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Five Criminal Justice Myths You Should Know

 Posted on July 14,2016 in Practical Advice

Most people don’t expect to get arrested. When it happens, a range of emotions can hit you, from anger, to disbelief, to pure panic. But after the initial shock wears off, you’ll start to think about the best way to protect yourself. In trying to figure out how to react to your new reality, you probably won’t be relying on direct experience (unless you’re used to getting arrested all the time!). Instead, you’ll rely on what you consider common knowledge of how the criminal justice system works. But be careful, because many of the “truths” about how the system works are in fact nothing but myths. Here’s five “Criminal Justice Myths” that you should stop believing in:

1. If the Officer doesn’t read my Miranda Rights, my case will get dismissed.

“Mirands Warnings” are a list of rights that you’ve heard on television a million times: the right to remain silent, the right to talk to an attorney, and the right to know that anything you say can and will be used against you in Court. I’m sure you have a favorite Miranda scene in a Movie. Mine is from the “Dragnet” remake with Tom Hanks and Dan Aykroyd.

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Texas Grand Jury Reform Does Not Go Far Enough

 Posted on November 02,2015 in Uncategorized

Governor Greg Abbott recently signed a law which make significant changes to the way a grand jury is selected. The old “pick your pal” method of selecting grand jurors is now history, but the new law doesn’t address other problems with the grand jury process.

How the grand jury selection process used to work:

A grand jury is a group of 12 citizens selected in a particular jurisdiction to decide whether a person should be indicted for a felony offense. Unlike the familiar jury in the courtroom (the “petit jury”), which is empaneled to decide whether a person is guilty or innocent of a crime, the grand jury has to answer a “threshold” question — whether there is probable cause to accuse aperson of a specific crime or crimes. So the grand jury acts as the justice system’s gatekeeper.

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What is the difference between a writ and a direct appeal?

 Posted on October 23,2015 in Post Conviction

Many potential clients have come to me wanting to “do something” about their conviction or the conviction of a loved one. I’ve found that the post-conviction process can be difficult to understand, so here’s a primer that might help. Let me emphasize that this is just a basic introduction — to find out what you or a family member need to do after an actual conviction you’ll need to seek a consultation with an attorney.

Direct Appeals

  1. Direct appeals are limited to the trial record. That means only words typed by the court reporter or documents filed with the district clerk can be reviewed for potential issues to appeal.
  2. You can only appeal issues that were preserved. So your attorney had to object to something the State did, or file a written motion complaining about an issue. Normally an objection has to be timely — you can’t wait until the next day to complain about an objectionable question asked by the prosecutor. The upshot of “preserving” error is to make the trial court aware of the issue with enough clarity for the Court to make a ruling on it, AND for the Court to then actually make a ruling.

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The Michael Morton Act Highlight Reel

 Posted on October 16,2015 in Pretrial

Once upon a time in a not-so-distantpast a prosecutor named Ken Anderson decided that he wanted to send a man named Michael Morton to prison for killing his (Mr. Morton’s) wife. The only problem was that Mr. Morton didn’t actually commit the murder.

But Mr. Anderson couldn’t be troubled with such stubborn facts, so he deliberately withheld exculpatory evidence during the trial. Mr. Morton was found guilty and served 25 years in prison. The withheld evidence included a blood-soaked bandana found at the crime scene that belonged to Mark Allan Norwood, the man ultimately convicted of the murder of Mr. Morton’s wife and another woman.

This awful series of events eventually led to the disbarment of Mr. Anderson (who had subsequently beenelected to a district court bench), a finding of contempt (with a sentence of just ten days in jail, which seems a bit soft-handed in light of the 25 years served by Mr. Morton), and an agreed audit of every Williamson County case handled by Mr. Anderson (read about that little-know fact here).

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Beware Your Pretrial Conditions of Bond

 Posted on October 12,2015 in Uncategorized

Defendants new to the criminal justice system in Texas often don’t understand the hazards of being on pretrial conditions of bond. People generally think you simply find a bondsman, pay them 10 percent of the bond amount, then do a quick walk through the local county jail and wait for your case to get resolved. Few defendants understand how easy it is for a judge to issue an order of arrest and place them back in jail indefinitely, and few defense attorneys properly explain this process to their clients. If you are out on bond facing criminal charges, here’s a few pointers.

First, expect to log in some serious time while waiting for your case to get resolved. You might be surprised to find out that defendants on conditions of bond have to report tothe same system as those who have already been found guilty of a crime — the Adult Probation Department.This means that on a monthly or even weekly basis you have to drive to a probation office. You also have tosubmit to drug tests just like you would while on probation. You can get drug tested at court, when you go to meet your probation officer, or you may get a call for a random drug test at any time. And remember, you haven’t been convicted of crime!

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Interesting Bribe case out of Dallas Court of Appeals

 Posted on April 01,2015 in Uncategorized

On March 25, 2015, the Fifth Court of Appeals in Dallas reversed various bribery-related convictions of David Cary. Mr. Cary had been accused of secretly funneling money to attorney Suzanne Wooten, who was running for the 380th District Court bench in Collin County, which is just north of Dallas.

According to the opinion of the Fifth Court of Appeals:

“Boiled down, the State’s theory in this case was that the Carys [referring to David Cary and his wife, Stacy Stine Cary, who was also charged and convicted of bribery] secretly funded Wooten’s campaign for elective office. And the only evidence of a benefit to Wooten in this case was that Stacy Cary gave money to Spencer [the judicial candidate’s campaign manager] and Spencer used it in connection with Wooten’s campaign.”

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Revised Online Solicitation of a Minor Statute set for hearing this Wednesday.

 Posted on March 16,2015 in Uncategorized

As most defense attorneys in Texas know, the State’sOnline Solicitation of Minor statute, Texas Penal Code Section 33.021, has run into trouble. The Court of Criminal Appeals ruled part “b” of the statute unconstitutional in 2013 in the unanimous decision styled Ex parte Lo. The Court reasoned that the statute was overbroad and unconstitutionally vague, and that the speech it criminalized included too many types of speech protected the First Amendment of the Constitution.

Attacks of other parts of Section 33.021 have followed, most centering on either the problematic definition of “minor” (according to the statutory definition, a “minor” can be someone who represents themselves as younger than 17, regardless of whether the defendant actually believed this person to be the represented age) and on part d of the statute, which, strangely, prohibits a “fantasy” defense (so that a defendantcould engage in sexual exchanges online that the person fully intended as merely age role-play, for example, with another person whom the defendant did not believe to be younger than 17, and still be guilty of a felony).

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Insanity defense in Chris Kyle murder trial is about more than a medical diagnosis

 Posted on February 17,2015 in Uncategorized

As the Chris Kyle murder trial continues this week in Stephenville, Texas, it seems appropriateto open this criminal appellate blog with a brief discussion of the Texas affirmative defense of Insanity. The prosecution has already played the videotape judicial confession of Iraqi War vet Eddie Ray Routh, and it is now up to both sides’ medical experts to present evidence as to whether Mr. Routh was insane at the time he shot and killed the famous Navy SEAL Chris Kyle and his friend Chad Littlefield.

In Texas, a criminal defendant may attempt to affirmatively prove that, at the time he committed the charged conduct, he did not know that the conduct was wrong because of a “severe mental disease or defect.” The Texas Legislature has refused to define either of these terms because it’s ultimately a juror’s job, not a doctor’s, to give these terms their “common usage” meaning and to determine if the defendant is legally insane.

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