February 2015

Posted by Luke A. Williams.

I recently attended - along with prosecutors, other defense attorneys, and law enforcement officers - a continued legal education course regarding wrongful conviction. The course kicked off with the study of a case out of North Carolina of two men (19 and 15 at the time of their convictions) who were recently exonerated via DNA evidence.

The men, Henry Lee McCollum and Leon Brown, both confessed to killing an 11-year-old girl in 1983. The question that immediately floated around the room was: why would these two boys confess to a horrific murder if they didn't actually commit the crime? It's a fair-enough question and probably the reason the jury that eventually found them guilty of the murder sentenced both of these boys to death. But - in the spirit of Paul Harvey - the "rest of the story" explained how these confessions were coerced.

There was no physical evidence that tied McCollum and Brown to the crime. The lead that was provided to investigators came in the form of a rumor from a fellow schoolmate of the boys who cast suspicion on them because they had recently moved from New Jersey - they were outsiders. Investigators took them in for questioning. Initially, they took in Henry. After five hours of questioning with no lawyer present and with his mother weeping in the hallway, not allowed to see him, Henry told investigators a story of how he and three other boys attacked and killed the girl. He was promised that if he confessed to the crime he would be released to his mother - he was 19 years old. His "statement" was typed out by the investigators and he put his signature to it after the 5-hour interrogation. The last thing Henry said after signing the confession was, "Can I go home now?"

After Henry's interrogation, Leon was brought in (at 2:30 a.m.). He was told that Henry had confessed and implicated Leon being involved as well. Leon was made similar promises and also told that he would be executed if he did not cooperate. After another lengthy interrogation, Henry also confessed to attacking and killing the girl.

Both men were tried and both men were sentenced to execution.

After 30 years, lawyers from the Center for Death Penalty Litigation began pressing for DNA testing of the physical evidence in the case, which included a cigarette butt found at the murder scene. The DNA was matched - but not to either McCollum or Brown. The DNA came back as a match to Roscoe Artis, a man who lived in a house yards away from the wooded area where the murder took place. Coincidentally, only a few weeks after the murder, Artis confessed to the rape and murder of another 18-year-old girl in the same town. The circumstances surrounding that murder contained striking similarities to the murder that McCollum and Brown were convicted of. Artis was implicated in a number of other murders that occurred in the same area and all under the same or similar circumstances. Based on the DNA testing and the investigation into Roscoe Artis, after 30 years in prison and on death row, McCollum and Brown were exonerated and released.

It's a story that, as a defense attorney and former prosecutor, I've heard before. While not the norm and certainly not common, it's something I know has happened. The key question though is, "does this still happen?" I was surprised when I overheard one of the members of law enforcement in the room exclaim that, "Oh, this would never happen these days." While I certainly agree that things have changed and drastically improved since the days of McCollum and Brown, I can't help but think that the mentality of the impossibility of this happening again is an extremely dangerous one.

I imagine if this case happened today; certainly DNA would be gathered and tested against suspects. But, what happens if there isn't any DNA at the scene (yes, this could still happen)? What happens if false or speculative accusations or suspicions occur again? What happens if false confessions happen again? In a horrific murder case, I think its naïve for anyone in the field of criminal justice to make a blanked statement that, "this could never happen again." It can and it will. We have a great justice system but not a perfect one - a human one.

Things have got better. Prosecutors, defense attorneys and law enforcement personnel have a heightened awareness of the possibility of a wrongful conviction. But, we all must remain vigilant and never put on blinders to the fact that it can happen again.

Can Police Enter a House Without Knocking or Obtaining a Warrant | No-Knock Entry Defense Lawyers, Fort Worth.

The Fourth Amendment, generally, protects American citizens from unreasonable searches and seizures. Nevertheless, there are exceptions that allow police officers the ability to enter one's home without a warrant or notice. These instances are commonly called "No-Knock" entries and are permitted only when a police officer has a reasonable suspicion that knocking and announcing their entry would be dangerous or futile.

In Trent v. Wade, the Defendant, a police officer, witnessed two all-terrain vehicles (ATVs) racing on a closed section of a freeway. He attempted to pull over the two ATV riders, but they both fled, and the Defendant followed one rider to the Plaintiff's house. The Defendant parked outside and entered the house without a warrant, upon which he encountered the Plaintiff and discovered that his son was the person riding the ATV. The Defendant arrested the son, and the Plaintiff sued the Defendant under 42 U.S.C § 1983 claiming that the Defendant violated his Fourth Amendment rights against unreasonable searches and seizures by entering his house unannounced and without a warrant.

The Defendant argued that because he was in hot pursuit of the Plaintiff's son, the hot pursuit exception authorized his unannounced warrantless entry into the Plaintiff's house. However, in order to justify a "no-knock" entry, the police officer must reasonably suspect that knocking and announcing his or her entry would be dangerous or futile. Such an entry is futile when the occupants of a house are already aware of the police officer's presence outside. The Court ultimately held that while the Plaintiff's son was aware of the Defendant's presence, there was a question of fact about whether the other occupant's of the house were aware of his presence.

Consequentially, the Defendant was denied qualified immunity.

I grew up with Sheriff Andy Taylor. And his trusty sidekick Deputy Barney Fife. If you've never seen the Andy Griffith Show, shame on you. It is an American classic about life in the small rural town of Mayberry, North Carolina. I would venture to say I've seen every episode (the black & white ones) at least four times each (syndicated reruns of course, because the show originally aired in the '60s).

One of the things I loved about Sheriff Andy Taylor was his innate sense of right and wrong. While Barney Fife was out there trying to arrest jaywalkers and moonshiners and everyone else who broke a minor municipal code, Andy saw the big picture. Andy may have very well been justified to make arrests or detain citizens for investigation, but he was more concerned with what was right and decent. And when he suspected or observed actual criminal activity he took action.

As criminal defense lawyers in Fort Worth, Texas, we read police reports every single day. In many of the police reports we read, the officer's actions are more akin to Barney Fife than Andy Taylor. I get the feeling that many officers have the mindset of "arrest everybody and let the DA sort it out." When officers are called out on a family assault or domestic violence call, somebody is getting arrested. Period. The officers don't try to deescalate the situation or truly figure out what the couple needs. They generally listen to the parties and arrest the one that has fewer injuries (regardless of which person may have called the police).

We've also seen numerous arrests of young people for committing youthful hijinks, such as trespassing on school property. Sheriff Taylor would have taken the kid home and made him tell his parents what he was doing. He wouldn't arrest the kid. But officers in DFW are making arrests in these scenarios.

Of course, we only see the cases where there are arrests. There may indeed be officers out there that are getting it right. But, we still see too many arrests when something less would have achieved the right result. Don't get me wrong.  We're not against law and order. We are champions of justice, and justice does not always mean arrest and prosecution. Perhaps the police academy training should begin with a rerun of The Andy Griffith Show. Personally, I recommend the episode where the cow thief was putting shoes on the cows.

To the average person, the offense of Forgery probably doesn't sound like something that occurs on a regular basis. The term "forgery" usually conjures up the image of a shady artist carefully recreating some poor, unsuspecting victim's signature and then passing themselves off using the victim's identity. While an act like this most certainly would be forgery, the offense in Texas actually encompasses a broad range of activities and, because of that, it is much more common than most people realize.

The definition of forgery is laid out in Sec. 32.21(b), which states that,

a person commits an offense if he forges a writing with intent to defraud another.

Simple enough, right? Not quite. The simple definition of forgery begs multiple questions. For instance, what is the definition of "forge?" And, what is the definition of "writing?" This is where the net gets bigger.

The legislature defined "forge" in Sec. 32.21(1) to include a wide range of acts. These include altering, making, completing, executing, or authenticating any writing with the intent to defraud in addition to issuing, transferring, registering the transfer of, passing, publishing, or otherwise uttering a writing that is forged. What is a "writing" you ask? Well, the legislature decided to stretch the net even further by defining a writing as a printing or any other method of recording information as well as money, coins, tokens, stamps, seals, credit cards, badges, trademarks, symbols of value, right, privilege or identification.

Most forgery cases in Texas deal with the writing or passing of forged checks or fake currency. Occasionally, we see cases involving credit or debit cards charged as forgery (although there is another offense in the code more accurate to charge these types of offenses). While we see quite a few of these more common offenses involving checks, I can't say that we've ever seen as case of forgery involving publishing a symbol of privilege with the intent to defraud.

But, as you can see the net is wide and I'm sure someplace, sometime one of those exotic forgery fishes will be caught up in the State's tangled web.

Under Texas Penal Code § 20.04(d), a kidnapper who voluntarily frees his victim in a safe place reduces his or her punishment level for aggravated kidnapping from a first-degree to a second-degree felony. In construing a "safe place," Texas courts consider seven factors:

1. the remoteness of the location,
2. the proximity of help,
3. the time of day,
4. the climate,
5. the condition of the victim,
6. the character of the location and surrounding neighborhood, and
7. the victim's familiarity with the location or neighborhood.

However, these factors are merely aids in defining what constitutes a "safe place," which is made on a case-by-case basis, bearing in mind the totality of the circumstances.

In Butcher v. State, the appellant kidnapped the nine year-old complainant at knife point while the complainant was walking to school. After putting the complainant in his car, the appellant drove her to his apartment, bound her hands, and put her in his closet. After eight hours, the appellant decided to release the complainant and dropped her back off at the site of the kidnapping.

The appellant argued that because he returned the complainant back to the site of abduction during day-time, he released her in a safe place since the complainant's mother allowed her "to walk to and from the school bus stop by herself before this incident, [the complainant] did not ask a passing mailman for help after she was released, and that [the complainant's] mother described [the complainant] as independent."

Applying the factors to Butcher, the Texas Criminal Court of Appeals held, nonetheless, that because the site of the kidnapping was "desolate," the complainant was released in the middle of the road, the appellant kept the complainant's cell phone, and the complainant's family did not have a home phone, the site of the kidnapping was not a safe place.

Moreover, the Texas Court of Criminal appeals distinguished Butcher with Storr v. State. In Storr, the appellant had kidnapped the complainant, but, similarly, released him back at the site of the abduction. The Court held that the area was a safe place because the complainant was college-aged, released at a post office during business hours near his university, and he had available transportation. However, the complainant in Butcher was nine years old, released in the middle of a desolate road, did not have available transportation or a phone, and returned home with nobody there, thus rendering the site of the kidnapping unsafe.