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             FOR                     THE
      Journal of the Texas Crlmnal Defense Lawyers Assoctatlon
                                                                 DEFENSE                 VOLUME 21 NO 7




                                                                       Catherine Greene Rurllett
                                                                  rector, ~dvahcedCriminal Law Course
                                                                            Houston, 1992
                                                                                FOR       TH
    O 1992 TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION




columns    6 President's Column
              The Samurai of Our Profession by Gerald Goldstein
              In spite of the image of the criminal defense lawyer, there is no higher
              calling than defending the c~tizen accused.

           8 Editor's Column
              The Rodney King Trial: The Jury is Still Out o n the
              Networks -Part 2 by Kerry P. FitzCerald
              Part 2 of how the television networks distorted the Rodney King incident.

          10 In And Around Texas
              The Texas Legislature and the Punishment Standards
              Commission byJohn Boston
              Two virtually insurmountable problems facing the PSC, and come
              December, the Texas Legislature

          22 Significant Recent Decisions by Catherim Gmene Burnett
             The second installment o recent cases heard by the Texas Court of Criminal
                                     f
             Appeals -Trial Issues.

          29 Granted Petitions for Discretionary Review
          30 The Federal Corner by F.R. '!EzickNFile.s
          31 Federal Impact Decisions by Charles W. Blau
iEFENSE
                                            VOLUME 21, NO. 7




        Features   12 How to Use and Understand the Autopsy Report
                      by Dr. Jeffrey Barnard, M.D.
                       A point-by-point walkthrough by Dallas County's Chief Medical Examiner.

                   14 Time to Win the War by Knox Jones
                      Why the current strategies in the "War on Drugs" aren't working.

                   15 Parole Revocations in Texas -Part 2
                      by Willtarn T.Habern and Helen Copitka
                       How the Texas Parole Board lost control of parole revocation procedures
                       and suggestions to return fairness to the system.

                   17 Burning Down the Woodshed; Presenting Evidence
                      Without Witnesses - Part 2 by Judge \Vu//acc?
                                                                  Botut?run
                   19 Search and S e h e Under State and Federal Law -
                      Part 6 by Jade MafieMeeker

    -   8   -
    News            5 Continuing k g a l Education
                   47 Publications
                                   VOICE F O R THE DEFENSE


          EDITORS                                                     DIRECTORS
                                       Cecil W. Bain, San Antonio              Chuck Lanehart, Lubbock
   Editor, Voicefor the Defazse        Nancy B. Barohn, San Antonto           Jim E. Lavine, Houston
   FitzGerald, Kerry P.-Dallas         Roy R. Barrera, Sr., San Antonio        Randy T. Leavitt, Austin
       Editor, '"Significant           Tom Berg, Houston                       Peter A. Lesser, Dallas
        Dmsions Report"                Webb Mard, Paris                        Bruce A Martin, Wlch~ta   Falls
   Bumett, Catherine Green*           Jeff Blackburn, Amarillo                 Cadton McLarty, Lubbock
             Houston                   Betty Blackwell, Austin                John H. Miller, Jr , Sinton
                                      Stan Brown, Abilene                     Rod Ponton, El Paso
                                      Charles E. Chatman, Sherman             Robert A. Puce IV, San Antonio
                                      Mary E Conn, Houston                    George Roland, McKinney
                                      David Cunningham, Houston               James C. Sabalos, Houston
 EDITORIAL BOARD                      Mark G. Daniel, Ft. Worth               Kent Alan Schaffer, Houston
                                      F.R. "Buck" Files, Tyler                Jack V. Str~ckland, Fort Worth
            Chairman                  Jan Woodward Fox, Houston               Robert Gregory Turner, Houston
   Piles, F.R. uBuck,Jr.-Tyler        Michael 1'. Helskell, Fort Worth        iMartin Underwood, Canstock
                                      Robert C. Hinton, Dallas                Kyle Welch, McAllen
         Vice Chairmen                Rohert 3. Hirschhorn, Galveston         Royce B. West, Dallas
           Jones, Knox                Kelt11 E. Jagmin, Dallas                Wllltarn A. White, Austin
 Past President 1986-87-McAllen
      Miller, Judge Chuck-
    Court of Crminal Appeals                              ASSOCIATE DIRECTORS
  Gist, Judge Larry-Beaumont
                                      Scott M. Anderson, Dallas               Daniel Dan) W. Hurley, Lubbock
             Members                  Gary J. Cohen, Austin                  J. Craig Jett, Dallas
    Mison, William P.-Austin         J a m e s 0 Darnell, El Paso            E. Dale Robertson, Brownsrille
      Blackwell, Betty-Austin        J. Pink Dickens, Plainview              Barney W. Sawyer, Paris
     Blau, Charles W.-Dallas         Jeff Haas, Tyler                        John R. Smith, Center
    Botsford, David L.-Austin        John Hrncir, San Antonio                J. Gary Trichter, Houston
      Brown, Cliff-Lubbock
   Burnett, Judge Jay-Houston
   Butts, Charles+       Antonio                              PAST PRESIDENTS
  Clinton, Judge Sam Houston-
     Court of Criminal Appeals       Richard Alan Anderson                   Robert D. Jones
 Gandy, Judge Marshall-Dallas        Dallas (1991-1992)                      Austin (1980-81)
       Hannah, John-Tyler            Tim Evans                               Vincent Walker Perlni
   Heiskelf, MikeEort Worth          Fort Worth (19M-191)                    Dallas (1979-80)
Hirschhorn, Robert B.4alveston       Judge J.A. "Jim" Bobo                   George F. Luquette*
  McDowell, Judge Pat-Dallas         Odessa (1989-lW0)                       Houston (1378-79)
  Morris, E. G "Gerry"-Austm         Edward A, Mallett                       Emmett Colvin
       Ponton, Rod-El Paso           Houston C1988-89)                       Dallas (1977-78)
    Rawttscher, Jack-Houston         Charles D. Butts                        Weldon Holcomb
  Seymore, Professor Mnlinda-        San Antonio C1987-88)                   Tvler (1976-77)
Dallas/Fort Worth School of Law      Knox Jones                              C; David Evans'
    Steele, Professor Walter-        McAllen (198687)                        San Antonio (1975-76)
        SMU School of I a w          Louis Dugas, Jr.                        George E. Giikerson
 Stlickland, Jack V.-Port Worth      Orange (1985-80                         Lubbock (1974-75)
   Sweeney, John-Fort Worth                   .
                                     CliftonL "Scrappy"Holmes                Phil Burleson
     Thomas, Judge Linda-            Longview 0984-85)                       Dallas (1973-74)
     Court of Appeals, Dallas        Thomas G. Sharpe, Jr.                   C. Anthony Friloux,Jr.
    Tomko, Edwin J.-Dallas           Brownsvllle (1983-84)                   Houston (1972-73)
White, W~lliam "Bill"-Austin
                 A                             .
                                     W o r d W Brown                         Frank Maloney
                                     Lubbock (1982-83)                       Austin (1971-72)
                                     Charles M. McDonald
                                     Waco (1981-82)


   Executive Director                                               1992-93 OFFICERS
     John C. Boston
    Attorney/Editor                                 President                     Second Vice-president
      Susan G o w n                     Gerald H. Goldstein--San Antonio       Bill Wischkaemper-Lubbock
 AdministrativeAssistant                        Presideut-Elect                     SecretaryTreasurer
    Lillian Summacell                       David R. Bires-Houston              David I Botsford-Austin
                                                                                         .
 Membership Secretary                         First Vice-President            Assistant Secretary/Treasurer
  Shannon M. McIntosh                             .
                                          Ronald I Goranson -Dallas                  E.G. "Geny" Morris
                                                       VOICE F O R THE DEFENSE




    1       CONTINUING LEGAL EDUCATION                                                                                                      1I
                           Tentative Seminar Schedule 1992-1993

November l9-20,1992                                      February 10-14,1993                           March 7-12,1993
CDLP Skills Course                                       TCDLA \Vinter Trip                            CRTMINAL TKIAL ADVOCACY
DoubleTree Post Oak                                      Inn at Aspen                                  INSTITUTE
Houston                                                  Aspen, CO                                     Sam Houston State University,
                                                                                                       Criminal Justice Center
    December 10-11,1992                                                                                Huntsville
    Capital Murder Seminar                                     2526,1933
                                                         Feb~ary
    \Vorthington Hotel                                   TCDWNACDL Trial of a Drug Case                March, 1993
    Fort Worth                                           (DoubleTree at Allen Center)                  TCDLA Board Meeting
                                                         Houston                                       Austin
December 12,1992
TCDLA Board Meeting                                                                                    April 22-23,1993
CDLP/TCDLA Executive Committee                           February 27,1993                              CDLP SKILLS COUKSE
Meetings                                                 TCDLA Board Meeting                           Denton
FRIENDS Board Meeting                                    TCDLMCDLP Executive Committee
                                                         Meetings                                      May 20-21,1993
January 14-15,1993                                       FRIENDS Board Meeting                         CDLP SKILLS COURSE
CDLI' Skills Course                                      TCDLEI Board Meeting                          Midland
Westin
El Paso                                                                                                June 17-19,1993
                                                                                                       The Honorable M.P. "Rusty"Duncan, I11
                                                                                                       6 t h A n n u a l TCDLA ADVANCED
                                                                                                       CRIMINAI, LAW SHORT COUKSE
                                                                                                       San Antonio

                                                                                                       June 18,1993
                                                                                                       TCDLA President's Ball
            Towics include:
                                                                                                       June 19,1993
                                                                                                       TCDLA Annual Meeting
                                                                                                       TCDLAKDLP Executive Committee
                   A    Minorities and noncithem underattock-Cmrlance Crooker. Portland. O
                       A P e k e mkonduct and 1983 octiom-Stephen
                         A Under attack from the medla:
                                                                                          R
                                                                    Yogmon, lor Angeles. CA        I   Meetings
                                                                                                       FRIENDS Board meeting
                                                                                                       TCDLEI Board Meeting
                                  Mwe thonGenera1 Nodego--David Lewls. New Yolk, NV
                                  A winning your core on the facts-Juanilo Brooks. Son Dlego. CA       The Plaza
            Acapulco, Mexico
            November 1 1-15,1992                                                                       July 15-16,1993
                                                                                                       CDLP Skills Course
                                                                                                       \Vichita Falls

I       "     -            "" "
                                   ~ i r n k sooce. reserve now1
                                             d                                                         August 19-20, 1993
                                                                                                       CDLP Skills Course
                                                                                                       Tyler


                                     JOlJRh'a OF THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION
   1701CL fo~'t/~eDeferzse (ISSN 0364-2232) is published regularly by the Texas Criminal Defense lawyers Association, 600 W. 13111, Austin,
Texas 78701, (512)478-2514, FAX No. (512) 469-9107. Annual subscription rate for members of the association is $100, which is included
in dues.
  All articles, contributions andadvenising inquiries should be addressed to the editor, Kerry P. FitzGerald,Attorney at Law, TwoTunle Creek
Village, Snite 1700 Dallas, Texas 75219-4537, (214)528-0044.
                                                                                                                                        C
                  V O I C E FOR THE DEFENSE

                                                 Nearly twenty-five yeals ago Retired
                                              United States Supreme Court Justice
                                              Tom Clark returned to his native Texas
                                              on a mission to recruit warriors in +e
                                              social revolution which was being cre-
                                              ated by the Warren Court. Justice
                                              Clark's message to those young law
                                              students was clear: "If you want to
                                              serve your profession and make a dif-
                                              ference in this world, t h a e is no higher
                                              calling than defending the citizen ac-



The Samurai
                                              cused of crune." It was springtime in
                                              many of our professional careels and
                                              citizen iighb were blossoming flower-
                                              like from their underground abode dl
                                              around us.
                                                 If you haven't noticed lately, you and



  Of Our                                      I, Brothels and Sisters of the ctiminal
                                              bar, have since become the stepchil-
                                                     of
                                              d ~ e n our profession.
                                              CorporationsHave More Discovery
                                              Rights Than Do Citizens
                                                 Over the past severaltenns the United


 Profession                                   States Supreme Court has held that we
                                              can be compelled to pmv~de        discovely
                                              that even the prosecution is not re-
                                              quired to produce, forthe expies reason
                                              that neitherour clients nor their lawyers
                                              can be trusted. Tuyloru.Il/inois,448 US.
                                              400 (1988).
       by Gerald H. Goldstein                    '"One o the purposes of the discovery
                                                         f
                                              rule itself is to mmimize the risk that fabri-
                                              cated testimony wdl be believed. Defen-
                                              dants who are willmg to fabr~cate defense
                                                                                 a
                                              may also be willing to fabricate excuses for
                                              failing to comply with a discovery require
                                              ment . . . A dishonest client can mislead an
"By demanding fair treatment                  honest attorney, and tl,et8 ale occasioras
                                              ~ul~en altorrze~ m m a that the duly o j
                                                     an           a
                                              loyally to the client outzmigbs elernentnty
                                              obligatrom to ?becourt."
for the least of us, we do our                   The Court there held that a citizen
                                              could be precluded from callmg a de-
                                              fense witness who he had fafled to list
country and our profession                    in discovery prior to tmal, notmg that:


proud."
                                                       VOICE F O R T H E DEFENSE

     "It is . . . reasonable to presume that thc!I-e    the individual nor his or her defender               pulous prosecutors?
 is something suspect about a defense n'it-              can be trusted. Rule 804(3) of the                 Not Such a "New Order" After AU
 ness who is not identified until after the 11111       Federal Rules of Evidence expressly                    Many politicians' new found criticism
 hour has passed." Tajdoru. Illinois, SLIP!     pa.     provides that:                                       of the legal profession is not so new;
    This is the same Supreme Court tha t                    "la1statenlent. . .offered to exculpate the      nor is their "New Order" of things. One
 held in Wfefltbe>fo,d u. Bllrsej~, U,S .429            accusedis not admissibleunless corroborat-           of the first concerns addressed by the
 545 (1977) that "thel-e is no gene1            al      ing circunistancesclearly indicate the trust-       legal "scholars" of the fledgling Third
 Constitutional right to discove~yin a                  worthiness of the statement."                       Reich was a n attack upon the adversary
 criminal case," and more to the poi1It,                    Even the Supreme Court's proposed               system. As explained by Heinrich
 that "it does not follow fl-on1the pro1li-             mle, that "Pal statement tending to ex-              Henkel in 1939:
 bition against concealing evidence f a-                culpate the accused is not admissible                  "By freeing ourselves from the notion of
 vorable to the accused that the prosecll-              unless corroborated," was deemed by                  parties to a lawsuit, we free ourselves from
 tion tilust reveal before trial the names              Congress to be too permissive to pro-               the liberal notion of a trial as a codlict of
 of all witnesses who will testify unf a-               tect against the feared abuses by those             aims, an unleashing of a struggle to find that
 vorably." Irfeatlmford u. ~ u , s & 4:29               accused and those who would defend                         W
                                                                                                            truth. \ e thusbecomefreetosetagainstthe
 US. 545, 559 (1977).                                   them.                                               liberal system of opposing forces a new
    \Vhv is it "reasonable to assutile" th at               "It is believed . . . that statements of this   order, in which the participants have an
 only "defense witnesses" may be pro1le                 type tending to exculpate the accused are           unanimity of aim." Ivluller, Ingo, Hitlerk
                                                        more suspect and so should have their                                           7e
                                                                                                            Jlrsrice, TTle Corirrs of 7 1 Third Reicb,
 to fabricate testinlony, o r that defense
                                                        admissibility conditioned upon some fur-            Haward Press, 1991.~
 lawyers are more prone to suborn same?
    Congress has dep~ived         citizens,who:se       therprovision insuringtn~sm,orti~iness.     The     Time to Polish Our Image
                                                        proposal in the Court Rule to add a require-           Justice Clark was right. You brothers
very life may be at stake, of the discove lY
                                                        ment of simple corroborationwas, however,           and sisters of the criminal bar are the
considered necessaty for a corporaticm                  deemed ineffective to accomplish this pur-          Samurai \Vario~s of our profession.
to receive a fair trial when it has only itS            pose since the accused's own testinlony             You haveset yourselfagainst all odds to
pocketbook at issue. The Suprenle                       mightsufke whilenotneces;arilyhcreashg              defend thedowtitrdden, theoppressed,
Court's original Rule [16(a) (1) (E) of tl ie           the reliability of the hearsay statement."          and the unpopular. Too often the
Federal Rules of Criminal Procedu re                    Notesof Committeeon theJudicialy,House
                                                        Report No. 93-650.                                  public, the media and even the courts
(which provided for the disclosure 3f
                                                                                                            identify the lawyer with the alleged sins
the prosecution's witnesses)l, was "dte-                   How can oul- Rules of Evidence be
                                                        deemed equitable when they provide a                of those w e have sworn to defend. By
leted" by Congress because of the fe.           ar
                                                                                                            demanding fair treatment for the least
of intimidation posed by accused cil:i-                 one-way street for the admissibility of
                                                        incriminating evidence against an ac-               of us, we d o our Count~yand our
zens atid their counsel.1
                                                        cused, while not affording the citizen a            profession proud. It is a noble cause,
   How can a system be deemed fair th at
                                                                                                            and it is time we sought to d o something
provides litigants the right todeposition S,                                       to
                                                        similat- oppo~tunity offer similar evi-
                                                        dence in an effort to exculpate himself             about our image, both within our pro-
intenogatories and I-equestsfor admis-
                                                                                                            fession and with the public in general.
sions so long as they are inanima~              te      o r herself!
                                                           Morerecently, t11eSuprenle C o u ~has     t      Spread the word in your home com-
objects fighting ovet- the almighty dc,I-
                                                        ~uled     that our clients can now be de-           munity. Come join with your fellow
lar, while depriving its citizens of evc!n
                                                                                                            TCDLA members this legislative session
                        tools
the ~ u d i m e n t a ~ y of discove~y, :h  suc         prived of our counsel andadvice during
                                                       trial because of the fear that we might              in Austin a s we not only take o n this
as a list of the witnesses against the1m
                                                                                                            season's draconian measures, but put
when their very life and liberty are :at               suborn pejiuy. Holding that a defen-
stake?                                                 dant could be precluded from consulting              fo~ward affirniative program of our
                                                                                                                       an
                                                                                                            own, designed to strengthen the rights
Rules of Evidence are Not a Tmr>-                      with his own attorney during a trial
                                                       recess between that citizen's direct                 of every Texan. Your Legislative
Way Street
                                                                                                            Committee l ~ a s  already begun setting
   The Fede~al        Rules ofEvidence provic le       testiniony and the prosecutor's cross-
                                                                                                            our plans in motion. If you would like
that a different standard is to be applied             examination, the Supreme Coutt noted
                                                       in Perryu. Leek, 448 8,s.-, 102L.Ed.2d.              to participate 01-have ideas for our
to the adnlission of certain kinds r,f
                                                                                                            legislation program write to me, or our
evidence by an accused citizen, pn=             .      624 (19891, that:
                                                           "lllt is simply an empirical predicated of       legislative cliail-persons:
misedupon the assuniption that neithc?I-
                                                       our system . . . that cross-examination of a
                                                       witness who is uncounselled between di-                David Botsford - Chair, 100 Congress
     Gerry Goldstein is the president of               rect examination and cross-examination is            Ave., Suite 1700, Austin, Texas 78701,
  TCDLA for 1992-93. He received his                   more likely to lead to the discovery of truth        (512) 476-9121; M a ~ yCon - Co-Chair,
  B.U.A. degree from Tulane University                 than is cross-examinationof a witness who            4410 Montrose Blvd., Houston, Texas
                               the
  and his I.L.B. degree fcon~ Univer-                  is given time to pause and consult with his          77006, (714) 957-1342; Mike IIieskel -
  sity of Texas. His practice is both state            attorney . . . . 'Once the defendant places                                      Fort
                                                                                                            Co-Chair, 600 Texas S~I-eet, \Volth,
  and federal, trial and appellate. Gerly              himself at the veiy k a r t of the trial process,    Texas 76102, (817) 877-5321; Rennie
  is an Adjunct Professorat the University             it only comports with basic fairness that the
                                                                                                            Rap - Co-Chair, 3103 Bee Caves Rd.,
  of Texas School of law. He is the first              story presented on direct is measured for its
  vice president of the National Associa-              accuracyandcompletenessby uninfluenced               Suite 222, Austin, Texas 78746, (512)
  tion of Criminal Defense Lawyers. He                 testimony on cross-examination."                     328-1312.
  has lecwred for TCDLA and the State                     \Vhy are criminal defense lawyers
  BarofTexasinnumerousCLE programs.                    any more likely to attemptto "influence"
                                                       their clients or witnesses than unscn-
                 V O I C E FOR THE DEFENSE

                                             The Unceremonious Removal of
                                             Judge Bernard Kamins
                                                During the litigation of the change of
                                              venue motion, a second and equally
                                              troublesome event occurred, which ul-
                                              timately prompted a vodferous outcry
                                              from the defense.
                                                After the defense petitioned the Court
                                              of Appeal to review Judge Kamins'



The Rodney                                    decision denying a change of venue,
                                             Judge Kamins took it upon himself to
                                              write the court directly, stating the trial
                                              judge's intent to move the venue not-
                                             withstanding his prior announcement
                                              that in the judge's opinion the h i d



King Trial:
                                              should not be moved. This letter
                                              prompted a backlash from the district
                                             attorney's office in the foim of press
                                             conferences andreleases. A court hear-
                                             ing was scheduled which led to evi-
                                             dence of further judicial indiscretions.

The Jury is Still Out on                        As the hearing opened, the prosecu-
                                             tor, constrained by his ethical obliga-
                                             tions and a sense of honor, ievealed an
                                             ex p a w communication which had
     the Networks                            taken place involving the trial judge:
                                                "MR. WHITE: We feel it is our obliga-
                                             tion to inform defense counsel of any
                                                              we
                                             con~munication have with the court.
                                                And there was a communication yes-
                                             terday afternoon fionl one of the court's
                                             law clerks, who came down to our
                                             office to, in his words, deliver a nles-
                                             sage from the judge, to either Alan or
              Part 2                         myself.
                                                Alan and I were both in a meeting
                                             until 5:30. And I believe this occuired
                                             at approximately 500.
"The public needs to hear less                  And the law clerk, I believe his name
                                             is Duane spoke with our law clerks,
                                             Rob Sheldon and Michael Carter, and
about the constitutional right               basically said that the judge bad a
                                             message for us.
                                                The message was relayed to our two
of the freedom of the press
and to see more about the re-
sponsibility and integrity of the
press."
                                               V O I C E F O R THE DEFENSE

 law clerks in my office.                       convey to the district attorneys, be-            Actually, according to coil11 docu-
   The message was basically, 'Dor              cause this came out of what I feel for       ments, both the defense and the pros-
 stay up all night, that the judgesays tru      them. * ' * So I didn't want to be in a      ecution objected to the court's actions
 him, he knows wliat he is doing.'              position of looking like I was going          in conducting its own investigation
   It was also my inforniation that tl-         around the back side of tlie district        outside of coult, particularly as the
 law clerk said he felt strange deliverir       attorney.                                    cou~t    refused to pennit either side to
 this message, and that he didn't kno              So I said three things. Isaid to Duane,   examine what evidence the c o u ~was   t
what the judge was going to do, and 1-          to convey to you, since I couldn't, one      considering.
did not even thinkthis judge knewwh:            was, "Don't panic."                             'Sllis concern was enhanced with the
h e was going to do.                              The second was, "You'll just have to       disclosure that the trial judge had made
   Atid then he went on to say that ti-         tnist nle."                                  an ex parte comnlunication with the
court was dark yesterday because tl;              The third was, '7ust wait until to-        opposing party, without any notice
judge was having a physical.                    morrow before you have any reaction."        whatsoever.
   This informationwas relayed to me;             It was too late. But evelyone I-eacted        Another judge was appointed to hear
approximately 5:25, when I came bac             across the United States before I made       the motion to disqualify. Ultimately,
from nly meeting. And I, in turn, relate       up my mind what I was going to do.            the defense motion was denied.
to my head deputy, Roger Gunsol                   So it was three messages.                     Once again, the defense refused to
who, in turn, relayed it to the assista~          \Vhatever else he said was out of his      surrender. The defense filed a petition
district attorney, Dan Murphy.                 own embellishment. I didn't think that        in the Appellate Court, requesting that
   It was decided at that tinie that w         was improper, since you put hundreds          Judge Bernard Kamins be disqualified.
would inform defense counsel of th             of hours on this, and I didn't want you       The defense also argued in the Appel-
today, o n the record, in front of 111         to fall to pieces without knowing what        late Court that the trial judge liad based
COUlt.                                         all the issues were.                          his factual conclusions about the extent
   So that's what I'm doing at this tim~          I said, "\Vait until tomorrow, Don't       and the effect of publicity in other
   THE COURT: I was at the doctors an          panic. You can t~ustme," the sanie            countiesuponinfonnationthat the judge
overheard some spokesperson from th            thing I would say to the defense.             liad received outside of court fl-om his
district attorney's office make a quicl           I'mnot afraid to take lumpshere to do      law clerk staff. The defense complained
panicked, reaction to the letter, statin       the right thing. I have had the ire of the    that the judge refused defense requests
that, something to the effect, "We ar          Los A~rgeles Times. The district              to have the names of those staff mem-
going to go down fighting", somethin           attorney's ire. And I have had your ire."     bers placed on record or to permit the
similar to DePasquale'swhich commer               The defense was surprised and ap-          defense to call the witnesses.
"We are going to go down fighting o            palled at these "behind the scenes"              Court documents also indicate that
this thing" or something to that effec~        activities of Judge Kamins. Defense           the defense was convinced Judge
   And I was undergoing a physical :           counsel, sharing serious misgivings           Kamins was overly concerned about
the tinie, and wanted to hear what ha          abouttl~e   judge's behavior,fileda motion    the public perception about the job he
come across.                                   to disqualify Judge Kaniins for judicial      was doing and that he intended to make
   So n h e n I called up to find out if 111   misconduct. And for good reason. Ex           a rulingwhichwoultlplacate the people
court of appeal had taken any action,          parte communicationsbetween a judge           and wliichwould favor the prosecution.
said, conveyed to my law clerk t               and only some of the parties have             In short, Judge Kamins, according to
                                               always been considered deplorable,            the defense, "was willing to give them
                                               unethical, and to be avoided at all costs.    (the prosecution) assul-inces that the
     Kerry P. FitzGerald is a graduate         If nothing else, such contacts give the       case would be decided in their favor. in
                                                                                             ~~~~   ~~




   of The University of Texas School of        appearance of pa~riality toward one           secret, by telling them not to panic."
   Law. After sewing as an assistant           party over another, and leave a bad              All the defendants and their respec-
          attorney in Dallas, he entered
   d~strict                                    taste in everyone's mouth. Eve~y      judge   tive counsel joined in this motion to
   private practice.                           knows to avoid that sort of disrepi~table     disquallFy the judge.
     MI. RtzGerald is Board Certfieed in       behavior. Not so, apparently, Judge              In support of the motion to disquallFy
   CriminalLawandiseditorofthe Voice           ICamins.                                      were afidavirs of prejudice for cause
  for the Defense magazine He is a                The defense was concerned that the         filed against the judge. It seems as
            er
  f o ~ n ~ di~ectorof the Advanced
  Criminal l a w Course and former             trial judge was not maintaining an open       though the defense was insulted, to say
  chaiman oftheCrimina1Law Sections            mind in permitting the defense to offer       the least, that the judge was so overly
  of the Dallas Bar Association and the        all relevant evidence concerning the          troubled with the political fallout froni
  State Bar of Texas 0976 and 1983).           change of venue motion. The defense           within thedistrict attorney's office. Some
     He ltas written numelous legal ar-        argued that the trial judge PI-evented  the   defense counsel have been known to
  ticles on Criminal Appellate Prnctice        defense from calling witnesses on the         complain that the type of ex p a t e
  and the Texas Rules of Criminal Evi-         venue nlotion other than an expert            contacts reflected in this case is not
  dence. Most recently he authored an          witness to explain a survey and that the      necessarily infrequent but it is ral-ely
  article on Expert Wstnesses and an           ji~dgehad conducted his own investi-          discovesed by tlie defense.
  article entitled "Criminal Procedure.
                                               gation by utilizing his staff of law clerks      On November 18,1991,the Appellate
  Pretrial, Trial and Appeal," Sorrfb-
   tueslem LawJouml, Vol 45 (Sprmg             to obtain factual infonilation regarding
  1972).                                       publicity on the case in twenty other
                                               zounties.
                          V O I C E FOR T H E D E F E N S E


IN AND AROUND TEXAS
                      I                                          The work of the PSC continues with
                                                              fits and starts. This is not to criticizethe
                                                              members or the staff, but fronl the
                                                              outset the PSC has lacked focus. Sub-
                                                              committeesand adhocgroupshave met


     The Texas
                                                              frequently over the past eight or nine
                                                              months and, In terms of ideas for im-
                                                              provingthe criminaljustice system,have
                                                              come up with some potentially useful
                                                              and effective plans. But, as I see it from


    Legislature
                                                              a personal and crimiid defense per-
                                                              spective, there are two interrelated
                                                              problems of nearly insurmountable
                                                              proportion, which keeps planners and
                                                              policy makers from attacking the proh-


      and the                                                 Iems of prison crowding and rational
                                                              punishments head-on. First, the mul-
                                                              titudes that have been counted by DF.
                                                              Tony Fabelo's Criminal Justice Policy
                                                              Council preclude any sholt-term solu-


    Punishment                                                tion to the prison cr~wding       problem.
                                                              Second, once the PSC has rewritten the
                                                              Texas Penal Code, as required by HB
                                                              93, and submitted it to the Governor
                                                              and the Legislatu~ or about 1 De-
                                                                                     on


     Standards                                                cember 1992, the changes in the Texas
                                                              punishment scheme needed to achieve
                                                              the IaudabIe goal of "tluth-in-senrenc-
                                                              ing" will result in such reduced sen-
                                                              tences that the legislators will have a


    Commission                                                hard time explaining to the vatms how
                                                              they voted for such weak-kneed, limp-
                                                              misted, ant-Texas proposals. An ex-
                                                              ample from Dr. Fabelo's works-in-
                                                              progress is illustrative.
                                                                 The median sentence for aggmvated
                                                              offenders [Art. 42.120 (g),C.C.P.1 in
               byJobla Boston                                 Texas is about 4 8 years. In order to
                                                              doublethis toabout ten years, based on
                                                              current and projected prison resources,
                                                              f e percent (50 %) of the prison popu-
T h e situation appears dismal,                               lation would have to be diverted in
                                                              order to make room for the real bad

and it is bad, but there are still
some optimists among the
cynics.
                                            V O I C E FOR T H E D E F E N S E

guys. When Dr. Fabelo's Criminal Jus-           resentatives of the prosecutors and the       has several advantages, one of which is
tice Policy Council, with the help of           judges (one of the a d hoc gronps I           sonleone to keep an eye on the Con-
district attorneys' offices in the seven        mentioned) and are trying to produce a        gress and the police-state legislation
largest counties, began the 10,000inmate        punishment plan to submit to the I'SC         that gets -
                                                                                                    -
                                                                                                          proposed there. Of a less
study almost a year ago, most believed          for internal debateandultimately afinal       Draconiannahire is the opportunity for
the good doctor would discover that             draft agreed to by the members of the         comnunicationaffdiationaffordsanlonz
                                                                                              ~   ~




many of the 55,000 or so beds in the            PSC and the groups that have interest in      the other state and local crhlinal defense
Texas Institutional Division were being         the criminal justice system.                  assoc:ltions -and in that light: if you
taken u p by nonviolent offenders that              Whether thefinal\\~orkproduct   ofthe     are licensed to practice law in Penn-
could be diverted and thus make room            I'SC will be accepted by the Legislature      sylvania, that state now has mandatory
forthe 3D offenders: dangerous, deadly          without significant amendments, as Co-        CLE(five hours). You can get further
or deranged. Such is not the case. If we        chairs Senator Ted Lyon, and Repre-           information concerning accredited
divelted the hot check writers, joy-            sentative Allen Hightower, will recom-        courses by contacting Jeanne M.
riders, non-confrontational thieves,            mend, isquestionablegiven thefreqnent         Ginsbul-g,Executive Director, PACDL,
possessors of small amounts of con-             grand-standing and demagoguery seen           (215) 566-8250, FAX - 566-8592 or
trolled substances, and any other in-           at the Legislature.                           P.O. Box 189, Lila, PA 19037.
mate that al-guably could be called                                                              By the time .you are I-eading this,
nonviolent to some placeother than the                                                        TCDLAwill have in place a professional
Institutional Division, there would be                                                        liability insurance program of reason-
scant relief in theI~~slil~rtio~?alDiuisio~r.* we diverted
                                                     /'If                                     able cost designed for criminal defense
There would be, in theo~y, reduction
                                  a              inmates($ that a ~ x u a b l y               lawyers (other areas of practice will be
in the "paper ready" inmates in county                                                        covered with a sliding PI-emiumscale).
jails, which stood at over 19,000as this         could be called nonviolent                   TCDLA as to Texas lawyers will receive
is written in late September. And the            to someplace other than the                  a promotional override of 1.5% of pre-
Catch-22 of this is that the relief sought                                                             (as
                                                                                              miun~s will NACDLwhen its national
by the PSC, and others, is to create more
                                                 InstitutuionalDivisioq there                 program is itupleniented early in 1993).
                based
c o m ~ ~ ? ~ r ~ z i t y diversion facilities.  would be scant d i e f i n the               The carrier, Scottsdale (Ariz) Group,
In other words, keep the nonviolent                                                           has theIiighestinsuranceratingpossiWe.
offenders in the county of conviction
                                                 Institutional Division."                     If you need more information call the
where they are now awaiting transfer to                                                       home office.
the I.D. One of the propositions pros-                                                           Eve~ymember get a member and
ecutors and defense lawyers agl-eeon is                                                       Renleniber that dues paid now need not
that funding for state prisoners (felons)           What the professionals,the interested     be renewed until 31 December 1993
should be borne by the state, not the           groups, and members and staff of the          and are not delinquent until 1 April
counties, even if diverted to a cornnu-          I'SC can and should do is draft and           1994. Semper fi. W
nity-basedfacility. Thesituationappears          present the best punishment scheme
dismal, and it is bad, but there are still       they can devise and submit it to the
some optimists among the cynics.                 Legislature and the Governor according         There is 111zrcl1ar~ecdotdeuide~~ce          of
   As many of you know, the defense              to HB 93, but with at least two additional   ~~onuiolent     offenden serving time in
lawyers have been meeting with rep-              provisions; that Texas must come to                             an
                                                                                              Tozuspriso~~s, d certainly there are
                                                 grips realistically and humanely with                      61rt
                                                                                              I~~mdreds, iuhet~          deulirrg zuith these
                                                 juvenile crime; and with the caveat that            f
                                                                                              kinds o ~rlriizbos,   jttst5% zuo~rld overhe
                                                 the desired principle of "truth-in-sen-      2,500 i~mates, diue~sionf which
                                                                                                                  the                o
      JohnBoston has been the Executive          tencing" must be accompanied with the                                          e f f e c ~ the
                                                                                              e u o ~ r l d h a ~ e s c n ~ ~ ~redlrcingo ~ ~
   Director of the TCDU sinceJune 1986.          politically distasteful concept of "hon-                       p~
                                                                                              omzrorudi~~g o b l e m
   From February 1980 until coming to            es~y-in-legislation." In other words, if
   TCDUhewas in general practice of law
   in Austin. Mr. Boston's main areas of         the citizens of Texas want long prison
   practice were criminal defense, real          terms for violent offenders, meaningful
   estate and family law. Also, for the past     rehabilitation for salvageable inmates,
   ten yeas he has been an independent           coninlunity-based diversion programs                     ZIMMERMANN &
   contractor hearing examiner for various       that work, juvenile programs that get
   stateagencies,themostrecent being the         the attention of the young offender                         LAVINE, P.C.
   State Board of Public Accountancy and         before graduation to the center for                  takes pleasure in announcing
   the Texas Department of Commerce.             advanced criminal studies at Huntsville,
   Before enteringne University of Texas                                                              that MICHAEL C. GROSS,
                                                 then the costs must be met and (gasp!!)
   Law School (ID 1975), Mr. Boston
                                                 revenues increased to pay for those                   former judge advocate with
   giaduated from Southern Methodist
   Vnivetsity (BA 1971), and prior to that       Drogranls.                                             the United States Marine
    ie wasapdothlight engineer for Braniff                                                            Corps, has become associated
    kimrays, and a Marine aviator. He               Miscellany
                                                    Being an affiliate of the National
                                                                                                              with the firm.
    etired from the USmR as a colonel in
    1988.                                          4ssociationof Criminal DefenseLawyers
                                         V O I C E F O R THE D E F E N S E



     How to Use and Understand
        The Autopsy Report
                                            byJefley J. Barnard M.D.
                                     Dallas CountyMedical Eraminer's Oflice


I.   Medicolegal Autopsy Report                       c. Alkaline screen                     g. Exit wound
     A. Introduction                                  d. Narcotics                            1
                                                                                             1 . Direction
     B. Terniinology                     11. \Vonnds and Injuries                        3. Rifle Wounds
          1. Cause of death                  A. Firearms Injuries                            a. Description
          2. Manner of death                     1. Gunshot wounds (hand                     b. Entrance wound
          3. Mechanisnis of death                gun)                                        c. Injuries (path)
     C. Organization of Report                        a. Entrance wound                      d. Exit wound
          1. Preamble                                      (1) description of                e. Recovery
          2. External Examination                          defect                            f. Direction
              a. Clothing and items                       (2) location               B. Stab \Vounds
              with body                                   (3) ab~asions                  1. Definition
              b. Hands bagged                             (4) fireanns residues          2. Entrance wound
              c. Lividity and rigidity                b. Path                               a. Length
              d. Genelal external                         (1) perforation vs                b. WVidth
              description                                    penetration                    c. Angles
         3. Evidence of Treatment                         (2) sequential injuries           d. Mal-gins
         (therapy)                                        (3) associated injuries           e. Edges
              a. Tubing                               c. Exit wound                         f. Location
             b. Procedures                                (1) description                   g. Clusters
         4. Identifying features                          (2) location                  3. Path
             a. Scars                                     (3) shored exit wound             a. Perforation vs penetra-
             b. Tattoos                              d. Bullet 1.ecovered                   tion
         5. Evidence of injury (see                       (1) location                      b. Organs injured (se-
         111)                                             (2) caliber - small,              quential)
         6. Internal Examination                          medium, or large                  c. Associated injuries
             a. Body cavities                             (3) jacket vs                 4. Direction
             b. Head (central nervous                    nonjacketed                    5. Defense-type wounds
             systenl)                                    (4) inscription of bullet   C. Incised Wounds
             c. Neck                                 e. Direction                       1. Definition
             tl. Cardiovascular system                   (1) front vs back              2. Entrance wound
             e. Respiratoly system                       (2) right vs left                  a. Features of wound
            f. Hepatobiliar). system                     (3) upward vs down                 b. Serrated knife features
            g. Gastrointestinal system                   wad                            3. Injuries
            h. Genitourinary system                  f. Range of fire                       a. Exsanguination
            i. Endocrine system                          (1) contact                       b. Aspiration of blood
            j. Reticuloendothelial                       (2) close                          c. Air embolism
            system                                       (3) nlediuni                D. Blunt Force Injuries
            k. Musculoskeletal system                    (4)distant                     1. Definitions
        7. Microscopic Exaniination                      (5) indeterminate              2. External injuries
        8. Findings                              2. Shotgun \Vounds                        a. Abrasions
            a. Main cause of death                  a. Description                         b. Conhlsions
            b. Other findings                       b. Gauge                               c. Lacerations
        9. Conclusion                               c . Ammunition                      3. Location of injuries
       10. Toxicology                               d. Entrance wound                      a. Head and neck
            a. Alcohol screen                       e. Injuries (path)                          (1) external exam
            b. Acid neutral screen                  f. Recovery                                 (2) subscalpular region
                                          VOICE F O R THE DEFENSE

               (3) skull fractures             Syndrome(A1DS).                         dead).
               (4) hemorrhages                 2. Manner of death: Thisrefers to     2. External examination
               (5) blzin examination           the circumstances in which the          a. The appearance of the body
               (61 neck                        cause of death occurred. Manner         as fust viewed by the medical
            b. Trunk                           o death is broken down into
                                                 f                                     examiner is d e s a i k d in
               (1) external exam               naturaI and unnatural. If unnatu-       this section. This includes
               (2) internal olgan              ral, then it is further subdivided      whether the body is clothed
               injuries                        into homicide, suicide, accident,       and ifso what type of clothing
               (3) F~,actures                  or undetermined.                        is present. Other items which
               (4) hemolrhages in              3. Mechanisms of death: This is         accompany the body (per-
               body cavities                   the physiologic delangement or          sonal effects or jewelry) are
            c. Extremities                     biochemical alteration which is         also included.
               (1) external                    incompatible with life which is         b. In most homicide cases, the
               (2) fractures                   initiated by the cause of death.        hands are, o r should be, rou-
    E.   Stmnguiation                          Mechanisms do not ioutinely be-         tinely bagged. This protects
         1. External exanlination              long on the death certificate. Ex-      potential trace evidence, fin-
         2. Neck dissection                    amples include hemorrhage, sep-         gernails, andfuearmsresidues.
            a. Layenvise dissection            ticemia, and cardiac arrythmia.         Paper bags are preferable to
            b. Hyoid bone and larynx        C. Organization of Report                  plastic bags because the plastic
         3. Mechanisms                         1. Preamble: This area may vary         bags help trap and create
         4. Petechiae                          in structure fmm office to office       water vapor condensation in
    F.   Child Abuse                           but the main components are es-         morgue coders and may wash
         1. Exte~nal examination               sentially the same. This is the         off primer residues or haCe evi-
         2. Internal examination               administrative portion of the au-       dence.
         3. Special dissections and            topsy report in which the salient       c. Postmortem changes and
         exan~inations                         features include:                       estimation ofthe time of death
    G.   Special Features                          a. Jurisdiction or institution.     arevariableand difficult at best.
         1. Photography                            b. Case number associated           Oftentimes the time that the
         2. Diagrams                               with the autopsy.                   lethal injury is inflicted is not
         3. Clothing                               c. The decedent's full name.        the time of death. Persons may
         4. X-rays                                 d. Date, time, and place of         survive long or short periods of
         5. Fingemails                             examination.                        time following an injury de-
         6. Head hair                              e. Authority for examination        pendent on the location and
         7. Blood for typing                       unless implied by recognized        magnitude of the injury. The
         8. Hand nripings                          system,department,or agency.        longer the postmortem inter-
    H.   Conclusion                                f. Optional aspects (example:       val, the greater the variability
                                                   body organ weights, date and        and the less precise the esti-
I. Medicolegal Autopsy Report                      time of death, or date found        mate of the time of death. Usu-
   A. Introductmn                                                                      ally the time of death is best
   Communication with the medical
   examiner is paramount to under-
   standing the autopsy report. It is
   your responsibility to contact the
                                                                                                 Co~ztiittred page 33
                                                                                                            on
   pathologist to ask questions perti-
   nent to your case. This type of
   dialogue prevents adversarial court-
   room inteiaction. There is no reason
   for an antagonistic relationship be-
   tween the medical examiner and the
   defense attorney if t h e e has been
   good pretrial preparation.
   B. Ternlinoloa
      1. Cause of death: Injury, dis-
      ease, or combination of the hvo,
      which initiate the sequence of
      events however brief orprlonged,
      which leads ta the fatal outcome.
      Examples of causes of death in
      clude gunshot wound of head,
      stab wound of chest, coronaly
      artety athe~osclerosis,and k-
      quired     Inlmun~deficiency
                                           VOICE FOR T H E D E F E N S E




           Time to Win the "War"
  Tmnty-seven years ago, I returned        The "Wal" escalated during the 80's            "Itmay profit us wry little to win the
M my hometownwn     :&Allen, and began     wRh millions of dollars allocated to        war an dmgs if, in ihe pracess, we Lase
to pradice law. In 1967, the first dnt$    enbrcement ofthe new criminal sanc-         our soul." Does this statement refer to
caatses appeared. Since 1 knew most of     tiom. Mwdatorg minimum federal              allowing ow citizens to be searched
the young people, I was hired to repre-    sentences. No probation. No patole.         without a w a r m or probable cause?
sent some of them. The dmge was            Reult? The Drug Enforcement Ad-             What happened to the F~ourth     Amend-
ususy pwewion of marijuana. The            m'1nistraIIm recently released the fol-     ment? Is it me that we can be lreld fat
penalty then was two years to life         lewingsta~ticaldmx!     Duringtheheight     months without bond simply bemuse
imprisonment and/or a five thousand        of the "War: the i d u x o f m i n e into   we have been cha,ged with a d w
dotla One -evm for simple passes-          the United States increased three hun-      violation? Can we be hdd for foq-
sion of one nrarijuana cigarette. AS a     dred pefofltlt but rhe price decreased      eight hours before the law requires us
result of this law, nrany young liva       five hnndted peecent! This           was    to betaken before a fudgeEO even begin
Were ruinedand tbeirfamEesdestroyed.       romplled during the years 1980-1987         the process of "due proeew*? Can we
In the 6Ws, marijuana was belng            by the very governmencagemy charted                        in
                                                                                       be stapp~d an ahpart, questioned
'whelesakd' in Mexico for thirty-fne       to condsct the War."        there is any    and searched shplly because we paid
dollam a kilogram.                         coi~lation   bemeen matljuana and co-       for an airline ticket with cash? Can our
  Wen@-five yews have p a d and            caine, one could argue that had the         property be seized and forfeited even
we ean mw see the results of the so-       "War" bees mccessful, it would only         though nre have n m r hwn convicted
eaued War onDn~gs,"     Marijuana n m      have succeeded in driving the ptke up.      of a crime? Can our law enf~leefllf~nt
sells h Mexico f a around three hun-       The demand appeam to be a relative          officers kidnzrp citizens of another
dred fifty &allam a pound - about a        wnstant while supply appears to con-        countrywith impuoity qo me can afford
twothousandpercentinw'easeintwenty-        trol the price in the i3lid c i r ~
                                                                             market    them the "presimption of innocence"
odd years. The prisous are bumlingat          Back in 1989,US. DEsrrictJudgeRokrt      m;tnds@d by our Constitution? Mustan
theseams,Mn@he taxpaye~samund              Sweet of New York laid it on the line:      eighteen ywr old boy or girl with no
hivemy.thousand dolIars a y a r for each   'The driving forcebehind dmgabuse in        prior criminal record be sentenced to a
inmate,nlost of whom are mn-violent                                    U
                                           out society is what ddves a roo much        minimm offiw yearsin prisonwith no
drug offendem If marijuana had been        in our society- maney, or the lack of       pmibility of prob;ttion at.parole?
the only problemem it wuld haveindeed      It. Prohibhion policies anly fuel the          The man who referred to "Ioslng our
been imnic. No clmical deaths have         engine of dmg abuse." The judge             soul" was U.S. District Judge W W m
everbeen attrihutd to marijuana,while      advocated full repeal of drug prohibi-      Sshwaner of CalaOmM. In a case
alcohol snd dgzrettes each kill in the     rim.                                        involvhg one hundred p m s of CO-
neighborhood of three hundred thou-           X 1991, U.2 Circuit Judge William
                                               n                                       came Qess than four ounces), he NW
sand - every year.                         Newsom of California advocared de-          Itrequire# by the mandatory minimum
  A "nm" d ~ -cocaine -became
                   g                                        of
                                           m ~ l i z a S 1 m drugs. He described       sentence lawto sehtencea fiist offender
the new target o the "War on Drug*."
                 f                         the current policy as "fore-doomed to       to ttn year5 in prison NPth no parole.
                                           Fdure." US. Dfstrict Ju+e J. C . Faine      He calM the sentence "a grave mis-
                                           of M I m i siated in December 1,1991:                                       rm
                                                                                       caniage of justice" resulting f o rules
                                           "Alcohol did not cause the h f h crime      that "make judges clerk -or nor even
                                           rates of the ZO's and 3Q'a  Prohibition     that - computers, automatically iat-
                                           dtd, Atlrl drugs do not cause today's       pm~n~senteneestvrthoutre~ard      towhat
                                           alarmihg crime rates, but drug prohibi-     is just and right."
                                           tion does."                                    Doing what is "just and righty is
                                                                                       supposed to carry m e weight in our
                                                                                       countiy. Of course our objectivtt Is to
                                                                                       c u d Qug u~ - and crime - but
                                                                                       trying to amst, prosecute, and incar-
                                                                                       cerate ourmy out of the d~gprobiem
                                                                                       is simply not working. The m t , in
                                                  rowniaiionsthrougtroutthes
                                                  ding the Advanced Criminal       I   taxpzyer dollais and wid upheaval is
                                                                                       astronmiml. Themoneyand the effort
                                            V O I C E F O R THE D E F E N S E




    Parole Revocation in Texas
   (My God, What Happened to the Constitution?)
                                       by William 7:Habem and Helen Copitka


                                                                                            what happened to bring him back he-
". . . if current revocations are an example of                                             fore the Parole system.
                                                                                              While the Mi~anda    warnings are not
what "theNew Texas"will allow in the criminal                                               requiredofparoleandp~wbation     officers
justice system, then who is going to be as-                                                 when talking to those they supervise, it
                                                                                            appears questionable for the system to
signed to oversee the legality of the systems o   f                                         farce an indigent inmate to supply such
parole . . . unless it is the criminal defense bar."                                        info~mation to an employee of the
                                                                                            ageney that is attempting to take his
                                                                                            freedom (usually his parole officer who
                 Part 2                       of legal procedures, total failure of         instigated the fist step toward the re-
                                              understanding as to technical issues of       vocatiod. Is one's parole officer a
   E. The Matter of Amointment of             evidence, failure to unde~stand irn-
                                                                                the         disinterested person? (A copy of the
Counsel in Revocation Heal'in~s               portance of procedu~almattels,    and, in     three-page folm follo\vs this a~ticle.)
  In the past the State Bar of Texas,         geneml, their inability to understand           F. The Ru$e of Gettin? the Parolee to
through its inmate assistance program         the underlying basic legal principals of      Waive His Rieht to a Revocation Hear-
run by Bill LaRowe, was in charge of          points made by the attorney.                  &&
insuring that indigent persons, subject           The matter grew to the point that            How can one subject to a revocation
to parole revocation, had access to           LaRowe wrote a letter to the Division         proceedingknowinglyand intentionally
counsel, at no charge. Du~ing time
                                the                                    for
                                              seeking some ~emedy the sinlation.            waive the Constitutional right of his
LaRowe was in charge of these indrgent        (LaRowe supplied a copy of that letter,       liberty interest absent first discussing
revocation appointments, he became                                   s
                                              which, follows t h ~ a~ticle.)                his sitnation with an attorney? It's easy,
well respected for his effortsand in fact         The Patole Division has taken over        if that person is in jail on a parole
did a commendable job.                        the duty of appointing indigent parol-        revocation warrant, and the parole of-
  Prior to LaRowe having to terminate         ees free counsel. New issues and              ficer lies to him. The all too common
his appomtment duties, he was con-            p~vhlemsdeveloped with their new              practice in the cunent system is for the
fronted by a large numherof volunteers,                 of
                                              p~wcess appointment of counsel.               offender's parole officerto go to the jail
respected and experienced criminal                W~th LaRowe, iFonenas indigent one        and "talk the offender into not asking
lawyers, who gave notice that they            got counsel. Under the Parole Division        for a healing." What mostly oocurs, is
would no longer accept appointment            the determination appeals to be based         that the parole officer tells the offender,
from his office unless he could assure        upon some type of guideline program           unless there are new charges, that if he
them that the hearings would be con-          involvinga series of considerationssuch       signs the waiver to avoid a hearing, he
ducted as stated in the Parole Division       as the complexity of the case, nature of      w n ' t go back to p~ison. In fact, most
regulation. Things did not improve,           theissuesand otherunknownelements.                                            e
                                                                                            of those cases where t h e ~ are no new
and have not improved today.                      While the case law indicates that not     criminal charges do not go hack to
  While there were exceptions to the          every single indigent person subject to       prison. They ale sent to the old Bexar
complaints that bearing office~s ~ not
                                 d d          revocation may be entitled to legal           County Jail for 90 days.
know what they ale doing, in general,         counsel, it is noted that many parolees          It is still the practlce for the parole
the lawyers had become so frustrated          have substantial mental irnpairnients.        officer to run to the jail and obtain a
with the lack of legal understanding of       'l'hc m:~jority                   ;incl/ol.
                                                              lravc poor rc:~ding           waiver from the indigent parolee, in
the "designees" who conducted the             i r i n g skills. If thc clclvr~nin~tionto    most cases, before counsel is hiled 01
hearings that they would no longer            appoint counsel is in p a t based upon        appointed. Thus, by the time the family
accept such appointments. 'I'heir c a m       an employee of the Division under-            gets a lawyer to the jail, the offender has
plaints wele generally directed at the        standing the complexity of the case, it        waived his right to a hearing. We have
fact that these hearing officers were         follows that to fully determine that           personal knowledge of this happening
incompetent to conduct a fact findmg          element something would need to be             3n such a regulal basis that we are of
hearing due to their lack of knowledge      1 known about the offender's version of           he hdief the procedure is Division
                                                                                                                                  15
                                            V O I C E FOR T H E D E F E N S E

policy. Even when a pre-arrawed              Texas. Wepreume thatsucha a n t =               Wr'dIkmu;738 S.W.Zd 257, 1 8 3
                                                                                                                       97.
meeting has been a p e d to,there have       ex&&,but have not been able to locate          We haw illso seem cases where pa-
beenhstanceswhereaparoleemp1oyee             the contraa.                                 roleeswho&notspeak~ishAuently
would go directly to the jail aheadof the      Old Bexar County is where a n u m b        $4not afforded waive-, notice, or
meeting time and procure a Naiver.           af those @ who are revoked for tech.        atbiee in their naivelanguage. Ourlast
  This offleer has complained many           nical offenses, and who have no n m         such case involved a Spanish-speakbg
tlmm to the P d e Division, hut this         conuictEons.                                paroh. m~vety      time this o ~ d ap-  w
shddy,unethicaLpractice mtinues.               Theseppklikely waiwpltthdrrighh           peared in m a , fre ieqwired an inter-
  Amajorparoledctentionfaciiityisthe         to a revamtion h ~ ~ mHawever, they
                                                                        g.               preter, E m v e r , at the timehe executed
old Be~exarCounty jail in San Antonto.       ale not told, and the current waive         his waiver of parale revocation, the
The last time this officecheeked,no one      form used by the system does not state      parole officer did not sp&         Spanish
in the Parole Division could @nt us ro       that they are entitled to an *adjustment    and the waiver was wrltten only in
a contrsm irehvmn the o m of that            heating at revocation, men if c m           English. The validity of such a waiver
facility and any a-ny of dut Smte of         victed of a new ~ffense    (See &n. Pgrtt   is q u ~ t f ~ b l e .
                                                                                           In a c m of law, the judge appoints
                                                                                         counsel for one who may lose hislher
                                                                                         lib* at the f i court appmnnce,
                                                                                         even if the aient wants to enter a plea
                                                                                         at once.
                                                                                           In revacation hearings the law is nst
                                                                                         as absolute as when one Faces a new
                                                                                         criminal charge and is indl&ent. Today
                                                                                         the Divsion decides if an Endent pa-
                                                                                         &e even gets a lawyer. Usually the
                                                                                         discussion about an appoioted lawyer
                                                                                         owurs only aftwan attempt is made by
                                                                                         the parole officer to obtain a waiver of
                                                                                         any parole revocation hearing.
                                                                                           No parole &ser wants ro at& a
                                                                                         prole revomtion hearing Tfiey are
                                                                                         time consuming,b m , and the parole
                                                                                         oMclerissubjeottolxeingcm%wmned
                                                                                         by an ammeyabout his mpewlsion of
                                                                                         the offender. Who* for one second,
                                                                                         thinks such~lestidEpersm          doesnot
                                                                                         have a s p a 1 interest in meing that a
                                                                                         waiver is execute&
                                                                                           G. RevocafionBasedon Issues Other
                                                                                         Than a New CotlviCtion. m McDuffe
                                                                                          a
                                                                                         B&
                                                                                           Anothef potential am af cornem k~
                                                                                         F a d in Art. 42.18 Section SCd, which
                                                                                         states Btat all piuvk releasesshall issue
                                                                                         upon orderofa parale panel, even after
                                                                                         mvn~tiinn. .
                                                                                         ~. ~ ~
                                                                                             ~  ~~.
                                                                                                 ~       ~ .
                                                                                          TIIISSIKWILD INCI.UDI!INMATES
                                                                                         WHO AXE SUBIHCT TO HliJ&&E
                                                                                         AFTER REVOCATION HIIT THE
                                                                                         BOARD lrlBVER SBES               E
                                                                                                                         W %


                                                                                            Instead, this is what has been hap-
                                                                                         pening in cases whem an inmate is
                                                                                         m o k e d ebut has no newc~nviction)..It
                                                                                         appears that rhe staff makes decisions
                                                                                                                ~
                                                                                         involving r e m f m n aodre'lnmatements
                                                                                                            a
                                                                                         ofpamle ~ithout bo;irdmember ever
                                                                                         seeingthecases. There also have been
                                                                                         staff member6 msking decisionsabout
                                                                                         release on parole prior to the date the
                                                  V O I C E FOR            T H E DEFENSE




    Burning Down the Woodshed;
           Presenting Evidence Without Witnesses
                                                         byJudge WaNaceBowman

                   Part 2                                         v.
                                                          Peizi.~ State, 748 SW2d 629 (Tex.            properly did take judicial notice of this
                                                       App. - Ft. Worth 1988). Cou~tof                 fact even though the district court was
     RULE 201 (b) Kinds of Facts. A                    Appeals could not take judicial notice          not requested to do so and did not do
 j~rdicial@                          be
               rroticeclfact ii~lrst one nor                                     of
                                                       of purpolted ~ccords another coult              so.
           lo
  s~rbject reaso~iable     LliSplrte in that if &      where those records were attached to                           u.
                                                                                                           Go~fzdes Smfe, supla.
  either (11 geneml!)~ knoru~rruitl~int/~e appellant's brief butwel-e not part of the                                   u.
                                                                                                          114cC1~lIocb State, supra.
  terrilorinl jlrrisdictioiz oftlx? trial C O L I ) ~ appellate record.                                    Lewis u. State, 674 SW2d 423 ( Tex.
  o r (2) capcrlde o ~tcc~trate refld~.
                      f              nttd                A4cC1rllo1rglr.'u. State, 740 SWZd 74         App. - Dallas 1984).
  dete~~ninatio~l.                          es
                    bj,resorl t o s o ~ r ~rubose      (Tex. App. - Ft. \Vorth 1987). Court               FEDERAL RULE: Same.
                                        be ~ ~
  accrnacg camlot r e a s o ~ ~ a h qrtes-             can take judicial notice of the explosive          CIVILRULE: Same.
  tiotied.                                             nature of gasoline (P.D.R. -refused).              RULE 201(d) When Mandatory. A
     COMMENT: This portion of the rule                   Dmke u. Holstead, 757 SW2d 909                colrrf shall take jrrclicial i~oriceif 1.e-
 is vely straight forward. On the theory               (Tex. App. - Beaumont 1988). Trial              qireste~l0j1apntfyn11ds11pplie~l1uit~?  the
 that it does not make good sense to                   court erred in refusing to take judicial         necessn~y   irfor?m?lioi~.
 require formal proof of facts that are                notice that a car travels 58.66 ft. per            COMMENT: By judicial interpreta-
 already known, two k i d s of adjudica-               second at 40 MPH when appropriate               tion, there seems to be a requirement
 tive facts may be judicially noticed.                 mathematical calculations were fur-             that a rime@ request he made before
 First, facts which are well-known by                  nished to court by proponent of such            this mandato~yprovision will apply.
 reasonably intelligent people in the                  evidence.                                       The net effect of this is that judicial
 community are the proper subject of                                   CityofFt. lVo~ih, S\VZd
                                                          IY~ilIiarrrsu.                 782           notice can only be niandatory at the
 judicial notice. Second, facts which                  290 (Tex. App. - Ft. \Vorth 1989).              trial court level; and this will occur only
 may be easily determined by resort to                 Appellate court could not take judicial         after a timely request for the trial court
 accurate and unin~peachablesources                    notice that breasts of female topless           to take judicial notice and supplying of
 may b e judicially noted. Both types of               dancer were commonly associated with            the necessary infornlation to the court
 arliudicative facts al-e therefore "not               sexual arousal.                                 to demonstrate the propriety of doing
                                                         Tnrjillo u. State, 809 SWZd 593 (Tex          so. As a result, judicial notice at the
proof should not be ~-e$recl.                         App. 1 ~ n t o n i o
                                                                 San            1991).                  ~ppellatecoua level will always be
    However, just because the trial judge                FEDERAL RULE: Same.                            liscretiona~y.
knows a pa~ticular       fact, does not make             CIVIL RULE: Same.                                This tule will almost always have
it a proper suhject for judicial notice.                 RULE 2 0 1 ( ) WhenDIscretionary.
                                                                       c                                qplication only to those facts which
The factnlust be known generally in tile              A cotirt~tmaj~takeji~dicia/~lotIce, iuhet/JeI'    oe properly noticed under Rule 201 (h)
community.                                             reqtrested or not.                               2 ) ; i.e, facts capable of ready and
    Whether referring to 201 (b) (1) or                  COMMENT: A trial court or an ap-               scumte determination by resort to re-
201 (b) (21, the key concept is that the                             may
                                                       pellate cou~t sua sponte take judicial           iable sources. This is presumably so
facts must he "indisputable."                         notices of facts. Of course, those facts          ,ecause if the fact was a Rule 201 (b) (1)
    LEGAL AUTHORITY:                                  must be facts of \vhich judicial notice           ype of fact; i.e. a fact generally known
    '7udicial Notice under Arlicle 11of the           may be properly taken (see disciission            n the conununity, then the trial court or
Texas Rules of Evidence," \Vellborn,                  of Rule 201(b), supra). But the court             rppellate court could take judicial no-
supra.                                                must, upon request, give all parties an           ice in its discl-etion without having to
                       Co.
    Eagle?i-rrckir~g u. Te.snsBilrdithic              opportunity to be heard as to the pro-            esort to supporting documentation or
Co., 612 S\VZd 503 (Tex. 1981).                       priety of the court's action of taking            )ther reliable sources and there Is pre-
    Trial judge improlierly took judicial             judicial notice (see discussion of Rule           urnably no need for the other party to
notice that a certain section of highway              201 (dl, infra).                                  espond since the fact is taken as gen-
was not within a business district. Even                 LEGAL AUTHORlTY                                :rally known and thel-efore "inclisput-
though the judge may have individually                   Hmperu. Killiori, 348 S\V2tl 521 (Tex.          t>le.'x
                                                                                                         ---


known this, because this fact was not                 1961). District cou~t   sitting in Cherokee         Prior to the adoption of the new ~ules
widely known and was subject to dis-                  County could have judicially noted that           f
                                                                                                        j Civil Evidence in 1983, there was no
pute, it was not proper subject of judi-              the entire city ofJacksonville is located         )revision in the law for mandatory
cial notice.                                          in such county, and the Appellate Con~t           dicial notice. Case law pre-dating
                                                    --




                                                  V O I C E FOR THE DEFENSE

  1983 only spoke of judicial notice as             and fhe tetror o the matter noticed. In
                                                                       f                       Texas Rules of Evidence," Weliborn,
  discretionary. Thus RuleZOlCdY cteates                             f                    Ih&
                                                    fht3 absence o P f l ?loh~hZlio~~, supra.
                                                                              ~
  a new legal concept in Texas evidence             ~qtlestmaybenzd~aJferj~fdicial~~oficr w u. SMte,733 SWZd 218 CIex.
                                                                                                    t
                                                                                                   n n
  law.                                              has been taken.                             Crim. App. 1987). Even though the trial
    Because of the implied req~+irement                COMMEh'T: This portion of the rule      of this case occurred prior to adoptlon
 that the request be made in a tfmeb~               is designed to provide the mechanics         f
                                                                                               o the new Rules of Ciiminal Evidence
 manner, the procedural aspects of this             for determining the p~oprietyof the        in 1986, the Court made numerous
 rule cause the conclusion that the rule           court taking judicial notice of an adju-                to
                                                                                               ~eferences those ndesin this opinion.
 is mandatorya the trial courtlevelonly.
                t                                  dicative fact. It does this by making       The Court ~uledthat the trial court
 This is so because a party could not              milndatoly a heariw on the action of        imp~operly    took judicial notice of prior
 respond to information provided at the            the coun in taking judicial notice of a     convictions in o1der to impose a con-
 appellate level to support a request for          fact. However, the hearing does not         secutive sentence on the defendant.
 judicial notice. In other words, the              have to preoede the court's act of taking   Because the couKsactof~akingjudiual
 ability to respond and create an ap-              judicial notice. Also, a party must         notice was improper under other por-
 propriate record an the snbject, can              request a hearing beforesame becomes        tions of what is now Rule 201, the
 only Occur at the trial cou~tlevel.               mandatory. This is tme whether or not       defendant did not 'waive" error by
   LEGALAUTHORITY:                                 the request comes before or after t e failing to ~equesthearingunder 201Cel.
                                                                                           h                     a
     "JudicialNoticeUnderA~tide of the 11          aclal act oftakingjudrcial notice bythe         Goad u. Goad 768 SW2d 3% CTex.
  Texas Rules of Evidence." Wellborn,              cowt. Likewise,the questfora hwing          App. -Texarkana 1!389). Where trial
  supm.                                           must be made whether or not judicial         court took judicial notice of closely
     Sparkmanv.Sfaie, 519 SWd852 Crex.            notice was taken sua sponte or upon          related casespending before samecourt
  19751, Pgpellate Court would not take           the motion of the proponent of the           and other courts in Bra- County, the
  judicial notice of State Highway Re-            evidence. If no request is made, the         appellant waived any error by not r e
  partment traffic manual,where no such           court does not commit error by failing       questinga hearing under 201(e) so as to
  request for judicial notice was made at         to d u c t the hearing.                      make a record on the proptkty of the
  trial.                                              It is also inlportant to remember that   court's action.
     Dtrdentndf SzrrwpnsS~@@ Alanlo   u.          the rules of evidence do not apply in a         (NOTE: Rwner and Goad are prob-
  Brp, 686 SW2d 351 CTex. App. -San               hearing to determine the propriety of       ably not as contradiaoiy as they may
  Antonio 1985). Courtofappealsrefused            the court taking judicial notice of a fact. seem. It appears that if a court makes
  to take judicial notice of a Texas Rail-        This hearing simply amounts to a pre- an obvious error in t&ng judicial no-
  ~oadCornmission        tariffwhen theteqnest    limina~yhearing on adntislbility of         tice and the record is already suffcient
  was first made on appeal, even though           evidence. Rule 1101 (c) (1) provides        to demonstrate this, then the opponent
  appropriate suppmting documentation             that the rules of evidence are not ap-      of such evidence does not waive error
  was submittedto appellate court which           plicable to the determination of ques-      by Failing to request a hearing. Con-
 demonstrafed the tariff rules submitted          tions of fact preliminary to the admis-     versely, if the act of taking judicial
 to the court were c o r m .                      sibility of evidence. Presumably then.      notice appears a~guablyproper ac-
    MaHf~~ezv. ofSaa Antwzfo, 768
                    City                          the court could consider any source         cording to the record as it exists, then
 SW2d 911 Rex. App. - San Antonio                 marerial provided by the proponent of       failure of the opponent to request a
 1$%9). Court of Appeals, in its discre-          the evidence without the proponent          hearing under 201W may well amount
 tion, took judicial notice of an onli-           having to ''offel" the source material      toawaiverof any potential enor because
 nance of the City of San Antonio when            and establish the usual - .       proper                is
                                                                                              therec~rd notadequate For theappel-
 no request had been made For the trial           evidmtiary predicate.                       late court to determine whether or not
 court to take judicial notice of this same          B G A L AUTHORlTY:                       rhe trial coun acted imptoperly.)
 ordinance Cthis case, which was before              'ludicial Notice Undexk?ide I1of the
 thesame court as Dudemfadt, supra, was                                                                             Continued on page 3 5
 distinguished on the grounds that there
 were no pleadings in Dtlde~smdt             to
 supportthatpdtticularrequestforjudicial
 notice).
    D m p v . State, 807 SW2d635CTex.
App. -Houston 19911. Simple math-
ematical dculations are the type of
facts that a coun can judicially notice;
but the court is only required to do so
if a timely request is made by the
proponent of such evidence.
   PEDERAL RULE: Same.
   CIVIL. RULEr Same.
   IUlLE Oppartunity to be
heard. Apa~Ty          tientitled tipon titidy
t q t m t t o a n otyhorftrnityto b@lmmias
                    o m i a jtrdtcial norice
                     f
to tl&?propriet~~ k ~ g
                                              V O I C E F O R THE DEFENSE




                Search and Seizure
            Under State and Federal Law
                                                 by Judge Jude Marie Meeker


                  Part 6                      m e under state law was subject to a             This limited sea~ch    occurs as an ad-
                                              warrantless investigatory search pu~su-       junct to taking a pelson into custody
W.Exceptions to the Search War-               ant to the incident-to-forfeiture doc-        and is limited to the area immediately
 rant Requirement                             trine.                                        surrounding the place of arrest. If,
  A. Genela1 Exceptions to the Search            2. Scope                                   however, offcers want to make a "pro-
  Warrant Requirement                            The permissible scopeof such a search      tective sweep" of the rest of the house,
  1. Searches incident to a lawful alrest.    extends to the areas into which the           then there must be a~ticulablefacts
    a. The federal nde.                       alrestee might reach in older to grab a      which would wanant a ieasonably
    1. General rule.                          weapon mdestroy evidence. Chime1 u.          prudent officer to believe the area to be
    Wlen an arrest is made, an oRcer          Caifornia, 395 US. 752,89 S.Ct. 2034,        swept harbors someone who could be
 may reasonably search the arrestee in        23 L.Ed.2d 685 (1969).                        a danger to police. [See discussion of
 order to remove any weapons which               Searches of the area within the                     y
                                                                                            T a ~stops, inJirra.1
 could be used to ixsist arrest or escape,    anestee's imnlediatecontloldiffer from           In B d e , the Cou~tdistinguished
 or to prevent destruction of evidence.       searches of the person's b d y incident       Chingel,in which the Court held that the
  Cbitnelu.Calfonzia,395 US. 752(1969)        to arlest. Although there is no workable     justifiablesearch incident toanin-home
    The custodial arrest gives the officers   definition of "the area within the im-       anest could not extend beyond the
 the right to search the arrestee. Once       mediate conwol of the a~restee"   relative   artestee's person and the area from
 the person is arrested, he or she may be     lo the inteiior of an automobile, when       within which the arrestee might have
 searched regaidless of whether the of-       an officer makes a lawful custodial          obtained a weapon. In Chinael, officers
 ficer had a subjective fear that the         mest, he or she may, as a contempo-          conducted a full search of the entire
 alrestee was armed U~rited       States u.   mneous incident of that arrest, search       house for evidence of the crime for
 Robinson, 414 US. 218, % S.Ct. 467,38        he passenger compartment of the au-          which the arrest was made. The prc-
 L.Ed.2d 427 (1973).                           ornobile. New Fork u. Belto,~, US.
                                                                               453         tcctive sweep is a less intrusive search.
    A search incident to a lawful arrest      45% 101 S.Ct. 2860, 69 L.Fd2d 768            Also, in Cbin~el, justfiation of the
                                                                                                                  the
 may be deferred until the defendant is       :1981). Also, containers found within        sea& inctdent to arrest was the threat
 taken to the jail. United States u            he passenger compartment may be             posed by the arrestee, not that posed
~ i u a r d s , US. 800,94S.Ct. 1234,39
            415                               iearched.                                    by unseen third parties in the house.
L.Ed.2d 771 (1974). The search may               Belton established a legal fiction that      b. The Texas rule.
not, however, precede the arrest and          mythingin the passenger compartment              1. General rule.
provide the justification for the arrest.     s within the "inmediate control" of the         Texas law generally follows federal
 Smith v. Ohio, 110 S.Ct 1288 (1990).         mspect, regardless of the facm. Belton       law with regard to searches incident to
   In Cwper u. Cafifinria, 386 US. 58         loes not apply if there is no vehicle        lawful arrest. Carmsco u. Stflft: 712
(;1967l, the Supreme Cou~t    recognaed       nvolved.                                     S.\V.W 120(Tex.Cr.App. 198Q. Whether
the existence of an incident-to-forfei-         In Mraiyland u. Bi~ie, S.Ct. 1093
                                                                        110                                            an
                                                                                           an offrcer has ~educed article to his
ture exception to the mirant require-          1990), the Supreme Court held that                                       is
                                                                                           or her exclustve cont~ol a question of
ment. Astate statute authorized seizure       >fficersmay conduct a cursory search         fact to be determined based on the
of any vehicle used to facilitate com-        ~f she area in a house ltnnlediately                                                f
                                                                                           totality and exigenciesof the factso the
mission of a drug transaction, and inl-       ldjoining the place of arrest as incident    case. Id.
poundment of the vehicle until a for-         o arrest of a suspect. T h e Court stated,      A search incident to lawful arrest is
feiturewas declared ora release ordered.        1
                                              L0 S.Ct. at 1098:                            permissible even if the arrest takes
The Courtupheld the warrantless search          "We also hold that as an mcident to        place after the search. Snftetlwbileu.
of a car seized under the statute as          he arrest the officers could, as a pre-      State, 726S.W.2d81 (Tex.Cr.App. I%),
reasonable.                                    autlonarymatter and without probable        I F U O I S ~ O Iothergrui1ndslO8S.Ct.
                                                                                                            ~                    1792,
   In UnitedStatesu.Saln?ott,-F.2d -          xuse 01 reasonable suspicion, look in                            u.
                                                                                           and Willian~s State, 726 S.W.2d 99
(3rd Cir. Nos. 90-3355 etc, delivered         ,losets and other spaces immediately         CI'ex.Cr.App. 1986). As long as the
September 17, 1991, 50 Cr.L. 10341, the       Idjoiningthe place of arrest kon~which       alrest is supported by probable cause
Third Circuit rejected a claim that a cal     In attack could be immediately               and formal custodial arrest takes place
seized in anticipation of eventual forfei-    aunched."                                    quickly aftm the search, a post-search
                                                                                                                                 19
                                                V O I C E FOR THE DEFENSE

  arrest is permissible. [The search may           there is a dep;rrtlnent p o k y allowing                      Texas inventory search law generally
  not, however, precede the arrest to              such action. Horida u. IVeIs, 495 US.                     follows federal law. See Dekndou. Sfdle,
  serve as p a t of the justification for the     -+ 1lOS.ct 1632,109 L.Ed.2d l(1990).                       718 S.W.Zd718(Tex.Cr App. 1986). A          n
  arrest. See S i b ~ m A'ew York, 392 US.
                      u.                           In Wells, police forced open a locked                     inventory sealch is acceptable if:
  40,823S.Ct. 1889,20 L.Ed.2d 917 (1968).1         suitcase found in the tnmk of a car, and                      1. No force is used to enter the area
    A search incident to arrest is not             found maijuana. The Hi&way Patml,                         searched. Gtrillelt u. Slats 677 S.W.2d
  allowed if officers merely detain the            however, had no policy with respect to                    46 <Tex.Cr.App. 1984): Stephen u. Stute,
  defendant and do not arrest the defen-          opening closed containers found dur-                       677 S.W.2d 42 (Tex.Cr.App. 1984); and
  dant, intending totake himorherto jail.          ing an inventory, so the search was                       Kelley u. Slate, 677 S.W.2d 34
  Limtelt u. State, 647 S.W.2d 672                improper. The Supreme Court noted                          CTex.Cr.App. 198@.
  (Tex.Cr.App. 19831, ChristEan u. Slate,         that an "all or nothing" policy would be                      2. The impoundment is not used as
  592 S.W.2d 625 (Tcx.Cr.App. 19801,                            as
                                                  pern~issible, well as a policy allowing                    a pretext to investigate suspected
  cerr dented 446 US. 984 (1980), and             officer to open closed containerswhose                     crin~inal                  and
                                                                                                                        activity, Crlo'j~ BeMJ2e.
  Tboinas u. State, 572 S.W.2d 507                contents are nor made known from                              3. The arrest and the impoundment
 (Tex.Cr.App. 1776).                              examining the containers' exteriors.                       must be lawful. See Delgado u. Sfute,
    2 Scope.                                      Absent some policy, however, thesearch                     718 S.W.2d 718 (Tex.Cr.App. 1986);
    A search of the passenger conlpart-           was invalid.                                               G a ~ ~ l d i n State, 683 S.W.2d 411
                                                                                                                         u.
 ment of an automobile is permissible                In Uizit~dSlaresu. H&n, 922 F.2d 243                                                            Stnte,
                                                                                                             (Tex.Cr.App. 1 9 m ;a n d i ~ r d a l l u .
 when the driver is legally arrested.             (5thCir. 19911,theFiFthCircuitheld that                    656 S.W.2d 487 (Tex.Cr.App. 1983).
  Osba~zu. State, 726 S.W.2d 107                  I.R.S. agents' search of a car they had                       4. There is no reasonable alternative
 (Tex.Cr.App. 1986), overruling Gill u.           impounded after arresting the m e r                        to impoundment available to police at
 Slate, 625 S.W.2d 307 (Tex.Cr.App.              was not a valid inventory because the                       the time of seizure. See De&ado, and
 1981).                                           I.R.S. had not promulgated standard                        cases cited therein at 721. Whether the
 2. Inventory searches.                          procedures or guidelines for conduct-                       Court of Climinal appeals will adopt
    a. The federal role.                         ing such a search, and there was n o                        Beflitre and dispense with the no al-
    Even though an inventory search is a         evidence that the I.R.S. agents were                        telnative nleans of protection require-
search, theSupleme Court has held that           aware of theMidland police procedum                         ment was under review in Heilr~zan          u.
 the Fourth Amendment does nor apply             when conducting an invento~y       search.                  State, -S.W.2d-(Tex.App. -Dallas
to inventory searches. South Dakota u.               In United Slales u. Khorrty, 901 F.2d                   No. 2-85-35CR, delivered September 7,
              428
 Oppern~atl, US. 364,96 S.Ct. 3092,              948 (11th Cir. 1990)tmodfied slightly                       1989, pet. no. 1380-871, but the Court
49 L Ed.2d 1000 (1976).                          on other grounds, 710 F.2d 713) the                         held that fedelal search and seimre
   The existence ofalternative means of          court held that an officer impropelly                       mnterpretations should no longer be
protecting the propetty does not negate          reopened a notebook containing per-                         mtomatically followed and remanded
the police's authority to inventory. As          sonal writings of the defendant. The                         he case for consideration of the state
long as the vehicle is not impounded as          officer found the notebook during a                         :onstihitional claims. HeiftJlaJtu. State,
a pretext inorder to investigate suspected       routine inventory. He thumbed through                       315 S.W.2d 681 (Tex.Cr.App. 1991).
criminal activity, the inventory search is       the book to determine whether it con-                          In Cot-ds u. State, - S.W.2d -
allowable. Colorado u.Betti~re, U.S.479         cealed any items of value. He did not                        rSex.App. - Dallas, No. 5-91-645CR,
367,107S.Ct. 738.93 L.Ed.2d 739 (17871,          read the bookat fiist, but didnotice that                   jelivered February 6, 1992), the ap-
Cadj' u. Don7btnwski, 413 US. 433, 93            it was a diary. He ~etained    custody of                   >ellatecourt noted that under Heitltm,
S.Ct. 2523, 37 L.Ed.2d 706 U773), and           the book and later reviewed its contents.                    he Texas Constitution could provide
Illinois u. Lafayette 462 US 640, 103           The court noted that inventory searches                      nore protection to citizens than that
S.Ct. 2605.77 L Ed.2d 65 (1983).                may not be used to permit a general                          given under the federal constitution;
   Officers may open closed containem            investigatory seat&. Since the officer                      hus, sinceTexas couw hadconsistently
found during an inventory search if             satisfied the purposes of inventory by                       leld that impoundnlentwas lawful only
                                                determining that items of value were                         f no other reasonable alternative was
                                                not concealed in the book, he exceeded                       rvailable to insure the vehicle's pro-
                                                the scope Ofpennissibleinventmywhen                          ection, the "no other reasonable alter-
                                                he later read the book.                                      ~ative" lequiretnent still applied under
                                                    In State (Hawaii) u. Perbum, -P.2d                       rexas law.
                                                                   t
                                                      (Haw. Sup. C .No. 14514, delivered                       When a prvper inventory search is
                                                August 5, 1791, 49 Cr.L. 14761, the                          .onducted, police may search any
                                                Hawaii Court held that closed com-                           .ontainers found in the vehicle as a
                                                partnlents in an arrestee's wallet may                       esult of the search. Stephen, and Gaol
                                                not be searched pursuant to an inven-                        1. Stale, 647 S.W.2d 646 (Tex.Cr.App.
                                                tow search under the Hawaii Constitu-                         983)Copinion on rehearing).
                                                tion.                                                          In Mobeq u. State, 810 S.W.2d 190
                                                    b. The Texas lule.                                       Tex.Cr.App. 19701, the Court noted
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                                                :Ggzff-p a p Marie Meeker serves as the Justice o'f the Peace, PI&@@&IO,:T@$;'~
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                                              V O I C E F O R THE DEFENSE

 that an invento~y  search may not devi-       pe~missible exigent circumstances               may not themselves manufacture the
 ate from police department policy and         search.                                         emergency which gives rise to the exi-
 the State may satisfy this burden by             Bolden u. State, 634 S.W.2d 710              gent circumstances. United States U.
                                                                                                                                            '
 proving that a policy existed and the         (Tex.Cr.App. 1982): Police believed a            Seytozr, 663 F.2d 411 (2nd cir. 19811,
 policy was followed. See also 8 m s u.        woman and child had been shot so                affirmed on other grounds, 468U.S. 796
 State, 576Ss.W.2d46(Tex.Cr.App.     1978).    entry into defendant's apartment was            (1984). In U~zited  States U. MacDOnald,
 In Moherg, officers searched the             justified.                                       916 F.2d 766C2nd Cir. 1990)(opinion on
 defendant's motel room before the oc-            Bray u. Sfate, 597 S.W.2d 763                rehearing, 893 f.2d 482)(en band, the
 cupancy period te~minated.One offi-           Crex.Cr.App. 1980): An officer went to          Second Circuit held that exigent cir-
 cer admitted that there was no policy         investigate a possible d ~ u g     ove~dose     cumstanceswerepresentandunztTected
 tegardinghotelroonl inventoryseaiches.        and, on a~rival,saw the ambulance               by later official action. Ten minutes
 The Court declared the search invalici        attendants leaving. They told him that          after an undercover agent's purchase of
 under both the federal and state con-         althongh the suspect had taken some             dnlgs from a group of armed men
 stitutions.                                   type of narcotic, he was not in serious         inside an apartment,agents knocked at
    These cases do not establish that a        distress. They left and the officer dis-        the apartment door. The occupants
 written policy is required.                   covered that there were other people            then attempted to flee. The court held
 3. Emergency situations.                     who could assist the suspect. He went            that the exigent circumstancesaltowed
   When there are exceptional ci~curn-         in the house, however, to investigate.          the agents to break down the door and
 stances, the need for effective law en-      Therewas insufficientproof to establish          enter without a warrant. Even though
 forcementmay justifyawarrantlessently        that an emergency required the entty.            the knocking precipitated the subse-
 into and sea& of a premises. Johnson             Stewart v. State, 681 S.W.2d 774             quent events that pplompted the agents
 u. Unlred States, 333 US. 10, 68 S.Ct.       CTex.App. -Houston l14thl1984, pet.              to break down the door, exigent cir-
 367,92LEd.2d4360947>.For example,            refd): The fue department officer de-            cumstances were present before the
 the wamnt requirement will not apply         tected the odor of ether in an apartment         agents knocked. The court added that
 whenan officer hears a c ~ for help and
                               y              complex, determined the soulce to be             the fact that an agent may be interested
 demands entrance. McUotmld v .               one particular unit, and entered the unit        in having others act in a certain way that
 UlzitdStates, 335 U S. 451.69 S.Ct. 191,     without consent. At trial, he restified          provides exigent citcumstances may
 93 L.Ed.2d 153 (1948). The need to           that he was concerned for the safetyof           not invalidate an othe~wise     lawful ac-
 protect or preserve life justifies a war-    the people inside that unit. The Coit~t          tion. The agents' expectations were
                                                                                                              -
 rantless search,and policeale authorized     of Appeals held that the officer did not         irrelevant.
 to seize any evidence discovered in          reasonably believe that an emergency                In Vale v. Loiiisiana, 399 U.S. 30, 90
 plainview when responding to such an         existed. See also Marlinez u. Slare, 792         S.Ct. 1969.26L.Ed.2d409 (19701. officers
emergency. Mitzcy v.Arizona, 437 US.          S.W.2d 525 (Tex.App. -Houston llstl              watch& defendant's house because
385,W S.Ct. 2408,57 L.Ed.2d 290 (19781,       1990, no pet.).                                  they had m o warrants for h arrest.
                                                                                                                                 i
44ichigan u. w e < 436 U.S. 499,98 S.Q.       4. Destluctinn of evidence emergen-              They saw the defendant go outside the
 1942, 56 L.Ed.2d 486 (1978).                 cies.                                            house and conduct what they believed
   In Michigan u. 'Q1e,; 436 US. 499             a. The federal rule.                          was a drug tclnsaction, so they arrested
(1984), andA.llchic:utzu.Cllffoord,464 U.S.      A warrantless search may be justified         him on the front steps. The police took
287 (19841, the Supreme Court held that       if there is an emergency creating a lisk         him inside, conducted a cursory search
a fire emergency autholizes firefghters       that evidence of a crime will be lost or         of the house and found dugs. The
to conduct warrantless searches to de-        destroyed. For instance,a bloodsample            search was not proper as an incident to
termine fire origins.                         may be taken to determine alcohol                arrest since the defendant was not ar-
   InTexas,thefederallawonemergency           content because the delay attendant to           rested in the house.
searches is generally followed. See           obtaining a warrant may result in lost              &Pave suggests that the Vale deci-
Bass u. Slate, 732 S.W.2d 632                 evidence. Schmerberu. CufifonzZa,384             sion limits the emergency destruction
CTex.Cr.App. 1987). A warrantless en-         U.S. 757, 86 S.Ct. 1826, 16 L Ed.2d 908          of evidence exception to situations in
ty is permitted when offcers enter a
 t                                            (1960.                                           which the evidence is in the process of
           to
pren~ises render emergency assistance            It is more difficult to justify the search    destn~ction.Probable cause to believe
to persons reasonably believed in need        of a house under this doctrine. In               that there is evidence in a pmnises and
ofaid. Tllefollowingrasesareexatnples:        seved cases, the Sup~enxe          Court has     a possibility that the evidence nil1 be
   B m u. Stare The detective was in-         considered an emergency destnlction              destroyed will not be suffkient to sup-
vited into the house to establish whether     of evidence exception to the warrant             port a wa~rantlesssearch under this
the defendant had been the victim of          requimnent but the facts of the cases            exception. 2 W. IaFave, Seurcl~and
foul play. The detective knew that the        did not fit within the requirements for          Seiz& Sec. 6.5(a), at 655 0987).
defendant was suspected in a murder.          such a search. See Johl~sotlu. U~iited               .
                                                                                                  b The Texas rule.
While in the house, he looked into a          States, 333 US. 10, 68 S.Ct. 367, 92                In Afulaigi v. State, - S.W.2d
chest of drawers and found a box of .25       L.Ed.2d 436 (19481; McDorldv. Uizlted            (Tex.Cr.App. No. 1407-89, delivered
caliber bullets and a receipt for a gun.      Stufes, 335 US. 451, 69 S.Ct. 191, 93            June 19,1Wl)(rehearingfled), thecourt
Although the detective could properly         L.Ed.2d 153(1948); and UfritedStnres        v.   stated that in order to establish the
enter the house to look for the defen-        Je&ts, 342 US. 48, 72 S.Ct. 93, 96               possible destruction of evidence as an
dant or his body, theseruchof thechest        L.Ed.2d 59 (1951).
of drawers was beyond the scope o a    f         Of course, law enforcement agents                                 Ctnitinrred on page 39
                                         V O I C E F O R THE D E F E N S E




      SIGNIFICANT RECENT DECISIONS
                                          Editor Cafheriize Greene B~smetf


                                            Part 2              ing to sureties seeking to apprehend principals.
                                                                  CO&LVlEhTI~tfact,                                illto effect
                                                                                      thestalrrto~~gtririeli~zes~le~rt
                                     1. Trial Issues
                                      1                           with the 1973Penal Code. 7beSzrpremeCoirrt decision on
                                                                  luhichD 1~1iedhadDeerr   disnuo~~edbytheCotrrt of Crinzincrl
                                    BURDEN OF PROOF               Appeals in 1976.

                                    SANITY: IF D PRE-           cAPmAL MURDER
                                    SUMED INSANE BE-
                                    CAUSE OF PRIOR DE-          1                                              runs
                                                               11 t11i.sarea of the Color of Cri~nhralAppeals character-
                                    rnRMINATION,STATE                                     a               of
                                                               istic& actiue. Alfbo~rgh la)@uolr~nre capiml cmszum.e
                                    BEARS BURDEN OF            decicleu: there were )ED major breaktbmrgh decisions. n ~ e
                                    PROOF. R!.L.EY,No.231-     most troubling area of recent capital litigation in 'lb.ws
                                       91; March 25, 1992;                 to
                                                               corrtin~~esbe tl,e tole of mitigntion mrd the special issfres;
                                        0pinio11DyJldgeBai~zl; nifomatately for the dofmzse bar, a rnajo~ity the Court is
                                                                                                                of
                                       Judges McConn ick,                    its                 of
                                                               ad/~erinrgto narloeu ~vading I'enly v. Lynaugh, 492 ZS.
                                       l l e r White. and      302 (1989).
 Ouelstreet dissent.                                           MITIGATION AND THE SPECIAL ISSUES: Colzsistent&
   C/A reversed conviction at 802 S.W.2d 909.                               thepastflue nrontlzs, the Color has rehrrk~defforts
                                                               tl~~orrgl~o~rt
 Reversible enol occurred here because the application para-   to e2pandPenry to i~rcltide                   thee~pressPenry
                                                                                            isisss ot/~ertha~r
graph of the court's charge to the jury ~equired to find D
                                                   it          euicleme of severe met~tal               a17d
                                                                                           ~vta~dation an abused child-
 insane, or to have a reasonable doubtabout sanity, before it                                  of
                                                               hood. Speciffcnl&,the Co~n-t CritnirialAppeals c o ~ ~ c l n d d
could convict. I'rope~ly,the instructionshould have required                                                           bjl
                                                               that euiclenceof thefollowing faclars ions nrcon~passed the
the july to find sanity before it could convict.               three "specid issues" of Ariicle 37.071, Code of Cri~ninilzal
The issue of sanity is an affirmativedefense. Because it is an Pmcedzrre, or did not rise to a Penly Ieuelr
affumative defense,% heals the buden of p~oof. However,          TROUBLED BACKGROUND [DOES NOT IMPLICATE
a critical exception to the burden of pmof occurswlienever       PENRY CLAIMS].
D previously has been adjudicated insane and that adjudica-      MOODr; No. 70,883; Janualy 15, 1392; Opinion by Judge
tion has not been vacated. Under that fact pattern, the          Overstreet;Judge McCornlick concus; Judges Clinton and
presumption is that insanity continues. Thus, the State incurs   Maloney dissent in palt.
the obligation of proving, beyond a leasonable doubt, that D     INTOXICATION AT TIME OF OFFENSE [DOES NOT
was sane at the time of the alleged offense. In shotf the        REQUIRE SPECIAL INSTRUCTION].
bu~den   totally shifts.                                         MINIEL, No. 70,733; Januaty 22, 1992; Opinion by Judge
                                                                 Overstreet; Judges McCoimick, Camphell and Benavida
DEFENSES                                                         concur.
                                                                 MENTALDISEASE (84 IQ, CHROMCSCHIZOPHRENIA)
MISTAKE OF LAW: DEPENSE UNAVAIIABLEWHEN D IS                     [NOT COMPARABLE TO MITIGATING EVIDENCE OF
RELYING ON 1873 SUPREME COURTDECISION. GREEN,                    PENRY I.
No. 483-9Q April 24 1932; Opiniotl by.rtdge Be~iauides,           mPaHeLUCAS, No. 71,164; Aprils, 1992;OpinionbyJudge
Jzrdges fvliiler and Oue~street cor~crtr.                        Overstreet; Judges McCormick, Campbell, Baird and
   C/A aff~nued    conviction at 785 S.W.2d 955                  Benavides concur;Judge Clinton dissents; Judge Miller not
This murder p~osecution      amse from a surety's atiempt to     participating.
apprehend a principal. D tried unsuccessfdly to algue that       RELATIVE'S LOVE FOR D AND DESIRE TO SEE HIM
he had a valid mistake of law defense because of d~cta a  in     LIVE [NOT MITIGATING EVIDENCE].
1873decivion of theSup~en~eCourtthata      suletypossesses the    FULLER, No. 70,881; Ma~ch 1992; Opinion by Judge
                                                                                                 25,
same autholity and powers of airest as a "similarly situated     Ovelstreet;Judges Canlpbell, Baid and Benavides concur;
peace officer. The Court of Criminal Appeals ejected that        Judge Clinton dissents.
reliance as unl-easonableas a matter of law. Central to that     EVlDENCE OF CARING FAMILY; HIGH SCHOOL
determination was that the US. Supreme Comt decision had         DROPOUT BECAUSE FAILING;RELATIVE YOUTH ( 1 ;            2)
not been the law in Texas since the Legislature abrogated the    UNDER DRUGS AT TIME OF OFFENSE [W CONSD-
common law by enacting guidelines defining the law apply-        ERED BY SPECIAL ISSUES].
                                               V O I C E F O R THE D E F E N S E

  Ex paiteKELLEY, No. 71,008; February 19, 1992; Opinion                  would constitute a continuing threat to society
  by Jutlge\Vhite; Judge Baird concurs;Judge Clinton dissents.            PSYCHIATRICTESTrmONY: ADMISSIBLE ON ISSUE OF
  LACK OP CRIMINAL RECORD; MARITAL PROBLEMS                               FUTURE DANGEROUSNESS.
  [CONSIDERED BY SECOND SPECIAL ISSUE].                                   FULLER, No. 71,046 fifarclz 25, 1992; Opir~ioill~                g Judge
  JOIAER, No. 70,269; F e b ~ u a ~ y 1992; Opinion by Judge
                                  12,                                     Beirauides;Jrrdges &f~lla;      Oueistreet and ~VIaloi~q~        coilcrl~;
  Baird; Judges McCormick and Benavides concur; Judge                     Jlmdge Cli~rton  disseilfs,JrlclgeBairdcor~crrrsa~lddiselfts           ill
  Clinton dissents;Judge Maloney dissents in part.                        pait.
  GOOD CHARACTER; DIEFICULT UPBRINGING; IN-                               In this decision the Court of Criminal Appeals reaffirmed its
  TOXICATION AT TIME OF OFFENSE [WITHIN SCOPE                             conmitment to the concept that "psychiatryis. . .sufficiently
  OF SPECIAL ISSUES].                                                     advanced to permit predictions of future violent behavior."
  GOSS, No. 70,506; March 4, 1992; Opinion by Judge                       LEGALBACKGKOUND: As a matter of federal constitutional
  Campbell; Judges Miller and Overstreet concur; Judges                   law, the United States Supreme Court has similarly rejected
  Clinton. Baird and Malonev dissent.                                     such attacks on the predictive nature of such testimony.
                                                                          Bmefoot u. Estelle, 463 U.S. 880 (1983).
                                                                                                      his
                                                                          Although D st~uctured appellate complaint as an attack
                                                                          on the testimony of Dr. Grigson, a majority of the Coun
the ~ ~ ( f i c i e i r q , qru~lity p~o~islziirei~t
                      nrd            of               euideizce. nzere    viewed it as an attack on the testimony of all psychiatrists
were iio gro~rrrd-breaking                   ir?
                                   decisior~s tl~is  area.                                                                 not
                                                                          claimingto have a predictiveaptih~de recognizedby the
  SUFFICIENCY OF PUNISHMENTEVIDENCE: ''EU'IURE                            American Psychiatric Association. During the punishment
  DANGEROUSNESS" ESTABLISHED.                                             phase of trial, Dr. Grigson testified over objection that there
  HA1 VUONG, Ab. 70,402;Jarllmry 8, 1992; Opiniori b j ~                  mas "no doubt, whatsoever, that [Dl . . . will commit future
  Jrrdge Ca~iiphell.                                                                                           and
                                                                          acts of violence in the fuh~i-e, represents a very serious
  The Court found sufficient evidence of future dangerous-                threat to any society which he finds himself in."
                         the
  ness to suppo~t juiy's affirniativeanswer to Special Issue                                          GUIDE:
                                                                           COI~'~~IEIVT/PRACTICE Dr. Gl'igso~l repented@            bas
  2 at the punishment phase of trial. Under the facts of this              den~or~strntedn                             in
                                                                                              TeJ1oi1-likequali[y the intersectiori ofbis
  case, a iational ju~y        could have found D was a continuing        professiai~nllife m d bis e.xpei.t luili7es life. In t l ~fnce of e
  threat to society when focusing merely on the offense itself                                    botlz
                                                                          yean o rehrrfffrori~ f e d e r z d s t a t e corrrls, the fuenry
                                                                                  f
  - 1)'s murder of two people and injury of others were                    c~qitnlp~oiisl~iiie~~tlitign~orlegiti~iiateco~~ldbe           ~ooirderiirg
  particularly calculated, brutal and senseless. The Court's                               c                                    In e .
                                                                           ifjritt~erstrch t ~ a l l e ~ l g e s n i . e l u o ~ i /flil~f~eI'illgf/~nl
  decision did not hinge on this evidencc alone, however.                  qrrestion, npmctitioner might take heart in reuieruilrg t/Je
  Here rhe Sme also introduced expelt psychiatric testimony                rockypntl~  rii~ich  rrltimnte/jr clrliriirmted in Penry.
  and evidence of prior extraneous offenses (including a                  JURY ARGUMENT: PERMISSIBLE IMPLICATION OF
  prior D\W probation and anunadjudicated offense involving               FUTURE DANGEROUSNESS.
  weapons and narcotics).                                                 STERLING, No. 70,829; April 22, 1992; Opirliolz hyJ~rdge
  SUFFICIENCY: ADEQUATB EVIDENCE OF EUTURE                                ~Mnloitey.
  DANGEROUSNESS.                                                          D claimed that the following argument of the prosecutor
  JOINER, No. 70-269;Febnmry 12, 1992; Opinio~l                DyJrmdge   was an implication that D would be paroled at some fuhl'e
  Baird; Judges ~WcCorriiick          aild Beiirruicles concrri: Jrrrlge  point if the ju~y not assess the death penalty: ". . . If you
                                                                                             did
   Cliiztoi~  rlissei~ts;  Jrrclge Mdorre~,dissents iir part.             don't answer thosequestions thenay this evidenceshowed
  This was a prosecution under g 19.03(a)(G)(A) of the Texas              you they had to be answered, both of them "yes," you are
  Penal Code-intentional killing of more thanone individual.              going to participate with [Dl in taking another life." The
  The Cou~t Criminal Appealsfound the evidence sufficient
                of                                                        Court of Criminal Appeals rejected D's interpretation of this
  to support the jury's affirmative answer to the second                  argument, finding a more reasonable view of it as an
  special issue on future dangerousness. Here the first victim            argument that in light of the evidence D would conunit
  was stabbed four times in the chest and I-eceived series ofa            future acts of violence, even in a prison envi~ontnent.
  neck lacerations. The second victim suffered 41 wounds to               Fachlally there was a substantial record made by the
  her cheek, and hel- throat had been slashed. Further,                   prosecution of D's violent nature. This included his
  physical evidence suggested that each of the victims was                conduct in jail during trial and on pi-eviousoccasions when
  sexually assaulted by D following their deaths. In addition             he had been incal-cented,including: D's abusive behavior
  to the evidence surrounding the two offenses, the State                 toward detention personnel, D's threats, D's propelty
  introduced testimony that three days before the murder, D               damage to a jail cell, an escape plan found in D's cell, D's
  held his estranged wife captive for more than 24 hours,                 confession to a double homicide in another county (for
  forcing her to disrobe and assaulting her with a knife.                 wliicli he was convicted and sentenced to life), and D's
  Additionally, the State presented psychiatric testimony                 assault on a jail officer.
  based on hypothetical questions. From this evidence the                 Significantly here, the Court included prison "society" as a
  Courr concluded that D s actions appeared cold, deliberate,
                                 '                                        legitimate segment of the population addressed by the
  and calculated; significantly, he acted alone and was not               second special issue on future dangerousness.
  under the domination of another. Thel-ewas no evidence                 CAPITAL MURDER AND DOUBLE TEOPARDY CONSID-
  that D's distress over his marital separation was associated                                                                 e
                                                                         ERATIONS: 111a signifcant decision, t l ~ Corr~f Criiiiinal    of
  with his later b~utalacrions. 'l'lie Court concluded the               4ppenls nd~/i.essed jeopard~- elated qrrestiorr o collateral
                                                                                              the                                       f
  evidence sufficient to suppo~tthe ju~y'sfinding that D                 ?stoppel nild its application to ii~frltg~le       capitd 111~lrderpros-
  would probably commit criminal acts of violence that                                               the
                                                                         ?crrtiom. Iiiqoitar~tl~~, Courtf o ~ m dtl~at special issuea
I                                              V O I C E FOR            -1E DEFENSE

     "no" ammr on the iswe o &tire dangemlsness is f f ~ f
                                      f                                   showing particularized prejudice under the facts of the
    fifirnctionuleqzrimlent o an "acqyfttal"for rleath penalfj
                                 f                                        case. Here the State presented 51 witnesses and over 160
     k n e s %a, the death penalty did not become a uia6k                 exhibits in the course of a five-month trial.
    ptorishtne~zt    option h tho second triscl.
                             z                                                                            o
                                                                          PRACTTCE GUIDE. A ~naiorifyf tbo Cou1tascri6essigrz~-
        COLLATJBAL ESTOPPEL: JURY'S NEGATIVE ANSWER
        TO SPECW. ISSUE AT FIRST TRLM BARS STATE'S
        EPFORTTOSBEKDEATHPENALmIN~LATEDTRLM.
        fkprteMATHES, No. 685-88; April 22,1992; Opinion by
       Judge Clinton;Jutlgc Campl)cll(:oncurs;JudgcbMc.Connic~k,
        h~liller.\Vhitc. and I<t:niwidcsdisscm.
                                   at
        C/A granted k i t ~elief 755 S.W. 2d 161.
        The State charged D in two separate indictments with
        capital murder of X and Y. In each indictment the State
        charged that D killed each victim while in the course of
        committing and attempting to commit robbery of both. D          COUNSEL
        was fust tded forthe capital murder ofX Although the july
        found that D acted delibemtely, it answered "no" to the         INEEEECTIVE ASSISTANCE OF COUNSEL: FAILURE TO
        secondspecialissue on future dangerousness. Acco~dingly,        REQUEST JURY CHARGE ON DEEENSE OF NECESSITY.
        a life sentence was imposed.                                    VASQUEZ, No. 1075-W;         Jurztiury 15, 1792; Per Cztriunz
       The State then announced its intention to t ~ y for the
                                                           D            Opin/on;Jtrdges McCormick, White, a n d Bemuides dissent.
       capital nlnrder of 71: once again seeking the death penalty.        C/A affirmed conviaion at 796 S.W.2d 555.
       D filed an applmtion for writ of habeas corpus.                  A majority o the Court found ineffective assistance by trial
                                                                                      f
       HELD: The negative answer on the Issue of future                 counselwhen thedefense attorneyfailed torequest submission
       dangerousness made by the jury during the first trial is the     of the defensive issueofnecessity. Under the facts of the case,
       functional equivalent of an "acquittal" of the death penalty.    the trial court would have erredinrefusingsuchaninst~ction
       Collateral estoppel prevents the State from seekimg the          had counsel requested one. Thus, counsel's performance in
       death penalty for the murder of Y. "Collateral estoppel"         failing to seekthe instructionwas "clearlydeficient." Here the
       holds that once an issueof ultimate fact hasbeendetermined       jury was precluded from giving effect to D's defensive
       in a valid and f m l judgment, that issue a n n o t again be     testimony; that inability undermined the reviewing court's
       litigated between the same parties in any future lawsuit.        confulence in the conviction.
       In grnnting w i t relief, the Court determined that the issue    The facts giving rise to the defense of necessity in this case
       of whether there is a probability that D would constitute a      stemmed from D's prosecution for possession of a f~eaealm    by
       continuing threat to society is an issue of ultimate fact.       a felon. D testified that shortly befox the offense, he had
       Resolution of this issue (in the context of a bifurcated         been in the hospital recovering from a back injury h e received
       proceeding) is determinflfim of the judgment and the             inanattack by a ~eleasedpiison     gang menlher. D testified he
       sentence of the trial coun. The Skate is thus collaterally       was in danger of being ha~med killed by former membecs
                                                                                                          or
       estopped from relitigating the irsue -despite the fact that      of puson gangs because he had been a "building tender"
       thevictimin thesecond trial is different from the complainant    while in the penitentiary. At trial D also claimed that he had
       in the first trial.                                              been kidnapped from the hospital by these gang members
      JURYINSTRUCTION: NODUE PROCESSVIOLATIDNIN                         and held captive until sho~tly  before his arrest. Concerning
      INSTRUCTINGJURY ON TEN REQUIRED ' 0 VOTES"        "               his possession of the gun, D testified that whenone of the men
      TO SPECIAL ISSUES.                                                gnarding him was distracted, D was able to get a gun and
      STERLING, No. 70-829:                                 by
                                   April 22, 1992;Opin&~z Judge         scape. It was wide he was walking through a convenience
      Malonej~                                                          store parking lot that he was seen by the person who reported
      The Court stands by its earlier decision in Dmis, 782 S.W.2d       o the police that there was a man with a gun at the store.
      211. It rejected D's argnnlent that charging the jury in the      [n reversing D's conviction based on ineffective assistance of
      language of Art. 37.07Kg) of the Texas Code of C~iminal           :ounsei>a majority of the court concluded that by denying the
      Procedure is a due process violation because it denies the                                to
                                                                        iuy an oppom~nity consider the defense of necessity,
      july a proper understanding of the effects of thei~      delib-   :onvietion in this case was a foregone conclusion. This fact
      erations. D argued that the statute misleads the jury             satisfied both the "deficient pe~fonnance"and "outcome
      becanse of its failure to infom iurors that a single "no" vote    ieterminative" prongs of the test for ~eviewing      claims of
                  of
      to eithe~ the special issues would require the trial court         neffective assistance of counsel.
      to sentence D to a term of life inlprisonment.                    INEPFECXWE ASSISTANCE OF COUNSEL: STANDARDS
      SPEEDY TRLAL: 13-MONTH DELAY IN CAPITAL                           FOR APPELLATE REVIEW.
      PROSECUTION UPHELD.                                               ZRAIG, No. 33-97;March 4 1792;Opinion 6yJzrdgeBairli;
                                                                                                      ,
                                         5
      HARRIS, No. 70-I6ZApril 1 199% Opinion DyJt~dge                   kid@ ~ticCornzick,White, nnd Benauides dlsenl.
      Cantp6elkJndge Clinton concurs.                                     C/A affirmed conviction at 783 S.W.2d 620.
      D asserted that both his state and federal constitutional         The Court of Criminal Appeals has redfirmed its commitment
      rights to a speedy trial were violated because 13 months          o two different standards for gauging claims of ineffective
                     an
      constih~ted extraordinary delay. A mapity of the C o w            tssistance of connsel. Once such a claim is made concerning
      rejected this argument. Devastating to D's claim were his         icts or omissions at the guilt-innocencephase of trial, the
     failure to invoke hisEightuntil trial and the lack of evidence                                          in
                                                                        >roperstandard is that a~ticulated Strickland u. Wflshing-
                                           V O I C E F O R THE D E F E N S E

ton, 466 US. 668.                                                          other~uise.  '"
However, wllen a claim of ineffectiveassistance of counsel is              Conlpnrison of the Frye gefretd acceptance test with tbe
                                      at
based on acts or omissions occui~ing the punishment phase                  Taas euidenfia~y     reqrirmnents of Rtrle 702 shozus ninny
of a non-capitaltrial, the test is the standard established in             distincrions. UizderRtile 702there is nospecialadnrlssibil-
E2parte Drifl, 608 S.W.2d 507.                                             ily standard for nouel scientific eui'dmtce. Conseqi~ant~r,
  LEGAL BACKGKOUND: Stricklatld requires a m70-part                        scia~ificeuide~~ce    codd be shorun to be reliable euen
  analysis: (1) whether the attorney's perfo~mance   failed ro             tl,otrgb it is notgenmally ucceped in the ~elemntscie~~tfic
  constitute reasonably effective assistance (the deficient                commr~nity.
  peifornlance prong) and, (2) if so, whether there was a               FACTS: D was prosecuted for murder. Prior to trial, he fied
  reasonable probability that, but for the attorney's unpro-            a motion to suppress expeit testimony concerning DNA
  fesslonal errols, the result of the proceeding would have             identification test results. At a lleanng conducted outside the
  been different (the outcome-deter~ninativeprong). in                  jury's presence, the State presented five expert witnesses who
  contract, the Dgifly test (applying tv claims of ineffective          testified that the techniques used in D's case were generally
  assistance o counsel at the punishment phase of a non-
               f                                                        accepted and could be used to compare a known sample of
  capital trial) poses two issues: (1) whether counsel was              DNA with an unknown sample. These experts further
  reasonably likely to lender effective assistance and (2)              testified that reliable and generally accepted techniques are
                                                                        available to extract DNAfro~n    blood andsenlenstainsand that
                                      "                                 the specific company that conducted the scientific testing
    more p~arectiueO or beneficial to, tl~e
                         J                             accrised tlian   used in this case applied a generally accepted technique to
    Strickland. Qtiery: Whatso~i~tdpolicj~reasotlsareitrrplicatedcompare the DNA from D's blood with the DNA taken from
    if7 hauing the afguably nlom di@c~rlt        standard applied to    a semen stain found at the victinl's home. Finally, the expelts
    the smztenclng phase of capital nrt~rderp~mecution?            Tl~e testified that the test results showed that D's DNA shared
    ocl&ttuoptr~~ishn~e~rt   optiotzsauailable in a capital rnrrrder- certain molecular characteristics in common with the semen
    tridareqz~alitafIue&    fnoreseuemtl~an     tl?osepresent if7non-   stain DNA. At this hearing D presented testinlony from an
    capitalptoseartion.In theface of the Corrri of the Crin~inul expert witness in ~ebuttal. That witness questioned the
    Appeals'iuiNittgrrmtofashio~~I i~iciepende~zt foriron-
                                        QI                 test         reliability of DNA fingerprinting and its acceptance in the
    capital trials, corild capital ~~trrrderpractitiorlon-e for
                                                              afgrre    scienttfic community. Specific to this case, that witness also
                               as
    a Duffylike stai~dard a matter of state const~trrtional questioned the particular techniques used by the company
   j~rrispmldence?                                                      conducting the test. Before the trial court, D argued that the
                                                                        DNA identification evidence was inadmissible under the Rye
EVIDENCE                                                                standard: it was not accepted as reliable i n the scientific
A significant dececlsion of the past Jiue montl~s          corzcemi~zg community dealing with DNA. Ilut argument was rejected,
 evidence issues iiauolw DNA tasting and the sfrrndardfor               and over D's objection,the five State expelt witnesses testified
arln7issibility. lKellyl n e Coil17of Crin~inal       Appeals a6Qf1- before the jury.
 doned the F y e testfor determining the a h issibillty of DNA          The expel%                                            that
                                                                                     witness testimony at trial included datun~ only
 testi~zg euidence. The 'penem1acceptance" Iangnuge of the              one person in approximately 13 million shares DNA with the
Frye test is no longer ll~eslandar Twcas; in tl~ijliurisdiction same molecular chamcteristics that tests ~eveal
                                         in                                                                                were shown
aclnzissibility for nouel scient~jkeui&nce will be gauged               by D's DNA and the semen stain extmcted DNA from the
 under TtxtasRzdeofCri~ni~~alBuidem IIL        702. otherareasof        victim's home.
euidmce law, the Corrrf of CrinfinalAppeals reuisted con]- HELD: Evidence admissible. RATIONALE: The test for
peteucjl andp~eseruation        lssrres, breaking no new ground         admissrbility in Texas is that found in Rule 702, not Prp.
DNATESTING: ADMISSIBILITYMEASUREDUNDERTRCE                              Although the Court of Criminal Appeals acknowledged that
702;FRYE TEST ABANDONED. KELLY, No. 969-9@Feh                           some of its prior decisions used "genelal acceptance test
         r~
r ~ t a 5, 1993 Opinion by Judge Campbell;j~idgaClinton, language," those decisions predated adoption of Rule 702.
Baird aird Oveist~eet      concnr:                                      Under Rule 702, in contrast to Fye, the proponent of the
   C/A affirmed conviction at 792 S.W.2d 579                            evidence is required to showthe evidence is relevant. The test
This decision is significant because the Court of Crinlinal             forthat determination is oneof dear and convincrngevidence.
Appeals was clearlycalled upon to adopt or abandon the Fiye                    the
                                                                        H e ~ e decision of the trial court was "within the zone of
test concerning admission of sc~entific        evidence.                reasonable disagreement" based on the evidence presented
    COMMBNT/I.EGALBACKGROm: Frye v. United States,                      at the suppression hearing. Because the trial court m s
   293 F. 1013 (D.C. Cir. 19231, is the premier ciecision               persuaded that the evidence was relevant, it becomes ad-
   co~zcer~ti~zgsid~~~i~io,r  ofscie~ztificeuidetrce.  Itisthegenesis   ulissihle for july consideration unless the trial court further
   of ilie '&tern/ acceptance tat" ruhic11h m been applied to           determines that its p~obative     value is outweighed by some
   issfred as far-ranging as medical e.vclnriirer teslinrony Factor identified in Rule 403 k g , , ~rmdtrep~~udicel.
   concerning cause of death to~~chological           testimorzjl com       Accord, T W O U , Nos. 1257-91 AND 1259-91; Ap1i1 1,
   cerning the battered spotise .sy?rdmme.                                  1992; Opinion by Judge Miller; Judge Clinton concurs.
   In contrast,Rule 702oftheTe.~nsR~rlesofCrE1~tiizalEuid Accord, GLOKER, No. 607-90; February 26, 1 9 2 ; Opinion
  pmuiclesr "If scientific, technical or other specializerl                 by Judge Campbell; Judges Clinton, Baird, and Overstreet
                                          of
   knowledge will assist the t ~ i w fact to irn&stand the                  concur.
   eui&tce, ortodeterrnineafact i f 7 i s m , a nuitnessqlmlified EXTRAh'EOUS OFFENSES: "SYSTEM"Ex'IRANEOUS OF-
   as an mpelf bj1 knowledge, ski16 experience, training, or FENSE EVIDENCE INADMISSIBLE W H E R E NEITHER
   education, nzaj!testfv thereto in thefern? of an opi~ion          or IDENTITY NOR LACK OF MISTAKE WAS TRlAL ISSUE.
                                              V O I C E FOR T H E D E F E N S E

 CEEDED SCOPE. LANKSTON, hTo.1094-90; M m d ~             4,1992;     of violation of the State Securities Act. Following that
  Opinion hjr Judge Benauides; judge Baird conc~r~s;       Jlrdges    conviction, the trial court ordered D's 20-year state sentence
 McConnick, Wl~ite,     arrd Cnnlpbell disseirt.                      to be senred consecutively with a previously assessed federal
 This decision illustrates the confusion surrounding how              sentence.
 specific an objection needs to be to preserve a claim for            PUNISHMENT: NO FIRST AMENDMENT VIOLATION
 appellate review. In strong terms it shows the contemporaty          WHEN EVIDENCE ADMITIED CONCERNING D'S ASSO-
 position ofthe CourtofCriminalApl~eals in orderto avoid
                                             that                     CIATIONWITHRACISTGROUP. FULLER, Are. 71,O 7@Marct~
 waiver, "all a party has to do to avoid the forfeiture of a          25,1992; Opirrion 6]!rrrdgeBe1muides;Jrlclgesilfille~;Oue~street,
 colliplaint on appeal is to let the tl-ial judge know what he        crrrd di[nlorq~     co~rcrrr; Jtrrlges B a i d a r ~ dCli~~ton dissei~t.
 nrants,why lie thinks himself entitled to it, and to do so clearly   This was a capital murder appeal during which the State
 enough for tlie judge to understand him at a time when the           introduced evidence implying D was a nlember of (or
 trial court is in a ploper position to do so~netliing   about it."   connected with) the Alyan Brotherhood. D argued that such
                                                                      punishment evidence mas inadmissible because it penalized
                                                                      him for his exercise of rights guaranteed him under the First
testimony of X, the adult woman to whom the alleged child             Amendment.
victim first I-eported D's conduct. Texas has codified a              HELD: Evidence was properly admitted. RATIONALE: Free
statutory exception to the heal-sayrule concerning statements         association is guaranteed by the First hnendtnent; however,
of such a child victim - permitting them to be repeated in            this constin~tional      protection does not extend to organizations
court by the adult t o whom they were first made, provided            with illegal aims. Similarly, membership withintent to further
                                 Article 38.072, Texas Code of
that certain conditions al-e~iiet.                                    those goals is not protected. Factually here there was
Criminal I'rocedure.                                                  testilllony by a prison PI-osecutionunit         investigatorconcerning
Coliiplying n~iththis statute, the State gave D a written             the purposes of this white supremacy group: "Neo-Nazitype
sunitnaly of X's statement \vliicli the prosecutor intended to        organization, all whice individuals who are basically racist . .
                                                                      .they are not law-abiding. . . [violence]is theit main function
                                                  "   "               . . . intimidation and fear." On the basis of this testimony, the
 no other instances of clainied ~nisconduct    were referenced in     Court of Criminal Appeals concluded there was sufficient
 the sunmiary.                                                        evidence to support a conclusion that membership in the
 During trial, the prosecutor askedXif the childvictim had told       Aryan Brotherhood is not a right of free association subject to
 her about "some bad things that hadbappened to her at                First Aniendnient protection.
 home." 1) immediately objected, stating, "'Illere are param                                         f             l
                                                                          COAMEI\~ Corr17 o C r i n i i ~ iA p p s dlsti~~grrist~ed             this
 eters that are exceptions to the hearsay rule that I believe this       cnsefiom a rece)~t                     f
                                                                                                    decision o 1/38 Uuited Sintes Sqbl-eme
 person can testify to under tlie rules and [the prosecutod has           Cow/ in Dawson v. Delaware. In Dawson, ~ul~ich                 ir~uolued
 so filed his letter stating what those parameters are. I would          sinrilnr circrrnrstances, t l ~ e                       t co~zuiction
                                                                                                              Corrrt ~zuersed l ~ e
 just request hat instead of me jumping up and down every                                              of                            ~if
                                                                          based on crclr~rissio~i euidewce c o ~ ~ c e m i d e ge ~ ~ c l a ~ r t ~ ~
 tune with regard to hearsay, that the questions be posed in a                             in the
                                                                          r~m~tbe~ship A~ynri              Bratherl~oorl.I'nctrrnl/y, the two
 mannerso that thenon-objectionablelnaterialsslie testifiesto             casesore clistir~g~rislinble     Oecnrrse ill i)a\vson noproof runs
could be sepal-ate fro111 that which would be hearsay."                  i~~tmcl~rcedat                                 oftrial c
                                                                                             ft~eprr~risl~~~~e~rtphase o m e ~ ~ i n g t l ~ e
Attorneys were admonished by the Court to stay within the                B~otherhood'saina orpmctices. rims, Dawson i~ruolued
 limits of A~ticle 38.072. Shortly thel-eafter,X began testimony                                                        f
                                                                         nrere/y testinmy, ouer objection, o nienrhership in a n
about an incident other than the one reported in the "sum-                                    on,
                                                                         o ~ g r ~ ~ i z n t iwit11 nlr acconipnnj,i~rg                    of
                                                                                                                             descriptio~~ tl~nt
niaiy." D objected on the grounds of "hearsay." HELD: D's                grorrp.
trial objection was specific enough to preserve the point for            PRACnCESUGGB?IOi\? It is ?lotdiffrrlt to ir~ragi~le                   that
appellate review. RATIONALE: It mas clear from the context               nm~~y                                            t o~~s
                                                                                  cnpital ~ ~ ~ r r r & p ~ o s e c r rin~ Tems luill involue
of trial that both the judge and prosecutor understood that D's                                        D's                 ill
                                                                         euiderrce co~rcemirrg ir~uoluen~ent prison gongs. 112
objectionwent tow1ietherX'stestimony fell outside tlie scope                         to
                                                                         co~~trnst Dnwson, Fuller sigrinls that in Texas tllis eui-
ofthe statuto~y   hearsay exception for outc~y  witnesses. It was        de~rce  ~uillhend~?~issibleaslo~~gcr~tbep,osec~~/io~         irrt~odrrces
clear under the facts that the disputed testimony concerned                                            tl~e                f
                                                                         euiderlce co~zcenrirrg illegalgonls o ~~zenrbe~ship                  iu or
material not covered by the sumnialy. In circumstances such                               with
                                                                         corr~~ection srrclr agnng. Q m R E Does this open the
as this, where the correct ground for exclusion is obvious to            &orfordeJi?~rsecortr~selto         irltrodrrcetestinzotrjr cor~cer~lirrg
the trial level participants, no waiver results fro111a genet-a1or       tl~e                                      in a
                                                                              renlities ofgnrlg r~rernbe~st~ip11i~~stit~rtio~~nlsetii~ig?
imprecise objection.                                                     For ewr~rple,      can Dpresmt testi~noq~          inrp!yi~lg t/Je "IIOII-
   NOTE: A majority of the Court further concluded that                  uolrrr~tnrg"    rlatrm o srrch a uolzr~rttr~y
                                                                                                   f                        nssocicrtion in l k l ~ t
   identifyingchallenged cvidence as hearsay (or as calling for          ofdn~~ge~si~~bermrt       in co~~firreri~e~rtin tl~estntepe~~ite~~ticr~:~~?
                                 be
   hearsay) should ge~rernl!~ viewed as a sufficiently spe-              Ifeuider~ce    thatapnrticrr1m'D isn nre~~rOerofn          mcist, tuhite
   cific objection.                                                                                                         D
                                                                         srrprenlacist gmrg is releunrrt to sl~ow is likely to be n
PRISERVATION: FAILURE TO OBJECT DID NOT WAIVE                                                     to
                                                                         corrti)lrring tl~reat society, is evidence that D Yoioirred to
ERROR FOUND IN CONSECUTIVE SENTENCE ORDER.                               srrruiue" er/rtal@ releuant io rejirte the issm offrttrrre dm?-
COOK, i\b 180-92; April 15,1992; Per C~rricrnr        Opirriotr.        gelorrs17ess - to show that D's nssociutio,r does >lotstem
Although discretiona~y      I-eviewn7= refused in this case, the                                     to tl~e         of
                                                                        f,am n cornnlih~~ei~t col~cept rul~itesrrprenlacJJ,                     but
Court of Criminal Appeals specifically noted its disagreement                     to
                                                                         rutl~er corrcetxsfor ser-preseruatio~r?
with the lower co~~rt's    holding that failure to object waives      WlTNESSE.5: JUDGE PRESIDING AT PRIOR TRIAL IS
error in a consecutive sentence order. Here D was convicted           COMPETENT TO TESTIFY AT RETROSPECTIYE COMPE-
                                                V O I C E FOR T H E D E F E N S E

  TENCY HEARING. HANSARLING, No. 129-91; march 25,                                                         of
                                                                        in the application parag~aph the ju~y            charge. f1e1-eD was
   1992; Opiiriorr h)~Jrrdge ~Willet: Jrrdges Cliiitorr, Bnird,                                                 of
                                                                        prosecuted for unlawful delive~y a controlled substance.
                             clisserrt.
   Ouerstreet, a n d Akdo~re)~                                          The trial evidence showed that X, rather than D, niade the
  D's case was abated for a retrospective competency hearing            actual delivery. That evidence showed D acted only as a
  under Article 46.02, Texas Code of Criminal Procedure. He             party. Despite the fact that the abstract portion of the court's
  had previously been convicted of murder in a trial at which                                                 that
                                                                        charge defined the law of pa~ties, lawwas not incorpomted
 Judge X presided. The issue in this case is whether Judge X            into the application paragraph. Because of that defect, the
  coi~ldtest^ at a later competency hearing or whether that             evidence was insufficient to support the only verdict of guilty
  testimony was prohibited by Rule 605 of the Texas Rules of            \vhich the jug, was authorized to return under the charge
  Criminal Evidence.                                                    given.
    LEGAL BACKGROUND: Rule 605 provides: "The judge                          COIIIIIIIEI\T, A/lhorfg/~  this case is reported 61 t l ~ ep~~
                                                        as
    presiding at the trial may not testify in that 11-ial a witness.                            o
                                                                             Cl~arpe"seetiorrf thesrrrmr,mries, it is critical to irote the
    No objection need bemade in olderto preselve that point."                reliejgrnrrted. Ibe Co~otJirrds    euiclerrce insrrficierrt luherr
 Here, after D had been convicted, Judge X retired. The                      r~reasrrredcrgcrirrstthecl~nrgegiuetr    ihejrrry. 1,r bottoitr lirre
                Y
 PI-osecutor[ Iat the ninrdcr trial was appointed to replace                        tl~is                 1e         o             f
                                                                             ter~rrs t,mrslates into 1 1 eirfr:)~f a n order o acqrrittal.
 him. The case was remanded for a retrospective competency                   Ybe issue ofproperjrr~ycl~arge,                         arr
                                                                                                                   thrfs, assrr~~zes iinpor-
 determination. Not surprisingly, the case was tcansferred to                tcrirce that nra), not bow hem accorded it in post j~eors.
Judge B for this competency Ilearing. At the competency                               I            f 1e
                                                                             W J ~ Isrrflcietq, o t 1 euiderrce to srrppoit corruictiorr is
 hearing tlie initial trial judge (Tudge X) testified without                wised oir appeal, the cictrrcrl chnige giuen to the jury
 objection; the julyfound D competent to stand trialat the time                                                                  t
                                                                             beconla crll inlporlarrt. Arr appellmt irr t l ~ acircrriiistcrr~ce
 of the murder PI-osecution.                                                 is not looking to thepropriet~~   oftlze colrrt's cl~nrge   illere&
 HELD: Judge was conipetent\vitness. RATIONALE: Rule 605                    as a uehiclefor reueisnl arrd retrierl.
 addresses only the specific sihlation where the trial judge            JURY INSTRUCTION: 'NEW" PAROLE LAW CHARGE
 steps down from the bench and becomes a witness in the very            UPHELD. OAKLEY, No. 367-91; Apri122, 1992 Opirrioir b y
 same prosecution or proceeding over which he is presiding.             Irrclge iWcConirick;Jtrdge Baird cor~crris;      Jrrclges Clirrtorz nird
 Rule 605 is not intended to apply to any fi~rthel-     proceedings     Mdo~rej,     disserrf.
 in which tlie judge is a participant, I-atlierthan the presiding                     of
                                                                        rlie Cou~t Criminal Appeals has upheld the "new" parole
 official.                                                              law juy instruction enacted follo\ving the constitutional
WITNESS: NON-RESPONSIVEANSWER -REVELATION                               31neqdmentto Article IV, Section ll(a).
OF D'S PRIORRECORD FOUND HARIMLESS. FULLER, ~\'o.                          LEGAL BACKGROUND: In Rose, 752 S.\V.2d 529, the Court
  70,881;icfarch 25, 19% Opiiriorr Dj~Jtrclge    Ouerstreet; Jrrclges      of Criminal Appcals held that the predecessor parole
 Canrpbell, Bnirct nirdBeimuida corrcrrr: Jrrclge Clirrton dis-            instruction statute [Article 37.07, Sec. 4(a), Texas Code of
seirts.                                                                    Criniinal Proceclu~-el   violated "due course of law."
During direct examination of an investigating o f k e r at 17s          The Court I-ejected D's argument that the constin~tional
capitalmurder trial: the officer was asked about notations and                          to
                                                                        ~mendnient Article IV, Section Il(a), of the Texas Consti-
signatures on a 11.Iirarrdnwarningfolni. When the prosecutor             ntion failed to correct the problenls identified in Rose.
asked about a pa~ticular    notation, the police officer stated, "I     Specifically, the Court rejected D's argument that A~ticle              1,
made the notation, obtained GED at TDC with high school."               jection 29 effectively supersedes all other provisions of the
Defense counsel asked the trial judge to instn~ct juty tothe            Sonstihltionnot found inhiicle I. 'She thrust of D's al-gument
disregard this statement and declare a mistrial. The judge              ,vas that "Bill of Rights" provisions fonnd in Article I should
responded, "Overmled." The following day defense counsel                :ontrol in the event of conflict. HELD: July instluction
reurged his motion for mistrial, arguing that the testinlony                                              I,
                                                                        ,rope!-. RATIONALE: A~ticle Section 29, should not be read
informed the juy that D had been in prison before and thus              o supeisede all other constitutional.provisions. As a matter
had obviously been convicted of a prior felony. The jury was            lf stahitoly constn~ction     principles, no part of the Constitu-
instructed to disregard.                                                 ion should be given a construction repugnant to express
HELD: Harmless error. RATIONALE: Error was not of                       mthority contained in another part of the Constitution if those
sufficientmagnitude to disrupt the ju~y's    orderly evaluation of        v
                                                                        wo sections can be harmonized.
the evidence. Although the comment about D's prior record               f there is an apparent conflict between two po~iions the          of
was iniproper and erroneous, it made no contribution to                                                                are
                                                                        :onstitution, two rules of constn~ction used to determine
punishment assessed.                                                    vhich provision controls: (I) specific provisions controlled
                                                                        wer general; (2) PI-ovisionsadopted later in time are given
JURY CHARGE                                                             :ontrolling effect. A majority of the Court viewed the
JURY INSTRUCTION: "PARTIES CHARGE" MUST BE IN-                          luthorization found in Article I\', Section ll(a) to d ~ a flaws    t
CORPORATED IN THE APPLICATION PARAGRAPH.                                mmitting jury instruction on pal-ole to be a "specific provi-
                  1
BIGGINS, A70.3 7-9O;Jnr11m1yS, 1992;I~erCrrricfnr          Opirrioir;    ion." Hence that sectionwas givencontrolling effect over the
                                                         nrrd \mite
Jrrdge Cliiilorr corrcrrrs;.Jirrlgesil.IcCor~trick,Mille~;              nore general provisions in Article I. Because the parole law
disse111.                                                               .lqr instruction amendment was adopted latel- in time, it
In this case the Coult of Criminal Appeals reaffirmed its                hould prevail as the most recent expression of the sovereign
               to
comniit~nent two decisions of last year [.Jones, 815 S.\V.Zd            will of the people.
667 and IValker(No. 896-89, defivel-edSeptetnber 12, 1991)l.              Accord, MARKS, No. 1204-91; April 22, 1992; Opinion by
Those cases held that in order for the jusy to be authorized to           Judge h.lcCormick;Judge Baird concurs;Judges Clinton and
convict D as a party, the law of parties must be incorporated             Maloney dissent..
                                               V O I C E FOR T H E D E F E N S E



          GRANTED PETITIONS FOR
          DISCRETIONARY REVIEW
    SinceJfdy 17, 1985, the ndnriizistra-       PDR 0093-92 04/27/72, 11l.orrtgorife~1      cou~t's failure to instruct the iuw on the
                                                                                                                            , ,
ti~'estafittori~eys   ofthe Cofrit ofCrimi-     Co., (St PDR), Rolmld IVqme I'o~rizf,       legality of appellant's stop tmder Article
ilal Appeals have con~piled,in the i z o ~      State's Appeal CDIVI): 1. \Vhether          38.23?
                 f           o
nznl cofrise o Dffsir~ess, list o cases
                                     f          defendant's request for charge on lesser
a n d legal i s m s on rrd~ich Cold~t
                              the         bas   included offense, for which statute of
gmiitedpetitiom for reuiem Alth~frgl~           limitationshad expired\vhenindictment
origirzall~!  piupnred for irrterircfl ffse     forgreater offense was rehli-ned,waives     PDR0349-92 05/20/72, LmnarCo., (A's
                    has
oizly, the Coff~t arrt/)orized rdease           any limitations bar for that requested      PDRj, Steven Rqr Ca~ridcf,   Deliueiy o f
o the listforpfrblicntioir n i ~forrrse by
 f                                d             lesser offense.                             l r r a i r a : 1 \Vhether the evidence
the betzch a~rd o T&YCIS. issrres
                   bar f          nie                                                       was sufficient to support a conviction
Listed are sfm~mnries tuorded b y the
                          as                                                                fol-tlelive~yofmnarijuanawhen a cl~ernist
s t c a a n d do not rreces~fril~ reflect ei-                                               who did not perform the analysis tes-
ther the reasoiziizg or the pl~rnseology        PDR 271-92 04/27/92, Harris Co. (A's        tified about the analysis results? Relies
lfsed by tlzeparlies or by the Corf~f.          I'DR), Carlos ileri~ra~r ~Mo~ztnno,
                                                                                  Ag-       on Cole, No. 1179-87,which is pending
    T7~efoNoir~i~i.g 1the cnsesmld issires
                    a    ~                                             f
                                                gmuated I'ossession o Cocaine witl~         on rehearing.
on ruhicl~ Cofrrtof CriiiriirnlAppe~fls
             the                                I~rteiztto Deliwr: Did the Court of
g,ar~ted   ruuiew brlt lul~ich Corrrt bas
                             the                Appeals niisconst~uethe decision of
ifofj~et  deliuered a furitten opiiriorr:       Crockett, 803//308, in holding the ar-
                                                resting officers had probable cause to      PDR0350-92 05/20/72, McLe~f~mrr       Co.,
                                                stop and search appellant?                  (A 's PDI?), D m i d Rice, Agyavated
                                                                                            Kidirapping: 1. Does Rule 105 of the
PDR 0065-92 03/04/92dkLe1111ni1        Co.,                                                 Rules of Criminal Evidence, I-equirean
(A's PUIO, Caluii~  Eclrunrd IVasb irfgto~r,                                                opponent of evidence to request an
Ca~~itd~lIirrfle~: the State entitled
                  1. Is                         PDR379-92,380-92,381-9204/29/72,            mst~uction  regarding the limited use of
to a copy of a tape recording of an             Brmos Co. (A's PDRj, Finis IVilsorr,        ceitain evidence at the time the evidence
inteiview between defense counsel's             Aggrcfucrted Robbeiy, Attempted Agg,zr-     is offered or may the opponent elect to
investigator and a witness called by the        uated l?obhe~y Robheiy: Did the trial
                                                                &                           request sucha li~nitinginstn~ctionin  the
state after that witness has been CI-oss-       court err in allowing jurors ask wit-       court's charge?
examined by defense counsel?                    nesses qirestionsat trial? See Allen, PDK
                                                                        ~a~~,
                                                540-91, B r f c l ~ n ~ PDR 560-91; and
                                                           I'D
                                                Alowiso~~, R 970-91.
                                                                                            PDR 0354-92 05/20/92, RanrinN Co.,
PDR 0070-92 03/04/92, D~rl/,llrsCo.,
                                  (A's                                                       (S/A's PDR), Lariy Erfgeue ilIcPhe~soif,
PDR), Louis Termrzce Borden; Deliuei:y                                                       Capitrrlntrrrdei:. 1. (State's) Where the
o o Cont~olled
 f               Sftbstn~rce: 1. Does           PDRO284-92 0Y20/72> TqlorCo., (A's          trial court gave four special issues with
Atticle37.07,§3(d)mandatea bifurcated           PDR), BillJ~Lym Stewzs, Aggmuated           thefowth beingaPeil~yissueandi\,llere
bench trial?                                    SesrmlAsscrrflt: 1. \Vliether the Court     the trial cowt initially assesses death but
                                                of Appeals el-icd in finding the State's    0nM.N.T. assesses life, did the Court of
                                                evidence sufficient to support a con-       Appeals err in reversing and ordering a
                                                viction for aggravated sexual assault       whole new trial? 2. (Appellant's) Did
PDR 0302-92, 0303-92 04/22/72, Pot-             when there was a material and fatal         rhe Court of Appeals err in holding that
IWCO., 'sI'DI<), ~Lll]lBLl~ler,  Deliue~y       variance between the name alleged and       a fourth special issue encompassing
o Dimepnnf: 1. Can sentences for
 f                                              the name proven.                            Perrrywasnot constit~~tionally    required?
convictions obtained in one trial be                                                        3. (Appellant's) Did the Court of Appeals
stacked on each other if no notice of                                                       err in not dealing ~ i t h     the double
consolidation was given by the the                                                          jeopardy inlplications which appellant
State. See § 3.04, P.C., and LaPorfe, I'DK                                                  contends bars the state from seeking to
No. 1206-70.                                    PDR 0315-92 05/20/92, Foi-t/3ei1dCo.,       impose the death penalty regardless of
                                                (A's PDR), Dauid Par11Reyrrolds, Driu-      wvhether any earlier verdict may or
                                                i~rg WhileIntosicated~ Did the Court
                                                                      1.                    may not have been illegal in its accep-
                                                3f Appeals err in upholding the trial       tance? W
                                               V O I C E FOR THE DEFENSE




          THE FEDERAL CORNER
                                                         by F.R. 'Euck"Files

    In 1896, the Supreme Court reviewed            In UnitedStflles u. I h r r a , F.2d -,       the District Cou~t's      ot-der suppressing
 a n instn~ction  given by a 1)istrict Court    1992 WL 145863 (Tune 30, 1992), and              the evidence relied on this testimony
 in a criminal case to a deadlocked jury        UniteclStflres u. Cree,; -F.2d - , 1991          from the r e c o d as to the officers' in-
 inanattetnpt to spur them into reaching       WL 178749 Ouly 30, 19921, the Court               terpretation of the consent given:
 a unanimous verdict. The instluction          could not agree as to what decision it            "THE COUK7': All right, Letme ask you this:
 accomplislied its purpose and the su-         should reach. In each case, seven                 On the basis of that oral [consentl, but his
 preme Court put its imprinlatur of ap-        judges agreed that the District Court             unwillingness to sign the consent, did you
 proval o n the procedure in UnitedSfnles      had correctly decided the issue and               feel that if youwanted to, you had the right
                                               seven judges agreed that the District             to brillg fire axes in, for instance, and chop
 u. Allen, 164 U.S. 492, 17 S.Ct. 154, 41
                                                                                                open the walls?
 L.Ed. 528 (1896).                             Court had erred. In each instance, the           TIIE WITNESS: I'es, sir.
    In 1988, the Supreme Court reviewed        Court has left the District Judges and           THE COURT: In fact, bringing a backhoe or
 a n d reaffirmed this procedure in            trial lawyers of the Circuit wondering           that sort ofthing and dig up the backyard or
 Loiue?2Jielclu. Pl~el/s,484 84.5 231, 108     what the law is - or what it will be.            underneath the foundation of the house?
 S.Ct. 546, 98 L.Ed.2d 568, rehearing             These cases are not concerned with            TIIE WITNESS: Yes , sir.
 denied, 484 U.S. 944,108 S.Ct. 1126,99        proceduralniceties rather, they areabout         THE COURT: Do you feel that you had the
 L.Ed.2d 286 (1988): "The continuing           the T7elyConstinttional issues that con-         right to disembowel the appliances and
 validity of this Court's observations in      front judges and prosecutors and defense         look into the minutia of the air conditioners
Alle~? beyond dispute."
        are                                    lawyers in the day-to-day world of               or the stove, the refrigerator, that sort of
                                               criminal law: In Ibflrra, the Fourth             thing?
   In the Filih Circuit, the approved
                                                                                                THE WITNESS: I'es, sir.
modified Allen charge is in the language       Amendment right to be fl-ee from un-             THE COURT: And you felt that you had all
 of the District Court in UuitedStates u.      reasonable searches; in Greet; the Sixth         of those rights based on this consent that he
Kinr~fzel,  777 F.2d 290, (5th Cir. 19851,     Amendment right to an i~npartial       juty.     gave yo11orally, even though he refused to
cert. denied, 476 US. 1104, 106 S.Ct.             Ibarra was a drug trafficking and             sign the fom?
 1947, 90 L.Ed.2d 357 (1986). [There is        ltioney laundering case from the                 THE WI'I'NESS: I'es, sir!'
some humor in K i m ~ ~ ~ e lthose of us
                                for            Southern District of Texas. Officers -              The following judges agreed that the
who have forgotten how to spell:               withoilt a !\arrant -had requested the           Motion to Suppress was correctly
Throughout the opinion, w e find the           brot11e1--in-lawof the owner of a resi-          granted: E GKADY JOLLY, POLITZ, Chief
word uodir (e.g., "Before your uerclit         dence to consent to a search of the              ludge, GARWOOD, JERRY E. SMITH,
can be accepted by the Court. . .").I          residence. Orally, he gave his consent;                               &I.
                                                                                                WIENER, Eh~lII.IO GAKZA and DehlOSS.
   So why, pray tell, are we spending all      later, he refused to sign a consent to              The following judges agreed that the
this time talking about Allen charges?         ieal-ch f o m .                                  X4otion to Supp1:ess was improvidently
The answer is simple: Because that's             During their search, the officers de-          granted: DUHE. KING, IWKE S. WIL
what we need to give the judges of the         ermined that the residence had an attic.         EIMIS,PATKICK E. HIGGINBOTKAM, \v.
United States Court of Appeals for the         Llsitlg a sledge hammer, they merely             EUGENE DAVIS. EDITH H. TONES and
Fifth Circuit in order to get them to          ised the sledge hammer as a tool to              BARKSDALE.
resolve some issues, decide some cases         3ush up the boards orusecl it to knock                                       of
                                                                                                   Under the autl~ority U~~jtedSfates        u.
and tell us what the law is.                         t
                                               ~ u tlie boards [The judges didn't agree         Holnres, 537 7F.d 227 (5th Cir., 19761,
                                               In that, either.] and found a million            the ruling of the District Court sup-
                                               iollars in cash, ledgel-s, and a money           pressing the evidence was affinned.
                                               :ounting machine. Since this was what               Greerwas a civil rights case from the
                                               he officers had been searching for,              Uorthern District of Texas in n,llich
                                               hey belie~redthis evidence to be in-             metnbers of t h e C o n f e d e r a t e
                                               :nlpato~y   and seized it.                       Hatmnerskins were prosecuted for
                                                 The issue before the District Court            :onspiring to vandalize Jewish busi-
                                               vas whethel- the officers exceeded the           lesses in Dallas and Euless, Texas.
                                               :copeof the consent they received. The              In Gtue~;the Court was concerned
                                               Xstrict C o u ~ granted tlie defendant's
                                                               t                                with the voir dire. The District Court
                                               dotion to Suppress.
                                                 The judges who would have revel-sed

                                                  F.R. "Buck"Fiies, Jr. is a charter member of the Texas Criminal Defense lawyers
                                                Association. He is board certifiedincrirninallaw and is a shareholder in the fintt of Bain
                                                     Allen and Wo~then Tyler, Texas.
                                                F~les,                    of
i                                                V O I C E FOR T H E D E F E N S E
I



1 I        FEDERAL IMPACT DECISIONS I

      1. UnikeriStates v. W&rd -P.2d-,            and remanded.                                      n r cases of obstruction of justice
                                                                                                      ay
     No. 89-10157 8th C r , September
                            i.                       In this case, the district court jvstified      listed in the application nates to
      19, 1990, amended November 6,               upward departufe based upon the                    Guideline 83Cl.l. In order to conclude
      19901                                       defendant's prior crinlinal hiitory and            that the defendant's olxmuction was
        ISSUE: Whether the dist~ictcourt's        on obstn~ctionof justice. The Goult                significantly more eg~~gious,   thelefore
     upward departure from the range cal-         concluded that both grounds relied on              justifying an upward departure beyond
     culated under the sentencing guide-          by the district court were pmper under             the adjustment reflected in the pre-
     lines was proper.                            the sentencing guidelines. Guideline               sentence report, the trial fflurt nlust
        DISCUSSION: Defendant was con-            g4A1.3 permits an upward deparntre                 make findingsto suppoa its conclusion,
     victed of three offenses: falsely repre-     "[ilf reliable information indicates t h t        and explain the reasons forthe extent of
     senting himself to be an officer of the      the criminal history category does not            the deparhtre based upon the findings.
     United States and, under pretense of         adequately reflect the seriousness of             The diirict couit nras also instructed to
     that a c e , knowinglyattempting an a a      the defendant's past criminal conduct              clarify theextent towhich it relied upon
     of extortion; demanding money by             or likelihood that the defendant will              the defendant's criminal history in de-
     falsely repmenting hinlself to be an         commit other crimes. . . ." Guideline             parting upward. If the upwrd depar-
     off~cer the United States; and extor-
              of                                 §3.Cl.I permits an increase i~ basethe             ture ms made to adequatelyreflect the
     tion and attempted extorMon affecting       offense level if the defendant "willfully          defendant's tiue uuninal history, the
     intestate. Under the federal sentencing     impeded or obstructed, ox attempted to             trial court must do so by analogizing to
     guidelines, the guideline range for a 11                            the
                                                 impede or obst~irct administration                 the uiminal history category in the
     three offenses was 3341 months. The         of justice." Although the departure                sentencing guidelines in which the
     district court imposed a sentence of 60     mtisfied the first rest, the Court w s             defendant's "tme history" places h i ,
     months in custody, followed by five         unable todetumine whetheritsatisfied               and state its reasons for the analogy.
    yeassof supervised conditional release.      the second test, i.e. whether the de-              Finally, the Cou~t   noted its prim deci-
    The defemknt challenged the district         parture w s reasonable, because the                sion in UnttedStetmu. Nosf+wttge~o,   909
    court's upward departure from the            district court Failed to sufficiently ar-          F.2d 363 (9th Cir., 1990), amended
    guidelines range.                            ticulate the extent to which he ielied             October 25, 1990 slip op 13527, in
       The Court fi~stnoted that its review of   upon each factor in depatting upward               which it held that prior convictions
    a departure involves two steps. First, it    from the giridelines range.                                 are
                                                                                                    ~ h i c h not counted in criminal his-
    must determine whether departute is             The case was remanded to the district           toly because of age should not auto-
    permissible on the grounds stated by         coult for resentencing with instructions           matically be considered as a basis for
    the sentencing coult; second, if such        to articulate the reasons for the depar-           u p w i d departure under Guideline
    grounds are proper, whether the sen-         ture and the extent to which the district          94A1.3 unless they \were similar in na-
    tence imposed umeasonable. If, in            cou~t   relies on each factor individually.        ture to the charged offense or were
    departing fmin the guidelines, the trial     In prticulal; the Court noted that the             indicative of the defendant's I-eceiptof
    mutt !elks upon factors that are al-         defendant's pre-sentence report con-               a substantiolpoaion of hisincome frvm
    ready taken into consideration in the        tainedanupwatdadjustmentof2polnts                  criminal liveldlood.
    guidelines, the departure is unreason-       For obstructionofjustice and the district          2, UnffedStafesuCambwa,          902F.Zd
    able and the sentence must be vacated        colut, therefore, could not M a r t up-            144 (1st Cir. 1990)
                                                 ward based upon obst~uction justice
                                                                                   of                  ISSUE: Whether lawful acts can be
                                                 unless the dcfendantk perjury was s g      i-      used as evidence of the existence o a  f
                                                 nificantly more egregious than theordi-            mspitacy to commit an u n l a ~ F act. ~l

                                                                                             Allmiy, 1ndi:rna in 1')44. Ile attended 1 n d l : i n ~
                                                                                               Ihc llnivcnity of inuisvillc law S c l ~ w (I.I3:,
                                                                                                                                           l
                                                                                                I a     t i 1 ~ ) (:i~arlie
                                                                                                                  7            w;~s n assisti&
                                                                                                                                    a
                                                               in lndiann for four years. Clrarlie war, nrl AssisraN llnited Stales Attorney fc&
                                                    @rixsec~~lor
                                                                                                                I)cp;~n~~~c~rt
                                                 '*thweyears, ran n joint t1.S. Justice I)e~~a~~r~r~it-'l'r~~as~~"/
                                                 &+
                                                  .
                                                                                                                             nimey launderigt
                                                 ynqwt in South I'loridn for llrrcc yeals (Operation Greenlnck), was Chief of tllc tl.ti>
                                                 ~@srict!
                                                 id..
                                                                                                                    for
                                                           lkparlnr(:nt'sNarculics and Ikiogerous l)n~gSection one ycx, and s c ~ c d
                                                 '4
                                                    two ywn as 1)eputy Awxiate Atrorncy General and on(! ycxr a s AsociJte ikputy;
                                                 > &ttomcy e ~ r c ni~ lthe U.S. Dopani~ient
                                                             G         n                      ofJusticc. Charlie is a ~nc~nhcrt h ~ l11(1krig
                                                                                                                                 cf     :
                                                 ?gJolid;~ and'fexas 13an. Clrarlk is cvrrently a pmtnrr at Jolmmn t+ (;il)h..andspecialixy
                                                                                                                                                k
                                                 !:h, whit): .$T ,;-.., e<;!,.".>>,, ..,*,, , ...
                                                       .pjrg, . and c...A, I..;.                           4.J... . , ;$ : :
                                                 -,#w. coll;~r.crjrne crilninal 1sx.nutter.i , .$ ,.,:;%... . ,;:.. ;,.: .&, &&
                                                                .,.
                                                                                  ?L<,                        L
                                                                                                               .,                ' '
                                              V O I C E FOR T H E DEFENSE

       DISCUSSION: Defendant was con-          broadcast newsworthy information.               had the duty to examine the conver-
    victed of conspiracy to dist~ibuteco-         DISCUSSION: General Manuel                   sions and specifically delineate its rea-
    caine, anti conspiracy to defraud the      Noriega, d e f e n h t ina highlypnblidzed      sons b r pplohibiting their broadcast,
    United States (a Klein conspiracy). He     case, is incarceratedat theMetropolitan         guided by the considerations set forth
    challenged the sufficiency of the el+      Correctional Center in Dade County,             in Pmss--t?terP,ise Co., Superior Court,
    dence offered to prove the existence       Florida. CNN obtained, from an un-              478U.S.I (1980 (involving a t~talcourt's
    and purpose of the conspiracy. Among       known source, tape recordings of tele-          decision tocloseapreliminary hearing).
    other evidence offered trial, the gov-     phone convelsations behveen Noriega            Thus, in older to justiw prior resnaint,
    ernment showed that defendantand his       and his counsel and desired to broad-          the bid coun would be required to
    co-defendant opened an account in the     cast the recordings. Noriega sought to          make speciFic factual findings that: (1)
    name of a propelty management com-        prevent CNN from broadcasting the               there is a substantialprobability that the
    pany they had formed. Over a period       reco~dings.    The district court ordered       defendant's right to a fair trial would be
   of nine months, they deposited and         CNN to produce the tape recordings in           prejudiced by the publicity; (2) there is
   withdrew $750,000 from the account,        CNN's possession so that the Court              a substantial probability that p i o r re-
   vi~tnallynone ofwvhich was used for the    could review their contents and decide          atraint would prevent that prejudice;
   stated purpose of the property man-        whether they could be broadcast. The            and (3) reasonable alternatives to prior
   agement company. Funds wexe wedto          district c o u ~ talso restrained further       restraint cannot adequately protect the
   make real estate and automobile pay-       braadcast of the recordings until it had        defendant's right to a fair t~ial. Fur-
   ments on defendant's own property, t   o   the oppomnityto reviewtherecordings.            thenmore, the district court must decide
   make loans to fund other of defendant's    CNN refused to produce tile recordings          whether disclasureof the tape recorded
   accounts, and to provide him with over     and appealed from the district court's          conversationsbetween Noriega and his
   $250,000in cash. Aseries of withdraw-      orders, characterizing the appeal as an         counsel would jeopardize a fair t~ial
   als were made, each of which was           emergency motion to vacate an un-               even if it determined that the recorded
   underthe $lO,M)OTreas~~ryDcparm~entconstitutional prior restraint.                        conlmunications w e not privileged.
   reporting irquirements. The Court held        After notmg that the case was not           Ifthecommunicationsweredetem~ined
  that there was sufficient evidence pre-    appealable in its then present posture          not to be priv&ged, snch would be
  sented at mial to pmve the elements of     because tempomy ~estraining           orders    relevant to, but not disposrtive of, the
  conspiracy, namely, a n agreement, an      are not ordinarily appealable, the Court        district coua's assessment of potential
  unlawful objective of the agreement,       indicated that CNN's motion was more            harm to rhe defendant's right to a fair
  and an overt act in furtherance of the     propflyviewed as a petition for writ of         trial.
  conspiracy. Among other evidence, the      nlandamus against the district court to            Whether the recorded conve~sations
  Court refened to the structuring of the    correct an abuse of disc~etion. The             were privileged depended upon
  tiansactions ina way desgned to evade      Court then discussed the district court's       whether the communications were in-
  Treasury Department reporting re-          obligations in balancing First and Slxth        tended to remain confidential and were
  quirements, and noted that the con-        Amendment issues presented by widely            made under circumstances reasonably
  spiracy statute does not ~equirethat       publicized criminal cases The Court             expected and unde~stood be confi-
                                                                                                                            to
  unlawful means be used to achieve the      noted that a trial judge has broad dis-         dential, the hvo-part test previously
  unlawFul goal of a conspiracy. Fur-        cretion in ordering the activities of his       established by the Court in UnitedSfntes
  thermore, it is not necessaly to prove     Cou~tand that it is his primary re-             u. Be& 776 F.2d 965 (11th Cir. 1985).
  tax evasion was the sole or even the       sponsibility to govern judicial pro-            Noriega had signed a release which the
  primarymotive of ofthecoconspirators,      ceedings in order to insure that a de-          Court assumed wvasvalid and evidenced
 or that the defendants knew the tax         Fendant receives a fair and orderly trial       his understanding that all of his tele-
 consequences of their activitia, in or-     which comportswith due process. Such            phone convelsations, including those
 der to prove a Klef~z conspiracy. Citing    iiscretion can include placing what             with his counsel, would be recorded.
  Uttited States u. Shern~etam,625 F.2d      may be necessay restrictions on palties         Under such circumstances, the Coun
 104 (6th Cir., 19801,the Court stated that  znd others involved with proceedings            concluded that the district court could
 iFa tax evasion motive plays any patt in    Zven though such restrictions affect            flnd that Nokga had no reasonable
 the scheme, the conspiracy to evade         First Amendment concern. Noting that            expectation of privacy and the gov-
 taxes can be made out even though the        he Supreme Cowt has held that the              ernment was, therefore, justified in re-
 scheme may have had other pulposes,         picst Amendment generally glants the            co~dingthe telephone convelsations
 sichas the concealnlentofothercrinles.      xess no right to info~mation        about a     with his counsel. On the other hand, if
 3. UnZtedStates v. Noriega,917F.2d           ~ i a lsupelior to that of the general         Noriega intended his conversationswith
 1543 (11th Clr. 1990).                      ~nblic    CNixon u. 1Varrzer Commtrnica-        wunsel to beconfidential, even though
     ISSUE: Whether a trial court can        'ion&h c . , 435 US 589 19781, the Court        he signed a release, the district court
       he.'
order t pnorrestwnt of the broadcast
                   .
of tape lecordmgs ' of mnversations
                                             Jated that the general public had no.
                                              ight of access to private commnnica-
                                                                                             ivouldkrequirecl todetemine whether
                                                                                             he expectation was reasonable.
between a defendant and his counsel          ions between a defendant and his                   The Court concluded that the First
while the Court reviews the contents of     counsel. However, First Amendment               Amendment interesrs of the press and
those recordings in order to deternine      protections cannot be overcome by a             the pubhc would best be sewed by
whether the defendant's Sixth Amend-        concluso~y     representation that public-      immediate production of the tapes hekt
ment right to a fair trial outweighs the    ity might hamper a defendant's light to
broadcaster's First Amendment right to      a fair trial. In this case, the trial court
                                                  V O I C E F O R THE D E F E N S E

Federal Corner                                     Autopsy Report                             muscular activity prior to death
 Corrtirzmdf,onr page 30                                                13
                                                   Corrtir~~~edfrorrzprfge                    will decrease the ATP, increase
                                                                                              the lactic acid, am1 speed up the
                                                                                              onset of rigor mortis. Rigor
  had himself conducted the voir dire                       giveninestimatesinfairlybl-oad    mortis usually appears 2 to 4
  examination of the panel. Prior to voir                   intewals. Numerous factors        hours after death and is usually
  dire, the defendant's lawyers had sub-                    can be included in estimating     fully developed in approximately
  mitted a PI-oposedquestionnaire wvhich                    the time of death, each with      6 to 12 hours. There are in-
  contained these questions "[Wlhat is                      their own limitations. A good     stances, however, in\vhich I-igor
  your religion?",  IDlo you regularly atteml               investigation and good wit-       mortis has been present inime-
  church, temple or other religious sel--                   nesses are the most helpful       diately following death. This
  vices?,"and "[Dloyou hold any offices                     factors in determination of the   is usually seen with excessive
  in your church, temple or religious                       time of death. Thel-eis no time   muscular activity prior to death.
  01-ganization?". Other information on                     of death test.                    It may be delayed or absent in
 the questionnaire concerned the usual                    (1) Livor mortis (lividity): This   emaciated and elderly individu-
 inquiries as to occupation, family and                   describes the red to purple dis-    als andmay be rapid and pro-
 the activities of the potential jurors. The              coloration in dependent areas       nounced in infants. Incmased
 District court refuse to include the                     of the body secondary to            temperahlre accelerates rigidity
 question concerning the religious af-                    unoxygenated blood. Lividity        and cold will delay the onset
 filiation of the jurors.                                 usually appears within 2 to 4       and prolong its presence. Rigor
    The District Cowt asked questions of                  hours of death but may appear       mortis disappears with decom-
 the panel as a whole which resulted in                   antemortem in persons suffer-       position.
 two jurors being struck for cause.                       ing a prolonged, progressive        (3) Body temperature: Many at-
 Thereafter, the District Cou~t   questioned              tem~inal   event.                   tempts to determine the time of
 each of the 53 prospective jurors indi-                 Maximum color is usually             death based on body tempera-
 vidually and at least 13 of these ex-                    present from 8 to 12 hours fol-     ture postmortem have been
 pressed hesitation as to whether they                    lowing death at which time the      made with little success. I'ost-
 could be impartial.                                      lividity is described as "fixed."   mortetn tempel-atures d o not
    The judges who believet1 that the                     I'rior to this, the lividity will   decrease in a uniform or linear
 District Cou~t    had properly conducted                blanch when compressed and           fashion and the antemortem
 the voir dire posed the issue as follows:               shift if the body is turned or       temperature and environmental
 "The issue is whether sufficient ques-                  rotated. Fixation occul-ssnrhen      temperature affect the body
 tions were asked to ferret out bias, not                the blood and surrounding            temperature. Clothing and
 \vhether specific questions were asked."                 perivascular fat congeal and        obesity retain heat whereas
    The judges who would have reversed                   compress and trap the blood.         cachexia, lack of clothing and
 the District Court phrased the issue                    Fixation can occur sooner than       small i~lfantsn~illlosel~eatmore
 dirferently: "\Vhether the questions                    8 to 12 11ou1-swith accelerated      rapidly. Body heat is lost by
 posed by the District Cou~t      were suffi-            temperatures and decomposi-          conduction (absorption of heat
 cient to protect the parties from the risk              tion, or may be delayed with         by objects incontactwith body),
 that jurors with such disqualifying bi-                 cool temperatures. I'ressure         radiation, a n d convection
ases 61-  prejudices \vould be selected."                dependent points (example:           (movement of air).
These judges pointed out that the re-                    buttocks and back) will be           (4) Deconlposition: The onset
quested question concerning the po-                                               and
                                                         blancl~edpostn~orte~~i the           of decomposition is dependent
tential jut-0s' religious affiliation is                 blood will bedisplaced latel-ally.   on the environment and the
standard on the ju~y questionnaires                      Lividity nlust not be confused       state ofthe body at death. Hotter
used in theState courtsinDallas County                   with bruising.                       clinlates accelerate visible tle-
and is reconimended for the Federal                      (2)       Rigor mortis (rigidity):   composition. After death bacte-
cou~ts. Citing the Sixth Amendment                       Rigidity, or "hardening of the       ria from thegastrointestinal tract
gualantee to a n impartial jury, seven                   muscles" begins with death                        and
                                                                                              PI-01ife1-ate invade the u s -
judges wrote,                                            and is due to the loss of ad-        cular system leading to decom-
    "The questioning of prospective jurors at            enosine triphosphate (ATP) and       position. This occurs more
voir dire is critical to preserving that right.                              of
                                                         the accun~ulation lactic acid.       rapidly in patients who are sep-
'Without an adequate voir dire, the trial                A T is used as the energy            tic since the bacteria have al-
judge's rrsponsibility to remove prospec-                source for all cells and espe-       I-eadyinvaded the blood stream.
tive jurors who will not be able irnpa~tially            cially for muscle contraction.
tofollowthecourt'sinstmctionsand evaluate                                                     Earlier signs of decomposition
the evidence cannot be fulfilled.' Rosdes-               Cells are normally a liquid me-      are green discoloration of the
Loperu. UrrilcdStfltes,451 U.S. 182,105S.Ct.             dium and as death ensues the         abdomen which then becomes
1629, 1634, 68 L.Ed.2d 22 (1981) citing                  cells convert from a fluid to a      generalized. "Marbling"(green-
Collrrors u. Ur~ited  States, 158 U.S. 408, 15           jell-like consistency. All cells     black discoloration of blood
S.Ct. 91, 39 LXd. 1033 (1895).                           are affected simultaneously,but      vessels produced by hemolysis
                                                         the nluscles manifest the change     in blood vessels and reaction
                     Corrtinrredorrpnge 3 7              most dramatically. Any violent       between hemoglobin and hy-
                                                                                                                           33
                                           V O I C E FOR THE DEFENSE                 .
       drogen sulphite) develops in               monly deposited in the daytime            venous catheter insated h l  em
       the trunk and extremities. The             sholtly after death and unconl-           the clavicle into the subclavian
       face, and evenhially the whole             monly at night. Once hatched,             vein.
       body, swells or bloats due to              maggots progressively grow                f. Thoracotomy-incision, usu-
       bacterial gas formation. Bullae            larger to reach pupa stage. Or-           ally into the left chest cavity to
       or vesicle format~on   with skin           dinarily this takes 6 to 10 days          gain access to the aorta which is
       and hair slippage also develop             and eggs usually do not hatch             c~oss-clamped   and to allow the
       as decomposition progresses.               for 1 to 2 days. Adult flies              pericardium to be opened and
       The rate is variable but in very           usually do not form for 12 to 18          the healt to he manually mas-
       hot environmentssuchasTexas,               days. The g r m h and develop-            saged.
       a body can moderately to                   ment rates are quite va~iable,            g. Tracheostorny - incision
       markedly decon~posein 24                   however, and an entomologist              into the midline of the neck to
       houls. Cold weather and cold               may be necessaly for more ex-             place an emergency ainvay into
       water retards decomposition,               act dating of stages of insects.          the tlachea to ventilate the pa-
       and infections (sepsis) acceler-           ( )Scene markers: This is often
                                                   8                                        tient.
       ate the plocess. Dry climates              themost valuable piece of infor-          h. Lapamtomy - incision into
       may p~omotemummification                   mation as to the time of death            the abdomen to explore for In-
       rather than decomposition.                and includes such things as the           juries.
       6)Vitreous fluids: Analysis of             last time the person was known          4. Identeing features: this sec-
      vitreous humor from the eye                alive, witnesses, the last news-         tion usually emmerates various
       givesvaliable results depending           paper picked up, mail dates,             identitjmgfeah~reswhichinclude
       on the late of decomposition.             food on the table, clothing at-          scars and tattoos. The scals may
      In the past, much emphasis was             tire, and TV schedules.                  demonstrate previous elective
      placed on the late of develop-             d. General external examination:         surgeries or reveal previous
      ment of vheous potassium to                The general features of an mdi-          emergency surgeries from other
      the time of death. Virreous                                       in
                                                 vidual are desc~ibed this sec-           traumatic previous emergency
      potassium is increased in the              tionandindude colorandlength             surgelies fiom other traumatic
      fluid as time interval inaeases            of the hair, color of the eyes,          events. Tattoos may be single or
      but anything which increases               length and weight of the body,           n~ultiple, simple or conlplex,
      decomposit~onalso    increases the         symmetry of the body, and               cryptic or artistic.
      rate of release ofvitreous potas-          ovaallgroomipg. Also included           Many tattoos are symbolic of
      sium.                                      in this area are descriptions of         prison gangs or aberrant lifestyles.
      (6) Gastric emptying: In the               such features aspetechiae ofthe         It is clearly demonstrated that
      past a was believed that meals             eyes, and description of the            those with tattoos have a higher
      emptiedfromthe stonlachwithin              genitalia.                              than average incidence of un-
      appmximately 2 h o u ~ after in-
                               s               3.Evidence of treatment: Many             natural deaths.
      gestion. This is not necessarily         pelsons ale t~ansported    from the       5. Evidence of inju~y 11): In
                                                                                                                  (see
      true and individuals vary from           original place of injury to hospi-        this area should be an organized
      day-to-day with emptying times           tals where they are eventually            documented format which de-
      even with the same meals. Flu-           pronounced dead. In the Emer-             scribes injuries. Once these in-
      ids empty faster than solids and         gency Roomand OperatingRoom,              juries have beenenumerated, itis
     larger meals have longer empty-           la~ge   numbers of procedures ale         unnecessaryto repeat them in the
      ing times than smaller meals.            perfouned and a variety of tubes          remainder of the report.
     Studieshave indicated that di-            and lines alE inserted. You need          6. Internal exmninatwn: Within
     gestive time for an average meal          to he aware of the more common            this section should be the de-
     may be as long as 4 to 4-1/2              tenns:                                    scription of natural disease pm-
     lours as compared to the past              a. Endotracheal tube - tube              cesses as well as description of
     belief of 2 to 2-1/2 houn. Per-            inserted into the nose or mouth          normal anatomy. Often, how-
     sons with head injuries may be             and to the           airway to           ever, injuries which were not in-
     autopsied 2-3 days after an in-            ventilate a patient.                     duded in the original Evidence of
     jury and the stomach may con-              b. Nasogastric tube - tube in-           Injuy section, are described here
     tain portions of the last meal.            serted into the nose into the            as well. Careful review of this
     (7) Insect activity: Different             stomach to decompress the                area for other inju~iesis neces-
     insects are attracted to different         stomach and plevent vomiting             sary. The format ranges from an
     stages of decon~position. Fac-             and aspiration.                          organ by organ review to a brief
     tors which influence the rate of           c. Foley catheter- inserted into         description of salient internal fea-
     decomposition affect what type             the urethra to decompress the            tules with a qualirying statement
     and the rate insects leach the             bladder and monitor renal out-           that the remainder of the organs
     body. Flies are the most com-              put.                                     are un~emarkable. Within the
     mon insectsand tend to lay eggs            d. Intravenous catheter -an IV           intemal examination, other fea-
     in the orifices and in open                line to deliver fluids to patient.       tules such as volume of urine,
     wounds. Eggs are most com-                 e. Subclavian catheter and intra-        quantity of gastric contents, and

34
                                       V O I C E FOR T H E DEFENSE

surgically renioved organs is in-             content in the vitreous humor         Burning Dawn thewoodshed
cluded.                                       and ethanol is water soluble.         Continuedfmmpage 18
7. Microscopic examination:                   Although the numbers tend to
Mimscopic sections are abso-                  va~y  from study to study, there is      Dr&u. Ho&eadr757SW2d909CTe~.
lutely necessary in most natural              a near one to one ratio of vitre-     App. - Beaumont 19881, supra.
disease cases, pending cases, or              ous to blood ethanol content             FEDERAL RULE: Same.
undetermined causes of death.                 with slightly higher on the vit-         C M L RULEI Same.
Theyarenot, however,absolutely                reous side of approximately 1.2          RULE 201 Cfl Time of taking no-
necessa~y t~amatic
           in          deatheases.            to I. As the blood is absorbed it     tice. Judicial rzotrce may be taken st
When questions concerning age                 is rapidly nletabolized in the                      f
                                                                                    any stage o tbepmceedi~lg.
of injuries are known, then micro-            liver and is also excreted in the        COMMENT: "Any stage of the pro-
scopic sections may be helpful.               urine whichalso lags behind the       ceeding" clearly indicates appeal.
This is most often seen in child              blood. The urine is approxi-          However, as discussed in the comment
abuse cases. An exact age of                  mately 1.3 times higher i urn-
                                                                          n         to 201 (dl, supra., the act of taking
injury cannot be given, but in-               centration than theblood, but         judicial notice of appeal is always dis-
stead ranges of ages are more                 this canvary. Rate ofabsorption       cretionary.
appropriate. The ranges of ages               is delayed with food, but in             Odlna~ily,    the appellate coutt will
must take into account historical             general one can consider that         take iudicial notice on appeal if the
infom~ation,  autopsyfindiigs,and             one &tnk increases the blood          recorh is dewloped to &       t    point to
microscopic findings.                         alcohol levelapproxitnately,015       demonstmte judicial notice could have
8. Findings section: Either at the            to .02 percent. Also one d~ink,       been properly taken at trial but was not
end or at the beginning of the                or ,015 to .02 percent ethanol is     taken because no request to do so was
report, there should be a sum-                metabolized per houi. Only            made at t~ial.Taking judicial notice at
mation of autopsy, historical, and            lough approximations can be           the trial c o w level will only become
toxicologic findings. Usually the             made for the number of drinks         mandatory by the proponent making a
number one finding (the cause of              an individual has consunled.          timely request and supplying the nec-
death) is listed fmt with subse-                Deconlposition can cause etha-      essary sourcematerial ifrequestis made
quent suppoaive fiidingsfollow-               nol production by bacterial fer-      under 201 (b) (2).
ing sequentially.                             mentation and this must be con-          Apparently, judicial notice may also
Investigative findings are also in-           sidered when ethanol is present       be taken during post trial proceedings
cluded because they may sub-                  in a decomposed body.                 in the trial court upon timely request
stantiate or indicate what infor-             b. Acid neutral screen: Dnlgs         and production of necesmly source
mation led the pathologist to a               detected in thii screen have acid      mateiial.
specific opinion.                             characteristics and when placed            n
                                                                                       A unresolved dilemma exists as to
                                                                                         -

(Example: a gun was found in the              in an acid medium they can be         whether or not the appellate coua in a
deceased's hand, supporting a                  extracted.                            criminal case can take judicial notice for
suicide manner of death).                      Dn~gs   detected in this area con-    the first time onappeal to sustain a jury
9. Conclusion section: The                    sist of barbiturates, meprobam-        verdict. The problem presented here is
conclusion section may be long                ate, phenytoin, and doriden.           that 201 (g), infix., requires a jury in-
or short but should describe in a              c. Alkaline screen: D~ugs      de-    struction that the juy is not bound to
simple fashion the cause and                   tected in thii screen have alka-      accept as conclusive any fact judicially
manner of death.                               line (or basic) characteristics       noticed. If a fact is judicially noticed. If
 10. Toxicology section: This                  which in an alkaline medium           a fact is judicially noticed for the f i t
may be included on a separate                  can be extracted. Drugs which         time on appeal, then the defendant is
page or below the conclusion                   can be found in this Category                     of
                                                                                     dep~ivetl this permissive instruction
near the signature block.                      include amphetamines, cocaine,        whereby the jury wuld have rejected
  a. Alcohol screen: The alcohol              benzodiazepines, tricyclic anti-       the judicially noted fact [see US. u.Jones,
  screen is routinely perfornled on            depresmnts, synthetic narcotics       580 F2d 2x9 (6th Cii. 197851.
  blood but may be evaluated in                (codeine, meperidine, vicodin),          However, ProfessorWellbornbelieves
  other body fluids. Blood al-                 and antihistamines.                   that the appellateeourtcan take judicial
  cohol rises &st, following ab-               d. Narcotic screen: Several dif-      notice in a criminal case of an adjudi-
  sorption from the stomach and                ferent types of screens and tests     cative fact in order to sustain a jury
  small intestine with subsequent              can be done for narcotics, but        verdict. Wellborn argues that such
  distribution to the rest of the              generally what is detected in         actionis permitted by 201 (D and would
  organs. Vitreous humor is se-                these screens are the opiates         not violate 201 @ (see \Veilborn ' 3 -
  questered and only receives al-              which include morphine, co-           dicial Notice Under Article I1 of the
  cohol from diffusion from the                deine, and dilaudid rn                Texas Rules of Evidence" 19 S L 1, at
                                                                                                                        MJ
  cells and blood vessels of the                                                     24-20.
  eye. There is a time lag of ap-                                                       LEGAL AUTHORITY:
  proximately 1 to 2 hours for                                                          "JudicialNotice Under Article I1 of the
  alcohol to be abso~bed    into the    This atfic6ewill be continued rm the mwl
  vitreous. There is a high water       imre ofvoice.                                                   Continued olr twtpage
                                                                                                                            35
1
I
                                                     V O I C E F O R THE D E F E N S E

     Burning Down the Woodshed                        Parole Revocation                             The federal offender whose Pre-Sen-
     Cot~ti~?ltedf,om
                    page33                            Continued~ompage
                                                                     16                             tence Report and sentence reflects that
                                                                                                    a questionable Texas parole revocation
     Texas Rules of Evidence" Wellborn,               parole panel has set for release, The         counted against hissentence should get
     supra.                                           board membe~s'signatures may be               a lawyer, or get to k n w a good "writ
        Sparknzan u. State, 519SW2d 852 flex.         "stamped" on the minute sheet, but n o        writer."
     1985>,supra.                                     board member sees or reviews the files.        Conclusions and Comments
        Got~zalesu.  State, 723SW2d 746 flex.         [Ex Parte Willdams, Snfra,)                      We hope the secret procedures of
     Crim. App. 1987) Courts of Appeal in                Inotherwords, staffhas beendirected        gmting and revoking parole are gone
    Texas may take judicial notice.                   to do what the law and the rules say          forever. When these legal problems
       D2td@stucitS~1rutyon-S1cpp@u.       AZanto     only the Board can do. As near as we          and theories we have attempted to
     &p., 686 SW2d 351 [Tex. App -San                 can tell, this has been going on since        address ale finally resolved by Courts, if
    Antonio 19851, supra.                             1989, and there is no way for these           we are correct, a great number of citi-
                             f
       A4at7inez u. City o Sun Antonio, 768           wliters to know how many people have          zens d l be affected one way or the
    SW2d 911 (Tex. App. - San Antonio                 been released or l-euoked by the staff.       otha. In either case, a serious concern
     l989), supra.                                       H. The Effect of an Invalid Revoca-        to these writers is that those in a posi-
       MCCZLNOI~~      u State, 744 SW2d 74           tion Resultim From a New Criminal             tion to control management of the pa-
    (Tex. App. - Ft. Worth 1987). Texas               Conviction. (Yon mean that good time          role system at the time these issues
    Courts reviewing criminal cases have              I Lost?)                                      were raised did not do the best job of
    held that judicial notice may be takenat            Article6181-1Sec. 4ofVernon'sTexas          management.
    the appellate level of facts that were not        Statutes (the Texas good time statute)           Parolemanagement knew there were
    judicially noticed by the trial court.           was revisedin 1987to prohib~t who  one         serious questions regarding the legality
       Lewis u. State, 674 SW2d 423 (Tex.             has had a pafole revocation Fromretain-       of these revocation procedures. This is




                               .
    App. - Dallas 1984).                             ing the "good time" earned prior to h i d      supported circumstantially by the fact
       Cleontes u. City o Lamdo, 777 SWZd
                           f                          her parole, if returned to prison as the      that after the revocation system was
    187 (Tex. App. -San Anronio 1989).                result of a revocationbased upon a new        removed from Boafd detenninationand
       FEDERAL RULE: Same.                            conv~ction.   Recent legislation, however,    delegation of authority was granted to
       CNIL RULE: Same.                               (Senate Bill 11671,allowsthatthe prison                                    the
                                                                                                   Divisional staff en~ployees, changes
                                                     administration m a j grant a one time
                                                                             ~                     in administrative procedures and d e s
    This anicle rurll be corzlirnred in the rzetrt   restoration of such forfeited good
    isrue o Voice.
          f                                                                                        of revocation were never made public.
                                                     time.                                          When lawyers attempted to obtain
                                                        If the revocationsconducted between        w~itten  policy legalding the revocation
    Time To Win the War                               I989 and 1992 are not legal, those           system they w a e told no new rules
             f
    Cot~timredm m p a e 14                           pelsons whowere subjectto revocations          involving revocation were in effect.
                                                     based on new convictions, and lost            Ceminly such a denial is evidence that
    needs to be redirected towards educa-            their pre-parole "good time' should be        someone within the Division was at-
    tion, tteatment, and rehabilaation.              granted, at least, some rclief.               tempting to conceal what was actually
       If we are really interested in getting           If so, the classification depalrment at    going on. Since it appears that the
    organized crime out of the drug busi-            the Institutional Division Cstill called      Divisionknew therewas a problem, the
    ness and reducing the pervasive street           T.D.C. by many) could be getting some         Division's failure to seek an Attorney
    crimes of violence we are all too famn-          overtime recalculating the time credit        Geneid opinion on theseissuessuggests
    iar with, perhaps these goals can be             and palole eligibility dates for these        that the Division did not want to know
    achieved the same way we achieved                offenders.                                    the answer. Either way thcle is a
    them when w repealed I'rohibition.                  Another potential area of concern is       questionof management thatshould be
    Prohibition lasted from 1920to 1933. It          for those offende~swho have been              examined.
    took u s thirteen years to lea111 that           released to parole in Texas, but while           Ah well, maybe this is how we will do
    lesson. The present "War" has been               on parole were atrested on a federal          things in "the New Texas." While we
    going on for more than twenty-five               charge. If such person is convicted on        have n o objections to the management
    years When some of our judges, who               the new fedeml charge, revoked on the         in the New Texas, if curlent revocations
    see hundreds of cases a year, arc wam-           stare parole, and then sentenced unde~        are an example of what "the New
    ing us about both a present and inl-             the new Federal Sentencing Guidelines,        Texas" vill allow in the criminal justice
    pending disaster, it is time to listen.          the slate revocation increases one's          system, thenwhoisgoingto be assigned
      The way to win the "War" is to:                c~irninal  history score under the federal    to oversee the legality of the systems of
       1) Educateandrehabilitateouryouth;            sentencing guidelines, and will have          parolewhele some offendergets hauled
    and,                                             increased the guideline range at the          away from his family, and sent b a ~ to k
      2) Suffocate o~ganizedclime and                fede~al   sentencing.                         prison for a parole violation, unless it is
    street critne by denying the d ~ u lads
                                          g             Offenders who may fit within the           the criminal defense bar. It obviously is
    and dnig pushers access to the huge              above mentioned facts should know             not going to be any state agency. So it
    profits ciurent p~olubition  affords..           any Texas revocation may be subject to        is going to have ro be the c~iminal
      Ii~ceIpts1uiih permission o The Drug
                                 f                   question, and should keep an eye open         defense bar.
    Policy Letter, 6opyrig1t 1992, the Drug          for cases out of the Texas Court of              We have had a lecent example of the
    Policy Foundation, IVashrrgton D C.              Criminal Appeals related to these issues,     need for the criminal defense bar to
                                            V O I C E F O R THE D E F E N S E

 keep a better eye on the establishment      muster. Otherwise w e in the criminal            Services Oversight Committee recom-
 of new procedures by the T.B.C.J. and       defense bar should challenge this pro-           mend to the State Bar Board ofDirec-
 the divisions of criminal justice under     cedure until it does pass every constitu-        tors that we terminate our interagency
 that Board's control. The T.B.C.J. re-      tional test.                                     contract with the Boardof Patdonsand
 cently changed the rule regarding pa-                                                        Paroles and that we discontinue our
                                                                                                             in
                                                                                              partic~pation the Counsel for lndi-
 role of one who has had a death sen-        STATJ3 BAR OF TEXA5                              gent Parolees Project for adult parol-
 tence commuted to life. Inthe past such     Nownher 5,1987                                   ees.
 a case has beenvoted by a parole panel,
 as would b e any other offender subject     The Honorable Sam Bmer                           Sincerelv.
 t o parole consideration. That means to     P. 0 Box 776
                                                 .
                                                                                              W.C. ~aiiowe
                                             Marshall, Texas 75670                            Director. TEXAS CENTER FOR COR
 make parole one would need two of the
 three votes. The new rule change                                                             MCTIONAL SERVICES
                                             Dear Judge B a x m                                Gy to. Clifton I. Holmes
requires thatsuch offendergetthewhole
parole board (eighteen n~enlbels) to                                                                   Judge Robert D. Jones
                                                I have not received any communication
                                     h
vote infwor of parale release. W ~ t the     from the Board of Pardons and Paroles
exception ofthe ChaimmoftheT.B.CJ.,          subsequent to our meeting with them
who is reported in the press to have         wherein we exjxessed our concerns about              Parole staff members relinquish
stated hisconcem, we knowof no other         the procedures adopted by them for deter-                     power to board
person on that Board who noticed, or if      mination of the need for attorneys at parole       From the Austin American-StflIesn2flIZ,
they noticed, seemed t o care, about the     revocation hearings.                                              7-10-92
                                               Their procedures, which include the                 By Bob Banta and Jim Phillips
difEmence in the ex-post-facto law in        completion of an Attorney Determination                  Amer~can-Statesman  Staff
the Federal Constitution, and that pro-      Worksheet by the con~plaining     parole ofi-
vided in the Texas Cohstitution. In          cer which answers questions which should            The Texas Pardons and Parofes Division
Texas, unlike the Federal Constitution,      he answered only during a formal hearing         staff onThursday relinquished its power to
ex-post-facto applies not only to crimi-     and whichpmides theonly basis fordecid-          revoke and reinstate inmates' paroles, a
nallaw, but also to civil and administra-                   or
                                             ing wl~etl~er not a parolee is entitled to       decision prompted in part by the furor
tive law.                                    appoirned legal counsel at hisher revoca-        surrounding murder suspect Kenneth
    When the new revocation rulesare in     tion hearing, w11l certamly intens~Fy     com-    McDuff's release from prison.
place, w e hope they are public record       plaints by attorneys about the apparent             Effective immediately,such decisionswill
without the defense bar having to make       unfairness of the revocation hearings. Re-       be reserved for the Board of Pardons and
                                             cruitment of attorneys to participate in the     Paroles, whose 18 members are appointed
a n issue of the fact. If the Board          program already has become very difficult        by the governor, said Bob Owens, ditector
declines t o conduct panel revocations,     because of the perception of many attor-          of the parole agency, a division of the
but continues the practice of using          neys that current procedures are basically       Department of Crhninal Justtce
hearing officers, or "designees" as fact    unfair and do not meet the requirements              The sudden policy change occurred qui-
finders, then something must be done         outlined by the Federal Couns or of the          etly 'lllursday morning, while the Texas
about the quality of these procedu~es,       opinion of tlre Texas Attorney General           Senate CriminalJustice Committee held the
and the abilities of the "designees"        concerning the requirement for counsel for        first of several hearings on parole practices,
conducting the hearings. We hope the         indigents at parole revocation hearings. It      includingMcDufPsparole and the influence
board's policy complies with the Con-       has already been suggested by some Bat            that parole consultants wield on behalf of
stitutional requirements of Moirissey       leaders that the State Bar should dissssoci-      prison inmates.
                                            ate itself from the Counsel for Indigent             The t~ghteningof pamle authority was
tinfra).                                    Parolees Project for adult parolees since our     sparked to some extent by parole officials'
    What should we look for in a revo-      oarticiaation tends to zive credence to           handling of the McDuff case, which became
cation procedure?                           proce&res which are b&ically unfair. We           public after h!s arrest in May.
    1. Decisions which are nlade by         havealsohadmanvmmdaintsbvattornevs.                  McDulf, 46, was charged with capital
Board Panels,                               many of whon~      rekuse fbrther p&ticipat&n     murder last month in the deaths of Vatencia
    2. Such decision should be made         in the project, that the Board of Pardons and     Kay Joshua of Bryan and Melissa Northrnp
based on complete and well constructed      Paroles' hearing officers act more as high-       of Waco. Police say he is a suspect m the
reports, Cnot summaries) reviewed in-       handed prosecutors than in thew proper            disappearances and slayings of other Cen-
dependently by each panel member.           role of Jmparttal hearing officers.               tral Texas women, including Colleen Reed
                                               While I have spent yearsconvincing attor-      of Austin.
    3. Such reports should be the result    neys that participation in this project is           The parole board granted McIll~fPs      rb-
of a hearing conducted by "designees,"      wortlmwhile and that only th~ough par-our         lease from prison in 1989. The agency staff
who are sufficiently trained to un-         ticipationcanwehope to ensureimplernen-           revoked his parole in September 1950 be-
derstand the legal and evldentiary          tatiun of fair revocation procedures, I am        cause of allegations that he threatened a
issues with which they are dealing.         coming around to the other view. If the           teen-ager. Three months later, the agency
  4. These reports should be free of        Board of Pardons and Paroles persists in          staff released him on parole again
biasand subject to review and objections    their Attorney Determination Pmedures                Under the new policy, the staff of the
b y counsel, and,                           and if thei~  hearing section persists in their   Texas Pardonsand Paroles Division- who
   5. There should be within the proce-     apparent hostility towardattorneysandper-         are hiredstate employee.-wiU investigate
dure a meaningful appeals provision.        sists in their unwillingness to accommodate       mmplaints against parolees, conduct hear-
   One would hope a procedure such as       attorneyswho, by and large, are volunteer-        ings and make recommendations to a panel
                                            ing their time to the process, then I would       of the 18-member appointed parole board
the one above described could he de-        recommend that the Center for Correctional
veloped and would pass constitutional
 ..                                                      V O I C E F O R THE D E F E N S E

                         STATE OF TEXAS
                  BOARD OF PARDONS AND PAROLES
                ATTORNEY DETERMINATION DECISION
                                                                                   AssetS
 DATE: 3-28-88                                                                     B a a Accounts                                $    Nme
 NAME                                                                              F~nmcial Securities                           $    Notre
                                                                                   Insurance                                      $   None
                                                                                   Home                                           $   None
 After full review of the following:                                               Aulomabile                                     $   8W.W
 ( ) Emergency Warrant Review dated                                                Personal Assets                                $   None
 (X)                              - - 8
     Report of Vmlation dated: 3 1 8                                               Other                                          $   Norre
                                     e
 ( ) SupplementalReportof Violation d:
                                     a.
                                      t
                                      d                                                            TOTAL ASSETS                   $   85WO
 ( ) Special Reportdated:
 ( ) Releasee's Statementdated
 (X) Attnmey Determination Wmkshcet dated:     3-a7-88
 ( ) Other - specify:
                                                                                   Mortgage(Rent)              G.
                                                                                                            $ l0W
 Releasee's Indigency Status                                                       Automobile (Payment)     $ No#
 (X) Indmgent                                                                      Ut~lities                $ 40.00
 ( )Not Indigent                                                                   Insurance                $ Nom
                                                                                   Child Support            5 None
 Complexities invalved in this case: NONE                                          Credit Cads              $ Nme
                                                                                   Other                    $ Food-      O.
                                                                                                                        I0W


                                                                                   0. Consrderationr
                                                                                   1. Is the releasee effeclrvely able to represent himself (.. can helshe SpeaY in
                                                                                                                                             ie,
                                                                                   an articulate and coherent nlanner)?
                                                                                                     (XX) Yes
                       Diwtor
SignatureHearing Secii~n                                                                             ( )No. explain:
                                                                                   2. Otherfactom N6fm
Dist       Central Hearing Sechon
           Supv. Reg&                                                              Dig:              Centml Hearing Section       Released
           %Dv. OffJ                                                                                 Supv. RegJ8
           Ail. Reg./                                                                                Am. RegJ
           AS. Off/                                                                                  sup". OR/
           Released                                                                                  Agt. OffJ



                                                                                   Federal Corner
                             STATE OF TEXAS                                        Conritz~re~ifiompage
                                                                                                     31
                                                                                       The court went on to point o u t that t h e Supreme Court h a s
                                                                                                 .
                                                                                   recently '. . emphssized the importance of askingspecific questions
                                                                                   designed to unearth the &squalifying views of prospective jurors.
DATE: 3-27.88                                                                      [Citingl~Morgnnu.li/inois, U.S. -, 112 SCt. 2222,119 LEd.Zd492
                                                                                                                         -
NAME                        TDCBPP#! DDWW                                          (19921."
~ r e - ~ e u & &Interview Date: 3-27-88
                 m                                                                     The thesis of t h e s e seven j u d g e s was this: "In short, how
Schednled Hearing Daa: A&lB                                                        the tlial j u d g e g e t s a t it is h i s call, but g e t to it he must. Every
I. REASONS RELEASEE IS REQUESTING STATEAPPOINTED
                                                                                   expwienced tlial lawyer knows that t h e ritualistic g l o b a l
AITORNEX                                                                           inquity of t h e entire panel by t h e trial j u d g e is only t h e
A. Does the &*see admit or deny the alleged rule wolation(s)?                      beginning 1n sensitive cases. The questioning that goes
Rule # 1. Failwe fo roorf                             ,(XX) Admit ( )Deny          beyond t h i s opening ritual is t h e essence of vou dire.
Rule # 3. C l a r i n p residence                     , (lot) Admit ( )Deny            The following judgesagreed t h a t t h e District C o u r t cor~Wly
Rule # 6-A. C A P onr~icipmiion                      .  (XX) Admit ( ) Deny        conducted t h e voir dire e x a m i n a t i o n : JER.RY E. SMITH,
Rule#
RUI~ #
Rule #
                                                     .
                                                     .
                                                        ( ) Admit ( )Deny
                                                        ( 1 Admt ( Deny
                                                        ( ) Admit ( )Deny
                                                                                   GOLDBERG, KING, DUHE, WIENER, BARKSDALE, AND EMILIO M.
                                                                                   GARZA
                                                                                       The follmving j u d g e s agreed that the D i s t n c t court did not
I. For admilled violation($, what mitigating andlor extenualrng factors, if any,                  y
                                                                                   c o r ~ @ c t lc o n d u c t t h e v o i r d i r e e x a m i n a t i o n : HIGGlNBOTHkn,
d m the release? claim?                                                            POLITZ, Chief Judge, a n d GARVOOD, JOLLY, DAVIS, JONFS, and
                         Rderrsee'a & m W kicked k m our oftheltouse mtd he was    DEMOS.
afmidtomoorttl~isbecn1(~ede11~~snfrordofb~i~~~~e~oL&        Hehadrromitimfing
or erlenrmtirre reams for his fgildre fa pamticionte in a CATP nm~rinn.                Since t h e j u d g e s could n o t agree, the panel o p i n i o n
                                                                                   affirming t h e District C o u r t was reinstated.
2 For violation@)denied, what factors, if any, support dend?                           Ibarr-a and Greer do, h o w e v e r , offer some consolation:
 N/A                                                                               When we f e e l humbled by t h e s o p h i s t i c a t i o n of Fourth or
                                                                                   Sixth A m e n d m e n t issues, we at least know t h a t we are not
                                                                                   a l o n e as we grope for t h e solution.
                                           V O I C E FOR T H E D E F E N S E

Search and S e e                            found in cars in Cal(fornia u. Aceuedo,          The scope of a warrantless automo-
 Conti~nred
          from page 21                      1 1 S.Ct. 1982 (1991). In this case,
                                              1                                          bile search will be limited under State
                                            police officers had probable cause to        law according to the federal ~ules.In
                                            believe that there was marijuana in a         OsOa~zu. State, 726 S.W.2d 107
  exigent circumstance which dispenses      paper bag they saw the defendantplace        (Tcx.Cr.App. 1986), the Court of Crimi-
  with the warrant requirement, the state   in the trunk of a car. The Court noted       nal Appeals adopted Ross so if officers
  must show that police could have rea-     the mle in Chaiube~s Mflrorwy, and
                                                                     u.                  discover even a small amount of con-
 sonably concluded that evidence would      Carroll u. U~rited  States, that if police   traband in a car, all parts of the car may
 be destroyed or removed before they       have probable cause to justify a search       be searched in which additional con-
 could obtain a search warrant. The        of an autonlobile, a warrant is not           traband may be concealed, overnlling
 Court held that in McNnil3r,officersfaced required. In United States u. Ross, 456        Gillu. State, 625 S.\V.2d 307 (Tex.Cr.App.
 a real possibility that evidence would    U.S. 798 (1982), the court held that the      1981).
 be destroyed and were justified in en-    search of a container or package found            Whether the Court of CriminalAppeals
 tering the defendant's trailer to check   inside the car could be searched as well,     will adopt the broad holding in Cdi-
 for suspects.                             if officers had probable cause to believe    fortzia U. C a r ~ r q that if officers have
    The emergency destruction of evi-      thecontainer contained the object wllich      probable cause, they may search a
 dence exceptionis generally interpreted   justified the car search.                     potentially mobile car parked in a non-
 consistentlvwith the federal excention.      The Court noted that another rule          I-esidentialareais currently under review
 In Villarmh u. State, 685 s.w.;~ 449                                                              u.
                                           conflicted with the C h a n ~ b e d C a ~ ~ ~ l l /IWJI State, No. 3-86-269, 270CR,
                                                                                         in
 Uex.App. - San Antonio 1985)(af-          Rosscases. In UnitedStatesu. Chad~uick, October21,1987, grantedpetitionsNos.
 firmedApril23, 1986,in an unpublisl~ed 433 US. 1 (19771, the c o u ~stated that
                                                                           t             151, 152-88).
 opinion), the court recognized that       an individual's expectation of PI-ivacy  in   6. Consent searches.
 warrantless house sealchesarepel~nitted his or her personal effects is greater              a. The federal mle.
 under federal law if there is a risk that than the expectation of privacy associ-          A person may waive his or her right
 evidence mill be lost. The court cited    ated with an automobile. In A,jEar7sas to be free from a warrantless seal-chby
 Hunter u. State, 496 S.W.2d 44             u. Sailden, 442 U.S. 753 (19791, the         intelligently and knowingly consenting
 (Tex.Cr.App. 19731, which concerned       Caul-t extended Chadluick to personal         to the search.            Schrieckloth u.
 the medical emergency exception, and      effects such as suitcases found in cars.      Blrstanzonte, 412 U.S. 218,93 S.Ct. 2041,
                          l
 the facts of I W a r ~ mimplicated that   Thus, if officel-s had probable cause to      36 L.Ed.2cl 854 (1973). A third party
 exception. The dicta in Villa~~eal, search a suitcase, the warrant require-             may consent to the search of a person's
 however, reflects the law in Texas re-    ment was not eluninatedsimplybecause          premises if that thil-d paity possesses
 ganling the emergency dest~uctionof       the suitcase was found in a car.              common authority over the premises.
 evidence exception. The doctrine was         In order to resolve confusion which         United States u. Matlock, 415 U.S. 164,
             in
 n~entioned Sterumtu.State, 681 S.W.2d     arose fmm the two lines of cases, the         94 S.Ct. 988,39 L.Ed.2d 242 (1974). The
 774 (Tex.App. -Houston [14tld 1984,       Supreme court held in Aceuedo that the        officer need only reasonably believe
 pet. I-efd).                              Fourth Amendment does not compel              the third palv possesses common au-
 5. The automobile exception.              separate tl-eatment for an aixomobile         thority over the premises for consent to
   a. The federal iule.                    search that extends only to a container                 a
                                                                                         suppo~t warrantless search. Illii~oisu.
   An automobile which may be moved        within the vehicle. The CamNdoctrine          Rou'riglrez, 110 S.Ct. 2793 (1990). CJ,
 may be searched without a warrant if      set forth in Ross now applies to all                                          716
                                                                                         United States u. Mo~rrnirrg, F.Supp.
there is probable cause. Cha~irhe~s searches of containers found in an au-
                                        u.                                               279 W.D. Tex. 1989) (Co-defendant
Maronqg 399 US. 42,90 S.Ct 1975, 26        tomobile: ifpolice have probable cause,       could consent to search of studio shared
L.Ed.2d 419 (1970). This exception is      they may search containers found in          with the defendant, but could not
based on the reduced expectation of        cars without a warrant. The scope of          consent to search of a locked strong
privacy associated with vehicles and       the war~antless   search of an automobile    box that belonged to the defendant.).
their inherent mobility. Califorilia u.    is defined by the object of the search        See also U~~ited    States u. W'hifleld, -
 C a m q 471 U.S. 386,105 S.Ct. 2066,85    a n d the places in which the object may     F.2d- (D.C. Cir. No. 90-3282, delivered
L.Ed.2d 406 (1985)(Motor home search       be found.                                    August 9,1991,49 Cr.L. 1438) (111inois u.
was reasonable notwithstanding the            b. The Texas rule.                         Rodriglrez limited to nustakes of fact,
vehicle's possible additional use as a        If an officer has probable cause to        not mistakes of law. When officers
home).                                     believe that a vehicle contains evidence      could not have reasonably believed
   The scope of a warrantless automo-      of a crime, the officer may search the        that mother had authority to consent to
bile search will be determined by the      areas of thevehicle where the evidence       search, consent was invalid.).
nature of the contraband believed to be    [naybe concealed. Christopheru.State,            In Rodrigveq officers responded to
concealed and defined by the object of     539 S.\V.2d 932 (Tex.Cr.App. 1982)           an assault call. The victim stated that
the search and the places in which thel-e  :over~uledin palt in Preston u. State,       thedefendant hadcommitted theassault.
is probable cause to believe that it may   700 S.W.2d 227 (Tcx.Cr.App. 1985)).          She agreed to take police to the
be found. UiritedStatesu.Ross, 456 US.     rlie seal-chmust be based on probable        defendant's apartment which she re-
798, 102 S.Ct. 2157, 72 L.Ed.2d 572        zause: whether a person of reasonable        ferred to as "our" apartment. She had
(1982).                                    raution woc11d be warranted in the           clothes and furniture there. When they
   The Supreme Court considered the        2elief that contraband or evidence may       arrived, she let police in with her key.
mles relating to searches of containers    le located within the car.                   The officers saw drugs in plain view

                                                                                                                              39
                                              V O I C E F O R THE D E F E N S E

   when they went inside and found tho         the defendant'sgeneralconsentto search       Rrouw u. Smte, 443 S.\V.Zd 261
   defendant sleeping in a bedroom. At         the car included consent to search           CTex.Cr.App. 1969).
   trial, the defendant claimed that the       containers within the car which may             2. A showing of mere acquiescence
   consent was invalid because the woman       contain drugs. The Court emphasized          to a claim of lawful authority is not,
   had vacated theapartmentseveralweeks        that the officer informed the defendant      however, sufficient. Florida u. Zkyer,
   earlier and had no authonty to consent      that he suspected their were drugs in        460 US. 491,103 S.Ct 1319,75L.Ed.2d
   to the entry. The Supreme Court held       the car.                                      229 (19831, Btttnper, Anzos u. United
   that the Fourth Amendment did not             The Court attempted to distinguish its     Stntes, 255 US. 313, 41 S.Ct. 266, 65
   require factual accuracy and as long as    decision in Horldd u. lvells, 110 S.Ct.       L Ed. 654C1921). Seealso Mckey,Meek,
   officers reasonably believed that the       1639(l990), by noting that in that case,     and Doescber u. State, 578 S.W.2d 385
   woman had authority to consent, her        it was unreasonable to believe that a         CI'ex.Cr.App. 1979).
   consent was valid even if it was later     suspect, by consenting to the search of         3. Physical or psychological coe~cion
   shownthat shelackedconsentauthority.       his trunk, had agreed to the breaking         will invalidate consent. Ltcera u. State,
      The government must prove by clear      open of a locked briefcase in the trunk.      561 S.W.2d 497 mex.Cr.App. 1978).
  and convincing evidence that consent        It would, however, be reasonable with         See also Johnson u. Smte, 803 S.W.2d
  was freely and voluntarily given.           regad to a paper bag. Uustice Marshall        272 (Tex.Cr.App. 1990) (petition for
   Bumnperu. No& Carolinn, 391 US. 543,       dissented, noting that expeetations of        writ of cert. pending).
  88 S.Ct. 1788, 20 L.Ed.2d 797 (1968);       p~ivacydo not turn on the type of               4. Although the police do not have to
  and Schneckloth.                            container involved, and consent to           infornl the defendant that consent need
     In UnitedStatesu. Blake, 885 E.2d 795    search a car should not be considered        not be given, failure to warn will con-
  (11th Cir. 19871, the court held that       consent to search containers in the car.     stitute an important factor in consider-
  defendants' consent to an officer's re-     He writes "Appatently, the majority's        ing whether valid consent was given.
  quest to search their "persons"in abusy     real concein is that if the police were      Meeks u. State, 692 S.\V.Zd 504
  airline concoulse did not allow the         required to ask for additional consent to    (Tex.Cr.App. 19851.
  officer to feel their genital areas. The    %arch a closed container found during           5. Consent to search may be oral.
  fequest to searchtheirpersonsneul not       the consensualsearchofanauromobile,          Moatoya u. State, 744 S.W.2d 15
  have been interpreted as a request for      an individual who did not mean to            (Tex.Cr.App. 1987).
  consent to conduct such an intlusive        authorize such additional a r c h i n g         6. Consent given in response to a
 search, which should have been pre-          would have an opportunity to say no.         threat toseek or obtain a search walrant
 ceded by explicit ansent.                    [nessxce,then the majority is claiming       may be vountary. J~brlsonu. State, 803
     In UniredStatesu.McAlpl,le,919F.2d        hat 'the community has a real interest'     S.\V.Zd 272 (Tex.Cr.App. 1990) (petition
  1461 (10 Cir. 19910), the cou~t held that   101 in encouraging citizens to consent       for writ of cert. pending). Of course,
 a kidnap victim, who had been held            o investigatory efforts of their law en-    consent may not be valid if the officer
 against her will for 6 months, had           o~cementagents, but rather in en-            falsely stated that he or shealready had
 sufficientauthority over the prope~ty   to   :ouraging individuaIs to be duped by         a warrant.
 give consent for police to enter.             hem." 1991 W.L. 83089, page 5.1.               2. Thild party consent.
    In Florfda u Jinleno, 111 S.Ct. 1801        b. The Texas rule.                            A third p a y may consent to a search
 (1991), the Supreme Cou~t      considered       1. General ruIes.                         of a defendant's premises of articles if
 whether the scope of consent to search         Texas applies the federal consent         that person has equal authority over
 extends to all areas, including closed       itandard. Juarxzz u. State, 758 SS.V.2d     and control of the premises or effects.
 containers. In this case, police stopped     172 (Tex.Cr.App. 1988), Dickey u. State,    Beckrrell u. State, 720 S.W.2d 526
 the defendant after an illegal hlrn and      '16S.W.2d499(Tex.Cr.App. 19861,and          CTex.Cr.App. 1980, cerf.deniedlO7S.Ct.
 suspected that he might have been            Weeks u. State, 692 S.W.2d 504              2455,95L.Ed.2d865, and Sha~po.       State,
 distributing drugs. The defendant            Tex.Cr.App. 1985). Whether consent          707 S.W.2d 611 (Tex.Cr.App. 1980.
 consented to ageneral search of the car.     s voluntarily or knowingly given is a       The ~etative   degrees of control must be
 On the floor in front of the passenger       plcstion of fact which must be deter-       based on the facts of each case. Given
 seat, theofficer founda rolled-up blown      nined by considering the totality of the    that Texas law followvs federal law with
 paperbag, opened it, and found cocaine.      ircumstances. Schneckloth; j~ratm.          regard to consent searches, it is likely
 The Court noted that the Fourth              1le State nlust prove by clear and          the Illinois v. Rodrigrcezwill apply and
 Amendment does not proscribe all              onvmcing evidence that consent was         officers need only reasonably believe
government searches and seizures, but         reely andvoluntarilygiven. Joh~lsonu.       that the person asserting common ail-
only those which arc unreasonable.            itare, 883S.W.2d 272 CTex.Cr.App. 1390)     thor~tyactuany has authority to give
The standard for measuring the scope          petition forwrit of cert. pendin&. The      consent. See also Boyle v. Stat4 -
ofa suspect's consent under theFourth         ollowing facto~s ~elevant:
                                                                  are                     S.\V.Zd - (Tex.Cr.App. No. 69,743,
Amendment is that of "objective rea-            1. Simply because a person is under       delivered May 15, 1991) (opinion on
sonableness": what would the typical          IIES~ does not inherently preclude free     State's motion for rehearing).
reasonable person have understood by          nd voluntary consent. Jtunt.z, Meek,                          u.
                                                                                             In McNai~y State, - S.\V.Zd -
the exchange behveen the officer and          'UIIN~ZISu. State, 633 S.W.2d 827           (Tex.Cr.App. No. 1407-89, delivered
suspect? Scope is also limited by its         Tex.Cr.App. 1982) Cop. on rehearing);       June 19, 1991) (rehearing filed), the
expressed object. The Court concluded         Irnrslf'ong U. State, 5 5 S.W.2d 25
                                                                      50                          of
                                                                                          Cou~t Criminal appeals considered a
that it was objectively reasonable for        Tex.Cr.App. 1977); Papnknr o. State,        situation in which officers sought to
the police in this case to conclude that      84S.W.2d 731 (Tex.D.App. 1972);and          search the buildings on a tract of land.
                                             VOICE F O R T H E DEFENSE

They contacted the landlord, who con-        to searches made by school authorities             The Rodney King Trial
sented to the search. \%en they arrived      without the inducement or involve-                 Continuedfrof~apage
                                                                                                                  9
at the tract, they found a house and a       ment of police.
trailer. They searched the trailer. Later,     b. The Texas rule.                               Court issued its opinion granting the
the officets learned that the trailer was      The probable cause requirements of               defense motion to disqualify Judge
rented to the defendant. On appeal, he       Art. I, Sec. 9 of the Texas Constitution           Kamins for cause.
argued the landlord's consent was in-        and the 4th Amendment of the United                   The Court o Appeal condemned the
                                                                                                               f
valid.                                       States Constitution apply to juvenile              conduct of the trial judge forparticipating
   Undertheapparent authority dactrine,      proceedings. knzesv. State, 767 S.W.2d             in ex parte communications with the
if officers acted in good faith upon the     789 CTex.Cr.App. 19891..                           prosecution. The mutt also noted that
consent given by an owner in conduct-                                                           while the defense petition seeking re-
ing a search, the evidence seized can-        D~isarricle iuilf be cottiinued h the next        view of thevenue matterwas before the
not be excluded merely because the            iwre ofvoice.                                     CouaofAppeal,Judge Kamins~mewed
officers made a reasonable mistake re-                                                          his attempts to make ex parte comlu-
gading the extent of the owner's au-                                                            nications, only this t h e with the veiy
thority. The Court noted, however, that                                                         judges sitting on the CoutT of Appeal
the doctrine has never been adopted in        Samura3 of Qur Profession                         reviewing the matter.
Texas. The Court then p~oceeded         to             frowpage 7
                                              Cot~tinued                                           Judge Kamins         telephoned judges
apply the facts to the doctrine and held                                                        of the Coutt of Appeals. When that was
that officers acted reasonably in relying                                                       not successful, Judge Kamins left tele-
                                                 With the upmar over the Rodney
on the landlord's consent. Since,                                                               phonemessages with thecourt clerksto
                                              King affairand therecent outcry against
h o w m r , a landlord cannot consent to                                                        be communicated to the judges. These
                                              abusive forfeitures,the publicand even
search of a tenant's property, the con-                                                         telephone messages "cmtmented on
                                              our legislature may be more likely to             thesubstanceof thematter then pending
sent was invalid regardless of how            listen to suggestionswhich would make
reasonable the officers' actions were.                                                          and even included citations to legal
                                              our systenl at least as fair as it is fast and    authority".
  This opinion inrplies that the rules        severe. TCDLAintends to speak up this
stared in Illinoisv. Rodrigcie,q 110 S.Ct.                                                         This type of conduct was clearly
                                                                the
                                              season. W~th help of your voice,                  prohibited by California statute, which
2793 (1991), do not apply in Texas.           our message may be heard and even
   3. Consent after illegal arrest.                                                             prosctibes attempts to influence a judi-
                                              heeded.
  If police impmperly stop or arrest a                                                          cial decision on a pending matter. This
                                                                Footnotes
suspect, and the suspect gives consent           1 While the Supreme C u t s Rules
                                                   .                           or'              conduct lent further support to the
tosearch, the taint of theillegaldetention    Committee had noted that:                         conclusion that Judge Kamins had
mill render the consent invalld unless           Ylhe government in one of its statements       abandoned hisneutral position and had
the State proves that the consent was         to this committee indicated that providing        become personally involved m the Liti-
voluntary (not given as the result of         the defense with witness lists will cause         gation.
coercion), and the taint of the illegal       coerced witness perjury . . . . The major            The cowt cited Judge Kamins for
detention was sufficiently attenuated         argument advanced by prosecutors is that          expressly stating in his June 17th letter
                                              risk of danger to their wltnesres if their        to the court that he intended to transfer
J~larezit. State, 758 S.W.2d 772              identities are disclosed prior to trial. The
<Tex.Cr.App. 1988). The Brozun V. Illi-                                                         the venue altnost immediately and
                                              Committee rewgnizes that there may be a           wanted an immediate response from
 nois, 422 U.S. 590, 95 S.Ct. 2254, 45        risk but believes thar the risk is not as great
L.Etl.2d 416 (19751, test used to deter-      as some fear that it is."                         the court. Yet, within a day of this
rninewhetheraconfession isadmissible             Nevertheless, the Joint Conference Com-                         to
                                                                                                ~epresentation the Court of Appeal,
afreranillegalartest appliesto determine      mittee of Congress deleted this dtscovery         Judge Kamins repudiated that repre-
whether consent was sufficiently sepa-        provision, finding that:                          sentation made to the Court of Appeal.
rated from an illegal stop or arrest.            "Discouragement of witnesses and im-           Thus, the court found support for the
Jimm.                                         proper contact directed at influencing their      defense argument that Judge Kamins
7. Searches o minor students at school.
               f                              testimony, were deemed paratnoun1 con-            was overly concerned with his public
                                              cern in the formulation of this policy."           image and had allowed the public
   a. The federal rule.                       Conference Committee Notes, House Re-
  Minors are entitled to be free from                                                            Networks to influence his management
                                              port No., 94-414 (1974 Amnendmmt).                 of these cases.
un~easonablesearches as are adults.              2. As one commentator has noted:
New Jnsejr v. T.R.O., 469 US. 325, 105           "[Tlhe sad culmination of this develop-           The court ultimately held that the ex
S.Ct. 733, 83 L.Ed.2d 720 (1985). The         ment rame later +nthe actions of the spe-          parte communicatinn from Judge
legality of thesearch is based onwhethcr      cially selectedddensecounselatthePeople*s          Kamins to the ptosecution was "inex-
the search was reasonable under all the       court, who ftequently Mivered speeches             cusable" and created "an appeatance of
circumstances. First, there must be           against the defendants they represented            favoritism".
                       not
reasonable g~ounds, ptobable cause,           Tile defenseattmneyforGeneral Hoeppner,              The court also held that the defense
for believing that the search would           farexample,who msaccused dpsrticipat-              had met its butdenunderthe appropriate
                                              ingin the conspiracy toassassinateHitler m   m     test: a reasonable person aware of all
discl~eevidenceof      illegahtyoraschool     July20,1944, expressedhorror atlus clientb
rule violation. Second, the search ac-                                                           ,he circumstances would have a sub-
                                              action and closed by demanding the death           stantial doubt as to the impartiality of
tually conducted must be reasonably           penalty for him." Muller, Ingo, Hirier'sjlcs-
related in scope to the circumstances         tice, The Corttrs o D J BirdReid, Haward
                                                                f       ~                        ludge Kamins.
justifying thesearch. 7:R.O.applies only      PWSS, 1991.                                          Judge Kamins' inappropriate conduct
                                           V O I C E F O R THE DEFENSE

   denronstlated that he had become so       and the expenses associated with the         White:           1,894,593
   "enlbroiied in the IitMtion that for all  transfer. As Ventnra County was next         BIack:              42,681
   intents and purposeshe had abandoned      door and Alameda County was 500              Asian or Pacific Islander:
   his neutral decision maker status and     miles nolth of Ins Angeles County, the                          249,192
                                 on
   had focused the I~menelight himself.      trial judge selected Ventura County.         Other race:        211,925
   This action undermined the public            Based upon 1990 census figures, the       Hispanic origin of any lace:
   perception of justice and damaged         following figures apply to Califolnia in                        564,828
   public confidencein the judicial system.  genelal and the four counties in par-
     Exit Judge Kamins.                      ticulat:                                       These statistics show that within the
     While the court's opinion was filed        The State of CaIifornEa                  entire state, blacks camprise only 7%of
  November 18,1991, the opinion stated          All Persons: 29,760,021                  the population. The figure jiinlps to
  that on August 6, 1991, the coua had          Male:          14,897,627                11% in Los Angeles County, and 17%in
  notified the parties that it hadissued an     Female:        14,862,394               Alameda County; the figu,ufenosedives
  order allowing this case to proceed but       White:         20,524,327                to 2% in Ventura County.
  directing Judge Kamins "to refrain from       Black:           2,208,801                  If the trial had taken place in Los
  palticipation in the case, other than to      Asian or Pacific Islander:               Angeles County, the lano of black
  disqualify himself."                                           2,845,659               persons to the total population, strictly
     Above and beyond the obvious inl-          Other race:      3,939,070               on a ploponionally representative ba-
  plications of the judkial n~isconduct        Hispanic origin of any race:              sis, would have translated into a p
  addressed in this opinion, another in-                         7,687,938              proximately 1.32 blacks on a ju~y 12of
  teresting facet of the co~nt's decision is                                             persons whereas a move to Ventula
  that it fevealed what appeared to be         L s Aneeles County
                                                 o                                       County would have supported 2.04
  confidential telephone calls by the tnal     All Persons:      8,863,164               blacks,
 judge to court personnel. This disclo-        Male:            4,421,398                  But as usual, statistics can be mis-
 sure appears to be but another example        Female:          4,441,766               leading In that palt of the country,
 of the honor and integrity exhibited by       White:            5,035,103              there are far more members of otber
 this appellate coult. It would be safe to     Black:          '  992,974                                   than
                                                                                         nni~zo~itygtoups there are of black
 wager that the defense, and for that          Asian or Pacific Islandec                pelsons.
 matter, the prosecution, had no idea                             954,485               Racial Composition of Slml Valley
 that Judge Kamins was making any              Other race:       1,835,094              Jnry
 overtures directly to theappellatecou~t.      Hispanic origin of any race:                In view of the inoldinate amount of
 It is to the everlasting credit of this                        3,351,242               publicity in this case, quite a crowd was
 appellate coult that it publicly recog-                                                assembledat theSimiVaIleyCourthouse.
 nized and soundly condemned these             Alameda Countv (prosecutor's             The prospectivejurors numbered in the
 surreptitious contacts, albeit in an un-    choice)                                    hundreds.
 published opinion.                            All Persons: 1,279,182                      According to Barnett, six of these
 The New TRial Slte;Simi Valley                Male:            630,342                 prospective juro~s    were black.
    At the hearing to determine the new        Female:          648,840                    Almost immediately, a serious ques-
 trial site, the conrt inquired of both        White:           761,815                 tion of jury tampering erupted at the
 palties whattheir ~espectiveprefmnces         Black:           229,249                 courthouse during the jury selection
 were as to the location for trial.            Asian or Pacific Isiandec                process. Appalently, the issue first
    The four derendants agreed upon                             192,554                 surfaced in the newspapers and caught
Ventnla County, some thirty miles from         Other race:      800,667                 the attention of the parties.
 Los Angeles County. The prosecution           Hispanic origin of any race:                                        a
                                                                                           The coua o ~ d a e d healing, and
 favoredAlameda Comty,a considerable                            181,805                 developed evidence on therecord. The
 distance fionl Los Angeles County.                                                     question was whether the NAACP had
    The couut inquired ofthe prosecution       Ventura County (Simi Valley)             impropetlycontactedprospectivejurors
why Alameda was its choice. The                Nl Persons:      669,016                 after they had been called for jury
 prosecution argued, according to              Male:            337,493                 setvice at the coulthouse.
Batnett, demogtaphics in gene121 but           Female:          331,523                    One prospective juror heard at her
neverthe white/blackratioand it never          White:           529,166                 church, where the president of the
presented any legal reasons for opting         Black:             15,629                NAACP attended, that two representa-
for Alameda. According to Barnett, the         Asian or Pacific Islander:               tives of the NAACP would be in atten-
truth of the matter was that the pros-                            34,579                dance at the courthouse to ensure that
ecution publicly took the pos~tion     that    Other lace:        84,733                things were going well and that racism
it made not a whit of difference where         Hispanic oligin of any race              was not prevalent. This prospective
in California this case was tried; the                           176,952                ju~or,  celally identified as a member of
county was inelevant. The prosecution                                                   the jury panel by her juror badge, was
simply wanted to get on with theshow           Orange C u e
                                                          o n                           contacted at the courthouse by a black
    Thetrialjudge was bound to consider,       All Persons:     2,410,556               individual who wanted her to be aware
In an order changlng the venue, the            Male:            1,214,060               that he was with the NAACP and that
factors of convenience to the parties          Female:          1,196,496               there would be several from that orga-
                                            V O I C E FOR T H E D E F E N S E

nization present each day from all over      Mexican-Anlericansat on the july. Ac-           A Newsweek poll (May 11, 1932 is-
Southern California, not just Los Ange-      cording to Barnett, the prosecution has      sue) asked a fairly penetrating ques-
les. This same man was seen visiting         never dainled that theabsence ofblacks       tion: "Fmm what p i c knozu of the
with others on the jnty panel, all of        fmm the jury was the fault of the            Rodney King beating case, do you think
them not necessarily blacks. She later       defense or that the defense exercised        the verdict finding the policemen not
visited with another prospective juror       any of its peremptories on the basis of      guilty was justified or not?" A divided
and identified the NAACP individual as       race.                                        vote favored "not justified". What made
"Smith".                                       As a matter of fact, throughout the        the question inte~estingwas its per-
   "Snuth" testified that he had once        entiretrial,courthousesourcesindicated       spective - "from what you know".
been a member of NMCP but was not            that ~lllcism  was not an issue or a con-       Well, what did lue know prior to the
circulating among the jury panel as a        cern of any of the palfies involved.         trial, as ingested from the Networks?
representative of NAACP. He denied           Only after the trial did the stom of         The public knew that there had been a
telling anyone he talked to that he was      p~otestcondemning the Veidict fist           highspeedchase,thatthedriver,Rodney
a member of NAACP or otherwise try-          level the charge of racism as playing a      King,may have been drinking and that,
ing to influence their jndgnent. Smith       palt in the jury verdict.                    m son~e   extent, he ~esisted arrest. All of
insisted that hewas there outof curiosity      Finally, it should be remembered that      us knew that a number of police officers
and as an observer but acknowledged          the verdict of the juy as to each de-        surrounded Rodney King and that
that he realized that people he was          fendant had to be unanimous and              Rodney King was struck by batons over
talking to were potential jurors in the      therefore had to have the concurrence        and over again by white Los Angeles
King case.                                   and agleementof the Mexican-An~esican        police officers without any justification
   In direct conflict with Smith, another    andFilipinojurors in order io constitute      appaimtt ou tbe tape.
prospective juror testified that he was      a valid verdict.                                Did the 15 seconds of the tape so
approached by another individual who         The Jury System                              fieely broadcast over the networks
introduced hinlself,saidhe was there as        If the real truth wereknown,ve~yfew        pomzy the haplessKingas thetarget of
an observer and was a member of the          of us ever give a second thought to that     an unprovoked thrashing by the cops?
NMCP. This plospective juror had the         facet of the Criminal Justice System         Did that 15 second offering show one
feeling that the NMCP wanted the             knownas "trial by jury". We take it for      iota of ev~dence      that King had acted
juro~s vote a certain way in this case,
        to                                   granted, if we give it a passing thought     without any regard for the lives of
because the prospective jurorwas black       at all, until it goes a m , or appears to    others, that King had exhibited violent
and it was a black organization. This        have countenanced a serious breach of        tendencies,that King had ever been the
prospective juror also wore a juror          justice.                                     aggressor in the police confrontationor
identification tag.                            What happened in the "RodneyKing"          that King posed any kind of a danger-
   A strong argument was made that           case? Was, as the Networks are inclined      ous personal threat to the officers?
Sni~th's testimony hadbeensuccessfully       to suggest and the public is apt to now      Facts
impeached by the black witnesses called      believe, the jury blind, deaf and dumb          The following facts were gathered
a t the healing and that it was totally      to what so vividly jumps out in the           from viewing hours of tapes of the trial;
inappropiiate for this pelson to have        much publicized Holliday tape7 How,           reading numerous news accmmts; re-
contacted orspoken t potentialjurors.
                       o                                        1
                                             in the name of a 1 that is right and just,    viewing Coun records; and taking to
It was thought that Smith had done far       could twelve pelsons look at that tape        several courthouse sources, including
more than what he admrtted to in court       and return a "not guilty" verdict? Was it,   John Barnett, a prominent California
and that the damages could not be            in reality, a "racist" jury? Was it so        attorney who enjoys a reputation for
adequately assessed. A new panel, it         consumed with "police protectivisnY          competency, honesty and integrity.
was argued, should be brought to the         that it totally ignored damningevidence         The evidence before the jury showed
courthouse.                                  of "police brutality"?                        that Rodney King, with two passengers,
   The court ovelruled the objections,          After all, this was, was it not, as cut    drove his car at speeds of excess of 100
all of them voiced by the prosecution.       and dried case for a guilty verdict as        miles per hour over a six to eight mile
   Ultimately, four of the black persons     could possibly come down the pike?            track, before he exited the Los Angeles
excused themselves upon hardship             Should not the july trial have been a         freeway. Realizing he was pursued by
glounds and two wele excused by the          mere formality, to put the public stamp       law enforcement authorities; King
defense because of inappropi-iate con-       ofoutrageon vileacts of abuseof police        heedlessly sped through ledlights, and,
tacts by theNACCP, accordingtoBarnelt.       authority?                                   at least ononeoccasion, almost collided
   In letrospect, because of a letter           So what happened? What went                with another vehicle. Finally, he was
authored by a Mexican-American po-           "wrong"? How could this jury let us           forced to a stop.
liticalgmup,additionalgroundssurfaced        down so abruptly? How could trial by             His two passengem alighted fro111the
to suppo~t defense change ofvenue.
            the                              july fail so miserably in the eyes of the     car, and in accordance with police
Then, conduct attributed to the NAACP        public as seen thiough the myopic             instructions, got on the ground.
directly contributed to the exclusion of     vision of the Networks?                          King initially alighted from the ve-
at least trvo black persons from the jury       Or did it? Did the jury really make a                       all
                                                                                           hicle, i g n o ~ d police commands to
because of improper contacts.                horrendous mistake resulting in a mis-        lie on the ground and then climbed
   Notwithstanding this nun of events,       carriage of justice? All who believe so       back into the vehicle. Moments later,
the Simi Valley jurywas iiotcornp~ised       have to piesume that the Netwo~ks             King got out of the car again. This time
a f all whites. One Filipino and one         haveresponsiblyreportedthe truefacts.         he m d e various facial gestures toward
                                                                                                                                 43
                                           V O I C E F O R THE D E F E N S E

   the police and the overhead police         presence of PCP wasnot detectedin hi:        few reasonswhythe pro3ecutorwanted
  helicopter, and wiggled another pan of      system. The defense counters that thc        to hide King, so to speak, to keep him
  his anatomy at a female officer.            &eels believed King was under tht            under m p s and away fmm the jury.
     Eventually, he complied with police      influence of PCP because of his walk           To some extent, the defense was able
  instructionsandgotdownon thegmund.          stace, perspiration, unusual strengthanc     to develop the imposing build of King,
  Four officers swarmed King and each         the fact that he was only monlentaril]       to show his size and weight and to
  grabbed either an arm o a leg.
                            r                 phased by the tazer gun which shoulc         demonstratehis propensity forviolence
                          In
     While an office~was the process of      have immediately leveled King in hi           and disregard for human life and the
  wrestling King's a m behind him, King      tracks but only momentarily dazed him         orders of law enforcement officers.
  managed to breakloose,toss theofficers        The complete tape showed that onlJ           Any jury, under these circun~stances,
  off of him and stand up.                   two of the four police officers usec         would want to know whether there was
     The supervising officer ordered w- batons. The blows were directed pri                evidence that the alleged "victim" had
  eryone to back off. When King ap-          malily to King's a m , legs and hips         beenlegally detained for some criminal
  proached one of theofficers, the omcer     Were they inflicted only whileKing waz       offense, whether he showed any char-
  shot h m with a tazergunandKingwent        nyhg to assume a position to rise up, ir     acteristicsfor violence, whether he was,
  down to his knee. He immediately           direct violation of the officas' orders;     in fact, the aggressor, what steps had
  regained his footing and kept coming.      In the eyes of some officers, the entire     been taken to subdue him and whether
 The officer shot him a second time with     event was a nightmare confrontatior          there was legitimate cause for outright
 a tazer gun. King went down a second        with a PCP suspect who was totally           fear on the part of the arresting police
 time but only momentarily King re-                                           and
                                             heedless of the lives of othe~s quite        officers.
 covered, regained his feet and charged      dangerous.                                      The facts recounted at trial put these
 another police officer. This is the action     According to taped commentaries ol        matters in issue. King sped through the
 first captured on the Holliday tape.        the trial, of twenty-onepolice officersat    county at dangerously high speeds, ran
     The officers saw physical symptoms      the scene, only two were called by the       red lights, and endangered the lives of
 that King was on dn~gs       and perhaps    prosecution. One passenger in the            others until his vehicle finally halted.
 PCP, because of King's blank stare, his    King vehicle admitted that King was           This was not taped. King disregarded
 watery eyes, his perspiration, his ability aware of the pol~ce      during the chase     the police orders until the very time he
 to shake off the debilitating effects of   and believed that King was in shock           was physically restrained.
 the tazer gun used not once but mice,      and acted strange.                               King was able, during the confronta-
 his abnormal strength and other factors.       Ample expert testimony thoroughly         tion, to push, shove, kickand toss off of
    When King charged Powell, the offi-     reviewed the Holliday tape and de-            his body four police officers who had
 cer hit himin either the chest or the face scribed the various ac& of the police         swarmed him at the first opportunity
 and King went down. At tnal, the           officersas totally consistent with police     while he lay on the ground. This was
 officers testified that King was struck    proeedu~e      and in proper response to      not taped.
with a baton each time King moved.          the conduct of Rodney King.                      King proved that he v a s oblivious to
From the officers' perceptions, King            The prosecution chose not m call         the tazer gun which should have
was not obeying ordem to get clown on       Rodney King as a witness, notwith-            dropped him1 in his tracks. King was
his stomach. Instead, he was always         standing King's own attorney's public        shot nvice with this weapon, not just
maneuveling to regain his feet and          comments that King would have been a         once. Oneprosecutionwitnessadmitted
charge the officers.                        willing witness.                             that he was petrified because the tazer
    It was the office~s'fear that King          The prosecution publicly expressed       gun had no visibleeffectupon King and
would againmanageto stand up within         the opinion that King's presence and         that he was scared because King kept
seconds as he had twice before, attack      testimony would only have distracted         advanung. The same officer opined
an officer and either cause hi serious      the jury fiom the conduct of the de-         that he felt l i he was in a "monster
bodily injury or secure an off~cel*'~ fendant police officersand would have              movie," that after being hit, King just
weapon and fire upon the officers.          allowed defense counsel to "b~utalize"       kept coming at him. This was not
    The censored portion the video tape     Kingforthree to seven days, shiftingthe      taped.
shows s~veral     additional events. Offi-  focus of the case from the police officers   The Networks' Report Card
cer Bfesino tries to physically dissuade    to King. Shades of Perry Mason. This             What kind of report card should the
Officer Powell from striking King with      sounds more like the prosecution was         public give the Networks? Responsible
his baton. One of the officers is shown     embarrassed, even skeptical, of its          and informative, or lazy and manipu-
reaching for his handcuffs when King        principal witness.                           lative?
appears to be relenting but then inflicts      F~omthe materials available, there           The 15 second "sight-bite" run on
additional blows when King resumes          have been suggestions that King had a        television nationwide didnot even begin
his movements. On another occasion,         remarkablyviolent criminalrecord, was        to "show"or "tell"the entire story. How
Officer Riesino, right handed, places       ntoxicated, and gave conflicting state-      could it? Is it not dismrbing that this 15
his leftfoot on King'sneck or shoulders,    nents to the police. One OF these            secondpatchwas takenfromthe niiddle
and according to the officer, tries to                                            1
                                            3tatements was to the effect that a 1 of     ofthe tape? Why did the Networks hide
keep King on the ground and in a still      he violence suffered by King at the          the remainder? Why did the Networks
position to avqid huther punishment.        icene took place after King had been         decline to broadcast the very beginning
    Government evidence showed that,        landcuffed. Is that what the tape            of the tape which shows King jumping
while King was legally intoxicated, the     ihowed? Is it so difficult to envision a     to his feet and charging the police. This
                                             V O I C E FOR THE DEFENSE

  segment depicts King as an aggressor.       black jurors sitting in this case?           San Francisco State, described jownal-
  It also makes one wonder what hap-             Did the Networks' coverage conve-          istic activity as a combination of "cow-
  pened before this event.                    niently lump all of the four police          ardice, competitiveness and laziness."
     The Networks' approach was one           offcer defendants in the same basket as      (Washington Jouhul#sm Rmieu,, April
  dynamic public statement. The Net-          if each equally contributed to the vio-       1992). Where were all the capable and
  works instantly painted the police into     lence shown on the 15 second "sight-         competent journalists m this case?
  an indefensiblecorner in the eyes of the    bite"? Was there any fair examinationof          The simple truth may be that the
  public. Did the Networks have their         the evidence as against each defendant       Networks conducted their analysis and
  own personal agenda?Did the Networks        individually? Did the Networks report        presentation of the eventsin accordance
  ever intend that the public be an "in-      that the evidence in court showed only       with the standardsdictated by the battle
  formed public"? Apparently, the Net-        two of the officers actually used batons     of the "ratings." F~wmits perspective,
  works felt the public did not deserve to    to strike King; that one police officer      the n e m r k s intended to capture the
  see the entire tape, that it might sway     actually tried to restlain one of these      attention of the public. High ratings
  the public's judgment or at least cause     two officers at one point and then used      translates into top dollars.
  it to ask a few questions. Did not the      his left foot to keep King down and              Important developments were mea-
  Networks collectively engineer a dis-       prevent further punishment? Did the          sured in terms of ''sound bites" over the
 torted view of the entire incident with      Networks report at length about the use      15 second "sight bits.* The guiding
 its manipulated tape selection?              of the taxer gun and its effects upon        light: sensationalism and a flair for the
     Based upon the 15 second "sight-         King?                                        dramatic. Even during the trial, the
 bite," one would think that the cameras         Upon the announcement of the              actual litigation between the competing
 were rolling when the action began.          unanimous verdict by this jury, televi-      Factions seemed almost to be an after-
 Not so. The focal point of the trial was     sion analysts and the network anchon         thought.
 the entire activity of Rodney King from      evidencedsurprise, shockand disbelief.          While the nation's Networks con-
 the beginning of the chase forward and       Many also showed they were totally           tinue to march on in all of their glory,
 not the snippets of tape taken out of        unprepared forthe verdict andthatthey        self centered as that may be, a sad fact
 context.                                    were equally unfamiliar with the evi-         remains: no victor emerges from this
     The Networks reported the change of      dence developed at trial. Could this         engagement. The people walk away
 venue but there was no in depth cov-        have beenbecause they did not do their        not really "an informed" public, no
 erage or examination of the l e a r n s     job and were just plain lazy?                 more the wiser. The public's opinion,
 behind the change in the trial situs. Was      Many of these stereotype journalists       already shaped by the Networks' inept
 the public ever made aware of the            readily accepted equally stereotyped         coverage, lays dormant, forever con-
 extent of the Network satulation in Los     reactions of public officials that a racist   vinced that the Simi Valley verdict was
 Angeles County or of the letter directed    juvliad returned an irresponsibleverdict      nothing more than a bad dream, a
 to the Court ofAppeal,suggestingsorne       and that this was just another example        disaster, the justice system gone astray.
 pretty ugly violence or the judicial        of a radical jury out of control. Where          The Networks deftly step over the
 misconduct emanating from ex pane           was the in depth analysis to show, if it      carnage, already concentrating on an-
 contacts between the trial judge and the    could be shown, that there really was         other b~eaking     news event, feeding on
 prosecution?                                no factual basis whatever for such a          the perception that the only good
     Did the Networks pursue the igno-       verdict?                                      journalisni is instant, on-the-spot, shal-
 minious exit ofJudge Kamins, after the         Have the Networks actually demon-          low, thoughtless, mindless, "sight and
 defensefiled a motion to eject h i from     strated that they could shape public          sound bite" coverage.
 the case? Did the Networks ever criti-      opinionby thoughdesslyshowing reruns             Unfortunately too many disciples of
 cally examine the ex parte contacts         of an edited tape and not caxefully           the Networks have long held hostage
 between this trial judge and the district   dissecting the evidence?                      such basic fundamentals as hard work,
 attorneys' omce or the additional im-          It has even been suggested that the        intense study, thorough analysis, and
proprieties involved when the trial judge    tape was run and lerun so many times          tf~oughtprovokingjournalism,      premised
 attempted to contact the court of           before the jury that the jury was de-         entirely upon honesty and integrity.
Appeal's personnel?                          sensitized,in effect,strippedofits normal     Only vestigesof these concepts remain.
    In summary fashion, the Networks         emotional reaction to the tape. Ironi-           Is it not the height of arrogance and
acknowledged the racial composition          cally, the public saw a brief blurb of the    hypocrisy for the Networks to challenge
of the jury, oftentimesemphaskingthat                                      to
                                             tape and reacted adve~seiy all four of        the g w d faith of this jury, or to criticize
it was all "non-black," not that it was      these police defendantseach and every         anddemean the jury'sverdict, when the
comprised of ten whites, one Filipino        time. Docs this say much for journal-         Networks failed to either conduct an
and one Mexican-American. The mi-            istic judgment?                               independent, thorough investigative of
nority members were ignored.                    Doug Clifton, Executive Editor of the      their o m , or to listen to all of the
    Were there any Network's coverage        Miami Her'uld, was recently quoted as         evidence presented and repolt it in a
of possible jury tampering based upon        wondering whether journalists weren't         clear and honest fashion to the public?
contacts by any NAACP member with            "fatally flawed," unable to rationally act       The public needs to hear less about
black persons of the jury panel during       anymore He compared journalists to a          the constitutional right of the freedom
the jury selection process? Did the          "gigantic school of fish. One fish has an     of the press and to see more about the
Networks explore whether these con-          impulse to turnleft, so theyall turn left."   responsibility and integrity o the press.
                                                                                                                          f
tacts contributed to the lack of any         Betty Madsger,Journalism Chair for the        In the meantime, the ~ehvorks        should
                                                                                                                                   45
                                               V O I C E F O R THE DEFENSE

   do us ail a favor Either do it right and     preparing their perspective cases. They       collective judgment of such citizens.
   inform the public, or don't do it at all.   went to bat for their clients and hit                                            f
                                                                                                 When I set upon the task o looking
   Epilogue                                     home runs major league style. In short,       into thiscase, Ilnquired ofa local Dallas
     This article would be incomplete          these attorneys did a fantastic job under      television station to locate the full mpe
   without a conlment or two about the         very t~ying    circumstances. It is about      in the Rodney King arrest. None was to
   defense attomeys. The four attorneys        time they were recognized for thei~            be found. One individual was quite
  who represented the Defendants have          superb efforts:                               cynical in her response, which was to
  remained largely ignored.                       John D. Barnett, Santa h a , Callfor-       the effect that I had been shown in
     During the trial, several were inter-     nia, ~epresented     Tlreodoir Briseno        prime time all that was important. One
  viewedandallwere subjectedtominute               P a d R. DePasquale, Los Angeles,         call led to anotheruntil F i l l y ir became
  scrutiny by various commentators, in-        represented Timothy Wind                      clear that the King tape was a scarce
  cluding a number of cnminal defense              Mike Stone, Los Angeles, ~eprcsented      conlmodity.
  attorneys. Often times the approaches        Laurence Powell                                  Finally I contacted noted criminal
  and strategies utilized by the attorneys         Dauyl Mounger, North Hollywood,           defense attorney Ba~ry     'I'a~lorv of Los
  were viewed with considerable skepti-        ~epresented     Stacy Koon                    Angeles who steered me to the law
  cism by their peers.                            I, for one, take my hat off to each of     offices of John Barnett, who in turn
     On one occasion, a "legal" obsewer        these attorneys.                              spent considerable time and expense
  emphasized the fauxpas of the defense           This case in~tially stirred my curiosity                    the
                                                                                             Fnrnisl~ingme backg~oundandcourt
  lawyer who opened the door to preju-         until1became engrossed in a nuniberof         documents which formed the basis of
  dicial evidence which had previously         different developments.                       this article. I have always known Barry
 been ordered excluded by the trial            A Final Word                                  Tarlow's reputation for honesty and
  cou~t.Shuffled to one side, however,            But the case didnot grab my attention      integrity. Thanks to his help, I ex-
 were the forward strides made by the          until the collective media began casti-       panded my own horizons and found
 defense on a regular basis.                   gating the jury and its verdict of repat-     yet anothe~California attorney, John
     On another occasion, some equally         mg on various conunents of politicians        Barnett,who stands ingood stead in the
 astute "legal" obsewers lamented the          doing the same. I had t~ouble    believing    same arena. My sincere thanks to both
 stlategy of all four attolneys when they       hat this or any other jury was just plain    of these gentlemen for all their assis-
 vehemently opposed the submission of          stupid, racist, or blind. I recalled that I   tance.
 instructions on lesser included offenses      mce prosecuted a case in which a july
 in the final jury inst~uctions. The t~ial     eturned a less than satisfactory verdict
 court deemed this stmtegy signiticant         and rather than licking nzy wounds and
 enough to require an "on rhe record"          :oing on, I lambasted that jury to its
 waiver by the individual defendants.          mllect~ve    face in court For longer than    Federal Impact Decisions
 Surely this was but another sign of             care to remember. My recollection is        Cw?timredf,on?pge
                                                                                                             32
 naivete or inexpmience. Of course, we          hat the jury immediately assessed the
 all know this risky strategy was success-     naxirnum punishment for the reduced           by CNN, which would enable the dis-
 ful.                                          ~ffense    and spent the balance of the       trict court to conduct the balancing of
    Truly remarkable is the leahation          ime (several hours) voting on whether         First and Sixth Amendment rights. In
 that the Criminal Defense Bar has taken       o filea formal complaint with my boss.        denying CNN's requested relief from
 an unusual posture in this case: its          The jury frnally rehuned its verdict, left                       order, the Court also
                                                                                             the district cou~t's
 silence has been deafening. The few           he court and was reported to have met         noted that CNN was in contempt of the
 who didspeakoutwere hypercriticalof           1 second time in the central jury room
                                                                                             dist~ictcourt's order to produce the
the jury's ve~dict. Th~s     reaction has      >eforeit finally disbanded. Over the          tapes and that no palty should mntinue
 continued even in the face of verdtcts        nonths and yeas that followed, the            to violate a district court's order and
which should be touted as a tnbute to          nessage sank in. In a way this article is     attempt to have the order reviewed at
the criminal justice system as a whole         ny personal apology to that Dallas jury       the same time.
and to the efforts of the four defense         ~f many yeas ago. Thanks to that              4. United States u. Bakker, -F.2d
attorneys in particular.                       .xperience and many others more fa-           -, No. 89-5687 (4th Cir., February
    Could it be that this bar'^ has very       wahle, my own respect for the jury            11,19911.
little sympathy for the four accused           ystem has grown. These citizens come             ISSUES: a. Whether an allegation in
persons because of their occupation as         lut of nowhere, do a yeoman's task,           anindictment that a conspiracyoccurred
police officers? Day in and day out, this      mdmelt back into the woodwork with            from "on or about January 1, 1982 and
"Bar" wages battle against the police in       ittle or 'no thanks. I would wager that       continuing until the present" (when the
one case after another in couit, and           he jury in this case is very much the         indictment was returned after the No-
more often than not poIice end up on           arne as juries inso many other cases-         vember 1, 1987, effective date of the
the winning side, sometimesregardless           onscientious, responsible and                Federal sentencing guidelines) would
of the facts. So it was rather easy for the    lardworking. This jury heard all of the       render the conspiracy a straddle crime
collective "Bar" to sit back, expect and       acts, watched all of the tapes and            which could be sentenced under the
perl~aps  even hope that the police got        ~stened all of the attorneys and then
                                                         to                                  sentencing guidelines. b. Whether a
"their due." Well, surprise! Mernbe~sof        ende~ed decision.
                                                           a                                 trial judge's comments about the defen-
our "Bar" hit a home run                         It would take a snlug and anogant           dant at the sentencing hearing compro-
    These four attorneys worked h a ~ d        ~dividual    indeed, to second guess the      mised the sentencing p~oceeding    and
                                                                                             deprived the defendant of due process.
                                              V O I C E FOR THE DEFENSE

   DISCUSSION: James Bakker, former             vemher 1,1987. The Court held that th       evidence was introduced and the Court
head of the PTL, was found guilty of            ending date of the indictment does nc       determined that the district court was
eight counts of mail fraud, 15 counts of        govern whether the offense should b         correct in not applying the sentencing
wirefraudand one count of conspiracy.           classifiedasastraddle crime. The Cow        guidelines to the conspiracy wunt. the
H e m s sentencedto 45 years imprison-          stated that exact dates of conspi~acie      Court also noted that there was even
ment and fined $500,000.                        were diffsult to determine at the indicr    greater support for the district court's
   (a1 Bakker contended that all of his         ment stage, when the government ma          decisions not m apply the guidelinesto
crimes, but particularly the conspiracy         not have sufficient knowledge to gaug       Bakker's mail and wile fmud offenses,
count, should have been deemed                  when the conspiracy actually tern           noting that such offenses are, by their
straddle crimes and thus sentenced              nated. It also pointed out that using th    nature, not ongoing crimes of the type
under the sentencing guidelines which           ending date of the indictment as cor        that can straddle the effective date of
apply to offenses committed after No-           trolling for purposes of determinin         the guidelines. In this case, each in-
vember 1, 1987. His argument was                application of the guidelines wad'          stance of mail and wire fraud occurred
basedon the languageof theindictment            permit the government to manipulat          on a spec& date, all falling prior to
which charged that the conspiracy oc-           whether a defendant was sentence'           November 1,1987.
curred "from on or ahout January 1,             under the guidelines simply by choo5           (b) During the sentencing the judge
1982 and continuing until the present,          ing the ending date. In order to dete~      made the following remarks about
the exact dates being unlmown to the            mine whether a conspiracy is a s t d d l    Bakker: "He had no thought whatever
grandjury." The indictment, which was           crime, the government must introduc         about his victims and those of us who
returned on December 5,1988, did not            evidence at trial that a member of th       do lave a religiianarelidicnled as being
charge M k e r with any overt acts in           conspiracy acted to further it after N c    saps from money-grubbing preachers
furtherance of t e wnspiracy after No-
                h                               vember 1, 1987. In this case, no sue        or priests." Bakker argued that these
                                                                                            comments were an abuse of discretion
                                                                                            and violation of due process because
                                                                                            the judge imposed his own sense of
                                                                                            religiosity and victimimtton into the
                        Publications for Sale                                               sentence he imposed on Bakker. The
                                                                                            government argued that the phrase,
   Check Desired                                                                            "those of us," merely indicated that the
   Piuchase                                                                 Sales P i e
                                                                                   rc       judge was speaking for society as a
                                                                                            whole, not for himself. The govern-
  0 TEXAS CONTROLLED SUBSTANCESTAX ACT                                         $20.00       ment also argued that the judge was
    (reproduced by TCDLA)                                                                   commenting on the inlpact of Bakkefs
                                                                              $100.00       crimesonsociety,which waswell within
  O TCDMACDL Trial of a Drug Case
                                                                                            his discretion. The Coulf stated that,
    February 1992
                                                                                            even though the sentencing judge can
  U CDLP Skills Coune- Corpus Christi                                          $75.00       consider the impact of a defendant's
     April 1992                                                                             crimes on the community, and lecture a
  U Capital Murder Manual by: Keith E. Iagmin                                  $225.00      defendant as a lesson to the defendant
                                                                                            as well as a deterrent to others, the
  0 TCDLA ADVANCED CRIMINAL L W SHORT COURSE
                             A                                                $125.00       sentencing discretion must be exercised
      Course Book -June. I992 - San Antonio                                                 within the boundaries of due process.
                                                                                            And, while recognizing that a judge
                                      OK
  U CDLP SCIENTIFIC EVIDENCE SEMINAR B O                                                     need not surrender religious beliefs
     July, 1992 -League City                                                                when he assumes judicial office, the
                                                                                             Court stated that it could not sanction
                                                                                             "sentencing procedures that create the
                           Sales Tax is not included. (8%)                                   perception ofthe benchasapulpit from
                                             and
             Please check desired purchase@) send this order form to the                    which judges announce their personal
     Criminal Defense Lawyers Project, 600 West 13th S r e ,Austin, Texas 78701
                                                       tet                                  sense of religiosity and simultaneously
                                                                                             punish defendants for offending it.
                                                                                            Whether or not the trial judge has a
                                                                                             religion is irrelevant for purposes of
  YAME                                                                                      sentencing," The Coufi concluded that
                                                                                             the lengthy prison term imposed on
                                                                                            Bakker may have reflectedthe fact that
                                                                                            the trial court's o m sense of reliiious
  XI'YISTATEnIP                                             PHONE NO.                       propriety had been betrayed and, as a
                                                                                             result, the trial court abused its d i r e
           D Cash Sale                                      0 Check Enclosed                tion in sentencing Bakker. The Cou~t
  'All books will be mailed book rate (allow 4 weeks delivery)unless otherwise specified.   vacated thesentence and remanded the
                                                                                             case for resentencing..
                                                                                                                                 "7
      rlllllllllllllll.
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