4 :: Upcoming CLE Event Schedule

6 :: A Word from our President

by ../oNwIe MlIsic*

8 :: Winning Warriors
12 :: HCCLA News Round Up
HeCLA Supports T-Times & Welcome New Members

13 :: Second Chair Program:

Being a Smart Second Chair Protege
by S8F&II V. WOOd

14 :: Defense Initiated Victim Outreach:

Dive Comes to Texas
by Marilyn Peterson Armour
and Stephanie Frogge

16 :: Attorney Strategy:
Don't Mess with Texas
by Joseph W. Vafll1a

21 :: OWl Blood Defense:

Part III, Preparation & Trial
by Kelly W. CaSll

26 :: Holiday Party '09

28 :: IT Corner:
Computer System Networking & Management
by Lester LBIIin 800 Marie Hvizdos

31 :: Investigative Corner:
A Recap
by Jim Wiflis

........ 0
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 a word from our

Presioent
Ja.Anrw
?r!uJich

We were all sitting around the counhouse. [\ was Monday

morning. Trial morning..

The clouds fill the sky. Dockets arc overcrowded, just like
the jaiL PR bonds are seldom granted yet courtesy pre-llial
supervision is ordered just in case someone should make bond.
Defendants injail an: meeting their appointed lawyer for the fil1;\
time while the prosecutor begins negotiating for a guilty pica.
Investigations are foregone. Multiple defendants line up in front
of the bench 10 accept pleas of time served or maybe probation
just to gcl back 10 work and family, Rarely is a dcfcndant in
front oflhc judge for more than 5 minutes. Potential jurors are
shuffled into the courtroom. Remarkably, counsel has no idea
which case the jury will hear when as many as ten to twenty
cases have been called for trial. Eventually, ajury is selccted and
trial begins. And, it's only 10:30!

Ok, so the clouds look pretty thick. Where's the chance for
justice, you ask?

Justice falls from the sky when the indigent person is pennitted
release on a personal recognizance bond so that he may not
only work with counsel to investigate and counter the claims of
government but also get back to work supporting his family and
keeping the first goodjob to come along in a long time. Justice
pours like rain when defendants arc afforded the opportunity to
review the government's evidence and research defenses, which
usually takes more than the couple hOUTS allotted to docket call
and ofien longer than the two weeks between court settings.
Justice splashes about the ground when the defendant receives
a fair trial. Justice floods the courthouse when judges remain
impartial and squarely follow the law they have sworn to uphold
regardless of how that affects the evidence. Andjustice washes
over all when individual freedoms are regarded and protected
according to the Constitution.

Are you ready for justice? HCCLA is.

0THfDlftfIDER
Over the past sevenl months, and years. HCCLA has stood ready
to help. We've brought ideas to those in a position to change.
We've offered solutions. We've suggested reform. They have
ignol'lld our requests. The coonI)' has formed a new criminal
justice couocil. The boards of judges have met regularly in
private. Both the council and the judges invite participation
from the prosecutor's office, yet they display linle regard for the
defense perspective. Decis)oos are made daily impactingjuslice
and the defcose baT, but we find out about them after the fact.
Take the most recent example: the Judges of the District Courts
Trying Criminal Cases in Banis Counl)' met and established new
guidelines for the payment of e~penses in indigent cases. The
guidelines, as applied, would divest counsel previously appointed
of fees already earned and would modify the definition of court
appearance so as to eliminate any fann of payment for certain
appearances. Whether intended or unintended consequences, in
the name ofsaving money. the judges voted to disregard the letter
and spirit of the Fair Defense Act as well as the Constitution.
Seeking justice (and reasonable attorney fees) for our
membership and the clients they represent, HeCLA immediately
began addressing the "new guidelines" and e~posing the
unconstitutional taking of fees that would occur. Administrative
Judge Mike Anderson indicates in hind-sight that the judges
should meet with representatives of the defense bar to discuss the
budgetary problems and possible solutions. (As of the time of
this writing, these meetings have not occUJTed, but I am hopeful
that Judge Anderson will carry through.) The point being, they
tried to decide alone, behind closed doors, and look at the result.
It's time for the judges to stop denying input from the defense
"".
When the law clearly states that counsel must be paid reasonable
attomcy fees for all services performed on behalf of iDdigent
clients, why does the attorney's expense voucher get cut? I
certainly understand presumIXive muimurns, but they arc: just
that - presumptions. Presumptions can be ovcn:ome. When
a case is reset multiple times because the offense: report isn't
available, it hasn't been prcsc1lted to grandjury, the state basn't
made any OffCTS because the victim hasn't been contaelcd for
the RIP call, and a host of other reasons beyond the control of
the defendant and his counsel, the defense auomey is placed in
a position of having reached the presumptive mu:imum long
before the case is concluded. Requests for additional payment
will likely be arbitrarily reduced. For example, one auorney
repolU submiuing a voucher for II court appearances and yet
receiving payment for only 7.
That judge had apparently authorized expenses greater than the
presumptive max but had actually denied reasonable fees. Was
there some reason to believe counsel had nOl made each and
every one of the 11 appearances? If so, remove that attorney
from the appointment list as provided by the guidelines (see sec.
11.10). It is not the fault of the attorneys accepting appointments
that the judges choose to implement a nat fcc per appearance
sehedule rather than an hourly rate for work acrually done;
attorneys should not be penalized court appeanmce pay when the
appeanmccs are required.
Why do judges continue to deny PR bonds? Why do we continue
to incarcerate probations just because they are on a waiting list for
rehabilitative programs? Why do some prosecutors still bclieve
it's ok to talk to the judge without defense counsel prescnt, and
just as important, why docs the judge allow it?
[t is time for all prongs of the criminal justice system (judges,
prosecutors, and defense anorneys) to come togelher, respect
one another, and work together to better the system. It is time
for our judges to come out of the secret closed door meetings
and invite discussion with more than just the prosecutor. It is
lime for justice.
Yes, it's cloudy, but I believe there is a cluma for justice!
""""""'0
 Why does DAVLD CUNNINGHAM go touial in federal
court? Because - as Willie Sutton might say - that's where
the acquittals arc in bank robbery cases. David's client
was charged with three counts of aiding and abetting her
bank-robbing boyfriend A focus on misidentification,
alibi and character evidence - as well as an enlertaining
cross-examination of the robber boyfriend - paved the way
for David's win before a jury in the court ofV.S. District
Judge GT1ly Miller.
lbc chargc was murder most foul, but ALLEN ISBELL
won a "not guilty" from a jury in the l84th Disttict Coun.
And, then, in the 4101h Disttici Court in MOnlgomery
Counly, Allen and RICK BRASS pleaded self defense and
secured an acquittal in a murder case following a six-day
trial and three hours ofjury delibeT1llions.
Demonstrating that thc most efficicnt way to win a
death penally case is to make the charge go away before
indictmenl, ROL.AND MOORE m convinced the Harris
Counly Districi Attorney's office to drop the capital
murder charge against his client. The dismissal came just
as the case was up for grand jury presentment and after the
Statc met the defcndant's "very believable alibi witnesses"
in the grand jury waiting room. The eyewitness's shaky
lestimony also was a factor. Roland's work and that of
private investigator Mollie Steinle ensured that the client
went free after two-and-a-half months in jail.
After a Iwo·and·a·half.year fight, BRIAN WICE gOI
Montgomery County Districi Judge Mikc Mayes to issuc
a 29-page order recommending a new trial in a 1999
non-death capital murder case after the medical examiner
changed her opinion and found Ihe cause of death of the
17-month-old decedent 10 be undetennined. And, after
this viclory hit the media, Texas Monthly's February
issue hil the stands with a long article delailing Brian's
relentless efforts to win a new trial for battered woman
Susan Wright.
0"'......
PAT McCANN won a judgment of acquittal from federal
District Judge Sim Lake in a felon-in-possession case
where the client was charged with an Anned Career
Criminal Act enhancement, making the penalty range IS
to life. Notably, Judge Lake granted Pat's Rule 29 motion
after a trial in whieh the jury deadlocked, was Allen
charged twice and still said they could not reaeh a verdict.
After Judge L.ak.e granled the acquittal, Pat's c1ient-
described by one onlooker as a lough guy - hugged him
and thanked him.
Giving the client a oo.over in an aggravated assault case
tbat originally yielded a 3().year sentence, CYNTHIA
HENLEY persuaded a Beaumont trial court and then the
Court of Criminal Appeals 10 find trial counsel ineffective
and granl punishmenl.phase relief.
JACQUELYN CARPENTER won a motion for a
directed verdict before Judge Shawna Reagin after the
complaining witness in an aggravated sexual assault
case recanted her allegations at trial. Jacquelyn modestly
credits Sarah Wood, Stan Schneider and Erie Davis for
their assislance, as well as the court's respect for Ihe
Rules of Evidenee.
Three long ycars of tenaciously representing an innocent
client in a welfare fraud case in tbe 208th District Court
culminated in TUCKER GRAVES persuading the
prosecution to dismiss all charges. And, then, when the
client was hospitalized with hean problems just before
Christmas, Tucker collected food and gift cards for her,
her husband and their four children.
He nol only writes about how to win OWl cases based
on blood warrants, but KEL.LY CASE prevails in them,
too! After proving there was no probable cause for the
arrest or the field sobriety lests, Kelly won suppression of
evcrything - even a .20 BAC - in a blood warrant DWI
case in Montgomery County Criminal Cowl-at-Law No. S.
The diem was charged with felony possession of marijuana
and with possession of a prohibited weapon, but he was
restored to freedom as a result of a day-long suppression
bearing won by MARY SAMAAN, SARAH WOOD
and JAJ"l/E VARA before Judge Herb Ritchie. This very
same team of legal eagles also won a significant motion
to suppress in the 209th District Court after they focused
on mciaJ profiling and prolonged detention by the DPS
officer. Commented Sunshine Swallcrs, "These three are
unstoppable!"
JOAQUIN JIMENEZ won dismissal ofa
cell-phone+in-the-pen prosecution folJowingjury selection
in Brazoria County. Although the State had olTered seven
years in state prison, the prosecution folded due to what
it tenned "unreliable evidence." As JelTPurvis observed,
Joaquin deserves much credit for calling the State's bluff
and demanding a trial.
Convincing a pancl of the United States Coun of Appeals
for the Fifth Circuit that the District Court erred, TIM
CROOKS won re-scntencing for a client who pleaded guilty
in a federal fireanns trafficking case. The panel (Stewart,
Dennis and Haynes) agreed with Tim thai the government
bad not met the preponderanee-of-evidencc standard required
for enhancement of the client's sentence.
The State thought the case was a slam dunk, but SCOTI
PAWGAN and REBECCA fLEMING scored an acquittal
in the 359th District Court in Montgomery County on
behaLf of a client charged with the state jail felony crime of
interfering with an emergency call.
ROBB f1CKMAN and TOM MORAN received a
5 I-minute acquittal in an aggravated sexual assault case
in the 230th District Court. The exoneration followed
a nine-day trial in which onlookers credited Robb with
making the State's case look"as transparently weak as it
was" while the client's entire family was in the counroom
for the whole trial. Robb credited Carey Wellmaker and
lJ. Gradoni for their outstanding investigation. And, nOI
long before that victory, all it took was one day oftnal
with MONIQUE SPARKS and Robb in an aggravated
robbery case before the State gave up and offered their
client deferred adjudication for misdemeanor theft.
Baseless charges of sexual abuse ofa child kept the client
from seeing his children for 18 months. TE'IVA BELL
enabled the client to be reunited with his family when she
persuaded the grand jury to no+billthe case.
JOSH SCHAFFER won a new punishment trial for a
life-sentenced client after convincing the Court of Criminal
Appeals that the original trial counsel had rendcred
incffective assistance of counsel in a mcthamphctamine
possession case. Notably - and commendably - Josh won
in the CCA after the trial court denied relief.
The client was charged with aggravated sex:ual assault
and had a prior for murder, but MURRAY NEWMAN
and CARM"EN ROE battled to a hungjury in the 180th
District Court. Observers say Murray's cross of the State's
expert was masterful, while Carmen sensitively dealt with
the child witnesses. The duo also thanked Brian Wice for
his assistance.
""""""'0
 Winning Warriors
DON HECKER put the Slale 10 its proof and got his client
acquitted of aggravated robbery in the 180th District Court.
A skillfully litigated ALR hearing allowed JOHN
DENEIOLM to nail down his defense of a DWI case and
persuade the State 10 dismiss just as Judge Pam Derbyshire
was calling a panel to the court for jury selection. And then
Jabn stayed in Harris County Criminal Court-aI-Law NO.7
to help Steve Shellist pick his jury. What a guy!
First he got one of the arresting officers to admit his client
didn't look intoxicated and then STEVE SUELLIST
heard the jury acquit his client of OWl 2d in Harris County
Criminal Court-aI-Law No.7.
CASIE GOTRO celebrated Ihc Christmas holiday season
with two dismissals and a grand jury no-bilL
MARK THIESSEN and TONYA ROL.LAND enabled
their client to fly home to Egypt after they obtained an
instructed verdict of acquittal from Judge Henry Oncken
in Harris County Criminal Court-at-Law No. 14 in a OWl
case with a .14 BAC. And, in another county court on
another day, Mark won an acquittal at a OWl trial despite
an unflaltering video and a receipt showing the client
bought cight Jacgcr Bombs (which wc're told consist of
one shot of Jaegenneister mixed with a half pint of Red
Bull).
A four-day OWl 2d trial with a .19 BAC ended in
complete and total victory for JED SILVERMAN and
STEVE GONZALEZ. The disconnect between the
c1icnt's allcgcd BAC and his actual appearance, as wcll as
a cross-examination focusing on an insufficient period of
observation were the keys to the acquittal. And, then, in
Harris County Criminal Court-at-Law No. 11, Jcd won a
motion to suppress a .144 BAC after Jed's litigation skills
led Judge Diane Bull to question the arresting officer's
credibility regarding the reasonable suspicion for the stop.
The client was charged with theft, but LORI BOTELLO
cut the State off at the prosecutorial pass by securing a
grand jury no-bill.
@TNlDlflNllER
Although her aggravated robbery client had been picked
out of a photo lineup as the perpetrator and the offer was
10 years in TDCJ, KIMBERLY SAMMAN got the State
to dismiss the case after convincing prosecutors that the
identification was suspect. Kimberly thanked David Adler,
Chris Tritico and brother Shawn Rudisc1 for their advice.
After deliberating 25 minutes (15 of which were spent
watching the video), a San Jacinto County jury exonerated
DORIAN COTLAR's client of OWl.
The State was offering five years in TOeJ in return for a plea
to a second degree felony, but JEFF PURVIS eonvioced
a Brazoria County jury to return a verdict for a Class C
misdemeanor (1) and the judge to levy only a $500 fine in
punishment.
After LEmA GRACIA gutted the State's OWl case by
winning suppression of the HGN, the walk and turn, and
the station video, she persuaded the court to enter judgment
of acquittal. We hear it was Leira's first OWl acquittal, but
we suspect it won't be her last.
Despite a plethora ofunhclpful hearsay evidence, RICK
OLIVER still secured a two-word verdict in a OWl trial
in Harris County Criminal Court-at-Law NO.13.
It looked bad when the cops stopped the client for a
traffic violation and found crystal meth in the gas cap
compartment, but BO HOPMANN got the cop to admit
during the suppression hearing in a Beaumont drug court
that he had only a hunch or suspicion for his search.
Viola! Tbejudge suppressed the evidence.
Example # 4,526 in why you should set your case for
trial: when the cops had 10 take the stand in RANDALL
KALLlNEN's de novo appeal ofa public inebriation
conviction, the State instead decided to dismiss the
conviction.
JIM MEDLEY won another OWl case, this time in Harris
County Criminal Court-at-Law No.1.
The c1iem was convictcd of murder in the death of a
fIrefIghtcr and scntenced to 10 years probation witb a
number of costly and humiliating conditions. The State
sought 10 violate the client after one failure to report
in 10 years and other picayune omissions, but ALVIN
NUNNERY waged a Iwo-day bailIe on the mOlion to
revoke probalion and persuaded the court to deny said
motion.
II was her firsl jury trial and a DWI case, 10 boot, but
SUNSHINE SWALLERS heard those two words every
lawyer and her client love to hear. nOI guill)'!
The jury was sworn and opening stalements held in
Harris County Criminal Court·at-Law No. I, but when
il was timc for DA YIO RYAN 10 cross-examine the
arresting officer, said cop refused 10 allow the cross
to occur, so the court entered a directed verdict of
acquittal. Later in Ihe same week and the same coun,
David heard the jury acquit his client after only 17
minutes of deliberation.
At age 15, the clicnt first downloaded alleged child porn
and uploaded somc photos to a file-sharing websitc. At
age 17, he was charged with Possession and Promotion
of Child Pornography and faced lifetime registration
as a sex offender. Then JlM SULLIVAN slepped ill
and persuaded thc prosecution to dismiss the case in the
I 76th Districi Coun and refile in juvenile court. One
week before the client's 18th birthday, Jim obtained
a five-year detcnninate sentence of probation and a
deferred decision regarding registration, thereby giving
the client his life back. Said Jim, "This is the first time I
have managed to persuade the Stale to dismiss an adult
case and refile in juvenile court." We suspect it won't
be the lasl time.

Criminal defense lawyers don'l need reminding thai

economic times are tough. In Harris Counl)' Criminal
Coun-at-Law No.4, thc client was very concerned
that, ifawarded probation by the jury, he did not have
the funds to pay all fines and court costs on the day
the sentence was delivered, as the court requires. But
ROBERT EUTSLER relieved the client's worries by
winning an acquittal.
HCCLM~mfoup
HCClA SUPPORtS HCCLA Welcomes
The Following
T-TlmES New Members:
HeClA, in conjunction with !he J. C,le Br.oks '"I V.•elld.1I
Amachi Texas Mentor program (a Franklil Byll" Bill Luthers
branch of Big Brothers Big Sisters Mlrt A. Carrero Ricltln J.lIn. Jr.
of Greater Houston), sponsored Ed.ie Cortes Di••e S. MaRson
and participated in the Big for a Mathew J. Delu~ Be,erly D. Melilltree
Jotl.Jy G. Garci. B. hlue Newsom
Day's Tea Time event. Volunteers
from HeCLA spent the afternoon
",.1 Jeth. Bollby D. Williams, Jr.

with children, during lea lime, on

Febn1aty 27, 2010. What a great
way to make a difference in the
lives of at-risk youth!
TEXAS~
L E GA L
PUBLICATIONS
Additionally. HeCLA is sponsoring another Big for a Day Tee
"UNOIN(; 1M' "',,, . . "c"o.. OIL .... 100. . '" IU'" ,.
Time on March 20, 2010 where our volunteers will playa round of " '"I> ' .. " ", '~'n ,,"" '''TI' , ,,,"
putt-putt golf with the kids. Feolurhg:
WUI. (U'. IOU"'. TUA' l,AWY. . . ftX .... DISTIOC. &
COUNTY ..nO.NEY"..."OC,..nON" OMNI ~U'lI$NIU" NN....
'UI" 'U'lJIN'NO Nn.. " 'OND McCLun 'UIUSN'NO" I .. U . .

'" ~,.oo"'~'~~:.~::~:::~::r~

rR..ElIHI ,NC ON ALLORDlU" ."CIAL OROUJi ...V... U..........l

OfflC....lIOOlU"TORI fOR YHl TlXM CRIMINAl.
IXH"'.I. .....WYtU MSOC....TIOH

lidO fANNIN 'dRill

flol"I.1N IX 77004
'1")1,''''''' 'lIU.,.,.",.
Being aSmart
Second Chair Protege!
Hints for Helping Your First Chair Help You
by Sarah V. Wood

• Understand that the benefits of a mentoring relationship are not

automatic and it may be up to you to drive the relationship.

• Take the initiative and maintain consistent contact with your first
chair. "at first they doo't respond. try. try again. They're probably
just bUsy winning cases.

• Make every effort to meet in person with your first chair. Shadowing
them in court is often the most effective way to establish critical
personal contact. This gives you a good chance to see your first chair
in action while getting to ask your own questions face to face. Ask,
-Would there be a good day next week for me to meet you in court?"

• Frequently express your desire to assist. Ask, ~Is there anything I can
do to help you this week?"

• Make sure your first chair is aware of your special talents and
expertise so that you can operate together as an effective team.

• Tell your first chair about your interesting or challenging cases,

Most knowledgeable lawyers can't help but offer a suggestion when
presented with a fact pattern,

• let your first chair know who you are. Infonning them of your
life situation as well as your professional goals will give them the
perspective necessary to best support you.

• Work hard. Do your homework, go the extra mite, and it will show.
Demonstrating competence will actually encourage your first chair to
do more for you,

• Make mentorship as gratifying as possible for your first chair.

Always express your appreciation and share your successes. Keep
your first chair engaged with polite conversation. Celebrate their own
accomplishments and promote their reputation.

• Realize that your first chair's responsibility is not to get you a job or
design a lesson plan, View the program as an opportunity to build a
friendly and mutually beneficial relationship,

• Maintain strict confidentiality and always respect the dignity of clients

and the authority of your first chair.

• Always uphold the highest ethical and professional standards as a

representative of the HCCLA Second Chair Program.
.
Defense-Initiated Victim Outreach
By Marilyn Peterson Annour Ph.D.
and Stephanie Frogge, MTS, CTS
@T1lEnmOlR
Ctminal dcfcnsc attorneys seeking to raise their standards ofpractice in
capital cases have 8 new tool for their toolkit in Defense-Initiated Victim
Outreach (DIVD). DIVQ is a mechanism thaI sreks to address the judicial
needs of victim survivors throughout the justice process by providing a
link between the survivor> and the defense. A significant departure from
traditional criminal justice-based victim !leTVices, DIVO serves as amethod
by which survivor families, if they choose, may ha\'C access to the defense
team. The defense team in return can give oonsidCl1ltion to requests from
survivor families.
Potential benefits to the victim survivor include the possibility of
information about the crime or the defendant, input inlo plea agreements,
empowerment through communication with the defense, and, in some
instances, influencing the defense team's behavior in minor ways. By
entering into DiVa, the defense agrees 10 respond in some fashion to
every communication - which provides for a measure of control to the
victim survivor in a typically adversarial environment in which Ihey are
nOI even a party.
1:e response will often be, "I am sorry, but we cannot provide you with
that infonnation at this time." Communication between the survivors and
the trial team will be through a victim outreach specialist (VOS). The VOS
will not be a member ofthe trial team, !lOT win be privy 10 any confidential
or privileged defense infonnation. The OIVOactivity must oot compromise
the lawyer's zealous advocacy on behalfof his chenl
OIVO is not an anti.dcath penalty initiative, and therefore is not dependent
on the victim survivor's view about punishment. Participation in DTVO
by the victim survivor is strictly voluntary, aOO the VOS only shares with
the defense information that the survivor has given express permission to
be shared. Although D1VO is not a means by which the defense can ask
questions of the survivor family or seek their opinion about punishment,
by creating the possibility of a relationship, such information may be
forthcoming.
in no way intending to diminish orcircumvenl any legal privilege accorded
a person charged with a crime, survivor family's needs specific to the
defense may indude having representatives of the offender hear their
story and acknowledge the loss they have suffered or listen patiently and
compassionately to the angcr victim survi\'ors feel toward the defendant.
They may want infonnation about how and why a crime happened and
specifics about their loved one in the last moments of their life, They may
want to know why the defendant pled not guilty after confessing, or even
additional infonnatioo about the defense team itself. Survivor families
may request that court proceedings not be scheduled on significant family
dates or even indicate whether or not they wish to be acknowledged by the
defense team during such hearings.
DTVO recognizes and supports a defendant's Sixth Amendment right to the
effective assistance ofcounsel. One ofthe unfortunate consequences of the
adversarial system, however, bas been the stereotyping and dehwnanizing
that often occurs of one side by the other so that victim survivors are not
recognized other than how they may be useful to the defense or as the
people in the courtroom filled with hate towards the elient and trial team. in
a tJaditionai criminal dcfense practice, thc needs ofthc survivors may never
be known or addressed. In additKnt to reducing unnecessary harshness
and tension in the current criminal justice system betv.'een \ictim families
and defense attorneys, DIVO also works to acknowledge and act upon the
involuntary, and often unspoken, relationship that exists between the victim
survivors and the offender in the aftermath of murder. This relatiooship
extends, in some part, to the trial team as well.
Criminal defense attorneys are finding that acting with civility toward the
survivor family can provide them with some dignity, create a less hostile
environment, and lessen, to some extent, aspects ofthe adversarialjudieial
process that tend to re-traumatize the survivors.
Amore civil environment can be bencficiailO their client and can also serve
as a principled way for defense counsel to acknowledge the harm done to
the victim survivors.
The need for DlVO is underscored by the American Bar Association's
Guidelines for the Appointment and Performance ofDefense Counsel in
Death Penalty Cases, reprinted in 31 HOFSTRA L. REV. 1091 (2003),
and the Standards and Guidelincs for Tcxas Capital Counsel, adopted
April 21, 2006 by the Texas State Bar and published in 69 TEX. B. J.
966 (2006). These Guidelines include defense outreach to survivors as
necessary to the effective representation of a capital client. The United
States Army Court of Criminal Appeals reached the same conclusion in
United States v. Kreutzer, 61 MJ. 293 (C.A.A.F. 2005), where it found
defense counsel ineffwive for failing to reach out to murder survivors.
Texas currently has 23 trained victim outreach specialists who can serve
as the conduit between the defense and victim survivors in cases where
the defense have determined such services to be useful and have secured
funding. Following a carefully crafted protocol designed to ensure the
integrity of the process and the prot~tion of the victim survivors, the
VOS makes contact to detennine what needs might exist that the defense
can address.
DTVO offers an ethical, principled bridge between the survivor family and
the defense counsel in capital cases that can be used at different stages in
the criminal justice process: during the trial, appellatc and post-conviction
proceedings, or whenever it may be initialed by the defense team. It also
offers a more active and empowering role for victim survivors in death
penalty cases without compromising the due process rights of capital
defendants. It increases options - and control over those options for victim
survivors and opens up the possibility that the defense team's expressions
of civility and sympathy to the survivors throughout the process, may,
paradoxically, be reciprocated.
For more information aboulthe DlVO program in Texas, which is part
of the Institute for Restorative Justicc and Rcstorative Dialogue in
the School of Social Work at the University of Texas at Austin, email
divo@austin.utexas,edu.
Marilyll Peterson Armour is an Associate Profwor at the School ofSocial
Work at the UnivmityofTexas at Austin. Her research interests include
restorativejustice and the families afhomicide victims.
Stephanie Frogge is a Lecturer in the School ofSocwl Work at the
University ofTexas at Austin. Her research interests include restorative
justice issues in capital cases and the nexus between af/er-death
communication and survil'(jr copingfol/owing the death ofa lo~'ed one,
'"(HR:NDU ®
 Attorney Strategy:

Don't Mess --.-----

with Texas

®..-
Terrain is not neutral-it either helps or hinders each of the opposed forces.
Commanders must develop an eye for terrain; they must recognize its limitations and
possibilities for protecting friendly forces and putting the enemy at a disadvantage.
Successful commanders understand terrain and how it affects operations. They are able
to grasp the potential capabilities and limitations ofthe space in which they operate.
us. Army Field Manual 100-5 1

It's fashionable among defense lawyers to knock The Corroboration Rule

Texas criminal practice. The assumption is that Texas
is somehow behind the times, almost medieval in its
criminal procedure, to the detriment of those unfortunate
enough to find themselves accused in a Texas court.
Even a superficial analysis shows this assumption to
be altogether false; Texas defendants enjoy many basic
rights denied to the accused in other American systems of
criminal jurisprudence.
Several years ago I attended a seminar on federal practice,
sponsored by the Federal Public Defender's office. It was
no surprise that the speakers wcre mostly federal defenders,
other federal employees, or lawyers who practice in federal
court more-or-Iess exclusively. Several were fulsome in
their praise of the "Article III courts" as a great forum that
provides manifold opportunities for defense lawyers to
exercise creativity in defending clients.
In federal court a defendant can be convicted solely on the
testimony of a co-defendant, accomplice, or co-conspirator.
United States v. Arledge, 553 F.3d 881 (5th Cir. 2008).
This is especially true where the judge gives the jury an
instruction on accomplice testimony. United States v.
Osum, 943 F.2d 1394 (5th Cir. 1991).
Contrast this with the situation in Texas. Article 38.14
of the Texas Code of Criminal Procedure is a general
corroboration statute that requires corroboration
of accomplice testimony. Article 38.141 requires
corroboration of a witness who is not a peace officer, but
who is acting covertly on behalfof law enforcement. And
Senate Bill 1681 recently established Art. 38.075, which
imposes a new corroboration requirement on jailhouse
snitches.

A student raised his hand and took issue, pointing out that
thcre arc many rights Texas defendants have that federal
defendants do not. That set me to thinking. I abandoned
my note-taking, took a fresh sheet of paper, and started
listing them off the top of my head. It was apparenl that
the objector was right.
Terrain is essential to consider at all levels of military
strategy, from the infantry squad inching its way through
ajungle in 1967, to the clash of titanic anny groups in the
Soviet steppes in 1941. It is one factor that commanders
can do nothing to alter. 2 Strategy and tactics must be
adjusted to the terrain, and not the other way around.
Here I argue that the "terrain" in Texas favors defendants
over that in the federal system, and by implication, in the
states that more-or-Iess follow federal practice.
What follows is not an exclusive list of Texas law
beneficial to the defense. It is also not my intention to
delve into the intricacies of case law and local practice.
But I think the following examples demonstrate that if
one must be indicted, Texas might not be such a bad place
after all.
This is a substantial additional burden on the prosecution.
Many cases which would be upheld in the federal courts
would fail in state court because of the corroboration rule.
At trial, because Te",as law requires jury instructions on
accomplices both as a mailer of law and as a mailer offact,
there are opportunities for good lawyering. Smith v. State,
286 S.W.3d 412 (Tex. App.-Corpus Christi 2008).
Jury Punishment
Article III and the Sixth Amendment to the United States
Constitution provide a right to a jury trial, but that right
extends to the issue of guilt only (the Eighth Amendment
requires ajury to assess punishment in capital cases. Ring
v. Arizona, 536 U.S. 584 (2002»).
In Texas the defendant can elect whether he wants the
judge or the jury to assess punishment after a jury trial.
Tex. Code Crim. Proc. art. 37.07 2(b). This election is a
statutory right, not a constitutional right. Tinney v. State,
578 S.W.2d 137, 138 (Tex. Crim. App. 1979). It applies
to felonies and misdemeanors punishable by jail.

TNIDlflIllEI@
 This is a huge advantage. If you are in federal court
facing a "hanging judge," you're stuck. There's simply no
decision for the lawyer to make. But in Texas you can, and
must, carefully size up the judge and thc prospective jury
pool, look at your client and his facts, and decide who will
sentence. And the prosecutor has nothing to say about it.
Probation Eligibility
There is no general probation eligibility in federal court.
Look at the sentencing guidelines; although they arc no
longer mandatory, almost everyone convicted of a federal
crime will do some amount of time in prison.
In Texas, Article 42.12 ofthe Code ofCriminaI Procedure
gives defendants a general right to be considered for
probation if they have never been convicted of a felony
and punishment is assessed at 10 years or less, ellcepting
only a few offenscs.
This is another advantage which works several ways for
the defense. First, it is possible to be convicted of a very
serious crime, such as aggravated robbery with a fireann,
and still avoid any prison time if the jury sees fit to grant
probation. Second, when the prosecutor knows your client
is probation eligible, it provides him with an incentive
to offer a bettcr pica bargain. Third, it is widely believcd
that the presence of probation on the table during jury
deliberation causes juries to agree on a lower sentence of
imprisonment than they otherwise would have imposed.
No Sentencing Guidelines
Federal judges were bound by mandatory sentencing
guidelines. Even after United Slates v. Booker, 543 U.S.
220 (2005), which made the guidelines merely advisory,
federal judges still continue to follow them in most
instances. These guidelines apply complicated fonnulae to
a defendant's offense, criminal history, and aggravating and
mitigating factors, and specifically exclude some factors
that defense lawyers think are relevant to sentencing. The
result is that the defendant falls into a cell in a matrill which
specifies a narrow range of punishment.
Tellas law docs not contain guidelines. Rather, the
Pcnal Code specifics ranges of punishment which are
broader than the approach in the Federal guidelines. For
ellample, a person accused of aggravated robbery who
is probation-eligible can receive as little as five years
probation and as much as lifc in prison. This extreme
range generates much uncertainty, but the defense lawyer
®THEDlfEffDER
can use that uncertainty to his advantage if he has an
attractive client. Whether the defense elects judge or
jury punishment, a broad range of punishment allows the
dcfense attorney the opportunity to present mitigating
evidence such as age, mental condition, prior military
senrice, medical problems, susceptibility to peer pressure,
family and community tics, and the like, which could not
even be considered under the federal guidelines.
Admissibility of Statements
Federal law allows the admissibility of a defendant's
statements in any fonn. [n other words, as long as the
record shows that Miranda was complied with, oral
statements come in. [f a defendant denies making an oral
statement, it's his word against that of the agents.
But in Tellas the admissibility ofstatements which are the
product of custodial interrogation is governed by Article
38.22 of the Texas Code of Criminal Procedure. This
statute requires a recording or a writing, and the Miranda
warnings have to appear in the recording or writing.
This prevents law enforcement from testifying that the
defendant responded orally to custodial interrogation.
Many statements, or purported statements, of the
defendant that would be admissible in Federal court are
not admissible in Texas courts.
Enlusionary Rule
In federal court, the only searches and seizures affected
by the Fourth Amendment are those that are the result of
governmental action. Burdeau v. McDowell, 256 U.S. 465
(1921). In other words, only searches by police, or persons
acting at the direction of the police, implicate the Fourth
Amendment.
However, Article 38.23 of the Tellas Code of Criminal
Procedure provides that "No evidence obtained by an
officer or other person ..." is admissible if it was obtained
in violation of the constitution or laws ofeither the United
States or ofTellas. A "private scarch" by a person who is
nOI a peace officer, which is in violation of the law, will
render any items seized inadmissible. Livings/on v. Slate,
731 S.W2d 744 (Tex. App.--Beaumont 1987, pet. rerd).
This distinction is often missed: If a burglar breaks into
a house and discovers child pornography, that evidence
is admissible in federal court, because the burglar was
not acting at the direction of law enforcement. In Texas,
because the burglar was violating the law when he found
the porn, it is not admissible.
Additionally, the Texas ~good faith" exception, enacted
as Article 38.23(b) of the Code of Criminal Procedure, is
not coextensive with the federal "good faith" exception
but applies only if the supporting affidavit states probable
cause. See Gordon v. Stale, 801 S.W.2d 899 (Tex. Crim.
App.1990).
Timing of Motions to Suppress
Rule 12 of the Federal Rules of Criminal Procedure
specifically requires motions to suppress to be made in
advance oftrial. Judges typically issue a scheduling order
that requires the defense 10 notify the prosecutor of their
inteOl 10 move 10 suppress well in advance of the trial
dale.
Under Texas law, a mOlion 10 suppress need nOI be in
writing and can be made at the time the evidence is offered.
Johnson v. State, 743 S.W.2d 306 (Tex.App.-San Antonio
1987, no pet.); Roberts v. State, 545 S.W.2d 157 (Tex.
Crim. App. 1977). Not only does this afford the defense an
opportunity to surprise the prosecutor, such a motion can
be made after jeopardy has attached.
Voir Dire
Rule 24 ofthe Federal Rules ofCriminal Procedure stales
that the judge may examine prospective jurors, or the
parties may be pennitted to examine them. If the judge
does the voir dire, the parties have the right to either ask
additional proper questions or submit them 10 the judge
who shall ask them.
In Texas the defense has the absolute right to conduct
its voir dire, even to the extent of asking questions that
have already been asked by the judge and the prosecutor.
McCarter v. Stale, 837 S.W.2d 117 (Tex. Crim. App.
1992).
This can be another huge advantage to the defense. In a
federal trial where the judge conducts all the voir dire, the
defense lawyer is denied the opportunity to make contacl
with the jurors, to ask his questions in his own style; in
short, he is prohibited from conversing with the panel.
Not so in Texas, where his advocacy can begin with his first
words to the venire.

Reciprocal Discovery
Rule 16 of Federal Rules of Criminal Procedure provides
that if the defense requests inspection and copying of
documents and objects, and the prosecutor complies, then
the prosecutor can make a similar discovery request of the
defendant
Texas discovery is governed by Article 39.14, which docs
not provide for reciprocal discovery, except in the case of
expert witnesses.
The federal rule imposes a choice on the defendant: docs he
forego discovery in order to retain surprise? Or does he get
his discovery and perhaps pay a price? Texas law creates no
such dilemma. A Texas defendant can (and should) request
discovery without the burden of reciprocation.
Grand Jury Presentations
It is a crime to attempt to influence a federal grand jury by
written communication. 18 U.S.C. § 1504. By contrast, it
is an accepted part ofTexas practice to make written grand
jury prcsentations. Most of us have had cascs no-billcd
because of such action.
Right to Bail
There is no federal constitutional right to bail, and neither
is there a statutory one. 18 U.S.C. §3142. A detention
hearing may be held and your client locked up for the
duration of the war.
By eontrast,Article I, Section 11 ofthe Texas Constitution
provides that all prisoners shall be bailable, except in
capital cases where proof is evident. In a very few other
situations the State must move to deny bail within seven
days, and if the court grants that motion, the defendant is
entitled to bail 60 days later.
®THEDlfEffDER
Deferred Adjudication
There is no deferred adjudication in federal coun.
There is in Texas: Article 42.12 § 5 of the Texas Code of
Criminal Procedure. This of course allows a defendant to
dispose of his case without a final conviction.
Severance
There is no mandatory severance in federal coun. Rule 14
of the Federal Rules of Criminal Procedure provides that the
court may sever defendants or counts if it appears that the
defendant will be prejudiced. The defense bears the burden
of showing substantial prejudice. Zafiro v. United States, 506
U.s. 534 (1992).
Texas law provides for severance of offenses as a matter
of right. Tex. Penal Code § 3.04. Also there is mandatory
severance of parties if the co-defcndant has an admissible
prior conviction and the movant does not. Tex. Code Crim.
Proc. an. 36.09; Haggerty v. State, 825 S.W.2d 545, 547
(Tex. App.-Houston [1st Dist.] 1992, no pc!.)
Cross-Examination
Rule 611 of the Federal Rules of Evidence limits cross to
the subject mailer of the direct examination and witness
credibility. The court has discretion to pennit other cross.
Rule 611 of the Texas Rules of Evidence states, "A witness
may be cross-examined on any matter relevant to any
issue in the case, including credibility." The right to
cross-examine is "broad and wide-ranging and extends to
any matter relevant to the issues." Woodall v. State, 216
S.W.3d 530 (Tex. App. - Texarkana 2007). Texas cross has
been described as "wide-open." Crosby v. State, 696 S.W.2d
388 (Tex.App.---Dallas 1985), rev'd 750 S.w'2d 768 (Tex.
Crim. App. 1987).
These are some examples of favorable terrain. Doubtless the
reader can think of others.
In light of all this, the conclusion is incscapable that the
''terrain'' in Texas favors the defense. Texas criminal practice
affords defendants many more basic rights and advantages
than does the federal system and, therefore. the Texas defense
lawyer has many more opportunities to make decisions and
exercise strategy. If you want to do some terrain-intensive
strategy and creative lawyering for your clients, Texas, not
the federal system, is the place to be.
I Deparunent of the Anny (1993).
1 Although tons ofAgent Orange defoliant were dropped on
Vietnam, it is considered to have had little effect on the jungle
canopy.
 DW~ QLOOD DeFeNSe:
Part ill, Preparation and Trial
This is the flflal article ofa IM»part series on defending the OWl
case based 00 a blood wammt Since: this series began. I have
been asked by oomcrous lIll<:lm:yS roc assistance with such cac;es
am I have Icamcd somcIh.ing with C\'a)' case I revieY.r. Doo.'\ be
afraid to ask qucstXm and admit thai )W doo'l koow everything.
Fewofus do...wcl~ with a fcwcxccptiMs We an: here to help
each ocher get better at wha1 we do and the only way 10 do that is
to share infamation.
Some ofthe most important 1essom are as CoBo",'!>:
Don't assume that the State is correct. In fact, assume the
opposite. This should be self expIanaJory. tM ~ rime I bear
that the prosecuur teU the judge how the gowmmenl gets it right
and we should trust their labs lUX! scientific resullS, my "spidcr
seme" SlartS tingling. Yours should, 100.
Earlier this year, we had a week that began with below-free2ing
temperatures and ended with ~ in thenUd-70's-aJ] in
the span of a few days. Tanpcrature affects the growth of
bacteria, which is one more reason we should always know the
temperature on the day ofour client's alleged offmse, as well as
how long the blood sample wenllll\refiigerated.
The one thing that the State does not want to disclose to you
will usually be the Item that Is most important to your
defense. Fight for it Nobody ... and I mean nobody respects a
lawyer that is 100 afiaid to stand up for their client Your
profession requires you to fight for your client, so don'! be afraid
to mix it up sometimes.
by Kdly w. =
Question e\'U')1hing and.wek aIJ5\ol-en from eIpeI1S and
otbeI- qualified defense altonJe)'S. We are on cutting edge
of defeno;e with these blood ca:scs ftr the Stare ofTexl5.
There is a huge amount of good W~ can do if we make the
right arguments early in this battle. Your experts and more
expcrin:ed fellow defeme anomeys can be a huge help and
you should ask questions of t\-e:rything dealing with your
"""
Go back to the basics! This may seem selfexpIanarmy, buI
don't forget that the State IOOSI still put 00 evldfn:;e ofeadi
and every one of the demenlS ofDWT. Unless theyClDl do
so, they don't gel: pll'il a directed verdict. Sometimes the
lenderx:y is for both sides to get so wrapped up in the
proseculion and defense of the scientific evidenre, that one
side or the OCher 0\IC't00ks the fact that the State has failed to
prove one of the basic ek:men1S of the offense.
Become • civil attorney! I say this with tongue in cheek.
Ask any civil attorney where most of their time is spent and
it is requesting for or !"C:SpO[¥Iing to discovery. We need to
improve our discovery requestS and make the State get us
our evidence,
--@
 Leading up to !he trial ofa OWl case based on a blood draw, you
must be cettain !hat you have requested and obtained all of !he
discovery to which you are entitled. This means that there should
be no!hing left to chance. If the prosecution claims an open file
policy,do not be satisfied. Make a recordofyourrequcstsand!he
prosecutors' responses. Don't be afraid to sct hearing<> on motions
to compel and makc a record ofwhy !he State will not or cannot
disclose theircvidcncc.
1llC best one I have heard is wi!h one brea!h a prosecutor claims
!hat!hc office maintains an open filc policy ruK! in the ncxt brea!h
argues that !he evidcncc you arc requesting is "not in my file."
VeritY that the discovery motion has been signed by the judge,
and you have obtained everything !hat was ordered to be
disclosed at least one mon!h prior to !he trial date. Any
gamesmanship by the prosecutor in providing late discovery
should at least be growxls for a continuance, arK! may be
suffieicn.t cnoogh for sanctions. You have to know your judge
well enough to know whether you can prevail on a sanctions
lllotion as we have all been in courts where the State can "do no
wrong:' Just ask Sharon Keller.
Discovery is where a large portion of!hese cases are won or lost.
And you should re-familiarize yotrrsclfwi!h the important Texas
Court of Criminal Appeals and United States Supreme Court
decisions regarding the prosecutor's afjimJOliveduty to disclose.'
Put the burden on the State (0 disclose everythiflg that is. or could
potentially be exculpatOl)' or impeachment evidence. If the
prosecutor claims that the evidence does not exist, obtain an
@THEDEFUlD1R
affidavit of non-existence from !he custodian of records for !he
agency in question or make a record of the steps taken by the
prosecutor to secure the evidence you believe exists. Then when
it shows up on the day of trial, at the very least you have grounds
for a continuance.
In your prcpamtion for trial, you may find that the vampire docs
not wish to discuss thc case with you. Document the dates and
times you left messages for them and then request a dcposition.2
In the motion, make a record by listing the dates and times ofthe
messages you left.
Prior to setting the case for trial, you should have obtained your
expert's opinion and developed yourthoory ofthe defense that is
consistent wi!h the expert's review of the evidence. Ideally, you
have had time to develop the case through further recommended
testing by your expert, or been able to dctcnninc problems with
the State's proof. Just remember that arlY additional testing you
request will most likely have to be disclosed to the prosecution.
This is why I do not recommend additional alcohol testing on
yourclicn.t's sample.
Prior to 2009, the Drs lab on West Road was considered by local
defense attorneys to be one of the best in the area. However,
recently, the discovery responses from the lab have proven to be
problematic for the State. For example, in Montgomery County,
the State was prosecuting an accused citizen for Intoxication
Manslaughter based on lab results of a .09 blood alcohol level
following a fatal accident. FOltUnately, the savvydcfensc attomey
listened to his clicnt when his clicnt insisted that he did not havc
CIIOIJgh to drink to reach thai level. While 1 don'l rcconunend
lCSting the blood for BAC, that is exactly what this attorney did
and the result was .~. W'hen this was brought 10 the DA's
altCl1tion. the blood was ro-tCSled al Drs lab and the case was
dismissed.
How can a Drs lab make this son oferror and still be accredited?
The accused's liberty was hanging in the balance and all he go!
was a '~ny bad" fium the State! To my knowledge, there has
ncver been any inquiry into how this could have happcocd and
the OffICe of the District Attorney still ~ this lab 'With
confidence." Outragoous!
This paper assUlTlCS you have a basic working knowledge of the
proccdwt:S and science behind blood alcohol testing. This is a
huge assumption bemuse as [ said. [ am slilllC3l11ing this after
several years. Look for scminarn in areas of your v."Cakncss or
beg. borrow orsteal materials from other attorneys 10 assist you in
your prcparation.I);x]'tleavc anything 10 chance. You may havc
a nur.;c on your panel who knows the proper procedur'c$ and
knows !hey are not followed for CVCl)' blood draw.
So, when the Statc's witness takes the stand and claims 10 havc
followed the exact procedwt:S each and cvcl)' tinle, without
exception, and claims thai she is "dead on, balls accurate" (a la
My Cousin Vill/ry) eYCT)'single time, your nur.;c on the panel will
know that witness cannot be trusted. Ideally, your other jurors
will piek up on that fium your voir dire questioning of the nurse,
evcn if the nur.;c docs not cventually sil on the jUlY. Unless you
know those proccdurcs, you win notgain the nurse's vote when it
comes time for the jUlY 10 decide.
Th.SI im"ilu illuSlrll. Ill.
ite... 'fOU will fin<! in Ill. blood
drlW kll. Mak. ,urt 10 c~t<:k
all dal.. listed on d.... ~_..
During voir dire. you win find that at least some of the panel
rncm~ think the State is going bcyorxl acccplable limits when
it forcefully takes a JlC'I'SOI1's blood. Evcn in OOllSCJ'\'ativc
Montgomery County as moch as half of the panel will believe
that the State has gone too far. Exclude those who believe
otherwise on consIitutional grounds
In almost all of the cases 1have defended there has been at least
ooc nur.>c and one other person who has visited jail. Get them
talking. Ask the nurse questions aOOut how important it is to
follow established procedures. Ifyour clienl's blood was dra\\l1 at
the jail, ~'CI the jail visitor talking aOOut the jail's sanitary
conditiorls.
One of my heroes, Gary Trichter, has published numerous ankles
on DWI voir dire that are better than anything I could hope 10
produce. Review his articles and apply those great lessons to your
case.The trial ofa DWl blood case is no different than anyother
OWl case. Makc the State prove each and every one of the
clements. Hold them to their burden of proof. Thoroughly
prepare for your cross-examinations. Conduct a devastating
cross-examination by properly questioning the wilflCSS. By this, r
mean that a proper cross-examination is one thai leaves the
witness with only one answer, usually yes. If you do IlOt control
the witncsscs, then you arc not cngaging in proper
cross-examinalion.'
lk,.A6.1:l41
• anAssoriale HeClA !\ICllIbcr.
we do appointed and ,>aitl work
for many HCCLA memhers.
(281) 440-0800
Email:
lJ@Gradoni.com
tHl DEfEntl @
 OWl Blood Defense: Part III, Preparation and Trial
There ore so mooy defenses to one of these cases that I ccn'IOt
possibly bt 1hem all Some of the more oommon prosecukrioJ errors
that I hove seen ore:
I J) Probable couse affidavits that ore coodusory, improperly
obtained or f ~
2) Foilure to follow proper procedures to obto... 0 werrant'
])) Failure to property sanitize the room where the draw was
oonducted
4n Failure to properly dean the site of 1he draw on the
ocx:used's ann
5n Mixflg of blood viols from outside sources
6n Failure to ocllere to lrivefscl pre<DUtions and bIoodbome
pathogens g<jder"""
7» Failure to insert the needle property, or not knowing where
the needle was hserted [I'lducfng wrong angle or i1to 0 vein)
8n Blood viols are sealed improperly
9)) Blood viols are inverted improperly
IOn Blood viols are not stored correctty (no refrigeration or
refrigeration offer several do)'5 have elapsed)
11» Blood viol is improperly labeled and improperly
transported to lob or transported to wrong lab
12)) Blood kit has expired, expiration dote has elapsed on
blood viol
13» Blood has seeped out (what seeped ;nl)
141> Kit qvestiomoires and doo..mentation are incomplete
15» The lob has improperly maintained the GC/MS, pipettes,
or any of the other equipment used to test your crleflt's blood
16» The analyst had not passed the profICiency exam and
wos not capable of conducting the test
17nThe GC/MS coIurms were contaminated as evidenced
by additional elements on chromatogram
18)1 Blood coagulation lead to higher BAC result
19)1 Improper pipette storage lead to oontamination from
previous sample tested
20n Improper alllCUlt of blood was obtaned in vial
0"'......
1_
The available defenses are 100 nwnerous Ie be
listed. You ll11.1'iI have a good underslanding of
the available defm;es and rely on your expert Ie
assist you in dcvcloping your Iboory of the case.
But more importantly, you ItMl UlXbstand that
even your expert may IWlt be able Ie provide you
with all avmucs of defmding your client You
must be familiar with your local jurisdiction's
manner of obtaining these blood draws so that
you can effectively argue to your judge the best
possibk defense based 00 the ~ U'iCd in
your jurisdictioo and based upcn the facts ofyour
"'"
Some of the witnesses you can expocl to see in a
DWI blood trial are the arresting oflia2-, the
individual who drew the bklod, the custodian of
records from lhe 00spita1 or- jail, any alklitiooal
officers and possible nlJlSe witnesses, lab analyst
that performed the analysis of your clieot's
bklod, and a Drug Reoognition Evalualor. l Your
witnesses will include your expen, alSIOdian of
records in the event your client has a medical
condition that would give rise to a valid defense,
and possibly an SFST expert, your 0\\'11 DRE
and/or your c1M:nt's physician or someone
familiar with your client's medical history 1O
explain that the client always looks like that!
Don't forget to brush up on your Daubert' law.
There are some excellent internet sires available
to assist you with your research. 1
Your pretrial motions packet should include a
requesl for Nolicc of Experts and request for a
Daubert hearing for every expert thai the State
intends to call. Force the State to prove that their
cxpert is qualified, the tess ocIministered are
based on valid methodologies, and the ~ were
proprerly administered in this case.
Don't assume that a Drug Recognition Evaluator is,. in fact, an
expert at drug recognition. Challenge these "experl'>" evety time
you get the chance. Also, unless the Drug Recognition Evaluator
followOO all of the steps of the presmbed protocol, they should
!lOt be alloo-ed lO give their testimony. DRE's are technical
e:qx:rts. They must foIJow the steps involved or !heir coochmons
shouJd be inadmisslble. They are IlOl scimtific apeI1S and should
not be alloY..e d to draw oonclusions or ~ !heir qHnion without
the State proving that they fol.lowtd thc ~-step pma:dure k)
reach a conclusion. And the only opinion they are qualified to
give is that afta following each and evr:ry step of !heir protocol,
they determined that your client was intoxX:aIcd because of
ingesting alcoboI or SOO1C drug. They are !lOt torimJogisls. so
lbJ.', let them get away with pn:tt:nding to be en:.
Make a record to prcscrvc any appellate issues and always
remember that your ultimate audicn:::c may be the Court of
AppcaIs, not the judge orjury in front of you..
These cases will test your limits so n:mcmbcr that a problem can
never be solved with the same mirdsct that mated it Be creative,
be meticulous and represent your clic:nt to the best of your ability.
Good lucid
I S«Kylnll If?IiIky,SI4 US419(I99S),UniledSJaterll Bagkly,
473 U.s. 667 (1985), UrIiIedSlOles llAgurJ,427 U.s. fJ7 (1fJ76).
Brady v. M.y\!ud. 373 U.s. 83 (1963).

These trials can be very lengthy. Gcncrally, they are nu:b Iooger 1 T~CodcCrim.Proc.§39.02.

than the l&Iai OWl trial. Make sure your judge is aware ofhow
1 lany S. PamEr &. Roger J. Dodd, Ooss-£UlII1U,aliot,: Sdence and
Ioog you anticipate the trial will last buI may go longer deplnIing
TedInique:l (2d cd 2(04).
on the witnesses.. IlCIljudges that to uyoneofthese cases, with a
motion to ~ and !he number of witnesses involved will • S«T~CodcCrim. Proc. § 18.01,tlMtl.
take a minimum of one week, possibly as much as two weeks.
They balk, b.Jt I am not going to cut short my case to help them J Thc:se wimesses arc: NOT Drug Reoognitim Experts. 1f)W IR that
with their docket - and neither should you. 1I.nnirdogy, thol )'00 arc: buying into prosr:aIlOf's fill1acy and ~;ll
have a harder lime coo~irritg ywr judge: they arc: not ccpots, wbel:l
)'00 n:fcrrod to tbc:m as sx::h..
If you I1a\-1:: taken the time to read !his article, then you are a
professional lawyer and know what it takes to prqme for a long ~ Dauben II MerriJJ Dow PharmooeuliaJIs. }ftC., S09 U.s. S79 (1993).
trial. YooshouldhavechaJgedsufficientlytocoveryourexpenses
and make: these cases worth your time. To adequately uy these 1If)'OO GoogJc: DaubeTt, a tistofthesc sites will come up and severnI
will allow you to track Daubert cases in )'OUI' jurisdiction.
cases, you will ncOO a consulting toxicoklgist and additionally a
Drug Recognition Evaluator and a Standardized Field Sobriety
Testing expert. Kelly W. Case is an experienced criminal defense kmyer who
practices in Galveslon, Harris and Monlgomery rounties.
These cases are long, detailoo and time consuming to try, but that
is what we, as profcssionallawycrs must do. Additionally, there is
a large body ofmatcriaJ and additionallawycrs that have years of
experience in 1OO;cC3SCS from different partS ofthc United States. Forensic Science Resources"
I would strongly urge you to consider joining the National
CrlNSCtnIllelatnletlH
College for OUT Defense if your goal is to bcoome better at FII'IIIIc SC.CI ClllnItlUlI

. . --
__1_-
defending these cases. Every year around the first week of April, .........,. ClIIIIftItIH
the NCOO co-sponsors the "Mastering Scientific Evidence" Cri.. SCIIIIIVIItIIItI_
COlUSC where the best attamcys and experts from all over the IINlIIIIII PItlIn 111II1II
oo.mtrymcct Thisycar'sscminarwillbeheldfromApril8to 10, SIlIInt IlIIItIftCldlI
.11r~.. ClalIIIdII
2010,inNcwOrl~

Finally, be sure that you and your staff can harxUe these cases . . .ICI......HIC- _
from stlrt to finish. Be sure that your cliern undernnds the type
mnm-m. _ _
of oommitment that is involved in defending these cases and is
aware that you are only the: mouthplcoc: and c:anrot testilY for
them as their expert.

,....... ®
 Networking your office computers can be relativcly
simple. It also is a great way to share office files and
avoid investing in redundant equipment such as printers.
The savings, in real dollars by networking your office
can be incredible. When you factor in the time saved in
getting information between employees at the office and
the ability to work from home while accessing office
information not to mention the money saved sharing one
printer with all of your employees instead of a printer al
every desk the savings arc obvious. Your business runs
on information (data). The ability to automatically 'back
up' your data in a centralized location also provides a
cost saving, "business saving" potential. In the evenl you
experience a failure in your system you will have the
peace of mind knowing that each workstation has been
backed up and the back up is current.
@TllElUUIli
Without a network you arc relying on each individual to
back up their data regularly and to a secure commonly
known location.
Soluud::llsut.~D"'I:llTDWgllll"'Cfl"1::::lII"IIt..Wl::lrk?
Let's take a look at a simple peer-to peer network or P2P.
A pure P2P network docs not have the notion of clients
or servers hut only equal 'peer' nodes (PC's, printers,
etc.) that simultaneously function as both "clients" and
"servers" to the other nodes on the nelwork.
Networking your system can be explained in these steps:
» Sot.-lIp
» ITIilint.anilnc
» Aaliabilit.l.I
Sot.-up
Most new and recently purchased computers are network
ready in tcnns of both hardware and software. The only
"on board'" hardware that is required, a network inlctjace
card (NIC) is an internal component that is faewry
installed in most every PC and may be wired or wireless.
This is your connection point 10 the network. To manage
data tmffic between PC's and office equipment we use
a router and switch. A router/switch basically directs
Network traffic between networked devices. If you
imagine a wagon wheel, the switch would be the common
point (hub) at which all PC's, printers internet modems
and network devices connect via cables (spokes).
Should you desire a wireless network connection, a
wireless access point (WAP) can connect to the switch.
Additionally a ...>ire/en networlc inteiface adaptor may
be required for your computers and network equipment
if they are not already "WiFi" or wireless compatible.
A high speed inlernet connection inteiface is needed to
connect to the World Wide Web. A simple diagram of
this physical layout may look something like this:
With your network physically in place, the next step in
the set-up process is to understand how to use and manage
software to provide access to resourees and manage data;
in a word, sharing. A right click of the mouse on any
device, data file or folder that is resident on one computer
will navigate to this "sharing" option. Once shared, the
path to the device or data can be "mapped" from other
network computers, thus allowing the network dcvicc or
data resourcc to virtually cxist on any other network Pc.
One important aspect of sharing is the ability to access
and save data in a secure commonly known location,
allowing more efficient and reliable data management in
tenns of security and data back-up,
..............-
System maintenance should always be deployed as a
proactive etTort in the fonn ofa preventative maintenance
program. Prevelltative mailllenance (PM) simply stated
;s the "good housekeeping" of your system hardware,
software, and data. Physical and environmental elements
make the largest contribution to data loss due to hardware
failure, Virus attacks pose great threat. Data "clutier"
naturally occurs and slows down system perfonnance.
Software updates are commonly released by developers
to increase perfonnance or "patch" software errors and
areas that are vulnerable to virus attack. System logs and
device profiles should be checked to verify the proper
function of system software and devices. A disciplined
PM program should not only provide optimum
pcrfonnance of your system, It should also provide
protection through predictive: insight and action. Just as
you bUSt a mechanic for the maintenance of your car, it is
wise to enlist an IT professional provide PM services and
tcchnical assessment ofwhat's going on 'Under the bood"
of your PC,
-..
Data reliability is the most basic and critical aspects of
your computer system management. Your important data
can be compromised from many fronts. Preventative
maintenance procedures are your front-line defense
system. However, when a threat penetrates your
front line defenses and dcslroys data, thc only path to
recovery is to restore data from a previously created data
backup. While virtually everyone is in agreemcnt of the
imponance of backing up data, 11 is surprising how few
adequatcly deploy and maintain data backup disciplines
that provide a reliable restoration and recovery pathway
from catastrophic data loss, Data reliability will generally
include regular data backups with local and otT-site data
storage. Also commonly overlooked is the preservation of
and access to computer opcroting system and application
software media. Data back-ups lire of no use if you cannot
restore the software that accesses and assimilates the data,
Your original application software discs and registration
licenses or product keys must be readily available for
reinstallation in many dal.ll loss siluations such as a hard
drive failure. Other tcchnologies such as drive mirroring
and error chccking or parity can be deployed in order to
further enhance data reliability.
Lester Lavin and Mark Hl'izdos operate Bayou City
COllnceted, an IT services firm in Houston. They note
that real infonnarion technicians don't care to be refe"ed
to as "geeks" and cal/tion that, if yOl/r main contact
with IT is through a response "squad, .. )'01/ 'yc probably
deploying the wrong IT strategy.
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by Jim Willis
This edition of Investigator's comer will recap the
discussion topics from the past three editions.
Digital DNA is here to stay. As technology advances so
does the ability to foUow one's actions. More people
advertise their entire life on the internet with sociaJ sites
like Facebook., MySpace, and Twitter. Current case law
gives the social sites protection from defense subpoenas
for eontent I have the current language available for
anyone who would like to read it.
Surveillance cameras capture more events than anyone
can imagine. However, the retcntion time for camcras
varics drastically. It is important to inquire and prescrve
the footage as soon as possiblc.
Computer forensics continuc 10 be a rapidly growing field.
In many cases, the analysis is crhical to a proper defense.
The most readily available evidence in everyone's
possession is a cell phone.
Cell phone teehnolollV has become an important
investigative tool. The cell phone can be used in a
number of ways if you know how to preserve the data.
More important is getting the device to a qualified
technician for downloading and documenting the
info""ation. Many smart phones, just like computers,
maintain the information even if deleted by the user.
Location technology: Cell phone signals can even pinpoint
an individual's location. Generally, a court on:Ier is
needed to obtain that infonnation. Requests pursuaDl to
court Older take time to process and interpret, so move
early when you need this information.
Text messaging: At the end of January 2010, Sprint joined
cell carriers Cricket, AT&T, Boost and T·Mobile in not
retaining tcx.t-message content. Only the transmission
record of which device sent tex.t data to another device
will be available. Verizon, meanwhile, will retain a
"rolling calendar year" of data. All other carriers will
have transmission data available for the previous 45 to 60
calcndar days.
As criminal defense aoorneys, you are ehallenged from
many angles, oot the least of which is wooong up cases
~ith few resources. Prosecutors can be slow in providing
dlsco~ery and making decisions, judges will not budge,
and chents want everything immediately. The last thing
you need to do is wonder how you are going to fmel the
time to worle your case load.
Find an investigator that you ean work with and fonn a
professional worleing environment. Once that relationship
is fonned, you will find your time is bener utilized. Just
as prosecutors have their investigators, you, too, should
have the ability to use your investigator for assisting in
the case work up. More imponant, avoid making yourself
a witness in your own case. Do not let this happen to
you: conduct an interview of a potential witncss, then six
months later the witness wants to change their view of the
interview.
The World Investigators Conference will be in Dallas
~rom. March II 10 13. Encourage your investigator to
inqUIre. The training and ex.perience is invaluable. I
welcome any requests that you may have in the area of
investigations or topics.
Jim Willis is a private investigator Yl'ith Benken &:
Associates. He may be reached at 713·]]3-405 I and
jwillispi@aof.com
TW:1UlI. . @
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