THETEXAS PROSECUTOR by yaohongm

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									THE      TEXAS PROSECUTOR                        The Official Journal of the
                         Texas District & County Attorneys Association
                                   Volume 35, Number 1 • January/February 2005

 “It shall be the primary duty of all prosecuting attorneys … not to convict, but to see that justice is done.”
                                       Art. 2.01 Texas Code of Criminal Procedure



A serial killer sees justice                                                         Also in this issue …
The investigation and trial of Anthony Shore
                                                                                     “Little black boxes” in
                   By Terese Buess and Kelly Siegler
                  Assistant District Attorneys in Harris County                      many vehicles can help
             aria Del Carmen Estrada bra had been cut in the front with a            unravel collision
M            was a 21-year-old Mexican sharp instrument. One breast had a
             citizen who moved to mark similar to a bite. A ligature and
Houston to work and make a better life garrote composed of a small piece of
                                                                                     mysteries ...........page 16
for herself. For the past year she worked wooden dowel had been twisted so
as a babysitter during the day and had tightly that it was embedded in Maria’s
just landed a job clean-                               neck.
ing offices at night.                                       Maria        remained    How the Harris County
                                                       unidentified until her fam-
She dated a young
                                                       ily arrived at the Dairy
                                                                                     DA’s office is handling
man who worked as a
restaurant cook, and                                   Queen after seeing the        the HPD crime lab’s
they had discussed                                     evening news. Maria’s
marriage. Early in the                                 father had become con-        problems...........page 19
morning of April 16,                                   cerned when he learned
1992, Maria left the                                   that she had not reported
apartment she shared                                   for her babysitting job,
with her father, uncle, Anthony Shore at his October something that had never
and two cousins, and trial. Photo courtesy of the happened before. He
                                                                                     Find out about a new
was last seen walking Houston Chronicle.               showed the DQ employees       Texas innocence
toward the bus stop at 6:30 a.m.          a picture of his daughter, and they con-
     Around 11 a.m., a Mrs. Baird’s firmed that the body they had seen was           project, plus a warning
deliveryman discovered Maria’s body indeed Maria.
face-down at the back of a Dairy               Sgt. Kennedy supervised the can-      about false actual
Queen drive-through. Sgt. Hal vassing of the area where Maria’s body                 innocence claims
Kennedy of the Houston Police was found. All family members were
Department’s Homicide Division interviewed, as were all the men she                   .........................page 27
believed that Maria had been dumped had dated. Maria’s boyfriend was inter-
out of a car. Her pantyhose and panties rogated and failed a polygraph but was
had been pulled to her knees, they were eliminated as a suspect when the HPD
torn at the front, and her skirt was Crime Lab determined that his DNA
missing. Her shirt was open, and her                           Continued on page 9
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  TEXAS DISTRICT & COUNTY
   ATTORNEYS ASSOCIATION                                   TABLE OF CONTENTS
   1210 Nueces St., Austin, TX
       78701 • 512/474-2436                           4    Executive Director’s Report
fax: 512/478-4112 • www.tdcaa.com                          TDCAA presidential transition
              OFFICERS                                      By Rob Kepple, TDCAA Executive Director

      Hon. Susan Reed, San Antonio
               President:                             5    Newsworthy
                                                      13   The Agony Column
         Bruce Isaacks, Denton
        Chairman of the Board:
                                                           Enforcing open meetings

          Tim Cole, Montague
            President-Elect:                                By Rick Miller, Bell County Attorney in Bell
                                                      16   Criminal Law: Little black boxes
           David Williams, San Saba
         Secretary/Treasurer:                               By Rob Canas, Assistant Criminal District Attorney in Dallas County

            DIRECTORS
                                                      19   Criminal Law: Houston, we have a problem.
   C. Scott Brumley,Amarillo • Jesse                        By Marie Munier, Trial Bureau Chief in Harris County DA’s office
   Gonzales, Jr., Fort Stockton • Mark
Edwards, Sweetwater • Dan Heard, Port                 22   Criminal Law: Emergency medical professionals
 Lavaca • Steve Reis, Bay City • Michael
     Fouts, Haskell • John Bradley,
                                                            Reprinted with permission from the NDAA’s APRI
              Georgetown
                                                      26   Investigators School curricula and registration form
                                                      27   Criminal Law: Claims of actual innocence
    Melissa Hightower, Georgetown
  Investigator Section Chairperson:
                                                            By Robert Dawson, UT law professor and director of UT’s innocence project

          Patti Poe, Montague
 Key Personnel Section Chairperson:
                                                      30   Criminal Law: Barnes v. State: A defendant’s abuse of a
                   BOARD                                   post-conviction actual innocence claim
       REPRESENTATIVES                                      By Barry Macha, District Attorney in Wichita County
  Bill Turner • Kathy Braddock • Doug                 33
Lowe • James Kuboviak • Casey Garrett
                                                           Civil Law: The troops are coming home—are you ready?
  • David P.Weeks • Rene A. Guerra •                        Reprinted with permission from Texas Business Today
               Barry Macha                            34   Upcoming seminars
                    STAFF
 Robert Kepple, Executive Director • Diane            35   Criminal Law: Charging felony DWI as felony murder, part 1
   Burch Beckham, Senior Staff Counsel •
Lindsey Roberts,Training Director • Shannon
                                                            By Mollee B. Westfall, Assistant Criminal District Attorney in Tarrant County
 Edmonds, Staff Attorney• Ben Whittenburg,
 Executive Sales Manager • Markus Kypreos,            39   Criminal Law: Charging felony DWI as felony murder, part 2
Research Attorney • Marnie Parker, Financial
 Officer • Judy Bellsnyder, Meeting Planner •               By Warren Diepraam, Assistant District Attorney in Harris County
John Brown, Director of Operations • Sarah
   Wolf, Communications Director • Gail
  Ferguson, Administrative Assistant • Lara           42   Criminal Law: “Rocket docket” and speedier case flow
   Brumen, Database Manager & Meeting                       By Betty Arvin, Deputy Chief in the Criminal Division of the DA’s office in
  Planning Assistant • Shelly Bundy, Meeting               Tarrant County
  Planner • W. Clay Abbott, DWI Resource
 Prosecutor • Kevin Landtroop, Law Clerk •
             John McMillin, Intern                    45   As the Judges Saw It
Published bimonthly by TDCAA through legislative            By Betty Marshall, State Prosecuting Attorney’s Office in Austin
appropriation to the Texas Court of Criminal
Appeals. Subscriptions are free to Texas prosecu-
tors, investigators, prosecutor office personnel,     49   Dr. John’s Corner
and other TDCAA members. Articles not other-
wise copyrighted may be reprinted with attribution
                                                           The destructive power of stress
as follows: “Reprinted from The TEXAS PROSECUTOR            By Dr. John Krampitz, UT Houston School of Public Health in Austin
with permission of the Texas District & County
Attorneys Association.” The editor encourages
readers to share varying viewpoints on current top-   50   Victim Assistance Section
ics of interest to TDCAA members. The views                Protecting the privacy of child crime victims
expressed are solely those of the authors. We
retain the right to edit material.
                                                            Reprinted with permission from the NDAA’s APRI
    Sarah Wolf, Editor/Photographer
  Diane Beckham, Senior Staff Counsel
Copyright 2005, all rights reserved.                                                                                            PAGE 3
          THE TEXAS PROSECUTOR




                                                                                            tors. We like to do those in more out-of-
                                                                                            the-way settings, which led us on one
       the                                                                                  trip to beautiful Turkey, Texas, and the
                                                                                            quaint and historic Turkey Hotel. In
  Executive Director’s Report                                                               fact, so quaint that when Michael
                                                                                            Hartman, DA from Snyder, called for a
                                               By Rob Kepple                                room reservation and asked for his con-
                                               TDCAA Executive Director                     firmation number, he got a moment of
                                                                                            puzzled silence, followed by “I’m
                                                                                            Mona.”
TDCAA presidential transition                                                                    The best part of the regionals for us
                                                                                            is a chance to visit with you away from
                                              Yolanda De Leon ended her distin-

W
             e’re at that transitional part
                                                                                            the Austin office or at a big training
             of the year again, and it’s      guished service as the County and
                                                                                            meeting. Standing around the back of a
             time to say                                    District      Attorney     of
                                                                                            pick-up listening to Mike Fouts, DA
thank-you to our board                                      Cameron County. Bad tim-
                                                                                            from Haskell, tell stories is worth the
president, Bruce Isaacks,                                   ing for us here at TDCAA to
                                                                                            price of admission. And you learn some
the criminal district attor-                                be sure, because Yolanda, as
                                                                                            things. For instance, although we com-
ney in Denton. Bruce has                                    President-Elect, was set to
                                                                                            monly honor Tim Curry, CDA in Fort
served us well with his                                     take the association’s reigns
                                                                                            Worth, as the Dean of District
straightforward, common-                                    at the beginning of the new
                                                                                            Attorneys with 33 years of service to
sense approach, and we’re                                   year.
                                                                                            date, we have an unrecognized Dean of
glad we don’t have to say                                         But I am very pleased
                                                                                            County Attorneys. That’s Howard
goodbye—come January                                        to report that, although we
                                                                                            Freemyer from Jayton, who began his
1, Bruce moves up to                                        will miss Yolanda, we won’t
                                                                                            service on June 19, 1970. That’s 34
chairman of the board, passing the reins      miss a beat in leadership. At the
                                                                                            years with no sign of letting up.
to the president-elect. Much thanks to        December 8, 2004, board meeting, as
him for his dedicated service and com-        her last official act on the board, Yolanda
plete willingness to go the extra mile for    nominated Judge Susan Reed, Criminal          “Sin ain’t sin if good people
our members.                                  District Attorney from San Antonio and        do it.”
     Speaking of the president-elect, on      former TDCAA board member, to take            That’s rule No. 3 of the Three
December 31, 2004, our good friend            her place as President-Elect (both            Immutable Truths of Prosecution dis-
                                              women are pictured at left). The board        covered through years of practice by the
                                              unanimously approved the motion.              former Bell County District Attorney,
                                              Thus, at the beginning of the year, Judge     Arthur C. “Cappy” Eads.1
                                              Reed was elevated to President of our              That apparently applies to Texas
                                              association for 2005. That’s a great way      Hold ’Em tournaments, because you
                                              to get the year started. We look forward      wouldn’t believe the number of calls
                                              to Judge Reed’s leadership.                   Markus Kypreos, our research attorney,
                                                                                            has gotten about his article in the last
                                              The Hotel Turkey                              edition of The Prosecutor concerning the
                                              We recently completed a series of fall        questionable legality of these tourna-
                                              regional meetings with elected prosecu-       ments. Heck, it’s not really close—the
                                                                                            vast majority of these proposed tourna-

   PAGE 4
                                                                                               JANUARY/FEBRUARY 2005




ment schemes, for charity or for profit,              But in the debate over Texas correc-   Harris County Attorney Michael
are clearly illegal in some form or fash-       tions policy that began last fall, I’m       Stafford for assigning the “A” team to
ion. But there may be some ways to fina-        already tired of hearing the mantra cred-    the case.We will let you know what hap-
gle a tournament out from under the             ited to a well-respected judge in            pens in state court.
current Texas gambling statute, and peo-        Minnesota: “We should treat the people
ple are doing their darndest.                   we are mad at and lock up the people we      Endnote
                                                                                             1 For those of you who are curious, here are the
                                                                                             other rules. Rule One: “It ain’t against the law to kill a
      But whatever you do, please don’t         are afraid of.” I suspect you will hear
call Markus and harass him about being          that a lot in the coming months. I know      son-of-a-bitch.” Rule Two:“Blood is thicker than water.”
anti-gambling and ruining all the fun.          there is a whole lot more to that sound-
He wrote the article because I asked him        bite, but how that catchy phrase trans-
to, and as I recall it was a little late get-   lates into sound corrections policy is a
ting done because Markus’ flight back           little fuzzy.
from Vegas was delayed at deadline
time.
                                                                                              Newsworthy
                                                Longevity pay update
                                                You may recall that for the last year a
Curious about the                               lawsuit has been bubbling in the federal     TDCAA presents
Legislature?                                    courts regarding H.B. 1940, the bill
Bill filing for the 79th Legislative            from the 2003 Legislative Session that       weekly case summaries
                                                                                             TDCAA is pleased to offer our members
Session began November 8th. If you              established the Felony Prosecutor
want to keep up on who’s messing in             Supplement Fund in the state treasury,       unique case summaries from the U.S. Supreme
                                                and juiced the fund with a $15 or $30        Court, Fifth Circuit Court of Appeals, Texas
                                                                                             Court of Criminal Appeals, Texas Courts of
your business and how, you can do so
                                                                                             Appeals, and the Texas Attorney General. In
easily by going to our website at               cost on a bail bond posting. Two
www.tdcaa.com and clicking on the               Houston bondsmen filed a lawsuit. On         addition to a brief summary and holding, each
Legislative tab. That leads you to three        November 30, 2004, Judge Nancy               case will have a link to the full text opinion, and
                                                Atlas, U.S. District Judge for the           some will offer exclusive prosecutor commen-
                                                                                             tary. This is a service designed specifically for
links: Penal Code, Code of Criminal
                                                                                             prosecutors to keep you updated in the short-
Procedure, and Bills to Watch. Click on         Southern District of Texas, granted the
any of those, and you go straight to the        State’s Motion for Summary Judgment          est amount of time. Sign up now at
                                                and remanded the case to state court for     www.tdcaa.com by clicking on the Weekly
                                                                                             Case Summaries button at the top and adding
bill information on the Capitol web site.
                                                                                             your name to our subscribers’ list.
                                                consideration of the remaining state
                                                claims. In short, the court rejected the
Are you afraid or just mad?
                                                bondmen’s claim of standing to sue and
A couple of issues ago, I suggested that
you take a look at a research report writ-
                                                rejected their claims relating to excess
                                                bail, due process, and equal protection.
                                                                                               New appointee to
ten by Dr. Tony Fabelo entitled: “The
Diminishing Returns of Increased
                                                You can view a copy of the court’s order       Judiciary Advisory
                                                at www. tdcaa.com; click on the Forms
Incarceration” (available online at
www.jfa-associates.com). It argues that,
                                                and Briefs tab, and search for “longevi-       Council
                                                                                              Melvin Brown, Jr., Ph.D., was appointed to
                                                ty.”
although the prison building of the last
                                                     I want to thank Kathy Wilson,            serve on the Judicial Advisory Council to
                                                                                              the Community Justice Assistance Division
two decades has been a rational and rea-
                                                Assistant Attorney General, and George
                                                                                              of TDCJ and the Texas Board of Criminal
sonable response to the crime epidemic,
                                                                                              Justice. Judge Sharon Keller, presiding judge
                                                Nachtigall, Assistant Harris County
the question now should be how we can
                                                                                              of the Court of Criminal Appeals, made the
                                                Attorney, for their hard work on the
make corrections policy the most cost-
effective. Good question.
                                                case. And hats off to their bosses,           appointment.
                                                Attorney General Greg Abbott and
                                                                                                                           Continued on page 6
                                                                                                                                       PAGE 5
            THE TEXAS PROSECUTOR




   Newsworthy                                          By The Prosecutor Staff



Law & Order Awards

T
presented to Riddle, Duncan
        wo state legislators were honored            November 11th in Houston for her work on
        recently with TDCAA’s Law & Order            crime and public safety issues.
        Awards for their work during the 78th             “Representative Riddle has always been
Regular Session.                                                       eager to help, and she can be
      Senator Robert Duncan of                                         counted on in 2005,” said
District 48 in west Texas was given                                    Chuck Rosenthal, Harris
his award at the Elected                                               County District Attorney, who
Prosecutor       Conference        in                                  presented her the award (see
December for spearheading suc-                                         the photo, left).
cessful efforts to revise the state's                                      In addition to her work as
handling of mentally incompetent                                       a committee vice-chairman,
defendants and improved state                                          Rep. Riddle passed bills that
laws on post-conviction DNA                                            protected child victims of sex-
testing for prison inmates, laws that he original-   ual assault (H.B. 1246), eliminated a loophole
ly authored. In addition to his own bills, Duncan    that allowed the untimely release of certain
used his position as Chairman of the Senate          criminals (H.B. 2795), facilitated the use of
Committee on Jurisprudence to continue his           crime lab evidence at trial (S.B. 1129), and
efforts toward improving the effi-                                     imposed tougher penalties on
ciency of our state's court system.                                    those who sexually assault
      “The Texas District and                                          disabled victims (S.B. 837).
County Attorneys Association's                                             “The Texas District and
commitment to keeping our                                              County Attorneys Association
streets safe is part of what makes                                     is very important to the peo-
our state a great place to live,”                                      ple of the state of Texas and to
Duncan said,“and I am honored to                                       the State Legislature to insure
receive an award from such an                                          that justice is a reality for all
important group.” He is pictured                                       Texans,” Riddle said. “I am
with Bill Smith, CA in Briscoe County, above.        honored that the association would choose to
      State Representative Debbie Riddle was         recognize me, and I thank its members for all of
also presented with a Law & Order Award.             their efforts to make Texas known and respect-
Riddle, the state representative for District 150    ed for its justice system.”
in northern Harris County, was recognized


                                                                              Continued on page 15


   PAGE 6
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       THE TEXAS PROSECUTOR




Elected Prosecutor Conference photos
More than 175 elected prosecutors from around the state attended December’s seminar
in Austin. Here are a few memories of the week.




  PAGE 8
                                                                                           JANUARY/FEBRUARY 2005



Continued from the front cover

A serial killer sees justice (cont’d)
profile did not match that of semen         kidnapping. His description of a beige       investigation of Dana’s case.
found in Maria’s oral swab.                 van with a brown horizontal stripe was            Concerned that three murders of
Crimestoppers fliers were distributed in    quickly disseminated throughout the          young females involving the same type
the area with no response. The wooden       neighborhood and police department. A        of ligature and garrote meant that a seri-
dowel was fingerprinted but with no         tip line was set up, and due to the vol-     al killer was on the loose, the Houston
results. The ligature was determined to     ume of calls, a procedure was created to     Police Department and Harris County
be cord from a Venetian blind—a mate-       categorize and prioritize the hundreds of    Sheriff ’s Department created a task force
rial capable of supporting a 300-pound      tips received. Each bit of information       to work together with assistance from
man without breaking. Sgt. Kennedy          had to be carefully researched and exam-     the FBI. They re-examined the Estrada
eventually had to put the Estrada case      ined. And while several other serious        and Rebollar case files but made no
on the back burner because there were       cases were solved as a result of the tip     progress in identifying a suspect.
no leads and other active cases demand-     line, nothing substantive was ever                The task force worked hard, sadly
ed his attention.                           received concerning Diana’s case. For        with no results, and after another year, it
     On August 14, 1994, two years after    several years, patrol officers stopped any   disbanded.
Maria’s murder, the HPD Homicide            vehicle that vaguely matched the                  In 2003, the Houston Police
Division faced another case with chilling   description of the van and, amazingly,       Department found some extra funding
similarities. This time the victim was a    every driver willingly provided hair and     allocated for DNA testing in cold cases.
9-year-old girl who had been sent to the    buccal swabs for DNA comparisons, but        With the HPD Crime Lab’s DNA
corner store to buy a bag of sugar. Diana   there was never a match. Bob King also       Division shut down, that work was sent
Rebollar had made her purchase and was      had to put Diana’s case aside to work        to various laboratories around the state
last seen just a few houses from home.      other active cases, but he continued to      and in New Orleans. Investigator Bob
Her body was discovered in the early        rework the file as time permitted and        King asked for analysis of some of the
hours of the following morning behind       followed up any new possibilities.           evidence in Maria Estrada’s case. Orchid
an empty office building. Diana also             Then on July 6, 1995, 16-year-old       Cellmark’s Dallas laboratory notified
appeared to have been dumped, her           Dana Sanchez disappeared while hitch-        him that they found male DNA in the
body curled up in a fetal position, clad    hiking to see her boyfriend. Eight days      fingernail clippings and were able to
only in a t-shirt. She had clearly been     later, an anonymous caller contacted a       determine a profile. That profile was
sexually assaulted and had blood stream-    local TV station’s TIPS line and report-     immediately submitted to CODIS, the
ing from both her vagina and anus. She      ed that a serial killer was on the loose     offender database maintained by TDPS.
had a mark similar to a bite on one         and that there was a body in the field of    Within 24 hours, King was informed
breast. A ligature of parachute cord was    a commercial property development.           that CODIS had a match with a
embedded in her neck with a small bam-      The reporter who took the call was con-      Houston sex offender named Anthony
boo garrote.                                vinced that it was made by someone tap-      Shore. The task force was immediately
     Investigator Bob King was assigned     ping the telephone line. Dana’s body was     reconstituted.
the Rebollar case. A witness came for-      so badly decomposed when it was found             Anthony Shore had pled guilty in
ward with information that he had seen      that the medical examiner said that          1998 to two cases of indecency with a
a van parked just a couple houses away      without the garrote of a toothbrush and      child involving his daughters and
from Diana’s residence and that a man       the yellow nylon rope left around her        received deferred adjudication. In com-
had been loading what appeared to be a      neck, he would not have been able to         pliance with his conditions of probation,
roll of carpet into the back of it. The     determine the cause of death. Detective      he had provided a DNA sample that was
witness said that something about it        Wedgeworth of the Harris County              entered in CODIS.
caught his eye and made him suspect a       Sheriff ’s Department was assigned the                            Continued on page 10

                                                                                                                        PAGE 9
          THE TEXAS PROSECUTOR




Continued from page 9                             The second “bonus” case Shore           County, two prosecutors were assigned
     Prior to pleading on his sexual         offered was an aggravated sexual assault     to the Shore cases. Kelly Siegler had
offenses, Shore had worked as a lineman      of a 14-year-old high school student         worked with the task force and prepared
for Southwestern Bell. When he was           who returned home in 1993 to find            the warrant for his arrest. Terese Buess,
placed on probation, he was terminated       Shore waiting for her in her home. He        the chief prosecutor of the district court
and worked odd jobs until his most           duct-taped her eyes and mouth, tied her      where the cases landed, worked with
recent career as a tow truck driver.         hands with wire behind her back, and         Kelly.
     When Shore was arrested he was          sexually assaulted her after threatening          We decided to present only one of
charged with capital murder for the kid-     her with a knife. This victim was unable     the capital murder cases as the case in
napping, sexual assault, and murder of       to identify anyone because her assailant     chief and to not offer evidence of the
Maria Estrada. He was interrogated but       wore a t-shirt over his head; her only       extraneous offenses during the guilt
maintained for several hours that he         descriptors were that he was a white         phase. Although at least two other cases,
knew nothing about Estrada. Sgt. John        male with no accent. Shore named the         those involving garrotes, could have
Swaim and Officer Todd Miller of HPD         address where this offense occurred, and     qualified as signature crimes and been
individually worked to get Shore to con-     HPD records were pulled up concerning        admissible up front, we felt that it would
fess, and each described him as extreme-     that case. Later DNA analysis of this vic-   be easier to qualify jurors during death
ly manipulative, even calling the officers   tim’s sexual assault kit matched Shore’s     penalty voir dire if they didn’t realize
by their first names. Finally Shore told     DNA profile. Shore bragged that he “did      that the defendant was a serial killer:
Miller that he didn’t trust him and asked    this one” to prove to himself that he did-   “Could you conceive of a situation
to speak to “John.” When Sgt. Swaim          n’t have to kill after he raped.             where you have convicted someone of
sat down, Shore offered to tell him               Shore confessed to the murders of       killing multiple victims and ever find
about the murders they were aware of         Estrada, Rebollar, and Sanchez as well.      that they are not a future danger?”
and to give Swaim “two bonus” cases he       As he detailed each murder, he provided      would have been a lethal question for
knew nothing about.                          “excuses” for why he had to kill each. In    good State’s jurors. If for any reason we
     Shore asked Sgt. Swaim if he knew       Shore’s mind, if a child/woman fought        were unsuccessful in getting a capital
anything about Laurie Tremblay, whose        his sexual advances, then he had to kill     conviction on the first case, there were
body was found behind a Ninfa’s restau-      her rather than risk losing his job and      three more cases waiting. The Maria
rant in 1986. Swaim did know because         family. He calmly ate a fast-food meal       Estrada case was selected as the primary
that had been his case. Laurie was a 15-     after his confession was completed.          case. Although it was not the first of
year-old girl strangled to death by a lig-        A total of four capital murder          Shore’s capital murders chronologically,
ature and dumped at the back of a            charges were filed, one each for Laurie      it was Maria’s fingernail clippings that
restaurant. Unlike the other three girls     Tremblay, Maria Del Carmen Estrada,          led to his identification and made for a
who had been strangled with a ligature       Diana Rebollar, and Dana Sanchez. A          logical and complete story even when
and garrote, there had been no ligature      trial date was set on the first day Shore    the other extraneous murders were
left behind and no evidence that a gar-      appeared in court. The decision to seek      removed.
rote had been used. Shore told Swaim         the death penalty was made after consul-          Once a capital murder conviction
that Laurie had been his first killing and   tation with the Division D Chief, the        was in place, we planned to backtrack
that he had not used any wood with the       Trial Bureau Chief, and the District         and present information in chronologi-
rope. He said that the ligature broke        Attorney, Chuck Rosenthal.                   cal order. As each offense was presented,
twice before he succeeded in killing                                                      the pertinent portions of Shore’s confes-
Laurie and that he damaged the nerves                                                     sion would then be played. Because
                                             Preparations for trial
in his fingers during this offense. From                                                  there was so much punishment evi-
                                             As with every capital murder case where
then on, he said, he used a piece of wood                                                 dence, we prepared a chart listing dates
                                             the death penalty is sought in Harris
or something to twist the ligature.

  PAGE 10
                                                                                        JANUARY/FEBRUARY 2005




of offenses and other important events. Estrada’s fingernail clippings had to be Shore of murder rather than capital
As witnesses testified, they initialed the duplicated. Katherine Long of Orchid murder because they felt the evidence of
information on the chart that they had Cellmark, the Dallas laboratory that sexual assault was weak. The jury quick-
just testified to, and when the last wit- originally obtained the male profile, ly disagreed.
ness was finished, a two-board chart was compared that profile to known samples          Shore’s primary attorney, Alvin
offered into evidence for the jury to use. of Maria’s blood and Shore’s buccal swab Nunnery, then gave a punishment open-
The biggest task was finding all the wit- and produced the necessary report for ing and announced that his client had
nesses for each of the four capital mur- trial. Then all of the evidence from the ordered both defense lawyers to refrain
der cases, the rape victim from 1993, other three capital murders was submit- from cross examination of the upcoming
Shore’s children (also sexual abuse vic- ted to Long for testing. The HPD Crime witnesses because he knew and accepted
tims), and as many of the significant Lab DNA Division was still shut down, that he deserved the death penalty. This
people in his life as possible. Gabriel and it was important to not permit the meant that testimony proceeded quickly
Vasquez, the DA’s investigator assigned defense a viable issue by using any of and witness flights and travel plans had
to this case, had his work cut out for their old DNA results. Not only was evi- to be rearranged.
him. During the summer months he dence that had produced results in the                  In addition to the three other capi-

located, and contacted the Not only was evidence that had
hunted for, researched,                                                                            tal murder cases, the jury


                                  produced results in the past retested, school student who Shore
                                                                                                   heard from the high
people we needed, and sur-

                                  but all crime scene evidence was also she was 14. Jurors wept as
prisingly, everyone was in                                                                         sexually assaulted when

October 18. Gabriel had to re-examined and tested to prevent
place and ready to testify by

work with the Department any accusation by appellate lawyers
                                                                                                   she described not only


                                  in the future that prosecutors
                                                                                                   Shore’s sexual assault of
of Homeland Security to                                                                            her, but also how he made

to Houston from Mexico—a selectively chose what was tested.
bring Maria Estrada’s father                                                                       telephone calls to her
                                                                                                   home afterwards and ter-
task that involved repeated                                                                        rorized her. The jury also
attempts to pick up a temporary visa past retested, but all crime scene evi- heard from Shore’s ex-wife and two girl-
from the embassy in Mexico City and dence was also re-examined and tested to friends who presented chillingly similar
rescuing the poor man from detention prevent any accusation by appellate versions of Shore drugging each of them,
by Immigration at Intercontinental lawyers in the future that prosecutors having sex with them while they were
Airport because the name on his airplane selectively chose what was to be tested. unconscious, and choking them during
ticket was not exactly the same as that No results were obtained for Dana sexual intercourse. One of Shore’s girl-
on his visa. One of Gabriel’s finest Sanchez or Laurie Tremblay, but a hair friends testified that during the time she
moments was finding the mother of one found on 9-year-old Diana Rebollar’s lived with him, Shore drove her van,
of Shore’s murder victims who had body matched the defendant’s DNA which was brown with a horizontal tan
moved from motel to motel and finally profile.                                      stripe (an exact negative of what the wit-
out of state after her child’s death.                                               ness described) and that the month of
     DNA testing had to be requested. The trial                                     Diana Rebollar’s murder, Shore ripped
CODIS will provide results when appro- With a jury and two alternates in the out the van’s carpeting and replaced it.
priate, but because they have such a box, testimony began on October 18,                 Shore’s two daughters testified
small staff, their partnership agreement 2004. Shore placidly watched as Maria about the sexual abuse he perpetrated
stipulates that they will not testify—to Estrada’s case was presented to the jury. upon them in their childhood. One
do so would bring their operation to a His attorneys asked the jury to convict daughter, diagnosed as autistic,
halt. So the original result from Maria                                                                  Continued on page 12
                                                                                                                  PAGE 11
           THE TEXAS PROSECUTOR




Continued from page 11
                                              he had received a letter from Shore ask- away with it, minimizing his own
described how Shore threatened to put         ing that his drawings be copied and sent responsibility and fault, and above all,
her in a mental institution, called her       to him in jail so that he could forward  extremely intelligent. She had read the
“shithead,” locked her in their house         them for publication. He wrote,          statements of the girlfriends and ex-wife
with windows glued closed and a keyed         “Because of my newfound notoriety it     and offered the opinion that she believed
deadbolt. She said that she expected her                                               Shore was merely practicing his crimes
                                              will be worth a small fortune before all is
younger sister to be the one to make          said and done.” Shore’s most recent girl-on the significant women in his life to
something of herself, and when she real-                                               fill in the slow times between his mur-
                                              friend testified that Shore had sent her a
ized that her father was doing the same                                                ders. Ultimately, she described Shore as a
                                              50-page rendition of the story of his life
things to her as to her sister, she decided   blaming cocaine for most of his criminal psychopath and explained that the acts
to tell. One of the few times Shore shed      acts. This witness also testified about  that he committed were not compelled
a real tear was when his youngest daugh-      another letter she received from Shore   by his personality but were free choices

  Probably one of the most valuable witnesses for
                                                                                                that he made. She explained to

  the State was Shore’s sex offender treatment
                                                                                                the jury that the murders and

  provider. She believed Shore was merely practicing sex but rather with control and
                                                                                                the rapes had nothing to do with


  his crimes on the significant women in his life to                                            noted that killing was the ulti-

  fill in the slow times between his murders.
                                                                                                mate control over another per-
                                                                                                son. Despite Shore’s orders to
                                                                                                not ask questions of the punish-
ter told the jury that she had a biological telling her that he was planning to ment witnesses, the second chair attor-
father but that he had been dead to her escape, that he would come and “snatch” ney attempted to have the sex offender
for years.                                    her, and that she should have cash, treatment provider say that Shore pre-
     Shore’s sister presented the portrait clothing, and medications on hand for sented no danger when incarcerated, but
of Shore as a man with a genius IQ who when they would both run away. She she responded that without a doubt,
was talented both musically and artisti- was so convinced and concerned that he Shore was one of the most dangerous
cally. She also showed his dark side, was capable of fulfilling that promise men she had ever come across and that
describing how at age 5 he stabbed her that she turned over the letter to he would continue to commit acts of
in the head with a knife for no reason, Investigator Bob King.                         violence no matter where he was.
killed a cat because it would not stay at          Probably one of the most valuable         The jury received the case for pun-
their house, and played a game as an witnesses for the State was Shore’s sex ishment deliberations and a short hour
adolescent of ringing a doorbell and offender treatment provider. She had the later buzzed with their verdict: death.
groping the breasts of whatever female psychological test results obtained when
answered the door. She said he did not Shore was first placed on probation and
                                                                                       Conclusion
have a temper and that he acted so inap- assigned to complete sex offender treat-
                                                                                       While we realized that a case this horren-
propriately with his children that she ment. She described his psychological
                                                                                       dous was a slam dunk in one sense, in
reported him to CPS on one Houston make-up for the jury as narcissistic, con-
                                                                                       another it was a nightmare to coordinate
trip. She also said that during a jail visit, trolling, and grandiose, believing he is
                                                                                       all of the witnesses and deal with the
Shore told her that he was going to pub- above and better than anyone else, well
                                                                                       emotions of Shore’s victims and their
lish a story of his life.                     aware of society’s rules but willing to surviving parents. Our victim-witness
     One of Shore’s friends testified that break any of them if he thinks he can get
                                                                                       coordinators were a godsend and provid-

  PAGE 12
                                                                                             JANUARY/FEBRUARY 2005




ed the emotional support those witness-
es required, but we were dealing with
years of pent-up rage and grief. How do
                                                                                  THE AGONY COLUMN
                                                                                 By Rick Miller
we describe the experience of such a                                             County Attorney in Belton
trial? Each of us teared up at different
times during the trial, and each of us
was overwhelmed at times with the
enormity of evil Shore wrought upon
our community, the three young
women and one child he murdered, his
own children, and his loved ones.
                                             Enforcing open meetings
     And yet even at its lowest points,      How one county attorney educated local officials on vio-
throughout the preparation and trial
presentation, we both were constantly        lations of the Open Meetings Act—and eased small-town
reassured and strengthened by the            friction in the process
thought of those who had diligently and
                                                                                           However, with the increasing emphasis

                                             I
obsessively worked to solve the Estrada,          don’t know about you guys, but I
Rebollar, Sanchez, Lesher, and                    am periodically plagued by intermit-     on open government, a number of com-
Tremblay cases, especially Hal Kennedy,           tent eruptions of small town poli-       plaints about the lack thereof manage to
Bob King, Roger Wedgeworth, Danny            tics. I don’t know what it is about the       find their way to your desk, leaving you
Billingsley, D. D. Shirley, and John         rural setting of some of these tiny com-      the dilemma of what to persue. Open
Swaim. Our work leading up to the trial      munities, but there always seem to be         meeting requirements present some of
was but a drop in the bucket compared        competing factions who get downright          those problems, and a recent experience
to their efforts, and we are proud to join   nasty at times. For example, a few years      in my bailiwick is illustrative.
them as part of the team that put a seri-    ago we had a court of inquiry to invali-
al killer where he belongs: on death row.    date a small city’s election where some-      At the city council meeting
                                             one tampered with the ballots to favor        Bartlett is a small community sitting in
                                             the candidates supported by one faction.      both Bell and Williamson Counties.
                                             Maybe it’s a pathetic power thing, but        Fortunately (or unfortunately), the city
                                             some folks can be quite irrational, petty,    hall is on the Bell side of the line. At a
                                             and volatile in their political interac-      city council meeting, the council’s agen-
                                             tions.                                        da included an item to discuss, in exec-
                                                  Unfortunately, the prosecutors’          utive session, personnel matters regard-
                                             office is sometimes dragged kicking and       ing members of its police department
                                             screaming into these disputes, because        and another city administrator. The
                                             on occasion one side tries to use the law     meeting’s agenda properly named each
                                             against the other, and we are forced to       employee and cited the appropriate sec-
                                             assess whether prosecutorial involve-         tion of the Government Code’s Chapter
                                             ment is warranted. Many times there           551 as required by the Open Meetings
                                             will be nothing more than an ethical          Act. So far, so good.
                                             lapse, if anything, but not a criminal act.
                                                                                                                Continued on page 14

                                                                                                                        PAGE 13
          THE TEXAS PROSECUTOR




Continued from page 13                      to object,4 which was the situation in       investigation. Statements from the
     The employees in question attended     Bartlett.                                    employees were taken and the video and
the council meeting, and when that                Violation of the closed meeting        audio tape reviewed. Council members
agenda item was reached, the mayor          provisions is punishable by one of those     were invited to come to the office, but
simply stated that the council was going    non-Penal Code misdemeanors: a fine          only the mayor and mayor pro tem, with
into executive session. The council         from $100 to $500 and/or jail from one       the city attorney, accepted the invita-
immediately got up, walked into anoth-      to six months. While Section 551.144         tion. For whatever reason, both gave
er room, and closed the door. The           provides that an offense is committed if     statements adamantly claiming that all
employees went in after them and specif-    a member of the governmental body            bases had been legally touched in accor-
ically asked for an open forum on the       knowingly calls or participates in an        dance with the Open Meetings Act.
personnel matter, which was declined,       unauthorized closed meeting, it does not     After a review of the evidence and the
and the employees were asked to leave       matter that the actor did not know the       law, I decided that the Open Meetings
the room. After the executive session—      meeting was prohibited.5                     Act had indeed been violated, and, in

                                            There are only two reasons for the commission
and without any public discussion—

                                            of an open meetings violation: ignorance or
the council fired all of the employees.

                                            arrogance.The former is treated by training;
All of this was captured on both video


                                            the latter is confronted with criminal penalties.
and audio tape by the employees.
Guess where the employees went next?

The violation
The Open Meetings Act was violated in              When the employees’ complaint         view of the officials’ denial of responsi-
several respects. First, Section 551.101    came to the county attorney’s office, my     bility, a two-count information was filed
requires that before going into a closed    first question was whether I had jurisdic-   against each member of the Bartlett City
session, a council must first convene in    tion. Article 4.05 of the Code of            Council in attendance at the particular
open session, announce that a closed        Criminal Procedure assigns to district       meeting. Rather than having warrants
meeting will be held, then identify the     courts all misdemeanors involving offi-      issued, however, I decided on issuing a
section of Chapter 511 that permits the     cial misconduct, which is defined in         summons for each defendant.
closed meeting on that topic. While it      Article 3.04 as “an offense that is an            (Very frankly, the one specter that
would have been sufficient for the mayor    intentional or knowing violation of a        haunted me was the thought of opening
to simply refer to the specific item on     law committed by a public servant while      a Pandora’s box of petty grievances and
the posted agenda,1 even that did not       acting in an official capacity as a public   complaints from my county’s small com-
occur.                                      servant.” However, because Article V,        munities. There were a few complaints,
     Secondly, Section 551.074 permits a    Section 8, of the Texas Constitution         but they were easily analyzed and deter-
closed meeting to discuss personnel mat-    defining the jurisdiction of district        mined to be without merit. One com-
ters, but not if the employees involved     courts was amended in 1985 to provide        plaint regarding an alleged closed meet-
specifically request a public hearing.2     an exception where exclusive, appellate,     ing violation in another community did
Before failure to honor a request for a     or original jurisdiction is conferred by     appear to have merit, and at the time
public hearing becomes a violation, the     “other law” on another court, it has been    this article was written was under active
employee must object when the govern-       reasoned that district courts and county     investigation.)
mental body begins to go into executive     courts-at-law have concurrent jurisdic-           The ultimate disposition of the filed
session; silence can mean a waiver of the   tion over misdemeanor offenses involv-       cases was a topic of discussion in my
right to a public hearing.3 However,        ing official misconduct.6                    office, and I would like to take credit for
there is no waiver if the particular               Determining that jurisdiction was     it, but it was actually suggested by my
employee does not have an opportunity       also vested in my office, I initiated an     good buddy Joe Grubbs, County and

  PAGE 14
                                                                                                          JANUARY/FEBRUARY 2005




District Attorney in Ellis County. At          Conclusion                                               Continued from page 6
Joe’s suggestion, I contacted the Texas        Such small community friction will
Municipal League and found that it             occasionally bring criminal complaints
would most graciously be available at no       to your office. Like the cases brought to
cost for training local officials about
open meeting procedures. When the
                                               you by police agencies, you have to deal
                                               with them—you can’t just dismiss them
                                                                                                         Newsworthy
attorney for the Bartlett officials came to    out of hand as a nuisance, at least when
discuss their cases, I proposed that they      the elements of an offense are present.
arrange for and attend TML training.           However, there are only two reasons for                  Two Employee of
Upon certification from the TML that           the commission of an open meetings
they had attended the training, the cases      violation: ignorance or arrogance. The                   the Year finalists
would be dismissed. This seemed the            former is treated by training; the latter is
fairest way to resolve the problem and         confronted with criminal penalties. I                    in Denton County
                                                                                                        Eleven finalists for the John A. Scott Award
head off future offenses.                      have equated this incident with the old
     And that’s what happened: The             “first dog bite” rule of civil law, and the              were named in late September. Two of those
councilmen attended the course. And                                                                     finalists work in the criminal district attorney’s
                                                                                                        office: Sue Groves and Pat Mason.Though nei-
                                               message has been sufficiently communi-
                                                                                                        ther woman won the award, we congratulate
members of other local governmental            cated to my county’s small governmental
                                                                                                        them for being finalists.
bodies, including city councils, water         bodies: This one’s free, the next one’s
district boards, and school boards,            not.                                                           “Pat and Sue put forth an honest effort
attended too.                                                                                           that powers the hot check department and
                                                                                                        sets goals of hard work, having fun, and being
                                                                                                        honest, for all to achieve,” said Dennis Cox,
     Although a public release of the sit-     Editor’s note: Contact the Open
uation had not been made, word got out         Government hotline from the Attorney                     head of the hot check division. “The full bene-
and the media picked up the story; one         General’s Office at 877/673-6839 for                     fits of their contribution will be felt for years
local newspaper even ran a favorable edi-                                                               to come.”
                                                                                                              The John A. Scott Award recognizes a
                                               information on open meetings.
                                                                                                        county employee’s commitment to excellence
torial. Other governmental entities
inquired about how to get training, and
                                               Endnotes                                                 and dedication to the residents of Denton
I referred them to the TML or the              1 Lone Star Greyhound Park, Inc. v. Texas Racing         County; it is named for John Scott, the former
                                               Commission, 863 S.W.2d 742 (Tex.App.—Austin 1993,        of director of facilities for the county who died
                                                                                                        in a plane crash in 1998.
Attorney General’s Office, which also
                                               writ denied).
provides free training on request. (I have
since been informed that TML doesn’t           2 Thompson v. City of Austin, 979 S.W.2d 676
                                               (Tex.App.—Austin 1998, no writ).
have the resources or ability to do such                                                                  Free DWI training
                                               3 Bowen v. Calallen Independent School District, 603
training, so the AG’s training is the only
type still available.) I suspect that a num-   S.W.2d 229 (Tex.App.—Corpus Christi 1980, writ ref ’d     Remember that Clay Abbott, our DWI
                                               n.r.e.).                                                  resource prosecutor, is available for free
                                                                                                         training of both police and prosecutors. He
ber of lawyers acting as city attorneys for
                                               4 Gardner v. Herring, 21 S.W.3d 767 (Tex.App.—            will travel to your neck of the woods to
these communities had to dust off the
Government Code and pass along some            Amarillo 2000, no writ).                                  train, but he needs your help finding and
sage advice about how to conduct meet-                                                                   reserving an auditorium and getting the
                                               5 Tovar v. State, 978 S.W.2d 584 (Tex.Crim.App. 1998).    word out to local cops. Clay can teach a
                                                                                                         couple of hours or a full day on whatever
ings. In all, it was a win-win situation:
The public interest was well served, and       6 Campos v. State, 783 S.W.2d 7 (Tex.App.—Houston         intoxication-related topic you need, so get
it looks like Bartlett and other towns in      [14th Dist.] 1989, pet. ref ’d).                          on his schedule soon by calling him at
                                                                                                         512/474-2436 or e-mailing abbott@
                                                                                                         tdcaa.com.
my county, big and little, are better
motivated to follow the law. This
shouldn’t be a problem again.
                                                                                                                                Continued on page 25

                                                                                                                                           PAGE 15
          THE TEXAS PROSECUTOR




                                    CRIMINAL LAW
                                                                                       off the road. All three vehicles came to
                                                                                       rest in the unpaved area between the
                                                                                       eastbound highway and the access road.
                                                                                       The 18-wheeler had damaged Meister’s
                                  By Rob Canas                                         van, and the passenger compartment of
                                 Assistant Criminal District Attorney in Dallas County
                                                                                       Clay’s truck lay underneath its wheels.
                                                                                       Susan Clay died at the scene. Alton
                                                                                       Meister died less than a month later.
                                                                                            When the police spoke to Wilson

Little black boxes                                                                     that night he stated his speed was
                                                                                       between 35 and 40 miles an hour. The
                                                                                       police could not establish Wilson’s
Technology that helps prosecute crimes arising from speed due to the weather and focused
vehicular collisions                                                                   more on the road construction and
                                                                                       weather instead as causes of the colli-
             hen people commit crimes, to the Mesquite Police Department sion. They filed no charges against

W            we expect them to cover it because it had been the site of 18 acci- Wilson. At the time, neither the police
             up or at least minimize their dents, 12 of which involved big trucks nor Wilson knew the 18-wheeler was
involvement. Rarely do prosecutors and like Wilson’s. Five days earlier, two 18- equipped with devices that measured
investigators uncover all the facts or find wheelers drove off the road while driving and recorded Wilson’s actual speed at
one powerful bit of information that through this construction zone; one of the time of the collision.
unravels a suspect’s cover-up.               them stated the road was so wet and
    John Harvey Wilson, Jr., caused two      slick from a recent rain that he thought
deaths and tried to escape accountabili- there was ice on the road.
                                                                                       Civil litigation
ty, but a small piece of technology               When Wilson drove through this Clay’s and Meister’s survivors filed law-
spoiled his plans.                           construction zone, he lost control of his suits against Wilson and his employer
                                                                                       Smithway Motor Xpress, Inc.
    On March 28, 2000 at 7:41 p.m., vehicle. It jack-knifed, crossed the center
                                                                                       Predictably, Wilson and Smithway
Wilson was driving west on Highway 80 grass median and entered the eastbound
                                                                                       denied liability and shifted responsibili-
in a blue, 1999 Peterbilt 18-wheeler lanes of traffic.
loaded with 44,000 pounds of lead                 At 7:41 p.m. Susan Clay was driving ty for the deaths to the road construc-
                                                                                       tion and bad weather.
ingots. That night, the Dallas-Fort east in the left lane of Highway 80 in her
                                                                                            Early in the discovery process, the
Worth area experienced a severe storm 1989 Mitsubishi pick-up. In the right
                                                                                       plaintiffs learned Wilson’s truck was
with high winds and heavy rain.1 The lane near Clay’s truck, Alton Meister was
                                                                                       equipped with a satellite communica-
storm was so severe that it produced an riding in a 1998 Ford Winstar van. He
                                                                                       tion system called the Qualcomm sys-
F3 tornado in downtown Fort Worth.2 was not wearing a seat belt.
                                                  Wilson’s 22-ton truck hit Clay’s tem, which allows dispatchers and driv-
                                                                                            4
When Wilson drove through Mesquite,
                                                                                       ers to communicate and tracks the
wind speeds were 30–50 miles per hour, pick-up first. The 18-wheeler continued
                                                                                       truck’s location. The plaintiffs requested
and the rain reduced visibility to half a across the eastbound lanes of traffic forc-
mile or less.3                               ing the smaller truck in the same direc- the Qualcomm information, including
                                                                                       how much time Wilson spent traveling
    At 7:41 p.m., Wilson passed tion. Then the 18-wheeler impacted
                                                                                       and how much distance he covered in
through a construction zone well known Meister’s van and forced both vehicles


  PAGE 16
                                                                                               JANUARY/FEBRUARY 2005




the days and hours preceding the colli-         er, and Smithway used the ECM in its         45 seconds prior to the panic stop and
sion, to take Wilson’s deposition.              vehicles because it increased driver and     the 15 seconds after, thus providing a
     The plaintiffs deposed Wilson on           vehicle efficiency—and therefore the         picture of the vehicle’s performance for
February 9, 2001. He testified to two           company’s profit per trip.                   the minute surrounding the panic stop.
crucial facts: First, he testified the weath-        In addition, the ECM gathered           Such information was crucial in the
er caused him to slow his vehicle to            information on vehicle performance.          criminal case against Wilson.
between 45 and 50 miles an hour at the          Sensors placed throughout the vehicle
time of the collision. Second, he testified     provided measurements to the ECM             Criminal litigation
that the driving times and distances in         about the vehicle’s speed,7 transmission     On April 5, 2002, a Dallas County
his logbooks were accurate. The plain-          revolutions, brake activity, and clutch      grand jury indicted Wilson on two cases
tiffs confronted Wilson with satellite-         activity.                                    of criminally negligent homicide; the
tracking information from his vehicle                The ECM connected to a small            indictments included the allegation that
that contradicted his testimony about           computer called a Road Relay, which          Wilson used his 22-ton 18-wheeler as a
his driving times and distances.                mounts to the dashboard and presents         deadly weapon. Wilson faced 10 years in
Falsifying logbooks is a violation of fed-      the ECM measurements to the driver in        prison and would not be eligible for
eral law, so Wilson’s attorney ended the        a readable format. Smithway downloads        parole until he served half of his sen-
deposition. At his next deposition,             the Road Relay information twice a           tence.
Wilson invoked his Fifth Amendment              month and uses it to evaluate driver and          Wilson and Smithway settled the
rights when questioned about his log-           vehicle efficiency. The company either       civil lawsuit long before Wilson was
books.                                          downloaded the information remotely          indicted. Although the victims’ families
     In addition to the Qualcomm                via the Qualcomm system or directly to       received a substantial settlement and
records, the plaintiffs learned of two          a computer via software specific to          were emotionally past the accident, they
other pieces of technology on Wilson’s          Cummins engines. When the plaintiffs         understood the importance of holding
truck. However, neither Smithway nor            in the civil suit requested the Road Relay   Wilson criminally responsible. The most
Wilson gave the plaintiffs a definitive         information, they chose to download it       important thing to them was not a
statement about what information these          to a computer and hired a person expe-       prison sentence; rather, they wanted
devices contained. The plaintiffs had to        rienced with the Cummins engine soft-        Wilson never to drive a commercial
take several depositions of high-ranking        ware to do so.                               truck again.
Smithway executives before the plaintiffs            The vehicle performance informa-             Plea negotiations broke down, and
learned these devices contained informa-        tion gathered by the ECM and Road            the case was set for trial. In preparing for
tion vital to their case.5                      Relay was not the most important infor-      trial, we had several hurdles to over-
                                                mation to the case; instead it was the       come, the biggest of which was that road
ECM and Road Relay                              information gathered during a panic          construction had caused other drivers to
                                                stop that was most important. A panic        lose control of their vehicles on the same
technologies
                                                stop occurs when the driver applies the      stretch of highway as Wilson’s accident.
The engine in Wilson’s truck, a
                                                brakes causing vehicle deceleration of 9     Undoubtedly, Wilson’s attorney would
Cummins N-14 engine equipped with
                                                or more miles per second.8 The ECM           argue the road construction had design
an ECM, or electric communications
                                                sensors measuring brake activity signal      flaws and inherit hazards. The chief
module,6 used computer technology to
                                                the Road Relay when a panic stop             defense witness on this point would have
increase its efficiency. The ECM gov-
                                                occurs, and Road Relay preserves the         been a Mesquite Police Department
erned the engine’s speed and horsepow-
                                                vehicle performance information for the
                                                                                                                  Continued on page 18

                                                                                                                            PAGE 17
           THE TEXAS PROSECUTOR




Continued from page 17                    tion, they asked us for a plea bargain Endnotes
accident reconstructionist.               offer. Being portrayed to a jury as a liar 1 Expert Report of David Finfrock, Meteorologist, pg.
     Another hurdle would be the severe who caused the death of two people was 2.
                                                                                     2 Ibid.
storm passing through Mesquite at the not a position Wilson wanted to be in.
time of the collision. Wilson’s attorney Based on conversations with the victims’
would appeal to a jury’s common sense families, our offer was 10 years’ deferred 3 Id.
and argue that the severe weather caused probation, a fine, a deadly weapon find-
                                                                                     4 Defendant John Harvey Wilson, Jr’s Objections and
the collision.                            ing, and a probation condition that Answers to Plaintiff Gwen Meister’s First Set of

panic stop informa- Comparing the ECM data showing Wilson’s
     Without      the                                                                                           Interrogatories.


tion we would have actual speed to his testimony regarding his
                                                                                                                5 In fact, Smithway execu-
                                                                                                                tives maintained in deposi-
not been able to
                        speed showed undoubtedly that he was lying. tions thatany valuabledidinfor-             capture
                                                                                                                            the ECM       not

                                                                                                                mation. Not until the plain-
overcome these hur-
dles. The panic stop                                                                                            tiffs questioned Smithway’s
information showed that from 45 sec- Wilson surrender his commercial dri-            Director of Maintenance did they learn the ECM cap-
                                                                                     tures speed information.They also learned that despite
onds to two seconds before the panic ver’s license. The families received their their requests to preserve the 18-wheeler for inspec-
stop, Wilson’s speed fluctuated between desired result when Wilson pled guilty tion, Smithway removed the ECM from Wilson’s truck
                                                                                     and placed it in another vehicle. Smithway did this after
                                                                                     they had received the requests to preserve the vehicle.
66 and 63 miles per hour—not much. to both cases September 9, 2004.
During these 43 seconds the sensors
showed no brake application. One sec-                                                6 ECM is not a universal name, but most engines have
                                          Conclusion                                 something similar.
ond before the panic stop, Wilson’s
                                          Criminal cases arising from vehicular
                                          collisions are tough to prove. 7 The ECM calculates speed from signals put out by
speed dropped to 59 miles per hour, and
then he hit the brakes to drop his speed                                             the transmission’s road-speed sensor and through tire
                                          Prosecutors and investigators should be revolutions.
to 33 miles per hour, triggering the
                                          aware that recently built vehicle engines
                                          have some type of ECM capability, and 8 The amount of deceleration will vary according to
panic stop.
     We prepared to argue that the severe                                            the manufacturer design.
                                          the technology is fast becoming more
storm, the road construction, and
                                          sophisticated and can provide valuable
Wilson’s high speed created a substantial
                                          information on vehicle performance and
and unjustifiable risk of an accident and
                                          driver actions or inactions. Retrieving
that ordinary people would have slowed
                                          ECM and Road Relay information will
their vehicle under the circumstances.
                                          require the assistance of a person experi-
The ECM data showing lack of brake
                                          enced with the engine and technology in
activity until one second before the
                                          question, and in most cases, that person
panic stop led to the inescapable conclu-
                                          will be a current or former employee of
sion that Wilson negligently failed to
                                          the company that built the engine.
appreciate the risk of an accident. Also,
                                          Pursuing this type of evidence is impor-
comparing the ECM data showing
                                          tant because it can make or break your
Wilson’s actual speed to his testimony
                                          case. Without it, we would never have
regarding his speed showed undoubtedly
                                          been able to hold Wilson accountable
that he was lying.
                                          for the deaths of Susan Clay and Alton
     After we confronted Wilson and his
                                          Meister.
attorney with the panic stop informa-


   PAGE 18
                                                                                          JANUARY/FEBRUARY 2005




                                       CRIMINAL LAW
                                                                                        commensurate with the examination
                                                                                        and testimony provided. Nor were the
                                                                                        examiners and other personnel actively
                                                                                        engaged in DNA analysis tested for pro-
                                   By Marie Munier                                      ficiency by external testers.
                                  Trial Bureau Chief
                                 Harris County District Attorney’s Office               • The lab’s managerial staff did not have
                                                                                        the authority and resources to discharge
                                                                                        their duties and meet the requirements
                                                                                        and standards established by the FBI.

Houston, we have a problem.                                                             Annual audits of the laboratory were not
                                                                                        completed and documented.
                                                                                        • The DNA laboratory did not have an
How the Harris County DA’s office is picking up the
                                                                                        established, maintained, and document-
pieces after the Houston Police Department crime lab’s                                  ed quality control system for calibrating
                                                                                        and cleaning equipment, preventing
very public implosion                                                                   contamination, confirming findings,
                                            to develop a computerized method for        interpreting data, or conducting admin-

I
    n November 2002, a Houston inves-
    tigative reporter began a series con-   storage of data on each case reviewed. To   istrative and technical case reviews.
    cerning irregularities and mistakes     establish the review process and the cri-   Specific violations included insufficient
made by DNA analysts at the Houston         teria, I also had help from Roe Wilson in   audits of the laboratory documented in
Police Department’s (HPD) DNA lab.          our Post Conviction Writs division, as      the lab’s quality manual as well as a lack
The initial news reports resulted in the    well as the other senior prosecutors. The   of follow-up of the audits conducted.
chief of police suspending all work by      domino effect of the television reports,    The laboratory did not specify and doc-
the DNA section of the HPD                  newspaper reports, and subsequent           ument the responsibility, authority, and
Laboratory, participating in an inde-       internal and external events has echoed     interrelation of the personnel who man-
pendent audit of the lab’s DNA section,     throughout the legal and scientific com-    aged, performed, or verified the work
comparing the HPD’s procedural stan-        munity. This article examines what hap-     affecting the validity of the DNA analy-
dards to FBI standards, and reviewing       pened in Houston and is intended as a       sis. The audit team found that the labo-
the first seven cases highlighted in the    wake-up call for other jurisdictions        ratory personnel and technical leader
reporter’s story.                           using DNA evidence.                         had not satisfied his degree or educa-
     The Harris County District                                                         tional experience as required.
Attorney’s Office conducted an initial      The problems within HPD’s                   • Case notes were not adequate, nor did
review of the cases reported and hired a                                                the laboratory have written procedures
                                            DNA Laboratory                              for taking and maintaining case notes to
local, private DNA lab to review the        Auditors from three separate accredited
notes and documents supporting the                                                      support conclusions drawn in reports.
                                            labs in Texas conducted an independent
DNA testing on the cases identified by                                                  The laboratory did not retain or return
                                            review1 of the HPD DNA laboratory in
the reporter. At the same time, I was                                                   a portion of the evidence sample or
                                            December 2002. The audit found
assigned to plan and coordinate the DA’s                                                extract whenever possible. The laborato-
                                            numerous instances of non-compliance
office procedures for identifying cases                                                 ry did not conduct internal reviews of all
                                            with FBI standards regarding lab opera-
needing review and establishing review                                                  case files and reports to ensure the con-
                                            tions. Here are just a few:
standards and procedures. I enlisted help                                               clusions and supporting data were rea-
                                            • The laboratory personnel did not have
from the information technology group       the education, training, and experience                          Continued on page 20

                                                                                                                     PAGE 19
           THE TEXAS PROSECUTOR




Continued from page 19                                                                           The district attorneys’ criteria for
                                              The scope of the problem
sonable and within the constraints of         The greater Houston area has more than         determining retesting were:
scientific knowledge.                         four million people. The district attor-       • was there a trial?
     The district attorney’s review of the    ney’s office handles over 100,000 cases a      • was HPD DNA evidence used against
seven cases identified by the investigative   year. The City of Houston Police               the defendant in any way?
reporter corroborated many of these           Department files approximately 60 per-         • did the defendant plead guilty or no
same problems and also found insuffi-         cent of those cases. No information con-       contest? and
cient documentation, no second person         cerning which cases involved HPD               • did DNA testing incriminate the
review, improper sample labeling, and         DNA testing (as opposed to another             defendant in any way?
incorrect statistical analyses.               crime lab) was readily available. To help          Significantly, the relative impor-
                                              identify cases to be reviewed by the dis-      tance of that DNA evidence was not
What happened in Houston                      trict attorney’s office, the HPD matched       weighed. The DNA in a case with six
In response to the independent audit          DNA report numbers with police                 eyewitnesses and a confession would still
and the case reviews, the media, some         reports. As a result, the HPD forwarded        be retested if there was a trial or a plea
defense attorneys, and even some mem-         more than 1,300 offense reports, along         involving DNA evidence that in any way
bers of the judiciary called for an inde-     with their corresponding HPD DNA               incriminated the defendant.
pendent review of the laboratory prob-        lab reports, to the district attorney’s
lems, an independent investigation of         office.                                        Where are we now?
the convictions obtained, and the                  The DA’s office reviewed every cap-       To date, Harris County prosecutors have
appointment of a special prosecutor to        ital murder case resulting in a death sen-     reviewed 1,085 cases. Of that number,
investigate any culpability within the        tence (even the cases not investigated by      410 (or 38 percent), including seven
district attorney’s office. News coverage     the Houston Police Department).                juvenile cases, were identified for retest-
and the thrust of most newspaper and               Next, a team of senior district attor-    ing. Currently, retesting results have
television stories eroded the public’s        ney investigators systematically read the      been received in 367 (or 90 percent) of
trust in the integrity of the Houston         offense reports and identified which           the disposed cases. No person executed
Police Department, district attorney’s        reports resulted in filing charges against     had HPD DNA evidence used against
office, and criminal justice system.          one or more individuals. At the time of        him at trial. Of the remaining cases, only
      Our office began to address the         this writing, a list of 1,085 cases was        one convicted man, Josiah Sutton, has
issues by ordering a complete review of       compiled for review.                           been released from prison and pardoned.
all cases from the HPD DNA lab. Three              Finally, approximately 30 prosecu-        A review of the Sutton case revealed that
actions were taken: (1) retesting DNA         tors painstakingly reviewed the case files     an analyst’s misinterpretation of other-
evidence used to convict persons; (2)         and, at times, trial transcripts to deter-     wise accurate DNA results brought
identifying those cases in which DNA          mine if DNA evidence in the case               about his conviction. Three samples
evidence was used to determine guilt;         should be retested. These same prosecu-        were tested using PCR testing of three
and (3) identifying guilty people not         tors still review the retest reports as they   allele locations by HPD on this case.
prosecuted because of erroneous DNA           are received, and copies of the retest         One was a vaginal swab that revealed a
exclusions. The continuing and more           reports are sent to attorneys representing     mixture of the victim and at least two
difficult challenge is restoring the pub-     the defendants. It is difficult to estimate    other donors. However, HPD incorrect-
lic’s trust in forensic DNA evidence and      the hours of time different staff mem-         ly reported the statistical significance of
in the integrity of the criminal justice      bers have spent on this project—it is in       this inclusion. HPD reported that DNA
system.                                       the thousands.                                 type of Josiah Sutton to occur in 1 out of

  PAGE 20
                                                                                         JANUARY/FEBRUARY 2005




694,000 people among the black popu-        witnesses, the defendant’s documents    lic trust will impact prosecutors deeply.
lation, which overstated the significance   and written statements, and the designa-The best way to restore the public’s trust
by not using a mixture calculation.         tion of the State’s experts. Depositionsis not to show them unequivocally that
Another sample reported to include          are permitted only for the defense and  the science behind DNA profiling is
Sutton, a “jeans” sample, should have       are rarely done. The courts have discre-solid, but rather that their prosecutors
been reported as inconclusive.              tion whether to have any pretrial hear- are watchdogs providing constant over-
     The third sample taken from a stain                                            sight to ensure its integrity.
                                            ings, and pretrial motion practice is lim-
on the backseat of the vehicle where the    ited. There is no requirement to disclose    Prosecutors are responsible for every
sexual assault occurred was read incor-     any bench notes or work product of the  aspect and all evidence in a prosecution,
rectly by the HPD analyst. It is a mix-     scientific witnesses pretrial, but the  whether they knew about it at the time
ture, and the complainant cannot be         opposing party may see these underlying or not, whether they approved or not,
excluded, but one test strip showed a       documents at cross-examination of the   and whether they could realistically rem-
weak finding that excluded Sutton.          particular witness.                     edy it or not. Ultimately, it is the prose-
     Retesting using PCR-based STR               In hindsight, an office policy pro-cutor’s responsibility to ensure the evi-
testing from the private lab were the       viding more liberal discovery to the    dence’s integrity and meet the burden of

 In hindsight, an office policy providing more liberal
                                                                                              production.


 discovery to the defense plus additional pretrial
                                                                                                   Consequently, prosecutors


 scrutiny by the State may have revealed the
                                                                                              must understand the science
                                                                                              and statistics of DNA and know

 pattern of deficiencies in the HPD DNA lab sooner. ate casework, notes, reports, and
                                                                                              how to scrutinize the appropri-

                                                                                              documentation detailing the
same as HPD’s results in one test. But defense plus additional pretrial scrutiny analyst’s qualifications. Prosecutors must
the results were different in private tests by the State may have revealed the pat- be familiar with the FBI’s standards for
of two other samples. A review of the tern of deficiencies in the HPD DNA quality assurance and scientific discipli-
case revealed that, after retesting, the lab sooner.                                nary accreditation and have ongoing
DNA results were accurate, but interpre-        Regardless of the Criminal communication with their lab directors
tation was flawed. Problems arose not Procedure Rules’ constraints or leniency and analysts. Then, prosecutors must
from the science or technology of DNA in disclosure, prosecutors should have assure the accuracy of the evidence—
testing but rather from human error—a spotted these problems and prevented including the availability of defense
lab analyst misinterpreted the results this crisis. The prosecutors’ unfamiliarity retesting. The Harris County District
from two samples.                           with the science of DNA and statistical Attorney’s Office and the Houston
                                            analysis, quality assurance standards, Police Department took the unprece-
Don’t let it happen to you                  proficiency testing analysts, external dented action of retesting every case
In Texas, Articles 28.01, 39.01 and audits, and competent casework allowed where DNA played a part in obtaining a
39.14 of the Code of Criminal the problems to go undetected until the conviction.
Procedure govern our discovery practice. media exposed them.
In a nutshell, pretrial discovery to the        While criminal practitioners may Post script
State is limited to receiving the names of  truly understand how this situation In June 2004, a Harris County District
defense experts. The discovery afforded could happen, can the same be said of Judge, Jan Krocker, requested that a
to defense includes names of the State’s the public? The costs of the loss of pub-                        Continued on page 22

                                                                                                                   PAGE 21
           THE TEXAS PROSECUTOR




Continued from page 21
court of inquiry evaluate the surround-
ing facts to determine if there was prob-
                                                                                         CRIMINAL LAW
able cause to believe that the former                                                By Laura L. Rogers
director of the Houston Police                                                     Senior attorney at the American Prosecutors
                                                                                  Research Institute’s National Center for
Department’s DNA section had com-                                               Prosecution of Child Abuse in Alexandria, Virginia
mitted aggravated perjury. After a brief                                        Reprinted with permission from the NDAA’s APRI
evidentiary hearing conducted by state
District Judge Dean Rucker from                 Emergency medical professionals: helping
Midland, Judge Rucker ruled that any
possible prosecution of the HPD crime           identify and document child abuse and neglect
lab director for perjury would be barred        An outline of several fundamental items that EMTs ideal-
by the statute of limitations. He further
ruled that there was no basis for broad-        ly should note, document, and/or collect when respond-
ening the scope of the Court of Inquiry         ing to a “child in need of assistance” call
to include any other potential criminal
                                                                                               tor prove the father inflicted the injury?

                                                E
offenses. “As a matter of public policy,                 mergency medical technicians
courts do not require performance of                     (EMTs) respond to a home              What evidence establishes that it was
useless acts, nor does the law require the               where an 8-month-old infant is        not an accidental fall down the stairs?
doing of a vain and useless thing that          unconscious and barely breathing. Both         What can EMTs do to assist in the
would be a waste of judicial resources,”        parents are present. The EMT immedi-           preservation and presentation of evi-
Rucker wrote in his order signed in July        ately asks, “What happened?” The father        dence?
2004.                                           anxiously replies, “She rolled off the
     It cannot be stated emphatically           couch and hit her head on the coffee           Crime scene observers
enough: Prosecutors will be held                table.” As the EMT intubates and pre-          Because emergency calls involving chil-
accountable for the actions or inactions        pares to transport the child to the hospi-     dren often do not mandate a tandem
of any agency involved with evidence.           tal, he hears the mother tearfully scold-      response by police, EMTs may be the
Not only the media, but also the defense        ing her husband for shaking their child.       only responders to a potential crime
bar, judiciary, and people of Harris            The father apologizes. The EMT makes           scene. Police notification and response
County ultimately focused their atten-          a mental note that there is no coffee          may occur hours after the EMTs leave.
tion on their prosecutors to bear respon-       table in the room.                             Meanwhile, vital evidence may be
sibility. Prosecutors should not reactive-           At the hospital, the mother is silent     wiped, washed, or thrown away. While
ly respond to allegations but proactively       as the father tells the doctor that he acci-   recognizing that EMTs are under
prevent them.                                   dentally dropped the child as he was           intense pressure at an emergency scene
                                                walking downstairs: “She tumbled a few         and may be hard-pressed to accomplish
Endnote                                         stairs.” The child has a massive subdural      tasks beyond their primary goal of direct
1 Federal Bureau of Investigations, Convicted   hematoma and bilateral retinal hemor-          patient care, they are in a unique posi-
Offender DNA Databasing Laboratories, Houston
Police   Department      Crime    Laboratory—
                                                rhages. She dies. Manner of death:             tion to evaluate, listen to, observe, doc-
DNA/Serology Section, December 12–13, 2002.     homicide. Cause of death: shaking.             ument, or collect items of evidentiary
                                                     Whom does the prosecutor charge           importance that would otherwise be
                                                for this murder? How does the prosecu-         lost. In child abuse or neglect cases, this

   PAGE 22
                                                                                             JANUARY/FEBRUARY 2005




information may assist in determining       guage and avoid opinions and judg-             an event may be considered reliable.
the mechanism of injury and/or identifi-    ments when documenting information.            Failure to note when a statement was
cation of the abuser. Complete and
accurate collection of information, and
timely documentation is crucial.
                                            3   Record verbatim content. Many a
                                                courtroom battle has been fought
                                            over the precise wording and interpreta-
                                                                                           made can prevent its use in court.

                                                                                           5   Record the speaker’s demeanor. A
                                                                                               speaker’s emotional state8 at the time

1   Document all adults and children
    present. Include name, birth date,
and address. Document all statements
                                            tion of a past statement. Paraphrased
                                            statements may be ruled inadmissible as
                                            content is arguably misconstrued. To
                                                                                           the statement was made is vitally impor-
                                                                                           tant. Record specific physical expres-
                                                                                           sions, behaviors, body postures, gestures,
and the demeanor of all persons present.    determine admissibility, courts examine        or speech patterns. Do not synopsize,
EMTs are privy to statements made by        statements for details of appearance,          e.g., “She looked scared when …” but
offenders, supportive and non-support-      smell, taste, or texture, e.g., “White         rather describe, e.g., “She was crying,
ive caretakers, and victims. If not imme-   sticky stuff came out of his peepee”; age-     shaking, and kneeling in the corner
diately memorialized, these statements      appropriate language, e.g., “His hot dog       when she stated …” If the speaker
may be forgotten, misconstrued, or          touched my butt”; and verb tense, e.g.,        appeared intimidated by another person
denied. Myriad hearsay1 exceptions2         “My arm hurts,” versus “My arm hurt.”          present, note this too, e.g., “She looked
allow prosecutors to present various        Often, the child’s original statement          at her frowning mother before shrugging
qualifying statements in court.             contains emotion or unique word choic-         her shoulders.”
Statements that are emotionally moti-
vated, based on personal observations,
made to medical personnel, or that rep-
                                            es that are more persuasive to a jury than
                                            formal testimony. As one former prose-
                                            cutor has noted, “Expressions such as
                                                                                           6    Explain your job. Statements made
                                                                                                to medical professionals are typically
                                                                                           admissible in court if the speaker under-
resent current thinking or feelings are     these can be powerful evidence in con-         stands the statement will be considered
typically admissible. As curators of        vincing a jury the child actually experi-      when medical assistance9 is dispensed.
“scene” statements, EMTs must be            enced abuse.”4 In cases of physical abuse      Very young children may not under-
familiar with the general requirements      or neglect, the responsible person may         stand the role of a doctor or paramedic.
that allow certain statements to be used    initially provide a history of trivial acci-   A quick explanation will dispel confu-
in court.                                   dent or injury before realizing the gravi-     sion e.g., “I’m a paramedic. My job is to

2   Identify and document who makes
    the statements. Record all state-
ments in the official report:
                                            ty of harm inflicted.5 At the hospital,
                                            when the severity of injury becomes
                                            known, the once trivial history will
                                                                                           check your body to make sure you are
                                                                                           not hurt. Your job is to tell me if any-
                                                                                           thing hurts.”
“Documentation reinforces memory,
provides a vehicle for conveying infor-
mation to others, and increases the accu-
                                            amplify when told to the doctor or hos-
                                            pital social worker. Precisely document-
                                            ed statements are invaluable in court.
                                                                                           7    Ask probing follow-up questions.
                                                                                                Get the details! Ascertain the alleged
                                                                                           timing and mechanism of injury and the
racy of testimony.”3 The EMT will
respond to many emergency calls
between the pertinent event and the
                                            4   Document the time when the state-
                                                ment was made. EMTs routinely
                                            document the time an injury occurred.
                                                                                           onset of and specific symptoms. Ask
                                                                                           basic assessment questions of who, what,
                                                                                           where, when, and how, when dealing
court date. Unless documented, details      Note and document the specific time            with a suspicious call. When provided a
will diminish and accuracy will suffer.     statements are made. Be specific: Do not       questionable history of events, inquire
Testimony based solely on memory may        guesstimate, e.g., “Three minutes after        further, e.g., “How many stairs did she
be ruled inadmissible due to unreliabili-   arrival, mother stated …” and do not           fall down?” “Did she roll, slide, or ‘fly’
ty, while the same testimony may be         generalize, e.g., “While at the home the       down the stairs?” “Who was present?”
ruled admissible if it is supported by a    child reported …” To be admissible in          “What happened immediately before
report written at or near the time of the   court, statements made simultaneously6         she was injured?” “When and what did
event. Always use clear, objective lan-     with or while experiencing the stress7 of                           Continued on page 24

                                                                                                                         PAGE 23
           THE TEXAS PROSECUTOR




Continued from page 23                         nism of injury is vital to verifying a sus-   coining. If abuse is suspected, note and
she last eat?” Establish if the speaker wit-   pect history. For example, when               document the following:
nessed the event or is repeating what          responding to a SIDS call for a 16-           Signs of physical abuse: unexplained
someone else told him or her. Structure        month-old female, inquire where the           broken bones, bruises, black eyes, cuts,
questions to ensure accurate informa-          child was sleeping when she died. Look        burns, and welts; pattern injuries and
tion, e.g., “What did you see happen?”         for blood on surrounding pillows, tow-        bite marks; anti-social behavior; fear of
not “What happened?”                           els, or other items possibly used for suf-    adults or of being at home; signs of apa-

8   Record the question. The content of
    an answer can often be understood
only by knowing the question. Record
                                               focation. Collect the item she was sleep-
                                               ing on (bedding, couch cushion, or
                                                                                             thy, depression, hostility, or stress; eating
                                                                                             disorders; lack of concentration or
                                               blanket). Other important items to col-       reports of injury received from an adult
verbatim questions in the report.              lect include all identified mechanisms of     caretaker.
Document if statements are unsolicited         injury, child’s clothing, diaper worn         Signs of sexual abuse: difficulty walking
or spontaneous, i.e. “He spontaneously         upon arrival, and any bloody items. If        or sitting, over-compliance, excessive
stated, ‘Those are old bruises.’”              any dangerous weapons or illegal sub-         aggressiveness, nightmares, bed-wetting,

9   List all persons present who heard
    the statement. To assist law enforce-
ment during an investigation, include
                                               stances are visible, immediately call for
                                               police assistance.
                                                                                             a drastic change in appetite, inappropri-
                                                                                             ate interest or knowledge of sexual acts,

names of other EMTs, law enforcement
officers, or private citizens who heard
                                               12      Identify and record the child’s
                                                       age and developmental stage.
                                               Commanding a comprehensive under-
                                                                                             or fear of a particular person.
                                                                                             Signs of neglect: unsuitable clothing for
                                                                                             the weather; unbathed/dirty; severe
the statements.                                standing of the stages of child develop-      body odor; back of head flat; severe dia-

10      Document the environment.
        Culpable caretakers commonly
clean up, modify, and destroy evidence
                                               ment allows an EMT to determine the
                                               accuracy of the history provided.
                                                                                             per rash; hungry; underweight; lack of
                                                                                             food, formula or toys; parent or child
                                               Initially inquire about the mechanism of      use of drugs or alcohol; poor school
before police arrive. EMTs may arrive          injury, then establish the child’s develop-   attendance, apparent lack of supervi-
prior to or during the destruction. To         mental level. Weigh these statements to       sion; unsuitable living conditions,
ensure an accurate scene description,          determine if the child is capable of per-     including dangerous surroundings ( e.g.,
EMTs should focus all of their senses on       forming the act alleged by the caretaker,     presence of drugs, alcohol, or exposed
their surroundings. Important items to         e.g., the 1-month-old rolled off the          electrical wires).
note include pieces and placement of
furniture and condition of the home.
Remember, statements made by culpa-
                                               couch, or the child with severe cerebral
                                               palsy climbed up and jumped off a
                                               dresser. Consider and document the rea-
                                                                                             14      Assess children present at unre-
                                                                                                     lated calls. At every concerning
                                                                                             scene10 where a child is present, and
ble caretakers often contradict evidence       sonableness of the history against devel-     especially at domestic violence scenes, an
found or the mechanism of injury               opmental abilities.                           assessment for child abuse and neglect
described. For example, an EMTs report
from a scene without law enforcement
present may read, “‘Baby-sitter states
                                               13      Know the signs of abuse and
                                                       neglect. EMT training customar-
                                               ily focuses only on severe physical abuse.
                                                                                             should be completed. Unless immediate
                                                                                             care is necessary, the assessment need
                                                                                             not disrupt patient care and documenta-
child rolled off couch, hit his head on        Consequently, experienced EMTs may            tion can be completed later.
coffee table leg, unconscious, called 911
immediately.’ No coffee table seen in
home. Sputum-soaked paper towels on
                                               have difficulty recognizing and assessing
                                               less extreme cases of child abuse, neglect,
                                               or children at risk. To avoid misdiag-
                                                                                             15      Evaluate children and adults
                                                                                                     with disabilities. Abuse and neg-
                                                                                             lect of this population is dramatically
kitchen floor, blood on kitchen counter.       noses, EMTs must also be aware of cer-        high and rarely reported. Any opportu-
Child nonresponsive, felt cold.”               tain cultural issues and practices includ-    nity for medical assessment should be

11      Collect     significant      items.
        Preserving the potential mecha-
                                               ing Mongolian Spots, cupping, and             exploited as medical needs may go


  PAGE 24
                                                                                                                        JANUARY/FEBRUARY 2005

                                                                                                                      Continued from page 15



                                                           Emotional, or Physical Condition, FRE 803(3),
unchecked. Verify and document diag-
nosed disability, mental and physical
                                                           Statements for Purposes of Medical Diagnosis or
                                                           Treatment, FRE 803(4).
                                                                                                                       Newsworthy
functioning levels, routine medical con-
cerns, and signs of abuse or neglect as                    3 Prehospital Providers on Child Abuse, Neglect
                                                           Recognition and Mandatory Reporting Curriculum,            Three new TDCAA
referenced above.                                          Pediatric Emergency Care Vol. 18, No. 3 June 2002.


16      Adhere to mandatory reporting
        requirements and procedures.                       4 Victor I. Vieth, When Cameras Roll: The Danger of
                                                           Videotaping Child Abuse Victims Before the Legal
                                                                                                                      publications soon
An EMTs status as a mandated reporter                      System is Competent to Assess Children’s Statements,       available
is regulated by state law.11 Regardless,                   7(4) Journal of Child Sexual Abuse 113, 120 (1999).
EMTs must understand the local child                                                                                  Three new TDCAA books are soon to
                                                           5 One study has noted that 95 percent of initial histo-    arrive at our offices. Two of them will be
protection system and know how to                          ries supplied by caretakers of the cause of the abuse
activate it on the child’s behalf. If abuse                and the child’s injuries were subsequently found to be     shipped free to prosecutors’ offices cour-
                                                           false. See Smith, Wilber L., Abusive Head Injury, 7        tesy of our CCA grant.
                                                           APSAC Advisor 16 (1994).
is suspected, contact child protective
services (or adult protective services,                                                                                     State’s Appellate Manual (third edi-
where appropriate).                                        6 Fed. R. Evid. 803(1).                                    tion) by Gail McConnell and Alan
                                                                                                                      Curry will be sent to appellate sections
17      Interact with the multidiscipli-
        nary team (MDT). Combating
child abuse necessitates sharing informa-
                                                           7 Fed. R. Evid 803(2).

                                                           8 Fed. R. Evid. 803(3).
                                                                                                                      in December, while the Victim
                                                                                                                      Assistance Manual by Diane Burch
tion and resources. Many state laws                                                                                   Beckham will soon arrive in all prosecu-
                                                           9 Fed. R. Evid. 803(4).                                    tors’ offices. It’s a brand-new publica-
establish who is authorized to be a
                                                                                                                      tion that contains lots of helpful infor-
MDT member and allow members to                            10 Includes narcotics or alcohol use, drug labs, gang or
share confidential records and informa-                    family violence, weapons use, etc.                         mation and forms for victim-witness
tion. If authorized, EMTs should fully                                                                                coordinators.
                                                           11     See     www.nccanch.acf.hhs.gov        (National          The updated Predicate Questions
participate in the MDT by attending                        Clearinghouse on Child Abuse and Neglect
meetings and discussing cases with team                    Information) for specific state statute information.       Manual by John Bradley and Ken
members.                                                                                                              Anderson will soon be complete and
                                                                                                                      available for sale.
                                                                                                                            To order these books or any others,
Conclusion                                                                                                            visit www.tdcaa.com/publications, or
Child abuse and neglect cases are
                                                                                                                      fill out the order form on page 2 of this
wrought with difficult issues. Holding
                                                                                                                      newsletter and fax it to 512/478-4112.
abusers responsible for their acts requires
meticulous documentation, even-hand-
ed investigations and teamwork. EMTs
                                                                                                                       Basic fingerprint course
are uniquely positioned to observe and                                                                                 offered at February’s
document vital information when                                                                                        Investigators School
assessing the possibility of child abuse.                                                                              Attendees at our 2005 Investigators School
                                                                                                                       can sign up for a basic fingerprint course, an
                                                                                                                       intensive, 24-hour session teaching the
                                                                                                                       comparison of inked fingerprints for the
Endnotes
 1 Hearsay is a statement, other than one made by the
declarant while testifying at the current court proceed-
                                                                                                                       purpose of determining identity. No prior
ing, offered in evidence to prove the truth of the mat-                                                                fingerprint experience is necessary, and
ter asserted.” Fed. R. Evid 801(c).                                                                                    enrollment in the class is limited to 25 peo-
                                                                                                                       ple who must attend all sessions. See the
2 Present Sense Impression, FRE803(1), Excited                                                                         registration form on page 26, or download
Utterance, FRE 803(2), Then Existing Mental,                                                                           the brochure at www.tdcaa.com/seminars.


                                                                                                                                                        PAGE 25
      TDCAA Registration Form                                                                           Code JF PR

                      Investigators School at the Omni San Antonio
                                  February 14–18, 2005

Name                                                                 Name preferred on badge

Office                                                               Title

Office address                                               City                                   ZIP

Phone                                                                DOB

SS#                                                          E-mail address

Please check if you plan to attend:                                 Please check if you want to attend:
t   Cultural diversity      t    Special investigative topics            t    Basic Fingerprint Comparison
                                                                    Note: Enrollment in the fingerprint class is
School                                                              limited to 25 participants who must attend
                                                                    the entire 24-hour program.
t   First-Time Supervisors Course



Registration: Advance registration is recommended. Eligible prosecutors and prosecutor office employees are
entitled to attend all training and receive applicable expense reimbursement for a $125 registration fee, which
will be deposited into the Court of Criminal Appeals’ Texas Prosecutor Assistance Project (TPAP) account (our
grant) and used to fund other TPAP training events.The reimbursement policy is below.
Association fee: A TDCAA fee of $125 is each participant’s share of costs over and above what the grant
allows (for example, excess costs of on-site meals and association overhead). In addition, this fee enables
TDCAA to lock in discounted hotel rates for participants and entitles them to attend all association functions,
including Monday night’s opening reception and lunch on Tuesday and Thursday. Conference attendees who pay
only the $125 registration fee can attend all training but are not entitled to association functions. All meals not
provided by TDCAA and other expenses are your own.
Reimbursement: TDCAA will reimburse only eligible prosecutors and prosecutor office employees up to
$40 per night for four nights’ stay at a hotel and up to $30 a day for meals not provided at the conference.
TDCAA will not reimburse for travel, registration fees, hotel tax, parking, taxi costs, or other extraordinary
expenses. Associate members are not eligible for reimbursement.

REGISTRATION FEE (please check
For prosecutors and prosecutor                            For non-prosecutors and non-
office personnel:                                         prosecutor office personnel:
t $125 registration fee + $125
   association fee ($250 total)                           t $350
t $125 for training only
 Fax to 512/478-4112 or mail to 1210 Nueces St., Austin, TX 78701.
               Or fill it out online at www.tdcaa.com.
 PAGE 26
                                                                                               JANUARY/FEBRUARY 2005




                                        CRIMINAL LAW
                                                                                            toward those expenses by family mem-
                                                                                            bers. The Texas Center for Actual
                                                                                            Innocence, which is the tax-exempt cor-
                                                                                            poration that runs the Actual Innocence
                                      By Robert O. Dawson                                   Clinic, provides in its by-laws that no
                                     Bryant Smith Chair in Law, University of
                                    Texas School of Law, and co-director, UT Law            director or officer of the corporation
                                  School Actual Innocence Clinic                            may receive any compensation of any
                                                                                            kind for work done on actual innocence
                                                                                            cases.

Claims of actual innocence                                                                      Here is how we operate and, per-
                                                                                            haps, how we differ from some other
 Finding the needle in the haystack                                                         projects.

                                               ity. Innocence clinics in law schools are

T
         here about 150,000 inmates
                                               also excellent tools for teaching law stu-
                                                                                            Screening actual innocence
         incarcerated in the Texas
         Department       of     Criminal      dents how to analyze facts and make          claims
Justice. If the Texas criminal justice sys-    judgments about the claims’ credibility.     When we receive a letter from an
tem is 99.9 percent accurate in not send-           Barry Macha’s article (see page 30)     inmate (at a rate of five to 15 per day),
ing actually innocent persons to prison,       points out many of the hazards in the        it is logged into our docket system and
that means there are about 150 inmates         process of making and litigating post-       assigned to a student in the clinic. The
currently serving time in TDCJ for             conviction claims of actual innocence.       student first determines whether the
offenses they did not commit. Whether          The factual issues raised are often based    inmate is claiming actual innocence. If
that number is accurate or not is any-         on old evidence, involve difficult credi-    not, the inmate is informed we cannot
body’s guess, but the process of identify-     bility determinations, and result in less    help him or her and is directed to any
ing them truly is looking for a needle in      than 100-percent certainty of outcome.       available legal assistance that may
a very big haystack.                           Nevertheless, we all know that valid         address the problem or question pre-
     In September 2003, the Texas              actual innocence claims exist and that       sented. We don’t help inmates on their
Center for Actual Innocence started the        everybody in the criminal justice system     post-conviction writs raising non-inno-
University of Texas Law School’s Actual        has an equal interest in exonerating a       cence claims.
Innocence Clinic as the second inno-           person convicted of an offense for which           The student does the screening
cence project in Texas. (The first is at the   he or she is actually innocent.              under the supervision of the three co-
University of Houston.) There are over              What follow are some of the ideas       directors of the clinic. Every letter sent
40 innocence projects in the United            that co-directors Bill Allison, Dave         and step taken is first approved by a
States, and most are associated with or        Sheppard, and I have developed while         director.
are parts of law schools. Their purpose is     teaching the actual innocence clinic.              If an innocence claim is made,
to receive claims of actual innocence          These ideas and views do not necessarily     often it is vague or not burdened by
from inmates, to screen and evaluate           represent those of any other innocence       detail. We write back asking for details,
those claims, to investigate those that        project in Texas or the United States.       explaining that actual innocence means
survive screening, and to seek exonera-             Like most innocence projects, we do     that the inmate had no connection to
tion and release from prison of those          not charge legal fees. We pay our own        the offense (mistaken identity) or that
inmates whose actual innocence can be          investigative expenses, although we          there never was an offense (false accusa-
proven to a court or a clemency author-        reserve the right to ask for contributions   tion). Claims based on accident, self-
                                                                                                                Continued on page 28

                                                                                                                          PAGE 27
          THE TEXAS PROSECUTOR




Continued from page 27
                                          the initial inmate contact) is described in and sometimes confirms that the system
defense, defense of others, and legal detail. The student then presents the got it right.
insanity are not innocence claims as we memorandum to a clinic meeting, where              DNA testing in criminal cases,
have defined them. We require substan- it is analyzed by faculty and students. unlike DNA testing to determine pater-
tial daylight between the inmate and the The two questions asked are: 1) is there nity, is almost never the entire picture of
offense. Out of respect for the values is a real claim of actual innocence, and guilt or innocence. The results of a com-
underlying conviction finality, the law 2) can we prove it?                           petently-conducted DNA test are
requires that proof of actual innocence        Often, as a result of the memo pres- impossible to ignore, but their signifi-
must be made by new evidence, not by entation process, students and faculty cance is almost always subject to argu-
rehashing evidence previously consid- make suggestions for further investiga- ment when combined with the other
ered.                                     tion to the student; sometimes, the deci- evidence in the case. That is where tradi-
      We do not take cases from death sion is that the case is hopeless and will tional lawyer factual analysis becomes
row. We automatically refer all such let- be closed by a letter to the inmate telling critical and one must always remember
ters to the Capital Punishment Clinic at him or her we are unable to help.            that we deal only with probabilities, not
the U.T. Law School, which has the             After the memo presentation, the certainties.
expertise to navigate through the highly- investigation involves locating relevant         Innocence cases as a group are here
technical body of death penalty law.      court documents, physical evidence, and to stay because of DNA testing.

                            The process of exoneration through post- is possible in only a
      If in his or her let-                                                                            However, DNA testing
ter, the inmate has made

cence claim, we then conviction proof of innocence should be
a detailed actual inno-                                                                                small percentage of

conduct an Internet thought of not as an external challenge
                                                                                                       criminal cases—prima-

search of the case. We to the criminal justice system but rather
                                                                                                       rily in murder and sex-

determine whether any as a necessary and integral part of it.
                                                                                                       ual assault cases. Many
                                                                                                       innocence claims do
published or unpub-                                                                                    not depend on DNA
lished opinion was                        witnesses. We continually assess whether testing, but on re-examination of scien-
issued in an appeal of the case, and we our innocence hypothesis stands the test tific evidence, recantation by witnesses,
determine whether there were any news- of factual investigation. If at any point it or other new evidence tending to show
paper stories about the case when it was does not, we close the case.                 actual innocence.
in the local courts. Any documents we
find become part of our screening pack- DNA and innocence claims                      Probability vs. certainty
age.                                      The heart and soul of actual innocence We all would like 100-percent certainty
      If the actual innocence claim sur- claims is DNA testing. A forensic devel- in the criminal justice system, but we all
vives this screening process, we send the opment of the last 15 years, DNA test- know that is not possible. Probably every
inmate a 15-page questionnaire asking ing has opened wide, new windows on prosecutor in the history of the state of
about all aspects of the case, including truth in the criminal justice system and Texas has reminded the jury on voir dire
the current location of physical evidence elsewhere. The most frequent use of and in closing argument that proof
and legal documents.                      DNA testing is made by prosecutors to beyond a reasonable doubt does not
      When the inmate responds to the provide persuasive evidence of the require proof beyond all doubt, proof
questionnaire, the student screening the accused’s guilt. In post-conviction test- beyond a shadow of a doubt, or proof to
case writes a comprehensive memoran- ing, DNA sometimes shows that the a moral certainty. In other words, jurors
dum about the case, in which all the person convicted was actually innocent are told that they can have a doubt of
information gleaned (beginning with

  PAGE 28
                                                                                               JANUARY/FEBRUARY 2005




guilt and still convict, so long as the       to believe in the factual innocence of         solid or not. If by that process, the pros-
doubt is not too large.                       their clients, nor are they permitted not      ecutor concludes that the inmate is very
     The same phenomenon occurs at            to present a defense just because they do      probably actually innocent of the offense
the exoneration end of the process.           not “believe in it.” While they cannot         for which he is serving time, then the
There is no such thing as absolute cer-       suborn perjury, defense attorneys must         prosecutor should join the defense attor-
tainty. Even with a favorable DNA             present all plausible defenses within          ney in further investigation with a view
result, one can almost always dream up a      sound trial strategy. Their burden is only     to obtaining an exoneration and release
version of the facts that makes that result   to raise a reasonable doubt.                   if that proves factually appropriate. At
somewhat consistent with guilt. Texas              When a defense attorney is present-       this stage, it should be a team effort.
law requires that proof of guilt must be      ing an actual innocence claim, however,        This is no more a time for prosecutorial
beyond a reasonable doubt to convict          I believe he is required ethically to          game-playing than it is for defense
and that proof of actual innocence must       believe in his client’s actual innocence.      game-playing.
be by clear and convincing evidence to        In that circumstance, the burden of per-            If at the end of the day the inmate is
exonerate. Neither standard requires          suasion rests squarely on the defense          exonerated and released, there will be
absolute certainty because absolute cer-      lawyer’s shoulders. A claim of actual          credit enough to go around. The public
tainty is beyond the power of mere mor-       innocence should and does carry such           will see that former adversaries are capa-
tals to achieve.                              morally persuasive weight with prosecu-        ble of working together to secure the
     That means, unfortunately, at the        tors and judges that it cannot ethically       correct result, and the public’s confi-
end of the day that some people will          be made by a defense attorney who does         dence in the integrity of the criminal
remain convinced that a convicted per-        not subjectively and substantively             justice system will be strengthened.
son is actually innocent. It also means       believe in it.                                      If the prosecutor remains unper-
that some people will remain convinced                                                       suaded by the evidence of actual inno-
that an exonerated inmate is actually         How exoneration cases (ide-                    cence, the case can still be litigated to
guilty. We cannot change that; we can                                                        conclusion in an adversarial context—
                                              ally) should be handled
only seek to minimize the numbers of                                                         one hopes in a civilized manner.
                                              The reaction of a prosecutor to a post-
such persons.
                                              conviction claim of actual innocence
                                              should initially be one of skepticism.         Conclusions
Role alteration                               The prosecutor who prosecuted the case         Each time a convicted person is exoner-
in exoneration cases                          believed in it and thought the result was      ated by post-conviction proof of actual
Texas prosecutors are told by the legisla-    correct. Now, along comes a defense            innocence, two consequences ensue:
ture that their primary duty is not to        attorney to tell him he has convicted an       First, the event shows that the criminal
convict but to see that justice is done. I    innocent person. And worse yet, the            justice system, while far from broken, is
have always understood that to mean,          defense attorney is now asking the pros-       fallible because it is run by humans.
among other things, that a prosecutor         ecutor to assist him in proving that a         Second, it shows that humans within the
must subjectively and substantively           miscarriage of justice occurred.               system, operating in good faith, can
believe in the guilt of the person he or           Nobody wants to see a person in           jointly correct some of these mistakes.
she is prosecuting to ethically pursue a      prison for an offense he did not commit.       The process of exoneration through
charge. If that is not what the prosecutor    That is everybody’s worst nightmare. At        post-conviction proof of innocence
believes, then he or she should move for      this stage, the prosecutor’s job is to chal-   should be thought of not as an external
dismissal or give the case to a prosecutor    lenge the evidence of actual innocence         challenge to the criminal justice system
who views it differently.                     presented by the defense attorney to           but rather as a necessary and integral
     Defense attorneys are not required       determine in her own mind whether it is        part of it.


                                                                                                                           PAGE 29
                                             CRIMINAL LAW
                                                                                                  restaurant and threatened the female
                                                                                                  manager with a knife, beat, raped, and
                                                                                                  robbed her. He then tied her hands
                                                                                                  behind her back and threatened to kill
                                                                                                  her if she moved. Ten days later, Barnes
                                        By Barry L. Macha
                                        Wichita County District Attorney                          was arrested just minutes after using a
                                                                                                  toy handgun to threaten and rob a
                                                                                                  female employee at a Domino’s Pizza
                                                                                                  restaurant. He was sent back to prison.
                                                                                                       After his second release from
Barnes v. State: A defendant’s                                                                    prison, Barnes moved in with his moth-
                                                                                                  er. Four days later the lights went out in

abuse of a post-conviction                                                                        the 68-year-old neighbor’s home next
                                                                                                  door, her front door was kicked in, and
                                                                                                  she was beaten and raped. Her attacker
actual innocence claim                                                                            said if she called the police, she would
                                                                                                  be killed. The terrified victim moved
A prosecutor’s concerns about defendants crying wolf                                              out of her home, and two weeks later it
                                                  follows this note. The moral of the story is    was set on fire. Barnes’ fingerprint was


E
           ditorial note: Recently the Court
                                                  simple: There is a right way to go about        found on the glass face of the home’s
           of Criminal Appeals hosted a
                                                  actual innocence investigations and             outdoor electric meter, and DNA evi-
           conference on the creation and
                                                  claims, and the Barnes case is an example       dence linked him to the rape. He had
activities of two innocence projects at the
                                                  of how not to do it.                            also told a coworker that he had set the
University of Houston and the University
                                                       Only time will tell if the Texas inno-     fire to destroy fingerprints he had left
of Texas. An article by Professor Robert
                                                  cence projects can develop a constructive       during a burglary of the residence the
Dawson, co-director of the Center for
                                                  working relationship with prosecutors.          morning of the fire.
Actual Innocence at UT, appears in this
                                                  Will the projects garner the type of credi-          Three days after his next door
edition of The Prosecutor (see page 27).
                                                  bility needed to operate effectively in coop-   neighbor’s rape, Barnes attempted to
     It’s fair to say that after the activities
                                                  eration with prosecutor offices? You’ll need    choke and sexually assault a 26-year-old
of the defunct Texas Resource Center, over-
                                                  to decide that. —Rob Kepple                     female acquaintance who was nine
ly aggressive defense counsel, and anti-
                                                                                                  months pregnant. He threatened to kill
death penalty advocates over the last few
                                                                                                  her if she did not stop screaming, but

                                                  O
years, prosecutors are skeptical of innocence              dell Barnes, Jr. was 14 years
                                                           old when he shot his father            she managed to escape. Less than two
projects as a whole. Nevertheless, we recog-
                                                           with a .32-caliber handgun.            weeks later—the same day that Barnes’
nize that a properly run innocence clinic
                                                  When he was 18, he burglarized, beat,           next door neighbor’s home had been set
can be valuable to enhance the public’s jus-
                                                  raped, and robbed a 43-year-old woman           aflame—Barnes’ neighbor across the
tified perception that the Texas criminal
                                                  in her home. He went to prison when he          street, 49-year-old Harriette Tetreault,
justice system is sound.
                                                  was 19 after using a handgun to threat-         was found murdered in her home. The
     So Barry Macha, district attorney in
                                                  en and rob female employees at                  back door had been kicked in and
Wichita County, and several prosecutors
                                                  McDonald’s and Golden Fried Chicken             Tetreault, nude and lying face-down on
from jurisdictions throughout Texas
                                                  restaurants.                                    her bed with her legs spread apart, had
attended the conference. Barry, asked to
                                                       Within 30 days of his release from         been beaten about her head and face,
speak on behalf of prosecutors, told the
                                                  prison, Barnes broke into an El Chico’s         and her throat had been cut (3 incised
cautionary tale of Odell Barnes, Jr., which
                                                                                                  wounds). She had bled to death.

  PAGE 30
                                                                                             JANUARY/FEBRUARY 2005




     Barnes’ mother decided it was time      ple of hours of Bass’ murder. Barnes later   given the advances in DNA testing since
to move. Three days after Tetreault’s        gave the gun to a coworker, Johnny Ray       the 1991 trial, I requested new DNA
murder they moved to a residence less        Humphrey, who sold it (missing one           testing (PCR), which produced the fol-
than half a mile from her good friend,       bullet) to Williams. When Williams           lowing results:
Helen Bass, with whom she carpooled to       learned of Bass’ murder, he returned the     • The blood on Barnes’ coveralls
and from work. The very night they           gun to Humphrey’s sister, Deborah Ann,       matched victim Helen Bass’ blood with
moved in, Odell burglarized, beat,           who turned it over to the police.            the frequency of occurrence of this
raped, robbed, and murdered 44-year-              From pre-trial all the way through      genetic profile being 1 in 2.5 billion.
old Helen Bass in her home.                  post-conviction habeas and executive         • The male portion of a vaginal swab
     Like Harriette Tetreault’s murder, a    clemency proceedings, I provided an          collected during the autopsy of victim
back door to Helen Bass’ residence had       open file to all of Barnes’ attorneys to     Helen Bass matched Barnes’ blood with
been kicked in and Bass’ nude body was       discover and inspect the State’s evidence.   the frequency of occurrence of the
found positioned almost identical to         I later learned that Barnes’ post-convic-    genetic profile (generated by the male
Tetreault’s. Bass died from a .32-caliber    tion federal habeas attorneys filed a        portion of the swab) being 1 in 877 mil-
gunshot wound to her head. In addition,      sealed ex parte motion to perform DNA        lion.
she had been stabbed in the neck and         testing (PCR) because pre-trial DNA          • A semen- and blood-stained washcloth
severely beaten with a rifle and the base    testing (RFLP) in 1991 had been unable       recovered from the floor in the bedroom
of a bloody lamp. A jury found Barnes        to identify Barnes as the person who         where victim Helen Bass was murdered
guilty of the capital murder of Bass and,    raped victim Helen Bass. The motion          matched the profile of Barnes’ blood
based on their answers to the special        was denied by the federal district judge.    with the frequency of occurrence of this
issues, he was assessed the death penalty.   If Barnes’ attorneys would have asked        genetic profile being 1 in 54 billion.
Barnes was a nine-time convicted             me, I would have agreed to the new                Ten days later, Barnes’ federal
felon—all for violent offenses.              DNA testing.                                 habeas attorneys filed a motion alleging
     The evidence at trial establishing           In the meantime, one of Barnes’ fed-    that Barnes’ execution would violate his
Barnes’ guilt included:                      eral habeas attorneys had contacted an       constitutional rights because he is actu-
• A witness, Robert Brooks, observed         individual in Wichita Falls to help locate   ally innocent of capital murder. To rebut
Barnes wearing dark coveralls on victim      potential witnesses in Barnes’ case. The     the highly incriminating new DNA evi-
Helen Bass’ property approximately 50        same attorney also contacted and dis-        dence, they claimed for the first time
minutes to an hour before Bass returned      cussed the case with a sitting judge on      ever that Barnes was “intimately
home from work.                              the Court of Criminal Appeals. That          involved with” and “previously had con-
• Barnes’ fingerprint was found on the       judge then telephoned and left a message     sensual sexual relations” with victim
bloody lamp used to beat Bass.               with the individual in Wichita Falls         Helen Bass. That allegation had never
• A shoeprint pattern (apparently in         encouraging him to give the attorney “all    been made or even remotely inferred by
blood) found on the back of Bass’ blood-     the help you can give him” because he is     Barnes or his previous attorneys at trial,
stained checkbook (recovered from the        a “very close friend” who used to be his     in pre-trial hearings, at parole revocation
floor in the bedroom where she died)         “research attorney” and who was “con-        proceedings, on direct appeal, at initial
matched the pattern on Barnes’ shoes.        vinced that the gentleman he represents      post-conviction state habeas proceed-
• Blood on Barnes’ coveralls was the         is innocent and shouldn’t be in jail.” It    ings, or in numerous newspaper and tel-
same type as and had genetic markers         should be noted that the judge was           evision interviews. No, the allegation
consistent with Bass (Barnes was type A;     defeated later that November in the gen-     was made only after new DNA testing
Bass type O).                                eral election.                               revealed that the semen present at the
• A witness, Patrick Williams, observed           Anticipating that Barnes’ federal       crime scene could belong to no one on
Barnes in possession of victim Helen         habeas attorneys may attempt a last-         the face of the earth but Odell Barnes, Jr.
Bass’ .32-caliber handgun within a cou-      minute claim of actual innocence, and                             Continued on page 32

                                                                                                                         PAGE 31
Continued from page 31
                                            from the serology lab at SWIFS and tions that were made in his case—partic-
What an absolute outrage to Helen Bass placed some of it on Barnes’ coveralls. ularly with respect to victim Helen Bass.
and her family! It had been almost 10 Sounds like a great plot for a John I expressed these concerns when I spoke
years since Helen Bass had been brutally Grisham book, but that is all it is, pure at the Innocence Conference held at the
beaten, raped, stabbed, and shot to fiction. Dr. Ballard and his junk science University of Texas School of Law on
death, and now she and her family were have been discredited and rejected in November 5, 2004.
re-victimized. Barnes was raping Helen court cases from New Jersey, to Florida,          I was heartened, however, by the
Bass and her family of their good name to Missouri, and most recently in feedback my story garnered. Professor
by falsely claiming that he had a consen- California. He was found not credible or Bob Dawson, the co-director of the UT

with her. The federal dis- It had been almost 10 years since Helen Bass had
sual sexual relationship

trict judge denied Barnes’ been brutally beaten, raped, stabbed, and shot to
motion.
                                death, and now she and her family were re                               -
attorneys made another victimized. Odell Barnes was raping Helen Bass and
     Barnes’ federal habeas

outrageous allegation as her family of their good name by falsely claiming that
part of Barnes’ evolving he had a consensual sexual relationship with her.
actual innocence claim.
They alleged that law enforcement offi- reliable in those states or here in Texas in Innocence Project, clearly recognizes
cials planted Helen Bass’ blood on the Barnes case. Perhaps a New Jersey that our legal system is not broken and
Barnes’ coveralls to connect him to the judge said it best: “Doctor Ballard is like that the vast, vast majority of inmates at
crime. That allegation was based on test- the protagonist ‘Paladin’ in the famous TDCJ are guilty and deserve their jury-
ing performed by Dr. Kevin Ballard.         television program ‘Have Gun Will or judge-imposed punishments. Only a
     An autopsy had been performed on Travel.’” (For younger readers, in the tiny number of cases (he estimates about
Helen Bass’ body at the Southwestern early 1960s “Have Gun Will Travel” was 10 of the project’s 1,000 cases to date, or
Institute of Forensic Sciences (SWIFS) a very popular TV program. It featured 0.1 percent) might have legitimate
in Dallas. Among the items collected by the exploits of a soldier of fortune claims of actual innocence. “This is truly
the pathologist performing the autopsy dressed in black known simply as looking for a needle in the haystack,”
was a sample of Bass’ blood. The pathol- Paladin [played by actor Richard Boone] Dawson said at the conference, “but you
ogist delivered the autopsy blood sample who worked out of the Hotel Carlton in know the needles are there.” He also
that same day to the serology lab at San Francisco in the mid 1800s. Paladin knows that without prosecutors’ help
SWIFS. Police delivered Barnes’ cover- hired out his services as a gunfighter, and cooperation, even these “needles”
alls to SWIFS three days later.             detective, or whatever was needed. His will remain entangled in the hay, and
     According to Dr. Ballard, “A blood- business card featured the image of a that we’ll tolerate only meritorious
stain on coveralls attributed to the chess knight and the legend: “Have Gun claims of innocence. Crying wolf, as
defendant was obviously tainted, most Will Travel. Wire Paladin, San Odell Barnes’ attorneys did so many
likely with blood taken from the victim Francisco.”)                                 times, will leave innocence projects
at autopsy, preserved with citric acid in a      Even though it has been almost five alone and unprotected when their
yellow-topped blood collection tube.” years since Odell Barnes, Jr., was execut- lawyers have something legitimate to say.
Under Dr. Ballard’s hypothesis, someone ed, I am still very troubled by the false
took Helen Bass’ autopsy blood sample and outrageous actual innocence allega-

  PAGE 32
                                                                                           JANUARY/FEBRUARY 2005




                                       CIVIL LAW UPDATE                                 there is “no reasonable expectation
                                                                                        employment will continue indefinitely
                                                                                        or for a significant period.” USERRA
                                       Reprinted with permission from                   applies to virtually all American
                                       Texas Business Today
                                                                                        employers, regardless of size.
                                                                                             The pre-service employer must
                                                                                        reemploy service members returning
                                                                                        from a period of service in the uni-
                                                                                        formed services if they meet five general

The troops are coming                                                                   tests:
                                                                                        • Job: All civilian jobs are covered unless
                                                                                        an employer can prove the job was gen-
home—are you ready?                                                                     uinely temporary. USERRA applies to
                                                                                        all private sector employers, state gov-
Facts, questions, and answers for employers about the                                   ernments, and all branches of the feder-
                                                                                        al government. Unlike most discrimina-
Uniformed Services Employment and Reemployment                                          tion statutes, there is no small business
                                                                                        exception.
Rights Act (USERRA)                                                                     • Notice: Unless precluded by military
                                            cantly updated in 1996, 1998, and           necessity, advance notice must be pro-

B
        eginning in December 2003, the
        Pentagon began moving 130,000       2000. The act provides protection and       vided, either orally or in writing. While
        troops out of Iraq and another      rights of reinstatement to persons who      Congress did not provide a detailed def-
105,000 into that country in a series of    perform duty, voluntarily or involuntar-    inition of “timeliness of notification,”
complicated maneuvers—the largest           ily, in the “uniformed services,” which     employees who participate in the
troop rotation since World War II.          include the Army, Navy, Marine Corps,       National Guard or Reserve should pro-
Congressional intent in rotating these      Air Force, Coast Guard, their reserve       vide their employers with as much
servicepeople was to encourage noncar-      units, the Army or Air National Guard,      notice as possible.
eer uniformed service while balancing       the Commissioned Corps of the Public        • Duration: Generally, there is a five-
their private- and public-sector employ-    Health service, and any other category      year cumulative total limit on the
ers’ needs. With hundreds of Texas          designated by the president in time of      amount of time members can be absent
workers called to provide duty in the       war or emergency.                           from their civilian job with a single
uniformed services in the past few years,        Covered service includes active        employer. The five-year total does not
employers must know about those             duty, training for active duty, inactive    include inactive duty training (drills),
returning workers’ rights under this fed-   duty, training (such as drills), initial    annual training, involuntary recall to
eral law.                                   active duty training, funeral honors duty   active duty, or additional training
                                            performed by National Guard and             requirements determined and certified
                                            reserve members, and absences from          in writing by the service secretary and
What is USERRA?
                                            work to take exams to determine fitness     considered necessary for professional
The Uniformed Services Employment
                                            to perform such duty.                       development or for completion of skill
and Reemployment Rights Act (USER-
                                                 USERRA covers all employees            training or retraining.
RA) was enacted in 1994 and signifi-
                                            except those serving in postitions where                         Continued on page 34

                                                                                                                      PAGE 33
                                         Continued from page 33
Upcoming                                 • Character of Service: Veterans separat-
                                                                                      Reserve       (EGSR)       website
                                                                                      www.egsr.org/faqemployers/html.
                                                                                                                              at

                                         ed from the armed forces must have                The Federal Department of Labor’s
seminars                                 received an honorable or general dis-
                                         charge for coverage. Veterans who
                                                                                      Veterans’ Employment and Training
                                                                                      Services (VETS) enforces USERRA.
Investigators School and Basic           received dishonorable discharges, bad        However, the law also allows an employ-
Fingerprint Course, February             conduct discharges, under other than         ee to enforce her rights by filing a court
14–18, 2005, at the Omni San             honorable conduct discharges, and            action directly without first filing a
Antonio (9821 Colonnade Blvd.).          those who were dismissed or dropped          complaint with the DOL.
See the registration form on page 26     from the rolls are not covered by USER-           Issues involving USERRA may be
of this newsletter. Call 210/691-8888    RA protection.                               extremely complex. To obtain addition-
for reservations.                        • Prompt Return to Work: USERRA              al information about USERRA and all
Intoxication Manslaughter School,        sets forth varying time limits for return-   other VETS programs, visit the DOL’s
April 4–8, 2005, at the Inn of The       ing to work depending on the length of       website at www.dol.gov/dol/vets, call
Hills, 1001 Junction Hwy., in            the absence due to military service. For     the National Committee for Employer
Kerrville. Call 830/895-5000 for         specific information, visit the              Support of the Guard and Reserve, the
reservations.                            Department of Labor’s website at             Department of Defense, at 800/336-
Civil Law Seminar, May 11–13,            www.dol.gov/dol/vets.                        4590 to request Ombudsman Services,
2005, at the Omni San Antonio,                                                        or contact John McKinny, Director of
9821 Colonnade Blvd. Call                Reinstatement                                Veterans’ Employment and Training
210/691-888 for reservations.            If an employee is injured or incurs a dis-   Service for Texas at 512/463-2814 or
DNA & Expert Witness Seminar,            ability during military duty, the deadline   mckinnyjohn@dol.gov.
June 7–10, 2005, at the Hotel Galvez     for reinstatement may be extended for
in Galveston.                            up to two years while he is convalescing,
Prosecutor Trial Skills Course, July     and employers must make reasonable
10–15, 2005, at the Doubletree           accommodations for the impairment.
Hotel, 6505 IH-35 North in Austin;       For all other employees returning to
call 512/374-4837 for reservations.      work after a military leave of absence,
Advanced Appellate Advocacy              the position into which they are rein-
Course, August 8–10, 2005, at the        stated is determined by priority, based
Baylor University School of Law in       on the length of their military service.
Waco.                                         USERRA specifies that returning
Advanced Trial Advocacy Course,          employees must be “promptly reem-
August 15–19, 2005, at the Baylor        ployed.” What is “prompt” depends on
University School of Law in Waco.        individual circumstances. For example,
Legislative Updates in 20 cities, July   reinstatement after three years of active
through September.                       duty might require two weeks’ notice to
2005 Annual Criminal & Civil Law         an incumbent employee to vacate the
Update, September 21–23, 2005, in        position. For specifics regarding rein-
Corpus Christi.                          statement, visit the National Committee
                                         for Employer Support of the Guard and


 PAGE 34
                                                                                           JANUARY/FEBRUARY 2005




                                       CRIMINAL LAW
                                                                                         of red reflectors in the street.
                                                                                              Meanwhile, Brent started driving
                                                                                         back to Fort Worth on 121 in the Jones’
                                                                                         Chevy Tahoe. Around 2 a.m. Julie took
                                   By Mollee B. Westfall                                 the wheel because she thought Brent
                                  Assistant Criminal District Attorney in                seemed sleepy. Brent became alert and
                                 Tarrant County                                          started advising her to stay away from
                                                                                         certain cars. “That guy looks drunk, Ju;
                                                                                         stay back.”
                                                                                              As Julie approached downtown
Charging felony DWI as                                                                   around 2:30 a.m., she debated which
                                                                                         way to go home: Should she take 121
                                                                                         through downtown and stay on the
felony murder, part 1                                                                    back roads or exit and take I-35 south,
                                                                                         the shorter route? As she approached
It’s been done a few times in Texas to properly charge par-                              the I-35 split from 121, she steered for
                                                                                         downtown, reasoning that the back
ticularly egregious cases. Here’s how Tarrant County assis-                              roads would be safer. By that time
                                                                                         Strickland was speeding into oncoming
tant CDAs charged a habitual drunk driver with murder                                    traffic on 121 at about 70 miles per
when he killed another person on the road.                                               hour. Julie saw his headlights, and Brent
                                                                                         cried out “Ju, that car!” She swerved left
                                             high school and started smoking mari-

D
          uring the early morning hours                                                  into the 35 exit to try to avoid
          of December 21, 2003, Brent        juana regularly in his 20s. His alcohol
                                                                                         Strickland, but he crashed into the pas-
          and Julie Jones were driving       problem started registering with the
                                                                                         senger side where Brent was sitting.
home from their first night out since the    criminal justice system in 2001 with two
                                                                                              Brent died almost immediately, suf-
birth of their premature twins. The          arrests for public intoxication—one
                                                                                         fering a torn aorta and massive internal
babies had come three months early on        passed out in the driver’s seat of a car—
                                                                                         injuries. Passersby stopped to help, and
April 1st. Once the twins finally came       and one DWI arrest that was reduced
                                                                                         when Strickland was removed from the
home from the hospital, Brent and Julie      based on a .04 breath test. He was again
                                                                                         car he struggled to get up and leave, say-
devoted their time to caring for their son   arrested for DWI in December 2001
                                                                                         ing “I’ve got to get out of here.”
and daughter. On December 20th,              and placed on probation.
                                                                                         Strickland had a broken hip and Julie a
Julie’s mom came over to watch the chil-          During the late night of December
                                                                                         broken pelvis.
dren, and the couple had their first night   20, Strickland ended up at City Streets,
                                                                                              Strickland refused to give a blood
out together since becoming new par-         a downtown Fort Worth bar. Around
                                                                                         sample so a mandatory specimen was
ents. It would also be their last.           closing time he got separated from his
                                                                                         taken at 4 a.m. which showed his BAC
     While Brent and Julie visited friends   roommate due to an altercation in the
                                                                                         to be .20.
at a Christmas party, Jake Aaron             bar. As Strickland described it later, he
Strickland enjoyed a night of heavy          was “pissed off ” and “pretty f—ed up.”
drinking at two Fort Worth bars. Just        He headed toward State Highway 121          My involvement
                                             in his roommate’s Isuzu Rodeo. He           This case began for me as I sat at my
five months earlier, Strickland, age 24,
                                             turned the wrong way onto a major           breakfast table Sunday December 21,
had been revoked on his first DWI pro-
                                             downtown street that fed into 121, pass-    2003, at about 7 a.m. I was groggily eat-
bation because of a second DWI. He
                                             ing large Do Not Enter signs and scores                         Continued on page 36
had developed a drinking problem after
                                                                                                                      PAGE 35
          THE TEXAS PROSECUTOR




Continued from page 35
                                            terpiece of a public safety campaign by cation manslaughter, but more impor-
ing my cereal while holding my 4-
                                            the local media regarding holiday drink- tantly they wanted something positive
month-old daughter when my neighbor
                                            ing and driving.                           to come from Brent’s death. They all
Roger Spathias showed up at my door.
                                                 Richard knew that Harris County wanted the case heard before the 2004
Agitated and distressed, he told me that
                                            Assistant District Attorney Warren holiday season, hoping it might help

                                            a murder conviction Brent’s widow and
his brother-in-law, Brent Jones, had
                                            Diepraam had gotten                                          prevent other tragedies.
been killed by a drunk driver the night
                                            in a similar case in family all wanted
                                                                                                            The case was indict-
before. Knowing that I was an assistant

                                                                      more punishment obtaining statements
                                                                                                         ed in March after
district attorney, he began asking me all
                                            Houston (see the                                                           all the

                                            and he felt like the than 20 years, the
sorts of questions: What would happen
                                            article on page 39),                                         records and

                                            facts of the case more maximum for
next? What was the charge? The possible
                                                                                                         we needed for our

                                            than justified seeking intoxication
punishment? What did they need to do?
                                                                                                         grand jury investiga-
Roger was torn between anger and dis-

                                                                      manslaughter.
                                                                                                         tion. Unfortunately,
belief, but he was very focused. He and
                                            the higher charge.                                           while many people at
his wife, who was too grief-stricken to
                                            On the day the case                                          the     club     where
even come with him, wanted to make
                                            was filed Richard                                            Strickland had been
sure Jake Strickland was prosecuted to
                                            showed up at my office. The case had drinking remembered his roommate
the fullest extent of the law. I answered
                                            apparently been assigned to my court. passing out drunk and bloodying his
his questions and reassured him that
                                            He asked me to come on board as his nose in the process, no one noticed
Richard Alpert, the foremost authority
                                            co-counsel.                                Strickland. Needless to say, the room-
on intoxication offense prosecution in
                                                                                       mate’s memories of the night were
Texas, worked in our office and would
                                            Pretrial preparation                       somewhat vague, but we did at least
handle the case, at least pre-indictment.
     My first stop on Monday was            After the case was filed, Richard and I have a location for the drinking and a
Richard’s office. He was already review-    began meeting with the victim’s family general idea of the route to the crime
ing the case and working with Fort          to answer questions about the prosecu- scene. Abe Factor, a Fort Worth attorney
Worth Traffic Investigation Detective       tion and charges and to give them an with an extensive DWI defense back-
                                            overview.                                  ground, was appointed Strickland’s
Ray Wangler on his investigation. By the
next day Richard had confirmed                   First we met with Brent’s widow, attorney. After indictment both sides
Strickland’s two prior convictions for      Julie. Still using a walker to get around, agreed that trial would be the only way
DWI and his .20 blood alcohol concen-       she listened attentively to Richard to resolve the case: Mr. Factor told the
tration. Based on these facts, Richard      explain why we had chosen murder judge his client would never plead guilty
advised Detective Wangler to upgrade        rather than the more standard intoxica- to murder, and we never extended any
the charge to felony murder: felony         tion manslaughter charge. He explained plea bargain offer. Judge George
DWI plus driving the wrong way on the       the possibility of more punishment and Gallagher skipped the usual intermedi-
highway as the act clearly dangerous to     the uncertainty of trying a novel legal ate settings and set the case for trial
human life. Now, all of the local media     theory. Julie had no hesitation in asking October 18, 2004.
                                            us to press forward with the murder             As we approached our trial date,
began calling on the case. Within a
                                            charge.                                    Richard and I had discussed the strategy
week, six more people were killed in a
multiple-car intoxication-related acci-          We met with Brent’s siblings, and of presenting this murder case to the
dent in Tarrant County. The prosecu-        they agreed as well. Brent’s widow and jury. In preparation I began trying it
tion of Jake Strickland became the cen-     family all wanted more punishment repeatedly to my “shadow jury”: neigh-
                                            than 20 years, the maximum for intoxi- bors, friends outside the criminal justice

  PAGE 36
                                                                                            NOVEMBER/DECEMBER 2004




system, and my family. I would present      clearly dangerous to human life replaces      conducted jury selection. She main-
the basic facts and then ask “Do you        the traditional mens rea in felony mur-       tained that intoxication manslaughter
think that is murder?” Not one person       der. She was able to find similar murder      was the only appropriate charge in this
said no. On the contrary, they all seemed   prosecutions from out of state. The           case and asserted that felony murder
baffled by the question. “Of course it’s    judge overruled the defense’s motion on       should be based on a “real felony” like
murder!” was the uniform response.          the basis of the briefs.                      robbery, not felony DWI. She also
     The only people who disagreed with          We also waived out the intoxication      explained the mens rea requirement for
our legal theory were other lawyers, par-   manslaughter count at this point, rea-        criminal offenses and stressed that some
ticularly defense attorneys. The novel      soning that explaining both charges to        sort of “guilty mind” should be required
application of felony murder to a felony    the jury would be confusing and coun-         for murder.
DWI befuddled them, but we felt the         terproductive. We wanted to see whether            In my opening statement, I outlined
jury would be on our side unless the        a jury would agree with a murder charge       the case in story form as I usually do.
defense could convince them that the        on these facts, so we decided to present      The defense used its opening statement
law was wrong. The facts were also on       them with only a murder charge.               to again attack the charge and us, saying
our side: The elements we had to prove           About two weeks before trial date,       that the defendant wanted to plead
for felony murder were not really in dis-   the press calls began again. The trial was    guilty to intoxication manslaughter and
pute. No real doubt could be raised as to   covered by a pool camera for the local        that we were “playing to the cameras.”
intoxication, the two prior DWIs, driv-     TV stations gavel to gavel. Little did we     During guilt-innocence, Mr. Factor
ing the wrong way, and causing a death.     know that news coverage would be the          questioned Detective Wangler extensive-
     We decided that simple was the best    main defense attack on the case.              ly about his decision to upgrade the
approach and cut our potential witness                                                    charge to murder, suggesting that
list to the minimum for every essential     “Playing to the cameras”                      Richard had contacted the detective and
element: one bystander, Julie; the detec-   Richard’s voir dire was a very straightfor-   ordered the change upgraded only after
tive; blood draw officer; nurse; forensic   ward explanation of the elements. He          the media became interested. The detec-
analyst; an EMT; a police guard; and the    carefully avoided any suggestion that our     tive just looked at him, mildly puzzled,
medical examiner. The only defense          charge was anything dramatic or unusu-        and said, “But I always talk to Richard
seemed to be to take issue with the mur-    al. None of the venire had any concerns       Alpert when I’m working on one of
der prosecution, and that is exactly what   as to the murder charge with an under-        these cases.”
the defense decided to do.                  lying felony DWI; the only controversy             Not wanting to feed into the
     The defense submitted a motion to      was probation eligibility. Knowing that       defense assertions that Richard and
quash the felony murder indictment,         this was a death arising out of a third       Wangler had cooked up the charge, we
arguing that a mens rea is required for     DWI, we lost potential jurors in the          decided that I would direct the detec-
murder and that felony DWI is not a         double digits on consideration of proba-      tive. When I got him back on redirect,
true felony but an “enhanced misde-         tion.                                         though, I could not resist getting in a lit-
meanor” that could not form the basis of         The defense began its attack on the      tle plug for Richard: “Why do you
a felony murder prosecution. Tanya          murder charge during jury selection,          always talk to Richard about these types
Dohoney from our appellate section          accusing the DA’s office of overcharging      of cases, Detective?” Detective Wangler
wrote the brief in response, pointing out   to “play to the cameras,” that the prose-     took advantage of this obvious opportu-
that the plain language of the statute      cution was all a “publicity stunt,” all the   nity to extol Richard’s enormous expert-
allows any felony except manslaughter       while directing the venire panel’s atten-     ise in this area and how he trains all the
to be the basis for a felony murder. She    tion to the camera in the courtroom.          prosecutors, detectives, officers and
also argued that commission of an act       Terri Moore, Mr. Factor’s co-counsel,                              Continued on page 38

                                                                                                                         PAGE 37
Continued from page 37
                                                In my closing I quoted the applica-    can’t defend. Over and over again, they
nurses across the state on how to handle    tion paragraph from the court’s charge     have said that Jake wants to take respon-
these prosecutions. The respect Wangler     element by element on PowerPoint and       sibility but that I’ve charged him with
has for Richard was obvious to all in the   pointed out the overwhelming proof of      the wrong thing. But the defendant, the
courtroom.                                  each element several times through dif-    criminal, does not get to pick the
    Our case played out as we anticipat-    ferent witnesses. I wanted a logical and   charge.” Richard pointed out that with
ed as to driving the wrong way, intoxica-   dispassionate presentation of the facts as the holidays approaching, the best gift

  In punishment the defense repeatedly reminded the would be “a little justice.”
                                                                                                   Julie could get this Christmas

  jury that intoxication manslaughter has a maximum
  on 20 years, so the jury’s assessment of 35 years was hourthat. In punishment the
                                                                                                      It only took the jury an
                                                                                                          and 15 minutes to do

  the final rejection of the “wrong charge” argument. defense repeatedly reminded
                                                                                                   just

                                                                                                   the jury that intoxication
tion, and the priors, and the defense was a contrast to the inevitable attacks on manslaughter has a maximum on 20
not left with many challenges. Probably the charge itself.                             years, so the jury’s assessment of 35 years
the most damaging testimony came               Sure enough, Mr. Factor opened his was the final rejection of the “wrong
from a police officer who guarded Mr. argument by calling our prosecution charge” argument.
Strickland while in the hospital. “perverse, mean-spirited, and insensi-
Strickland volunteered to his guard that tive.” He asserted that it was mean-spir-
                                                                                       Conclusion
he was “f—ed up” drunk and “pissed ited to take away the defendant’s ability
                                                                                       In the end, the only people who really
off ” so he ended up speeding the wrong to plead guilty to intoxication
                                                                                       played to the cameras were the defense
way onto the highway and killing Brent manslaughter and insensitive to Julie
                                                                                       attorneys. We deliberately kept our pros-
Jones.                                     Jones by making her husband’s case the ecution as low-key and professional as
     No defense case was presented. At subject of a legal “experiment” with our
                                                                                       possible and totally ignored the media
the end of the case, counsel was left with jurors as the guinea pigs. (Ironically, Mr.
                                                                                       coverage to rebut this defense. While we
no real factual issues to argue. The Factor also argued the prosecution was
                                                                                       never got a chance to ask the jurors
defense       requested      intoxication motivated by the desire “to be the cen-
                                                                                       whether they believed in the “playing to
manslaughter as a lesser included charge terfold in next month’s prosecution
                                                                                       the cameras” defense, I think their ver-
and an instruction on recklessness as an magazine.”) Defense co-counsel Terri
                                                                                       dict tells us everything we need to know
element that we had to prove. The judge Moore also argued that Mr. Strickland
                                                                                       on that issue.
denied both requests.                      could not commit an act clearly danger-          Finally, this case reminded me about
                                           ous to human life if he were too intoxi- the difference between the law and jus-
“Perverse, mean-spirited,                  cated to know he was driving the wrong tice. While attorneys in the criminal jus-
and insensitive”                           way, and therefore, we had not proven tice system dislike expanding or chang-
As I worked on my closing with the our case.                                           ing established law, juries just don’t care
court’s charge open next to me, I studied      Richard encapsulated our response about what we attorneys think the law is
the application paragraph. The case had to the defense of “wrong charge” in his or should be. As long as it looks and feels
ended just as we had anticipated: The argument, saying, “I guess the defense is like justice to them, they will willingly
defense’s only hope was to do what they upset with me for charging Mr. apply old law a new way and give our
had done all along: attack the charge and Strickland with murder because they’re victims “a little justice.”
attack us.                                 stuck with law and facts that they really

  PAGE 38
                                                                                           NOVEMBER/DECEMBER 2004




                                        CRIMINAL LAW
                                                                                         tal, the paramedics noted the same signs
                                                                                         of intoxication.
                                                                                               While at the hospital, nurses noted
                                                                                         similar signs of Lomax’s intoxication
                                    By Warren Diepraam                                   and scheduled him for testing after
                                   Assistant District Attorney in Harris County
                                                                                         obtaining one blood sample from him.
                                                                                         The hospital analyzed the blood at
                                                                                         almost three times the legal limit in
                                                                                         Texas. However, as the deputies from
Charging felony DWI as                                                                   the scene arrived to obtain a mandatory
                                                                                         blood sample, Lomax fled the hospital.
                                                                                         Based on the driving facts, observations
felony murder, part 2                                                                    at the scene, and the hospital blood
                                                                                         results, the deputies filed an intoxication
The first case where Texas prosecutors charged a habitual                                manslaughter charge on Lomax.
                                                                                               Upon receiving the charge and
drunk driver with felony murder was tried in Houston.                                    learning of these facts, I didn’t feel that
                                                                                         justice would be served for a habitual
Here’s how the prosecutors did it.                                                       drunk driver, one who took the life of an
                                              As their Suburban crossed over the

W
            hat is the appropriate charge                                                innocent child, to simply face an intoxi-
            for a drunk driver who kills      northbound lanes, Mark Lomax was           cation manslaughter charge. I knew the
            another person? The answer        doing about 90 miles an hour in the        law of felony murder had recently been
is simple: intoxication manslaughter.         northbound lanes of Highway 6—and          successfully used in several creative pros-
However, there are facts and circum-          was about to end Alexea’s short life.      ecutions, notably injury to a child.
stances for which this second-degree               Mark Lomax struck the Suburban        Felony murder, under §19.02 (b)(3) of
felony charge does not seem adequate.         with such force that he caused Alexea’s    the Penal Code, lists the elements of the
The offense of “felony murder” is one         seatbelt to tear. She flew through the     offense as taking the life of another per-
potential resource to consider when a         vehicle and struck her head on the car’s   son by committing a clearly dangerous
defendant has two previous and admissi-       side panel. Alexea died from massive       act during the commission of any felony
ble DWI convictions.                          head trauma. Mark Lomax was basically      other than manslaughter. I wondered
    Consider the case of Alexea Castillo,     unhurt, although as the Harris County      why felony DWI could not be another
a beautiful 6-year old girl full of smiles,   Sheriff ’s Deputies arrived on the scene   example. It seemed to fit the plain word-
promise, and hope. On March 23, 2002,         and paramedics focused on his intoxica-    ing of the statute.
Alexea was in the middle seat of her          tion, he claimed to be injured. Deputies         The first question posed was
mother’s Suburban, which was about to         noted that Lomax had a steady odor of      whether a mental state was required for
make a left turn into a fast-food restau-     an alcoholic beverage on his breath,       a felony murder prosecution because
rant across three northbound lanes of         slurred speech, and glassy and bloodshot   DWI has no mental state. Research
Highway 6 in Harris County. Alexea was        eyes, and he exhibited unusual mood        began into this question with Rodriguez
focused on the toy she was about to           swings. They formed the opinion that he    vs. State,1 which provided a great histor-
receive, while her mother wanted to           was impaired due to the consumption of     ical summary of the mental state
reward Alexea for a great week in school.     alcohol. During transport to the hospi-                         Continued on page 40

                                                                                                                       PAGE 39
Continued from page 39
                                             DWI with two prior convictions as a          grand jury preparation, mainly for the
requirement of the felony murder rule.       felony under Texas Penal Code §49.09         care that went into the pleading. Listing
The research proved helpful because          (b)(2). Additionally, appellate courts       the elements of felony murder was quite
Rodriguez and other cases I read clearly     routinely list the offense as “felony        simple, but the devil was in the details of
stated that felony murder is an uninten-     DWI” and the justification for the           the underlying felony and how to allege
tional murder and the underlying felony      offense as combating habitual drunk          the dangerous acts. The Penal Code does
provides the mental state. Additionally,     drivers.4 Although the general language      not specifically name the DWI felony
the Texas Court of Criminal Appeals          in the cases listed the offense as felony    offense. Therefore, I decided to name
had previously ruled that the felony         DWI with the enhancements classified         the offense “Felony DWI, Third
murder rule “dispenses with proving          as elements, there was no case directly      Offense,” and I listed the previous con-
mens rea of the homicide … and it            on point.                                    victions for notice purposes (in case of a
appears that any felony can serve as the          The last question pondered before       potential lesser-included instruction,
underlying felony.”2 Logically, because      proceeding to higher authorities was         anticipating that the defense would raise
there is no mental state requirement for     whether felony DWI was a lesser-             a causation issue because of the driving
DWI, the caselaw supports a felony           included offense of intoxication             facts). This was helpful as the judge later
murder charge using felony DWI as the        manslaughter. It seemed that there was a     quashed the third offense language due
underlying offense.                          potential argument that it could be, and     to a defense stipulation to the priors,
     Additional research into this issue     I needed an answer. One case that            leaving the language “Felony DWI.”
outside of Texas also proved helpful. At     proved helpful held that the two offens-     The causation issue was pursued at trial
least three other states had previously      es have separate and distinct elements.      by the defense, raising the DWI lesser. I
prosecuted habitual drunk drivers under      Namely, one has two prior convictions        was not too concerned about the lesser
a felony murder statute, notably             as elements, and the other has a deceased    offense because Mark Lomax was a
Missouri, North Carolina, and                victim as an element.5 This would not be     habitual felon, having an auto-theft con-
California. The cases generally were sup-    a roadblock to prosecution either.           viction in 1990 for which he served five
portive of the underlying theory that             With no case on point and being a       years and an unauthorized use of a
habitual drunk drivers who kill should       trial bureau prosecutor, I took the next     motor vehicle conviction in 1994 for
face greater punishments; however,           appropriate step and contacted the           which he served eight years. By alleging
those states had enabling statutes listing   experts in our appellate bureau. The         felony murder, I was assured that the
habitual drunk driving as dangerous          reaction was surprisingly supportive:        horrendous facts of the case would be
felonies. The Texas statute is obviously a   “Why has nobody done this before?”           presented to the jury at the trial’s guilt
general statute that excludes only           they asked. With the appellate seal of       phase, and I felt that a jury would not
manslaughter. As far back as 1978, Texas     approval, the next step was to use the       sympathize with the defendant on a cau-
caselaw has also dictated that a lesser-     TDCAA website’s User Forums to seek          sation issue.
included offense of manslaughter may         additional guidance. Several individuals          In reference to the clearly dangerous
not constitute the underlying felony.3       responded and provided useful informa-       acts, I listed operating a motor vehicle at
Lastly, while there is no direct case on     tion. However, the reaction on the web-      an unreasonable speed, failing to main-
point, it is inadvisable to list intoxica-   site was generally similar to that of this   tain a proper lookout for traffic and road
tion manslaughter as the underlying          office’s appellate bureau. The conclusion    conditions, and failing to take proper
felony.                                      was that a felony murder charge would        evasive actions. The dilemma in this
     The second question was whether a       succeed at trial and on appeal, thereby      pleading was whether or not to allege
DWI with two priors was a felony             clearing the way for a grand jury presen-    these acts as reckless. Ultimately, I
offense or simply a misdemeanor offense      tation.                                      decided not to allege any mental state
punished as a felony. The statute lists           This case was a bit more onerous in     because Texas courts have repeatedly

  PAGE 40
                                                                                                 JANUARY/FEBRUARY 2005




held that a mental state is unnecessary. have at least two prior convictions for ual drunk drivers who kill to be treated
(Some jurisdictions that have subse- DWI, would have to be impaired on the the same as a first offender. The felony
quently handled this type of offense have occasion in question, and would have to murder statute allows for a first-degree
elected to allege recklessness in this por- commit clearly dangerous acts to be felony punishment range to apply to
tion of the indictment.) With the paper- charged with this offense. There was not their conduct. Several other jurisdic-
work completed, the case was presented one juror unable to follow the law. The tions, including Andrews and Tarrant

law was explained to the Our appellate bureau’s reaction was
to a grand jury. Once the                                                                                   Counties, are handling


                                 surprisingly supportive: “Why has
                                                                                                            this sort of case, and I
grand jury, the case was                                                                                    have another one pend-

     As is customary in this nobody done this before?” they asked.
indicted with little trouble.                                                                               ing. Unfortunately, it
                                                                                                            will be a while before an
county, the media often                                                                                     appellate court rules on
reviews all true bills and found the case defense lawyer could not alter any opin- the case. Mark Lomax has decided to
notable. The media and public reaction ions, and a jury of 12 was seated in the represent himself on the appeal, which
was also favorable. However, and quite case.                                          was assigned to the Waco Court. As of
predictably, the defendant and his               During the trial, the only issues this writing, no brief has been filed.
lawyer were not amused. The defense were those normally faced in a tradition-
attorney soon challenged the indictment al case of this type: officer training, Editor’s note: Another Texas prosecutor,
with a motion to quash alleging: failure intoxication, admissibility of evidence, John Pool, the DA in Andrews County,
to allege a mental state; that DWI is a contributory negligence, extrapolation, recently got a guilty verdict in his own
misdemeanor offense and not a true etc. The defense lawyer made several felony murder/DWI trial. For sample
felony; that the facts allege a manslaugh- arguments that this charge was unprece- pleadings (indictments and jury charges),
ter charge; and a lack of supporting dented, but it did not seem to affect the visit www.tdcaa.com, and click on the
caselaw or authority for the charging jury or their focus upon the facts or the Forms & Briefs button. Search for “DWI.”
decision. However, those arguments offense. The case lasted a week with wit-
proved unpersuasive to Judge Mary Lou nesses and dueling experts. Arguments Endnotes
Keel because the statutory language was from the defense centered on the case’s
favorable and there was no contrary unprecedented nature and the lack of 1 953 S.W.2d 342
                                                                                      2 See Johnson v. State, 4 S.W.3d 254 (Tex. Crim. App.
caselaw. Having lost this battle, the forensic specialists in the blood analysis.
defense next focused on challenging the Apparently, these arguments were 1999).
evidence and convincing the jury that unpersuasive as jury deliberations lasted
                                            just over an hour, and a sentence of 55 3 See Garrett v. State, 573 S.W.2d 543 (Tex. Crim. App.
                                                                                      1978).
this charge was improper.
     Armed with a favorable ruling on years took about the same amount of
the law of felony murder, I was the first time. Ironically, some jurors commented 4 See Hollen v. State, 117 S.W.3d 798 (Tex. Crim. App.
to discuss the law with the jury panel— after the trial that the reason the defen- 2003), et al.
the greatest benefit. After talking with dant did not receive a life sentence was 5 See Gibson v. State, 995 S.W.2d 693 (Tex. Crim. App.
Hans Nielsen, co-counsel at trial, we because he did not have any intent to 1999).
decided that a brief history of the Felony take a life. Obviously, they understood
Murder Rule, along with a common the concepts of guilt, mens rea, and pun-
example of an accidental discharge of a ishment!
firearm during a robbery, would prove            In conclusion, traffic deaths caused
helpful. Additionally, we emphasized by impaired drivers are increasing and
that a hypothetical defendant would there is simply no reason to allow habit-

                                                                                                                              PAGE 41
          THE TEXAS PROSECUTOR




                                        CRIMINAL LAW
                                                                                           our county is two to five percent of our
                                                                                           cases go to trial, yet a much higher per-
                                                                                           centage are set for trial. Most cases then
                                                                                           plead late in the process. That creates
                                    By Betty Arvin                                         inefficiency at a minimum and injustice
                                  Deputy Chief in the Criminal Division                    on occasion.
                                 District Attorney’s Office in Tarrant County
                                                                                                Bad things may happen when the
                                                                                           prosecutors are uncertain what cases will
                                                                                           actually go to trial because of overloaded

“Rocket docket” and                                                                        trial dockets. Prosecutors may have to
                                                                                           try a case without sufficient preparation,
                                                                                           or they may have to try a case that

speedier case flow                                                                         would otherwise plead to protect a case
                                                                                           farther down the docket. Additionally,
                                                                                           poor docket control allows defense
What happens when you gather members of the criminal                                       attorneys and prosecutors to procrasti-
                                                                                           nate. As a result, everyone’s time and
justice community in one room to talk about caseload                                       money is wasted, and victims have to
management? Surprisingly, lots of ideas for streamlining                                   wait longer for resolution.
                                                                                                Inefficient docketing happens
the process.                                                                               because most courts administer all cases
                                             counties develop and implement more           the same way. In our county, all felony

I
    n the spring of 2004 the Tarrant
    County jails were near capacity, the     efficient caseflow systems. What we           cases are set on the same dockets and
    bill for indigent defense was triple     learned from two days of meetings was         overseen by the court in the same way,
the budget allocation, and our case          this: More personnel and more courts          regardless of the offense’s degree or case’s
backlog was increasing. How did              are not necessarily the answer for            complexity. Departures from this pro-
Tarrant County respond? We had a             increased caseloads. The key is to handle     gram are rare. The cases are carried
meeting, of course. This meeting, how-       all cases more efficiently. To that end she   together until there is a final disposition.
ever, was different from most. Tarrant       suggested we institute “Differentiated        The result is some cases that should be
County judges, defense bar, prosecutors,     Case Management” or DCM.                      resolved quickly are slowed and other
community supervision and corrections                                                      cases needing more work are pushed to
personnel, county commissioners,             The concept                                   disposition more quickly than is just.
clerk’s office, sheriff ’s department, and   The premise of DCM is that all criminal       Differentiated Case Management
information technology (IT) personnel        cases do not need the same amount of          changes that system by treating cases
met with the sole purpose of finding a       court or attorney time. What a DCM            differently for docketing and court
just, manageable, affordable solution for    system tries to do is to determine the        management purposes.
our problems.                                appropriate level of court and attorney            Our model of DCM has two key
     We brought in a facilitator, Mary       attention to move each individual case        components. Incoming cases are identi-
Sammon, from the National Center for         to disposition in a just and efficient        fied by different tracks. Each track has
State Courts in Williamsburg, Virginia.      manner. Nationally, 95 percent of cases       an estimated time for disposition. The
She has a background in case manage-         are disposed of without a trial, and Texas    other component is the backlog reduc-
ment and travels the country helping         follows this average. What we found in        tion, necessary to avoid dooming the
                                                                                           system before it begins.

  PAGE 42
                                                                                              JANUARY/FEBRUARY 2005




     DCM groups cases into three tracks       will not proceed on a drug offense until      this, prosecutors should wherever possi-
based on offense category. The three          we have a conclusive lab report. Because      ble, make their best plea offer early. If
tracks are: Expedited, Basic, and             this process can take some time, we have      the offer is refused, the offer should
Complex. Expedited cases generally do         placed drug cases in the Basic category       either increase or remain open. It should
not need the same number of court             (see below). Our hope is to eventually        not be lowered except under extraordi-
appearances and can be resolved more          streamline the lab process so we can get      nary circumstances.
quickly than complex cases. Complex           the results more quickly and shift drug            This approach may require a funda-
cases usually need more judicial over-        cases to the Expedited track.                 mental shift in our way of conducting
sight so there are more cases settings and         Complex cases include capital mur-       business. What has traditionally hap-
the timelines are longer.                     der, murder, and any other case that the      pened is that a case set for trial is often
     In our model, when cases are filed       court determines involves complex legal       pled for less than the original offer,
by the DA’s office, the felony cases are      or evidentiary issues. These cases could      maybe because the case has been on the
automatically assigned a track deter-         include those with expert witnesses,          docket for so long that our proof has
mined by offense category. The case           DNA, or other time-intensive issues.          weakened. Sometimes we cut offers just
track for a given case may be changed at      Many of these cases in this track will be     to get rid of the case and go to trial on a
any time by the trial court after consul-     the two to five percent of cases that go to   good case that we really want to try. At
tation with the parties, giving the system    trial. The goal is to try these cases with-   times there are cases that we really need
flexibility for unique circumstances.         in nine to twelve months of indictment.       to try, but we cannot until we dispose of
Once the case is filed, it is randomly             Basic cases include drug cases and all   the cases ahead of it on the docket.
assigned to one of the felony courts. Our     other felony cases not designated             Finally, so long as defense counsel
IT wizards designed a system to auto-         Expedited or Complex. The majority of         believes that a later offer may be more
matically send notice to the defendant,       felony offenses fall within this track.       favorable to a client, the attorney has no
bail bondsman, and defense attorney for       Initially, many felony offenses, including    incentive to move the case.
each court setting based on the filing        sexual assaults, injury cases, and                 The focus of Differentiated Case
date and case track. The DA’s office and      manslaughter cases receive this designa-      Management is to dispose of most cases
the court personnel receive notice            tion. The track designation, however,         early in the process and to focus the
through setting dockets handled prima-        may be changed as particular issues           attorneys and courts on cases that need
rily through e-mail.                          emerge within a case. For example, if an      extra time and attention. To move more
                                              injury to a child case involves serious       cases early, a plea offer must not be low-
The three tracks                              bodily injury requiring expert witnesses,     ered during the process. The defense bar
Expedited cases can be handled with a         the case track could be changed to the        and defendant must be re-educated that
minimum of judicial supervision and           Complex tract. Basic cases should be dis-     the offer goes up if they wait to take care
require little additional investigation.      posed by trial or otherwise within nine       of their business. This approach forces
They include non-drug state jail felonies     months of indictment.                         the State as well as the defense to be pre-
and most third-degree felonies. These                                                       pared on their cases much earlier than
cases almost always plead and rarely go       Plea offers                                   we have in the past. There is more pres-
to trial. Cases in this track should result   A DCM system emphasizes the early res-        sure on the State because prosecutors
in pleas or other disposition within a        olution of cases, which can work to the       must have all relevant information for
short time frame (four to six months          State’s advantage. If prosecutors plead       making a fair and just plea offer very
from file date, if not sooner).               most of the non-aggravated cases early, it    early in the process. Certainly in those
     Tarrant County currently exempts         gives them time to work on the cases          cases where the case evaluation depends
drug cases from this track because we         that need more attention. To achieve          on DNA or other tests, an offer must be
                                                                                                                 Continued on page 44

                                                                                                                          PAGE 43
          THE TEXAS PROSECUTOR




Continued from page 43
                                          who take court appointments had to         reorganizing the criminal courts system,
postponed, but the DCM allows extra
                                          agree that they will abide by the DCM      we knew that we could not put the new
time for special cases.
                                          guidelines, including making court         system in place until we had significant-
                                          appearances prior to indictment.           ly reduced our backlog. As of September
Working task force                            The clerk’s office and court coordi-   1, 2004, Tarrant County had 1,973
To determine which cases should fall      nators were worried about implement-       pending felony cases that were one year
within each track and establish timelines ing a new system with three separate       past indictment date. We had to come
for each track, several of the district   tracking systems. They were unsure that    up with a way to dispose of those cases
court judges formed a task

from the DA’s office and the In the new system, prosecutors should wherever
force with representatives

defense bar. We met regularly possible make their best plea offer early. If the offer
over several months to discuss is refused, it should either increase or remain open.
these issues. While we did not
always agree, we developed                 everyone would be properly notified. quickly. What we devised came to be
guidelines for the Expedited, Basic, and They solved the problem by working called the “rocket docket.”
Complex case tracks. Additionally, we with the county IT group and developed             For several weeks in August and
decided what case settings were neces- a cost- and time-saving electronic notifi- September, the felony courts did not set
sary for each category of case. Perhaps cation system.                               any jury trials. Instead, the courts each
most difficult, we determined timelines        Some judges were apprehensive held status dockets where all cases more
for the tracks.                            because they felt they were giving up than a year old were set. The cases were
     As we designated the tracks, the task control of their cases and losing autono- pled during the status dockets or set for
force worked with court and clerk’s my. Specifically, the Differentiated Case trial during a designated four week peri-
office personnel, the county IT depart- Management system requires uniform od in October and November. The cases
ment, the Attorney Appointments plea papers. Before the new system each that were not pled were then put on a
Office that oversees Senate Bill 7 issues, felony court had a unique set of paper- master list. During the four-week period
the community supervision and correc- work for pleas and revocations. of trials, our nine felony courts and two
tions department, and local bail bonds- Additionally, settings meant different auxiliary courts tried cases back to back.
men to identify and solve problems that things in each court. For example, an Cases were assigned to courts without
the new system will necessarily cause. “announcement setting” in one court regard to the court of origin. As one case
While each group had numerous con- was called a “first appearance docket” in finished, another case was called. In
cerns, the task force systematically another court. A “contest docket” in one essence, the Tarrant County judges cre-
worked through the issues and devel- court was a “trial setting” in another ated one district court with eleven
oped ideas for handling the problems.      court. Attorneys on both sides of the bar judges. One coordinator oversaw the
One concern expressed by the defense had to learn each judge’s “local rules” to movement of cases among the tribunals.
bar was that they would not get paid by effectively practice in the courts. With We had great success with this approach.
their retained clients because they had to DCM each court uses the same paper- Our prosecutors worked well together
make a plea or trial decision prior to work, and each setting means the same and tried cases in many courts. Because
receiving their fee. The judges worked thing in each felony court.                   our attorneys had prepared their trial
with them to set up realistic timelines                                              cases and plead the appropriate ones,
for their cases that allow them time to be                                           our conviction rate was terrific even
paid but would not backlog the system
                                           “Rocket docket”
                                           As our task force was working through with the hectic pace.
unnecessarily. In return the attorneys                                                   To ensure that our victim cases
                                           the inherent problems of completely

  PAGE 44
                                                                                               JANUARY/FEBRUARY 2005




received the attention they needed, most
                                                                                    AS THE JUDGES SAW IT
homicides were either exempt from                                                  By Betty Marshall
                                                                                   Assistant State Prosecuting Attorney in Austin
rocket docket or were specially set on a
certain date. Similarly many, although
not all of the child sex cases were tried
earlier or were specially set.
     At the end of the rocket docket we       The top cases decided by the Court of Criminal Appeals
had 201 cases more than a year old still
pending. Of these, many defendants are
                                              from October 6, 2004, through December 8, 2004.
unapprehended, housed in a mental             Questions                                      explained all the admonishments,
facility, or awaiting a decision on appeal.                                                  waivers, and plea documents to Costilla
The effort was exhausting for prosecu-
tors and many others, but the results
                                              1   After Maurice Jabarr Charles hand-
                                                  wrote a three-page statement and
                                              pled guilty to aggravated robbery, aggra-
                                                                                             and had witnessed him sign each one.
                                                                                             The judge then accepted Costilla’s plea
were better than we expected. As a            vated kidnapping, and attempted bur-           of guilty to felony DWI. Was this error
result, we can implement the new DCM          glary, he claimed in a motion for new          under art. 27.13 CCP, which says that a
system in January 2005.                       trial that his trial counsel was ineffective   plea of guilty in a felony case “must be
     We know there will be unanticipat-       for not conducting an independent              made in open court by the defendant in
ed problems once the system begins, but       investigation into the voluntariness of        person?”
for the present the criminal bar and          his confession. At Charles’ request, the
judges are committed to making the            hearing was conducted by way of affi-          ______ yes ______ no
new DCM work. Our county adminis-             davits. Charles filed six affidavits con-
tration will no longer support a bloated
system: All of the parties know that
budgets are limited. This fiscal pressure
                                              taining numerous ambiguities, vague
                                              references, and conclusory statements,         3    George Moff, the chief appraiser of
                                                                                                  Nueces County, made numerous
                                                                                             purchases of equipment and supplies
                                              and the State filed no contradictory affi-
compels judges, prosecutors, and              davits. The trial court overruled Charles’     from Jan. 1, 1993, to Dec. 31, 1999.
appointed defense attorneys to seek a         motion without making findings of fact.        Some of these were unauthorized by the
solution. If the DCM system performs          Does a trial court err in overruling a         appraisal district, according to the State,
well with felony cases, then some ideas       motion for new trial where there are no        though the indictment didn’t specify
may be implemented with misdemeanor           contradicting affidavits?                      which ones were allegedly unauthorized
cases to further the savings.                                                                but merely charged Moff with misapply-
     DCM is a radical departure from          ______ yes ______ no                           ing between $20,000 and $100,000 of
business as usual in Tarrant County.                                                         the district’s property over seven years.
This system seeks to enhance public                                                          When Moff filed a motion to quash ask-
confidence in our criminal justice sys-
tem and instill more pride among the
                                              2  Eusebio Soloranzo Costilla couldn’t
                                                 speak English, so he stood silent as
                                              his bilingual attorney answered the
                                                                                             ing for more specificity, the State argued
                                                                                             that it had not yet determined which
professionals who administer it. We seek      judge’s questions for him at his plea pro-     purchases it planned to use to support
to improve the quality of justice at a        ceeding. When the judge asked if               its case and that the identification of the
cheaper cost.                                 Costilla understood the range of punish-       unauthorized purchases was an eviden-
     Remember, seeing that justice is         ment, for instance, the attorney               tiary matter not required to be pled in
done is what we promise to do everyday.       answered, “He understands the range of         the indictment. Was the State right?
                                              punishment part of this offense, yes.”
                                              The attorney also stated that he had           ______ yes ______ no
                                                                                                                  Continued on page 46

                                                                                                                           PAGE 45
         THE TEXAS PROSECUTOR




Continued from page 45
                                           license check even though the officer’s

4   Hector Salinas, a potential govern-
    ment witness in a pending federal
                                           original articulable suspicion has already
                                           been resolved?
                                                                                        8  Robbie Goodman was charged with
                                                                                           theft under §31.03, overcharging a
                                                                                        lumber company customer a total of
drug trial, was taken from his used                                                     over $200,000 on or about July 1, 1999.
clothing store in McAllen and transport-   ______ yes ______ no                         After the jury was empaneled and sworn
ed to Mexico, where he was tortured and                                                 and the State’s first witness testified,
killed. Can Humberto Rodriguez, Jr.,
one of the kidnapping conspirators, be
tried for capital murder in Texas even
                                           6   After their daughter accused an
                                               uncle, Duane Keith Jenschke, of sex-
                                           ual assault, her parents went to his resi-
                                                                                        there was a lengthy bench conference,
                                                                                        and the State moved successfully to dis-
                                                                                        miss the indictment. Can the State retry
though none of the elements of the         dence, entered his locked truck without      Goodman for aggravated theft under
offense of murder took place in Texas?     his knowledge or consent, and took a         §31.09, overcharging the customer over
                                           used condom. They didn’t notify the DA       $200,000 during a course of conduct
______ yes ______ no                       for over two years, however, due to fam-     beginning on or about May 1, 1999,
                                           ily and religious concerns. Eventually,      and continuing until on or about

5a     After Kendall County Deputy
       Forslund pulled Craig Allen
Kothe over for possible DWI, he
                                           Jenschke was charged with aggravated
                                           sexual assault of a child and claimed in a
                                                                                        October 4, 2000?

                                           pretrial motion that the condom should       ______ yes ______ no
obtained Kothe’s license and began a       be suppressed under art. 38.23(a) CCP
routine driver’s license and warrant       because the parents obtained it by com-
check. While waiting on the results, he
conducted an HGN test and determined
                                           mitting a burglary. Should the condom
                                           be suppressed?
                                                                                        9   At his trial for possession of more
                                                                                            than four grams of methampheta-
                                                                                        mine with intent to deliver, Freddie L.
that Kothe was not intoxicated. A few                                                   Campbell denied possessing the 8.64
minutes later, the warrant check came      ______ yes ______ no                         grams of methamphetamine found in a
back negative, but Deputy Forslund was                                                  black backpack in a car in which he was
almost simultaneously told that Kothe
might possess a blue bank bag contain-
ing old silver coins taken from a house-
                                           7   Matthew Wayne Kurtz was driving
                                               along westbound State Hwy. 121
                                           when a City of Plano police officer saw
                                                                                        a passenger. He admitted, however, that
                                                                                        on the day of the offense he possessed
                                                                                        less than one gram of methamphetamine
hold safe. He asked Kothe about the        him move his vehicle unsteadily from         at a separate location, in a toolbox in his
coins, received permission to search       the shoulder of the highway to the right     own vehicle. Is he entitled to a jury
Kothe’s vehicle, and discovered drug       lane and back again several times. The       charge on the lesser included offense of
paraphernalia in the front console.        officer stopped the vehicle, saw and         possession of under one gram of
Kothe’s passenger subsequently admitted    smelled evidence of intoxication, and        methamphetamine?
to possessing two baggies of heroin        arrested Kurtz for DWI. At the hearing
which Kothe had asked her to hold.         on Kurtz’ motion to suppress, the trial      ______ yes ______ no
First, can Kothe complain about the        court concluded that the officer
search of the passenger?                   observed only traffic offenses before the

______ yes ______ no
                                           stop and that the westbound lanes of
                                           Hwy. 121 are in the City of Frisco. Can
                                                                                        10     The first time Ronnie Joe Neal
                                                                                               was indicted for possessing a
                                                                                        deadly weapon in the Rusk County
                                           a Plano officer stop a vehicle for traffic   jail—a toothbrush sharpened into a

5b    And, second, is it reasonable to
      detain a driver for an additional
3–12 minutes while waiting on a driver’s
                                           offenses in Frisco?                          stabbing instrument—he negotiated a
                                                                                        two-year sentence with the State. The
                                           ______ yes ______ no                         charges were subsequently dismissed



  PAGE 46
                                                                                               JANUARY/FEBRUARY 2005




because Neal was convicted in another        Answers                                         seven years. State v. Moff, No. 458-03,
case. Three months later, when Neal                                                          delivered Oct. 6, 2004.
appeared in federal court to allege mis-     1   No. A trial court’s denial of a motion
                                                 for new trial based solely on affidavits
treatment in the jail, he admitted on the
stand that he had possessed the weapon.
The State reindicted him six days later
                                             is reviewed under a deferential standard,
                                             and the reviewing court may impute              4   Yes. Under §1.04(a) PC, Texas has
                                                                                                 territorial jurisdiction if either the
                                                                                             conduct or a result that is an element of
                                             implicit factual findings that support the
on the weapons charge and declined to        trial court’s ultimate ruling when such         the offense occurred inside the state.
reoffer the two-year sentence. Neal was      implicit factual findings are both reason-      Because capital murder is a “result of
convicted and argued to the trial court at   able and supported by the record. Here,         conduct” offense (i.e., murder), which
punishment that the reindictment was         the trial court did not err because it          also includes “nature of conduct” or
unfair and retaliatory and that he should    could have reasonably disbelieved some          “nature of circumstances” elements (i.e.,
be assessed the original two-year sen-       or all of the affiants’ statements, found       kidnapping, robbery, aggravated sexual
tence. He got six years. On appeal, when     them inconclusive, contradictory, inter-        assault, victim was a peace officer, etc.),
he claimed prosecutorial vindictiveness,     nally inconsistent, or ambiguous, and           the aggravating factor is an element of
the Court of Appeals agreed because the      viewed them with skepticism because             the offense of capital murder. In this
sequence of events—the charge was dis-       they were not supported by an offer of          case, the kidnapping of Salinas was a
missed, Neal’s civil suit was heard, and     live testimony. Charles v. State, 146           required “nature of conduct” element
then the same charge was refiled—raised      S.W.3d 204 (Tex. Crim. App. 2004).              that occurred in Texas, so Texas had
a presumption of prosecutorial vindic-                                                       jurisdiction over the offense. Rodriguez
tiveness and there was no evidence to                                                        v. State, 146 S.W.3d 674 (Tex. Crim.
overcome it. Did Neal sufficiently pres-
ent and prove prosecutorial vindictive-
                                             2   No. Article 27.13 does not require
                                                 an oral plea. The better practice is to
                                             inquire of the defendant personally what
                                                                                             App. 2004).

ness?

______ yes ______ no
                                             his plea is, but the trial court in this case
                                             complied with the law where all the facts       5   Yes and yes. Normally, a defendant
                                                                                                 cannot complain about the search of
                                                                                             a third person, but Kothe can complain
                                             point to Costilla’s voluntary desire to
                                             plead guilty: He was present and his plea       about the search of his passenger because

11      In the middle of the afternoon,
        Tracy Glenn Gallups crashed his
truck into a utility pole, abandoned it,
                                             was entered in open court through his
                                             bilingual attorney. Costilla v. State, 146
                                                                                             the search was the “fruit” of Kothe’s own
                                                                                             right to be free of any illegally prolonged
                                                                                             detention. In this case, though, the
                                             S.W.3d 213 (Tex. Crim. App. 2004).
and, smelling of alcohol and bleeding                                                        detention was not illegal because it is
from the mouth, walked to his home                                                           reasonable to wait a few minutes for
about three blocks away. When an offi-
cer arrived at the home, he saw Gallups
                                             3   No. The sufficiency of an indictment
                                                 is a question of law that should be
                                             reviewed de novo on appeal. Here,
                                                                                             warrant check results, and Deputy
                                                                                             Forslund did not purposely prolong
with blood around his mouth standing         Moff ’s indictment correctly tracked the        Kothe’s detention either before or after
inside a full-length glass storm door. He    language of the statute setting out the         receiving the results. State v. Kothe, No.
asked Gallups to step outside, but           offense of misapplication of fiduciary          1738-03, delivered Oct. 20, 2004.
Gallups instead motioned for the officer     property, but it failed to sufficiently
to come in. The officer entered the
home and, after confirming that Gallups
had been driving and was intoxicated,
                                             inform him of the specific transactions
                                             that allegedly violated the statute. It is      6   Yes, but not because the parents
                                                                                                 committed a burglary. When a per-
                                                                                             son who is not an officer or an agent of
                                             unreasonable to require a defendant to
arrested him for DWI. Was this warrant-      gather evidence and prepare a defense           an officer takes property that is evidence
less home arrest lawful?                     for each of the credit card and cash            of a crime, without the effective consent
                                             transactions he made as appraiser over
______ yes ______ no                                                                                              Continued on page 48

                                                                                                                           PAGE 47
          THE TEXAS PROSECUTOR



Continued from page 47
                                              the trial court, to ensure Goodman’s            to dismiss or quash the indictment on
of the owner and with the intent to turn
                                              rights under the Double Jeopardy                that basis, never argued at trial that his
over the property to an officer, the con-
                                              Clause, may require the State to prove,         due process rights had been violated by
duct may be non-criminal even though
                                              by a preponderance of the evidence, that        the reindictment, and only argued retal-
the person has the intent to deprive the
                                              it is not relying upon such proof. If the       iation in mitigation of punishment. As a
owner of the property. Here, the parents’
                                              State is unable to so prove, the trial court    result, he never made a timely, specific
intent in taking the condom was to
                                              must select, from the thefts proven by          claim of prosecutorial vindictiveness, the
resolve the issue within the family, not to
                                              the State, the theft that most closely          State never had the opportunity to offer
turn the condom over to an officer, so
                                              resembles the theft alleged in the first        rebutting evidence, and the trial court
their conduct violated art. 38.23(a) and
                                              indictment and strike it from the jury’s        never had the opportunity to rule. Neal
the condom was inadmissible. Jenschke v.
                                              consideration. Ex parte Goodman, No.            v. State, No. 1559-03, delivered
State, 147 S.W.3d 398 (Tex. Crim. App.
                                              1087-03, delivered Oct. 20, 2004.               November 17, 2004.
2004).


7   No. Under art. 14.03(g) CCP, police
    officers and marshals of cities, towns,
                                              9    No. Under art. 37.09 CCP, an
                                                   offense is a lesser included offense “if
                                              it is established by proof of the same or
                                                                                              11      Yes. Gallups’ warrantless home
                                                                                                      arrest was authorized by arts.
                                                                                              14.05(1) and 14.03(a)(1) CCP. Under
and villages do not have the authority to
                                              less than all the facts required to estab-      art. 14.05(1), an officer making an arrest
arrest without warrant for violations of
                                              lish the commission of the offense              without a warrant may not enter a resi-
the Rules of the Road in the
                                              charged.” Thus, in determining whether          dence to make the arrest unless a person
Transportation Code committed in their
                                              an offense is a lesser included offense,        who resides in the residence consents to
presence or view when they are outside
                                              both the statutory elements and the sur-        the entry. In this case, the arresting offi-
their jurisdictions. Because Kurtz was
                                              rounding facts and circumstances must           cer demonstrated Gallups’ hand gesture
arrested by an officer outside his juris-
                                              be examined to see if there are two dis-        at the motion to suppress hearing, there-
diction and not authorized to detain
                                              tinct criminal acts. Here, the offense          by supporting the trial court’s decision
him for traffic offenses, the arrest was in
                                              Campbell confessed to, possession of less       that Gallups consented to the police
violation of art. 14.03(g) and evidence
                                              than one gram of methamphetamine,               entry. In addition, under art.
obtained as a result is not admissible.
                                              would appear to fulfill the statutory ele-      14.03(a)(1), an officer may arrest with-
State v. Kurtz, No. 1397-03, delivered
                                              ments of a lesser included offense, but a       out a warrant a person found in a suspi-
Oct. 20, 2004.
                                              closer look at the facts reveals that the       cious place under circumstances which
     Note: Kurtz addresses only the
                                              alleged possession of less than one gram        show the person is guilty of a breach of
authority of city police officers to arrest
                                              was a separate offense, unrelated to the        the peace. In this case, the police could
without warrant for traffic offenses out-
                                              crime for which he was charged (posses-         arrest Gallups without a warrant because
side their jurisdiction. The authority of
                                              sion of over four grams of methamphet-          they had probable cause to believe he
city police officers in non-traffic offense
                                              amine). His possession of less than one         had committed DWI, a breach of the
cases (i.e., the continuing validity of
                                              gram in his toolbox was therefore not a         peace; and there were exigent circum-
Angel v. State, 740 S.W.2d 727 [Tex.
                                              lesser included offense of possession           stances, the need to determine Gallups’
Crim. App.1987] [a city police officer’s
                                              with intent to deliver over four grams          blood-alcohol level, and Gallups’ home
jurisdiction is county-wide]), is current-
                                              found in the backpack and he was not            was a suspicious place (the place he
ly pending before the court.
                                              entitled to a lesser included offense           walked to soon after abandoning his
                                              instruction. Campbell v. State, No. 081-        wrecked truck at the scene of an acci-

8   Yes, but only if the State, in proving
    aggravated theft, does not rely on
proof of the theft alleged in the first
                                              03, delivered Oct. 27, 2004.                    dent). Gallups v. State, No 897-03, deliv-
                                                                                              ered Dec. 8, 2004.

indictment or any of its lesser included
offenses. At the aggravated theft trial,
                                              10     No. Neal failed to preserve his
                                                     vindictiveness claim for appellate
                                              review because he never filed a motion

  PAGE 48
                                                                                               JANUARY/FEBRUARY 2005




                                     DR. JOHN’S CORNER
                                                                                             explain my situation and ask forgiveness
                                                                                             would have prevented two months of
                                                                                             worrying and self-guilt. I constantly
                                                                                             preach to others that our perceived
                                    By Dr. John Krampitz                                     quality of life is directly proportional to
                                    UT Houston School of Public Health in Austin             making the personal decision to make it
                                                                                             better. We can control our stress levels.
                                                                                             We do have the power to maintain a
                                                                                             healthy weight. We can improve our
                                                                                             relationships with our family and our-
The destructive power of stress                                                              selves. Yes, it will be harder for some,
                                                                                             and many of us will need the assistance
Stress is a cycle of destruction, and not taking control of                                  of a professional coach. But as long as
                                                                                             we have the power to make a decision,
it can lead you down a rocky path.                                                           success is possible.
                                              tion) when things like that happen.                 Success doesn’t mean you’ll have no


I
     missed an issue of the Prosecutor. Or
     rather, I failed to submit a follow-up   (Editor’s note: For the record, I think Dr.    stress because stress is a part of life itself.
     to the previous article on reducing      John is far from lazy, inconsiderate, and      The goal of stress management is a
stress, and I’ve been stressed about it       dishonest. I am always honored to include      reduction in overall stress, not its elimi-
since. I made a promise to the editor ear-    his contributions to this newsletter, and I    nation. In fact, stress in limited
lier this year that I would not miss          hope he knows how much we all appreci-         amounts can be good for you. It is moti-
another deadline, and my behavior did         ate his forthrightness and self-awareness!)    vating, helps make changes, and might
not match the expectation I established            While the level of shame and guilt I      even propel us to better things in our
for both of us.                               felt over the incident may not have been       lives—if we act.
     The source of my stress is just that:    as severe as this short tale implies, I did         The following are simple tips for
the incongruence between reality and          fall into the trap of producing my own         managing our thoughts and stressful
my perception of what reality should be.      stress based on common assumptions we          feelings and being kinder to ourselves.
Not meeting the previous deadline set in      all make about how life is supposed to         Try them all and then choose your
motion a series of thoughts, leading to a     unfold and how we are supposed to              favorites.
set of conclusions, all of which created a    behave. The most common assumption             • Deep breathing: The trick here is to
perception of reality; a reality where the    leading to stress is the belief that we have   hold each step for a count of four.
editor had learned that I was the lazy,       to be perfect, that good people don’t          Breathe in for a count of four, hold for
inconsiderate, and dishonest person I         make mistakes. Even knowing that no            four, then breathe out for four. Repeat
feel I am at times.                           one is perfect and we don’t expect others      10 times.
     Whether or not she actually felt that    to be, we seldom allow ourselves the           • Visualization: Think of a place that
way is not relevant to my stress level        same courtesy. Yet we focus on our per-        relaxes you, and take yourself there. Feel
because my reality said she did. And          ceived imperfections, then guilt sets in       the wind on your face, the sun on you
because she felt that way about me, I was     and we’re off to the races.                    skin, or the cold, fresh air on a snow-
shamed and couldn’t call to explain and            The solution: The best advice I can       covered slope. Try this while doing the
apologize, which just fed the cycle of        offer is to act! The stress will remain        deep breathing.
stress because professional people are        until you do something about it. In the        • Keep a journal: Write out your stress-
                                              present case, making a phone call to                                  Continued on page 50
supposed to call (i.e., another expecta-

                                                                                                                              PAGE 49
          THE TEXAS PROSECUTOR




Continued from page 49
                                                                                           VICTIM ASSISTANCE
                                                                                    By David Finkelhor, Ph.D.
ful thoughts. The act of writing helps                                              Director, Crimes Against Children Resource
many to focus and get to the real issues.                                          Center and professor of sociology, University
• Count backwards from 10, slowly.                                                of New Hampshire
This causes a shift in focus and keeps                                         and Charles Putnam, J.D.
you from dwelling on the stressors. To                                    Research Associate Professor of Political Science,
enhance the result, visualize each num-                       University of New Hampshire, and former chief of homicide pros-
                                                              ecution, New Hampshire Office of the Attorney General1
ber, letting each one fill your vision.                       Reprinted with permission from the APRI
This exercise is especially effective when
you’re feeling angry.
• Laugh: Use humor to lighten the
mood.
                                             Protecting the privacy of
• Progressive muscle relaxation: Start
with your head and neck. Tense them as       child crime victims
tight as you can, count to three, then
relax to the count of three. Repeat this
                                             Shielding kids from media scrutiny and other intrusions
procedure one muscle group at a time,        on privacy can go a long way toward healing.
ending at your feet. Then imagine the
                                                                                           fear about publicity contributes to this

                                             O
stress flowing out of your toes.                        ne of the harms crime victims
• Talk: This one may be the best in cer-                face is the possibility that       cannot be confirmed based on current
tain situations. Just talking about the                 many other people will find        scientific evidence. Some of the research
way you’re feeling will reduce or elimi-     out about their experience through            might be read as suggestive that publici-
nate the stress.                             widespread media publicity. Such con-         ty or fear of publicity contributes to
                                             cerns are most obvious in the case of sex     harm. For example, victims with greater
“The greatest mistake you will make in       crimes, but many non-sexual victimiza-        levels of shame and more negative self-
life is continually fearing that you will    tions cause embarrassment as well. For        perceptions related to the offense tend
make one.” — Elbert Hubbard                  children, these concerns can be particu-      to be more badly affected by their vic-
                                             larly acute, in part because children are     timization.2,3 Children involved in cases
                                             so sensitive about their reputations, and     that drag on over a longer period of time
                                             in part because children have little          tend to recover more slowly.4
                                             power to control and counteract infor-        Nevertheless, this research does not
                                             mation disseminated about them. Fears         specifically implicate publicity as a
                                             about their reputation and privacy are        source of trauma for victims.
                                             likely major reasons why so many chil-             Nonetheless, there are sound rea-
                                             dren do not disclose victimizations to        sons to believe that publicity or fears
                                             the police or even to their own families.     thereabout cause harm to juvenile crime
                                                  Although the traumatic impact of         victims. Embarrassment and shame have
                                             crime victimization has been extensively      been established as two sources of trau-
                                             studied, the impact of publicity and          ma for children in the wake of victimiza-
                                             anxiety about publicity on victims has        tion.5 These emotions arise in part out
                                             not. It is well established that crime vic-   of victims’ concerns about the percep-
                                             timization frequently results in psycho-      tions other people will have about them.
                                             logical harm, but whether publicity or        Their intensity is arguably related to the
  PAGE 50
                                                                                             JANUARY/FEBRUARY 2005



number of potential people whom a vic-             The policies are not systematic.        court filings;
tim can imagine might have these per-         Many cover only sex crimes. Sometimes        • a broad list of crimes beyond sex
ceptions. In other words, it can be           even attempted sex crimes are consid-        crimes for which identifying informa-
hypothesized that crime victims will feel     ered outside the scope of the ethical pol-   tion will be protected, including assaults
more embarrassment and shame if many          icy.                                         and family and child welfare offenses;
people know about the criminal inci-               The policies only cover victim          • provisions for defense counsel to
dents affecting them.                         names. Sometimes stories include the         obtain information on identities of vic-
     Secondly, when more people know          names of close family members, the           tims and witnesses that include require-
about a particular painful event, it          addresses of the children, and other         ments not to disclose this information;
increases the number of potential             information that would easily allow the      • prohibitions on law enforcement per-
sources of reminders about the trauma.        identification of a victim by anyone with    sonnel, police, prosecutors, prosecutors’
For example, when a crime is publicized,      even casual knowledge of the child or        staff, and court administrative personnel
more people might mention the episode         neighborhood.                                from placing victims’ names and identi-
to the victim. Children recover more               The policies have loopholes. If the     fying information in the public domain;
slowly from trauma when frequently            name of a child has already appeared in      • amendments to public records laws so
reminded of it and when circumstances         the press because of other circumstances     that relevant portions of investigative,
discourage them from moving beyond            (for example, in a missing child report),    prosecution, and court records identify-
the victim role.6 Finally, research on vic-   then the child will often be named in        ing child victims remain confidential
timization and bullying suggests that a       conjunction with the crime when it is        after the disposition of the criminal case;
past history of victimization and a repu-     discovered. Similarly, if one outlet dis-    and
tation as a victim sometimes cause chil-      closes the name, frequently others will      • adoption of a variety of enforcement
dren to be targeted for further hazing,       do so too, in spite of their policies.       measures to encourage compliance rang-
exclusion, and victimization.7 So while                                                    ing from contempt and referral to licens-
there is no strong research yet, there are    Toward model state statutes                  ing bodies to criminal sanctions for will-
reasons based on trauma theory and            Generally, U.S. law does not allow pro-      ful violations.
common intuition to believe that pub-         hibitions on the publication of truthful          Ironically, when children are victim-
licity may harm child crime victims.          information in the public domain. Some       ized by other children, the widespread
Enhancing the privacy of juvenile vic-        countries have laws banning the publica-     state statutes that protect the privacy of
tims may help minimize the harm of            tion of the names of and other identify-     juvenile offenders generally work to pro-
crime victimization from the trauma,          ing information about victims even after     tect the privacy of juvenile victims too.
and increase their willingness to report      the information has fallen into the pub-     Unfortunately, children victimized by
crimes.                                       lic domain. Such laws generally have         adults do not currently benefit from as
                                              been held unconstitutional in the            much privacy protection as their juve-
Why media self-regulation                     United States because of strong First        nile offender counterparts do.
is insufficient                               Amendment traditions.9                       Law enforcement policies
Many newspapers and broadcasters have              Several states have erected barriers    Whatever the nature of state statutes
voluntary ethical policies intended to        and protections to ensure that victim        concerning crime victims, police offi-
protect the identities of child victims.      names and personally identifying infor-      cers, victim advocates, and prosecutors
There are many problems with these            mation do not fall into the public           can typically do a great deal to advise
policies, however, that make them insuf-      domain during investigations, pretrial       victims and their families and prevent
ficient to fully protect child crime vic-     litigation and trial.10 Selected compo-      many unwanted and unnecessary
tims from the harms of publicity.             nents of these statutes11 include the fol-   breaches of privacy. Officials can take a
     The policies are not universal. A        lowing:                                      variety of steps to help protect crime vic-
few newspapers even have affirmative          • a right for child victims and witnesses    tims and their families from damaging
policies to disclose victim names whatev-     to be identified by a pseudonym in           publicity:
er the age or crime.8                         police records, charging documents, and                     Continued on the back cover

                                                                                                                         PAGE 51
Continued from page 51                       • request closed evidentiary hearings                      sive experiences and depression. Journal of Abnormal
                                                                                                        Psychology, 1995. 104(2): p. 277-285.
• provide written materials and give         where there is evidence that open hear-
informal briefings to victims and fami-      ings are likely to injure a child; and                     6 Runyan, Everson, Edelsohn, Hunter and Coulter,
                                             • develop protocols to train investiga-                    Impact of legal intervention on sexually abused chil-
lies about the kinds of publicity that can                                                              dren. Journal of Pediatrics, 1988. 113: p. 647-653.
occur, the consequences it can have,         tors, prosecutors, and victim advocates
ways of preventing it, and crime victims’    in these and other steps to enhance vic-                   7 Ross, Childhood bullying, teasing, and violence: What
                                             tim privacy.                                               school personnel, other professionals, and parents can
rights with regard to the media;                                                                        do. 2nd ed. 2003, Alexandria,VA: American Counseling
• ask victims, witnesses, and families                                                                  Association.
about their concerns regarding publicity;    Conclusion
                                                                                                         8 Kaiman, Shelton paper names names in sex assaults,
                                                                                                        in The Seattle Times. 2003: Seattle, WA. p. B1.
• decline to disclose identifying informa-   Although more research is needed, there
tion about victims and witnesses to          are many reasons to believe that publici-
reporters without the victims’ consent       ty may be harmful to child crime vic-                       9 Florida Star v. B.J.F., 491 U.S. 524 (1989) (civil damages
                                                                                                        award, premised on violation of state statute, against
                                                                                                        newspaper for publishing name of rape victim uncon-
unless legally required to do so;            tims. State statutes that enhance privacy
• educate journalists who cover police       protections for child crime victims can                    stitutional where reporter lawfully obtained victim’s
                                                                                                        name), Cox Broadcasting Corp v. Cohen, 420 U.S. 469
                                                                                                        (1975) (civil damages award against television station
and court matters about the value of         be enacted. In the meantime, there are a
protecting the victim’s privacy;             variety of informal measures that police                   for broadcasting name of rape-murder victim held
• protect victims and families from hav-     officers, victim advocates, and prosecu-                   unconstitutional where station had obtained name
                                                                                                        from courthouse records), Oklahoma Publishing Co. v.
                                                                                                        Oklahoma County District Court, 430 U.S. 308 (1977)
ing to confront reporters and photogra-      tors can take to enhance the privacy of
phers by arranging for them to wait for      child crime victims.                                       (court’s pretrial order enjoining news media from pub-
                                                                                                        lishing name or photograph of 11-year-old juvenile
                                                                                                        delinquent held unconstitutional where reporters had
court proceedings in non-public areas of
the courthouse and arranging for them        Endnotes                                                   been allowed to attend delinquency hearing), Smith v.
to use private entrances and exits from      1 Please note: For the purposes of compliance with         Daily Mail Publishing Co., 443 U.S. 97 (1979) (indictment
                                             Section 507 of PL 104-208 (the “Stevens                    of newspapers for violating state statute forbidding
the courthouse if they prefer to avoid       Amendment”), readers are advised that the funds for        publication of names of youth charged as juvenile
reporters and photographers;                 this program are derived from federal sources, (U.S.       offenders without prior written approval of the juve-
                                             Department of Justice).                                    nile court held unconstitutional where newspapers
                                                                                                        obtained name of juvenile from witnesses, police and
• use pseudonyms instead of actual
names in reports, charging documents,        2 Andrews, Bodily shame as a mediator between abu-         prosecutors in a publicly accessible document).
and other documents filed in court           sive experiences and depression. Journal of Abnormal
                                             Psychology, 1995. 104(2): p. 277-285.                      10 Putnam and Finkelhor, Mitigating the impacts of
                                                                                                        publicity on child crime victims and witnesses, in
where local procedure allows;
• negotiate appropriate protective orders    3 Mannarino and Cohen, Abuse-related attributions          Unpublished Manuscript. 2004, Crimes against Children
with defense counsel establishing proce-     and perceptions, general attributions, and locus of con-   Research Center - University of New Hampshire:
                                             trol in sexually abused girls. Journal of Interpersonal    Durham, NH.
                                             Violence, 1996. 11(2): p. 162-180.
dures for identifying victims and safe-
guarding personally identifying informa-                                                                 11 For information on state statutes addressing this
tion about them;                             4 Runyan, Everson, Edelsohn, Hunter and Coulter,           issue, contact the National Center for the Prosecution
                                             Impact of legal intervention on sexually abused chil-      of Child Abuse at 703/549-4253, or online at
• inform the court about the privacy
                                             dren. Journal of Pediatrics, 1988. 113: p. 647-653.        w w w. n d a a - a p r i . o r g / a p r i / p r o g r a m s / n c p c a /
needs of child victims, families, and wit-                                                              ncpca_home.htm.
nesses;                                      5 Andrews, Bodily shame as a mediator between abu-



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