Culombe vs. Connecticut - 25 years later JUNE 1986 VOL. 15, NO. 12

Booking the Mad Dog Killers. Photo by Arnm G. Hatsian, courtesy of the Hartford Courant. JOURNAL OF THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

VOICE for fie oe/ese (ISSN 03642232) is published monthly by the Texas Crminal 6 The Mad Dog Killers: Culo~abe Defense Lawyers Association, 600 W. 131h, vs. Cmnecricur-25 Years Later Austin, Texas 78701, (512) 478-2514. Annual by Brian W. Wit@ subscription rate for members of the ass~ia- 14 Highlights of the Texas Rules of lion is 8% which is included in dues. Nonmembers subscript~on-$36 per year. Se- Criminal Evidence cond class wslage paid at Austm, Texas. By David W. Coody POSTMASTER: Send address changer to YOlCEfor IheDefense, 600 W. 13th. Austin, Texas 78701. 5 WHAT THE HELL! AU articles and other editorial contributions should beaddrmedto theeditor, M. P. "Rus- iDR1-28 Significant Decisions Re~ort ty" Duncan Ill,lOl N. Eln~,Denlon, Texas 16 TK~Last Word 76201. Advertising inquiries and contracts sent 23 DWI Practice Gems lo Eugene Hayes, Artforms Agency, P.O. Box 24 From the Inside Out M74, Austin, Texas 78765 (512) 451-3588. 28 Hearsay 28 Letters 30 Forensic Science News EDITOR M. P. "Rusty" Duncan, I11 "SIGNlFICAhT DECISIONS REPORT" Editor Keny P. EilzGerald 21 Criminal Law CLE Calendar Associate Editoo 22 CDLP News David L. B~Boord 22 Memorial to John T. Boyce Catherine Grccne Burneft Richard A. Andersan Wallet C. Prentice TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION Stanley 1. Weinberg PAST PRESIDENTS Carolvn &use Garcia J. DouglarTinkcr OFFICERS Chiton L "Scrappy" Holrnes (1984 8s) Howlon Corour Chrirti Thomas G. Sharp. Jr. (1983-84) Mtchael P. Glbson John ~kbe President Chlford W. Brown (1982-831 Dailu Tvler Louis Dugas, Jr. Charles M. McDonald (1981182) Gcrald H. Goldstem Orange Robert 0. Jones (1980 81) San Antonro oailan Vlncsnt W. Pcmi (1979-80) Ronald L. Goranson Sheldon Weilfeld President-Elect George F Luquetle (1978-79) Dallas Brownsville Knox Jones Cmmett Colvin (1977-78) BIU Habern Dain P. Whitworth McAlien \\'eldon Hoicornb 11976-771 Sugarland Austin Jeremiah Handy Jack 3. Zimmcrmvnn Eht Vice President San Antonio Hou~mn Charles D. Butts Merr~leeL. Harmon San Antonio C. Anthony Fhour (1972-73) Wac0 ASSOCIATE OIKBCI'ORS !:rank Maloney (1971-72) Joseph C '9um" Hawthorn David L. Botrford Second Vlce President Beaumont DIRECTORS Austin Edward A. Mailett Harry R. HPard Bill Gla~py Houston Cwil W. Bain L0"gvicW Mesquite San Antonio Jan E. Hemohdl Chu& Lanehart Seerelary-Treasurer David R. Bler Dallas J. A. "Jim" Hobo Lubbock Hou~ton JeNtey Hinkley John Linebarger Odwa Wdllam A.Brattm, Ill Midland Fort Worlh DaUas Frank Jackson Robert Pelton AssisIan1 Secretary-Treasurer Mlke Brown Dalb Tim Evans Houston Lubbock Jeff Ktarnev David Shemard Fort Worth Stan Brawn AY& Abllene William B. Smith TCDLA STAFF Charles L Caperton Midland meculive Director Daila6 Arch C. McColl, Ill Vernard Solomon Robert L. Towcry Allen Caziet Dallas Marshall San Antonio John 1. C. O'Shea Mark Stevchs Office Manager Joseph A. Connors. Ill Lubbock San Antanto Name Neile McAllen BUl Wlrohkaemoer Gene DP Bullet. Jr. Meetings Coordinator HDu~lon Fort \VOII~. George Scharmen Gus E. WIICOX Laurie Hunt Buddy M. Dickelnn San Antonio Universal City Sherman Richard Thornton Ciyde WdElams 3 1985 TEXAS CRIMINAL DEFENSE Bob Estrada Galvc~ton -AWYERS ASSOCIATION Wichita FaUr TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATKN

Fellows Of The Criminal Defense Lawyers Educational Institute

The TEXAS CRIMINAL DEFENSE LAWYERS EDUCATIONAL INSTITUTE was incorporated in 1981 for charitable and educational purposes. As a member of TCDLA, you are automatically a member of the Institute, which serves as the foundation for our educational activities. A member is eligible to become a Fellow of the Institute upon the con- tribution of $1,500, either paid in a lump sum or by pledge with five annual installments or less.

In 1986 we are honoring those Fellows whose contributions were primarily responsible for the acquisition of our head- quarters property. However, we still have an outstanding mortgage, which needs to he paid off or substantially re- duced. Also, the Institute's educational activities depend upon having resources for advance expenses in planning and publicizing the seminars.

We need you as a Fellow! In addition to the deserved pride in supporting the Institute, you will receive a Fellow Membership Certificate. Upon full payment of the $1,500, a distinctive wall plaque will be presented to you in recognition of your significant contribution. Also, your name will be included on a permanent plaque dispayed at the home office.

Please complete and mail the pledge to TCDLEI, 600 West 13th St., Austin, Texas 78701. All contributions are tax deductible, and checks should be payable to the Texas Criminal Defense Lawyers Educational Institute.

If you are not in a position to make a Fellows pledge, please contribute to the Building Fund (see reverse side).

I hereby accept nominat~onfor ~nembershipin the Fellows of the Texas Criminal Defense Lawyers Educational Institute and submit herewith my contribution of $300.00 for the first annual assessment (or the entire amount of $1,500) payable to the TEXAS CRIMINAL DEFENSE LAWYERS EDUCATIONAL INSTlTUTE.

Signed this day of , 1986.

(Signature)

Address: Telephones: CitylState: ZIP office ( )

Bar Card Number: Home (

June 1986 1 VOICE far. flze Defense 3 TEXAS CRIMINAL DEFENSE LAWYERS ASSOCI ATlON

Building Fund Drive

The TEXAS CRIMINAL DEFENSE LAWYERS EDUCATIONAL INSTITUTE was incorporated in 1981 for charitable and educational purposes. As a member of TCDLA, you are automatically a member of the Institute, which serves as the foundation for our educational activities. A member is eligible to become a Fellow of the Institute upon the contribution of $1,500, either paid in a lump sum or by pledge with five annual installments or less.

In 1986 we are honoring those initial Fellows whose contributions were primarily responsible for the acquisition of our headquarters property. However, we still have an outstanding mortgage, which needs to be paid off or substantially reduced. Also, the Institute's educational activities depend upon having resources for advance expenses in planning and publicizing the seminars.

The note on the property comes due on May 1, 1987. The association has a good credit record with the bank, and we can establish long-term financing if we can make a substantial reduction on the balance owing. However, regular mortgage payments are a constant drain on the financial resources of the Institute, and we need those resources for developing a comprehensive continuing legal education program. The mortgage should be paid off completely!

Therefore, we have established a goal of $125,000 to be raised by May 1, 1987. We realize that not evetyone is in a position to make a Fellows pledge (see reverse side), but your Executive Director believes that each member can and will contribute to the Building Fund in an amount or pledge equal to at least $50. For those who later want to become Fellows of the Institute, the amount of contributions to the Building Fund will be credited to the Fellows pledge.

Please complete and mail the form below along with your check to TCDLEI, 600 West 13th Street, Austin, Texas 78701. All contributions are tax deductible, and checks should be payable to the Texas Criminal Defense Lawyers Educational Institute.

I hereby pledge $ to the Building Fund for the Texas Criminal Defense Lawyers Educational Institute. Enclosed is my check in the full amount or in the amount of $ (at least one-half the pledged amount, with the balance due on or before April 1, 1987). Signed this day of , 1986.

Enclosed: $ (Signature) Name:

Address: Telephones: CitylState: ZIP Office ( 1

Bar Card Number: Home ( )

4 VOICE for the Defense /June 1986 WHAT THE HELL! by Robert L. Towery Executive Director, TCDLA

At some time during our lives, each of financed by a grant from the Criminal us has had to reach down deep for a deci- Justice Division of the Governor's office, sion to take some action which was to im- your leadership is fully aware that such pact the lives of other people, even funding cannot last forever. It is incum- someone we did not know. Perhaps it was bent upon TCDLA to build a reserve to put in the representation of a client, but in all the Institute in a position to assume probability it had nothing to do with our ultimate responsibility for financing the professional careers. Our own experience Project's programming. tells us that when we act unselfishly, think- In 1982 thirty-five TCDLA members ing only of others, there is a sense of made a pledge of $1,500 to the Institute, satisfactio~~quite unIike any other feeling. payable in five annual installments of theinstitute. One is for a pledge of $1,500 The point is ... we did what we had to do $300, the last of which is being paid this to become a candidate for fellow Member- because it was right. year. During these five years twelve more ship. The other is for a contribution in any The Texas Criminal Defense Lawyers members have made pledges of $1,500, amount. Obviously, we want each member Educational Institute was formed to help and several others have indicated their in- to give as much as possible in his or her others, to make a concerted effort to uu- tention to do so. But this is a hit-and-miss respective circumstances. But I am more prove our system of criminal jurisprudence method of trying to retire themortgage on interested in achieving 100%participation through education. The intent of its the property which houses the association of our membership, because the Institute founders was to establish an entity which headquarters and the Criminal Defense is a membership project. As a member of could develop and present educational pro- Lawyers Project. We need a plan which TCDLA you are automatically a member grams which would benefit the general involves every member of TCDLA, not of the Institute, so you are responsible for public, members of the criminal defense just 35 or 47 or 100 or 300. its nourishment and well being. bar (specially those who would accept ap- Our Annual Awards Dinner and Monte The Institute has tax-exempt status under pointments to represent indigents), and Carlo Party at the State Bar Convention Sec. 501(c)(3) of the Internal Revenue those persons charged with criminal of- will kick off a budding fund drive for the Code, and contributions to the Institute are fenses (again, specially indigents who do Institute. Those who have completed their tax-deductible for the donor. This is only not have the means of employing adequate pledges will be honored and inducted as an additional incentive because we have a counsel). Fellow Members of the Institute. Those moral obligation to support the educational The reality of Minimum Continuing who have made pledges and paid the in- endeavors of the association. This year the Legal Education in Texas will put pressure itial installment of $300 will be recognized Institute's only chairman of the board will on the Institute to provide educational pro- as candidates for Fellow Membership. All retire from that position. Charles M. gramming sufficient for a substantial proceeds from the Monte Carlo Party will McDonald, past president of TCDLA from number of lawyers to meet the individual go to the Institute, but this will only serve Waco, has dedicated the past five years to requirements of MCLE. TCDLA plans to as seed money for our CLE programming forming the Institute, locating and financ- dojust that, and we are confident that the for the coming year. We want to pay off ing the purchase of the property, and pro- Institute's continuing legal education pro- the mortgage and have one helluva moting Fellow Memberships. There is no gram will operate in an efficient manner. celebration. better way to say thanks than to retire or Any well run CLE program should pay for There are a number of members who can substantially reduce the mortgage. itself through registration fees and the sale and should pledge $1,500 and either pay I once heard a wealthy philanthropist ex- of publications, assuming that it has ade- it all at one time or in five annual in- plain why an elderly widow's donation was quate funding and it is not burdened with stallments. There are a lot more members more meaningful than his own: "Anyone previously existing liabilities such as a who perhaps cannot pay $300 but can pay can give out of surplus, but when one large mortgage. $200 or $100, and I do not believe we have makes a sacrifice to give to another, that's Our Institute has such a mortgage, and any members who cannot contribute at when giving really counts." So this month's it is a constant drain on the resources which least $50, even if it has to be paid in two colun~t~is addressed to those of you who should be accumulating toward develop- installments. Remember earlier when I must reach deep and make a sacrifice in ing a first class educational program. Plan- mentioned reaching down deep for a deci- order to contribute to our Educational In- ning, organizing, and implementing quality sion to help someone else? Well, now is stitute. Those who have a surplus may con- CLE institutes and courses requires finan- the time to examine your commitment to tribute more, and it will be gratefully cing well in advance of any revenue to off- TCDLA and to the educational program accepted. Some may have serious doubts set the expenses incurred in the early we are establishing. about our achieving 100% participation, stages. Although the Criminal Defense In this issue of the VOICE there are tivo but not me. Lawyers Project is funded and partially different forms for making a donation to Oh well ... what the hell!

June 1986 / VOICE for the Defense 5 The Mad Dog Killerst Culombe vs. ~onnecticut-25 Years Later by BBrian W. Wice

"The abhorrence of society to theuse of calling card in the slayings, as ruthless as tually paved the way for Culombe to plead involuntary confessions turns on the they were senseless, was a single shot to guilty to second degree murder in ex- deep-rooted feeling that the police must the head, at an average gain of $33. change for a life sentence. Justice Felix obey the law while enforcing the law; Taborsky and Culombe were sentenced Frankfurter's opinion woulditself come to that in the end life and liberty can be as to death for the most brutal of the murders, be regarded as the most authoritative ever much endangered from illegal methods a December 1956 double-slaying of a New written on the subject of coerced confes- used to convict those thought to be criminals as from the actual criminals Britain gas station attendant and his sions, tracing the investigative excesses of themselves." customer. After the Connecticut Supreme the Connecticut State Police in extracting Court rejected their appeals in February, a trio of confessions fmm Culombe. The Chief Justice Earl Warren, Syano v. New 1960, Taborsky opted not to appeal any decision would largely signal the end of an York, 360 US. 320, 321 (1959). further and became the last convict ex- era for police who would soon be con- ecuted in Connecticut's electric chair in fronted with the Escobedo and Miranda They were called the Mad Dog Killers May of that year. Culombe, however, decisions just five years hence. and they held the Connecticut countryside sought review in the United States A quarter of a century later, this then is in a grip of terror during the win& of Supreme Court and twenty-five years ago the story of the most notorious criminal 1956-1957. this month, his conviction and death case in Connecticut's history-a case which Their real names were Joseph Taborsky sentence were set aside on the grounds that would change the face of the criminal and Arthur Culombe, apair of33-year-old his confessions were improperly admitted justice system-and of theexacting toll that career criminals who confessed to six at his trial. it took on all concerned: the victims, the execution-style robbery-killings. Their The Supreme Court's 6-3 decision even- killers, the cops, the lawyers and the law >.""...itsplf "I doubt very much if [the Constitution] Brian Willianc Wice, a criminaldefense require[s] us to hold that the State my lawyer in Houston, is a 1976magna cum not take into custody and question one lade graduate of the University of suspected reasonably of an unwitnessed murder. If it does, the people of this Houston Sclloo1 of Cornnlmzicafionand a country must discipline themselves to 1979graduafeof the Bates College of Law. seemg their police stand by helplessly Afomterbriefing attorney to Judge Sam while those suspected of murder prowl Houston Cli~ztonof the Texas Court of about unmolested. Is it a necessary price Criminal Appeals, WiceS articles have ap- to pay for the fairness which we know peared i~ta variety of publicafions irt- as due process of law? And if not a cluding the Texas Bar Journal, Housfon necessary one, should it be demanded by Law Review, Texas Sportswotfd, D Muga- this Court? I do not know the ultimate zine, and the St. Mary5 Law Review. An answer to these questions; but, for the afficle that he co-authored with Judge present, I should not increase the han- dicap on society." Clutonfor the latter publication won the Texas Bar Foundation5 Outstanding Law Justice Robert Jackson, dissenting, Waffs Review Award in July of 1981. v. Indiana, 338 US. 49,61-62 (1949). A native of Horrford, Connecticut, Wice5 couunentaries have recently been The night of Deeember 15,1956 brought featured in the Houston Post and the Hart- Connecticut its worst ice storm in 35 years, ford Courant. Photo by mlsdhall wn~e knocking out power in over 85,000 homes

6 VOICE for the Defense / June 1986 and killing four people. One of the few law enforcement agencies were unable to 'If anything should happen to anyone in businesses in greater Hartford not to lose turneven the simplest of clues, the Detec- my family, I'd want Sam Rome in on it. pawer was Kurp's service station on tive Division of the Connecticut State Thev mieht- not convict him because of Stanley Street inNew Britain. Shortly atter Police was called in. State Police Commis- a tefhnicality, but I'd know Sam would 6:00 p.m., Chester Starson, whose bus had sioner Kelley announced that he had placed get the guy who did it.' developed battery trouble across the street Lieutenant Sam Rome in charge of the in- Joe Crowley, Police Reporter for The from Kurp's, found the owner of the sta- vestigation. Rome was an old-fashioned Ha&ord Tunes, quoted in Mildred tion, Edward J. Kurpiewski, slumped cop who was well on his way to becoming Savage's A Great Fall. across the station's boiler room floor with the most famous as well as contmversial a bullet wound to the head. In the station's law enforcement officer in Connecticut. The two men whom Sam Rome opted to restroom, Starson found Daniel J. pick up for questiwiog that Saturday after- Janowski, also a victim of a gunshot noon in February were by no means new- wound to the head. The only surviving Rome's methods-arrests comers to the criminal justice system. eyewitness to what had happened was without warrants or Joseph Taborsky, a native of Bmoklynn, Janowski's daughter who was playing in had his first brush with the law at age 11 her father's car; she was eighteen months probable cause, prolonged for stealing afriend's bicycle. After a stint old. interrogation without being in reform school for breaking and enter- Just two weeks later, the owner ofa li- ing, he drew three to five years in prison quor store in nearby East Hartford was apprised of rights to silence for an unsuccessful escape attempt. In gunned down in the course of a robbery, 1948, Taborslty drew anotherprison term felled by a single shot to the temple. Ten or counsel, though clearly in Washington state for burglary; other days after that, the proprietor of a North illeaal in 1986. were the convictions included breach of the peace Haven shoe store and two of his customers and carrying a weapon. But it was after be- were forced to kneel before they were shot; orduer of the day in the ing released from the penitentiary in 1950 the customers survived but the owner did late 19.50's. that Joseph Taborsky really hit the big not. Finally in mid-January of 1951, the time. owner of a pharmacy and his customer in Arrested by Hartford police for a minor Hartford were each shot in the head at No one questioned his ability to break a offense, Taborsky's younger brother, point-blank range during an apparent rob- tough case, only his methods. Albert, implicated them in the robbery- bery to become the fifth and sixth fatalities Those methods-arrest without warrants slaying of liquot store clerk Louis Wolfson in six weeks. or probable cause, pmlonged interrogation in West Hartford inMarch of 1950. Albert The pwp1e of Connecticut were both without being apprised of rights to silence would later testify that he sat in the car outraged and terrified at the continuing or counsel, though clearly illegal in 1986, while Joseph entered the liquar store and depredations of the men whom the news- were the order of the day in the late fif- shot Wolfson once in the face with a .22 papers, radio and television stations were ties. Connecticut was one of approximately caliber pistol. Joseph was convicted of calling tke "Mad Dog Killers." When local twenty states which had not yet subscribed first-degree murder and sentencedto death to the doctrine of Woif vs. Colomdo bar- ring the admission at trial of evidence which had beenillegally seized. Regardless of what police did to extract a confession from the accused, Connecticut law did not recognize the suppression of that confes- sion unless it was later proven untrue. Morwver, the Connecticut State Police, as the elite law enforeement agency in the state, could do little wrong in the eyes of prosecutors and judges. That the good citizens of Connecticut were in terror as a result of the Mad Dog Killers was an understatement. Every day the rewards posted for the apprehension of the killers grew as the public demanded that they be brought to justice. It was against this backdrop on the afternoon of February 23, 1957 that Rome decided that lack nf evidence nohuithstandinfr. he would

June 1986 1 VOICE for the Defense 7 while Albert, in exchange for his pivotal Sir James Stephens, quoting an exper- that he was not under arrest, and Culombe testimony, was permitted to plead guilty ienced Indian policeman on securing drove with Sergeant Paige to State Police to second-degree murder and received a confessions. (1918). Headquarters. Culombe would never again life sentence. The decision to take Taborsky and be out of the effective control of the State Shortly after testifying against his older Culombe in for questioning had not been Police. brother, Albert was admitted to Norwich lightly reached. The evening before, At headquarters, Rome asked Taborsky State Hospital suffering from severe Albert Bill, the State's Attorney for Hart- and Culombe if they would agree to ac- schizophrenia. Joseph filed a motion for ford County had met with John LaBelle company several officers to Coventry and new trial allegingthat Albert had been in- and Doug Wright, his two assistants, as Rockey Hill to see if they could be iden- sane at the time of his trial and that had well as with Sam Rome and his cadre of tifedbythe complainants in two robberies. the jury been aware of this fact, they might detectives, to determine a course of action. The pair consented and during the trip back well have rejected his testimony. In July Almost thirty years later, John LaBelle and forth to the robbery locations, of 1955, the Connecticut Supreme Court Culombe and Taborsky, still not regarded agreed with this contention and set aside as under arrest, were questioned briefly Taborsky's conviction and death sentence. "It was decided to pick about their participation in several crimes. With Albert still suffering from the ravages Later that evening, Culombe agreed to turn of schizophrenia, the State had no case. On them up and book them over seven or eight guns he had at his October 6,1955, Joseph Taborsky walked for breach of the beace. apartment and following a brief trip to get out Of prison a free man after fifty-two the weapons, Culombe was returned to months on Death Row. -we were terrified- that if headquarters. Arthur Culombe, like his boyhood friend we didn't take them in During the subsequent interrogation that Taborsky, was born with brain damage evening which consumed some three-and- complicated in his caseby a series of head that afternoon, that there a-half hours, Culombe told Rome that he injuries sustained as a child in Fall River, would be another killing wanted to see a lawyer but did not give him Mass. Culombe left the third grade at the the name of any specific attorney. Rome age of sixteen as a functional illiterate who that night." told Culombe that he could have any could do no more than read and write his lawyer he wanted if he would tell Rome own name. Arrested four times between recalled themood in the State's Attorney's which one to caU knowing full well that the ages of thirteen and seventeen, office that cold February night. "It was a Culombe, an illiterate, would not be able Culombe served two terms in the Cheshire very scary situation," he said alluding to to use the telephone directory. Sometime Reformatory. After escaping from a train- the ongoing wave of execution-style kill- before midnight, Rome placed Culombe ing school for mental defectives in ings. The community was outraged and under arrest pursuant to a Connecticut Massachusetts, Culombe would eventually we had little to go on except our hunch that statute which permitted arrest without a serve two terms in the Connecticut State it was them (Taborsky and Culombe). warrant where the arresting officer had Prison. Finally, Bert Bill decided that we would cause to believe that the suspect arrested After being paroled from prlson, pick them up the next day and book them had committed a felony. Although this Culombe married and held down a job as for breach of the peace. We were terrified statute plainly required that persons ar- a freight handler, supporting his wifeand that if we didn't take them in that after- rested under that provision be arraigned two young children. Described by a former noon, that there would be another killing- before a magistrate as soon as practicable, teacher as 'bninterested, dishonest, bad- that night." Culombe would not be presented in court natured and dull-witted," Culombe was Shortly after 2:00 p.m. the following until the following Monday. later diagnosed as a "high-grade mental afternoon. State Police Detective Frederick The next day, Sunday, February ?A, defective," with an I.Q. of sixty-four. Of or an and Eugene Griffin, assigned to tail Culombe was again interrogated by Rome, far greater import, however, was a psy- Taborsky and Culombe, accosted the pair as was Taborsky, concerning the Kurp's chiatrist's later diagnosis that Culombe as they left the home of Taborsky's mother killing and a Hartford robbery. At no time could be intimidated and that "his pattern in the south end of Hartford. The detec- were either of the suspects apprised of their of living and his way of behaving can all tives told Taborsky that Lieutenant Rome rights to silence or counsel. The pair, as easily be influenced by those persons wanted to talk to him at State PoliceHead- they had since their arrival at headquarters, closest to him." In the days that would quarters and that he was not under arrest. continued to deny involvement in any of follow SamRome's decision to pick up he Taborsky agreed to go to headquarters and the crimes they were questioned about. and Taborsky for questioning, the psy- Culombe drove him there following the On Monday, Taborsb and Culombe chiatrist's words would prove eerily pro- detective's vehicle. were driven to New Britain Police Head- phetic. When Culombe returned to his project quarters where they were booked for "There is a great deal of laziness. It is apartment, he was greeted by Detective breach of the peace, just as Albert Bill had far pleasanter to sit comfortably in the Sergeant Donald Paige and Detective proposed forty-eight hours earlier. Alex- shade rubbing pepper into a poor devil's Robert Reimer who told him that Rome ander Goldfarb, who would eventually eyes than to go about in the sun hunting wished to speak with him too. The detec- assist in Culombe's defense at trial recalled up evidence." tives told Culombe, as they had Taborsky, the tenor of the times that afternoon. 'The

8 VOICE for the Defense /June 1986 streets were limed with people shouting that afraid of Taborsky. An hour later, he final- SLAYINGS: POLICE WON'T SAY Culombe and Taborsky should be hung ly told the detectives that they were look- WHICH OF TWO CONFESSED." Com- without a trial. It looked like a scene from ing for four guns and two men and that he missioner Kelley refused to tell reporters the Oxbow Incident." had not done any of the killing himself. which suspect had confessed "because our Back at headquarters, Culombe was Rome, who had been listening in via in- investigation is not yet complete." That again questioned about the Kurp's killings tercom, immediately came into the inter- afternoon, Rome brought Culombe into a for three hours. After questioning rogation room and convinced Culombe to room where Taborsky was being inter- Cnlombe, Rome would take what little in- show the officers where the guns would be rogated and had him repeat his confession. formation he had and go into the next room found. Culombe was then arraigned in Superior where Taborsky was being interrogated to On the way to the swamp where Court where he was finally apprised of his see if the latter could or would add Culombe had said he threw the guns, some constitutional rights and had counsel of his anythmg of substance to what Rome four days after being taken into custody choice appointed to represent him. The already knew. That the pair had not yet without ever having seen a lawyer or be- court then, at Rome's request, released the been charged with any of the killings made ing apprised of hu right to remain silent, prisoner into h~scustody for the purpose little difference to the Hartford Courant Culombe finally told police what they had of continuing the investigation. whose eight column headline announced wanted to hear. He gave a detailed account Taborsky was also booked on first- that "TABORSKY, PAL SEIZED IN of the Kurp's killings but did not admit degree murder charges and released into PROBE OF SLAYINGS." con~plicityin the actual killings, Stopping Rome's custody. That evening, Taborsky's On Tuesday, February 26, Taborsky and at his apartment, Culombe told his wife mother, a deeply religious woman, came Cnlombe were taken back to New Britain that he had decided to cleanse his con- to headquarters at her own request and told to be arraigned on breach of the peace science and make a clean breast of things her son that she wanted him to tell the truth charges. Inside the crowded courtroom, and that he was cooperating with police and to give his ve~sionof events because the pair were placed in a wire-mesh cage because he was afraid Tabors@ would Culombe had put all the blame on him. In in one corner while photographers with ham her. Later that night, Culombe the presence of both Rome and Detective flashbulbs tookpictures of them. Although repeated his confession to the State Police Reimer, Taborsky told his mother that Rome had promised the pair that they Commissioner before signing the first of Culombe had robbed and killed Kurpiew- would get to speak with attorneys that three written statements ending a four-and- ski while he had robbed and later killed afternon, they were taken out of the court- a-half hour interview. Janowski. Two days later, having told his room after the State's Attorney moved for The following day, the Hartford mother and sister that he did not need or a continuance without ever speaking with Courant's eight column headline blared want an attorney, Taborsky signed what counsel. Rome would later testify that his "EX CONVICT ADMITS SIX HOLDUP would be his only written confession. conduct, although not in accordance with state law, was in accordance with accept- able police investigative methods. NATIONAL LEGAL SERVICES, INC. Later that day, Rome interrogated the pair for another two hours before summon- ing Mrs. Culombe and her two children to SENTENCING INVESTIGATIONS headquarters to see, as he later testified, AND "if she would go along and lay the cards ALTERNATIVES on the table to her husband and see if he wouldn't confess." Culombe's wife told h~m 1. Defense PSI-Using latest CCCA information that if he were responsible for the Kurp's (i4ational/lnternational) killimgs that he should tell police the truth; 2. Alternatives to Prison Rome later candidly admitted that this 3. Parole Commission Regulations method often greatly expedited the giving 4. Parole Representation/National Appeals of a confession. Choked up by the presence 5. Bureau of Prisons Policies of his wife and children at headquarters, 6. Guideline Issues and Sentencing Culombe told Rome that he had nothing 7. Immigration Reports 8. more to say and the questioning ceased for Plea and Bond lieporlr 9. Sentencin!~I~cconsidernll~~ns the night. 10. Legal Res;arch/~ost Conviction At 1:00 p.m. the following day, Cnlombe was returned to headquarters Central Office: Florida Offlce: where Sergeant Paige told him to stop ly- 710 Lake View Avenue, N.E. 941 N.E. 19th Avenue. Suite 209 ing to the detectives. After being ques- Atlanta, Georgia 30308 Ft. Lauderdaie. Florida 33304 tioned for another two hours by Paige and (404)874-9553 (305)764.6970 Detective Murphy, Culombe told the pair 1-800-241-0095 that he wanted to cooperate but that he was

June 1986 1 VOICE for tlre Defense 9 Although Culombe finally saw his at- system of justice embedded in the minds pointed to represent Culon~be. When torney, Thomas McDonough, the next of our citizens that outraged feelings usu- McDonough thundered that he had ordered day, he nonetheless told one of his jail ally give way to a desire for orderly pro- Rome to leave his client alone and wanted guards the following day, Saturday, that cedure." Although the newspapers had to know why Rome disobeyed him, the of- he wanted to volunteer some additional in- "exploited their journalistic license," the ficer's reply was terse. "I don't take my formation on the Kurp's incident. Culombe trial judge concluded that "intemperate ex- orders from you," he shot back, "I was do- thcn fur the first timcorally confcsscd thal pressions of a mass of people following in- ing my duty to the people of the State of hc had shot Kurpicwski; thv li,llowing day, flammatory publicity are insufficient to Connecticut." he gave Rome his second written statemen! show the impossibility of a fair trial in a Culombe himself took the stand during incorporating this latest admission. Hav- county the size of Hartford County." The the supression hearing to testify that he had ing already signed Taborsky's death war- motion for change of venue was overrul- been kicked, beaten, choked and knocked rant the day before, Culombe had now ed on April Fools' Day, 1957. to the floor during his interrogations. As signed his own. As co-counsel to Culombe, Alexander he sprawled in the witness chair, collar Furious that his client had confessed Goldfarb had no illusions regarding his open, tie askew, his testimony peppered anew, Thomas McDonough ordered Rome with profanity, Culombe described Rome's to leave his client alone and told Culombe tactic in bringing his wife and child to not to sign or say anything further. Yet the Rome told Culombe he Headquarters as a "pretty low-down dirty I following day, Monday, Rome and Detec- trick." State's Attorney Albert Bill waved tive O'Brien brought Culombe a third could have any lawyer he Culombe's five-page confession in his face written statement detailing the events sur- wanted if he would tell during cross-examination and asked the 1 rounding the Kurp's killings but with all defendant to look at it. "It's no good for references to a second crime committed him which one to call, me to look at it," Culombe replied, "I can't later that evening deleted. Rome later knowing full well the read." testified that he opted not to tell On June 19, 1957, Burke and McDonough about this visit because he illiterate Culombe would McDonough urged Judge Shannon to was sure the latter would have kept throw out their clients' confessions even Culombe from "cooperating further." After not be able to use the though Connecticut law did not validate Rome read the transcription to Culombe, telephone directory. such a procedure unless the confession was the latter signed it. false. McDonough pleaded with the judge Ten days later, on March 14, 1957, "to follow the law of the land" in supres- Culombe and Taborsky were indicted for client's chances for an acquittal. "We all sing the confessions but it was of little use. the first-degree murders of Edward Kur- knew that from the time the jury was seated Although Judge Shannon agreed that the piewski and Daniel Janowski. that conviction was a foregone conclusion," third and final confession taken from "[Tlhere are considerations which trans- he recounted. "But Thomas McDonough Culombe at thejail may not have beenpro- cend the question of guilt or innocence. knew that we had a chance to build in per, he could find no "causal connection" Thus, in cases involving involuntary con- reversible error because of the confession between that confession and the first two. fessions this Court enforces the stmngly issue and he set out to make a perfect Each of Culombe's confessions and Tabor- felt attitude of our society that important record on the issue for appeal." After some sky's sole confession, Judge Shannon held, human values are sacrificed where an five weeks ofjury selection, Judge Thomas would be admitted before the jury. agency of the government, in the course Shannon, a former governor of Connec- The confessions having been admitted, of securing a conviction, wrings a con- ticut, began to take testimony on the issue fession out of an accused against his the bulk of the trial was anti-climatic. will." of the confessions which each defendant Culombe did not raise a defense but Tabor- was claiming had been coerced. sky did, calling a psychiatrist to the stand Chief Justice Earl Warren, Blackbum v. McDouough and Wallace Burke, Tabor- to testify that he was insane as a result of Alubamn, 361 US 199, 206 (1960). sky's counsel, kept hammering away at the his alleged paranoid schizophrenia, the claim that each of the confessions taken same ailment which had ravaged his The wheels of justice began to turn with from the defendants were inadmissible younger brother, Albert. "He (Taborsky) alacrity as the State of Connecticut given the fact that Rome had taken them killed because he wished, unconsciously, prepared to bring the Mad Dog Killers by violence, threats, coercion and psy- to die himself," the psychiatrist noted. The before the bar of justice. It took but two chological pressures ''more effective than doctor also theorized that the killings had weeks for the Superior Court to consider a rubber hose." The cross-examination of been precipitated by Taborsky's fifty-two and overrule the defendants' motion for Rome, who had since been promoted to month ordeal on Death Row. "Mr. Tabor- change of venue alleging that a fair trial captain, was stormy when McDonough ac- sky is free of remorse and fear," the could not be had in Hartford County. cused the latter of improper tactics. "It's witness concluded, "and he is unable to Though the case had garnered publicity the ridiculous and it's a lie," Rome shouted at distinguish between fantasy and reality," likes of which Connecticut would never McDonough when he was taken to task for and therefore could not be held accountable again see in a criminal case, the trial judge taking a corrected confession from for his actions. concluded that "so strongly is the American Culombe three days after he had been ap- Before a packed courtroom, John

10 VOICE for the Defense /June 1986 LaBelle argued to the jury that neither Prison in Whethersfield, a mere fifteen defendants and that once counsel had been defendant hadever denied his guilt and that minute trip down what would soon become appointed, "any illegality in the prior pro- both had to be punished for the havoc they Interstate 91. ceedings can be raised and the accused's had wreaked. But Thomas McDonough Ninety weeks after he had walked out of rights fully protected."This logrc somehow countered with the argument that Culombe Death Row, Joseph Taborsky was back. lost sight of the fact that had counsel been wasnot a fit subject for capital punishment. "But if the ultimate quest in a criminal appointed prior to any questioning, as "Not a citizen or a taxpayer will thank you trial is the truthand if thecircumstances Miranda would later require, it is highly for sending him to the chair," he intoned indicate no violence or threats of it, unlikely that either defendant would have as one female juror sobbed. "He deserves should society be deprived of the sus- confessed. a life for no other reason than the fact he pect's help in solving a crime merely The right to counsel issue behind them, because he was confined and questioned the court lost little time in rejecting the solved this case." when uncounseled?" Wallace Burke asked the jurors to ignore contention that the defendants' confessions Connecticut's standard for determining were involuntarily obtained. After a sanity, whether an accused could distin- lengthy recitation of the facts surrounding guish between right and wrong, and to ac- "As his lawyer, I was the interrogation, the court simply noted quit Taborsky by reason of insanity. "The committed to representing that the confessions were voluntary and the law of this state is wrong and each of us trial court did not abuse its d~scretionin will live to see it changed."But Albert Bill Culombe to the best of my admitting them. The remaining issues would have none of that. "You will con- ability, but as a member raised on appeal were disposed with tine to rue the day you let psychiatrists run similar haste in the ten-page opinion. our courts andjuries," he thundreed. Point- of society, I just couldn't Having lost in the Connecticut Supreme ing to photographs of Janowski and Kur- let him go free." Court, Joseph Taborsky had made up his piewski, Bill told the jury that they "had mind that there would be no nliracle whisk- been shot down like pigeons," and that the ing him off of Death Row as there had in defendants had to pay the ultimate price for Justice Robert Jackson, dissenting, Walls 1955. He had found religion during this their actions. v. firdiarra, 338 US. 49, 60 (1949). last stay onDeath Row and he told Wallace Shortly after 11:30 p.m., after some five Burke that he would not cermit him to seek hours of deliberations, the jury filed back By the time the Connecticut Supreme review in the United ~takSupreme Court into the courtroom and foreman C.R. Court heard Taborsky and Culombe's ap- or to ask for a commutation of sentence Miller from Rocky Hihanded the verdicts peal, the decade of the fifties had drawn from the Board of Pardons. "He wanted to to the court clerk. Taborsky, who had to a close. Thomas McDonough and Albert get it over with and spare his family as spent the time playing solitaire in his Bill had died in the interim elevating Alex- much grief as possible," a prison official holding cell while the jury had deliberated ander Goldfarb and John LaBelle from se- told the Hartford Ties. "Taborsky did not his fate, predicted that he would get the cond chair to lead counsel on appeal. The even want to appeal to the Connecticut chair the Culombe "had a chance." He was condemned nien spent their time on Death Supreme Court," said John LaBelle, "but wrong. The jury had found each guilty of Row confined to their cells for all but one that first appeal was automatic and he did first-degree murder and ordered them to hour of the day when they were permitted not have any choice in the matter." die in the electric chair. to exercise under guard. Taborsky, not Shortly after 10:30 p.m. on the evening Taborsky and Culombe accepted their content to let the appeals process run its of May 18, 1960, Joseph Taborsky, the fate calmly as the bailiff, consistent with course, tried on two occasions to take his former choir boy, walked into the death Connecticut's procedure, called for a proc- own life. chamber and waved to two reporters he lamation of silence before each was On February 16, 1960, almost four had befriended during his trial. The man formally sentenced to death by Judge Shan- years to the day Sam Rome took Culombe who had told reporters ''I'm like a man back non. Taborsky, whose usual greeting to his and Taborsky in for questioning, the five from the dead," when he walked out of guards was to point his finger at them like justices of the Connecticut Supreme Court prison in October of 1955, had ordered a he was firing a pistol, was tough, even at filed into court to announce their decision. banana split and cherry soda as his last the end. When he asked Judge Shannon Chief Justice Baldwin, another former meal, willed his body to the Yale medical why he had not made mention of the se- governor of Connecticut, announced the school and confessed that he had, in fact, cond count of the jury's verdict, the judge unanimous decision of the court upholding killed Louis Wolfson in 1950. Even as the told him he had already been sentenced. Culonlbe and Taborsky's convictions and chaplain read from the 34th Psalm, the "I didn't want you to miss anything," said death sentences. Though the defendants black-hooded executioner threw the Taborsky. raised a number of appellate issues, clear- switch. At 10:36 p.m., Taborsky was pro- Judge Shannon set a December 16 ex- ly the nost substantive was the coerced nounced dead. In the twenty-six years ecution date as Wallace Burke and Thomas confession claim and its collateral claim since that May night, no other convict has McDonough gave notice of appeal to the that they were denied counsel. been put to death in the State of Con- Connecticut Supreme Court. Shortly after In rejecting this latter contention, the necticut. midnight, Taborsky and Culombe were court found that there had been no unrea- Less than a month later, on June 21, taken to Death Row at Connecticut State sonable delay in appointing counsel for the 1960, the United States Supreme Court

June 1986 1 VOICE for the Defense 11 granted Culombe's petition for certiorari. Court concluded that the exclusionary rule usefulness, is not a permissible substitute Alexander Goldfarb remembered the after- forbidding the use of illegally seized for judicial trial." noon that he was told the High Court had evidence at trial was now applicable to the John LaBelle, after receiving his tele- agreed to hear Culombe's appeal. "Chief states. It was not a good sign for the State gram that afternoon, told the Hartford Justice Baldwin had called me into his of Connecticut which had opted not to Courant that he refused to comment on the chambers and wanted to know why I had follow the earlier teachings of WoSfv. Col- situation "until I read the opinion." When filed the petition for certiorari. He told me orado. Neither was it a good sign for cops he read the lengthy opinion, he immedi- that we were going to lose and he told me like Sam Rome who, from that day for- ately called Alexander Goldfarb "to tell that from that point on, I would be work- ward, would have to come to grips with him that the third confession [the Monday ing for free." And with that, Goldfarb a new set of rules by which the game had confession taken at Culombe's jail cell] was began to ready himself for oral argument to be played. still in the case." Inexplicably, Frank- in a case he had no way of knowing was It was in the late afternoon of June 19, furter's opinion did not explicitly hold this destined to become a landmark. 1961 that Alexander Goldfarb received a last confession inadmissible, although the 'This Court has recognized- that coercion Chief Justice and two other justices, in a can hc rncnvel ;IF well nr physical and that concurring opinion, did. 'When Mr. Gold- the h1111111of the .~ccuxJis not the onl, Four days after being farb agreed that the third confession was hallmark of an unconstitutional inquisi- still at issue, I asked him if his man would tion." arrested without ever be interested in pleading to murder two [se- cond degree murder with an automatic Chief Justice Earl Warren, Blackburn 1,. having seen a lawyer or Alabanm, 361 U.S. 199, 206 (1960). penalty of life imprisonment]." warned of his right to Thrilled at his victory yet troubled by the As January 19, 1961 dawned clear and silence, Culombe finally ambiguity of Frankfurter's opinion as it cold, Washington, D.C. readied itself for related to the last confession, Goldfarb the inauguration of the nation's thirty-fifth told the police what they relayed LaBelle's offer to Culombe, by president, John F. Kennedy. With all of to now transfered from Death Row to the Connecticut's political movers and shakers wanted hear. Hartford County Jail. A quarter of a cen- on hand for the ceremonies, Alexander tury later, Goldfarb remembered the inner Goldfarb and John LaBelle fully expected telegram from the Clerk of the Supreme struggle he faced as a defense attorney on a packed courtroom for the oral argu- Court telling him that he bad won the vic- the one hand and a member of society on ments. They were not disappointed. tory that his mentor, the late Thomas the other in counseling his client to accept After administering the oath of office to McDonough, had laid the groundwork for. the plea bargain. "As a defense attorney, the new president, Chief Justice Earl War- In a 6-3 decision, the Supreme Court held I was committed to representing him to the ren led the procession of the nine black- that Culombe was questioned so repeatedly best of my ability," Goldfarb recalled, "but robed justices into the Supreme Court's that "he cannot but have been made to as a member of society, I just couldn't let ceremonial courtroom as the Clerk of the believe what the police hardly denied, that him go free. So long as I kept him from Court called case number 161, Arthur the police wanted answers and were deter- going to the chair, I had satisfied my own Culombe versus the State of Connecticut. mined to get them." Writing for the ma- conscience." Although the customary time for oral argu- jority, Justice Frankfurter criticized the Unwilling to gamble his life on the out- ment before the High Court was an hour Connecticut State Police for "frustrating" come of a new trial, Arthur Culombe for each party, the Supreme Court gave Culombe's request for counsel as well as entered a plea of guilty in a barely audible John LaBelle and Alexander Goldfarb dou- for failing to present the defendant before voice before Superior Court Judge Thomas ble the alloted time to argue theirpositions. a magistrate with reasonable promptness. E. Troland on the morning of June 29, The latter clearly remembers Justice Felix "It is clear," Frankfurter noted, "that this 1961. LaBelle stated for the record that Frankfurter asking the lion's share of the man's will was broken." Culombe would not be prosecuted for any questions posed that afternoon. As hecon- The Court empathized with Sam Rome of the other crimes he and Taborsky had cluded his argument, an occasion Goldfarb and the Connecticut State Police in their committed, including a quartet of killings would remember as "my chance of a life- decision to either take in Culombe and they had never been tried for. Before be- time," be secretly hoped that Frankfurter Taborsky for questioning or risk thepros- ing led out of the courtroom to begin his would somehow be assigned the task of pect of additional killings. "But when life sentence, Culombe offered a public authoring the Court's opinion. With that, interrogation of a prisoner is so long con- apology to John LaBelle, the late Albert the justices disappeared behind the black tinued, with such a purpose, and under BiU, the court, and the Connecticut State curtains with the fate of the remaining Mad such circumstances, as to make the whole Police, and praised Alexander Goldfarb Dog Killer in their collective hands. proceeding an effective instrument for ex- "for getting me out of the mess I was in." Exactly five months later, the justices of torting an unwilling admission of guilt," In the spring of 1970, a federal district the Supreme Court filed back into court to Frankfurter held. "due process precludes court granted Culon~be'srequest seeking announce the day's decisions. One of the the use of the confession thus obtained. credit for the four months he bad spent in first decisions to be handed down that Under our accusatorial system, such an ex- the county jail awaiting trial and the four morning was Mapp v. Ohio in which the ploitation of interrogation, whatever its years he had spent on Death Row waiting

12 VOICE for the Defense /June 1986 for the appellate process to run its course cloaked so completely by the Constitution In framing the issue posed by the towards the life sentence he had been that, in an ironic turnabout, police will find Culombe appeal, Justice Frankfurter wrote assessed nine years earlier. Culombe, themselves handcuffed." that this case presented in an aggravated however, refused to ask for a commuta- A quarter of a century later, with the form "the anxious task of reconciling the tion or reduction of sentence as he very memory of the Culombe decision long responsibility of the police for ferreting out well could have given his worsening since faded, it has again become fasbion- crime with the right of the criminal defend- health. "I want to do my time in full as a able to denigrate decisions such as Miran- ant, however guilty, to be tried according gentleman should," Culombe told the Hm- da. Edwin Meese 111, the Attorney to constitutional requirements." The crimes ford Courant in what would be his last General, has loudly berated Miranda as with which the Mad Dog Killers were public comment on the case. having been wrongly decided and helping charged were senseless and brutal, calling In the end though, Culombe could not only the guilty. Innocent people, reasons for swift and energetic action by the Con- keep this promise. Fourteen years and six Meese, are only too happy to talk to the neeticut State Police to apprehend them days after he had shot down Edward Kur- police. This sentiment has even found its and somehow gather evidence with which piewski on that bitterly cold night in New place on one of the most popular televi- they could be convicted. No mission ever Britain, Arthur Kurpiewski died in the confronting Connecticut's law enforcement Connecticut Correctional Institution at personnel was more important. Yet as Somers onDecember 21,1970, at the age Connecticut law did not JusticeFrankfurter wrote a generation ago, of 46. With John LaBelle having agreed "Disinterested zeal for the public good dws in June of 1961 not to oppose his release even recognize the not assure either wisdom or right in the on parole after serving twenty years, the suppression of a coerced methods it pursues." last of the Mad Dog Killers would have Thirty years after the fact, it is difficult walked out of prison a free man on confession unless it were to appreciatejust how great the pressure Feburary 23, 1977. was on the Connecticut State Police to untrue. solve the Mad Dog Killings. But it is 'We an: deeply mi~dfulof ihc anguishing precisely the predictability of that pressure problem wliicl~the incidenuc ufcri~iie that makes it imperative that those sworn presents to the Stares. But the history of sion shows of our day. When Detective the criminal law proves overwhelmingly Sonny Crockett slaps a dope dealer around to uphold the law obey the law while try- that brutal methods of law enforcenient to loosenhis tongue on Miami Vice without ing to enforce the law. If we have learned are essentially self-defeating, whatever benefit of counsel, the viewing public anything at all fmthe Culombe case, it may be their effect on a particular cheers, convinced no doubt that society is is the conviction that men are not to be ex- case.. .Law triumphs when the natural entitled to a confession, secure in their law- ploited for the information necessary to impulses aroused by a shocking crime abidimg belief that the Constitution does not condemn them before the law and that as yield to the safeguards which our bar the solution of the crime, whatever the Justice Fraukfurter wrote in Culombe, "the civilization has evolved for an ad- cost. State which proposes to convict and punish ministration of criminal justice at once an individual to produce the evidence rational and effective." Certainly, the cost to the Connecticut State Police was great. After the bitter against him by the independent labor of its Justice Felix Frankfurter, Walls v. Zn- defeat they suffered in the Supreme Court officers, not by the simple, cruel expedient diana, 338 US. 49, 55 (1949). in the wake of Culombe, it was widely of forcing it from his own lips." believed that Connecticut's elite law en- A quarter of a century after it changed On June 13, 1966, the Supreme Court forcement agency had learned its lesson the face of the criminal justice system, the delivered its opinion in the landmark case when it came to its unorthodox investiga- celebrated case of Arthur Culombe and of Miranda v. Arizo~~a,holding by the tive methods. In reality, the Connecticut Joseph Taborsky, the Mad Dog Killers, barest of margins that prior to any custodial State Police learned nothing. Within a few reflects nothing more or less than thebelief police questioning an accused had to be in- years, the Supreme Court would again take that requiring a person to participate in his formed of his right to remain silent and his Sam Rome and the Connecticut State own condemnation, and denying him even right to retained or appointed counsel. In Police to task in overturning the convic- the right to remain defiantly silent, robs expressly decreeing what they had tacitly tionof sex strangler Roy Darwin on much him of a dignity that even an accused required in Culombe five years hence, the the same grounds as they had in Culombe. criminal must be allowed to preserve. Supreme Court was beseiged by claims Year after that, Connecticut teenager Peter that they had placed police everywhere in Reilly would become a household word a constitutional strait-jacket and set the when State Police tactics in extracting an The author worcld like to thank Alex- stage for making confessions all but ex- unwilling and untrue confession from him ander Goldfarb und John LaBelle forshar- tinct. As Gerald Demeusy, who covered were made public in Donald Connery7s ing their memories of the Culombe case; the trial of the Mad Dog Killers for the best-seller, Guilty Until Proven Innocent. Randy Cox and Kathy McKula of the Hart- Hartford Courant wrote at the time, "Some "It took Sam Rome and his crew a long ford Courantfor their assistafice in obtain- law enforcement officials believe we are time to chauge when they were finally ing the coverphotograph; Deborah Eft1for headed toward an era of lawlessness. forced to follow the new rules," noted John her secretarial talents; Marshall Wicefar Murder, rape and robbery suspects may be LaBelle. hisphotographic assistance.

June 1986 1 VOICE for the Defense 13 Highlights of the Texas Rules of Criminal Evidence

Introduction statement must necessarily be in ex- On September 1, 1986, the Texas Rules istence in the possesion at the of Criminal Evidence will go into effect. time of the request, 'Ems has never before had such a com- 2. Does not apply to statements of a prehensive codified body of evidentiary defendant. rules for criminal cases. Although the rules 3. Permits excision of portions of state- to a large eztent continue current eviden- ment unrelated to testimony of the tiary procednres and are modelled after the witness. Federal Rules of Evidence, there are 4. Rule 611 requires disclosure of any several important differences which should statementused to refresh the memory be noted. This article will briefly outline of any witness, whether State or some of the more significant changes. defense, and regardless of whether or A very handy reference tool is the pam- not the statemat is the witness'sown. phlet containing the Texas Rules of 5. Under either Rule 614 or Rule 611, if Criminal Evidence published by the the State does not comply, the Criminal Law Section of the State Bar of - testimony of the witness must be 'Ibxas. These pamphlets may soon be David K Coody is an attorney with the stricken, or the judge may declare a available at a nominal cost from the State firm of Bfuner, McColl, McGulloch & mistrial in the interests of justice. Bar of Texas, P.O. Box 72487, Capital Sta- McCurley in Dallas, T-. He graduated tion, Austin, Teme 78711. Also, the text of with honors from the Uniwrsity of Taas Rule 508. Identity of Informer, the rules was published in the March, 1986, School of Law and practices exclusively 1. Replaces current law which requires issue of the Texas Bar Journal. criminal law w'th an emghasis on appellate disclosure of an informer% identity advocacy in both stare andfedem/ courts. only when he participated in the of- Rule 504. Husband-Wife Privilegeses Prmious articles by Coody have been fense, was present at the time of the 1. TEX. CODE CRIM. PROC. ANN. ptlblished in the American Journal of offense or arrest, or is a material art. 3811, rendering spouses incompe- Criminal Law and t1w Southwestern Law witness to the transaction or as to the tent to testify against each other, will Journal, and he is the editorial assisfantfor defendant's knowledge. Rule 508 ap- be eliminated. Erisman's Reversible Errors in TeKas pears to create a new, more liberal 2. 'ho privileges are created instead of Criminal Cases. standard for disclosure. an absolute bar: 2. Privilege under Rule 508 must yield: A. Confidential communications any minor child in the A. Whenever a showing is made privilege. household. that the informer may be able B. Privilege not to he called as a 5. Exeptions to privilege against being to give testimony necessary to witness. called as a witness: a fair determination of guilt or 3. Confidential communication privilege A. Matters occurring prior to innocence. may be claimed by either spouse, but marriage. B. When the informer's identity the non-testimonial privilege may B. Proceedings where defendant is has already been disclosed. only be invoked by the witness spouse charged with a crime against . C. When the informer is called as and not the accused. the person of a minor child or a wirness for the State. 4 Exceptions to confidential eom- any member of either spouse's 3. Informer's identity may also be munieations privilege: household (except the witness disclosed in a suppression hearing A. Communications in furtherance spouse). when the judge is not sstisfied that the of a crime of fraud. information was received from an in- B. Proceedings where defendant is Rule 614. Production of Statements of former reasonably believed to be charged with a crime against Witnesses. reliable or credible. However, if the the person of a minor child or 1. Creates a reciprocal Gaskin rule court does not believe that the in- any member of either spouse's under which witness statements must former is reliable or credible, the household [except the witness be disclosed upon request by either most logical result will usually be to spouse> Query: Does this the accused or the State for pnrpos~s suppress the evidence which may mean any minor child or just of cross-examination. However, the render identity a moot issue.

14 VOICE for the Defense /June 1986 Rule 404(b). Notice of Extraneous Of- all character witnesses, or is it trustworthiness of the statement. femes. restricted to reputation witnesses and, 3. This liberalizes the admissibility of 1. State must give notice, upon request, thus, may be avoided by use of opi- declarations against penal interest of intent to use extraneous offenses nion evidence? made by others which exculpate the not arising in the same transaction as defendant. Current law holds that the charged offense. Rule 405(b). Methods of Proving such a statement is inadmissible 2. Notice of extraneous offenses is un- Character: Specific Instances of unless: uecessarv if the offenses are not to be Conduct. A. The evidence against the introdu& in the State's case in chief. 1. Prohibits proof of a character trait defendant is solely circum- 3. This notice may be of minimal prac- through the use of specific instances stantial; tical value since many extraneous of- of conduct unless the character trait B. The guilt of the declarant is in- fenses are introduced only in tebuttal. is an essential element of the charge, consistent with the accused's There is still a constitutionaldue pro- claim or defense. guilt; and cess notice pmblem arising from an 2. Most significant limitation is upon C. The declarant was situated so ambush with uorevealed offenses, proof of a victim's prior violent acts that he might have committed which may be raised by appropriate to show that he was the initial ag- the offense. pretrial motion or midtrial motion gressor in a self-defense situation. for continuance. A. May still prove violent Rule 509. Physician-Patient Privilege. character of victim by reputa- I. No such privilege is provided under Rule 607. Who May Impeach. tion or opinion testimony. the new rules. This also totally 1. Will permit a witness to be im- B. May also still prove specific eliminates the psychotherapist-patient peached by either party, including the violent acts of complainant of privilege in criminal proceedings ex- one who called the witness. which the accused was aware cept as provided by Rule 510 for 2. Abolishes the current stringent re- to show reasonableness of his alcohol or drug abusers who are in quirements of suprise and injury for apprehension that he was in treatment or seeking treatment. impeaching one's own witness. danger for self-defense 2. Similar protection, hbwever, may be 3. Should still bar calling hostile wihms purposes. obtained by hiring the doctor as an for primary purpose of using im- agent of the attorney to assist in peachment as a subterfuge to avoid Rule 6090. Impeachmeut by Evidence preparing a defense. This would in- the hearsay rule. See UnitedStates v of Conviction of Crime: Notice. voke the attorney-client privilege Hogan, 763 F.2d 697,701-03 (5th Cir. 1. A witness may not he impeached by under Rule 503. 1985). a prior conviction unless, upon timely written request specifying the Rule 412. Evidence of Previous Sexual Rule 802. Hearsay Rule. witness, notice of intent to use such Conduct. 1. Inadmissible hearsay which is admit- evidence is given in advance. 1. Reputation or opinion evidence as to ted without objection has probative the past behavior of an alleged victim value and, thus, will be considered in Rule 803(24). Hearsay Exceptions: State- of sexual assault, aggravated sexual assessing sufficiency of the evidence. ment Against Interest. assault, or attempt to commit such 2. Query: Will inadmissible hearsay a+ 1. Hearsay statements are admissible if crimes is totally inadmissible. tnitted over objection have probative statements: 2. Specific instances of past sexual value? A. Are so contrary to declarant's behavior are admissible if the matter ecuniary or proprietaty in- is raised in camera, the probative Rule 405(a). Methods of proving emt; or value of the evidence outweighs its un- Character: Reputation or Opinion. B. i o far tend to subject'1 declarant fair prejudice, and it is evidence: 1. Character witnesses are no longer to civil or criminal liadility; or A. necessary to explain or rebut restricted to reputation testimony, but C. So far tend to render a claim prosecution medical or scien- may give personal opinions as to by hi& against another invgid; tific evidence; or character. or B. of past sexual behavior with the 2. When character witnesses give an D. So far tend to make the accused offered on the issue of opinion, they may be cross-examined declarant the object of hatred, consent; or with "Do you know" questions about ridicule, or disgrace, that a C. relating to the motive or bias of specific conduct, not just "Have you reasonable man in the the alleged victim; or heard" as in the past. declarant's position would not D. of a prior criminal conviction 3. Character witnesses may not testify have made the statement unless admissible for impeachment unless prior to the date of the offense true. under Rule 609; or the witness was substantially familiar 2. Declarations against penal interest E. that is required to be admitted with the defendant's reputation. must also possess corroborating cir- by the Constitution. Query: Does this limitation apply to cumstances which clearly indicate the

June 1986 1 VOICEfor the Defense 15 The Last Word Persuading the Jury Not to Return a Death Verdict

by Ray E. Moses

Introduction Examples of Arguments in Opposition to a Death Verdict "The undiscovered country, from whose I bourne No traveller returns." NOTE: None of these examples is con- Shakespeare tained in Moses, Final Argument in 1 Hamlet Criminal Cases-A Texas Lawyers Guide. Those who have a copy of that manual may The Legal Defense Fund recently want to insert this column in the section reported that as of December 20, 1985, dealing with capital punishment. there were 1,642 people on Death Row na- tion wide. Over 200 of these individuals (Which political reginies execute) reside in the Texas Department of Correc- Execution is popular in quite a few coun- tions. It is a plain fact that many defenders tries. (Cite examples, e.g., Ayatollah Kho- can practice a life-time without being in- meini Regime, South Africa, China, Third volved in a capital case. Even though the World Nations, military coups, etc.) Aren't number of lawyers involved is relatively those outstanding examples of civilized small, the stakes at risk in capital trial countries where you would like to live? Of litigation make it the ultimate test of the course, the Scandanavians, the Israelis, the defense advocate's ability to convince and Ray Moses, a board certified specialist English and the countries of Western persuade a jury. in Houston, received law degrees fro111 Europe don't rely on capital punishment. Texas, North~vesternarul S.M. U. He is the Are they really so uncivilized? Arguing Against the author of three books in the Taas Lawyer's Death Penalty Guide series-Scientific Proof in Criminal (Justice measured by how it treats the Cases, Criminal Defense Sourcebook and lowest-defense argument) Final Argument in Criminal Cases. Moses Justice in a society is measured more by Although Justices Breunan and Marshall currently teaches criininal trial advocacy continue to adhere to their view that the how it treats its worst men than how it at South Texas College of Law and acts as treats its best. (Source: Steven Feldman, calculated killing of a human being by the a defense coitsrrltant. State involves, by its very nature, an ab- San Diego, California) solute denial of the executed persons humanity, capital punishment is very much nlent of justice through law. The defender (Killing people who kill people-story of a part of the criminal justice system in who prepares for a penalty argument in a childreu and slogarr buttort-defertse Texas and thirty-six other states. Lashed capital case must address these values in argrrmerzt) by criminal violence, beset by fear at home a way that convinces the jury that neither I take my children to church on Sunday and in the streets, furious at the beastial- the legitimate purposes of punishment nor and I have tried to instill in them that it is ity of many murders, a majority of the necessity justify the imposition of the death wrong to kill. A few years hack when the citizenship appears to support capital penalty in the case at bar. For this reason debate on the death penalty in this state was punishment. In short, the death penalty is we have chosen topresent examples ofjury before us, there were some buttons worn back. arguments in opposition to a death verdict. by people who were opposed to capital To engage in debate over the necessity The reader will note that a substantial punishment. My children each had one of and the admissability of the death penalty number of the examples are geared to the those buttons. They came up here the other is to touch on values of highest importance: California practice where life without day to hear their father argue for a man's the sanctity of human life, the preserva- parole is the alternative to death in capital life. One of them, my (state the ttante and tion of order in society and the achieve- cases. cmmaoed OH page 17

16 VOICE for the Defense /June 1986 DECISIONS EDITOR: Kerry P. FillGerald ASSOCIATE EDITORS: Richard A. Andcnon David L. Botsford Calhcrine Orecne Rurnell Bill Claspy Walter C. Prenticc Stanley I. Weinberg

BQJJXQQ~Y, Elym, 106 S.Ct. 1340(March 26, 1986) Justice Marshall. PRISONER WAS NOT DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN, AT HIS FIRST TRIAL WITH FIVE CO-DEFENDANTS, CUSTOMARY COURT ROOM SECURITY FORCE WAS SUPPLEMENTED BY FOUR UNIFORMED STATE TROOPERS SITTING IN FIRST ROW OF SPECTATORS SECTION: On August 4, 1975, nine masked men entered a bondea' vault company and committed a robbery netting $4Million in cash and valdables. Nine were indicted. The defendant and five others were involved in this trial. All had been denied bond. Because of the shortage of security personnel, four additional uniformed State troopers were placed behind the bar to supplement the security forces on a two to one ratio with the number of defendanto on trial. Initially, the Court did acknowledge that central to the right to a fair trial under the Sixth and Fourteenth Amendments, is the principle that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody or other circuflstances not adduced as proof at trial. Tmylor y, L(en&p_c)(y,436 U.S. 478(1978). This does not mean, however, that every practice tending to single out the accused from everyone else in the courtroom must be struck down. The Court held that the conspicuous, or at least noticeable, deployment of security personnel in a courtroom during trial is not the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest specific to each trial. There are a

June 1986 1 VOICEfor the Defense SDR-1 wide variety of inferences that a juror might reasonably draw from the officers presence. Many of the jurors' responses during voir dire indicated the belief that the officers were there for security purposes. I do not believe the issue is moot in the future. Much depends upon how the security officers are deployed within the courtroom and whether a concerted effort is made to prejudice the defendant's right to a fair trial.

DEATH PENALTY CASE-CONVICTION REVERSED BY CALIFORNIA SUPREME COURT BECAUSE OF JURY INSTRUCTION FOUND TO BE INCOMPATIBLE WITH SEVERAL SUPREME COURT CASES REQUIRING SENTENCER IN A CAPITAL CASE BE ALLOWED TO CONSIDER MITIGATING FACTORS: The California Supreme Court invalidated the Defendant's death sentence in a case in which the Defendant was convicted of first degree murder of a fifteen year old girl. Based its decision on the belief that a jury instruction given during the sentencing phase, which told the jury that it must not be suaded by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling violated the Eighth Amendment to the United States Constitution and was incompatible with &~&e!Sz L U,438 U.S. 586(1978) and Fddhgs Y, s?kL&pm,455 U.S.104 (19821, which in turn construed the Eighth amendment to require that the sentencer in a capital case be allowed to consider as a mitigating factor any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Justice Rehnquist thought it likely that four members of the Court would vote to grant Certiorari to review the California Supreme Court's holding and that the decision below, ultimately would be reversed. He thus held that the State was entitled to a stay of enforcement of the judgment, pending decision on the State's Petition for Cert. What is also interesting is the set of jury instruction, which under California law, permitted the defendant to introduce evidence at the sentencing phase as to any matter relevant to mitigation including but not limited to the nature and circumstances of the present offense, the defendant's character, background, history, mental condition, and physical condition. See Wf,~x~idPZQBL MeALIDQ~~L~~, Sec.l90.3(West 1978). In part the statute stated that in determining the penalty, the trier of fact shall take into account any of the following factors if relevant--beginning with the circumstances of the crime and including eleven separate factors. The last several factors included the defendant's age at the time of the crime, whether or not he was an accomplice to the offense, and his

SDR-2 VOICE for the Defense /June 1986 participation in the commission of the offense was relatively minor, and any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime. Presumably, with such instructions the evidence may be tailored to answering relevant jury instructions. This is one of the fatal flaws within the Texas procedure but the argument has fallen upon deaf ears in all quarters so far.

W UkY, 2, 6.. Y~&Q _ID_c.., 106 S.Ct. 161O(April 22, 1986). Justice Rehnquist. SEARCH WARRANT--OBSCENITY CASES: Supreme Court held that application for warrant authorizing seizure of materials presumptively protected by the First Amendment should be evaluated under same probable cause standard used to review warrant application generally, and that affidavits describing films seized, adequately establish probable cause with respect to second of three elements of obscenity under New Pork Statute. ******

L I?IDi&side, 106 S.Ct. 988 (February 26, 1986).

DEFENSE COUNSEL'S CONDUCT IN THE FACE OF CONTEMPLATIVE CLIENT PERJURY DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL: The defendant continuously told his attorney that he was convinced the decedent had a gun before he stabbed him but that he had never seen the gun. The defendant was concerned that if he did not say he saw a gun, he was "dead". Shortly before trial, the defendant told his attorney that he saw something metallic in the'decedent's hand, whereupon the defense attorney told him he would not suborn perjury and would withdraw if the defendant made up that kind of story at this late date. The defendant did testify and denied actually ever seeing a gun and then brought this writ action claiming that defense counsel denied the effective assistance of counsel and put him in an untenable position at trial. The Court ultimately held that ineffective assistance of counsel was not shown under &~i~bLapdy, l@sfih&~n,466 U.S. 668 104 S.Ct. 2052 80 L.Ed.2d 674. In a very lengthy opinion with many concurring opinions, it was ultimately found that defense counsel did the right thing. I am not sure that the defense bar has been illuminated in the least by this opinion but the following are bits and pieces for our consideration.

At a minimum defense counsel's first duty when confronted with a proposal for perjurious testimony is to attempt to dissuade the client from the unlawful course of action.

June 1988 / VOICE for the Dafene SDR-3 The Model Rules and the Code of Professional Responsibility of Iowa permit withdrawal from representation as an appropriate response of an attorney when a client threatens to commit perjury. The American Bar Association Amicus Brief stressed that under no circumstances may a lawyer either advocate or passively tolerate a client's giving testimony. I am not sure that we are any further than we were when we started, i.e., please don't lie, Mr. Client. If you lie, I will withdraw. Ultimately the client decides to tell the second story which defense counsel "judges" to be perjury and outside the presence of the jury makes a motion to withdraw. In the presence of the jury, does the defendant question himself or does defense counsel perform the necessary charade? I think that Justice Burger's majority opinion leaves a lot to be desired. Justice Blackmun's concurring opinion(in which Justice Brennan, Marshall and Stevens joined) is more to the point. But let's face it, we all need the benefit of the entire opinion to give us a little direction as to what is expected of us.

y, fl@gJeygi, 106 S.Ct. 1032 (February 26, 1986) Justice White DOUBLE JEOPARDY CLAIk CURED BY REDUCTION OF SECOND CONVICTIOD TO LESSER INCLUDED OFFENSE: The defendant and another man, Daugherty, robbed a bank in Ohio. After an automobile chase, the police surrounded the two men when they stopped at farm house. The police heard shots fired inside the house and the defendant emerged from the house and surrendered. The police entered the house, found Daugherty dead, having been shot once in the head and once in the chest. The police found the money stolen from the bank in the pantry. The coroner's report initially ruled Daugherty's death to be a suicide. The defendant was charged with aggravated bank robbery, to which he pled guilty. Two days after entering his guilty plea, the defendant admitted having shot Daugherty. The State next charged the defendant with aggravated murder of Daugherty. The defendant's double jeopardy motion was overruled and defendant was convicted. Ultimately, the Ohio Court of Appeals, finding that the double jeopardy clause barred the defendant's conviction for aggravated murder, modified that conviction to that of the lesser included offense of murder. Through the writ stage, this case ultimately found its way to the United States Supreme Court, which held that when a jeopardy barred conviction is reduced to a conviction for a lesser included offense which is not jeopardy barred, the burden shifts to the defendant to demonstrate a reasonabje

SDR-4 VOICEfot' fhe Defense /June 1986 probability that he would not have been convicted of the non- jeopardy barred offense absent the presence of the jeopard barred offense. In this situation, the Court believed that a ! "reasonable probability" was a probability sufficient to undermine confidence in the outcome. SLckhland YA Haabir!gfaar i 466 U.S. 668.

Ih.&ed Skates YA De~handk, 106 S.Ct. 938(February 20, 1986) Justice Rehnquist

A JURY VERDICT OF GUILTY RENDERED HARMLESS ANY VIOLATION OF RULE 6 (dl.

A federal grand jury indicted defendants with drug related offenses and conspiracy. This indictment was free from any claim of error. The grand jury then returned a superseding indictment in which the conspiracy charge was expanded. In support of this superseding indictment, the United States attorney presented the testimony of two law enforcement agents who were sworn together and questioned in tandem before the grand jury. The defendants did not learn about this joint testimony until after trial began. Before trial, they filed an Omnibus Motion requesting, interalia, the names of all the people who appeared before the grand jury, the government responded that there were no unauthorized persons appearing before the grand jury and the district court denied the motion. During the second week of trial, after the defendants were furnished the grand jury testimony, it became clear that the two agents had testified in tandem before the grand jury. The defendants moved for dismissal of the indictment on the ground that the simultaneous presence of the two agents violated Federal rule of criminal procedure 6(d). The notion was overruled. The defendants were convicted by the jury. Subsequently, a different judge found the violation of Rule 6(d) but found the violation to be harmless in view of the zvidence.. The Supreme Court declined to accept the Court of Appeals view that a violation of Rule 6(d) required automatic reversal of the subsequent conviction regardless of the lack of prejudice. Federal Rule of Criminal Procedure 52(a) provides that errors not affecting substantial rights shall be disregarded. This rule should be applied to errors, defects, irregularities or variances occurring before a grand jury just as the rule is applied to error occurring in the criminal trial itself. Thus, measured by the jury verdict, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt. No opinion was expressed as to what remedy may be appropriate for a violation of Rule 6(d) that has affected the grand jury's charging decision and js brought to the attention of the trial court before the commencement of trial. The Court clearly distinguished the case of Y~SQUEZ L I!lur106 S.Ct. 617(1986) in which the Court set aside a final judgment of conviction because of racial discrimination in the composition of the grand jury that indicted the defendant.

NWl XPEk Yz GLasa, 106 S. Ct. 960 (February 25, 1986) Justice OIConner SEARCH AND SEIZURE-POLICE OFFICERS REACHING INTO VEHICLE TO REMOVE PAPERS OBSCURING VEHICLE IDENTIFICATION NUMBER WAS A PERMISSIBLE SEARCH: Police saw defendant speeding in a car with a cracked windshield, both traffic violations under New York law. The defendant did provide registration certificate and proof of insurance but did not have a driver's license. The officer opened the car door to look for the VIN located on the left door jamb and when he did not find it, he reached into the interior of the car to remove some papers obscuring the area of the dashboard where the VIN is located and in so doing saw the handle of a gun protruding about one inch from under the driver's seat. The officer seized the gun and arrested the defendant. In order to observe a vehicle identification number(V1N) generally visible from outside an automobile, a police officer may reach into the passenger compartment of a vehicle to move papers obscuring the VIN after its driver has been stopped for a traffic violation and has exited the car. In these circumstances, the officer's actions does not violate the 4th Amendment. The Court emphasized the safety of the officer and the very little intrusiveness of the search. The Court held that this search was sufficiently unintrusive to be constitutionally permissible in light of the lack of a reasonable expectation of privacy in the VIN and the fact that the officers observed the defendant commit two traffic offenses. But the Court did culminate the opinion as follows: "We note that our holding today does not authorize police officers to enter a vehicle to obtain a dashboard dashmounted VIN when the VIN is visible from outside the automobile. If the VIN is in the plain view of someone outside the vehicle, there is no justification for governmental intrusion into the passenger compartment to see it".

YA _M_cmll~ggh,106 S. Ct. 976(February 26, 1986) ~dsticeBurger. INCREASED SENTENCE UPON RETRIAL NOT VINDICTIVE: Defendant was tried before a jury in a Texas District Court and convicted of murder. He elected to be sentenced by the jury, as was his right under Texas law, and the jury imposed a 20-year

SDR-4 VOICEfor the Defense /June 1986 sentence. The trial judge then granted Defendant's motion for a new trial on the basis of prosecutorial misconduct. Defendant was retried before a jury, with the same trial judge presiding, and again was found guilty. This time he elected to have the judge fix his sentence, and she imposed a 50-year sentence. To justify the longer sentence, the judge entered the following 1g findings of fact: the testimony of two state witnesses who had not testified at the first trial added to the credibility of the I State's key witness and detracted from the credibility of the defendant and a defense witness; the two new witnesses' testimony I directly implicated defendant in the commission of the murder and shed new light upon his life and conduct; and it was learned for I the first time on retrial that defendant had been released from 1 prison only four months before the murder. The Texas Court of Appeals reversed and sentenced defendant to 20 years imprisonment, considering itself bound by NnrLh CamJ&a L Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, wherein it was held that the Due process Clause of the Fourteenth Amendment prevented increased sentences on retrial when the increase was motivated by the sentencing judge's vindictiveness, and that to show the absence of vindictiveness the reasons for imposing the increased sentence must affirmatively appear. The Texas Court of Criminal Appeals, while holding that, as a matter of procedure, the case should have been remanded to the trial judge for resentencing, also held that under Eearce vindictiveness must be presumed even though a jury had fixed punishment at the first trial and a judge had fixed it at the second trial. Held: The Due Process Clause was not violated by the trial judge's imposition of a greater sentence on retrial. The facts of this case provide no basis for a Pearce presumption of vindictiveness. In contrast to Pg~r;g, defendant's second trial came about because the trial judge herself concluded that the prosecutor's misconduct required it. Granting defendant's motion for new trial hardly suggests any vindictivness on the judge's part toward him. The presumption is also inapplicable because different sentencer~assessed the varying sentences, the second sentencer providing an on-the-record, logical, nonvindictive reason for the longer sentence. Even if the wepresumption were to apply here the trial judge's findings on imposing the longer sentence overcame that presumption. Those findings clearly consitututed "objective information justifying the increased sentence," Wed S&&e& YJ LiOPdyinr457 U.S.368, 375, 102 S.Ct. 2485,2489, 73 L.Ed.2d 74. The perils that this opinion present are totally without boundary. Imagine the unbridled discretion left for the prosecution, to say nothing of the need for good faith on the

June 1986 !VOICEfor he Defense SDR-7 Debra K. Voelkel, No. 339-82 - Opinion on Appellant's PDR: Judgment ofof Appeals Affirmed - Judge Tom G. Davis -

WARRANTLESS SEARCH OF DEFENDANT'S BELONGINGS FOLLOWING FRISK OF ~ERCOMPANION IN MOTEL ROOM WASVALID UNDER THE FOURTH AMENDMENT. ZLLEGAL CONTRABAND FOUND IN A CONTAINER IN DEFENDANT'S BELONGINGS ,ADMISSIBLE TO SUPPORT REVOCATION OF FELONY PROBATION: Defendant checked into motor inn in Fort Worth, paying rent in advance each day for the next day. Manager apparently got upset because Defendant parked a Harley-Davidson motorcycle inside her room and had a male friend stay with her. Before check-out time ibn the fourth day, the manager told Defendant three times that he had to be out by check-out time. Two hours after the appointed hour, the Defendant not having vacated nor showing any pigns of leaving, the manager called the police for officer ~ssistanceto evict Defendant. Two officers went to the room kith the manager to tell Defendant she had to leave. When Defendant opened the door and said she was packing and in the process of getting out, the manager stepped in, along with one officer. He testified he saw a male guest in the room and a large scale with drawers that contained syringes in them and a large pharmaceutical bottle containing tablets. When the officer stepped into the room, the Defendant reached for the scales and was told to 1'freeze.tt The officer frisked Defendant and the second officer frisked her male guest. Nothing was found on Defendant, but a gun and marijuana was discovered on the male guest. Police handcuffed them both and searched the whole room. Amphetamine was found inside a cigarette case in a plastic elothing bag on the bed. BFFICER'S PRESENCE IN ROOM DID NOT INFRINGE ON DEFENDANT'S FOURTH AMENDMENT EXPECTATION OF PRIVACY: Defendant had a greatly diminished expectation of privacy in the motel room when the officers arrived to help in her eviction. Under the circumstances, the manager had a right to enter the room, see United States v. Parizo, 514 F2d 52 (2d Cir. 1975). The officers bei%iTnere- at the manager's- invitation also had a right to enter. PROBABLE CAUSE EXISTED FOR SEARCH OF DEFENDANT'S BELONGINGS: The officers, at the time they entered the motel room, did not have sufficient articulable suspicion required under Terry, to frisk defendant and her companion. Even if there was cause to frisk Defendant, there was no constitutional warrant for the second officer's simultaneous frisk of Defendant's male guest who was just sitting in the room. However, after the frisk of the companion turned up a gun and marijuana, added to the open display of drug-related paraphernalia and Defendant's reaching for the scales, police were given probable cause to search the entire room, including items on the bed.

SDR-8 VOICE for the Defeme /June 1986 DEFENDANT HAD NO STANDING TO COMPLAIN, ANYHOW: Even if the frisk of the male guest was improper under the Fourth Amendment, Judge Davis blithely notes that the Defendant had no standing to complain about it because her rights were not infringed by it, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 (19631, and his search was not caused by any infringement of Defendant's rights. Probable cause existed to search Defendant's belongings.

Judge Clinton, in dissent, notes that even if the majority conclusion that probable cause existed to search Defendant's belongings is correct, the inquiry would not end there. Without some showing of exigency, a warrant would still be required, under United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476 (1977), and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586 (1979). Also, the search of the room, including Defendant's clothing bag, was not a valid search incident to the arrest of Defendant and her companion, as the Court of Appeals had held. Defendant's clothing bag was on the bed, and there is no evidence Defendant or her companion moved toward it before being handcuffed. There is not enough indication that the search of the clothing bag at the scene was justified. In a separate dissent, Judge Teague questions how the results of the pat down and frisk of Defendant's companion gave the police officers authority to conduct a warrantless search of the unopened clothing bag, and demonstrates at length his case aga-inst what he sees as the majority's mistreatment of the facts of the case, to implicitly rely partly on some form of I1plain viewt1 doctrine to support the conclusion that probable cause existed to conduct a warrantless search and seizure of Defendant's unopened clothing bag, although none of the items seen were per se illegal to possess. He finds that the majority has approved a dragnet search and seizure of a motel room and an unopened clothing bag found there, a tactic which the courts have in the past condemned.

Jessie Flores Santibanez, No. 994-82 - Opinion on Appellant's PDR: Judgment of Court of Appeals reversed/remanded to trial court with instructions to dismiss - Judge Teague - 5/14/86 CONTINUANCE TIME GRANTED STATE IN MURDER CASE BECAUSE DISTRICT

ATTORNEY'S OFFICE- IN TAYLOR COUNTY LACKED SUFFICIENT ATTORNEYS. INVESTIGATORS AND SECRETARIAL STAFF TO TRY CASE WAS NO? EXCLUDABLE FROM SPEEDY TRIAL ACT. STATE'S FIRST ANNOUMCEMENT OF READY ON REINDICTMENT 168 DAYS AFTER DEFENDANT1*S ARREST DID NOT COMPLY WITH ACT. TRIAL COURT ERRED IN DENYING MOTION TO DISMISS INDICTMENT: Defendant was arrested on April 25, 1981, for murder. Two days later a complaint was sworn to before the Taylor County DA by one of her investigators, alleging Defendant caused victim's death by

June 1986 1 VOICE for the Llefme SDR-9 stabbing him with a knife. Defendant was indicted on May 8, 1981, for murder of the same victim, alleging that death was caused by shooting him with a gun. No explanation given for the discrepancy. Trial was set for the week of August 17, 1981, but on August Ilth, the DA filed a motion for continuance claiming that the trial docket was overly crowded with at least 20 other defendants awaiting trial the same week, that she would be in trial on another case on August 17th, had spent most of her time preparing for trial on three other felony cases, and that she ''had also been actively engaged in interviewing prospective applicants to fill two positions in the office of Criminal District Attorney of Taylor County which are now vacant1'; that such vacancies had "also increased the burden on the remaining staff to the point that the State of Texas cannot answer ready on all cases set at the present time." The district attorney also testified that she did not have the services of two secretaries, that her duties caused her to have to appear before the Commissioner's Court, represent county employes in Federal Court, and perform duties as chairman of the Taylor County Bail Bond Board. On that date, the DA had five assistants, three of whom were qualified to try Defendant's case. The motion for continuance was granted and trial reset to October 13, 1981. While preparing for trial, the DA realized the indictment was incorrect in its descriptive averments about the means used in causing death. Defendant was then reindicted on October 9, 1981, with the second indictment alleging he caused the death by stabbing with a hire. On the same day, on the DAIS motion, the trial court dismissed the original indictment. The case was set for trial on January 6, 1982. The first announcement of ready by the State on the reindictment occurred on reindictment day. Unless the State could bring itself under some exception or excludable period of time, without more than that 120 days had elapsed from Defendant's arrest, the commencement of the criminal action, it was obligatory on the trial judge to grant Defendant's motion to dismiss under the STA. BOTH INDICTMENTS INVOLVED THE SAME OFFENSE: The only differenee between the two indictments is a change in the descriptive averment as to the means used by Defendant in committing the offense. The motion for continuance, if good under the STA, carries forward from the first to the second indictment. Perez, 678 S.W.2d 134 (Tex.Cr.App.1981). Cf., however, Richardson, 629 S.W.2d 164 (Tex.App.-Dallas 1982). The time from when the State's motion for continuance was granted, until the State's first formal declaration of ready, will not be excluded and do not toll the period of time provided in the STA. The DA never requested a continuance for any reason

SDR-10 VOICEfor the Defense /June 1986 set forth in Art. 32A.02, Sec.4(6), C.C.P. It provides that a reasonable period of delay from a continuance for the State shall be excluded, if the continuance is granted, "(A) because of the unavailability of evidence that is material to the state's case, if the state has exercised due diligence to obtain the evidence and there are reasonable grounds to believe the evidence will be available within a reasonable time; or (B) to allow the state additional time to prepare its case and the addition time is justified because of the exceptional circumstances of the case." The State's excuses do not constitute an exceptional circumstance under Section 4 (10) of the STA. Cf. US v. Bowman, 493 F2d 594 (2nd Cir.1974); People v. Bonterre, 384 N.Y.S.2d 351 (New York Criminal Court 1976); People v. Sturgis, 354 N.Y.S.2d 968 (monroe County Criminal Court 1974). The STA provides that: "In computing the time by which the State must be ready for trial, the following period shall be excluded: any other reasonable period of delay that is justified by exceptional circumstances.~ The internal problems of the DA were not exceptional circumstances that would toll the running of the time provided by the STA. What is an exceptional circumstance under Sec. 4(10), supra, must be decided on a case by case basis because the phrase is not defined in the Act. See Lloyd, 665 S.W.2d 472 (Tex.Cr.App.1984); --Hamilton, 621 S.W.2d 4mTex.Cr.App.1981). Noting that the right of the accused to a speedy trial serves not only substantial interests of society but those of the accused as well, the opinion states that such right may not be sacrificed upon the altar of practicality and reduced public treasuries. IT IS THE RESPONSIBILITY OF THE STATE, OR ITS SUBDIVISION, TO DO WHAT IS NECESSARY TO ASSURE THAT A DEFENDANT WILL RECEIVE A SPEEDY TRIAL, AS PROVIDED BY THE SPEEDY TRIAL ACT -- BY APPROPRIATING ENOUGH MONEY AND PROVIDING ADEQUATE FACILITIES TO THE DISTRICT ATTORNEY TO HIRE QUALIFIED PERSONNEL TO ASSURE THE EFFICIENT OPERATION OF THE OFFICE: The opinion notes that The Legislature passed the Speedy Trial Act to try and speed up prosecution of criminal cases, and states that it is the Court's duty, as part of the judiciary, to see that the law's mandate i.s carried out, without being deterred because of lack of funding or staffi-ng in a district attorney's off ice. If. . .(I)f the public wants 'Speedy JusticeT for those accused of committing criminal wrongs, and in turn protection from the increasing hosts of criminal predators, it must be willing to pay for an efficient system of criminal justice; otherwise, it must be willing to sacrifice its continuing distressing cynicism, while at the same time encouraging the bulging ranks of persons accused of committing crimes remaining untried in our jails. In short, the public cannot have it both ways." For the Court of Criminal Appeals to hold that such constitutes an exceptional circumstance, Judge Teague notes, would only exacerbate societyls myriad problems with crime, criminals and criminal justice, Iffor delay only breeds more delay. To put our seal of approval on the excuses the district attorney gave in this cause, as to why the appellant's cause should be continued, would amount not only to thwarting the intent of the Legislature in its enactment of the Speedy Trial Act, but would undermine the effectiveness of the Act, the purpose of which is to insure that prosecutorial delay will not thwart the prompt trial of criminal cases." Judge Clinton, while concurring in the judgment of the Court, feels that the question posed and answered by the majority opinion is too broad and was not one considered by the Court of Appeals. Stating that the Court of Appeals fell into error in finding that the crowded condition of the trial docket was an exceptional circumstance under the STA, Judge Clinton notes that the Court of Criminal Appeals is not required to address other reasons State assigned for not being ready for trial. The crowded docket condition was the sole basis on which the Court of Appeals overruled Defendant's one ground of error. Judge W. 6. Davis, in dissent, joined by Judge White, warns prosecutors to beware! If circumstances shown in this case are not Mexceptional," it will be the rare case indeed where they are held to be.

Kimberly Diane Hudgens, No. 927-84 - Opinion on State's PDR: Judgment of Court of Appeals remanding for new trial reformed/remanded to trial court for reassessment of punishment only - PER CURIAM - 5/14/86

SDR-12 VOICE for the Defense /June 1986 SENTENCING DEFENDANT UNDER INVALID LAW PROVIDING A HIGHER RANGE OF PUNISHMENT DOES NOT AFFECT COURT'S FINDING OF GUILT. THE ONLY ISSUE REMAINING IS PROPER PUNISHMENT: Defendant was charged with possessing more than five but no more than 50 pounds of marijuana, a second degree felony under the 1981 amendment to the Controlled Substances Act, declared unconstitutional in Ex Parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983). He received a 10-year probated sentence. Under the prior law this was a third degree felony. Dallas Court of Appeals remanded Defendant's case for a new trial. Hudgens, 675 S.W.2d 588 (Tex.App.-Dallas 1984). Proper action, however, where trial court assesses punishment is to remand for resentencing. Court of Criminal Appeals follows reasoning in Ex Parte Gibautich, 688 S.W.2d 868 (Tex.Cr.App. 1985) that the higher penalty range that was still in effect "exerted on the court's discretion a distinct pressure toward a higher punishment; that is, toward the maximum provided by the pre-amendment act."

Victoria Barnette, No. 1011-84 - Opinion on State's PDR: Judgment of Court of Appeals Reversed/Trial Court Judgment Affirmed - Judge Clinton - 5/14/86 DEFENDANT NOT ENTITLED TO REQUESTED CHARGE ON CONCURRENT CAUSE NOR ALTERNATIVE CAUSE IN DEATH OF INFANT SON TRIED ON THREE COUNTS OF MURDER AND RECKLESS AND NEGLIGENT INJURY TO A CHILD: Defendant's infant son died as a result of being burned by hot water. State had two theories - that Defendant intentionally placed baby in tub of scalding hot water, or recklessly or negligently left baby in tub of lukewarm water, aware of risk of baby turning on hot water faucet and injuring himself. Jury was charged on both theories and all three offenses.

CONCURRENT CAUSE NOT RAISED BY EVIDENCE: Trial court also gave charge on concurrent cause under Sec. 6.04(a), T.P.C., to which Defendant objected for failure to apply this to the facts and requested a charge instructing the jury that: "(i)f you find or have a reasonable doubt that the minor child . . . turned on the hot water thereby causing his own death and that such act was clearly sufficient to produce the result and that the act of the defendant in placing the child in the tub was clearly insufficient then you will find the defendant not guilty."

Court of Appeals correctly held Defendant not entitled to charge on concurrent cause and failure to apply that law to the facts was not error. Concurrent cause not raised by evidence.

June 1986 1 VOICE for the Defense SDR-13 Defendant's theory as to murder was that she left her baby alone and he caused his own injury. This is not a concurrent cause but an alternative cause. To the injury to child charges, the facts in Defendant's requested charged were consistent with guilt under State's theory. Under any version of evidence, Defendant's requested charge properly refused. DEFENDANT NOT ENTITLED TO CHARGE ON ALTERNATIVE CAUSE - NOT AN AFFIRMATIVE DEFENSE : Court of Appeals reversed Defendant's conviction for murder because the requested instruction was enough to apprise the trial court of the need for a charge on Defendant's alternative cause theory, an error the majority says was not raised by the Defendant in the Court of Appeals. The Court of Appeals held that a defendant is entitled to an affirmative defense instruction on every issue raised by the evidence, citing --Warren, 565 S.W.2d 931 (Tex.Cr.App.1978). The majority doubts if a specifically requested charge on concurrent cause is enough to alert a trial court to the need for a charge on "alternative1, cause, an entirely different question, but determines that it does not have to decide the case on that basis because Defendant was not entitled to the charge, anyhow. An "alternative cause," is not a justification or defense set out in chapters 8 and 9 of the Penal Code because it denies an element of the State's case. It is simply a different version of the facts, which negates at least one element of prosecutionls case. "The denial of a defendant's requested instruction is not error where the requested instruction is merely an affirmative submission of a defensive issue which merely denies the existence of an essential element of the State's case." Green, 566 S.W.2d 578 (Tex.Cr.App.1978); Cannon, 691 S.W.2d 664 (Tex.Cr.App.1985).

Ex Parte Kenneth Wayne Stacey, No. 1153-84 - Opinion on State's Motion for Rehearing: MRH Granted/Judgment of Court of Appeals trial court Reversed/Remanded to trial court - Judge Miller - 5/14/86 (Original opinion delivered 2/19/86) ORDER OF REFERRAL BY DISTRICT JUDGE TO DALLAS MAGISTRATE THAT HEARD EXTRADITION CASE "INAPPLICABLEN AND INEFFECITVE. CONCURRING OPINION ON ORIGINAL SUBMISSION ADOPTED AS MAJORITY OPINION ON REHEARING.

Roy Dean Tolley, No. 119-85 - Opinion on State's PDR: Judgment of CourtafAppeals Reversed/Remanded to consider Appellant's other grounds of error - Judge White 5/14/86

SDR-14 VOICE for rhe Defense / June 1986 EVIDENCE OF POSSESSION BY DEFENDANT OF PROPERTY SHOWN STOLEN BY NON-ACCOMPLI CE TESTIMONY SUFFICIENT TO CORROBORATE ACCOMPLICE TESTIMONY TO PROVE DEFENDANT'S GUILT IN BURGLARY CASE: Dallas Court of Appeals reversed Defendant's conviction and ordered an acquittal, finding evidence corroborating accomplice testimony not enough to support conviction, citing OfDonald, 492 S.W.2d 584 (Tex.Cr.App.19731, as controlling. Majority of Court of Criminal Appeals finds that Dallas Court of Appeals erroneously applied the rule on accomplice testimony. The facts that the Court of Appeals felt were not enough to corroborate the accomplice testimony were that Defendant was in the presence of the accomplice some hours after the crime; they had joint possession of the stolen guns; and Defendant accepted a check for the weapons. The key factor in this case is the joint possession of stolen guns. The majority opinion holds that the non- accomplice testimony of the complaining witness and the purchaser of the weapons, indicated the firearms Defendant jointly possessed were stolen. O'Donald, supra, and Meyers, 626 S.W.2d 778 (Tex.Cr.App.m82),also cited by the Court of Appeals for the test to decide on sufficiency of corroborating evidence, are not in point because they do not discuss the question if possession of stolen property is enough to corroborate accomplice testimony. In a concurring opinion, Judge Teague notes that the evidence was sufficient even without the accomplice witness testimony.

Leroy R. Panelli, No. 148-85 - Opinion on Staters PDR: Judgment of Court of Appeals Affirmed - Judge Clinton - 5/14/86 DEFENDANT'S NOTICE OF APPEAL BEFORE OVERRULING OF MOTION FOR NEW TRIAL, THOUGH PREMATURE, EFFECTIVE TO GIVE COURT OF APPEALS JURISDICTION TO ADDRESS DEFENDANT'S APPEAL: After revocation of probation, Defendant filed MNT and written notice of appeal on same day. MNT was overruled one week later but no new notice nf appeal given. There is no conflict between Art. 44.08(b),C.C.P., and Rule 306c, Texas Rules of Civil Procedure. Art. 44.08(b) states: IfNotice of Appeal shall be filed within 15 days after overruling of the motion or amended motion for new trial. . . 11 Rule 306c states that notice of appeal will be effective even if given prematurely. This interpretation carries out the clear intent behind Rule 211, Texas Rules of Post-Trial and Appellate Procedure, that went in effect in 1981:

June 1986 1 VOICE for the Defense SDR-15 "Where not inconsistent with the Code of Criminal Procedure and these rules, as they now exist or may hereafter exist, the Rules of Civil Procedure shall govern proceedings in the courts of appeals in criminal cases." The Court notes that this question will be explicitly answered by the new Rule 4l(c), Texas Rules of Appellate Procedure, which go into effect on September 1, 1986, but do not form a basis of this decision.

John Wayne Darty, No. 334-85 - Opinion on State's PDR: Judgment of Court of Appeals Reversed/Trial Court affirmed - Judge White - 5/14/86 WITHOUT AN OBJECTION AND ADVERSE RULING APPEARING IN THE STATEMENT OF FACTS, ANY ERRONEOUS ADMISSION OF EVIDENCE IS NOT PRESERVED FOR REVIEW: Defendant contended and the Court of Appeals held that the trial court was wrong in admitting a letter into evidence, over Defendant's objection, written by complainant to Defendant. The objection was that there was no proper predicate and that the letter was inadmissible hearsay. But, the trial court never made a ruling on Defendant's objection.

The admission of evidence over objection does not imply that the objection was overruled, and the error preserved, when there is no precise ruling by the trial court in the record. Without that adverse ruling appearing of record, such admission of evidence does not preserve error. Majority opinion state's that Defendant's attorney should have required the trial judge to make a definite ruling on the record, citing Evans, 622 S.W.2d 866 (Tex.Cr.App.1981); Stoner, 585 S.W.2d 750 (Tex.Cr .App. 1979) ; Hanner, 572 S.W.2d 702 (Tex.Cr.App.1978); also Mejia, 505 S.W.2d 532 (Tex.Cr.App.1974); Torres, 491 S.W.2d 126 (Tex.Cr.App.1973); and Austin, 451 S.W.2d mfex.~r.App.1970).

Dennis Michael McCambridge, No. 1086-85 - Opinion on Appellant's PDR: Judgmenrof Court of Appeals Affirmed/Remanded to Court of Appeals for consideration of State grounds of error - Judge Campbell - 5/14/86 DWI SUSPECT DID NOT HAVE SIXTH AMENDMENT RIGHT TO COUNSEL WHEN FACING BREATH TEST. QUESTION OF RIGHT TO COUNSEL UNDER FOURTEENTH AMENDMENT AND TEXAS LAW REMANDED FOR DECISION TO COURT OF APPEALS:

SDR-16 VOICE for fhe Defense /June 1986 USE OF BREATH SAMPLE AFTER DWI WARNING DOES NOT VIOLATE MIRANDA AND EDWARDS, EVEN WHERE SUSPECT RESPONDS TO MIRANDA- WARNINGS BEFORE TEST BY ASKING FOR COUNSEL:

Defendant on being arrested for suspicion of DWI asked for an attorney at the scene and was told he would have to wait until he was downtown before receiving aid of an attorney. He was taken to a videotaping room and was given his Miranda warnings when taping began. Defendant said he wanted to talk with his attorney and was given an opportunity to contact counsel by telephone, with police officers present throughout the call. The attempt was not successful. Police resumed questioning Defendant and he again asked that an attorney be present. Police gave him another chance to contact counsel and this was not successful. Police resumed questioning him and Defendant asked for an attorney seven times. The police continued questioning him. On Defendant's 11th request for an attorney, police abruptly stopped videotaping and took Defendant into a hallway. There, they asked him repeatedly if he would give them a breath sample. Defendant kept requesting an attorney and after 5 to 10 minutes agreed to provide the sample for the intoxilyzer. Before taking the sample from him, the intoxilyzer operator advised Defendant of the required statutory breath test warnings. Complaint and information were filed against Defendant a day later. Trial court suppressed audio portion of the videotape but not the rest of the tape and denied Defendant's motion to suppress the results of the intoxilyzer test.

NO DENIAL OF SIXTH AMENDMENT RIGHT TO COUNSEL: Noting that the Court had recently in Forte, -S.W.2d (No. 387-85, opinion delivered 4/9/86), heldght to counselunder Sixth Amendment attaches only on or after formal initiation of judicial proceedings, the majority opinion says its decision whether Court of Appeals was correct in deciding Defendant was not denied his Sixth Amendment right to counsel only depends on when formal adversary proceedings initiated, Since the complaint and information were not filed until after Defendant had provided the breath sample the police literally demanded from him, it was easy for the majority to hold the his Sixth Amendment right to counsel did not attach until the charging papers were filed.

The Court, however, again avoids malting any decision on the question of right to counsel under state law and remands the issue back to the Court of Appeals to thrash though again. BREATH TESTING DECISION BY DEFENDANT DOES NOT INVOLVE CUSTODIAL INTERROGATION NOR THE PRIVILEGE AGAINST SELF-INCRIMINATION. DEFENDANT GETS NO REMEDY UNDER MIRANDA AND EDWARDS:

June I986 1 VOZCEfor the Dl.fense SDR-17 Court has analogized the taking of blood in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826 (l966), to collecting a breath sample, see Rodriguez, 631 S.W.2d 515 (Tex.Cr.App.1982), and held that providing breath sample for chemical analysis is not a testimonial communication protected by privilege against self-incrimination under the Fifth Amendment. Also, police do not have to give a suspect Miranda warnings before asking him for a breath sample. See South Dakota v. Neville-2 459 U.S. 553, 103 S.Ct. 916 (1983). There is no difference where Miranda warnings are given by the police, then invoked by a defendant and thenignored by the police. Here, police officers did comply with Miranda, and Edwards. The trial court did suppress the audio part of the videotape because police continued to question Defendant after he invoked his right to counsel.

ABSENCE OF VIDEO-TAPE IN APPELLATE RECORD CREATES PROBLEM: However, majority quickly points out that there is nothing to indicate the continuing questioning of Defendant in this case was Ifinterrogation" under --Miranda or that the questions required any incriminating response by Defendant. Under the record presented, Defendant has not shown he was interrogated under Miranda, The majority notes that questioning "normally attendant to arrest and custody1I is not interrogation. There is no evidence to support concluding police ignored Defendant's right to have counsel present for custodial interrogation. Acknowledging that the legal difference between questioning that is interrogation and that "normally attendant to arrest and custodyu may not always be apparent, the majority agrees that in a DWI arrest case, police can create more confusion by giving Miranda warnings without telling the defendant those warnings do not apply to whether he decides to give a breath sample, but the remedy for the confusion is not found in Miranda and Edwards. (The Court keeps the location of this nostrum a mystery by not revealing it.) Also, in a breath test situation, Edwards wi1.L not be extended to require that police stop questioning a suspect on any subject, whether it is technical "interrogation" or not, once suspect asks for counsel after the Miranda warnings. Reading Edwards, the majority says, to bar police from seeking a DWI suspect's breath sample, once he's invoked his right to counsel under Miranda, would divorce Miranda from its only source of legitimacy. Tkie defendant's breath 3est decision does not involve custodial interrogation nor the privilege against self-incrimination, and:

SDR-18 VOICE for the Defense /June 1986 "A rule that focuses on preventing collection of a breath sample, merely because a defendant has been informed of his right to have counsel present if he is interrogated, would severely restrict police officers in the pursuit of lawfully collecting evidence of intoxication and, more significantly, do nothing to further protect the privilege against self- incrimination."

June 1986 1 VOICE for the Defense SDR-19 Paul STANFIELD, 755-82 - Opinion on State's PDR: Aff'd, Judge W.C. Davis, 5/7/86 PROBATION REVOCATION - D'S ABILITY TO PAY: From 1977-1981 there were two provisions of Article 42.12 Section 8(c) concerning D's burden to show his inability to pay when alJeged as ground for revocation. Overruling two cases, Court held that burden shifts to D by way of affirmative defense to show his inability to pay ONLY where the motion to revoke contains ONLY allegations that D failed to pay compensation for counsel, probation fees, court costs, restitution or reparations. If State alleges non-monetary violation as well, State must show ability to pay and intentional nonpayment. CASES OVERRULED: Watts v. State, 645 S.W.2d 461 (1983) Champion v. State, 590 S.W.2d 495 (1979) Note: The 1981 amendment contains "only" in the same context, so it is logical to assume that the same test will apply, i.e., that inclusion of non-monetary allegations as grounds for revocation will NOT shift burden to D to show inability to pay. Note: Although not implicated here [where there was commission of a forgery alleged as alternate revocation ground] Court noted that Sec. 8 (c) may be constitutionally infirm under BEARDEN V. GEORGIA, 461 U.S. 660, in which Supreme Court held that in a case where revocation of probation is sought because of nonpayment of fees the sentencing court MUST inquire into the reasons for failure to pay on 14th Amendment grounds.

Michael Espara DOMANSKI, No. 755-83 -- Opinion on D's PDR: Ref'd as Untimely Filed, Judge Clinton, 5/7/86 APPEALS -- CALCULATING DUE DATES: For PDR purposes, the "final ruling" from court of appeals is the 15 days allowed for filing motion for rehearing. Do NOT use Rule 7 at this end of the equation when computing PDR due date -- i.e., if the 15th day for "final ruling" purposes is a Saturday, the PDR is due 30 calendar days from that Saturday, NOT 30 days from the next working day. REGARDLESS ON WHAT DAY OF THE WEEK THE FINAL RULING FALLS, THAT DAY SHOULD BE USED TO COMPUTE THE THIRTY DAYS TO FILE PDR.

Scott Martel THOMAS, 1166-83 and 1167-83 -- Opinion on D's PDR: Aff 'd, Judge W. C. Davis, 5/7/86 INTERPLAY BETWEEN RENUNCIATION AND ATTEMPT: The Court granted PDR to discuss interplay between concepts of renunciation and criminal attempt holding that fact that D's conduct constituted a

SDR-20 VOICE for the Defense /June 1986 completed ATTEMPT did not prevent invocation of the renunciation defense. To hold otherwise would be to allow a renunciation defense only prior ro commission of an attempt. Under such an interpretation renunciation would be meamrGs because conduct that has not yet reached the stage of an attempt is not criminal. Thus, here the fact that screen was removed from window and scratches were made on frame shows attempt to commit burglary, however, D could still renounce the offense attempted [the burglary] even though his actions that far constituted attempted burglary.

Robert Lee HOLLADAY, 058-85 -- Opinion on State's PDR: Affr'd, Judge Teague, 5/7/86 JURY CHARGE: CHANGE IN LAW FOR ACCOMPLICE CHARGE ON CAPITAL MURDER: Here D made timely and propeE objection to t/cls failure to charge jury that if a conviction for capital murder is based on the testimony of an accomplice witness, that witness' testimony must be corroborated as to the specific elements that make the crime of murder capital murder. Ct/App reversed at 682 S.W.2d 434 (Tex.App. -- Houston [lst] 1985). court overrules prior caselaw and affirms t/c, ruling that the charge need NOT instruct jury that accomplice witness' testimony must be corrobortated as to the specific elements making the crime capital, and that the general accomplice witness charge will suffice. CASES OVERRULED: County v. State, 668 S.W.2d 708 (1984) Fortenberry v. State, 579 S.W.2d 482 11979)

Tommy L. DORSEY, 234-85 -- Opinion on D's PDR: Aff'd, Judge White, 5/7/86 IMPROPER [BUT INVITED] JURY ARGUMENT: It was improper for DA to argue in rape case that: "...it's an insult for the defense counsel to get up here and say, well, put him on probation and give her money. I mean, that's just the most ridiculous thing that I've ever heard. She didn't want money. She doesn't want anything from him other than -- [objection; overruled] She doesn't want anything but for him to be put away to where he can't do it to some other neighbor that he might have, whoever brought khat house from them." Here complainant testified at guilt, and CtApp held that DA argument was reasonable deduction from evidence. TCA rejects, holding that IF A PROSECUTOR WANTS TO ARGUE THAT A VICTIM DESIRES HIS OR HER ASSAILANT INCARCERATED, THEN THESE FACTS NEED TO BE IN EVIDENCE. The Court held, however, that the instant argument was invited because defense counsel told jury that the only way the cmfiant would get any kind of restitution was by allowing D to be placed on probation.

June I986 1 VOICEfor fhe Defense SDR-21 Harold RUSSELL, No. 02-85-010-CR, WICHITA COUNTY, MURDER, Affirmed, 4/17/86 REQUEST FOR LAWYER PRIOR TO INTERROGATION: D asked interrogating officers, "Don't you think I need a lawyer?" Not surprisingly, they didn't. C/A holds that D did not invoke right to counsel prior to answering questions.

-Kenneth Wayne STAGGS, No. 02-85-242-CR, TARRANT COUNTY, BURG. HAB., Affirmed as reformed, 4/17/86 CREDIT FOR TIME SERVED: D spent time in the Adult Probation Department's Intensive Court Residential Center as well as some time in the county jail. C/A agrees that he is entitled to credit for time spent in the Jail, but denies him credit for time spend in the Residential Center, holding that the time in question was functionally time spent on probation and not time when he was "imprisoned".

--Belinda Joyce THOMAS, NO. 05-85-393-CR, DALLAS COUNTY, MURDER, Affirmed , 4/9/86 ARGUMENT AT PUNISHMENT PHASE: Dts counsel sought to argue that the D was not guilty of the offense she was just found guilty of at the punishment phase of the trial. C/A holds that as evidence of innocence is not admissible at punishment phase of trial, argument to that effect also not proper.

Guadalupe BePINA, No. 02-85-180-CR, DENTON COUNTY, AGG. SEX. ABUSE OF A CHILD, Affirmed, 4/23/86 SPECIFIC VS. GENERAL STATUTES: D argued that incest was more specific than aggravated sexua7 abuse of a chi7d. D distinguishes Ne7son v. State, 612 S.W.2d 605 (Tex. Crim. App. 1981) because subsequent to that holding, the legislature recodified 521.10 of the Penal Code and listed the offense stated thereunder as one type of sexual assault under 22.011, thereby making such offense a genera7 statute while leaving incest as a specific statute. C/A declines to overrule Nelson.

Michael Arthur BLOOM, No. 05-85-632-CR, DALLAS COUNTY, W I Reverseihd remanded, 4/29/86 PERFECTING APPEAL: MAKING A BILL: Trial court denied D opportunity to perfect his error by making a bill on excluded testimony. Trial court told counsel to perfect his bill" on his own time1'. C/A notes that TEX. CODE CRIM. PROC. ANN. art. 40.09 §6(d)(I) guarantees a D right to perfect a bill of exceptions and it was error to deny him right to present evidence for appellate review. REOPENING: After both sides rested and closed, record reflects prosecutor provided D new facts in the form of a statement that arresting officer told prosecutor that she couldn't smell alcohol on the D1s breath due to allergy. D sought to reopen and put cop back on stand (whether D had anything to drink was a hotly contested issue in this case). Trial court denied D opportunity to reopen. C/A holds that decision on

SDR-22 VOICEfor the Defense /June 1986 whether to permit D to reopen is discretionary, however, where D shows that: 1) the witness is present and ready to testify; 2) the request to reopen has been made before the charge was read to the jury and before final arguments; and 3) the judge has some indication of what the testimony would be, and is satisfied that the testimony is material and bears directly on the maine issue in the case, then it is an abuse of discretion to deny D opportunity to reopen.

Robert Randall MUSTARD, Jr., No. 05-85-723-CR,DALLAS COUNTY, BRIBERY, Affirmed, 4/29/K MOTION TO QUASH: C/A agrees with D that in bribery case, it was error for trial judge to deny his Motion to Quash for failing to allege the specific manner of conferring a benefit. Citing to Adams v. State, No. 364-84, slip op. at 2 (Tex. Crim. App. Feb. 5, 1986) (not yet reported), holds that the failure of the State to specify the manner of commission of the act of conferring a benefit did not prejudice the D's substantial rights since the Stat introduced overwhelming evidence of the D's guilt and he fails to show how his substantial rights were prejudiced. Comment: Denia7 of proper notice is a denial of due process and a right to a fair trial under the Federal Constitution. Lindsay v. State, 588 S.W.2d 570, 572 (Tex. Crim. App. 1979) & Gorman v. State, 634 S.W.2d 681, 684-685 (Tex. Crim. App. 1982). The reason for this rule is that the notice is necessary in order for the D to prepare his defense. Obviously, the fact that the State presented evidence of his guilt, and that the D didn't present anything to the contrary at tria7 is not dispositive of whether he received constitutiona77y mandated notice before tria7. Further, since the Court found he did not receive notice, he was denied due process of 7aw under the Fifth and Fourteenth Amendments to the United States Constitution as we77 as Article 1, section 19 of the Texas Constitution. Adams v. State, supra may set standard under State law, but it would appear that under Federal law a different standard would apply. See: e.g. Jordan v. State, 576 S.W.2d 825, 830 (Tex. Crim. App. 1978) (test for harmless error set out: cannot have contributed to conviction or punishment assessed); Collins v. State, 602 S.W.2d 537, 538-539 (Tex. Crim. App. 1980) (reasonable possibi7ity that the improper7y introduced evidence contributed to the conviction renders error harmful); Clark v. State, 627 S.W.2d 693, 697 (Tex. Crim. App. 1981) (test for harmless error is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction); Saylor v. State, 660 S.W.2d 822, 824-825 (Tex. Crim. App. 1983) (Harm7ess error test discussed). See also: Connecticut v. Johnson, 460 U.S. -2 103 S.Ct. 969, 975, 74 L. Ed.2d 823 (1983) (error may be considered harmless if beneficiary of error proves beyond a reasonable doubt that thereof complained of did not contribute to the verdict obtained); Chapman v. Ca7ifornia, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) {Federal test for harm7ess error set out). To the extent that Adams v. State, supra, places burden on D to show how he was harmed, it appears in conflict with the above cited cases which places burden on State to show the denial of due process did not effect the outcome of the case.

June 1986 I VOICEfor the heefime SDR-23: Anthony Ray GAINES, No. 05-85-860-CR, DALLAS COUNTY, BURG. HAB., Affirmed, 3/31/86

CHARGE TO JURY: D was charged with burglary of a habitation with the intent to commit theft and sexual assault. Charge was prepared with the conjunctive in the abstract portion of the charge, (e. "with intent to commit theft and sexual assault" rather than "with the intent to commit theft or sexual assault"), but only contained the "theft" theory in the application paragraph. No objection to the charge was lodged by either side. During the prosecutor's argument, D objected to references to sexual assault noting that charge would not permit conviction on that theory. The objection was overruled, but the trial judge later interrupted the prosecutor's argument and retired the jury. Over the D's objections, the Court submitted new instructions to the jury including the sexual assault theory. C/A characterizes the omitted theory as an erroneous charge which was left out by virtue of a clerical error and which can be amended by the court. See: Busti77os v. State, 464 S.W.2d 118, 125 (Tex. Crim. App. 1971).

Comment: How does this analysis square with Benson v. State, 661 S.W.2d 708 (Tex. Crim. App. 1982) which requires State to get its theory of the case in the charge if it wants to rely on that theory for a verdict?

--Leon Calvin PORTER, No. 05-85-1008-CR, COLLIN COUNTY, FORGERY BY POSSESSION W/INTENT TO PASS, Reversed and Acquitted, 4/24/86

SUFFICIENCY RE INTENT TO DEFRAUD OR HARM: D went into bank with two cashier's checks made out to his partner while partner remained out in car. Evidence showed that the checks were stolen and were originally made out to someone other than D or his partner. C/A holds that evidence shows that D knew that the checks were altered, but not that they were altered illegally. This evidence was not sufficient to sustain State's burden re intent to defraud or harm.

--Diane WILKERSON, No. 02-85-007-CR, TARRANT COUNTY, POSS . CONTROLLED SUBSTANCE, Affirmed, 4/30/86 EVIDENCE OF STREET VALUE: D was charged with possession of a controlled substance. At trial, she objected to admission of test. that "street value" of drugs found in her possession was approximate1y $40,000.00 on grounds it necessari 1y imp1 ied that she was a dealer. D argued that street value had no relevance in a possession case. C/A holds that street value admissible to place offense in context and to aid jury in determining proper punishment.

-David Allen --STEPHENS, No. 02-85-183-CR, TARRANT COUNTY, AGG. SEX. ABUSE OF A CHILD, Reversed and remanded, 5/7/86

INDICTMENTS: D charged with offense of aggravated sexual abuse of a child under 521.05 of Penal Code repealed by Act of June 19, 1983, ch. 977, 12, 1983 Tex. Gen. Laws 5311, 5321. C/A holds that essential element of agg. sexual abuse under old statute was the commission of deviate sexual intercourse. Deviate sexual intercourse was defined as contact between any part of the genitals of one person and the mouth

SDR-24 VOICE for the Defense /June 1986 or anus of another person or the penetration of the genitals or anus of another person with an object. This indictment alleged the offense of agg. sexual abuse by placing the D's genitals in contact with the genitals of the child. C/A holds that such conduct is not deviate sexual intercourse, thus indictment failed to allege an offense and was fundamental 1y defective.

James Blaine e,Nos. 05-85-595/6/7/8-CR, DALLAS COUNTY, THEFT, Abated and remanded, 5/6/86

EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL: D was indigent and represented by appointed lawyer. At conclusion of case, lawyer gave notice of appeal, but did not designate an appellate record. C/A notes that by giving notice of appeal at conclusion of trial, counsel voluntarily becomes the attorney of record on appeal. While the attorney does not have to agree to pay for the record, he must "do all that is necessary to insure that the appellant receives effective assistance of counsel on appeal ", including the making of a proper designation of the appellate record. The failure to timely designate the statement of facts for inclusion in the appellate record rendered his assistance on appeal ineffective as such is necessary for a "meaningful appeal".

Appeal was abated and the case was remanded to the trial court with the clock run back to the time when he gave notice of appeal, i.e.: Notice of appeal deemed to have been given on the 16th day after rendition af the order accompanying the opinion, with the appellate time table running from that date.

June 1986 1 VOICEfir fhe Defeme SD&-25 Darrell Still, 058-84, Opinion on Appellant's PDR: Affirmed- Judge David, 5/21/86(Clinton, Teague & Miller, dissenting) THE COURT NOT REQUIRED TO CHARGE ON LESSER INCLUDED OFFENSE OF CRIMINAL NEGLIGENT HOMICIDE WHEN FACTS SHOW DEFENDANT PERCEIVED RISK: tThe Court holds that if the Defendant perceives the risk and accepts the risk and accidently kills someone, he is not entitled to a charge on criminal negligent homicide because the fact of perceiving and accepting the risk and doing the act that caused the death is sufficient to cause a conviction for murder. CHARGE ON TEMPORARY INSANITY INDUCED BY VOLUNTARILY INTOXICATION IS NOT REQUIRED: In order for the Defendant to avail himself o such a defense, 8.01 and 8.04 must be read together and he must, as a result of intoxication, not know his conduct was wrong and was incapable of conforming his conduct to the requirements of the law he violated, Wherein the Defendant knew he was doing wrong and perceived the risk, it is very difficult for him to qualify under 8.01 and 8.04. Verdict affirmed.

&a&krd ELAS Bu&~k, 547-85, Opinion on Appellant's PDR: Affirmed, Judge Tom Davis, 5/21/86. ESCAPE: Defendant gave notice of appeal, escaped and was recaptured before the State filed motion to dismiss the appeal. The Court held that when you escape you lost your right of appeal regardless of when the State files its motion, unless the Defendant voluntarily returns within 10 days to the custody of the officer from whom he escaped.

l& l& _Tnmy Dq,_T@mag,811-85, Appellant's PDR: ~enied, Judge White, 5/21/86. APPLICATION FOR WRIT OF HABEAS CORPUS IN THE TRIAL COURT WAS DENIED AFTER APPELLANT HAD EXHAUSTED ALL OF HIS APPELLATE REMEDIES: The TC denied the Writ of Habeas Corpus. The C/A refused to hear the appeal for lack of jurisdiction. The C.C.A. held that if the TC denies Habeas Corpus relief to Applicant after hearing, Applicant's appropriate remedy would be to take an appeal from this denial to the C/A citing E& Parte &r9yner618 S.W.2d 380(Tex.Cr.App.1981). The C.C.A. notes, however, that Appellant's Application for Writ of Habeas Corpus raised the same issues that he had already raised and had been unsuccessfully raised and had been ruled upon. Therefore, while the C/A was wrong, Appellant's relief of writ of habeas corpus is denied.

SDR-26 VOICEfor the Defense /June 1986 Robert _L_aBd, 0814-85, PDR, Per Curiam 5/21/86. SPEEDY TRIAL ACT: The period of time between a no bill from a grand jury and a true bill of indictment brought by a second grand jury was properly excluded from the time under the Speedy Trial Act as an exceptional circumstance.

18, . I,' \.? (. ,-* * * * * * ' . c - -. ,1,' -1, I I I , , I,,,,r , K.iUiar? EeZda_n, 486-84, Opinion on PDR: Judgment Affirmed, Judge Clinton, 4/16/86. APPELLANT WAS CONVICTED OF VIOLATING THE CIVIL RIGHTS OF ANOTHER PRISONER: Appellant was given five years confinement, $2,000 fine and probation. As a condition of probation, the TC ordered the A to pay restitution to complainant's family of "up ton $4,000 for funeral expenses. Given the opportunity, the jury found the A guilty of only having pulled the prisoner's hair and did not participate in his death. The C imposed an additional condition on the probation of paying up to S4,000 as reimbursement for the Deceased's funeral expenses. The C/A affirmed but found insufficient evidence in the record to support the amount of the order of restitution and remanded it for hearing on the proper amount. The Court HELD to allow the TC to order Appellant to pay expenses occasioned by a crime for which the jury had found him not responsible but found him responsible for a lesser crime would be similar to circumvention of the jury's verdict. It would allow punishment to be imposed for a crime of which the A was acquitted. Judgment of the TC reformed. Judgment of the C/A reversed. ****** Yincenk Gg~az Yegal 1154-83, Opinion on State's Notion for Rehearing: Judgement affirmed, Judge Tom G. Davis, 4/16/86. WAIVER OF JURY TRIAL: The judgment states that the D appea red in pearson and in writing, in open court. waived his right to trial by jury. Absent an affirmative showing to the contrary , the presumption of the regularity of the judgment controls and the D does not get a trial by jury.

UnB, K~exeff~&cl,67,987, Opinion on Appeal from McLellan County: Judgment Reversed, Judge McCormick, 4/16/86. JURY ARGUMENT: The State invited the jury to speculate. as to "the rest of the evidencen. The Court held that such speculation was outside of the record and injected new matters and implied prior misconduct.

June 1986 1 VOICEfor the D&me SDR-27 UeB5g G~r_rfj.ljJ~_r&n,679,281, Opinion on Appeal from Harr is County: Judgment Affirmed, Judge Tom G. Davis, 4/16/86. CAPITAL MURDER CASE. PUNISHMENT AT DEATH: The C holds that the circumstances of the capital offense presented at the guilt stage can be considered by the jury and the statements and actions of the D can be considered by the J in determining the answers to the special issues. Therefore, the J can truthfully answer the issues that the D deserves to die based upon the evidence that they have heard without any scientific evidence or expert testimony of the D's likelihood to coniruit future acts of violence. ******

Lilrxy LCeitfi B~Us~p,69,211-0pinionon Appeal from Tarrant County: Reversed and Remanded, Judge Tom G. Davis, 4/16/86. CAPITAL MURDER CASE. INSANITY DEFENSE, JURY PlCKING: In this case, the A sought to question juror venireman with this question "In any case where a Defendant rajses the issue of insanity, would hold it against him because of your feelings on the issue of insanity as an affirmative defense?" The juror stat.ed that she was prejudiced against insanity but would follow the law. The questions were then asked, "How do you feel about the insanity defense?" and "How do you feel about a person who invokes the insanity defense?". These yuestjons are distinct, should have been allowed but were not. The A exercised a peremptory challenge against the venireman. At the conclusion of the jury selection, the A requested additional challenges which the TC denied. Since the TC abused its discretion in sustaining a State's objection to the question,****** the case was reversed. arr_te _Sh_e_rmam.an&&ms,69,585-Opinion on Writ of Habeas Corpus: Relief Denied, Judge Onion, 4/16/86. 11.07 WRIT WHEREIN THE APPELLANT ALLEGES THAT HIS GUILTY PLEA WAS NOT KNOWINGLY AND VOLUNTARILY OR INTELLIGENTLY MADE AND TkJAT HE DID NOT HAVE EFFKCTJVE ASSISTANCE OF COUNSEL: Appellant thought he had a deal, plead guilty with the understanding that he would be granted a new trial and would get no more time than his co- defendants, after his co-defendants plead. The C brought A back in after the co-defendant's trial, granted a new trial and reduced his time from 40 years to 25 years. The co-defendants got probated sentences.HELD: It is well established that in a post-conviction writ of habeas corpus burden is on the A and that the essential prerequisites in attacking a plea of guilty on the ground of ineffective assistance of counsel is showing that the plea was unknowingly and involuntarily entered. In the instant case, the A failed to carry forth his burden. He did not show that he was told by anyone, including his counsel, that the second plea bargain involved an agreement that he would not get any more time than the co-defendants. He only surmised this from the remarks his counsel made about not letting him get the bad end of the deal. Relief denied.

SDR-28 VOICEfor the Defense /June 1986 The Last Word

age of the child, e.g., my eleven year old (Defendant in valley of death-defense (Source: Steven Feldman, San Diego, son, Jefi, hadhislittle button on. Thatbut- argument) California) ton said, 'Why do we kill people who kill (Name the Defendant) stands in the Valley people to show that killing people is of the Shadow of Death. There is no room (Contrasti~tgdefendant's crime to others wrong?" for error in your decision. (Source: Steven more heinous where life senfencegiven- Yesterday my state the relationship, Feldman, San Diego, California) graphic demonstration-defense e.g., son) said, "Daddy, are they going to argument) kin (name the Defendant)?" I said, "Idon't (Defendant, family friend as victims- If you contrast (name the Defe~rdant) know." (Source: John M. Young, Colum- defense argument) conduct with that of other people in this bia, South Carolina) How many victims do we want as a result community, this is what you will find: (On of the killing of (rtame the victim)? There a graph, describe in separate paragraphs (Taking another life doesn't show respect is more than one victim here, ladies and the brief details of several very grotesque for human dignipdefense argument) gentlemen. (Name the Defendant) family crimes. At the end of the graph, have a The prosecutor says to youthat by your arevictims. (Name the Defendant) wife is final paragraph describing the brief details verdict of death you can show your respect a victim. (Name the Defendant) himself is of the crime in the instant case. Then com- for human dignity. I ask you how by your a victim, (Source: Steven Feldman, San pare these more aggravated crimes where verdict of death as to the Defendant can Diego, California) the defendants received a life sentence with you show your respect for human digni- the instant case.) You are the conscience ty? How can you ever show your respect (Defenhtt has skill he could teach young of thecommunity. Is this a flame ofdefn- for human dignity by taking another life? inmates-defense argument) dant in a horrible case)? Is this a (name You know that (kame the Defendafit) has of defendant in a difierent horrible case)? (Reply to proseeator quoting Old Testa- some skills. (State the nature of the skills, (Source: Steven Feldman, San Diego, ment in support of dedhpen&-defense e.g., "He is a carpenter and welder.") If California) argument) you assess bim a life sentence, he could I found it interesting that the prosecutor teach young inmates this useful skill. He (Death penal& as irrevacable-defense talked and quoted from the Bible. I found could help them hate a chance at a pro- argument) it particularly interesting that he chose to ductive life when they serve their One aspect of thedeath penalty that you refer only to the Old Testament. In the Old sentences. (Source: Robert Sanger, Santa can't ignore is that it is absolutely ir- Testament it says, "If there is anyone who Barbara, California) revocable. Once somebody is put to death, curses his father or his mother, he shall be (describe the manner, e.g., otrce the pellet put to death." It further says, "If there is (Does Defendant deserve deliberate is dropped. the agony of the death throes aman who commits adultery with another killing-defense argument) is over and the person is pronounced man's wife, ...the adulterer and the Does (name the Defendant) deserve a deud), that's the end of it. That's the end adultress shall be put to death. If there is deliberate, premeditated killing? (Source: of the case for (rzame the Defendant). a man who lies with his father's wife, he Steven Feldman, San Diego, California) (Source: Robert Sanger, Santa Barbara, has uncovered his father's nakedness, both California) of them shall be put to death. If there is (Passive death makes it harder for con- a man who lies with his daughter-in-law, demned man to retain composure and (Chance of executi~tgwrong person- both of them shall he put to death; they courage-defense argument) defense argument) have committed incest. If there is a man Human nature is such that men die more Some people believe that human life is who lies with a male as who lies with a bravely on their feet. It would beeasier on sacred and that society bas no right to take woman, both of them have committed a a condemned man to show courage and it. Even if you don't believe that human life detestable act; they shall be put to death. composure in his last moments if the final is sacred, the thing that should nag at your If there is a man who marries a woman and act required of him were a positive one conscience is the thought that you might her mother, it is immorality and both of such as walking to the scaffold rather than condemn the wrong person to death. As them shall be burned with fire." to passively await the prick of the needle. a matter of historical interest, we know that I think it isprobably safe to assume that the English abandoned capital punishment most of the people here on this jury know (Is death only solution-defense argu- as a result of the execution of an innocent their Bible. You know that under the Old me~tt) and retarded man for the notorious "Rill- Testament in times when there were no Fundamentally the only question in this ington Place" murders. prisons and no sentences, the death penal- case is whether death is the only solution. ty was attached to some acts that would be I recall other people in history who thought (Iunocentpeople mistakenly convicted- considered misdemeanors today. the ultimate solution was killing. Adolph Father Pagano example-defense argu- However, you also recall the First Com- Hitler thought the only solution was tokill ment) mandment God gave was 'Thou shalt not the Jews. The Romans thought the only You have all read of cases where the kill." There was no qualificationput on that solution was to kill the Christians. Every wrong person bad been convicted. (Cite an commandment whatsoever. (Source: John rime I think of death in terms of state example, e.g., "Some of you may have M. Young, Columbia, South Carolina) authorized killing, it turns my stomach. read about Father Pagano, the Catholic

June 1986 1 VOICE for the Deferwe 17 priest who was convicted of robbery bas- death chamber is located. In previous ex- bromide, a paralyzing agent similar to the ed on eyewitness testimony of several peo- ecutions, the inmate was transferred early poison used on arrow points by South ple. Only later was it determined that a in the morning to the Huntsville Unit and American Indians; and potassium chloride, man who looked almost exactly like the taken to one of eight holding cells adjacent a salt that stops the heartbeat. The execu- Father was really the guilty person. The to the death chamber. tioner will inject these chemicals with a wrong person had been convicted. Father During the day, the prisoner is entitled syringe like this (display a syringe to the Pagano was innocent.") We have all read to visits from the prison chaplin or his per- jury) into an IV that will flow into hame about people who have been imprisoned or sonal minister and his attorney and approv- tlie Defendant) veins. His face will tighten executed for things they didn't do. (Source: ed family and friends. After 6 p.m., only and tears will come to his eyes. He may Robert Sanger, Santa Barbara, California) the chaplain is allowed to visit. whimper. Perhaps be will make no sound. The final meal is served between 6:30 He will begin to feel death creeping in. His (Doesn't take bravery or courage to vote and 7:30 p.m. breath will come in wheezing rasps. His to !dl a person-defense argument) The inmate is taken from his holding cell fingers will tremble. Then his body will Perhaps theprosecutor will tell you that and walks to the death chamber, where he stiffen and move no more. A doctor will the times in which we live require the is secured to a hospital gurney, or cot. One step forward, place a stethoscope on (name courage and bravery on your part to vote of his arms is fastened to a small board the Defendant) chest, shine a penlight in- for the death penalty. Each of us has a dif- protruding from the gurney. An uniden- to his eyes and say, "I prounce this man ferent definitiou of what it takes to be tified medical assistant then inserts an in- dead." courageous. My concept of courage may travenous catheter into his arm. be different from yours, but I ask you- The witnesses are then allowed at that (Description of execution by electrocution "Do you see courage and bravery in voting point to enter the small death chamber. -defense argumerrt) to kill a person?" They stand behind a rail separating them The prosecutor talks about the death from the inmate by four or five feet. penalty and whether there are mitigating (Carrnot bring victim back-defense The inmate is allowed to make a final circumstances sufficient to preclude impos- argument) statement. When the statement is com- ing a death sentence. We are talking again Two wrongs do not make a right. You pleted, the warden announces that the ex- legally in lawyer talk. What the prosecutor have spoken. We can't argue with your ecution can proceed. is asking you to do is to kill (name the decision. We disagree with it, but we can- The executioner stands behind a wall Defendant). It's as simple as that. He is not argue with it. You said he murdered containing two small covered windows, asking you to cause the State of (name the hame the victim), and that brings us to this one connecting the tube of the IV and State) to pull a switch which will put 5,000 stage of the proceedings. If, in fact, he another for communication. At the volts of electricity through the body of the killed 6iame the victim), we cannot bring warden's announcement, the executioner Defendant. Not the way (name the Defen- (name the victim) back by killing the defen- injects a neutral solution into the prisoner's dant) looks as he sits there today, but on- dant. (Source: I.S. Levy Johnson, Col- arm. Then he injects a fatal combination ly after his head is first shaved so that they umbia, South Carolina) of sodium thiopental; Pavulon, a muscle canput on the oil which will allow the elec- relaxant; and potassium chloride to stop the tricity to flow more surely through the (Deufh sentence creufes deuflr row hero- heart. electric chair. Not the way he looks today, defense argument) but after they put him in a diaper, because In recent years, we have seen the grim (Injection of fatal chemicals-defense when you are electrocuted, you lose con- renaissance of the executioner. With each argument) trol of your body functions and they want execution, we create Death Row heroes. (Indicate the prosecutors.) They want to make sure that the death room is clean. We focus attention on the offender's fate you to die an undignified death. fimme the Not the way he looks today, but after they rather than on his victim. Every time a Defendant). They are going to come for put a mask over his head, not so he can't death sentence is meted out, the jury un- you some day as you sit in a jail cell. see what is going to happen, but so that wittingly creates a Death Row hero. The They'll strap you to a cart and roll you in- the witnesses who by law view the elec- enormity of the crime becomes over- to a dark room up against a wall where trocution can't see his eyes bursting from shadowed by the enormity of the punish- there will be long tubes. They'll hook the their sockets and blood gushing from his ment. Don't make a Death Row hero out tubes to your arm and you will watch as nose as the voltage hits him. of 6mame the Defendant). the liquid circles through the tubes, plain as death. You won't be able to do anything (Description of execution in gas chartrber (Describing official procedures followed about it because you'll be strapped down -defense argument) iu art execution-defeuse argument) tight. In a gas chamber, ladies and gentlemen The (,lame thestate) Department of Cor- of the jury, a person is strapped in a chair. rections follows certain procedures in an (Injection of fatal clremicals-syringe Thc close the dwr and seal it, then execution. (Describe theprocedures, i.e., dentonstration-defense argument) thev~ ~~ ,~ dron thc littlc oil1 into a howl of acid. the Texas defender could say: The prisoner The executioner will fdl big hypodermic The fumes start to come up. The con- is moved from the Ellis Unit to the Hunts- syringes with sodium thiopental, an demned is strapped in the chair. He may ville Unit, about 13 miles away where the anesthetic and depressant; pencuronium try not to breathe, but he has to. Then,

18 VOICE for the Defense /June 1986 slowly and painfully, he strangles to death. dead. At that moment, several people there, of course. No one will require you It is a horrible sight to see. It is a horrible began fighting over the hood that covered to watch. But, under our system, (state the thought to even put in your mind, but it his head." n~annerof execution e.g., the switch can- is a thought I want you to think about not bepulled) unless you (state the action because you have to think about the con- (Killing for vengeance not deterrence- the jrny must take, e.g.. answer the special sequences of a death verdict. pickpocket analogy-defense argument) aggravating issues yes7 say it. If you do You have to think about all of the bad Why do we kill? If you cut away all the so, you are saying, "Let him die by (state things: the straining against the straps, the fat, it is probably for retribution and the manner of execution, e.g., electrocu- gagging, the loss of all body functions. Is vengeance. It couldn't be much of a deter- tion). (Source: IS. Leevy Johnson, Col- that what you want for a human being? Is rent because we have had the death penal- umbia, South Carolina) that what you want? Is it? Perhaps the deci- ty for years. Many countries have had the sion, even though it is your decision, as death penalty. England once had the death (Jurors can't shifl responsibilify -defense to when somebody dies, is best left for penalty for 172 different offenses. They argunzent) God, not man. (Source: James Farley, would put adulterers to death. They would To those who, as you sit here now, tend Ventura, California) put pick-pockets to death. The interesting to agree with me, hear with me for a while, thing is they had public executions. They for I, too, know that brevity is the soul of (Lust public exeerrtion-defense argrr- would bring a pick-pocket out, convict wit. mertt) him, hang him by the neck in public so To those of you who may tend to dis- The last public execution in the United crowds could gather around and assemble agree with me as you sit here now, keep States was in 1936. The description of it to see what happened to pick-pockets. Do an open mind. was as follows: 'This was the hanging of you know what? They found out that when To those of you who have formed no a 22-year-old black man named Rainey they executed pick-pockets there were opinion at all at this stage but are waiting Bethea at Oweushoro, Kentucky in 1936. more people at the execution getting their to hear my remarks, I hopemy words will Bethea had been convicted of the slaying pockets picked than any other time. It convince you that this is not a death penalty of a 70-year-old white woman. The hang- doesn't deter crime. That's not the ques- case. ing was organized by the County Sheriff, tion today, whether it deters crime or Because it is the opinion of the twelve a woman named Florence Thompson. She whether it's retribution. The question is men and women who sit in front of me who deliberately had the scaffold erected in a whether, under the circumstances you have make the decisions that count. It is your field so that thousands could witness the heard, this man should be put to death. decision alone that counts. execution, which she set for sunrise. So (Source: I.S. Leevy Johnson, Columbia, You can never shift the responsibility for many people invaded Owensboro for the South Carolina) the sentence in this case. You can never spectacle that terrified local blacks fled the explain that the rest overpowered you, town, especially after receiving lynching (Death issue is juror's decision alone- because you, each and every one, vote, and threats from drunken white revelers. All defense argument) only you and you alone can cast that vote. night hanging parties were the order of the If you decide that (name the Defendant) If your verdict is that (name the Defendmt) day. is to die, it will he your decision alone. it must be sentenced to death, it must be done By 5 o'clock the following morning, is not the Judge's decision. He simply by eachof you. It must he your individual, 20,000 people were in the field, including sentences theDefendant according to your deliberate, cool, premeditated act, and no over 200 sheriffs and deputies from verdict. It is not the executioner's. He one else's. (Source: Barry Morris, various parts of the United States. Only six simply carries out your command. The Oakland, California) Negroes attended, two of them women. decision is yours and yours alone. (Source: When the hangman was testing the trap Steven Feldman, San Diego, California) (Life sentence ruther than death-defense door, it snapped open to the loud cheers argrrmertt) of the crowd. (Jurors cannot insulate themselvesfrom (Name the Defendant) is (state the Bethea arrived at 512 a.m., accom- responsibility-defe~tse argument) Defendant's age). Thimk what it is going panied by a Catholic priest. When the I cannot be like the prosecutor and claim to be like for the rest of his life to have hangman pulled the bolt, there was a loud some omnipotent power to decree that a bell ring in the morning at 6:30, to get cheer. The still warm body was attacked another man should die. Death is death up, to have 30 minutes to perform his by souvenir hunters. They tore off pieces regardless of what form it takes. You can- chores, to be regimented minute by of clothing; some even attempted to cut not insulate yourself by saying that you are minute, hour by hour, day by day, for the pieces of flesh from Bethea's dangling a member of this jury and that you only rest of his life. He's only (state the Defen- body. voted that fi~arnethe Defendant) be (state dant's age). What is his life expectancy? Hundreds of spectators thronged around the manner of execution, e.g., elec- Perhaps 65 or 70 years, something lie the scaffold while two doctors examined trocuted). The end result is the same. If that? Let's assume that (name the Defen- the body with stethoscopes. There was a you vote to authorize somebody else to dant) dies at (state the hypothetical age, large groan when the doctors detected (state the manner of execution, pull the 65, 70, etc.) in prison. That's (state the heart beats. switch), it is just like you are pulling the nuntber of years) during which the Defen- At 5:45 a.m. Bethea was pronounced switch yourself. You are not going to be dant will not have one waking moment that

June 1986 1 VOICE for the Defense 19 is his own. The only time the Defendant Dante describing the gates of Hell and the Feldman, San Diego, California) will have time that he can call his own is inscription above those gates: "Abandon when he is sleeping and even then, he can't hope, all ye who enter." (Source: Barry (Defeudant rvill die irr prison eitherirr or- escape the nightmares of his crime. Isn't Morris, Oakland, California) dirrary course or in gas chanrber-defense that enough punishment? argrirrrerrt) (Life witlroutparole*-deferlse argument) You have already decided that the (Life serrterrce rather than death-defense Let's talk a little bit about life without Defendant will die in prison. That decision arguruent) the possibility of parole, because, was made when you rendered your verdict What good would it do, what good sometimes the phrase gets thrown around at the guilt stage of this trial. He is either would be accomplished, by putting (nanre like it's a piece of cake, like there is nothing going to die in prison as a result of the ter- the Defettdattt) to death? You have con- to it. Let's think about it for a moment. mination of the ordinary course of his life, victed him of killing another person. How Let's think about having to spend the rest however ordinary that may be in prison, would killing him change that fact? of your life in a five foot by eight foot cell, or he's going to die in a little green room, There is no restitution that this jury can with a toilet in the middle that you share in a room that has windows for people to order the Defendant to make to the victims. with somebody else. It is likeliving in your watch, whoever may care to come to such There is nothing we can do, however well bathroom for the rest of your life with no a thing, a room that has a chair with straps intentioned, that can give back life to the way to get out of it. You sleep in it and on it, and he'll die when somebody drops victims. They are dead. eat in it, unless you are allowed to go to a pellet of cyanide into sulphuric acid. That As Omar Khayyam, the famous Arab the chow hall. You do all these things right is your decision at this time. (Source: poet and philosopher, once said, 'The in the room, with somebody else that you Robert Sanger, Santa Barbara, California) moving finger writes and, having writ, never met before. moves on. Nor all your piety nor wit shall Somebody tells you for the rest of your (Value of defemdaut's life-defense lure it back to cancel half a line, nor all life when to get up, when to go to bed. So- arguruerrt) your tears wash out a word of it." (Source: meone tells you what yon can read. There is value to human life. We Barry Morris, Oakland, Califronia) Somebody tells you what you can eat. Im- wouldn't be here today if we didn't consider agine in your own mind never being able (name'the victim) life to be valuable. But (Life without parole as sufficient to eat a home-cooked meal, or to eat out, (,tanre the Defendant) life is also valuable. deterrer~t-defense argurrrertt) or to go to a movie, or to go to a theater, He has not forfeited the value of his life If deterrence is what is needed, the best or to go to a baseball game, or to go for by his terrible acts. (Source: Gary Pohlson, that can be said about the death penalty is a drive, or even to take a siniple walk in Santa Ana, California) that it is an effective deterrent for one per- the woods. Some of you love the outdoors. son, but is not life without parole sufficient Imagine never again being able to hunt or (Value of life-baptism analogy-defense for that purpose? fish. argument) By asking you for mercy, by asking you How about only being able to see your Last Sunday my little boy was baptized to spare fitante the Defendant) life, I don't loved ones during visiting hours with and as I held him over the baptismal font want you for a minute to think that I am somebody standing over you, under cons- and watched the priest pour water over his pleading for leniency, because I am not. tant surveillance? (Source: James Farley, forehead, I thought of (nanle the Defen- There is nothing lenient about being con- Ventura, California) darrt). There were 25 family members demned to spend the rest of one's life day there-all for my little boy and I thought, after day, month after month, year after (Propriely of sentence of life inrprisorr- (name the Defettdant) never had this. year, behind prison walls. rtrent withorit parole*-defeme argn- I thought, we are celebrating the value By your verdict, the Defendant, (name mertt) of my little boy's life and this week I must the Defer~dartt),will never know what it You've already condetnned (name the defend the value of another human being's is like again to sleep in an unlocked room. Defendant) by your verdict of conviction. life. It does not make sense to say that life For the rest of his days on this earth his He is already dead in society. He will is so precious in a three-month-old child world will be circumscribed by the cold, never walk the streets again with his (smte and that it is without value in a (state the gray, stone walls of a prison. He will never the fatnily rnernbers, e.g., daughter, son, age of the Defendant) year-old man (or again be free to walk among the hills on relative, eic.). You've already guaranteed woman). (Source: Gary Pohlson, Santa a sunny spring day. He will never be free that. Isn't life without hope of parole a suf- Ana, California) again to take his children to a park, to the ficient punishment? zoo or to the movies. He will never again We'renot dealing with the old law which (Weighing aggravnhirg and rnih'gatirtg cir know the true meaning of the word gave the possibility of parole to persons currlstarrces is not a mechanicalprocess) "freedom." like Charles Manson. This law guarantees Mitigation is not a numbers game. Its At a minimum, by your verdict, (name that the key is tossed away and (nante the not a situation in which we can say that a tlze Defendant) will enter State Prison with Defendartt) will never walk the streets stabbing weighs four pounds, a killing no possibility of parole;* with no possibil- again. That decision is made. The only real weighs eight pounds and background is ity of ever getting out. In a way, a sentence question now is whether one killing four ounces. The weight to be given those oflife without parole recalls the words of justifies another? (Source: Steven factors must come from two places-from

20 VOICE for the Defense /June 1986 - your reason and from your hearts. If we I am saying to you comes from my heart. r- stop using our reason together with our (Source: I.S. Leevy Johnson, Columbia, 1 C.r$m*ai ,b@w hearts, we cease being civilized human be- South Carolina) ings. (Source: Gary Pohlson, Santa Ana, I Calqndar California) (Versict duringputzishmenfhearing dif- ferent from guilt stage-defense (Answering life or death question not a argummtj clerical act-defense argument) In order to convict the Defendant, aU 12 The prosecutor told you in his argument of you have to come to a unanhnous deci- that your functionis merely clerical-look sion. In order to find the Defendant not at the circumstances in aggravation, look guilty, all 12 of you wolrld have to wme at the circumstances in mitigation, add to a unanimous decision. So, with respect them, balance them, and there is your deci- ro finding the Defendant guilty of a capital sion. But, ladies and gentlemen, life is crime, all of you have to come to a sacred. Because life is so valuable, the unanimous decision to tind him eligible for decision of whether or not to kill someone the death penalty. But your verdict at this can never be reduced to a simply clerical stage of the trial is different. You are to function. (Source: Steven Feldman, San decide the issue of punishment, not guilt. Diego, California) All 12 of you have to agree unanimously if you want to kill him. But if any one of (Ticne to decide if there ore mitigabng you decides that you don't want to kill him, factors-dense wgument) you can sign the verdict which says we Ladies and gentlemen, when the can't unanimously agree that the death arguments have been completed, his Honor penalty ought to be imposed (or: voteS'No" will instruct you as to the law for the final to the special issues). phase of your deliberations. He will h- That is why Isay thesedeliberations are stmct you that at this stage you are only different from those at the guilt hearing. to consider whether or not mitigating fac- You ean render a verdict without sitting in tors exist sufficient to preclude the death there for days until you come to a penalty as to this Defendant. You are not unanimous decision. That's the difference. called upon or required to try the case over If, when you go back to the jury room, again, you are nos called upon or required one of you, or more of you, say, "I don't to review your decision with respect to the want to kill (name the Defendant)," you existence of the statutory aggravating fac- bave the option of signing that verdict tors. This is the time that you must decide which reflects your opinion and your whether or not the death penalty shall be philosophy, the verdict which says we can't issued with respect to this Defendant. unanimously agree (or: voting "no" to the special issue). (Lust words for defendant-defense Each one of you has the individual argument) power not to kill the Defendant. You have These are the last words that will ever that power in your signature that you're go- be spoken in this courtroom on behalf of ing to affix to the verdiot form. You bave (name the Defendant) before you make a the power to go hack to your family and decision whether he lives or dies. to say, '7 sat on a murder trial involving At the outset, I need ta tell youthat I am a tragic death and it was a terrible, not adequately prepared to do this. awesome experience. But I decided by Number one, I have never had any train- signing the verdict form which spared the ing to do it. Numbertwo, I feel inadequate life of (home the Defendanf) not to kill to do it. Number three, I just don't know again. I stopped the carnage." You have the right way of how to go about begging the power to say to your family that you you for this man not to dim. were responsible for stopping any more For the last ten months, I have gotten to blood from being spilled. know (name the Defendant). I am not ashamed to tell you he has become my friend. I have become his advocate. So in the next few minutes that are allotted to ? California pmvides that the Defendant can be me, if I seem to ramble or seem to repeat sentadto death or life without parole for rapilal myself, I hope you will understand what murder. W

June 1986 1 VOICE for the Defense 21 CDLP News: Criminal Trial Advocacy Course 1986 by Robert L. Towery Executive Director, CDLP

the CTAC the reputation it enjoys is the the faculty to make improvements for next The week of April 27-May 2 I was "faculty." I hesitate to use the term because year's CTAC. Furthermore, it proves that privileged to experience for the first time it frequently connotes "professors," and teaching is only a part of education, and CDLP's Criminal Trial Advocacy that is not what this course is about. The talking only a part of communication. We Course at the Criminal Justice Center, faculty consists of criminal defense all learn by listening and sharing, and from Sam Houston State University in Hunt- lawyers, prosecutors, and judges whose the feedback1 received, both students and sville, Texas. I had heard for a number of experience is 'Tn the pits." Not only does faculty members learned from this ex- years that this is one of the finest programs this lend credibility to the course as a perience. available for the newer, less experienced whole, hut it offers the students the oppor- Several suggestions were received on lawyers who are active in the criminal tunity to learn first hand how the experts how we can improve next year's course. defense field. The reputation is not exag- do it. The only theory addressed is the Since the majority of the students do not gerated. theory of trying the case, and the course know each other, we are going to start The Criminal Justice Center is an ideal is designed to teach students how to earlier on Sunday afternoon with aplenary facility for this type of program. The develop the theory and to follow through session designed to "break the ice." This University Hotel is connected to the Center in every phase of the trial, while still be- will facilitate students' selection of and is as nice as many of the hotels inma- ing prepared for the unexpected. witnesses to be used in the individualper- jor cities. Except for evening meals, it is Members of TCDLA, the prosecutors, formance assignments, as well as give never necessary to leave the building. The and judges who participated in this year's roommates a chance to get acquainted courtroom, which is used extensively and CTAC are to be commended for their without visiting past midnight. Also, we in which each student gets to perform, dedication and commitment of time to the will probably delete the Wednesday night lends a sense of reality to the proceedings. course. Special recognition goes to BiU dinner and leave people to their own Other rooms are also used for videotaping White of Austin who served as Course preferences. One evening for fresh water student performances and for faculty Director, putting together the case file, caffish at the Riverside Cafe is a must, and reviewing and critiquing on an individual commiting the faculty members, and I am told that The Junction is outstanding. basis. presiding throughout the the week. Mr. With one CTAC under my belt, I can't This is not an easy going week for the White's experience with NITA programs wait until next year. The dates have been students or the faculty. A case file and pro- and other trial advocacy courses allowed confirmed with the Criminal Justice blem assignments are distributed to the CDLP to build upon what others have Center, and the course will be held March students in advance of thecourse, and they tested and proved, while developing our 15-20, 1987. The registration fee will be are expected to prepare for the assignments own unique character and personality for $400, including lodging and two meals per the same as they would for a trial. Even- this program. day (the greatest deal since the nickle ham- ing hours during the week are spent Without the students there would be no burger), so anyone interested should start preparing for the next day's assignment and CTAC, and they were terrific. Forty-six laying some dollars aside. exercise. Students play the various roles lawyers, many with little or no trial ex- called for in the case fde, while other perience, showed up Sunday evening for students prepare them for their testimony. dinner, orientation, and the initial presen- Demonstrations by members of the facul- tation. Most did not know many of their MEMORIAL ty give the students a model of "how to do fellow students with whom they would John T. Boyce, TCDLA Charter it," and then the students perform. work so closely during the week. The first Member, died in Dallas, Texas on One of the most effective segments of videotaping workshop on Monday morn- December 13,1985. He is survived by his the course is the individual review and ing reflected a certain amount of tension wife, Helen, and two sons, Eric Charles critique by a member of the faculty. Im- and inhibition, and most students were a and Steven Thomas. mediately following the videotaping of the little nervous about performing in a strange After graduating from Highland Park exercise, the student goes to another room environment before other lawyers whom High School, Mr. Boycereceived his BBA with a faculty member and watches his or they did not know. By Tuesday most were from North Texas State University. He at- her performance on a monitor. The facul- really getting into the exercises and feel- tended the Southern Methodist University ty member critiques the performance and ing more comfortable about performing. and University of Texas Schools of Law, suggests ways to enhance that performance Wednesday started bringing out some receiving his JD from the latter in 1957. in the actual trial of a case. This one-to- critical comments and suggestions from the Mr. Boyce was in the general practice one exchange is less inhibiting for the stu- students, which indicated that they were of law in Dallas for over 25 years, dent and aUows for the undivided attention really using the course as a subjective specializing in criminal defense and work- of the faculty member. learnine- emrience. This tvoe, of feedback ine- toward soecialization in immieration The single most important factor giving enables the staff, the Course Director, and law when he died. -. 22 VOICEfor ilte Defense /June 1986 DWI Practice Gems by J. Gary Trichfer Driving ~vhileintoxicated crinti~ialcases are improper. %one v. State, 703 S.W.2d are ripe with numerous legal issuesfor the 652 (Tex.Cr. App. 1986), afirmirtg, 685 innovative practitioner. Accordingly, the S.W.2d 791 (Tex.Ct.App. -Fort Worth, following is offered as food for thozight in 1985). your practice. In this regard, the arrthor also invites your inquiries, sirggestions and Respectfully submitted, coms~ents. Introduction

Texas has a statutory exclusionary rule Certificate of Service which precludes the State's use of illegally obtained evidence. The rule, found at Art. I hereby certify that a true and correct 38.23, Tex.C.Cr.Pro., can be utilized by copy of the above and foregoing Memo- citizen-defendants in a variety of areas. randum has been furnished to the Assis- Moreover, utilization of the rule has no J' Gary Trichter is apamer in the law tant District Attorney presently assigned to downside and can result in the vindication finll ofMallett, Trichter & Brann in How this case by hand on this the of the suspect's rights both at trial and/or ton, Texas. He is co-author of the text day of on appeal. entitled Texas Drunk Driving Law by But- 19-. tenvorth Pirblishers. Mr. Trichter has also NO. - written many journal articles and has might as an adjunct professor of law at THE STATE OF TEXAS 5 IN THE COUNTY CRUtlNAL ATTORNEY vs. 5 COURT AT LAW NO. - South Taas College of Law ond the Uni- 5 COUNTY.TEXAS versify of Hortstorl Lnw Center. hlEMORAM)lBI M SUPPORT OF DEFENDANTS REQUESTED 38.- JURYIxsmucnoxs the jury on the aforementioned requested Article 38.23, Tex. Code Crim. Pro., jury instructions. See Marrs v. State, 647 recites in pertinent part that: S.W.2d 286 (Tex.Crim.App. 1983) and In any case where the legal evidence Rose v. State, 470 S.W.2d 198 raises an issue hereunder, the jury (Tex.Crim.App. 1971). However, where shall be instructed that if it believes, an issue of fact is raised, a defendant has or has a reasonable doubt, that the a statutory right under Art. 38.23 to have evidence was obtained in violation of thejury charged accordingly and the trial the provisions of this Article, then court is mandated to give a charge on the in such an event, the jury shall fact issue. Murphy v. State. 640 S.W.2d disregard any such evidence ob- 297 (Tex.Crim.App. 1982). Legal, Corporate, tained. All of Defendant's requested charges Governmental Clients Evidence obtained: absent Defendant's properly elaborated on what legal or con- I I consent, through nonconformance with stitutional rights were supposedly violated. Specializing in Financial Art. 67011-5 $3(c) (DWI Statutory ad- Cj,Ballestero v. State, 640 S.W.2d 423 Theft Cases monitions), from an illegal seizure in viola- (Tex.Ct.App. -San Antonio, 1982). I I tion of either the Fourth Amendment to the Moreover, once the issues are raised, the 0 Confidential-Internal United States Constitution or Art. 1, 99 of court is mandated to charge the jury that Investigations the Texas Constitution, or in violation of if it believes the facts as testified to by the I I Defendant's right to assistance of counsel witnesses, that all derivative evidence is in- IRS, State prosecution, under the Sixth Amendment to the United admissible. Morrv. State, 631 S.W.2d517 testimony experience States Constitution or Art. 1, $10 of the (Tex.Crim.App. 1982) and Brunson v. I I Texas Constitution, are all proper issues State, 323 S.W.2d 597 (Tex.Crim.App. whichmay be raised for ajury's considera- 1959). Indeed, where the issues are raised Chilo Rivera-Owtier tion under Art. 38.23. by the evidence and a timely request made, (Sl2) 480-0444 If thls is a case where there were no fac- the Court is still being mandated to charge 1602 E. 1st St. Austin, TX 78702 tual issues in dispute, then the trial court the jury on the issues requested even would not be in error by failing to charge though the suggested charges themselves

June 1986 / VOICE for the Defense 23 From the Inside Out Going to Prison8 What to Tell Your Client About Prison, Parole, and Good Time by William T. Habern

Editor's note: 771;sis the second section D. Other pertinent recommendations of the 1986revisio11by Mr. Habern of an (may include specified housing and articlefirst printed it? the December 1980 job assignments). edition of this publication. Due to the numerous changes in the law and prison Note: The chairperson and any two (2) regulations, and the length of this article, members constitute a quorum. RDC Com- Mr. HabernS material will appear in nlon- mittee recommendations related to unusual thly sections for the rtat several editions. or difficult cases are reviewed by the Chairman of State Classification Commit- Riding the Chain: tee or the Director of Classification and An offender arrives at TDC either is extremely sick or has been recently in- Records. voluntarily or by aid of an escort. The vast jured. Such an inmate should make ar- majority will be taken by officers of the rangements with the sherifPs office and his State Classification Committee (SCC) State of Texas or by TDC transportation, physician to be transported via car or am- a bus known as the "chain." The second bulance. Because it is so difficult and Comnpositio~t: unique group will be allowed to make a expensive to arrange for alternate transpor- A. Chairperson: Chairperson of the voluntary surrender to TDC. tation, it should be considered only by peo- State Classification Committee Luck plays a large part in determining ple who are physicially unable to ride the B. Vice-Chairperson: Director of whether your client will be allowed to bus. Classification and Records voluntarily surrender. The chances are While awaiting transfer to TDC, an in- C. Member: State Classification Com- greater when the nature of his conviction mate should attempt to curtail his or her mittee members as assigned does not cause serious concern to the trial tobacco and caffeine habits. These items officials. If this privilege is granted, be cer- are extremely difficult to acquire, even by Authority: tain that thejudgment and sentence reflects purchase. An inmate who adjusts quickly A. All interunit transfers this ruling. to this minor discomfort will be better able B. All custody assignment reviews in- If the offender is one of the lucky ones to handle the loss of other privileges he or volving minimum-out or maximum allowed to voluntarily surrender, he will she faces upon being incarcerated. (administrative segregation) report to the diagnostic unit in the Hunts- C. All activity plan changes that cannot ville area (women report to the Goree Unit of Assignment: be remedied with current policies Unit). The offender will report to the back After being processed, an inmate is and procedures. gate on or before the time stated in the assigned to a unit by the classification com- D. Furlough approval sentencing documents. If the offender is mittee. The following is an outline (flow E. Pre-parole approval surrendering voluntarily, you should be chart) of the new state classification F. Supervision of staff and o.wrations certain that the client understands the system. These committees and subcommit- of the BOCR office and the RDC. documents he or she will present upon ad- tees control the unit assignments, security mission into the TDC system. levels. and institutional assienments- of in- Departmental Review Board Have your client tell the TDC intake of- mates. The comminees and subcommittees ficers that he or she is a voluntary sur- are as follows: Comnposition: render; this will follow on throughout his A. Chairperson: Assistant Director for experience at TDC and can he a real Reception and Diagnostic Center Treatment and Classification benefit for a new inmate. Classitleation Committee B. Vice Chairperson: Administrator of Prisoners not escorted by the Rangers or Human Services a sheriff ride the TDC bus, known as the Cornposition: C. Member: Chairperson of the SCC or "chain." The bus is normally used to carry A. Chairperson: Representative of State Director of Classification and people to TDC ham the large metropolitan Classification Committee (SCC) Records areas. Three steel slab benches run the B. Member: RDC Psychologist D. Member: Central Admin. Program length of the bus. These steel slabs are C. Member: RDC Custody Supervisor Head (mental health, medical. designed to hold 40 to 60 inmates, but D. Member: Physician's Assistant security) of the issue at hand often as many as 90 to 100 are packed into E. Member: Division HeadILevel staff the bus. An inmate, handcuffed and Authority: shackled, is given no opportunity to relieve A. Development and approval of the Airthority: himself during the entire trip. Though general activity plan A. Render final decision on all bearable to most people, this bus could B. Initial unit assignemnt classification actions presented for cause severe problems to an inmate who C. Initial custody assignment review, either on appeal or by

24 VOICE for the Defense /June 1986 recommendation of other classifica- segregation) D. Recommendations concerning tion committees. 3. Furloughs reduction or increase in custody 4. Classification appeals unresolved assignments Unit Full Classification at the unit level E. Furlough recommendations Committee (UFC) F. Housing and custody assignments Unit Reclassification Committee (URC) G. Assignment to and removal from Composition: safekeeping status with notification A. Chairperson: Warden or Assistant Con~positio~~: to the State Classification Com- Warden A. Chairperson: Assistant Warden or mittee. B. Member: Major Major H. SAT ILI and SAT IV good conduct C. Member: Unit Physician, Physician's B. Treatment Department HeadlLevel time award Assistant, or Registered Nurse employee (rotating basis for I. Reschedule inmates for subsequent D. Member: Chief Correctional Chaplain, Unit Psychologist, classification reviews Counselor AA/Substance Abuse Counselor, E. Member: Unit Psychologist or WSS Medical staff and Education Con- Note: Principal sultant) A. The warden, the assistant warden, or C. Custody staff member (Lieutenant the major may make the following Autl~ority: rank or over, rotating basis, or classification decisions without com- A. Recommendations for changes in- equivalent rank from Industry, mittee action: volving minimum custody (out) and Agriculture, Construction, or Food 1. Change in housing assignments maximum custody (administrative Service) that do not involve changes in segregation) custody assignment B. All classification decisions for Authority: 2. Changes in activity plans within removal from administrative A. Review for restoration of forfeited the same major program area and segregation good conduct time and promotion changes in job assignments that C. Recommendations to the State from disciplinary class (Line Class do not significantly affect other Classification Committee (SCC) on: I1 or Line Class 111) areas of the inmates Activity Plan 1. Interunit transfers B. Changes in activity plans between 3. Immediate placements in ad- 2. Custody changes involving SAT major program areas ministrative segregation in accor- I, SAT 11 and Line Class I C. Changes in job assignments that dance with the Administrative minimum custody and removal significantly affect other areas of the Segregation Plan (See Appendix from maximum custody (admin. Activity Plan 9) in the interest of security.

Unit Processine

Unit Activity Plan

Upon arrival at Unit of Group orientation is pro- Each inmate is interviewed a. Correctional Counselor assignment the inmate is vided each inmate by the by his assigned Social Ser- contacts unit personnel placed in special housing. Correctional Counselor. vices Unit Correctional in regard to work Counselor. treatment programming in light of R & D Classification Commit- tee findings and makes recommendations to the InitialIReclassification Committee for ap proval. b . Initial/Reclassification Committee may appeal the contents of the Ac- tivity Plan.

June 1986 1 VOICE for the Defense 25 6. *Coordination of

Implementation I I The Correctional Tlre Correctional Counselor The Chief Correctional Transitional Aid interviews Counselor, following ap- conducts Activity Plan Counselor schedules the ap- will be conducted by cor- proval by Initial1 follow-up with non-Special propriate unit committee rectional counselor with Reclassification Committee Needs inmates: sentenw (Full Classification or In- Special Needs inmates 14 coordinates implementation of 5 years or less once itiaUReclassification Com- months prior to inmates of the Activity Plan. every six months; inmates mittee) and acts as a voting parole or release eligibility with sentences of more member on the Unit Full date (Information shared than 5 years, once every Classification Committee. with BPP). Follow-up tran- year. High priority Special sitional aid interviews will Needs inmates will be con- be conducted with high tacted once every four priority Special Needs in- months regardless of length mates 3 months prior to of sentence. release or parole eligibility date. The Correctional Counselor notifies the Chief Correc- tional Counselor of those inmates who need to appear before a classification com- mittee for possible reassignment.

*At any point after step 4., an inmate may need to appear before one of the unit classification committees for possible reassignment. The responsibilities and compositions of the unit classification committees are attached.

Unit Classification Committees

a. Fingerprints inmate a. Complete Physical a. Interviews inmates a. (E.A. Test) a. Completes given each inmate California Test of Consolidated h. Photographs inmate b. Completes M.H. Adult Basic Educa- Record Form h. PULHES Screening tion administered c. Completes I.D. classification com- Evaluation b. Revised Beta I1 b. Completes Visita- Sheet pleted (I.Q. Test) ad- tion List ministered d. Requests FBI & c. Report of Physical c. Has inmates sign DPS Reports Examination com- c. Orientation Consent Forms fo pleted provided M.H. information :. Informs inmates their assigned TDC d. Vocational Interest number Test administered

26 VOICEfor the Defertse /June 1986 Psychological Evaluation (if appropriate)

a. Completes a. Makes family, a. Interviews inmates a. Completas Activity Custody Officer Report employment, education Plan contacts via telephone b. Assigns Offender Classification b. Assigns custody level h. Completes Social Ser- vices Supplemental In- c. Completes Admissions c. Makes unit assignment formation Inquiries Summary and card

d. Makes Activity Plan recommendations

e. Presents information to R & D Classification Committee

f. Identifies Special Needs Inmates

One inmate who appears to have made risk his job to save your neck or even make may get ulcers, but that heats serving ex- a positive TDC adjustment writes: things easier for you. This is the easiest tra years for disobedience. "Enroll in school or college at the first trap; avoid it at ali costs, but always be "Notify your family upon arrival at your opportunity. Enroll in AA if there ere any polite and businesslike with all officials. unit of assignment. Make it clear that you drug or alcohol problems on your record. Laugh at their attempts at humor and then are allowed only two adult visitors every Regardless of how bleak the future seems, move on. Do not indulge. two weeks. TDC is not very flexible about begin immediately on a self-help program. "If you are arrested for a rule infraction visiting rules and will have little sympathy No one will help you if you don't help for which you are in any way guilty, plead for your family. yourself, and maybe no one will help you guilty. If you feel accusedunjustly, do not "See to it that your family is aware of even then. he surprised if an innocent plea costs more furlough procedures in case of a death in "Do not make unnecessary trips to sick- than a guilty. your family. If they do not act in time, yon call. Notwithstanding that the medical at- "Tell the officials at your unit of assign- will be unable to get a furlough." tention is extremely inadequate, an inmate ment that certain people on the outside are (This article to be continued with the whose record shows numerous sick-call concerned about your welfare. Do not next edition.) trips is eventually ignored and treated very overdo it, but instruct your family to make sparingly. itself known in a subtle manner. "Do not become too familiar with any "In particular units, some of the rules are TDC official or "Boss." Many guards joke not enforced. At times, however, rules that and kid around with inmates who allow it. were ignored for months are suddenly Eventually this will cause serious pro- strictly enforced without warning. DO not VOICE ADVERTISERS blems, however. The guard in question assume that these rules have simply been Forensic Associates...... 3O willmost probably be able to dish it out, forgotten. Do not assume it's okay to HCCLA...... 29 but not take it. Remember that no matter disobey the rules because everyone else National Legal Services ...... 9 how friendly he may seem, no officer will does. Never relax your guard in TDC. You Chilo Rivera ...... 23

June 1986 1 VOICE for the Defense 27 card for Ruben at a Houston senatorial convention, one campaign worker shoved a card upon a distinguished gentleman, who was making his way to the stage for a speech. You see, non-discrimination is a firm policy of the Guerrero campaign. by Walter Boyd The gentleman was Governor Mark and Allen C. Isbell white. Seventeen Harris County District Judges met at the Criminal Justice Center in Some swearing going on in the marriage plain to the boating doctors how he is get- Huntsville with five defense attorneys to of new lawyer Kate Miller and hubby ting fee-sick. discuss the court appointed attorney sys- Judge Chuck Miller (Court of Criminal Grant Hardeivay is trying to explain to tem. Candy Elizoruio, President of Har- Appeals). The latter swore in the former the Court why men were coming and go- ris County Criminal Lawyers Association; at the El Arroya in Austin ... Racehorse ing into a silk stocking apartment all night Robert Pelton, immediate past president; Haynes takes to the waters on a cruise ship long. It is alleged to be a white collar Jim Skelton; Allen C. Isbell and Walter to conduct a medical malpractice seminar $300,000.00 prostitution operation. There Boyd were present. The Harris County for tax-deductible vacationing doctors. is no contingent attorney's fee ... Demo- judges are reviewing and improving the Racehorse, who reports that he is getting cratic District Judge candidate Ruben court appointed system. out of criminal law and into the more Guerrero had a sharp and spirited cam- lucrative personal injury practice, will ex- paign staff. While distributing a campaign

County lawyers, judges, or events. I realize that the authors do solicit news andinformation and may not have received any contributionsfrom other counties, but your publication and your organization are statewide. Perhaps using a team of writers lative way to remove an evidentiary matter from all regions of the state would result from a rule of procedure vet make sure it in a column not monopolized with Hams P " is converted inio a rule o? evidence. See County news. Rule410, Texas BarJournal (March 1986) Dear Rusty: 220, at 223. In the opinion of some schol- Sincerely, ars it provides even hroaderpmtection than Geoffrey A. PitzGerald correctly notes Article 26.13(a)(2). See Blakely, Article RON CHAPMAN that Article 26.13(a)(2) is being amended IV: Relevancy and Its Limifs,20 Hous. L. Dallas by deleting certain provisions applicable Rev. 151, 250-263 (1983 Tex. R. Evid. when a court rejects a plea bargain, viz: Handbook). Dear Rusty:

"neither the fact that the defendant Sincerely, Thank you for accepting my article. I had entered a plea of guilty or nolo hope that it will help someone. However, contendere nor any statements made SAM HOUSTON CLINTON Idid want to correct One thing. There was by himat the hearing.. .may beused Austin a misprint either on my part or the printer's against the defendant in any subse- on page six, paragraph two. The monetary quent criminal proceeding." Dear Rusty: loss figure is $300,000 rather than the $3 million figure. All is not lost, however. Perhaps we should change the name of Pursuant to House Bill 13 the amend- thei'Hearsay" column to the'nmis Coun- Sincerely, ment takes effect when Texas Rules of ty Criminal Lawyers Association News- CriminalEvidence becomeeffective Sep- letter." In your April issue 27 out of 34 GEORGE SCHARMEN tember 1, 1986. This is simply the legis- column inches were devoted to Harris San Antonio

28 VOICEfor tlg Defense /June 1986 DWI SUPER SEMINAR w LEARN. . . --- What's happening in DWI law --- Creative pre-trial motion practice --- Inside the lntoxilyzer --- Sensible and productive Voir Dire --- How to cross-examine the Officer --- How to cross-examine the Chemist --- Winning jury argument w FROM. . . --- John E. Ackerman...... Gary Trichter --- Dick DeGuerin...... Randy Taylor --- Richard "Racehorse" Haynes...... Dr. Ken Smith --- Mike Ramsey...... Randy Schaffer w FREE. . . --- Texas Drunk Driving Law, Vol. I& 2, published by Butterworth, written and edited by Trichter and Lewis w WHEN. . . --- Friday, July 18, 1986 w WHERE. . . --- South Texas College of Law, 1301 San Jacinto, Houston

'TCDLA, Texas Criminal Defense Lawyers Association, HCCLA, Harris County Criminal Lawyers Association, HBA, Houston Bar Anociatio~

NOTICE: CLE Credit is a load pipe cinch!

For informution, or to register, contact: HCCLA 705 Maim, Ste 400 Houston, TX 77002 - (713) 227-2404

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City State Zip One of the major problems facing the the suspected contraband; use of blind or criminal defense attorney in drug related blank samples; calibration and mainten- Forensic cases is the lack of expert witnesses who anceof the equipment used in the analysis; are qualified to examine and tastify con- and what actual tests were run. It might be cerning evidence that has been previously important to know if the standard used for Science analyzed by chemists who are employed comparison has been verified or is the by the prosecution. Without assistance analysis of the standard's source being ac- from an expert, the defcnse attorney must cepted without question. If a controlled rely on the testimony of the state's chemist substance is reported by weight, the to be truthful, fair and knowledgeable. Ef- balance or scale should be routinely fective defense must include knowing the verified to insure accurate results. Since proper questions to ask and the ability to some drugs are sensitive to heat and light, recognize correct answers to those the defense attorney should ascertain how questions. the standards used for comparison are Lysergic Acid Diethylamide (LSD) is stored. Laboratory procedures should be one of the controlled substances that has reviewed ina step by step discussion. The special requirements in regard to quali- reason for each step should be examined tative and quantitative analysis. LSD has by the defense and not just accepted as several isomers and a nnmber of deriva- something that is routinely performed. tives as well as a number of naturally oc- The properly informed and prepared curring alkaloids. Care must be exercised defense attorney can sometimes discover to insure that false positives are not aspects of a scientific analysis tbat can reported. The chemist must he careful in change the outcome of a trial. One should every detail of the procedure since small always attempt to establish empathy with errors might lead to erroneous results. members of the jury; however, being Defense examination should pay close knowledgeable about the various scientific attention to such items as: cleanliness of procedures might make a great deal of dig- by Pal H. Dortley glassware used; verification of the source ference in the presentation and interpreta- Forensic Associate-Lubbock, Texas of known drugs used as comparisons for tion of the facts.

should first give a Mirmda warning to the Hearsay officers. The Police Union President Tom- FORENSIC ASSOCIATES co~dtittuedfrompage 28 my Britt says that the court's ruling will make it harder to muzzle a troublemaker Providing complete support to at- The new Texas Criminal Appellate at a crime scene. However, Britf refuses torneys in all aspects of scientific Manual is off the press. Among many to to be muzzled when it comes to criticiz- and investigative matters for civil be credited for this ambitious project in- ing publicly his bosses, Mayor Kathy and criminal litigation. clude Richard Anderson, Jerry Fifi- Whitmire and Police Chief Lee Brown. Gerald, and Judge Chuck Miller ... Britt's latest public criticism was directed Areas include, but are not limited Patterned after a program in Orlando, at the police chief for limiting to four the to, firearms identification and func- Florida, Missouri City, Texas bas a police- number of police officers dining together tionability, fire cause and origin trained cadre of lay citizens to assist in law in public during working hours. investigation, laboratory identifica- enforcement. Zske Zbrnnek, Liberty County Attorney tion of fire residue accelerants, Gay activist Ray Hill 8, Houston Police and Democratic Party Chairman, declared accident reconstruction, DWI or 7. Hill wins one by one in an en banc deci- that a candidate for J.P. who received 910 alcohol related matters, trace evi- sion from the Fifth Circuit declaring un- votes to 909 combined votes for his op- dence, serology, drug analysis, constitutional Houston's "interferring with ponents must nevertheless face a runoff. engine oil contaminant studies, a police officer" ordinance. Hillhas a habit The leading candidate got only one-half a wood shingle damage determina- of asking on-the-scene questions as to vote, and not one full vote over half of the tions, latent prints. probable cause for officers making arrests. total votes, according to Zbranek, who Appears some officers do not want to cited a New York case as controlling. Full time full service private crime answer Hill's questions while placing Hearsay has a position on this point, to- laboratory. someone in the slammer or slamming wit: one-half of a Texan's vote is worth at someone in place. Dissenting opinion by least one full New York vote any day. FORENSIC ASSOCIATES Judge Patrick Higgenbotham labels Hill Send us news about what is happening P.O. Box 64561 "confrontation-minded" .. . Neither the ma- in your area. "Hearsay," 202 Travis Suite Lubbock, Texas 79464 jority nor the dissent recognized the real 208, Houston, TX 77002 (713) 236-1000. (806) 7943445 issue in the case, tbat is, whether Hill rn

30 VOICE for the Defense /June 1986 Collin County Defense (?) Form Contributed by George Roland, McKinney, Texas

THE STATE OF TEXAS VS.

CAUSE NUMBER

DEFENSE COUNSEL PHONE

ASST DISTRICT ATTY

DATE

TO SAVE TIME FOR BOTH YOURSELF AND MEMBERS OF THE STAFF OF THE DISTRICT ATTORNEYS OFFICE, PLEASE CIRCLE THE NUMBER(S) BESIDE THE DEFENSE APPLICABLE TO YOUR CLIENT.

I. You do not have n case: 2. It is all a big mistakc-you'vo got the wrong man: 3. Hc was just in the car and was not participating: 4. The others forced him to do it; 5. How abont giving the fellow a braM He (a) has a large family; (b) has n good ol' (c) has never done anything like this before: 6. I haven't been paid yet; (I) Mama 7. His constitutional riehts were violated: (2) Daddy 8. There was an illcgarsearch and seizure: 9. Can he go into the Army? 10. He could not waivo his rights because hc doesn't understand them: 11. My client is: (a) rctardcd; (b) a mental case; (c) just a pwr farm boy. bcdazzlcd by thc city ligha. who fell in with a hand of: (I) thiwes (2) hippics 12. I have an affidavit of nun-prosecution in my office: 13. My client can hclp you get to "Mr. Big"; 14. He's olwady scrving time in federal prison; IS. This is his first offense-he won't do it again: 16. My clicnt is rolnted to: (a) thc governor (b) the judge (c) athcrs; 17. He was drunk; 18. He may be guilty of something else, but not this crime; 19. You couldn't punish him any mare than he's already punished himself; 20. This is a civil case: 21. He sings in thc church chvir.

CONTINUANCE EXCUSES

I. I haven't been paid: 5. I need marc time to talk to my client; 2 I couldn't get ahold of my client; 6. I forgot; 3. My clicnt had to go to London on business; 7. My client forgot; 4. Thc judge is not going to be here today, and he doesn't want to plead 8. I got called to trial in Dallas: before another judge; 9. Traffic was terrible: 10. I'vc got a hearing upstairs; OTHER STORIES NOT LISTED: 11. I've got a deal worked out with (a) Jury 12. rm going hunting; 13. rm going to Las Vegas; 14. My secretary forga to notify my client; 15. My client doesn't have a tclcphone: 16. I thoueht this case was set next week: 17. I thoueht- -vau were -mine - to dismiss this case: 18. I thought my law partner appeared on thls case; 19. I need to subpoena some wimosscs: 20. My client doesn't want to plead until the ca-defendant pleads; 21. My client doesn't want to plead until after Christmas.

June 1986 1 VOICEfor the Defense 31