VOICE FOR THE DEFENSE

FOR THE DEFENSE

Volume 37 No 9 | November 2007

In this issue:

::

Weldon Holcomb

August 24, 1925 - September 23, 2007

Eulogy for Weldon, September 27, 2007 by Hon. Sam Griffith

VOICE

You will be considered based on the information you submit. Please be as detailed as possible. Applications must be received by 5:00 pm on February 11, 2008. Mail completed registration form to 1707 Nueces Street, Austin, Texas 78701 or fax to 512.469.0512.

Name ______________________________________________________________________________________________________________ Address _____________________________________________________________________________________________________________ City, State, Zip ______________________________________________________________ Phone _________________________________ Cell____________________________ E-mail _______________________________________________ Fax __________________________ [ Yes, I Would Like to Apply ]

q I would like to attend this training and have enclosed my application, two recommendation letters (Texas or federal judiciary and a TCDLA member) and $100 registration fee. (The $100 registration fee holds your spot pending approval of application.) Enrollment is limited. You will be notified by March 3, 2008.

q I have attended a Criminal Trial College in the past. If so, what year? ________________ [ Trial Experience ] (participants are grouped according to experience)

Please be candid about your trial experience, and do not exaggerate. Number of Trials:

#______Felony Jury #______Felony Non-Jury #______Misdemeanor Jury #______Misdemeanor Non-Jury #______Civil Jury #______Non-Jury

Type of practice and years in practice (general description):

Other Training or Experience:

Law school: Date graduated:

Other trial training courses taken:

Prosecutor: q Yes q No If yes, how long, when did you leave, and what experience did you have?

Public defender: q Yes q No If yes, what office?

Please give any additional information you believe would be helpful in explaining your level of experience:

Why do you want to attend the College? (You may attach additional pages or other information you feel wil help us evaluate your application.)

[ Payment ]

q check (payable to TCDLA) q credit card (visa, mastercard, amex or discover)

_____________________________________________________ _____________________________________________________

name on card signature

_____________________________________________________ _____________________________________________________

credit card number expiration date

[ Registration ]

_{Texas Criminal Trial College}

VOICE for the Defense (ISSN 0364‑2232) is published monthly, except for January/February and July/August, which

are bi‑monthly, by the Texas Criminal Defense Lawyers Association Inc., 1707 Nueces Street, Austin, Texas 78701. Printed in the USA. Basic subscription rate is $40 per year when received as a TCDLA member benefit. Non‑member subscription is $75 per year. Periodicals postage paid in Austin, Texas.

POSTMASTER Send address changes to VOICE for the Defense, 1707 Nueces Street, Austin, Texas 78701. VOICE for

the Defense is published to educate, train and support attorneys in the practice of criminal defense law.

CONTRIBUTORS Send all feature articles to Rebecca Davis, 211 South Rusk Street, Weatherford, Texas 76086, 817.341.4500. Please send all other materials for publication to Emmett Harris, 114 E. North Street, Uvalde, Texas 78801, 830.278.4551 or to VOICE for the Defense, 1707 Nueces Street, Austin, Texas 78701, 512.478.2514, Fax 512.469.9107. E‑mail materials can be sent to [email protected].

Statements and opinions published in the VOICE for the Defense are those of the author and do not necessarily represent the position of TCDLA. No material may be reprinted without prior approval and proper credit to the

:: Contents

:: Features

24 | Weldon Holcomb

29 | Introduction to the United States’

Criminal Justice System

By Judge Jay Karahan

31 |

The Law West (and East) of the Pecos

By Richard L. Ellison

36 |

Motion of the Month

40 | War Story

By Alexander Bunin

52 | Cognitive Psychology of

Circumstantial Evidence Part II

By Kevin John Heller

:: Columns

10 |

President’s Message

14 |

Executive Director’s Perspective

18 |

Editor’s Comment

20 |

Federal Corner

:: Departments

5 |

TCDLA Member Benefits

6 | Staff Directory

7 | CLE Seminars and Events

43 | Significant Decisions Report

PRESIDENT Craig Jett | Dallas PRESIDENT‑ELECT H. F. “Rick” Hagen | Denton FIRST VICE PRESIDENT Stanley Schneider | Houston

SECOND VICE PRESIDENT William Harris | Ft. Worth TREASURER Keith S. Hampton | Austin SECRETARY Lydia Clay‑Jackson | Conroe

DIRECTORS Susan E. Anderson, Dallas Kerri K. Anderson-Donica, Corsicana Robert J. Barrera, San Antonio Samuel E. Bassett, Austin Jason Butscher, Sherman John F. Carroll, San Antonio Dan Cogdell, Houston Paul A. Conner, Fort Worth John A. Convery, San Antonio Kenda Culpepper, Rockwall James O. Darnell, El Paso Danny Easterling, Houston Juan Ramon Flores, Laredo Michael P. Gibson, Dallas Steven R. Green, Athens Michael C. Gross, San Antonio Emmett Harris, Uvalde John R. Heath, Nacogdoches H. Thomas Hirsch, Odessa Lynn Ingalsbe, Abilene Sam H. Lock, San Antonio Constance A. Luedicke, Corpus Christi James Makin, Beaumont Jim W. Marcus, Austin W. Troy McKinney, Houston Bobby D. Mims, Tyler Larry M. Moore, Fort Worth Doug Murphy, Houston John P. Niland, Austin Robert Pace, Tyler

VOICE FOR THE DEFENSE

EDITOR

Emmett Harris

Uvalde, Texas 830.278.4551 [email protected] SIgNIFICANT DECISIONS REPORT EDITOR

Cynthia Hampton

TCDLA Home Office 512.478.2514 [email protected] FEATURE ARTICLES EDITOR

Rebecca Davis

Weatherford, Texas 817.341.4500 [email protected] DESIgN, LAYOUT, EDITINg

Craig Hattersley

TCDLA Home Office 512.478.2514 [email protected]

PRINTINg

Art Jam Productions, Inc.

512.389.1747 [email protected]

Tom Pappas, Dallas William E. Price, Lampasas William H. Ray, Fort Worth George Scharmen, San Antonio Mark S. Snodgrass, Lubbock Fred M. Stangl, Lubbock Grant M. Scheiner, Houston Sheldon Weisfeld, Brownsville Russell Wilson, Dallas Warren Alan Wolf, San Antonio William Reagan Wynn, Fort Worth John S. Young, Sweetwater ASSOCIATE DIRECTORS Stephen U. Baer, Dallas Jaime E. Carrillo, Kingsville Jason D. Cassel, Longview Clay S. Conrad, Houston Darlina C. Crowder, McKinney Harold J. Danford, Kerrville James D. Granberry, Corpus Christi Theodore A. Hargrove, San Angelo Reynaldo M. Merino, McAllen Patrick S. Metze, Lubbock Franklyn R. Mickelsen, Dallas David E. Moore, Longview Shawn W. Paschall, Fort Worth Bruce Ponder, El Paso William A. Vitz, McKinney James P. Whalen, Plano

:: eLawSoftware

15 percent discount to TCDLA members on its Web Based Criminal Defense Client Management software. We provide an all-inclusive client file at your fingertips that also allows you to take control of your collec-tions. With no long term contract to sign, this is a risk free venture in attaining a more efficient and profitable law practice. Contact Bill Baker at 1.800.820.3529 or [email protected]

:: Enterprise Car Rental

10 percent discount for TCDLA members. Enterprise is the largest rental car company in North America in terms of locations and number of cars while providing the highest level of customer service. The corporate ac-count number for TCDLA members is 65TCDLA. You may contact your local office directly or visit www.enterprise.com. When booking ON-LINE, enter your location, date, time and corporate account # 65TCDLA. You will then be asked for your discount ID which is the first three letters of TCDLA (TCD). Make your reservation at Enterprise Rent-A-Car :: La Quinta

10 percent discount to all TCDLA members. Simply tell the reservations agent that you are with the Texas Criminal Defense Lawyers Association or give the discount code (TCDLA) on the La Quinta web site to get the discounted rate. Visit www.lq.com or call 1.800.531.5900.

:: Sprint PCS

15 percent discount to TCDLA members on its wireless services. Existing Sprint customers can receive the discount without interruption and new customers can receive additional discounts on equipment.

1. Dial 888.211.4727.

2. Navigate to live customer service representative. 3. Let customer service representative know you want to be attached to hierarchy account #0042560097 for Texas Criminal Defense Lawyers Association.

:: Subscription Services Inc.

50 percent discount off the cover price of more than 1,000 magazines such as Newsweek, New Yorker, Texas Monthly, etc. Visit www.buymags. com/attorneys.

:: Voice for the Defense Magazine

A subscription to the ONLY state-wide magazine written specifically for defense lawyers, published 10 times a year.

New in 2007 — CDLP’s Capital Litigation Update will be included in Voice for the Defense magazine.

:: Membership Directory (printed and online)

Comprehensive listing of current TCDLA members, updated, reprinted and mailed annually and online directory of current TCDLA members. :: Lawyer Locator

Online directory providing members an opportunity to list up to three areas of practice for public advertising.

:: Expert List

Extensive list of experts for all types of criminal cases, including investiga-tors, mitigation and forensics specialists.

:: Communities (listserv)

A partnership to engage community members in areas of significant decisions, legislative and capital issues/updates, upcoming seminars and events, and more ...

:: TCDLA Discounts

Receive significant discounts on CLE seminars and TCDLA publications.

Discounted liability insurance with Joe Pratt Insurance. :: Strike Force

Strike Force assistance to aid lawyers threatened with or incarcerated for contempt of court.

:: Resources

Expansive library of research papers from renowned criminal defense lawyers.

:: Significant Decisions Report

Professional reports summarizing state and federal cases, emailed weekly. :: Legislature

Opportunities to be involved in the legislative effort. :: State Motions CD

New members will receive a comprehensive cd of state forms and mo-tions including DWI, post trial, pre-trial, and sexual assault momo-tions. :: Membership Certificate

Display your TCDLA membership with pride! New members will receive a personalized certificate by mail.

District 1 West Texas Jim Darnell Mary Stillinger Mike R. Gibson District 2 Permian Basin Tom Morgan Woody Leverett Tip Hargrove Tom Davidson District 3 Panhandle Bill Wischkaemper Warren Clark Chuck Lanehart District 4 North Texas H.R. “Rick” Hagen Randy Wilson Don Wilson District 5 Tarrant County Mark Daniel Lance Evans Jeff Kearney Larry Moore Greg Westfall Amicus Curiae Greg Westfall 817.877.1700 Franklyn Mickelsen 214.720.9552 William Wynn 817.336.5600 Appellate Gary Udashen 214.468.8100 Budget & Finance Keith Hampton 512.476.8484 William Harris 817.332.5575 Child Protective Services Patrick Metze 806.749.8585 Corrections & Parole Committee David O’Neil 936.435.1380 Death Penalty Jim Marcus 512.232.1475 John Niland 512.320.8300 District 6 Dallas County Ron Goranson Bob Hinton Richard Anderson Martin LeNoir Barry Sorrells District 7 Northeast Texas Barney Sawyer Scrappy Holmes Bobby Mims David E. Moore District 8 Central Texas Kerri Donica-Anderson F.R. “Buck” Files District 9 Travis County Betty Blackwell David Botsford Sam Bassett Dexter Gilford David Frank District 10 Bexar County Cynthia Orr John Convery George Scharmen Gerry Goldstein District 11 Hill Country Emmett Harris District 12 Valley Bobby Lerma Sheldon Weisfeld Doug Tinker Joe Connors District 13 Southeast Texas James Makin District 14 Harris County Mac Secrest Danny Easterling Grant Scheiner Stan Schneider Katherine Scardino Jim Lavine JoAnne Musick Nicole Deborde :: CO mm ITTEES :: STRIKE FORCE Driving While Intoxicated J. Trichter 713.524.1010 Lawrence Boyd 214.691.5630 Equal Access to Courthouses Peter Lesser 214.630.3066 Federal Law John Convery 210.738.9060 Hall of Fame E. G. Morris 512.478.0758 Indigent Defense William Harris 817.332.5575 Innocence Jeff Blackburn 806.371.8333 Lawyers Assistance Robert Pace 903.526.6777 Legislative Keith Hampton 512.476.8484 Mark Daniel 817.332.3822 membership Keith Hampton 512.476.8484 Nominating H.F. ‘Rick’ Hagen 940.566.1001 Professional Responsibility W. Troy McKinney 713.951.9994 Public Defenders Susan Anderson 214.653.3550 Publications Michael Gross 210.354.1919 Seminar H.F. Rick Hagen 940.566.1001 Strategic Planning Lydia Clay Jackson 936.760.2889 Stanley Schneider 713.951.9994 Strike Force Samuel Bassett 512.476.4873 Keith Hampton 512.476.8484 Robert Barrera 210.224.5811 Executive Director Joseph Martinez x 26 [email protected]

Assistant Executive Director & general Counsel Cynthia Hampton x 30

[email protected] Chief Financial Officer Tiffany Martin x 27 [email protected]

Director of CLE and Special Events Seminar Information Melissa Schank x 24 [email protected] Database manager Membership Information Miriam Herrera x 32 [email protected] Communications Director Voice Information Craig Hattersley x 33 [email protected] Services Clerk Publication Information Susan Fuller x 22 [email protected] Accountant Judy Gonzalez x 25 [email protected] Seminar Planning Assistant Denise Garza x 29 [email protected] Administrative Assistant Diana Vandiver x 21 or 0 [email protected] Capital Assistance Attorney Philip Wischkaemper 806.763.9900 [email protected] :: STAFF DIRECTORY :: CONTACT US

Austin Home Office

1707 Nueces Street Austin, TX 78701 512.478.2514 phone 512.469.9107 main fax 512.469.0512 seminar fax Lubbock Office 915 Texas Ave. Lubbock, TX 79401 806.763.9900 phone 806.769.9904 fax

:: November

November 15-16, 2007

CDLP | Capital Murder South Padre Island, TX

:: December

December 6-7, 2007 TCDLA | Voir Dire Dallas, TX

December 8, 2007

TCDLA, CDLP, TCDLEI Board Meetings** Dallas, TX December 14, 2007 CDLP | Advanced Trial Series Tyler, TX :: January January 3-4, 2008 CDLP | 28th Annual Prairie Dog Lawyers Seminar | co-sponsored with the Lubbock Criminal Defense Lawyers Association Lubbock, TX

January 12-13, 2008

CDLP | Innocence Law Clinic Training Dallas, TX January 18, 2008 CDLP | Advanced Trial Series Abilene, TX January 25, 2008 CDLP | Advanced Trial Series Waco, TX :: February February 7-8, 2008 CDLP | Capital, Mental Health and Habeas Seminar San Antonio, TX February 8, 2008 TCDLA | David Burrows Presents DWI Winning Edge | co-sponsored with Center for American and International Law Plano, TX February 22, 2008 CDLP | Advanced Trial Series Laredo, TX :: march March 6-7, 2008

TCDLA | Federal Law New Orleans, Louisiana March 8, 2008

TCDLA, CDLP, TCDLEI Board Meetings** New Orleans, Louisiana

March 28-29, 2008

CDLP | 45th A.A. Annual Semaan Seminar | co-sponsored with San Antonio Bar Association San Antonio, TX

March 27-29, 2008

15th Annual Mastering Scientific Evidence in DUI/DWI Cases Sponsored with National College for DUI Defense

Dallas, TX March 30-April 4, 2008 CDLP | 32nd Annual Texas Criminal Trial College Huntsville, TX :: April April 18, 2008 CDLP | Advance Trial Series Del Rio, TX April 24-26, 2008 Jazz Fest

Sponsored by Louisiana Criminal Defense Bar Association New Orleans, Louisiana

:: may May 6-7, 2008 CDLP | Indigent Defense El Paso, TX May TBD CDLP | Communicating with Juries, with Josh Karton | co-sponsored with the Harris County Criminal Lawyers Association Houston, TX May 16, 2008 CDLP | Indigent Defense Dallas, TX :: June June 25, 2008 CDLP | Indigent Defense San Antonio, TX June 26-28, 2008 21st Annual Rusty Duncan Advance Criminal Law Course

San Antonio, TX

:: July

July 10-11, 2008

CDLP | Advanced Trial Series South Padre Island, TX July 12, 2008

TCDLA, TCDLEI, CDLP | Board Orientation

South Padre Island, TX

*Unless otherwise noted, seminars are open only to criminal defense attorneys, mitigation specialists, defense investiga-tors, or other professionals who support the defense of criminal cases. Law en-forcement personnel and prosecutors are not eligible to attend.

** Open to all members

register at www.tcdla.com

Do

YOU

want to

make a difference?

VOLUNTEER

to serve on the TCDLA board

Any member of TCDLA in good standing who desires to make application to serve on the TCDLA board of directors should fill out the application on the opposing page and forward it to the TCDLA home office at 1707 Nueces Street, Austin, Texas 78701, or fax it to 512.469.9107 on or before November 16, 2007. The Nominations Committee listed below will consider applications nominating new board members on December 8, 2007 at our quarterly board meeting in Dallas.

Please help us continue to try to slow the “freight train” running roughshod over the rights of our citizens. We need dedicated members who will not only work hard for TCDLA, but will infuse new blood and ideas into the association. District 1 Thomas Hughes : El Paso District 2 Tip Hargrove : San Angelo District 3 Mark Snodgrass : Lubbock District 4 Randy Wilson : Abilene District 5 Mark Daniel : Fort Worth District 6 Bob Hinton : Dallas District 7 Scrappy Holmes : Longview President : District 1 Craig Jett : Dallas President Elect : District 4 H.F. “Rick” Hagen : Denton 1st Vice President : District 14 Stanley Schneider : Houston District 8 Stan Schwieger : Waco District 9 Betty Blackwell : Austin District 10 Michael Gross : San Antonio District 11 Robert “Bobby” Lerma : Brownsville District 12 Emmett Harris : Uvalde District 13 Lydia Clay-Jackson : Conroe District 14 Grant Scheiner : Houston

Nominations Committee

TCDLA Officers*

2nd Vice Chair : District 5 William Harris : Fort Worth Treasurer : District 9 Keith Hampton : Austin Secretary : District 13 Lydia Clay-Jackson : Conroe

Do

YOU

want to

make a difference?

VOLUNTEER

to serve on the TCDLA board

Any member of TCDLA in good standing who desires to make application to serve on the TCDLA board of directors should fill out the application on the opposing page and forward it to the TCDLA home office at 1707 Nueces Street, Austin, Texas 78701, or fax it to 512.469.9107 on or before November 16, 2007. The Nominations Committee listed below will consider applications nominating new board members on December 8, 2007 at our quarterly board meeting in Dallas.

Please help us continue to try to slow the “freight train” running roughshod over the rights of our citizens. We need dedicated members who will not only work hard for TCDLA,

but will infuse new blood and ideas into the association.

Nominations Committee

Craig Jett

DO THE RIGHT THING

::

President’s

Message

“Do the right thing.” We have all heard and said this many times. Often, there is not much disagreement over what is the “right thing.” We usually apply common sense, conventional wisdom or obviously morality. Doing the right thing is basic, fundamental and expected.

While there is great disagreement about whether there should be a death penalty, there is virtually no debate as to whether substantial due process should be guaranteed to anyone whose life is subject to forfeit by the State. Because of our respect for life and liberty and the finality of the death penalty, we provide extraordinary due process for a defendant in a death penalty case. While we can certainly provide more and better process, as a society, we have decided that the State can not take a life except according to the rule of law. We may disagree as to what that rule of law should be, but the conventional morality is that life can not be taken by the State, other than according to the law. That law is determined by a complex process of public debate, legislative action and judicial oversight. At its fundamental level, we would not have it any other way. It is accepted that following the law is doing the right thing.

On the morning of September 25, 2007, the United States Supreme Court granted certiorari in Baze v. Rees, No. 07-5439, a Kentucky case, and thereby agreed to consider whether execution by lethal injection constitutes cruel and unusual punishment. Texas carries out its death sentences by lethal injection similar to that used in Kentucky. Michael Richard was due to be executed at 6:00 p.m. on September 25, 2007, just a few hours after the Supreme Court agreed to hear Baze vs. Rees. Richard was represented by lawyers of the Texas Defender Service (“TDS”). Upon hearing about the Baze decision, TDS lawyers began to analyze and consider how their client’s case may be affected by the Supreme Court’s decision. They determined that they must seek a ruling from the Texas Court of Criminal Appeals on a request to stay execution before any relief could be sought in the United States Supreme Court.

The lawyers at TDS drafted pleadings directed to the district court, the Texas Court of Criminal Appeals and the United States Supreme Court. During the process of drafting the necessary pleadings, TDS experienced computer server failure. That there were computer

problems was communicated to the Court of Criminal Appeals’ chief deputy clerk at about 3:00 p.m. on September 25. At about 4:45 that afternoon, Court of Criminal Appeals general counsel Ed Marty learned that Richard’s attorneys had requested that the Court remain open in order to receive their filing. He had been told about the computer problems. Richard’s attorneys asked that the clerk’s office stay open twenty to thirty more minutes after 5:00 so their pleadings could be filed. That request was relayed to Presiding Judge Sharon Keller, who responded that it was the Court’s policy to close at 5:00 p.m. Judge Keller made this decision despite the fact that another judge was assigned to the execution and that other judges were present at the Court and available to hear any requests. No other judge was consulted about the Court’s “policy.” Michael Richard was executed that evening even though the United States Supreme Court’s grant of certiorari raised serious concerns as to whether his execution by lethal injection would violate the Eighth Amendment’s prohibition of cruel and unusual punishment, and was thus illegal. Michael Richard was put to death because one judge decided that twenty minutes was more important than the sanctity of life, the rule of law and the integrity of the Texas judicial system. Somehow, somewhere, Judge Keller lost the lesson of doing the right thing. Unfortunately, there seems a lot of that going around.

In Houston, District Judge Don R. Stricklin signed a pre-trial order requiring that at least ten days before trial a prosecutor give defense counsel all videos containing the defendant’s voice. Immediately before the trial’s punishment phase, defense counsel learned that the prosecutor had such a video even though, the evening before, the prosecutor had told defense counsel the only evidence she had for the punishment phase of the trial was “judgments and sentences” in the defendant’s prior convictions. Minutes before the punishment phase began the prosecutor informed defense counsel of her intent to offer the video, but only after defense counsel had inquired about the presence of a police officer in the courtroom. The prosecutor informed the trial judge and defense counsel that the officer was there to testify the video was a fair and accurate depiction. Outside the presence of the jury, defense counsel objected to the admission of the video, pointing out to the judge that the prosecutor had violated the discovery order by failing to allow the defense ten days to inspect the video. In response the prosecutor stated there was no reference in the court’s order to Tex. Code Crim. Proc. Art. 37.07 § 3(g), and therefore she did not violate the court’s order. The trial judge overruled the defense objection to the admission of the video and also denied the defense request for a recess so that he could inspect the video and prepare his strategy. The defendant was

sentenced to five years imprisonment and a five thousand dollar fine. On appeal, the First Court of Appeals affirmed the conviction, holding that it could not “conclude that the State’s Article 37.07, Section 3(g) explanation is meritless on its face.” Oprean v. State, No. 01-00461-CR, 2005 WL 568291(Tex. App. – Houston [1st _{Dist.] 2005) (not designated for publication).}

The Court of Criminal Appeals granted Oprean’s petition for discretionary review. The Court found that the trial judge’s order “unambiguously directed the state to disclose ten days before trial the very item introduced into evidence. The plain wording of the order is clear to anyone who can read.” Oprean v. State, 201 S.W. 3d 724, 727 (Tex. Crim. App. 2006). The Court found two unacceptable things about the prosecutor’s conduct. First, the prosecutor told defense counsel the night before that she intended only to introduce judgments and sentences from the previous convictions and there was no suggestion that later that night or early the next morning she suddenly discovered the video tape’s existence. Second, “[b]ecause the prosecutor knew about the discovery order and chose to invoke Article 37.07 after counsel called her attention to the order, she made a conscious decision to violate the plain directive of the discovery order.” Id. at 728. Judge Keasler, writing for the court, stated “we find that the trial judge abused his discretion in admitting the video tape over defense counsel’s objection. The record reveals that . . . the prosecutor’s conduct here was a calculated effort to frustrate the defense. Because intent is inferred from acts done and words spoken, we have considered the prosecutor’s statements and actions in finding her conduct to be willful.” Id. The judgment of the Court of Appeals was reversed and the case remanded to that court for a harm analysis.

In Panetti v. Quarterman, __U.S.__,127 S.Ct. 2842, 168 S.W.3d 662 (2007), the Petitioner claimed he was incompetent to be executed because of his mental illness. In its opinion, the Supreme Court reviewed the proceedings below to determine whether the state court provided the minimum process to Panetti. The Supreme Court found as follows:

The state court refused to transcribe its proceedings, not withstanding the multiple motions petitioner filed requesting this process. To the extent a more complete record may have put some of the court’s actions in a more favorable light, this only constitutes further evidence of the inadequacy of the proceedings. Based on the materials available to this court, it appears that the state court

exceptions, each of the states objections were sustained while each of the defense objections were overruled. . . . We are further unable to reconcile the stated concern for costs with the trial judge’s refusal to allow Abdygapparova the use of an interpreter, who was sitting in a local hotel room at State’s expense waiting to be called by the trial court. This is clearly a case in which the absence of an impartial judge on the bench infected the entire trial process, robbing Abdygapparova of her basic protections and undermining the ability of a criminal trial to reliably serve its function as a vehicle for the determination of guilt or innocence.

Id. at *14. The Court found the violation of the Defendant’s right to an impartial judge was structural error, so a harm analysis was not warranted. The judgment was reversed and the case remanded for a new trial.

Our clients become our clients because they have, or someone contends they have, done the wrong thing and violated the law. Somehow, in each of the above cases a judge and/or a prosecutor violated the law, a legal duty or an ethical duty, in the process of prosecuting a human being, and apparently thought it was just okay to do so. Not only did the enforcers, and the supposedly impartial arbiters of the law, violate the most fundamental tenets of our law, they seemingly acted without reference to fundamental standards of morality. They failed the “right thing” test. We and our clients are often told by judges and prosecutors to do the right thing. They need to listen to and comply with their own admonition. We all should “do the right thing.” It is not that hard.

on repeated occasions conveyed information to petitioner’s counsel that turned out not to be true; provided at least one significant update to the state without providing the same notice to petitioner; and failed in general to keep petitioner informed as to the opportunity, if any, he would have to present his case. There is also a strong argument the court violated state law by failing to provide a competency hearing.

Panetti, supra at 2856-57.

In Abdygapparova v. State, __S.W.3d__, 2007 WL 3005280 (Tex. App. No. 04-05-0-0321-CR – San Antonio, October 17, 2007), the Defendant contended that the trial judge displayed such bias and prejudice against her that it violated her right to an impartial judge. The Court of Appeals found the trial judge engaged in ex parte communications with the prosecutor by passing notes back and forth “regarding potential jurors, defense counsel’s voir dire questions and presentation of argument all in the presence of the potential jurors[.] . . .

The secretive nature and content of the ex parte notes show a bias on the part of the trial court to favor the prosecution, even going so far as to make recommendations on the presentation of its case. As such, the trial judge became an advocate for the state, and an opponent of the defense, in direct conflict with their judicial requirement of absolute impartiality, precluding Abdygapparova from receiving fair and impartial trial.

The Court went on to state:

[A] complete review of the record reveals more than simple hostility by the trial court towards Abdygapparova and her defense counsel and demonstrated an on going, continuous bias or prejudice. From the initial motion for continuance filed by Abdygapparova’s newly retained counsel, the trial judge made her displeasure known to the litigants. Her negative comments, which formed the basis of the initial motion to recuse, were insufficient to conclusively establish bias at that point in the trial but clearly evidenced a negative attitude toward Abdygapparova. Out of the hundreds of objections lodged during trial, with very few

Study Outline for Board Specialization Exam

By: Susan Anderson

November 2007 VOICE FOR THE DEFENSE 13

Federal Law at the French Quarter

March 6&7, 2008 — Hotel Monteleone — New Orleans

Hotel Monteleone l 214 Royal Street, New Orleans, Louisiana 70130 l 504.523.3341

Register online: www.tcdla.com

agenda

Please print clearly.

Attendee Name ______________________________________________________________ Bar Number__________________ Street Address ____________________________________________________________ City ___________________________ State ___________ Zip___________County_________ Email ____________________________________________________ Phone _______________________________________ Fax_______________________________________________________

Cancellations

To receive a full refund, cancellations must be made in writing 8 business days prior to the program. Refund requests that are received after date will be assessed a $50 cancellation fee. No refunds will be given on or after September 7, 2005, but you will receive the course materials.

Tax Notice

$36 of your annual dues ($19 if a Student Member) is for a one-year subscription to the VOICE for the Defense. Dues to TCDLA are not deductible as a charitable contribution but may be deducted as an ordinary business expense. The non-deductible portion of regular and initial membership dues is $39, in accordance with IRC sec. 6033.

Federal Law at the French Quarter

March 6&7 2008 — Hotel Monteleone — New Orleans

Texas Criminal Defense Lawyers Association 2005 Federal Law Fall Conference Hotel Monteleone l 214 Royal Street, New Orleans, Louisiana 70130 l 504.523.3341

Mail registration to 1707 Nueces St., Austin, Texas 78701, or fax to 512.469.0512 Questions? Email [email protected] or call 512.478.2514 l CONFIRMATION WILL BE FAXED

Membership Fees

Renew your membership or join as a new member; separate check payable to TCDLA

q New member (*see below)...$75 q Renew membership...$150 *TCDLA New Membership

To sign up as a new member you will need a nominating endorsement from a current TCDLA member:

As a current member of TCDLA, I believe this applicant to be a person of professional competency, integrity, and good moral character. The applicant is licensed to practice law in Texas and is engaged in the defense of criminal cases (unless a student or affiliate applicant). TCDLA Member’s Name (please print)___________________________________________________________________________ TCDLA Member’s Signature____________________________________________________________________________________

Payment Options

q Check enclosed (payable to TCDLA)

q Visa q Mastercard q American Express q Discover

__________________________________________________________________________________________________________

Credit Card Number Expiration Date

__________________________________________________________________________________________________________

Name on Card Signature

Registration Fees

by August 20 after August 20

TCDLA Current/New Member/Judge

q Registration with book and cd (must be ordered by August 20) $350 $400 (CD only) Non-Member Registration Fees

q Registration with book and CD (must be ordered by August 20) $525 $575 (CD only)

Can’t attend? Buy the materials

(shipping and sales tax included in total)

q Printed book/member...$100 q CD/member...$50 q Printed book/non-member...$175 q CD/non-member...$100

NOTE: Supplies are limited. Seminar books and CDs must be ordered by August 20, 2005.

agenda

Time CLE Topic Speaker

0:00 am Registration

8:15 am Opening remarks Richard A. Anderson Virginia Schlueter 8:30 am 1.0 Hot Issues on Appeal—How to Preserve and Protect Jason Hawkins

Jerry Beard 9:00 am Innovative Pretrial Motions for Judges Who Profess to Read Mike Heiskell 9:30 am 1.0 Protect Act; Adam Walsh; SORNA—Proof That Sex Is Dirty Only If You Sara Noonan

Do it Right Anne Blanchard 10:00 am Guns, Drugs, and Aliens—The Federal Reality Show Jose Gonzalez-Falla 10:45 pm 1.0 Patriot Act: A Clarion Call for Honest Patriotism Tim Evans 11:45 am Internet Crimes—For Those Who Don’t Want to Leave Home to Offend G. Patrick Black 12:15 pm Lunch

1:45 pm Search Me, Seize Me, Squeeze Me—The Principle Formerly Known as Gerry Goldstein the Fourth Amendment

2:30 pm Guidelines, Departures and Variances—Sentencing or Shipping Marjorie Meyers 3:15 pm Break

3:30 pm Ethics—Setting Fees, Avoiding Conflicts, Joint Defense Agreements, and David Botsford Dealing with Co-Defendants

4:15 pm What You Need to Know About a Jury in 15 Minutes or Less David Guinn 4:45 pm Federal Trials—A Lifetime of Experience in Stories That Need to Be Told Doug Tinker

0:00 am Registration

0:00 am Opening remarks

8:30 am Fifth Circuit—Year to Date and Crystal Ball Tim Crooks 9:00 am Expert and Summary Witnesses—Making the Rules More Chuck Meadows

Than a Speedbump

9:30 am Supreme Court Year to Date and Crystal Ball Prof. Edwin Chemerinsky 10:30 am Break

10:45 am Strategy—If Not a Grand Jury, at Least a Reasonable One Michael P. Gibson 11:15 am Harry Potter Isn’t the Only One Who Can Handle a Snitch Kent Schaffer 11:45 am Strategy—When the Prosecution Has the Box, Do Your Thinking Outside Jim Boren 12:15 pm The Sentencing Memorandum—The Advocate’s Hammer Marlo Cadeddu 12:45 pm Opening Statement—Use It or Lose It Jeff Kearney 1:15 pm Adjourn

Friday, March 7, 2008

Thursday, March 6, 2008

March 6, 2008

March 7, 2008

agenda

Please print clearly.

Attendee Name ______________________________________________________________ Bar Number__________________ Street Address ____________________________________________________________ City ___________________________ State ___________ Zip___________County_________ Email ____________________________________________________ Phone _______________________________________ Fax_______________________________________________________

Cancellations

To receive a full refund, cancellations must be made in writing 8 business days prior to the program. Refund requests that are received after date will be assessed a $50 cancellation fee. No refunds will be given on or after September 7, 2005, but you will receive the course materials.

Tax Notice

$36 of your annual dues ($19 if a Student Member) is for a one-year subscription to the VOICE for the Defense. Dues to TCDLA are not deductible as a charitable contribution but may be deducted as an ordinary business expense. The non-deductible portion of regular and initial membership dues is $39, in accordance with IRC sec. 6033.

Federal Law at the French Quarter

March 6&7 2008 — Hotel Monteleone — New Orleans

Texas Criminal Defense Lawyers Association 2005 Federal Law Fall Conference Hotel Monteleone l 214 Royal Street, New Orleans, Louisiana 70130 l 504.523.3341

Mail registration to 1707 Nueces St., Austin, Texas 78701, or fax to 512.469.0512 Questions? Email [email protected] or call 512.478.2514 l CONFIRMATION WILL BE FAXED

Membership Fees

Renew your membership or join as a new member; separate check payable to TCDLA

q New member (*see below)...$75 q Renew membership...$150 *TCDLA New Membership

To sign up as a new member you will need a nominating endorsement from a current TCDLA member:

As a current member of TCDLA, I believe this applicant to be a person of professional competency, integrity, and good moral character. The applicant is licensed to practice law in Texas and is engaged in the defense of criminal cases (unless a student or affiliate applicant). TCDLA Member’s Name (please print)___________________________________________________________________________ TCDLA Member’s Signature____________________________________________________________________________________

Payment Options

q Check enclosed (payable to TCDLA)

q Visa q Mastercard q American Express q Discover

__________________________________________________________________________________________________________

Credit Card Number Expiration Date

__________________________________________________________________________________________________________

Name on Card Signature

Registration Fees

by August 20 after August 20

TCDLA Current/New Member/Judge

q Registration with book and cd (must be ordered by August 20) $350 $400 (CD only) Non-Member Registration Fees

q Registration with book and CD (must be ordered by August 20) $525 $575 (CD only)

Can’t attend? Buy the materials

(shipping and sales tax included in total)

q Printed book/member...$100 q CD/member...$50 q Printed book/non-member...$175 q CD/non-member...$100

NOTE: Supplies are limited. Seminar books and CDs must be ordered by August 20, 2005.

agenda

Time CLE Topic Speaker

0:00 am Registration

8:15 am Opening remarks Richard A. Anderson Virginia Schlueter 8:30 am 1.0 Hot Issues on Appeal—How to Preserve and Protect Jason Hawkins

Jerry Beard 9:00 am Innovative Pretrial Motions for Judges Who Profess to Read Mike Heiskell 9:30 am 1.0 Protect Act; Adam Walsh; SORNA—Proof That Sex Is Dirty Only If You Sara Noonan

Do it Right Anne Blanchard 10:00 am Guns, Drugs, and Aliens—The Federal Reality Show Jose Gonzalez-Falla 10:45 pm 1.0 Patriot Act: A Clarion Call for Honest Patriotism Tim Evans 11:45 am Internet Crimes—For Those Who Don’t Want to Leave Home to Offend G. Patrick Black 12:15 pm Lunch

1:45 pm Search Me, Seize Me, Squeeze Me—The Principle Formerly Known as Gerry Goldstein the Fourth Amendment

2:30 pm Guidelines, Departures and Variances—Sentencing or Shipping Marjorie Meyers 3:15 pm Break

3:30 pm Ethics—Setting Fees, Avoiding Conflicts, Joint Defense Agreements, and David Botsford Dealing with Co-Defendants

4:15 pm What You Need to Know About a Jury in 15 Minutes or Less David Guinn 4:45 pm Federal Trials—A Lifetime of Experience in Stories That Need to Be Told Doug Tinker

0:00 am Registration

0:00 am Opening remarks

8:30 am Fifth Circuit—Year to Date and Crystal Ball Tim Crooks 9:00 am Expert and Summary Witnesses—Making the Rules More Chuck Meadows

Than a Speedbump

9:30 am Supreme Court Year to Date and Crystal Ball Prof. Edwin Chemerinsky 10:30 am Break

10:45 am Strategy—If Not a Grand Jury, at Least a Reasonable One Michael P. Gibson 11:15 am Harry Potter Isn’t the Only One Who Can Handle a Snitch Kent Schaffer 11:45 am Strategy—When the Prosecution Has the Box, Do Your Thinking Outside Jim Boren 12:15 pm The Sentencing Memorandum—The Advocate’s Hammer Marlo Cadeddu 12:45 pm Opening Statement—Use It or Lose It Jeff Kearney 1:15 pm Adjourn

Friday, March 7, 2008

Thursday, March 6, 2008

Joseph A martinez

::

Executive

Director’s

Perspective

Special Thanks

Mr. Weldon Holcomb, Past President of TCDLA and General Counsel Emeritus, Hall of Fame Member, and lawyer extraordinaire, passed away on September 23, 2007. I know all members join the Board in offering our deepest condolences to the Holcomb family. TCDLA will host a memorial program honoring Weldon in December in conjunction with the quarterly Dallas Board meeting.

Special thanks to:

•   Kameron Johnson and Linda Icenhauer-Ramirez, course directors for the  second Defending Juveniles seminar held in Austin. Because of the great response to this course, as well as the need for training in this ever-changing area of the law, TCDLA intends to continue our juvenile law CLE events. •   Rob Cowie, Bill Harris, EX Martin, Larry Renner, Stan Schneider, Dr. Fred 

Whitehurst and Philip Wischkaemper, our course directors for the 5th _Annual

Forensic seminar in Dallas. This year we had 37 forensic specialists who presented to almost 200 lawyers. This seminar is funded by the CDLP grant from the Texas Court of Criminal Appeals.

Please make plans to join us in Dallas on December 6-7, 2007, for the first (at least in recent history) Voir Dire seminar. Randy Wilson, Darlina Crowder and Bill Harris have put together an outstanding lineup of lawyers who will demonstrate their voir dire techniques. This seminar is a “must” for those lawyers new to the practice, or for those just wishing to brush up on their skills. Come learn voir dire from some of the best lawyers in the state, then party with us on Friday night at our annual holiday soirée, co-hosted by the Dallas Criminal Defense Lawyers Association.

We are seeking any and all information regarding the first Advanced Criminal Law Short Course (predecessor to our annual Rusty Duncan event) held in Fort Worth at the Worthington Hotel in June 1988. If you have any information please call Joseph Martinez at the home office.

Thanksgiving holiday is approaching. I want to thank all our TCDLA members for their support in the past year. Thanks to all of you have made TCDLA the outstanding leader in being the voice for criminal defense lawyers in Texas. I also want to thank the TCDLA Board members, TCDLEI Board members, TCDLA Executive committee, CDLP Committee, and all for the other chairs and committee members for their leadership and their outstanding sense of duty to justice. I also want to thank the all of the TCDLA staff for their commitment to excellence and going that extra mile for our members.

November 2007 VOICE FOR THE DEFENSE 15

Texas Criminal Defense Lawyers Association 1707 Nueces Street

Austin, Texas 78701

PRESORTED FIRST CLASS MAIL

U.S. POSTAGE PAID PERMIT NO.2569

AUSTIN, TEXAS

www

n n

com

texas criminal

defense

lawyers association

darlina crowder

n

william harris

n

randy wilson

ov

ervie

w

You’ve asked for it and here it is . . . a seminar devoted entirely to voir dire.

This course is a must for any attorney who tries criminal cases. Featuring a lineup of top criminal defense attorneys from the state of Texas, this intensive seminar will provide demonstrations of a variety of voir dire techniques and case subjects, detailed instruction on how to conduct jury selection, discussion and examples of voir dire strategies and

tools, and Q & A and networking with the speakers after their presentations.

Demonstrations of voir dire examination are tailored toward specific types of criminal cases and performed by leading attorneys from across the state of Texas. Voir dire for criminal defense attorneys is a unique opportunity to learn jury

selection from the leaders of the Texas criminal defense bar an

d will benefit both the newcomer and veteran alike.

This program is accredited for 13.0 CLE hours, no ethics. Credit for attendance may be utilized toward the CLE requirements for certification and recertification of attorneys in criminal law by the Texas Board of Legal Specialization

and towards the total CLE requirements of the State Bar of Texa

s.

location

Doubletree Hotel Dallas-Campbell Centre located at 8250 North Central Expressway in Dallas, Texas. Room rates include $99 single or double occupancy. Call 214.691.8700 to make a reservation, mention TCDLA to receive the

special group rate.

Hotel deadline is November 27, 2007, upon availability.

agenda

information

v

oir

dir

e

v

oir

dir

e

dallas, texas

n

december 6–7, 2007

Thursday, December 6 7:30 am Registration 8:15 am Opening Remarks 8:30 am

Lecture: How to Prepare for Voir Dire

n

Larry Moore

9:30 am

Lecture: Methods of Voir Dire

n

Robert Hirschhorn

10:30 am

Break

10:45 am

Demonstration: Aggravated Assault with

a Deadly Weapon or on a Public Servant

n

Jack Zimmermann

11:45 am

Lunch On Your Own

1:15 pm

Demonstration: Injury to a Child

n

Dan Hurley

2:15 pm

Demonstration: Murder with

a Self Defense Issue

n

Mark Daniel

3:15 pm

Break

3:30 pm

Demonstration: Family Violence

n

Betty Blackwell

4:30 pm

Demonstration: Possession of a

Controlled Substance (House Search)

n Bobby Mims 5:30 pm Adjourn 6:00 pm D a lla s C o un ty C rim in a l D e fe ns e A ss o c ia tio n Christmas Party n

Ozona’s Grill and Bar

Friday, December 7 7:30 am Registration 8:15 am Opening Remarks 8:30 am Dem onst rat ion: A ggr avat ed Sexual A buse of a Child n Jeff Kearney 9:30 am

Demonstration: Organized Criminal

Activity or Theft by Fraud

n

Mac Secrest

10:30 am

Break

10:45 am

Demonstration: Traffic Stop Possession of

a Controlled Substance

n

Rick Hagen

11:45 am

Lunch On Your Own

1:3 0 p m D e m o ns tra tio n: D W I w ith o ut a B re a th Te st n John Gioffredi 2:30 pm Break 2:45 pm

Demonstration: Intoxication Manslaughter

n Tim Evans 3:45 pm Demonstration: DWI n Chris Hoover 4:45 pm Adjourn

you ask

ed f

or it ... her

e it is!

tcdla

tcdla

Texas Criminal Defense Lawyers Association 1707 Nueces Street

Austin, Texas 78701

PRESORTED FIRST CLASS MAIL

U.S. POSTAGE PAID PERMIT NO.2569

AUSTIN, TEXAS

www

n n

com

texas criminal

defense

lawyers association

darlina crowder

n

william harris

n

randy wilson

ov

ervie

w

You’ve asked for it and here it is . . . a seminar devoted entirely to voir dire.

This course is a must for any attorney who tries criminal cases. Featuring a lineup of top criminal defense attorneys from the state of Texas, this intensive seminar will provide demonstrations of a variety of voir dire techniques and case subjects, detailed instruction on how to conduct jury selection, discussion and examples of voir dire strategies and

tools, and Q & A and networking with the speakers after their presentations.

Demonstrations of voir dire examination are tailored toward specific types of criminal cases and performed by leading attorneys from across the state of Texas. Voir dire for criminal defense attorneys is a unique opportunity to learn jury

selection from the leaders of the Texas criminal defense bar an

d will benefit both the newcomer and veteran alike.

This program is accredited for 13.0 CLE hours, no ethics. Credit for attendance may be utilized toward the CLE requirements for certification and recertification of attorneys in criminal law by the Texas Board of Legal Specialization

and towards the total CLE requirements of the State Bar of Texa

s.

location

Doubletree Hotel Dallas-Campbell Centre located at 8250 North Central Expressway in Dallas, Texas. Room rates include $99 single or double occupancy. Call 214.691.8700 to make a reservation, mention TCDLA to receive the

special group rate.

Hotel deadline is November 27, 2007, upon availability.

agenda

information

v

oir

dir

e

v

oir

dir

e

dallas, texas

n

december 6–7, 2007

Thursday, December 6 7:30 am Registration 8:15 am Opening Remarks 8:30 am

Lecture: How to Prepare for Voir Dire

n

Larry Moore

9:30 am

Lecture: Methods of Voir Dire

n

Robert Hirschhorn

10:30 am

Break

10:45 am

Demonstration: Aggravated Assault with

a Deadly Weapon or on a Public Servant

n

Jack Zimmermann

11:45 am

Lunch On Your Own

1:15 pm

Demonstration: Injury to a Child

n

Dan Hurley

2:15 pm

Demonstration: Murder with

a Self Defense Issue

n

Mark Daniel

3:15 pm

Break

3:30 pm

Demonstration: Family Violence

n

Betty Blackwell

4:30 pm

Demonstration: Possession of a

Controlled Substance (House Search)

n Bobby Mims 5:30 pm Adjourn 6:00 pm D a lla s C o un ty C rim in a l D e fe ns e A ss o c ia tio n Christmas Party n

Ozona’s Grill and Bar

Friday, December 7 7:30 am Registration 8:15 am Opening Remarks 8:30 am Dem onst rat ion: A ggr avat ed Sexual A buse of a Child n Jeff Kearney 9:30 am

Demonstration: Organized Criminal

Activity or Theft by Fraud

n

Mac Secrest

10:30 am

Break

10:45 am

Demonstration: Traffic Stop Possession of

a Controlled Substance

n

Rick Hagen

11:45 am

Lunch On Your Own

1:3 0 p m D e m o ns tra tio n: D W I w ith o ut a B re a th Te st n John Gioffredi 2:30 pm Break 2:45 pm

Demonstration: Intoxication Manslaughter

n Tim Evans 3:45 pm Demonstration: DWI n Chris Hoover 4:45 pm Adjourn

you ask

ed f

or it ... her

e it is!

tcdla

tcdla