Journal of the Texas Crlmnal Defense Lawyers Assoctatlon
DEFENSE VOLUME 21 NO 7
Catherine Greene Rurllett
rector, ~dvahcedCriminal Law Course
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
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
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?
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
VOICE F O R THE DEFENSE
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
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
W o r d W Brown Frank Maloney
Lubbock (1982-83) Austin (1971-72)
Charles M. McDonald
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
\Vorthington Hotel TCDWNACDL Trial of a Drug Case March, 1993
Fort Worth (DoubleTree at Allen Center) TCDLA Board Meeting
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
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
TCDLA President's Ball
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:
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
November 1 1-15,1992 July 15-16,1993
CDLP Skills Course
I " - "" "
~ i r n k sooce. reserve now1
d August 19-20, 1993
CDLP Skills Course
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
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.
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-
cused of crune." It was springtime in
many of our professional careels and
citizen iighb were blossoming flower-
like from their underground abode dl
If you haven't noticed lately, you and
Of Our I, Brothels and Sisters of the ctiminal
bar, have since become the stepchil-
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.
by Gerald H. Goldstein '"One o the purposes of the discovery
rule itself is to mmimize the risk that fabri-
cated testimony wdl be believed. Defen-
dants who are willmg to fabr~cate defense
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
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:
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
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
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
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
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
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
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
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
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
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
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
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-
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
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).
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
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
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.
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-
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
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
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
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
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
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¬speak~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
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
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
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
~. ~ ~
~ ~ .
WHO AXE SUBIHCT TO HliJ&&E
AFTER REVOCATION HIIT THE
BOARD lrlBVER SBES E
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
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
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
rroticeclfact ii~lrst one nor of
of purpolted ~ccords another coult so.
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).
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
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.
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.
"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
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
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
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
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.
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
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
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,
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.
(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
* : ..- . .-*,~ : ,
, -:. , .~.. ,~ $'
. *<~ . . :~" $~! & <
: * . .$
& < :!i
:Ggzff-p a p Marie Meeker serves as the Justice o'f the Peace, PI&@@&IO,:T@$;'~
, ~~ : ~
..,7p.... +. : , -:.<:
~ ~ @ f i ~ ! s ~ p _ a ~ @,.. ~r'rr-. @ ~ ~ ~2.~ ~ @ m i n d.r,.>,~...wr.. ~ h e ~ % a..s & @ . . ~ i @ g ? ~
. .. , . . , . -
g q . --~.>. ;--'v,,,,~.
:!..-,r:_.;':...,? , ..ZI
r - yf..
~ : k: ...$.< , - .+-?- 5
: , .
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.
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
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
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
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
Reversible enol occurred here because the application para- to e2pandPenry to i~rcltide thee~pressPenry
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
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
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).
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."
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
- 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
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
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.
PRACTTCE GUIDE. A ~naiorifyf tbo Cou1tascri6essigrz~-
COLLATJBAL ESTOPPEL: JURY'S NEGATIVE ANSWER
TO SPECW. ISSUE AT FIRST TRLM BARS STATE'S
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.
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
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
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
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;
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
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
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
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 ~ 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
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
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~:~~?
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.
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~~
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
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-
BIGGINS, A70.3 7-9O;Jnr11m1yS, 1992;I~erCrrricfnr Opirrioir; ion." Hence that sectionwas givencontrolling effect over the
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
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
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?
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
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
540-91, B r f c l ~ n ~ PDR 560-91; and
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.
i V O I C E FOR T H E D E F E N S E
1 I FEDERAL IMPACT DECISIONS I
1. UnikeriStates v. W&rd -P.2d-, and remanded. n r cases of obstruction of justice
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:,
I a t i 1 ~ ) (:i~arlie
7 w;~s n assisti&
in lndiann for four years. Clrarlie war, nrl AssisraN llnited Stales Attorney fc&
'*thweyears, ran n joint t1.S. Justice I)e~~a~~r~r~it-'l'r~~as~~"/
ynqwt in South I'loridn for llrrcc yeals (Operation Greenlnck), was Chief of tllc tl.ti>
lkparlnr(:nt'sNarculics and Ikiogerous l)n~gSection one ycx, and s c ~ c d
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
?gJolid;~ and'fexas 13an. Clrarlk is cvrrently a pmtnrr at Jolmmn t+ (;il)h..andspecialixy
!:h, whit): .$T ,;-.., e<;!,.".>>,, ..,*,, , ...
.pjrg, . and c...A, I..;. 4.J... . , ;$ : :
-,#w. coll;~r.crjrne crilninal 1sx.nutter.i , .$ ,.,:;%... . ,;:.. ;,.: .&, &&
., ' '
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-
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
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-
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
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
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
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-
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
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
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-
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-
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
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
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
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
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
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
( ) SupplementalReportof Violation d:
d TOTAL ASSETS $ 85WO
( ) Special Reportdated:
( ) Releasee's Statementdated
(X) Attnmey Determination Wmkshcet dated: 3-a7-88
( ) Other - specify:
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.
1. Is the releasee effeclrvely able to represent himself (.. can helshe SpeaY in
an articulate and coherent nlanner)?
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
STATE OF TEXAS Conritz~re~ifiompage
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,
( ) Admit ( )Deny
( 1 Admt ( Deny
( ) Admit ( )Deny
GOLDBERG, KING, DUHE, WIENER, BARKSDALE, AND EMILIO M.
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.
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-
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,
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,
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,
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
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
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
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
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
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-
If police impmperly stop or arrest a cial decision on a pending matter. This
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".
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
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.
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
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
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.
tacts contributed to the lack of any Betty Madsger,Journalism Chair for the In the meantime, the ~ehvorks should
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
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
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,
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
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
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..
TEXAS CRIMINAL DEFENSE LAWYERS Some of the best legal minds
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