnesses. Ifyou want to o subpoenasomeone,tentheP.O.byphoneand/orfax andthey willdoit. I The Hearing. As a courtesy to all involved, the revocation hearings are held in the luxuriousattorney visitboothsatthe jail. Arriveearlysoyoucanseeyourclientbeforethe parole andhearingofficersarrive. Haveyourfee affidavitfilled out (estimate about a halfhour for the hearing and then correct youraffidavitafterthe hearing ifyou need to). My hearings havelasted anywherefrom 15 minutes to 4hours,butusually they are aboutan hour. The Hearing Officer will go on the recordandaskyouto sweartothefee affidavit. Heorshewill then say,"Wearehereto conductahearingregardingClient. Therearetwopartstoarevocationhearing. Thefirstpartis to determinewhetherornota preponderanceofevidence exists to believethatyouhaveviolatedoneormoreofthetermsand conditions ofyour release. IfI do so fmd, we will continue with the adjustment phase ofthe hearing where we will see how you have been doing since your release and what kind ofplan is in place for the future. Counsel, do you wish to waivethereadingoftherights?" Yousay,"yes"becauseyou have already gone over your client's rights with him or her. Thehearing officerwincontinue,"Yourattorneyhas waived the fonnal reading ofthe rights. Client, you are accused of violating one or more ofthe terms and conditions ofyour release." Hearingofficerwill read the accusations and ask," Doyou admitordeny?"Yousay,"deny." TheP.O.willoffer the certificateofparole and otherdocumentsand,beforeyou know it, the hearing officer will find by a preponderance of evidencethatyourclientviolatedparole. If,however,youcan putup agooddefenseto theviolationinyourcrossoftheP.O. and any supportingwitnesses, move to close the hearingand askfora"nofinding." Youmightgetlucky. Ifyouarenotso lucky,theadjustmentphaseof thehearingisagoodtimeto let yourclienttestify about how he orshewants a chance to do betterand to ask formercywithyourguidance. \0 Keeptrack ofyourtime. Don' tworry:thepaperworkwill get quickerandeasierwith practice. Sendyourvoucherin assoon as youcan. It will take the boardabout90daysto payyou,so the sooneryoumail itin thebetter. Now that you are vaguely familiar with the razzle-dazzle world ofparolerevocations,call the TexasBoardofPardons and Paroles at512-406-5452and they will gladly send you a registrationpacketinthemail. Thisisbyno meansalucrative area ofpractice, but you will getto help a lotofpeoplewho desperatelyneeditandsharpenyourskills,to boot. Sunshine L. Swallers is a criminal defense attorney and is on the HCCLA Board ofDirectors. She likes wajJles, tamales, sky diving, and libraries. THE DEfENDER @ HarrisCountyCriminalLawyersAssociation PostOfficeBox924523 713.227.2404 HoustonTX 77292-4523 Fax: 713.699.3727 ====================www.hccla.org FORIMMEDIATERELEASE THEHARRISCOUNTYCRIMINALLAWYERSASSOCIATION'S STATEMENTREGARDINGTHENEWDWIDIVERSIONPROGRAM TheHarrisCountyCriminalLawyersAssociationstandsunitedagainsttheDWI Diversionprogramannouncedtodaybythe DistrictAttorney'sOffice. Whatappearson the surfaceto be an actofbenevolenceisin factanassaultontheconstitutionalrights of all oftheindividualsaccusedofDWI. Thisprogramwillbe forcedonan unsuspectinganduninformedaccusedbywayofan overlycoercivepleabargain. Underthenewprogramdefendantswillbeofferedthe diversionprogramoralternatively30daysinjail. Currentlythereareveryfewjailtime offerstoresolveafirsttimeDWI. TheactionbytheDistrictAttorneysofficeispunitive andnotinkeepingwiththeirdutytoseethatjusticeis done. Thediversionprogramforces defendantsto confessandenterapleaofguiltythatwill resultinjailtimeiftheyareunabletoliveupto therequirementsoftheprogram. The diversionprogramrequiresthoseparticipatingto give up anyandallprotections providedbytheUS andTexas Constitution. Thisprogramisanaffrontto theadversary processandstepsontheconstitutionalprotectionsthatallcitizensenjoy. HCCLArepeatedlyaskedtomeetwiththe DistrictAttorneyaboutthisprogram. AlthoughtheDA'sofficearrangedmorethanonemeetingwiththejudgesinprivatethey refusedtoreceiveinputfromthedefensebar. Theentiredefensebarwasunethically excludedfromthis one-sidedconversation. !) lifEDEFENDER HarrisCountyCriminalLawyersAssociation Post Office Box 924523 713.227.2404 Houston TX 77292-4523 Fax: 713.699.3727 www.hccla.org August 10, 2009 Hon. Jean Hughes, I am writing on behalf of the more than 550 members of the Harris County Criminal Lawyers Association. HCCLA is aware that the District Attorney's Office has discussed at least one policy change with the county court judiciary (Le. their new DIVERT program). We are also aware that the District Attorney's Office met with judges, individually and as a group, for the purposes of advising the judges of their new policies, to answer questions from the judges, and to formulate courtroom procedures for the implementation of their new program. Neither HCCLA, nor the defense bar in general, was informed of or invited to these meetings. Further, no public notice of these meetings was posted or circulated. HCCLA is seriously concerned that these meetings constitute prohibited ex parte communications between the District Attorney's Office and the jUdiciary. There is concern that these ex parte policy discussions were for the purpose, implicitly or explicitly, of recruiting support from the judiciary with respect to matters that affect thousands to tens of thousands of pending and future cases. Our concern is obviously that such ex parte discussions appear to and likely violate the judiciary's duty to remain neutral and detached -- at least in appearance, if not also in substance. Such discussions clearly create an appearance that the judiciary is involved in supporting the prosecutorial policies and programs. While the District Attorney is certainly able to set her own policies, those policies should not be staffed with or discussed with the judiciary absent an open meeting in which the agenda is made public prior to the meeting. Allowing the District Attorney to meet privately with the judiciary to discuss policy and its impact upon the courts and individual cases without the presence of the defense bar violates a variety of Judicial Canons. We are aware that some view these discussions and meetings as merely "informational" and therefore acceptable. HCCLA rejects that view. While some of the meeting may be "informational" in the sense that information is provided, there is no exception to the prohibition on ex parte communications on the basis that the information is merely informative. Calling it merely "informational" sounds good, but it ignores the substance. The recent meetings extended beyond "informational" when the District Attorney's office sought the cooperation of the judiciary for implementation purposes as well as procedural purposes. We suspect that if HCCLA scheduled a meeting for the defense bar to ex parte advise, the judiciary, as a group, about, for the sake of argument, concerns with the DIVERT program or to encourage the judiciary not to support such a program, the District Attorney's office would likely make the same claim we now make that such communications were improperly ex parte. It should be no different when such meetings are scheduled by the District Attorney's office. If there are to be any future meetings or discussions with the District Attorney's office, the defense bar, as represented by HCCLA, as weB as the broader defense bar, should be given advance notice of, and an opportunity to be included in any such meetings. To do otherwise is to improperly foster the continuing belief among the public and many lawyers that far too many of the Harris County jUdiciary are little more than an extension of the District Attorney's Office. It fosters an appearance of partiality and impropriety to exclude the defense bar from such meetings -- something we hope is not supported by the Harris County Judiciary. Respectfully. QmlA/XdL U JoAnne Musick President cc: Hon. Patricia Lykos, District Attorney THE DEFEIIER Wendy Miller (center/rant) appeard with Milby High School students Luis Morales and Maria Flores on Great Day Houston with Deborah Duncan (center back) to discuss Teen Dating Violence Awareness. Research World Unlimited Private Investigation Company o ~ a Dee Rafteet Private Investigator IIA-08232 Mitigation Specialist Criminal Investigations Minority Investigations (Black/Hispanic) Bilingual (Spanish/French) 713-869-7300 ofe E-mail: sonjadee@aol.eom 713-868-3850 fax PO Box 111506 Houston 77293 THE DEFENDER Teen Dating Violence Awareness has been a community service project new to HCCLA during the 2008-09 bar year. This project, which carries the slogan: "It Shouldn't Kill a Texas Teen to Date," has included classroom sessions, television programs and other forms of outreach intended to teach teens that dating violence should not be tolerated. Local attorneys and judges have hosted eight classroom sessions at local high schools and community events. Sessions also have been conducted for teen shelter residents at the Houston Area Women's Center. Topics have included understanding the differences between a healthy and unhealthy relationship, and how to handle a break-up with a potentially violent person. HCCLA and the Houston Young Lawyers Association (HYLA) also have helped coordinate two separate segments on Houston television stations. HCCLA devoted an entire episode of Reasonable Doubt to the teen dating violence topic earlier this year. Speakers included Judge Judy Warne, local attorneys Kim Ogg, Beth Barron and Jane Waters, and students from Milby High and the High School for Law Enforcement and Criminal Justice. Our speakers subsequently discussed teen dating violence in a segment that aired on Great Day Houston on KHOU-TV. HCCLA also participated in an audience "talk back" at Stages Repertory Theatre following a performance of The Yellow Dress during Teen Dating Violence Awareness week (which was February 2-6). In addition to HCCLA and HYLA, support for the Teen Dating Violence Awareness events has come from the Lanier Law Finn and the Texas Young Lawyers Association. the Death ofOralArgument By Patrick F. McCann In recent years, the Courts of Appeals have made, after prodding by The fear of doing harm the defense bar and the general civil bar, significant efforts to revive oral argument after the disastrous implementation of the Texas Rule of Appellate Procedure that made such argument discretionary. However, despite repeated pleas and exhortations that "we really will" grant oral argument, many of those same judges expressed at a recent training some frustration that their offer (and it is a sincere one since I can tell you that in almost 50 percent of the cases where I have asked for it or for a reconsideration it has been granted) has apparently fallen on deaf ears. One court indicated that argument in criminal cases is requested only 20 percent of the time, is granted in half those cases and, yet, more than 40 percent of the time the defense does not show up! So, in the end , they (the Courts, or at least that one) are seeing perhaps one in 20 criminal cases where the appellant's counsel shows up and speaks for his or her client. On the off chance that did not register, let me repeat: one in 20. Oral argument is a perishable skill, one that does not improve by doing it less. If one were trying a case, and in only one in 20 or so cases did one show up for closing argument, one would arguably have done less than commendable service to the client. So, please allow me to make, first , a plea to all who do criminal appeals to reconsider your views and approach on oral argument. Second, let me bere and now make a pledge along with my plea: I will find people to help anyone prepare for argument, for everything from mock oral panels to reviews of the brief by my friends (I know I have one or two somewhere) who are willing to donate time and effort, to suggestions for additional briefing post-submission or thoughts about your best tactics for specific panels from some of the more capable appellate attorneys around. There are people willing and able to help, so please be willing to consider asking tbem, or asking someone to ask them, because this is something that I believe needs to change. Why even do oral argument? The Power of One One voice matters. One opportunity to change one mind matters. There are only three justices on a state panel, and these panels are composed, first and foremost, of human beings who enjoy and respect a well-honed argument as much as anyone else docs. They are people, and if one shows up and delivers, they will listen. Perhaps they will not change a position, but then again,perhaps they will. All it takes is one to sway over to your position, and one has a dissent that may result in re-hearing or discretionary review being granted. The only certain guarantee that one has in thi s business is that if we do not consider it important enough to show up and argue, no one else will listen. One chance e x i s ~ to directly confront those who will decide your client's life...why would we not want the chance to persuade them? What exactly does anyone think will happen at oral argument...that one will perform so badly that the panel will bench warrant your client back to face them and sentence him to more years in prison? Our clients are already convicted ... we are not the danger here, and if anything, we have absolutely nothing to lose by getting a chance to look a justice in the eye and explain why our reasoning is sound and should result in our client's freedom . Who will speak for our clients if not us? We are the last chance our client typically has. We all know the odds of reversal are slim; they are slimmer still when we do not choose to speak for the man or woman whose life is in our hands. For most of their lives, no one has ever spoken to anyone in power for them; we should not add to that list of the silent. We ought, in a better world, to be able to look their mother or wife or child in the eye and say, "\ was there, I stood up, and I spoke for your loved one." It's not much, some days, but it is something. We have all (myself included) complained that the Courts of Appeals have become fairly complacent havens for the State to tum to whenever a trial goes awry. Yet, perhaps we can improve the quality of our advocacy, and, ultimately, the results for those we represent. We have nothing to lose by doing so, and I submit, very respectfully, something quite important to gain. My number for those who take me up on this is listed below, and I hope I can count on you all to return the favor so that together we may change a few minds. Patrick F. McCann is a past president ofHCCLA, an adjunct professor at Texas Southern University, and practices in Houston and Fort Bend County. Those wishing his assistance with oral argument preparation can reach him at 713-223-3805. for HOUSTON CITY COUNCIL DISTRICT A Polilical Ad Paid by the Jeffl)",ningfor Ho,",on OmlBign - Arnmda Dl\\ning, Tre8Slller-I407 c..tin Ho,",on Tr>:a n018 THE DEFENDER Experience. Diversity. Fairness. Mark Diaz understands that what happens inside a criminal courtroom can have dramatic, long-standing effects on an individual's life and future. He recognizes that each case is as uniqueas the peopleinvolved. Heworkstoensure all his clients aretreatedfairly in thecourt oflaw. MarkDiazwantstobringahigherleveloffairnesstotheothersideofthebenchbyworkingto ensureall defendantsreceivefairtreatmentandappropriatesentencing. SupportMarkDiazin his campaign forJudgeCountyCriminal CourtatLaw No. 11. Born and raised in Houston Has successfullypracticedcriminal lawhereformorethat10 years Officer, GalvestonCountyCriminal DefenseLawyersAssociation CertifiedStateBarofTexas 1998 Thurgood Marshall School ofLaw 1998;JurisDoctor AdmittedtopracticeUnitedStatesSouthernDistrict Licensed bytheTexas Real EstateCommissionas a Real Estate Broker Political advertising paid for by the Mark Diaz Campaign , Treasurer, Stacey Doke-Farmilette Investigative Corner: Di9ita1 DNA by Jim Willis THE DEFENDER @ As we continue through the maze that is the information highway, 1want to highlight general topics that may spark some interest in the criminal defense arena. A catchy phrase circulating the investigative world these days is "digital DNA." All the computers, cell devices, external hard drives, flash drives, jump drives, internet servers, iPods, hand held and gaming devices, digital cameras, social pagers, plus many more devices and sites continue to become permanent fixtures in people's everyday life. Each device that we come across has the potential to be a very important piece of evidence in any case. Police investigators are quickly seeking out digital devices on their targets to collect digital DNA to assist them in building stronger cases. Defense lawyers need to know how to manage digital DNA so that it does not become contaminated, destroyed or, worse, used against them in court. Ask your clients about all of their digital devices and then begin to collect each piece. Computer forensics may be an unknown and mysterious discipline to many attorneys, but it is easy to avoid the most common procedural mistakes. First, use a computer forensic examiner and do not rely on your own computer skills. Second, work with your expert to have digital copies made of all data on all devices so that a complete assessment can be made. Your client may state, "I have erased all the images and files." Do not be fooled. Many times deleted data can easily be restored and used as evidence. Last, choose your forensics expert carefully. Ensure that the expert has the technical knowledge, fully understands electronic evidence, and has references. ForensicScience Resources CrimeSceneReconstrucUon FerenslcScienceConsunatlon DNAAnalysISConsunauon CrimeScenelovesduadon BloodstainPanernAnalysis ShoeprlntIdeOUflcatlen HairExaminationConsunauon latemFlngerprlmDevelopment SerologyAnarvsls GeorgeSchiro,MS,FABC ConslHlngFerenslcScientist [33113222124 E-mail:GJschlro@cs.cem As I mentioned in the last Investigative Comer ("The 411 on Cell Phone Records"), you can use cell phones to establish an alibi for your client. Cell phones and cell towers are constantly communicating with each other. Anytime a cell device is used it sends a locating signal to a cell tower. With a properly executed subpoena or court order (and which one you need depends on the cell provider), you can get cell tower data from the carrier. This information will pinpoint a location, usually within a three-mile radius. If there are more than one cell towers in the area, the three-mile radius begins to decrease and the client's exact location can be narrowed. Interpreting the cell tower data may seem complicated at first glance, but with the right assistance it proves to be a valuable investigative tool for you and your client. If you need assistance with the language for the subpoena or the court order, please do not hesitate to contact me. These topics are important for any criminal defense case. 1 have just skimmed the surface when it comes to digital DNA and cell tower information. As you begin to develop your criminal defense theories and find yourself needing additional support, contact your investigator for assistance. In the next Investigative Comer, I will discuss the role ofthe investigator in the criminal defense process. Jim Willis is a private investigator with Benken & Associates. He may be reached at 7J 3-223-4051 andjwillispi@aol.com. PRESORTED STANDARD U.S. POSTAGE PAID HOUSTON,TEXAS PERMIT NO. 11500 THE DEFENDER PO Box 924523 Houston TX 772924523 Ilii,lli lillliiilllillliiiill,lllililllli"il,I"II,11illlii il T.5- ;-3- 0.T G.T -r ??o NS . ""/LIS.1 0 ::- NUS .T C}( f, /''/U'3JCI..:" l...LP ;. .} .o:::;;:'":jri }-iCiU""Tru..J PV!<i" " E STE ... - '.- , --,,,._'_. ' BLACKWOO BAI G MP EDD BLACKWOOD LICENSE 74432 713-222-BAIL Houston/sOldest (2245) HOUSTON,TEXAS77002 WE ALSOPROVIDE COU T Bail BondingCompany 1002NSANJACINTO ServingHouston l OOMASSISTANCE HarrisCountYI All Texas counties l and Nationwidebail bonds