Dallas Criminal Defense Lawyer Blog

"In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him"
6th Amendment- US Constitution

You know what I don't use. A web cam. I've never installed one at my office or home. My macbook has one built in but it's always off. I'm not sure I want the entire internet staring at me while I type in my pajamas.

This bring me to our case of the day. What happens when a State's witness doesn't want to appear in person?

Case- Acevedo vs. State-
Facts- Acevedo was found guilty of murder. One witness, his sister, lived in Chicago and testified via web cam.
Issue- Can a web cam satisfy the right of confrontation?

First what's the law on confrontation? From the opinion

The Sixth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment provides, in pertinent part, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400 (1965). This clause, known as the Confrontation Clause, “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 10161988). The right includes not only a “physical examination” but also (1) ensures a witness will testify under oath, “impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury;” (2) forces the witness to submit to cross-examination, “the 'greatest legal engine ever invented for the discovery of the truth;'” and (3) permits the trier of fact to observe the witness's demeanor when giving testimony, “thus aiding the jury in assessing his credibility.” Maryland v. Craig, 497 U.S. 836, 845-46 (1990). The combined effect of these elements serves the central concern of the Clause: “to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Id. at 845.

In court cross examination is a great tool for discovering the truth. I can see, hear, and even smell the witness against my client. I've only conducted pleas via close circuit camera (jail chain in Bowie County) but never cross examined a witness.

Even in something simple as a plea there is no rhythm to the conversation. The cadence of dialogue is gone, broken up by "What did you say?" and "Can you repeat that?"

It doesn't sound like much but it's one of the ways I get to my client's version of the truth. I'm not sure I could get the same results with Skype. With a client hundreds of miles away from the jury and me I would be at a disadvantage. What comes to mind first is exhibits. What if I wanted to ask the witness to read something? Or demonstrate something?

What about demeanor? You can't tell much about a witness from a grainy head shot. For example, many cops testify with their notes in their lap. Something you couldn't see via web cam. Finally, with me on a TV set they can control my volume and presence to the witness. Crescendo has less impact when the witness is starting at me through a netbook.

What did the court decide in this case? I will give the court credit for using very serious language in the opinion. They do not want to open the door to web cam testimony, but they do anyway.

In Texas, there are very few cases on allowing someone to testify remotely. They have been used, sparingly, for the terminally ill etc. In this case, the witness had a high risk pregnancy, which the court decides is the same degree of incapacity.

Question I have- I'm no doctor, but from what I've gathered about human pregnancy vs. terminal illness is that pregnancy usually ends within 40 weeks with the mother alive. Ergo, wouldn't the witness have been available later?

We conclude the trial court did not err in finding Garcia's medical condition constituted an exceptional circumstance that warranted permitting her testimony by remote two-way video conferencing or in determining the system used by the State did not deprive appellant of his Sixth Amendment rights. We overrule the third issue.

Wow. It only took nine months but Barack Obama actually moved to limit federal power and increase State's rights. When Texas finally passes our MM laws (I'm guessing around 2109 after the other 49 states legalize), then our fellow Texans MM patients will not have to live in fear of federal, or state prosecution.

The most bizarre response to this common sense move is from Bryan Fischer at GOP.com.. Mr. Fischer argues that it's unconstitutional for the President NOT to order prosecution MM patients who comply with State law?

Frankly, it is unacceptable for a president to pick and choose which laws he wants to enforce, and which ones he doesn't want to enforce. He has only a handful of Constitutional responsibilities, and among them is the responsibility to "take care that the Laws be faithfully executed." His piece is so spun that he cites the commerce clause as the legitimate basis for federal prohibition. When did the right embrace the commerce clause as legitimate source of endless federal power?

Unfortunately, he doesn't seem to care about his Constitutional responsibilities..

Really? This only makes sense if you know nothing about a) prosecutions (which are completely discretionary and b) the Constitution. Bryan, it's completely acceptable for a President, or DA to decide what laws to enforce. Part of executive authority is deciding how to use limited resources.

The Constituion doesn't require that all laws before enforced at all times. In fact, some scholars even think the Constitution actually limits the power of the federal government. It's been a while, but I remember reading something about that in the 9th or 10th amendments.

Remember the right to counsel? In simpler times if you were in custody and asked for an attorney, the police had to wait for counsel to arrive before beggining their good cop/bad cop routine. Such antiquated rights like the 6th Amendment and Article 1 Section of the Texas Constitution are are being replaced with exciting new rights; like the right to be executed for an arson you didn't commit based on junk science.

Today's Court of Criminal Appeals Case of the day is.... Hughen v. State-

Facts- Hughen was arrested and charged with agg assault and attempted murder. Hughen was taken before a magistrate. During this time Hughen asked for a lawyer.

Undettered the police took Hughen to the interrogation chamber and had him sign a Miranda waiver. Hughen looked over the waiver form and, just before he signed the form, he asked. "This ain't waiving my right for an attorney, is it?"

The cop replied, "No, sir. This is just talking with us about what happened and what was going on and all that good stuff." Hughen then signed the waiver form.

Our CCA found that Hughen had waived the attorney he requested, and never received, in part based on the following exchange.

After Herrington explained to Hughen these rights, she asked him the following three questions and received his responses: (1) "Do you understand your rights, Jeff?" Hughen nodded in the affirmative. (2) "And understanding these rights, do you need to have a lawyer present before any questioning?" He answered, "I guess not right now, no." (3) "Having these rights in mind, will you talk to me now?" Hughen answered, "Okay."

"I guess not right now, no" would be an answer that a person without their lawyer would give. One of the things your defense lawyer will do is explain carefully why you should NOT talk to the cops. If you are in court you can't waive rights without your attorney present. Shouldn't the same protections apply to those in jail? But I digress.

The police proceed to get a confession. Hugen proceeds to get life and 20 years on the charges.

Wait a minute- Hughen sounds like he was guilty of some pretty bad stuff. Why should I care?

Good question. Upholding the rights of people like Hughen protects all of us. One of the reasons Texas routinely convicts the innocent is because we ignore basic Constitutional protections like the right to counsel. You would be shocked at how many people will confess under modern interrogations methods, even to crimes they did not commitT.

Worse, the police are allowed to lie and make up evidence that doesn't exist, to get your "confession." If a lawyer is present these games don't work. That is why the police and prosecutors are fighting so hard to destroy your right to have an attorney present during questioning.

With this ruling I'm going to have to move my office into the jail to keep the cops from making a run at my client every chance they get. Thanks CCA.

On a side note- Hughen did get that court appointed lawyer he asked for, a week later.

There may be one context in which the right to counsel still applies, custodial interrogations. From the opinion-

After Montejo, the Sixth Amendment does not bar police-initiated interrogation of an accused who has previously asserted his right to counsel. On the other hand, the Fifth Amendment does bar police-initiated interrogation of an accused who, in the context of custodial interrogation, has previously asserted his right to counsel during such interrogation, unless the accused's counsel is actually present. Minnick v. Mississippi, 498 U.S. 146, 1531990); Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)

Remember kids, ask for a lawyer, then ask for a lawyer, then ask for a lawyer.

I got an email this week that caught my attention. Steve Fischer is seeking 5000 signatures to be placed on the ballot for Texas Bar President. Bar elections are something I usually ignore. I check the candidates at the last minute, see if I know anyone, or if someone is local, and as a final tie breaker if someone went to Texas Tech law school.

In my experience most candidates are UT/SMU Big Law types. Steve's email indicated that he wanted to be the voice of the small firm/solo practicioner. Steve kindly agreed to an interview on issues I find important. Steve has earned my signature and I hope you will support his efforts.

If you want to support Steven and/or sign the petition (you have to a licensed Texas attorney) email Steve at Fish2026(AT)aol(DOT)com

Here is a Q&A with 2010 Texas Bar Presidential hopeful- Steve Fischer.

1. Background/resume

Licensed in 1983, practiced in El Paso, Odessa, Denton, Huntsville, and Rockport. President of Aransas Area Bar Assn. 2006-current. Former Willacy County & District Attorney. Served on three state bar committees, published four Texas Bar Journal Articles (three on Attorney Demographics).
HAve graduate degrees in law, public administration, and criminal justice, and taught at three Texas colleges.

2. Why do you want to be bar president?

A. My son Huey (who won the 1st Texas Bar Video Journalism Award) had been planning on a career in law but commented "No one likes attorneys" on several occasions and now has shifted his focus. He would have made a great and ethical attorney. This public perception hurts and offends me personally (see policy changes).
B. I also want to see small and solo firms, represented as well as criminal and family attorneys. Together these are among the largest portions of the bar, yet we are ignored at the leadership level.
C. I enjoy talking to people and groups and frankly I've experienced some "burnout" in my practice. This would be new and refreshing.

3. Any specific policy changes? What is your platform?

A. Have the Bar actively counter the sleazy ads most of which are out-of-state and basically say "Have you or a loved one been stricken with [insert debilitating disease)? Call X attorney" A counter ad campaign will at least show most attorneys do not approve of this.

B. Elevate the position and status of small firms and family and criminal practitioners. An example would be having the bar give regional awards such as "court-appointed attorney of the year" as court-appointed counsel work under the worst conditions for the lowest pay.

4. How can the bar better serve solo/small firms?

In a way that's putting the cart before the horse, once we have some leadership positions and focus on our type of practice, we can study this. For one though, judges need to understand that we can't be everywhere at once and at their beck and call, and there ought to be specific rules and rights for court scheduling published and adhered to statewide.

5. UNT law is scheduled to open in Dallas. Can the market support another graduating class of attorneys?

I've authored 3 Texas Bar Journal Articles on Texas Attorney Demographics and could give a complex and detailed answer. Let me say this, there are big cities in Texas with an overflow of attorneys, and small areas in need of more practitioners. There ought to be education as to what the overall employment situation might be in the future. Are prospective attorneys interested and knowledgeable in alternative areas if law practice or are they all planning to sign up for criminal appointments in our metro areas? There is a much greater need in Texas for good math/science teachers as well as nurses, than there is for attorneys. I am somewhat biased though as I received an MPA from UNT and believe they would do a fine job hosting any school.

6. How do you asses the current state of criminal justice in Texas?

We are about the same as most other states. Although I have defended more years than I have prosecuted, I am personally of the opinion that few of my clients (and there was a period when I was trying (defending) two murder trials a month) are ever really remorseful. I am in favor of the death penalty, although I would change both its procedure and administration.

7. Finally, I'm a member of the NORML legal committee. Do you support legalizing the responsible adult use of marijuana?

I favor a system like Denver has enacted where prosecution of small amounts of marijuana is the absolute lowest enforcement priority. Our economic and criminal justice resources are much better spent pursuing other crimes. I've written editorials on this too.