March 2012

PROSECUTOR POST - Here is a helpful tip from a Texas prosecutor on Trial Advocacy in the criminal courtroom:

After years of practicing in criminal courts, I've seen numerous courtroom styles from criminal defense attorneys. One of the most prominent is the "grandstand" (a.k.a. Posturing). I would define the "grandstand" as attempted behavior exhibited by an attorney to establish dominance in the courtroom. Please note that word - attempted. From yelling to whining to stomping around and slamming things on counsel's table, I've seen it all. Sometimes this behavior isn't intentional but actual passionate investment, but more often than not I can see it's a show for the client.

The client wants the bulldog lawyer in the courtroom. At least that's what I hear. I think some of what I'm referencing is an attempt by these lawyers to be that bulldog by "grandstanding." However, in my experience, these attorneys that "grandstand" in court, end up looking like the yipping chihuahua instead of the bulldog. And it's funny to see the look on the defendant's face when he realizes he's hired the yipping chihuahua.

The more effective style I've seen is the old German Shepherd approach. The attorney that comes in and exudes that high level of comfort in the courtroom. He's professional to everyone (including state's counsel) and acts in a way that sends the message to his client - "yes, I've been here several times before." Does he "grandstand?" No. He establishes dominance by respecting the balance b/w the defense, the state and the bench. Does he bark? Sometimes. But only when there's cause. And when he barks everyone hears it and respects it.

Howes v. Fields is a U.S. Supreme Court Case that was released on February 21, 2012.  In this case, the U.S. Supreme Court confirmed that there is no bright line rule for determining when an inmate is in "custody," such that Miranda warnings are required if officers wish to questions him about an unrelated crime.

While serving a jail sentence, a corrections officer escorted Fields to a conference room where two police officers questioned him about an unrelated crime.  At the beginning of the interview, the officers told Fields that he could leave whenever he wanted.  Fields eventually confessed to the crime.  The officers never advised Fields of his Miranda warnings or told him that he did not have to speak with him.

The Sixth Circuit Court of Appeals held that any time an inmate is taken from the general prison population and questioned about a crime that occurred outside the prison, he is always in-custody for Miranda purposes.  Makes sense, right?
The Supreme Court disagreed.  The Court held that serving a term of imprisonment, by itself, is not enough to constitute Miranda custody.  When a prisoner is questioned, the determination of Miranda custody should focus on all of the circumstances surrounding the interrogation, to include the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted.

In this case, the Court held that Fields was not in-custody for Miranda purposes.  Although the interview lasted between five and seven hours and continued well past the time Fields went to bed, the officers told Fields several times that he could leave and go back to his cell whenever he wanted.  Additionally, the interview was conducted in comfortable conference room, the officers did not physically restrain or threaten Fields and they offered him food and water.  All of these facts are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.

The CCA handed down two opinions today dealing with legal sufficiency of evidence.  Johnson v. State (Tex. Crim. App. 2012) involved a variance between allegations in the charging instrument and the sufficiency of the proof presented at trial.  Wirth v. State (Tex. Crim. App. 2012) involved a general question of legal sufficiency in light of the recent case, Brooks v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).

In Johnson v. State, Appellant was convicted on various counts of aggravated assault.  The indictment read that appellant did then and there, “intentionally or knowingly cause serious bodily injury to [the victim] by hitting her with his hand or twisting her arm with his hand.” The complaining witness in the case testified that appellant threw her against the wall and that hitting the wall caused her to fall to the floor and break her arm.  Appellant’s criminal defense attorney argued that the variance between pleading and proof rendered the evidence legally insufficient to support the conviction.  The CCA held that ultimately, “the act that caused the injury does not define or help define the allowable unit of prosecution for this type of aggravated assault offense, so variance at issue cannot be material.” The CCA also stated that this type of variance involved immaterial non-statutory allegations and when a variance like this presents itself it will not render the evidence legally insufficient.

I thought this case was interesting because, as a former criminal prosecutor, I used to try and charge the most accurate manner and means possible.  I came across cases like this occasionally where we alleged one way that a defendant had assaulted a victim and then upon further investigation or questioning of the victim, it looked as if there was going to be a variance.  In those cases, I would amend the indictment to reflect the more accurate description of the manner and means.  Another method that is commonly used by prosecutors is to allege a very broad manner and means.  Often, you will see the manner and means in an assault alleged, “by striking with defendant’s hands.” This language covers various types of assaults (slapping, punching, grabbing, squeezing).  But, in looking at the Johnson opinion, it looks like the bottom-line is that if the language in the indictment involves immaterial non-statutory allegations, it will likely not render the evidence legally insufficient if different evidence comes up at trial.

In Wirth v. State, the Appellant was convicted of the offense of Theft of $20,000 or more but less than $100,000, a third degree felony.  The Sixth Court of Appeals (Texarkana) held that the evidence was legally insufficient to support the conviction and rendered a judgment of acquittal. The State filed a petition for discretionary review.  The CCA found that the Sixth Court of Appeals had erred and reversed the Court’s decision, reinstating the Appellant’s conviction.  The CCA recognized that the Sixth Court of Appeals had reviewed the Appellant’s case and found that the evidence was factually insufficient to support the verdict based on Clewis v. State, 922 S.W.2d 126 (Tex. Cr. App. 1996).  As the Court noted, at the time that the Court of Appeals considered the Appellant’s case, the CCA had not issued its opinion in Brooks v. State, 323 S.W.3d 893 (Tex. Cr. App. 2010) which essentially overruled the factual sufficiency analysis (see our previous post on this issue here).  In light of the Brooks decision, the CCA analyzed Appellant’s case based on the legal sufficiency of the evidence and held that there was legally sufficient evidence (even given that the evidence was purely circumstantial and that the defendant was a party to the crime) to support the jury’s prior verdict of guilt. Accordingly, the CCA reversed the judgment of the Sixth Court of Appeals and affirmed the judgment of the trial court.

Below are some case summaries from recent Fifth Circuit Cases regarding search and seizure and confessions.

4th Amendment Search and Seizure

United States v. Gray, February 1, 2012

Officers had probable cause to believe that appellant was concealing crack cocaine in his rectum.  After conducting two strip searches, in which appellant was not fully cooperative, an officer told appellant that he could either undergo a third strip search, be placed in a cell with a waterless toilet or he could consent to a rectal x-ray examination.  After appellant refused to consent to any of these options, officers obtained a search warrant in which appellant was forced to submit to a proctoscopic examination under sedation.  A doctor eventually recovered over nine grams of crack cocaine from within appellant.

The court held that the search was unreasonable because it was demeaning and intrusive to appellant’s personal privacy and bodily integrity and that there were less invasive ways to recover the evidence, such as a cathartic or an enema.  However, court held the evidence should not be suppressed because the police acted on good-faith reliance on a valid search warrant. In doing so, the court encouraged magistrates, where feasible, to hold a hearing to allow for more careful consideration of the competing interests at stake in medical procedure search cases.

United States v. Hernandez, February 8, 2012

Federal agents received an anonymous tip that appellant was harboring illegal aliens in her trailer.  The agents conducted a knock-and–talk in which they banged on the doors and windows, with their weapons drawn, while demanding entry and then attempted a forced entry by breaking the glass on the door.  When appellant answered the door, she admitted that an illegal alien was inside her trailer.  Agents entered the trailer and arrested appellant and two illegal aliens.  The court held that the agents’ conduct during their knock-and-talk violated the Fourth Amendment.  Since a Fourth Amendment violation had occurred by the time appellant came to the door, the agents could not rely on her admission as probable cause to either enter the trailer or arrest her.

Next, the court held that the incriminating statements appellant made to the agents, after her arrest at their office, were also inadmissible.  They occurred only a few hours after an egregious Fourth Amendment violation and no intervening events occurred to break the connection between her arrest and her statements.
Finally, the court held that the statements obtained from the two illegal aliens were inadmissible against appellant.  The government offered nothing more than pure speculation that their statements would have been inevitably obtained but even if they had, their statements were not sufficiently separated from the Fourth Amendment violation to make them admissible.

Voluntariness of Confession

United States v. Cantu-Ramirez, February 6, 2012

In this multiple defendant case, appellant Lauro Grimaldo argued that the district court should have suppressed his confession because federal agents delayed in presenting him to a magistrate judge for more than two hours for the purpose of interviewing him and obtaining a confession.

The court disagreed after applying the Supreme Court’s guidance from Corley v. United States.  First, because appellant’s presentment was delayed for less than six hours, his confession was admissible as long as it was obtained voluntarily.

Second, based on the totality of the circumstances, the court found that nothing about the interview indicated that his confession was involuntary.  The interview lasted only ninety minutes, the agents wore casual clothing, appellant was not handcuffed and the agents offered him food and drink and allowed him to make several phone calls.  The agents advised appellant of his Miranda rights and took care to ensure that he understood and voluntarily waived them.  The agents obtained appellant’s confession voluntarily and it was properly admitted against him.

This opinion reflects the personal views of the author and should not be attributed to any agency or office.

There has been a lot of media attention recently on rape victims and the prevalence of rape in the military.  As some of the individuals retell their stories, it is clear to see that they suffered from a traumatic experience.  However, being in the military myself, and a former military prosecutor no less, I do not share the opinion that there is an "epidemic" in our ranks.  Does sexual assault occur in the military?  Absolutely.  But does it occur at a rate any higher than what you might find on an average college campus or in the public writ large?  No.  And when sexual assault allegations arise, are commanders sweeping them under the proverbial rug?  Certainly not!

One of the major differences in the military justice system versus the state criminal justice system, is that the District Attorneys in the states can evaluate the allegations, and if they decide that the case lacks prosecutorial merit, they can refuse to present the case to a grand jury for an indictment.  Another major difference is if the grand jury says there isn't enough evidence, the District Attorney can't go forward.  Neither of these checks and balances are found in the military justice system.

Instead, unit commanders (called Convening Authorities - usually Colonels and higher) decide whether a case should proceed to trial.  For felony-level cases like sexual assault, they must first receive a recommendation from a neutral investigator, but the ultimate decision on whether to go forward with a case rests with the commander.

The neutral investigator (called an Article 32 Investigating Officer) hears the evidence that the government has against the defendant and makes a recommendation to the commander.  This sounds fair so far, but when the investigator recommends NOT going forward on a sexual assault case because of deficiencies in the evidence, all too often the commander is faced with a dilemma: dismiss the charges as recommended or forward the charges to a General Court-Martial.  The easiest decision is to send it forward.

But can you blame them?  What are the commanders supposed to do when the deafening chorus of politicians and news anchors are calling for more accountability for "rapists" in the military?  Does anyone really expect a commander (typically a rising star in the military) to risk their professional future by refusing to send a rape allegation to trial and face being labeled by the media as "hiding rapists" or being "soft on sexual assault?" No way!  They are going to take the easy way out.  The politically palatable way out.  They are going to kick the can down the road to the prosecutor and let him take the case to trial, warts and all, under the guise of letting "the military justice system runs its course."

Please do not read this to say that I think all sexual assault allegations in the military have no prosecutorial merit.  Many do.  But can we ever expect the commander to make the hard call to dismiss a case when it lacks merit?  Not any more.  And then when the prosecutors do their very best with a case that would have never gone to trial in a state system, we ask: Why can't you get the conviction?  The prosecutors may possess the trial skills of Perry Mason or Clarence Darrow, but they can't change the facts of the case, the rules of evidence, or the burden of proof.  These cases are seldom black and white.  And in a Constitutional system that requires proof beyond a reasonable doubt, convictions are (and should be) hard to come by.

With all of this going on (our focus on the victims), what is baffling to me, is that we are forgetting about the accused.  What happened to "innocent until proven guilty?" Congress is asking for more convictions; going so far to change the military sexual assault laws in a shameless effort to secure more convictions, while, the accused is labeled a rapist before even having his day in court.  This is terrible and antithetical to our criminal justice system.  We can't simply jettison the Constitution when it is politically appealing.

Many the media outlets that have focused on this issue, they are the only one, in my opinion, that has its priorities straight.  Sometimes justice means that a person is convicted of sexual assault.  Sometimes it doesn't.  But this prejudgment of military defendants (or any defendants) has to stop.  By law, an accused is innocent until a verdict of guilty is returned and no sooner.