The Miami Herald reports on a mistrial which came about as a result of attorney misconduct.  As a Texas criminal appeals lawyer and Texas habeas corpus lawyer, I am generally on the lookout for instances of prosecutorial misconduct.  Sometimes the misconduct can come from the defendant’s own lawyer.

The Back Story

The defendant’s family brought him a bag of fresh clothes to wear during his murder trial.  When corrections officers lifted up the pieces for a routine inspection, defense counsel snapped a photo of her client’s leopard-print briefs with her cellphone.  While on a break from trial, defense counsel posted the photo on her personal Facebook page with a caption suggesting the client’s family believed the underwear was proper attire for trial.  It was also discovered she had earlier posted a message on her Facebook page calling into question her client’s claim of innocence.  The judge soon learned of the posts and declared a mistrial.

Social Media and Fair Trials

Problems with social media conflicting with the Sixth Amendment right to a fair trial usually involve juror misconduct.  Judges across the country now routinely warn jurors about using the Internet, Facebook and Twitter during trials.

Criminal appeals have been successful in a number of cases due to misconduct involving the use of social medial by jurors.  In 2011, the Arkansas Supreme Court threw out a man’s murder conviction and death sentence because one juror repeatedly tweeted during the trial.  In 2010, an appeals court threw out a manslaughter conviction of a Palm Beach County man after a juror used an iPhone to look up the definition of “prudent.”  In 2007, a criminal appeals court in West Virginia reversed a conviction for sexual abuse of two teenage girls because members of the jury had looked up the MySpace profile of one of the alleged victims and shared its contents with other jurors.

Lessons Learned

The leopard-print brief posting public defender was rightfully fired from her job and her former boss said: “When a lawyer broadcasts disparaging and humiliating words and pictures, it undermines the basic client relationship and it gives the appearance that he is not receiving a fair trial.”  A law professor noted that “In today’s digital age, attorneys must recognize that their social media posts, even if meant to be private, can be damaging to their career.”  Clearly, such misguided antics can also be damaging to the client and provide fertile grounds for relief in Texas criminal appeals or Texas habeas corpus proceedings.

The Brownsville Herald reports the attorney for a Brownsville, Texas, man charged with sexual assault of a child has filed a motion seeking removal of the presiding judge in the case because she has a bias against the lawyer.  Aroldo Cadriel is accused of aggravated sexual assault of a child and indecency with a child.

Not the Judge for Me

A person charged with a crime is not allowed to pick the judge assigned to his or her case.   However, sometimes a particular judge should not preside over a particular case.  If a judge will not voluntarily step aside, the defendant may seek the judge’s removal or recusal for a variety of reasons.  Judges should recuse themselves from a case if the judge’s impartiality might reasonable be questioned.  Likewise, a judge should not sit in a case if the judge has a personal bias or prejudice concerning the subject matter or a party.

Shout Out

A recusal motion filed by Cadriel’s attorney, Nat Perez, accuses District Judge Elia Lopez of bias against him as well as against defendants who are accused of criminal offenses against children. The motion by Perez cites three cases where he says Lopez removed him from acting as the appointed defense attorney for indigent clients facing criminal charges.

The motion states that in spring 2011, Lopez directed Perez, in person when she saw him at the county courthouse, to speak with her court coordinator. When Perez spoke with the coordinator, he was told Lopez wanted him to buy cookies from the troop that both of their daughters belong to.  Perez declined to purchase the cookies as directed.  Perez further claims: “This conduct is an open, blatant and obvious indication of Judge Lopez’s animosity, dislike and disdain for counsel and her desire to not have counsel practice in her court before her, possibly exacerbated by counsel’s refusal to purchase a case of Girl Scout cookies from her daughter’s troop.”

Do-Si-Do

Another judge will rule on the motion to recuse Judge Lopez from the Cadriel trial.  If Judge Lopez is allowed to preside over the trial and Cadriel convicted, he can complain of her presence in a criminal appeal or habeas corpus application to a Texas criminal appeals court.

I once worked on a case in which the prosecutor approached a defendant during trial and said: “You’re drowning and your lifeguard doesn’t know how to swim.”  That incident resulted in a reversal of the conviction on criminal appeal.  Had the criminal appeal not be successful, it would have been a strong ground on habeas corpus review in a Texas criminal appeals court.

The Times-Picayune is reporting that two days into a rape trial, the defense attorney stood and confessed to the judge that he’d done an inadequate job representing his client accused of raping two young girls. The lawyer refused to proceed, despite the judge’s threats to hold him in contempt of court.  Essentially, the lifeguard stood before the drowning victim and professed his inability to swim.

How Did I Get Here?

The defendant had hired an attorney from out of state, who in turn hired a New Orleans’s lawyer as his local co-counsel. The out-of-state lawyer did not show up for the trial and local counsel was stuck with trying a case for which he was not prepared or competent to try.

By the second day of trial, counsel filed a motion stating he was unqualified to provide adequate counsel.  The defendant’s family hired a consultant to watch over counsel’s shoulder during the trial.  The consultant found the lawyer to be incompetent and the lawyer agreed.

Too Late to Quit

The judge responded it would set a “horrible precedent” to call off the trial with no obvious signs that the lawyer was incompetent.  But counsel did not concede. “I cannot further participate,” he insisted.  “We’re not going to play these games,” the judge said incredulously. “That’s all I see this as — game playing.”

The lawyer apologized but held his ground. “Is there any reason I shouldn’t hold you in contempt?” the judge asked.  “No, your honor,” counsel replied. He then was led out of the courtroom in shackles by the bailiffs.  The judge apologized to the jurors and released them.  The trial has been rescheduled to July 30.  The duration of counsel’s incarceration is unclear.

Lessons Learned

The Sixth Amendment right to counsel includes the right to effective counsel.  Know your lawyer.  Be sure your lawyer has the abilities to undertake a vigorous defense either at trial, on criminal appeal, or habeas corpus review in a Texas appellate court.  You don’t want someone afraid of the water to be your lifeguard.

As a Texas criminal appeals lawyer and habeas corpus lawyer, I always enjoy stories which fall into the “truth can be stranger than fiction” category.  A recent story from the Associated Press is a good example.

“Let’s take a 10 minute recess.”

A Knoxville, Tennessee, judge was so addicted to prescription drugs during his final two years on the bench, that he was having sex with defendants and buying pills from defendants during courtroom breaks.  Understandably, his conduct has called into question many of the cases he presided over, including one of Knoxville’s most notorious murders.

Many people say they didn’t realize Criminal Court Judge Richard Baumgartner had a problem until he stepped down from the bench and pleaded guilty to a single count of official misconduct. It would be another eight months before the seriousness of the judge’s drug problem was revealed, casting uncertainty about whether Baumgartner was sober enough to be sitting on the bench.

The Fallout

Another judge has already tossed out the convictions from the high-profile murder case and ordered new trials. Other defendants are hoping for a similar outcome, and bids for new trials from the many people convicted in Baumgartner’s court could overwhelm the criminal justice system in Knox County, Tennessee’s third-largest county with more than 400,000 residents. Baumgartner was one of three judges in the county who heard felony cases.

“We’re getting pleadings almost daily now from people in the penitentiary filing habeas corpus saying ‘Let me out too.’ It’s raining over here,” said Knox County District Attorney General Randy Nichols.

Fair, Impartial, Straight, and Sober

The Fourteenth Amendment provides that the State may not deprive any person of life, liberty, or property, without due process of law.  U.S. Const. amend. XIV.  A neutral and detached judge is one of the minimum requirements of due process in criminal proceedings.  A fair trial in a fair tribunal is a basic requirement of due process.  Those criminal appeals, habeas corpus petitions, and writs will continue to flood the courthouse in Knoxville until the full extent of the criminal judge’s misconduct is known.

For the second time in two years, the Supreme Court considered the issue of prosecutorial misconduct involving the New Orleans District Attorney’s Office.  This week, in Smith v. Cain, the Court overturned Juan Smith’s five murder convictions because the prosecutor cheated before trial.

The facts

Smith was charged with killing five people during an armed robbery. At trial a single witness, Boatner, linked Smith to the crime. Boatner testified that he was socializing at a friend’s house when Smith and two other gunmen entered the home, demanded money and drugs, and shortly there­after began shooting, resulting in the death of five of Boatner’s friends. In court Boatner identified Smith as the first gunman to come through the door. He claimed that he had been face to face with Smith during the robbery. No other witnesses and no physi­cal evidence implicated Smith in the crime.

The non-disclosed evidence

Smith was convicted at trial and lost his criminal appeal.  His lawyer sought post-conviction habeas corpus relief in the state courts. As part of his effort, Smith obtained files from the police investigation of his case, including those of the lead investigator.  Notes from the detective contained statements by Boatner that conflicted with his tes­timony identifying Smith as a perpetrator. The notes from the night of the murder stated that Boatner could not supply a description of the perpetrators.  Five days after the crime, Boatner said he could not ID anyone because he couldn’t see faces and would not know them if he saw them again.   The information in the detective’s file was not supplied to Smith’s attorney before trial.

The duty violated

Under Brady v. Maryland, 373 U. S. 83 (1963), a prosecutor violates a defendant’s right to due process if he withholds evidence that is favorable to the defense and material to the defendant’s guilt or punish­ment.  Evidence is material within the meaning of Brady when there is a reasonable probability that, had the evidence been dis­closed, the result of the proceeding would have been dif­ferent. Cone v. Bell, 556 U. S. 449, 469–470 (2009). A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.  Kyles v. Whitley, 514 U. S. 419, 434 (1995).

The right result

The Supreme Court had little difficulty in finding the non-disclosed notes were favorable to Smith.  The Court also determined the notes were material because Boatner’s testimony was the only evidence linking Smith to the killings.  As a Texas criminal appeals lawyer, I appreciate seeing the correct result reached in this case and will be watching to see if the DA re-prosecutes Smith now that the whole story is known.

Last year the Texas Board of Legal Specialization recognized a new board specialization in criminal appellate law.  The Board recently notified me that I am in the first group of Texas attorneys to be board certified in criminal appellate law.  The practice of criminal appellate law includes: appeals in state and federal courts; original filings in appellate courts for extraordinary relief; and applications for habeas corpus relief in state and federal courts.

Courts of Practice

The courts in which criminal appellate law are practiced include: the United States Supreme Court; United States Circuit Courts of Appeals; Texas Supreme Court exercising jurisdiction over adjudications in a juvenile case; Texas Court of Criminal Appeals; Texas Courts of Appeals; Texas District Courts; and the United States District Courts.

Substantial Involvement

The applicant must show substantial involvement and special competence in criminal appellate law practice in order to become certified.  The applicant must have devoted a minimum of 25% of his or her time practicing criminal appellate law during each year of the three years immediately preceding application.

Required Tasks

In order to become certified, an applicant is required to have been lead counsel in at least 50 criminal appellate law matters during his entire practice with at least 25 of the cases completed in the three years prior to certification.  An applicant must have presented oral argument in at least five cases at a Court of Appeals, the Texas Court of Criminal Appeals, a United States Circuit Court of Appeals, or the United States Supreme Court.

References

The applicant must submit references to attest to his or her competence in criminal appellate law. These persons must be substantially involved in criminal appellate law, and be familiar with applicant’s criminal appellate law practice.  The references include four Texas attorneys who are substantially involved in criminal appellate law and one judge of any court of record in Texas whom the applicant has appeared before as an advocate in a criminal appellate law matter.

A Second Certification

This certification is my second from TBLS.  I was certified in criminal law in 1989 and have been recertified every five years thereafter.  Please let me know if I may serve your criminal appellate law needs.

The San Antonio Express-News reports a jury hearing a murder case against a San Antonio mother accused of killing her 2-year-old daughter sent three notes to the judge yesterday.  All of the notes indicated that the jury was hung, 11-1.  It wasn’t clear from the first two notes whether the majority wanted to acquit, convict of murder, or convict of the lesser included offense of injury to a child.

A Show-Stopper

However, the third note from the jury was a show-stopper sufficient to derail the trial.  The note informed the trial judge that one of the jurors was threatening to kill himself if he had to vote to convict in the case.  The judge promptly declared a mistrial and the mother is expected to be retried early next year.  Defense counsel was quoted as saying “Never in all my years of practice have I had a note like that . . . This juror decided what his vote was, and he was not going to bend.”

The Unanimity Requirement

Under the Texas Constitution and Texas Code of Criminal Procedure, a jury’s verdict must be unanimous in all felony cases.  Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006); TEX. CONST. art. V, § 13; TEX. CRIM. PROC. CODE art. 36.29(a).  A jury must unanimously convict a defendant of a single, specific offense, but it need not unanimously agree as to any particular theory of how the defendant committed that offense.  See Stuhler v. State, 218 S.W.3d 706, 716-719 (Tex. Crim. App. 2007); Jefferson, 189 S.W.3d at 312; Sanchez v. State, 182 S.W.3d 34, 63 (Tex. App.-San Antonio 2005), aff’d, 209 S.W.3d 117 (Tex. Crim. App. 2006).

It’s Over

Sometimes the right result is reached at the trial court level and the services of a Texas criminal appeals lawyer are not needed.  Had the judge required the jurors to continue to deliberate even in the face of probable bodily injury to one of the jurors, and the mother been convicted, strong grounds would be available for any ensuing criminal appeals or Texas habeas corpus action.

Thanks to a tip from burglars, a central California man has been arrested for possession of child pornography.  Two burglars broke into Kraig Stockard’s barn in Merced County and stole 50 CDs they thought were blank.  After placing the CDs in a computer the burglars discovered some of them contained images of child pornography.

Even though the CDs had been obtained in a burglary, the pair reported Stockard to the police.  Based on that information, a search warrant was obtained for Stockard’s home.  Upon execution, the authorities found thousands of images of child pornography stored at the home.  The evidence tended to show Stockard had been downloading the pornography from the internet for seven years.

Private Search

The Fourth Amendment protection against an unreasonable search and seizure does not extend to the actions of private individuals.  Thus, under the federal constitution, there would be no prohibition on the sheriff relying on the burglar’s information to obtain the search warrant for Stockard’s home.  An argument before a criminal appeals court based on the Fourth Amendment would be rejected.

The rule is different in Texas.  When a defendant challenges the admissibility of evidence under TEX. CRIM. PROC. CODE art. 38.23(a) on the ground it was wrongfully obtained by a private person in a private capacity, the defendant must establish that the private person obtained that evidence in violation of law. See Mayfield v. State, 124 S.W.3d 377, 378 (Tex. App. – Dallas 2003, pet. ref’d); Carroll v. State, 911 S.W.2d 210, 220 (Tex.App.-Austin 1995, no pet.).  Unquestionably, the burglars obtained the CDs in violation of the law and were the prosecution in Texas; the evidence would be suppressed in response to arguments by a Texas criminal appeals lawyer.

What’s next?

The two burglars who reported Stockard have not been arrested and burglary charges against them are currently under review by the prosecutor.  Stockard was released from custody upon posting bail.  He awaits trial.  In a final twist, it turns out Stockard reported the initial burglary of the barn to the authorities shortly after it occurred.  If he told the authorities what was taken, his search and seizure claim would be dead on arrival even before a Texas criminal appeals court.

As a criminal appeals and habeas corpus lawyer, I am always interested in unusual courtroom occurrences.  One such situation recently occurred in Fredericksburg, Virginia.  In an extremely rare judicial move, a Virginia Circuit judge removed both the prosecutor and defense attorney from a child abuse case in which the accused is a former sheriff’s deputy.  Following a contentious pre-trial hearing, Judge Joseph J. Ellis told both the prosecutor and the defense lawyer they would be replaced for the upcoming trial.

Ellis said he had to remove them both because he felt their ability to remain professional was overwhelmed by their personal animosity toward each other.  “I’ve been practicing law for 31 years and I’ve been on the bench for more than 12 years, and I truly can’t recall a case that disturbs me more than this one; not because of the charges, but because of the conduct of the two of you,” Ellis said.  “I am going to replace both of you.  It’s the only way I’m capable of ensuring [the defendant] will be having the fair trial he is entitled to and guarantee the rights of the victim.”

The Texas Rule

Had the trial been in Texas, it is clear the judge could not remove the prosecutor and prevent him from trying the case.  Neither an elected prosecuting attorney, nor his assistants, can be disqualified or prevented by a trial court from carrying out their duties to prosecute criminal cases.  State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 932 (Tex. Crim. App. 1994); State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 5 (Tex. Crim. App. 1990).

The ability of a judge to remove defense counsel is extremely limited.  The Sixth Amendment guarantees a criminal defendant the right to be represented by the retained counsel he prefers.  Wheat v. U.S., 486 U.S. 153, 158-60 (1988).  An accused is, in fact, entitled to counsel of his own selection, and as many as he may see proper to employ, to defend him.  Jackson v. State, 55 Tex.Crim. 79, 115 S.W. 262, 264 (1908).

Zealous Advocate

Our system of justice is an adversarial process.  All lawyers have a duty to zealously represent their client.  That duty applies whether the lawyer is a prosecutor, defense trial lawyer, criminal appeals lawyer, or habeas corpus lawyer. The right to counsel of one’s own choosing is not absolute.  It can be overridden by important consideration relating to the integrity of the judicial process and the fair and orderly administration of justice.  A talented and experienced lawyer will know how far and hard to push without being ejected from the game.

The Chicago Tribune reports a mistrial was declared last week in a federal sex-trafficking case because a prosecution witness told authorities that the defense attorney was once one of her massage clients. The witness, a masseuse, told prosecutors that she believed she knew the defense attorney. As it turns out, the defense lawyer had been her client at a Chicago massage parlor in 2009. He had purchased gifts for her and corresponded with her by email.

Defense counsel insisted he had done nothing inappropriate during his massage sessions and could continue to effectively represent the owner of the massage parlor. Counsel did not recognize her name on the list of prosecution witnesses because he only knew her by her professional masseuse name. Counsel did admit he was a little too friendly with the masseuse and had neglected to tell his wife about her.

The client knows best

Prosecutors were in favor of continuing the trial with current defense counsel. They were willing to strike the previous testimony of the masseuse. The trial judge was also prepared to continue the trial and complemented counsel on his rigorous defense in the case.

The client had no interest in counsel continuing to represent him. He said he could not trust counsel due to his relationship with a government witness. The judge, probably worried about the outcome of any criminal appeals, reluctantly agreed with the client and granted a mistrial.

Smarter than you think

A Texas criminal appeals lawyer or Texas habeas corpus lawyer would tell you this is a classic conflict of interest. The lawyer had no business remaining on the case and the judge did the right thing in granting a mistrial. The relationship between counsel and the parlor owner could not be repaired.

Even the revealing masseuse knew there was something wrong with her former client representing her former boss in relation to alleged unlawful activities she engaged in at the behest of her boss. That sense of impropriety may have something to do with the fact the masseuse has a law degree from Ukraine.