The media called Dan Randall Leach, II, the Passion

THETEXAS PROSECUTOR The Official Journal of the The Official Journal of the Texas District & County Attorneys Association Volume 34, Number 6 November/December 2004 It shall be the primary duty of all prosecuting attorneys not to convict, but to see that justice is done. Art. 2.01 Texas Code of Criminal Procedure Prosecuting the Passion Confession Killer The surprising back story on the murder trial of Dan Leach, II The media called Dan Randall Leach, II, the Passion Confession Killer, but my co-counsel in the trial, First Assistant District Attorney Fred Felcman, and I called him the defendant. Days after his arrest, I began receiving calls from numerous local and national print, television, and radio news outlets, inquiring about the case. This interest stemmed from information released by the sheriff s department regarding the influence of The Passion of the Christ movie as one motivation for the defendant s confession. Leach s actions indicated to me that he was thriving on the immense media attention. Several days after his arrest, the defendant gave a sevenminute news conference at the jail, wherein he was interviewed by a Houston radio reporter and a local Fort Bend newspaper reporter. The background In January, 2004, 19-year-old Ashley Nicole Wilson, a college student who lived in Fort Bend County, found herself Also in this issue: Testing defendants for malingering mental illness at trial...page 17 By Greg Gilleland Assistant District Attorney in Fort Bend County Dan Leach, II, cries during his trial s punishment phase. Photo courtesy of the Houston Chronicle. Is that local poker tournament legal? Find out for sure on page 41. five to six weeks pregnant, as verified by her physician who performed a blood test and sonogram. One of two putative fathers, the defendant was aware of the other man but considered himself the father of the child. Ashley s mother found her body January 19, 2004. After an investigation, the Fort Bend County Sheriff s Department and the Harris County medical examiner declared her death a suicide, with strangulation by hanging listed as the manner of death. The suicide determination was ostensibly aided by a note found at the scene detailing the victim s various concerns, as well as by the fact that the victim was undergoing psychiatric counseling and was on prescribed medications to treat mood disorders, emotional immaturity, attention deficit disorder, seizures, and depression. (Ashley had sustained severe brain injuries four years earlier in a car surfing accident. Two subsequent brain surgeries resulted in the disorders.) On March 7th, the defendant stood in his church and Continued on page 12 Monitoring inmates jail phone calls can pay off bigtime...page 58

TDCAA Book Order Form Code ND PR Order by Fax: 512/478-4112 Phone: 512/474-2436 Web: www.tdcaa.com Name Office Shipping address (no P.O. boxes) City ZIP Phone Purchase order # (state offices only) Visa or Mastercard # Expiration date CRIMINAL CODE BOOKS Qty Price Total NEW! Annotated Transportation Code Crimes (2004 05) 25.00 Annotated Criminal Laws of Texas 2003 05 (bound) 55.00 10 24 copies 48.00 ea. 25 or more copies 45.00 ea. Code of Criminal Procedure 2003 05 (spiral) 30.00 Penal Code 2003 05 (spiral) 25.00 Texas Crimes 2003 10.00 Quick Laws 2003 (laminated chart) 5.00 MANUALS Qty Price Total NEW! Confessions (2004) 25.00 NEW! Extradition (2004) 15.00 NEW! Traffic Stops (2004) 20.00 NEW! Sex Offender Registration (2004) 15.00 NEW! The Perfect Plea (2004 update) 40.00 NEW! Future Danger (2004 update) 20.00 NEW! Prosecutor Trial Notebook (24 laminated sheets) (2004 update) 75.00 NEW! Investigating & Prosecuting Child Sexual Abuse (2004) 40.00 DWI Investigation & Prosecution (2003) 40.00 Warrantless Search & Seizure (2002) 40.00 Charging Manual (2003 05) Binder only or disk only (circle one) 175.00 Both binder and disk 200.00 Guide to Asset Seizure & Forfeiture (2003) 50.00 Capital Writs (2002) 40.00 Predicate Questions Manual (2002) SOLD OUT; new edition January 2005 Texas Prosecutorial Ethics (2001) 30.00 State s Appellate Manual, 2nd ed. (2001) 200.00 Texas Gangs: The Legal Handbook (2000) REDUCED PRICE! 40.00 25.00 Warrants Manual for Arrest, Search & Seizure (2000) 40.00 Investigator s Desk Reference Manual (2003) 55.00 PROSECUTOR OFFICE SUPPLIES Qty Price Total Guide to Report Writing (2001) 5.00 Grand Jury Handbook (2003 update) 3.50 File folders (with printed outline for case notes; 100 per box, 300 per case) manilla: letter or legal (circle one) blue or green: legal only (circle one) Victim brochures (generic or personalized) 43.00 per box (legal) 60.00 per box (letter) 56.00 per box call for prices Directory of Texas Prosecutors & Staff (2003 05) 16.00 Shipping 1 item: $8 4 5 items: $16 10+ items: call for cost 2 3 items: $12 6 9 items: $20 Tax (include shipping; 8.25%; write exempt if tax-exempt) TOTAL

TEXAS DISTRICT & COUNTY ATTORNEYS ASSOCIATION 1210 Nueces St., Austin, TX 78701 512/474-2436 fax: 512/478-4112 www.tdcaa.com OFFICERS President: Bruce Isaacks, Denton Chairman of the Board: Jaime Esparza, El Paso President-Elect: Yolanda De Leon, Brownsville Secretary/Treasurer: Tim Cole, Montague DIRECTORS Ken Sparks, Columbus Galen Ray Sumrow, Rockwall Bill Turner, Bryan Kathy Braddock, Houston William P. Smith, Silverton Michael L. Fostel, Kermit Mark Edwards, Sweetwater Jose Homero Ramirez, Laredo Steve Reis, Bay City Bob Gage, Fairfield Jana A. Jones, Decatur John Bradley, Georgetown Investigator Section Chairperson: Melissa Hightower, Georgetown Key Personnel Section Chairperson: Karen Nelson, Seguin BOARD REPRESENTATIVES G. Dwayne Pruitt Henry Garza Rene A. Guerra Barry Macha C. Scott Brumley Casey Garrett STAFF Robert Kepple, Executive Director Diane Burch Beckham, Senior Staff Counsel Lindsey Roberts,Training Director Shannon Edmonds, Staff Attorney Ben Whittenburg, Executive Sales Manager Markus Kypreos, Research Attorney Marnie Parker, Financial Officer Judy Bellsnyder, Meeting Planner John Brown, Director of Operations Sarah Wolf, Communications Director Gail Ferguson, Administrative Assistant Lara Brumen, Database Manager & Meeting Planning Assistant Shelly Bundy, Meeting Planner W. Clay Abbott, DWI Resource Prosecutor Kevin Landtroop, Law Clerk John McMillin, Intern Published bimonthly by TDCAA through legislative appropriation to the Texas Court of Criminal Appeals. Subscriptions are free to Texas prosecutors, investigators, prosecutor office personnel, and other TDCAA members. Articles not otherwise copyrighted may be reprinted with attribution as follows: Reprinted from The TEXAS PROSECUTOR with permission of the Texas District & County Attorneys Association. The editor encourages readers to share varying viewpoints on current topics of interest to TDCAA members. The views expressed are solely those of the authors. We retain the right to edit material. Sarah Wolf, Editor/Photographer Diane Beckham, Senior Staff Counsel Copyright 2004, all rights reserved. TABLE OF CONTENTS 4 President s Report Why we specialize in felony intoxication prosecutions By Bruce Isaacks, Criminal District Attorney in Denton 5 Newsworthy 6 Executive Director s Report In honor of C. Chris Marshall By Rob Kepple, TDCAA Executive Director 8 Annual Criminal & Civil Law Update photos 9 Bill Turner is the State Bar Prosecutor of the Year 10 DWI Corner By W. Clay Abbott, TDCAA DWI Resource Prosecutor 11 Seized vehicle causes stir in South Padre 16 In memoriam 17 Criminal Law: Malingering incompetence to stand trial, insanity, and mental retardation By Steve Rubenzer, Ph.D., clinical and forensic psychologist in Houston 24 Criminal Law: Ending child abuse within 120 years By Victor I. Vieth, director of APRI s National Child Protection Training Center at Winona State University in Winona, Minnesota 27 May a county judge serve on the school board? 30 Upcoming seminar agendas and registration forms 34 Criminal Law: Criminal nonsupport 36 Criminal Law: Fire in the courthouse! By Cindy Franklin, Assistant District Attorney in Bell County 38 As the Judges Saw It By Betty Marshall, Assistant State s Prosecuting Attorney in Austin 40 Prosecutor in Clara Harris trial responds to made-for-tv movie By Mia Magness, Assistant District Attorney in Harris County 41 Criminal Law: A hold on Texas Hold Em? By Markus Kypreos, TDCAA Research Attorney 43 Criminal Law: What s the Mata here? By David C. Newell, Assistant Criminal District Attorney in Fort Bend County 50 Criminal Law: Geographic jurisdiction of officers in Texas By Diane Burch Beckham, TDCAA Senior Staff Counsel 53 Victim Assistance Section Communication with victims goes a long way By Mindy Montford McCracken, Assistant District Attorney in Travis County 55 Key Personnel Seminar photos 56 Victim Assistance Section Texas bikers band together against child abuse By Dan Leal, Executive Director of the Denton County Children s Advocacy Center, and Karen Redd Rich, Bikers Against Child Abuse member 58 Investigator Section Pookie s in trouble By Betty Marshall, Assistant State s Prosecuting Attorney in Austin 60 Sentencing Tips The misdirected sentence By John Bradley, District Attorney in Williamson County 62 Criminal Law: Helpful Crawford predicate questions By Cindy Dyer, Assistant Criminal District Attorney in Dallas County PAGE 3

THE TEXAS PROSECUTOR the President s Report By Bruce Isaacks Criminal District Attorney in Denton Why we specialize in felony intoxication prosecutions Since 2000, when my office first started its DWI Prosecution Unit, we have learned that the most efficient and productive way to prosecute felony DWIs is to team an attorney with an investigator so the pair can develop proficiencies in felony intoxication offenses. Our prosecution unit stays abreast of the latest trends in DWI prosecution, including the most current defense strategies and most popular defense expert witnesses, because the attorney and investigator spend their time investigating, preparing, and prosecuting felony intoxication offenses or educating peace officers and prosecutors about such offenses. Our unit handles mostly felony DWI cases but is also responsible for intoxication assault and intoxication manslaughter offenses. In any felony intoxication case, our prosecutor can prepare faster and better because of his constant work in that area. Our felony intoxication prosecutor, Jimmy Angelino, has become one of the top experts in the state. When Jimmy was called to active duty from the U.S. Army Reserve, Bill Schultz stepped in and developed expertise as well. We in Denton County are fortunate to have two prosecutors and an investigator, Ron Keaton, specializing in this area. Prosecutors are as tough as the juries. Even though many defendants act as though their DWI offense is not a very serious matter, they soon find that our office takes DWI very seriously, especially when a defendant has advanced to a felony offender. Linda Jeffries, director of victim services for the North Texas area Mothers Against Drunk Driving, has said that word is getting out that you d better not get picked up in Denton County. Ms. Jeffries believes that the DWI prosecution units in Denton and Bexar Counties should serve as models for others to achieve more skillful and efficient prosecution of intoxication offenses, which, we all know, can be tricky. We need expert or specialized prosecutors because of the many technical issues in intoxication offenses, she said. Frequent offenders from larger counties often are stunned by how felony DWIs are tried in Denton County. In one case, the defendant faced his ninth DWI offense, which he had the misfortune of committing in Denton County. Even though he had been convicted of DWI eight times before, he had never served more than a year in jail. But now, he is serving a life sentence, courtesy of a Denton County jury. How our system works The expertise our unit has developed and the confidence that expertise provides affects every stage of felony DWI prosecutions. First, our unit conducts its own intake of felony intoxication cases. Second, we rarely offer or agree to probation during plea discussions. Our offers and agreements usually require penitentiary time, as Denton County juries often demand it. In fact, we currently get penitentiary time in 78 percent of our felony DWI cases, regardless of how the case is disposed. PAGE 4

NOVEMBER/DECEMBER 2004 Third, our trials proceed with very few surprises because our prosecutor knows how to cross-examine the particular defense expert and how to counter challenges to field sobriety testing, Intoxilyzer results, extrapolation, and many other issues. In Denton County, we have an advantage in getting our cases into the courtroom because the county criminal courts have felony jurisdiction concurrent with district courts over intoxication offenses. When faced with a full docket in district court, we can move the felony case to a county criminal court. Additionally, the defense bar in Denton County is aware of our prosecution unit and often wisely counsels clients to take a plea agreement. One of the incentives for a defendant to plea is that the average time of incarceration for Denton County offenders is nearly 50 percent of the sentence assessed. This shows another benefit from the prosecution unit statistical research. Sharing our knowledge As with any office that develops expertise in an area, we are eager to share knowledge and training with others. Although members of our DWI Prosecution Unit make presentations to hundreds of people in any given year, perhaps three of our most important audiences are police officers, young misdemeanor prosecutors, and teenagers. We continually update police officers on the best way to investigate DWIs and can prepare them for defensive strategies during cross-examination because we often know how a particular defense attorney approaches it. Our unit can help our young misdemeanor prosecutors learn the ropes of DWI prosecution much better and much faster than before we started our specialized unit. And before prom season, our unit goes into high schools to talk to teens and present a sobering message about drinking and driving. Our presentation goes far beyond the legal consequences in the hope of preventing tragic assault and manslaughter cases. The maintenance of a specialized felony DWI unit also allows us to cultivate strong relationships with other groups, including MADD, DWI prosecutors from other counties, and legislators who consider DWI prosecutions a priority. Although our prosecution unit was started with grant money, today the unit receives all its funding from the county. Our county commissioners made an important statement when they picked up the funding for our unit. Denton County juries have made numerous important statements through their assessment of tough sentences. And our office continues to make an important statement through vigorous prosecution. In the final analysis, this combined effort in Denton County has helped keep the streets and roads safer for our citizens. Newsworthy Attention, hockey fans! The Austin Ice Bats are graciously offering discounted tickets (as part of its Law & Order Night) to all TDCAA members, family, and friends for the Dec. 11 matchup against the San Angelo Saints. Faceoff is at 7:35 p.m., and the game is followed by a free concert. Reserve your seats today by contacting Sara Matthys by phone at 512/927-7825 or by e-mail at smatthys@icebats.com. Texas Juvenile Law Book now available Texas Juvenile Law (6th edition) by Dr. Robert O. Dawson is a complete reference source for Texas juvenile justice personnel. It is now available for $50 from the Texas Juvenile Probation Commission; an order form is available on our web site at www.tdcaa.com in the Forms, Briefs, Et Al section. Just search for juvenile law book. Continued on page 10 PAGE 5

THE TEXAS PROSECUTOR Photo courtesy of NDAA the Executive Director s Report On September 20th I was privileged to attend the dedication of the Prosecutors Memorial at the Earnest F. Hollings National Advocacy Center on the University of South Carolina campus (see the photo, below). The new memorial was commissioned to honor prosecutors who have lost their lives in the line of duty. It was constructed with significant support from the various prosecutor associations around the country, including TDCAA. Among the first seven prosecutors to be memorialized was C. Chris Marshall, a powerful advocate for the State with the Tarrant County Criminal District Attorney s Office who was murdered in court in 1992. We still miss Chris we could sure use his brilliant guidance on hearsay in the wake of the Crawford decision! As we went to press, we learned that By Rob Kepple TDCAA Executive Director In honor of fallen prosecutors a second Texas prosecutor will be added to the memorial. Many of you recall the untimely death of Gil Epstein, an assistant district attorney in Fort Bend County. Gil was killed in a robbery after the gunman spotted his badge. The first in his family to achieve a post-graduate degree, Gil had been an ADA for only a year and a half. His family and his coworkers saw the promise of greatness in this young prosecutor, and it is fitting the NDAA has announced that Gil will be honored at the Prosecutors Memorial. Next time you are at the NAC, be sure to pay your respects. Annual Conference in review We had another great Annual Conference. Four years ago the TDCAA Long Range Planning Committee wanted us to really focus on creating tracks of intensive instruction in key areas, and by the reviews you provided, we ve been successful. We added an eighth track this year (TDFPS) and had overwhelmingly positive evaluations on them all. Thanks to the TDCAA Training Committee and our entire staff led by Lindsey Roberts for putting on a great function. Only a couple of rough spots, both involving sitting too much. One was having to sit on buses for the ride to and from the Convention Center. The downside of growing as an association is that the Convention Center is the only place on Padre Island that will accommodate our numbers. But even with that ride, y all have told us loud and clear that you prefer going to Padre over other venues, so we ll have to put up with shuttle buses for the time-being. The second involved a couple of missed (but scheduled) breaks during the Trial Track. Sometimes our speakers just get so into their topic, they forget to adjourn for some leg-stretching, coffee-refilling, and bathroom-visiting. In the future we will enforce those breaks, we promise. And look at it this way: You got some great exercise carrying around that monster of a seminar binder (which we will also slim down next year). From the sublime to the ridiculous We all know that in the last couple years the ACLU has made a lot of hay over the Tulia drug cases. And give the devil his due: Putting aside the issues of accuracy and fairness, it has done a masterful job of trashing that town s name to focus on an issue close to their hearts: drug laws. Lots of meaty issues there. I m wondering if the ACLU will have the same success with its next lofty project: getting flat-screen televisions for death row inmates. No kidding that appears to be a big issue for those folks. You may have read about their efforts, but the scuttlebutt is that regular TVs are too dangerous: Stuff can be hidden inside them and the internal parts can be turned into weapons. But apparently a good plasma screen could minimize the risk to the guards. Good luck with that. PAGE 6

Student loan forgiveness stymied in Congress? It is a little hard to figure out what has happened at this point, but word from the National District Attorneys Association is that student loan forgiveness for prosecutors and public defenders is not faring too well. Supporters have tried to attach the measure to some crime legislation moving though Congress, but we are getting the impression that there isn t a lot of enthusiasm for it on Capitol Hill, at least right now. But in the true spirit of prosecutorial creativity, our friends in Oklahoma are advancing a new idea: Make the repayment of the principal on student loans an above-the-line federal income tax deduction (a deduction currently exists for student loan interest). OK, it isn t everything we could hope for, but as Pappy Kepple was fond of saying, it s better than a sharp stick in the eye. We will keep you informed. Passing of a judicial powerhouse By the time you get this Prosecutor, you will likely have learned of the passing of Judge Sam Houston Clinton, a former judge on the Court of Criminal Appeals. Judge Clinton was an intellectual powerhouse and prolific writer. We all respected his consistency and judicial temperament. And we must never forget that he provided us with some of the most memorable moments in appellate writing. Forget the recent butt crack case. In the notorious penis parade case, Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990), our Texas Court of Criminal Appeals discussed at length the admissibility of extraneous offenses; in this case the extraneous bad conduct was the defendant marching around in front of his children with the flag flying, as it were. But the everthoughtful Judge Clinton, carefully thinking through the legal admissibility of the defendant s display, had these insightful remarks: Many in our society would condemn appellant for his conduct whether they believed it showed sexual arousal directed at his children, an undifferentiated sexual arousal imprudently displayed, or simply an incidental erection coupled with a damnable nonchalance. Good on ya, Judge. That s kind of writing that turned our law books into real page-turners! TDCAA leadership report At our Annual Business Meeting held in conjunction with our conference in Padre, some new folks were elected to leadership positions. Those who will take office in January 2005 are: Tim Cole, DA Montague, President Elect; David Williams, CA San Saba, Secretary/Treasurer; Jim Kuboviak, CA Bryan, County Attorney at Large; Doug Lowe, CDA Palestine, Criminal District Attorney at Large; Scott Brumley, CA-Elect Amarillo, Region 1 Director; Jesse Gonzales, CA Pecos, Region 2 Director; Dan Heard, CDA Port Lavaca, Region 4 Director; and Mike Fouts, DA Haskell, Region 7 Director. Congratulations to those folks, and thanks for stepping up. As always, come January the new president will form committees for the next year, so if you have an interest in training, publications, technical assistance, and all the other things we do, just let us know. Miranda in the King s English Apparently, the Miranda warnings mandated by our Supreme Court aren t all that unique. Senior District Judge Larry Gist of Beaumont shared with us the warnings required of the London NOVEMBER/DECEMBER 2004 Metropolitan Police: You do not have to say anything. But it may harm your defense if you do not mention when questioned, something which you later rely on in court. Anything you do say may be given in evidence. Say it in your best lame Sean Connery/007 accent, and it sounds pretty good. Time-honored gambling in Texas? The huge popularity of television poker shows has rekindled interest in all sorts of gambling. In this Prosecutor you will see an article about Texas Hold Em tournaments written by our research attorney Markus Kypreos, which will serve as a polite reminder that this stuff is still illegal in Texas. (See page 41 for the whole scoop.) But we continue to get lots of calls about the subject, and our user forum at www.tdcaa.com recently was the home of a very interesting discussion of another time-honored Texas gambling game, cow patty bingo. Log on and get up to speed on how to properly hold a charitable event of tremendous popularity! DWI training on the horizon You will read a lot more about this soon, but I want to be the first to welcome a new TDCAA staff member, Clay Abbott, formerly of the Lubbock County Criminal District Attorney s Office and most recently with the Texas Municipal Courts Education Center. Clay is here on a three-year grant from TxDOT and the National Highway Traffic Safety Administration. His sole purpose: to bring first-class training to Texas prosecutors and police officers on driving while intoxicated. Watch for some great new training opportunities coming your way from TDCAA in the very near future. PAGE 7

THE TEXAS PROSECUTOR Annual Criminal & Civil Law Update photos More than 990 people attended our biggest conference of the year on South Padre Island. Here are a few memories of the week. PAGE 8

NOVEMBER/DECEMBER 2004 Bill Turner is the State Bar Prosecutor of the Year Bill Turner is joined by his wife, Jana, and daughters Becky and Katie at the Annual, where he received the Prosecutor of the Year award. Bill Turner, the 85th Judicial District Attorney serving Brazos County, was honored as the 2004 State Bar Prosecutor of the Year at TDCAA s Annual Criminal & Civil Law Update.Turner, who has served as Brazos County s elected district attorney since 1983, is highly esteemed by fellow prosecutors both in his office and across the state for scrupulously abiding by his duty under the law not to convict, but to see that justice is done. Barry Macha, the Criminal District Attorney in Wichita County who won the award last year, nominated Turner and speaks highly of his colleague. Bill deserves this award because he is a proven leader of Texas prosecutors, Macha says. Not only is he one of the finest trial prosecutors Texas has ever seen, but he is also a fearless and ethical advocate for the citizens and victims of his community. Margaret Lalk, who has worked with Turner for more than 20 years, looks to him as a mentor and teacher, both in the courtroom and in life. Working with Bill has been a constant education, she says. Bill never shoots from the hip; he is methodically prepared when he walks into court. He teaches that listening is more important than talking, that compassion and respect are basic to justice, and that you must seek others viewpoints without deviating from your own moral compass. I have never met another prosecutor who has put as much effort and thought into what it takes to be an effective and ethical prosecutor than Bill Turner, says Turner s first assistant DA Shane Phelps. He sets the bar very high and is a wonderful role model for prosecutors across Texas. It is an overwhelming feeling to be honored by people you have so much respect for, Turner says of receiving the award. I have always believed that doing the right thing in each case is what is expected of Texas prosecutors. It s what we do. PAGE 9

THE TEXAS PROSECUTOR DWI Corner TDCAA is happy to announce its receipt of a federal grant through the Texas Department of Transportation (TxDOT) grant for local prosecutor and police training and assistance in DWI and intoxication offenses. The grant has three major elements: the creation of a DWI resource prosecutor position at TDCAA; complementary distribution of Richard Alpert s excellent publication, DWI Investigation and Prosecution, to every Texas prosecutor; and prosecutor-police DWI training at the local level. A good number of you may already know me from TDCAA and TMCEC seminars, the Texas Tech School of Law where I served as an adjunct professor for a decade, or the Lubbock County Criminal District Attorney s Office. I am pleased to combine the skills I ve learned both as a prosecutor and as a legal educator in my new position as TDCAA s DWI resource prosecutor. It is my pleasure to return to my By W. Clay Abbott TDCAA DWI Resource Prosecutor Introducing Clay Abbott roots. I have always had a special place in my heart for DWI prosecutions, offenses often mislabeled as victimless. While the events of September 11, 2001, and the conflict in Iraq rank more highly in our political debate, community dialogue, thoughts, and prayers, we prosecutors know that intoxication offenses, if left unchecked, will eventually touch many more victims. The number of lives lost to intoxicated drivers, while declining, still take a greater toll on Americans than terrorism and war combined. According to the National Traffic Safety Administration s Analysis Reporting System (Fars) 2003 Report, 1,709 people died in alcohol-related crashes in Texas in 2003 alone, ranking us first nationally in alcohol related fatalities and seventh in percentage of traffic fatalities that are alcohol-related. Prosecutors are the driving force behind holding these offenders account- able. Not surprisingly, then, we are often blamed for perceived failures in DWI prosecution. Threee common criticisms include abundant plea bargaining, misplaced priorities, and a lack of training. There is simply no choice but to plead the majority of these cases, usually with offers made to move backlog rather than reflect the charges seriousness. Our priorities are attacked because misdemeanors including DWI are delegated to the greenest attorneys on staff. Yet few cases are as complicated as a DWI or intoxicated manslaughter or assault. Not only do constitutional issues abound, but prosecutors often go up against capable, experienced, and well-prepared defense counsel representing otherwise upstanding and socially connected defendants. Seldom does the prosecutor s ability, preparedness, and education have as great a potential impact on the chance of conviction. Yet I remember, as a young misdemeanor prosecutor so many years ago I never had enough places to go with questions. My first day in the office was my first day in court, and I m sure things still operate similarly. With this grant and my new position at TDCAA, we hope to address the third criticism by providing technical assistance and joint police and prosecutor training on intoxication offenses. Each group must be trained in how to best perform its own role, but both will benefit from exposure to the challenges facing the other. An advantage of such side-by-side learning will be greater PAGE 10

NOVEMBER/DECEMBER 2004 understanding, dialogue, and coordination between prosecutors and police. In addition, we will put on regional training on whatever intoxicationrelated topics you want. In what areas do you need the most help? Are you willing to host a training and get the word out to your cops? We hope to begin scheduling and conducting oneday seminars all over the state soon. I also look forward to working on the association s excellent existing projects, such as answering legal calls, speaking at the Trial Skills seminars, conducting an intoxicated manslaughter course, writing a regular column in this newsletter, and updating DWI caselaw in The Prosecutors Report. I will also coordinate with education and advocacy groups including TxDOT, TMPA, MADD, DPS, and numerous other TxDOT/NHTSA grantees so I can be your resource for information and assistance, even on topics I don t carry in my head. Finally, look for new and consolidated DWI resources at www.tdcaa.com. One unfair criticism of prosecutors is that they don t care about DWI offenses. My observation and experience tells me this is simply not true: Dedication abounds, but resources do not. While I do not claim to have all the answers, I am available by phone (512/474-2436) or e-mail (abbott@ tdcaa.com) to field questions or offer suggestions on DWI issues. Contact me if I can help. Seized vehicle causes stir in South Padre Attendees of our Annual Criminal & Civil Law Update in South Padre chuckled heartily at this Chevrolet Yukon, which was parked in the Convention Center s lot. Mark Yarborough, Lamb County and District Attorney, explained how the county gained ownership of the truck: When trooper Brent Collins pulled Trooper Brent Collins, who initially stopped the vehicle; Lamb County and District Attorney Mark Yarborough; Assistant County & District Attorney Scott Say, and Lamb County Sheriff Gary Maddox pose by the forfeited Yukon, right. Above, the words that get thumbs-up and honks from passing motorists. the vehicle over this year, the driver, 25- year-old Adam Rivera, had a small amount of cocaine, some marijuana, approximately $4,000 in cash, and a 9- mm pistol. We forfeited all of it. The Yukon had about 33,000 miles on it, and the defendant s father had just paid off the note as a graduation gift for his son. The stereo system is topof-the-line. The receiver is actually a hard drive and can record CDs. We deleted most of the 50 or so Rivera had on the hard drive, but we left a few, including the Bad Boys soundtrack. The defendant had more problems than in just Lamb County; he also delivered cocaine in Hale County. When he agreed to be punished in Hale, he also agreed to our forfeiture of the Yukon, cash, and gun. After the case was disposed, we wanted to make a statement to dealers in Lamb County. That s when we thought of the Mastercard-type saying for the back windshield. Every time we drive the vehicle, we get thumbs up, claps, and honking horns from other drivers. At the Annual Update, we tried to park up front as much as possible to show it off. I can t tell you the number of positive comments we received. We also plan on using the Yukon in parades and with our county D.A.R.E. program. PAGE 11

THE TEXAS PROSECUTOR Continued from the front cover Prosecuting the Passion Confession Killer (cont d) advised his fellow parishioners that he was going on a journey, that he likely would be gone a long time, and that he had sinned; he asked the congregation to pray for him. A short time later, his parents summoned the minister and the church elders to their home, where Leach informed them that he had strangled a girl whom he had gotten pregnant and staged it to look like a suicide. After urging him to contact an attorney, some of the elders and his parents accompanied him to the sheriff s office, where after he was duly advised of his rights, the defendant exercised his right to counsel, opted not to give a statement, and was allowed to leave. Two days later, the defendant again appeared at the sheriff s office with his parents. After waiving all of his rights in writing and on video, he confessed in great detail in a nearly two-hour video regarding the murder of Ashley Wilson. The defendant said his motive was that he was embarrassed that others would know he had been with the victim, a person he considered inferior to himself. In his video confession, the defendant s affect was flat and matter-of-fact, with absolutely no show of emotion. It was of such a frank and blasé delivery that when played at trial it was universally characterized by the media as chilling. In his non-custodial statement, the defendant said he had been like a robot with a program, cold and calculated, PAGE 12 and that he had sociopathically detached himself from any feelings for the victim as a person to murder her. Prior to strangling her, he had convinced Ashley to pen a note detailing the bad things and the good things in her life, as he knew he would need physical evidence to make her murder look like suicide. Of great interest to me was the In his video confession, the defendant s affect was flat and matter-of-fact, with absolutely no show of emotion. It was of such a frank and blasé delivery that when played at trial it was universally characterized by the media as chilling. defendant s taped admission of thoughts of killing others, including his former Air Force commander, which he had planned in some detail. Of great initial interest to both the media and several Right to Life groups that contacted me was whether the case would be prosecuted as a capital case under the new Texas Penal Code provisions classifying a fetus as an individual. This situation was resolved when the Harris County ME s office found no indication of pregnancy or a fetus during the autopsy. Because the victim s body had been cremated before the defendant s confession, there was no opportunity to conduct further investigation in this regard, and we proceeded with a non-capital murder case. Pre-trial investigation Once the story broke internationally, I received a call from Lt. Col. Dan Whitten of the U.S. Air Force, who had been the defendant s commanding officer. The previous year Lt. Col. Whitten had spearheaded a court martial against the defendant for house burglary, failure to obey the orders of a superior, and the negligent discharge of a firearm, which resulted in Leach s five-month incarceration and his subsequent discharge from the service. Whitten had heard the story of Ashley s murder and offered his and the Air Force s assistance in Leach s prosecution; in his opinion, the defendant was an extremely dangerous individual. Within days, I had a complete transcript and record of the court martial proceedings and a copy of the defendant s investigation file of the Air Force Security Police, including witness statements. Further, the USAF JAG corps and security police at Tyndall AFB in Florida happily performed some followup work. They assisted on tracking witnesses, serving subpoenas, and taking at least three statements from Air Force witnesses regarding other extraneous matters. Through this information I secured the cooperation of the lieutenat colonel to appear and testify and also located Leach s ex-girlfriend, whom the defen-

NOVEMBER/DECEMBER 2004 dant had terrorized, and another airman who had overheard the defendant threaten to kill yet another serviceman during his stint in the Air Force. The exgirlfriend could testify that not only had the defendant told her he thought he was capable of killing another, but also that during their relationship Leach was greatly interested in and read books on forensic science, handwriting analysis, and psychiatry, none of which had any relation to his military duties. Of course, these were all subject areas the defendant utilized less than a year later in Ashley s murder and his cover-up of her death. It is important to note that District Attorney John Healey was a daily presence in my office during the first several months of post-indictment research and investigation. He gave me not only his knowledgeable experience but also his strong support and allowed me to investigate and try this case the way I wanted to. The Passion of the Christ After examining all of the evidence and statements by the defendant and witnesses, Mr. Felcman and I independently reached the same conclusion about The Passion of the Christ s power over the defendant s decision to confess: It was of some but not overwhelming influence in forming the defendant s desire to confess to this murder. In his confession, the defendant said that to repent and redeem his eternal soul to God, he had to confess his sin and submit himself to the lawful authorities on earth for punishment. The defendant joined his church at age 4, and along with his family, had been an extremely active member of their local Church of Christ. He often attended services three times a week. In his initial confession and ensuing news conference, the defendant cited his reborn faith, a recent Bible study session with an old family friend, and a particularly moving sermon on March 7, 2004, as the main reasons motivating him to testify. At best, the movie, which he said he saw twice, pricked my heart and became one of several reasons he confessed. Will Mel Gibson attend the trial? Due to widespread pre-trial media interest, Judge Brady Elliott of the 268th District Court retained, at no cost to the county, a media consultant who normally works for the local CBS affiliate and who had coordinated numerous other high-profile Texas trials. Further, Judge Elliott entered a Media Coordination Order, a very wise idea in a publicityintense case of this nature. A media room was set up in a nearby courtroom with an audio feed from our courtroom. Judge Elliott decided not to allow cameras to film testimony but only opening and closing arguments. The reporters conduct was most respectful to our witnesses, the victim s family, and the prosecutors. Unlike the defense attorneys, who gave press conferences during nearly every break in the trial and at the beginning and end of each day, Fred Felcman and I adhered to our usual policy, which is not to make comments to the media until a verdict is rendered. Of course, when all the major networks have a camera crew on scene, during slow moments of the day almost any event will draw media attention, including the attorneys and witnesses arriving at the courthouse each day or going to lunch. Guilty or not guilty? One aspect of drama that I think the defendant felt he controlled was advising his attorneys what his plea would be. In fact, the venire panel was questioned on issues for both phases of the trial, but until the defendant stood and made his unusual guilty plea in the case, neither the court nor the State knew how the defendant would plead. Obviously, this was of great consternation to the victim s family, whom the defendant had told during his news conference that he would plead guilty to murder. Fred and I prepared our case as if we would try guilt/innocence and punishment and had the necessary witnesses present on the first day of trial to proceed in either event. I had two opening statements sitting on counsel table in front of me that morning, one for guilt/innocence and one for punishment. Hedging our bets that he would plead guilty, we had already flown in our military witnesses from Germany and Florida. Continued on page 14 PAGE 13

THE TEXAS PROSECUTOR Continued from page 13 The other aspect of drama the defendant felt he controlled was advising the court as to whether he would testify. After the State rested on the second day of testimony, the defense team told the judge that the defendant would advise the court the following day whether he would testify. Although this generated great suspense in the media, I was sure Leach would have to testify to try to soften the scary image created by his confession and news conference, as well as by the State s witnesses. The media witness I had planned to introduce the sevenminute recorded interview given to the media shortly after the defendant s arrest as evidence not only of his guilt but also for his statements praising law enforcement for their fair and extremely courteous treatment during his confession. It was also noteworthy that although the defendant expressed his concerns for his eternal soul as the prime motivator for his confession, not once did he mention concern for the victim s soul. This interview was also important evidence of his extremely blasé demeanor in his delivery of opinions and statements regarding his predicament, and it suggested that he was actually enjoying the interview and the attention. I subpoenaed the radio reporter who had initiated the interview, as well as the young reporter from a local newspaper who accompanied him. I felt that the stronger personality of the radio reporter would make a better presentation of the evidence than the shy, introverted newspaper reporter, but I was PAGE 14 soon contacted by an Austin civil attorney from a well-known firm who represented the radio station and reporter. The station never filed a motion to quash the radio reporter s subpoena, but the reporter s attorney insisted that I schedule his appearance through her. I saw no reason to make a control issue out of this, so I agreed that they could appear at noon instead of at 8:30 a.m. so the attorney could drop her children at daycare before traveling to Houston. On the day the trial began, my secretary and proverbial right hand, Carolyn Childers, had at least one conversation with the attorney, who informed her they were on their way and would appear at the agreed time. Shortly after their no-show at noon, I received a tersely worded dictum via fax advising me that because the defendant had pleaded guilty and the attorney knew there was a newspaper reporter who could testify to the same facts as her client, her client would not appear. Carolyn s attempts to reach the radio station s attorney and dissuade this course of action fell on deaf ears. Ultimately I was able to contact another attorney in Dallas (the Austin attorney s supervisor), who had a little more realistic grasp on what compliance with a criminal subpoena entailed. The Dallas lawyer initially attempted to negotiate, unsuccessfully of course, over what questions I would ask the reporter as well as what questions the defense would ask of him! I urged her to contact the wellknown Houston criminal defense attorney for whom she had once interned to ask him about my reputation as a practitioner and what procedural and criminal laws of the State of Texas were germane to this situation. Finally, I advised her that Judge Brady Elliott had been appraised of the situation and was ready to grant the as-yet-unfiled writ of attachment that I held in my hand. Although I did not mention that the writ, once filed, would be public record for the numerous television and newspaper reporters in attendance and thus fodder for the evening news, I suspect she was able to grasp this on her own. Shortly thereafter, the Dallas attorney called me back and advised that their fully cooperative witness would appear momentarily with yet another attorney, this one from their firm s Houston office, who would facilitate full compliance with the subpoena s legal requirements. The importance of our victim-witness coordinator The other member of our team in this case was Wanda Greenwald, veteran victim witness coordinator of our office. She, along with Carolyn Childers, worked with the victims and witnesses and facilitated contact between them and myself. In addition to scheduling their appearance and answering myriad questions attendant to cases like this, their calm, friendly, and easygoing demeanors kept the witnesses in good spirits despite their understandable nervousness. Truly, co-workers like Wanda and Carolyn are the third and fourth chairs that insure success in the courtroom.

NOVEMBER/DECEMBER 2004 The defendant s character witnesses I would hesitate to characterize the defendant s fellow church members as zealots, yet one could accurately say that they were steadfast in their support and unflagging positive opinion of him. It made our job much easier when one fellow church member testified as to the defendant s innate goodness and refused to believe that the defendant actually murdered Ashley, despite the detailed and highly corroborated confession. Likewise, our job was made easier by several church members who said that they had no problem with the defendant associating with their children, unsupervised at any time, despite his deeds. Nearly every eyebrow on the jury rose when the defendant s minister said that Leach merely stumbled on the path to God in choking the very life from Ashley. Images It was important to me in this case, as in any murder case, to personalize the victim as much as possible while avoiding a comparison of the characters of defendant and victim. Ashley was a vulnerable young lady, not only in an emotional sense but also in the way of a pregnant teenager who wanted to marry the defendant. I called her long-time psychiatrist who had seen her mere days before her death. He testified that she was not suicidal, had never been suicidal, and was basically a good kid. Dr. Ferdinand Plavidal, Ashley s obstetrician, who saw her less than 10 days before her death, was her longtime physician and in fact had delivered Ashley. He is chief of staff in his specialty for more than 20 years at one of Houston s finest hospitals, and his compassionate demeanor told the jury that he had accurately performed the sonogram, seen the fetus, and heard the fetal heartbeat. He presented an ultrasound Assistant DA Greg Gilleland shows the jury a photo of the victim, Ashley Wilson. Photo courtesy of the Houston Chronicle. picture of the fetus and testified that these observations were consistent with Ashley s pregnancy blood test hormone levels. He did not think the pregnancy had been terminated by abortion or miscarriage but declined to speculate why the medical examiner found no evidence of pregnancy. As a pre-emptive strike against anticipated defensive theories, I felt both of these areas of evidence important in establishing that the victim had not been scamming the defendant about a pregnancy and that she did not take her own life or request the defendant to help her do so. My hunch was right: The defense questioned medical witnesses regarding these possibilities, as well as others, such as auto-erotic strangulation. I also wanted the jury to have a clear image of the dangerousness of this defendant beyond his bizarre behavior during the confession or radio interview. Based on the evidence, there were several mental images of Leach I wanted the jury to contemplate. One was of him, as he stated in his confession, with his body and legs wrapped around Ashley to prevent any struggle on her part, as he held the ligature tight against her neck for 10 minutes after he felt her lungs stop moving, just to make sure she was really dead. Another image of the defendant s dark and bizarre personality was painted by his ex-girlfriend s testimony. Leach, clad only in his underwear, head newly shaved, stood in the darkness at midnight on Easter Sunday over her bed in her on-post housing. Her two young daughters were in the next room, and he eerily clicked the light on a fish tank off and on after he had been given numerous verbal and written orders by his military superiors to avoid contact with the ex-girlfriend and her family. A third image was of the defendant sitting in his car in the dark, trying to relax, while parked in front of his exgirlfriend s home. There he was, methodically loading and unloading a 45-caliber pistol as he contemplated the events of his life after a lengthy discus- Continued on page 16 PAGE 15

THE TEXAS PROSECUTOR In memoriam Anna Maria Quinones The Polk County Criminal District Attorney s Office in Livingston is sad to announce the death of their friend and coworker, Anna Quinones, the office s crime victim advocate. Anna and her 19-year-old daughter, Dana, were killed in a automobile accident June 5 while returning home from a minivacation in Arkansas. Kaycee Jones, assistant DA, says, Anna was devoted to helping victims of crime. Despite the long hours and sad stories she had to hear, she never complained. In fact, she would call law enforcement if she heard about a crime after it happened and fuss that they had not called her at 3 in the morning to comfort the victim. She did not mind having to give up anything to help a victim. Our office has lost a truly great victim s advocate and a wonderful friend. Shannon Ross Shannon Ross died suddenly at her home in Rowlett Sept. 11. She was the criminal chief of the U.S.Attorney s Office for the Northern District of Texas and also worked for 10 years as a Dallas County assistant DA, where she focused on drug and organized crime prosecutions. A one-time winner of TDCAA s C. Chris Marshall Distinguished Faculty Award, Ross was greatly respected and beloved by those with whom she worked. Judge Sam Houston Clinton Sam Houston Clinton passed away Oct. 5. A former judge on the Court of Criminal Appeals, he served three consecutive sixyear terms as a Democrat. Clinton was a constitutional scholar and avid historian and acted as general counsel to the Texas AFL/CIO and the Texas Civil Liberties Union and was a member of numerous committes serving the State Bar of Texas. PAGE 16 Continued from page 15 sion with the ex-girlfriend about their relationship and its problems. The gun accidentally discharged in the car shortly thereafter. The arguments The defense s posture was that Leach should somehow be rewarded for his confession to this crime because absent his confession, the case would have remained classified as a suicide. Our conviction was that the defendant was a dangerous killer with an admitted ability to depersonalize himself and go into a robot-like mode, able to kill without compunction. Fortunately, the jury agreed with us and sentenced the defendant to 75 years and a $10,000 fine. I especially enjoyed the final portion of Fred s argument, where he sat on the edge of the State s table and in a subdued manner explained to the jury that it was most important for us as a society to know where this defendant is at all times. He continued, saying that by incarcerating Leach for life, we would be providing for all of his wants and needs: food, shelter, clothing, and medical care, and that in return we would not have to worry about the defendant killing again. Of course, our greatest satisfaction from Sex Offender Registration by Suzy Morton and Traffic Stops by Diane Burch Beckham are now for sale from TDCAA. Both are shorter and less expensive than many of our other publications. (See page 50 for a Traffic Stops excerpt.). this case was the relief to Ashley s parents, Renee Coulter and Dan Wilson, and to their family and friends, in seeking justice for Ashley. They were pleased with the jury s punishment verdict, and Renee felt vindicated she had been a strong voice contesting the original suicide determination. There is no equal to the heartfelt thanks of Ashley s family. The personal aspect A week before the start of trial, my father passed away. A former Harris County prosecutor and longtime noted Houston criminal defense attorney, he would have wanted me to go ahead with the trial. He had followed the case from its inception, and as late as two days before he died, he was offering astute advice on strategy and evidence. He, like I, felt that the defendant was an extremely dangerous man who needed a lengthy sentence to protect the public. Fred Felcman and John Healey were invaluable to me after that: Fred picked up the slack in voir dire, cross-examination, and the pretrial motion to suppress, and John allowed me to go ahead with as much or as little of the trial as I wanted to under the circumstances. Many thanks for their help and support. New titles from TDCAA now available An updated Prosecutor Trial Notebook by Diane Beckham and Matthew Paul is also available. To order these books or any others, visit www.tdcaa.com/publications, or fill out the order form on page 2 of this newsletter and fax it to 512/478-4112.

NOVEMBER/DECEMBER 2004 CRIMINAL LAW By Steve Rubenzer, Ph.D. Clinical and forensic psychologist in Houston Malingering incompetence to stand trial, insanity, and mental retardation Many defendants try to fake mental illness before or at trial. Here is how forensic psychologists determine their malingering. Defendants who successfully feign mental impairment take advantage of society s compassion for the mentally ill and create skepticism towards those who are truly incompetent or insane. They create substantial additional costs for the court system for transportation, psychiatric care, and attorneys and court fees. Witnesses may become unavailable and the chances for a successful feigned insanity defense or other favorable outcome may improve after confinement in a mental hospital. But malingering may constitute obstruction of justice and has been upheld as a basis for a sentencing enhancement by the Fifth Circuit. 1 Lastly, malingerers may create management problems for psychiatric staff at treatment facilities. They may be career criminals who, when placed in a supportive but dull psychiatric environment, disrupt the ward routine and take advantage of legitimate psychiatric patients. Good public policy demands that they not be allowed to disrupt justice administration and impose the aforementioned costs on society when competent assessment at the pretrial stage can prevent it. This article will review the issues pertaining to malingering, discuss the best validated and useful tests and techniques available, and examine the three contexts where prosecutors may face psychiatric malingering: competency to stand trial, sanity at the time of the offense, and mental retardation in the context of a death penalty case. Who malinger? Surveys of psychiatrists and psychologists in forensic settings report that malingering (faking or exaggeration to avoid negative consequences) occurs in 16 18 percent of persons who present as significantly impaired. 2 This is almost certainly an underestimation because successful malingers would not be counted, and there is little evidence that clinicians unaided by specialized tests can reliably distinguish malingerers from persons actually suffering from a mental disease or defect. One recent study found that psychiatrists working in a state forensic facility, relying on interviews and file data, failed to identify 50 percent of malingerers detected through specialized testing. 3 The misidentification rate among clinicians in non-forensic settings who provide treatment (as opposed to assessment) is likely to be much higher. The American Psychiatric Association s Diagnostic and Statistical Manual clearly states, Malingering should be ruled out in those situations in which financial remuneration, benefit eligibility, and forensic determinations play a role. 4 However, clinicians may not know that the patient has such motivations, often do not suspect the possibility of malingering and typically lack the training or tools to assess for malingering even if they suspect it. Not surprisingly, they rarely find it. In contrast, forensic psychologists consider malingering assessment a crucial element of their craft and routinely test for it. Because this potentially places the Continued on page 18 PAGE 17

THE TEXAS PROSECUTOR Continued from page 17 examiner in opposition to the examinee s interests, evaluation in forensic settings is viewed as a professional specialty incompatible with providing treatment. 5 Other differences between forensic evaluators and the treating clinicians are summarized in Table 1, below. 6 Assessment There are several types of malingering. Less sophisticated persons may present as globally impaired, with both severe cognitive deficits and psychiatric symptoms. More sophisticated feigners may be more specific. For example, they may TABLE 1 Therapists Forensic examiners Who is the client? patient attorney or the court Goals Data Emphasis Trust Accountability Privilege Knowledge of legal issues Attitude provide treatment and support accept what the client says treatment, helping assume basic honesty anticipate little challenge to conclusions, diagnoses governed by therapistclient privilege may be unaware of legal standards, rules of evidence avoid court appearances objectively evaluate defendant or claimant corroborate examinee s statements with collateral information assessment of psycholegal issue at stake assess for malingering or attempts to create a positive impression anticipate crossexamination; consider alternative hypotheses, explanations governed by attorneyclient privilege, if any familiar with caselaw governing the issue to addressed, Daubert, and other rules of evidence accept legal proceedings as part of their work; develop testimony skills present as psychotic but cognitively intact or vice versa. Some may present with only a very specific deficit, such as amnesia, incompetence to stand trial, or hallucinations. Often, the more general the malingering, the easier it is to identify and substantiate, both through testing and collateral sources. However, techniques to assess malingering of specific disorders and symptoms are still developing. Skepticism is an essential quality of a forensic examiner, but it should never be a substitute for data. Many treating professionals lack a critical mindset; in contrast, some forensic examiners become overzealous. People with real psychiatric conditions may exaggerate. And the presence of feigning or poor effort cannot automatically be assumed to be malingering because motivations other than material gain may, rarely, be present. For example, in factitious disorders, persons adopt a sick role not for monetary benefits but because it results in caretaking and nurture from medical personnel or family members: They like the way others treat them when people think they are sick. Three sources of information are important in determining the possibility of feigning: 1) semi-structured interviews that cover various aspects of the evaluatee s life, along with the examiner s observations of manner, both during and outside the interview; 2) specialized psychological testing; and 3) collateral information from family members, treatment providers, jail personnel, and police. PAGE 18

NOVEMBER/DECEMBER 2004 Interviews and observations Interviews are important to identify collateral sources and to obtain a measure of the defendant s consistency in reporting information. Not uncommonly, a defendant may tell the forensic examiner he left school in the sixth grade after telling jail medical or administrative staff that he completed high school. Credibility issues may also arise in how information is relayed. Psychologists are increasingly identifying behavioral indications of deceit, and it appears possible to train people as reasonably good lie detectors. 7 Some of the best evidence of malingering occurs when the examinee s demeanor changes when he knows he is under observation. At the Harris County Jail, defendants can often be seen talking in an animated manner with peers in their jail tank before they re called for the assessment. When they meet the examiner at the door, they may cross their eyes and walk past the examiner as if blind. As in the previous example, many malingerers badly overplay the part, giving themselves away quickly to a seasoned evaluator. Often, malingerers are unfriendly or subtly uncooperative. They may give very brief, unelaborated answers and be reluctant to volunteer information. Sometimes they refuse to sign information release forms so medical records can be obtained or say they don t know phone numbers of family members. Before standardized tests were widely available, practitioners improvised a number of approaches to help detect malingerers. For example, they might ask very easy questions that virtually anyone, whether mentally ill, brain damaged, or mentally retarded, should know (e.g., what are the colors in the American flag?). Psychiatrist Phillip Resnick has written extensively on how persons fake psychosis, detailing the ways in which reports of malingered hallucinations are likely to differ from legitimate ones. 8 Often, malingerers will report that they have experienced hallucinations all my life and experience them all the time. This is highly atypical for actual psychiatric patients. There are many ways, some subtle, in which a dishonest defendant may become apparent while discussing psychiatric problems if the examiner is attuned to the possibility of faking. Psychological testing Formal, specialized testing is increasingly recognized as important in cases involving claimed psychiatric or cognitive impairment for two reasons: effectiveness and accountability. As indicated earlier, there are reasons to doubt the ability of most clinicians to separate false from legitimate psychiatric complaints. Further, it is unclear if clinical judgment and unstandardized tests are sufficiently reliable or acceptable under the rules of evidence and Daubert/Kelly. Almost by definition, neither a clinician s judgment nor unstandarized test results will be subject to peer review, and rates of error will be unknown. All tests of ability, including IQ tests and neuropsychological measures, require a test-taker s best effort to be valid. In a death penalty case, however, a defendant has little reason to perform well. For this reason, IQ scores from school years are likely to be more informative than testing conducted for a criminal case. Test scores obtained after the subject s arrest should be given little weight unless the defendant s effort has been formally assessed, and even then, caution is warranted: None of the major IQ tests have indices designed to detect inadequate effort. Thus, an examiner must use separate tests to assess the testtaker s motivation. It would be possible for a defendant to try hard on one and not the other, and it would also be possible for an attorney to coach a client to recognize the difference between the tests. At least among personal injury attorneys, this appears an accepted practice. 9 In the early days of neuropsychological testing, it was believed impossible to produce a credible profile on the numerous tests that make up a typical neuropsychological assessment battery. However, this belief was shattered in 1978 when a classic study found neuropsychologists unable to identify malingerers at a level that much exceeded chance. 10 A subsequent study found not one in 42 neuropsychologists identified profiles of children instructed to malinger and that the clinicians expressed high confidence in their erroneous findings. 11 Since these embarrassments, neuropsychology has developed many procedures to detect cognitive malingering. Nonetheless, clinicians may not use them regularly, particularly if they lack training in testing. Two recent tests represent the state of the art in assessing poor effort on cognitive tasks. Both are ostensibly meas- Continued on page 20 PAGE 19

THE TEXAS PROSECUTOR Continued from page 19 ures of memory, but in fact are very easy. The Test of Memory Malingering (TOMM) is widely respected 12 and appears to be unaffected by depression or other psychiatric conditions. However, two limitations have become apparent: The usual cut score is too high for persons with dementia, and some will be falsely identified as feigning. Secondly, the TOMM may be substantially less sensitive (able to detect malingerers) than its rival, the Word Memory Test (WMT). A recent study found the WMT identified 37 percent of a population involved in litigation as feigning, while the TOMM identified only 12 percent. 13 Collateral sources Collateral sources are crucial in assessing both malingering and the defendant s actual level of functioning or impairment. Traditionally, clinicians have relied primarily on the patient s report, as objective truth was of less concern than the patient s view of the situation. However, such sources are essential for forensic psychological assessment. 14 These may include medical, school, financial, and employment records; family members; supervisors; friends; employers or co-workers; and observations outside of the examination room. Information from law enforcement on the details of the offense is close to essential; it will contain reports from thirdparty eyewitnesses about the defendant s conduct. The more impairment a malingerer displays during the evaluation, the greater the burden to keep up the act over time and in different settings. There will be strong temptation to drop the act when the person believes he is not under observation or when an attractive staff member of the opposite sex wants to talk. Although generally more reliable than the defendants themselves, collateral sources cannot be taken at face value. Family members may lie to assist the defendant s malingering. Treatment providers may be manipulated to provide credible, sincere, but false testimony about the extent of the defendant s mental impairment. Jail personnel may be invested in seeing defendants punished. Records can be incomplete and even wrong. In forensic assessment, virtually no source of information should be assumed reliable. Malingering of incompetence to stand trial Defendants who malinger incompetence often do not distinguish mental illness from mental retardation and present as both psychotic and ignorant. They may say they don t know what they are charged with or what the role of their attorney or the judge is. These answers are implausible in anyone without a documented history of moderate mental retardation, serious head injury, or dementia. All the aforementioned methods may be employed, as such person will often keep up the act only as long as the examination lasts. Quite often, an examiner can document evidence of malingering from multiple perspectives, including statements of collaterals ( He just plays crazy when he gets in trouble ), discrepancy in presentation during Defendants may say they don t know what they are charged with or what their attorney s or the judge s role is. These answers are implausible in anyone without a documented history of moderate mental retardation, serious head injury, or dementia. the interview compared to interaction with medical staff or while in one s jail cell, and failing scores on measures of both psychiatric and cognitive malingering. Occasionally, a savvy defendant will fake a specific deficit directly related to competency to stand trial. To be competent, a defendant must have a rational and factual understanding of the proceedings and be able to assist his attorney with a reasonable degree of rational understanding. If the defendant cannot remember the offense, his ability to assist in his defense could be seriously questioned. 15 Of course, the issue is easily claimed and hard to disprove. However, psychologists have developed some techniques to target malingering in specific areas. Feigned amnesia can be detected by creating a forced choice PAGE 20

NOVEMBER/DECEMBER 2004 memory test. In the simplest version, the examiner assembles perhaps 20 facts that the perpetrator should know and remember from the crime. Two equally plausible answers are generated for each question. Someone with no knowledge of the crime should score 50 percent on such a test, as blind guessing would lead one to be right half the time. A malingerer may overplay the part and score below chance to a statistically significant level, thus indicating concealed knowledge of the facts. A recent, more complicated version of this technique resulted in identification of 59 percent of experimental subjects recruited to commit a mock crime and lie to investigators. 16 Other defendants may simply drop the act when faced with such a task, as one did when I tested him. A very recent development is a scale developed to gauge specific malingering of incompetence to stand trial. The Atypical Presentation Scale (abbreviated ATP to avoid confusion with a similar scale by another author) is a companion measure to the Evaluation of Competency to Stand Trial Revised, 17 a standardized competency interview. The ATP asks the defendant questions about alleged symptoms and how they interfere with perceptions and ability to function in court. In fact, most of the questions pertain to highly improbable symptoms and perceptions and are not endorsed by legitimate psychiatric patients. Originally presented merely as a screening measure for feigned incompetence, a recent study found the ATP highly effective at separating suspected malingers from defendants with legitimate psychiatric disorders. 18 Malingering of insanity A major difference between competency to stand trial and insanity at the time of the offense is temporal: An assessment of insanity involves a retrospective assessment of the defendant s mental state for which virtually no standardized, validated measures exist. Even so, given the strict definition of legal insanity under Texas law, such evaluations are often relatively easy if the examiner is experienced and knows the law. Because the defense requires the presence of a severe mental illness, a diagnosis by a psychologist or physician will be required. However, this is only the first qualifying condition, and the examiner must thoroughly understand that the diagnosis of a mental illness, even if severe, has limited relevance to the issue of insanity. Rather, the focus will be on the nature of the crime, the presence of a rational motive, and the defendant s attentiveness to the possibility of getting caught before, during, and afterward. An examiner should review the offense report and the defendant s criminal history and talk to family members and possibly the arresting officer or witnesses. Often, medical notes at the jail will provide formal mental status assessments in the first few days following the arrest. Generally speaking, records and observations close in time of the offense are most useful, but sometimes a defendant will show behavior patterns during similar psychiatric episodes. If an insanity defense is viable, a complete review of all existing psychiatric records, interviews with family members, and contact with treating professionals who have had an extended relationship with the defendant are desirable. Generally, the offenses most amendable to an insanity defense are those involving assault and trespassing; I have never seen a valid insanity defense for a case involving drugs, theft, or organized criminal activity. Attempts at malingering insanity are often surprisingly crude and easily detected by an experienced examiner. Often, a defendant may claim to hear voices at the time of the offense but fail to provide any connection between the claimed symptoms and the offense. For example, he might report hearing voices saying to kill himself. This symptom has no relevance to a dope case or burglary, even if legitimately experienced. Often, a defendant will continue to claim to hear voices at the time of the evaluation, which can be evaluated by a standardized test. If not, one should carefully examine collateral sources, such as the jail medical chart, for accounts of mental status following the offense. Usually, a legitimate candidate for an insanity defense will show obvious signs of mental illness before or after the offense. An exception is the paranoid psychoses, where a defendant may appear normal during casual encounters and may show no outward evidence of mental illness unless one asks about the topic of his delusions. Some defendants will claim that they cannot remember the crime at all. Often, they will describe waking up in jail or during their arrest. However, not remembering a crime is not the same as Continued on page 22 PAGE 21

THE TEXAS PROSECUTOR Continued from page 21 not being aware of one s actions at the time they were committed. In Mendenhall v. Texas, 19 the court addressed this issue as follows: [I]s the insanity defense available to a defendant who was unconscious or semi-conscious at the time of the alleged offense, so that it might be said of him that he did not know his conduct was wrong only because he did not consciously know of his conduct at all? We conclude the answer to that question is no. We have carefully reviewed the legislative history of 8.01(a), and nothing in it suggests that any legislators intended for the insanity defense to apply to persons who were unconscious or semi-conscious at the time of the alleged offense. Also, the fact that two other defenses the nomental-state defense and the no-voluntary-act defense are readily available to persons who were unconscious or semi-conscious at the time of the alleged offense suggests that the Legislature did not intend for the insanity defense also to apply to them. That is, persons who were unconscious or semi-conscious at the time of the alleged offense may argue either that they lacked the mens rea necessary for criminal liability, 20 or that they did not engage in a voluntary act. 21 Thus, while the defendant who claims amnesia negates an insanity claim, he potentially opens the door to complete PAGE 22 acquittal: If a mens rea or actus rea defense is asserted, it may be worthwhile to attempt to refute it through the methods discussed above. Malingering of mental retardation Mental retardation must have an onset before the age of 18. Although most cases involve delayed development since birth, some conditions develop or become apparent after an initial period of apparent normalcy, and a certain standard test allows for assigning the diagnosis following a head injury in adolescence if the injury results in severe enough impairment. There are two crucial criteria for a diagnosis of mental retardation: an IQ score near or below 70 on a standardized intelligence test Generally, the offenses most amendable to an insanity defense are those involving assault and trespassing; I have never seen a valid insanity defense for a case involving drugs, theft, or organized criminal activity. and significantly below average adaptive behavior due to intellectual limitations. Both of these conditions should be readily apparent in school records and from family members and employers accounts. Generally, mentally retarded people in the criminal justice system fall in the IQ range of 55 75. Those with a legitimate IQ below 55 are often readily identified as clearly retarded and incompetent to stand trial by almost everyone. Such persons are unlikely to regain competency because they simply lack the intellectual capacity to understand their situation and assist in their defense. A substantial number of criminal defendants are below average in intelligence, some noticeably so. However, such defendants may learn to hide their condition or play it up to their advantage. In my experience, many defendants with IQs in the borderline mentally retarded range (70 80) can convincingly adjust their performance to appear more retarded than they are. Such persons may be described as a little slow but are often capable of holding lowlevel jobs in unsheltered conditions, and most live independently and without substantial assistance. This is probably true for legitimate IQs down to about 60. The assessment of IQ is heavily dependent on the subject s effort. Some tasks require a test-taker to put forth sustained effort and concentration and allow up to two and a half minutes to solve a problem. Although examiners are encouraged to note a testtaker s apparent level of effort, there is no evidence to indicate that they can validly do so when the test-taker is not transparent about his lack of effort or persistence. Another complication is that different IQ tests are not fully comparable. Some utilize a broad assortment of tasks; others focus on only one or two. And although IQ tests are among the most reliable psychological tests (internal consistencies and test-retest coefficients typically exceed.90), it is not uncommon to see a range of 20 25 points in tests conducted over the course of a defendant s life. In such a situation, high

NOVEMBER/DECEMBER 2004 scores on respected tests appear to provide more credible evidence of intellectual ability than low score because high scores are harder to explain. There are only a few reasons someone could score much higher than he should on an IQ test: practice effects from another recent testing with the same test and cheating. The latter is improbable as the test materials and answers are not available to non-psychologists. I have heard only one story of someone successfully boosting his IQ score through coaching or cheating (a prospective NFL quarterback who took a very brief IQ test with a limited number of items). In contrast, low scores may reflect poor motivation due to many factors, including poor rapport with the examiner, feeling ill at the time of the test, or failure to value good performance. It is often assumed that school children administered an IQ test at their school are motivated to perform their best, but this is an untested assumption. Conclusion A competent evaluation of a defendant must consider the possibility of malingering. A forensic assessment should rarely if ever accept a defendant s presentation at face value, and examiners who do are opening themselves up to manipulation by criminal defendants. In most cases, detecting malingering is not difficult if an examiner is willing to look for it and has appropriate tools. At the same time, the presence of exaggeration or even faking cannot definitively rule out the presence of a mental disorder or the possibility the person might be incompetent or legally insane at the time of the offense. Information from collateral sources about level of functioning in other settings can provide data on these issues. Prosecutors and society as a whole are best served when examiners use validated measures, multiple sources of information, and do not operate on the basis of naiveté or excessive zeal. In this way those who pretend to be mentally impaired can be distinguished from those who require special consideration because of psychiatric or intellectual limitations. Editor s note: The author has eight years experience as a court-appointed examiner in the criminal justice system and can be reached via phone at 281/481-5715 or via e-mail at srubenzer@earthlink.net. Endnotes 1 U.S. v. Greer, 158 F.3d 228 (1998) 2 Richard Rogers, Clinical Assessment of Malingering and Deception (2nd Ed.) 4 (1997). 3 H. A. Miller, The Miller-Forensic Assessment of Symptoms Test (M-FAST): Test Generalizability and Utility Across Race, Literacy, and Clinical Opinion, Journal of Criminal Justice and Behavior (in press). 4 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 467 (1994). 5 S. A. Greenberg & D. W. Shuman, Irreconcilable Conflict Between Therapeutic and Forensic Roles, 28 Professional Psychology: Research and Practice, 50 (1997). 6 Adapted from S.A. Greenberg & D. W. Shuman (1997). 7 S. Porter, M.Woodworth, & A. R. Birt, Truth, Lies, and Videotape: An Investigation of the Ability of Federal Parole Officers to Detect Deception, 24 Law and Human Behavior 643 (2000). 8 P. Resnick, Malingered Psychosis, In R. Rogers (Ed.), Clinical Assessment of Malingering and Deception (2nd Ed.) 47 (1997). 9 M.W. Wetter & S.K. Corrigan, Providing Information to Clients About Psychological Tests: A Survey of Attorney s and Law Student s Attitudes, 26 Professional Psychology, Research and Practice, 474 (1995). 10 R. K. Heaton, H. H. Smith, R. A. Lehman, & A.T.Vogt, Prospects for Faking Believable Deficits on Neuropsychological Testing, 46 Journal of Consulting and Clinical Psychology 892 (1978). 11 D. Faust, K. Hart, T. J. Guilmette, & H. R. Arkes, Neuropsychologists Capacity to Detect Adolescent Malingerers, 19 Professional Psychology: Research and Practice, 508 (1988). 12 S. J. Lally, What Tests are Acceptable for Use in Forensic Evaluations? A Survey of Experts. 34 Professional Psychology: Research & Practice, 491 (2003). 13 R., Gervais, M. Rohling, P. Green, & W. Ford, A Comparison of WMT, CARB, and TOMM Failure Rates, 19 Archives of Clinical Neuropsychology 475 (2004). 14 Gary B. Melton, John. Petrilla, Norman.G. Poythress, & L.A. Slobogin, Psychological Evaluations For The Courts: A Handbook For Mental Health Professionals and Lawyers (2nd Ed.) 43 (1997). 15 Wilson v. U.S., 391 F.2d 460 (1968). 16 M. Jelicic, H. Merchkelbach, & S. van Bergen, Symptom Validity Testing of Feigned Amnesia for a Mock Crime, 19 Archives of Clinical Neuropsychology, 525 (2004). 17 R. Rogers, C. E.Tillbrook, & K. W. Sewell, Evaluation of Competency to Stand Trial-Revised Professional Manual. Psychological Assessment Resources, Inc. (2004). 18 R. Rogers, R. L. Jackson, K.W. Sewell, & K.S. Harrison, An Examination of the ECST-R as a Screen for Feigned Incompetency to Stand Trial, 16 Psychological Assessment, 139 (2004). 19 77 S.W.3d 815, 816 (Tex.Crim.App. 2002) 20 See Tex. Pen. Code 6.02(a) 21 See Tex. Pen. Code 6.01(a). See also Alford v. State, 866 S.W.2d 619, 625 (Tex.Crim.App. 1993)(Clinton, J., concurring)( voluntary act means conscious act). PAGE 23

THE TEXAS PROSECUTOR CRIMINAL LAW By Victor I. Vieth Director of APRI s National Child Protection Training Center at Winona State University in Winona, Minnesota Ending child abuse within 120 years Sound impossible? It s not folks are already working toward that goal. Here s how. In 1999, child protection leaders throughout America issued a national call to action to significantly reduce, if not eliminate, child abuse over the course of a century. 1 One of these leaders, Dr. David Chadwick, believes this victory will require keepers of a plan who will devote many decades of their lives to the effort. The keepers will keep the message alive. It will take sweat and tears. These keepers must recruit successors with similar dedication. Who, among you, are the keepers? Who will be willing to step forward and work tirelessly to keep the message alive? 2 Another child protection leader, Anne Cohn Donnelly, also sees the potential for a very different America a century or so from now, but she warns that truly ending child abuse will require adopting a far longer view than we have historically held, such as planning out our efforts over decades, not years, and likewise measuring their success over decades not years. This new approach would require flexibility and a great deal of patience. But in my own view, it is possible. Not that we will ever totally eradicate child maltreatment, but rather that we do have it within us to bring about very significant reductions in maltreatment over the long haul. 3 In response to this call, the American Prosecutors Research Institute, in partnership with the National Child Protection Training Center at Winona State University, drafted a plan to end child abuse in America within 120 years. The plan has been reviewed by dozens of the nation s leading child abuse authorities and by over 5,000 front-line child abuse prosecutors, investigators, and other child protection professionals. The plan will be published as part of a special issue of the Journal of Aggression, Maltreatment & Trauma as well as part of a book by Haworth Press. 4 In developing the plan, we targeted five obstacles to ending child abuse with which nearly everyone agrees. We then carved out a plan to overcome each and every one of these obstacles. Five obstacles to ending child abuse First, most abused children are never reported. Two decades of research tells us conclusively that most mandated reporters will not report a suspicion of abuse no matter how clear the evidence. For example, a survey of teachers found that only 26 percent would report a situation in which a child unequivocally stated he was being sexually abused by a stepfather. If the alleged perpetrator was a fellow teacher, only 11 percent said they would make a report. 5 Second, most children reported into the system will never have their allegations investigated. National studies suggest that as little as one case out of three is ever seriously investigated. This is true even when the allegation involves egregious abuse. 6 Third, most child abuse investigators, prosecutors, and other professionals are inadequately trained and inexperienced at working with child victims. Numerous studies document that child protection workers, police officers, lawyers, judges, doctors, dentists, psychologists, and most other professionals are inadequately trained to work with child victims. As one example, a recently published study of American Psychological Association (APA) accredited graduate programs found that many of the programs fall far short of guidelines proposed by the APA for minimal levels of competence in handling child maltreat- PAGE 24

NOVEMBER/DECEMBER 2004 ment cases. 7 The study finds that the lack of graduate training for psychology students contradicts the rapidly expanding literature on responding to maltreatment and the demands of this interdisciplinary, professional endeavor. 8 Fourth, even when an investigator substantiates abuse and gets a victim into the system, the child is typically older and it is more difficult to address the physical, emotional, and other hardships the abuse causes. Although abuse typically begins much earlier, the average age of victims who come to court is 10, and the median age is 13. 9 Many of these children come to court not as abuse victims but as runaways, hard-core delinquents, or child prostitutes. Fifth, child victims receive an inadequate share of our country s scarce financial resources. Although the rate of child abuse is 10 times the rate of cancer, we spend 10 times as much preventing cancer as we do preventing child abuse. 10 We spend $120 billion each year dealing with the aftermath of child abuse. 11 If we could spend just a few million more on the front end of this problem, we could save thousands of children and billions of dollars. The battle plan There are five key features to the APRI battle plan to significantly reduce and eventually eliminate child abuse in the United States. First, we must adequately prepare professionals to recognize, report, and respond to abuse. With the APRI s National Child Protection Training Center serving in an advising capacity, Winona State University is developing a model undergraduate curriculum to prepare the mandated reporters of tomorrow to perform this function. This curriculum will also provide tomorrow s child protection professionals with the necessary skills to adequately investigate a report of abuse. The concept of model curriculums will be expanded to medical schools, law schools, psychology graduate programs, and seminaries. By 2040, model child maltreatment curricula will be in every institution of higher learning in the United States so that never again will an unprepared professional deal with a child victim in need. Second, we must detect abuse at its earliest ages. In partnership with CornerHouse, a child sexual abuse evaluation and training facility in Minneapolis, APRI is developing intensive, locally run, five-day courses to teach teams of investigators the art and science of interviewing young abuse victims. These courses, entitled Finding Words, are either up and running or in development in the following states: Minnesota, South Carolina, New Jersey, Indiana, Mississippi, Georgia, Missouri, West Virginia, Maryland, Illinois, Ohio, and Kansas. 12 The goal is to have 25 state programs in place by the end of the decade and 50 statewide programs by 2020 so that never again will a young child who reports abuse be interviewed by someone incompetent to perform the task. Meeting this goal should translate into hundreds of thousands of children getting into the system when they are 3 and 4 years old, as opposed to 14 and 15. If we can get to children when the abuse is in its earliest stages, we should, a generation from now, see a national reduction in juvenile delinquency, adult crime, substance abuse, and countless other social ills associated with child maltreatment. Third, we must provide ongoing training for child protection professionals in the field. Although model curricula will reduce the need for on-the-job training, we must provide continuing education for child protection professionals. With respect to handling criminal cases of child abuse, APRI s National Center for Prosecution of Child Abuse in Alexandria, Virginia, has provided massive amounts of training to child abuse prosecutors and investigators. Each year, the center s attorneys travel to approximately 35 states and train nearly 14,000 child abuse prosecutors and allied professionals. The center also provides free publications and handles technical assistance calls. Unfortunately, Congress has not increased the center s budget in nearly 20 years. A mere inflationary adjustment to the budget would enable it to dramatically expand its work. There is also a need to provide training, technical assistance, and publications to child protection attorneys and other professionals who handle termination of parental rights and other civil aspects of these cases. This is the work of the newly created National Child Protection Training Center at Winona State University. In its first year of operation, attorneys in this center traveled to 19 states and trained 7,000 front-line child protection professionals. Fourth, we must develop prevention programs from the ground up. There are many factors contributing to child abuse Continued on page 26 PAGE 25

THE TEXAS PROSECUTOR Continued from page 25 including poverty, substance abuse, unemployment, and other factors that increase parental stress. Unfortunately, each of these factors differs from community to community. For example, one community may not have a high unemployment rate but may have a high level of alcoholism. Accordingly, prevention programs must be locally designed and tailored to community dynamics. To accomplish this, the model curricula now in development will teach tomorrow s child protection community the art of developing and funding local prevention programs. Fifth, we must reach a tipping point. We hope that these and other efforts now underway will bring what Malcolm Gladwell calls the tipping point. 13 Gladwell argues it is often the smallest things that make the biggest difference. If we can end the culture permitting child abuse, we will dramatically reduce the incidence of abuse. The APRI plan calls for accomplishing all of the above within the next 40 years. To complete the job, though, succeeding generations must duplicate and build on any successes we have and learn from and correct any failures. Accordingly, in the years 2040 2120, the child protection community must sustain the accomplishments set forth in this paper and build upon them until child abuse is no longer. Conclusion I disagree with those who say our goal should be something less than the complete elimination of child abuse; settling for less is to say that the abuse of some PAGE 26 number of children is acceptable. It is not. We should, instead, set our sights on the ultimate victory knowing that, even if we do fall short of the mark, we will end up at a far better place than at present. Editor s note: The author can be contacted at the National Child Protection Training Center, Winona State University, 227 Maxwell Hall, Winona, MN 55987; by phone at 507/457-2890 or by e-mail at victor.vieth@ndaa-apri.org. Endnotes 1 David L. Chadwick,The Message, published as part of Convening A National Call to Action: Working Toward the Elimination of Child Maltreatment, 23 Child Abuse & Neglect 957, 959 (1999). 2 Id. at 957 3 Anne Cohn Donnelly,The Practice, published as part of Convening A National Call to Action: Working Toward the Elimination of Child Maltreatment, 23 Child Abuse & Neglect 987, 993 (1999). 4 Victor I.Vieth, Unto the Third Generation: A Call to End Child Abuse in the United States Within 120 Years, forthcoming Journal of Aggression, Maltreatment & Trauma, forthcoming Ending Child Abuse: New Efforts in Prevention, Investigation, Prosecution and Training (Haworth Press 2005) 5 Maureen C. Kenny, Child Abuse Reporting:Teachers Perceived Deterrents, 25 Child Abuse & Neglect 81, 88 (2001). Journalists are echoing the work of scholars by documenting in mainstream media egregious instances of professionals failing to report unequivocal cases of child abuse. See e.g., Annette Foglino, Teachers who prey on kids: Why they re still going free, Good Housekeeping (December 2003) p. 61. 6 Andrea J. Sedlak & Diane D. Broadhurst, U.S. Dep t. of Health & Human Servs.,Third Nat l Incidence Study of Child Abuse & Neglect 7-16 (Sept. 1996). A more recent study finds that nearly 2/3rds of reports are screened into the CPS system but that investigations result in only 27.5 of the cases as being substantiated for abuse or neglect. In each of the past 5 years, abuse has been substantiated in no more than 29% of the cases accepted for referral. Child Maltreatment 2001 (Published by U.S. Department of Health and Human Services, Administration on Children, Youth and Families, Washington, D.C., U.S. Government Printing Office, 2003). This data suggests that the reporters, investigators or both are performing poorly in locating and assisting abused children. One problem may be the sheer number of reports that must be investigated.the average CPS investigator conducts 69 investigations per year more than one per week. Id. 10. Given that a quality investigation may require interviewing numerous witnesses, searching the premises where the alleged abuse took place, collecting and reviewing data from numerous other agencies, CPS investigators may simply lack the time to conduct competent investigations.this is particularly so when we recall that investigators may have many other duties as well. In rural communities, for example, the investigator is often responsible for providing ongoing services. Id. 7 Kelly M. Champion, Kimberly Shipman, Barbara L. Bonner, Lisa Hensley, and Allison C. Howe, Child Maltreatment Training in Doctoral Programs in Clinical, Counseling, and School Psychology:Where Do We Go From Here?, 8 Child Maltreatment 211, 215 (August 2003). 8 Id.at 215. To improve graduate training of psychologists, the authors recommended team-taught classes, visiting instructors, and class visits by outside professionals as means by which to increase interdisciplinary training without developing entirely new programs. Id. 9 Thomas D. Lyon, False Allegations and False Denials in Child Sexual Abuse, 1 Psychology, Public Policy and Law 429, 433 (1995). 10 Blair L. Sadler, David L. Chadwick, and Dominique J. Hensler,The Summary Chapter The National Call to Action Moving Ahead, 23 Child Abuse & Neglect 1011, 1016 (1999). 11 Prevent Child Abuse America,Total Estimated Cost of Child Abuse and Neglect in the United States (2001) found at www.preventchildabuse.org 12 For more information about this research-based interviewing program, see generally, Lori S. Holmes & Victor I. Vieth, Finding Words/Half a Nation: The Forensic Interview Training Program of CornerHouse and APRI s National Center for Prosecution of Child Abuse, 15(1) Apsac Advisor 4-8 (Winter 2003). 13 Malcolm Gladwell, The Tipping Point (2000).

NOVEMBER/DECEMBER 2004 May a county judge serve on the school board? The TDCAA office receives many questions regarding what other jobs public officials can hold. Former TDCAA law clerk, Robert Russell, compiled this handy list of answers. This chart provides a summary of Attorney General Opinions concerning specific questions of dual office holding. For positions not included below, the Attorney General's Office has provided two excellent discussions of Article XVI, Sec. 14 of the Texas Constitution, the common law doctrine of incompatibility, and their combined effect on the ability of Texans to hold more than one position of public employment. The AG documents may be found at www.oag.state.tx.us/ag_publications/txts/2004trapshb_4.sht ml and www.oag.state.tx.us/ag_publications/pdfs/2004 dualoffice _easy.pdf. Position 1 Position 2 OK to hold both? AG Opinion ADA Municipal utility district, elected director Yes, no salary LO 88-19 ADA, county School district board of trustees, same county Yes LO 89-082 Board of Trustees, ISD (specific circumstances) City council (and other boards) No LO 92-005; see also Thomas v. Abernathy ISD; JM-129; LO 90-52 Candidate, county judge Mayor Depends JM-553 Chief appraiser, multiple counties Tax assessor/collector, multiple districts Yes JM-499 Chief deputy, county tax assessor-collector Court reporter, county court Yes JM-1083 Chief of police, elected Constable, elected, precinct within same city No JM-422 City councilmember Member, school district board of trustees No LO 93-22 Constable Bailiff Yes LO 92-73 (and salaried OK, per LO 97-060) Constable Jailer Yes JM-485 Constable School board Yes JM-519 Constable, elected Public school teacher Yes LO 94-077 County attorney Board of directors, county hospital No LO 97-100 County attorney City attorney, same county Yes, so long as not subject JC-0054 to Prof. Prosec. Act County attorney School district board of trustees, same county No; automatic resignation LO 95-029 County attorney Special prosecutor, another county Yes, no salary JM-763 County attorney, elected City ADA, same county Yes LO 96-148 County attorney, elected Professor, part time, state university Yes LO 90-039 Continued on page 28 PAGE 27

THE TEXAS PROSECUTOR Continued from page 27 Position 1 Position 2 OK to hold both? AG Opinion County commissioner Board of trustees, community college (same county) No JM-129 County commissioner Reserve deputy sheriff Yes LO 97-081 County court at law judge Trustee, independent school district No JM-213 County judge Administrator, county EMS, same county No LO 94-46 County judge Director, river authority No JM-594 County judge Practicing attorney, same county gray area JC-0033; see also Govt. Code 82.064; see also Code of Prof. Resp. 1.06 County judge Records management officer, same county Yes LO 90-062 County judge Texas Board of Criminal Justice No LO 95-052 County tax assessor-collector Trustee, independent school district No; automatic resignation LO 92-004 DA Teaching position, state university Yes LO 93-96 Dept. of Public Safety officer Governing bodies; any public office No JM-588 Deputy constable Assistant city fire chief Yes DM-156 Deputy district clerk Deputy county clerk Yes MW-415 Deputy sheriff School trustee Yes O-3308 (1941) District clerk Reserve deputy sheriff Yes LO 98-035 District judge School district board of trustees, same district No; automatic resignation LO 98-094 Former district judge, sitting by assignment Teaching position, state university Yes LO 98-109 (and available for assignment) Investigator, DA s office Trustee, independent school district Yes, no salary LO 95-001 Justice of the Peace City council No; automatic resignation JM-395 Justice of the Peace Deputy sheriff or deputy constable, unpaid No, unless another county LO 92-35 Justice of the Peace Jailer No JM-1047 Justice of the Peace Juvenile law master, same county Yes LO 96-078 Justice of the Peace Public school teacher Probably yes See Attorney General publication Traps for the Unwary, part IV Justice of the Peace, appointed Municipal judge, part time, Yes JM-819, city within Justice s precinct overruling in part JM-422, reinstating O-2055 PAGE 28

NOVEMBER/DECEMBER 2004 Position 1 Position 2 OK to hold both? AG Opinion Local public official, elected Employee of state legislator Yes; salary allowed LO 98-039 in some cases Municipal employee Member, city commission, elected No, but need not LO 97-034 resign to run Municipal judge Director, Gulf Coast Waste Disposal Authority No JC-0095, LO 98-124 Municipal judge Junior College Trustee Yes JC-0216 Municipal judge Municipal Judge, another district Usually no; never if elected to both DM-428 Municipal police officer City council, different city (uncompensated) Yes LO 95-048 Peace officer; commission from Case-by-case GA-0214 more than one agency Police officer City council, another jurisdiction Yes LO 93-27 Police officer Police officer, another city No LO 92-36 Police officer Private security guard Yes GA-0256 Secretary, County DA Court reporter (occasional), same county court Yes JM-163 Sheriff Volunteer fire fighter Yes LO 93-54 State legislator Independent contractor for county government Yes LO 95-022 State representative Assistant county attorney No JC-0430 State Supreme Court Justice Board of Directors, State Justice Institute No DM-49 TDCAA s upcoming seminar schedule Elected Prosecutor Conference, December 8 10, 2004, at the Doubletree North, 6505 IH-35 in Austin. Call 512/454-3737 for reservations; see pages 30 31 of this newsletter for a course agenda and registration form. Prosecutor Trial Skills Course, January 9 14, 2005, at the Omni Southpark in Austin. Call 512/448-2222 for reservations; see pages 32 33 of this newsletter for a course agenda and registration form. Annual Investigator School, February 14 18, 2005, at the Omni San Antonio, 9821 Colonnade Blvd. Call 210/691-8888 for reservations. Civil Law Seminar, May 11 13, 2005, at the Omni San Antonio, 9821 Colonnade Blvd. Call 210/691-8888 for reservations. Prosecutor Trial Skills Course, July 10 15, 2005, at the Doubletree North, 6505 IH-35, in Austin. Call 512/374-4837 for reservations. Specialty courses (topics to be announced) are tentatively scheduled for April and June. Our second Advanced Trial Advocacy Course at Baylor University School of Law is scheduled for August. As always, visit our web site, www.tdcaa.com/seminars for more information. Online registration is available about three months prior to each course. PAGE 29

Wednesday, December 8 8:30 a.m. noon Boot Camp for the Newly Elected Tom Bridges, former District Attorney, Sinton; Bud Kirkendall, District Attorney, Seguin; Cheryll Mabray, County Attorney, Llano; Todd Clark, Attorney at Law, Austin; Ken Sparks, County Attorney, Columbus Taught by experienced prosecutors and former prosecutors, this session includes employment issues; commissioning peace officers; handling grand juries; open records/open meetings; asset forfeiture and hot checks; basic fiscal reporting; police relations; and victim/witness services. 1:00 Introduction 1:15 Ending Child Abuse Victor Veith, National Child Protection Training Center, Winona Minnesota Sound like a pipe dream? You ll be surprised at what the future may hold for our children. 2:00 Sentencing Issues and Options Shannon Edmonds, TDCAA Staff Attorney, Austin With prisons reaching capacity and future expansion uncertain, you need to arm yourself with every effective sentencing option you can find. Here s the latest and greatest in Texas law. 9:00 Special Prosecutors Rob Kepple, TDCAA Executive Director, Austin When should you get a special prosecutor? How? What law governs a special prosecutor s duties and responsibilities? 10:00 Courts of Inquiry Jaime Esparza, District Attorney, El Paso; and Bill Turner, District Attorney, Bryan Judges are using this antiquated legal procedure in some very curious ways. Learn about this unique legal animal and what you should do if one pops up in your jurisdiction. Track 1: Rural Issues (1:30 5 p.m.) 1:30 Producing a Hot Check Seminar for your Merchants Ken Sparks, County Attorney, Columbus 2:30 TDFPS Representation Update David Williams, County Attorney, San Saba, and Dr. Tony Fabelo, JFA and Associates, Austin 3:30 Training Your Local Police Steve Reis, District Attorney, Bay City 4:30 Meth Labs in Rural Jurisdictions Tim Cole, District Attorney, Montague Elected Prosecutor Conference agenda 8:30 noon Ethics Press Releases The Ultimate Writer s Guide David Newell, Assistant District Attorney, Richmond The rules of ethics carefully outline the boundaries of a proper press release, but you ve got a duty to inform the public. Here are great ideas for writing an ethical and informative press release. The New Disciplinary Rules of Procedure Scott Durfee, Assistant District Attorney, Houston Thursday morning, December 9 Thursday afternoon Friday, December 10 3:15 Legislative Issues Bruce Isaacks, Criminal District Attorney, Denton; David Weeks, Criminal District Attorney, Huntsville; Tim Cole, District Attorney, Montague; Shannon Edmonds, TDCAA Staff Attorney, Austin 4:30 Pay and Retirement Issues Ever wonder who keeps track of your business? Get an overview of the benefits from the different systems, and meet people from ERS, TDCRS, and the Comptroller s Office who manage this for you. 5:00 Adjourn 6:00 Opening reception (provided by TDCAA) 11:00 The Ultimate Rotary Club Speech Travis Koehn, Criminal District Attorney, Bellville You have all been asked to speak at public functions? What s the best use of your time from a prosecutor s perspective? Hear some great ideas from a veteran of the social-club circuit. 11:45 The 10 Best Forms for a Prosecutor s Office Noon Lunch (provided by TDCAA) and TDCAA Business Report Track 2: Big Cities, Big Caseloads (1:30 5 p.m.) 1:30 Innocence Projects in Texas The Honorable Barbara Hervey, Judge, Texas Court of Criminal Appeals; Professor Robert Dawson, University of Texas School of Law; Bill Allison, Attorney at Law, Austin; David Sheppard, Attorney at Law, Austin 2:30 Medicaid Fraud Brian Johnson, Assistant Attorney General, Austin 3:15 Child Support Issues Casey Hoffman, Assistant Attorney General, Austin 3:45 Death Penalty Issues David Weeks, Criminal District Attorney, Huntsville 4:15 Protesting Parole John Bradley, District Attorney, Georgetown The procedural rules impacting a grievance have changed, and most of us don t know it. These rules dramatically alter how to react to a grievance if one darkens your door. Be prepared. A Refresher: Pretrial Publicity, Gag Orders, Supervisory Responsibility, and Brady Chip Wilkinson, Assistant Criminal District Attorney, Fort Worth In the last year, prosecutors around the country have faced unique ethical challenges. Get up to speed on emerging ethical dilemmas.

TDCAA Registration Form Elected Prosecutor Conference at the Doubletree North in Austin December 8 10, 2004 PERSONAL INFORMATION Code ND PR Name Office Name preferred on badge Title Office address City ZIP Phone State Bar Card # E-mail address [ ] Please check here if we do NOT have your permission to distribute your e-mail address to course attendees. [ ] Please check here if you have any dietary or physical restrictions that require our assistance. Registration fee: Eligible prosecutors and prosecutor office employees are entitled to attend all training and receive applicable expense reimbursement for a $115 registration fee, which will be deposited into the Court of Criminal Appeals Texas Prosecutor Assistance Project (TPAP) account (our grant) and used to fund other TPAP training events. The reimbursement policy is set out below. Association fee: A TDCAA fee of $110 is each participant s share of costs over and above what the grant allows (for example, excess costs of on-site meals and association overhead). In addition, this fee enables TDCAA to lock in discounted hotel rates for participants and entitles them to attend all association functions, including Wednesday s opening reception and Thursday s lunch. Conference attendees who pay only the registration fee can attend all training but are not entitled to association functions. CLE and TCLEOSE credit: TDCAA has applied for 16 hours, including 3.25 hours of ethics, of CLE credit for participation. Reimbursement: TDCAA will reimburse only eligible prosecutors up to $80 per night for two nights (Wednesday and Thursday) at a hotel and up to $30 a day when meals are not provided at the conference.tdcaa will not reimburse for travel, registration fees, hotel tax, parking, taxi costs, or other extraordinary expenses. Associate members are not eligible for reimbursement. FEE (please check one) For prosecutors and prosecutor office personnel: $135 registration fee + $115 association fee ($250 total) $135 registration fee (training only) For non-prosecutors and non-prosecutor office personnel $350 PLEASE NOTE: Bring your office s best legal form (a hard copy and disk or CD) to share with the group.we will make copies and distribute them to all attendees Thursday afternoon. Signature of attendee Fax this form to 512/478-4112 or mail it to 1210 Nueces St., Austin,TX 78701. Or fill it out online at www.tdcaa.com. PAGE 31

TDCAA Prosecutor Trial Skills Course The TDCAA Prosecutor Trial Skills Course is a must for all new prosecutors.this intensive, six-day training program is designed to give new attorneys the knowledge and trial advocacy skills necessary for the efficient and effective prosecution of criminal cases in Texas.The course consists of lectures from experienced prosecutors, and experts on all aspects of the criminal trial, combined with faculty demonstrations, practice drills, and faculty-directed roundtable discussions.the course will not simply present the law but will emphasize practical pointers and advice designed to give new prosecutors a competitive edge in court. As in years past, each attendee will receive a comprehensive course binder and a copy of TDCAA s Predicate Questions Manual. Date and Time: The course begins at 4:30 p.m. Sunday, January 9 and ends Friday, January 14 at noon. Registration is from 1:00 to 4:30 p.m. Sunday. CLE Credit: The association has applied for 25 hours of State Bar CLE credit for course participation.this includes 2 3 4 hours of ethics. Hotel Information: The Omni Southpark is located at 4140 Governor s Row in Austin. Make reservations by calling 800/THE-OMNI or 512/448-2222. Room rates are $80 for a single, $110 for a double, $120 for a triple, and $130 for a quad; these rates are good until Dec. 19. Course Agenda SUNDAY,JANUARY 9 1:00 p.m. Registration opens. 4:30 p.m. Welcome & Course Introduction 4:45 p.m. What Jurors Want 6:00 p.m. Opening Reception MONDAY, JANUARY 10 9:00 a.m. Case Preparation and Discovery 9:30 a.m. Effective Jury Selection 10:45 a.m. Nuts and Bolts of DWI Jury Selection Noon Lunch (provided by TDCAA) 1:30 p.m. Jury Selection After Standefer 2:45 p.m. Jury Selection Roundtable 3:45 p.m. Effectively Using Demonstrative Evidence 5:00 p.m. Adjourn TUESDAY,JANUARY 11 9:00 a.m. Arrest, Search, and Seizure 10:45 a.m. Motions to Suppress: Identification Hearings and Confessions Noon Lunch (provided by TDCAA) 1:15 p.m. Motions to Suppress: Case Scenarios 2:00 p.m. Prosecuting Domestic Violence Cases 3:00 p.m. Effective Opening Statements 4:00 p.m. The Predicates Bowl 5:00 p.m. Adjourn WEDNESDAY,JANUARY 12 8:30 a.m. DWI Caselaw Update 10:00 a.m. Case Scenarios 11:00 a.m. Direct Examination and Officer Preparation in a DWI Trial Noon Adjourn THURSDAY,JANUARY 13 9:00 a.m. The Effects of Alcohol on Driving Task Abilities 10:30 a.m. Cross-Examination and Impeachment 11:15 a.m. Cross-Examination of the Defense Expert Noon Lunch (provided by TDCAA) 1:15 p.m. Case Scenarios 2:30 p.m. Probation Revocations 3:30 p.m. Punishment Evidence 4:00 p.m. Final Argument 5:00 p.m. Adjourn FRIDAY,JANUARY 14 9:00 a.m. Ethical Dilemmas for Prosecutors 10:30 a.m. The Lord s Work Noon Adjourn PAGE 32

TDCAA Registration Form Prosecutor Trial Skills Course at the Omni Southpark in Austin January 9 14, 2004 PERSONAL INFORMATION Code ND PR Name Office Name preferred on badge Title Office address City ZIP Phone State Bar Card # E-mail address Months of experience Number of trials court jury Current assignment [ ] Please check here if we do NOT have your permission to distribute your e-mail address to course attendees. [ ] Please check here if you have any dietary or physical restrictions that require our assistance. Registration: Eligible prosecutors and prosecutor office employees are entitled to attend all training and receive applicable expense reimbursement for a $135 registration fee, which will be deposited into the Court of Criminal Appeals Texas Prosecutor Assistance Project (TPAP) account (our grant) and used to fund other TPAP training events. The reimbursement policy is set out below. Association fee: A TDCAA fee of $115 is each participant s share of costs over and above what the grant allows (for example, excess costs of on-site meals and association overhead). In addition, this fee enables TDCAA to lock in discounted hotel rates for participants and entitles them to attend all association functions, including Sunday night s opening reception and lunch on Monday, Tuesday, and Thursday. Conference attendees who pay only the registration fee can attend all training but are not entitled to association functions. CLE and TCLEOSE credit: TDCAA has applied for 25 hours, including 2.75 hours of ethics, of CLE and TCLEOSE credit for participation. Reimbursement: TDCAA will reimburse only eligible prosecutors up to $40 per night for five nights (Sunday through Thursday) and investigators up to $40 per night for three nights (Sunday through Tuesday) at a hotel and up to $30 a day when meals are not provided at the conference. TDCAA will not reimburse for travel, registration fees, hotel tax, parking, taxi costs, or other extraordinary expenses. Associate members are not eligible for reimbursement. FEE (please check one) For prosecutors and prosecutor office personnel: $135 registration fee + $115 association fee ($250 total) $135 registration fee (training only) For non-prosecutors and non-prosecutor office personnel $350 Fax this form to 512/478-4112 or mail it to 1210 Nueces St., Austin,TX 78701. Or fill it out online at www.tdcaa.com. PAGE 33

THE TEXAS PROSECUTOR CRIMINAL LAW By Greg Abbott Texas Attorney General Criminal nonsupport How the Office of the Attorney General can help Texas prosecutors try these cases As Attorney General of Texas, I have made the protection of children one of the highest priorities of my administration. Taking care of our children includes holding parents accountable when they refuse to pay child support. I am thankful for the hundreds of thousands of Texas parents who make regular child support payments. They love their children and are involved in their lives, even though they live in separate households. The benefits to children who receive child support go beyond the financial security that regular payments provide. Research shows that children who receive regular child support also make better grades in school, are more likely to finish high school and attend college, have fewer behavior problems at school, and are more likely to see their fathers. Unfortunately, there are many children in communities throughout Texas who will never know the benefits of steady child support payments. Their parents have the ability to pay but refuse to fulfill a legal and moral duty to support their children. These mothers and fathers must be held accountable for the harm they cause. I am asking that you partner with my office to create a culture of compliance that dictates consequences to mothers and fathers who refuse to pay their court-ordered child support. Prosecuting parents for criminal nonsupport is a sure way to hold parents accountable and bring justice to the children they are neglecting. Criminal nonsupport is covered in Texas Penal Code 25.05, making it a state jail felony for an individual to intentionally or knowingly fail to provide support for his or her child younger than 18 or for a child who is the subject of a court order for child support. It is an affirmative defense that the individual could not provide support for the child. During my tenure as Attorney General, we have worked with district and county attorneys across Texas to prosecute 197 parents for criminal nonsupport. Out of these, 196 accepted a plea bargain and one went to trial but was dismissed at the request of the parent who was owed the child support. Special thanks go to District Attorneys Bill Hill of Dallas County, Chuck Rosenthal of Harris County, Dale Hanna of Johnson County, Al Schorre of Midland County, and James Eidson of Taylor County for their work with us on these cases. I am interested in expanding these collaborative efforts and have directed my staff to develop a program to work with district and county attorneys to increase the number of criminal nonsupport prosecutions. Small staffs and limited funding can make it difficult for some district and county attorneys to prosecute criminal nonsupport cases. However, the Office of Attorney General (OAG) is ready to assist prosecutors in many ways. The Child Support Division of my office directly handles more child support cases than any other entity in the nation, filing approximately one-third of all the civil suits in Texas. We serve every Texas county in 75 offices across the state and employ a staff of more than 2,000, including more than 200 assistant attorneys general (AAG). Many of the AAGs on my staff are former prosecutors. The Child Support Division handles a caseload of about one million cases and last year collected more than $1.5 billion in child support. However, we cannot independently prosecute criminal nonsupport cases we need your help. PAGE 34

NOVEMBER/DECEMBER 2004 Common defenses On occasion, prosecutors have expressed concerns about handling criminal nonsupport cases because of the reasons parents give for not paying child support. Here are some of the most popular, but they should not deter you from prosecuting. I m not the father. Somewhere, there is a court order that establishes paternity. Res judicata applies; collateral attacks on the finding of paternity are not permitted. 1 They didn t let me have a blood test. It is amazing how many men sign agreed orders establishing paternity and setting child support, only to claim later that they really wanted a paternity test. Once again, res judicata applies. In addition, paternity testing is done using a swab to collect cells from the inside of the cheek; blood samples are no longer drawn. The records are wrong; I paid the other parent in cash. Standard child support orders require that child support payments be made through a local registry or the State Disbursement Unit (SDU). 2 The OAG is required to investigate any discrepancy between the payment record of the SDU and the records of the parties. However, the person claiming the discrepancy must provide documentary evidence of payments. 3 I never get to see my child. This is an unfortunate situation, but it is not a defense for failure to pay child support. Texas Family Code 154.011 makes it clear that support and visitation are not connected. My office is engaged in a number of initiatives across the state to promote the involvement of both parents in a child s life. What the AG can do The OAG can work on child support cases only where someone has applied for our services. 4 If a parent asks you to prosecute a criminal nonsupport case and you want our assistance, send the parent to the local child support office to apply for our services. A list of these offices may be found at www.oag.state.tx.us/child/csfields.shtml. As soon as we open the case, one of our Special Enforcement Operations investigators is assigned to investigate. If the parent owing support is unable to pay, we won t bring you the case. If the pleadings to establish paternity or set support are unclear, we won t bring you the case. If the amount of support owed is uncertain, we won t bring you the case. In other words, you will get a clean case and a complete record showing that paternity was established, support was set, payments weren t made, and arrears are owed. When we bring a case to you, an AAG and one of my investigators will be assigned to assist with the case, upon request, from presentation to conviction. Our Special Enforcement Operations investigators are experienced in testifying before grand juries on criminal nonsupport cases. The AAG will offer any assistance you request throughout the case, providing answers and briefs on critical issues, as well as sitting second chair if you so desire. If you need experts to testify about policies and procedures for setting, collecting, recording, or distributing child support, we will provide experienced staff familiar with the specific case. Our staff also will work closely with your office to make the public aware of your efforts to hold parents accountable for supporting their children. We want to be your partner in these cases. In an effort to expand criminal nonsupport prosecutions, my office is preparing a handbook for prosecutors. The handbook, which will include current law, forms, and common issues, is written by former prosecutors now on our staff. Please consider joining forces with my office to create a culture of compliance that dictates stiff penalties for parents who refuse to take care of their children. Together, we can make a real difference in the lives of children who need and deserve our help. To contact the OAG regarding a criminal nonsupport case, please call Tom Hamilton, Assistant Deputy Director for Special Enforcement Operations, at 512/460-6101. Endnotes 1 See In Re E.L.P., 636 S.W.2d 579 (Tex. App. San Antonio 1982, no writ). 2 Tex. Fam. Code 154.004. 3 Tex. Fam. Code 234.0091. 4 Tex. Fam. Code 231.102. PAGE 35

THE TEXAS PROSECUTOR CRIMINAL LAW By Cindy Franklin Assistant District Attorney in Bell County Fire in the courthouse! A fire in the elevator shaft of the Bell County courthouse displaced several courtrooms, the DA s office, the district clerk, and a jury deliberating a murder case. Here s how they coped. The week of August 23 started out like any other week at the Bell County District Courts Building. Well, almost like any other week. The district attorney s office was in trial on two separate felony cases; one was a murder case where the defendant was represented by well-known Dallas defense attorney, Katherine Shelton. After a week of testimony, the murder jury was sent out to deliberate on guilt at 11:55 a.m. on Friday, August 27. As the jury took care of personal business before beginning deliberations, attorneys and retired judges were flooding into the courts building for a free CLE course offered over the noon hour. Retired District Judge Stanton D. Pemberton and a local attorney boarded the elevator and pushed the fourth-floor button, but the elevator got stuck between floors two and three. As Bell County Sheriff s personnel attempted to extract those stuck in the elevator, someone noticed smoke pouring out of the elevator shaft in the basement. In the DA s office on the third floor, reports rolled in that the building was on fire. As the attorneys from the murder trial made their way down to their offices, the deputy sheriffs began evacuation of the building. The jury was ushered out to the parking lot as a group and immediately escorted across the street to the historical courthouse, where they were placed in a conference room to begin deliberating. The fire department arrived and shut down Main Street. The employees who had been evacuated settled down on the courthouse lawn to watch and wait. After an hour, the jury came back with a guilty verdict. After another hour, most of the boss-types and supervisors had decided no one was going to get back in the building that day and let their people go home. At the end of the day, yellow police tape was strung across the courthouse doors, and the relocation process began. After the murder jury returned its verdict and was instructed on when and where to return for the punishment phase, the judge turned to Katherine Shelton, the defense attorney, and asked her the usual question of whether the defense had anything further. Ms. Shelton replied that in her experience in Bell County, some major problem always inconvenienced her. The court replied that no one in Bell County had burned down the district courthouse to specifically inconvenience Katherine Shelton, well-known Dallas defense attorney. The defense having nothing further, court was promptly recessed. The following Monday As Monday morning approached, employees learned through weekend phone chains where to report. Most of the employees, including those in the district clerk s office, the judges, and the court coordinator, were sent to other county buildings on the courthouse square. We in the district attorney s office were placed in the Agriculture Extension Building about a mile up the street. The room was already set up for us when we got there, thanks to a weekend of hard work by the DA and one of our attorneys who knows how to set up computers and phones. The first impression on walking into the situation room (yes, one room) was that a telethon was going on. Tables lined the long side of the rectangular conference room; those on the left faced a table at the front where the DA and the first assistant sat. The tables on PAGE 36

NOVEMBER/DECEMBER 2004 the right were positioned so that the secretarial staff faced the wall. Each table had two phones and one computer. One appellate attorney took one look at the setup and left. He was granted permission to work from home. The remaining 12 attorneys and staff of eight secretaries and three investigators remained in the room for three weeks. The victim assistance division was moved out after Jill Hargrove s first long phone call with a distraught victim. Frankly, our nerves couldn t take it. Even though our office is relatively small and the staff is close, we got to know one another much better during these three weeks of togetherness. We now know who talks the loudest and the most on their phones, what sorts of weird snacks people eat, and what it is After the fire, a single room (above) housed all of Bell County s assistants and investigators. A couple of women disliked the uncomfortable plastic chairs so much they replaced them with inflatable exercise balls (left). like to be an animal on display at the zoo. Some funny moments from our exile include: An attorney s mother calling and asking her daughter: Do you have someone in there with you? Staff meetings at the picnic table under an old live oak tree outside, where a pet rabbit was inexplicably housed in a cage. An attorney turning to the group late one afternoon and saying I have a PTA meeting tonight, and the whole room shouting in unison, WE KNOW! (The attorney had made a few phone calls related to the meeting, and we could hear every word.) A local officer, who was screening a case with ADA Paul McWilliams, turned to Leslie McWilliams, an ADA sitting at the table with Paul, and asked, Are you his helper? To which Leslie replied, No, I am his wife, and right now we are sharing an office. One attorney punching another attorney on the arm at a staff meeting for cooking popcorn right in the middle of everyone s office. Two attorneys bringing their exercise stability balls to sit on because the plastic chairs were so uncomfortable. During the repair process, district court was held in various locations around Belton. Other than child support hearings in the hallway of the historical courthouse, all court sessions were conducted in actual courtrooms. The most common problem was bonded defendants using the situation as an excuse not to come to court. The defense attorney would inevitably stand up and mutter the now-famous line, I think he s mixed up about where to be. Many capias warrants were issued during that stretch. Back at the ranch Three weeks to the day after the fire, the DA s office returned to its regular quarters in the district courthouse. Due to insurance regulations, staff members had Continued on page 38 PAGE 37

THE TEXAS PROSECUTOR Continued from page 37 to sign out of the building every hour and wait five minutes outside before signing back in. Once one elevator was certified, the sign-in process was eliminated. There are still major problems with the Bell County District Courthouse. The elevators are condemned as of September 2005, and the Bell County commissioners have been working for over a year to find a solution. Two public elections on constructing a new building have been held, and both resulted in a no from voters. One letter to the local newspaper editor stated flatly, They can have a new building when they agree to house inmates in tents. Obviously we have a long way to go. AS THE JUDGES SAW IT By Betty Marshall State Prosecuting Attorney s Office in Austin The top cases decided by the Court of Criminal Appeals from the term s beginning through September 29, 2004. Questions 1At Ty Wayne Johnston s trial for burning his 3-year-old stepson Christopher s hand with a lit cigarette, his wife Crystal testified that both she and Johnston had hit Christopher and his 4-year-old sister Autumn. She denied burning Christopher, however, though she admitted she had previously told a judge that she had accidentally burned Christopher when he ran into her lit cigarette. The trial court then admitted into evidence, over Johnston s objection, 12 pictures of Autumn that showed her soft tissue bruises. Were these pictures relevant to rebut the defensive theory that Crystal burned Christopher or to show the burning was not a mistake or accident? yes no 2After Troy Wayne Cross was arrested and given his Miranda warnings, he immediately declared, I am not saying anything until I get my lawyer. The same day, he changed his mind, received and expressly waived his Miranda rights, and gave a written statement to a detective. Three days later, the same detective approached Cross in jail, told him his statement did not match up with the complainant s account, and asked him to make another statement. Cross again received and waived his Miranda rights and gave a second, more inculpatory statement. Was this second statement taken in violation of the rule prohibiting custodial interrogation of an accused person who has invoked his right to counsel unless the person initiates further communication? yes no 3During voir dire at Walter Charles Gibson, Jr. s trial, the prosecutor struck veniremember 11 but not veniremember 7, even though both expressed reservations about convicting on the basis of the testimony of one witness, because veniremember 7 qualified his answer during defense questioning. The trial court denied Gibson s Batson challenge. On appeal, the 13th Court of Appeals held that the trial court s ruling was clearly erroneous and that the only difference between the two veniremembers was their race. Should the Court of Appeals have substituted its judgment PAGE 38

NOVEMBER/DECEMBER 2004 for that of the trial court in deciding whether the prosecutor s facially raceneutral explanation was a pretext? yes no 4To prove Charles Dewayne Thornton intended to commit sexual assault when he entered a woman s apartment, tugged on her pubic hair, and left with a pair of her panties, the State matched his DNA to the DNA in a rape kit submitted by the victim of a similar offense four years earlier in Arizona. Thornton was never put on trial in Arizona the only evidence connecting him to the sexual assault was his DNA, which was obtained as a result of an illegal arrest but Texas authorities learned of his identity as the perpetrator of the Arizona offense and as a possible suspect in similar offenses committed in Texas as a result of a tip from Arizona authorities. The tip did not lead directly to his arrest in Texas, however; instead, he was arrested when the female occupant of an apartment he was peeking into called 911. Should the comparison evidence that Thornton s DNA matched the rape kit DNA be suppressed because it was the fruit of the authorities knowledge of Thornton s identity, which was a by-product of the illegal arrest in Arizona? yes no 5Because James Edwin Griffin was a plea-bargaining defendant who filed no pretrial written motions and did not get permission from the trial court to appeal, he could not, under TRAP 25.2(a)(2), raise jurisdictional issues on direct appeal. Is Rule 25.2(a)(2) invalid because it abridges a defendant s substantial right under art. 44.02 CCP to appeal jurisdictional matters? yes no 6After two officers saw him park his truck on Kashmere Street and engage in what appeared to be illegal drug activity, Lakeith Lawayne Coleman was detained and asked to give his consent to a search of his truck and residence on Crane Street. Coleman agreed. No narcotics were found in his truck, but crack cocaine was found in the kitchen and dining room of his house, PCP was found in the bedrooms, and a 9-mm pistol and a.22 rifle were found in the front bedroom, along with a large amount of money, jewelry, Coleman s college ID, and two pieces of unopened mail addressed to Coleman. The utilities were registered in Coleman s name, and Coleman told a jail interviewer that he lived alone. Could a rational trier of fact have found that Coleman used the guns to facilitate possession and delivery of the drugs even though he was nowhere near the guns at the time of the search? yes no Answers 1No. Extraneous offense evidence is admissible if it is relevant to a fact of consequence in the case apart from its tendency to prove conduct in conformity with character. In the case, the pictures of Autumn showing bruises caused by both Johnston and Crystal did not make it more likely that Johnston, not Crystal, burned Christopher or that Christopher s burning was intentional, not accidental. The pictures were therefore irrelevant to prove either identity or absence of mistake, and the trial court erred in admitting them into evidence. Johnston v. State, No. 1650-03, delivered Sept. 15, 2004. 2No. In a case of first impression in Texas, the Court of Criminal Appeals holds that when a suspect invokes his right to counsel but then voluntarily initiates conversation with the police, expressly waiving his right to counsel, the rule set out in Edwards v. Arizona, 451 U.S. 477 (1981), is satisfied. Cross invocation of counsel acted like a protective Edwards bubble, but his initiation of conversation and express waiver of Miranda rights burst that bubble. The police were then free to reinitiate further conversation and obtain a further statement voluntarily made after the waiver of Miranda rights. Cross v. State, No. 1439-03, delivered Sept. 15, 2004. 3No. The term pretext is solely a question of fact; there is no issue of law. Therefore, the trial court was in the best position to make that credibility determination. An appellate court should not substitute its judgment on a credibility determination for the trial court s based on a cold record. Gibson v. State, No. 1604-03, delivered Sept. 15, 2004. Continued on page 40 PAGE 39

THE TEXAS PROSECUTOR Continued from page 39 4No. The exclusionary rule prohibits the introduction into evidence of materials and knowledge acquired during an unlawful search as well as derivative evidence up to the point at which the connection with the unlawful search becomes so attenuated as to dissipate the taint. In Thornton s case, it is debatable whether there is a causal connection between his illegal arrest in Arizona and the evidence comparing his DNA to the rape kit DNA, but several attenuating factors dissipate any taint: Over four years passed between the illegal arrest and the comparison evidence; Thornton committed similar crimes in Texas after the exclusionary rule was applied in Arizona; Texas authorities did not violate Thornton s 4th Amendment rights; and application of the exclusionary rule in Texas would have marginal or nonexistent deterrent benefits on Texas and Arizona authorities. As a result, derivative evidence that is the product of an illegal arrest in another state is not suppressible in a Texas prosecution. Thornton v. State, No. 080-03, delivered Sept. 22, 2004. 5No. The language of Rule 25.2(a)(2) is substantially the same as the language of the 1977 amendment to art. 44.02, which provides that a plea-bargaining defendant may appeal only with permission of the trial court except on those matters raised by written motion filed prior to trial. Because the right to appeal is guaranteed only by statute and the legislature did not make an exception for jurisdictional appeals, the requirements of Rule 25.2(a)(2) are consistent with the initial legislative intent and do not impermissibly abridge the right to appeal. Griffin v. State, No. 1092-03, delivered Sept. 29, 2004. 6Yes. A defendant s proximity to the guns at the time of the search is not dispositive of the question of whether he used the weapons to facilitate his possession and distribution of narcotics. Here, the evidence was sufficient to prove Coleman used a deadly weapon to protect his drugs and drug proceeds because the guns were found in close proximity to the drugs, money, and jewelry; the same room contained his college ID and unopened mail; and there was evidence he lived in the house alone. Coleman v. State, No. 1466-03 and 1480-03, delivered Sept. 29, 2004. Prosecutor in Clara Harris trial responds to made-for-tv movie By Mia Magness Assistant District Attorney in Harris County Having prosecuted Texas v. Clara Harris, my curiosity was piqued when I discovered that CBS was airing a madefor-television movie about the murder. Entitled Suburban Madness, it told the story from the perspective of Bobbi Bacha (played by Sela Ward), a private investigator hired by Clara Harris (played by Elizabeth Peña) days before taking her husband s life. Because I was never contacted by anyone connected Sela Ward and Elizabeth Peña star in Suburban Madness. Photo courtesy of CBS. with the project to verify facts, I anticipated some inaccuracies. Still, I was shocked by how numerous and blatant they were. Certainly, the misrepresentations were intentional and those responsible would defend them claiming artistic license, but nonetheless, as I watched the program, I was disappointed at the distortion of the events surrounding David Harris murder and Clara Harris prosecution. Even more disturbing was the movie s portrayal of Clara Harris as victim and heroine. Near the end, Bacha s character, serving as narrator, suggests to the viewer that Harris was unjustly sentenced to the 20-year maximum despite a plea of leniency from David s parents. The narrator snidely comments that as the prosecutor in the case, I had missed the boat entirely in suggesting to the jury that Harris proper recourse upon discovering David s infidelity was divorce. Bacha states that Harris conduct was the result of a life-anddeath fight for her family, and it was merely her survival instincts kicking in that led to her husband s death. The narrator then asks the viewing audience, Wouldn t you kill to save your family? Never mind that it defies logic that killing your husband will save your family it is also astonishing that the writers portray Clara Harris actions as pure and motivated by profound love. The fact of the matter is that Clara Harris conduct was the result of the most basic of human emotions: anger.there is nothing loving, heroic, or praiseworthy about her wanton disregard for the sanctity of David s life. The program suggests to the viewer that Harris, a loving, devoted wife and mother, is the victim.to further drive home that point, it shows an incarcerated Harris reading to her twin sons. The program completely glosses over the pain and suffering David Harris endured in the moments before he died, the trauma his daughter experienced in witnessing the killing, and the lasting effects on all three of his children. It was offensive to me that the real victims in this case were so easily disregarded in exchange for entertainment value. I was left irritated, frustrated, and disappointed after watching the movie. The program stopped just short of condoning the murder. No matter how understandable Clara Harris rage, betrayal, or desperation may be, were the producers of this program really suggesting that we as a society should condone her actions? Clara Harris as victim and heroine? Come on, Hollywood! Am I really the one who missed the boat entirely? PAGE 40

NOVEMBER/DECEMBER 2004 While the origins of poker date back to the Chinese around 900 A.D., the modern game played in the United States derived from steamboats traveling from New Orleans up the Mississippi and Ohio Rivers in 1834. The game then spread via wagon and train. Modifications such as stud poker, the draw, and the straight became popular during the Civil War. 1 In 1909, two Missouri assemblymen introduced a bill to the state legislature to control and license poker players in order to prevent millions of dollars lost annually by incompetent and foolish persons who did not know the value of a poker hand. 2 In 1910, Nevada made it a felony to run a betting game. The Attorney General of California declared that draw poker was based upon skill and therefore the anti-gambling laws could not stop it. But stud poker was illegal, as it was based solely on chance. With this decision, draw poker games developed and grew, causing Nevada to reverse itself in 1931 and legalize casino gambling. CRIMINAL LAW By Markus Kypreos TDCAA Research Attorney A hold on Texas Hold Em? Poker s popularity has grown nationwide, and local tournaments are popping up throughout Texas. But are they legal? Modern day The advent of televised poker has created a national poker phenomenon that continues to grow. ESPN s World Series of Poker, the Travel Channel s World Poker Tour, Bravo s Celebrity Poker Showdown, and Fox s Showdown at the Sands have all exceeded ratings expectations, so much so that you can turn on a TV almost anytime and find a tournament poker game. But why has a game that was invented 1,100 years ago suddenly become the hottest event on television? You re watching some of the steeliest nerves betting your mortgage on a single hand you re talking about hundreds of thousands of dollars changing in the turn of a card, says the Travel Channel s James Ashurst. You really can t believe it until you see it. 3 A local poker game s legality It s no surprise that the popularity of poker on TV has led to a growth of home games and local tournaments. Bars and restaurants are even advertising weekly poker tournaments. Unfortunately, these public tournaments are illegal. Penal Code 47.02(3) states that a person commits an offense if he plays and bets for money or thing of value at any game played with cards, dice, balls, or any other gambling device. Poker is obviously a game played with cards, but what is a thing of value? Thing of value 4 means any benefit but does not include an unrecorded and immediate right of replay not exchangeable for value. If the chips have a monetary value or are worth points that can later be redeemed for rewards or prizes, the game is illegal. The defense There is one important gambling defense that may apply. Penal Code 47.02(b)(1) allows for a defense if: the actor engaged in gambling in a private place; no person received any economic benefit other than personal winnings; and except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants. All three elements must be present for the defense to apply. Public vs. private. There is an important distinction between a public and private place. A public place includes those areas open to the public 5 whereas a private place means exactly the opposite and is defined as places which the public does not have access. 6 A restaurant, bar, or mall are all public places and thus gambling for money or a thing of value in such a venue is illegal. Continued on page 42 PAGE 41

THE TEXAS PROSECUTOR Continued from page 41 Economic benefit. The social gambling defense may protect the Friday night card game in Joe s living room as long as it s a private affair and Joe doesn t cut the pot to pay for beer and sandwiches. But even privately held poker games can be illegal. In Gaudio v. State, 7 a group of friends gathered at an apartment rented by the defendant to play poker three nights a week. The group agreed to cut the betting pot from each hand to pay for the expenses connected with keeping the apartment to play poker. The group hired a dealer and a waitress to serve food and drinks during the games. The dealer was convicted of unlawfully keeping a gambling place, a Class A misdemeanor. The court analyzed the meaning of economic benefit and its application to poker. The Penal Code defines benefit as anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested. 8 Economic means pertaining to the production, development, and management of material wealth or finances. 9 The statute s plain language states that no person can receive an economic benefit. In this case the waitress and dealer received tips from the players, an economic benefit to a person gambling there. Therefore, someone who gambled at the apartment received an economic benefit other than personal winnings. Finally, the court concluded that paying rent that another is legally obligated to pay is an economic benefit to that person. PAGE 42 Risks of winning and losing are the same. The court in Miller v. State 10 explains this concept the best. If the odds of the game are stacked in favor of one party, Subsection (b)(3) excludes the defense. However, the equal risks and chances requirement refers only to the If you haven t encountered an illegal poker club yet, it s only a matter of time. rules of the game, not to the advantages that accrue to a skilled player. Therefore, a game that ensures a percentage to the house or banker, regardless of the luck or skill involved, is not a friendly game to which the defense applies; but the presence of a superior, even professional player, who relies on skill and luck, does not vitiate the defense. 11 Games such as blackjack and craps are illegal because the house holds a clear odds advantage over the players. In poker, everyone has the same chance to draw pocket aces or more commonly, the worst hand in poker, the 7-2. Thus, the odds are equal. The poker club Two blocks from the TDCAA office, a sign hangs from a restaurant balcony: Free Texas Hold Em Tournament Every Saturday. This has become an alltoo-common attempt to circumvent the law. These poker clubs, which use local restaurants and bars to hold their tournaments, eliminate the entry fee and allow the public to play for free. They then award the winners points. Over several months, players can use their points to redeem valuable rewards and prizes. Some establishments even award vacations. So why are these poker clubs illegal? First, they are usually held in a public place. Second, players usually play for some economic benefit; even though this benefit may be deferred to a later time, the benefit is won or lost during the game. Not only are players committing a Class C misdemeanor by gambling, but these restaurants and bars also are keeping a gambling place, a Class A misdemeanor. If you haven t encountered an illegal poker club yet, it s only a matter of time. Some jurisdictions have already begun cracking down. On April 25, 2003, DPS Special Crimes raided the Austin Poker Club. Two men were arrested and charged with gambling promotion and keeping a gambling place and $15,000 and various gambling paraphernalia were seized. Almost a year later, on February 26, 2004, officers raided the Redmen s Club in Austin. While no entry fee was required, the club took a voluntary donation, and a portion went to the club s charitable organization. Organizers also employed paid, tipped dealers. All players were issued citations for gambling. Conclusion Since its inception, poker has been a game for gamblers who play a little for pride but mostly for money. While the point, like most games, is to win, the majority of players crave the possibility of a reward or cash to keep the game exciting. If it leads to playing poker in public for money, the game is illegal. Remember, for any poker game played

NOVEMBER/DECEMBER 2004 in public, there can be no betting for money or a thing of value, which includes past, present, or future rewards or prizes. If you want to play legal poker for money or prizes in Texas, you only have one option: play in a private place and leave only with your personal winnings. Otherwise, I ll see you in Las Vegas. Endnotes 1 World Poker Tour: Brief History of Poker, www.worldpokertour.com/pokercorner/history/ 2 Poker: A Guaranteed Income For Life, Appendix A: History, www.neo-tech.com/poker/appendixa.html 3 Nancy Chandross, Dealing Up Ratings:TV Networks Bet on Poker and Win Big, www.abcnews.go.com/ sections/business/entertainmnet/poker_ratings _04304-1.html, March 4, 2004. 4 Tex. Penal Code 47.01(9). 5 A public place is defined as any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops. Tex. Penal Code 1.07(40). 6 A private place means a place to which the public does not have access, and excludes, among other places, streets, highways, restaurants, taverns, nightclubs, schools, hospitals, and the common areas of apartment houses, hotels, motels, office buildings, transportation facilities, and shops. Tex. Penal Code. 47.01(8). 7 1994 Tex. App. LEXIS 3411. 8 Tex. Penal Code 1.07(7). 9 Id. 10 Miller v. State, 874 S.W.2d 908; (Tex. App. Houston [1st Dist.] 1994, pet. ref d). 11 Id. at 913. CRIMINAL LAW By David C. Newell Assistant Criminal District Attorney in Fort Bend County What s the Mata here? Breath test results and retrograde extrapolation testimony before and after Mata v. State When Mata v. State was decided, prosecutors across the State began to ask individually and collectively, Did I miss something? On the issue presented in Mata, there seemed no logical explanation for why the Court of Criminal Appeals would not allow the technical supervisor, a man of impeccable qualifications, including extensive personal observations of the alcohol absorption and elimination process, to testify about a range of possible breath alcohol concentrations extrapolated from a breath test taken some time after a DWI arrest. But even that conclusion was easier to explain than the almost apoplectic glee with which defense attorneys began using Mata to try and suppress the breath test results themselves. I hope this article will shed some light on these issues. What Mata v. State does and does not do Most prosecutors are very familiar with two sentences (and the accompanying footnotes) in Mata v. State. The first one goes like this: To clarify, we are not addressing whether retrograde extrapolation is necessary in order for the State to prove a defendant guilty in a DWI case. 1 The second one continues, Nor do we address whether test results showing a defendant s BAC at some time after the alleged offense are admissible at trial in the absence of retrograde extrapolation. 2 It has become something of a paradox that prosecutors tend to remember Mata (and defense attorneys rely upon it) more for what it specifically does not decide rather than what it does. Mata s holding is not all that groundbreaking: retrograde extrapolation testimony is subject to scientific evidence analysis under Rule 702 of the Texas Rules of Evidence. Go figure. The Court of Criminal Appeals even noted that retrograde extrapolation testimony may be reliable in a given case. Significantly, however, the court noted three different factors that increase the reliability of the opinion: 1) multiple Continued on page 44 PAGE 43

THE TEXAS PROSECUTOR Continued from page 43 tests, 2) a test nearer to the time of the offense, and 3) more personal information about the subject. The troubling thing about Mata for law enforcement is that Mata held that retrograde extrapolation testimony was inadmissible in what could be characterized as a fairly typical DWI breath test case. As the court noted: There was only one test of Mata s BAC, and it occurred over two hours after the alleged offense. This is a significant length of time and seriously affects the reliability of any extrapolation. Add to that the fact that McDougall did not know one single personal characteristic of Mata he did not know whether Mata had eaten anything that night and if so, how much; how much Mata had had to drink; what Mata had been drinking; when Mata s last drink was; the length of Mata s drinking spree; or even Mata s weight. 3 Fortunately for law enforcement, the court did provide one helpful caveat: Obviously, not every single personal fact about the defendant must be known to the expert in order to produce an extrapolation with the appropriate level of reliability. At least two courts of appeals have noted this in holding that the retrograde extrapolation testimony was reliable and properly admitted. 4 Of course, in those cases, the technical supervisor was aware of more personal characteristics than the technical supervisor in Mata. A not-so-brief history However, despite Judge Keasler s almost Herculean efforts to render a fairly discrete opinion, Mata seemed to re-raise the issue of whether relation back testimony is necessary in DWI cases. 5 Indeed, even in Stewart v. State (the opinion that should have put the issue to rest once and for all), Judge Womack notes in a concurring opinion that Stewart does not resolve the problem that faces trial courts: whether to admit breath-test results without extrapolation evidence. 6 How Mata created this problem when it admittedly did not touch the issue and when other cases before it had brushed retrograde extrapolation aside is about as deep a mystery as how many licks it takes to get to the center of a Tootsie Pop. The world may never know. What we do know is that this defense argument is definitely not new and has been around at least since 1979. 7 In Annis v. State, the Court of Criminal Appeals rejected the need for retrograde extrapolation testimony to prove a case beyond a reasonable doubt (a much higher burden than the mere admission of evidence) based upon a statute that allowed for the presumption of intoxication upon a showing of alcohol concentration: We find no merit in appellant s argument that a breathalyzer test administered one hour and twenty minutes after his arrest is of no meaning. 8 The Court of Criminal Appeals explained that the defendant had specifically argued that the evidence was legally insufficient because a test delayed by an hour could possibly show a higher level of alcohol because of the time gap between the point of consumption and the point at which the alcohol is absorbed into the system. The court even went as far as rejecting the defendant s argument that more than one breath test should be required to determine if a defendant was still accumulating alcohol from drinks within an hour of the test. Ultimately, the Court of Criminal Appeals held that evidence of intoxication was sufficient with the breath test and the opinion testimony of the arresting officer regarding that officer s observations of the defendant. This sentiment was echoed in 1986 when the Court of Criminal Appeals noted, albeit in dicta, that the jury must still be convinced beyond a reasonable doubt that an inference can be made from the results of the chemical test that the defendant had a 0.10 percent alcohol concentration in his body at the time of the offense. 9 However, the court also noted that if the State relies upon the 0.10-percent definition of intoxication, then such proof will normally appear in the form of a chemical test showing the alcohol concentration in a defendant s body near the time of the offense. So, while the court recognizes, at least implicitly, that the State will introduce evidence of a breath test regardless of the existence of retrograde extrapolation, the court also seems to recognize that there must be other evidence allowing the jury to infer the alcohol concentration at the time of driving to get a conviction. The language in Forte v. State gave rise to a line of cases recognizing that PAGE 44

NOVEMBER/DECEMBER 2004 proof under the per se definition of intoxication is not mutually exclusive of proof under the loss of faculties definition of intoxication, and therefore breath test results should be considered in conjunction with police officer observation. 10 Most notably, the Texas Supreme Court recognized that unextrapolated breath test results provide at least more than a scintilla of evidence supporting a driver s license revocation for driving while intoxicated. 11 Courts of appeals have recognized that un-extrapolated breath-test results in conjunction with the failure of field sobriety tests on the roadside tend to make it more probable that a breath test taken at some time afterwards accurately reflects the defendant s condition at the time of driving. 12 While there is one case that has held that un-extrapolated breath test results were insufficient evidence to exclude every reasonable hypothesis other than guilt, the case is apparently no longer good law as it utilized the nowdiscarded reasonable hypothesis test for weighing the sufficiency of the evidence. 13 No Texas cases have held that breath test results are inadmissible without retrograde extrapolation testimony (except Stewart, which was later reversed). That s right. No cases. Instead, two cases (before Mata) have specifically It has become something of a paradox that prosecutors tend to remember Mata (and defense attorneys rely upon it) more for what it specifically does not decide rather than what it does. held that breath test results were admissible without retrograde extrapolation testimony even in the face of Rule 401 and Rule 403 objections. The Fourteenth Court of Appeals squarely held that breath test results (0.11 and 0.12) taken two and a half hours after an accident were relevant and the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. 14 The Corpus Christi Court of Appeals also reached the same conclusion regarding the admissibility of the alcohol concentration without any detailed discussion. 15 After Mata, three courts of appeals held that breath test results were admissible without retrograde extrapolation. The Fort Worth Court of Appeals allowed breath test results without retrograde extrapolation because of the additional evidence that proved the case. 16 Later, Fort Worth allowed un-extrapolated blood test results of 0.1432 and 0.1488 taken almost two-anda-half hours after a traffic accident. 17 The Fourteenth Court of Appeals also held (twice in approximately 45 days) that breath test results were admissible without retro- More dramatic grade extrapolation. 18 still, the Austin Court of Appeals has recognized that a breath test four-and-ahalf hours after an accident was relevant (without deciding the Rule 403 issue) to show the loss of normal use in an intoxication manslaughter case. 19 What s up with San Antonio?: Bagheri and Stewart With Austin s Sixth Street and Democratic leanings, you would have thought it would have proudly carried the flag for irresponsible party-going. But, with Daricek coming out of the Austin Court of Appeals, it looks as if the Riverwalk City has taken it upon itself to protect revelers across Texas (despite being the site of the recent State Republican Convention). It is interesting to note that originally, the San Antonio Court of Appeals upheld the admission of retrograde extrapolation testimony in both Mata v. State and Hartman v. State. 20 In both cases, the San Antonio Court of Appeals cited technical supervisor, George McDougall s impeccable qualifications, including extensive personal observations of the alcohol absorption and elimination process. 21 Then, the San Antonio Court of Appeals overruled Hartman on its own in Bagheri v. State and held that the erroneous admission of unreliable retrograde extrapolation testimony was not harmless error. 22 As it turns out, Bagheri is still good law for the proposition that the erroneous admission of retrograde extrapolation testimony is, or can be, harmful error. 23 In affirming Bagheri, the Court of Criminal Appeals held that on the one hand a strong loss of faculties case doesn t necessarily lessen the impact that retrograde extrapolation testimony Continued on page 46 PAGE 45

THE TEXAS PROSECUTOR Continued from page 45 has on the jury, but on the other hand the judges disagreed with the court of appeals that there was harm just because you can t tell which theory the jury relied upon to convict. This compromise is consistent with cases such as Daricek because proof under one theory affects proof under the other, or as the Court of Criminal Appeals wrote in Bagheri, [E]vidence to prove intoxication under either definition is relevant to the single question of whether appellant was, in fact intoxicated. 24 The Court of Criminal Appeals also suggests in Bagheri that the State must still show the relevance of breath test results to the defendant s alcohol concentration at the time of driving. 25 According to the court, the legislature s determination that breath test results are admissible without the necessity of showing the tests scientific basis doesn t relieve the State s burden to show that the results are relevant in the sense that they accurately reflect the subject s alcohol concentration at the time of the offense. By so holding, the Court of Criminal Appeals rejected the argument that section 724.064 of the Texas Transportation Code makes breath test results absolutely admissible without regard to the rules of evidence. However, it can be argued that this reading of section 724.064 renders that section of the Transportation Code meaningless in exchange for an ad hoc appellate determination of which rules of evidence haven t been overborne by the statute. How, for example, is it PAGE 46 that the legislature intended the word admissible to render part of Rule 702 inapplicable without disturbing the applicability of Rules 401 and 403? That issue is currently facing the San Antonio Court of Appeals in Stewart on remand. The end(?) and beginning: Manning and Stewart Finally, the Court of Criminal Appeals held that un-extrapolated breath test results acquired 80 minutes after the stop are relevant to intoxication by reversing the San Antonio Court of Appeals in Stewart v. State. 26 First, the Court of Criminal Appeals explained that while un-extrapolated breath test results are not conclusive proof of intoxication, they are still probative evidence of intoxication and consumption of alcohol. Second, the court also rejects the San Antonio Court of Appeals argument that the un-extrapolated test results are no evidence of intoxication by explaining that the court of appeals erroneously relied upon Bagheri and two Pennsylvania cases that statute superseded. Finally, the Court of Criminal Appeals rejected the argument that unextrapolated breath test results encourage juries to perform their own retrograde extrapolation. According to the Court of Criminal Appeals, the breath test results were pieces in the evidentiary puzzle for the jury to consider in determining whether Stewart was intoxicated at the time she drove. Additionally, the court noted that the jury wasn t encouraged to engage in its own retrograde extrapolation because the jury did not need to establish the exact blood alcohol concentration at the time of driving, only whether that concentration was above 0.10. While the Court of Criminal Appeals left open the Rule 403 issue, we may already have an answer in Manning v. State. Manning was a vehicular manslaughter case where the recklessness alleged included consumption of a controlled substance. 27 The judge admitted, over objection, evidence of cocaine metabolite in the defendant s body over an hour and a half after the offense. When the judge was later asked to reconsider his rulings, the trial court noted that cocaine was a red flag for everyone and hinted that if the cocaine in the defendant s blood was not enough If evidence suddenly became inadmissible because it was capable of more than one interpretation, then either we d have to have a trial before every piece of evidence came in or we wouldn t have any more trials. to affect the defendant s driving, then it would be unjust to allow the jury to assume that it would. The defendant objected to the testimony s admission on 403 grounds as well as extraneous offense grounds. At the close of evidence he argued that allowing the testimony had put a skunk in the jury box because the State s witness had testified that the amount found in the defendant s blood stream was a trace amount

NOVEMBER/DECEMBER 2004 that would have had no effect on the driving. The court of appeals held that the evidence was relevant, but the danger of unfair prejudice outweighed any probative value, citing Forte and Owen. 28 Judge Keasler quite compellingly wrote that the evidence of cocaine ingestion was not an extraneous offense because it was evidence of the charged offense. 29 Significantly, the Court of Criminal Appeals went on to explain that the blood test results were compelling evidence of cocaine ingestion, and the court of appeals holding that the lack of extrapolation testimony regarding the blood tests confused sufficiency with admissibility. The fact that this evidence may not have been sufficient, by itself, to prove that Manning s actions were the result of his ingestion of cocaine does not detract from the fact that the evidence of the metabolite was strong evidence that Manning had consumed cocaine. But wait! That s not all. Stewart clarifies the crucial distinction between prejudicial evidence and unfairly prejudicial evidence. The court noted that all evidence against an accused will be prejudicial but that evidence does not become unfairly prejudicial unless it tends to prove an adverse fact not properly in issue. In this case, the evidence of the defendant s blood test results were not unfairly prejudicial because it pertained to an allegation in the charging instrument. The court acknowledged that there was some risk the jury could have convicted the defendant solely because it believed the defendant was a cocaine user, but that risk did not substantially outweigh the probative value of the evidence when the evidence specifically pertained to an allegation in the indictment. On that note, the court also determined that the time needed to develop the blood test results was also not excessive because it was proof of the indicted offense. Manning provides proponents of breath test evidence some ammunition to overcome a Rule 403 objection. Currently, the Court of Criminal Appeals is set to consider the application of Rule 403 to un-extrapolated breath test results under facts similar to those in Stewart in State v. Mechler. However, Mechler is a State s appeal, which requires the State to overcome the great amount of deference usually paid to trial court decisions to admit or exclude evidence. At most, Mechler will only determine that a test one-and-a-half hours after the stop is admissible. Unfortunately, that means the issue could continue to mutate and infect Texas jurisprudence for many years to come. Oh [expletive deleted]! I have a breath test case! What do I do now? Wear sunscreen. If I could offer you one tip for the future, sunscreen would be it. The long-term benefits of sunscreen has been proven by scientists, whereas the rest of my advice has no basis more reliable than my own meandering experience. I will dispense that advice now: 1 30 Do I need retrograde extrapolation testimony to get the results in? No. There are no Texas cases that hold such results are inadmissible evidence. Stewart v. State says un-extrapolated results are relevant, but subject to a 403 analysis. Manning v. State seems to suggest that un-extrapolated results will pass a 403 analysis. Oh yeah, and if that s not good enough, Verbois v. State, Doyle v. State, Garcia v. State, State v. Mechler, Price v. State, and Torres v. State all say it comes in without retrograde extrapolation. Even if that could change in the future, the future is not now (my apologies to staunch advocates of consumer culture). 2Okay, Mr. Wizard, what about sufficiency? Do I need retrograde extrapolation to affirm the conviction? That is the next big question isn t it? The quick answer is that O Neal v. State says you still get a per se intoxication instruction in the jury charge even without retrograde extrapolation. So, implicitly, that should get you past a directed verdict and maintain your conviction on appeal even without retrograde extrapolation. What do you say to the defense argument that O Neal pre-dates Mata? State v. Mechler has some very good language that indicates all the cases before Mata should not be ignored simply because they pre-date Mata. 3So what if I want to do retrograde extrapolation? How many personal characteristics do I need? Now how am I supposed to know that? I mean, really. You d probably be better off asking Dionne Warwick and her psychic friends. 31 What I can tell you is a few cases have held the retrograde extrapolation testimony reliable. Bhakta v. State and Urquart v. State admitted the testi- Continued on page 48 PAGE 47

THE TEXAS PROSECUTOR Continued from page 47 mony where the expert knew some drinking facts, the defendant s height and weight, and in the case of Bhakta, the defendant s last meal and the time of it. Conversely, Owens v. State held the admission of the testimony to be error where the expert only knew height, weight, gender, and last meal. Right now there is no way to tell which factors are more important than others, but drinking facts were presented in the cases that passed muster. 4Arguments to consider. Just because a piece of physical evidence is capable of more than one interpretation doesn t make that evidence unfairly prejudicial. All evidence is essentially capable of more than one interpretation; otherwise closing arguments would be boring. Consider, for example, how many interpretations you can draw out of the absence of fingerprints. Or, think about the last time you introduced a piece of evidence that you thought was pretty damning. Didn t defense counsel get up and argue that that piece of evidence didn t really indicate what you said it did? If evidence suddenly became inadmissible because it was capable of more than one interpretation, then either we d have to have a trial before every piece of evidence came in or we wouldn t have any more trials. Could someone please tell me what the unfair prejudice is? Is the breath test unfairly prejudicial because it s like an extraneous offense? Does it suggest an emotional basis? We know it s not that the jury has to perform its own retrograde extrapolation without the necessary information thanks to Stewart. No Texas cases have held that breath test results are inadmissible without retrograde extrapolation testimony (except Stewart, which was later reversed).that s right. No cases. Defense arguments never identify what amounts to unfair prejudice. Manning, however, explains what unfair prejudice is very well. Perhaps a useful comparison would be between breath test results after the stop and a prior DWI. The unfair prejudice of the prior DWI is that people will draw the impermissible inference based upon character conformity (character inferences are specifically excluded by the rules). In contrast, the jury doesn t draw an impermissible inference from the un-extrapolated result because even defense arguments concede that one likely possibility is that the defendant s alcohol content was greater at the time of driving than the test. That s not an impermissible character-based inference, it s an inference from a physical fact. Use your standards of review. This whole three possibilities argument is really just a resurrection of the nowdefunct reasonable hypothesis theory for legal sufficiency. Aren t defense attorneys really just arguing that we have to exclude the reasonable hypothesis that a person could have been below the legal limit at the time of driving before we even admit the test results? If we don t have to exclude every reasonable hypothesis to prove a case legally sufficient, then we should not have to do it just to admit the evidence because the threshold for admissibility should be a much lower burden than supporting the entire conviction (especially under an evidentiary framework that favors admissibility). We don t have to disprove alternative theories to overcome a factual sufficiency review; it should not be necessary to do so simply to introduce breath test results. Capital murder jury verdicts can be upheld for legally and factually sufficient evidence even when the jury could have entertained a reasonable doubt. The question on legal sufficiency is whether a jury necessarily had to entertain a reasonable doubt. Why should evidence be inadmissible because it is merely possible that an inference against guilt could be drawn from the test result? Argue that we should not be held to a higher standard of review on the admissibility of evidence than on a legal sufficiency review. If we are held to such a high standard, we ll end up having trials within trials. Conclusion When looking at the entire scope of Texas law on this issue, the lack of retrograde extrapolation in DWI cases appears to have been at most a minor stumbling block. Only one case has ever held that breath test results themselves should not come in without retrograde extrapolation testimony. Similarly, the PAGE 48

NOVEMBER/DECEMBER 2004 only case that has ever held evidence insufficient due to a lack of retrograde extrapolation was decided under nowdiscarded standard of review. In contrast, several cases have specifically held that retrograde extrapolation is not necessary to admit breath test results or sustain the conviction. However, if you are faced with a trial court that is nonetheless Mata-fied of breath tests, I hope this article has given you some tools to help assuage some of those fears. And trust me about the sunscreen. Endnotes 1 Mata v. State, 46 S.W.3d 902, 910 (Tex. Crim. App. 2001). 2 Id. 3 Id. 4 See e.g. Urquhart v. State, 128 S.W.3d 701, 706 (Tex. App. El Paso 2003, pet. ref d.); Bhakta v. State, 124 S.W.3d 738, 741 (Tex.App. Houston [1st Dist.] 2003, pet. stricken). 5 See e.g. Douthitt v. State, 127 S.W.3d 327, 336 (Tex. App. Austin 2004, no pet.)( The tenor, if not the text, of the Mata opinion suggests that without reliable retrograde extrapolation, the test results in this cause did not assist the jury in deciding whether appellant s alcohol concentration was at or above the per se level of intoxication at the time of the accident. ). 6 Stewart v. State, 129 S.W.3d 93, 98 (Tex. Crim. App. 2004). 7 Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979). 8 Id. 9 Forte v. State, 707 S.W.2d 89, 95 (Tex. Crim. App. 1986)(emphasis in the original). 10 See e.g. Daricek v. State, 875 S.W.2d 770, 773 (Tex. App. Austin 1994, pet. ref d). 11 Mireles v.texas Dept. of Public Safety, 9 S.W.3d 128, 132 (Tex. 1999). 12 O Neal v. State, 999 S.W.2d 826, 832 (Tex. App. Tyler 1999, no pet.); Martin v.texas Dept. of Public Safety, 964 S.W.2d 772, 776 (Tex. App. Austin 1998, no pet.); Wagner v. State, 720 S.W.2d 827, 830 (Tex.App. Texarkana 1986, pet. ref d). 13 Compare McCafferty v. State, 748 S.W.2d 489, 491 (Tex. App. Houston [1st Dist.] 1988, no pet.) with Stoutner v. State, 36 S.W.3d 716, 722 (Tex. App. Houston [1st Dist.] 2001, pet. ref d). 14 Verbois v. State, 909 S.W.2d 140, 142 (Tex. App. Houston [14th Dist.] 1995, no pet.). 15 Doyle v. State, 24 S.W.3d 598, 601 (Tex. App. Corpus Christi 2000, pet. ref d.)( We do not see any unfair prejudice that outweighs this clear probative value. ). 16 Price v. State, 59 S.W.3d 297, 300 (Tex. App. Fort Worth 2001, pet. ref d). 17 Torres v. State, 109 S.W.3d 602, 606 (Tex. App. Fort Worth 2003, no pet.). 18 See State v. Mechler, 123 S.W.3d 449, 457 (Tex. App. Houston [14th Dist.] 2003, pet. granted)(oneand-a-half-hours); Garcia v. State, 112 S.W.3d 839, 850 (Tex. App. Houston [14th Dist.] 2003, no pet.)(two hours). 19 Douthitt, 127 S.W.3d at 336. 20 See Mata v. State, 13 S.W.3d 1, 2 (Tex. App. San Antonio 1999), rev d, 46 S.W.3d 902, 910 (Tex. Crim. App. 2001); Hartman v. State, 2 S.W.3d 490, 493-94 (Tex. App. San Antonio 1999, pet. ref d). 21 See Mata, 13 S.W.3d at 2; Hartman, 2 S.W.3d at 493-94. 22 Bagheri v. State, 87 S.W.3d 657, 660-61 (Tex.App. San Antonio 2002), aff d, 119 S.W.3d 755 (Tex. Crim. App. 2003). 23 See Bagheri v. State, 119 S.W.3d 755, 764 (Tex. Crim. App. 2003). 24 Bagheri, 119 S.W.3d at 763; See also Daricek, 875 S.W.2d at 773. 25 Bagheri, 119 S.W.3d at 760. 26 Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004)(.160 and.154 on a.10 scale) 27 Manning v. State, 114 S.W.3d 922, 923 (Tex. Crim. App. 2003). 28 Manning v. State, 84 S.W.3d 15, 23-24 (Tex. App. Texarkana 2002), rev d, 114 S.W.3d 922 (Tex. Crim. App. 2003). 29 Manning, 114 S.W.3d at 927. 30 This is taken directly from a column written by Mary Schmich for the Chicago Tribune on June 1, 1997. It was later turned into a song by Baz Luhrmann, the guy who brought you movies such as Strictly Ballroom, Romeo and Juliet, and Moulin Rouge. 31 That is if she s not still trying to recuperate from her small role in 1988 s Rent-A-Cop opposite Burt Reynolds and Liza Minnelli. But hey, aren t we all? Two new books sent free to prosecutors offices Courtesy of our grant from the Court of Criminal Appeals, we sent copies of Future Danger? and The Perfect Plea (both newly updated) to all Texas prosecutors offices earlier this fall. Both books are also available for sale to nonprosecutors and nonprosecutor office personnel; just visit our web site, www.tdcaa.com, or fill out the order form on page 2 of this newsletter and fax it to 512/478-4112. PAGE 49

THE TEXAS PROSECUTOR Geographic jurisdiction of officers in Texas Guidelines for how far outside their jurisdictions Texas officers can make warrantless arrests CRIMINAL LAW By Diane Burch Beckham TDCAA Senior Staff Counsel Excerpted from TDCAA s new book, Traffic Stops, 2004. How far outside their jurisdiction, if at all, may officers go in making warrantless arrests? The Court of Criminal Appeals has had several cases pending on this issue in the 17 years it has been in question, but so far the court has given only partial answers. One more pending case could decide the issue for Texas officers, but in the meantime, what should officers do? In general, officers authority to make warrantless arrests is limited to their geographic jurisdiction under common law and Code of Criminal Procedure Chapter 14. 1 Not all officers have statewide authority to make warrantless arrests for any offense committed in their presence. 2 Most significantly, the warrantless arrest exception for offenses committed in an officer s presence or view does not extend to traffic offenses. So to justify a warrantless arrest that began with a traffic stop, an officer must either be acting in his jurisdiction or be familiar with one of the justifications for making that stop and arrest outside his jurisdiction. Municipal officers Courts of appeals are divided on whether municipal officers are limited to making warrantless arrests inside city limits or anywhere in their county. 3 The Court of Criminal Appeals has passed on the chance to address the geographic jurisdiction squarely twice since 2003, but it has ruled that at least two elements allow city officers to make arrests outside city limits: 4 1. hot pursuit; 5 or 2. participation in the arrest by an officer who has geographic jurisdiction. 6 Participation doesn t mean the officer with geographic jurisdiction has to physically make the arrest. In Armendariz, for instance, a deputy sheriff acting undercover radioed two city police officers to make the actual traffic stop that led to the defendant s arrest on drug charges. The city officers followed the defendant s car and later pulled him over after he committed a traffic offense 7 outside city limits but within the county limits where the deputy sheriff had geographic jurisdiction. The city officers were already searching the defendant s car (with his consent) when the deputy sheriff arrived on the scene a few minutes later. 8 The deputy sheriff s action in radioing the city officers for their help pulling the defendant s car over qualified as participation in the warrantless arrest. Hot pursuit and another officer s participation are the only two exceptions that the Court of Criminal Appeals has specifically adopted. When the court addresses the geographic jurisdiction question directly in the future, it may well find that municipal officers can act legally inside county limits. 9 But until it does, municipal officers are better served by making sure actions outside their city limits fall into one of the two exceptions. The genesis of the question The question that remains unanswered by the Court of Criminal Appeals arises from interpreting the Local Government Code and cases that distinguish between powers, rights, and jurisdiction of Type A municipality officers and Types B and C municipality officers. Traditionally, a municipal police officer could function as a peace officer anywhere within the state. 10 That statewide jurisdiction was cut back to the county in which the officer s city is located in Angel v. State. 11 The Court of Criminal Appeals reaf- PAGE 50

NOVEMBER/DECEMBER 2004 firmed Angel in Perkins v. State, 12 and some courts of appeals have relied upon it to hold that municipal police officers have county-wide jurisdiction. 13 But Angel has been questioned because the statute it construed was later amended. 14 Some courts of appeals and have limited it to officers employed by a Type A municipality. 15 Local Government Code 341.001 says that police officers of Type A municipalities have (1) the powers, rights, and jurisdiction of a marshal of a Type A general-law municipality; and (2) other powers and duties prescribed by the governing body. Section 341.021 goes on to say that the marshal has the same power and jurisdiction as the county sheriff to execute warrants, to prevent and suppress crime, and to arrest offenders. Type C officers, by comparison, are limited to duties as defined by their governing body. 16 [I]t appears that the legislature intentionally distinguished between the powers, rights, and jurisdiction bestowed upon officers of a type A municipality from those bestowed upon type C municipalities. Moreover, it is axiomatic that the governing body of a type C municipality has no authority to grant jurisdiction to its officers beyond their own jurisdictional boundaries. 17 There are no statutes specifically controlling the jurisdiction of an officer of a Type B municipality. 18 If a municipal officer acts outside of her jurisdiction, to find the warrantless arrest legal, the court must find: 1. the legislature has extended the officer s geographic authority by statute (e.g., a statutory exception to the warrant requirement, such as an offense committed within the officer s view, but this exception does not include traffic offenses); 19 2. there is a common-law basis for such an extension (such as hot pursuit); 20 or 3. the city officer is acting along with an officer who has jurisdiction in the county. 21 Because the exception for warrantless arrests committed in an officer s view does not extend to traffic offenses, the safest approach is to consider that only officers with specific statewide jurisdiction (e.g., Texas Rangers or DPS officers) have authority to arrest for a state law traffic offense outside the officer s jurisdiction. Editor s note: TDCAA s new book, Traffic Stops, covers the law related to pulling over cars, detaining and arresting drivers and passengers, and searching vehicles. This book is available for $20 at www.tdcaa.com or by calling 512/474-2436. Endnotes 1 Tex. Code Crim. Proc. art. 14.03(d) & (g); Yeager v. State, 23 S.W.3d 566, 570 (Tex. App. Waco 2000), rev d, 104 S.W.3d 103 (Tex. Crim. App. 2003); McCain v. State, 995 S.W.2d 229, 234-35 (Tex. App. Houston [14th Dist.] 1999, pet. ref d, untimely filed); Dominguez v. State, 924 S.W.2d 950, 953-54 (Tex. App. El Paso 1996, no pet.); see also G.S. Reamey and J.D. Harkins, Warrantless Arrest Jurisdiction in Texas: An Analysis and a Proposal, 19 St. Mary s L.J. 877 n. 120 (1988). 2 Angel v. State, 740 S.W.2d 727, 736 (Tex. Crim. App. 1987); Reichaert v. State, 830 S.W.2d 348, 350 (Tex. App. San Antonio 1992, pet. ref d); Tex. Code Crim. Proc. art. 2.13. 3 See Yeager, 23 S.W.3d at 570 (jurisdiction of Type B municipality officer controlled by common-law geographic limitations of city limits), rev d on other grounds, 104 S.W.3d 103 (Tex. Crim. App. 2003); Armendariz v. State, 63 S.W.3d 572, 576 (Tex. App. El Paso 2001) (city police officer s jurisdiction does not extend beyond city limits), rev d on other grounds, 123 S.W.3d 401 (Tex. Crim. App. 2003); see also Brother v. State, 85 S.W.3d 377, 385 n. 7 (Tex. App. Fort Worth 2002, pet. granted) (Class A officers have county-wide jurisdiction); Angel v. State, 740 S.W.2d 727 (Tex. Crim. App. 1987) (plurality opinion) (sheriffs have countywide jurisdiction but city officers only have citywide jurisdiction); Nite v. State, 882 S.W.2d 587, 592 (Tex. App. Houston [1st Dist.] 1994, no pet.). 4 On June 30, 2004, the Court of Criminal Appeals granted a petition for discretionary review in another case questioning geographic jurisdiction, Brother v. State, 85 S.W.3d 377 (Tex. App. Fort Worth 2002, pet. granted). See also State v. Kurtz, 111 S.W.3d 315, 320 (Tex. App. Dallas 2003, pet. granted). 5 Yeager v. State, 104 S.W.3d 103 (Tex. Crim. App. 2003). 6 Armendariz v. State, 123 S.W.3d 401 (Tex. Crim. App. 2003) (citing Astran v. State, 799 S.W.2d 761 (Tex. Crim. App. 1990)); Lewis v. State, 15 S.W.3d 250, 255 (Tex. App. Texarkana 2000, no pet.) (arrest made by officers of another county is lawful if an officer of the county in which the arrest was made was present). 7 Namely, passing on the shoulder. See Armendariz, 123 S.W.3d at 403. 8 Armendariz, 123 S.W.3d at 403. 9 See Armendariz, 123 S.W.3d at 405-06 (Womack, J. concurring) ( I wish to point out a more significant question on which we granted review, but which the Court s opinion does not reach: the authority of municipal police officers to arrest outside their cities ). 10 40 George E. Dix & Robert O. Dawson, Criminal Practice & Procedure 9.15 at 531 (Texas Practice 2001). 11 740 S.W.2d 727, 734 (Tex. Crim. App. 1987) (interpreting former V.T.C.S. arts. 998 and 999, which dealt with a class of municipalities now known as Type A municipalities). 12 812 S.W2d 326, 327 (Tex. Crim. App. 1991). 13 See, e.g., Landrum v. State, 751 S.W.2d 531, 532 Continued on page 52 PAGE 51

THE TEXAS PROSECUTOR Continued from page 51 (Tex. App. Dallas 1988), pet. ref d, 795 S.W.2d 205 (Tex. Crim. App. 1990); Bacon v. State, 762 S.W.2d 653, 656 (Tex.App. Houston [14th Dist.] 1988, pet. ref d); Britt v. State, 768 S.W.2d 514, 516 (Tex. App. Fort Worth 1989, no pet.). 14 Gerron v. State, 57 S.W.3d 568, 570 (Tex. App. Waco 2001), vacated on other grounds, 97 S.W.3d 597 (Tex. Crim. App. 2003); Hoitt v. State, 28 S.W.3d 162, 165 (Tex. App. Texarkana 2000, pet. dism d); Preston v. State, 983 S.W.2d 24, 26 (Tex. App. Tyler 1998, no pet.); Brother v. State, 85 S.W.3d 377, 285 n. 7 (Tex. App. Fort Worth 2002, pet. granted); see also Armendariz, 123 S.W.3d at 406 (Womack, J. concurring) ( I do not believe that Angel can be relied on today to decide the question of the authority of police officers to arrest outside their cities today. For one thing, Judge Campbell s opinion on that question was not joined by any other member of that court. I think that Judge Campbell s opinion did not address the statutes correctly, and the amendment of the controlling statutes in 1995 has made its persuasive authority even less. ). 15 Reichaert v. State, 830 S.W.2d 348, 350-51 (Tex. App. San Antonio 1992, pet. ref d) (Angel does not apply to officers of Type C municipalities). See also Yeager v. State, 23 S.W.3d 566, 570 n. 3 (Tex. App. Waco 2000) (Angel does not apply to officers of Type B municipality), rev d, 104 S.W.3d 103 (Tex. Crim. App. 2003); see also Armendariz, 123 S.W.3d at 412-13 (Meyers, J. dissenting) (the Angel analysis applies at most only to officers of Type A municipalities and maybe no longer even to them). 16 Tex. Local Gov t Code 341.002. 17 Reichaert, 830 S.W.2d at 351. 18 See Yeager, 23 S.W.3d at 570; Armendariz, 123 S.W.3d at 407-10 (Womack, J., concurring). 19 Tex. Code Crim. Proc. art. 14.01(a); Reichaert, 830 S.W.2d at 351, distinguishing Romo v. State, 577 S.W.2d 251 (Tex. Crim. App. 1979) (DWI is breach of peace; running a red light and speeding are not). 20 Yeager, 104 S.W.3d 103; Armendariz, 123 S.W.3d 401; Landrum, 751 S.W.2d at 531; Angel, 740 S.W.2d at 732. 21 See, e.g., Preston v. State, 983 S.W.2d 24 (Tex. App. Tyler 1998, no pet.). VICTIM ASSISTANCE By Mindy Montford McCracken Assistant District Attorney in Travis County Communication with victims goes a long way In most offices, victim-witness coordinators communicate with victims. But prosecutors are important contacts for people going through the unfamiliar criminal justice system. Here is how to best communicate with them. Iheard it for the first time when I became an assistant district attorney, and it has stuck with me ever since. When asked one day outside of the office what I did for a living, I responded simply, I m an attorney. My coworker, who had been with the DA s office for many years, told me as we walked away, You are not an attorney or a lawyer. You are a prosecutor. That comment has stayed with me over the years, and it takes on more meaning the longer I practice. What an awesome responsibility we all have as members of a district attorney s office. We are all empowered with the incredible task of seeing that justice is done. Unfortunately, at times, the people we are trying to protect become cause numbers, and the justice we seek turns into a plea bargain. It s not something we initiate, but it is often the result of an overloaded criminal justice system. It is important, however, to pause during these hectic times and remember who it is we serve. It can be difficult to do this when the crime victim has a longer rap sheet than the defendant or when the victim does not share in your zealousness to prosecute the offender. But it always comes back to you, the notion that if every defendant deserves his day in court, then so does every victim. The forgotten victim Defense attorneys are masters at making juries forget that victims even exist. By the time closing argument rolls around, you would think that the jury trial has become an awards banquet for the defendant. And, if the victim is PAGE 52

NOVEMBER/DECEMBER 2004 addressed at all, he has somehow become the criminal on trial. That is why we must not forget why we chose to be prosecutors. To the crime victim, we are most likely the first and only contact he has with the criminal justice system. In some regards, we become the most important person in a victim s life. Depending upon the severity of the crime, time stops for most victims and their families, and the clock does not start again until they receive some level of closure. Closure may come with a guilty verdict or plea, with allocution, or simply by seeing the perpetrator in court. Whatever the means, the victim will likely turn to you, the prosecutor, to walk him or her through the lengthy and confusing criminal justice system. Every victim is unique. What may work for one victim will certainly fail for another. The one thing most victims have in common, however, is their need for communication. I have found that victims will forgive almost anything as long as they have been prepared for the outcome. If you prepare them early on in the process for a number of factors that may occur with the case, they are usually grateful no matter what may happen in court. Notice my use of the word usually after all, there are those cases into which you can pour every bit of yourself and not receive so much as a smile for your hard work. We just chalk those cases up to community service or pro bono work. But most of the time, good communication with victims translates into their best experience with the system. To accomplish this feat, it helps to break the process down into five basic steps: initiation, explanation, preparation, implementation, and conclusion. Initiation This step involves the initial contact with a crime victim or the victim s family. Many offices, including Travis County, have a victim-witness division with counselors and other personnel trained to relate to crime victims and their families to open the lines of communication. A member of the division usually notifies the victim by mail that the office has received the case and provides contact information about the office. A follow-up call inquires about the victim s condition, determines the level of involvement he or she wants to have with the case, confirms an address and phone number for future contact, and relays the first court date if it s set. Victims are often given a victim impact statement to complete at this point, which gives a more detailed summary about their physical and emotional status immediately following the crime. I have found this form to be very helpful later in preparing victims for the stand. Many times, victims indicated on the forms that they had suffered nightmares, fears of being alone, depression, and anxiety, but by the time the trial rolled around, they had forgotten many of these emotions. I would never have thought about addressing these issues had I not seen their responses on the forms. The contact person in the office should also explain to the victim that the process will take several months from beginning to end and that while it is unnecessary to personally attend each court setting, the victim may call the office about the case s status after each setting. Give the victim a contact name and number of someone who can provide information about the case. Offices that do not have a victim-witness division can establish contact with the victim by having a prosecutor or other staff member make the initial call. The key part of this process is to make the victim feel that the case has not slipped through the bureaucratic cracks. I suggest, however, making the contact person someone other than the prosecutor if possible. When I used to make myself the contact person, I found that I spent every minute outside of the courtroom returning phone calls and had very little time to actually prepare my cases for court. It is more efficient and helpful to victims to have someone with a more flexible schedule available to answer their questions. Explanation Ideally, the prosecutor and victim counselor should meet face-to-face with the victim and/or the victim s family. I like to have these meetings at the DA s office in a conference room (as far away from the office s daily commotion as possible). I myself am guilty of joking with colleagues about the events of the day, including what a particular defense attorney might have done in court that morning. And, I must confess, I have used a few choice words in my descriptions of those events. So I understand the need to meet with a victim for the first time in an appropriate and professional setting. While it is often difficult Continued on page 54 PAGE 53

THE TEXAS PROSECUTOR Continued from page 53 for the prosecutor to find time in between dockets and trials to personally meet with victims, it is extremely beneficial to all parties involved if such a meeting can occur. Keep the meeting small: Too many people can make the victim feel uncomfortable to talk openly, but there should always be at least two people from the DA s office in case one person needs to testify about the meeting later in court. Of course, if the case involves a property or other non-violent crime, a phone call may suffice. Explanation involves letting the victim know what she can expect from the justice process. If there are problems with proving the case or unreasonable punishment expectations, this meeting is the time to address them. A victim should never be promised a certain outcome even in the strongest of cases. We are all too familiar with the numerous ways a slam dunk can quickly turn into an acquittal. The victim should be asked for input on a proper resolution; the prosecutor should explain that the defendant s punishment is ultimately up to the judge or the jury but that a victim s feelings are strongly taken into account. The prosecutor should use this meeting as a way to obtain further information about the case. As we all know, there is always more to the situation than what the offense report says. And, most importantly, be prepared. Take the time to read the probable cause affidavit before the meeting, or you might as well not have the meeting at all. PAGE 54 Preparation Preparing for the case disposition is crucial. This step may involve another faceto-face meeting or follow-up phone conversations. The prosecutor or other contact person must prepare the victim for court. Preparation can include showing her the courtroom ahead of time, describing courtroom etiquette and appropriate attire, informing the victim of possible defense tactics, and explaining courtroom procedure. If the victim is a child, many offices arrange for him to attend a type of court school that teaches many of the things listed above in an age-appropriate way. If a plea agreement has been reached in the case, inform the victim of the terms before the plea setting. Also tell the victim of her right to allocute following sentencing. If she wishes to invoke this right, she should write the statement down to avoid distraction by the defendant s presence and the unexpected surge of emotion that often accompanies the case s conclusion. If the victim feels that she cannot personally address the defendant, the prepared statement may be read by a family representative. If you have the opportunity to review the victim s statement before it is read in open court, by all means take it! I learned this lesson the hard way when I hurriedly put a 14-year old girl on the stand to read her allocution statement. She repeatedly called the defendant ugly, fat, and stupid for what seemed like the longest 10 minutes of my life. Implementation This is the big day for the victim. This part of the process may be a guilty plea, a trial before the court, or a jury trial. If possible, an office representative should attend the hearing with the victim to answer any questions or provide comfort during a possibly stressful time. The prosecutor will usually be focused on the proceeding, especially if it is a contested hearing, but if the opportunity arises, he should make an effort to greet the victim Depending upon the severity of the crime, time stops for most victims and their families, and the clock does not start again until they receive some level of closure. and update her at some point. It is important to remember as prosecutors that the victims are often observing everything we do or say even when court is not in session. Be mindful that the victim or her family may be in the row behind your chair as you peruse the stack of crime scene and autopsy photos or as you comment on courtroom events. Prepare the victim and her family before any graphic photos are introduced into evidence so they may choose whether to remain in the courtroom. At the end of the proceeding, make yourself available to the victim and the family members for questions and comments. Even with careful preparation for the outcome, the victim usually experiences a variety of unexpected emotions, which usually raises new questions about the case. I try to make a point at the end of court to approach victims and make sure they understand what occurred at the hearing. There is nothing more frustrating to a crime victim then being left alone on the front row to figure out what has just happened as the prosecutor exits through the back door.

Conclusion This is the final step in the communication process. It is incorrect to assume that once the guilty plea is entered or the verdict is read, the communication process ends. In many ways, this step is the most important to the victim. She needs to feel that as the days go by and the outcome sinks in, she may contact the DA s office at any time for further inquiries. Explain the appellate process and the possibility of future parole hearings, as well as the various victim assistance programs, such as victim notification lists that provide information about a defendant s release from incarceration, crime victim s compensation available through the Attorney General s Office, and crime victim support groups and counseling services. If the defendant received community supervision, the probation officer s name and number is welcome information for the victim who wants to remain informed. Finally, do not be afraid to make future contact with a victim you think about from time to time. I have, on occasion, called victims to whom I felt particularly close just to see how they were doing. They have all told me they were very appreciative of the call and hoped I would do so again. In fact, these calls more than make up for the few victims who never seem to care about what you did for them. Keeping victims well-informed can make all the difference in how they view the criminal justice system. It is a big responsibility to help a sexual assault victim get her dignity back, to bring justice to a father whose child was murdered, or to begin the healing process for a brother and sister who have just lost their parents to a drunk driver. That is why we call ourselves prosecutors. Key Personnel Seminar photos More than 240 people attended TDCAA s Key Personnel Seminar in San Antonio in late October. Here are a few memories of the week. See the back cover to find out who won this year s Oscar Sherrell Award. PAGE 55

THE TEXAS PROSECUTOR It s 1 p.m. on a Sunday afternoon in Pilot Point, Texas, a small community in Denton County with a population of 3,800. Suddenly, the loud roar of motorcycles catches the attention of residents dining after church in a restaurant on Highway 377. A long line of Harleys, Kawasakis, Hondas, and custom choppers makes its way through town with the riders dressed in bandanas, jeans, and leather jackets. On the back of the leather jackets is a big fist with the letters BACA across the knuckles. Some of the residents are startled as more than 20 bikers cruise through town. The Pilot Point Police Department receives a call at 1:05 p.m. from a resident s cell phone. In a mild panic, the caller says to the officer, There are bunch of bikers coming through town. I don t know if they re looking for trouble, but I thought you should know. VICTIM ASSISTANCE By Dan Leal Executive Director of the Children s Advocacy Center for Denton County and Karen Redd Rich Bikers Against Child Abuse member Texas bikers band together against child abuse Several Texas chapters of Bikers Against Child Abuse (BACA) help abused children face their abusers in court. The officer on the other end chuckles a bit and says to the lady, I bet I know who that is. Don t worry, ma am. They aren t here to cause trouble. Those are good folks here to help one of our kids. In 1995, J.P. Chief Lilly started Bikers Against Child Abuse (BACA) in Provo, Utah. This charitable organization s main goal is to empower abused children and tell them not to be afraid. Currently, BACA is active in 19 states and has over 4,000 members nationwide. These bikers work with prosecutors, Child Protective Services, Children s Advocacy Centers, and other organizations to protect abused children through the lengthy court process and painful aftermath. Dan Danno Hunt started a chapter in Fort Worth in 1999 when he and other members (mostly ex-law enforcement) recognized the great lack of help for the youngest victims of sexual abuse. In five years, that original Fort Worth chapter has grown from 12 riders into 13 chapters with a membership of about 500 riders in Texas. We are not a motorcycle gang. We are a non-profit charitable organization, says Fort Worth Chapter President Brian Brass Humble while surrounded by other leather-clad bikers at a local Grapevine hangout. Our goal is to protect and empower the children we sponsor. They need to know the abuse is not their fault and they did nothing wrong. BACA works in conjunction with Children s Advocacy Centers and other agencies to provide justice and healing for children. An abused child s family or guardian must contact BACA before the organization steps in to sponsor a child. We desire to send a clear message to all involved with the abused child: They are part of our organization, Humble explains. We are prepared to lend our physical and emotional support to them by affiliation and our physical presence. Once a child is adopted by BACA, members ride to the child s residence in a group. These rides may range from a few people to well over 50. The children are given a teddy bear bearing the BACA logo, a certificate of membership, and a group nickname. This nickname gives the children a sense of belonging and helps protect their privacy. The nickname also allows members to discuss the adopted child without infringing upon privacy or dis- PAGE 56

NOVEMBER/DECEMBER 2004 closing confidential information to others outside the group. Members of the group act as moral support and as a barrier between the victims and their abusers. Members accompany the children to and from the courthouse and are present during litigation. A goal is to build a wall, literally and figuratively, between the child and the offender. Fort Worth s chapter has an emergency phone system so members can contact each other when immediate action for a child is needed. A non-disclosed safe house is available if other means of separation from the abuser are needed. BACA has garnered praise from the victims families, advocacy center staff, and prosecutors. I have seen kids terrified to walk into court and unable to face their abuser and describe what happened, says Paige McCormick, a Denton County assistant criminal district attorney. I cannot begin to tell you how empowering BACA is to these kids. Having BACA in their corner does wonders for their courage and self-esteem. Mr. Humble, the Fort Worth chapter president, modestly says that he and others in his group are not role models but are simply filling a need, but many beg to differ with him. In a world where so many raise a hand against children, the members of Bikers Against Child Abuse raise theirs in protection. So, the next time you see a group of bikers riding around or relaxing at a local hangout, think about the child they may be helping start a new, safe life. State chapters are now active in Fort Worth, Dallas, Cross Timbers, Big At top, a BACA member accompanies a child into court.above, BACA members pose for a group photo earlier this summer. Country, Permian Basin, Monahans, Red River, Amarillo, Lubbock, Wichita Falls, San Antonio, Austin, and Houston. All members go through public and state background checks. BACA gratefully accepts donations and is always looking for new members. Information regarding this inspiring organization can be found at www.bacafortworth.org, www.bacausa.com, www.baca-tx.org. PAGE 57

THE TEXAS PROSECUTOR INVESTIGATOR SECTION By Betty Marshall State Prosecuting Attorney in Austin Pookie s in trouble A bad night got worse when Pookie ignored a warning that investigators monitored his jail phone calls. Pookie1 was having a bad night. First, he was in the back seat of a vehicle stopped by Georgetown police. Next, he was arrested and taken to jail for possessing an illegal knife. Then, at 2:30 in the morning, he called his cousin Candy on his cell s pay phone to ask her to retrieve his cell phone, house key, and stuff from a woman named Kristin. That s when Pookie s bad night got worse. A recorded message plays at the beginning of every call from the Williamson County jail: Hello, this is a collect call from. This call is subject to monitoring and recording. Thank you for using Evercom. Pookie ignored this warning, however, and told Candy all about Kristin and the stuff she was holding. And, 16 minutes later, Pookie ignored the recorded warning again when he called back and heard from Candy that she had found Kristin and now had the stuff at her house. All of which made for very interesting listening when Williamson County DA s investigator Carl Leihardt began his workday as he almost always does, reviewing recorded inmate conversations. I usually spend about an hourand-a-half to two hours every morning going over the calls, he says. I look at the jail screen for new felony arrestees and then look at all the calls from those cells. In Pookie s case, Carl heard the calls to Candy at 8:15 a.m., consulted with a prosecutor, and arranged for a search warrant that was executed by 11 a.m. The haul: 56 rocks of crack cocaine, a very surprised Candy, and new charges against Pookie. Not every phone call has such dramatic results, of course, and Carl doesn t listen to every call. If the call is to a lawyer s number or he can tell the arrestee is talking to a lawyer, he stops listening and does not save the call to disk. 2 But even a fairly routine call can have beneficial effects. I recently heard a defendant tell a relative that he was going to accept the offer of 15 years, he remembers. That will save the prosecutor a whole weekend of work getting ready for trial on Monday. Calls can even be monitored as they re made, and the system has what s called a covert alert. Carl explains, If we know a defendant is calling a certain number, the system can be programmed to immediately forward that call to the cell phone of the detective in the case. Calls can also be forwarded to a prosecutor s phone line inside the office. Carl learned about the system, Evercom s Call Applications Manager, or CAM, when a captain in the Williamson County jail called him with information after listening to an arrestee s recorded call. Most jails and prisons record inmates calls all perfectly legal 3 but it was Carl who arranged for remote access in the DA s office. Perhaps because of his background a B.S. in Criminal Justice from Texas A&M at Corpus Christi, six years with the Georgetown Police Department, and extensive training in narcotics investigation Carl is particularly interested in calls from arrestees in drug cases. Those calls, plus those made by arrestees in domestic assault cases, frequently result in new evidence or new charges. In one case, a man named Bubba 4 was arrested for aggravated assault with a deadly weapon after forcing his way into his ex-girlfriend s house with a machete and waving it around while threatening her. He managed to get away before the police arrived, and the machete was not recovered. Instead of PAGE 58

NOVEMBER/DECEMBER 2004 Williamson County DA s investigator Carl Liehardt is pictured in a jail cell, all of which have pay phones for arrestees use. All phone calls are recorded and monitored. just a he-said, she-said case, though, the prosecution had Bubba s call to the exgirlfriend where he ignored the warning about monitored calls and admitted to having a weapon: Bubba: They got me for bullshit charges. Girlfriend: What bullshit charges? Bubba: Aggravated assault. Girlfriend: What you call it then? Bubba: I didn t hit you I didn t awww Girlfriend: You had a weapon though. Bubba: It ain t no aggravated assault I didn t swing it at you. I didn t wave it at you. Girlfriend: You had it in your hand though. Still it s a weapon. Bubba is now in prison for 50 years. Sometimes calls can even solve a case. Carl listened to over 60 hours of calls made by three members of an Aryan Brotherhood group involved in a shooting. From the calls, he says, we were able to identify a fourth member of the group, another shooter. And it isn t just phone calls that can solve a case. Any time a detainee talks, investigators can listen in. 5 In a recent Kerr County case, for example, two young men, Michael Scheineman and Jose Trevino, 6 were arrested for attempted burglary and placed in separate rooms at the county law enforcement building. When Jose asked to speak to Michael alone, the deputy agreed and moved them into the same room. As Michael later stipulated, At that time we discussed the attempted burglary and that we had both taken part in using screwdrivers to try to break open the door of the house in order to go inside to steal property. Several minutes after we had begun our conversation, and discussed the above matters, we both became aware that someone was moving around behind a mirror located on a wall in the room. It was then that we were first made aware that our conversation was likely being monitored. On appeal, the Court of Criminal Appeals found that this was not a situation where a suspect was threatened, tricked, or cajoled into waiving his Fifth Amendment selfincrimination privilege or subjected to Recorded calls are routed to Leihardt s desk, where he listens to them every morning. custodial interrogation. 7 Instead, the videotaped conversation between Michael and Jose was admissible because [w]e do not believe that society is prepared to recognize a legitimate expectation of privacy in conversations between arrestees who are in custody in a county law enforcement building, even when only the arrestees are present and they subjectively believe that they are unobserved. 8 So recording jail phone calls is not the only way modern technology can aid law enforcement, but it is important because defendants just can t stop talking. But, then, we knew that. Endnotes 1 This really is his nickname. 2 [R]elationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection. Lanza v. New York, 370 U.S. 139, 144 (1962); and see United States v. Harrelson, 754 F.2d 1153, 1168-69 (5th Cir. 1985) (taped conversations not protected by marital privilege or attorney-client privilege); State v. Howard, 728 A.2d 1178, 1184 (Sup.Ct.Del. 1998) (taped conversation protected by marital privilege). 3 Calls that begin with a warning are legal, see United States v. Sababu, 891 F.2d 1308, 1329 (7th Cir. 1989); United States v. Workman, 80 F.3d 688, 693 (2d Cir.), cert. denied sub nom Rodgers v. United States, 519 U.S. 938 (1996), but those without a warning may violate the Texas Constitution. See Richardson v. State, 865 S.W.2d 944, 953 (Tex. Crim. App. 1993) (use of a pen register may well constitute a search under Article I, 9 of the Texas Constitution). 4 This is also a real nickname. 5 The test is whether (1) the defendant exhibited an actual subjective expectation of privacy, and (2) circumstances existed under which society is prepared to recognize this subjective expectation as objectively reasonable. Factors relevant to determining whether an expectation is reasonable Continued on page 60 PAGE 59

THE TEXAS PROSECUTOR Continued from page 59 include: (1) whether the accused has a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy. Villarreal v. State, 735 S.W.2d 134, 138 (Tex. Crim. App. 1996). Under this test, an accused has no reasonable expectation of privacy in the back seat of a patrol car, United States v. Clark, 22 F.3d 799, 801-02 (8th Cir. 1994); Meyer v. State, 78 S.W.3d 505, 508 (Tex. App. Austin 2002, pet. ref d), a jail or prison cell, Hudson v. Palmer, 468 U.S. 517, 526 (1984), or a jail visiting room, Lanza v. New York, 370 U.S. 139, 143-44 (1962); United States v. Hearst, 563 F.2d 1331, 1344 (9th Cir. 1977). The misdirected sentence A judge can impose all sorts of creative conditions to a defendant s punishment. Right? SENTENCING TIPS By John Bradley District Attorney in Georgetown 6 These are real names. 7 Deliberately fostering a defendant s expectation of privacy may be sufficient to render that expectation reasonable. See People v. A.W., 982 P.2d 842, 848 (Colo. 1999) (detective assured defendant he would not be listening ); State v. Munn, 56 S.W.3d 486, 496 (Tenn. 2001) (officer deceived and assured the defendant and his parents that they were free to talk in private). 8 Scheineman v. State, 77 S.W.3d 810, 813 (Tex. Crim. App. 2002). You have reached the final question in Who Wants To Be A Millionaire. For one million dollars: A judge may sentence a defendant to: A) enroll in drug treatment; B) actually serve 30 days of confinement; C) post a photograph of the victim in his cell; D) all of the above; or E) none of the above. Before answering, you recall that Texas has given judges broad discretion in imposing creative conditions of supervision. You remember reading about a man who had to sleep for 30 nights in a backyard doghouse. You recall a woman who had to walk around with a sign saying she was a thief. Heck, you even remember a defendant who couldn t use a computer, TV, or cell phone. So, surely the answer is D). Is that your final answer? Then you would be wrong. Mandatory treatment Kenneth Cranford was convicted of possessing less than one gram of cocaine and had two prior felony convictions. That got him a 10-year prison sentence. Not surprisingly, the judge thought Cranford also should get drug treatment so he ordered Cranford to enroll in a substance abuse felony punishment facility when he got to prison. On direct appeal, Cranford complained that no Texas law permitted such an order. The court of appeals agreed. 1 Day-for-day Lee Andrew Jones, Jr., was convicted of misdemeanor theft by check. That got him 180 days in county jail, probated for a year, and a $200 fine. Jones did not comply with a single condition of his supervision; he didn t visit his probation officer even once. So the prosecutor, a week before the probation ended, filed a motion to revoke. After hearing evi- PAGE 60

NOVEMBER/DECEMBER 2004 dence, the judge revoked the probation and sentenced Jones to 180 days in county jail. Perhaps because of Jones total failure to abide by the conditions, the judge expressly ordered him to serve the jail time on a day for day basis. By that, the judge meant that Jones would serve the sentence without any expectation of early release. On direct appeal Jones complained that the trial court had no authority to interfere with the sheriff s authority to decide what, if any, good time or work credit to award a defendant serving a county jail sentence. The court of appeals agreed. 2 Victim photo Matthew Tufule was convicted by a jury of injury to a child and sentenced to 18 years in prison. He had caused the death of his girlfriend s 2-year-old daughter by shaking her and fracturing the child s skull. No doubt to remind Tufule of his horrible crime, the judge also announced that Tufule would post two photographs of the child victim in his prison cell. One of the photos showed her when living before any injury. The other photo showed her dead in the emergency room. On direct appeal, Tufule complained that the judge had no authority to order him to post the photographs. The court of appeals agreed. 3 What gives? How is it that a judge could be wrong in every case, given the facts supporting what would appear to be reasonable orders? In all three cases, the judicial orders were part of a direct sentence. And therein lies the problem. Texas law gives judges little room to roam when it comes to a direct sentence. Depending on the category of offense, a judge may order a defendant to pay money, be confined, or some combination of the two. If the offense is a misdemeanor, the judge may substitute the fine or confinement with several alternatives, but that is about it for choices. Apparently, creativity ends with the direct sentence. If a judge, on the other hand, orders deferred adjudication or suspends a sentence after a conviction, she may impose all sorts of creative conditions as part of the supervision. And those conditions could order the defendant to serve every single day of 30 days in county jail, 4 post a photograph of the victim on the wall of the jail cell, 5 and enroll in inpatient drug treatment. 6 How is it that a judge could be wrong in every case, given the facts supporting what would appear to be reasonable orders? That s because probation is designed to provide judges with great discretion in crafting an order that fits a criminal case s particular facts. In addition, with probation, a judge has a means to enforce the order once it is entered. If the defendant fails to comply with the condition, the defendant can be arrested and brought before the judge for a hearing. After the hearing, the judge can revoke the probation and send the defendant to confinement. What enforcement exists for a creative condition attached to a direct sentence? Now, there is at least one thing, in addition to confinement and a fine, that a judge may order in connection with a direct sentence: suspension of a driver s license. That authority is derived from specific statutes that require the judge to enter the order but give some discretion in setting a period of suspension.vii However, even license suspension is not considered part of the sentence. It is merely a collateral event to the sentence. It does seem strange that thousands of years of evolution have left us with only two options in a criminal sentence: fine and confinement. Perhaps it would be worthwhile to explore sentences that incorporate more creative options. But that solution must be debated in the Texas legislature. So, if you go past probation and get to direct sentencing and your judge is feeling creative, you might want to quietly give the international signal for REVERSIBLE ERROR (two thumbs down). Otherwise, your appellate division will soon concede error and notify the judge of an opinion with her name soon to appear in a Southwest Reporter. (Because the million dollar answer is E.) Continued on page 62 PAGE 61

THE TEXAS PROSECUTOR Continued from page 61 Endnotes 1 Cranford v. State, 124 S.W.3d 811 (Tex. App. Dallas 2003, pet ref d). 2 Jones v. State, 2004 Tex. App. LEXIS 5021 (Tex. App. Houston [1st Dist.] 2004). 3 Tufele v. State, 130 S.W.3d 267 (Tex.App. Houston [14th Dist.] 2004, no pet); see also In re Cortez, 2004 Tex. App. LEXIS 6177 (Tex. App. San Antonio 2004). 4 Tex. Code Crim. Pro. art. 42.03 2; Sabala v. State, 107 S.W.3d 78 (Tex. App. San Antonio 2003, no pet.). 5 While there is no specific provision authorizing this condition, it would be consistent with the general authority of a judge to impose any reasonable condition designed to rehabilitate a defendant. Tex. Code Crim. Pro. art. 42.12 11(a); Ex parte Alakayi, 102 S.W.3d 426 (Tex. App. Houston [14th Dist.] 2003, pet. ref d). 6 Tex. Code Crim. Pro. art. 42.12 14(a). 7 See, e.g.,tex.trans. Code 521.344. CRIMINAL LAW By Cindy Dyer Assistant Criminal District Attorney in Dallas County Helpful Crawford predicate questions Here are general Crawford predicate questions to ask a police officer regarding a victim s excited utterances. At what time were you dispatched? How far away were you when you received the call? How long did it take you to get to the location? When you got to the location, what did you observe? Were you able to locate the victim of the offense? Did you have an opportunity to speak to her? How much time passed between the time you received the call and the time you spoke to the victim? Describe the victim s physical condition when you were speaking to her. Did she appear to you to be in pain? What did you observe that led you to believe she was in pain? (For example, bleeding, swelling, bruising, crying, rubbing arm, etc.) Did the injuries appear to be recent? (Was she still bleeding, etc.) Describe the victim s emotional condition when you were speaking to her. What did you observe that led you to believe she was upset or excited? (i.e., she was trembling, shaking, crying, looking over her shoulder, talking quickly, breathless, etc.) At this time and in this condition, did the victim make any statements to you about what had happened? Would you characterize these statements by the victim as a solemn declaration or affirmation? Were these statements formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions? Describe the circumstances under which she made these statements. (For example, she was standing in the yard or in her living room, in middle of the night, wearing her nightgown, the kids hanging on her legs, she was still bleeding and crying, etc.) Continued on back cover PAGE 62

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Continued from page 62 Were her statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial? Did you give her Miranda warnings? Were the statements sworn? Did you tell her they could or would be used at trial? Was the victim in police custody at the time she made the statements? Was the victim a potential suspect in the case? If the victim blurted out statements to the officer not in response to questions: Were the statements taken during the course of an interrogation? At this time, did the victim make any statements to you that were not in response to any questions? What did she tell you? If the victim made statements in response to the officer s questions: Were the victim s statements to you made in response to structured police questioning? Were the statements made in response to leading questions? Were the statements taken during the course of an interrogation? What was the purpose of your questions? Were your questions an interrogation or merely part of your initial investigation? Were these questions asked to determine whether a crime had even occurred? What did you ask her? What the victim say? Then what did you ask her? What did she say? Willie Mae Williams named Oscar Sherrell Award winner Willie Mae Williams, the victim-assistance coordinator and office manager for the County and District Attorney s Office in Colorado County, was named 2004 s Oscar Sherrell Award winner for the Key Personnel Section at the Key Personnel Seminar in October. Her boss, Ken Sparks, the County and District Attorney (pictured with the winner, right), praised Williams innovative ideas for educating local merchants about preventing and collecting on hot checks, as well as her tireless dedication: She often agreed to come in early and stay late to put on training for community businesses. Congratulations on a much-deserved award! Texas District & County Attorneys Association 1210 Nueces St. Austin, TX 78701 RETURN SERVICE REQUESTED PRSRT STD US POSTAGE PAID PERMIT NO. 2071 AUSTIN, TEXAS