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2 From the President By Patrick F McCann

3 Winning Warriors

7 Appellate Court Shuffle on Jury Shuffles Judicial Voodoo on Who Do the Asking By Troy McKinney

9 The Importance of Mitigation By Bettina Wright LCSW LCDC

14 Strategy Ca rpet Bom bi ng the Witness By Joseph W Varela

18 Halloween 2007

HCClA ~~~~~~~ PRESIDENT Patrick f McCann

PRESIDENT ELECT Mark Bennett

VICE PRESIDENT JoAnne Musick

SECRETARY Nicole DeBorde

TREASURER Steven H Halpert

PAST PRESIDENT Robert J fickman

BOARD OF DIRECTORS Thomas Berg Neal Davis Christopher Downey Todd DuPont II Tyler flood Tucker Groves Mark Hochgloube Rondoll Kollinen feroz Merchont Morjorie Meyers fori D Musick John Parros Robert A Scardino Chorles StanPield Amanda Webb O Tate Williams

PAST PRESIDENTS 1971-2008 C Anthony friloux Stuart Kinard George Luquette Morvin O Teogue Dick DeGuerin WB House Jr David R Bires Woody Densen Will Gray fdword A Mollett Carolyn Garcio Jock B Zimmermann Clyde Willioms Robert Pelton Condelorio flizondo Allen C Isbell Dovid Mitcham Jim L Lovine Rick Bross Mary f Conn Kent A SchoPPer Don Cogdell Jim Skeltan George J Pornhom Garland D MCinnis Robert A Moen lloyd Oliver Donny fosterling Woyne Hill Richord fronkoPP W Troy McKinney Cynthia Henley Stanley G Schneider Wendell A Ddom Jr

2007-2008

~~~ 1f~~ PRESIDENT By Patrick F McCann

Friends

I want ro wish each and everyone of you a warm and happy holid ay As this calendar year draws to a close I wanted to express my thanks and appreciation tor your help and

suppOrt during the first half of my year serving as your President

It has been busy Rarely docs a lavyer get ro sign three different grievances against three different judges in a lifetime let alone a six month period Yet I promised that your voice would be heard and when together we said Enough to the callous disrespect to lawyers and to clients shown by some judges it made headlines across the state and the nation I met with the U S Attorney and expressed our hope that they will continue to vigorously pursue bad cops via civil rights prosecution and that they would in light of the recent Tyrone Williams case reshyconsider their efforts on death cases I had the privilege of testifying at the state legislative hearings on the HPD lab scandal and having the HCCLA point of view put out in the Chronicle oped pages so the public could understand why this issue is so important

I have also as I promised joined both the Mexican American l3ar Association of Houston and the Housron Lawyers Association as this goes to press I urge all of you to consider reaching out to these organizations and encouraging their members to join us to speak our against unfair treatment of any person regardless of race creed color religion or orientation Although my initial attempts to get the district court judges to change their bond schedule that punishes undocumented aliens by increasing their bond beyond reason were unsuccessful I hope that with more voices speaking out against this policy we may yet change their minds

The bond for the jails was defeated Although I had initially spoken out against this bond at the Harris County Commissioners court I want to acknowledge that during the di scussions I had with the county officials who are in charge of the new programs and facilities for the mentally ill that I came away with a profound respect for the dedica tion and sincerity of the Sheriffs Department and county personnel in their efforts to handle the growing problems of the mentally ill in the county jail I will make a pledge to you all here and now that I will continue ro work with them and with the courts ro try and find new ways to humanely cope with the many tolks who are in the criminal justice system largely due to their own mental illness

The defeat of the jails means that we as a group must renew our efforts to try and find alternative less restrictive ways to permit the indigent and those who pose no danger ro get bond and in this part of my message I openly caU on the district court judges to re-visit their policies regarding personal recognizance bonds on felonies Over three thousand people sit in our Harris County Jail awaiting trial on felony charges and while certainly PR bonds may not be appropriate in some cases the statistics for the past several years show that the district courts effectively no longer grant PR bonds at all On average less than a half percent of those who are screened for such bonds are given them and this has directly contributed to the jail overcrowding that threatens the safety and the well- being of our c1iems not to mention that of the deputies who must work there It is well past time ro ask that tllis change and I am asking it now

Last we have as an organization put on some truly outstanding CLE and social events this year and we will continue to find ways to boost our members professional development and cement tlle fellowship that sustains us through the year My heartfelt tlunks go to the l30ard members who are so active in funding organizing and presenting these events and whose advice has guided me in this busy half year I am looking forward to next year and to tvery new challenge God keep YOll and your tdmily sate tllis season and my best to you all

THEDEFENDER] WINTER 07

Winning WARRIORS + Continuing her phenomenal streak KATHERINE SCARDINO scored yet another Not Guilty on a non-death capital murder in the 184th the issue was corroboration of accomplice witness testimony

+ KATHRYN KASE of the Texas Defender Service made the case for Death Row client Daniel Platas mental retardation resulting in findings of fact and conclusions of law that recommend his death sentence be set aside The 351 st District Courts recommendation must now pass muster with the Court of Criminal Appeals

+ Proving that he somehow finds time to practice law when he is not doing good works as HCCLA President PAT McCANN negotiated a 30-year plea for a Ft Bend County client in a case that was originally a death-penalty capital He and mitigation specialist PAM STITES submitted an extensive mitigation evidence that caused the State to waive death and agree to the lesser plea

+ A 3-justice panel of the Fourteenth Court of Appeals unanimously set aside the gag order imposed by Judge Devon Anderson in the Ashley Benton case thanks to BRIAN WICES briefing and oral argument In re Benton _ SW3d _ 2007 WL 3408971 (Tex App -- Houston [14th Dist] 111607)

+ JIM LAVINE received the 27th annual Robert C Heency Me1lUJ1Ud Award by the National Association of Criminal Defense Lawyers at the associations annual meeting in San Francisco on August 4 2007 This award is the most prestigious honor given by the NACDL and is conferred annually to one criminal defense attorney who personally and professionally best exemplifies the goals and values of the association and the legal profession

+ LANCE HAMM won a reversal and judgment of acquittal in a published opinion Sanchez v State _ SW3d _ No 01 -06-0021 O-CR (TexApp -- Houston [l st Dist] 2007) due to HPD chemist Joseph Chus inability to quantity the amount of Promethazine in the alleged controlled su bstance

+ Following almost three years of pretrial litigation the team of JAMES STAFFORD TOM STICKLER AIMEE SOLWAY and mitigation specialist NAOMI TERR convinced the Matagorda County DAs office to offer two life sentences on the capital murder and sexual assault of a young girl despite really bad facts

+ In what may be one of last cases of its kind MARK BENNETT and TYRONE MONCRIFFE persuaded a jury to recommend probation for both of their clients convicted of murder in the 339th District Court despite the prosecutors plea for 20 years SARAH WOOD and JEFF DOWNING assisted

+ After a 4-day trial in CCCL 14 the jury took less than 30 minutes to acquit CHRIS TRITICOS client of Class A assault CHRIS followed this performance with another Not Guilty the following week in CCCL 12

+ TAD NELSON hung the jury in the Galveston County trial of a bird watcher charged with felony animal cruclty for shooting a feral cat allegedly adopted by a tollbooth worker the case will not be retried according to prosecutors

+ Also in Galveston County JL CARPENTER got a Not Guilty for his client charged with indecency with a child in the 212th District Court

THE DEFENDER -(( 3

+ Even though his client hit a police car the jury found JIM BUTLERS client Not Guilty of OWl after the court gave him an instructed verdict on the twO drug paragraphs in CCCL 15

+ DAVID FLEISCHER heard Not Guilty in an assault trial in CCCL 7 on November 14 2007

+ JOANNE and EARL MUSICK hung the jury 11-1 10-2 and 10-2 for Not Guilty on three counts of indecency in the

180th District Court In October JOANNE and EARL along with AMANDA DOWNING got a Not Guilty on a family violence assault in CCCL 4 that had previously hung 5-1 for guilty

+ MARK THIESSEN celebrated his first jury trial with a Not Guilty on DWl in CCCL 11 on November 132007

+ In his first jury trial since retiring from the bench MIKE PETERS obtained an acquittal for his client charged with assault in CCCL 5

+ MARK KELLY won a Not Guilty on a OWl in CCCL 8 on November 92007

+ A good week in October for STEVE HALPERT started with the State dismissing a total refusal DWI in CCCL 4 as soon as the jury was seated He then picked up a Not Guilty on a no-test no accident OWl in CCCL 2 for his client who was stopped for speeding through a red light with a broken windshield [busted in the domestic fracas that began the evenings events] was uncooperative with 911 and had a bad

video to boor STEVE thanks TODD LEFFLER for his help on

voir dire CHUCK STANFIELD for two fine ALR transcripts and

TROY MCKINNEY and JIM MEDLEY for answering emergency in-trial questions It takes a village l

Two months earlier STEVE bested the Ft Bend County proseclltion when the jury awarded his client probation on a very tough aggravated sexual assault

+ KELLY CASE got a Not Guilty on a no test no accident OWl in CCCL 7

+ Two separate clients were spared trials when DAN GERSON and HENRY NGUYEN persuaded the grand jury to return noshybills on two cases of aggravated sexual assault of a child

+ The University of Houston School of Laws chapter of Phi

Alpha Delta honored WENDY MillER as Alumnus of the

Year on November 8 2007 WENDY is the third honoree she follows UH Law graduates John OQuinn and Robert Sohns in this recognition

+ A law and order jury in CCCL 13 only took 20-30

minutes [lunch included] to acquit SHANDON TONRYS client of assaulting her boyfriends brother despite the judgeS refusal to admit any evidence concerning the complainantS reputation for violence and prior history of violent behavior including a military discharge for being a danger to others The jury later opined that the case was a waste of time and

money SARAH WOOD assisted in voir dire and RANDALL KALLINEN and TOM lAKES offered help with last -minute questions

+ CHRISTOPHER CARLSON and JOHN FLOYD succeeded in getting their client no-billed for aggravated sexual assault of a child thanks to an extensive investigation packet and persistently pushing the prosecution

+ An alleged total whale for the State ended in an acquittal

for BRIAN WARREN on a family violence assault in CCCL 1 thanks to his masterful cross-examination of a gung ho cop and a complainant who wanted blood

+ TUCKER GRAVES scored a Not Guilty on a first-degree injury to a child in the 176th District Court

+ The highly publicized trial of former TSU president Priscilla

Slade ended in a 6-6 deadlock after a tireless effort by MIKE DEGEURIN and PAUL NUGENT The case is currently set for retrial in the spring of 2008

+ NORM SILVERMAN convinced the 232 nd District Court to grant a motion to suppress evidence seized under a stale warrant

+ A no-test no accident DWl charge led to a Not Guilty for

DOUG MURPHY in CCCL 7 on October 10 2007

+ PAUL DECUIR won a forfeiture action in the 183rd District Court after the Assistant Attorney General for the State of Texas testified that the DA s office cannot represent the state in such proceedings

THE DEFENDER 4

+ Two acquittals in a row for TODD OVERSTREET on a 14 OWl in CCCL 9 and a 14 OWl in CCCL 17 So much for the infallibility of the lntoxilyzer

+ ROBB CZAR FICKMAN won a no-bill for his client charged with aggravated assault for allegedly running over his [the clients] estranged wifes leg

+ Extensive trial preparation and consultation with experts

rewarded AMANDA DOWNING with a dismissal of injury to a child charges against her client in the 178 th District COllrt

+ Federal Public Defender BRENT NEWTON heard Not Guilry in Judge Hittners court when the jury believed his client over four police officers concerning the alleged violent struggle

+ BOB LOPER persuaded the jury to acquit his client of capital murder in the 228 th District Court and convict on the lesser of felony murder then assess punishment at 30 years in prison

+ Sweet victory fell to KENNETH MCCOY when the jury returned a Not Guilty on a murder case in the 232 nd District Court

+ Rebounding from the jurys convictjon of his client for

intoxication assault and intoxication manslaughter SAM CAMMACK scored the minimum probated sentences and a negative finding on the deadly weapon issue despite a prior OWl conviction

+ After MAC SECREST reversed a murder conviction with 45shy

year sentence DANNY EASTERLING [not the original lawyer] retried the case and ended up with a 20-year sentence on a manslaughter conviction saving his client 25 aggravated

years JOANNE MUSICK helped pick the jury

+ On a motion to quash the indictment JOSEPH R WILLIE obtained a hard-fought dismissal of aggravated perjury charges the Jackson County DA filed against his client simply because he was convicted after testifying in his own behalf [We assume that Jackson Counry is equally diligent in filing aggravated perjury charges against its own witnesses whenever an accused is acquitted]

+ DAVID KIAnA won an acquittal for his client in CCCL 7 on a DVl PCS charge and in the process earned compliments on his skill and professionalism from the prosecutor

+ Fast becoming the scourge ofthe Victoria County prosecution

TODD DUPONT scored two Not Guilry verdicts on aggravated assaults in the same day

+ JUANITA BARNER won an acquittal on interference with a 911 call in CCCL 2 even though the complainant was a Harris Counry deput) [albeit one who never wanted the charges to be filed and who had to be threatened with contempt to testi fy]

+ That same day Juanitas mentor VIVIAN KING secured a dismissal for her juvenile client charged with aggravated assault in the 313 th District Court

+ Following two days of deliberations and a defense-requested

Allen charge ALVIN NUNNERY walked off with a Not Guilty on a murder in the 35JSt District Court

+ A total refusal OWl brought a happy ending to NATHANIEL TARLOWS first jury trial in CCCL 11 after only 30 minutes

of deliberation NATHANIEL thanks TROY MCKINNEY and ROBB FICKMAN for all their guidance and ideas

+ First beating a capital charge down to straight murder at the

grand jury CHARLIE BROWN then brought it on horne with a Not Guilty at trial in the 185th District Court despite a surviving eye witness the jury actually credited the accuseds alibi

+ The jury took only a few minutes to return an acquittal on

a family violence assault case tried by JAMES ALSTON and

AMANDA WEBB

+ Being on parole and workjng repos would seem to be a

no-fail recipe for trouble but KYLE VANCE saved just such a client after he was accused of running over the complainant

with his wrecker during a repossession in San Jacinto County

JOANNE MUSICK rode shotgun

TIE DEFUIER ott I

+ JED SILVERMAN got a motion to suppress granted in CCCL 15 after the arresting sheriffs deputy testified that Everyone I pullover is under arrest at the time I Stop them then resisted the prosecutions desperate attempts to re-educate

him HENRY NGUYEN sat second

+ DAVID flEISCHER heard a two-word verdict in CCCL 14 on August 28 2007

+ PAULA SILVA and NEAL DAVIS won a Not Guilty on a DWl in CCCL 6

+ Having just substituted in four days before trial and been denied a continuance MARY GRACE RUDEN and TODD LEFflER staged a major coup in winning a felony DWI in the 228 th

District COllrt

+ Arguing that the 1 hour and 45 minute detention was unreasonable in its scope and unjustified for a mere speeding stop tainting any subsequent consent to search if any had

been given MEKISHA WALKER MURRAY succeeded in having the veapon eventually found under the hood of the car suppressed in the 182nd District Court

+ The Supreme Court of the United States effectively ended Harris Countys ongoing efforts to enshrine a neon-lit King James Bible on the grounds of the old civil courthouse by denying certiorari in KAJ Staley v Harris County Ms

Staley represented by RANDALL KALlINEN prevailed at every level of the proceedings and weathered various threats to her life and being hung in effigy by some in favor of Stateshysponsored religion

FUTURE WARRIORS

+ October was a good month for RICK SOLIZ beginning with his success in obtaining a downward departure that resulted in probation for his client charged with perjury in the Western

District of Texas - Midland Division RICK took advantage of being in Dubyas hometown to argue and brief what was

essentially a Scooter Libby situation RICK also obtained trial date dismissals in CCCL 2 for telephone harassment and CCCL 13 for assault He wrapped up with a jury hung 5 -1

for Not Guilty on criminal trespass in CCCL 1 O RICK credits the priceless advice he gets from HCCLA members

CONGRATULATIONS TO ALL THESE WINNING WARRIORS

MARCH MICHAEL flOOD 7 Ibs 2 oz joined proud parents Tyler and Aimee Flood and 2 -year-old big brother Senator on October 30 2007

Doug and Kelly Murphy welcomed ELLIOTT MARSHALL MURPHY 8 Ibs 5 oz on November 142007

Todd and Kay Dupont added another little beauty to their bevy of belles when AVA KATHLEEN DUPONT bowed in on November 20 2007 weighing 6 Ibs 4 oz

THE DEFENDER 6

THEDEFENDER] WINTER 07

APPELLATE COURT SHUFFLE ON JURY SHUFFLES

Judicial Voodoo ON

Who Do the Aski gBy Troy McKinney

IN TREJOS V STATE __ SW3d _ _ 2007 WL 1500276 (TEX APP -- HOUSTON [1 ST OIST] 2007 PET REF D) [NOT DESIGNATED

FOR PUBLICATION] DEFENDANT CHALLENGED THE TRIAL COURTS GRANTING OF A SHUFFlE REQUESTED BY THE STATE AFTER

THE TRIAL JUDGE HAD QUESTIONED THE PANEl BUT BEFORE THE STATE HAD BEGUN ASKING ANY QUESTIONS IN REJECTING THE

DEFENDANTS CLAIM OF ERROR IN GRANTING THE SHUFFlE REQUESTED BY THE STATE A PANEl CONSISTING OF JUSTICES TAFT

ALCALA AND HANKS CONCLUDED

In a non ~capital case as here a motion to shuffle is timely as long as the motion is

m de before the State actually starts questioning the jurors in its portion of the

oir dire DeLeon v State 731 SW2d 948949 (Tex Crim App 1987)

MUiams v State 719 SW2d 573 577 (Tex Crim App 1986)

8iJJardJess othe enotb or detail othe trial courrs questiom to the

pn1we panel in a non-capital we the lniDht-line rule is that the

nwtion to shuffle the venire is timely when it is nuuJe bifore the

State begins questioni1lJJ the potential jurors See WiUiams 719 SW2d at 577 (holding motion to shuffle venire timely

although for forty minutes the trial judge introduced

herself and made introductory remarks identified the

attorneys pointed out the appellant and his co~

defendant Raymond Jackson discussed the division

of offenses into felonies and misdemeanors gave

examples of felonies of the first second and

third degree and the applicable penalties

discussed capital murder and its penalties

and the high fines now available in

cases of drug trafficking read the

instant indictment to the panel

told them the offense was

formerly known as aggravated

rape discussed jury strikes

the order of trial the charge

jury deliberations verdicts and

referred to certain principles as

presumption of innocence burden

of proof reasonable doubt etc)

THE DEFENDER 1lt 7

both

The States motion to shuffle was timely in this non-capital case because it was made before the State began its voir dire

See DeLeon 731 SW2d at 949 WiUiams 719 SW2d at 577 We hold that the trial court did not err by granting

the States motion to shuffle the jury panel

Trejos at 4 (Emphasis added)

Of course this bright-line rule was no so bright when a citizen claimed that the trial court erred in declining to allow him a

jury shuffle under the same circumstances that is after the trial judge had questioned the jurors but before the Stdte begdn its

questioning of the panel In Railsback v State 1 95 SW3d 473 (Tex App -- Houston [l st Dist] 2002 pet refd) a panel

of the same court consisting of Justices Taft Radack and Alcala (two of the three justices who decided Trejos) held

We cond ude that because of the nature and circumstances of the of the voir dire proced ure in this case the tridl court

did not err in denying appellantS request for a jury shuffle on grounds of timeliness In Wdliams which held that

voir dire did not commence until the State had begun its examination the trial judge did not engage in a detailed

questioning of the panel WiUiams 719 SW2d at 574 The trial judge introduced herself introduced the parties dnd

their attorneys explained that there were divisions between offenses and that there were different penalties that could

be applicable read the indictment discussed how the trial would work and defined various legal terms that were used

during the course of a tridl ld The trial judge in WiUiams then asked 3 questions 1) whether anyone recognized

the names of the parties or knew the facts of the case 2) whether anyone had questions as to what the State would

have to prove and 3) ifanyone felt that they could nOt give a punishment within the range allowed by law Id Here

the trial court went well beyond the mere introductory remarks and

began asking questions of the venire members traditionally asked

by the State and a defendant during voir dire proceedings For

all intents and purposes voir dire in this case began when the

trial court began asking questions of the panel that were no

longer related to introductory and administrative matters

and would have traditionally been asked by the parties

themselves

The divergent views of the import of the decision in WiUiams and

the divergent views of the brightness of the alleged bright-line rule are

facially and irreconcilably inconsistent This might be understandable if

these decisions were from different courts or even from different justices

on the same court but they are not The majority of the justices on

panels (Justices Taft and Alcala) are identical Conspicuously Trejos does not

even mention much less reconcile Railsback

The only difference between these two cases is which side won The real rule from these cases is that judges may give the

State relief and deny it to a Defendant under legally identical circumstances and the appellate courts are unlike ly to provide any

relief when the Defendant complains of the error and the inconsistency The real rule from these cases is that appellate justices

will likely view prior cases in whatever way is necessary to affirm a conviction and it matters not that they have said something

different in prior years and cases

Inconsistent decisions just do nOt get much worse than these two decisions Maybe if we shine some light on these kinds of

judicial inconsistencies these bright-line rules will get applied equdlly in the future One can only hope though the past provides

little basis for validating the likelihood that such hope will become reality

W Troy McKinney is a shareholder in Schneider amp McKinney Pc He is one of three lawyers in Texas who is Board Certified in DWI

Defense by the National College for DUI Defense where he is a Regent McKinney is a past President of the HCClA He teaches

throughout the country_ is regularly published and is the coauthor of Texas Drunk Driving law (lexis 4th Ed) McKinney maintains an

active trial and appellate practice

THE DEFENDER -(( 8

THEDEFENDER] WINTER 07

IN LI GHT OF RECENT COURT DECISIONS AND THE ABA GUIDEliNES REGARDING THE IMPORTANC EOF DISCOVERING ALL REASONABLY

AVAILABLE MITIGATING EVIDENCE ON BEHALF OF ADEFENDANT CRIMINAL ATTORNEYS ARE FINDING IT ANECESSITY TO ENLIST

MITIGATION EXPERTS TO HElP AT THE VERY LEAST IN THE PUNISHMENT PHASE OF THEIR TRIALS

THE MITIGATION SPECIALIST It appears now that judges will expect a comprehensive and

reliable mental health evaluation to be conducted in not only

capital cases but in criminal felony cases as well Mitigation

speciJlists who have experience as well as graduate degrees

in Social Work or Psychology possess the skills insight and

abilities to complete sllch evaluations and interview defendants

and their significant others in such a way that they obtain

information the defendant and others may be unlikely to share

with the attorney They also have the expertise to uncover

and recognize mental illness or retardation that the client has

gone to great lengths to hide The specialistS interviewing

techniques might elicit sensitive or even humiliating evidence

that the defendant has never shared before Its obvious that

these defendants would not be where they are if they were

adequate communicators and had good relationship skills

Mitigation specialists can see beyond these deficits and get the

information required for a comprehensive defense Depraved

conduct does not develop out of thin air There are causes

and causes found lead to evidence in mitigation Counsel is

going to need a theory that will be effective in both the guilt

and penalty phases of the trial Your mitigation specialist can

help define that theory

THE DEFENDANTS BIOLOGY AND ENVIRONMENT When looking at what might constitute mitigation in capital

as well as felony cases attorneys can turn to mental health

practitioners to understand how dysfunctional human behavior

must have contributed to this mess in which the defendant

finds himself The male pronoun is appropriate because these

defendants are predominantly male However the theory

applies to women as well Their gender certainly doesnt

provide immunity from childhood abuse and neglect

THE DEFENDER -( B

It is common for the defendant to be a young male in

the range of 17 to 29 years of age and no one should be

surprised by this The background of young males raised

in poverty abuse and neglect fosters violence and emotional

immaturity These young men are chronologically of legal

age but emotionally they may be operating at much younger

developmental stages This is evidenced by their short attention

span their poor decision- making abilities their lack of awareness

of the basic rights and boundaries of others their explosive

entry into emotions and their tendency to blame others for

their problems - all of which can be documented by records

and interviews

Another telltale sign of emotional immaturity is their persistent

need to protect their abusers usually parents or grandparents

Some will even go so far as to be protective of former foster

parents Children (and psychologically these defendants are

still children) desperately want to make their caretakers seem

loving and caring They do this to avoid having to acknowledge

that those persons who were supposed to protect them actually

were the people they should have feared the most That level

of sel fish ness and lack of empathy in a caretaker is very hard

for a child to absorb The terror inherent in that knowledge

is unmanageable Blaming the adult is too painful Thats why

children take responsibility for things they couldnt possibly

have foreseen or caused or prevented When the time comes to

discuss with the defendant the mitigating reasons the attorneys

plan to use in his defense he may be very distrustful This is

when he must embrace the reality about his parents andor

caretakers The mitigation specialist can help him separate the

act of loving ones children from the job of parenting them

There is a widely recognized psychological theory that explains

human development over the life span and is taught as basic

theory to Psych 101 students It was framed by renowned

20th century psychoanalyst Erik Erikson (1902-1994) This

theory divides the life span into stages and attributes a specific

developmental task to each stage The tasks required for healthy

development through childhood and early adolescence include

trust autonomy initiative identity and individuality When

one or more of these tasks are not successfully accomplished

in one stage the child continues to grow chronologically but

his emotional development is damaged In the case of severe

abuse andor neglect its very common for more than one

developmental stage to be derailed Abuse that begins early

in childhood such as in infancy damages the childs ability to

discern empathy A toddler (age 2-4) is famous for imitation

If the toddlers caretakers are smoking dope and never leave

the sofa except to hit each other or conduct a drug sale the

jury needs to appreciate what they would have imitated Four

to six year olds are developing a moral compass self-es teem

and a sense of group interaction If the jury hears that the

defendant was left alone for long periods of time during his

childhood they can recognize how the defendants sense of

self became profoundly skewed Six- to twelve-year- olds are

focused on skill building and concrete operations - things

they wont learn if they are not attending school regularly

or able to absorb whats being taught Early adolescence (up

to age 18) is famous for peer pressure and the need to lit in

vith same age peers If the only examples of peer relationships

documented in their caretakers and in their neighborhoods are

gang members criminal associations or tricks the jury will

empathize vith their choice of fiiends Later adolescence (up

to age 22-25) involves identity formation The good news here

lies in their emotional immaturity Many of these young men are

still stuck in a chronologically inappropriate developmental stage

Therefore their identity is still up for grabs The jury must hear

that intervention at this stage can truly be life changing

There are so many young men from abusive poverty stricken

neglectful family systems about whom one might say There

but for the grace of God go 1 Its probably true that none

of us gets out of childhood without a scratch Everyone enters

adulthood Jacking something because no parents are capable of

doing their job perfectly However the problems commonly

seen in criminal defendants usually stem from more bad luck

than one person ought to experience Psychological theory

indicates that development is a product of inherited factors life

experiences personal choices societal expectations and chance

These defendants are victims of thei r biology and genealogy

Unfortunately for them these are tllings over which they have no

control The jury wiU value hearing what the defendant was exposed

to in his childhood Heres a ust of the most common things

Drug addicted caretakers

Drug dealing caretakers

Prostiultion as a career choice in caretakers

Criminal activity used as a means to pay the bills

Mental illness andor acute emotional disturbance

in caretakers

Severe poverty

Lack of supervision

Sporadic school attendance

Frequent changes in caretakers

Whereabouts of biological parents unknown

Physical abuse of self andor siblings

Sexual abuse of self andor siblings

Numerous changes in residence

The jury would certainly have been moved to hear that while

working at Childrens Protective Services I had a case in

which an elementary school aged child came home to find his

familys apartment empty His mother failed to mention she

was moving that day True story

DISEASE ANDOR INJURY The mitigation specialistS research into a defendants

medical history may reveal injury or disease that the medical

establishment readily acknowledges causes some degree of

neurological damage or disturbance The injury may in fact

have been caused by physical andor sexual abuse of the

child Testimony regarding this history from a medical expert

can be gripping to the jury and give even just one member

justification for lenience

THERE ARE SO MANY YOUNG MEN FROM

ABUSIVE POVERTY STRICKEN NEGLECTFUL

FAMILY SYSTEMS ABOUT WHOM ONE MIGHT

SAY THERE BUT FOR THE GRACE OF GOD GO

I ITS PROBABLY TRUE THAT NONE OF US GETS

OUT OF CHILDHOOD WITHOUT A SCRATCH

THE DEFENDER 1lt 11

THE MOST COMMON ADULT DIAGNOSES FOUND IN THESE DEFENDANTS INCLUDE

MOOD DISORDERS (DEPRESSION ANXIETY ETC) POST TRAUMATIC STRESS

DISORDER AND DISSOCIATIVE ADJUSTMENT AND PERSONALITY DISORDERS

SUBSTANCE ABUSE AND DEPENDENCE Drug abuse and dependence can also explain what mitigates

rhe defendants criminal actions The most commonly abused

drugs include alcohol stimulants marijuana and opioids

Whar follows are some basic details of what the jury probably

doesnt know about the effects of these commonly used

drugs

1 ALCOHOL Alcohol affects practically every organ in the body and alters

the activity of most major neurochemicals It produces a dose

dependent decrease in cognitive and motor functioning As Blood Alcohol Concentration (BAC) rises the impairment increases People rarely look obviously intoxicated at BAC

levels that produce impairment One of the most pronounced

effects of alcohol is on divided attention tasks

2 STIMULANTS It is well known that tolerance to stimulants develops rapidly

Evidence exists that prolonged use of stimulants seems to

bring about sustained neurophysiologic change in the brain This physical damage to the cells of the brain actually affects

how the brain functions Chronic use can produce toxic

psychosis characterized by confused disorganized behavior

paranoia hallucinations and delusions

3 MARIJUANA Short-term memory and the ability to make emergency

decisions are greatly impaired by marijuana use Impairment

of coordination judgment and perception of time can last

well past the feeling of being high produced by marijuana

Impairment of cognitive functions such as judgment and

problem solving can lead to poor decision-making with regard

to present and future outcomes

40PIOIDS Opioids are distributed throughout the body including the central nervous system where they have a psychoactive effect

The primary use of opioids is as an analgesic - a pain reliever The bio-behavioral effects include respiratory depression nausea impaired memory and attention There may be little or no observable impairment in someone intoxicated on opiates

THE DEFENDER 12

SElECTING EXPERT WITNESSES The mitigation specialist works with counsel to develop rhe

explanarion rhat will demonstrate and support rhe diagnosis

presented in court by the Expert Witness Their research

underscores the fact that abuse and neglect contribute to

psychological and mental disorders This constitutes a basis

for minimizing ones culpability in high stress situations such

as the commission ofa violent crime The most common adult

diagnoses found in these defendants include Mood Disorders

(depression anxiety etc) Post Traumatic Stress Disorder and

Dissociative Adjustment and Personality Disorders Research

into their history often uncovers previous childhood diagnoses

ofAttention Deficit Hyperactivity Disorder Conduct Disorder

Oppositional Defiant Disorder and learning disabilities as

well Of course its common to find a history of physical

and sexual abuse of rhe defendant andor his siblings What

the jury needs to hear is that these conditions could often

be improved with counseling and a structured environment

Time and again efforts at intervention have been made by

Childrens Protective Services Texas Youth Commission or

other agencies Often services have been offered or even put

in place However the services may not have been sought out

followed through on or completed by the caretakers Many

times there is clear evidence of a Treatment Plan having

been developed that was never implemented by the caregivers

(who had their own deficits) or by the agency staff charged

with insuring that the services were delivered This is another

situation over which the defendant had no control as a child

This information supports a case for leniency and needs to be

shared with the jury

To gather the information needed to chronicle the

developmental problems in a defendants childhood the

mitigation specialist uses interviews with him family members

willing to make themselves available and records such as

Childrens Protective Services Texas Youth Commission

Texas Department of Criminal Justice school districts and

whatever else can be found Its not uncommon for records

collection to extend to other states or even other countries

Its important to go back and look at the specific details of

charges made against the defendant especially in juvenile

situations The events may actually be a lot less offensive

than they are made to sound Picture a defendant who at

age 10 has been charged in a juvenile case with assaulting a

police officer who was trying to take him into custody When

looking at the narratives describing the situation from the

CPS perspective the explanation was right there in black and

white He didnt know where the police were taking him

He watched other officers take two of his siblings inside a

building and they didnt come out He kept saying he wanted

to go home What he didnt know was that his parents had

already refused to come and get them It is imperative that the

jury hear such a story

The mitigation specialist is helpful in bringing the Expert

Witness and the evidence together Their mental health

background will be particularly significant in helping counsel

decide who the best experts will be Your mitigation specialist

can help find experts who are willing and able to testify to only

what the defense needs and not be inclined to take control of

the situation

Armed with all of the information obtained by the mitigation

specialist the attorney has a variety of options regarding how

to use the information The attorney can use it to

Seek a plea agreement

Select a jury sensitive to the issues relative to the case

Elicit supportjve testimony during cross examination of

witnesses

Present a compelling story at punishment phase

In the effort to find a settlement certainly attorneys dont

want to unnecessarily reveal details of mitigation evidence

before trial However the duty to seek a plea for life must be

at the center of the defense teams goals in capital cases That

evidence will come trom your mitigation specialists research

With the decision in Miller vs Dretke mitigation is becoming

important in all felony cases Familiarize yourself with

mitigation specialists

THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT

MITIGATION IS NOT AN EXCUSE ITS AN EXPLANATION

E

THE DEFENDER 13

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

HCClA ~~~~~~~ PRESIDENT Patrick f McCann

PRESIDENT ELECT Mark Bennett

VICE PRESIDENT JoAnne Musick

SECRETARY Nicole DeBorde

TREASURER Steven H Halpert

PAST PRESIDENT Robert J fickman

BOARD OF DIRECTORS Thomas Berg Neal Davis Christopher Downey Todd DuPont II Tyler flood Tucker Groves Mark Hochgloube Rondoll Kollinen feroz Merchont Morjorie Meyers fori D Musick John Parros Robert A Scardino Chorles StanPield Amanda Webb O Tate Williams

PAST PRESIDENTS 1971-2008 C Anthony friloux Stuart Kinard George Luquette Morvin O Teogue Dick DeGuerin WB House Jr David R Bires Woody Densen Will Gray fdword A Mollett Carolyn Garcio Jock B Zimmermann Clyde Willioms Robert Pelton Condelorio flizondo Allen C Isbell Dovid Mitcham Jim L Lovine Rick Bross Mary f Conn Kent A SchoPPer Don Cogdell Jim Skeltan George J Pornhom Garland D MCinnis Robert A Moen lloyd Oliver Donny fosterling Woyne Hill Richord fronkoPP W Troy McKinney Cynthia Henley Stanley G Schneider Wendell A Ddom Jr

2007-2008

~~~ 1f~~ PRESIDENT By Patrick F McCann

Friends

I want ro wish each and everyone of you a warm and happy holid ay As this calendar year draws to a close I wanted to express my thanks and appreciation tor your help and

suppOrt during the first half of my year serving as your President

It has been busy Rarely docs a lavyer get ro sign three different grievances against three different judges in a lifetime let alone a six month period Yet I promised that your voice would be heard and when together we said Enough to the callous disrespect to lawyers and to clients shown by some judges it made headlines across the state and the nation I met with the U S Attorney and expressed our hope that they will continue to vigorously pursue bad cops via civil rights prosecution and that they would in light of the recent Tyrone Williams case reshyconsider their efforts on death cases I had the privilege of testifying at the state legislative hearings on the HPD lab scandal and having the HCCLA point of view put out in the Chronicle oped pages so the public could understand why this issue is so important

I have also as I promised joined both the Mexican American l3ar Association of Houston and the Housron Lawyers Association as this goes to press I urge all of you to consider reaching out to these organizations and encouraging their members to join us to speak our against unfair treatment of any person regardless of race creed color religion or orientation Although my initial attempts to get the district court judges to change their bond schedule that punishes undocumented aliens by increasing their bond beyond reason were unsuccessful I hope that with more voices speaking out against this policy we may yet change their minds

The bond for the jails was defeated Although I had initially spoken out against this bond at the Harris County Commissioners court I want to acknowledge that during the di scussions I had with the county officials who are in charge of the new programs and facilities for the mentally ill that I came away with a profound respect for the dedica tion and sincerity of the Sheriffs Department and county personnel in their efforts to handle the growing problems of the mentally ill in the county jail I will make a pledge to you all here and now that I will continue ro work with them and with the courts ro try and find new ways to humanely cope with the many tolks who are in the criminal justice system largely due to their own mental illness

The defeat of the jails means that we as a group must renew our efforts to try and find alternative less restrictive ways to permit the indigent and those who pose no danger ro get bond and in this part of my message I openly caU on the district court judges to re-visit their policies regarding personal recognizance bonds on felonies Over three thousand people sit in our Harris County Jail awaiting trial on felony charges and while certainly PR bonds may not be appropriate in some cases the statistics for the past several years show that the district courts effectively no longer grant PR bonds at all On average less than a half percent of those who are screened for such bonds are given them and this has directly contributed to the jail overcrowding that threatens the safety and the well- being of our c1iems not to mention that of the deputies who must work there It is well past time ro ask that tllis change and I am asking it now

Last we have as an organization put on some truly outstanding CLE and social events this year and we will continue to find ways to boost our members professional development and cement tlle fellowship that sustains us through the year My heartfelt tlunks go to the l30ard members who are so active in funding organizing and presenting these events and whose advice has guided me in this busy half year I am looking forward to next year and to tvery new challenge God keep YOll and your tdmily sate tllis season and my best to you all

THEDEFENDER] WINTER 07

Winning WARRIORS + Continuing her phenomenal streak KATHERINE SCARDINO scored yet another Not Guilty on a non-death capital murder in the 184th the issue was corroboration of accomplice witness testimony

+ KATHRYN KASE of the Texas Defender Service made the case for Death Row client Daniel Platas mental retardation resulting in findings of fact and conclusions of law that recommend his death sentence be set aside The 351 st District Courts recommendation must now pass muster with the Court of Criminal Appeals

+ Proving that he somehow finds time to practice law when he is not doing good works as HCCLA President PAT McCANN negotiated a 30-year plea for a Ft Bend County client in a case that was originally a death-penalty capital He and mitigation specialist PAM STITES submitted an extensive mitigation evidence that caused the State to waive death and agree to the lesser plea

+ A 3-justice panel of the Fourteenth Court of Appeals unanimously set aside the gag order imposed by Judge Devon Anderson in the Ashley Benton case thanks to BRIAN WICES briefing and oral argument In re Benton _ SW3d _ 2007 WL 3408971 (Tex App -- Houston [14th Dist] 111607)

+ JIM LAVINE received the 27th annual Robert C Heency Me1lUJ1Ud Award by the National Association of Criminal Defense Lawyers at the associations annual meeting in San Francisco on August 4 2007 This award is the most prestigious honor given by the NACDL and is conferred annually to one criminal defense attorney who personally and professionally best exemplifies the goals and values of the association and the legal profession

+ LANCE HAMM won a reversal and judgment of acquittal in a published opinion Sanchez v State _ SW3d _ No 01 -06-0021 O-CR (TexApp -- Houston [l st Dist] 2007) due to HPD chemist Joseph Chus inability to quantity the amount of Promethazine in the alleged controlled su bstance

+ Following almost three years of pretrial litigation the team of JAMES STAFFORD TOM STICKLER AIMEE SOLWAY and mitigation specialist NAOMI TERR convinced the Matagorda County DAs office to offer two life sentences on the capital murder and sexual assault of a young girl despite really bad facts

+ In what may be one of last cases of its kind MARK BENNETT and TYRONE MONCRIFFE persuaded a jury to recommend probation for both of their clients convicted of murder in the 339th District Court despite the prosecutors plea for 20 years SARAH WOOD and JEFF DOWNING assisted

+ After a 4-day trial in CCCL 14 the jury took less than 30 minutes to acquit CHRIS TRITICOS client of Class A assault CHRIS followed this performance with another Not Guilty the following week in CCCL 12

+ TAD NELSON hung the jury in the Galveston County trial of a bird watcher charged with felony animal cruclty for shooting a feral cat allegedly adopted by a tollbooth worker the case will not be retried according to prosecutors

+ Also in Galveston County JL CARPENTER got a Not Guilty for his client charged with indecency with a child in the 212th District Court

THE DEFENDER -(( 3

+ Even though his client hit a police car the jury found JIM BUTLERS client Not Guilty of OWl after the court gave him an instructed verdict on the twO drug paragraphs in CCCL 15

+ DAVID FLEISCHER heard Not Guilty in an assault trial in CCCL 7 on November 14 2007

+ JOANNE and EARL MUSICK hung the jury 11-1 10-2 and 10-2 for Not Guilty on three counts of indecency in the

180th District Court In October JOANNE and EARL along with AMANDA DOWNING got a Not Guilty on a family violence assault in CCCL 4 that had previously hung 5-1 for guilty

+ MARK THIESSEN celebrated his first jury trial with a Not Guilty on DWl in CCCL 11 on November 132007

+ In his first jury trial since retiring from the bench MIKE PETERS obtained an acquittal for his client charged with assault in CCCL 5

+ MARK KELLY won a Not Guilty on a OWl in CCCL 8 on November 92007

+ A good week in October for STEVE HALPERT started with the State dismissing a total refusal DWI in CCCL 4 as soon as the jury was seated He then picked up a Not Guilty on a no-test no accident OWl in CCCL 2 for his client who was stopped for speeding through a red light with a broken windshield [busted in the domestic fracas that began the evenings events] was uncooperative with 911 and had a bad

video to boor STEVE thanks TODD LEFFLER for his help on

voir dire CHUCK STANFIELD for two fine ALR transcripts and

TROY MCKINNEY and JIM MEDLEY for answering emergency in-trial questions It takes a village l

Two months earlier STEVE bested the Ft Bend County proseclltion when the jury awarded his client probation on a very tough aggravated sexual assault

+ KELLY CASE got a Not Guilty on a no test no accident OWl in CCCL 7

+ Two separate clients were spared trials when DAN GERSON and HENRY NGUYEN persuaded the grand jury to return noshybills on two cases of aggravated sexual assault of a child

+ The University of Houston School of Laws chapter of Phi

Alpha Delta honored WENDY MillER as Alumnus of the

Year on November 8 2007 WENDY is the third honoree she follows UH Law graduates John OQuinn and Robert Sohns in this recognition

+ A law and order jury in CCCL 13 only took 20-30

minutes [lunch included] to acquit SHANDON TONRYS client of assaulting her boyfriends brother despite the judgeS refusal to admit any evidence concerning the complainantS reputation for violence and prior history of violent behavior including a military discharge for being a danger to others The jury later opined that the case was a waste of time and

money SARAH WOOD assisted in voir dire and RANDALL KALLINEN and TOM lAKES offered help with last -minute questions

+ CHRISTOPHER CARLSON and JOHN FLOYD succeeded in getting their client no-billed for aggravated sexual assault of a child thanks to an extensive investigation packet and persistently pushing the prosecution

+ An alleged total whale for the State ended in an acquittal

for BRIAN WARREN on a family violence assault in CCCL 1 thanks to his masterful cross-examination of a gung ho cop and a complainant who wanted blood

+ TUCKER GRAVES scored a Not Guilty on a first-degree injury to a child in the 176th District Court

+ The highly publicized trial of former TSU president Priscilla

Slade ended in a 6-6 deadlock after a tireless effort by MIKE DEGEURIN and PAUL NUGENT The case is currently set for retrial in the spring of 2008

+ NORM SILVERMAN convinced the 232 nd District Court to grant a motion to suppress evidence seized under a stale warrant

+ A no-test no accident DWl charge led to a Not Guilty for

DOUG MURPHY in CCCL 7 on October 10 2007

+ PAUL DECUIR won a forfeiture action in the 183rd District Court after the Assistant Attorney General for the State of Texas testified that the DA s office cannot represent the state in such proceedings

THE DEFENDER 4

+ Two acquittals in a row for TODD OVERSTREET on a 14 OWl in CCCL 9 and a 14 OWl in CCCL 17 So much for the infallibility of the lntoxilyzer

+ ROBB CZAR FICKMAN won a no-bill for his client charged with aggravated assault for allegedly running over his [the clients] estranged wifes leg

+ Extensive trial preparation and consultation with experts

rewarded AMANDA DOWNING with a dismissal of injury to a child charges against her client in the 178 th District COllrt

+ Federal Public Defender BRENT NEWTON heard Not Guilry in Judge Hittners court when the jury believed his client over four police officers concerning the alleged violent struggle

+ BOB LOPER persuaded the jury to acquit his client of capital murder in the 228 th District Court and convict on the lesser of felony murder then assess punishment at 30 years in prison

+ Sweet victory fell to KENNETH MCCOY when the jury returned a Not Guilty on a murder case in the 232 nd District Court

+ Rebounding from the jurys convictjon of his client for

intoxication assault and intoxication manslaughter SAM CAMMACK scored the minimum probated sentences and a negative finding on the deadly weapon issue despite a prior OWl conviction

+ After MAC SECREST reversed a murder conviction with 45shy

year sentence DANNY EASTERLING [not the original lawyer] retried the case and ended up with a 20-year sentence on a manslaughter conviction saving his client 25 aggravated

years JOANNE MUSICK helped pick the jury

+ On a motion to quash the indictment JOSEPH R WILLIE obtained a hard-fought dismissal of aggravated perjury charges the Jackson County DA filed against his client simply because he was convicted after testifying in his own behalf [We assume that Jackson Counry is equally diligent in filing aggravated perjury charges against its own witnesses whenever an accused is acquitted]

+ DAVID KIAnA won an acquittal for his client in CCCL 7 on a DVl PCS charge and in the process earned compliments on his skill and professionalism from the prosecutor

+ Fast becoming the scourge ofthe Victoria County prosecution

TODD DUPONT scored two Not Guilry verdicts on aggravated assaults in the same day

+ JUANITA BARNER won an acquittal on interference with a 911 call in CCCL 2 even though the complainant was a Harris Counry deput) [albeit one who never wanted the charges to be filed and who had to be threatened with contempt to testi fy]

+ That same day Juanitas mentor VIVIAN KING secured a dismissal for her juvenile client charged with aggravated assault in the 313 th District Court

+ Following two days of deliberations and a defense-requested

Allen charge ALVIN NUNNERY walked off with a Not Guilty on a murder in the 35JSt District Court

+ A total refusal OWl brought a happy ending to NATHANIEL TARLOWS first jury trial in CCCL 11 after only 30 minutes

of deliberation NATHANIEL thanks TROY MCKINNEY and ROBB FICKMAN for all their guidance and ideas

+ First beating a capital charge down to straight murder at the

grand jury CHARLIE BROWN then brought it on horne with a Not Guilty at trial in the 185th District Court despite a surviving eye witness the jury actually credited the accuseds alibi

+ The jury took only a few minutes to return an acquittal on

a family violence assault case tried by JAMES ALSTON and

AMANDA WEBB

+ Being on parole and workjng repos would seem to be a

no-fail recipe for trouble but KYLE VANCE saved just such a client after he was accused of running over the complainant

with his wrecker during a repossession in San Jacinto County

JOANNE MUSICK rode shotgun

TIE DEFUIER ott I

+ JED SILVERMAN got a motion to suppress granted in CCCL 15 after the arresting sheriffs deputy testified that Everyone I pullover is under arrest at the time I Stop them then resisted the prosecutions desperate attempts to re-educate

him HENRY NGUYEN sat second

+ DAVID flEISCHER heard a two-word verdict in CCCL 14 on August 28 2007

+ PAULA SILVA and NEAL DAVIS won a Not Guilty on a DWl in CCCL 6

+ Having just substituted in four days before trial and been denied a continuance MARY GRACE RUDEN and TODD LEFflER staged a major coup in winning a felony DWI in the 228 th

District COllrt

+ Arguing that the 1 hour and 45 minute detention was unreasonable in its scope and unjustified for a mere speeding stop tainting any subsequent consent to search if any had

been given MEKISHA WALKER MURRAY succeeded in having the veapon eventually found under the hood of the car suppressed in the 182nd District Court

+ The Supreme Court of the United States effectively ended Harris Countys ongoing efforts to enshrine a neon-lit King James Bible on the grounds of the old civil courthouse by denying certiorari in KAJ Staley v Harris County Ms

Staley represented by RANDALL KALlINEN prevailed at every level of the proceedings and weathered various threats to her life and being hung in effigy by some in favor of Stateshysponsored religion

FUTURE WARRIORS

+ October was a good month for RICK SOLIZ beginning with his success in obtaining a downward departure that resulted in probation for his client charged with perjury in the Western

District of Texas - Midland Division RICK took advantage of being in Dubyas hometown to argue and brief what was

essentially a Scooter Libby situation RICK also obtained trial date dismissals in CCCL 2 for telephone harassment and CCCL 13 for assault He wrapped up with a jury hung 5 -1

for Not Guilty on criminal trespass in CCCL 1 O RICK credits the priceless advice he gets from HCCLA members

CONGRATULATIONS TO ALL THESE WINNING WARRIORS

MARCH MICHAEL flOOD 7 Ibs 2 oz joined proud parents Tyler and Aimee Flood and 2 -year-old big brother Senator on October 30 2007

Doug and Kelly Murphy welcomed ELLIOTT MARSHALL MURPHY 8 Ibs 5 oz on November 142007

Todd and Kay Dupont added another little beauty to their bevy of belles when AVA KATHLEEN DUPONT bowed in on November 20 2007 weighing 6 Ibs 4 oz

THE DEFENDER 6

THEDEFENDER] WINTER 07

APPELLATE COURT SHUFFLE ON JURY SHUFFLES

Judicial Voodoo ON

Who Do the Aski gBy Troy McKinney

IN TREJOS V STATE __ SW3d _ _ 2007 WL 1500276 (TEX APP -- HOUSTON [1 ST OIST] 2007 PET REF D) [NOT DESIGNATED

FOR PUBLICATION] DEFENDANT CHALLENGED THE TRIAL COURTS GRANTING OF A SHUFFlE REQUESTED BY THE STATE AFTER

THE TRIAL JUDGE HAD QUESTIONED THE PANEl BUT BEFORE THE STATE HAD BEGUN ASKING ANY QUESTIONS IN REJECTING THE

DEFENDANTS CLAIM OF ERROR IN GRANTING THE SHUFFlE REQUESTED BY THE STATE A PANEl CONSISTING OF JUSTICES TAFT

ALCALA AND HANKS CONCLUDED

In a non ~capital case as here a motion to shuffle is timely as long as the motion is

m de before the State actually starts questioning the jurors in its portion of the

oir dire DeLeon v State 731 SW2d 948949 (Tex Crim App 1987)

MUiams v State 719 SW2d 573 577 (Tex Crim App 1986)

8iJJardJess othe enotb or detail othe trial courrs questiom to the

pn1we panel in a non-capital we the lniDht-line rule is that the

nwtion to shuffle the venire is timely when it is nuuJe bifore the

State begins questioni1lJJ the potential jurors See WiUiams 719 SW2d at 577 (holding motion to shuffle venire timely

although for forty minutes the trial judge introduced

herself and made introductory remarks identified the

attorneys pointed out the appellant and his co~

defendant Raymond Jackson discussed the division

of offenses into felonies and misdemeanors gave

examples of felonies of the first second and

third degree and the applicable penalties

discussed capital murder and its penalties

and the high fines now available in

cases of drug trafficking read the

instant indictment to the panel

told them the offense was

formerly known as aggravated

rape discussed jury strikes

the order of trial the charge

jury deliberations verdicts and

referred to certain principles as

presumption of innocence burden

of proof reasonable doubt etc)

THE DEFENDER 1lt 7

both

The States motion to shuffle was timely in this non-capital case because it was made before the State began its voir dire

See DeLeon 731 SW2d at 949 WiUiams 719 SW2d at 577 We hold that the trial court did not err by granting

the States motion to shuffle the jury panel

Trejos at 4 (Emphasis added)

Of course this bright-line rule was no so bright when a citizen claimed that the trial court erred in declining to allow him a

jury shuffle under the same circumstances that is after the trial judge had questioned the jurors but before the Stdte begdn its

questioning of the panel In Railsback v State 1 95 SW3d 473 (Tex App -- Houston [l st Dist] 2002 pet refd) a panel

of the same court consisting of Justices Taft Radack and Alcala (two of the three justices who decided Trejos) held

We cond ude that because of the nature and circumstances of the of the voir dire proced ure in this case the tridl court

did not err in denying appellantS request for a jury shuffle on grounds of timeliness In Wdliams which held that

voir dire did not commence until the State had begun its examination the trial judge did not engage in a detailed

questioning of the panel WiUiams 719 SW2d at 574 The trial judge introduced herself introduced the parties dnd

their attorneys explained that there were divisions between offenses and that there were different penalties that could

be applicable read the indictment discussed how the trial would work and defined various legal terms that were used

during the course of a tridl ld The trial judge in WiUiams then asked 3 questions 1) whether anyone recognized

the names of the parties or knew the facts of the case 2) whether anyone had questions as to what the State would

have to prove and 3) ifanyone felt that they could nOt give a punishment within the range allowed by law Id Here

the trial court went well beyond the mere introductory remarks and

began asking questions of the venire members traditionally asked

by the State and a defendant during voir dire proceedings For

all intents and purposes voir dire in this case began when the

trial court began asking questions of the panel that were no

longer related to introductory and administrative matters

and would have traditionally been asked by the parties

themselves

The divergent views of the import of the decision in WiUiams and

the divergent views of the brightness of the alleged bright-line rule are

facially and irreconcilably inconsistent This might be understandable if

these decisions were from different courts or even from different justices

on the same court but they are not The majority of the justices on

panels (Justices Taft and Alcala) are identical Conspicuously Trejos does not

even mention much less reconcile Railsback

The only difference between these two cases is which side won The real rule from these cases is that judges may give the

State relief and deny it to a Defendant under legally identical circumstances and the appellate courts are unlike ly to provide any

relief when the Defendant complains of the error and the inconsistency The real rule from these cases is that appellate justices

will likely view prior cases in whatever way is necessary to affirm a conviction and it matters not that they have said something

different in prior years and cases

Inconsistent decisions just do nOt get much worse than these two decisions Maybe if we shine some light on these kinds of

judicial inconsistencies these bright-line rules will get applied equdlly in the future One can only hope though the past provides

little basis for validating the likelihood that such hope will become reality

W Troy McKinney is a shareholder in Schneider amp McKinney Pc He is one of three lawyers in Texas who is Board Certified in DWI

Defense by the National College for DUI Defense where he is a Regent McKinney is a past President of the HCClA He teaches

throughout the country_ is regularly published and is the coauthor of Texas Drunk Driving law (lexis 4th Ed) McKinney maintains an

active trial and appellate practice

THE DEFENDER -(( 8

THEDEFENDER] WINTER 07

IN LI GHT OF RECENT COURT DECISIONS AND THE ABA GUIDEliNES REGARDING THE IMPORTANC EOF DISCOVERING ALL REASONABLY

AVAILABLE MITIGATING EVIDENCE ON BEHALF OF ADEFENDANT CRIMINAL ATTORNEYS ARE FINDING IT ANECESSITY TO ENLIST

MITIGATION EXPERTS TO HElP AT THE VERY LEAST IN THE PUNISHMENT PHASE OF THEIR TRIALS

THE MITIGATION SPECIALIST It appears now that judges will expect a comprehensive and

reliable mental health evaluation to be conducted in not only

capital cases but in criminal felony cases as well Mitigation

speciJlists who have experience as well as graduate degrees

in Social Work or Psychology possess the skills insight and

abilities to complete sllch evaluations and interview defendants

and their significant others in such a way that they obtain

information the defendant and others may be unlikely to share

with the attorney They also have the expertise to uncover

and recognize mental illness or retardation that the client has

gone to great lengths to hide The specialistS interviewing

techniques might elicit sensitive or even humiliating evidence

that the defendant has never shared before Its obvious that

these defendants would not be where they are if they were

adequate communicators and had good relationship skills

Mitigation specialists can see beyond these deficits and get the

information required for a comprehensive defense Depraved

conduct does not develop out of thin air There are causes

and causes found lead to evidence in mitigation Counsel is

going to need a theory that will be effective in both the guilt

and penalty phases of the trial Your mitigation specialist can

help define that theory

THE DEFENDANTS BIOLOGY AND ENVIRONMENT When looking at what might constitute mitigation in capital

as well as felony cases attorneys can turn to mental health

practitioners to understand how dysfunctional human behavior

must have contributed to this mess in which the defendant

finds himself The male pronoun is appropriate because these

defendants are predominantly male However the theory

applies to women as well Their gender certainly doesnt

provide immunity from childhood abuse and neglect

THE DEFENDER -( B

It is common for the defendant to be a young male in

the range of 17 to 29 years of age and no one should be

surprised by this The background of young males raised

in poverty abuse and neglect fosters violence and emotional

immaturity These young men are chronologically of legal

age but emotionally they may be operating at much younger

developmental stages This is evidenced by their short attention

span their poor decision- making abilities their lack of awareness

of the basic rights and boundaries of others their explosive

entry into emotions and their tendency to blame others for

their problems - all of which can be documented by records

and interviews

Another telltale sign of emotional immaturity is their persistent

need to protect their abusers usually parents or grandparents

Some will even go so far as to be protective of former foster

parents Children (and psychologically these defendants are

still children) desperately want to make their caretakers seem

loving and caring They do this to avoid having to acknowledge

that those persons who were supposed to protect them actually

were the people they should have feared the most That level

of sel fish ness and lack of empathy in a caretaker is very hard

for a child to absorb The terror inherent in that knowledge

is unmanageable Blaming the adult is too painful Thats why

children take responsibility for things they couldnt possibly

have foreseen or caused or prevented When the time comes to

discuss with the defendant the mitigating reasons the attorneys

plan to use in his defense he may be very distrustful This is

when he must embrace the reality about his parents andor

caretakers The mitigation specialist can help him separate the

act of loving ones children from the job of parenting them

There is a widely recognized psychological theory that explains

human development over the life span and is taught as basic

theory to Psych 101 students It was framed by renowned

20th century psychoanalyst Erik Erikson (1902-1994) This

theory divides the life span into stages and attributes a specific

developmental task to each stage The tasks required for healthy

development through childhood and early adolescence include

trust autonomy initiative identity and individuality When

one or more of these tasks are not successfully accomplished

in one stage the child continues to grow chronologically but

his emotional development is damaged In the case of severe

abuse andor neglect its very common for more than one

developmental stage to be derailed Abuse that begins early

in childhood such as in infancy damages the childs ability to

discern empathy A toddler (age 2-4) is famous for imitation

If the toddlers caretakers are smoking dope and never leave

the sofa except to hit each other or conduct a drug sale the

jury needs to appreciate what they would have imitated Four

to six year olds are developing a moral compass self-es teem

and a sense of group interaction If the jury hears that the

defendant was left alone for long periods of time during his

childhood they can recognize how the defendants sense of

self became profoundly skewed Six- to twelve-year- olds are

focused on skill building and concrete operations - things

they wont learn if they are not attending school regularly

or able to absorb whats being taught Early adolescence (up

to age 18) is famous for peer pressure and the need to lit in

vith same age peers If the only examples of peer relationships

documented in their caretakers and in their neighborhoods are

gang members criminal associations or tricks the jury will

empathize vith their choice of fiiends Later adolescence (up

to age 22-25) involves identity formation The good news here

lies in their emotional immaturity Many of these young men are

still stuck in a chronologically inappropriate developmental stage

Therefore their identity is still up for grabs The jury must hear

that intervention at this stage can truly be life changing

There are so many young men from abusive poverty stricken

neglectful family systems about whom one might say There

but for the grace of God go 1 Its probably true that none

of us gets out of childhood without a scratch Everyone enters

adulthood Jacking something because no parents are capable of

doing their job perfectly However the problems commonly

seen in criminal defendants usually stem from more bad luck

than one person ought to experience Psychological theory

indicates that development is a product of inherited factors life

experiences personal choices societal expectations and chance

These defendants are victims of thei r biology and genealogy

Unfortunately for them these are tllings over which they have no

control The jury wiU value hearing what the defendant was exposed

to in his childhood Heres a ust of the most common things

Drug addicted caretakers

Drug dealing caretakers

Prostiultion as a career choice in caretakers

Criminal activity used as a means to pay the bills

Mental illness andor acute emotional disturbance

in caretakers

Severe poverty

Lack of supervision

Sporadic school attendance

Frequent changes in caretakers

Whereabouts of biological parents unknown

Physical abuse of self andor siblings

Sexual abuse of self andor siblings

Numerous changes in residence

The jury would certainly have been moved to hear that while

working at Childrens Protective Services I had a case in

which an elementary school aged child came home to find his

familys apartment empty His mother failed to mention she

was moving that day True story

DISEASE ANDOR INJURY The mitigation specialistS research into a defendants

medical history may reveal injury or disease that the medical

establishment readily acknowledges causes some degree of

neurological damage or disturbance The injury may in fact

have been caused by physical andor sexual abuse of the

child Testimony regarding this history from a medical expert

can be gripping to the jury and give even just one member

justification for lenience

THERE ARE SO MANY YOUNG MEN FROM

ABUSIVE POVERTY STRICKEN NEGLECTFUL

FAMILY SYSTEMS ABOUT WHOM ONE MIGHT

SAY THERE BUT FOR THE GRACE OF GOD GO

I ITS PROBABLY TRUE THAT NONE OF US GETS

OUT OF CHILDHOOD WITHOUT A SCRATCH

THE DEFENDER 1lt 11

THE MOST COMMON ADULT DIAGNOSES FOUND IN THESE DEFENDANTS INCLUDE

MOOD DISORDERS (DEPRESSION ANXIETY ETC) POST TRAUMATIC STRESS

DISORDER AND DISSOCIATIVE ADJUSTMENT AND PERSONALITY DISORDERS

SUBSTANCE ABUSE AND DEPENDENCE Drug abuse and dependence can also explain what mitigates

rhe defendants criminal actions The most commonly abused

drugs include alcohol stimulants marijuana and opioids

Whar follows are some basic details of what the jury probably

doesnt know about the effects of these commonly used

drugs

1 ALCOHOL Alcohol affects practically every organ in the body and alters

the activity of most major neurochemicals It produces a dose

dependent decrease in cognitive and motor functioning As Blood Alcohol Concentration (BAC) rises the impairment increases People rarely look obviously intoxicated at BAC

levels that produce impairment One of the most pronounced

effects of alcohol is on divided attention tasks

2 STIMULANTS It is well known that tolerance to stimulants develops rapidly

Evidence exists that prolonged use of stimulants seems to

bring about sustained neurophysiologic change in the brain This physical damage to the cells of the brain actually affects

how the brain functions Chronic use can produce toxic

psychosis characterized by confused disorganized behavior

paranoia hallucinations and delusions

3 MARIJUANA Short-term memory and the ability to make emergency

decisions are greatly impaired by marijuana use Impairment

of coordination judgment and perception of time can last

well past the feeling of being high produced by marijuana

Impairment of cognitive functions such as judgment and

problem solving can lead to poor decision-making with regard

to present and future outcomes

40PIOIDS Opioids are distributed throughout the body including the central nervous system where they have a psychoactive effect

The primary use of opioids is as an analgesic - a pain reliever The bio-behavioral effects include respiratory depression nausea impaired memory and attention There may be little or no observable impairment in someone intoxicated on opiates

THE DEFENDER 12

SElECTING EXPERT WITNESSES The mitigation specialist works with counsel to develop rhe

explanarion rhat will demonstrate and support rhe diagnosis

presented in court by the Expert Witness Their research

underscores the fact that abuse and neglect contribute to

psychological and mental disorders This constitutes a basis

for minimizing ones culpability in high stress situations such

as the commission ofa violent crime The most common adult

diagnoses found in these defendants include Mood Disorders

(depression anxiety etc) Post Traumatic Stress Disorder and

Dissociative Adjustment and Personality Disorders Research

into their history often uncovers previous childhood diagnoses

ofAttention Deficit Hyperactivity Disorder Conduct Disorder

Oppositional Defiant Disorder and learning disabilities as

well Of course its common to find a history of physical

and sexual abuse of rhe defendant andor his siblings What

the jury needs to hear is that these conditions could often

be improved with counseling and a structured environment

Time and again efforts at intervention have been made by

Childrens Protective Services Texas Youth Commission or

other agencies Often services have been offered or even put

in place However the services may not have been sought out

followed through on or completed by the caretakers Many

times there is clear evidence of a Treatment Plan having

been developed that was never implemented by the caregivers

(who had their own deficits) or by the agency staff charged

with insuring that the services were delivered This is another

situation over which the defendant had no control as a child

This information supports a case for leniency and needs to be

shared with the jury

To gather the information needed to chronicle the

developmental problems in a defendants childhood the

mitigation specialist uses interviews with him family members

willing to make themselves available and records such as

Childrens Protective Services Texas Youth Commission

Texas Department of Criminal Justice school districts and

whatever else can be found Its not uncommon for records

collection to extend to other states or even other countries

Its important to go back and look at the specific details of

charges made against the defendant especially in juvenile

situations The events may actually be a lot less offensive

than they are made to sound Picture a defendant who at

age 10 has been charged in a juvenile case with assaulting a

police officer who was trying to take him into custody When

looking at the narratives describing the situation from the

CPS perspective the explanation was right there in black and

white He didnt know where the police were taking him

He watched other officers take two of his siblings inside a

building and they didnt come out He kept saying he wanted

to go home What he didnt know was that his parents had

already refused to come and get them It is imperative that the

jury hear such a story

The mitigation specialist is helpful in bringing the Expert

Witness and the evidence together Their mental health

background will be particularly significant in helping counsel

decide who the best experts will be Your mitigation specialist

can help find experts who are willing and able to testify to only

what the defense needs and not be inclined to take control of

the situation

Armed with all of the information obtained by the mitigation

specialist the attorney has a variety of options regarding how

to use the information The attorney can use it to

Seek a plea agreement

Select a jury sensitive to the issues relative to the case

Elicit supportjve testimony during cross examination of

witnesses

Present a compelling story at punishment phase

In the effort to find a settlement certainly attorneys dont

want to unnecessarily reveal details of mitigation evidence

before trial However the duty to seek a plea for life must be

at the center of the defense teams goals in capital cases That

evidence will come trom your mitigation specialists research

With the decision in Miller vs Dretke mitigation is becoming

important in all felony cases Familiarize yourself with

mitigation specialists

THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT

MITIGATION IS NOT AN EXCUSE ITS AN EXPLANATION

E

THE DEFENDER 13

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

THEDEFENDER] WINTER 07

Winning WARRIORS + Continuing her phenomenal streak KATHERINE SCARDINO scored yet another Not Guilty on a non-death capital murder in the 184th the issue was corroboration of accomplice witness testimony

+ KATHRYN KASE of the Texas Defender Service made the case for Death Row client Daniel Platas mental retardation resulting in findings of fact and conclusions of law that recommend his death sentence be set aside The 351 st District Courts recommendation must now pass muster with the Court of Criminal Appeals

+ Proving that he somehow finds time to practice law when he is not doing good works as HCCLA President PAT McCANN negotiated a 30-year plea for a Ft Bend County client in a case that was originally a death-penalty capital He and mitigation specialist PAM STITES submitted an extensive mitigation evidence that caused the State to waive death and agree to the lesser plea

+ A 3-justice panel of the Fourteenth Court of Appeals unanimously set aside the gag order imposed by Judge Devon Anderson in the Ashley Benton case thanks to BRIAN WICES briefing and oral argument In re Benton _ SW3d _ 2007 WL 3408971 (Tex App -- Houston [14th Dist] 111607)

+ JIM LAVINE received the 27th annual Robert C Heency Me1lUJ1Ud Award by the National Association of Criminal Defense Lawyers at the associations annual meeting in San Francisco on August 4 2007 This award is the most prestigious honor given by the NACDL and is conferred annually to one criminal defense attorney who personally and professionally best exemplifies the goals and values of the association and the legal profession

+ LANCE HAMM won a reversal and judgment of acquittal in a published opinion Sanchez v State _ SW3d _ No 01 -06-0021 O-CR (TexApp -- Houston [l st Dist] 2007) due to HPD chemist Joseph Chus inability to quantity the amount of Promethazine in the alleged controlled su bstance

+ Following almost three years of pretrial litigation the team of JAMES STAFFORD TOM STICKLER AIMEE SOLWAY and mitigation specialist NAOMI TERR convinced the Matagorda County DAs office to offer two life sentences on the capital murder and sexual assault of a young girl despite really bad facts

+ In what may be one of last cases of its kind MARK BENNETT and TYRONE MONCRIFFE persuaded a jury to recommend probation for both of their clients convicted of murder in the 339th District Court despite the prosecutors plea for 20 years SARAH WOOD and JEFF DOWNING assisted

+ After a 4-day trial in CCCL 14 the jury took less than 30 minutes to acquit CHRIS TRITICOS client of Class A assault CHRIS followed this performance with another Not Guilty the following week in CCCL 12

+ TAD NELSON hung the jury in the Galveston County trial of a bird watcher charged with felony animal cruclty for shooting a feral cat allegedly adopted by a tollbooth worker the case will not be retried according to prosecutors

+ Also in Galveston County JL CARPENTER got a Not Guilty for his client charged with indecency with a child in the 212th District Court

THE DEFENDER -(( 3

+ Even though his client hit a police car the jury found JIM BUTLERS client Not Guilty of OWl after the court gave him an instructed verdict on the twO drug paragraphs in CCCL 15

+ DAVID FLEISCHER heard Not Guilty in an assault trial in CCCL 7 on November 14 2007

+ JOANNE and EARL MUSICK hung the jury 11-1 10-2 and 10-2 for Not Guilty on three counts of indecency in the

180th District Court In October JOANNE and EARL along with AMANDA DOWNING got a Not Guilty on a family violence assault in CCCL 4 that had previously hung 5-1 for guilty

+ MARK THIESSEN celebrated his first jury trial with a Not Guilty on DWl in CCCL 11 on November 132007

+ In his first jury trial since retiring from the bench MIKE PETERS obtained an acquittal for his client charged with assault in CCCL 5

+ MARK KELLY won a Not Guilty on a OWl in CCCL 8 on November 92007

+ A good week in October for STEVE HALPERT started with the State dismissing a total refusal DWI in CCCL 4 as soon as the jury was seated He then picked up a Not Guilty on a no-test no accident OWl in CCCL 2 for his client who was stopped for speeding through a red light with a broken windshield [busted in the domestic fracas that began the evenings events] was uncooperative with 911 and had a bad

video to boor STEVE thanks TODD LEFFLER for his help on

voir dire CHUCK STANFIELD for two fine ALR transcripts and

TROY MCKINNEY and JIM MEDLEY for answering emergency in-trial questions It takes a village l

Two months earlier STEVE bested the Ft Bend County proseclltion when the jury awarded his client probation on a very tough aggravated sexual assault

+ KELLY CASE got a Not Guilty on a no test no accident OWl in CCCL 7

+ Two separate clients were spared trials when DAN GERSON and HENRY NGUYEN persuaded the grand jury to return noshybills on two cases of aggravated sexual assault of a child

+ The University of Houston School of Laws chapter of Phi

Alpha Delta honored WENDY MillER as Alumnus of the

Year on November 8 2007 WENDY is the third honoree she follows UH Law graduates John OQuinn and Robert Sohns in this recognition

+ A law and order jury in CCCL 13 only took 20-30

minutes [lunch included] to acquit SHANDON TONRYS client of assaulting her boyfriends brother despite the judgeS refusal to admit any evidence concerning the complainantS reputation for violence and prior history of violent behavior including a military discharge for being a danger to others The jury later opined that the case was a waste of time and

money SARAH WOOD assisted in voir dire and RANDALL KALLINEN and TOM lAKES offered help with last -minute questions

+ CHRISTOPHER CARLSON and JOHN FLOYD succeeded in getting their client no-billed for aggravated sexual assault of a child thanks to an extensive investigation packet and persistently pushing the prosecution

+ An alleged total whale for the State ended in an acquittal

for BRIAN WARREN on a family violence assault in CCCL 1 thanks to his masterful cross-examination of a gung ho cop and a complainant who wanted blood

+ TUCKER GRAVES scored a Not Guilty on a first-degree injury to a child in the 176th District Court

+ The highly publicized trial of former TSU president Priscilla

Slade ended in a 6-6 deadlock after a tireless effort by MIKE DEGEURIN and PAUL NUGENT The case is currently set for retrial in the spring of 2008

+ NORM SILVERMAN convinced the 232 nd District Court to grant a motion to suppress evidence seized under a stale warrant

+ A no-test no accident DWl charge led to a Not Guilty for

DOUG MURPHY in CCCL 7 on October 10 2007

+ PAUL DECUIR won a forfeiture action in the 183rd District Court after the Assistant Attorney General for the State of Texas testified that the DA s office cannot represent the state in such proceedings

THE DEFENDER 4

+ Two acquittals in a row for TODD OVERSTREET on a 14 OWl in CCCL 9 and a 14 OWl in CCCL 17 So much for the infallibility of the lntoxilyzer

+ ROBB CZAR FICKMAN won a no-bill for his client charged with aggravated assault for allegedly running over his [the clients] estranged wifes leg

+ Extensive trial preparation and consultation with experts

rewarded AMANDA DOWNING with a dismissal of injury to a child charges against her client in the 178 th District COllrt

+ Federal Public Defender BRENT NEWTON heard Not Guilry in Judge Hittners court when the jury believed his client over four police officers concerning the alleged violent struggle

+ BOB LOPER persuaded the jury to acquit his client of capital murder in the 228 th District Court and convict on the lesser of felony murder then assess punishment at 30 years in prison

+ Sweet victory fell to KENNETH MCCOY when the jury returned a Not Guilty on a murder case in the 232 nd District Court

+ Rebounding from the jurys convictjon of his client for

intoxication assault and intoxication manslaughter SAM CAMMACK scored the minimum probated sentences and a negative finding on the deadly weapon issue despite a prior OWl conviction

+ After MAC SECREST reversed a murder conviction with 45shy

year sentence DANNY EASTERLING [not the original lawyer] retried the case and ended up with a 20-year sentence on a manslaughter conviction saving his client 25 aggravated

years JOANNE MUSICK helped pick the jury

+ On a motion to quash the indictment JOSEPH R WILLIE obtained a hard-fought dismissal of aggravated perjury charges the Jackson County DA filed against his client simply because he was convicted after testifying in his own behalf [We assume that Jackson Counry is equally diligent in filing aggravated perjury charges against its own witnesses whenever an accused is acquitted]

+ DAVID KIAnA won an acquittal for his client in CCCL 7 on a DVl PCS charge and in the process earned compliments on his skill and professionalism from the prosecutor

+ Fast becoming the scourge ofthe Victoria County prosecution

TODD DUPONT scored two Not Guilry verdicts on aggravated assaults in the same day

+ JUANITA BARNER won an acquittal on interference with a 911 call in CCCL 2 even though the complainant was a Harris Counry deput) [albeit one who never wanted the charges to be filed and who had to be threatened with contempt to testi fy]

+ That same day Juanitas mentor VIVIAN KING secured a dismissal for her juvenile client charged with aggravated assault in the 313 th District Court

+ Following two days of deliberations and a defense-requested

Allen charge ALVIN NUNNERY walked off with a Not Guilty on a murder in the 35JSt District Court

+ A total refusal OWl brought a happy ending to NATHANIEL TARLOWS first jury trial in CCCL 11 after only 30 minutes

of deliberation NATHANIEL thanks TROY MCKINNEY and ROBB FICKMAN for all their guidance and ideas

+ First beating a capital charge down to straight murder at the

grand jury CHARLIE BROWN then brought it on horne with a Not Guilty at trial in the 185th District Court despite a surviving eye witness the jury actually credited the accuseds alibi

+ The jury took only a few minutes to return an acquittal on

a family violence assault case tried by JAMES ALSTON and

AMANDA WEBB

+ Being on parole and workjng repos would seem to be a

no-fail recipe for trouble but KYLE VANCE saved just such a client after he was accused of running over the complainant

with his wrecker during a repossession in San Jacinto County

JOANNE MUSICK rode shotgun

TIE DEFUIER ott I

+ JED SILVERMAN got a motion to suppress granted in CCCL 15 after the arresting sheriffs deputy testified that Everyone I pullover is under arrest at the time I Stop them then resisted the prosecutions desperate attempts to re-educate

him HENRY NGUYEN sat second

+ DAVID flEISCHER heard a two-word verdict in CCCL 14 on August 28 2007

+ PAULA SILVA and NEAL DAVIS won a Not Guilty on a DWl in CCCL 6

+ Having just substituted in four days before trial and been denied a continuance MARY GRACE RUDEN and TODD LEFflER staged a major coup in winning a felony DWI in the 228 th

District COllrt

+ Arguing that the 1 hour and 45 minute detention was unreasonable in its scope and unjustified for a mere speeding stop tainting any subsequent consent to search if any had

been given MEKISHA WALKER MURRAY succeeded in having the veapon eventually found under the hood of the car suppressed in the 182nd District Court

+ The Supreme Court of the United States effectively ended Harris Countys ongoing efforts to enshrine a neon-lit King James Bible on the grounds of the old civil courthouse by denying certiorari in KAJ Staley v Harris County Ms

Staley represented by RANDALL KALlINEN prevailed at every level of the proceedings and weathered various threats to her life and being hung in effigy by some in favor of Stateshysponsored religion

FUTURE WARRIORS

+ October was a good month for RICK SOLIZ beginning with his success in obtaining a downward departure that resulted in probation for his client charged with perjury in the Western

District of Texas - Midland Division RICK took advantage of being in Dubyas hometown to argue and brief what was

essentially a Scooter Libby situation RICK also obtained trial date dismissals in CCCL 2 for telephone harassment and CCCL 13 for assault He wrapped up with a jury hung 5 -1

for Not Guilty on criminal trespass in CCCL 1 O RICK credits the priceless advice he gets from HCCLA members

CONGRATULATIONS TO ALL THESE WINNING WARRIORS

MARCH MICHAEL flOOD 7 Ibs 2 oz joined proud parents Tyler and Aimee Flood and 2 -year-old big brother Senator on October 30 2007

Doug and Kelly Murphy welcomed ELLIOTT MARSHALL MURPHY 8 Ibs 5 oz on November 142007

Todd and Kay Dupont added another little beauty to their bevy of belles when AVA KATHLEEN DUPONT bowed in on November 20 2007 weighing 6 Ibs 4 oz

THE DEFENDER 6

THEDEFENDER] WINTER 07

APPELLATE COURT SHUFFLE ON JURY SHUFFLES

Judicial Voodoo ON

Who Do the Aski gBy Troy McKinney

IN TREJOS V STATE __ SW3d _ _ 2007 WL 1500276 (TEX APP -- HOUSTON [1 ST OIST] 2007 PET REF D) [NOT DESIGNATED

FOR PUBLICATION] DEFENDANT CHALLENGED THE TRIAL COURTS GRANTING OF A SHUFFlE REQUESTED BY THE STATE AFTER

THE TRIAL JUDGE HAD QUESTIONED THE PANEl BUT BEFORE THE STATE HAD BEGUN ASKING ANY QUESTIONS IN REJECTING THE

DEFENDANTS CLAIM OF ERROR IN GRANTING THE SHUFFlE REQUESTED BY THE STATE A PANEl CONSISTING OF JUSTICES TAFT

ALCALA AND HANKS CONCLUDED

In a non ~capital case as here a motion to shuffle is timely as long as the motion is

m de before the State actually starts questioning the jurors in its portion of the

oir dire DeLeon v State 731 SW2d 948949 (Tex Crim App 1987)

MUiams v State 719 SW2d 573 577 (Tex Crim App 1986)

8iJJardJess othe enotb or detail othe trial courrs questiom to the

pn1we panel in a non-capital we the lniDht-line rule is that the

nwtion to shuffle the venire is timely when it is nuuJe bifore the

State begins questioni1lJJ the potential jurors See WiUiams 719 SW2d at 577 (holding motion to shuffle venire timely

although for forty minutes the trial judge introduced

herself and made introductory remarks identified the

attorneys pointed out the appellant and his co~

defendant Raymond Jackson discussed the division

of offenses into felonies and misdemeanors gave

examples of felonies of the first second and

third degree and the applicable penalties

discussed capital murder and its penalties

and the high fines now available in

cases of drug trafficking read the

instant indictment to the panel

told them the offense was

formerly known as aggravated

rape discussed jury strikes

the order of trial the charge

jury deliberations verdicts and

referred to certain principles as

presumption of innocence burden

of proof reasonable doubt etc)

THE DEFENDER 1lt 7

both

The States motion to shuffle was timely in this non-capital case because it was made before the State began its voir dire

See DeLeon 731 SW2d at 949 WiUiams 719 SW2d at 577 We hold that the trial court did not err by granting

the States motion to shuffle the jury panel

Trejos at 4 (Emphasis added)

Of course this bright-line rule was no so bright when a citizen claimed that the trial court erred in declining to allow him a

jury shuffle under the same circumstances that is after the trial judge had questioned the jurors but before the Stdte begdn its

questioning of the panel In Railsback v State 1 95 SW3d 473 (Tex App -- Houston [l st Dist] 2002 pet refd) a panel

of the same court consisting of Justices Taft Radack and Alcala (two of the three justices who decided Trejos) held

We cond ude that because of the nature and circumstances of the of the voir dire proced ure in this case the tridl court

did not err in denying appellantS request for a jury shuffle on grounds of timeliness In Wdliams which held that

voir dire did not commence until the State had begun its examination the trial judge did not engage in a detailed

questioning of the panel WiUiams 719 SW2d at 574 The trial judge introduced herself introduced the parties dnd

their attorneys explained that there were divisions between offenses and that there were different penalties that could

be applicable read the indictment discussed how the trial would work and defined various legal terms that were used

during the course of a tridl ld The trial judge in WiUiams then asked 3 questions 1) whether anyone recognized

the names of the parties or knew the facts of the case 2) whether anyone had questions as to what the State would

have to prove and 3) ifanyone felt that they could nOt give a punishment within the range allowed by law Id Here

the trial court went well beyond the mere introductory remarks and

began asking questions of the venire members traditionally asked

by the State and a defendant during voir dire proceedings For

all intents and purposes voir dire in this case began when the

trial court began asking questions of the panel that were no

longer related to introductory and administrative matters

and would have traditionally been asked by the parties

themselves

The divergent views of the import of the decision in WiUiams and

the divergent views of the brightness of the alleged bright-line rule are

facially and irreconcilably inconsistent This might be understandable if

these decisions were from different courts or even from different justices

on the same court but they are not The majority of the justices on

panels (Justices Taft and Alcala) are identical Conspicuously Trejos does not

even mention much less reconcile Railsback

The only difference between these two cases is which side won The real rule from these cases is that judges may give the

State relief and deny it to a Defendant under legally identical circumstances and the appellate courts are unlike ly to provide any

relief when the Defendant complains of the error and the inconsistency The real rule from these cases is that appellate justices

will likely view prior cases in whatever way is necessary to affirm a conviction and it matters not that they have said something

different in prior years and cases

Inconsistent decisions just do nOt get much worse than these two decisions Maybe if we shine some light on these kinds of

judicial inconsistencies these bright-line rules will get applied equdlly in the future One can only hope though the past provides

little basis for validating the likelihood that such hope will become reality

W Troy McKinney is a shareholder in Schneider amp McKinney Pc He is one of three lawyers in Texas who is Board Certified in DWI

Defense by the National College for DUI Defense where he is a Regent McKinney is a past President of the HCClA He teaches

throughout the country_ is regularly published and is the coauthor of Texas Drunk Driving law (lexis 4th Ed) McKinney maintains an

active trial and appellate practice

THE DEFENDER -(( 8

THEDEFENDER] WINTER 07

IN LI GHT OF RECENT COURT DECISIONS AND THE ABA GUIDEliNES REGARDING THE IMPORTANC EOF DISCOVERING ALL REASONABLY

AVAILABLE MITIGATING EVIDENCE ON BEHALF OF ADEFENDANT CRIMINAL ATTORNEYS ARE FINDING IT ANECESSITY TO ENLIST

MITIGATION EXPERTS TO HElP AT THE VERY LEAST IN THE PUNISHMENT PHASE OF THEIR TRIALS

THE MITIGATION SPECIALIST It appears now that judges will expect a comprehensive and

reliable mental health evaluation to be conducted in not only

capital cases but in criminal felony cases as well Mitigation

speciJlists who have experience as well as graduate degrees

in Social Work or Psychology possess the skills insight and

abilities to complete sllch evaluations and interview defendants

and their significant others in such a way that they obtain

information the defendant and others may be unlikely to share

with the attorney They also have the expertise to uncover

and recognize mental illness or retardation that the client has

gone to great lengths to hide The specialistS interviewing

techniques might elicit sensitive or even humiliating evidence

that the defendant has never shared before Its obvious that

these defendants would not be where they are if they were

adequate communicators and had good relationship skills

Mitigation specialists can see beyond these deficits and get the

information required for a comprehensive defense Depraved

conduct does not develop out of thin air There are causes

and causes found lead to evidence in mitigation Counsel is

going to need a theory that will be effective in both the guilt

and penalty phases of the trial Your mitigation specialist can

help define that theory

THE DEFENDANTS BIOLOGY AND ENVIRONMENT When looking at what might constitute mitigation in capital

as well as felony cases attorneys can turn to mental health

practitioners to understand how dysfunctional human behavior

must have contributed to this mess in which the defendant

finds himself The male pronoun is appropriate because these

defendants are predominantly male However the theory

applies to women as well Their gender certainly doesnt

provide immunity from childhood abuse and neglect

THE DEFENDER -( B

It is common for the defendant to be a young male in

the range of 17 to 29 years of age and no one should be

surprised by this The background of young males raised

in poverty abuse and neglect fosters violence and emotional

immaturity These young men are chronologically of legal

age but emotionally they may be operating at much younger

developmental stages This is evidenced by their short attention

span their poor decision- making abilities their lack of awareness

of the basic rights and boundaries of others their explosive

entry into emotions and their tendency to blame others for

their problems - all of which can be documented by records

and interviews

Another telltale sign of emotional immaturity is their persistent

need to protect their abusers usually parents or grandparents

Some will even go so far as to be protective of former foster

parents Children (and psychologically these defendants are

still children) desperately want to make their caretakers seem

loving and caring They do this to avoid having to acknowledge

that those persons who were supposed to protect them actually

were the people they should have feared the most That level

of sel fish ness and lack of empathy in a caretaker is very hard

for a child to absorb The terror inherent in that knowledge

is unmanageable Blaming the adult is too painful Thats why

children take responsibility for things they couldnt possibly

have foreseen or caused or prevented When the time comes to

discuss with the defendant the mitigating reasons the attorneys

plan to use in his defense he may be very distrustful This is

when he must embrace the reality about his parents andor

caretakers The mitigation specialist can help him separate the

act of loving ones children from the job of parenting them

There is a widely recognized psychological theory that explains

human development over the life span and is taught as basic

theory to Psych 101 students It was framed by renowned

20th century psychoanalyst Erik Erikson (1902-1994) This

theory divides the life span into stages and attributes a specific

developmental task to each stage The tasks required for healthy

development through childhood and early adolescence include

trust autonomy initiative identity and individuality When

one or more of these tasks are not successfully accomplished

in one stage the child continues to grow chronologically but

his emotional development is damaged In the case of severe

abuse andor neglect its very common for more than one

developmental stage to be derailed Abuse that begins early

in childhood such as in infancy damages the childs ability to

discern empathy A toddler (age 2-4) is famous for imitation

If the toddlers caretakers are smoking dope and never leave

the sofa except to hit each other or conduct a drug sale the

jury needs to appreciate what they would have imitated Four

to six year olds are developing a moral compass self-es teem

and a sense of group interaction If the jury hears that the

defendant was left alone for long periods of time during his

childhood they can recognize how the defendants sense of

self became profoundly skewed Six- to twelve-year- olds are

focused on skill building and concrete operations - things

they wont learn if they are not attending school regularly

or able to absorb whats being taught Early adolescence (up

to age 18) is famous for peer pressure and the need to lit in

vith same age peers If the only examples of peer relationships

documented in their caretakers and in their neighborhoods are

gang members criminal associations or tricks the jury will

empathize vith their choice of fiiends Later adolescence (up

to age 22-25) involves identity formation The good news here

lies in their emotional immaturity Many of these young men are

still stuck in a chronologically inappropriate developmental stage

Therefore their identity is still up for grabs The jury must hear

that intervention at this stage can truly be life changing

There are so many young men from abusive poverty stricken

neglectful family systems about whom one might say There

but for the grace of God go 1 Its probably true that none

of us gets out of childhood without a scratch Everyone enters

adulthood Jacking something because no parents are capable of

doing their job perfectly However the problems commonly

seen in criminal defendants usually stem from more bad luck

than one person ought to experience Psychological theory

indicates that development is a product of inherited factors life

experiences personal choices societal expectations and chance

These defendants are victims of thei r biology and genealogy

Unfortunately for them these are tllings over which they have no

control The jury wiU value hearing what the defendant was exposed

to in his childhood Heres a ust of the most common things

Drug addicted caretakers

Drug dealing caretakers

Prostiultion as a career choice in caretakers

Criminal activity used as a means to pay the bills

Mental illness andor acute emotional disturbance

in caretakers

Severe poverty

Lack of supervision

Sporadic school attendance

Frequent changes in caretakers

Whereabouts of biological parents unknown

Physical abuse of self andor siblings

Sexual abuse of self andor siblings

Numerous changes in residence

The jury would certainly have been moved to hear that while

working at Childrens Protective Services I had a case in

which an elementary school aged child came home to find his

familys apartment empty His mother failed to mention she

was moving that day True story

DISEASE ANDOR INJURY The mitigation specialistS research into a defendants

medical history may reveal injury or disease that the medical

establishment readily acknowledges causes some degree of

neurological damage or disturbance The injury may in fact

have been caused by physical andor sexual abuse of the

child Testimony regarding this history from a medical expert

can be gripping to the jury and give even just one member

justification for lenience

THERE ARE SO MANY YOUNG MEN FROM

ABUSIVE POVERTY STRICKEN NEGLECTFUL

FAMILY SYSTEMS ABOUT WHOM ONE MIGHT

SAY THERE BUT FOR THE GRACE OF GOD GO

I ITS PROBABLY TRUE THAT NONE OF US GETS

OUT OF CHILDHOOD WITHOUT A SCRATCH

THE DEFENDER 1lt 11

THE MOST COMMON ADULT DIAGNOSES FOUND IN THESE DEFENDANTS INCLUDE

MOOD DISORDERS (DEPRESSION ANXIETY ETC) POST TRAUMATIC STRESS

DISORDER AND DISSOCIATIVE ADJUSTMENT AND PERSONALITY DISORDERS

SUBSTANCE ABUSE AND DEPENDENCE Drug abuse and dependence can also explain what mitigates

rhe defendants criminal actions The most commonly abused

drugs include alcohol stimulants marijuana and opioids

Whar follows are some basic details of what the jury probably

doesnt know about the effects of these commonly used

drugs

1 ALCOHOL Alcohol affects practically every organ in the body and alters

the activity of most major neurochemicals It produces a dose

dependent decrease in cognitive and motor functioning As Blood Alcohol Concentration (BAC) rises the impairment increases People rarely look obviously intoxicated at BAC

levels that produce impairment One of the most pronounced

effects of alcohol is on divided attention tasks

2 STIMULANTS It is well known that tolerance to stimulants develops rapidly

Evidence exists that prolonged use of stimulants seems to

bring about sustained neurophysiologic change in the brain This physical damage to the cells of the brain actually affects

how the brain functions Chronic use can produce toxic

psychosis characterized by confused disorganized behavior

paranoia hallucinations and delusions

3 MARIJUANA Short-term memory and the ability to make emergency

decisions are greatly impaired by marijuana use Impairment

of coordination judgment and perception of time can last

well past the feeling of being high produced by marijuana

Impairment of cognitive functions such as judgment and

problem solving can lead to poor decision-making with regard

to present and future outcomes

40PIOIDS Opioids are distributed throughout the body including the central nervous system where they have a psychoactive effect

The primary use of opioids is as an analgesic - a pain reliever The bio-behavioral effects include respiratory depression nausea impaired memory and attention There may be little or no observable impairment in someone intoxicated on opiates

THE DEFENDER 12

SElECTING EXPERT WITNESSES The mitigation specialist works with counsel to develop rhe

explanarion rhat will demonstrate and support rhe diagnosis

presented in court by the Expert Witness Their research

underscores the fact that abuse and neglect contribute to

psychological and mental disorders This constitutes a basis

for minimizing ones culpability in high stress situations such

as the commission ofa violent crime The most common adult

diagnoses found in these defendants include Mood Disorders

(depression anxiety etc) Post Traumatic Stress Disorder and

Dissociative Adjustment and Personality Disorders Research

into their history often uncovers previous childhood diagnoses

ofAttention Deficit Hyperactivity Disorder Conduct Disorder

Oppositional Defiant Disorder and learning disabilities as

well Of course its common to find a history of physical

and sexual abuse of rhe defendant andor his siblings What

the jury needs to hear is that these conditions could often

be improved with counseling and a structured environment

Time and again efforts at intervention have been made by

Childrens Protective Services Texas Youth Commission or

other agencies Often services have been offered or even put

in place However the services may not have been sought out

followed through on or completed by the caretakers Many

times there is clear evidence of a Treatment Plan having

been developed that was never implemented by the caregivers

(who had their own deficits) or by the agency staff charged

with insuring that the services were delivered This is another

situation over which the defendant had no control as a child

This information supports a case for leniency and needs to be

shared with the jury

To gather the information needed to chronicle the

developmental problems in a defendants childhood the

mitigation specialist uses interviews with him family members

willing to make themselves available and records such as

Childrens Protective Services Texas Youth Commission

Texas Department of Criminal Justice school districts and

whatever else can be found Its not uncommon for records

collection to extend to other states or even other countries

Its important to go back and look at the specific details of

charges made against the defendant especially in juvenile

situations The events may actually be a lot less offensive

than they are made to sound Picture a defendant who at

age 10 has been charged in a juvenile case with assaulting a

police officer who was trying to take him into custody When

looking at the narratives describing the situation from the

CPS perspective the explanation was right there in black and

white He didnt know where the police were taking him

He watched other officers take two of his siblings inside a

building and they didnt come out He kept saying he wanted

to go home What he didnt know was that his parents had

already refused to come and get them It is imperative that the

jury hear such a story

The mitigation specialist is helpful in bringing the Expert

Witness and the evidence together Their mental health

background will be particularly significant in helping counsel

decide who the best experts will be Your mitigation specialist

can help find experts who are willing and able to testify to only

what the defense needs and not be inclined to take control of

the situation

Armed with all of the information obtained by the mitigation

specialist the attorney has a variety of options regarding how

to use the information The attorney can use it to

Seek a plea agreement

Select a jury sensitive to the issues relative to the case

Elicit supportjve testimony during cross examination of

witnesses

Present a compelling story at punishment phase

In the effort to find a settlement certainly attorneys dont

want to unnecessarily reveal details of mitigation evidence

before trial However the duty to seek a plea for life must be

at the center of the defense teams goals in capital cases That

evidence will come trom your mitigation specialists research

With the decision in Miller vs Dretke mitigation is becoming

important in all felony cases Familiarize yourself with

mitigation specialists

THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT

MITIGATION IS NOT AN EXCUSE ITS AN EXPLANATION

E

THE DEFENDER 13

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

+ Even though his client hit a police car the jury found JIM BUTLERS client Not Guilty of OWl after the court gave him an instructed verdict on the twO drug paragraphs in CCCL 15

+ DAVID FLEISCHER heard Not Guilty in an assault trial in CCCL 7 on November 14 2007

+ JOANNE and EARL MUSICK hung the jury 11-1 10-2 and 10-2 for Not Guilty on three counts of indecency in the

180th District Court In October JOANNE and EARL along with AMANDA DOWNING got a Not Guilty on a family violence assault in CCCL 4 that had previously hung 5-1 for guilty

+ MARK THIESSEN celebrated his first jury trial with a Not Guilty on DWl in CCCL 11 on November 132007

+ In his first jury trial since retiring from the bench MIKE PETERS obtained an acquittal for his client charged with assault in CCCL 5

+ MARK KELLY won a Not Guilty on a OWl in CCCL 8 on November 92007

+ A good week in October for STEVE HALPERT started with the State dismissing a total refusal DWI in CCCL 4 as soon as the jury was seated He then picked up a Not Guilty on a no-test no accident OWl in CCCL 2 for his client who was stopped for speeding through a red light with a broken windshield [busted in the domestic fracas that began the evenings events] was uncooperative with 911 and had a bad

video to boor STEVE thanks TODD LEFFLER for his help on

voir dire CHUCK STANFIELD for two fine ALR transcripts and

TROY MCKINNEY and JIM MEDLEY for answering emergency in-trial questions It takes a village l

Two months earlier STEVE bested the Ft Bend County proseclltion when the jury awarded his client probation on a very tough aggravated sexual assault

+ KELLY CASE got a Not Guilty on a no test no accident OWl in CCCL 7

+ Two separate clients were spared trials when DAN GERSON and HENRY NGUYEN persuaded the grand jury to return noshybills on two cases of aggravated sexual assault of a child

+ The University of Houston School of Laws chapter of Phi

Alpha Delta honored WENDY MillER as Alumnus of the

Year on November 8 2007 WENDY is the third honoree she follows UH Law graduates John OQuinn and Robert Sohns in this recognition

+ A law and order jury in CCCL 13 only took 20-30

minutes [lunch included] to acquit SHANDON TONRYS client of assaulting her boyfriends brother despite the judgeS refusal to admit any evidence concerning the complainantS reputation for violence and prior history of violent behavior including a military discharge for being a danger to others The jury later opined that the case was a waste of time and

money SARAH WOOD assisted in voir dire and RANDALL KALLINEN and TOM lAKES offered help with last -minute questions

+ CHRISTOPHER CARLSON and JOHN FLOYD succeeded in getting their client no-billed for aggravated sexual assault of a child thanks to an extensive investigation packet and persistently pushing the prosecution

+ An alleged total whale for the State ended in an acquittal

for BRIAN WARREN on a family violence assault in CCCL 1 thanks to his masterful cross-examination of a gung ho cop and a complainant who wanted blood

+ TUCKER GRAVES scored a Not Guilty on a first-degree injury to a child in the 176th District Court

+ The highly publicized trial of former TSU president Priscilla

Slade ended in a 6-6 deadlock after a tireless effort by MIKE DEGEURIN and PAUL NUGENT The case is currently set for retrial in the spring of 2008

+ NORM SILVERMAN convinced the 232 nd District Court to grant a motion to suppress evidence seized under a stale warrant

+ A no-test no accident DWl charge led to a Not Guilty for

DOUG MURPHY in CCCL 7 on October 10 2007

+ PAUL DECUIR won a forfeiture action in the 183rd District Court after the Assistant Attorney General for the State of Texas testified that the DA s office cannot represent the state in such proceedings

THE DEFENDER 4

+ Two acquittals in a row for TODD OVERSTREET on a 14 OWl in CCCL 9 and a 14 OWl in CCCL 17 So much for the infallibility of the lntoxilyzer

+ ROBB CZAR FICKMAN won a no-bill for his client charged with aggravated assault for allegedly running over his [the clients] estranged wifes leg

+ Extensive trial preparation and consultation with experts

rewarded AMANDA DOWNING with a dismissal of injury to a child charges against her client in the 178 th District COllrt

+ Federal Public Defender BRENT NEWTON heard Not Guilry in Judge Hittners court when the jury believed his client over four police officers concerning the alleged violent struggle

+ BOB LOPER persuaded the jury to acquit his client of capital murder in the 228 th District Court and convict on the lesser of felony murder then assess punishment at 30 years in prison

+ Sweet victory fell to KENNETH MCCOY when the jury returned a Not Guilty on a murder case in the 232 nd District Court

+ Rebounding from the jurys convictjon of his client for

intoxication assault and intoxication manslaughter SAM CAMMACK scored the minimum probated sentences and a negative finding on the deadly weapon issue despite a prior OWl conviction

+ After MAC SECREST reversed a murder conviction with 45shy

year sentence DANNY EASTERLING [not the original lawyer] retried the case and ended up with a 20-year sentence on a manslaughter conviction saving his client 25 aggravated

years JOANNE MUSICK helped pick the jury

+ On a motion to quash the indictment JOSEPH R WILLIE obtained a hard-fought dismissal of aggravated perjury charges the Jackson County DA filed against his client simply because he was convicted after testifying in his own behalf [We assume that Jackson Counry is equally diligent in filing aggravated perjury charges against its own witnesses whenever an accused is acquitted]

+ DAVID KIAnA won an acquittal for his client in CCCL 7 on a DVl PCS charge and in the process earned compliments on his skill and professionalism from the prosecutor

+ Fast becoming the scourge ofthe Victoria County prosecution

TODD DUPONT scored two Not Guilry verdicts on aggravated assaults in the same day

+ JUANITA BARNER won an acquittal on interference with a 911 call in CCCL 2 even though the complainant was a Harris Counry deput) [albeit one who never wanted the charges to be filed and who had to be threatened with contempt to testi fy]

+ That same day Juanitas mentor VIVIAN KING secured a dismissal for her juvenile client charged with aggravated assault in the 313 th District Court

+ Following two days of deliberations and a defense-requested

Allen charge ALVIN NUNNERY walked off with a Not Guilty on a murder in the 35JSt District Court

+ A total refusal OWl brought a happy ending to NATHANIEL TARLOWS first jury trial in CCCL 11 after only 30 minutes

of deliberation NATHANIEL thanks TROY MCKINNEY and ROBB FICKMAN for all their guidance and ideas

+ First beating a capital charge down to straight murder at the

grand jury CHARLIE BROWN then brought it on horne with a Not Guilty at trial in the 185th District Court despite a surviving eye witness the jury actually credited the accuseds alibi

+ The jury took only a few minutes to return an acquittal on

a family violence assault case tried by JAMES ALSTON and

AMANDA WEBB

+ Being on parole and workjng repos would seem to be a

no-fail recipe for trouble but KYLE VANCE saved just such a client after he was accused of running over the complainant

with his wrecker during a repossession in San Jacinto County

JOANNE MUSICK rode shotgun

TIE DEFUIER ott I

+ JED SILVERMAN got a motion to suppress granted in CCCL 15 after the arresting sheriffs deputy testified that Everyone I pullover is under arrest at the time I Stop them then resisted the prosecutions desperate attempts to re-educate

him HENRY NGUYEN sat second

+ DAVID flEISCHER heard a two-word verdict in CCCL 14 on August 28 2007

+ PAULA SILVA and NEAL DAVIS won a Not Guilty on a DWl in CCCL 6

+ Having just substituted in four days before trial and been denied a continuance MARY GRACE RUDEN and TODD LEFflER staged a major coup in winning a felony DWI in the 228 th

District COllrt

+ Arguing that the 1 hour and 45 minute detention was unreasonable in its scope and unjustified for a mere speeding stop tainting any subsequent consent to search if any had

been given MEKISHA WALKER MURRAY succeeded in having the veapon eventually found under the hood of the car suppressed in the 182nd District Court

+ The Supreme Court of the United States effectively ended Harris Countys ongoing efforts to enshrine a neon-lit King James Bible on the grounds of the old civil courthouse by denying certiorari in KAJ Staley v Harris County Ms

Staley represented by RANDALL KALlINEN prevailed at every level of the proceedings and weathered various threats to her life and being hung in effigy by some in favor of Stateshysponsored religion

FUTURE WARRIORS

+ October was a good month for RICK SOLIZ beginning with his success in obtaining a downward departure that resulted in probation for his client charged with perjury in the Western

District of Texas - Midland Division RICK took advantage of being in Dubyas hometown to argue and brief what was

essentially a Scooter Libby situation RICK also obtained trial date dismissals in CCCL 2 for telephone harassment and CCCL 13 for assault He wrapped up with a jury hung 5 -1

for Not Guilty on criminal trespass in CCCL 1 O RICK credits the priceless advice he gets from HCCLA members

CONGRATULATIONS TO ALL THESE WINNING WARRIORS

MARCH MICHAEL flOOD 7 Ibs 2 oz joined proud parents Tyler and Aimee Flood and 2 -year-old big brother Senator on October 30 2007

Doug and Kelly Murphy welcomed ELLIOTT MARSHALL MURPHY 8 Ibs 5 oz on November 142007

Todd and Kay Dupont added another little beauty to their bevy of belles when AVA KATHLEEN DUPONT bowed in on November 20 2007 weighing 6 Ibs 4 oz

THE DEFENDER 6

THEDEFENDER] WINTER 07

APPELLATE COURT SHUFFLE ON JURY SHUFFLES

Judicial Voodoo ON

Who Do the Aski gBy Troy McKinney

IN TREJOS V STATE __ SW3d _ _ 2007 WL 1500276 (TEX APP -- HOUSTON [1 ST OIST] 2007 PET REF D) [NOT DESIGNATED

FOR PUBLICATION] DEFENDANT CHALLENGED THE TRIAL COURTS GRANTING OF A SHUFFlE REQUESTED BY THE STATE AFTER

THE TRIAL JUDGE HAD QUESTIONED THE PANEl BUT BEFORE THE STATE HAD BEGUN ASKING ANY QUESTIONS IN REJECTING THE

DEFENDANTS CLAIM OF ERROR IN GRANTING THE SHUFFlE REQUESTED BY THE STATE A PANEl CONSISTING OF JUSTICES TAFT

ALCALA AND HANKS CONCLUDED

In a non ~capital case as here a motion to shuffle is timely as long as the motion is

m de before the State actually starts questioning the jurors in its portion of the

oir dire DeLeon v State 731 SW2d 948949 (Tex Crim App 1987)

MUiams v State 719 SW2d 573 577 (Tex Crim App 1986)

8iJJardJess othe enotb or detail othe trial courrs questiom to the

pn1we panel in a non-capital we the lniDht-line rule is that the

nwtion to shuffle the venire is timely when it is nuuJe bifore the

State begins questioni1lJJ the potential jurors See WiUiams 719 SW2d at 577 (holding motion to shuffle venire timely

although for forty minutes the trial judge introduced

herself and made introductory remarks identified the

attorneys pointed out the appellant and his co~

defendant Raymond Jackson discussed the division

of offenses into felonies and misdemeanors gave

examples of felonies of the first second and

third degree and the applicable penalties

discussed capital murder and its penalties

and the high fines now available in

cases of drug trafficking read the

instant indictment to the panel

told them the offense was

formerly known as aggravated

rape discussed jury strikes

the order of trial the charge

jury deliberations verdicts and

referred to certain principles as

presumption of innocence burden

of proof reasonable doubt etc)

THE DEFENDER 1lt 7

both

The States motion to shuffle was timely in this non-capital case because it was made before the State began its voir dire

See DeLeon 731 SW2d at 949 WiUiams 719 SW2d at 577 We hold that the trial court did not err by granting

the States motion to shuffle the jury panel

Trejos at 4 (Emphasis added)

Of course this bright-line rule was no so bright when a citizen claimed that the trial court erred in declining to allow him a

jury shuffle under the same circumstances that is after the trial judge had questioned the jurors but before the Stdte begdn its

questioning of the panel In Railsback v State 1 95 SW3d 473 (Tex App -- Houston [l st Dist] 2002 pet refd) a panel

of the same court consisting of Justices Taft Radack and Alcala (two of the three justices who decided Trejos) held

We cond ude that because of the nature and circumstances of the of the voir dire proced ure in this case the tridl court

did not err in denying appellantS request for a jury shuffle on grounds of timeliness In Wdliams which held that

voir dire did not commence until the State had begun its examination the trial judge did not engage in a detailed

questioning of the panel WiUiams 719 SW2d at 574 The trial judge introduced herself introduced the parties dnd

their attorneys explained that there were divisions between offenses and that there were different penalties that could

be applicable read the indictment discussed how the trial would work and defined various legal terms that were used

during the course of a tridl ld The trial judge in WiUiams then asked 3 questions 1) whether anyone recognized

the names of the parties or knew the facts of the case 2) whether anyone had questions as to what the State would

have to prove and 3) ifanyone felt that they could nOt give a punishment within the range allowed by law Id Here

the trial court went well beyond the mere introductory remarks and

began asking questions of the venire members traditionally asked

by the State and a defendant during voir dire proceedings For

all intents and purposes voir dire in this case began when the

trial court began asking questions of the panel that were no

longer related to introductory and administrative matters

and would have traditionally been asked by the parties

themselves

The divergent views of the import of the decision in WiUiams and

the divergent views of the brightness of the alleged bright-line rule are

facially and irreconcilably inconsistent This might be understandable if

these decisions were from different courts or even from different justices

on the same court but they are not The majority of the justices on

panels (Justices Taft and Alcala) are identical Conspicuously Trejos does not

even mention much less reconcile Railsback

The only difference between these two cases is which side won The real rule from these cases is that judges may give the

State relief and deny it to a Defendant under legally identical circumstances and the appellate courts are unlike ly to provide any

relief when the Defendant complains of the error and the inconsistency The real rule from these cases is that appellate justices

will likely view prior cases in whatever way is necessary to affirm a conviction and it matters not that they have said something

different in prior years and cases

Inconsistent decisions just do nOt get much worse than these two decisions Maybe if we shine some light on these kinds of

judicial inconsistencies these bright-line rules will get applied equdlly in the future One can only hope though the past provides

little basis for validating the likelihood that such hope will become reality

W Troy McKinney is a shareholder in Schneider amp McKinney Pc He is one of three lawyers in Texas who is Board Certified in DWI

Defense by the National College for DUI Defense where he is a Regent McKinney is a past President of the HCClA He teaches

throughout the country_ is regularly published and is the coauthor of Texas Drunk Driving law (lexis 4th Ed) McKinney maintains an

active trial and appellate practice

THE DEFENDER -(( 8

THEDEFENDER] WINTER 07

IN LI GHT OF RECENT COURT DECISIONS AND THE ABA GUIDEliNES REGARDING THE IMPORTANC EOF DISCOVERING ALL REASONABLY

AVAILABLE MITIGATING EVIDENCE ON BEHALF OF ADEFENDANT CRIMINAL ATTORNEYS ARE FINDING IT ANECESSITY TO ENLIST

MITIGATION EXPERTS TO HElP AT THE VERY LEAST IN THE PUNISHMENT PHASE OF THEIR TRIALS

THE MITIGATION SPECIALIST It appears now that judges will expect a comprehensive and

reliable mental health evaluation to be conducted in not only

capital cases but in criminal felony cases as well Mitigation

speciJlists who have experience as well as graduate degrees

in Social Work or Psychology possess the skills insight and

abilities to complete sllch evaluations and interview defendants

and their significant others in such a way that they obtain

information the defendant and others may be unlikely to share

with the attorney They also have the expertise to uncover

and recognize mental illness or retardation that the client has

gone to great lengths to hide The specialistS interviewing

techniques might elicit sensitive or even humiliating evidence

that the defendant has never shared before Its obvious that

these defendants would not be where they are if they were

adequate communicators and had good relationship skills

Mitigation specialists can see beyond these deficits and get the

information required for a comprehensive defense Depraved

conduct does not develop out of thin air There are causes

and causes found lead to evidence in mitigation Counsel is

going to need a theory that will be effective in both the guilt

and penalty phases of the trial Your mitigation specialist can

help define that theory

THE DEFENDANTS BIOLOGY AND ENVIRONMENT When looking at what might constitute mitigation in capital

as well as felony cases attorneys can turn to mental health

practitioners to understand how dysfunctional human behavior

must have contributed to this mess in which the defendant

finds himself The male pronoun is appropriate because these

defendants are predominantly male However the theory

applies to women as well Their gender certainly doesnt

provide immunity from childhood abuse and neglect

THE DEFENDER -( B

It is common for the defendant to be a young male in

the range of 17 to 29 years of age and no one should be

surprised by this The background of young males raised

in poverty abuse and neglect fosters violence and emotional

immaturity These young men are chronologically of legal

age but emotionally they may be operating at much younger

developmental stages This is evidenced by their short attention

span their poor decision- making abilities their lack of awareness

of the basic rights and boundaries of others their explosive

entry into emotions and their tendency to blame others for

their problems - all of which can be documented by records

and interviews

Another telltale sign of emotional immaturity is their persistent

need to protect their abusers usually parents or grandparents

Some will even go so far as to be protective of former foster

parents Children (and psychologically these defendants are

still children) desperately want to make their caretakers seem

loving and caring They do this to avoid having to acknowledge

that those persons who were supposed to protect them actually

were the people they should have feared the most That level

of sel fish ness and lack of empathy in a caretaker is very hard

for a child to absorb The terror inherent in that knowledge

is unmanageable Blaming the adult is too painful Thats why

children take responsibility for things they couldnt possibly

have foreseen or caused or prevented When the time comes to

discuss with the defendant the mitigating reasons the attorneys

plan to use in his defense he may be very distrustful This is

when he must embrace the reality about his parents andor

caretakers The mitigation specialist can help him separate the

act of loving ones children from the job of parenting them

There is a widely recognized psychological theory that explains

human development over the life span and is taught as basic

theory to Psych 101 students It was framed by renowned

20th century psychoanalyst Erik Erikson (1902-1994) This

theory divides the life span into stages and attributes a specific

developmental task to each stage The tasks required for healthy

development through childhood and early adolescence include

trust autonomy initiative identity and individuality When

one or more of these tasks are not successfully accomplished

in one stage the child continues to grow chronologically but

his emotional development is damaged In the case of severe

abuse andor neglect its very common for more than one

developmental stage to be derailed Abuse that begins early

in childhood such as in infancy damages the childs ability to

discern empathy A toddler (age 2-4) is famous for imitation

If the toddlers caretakers are smoking dope and never leave

the sofa except to hit each other or conduct a drug sale the

jury needs to appreciate what they would have imitated Four

to six year olds are developing a moral compass self-es teem

and a sense of group interaction If the jury hears that the

defendant was left alone for long periods of time during his

childhood they can recognize how the defendants sense of

self became profoundly skewed Six- to twelve-year- olds are

focused on skill building and concrete operations - things

they wont learn if they are not attending school regularly

or able to absorb whats being taught Early adolescence (up

to age 18) is famous for peer pressure and the need to lit in

vith same age peers If the only examples of peer relationships

documented in their caretakers and in their neighborhoods are

gang members criminal associations or tricks the jury will

empathize vith their choice of fiiends Later adolescence (up

to age 22-25) involves identity formation The good news here

lies in their emotional immaturity Many of these young men are

still stuck in a chronologically inappropriate developmental stage

Therefore their identity is still up for grabs The jury must hear

that intervention at this stage can truly be life changing

There are so many young men from abusive poverty stricken

neglectful family systems about whom one might say There

but for the grace of God go 1 Its probably true that none

of us gets out of childhood without a scratch Everyone enters

adulthood Jacking something because no parents are capable of

doing their job perfectly However the problems commonly

seen in criminal defendants usually stem from more bad luck

than one person ought to experience Psychological theory

indicates that development is a product of inherited factors life

experiences personal choices societal expectations and chance

These defendants are victims of thei r biology and genealogy

Unfortunately for them these are tllings over which they have no

control The jury wiU value hearing what the defendant was exposed

to in his childhood Heres a ust of the most common things

Drug addicted caretakers

Drug dealing caretakers

Prostiultion as a career choice in caretakers

Criminal activity used as a means to pay the bills

Mental illness andor acute emotional disturbance

in caretakers

Severe poverty

Lack of supervision

Sporadic school attendance

Frequent changes in caretakers

Whereabouts of biological parents unknown

Physical abuse of self andor siblings

Sexual abuse of self andor siblings

Numerous changes in residence

The jury would certainly have been moved to hear that while

working at Childrens Protective Services I had a case in

which an elementary school aged child came home to find his

familys apartment empty His mother failed to mention she

was moving that day True story

DISEASE ANDOR INJURY The mitigation specialistS research into a defendants

medical history may reveal injury or disease that the medical

establishment readily acknowledges causes some degree of

neurological damage or disturbance The injury may in fact

have been caused by physical andor sexual abuse of the

child Testimony regarding this history from a medical expert

can be gripping to the jury and give even just one member

justification for lenience

THERE ARE SO MANY YOUNG MEN FROM

ABUSIVE POVERTY STRICKEN NEGLECTFUL

FAMILY SYSTEMS ABOUT WHOM ONE MIGHT

SAY THERE BUT FOR THE GRACE OF GOD GO

I ITS PROBABLY TRUE THAT NONE OF US GETS

OUT OF CHILDHOOD WITHOUT A SCRATCH

THE DEFENDER 1lt 11

THE MOST COMMON ADULT DIAGNOSES FOUND IN THESE DEFENDANTS INCLUDE

MOOD DISORDERS (DEPRESSION ANXIETY ETC) POST TRAUMATIC STRESS

DISORDER AND DISSOCIATIVE ADJUSTMENT AND PERSONALITY DISORDERS

SUBSTANCE ABUSE AND DEPENDENCE Drug abuse and dependence can also explain what mitigates

rhe defendants criminal actions The most commonly abused

drugs include alcohol stimulants marijuana and opioids

Whar follows are some basic details of what the jury probably

doesnt know about the effects of these commonly used

drugs

1 ALCOHOL Alcohol affects practically every organ in the body and alters

the activity of most major neurochemicals It produces a dose

dependent decrease in cognitive and motor functioning As Blood Alcohol Concentration (BAC) rises the impairment increases People rarely look obviously intoxicated at BAC

levels that produce impairment One of the most pronounced

effects of alcohol is on divided attention tasks

2 STIMULANTS It is well known that tolerance to stimulants develops rapidly

Evidence exists that prolonged use of stimulants seems to

bring about sustained neurophysiologic change in the brain This physical damage to the cells of the brain actually affects

how the brain functions Chronic use can produce toxic

psychosis characterized by confused disorganized behavior

paranoia hallucinations and delusions

3 MARIJUANA Short-term memory and the ability to make emergency

decisions are greatly impaired by marijuana use Impairment

of coordination judgment and perception of time can last

well past the feeling of being high produced by marijuana

Impairment of cognitive functions such as judgment and

problem solving can lead to poor decision-making with regard

to present and future outcomes

40PIOIDS Opioids are distributed throughout the body including the central nervous system where they have a psychoactive effect

The primary use of opioids is as an analgesic - a pain reliever The bio-behavioral effects include respiratory depression nausea impaired memory and attention There may be little or no observable impairment in someone intoxicated on opiates

THE DEFENDER 12

SElECTING EXPERT WITNESSES The mitigation specialist works with counsel to develop rhe

explanarion rhat will demonstrate and support rhe diagnosis

presented in court by the Expert Witness Their research

underscores the fact that abuse and neglect contribute to

psychological and mental disorders This constitutes a basis

for minimizing ones culpability in high stress situations such

as the commission ofa violent crime The most common adult

diagnoses found in these defendants include Mood Disorders

(depression anxiety etc) Post Traumatic Stress Disorder and

Dissociative Adjustment and Personality Disorders Research

into their history often uncovers previous childhood diagnoses

ofAttention Deficit Hyperactivity Disorder Conduct Disorder

Oppositional Defiant Disorder and learning disabilities as

well Of course its common to find a history of physical

and sexual abuse of rhe defendant andor his siblings What

the jury needs to hear is that these conditions could often

be improved with counseling and a structured environment

Time and again efforts at intervention have been made by

Childrens Protective Services Texas Youth Commission or

other agencies Often services have been offered or even put

in place However the services may not have been sought out

followed through on or completed by the caretakers Many

times there is clear evidence of a Treatment Plan having

been developed that was never implemented by the caregivers

(who had their own deficits) or by the agency staff charged

with insuring that the services were delivered This is another

situation over which the defendant had no control as a child

This information supports a case for leniency and needs to be

shared with the jury

To gather the information needed to chronicle the

developmental problems in a defendants childhood the

mitigation specialist uses interviews with him family members

willing to make themselves available and records such as

Childrens Protective Services Texas Youth Commission

Texas Department of Criminal Justice school districts and

whatever else can be found Its not uncommon for records

collection to extend to other states or even other countries

Its important to go back and look at the specific details of

charges made against the defendant especially in juvenile

situations The events may actually be a lot less offensive

than they are made to sound Picture a defendant who at

age 10 has been charged in a juvenile case with assaulting a

police officer who was trying to take him into custody When

looking at the narratives describing the situation from the

CPS perspective the explanation was right there in black and

white He didnt know where the police were taking him

He watched other officers take two of his siblings inside a

building and they didnt come out He kept saying he wanted

to go home What he didnt know was that his parents had

already refused to come and get them It is imperative that the

jury hear such a story

The mitigation specialist is helpful in bringing the Expert

Witness and the evidence together Their mental health

background will be particularly significant in helping counsel

decide who the best experts will be Your mitigation specialist

can help find experts who are willing and able to testify to only

what the defense needs and not be inclined to take control of

the situation

Armed with all of the information obtained by the mitigation

specialist the attorney has a variety of options regarding how

to use the information The attorney can use it to

Seek a plea agreement

Select a jury sensitive to the issues relative to the case

Elicit supportjve testimony during cross examination of

witnesses

Present a compelling story at punishment phase

In the effort to find a settlement certainly attorneys dont

want to unnecessarily reveal details of mitigation evidence

before trial However the duty to seek a plea for life must be

at the center of the defense teams goals in capital cases That

evidence will come trom your mitigation specialists research

With the decision in Miller vs Dretke mitigation is becoming

important in all felony cases Familiarize yourself with

mitigation specialists

THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT

MITIGATION IS NOT AN EXCUSE ITS AN EXPLANATION

E

THE DEFENDER 13

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

+ Two acquittals in a row for TODD OVERSTREET on a 14 OWl in CCCL 9 and a 14 OWl in CCCL 17 So much for the infallibility of the lntoxilyzer

+ ROBB CZAR FICKMAN won a no-bill for his client charged with aggravated assault for allegedly running over his [the clients] estranged wifes leg

+ Extensive trial preparation and consultation with experts

rewarded AMANDA DOWNING with a dismissal of injury to a child charges against her client in the 178 th District COllrt

+ Federal Public Defender BRENT NEWTON heard Not Guilry in Judge Hittners court when the jury believed his client over four police officers concerning the alleged violent struggle

+ BOB LOPER persuaded the jury to acquit his client of capital murder in the 228 th District Court and convict on the lesser of felony murder then assess punishment at 30 years in prison

+ Sweet victory fell to KENNETH MCCOY when the jury returned a Not Guilty on a murder case in the 232 nd District Court

+ Rebounding from the jurys convictjon of his client for

intoxication assault and intoxication manslaughter SAM CAMMACK scored the minimum probated sentences and a negative finding on the deadly weapon issue despite a prior OWl conviction

+ After MAC SECREST reversed a murder conviction with 45shy

year sentence DANNY EASTERLING [not the original lawyer] retried the case and ended up with a 20-year sentence on a manslaughter conviction saving his client 25 aggravated

years JOANNE MUSICK helped pick the jury

+ On a motion to quash the indictment JOSEPH R WILLIE obtained a hard-fought dismissal of aggravated perjury charges the Jackson County DA filed against his client simply because he was convicted after testifying in his own behalf [We assume that Jackson Counry is equally diligent in filing aggravated perjury charges against its own witnesses whenever an accused is acquitted]

+ DAVID KIAnA won an acquittal for his client in CCCL 7 on a DVl PCS charge and in the process earned compliments on his skill and professionalism from the prosecutor

+ Fast becoming the scourge ofthe Victoria County prosecution

TODD DUPONT scored two Not Guilry verdicts on aggravated assaults in the same day

+ JUANITA BARNER won an acquittal on interference with a 911 call in CCCL 2 even though the complainant was a Harris Counry deput) [albeit one who never wanted the charges to be filed and who had to be threatened with contempt to testi fy]

+ That same day Juanitas mentor VIVIAN KING secured a dismissal for her juvenile client charged with aggravated assault in the 313 th District Court

+ Following two days of deliberations and a defense-requested

Allen charge ALVIN NUNNERY walked off with a Not Guilty on a murder in the 35JSt District Court

+ A total refusal OWl brought a happy ending to NATHANIEL TARLOWS first jury trial in CCCL 11 after only 30 minutes

of deliberation NATHANIEL thanks TROY MCKINNEY and ROBB FICKMAN for all their guidance and ideas

+ First beating a capital charge down to straight murder at the

grand jury CHARLIE BROWN then brought it on horne with a Not Guilty at trial in the 185th District Court despite a surviving eye witness the jury actually credited the accuseds alibi

+ The jury took only a few minutes to return an acquittal on

a family violence assault case tried by JAMES ALSTON and

AMANDA WEBB

+ Being on parole and workjng repos would seem to be a

no-fail recipe for trouble but KYLE VANCE saved just such a client after he was accused of running over the complainant

with his wrecker during a repossession in San Jacinto County

JOANNE MUSICK rode shotgun

TIE DEFUIER ott I

+ JED SILVERMAN got a motion to suppress granted in CCCL 15 after the arresting sheriffs deputy testified that Everyone I pullover is under arrest at the time I Stop them then resisted the prosecutions desperate attempts to re-educate

him HENRY NGUYEN sat second

+ DAVID flEISCHER heard a two-word verdict in CCCL 14 on August 28 2007

+ PAULA SILVA and NEAL DAVIS won a Not Guilty on a DWl in CCCL 6

+ Having just substituted in four days before trial and been denied a continuance MARY GRACE RUDEN and TODD LEFflER staged a major coup in winning a felony DWI in the 228 th

District COllrt

+ Arguing that the 1 hour and 45 minute detention was unreasonable in its scope and unjustified for a mere speeding stop tainting any subsequent consent to search if any had

been given MEKISHA WALKER MURRAY succeeded in having the veapon eventually found under the hood of the car suppressed in the 182nd District Court

+ The Supreme Court of the United States effectively ended Harris Countys ongoing efforts to enshrine a neon-lit King James Bible on the grounds of the old civil courthouse by denying certiorari in KAJ Staley v Harris County Ms

Staley represented by RANDALL KALlINEN prevailed at every level of the proceedings and weathered various threats to her life and being hung in effigy by some in favor of Stateshysponsored religion

FUTURE WARRIORS

+ October was a good month for RICK SOLIZ beginning with his success in obtaining a downward departure that resulted in probation for his client charged with perjury in the Western

District of Texas - Midland Division RICK took advantage of being in Dubyas hometown to argue and brief what was

essentially a Scooter Libby situation RICK also obtained trial date dismissals in CCCL 2 for telephone harassment and CCCL 13 for assault He wrapped up with a jury hung 5 -1

for Not Guilty on criminal trespass in CCCL 1 O RICK credits the priceless advice he gets from HCCLA members

CONGRATULATIONS TO ALL THESE WINNING WARRIORS

MARCH MICHAEL flOOD 7 Ibs 2 oz joined proud parents Tyler and Aimee Flood and 2 -year-old big brother Senator on October 30 2007

Doug and Kelly Murphy welcomed ELLIOTT MARSHALL MURPHY 8 Ibs 5 oz on November 142007

Todd and Kay Dupont added another little beauty to their bevy of belles when AVA KATHLEEN DUPONT bowed in on November 20 2007 weighing 6 Ibs 4 oz

THE DEFENDER 6

THEDEFENDER] WINTER 07

APPELLATE COURT SHUFFLE ON JURY SHUFFLES

Judicial Voodoo ON

Who Do the Aski gBy Troy McKinney

IN TREJOS V STATE __ SW3d _ _ 2007 WL 1500276 (TEX APP -- HOUSTON [1 ST OIST] 2007 PET REF D) [NOT DESIGNATED

FOR PUBLICATION] DEFENDANT CHALLENGED THE TRIAL COURTS GRANTING OF A SHUFFlE REQUESTED BY THE STATE AFTER

THE TRIAL JUDGE HAD QUESTIONED THE PANEl BUT BEFORE THE STATE HAD BEGUN ASKING ANY QUESTIONS IN REJECTING THE

DEFENDANTS CLAIM OF ERROR IN GRANTING THE SHUFFlE REQUESTED BY THE STATE A PANEl CONSISTING OF JUSTICES TAFT

ALCALA AND HANKS CONCLUDED

In a non ~capital case as here a motion to shuffle is timely as long as the motion is

m de before the State actually starts questioning the jurors in its portion of the

oir dire DeLeon v State 731 SW2d 948949 (Tex Crim App 1987)

MUiams v State 719 SW2d 573 577 (Tex Crim App 1986)

8iJJardJess othe enotb or detail othe trial courrs questiom to the

pn1we panel in a non-capital we the lniDht-line rule is that the

nwtion to shuffle the venire is timely when it is nuuJe bifore the

State begins questioni1lJJ the potential jurors See WiUiams 719 SW2d at 577 (holding motion to shuffle venire timely

although for forty minutes the trial judge introduced

herself and made introductory remarks identified the

attorneys pointed out the appellant and his co~

defendant Raymond Jackson discussed the division

of offenses into felonies and misdemeanors gave

examples of felonies of the first second and

third degree and the applicable penalties

discussed capital murder and its penalties

and the high fines now available in

cases of drug trafficking read the

instant indictment to the panel

told them the offense was

formerly known as aggravated

rape discussed jury strikes

the order of trial the charge

jury deliberations verdicts and

referred to certain principles as

presumption of innocence burden

of proof reasonable doubt etc)

THE DEFENDER 1lt 7

both

The States motion to shuffle was timely in this non-capital case because it was made before the State began its voir dire

See DeLeon 731 SW2d at 949 WiUiams 719 SW2d at 577 We hold that the trial court did not err by granting

the States motion to shuffle the jury panel

Trejos at 4 (Emphasis added)

Of course this bright-line rule was no so bright when a citizen claimed that the trial court erred in declining to allow him a

jury shuffle under the same circumstances that is after the trial judge had questioned the jurors but before the Stdte begdn its

questioning of the panel In Railsback v State 1 95 SW3d 473 (Tex App -- Houston [l st Dist] 2002 pet refd) a panel

of the same court consisting of Justices Taft Radack and Alcala (two of the three justices who decided Trejos) held

We cond ude that because of the nature and circumstances of the of the voir dire proced ure in this case the tridl court

did not err in denying appellantS request for a jury shuffle on grounds of timeliness In Wdliams which held that

voir dire did not commence until the State had begun its examination the trial judge did not engage in a detailed

questioning of the panel WiUiams 719 SW2d at 574 The trial judge introduced herself introduced the parties dnd

their attorneys explained that there were divisions between offenses and that there were different penalties that could

be applicable read the indictment discussed how the trial would work and defined various legal terms that were used

during the course of a tridl ld The trial judge in WiUiams then asked 3 questions 1) whether anyone recognized

the names of the parties or knew the facts of the case 2) whether anyone had questions as to what the State would

have to prove and 3) ifanyone felt that they could nOt give a punishment within the range allowed by law Id Here

the trial court went well beyond the mere introductory remarks and

began asking questions of the venire members traditionally asked

by the State and a defendant during voir dire proceedings For

all intents and purposes voir dire in this case began when the

trial court began asking questions of the panel that were no

longer related to introductory and administrative matters

and would have traditionally been asked by the parties

themselves

The divergent views of the import of the decision in WiUiams and

the divergent views of the brightness of the alleged bright-line rule are

facially and irreconcilably inconsistent This might be understandable if

these decisions were from different courts or even from different justices

on the same court but they are not The majority of the justices on

panels (Justices Taft and Alcala) are identical Conspicuously Trejos does not

even mention much less reconcile Railsback

The only difference between these two cases is which side won The real rule from these cases is that judges may give the

State relief and deny it to a Defendant under legally identical circumstances and the appellate courts are unlike ly to provide any

relief when the Defendant complains of the error and the inconsistency The real rule from these cases is that appellate justices

will likely view prior cases in whatever way is necessary to affirm a conviction and it matters not that they have said something

different in prior years and cases

Inconsistent decisions just do nOt get much worse than these two decisions Maybe if we shine some light on these kinds of

judicial inconsistencies these bright-line rules will get applied equdlly in the future One can only hope though the past provides

little basis for validating the likelihood that such hope will become reality

W Troy McKinney is a shareholder in Schneider amp McKinney Pc He is one of three lawyers in Texas who is Board Certified in DWI

Defense by the National College for DUI Defense where he is a Regent McKinney is a past President of the HCClA He teaches

throughout the country_ is regularly published and is the coauthor of Texas Drunk Driving law (lexis 4th Ed) McKinney maintains an

active trial and appellate practice

THE DEFENDER -(( 8

THEDEFENDER] WINTER 07

IN LI GHT OF RECENT COURT DECISIONS AND THE ABA GUIDEliNES REGARDING THE IMPORTANC EOF DISCOVERING ALL REASONABLY

AVAILABLE MITIGATING EVIDENCE ON BEHALF OF ADEFENDANT CRIMINAL ATTORNEYS ARE FINDING IT ANECESSITY TO ENLIST

MITIGATION EXPERTS TO HElP AT THE VERY LEAST IN THE PUNISHMENT PHASE OF THEIR TRIALS

THE MITIGATION SPECIALIST It appears now that judges will expect a comprehensive and

reliable mental health evaluation to be conducted in not only

capital cases but in criminal felony cases as well Mitigation

speciJlists who have experience as well as graduate degrees

in Social Work or Psychology possess the skills insight and

abilities to complete sllch evaluations and interview defendants

and their significant others in such a way that they obtain

information the defendant and others may be unlikely to share

with the attorney They also have the expertise to uncover

and recognize mental illness or retardation that the client has

gone to great lengths to hide The specialistS interviewing

techniques might elicit sensitive or even humiliating evidence

that the defendant has never shared before Its obvious that

these defendants would not be where they are if they were

adequate communicators and had good relationship skills

Mitigation specialists can see beyond these deficits and get the

information required for a comprehensive defense Depraved

conduct does not develop out of thin air There are causes

and causes found lead to evidence in mitigation Counsel is

going to need a theory that will be effective in both the guilt

and penalty phases of the trial Your mitigation specialist can

help define that theory

THE DEFENDANTS BIOLOGY AND ENVIRONMENT When looking at what might constitute mitigation in capital

as well as felony cases attorneys can turn to mental health

practitioners to understand how dysfunctional human behavior

must have contributed to this mess in which the defendant

finds himself The male pronoun is appropriate because these

defendants are predominantly male However the theory

applies to women as well Their gender certainly doesnt

provide immunity from childhood abuse and neglect

THE DEFENDER -( B

It is common for the defendant to be a young male in

the range of 17 to 29 years of age and no one should be

surprised by this The background of young males raised

in poverty abuse and neglect fosters violence and emotional

immaturity These young men are chronologically of legal

age but emotionally they may be operating at much younger

developmental stages This is evidenced by their short attention

span their poor decision- making abilities their lack of awareness

of the basic rights and boundaries of others their explosive

entry into emotions and their tendency to blame others for

their problems - all of which can be documented by records

and interviews

Another telltale sign of emotional immaturity is their persistent

need to protect their abusers usually parents or grandparents

Some will even go so far as to be protective of former foster

parents Children (and psychologically these defendants are

still children) desperately want to make their caretakers seem

loving and caring They do this to avoid having to acknowledge

that those persons who were supposed to protect them actually

were the people they should have feared the most That level

of sel fish ness and lack of empathy in a caretaker is very hard

for a child to absorb The terror inherent in that knowledge

is unmanageable Blaming the adult is too painful Thats why

children take responsibility for things they couldnt possibly

have foreseen or caused or prevented When the time comes to

discuss with the defendant the mitigating reasons the attorneys

plan to use in his defense he may be very distrustful This is

when he must embrace the reality about his parents andor

caretakers The mitigation specialist can help him separate the

act of loving ones children from the job of parenting them

There is a widely recognized psychological theory that explains

human development over the life span and is taught as basic

theory to Psych 101 students It was framed by renowned

20th century psychoanalyst Erik Erikson (1902-1994) This

theory divides the life span into stages and attributes a specific

developmental task to each stage The tasks required for healthy

development through childhood and early adolescence include

trust autonomy initiative identity and individuality When

one or more of these tasks are not successfully accomplished

in one stage the child continues to grow chronologically but

his emotional development is damaged In the case of severe

abuse andor neglect its very common for more than one

developmental stage to be derailed Abuse that begins early

in childhood such as in infancy damages the childs ability to

discern empathy A toddler (age 2-4) is famous for imitation

If the toddlers caretakers are smoking dope and never leave

the sofa except to hit each other or conduct a drug sale the

jury needs to appreciate what they would have imitated Four

to six year olds are developing a moral compass self-es teem

and a sense of group interaction If the jury hears that the

defendant was left alone for long periods of time during his

childhood they can recognize how the defendants sense of

self became profoundly skewed Six- to twelve-year- olds are

focused on skill building and concrete operations - things

they wont learn if they are not attending school regularly

or able to absorb whats being taught Early adolescence (up

to age 18) is famous for peer pressure and the need to lit in

vith same age peers If the only examples of peer relationships

documented in their caretakers and in their neighborhoods are

gang members criminal associations or tricks the jury will

empathize vith their choice of fiiends Later adolescence (up

to age 22-25) involves identity formation The good news here

lies in their emotional immaturity Many of these young men are

still stuck in a chronologically inappropriate developmental stage

Therefore their identity is still up for grabs The jury must hear

that intervention at this stage can truly be life changing

There are so many young men from abusive poverty stricken

neglectful family systems about whom one might say There

but for the grace of God go 1 Its probably true that none

of us gets out of childhood without a scratch Everyone enters

adulthood Jacking something because no parents are capable of

doing their job perfectly However the problems commonly

seen in criminal defendants usually stem from more bad luck

than one person ought to experience Psychological theory

indicates that development is a product of inherited factors life

experiences personal choices societal expectations and chance

These defendants are victims of thei r biology and genealogy

Unfortunately for them these are tllings over which they have no

control The jury wiU value hearing what the defendant was exposed

to in his childhood Heres a ust of the most common things

Drug addicted caretakers

Drug dealing caretakers

Prostiultion as a career choice in caretakers

Criminal activity used as a means to pay the bills

Mental illness andor acute emotional disturbance

in caretakers

Severe poverty

Lack of supervision

Sporadic school attendance

Frequent changes in caretakers

Whereabouts of biological parents unknown

Physical abuse of self andor siblings

Sexual abuse of self andor siblings

Numerous changes in residence

The jury would certainly have been moved to hear that while

working at Childrens Protective Services I had a case in

which an elementary school aged child came home to find his

familys apartment empty His mother failed to mention she

was moving that day True story

DISEASE ANDOR INJURY The mitigation specialistS research into a defendants

medical history may reveal injury or disease that the medical

establishment readily acknowledges causes some degree of

neurological damage or disturbance The injury may in fact

have been caused by physical andor sexual abuse of the

child Testimony regarding this history from a medical expert

can be gripping to the jury and give even just one member

justification for lenience

THERE ARE SO MANY YOUNG MEN FROM

ABUSIVE POVERTY STRICKEN NEGLECTFUL

FAMILY SYSTEMS ABOUT WHOM ONE MIGHT

SAY THERE BUT FOR THE GRACE OF GOD GO

I ITS PROBABLY TRUE THAT NONE OF US GETS

OUT OF CHILDHOOD WITHOUT A SCRATCH

THE DEFENDER 1lt 11

THE MOST COMMON ADULT DIAGNOSES FOUND IN THESE DEFENDANTS INCLUDE

MOOD DISORDERS (DEPRESSION ANXIETY ETC) POST TRAUMATIC STRESS

DISORDER AND DISSOCIATIVE ADJUSTMENT AND PERSONALITY DISORDERS

SUBSTANCE ABUSE AND DEPENDENCE Drug abuse and dependence can also explain what mitigates

rhe defendants criminal actions The most commonly abused

drugs include alcohol stimulants marijuana and opioids

Whar follows are some basic details of what the jury probably

doesnt know about the effects of these commonly used

drugs

1 ALCOHOL Alcohol affects practically every organ in the body and alters

the activity of most major neurochemicals It produces a dose

dependent decrease in cognitive and motor functioning As Blood Alcohol Concentration (BAC) rises the impairment increases People rarely look obviously intoxicated at BAC

levels that produce impairment One of the most pronounced

effects of alcohol is on divided attention tasks

2 STIMULANTS It is well known that tolerance to stimulants develops rapidly

Evidence exists that prolonged use of stimulants seems to

bring about sustained neurophysiologic change in the brain This physical damage to the cells of the brain actually affects

how the brain functions Chronic use can produce toxic

psychosis characterized by confused disorganized behavior

paranoia hallucinations and delusions

3 MARIJUANA Short-term memory and the ability to make emergency

decisions are greatly impaired by marijuana use Impairment

of coordination judgment and perception of time can last

well past the feeling of being high produced by marijuana

Impairment of cognitive functions such as judgment and

problem solving can lead to poor decision-making with regard

to present and future outcomes

40PIOIDS Opioids are distributed throughout the body including the central nervous system where they have a psychoactive effect

The primary use of opioids is as an analgesic - a pain reliever The bio-behavioral effects include respiratory depression nausea impaired memory and attention There may be little or no observable impairment in someone intoxicated on opiates

THE DEFENDER 12

SElECTING EXPERT WITNESSES The mitigation specialist works with counsel to develop rhe

explanarion rhat will demonstrate and support rhe diagnosis

presented in court by the Expert Witness Their research

underscores the fact that abuse and neglect contribute to

psychological and mental disorders This constitutes a basis

for minimizing ones culpability in high stress situations such

as the commission ofa violent crime The most common adult

diagnoses found in these defendants include Mood Disorders

(depression anxiety etc) Post Traumatic Stress Disorder and

Dissociative Adjustment and Personality Disorders Research

into their history often uncovers previous childhood diagnoses

ofAttention Deficit Hyperactivity Disorder Conduct Disorder

Oppositional Defiant Disorder and learning disabilities as

well Of course its common to find a history of physical

and sexual abuse of rhe defendant andor his siblings What

the jury needs to hear is that these conditions could often

be improved with counseling and a structured environment

Time and again efforts at intervention have been made by

Childrens Protective Services Texas Youth Commission or

other agencies Often services have been offered or even put

in place However the services may not have been sought out

followed through on or completed by the caretakers Many

times there is clear evidence of a Treatment Plan having

been developed that was never implemented by the caregivers

(who had their own deficits) or by the agency staff charged

with insuring that the services were delivered This is another

situation over which the defendant had no control as a child

This information supports a case for leniency and needs to be

shared with the jury

To gather the information needed to chronicle the

developmental problems in a defendants childhood the

mitigation specialist uses interviews with him family members

willing to make themselves available and records such as

Childrens Protective Services Texas Youth Commission

Texas Department of Criminal Justice school districts and

whatever else can be found Its not uncommon for records

collection to extend to other states or even other countries

Its important to go back and look at the specific details of

charges made against the defendant especially in juvenile

situations The events may actually be a lot less offensive

than they are made to sound Picture a defendant who at

age 10 has been charged in a juvenile case with assaulting a

police officer who was trying to take him into custody When

looking at the narratives describing the situation from the

CPS perspective the explanation was right there in black and

white He didnt know where the police were taking him

He watched other officers take two of his siblings inside a

building and they didnt come out He kept saying he wanted

to go home What he didnt know was that his parents had

already refused to come and get them It is imperative that the

jury hear such a story

The mitigation specialist is helpful in bringing the Expert

Witness and the evidence together Their mental health

background will be particularly significant in helping counsel

decide who the best experts will be Your mitigation specialist

can help find experts who are willing and able to testify to only

what the defense needs and not be inclined to take control of

the situation

Armed with all of the information obtained by the mitigation

specialist the attorney has a variety of options regarding how

to use the information The attorney can use it to

Seek a plea agreement

Select a jury sensitive to the issues relative to the case

Elicit supportjve testimony during cross examination of

witnesses

Present a compelling story at punishment phase

In the effort to find a settlement certainly attorneys dont

want to unnecessarily reveal details of mitigation evidence

before trial However the duty to seek a plea for life must be

at the center of the defense teams goals in capital cases That

evidence will come trom your mitigation specialists research

With the decision in Miller vs Dretke mitigation is becoming

important in all felony cases Familiarize yourself with

mitigation specialists

THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT

MITIGATION IS NOT AN EXCUSE ITS AN EXPLANATION

E

THE DEFENDER 13

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

+ JED SILVERMAN got a motion to suppress granted in CCCL 15 after the arresting sheriffs deputy testified that Everyone I pullover is under arrest at the time I Stop them then resisted the prosecutions desperate attempts to re-educate

him HENRY NGUYEN sat second

+ DAVID flEISCHER heard a two-word verdict in CCCL 14 on August 28 2007

+ PAULA SILVA and NEAL DAVIS won a Not Guilty on a DWl in CCCL 6

+ Having just substituted in four days before trial and been denied a continuance MARY GRACE RUDEN and TODD LEFflER staged a major coup in winning a felony DWI in the 228 th

District COllrt

+ Arguing that the 1 hour and 45 minute detention was unreasonable in its scope and unjustified for a mere speeding stop tainting any subsequent consent to search if any had

been given MEKISHA WALKER MURRAY succeeded in having the veapon eventually found under the hood of the car suppressed in the 182nd District Court

+ The Supreme Court of the United States effectively ended Harris Countys ongoing efforts to enshrine a neon-lit King James Bible on the grounds of the old civil courthouse by denying certiorari in KAJ Staley v Harris County Ms

Staley represented by RANDALL KALlINEN prevailed at every level of the proceedings and weathered various threats to her life and being hung in effigy by some in favor of Stateshysponsored religion

FUTURE WARRIORS

+ October was a good month for RICK SOLIZ beginning with his success in obtaining a downward departure that resulted in probation for his client charged with perjury in the Western

District of Texas - Midland Division RICK took advantage of being in Dubyas hometown to argue and brief what was

essentially a Scooter Libby situation RICK also obtained trial date dismissals in CCCL 2 for telephone harassment and CCCL 13 for assault He wrapped up with a jury hung 5 -1

for Not Guilty on criminal trespass in CCCL 1 O RICK credits the priceless advice he gets from HCCLA members

CONGRATULATIONS TO ALL THESE WINNING WARRIORS

MARCH MICHAEL flOOD 7 Ibs 2 oz joined proud parents Tyler and Aimee Flood and 2 -year-old big brother Senator on October 30 2007

Doug and Kelly Murphy welcomed ELLIOTT MARSHALL MURPHY 8 Ibs 5 oz on November 142007

Todd and Kay Dupont added another little beauty to their bevy of belles when AVA KATHLEEN DUPONT bowed in on November 20 2007 weighing 6 Ibs 4 oz

THE DEFENDER 6

THEDEFENDER] WINTER 07

APPELLATE COURT SHUFFLE ON JURY SHUFFLES

Judicial Voodoo ON

Who Do the Aski gBy Troy McKinney

IN TREJOS V STATE __ SW3d _ _ 2007 WL 1500276 (TEX APP -- HOUSTON [1 ST OIST] 2007 PET REF D) [NOT DESIGNATED

FOR PUBLICATION] DEFENDANT CHALLENGED THE TRIAL COURTS GRANTING OF A SHUFFlE REQUESTED BY THE STATE AFTER

THE TRIAL JUDGE HAD QUESTIONED THE PANEl BUT BEFORE THE STATE HAD BEGUN ASKING ANY QUESTIONS IN REJECTING THE

DEFENDANTS CLAIM OF ERROR IN GRANTING THE SHUFFlE REQUESTED BY THE STATE A PANEl CONSISTING OF JUSTICES TAFT

ALCALA AND HANKS CONCLUDED

In a non ~capital case as here a motion to shuffle is timely as long as the motion is

m de before the State actually starts questioning the jurors in its portion of the

oir dire DeLeon v State 731 SW2d 948949 (Tex Crim App 1987)

MUiams v State 719 SW2d 573 577 (Tex Crim App 1986)

8iJJardJess othe enotb or detail othe trial courrs questiom to the

pn1we panel in a non-capital we the lniDht-line rule is that the

nwtion to shuffle the venire is timely when it is nuuJe bifore the

State begins questioni1lJJ the potential jurors See WiUiams 719 SW2d at 577 (holding motion to shuffle venire timely

although for forty minutes the trial judge introduced

herself and made introductory remarks identified the

attorneys pointed out the appellant and his co~

defendant Raymond Jackson discussed the division

of offenses into felonies and misdemeanors gave

examples of felonies of the first second and

third degree and the applicable penalties

discussed capital murder and its penalties

and the high fines now available in

cases of drug trafficking read the

instant indictment to the panel

told them the offense was

formerly known as aggravated

rape discussed jury strikes

the order of trial the charge

jury deliberations verdicts and

referred to certain principles as

presumption of innocence burden

of proof reasonable doubt etc)

THE DEFENDER 1lt 7

both

The States motion to shuffle was timely in this non-capital case because it was made before the State began its voir dire

See DeLeon 731 SW2d at 949 WiUiams 719 SW2d at 577 We hold that the trial court did not err by granting

the States motion to shuffle the jury panel

Trejos at 4 (Emphasis added)

Of course this bright-line rule was no so bright when a citizen claimed that the trial court erred in declining to allow him a

jury shuffle under the same circumstances that is after the trial judge had questioned the jurors but before the Stdte begdn its

questioning of the panel In Railsback v State 1 95 SW3d 473 (Tex App -- Houston [l st Dist] 2002 pet refd) a panel

of the same court consisting of Justices Taft Radack and Alcala (two of the three justices who decided Trejos) held

We cond ude that because of the nature and circumstances of the of the voir dire proced ure in this case the tridl court

did not err in denying appellantS request for a jury shuffle on grounds of timeliness In Wdliams which held that

voir dire did not commence until the State had begun its examination the trial judge did not engage in a detailed

questioning of the panel WiUiams 719 SW2d at 574 The trial judge introduced herself introduced the parties dnd

their attorneys explained that there were divisions between offenses and that there were different penalties that could

be applicable read the indictment discussed how the trial would work and defined various legal terms that were used

during the course of a tridl ld The trial judge in WiUiams then asked 3 questions 1) whether anyone recognized

the names of the parties or knew the facts of the case 2) whether anyone had questions as to what the State would

have to prove and 3) ifanyone felt that they could nOt give a punishment within the range allowed by law Id Here

the trial court went well beyond the mere introductory remarks and

began asking questions of the venire members traditionally asked

by the State and a defendant during voir dire proceedings For

all intents and purposes voir dire in this case began when the

trial court began asking questions of the panel that were no

longer related to introductory and administrative matters

and would have traditionally been asked by the parties

themselves

The divergent views of the import of the decision in WiUiams and

the divergent views of the brightness of the alleged bright-line rule are

facially and irreconcilably inconsistent This might be understandable if

these decisions were from different courts or even from different justices

on the same court but they are not The majority of the justices on

panels (Justices Taft and Alcala) are identical Conspicuously Trejos does not

even mention much less reconcile Railsback

The only difference between these two cases is which side won The real rule from these cases is that judges may give the

State relief and deny it to a Defendant under legally identical circumstances and the appellate courts are unlike ly to provide any

relief when the Defendant complains of the error and the inconsistency The real rule from these cases is that appellate justices

will likely view prior cases in whatever way is necessary to affirm a conviction and it matters not that they have said something

different in prior years and cases

Inconsistent decisions just do nOt get much worse than these two decisions Maybe if we shine some light on these kinds of

judicial inconsistencies these bright-line rules will get applied equdlly in the future One can only hope though the past provides

little basis for validating the likelihood that such hope will become reality

W Troy McKinney is a shareholder in Schneider amp McKinney Pc He is one of three lawyers in Texas who is Board Certified in DWI

Defense by the National College for DUI Defense where he is a Regent McKinney is a past President of the HCClA He teaches

throughout the country_ is regularly published and is the coauthor of Texas Drunk Driving law (lexis 4th Ed) McKinney maintains an

active trial and appellate practice

THE DEFENDER -(( 8

THEDEFENDER] WINTER 07

IN LI GHT OF RECENT COURT DECISIONS AND THE ABA GUIDEliNES REGARDING THE IMPORTANC EOF DISCOVERING ALL REASONABLY

AVAILABLE MITIGATING EVIDENCE ON BEHALF OF ADEFENDANT CRIMINAL ATTORNEYS ARE FINDING IT ANECESSITY TO ENLIST

MITIGATION EXPERTS TO HElP AT THE VERY LEAST IN THE PUNISHMENT PHASE OF THEIR TRIALS

THE MITIGATION SPECIALIST It appears now that judges will expect a comprehensive and

reliable mental health evaluation to be conducted in not only

capital cases but in criminal felony cases as well Mitigation

speciJlists who have experience as well as graduate degrees

in Social Work or Psychology possess the skills insight and

abilities to complete sllch evaluations and interview defendants

and their significant others in such a way that they obtain

information the defendant and others may be unlikely to share

with the attorney They also have the expertise to uncover

and recognize mental illness or retardation that the client has

gone to great lengths to hide The specialistS interviewing

techniques might elicit sensitive or even humiliating evidence

that the defendant has never shared before Its obvious that

these defendants would not be where they are if they were

adequate communicators and had good relationship skills

Mitigation specialists can see beyond these deficits and get the

information required for a comprehensive defense Depraved

conduct does not develop out of thin air There are causes

and causes found lead to evidence in mitigation Counsel is

going to need a theory that will be effective in both the guilt

and penalty phases of the trial Your mitigation specialist can

help define that theory

THE DEFENDANTS BIOLOGY AND ENVIRONMENT When looking at what might constitute mitigation in capital

as well as felony cases attorneys can turn to mental health

practitioners to understand how dysfunctional human behavior

must have contributed to this mess in which the defendant

finds himself The male pronoun is appropriate because these

defendants are predominantly male However the theory

applies to women as well Their gender certainly doesnt

provide immunity from childhood abuse and neglect

THE DEFENDER -( B

It is common for the defendant to be a young male in

the range of 17 to 29 years of age and no one should be

surprised by this The background of young males raised

in poverty abuse and neglect fosters violence and emotional

immaturity These young men are chronologically of legal

age but emotionally they may be operating at much younger

developmental stages This is evidenced by their short attention

span their poor decision- making abilities their lack of awareness

of the basic rights and boundaries of others their explosive

entry into emotions and their tendency to blame others for

their problems - all of which can be documented by records

and interviews

Another telltale sign of emotional immaturity is their persistent

need to protect their abusers usually parents or grandparents

Some will even go so far as to be protective of former foster

parents Children (and psychologically these defendants are

still children) desperately want to make their caretakers seem

loving and caring They do this to avoid having to acknowledge

that those persons who were supposed to protect them actually

were the people they should have feared the most That level

of sel fish ness and lack of empathy in a caretaker is very hard

for a child to absorb The terror inherent in that knowledge

is unmanageable Blaming the adult is too painful Thats why

children take responsibility for things they couldnt possibly

have foreseen or caused or prevented When the time comes to

discuss with the defendant the mitigating reasons the attorneys

plan to use in his defense he may be very distrustful This is

when he must embrace the reality about his parents andor

caretakers The mitigation specialist can help him separate the

act of loving ones children from the job of parenting them

There is a widely recognized psychological theory that explains

human development over the life span and is taught as basic

theory to Psych 101 students It was framed by renowned

20th century psychoanalyst Erik Erikson (1902-1994) This

theory divides the life span into stages and attributes a specific

developmental task to each stage The tasks required for healthy

development through childhood and early adolescence include

trust autonomy initiative identity and individuality When

one or more of these tasks are not successfully accomplished

in one stage the child continues to grow chronologically but

his emotional development is damaged In the case of severe

abuse andor neglect its very common for more than one

developmental stage to be derailed Abuse that begins early

in childhood such as in infancy damages the childs ability to

discern empathy A toddler (age 2-4) is famous for imitation

If the toddlers caretakers are smoking dope and never leave

the sofa except to hit each other or conduct a drug sale the

jury needs to appreciate what they would have imitated Four

to six year olds are developing a moral compass self-es teem

and a sense of group interaction If the jury hears that the

defendant was left alone for long periods of time during his

childhood they can recognize how the defendants sense of

self became profoundly skewed Six- to twelve-year- olds are

focused on skill building and concrete operations - things

they wont learn if they are not attending school regularly

or able to absorb whats being taught Early adolescence (up

to age 18) is famous for peer pressure and the need to lit in

vith same age peers If the only examples of peer relationships

documented in their caretakers and in their neighborhoods are

gang members criminal associations or tricks the jury will

empathize vith their choice of fiiends Later adolescence (up

to age 22-25) involves identity formation The good news here

lies in their emotional immaturity Many of these young men are

still stuck in a chronologically inappropriate developmental stage

Therefore their identity is still up for grabs The jury must hear

that intervention at this stage can truly be life changing

There are so many young men from abusive poverty stricken

neglectful family systems about whom one might say There

but for the grace of God go 1 Its probably true that none

of us gets out of childhood without a scratch Everyone enters

adulthood Jacking something because no parents are capable of

doing their job perfectly However the problems commonly

seen in criminal defendants usually stem from more bad luck

than one person ought to experience Psychological theory

indicates that development is a product of inherited factors life

experiences personal choices societal expectations and chance

These defendants are victims of thei r biology and genealogy

Unfortunately for them these are tllings over which they have no

control The jury wiU value hearing what the defendant was exposed

to in his childhood Heres a ust of the most common things

Drug addicted caretakers

Drug dealing caretakers

Prostiultion as a career choice in caretakers

Criminal activity used as a means to pay the bills

Mental illness andor acute emotional disturbance

in caretakers

Severe poverty

Lack of supervision

Sporadic school attendance

Frequent changes in caretakers

Whereabouts of biological parents unknown

Physical abuse of self andor siblings

Sexual abuse of self andor siblings

Numerous changes in residence

The jury would certainly have been moved to hear that while

working at Childrens Protective Services I had a case in

which an elementary school aged child came home to find his

familys apartment empty His mother failed to mention she

was moving that day True story

DISEASE ANDOR INJURY The mitigation specialistS research into a defendants

medical history may reveal injury or disease that the medical

establishment readily acknowledges causes some degree of

neurological damage or disturbance The injury may in fact

have been caused by physical andor sexual abuse of the

child Testimony regarding this history from a medical expert

can be gripping to the jury and give even just one member

justification for lenience

THERE ARE SO MANY YOUNG MEN FROM

ABUSIVE POVERTY STRICKEN NEGLECTFUL

FAMILY SYSTEMS ABOUT WHOM ONE MIGHT

SAY THERE BUT FOR THE GRACE OF GOD GO

I ITS PROBABLY TRUE THAT NONE OF US GETS

OUT OF CHILDHOOD WITHOUT A SCRATCH

THE DEFENDER 1lt 11

THE MOST COMMON ADULT DIAGNOSES FOUND IN THESE DEFENDANTS INCLUDE

MOOD DISORDERS (DEPRESSION ANXIETY ETC) POST TRAUMATIC STRESS

DISORDER AND DISSOCIATIVE ADJUSTMENT AND PERSONALITY DISORDERS

SUBSTANCE ABUSE AND DEPENDENCE Drug abuse and dependence can also explain what mitigates

rhe defendants criminal actions The most commonly abused

drugs include alcohol stimulants marijuana and opioids

Whar follows are some basic details of what the jury probably

doesnt know about the effects of these commonly used

drugs

1 ALCOHOL Alcohol affects practically every organ in the body and alters

the activity of most major neurochemicals It produces a dose

dependent decrease in cognitive and motor functioning As Blood Alcohol Concentration (BAC) rises the impairment increases People rarely look obviously intoxicated at BAC

levels that produce impairment One of the most pronounced

effects of alcohol is on divided attention tasks

2 STIMULANTS It is well known that tolerance to stimulants develops rapidly

Evidence exists that prolonged use of stimulants seems to

bring about sustained neurophysiologic change in the brain This physical damage to the cells of the brain actually affects

how the brain functions Chronic use can produce toxic

psychosis characterized by confused disorganized behavior

paranoia hallucinations and delusions

3 MARIJUANA Short-term memory and the ability to make emergency

decisions are greatly impaired by marijuana use Impairment

of coordination judgment and perception of time can last

well past the feeling of being high produced by marijuana

Impairment of cognitive functions such as judgment and

problem solving can lead to poor decision-making with regard

to present and future outcomes

40PIOIDS Opioids are distributed throughout the body including the central nervous system where they have a psychoactive effect

The primary use of opioids is as an analgesic - a pain reliever The bio-behavioral effects include respiratory depression nausea impaired memory and attention There may be little or no observable impairment in someone intoxicated on opiates

THE DEFENDER 12

SElECTING EXPERT WITNESSES The mitigation specialist works with counsel to develop rhe

explanarion rhat will demonstrate and support rhe diagnosis

presented in court by the Expert Witness Their research

underscores the fact that abuse and neglect contribute to

psychological and mental disorders This constitutes a basis

for minimizing ones culpability in high stress situations such

as the commission ofa violent crime The most common adult

diagnoses found in these defendants include Mood Disorders

(depression anxiety etc) Post Traumatic Stress Disorder and

Dissociative Adjustment and Personality Disorders Research

into their history often uncovers previous childhood diagnoses

ofAttention Deficit Hyperactivity Disorder Conduct Disorder

Oppositional Defiant Disorder and learning disabilities as

well Of course its common to find a history of physical

and sexual abuse of rhe defendant andor his siblings What

the jury needs to hear is that these conditions could often

be improved with counseling and a structured environment

Time and again efforts at intervention have been made by

Childrens Protective Services Texas Youth Commission or

other agencies Often services have been offered or even put

in place However the services may not have been sought out

followed through on or completed by the caretakers Many

times there is clear evidence of a Treatment Plan having

been developed that was never implemented by the caregivers

(who had their own deficits) or by the agency staff charged

with insuring that the services were delivered This is another

situation over which the defendant had no control as a child

This information supports a case for leniency and needs to be

shared with the jury

To gather the information needed to chronicle the

developmental problems in a defendants childhood the

mitigation specialist uses interviews with him family members

willing to make themselves available and records such as

Childrens Protective Services Texas Youth Commission

Texas Department of Criminal Justice school districts and

whatever else can be found Its not uncommon for records

collection to extend to other states or even other countries

Its important to go back and look at the specific details of

charges made against the defendant especially in juvenile

situations The events may actually be a lot less offensive

than they are made to sound Picture a defendant who at

age 10 has been charged in a juvenile case with assaulting a

police officer who was trying to take him into custody When

looking at the narratives describing the situation from the

CPS perspective the explanation was right there in black and

white He didnt know where the police were taking him

He watched other officers take two of his siblings inside a

building and they didnt come out He kept saying he wanted

to go home What he didnt know was that his parents had

already refused to come and get them It is imperative that the

jury hear such a story

The mitigation specialist is helpful in bringing the Expert

Witness and the evidence together Their mental health

background will be particularly significant in helping counsel

decide who the best experts will be Your mitigation specialist

can help find experts who are willing and able to testify to only

what the defense needs and not be inclined to take control of

the situation

Armed with all of the information obtained by the mitigation

specialist the attorney has a variety of options regarding how

to use the information The attorney can use it to

Seek a plea agreement

Select a jury sensitive to the issues relative to the case

Elicit supportjve testimony during cross examination of

witnesses

Present a compelling story at punishment phase

In the effort to find a settlement certainly attorneys dont

want to unnecessarily reveal details of mitigation evidence

before trial However the duty to seek a plea for life must be

at the center of the defense teams goals in capital cases That

evidence will come trom your mitigation specialists research

With the decision in Miller vs Dretke mitigation is becoming

important in all felony cases Familiarize yourself with

mitigation specialists

THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT

MITIGATION IS NOT AN EXCUSE ITS AN EXPLANATION

E

THE DEFENDER 13

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

THEDEFENDER] WINTER 07

APPELLATE COURT SHUFFLE ON JURY SHUFFLES

Judicial Voodoo ON

Who Do the Aski gBy Troy McKinney

IN TREJOS V STATE __ SW3d _ _ 2007 WL 1500276 (TEX APP -- HOUSTON [1 ST OIST] 2007 PET REF D) [NOT DESIGNATED

FOR PUBLICATION] DEFENDANT CHALLENGED THE TRIAL COURTS GRANTING OF A SHUFFlE REQUESTED BY THE STATE AFTER

THE TRIAL JUDGE HAD QUESTIONED THE PANEl BUT BEFORE THE STATE HAD BEGUN ASKING ANY QUESTIONS IN REJECTING THE

DEFENDANTS CLAIM OF ERROR IN GRANTING THE SHUFFlE REQUESTED BY THE STATE A PANEl CONSISTING OF JUSTICES TAFT

ALCALA AND HANKS CONCLUDED

In a non ~capital case as here a motion to shuffle is timely as long as the motion is

m de before the State actually starts questioning the jurors in its portion of the

oir dire DeLeon v State 731 SW2d 948949 (Tex Crim App 1987)

MUiams v State 719 SW2d 573 577 (Tex Crim App 1986)

8iJJardJess othe enotb or detail othe trial courrs questiom to the

pn1we panel in a non-capital we the lniDht-line rule is that the

nwtion to shuffle the venire is timely when it is nuuJe bifore the

State begins questioni1lJJ the potential jurors See WiUiams 719 SW2d at 577 (holding motion to shuffle venire timely

although for forty minutes the trial judge introduced

herself and made introductory remarks identified the

attorneys pointed out the appellant and his co~

defendant Raymond Jackson discussed the division

of offenses into felonies and misdemeanors gave

examples of felonies of the first second and

third degree and the applicable penalties

discussed capital murder and its penalties

and the high fines now available in

cases of drug trafficking read the

instant indictment to the panel

told them the offense was

formerly known as aggravated

rape discussed jury strikes

the order of trial the charge

jury deliberations verdicts and

referred to certain principles as

presumption of innocence burden

of proof reasonable doubt etc)

THE DEFENDER 1lt 7

both

The States motion to shuffle was timely in this non-capital case because it was made before the State began its voir dire

See DeLeon 731 SW2d at 949 WiUiams 719 SW2d at 577 We hold that the trial court did not err by granting

the States motion to shuffle the jury panel

Trejos at 4 (Emphasis added)

Of course this bright-line rule was no so bright when a citizen claimed that the trial court erred in declining to allow him a

jury shuffle under the same circumstances that is after the trial judge had questioned the jurors but before the Stdte begdn its

questioning of the panel In Railsback v State 1 95 SW3d 473 (Tex App -- Houston [l st Dist] 2002 pet refd) a panel

of the same court consisting of Justices Taft Radack and Alcala (two of the three justices who decided Trejos) held

We cond ude that because of the nature and circumstances of the of the voir dire proced ure in this case the tridl court

did not err in denying appellantS request for a jury shuffle on grounds of timeliness In Wdliams which held that

voir dire did not commence until the State had begun its examination the trial judge did not engage in a detailed

questioning of the panel WiUiams 719 SW2d at 574 The trial judge introduced herself introduced the parties dnd

their attorneys explained that there were divisions between offenses and that there were different penalties that could

be applicable read the indictment discussed how the trial would work and defined various legal terms that were used

during the course of a tridl ld The trial judge in WiUiams then asked 3 questions 1) whether anyone recognized

the names of the parties or knew the facts of the case 2) whether anyone had questions as to what the State would

have to prove and 3) ifanyone felt that they could nOt give a punishment within the range allowed by law Id Here

the trial court went well beyond the mere introductory remarks and

began asking questions of the venire members traditionally asked

by the State and a defendant during voir dire proceedings For

all intents and purposes voir dire in this case began when the

trial court began asking questions of the panel that were no

longer related to introductory and administrative matters

and would have traditionally been asked by the parties

themselves

The divergent views of the import of the decision in WiUiams and

the divergent views of the brightness of the alleged bright-line rule are

facially and irreconcilably inconsistent This might be understandable if

these decisions were from different courts or even from different justices

on the same court but they are not The majority of the justices on

panels (Justices Taft and Alcala) are identical Conspicuously Trejos does not

even mention much less reconcile Railsback

The only difference between these two cases is which side won The real rule from these cases is that judges may give the

State relief and deny it to a Defendant under legally identical circumstances and the appellate courts are unlike ly to provide any

relief when the Defendant complains of the error and the inconsistency The real rule from these cases is that appellate justices

will likely view prior cases in whatever way is necessary to affirm a conviction and it matters not that they have said something

different in prior years and cases

Inconsistent decisions just do nOt get much worse than these two decisions Maybe if we shine some light on these kinds of

judicial inconsistencies these bright-line rules will get applied equdlly in the future One can only hope though the past provides

little basis for validating the likelihood that such hope will become reality

W Troy McKinney is a shareholder in Schneider amp McKinney Pc He is one of three lawyers in Texas who is Board Certified in DWI

Defense by the National College for DUI Defense where he is a Regent McKinney is a past President of the HCClA He teaches

throughout the country_ is regularly published and is the coauthor of Texas Drunk Driving law (lexis 4th Ed) McKinney maintains an

active trial and appellate practice

THE DEFENDER -(( 8

THEDEFENDER] WINTER 07

IN LI GHT OF RECENT COURT DECISIONS AND THE ABA GUIDEliNES REGARDING THE IMPORTANC EOF DISCOVERING ALL REASONABLY

AVAILABLE MITIGATING EVIDENCE ON BEHALF OF ADEFENDANT CRIMINAL ATTORNEYS ARE FINDING IT ANECESSITY TO ENLIST

MITIGATION EXPERTS TO HElP AT THE VERY LEAST IN THE PUNISHMENT PHASE OF THEIR TRIALS

THE MITIGATION SPECIALIST It appears now that judges will expect a comprehensive and

reliable mental health evaluation to be conducted in not only

capital cases but in criminal felony cases as well Mitigation

speciJlists who have experience as well as graduate degrees

in Social Work or Psychology possess the skills insight and

abilities to complete sllch evaluations and interview defendants

and their significant others in such a way that they obtain

information the defendant and others may be unlikely to share

with the attorney They also have the expertise to uncover

and recognize mental illness or retardation that the client has

gone to great lengths to hide The specialistS interviewing

techniques might elicit sensitive or even humiliating evidence

that the defendant has never shared before Its obvious that

these defendants would not be where they are if they were

adequate communicators and had good relationship skills

Mitigation specialists can see beyond these deficits and get the

information required for a comprehensive defense Depraved

conduct does not develop out of thin air There are causes

and causes found lead to evidence in mitigation Counsel is

going to need a theory that will be effective in both the guilt

and penalty phases of the trial Your mitigation specialist can

help define that theory

THE DEFENDANTS BIOLOGY AND ENVIRONMENT When looking at what might constitute mitigation in capital

as well as felony cases attorneys can turn to mental health

practitioners to understand how dysfunctional human behavior

must have contributed to this mess in which the defendant

finds himself The male pronoun is appropriate because these

defendants are predominantly male However the theory

applies to women as well Their gender certainly doesnt

provide immunity from childhood abuse and neglect

THE DEFENDER -( B

It is common for the defendant to be a young male in

the range of 17 to 29 years of age and no one should be

surprised by this The background of young males raised

in poverty abuse and neglect fosters violence and emotional

immaturity These young men are chronologically of legal

age but emotionally they may be operating at much younger

developmental stages This is evidenced by their short attention

span their poor decision- making abilities their lack of awareness

of the basic rights and boundaries of others their explosive

entry into emotions and their tendency to blame others for

their problems - all of which can be documented by records

and interviews

Another telltale sign of emotional immaturity is their persistent

need to protect their abusers usually parents or grandparents

Some will even go so far as to be protective of former foster

parents Children (and psychologically these defendants are

still children) desperately want to make their caretakers seem

loving and caring They do this to avoid having to acknowledge

that those persons who were supposed to protect them actually

were the people they should have feared the most That level

of sel fish ness and lack of empathy in a caretaker is very hard

for a child to absorb The terror inherent in that knowledge

is unmanageable Blaming the adult is too painful Thats why

children take responsibility for things they couldnt possibly

have foreseen or caused or prevented When the time comes to

discuss with the defendant the mitigating reasons the attorneys

plan to use in his defense he may be very distrustful This is

when he must embrace the reality about his parents andor

caretakers The mitigation specialist can help him separate the

act of loving ones children from the job of parenting them

There is a widely recognized psychological theory that explains

human development over the life span and is taught as basic

theory to Psych 101 students It was framed by renowned

20th century psychoanalyst Erik Erikson (1902-1994) This

theory divides the life span into stages and attributes a specific

developmental task to each stage The tasks required for healthy

development through childhood and early adolescence include

trust autonomy initiative identity and individuality When

one or more of these tasks are not successfully accomplished

in one stage the child continues to grow chronologically but

his emotional development is damaged In the case of severe

abuse andor neglect its very common for more than one

developmental stage to be derailed Abuse that begins early

in childhood such as in infancy damages the childs ability to

discern empathy A toddler (age 2-4) is famous for imitation

If the toddlers caretakers are smoking dope and never leave

the sofa except to hit each other or conduct a drug sale the

jury needs to appreciate what they would have imitated Four

to six year olds are developing a moral compass self-es teem

and a sense of group interaction If the jury hears that the

defendant was left alone for long periods of time during his

childhood they can recognize how the defendants sense of

self became profoundly skewed Six- to twelve-year- olds are

focused on skill building and concrete operations - things

they wont learn if they are not attending school regularly

or able to absorb whats being taught Early adolescence (up

to age 18) is famous for peer pressure and the need to lit in

vith same age peers If the only examples of peer relationships

documented in their caretakers and in their neighborhoods are

gang members criminal associations or tricks the jury will

empathize vith their choice of fiiends Later adolescence (up

to age 22-25) involves identity formation The good news here

lies in their emotional immaturity Many of these young men are

still stuck in a chronologically inappropriate developmental stage

Therefore their identity is still up for grabs The jury must hear

that intervention at this stage can truly be life changing

There are so many young men from abusive poverty stricken

neglectful family systems about whom one might say There

but for the grace of God go 1 Its probably true that none

of us gets out of childhood without a scratch Everyone enters

adulthood Jacking something because no parents are capable of

doing their job perfectly However the problems commonly

seen in criminal defendants usually stem from more bad luck

than one person ought to experience Psychological theory

indicates that development is a product of inherited factors life

experiences personal choices societal expectations and chance

These defendants are victims of thei r biology and genealogy

Unfortunately for them these are tllings over which they have no

control The jury wiU value hearing what the defendant was exposed

to in his childhood Heres a ust of the most common things

Drug addicted caretakers

Drug dealing caretakers

Prostiultion as a career choice in caretakers

Criminal activity used as a means to pay the bills

Mental illness andor acute emotional disturbance

in caretakers

Severe poverty

Lack of supervision

Sporadic school attendance

Frequent changes in caretakers

Whereabouts of biological parents unknown

Physical abuse of self andor siblings

Sexual abuse of self andor siblings

Numerous changes in residence

The jury would certainly have been moved to hear that while

working at Childrens Protective Services I had a case in

which an elementary school aged child came home to find his

familys apartment empty His mother failed to mention she

was moving that day True story

DISEASE ANDOR INJURY The mitigation specialistS research into a defendants

medical history may reveal injury or disease that the medical

establishment readily acknowledges causes some degree of

neurological damage or disturbance The injury may in fact

have been caused by physical andor sexual abuse of the

child Testimony regarding this history from a medical expert

can be gripping to the jury and give even just one member

justification for lenience

THERE ARE SO MANY YOUNG MEN FROM

ABUSIVE POVERTY STRICKEN NEGLECTFUL

FAMILY SYSTEMS ABOUT WHOM ONE MIGHT

SAY THERE BUT FOR THE GRACE OF GOD GO

I ITS PROBABLY TRUE THAT NONE OF US GETS

OUT OF CHILDHOOD WITHOUT A SCRATCH

THE DEFENDER 1lt 11

THE MOST COMMON ADULT DIAGNOSES FOUND IN THESE DEFENDANTS INCLUDE

MOOD DISORDERS (DEPRESSION ANXIETY ETC) POST TRAUMATIC STRESS

DISORDER AND DISSOCIATIVE ADJUSTMENT AND PERSONALITY DISORDERS

SUBSTANCE ABUSE AND DEPENDENCE Drug abuse and dependence can also explain what mitigates

rhe defendants criminal actions The most commonly abused

drugs include alcohol stimulants marijuana and opioids

Whar follows are some basic details of what the jury probably

doesnt know about the effects of these commonly used

drugs

1 ALCOHOL Alcohol affects practically every organ in the body and alters

the activity of most major neurochemicals It produces a dose

dependent decrease in cognitive and motor functioning As Blood Alcohol Concentration (BAC) rises the impairment increases People rarely look obviously intoxicated at BAC

levels that produce impairment One of the most pronounced

effects of alcohol is on divided attention tasks

2 STIMULANTS It is well known that tolerance to stimulants develops rapidly

Evidence exists that prolonged use of stimulants seems to

bring about sustained neurophysiologic change in the brain This physical damage to the cells of the brain actually affects

how the brain functions Chronic use can produce toxic

psychosis characterized by confused disorganized behavior

paranoia hallucinations and delusions

3 MARIJUANA Short-term memory and the ability to make emergency

decisions are greatly impaired by marijuana use Impairment

of coordination judgment and perception of time can last

well past the feeling of being high produced by marijuana

Impairment of cognitive functions such as judgment and

problem solving can lead to poor decision-making with regard

to present and future outcomes

40PIOIDS Opioids are distributed throughout the body including the central nervous system where they have a psychoactive effect

The primary use of opioids is as an analgesic - a pain reliever The bio-behavioral effects include respiratory depression nausea impaired memory and attention There may be little or no observable impairment in someone intoxicated on opiates

THE DEFENDER 12

SElECTING EXPERT WITNESSES The mitigation specialist works with counsel to develop rhe

explanarion rhat will demonstrate and support rhe diagnosis

presented in court by the Expert Witness Their research

underscores the fact that abuse and neglect contribute to

psychological and mental disorders This constitutes a basis

for minimizing ones culpability in high stress situations such

as the commission ofa violent crime The most common adult

diagnoses found in these defendants include Mood Disorders

(depression anxiety etc) Post Traumatic Stress Disorder and

Dissociative Adjustment and Personality Disorders Research

into their history often uncovers previous childhood diagnoses

ofAttention Deficit Hyperactivity Disorder Conduct Disorder

Oppositional Defiant Disorder and learning disabilities as

well Of course its common to find a history of physical

and sexual abuse of rhe defendant andor his siblings What

the jury needs to hear is that these conditions could often

be improved with counseling and a structured environment

Time and again efforts at intervention have been made by

Childrens Protective Services Texas Youth Commission or

other agencies Often services have been offered or even put

in place However the services may not have been sought out

followed through on or completed by the caretakers Many

times there is clear evidence of a Treatment Plan having

been developed that was never implemented by the caregivers

(who had their own deficits) or by the agency staff charged

with insuring that the services were delivered This is another

situation over which the defendant had no control as a child

This information supports a case for leniency and needs to be

shared with the jury

To gather the information needed to chronicle the

developmental problems in a defendants childhood the

mitigation specialist uses interviews with him family members

willing to make themselves available and records such as

Childrens Protective Services Texas Youth Commission

Texas Department of Criminal Justice school districts and

whatever else can be found Its not uncommon for records

collection to extend to other states or even other countries

Its important to go back and look at the specific details of

charges made against the defendant especially in juvenile

situations The events may actually be a lot less offensive

than they are made to sound Picture a defendant who at

age 10 has been charged in a juvenile case with assaulting a

police officer who was trying to take him into custody When

looking at the narratives describing the situation from the

CPS perspective the explanation was right there in black and

white He didnt know where the police were taking him

He watched other officers take two of his siblings inside a

building and they didnt come out He kept saying he wanted

to go home What he didnt know was that his parents had

already refused to come and get them It is imperative that the

jury hear such a story

The mitigation specialist is helpful in bringing the Expert

Witness and the evidence together Their mental health

background will be particularly significant in helping counsel

decide who the best experts will be Your mitigation specialist

can help find experts who are willing and able to testify to only

what the defense needs and not be inclined to take control of

the situation

Armed with all of the information obtained by the mitigation

specialist the attorney has a variety of options regarding how

to use the information The attorney can use it to

Seek a plea agreement

Select a jury sensitive to the issues relative to the case

Elicit supportjve testimony during cross examination of

witnesses

Present a compelling story at punishment phase

In the effort to find a settlement certainly attorneys dont

want to unnecessarily reveal details of mitigation evidence

before trial However the duty to seek a plea for life must be

at the center of the defense teams goals in capital cases That

evidence will come trom your mitigation specialists research

With the decision in Miller vs Dretke mitigation is becoming

important in all felony cases Familiarize yourself with

mitigation specialists

THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT

MITIGATION IS NOT AN EXCUSE ITS AN EXPLANATION

E

THE DEFENDER 13

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

both

The States motion to shuffle was timely in this non-capital case because it was made before the State began its voir dire

See DeLeon 731 SW2d at 949 WiUiams 719 SW2d at 577 We hold that the trial court did not err by granting

the States motion to shuffle the jury panel

Trejos at 4 (Emphasis added)

Of course this bright-line rule was no so bright when a citizen claimed that the trial court erred in declining to allow him a

jury shuffle under the same circumstances that is after the trial judge had questioned the jurors but before the Stdte begdn its

questioning of the panel In Railsback v State 1 95 SW3d 473 (Tex App -- Houston [l st Dist] 2002 pet refd) a panel

of the same court consisting of Justices Taft Radack and Alcala (two of the three justices who decided Trejos) held

We cond ude that because of the nature and circumstances of the of the voir dire proced ure in this case the tridl court

did not err in denying appellantS request for a jury shuffle on grounds of timeliness In Wdliams which held that

voir dire did not commence until the State had begun its examination the trial judge did not engage in a detailed

questioning of the panel WiUiams 719 SW2d at 574 The trial judge introduced herself introduced the parties dnd

their attorneys explained that there were divisions between offenses and that there were different penalties that could

be applicable read the indictment discussed how the trial would work and defined various legal terms that were used

during the course of a tridl ld The trial judge in WiUiams then asked 3 questions 1) whether anyone recognized

the names of the parties or knew the facts of the case 2) whether anyone had questions as to what the State would

have to prove and 3) ifanyone felt that they could nOt give a punishment within the range allowed by law Id Here

the trial court went well beyond the mere introductory remarks and

began asking questions of the venire members traditionally asked

by the State and a defendant during voir dire proceedings For

all intents and purposes voir dire in this case began when the

trial court began asking questions of the panel that were no

longer related to introductory and administrative matters

and would have traditionally been asked by the parties

themselves

The divergent views of the import of the decision in WiUiams and

the divergent views of the brightness of the alleged bright-line rule are

facially and irreconcilably inconsistent This might be understandable if

these decisions were from different courts or even from different justices

on the same court but they are not The majority of the justices on

panels (Justices Taft and Alcala) are identical Conspicuously Trejos does not

even mention much less reconcile Railsback

The only difference between these two cases is which side won The real rule from these cases is that judges may give the

State relief and deny it to a Defendant under legally identical circumstances and the appellate courts are unlike ly to provide any

relief when the Defendant complains of the error and the inconsistency The real rule from these cases is that appellate justices

will likely view prior cases in whatever way is necessary to affirm a conviction and it matters not that they have said something

different in prior years and cases

Inconsistent decisions just do nOt get much worse than these two decisions Maybe if we shine some light on these kinds of

judicial inconsistencies these bright-line rules will get applied equdlly in the future One can only hope though the past provides

little basis for validating the likelihood that such hope will become reality

W Troy McKinney is a shareholder in Schneider amp McKinney Pc He is one of three lawyers in Texas who is Board Certified in DWI

Defense by the National College for DUI Defense where he is a Regent McKinney is a past President of the HCClA He teaches

throughout the country_ is regularly published and is the coauthor of Texas Drunk Driving law (lexis 4th Ed) McKinney maintains an

active trial and appellate practice

THE DEFENDER -(( 8

THEDEFENDER] WINTER 07

IN LI GHT OF RECENT COURT DECISIONS AND THE ABA GUIDEliNES REGARDING THE IMPORTANC EOF DISCOVERING ALL REASONABLY

AVAILABLE MITIGATING EVIDENCE ON BEHALF OF ADEFENDANT CRIMINAL ATTORNEYS ARE FINDING IT ANECESSITY TO ENLIST

MITIGATION EXPERTS TO HElP AT THE VERY LEAST IN THE PUNISHMENT PHASE OF THEIR TRIALS

THE MITIGATION SPECIALIST It appears now that judges will expect a comprehensive and

reliable mental health evaluation to be conducted in not only

capital cases but in criminal felony cases as well Mitigation

speciJlists who have experience as well as graduate degrees

in Social Work or Psychology possess the skills insight and

abilities to complete sllch evaluations and interview defendants

and their significant others in such a way that they obtain

information the defendant and others may be unlikely to share

with the attorney They also have the expertise to uncover

and recognize mental illness or retardation that the client has

gone to great lengths to hide The specialistS interviewing

techniques might elicit sensitive or even humiliating evidence

that the defendant has never shared before Its obvious that

these defendants would not be where they are if they were

adequate communicators and had good relationship skills

Mitigation specialists can see beyond these deficits and get the

information required for a comprehensive defense Depraved

conduct does not develop out of thin air There are causes

and causes found lead to evidence in mitigation Counsel is

going to need a theory that will be effective in both the guilt

and penalty phases of the trial Your mitigation specialist can

help define that theory

THE DEFENDANTS BIOLOGY AND ENVIRONMENT When looking at what might constitute mitigation in capital

as well as felony cases attorneys can turn to mental health

practitioners to understand how dysfunctional human behavior

must have contributed to this mess in which the defendant

finds himself The male pronoun is appropriate because these

defendants are predominantly male However the theory

applies to women as well Their gender certainly doesnt

provide immunity from childhood abuse and neglect

THE DEFENDER -( B

It is common for the defendant to be a young male in

the range of 17 to 29 years of age and no one should be

surprised by this The background of young males raised

in poverty abuse and neglect fosters violence and emotional

immaturity These young men are chronologically of legal

age but emotionally they may be operating at much younger

developmental stages This is evidenced by their short attention

span their poor decision- making abilities their lack of awareness

of the basic rights and boundaries of others their explosive

entry into emotions and their tendency to blame others for

their problems - all of which can be documented by records

and interviews

Another telltale sign of emotional immaturity is their persistent

need to protect their abusers usually parents or grandparents

Some will even go so far as to be protective of former foster

parents Children (and psychologically these defendants are

still children) desperately want to make their caretakers seem

loving and caring They do this to avoid having to acknowledge

that those persons who were supposed to protect them actually

were the people they should have feared the most That level

of sel fish ness and lack of empathy in a caretaker is very hard

for a child to absorb The terror inherent in that knowledge

is unmanageable Blaming the adult is too painful Thats why

children take responsibility for things they couldnt possibly

have foreseen or caused or prevented When the time comes to

discuss with the defendant the mitigating reasons the attorneys

plan to use in his defense he may be very distrustful This is

when he must embrace the reality about his parents andor

caretakers The mitigation specialist can help him separate the

act of loving ones children from the job of parenting them

There is a widely recognized psychological theory that explains

human development over the life span and is taught as basic

theory to Psych 101 students It was framed by renowned

20th century psychoanalyst Erik Erikson (1902-1994) This

theory divides the life span into stages and attributes a specific

developmental task to each stage The tasks required for healthy

development through childhood and early adolescence include

trust autonomy initiative identity and individuality When

one or more of these tasks are not successfully accomplished

in one stage the child continues to grow chronologically but

his emotional development is damaged In the case of severe

abuse andor neglect its very common for more than one

developmental stage to be derailed Abuse that begins early

in childhood such as in infancy damages the childs ability to

discern empathy A toddler (age 2-4) is famous for imitation

If the toddlers caretakers are smoking dope and never leave

the sofa except to hit each other or conduct a drug sale the

jury needs to appreciate what they would have imitated Four

to six year olds are developing a moral compass self-es teem

and a sense of group interaction If the jury hears that the

defendant was left alone for long periods of time during his

childhood they can recognize how the defendants sense of

self became profoundly skewed Six- to twelve-year- olds are

focused on skill building and concrete operations - things

they wont learn if they are not attending school regularly

or able to absorb whats being taught Early adolescence (up

to age 18) is famous for peer pressure and the need to lit in

vith same age peers If the only examples of peer relationships

documented in their caretakers and in their neighborhoods are

gang members criminal associations or tricks the jury will

empathize vith their choice of fiiends Later adolescence (up

to age 22-25) involves identity formation The good news here

lies in their emotional immaturity Many of these young men are

still stuck in a chronologically inappropriate developmental stage

Therefore their identity is still up for grabs The jury must hear

that intervention at this stage can truly be life changing

There are so many young men from abusive poverty stricken

neglectful family systems about whom one might say There

but for the grace of God go 1 Its probably true that none

of us gets out of childhood without a scratch Everyone enters

adulthood Jacking something because no parents are capable of

doing their job perfectly However the problems commonly

seen in criminal defendants usually stem from more bad luck

than one person ought to experience Psychological theory

indicates that development is a product of inherited factors life

experiences personal choices societal expectations and chance

These defendants are victims of thei r biology and genealogy

Unfortunately for them these are tllings over which they have no

control The jury wiU value hearing what the defendant was exposed

to in his childhood Heres a ust of the most common things

Drug addicted caretakers

Drug dealing caretakers

Prostiultion as a career choice in caretakers

Criminal activity used as a means to pay the bills

Mental illness andor acute emotional disturbance

in caretakers

Severe poverty

Lack of supervision

Sporadic school attendance

Frequent changes in caretakers

Whereabouts of biological parents unknown

Physical abuse of self andor siblings

Sexual abuse of self andor siblings

Numerous changes in residence

The jury would certainly have been moved to hear that while

working at Childrens Protective Services I had a case in

which an elementary school aged child came home to find his

familys apartment empty His mother failed to mention she

was moving that day True story

DISEASE ANDOR INJURY The mitigation specialistS research into a defendants

medical history may reveal injury or disease that the medical

establishment readily acknowledges causes some degree of

neurological damage or disturbance The injury may in fact

have been caused by physical andor sexual abuse of the

child Testimony regarding this history from a medical expert

can be gripping to the jury and give even just one member

justification for lenience

THERE ARE SO MANY YOUNG MEN FROM

ABUSIVE POVERTY STRICKEN NEGLECTFUL

FAMILY SYSTEMS ABOUT WHOM ONE MIGHT

SAY THERE BUT FOR THE GRACE OF GOD GO

I ITS PROBABLY TRUE THAT NONE OF US GETS

OUT OF CHILDHOOD WITHOUT A SCRATCH

THE DEFENDER 1lt 11

THE MOST COMMON ADULT DIAGNOSES FOUND IN THESE DEFENDANTS INCLUDE

MOOD DISORDERS (DEPRESSION ANXIETY ETC) POST TRAUMATIC STRESS

DISORDER AND DISSOCIATIVE ADJUSTMENT AND PERSONALITY DISORDERS

SUBSTANCE ABUSE AND DEPENDENCE Drug abuse and dependence can also explain what mitigates

rhe defendants criminal actions The most commonly abused

drugs include alcohol stimulants marijuana and opioids

Whar follows are some basic details of what the jury probably

doesnt know about the effects of these commonly used

drugs

1 ALCOHOL Alcohol affects practically every organ in the body and alters

the activity of most major neurochemicals It produces a dose

dependent decrease in cognitive and motor functioning As Blood Alcohol Concentration (BAC) rises the impairment increases People rarely look obviously intoxicated at BAC

levels that produce impairment One of the most pronounced

effects of alcohol is on divided attention tasks

2 STIMULANTS It is well known that tolerance to stimulants develops rapidly

Evidence exists that prolonged use of stimulants seems to

bring about sustained neurophysiologic change in the brain This physical damage to the cells of the brain actually affects

how the brain functions Chronic use can produce toxic

psychosis characterized by confused disorganized behavior

paranoia hallucinations and delusions

3 MARIJUANA Short-term memory and the ability to make emergency

decisions are greatly impaired by marijuana use Impairment

of coordination judgment and perception of time can last

well past the feeling of being high produced by marijuana

Impairment of cognitive functions such as judgment and

problem solving can lead to poor decision-making with regard

to present and future outcomes

40PIOIDS Opioids are distributed throughout the body including the central nervous system where they have a psychoactive effect

The primary use of opioids is as an analgesic - a pain reliever The bio-behavioral effects include respiratory depression nausea impaired memory and attention There may be little or no observable impairment in someone intoxicated on opiates

THE DEFENDER 12

SElECTING EXPERT WITNESSES The mitigation specialist works with counsel to develop rhe

explanarion rhat will demonstrate and support rhe diagnosis

presented in court by the Expert Witness Their research

underscores the fact that abuse and neglect contribute to

psychological and mental disorders This constitutes a basis

for minimizing ones culpability in high stress situations such

as the commission ofa violent crime The most common adult

diagnoses found in these defendants include Mood Disorders

(depression anxiety etc) Post Traumatic Stress Disorder and

Dissociative Adjustment and Personality Disorders Research

into their history often uncovers previous childhood diagnoses

ofAttention Deficit Hyperactivity Disorder Conduct Disorder

Oppositional Defiant Disorder and learning disabilities as

well Of course its common to find a history of physical

and sexual abuse of rhe defendant andor his siblings What

the jury needs to hear is that these conditions could often

be improved with counseling and a structured environment

Time and again efforts at intervention have been made by

Childrens Protective Services Texas Youth Commission or

other agencies Often services have been offered or even put

in place However the services may not have been sought out

followed through on or completed by the caretakers Many

times there is clear evidence of a Treatment Plan having

been developed that was never implemented by the caregivers

(who had their own deficits) or by the agency staff charged

with insuring that the services were delivered This is another

situation over which the defendant had no control as a child

This information supports a case for leniency and needs to be

shared with the jury

To gather the information needed to chronicle the

developmental problems in a defendants childhood the

mitigation specialist uses interviews with him family members

willing to make themselves available and records such as

Childrens Protective Services Texas Youth Commission

Texas Department of Criminal Justice school districts and

whatever else can be found Its not uncommon for records

collection to extend to other states or even other countries

Its important to go back and look at the specific details of

charges made against the defendant especially in juvenile

situations The events may actually be a lot less offensive

than they are made to sound Picture a defendant who at

age 10 has been charged in a juvenile case with assaulting a

police officer who was trying to take him into custody When

looking at the narratives describing the situation from the

CPS perspective the explanation was right there in black and

white He didnt know where the police were taking him

He watched other officers take two of his siblings inside a

building and they didnt come out He kept saying he wanted

to go home What he didnt know was that his parents had

already refused to come and get them It is imperative that the

jury hear such a story

The mitigation specialist is helpful in bringing the Expert

Witness and the evidence together Their mental health

background will be particularly significant in helping counsel

decide who the best experts will be Your mitigation specialist

can help find experts who are willing and able to testify to only

what the defense needs and not be inclined to take control of

the situation

Armed with all of the information obtained by the mitigation

specialist the attorney has a variety of options regarding how

to use the information The attorney can use it to

Seek a plea agreement

Select a jury sensitive to the issues relative to the case

Elicit supportjve testimony during cross examination of

witnesses

Present a compelling story at punishment phase

In the effort to find a settlement certainly attorneys dont

want to unnecessarily reveal details of mitigation evidence

before trial However the duty to seek a plea for life must be

at the center of the defense teams goals in capital cases That

evidence will come trom your mitigation specialists research

With the decision in Miller vs Dretke mitigation is becoming

important in all felony cases Familiarize yourself with

mitigation specialists

THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT

MITIGATION IS NOT AN EXCUSE ITS AN EXPLANATION

E

THE DEFENDER 13

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

THEDEFENDER] WINTER 07

IN LI GHT OF RECENT COURT DECISIONS AND THE ABA GUIDEliNES REGARDING THE IMPORTANC EOF DISCOVERING ALL REASONABLY

AVAILABLE MITIGATING EVIDENCE ON BEHALF OF ADEFENDANT CRIMINAL ATTORNEYS ARE FINDING IT ANECESSITY TO ENLIST

MITIGATION EXPERTS TO HElP AT THE VERY LEAST IN THE PUNISHMENT PHASE OF THEIR TRIALS

THE MITIGATION SPECIALIST It appears now that judges will expect a comprehensive and

reliable mental health evaluation to be conducted in not only

capital cases but in criminal felony cases as well Mitigation

speciJlists who have experience as well as graduate degrees

in Social Work or Psychology possess the skills insight and

abilities to complete sllch evaluations and interview defendants

and their significant others in such a way that they obtain

information the defendant and others may be unlikely to share

with the attorney They also have the expertise to uncover

and recognize mental illness or retardation that the client has

gone to great lengths to hide The specialistS interviewing

techniques might elicit sensitive or even humiliating evidence

that the defendant has never shared before Its obvious that

these defendants would not be where they are if they were

adequate communicators and had good relationship skills

Mitigation specialists can see beyond these deficits and get the

information required for a comprehensive defense Depraved

conduct does not develop out of thin air There are causes

and causes found lead to evidence in mitigation Counsel is

going to need a theory that will be effective in both the guilt

and penalty phases of the trial Your mitigation specialist can

help define that theory

THE DEFENDANTS BIOLOGY AND ENVIRONMENT When looking at what might constitute mitigation in capital

as well as felony cases attorneys can turn to mental health

practitioners to understand how dysfunctional human behavior

must have contributed to this mess in which the defendant

finds himself The male pronoun is appropriate because these

defendants are predominantly male However the theory

applies to women as well Their gender certainly doesnt

provide immunity from childhood abuse and neglect

THE DEFENDER -( B

It is common for the defendant to be a young male in

the range of 17 to 29 years of age and no one should be

surprised by this The background of young males raised

in poverty abuse and neglect fosters violence and emotional

immaturity These young men are chronologically of legal

age but emotionally they may be operating at much younger

developmental stages This is evidenced by their short attention

span their poor decision- making abilities their lack of awareness

of the basic rights and boundaries of others their explosive

entry into emotions and their tendency to blame others for

their problems - all of which can be documented by records

and interviews

Another telltale sign of emotional immaturity is their persistent

need to protect their abusers usually parents or grandparents

Some will even go so far as to be protective of former foster

parents Children (and psychologically these defendants are

still children) desperately want to make their caretakers seem

loving and caring They do this to avoid having to acknowledge

that those persons who were supposed to protect them actually

were the people they should have feared the most That level

of sel fish ness and lack of empathy in a caretaker is very hard

for a child to absorb The terror inherent in that knowledge

is unmanageable Blaming the adult is too painful Thats why

children take responsibility for things they couldnt possibly

have foreseen or caused or prevented When the time comes to

discuss with the defendant the mitigating reasons the attorneys

plan to use in his defense he may be very distrustful This is

when he must embrace the reality about his parents andor

caretakers The mitigation specialist can help him separate the

act of loving ones children from the job of parenting them

There is a widely recognized psychological theory that explains

human development over the life span and is taught as basic

theory to Psych 101 students It was framed by renowned

20th century psychoanalyst Erik Erikson (1902-1994) This

theory divides the life span into stages and attributes a specific

developmental task to each stage The tasks required for healthy

development through childhood and early adolescence include

trust autonomy initiative identity and individuality When

one or more of these tasks are not successfully accomplished

in one stage the child continues to grow chronologically but

his emotional development is damaged In the case of severe

abuse andor neglect its very common for more than one

developmental stage to be derailed Abuse that begins early

in childhood such as in infancy damages the childs ability to

discern empathy A toddler (age 2-4) is famous for imitation

If the toddlers caretakers are smoking dope and never leave

the sofa except to hit each other or conduct a drug sale the

jury needs to appreciate what they would have imitated Four

to six year olds are developing a moral compass self-es teem

and a sense of group interaction If the jury hears that the

defendant was left alone for long periods of time during his

childhood they can recognize how the defendants sense of

self became profoundly skewed Six- to twelve-year- olds are

focused on skill building and concrete operations - things

they wont learn if they are not attending school regularly

or able to absorb whats being taught Early adolescence (up

to age 18) is famous for peer pressure and the need to lit in

vith same age peers If the only examples of peer relationships

documented in their caretakers and in their neighborhoods are

gang members criminal associations or tricks the jury will

empathize vith their choice of fiiends Later adolescence (up

to age 22-25) involves identity formation The good news here

lies in their emotional immaturity Many of these young men are

still stuck in a chronologically inappropriate developmental stage

Therefore their identity is still up for grabs The jury must hear

that intervention at this stage can truly be life changing

There are so many young men from abusive poverty stricken

neglectful family systems about whom one might say There

but for the grace of God go 1 Its probably true that none

of us gets out of childhood without a scratch Everyone enters

adulthood Jacking something because no parents are capable of

doing their job perfectly However the problems commonly

seen in criminal defendants usually stem from more bad luck

than one person ought to experience Psychological theory

indicates that development is a product of inherited factors life

experiences personal choices societal expectations and chance

These defendants are victims of thei r biology and genealogy

Unfortunately for them these are tllings over which they have no

control The jury wiU value hearing what the defendant was exposed

to in his childhood Heres a ust of the most common things

Drug addicted caretakers

Drug dealing caretakers

Prostiultion as a career choice in caretakers

Criminal activity used as a means to pay the bills

Mental illness andor acute emotional disturbance

in caretakers

Severe poverty

Lack of supervision

Sporadic school attendance

Frequent changes in caretakers

Whereabouts of biological parents unknown

Physical abuse of self andor siblings

Sexual abuse of self andor siblings

Numerous changes in residence

The jury would certainly have been moved to hear that while

working at Childrens Protective Services I had a case in

which an elementary school aged child came home to find his

familys apartment empty His mother failed to mention she

was moving that day True story

DISEASE ANDOR INJURY The mitigation specialistS research into a defendants

medical history may reveal injury or disease that the medical

establishment readily acknowledges causes some degree of

neurological damage or disturbance The injury may in fact

have been caused by physical andor sexual abuse of the

child Testimony regarding this history from a medical expert

can be gripping to the jury and give even just one member

justification for lenience

THERE ARE SO MANY YOUNG MEN FROM

ABUSIVE POVERTY STRICKEN NEGLECTFUL

FAMILY SYSTEMS ABOUT WHOM ONE MIGHT

SAY THERE BUT FOR THE GRACE OF GOD GO

I ITS PROBABLY TRUE THAT NONE OF US GETS

OUT OF CHILDHOOD WITHOUT A SCRATCH

THE DEFENDER 1lt 11

THE MOST COMMON ADULT DIAGNOSES FOUND IN THESE DEFENDANTS INCLUDE

MOOD DISORDERS (DEPRESSION ANXIETY ETC) POST TRAUMATIC STRESS

DISORDER AND DISSOCIATIVE ADJUSTMENT AND PERSONALITY DISORDERS

SUBSTANCE ABUSE AND DEPENDENCE Drug abuse and dependence can also explain what mitigates

rhe defendants criminal actions The most commonly abused

drugs include alcohol stimulants marijuana and opioids

Whar follows are some basic details of what the jury probably

doesnt know about the effects of these commonly used

drugs

1 ALCOHOL Alcohol affects practically every organ in the body and alters

the activity of most major neurochemicals It produces a dose

dependent decrease in cognitive and motor functioning As Blood Alcohol Concentration (BAC) rises the impairment increases People rarely look obviously intoxicated at BAC

levels that produce impairment One of the most pronounced

effects of alcohol is on divided attention tasks

2 STIMULANTS It is well known that tolerance to stimulants develops rapidly

Evidence exists that prolonged use of stimulants seems to

bring about sustained neurophysiologic change in the brain This physical damage to the cells of the brain actually affects

how the brain functions Chronic use can produce toxic

psychosis characterized by confused disorganized behavior

paranoia hallucinations and delusions

3 MARIJUANA Short-term memory and the ability to make emergency

decisions are greatly impaired by marijuana use Impairment

of coordination judgment and perception of time can last

well past the feeling of being high produced by marijuana

Impairment of cognitive functions such as judgment and

problem solving can lead to poor decision-making with regard

to present and future outcomes

40PIOIDS Opioids are distributed throughout the body including the central nervous system where they have a psychoactive effect

The primary use of opioids is as an analgesic - a pain reliever The bio-behavioral effects include respiratory depression nausea impaired memory and attention There may be little or no observable impairment in someone intoxicated on opiates

THE DEFENDER 12

SElECTING EXPERT WITNESSES The mitigation specialist works with counsel to develop rhe

explanarion rhat will demonstrate and support rhe diagnosis

presented in court by the Expert Witness Their research

underscores the fact that abuse and neglect contribute to

psychological and mental disorders This constitutes a basis

for minimizing ones culpability in high stress situations such

as the commission ofa violent crime The most common adult

diagnoses found in these defendants include Mood Disorders

(depression anxiety etc) Post Traumatic Stress Disorder and

Dissociative Adjustment and Personality Disorders Research

into their history often uncovers previous childhood diagnoses

ofAttention Deficit Hyperactivity Disorder Conduct Disorder

Oppositional Defiant Disorder and learning disabilities as

well Of course its common to find a history of physical

and sexual abuse of rhe defendant andor his siblings What

the jury needs to hear is that these conditions could often

be improved with counseling and a structured environment

Time and again efforts at intervention have been made by

Childrens Protective Services Texas Youth Commission or

other agencies Often services have been offered or even put

in place However the services may not have been sought out

followed through on or completed by the caretakers Many

times there is clear evidence of a Treatment Plan having

been developed that was never implemented by the caregivers

(who had their own deficits) or by the agency staff charged

with insuring that the services were delivered This is another

situation over which the defendant had no control as a child

This information supports a case for leniency and needs to be

shared with the jury

To gather the information needed to chronicle the

developmental problems in a defendants childhood the

mitigation specialist uses interviews with him family members

willing to make themselves available and records such as

Childrens Protective Services Texas Youth Commission

Texas Department of Criminal Justice school districts and

whatever else can be found Its not uncommon for records

collection to extend to other states or even other countries

Its important to go back and look at the specific details of

charges made against the defendant especially in juvenile

situations The events may actually be a lot less offensive

than they are made to sound Picture a defendant who at

age 10 has been charged in a juvenile case with assaulting a

police officer who was trying to take him into custody When

looking at the narratives describing the situation from the

CPS perspective the explanation was right there in black and

white He didnt know where the police were taking him

He watched other officers take two of his siblings inside a

building and they didnt come out He kept saying he wanted

to go home What he didnt know was that his parents had

already refused to come and get them It is imperative that the

jury hear such a story

The mitigation specialist is helpful in bringing the Expert

Witness and the evidence together Their mental health

background will be particularly significant in helping counsel

decide who the best experts will be Your mitigation specialist

can help find experts who are willing and able to testify to only

what the defense needs and not be inclined to take control of

the situation

Armed with all of the information obtained by the mitigation

specialist the attorney has a variety of options regarding how

to use the information The attorney can use it to

Seek a plea agreement

Select a jury sensitive to the issues relative to the case

Elicit supportjve testimony during cross examination of

witnesses

Present a compelling story at punishment phase

In the effort to find a settlement certainly attorneys dont

want to unnecessarily reveal details of mitigation evidence

before trial However the duty to seek a plea for life must be

at the center of the defense teams goals in capital cases That

evidence will come trom your mitigation specialists research

With the decision in Miller vs Dretke mitigation is becoming

important in all felony cases Familiarize yourself with

mitigation specialists

THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT

MITIGATION IS NOT AN EXCUSE ITS AN EXPLANATION

E

THE DEFENDER 13

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

It is common for the defendant to be a young male in

the range of 17 to 29 years of age and no one should be

surprised by this The background of young males raised

in poverty abuse and neglect fosters violence and emotional

immaturity These young men are chronologically of legal

age but emotionally they may be operating at much younger

developmental stages This is evidenced by their short attention

span their poor decision- making abilities their lack of awareness

of the basic rights and boundaries of others their explosive

entry into emotions and their tendency to blame others for

their problems - all of which can be documented by records

and interviews

Another telltale sign of emotional immaturity is their persistent

need to protect their abusers usually parents or grandparents

Some will even go so far as to be protective of former foster

parents Children (and psychologically these defendants are

still children) desperately want to make their caretakers seem

loving and caring They do this to avoid having to acknowledge

that those persons who were supposed to protect them actually

were the people they should have feared the most That level

of sel fish ness and lack of empathy in a caretaker is very hard

for a child to absorb The terror inherent in that knowledge

is unmanageable Blaming the adult is too painful Thats why

children take responsibility for things they couldnt possibly

have foreseen or caused or prevented When the time comes to

discuss with the defendant the mitigating reasons the attorneys

plan to use in his defense he may be very distrustful This is

when he must embrace the reality about his parents andor

caretakers The mitigation specialist can help him separate the

act of loving ones children from the job of parenting them

There is a widely recognized psychological theory that explains

human development over the life span and is taught as basic

theory to Psych 101 students It was framed by renowned

20th century psychoanalyst Erik Erikson (1902-1994) This

theory divides the life span into stages and attributes a specific

developmental task to each stage The tasks required for healthy

development through childhood and early adolescence include

trust autonomy initiative identity and individuality When

one or more of these tasks are not successfully accomplished

in one stage the child continues to grow chronologically but

his emotional development is damaged In the case of severe

abuse andor neglect its very common for more than one

developmental stage to be derailed Abuse that begins early

in childhood such as in infancy damages the childs ability to

discern empathy A toddler (age 2-4) is famous for imitation

If the toddlers caretakers are smoking dope and never leave

the sofa except to hit each other or conduct a drug sale the

jury needs to appreciate what they would have imitated Four

to six year olds are developing a moral compass self-es teem

and a sense of group interaction If the jury hears that the

defendant was left alone for long periods of time during his

childhood they can recognize how the defendants sense of

self became profoundly skewed Six- to twelve-year- olds are

focused on skill building and concrete operations - things

they wont learn if they are not attending school regularly

or able to absorb whats being taught Early adolescence (up

to age 18) is famous for peer pressure and the need to lit in

vith same age peers If the only examples of peer relationships

documented in their caretakers and in their neighborhoods are

gang members criminal associations or tricks the jury will

empathize vith their choice of fiiends Later adolescence (up

to age 22-25) involves identity formation The good news here

lies in their emotional immaturity Many of these young men are

still stuck in a chronologically inappropriate developmental stage

Therefore their identity is still up for grabs The jury must hear

that intervention at this stage can truly be life changing

There are so many young men from abusive poverty stricken

neglectful family systems about whom one might say There

but for the grace of God go 1 Its probably true that none

of us gets out of childhood without a scratch Everyone enters

adulthood Jacking something because no parents are capable of

doing their job perfectly However the problems commonly

seen in criminal defendants usually stem from more bad luck

than one person ought to experience Psychological theory

indicates that development is a product of inherited factors life

experiences personal choices societal expectations and chance

These defendants are victims of thei r biology and genealogy

Unfortunately for them these are tllings over which they have no

control The jury wiU value hearing what the defendant was exposed

to in his childhood Heres a ust of the most common things

Drug addicted caretakers

Drug dealing caretakers

Prostiultion as a career choice in caretakers

Criminal activity used as a means to pay the bills

Mental illness andor acute emotional disturbance

in caretakers

Severe poverty

Lack of supervision

Sporadic school attendance

Frequent changes in caretakers

Whereabouts of biological parents unknown

Physical abuse of self andor siblings

Sexual abuse of self andor siblings

Numerous changes in residence

The jury would certainly have been moved to hear that while

working at Childrens Protective Services I had a case in

which an elementary school aged child came home to find his

familys apartment empty His mother failed to mention she

was moving that day True story

DISEASE ANDOR INJURY The mitigation specialistS research into a defendants

medical history may reveal injury or disease that the medical

establishment readily acknowledges causes some degree of

neurological damage or disturbance The injury may in fact

have been caused by physical andor sexual abuse of the

child Testimony regarding this history from a medical expert

can be gripping to the jury and give even just one member

justification for lenience

THERE ARE SO MANY YOUNG MEN FROM

ABUSIVE POVERTY STRICKEN NEGLECTFUL

FAMILY SYSTEMS ABOUT WHOM ONE MIGHT

SAY THERE BUT FOR THE GRACE OF GOD GO

I ITS PROBABLY TRUE THAT NONE OF US GETS

OUT OF CHILDHOOD WITHOUT A SCRATCH

THE DEFENDER 1lt 11

THE MOST COMMON ADULT DIAGNOSES FOUND IN THESE DEFENDANTS INCLUDE

MOOD DISORDERS (DEPRESSION ANXIETY ETC) POST TRAUMATIC STRESS

DISORDER AND DISSOCIATIVE ADJUSTMENT AND PERSONALITY DISORDERS

SUBSTANCE ABUSE AND DEPENDENCE Drug abuse and dependence can also explain what mitigates

rhe defendants criminal actions The most commonly abused

drugs include alcohol stimulants marijuana and opioids

Whar follows are some basic details of what the jury probably

doesnt know about the effects of these commonly used

drugs

1 ALCOHOL Alcohol affects practically every organ in the body and alters

the activity of most major neurochemicals It produces a dose

dependent decrease in cognitive and motor functioning As Blood Alcohol Concentration (BAC) rises the impairment increases People rarely look obviously intoxicated at BAC

levels that produce impairment One of the most pronounced

effects of alcohol is on divided attention tasks

2 STIMULANTS It is well known that tolerance to stimulants develops rapidly

Evidence exists that prolonged use of stimulants seems to

bring about sustained neurophysiologic change in the brain This physical damage to the cells of the brain actually affects

how the brain functions Chronic use can produce toxic

psychosis characterized by confused disorganized behavior

paranoia hallucinations and delusions

3 MARIJUANA Short-term memory and the ability to make emergency

decisions are greatly impaired by marijuana use Impairment

of coordination judgment and perception of time can last

well past the feeling of being high produced by marijuana

Impairment of cognitive functions such as judgment and

problem solving can lead to poor decision-making with regard

to present and future outcomes

40PIOIDS Opioids are distributed throughout the body including the central nervous system where they have a psychoactive effect

The primary use of opioids is as an analgesic - a pain reliever The bio-behavioral effects include respiratory depression nausea impaired memory and attention There may be little or no observable impairment in someone intoxicated on opiates

THE DEFENDER 12

SElECTING EXPERT WITNESSES The mitigation specialist works with counsel to develop rhe

explanarion rhat will demonstrate and support rhe diagnosis

presented in court by the Expert Witness Their research

underscores the fact that abuse and neglect contribute to

psychological and mental disorders This constitutes a basis

for minimizing ones culpability in high stress situations such

as the commission ofa violent crime The most common adult

diagnoses found in these defendants include Mood Disorders

(depression anxiety etc) Post Traumatic Stress Disorder and

Dissociative Adjustment and Personality Disorders Research

into their history often uncovers previous childhood diagnoses

ofAttention Deficit Hyperactivity Disorder Conduct Disorder

Oppositional Defiant Disorder and learning disabilities as

well Of course its common to find a history of physical

and sexual abuse of rhe defendant andor his siblings What

the jury needs to hear is that these conditions could often

be improved with counseling and a structured environment

Time and again efforts at intervention have been made by

Childrens Protective Services Texas Youth Commission or

other agencies Often services have been offered or even put

in place However the services may not have been sought out

followed through on or completed by the caretakers Many

times there is clear evidence of a Treatment Plan having

been developed that was never implemented by the caregivers

(who had their own deficits) or by the agency staff charged

with insuring that the services were delivered This is another

situation over which the defendant had no control as a child

This information supports a case for leniency and needs to be

shared with the jury

To gather the information needed to chronicle the

developmental problems in a defendants childhood the

mitigation specialist uses interviews with him family members

willing to make themselves available and records such as

Childrens Protective Services Texas Youth Commission

Texas Department of Criminal Justice school districts and

whatever else can be found Its not uncommon for records

collection to extend to other states or even other countries

Its important to go back and look at the specific details of

charges made against the defendant especially in juvenile

situations The events may actually be a lot less offensive

than they are made to sound Picture a defendant who at

age 10 has been charged in a juvenile case with assaulting a

police officer who was trying to take him into custody When

looking at the narratives describing the situation from the

CPS perspective the explanation was right there in black and

white He didnt know where the police were taking him

He watched other officers take two of his siblings inside a

building and they didnt come out He kept saying he wanted

to go home What he didnt know was that his parents had

already refused to come and get them It is imperative that the

jury hear such a story

The mitigation specialist is helpful in bringing the Expert

Witness and the evidence together Their mental health

background will be particularly significant in helping counsel

decide who the best experts will be Your mitigation specialist

can help find experts who are willing and able to testify to only

what the defense needs and not be inclined to take control of

the situation

Armed with all of the information obtained by the mitigation

specialist the attorney has a variety of options regarding how

to use the information The attorney can use it to

Seek a plea agreement

Select a jury sensitive to the issues relative to the case

Elicit supportjve testimony during cross examination of

witnesses

Present a compelling story at punishment phase

In the effort to find a settlement certainly attorneys dont

want to unnecessarily reveal details of mitigation evidence

before trial However the duty to seek a plea for life must be

at the center of the defense teams goals in capital cases That

evidence will come trom your mitigation specialists research

With the decision in Miller vs Dretke mitigation is becoming

important in all felony cases Familiarize yourself with

mitigation specialists

THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT

MITIGATION IS NOT AN EXCUSE ITS AN EXPLANATION

E

THE DEFENDER 13

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

to age 22-25) involves identity formation The good news here

lies in their emotional immaturity Many of these young men are

still stuck in a chronologically inappropriate developmental stage

Therefore their identity is still up for grabs The jury must hear

that intervention at this stage can truly be life changing

There are so many young men from abusive poverty stricken

neglectful family systems about whom one might say There

but for the grace of God go 1 Its probably true that none

of us gets out of childhood without a scratch Everyone enters

adulthood Jacking something because no parents are capable of

doing their job perfectly However the problems commonly

seen in criminal defendants usually stem from more bad luck

than one person ought to experience Psychological theory

indicates that development is a product of inherited factors life

experiences personal choices societal expectations and chance

These defendants are victims of thei r biology and genealogy

Unfortunately for them these are tllings over which they have no

control The jury wiU value hearing what the defendant was exposed

to in his childhood Heres a ust of the most common things

Drug addicted caretakers

Drug dealing caretakers

Prostiultion as a career choice in caretakers

Criminal activity used as a means to pay the bills

Mental illness andor acute emotional disturbance

in caretakers

Severe poverty

Lack of supervision

Sporadic school attendance

Frequent changes in caretakers

Whereabouts of biological parents unknown

Physical abuse of self andor siblings

Sexual abuse of self andor siblings

Numerous changes in residence

The jury would certainly have been moved to hear that while

working at Childrens Protective Services I had a case in

which an elementary school aged child came home to find his

familys apartment empty His mother failed to mention she

was moving that day True story

DISEASE ANDOR INJURY The mitigation specialistS research into a defendants

medical history may reveal injury or disease that the medical

establishment readily acknowledges causes some degree of

neurological damage or disturbance The injury may in fact

have been caused by physical andor sexual abuse of the

child Testimony regarding this history from a medical expert

can be gripping to the jury and give even just one member

justification for lenience

THERE ARE SO MANY YOUNG MEN FROM

ABUSIVE POVERTY STRICKEN NEGLECTFUL

FAMILY SYSTEMS ABOUT WHOM ONE MIGHT

SAY THERE BUT FOR THE GRACE OF GOD GO

I ITS PROBABLY TRUE THAT NONE OF US GETS

OUT OF CHILDHOOD WITHOUT A SCRATCH

THE DEFENDER 1lt 11

THE MOST COMMON ADULT DIAGNOSES FOUND IN THESE DEFENDANTS INCLUDE

MOOD DISORDERS (DEPRESSION ANXIETY ETC) POST TRAUMATIC STRESS

DISORDER AND DISSOCIATIVE ADJUSTMENT AND PERSONALITY DISORDERS

SUBSTANCE ABUSE AND DEPENDENCE Drug abuse and dependence can also explain what mitigates

rhe defendants criminal actions The most commonly abused

drugs include alcohol stimulants marijuana and opioids

Whar follows are some basic details of what the jury probably

doesnt know about the effects of these commonly used

drugs

1 ALCOHOL Alcohol affects practically every organ in the body and alters

the activity of most major neurochemicals It produces a dose

dependent decrease in cognitive and motor functioning As Blood Alcohol Concentration (BAC) rises the impairment increases People rarely look obviously intoxicated at BAC

levels that produce impairment One of the most pronounced

effects of alcohol is on divided attention tasks

2 STIMULANTS It is well known that tolerance to stimulants develops rapidly

Evidence exists that prolonged use of stimulants seems to

bring about sustained neurophysiologic change in the brain This physical damage to the cells of the brain actually affects

how the brain functions Chronic use can produce toxic

psychosis characterized by confused disorganized behavior

paranoia hallucinations and delusions

3 MARIJUANA Short-term memory and the ability to make emergency

decisions are greatly impaired by marijuana use Impairment

of coordination judgment and perception of time can last

well past the feeling of being high produced by marijuana

Impairment of cognitive functions such as judgment and

problem solving can lead to poor decision-making with regard

to present and future outcomes

40PIOIDS Opioids are distributed throughout the body including the central nervous system where they have a psychoactive effect

The primary use of opioids is as an analgesic - a pain reliever The bio-behavioral effects include respiratory depression nausea impaired memory and attention There may be little or no observable impairment in someone intoxicated on opiates

THE DEFENDER 12

SElECTING EXPERT WITNESSES The mitigation specialist works with counsel to develop rhe

explanarion rhat will demonstrate and support rhe diagnosis

presented in court by the Expert Witness Their research

underscores the fact that abuse and neglect contribute to

psychological and mental disorders This constitutes a basis

for minimizing ones culpability in high stress situations such

as the commission ofa violent crime The most common adult

diagnoses found in these defendants include Mood Disorders

(depression anxiety etc) Post Traumatic Stress Disorder and

Dissociative Adjustment and Personality Disorders Research

into their history often uncovers previous childhood diagnoses

ofAttention Deficit Hyperactivity Disorder Conduct Disorder

Oppositional Defiant Disorder and learning disabilities as

well Of course its common to find a history of physical

and sexual abuse of rhe defendant andor his siblings What

the jury needs to hear is that these conditions could often

be improved with counseling and a structured environment

Time and again efforts at intervention have been made by

Childrens Protective Services Texas Youth Commission or

other agencies Often services have been offered or even put

in place However the services may not have been sought out

followed through on or completed by the caretakers Many

times there is clear evidence of a Treatment Plan having

been developed that was never implemented by the caregivers

(who had their own deficits) or by the agency staff charged

with insuring that the services were delivered This is another

situation over which the defendant had no control as a child

This information supports a case for leniency and needs to be

shared with the jury

To gather the information needed to chronicle the

developmental problems in a defendants childhood the

mitigation specialist uses interviews with him family members

willing to make themselves available and records such as

Childrens Protective Services Texas Youth Commission

Texas Department of Criminal Justice school districts and

whatever else can be found Its not uncommon for records

collection to extend to other states or even other countries

Its important to go back and look at the specific details of

charges made against the defendant especially in juvenile

situations The events may actually be a lot less offensive

than they are made to sound Picture a defendant who at

age 10 has been charged in a juvenile case with assaulting a

police officer who was trying to take him into custody When

looking at the narratives describing the situation from the

CPS perspective the explanation was right there in black and

white He didnt know where the police were taking him

He watched other officers take two of his siblings inside a

building and they didnt come out He kept saying he wanted

to go home What he didnt know was that his parents had

already refused to come and get them It is imperative that the

jury hear such a story

The mitigation specialist is helpful in bringing the Expert

Witness and the evidence together Their mental health

background will be particularly significant in helping counsel

decide who the best experts will be Your mitigation specialist

can help find experts who are willing and able to testify to only

what the defense needs and not be inclined to take control of

the situation

Armed with all of the information obtained by the mitigation

specialist the attorney has a variety of options regarding how

to use the information The attorney can use it to

Seek a plea agreement

Select a jury sensitive to the issues relative to the case

Elicit supportjve testimony during cross examination of

witnesses

Present a compelling story at punishment phase

In the effort to find a settlement certainly attorneys dont

want to unnecessarily reveal details of mitigation evidence

before trial However the duty to seek a plea for life must be

at the center of the defense teams goals in capital cases That

evidence will come trom your mitigation specialists research

With the decision in Miller vs Dretke mitigation is becoming

important in all felony cases Familiarize yourself with

mitigation specialists

THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT

MITIGATION IS NOT AN EXCUSE ITS AN EXPLANATION

E

THE DEFENDER 13

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

THE MOST COMMON ADULT DIAGNOSES FOUND IN THESE DEFENDANTS INCLUDE

MOOD DISORDERS (DEPRESSION ANXIETY ETC) POST TRAUMATIC STRESS

DISORDER AND DISSOCIATIVE ADJUSTMENT AND PERSONALITY DISORDERS

SUBSTANCE ABUSE AND DEPENDENCE Drug abuse and dependence can also explain what mitigates

rhe defendants criminal actions The most commonly abused

drugs include alcohol stimulants marijuana and opioids

Whar follows are some basic details of what the jury probably

doesnt know about the effects of these commonly used

drugs

1 ALCOHOL Alcohol affects practically every organ in the body and alters

the activity of most major neurochemicals It produces a dose

dependent decrease in cognitive and motor functioning As Blood Alcohol Concentration (BAC) rises the impairment increases People rarely look obviously intoxicated at BAC

levels that produce impairment One of the most pronounced

effects of alcohol is on divided attention tasks

2 STIMULANTS It is well known that tolerance to stimulants develops rapidly

Evidence exists that prolonged use of stimulants seems to

bring about sustained neurophysiologic change in the brain This physical damage to the cells of the brain actually affects

how the brain functions Chronic use can produce toxic

psychosis characterized by confused disorganized behavior

paranoia hallucinations and delusions

3 MARIJUANA Short-term memory and the ability to make emergency

decisions are greatly impaired by marijuana use Impairment

of coordination judgment and perception of time can last

well past the feeling of being high produced by marijuana

Impairment of cognitive functions such as judgment and

problem solving can lead to poor decision-making with regard

to present and future outcomes

40PIOIDS Opioids are distributed throughout the body including the central nervous system where they have a psychoactive effect

The primary use of opioids is as an analgesic - a pain reliever The bio-behavioral effects include respiratory depression nausea impaired memory and attention There may be little or no observable impairment in someone intoxicated on opiates

THE DEFENDER 12

SElECTING EXPERT WITNESSES The mitigation specialist works with counsel to develop rhe

explanarion rhat will demonstrate and support rhe diagnosis

presented in court by the Expert Witness Their research

underscores the fact that abuse and neglect contribute to

psychological and mental disorders This constitutes a basis

for minimizing ones culpability in high stress situations such

as the commission ofa violent crime The most common adult

diagnoses found in these defendants include Mood Disorders

(depression anxiety etc) Post Traumatic Stress Disorder and

Dissociative Adjustment and Personality Disorders Research

into their history often uncovers previous childhood diagnoses

ofAttention Deficit Hyperactivity Disorder Conduct Disorder

Oppositional Defiant Disorder and learning disabilities as

well Of course its common to find a history of physical

and sexual abuse of rhe defendant andor his siblings What

the jury needs to hear is that these conditions could often

be improved with counseling and a structured environment

Time and again efforts at intervention have been made by

Childrens Protective Services Texas Youth Commission or

other agencies Often services have been offered or even put

in place However the services may not have been sought out

followed through on or completed by the caretakers Many

times there is clear evidence of a Treatment Plan having

been developed that was never implemented by the caregivers

(who had their own deficits) or by the agency staff charged

with insuring that the services were delivered This is another

situation over which the defendant had no control as a child

This information supports a case for leniency and needs to be

shared with the jury

To gather the information needed to chronicle the

developmental problems in a defendants childhood the

mitigation specialist uses interviews with him family members

willing to make themselves available and records such as

Childrens Protective Services Texas Youth Commission

Texas Department of Criminal Justice school districts and

whatever else can be found Its not uncommon for records

collection to extend to other states or even other countries

Its important to go back and look at the specific details of

charges made against the defendant especially in juvenile

situations The events may actually be a lot less offensive

than they are made to sound Picture a defendant who at

age 10 has been charged in a juvenile case with assaulting a

police officer who was trying to take him into custody When

looking at the narratives describing the situation from the

CPS perspective the explanation was right there in black and

white He didnt know where the police were taking him

He watched other officers take two of his siblings inside a

building and they didnt come out He kept saying he wanted

to go home What he didnt know was that his parents had

already refused to come and get them It is imperative that the

jury hear such a story

The mitigation specialist is helpful in bringing the Expert

Witness and the evidence together Their mental health

background will be particularly significant in helping counsel

decide who the best experts will be Your mitigation specialist

can help find experts who are willing and able to testify to only

what the defense needs and not be inclined to take control of

the situation

Armed with all of the information obtained by the mitigation

specialist the attorney has a variety of options regarding how

to use the information The attorney can use it to

Seek a plea agreement

Select a jury sensitive to the issues relative to the case

Elicit supportjve testimony during cross examination of

witnesses

Present a compelling story at punishment phase

In the effort to find a settlement certainly attorneys dont

want to unnecessarily reveal details of mitigation evidence

before trial However the duty to seek a plea for life must be

at the center of the defense teams goals in capital cases That

evidence will come trom your mitigation specialists research

With the decision in Miller vs Dretke mitigation is becoming

important in all felony cases Familiarize yourself with

mitigation specialists

THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT

MITIGATION IS NOT AN EXCUSE ITS AN EXPLANATION

E

THE DEFENDER 13

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

the jury needs to hear is that these conditions could often

be improved with counseling and a structured environment

Time and again efforts at intervention have been made by

Childrens Protective Services Texas Youth Commission or

other agencies Often services have been offered or even put

in place However the services may not have been sought out

followed through on or completed by the caretakers Many

times there is clear evidence of a Treatment Plan having

been developed that was never implemented by the caregivers

(who had their own deficits) or by the agency staff charged

with insuring that the services were delivered This is another

situation over which the defendant had no control as a child

This information supports a case for leniency and needs to be

shared with the jury

To gather the information needed to chronicle the

developmental problems in a defendants childhood the

mitigation specialist uses interviews with him family members

willing to make themselves available and records such as

Childrens Protective Services Texas Youth Commission

Texas Department of Criminal Justice school districts and

whatever else can be found Its not uncommon for records

collection to extend to other states or even other countries

Its important to go back and look at the specific details of

charges made against the defendant especially in juvenile

situations The events may actually be a lot less offensive

than they are made to sound Picture a defendant who at

age 10 has been charged in a juvenile case with assaulting a

police officer who was trying to take him into custody When

looking at the narratives describing the situation from the

CPS perspective the explanation was right there in black and

white He didnt know where the police were taking him

He watched other officers take two of his siblings inside a

building and they didnt come out He kept saying he wanted

to go home What he didnt know was that his parents had

already refused to come and get them It is imperative that the

jury hear such a story

The mitigation specialist is helpful in bringing the Expert

Witness and the evidence together Their mental health

background will be particularly significant in helping counsel

decide who the best experts will be Your mitigation specialist

can help find experts who are willing and able to testify to only

what the defense needs and not be inclined to take control of

the situation

Armed with all of the information obtained by the mitigation

specialist the attorney has a variety of options regarding how

to use the information The attorney can use it to

Seek a plea agreement

Select a jury sensitive to the issues relative to the case

Elicit supportjve testimony during cross examination of

witnesses

Present a compelling story at punishment phase

In the effort to find a settlement certainly attorneys dont

want to unnecessarily reveal details of mitigation evidence

before trial However the duty to seek a plea for life must be

at the center of the defense teams goals in capital cases That

evidence will come trom your mitigation specialists research

With the decision in Miller vs Dretke mitigation is becoming

important in all felony cases Familiarize yourself with

mitigation specialists

THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT

MITIGATION IS NOT AN EXCUSE ITS AN EXPLANATION

E

THE DEFENDER 13

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

THEDEFENDER] WINTER 07

ISTRATEGY

Carpet -B9mbing THE WItness

By Joseph W Varela

FOR EXAMPLE TAKE THE CENTER OF ALARGE CITY AND IMAGINE WHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT FOR MY PART I HAVE NO DOUBT THAT ITS IMPACT UPON THE PEOPLE WOULD BE TERRIBLE WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO TEN TWENTY FIFTY CITIES IN SHORT NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF

IMMINENT DEATH AND DESTRUCTION Giulio Douhet The Command of the Air (1921)

HOW FAR CAN A CIVILIZED INDIVIDUAL - OR NATION - GO WHEN ENGAGING IN SERIOUS CONFLICT Newark defense lawyer Seymour Wishman was visiting in a hospital one evening A nurse tried to attack him screaming Thats the lawyer thats the motherf- --ing lawyer He had represented her alleged rapist in a trial a few months before in which his client was acquitted Wishman reproduces his cross--examination in his book I

Wishman Isnt it a fact that after you met the defendant at a bar you asked him if he wanted to have a good time

COMPLAINANT NO THATS ALIE Q Isnt it true that you took him and his three friends back to your apartment and had that good time

A No

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

~-~sI=~~~~~

Q And after you had that good time didnt you ask tor money

A No such way

Q Isnt it a fact tbat the only reason you made a complaint was because you were furious for not getting paid

A No No Thats a lie

Q You claim to have been raped and sodomized As a nurse you surely have an idea of the effect of such an assault on a womans body Are you aware that the police doctor found no evidence of force or trauma

A I dont know what the doctors found

Q Isnt it a fact that you got what you bargained c)r

A No

Q Then isnt that why you made the complaint to the police- you were angry that my

client hadnt paid you that you hadnt gotten what you bargained for

Reflecting on the events Wish man broods Maybe I hadnt done anything unethical-legally unethical In fact I might have been doing what I as a lavvyer was required to do I had ignored the larger moral and emotional implications of my actions 2

The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts I was concerned about the moral legitimacy of my own behavior in ways I had never seen before and it

was disturbing 3

Are there moral limits to conflict

It is well known that during World War II the Allies bombed cities in Germany Air Marshal Arthur

Harris chief of British Bomber Command was a follower of interwar theories of combat that stressed the war-ending capability of destruction of enemy

cities by air4 The Royal

Air Force flew almost exclusively at night and practiced what they called area bombing which amounted to bringing large numbers of heavy bombers over densely populated cities and letting go 5 No attempt was made to

restrict targets to those of military importance the bombing was designed to break the German

citizens morale 6

RAF Avro Lancaster heavy bomber

THE DEFENDER -(( 15

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

The air war over Germany is still the subject of controversy six decades after the fact Two recent books consider the moral dimension British historian Robin Neillands examines the evidence and concludes that the British carpet-bombing was militarily justifiable World War II was a conflict of the highest stakes one in which Britains existence and the survival of its subjects were in doubt Germany had declared total war and its practices included siege warfare8 carpet-bombing of cities and industrial mass murder Neillands argues that once Germany started total war any method that could be justified in military terms was admissible the more the better to end the war quickly The bombing of Germanys heartland arguably hindered its military capability That it killed 600000 civilians9 was incident to the war

Examining the same evidence British historian and philosopher Ac Grayling concludes that the RAF

night-bombing was a war crime1 0 Grayling holds that any force in any conflict to be moral must be both necessary and proportional Grayling condemns the British night area bombing as neither He finds that its contribution to the war effort was minimal and that the suffering it imposed on civilians was disproportional to the danger to Britain li

This is not the place to decide among the claims concerning the conduct of the war RAther the discourse informs criminal lawyers of the moral considerations when contemplating the destruction of a witness Grayling would ask Is the intended treatment of the witness both necessary and proportional Only if both questions can be answered yes should we proceed Neillands would have us look at the intended action without benefit of hindsight and determine whether it would help the defense if so it must be done 12

Criminal trials frequently involve high stakes particularly for defendants A loss can mean years in prison or even death A defense lawyer at least as much as any other kind owes a high duty to his client to advocate his clients interests 13

The rules of professional conduct provide

a lawyer should act with competence commitment

and dedication to the interest of the client and with zeal in advocacy upon the clients behalf 14

As advocate a lawyer zealously asserts the clients position under the rules of the adversary system 15

Reading these rules it would seem that carpet-bombing

a witness Wishman-style is always justified if it is in the interest of the defendant This is essentially Neillandss

view of British bombing

Hamburg summer 1943

Is there room for the defense lawyer to ask Graylings questions of necessity and proportionality) Consider these

provisions of the disciplinary rules

A lawyer is a representative of clients an officer of the legal system and a public citizen having special responsibility for

the quality of justice Lawyers as guardians of the law playa vital role in the preservation of societyl6

A lawyer should use the laws procedures only for legitimate purposes and not to harass or intimidate

others 17

Can the lawyer balance his duty to his client against the damage to another that might be caused by

such cross Does the lavvyer owe some obligation to the society at large Does carpet-bombing lower

the criminal justice system in the eyes of the public If it does should lawyers be concerned

Wish man mulling over these issues concludes that Preserving our criminal-justice system worthy

as that goal might be was becoming far too narrow and abstract a concept to provide me any

comfort 18 Not long after publishing his introspections he retired from the law and became

president of First Run Features a distributor of independently produced films 19

Seymour Wishman Confessions ofa Criminal Lawyer ( 1981 ) chapter I 2 M chapter IV 3 M chapter VIJJ 4 The hypothesis that concentrated urban bombardment could end wars almost instantly was advanced in Giulio Do uhet 1 dominio delaria (1921) trans by Dino Ferrari as The

Command ofthe Ar ( 1942) Douhet argued that an air force should consist entirely of heavy bombers aimed at civilians A pioneering American theorist advocated a mo re balanced force directed against military and industrial targets See William Mitchell Winged Defense

The Development and Possibilities of Modern Air Power Economic and Military ( 1925) 5 Also call ed perhaps more accurately carpet bombing or saturation bombing 6 The US Arm y Air Force in Europe practiced daylight precision bombing It was anything bu t precise and civili an collateral casualties were high but the targets were military transportation and industry and it made a vit al contribution to ending th e war 7 Robin Neillands The Bomber War The AllIed Air Offensive Against NazI Germany

(2001) 8 The siege of Leningrad caused over a millio n civilian deaths by sta rvati on and disease See Harrison Salisbury The 900 Days The Siege of Leningrad ( 1969 )

9 Neillands QU ci t chapter 17 10 AC Grayling Among the Dead Cities The History and Moral Legacy ofthe WWI Bombing

ofCivilians in Germany and Japan (2006 )

11 Grayling Q2 cit chapters 7 and 9 Grayling acquits Amltrican daylight bombing but he al so indicts American area bombing in Japan In a nine-month campaign including Hiroshima and Nagasaki 900000 civilians were killed Neillands 41 cit chapter 17 12As Col Paul Tibbets who flew the Enola Gay to Hiroshima put it You vlt got to

take stock an d assess the situation at that time We were at war You use anything at your disposaL Julie Carr Smyth Pilot of Plane that Dropped A- Bomb Dies Homlo

Chronicle November 2 2007 13 Prosecu to rs have a di ffe rent obligation It shall be the primary duty of all prosecuting attorneys including any special prosecutors not to convict but to see that justice is done Tex Code Crim Pro Art 201 14 TexDisciplinary RProfConducl Rule 101 Com petent and Diligent Representation Comment 6 15 TexDisciplinary RProfConducl Preamble A Lawyers Responsibilities 2 Accord Monreal v State 923 SW2d 61 (Te x App - San Antonio 1996) (Hardberger ) disse nting ) Rut a dtfense counsel has one overriding responsibility to provide the most effec tive assis tance to her or his client that they are ca pable of giving 16 TexDisciplinary RProfConduct Preamble A Lawye rs Responsibilities 1 17 TexDisciplinary RProfConduct Preamble A LawyerS Responsibilities 4 18 Wish man 41 cit chapter IV 19 Peter M Nichols Finding a Place for Small Movies in the Rig Picture New York

Tmes June 14 1998

TilE DEFENDER 0(( 11

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REASONABLE DOUBT

TODD DUPONT

THURSDAYS AT 800 PM CABLE ACCESS CHANNa 17

SPONSORED BY HeCLA

THEDEFENDER] WINTER 07

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THE DEFENDER 20

THEDEFENDER] WINTER 07

Notes OF Interest

advertising rates

FULL INSIDE PAGE [NON-COYER] - $70000 per issue I $252000 per year

INSIDE FRONT COYER - $80000 per issue I $288000 per year

INSIDE BACK COYER - $750 00 per issue I $270000 per year

BACK COYER - $80000 per issue I $288000 per year

213 PAGE - $60000 per issue I $216000 per year

112 PAGE - $50000 per issue I $180000 per year

13 PAGE - $40000 per issue I $144000 per year

14 PAGE - $25000 per issue I $900 00 per year

BUSINESS CARD SIZE - $12500 per issue I $45000 per year

THE DEFENDER 20

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Pro~des continuing legal education programs for improving

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Promotes ajust application of the court-appointed lawyer

system for indigent persons charged with criminal offenses

Files amicus curiae briefs in support of freedom and

human rights

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IF QUESTIONS CALL NICOLE AT 713-526-6300

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