Web CDLP Hits the Beach July 20-21 , 2000 Radison resort South Padre Island-(210) 761-6511 Hotel Room Rate: $135.00 - Hotel Cut off Date: June 19,2000 An appllcation for 13.5 Hours MCLE (2.25 hours Ethics Credit*) is 1 Thursday, July 20,2000 pending 1 &30 Registration 11:30 Coping with Cop Created Crime Stephen R. Glassroth 9:00 Preperation for the Child Sexual Montgomery, Alabama Abuse Case 12:15 Lunch Richard Rodriguez, Harlingen 1:30 Motions for New Trial 9:45 Current Parole Developments Joseph A. Connors, Ill, McAllen William T. Habern, Riverside 2:30 Ethics and the Death Penalty* I Cynthia Hujar Orr, San Antonio 1 10:30 Break 3:15 Break 10:45 immigration Laws for Criminal Practitioners 330 Dealing With Grievances* Richard L. Prinz, Houston Ana Lisa Gaaa, Rio Grande City 415 Motions Practice 11:30 Use of Expert Witnesses Chris Flood, Houston Ronald P. Guyer, Houston 5:00 Adiourn 12:15 Lunch CDLP Hits the Beach 1:30 Opening Statements Please complete and send this registration form by mail to: CDLP 600 West 13th *Austin. Tx 78701- 1705 William P. Allison, Austin or by fax to (512)469-9107 Name 2:30 Ethics Bar Card # Robert A. Jones, Houston Address Clty, State, Zlp 3:15 Break Phone Fax E-mail 3:30 Voir Dire Lariy Sauer, Austin Please check all that apply Registration Fee: 415 Federal Criminal Income Tax 9 Current TCDLA Member $200.00 J.A. Tony Canales, Corpus Christi Q Non-Member $275.00 Q Judges $89.30 5:00 Reception Can't Attend? Buy the book includes shipping and tax $89.30 Friday, July 21,2000 Update your membership or join and get the seminar at the member price. 9:00 Kung Fu Stratagies and the Act of 0 New Member $75.00 Trfai Renew Membership $150.00 Daniel E. Monnant, Wichita, Kansas Q Early Registration ends July 7 after that date olease add $50.00 8:45 'Cross Examination your Total Michael P. Haskel 0 Check inclosed 0 Charge My 0 Visa Q American Express 10:30 Break 0 Mastercard a Discover Name on Card 10:45 Smart Weapons and Card Number High Tech Demonstrative Evidence Exp. Date E.X. Martin, Dallas Please call randy at 51214780514 or check out our web site - www.tcdla.com for informatloni CDLP programs are supported by a grant Scholarships Avaliable from the Court of criminal appeals Megaage Editor's Comment Director's Perspective Federal Corner Robert C.Hintm, Jr. John Carroll D'Ann Johnson F.R. (Buck) Files, Jr. 6 8 10 12

On the Cover I L~LA'sNew rmsruent, Ruuwt b. Hinton I

On the Federal Sentencing Coidelines for Nlethamphetamine 18

Texas Convicts Trapped in ;I Baffling Legal Maze I by Uavld Hargrove I

Jury Nullifications in Capital Cases ( by Clay S. Conrad

~ustyDuncan rnotos Criminal Justice News Surf the Web Significant Decisions Motion of the Mo Summer Fun New Members Li

www.tcdla.com President. Robert C. "Bob" Hioton, Jr. DaIIos \ President-Elect Betty Blackwell Austin v 1 ~intVice-president ark G. DanielForl Worh Second Vice-president .Cynthia Hnjar Orr Son Antonio Weasurer Daniel W. Hnrley, Jr. Lubbock Secretary. Randy Wilson Abllene Editor-In-Chief Voicefor the DeJ2ASe John Carroll Sun Anfonio Editor, Significant Decisions Report Cynthia Hampton Aurlin Immediate Past President. Michael P. Heiskell Ft. Worth

Amicus Curiae Ron Goranson, Co-Chair 214-651-11211214-953-1366(fax) Ell1 Harris, Co-Chair 817-332-55751817-335-6060 (fsx) Death Penalty. Cynthia Hujar Orc 210-226-14ti31210-226-8367 (fax) Hall of Fame. Frank Jackson, Co-Chriir 214-871-11221214-880-0443(fax) Clifton "Scrappy" Holmes, Co-Chair 903-758-22001903-758-7g64 (fax) Lawyers Assistance. Rick Eagcn, Go-Chair 940-566-1001l940-757-9878(fax) Dan Hnrley, Co-Chair 806-770-07001806-763-8199 (fax) Stanley G. Schneider, Co-Chair 713-951-95551713-951-9854 (fax) Legislative. Keith Hampton 512.476-84841512-476-9309 (fax) Bill Eabern .SpeeialLlasonlCorrections 409-594-21231409-594-9100 (fax) David O'Neal .Special LiasonlPrison Watch 409-437-52681489437-5293 (fax) Memborsbip .Randy Wilson, Co-Chair 800-588-46781915-677-6129 (fax) Bennie House. Co-Chair 713-688-33981713-680-0804 (fax) Lydia Clay-JacIcson Co-Chair 409-760-28891409-756-0901 (fax) Verse1 Rush Co-Chair 940-767-75671940-723-9972 (fax) Mentor Carslyn Denero 512472-13531512472-1316 (fax) Women & Minarlty Defenders I Women .Katherine Scardino 713-520-52231 713-520-5455 (fax) Minorities Lydia ClayJackson 409-526-11711409-756-0901 (fax)

Managing Editor. D'Aon JohnsOd Feature Articles Editor Greg Westfall 500 W. Throckmorton #I801 Fort Worth, Texas 76102 Production Assistant. Rose Valenzneia, TCDLAIHQI~~Office 5121478-2514 Layout & Design Monica Isabel Martinez, MPress, Inc. 5121389-0J40 Assislnnt Feature Articles Edilora Cynthia H. Orr 290OTower Life Bidg. San .\nmnio,'l'exas 78205 2101226-1463 [email protected] W. Regan Wynn 120 W. 3rd Ste. 300 Fort Worth, Texas 76102 8171336-5600 --- -.- &ice for I@ Defense (ISSN 0364-2232) is published monthly, except for JanuaryIFebmary and I~~lylAugust,which arc bimonthly, by tltc Tenas Criminal Defcnse Lawyers Associalion Ine., 600 West 13th Street, Austin, Texas 78701. Printed in the USA. Basic subsription rate: $36 per year when rceeived as n benefit of TCDLA men~bership.Non-member subscriptions: $75 annually. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Yoce for the Defernee 600 \Vest 13th Slrcct, Austin, Tcras 78701. Yoicefor the Defnse is published to educate, tmiu and support attorneys in the prac- tice of crin~inaldefense law. Please send all feature articles to Gmg Westfall, 500 \V. Throck~norlou,111801, Fort Worth, Texas 76102-7414, 8171336-5600. Please send all other materials for publications to John Carroll or D'Am Joltnson at thc TCDLA home office, 5121475-2514, fx 512t469-9107 or cwail at djohn- [email protected]. Statements and opinions published in the %ice are those of the author and do not necessarily represent the position of TCDLA. No material may be rcprintcd without prior approval and proper credit to the magazine. 02000 Tcxas Criminal Defensc Lawyers Association. THE PURPOSES OF TCDLA

To p~otectc~ncl illsure iby ~uleof iaw tliosc incliviclu~ lights ~uurnlrteed by llie Texcli c111d Federal

Consfilulior?siri criniinol cases: to resist tihe constant efforts whicl? ale now being niude to curtoil such lights: to encourage cooperalion lbetween lowyels engaged in liie lu~tliernnceof suclr ol?jectivei through ei~ucaliol?cdprograms and other assistarrce: and th~oughsuch cooperatio~l,education und ass is^ tcuice to promote justice cmcl lhe comn-icn goocl.

VISIT THE TCDLA WEBSlTE

@+Pjuly/A~g~&t 2000 - Voice 5 teaching our Footsteps Turning towards the Horizon by Robert C. "Bob" Hintn~~,Jr.

s this phenomenal and fasci- review of the conception, gestation, of "lonocent Persons in Pnson, The nating Association enters its birth and early development ofthis mag- Need for Innocence Protection a thirtieth year, it is absorbing nificent entity we now mewith pride, Legislation and Fommt~onof h6Texas to re-trace its enonnous foot- appreciation and respect. The product of Iimocence Network". Barry Scheok, our steps. Enonnous, hecause they were left their efforts will be displayed at the own Edward Mallett, the incoming by the colossal titans of our profession. "Members' Party" in June, 2001. FIO~I NACDL President, outgoing TCDLA Phil Burlman, Em& Maloney, Emmett the Iilming I have been privileged to President Michael Hciskell, Bill Allison Colvin, Tony Friloux, Warren Btunettt observe to this polntJ can assure you it and others met the media in a very pro- George Gilkerson, Chaley Butts, will be a "block-buster"! ductive conference which garnered wide Weldon Holcon~h, Stuart Rillad, Bob Cynthia &Jar OK absolutely stuns and concentmted coverage about tbis Jones, Charley McDonald, topic of moat importance. George Milner, Jr., Roy Congratulations, Cynthia, on Minton, Richard Haynes, yet another job done with Travis Shclton, Vince Perini, super-human exceIlence. Cliff Brown, Tam Sharp, Betty Blackwell and Mark Charles Tessmcr, Doug Daniel prodmed what has to Tinker, Don Wdson, Roy have been thc very finest Banem, to name but a few, "Rusty Duncan Criminal Law decided in 1971 it was time Seminar" ever! Knowing that for crimiual defense lawyers Betty, Mark, Cynthia, Dan to have a statc-wide pres- Hurley and Randy Wilson ence. They set upon the task constitute our chain of OE- to establish an assmiation of cers allows me to sleep professionals which would soundly at night. Eyen a have a voice to he heard in "Red-Headed Wildman" can't tlle legislature, and the criun- render things unsalvageable nal courts throughout this in the face of this roster of vast state. They sought to champions! protect andensure the consti- As president, I have two tutional rights of citizens major goals. The first is to acwsed, to educate and assist grow the membership to 3000 criininal defense lawyers, and thereby to me. I am beginning to hcliwethat she is by June, 2001. The second is to pmvide promote justice and tbe common good. super- human, some bionio creation of the snpporl for KelthHampton and AUen Weldon Holcomb, Geo~geGilkerson, the Goldstein laboratory of magic! She Place to have the nmst effective legisla- Judge Frank Maloney and Voice Editor- must ham no need for sleep or other tlve effort ever. W~thyour help TCDLA in-Chief John Carroll ham accepted the human escapes, as she obviously works can achieve these goals. Please, go out challenge of Co-chairing the "30th 24 over 7 by 521 Cynthia organized, of your way to sign np now members. Anniversary Commttlee". This scripted and orehestrated a very excel- Be available to go in Anstin to help Committee is charged with the respond lent and effective press conference on Keith and Allen. bility of producing a video-taped June2.2000, in SanAntonio on the issue ('rrfinwd an imfpng8)

Voice 6 - JulyiAugust 2000 - President's Message When they ask you to contact your legislators, do so! Keith and Allen are the pros. If we listen to them and do what they say this organization can make a big difference. We can achieve time goals if we want to. In the words of Raymond Holliwell, "Desire creates the powerlf'We enjoy the Inxury of hav- ingan inwedibly dedicated, talentcd and hard working staff. We need a member- ship hase of 3000 to be able to afford to keep these fine professionals. Please go the extra mile to recruit new memhen, and get them to come to our quatterly Board meetings. When members attend, they discover the intangibles that make this organization so grcat, and they take back with them a new spirit of pmfes- sionahn. As Racehorse soaptly puts it, they learn "why we do what we do"! With a membership hase of 3000 we will he in a better position to cause our fine staff to want to continue to do what they do so well. I close For now by expressing my sin- cere thanks to you for allowing me the incredible honor and privilege of serving as your President. Mike Heiskell is a hard act to follow. He is a great leader, and a man whom I respect and dearly love. It has been a high point in my career, in my life, to have worked and played with Mike, and to count him as one of thc very best friends I have in life! This organization and I are very much inhis debt. Mike cannow baskin lhc richly deserved glow of his lovcly wife, Anita, and their perfect new baby, Michael P. Heiskell, Jr.

Life is good! HAS IT Criminal Appeals cases, and thanks to result of D'Ann's efforts. We all owe our Cytithia, I don't have to. Every issue, we executive director a debt of gratihidc for ONLY BEEN can count on her thorough, careful and tho hard work sbe does on the I'oicefor uon-argumentative reports of importai~t the Defewe. ONE YEAR? cases that affect oor practice. Cynthia ARer rcadiig this, youmay he think- con~bmesthe qualities of being iiitercst- ing, what does Carroll do? A fair ques- ed in wnting the significaut decisions tion which is beyond the scope of this report with the intelligence to do it well. column. Despite the largely thankless She is a major reason the Weeis a usc- nature of their tasks, Cynthia, Buck and ful tool for your criminal law practice. D'Ann continue to make their impoltant contributions to the l'oce. Their hard work and dedication help make the Voice a useful hcnefit of memuhenhip in every month is Buck Files' Federal TCDLA, While the regular feahues are Comer. Congress, the Courts and the an important part of the heice, most of Justice Department kecp tinkerii~gwith our content contmues to come from the the criminal law. Fortunately for contributions of TCDLA members who TCDLA, Buck Files is paying close kindly submit articles and Motions for John Carrall, attention and understa~~dswhat is going publication. Subniissions fmn our on. Despite his V~IYbusy law p~actice, membcrs are up fro~nwhen I started a San Antonio criminal we can count on Buck to take time every with the Koice, hut we can always use defense lawyer, is the inonth to keep us up to date on devclop- more arl~cles Voice Editor-in-Chief. lnents in federal criminal law. Last month we did a disservice to Buck that needs mention. Buck wrote a column on This year is an important one for HAS IT ONLY BEEN ONE YEAR? the rcccnt Fourth Amendment decision TCDLA as wc prepare to celebrate our I now have completeda full year with by the Supreme Court in Uii~edStatesv. thirtieth anniversa~yas an association. the Eice fd,. the Defense. It has hccn kd,120 S.0. 1462 (2000) This was We plan to commemorate the occasion more fun than you think (like white- the unconstitutional squeeze case which with a special aniliversary issue. One of washing a fence). Despite a few sinall originated in the Western District of the things we are working on, as evi- problems and corrtroversies, the year has Texas. Somewhere between the printing denced by the videotaped intenriews gone well. 1 have appreciated the kind and the publication we lost Buck's mar- during the Rusty Duncan seminar, is pre- aud supportive comments from many of gins, turning his block quotes into nm- servmg the collective memory of niy fellow Association members. on sentences and leaving some question TCDLA. If you have any photograplis However, to the extent yon like what as to the sotuce of one of his quoted from old (a rclative tem, I was only ten you are getling in the Kwe, yam tnrly paragraphs. Wc apologize to Buck and years old when this club got started) is not responsible. The most impo~fant hope to keep his co11mu1 looking as good TCDLAgatherings, or of TCDLAniem- thing I have learned is what, or more as it rends. bers in action, in court or on the slopes, significautly, who, makes the lbice run. I would appreciate it if you would send copics to tlie home oEce so we could Ifyou like the way the %ice looks, if cons~dermaking use of them. Every month, I can count on tbe fact you like the articles you've beenreadmg, I have mole wo~kto do on the mice that the IWce will have a well written, you nccd to thank D'Ann Johiison, who, this year in order to accomplish the goals mfonnative. useful Significant in addition to running the entire I set a year ago. I hope to have more fea- Decisions Report thanks to the selfless, Association, ~nanaging innumerable tures usefiil to our everyday practice, and all too thankless efforts of seminars, participating in lobbyiog more hook reviews and more informa- Cynthia Ha~npton, assisted by Mike etiorts and so much more, puts the Yoce tion about resources for legal and inves- Charlton. Toiling away in Austin she together every month. D'Ann spends a tigative research on the internet. In our asks for nothing from the Voice or from lot of time working on the Voce. The drive to increase membahip in the TCDLA and provides one of the best March issue, which fooused on Association it is important that the %ice benefits of inenihcrship to TCDLA. Corrections in conjunction with the continue to be a valuable asset in I know I don't read all the Court of TCDLA Corrections scniinar, was a TCDLA's hag of member benefits

Voice 8 - luly/August 2000 - Editor's Comment

doa't generally watch boxing. Two Hc was boxing his way to a world guys httting each other in the head chainp~onshipwhen his attempt to get a I as hard as they can just isn't some- driver's license tipped off the thing I tune into for relaxation. But the Innnigration Service. A feu, months other night I attended a premier showing later; INS scnt bm back to Mexico. of a dwtnnentary, "Split Decisions", Teased because of his lousy Spanish, about an Austin boxer. away from this parents and shhns and diskusted by the Mexican hmring conntiu- Jesus "El Matada" Chavez became nity, J~esusis mtt ofoface 61 Mexico& can7 the North American Boxing Federation return to the Stales. Super Featherweight Champion in 1997. Austin Mayor Kirk Watson honored him The film's director, blarcy Ganiott, w~tha Jesus Chavez Day. He has a near made the film after meettng Jesns perfect rccord of 32-1. Despite h~sbox- tl~nougt~her boxing brother-in-law. She ing success, Jesus is hkc a man withut was shocked how the system works. a country. Born in Meuco, but raised ni She had believed that if a person com- Chicago since age 7, ins boxing career mits a crime, awepts punish~ncntand was on the rise when, at 18, he madc a rehabilitates hinlselve society should decision that changed 111s lifc. At the forgive. The film shows how unforgiv- tlme of the championship-fight. Jesus ing both the criminal jnsitce system and \\as fghting a deportation ada to Me..tco. the immigration laws hnve become.

Following a couple of neighbo~liood Jesus is applying for a pardnl from tough gnys, he joined in a groceiy store the Governor of llli~rotsand n work robbay. Thenert day he told his boxing waiver om the INS so be can make a coach what 11s had done. The coach nm at the world liile. He's viorr~edabout lwked at him and said, "What are yon rime now. At 28. his main competttors gmng to do when yon go to jail?Vesus alc 21 and 22 Soon, he says, he w~llbe was stunned. No snrpnse to criminal too old to be a slmng contender. defcnse attorneys, but the ktd jnst hadn't thought about the coilsequences. For your clrents who me not US c~h- zens, the decision on their cases may Ashamed of the pain he cawed h~s have harsher conseqneiices than jail family, wanting to be a man and &ce the tune. Just as TCDLA member Bill consequences, he pleaded guilty. Jesos Maynard says, "Renmuher 364 Days". served three and a half years in prison. A posslbie sente~~ceof morc than 364 Prominently drsplr+red inside ptism is days pnts a non citizen client 111 danger ) the sign "Decis~onsDefernnnc Desttny". of depo~%atim~. Call an immnigration Becatisc he was Mcxicatt-born, INS atiumey if you are not certain of pool plcked him up at the ppnson gate and put client's imnt~gratio~lconsequences him on a bus to Mex~co He hadn't Ilved there for twenty ho ycars. Split Decisrons" is a great film Try the other suggestions for books, films, Jesus prinptiy retnn~edto thc United web sites and vacstlons found m this Stales, although illegally. He started edthon of the Yoice. boxing under a dtfferent name in Austin. -Hap@you ergov tire strmrrte,:

Voice 10 - JufyIAugust2000 - Director's Perspective Rusty Duncan 2000

P=-luly1Augu;t 200U - Voice 11

1 court 11eM that that was snfficient evidence it collected from its congregation for the to meet the intcrstatdforeign comlerce Texas Annual Confcrencc; that theTexas requirement for a federal murder-for- Annnal Conferewe forwards the major- Sometimes the hire conviet~on. itv of its contr~butioas to the United As to -and therc is a Methodist Church's General Counsel on strength joker in the en banc deck: Recently, our Finance Administration in Evanston, of one... judges have been unable to agree on Illinois; and, that these funds are distrih- interstate commerce issnw. This has utcd to various ministries throughdut the resulted in tie votes and orders affirming world ...lies within the the judgments of tho distr~otcourts. My only conclusion on this topic is . United Stata 1, H~cknmn,- F.3d painft~llyuusophisticateed: If you have a power (5th CK 1999). The defendants hint of a sniff of a scintilla of a of a group. were charged with violations of the Commerce Clause Issue in any criminal ~ohb'sAct, I8 u.S.C. 8 195 1. IIIa com- case in any district court within the Fiflh mon scene, they had robbed various Cicu~t,file your motion and hope that-- restaurants m three different c~tiesin the if you don't prevail in the &strict court- Eastcrn District of Texas. The judges you gct a friendly panel. And no en banc could not agree on whether these rob- review. l beries obstn~eted,delayed, or affected commerce or the movement of any arti- The TCDLA long distance plan, cle in comme~~. administered by Eclipse . Uniterl Slates v Kirk, I05 F.3d 997 IMPORTANT Telecommunications , is hased on (5th Cir. 1997). The defendant was general economic theory -- the charged with a violation of 18 U.S.C. $ TAX NOTICE I I higher the volume, the lower the 922 (o), the machine gun statute. The DuesjTax Notice ind~vidndcost. The TCDLAP- judges were unable to agree whether the please note the following: 1 gram is based on the idea of provid- possession of machine guns had a sub- ing individual companies with stantial effsct on iuterstate comllrerce. $36 of your annual dues group-based purchasing power and In another case which d~dnot merit ($19 if a Student Member) benetits. en banc review, a panel of the circuit is for a one-year subscrip- vacated the defendant's plea of gnilty in tion to the Voice for the Our longdistauce program is as log- a T~tle18 U.S.C. 5 844(i) arson case Defense. and $39 of regu- ical as 1,2, 3. holding that "...the fachtal basapresent- lar dues is for TCDLA leg- 1. Endorsed by your association edto the district court dues not support a islative programs. 2. Guaranteed flat rates findkg that Johnson's December 1996 3. Memhers only servlce arson of the Hopcwell United Methodist Dues to TCDLA are not Church resnltcd in the damagc or deductible as a charita- For a quicklate comparison or more destruction of a budding nscd in inter- ble contribution but may information, contact an Eclipse state commerce or in any activity affbct- be deducted as an ordi- account representative at 1-800. ing interstate commerce!' United Shrms nary and necessary busi- 342-9287 v. Joltnson, 194 F.3d 657 (1999). ness expense...... In &&ma, the government had Or you may also complete the oiTefed a written "Factnal Basis" which Because of TCDLA'S leg- following infom~ationand fax to contained the following: That the defcn- islative program. $39 of 1-800-342-4240 dant had set thc fire in thc church in an sustaining and regular Name effort to cover up past bnrglaries of thc membership dues is not Company church that the clmrch was insurcd by an deductible as a business Phoue out-of-state insurance cotupany; that the expense. Avg. mo. we insurance company had paid a claim on $89,000 to the church; that the chnrch TCDLA 10 was a member of the Texas Annual Conference of the Umted Methodist Church and contributed approx$mately sixteen percent of the money that FJulyIAugu5t 2000 - Voice 13 MNEW APPOINTMENT Judge Michael J. McConnick issued an order appointing The Fifih Circuit ruled that the ADA did not apply to ple- Honorable John Hyde of thc 238th District Court of M~dland arrest situations involvingpolice. In a case on behalfof an ex- County as being soley authorized to Issue search warrants for Mariue who was suicidal, the family called the police to help the interception and use of wire, oral and electronic cotnmu- transport h~mto the psychiatric uuit at St. David's Hospital in n~cations under Artde 18.20 of flue Code of Criininnl Austin Instead of approaching the sihiation as a mental Procedure. The appointment is effective immcdiately and is health lransporl call, the pol~cearrived and treated it as any on file with the Clerk of the Court of Cr~minalAppeals. Judge "crime in progress" call. W~thinthrity seconds of arriving, Hyde replaces Judge Weldon Kirk who is retiring from the when tl~cyoung man beca~neagitatd, the police shot him 32nd District Courl on June 12,2000. lwicc, once throi~gh the chest. He hved, miraculously. However, the appellate court decided the police did not have to adjust or adapt their procedures to handle people with mental d~sabilitiesany differeutly up until the thethey arrest them. The case will he appealed.

REACHING OUTTO HELP BA~ E WOMEN IN TEXAS STATE PRISONS Tbe Texas District and County Attorneys Association

The Norlhwcst Assistance Ministries' Family Violence Center in Horiston developed a counseling program for bat- tered woincn who are incarcerated in Texas state prisons. fcaluring: KI~IOgg on Gangs, and Joh~iBradley on Pleas, Probation and Punishment. A grant frm tl~cTexas Department of Human Services The program will be offered in Edmgburg, Dallas, San allows the center to develop a colinscling program for this lo, Lul Houst I, El Pr 11 Antonlo. underserved populatton. There are hi-weekly support groups lore in uon. c< A at 5 1-2436. for battered women in Plate Slate Jail and Hndey Substance abuse Facdity in Dayton. Once a month, there is a suppo~t group at the Gatesville Prison in Gatesv~lle. In the tcd for the For more information, please contact Becky Blasingame at 281-855-HOPE (4673).

Voice 14 - July/August 2000 - Criminal Just~ceNews GEURGE ROMAL5 MEMORIAL SGWOLARf HIF'

, of IADL was created in 1946 by jurists who fought in World War the Collin Connty I1 and participated in the Nuremberg Trials. The organization Criminal Defense ammotes findamental human rights and suowrfs the aims of Lawyer's Association, ke United Nations. FULLT~-PROFESSIONALSIN THE recently presented a LEGAL FIELD DO NOT NEED TO APPLY FOR A SPE- check for $3,500.00 to CIFIC LlCENSli 1'0 TKAVEI.TO CUHA. For more infor- for Ms. Lanchi Huynh of mation visit the IADL wehsite (www.iadllaw.org) or trav- el regulations, see (www.nlg.org). mano East Senior High, The Federal Public Defender for the Southern District of as this years recipient of Texas is presenting a seminar designed to assist Criminal the George Roland lustice Act I'anel attorneys in dcfcnding a criminal case. For Memorial Scholarship. mom information call (956) 630-2995. -.... Ms. Huynh has been accepted at Rice Uliwrsity. She plans to pume a career in Environmental law.

The International Association of Democratic Lawyers (IADL) is holding a conference entitled "Establishing a Just International Legal Order". The conference will bring togeth- er lawyers, jurists, and educators from throughout the world.

ATTORNEY GENERAL CONFESSES IFDRnR ihl hAARTINF7 PACF 1

In the case of Miguel Martinez, the Attorney General con- fessed error in sentencing. Fred Zain testified at trial that an axe and two knives wntained the blood of victims. The Past president, Michael P. Heiskcll swears in new presi- experts at tbe habeas hearing testified that the blood was not of deut, Robert C. Hinton, Jr. human origin. Congratulations to Gerry Goldstein and Cynthia Orr.

The Texas Civil Rights hoject recently tiled suit against Taylor County and the state prison system for an HIV+ per- son who was denied participation in a special DWI alterna- tive probation program. The authorities terminated his par- ticipation because of his HIV status and instead sent him to prison for a year, where he did not receive appropriate med- ication for more than a month. Not only this, but the District Clerk of Taylor County wrongly disclosed his HIV status, 2000 OllTcers, from IcR to right: Randy Whn~,Cynthi, wntnuy &Texas law. On; Betty Blackwell, Dan Hurley and Mark Danicl. Sites for Kids @ UNDER 10 http://www.pbs.org/kids/ Follow these liito sites for peren- nial favorites like Sesame sheet and Mr. Rogers as well as to the more modem Teletubbies and Zoboomafoo and play matching -zames, trivia -ctames. stories, newslet€ers, and more. Check out " ' the Parent Survival Guides fmt so that you know what's cnming! After ? you impms them with your ability to stet to the site. this is a chance for your kids to show you what they

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July/August 2000 - Voice 17 ON THE FEDERAL SENTENCING GUIDELINES FOR METHAMPHETAMINE

earches of pny comlnentat~ t already thrown uch darkness on ris subject, and it is bable that, if flu cunmtisue,we shall

at all about it."

I- Mark Twaiiz

Voice 1% - ]ulylAugust 2000 - Guidelines for Methamphetamine statute, hut that definition contributes substances pxoduce radically different nothing to the typical lawyer's under- physical and psychological effects. standing of what they are. Chemists developed several system- Isomers atic methods for nalning isomers ill such D rngs of abuse are identified by Isomers are three-dimensional entities, a way that -- to use this pyramid exam- many names of no value for unambigu- so they must be viewed in three dimen- ple -- it is pnssible.to specify everything ously identifying the drug. sions to be understood. Figure I is to he about the isomer including the orienta- Methamphetamine, a familiar name that used to construct a pair of 3-dimension- tion in space of the various sides. The appears to he the chemical name of a a1 structures representing important fea- most universal of these systems is the dmg, is actually a "commo~l" name tures ofmethamphetamine isomers. Cut one created by the Chemical Abstract derived from the more descriptive name, along the solid lines, folded along the Sewices (CAS). Not only does it give N-methylamphetamine, but even this dashed lines, and with the correspond- an exact name to each isomer, it gives name is not the tnle chen~icalname of ingly numbered sides taped together, each a serial number called the CAS the substance. Strect names such as hvo four-sided pyramids will he formed. number that uniqnely applies to that iso- "crank," "speed," "ice," or "crystal" They are identical inshape, volume, and mcr just as a person's social security exacerbate the problem of distinguishing weight; they are made from the same number uniquely identifies him. among the foms of methamphetamine, paper and tape; they both have sides Regardless of what comnon name, especially considering that "speed" Itas I'abeled "A," "B," "C," and "D," and in street name, or teclniical name is applied hecn nsed to describe drugs other than a dark room they are indistinguishable. to the isomer, all are cataloged under the methamphetamine. If, however, they are placed on a table so sane CAS number, so the CAS numbers An attorney cannot avoid using ehem- they rest on the same-labeled sides -- can he used to ameliorate the confusion ically descriptive names for the con- "A"for instance -- and turned so the now found in the sentencing guidelines. trolled substances with which his client sides labeled "B" and "C" are visible, Sentencing Guideline Definitions of is involved. They are useful and neccs- those labels are on different sides of the Methamphefanrinc sary accounting devices for identifying two pyramids. No matter how they are The sentencing guidelines have at the substances listed in thc sentencing hirned, it is impossible to have them rest various times included four categories guidelines, hut he does not need to have on the same side and not he different in that apply to methamphetamine; these a chemist's knowledge of how those the orientation of the labcled sides that are: names are derived. are visible. They differ only in how they The misu~tderstandingsin the matter are oriented in space. To distinguish I. Methamphetamine of methamphetamine sentencing begin thcm one from the other, it is necessary with the difference between the defini- fo invent an arbitmy system for naming 2. Methamphetamine (ach~al)~ tions of metha~npl~etamineapplied for them and, if they are to represent 3. "Ice" thc separate ptnposes of convicting and niethat~ipheta~nine,it is appropriate to 4.L-MethamphetamineILevo- sentencing. The stahltory defnlition of call one of them "I" and the other "d." methamphctan~ine." any substance This exactly represents the nature of (except an i~?jectahleliquid) which con- methamphetamine isomers. While this tains any quantity of metharnphetaminc, slight difference seems trivial in light of including its salts, isomcrs, aud salts of the overall chemical and physical simi- "lce"and "L-Metl~amphetaminekevo- isomers...2," incl~~desthe word, '?so- larity of a pair of isomers, it is of great ~etha1n~hetanlineL-desoxye~l1edri11e" mners," from which all the confusion significan~in biological systems, being arc unan~higuouslydefined; the other stems. Isomers are defined in the the reason why otherwise identical two categories arc not.

July/Augusi 2000 - Voice 19 Because methamphetamine has two of the Sentencing Guidelines, the gov- isomers, the chemist can create at least ernment attempted to ~eclifythe omis- four categories into which it can be sort- The sentencing guidelines state that sion of a usability test by amendmg the ed, but these categories are entirely d~f- "The ndghf of a contmlled substnrzce first application note of the co~nrnentaq ferent from the categories in the sentenc- set forth in /he table zafers to fhe entrrr section8 to include an obliquely written ing guidelines. The first two chemical definition of usability that provides no neigh1 of the mixture orsub3tance con- categories are the pure isomers, which taining o detectnble nnlount of the con- pract~cal guidance for application are commonly called l-methampheta- beyond the narrow hounds of the few troIledsubstarrc& " In creating this def- mine and d-methamphetamine. The anecdotal, hypothetical cases around mition the guideline authors rendercd third is a mixhn'e of exactly fifty percent which it is eonstrncted. moot any argument regarding the phar- of each of the two ison~ers;this is called In United Stnfes v Lmw, 76 F. 3d macological potency of the substances a "racemic" mixhlre and is quite special 671 (5th Clr. 1996) , the court appeared taken into evidence, en~ovedfrom the for several chemical reasons. Thc fourth to be impressed bythe low concentration state the burden of assaying evcry lot of category is a mixture of the two lson~ers of methamphetamine in processing seized material for its potential efficacy in any pmportion other than exactly fifty residues and found U18t a compelling and said, in effect, that all street fonns percent of each. i'hble I lists the correla- need to separate the drng from the of metha~nphetamine are identical. tions alnoug the categories. matrix substance prior to use superseded Unfortunately this statement has served By encompassing all isomers, the the "entrre weight of the mixhlre or sub- as the haw of unreasonable sentences statutory definition of methampheta- stance containing a detectable anionnt of because "detectable amount" IS applica- mine only burdens the state with the the eoutrollcd substance" approach to ble only to cstabhshing whether the cvi- responsibrlity of showing the presence calculating drug qnantity. Citing the denee shoicld be treatedas an achlal drug of a quantity of either Isomer or any government's agreement that such a sep- or as a surrogate. The important criten- mixture of the two isomers in order to aration was necessary, the court vetted on for evaluating evidence blown to establish the charge, but the sentencing the idea that, by itself and independent contain a controlled suhstance is "usable court must detemune the chemical cate- of other considerations, detectable qsan- gory into whah the evidence fits then ~NOU~I~.'~ tity is an inadequate description by associate a sentencing guideline catego- "Usable amount" is a pract~caldef- which to evaluate the suitability for use ry with it. At least one assumption must inition used by forensic analysts. It of a particular exemplar of a substance be inherent in that correlation, and the div~desdtug evidence into one category containing an abusable drug, bnt beyond failure of counsel to examine and chal- ui wh~cl~the drugs are suitable for use in this literal expos~tionof the guideline, it lenge that assumplio~~(or assomptions) the context of trafiickmg and possession offered no substantive com1nentary by has resulted in ineffective assistance of and another in which the dug 1s an arti- wbich that guideline m~ghtbc more uni- counsel appeals. Many assumptions are fact of analytical or mvestigative interest versally applied. That Levay's solution entirely speculative or h~ased,hut there but not a product of clandcsttne com- in the instant case contained approxi- are good and sufficient facts wadable to merce or abuse. It does not mvolve a mately six grams of methamphetamine raise at least one of them above this dnig's pharmacological effect or poten- in ten-thousand grams of water serves to level: when the guidelines were fonnu- oy; potency is irrelevant to usability. A illustrate that the government as well as lated the majority of clandestine recent report stated that most of the defendants could profit by an end to the methamphetamine being trafficked in United States' paper currency is contam- confi~sion since this concentration in this country was produced by a chemical inated with detectable amounts of plain water or other potable liquid would procedure that yielded only the racenlic cocaine7, but those hills fail both tests of rep~nxent a phannacolog~callypotcnt mixture of eomers, so it isreasonable to usability -- first, because the holder of and recognizable article of abuse. (The behevc this mixture is the substanae that that b~llcouldnot recognize the presence volume of hquid described represents the sentencing guideline calls "methani- of the controlled substance and, second, approxnnately twelve hundred "doses" phetamine." That the equivalency for because the few specks of coctlme dust, of methamphetamine spoken to in "methamphetamine" is twenty-five being insufficient to ingest, mject or guideline application note 119 -- one times more severe than that of an equal inhale are worthless as a dnig of ahnsc. dose per one and a half teaspoonfuls of quantity of "L-Methamphetaminaevo- In the context of methamphetamine liqu~d.) From the court's language and MetllamphetamineL-desoxyephedrine" cases, the most common examples of the govennnent's stipillation that separa- 1s also reasonably consistent w~ththis nnnsahle dnzgs are those quantities of tion was required "before [the methan- assu~nlption~althoughthis relationship is methamphetamine found in the mixture phetaniinc] can be used," it may he based on the relative stimulant cffect of of chemicals m the reaction vessels used inferred that the substantive test applied the two substances, a factor considered to inanufaet~~rcthe dnig. Although the to the material in question was bascd in the statute and guidelines only to the test of quantity is obviously inet, the entuely on ds nature as a toxic or unns degree it affects the potential for abuses. toxic, malodorous, mud-like substance able cbemical manufacturing waste and one of the criteria for establishing a fails the test of being a recognizable that the admittedly dilute concentration drug's proper schedule. nlaterial of abuse. In the 1995 ruvis~on was important only because it was the

Vo~ce20 - JulyIAugust 2000 - Gu~dcl~nesfor Methamphetamine ,urden of Proof Vo~ce22 - July/August 2000 Guldetlnes for Metharnphetam~ne knowledgeable prosecutors immediately dilute solution of phenylacetone in conversion (a reasonable value), then the prior to trial or sentencing will7 water for the pure chemical and gram of phenylaoetone produees only Similarly, the failure to adequately reproduceseaoh step of the chemical 0.4 16 gram of methamphetaminehaving analyze confiscated drugs has seldom process exactly, no methamphetamineat an equlvelency of 416 grams of mairjua- been encountered as a problem among all wjll he produced because the water na21, which is identical to that of the reputable laboratories and analysts, hut interferes with the chemical process. A phenylacetone used as a starting materi- it is a common fault of local and region- dilute solutian of phenylacetone is al.) al laboratories where a considerable therefore not an immediate precursor to An interesting composite of fact and degree of incompetence is tolerated. methamphetamitlc. conspiracy often arises when immediate Phenylacetone present in that dilute precursors and listed precursor chemi- solution could be separated and used to cals such as ephedrine andphenylacetic prepare the controlled substance, so acid are included among the items of intent and potential are legifimate issues seized evidence. Instead of applying the The sentencing guidelines provide for purposes of trail and sentencing, hut gdeline standards and sentencing on equivalencies for certain chemicals des- these require that chemical analysis and the basis of the cumulative quantities of ignated as "immediate precursors" to appropriate calculations be considered. these substances, the government elicits controlled suhstances. There are three Table 2 lists the common precursors for expert testimony from its chemists to parts to this definition, hut the critical methamphetamine and the mixwe of determinethe qwltity of cMltmlled suh- one is that an immediate precursor is inethamphetarnine isomers to he expected. stances which could have been produced "an immediate chemical intermediate The govemmmt has, on several occa- if they had been converted into eon- used or likely to be used in the mannfac- sions, linked the controlled substance trolled substances (often using equip- ture2"' of a confrolled substance, with guideline specifying that "the weight of ment, techniques, and other chemicals to "imtnediate" presumably being used in a controlled substance set forth in the which the defendants had no apparent the normal sense that the conversion of table rofers to the entin: weight of the access -- or skills to apply them even if this intermediate into the controlled suh- mixture or snbstance containing a those materials were available.) stance can be accomplished in a one step detectable amount of the controlled snb- Although a conimon practice, it changes chenucal process with no other interme- stance" with very dilute solutions of the character of the evaluation of the evi- diate procedures required. unreacted phenylacetone set aside by the dence hm an ohjeotive computation Immed~ateprecursors differ from chemists at methamphetamine lahorato- based on demonslrable facts to an opin- pharmaceutical controlled substances in ries for purposes of recovering the ion limited only by the imagination of a critical way whereas potency or abil- potentially usable phenylacetone for the witness and the credulity of the ity h produce an effect is essentially reprocessing. Even though the pheny- court. irrelevant to trying or sentenclng for lacetone in such solutions fails the test crimes involving controlled substances, of being an immediate precursor and the 'he Burden of Immediacy potency or the ability to he converted form and substance of the solution clear- into a usable quantity of a controlled ly renders it recognizable as unusable as suhstance is the principal relevant issue either a drug or production chemical, the It is a necessary requirement that the when considering precursors. A chemi- government has requested and received government test each hatch of seized cal suhstance that can't be converted exaggerated and inequitable smtences precursor chemical to determine its into a controlled substance isn't a pre- on the basis of "'the entire weight of the chemical identity, hut to expect each cursor at all, and one that requires inter- mixture or substance containing a hatch to be tested to determine whether mediate processing steps isn't an inmie- detectable amount of the confrolled snh- it complies with one step convertibility d~ateprecursor. stance" without giving any considera- into a controlled substance is truly hur- Consider, for exan~ple,phenylacetone tion to the fact that precursor chemicals densome as well as being dangerous. (also called "P2P" or "phenyl-2- are not controlled substances. Th~s Because most immediate precursors propanone"), the most eonnnon chemi- mequity is also apparent when one con- must he of reasonably high purity and cal used to produce clandestine methm- siders that conversion efficiency -- the became the techniques of analysis nec- phetarnine. A chemist can place pure munt of drug that can be prodnced essary to prove chen~icalidentity also phenylacetonc into a flask with scveml from a given quantity of precursor -- is produoe sufficient data to determ~nethe other chemicals, heat them for a few bu~ltinto the equivalency tables. (For purityof the chemicals, it would he quite hours, and crealc racenlic mcthamphet- example, 1.00 gram of pheny[acetone simple and unqnestionably fair for lbe amine, so pure (or nearly pure) pheny- theoretically converts to 1.11 grants of government to fomlnlate a sentence on lacetone is, by definition, an irnmedmte n~ethampheta~mnethat would have a the basis of the amount of precursor precursor of ine?hamphetamine, and it is sentenclng equivalency of 1110 grams ehen~icalwhich could he actually he so defined in the sentencing gnidelines. of mmjuana. If, however, one assumcs retnevcd by extrachon or distdlation If, on the other hand, one substitutes a only 37.5% efficiency in making the from the evidence.

JulyIAug~~sl2000 - Voice 23

ITable 2 Commoh ylr;rll130r~fv. lliethamphetami~leand the mixture of methamphetamir., isomers to be expected

- - PRECURSOR PRECURSOR CAS NO. METHAMPHETAMINE ISOMERS PRODUCED

Phenylalanit~,like ephedrine and pscudaephedrinc, mists as two isomers so like cplledrine, it can potentially yiold several posriblc foms of methamphetamine. Only thc prodoction of d-methamphetamine from d-phenylala~11iw Ihas been reported to date, thcnforc it is the only isalner listed in the table. July/At~gust2000 - Voice 22 Thrnk Outside The Book ... 30%More New Client Calls. With Internet usage doubling every three months, just sit back and watch your practice grow. Firms nationwide are seeing explosive growth in new client cds. Criminal Defense Lawyers Only. Defensepros is the only Internet Powerhouse designed by criminal defense lawyers for criminal defense lawyers. Exclusivity -Just Five Firm Profiles Per County. Each County is limited to just five premium firm profiles. And to ensure fairness, fim profiles rotate every fifteen minutes. Incredible Value! Premium firm profles cost just $250.00 a month. And the number of profiles are guaranteed to stay at five - no matter how big your practice grows. Dodt Get Locked Out. Reserve Your Bsition Today. I Call 800-471-7337

The Ultimate Criminal Defense Directory mDefensePros.com special consideration is based on conve- includes some of the information found chemicals he abandoned. = mence of prosecution, not on medical, in table 2, but missing from the argu- chemical, or toxicological considera- nlellt is Sklner's observation that it is tions. The nearest analog to inethsn- poss~bleto produce phenylacetone from Subn~ittedby: phetamine is amphetamine, a drug that any of the fonns of ephedrine, and in so also exists in the form of two Isomers of doing, create the precursor for raccmic Ja~ncsL.Booker, Ph.D., which thc d-rsomer, like the d-isomer of ~nethampl~etamine. Principal Co~aultant, methamphetamine, is a highly abused 4. Limit sentencing based on "the Central Texas Analytical Consultants stimulant. 1-AmphetamincZZ, however is entire weight of the mixture or substance P.O. Box 68 not nearly so widely used as 1-metilam- containing a detectable amount of the Eddy, Texas 76524-0068 phetamme, and it is rarely, if ever, seen controlled substance" to substances that as a separate entlty. This being the case, are usable by virtue of recognizab~lity Dl: Jnmes L Booker an exceptron for I-methamphetamine and suffic~encyfor normal use. By sim- bas testified in more could he very specific wittiout expectii~g ply introducing the concept of "usable than 1,000 cases in anyone to raise the issue of an applica- quantity" into the guidelines, two fedelerol and state tlon of the principal of separating iso- improvements will be i~mned~ately cour 1s. 111s qllally- mers -- one for harsh penalty, the other noted: first, a term regularly used by the catiorrs mclude a for less or none -- to other drugs. experts who offer opinions regarding the Ph.D in analyfical The Increase of production of claw identity and quantity of controlled snb- chernisl~yfiwnr the destine methamphetamine using stances will he memorialized and given U~~i~wsitj~of ephedrine or pseudoephedrine as the a consistent definition. Second, an lfishi~$gton,ssrrppler~~ented by 18publi- prmcipalprecirrsorhas resulted in a van- immediate division of evidence into the cations in yewreviewed jouwls He ety of types of methamphetamine king categories of dn~gssuitable for use or MWS R tencher of blood almlrol a~ulJrrts, ploduced in coi~tmstto the sihiation a commerce to which the sentencing a fot-@nsrcWoce a~mlyst,and the~rhead decade ago when most of the metham- guidelines equivalency tables can be of fhefimns ~dentifcnlionsection ut phetamine was the ~acen~icmixtun: of d~rectlyapplied and drugs in the form of ?lie Cal~~orninstate labornfnrjy later be isomers, the only form produced from unusable manufacturing intermediates fo~rndednnd directed the l@orning State phenylacetone. There are six fonns of wh~chrequire qoantitatwe analysis and Crime Labmnto~p ephedrine and pseudoephedrine are calculation of the potential yield of available for illegal production, and it IS usable drug, a value to which the "(actu- frequentlytrue that the cooks --and even al)" fomi of the drug will he applied far the princ~paloperators -- ~Cclaiidestme equivalency co~wersion. Kathryn Rcnfroe, B.A.S., laboratories arc unaware of eitlicr the 5 Specify that sentences he deter- Research Assaclate, stereospecific nahne of the chemical mmed only on the baas of the quant~ty Central Texas Analytical Consultants reaction with which they are mannfac- of precursor cheulical actually produced P.O. Bur 68 mring their product, the exact form of in evidence, and not on the basis of the Eddy, Texas 76524-0068 ephedrine they are ming, or thc form of total weight of a mixture containing that methamphetamine they a1-c creating. 111 precsrsor. At the present time, there is the hght of such ignorance it is hard for considerable inconsistency in the calcu- Kathzp~Re~~@oe, a the govenuncnt to prove a conspiracy to lation of equivalency of precursor chem- Research Associate produce a pa~ticularfonn of o~ctham- icals. In many cases both the prosecw at Centrnl Te.tas phelainine, an essential element in the tion and defense produce expert testlmo- Ana@imI Cnr1~111fo11ts sentencing process. Thus, by equating ny in an attempt to cstimatc the amount lrns a BAS degree in all forms of methamphetamine, the gov- of drug which tnlght, under the coiidi- Biology JOIII Enst emment rewards poor investigative per- lions found in clandestme labomtor~es, Terns Baptrst fo~niance.While it is to be expected that be produced from that precursor -- an U~~iwr'si@ns ndlells degrees in medical a competent investigator wdl know the effort wvhlch nivolves conjecture and orrd che~nicnltech~rology. She is a certi- basic relationships shown m Table 2 and speculation on the pan of each of the fied medicnl techaolog~st. and has will apply them to cstablishiug all the expelfs. The niandatory sse of the tables lvorked us n product nrmfl/yst for a la!@? facts of his case, fhat expectation is sel- wherever poss~blcwould gvamntee the phn~~~racenticolrnnr~r~ac~~cmw: dom met, resulting in the (usually post- cons~steiicy for which the guidelines conviction) specious argument by the wcre created R is also important that defendant that the laboratory was being the inappropriate application of "the operated for the production of only elltire weight of the mixti~ieor substance I-~uetliamphelaiiiine.Often cited by such containing a detectable amount of the operators is the article hy SkioncrB that cont~olledsubstance," to precursor

Votce 28 - July/August 2000 - Guidelines la Methamphetanune Nevertheless, it concludes that for practical purposes V THE FEDERAL SENTENCIN of rnanufachure and use, it is unique. Chemists are able to agree with this concept without sacrificing .lh'RS VOR r\lF,THA7vlPIIFXAn scientific rigor as indicated by the Chemical Abstract Service's assignment of a uniquename 1. "Form" IS not a technical term. In the context of this and number to the racemic mixture. discussron and to he consistent with the customaly 18. Dauhelt v. Merrill-Dow Pharmaceuticals, Inc., legal usage, the word is used to denote a particular 113 S.Ct 2786 (1993). isomer or mixture of isomers of methamphetal~ine. 19. Proctor and Gamble Co~p.,Cincinnat~, Ohio USA 2. 21USCA§812(c) Schedule III(a)(3) 20. 2lUSCAgX02(23)(B) 3. Methamnphetamine (actual) was called 21. This use ofthis factor undoubtedly favors the "methamplletamine (pure)" uutil 1995. For defendant. Since the methampheta~nineproduced convemence 111 the remainder of this discussion, only from the precursor is the actual drug, its equivalence the phrase "methamphetamine (actual)" w~llbe used as methamphetamine (actual) would be 4.16 except whem the older adjective issupplied in a kilograms of marijuana per gram of phenyl-2- direct quotation. The reader may at any point propanone. substitute the phase "methan~phetmine(pure)" iu its 22. Trade-named Cydril or levamphetamine place without harm to the substance of the 23. Skumer, H., "Methamphcfamine Synthesis Vla discussion. Hydnodic Acidhd Phospho~usReduction of 4. "The effects are enantioselective: the (+) isomer eohedrine." Forensic Science Internat~onal.48,123- [d-n~ethamphetamine]IS about five times as active as the (-) isomer [I-methamphetanline]." ICE: A NEW DOSAGE FORM OF AN OLD DRUG, Cho, AK, Science, 249, p631, 10 August 1990. 5. 21USCA@12(h)(2)(B) 6. U.S.S.G. $2Dl.l note (A) (1995) 7. Pain, S., "White hot on green," New Scientist, Vol. 156 No 2102 (Supplement), p2-3, October 4,1997. The most influential Texas Lawyers of 8. U.S.S.G. 82Dl.l application note 1 (1995) the 20th centu~yinclude the following 9. U.S.S.G. s2Dl.l applicationnote 11 (1995) TCDLA members or former members: 10. U.S.S.G. s2Dl.l applicationnote 1 (1995) 11. U.S.S.G. 52Dl.l note (B) (1995) Warren Bucnett, Odessa 12. The follow~ngequvalencies have been applied: a One gram of methamphetamine is equivalent to 5 grams of cocaine, 1 glam of heroin, or 1 kilogram Dick DeGuerin, Houston of ma~ijuana. h. One gram of methan~pl~etamine(pure or achlal) 1s Percy Foreman, Houston equivalent to 50 grams of cocaine, 10 g~amsof heroin, or 10 kilograms of marijuana. c. One gram of 1-methamphetamine is equivalent to Gerald Goldstein, San Antonio 0.2 grams of cocaine, 0.04 grams of herom, or 40 grams of marijuana. Richard "Racehorse" Haynes, Houston d. One gram of "Ice" is equivalent to 10 kilograms of marijuana. 13. U.S.S.G. 82D1.1 ApplicationNote 9 (1995) Oliver Heard, Jr., San Antonio 14, U.S.S.G. 92Dl.l note (A) (1995) 15. The Merck Index -An Encyclopedia of Chemicals, Pat Maloney, San Antonio bgs,and Phmnaoeuticals, 10th ed :!Meth~lphetamine," page 850, Merck & Co, NJ,1983. Roy Minton, Austin 16. U.S.S.G. 52D1 1 note C 17. The Decker court acknowledges that the racemic mixtue is a chemically composed of two substances.

F- JulylAugust 2000 - Vorce 29 US. Supreme Court into subsections. That, along with the Rock, Arkansas. Respondent appeared http://supct.law.corneU.edu/supct fact that the next three sentences refer before that jury, invoked his Fifth *** Summaries from website. directly to sentencing, strongly suggests Amendment privilege against self- that the entire first sentence defiues incrimination, and refused to state CASTILLO ef aI. v. UMTGD STATES, crimes. Second, courts have not typical- whether he had the documents. The No. 99-659, Cert. to the 5th Circuit ly or traditionally used fireann types prosecutor then produced an order (179 F.3d 321) Reversed and (such as "machinegun") as sentencing obtained pursuant to18 U.S.C. 5 6003(a) Remanded, 6/5/99; Opinion: Breyer. factors where the use or canying of the directing respondent to respond to the firearm is itself the substantive crimc. subpoena and granting him immunity to Petitioners were ind~ctedfor, among See Jones 1! Uitiled Smles, 526 US. 227, the extent allowed by law. Respondent other things, conspiriug to murder feder- 234. Third, to ask a jury, rather tl~ana produced 13,120 pages of documents al officers. At the time of their trial, 18 judge, to decide whether a defendant and testified that those were all of the U.S.C. 5 924(c)(1) read in relevant part. used or carried a machinegun would respousive docun~entsin his control. "Whoever, during and in relat~onto ally rarely complicate a trial or risk unfair- The Independent Counsel used the doc- crime of violence. , uses or carrres a ness. Cf. uments' contents in an investigation that fireann, shall, in addition to the punish- Almenda~ez-Torrs 1! United Stales, 523 led to this indictment of respondent on ment provided for such crime. ,be sen- US. 224, 234-235. Fourth, the legisla- tax and fraud charges. TheDistrict Conrt tenced to imprisomnent for five years, . tive history favors interpreting $924(c) dismissed the indiclment on the gro~md and if the firearm is[, e.g.,] a machine- as setting forth dements rather than sen- that the Independent Counsel's use of the gun, . to imprisonment for th~rlyyears!' tencing factors. Finally, the length and subpoenaed documents violated 18 The jnry determined that petitioners had severity of an added maudatory seu- U.S.C. 3 6002-which provides for use violated this section, and at sentencing, tence that turns on the presence or and derivative-use immunity-because all the judge found that the firearms includ- absence of a "machinegun" (or any of of the evidence he wonld offer against ed machineguns and imposed the the other listed firearm types) weighs ia respondent at trial derived either directly mandatory 30-year prlson sentence. The fawr of treating such offense-related or indirectly from the testimonial Fifth Circuit affirmed, concluding that words as referring to an element in this aspects of respondent's immunized act statutory words such as "machinegun" context. Such considerations make this a of producing the documents. In vacating create sentencing factors, not elements stronger "separate crime" case than and remanding, the Conrt of Appeals of a separate crime. either Jones or Almendarez-Torres- directed the District Court to detennine Held: Section 924(cl(l) uses cases in which this Court was closely the extent and detail of the the word "machine~un"(and similar divided as to Congress' likely intent. Government's knowledge of respon- words) to state an element of a seaa- dent's financial affairs on the day tb sub- -ravated crime. The statute's WITED STATES a HUBBELL, No. poena issued. language, structure, context, history, aud 99-166, Cert. to D.C. Circuit (167 F.3d If the Government could not demon- other factors helpful in determining its 552) Affirmed, 6/5/00; Opinion: strate with reasonable particularity a objectives lead to th~sconclusion. First, Stevens; Dissenk Rehuquist. prim awareness that the documents while the statute's literal language, taken sought existed and were in respondent's alone, appears neutral, its overall stmc- As part of a plea agreement, rcspon- possession, the indictment was tainted. lure strongly favors the "new cnme" dent promised to pmvide the Acknowledging that be could not satisfy interpretailon. The first part of Independent Counsel investigating mat- the reasonable particularity standard, the §924(c)(l)'s openmg sentence clearly ters relating to the Whitewater Independent Counsel entered into a con- establ~shesthe elements of the basic fed- Development Corporation with informa- ditional plea agreement providing for eral offnlse of usmg or carrying a gun tion relevant to his investigation. dismissal of the indictment unless this during a crnne of violenoc, and Subsequently, the Independent Counsel Court's disposition of the case makes it Congress placed that element and the served respondent with a subpoena call- reasonably likely that respondent's word machinegun m a single sentence, ing for the production of 11 categories of inununity would not pose a siguificaut not broken up with dashos or separated docmuents before a grand jury in Little bar to his prosecution. Because the

Voice 30 - JulyIAugust 2000 - Sign~ficantDecissions Repurt agreement also provides for the entry of respondent's crimmal trial leaves holdpled guilty to a federal offense a guilty plea and a sentence should this open the separate question whether it has comnuttcd in Feh. 1999. He had a prior Court reverse, the case is not moot. already made "derivativeuse" of the tes- DWI conviction froma city court in Oct. Held: The indictment aeainst timonial aspect of that act m obtaining 1988, beyond the 10-yr period before p the indictment and preparing for trial. It couunission of the federal offense. In (a) TheFiflh Amendment protects a per- clearly has. It is apparent frorn the suh- Nm. 1988 he was placed on probation son from being "compellcd in any crim- poena's text that the prosecutor needed for the DWI, but that was revoked, and inal case to ha a wltnes against him- respondent's assistance both to identify he began serving a 90-day sentencc m self." The word "witness" limits the rel- potential sources of mformation and to Sept. 1989, within 10 yrs of the instant evant category of compelled incriminat- produce those sources. It is undeniable federal crime The PSR included the ing communications to those that are that providing a catdog of existing doc- DWI in calculating the sentence, but "testimonial." In addition, a person such uments fitting within any of the I1 Arnold objected because said offense as respondent may be required to pro- broadly worded subpoena categories and sentence pronouncement had duce specific documents containing could provide a prosecutor with a lead to occurred more than 10 yrs before the incrtminatmg assertions of fact or belief incriminating evidence or a link in the federal offense, and thus was excluded because the creation of those documents chain of evidence needed to prosecute. under USSG 8 4AI.2(e)(3). The guide- was not "compelled" within the mean- Indeed, that is what happened here: The line range without the DWI was 18 to 20 ing of the privilege. See Fisher v. Uniled documcnts sought by one grand jury to months; with it the range was 21 to 27 &.&, 425 US. 391. However, the act see if respondent had violated a plea months. The district court assessed the of producing subpoenaed document may agreement led to the rctum of an indict- maximum of 27 months. have a compelled testimonial aspect. ment by another grand jury for offenses pg That act, as well as a custodian's com- apparently u~uelatcdto that agreement. criminal conduct durine the 10 vrs pelled testimony about whether he has The testimonial aspcct of respondent's p- produced everything demanded, may act of prodi~ctionwas the first siep in a of conviction. district court must look certainly commn~~icateinformation chain of evidence leading to this pros -pEE&!Ls about the documents' existence, custody, cution Thus, the Court cannot accept and authenticity. It is also well settled the Government's submission that peThisholding is consis- that compelled testimony communicat- respondent's nmnunity did not preclude tent w~thU.S v. Cai& 10 F.3d 261 (5th ing information that may lead to incrim- its derivative use of the produced docn- Cir. 1993), in which Court hcld that inating evidence is privileged even ifthe ments because its possession of the doe- "[a]djudication of guilt can only occur infolmahon itself is not inculpatory. uments was the fn~itonly of the simple when the court pronounces the defen- (b) Scctlon 6002 is constitutional physical act of production. In addition, dant's gu~lt!' Court rejects government's because the scope of the "use and dedv- the Government misreads Fisher v. pos~tion that sentence is "imposed" ative-use" immunity it provides is coex- United States, 425 US., at 411, and when the term of imprisomnent begins. tensive with the scope of the cnnstitu- ignores [I-e, 465 US. Court also conducts a stahrtory analysis. tional privilege against self-incrimina- 605, in arguing that the conlmunicative USSG g 4A1.2(e) requires the sentenc- tion. Kastiw v. United S/a/er,406 US. aspect of respondent's act of production ing court to count prior sentences 441. When a person is prosecnted for is insufficiently testimonial to support a exceeding 13 months that are within 15 matters related to immunized testimony, privilege claim because the existence yrs of the instant offense. $ 4A1.2(e)(3) the prosecution has an aff~rmatrveduty and possession of ordinary business reqnires counting any other sentence if it to prove that the evidenee it proposes to records is a "foregone conclustw~." was within 10 yrs. Court concludes that usc is derived from a legitimate source Unhke the circumstances UI Fisher, the under 5 4A1.2(~)(2),prior sentences that wholly independent of that testimony. Government haas shown no prior knowl- do not exceed 13 months are counted for Id, at 460. This ensures that the grant of edge of either the existence or the purposes of determining a criminal his- imlnunity leaves the wltness and the whereabouts of the documcnts nltimat ly tory score, hut only if the sentencing Govermnent in substantially the same produced here. In Doe, the Court found court pronounced the tenn of incarcera- posit~onas if the witness hadclaimcd his that the act of producing several broad tion wrthin 10 yrs of the commencement privilege in the grant's absence. The categories of general business rccords of the Instant offense. Because compellcd testimony relevant here is not would involve testin~onialself-incrina- Arnolds's prior DWI should not have to be found in the contents of the docu- tion. been counted, his sentence is vacated ments produced, but is the testimony and case is remanded for resentencing. inherent in the act of producing those Fifth Circuit documents. http:llsm.ca5.nscourB.gov/ U.S.,No. 98-40898. (c) The fact that the Governlent does USA K AENOLD, Nu. 99-30916; WD Dismissal of 8 2255 Petition not mtend to use the act of production in Louisiana; Reversed, 6/6/00 REVERSED. Offense: Cocaine

v JulylAugust 2000 - Voice 31 DMribution. Opinion issued May Held: Because the Petitioner has the prosecution's theory of the case), the 92000. Opinion percuriam. not sl~ownthat the advanced DNA court finds the lie immaterial, since The qnwtion presented is whether the testine methods he claims will now Erdmann testified that the victim was petitioner's failure to timely file his $ exonerated him did not exist when he killed by bhmnt force trauma to thc head 2255 motion is excused by reliance ona fried his initial federal habeas uetltion, and there was overwhehning evidence court order suggesting that the filing he cannot satisfv the standard that tins heating had in fact occurred. was timely. reauired to permit consideration of a Held: The Petitioner's late filing of successive habeas anulication, Court of CriminalAppeals his 8 2255 motion is excused by McGinn was convicted in 1995 of mur- http:llw7m.cca.cnurts.state.tx.us reliance on a conrt order which der. His first federal habeas petition Issues: (1) were trial counsel ineffective auoeared to allow it Patterson fild a was denied in the district court on Feb. for "failing to recognize the valid~tyand timely $ 2255 motion attacking his fed- 23, 1999. He now seeks authorization to importance of an alcoholic blackout eral convictioi~.He shortly after with- file a second habeas pet~tionm order to defense"; and 0) did the prosecution drew the petition so that hc could later take advantage of advances inDNA tesl- violate the Eighth Amendment by spon- refile it after seekmg assistance fiom a ing that have oceurred sin~ehis 1995 soring allegedly perjured testimony by a "writ writer!' Patterson erroneously hd. The court denies the authorization. psychiatrist and medical examiner dur- believed that he would have one year 28 U.S.C. g 2244(h)(2)(B](i) forbids cir- ing the trial. from the time he dismissed his habeas cuit courts to authorize the filing of su Held: Because Texas law strictly petition to re-file. As that day, April 30, ccssive federal habeas petitions unless Jimits the relevance of voluntary 199% approached, he filed a motion in the "factual predicate" for them "could jntoxication to nmst trial issucs. trial the district court seeking anextension of not have been discovered previonsly connsel was not ineffective for failing that "deadline." The court denied the through the exercise of due ddigence." to nnrsue an "alcoholic blackout" motion for extension, but that motion McGinn claimed that he qualifies under defense for cabifd murder." Although implied that the writ would be timely if this provision becans he could not, involuntary mtoxlcation can, a defen- filed by the time mentioned by even using "due diligence," have taken dant cannot claim that his intoxication Patterson. Patterson filed advantage of DNA techuiques which ww involuntary merely because he is an before April 30. were not developed until afker his trial. alcoholic. Because the evldence The FifUl Clrcuit noted that equ~table The court disagrees, pointing out that he Hernandez songht to develop would tolling of the oneyear deadline applica- could have sought an opportunity to per- have been duced to mitigate his punish- ble to 5 2255 actions is available only in form such testing at any time prior to ment because irrelevant to the guilt "rare and exceptional" circumstances. Feb. 23, 1999, hutmajor and, in any phase of his trial, the trial counsel was However, it concluded that Patterson's event, Hernandez's trial eonnsel amply not ineffective for failing to develop it. casc fell within a recogmzcd category of attacked Grigson's testimony with the In addition, Hernandez' proffered testi- equitable-tolling cases which approve testimony of five other experts who mony could not have been intm tolhng when the petitloneriplaintiff asserted that Grigsm Hernandez claims that h~strial attorney detrimentally relies in good faith on a was ineffective for failing to develop court order which unw~ttinglysets a due ADOLFO GIL HERNANDEZ, No. and present an "alcoholic blackout" date outside the limitations period. 99-10446. Dismissal of habeas pefi- defense at his trial. Hernandez claims Here, Patterson credibly churned to have tion AFFIRMED. Offcuse: Capital that there was avalable btt unp~esented relied on the court's order iniplyingthat Murder. Sentence: Death. Opinion ev~dencethat he had a history of alco- the writ would be timely if fited by April issued: May 30, 2000. Opinion by: holic blackouts aud that he was disori- 30, and did in fact file by that dale. DeMoss. had been wrong repeatedly ented when he was picked up one hour Thus, he is elrgihle for equitable tolling. in predicting future dangerousness. aftathemurder. The court observes tllal Hernandez claimed Dr. Ralph voluntary mtoxicahon in Texas cannot IN RE McGINN (TX), No. 00-10367. Erdmann's claim to have inspected the "negate the elnnent of specific intent Request to file successive state Laheas victim's heart and to have found that she required Sectron 8.04 of the Texas Pond application DENIED. Offense: did not die from a heart attack wasa lie, Code provides that in order for the jury Capital Murder. Sentence: Death. because antopsy photos showed no inci- to he iwtrncted on voluntary intaxica- Opinion Issued Jnne I, 2000. Opinion sion on the victim's heart that would tion as a mitigating factor at pnn~shmenf per curian~. havepe~nnttedsucll an inspection. Even the defendant must first prove that the Petitioner, aTexas death row inmate, assuming that Erdmann unequivocally voluntary intoxication rendered him songht leave to file a successwe federal testified to examining the victun's heart "temporardy insane," and Hernandez habeas corpus application to seek autho- and that such a claim was untrue has not done so. [Editor's note: The rization for DNA testing to prove his (Erdmann is notorious for having doc- appl~cat~onof the 8.04(h) instruction to innocence. tored dozens of autopsies in order to fit death sentencing proceedings pmxents

Voice 32 - fuly1August 2000 - Slgn~frcantDec~ssions Report severe constitutional problems hccause Erdmmn testified that the victnn was The statement "I want to feel your the Eighth Amendmneut requires capital killed by blunt force trauma to the head breasts" does not refer to an action sentencingjurors to be permitted to con- and thw was overwhehning evidence encompassed by any of those three cate sider and give effect to any evidence of that this beating had in fact occurred. gories, and as such, does not describe an a defendant's character, background and "ultimate sex act" as defined in 8 crime which might serve as the basis for Court of CriminalAppeals 42.07(6). Judgment is therefore a non-death sentence, auld 8.04(h) http://~w.eca.conrts.state.tx.ns reversed, and case is remanded. appears to crclude consideration of Concurring opinion: Keasler oon- intox~cationwhichdoes nut rise to the OPINION ON APPELLANT'S PDR- curs because he thinks reversal of level of temporary insanity. Although JOHN ROGER LEFEVERS v. State, Appellant'scnnvictionis due to "an over- thrs argument has been repeatedly reject- No. 540-99, from Dallas County; ly strict legislative definition of ed by the Filth Chcult, that's true of Reversed, 6/7/00; Offense: 'obscene' [and] strikes me as 0ntrageoU.S. mauy arguments which have later pre- Harassment; Sentence: (not in opin- I urge the Logislahire to anzend tlus vailed in the Supreme Court. The ion); COA: Affirmed (101//348 - statute to mclude this kind of behavior!' &.04(b) ohjechon should still he urade. Dnllas 1998); Opinion: Johnson, A persuasive example of it can be found joined by nlcCormick, Meyers, DERRICK GRAHAM v. State, No. in Judge Gana's dissenting opmion it1 Kellcr, Price, Holland& Womnck; 1621-99, from Harris County; Driukard v. Johnson, 97 F.3d 75 I.] Concurring Opinion: Kcasler. Revased, 6/8/00; Offense: Capita1 7he basis of Appllant's conviction Murder; Sentence: Life; COA: p was an allegation that he told tlie com- Affirmed (NP - Houston 114tbl 1999): ine the testimonv of Dr. James plainant over the phone, "I waut to feel Opinion: Meyers (unanimous). pyour breasts!' The statute, TPCB 42.07 owine to lack of materiallt& Grigson, makes it an offense if the defendant Appellant participated in a drng-relat- defending himself from a charge of pro- makes an obscene comment over the ed robbery in which three persons were state bias lied ahout the amount of times telephoue. For purposes of thc statute, killed. He was charged as a phlay in a he had found defendants uot to be dm- "obscene" is defmed as "containing a single 3-pamgraph indidlnent alleging gerous. The court finds that eveu if patently offensive description of or a that he commined capital murder by (1) Grigson lied, the lie was not Hernandez solicitation to conunit an ultitnate sex causing the death of Heimar Prado and clain~shis punishment phase proceed- act, including sexual intercourse, mas- Danny Giraldo during the same criminal in@ violated the Eighth Amendmentk turbation, cunnilingus, fellatio, or anilin- transaction; (2) causing the death of requirement of heightcued reliability in gus, or a description of an exmtniy Hnrtado while in the course of robbing capital sentencing proceedtugs because function!' The phrase "ultimate sex act" him; and (3) causing the death of Jesus the State offered false testimony from 1s not defmed. COA held that, although Garcia-Castro while robbmg him. Trial Dr. James Gr~gson,a prosmrtion psy- "I want to feel yaur breasts" did uot court refused to grant Appellant's chiatrist, and Dr. Ralph Erdmann, the describe anultimate sex act as defined in requested severance, instead agreeing meiiical examiner. Hernandez clanned the statute, other statutes recognized with the Stilte that the indictment did major and, in any event, Hernandez's fondling breasts as a sexual act. COA not join two or more offenses within the tnal counsel amply attacked Grigsou's found that the phrase described ail ulti- meauing of TPC $3.04, hut just alleged testimony with tile teslimony of five mate sex act because it was language different theories of committing one other experts who asserted thatGrigson that explicitly described an act that is capital murder. PDR was granted to had becn wrong repeatedly in predicting ncwsarily sexual in nature and was determine whet& the ind~ctmeutonly futurc dangerousness. Hernaudcz clearly offensive to thc complainant. charged one offense. clainled Dr. Ralph Erdmann's claim to Thus, tho evidence was sufiicient. PDR Held: COA crrcdin concludinethat have inspected the victim's heart and to was granted to determine wheth~r the fhc- have fo~mdthat she did uot die from a phrase "I waut to feel your breasts" offense and that 6 3.04 did not np1y heart attack was a lie, bwusc autopsy desoribes an ultimate sex act for that reason. In afirmiug, COA photos showed no iucision on the vic- Held: Tho whrase "I want to feel relied on Hathorn, 84&//101 (CCA tun's heart &at would have permitted your breasts" does not dcscribe an 1993), in which the iudictment alleged such an inspection. Even assuming that ultimate sex aet for numoses of the (1) nmrder in the course of mbhety and Erdmann unequivocally testified to CCA does a statu- burglary; (2) murder for remuneration; examining the victim's heart and the tory aualysis, and examines other state's and (3) murder for hire. Hathom 1s di5 such a claim was untme (Erdmann is statute defining "ultimate sex acts." tiuguishahle because these were alterna- notorious for havmg doctored dwens of (See the footnotes.) In p 42.07, each tive theories of killing one victim. In autopsies ill order tu fit the prosccutio~~'~enumerated act involves genital contact, this cam, there arc multiple murders theory ol'tha wsc), lhc iemuterial, since anal contact, or an excretory functioli. alleged rather thau moltiplo theories of commission. The indictment alleged twc assistance of counsel. Absent a MNT, as Here the defendant was seen nw distinct capital offenses - capital mrda noted in the dissent, the defendant would what looked to the officers as a drug ofHurtado and capital murder of Garcia- have bean unable lo substantiate hisalle- transaction. A few minutes later, the Castro. CCA also says the final para- gation of IAC hecause of an inadequate defmdant talked to one of the parties to graph cannot be reconciled as charging record. Court holds that defend;u~tmust the drug transaction. Officer then the same capital offense as the first two first mdve for adjudication of guilt, he detained the defendant's car until dog pivragraphs. Because COA erred in con- sentenced to penitentiary (offense was a wuld he obtained for a "snifP search. cluding that the indictment alleged only 3g offense), and then move for a new Court holds that because the police saw one offmse, and thai 8 3.04(a) did not tnal. nothing that resembled criminal activity apply for that reasan, judgment is vacat- by the defendant, the officers hadno rea- ed and cause is re~nanded"for further GUZMAN KSTATE, 05-98-02164-CR, sonable suspicion to hold his car for a prwedingsconsistcnt with this opinion!' 5/4/2000. Important case. cahsearch. This is an appeal based on a Batson PDRs Granted challenge. State explained it perempto- GONZALES K STATE, 01-98-01289- 0282-00, BEARD, WILLIAM E; ry challenge in part, because the case CR, 5/25/2000. 06/07/00; A; Dallas; DWI: 005//1883 was the murder of a woman and slate When Texas and sister state have dif- preferred women jurors to men. Slate kreot mles of evidence on an issueof 1. Tbe Conrt of Appeals decided an advanced two other reasons that had privilege ( here priest penitent), it is law important qnwlion of law - whether the nothing to do with gender. Court holds of the state where the conversation trial court erred by admitting into evi- first that the explanation based on the occurred that controls. Here, the defen- dence testimony relating to the results nature of the case was gender based and dam sought religious counseling from of an intoxllyzertest without first requir- therefore violated Batson. Even if this pastor in California whm the law man- mg the state to satisfy the requirements impermissible reason wes only part of dates privilege only if the religious faith of Km- in confiict with this the reason for removing the venireman, in question demands that sue11 conversa- con& decisions in Kelly and Hanman. it nevertheless violates Batson and case tions be kept secret. As religion here mnst he reversed. made no such demand, there was no 0243-00, FREEMAN, RONNIE; privileged conversation. 06/07/00; S @A's #I & SPA'S #2); LEE K STATE, 112-99-00028-CR, Lubbock; Murder: 4/28/2000. -, 06-98-00019- I. Does the aial cowl abuse its daere- An outcry statemenf, to he admissi- CR, 5/24/2000. Important case. tion by disallowing defense eounsel to ble, must he the fmt statement which Court concludes that rcfusing to allow inform vanremembers of faots of the desor~hesthe offense. Hcre, the com- defmse counsel to question a juror or for instant offense and ask how the facts plainant told his baby sitter how he had trial court to propound questions, was would affect t he veninnembers' verdict injured himself. At the hospital, hc told arm of constitutional dimension. at guilUinnocence and punishment? a police officer the detail of the offense. Beeawe harm could not adequateiy be Court holds that first statement was evaluated, court could not conclude 2. Does a question to a prospective jumr nothing more than a mere allusion to a beyond reasonahlo doubt that euor was as to whether tho fact that the victim was possible offcnse and therefore was nut harmless and case was reversed. Court a two-week old child would have any an outcry statement Statement to offi- conelndcd that constitutional error stan- effect on their verdict, whether it he on cer was ontcry and, thus, admissible. dard applied because the consfitutional guilt-innocence or on punishment, con- right to effective assistance of counsel stituie an improper commitment of the GUARDIOLA K STATE, 14-95-01073- includes the right to adequately and juror to a course of reasoning, or an CR, 5/4/2000 (on motion for rebar- effechvely voir dire the jury to identify attempt to dtsoover the juroi's mental ing). unqualified jurors. This includes the processes or the wcrght he or she would On rehearing, court holds to its orig- right to question those already on the givepart~culartestimony? inal opinion ill one respect by holding jury about whom questions of fairness that State may not use a grand jury suh- arise after case has connnenced. COURT OF APPEATS poena in lien of an arrest warrant. To do DONOVAN K STATE, 01-98-00427- so is an ahnse of the grand jury process. GOWN K STATE, 09-99-190-CR, CR, 5/4/2000. Court holds that resulting confession 5/17/2000 Court holds that a defendant may not was attenuated hnillegal conduct and The defendant was convicted of file a ination for new trial affer bung thus, admiss~ble. attempted escape from a penal institu- placed on deferred adjudication. Here, tion while-io prison for a 3(g) offense. after assessment of the deferred, thc 4UTRY K STATE, Ol-98-00667-CR, Ha indichnent alleged two prior first defeudant filed MNT alleging ineffect~ve 5/25/2000. degrcc felony convictions. The offense,

Voice 34 - julylAugusr 2000 - Signihcant Decissions Report going to work; the intent to defraud or normally a state jail felony was punish- Lin Marie Garscc & Associates able as a third degree felony because of harm is what makes the offense criminal one prior wnviction and enbancedagain and those acts that make otherwise to a second degree felony by virtue of innocent conduct criminal should be Section 12.42(a)(3). The defendant alleged with specificity. argued that the felony used to enhance to a second degree felony had to be final GUAJARDO, 13-980-431- before the cummissio~~of the fclony CR, 5/25/2000. used to raise the state jail felony to a Contrary to the Eastlaud Court of third degree felony. The court disagrees; Appeals, here the Court agrea with the while the enhanc~ngfelony must be both collateral estoppel argument whore the final and sequential vrs a vts the primary defendant prevails on a motion to sup- offense, here- attempted escape There press in county court (possessicnof mar- is no statutory language to support the ijuana) and uses that victoryto urge, suc- requirement that it be both final and cessllly, the acgmeut that the state is sequential as to the offense raising the collaterally estopped from relitigating level of punishment to a third degree the legality of a motion to suppress in felony. district court.

P-, P-, 10-95-165-CR 5/18/2000. Contrary to opinions of other courts, scnfimed abwe c., ,,lopser the Court ofAppeals here holds the e> ..., dence factually sufllcient to sustnm of opinln~rSof the appeals coo& conviction for DWI, even with the exis- listed. tcnce of an ahnost flawless video tcst. - - - - Eliitors: Cynthia & Kcjtb Hampton, TAYLOR % STATE. 11-99-0004-CR Itampla~~@swhellnet 5/25/2000. AndmHamud, State sought to impeach defendant ha~mel@co~npassneteom with statemeuts made during plea ncgo- Mlke Wlarlton, tiations to the effect that plea offer was dialltvn@m~bihwrld~et too severe for a "first offense." Statement was offered to impeach defen- dant's testimony about his inuaceace of nvite all comments and con offense. Under Tex.R.Evid. 410, cvl- tivc criticism from our mcm dence was admissihlc.Court considers uud Vuiee wade re. Plcsse e issue self evident that substant~alnghts mail or fa%D' Ann Johnann: were affected. djohnson@t~dl8~com STATE % CXMPBELL, 12-99-00335- +17-4mat07,nr CR, 3/31/2000. ~mmmtstx Defendant, a police ofllcer, was ,..X Editor John Carroll charged w~thabuse of oficial capacity, . 210-829-0734 an offense requires that the illegal con- duct be with the intent to ohtam a bene- fit and harm or defmud another, by tak- SDR's printlog cost is fnndec ing a day on'from work. Yes, people do by the 311diriaZ & Court Training get charged in crimmal court for these Fund and adn~Msbarad by th~ kinds of offenscs in Harris Couuty). Texas Court of Crinlinal Appeals a: Trial court grauted a motion to quash grnnhd hecause the indictment faded to allege how the harm occurred. Court of Appeals agrees.1t holds that there '- nothing inherently criminal about n( Cause No. ___

STATE OF TEXAS5 IN THE COURT 5 VS. 8 COURT DESIGNATION COUNTY, TEXAS

MOTION IN LIMINE NO. - (OTHER PROCEEDINGS)

TO THE HONORADLE IUDGE OF SAID COURT: COMES NOW ***, the Defendant in the above styled and numbered cause, and respectfully requests this l~onorahleCourt to instnict the prosecution not to mention, allude to, or refer to, directly or indirectly, dur- ing any stage of this trial, including but not limited to the voir dire examination, opening statements, and the direct and cross-examination of any wilness, the fact that the Defendant herein is or may have been involved in another legal proceeding arising froin the same facts of this case or the result, orders or judgment result- ing from that case, until such time as a hearing has been conducted out of the hearing of the jury to doter- mine the admissibility of any such testimony. The Defendant further requests that this Court inst~ctthe prosecu~tionto advise the Court prior to eliciting any such testimony in order for the Court to excusc the jury and conduct a bearing outside the presence of the jury, without the necessity of counsel for the Defendant having to object to said testimony and request that the hearing be held outside the presence of the jury. WHEREFORE, PREMISES CONSIDERED, the Defendant respectfi~llyprays that the honorable Cowl will grant this hisher Motion 111Limine No. -.

Respectfully Submitted,

ORDER 01%this the __ day of ,ZOO-, came on to be heard the Defendant's Motion In Limiue No. - (Other Proceedings) and the same is hereby GRANTED. The prosecution is ordered to advise the Court prior to eliciting my testimony that the Defendant herein is or may have been involved ia another lcgal proceeding arising from the same facts as this case or the result, orders or judgment resulting from that case, until such time as a hearing is conducted outside the presence of the jtuy to determine the admissibility of such testimony. SIGNED this __ day of, ZOO-.

JUDGE PRESWING

Voice 36 - JulylAugust - Motion of the Month ----- CDLP aoes- to South Padre island Julv 20 and 21. from Jack Schutz Bring your family and friends down to the beach "A Few Good Men" for fun and sun. "As Good As it Gets" "inherit the Wind If you prefer West Texas. join us in Alpine--August 4 "Clarence Danow" and visit the Davis Mountains. McDonald "Gideon's TrumpeP' (story of Gideon v Wainright) Observatory and the mysterious Marfa Lights. "Comwulsion" ILeooold-Leob murder trial with

End the summer with gumbo, jambalaya and jazz music in New Orleans, September 7 - 8. We've got o hotel across from Horrah's on Canal Street for from Bob Leohey and others only $1 19 o night. "Judgment at Nuremberg"

from Afon Kazdoy '1 am a Fugifwe from a Chain Gong" staning Paul Muni from Mark Bennett 'The Postman Always Rings Twice" starring John Wilke~His life and CrimeZ Winston Schoonover Garfield and Lana Turner "Witness for the Prosecution" starring Charles from Bill Harris Laughton and Tyrone Power Gates of the Alamo BQ&&& from Katherine Drew A Twist at fhe End "in the Nome of the Father (great Brady claim)

from Warren Clark from Randy Wilson - (who practices law in Clarence Darrow for the Defense,lrving Stone between watching movies) Anatomv of a Murder, Robert Travers "12 Angry Men" starring Henry Fondo Fear on Trial. John Henry Faulk 'The VerdicY stoning Paui Newnan and Jack Warden "Primal Fear staring Richard Gere from Tony Vitz "And Justice for All" starring Al Pacino OJ The Lasf Word. Geny Spence 'The inside? starring Al Pacino and Russell Crow "A Time to Kill" starring Mathew McCanahey and from Fred Tatum Sandra Bullock The Great Mouthoiece -about William Fallan "The ChamberustorringGene Hackman Attornev for fhe Damned- about Clarence "Ghost of Mississippi"8farringAlec Baldwin and Darrow James wood Leibowik - about Sarnuei Lelbowitz "AmistadusfarringAnthony Hopkins --about Percy Foreman "The Music Box" starring Jessica Lang "Class Action"starring Gene Hackman from Drck Price "from the Hip" by William Bernhardt "Anatomy of a MemberS'staningJames Stewart Primarv Justice. Blind Justice. Deadly Justice. and Lee Renlick Cruel Justice. Naked Justice from D'Ann Johnson from WAnn Johnson "My Cousin Vinnv MY,William Kunster 'To Kill a Mockingbird" The Rooe. the Chab and the Needle, Marquart "Thin Blue Line" Sorenson

@+9JuiylAugust 2000 - Voice 37 turv nullifications

Juries have refused to sentence people to diesince jury tri- and eight Banknotes, value of 10E each, worth the same sum als began. Medieval juries fveqllently acquitted guilty of 39s."5 Theft of over 40 shillings was a capital offense. defendauts who would otherwise have heen executed. In 1830, over 200 bankers complained that punishing Because the English "Bloody Codes" punished over 200 forgery with deathprevetited conviction of forgers. "Even the offenses with death, juries often spared those wllo would 0th- possibility of the inflictmn of death, prevents the prnsccution, erwise have paid fie ultin~atepenalty. Blackstone referred to convictiorr andpunish~nentof the aiminal and thus endangers nullification in capital cases as "pious perjury," explaining the which it is iutellded to prntect"6 l-he ballkers "this ... does not at all excuse ow common believed an excessively cruel law, being law ... &om the imputation of severity, but unenforceable, failed to discourage crime. rather shongly confesses the oharge."l Even Approximately one iu four death-eligible judges hesitated to invoke the frill wrath of felonies tried between 1805-1810 ended in the law, encouraging juries !a nullify: aequi€lal.l One eighteenth-cenhuy source t I,, tt/id is reported: 'Eying a prisoner af fhe Old Bailey 011 a chatge ofstealing in a dwelling house lo the The acqui/uil(nls u~illgertefolly be found to value offorty shillings, when this uwa capi- d~ieldql Imv mdin the attach mostly to srnfl/i offences n'hich ale ml offense! Lofrl Manrfield advised the jury punishable with deafh: whets Juries do not tofind a gold trinket, fhe ss&ect of the it~dicf- conside,.tlre crime deserving so selws apan- went, to be of less value. The p~osecufor ishrnerrt, the delinqueiif receives no pnrish- e~claimed,with mdrgnafion, "Under for f~ merit at nil If nll we~ecomicfed wlro wen? shilli~igs,my Lozd! TYI,; the fasl~ron,alone, realll,grriIfy oftlrese snrallaffences. tlre nu~rr- cost nie ?nore ihal~dorrble the arm " Lod ber of victims to tlte severify oftheLnw would Marrsfied calmly absened, "Godforbid, ge~r- tlernarr, we should hang o man for fashion's sake!" Tltrs IS a highly significant episodefor LordMa~tsfield Because amelioration was colnmon 111 then cases by under- was not a lenientjudge. 2 valuing properly, aitd because the ~najorityof capital offeusm during the eighteenth century were property cnlnes? the 25% The Bloody Codes lasted until the mid 18M)'s, by which acquittal rate no doubt understates ~urymistance to the time jury opposit~onhad limited the death-penally to the most Bloody Codes. violent criminals. Even those the Bloody Codes were intend- Early American law often presoribed death for minor offens- ed to protect con~plainedthat capital laws were futile, because es. In Souflr Cafolim?a Bennslflo, a jury found Bennett stole juries refused to convict 3 An 1819 petition to Parliament goods "worth less ... than twelve pence," although the goods complained that unless the Bloody Codes were repealed: were clearly more valuable. Bennett was acquitted of grand larceny and convicted of petty larceny, preventing his hang- [T/k inciease of crimes mrst be pmgressi~w~because, ing. Jury resistance to capital punishment was so great that m sltung as Ne flze oh/igaliolrs upon all good s~~bjectslo fls~isl 1820 Justice Story began "death-qualifying"juries, excusing llze arhni~~istrationofjustice, they ale o~qmve~edby le~der- Quakers fm~na capital case, fearing they would not convict nersfor lrfe - a aendertms n41icl1,o~iginating in the mildp~s- due to their religious beliefs. " cepfs of our rei~gion,is ad~~ancmng,and will continue to Bccause mandatory death schemes led to jufy nullifictttion, adva~rce.as there docfr$~esbecome vtore deeply iner~lcated many states created degrees of homicide. Only first degree inro the rnirrds of the conrr~zuriit),4 murdcr was a capital cri~ne.'~Further, several states restrict- ed the scope of capital punishment. South Carolina, which Althoughit is usually difficolt to know in which cases juries 165 caoital crinies in 1813. had onlv twenlv-two on the books null~tied,this petition referenced two unamb~guouscases.In by 1850. Michigan, in 1845, became the first state to abolish one, a jury found a 10s note to be woah 39 sl~illings;in anoth- capital punishment. '3 er, the jury "fonnd two bills of exchange, value of 10f each, Degrees of murder created a new problem. juries

Voice 38 - ]uly/August 2000 - Jury Nulification in Capital Cases were convicting murderers of lesser offenses, so as to spare sysienr-a link without whzh the determinofion ofpunishme~rt their lives. To remedy this, Tennessee, in 1837, gave cap could /tnni/y ~ejlect"the edmgstandards of "decency thaf taljurots discretion m sentencing; other states followed suit mark thep~og~wssof a matw ingsacicfy. 24 Ihs discretion became intcgral to thc jury's role in capital cases.14 The federal government gave capital jurors sentenc- The Court did not find jury discretion so subject to abuse ing dkcretion in 1897. 15 as to deny a defendant due pmcess. Iustead, the Courl main- Some jnrors reject capital punishment under any circum- tained "States are entitled to assume that jurors confronted stances. These ju~orswould make the death penalty unwork- with this tmly awesome responsibility of decreeing deslh for able, unless courts remove all those with qualms about the a fcllow human will act with due regard for the consequences death penalty from the jury. Ergo, courts began "death-qnali- of their dec1sion!"5 The Court did not consider whether other fying" juries. How great an objection is reqnired for exclu- wnstitutional guarantees may have been violaled. sion, and what effect death-qnalificat~onhas on jury verdicts, Shohortly after Mac,certiorari was granted to three remain debatable questions. defendants to determine whether ihe death penalty was Jury independence affects cvery aspect of capital punish- invoked so arhitradly as to he cruel and unusual under the ment. Every death penalty scheme in America is based on Eighth Amendment. These cases were grouped together under controlling jury d~scretionto remedy the "athttrariness" with the name fur war^ IL Gempig26 Tho Fu,.mnnCourt held cap- which capital sentences were meted ont prior to FIIIFI~~IJii ital punishme~uwas bcing applied so arbitrarily and freakish- Gm&J6 But tho Court never foundju~pdiscrefion respon- ly applied as to be unconstitotional. &mm struck down sible for the unequal application of tlw: deathpc~~alty.Studii every capital punishment scheme in America. States scram- show that while juries exhib11 some bias or arbitrariness in bled to draft revised death penalty schemes ta comply with the sentencing, prosecutors bear the brunt of the responsibility. l7 requirements the &mza Court had loosely identified. July select~onprocedures in capital cases are untmstwor- The was made d~fficultbecause there was no majority thy. Death-qualified juries appear to be inherently biased holding in-. All nine Justices wrote separate opinions towards con~iction.~~Deatll-qual~fication depr~ves defen- to the 5-4 decision. Justices Brennan and Manhall concludcd dants of a jury selected from a fair cross-section of the mm- the deathpenalty was cmel andunusualperse. Jnstlces White, munity. Minorities, women and l~beralsare excluded at a Stewart and Douglas agreed that then-current capital punish- higher ratc than white males or c011servatives.'9 Yet eliminat- ment schemes were unconstitutiond, hut were unwilling to ing death-quslification could mean aholisl~ingcap~tal pm~ish- coinmit as to whether other schemes could comply with con- ment. stitulim~alreqnircments. Justices Blackmun, Powell, Burger and Rehnquist, believing the death at issue were In Pemv v. Lwmurh, 20 the Supreme Coua held theTms sentences death penalty system unconstitutionally failed to allow jurors wnstitutio~~al.voted to aKin. to act on mnigatmg evidence of a defendant's mental retarda- Although five Justicm agreed death sentences were hand- tion. Thc l'caas Cu~~ctof Cri~ninalAppcols invoked jury IIIII- ed out arbitrarily, they drd not blame juries. Justice White lllicstion to ranalv the dcticicncicr of thc'lcxas canitsl sell- believed the scarcity of death sentences was not the result of tencing system. How tins reflects on jury nullification in other juries acting irrationally, hnt that jury reluctance to impose cases is a question netther Court has yet addressed. death was a consequence of waning support for the death peaalty. While he agreed "there is no meaningful bas~sfor Furman and its Progeny: distinguishing the few cases in which [capital punishmeut] is Resolving the Disparities in Capital Sentcrreing ~mposedfrom the many cases in which it is not,"z7 he Thc constitutionality of jury sentencing dmcretion III capi- emphasized: tal cases was examined by the Supreme Court in McGautha 1, CaI?i~rnin.~~The appellants argued "leav[mg] tho jury eom- [Tlhe pohcy of vestin~gsentemhg authorigir~,p,ln~nrily m juries - a ~Iecaianfur@y mofi'(lfed by the desire to mitigate pletely at largc to impose 01 withhold the death penalty as it sees fit is fundamentally lawless and therefore [deprives] a the harshness of the law and m 61 ing courmtmi/y judgment to bear or? the sevtence as mN os gwilt or innaceme - has so penon of his life without dne process of law."2z They were not claimng capital punishment was unconstitutional per se, eJecfive& acItie,wd its ams that cap?fal p~inishma~lniihin hut that they had heen &pr~vcdof due pmcess because the~r the eonjr~esof the stnhtfesnow before us hasfor allpractical sentencing juries had been given unbridled discretion and pruposes I un its corrrse 28 werc thus "fundamentally lawless." The Court disagreed, noting "in recent years, challenges to Justice Brennan remarked "[w]hcn the punishn~entof death standardless jury sentencing haw been presented to many is milictcd m a hivial nuniber of cases ... ~t smacks of litlle state and Federal appellate cou&. No court has Idd the chal- Inore than a lottery~y$tem."~9Brennan, l~keJnstlce Marshall, lengc good .. "23 The Court believed jurics could fairly makc believed the death penalty could never be constituticd. the sensitive judgnlents involved in capital seniencmg: Acco~dingly,neither Brennannor Marshall discussed tho Issue of randomness or arbitrariness of sentencing at length. One of the rnost impa~tantfi~rctiorrsany juty call pe$ornt Instice Stewact con~paredreceiving a death sentence with being struck by lightning, and descfibed the appellants as inaafing [R capitalsenterrring dececrsion] is to 1na1nfainn link between confemporar)~cornmrr~~ity i.alaes and the penal IuIylAugu~t2000 - Voice 39 "among a Eapriciously selected handful upon whom the deafh PmfiI! v Florida38 wnsidered the revised Florida statutes. penalty has been imposed,'"Q hut did not claim juries were Florida juries only make an advisory opinion as to responsible for this capriciousness. He indicated the problems whether a defendant should be sentenced to live or die. The were systemio, recognizii that police, prosecutorsand judges trial judge may override the jury's recommendation Although shared responsibility for capital sentencing disparities. Only in the Court noted that 'Tury sentencing has been considered Jnstice Douglas placed any blame on the jury, criticizing the desirable in capital cases in order to maintain a link between "discretionary statutes" which were "pregnant with diswimi- contemporary community values and the Penal system," in nation."-" the Court stated: Georgia was among the first states to pass a revised death penalty scheme32. Georgia addressed the problems identified [IYe have] never suggesledthatjury senfencmg is co~rsliiu- in &in several ways. First, ~cor~ianarmwedthe class tionally required. And it would appear ihar judicial sentene- of 'dcath-eliriblc'- defendants.. rc~uirine- --iuries to find onc or ing should lead, fanything, to even grealer consistency in more statutory "aggravating circumstances" before death prmishment, since a bidjudge is more experienced in sen- could be imposed. Next, capital defendants were guaranteed tencingthan ajury. andlherefore is belfer able to impose sen- individualized sentencing by inshucting juries to consider any tences similar to lhose imposed in analogous cases 4O "mitigating circumstaoces" presented. Finally, the Georgia Supreme Court was to perform "proportionality reviews" of These assnmptions are rebutted by later studies which show capital sentences to ensure they were not the result of prejn- greater racial disparity in capital sentenning decisions made dice or arbiwariness, and were proportionate tothe penaltics in by judges than those made by jurorsf' similar ~zws.33 As in Georgia, Florida required the sentencing authority to This new law, along with those of Texas, North Carolina, consider aggravating and mitigating faet0rs.~2Because sen- Louisiana and Florida, was wnsidered by the United SZates tencing discretion was guided by a statutory framework, the Supreme Court in a series of decisions which form the foun- Florida law passed muster under &&mu. The Court held the dation of American capital punishment jurisprudence. The jury need decide the sentence, so long as the sentencing first such me, Gree~v. Garvia, was the appeal of Troy authority's discretion is exercised along rational, statutorily Gregg, who had been sentenced to die for armed robbery and defined guidelines. murder. Jurek Y. Texas43 examined the Texas scheme. In Texas, The Court considered a question left unanswered in Furman: capital murder wsr a distinct offense; the jury bad to find one whether capital punishment was cruel and unusual per se. of a limited number of statutory aggravating circumstances to Denying that "standards of decency had evolved to the point elevate a homicide to capital murder. If the aggravating cir- where capital punishment no longer could ba tolerated," the cumstances were not found the greatest offense available was *Court believed "a large proportion ofAmerican society murder, a non-capital offense. The same sorts of aggravating continues to regard [capital punishment] as an appropriate and factors wnsidered in sentencing in Georgia and Florida were necessary criminal sanction!" The Court pointed to revised wnsidered in the guiwinnocence stsge in Texas. death penalty laws in over thirty-five states following At punishment, Texas jurors were asked a set of factual Furman, and found capital punishment served the purposes of "special issues" reflecting on the culpability of the accused. retribution and detenence.35 Having decided capital punish* The speclal issues, at the time of Jurek's trial, required the jury ment was not unconstitutional per se, the Court went on to to answer: consider the new Georgla statutes. (1) whether the conduct of the defendant that caused the death The Court held the @@gia death penalty complkd with of the deceased was committed deliberatelv and with the rea- aby adequately guiding the discretion of the jury by sonable expectation that the death of the deceased or another requiring 1) a statutory aggravating circumslance before the would result; defendant could be considered "death eligible," and 2) consid- (2) whether there is a probability that the defendant would eration of any relevant mitigating circumstances in sentene- commit criminal acts of violence that would constitute a con- ing.36 Because adequately defined guidelines provided a ratio- tinuing threat to sooiety; and nal framewark within which to make the sentencing decision, (3) ifraised by the evidence, whether the conduct oftbe defen- fhe Court found no violation of Furman m the Georgia capi- dant in killing the deceased was unreasonable in respmse to tal punishment law. "Guided discretion" became the bench- the provocation, if any, by the deceased. mark for capital punishment law: If the jury unanimously voted 'yes' to the special issues, pV]here dismlion is aflonieda sentencing body an a mat- the judge was required to sentence the defendant to death. If ter so grave as lhe determination of whether a human life they didnot, the judge was requited to sentence the defendant should 68 taken or spored. lhal discrelion must be suitabb to life in prison. directedandlimitedso as lo minimize the risk ofwhally orbi- TCX~law represents an exception to the "guided discre- rrav or caprciom action.37 tlon" principle. Because the "special issues" require a jury to

Voice 40 - Jrrly/August 2000 -jury Nulificatio~rin Capital Cases find facts, the jury is glven little discretion. However, the A pair of stud~esof Georgia capital sentencing, conducted Court held Texas complied with Emmze by requiring the by Prof. David C. Baldus and others, dispute the pemptian assessment of rmtigating evidence in the sentencing Stage that junes are responsible for racial disparities in capital sen- (tluough the future dangerousness special issue), while uar- teneing.n These studies were at Issue in the 1987 Supreme rowing the class of death-eligible defendants at guiltlinno- Court case McC[eskevS4. McCleskey, a black man, ~ence.~~The Court counted on the Texas Court of Criminal was sentenced to die for killing a white Georgia police offtcer Appeals to give the special issues an adequately bmad inter- during an armedrohbery? McCleskey argued that the Baldus pretation to allow the jury to consider any miti- studies proved juries were disproportionaiely likely to gatingevidence raised, including the defendant's pprir crimi- sentence him to die, thus denying him equal pmkection of the nal record, age, and mental or emotional stateP5 law. 56 In two mnaining con~panioncases to Gr@g,the Cmut The Baldus studies show the most important factw in struck down capital punishment schemes because instead of whether a capital defendant lives or dies is the victim's race. "narrowing" and "channeling" thc jury's discretion, they elim- Slaym of whitesare 4.3 times as likely to receive a death sen- inated it entirely. h1 Woodson v. Nolth Cumlina?"he Court tence as slayers of blacks.57 Blacks who kill whites are even strock down a statute under which any defendant eouvicted of more likely to be senteaced to die than whites wlro kill first degree murder was automafically sentenced to die. This whitess8. McCleskey's argument dl& this disparity violates scheme failed to give the defendant "particularized considera- the Constitution was never addressed, because he could not tion of relevant aspects of [his] character and recard show the Court that racial considerations contributed to his Thc Court held "the hndanental respect far humanity under- sentenceJ9 lyiug the Eighth Amendmcnt requires consideration of the While juries have somc culpqbility in the racially skewed character and rccord of the ind~vidualoffender and tho cir- manner in which the death penalty is applied, this d~sparityis cumstances of the panicnlar offense ..!'48 The Court rccog- primarily due to prosccutorial discretion Whereas juries are nized that mandatory d&th penalties functionas an open invi- 40% more likely to sentence the k~llerof a white to die than tahon for juries to nullify, if they believe dcath is not appm- the killer of a black, prosecutors are 200% more likely to seek priate in the case before them 49 the death sentenceagainstthe killer of a white.@ In Rob& v. Louisiana 50 the Court fonnd "the constitu- Defendants have little leeway to amckpmsecutodal charg- tional vice of a mandatory death scntence statute - lack of ifig decisions. Prosecutom may charge as they see fit absent focus on the circumstances of the particular offense and the purposeful discriminatwn.fil Normally, this protects the inde- characte~and propensities of the offet~der"~'was present. If pendence of prosecntors. However, the standards appropriate the jury convicted of murder, death was the only sentence. To in other cases are not always appropriate in capital cases. To mediate this harsh n~le,Louisiana requircd jurios to be date the Supreme Coml has not been willing to monitor the ~nstnrctedon lesser ineluded offeoses, n~lrelhevor nof such discretionary decislon most responsible for racial disparit~es znsrruclions netejitsfiJkd bj' evidence. in capital cases: the pmecutol's charging decision. Nor have The Court detern~inedLouisiana was inv~tingjurics to nnl- they addressed discrimi~~atianfrom the bencl~.@zWhile the iify and "choose a Lesser offense whenever they feel the death Court has 'enamwedand channeled" the discretion of judes, penalty is imppropriate!'" The only way to spare the &fen- state ofiiciRis may shll act as arbitrarily as ever. The d~lemrna dani's life was through jury nullitication, convicting on a less- of persistent racial bias in the dcath penalty will remain er offense whatever the facts. Yet jurors werc sworn not lo do iatraetahl~so long as state officials retain unlim~teddiscretion this durmg i~oirdite.Louisiana was attempting to have it both to choose which defendan% face a risk of death, and ill some ways. states, whlch ones will actually die. The Louisiana jury received no guidance as to when other considerations came above their oath. Lomsiana juries were The Dexth-Qualified Jury left with thesame degree of dwretion found objectionable in Racial bias in cap~talsentencing may be exacerbated by m,and were expeotcd to exercise it through ~mlhfica- jury selection procedures utikpe to capital cases. In elminat- lion. This required tho jury's exercise of its powers to be mg jurors with qualms about the dealh penalty, minorities and entirely ungnided, and therefore this statute faded to comply women are removed at a much higher rate than are white with the requirements of w. males.@ The resultant jiny is not representative of the com- handits companion cailses wen: based on the assump- munlty, and may be seriously biased indeciding both gmlt and tion that jury decision-mmkmg was responsible for arbitrau- punishn~ent.~~ ness and randomness in capilal sentencing, and that control- Death-qualification began as a means of controllingjury ling jury discdon would resolve the constitutional infumi- indcpendence.65 In FYlthetsuoo~~a Illinois,66 thc Court held a ties recognized in -. Thts assumption was never made state could not disqualify pntential jurors merely because they by a majority of the F- Court, and a not supported hy "might hesitate to return a verdict inilictmg [dcath]!'" While research. A good part of what troubled the CourI in &mm the Court saw no problem with d~gqnalifymgjurors who was the cxisteuce of racial disparities in capifal sentencing. would refuse to impose death, or whose verdicts would he affected by the punishment involved, they heldremoving any- punishment unless those views would prevent or substantially one with reservations about capital punishmmt denied the lmpalr the performance of hi dutics as a juror in accordance defendant his right to bave his pmishment decided by the with his instructions and his oath."J2 The language concem- "conscience of the community." " ing "substantial impairment" was an expansion of IYither~uoon,to be developed further in Wainwt izht FYitt73 Just as ve~eni~.erner~canltot b8 ealudedfol came on the The Witt Court acknowledged that the task of capital grurrnd that they hold such vrmvs. so too the), cannot be iutics changed foIlowing and its progeny. The Court ed~rdedfor.cause simpb because the), indicate that there fried to harmonize A& and JYlthersuoon,noting the Texas aresome Mnds ofcasa in illitch they norrid refuse to zenrtn- laws at issue in Arlanrs reqnired jurors not to express the- mend capitalpursrshnten ... The rnost that can be demand- conscience of the community, hut to answer fact questmns. ed of a ~wziren~anin this legad is llrnf he be willing to con- Thecommunity conscience bad already been expressed, the sider ail of tl~e~~e~raltiespruvidedby state iun: a~ndthat he rrot Court held, by the Texas legislature." be bre~~acablycorr~milted, befo,~ the trial has begun, to vote Although the Court held mandatory death penalties uneon- against tlte pemitJ' of death regardless of the facts and cir- stihltiond, the @,&f Court was willing to exclude ally juror curnstnnces that might emetze iti the corr~seof fheproced who may refuse to give the fatal answer, if the factual answers ings.69 to the setutory questions diitsted an unjustified capital sen- tence. The Court d~dnot address how this differed hln the IYifhe~suoonwas decided fonr years before In maudatory death penaltics disapproved of in &Q&QLI and 1980, due to the mduced discrelion given juries under &egg, &&c&. Although inTexas a sinaller categoly of cases qual- prosecutors were given wider berth to eliminate jurors with ified as capital, if the case qualified the defendant was sen- conscientious scruples about cap~talpunishment. In a tenced to die - unless the jury nullified. Under m,anyone Terns.7° the Court held 'lurors whose only fault was to take who would null~fywas disqualified. their responsibilities with special seriousness or to acknowl- The J&/ Court described the holding in IYithersuoon - edge honcstly that they mght or might not be affected" by try- which had been the leadmg capital jury selection case for sev- ing a capital case were not "so irrevocably opposed to capital enteen years - as "limited." The & "substa~ltialimpalr- punishment as to frustrate tbe State's legitimate efforts to ment" test becat~~cthe new star~dardfor juror excl~rsion.75 In administer its constitutionally valid death-penalty scheme."" deciding fact quest~ons,a juror must not be "substantially A juror was not disqualified "based on his views about capital impaired" by the specter of death. Whlle a juror may wagh

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Voice 42 - JulyIAugust 2000 - jury Nulificatron in Capital Cases capitalcases with exceptional caution and gravity, he must not as jumrs in a particular case, may be excluded from jury ser- be materially influenced by the punishment involved. vice without contravening any of the basic objectives of the Death-qualified juries behave markedly differently than other fair-cross-section requirement!'8o The Court was not con- juries. Although the W~therswonCourt stated '#It is, of course, cerned that illis contradicts their previous cases, such as settled that a Statc may not cntrust the determination of wbether BRNardv.: a man IS innocent or guilty to a tribunal 'organized to convict1,"76 sh~diesshow deatb-qualified juries are less than impartial, and [I]/ is not enough fo say that women when sitting as jmw may be "organized to convict!' Professors Michael Finch and neither act nor tend to acf as a class. Men likewise do not act Mark Ferraro, after surveying the available research on death as a class ... Yetaflavor; a distinct quali#yis lost iferther qualifiedjuries, concluded: sex is ercluded. The erclusion of one may make thejuqr less representative of the commurritl, than wo~ddbe @lieifan eco- In the seventeen yeam following Jt?therspoo~~.death nomic or racialgroup was excluded. qual@cniion has heen OJle oflhe most sfudied subjecs m Yle a! ea of sociologicaljurisprudence. The product is more than a A "distinct quality" is also lost when alI those with consci- dozen reported i~rvestigalionswhich, in the ove~u~heltnirigCOII- entious scn~plesabout capital punishment are excluded from sensus of commentnto~s, have confirmed three empirronl jury duty. A jury stricken of those who object to the death hypotheses: (I) jurors ercluded because oftheir mahilify to penalty is less representative than if those excluded were seat- impose $he death pe~taliyUIE mom utiitUdiuzi~disposedto favor ed. Couscieniious objectors can be expected to act, as a Class, the accused tl~anave ~IOJI-acludedjtfms; (2) ercluded jm'flrs differently from those empaneled. That ihey do not form a ale nzox like4 lo be black orfemale tbm nmfsrcluded juro~s; distinct class for other purposes (e.g., voting rights or employ- and (3) excluded juror+ me mor.e likely to actually acquit the ment d~scrimination)is irrelevant as to whether they form a accused than uw1-exclruledjuro1s~7 distinct class in this context Whether their exclusion would prevent a fair frial in a non-capxfal case is inmaterial, yet this In spite of evidence that death-qualified jmes are biased, in is the standard the Court is using. The "distinct quality" lost Lockhart x McCree thc Court announced that even if death-qual- is the possibility for mercy. Depriving the defendant of that ified juries are more wnvict~on-proneand less representatwe, possibility depr~veshim of a jury fairly representative of the the Cot~stitutiondocs not forbid death-qualification. The community on the issue where the co~~scienceof that commu- Court held death-quahfied juries comply with the "fair oross-sec- nity is most urgc~~tlyinvolved - an issue, literally, of 11fc and tion" requirements of 2hl,Io,.~7~ because death. Ifithe~spoo,~-excludablesdo not form a "distinctive group" The Court rejected claxms that death-qualificationbiases the under Taylor. The Cowt only recognized gender, ethnic or racial jury. Instead of addressing the argumenfs concerning exclu- groups as constitutionally protected. "'~Jhersuoo~r-excl~~d-sion, the Court looked to the variety of people who sit on cap- ables,' or for that matter any group defnied solely in terns of ital juries, commenting "[ilf it were true that the Const~tution shared attitudes that rcnder members of the group unable to serve required a certain mix of individual viewpoints on the jury, TCDLA MEMORIALIZES

Charles Baldwh Quin Braekett Jack H. Bryant Phil Burleson C. Anthony Friloux, Jr Emmett Colvin Knox Jones George F. Luquette David A. Nix Don R. Wilson, Jr. George Roland

#+P July/August 2000 - Voice 43 believe a death sentence is inappropriate, they should answer In recent years, no Texas court has given a nullification "no" to one or more of the special issues. They were to nulli- instruction in a lion-capital casc. They have instead hewn to fy the law when thcir moral judgment, in light of any mitigat- the forniula that "[t]he jury is required to take the law from the ing evidence, led them to believe the defendant should court and be bound tl1ereby."~9 One Court ofAppeals upheld be spared. The Court of Criminal Appeals approved a jury a trial court's ~efusalto give a nullification instruction in instruction that: a non-cap~talcase, without addressing penls.Iw Still, Texas' use of jury nullification to salvage an otherwise unconstitu- $~~ottjindthere am any mrtigaling circtrmshmce$, jS01r must tional death penalty shows that Texas juries may, in the most decide how n~rrchneiglrt tlrey deserve and give tl~en~effect serious of cases, responsibly consider the crime, the criminal when you answer fke Special Jssr~es$j$ou n'efeinrine, in con- and the law, and decide whether applying the law wrll result in sideration of this evidence, tlrar a 1$e sentence, rather tlrm a justice being done. If juries can exercise this ovelsight death senterrce, is an ayptwpriate ~~onseto the pm.sonal ~espousiblyin capital cases, there is little justification for not nmnl culpnbi/itJ~of the dqendant. yori are inst~rrcfedto trusting them with it in less sedous prosecutions ansnw nt ieasf one of fhe Specinl Issues rmder wnsideration It is in capiLd cases where mistakes are least forgivable, "a." 93 where the consensus of the co~nmunityis most sorcly needed and most severely tested. Yet it is in capital cascs that our sys- No provision was made as to whlch special Issue shanld he tem is least wrlllng to allow a fair trial before a randomly nullified. The effect of a "no" to anv of the rssues was a sen- selected cross-section of the community empowered to 'p- tcnce of life in pnson. The Court of Criminal Appeals repeat- vent oppressiotl by the government."'" The meaning and edly approved "nullification tnstructions"p4 in order to briug purpose of trial by jury is distorted in every conceivable way Texas death penalty law into conipliance withPm. gS by modem capital punisl~nientlaw. The Texas court developed several requiretnents for nu1l1- Courts have put so much effort into micro-managing capl- fication mstmctions in capital cases. The instructions mnust 1) tal jury decision-making that many constih~tionnlquestions "clearly communicate ... that ev~dencethat has no rational about the death penalty are unanswerable. Althongh courts bemng whatsoever on (the) special issues, or only has a ten- have recognized the d~scretionaryrolo of juries by requiring dency to milltale in favor of ailinnatwe answers, may individuaked senteacing and prohibiting mandatory death- nonetbeless serve as thc basis for answering one or mole of penalty statutes, they have also neutralized community input, the issues 'no: in spite of the juro~s'oaths to answer (the) spe- increased the power of prosecnto?~to death-qualifyjurors,and cial issues honestly, and in accordance with what they believe of judges to "guide and chaunel" jury decision-making. thc ~elevantev~dence shows"; 2) "tell the jurors that they may, Courts have interfered with the role ofthe jury purporled- should they find it appropriate in thar reasoned moral judg- ly because juries have not uniforn~lypunished con~parahle ment, use the defendant's mitigating cv~denceas a reason to offenders, but have not scnhinized the rolcs of judges or pms- answel the first special issue 'no,' eve11 if they do not find that ecutors in capital cases. Those studies which have done so it prevented him from acting deliberately"; and 3) "tell thc have determined the lion's share of the disparities in capital jurors that they canuse mihgating evidence not only toanswer cases are due to those other actors in thc system, with the sin- the future dangerousness question yes,1but also, paradoxical- gle largest proportion being due to disparate charging deci- ly, to answer 11 'no!"% sious by prosecutors. Wh~lethe discretion of jurors is more Iu US. IL Douderht Justice Leventhill wrote that juries and more t~ghtlyguided, narrowed, chamleled and d~rected, need not be instmeted about jury nullification, because they the discretion of prosecutors is ahnost entirely unfettered. were already aware of their powers and instmctions would Politiciar~sand pollsters clainl Americans ovenvhelmmgly encourage nullification in inappropriate casesP7 If this were support capital punishment. If so, there should be little need so, there would be little reason to glve nullifieation instmo to death-qualifyju~ies to prevent nullification in capital cases. lions in capital cases. No Texas court has been bold enough A normal vou di~eshould be stlficient to identlfj- and elimi- to assat that such inst~uct~onsare not necessary to comply nate the fiw death-penalty opponents in the jury pool. It is with-, because Texas jnrors are "already aware" of their telling that no state has shown enough confideuce in public powors. Texas courts have ~nsteadmandated nullification support forthe death-penalty to do away with death-qual~fica- instructions when circrunstances dictated them. tion Perhaps that should tell us something about the depth of By turning to jury nullification to rescue their death penal- pnbl~csupport far capital punishment in the first place. If the ly, the Texas Court of Criminal Appeals i~nplicitlyrecog- state's power to kill people is a legitimate part of the law of the nizedthe right of juries to render independent verdicts ~nother land, it should not require a complicated scries of arcane and cases. Texas coum have denied the right of juries to rendel hyper-technical jn~y-controlprocedures in order to funehon. independent verdicts since 1847.98 However, the constitu- tionality of the Texas death penalty was left to rest on the author ify of Texas jurors to nullify if in thcir "reasoned moral judgment" the death penalty was inappropriate in the case before them

E- JulyIAugust 2000 - Voice 45 Reference: 43. 428 U.S. 262 (1976). 44, Ida1 273-274. 45. -Id. at 272-273. 46. 428 U.S.280 (1976). 2 Iard Campbell. Thc Lmes ofthc Chief JUiw of Ensland, Vd 47. &at 303. 111,477478 (1873). 48. Id at 304 3. . . Leon Raduno~vicz,A Hisorv of Endish Cnmlnal Law and its 49. -Id. al290-293,2983W.302-303. Admmmk@honTronl1750,727-739(1948) 50. 428 U.S. 325 (1976). 4 -Id at 729. 51. Id. at 333. 5. Id 52. kl. at 335. 6 !& at730 53. Baldus, Ubodwonh &Pulwlri, supranote 17,327- 7. Id at 93. 54. 481 U.S. 279 (1987). 8. Colquhoun, AT& on the Polk of lb MetroQPliir23-24(4th 55. Id. at 283. Ed 1797). cited in Id. at%, 56. at 2%-287. 9. Redzioowin, supre oate 3,96. See also ThomasAn&ew Gmnc,, 57. Id; at 287: xeabBat&, ,Wmd~vMh&PulasLi, supm rmfe I I, yadirt Accordinn to Conscience: Puswctiws on the Emliah Crinlinal Tiid 316. 1~1200-18W59-&l(1985). 58. Baldus, Wwdwonh & Pdnski, supnolc 17,328. 10. 3 &car. 514 (1815); see also Lamnrc Fdedman, A Iliston. of 59. ArcCIesk$ qmnore 54,292-293. American Law. 285 (1985). 60. Baldus, WmdKorth & Pulaslri, E~W no& 17, 327: see dso 11. Uniled Sbls v. Camell, 25 F.Cas. 650, 655-656 LC.C.D. R.1. h4ichaeI L. RadaletandGlton L. Pierce, Rore und Plosect~Lorir~IDQmIiiii in 1820); see also Unild Stale v. Wilson elal., 28 KCas. 693 (18301; Logan u. Hon~icideCmm.19 UWAND SOCVREV. 587.613 (1985). UnifedStstes. 144 US. 263.298 (1892). 12. Friedman, supmole 10.281, quoting Edwit R Kcrdy, Hinhxy of tbePennsylvania Stslule Creating Dewas ofMurder, 97U. PA. L. REV. 759 " (1949). M. See Samuel R. Gmss, Delmnl,>i,,g {he Neurrali@ of Den&- 13. Friedman. mpm note 10,282-283. ~~~~~~d Arfa; Jud/cidApprnid o/EltlpinrnlDnm, 8 LAW AND HUM 14. UZim$tmv.Unitedstales, 172 US. 456,460 (1899). BEHAV. 7 (1%): Claudia L. Cowan. William C. Thompson and Phoebe C. 15. See biffiamlk v. Cdifmia, 402 USI83.2W (1971). Ells~'o~th,ntr Eficls of Death-Qu~l~~lmliman Jrtmrs' PrPnirporiIim lo 16. 408 U.S. 238 (1972). Comic1 md on the Qwlinlily a/Deli&mlio~~,8 LAW AND HUM. BBHAV. 53 17. David C. Baldus, Gemgo \Voodw~nh. Char111 A. Pulsski, Jr, (198% Eoual Jwlict and the D@lh Pe~~allv:A Led and Ewirical Analrsjs. 321 65. ~orne~i,strpronotc 11. (1990). 66. Supm note 24. 18. Allhough this queslionwas not mwered by the Suprent= Court in 67. I& a1 513. Lodrhan v. Aiecm, 476 US. 162 (1986), the Corn held the Slate's interest in 68. Idat 513-114.519. the dea.Ihpxdty ovcnodc the &foldads bteyest in an impartial jury. 69. atS22-523, fn21. ), 19. AIichael Finch and hlwk Fcmo, ?hEnlpiricnl Cl~aNet~10 70. 448U.S. 38 (1980). j Dulh Pmli/id Jnries: On Frvllm Erm,in.Iion, 65 NEB. L.RBV. 21,4440 71. Id. at 50-51. (1986); see also Rdrerf FiIrgcrald and Phwbo C. Ellswath, Dm Pmem a 72. Za45. 1 Cdie Con,,& DenlIt Qrurl@n?flo,~nnd Jug- Alrimde, 8 LAW AND HUM. 73. 469U.S.412 (1985). 'j, BENAV. 31, 46-47 (1984h );see slw NancyJ. King, Pmrmn~~icliiosRdew of 74. Id. at 421-422. Jrq Direrimimlion: Menmrin$ fhe Emls of Jumr Race on Jms 75. ~a1418.421-422 Deli&olianr, 92 MICH. L. RBV. 63 (1993).. 20. 492 U.S. 302 (1989). 76. MWIZ~IJW~I,srlpra note 24,521. 21. supranole 15. 7 7. Fioch&Perram,s~rpmnote19,24-25; scealroKeeten u. Garcisan, 22. -Id. at 196. 578 FSqp 1164,1167 (W.D.W.C. 1983). rrv'd.742 F.2d 129 (4th Cir. 1984). Zl Id. at 203. 78. Srlprnnotc 18. 173-184. 24. Withespwn v. Illinois, 391 U.S. 510,519 (1968XqwtingTmp r 79. 419 US. 522 (1975). Dullw, 3% U.S. 86, 101 (1958)). 80. Stlpmnote 18, 174.177. 25. McGaolha, supmnotc 15, 207-208. 81. 329 U.S. 187, 193-194 (1946). 26. Funnan, supranole 16. 82. Supmnote 18, 178. 27. -Id. at313. 83. Spe Joe M. Van Dyke, Jurv Seleaiw Procedures :Our Uncertain 28. -Id. Comruimm to Rc~resenhtiyePanclL152-153 (1477). 29. mat.293. 84. 499U.S. 4W (1991). Somepm~ulorsslilluneraccnsabnrir for 30. Id st 3W-310. sMking juors, awn in lhc faccofBalsotz r K412ltr@, 476 U.6.79 (1996). L- 31. ld at 256-257 Shlart DiWen, Lhda Layd and Ma* Falollah, Avoid Poor Elm;(-Jlrmrr, 32 Amenrao Cwrl L~bemcsUnion, Race and the Death Penal& 7 illc$l~hon%id. P1ULADELPHIAINQUIRER.Apdl I. 1997 at A1 (discussing (1987) Philadelphi. Arsinaa Distdct Attomoy Jad; McMahon's training video for 33. Gmm v Georgra. 428 US. 153,196-198 (1976). 34 Id at 179. 35. Idat179-180,183 36. -Id at 206-207.

Bam~~x,237-239 (1934) 86 Chaya Wenberg-Bmdt, Jury Nlrlifimlron & JW Contrdl Pmcedtyps, 65 NYU L REV. 825,870 (19901 87 Sapra note 20. 88 Uat323-324 (emphasi~inarigmal) 89 Id at324

Voice 46 - JulylAugust 2000 -Jury Nulification in Cag~talCases 91. The Texas legisleturc revised the special issues, effective September 1, 1991, giving jrrios an oppMtuniLy to cxm~isetheir modjudg- ment on sentencing withothothot hsvingtonullify Tbcnew spe~ialimes read: (I) whether then: is apmbabilily htthe dofendantwould mdtcriminal acts ofs,blencc that wouldconntitute n continuing threat Lo society; and (2) whether the defendantachlallyrau3d the death ofthcdcecased m did not actually rause the death of the dcccased but iotended to kill the decenscd m another or anticipzied thata human lire would be taken; and (3) whether, taldng inm ronddemtian all of the cvidcnce, including the cimurn- stmw of the offense, the defendants charaetcr and beckgmund, and the PC- son81 moral culpability of the accused, them is a sulliciint miligating ciccvrn- nmcc or cireurnnances to a;-t that asentence of life imprisonment nthcr than a death sentencebe irnwd. Texas Code of(lrimina1Pmcdun, Chapter 37.M 37.071. 92. Trevino e Stalc.SI5 S.W. 2d 591, fn 11 Cl'ex.CrimApp. 1991).

(1996). listmgcnses. 96. Riav. State. 846 S.W. 2d 310,316-317 vex CdCrimp 1992) 97 Unifed States v Dougheq, 473 F.2d 1113,1135 (D.C Clr. 1973) Clay S. Conrad 98 Ncls v. State, 2 Tex 280 (1847), Sqwes v. State, 45 S W. 147 (Tex.Crirn.App. 1898). 99. Aldridge v. State, 342 S.W.2d 104 (Tex.Crim.App. 1960). Shareholder. Lamson & Looney, RC., Hous1on:firmer Stag INl. Mouton v. Stetc. 923 S.W.Zd219 ~~XAPQ;HOLLS.(14thDist.f Attorney, TCDLA. Thrs article has been e'itractedfmn~MI: CortradS book, 'IJoyNulI~catim: Evolution of a Docft'irre, " Cnmlrna Acadernrc Prms (1998)

* CodeofCri~ntnalProcedurewithcaseannotations * Selections from other codes, statutes, and rules that Penal Code withcaseannotations criminal attorneys need, including: The Cantrolled * Substances Act, Administrative License Revocation, * Original Code of Criminal Procedure Articles, Penal and Concealed Handgun License Cade and Contmlled Substanw Act sections that may control pending cases or offenses conunitted before * Qnick reference tabs and headings and a the 1999 legislativechanges comprehensive index x Rulesof CrlnlinalEvldencewithcase annotations * Helpful charts and tables,includingnew timetables for criminalappeals * NewTexas RulesofAppelIateProcedure

30 Dav Monev Back Guarantee TCDLA WELCOMES NEW MEMBERS

PaulAndanon SmAntonro Margaret T. Hiodman Galvemm .Spansored by StephenTaylor Jonathan M. Bailey Denlon. Sponsored by Henry C Paine Suzanne Hudson Arllngfo,~ J, Rex Barnrtt Fm Wmtb E.G. HUN Hourron - Sponsored by Dave O'Neil Ktoneth H. Berry FamrersBmnch James K. .loho~onD&s April Bodomky Hrllsboro Sponsored by Judh K Manem Jolanda Jones Howton Kenneth Botary Co'pw Christi .Sponsored by ConsfsnecI~edicke Rsymon Jordan Horurm Sean Buckley Hoturon Sponsored by Bdl Habem James M. Kennedy Hourton -Sponsored by David Bires Thomas J. Burbmk Beaunront .Sponsored byfanes Makm Kenneth LLvi How(on Steve Burgess Denton .Sponsored by Randy Brooks Peter M. Lopez Siveenualer .Sponsored by John S. Young Yolands Gutierrez Burns Corpus Chris# Jamw Lucas ElPm Bobby H. Csldwrll B~llnlre Jesus fifaelas Hourrm .Sponsored by Lee Wilson Pelipc 0. Celzada FmWarfh .Sponsored by Rila Utf Andrw Medrano Awlin 'Spayed by Tmvis Williamson Raul S. Cmh Sari A~mnio- Sponsored by Allen C. Isbell Chsrlrs G. Morton, Jr Buii6$. Sponsored by Jamess W. Vdberding Richard Canlu SonAnro,liomSponsored by AllenC. Isbell Marsha ~orksodBwvntont i.,Sponsored by Cynthia Hujar Om Carol Ann Carson Dreafw Miehacl P. O'Brien Corpur Chrhli. Sponsored by Don Cadwight Les D. Cssridy Corpur Clriisli. Sponsored by Thomap F Greenwell Anthony C. Odiorne Wicliila Falls. Linds S. Cbrlrtophcr Hawton Jose Edurrda Pcaa Lamdo Anlonio Corlez ElPoso .Sponsored by Thorns Hrady Evan E. PicrccJoner SanAn& - Sljonsored by Weldan Holcornb Patricia G. Deahn Portld Sponsored by Cindy Buckner Brenda Rhea RoundRock Julie Dourrt Dollm - Sponsored by Lira Exwn Marc Rosalw El Pmo - Sponsored by Joe E;dd Boaz Brtndn DuShsar Ahin - Sponsored by EliraVasqoez Luis V. Saenz Bmwnsville W. Deal Pair Sat, Anronio .Sponsored by Gerald A Rogen Lee Sslas Plano .Sponsored by Tony Vitz Pamela D. FosterHomr Sponsored by RobeaA Jones Hector P. Smchtz Hourtoa Jack W. Frieze Port Ararmu Scott Scgall ElParo. Sponsored by Michael R. Gibon Debra Gsrris Conroe Sponsored by Gllbert G. Garcia Edusrdo Serna C~ytolCiiy Joseph G. Gam Dalim Richard A. Strieber San Anlonio Sponsored by Ray Taylor Gina I, Giblia Howlm. Sponsored by Betty Blackmll William E. Trantbsrn Dentori Kenneth M. Gibson AwIhz .Sponsored by Belly Blaokdl Ssrn'lbrner Awtln Juan E. Gonzslez Edinburg Sponsored byDavid R Gorena Alex R Vellman Awrin Mike Gordon Co'pw Chrrrli Sponsored by Constance Luedicke Ed Walah RormdRock Victor Gunjardo Copw Clwisfi Sponsored by Cecd Stareher Epi Ysaui Corpus Christi Chris Harrison Ausm Lioda B. Zcman BpNon John R. Healh, Jr. Geo@erown - Sponoored by John R Heath

Voice 48 - july/August 2000 - New Members Lrst Making thp Case for Life IV September 15-17,2000 Westin dalleria & Oaks, Houston, Texas

Making the Case for Life 1V is an annual NACDL CLE program that focuses on the investigation, dwelop~nent,and presentation of penally phase mitigat~onevidence in caprtal cases, panreularly in such areas as mental illness, physical and psychological hawua, substance abuse, and teaming disabilities and mental retardation Faculty will also address interviewing sk~lls,docuuicnt $athering, plea negotiations, viclim impact considerations, jury selection, and other issues A s~gnificantportion of thc progran~ will be iwo-tiercd to allow both the more expe~~encedcap~tal defense counsel and the newcomers in the field to recave appropr~atetraining. Faculty members include noted capital dcfcnse practitroners Stephat Bright, Bryan Stevenson, Phil W~schkae~nper,Ibben Mom, Scharlctte Holdman, Richard Burr, M Cristina Gutierrcz, Natman Schaye, Denise LeBoeuf, James Boren, and N~ckTreuticosta.

Fer a bmchure and regismtien ~nfornwtion,ploasc contact the NACDL Dcath Penalty RmumC Collwel, Bnya Greeue, at [email protected] or 404-688-1202 after JUNE 1,2000.

uty/mmt 2000 - Voice 4 ...... lNew Member Appbcat~on I !BRCII~W~~~phcation Some of the I hate wl~cthercertificate is desired Y N I !~r.- Ms.- Mrs.- I !~ame I best legal !~awFirm - !~ailing~ddress I I !city State ZIP !~elepl~one Fax I I minds... !E-mail address !coull,y I I ... in the state already belong to the Texas Criminal !~arCard Number I !~arCard Date: Month Year Defense Lawyers Association. We believe we have I of Birth: now the best Criniminal Defense Bar in the United ate I Y re you curently a member of NACDL? N I States. We maintain that level of excellence by contin- f~leasecheck correct category: I iRegular nmnber licensed to practice: uously seeking out new n~inds, new energies. I i l 2 years or less, new member of TCDLA - $75 Therefore, we want YOU ... if your legal and personal I l mon: than two years - $150 i I philosophies are compatible with our putposes and H Student - $20 .I I objectives: j I Volnntary sustaining - $300 I to provide an appropriate state organization representing those i l Sustaining $200 l Atlilrate - $50 ! lawyers who an actively ellgaged in the defense of criminal I- I I Public DefenG $50 cases. I f H Members in the firm of a slrstalnlng or d~attcr~mmber - $50 i to protect and and insure by rule of law those individnal rights I guaranteed by the Texas and Federal Constitntions in criminal icertified Criminal Law Specialist Y N ! cases. ! I I to 1,esist proposed legislation or rules w11ich would curtail such ,Have you ever been disbarred or disciplined by any bar assa- i rights and to promote sound alternatives. fciation, or are you the subject of disciplinaly action now i to promote educational activities to i~iiprovethe skills and ipending? Y N I knowledge of lawyers engaged in the dcfeose of criminal cases. I I to improve the judicial system and to wge the selection atid iDate Signihwe af Applicant I I I appouitmeot to the bench of well-qnalified and experienced iI hereby apply for ~nembersbipin the Texas Criminal Defense i lawyers. iLawyem Association and enclose $___ as my annual to improve the col-reclional system and to seek more effective i imembership dnes for the year -. I habilitation opportaiiities for those convicted of crimes. iOf the dues amount, $36 ($19 if a student member) is for an i - to promote constant improvement in the administration ofjus- jannual snhscription to the Voice for the Defensc and, $39 of i tice. iregular dues is for TCDLA lobbying. I ENDORSEMENT I ADVANTAGES FOR TCDIA MEMBERS iI, a current member of TCDLA, believe this applicant to he a i The Voice for the Defense magazine. ipcrson of professional competency, integreity, and good moral i icbarcter. The applicant is actively engaged in the defense of i Tlic "Significant Decisions Report" of iulpo~fantcases decided jcriminal cascs. by llie Texas Court of Criminal Appeals and Federal Courts. I TCDLA Metnbership directory--referrals to and from crimi~lal I Signitnre of Member I defense lwyers in over 100 Texes cities. I I Outstanding educational programs--featul-ing recognized iPri,rlo, Dpe Afcntberk Nnrrre I expel-ts on practical aspects of defense cases. jMail to: Texas Criminal Defense Lawycrs Association I Availablility of Lawyers Assistance Committee, a ready source I Atto: Membership Dcpartment I of information and assistance to members, and the Amicus I 600 West 13th Street I Curiae Committee. Austin, Texas 78701 ! 512-478-2514 fx 512-469-9107 I Organizational voice U~ronghwhich criminal defense lwyers I I jAmount Enclosed $ I can for~nlilateand express t1ici1- posirion legislation, conrt on ilAMEX IVISA I MASTERCARD l DISCOVER i reform, importanl defense cascs through Amicus Cnriae activity. iCard Nmnher I Disco~nits for publications of interest to criminal defense ;Expiration Date Name m Card I lawyers. schedule of events oct

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4:00 Dissecting Federal Informants member price! William 6. Moffitt, Washington, D.C. 0 New Member $ 75.00 0 Renew membership $150.00 Friday, September 8,2000 0 Eariv Realstration ends Ausust- 25". After that date please a& $ 50.00 0 Donation to TCDLEI Scholarships Litigation Under the Hyde Amendment (501~3organization) s- Chip Lewis, Houston Your total S- 0 Check made payable to TCDLA enclosed. 0 Charge my u Visa 3 American Express Jury Selection in Federal Court: The 15 Minute 0 Mastercard 0 Discover Voir Dire Name on Card Card Number Robert Hirschhorn. Lewisville Expiration Date 0 Please check here or call the office if you requirl Issues Before the Magistrate: Identity, Probable special assistance. We will be happy to help you ir Cause, and Detention any way we can. U.S. Magistrate Mary Milloy. Houston Scholarships availaole. please cal Randy at 5121478-2514 o che-k out our Web site - !rru.(v~~:wnfor more informal'or Ferreting out Government Misconduct about this and other TCDLAseminars Michael Ramsey, Houston