January 2015

United States Supreme Court case highlight: Blueford v. Arkansas

The case dealt with the double jeopardy clause and whether it applies to partial or informal verdicts.

In Blueford, the defendant was being tried for capital murder.  The trial judge instructed the jury that if it did not find the defendant guilty of capital murder, it should consider the lesser included offense of first degree murder.  The court further instructed that if the jury did not find the defendant guilty of first degree murder, it should consider manslaughter...and so on and so forth.  After several hours of deliberations, the jury reported that it could not reach a unanimous verdict.  The judge inquired into how the voting was going and the jury reported that it had decided that the defendant was not guilty of capital murder or first degree murder, but that it could not agree on manslaughter.  The judge instructed the jury to go back and keep trying, but they were unable to break the impasse.  Accordingly, the trial judge declared a mistrial.

During the retrial for the same offense, the defendant objected on double jeopardy grounds to the charge of capital murder, arguing that the jury's informal verdict that he was not guilty of capital or first degree murder precluded him being retried for that same charge at a later trial.  The trial court disagreed, as did the appellate courts.

In a 6-3 opinion (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito), the Supreme Court held that :

The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.  The jury did not acquit Blueford of capital or first-degree murder.  Blueford contends that the foreperson's report that the jury was unanimous against guilt on the murder offenses represented a resolution of some or all of the elements of those offenses in his favor.   But the report was not a final resolution of anything.  When the foreperson told the court how the jury had voted on each offense, the jury's deliberations had not yet concluded.  The jurors in fact went back to the jury room to deliberate further, and nothing in the court's instructions prohibited them from reconsidering their votes on capital and first-degree murder as deliberations continued.  The foreperson's report prior to the end of deliberations therefore lacked the finality necessary to amount to an acquittal on those offenses.  That same lack of finality undermines Blueford's reliance on Green v. United States, 355 U. S. 184, and Price v. Georgia, 398 U. S. 323.  In both of those cases, the verdict of the jury was a final decision; here, the report of the foreperson was not.

This holding appears to be consistent with Texas law, in that a jury foreperson must sign a verdict form and the court must accept the verdict, before it is given any legal significance.

Justices Sotomayer dissented (joined by Ginsberg and Kagan), and would hold that partial verdicts should be required before a mistrial is granted on the grounds of a deadlock.

I'll never forget something I heard back when I was going through Marine Corps Officer Candidate's School.  After somebody said "thank you" to a Drill Instructor, the Drill Instructor looked at the person (in a way only a Drill Instructor can) and responded "Don't thank me.  The government thanks me every two weeks!"

I felt a little like my former Drill Instructor recently as I was talking to a couple of my court-appointed clients.  For court-appointed cases, the county pays me to represent indigent defendants.  This doesn't mean that I have any obligation to help the county move cases or plead my clients guilty.  My only loyalty is to my client, regardless of who is paying the bill.

However, on two separate occasions last week, a court-appointed client offered to give me a little cash if I could help them get a better deal.  Like my former Drill Instructor, I did my best to explain there is no need to give me anything.  You'll get my very best even though the county is footing the bill.

Misconceptions abound when a defendant spends any amount of time in jail.  The jailhouse lawyers love dispensing their "legal knowledge."  One of the first "CLE's" that the jailhouse lawyers hold is the primer on court-appointed lawyers.  About how we are in cahoots with the State and how we are only interested in pleading the clients out at the first setting.  Not true.  At least not true in our criminal defense firm.

Of course there are times when the very best plea offer from the State comes at the first setting (as it should) and it is in the defendant's best interest to take it.  But not always.  And if we need to expand our investigation and do a little more negotiating with the prosecutor, or if we need to prepare for trial, then we'll do it.  No need to pay me any more money and no need to thank me (but a thank you is nice from time to time).

Investigating Every Case to Uncover the Real Truth | Fort Worth Criminal Defense Lawyers

Every criminal allegation exists in a gray area. If one were to focus solely on the police report, a criminal case might seem black and white. But it's not. There are secrets, personalities, motivations, half-truths, unnamed witnesses, and much more lurking in the shadows of every case. One of the keys to a successful defense is to uncover those facts not articulated in the police report and give the case a context. This is why we use a private investigator as part of our defense team.

A good private investigator is indispensable to a full and complete criminal defense. You would be surprised to hear what people will tell an investigator (while being recorded). Perhaps it's because people like to feel important, or maybe some folks just aren't completely aware of what they are saying, but a good private investigator can blow a case wide open simply by hitting the streets to interview witnesses and others connected to the case.

Our investigator is a retired police officer that spent over 30 years on the force in the Dallas Fort Worth Metroplex, including many years as an undercover narcotics officer. He can look at a police report and spot errors in the investigation at the drop of a hat.

If you have been charged with a criminal offense in Tarrant County, Texas and you know that there is more to your case than what is contained in the police report, give us a call and we will coordinate with our investigator to get started uncovering "the rest of the story." Contact us today for a free consultation.

A Review of Jessica's Law in Texas | Sex Crimes Defense Attorneys

The 80th Texas legislature enacted the "Jessica Lunsford Act" (H.B. 8) to create a criminal offense of Continuous Sexual Abuse of a Child (Texas Penal Code 21.02).  The chart below details the particulars of the offense of Continuous Sexual Abuse of a Child under Section 21.02.

The elements of Jessica's Law:

• The sexual abuse may be committed against 1 or more victims. (Texas Penal Code 21.02 (b)(1))
• The complaining witness must be a child younger than the age of 14. (Texas Penal Code 21.02(b)(2))
• This offense does not apply to juvenile offenders. (Texas Penal Code 21.02(b)(2))
• A jury is not required to agree unanimously on which specific acts of sexual abuse the defendant committed or the exact date when those acts were committed. (Texas Penal Code 21.02(d))
• The jury must agree unanimously that the defendant committed 2 or more acts of sexual abuse during a duration of 30 days or more. (Texas Penal Code 21.02(d))
• An affirmative defense does exist for the offense. If the defendant was not more than 5 years older than the complaining witness; did not use duress, force, or threat; and was not a registered sex offender, then the defendant may raise these points as an affirmative defense. (Texas Penal Code 21.02(g))

Punishment:

• For a first time offense, regardless of prior criminal history, the range of punishment is 25 to 99 years or life in prison. (Texas Penal Code 22.02(h))
• Any subsequent offense will result in life in prison without parole (Texas Penal Code 12.42(c)(4))
• Even for a first time offense, there is no deferred adjudication community supervision (Texas Code of Criminal Procedure Art. 42.12, Section 5(d) (3)), no judge-ordered community supervision (Texas Code of Criminal Procedure Art. 42.12, Section 3(e)(1)), or no jury-recommended community supervision (Texas Code of Criminal Procedure Art. 42.12, Section 4(d)(1)).
• Essentially, probation in any form or fashion is not an option under Jessica's Law.
• Additionally, a defendant convicted under this law has no eligibility for parole. (Texas Government Code Section 508.145 (a)).

Aside from a capital murder charge, the offense of Continuous Sexual Abuse of a Child is now considered the highest level of offense a person in Texas can be charged with. We've had several years to watch juries handle these types of cases and we've seen that juries tend to punish severely when presented with continuous sexual abuse of a child.

If you or a loved one is facing a serious criminal charge in Tarrant County, Texas, please call our experienced criminal defense attorneys today at (817) 993-9249. We offer free consultations.

United States Supreme Court | Search and Seizure Update

We expect that police officers know the law.  After all, they are charged with upholding the law.  But what happens when an officer makes a traffic stop based on an incorrect understanding of the law and then finds evidence of another crime during his improper stop?  The Supreme Court recently considered this scenario in the case outlined below:

In Heien v. North Carolina, a North Carolina police officer stopped a man for driving with one broken brake light.  The driver later gave consent to the officer to search his vehicle. The officer discovered cocaine charged the driver with trafficking cocaine. The driver argued that the officer made a mistake of law for stopping him on one faulty brake light and not two (which is what NC law requires) therefore evidence should be suppressed.  The NC vehicle code makes clear that the officer was mistaken when making the traffic stop.

The Supreme Court granted cert to review the case and the question of whether an officer who makes a mistake of law still gives rise to reasonable suspicion. They Court ruled that the officer's mistake of law was objectively reasonable and that ultimately, the Officer had reasonable suspicion to conduct the traffic stop.  In so holding, Chief Justice Roberts wrote "The Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials 'fair leeway for enforcing the law.'"

While not dealing with specific state law in Texas, the ruling in this case did address reasonable suspicion as it relates to unreasonable searches prohibited by the 4^th Amendment.  Article 38.23 of the Texas Code of Criminal Procedure states:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

While Article 38.23 of the Texas Code of Criminal Procedure provides an exception if an officer is acting in objective good faith reliance on a warrant, it does not give a reasonable suspicion exception to conduct a search.  Clearly, the Heien opinion will be cited by the State to support searches even when the initial stop is conducted illegally.  We will just have to wait and see how our Texas Courts will react in light of Heien v. North Carolina.