19, 12, OCTOBER 1990 @ VOLUMF. NO. 1 FOR THE DEFENSE JOURVAL OF THETEXAS CRIMLNAL DEFENSE IAWYUI. ASSOMJATION CONTENTS

is I@- Features in. - ip- 7 Mike DeGeutin: Outstanding Criminal Defense Lawye1 1989-90 30; by Tim Euam in- i? D.U.I.D. Defense Technics: D.U.I.D. Comes to Life in Texas (T Dy Koy 1: Rages, Jr. e., 9 The Legality of the Ptosecittion's Theory in State v. Mattox T' by \V. Robert Gmj~ 11 ObjectionePart 3 by Justice Wlz& i%ol?~llsa~td I'r0f&S0~M~7/i,12~/61 ~EJ~I?~o~%? 14 Search and Seizure-Part 3 by CCariifire Greene Blrr17elt 17 Bank Fraud-Part 3 b31James C. SIIbIIlos and R~rsseIIR. Olioer

3 P~esidenfsColumn 21 Federal Impact Decisions Ly TfmEuam by Charles BInu crnd Keuin CQ//~S 4 Editor's Column-The Marion 25 Granted Petitions for Bar~yVoir DilePart 2 Discretionary Review '6y Kerq P. PitzGer@Id 24 D\Vl P~acticeGems 5 In and Around Texas byJ. Gdiy Tricjler hy John Bostoir 27 Fotrnsic DNA P~ofiling by Jl~aitil.lmIiwz Gortrnks -News 39 Tentative CDLPf l'CDLA 27 Nominating Con~mitteeof the Seminar Schedule TCDLA 1991 Board of Directors

Lawver's Assistance Committee Members

District 1: Jack strickland District 6: Charles Rittenberrg 500 blain St, Ste 201 Robert Y'mguIme 5W Pisk Btnldmg ~ortWmh Texts 76102 821 Nolma Amanilo, Texas 79101 (8171338-1h bldlen, Texas 78501 (8961372-I217 District 4: (512M2 43m Wark Hall Elred R. "Buck" Flles, Jr. Douglas Tih P.0 Box 2187 109 Wen Perguson 622 8. Tancahua LL~bbxk.Texas 79408 Iriler. Tcxas 75702 Coqm Chnsti, Texas 78403 (512)822-4378 District 5: District 7: Jack Zimmemmm &Jim lavine Gerald H. Goldstein, Chairman Fwe Pas1 Oak ark, Ste 1130 29W Tower Life Bdding Hougton, Terns 77027 San Antonlo, Texas 38205 (713)552-0300 612)26G1463 Lxs&c% Kent Schaffer DEstrict 8: Ed Mason 3Wo Tcxas Colnnlerce Tower Bill White & Bill AUlson 12221 i\lerit Dr.. Stc. 850 6WTmvts Street 130(, Nueces B 1990 TEXAS CRIMINAL DEFENSI Dallas, Texas 75251 Houston, Texas 77WZ Amtin. Tms 78701 214)B1-0200 LAWYERS ASSOCIATION (7131228-85W (512)472-0144 ------

VOlCE FOR THE DEFENSE PRESIDENT'S COLUMN I The Legislature's Coming! The Legislature's Coming!

Like it or nut, the Texas Legislature meets every two years Cat least). Even though the 72ndSession does not begin until Janua~y,1991, pre-filing of bills may begin as mrly as November I, 1990. While we've been busy with our law practices various bureaucratic enti- ties have been working through the sumnler and fall "building the peifect beast" (apologies to Don Henley). I suppose undaunted by the fact that evexy legislatufe befo~ethem, at least since the 192l "Crime Eradication Aet," has tried, and failed to stamp out crime by the passage of laws. Iwrite to inform you of what's on the hmieon and to en- courage your assistanee in providing a them of the hazards of this dmconian measnre of reality to the political rheto system. We must tell them that the ric. federxl guidelineswe~erushedthrough Sentencing Congress wrthout study or considera- The Criminal Justice Policy Council tion and passed as a "ne~on crime" of the Governor's Office is workmng measure. They should know that even under a legislative mandate fmn The the fede~aljudges ale adamantly op- last session to develop and propose a posedto then1 7lley do notachiive the seentencingp~acticesstudy.This is to he stated result of uniformity of sentencing submirted to the legislature for ap- but rather result in gross disparity proval and funding. The staff of this brought on by the prosecutors' ma- project has been conducting a sluuey. nipulation of indictment counts. Our Originally only prosecutow, judges and state judges need to know that in prac- probation personnel were being polled tice they would be abandoning their but a fail minded person among the sentencing anthotity to pibation 0%- prosecutcuts suggested that they contact ce~sand plosecutors. The people need weldon- 3ur Executive Director, jolm Boston. toknow that their right to pa~ticipateas Tyler (1976.77) lohn has been successful in getting juries in sentencing wouki be abol- hem to call 'I'CDLA members for a ished. They also should know that the nore balanced survey. Theil question- spte~nwould be ext~wnelyexpensive iai~eis very lengthy and it \dl take 30 to implement. 0 45 minutes ta talk with them. Pmsecutorial Wish List qosveverit is time well spent and if you The prosecutors' legislative appetlte lave not retmned their call, please do temarns voracious. Unsatisfied by the ,O at once. feast they have been sewed, they siill From their questions, it appeals that demand dessert. On their agenda is, of here is serious considelation to imple- course, the continued quest for unlim- neating a guideline system of sentenc- ited om1 confe&ons. They refer to ng. As we have seen, those who take themas voluntary but weall know who he easy way aut simply copy someone gets to say whether or not they are 4se's work and you know that that ~luntary-the police. Also on the neans the fede~alsentencmg guide- wish list is: ines. It is therefore our duty to speak o every person we know and wain VOICE FOR THE DEFENSE 7 EDITOR'S COLUMN I The Marion Barry Voir Dire Part 2

UNITED STATES DISTRICT COURT FO . DISTRICT OF COLUMBIA

: Crmlinal Case : No 90-om ilARlON S. BARRY, JR. : Cl'PJl

rnstn~ctions You are now a prospective jumr in a riminal case known as United States u. d.lartom S. &1r3: Jr Trial is expected to begin immediately aher selection of a jury. The purpose of this questionnaire is to assist the Wit and attorneys to select a fgir You will be asked follow-up questions in and impartial jury to hear and decide this open court regarding your answers on th~s case. The defendant, Marion S. Barry, Jr., questio~aueat the time you are separately has been charged with violating certain examined outside of the presence of other federal laws relating to possession of a prospective jurors If there is any deeply controlled substance, cocame, and niaking personal or confidential information called false statements to the grand jury while for by these questions that you believe yon under oath Mr. Barry has denied the have a legitimate reason to keep out of the charges and eMencd a plea of not guilty. public hain, and you wish to discuss Please answer each question below as those matters primtely with the Coun and completely and accurately as you can counsel, you may be permitted todo so, bul Comdete candor is emected of vou. Truth- you must make a request for prn-acyknown lid atrd non-cvasivc :inswcrs ere rcccrs:rrj to the Court in you answer to Questlon No. to c~isurcllrdt lx~ti~ttr! -m~\~rrn~~icnt and tI1c 69 or at the time you are being questioned defense have a meaningful OppoNunity to individually. satisfy thenwelves that a fair and irnpdr~ial Eow that you are a prospective juror it is fury has been scated. Your answets sl~ould important that, except as part of these enable the Coua and the lavers to deter- psoceedqp, you are not exposed to any mine whether yon will be abk to act as an outside informatron about this case. For this obiiaive and nnbiased dec~sionmaker. BY reason, you are no1 to lead, watch m listen fully ;msw!ring ~;uhql~cstim you will slvc to press reports relating to this case or the aulrat deal oitin~cI:~t~nmfi,rth:Cuun ;ord trial. You are also instructed not to discuss the attorneyqas well as yourself and fellon, the case with anyone, induding another prospective iu~ors. juror, or to let anyone talk toyou about the You are reqwred w sign yaw question- case. mire, and your answers are considered to bestatements g~ventotheCo~i#underoath Thomas PenF~eltlJackson Ifthespace pro\~rdcdfor youis not sufficient US. District Judge for a full ansnrer to any question, you may shnply continue tlm answer on one of the blank pages at the end Be sure to write the question numbet next to the remainder of your answer to make clear wludl question vnnn *- continuiog to answer. Please wvnce Contimed OltPCIge34 OCTOBER 1990 YOlEE FQIZ THE DEFENSE IN AND AROUND TEXAS

Ahneed Pzdeml Crhind law shgt.t sum If you attended, you am aware that, sWtanrivdy and aadern?cacalIy. the federal course in Houston was out- stan&ng. To ass& fedEd pm2ianes who did nat attend the muse4TCDU is cfffaring tk course book far deat $150.0o ta~includ~a plus shipw and handling. As TCoLA Pre&&nt Elect Rirhard kaclem need In his fetter to this wrk& regarding tlme CQU~boek and the Pedenl Shot%Ccupse, the-progmrn and boak were pmduced, "wvitb em- phasis on repr~~rbet Wte ad- far' defendant Cand to proVrde) the practftioner w& an outstandhg set c& Iran-Contra faelsuhitsan atrlcle on a~tbh&hat prwts an invduabke Bdnk Fmd pmvidirig mt only the remum for Gy individual who finds ctlpmmt&thel&w in that am,but hinwelf in a position afrepresentingrfie ahliming the prtpsenttioos that have white collar accuml in a fedezal imes- been brou&t by rhe &mkkDusl Task figation. . . . WIhouf qwali&&on, I Jbmfa Tkms. The ieSults of thme ree~mmpfndthls mnual m mu and ihvestipati~nsare included, and the pmcritionef is 5Zrown the extent and oatly ad." types of prmcutims &at iw ured in A summary of Andqmn's comments &h a.Large amounts of @sern- follpw: meof the h&hliphw offhe rnent 1~9~urcesare currently beiw mama[ are Dan Wmnl!sPWmIP'c- paudinto speebllzed fnwgtg%tio~s. &turn, indndns the new and evolving Arricles on S@f#llelInbWfigf&?2s, law an criminal fo~fei~1reas well as the m8n6pdLiaWlW.yof C~@urwt@cZ$rmts Fu@&um afdtfo~~qs'M. MIX% Ratliff,,BSsistantUnitd%tesPrUamey for $omhem Disriid or TexS, fir- n&hes m outline that gives updated the pmiftltfoner whv is mpresentifig s fedOMl client. rw* Conth~~fngIsgal Education, Me&- MPdTxlas Tyler is the tom for RTovember, wkm*on tRe Bth and 55th theCYlmi- mi Defen8e I;tnyeh Propet will can- duct a SIditls murse-Le., Mat pmaice oriented as oppaed to *advmce&" which is rime acildemii the pmgmm wiIl Wude sate and mefebf pracxk-r, with sc~n~ceml~lmis on drug pwsecutions. Spc;~kcrline-upa~lcl hc~tcl will have l~ctmannou~lcecl IJV brocl~nre VOICE FOR THE DEFENSE

In and Around Texas Committees, Et Cetera ably chaired by GerryGoldstein, who, Co~~fbrzrerljionrpage5 The 72nd Legidahlre begins its regu- as you probably know, was in need of lar session in Janua~y 1991. Betty help fronl his own conunittee when an Blackwell of Austin, with whom I had Assistant U.S. Attorney wrongly accused the pleasure of working during the 71st him of being involved in a criminal where President Tim Evans will con- Session, is the Legislative Committee enterprise with a client. The end result duct a Board Meeting at the Warthing- Chair. I will be the TCDLA representa- was that TCDLA and other amici were ton Hotel on Saturday, the 15th (all tive along with other nlembers of the asked to withdraw from the case in TCnLA members are urged to attend), Committee. We need your help in exchange for a full and public apology CDLP will produce a two-day state la\b Austin, so let us know ar the home by the loose-lipped AUSA, which apol- skills course on the 13th and 14t11, same office whether you are willing to con- ogy Chairman Goldstein accepted with venue. tact legislators that you know person- remarkable good grace. As I've written TCDLA will hold its winter senlinar at ally regal-ding legislation, wliich I will in the column before, the Strike Force Harrah's Tahoe Resort. That's at Lake try to keep you posted on by letter of is among the strongest of services avail- Tahoe, Nevada. There will be skiing memorandum as the sessionprogresses; able to members (and pospective and gambling before and after the or if you will make calls or write letters; members) of TCDLA. seminar (not during, we got to be or, best of all, if you will come to Austin The big three of TCDLA's services are serio~issome time). Then on the 24th and testify before the various Legisla- the Voice for. the Defense, the Strike and 25th CDLP goes to El Paso, for tive committees. The TCDLA Legisla- Force, and outstanding and inexpen- another skills course with emphasis on tive Committee will have key points sive Continuing Legal Education. defending sex crimes. In Februa~y outlined for or against legislation as it is Another growing service TCDLA is TCDLA and NACDL will sponsor their Filed and sched~~leclfor committee beginning to provide is a service not second annual drug seminar in Houston. hearing at the capitol. just to the membership, but to the Kent Schaffer, who did a bang-up job The TCDLA Strike Force, mow ~OI-- public as well. President Evans has on last year's dn~gcaul-se, is course niallv known as the Lanvers Assistance asked that each Director and Associate coordinator again. Then in March CDLP Comn~ittee,is PI-eparinginternal guide- will hold its sixteenth annual Criminaal lines for the guidance of the members Trial Advocacy Institute at the Criminal of the co~i~n~ittee.This coniniittee is Justice Center of Sam Houston State University in Huntsville. Dates are 17 through 22 March. We're hoping Bill White, who has been an ontstanding course coordinator in recent years, will President's Column ely, and a "summary judgment-type" do his magic once again. Coirtirrrredjiompnge3 procedure for disposing of celtain cases. In April CD1.P will conduct a homi- (\Vhatever this means,) To Senator cide defense practice seminar at a site Glasgow's credit he is intel-ested in the to be announced. If you feel like your opinion of TCDLA and has asked John 1. State's right to a jury trial at all stages cotnmnnity would be a good venue for Boston to serve on an advisory commit- of all cases. a homicide seminar, and a 1iund1-eclor tee. Fortunately for TCDLA John has 2. Unlimited joinder of all offenses more lamyel-s would attend, call the eamed credibility around the capital arising fr-om the same transaction (to home of1'1ce with your suggestion, but and is frequently asked for his views. deal with their perceived problems hnr~y,time is of the essence. We'd like Unfortunately lie is usually outnunl- under Gradg u. Corbin). to hold more courses in the small and bered and we need vol~mteersto help medium-sized Texas cities. 3. Legislation to conlply with Pew),u. him in these areas. Please call one of us LylZL7flg/~. The Merry Month of May will see if you can help A re-write of the law of warrantless TCDLA in South Padre with an ad- 1. Again we witness the easy way syn- vanced federal criminal law course. arrest. (We don't yet know what this drome in that the only thing that has means but I doubt it will safeguard June is State Bar Convention month and been reduced to writing at this time is 5tizens). more importantly, at least to the crimi- a modified draft of the federal pretrial I am quite sure there will be addi- nal bar, the month for 'I'CDLA's annual statutes. For now, PI-etrial detention ional efforts to insure that the state Hon. Rusty Duncan Advanced Crimi- has beenomittedout of a recognition of nal law Short Course in San Antonio on Icver loses. I've notice with increasing the Texas Constitutional prohibition in iequency that when prosecutors lose a 27 through 29 June. Article I, Section lla. There are those xse for some reason they blame it on With the amount of criminal law CLE who proposed amending the TCDLA and CDLP produce during each he law and run to the legislature to bail Constitution to allow fol- pretrial deten- hem out. I wonder why they can't be year, no member of the criminal bar tion and we must be on guard lest this tatisfied with 97% conviction rate. shonld be forced to attend a "Last a idea gather steam. ?retrial Release Chance Video Sho\vn in order to meet The time to defend against sliort- Senator Bob Glasgow, Chainmn of annual Minimum Continuing Legal sighted legislation is while it is being Educationrequire~~ients,but justincase, the Jurisprudence Committee, is pro- clrafted. It is remarkable what success posing reform in many areas of pretrial we'll keep reniinding you of these and we have had in adding a phrase hel-e law, namely: release conditions; bail other programs throughout the year. and there, but we nus st do it now. *** and its forfeiture; speedy trial; discov- Please help.. OCTOBER 1990 VOICE FOR THE DEFENSE Mike DeGeurin: Outstanding Criminal Defense Lawyer 1989-90

On the cover of this month's Voicefot lata, after the original appellate b~ief, mlttees the subpoena was quashed by the Defe,m is the increasingly familiar hvo stays of execution, three 11.07 US. DistrictJudge David Hittner. Judge face of Houston's Mike Weurin. Mike Wrlts (eventually resulting in an evi- Hittner issued a witten opinion show has been selected as the Outstanding dential~heating), another brief to the ing his recognition and sensitivq to C~iminalDefense Lawyer for 1989-90 Court of Ciitninal Appeals and finally a Sixth Aniendnlent light to counsel and by the Criminal Justice Section of the br~efm opposition to the State's Petltion Rule 17c oppression issues. (See, In Re State Bai of Texas. He was presented For Wm of Certiorari to the Supreme Gratid Jlqv Subpoetra For Allort~ey this award at the State Bar Convention Court, his tenacity paid off and Bran- Repressa~tingCri~?zi~iaIDefefzda~~t/ose in Dallas. dley was freed. Euarrsto Rew-Reqtcenn, 724 F.Supp. After gladuating from Texas Tech Pzutner l'aul Nngent attributes this 458 CS.D. Tur. 1789). Unfo~tunatelythe Law School, Mike clerked for former success to Mike's energy and total FihC~ciiit has ovemledJudgeHittnef Justice Wendall Odom at the Texas commitment to his client. "He treats his but as of this writing they had not Court of Climinal Appeals. He then clients like family membels. It was published the written opinion. The moved to Houston where he sewed as Mike's wdliiness to rollup his sleeves defendant in the case has since been clerk for United States District Judge and work into the night when things tried and convicted and TCDLA is opti- John Singleton. Mlke began his t~ial looked bleak that savedBrandley's life," mistic that the Court dlwrite on p~xcticeas one of Houston's first fed- Nugent said. Nugent also laughingly mootness and timing and not destroy eral public defenders. He was con- related the story of how Mike sacrificed Judge Hittner's reasoning. stantly in t~ialand it was there that his his body to make a point to the jury. Mike's list of accomplishments over- hard walk and natural potential was After a vigomus cross-examination of a whelnls the space for this article. Two recvgnized by his eventual mentor, police officer, Mike asked him to of his cases have appeared on CBS's "60 Percy Folernan. In 1977, Fo~eman demonstrate horv he "subdued tile Minutes." In addition to the the Rtxn- hired Mike as an assocxate and today he defendant. The exasperated offica dley case, the show featwed a case of heads the fiml of Fo~eman,DeGeurin, twisted Mike's arm behind his backand ounxgeous psychological coercion by and Nugent. Mlke has ealned his own rammed himinto the ply rail, breaking the police inobtaining a statement fiom reputation at the top of the profession a rib. The jury got the point and found a young girl accuse of niurder. We all but lie is quick to cledit the tutelage of excessive force. know this happens, Mike was able to I1 years with Percy Foreman. "Nobody Mike DeGeurin is a stand up lawyer. ptove it. can be Percy Foreman, or replace him," He showed his courage most recently Lewis Dickson summed it up when he says, "but I do have the benefit ofhis when he challenged a federal grand he said "Mike practices law as a profes- 60 years of experience." jury subpoena seeking infarmation as sion, not a business." TCDLA congratu- One does not become a great t~ial to the source of fee payment. Ably lates fellow member, Mlke DeGeurln, lawyer by osmosis Compassion and represented by brother Dick and as- and we thank him for sewing as an hard work were the recurring terms sisted by the TCDLA, HCLA, ATLA, and example to us all.. used by colleagues to desclibe Mike's the NACDL Lawye~sAssistance Comn- more concrete qualities. Folnier Fole- man and DeGeurin partner, Lewis Dickson, who now practiceswithMike's In and Around Texas or already passed by Congress, deci- brother Dick, sums it up thusly, "Mike sions handed down by the U.S. SLIP ConrinrredJ~ornpage 6 is very thorough, he is aggressive with- plane Court and lower coults, and the out being offensive and though he has general attitude that mole laws will a brilliant mind, he tries the case with &lve the alme problem. Citizens, Dfrector volunteer to make a public lus halt. Julors relate to his sincerity we,re not enforcing the laws we have relations speech before a civic, church and often acquit Mike and coinciden- already, Thele is a need to the tally, hsclient." or school grow on the importance of concept &king away indiLridual The most recent example of his hard the Bill of Rights, the criminal justice fieedonls ~11tllake our society Illore system or related topic. (Yours trnly is work and tenacity has resulted in the ke frolll clime, scheduled for a church groou in No- dismissal of capital murder charges that Every Illember get a me,nber. Selll. had held Clarence Lee Blandley m a venlber) It is essential that the public Fi to the old single cell on death row since 1980. be made aware of the erosion of Mike was hired in 1781 and a decade evmyone's rights by laws contenlplated I OCTOBER 1WO D.U.I.D. Defense Technics: D.U.I.D. Comes To Life In Texas by Ray T. Rogers, Jr.

DRIVING UNDER THE INFLUENCE is not nredically qualified for any diag- a defense. OF DRUGS (D.U.I.D.) has come upon nosis. He received minimal training in HEALTH & SAFETY CODE #481.002 our legal scene quietly and unnoticed. administmtion of para-medical tests and (10 lt is prosecuted under the same statute the identification of nmior, synrntolns-. of "DRUG tneans a substance other as D.\V,I. (alcohol) but D.U.I.D. Is a 7 classes of drugs. than a device or component part of or separate means of becoming intoxi- THE 'l'OXI@LOGIST: His qualifica- accessoly of a device that IS: cated. Further a combination of the 2 tions will be assumed for this article. (A) recognized as a drug in the official substances is lurking in the statute and He will amlvze a bloodhine sneci- US. Pharmacopeia; official Homeo- no doubt will also soon make its pres- men QUALIT'ATIVELY and not $inti- pathic Pharmacopeia of the U.S., Offi- ence known to all. This anicle will tatively. He has no experience in cial National Porrnulafy or a supple- attempt to give Defense Psactitioners in conducting tests on persons to deter- ment to either this area a general overview of the mine the effects of drugs on their driv- 03) intended for use in the diagnosis, sihlation nowexisting and suggest some ing abilities and no way to relate his cure, iningation, treatment or preven- means of defending against it. analysis back to the time of driving. No tion of disease in man or anitnals The Scenario amount of drugs determining an intoxi- (C) intended to affect the stluchlre or Asuspect isstopped by pol~ce,video- cation level is prescribed as in the case function of the body of nran or animals, taped on the roadside and thenatrested of intoxication for alcohol. but is not food or for D.W.I. with the standard observa- The Applicable Statute.$ (D) intended for use as a component of tions supporting probable cause to ARTICLE 6701-GI (2) (A) VATCS a substance desc~ibedabove. anest. Suspect is then taken to jail and Intoxicated means not having the nor- The Pailurn Of The "GreatMachineV given standad Implied Consent Warn- mal use of mental or faculties Starts It All ings. He then takes the bleat11 test on by season of the introduction of alco- Our D\Vl suspect voluntarily pa~tici- an Intoxilyzer #5000 Machine and LO hol, a controlled substance, a drug or a pated in the testing of hi bleath sample AND BEHOLD his test resdt is below combination of two Q? more of these and "passed." This cleated a serious .lo! He passed the breath test as most substances into the body; plobletn for the arresting officer in lay pewons undetstand it. The arrest- ARTICLE 6701-L5 Sec. 1. many respects. ing officer's opinion of intoxication has Any pewon who operates a motor The amesting officer now calls a time- been called inro se~ionsquestion. The vehicle upon the public highways or out and has * conference with the arresting officer now consults with upon a public beach in tbis state shall DAB. relative to the sitiiation. another officer called THE DRUG REC- be deemed tollavegiven consent subject The axesting officer then refers the OGNITION EXPERT (D.R.E.). The to the pl-ovisionsof thisact, to submit to suspect to the D.R.E. for testing. suspect is then taken to another roonl ti18 t~kitrgofotze or nzot'e speci~ve~isof Note ca~efully,that a mtlonal basis and "u~ged"to participate in a new his breath or. blood for tile purpose of (reasonable grounds) for the referral to series of teats callgd "PARA-MEDICAL analysis to determit~ethe alcohol con- the D.R.E. is ~equiredby the statute. TESTS." When these are completed the centration or the presence in his body Merely passing the breath test would suspect is requested m gwe a blood/ of a controlled substance or drug, if not he held sufficient g~mndsfor a urine sample fox testmg. The specimen arrested for any offense arising out of referral. Absent a rational basis for a is sent to a toxicologist together with a acts alleged to have been conmitted referral, it seems that At-izona (I. secotn~nendationfrom the D.R.E. fo~ wMle a person was driving or in actual YolIt?gbh~d,109 %p.Ct. 333 (19829, qualitative analysis only. The suspect is physical control of a motor vehicle would mandate dismissal of the case charged with D.U.I.D. prior to the final while intoxicated. . . . . , . . 7l~espccltnetf hased on bad faith of the arresting analysis based upon the D.R.E.'s opin- or specit?wtts shall be taken at the officer. ion that the suspect was using 1 of the request of a peace officer having EG- The Para-Medkal Tests 7classes ofdrugsd1eD.R.E. was trained so~qblegrotr~~clsio~liewtI~eperson to First note that these para-medical to identify. Later the test lesult is have been driving or in actual physical tests cannot be compelled by the po- returned fiom the toxicologist showing control of a motor vehicle upon the lice However, the police have a way of "positive." publichighways or upon a public beach obtaining cooperation from such sus- The New Players in tbis &ate while intoxicated. pects. Two (2) new playets have come forth AnTICLE 6701-L-1 (b) These para-tneciical tests consist of: in our D.U.I.D. case The fact that any person charged with Medical Histo~y;Eye Examination, Skin THE DRUG RECOGNITION EXPERT: a violation of this section is or has been This is usually a police officer who did entitled to use a controlled substance or not see the suspect at driving time. He drug undet the laws of this state is not Contimred onpnge 3 5 8 OCTOBER 1990 The Legality Of The Prosecution's Theory In State v. Mattox

The indictment, prosecution, and trial competence to do so."' "This defini- prosecution will be judged here. of Texas Attorney General Jim Mattox tional role is assigned primal-ily am This case presents some apparent on charges of coniinercial bribery' l~roadlyto the legislature, secondarill paradoxes. The crime of commercial occupied the attention of the legal and interstitially to the courts, antl to nc bribery, which was first adopted in community and the general public in one else."' The devices worked out b) Texas in 1974 as part of the new Penal Texas from the summer of 1983 until the courts to uphold the principle ol Code, is not expressly designed to Mattox's acquittal on the c1ia1-ges by a legality include the prohithibition of ex apply either to the use of threats or to jury on March 14, 1985.' The factual post facto lawnaking, the void-for- misconduct in public office, which basis of the prosecution's case against vagueness doctrine, and the doctrine constituted the real gravamen of the Mattox was highly complex. It essen- requiring strict construction of penal charges against Mattox. In jurisdictions tially consisted of the allegation that statutes."Though the most frequen~ with such a prohibition against com- Mattox, as Attorney General, had theat- rationale given for the principle of mercial bribe137 prior to 1974, that pro- ened a senior partner of a large Hous- legality is to provide "fair notice,": hibition has been essentially designed ton law firm with denial of the legally Professor Packer argues that "the m'eal to protect the interest of a principal, required official approval of niunicipal impo~mnceof the principle of legality prinlarily an employer, from illicit out- bonds of certain clients of the finn, in the criminal law today [is1 primarily side interference-in the form of fa- unless another partner of the firm took to control the discretion of the police vors, grahlities, or sinlilar inducetnents- action desil-ed by Mattox in unrelated and of prosecutor^."^ In controlling with the performance of duties owed litigationbet\\,eentllestate, repl-esented prosecutorial discretion "the single niosl him by an agent, primarily an em- by the Attorney General, and Mobil Oil impoilant device is the requil-enlent ployee.'> The practice conunentaty to Corpol-ation. . . . that tlie police am1 prosecutom con- the 'Sexas commercial bribe~ystatute, The author, who selved as co-coun- fine their attention to the catalogue of section 32.43 of the 1'en;ll Code, states sel to Mattox during the last stages of what has already heen defined as crimi- simply: "[tlhe section is aimed princi- the crinlinal litigation against him, is nal."* pally at kickhacks."i+In the alxence of thoroughly familiar with the factnal Texas criminxl procedure requires any authoritative construction of sec- evidence adduced at the trial. The that "everything. . . which is necessaly tion 32.43 by the Texas courts,Ii these purpose of this a~ticleis not, however, to be proved" should be stated in the indications that the statute is &I-ectedto to develop the factual side of the case indictment.'" The case law further bribe~y in essentially a cotn~ncrcial and the events surrounding it; the ju~y's indicates that failure to allege all the setting-not thrcats in a political con- verdict of not guilty speaks for itself on dements of the offense in the indict- text-should be compelling. The ex- the legal significance of the evidence.' ment or infornlation is a fundamental tension by prosecutom and courts of Rather, my purpose is to analyze a :lefect in alleging the offense 1.equiring criminal statutes designed to proscribe crucial dimension of the case which has reversal of a conviction obtained on the essentially crimes of property", in not yet been fully exposed to genera1 >asis of the defective charging instru- commercknl om- private sector dealings, and public examination: the adequacy !merit." The failure to allege in the to putative crinles in\~olvingalleged and validity of the legal theory under indictment all the essetltial elements- public corruption, has been a general which Attorney General RMtox was 1s defined by the legislature and con- and comnlon practice in recent years.I- chai-ged and tried. jtnled in the courts--of the crime of \Vhether that psactice should continue, The issue for analysis here is whether :ommercial briheiy is thus a violation thl-ough the prosecutorial extension of the prosecution's theo~yof the crime, >f these precepts of Texas procedure, con~tnercialbribe~y to reach the essen- as developed in the indictment, vio- ,vhich are in turn an enibodinient of the tially political conduct of public offi- lated one of the inost fnncla~nental ~incipleof legality." 'Sllis pl-ocedural cials, is an issue implicit in this article. principles of Anglo-American jurispn- -equit-enlent prevents the prosecution The second apparent paradox about denccthe principle of legality. That ?om creating crimes ex rribilo, by the ~Ikrttoscase is that, aside from the principle, according to ProfessorPacker naking the courts the final authority on defendant's innocence, it settled noth- in his book The Limits of the Crinri17crl vhether a particular indictment validly ing legally. The great expense in time, Snnctio~r,"is summed up by the niaxims lefines the crime being charged in money, and judicial resources estab- ??rr//1rmcri1r7er1sirrel~eantl~rrillapoer~n erms of the established legislative antl lished no legal principles of precedeti- sine lege: no one may be convicted of udicial elements. It is by this standard :ial v;klue by which section 31.43 might or punished for an offense unless the ~f whether the indictment fairly and :hibe construed or-in the larger sense- conduct constituting that offense has ~alitlly incoiponted the legislatively >y~\~l~ichprosecutorial discretionmight been authoritatively dcfined by an in- ~ndjudicially designated eletnetits of Je better defined and controlled.'" This stitution having the duly allocated he offense that tlie legality of the article, within its inherent litnitations, OCTOBER 1990 , VOICE FOR THE DEFENSE will attempt to fill this vacuum through duty as a lawyer to exercise independ- (1) "Beneficia~y"means a person for its analysis and criticism of the legal ent professional judgment on behalf of whom a fiduciary is actitzg. theory on which the case was based. hisclient, Mobil Oil Corporation, in that (2) "Fiduciary" means: In reviewing the prosecution's legal the said James Mattox did . . . in the .. . theo~y,the aiticle will take the follow- course of a conversation over a tele- Cc) a lantyei? ing approach: Fi~st,it will set out the phone between the said James Mattox These excerpts from the indictment relevant portions of the statute and the and the said Wiley Caldwell, threaten to and the relevant portions of the statute, indictment, together with some addi- delay approval and deny approval of together with some additional facts, tional facts and interpretation, to estab- catain bonds then pending approval p~ovidethe basic contours of the lish ess~ntiallywhat the prosecution's by the said James Mattox as Attorney p~secution'stheory of the case. theory \\as. Then it will establish thee General of the State of Texas, said Wiley Caldwell and Thomas R. major respects in which the State's bonds being those of certainbeneficiar- McDade were palmers in the multi- theory did not comport with the prin- ies for whom the said \Vky Caldwell member Houston law firm of Fulbrigllt ciple of legality, and speufically with was acting as a lawyer to wit: [seven- & Jaworski. Caldwell for many years the ~equi~enientthat every necessary teen named polttical entities and subdi- had represented as clients a large element of the crime he alleged. It will visions of thestate]; but that he, the said number of political entities in connec- show (I) that the alleged scheme did James Mattox, as Atlorney General of tion with their issuance of bonds. A not involve a bribe, (2) that the concept the State of Texas, would not delay major element of this issuance was the of fiduciary duty upon which the indict- approval and would not deny appmval necessity tosecure the legally required ment was based was faulty by not of said bonds then pending approval approval of the Attomey General. following the express statutory require . . . for and in leturn for the said Wiley McDade's client was Mobil Oil ment that the putative ~ecipientof the Caldwell's violation of his duty as a Corporation,"whose subsidiary Mob1 b~ibebe "acting as a lawyer", and (3) lawyer to his beneficiary, Mobil Oil Producing Texas and New Mexico, Inc., that the theo~yfailed to take proper Co~poration,in that he, the said \Viley had beensince 1982 embroiled in litiga- account of the fact the crime charged Caldwell, would order and ~equirethat tion with South Texas rancher-busi- was mchoate, and thus in the process Thomas R. McDade, a lawyer and the nessnlan Clinton Manges over the va- - lidity of certain of its oil and gas lenses on Manges's propelty, leases under ", . . McDade deposed Muttox . . . dissatis&d with the results, which Manges was lessor as the succes- subsequently publisheda notice to deposeJaniceMattox, bheANonzey sor-in-mnterest to the origmal lessor. In Geaeml's sistec for the assefledpwpose of discovering any improper late 1982, the Stateof Texas intervened in this litigation, th~oughthen Attorney erztungr'ernerzts byJhMattox wlth Manges an&ol- tl~ej~rdge.' Geneml Ma1 k White, to protect its inter- est in the leases and underlying mineral alleged a crime whose conlmissionwas partner of the said Wiley Caldwell, rights." Legally impossible. The article con- cease and desist from his efforts to The inmming Mattox administlation cludes that the prosecution's theory question and deposeJaniceMattox [the putsued the Mobil litigation because of violated rlie principle of legality be- defendant's sisterl in the course of a its obvious importance for the Pertna- cause it charged a crime not based ce~tainlaw suit pending in . . . Webb nent School P~nd.~'During the sphg primalily on legislative enactment or, County [Latedol, Texas . . . styled Clin- of 1983, McDade, acting as co-counsel secondarily, on judicial consnuction- ton Manges, Individually, and Duval with a disparate group of lawyers f~om the only legitimate sources of law in our County Ranch Conipany versus Mobil sevetal law firms, filed a motion to system of criminal jurispr~~dence.'" Producing Texas and New Mexico, Inc." rccuse the trial judge in Webb County The indictment shows that the defen- on the grounds of the judge's bias in I. The Prosecution's Theory of the dant, who it alleges "offer[edl a benefit" favor of Manges. McDade soon ex- case as a bribe, was charged under subsec- tended this litigation tactic to include To understand the prosecution's tion (c) of section 32.43, which states the Attotney General, charging pos- theory under which Jim Mattox was that sible improper influence by Mattox on charged with commercial bribery, it is (c] A pelson commits an offense if he the trial judge. To the ostensible endof necessar). to quote at some length from ofis, confers, or agrees to confa any discovering evidence of such improper the indictment ~etumedagainst him, for benefit the acceptance of which is an influence, McDade deposed Mattox in in the absence of jtrdicial opmions or offense undcr Subsection (b> of this the Atto~neyGene~d's oRce on May other airtho~itativesources of that the- section. 16,1983, and evidently dissansfied with my, the indictment isitsessentialsource. Subsection (b) describes the conduct the results, subsequently published a The indictment charged which hrlattox's offer putatively induced notice to depose Janice Mattox, the "that James Mattox . . . did . . . from \Viley Caldwell: Attorney General's sister, for the as- intentionally and knowingly offel a (b) A personwhoisa fiduciay commits serted purpose of discovering any benefit to a fiducia~y,to wil, \%ley an offense if he . . . aglees to accept any inpoper entanglements by Jim Mattox Catdwell, as consideration for the said benet3 as conside,'nfioii fon with Manges and/or the judge. Mattox \Viley Caldwell's violation of his duty to (1) violating a duty to a beneficiary. vigorously objected to this maneuver as a beneficiary for whom the said \Viley Subsection (a) in turn supplies two beingumelated to any material issue in CaIdwell was acting as a lawyer, sd~d critical definitions: duty being the said Wiley Caldwell's (a) For purposes of this searon: OCTOBER 1990 VOICE FOR THE DEFENSE Objections Part 3

by J~tsticeLinda Thomzs and Professor Malida Seyinore

VII. Ruling on Objection B. Criminal Cases Rule 103(a)(2) and 103(b) of the A t~ialcourt should nde on an objec- In addition to making a timely and Texas Rules of Civil Evidence provide tion as soon as it 1s made and no specific objection, a defendant must the ground nkes for n~kingoners of assigmnent of error can be made unless secure a specific ~ulingon the objection p~oof. Eriot may not be predicated there is a ~ulineon the obiection Thus. in older to presewe error for appeal. upon a ruling which admits or excludes merely mak& the obj'ection is not Dnrij~v. State, 709 S.W.2d 652 (Tex. evidence unless a snbsta~ltialr~ght of a sufficient. Counsel should not permit Crim. App. 1986). The objecting party party is affected, and in case the ~uling the trial judge to remove error fmm the must press the couit to an adverse is one of excluding evidence, the sub record by avoiding a spec~ficruling on iuling. Thus, if the objection is sus- stance of theevidencewasinade known the objection. If the tfial court Fails to tained, counsdtnust request an inst~uc- to the court by offer. The offeringparty tule, counsel should request a niling If tion to the jury to disregard, and if such shall, as soon as p~acticable,but before the coiwt refuses to rule, an objection to request is g~anted,must nlove for the court's charge is read to the juy, be this refusal is sufficient to preserve the mistrial. Penry u. State, 691 S.W.Zcl636 allowed to make, in the absence of the point for appeal. TEX. R APP. P. 521a). (Tex. Gim App. 1985), ce??.denied, jiuy, its offer of proof. The con11may Be wary of responses from the court in 474 US. 1073 (1986). NOTE: if a add any arher or futther statement the nature of: "let's move on;" 'the jury mist~ialis offered in response to this which shorn the cha~acterof the evi- will ~ecallthe evidence;" or "stay within request, error is waived if counsel re- dence, the For111 m which it is offered, the record." Do not forget when the flies the offer of a misbial. SeeSalirms the objection made, and the rulmg court calls for a lrsponsc from your v. Stctte, 625 S.W.2d 397 (Tex. App.- thereon. advetsa~y,and a discussion ensues to San Antonio 1981, no pet.). Rule 52(b) of the Texas Rules of ultimately press fora ~uling- it iseasy Aooellate Procedure contains viituallv to lose the ding in the midst of a C. Excluded Testimony i&&ical languageand specificallyad& lengthy colloquy. Where the trial court's niling is to that no fiuther offer need be made. NO sustain an objection to tendered evi- formal billsof exception shall be needed A. Civil Cases dence and thereby exclude it, the pro- to secureappellate~eviewasto whether In W Rmk Dallas, 1V.A. U. Sfmbelt ponent lnilst preselve enoi by way of the t~ialcourt e~iedin excluding the brfg. Co., 710 S \V.2d 633 (Tex App.- a bill of exceptions. evidence. Dallas 1988, no mil), a witness was 1. Civil cases Thus, to pleserve elror concerning called in ~ebuttal,and when asked a Where no bill is made, there can be the exclusion of evidence by offer of certainquestion,theopponent objected. no reversible elm. Dajllol~H~cdson ptoof, the appellate record must show: The jury was renloved, and after a Coy. v. Alf~ts,715 S.W.2d 670 (Tex. 1. the substance of evidence sought to hearing outside the ju~y'spresence, the App-Houston [lst Did 1986, writ be admitted was niade known to the trial court gave the wimess certain in- refd n.r e.); H16ckaby u. H@zdmmon, court; and stntctions but did not further ~uleon the 635 S.W.2d 129, 131 (Tex. App.- 2. the court either adversely ruled or previous objection When the witness HoustonIlstDist.11981, writ refd n.r.e.). after timely request affirn~ativelyre- testified before the jury, no objection The reason for this mle is explained m Fused to rule. was inte~posed.Because them was no Amletmi? u. Iiigdorz, 695 S.W.Zd 320 Remember, however, €hatthe offel of ~ulingafter the heanng outside the (Tex. App.-Waco 1985, wit refd proof orthe objection to the t~ialcourt's presence of the ju~y,and bemuse no n.r e.), which states that: refusal to nile must be niade p~iorto the objection was made before the jiuy, the When tendered evidenceis excluded, court's charge being read to the ju~y,or appellate couit held that the elror was whether testimony of one's own wit- it is waived. See Rnru Hide Oil C Gas, waived. ness on direct examination or testl- Inc. U. Maxm &pIoratiorr Co., 766 All reasonable presun~ptionswill be mony of the opponent's witness on S.W.2d 264 (Tex. App.-Amarillo 1988, ~ndulgedin favor of the colrectness of c~ossexamination, in order to later rn it denied). the t~~alcou~t's iuling on objections to complain it is necessary for the conl- 2. C~itninalcases the admissibility of evidence. The plainant to make an offer of p~oofon a If the court excludes evidence, it is court's rulings will not be distu~bedon bill of exception to show what the usually necessary to make an offer of appeal unless thefe is a clear abuse of witness' testimony wvo~ildhave been. proof to preserve any error in ~efusing discretion fiom which inju~yor p~eju- Othemise, thele is nothing before the to admit the evidence. Job~zsortu. Stale, dice has resulted. appellate court to show reversible error 773 S.TV.2d 721 (Tex. App.-Houston in the trial courr's ding. [lst Dist.11989, per. rePd). However, no OCTOBER 1990 VOICE FOR THE DEFENSE

offer of proof is necessary if the sub- rePd n.r.e.1. B. Criminal Case8 stance of the evidence is apparent from When testimony IS admitted subject Although the~eis some older case the Context within which the questions to an objection, with a promise that its law onmotions to strike or exclude, see, were asked. TEX. R. CRIM. EVID. admissibility will be established by eg., Kerrtrdj? v. State, 150 Tex. Crinl. 103Ca)12). connectmg that tes,timony to other 215, 200 S.W.2d 500 (1947); Huff u. In Htcrdu. State, 725 S.W.2d 249 (Tex. propel testiniony iv the case, and the Stute, 145Tex. C~im.82,165 S.W.2d 717 Crim. App. 1987), the court held that a promised connection is not made, the (1942); Jamar u. St&, 142 Tex. Crim. defendant's offer of proof satisfied the testunony previously received should 91, 150 S.W.2d 1031 (1941), its func- requirements of rule 52 of the Texas be st~ickenon motion. Thegrounds for tional equivalent is now a request that Rules of Appellate Procedure because it the motion slzould be defmitely and the jury disregard the evidence. included: plainly stated and should point out the When an objection is sustained, 1. the questions defendant would have pamcularpaltsof the testimony that are counsel niust request an instruction to asked the wimess; improper. The trial court cannot be disregard and, if given, must move for 2. the answers he might have received; expected to sort the evidence, striking mistrial. hi~yu. State, 691 S.W.2d 636 and the objectionable itenis. A motion to (Tex. Crim. App. 198585), cerl. deitied, 3. the purpose of the testinlony. stlike out testiniony w111 be denied if a 474 US. 1073 (1986). An instruction to Note that the right to niak an offer of portion of the testimony at which it is disregard cures en-m unless the evi- proof or perfect a bill of exception is directed is proper. dence is clearly calculated to inflame absolute and the tlial court commits The trial judge has the duty to rule on the minds of the jury and is of such a error if he refuses the opportunity to do motions to stl'ike or exdude evidence. character as to suggest the irnpossibiIity so. Spe~tceu. State, 758 S.W.2d 597 The cou~t's nding will not be dkturhed of withdrawing its impression on the (Tex. Crim. App. 1988). an appeal unles an abuse of discretion ju~y. Craiuford u. State, 603 S.W.2d 874 is shown. CTex. C~imApp. 1980). Vm. Motion To Strike Or Exdude When an ohjection is made and sus- The Court of Ctiminal Appeals has A motion to strike or exclude should tained as to testimony which has been explained its poky as FoUows: be made when evidence has already heard by The jury, the testimony is In tlie vast majority of cases in which been admiued. A niotion to strike may before the jury unless they are in- . . . testrmony conies in, drlibe~xtdyor become necessary in the Following structed to disregard it. If an objection inadvcrtently, which has no relevance instances, as noted by both Jordan, to an answer is made but there is no to any material issue in the case and TmsTrialHa1ldbook2~ g 243 (Exclu- ruling and no motion to strike is urged, carries with it some definie potential sion of Evidence) and Pope and there is no error. Prrrdontiall~~strrance for prejndice to the accused, the Court Hampton, P~zsetrti~igatrd ~cltfdi~~gCo. of drr~ericau. Uribe, 595 Cl'ex. Civ. has relied upon what amounts to ah Euideuce, 9 Tex Tech L. Rev. 403 App.-San Antonio 1979, writ refd appellate presumption that an instruc- (1978>. n.r.e.). Where objection is made to tion to disregard the evidence will be 1. To exclude an answer of a witness expert testimony after the testimony is obeyed by the jury. . . . In essence this made before an objection could be admitted, any error in admitting the Court puts its faith in the jury's ability, made. testimony over the objection is waived upon instnlction, consciously to recog- 2. To exclude volunteer statements of if no motion to'strike was macle. Cipf nize the potential for prejudice, and the witness. Deiiton u.lWatbes, 528 S.W.2d 625 (Tex. then consciously to discount the preju- 3. To exclude non-responsive;msme~s. Civ. App.-Fo~t Worth 1975, writ refd dice, if any, in its deliberations. 4. To exclude prior testimony admitted n.r.e.1. Gardner u. Stale, 730 S.W.2d 675 conditionally upon counsel's promise If the objection is made after the (Tex. CI~.App. 1987). to connect up the testimony 61 to lay a cvidence is admitted, there are three While some judges have scoffed at foundation. iteps to the objection: the concept that an instruction to disre- 5. To exelude testimony which later 1. An objection must be marle; gard can remove the stench after the hum out to be in~pioper,such as hear- 2. The party must a>&the trial court to skunk has been th~orvnin the jury box, aay, or in violation of the best evidence strike the evidence; and Logan u. Slate, 698 S.W.2d 680 (Tex. rule 3. The p~~tymust ask the hial court to Crun. App. 1985); Walker u. State, 610 6. To exclude testiniony of a witness, mstnrct the jury to disregard tlie evi- S.W.2d 181 CTex. Crim. App. 1980), the who by reason of srckness, death, or Sence. co~utadheres to the requirement that refusal, fails tosubmit to crossexamina- Basically speaking, since untimely an insrn~ctiontmrst be quested in tion. ~bjectionsare frowned upon, a motion order to preserve en-or. Note, however, u strike will be of little assistance in that the failule to rcquest an instluction A. Civil Cases xese~viny:error where an objection nlay be excused if the evidence was not Where testimony appears to be m~rldhave been macle at the rime the susceptible tocu~ehy instruction. Abhtf admissible and is admitted and it subse- rvidence was offered but none was v State, 726 S.W.2d 644 (Tex. App- quently appears that testimony was orthconling. Fu~ther;a motion nlade Amarillo 1987, no pet.). madmissible, a motion to stlike should ~ftermotion for instnrcted verdict and he made to exelude the improper nistrial is too late. Moirsanto Co. u. IX. Checklists For Objections evidence. Honie Inde~mifyCO. u Milunr, 480S.W.2d 259 (Tex Civ. App.- Included as checklists are source Drape& 504 S.W.2d 570 Crex. Civ. louston U4th Did 1972), affd, 494 materials which may be utilized as App.-Houston [lst Dist.1 1973, writ i.W.2d 534 (Tex. 1973). quick references. As noted by John OCTOBER 1990 VOICE FOR THE DEFENSE

Nichols in his 1986 article for the Ad- Checklist of Obiectlons to Evidence roo remote -Attempt to impeach his vanced Family law Seminar, Makiug Questionis: -Repetitious -Leading and own witness -Improper test,. such as and Meering Obfections, the first is a suggestive -Argumentative -Misleading value -Witness is disqualified to testify checklist for possible objections to -Too general -Indefinite -Multifarious - -Objection to hypothetical question evidence which was supplied by Pm- Inflammatory or prejudicial Conduct of Tunsel: -Prompting the fessor Matt Dawson of Baylor Law Question Calls for Matters Which witness-Attempt to intimidate or badger School and incorporated in Jordan, Are: -Not supported by pleadings -At the witness -Side bar remarks -Arguing Texas Trial Ha?a,l&ook 2d at section variance with pleadings -Hearsay -COIL with witness -Testifying -Abusive Ian- 239. latend matters -Irrelevant, incompetent, guage -Failure to maintain proper place 'She second contains objections that p~ejudicialand iininaterial -Repetitious at bar may be made to various types of evi- -No predicate -No best evidqnce Self- Answeris: -Nonresponsive -Atgumen- dence offered and which appears in serving -Violative of Dead Man's Statute tative -Evasive -Rambling -Narrative Keeton, DinlTacticsa1zrlnfefhods2~fat -Violative of pad evidence rule -Calls Acknowledgements pages 210-215. Because rule changes for an opinion the witness is not quali- The acknowledgenlent on the docu- have occurred since these original ar- fied to give -Calls for Factual ox legal ment is irregular on its face because of: ticles were published, some editing of conclusion -want of a seal or other evidence of the the original articles has occuned. Amwer Gives Matters Which Aie authority of the person purportedly Nevertheless, a review of the Texas -Not supported by pleadings -At va~i- taking the acknowledgement. Rules of CivilEvidence is ~ecommended. ance with pleadings -Hearsay -Collat- -want of evidence of the autho~ityof edmatters -Violative of Dead Man's the person who rook the acknowledge- X Conclusion Sm~te-Attenqt to vary written instw ment, it being purpo~tedlytaken out- There is no greater weapon in an ment by parol evidence -Matters on side this jurisdiction by one whose attorney's trial arsenal than a thorough which witness is incompetent to testify authority must be affirmatively shown. and complete working knowledge of -Opinion and conclusion of witness -failure to comply with the statutory the Rules of Evidence. A11 trial prepa- -Repetitious -Not best evidence -Self- requirements. ration should begin with a rereading of serving -davits the ndes which may be called upon in Question calls for matters which The affidavit is mere hearsay, the any given trial. At that point, the are: -Privileged con~munication-Ten- affiant not being a witness at the trial (or pmctitioner will be ahk to appropri- dered documem or evidence is not hearing) when it was made. ately introduce evidence essential to property authenticated -Fact assumed, Ambiguity (see Uncertainty) the case as well as properly exclude the not in evidence and not judicially no- Ancient Instruments adversary's evidence or at least pie- ticeable -Violative of some rule of ex- The instrument is not shown to be an serve arm in the event of its admission. clusion-Attempt to impeach of a matter Co~ztinriedoortpnge3I

OCTOBER 1990 VOICE FOR THE DEFENSE The Law of Search and Seizure A Brief Overview-Part 3

E. Destruction of Evidence Emer- fail to anticipate Texas courts w~llfolk Customs officials may stop vehicles gency low the federal lead in this area. I at fied checkpoints tnside the border Occasionaliya warrantlesssearchmay F. Automobile Exception to question occupants about residency. be ~ustifiedwhen there is an etnelgency If there is probable cause to sea~cll Iiowever, pobable cause is rcqutred cleating a ~iskthat evidence of a crime an autonlobile n,hich issubject to being (01 consent) to searchthe occupants or will be lostot destroyed. Alcad~ngcase moved, officets may search without a car. U~ritedStates u. illa~tinez-Fire~te, In this arca is Sclmterber u. Calijbr~~ia, waxrant. Cl~~~rnbe~su A4armq 399 428 US. 543 (1976). In contrast, when 384 U.S. 757 (1966), upholding the US. 42 (1970). The Suplane Coiut has thee is no fixed checkpoint inside the wvar~antlesstaking of a blood sample to premised this "automobile exception" ho~der,officers tnust base their stop on determine alcohol content -the delay on two theories: (1) automobiles ale reasonable suspicion US. u. Brigrmti- which would be caused by obtaminga readily mobile, (2) people enjoy a I'OJIC~,422 U.S. 873 (1975) war~xnt- could have resulted in loss reduced expectation of p~ivacyin their H. Adminstrative Search of evidence. However, it is more dii- dlicles because they are heavily Warmntless administ~ativeseardm cult to justify the seatch of a house regulated. Cd$orwia u. Carrlq, 471 ale justified nvheti reasonable. ~\Teu under the concept of desttuction of US. 386 (1985). For an e.xhaustive l'ork u. B~oger,107 S.Ct. 2636 (1987) evidence emergency. Several times the treatment of the development of the (adtninistmti~~esearchof auto junkyaid). Supreme Co~uthas consideled the automobile exception and the scope of The Sup~enleCouit has justified these prosecution's claim of an etnergency anto~nobilesearches, see United States warrantless administ~xtivesearches on destruction of evidence exception that u. Ross, 456 U.S. 798 (19821. In general, the theory that when a business is has found the facts of the cases did not the scope of an automobile sea~chwill considered "closely or persuasively fit the requimnents. See Vale u. Loirisi- be defined hy the object of the search ~eguk~ted,"then the expectation of aw,399 US. 30 11970). In 17aleoffce1s and the places where the tlung sought plrvacy has been diminished. To sip- had set up m~veillanceof defendant's to be found might be located. Bottom porta n~a~nntlessadminist~ativesearch, house because they had two warrants Line: If officershave pobable cause to th~%ectiteria nus st be met (1) the~e fol his arrest. However, he ms ap beliieve d~ugswill be found in a cal, must he a (substantial) government ~estedon his front steps aftel officers they may search any part of that car - interest giving tise to the legulatoly saw him conduct what they thought includtng any containe~swithin the car scheme under which the ptosecutton was a dlug transaction. Police officers whichmight contain d~ugs.Fora 11st seeks to justify the sea~ch;(2) the took the defendant inside and con- of Supreme Court decisions concerning search must he necessary to fu~therthe ducted a cursory search of the house. A nmxmtless sea~chesof vehicles and ~egulatoiyscheme; (3) the "ce~tainty few moments later, the defendant's pe~sonaleffects found in vehicles, see and regula~ity''of applying the regula- mother and brother ente~rdthe house, Appendix C. to17 scheme must act as an adequate at which point the police searched the Texas follon~sthe federal rule. In substitute for a warrant. If these ct ite~ia house and found d~itgs. Prosecution Os6n11 u Sfat< 726 S.W.2d 107 Ckx. are met, then it makes no difference tried to justify sea~chof house under :rim. App. 1986), Cour~of Criminal that the administ~ativesearch was clainl that brother or mother could be kppeals adopted Ross, holding that if conducted by law enfo~renlentoffices destroying Conhaband. Under tllefacts, ~fficersdiscover even a sn~allamount rather than adtninist~ative agencies. the search could not be condoned as >f contraband in a car, then all palts of Examples of closely legulated indus- incident to axrest (the defendant had he car may be searched where atlcli- tries include fircar111 and liquor estab- not been anested inside the house). mnal contraband could likely be lishments. Mo~eover,because the facts did not zoncealed. See also Ddgado u. State, Texas follows the federal ~nlefor show officers could no1 have obtained 718 S.W.2d 718 (Tex. C~im.App. 1986) adn~inistrativcsearches. A good recent a sea~chwauanr, the search was de- S. Border Searches example is found in Crosby u. Stnte, 750 clared invalid Based on We, con- Neither the pmbable caux require- S.W.2d 768 (Tex. Crim. App 19871, mentators suggest the etnelgency de- nent nor a reasonable suspicion is whicl~involved search of a nightclub to sttuckion of evidence exception will .equired Fa a search of persons or conduct a routine inspection for liquo~ pmbably apply om'j~wheieevidence is xoperty at the border. The theo~yis violations under T.A.B.C. Sec. 101.04. in the pmcess of dest~uction. 2 W. Ia hat the United States has soiaeign Applying theBmgertest, Cou~tof Grmi Fave, SEnrd~and Seizure, Sec. 6.5(a) lower to piotect itself at its ba~ders- nal Appeals found the Texas ~egulatoly (1987). o ptevent both contraband and illegal scheme acceptable. However, this case Texas prosecutors have not placed liens fiom enteting the country. See, was reversed because the officers ex- much reliance on the emergency de- or example, UWed Slates u. Rn,?zseji, ended their search into a pnfo~mer's struction of evidence exception. It is i31 U.S. 606 (19771. dressing room - a seaich which could 14 OCTOBER 1990 VOICE FOR THE DEFENSE

not have been conducxed to detect possible Jtquor vfolations. Cmby nas disrinijuisheci and dmlnistrative sunder theTexas Almfial Code upheld menfly in ~DDIB~Mu. Sc@? - 5,W.M - Us$.Crtin. App. Na viS1~1. $$-& delivered 28/11/89) (warrant- R Evlde~ceSeen b Ha& View less search of ni&tclub upheld folb- 'he pkin view exception to the Ihg tip fimn confidenriaal infCmmnt that nramnt rrquhent allows an offrcer nightdub owner -mm dhgcocaine to seize eviclence of mtmbnd with- fmn~hehind the hcJ. Se~aIso,,Ssrrtiit.fns out awalrant if the &cer Is in a pnbk u. $We, - S.\$r.Bl - _ex. Grim. place and ohems the evideme of App. No 9a-W; delivered 12-20-89) contrabaml QntMic view> olrif the o&- CupheId swehcrflxked filingmMnes c.er has nude a legitimate httusion on opened hy.clefen&nraiT.A.B.C. agentsS thedefe&nt"sp$wyrjght at thetime lequwt during routine gend hqxc the evidence is diswwed!&Wnvlcwj. risrfll. CUI~of Criminal Appeals This mcqtion is @rounded on the wntinues fo rwopize that DWl &ad- princtple that when the officer has bla~kdonotfall within the adnqnfatra- the =arc.& dxceptibn. Hfgbie u Slafe, 780 S.W.2d 2% @ex. C~im.App. 19811) cmmming the item o&wd is eithet Caddifwnally in lJ&& thete was no nonexistent 01. vitiated because of the idIvidd suspE14n dmwn to justify oFmr's legalinfmslon. E+.w$uB~m~tt, 460 u.8. 450. i19W (defendant% ear sropp@dat night during routine drim's lira&&; officer shinii flash1tght In sane instances miwrsdwol cM1- &en nay Jx trbjmd to wmtless seanzhcfrat~harrl. NewJmyv. T,L.0., Three rcquircments must br satislied 469 US. 325 €1985). It hsbeen sug to justily warrantless seizure of privatc geed, howeyer, that ZL8. applies property imdwtla: plain vicw public mly to searclfes condacted by school vim exceptions: (I) offitvr IIIIIS~tx in mtfhorlies withuut the induecment m a proper position to view tllc item full invokemen&of poka 'Illis issue has fare or tllc initial intrusion must bc yer to be litigated. The w~enttest $ lawful; (2) officer IIIUS~discxwcr the that the legality of the *arch mu& be incriminating cvidcnw itxadvertcntly based on whvhether it wsrs reasaliabfe (i.c., officcrmust INII know in :lilvanct! undw all the circmtlstances. XLQ. atso the loattion of the evidmm a& a@ gives seho1&ciaIsaudlorioy to search nith theintent toseize it]; G>itmust be whrm mbI&n af school ruksar sew- "immediately apparent" to officw Phmit latians have pwibIy omr&. Item cs$s;a17rt:d may eitber be the evl- J. PrlsQn*d.m Saar&w dence of a dfneor contlt?band. A primner has no reasom& expec- BIvm does not InYlirn there are no ration 01 privacy- in his cell. Pa this lin~ls.an the mpe of a p&n view reaswn, &am searthea of inmses' scarcl~.In ilvizwru u. /lick;, 1107 S.O. 769 S.\V.2d 887 (Tcx. Crinl. A~[J1989 cellsale allmved. For thiS mason, alw, 1 I49 (1%7), the Coun consitlen.ii the (defendant forfeited his cxpcctotion of visual body cavity sea~hesFoilowing litnib of perndssilk sedrch con(luned ndam when he did nor cumin w undcr tlte t)l~inview tltxtrine. T11wc &hem& mknre the view im his galage &red by the windonrs).

QCTOBER 1990 VOICE FOR THE DEFENSE

III. Exclusionary Rule officer would rely on the subsequent proof. RLI~u. State 717 S.W2d 7 In the feder:d system, the exclusion- finding of probable cause; (3) the am- Vex. Crim. App. 1986). In reality, this a~yrule is a judicially created remedy davit was so lacking in indicia of relia- means the defendant needmerely show for Fourth A~nendnlent violations. bility that any finding of probable cause that a search or seizure occuned with Weeks u. United States, 232 U.S. 383 based on it was unreasonable; (4) the out a warrant. At that point, the burden (1914); Mapp u. OJ>io, 367 U.S. 643 warrant is facially invalid (i.e., descrip- of proof shifts to the prosecution: (1961). . tion of items sought or place to be (1) if state produces evidence of a Texas has its exdnsionary ~ulecodi- searched utterly lacking). warrant and its supporting affid~vit, fied by statute in Art. 38.23, V.A.C.C.I', m 1987 theTexaslegislatu~.ean~ended burden then shifts back to defendant to The terms of this statute ale mandatory. Alt. 38 23 to include language directly show wanant was invalid. Ktcsell, Hmm~~ciezu. State, 600 S.W.2d 793 from Leo& finding an exception to the supm Note State must produce botb Crex. Crim. App. 1980). The statute article when evidence was obtained by warnant and affidavit at trial court level. provides that evidence obtained in a law enforcement officer "acting in Miller u. State, 736 S.\Y!.2d 643 Rex. violation of any state or fedetd consti- good faith feliance" upon a wanant Crinl. App. 1987). tutional pmvision or law cannot he rssued by a neutral magistrate based on (2) if state cannot produce warrant and admitted in evidence against the ac- pobable cause. However, thisdesciip- affidavit, prosecution must shm by ;( cused du~ingthe trial of any criminal tion appeals to limit the Texas exclu- preponde~nceof evidencethat search case. Thus, the Texas exclusiona~yrule sionary rule and good faith exception and seizure was reasonable. Rtcssell, is broader than its federal counterpart on,$ to cases based on a warrant. st@ra. If this issue is later raised before - it serves to require exclusion of Thee rnaybethree other aleaswhere the jury, the state's proof becomes the evidence obtained in violation of fed- Texas diverges fiom the fede~alcoults reasonable daubt standard. IdLon& lew. e~aland state p~ovisions. See Crmu. ti1 application of the exclusionary rule. State, 676 S W.2d 115 CTex. Crirn. App. Stcrte, 586 S.W.2d 861 (Tex Crim. App. The first is when the exclusions ry ride 1984). 1979) Cevidence obtained in violation is applied to an officer acting in ohjec- (3) when thc state seeks to justify the of state attorney-client privilege tided tiveiy seasonable reliance on a sla~~rte search on a theory of consent, state inadmissible). In fact, one Cou~t of later declared unconstitutional. The must show, by clear and convincing Appeals Justice has argued that regard- Supreme Court has applied the excb evidence, that the consent was given less of the open fields doctrine, entry of siona~y~uie's good faith exception in freely and voluntarily. Dtckey u. Slate, officers still atnounted to a trespass this circumstances. Illi~~oCFu.Krdl, 107 716 S.W.Zd499 (Tex. Crim. App. 1986). under V.T.C.A., Penal Cde, Section S.Ct. 1160 (1987). However, the Court Once the issue has been ~aised,the 30.05; thereby any evidence obtained of C~inlinalAppeals has expressly re- triai judge can determine the matter wouid he in violation of tlus law and jected such an extension in the past. either before trial or wait until trial. thus excludable under kt. 38.23. Leu1 See Hotuard u. State, 617 S.W.2d 191 Obviously, defense counsel has tactical u. State, 736 S.W 2d 907 (Tex. App. - Crex. Crim. App. 1981). reasons for wanting the court to defer Coipus Christi 1987) (dissenting opin- A second point of divergence may hearing a atnotion to suppress until trial. ion), pet. disrriised, 773 S.W.2d 296 occur in the area of pmext a~rest. If the healing is held before trial, jeop- (Tex. Crim. App. 1989) (issue not ap- Texas sou~tshave continued to strictly ardy does not attach, and the state can propriate for review because not prop- adhere to the concept that a pretexT appeal an adverse ruling under Art. erly raised befo~ethe Cou~tof Ap- arrest is an illegal anest, and, absent 44.01, V.A.C.C.P. In contrast, if a mo- peals). intervening events, any evidence re- tion ts head during trial, the state is On the fedeml level, the exclusionary sulting fmm such an amst may not be precluded fronl appealing. rule has been snbstantially modified by used at trial. &luck u. Stute 739 S.W.2d Whenever evidence is presented on a the Court's creation of a "good faith 240 (Tex. Crim. App. 1987). motion to suppress, the trial judge exception" for searches conducted in A third point where the Texas exclu- determines the credibility of witnesses relianceltpon defectivewamnts. U~zited sionary rule diverges from the federal and aas as a sole faafinder. Carrasco Stated u. Leoit, 468 U.S. 897 (1984.' ~~deis that under Art. 38.23, the legality u. Slat< 712 S.W.Zd 120 (Tex. Critn. 7Jnder the looct test, the Court recog- of a search of seizu~ecan be subnlitted App. 1986). nized that for the exclnsiona~ylute to to the jury for determination, as well as Generally, when a defendant testifies function as a deterrent tv improper to the judge. Because application of the in support of his motion to suppress, police conduct, it must elate to the stahxte is mandato~y,as long as the his testimony cannot headmittedagainst police conduct - the suppression is defendant meets his burden, he has an him at trial. Simmorls v. Uizited States, only appropriate where off~ersare absolute right to a jury instruction on 390 US. 377 (19683. However, if the negligent or have knowledge of their the issue. Brooks u. Stltte, 642 S.W.2d defendant testifies at trial and his improper conduct. The Court set out 791 (Tex. Crim. App. 198282);Jorclatz o. testimony varies from the testimony four sihlations yhere suppression of State, 562 S.W.2d 472 (Tex. Crim. App. offered dunng the suppression hear- evidence would be proper: (1) the 1978). Texas is among the few jiuisdic- ing, he may be impeached. Franklin u. magi&rare or judge ws misled by in- tions that provide for jury determina- State, 606 S.W.2d 218 (Tex. Crim. App. formation the affiant knewwas false or tion of this issue. 1978). Additionally, the actual procur- would have known ws false except for W. Trial Considerations ing of a warrant does not preclude the his reckless disregard of the truth; (2) A defendant seeking to suppress use of exigent circu~nstancessl~ould the officer or judge wholly abandoned evidence hecause of a Fourth Amend his judicial role and no reasonable ment violation bears the burden of Continued onpage28 OCTOBER 1990 -- VOICE FOR THE DEFENSE Bank Fraud (Life Before and After F1RRBA)-Part 3 byJames C. Sabalos a~zdRussell R. Oliver

IV. Federal Statutes The Federal Government is empow- (El; that is, it is not essential that an A. Introduction ered to conduct examinations of each indictment include a sepalate conspir- On August 9, 1989, P~esidentBush federally insured institution.'o Both acy chatge to utilize the exception.' In signed FIRREA into law. This compie- institutions and ~egulatorsare charged defending bank fraudcases, it is essen- hensive legislation was initiated by the with making "criminal referrals" to tial, particularly where a conspiracy is Bush administration in an effort to deal valious regulatory agencies, the F.B.I. not charged, that counsel anticipate the with the collapse of the savings and and their lespectrve US. Atto~ney'sOf- Gover~nent'suse of statements from loan industry. FIRREA has far-reaching fices." Consphacy to defraud the United nnindiaed "co conspirators." inlpact. States does not lequire monetaly loss. e. Utilization of Mere Presence Defense In addition to reorganizing the regu- Any agreement by hvo or more persons In a prosecution against bank insid- latory agencies which oversee banks (e.g. bank inside~sor insideis and els, the Government will seek to use and thrifts, FIRKEA creates new civil custonlets) to conceal matel

4, 19861 (1). . "Com~otlv."a, Mr. Villa notes that (4) "To any persodfrom any per- a. Essential Elenlems of the Offense of Congress did not define the term "cox- son." The language "to any person" (a) (1): n~ptly"as used in § 215Ca) and @) but under $ 215(a) (1) or "from any person" (1) That the defendant gave [gives, suggests that Congress intended "cor- under $215Ca)(2) was intended to reach offem or promises1 something of value ruptly" m mean ". . .an act done volun- the tecipient of the bribe Ce.g. friend, to any person; and tarily and intentionally" and ". . . with associate,family member of the banker) C2) That the defendant did so cor- bad purpose of accomplishing an un- and the person or entity which paid or ruptly with the intent to influence lawful end or tesult by some unlawful promised to pay the bribe (e.g., person [rewardl Cmoffcer of a fmanciai method or means."*' The Proposed which paid or promised to pay the institutionl, in connection with any Fifth Ci~cuitPattern Jury ChargesOMatrh bribe on behalf of the borr~wer).~ business or transaction of that insmu- 1989) defines "corruptly" as an act ". . . Section 215 is a powerfill tool for tion. done intentionally and with an unlaw- prosecutors: It gives them an expan- b. Essential Elements of (a) (2): ful purpose."- sive leach against brokers of loans or (11 That the defendant [e.g., officer/ (2) "Financialinstitution." Afinancial customers of banks who use third- director1 of said financial institution institution includes an inswed deposi- parties or fictitious entities to obtain solicited [requested/denlandedl for the tory institution (bank or savings and financing. Both $371(conspiracy) and benefic of himself [or another1 or ac- loan), a credit union whose accounts § 2 (aiding and abetting) provisions cepted [agreed to accept1 something of are inswed by NCUA, a Federal Home have been utilized aggressively by value from ; and Loan Bank or member, a System insti- ptosecutois to punish third-pal ties wha (2) That the defendant did so cor- tution of the Farm C~editSystem, a intentionally participate in the conduct ruptly, intending to be influenced small business investment company, proscribed by $ 215$m An offense under [rewarded1 in connection with any and a depo3itory institution holding. $ 215 also may constitute a separate business [transactionl of the financial company."' offense under 18 U.S.C. $5 656-657 institution. (3) "Reward." One author contends (MisapplicationandEmbezzlement from c. Statutory Defenses in 5 215(c) that the element "reward" as used in federally insured instihltions, discussed Subsection g 215(c) expressly pro- 5 215 can he proved by showing that the in Section lV.B.6 beiow). Additionally, vides that § 215CaI (1) and (a) (21 ". . . "payment or promise of payment to a fedetal prosecutols may chatacterize a shall not apply to bona fide salary, banker" . . . was made because of the 5 215 violation as a mail or wire fiaud

~anklitigation @$&prior to joining Vinson & Elkins in 1987, Mr. Sabalos +g4 tnnt United ~tafeskorneyin the Criminal Division, Southern District of ~exp? joining the United States Attorney's Office in 1986, Mr. Sabalos was a T i3f.d for the US. Department of Justice in Washington, D.C. Mr. Sabalos $& ltly elected to the Board of Directors of the Texas Criminal Defense Llwye' - tion and is a member of the National Association of Cri~i~inalDefenseAttornej&

' Mr. Sabalos has

>,~?!:~:~~y:~;;..:<.,,:><*, ..- .' -. . ,..2 . ., . " . , ' ' ,/"' ;.. ,. 0. < . ,. .>.-'A . l,l;&e IS & Ifis I.,, Russell~~~~ R. Oliver Of CoUnrcl'in tllc ~~~~t~~~'i,~&of~]&on I .includes regulatory advice and special co~~~~$[~$y&$#&~~.@:~$~cialinstituti&& hefore joining Vinson Elkins in 1@87,;@. ..blhr~:seWd1:0y;ei3Su?years as GqFd Counsel of the Texas Savings and ~6$~@$~&~k@~,$$~~~~$~~8lyofh~~@$# ,enforcement issues. Previously, M~.B erk&se~e&p t%;,tZ~r8l'Zounse1-A16"$n ;at the Texas State Securities Boad :Pg@;~&~~$~,@i~~$~~&@,i&$~@$%~ate practicgjtji :Austin, and served three years a~ti$&.~@ii~:&:fh$U:&.&~$nd&Advocate ene ergs 0s.He is still active in tan%N1~$l;~9~~3;w@@~.@~~~~~~@~ed in 1%9&. :promotion to Captain. Mr. O!~~~@n~ya~&$~e&~t~6~P@!~~1@0a~lconferencq,~ ' gpi& ~~g~~@,v~~tpli:i~~:A~~:.@$:,;Ti !!$ ~~~i~#~~~ii!~@:j,y~au~to at!? war&:~~~e~i~i~Au~ti~$oh-$neye?ss,u%ck~bu~Ine~qlaptw~~rs~t. . thegraduate :, dets.. ., - i;... , . . ;L . ;-. ,.? ,I .' , , 8,

OCTOBER 1990 VOICE FOR THE DEFENSE -

"kickback" ~chenle.~As a practical fully" are met if the defendant knew the books); matter, experienced prosecutors often statement was false and did not act f3) That the defendant did so know- indict under $ 1341/1343 (mail fraud through accident or honest inadvel- ing it was false (or omitting a material wire fraud, discussed in Section 1V.B.8 tence.* Further, some courts have held fact leading to a false record or state- below) because of therr familia~itywith that "reckless disregard" or "reckless ment); and these provisions and because the label indifference" can satisfy scienter when (4) (With respect to paragraph 3 "kickback" has a strong, negative ap- the defendant makes a false material offenses) That the defendant did so peal to jurors. Because various statutes statementandconsciouslyavoidslearn- intending to cheat or deceive the bank. used in bank fraud casesrequire proof ing the true facts or intends to deceive c. Relevant Cases of different facts to meet the essential the government.w Nearly all of the false statement pro- elements of each offense chmged, a 4. False Statement/Entries/Omissions visions, (e.g 18 U.S.C. 1001, discussed Blodzbzrqerdefense will rarely, if ever, in Bank Recolds (18 U.S.C. 5 1005 and abovejrequire "materiality." "Mate~ial- be a~ailable.~ 0 1006) ity" isnot a questionfor the jury but one e. Effective Dates a. Three Paragaphs -Three Offenses for the Court.iu In one case, the Fifth Under the Comprehensive Crime Section 1005 contains three separate Circuit upheld a conviction where the Control Aet of 1984,g 215 was amended paragraphs, each constituting a sepa- false ently was made with "intent to Prior to 1984, 5 215 did not expressly rate offense. Paragraph one (I) makes injure or defiaud the bank.""" cover the "offeror ' of the b~ibe,did not encompass all federally insured institu- !. . some cotols have held that "reckIess ddisregard" or "reckless tions nor include all %on-loan ttansac- indifferenceNcafz satisfy sdenter urhm the defendant makes a fake tions" of a financial institution.s The stahlte, as amended, left unclearwhether nzaterial statement and consciously avoids learning the true facts or "co~ruptintent" ora meregeneral intent infends to deceive thegove~-rzment." was an essential element of the of- fense.%' Subsequently, $ 215 mas unlawful theisstance of bank notes by d. Application of 18 U.S.C. 5 371 and amended to require proof of "corrupt a director, officer or agent or employee 5 2 intent" (effective August 4, 1986). As of a financial institutionrmwithout au- The misapphcation provisions of such, ~egardlessof the date of any thor&ation of the Board of Di~ectors § 656 and $ 657 and the false entry alleged offense under 5 215, counsel withthe intent to injure or defraud the provisions prosc~tbeconduct of finan- should insist upon an inst~uctionre- bank or company, or any other com- cial institution insiders. Forp~rpposesof quiring proof of ''co~'ruptintent."' pany, body politic or corporate, or any conspi12cy nnder g 371, a non-inslder 3 False Statements (18 U.S.C. 5 1001). individual person, or to deceive any can be chaged with the insider if there a. Essential Elements of the Offense:" officer of the bank or company, or the was an agreement with the insider to (1) That the defendant made a false Conlpt~ollerof the Currency, or the defraud the institution or violate the statement [gave a false document1 to F.D.I.C., or any agent or exanliner bank's p~ocetlures. For purposes of [name department or agency of appointed to examine the affairs of the aiding and abetting under S 2, particw United States Governmentl; bank or company, or the Board of lady under 5 1341 and 1343 (nlail fraud (2) Tllat the defendant made the Governors of the Federal Reserve Sys- and wire fraud, respectively), it is not statement intentionally, knowing that it tenl.i0' Paragraph two (2) makes unlaw- necessaiy to prove that a defendant, was false; and ful the issuanceof a bank obligation by charged under g 2, had knowledge of (3) That the defendantmade the false a director, officer or agent of a fedaally the particular means by which the prin- statement for the pu~poseof mislead- insured institution without authoriza- cipal in the clime would carly out the ing the - [name of department or tion of the Board of Dirzctors with the china1 activity 1- agency]. intent. Palagraph three (3) prosc~ibes 5. False Statement to F.D.I.C. (18 U.S.C. b. General Discussion. false entries in bank documents. 5 1007) This statute would apply to the Sectian 1006 is nearly identical to a. Essential Elements of Offense: numerous repwts, applications and $ 1005: S 1006 p~vsc~ihesthe same con- (1) That rhe defendant knowingly written submissions (e.g., business duct of federally insured savings and made or invited reliance on a false, plans) that insured financial instihrtions loaninstitutions, c~editunionsandother forged, or counterfeit statement, docu- must file with thetr regulators. It is not financial institutions. In addition, ment or thing necessary that the prosecutton prove 5 1005 and 5 1006 are often used in (2) FOI the purpose of influencing in rhar the departnlenr or agency was in conjunction with offenses nnder 18 any way the action of the Federal fact misled PI Fulthei; the court, not the U.S.C. $656, !j 657 Theft, Embezzlement Deposit Insurance Corporati~n.~ jury, detetmines whethef the false state- and Ivlisapplication pmvisions.'"2 Interestingk, no reported cases refer ment was material.* b. EssentialElementsof the Offense 08 to criminal prosecutions under this c. Intent. U.S.C. 5 1005, Third Pamg~aph) 'I'he scienter standard is "knowingly (I) That the bank/institution was and wvillfully."" However, the Govern- federally insmed; ment need not prove that the defendant (2) That the defendant made a false had actual knowledge of the agency's entry in a hook (recod or statement) of jurisdiction.v7 One court has stared that the bank (or omitted a material fact that 773i.s article will bn coWnrred in firtrrre the elements of "knowingly and will- should have been enteredin the bank's iscres of Voice.

OCTOBER 19W

VOICE FOR THE DEFENSE FEDERAL IMPACT DECISIONS

bj~Charles Bla~ralzd Kevin Collills

1. In Re Grand Juiy Proceedfngs by raising the attorney-client piivilege. essence then, the attorney-client doc- 88-9(Newtott), _F.2d_, No. 90-5232 The district coiut denied the motion, trine plotects noll-pi~vilegedinfornla- (11th Circuit, April 6, 1990). granred him use imnlunity, and ordered tion - the identity of a client -when hnn to testify and p~aducethe docu- disclosure of such would disclose other ISSUE Whether fee mfo~mationand nlents. When he did not, he was held privileged communication, such as or a client's identity enjoy the protec- in contempt. motive or stlategy, and when the in- tion of the attorney-client privilege. Ordinarily, the identity of a client and criminating natule of the privileged the receipt of fees therefionl are not conununication is antic~patedby the DISCUSSION Pulsuant to a federal privileged. In U~zitezlStntesu.Jo~ies,517 client, who has a leasonable expecta- grand jury subpoena, Newton, a law- P.Zd 666 (5th Cir. 1975), the court held tion that information will be kept con- yer, was to appear and produce docu- that the identity of anunknownclient is fidential. ments relating to an unidentified 'Tohn protected by the attorney-client prrvi- Newton stated his client hired him in Doe" client. The subpoena sought the lege where disclosure of that identity connection with the client's indictnlent . name of theclient, thename of another would also reveal the privileged motive in a separate criminal matter. Accord- person whogave the lanyer a cashier's of the client in seeking legal advice. ingly, the court stated that the client did check for fees, and any information the Thus, the identity of the client could not have a reasonable expectation that client co~nnlunicatedto Newton con constitute a "link that could faun a his name would be kept confidential. ceming payment of the cashier's check. chain of testimony necesary to convict Also the fact that disclosure of his Newton sought to quash the subpoena, an individual of a fede~alc~itne. In identiry would reveal plior indictments

.' , ,.,, Z" x. c -. -,. +&>; -.:~ ~~;,;.,<* ;;-g;-,,;z,<,':;; ;;;:, ,;,:+::v$ :;,:>;.:<~i~.5:.;;;y;.,:;;;;~.~; ::.-<,;;::: ,;.. $,.; . . . . . : . .*' . '<:*,,,, ~,-.5~&$io~^.~~lllnsbegan his prcp:~rhy cclur&([email protected]* ill $r: IV+chi.loy :, :: _.. h~r.~~llinsrl~~k~~dt~~rihiit~~lS~at~:si)isirtctJu~ge:'~. -$... 'lJ1~1ng1ad11iriot1Sro!n . inwschool, !,.willian~K. Collinso~~.I!;lstcrn' and Wfcstcrrn i)ist~~$is'~~S,Mi~ouri.Aftera oncrycar,, ' clclkship, l~eet~tcrcdprivrtr pri~qtiycin K:~trsas(:jty;hlixs~~ufi,kfwo ll~ovingto l)allas,. ' ~'li!nas,to siwciali~cin the pnciice orc~i~~~in;~l,lnw.110 is curn:ntly an associetc in tI16":. .'&hit$colk~r c!j!nc s?ctiy~at J~I~I~IIJI& (;il)bs. .$!r. ,c~llinsh+ hq$,n;alfi~$tcdlo the . :.Mi%u.i;ri.;, Srate I3a.r; No~!hern I)isr~ict.. . of'l:exispa< &~l.tlrd. ...SIiti..I$r.of Yrx'as:: c :: , ~...... , ..:. :., ,;;, -,.;;.* z,:\!... : .... . < ' ...... ,.l . .. . , - . . .' , . ,...... OCTOBER 1990 VOICE FOR THE DEFENSE

or a criminal record is of no conse- that Congress shall make no law re- both constitutional tradition and com- quence because such reconls are pub- specting an eshblishnlent of religion, mon sense. lic documents and thus not privileged. or prohibiting the free exercise thereof Finally, the faathat the client'sattorney's Thus, the First Amendment excludes all 3. Florida u. We*, -US, No. 88- fees were paid for by an unidentified governmental regulation of religious 1835 (April 18,1989). third-person does not disclose privi- beliefs as such. The Coun then stated leged communications or strategy. that the exercise of religion often in- ISSUE: Whether the absence of any Accordingly, based on the facts herein, volves not only belief and profession, highway patrol policy with respect to the disclosure af the client's identity but the perfomlance of (or abstention the opening of closed containers pcu- reveals the client's name, and nothing from) physical acts: assembljng with suant loan inventory search constitutes more. Disposing of a final point, the othas for a worship service, or panici- sufficient regulation w~thinthe mean- court ruled that disclosure of the infor- pating in sacramental uses of bread and ing of the Fourth Amendment. mation did nor violate state bar rules of wine, for example. Thiy if a state confidentiality because questions of sought to ban such acts or abstentions DISCUSSION, This decision was based attorney-client privilege are governed when engaged in for religious reasons, on the precedent of Colorudou. Bertltze, by federal colnnlon law. or only because of the religious belief 479 U.S. 367 (1987) where the Court that they display, it would violate the held that in the absence of a policy 2. Employment Wsion, Dregm Constitution. specifically requiring the opening of Department of Human Resources However, the Cautt found that de- closed containers found during a legiti- v. Smltb, -US-, No. 88-1213 (April fendants herein sought to extend the mate inventory search, the search tray 17,1991)). meaning of prohibiting the free exer- not be permitted. Thus, the policy or cise of religion one large step further practice governing inventory searches ISSUE: Whether the flee exercise because they assert that prohibiting the should be designed to produce an clause of the First hndment pre- Free exercise of religion includes re- inventory, not to allow an indlviduaI cludes the enforcement of a generally quiring any individual to observe a police officer so much latitude that applicable and otherwise neutral law generally applic-able law that requires invento~ysearches are turned into a that regulates criminal activity, but has (or forbids) the performance of an act purposeful and general means of dis- an incidental effect of burdening reli- that their religious belief fabids (or re- covering evidence of a crime. How- gious conduct. quires). Thus. if prohibiting the exer- ever, the Cault found that there is no rise of ~eligionis not the object of the reason to that inventory searches DISCUSSION;. Oregon law prohibits jtatute, bur merely an incidental effect be conducted in a totally mechanicalall the knowing or intentional possession 3fa generally applicable and otherwise or nothing fashion. The police officer of a controlled substance unless the didprovision, the First Amendment is may be allowed sufficient latitude to substance has been prescribed by a sffended according to defendants. determine whether a pmticnlar con- medical practitioner. In this case, de- The Court rejected this reasoning, tainer should or should not be opened fendants had been Bred fion~their johs rndalso the Sberbertv. Verizer;374 US. in light of the nature of the search and with a p~ivatedrug rehabilitation or- i98 09631 test, which ~equiresthat characte~isticsof the container itself. ganization hecause they ingested pe- pvernmental action impinging a reli- Thus, policies requir ing the opening of yote for sacramental purposes as zious practice must be justified by a all containers or opening no containew members of the Native American :ompelling governmental interest. at all are unquestionably pennissible. It Church. Defendants then applied to Voting that on three occasions state would be equally pemissible to allow the employnlent divis~onfor unem- ~nemploymentconlpensation rules theopeningof closed containers whose ployment compensation and were tle- vere invalidated by the Coult, when contents the officers detelmine they are ternlined to be ineligible for benefits hey conditioned the availability of unable to asceltainfrom exantining the due to wo~krelated misconduct. On xnefits upon an applicant's willing- container's exterior. Thus, the allow- appeal, the Oregon Supreme Court less to wolk under conditions forbid- ance of the exelcise of some judgment reasoned that the criminality of the fen by his religion, the Coult nonethe- based upon the purposes of an inven- conduct was irrelevant to resolution of ess concluded the sounder approach is toiy search does not violate the Fourth the constititiiondl claim. Hence, the o hold that, test inapplicable to an Amendment. misconduct provision under which re- sross-the-board cmininal prohibition The Court then held that since the spondents were disqualified was not to >faparticular form of conduct. Thus Florida highway patrol had no policy enforce the state uinlinal laws, but to he government's ability to enforce whatsoever with respect to the opening preserve the financial integrity of the ;enelally applicable pohibitions on of a closed container enclosed in an unemnployment compeusationh~nd,and ocially hamfill conduct cannot de- inventoly sealch, the instant search was that pulpose was inadequate to justify )end on measuring the effect of gov- not sufficiently regulated to satisfy the the burden that this qualification im- ,mn~entalactlonona leligious objector's Fourth Amendment and the contra- posed on defendants' religious prac- piritual development. Hence, an band found in the suitcase was prop- tice. The Oregon cou~tconcluded that ndividual's obligation to obey such a erly suppressed by the Supreme Court respondents were entitled to payment aw is not contingent upon the law ~f Plo1ida.W of unemployment benefits. onfoming wich his religious beliefs, Inreversing, thesup~eineCoun noted lnless the state's interest is compelling, that the free exercise clause provides lecause sucha requirement contradicts

OCTOBER 1990 VOICE FOR THE DEFENSE GRANTED PETITIONS FOR DISCRETIONARY REVIEW

Si~rceJ~rly17, 1985, the ~~l~~i~listra-Gambling Place, Is Penal Code Sec. tiwstaff~rttor~iq~softheCo~o.tofCrimi- 47.04(a) unconstttutionally vague? nal Appeals have compiled, in the nor- PDR 0371-9006/2m, Hm~isCo. (A's r~talcortrse of brrsi~wss,a list of cases PDR), \IYre?dell CIq Wilson,I~pr,y to a mxflegal issues on rvhicb the C'rrl has Child: Whether egregious harm is gralttedpetitiom for review. Altho~rgh PDR 1390-88 06/13/90, IInrris CO., shown where trial court failed to in- origr~zcff&p~~p~rmclfori~~ter~~al~&eo?~&,(A's PDm, Kmlqr Sod@o, CditCad stluct jury that "intentionally and know- the Court bas atrl/~orhcltzlease of the Abrrse Qrior co~tuiction):(1) Did the ingly" applied only to d of list forp~tblicationnrzd for me by the Cow t of Appeals en in finding no error appellant's conduct and not to conduct be~~cband bur of Texas. TBe issues in the trial cou~t'sdenial of 10 days to itself in this injury to a child case? IYsted am armmaries ns worded by the pepare following amendment of the stas and rlo not ~~ecmari!yreflect ei- indictment? Is ham an issue? t/~erthe ~.enso~li~zgor the ph~nseology used by thepartres or hj~the Corof. PDR 0384-9006/13/90, Dallas Co. (A's i7~efollowing nre the cases and issties PDRj, Lee Arthrrr Yolrng, Forge~y: on tuhich the Cowl of Critni~maIAppeals PDR 0334-9&0334-90/0335-96 \Vhether appellant may argue gra~mtedreview but which the Co~ttfbas 0335-90 06/7390, D~lerCo., (#I Dd, p& that his Batson claim is valid by rzof jet tle1iu~1.da ~uritfettopinrorr: (#2 SPA), (#I DA;! (2 SPA), IVil[lar?l presenting a comparrson of white ve- Rolml Oliver, Jr, IJoss Methamphet- nhe petsons not struck by the State to PDR 0322-90 05/30,!90, El Pm, (Ss atni~re,POS. Phe81y1metoite over 400 black venire persons struck by State? PDR), De~r/Elol~~ls,i71e~ofF~1l~n1e1zt: Gr~8nss: (1) Whether failure to object Appellant did not use this comparison May a theft indictment be amended to prior to t~ialthat an indictment lacks a algument at trial nllege a dtfferent owner and that the culpable mental smte waives the light defendant belie~dthe property had to complain on appeal. Art. 1.14(b), been stolen by anotherunder Art. 28.10 V.A C.C.P.#, C2) Whether art. 34.261, (4 grounds)? V.A.C.C.P., gives a white def. the right PDR 0433-90,0434-90 09/12/90, to challenge the State's perenlptory Dallas Co. (SS PDR), Felrx Canllt, Agg. strikes of black venire men~be~s. Ses Asa~rll:Did theappellate court elr by holding it was reversible elror to PDR 0347-90 05/3OL90, Ddlas, (Ss admit the testin~onyof a DHS investiga- PDR), Michael Lee Hill, Aggravated tor as to statements nude by defendant? Robbery (1) Whether Batson objection PDR 0365-9006/13/90, B~wrCo. (X's was timely when made aftel venire PDR), Antonio Go~rzales,IMltrtlel? (1) dismissed but before jury sworn? (2) Whether the accused's right to confron- Whether COA's determination of But- tation was violated by the witness tes- PDR 0453-90OWZ/YO, HarrisCo. (A's son euor was correct? tlfying by two-way closed circuit TV. PDR, Gilbem A. rVtr~$io,4. Ses. Assault: Did the trial court e~rin bankg appellant from asking the venice on voic dire about the issue afconiplainant PDR 0357-90 05/30/90, [Iarris, (9s PDR 0382-90 06/13/90, Dallas Co., being a nun, Ef that euor was preserved PDRj, Shar011Lee Rmer, Brr&ay of (A'sPDRj, O~~arEn~ilioA~ila,Poss. of even though appellant failed to raise Habitation: Was Counsel ineffective in Cocai~~e:(1) Whether the taint of D's the issue during voir dire? recom~nendingappellantgoto thecoua illegal alcest rende~edhis confession for punishmncnt whentherewasa deadly "invoIunta~y." weapon allegation which if tlue would preclude the judge from grsntq pro- PDR 0458-9008/12/90, Hmrls Co. (A's bation>AT. 42.12, Sec. 3g(a)12),VACC11. PDR), Charlie Sinlpvn, Del. of Siln. PDR 0429-9006/13/90, Erazor& Co., Co~~tr,S~rhstance: Is there a conflict (S'sPDR), Mitc~~e~llK.Bo~rlde& Rabhmy between the decision of the 1st COA EB~rrglaiyof~iHabitatiom (1) Was the and the decision rendered by the 14th PDR 0430-90 OCi20/90, Rireces, (S's evidence insufficient, as found by the COA in Boyki~v. State, 779//134? PDR), James Wi~fordTay101; Reepinga Court of Appeals?# VOICE FOR THE DEFENSE DWI PRACTICE GEMS What Every Innocent Person Who Drinks Should Know About DWI-Part 3

III. O.K. What if Pm Stopped For DWI arrests actually receive increased with him. DWI? What AdvfceDo You Have Par pay as a result of their subsequent court Me as a Lawyer? appearances for those alrests. Indeed, 4. Is there anytbing I should do in some cases the officer, in addition to before getting out of my vehicle? 1. Think &st, use common sense, receiving benefits of a private patrol car Yes, takc your drivey's license and and be open minded1 for his use only and to having his days proof of insurance card out of your First, don't drinkalcohol ol usedrugs off and wok hours ked, received an wallet and bhgthem wirh you to give and then drive! No one likes drunk amount equal to his regtdar pay for to the officer. They will usually be the drive~sas they are clearly a danger to court appearances. first two things he will ask ro see. If you othe~sand themselves. 1 don't know of were to hand your wallet to the officer, a single sane person who'd he happy to 2, What do I do if the offleer signah with the license and insuiance card rn be an the receiving end of a 3,500 me to stop by turning on his emer- it, he would not take it for fear of being pound projectile being piloted by a gency lights? accused of lemoving money or some- intoxicated land pilot. Drive to the right lane as cautiously thing else of value. Acco~dingly,sum Second, recognize that police officers and quickly as you can and continue he would then ask you to remove the have a vely hard and dangerous job there until you can either safely park on license and insumnce card from it, you and thatwe all owe thegdofficeman the shoulder or in a parking lot. Next, should do it before you leave the ve- extreme debt to gratitude. It should, take your vehicle out of geal, shut off hicle. These actions on your part will however, be ~elllembetedthat all po- the engine and iadio, and turn on your denlonsfrate your cooperationand will lice officers have a great deal of discre- emergency flashers. Such quick and lessen the officer's fear fxctor as your tion to arrest a person and that expeperi- cautious action on your part will indi- hands will always he visible to him. ence has proved, time and time again, cate that your no~malmental faculties They wrll also evidence that you have that a person's lack ot manners and are not impai~ed. In addit~on,if the not lost the no~maluse of your mental overt rudeness is the quickest way to officer just wanted to pass yoiEvehicle. faculties as the actions were both lea- being placed in handcirffs and in the then your actions will allow him to do sonable and p~udenk. back seat of a patrol car. Yon should that in a safe manner. also recognize the reality that Dm, for 5. If asked, should I admit to drink- puposes of an officer making an art-est, 3. Having drawn the black bean by ing an alcohol beverage? is sttictly his opinmn that the cnme has being stopped, should I get out of This is a tough questLon but the been co~nrnitted. Like 811 jobs, some the car? answer is genesally "yes." Since you officersale better than othersat it. They Yes! However, attempt to keep your will likely have an odor of an alcoholic are all hvnlannot only subject to making hands visible and do not make fast beverage on your breath, it makes no human mistakes, but also, to uncon- movements. Do not place your hands sense to deny that you have had a scious psychological influences which inyourpockets. Exit yourcarandwalk drink. In fact, with alcoholic bevelage almost always gwvitate toward guilt. totlre right rearof your vehicle and wait odor present and you making a denial, It must also be nofed that the work of for the officer. Do not lean on your it is only human nature for the off~erto a police officer is rely competitive, and vehicle or stand between it and the find that yon arc less than cledible. as a result thereof, officers like to win police car. Here, it !nust be understmd This fact to the officer would then likely their raxs. lixpcricnce lms S~I(J\VII~II;II that theofficer does not know you and give rise to a suspicion that you are n~ore111:1n :I few I~avc~nisrcnrese~~ted your intentions yet. This is an ex- trying to hide the fact that many drinlrs facts and told falsehoods to'win their tremely critical time for him as he will were consumed case. One sl~ouldkeep an open mind be looking for a pomible weapon you as to other motivations for the artest may have or' or for any threat to Ids 6. Do I admit to how many, where than binlply that the d~iverwas intoxi- safety that you may present. Recogniz- and when? Is honesty the best cated in determining the reason for a ing the officer's initial appvehcnsion Pllcy? DWI anest. For example, recent evi- and the ease at which it may be less- It depends. Any adnwsion more dence has denlonstlated that most offi- ened, you can establish an initial posi- than "two" will likely ~esultin your ce~~who make numerous tlaffic and tive cuntact, rather than a negative one, arrest. This is especially true xvherc tlre OCTOBER 1990 VOICE FOR THE DEFENSE

officer fails to ask "when?" because, fol he again ask about alcohol consuinp- so as to allow the officer to maintain the exanlple, four beers is tnuch differen tion infornl him of your choice to nat status quo so that he may dispel or than four beers over eight horns. answer any questions bur those related affinl his reasonable suspicions. If the As to the second question, it is no! to the specific traffic offense - and, office1 waits too long ar urnasonably whether you tell the truth or fudge or stick to yow right not to incriminate pmeeds beyond the purpose for his the truth that is impoitant. Rather, the yourself. initial detention, then he again violates answer really lies in whether or not yo1 Well, what about where the officer the person's constitutional right not to tell the truth ordon't answer at all. Ir says you're not underarrest but you can be unreasonably seized. this regard, the t~uthhas resulted ir not leave. This is close to the typical Lastly, where the officer actually ar- many non-intoxicated drivers being D\WI scenario. Here, the safe thing to rests the peison he must have a greater arrested and hassiibsequemly cost them do is to infornl the officer that you quantum of evidence than merely a a small foitune for bond, automobile would prefer not to answer any more reasonable and a~ticulatesuspicion.In- towing, days from work and an attor- questions and would like to have a deed, he must have what is constitu- ney to prove their innocence. lawyer present. Be pohte and not tionally termed "probable cause" to talkative! Doing this, you have in effect believe a clime has occw~ed. "Prob- 7. If I'm not golng to answer, whai "punted the ball" to the officer. He able cause" has been defied by our do I do? must now choose to let you go or to courts as a nleasute of evidence that Keep in mind that ou~Pede~d and prolong his investigation. Again, if he would lead a reasonable pelson, based State Constitutions guarantee that you lets you go, count you1 blessings and on that person's experience and train- do not have to incrinnnate youiself. drive safely. Where he prolongs your ing, m believe that a crime has oc- Politely ask the officer why he stopped roadside stay, he must be careful not to curred. This probable cause measure you and if you are presently under violate your federal and state consritn- requires a lesser quantum of evidence arrest. Under our law a person can be tional lights to not be unieasonably than is requid to convict a person of under arrest and yet not be told so. seized. Your invocation of your light to a crime (proof beyond a reasonable Where the officer indicates that you remain silent and to any attorney's doubt) or towin a civil lamuit (prepon- are under ailest, then you should presence makes it inore difficult for the derance of the evidence, i.e., 51%). immediately inform him of your desire officer to avoid a violation of your In any situation whe~ean officer to have an attoiney piesent for any constitutional right to no? be unrea- "detains" a peison on less evidence further qnestions. Do not refuse 01 sonably seized. than "a reasonable and articulate suspi- agree to perform police field sobriety 'So fuither explain, a police officer, cion" or arrests a person on less evi- exercises Rather, tell the oofcer you absent any belief criminal activity is dence than "probable cause," he vio- want advice from a lawyer to help you afoot, has a light to walk up to any lates that person's constihitiona~rights decide if you will refuse or agree to person in a puldic place and talk to not m be unreasonably seized. The perform them. them. The person, however, may simply remedy for this violation is to exclude On the other hand, should the officer walk away. Indeed, our law is clear that fronl the piosecution's case any and all say you are not undcr arrest then a the person's action in walking away evidence that was derived or stemmed different approach is in order. Politely cannot be used as evidence that he is from the violation. ask if "I'm going to be written a traffic guilty of something, i.e., that invocation Accordingly, when you find youiself ticket?" and if so, "Will I be free to leave of a constitutional right cannot be in the typical DWI scenario, i.e., where upon your con~pletionof it?" Whe~ethe equated to guilt. Where the officer, you're being detained for a D\W inves- officer says "yes" to both questions, through use of his police status, either tigation but you're not yet arrested, it is count your blessings, remain still and impliedly or expressly detains the per- best to be polite, to invoke your rights non-threatening, becourteousandonly son, he violates the individual's right to remainsilent and to have an attorney speak when spoken to -never volun- not to be unreasonably seized. To present, to not accidentally incriminate teer info~nlationas that will only serve lustify a brief detention of a person, the or convict yonrself, and to let the officer to prolong your roadside stay. Should officer must have a specific and articu- do the best he can on the evidence he lace reasonable suspicion that the per- can legally develop. son isinvolved in criminal activity. This 8. IfI'marrestedandtransported to justification cannot be legally made on the statfon house, do I perform the the basis of a simple hunch or a gut sobriety exercises before a video Feeling. camera recorder, submit to the In- This detention tnust be narrowly toxIlyzer test and answer questions limited in both its duration and scope coneernlng drinking?

,, . * ...... , . , Ai+(rialidti's't)oe~lor Uiwctps. lle is d n;~tion:~llyrucognizcd sc~~~in~r~le~iu~~,.ii'd$.; -j?umnl ;d~or.I le is cspeci~llynoted kwl~isdcfcnsive ~d~nkjuesin druHc@~&pr~~!e~;. I VOICE FOR THE DEFENSE I Maybe, never and maybe! Fi~st, axiomatic that a lawyer can only give and siste~Americans are killed and however, immediately inform the offi- you ploper advice where you can first mainled in alcohol-dated autonlobilc cer, and all officers thereafter, that you tell him what has happened, i.e., he accidents. The financial costs of these want to remain silenr until such tme applies the law to the facts and he accidents and of other- alco1~01health you can contact an attomey and have a acco~dinglyadvises you what to do. prob-ohkim to society is in the billions of p~ivateconsultation with him as to Always do exactly what your lawyer dollars. Logically, the remedy is simple anything and everything the officer will tells you to do - nothing more and - not only do we outlaw the act of ask you except for bad. Re careful to nothing less. If he tells you to pelform d~inking,and thereafter d~iving,but tell the officers that you are neither exercises before a video camet-a and/or also, we outlaw alcohol altogether. Our refusing or agreeing to cooperate with to answer police questions concerning legidahlre, however, clearly lacks the them. Rather, tell them that your deci- alcohol consumption, then do it. courage to pass this logical law. Nev- sion to refuse or agree will he premised In regard to the Intoxilyzer breath ertheless, fmn both an academic and upon the advice you receive from your test, if your lawyer tells you to sii?zp[Jt historicalview,such a law would p~oba- lanyer. take it, I'd recommend changing law- bly be offensive to our respective no- Sometin~esofficers will say "you can't yets It is, at least in my opinion,wrong tions of a human berng's iwalienahle have a lawyet yet." This dtenoccuss at to advise a petson to take a test on a right to freedom of choice. Accord- the alcohol concentration test request machine which is incapable of being ingly, we are compelled to live in a and the video exercise test request independently vers~edas acculate and democratic society where the fieedoni stage This police "you can't have a ~eliable.It is equally wrong to advise a to mink alcoi~oland diive is balanced lawyer" statement, depending on the client to submit to such a test where the against a law which overrides that free- circumstancesof your case, may or may police fail to preselve, and the~ein don1 at the point where the individual not be tme, bur you will have no way effect destroy it, the breath specimen beconles intoxicated. of verifying its tn~thuntil you speak to they will ostensibly use to prove you Ina true detnocmcy every citizen has your lawyer. Thelrfore, the best thing guilty. PelsonaIly, I'm not going to take a moral ~esponsibilityto respect the to do is remain polite, but firnl, in your a test that can't be rechecked to deter- life, liberty and property of evety other requests to speak to an attorney. Sim- mine its validity. citizen. This ought be especially true ply put, do not take "no" for an answer. To my mind, the best indicato~of a for those of us who drink and thereafter When the police alhyou the op- person not having lost the nomal use d~ive.Hopehllly, in the futtne, each of poltunity to make a telephone call, of his mental fiacultics is the fact that he us individually will give due honor to immediately use it. Make a call to any simpfywon't take the breath test, Heie, our fellow citizens, as well as our nlod attorney you know. If you don't know I believe a person would have to be responsibility, by not mixing diinking an attorney, ask to use the yellow or dlunk to agree to take a police test that and driving. A conscious judgment to business pages to fmd one or ask to call is so surrounded in dehate about its stay sober when d~ivingis not only the telephone company's directory non-reliability and inaccu~aciesand good citizenship, but also a denioc~atic assistance nun~ber. A good place to where the police machine's own manu- blessing to and from our neighboa. sta~tin the phone hook might be under facturer doesn't warrant it fil for any Our good citizenship democratic the listing for you local criminal law particular pu~pose-including bleat11 blessmgs are equally applicable to the bar associarion, e.g., the IParris County testing. Under such drcuimtances, exeluse of another's fieedotn of choice Ciiminal Lawyers Association, or under only a dnmk, insane, uneducated, or to diink adinvocation of their consti- the heading "board certified criminal coe~redpason would submit to a tutional lights when they are seized by law speciahsts." Make the call even if breath test where the penalty for failuie thegovemnent. Ow present republic's you don't know 01 have a bnyer, your might result in 2 yeals confinement, a inhe~itanceuf a "p~esumptionof inno- lawyer is beyond local distance dialing, $2,000 00 fine and a year's driver's cence" to every ciri~enaccused of any or your arrest time is not at regular licensesuspension, not to mentionother crime nlust remain paramount alllongst business hours of most bw offices. social andautomobile insurance conse- om thoughts. This is especially true for Here, you should know that most law quences, as opposed to a possible the person charged with DIVI because offices answer their phone even after ninety-day suspension fo~test refusal. the uimeis loosely definedby anothel's closing through use of an answering In other words, in my opinion, know- opinion and is one that requires no service. Many of these services can ing the above, a person demonst~xtes intent to commit. In a larger sense, actually connect you directly to an no loss of his normal mental faculties by however, because we as Americans are attomey at his home. refusingthe test but does by agreeing to a fair people, we ought always lemenl- Upon leaching an attomey on the take it. Clearly, takrng into considem- ber the "p~esumptionof innocence" in telephone be sure to ask the off~erfor tion all the consequences and facts the DWI case because the person ar- a chance to speak with him in private. noted, it cannot be reasonable and tested might be you someday. Accord- Whe~ethe police refuse to allow you prudent judgment to take such a non- ingly, please use your cornnlon sense, privacy, they violate your light to an preserved test. Lastly, let nle add one remember your constitutionalrightsand attorney Absent giving you p~ivacy, other "believe it or not" fact here - lespect those of yourneighbor, support the police provide you with ody a nmst police officers join in nly opinion your police, don't drink and drive, but warm body to talk to on the telephone and would not take the breath test if you do, don't drive intoxicated. because the lawyer, in order to main- eithe~! . tain theattomey-client privilege, and to protect your right to remain silent, must lv. Conclusion tell you not to say anything. It is Every year thousands of our brother 26 OCTOBER 1990 VOICE FOR THE DEFENSE FORENSIC DNA PROFILING Requesting a Reliability Instruction by Jzraiz Martinez Goma1es

All defense lawyers should always used against hiin, is entitled to such nal cases by the due process clauses of request a reliability instruction in any protection against its misuse as call be the United States Constitution. case wheE the~eis scientific evidence. reasonably given him. . . " WIGMORE, In Stateu. Wnsi,iizgton, 622 1'.2d 986, "For evidence to contribute to [he EVIDENCE $13 (1940) at 303. "Eviden- 994 (Kansas 19811, the Supreme Goult tnlth-determining function of a trial it tiary jury instructions set standads or of Kansas upheld a reliability jury in- must be reliable." Giannelli, The guides for juries m use when consider- stmetion that was given by a trial jndge, Adn~rSsibilityof Novel Scterzl$c Eui- ing panicular kinds and types of evi- that they should detemine the reliabil- dence. Fye u. Um%d Stales, A Hay- dew- . . . included in this group of ity of the Multi-System analysrs before Ce,ittrylnte~80 COLUM. LREV. 1197, insttuctions are those that admonish or considering the blood analysis tesri- 1200 il980). caution the juty as to the limited use of mony. The trial court is mandated to give a certain kinds of evidence." CIPFS, 2 In UnitedStdtesv. IVilIkmm, 583 P.2d defendant a fair trial., Art. I, Sec. 10, CRIM.DEF.TECHNIQUES §37.03(4) 1194, 1200, note 13 (2nd Cir. 19781; TEX.CONST., VI and XIV Amendments (1982) at 37-12 UizitedStalesu. Bnller;519P.2d 463,467 of U.S. CONST.; Sheppwci u. AhwelI, The Sup~etneCoult of the United (4th Cir. 1975); Ut~itedStoteru.LOW, 767 384 US. 333 (1966); Btes v. lw~fs,361 States in I17 rr Wir~sbip,337 US. 358 F.2d 1052,1065, note 16 (4th Cir. 1985); U.S. 532 (1965). The point of the (19701, held that the 'beyond a reason- Peopleu. Rogers, 385 N.Y.S.2d 228,237 matter is that the opponent of such (sci- able doubt standard' to be pan of the entific) evidence, so likely to be mis- fundaxncntal fairness ~equiredin crimi- Nominating Committee of the TCDLA 1991 Board of Directors The election of the 1991 Board of Directo~spmvides an consists of: unprecedented opportunity for individuals who are inter- Distr~ct1-Jeff Blackbum-Amarillo ested in the Texas Q inli~ralDefense Lawyers Association to Cl~ucklaneha*-Lubbock become involved m our association. In addition to the ntslricl 2-Rod Ponton-Iil Paso officer slate that will be up for nominations, thae are Martin Undem~ood--Comstock twelve (121 slot6 for asociate directors which are one-year District 3-Royce B. West-Dallas Jack Strickland-Fort Worth appointments open for nominations Also, in 1991, there District +Web Biard-Pans isa la~genunlber of membe~sof the Road of Directors who John IIannah-Tyler are up fol ~e-electionwho amnot eligible to serve again on District 5-1. Galy 'Srichta-Houston the Board of the Association The director slots that are Jan Woodwatd Fox-Houston open &n1991 are: District 6-1. Douglas Tmka--Corpl~sChtistl 1. William A Bmuon, Ill-District %not elig~blefor rerm~nina- Kyle B Welch-McAllen tiom District 7-Mark Stevens-San Antonio 2. Charles L. Capertan-Distfict +not eligible for renondnation; Robert Price--Sari Antonlo 3. Ronald Guyer-Dlstrict 7-not eligible for renomination; Diinict MerryMoms-Austin 4. Mark C. Hall-District 1-not eligible for renomination; Randy Leavitt-Austin 5. Michael B. IieislrelCDistrict ?--eligible for rennmnation, The extent of each dist~ictfor the Texas Criminal Defense 6. JeffKearney-District %not eligible for renomination; Lawyers Association is located in the fiont of the member- 7 Lynn Wade iMdone-l)lstrict 8--not el~giblefor renomlnatlon; ship directory. If yon would like to become more active in 8. E. G. "Gerry" Morris-Dist~ict t%elistble for renomination, your association, please contact the members of the 9, J. Douglas Tmker-Drstrict ¬ elig~blefor renommation; Nominating Committee and advise them of your interest so 1 Stanley I. Weinberg-Distuct +not eligible fa rcnominl- tlon; we may discuss what you have done fox the Association 11. W~lliamA. WhiteDistrict 8-eligible for renomination; and what you can do for the Association in the future. The 12. Jack B. Zimmern~an-District %not eligible for renomina- Nominating Committee will be meeting in late Feb~uary tion; and eady March to report to the Membership its slate of Inan effort to broaden the base of the Association, I have nominees for the Board of Directo~s. appointed two individuals fiom each distlict to be on the Nonlinating Conunittee. The 199Nominating Conlmittee

OCTOBER 1990 VOICE FOR THE DEFENSE

Forensic DNA Profllinn Juan Martinez Gonzales receiv Cnntii~uedfrom pap27 is Doctor of Jurispnldrnce De (New York Sup.Ct. 1976); People u. m the University of Texas in Bairt, 453 N.Y.S.2d 343 Cl982) the has conlpiled and written tl ensic DNA Profiling Crimin appellate courts approved the use of se Manual 4n the couhtry. the trial court's use of reliability instiuc- oe" Sanchez, Tommy San tions. ouston, and Gonzales were Scientifi~evidence may "assume a exas lawyers to vigorously de posture of mystic infallibilky in the eyes ainst DNA evidence in a crirni of a july of laymen." U>zitedStates u. e, by the use ofan expert witness Addison, 498 F.2d 741, 744 (D.C. Cir. guilt-innocence stage of a 1974). Also, "an exaggerated popular He hasspokenatseveral c~i opinion of the accuracy of a particular se seminars on Forensic technique may make its use prejudicial ng. He has filed amicus c . in several cases on appeal i or likely to mislead the jury." United The scientific evidence offered by the state is their attempt to pmve their case tate appellate courts throughout tl States u. Bulier, 519 F.2d 463, 466 14th ate, where convictions resulted Cir. 1975). There is also a danger that beyond a reasonable doubt, in an effort to link the defendant to the alleged e use of forensic DNA evidence. the evidencemay begiven more weight s defense counsel in a case than is wananted. Srnte u. Spmer, 216 crime. Therefore, the scientific evi- eevdle,where there was forensic0 N.W.2d 131, 134 (1974). For all the dence that is admitted at a criminal ttial tdence Lastly, he hasw~ittenarti I above reasons the jurors as trie~sof fact is evidence, whose absence or pes- cking forensic DNA evidence should be given a reliability instruction, ence are necessary implications of the National Lawyers Gnild Pmctit so that they can consider scientific element of identity that is alleged in the and for Docket Call (Publication evidence Oike forensic DNA Profiling mdictment. Thus, scientific evidence is Harris County CriminalLauyersA evidence) presented by the state, only a factor in a criminal case, whose relia- m the event, they first find it beyond a bility must be established beyond a leasonable doubt to be reliable, reasonable doubt..

Search and Seizure Xm. App. 1981). Bottom Line: An defendant would give Pollock a pack- Contiiztredfium pa@ I6 3fficer is justified in arresting someone age of drugs. An officer waited at the hthe facts and circunlstances within his designated time and place and saw the the warrant fail, i.e., the cou~tcan treat mowledge or about which he has two men. Folloning them, he saw as a walrantless case and review to see easonably trustworthy information events unfold as tbey had been de- if it can be upheld under a warrant would wanant a reasonable and pm- sc~ibedby the confidential informant. exception. Adkim u. State, 717 S,W.M lent pelson in the belief that the sus- A wanantless alrest ws ploper be- 363 CTex. Crim. App. 19861. iect has committed an offense. If there cause oficas had prohable cause to V. Warrantless Arrests Ere specific facts within the officer's believe the defendant was committing Chapter 14 of the Code of Criminal riew to suppo~ta reasonable conclu- an offense in thelr presence -posses- Procedure ion an offense is being committed, sion of a controlled substance. The Even if a wamntless alrest is justified hen the arrest is permissible. Diwggyu. probable cause can mot be based on under one of the federal exceptions set Wte, 553 S.W.2d 375 (Tex Crim. App. what officers saw the day befole. Stzrll out in 11, supra, Texas law requires tlut 19773. Thls does not mean, however, u. Stafq 772 S.W.2d 449 (Tex. Crim. it be justified undel one of the statutoly hat an actual offense need be App. 1989). excemons in Chanter 14 of the Code of ,omtnitted. See Ajzgel v. State, 740 B. What Facts are Sufficient to Sup- Criminal Procedure. Since so many i.W.2d 727 (Tex. Clitn. App. 19871, and port a Warrantless Arrest if Some- searches take place incident to attest, xes cited at footnote 11. one Found in "Suspicious Places and sine so many arrests are made A good discussion of the probable Under Suspicious Circumstances"? w~thoutwarrant, this section will bliefly ause necessaly to make a warlantless A~ticle1403 author?zes the arrest of highlight problem areas. rlrest is found in the recent decision in persons found in suspicious places and A. What Facts are Sufnclent to Show 4dkfm u. State, 764 S.W.2d 782 (Tex. under circ~unstanceswhich show they an Offense was Commited Within .nm... App. 1988). In that case, the have been guilty of some felony or the View or Presence of a Policer hurt of C~iminalAppeals upheld a breach of peace -or be thleatened or Ofncer? uar~xntlessarlest based on infornution are abut to commit some offense Article 14.01 allows for the wanant- rorn an informant plus subsequent against the law. Th~sarea 1s more less arrest of a person when an offense rbsewationsby the policeoficer. Police difficultthan thewa~rantlessarrest under occurs within a peace officer's ptes- ~ficerswere told by a confidential and AIL 14.01 tliscussed in A, sqwa. Be- ence or view. The standard for the eliable informant that once a week cause of the potential for abuse, this is legal~tyof such a wanantless anest is ppellant would meet a man known as a statute that will bedosely watched by the same as that required for probable Pollock -they would go to Pollock's reviewing coults. It has been held to cause whenan arrest wanant is sought. louse for a sbort period of time and requre the functional equivalent of Wilson u. Stflte, 621 S.W.2d 799 (l'ex. eturn to the car, at which time the C'??ti~trredoizpnge 29 OCTOBER 1990 VOICE~ - FOR THE DEFENSE

early morning hours was committing defendant drove about three blocks Search and- Seizure criminal 11-espass). before he was stoppcd and arrested. Corztii~iiedfion~pnge 28 C. When Are Officers Justified in The Court of Criminal Appeals con- Believing a Suspect is About to Es- cluded the arrest was not proper be- probable cause. joh~~souu. St&', 722 cape? cause there was no evidence of escape S.\V.Zd 714 (Tex. Crim. App. 1986). Under A~ticle14.04, peace officercan - defendant's conduct in leaving the The following list details cases w11e1-e make a warrantless arrest if he has house was as consistent with innocent places and circumstances were suffi- satisfactory proof, based on the repre- activity as with criminal conduct. Sim ciently suspicious to justify a warrant- sentation of a credible person, that a ply going from one place to another less arrest: felony has been conmitted and the does not necessarily show evidence of *JO~JIISOJI u. Sfnfe, 722 S.W.2d 714 offenderis about to escape so that there escape. See also Green o. Stale, 727 (Tex. Crinl. App 1986) (officers were is no time to procure a wII'rant. For S.\V.Zd 263 O'ex. Crim. App. 1987) investigating murder in an apartment; purposes of this statute, if the officer (state must present evidence establish- D arrived and identified himself as observes facts amounting to satisfac- ing that circumstances precluded ob- maintenance man; however, he seemed toly pl-oof, then that officer is consid- taining a warrant); Bell o. State, 724 newous and officers tllought it was ered a "credible person" -thus, a third S.W.2d 780 (Tex. Crinl. App. 1986) peculiar for him to appear because two party is not necessaly. DejCII'Ilette u. (arrest not valid medy because officer apartment security guards were also State, 732 S.\~.2d346 CSex. Crim. App. did not know where to find defendant present; officer noticed what appeared 1987). at later time). to be blood on drfendant's pants; de- Generally, it will not be sufficient for Appendix A fendant admitted keys found in hall at the officer met-ely to assume a magis- Checklist in Considering Search the fl-ont of the unit where murder trate is not available to issue a warrant. and Seizure Clalms occurred, one of which fit the door to Fly u. St~te,639 S.\V.ZcI 463 (Tex. Crim. Ih-t Questio~l: that unit, belonged to him). App. 1982), cert denied, 103 S.Ct. 1430 Does this case involve action by gov- fCnr.rnsco u. State, 712 SS.\V.2d 120 (1983). For this reason the state statute ernment official? (Tex. Crim. App. 1986) (defendant vas is viewed as more stringent than the (Go to next question only if "yes.") found on scene of one-vehicle acci- federal standards, which do not seem to Secoud Qriestio~r: dent; officers concludecl she was in- demand proof of "exigent circum- Does the person complaining have toxicated because of her glassy eyes, stances." 1 Texas Crinlinal Practice standing -is this the proper person to slurred spcech and slow movement; Guide 5 10.03131 (1988). There must be complain? although no odor of alcohol was de- some evidence that attempts Lo locate a (Go to next question only if "yes.") tected, facts authorized defendant's magistrate were imsuccessful. Facts 7hirzl Qriestior?: arrest for public intoxication). sufficient to show inlminent escape are Is there a "search" or "seizure" in- *11feeks u. State, 653 S.\V.Zd 6 (Tex. seen in Tmpley u. State, 565 S.\V.Zd 525 volved? Crim. App. 1983) (officers patrolling (?'ex. Crim. App. 1978). There officel-s "SEARCH" = any govenunent activity high crime al-ea saw defendant walk receivedinfornation the defendantwas that infringes on a person's reasonable away fro~nvacant lot where semi-trac- staying at hotel with someone else and expectation of privacy. tor trailer t~uckand state bed truck were had paid for his room with a stolen TEST: 1) Did person have a subjective parked; he appeared to be carlying a credit card. Additionally, the license expectation of privacy? gun; officer saw the window had been number on his car did not match the 2) Is this the type of privacy interest broken on passenger side of truck and number on the room registration card. society recognizes as reasonable? wires were &angling from roof whel-e \Vhen officers went to the hotel I-oom, *I** radio had been attached). the two men were dl-essing and their "SEIZURE" = significant interference by In contrast, in the following cases, the luggage was partially packed. Nothing police of a person's freedom of mo\e places and circumstances were not indicatcd the men intended to stay in mentor interference with person's pos- sufficiently suspicious to support a the room long enough for officel-s to sessoly interest in propelty. warmntless arrest under Article 14.03: obtain a warrnnt - thus there were 'TEST \Vould a reasonable person 'Hoag u. State, 728 S.\V.Zd 375 (Tex. sufficient facts to justify the arrest. believe his freedom was restricted so Crim. App. 1987)Cdefendant parked Taiplej, shoilld be contrasted with that he was not free to leave? ('I'his is vehicle and walked two blocks away Stmto~rv. State, 743 S.\V.Zd 233 ('Sex. an objective test.) into neighborhood; he approached Crim. App. 1988). There five Inen (Go to next question only if "yes.") house, knocked on door and looked reported to have cornrnitted a robbe~y Forrrth Qlrestioiz: aroond suspiciously; defendant then sometime after midnight. A short time If a search or seizul-e did occur, was it walked to side of house, back yard, and later, one of thc men was an-csted and reasonable? returned and walked back to his car; implicated the defendant, giving the TEST: Balance degree of invasion of the!-e were no signs of bul&ny at the officers the defendant's fil-st name, the person's privacy house -warl-antless arrest not justified general location of his house, and a VS. because no indication crime has been description of his car. Afew hours later, Benefits of search or seizul-eto society. committed). an officer saw the car parked outside of OR: If a seal-ch or seizure did occur, is 'Air~le~soilo. State, 612 S.\V.Zd 564 a I-esidence;he watched until the de- there an exception to the warrant re- (Tex. Crim. App. 1981) (not I-easonable fendant walked out of the honle and quirement which applies? for officer to believe that person seen got into the car two hours later. The walking toward rear of restaurant in Coiitiilried ollpnge 37 OCTOBER 1990 29 IOlCE FOR THE DEFENSE

State v. Mattox interest of Mobil). His asserted con- ContinuedJiompcige 10 duct, in short, constituted an induce- ment to Calclwell and the firm to breach the litigation and as being designed their fiduciary duties to one or mole solely to harass him and his family. clients, the resolution of whose unre- In June of 1985 a series of telephone lated legal matters was placed in con- calls ensued between Mattox and h~s flict by his action. Central to this theory aide Arthur Mitchell in Austin, and were the assumptions that the piomise Caldwell and McDade in Houston. not to execute a threat to withhold the Mattox in testinlony explained that he perfornlance ofa legal duty could have initially telephoned Caldwell-who had constituted a benefit to Caldwell within never played a role in the Mob11 litiga- the meaning of the statute, that the tion-because of his prior association nature of Caldwell's asserted fiducia~y with Caldwell du~ingthe campaign for relation to Mobil was the kind of rela- Attorney General. Mattox stated his tion protected from interference by need to express tosomeoneat Fulbright seetion 32.43, and that the nature of & Jawaski whom he directly knew Caldwell's relationto his pattnel McDade both hts annoyance with McDade's was sufficient for the purpose of invest- litigation conduct-which he viewed ing Caldwell with powers of control as unethical-and his concern that over the Mobil litigation. McDade's conduct would refleet unfa- This construction ofthe prosecution's vorably on Fulbright &Jaworski's entire theory, of course, is subject to some range of relations with the Attorney reasonable variation because the ambi- General's Office, including the bond guity in the indictment does not lend approval process. Caldwell recalled itself to unequivocal inte~pretation. the exchange quite differently. He Finally, it needs to be emphasized that testified that during the critical tele- this theory is di~ectlybased on the phone conversation of June 17, 1983: uncritical acceptance of the State's fac- "f next asked him how we could get tual allegations. Even if each of these our bonds approved. He stated that allegations wem indisputably true, the when McDade 'withdraws all this non- upshot of this article is that the indict- sense [the notice to depose Janice ment would have charged no ciime. Mattoxl and unethical crap then our This treatment is, of course, in contlast relationship could straighten out! . . . to the obvious obsetvation, previously He wanted lawyerlike actlon Until we stated, that the ju~y'sverdict speaks for got the matter straight, no bond ap- itself about the truth of these allega- provals would be had, including the tions. [Lower Colorado River Authontyl issue U. The Failure to Allege the Consid- [the largest and most politically sensi- eration Necessary for the Illicit tive then pending]."" Contract of Commercial Bribery Mattox in testmony insisted, how- The commercial b~ibetystatute re- ever, that he advised Caldwell only that quires that one cha~gedwith its conl- McDade motion to~ecusets believed to mission have offered "any benefit as the bond applications would be care- have been dismissed in July of 1983. At fully reviewed for error and finther consideration for. . . violating a duty to no time -.as there any evidence that a beneficiary."" The indictment tracks insi~edthatnothreat to block app~oval Mattox sougllt or received any personal of the bonds was ever nlade. the language of the statute by alleging pecuniary gain. that Mattox "offelIed1 a benefit to . . . Thus the State's case was piedicated These tnaterials-the indictment, the directly on this alleged threat by the Caldwell . . . as considexztion for [his] statute, and the summaiy of facts PIE- violation of his duty to a beneficiary." Attorney Geneial to hokl Fulbught & sented here-make it possible to state In the context of the indictment this Jawoiski'sclients'applicatio~~sforbond theprmec~~tion'stheoryincapsulefoim: app~ovalhostage until the fiinl's action benefit can be nothing other than Mattox's alleged conduct generated a Mattox's p~oniisenot to execute his in the Mobil case was ~evisedto re- potential intrafirnl conflict of inte~esr nounce the objectionable d~scovery th~eatto impede official action on the within Fulbright & Jaworski. This bond applications. The Penal Code tactic. The denouement of these conflict, if allowed to mature, would events-apt form the subsequent defines "benefit" as "anything reasona- have placed the film in violation of its bly ~ega~dedas economic gain or ad- c~iminallitigation based on thenl-was Fiduciaty duty--goveined by the ethi- antidinlatic: all the bond issues pend- vantage"" and this definition has been cal standaids of the legal p~ofession- consui~edbtoadly to include anything ing approval at the time of the putative to Mobil (by causing the firm to forego threat were subsequently approved upon which an economic value could a litigation tactic on Mobil's behalt) and be placed.= Whether this economic without any tangible or other cogni- possibly to the bond cknts as well (by zable loss to any of the issuers or to causing the film to sac~ificetheir inter- Fulbiight Pl Jawo~ski,and the renewed ests in speedy bond approval to the 30 OCTOBER 1990 VOICE FOR THE DEFENSE

Objections - tions recorded. testimony already given be stricken -at most the evidence shows that th~ Co~~ti~~riedJ;om pnge 13 from the record, the ju~ybeing in- witnesses PI-oduced had inconipletc structed not to consider it for any pur- knowledge of tlie purported transac pose) hecause the witness has violated ancient instr~niientwithin the nieaninj tions, and at least their testimony nius the court's order for separation of wit- of that tenn in law since: be supplementetl by testimony o nesses by: -there is no competent proof of its age someone knowing other vital facts tc -1-enmining in the courtrooni when X -there is no competent proof that il support admissibility of the documents and Y were testifying. comes from proper costody. -the person who furnished the data ha: -discussing with X the testimony that X -it shows on its face alterations anl not been produced, but only one whc gave in trial. blemishes. recorded matter that was purely hear. Double Questions (see Uncertainty) -it fails to appear on its face to he free say as to him. Hearsay from suspicion, and in fact the altera- -the person who furnished data fo~ The question invites the witness to tions upon it raise reasonable suspi- record has been produced, but lie dic state hearsay information rather than cions regarding its authenticity, if nor not ~uakethe record presented here restricting him to statenlent of facts conlpelling the corlclusion that it is not and whether these are records of data upon personal knondedge. authentic. he furnished does not appear by corn- The question does not limit the wit- Assuming Facts Not Proved petent evidence. ness to stating what he knows fro111 The question assumes facts not in -it is not shown that the entries in these personal observations, and it allows evidence, namely . . . books were ~nailein tlie regular course heal-say. Authentication (see also Books and of business. 'I'he part of the answer regarding Records) -the entries disclose, by the nature ol what X told him is lieal-say and not The inst~unienthas not been prop- the subject matter and content, that within any exception to the hearsay erly authenticated because of: they were nor made in the regula~ rule. \Ye move that it be stricken and want of competent proof of its execw course of business. that the jury he instructed not to con- tion -the entries, by their substance, show sider it fol- any purpose. -want of competent proof of its deliv- that they were made for use in litigation ery. and not in regular course of business as Immateriality (see also Irrelevance -want of competent proof as to the that term is used in the law of evidence. and Relevance Outweighed) identity of the person ndio PI-eparedit the recitations identified (by the offer, The matter is immaterial to any issue and the circ~uiistancesunder which it or by objection) are not the type that in this case. Both from the point of view was prepared. may be received from books and rec- of time and from the point of view of Best Evidence Rule ords but instead are: unnecessarily confusing the real issues The evidence offered is not the best hearsay. in the case with evidence on immaterial evidence: -opinions and conclusions. matters, it is improper to impose upon -the original writing has not been ac- Compromise tlie court and jury as well as parties hy counted for. The question is improper because it raising such collatel-al matters. -the books offered are not books of relates to a matter involving an offer to -Further, the subject is one of an inflam- original entry. buy peace and conipromise a disputed niatoly and prejudicialtiature, designed -the purported ;xplanation for failure claim. to invite the july to reach a verdict on topl-oduce the original writing is inade- Conclusions (see Opinions) the basis of sy~iipatliy of prejudice quate and fails to establish any compe- Criminal Offenses instead of unbiased findings on the tent excuse for nonpl-oduction of the The niatter is incompetent because facts. originial. the person accused was acquitted of -(see added statements under E1.E- -the prefe~redseconda~y evidence, a Iie charge. VANCE OURVEIGHED: sitnilar state- carbon copy niade at the time of the -itrelates not toa conviction, but merely ments might be used with an objection original writing, has not been accounted o a charge, n4iicli is n~hollydenied and of immateriality). for, and it is not shown that the oral lot proved. tnterpretationofanInstrument(see evidence offered is the best available the charge was only a misdemeanor Best Evidence Rule and Pam1 Evi- under the circ~nnstancces. tnd had no relation to veracity. dence Rule) -the original WI-iringspeaks for itself, the date of the conviction is roo re- Lrrelevance (see also Immateriality is the best evitlence, and cannot he note, being (specify number) yean and Relevance Outweighed) varied by attenlpted oral interpretation. ~eforethis date. The matter asked about is irrelevant Books and Records (see also Au- lead Man's Act :o any issue in the case. thentication and Best Evidence The question calls upon the witness Memoranda in Aid of Testimony Rules) o testify regalding an oral statement by The witness is testifying fi-on1 a The inst~umentsoffered are hearsay: he decedent, as to which he is disquali- nemorandum rather than from knowl- -neither the requirements of con~non ied to testify under the Dead 41an'sAct. dge and memoly, the meuiorandu~n law nor those of statutes for admissibil- )isquaMcation by Violation of Or- xing one that is not properly usable for ity of records have heen met. ler for Separation of Witnesses his putpose. (A tilotion to strike and a -no witness has testified to pel-sonal We move that the witness be dis- equest for inst~mctionsto disregard knowledge of the purported transac- palified from testifying (and that his Inswers already given may be added). OCTOBER 1990 VOICE FOR THE DEFENSE

~p

Objections -misleading the july State v. Mattox Coirtinoedftompnge 31 -undue delay and waste of time Conti~lrrerlfrormpage 30 -needless presentation of cumulativt evidence Nonresponsive Answers concept of "benefit" could apply to the We move that the answer be strickel Repairs and Other Remedial Meas. defendant's offer npt to carry out his ures and that the jury be instructed not tl threat is problematic; arguably it could The matter asked about relates tc consider it for any purpose. It is nc apply because there would have been subsequent repairs of an instrumnenml- responsive to the question. (Any othe economic value to Fulbright &Jaworski ground of objection might he added- ity allegedly involved in the incident on in not having it carried out. This issue, which this suit is based, and is therefore such as, that the answer is a statemen however, need not be resolved, be- inacln~issible. of opinion, or hearsay). cause the statuto~ycontext in which Opinions and Conclusions Tlie matter asked about relaies to this putative "benefit" was offel-ed re- remedial measures instituted after the Tile question calls for (or the answe quired it be offered "as consideration." is) an opinion and conclusion: incident on which the suit is based and This requirement totally vitiates the is therefore inadmissible. -the witness has not been shown to lx capacity of the defendant 's threat or an expert. Repetition promise to satisfy the language of the -it is upon a matter that is not a prope The question is repetitious. It has statute-regardless of its economic subject of opinion testimony, even i been asked and answered (several value. expert qualifications are shown. times) and we object to fu~therrepeti- In McCaNrrn~u. State 2l the Texas tion (in the intel-est of time). Parol Evidence Rule Cou~tof Criminal Appeals held that the Reputation The evidence offered is incompeten expression "benefit as consideration under the parol evidence mle: The matter is incompetent because for" in the general bribe~ystatute, sec- -it relates to negotiations before the -it doesnot concern reputation for (lack tion 36.02 of the Penal Code," must be veracity. integration of the agreement in a writ- 00 construed to require as an element of ten contract. -there is no competent evidence that that crime "a bilateral arl-angement-in the witness knows the reputation of X -it is an effolt to valy the terms of ar effect an illegal contract to exchange a for t~uthand veracity in the connnunity unambiguous writing by parol evidence. benefit as consideration for the per- -the instmment speaks for itself and in which X resides. formance of [the requested action]."" -the witness offers to testify only that he cannot be varied by oral interpretation. The court's analysis made it plain that -though the evidence relates to alleged would not believe X, and not that X has consideration must be present in the a reputation for lack of veracity. negotiations subsequent to the written illicit contl-act of l~ribe~yby analogy to Separation of Witnesses (see Dis- agl-cement, there is no evidence of the law of contracts. The expression independent consideration to support qualification) which it construed-"any benefit as Statuate of Frauds a modification of the written agree- consideration for"-is identical with ment. The question calls for parol evidence the crucial expl-ession in section 32.43.11 of an alleged agl-eementthat must be in Personal Knowledge (see Hearsay) Because sections 32.43 and 36.02 may writing under the Statute of Frauds, and Pleadings Ie construed in materia? the Section- of that statue in pa~ticular. pnri The evidence is inadmissible for want xinciples governing coinmercial brib- Uncertainty of any suppo~tin the pleadings, which 21y may also be analogized to contract The question is ambiguous and un- do not raise any issue as to which the aw antl thus to the contractual concept evidence offered is relevant and mate- certain in its meaning. We ask that it be 3f consideration, Seen in this light, the clarified to avoid n~isunderstanding. rial. xosecution's reliance on a promise to This is a double (or n~ultiplicitous) Prejudice (see Immateriality and orego a theat to perform an official question, containing nvo (or more) Relevance Outweighed) luty must fail, because it is an elemen- distinct parts that should be separated Privilege a1 principle of contract law that so the witness, and the court and jury, The question invades the field of "[nlo sufficient consideration is confidential comnlunications between can be certain of counsel's meaning. leemed to bc present where there is an The question is confusing; there is -husband antl wife greenlent to perform something that -client and attorney doubt as to what is being asked and he promisor is already obligated to danger if not probability of niisunder- -patient and doctor ~erfor~n,either by /mu, or by the provi- standing. 'She question is one that the witness ;ions of a valid contract."^ The question is too indefinite and cannot be compelled to answer be- Nntncrous statutes itnpose a duty on uncertain to indicate clearly what is cause of the privilege against self-in- he Attorney General to I-eview bond crimination and that privilege is hereby being asked and to insul-e that it is ~ndother poblic securities issues pro- interpreted in the same way by the invoked. josed by governmental entities.); If the zourt and jury aswell as the witness and Relevance Outweighed (see also ~ondsand othcr securities described in zounsel. Immateriality and Irrelevance) he indictment were in proper legal The answer indicates that the witness Even if this evidence be considered otm, Mattox as Attorney General had a I-elevant, its probative value is out- s uncertain. Since he does not know, ?gal duty to approve the bonds, giving ,ve move that his answer be stricken weighed by the danger of ise to a corresponding legal right in -unfair prejudice ~ndthat the jmy be instructed not to -confusion of the issues :onsider it for any purpose..

OCTOBER 1990 VOICE FOR THE DEFENSE

ciples of contract law, applicable to the Ann an. 2708(1) (Vernon 1%) (permiTing an crime of blbery by judicial analogy exception to an indiclment when "~tdoes not appear therefrom that an offense against the law established in McCalIrtnz, the was conunztted by the defendant "1 Caldwell, acting as attorney for thc prosecution's theory failed to allege a I I. See, e g., E\rlxrfe IV~nlon,549 S.W.2d 751, issuers, to have them approved." This crime as set forth in the Penal Code and 752 (Tex. Crim App. 1977) (collectmg cases); pre-existing legal relation between the thus violated the plinciple of legality. POST u State, 545 S.W 2d 162 (Tex. Crim App. But there wele other violations of the 1977). Ev@rfe Cannon, 546 S.W.2d 21% (Tex. defendant and Caldwell precluded as a Cnm. Am 1976). See eenerallv. Dh 7kw matter of law the possibility of any offel principle. ~hai~o;$l~,zsm~meizt~ru~~eceai&~elo~metza of "consideration"in the context of the TBis article will be coiztiizt6ed iiizfittcte anritheCo111irirring~VeedJorRef~i~n~35 Baylor L prosecution's allegation The contract issues of Voice. Rev. 689, 727 58 (1983). principle that no consideration can One elenlent of the fund?mnmtai&fect doctrine POotnoteS of these cases, which dld nm requtie the defen- consist of a public official's promise to dant to raise thedefect at or kf& trral, see also perfortn duties already legally required 1. Texas Penal Cork Ann 132.43 (Vernon 1974) Am TwrlColp. 0 Stale, 508 S.W.Zd 598,603 (Tex of himf,aprinciple firmly reflected in lhroughout this artlcle it is rcfemd lo in phms Crinl App. 19741, appeal dlsm'd. 419 U.S. 1038 Texas law-thus directly conttadicts simply as *se&on 32.43." An amendment fo this (19751, was ovcrmled by the Sq-Ninth Legisla- sealon became effectwe an September 1, 1983, ture. See Senate Bd NO. 169, 69th Legislature, and destroys the essential averment of and thus did not apply to this cause. See Tex Acts 19% ch 577.5 1 kn~endmgam. 1 14.28.30 considelation in the indictment. Penal Code Ann $32.42 (Vernon 1985 Supp.). and 28.10 of the Meof Crirmnal Procedure). There is another reason, based on Unlessotl~em~iseindrated,a!lstatnta, cases and I2 CJU'illla~%-u State, 12 Tex Cm 395, 4W conttact law, why the indictment failed othcr laws cited were those m effect at the time (1882) (the requrrement that an indictment state of Mattox's indictment and trial %heessential elements which eonstitute the of- toallegevalidly therequiredelemcnt of 2 1 he case wasstyled ~eSeS(nl~ofTcxasv.Ja~f~~~fense charged is a fundamental requirement of consideration "used to emphasize the Natlav, No 73,737(147111 JudrciaI District, Travm the Texas Constitution). See also Dix, Texas bargaining aspect of blibery."" In the County, Texas) Chatgli~gIns1,urnent Laru, supre note 10, 35 context of contract law, duress° has been described as "a thteat to do I'. . . thep~yfsecutorinlasset-tion of a tht-eet destroyedanygl-ozmd that sonlethitlg which the party threatening the consideration element of conznztw-cfalbribery was alleged in the has no right todo. . . [Wlhe~ethe party making such demand . . . induces a Indictment." compliance . . against the will of [the - . 3. WntIngaschotady article primarilyonrlrefac(s Baylor L. Rev at 729 (requirement was regarded threatened party1 through fear of injury ofthe case as adduced in the evidence wautd be at time of as nineteenth-century origin acbased to his business or property interests, problematic in several respects. I*M example, on "fundamental justice'). such threats amount to duress."+l significant portions ofthe statement of facts (trial 13 See, e.g., Pmplcu.JacoDr, 330 N.Y 315, 130 Mattox's th~eat"to delay. . . and deny mnscripttlndvdmg the ckfendalaot3 cmcal N E 2d636,637(19551, Scb1~u.KIrby.191N.Y.S.2d approval of certain bonds" was cer- testmnony on both direct and moss examha- 695,701 (Sup. Ct. 1959) (both conslmmg fomter t~on-have never been transcnbed from the court New York commerc~albnbery stmte, 5439 of the tainly, ifthe bondswereinproperfo~m, repmeis notes. The writer of necessity must Penal law, now recod~fiedin pan as N.Y. Penal a threat to takeactionbeyond his lawful advelr to the facts of the e.1~to explain the legal Law 55180.00~03,- OS.08 (hlcKinney Supp rights; and the allegation directly im- theor~esinvolved, but because they are not the 1284-85)) See also Note, CornmarinlBtYbL?]~ plied, while not expressly so stating, an facusof thisarticle, hewill rely onhis knowledge 7NeA'Ecdjoor.LegWnnoa hzdfinnesola, 46hhn. I oftl~ecarein presenting than, ratl~crthanrelymg Rev. 599, 599-6W (1952) (commernal bribery altelnpt to induce involuntary assent in on an inconipiete record. normally occurs when -an agent receives money Caldwell through fear of injluy to his 4 H.Packer, ~heLirnikoJiheC~Y~~~~nalSnrrct~o~ror other connssions from the briber Jnrrturn for firm and its clients. 72 (1968) See also J. Hall, GenemfP~Y~~ciplesoJ the agent'scNort tofurthcrthe brther's imeresffiin The use of duress to reach an agree- C~ffninnilnru28C2ded. IW);J Rawls, A ~YXOFJ business dcalingshemcen the bnber and princi- ment or conttact ~rndetsthat contract oflustrce538 at238 (1971).G. WiUianls, Crimirzal pal?; Annot, Validityand Cow1,ucfion of Slat- Lmu. mi? Gei~e~nlI'atl55 184-88 (1961). rrtes P~tnrshlngConmemid Brfkty, 1 A L R 3d void or voidable.* Moreover, the use of 5. H Packer, supm note 4, at 73 1350. 1359 (1965) (offense occun when there is duress "taint[sl" what would otl~mise 6. H. Packer, supra note 4 at 72, 80,and 93. payment or &cr of payment to an agent or be valid conside~ation:~Indeed, duress Though the Texas Penal Code dws not require employee with the intent that 11s relation to the and consideration are entirely separate hestrrct constmction ofpenalstatutes, seeTexns prinnpal or employee be xntluenced thereby). Penal Code Ann 51.05(a) (Vernon 19741, the 14. PraairrCommentary,TexasP&aI Code Ann concept^,'^ and thus a threat cannot be prrnclple of legahty still forbids *%e analogd 532 43 (Vernon 1974) a valid substitute for consideration. zxtension ofpenal statutes " G. Wdliams, supm 15. Matmx did perfect an mnterlocutary appeal in Finally, the use of' dutess has been vote 4,5188 at 5% See ahH. Han & A Sacks, his case, Erpaiie nfmoos 683 s.w.zd 93 (Tex held to be in the nahlre of e~toiTion?~In TY~elrynlPmcewmsicPioblerns In ibe~Wclkin~ App.-Austin 19W, pet rePd, 685 SWV.2d 53 1ndAppIIcaIion of Law 511 (Tent ed 1958). UizlteCI SIares v. Addonizio, "the wurt (Tex. Cnm App. l985), hut except for a brlef 7. If Packer, supra note 4, at 80,85. discumon of the appellant's voi+for-vagueness of appeals held that "while the essence 9 Id at 88 Professor Packer agrees further that grounds of enor, the court of appeals did not of hibery is voluntariness, the essence t is n leal important purpose of the pnnciplc to reach the merits It expressly declined m rule on of extortion is duress,"* thus establish- -onmil the dtscretion of jndges, who are amply the nieritsaf the claim that the ~ndlcunentfarled ing that b~iberyand extol tion are totally estrained by the fact that they must psttfy their to allege thenecessary elements ofthe crime, the dispa~ateandnwtuallyexclusive c~kes. leckions through "a process of reasoned wry imte in this alncte. ,laboration " Id It Is arguable a.hcriier thts rhe author is unaware (as of 1985) of any othcr Again the upshot is that the prosecuto- easoning properly applies lo Texas trial judges, lexns mes wh~chsubstantisllymh thenlents rial assertion of a threat destroyed any ~~hoaregenerallynot required-nd by tradition an a section 32 43matter Butc$MatriottBros u. gound that the consideration element do not-isme opinions explainmng and jusufymg Gage, 704 I:. Supp 731,737-38 (N D. Tex. 1%) of thex din@ (predtcate for 18 U S.C. 5 I964 (c)) comtnercial bribery was alleged in 9. Id. at 90. the indictment. 10 Tex. Code Crirn. Proc. Arm art 21 03 On the basis of commonplace pin- (Vernon 1%) See also Tex. Code Crim, Prac OCTOBER 1990 VOICE FOR THE DEFENSE

Editors Column If "yes," please explain briefly. based upon the publicity? If "yes," please 18. You have been advised that the jury mill explain briefly. Contimir?rif,on~pnge4 be sequestered once trial begins, and that 24. Specifically, have you formed any the trial is expected to take approximately opinions whatsoever, based on information one month. Is thereany reason that has no1 from any source, of Mr. Barry's guilt or UNITED STATES ) previously been mled on by the Court whj~ innocence of anything? If "yes," please OF AMERICA 1 Criminal Case you would suffer cxceptional personal explain briefly. v. ) No. 90-0068 hardship if selected to sit as a juror in this 25. The jury will be instn~ctedthat the MARION S. i (TI'J) case? If "yes," please explain briefly. defendant is presumed to be innocent RAKRY, JR. ) throughout the trial, and thnt he cannot he &&jJ found guilty of any offense until the govern- 19. Do you, to your knowledge, have any ment has proven each element of that or fatxdy connectionof any sbi offense beyonda reasonable doubt. Would with t11edefendantMarionS. Rarry,.rr.? \Vith you find it difficult for any reason to follow the United States Attorney for the District ol that instruction? If "yes," please explain Columbia, Jay 1'. Stephens, or Iris staff, briefly. including Assistant United States Attorneys 26, The jury will be instn~crednot to read, Juror No.- Judith Hetchin and Riclrard Hobens? With watch, orlisten to any news accounts of this the defense attorneys H. Kenneth Mundy, trial whatsoever until it is over, and not to 1. Pull Name: Reginald I. Holt, Robert \V. Mance, or Karen talk to anyone about the case, not even to 2. Place and date of birth: McDonald? If anv answer is "ves.", .. olease one another, until it retires to deliherate 3. Citizenship: explain briefly. upon its verdict. Would you find it difficult

4. Present Addresc:~~~~ 20. The followinc!-. is a oartial list of .neoole . to follow such an instnlction for any rea- 5. Do you have any difficulty in reading, who maybe nlledas witnesses in this case. sons? If "yes," please explain briefly. speaking, or understanding the written or Do you, to your knowledge, have any 27. \What TVorradio news progranis do yon spoken English language? If "yes," please personal, family, or business connection of watch or listen Lo fairly regdarly? explain briefly. any sort with any of them? If "yes," please 28. What newspapers or magazines do you 6. Do you have any significant problems circle the numbers of each of those with read fairly regularly? with your Ilearingoryo~rreyesigl~r?If "yes," \vhom you may have such a connection. please explain briefly. 7. How long- havevou lived at vour, .oresent 25. Dad hleyrrson 29. Did voo vote in tl~enationalelections in address? 26. AnhnrJ. hlitchcll 1988? lkM? 1980? 8. How lona have vou lived in the District 27. Ha~m 30. Did you vote in the local elections in of ~olunlbia? hlohammadi 1986' 1982? 1978? 9. Are you a reeistered., voter? If so. where 4. Maria Barha 28. Lloyd Moore 31. Other than as a voteq are you active are you registered? How are you registered? 5. Albert Aenjanlin 29. blmy Mwrr politically? If "ges," please explain briefly. (ie. Democrat.. Rcnublican.. Inde~endent. 5. Orlando Uerrios 30. Menine Aloore 32. Have you been active in the campaign or other). j. Johnnnn Coleman 31. Rnshrrda hloorc of any candidate($ for elective office in the 10. Are you presently married? If "yes," 3. Doris Crenslv.liv 32. Sherlc hloore DistrictofColn~~lbia?If")~cs,"pleaseexplain what is the fdl name of your spouse? How 9. Carthur Dnke 33. John Olsen briefly. long llave you been married? 10. I'retl Gaskins 34, Jamcs Pawlik 33. Have you ever held elected or ap- 11. If your spouse is employed or has been 11. hlarcia Griffin 35. Lydia Pearsun pointed ofice in the District of Columhia employed, who is (or was) l~isor her 12. Ronald Harvey 36. Edward l'riclrartl government? If"yes,"plenseexplainbrieRy. employer? 13. Dixie Hedrington 37. hlanhall Reel 34. llave you ever held elected or ap- 12. If previously married, please state the 14. Tivia iloppenstein 3.Kol~in Ridgcway pointed office in the federal government or full names and occupations of all former 15. ClroleJackson 39. Darrel Sahlx any other state or local government? If spouses. 16. Wanda King 40. Sokhjit Singh "yes," please explain briefly. 13. If you have children, please state their 17. Charles i.ewis 41. Bcttye Smith 35. Have you ever been employed by the full names and ages, and occupations (if 18. Thomas Lynch 42. Theresa District of Columbia government? If "yes: working). Sourherland please esplain briefly (including each posi- 14. Ifyou a~rpresentlyemployed, hywliom 19. Roger hlanr 43. Wanda Stanabury tion you have held, the inclusive dates of and mhele are you e~nployed?What is (or !O Charles Mson 44. J;mes Snys ~0111. employmenr in that position, and the was) your principal occupation? Tihat is (or !I. Zcnna blathis 45. Frank Strrlr dcpartment(s) or agency(ies) for which you was) thenature of yourwork? List all places !2. Linda hlaynard 46. Jonetta Vincenr have worked.) at which you have worked full-time for as !3. Rose RI. M&nhy 47. Clifton West long as three consecutive years (including !4,James hIc\Villiams 48. Peter - military service). If you are not currently Wubknhont government in the past four years? If "yes," working, are you teniporarily unemployed? please explain briefly. retired? other? !1. Do you have any first-hand knowledge 37. Have you received any benefits or 15. How manv', vears of formal education rf the facts of this case? If "yes," please services not given to the vublic-at-lawe have you had? \Vliat is the name of the last xplain briefly. full-time school vou attended? \Vhen did !2. As you may be aware, this case, and . . yo11 last attend school? eltail1 events leading up toit, lime received briefly. 16. Do you have any cluonic or major onsidec~t>lepublicit).,bothheforeandafter 38. Have you ever contributed money or health problnn(s)7 If "yes," please explain ndictment was filed. Are you aware of the briefls x~hlicity? If "yes," please describe hrietly 17. Does any meniber of your household \hat you remember about it. l~avean)~cI~ro~~icor~najorhealtl~problemW? :3. Have you fonned any personal opinions Co1?ti1~rredtopnge36

OCTOBER 1990 VOICE FOR THE DEFENSE

Editors Column The Opinions Of The D.R.E. The equitable principle of "CLEAN The D.R.E. will attempt to give two HANDS" applies four-square in this Contic~~~ed~ompuge34 (2) opinions. The first will be that the D.U.I.D. scenario. suspect is intoxicated at the time of the We also encounter the idea of HOW property to any candidateW for elective examination. FAR CAN THE POLICE GO in detecting officein the District of Coluinbia? If "yes," The second will be the class of drug violations of law. Where is the stop- please explain hrrefly (including the identity(ies) of the candidateCs) and the that the suspect has been using. This ping point? When do they need a election yeads). opinion will also be a direction to the search warrant? Where is the piobahle 39 Have you, or any member of your toxicologist as to which drug to test for cause and what is it? family, contributed to any fund for the presence in any specimen analyzed. Conclusion benefit of Marion Rarly or his family since The Second Refusal This new area of D.U.I.D. has been Janualy 18, 1W0? If "yes," please explain There are really two (2) posGble opened up for the Defense Bar in bnefly. refusals in this area by the suspect. Texas. It goes beyond D.W.1 as we 40. Have you, or any member of your First there is a refusal to participate in have formerly known it. New expertise family, attended any fnndnisers, rallies, the paramedical testing process. Sec- by defense counsel will be ~equi~edin receptions, or other functions in suppoa or ond there is a refusal to give a specimen the presentation of a aedible defense in honor of Marion Barry since January 18, of blwd/uiine. Remember that our for persons charged with D.U.I.D.. lm? If "yes," please explain briefly. 41 Have you had any major disputes or suspect has already given a breath The State is en~ployingthese new l~tigationwith the United Statesgovernment sample. procedures in an attempt to "COR- or District of Columbia government in the A question arises as to whether or not ROBORATE" the ar~estingofficer's past four years? If "yes," please explaln the police must give a second warning opinion of intoxication, which was briefly. to the suspect. shown to be in error by their own 42 Other than what you have stated in Further, there is the question of police machine in the first place. answer to a previous question, or the rela- administrative sanctions 0.e. atteinpted The police with huge budgets are t~onshipswe all have in coinmon with the drivers license revocation) in the case attetnptmg to acquire scientific-sound- government, do you, or does any relative or of eitlie~of these second reh~sals. ing and scientific appealing evidence close friend, have any special connection with the District of Colurnbia government? New Items Of EvidenceTo Consider to support their allegations of wrong If 'yes," please explain bnefly. 1. The Dn~gEvaluation Fornl doing. However, such evidence has 2 Roadside video-tapes little or noscientific basisandis certainly PartIY 3. Second refusal evidence norgazerally accepted in the scientific 43. Have you, any niember of your hnnie- 4. New warning foi ms comniunity to which it belongs. (and diate familv.,. or a close nersonal friend ever Defending the D.U.I.D. Case that conimunity is not the police ranks) beeneniployed by any local, stateor federal MOTIONSTO SUPPRESSNIIIassume It is interesting that the RIGHT-TO law enforceinent agency? If "yes," please a lager lole. The possible items to be COUNSEL, denled in D.W.1 cases prior explain briefly. suppressed are: opinions of the D.R.E.; to breath testing, may now have arisen 44 Have you, or has any member of your test ~esultsof pala-medical tests; test from the judicial grave m D.U.I.D. famdy, ever conrributed to an organization sponsored by, or for the benefit of, law results of specimens of bloodhrine, cases.. opinions by the toxicologist; second refusal evrdence and Probable Cause to arrest, are just a fe~. D.U.I.D. Defense Technics: The TIME OF DRIVING is still the critical pomt at which intoxication must C0llfll7~~/fl~lt~~g8 be shown to have occurred. Rules against EXPLORATORY SEARCHES (fishing expeditions) must Examination, vital sqnreadings, muscle be called to the attention of the Court. tone examination, nasal examination (Stanford u. Te-ws, 85 Sup.Ct. 506). F.S.T.s and interrogation of the suspect. LACK OF KNOWLEDGE of drug ef- The testing process takes about 45 fects, LACK OF WARNINGS by Physi- minutes and is conducted by the D.R.E. cians AND LACK OF WARNINGS ON who is a nonmedical pelson (i.e. a PRESCRIPTION LABELS are viable cop). defenses. lntent or OMENS REA" in a Obsewations and testing may or may litn~tedform may be required proof by not he video-taped but the D.R E. will the state in a D.U.I.D. prasecntion. record his findings onthe DRUG EVALU- ATION FORM. Upon completion, the D.R.E. will then make a guess as to what class of dlugs the suspect is or has been using. There are 7 classes to choose fmm. Finally the suspect vill be asked for a bloodhine sample to be analyzed later by the toxicologist. OCTOBER 1990 VOICE FOR THE DEFENSE

Editors Column alize they are sometimes necessary. Please I declare underpenaltyof perjury that the explain briefly, if yon wish foregoing answers to eachquestion are true 57. Do you hold any personal opinions and correct, to the best of my knowledge about persons engaged in the fields of law and belief. or law enfoxenlent Ce.g. the Metropolltan Police Department, the FBI, or the Drug enforcement ohs(e g., tfle Meuopolitan EnforcementAdministration)~If"yes,"plcase Signature Police Boys and Girls Club, the Praternill explain briefly. Onler of Pnlice, etc.)? If "yes," please 58. Do you have any personal opinions Uare explum briefly. about polit~c~ansor high government off- ****. 45. Have you or any member of your cials in general? If "yes," please explain Judge Morris L. Overstreet immediate family ever studied law, prac- briefly. Challenges Judge Lowis E. Sturns ticed law, or been employed by a lawyer or 59. Do you hold any opinions about the for Texas Cou& of Crhhal law fam? If "yes," please explain briefly. District of Colmnbiak form of ~overnment? 46. Have you ever served on a grand jury? Appeals Position If "yes: please explain brlefly In our Summer 1990 mxe this hisl- 47. Have you ever served on a rnal jury? If race or'politics any pan in the utnn announced the appointment of "yes,"went the m&s) criminal?civil? other? charges against Mr. Bt~rry? If "yes," please Judge Sturns to the Texas Court of Please state where and when you have so explain briefly. Criminal Appeals and alsolan an exten- served. 61. Have you ever believed yourself to be sive biographical article on him. Be- a victun of prejudice of any sort? If XJ, cause of several unavoidable delays, PLV explain bnekly. the announcement, previously aimed 48. Do you attend cln~rchor synagogue on 62. Have yart, or has any relative or close for a much earlier issue, was included a regular basis? If "yes," please explam friend,everbeenavictimofacrime?Charged in the Summer issue. briefly. with a crime7 A witness to a crime? If my 49. Have you, or has any relative or close answer is "yes," please explain briefly. Several members asked me whether, friend, ever had a drinking prablem or 63. Ikwe )&, Ins any rcli~tivcur dosr in view of the impending November suffered fmm alcoholism? If "yes," please friend, ever kc^^ falsely i~cwsedof ;I crimc!? elections, any mention would be made explain briefly. ~f "yes," please explain briefly. ofJudge Ovemreet, who is challenging 50. Do you hold any penonal opinions 64. Have you, or has any relative or close Judge Sturns. The point is well taken. about aIcohol~sm~If "yes: please explain friend, ever part~cipatedin a criminal trial in Fair is fair. What I should have done briefly. ariy otliw capacity (e.g , palty, lawyer, wit- was contact eve~ysingle person tun- 51. Have you, or has any relative or close ness, juror, investigator, etc.]? If "yes," ning for the Texas Court of Criminal friend, ever been addicted to any drug? If please explain briefly. Appeals and nln theirphotographs and "yes,"please explain briefly. 52. Have you had any other personal or Bccm biographical resumes. However, when family experience with substance abvse? if 64 If, dunng the course of jury delibera- all of this cxtne up, there was not tune "ves." olcase emlain brieflv. tions, a fellow juror should suggest thatyou to include it in this issue. Politics has d~sremrdthe law or the ev~dence,and neverbeenmy strong suit, but I cansee decid;: the case on other grounds, would where supporters of these two judges le~lized?if "yes," please ex&in briefly. you, as a juror, be able to reject tbe sugges- as well as suppolters of other candi- 54. &you have any opinion asrowherher tion and abfde by your oath to the Court to dares would be very sensitive to this a person is ever justified tnlyingafier having decide [he case solely on the evidence and kind of magazine exposure. Suffice it If "yes," taken an oath ro tell the tmth? the law as the Court has instructed you, to say that the Voice fw the Deferse please explain briefly. without regard fo sympathy, bins or preju- magazine does not and cannot endo~se 55. Do you hold any personal opinions dice? If "no," please explain bnefly. any candidate for political office for about the use of unciekover, or "sting," 66. Do you hold any religions or philo- operations by law enforcement agencies, in sophical beliefs that forbid your ntndenng obvious reasons. which, for example, friends or assuciates of judgment upon the innocence or gmlt of Judge Morris Overstreet was born a subject cooperate in monitoring the another person? If "yes," please explain and raised in Amarillo, Taras. He subject's;tctiVities? If yes," pleasecheckthe briefly. graduated from Angelo State University response below which most acumtely re- 67. Woulda deEendant'srelig~ouskliefs,or and Texas Southe~nUniveisity School flem your opinion, lamopposed to suSh the fact that a defendant had asked for of Law and was licensed to practice in n~ethods.-1 favortheuseof suchmethods. Divine forgiveness, affect your jtldgment 1975. He sewed as anAssistant District I have 6orne reservations about the use of upon his innocence or guilt of a criminal Atto~neyfor the 47th Judicial District %h methods, but realize they are some- cha~gein any my? If "yes," please explain Attorney's ofice fronl 1975 through trmes necessary. Please explain briefly, if briefly. you wish. 68. Is there anyfhing, or any reason at all, 1980. Judge Overstreet ms in the 56. Do you have an opinion about the however personal or private, that makes private practke of lawkom 1981thnu* fairness of law enforcement agencies using you Eeel you should not serve as a juror on 1986 and practiced in the area of Cdmi- concealed video and audio recording de- this case, or could not be a fair and impartial nal, Family, Personal Injury, and vices during the course of an undercover juror? If "yes," please explaiii briefly. Worker's Compensation. In 1986, he invest~gation? If 'yes," please check the 69. Doany ofrhe foregorngquestionstouch was elected Presiding Judge of the response below which most accurately re- upon matters that you regard as deeply Parker County Coutt of Law #I, a flects your opinion -1 am opposed to the personal and would like to keep private, Statntoiy Court of General ~urisdiction. use of concealed recording devices. -1 that is, not =leased to the press or public He has served,as Plesiding Judge since favor the use of concealed recordinx de- gene~dly? If "yes," please identrfy those January 1, 1987, through the present questions bv aucstion number alone. contimied o??pa@39 OCTOBER 1990 - -

VOICE FOR THE DEFENSE

Search and Seizure weapons) cise and disjointed to satisfy Gatestest); *United States u. Johns, 469 US. 478 Wureu.Sfate,724 S.W.2d 38CTex. Crim. Catitintredfrompge 29 (1985) (Three day delayed search ol App. 1986) (Gates test not satisfied truck in custody) because no underlying information Appendix B *Arka~~sasu. Sa~rders, 442 US. 753 given; affidavit contains allegation that Representative Court of Criminal (1979) (Marijuana in suitcase in trunkol witness had personal knowledge de- Appeals' Decisions Finding No car; invalid auto search -officers tried fendant threatened to kill witness in Reasonable Expectation of Privacy to "bootstrap" probable cause they had pending criminal case). The key focus Voelkelu.State, 717 S.W.2d 314 (Tex to search suitcase by waiting untilit was is on the reasonableness of the Crim. App. 1986) - no reasonable placed in trunk and claiming 'kutomo- magistrate's decision in light of all the expectation of privacy in hotel room bile exception") Co~z~.ust,Rm. facts before him. when officers are summoned a1 *US. u. Chadwick, 433 US. 1 (1977) As seen in UnireciStates u. Leon, 468 manager's request to evict defendant (Footlocker in trunk of car; invalid auto from 1:oom. S.W.2d 897 (1984) (modifying the ex- search - officers had probable cause clusionary ruleandcreating "good faith" Af~tideru.State, 707 S.W.2d 908 (Tex. to search footlocker but waited until it exception], officers relying on a war- Crim. Am. 1986) - no reasonable L. was placed in trunk; then t~iedto claim rant must be acting in obiective good expectation of privacy in photographr "auto exception") Colltrast, Ross. faith. Reviewing courts should not of the defendant, showing his wounds, *Preston u. U.S., 376 US. 364 (1964) conduct a de novo review of the issu- taken at the jail after his arrest (Search not valid as incident to arrest as ingmagistrate's detennination that prob- A4an1yu.State, 621 S.W.2d 619 (Tex. not contemnporaneous) able cause was shown. Afassach~rsetts Crim. App. 1981) - no reasonable 'Cooper u. Caltfor~ria,386 US. 58 u Upto~z,466 US. 727 (1984). Mow expectation of privacy in public wafting (1967) (Search of car at police st~t', ton over, inn~akingaprobable cause deter- room at doctor's office. vaid because car held for forfeiture) mination, the magistrate is limited to Gellett u. State, 588 S.\V,2d 361 (Tex. 'Duke u. TaylorI~nple?ize~ztMfg. Co., the four corners of the affidavit. miller Crim. App. 1979) - no reasonable 391 U.S. 216 (1968) (Not valid as inci- u. State, 736 S.W.2d 643 (Tex. Cri~n. expectation of privacy in Foley's dress dent to alrest because not at same time ing loom where posted signs indicated App. 1987). and place) However, if there are false statements dressing room is under su~veillance. *Tamu. UWtee423 US. 67 (1975) (If or misrepresentations made in the affi- Green u. State, 566 S.\V.Zd 578 (Tex p~ohablecause plus exigent circum- davit, different rules apply. A defen- CII~.App. 1978) - no leasonable stances exist, search of vehicle at later dant may go beyond the four corners of expectation of privacy in peep show time and place valid) the suppo~tingaffidavit to show that a bo6th when curtain covering exit to the "Cady u. Domhro~uski,413 US. 433 false statenlent was knowingly or inten- booth was left partially open. Contrast, (1973) (Search of car to protect public tionally made, or was made with reck- Lied~t~mu. State, 652 S.\V.Zd 942 Vex. against persons who might obtain gun less disrega~dof the truth. Once a Cnm. App. 1983) - finding legirinlate of driver valid) defendant makes a preliminary show- expectation in "glory hole" booth of ing that such a statenlent was made, he adult theater. Appendix D is entitled to a hearing. Fratzks u. Search Warrants Dehunre, 438 U.S. 154 (1987). At that Appendix C Both the fede~aland state systems "Automobile Exception" healing the defendant must prove by a apply a totality of the cilcu~nstancestest preponderance of the evidence that the Representative Supreme Court in determining whether a warrant is statement is false. Even then he is not Decisions: supported by an affidav~tthat contains Warrantless Searches of Vehicles entitled to rel~cfunless when the false p~obablecause. IIlinors u. Gates, 462 statement is excised from the affidavit, and Effects US 213 (1983); Botuo. u. Stale, 769 what ienlains is insufficient to show 'Calt@~xiau. Carizej~,471 US. 386 S.W.2d 887 (Tex. Crim. App. 1989). ptobable cause. Franks, supra; Duncj~ (1985) (Motor home) ' The former "rigid" two-pronged tests u. Sf~~te,728 S.\V.Zd 772 Vex. C~irn. 'U.S. u. Ross, 456 U.S. 798 (Heroin in of Agtrilar-@iizeNiare no longer st1 ictly paper bag in trunk of car) App 1987). Note that a tnissatement in enforced. Aglrilnr u. Texas, 378 U.S. an affidavit that is the result of negli- *Arezu York u. Belto~i,453 US. 454 108 (1964); SpirteNiu. ~z~terlstntes,393 gence or inadvertence (lather than one (19811 (Interior of automobile follow- U.S. 410 (1964). That does not mean, made intentionally 01 wlth reckless ing lawful custodial arlest of driver) however, that these tests are dead. disregard of the ttuth) will tzot invali- 'Carroll u. US., 267 U.S. 132 (1925) Gatesdid not do away with the two date the warrant. Archer u. State, 607 ('Ike original "automobile exception" requirements used in the Agrritar-Sp- S.W.2d 539 (Tex. Cr~nl.App. 1980). case) nelli test (reliab~lityof informant and 'Chanrhws u. Mczro~te~!399 US. 42 basis of knowledge). Instead it held Appendix E (1970) (Carroll doctrine extended to that the prongs need not be applied Reference Material subsequent search at police station) strictly and the entire affidavit should \V. La Fave, "Search and Seizure" (1988) 'CarcI~velIu.Lewis,417 U S. 583(1974) beconsideled. For example, a defect in (multivolutne set) (Exterior of automobile) one prong could he "cured" by a stlong Goldstein, "Search and Seizure,'' 15th *~MicI~igaizu T~JIZNS,458 US. 259 showing in the other. IVareu. State, 724 Annual Advanced C~iminalJaw Coulse (1982) (Gun in air vent) S.\V.Zd 38 @ex. Crim. App. 1986). See %Mid~&Ui7 U. LOllg, 463 U.S 1032 also Cassias U. Slate, 719 S.W.2d 585 (1983) (Protective search of car for (Tex. Crinim. App. 1986) (facts too imple OCTOBER 1990 VOICE -FOR THE DEFENSE

State v. Mattox Footnotes Conversatron between Attorney General Jm hfattoxandwile)~a1, rions. All have the central meaning of anindurr- praiser, or other pwfessional ahisor, or 34. 14 'l'eu. Jur W "Contraas" $123 at 207-08 menr to produce involuntary lssenr in anolller. (D) anofficer, director, pamcr, manager, or (emphasis snpplied). &loreover, even arcrethese penal code defd- other paaicipant in the direction of the affairs of 35. See, e.g., Tex. W.Civ. Stat. Ann. Art. 7W tionsinconsislenta~itliti~ecivlln~eaningofdu~, a corporati00 or aswiation. (Vernon 1364) (review of county and municipal it would be appropriate to use the latter meaning because (b) A penon who is a fiduciav commits an bonds); Tex. Rev. Ciu. Stat. Ann. An. 4378 (Ver- here, the bargaining contesc of bribery Tes. Code offense if he intentionaily or knowingly solicits, non 1776) (same); Tex. Rev. Civ. Stat. Ann. M. requires it. See Iknal Ann. §1.05(b) accepts, oragrees toacaept any benefit asconsid- 7W(Vernon 1964) (approval of bonds of in,- (Vernon 1979) (terms may be comtnted dilrer- erarlon for: prove~llentdislricis of home ntie cities); Ter. Rer entivfmiucodedefinitionswhen contex. W to beg this very imponant legal question, which 16 "Rteht"" and "dun!" are fundamental Ieml- at 437,437. 46. 451E 2d49(3dCrr), ce~f.&nrnd,405U.S936 will he fully analyzed :edubsequently. terms which are correlative to each other in the 11972) (revmv of mnvicttons under the Hob& 23. The State hadanir~tercstinsot~~eaftheleases sensethatmlheoonepersonhasxnghtin relatcon . .. . . pursuant tothe Rellnquishmcnt Act of 1719, Tex. toanother, theotherhasaduty to the fint person ~ct,18 U.S.C. 51751). Nat. Rcs. Code Ann. SS52.171-52.1% (Vernon correspond~ngto that right. Hohfeld, Some 7. Id at 72. But cJ, e.g. United Sfnw v. Whamy: F2d 386,393-94 (1st Cir3. ce. 1778 and 1985 SUDO.). Irrmdamerztal Legal CiItcepIiom as Applied hr 534 24. See TCY cons;. M U, 554 snrl5, Tex. Nar JzrdicialRmsing, 23 Yale LJ 16,30 32 11713) Iexid, 427 U.S. 819 (1776) ("briber, and extor- ton as used m the Hobbs Act are not nlutualls Rffi Code Ann. 551 011 el-. (Vernon 1778). Consideranon is thus the concept encompassing 25 hlemorandum of June 17, 1983 Telephone the vahd n~umalcreatmn of nghts and duties by OCTOBER 1990 VOICE FOR THE DEF'ENSE

Dscember 13-14,1990 J~w24-25 1891 CDLP Sktlls Course CDW Se# C~fmesSeminar FmWmh El Paso

IkYzmbm 15,1990 Febroar). 1415,1991 A@ 18-19>1991 TCDLA Uoanl kfeeting TLDLABtACDL thwg Seminar WW Homicide Seminar Fort WOIth ~~mston

Editor's Column Coirt~i~riedf,ompage36 PubIicati.ons for ,,. 'I I time. He is a candidate and Democi.atic nonlinee for the Texas Cowt of Crimi- nal Appeals, Place 5. Judge OwiSreet is vay involved in civic affairs. He has sewed on the hoards of directors Tn- cluding United Way of Ama~illo,Big DrmhedBig Sisters, the YMCA, the I988-1989 Ediiibn 0 Rape Crisis Center, thePanhandleHealth Crimioal Practice Farms Diskettes (sofh'(~re~L~B&.&&?: $100.(10 Systems Agency, and Mental IIealth/ Word Pe~fect.Microsof, Wo14 - Mental Retadation. He is a sustaining O Capital EiIurder: Defense Against- thk Death Pee member of the Texas Democratic Pa~ty Maiid19.36 Edition (this book isfree to anvone a~~oinred. . and a charter member of both the No~th to a,GapitalMurder Case) ~narilloPoliticalAction Committee and P CDU DWI Defense Seminar -October B89. Corpus Wsti $50.00 the Texas Coalition of Black Demo- O CDEPFederal Sentencing Guidklines Seminar. . $s&Oo epats. He is also very involved in the Book+eeenibe~ i98i Dallas Moimt Zion Baptist Church. LI Represehiing Sex dffenders and4je "citemical Castdon $PiiM, Judge Overstreet, we also wish you %fens&- Auitior: Ray Taylor luck! CDLP Si+xCiimesSeminwCw'rse Book $5(XOD

(State Bar of Texas) Meeker, "Warrantless Searches and Seizu~=s," Voice for the Defeme (five Sales Tax is not included. ((8%) pan article, Nov. 1988 - Mar. 1989) Pleasecheck desired purchase(s) and send &is order form to the 2 Crinzirrstl Fin1 Hstndbook (Hanford Criminal Defense Lawyers Project, 600 West 13th,., Street, Austh, Texas 7&il Press (1989) 1TevasCri1?1i~ia~PmtlceGtride(19881, IAEvIE Divisions I1 and IV rake^, T~~ISCJ~~~~~~?PIVC~~~I?WH~I~~- LDDRESS book /1%8).

'I ZIP - PHONE NO. Footnotes

lsh Sal O Check Enclosed 2. With the advent of this good faith excep- tion, the area of challenges to searches AU bonks will be mailed hook~ate(allow 4 weeks delivery) unless otherwise swified. based an warrants has g~eatlydecreased.

OCTOBER 1990 TEXAS CRIMINAL DEFENSE LAWYERS ! Some of the best legal minds I ASSOCIATION I I I .in this state already belong to the Texas Criminal Defense Lawyers 1 MEMBERSHIP APPLICATION I .. I (Please print or type) Association. We believe we have now the best Criminal Defense Bar in ! the United States. We maintain that level of excellence by continuously seek- I I NEW MEMBER APPLICATION ing out new minds, new energies. Therefore we want YOU. . .if your IegaI ; ~NEWALAPPLICATION and personal philosophies are compatible with ourpwposm and objecrives: I I To provide an approprfate slate organization representingthoselawyers who i NAME I (ro amrm Mrmbenhlp Omcm~) I are activelv eneaaed in the defense of criminal cases. I I I To proteciandk&e by rule of law those individual rights guaranteed by : MAILING ADDRESS I the Texas and Federal Constitutions in criminal cases. I CITY- STAEZIP I To resist proposed legislation or rules which would curtail such rights and I to promote sound alternatives. 1 BUSINESS TELEPHONE (-)- I I I To promote educational activities to improve the skllls and knowledge of I : FAXNa (-) I lawyers engaged in the defense of criminal cases. I To improve the judicial system and to urge the selection and appointment ; BAR CARD NUMBER I I I to the bench of well-qualified and experienced lawyers. NAME I ; I To improve the correctional system and to seek more effective rehabilitation (A3 rrmrasa m sage Bar card) I I opportunities for those convicted of crimes. I : TITLE FOR SALUTATLON 1 To promote constant Improvement in the administration'of criminal justice. I I I (MrJ- Wn 1- s- I ADVANTAGES FOR TCDLA MEMBERS 1 SPOUSENAME I The monthly Voice for the Defense magazine I I The *Sigoifim DecisionnRepon" of impomt cases dectded bythe Texns Court of Criminal BAR DATE: Moalh Year I I Appeals and Federal Coum. ! PROFESSIONAL ORGANIZATIONS: (Coneat) ! TCDLA Membership Directory-referrals to and from CrimimJ Defense Lawyers in over 100 Texas cities. Outslandmng educational progcams-featuring recognized experfs an practical asp%@of defense eases. TCDLA and ihe Sble Bar annually present many seminars and caursas in all parts af the slate. ate Availability of Lawyers Assism Camminee, a ready swree of information and assisfsnce Nalooal to members, and the Amicus Curiae Cammiuee. I Orgahizational voice through which criminal defense lawyers can formulate and express I AREAS OF SPECIAL INTEREST IN CRIMINAL LAW then position on legidation, court reform, important defense cases through Amicus Cunae I (CcrclSeaiim rquina) activity. Diseounls and fmofferings for publications of interest to criminal defense lawyers. Messenger service in thc Capital area. CERTIFIED CRIMINAL SPECIALIST: YESNO- ELIGIBlLITY AND DUES I(ESrnENCE TELEPHONE (-) Voluntary Sustatning ...... S3W.W (Ail o@en & dmetors must pay Voluntary Sustaining dues) Sustaining...... $2W.W (All assocrate &rectors must pay Sustaining dues) Duesfor n~emkrsin the fiml of a sustaining or charter member...... $ 50.00 I I,r onsnlbcr O~TCDLA,klirve*~i~applicanl taka p;rsonufpro- I Mmnbcrs admitted m practice: (based an slate license date) ksriondl compztnc). integrity, adgad onoral character. lhc ap I 8 2 years or less. $ 75.W plicant is actively engaged in the dcfrnv of criminal raw-. I ...... ! more than 2 years...... S150.W i I I Date I Public Defender...... $ 50.00 I (S,gnaWre of Membcd I AfiiiaI~:Pmns in careem which wnlribute 10 &fee orcriminal I I I I case, ~g.,law pmfessors, are cligibb far affiliate membe~ship 8 @tint ot Type Membcfs mmc) I upon applovnl of Ule application and receipt of lkannual duw. I I I Armiste Dues (AFQ ...... 50.W : Mail to: I Studenls: Those regularly enrolled in a law schml in Teras arc I Texas Criminal Defense Lawyers Association elipible for smdcnt llwlkr~hip. I ; SWnt DUo6 (SDMI...... 20.00 I 600 Wesl131h Street I I Auslin, Texas 78701 I TEXAS I I CRIMINAL I FAX No. (512) 469-9107 I I I r,,,,-,,,,,,,,,,,,,------J LAWYERS ASSOQATYrV

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION 6W West 13th Street Austin, TX 78701 US. POSTAGE ! . . ..; ..... ; WELDON I permit No. 2454 1 ! 1:f01~0fl~ i: *+\.' ., < 111-B N. Sprinq,gt, :: 1 -----..__ .,8 8 i Tyler, Texas . 75702 * :' *;.- ~. "., . .'..