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JOURNAL OF THE TEXASCRIMINALDEFENSE LAWYERS ASSOCIATIONVOICE for the Defense (ISSN 0364-2232)is oublished monthlv by the Texas CriminaiDefense ~awyeri ~ssociatlon, 600 W.13th,Austin,Texas78701, (512)47&2514.Annual subscript~on rate for members ofthe association is $10, which is included indues. Nonmember subscription-$36 peryear. Second class postage paid at Austin,Texas. POSTMASTER: Send addresschanges to VOICE for fhe Defeme, 600W. 13th, Austin, Texas 78701.All articles and other editornl contnbutionsshould be addressed to the editor,M.P. "Rusty" Duncan 111, 101 N. Elm,Denton, Texas 76201. Advertislnginquiriesand contracts send to Eugene Hayes,Artforms Amcy, P.O. Box 4574, Austin,Texas 78765 (512) 451-3588.EDITORM.P "Rusty" Duncan III"SIGNLFICANT DECISIONS REPORT"EditorKerry P FitzGeraldAssociate EditorsRichard A. AndersonDavid L BotsfardGtherine Greene BurnettJulie HeddOFFICERSPresidentClifton L. ''Scrappy" HolmesLongviewPresident-ElectLouis Dugas, 11.om*First Vice PresidentKnox JonesMcAUenSecond Vice ResidentCharles D. ButtsSan AntonioSecretary-TreasurerEdward A. MallettHoustonAssistant Secretsty-TreasurerJ. A. "Jim" BoboOdessaTCDLA STAFFMembership CoordinatorNance NelleMeetings coOrd'ito1Laurie RammMembaship CaerkElaine Pete~sun@ 1984 TEXAS CRIMINAL I>Wi:I\'SI~LAWYERS ASSOCIATIONON THC COVCRCRIMNAL DEFENSE LAWYERS: When will the PublicTrust Thein?Pich(red on the cover are Ron Goranson, left,Cliff "Scmppy" Holmes and Bill Bratton outside the TexasDepariment of Cormctions' Ellis Unit, where death ?owinmates are housed.ARTICLCS5 Death Row Lawyersby Bill Minutaglio11 Out-of-Time Appeals3 Editor's Corner4 President's ReportSDR 1-12 Significant Decisions Report16 Hearsay17 Forensic Science News18 LettersNGWS14 Beepersby Walter Boyd15 Changes in the Texas Controlled Substances SchedulesTEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATIONPAST PRESIDENTSThomas G. Sharpe, Jr. (1983-84)Clifford W. Brown (1982-83)CharleaM. MeDonald (1981-821Robert D. Jones (198081)Vincent W. Perini (1979-80)George F. Luquette (1978-79)Emmett Calvin (1977-78)Weldon Holcomb (1976-77)C. David Evans (1975-76)George E. Gdketsan (1974-75)Phil Burleson (1973-74)C. Anthony Frdoux (1972-73)Frank Maloney (1971-72)DIRECTORSRichard Alan AndersonDaasCecil W. BainSari AntonioDavid R. BiresHoustonMike Brodrn' LubbockAbUeneGene W. CaldwellTylerJ. A. "Tony" +umlBsc01pus chnstiAllen &leySan AntonmJmsh A Connars 111Mr .. Allen -Gene de Bullett. JrFort WorthBuddy M. DickenShermanBob EstradaWichita FallsTim EvansFort WorthF. R. "Buok" Files, Jr.TylerCarolyn Clause GarciaHoustonMichael P. GibsonDallasGerald H. GoldsteinSan AntonioRonald L. GuransonDallasJeremiah HandySan AntonioMerrilee L. HarmonwarnR~&&TE. HemisonDallasJan E. HemphdlDallasJeffrey HinkleyMidlandFrank JacksonDallasJamex H KreimeyerBeWnArch C McColl I11DallasJohn J. C. O'SheaLubbockla& J RawitscherHoustonLarry SauerHoustonGwrge ScharmenSan AntonioRichard ThorntonGalvestanFred L. Tinsley, Jr.DallasRobert Gregow Turnerg oust on- -Sheldon WeisfeldBrownsvilleDam P. WhitworthAustinJack B. ZimmermannHoustonASSOUATE DIRECTORSWilliam A. B~atton I11DallasCharles L. CapertonDallasChristopher M. GunterAustinM HabernHoustonGrant U. Hardeway, Sr.HoustonHarry R. HeardLongviewJeff KeameyFmt WorthCkuck LanehartLubbockFred RodriguezSan AntonioJack V. StricklandFort WorthGus E. WilcoxUniversal CityBill W~schkaemperLubbock

GDITOR'S CORNGRM.P. "Rusty" Duncan llIWhen one surveys the status of ourcriminal law statutes it often seems thatin our representative form of government,at both the state and federal level, there isno more viable and politically beneficialsource of positive controversy than criminallaw. It also appears that no legislatoris above ylelding to the almost bewitchmgattraction criminal law matters grant topoliticians. Consequently, everyone whois anyone is necessarily compelled to unveilfor the public's consideration an upto-date"anti-crime package."Such is the situation with the Speakerof the House, Glb Lewis (D-Ft. Worth).According to media reports, SpeakefLewis,naturally at acarefully orchestratednews conference, dramatmlly announcedthat he will propose several substantivechanges to our criminal codes. He willoffer an amendment to the Penal Codethat will make multiple murders a capitaloffense. The reason for this proposal isthe tragedy at a night club in Dallaswhere a number of people were killed forno apparent reason.But, another tragedy is the populartrend of altering the status of the criminallaws solely in response to a single, bizzarecriminal act. If society wants a deathpenalty, which any capital murder juryvoir dire will confirm, then multiple murderswould seam to qualify as an appropriatemember of this rather select groupof offenses. Nonetheless, it is truly unfortunatethat legislation of this natureis born from a single incident rather thanthe creativity of our representatives.Speaking of tragedies, legislation tounsunset the wiretap law will be offeredby Speaker Lewis. In his comments to thepress Speaker Lewis said that since itsinception there have been fifteen investigationsresulting in forty-two wuetaps.From these large numbers arose 122arrests, and fifty-one convictions. To putthis in proper perspective, one must recallthat with the passage of the wiretapbill the legislature allocated to the Departmentof Public Safety over $600,000 tobegin its bugging efforts.Simple mathematics reveals that thishas not beenaparticularly efficient meansof utilizing the funds available for law enforcement.But, irrespective of its apparentlack of appreciable success, the wiretapbill will probably be renewed withoutan expiration period.In addition to these issues that olddemon "fundamental error" found itsway into Speaker Lewis' plans. Accordingto Lewis something has to be doneabout this unfortunate state of eventsthat allow criminals to go free just becausesomeone made a silly little mistake. Really,the solution is quite simple, but historicallynot particularly likely to occur:have prosecutors read the indictmentsthey are charged by law with preparing,and have the judges impartially read thejury charge before it is given to the jury.November 1984/VOICEfor the Defense 3

A recent Dallas Life Magwfile articleby Bm MinUtaglio attempts to exploreand expldn the motivaticms and psychologyof the "deatb row lawyer." Iil spiteof the photography (your's truly lookedmore lii a death raw candidate than adeath row lawyer), the article is thoughtinvoking,both for lawyea and the @nerdpublic. Though limited in approach,the article does address some of the majoraroblems of dwth wenaltv lam~inz. It- -viev. If that is to be accomplished, somethingliiust be done, probably IegisIatively,to pravide the reseurces required. Thepublic and the organized bar cannot son-~ uto e place the entire burden of deathrowrepres&tationon a fewlawy@rs whosecmfmitment wsts them dearly. If thepublic insists on the death penalty, andthose who are sentend accordingly @reafforded that complets review, then thelegislature should address the issue ofportrays the death ;ow {awyer as corn- how the tWo wquirements are to be me2.mitted, over-stressed and Wterpaid. It I have proposed, privately, that tha: Staterightly describes lawyers involved in should provide funding for legal counseld m penalty works as a clw-knit group, in death penalty cases, begianing Withbut knits the group a little roo tight. affirmance in the Court of Appeals-. ThereThere ate almost 180 inmates mw on would be title difficulty in designing adeath row in Texas. Capital c~ses are being symm fof appointment of counsel, rectdeaweek after week across fhis State. od keeping rsquirements, compensation'While the aaicle names 8 or 10 lawyers notes, and reporting responsibilities. Perw~mtlyactive in death penalty cases, hapa @is kind of appointment and comweknow there are many, many more pensation of counsel could be addressedthroughout this State who carry the same in the Effective Assistance of Counselburdens. Those other lawyers deserve Bill, which. win surely be introduced inequal recognition, and the appfeciafion of the upcuming sessian of the legidatute.the bar, genera!&, for accepting ;l respon- It appears reasonable to me that ifsibility which, in all fairness, below to avenues of review of a death penalty arethe entire bar.available to those whose resources payIt interested me that some of the law- for such, the State is obligd to provideyen interview~d had no moral convio the m e for indigent death raw inmates.tions against the death penalty, and some, At the present time, as many of yous%mingly, even favored capital punish- know, all publie resomces vmish at affirment.I suppose my own strong convic- mance by the Court ofctiminal Appeals.ticms in that area of thme had closed From that point forward, through atatemy eyes to the fact that criminal defense and federal post-conviction remedies,lawyers are a diverse group of individuals, counsel is pretty much on bis own. Someholdfmg differing view* and opinlons in expenses meg be covered by some mtianareas of human endeavor. I do hope, death penalfy group, hut more ohn thanhowever, that criminal defense lawyers not, the lawyer simply absmbs them as anare of a single mind when it comes to the aaded cost of doing pm bow business.proposition that every death row inmate Adding to the expenses(traue1, telephone,is entitled to a complete and detailed secretwial, printin&, duplication, etc.) thereview of his case, by every legitimate countless hours donated by couml, thetribunal and to co~nsel who will compe- ~ c i impact ~ of l death row lawyering istentiy and energetically pursue that re- evident. Adore than anything else, it is theprospect the future holds (for sttes$ulhours and economie burdens) that causeslawyers to shy away from capital Eases,a6 tritio. Something sbouId be done torectify thi~ situation, and the time is ripefor action.Without a doubt thissession of the legislaturewill addregs ?smes involving themanagement and direction of the TorasDepartment of Corrections, the role ofthe Board of Pardons and Patoles, senteaciagpractices and judicial adminiattatian.The topic of effective counsel for deathcow inmates and compensation of suchcounsel is current and important.The idea that Tong, dragged-out appealsfor death low inmates are just designed tomake lawyers ri&" as voiced in areeentdwih AmeMm-Statessmart "letter to theeditor" should be di~pelled once and forall. But lawyers who work to provide theteprwentation for the inmates should befairly compensated. Yon can bet yourbottom dollar that ths doctor who performsthe appendectomy on a death rowinmate is f&y and promptly compensated,as is the drmtbt who pulls his tooth.Lawyers desexve no less.A well-placed suggestion to your senatorox legislator may move this idea tofruition.Until December,S@WPY

The fight can stretch overyears, and there's a very good chance they 'I1 lose.And if they do, they lose not only the case but the client.Who are the people who take such chances?DeathRowLawyersby Bill Minutaglio *0UTSIDE Richard Anderson's OakLawn office, it's a clear, crisp falldav. Inside, surrounded bv booksand papers, Anderson keeps one eye ona TV set flickering with images of a lateseason baseball game. As the Mets makea futile stab at the Cubs, there is a senseof immunity against anything more complexthan good conversation and sports.But Anderson is talking in soft tonesabout gruesome murders. About, in hispolite wording, the most unsavory peoplem the world. About how he-a bnght, bespectacled3bvear-old Dallas attornevandhis peers have found themselves &-mersed in those murders and faced withmore trauma and challenges than theyever bargained for."Let me put it this way," says Anderson."I don't want to have to think fiveor six years down the road that someonedies because of something I did. That'slust a heavy psychological burden. I knowfrom people who maybe have never recoveredfrom it."Anderson is a member of a specialTexas fraternity-a loose network ofintense, driven lawyers who represent*Bill Minutaglio is a staff wrlter for theDallas Life Magazine. Origi'naily publishedin Dallas Life Magazine. Re~rinted withpemzssion of ~aiias Life Magazine andDallas Morning News.Richard Anderson in front of his Dallas office: "Criminal defense lowyers rarelyget the c k e to play God with their clients. It's pretty heavy.'"November 19841 VOICE for the Defense 5

people destined for death row or alreadythere. These are lawyers for whom winningis everything. If they lose a trial oran appeal, not only do they lose face inthe close-knlt, competitive world of criminaldefense, they may lose a client. Andthere's always the danger of earning yearsof notoriety as an attorney whose clientwas executed.Couple that with heated criticism fromproponents of the death penalty whothink defense lawyers are deliberately obstructingspeedy justice. Throw in thefact that most of these lawyers have notbeen hired but are court-appointed orinto his face. Police said a man namedRicky Eugene Morrow walked into thebank, pomted a gun at Mark Frazier andfired.The murder sent shock waves througha city proud of pomting to people whomigrate here and become overnight successes.The 26-year-old Frazier had cometo Dallas from Boston and landed his jobwithin three days of arriving. He was outgoing,popular and described by hismother as a "go-getter."Three years before that incident, therehad been another, equally grim billing inDallas, another assault on the Dallasing ordeal for the defendants' lawyers.Anderson, who represented Nolan andhelped Morrow's attorneys, Bill Brattonand Ron Goranson, recalls some of themost troubling events in his life: unannouncedvisits to Frazier's relatives (inMassachusetts) and Vickers'(i Lubbock).Each time, he went to inform the familyexactly what the death penalty meant.In deciding what penalty to seek, attorneyssay the Dallas County DistrictAttorney's office may weigh the feelin@of a victim's famly. Knowing that,Anderson considers it crucial-albeit painful-tovisit those families. He too wantsvolunteew-and that death row cases, if success story.to gauge their feelings and make thema lawyer gives his full attention, will Beverly Sue Vickers, 37, one of the aware of his duties m a case. By touchingturn into losing financial affairs. Add the most proficient of Mary Kay Ash's sales- base with them early on, he hopes tointense stress that emerges from philo- women, had lost her pink CadiUac at the ward off a death sentence later.sophtcal differences between the lawyer Town East Mall in Mesquite. Police said Anderson's visits were gut-wrenchingand members of his family, his church, two men offered to help the personable experiences. "We got pretty much whathis firm, his neighborhood.woman fmd her car. Instead, they took you would probably say if you had some-The end result is that some attorneys her to Lake Ray Hubbard. She was raped. one close to you killed and their (the desimplyshatter under the pressure: Stories The men attempted to strangle her by fendant's) attorney showed up," saysabound about nervous breakdowns, severe hand. When that failed, they killed her by Anderson, who also aided lawyers repreweightlosses and drinkmg bouts. A Hous- stringing her between two trees. Police senting Charlie Brooks, executed for murtonattorney who worked on the cele- arrested two men-James Edward Nolan der two years ago, as well as those reprebratedcase of Ronald Clark "Candy Man" and another man who later committed senting "Candy Man" O'Bryan. "I'm notO'Bryan, executed this year for giving his suicide in jail.exactly a real aggressive individual, exceptchild cyanide-laced candy, has frightful, At first glance, there was little to link when I have to be. I'm fmly low-key. Butrecurring nightmares. That same attorney, the two murders-except for the instinc- they (prosecutors) never offered anythingStanley Schneider, says a friend who rep- tive and collective revulsion that spread but death as an alternative. We had toresented James David Antry-executed through Dallas in each case. The cases make the visit."for committing murder at a Port Arthur were prominently covered in the media. He had to do something else-he hadconvenience store-had to be hospitalized Several interviews with horrified relatives to weigh how much he wanted to beafter Autry's death.and co-workers were published and broad- involved in both cases. He didn't have toFew death row lawyers talk freelyabout the stress, but they are acutelyaware they are playing for keeps. Threepeople have been executed in Texas sincecast.The community loathing spread toDistrict Attorney Henry Wade's officeanoffice whose prosecutors have a namakethose trips. And, in fact, he andthe other attorneys could have tumeddown their court appointments to thecases. But Anderson took the appointthedeathpenalty was reintroduced almost tional reputation for being extraordinarily ment-with the realization that the triala decade ago; of the 1,400 prisoners on selective when it comes to seeking the could mushroom into a string of lengthydeath row in the US., 175 are scheduled death penalty. "Our policy differs from appeals.to die by lethal injection in Texas. Only other district attorney offices in other "It took nine months before theFlorida, with close to 200, has a greater parts of the state," says Norm Kinne, income curve in my law practice was backnumber on death row.Dallas' chief felony prosecutor. "We to where it had been before the (Nolan)And basically, no lawyers want to rep- don't actively try a case for death unless case," he says. Other death penalty lawresentthe "next loser,v or be put in a that's what we expect to get. A life sen- yers say the same thing: Financially, it'sposition very few people ever encounter: tence for us in a capital murder case is a not only a matter of devoting months to'Criminal defense lawyers rarely get Idss."one case; it's also a matter of spendingthe chance to play God with theirclients," Wade's prosecutors didn't want a loss thousands of dollars of one's own moneysays Anderson. "It's pretty heavy." in the Frazier and Vickers murders; they for travel, investigation, secretarial worksoughtto convince juries that Morrow and visits to unfriendly relatives.0and Nolan were no longer fit to live. Anderson hasn't completed his costN A JANUARY DAY three years That decision thrust each case firmly tally, but one ofhispeers, Cliff "Scrappy"ago, a young loan officer at First hack into the spotlight. But lost in the Holmes, a veteran death row attorneyTexas Savings on Berkshire Lane miles of publicity surrounding the cases from Longview, says, "The minute youwas killed by a bullet fired at close range was the fact that they became a harrow- are appointed @y a judge to represent a6 VOICEfor the DefensefNovember 1984

and Goranson are handling hi appeals.They seem inclined to stick with the caseas long as possible, even though theaccused in a capitalmurder case is entitledto court-appointed representation onlythrough the trial and the first appeal.Anderson still meets and correspondswith the two other attorneys. In fact,lawyers around the state who handle trialand appellate work in capital punishmentcases frequently share information.Now, though, Anderson has tumedmore attention to a new client-anothercourt-appointed case. He represents deathrow inmate Johnny Dean Pyles, convictedof killimg a Dallas County sheriffs officerin 1982. And, Anderson is kffipmg an eyeon other death row cases as one of themembers of the Death Watch Committee,affdiated with the Texas Criminal DefenseLawyers Association. TAe committeemonitors death penalty litigation, offeringadvice on the lengthy and difficultlegal maneuverings in those cases.But more difficult to answer thanpoints of law is one question Andersonand the other death row lawyers constantlyaddress. It is an internal problem, oneof their own making-their personal feelingsabout "legal" death."My stand on capital punishment?"says Anderson slowly. "I honestly don'tknow where I fall. There are a couple ofpeople I've interviewed where I have honestlysaid I don't think those folks deserveto live. But my feelings are ones that Ireally prefer to keep private."0N A SEPTEMBER DAY INDenton, an impeccably dressedand utterlv confident attornevnamed Rusty ~uncin is listening to classicalmusic in his wood-paneled office. InRusty Duncan outside the Denton Comty Courthouse: Florida, a 46-year-old man named Earnest"We are viewedas Iefi-wing liberol, and that's not necessqrily true " Dohhert has just died in the electric chalrfor the murder of his 9-year-old daughter.Duncan is familiar with Dobhert's case;he also knows the difficulties of repredefendantfacing the death penalty), you' represents the only time since 1973 that sentlng a condemned man.can count on losing $30,000 to $40,000 the state has sought the death penalty in Most criminal defense attorneys arethat year."Dallas County and not gotten it. After a loners. They do not operate out of largeWhat then was Anderson's compensa- hung jury, Nolan received, mstead, three law firms. They are not able to rely ontion? He echoes the other death row law- consecutwe life sentences for the rape- the firm when they need extra manpoweryershe talks about ego gratfication and murder of Ms. Viokers. "In one sense, it or money to work on a case. here are athe knowledge that he gave a condemned was a victory," Anderson says.few exceptions in the Dallas area, andman a fair shot at different legal avenues. There has been no such victory for Duncan, a nationally known, high-rankingAnd he points out that the Nolan case Morrow. He is on death row, and Brattan player in the Texas death row legal frater-November 1984/VOICEfor the Defense T

nity, is one: He is a member of Philips,White, Davidge, Griffin, Shelton, Eames,Wood and Duncan. He admits "the otherpeople in my firm do silk-stocking work"while he concentrates on criminal cases.Duncan is a classic Texas mix of intellectand good ol' boy-isms. He smoothlyshifts from high-minded philosophy totalk about "the s-- hitting the fan." Andwhen he talks about the latter, he refersto one of the biggest burdens a death rowlawyer bears: unyielding and, at times,unbearable community pressure.'We get typecast," says Duncan, 39,who as of this writing is the attorney fordeath row inmate Joseph Jernigan, convictedof the murder of an elderly manduring a burglary. "We are viewed as leftwingliberal, and that's not necessarilytrue."That easy stereotype-that an attorneywho represents someone the statewants executed is a "crazed pinko," asDuncan says, or is a zealot trying "tospring" the criminal-is a crushing onusthat manifests itself in many ways."We @s firm) represent the banks, werepresent the savlngs and loans. It hascaused them (the other lawyers) someMeIBruder in his office with files on Randall Dale Adamsand Elmer Branch,two death row clients he has represented.difficulty, frankly, wlth me doing the for Duncan on that case During the origi- has gone into a fde and pulled out a thicktype of work I do," Duncan says. nal trial, workwasbeingdone in the firm's stack of papen detailing the hundreds ofMore immediate, personal affronts historical bulldig dlrectly across from hours he has sunk into death penaltycome from people incensed by hls repre- the downtown courthouse square in Den- cases-hours he will never he paid for.senting crimmals, by people who assume ton. Duncan recalls a conversation with a "That whole kind of thing is typical. It'she's a fervent opponent of the death pen- construction worker.a fact of life you have to live with. Therealty: "You'll get somebody calling your "You know I was havlng coffee with is such a contradictory attitude towardhome in the middle of the night. They'll my friends this morning, and I've got to people that handle these kinds of cases,"call and say, 'I know you've got a child; say none of us really appreciate what he says. "As much criticism as society imhowwould you like it if that happened to you're domg," said the man. "How could poses, I've never had a client come in hereyour cluld? That can he scary, and if you you possibly try to get this guy off?" and say they do not want constitutionalaren't scared, then you are damn foolish." Duncan got mad: '+I haven't gotten rights. The criticism I get for handlingAt least one ease hasleft Duncan scared: anybody off in my life. I have tried to these cases is just selfish criticism."In December 1982, the Texas Court of represent these people the best I can. Be- In keeping with the fees laid down byCriminal Appeals reversed the death pen- sides, the people who criticize me are the Texas' top defense attorneys, Duncanalty sentence of a Denton man accused of first ones to knock on my door when normally charges $150 an hour for hisraping and murdermg a teen-ager in 1978. they get in trouble."services. But court-appointed attorneys,Duncan and his co-counsel, Bill Wood, The construction worker replied "Yeah, thought they are compensated by therepresented the man. On appeal, he re- but those are the people who never get counties in which their cases are tried, sayceived a 30-year sentence, and then, this in trouble."they rarely earn what they would if theypast spring, he became eligible for parole.' Duncan, who only handles criminal de- had been hired rather than appointed.It wasn't glanted, but Duncan and Wood fense work, became even angner: "Bull! The law provides that attorneys he reimexperiencedsome anxious moments, Those are the kinds of people who subsi- bursed in capital punishment cases at notcomplete with hate mail, hate phone calls dize my practicing cmminal law. I don't less than $250 a day for trial work and atand hateful conversation. "lt was an ex- make any money handling these (death least $500 for the first appeal to the Texastremely difficult period, one that I had penalty) appointments. It's those people Court of Criminal Appeals. Other expensesthought . at the time, we would never sur- you're talking about that come in and usually are borne by the attorney.vive," says Duncan. pay me." Duncan estimates hundreds of hoursIt was not the first troublmg moment Duncan reflects on the exchange. He go into research, jury selection and trial8 VOICE for the Defense/ November 1984

work, and the seemingly endless array ofappeals through federal courts and theUS. Supreme Court go completely uncompensated."Take it from there," he says. "It canfinancially break you."What he sees as a confused set of standardsfor death penalty cases has alteredDuncan's view of the capital punishmentissue. "When I was in law school, Attiiathe Hun would have looked like a liberal.I had been raised that way. I thought thegreatest thing in the world was blowingup Vietnam. 1 thought it (the death penalty)was great. I couldn't understandwhy we weren't executing more people."Then all of a sudden you recognizethat our criminal justice system ain'twhat it should be. All 1 know is that thesystem is abused, by the police, the judiciaryand prosecutors. That can changeyour opinion."Philosophically, I'm not necessarilyopposed to the death penalty. This isgoing to shock a lot of people when itcomes out. But my complaint about thedeath penalty is the socially imposedfallacy that surrounds it. If we want, as asociety, the death penalty, why are we soashamed of our own attitudes about it?"Now, I'mnot saying I could go into ajury roomand say, 'All right, 1 know whathe did, let's kill him.' All I'm saying isthat the (expletive) needs a chance. He atleast deserves a shot at what the law giveshi. That's all I want to do."DILLY G. HUGHES JR. is aregistered lobbyist and an artist.He is also one of Texas' deathrow inmates. In 1976, he was convictedof shooting a 25-year-old Texas statetrooper. He has been imprisoned in theTexas Department of Corrections inHuntsville for close to eight years.Recently, Hughes wrote The DallasMorning News: "I have seen and heardabout all the many problems with lawyers,and I myself have gone through almosteight lawyers and may go through more.As for court-appointed lawyers, they aresell-out artists. These are laweyrs who donot have a practice and need the moneyand make deals with D.A.s (district attorneys)."In Texas, a court-appointed lawyer'slegal obligation to his client ends when aconviction has been affirmed by the TexasCourt of Criminal Appeals. At that point,attorneys withdraw for different reasons:Some, in order to convince a courttheir client deserves acquittal or a lessersentence, may drop out, telling a courtthey provided "ineffective counsel."Another attorney can take over and tryto prove the client didn't get a fair shakebecause the previous counsel hadn't donea thorough job. Occasionally, lawyers willeven deliberately "flaw" their cases soanother lawyer can later "discover" thatflaw and argue that the client's previouscounsel had been ineffective.Still others drop out because they'vebecome too emotionally attached. Someleave thinking there might be a lawyeravailable who is better at appellate work.Then there are those who drop out because,after the first appeal, the moneydries uppunless their client is wealthyenough to pay for their se~ces. But, asone Dallas attorney says, "There are damnfew Cullen Davises."That leaves the prisoner with either acourt-appointed attorney willing to staywith a case after his obligations end, orwith a new volunteer, often foundthrough other lawyers, the American CivilLiberties Union, the NAACP Legal DefenseFund or Amnesty International.Hughes' complaints are typical. Morethan one person scheduled to die in Texashas faced the realization that he is withoutany legal representation."There seems to be no way of findingout about the status of the Texas deathrow inmates without calls to all counsellisted in the (different) appeal papers,"Harvard Law School professor Alan Dershowitztold the American Bar Associationin Atlanta last year."But there is no provision for counselafter the first appeal. Knowledgeablesources believe that a considerable numberof death row inmates are withoutcounsel," said Dershowitz, in a speechexamining the treatment of capital punishmentissues in various states. "Thenames, addresses and phone numbers oflawyers are sold and bartered in prisonslikecigarettes. Occasionally, a lawyer willbe found who is willing to take over thecase. If that fact becomes known, he isimmediately deluged by requests fromother inmates."Death row inmates often have to relyon the different capital punishment moni-toring g-oups: "The major anti-deathpenalty organizations, often with a tinybudget, race around in a frenzy seekingvolunteer counsel, often from out ofstate, to file papers at the last minute,"said Dershowitz. "These organizationsfear, often for good reason, appointmentof local, often unqualified attorneys byunsympathetic judges. Many of these lawyers,according to several knowledgeablesources, 'taae the money and run.' Theyaccept the $250 or $500, file a pro-formamotion and get on with their real practice."CLIFF HOLMES REMEMBERSthe call he received from theACLU just before he left for avacation in Wyoming. It concerned DelmaBanks, 25, sentenced to death for an April1980 murder in Texarkana.Banks' trial counsel withdrew from thecase and didn't represent him on appeal,says Holmes. Another attorney tookBanks' case up on appeal with the TexasCourt of Criminal Appeals and the US.Supreme Court. Then Holmes receivedthe phone call. The ACLU asked him ifhe would take the case through the otherappellate processes. Holmes took over thecase in mid-December of 1983. Banks wasfacing an execution date of Jan. 4,1984.The Monday before Banks was scheduledto die, Holmes drove to Texarkanain an attempt to get Dist. Judge LeonPesek to postpone the execution. Holmes,whose office is decorated with pictures ofJohn Wayne and Western memorabilia, isusually considered by his peers to becompletely unflappable.But two days before Banks' executiondate, Holmes says he was feeling the pressure.After he was turned down in Texarkana,he drove to Austin with a lastminuteappeal to the Court of CriminalAppeals. By 8 a.m. Tuesday, Holmes wasstriding up and down hallways, demandingto see judges, cajoling clerks, pleading foran appointment. Finally, a stay of executionwas granted. He hopped back in hiscar and drove to Huntsville. He wasn'ttaking chances. He wanted to hand-deliverthe stay.Meanwhile, Banks was waiting to die.He had told other inmates that his "time"had come.Then something extraordinary happened:When a clerk from the Court ofNovember 1984/VOICE for the Defense 9

Crlmmal Appeals m Austin called theTexas Department of Corrections inHuntsville with orders to halt the execution,it was discovered that no one at theTDC was aware an execution was scheduledfor the next day.Holmes knew it, Banks was awatimg it,the vartous judges and prosecutors wereall expecting the lethal mjection. Butsomehow, the TDC had not received adeath warrant. The case became almostinstantly infamous as "The Execut~onThat No One Showed Up For.""Why the hell are we in such a hurryto kill these people?" says Hohnes now."It was way too close. It's scary, it'swild."Like other death row lawyers, Holmessays these dramatic last-minute staysasidefrom making good fodder for themedia-put gray hairs on his head. Andthey also reveal for him the humanitybehind the condemned person."It's kind of an ultimate trust, andyou feel it from them in the way theylook at you and the way they talk to you,"he says. "In fact, not just conceptuallybut in fact, they have said, here is my life,you are responsible for it."I read where one lawyer went downand viewed an execution," he says. "I'venever had one executed, but I can guaranteeyou, I won't he there. Ain't no way.I couldn't watch it. I just couldn't."He points to a client's correspondenceon hu desk. It is from Emmett Murrayvmcenrrerini: "rou rme on the burdens m ms man. snouraerin~ -it together. It's like &rying &tist s cross."10 VOICEfor the Defense/November 1984Holloway, on death row for the murderof a policeman. "Murray and I are fnends.He sends me letters with those little happyfaces on them. Heas just a sweet man,"says Holmes. "When I agree to undertakea client's case, I accept that trust he putsin me and try to do the best I can. I getpersonally involved, extremely personallyinvolved. I believe you can understand,and I don't mean condone, but understandwhat they did and why they did it."Richard Anderson provides a partialanswer for the motivations of attorneyssuch a Holmes; "Do we have a legal oh&gation to represent these people? Not atall. Do we have an ethical obhgation?That's up to the different lawyers tovdecide."INCENT PERINI IS ONE ofDallas' most prominent crinunaldefense attorneys. Often, peoplemention Perini and Me1 Bruder as the"grand old men" of Dallas capitalpunishmentcases. Perini is a former president ofthe Criminal Defense Iawyers Association,and he helped write the Effective Assistance of Counsel Act, which, in part, aimsto improve compensation for appomtedattorneys.As of this writmg, Perini representsRonald Chambers, sentenced in DallasCounty for the beating death of MikeMcMahon, a 22-year-old Texas Te~h engineeringstudent.Though he 1s concerned with ensuringthat crimmal defense attorneys get paidfor their work, Perini is also worriedabout the psychological wear and tear onattorneys representing people societyseems to have given up on."These are very heavy numbers," saysPerini. "You become a Christ figure. Youtake on the burdens of thu man, shoulderingit together. It's like carrying Christ'scross." Perini descnies the network ofpeople involved in the death row legal fraternityas "kind of a righteous underground.It has all the elements of earlyChristianity ."Other attorneys forego the religiousreferences, referring to death penaltycases simply as major "life changes." RonGoranson, Morrow's co-counsel alongwith 35-year-old Bill Bratton, has beenappointed to fou death penalty cases.(continued on page 15)

'SIGNIFICA NTDECISIONSREPORTL1)I'l'OK:Kcrrl, 1'. Fil,.

1 U.S. v. LANE, NO. 83-1742, Revld, Judge Goldberg, 6/18/84 (Slip Op. 4400).MISJOINDER: TWO Ds were indicted in a six count indictment as follows:Count 1 - mail fraud in connection with a fire insurance claim on arestaurant in 1978 (D #1 only); Counts 2 through 4 - mail fraud inconnection with a fire claim on a duplex in 1980 (both Ds); Count 5 -conspiracy to commit mail fraud in connection with a flower shop in1980 (both Ds); and Count 6 - perjury before the grand jury relating tothe flower shop (D #2 only). Ds moved to sever counts under Rule 8(b),F.R.C.P., and the District Court overruled the motion.On appeal, the Court considered the critical question: whether allof the counts are part of the same series of acts or transactions. TheCourt held that since there were no facts which could be proved toestablish guilt under Count 1 which would also establish any of theoffenses alleged in Counts 2-6, Count 1 was improperly joined. The Courtalso noted that Count 1 was improperly joined as to D #2 since he was notinvolved in the transaction upon which Count 1 was based.SUFFICIENTY OF EVIDENCE/MAIL FRAUD: The Court also rejects Ds' argumentthat mailings after the date of settlement with the insurance companycannot be in furtherance of the alleged scheme to defraud, distinquishingU.S. v. Maze, 414 U.S. 395 (1974) and U.S. v. Ledesma, 632 F.2d 670 (7thCis. 1980) bv holdinq that the mailinss (proof of loss statements) wereintended to and did have a lulling efiect-on the insurance company.U.S. V. FOWLER, No. 83-4713, Rev'd, Judge Johnson, 6/20/84 (Slip Op. 4439).JURY INSTRUCTIONS: D, charged with mail fraud, introduced evidence of thedefense of good faith, which is a complete defense. U.S. v. Goss, 6501. F.2d 1336, 1344 (5th Cir. 1981). D also requested charge on good faith,but trial judge refused to give it and based his refusal on the fact thathe was charging the jury on specific intent.The Court cited Goss and noted that a charge on specific intent isinsufficient since itdoes not direct the jury's attention to the defenseof good faith. Accordingly, the Court reversed even though the D'srequested instruction "was overly broad." Slip Op. at 4446.U.S. v. CHAGRA, NO. 83-1807, Aff'd, Judge Tate, 7/9/84 (Slip Op. 4499)APPEALS: On October 18, 1983, District Judge denied D's motion for a newtrial based on Rule 33, F.R.C.P. On November 2, 1983, D filed notice ofappeal. On November 7, 1983, the District Judge's order of October 18,1983, was "entered" on the criminal docket of the case. Similarly, onNovember 7, 1983, D's notice of appeal was docketed. Since Rule 4(b),F.R.A.P., provides for notice of appeal within 10 days "after the entryof the judgment or order appealed from," the Government asserted thatnotice of appeal was untimely, However, Rule 4(b), F.R.A.P. also statesthat a notice of appeal filed after the announcement of a decision,sentence or order "but before entry of the judgment or order shall betreated as filed after such entry and on the day thereof." ~ccordingly,the notice of appeal was timely.SDR-2 VOICG for the Defeme/Navember 1984

U.S. V. BURTON, No. 83-2579, Rev'd, Judge Higginbotham,7/11/84 (737 F.2d 439)JURY INSTRUCTIONS: D, accused with failure to file income tax returns andfor filing false withholding forms, raised the defense of good faith beliefthat wages were not income. Over D's objection, the District Court chargedthe jury that, as a matter of law, a good faith belief that wages are notincome is not a defense.On appeal, the Government acknowledged that a claim of good faithwould negate the specific intent required under the statutes involved, butargued that a claim of subjective innocence (good faith] must be "objectivelyreasonable." In other words, the Government asked the Court toallow ~istrict Judges to review claims of good faith to ascertain if theyare sufficiently credible to justify a jury instruction.The Court noted that although wages are income as a matter of law, itwas still up to the jury, not the judge, to ascertain whether D, in goodfaith, did not know that the law included wages in taxable income. TheCourt drew a distinction between willful defiance of a statute and ignoranceof the existence or meaning of the statute. Thus, the Court heldthat the judge erred by instructing the jury over the D's objection.PETITE JURY FOREMAN: On appeal, D urged for the first time that theDistrict Judge had committed reversible error by appointing the jury foreman.The Court did not find that the procedure constituted plain errorunder Rule 52(b), F.R.C.P., but it did note the potential effect suchaction could have on the dynamics of jury deliberation and the potentialfor unwanted and unintended appearance. Accordingly, the Court essentiallycondemned the practice by stating:While we are not prepared to strike down the practice, asprejudicial error or as a matter of superintendence, forwe are not persuaded that the utility of the practiceoutweighs its potential for prejudice; it ought then tobe judiciously engaged in, if not abandoned for lack ofdemonstrated worth.U.S. V. TURNER, No. 84-1142. Vacated & Remanded (in part), Judge Tate,8/29/84 (Slip Op. 5651)SENTENCING - RIGHT TO ALLOCUTION: D pleaded guilty to wire fraud. Sentencingwas deferred (i.e., imposition of sentence was suspended under 18U.S.C. S3651, as opposed to execution of sentence being suspended) and Dwas placed on probation. D's probation officer subsequently filed a petitionalleging that D had violated three conditions of his probation.After a hearing, the District Judge revoked D's probation and proceeded toimpose sentence. Howev,er, sentence was imposed without addressing the Dpersonally and ascertaining if the D wanted to make a statement or presentany information in mitigation of punishment, as required by Rule 32(a) (1)(c), F.R.C.P.On appeal, the D asserted that the Court's non-compliance with Rule32(a) (l)(c) entitled him to a remand for re-sentencing. The Court statedNovember 19841 VOICE for the DefenseSDR-3

that the right of allocution was an absolute right under the Rule andremanded the case.NOTE: The right to allocution at the probation revocation would nothave been available if the District Court had not suspended the impositionof sentencing. If he had previously sentenced D but suspended the executionof sentence, no right of allocution would have been available. Cf.Rule 32.lta) (2) (c) , F.R.C.P.U.S. V. NICHOLS, No. 83-3511, Aff'd in part, Rev'd in part, Judge Politz,9/17/84 (Slip Op. 56572DOUBLE JEOPARDY: D, a pilot, was involved in four different incidents ofsmuggling or attempted smuggling of cocaine fr~m Columbia into Louisiana.Four different indictments were returned against D (and various otheractors in the four incidents).Indictment #1, based on a July 1982 smuggle, charged conspiracy toimport, conspiracy to possess with intent to deliver, importation andpossession with intent to distribute. Each count encompassed the timeperiod of June 1, 1982, through June 24, 1983, and referred to 100 kilogramsof cocaine.Indictment #2, based on an August 1982 smuggle, charged conspiracy toimport, conspiracy to possess with intent to deliver, importaion andpossession with intent to distribute. Each count encompassed the timeperiod of June 1, 1982, through June 24, 1983, and referred to 250 kilogramsof cocaine.Indictment #3, based on an October 1982 smuggle, charged conspiracy toattempt to import and to import, conspiracy to attempt to possess and topossess with intent to distribute, and an attempt to import [this indictmentis not directly involved in the appeal].Indictment #4, based solely on a planned but unexecuted smuggle afterOctober 1982, charged conspiracy to import cocaine and conspiracy topossess cocaine with intent to distribute. Both counts encompassed theperiod of time after October 1, 1982.D was tried and convicted of both counts in indictment #4.Although the opinion is not at all clear as to the procedural historyafter D's trial on indictment #4, it appears as if D was scheduled to beput to trial on indictment #1 and #2 when he flled motions to dismiss dueto double jeopardy, for the Court stated the issues as follows:"(1) do prior convictions of conspiracy to importcocaine, 21 U.S:C. §§ 963, 952, and conspiracy topossess with intent to distribute cocaine, 21 U.S.C.§§ 846, 881 (a) (1), based upon one shipment ofcocaine, bar the pending prosecution for the substantiveoffenses of importing and possessingcocaine with intent to distribute, 21 U.S.C. §§841(a) (l), 846; 18 U.S.C. 2; and (2) do thoseSDR-4 VOICE for theDefensejNovember 1954

The Court's holding was based on the inability of the government to showat the first sentencing hearing that the D killed, attempted to kill orintended to kill.U.S. V. BI-CO PAVERS, INC., NO. 83-1817, Aff'd, Judge Gee,9/4/84 (Slip Op. 57361JURY INSTRUCTIONS: D was charged with conspiracy in restraint of trade(bid rigging) and mail fraud. D presented evidence that its agents hadmerely intended to form a joint venture with an alleged co-conspirator, asopposed to soliciting a complimentary, non-competitive bid (bid rigging).D requested a jury instruction to the effect that it is not unlawful fortwo bidders to discuss their bids for purposes of joint venture bidding,hut the District Court did not charge the jury on this defensive theory.On appeal, D argued that the failure to charge the jury on this theoryconstitued error. The Court first noted that since D's objection to theDistrict Court's failure to give the requested instruction came only afterthe jury began deliberating, the objection was not timely under Rule 30,F.R.C.P. The Court also held that since D's counsel argued the defensivetheory to the jury, the failure to charge the jury was not plain errorunder Rule 52(b), F.R.C.P.NOTE: Rule 30 requires an objection to preserve error. Merely filinga requested instruction, without more, does not preserve error. Thus, thebest way to preserve charge issues in federal court may well be the following:(1) have a charge conference (on the record) prior to final arguments:(2) voice all objections to the charge at said conference after theDistrict Judge finalizes the charge and obtain rulings thereon, (3) askthat when the Court retires the jury after final arguments and the readingof the charge, he specifically tells the jury - not to begin deliberations;(4) renew all objections after the jury has been retired, as described in(3) above, again obtain rulings thereon, and then have the jury broughtback in for an instruction by the District Judge to the effect that thejury can now begin its deliberations. This procedure should avoid anypossibility that the judge may retire the jury to begin its deliberationsprior to the time you have preserved your objections.U.S. V. EILAND, No. 83-2439, Rev'd, Judge Clark, 9/4/84 (Slip Op. 5745)JURY INSTRUCTIONS: D failed to testify at his trial. The Court chargedthe jury that:"The indictment or formal charge against a defendantis not evidence of guilt. Indeed, the defendant ispresumed by the law to be innocent. The law doesnot require a defendant to prove his innocence orproduce any evidence at all. The Government has theburden of proving him guilty beyond a reasonabledoubt, and if it fails to do so, then you mustacquit him."However, the D objected that the foregoing "burden of proof" charge did notinclude anything on D's failure to testify.SDR-6 VOICEfor the Defense/November 1984

On appeal, the Court held that the "burden of proof" charge was significantlydissimilar from a "failure to testify" charge and did not satisfythe requirements of the Fifth amendment. U.S. v. Bain, 596 F.2d 120 (5thCir. 1979). The Court also held that under the facts of the case, theerror was not harmless error under Chapman V. California, 386 U.S. 18(1967).U.S. V. CORBETT, No. 83-2758, Vacated & Remanded, Per Curiam,9/5/84 (Slip Op. 58161GUILTY PLEAS/RULE 11: Pursuant to a plea bargain agreement, D pleadedguilty to two counts and was sentenced. On direct appeal, D asserted thatthe government had breached the written plea bargain agreement. Althoughthe Court quickly rejected D's argument, it - sua sponte reviewed the Rule 11transcript and found that the District Court had totally failed to ensurethat the D understood the nature of the charges against him. The DistrictCourt did not read the charge to the D and did not even tell the D what theelements of the offense were. Rather, he merely asked the D if he understoodthe charges. Since the nature of the charge is one of the three coreconcerns in Rule 11, F.R.C.P., U.S. v. Dayton, 604 F.2d 931, 940 (5th Cir.19791, and there was a total failure to address it, the case was vacatedand remanded to the District Court with instructions to allow the D toplead anew. See also U.S. v. Patterson, 739 F.2d 191 (5th Cir. 1984).TUBWELL V. GRIFFITH, No. 83-4659, Aff'd, Judge Davis,9/24/84 (Slip Op. 5913)PRISONER RIGHTS: D, incarcerated in a Mississippi prison, violated a regulation.After a hearing, his custody status was reduced. As a result ofhis new custody status, he was required to wear leg shackles and waistchains when he used the prison library. Thus, when D went to the library,his a b i E to walk was somewhat impeded and he had the free use of onlyone hand. Both hands were freed, however, when he wanted to use a typewriterin the library.D filed suit and sought a preliminary injunction seeking to enjoin theuse of the restraints when he was in the library. D argued that the restraintsobstructed his access to the library, hindered his ability topursue litigation, and thereby denied him access to the Courts. TheMagistrate and District Judge denied relief.On appeal, the Court held that D had failed to demonstrate that therestraints effectively blocked meaningful access to the courts. The Courtconcluded that the restraints entailed, at most, a de minimus interferencewith D's constitutional right to access to the courts since he was able toprosecute the instant lawsuit.,November 1984/VOICEfor the Defense SDR-7

must be some corroborating testimony tending to connect D withthe offense. Eliminating from consideration the accomplice'stestimony, the remaining evidence is then examined for sufficientconnection of the D with the commission of the offense. Thiscorroborative evidence need not be a direct link, or establishguilt beyond a reasonable doubt, but it must do more than "pointthe finger of suspicion" at D. The facts which are thuscorroborated must connect D to the crime. The corroborativefacts established were insufficient to meet the requirements ofArt. 38.14.WILLIE MORRIS YOUNG, No. 128-84, Rev'd and remanded (State'sPDR), Judge Onion, 9/19/84.ATTEMPTED BURGLARY OF A HABITATION INDICTMENT SUFFICIENT: Theindictment alleged that the D did unlawfully attempt to enter ahabitation owned by X by breaking a windowpane, having intent tocommit burglary. The C/A held the indictment for attemptedburglary was defective for failure to allege a second specificintent element in light of the D's Motion To Quash, and rev'd theconviction. This C/A opinion conflicted with Hudson Y,638 S.W.2d 45 (Tex. App. - Houston, 1st Dist., 1982) (PDR ref'd1982) which held that an indictment for criminal attempt is notfundamentally defective for failure to allege the constituentelements of the offense attempted. In this case it was held thata similar indictment is not subject to a Motion To Quash. Thus,the C/A judgment was rev'd and the cause remanded for considerationof the other grounds of error.LEONARD GLEU TAYLOR, No.9/26/84.69,305, Dis'd as moot; Per Curiam,APPEAL FROH ORDER DENYING BAIL UNDER ART. I, SEC. lla, TEX.CONST.--: The T/C, on the State's motion, ordered the D heldwithout bond under Art. I, Sec. lla of the Tex. Const. The D wasarrested and charged with burglary of a building, and thereafterthe State alleged that at the time of the commission of thisoffense the D was already on bond for a prior felony, i.e.,burglary of a building which offense occurred prior to thisoffense. The T/C denied bond and N/A was filed.A D who has been denied bond under this article must be triedwithin 60 days from the time of his incarceration upon theaccusation, or the order denying bail will be automatically setaside. The court noted that the 60 day period had expired andthat there was nothing in the record before the CCA to indicatethat a continuance had been obtained upon either the accusationor the pending indictment upon the motion or request of theaccused and therefore the court must assume that either the D hadbeen accorded a trial on both the prior indictment and thesubsequent accusation or that the 60 days having run the orderNovember 1984/VOICEfor #he Defense SDR-9

denying bail had been automatically set aside. Either way theissue was not moot and the appeal must be dismissed.Ur No. 84-1608, Aff 'd, Judge Tate, 9/12/84 (SlipOp. 59421BAIL: D, charged with four counts of drug violations and onepassport law violatjon, appealed from the District Court'simposition of ONE MILLION DOLLAR BOND.On appeal, the Court upheld the District Court. The Court notedthat the District Court had found that: (1) D had a priorconviction; (2) D was facing 10 to life, if convicted, andforfeiture and fines in excess of $170,000; (3) D had been afugitive for two years prior to his arrest; (4) D had threepassports under various aliases; and (5) D had no significantcommunity ties. The Court also noted and approved the DistrictCourt's finding that the government's proof at the bail hearingsupported an inference that D would be convicted and that ifreleased, he would flee (since he had several hundred thousanddollars in banks in and outside of the country).EVIDENCE/BAIL HEARING: D asserted that the hearsay testimonyregarding the D's involvement and his financial resources shouldnot be deemed sufficient to support the District Court's factualfindings. The Court held that since Rule 11OL(d) (31, F.R.E. and18 U.S.C. Sec. 3146(f) specifically exempted bail hearings fromthe purview of the Federal Rules of Evidence, the hearsay couldproperly be considered.KNIGHTON V. mG(3m, No. 84-4490, AfI'd, Judge Politz, 8/27/84(Slip Op. 5609)DEATH-QUALIFIED JURORS: D asserted that his right to trial by animpartial jury was violated when he was tried by a jury qualifiedpursuant to the requirements of L -, 391 U.S.510 (1968). Relying on W n Y, Cia-, 578 F-Supp. 1164(W.D. N.C. 1984) and Q&s& L Bakxy, 569 F. Supp. 1273 (E.D.Ark. 1983). the D had asserted that jurors disqualified underWitherspoon could serve at the guilt phase of a capital case andthat the scientific evidence available supported the conclusionthat excluding such jurors at the guilt phase denied the D a jurychosen from a fair cross section of the community.The Court stated: ,"The argument is not to be gracelessly ignored, but itmust be directed to other fora, legislative and judicial.It is not for this court, at this time, in thissetting, to plow that legal furrow."SDR-10 VOICEfor the DefenseJNovember 1984

A little bit of humor:hires a staff of lawyers.Money talks, but big money doesn't--itRecently noted in the Dallas Morning News: Former PresidentGerald R. Ford says his golf game is greatly improved "And thebest evidence is, I'm hitting fewer spectators". In Tucson,Arizona, Sunday, Ford said that in appearances around the countryhe expects to be asked serious questions about domestic policy orinternational affairs. "But almost invariably", he said, "peopleasked, 'how's your golf game?'". Ford said comedian Bob Hope''goes around the country telling huge audiences that I have madegolf a combat sport, that I'm the only guy who can play fourcourses simultaneously, that I'm the hit man for the PGA, andthat I played so bad the other day that I lost two balls in theball washer."Recently appearing in the Insurance Litigation Reporter, May/July1984 edition, was the following: Collateral estoppel -conviction in prior criminal proceeding barred relitigation ofwhether insured intentionally set fire on his business premises -California's rule adopted:In a case of first impression, the Montana Supreme Courthas held that an insured's conviction of arson in a priorcriminal proceeding precluded relitigation of whether the insuredintentionally set fire to his premises in a subsequent civilaction brought by a third party to establish damages andliability coverage.Insured was convicted of arson in connection with a firecausing extensive damage to his pet shop and adjacent businesses.His insurer thereafter brought a declaratory judgment action toestablish that the policy's intentional harms exclusion precludedcoverage, The insurer of the surrounding businesses, however,intervened in the declaratory relief action to establish thatinsured was guilty of negligence in causing the fire and therebyobtain indemnification under insured's liability policy.Insured's insurer moved for summary judgment, arguing that resjudicata principles prohibited relitigation of insured's intentin the later civil action. The trial court granted the motionand the insurer of the surrounding businesses appealed.The Montana Supreme Court affirmed, holding that collateralestoppel prohibited relitigation of whether the fire was intentionallyor nesliqentlv set. Adoptins the California SupremeCourt 's-reasonifig in T&A&uu ~urs. isz YI DminiQn m-m.,58 Cal.2d 601, 25 Cal. Rptr. 559, 375 P.2d 439 (Cal. 19621, thecourt held that three questions are pertinent to the applicabilityof collateral eBtoppe1 in a civil proceeding following acriminal proceeding: "(1) Was the issue decided in the prioradjudication identical with the one presented with the action inquestion? (2) Was there a final judgment on the merits? (3) Wasthe party against whom the plea is asserted a party or in privitywith a party to the prior adjudication?" In this case, the courtsummarily answered the first and second questions affirmativelyNovember 1 9841 VOICE for the Defense SDR-11

and turned to the question of whether the insurer of thesurrounding buildings was in privity with the insured. In con-cluding that privity existed, the court pointed out that theinsurer of the surrounding buildings and insured had an identityof interests -- establishing that the fire was negligently caused-- in the criminal proceeding. -a Lik and hur Johnson, 673 P.2d 1277 (Mont. 1984).(Editor's Note: Interestingly, the insurer of the surroundingbuildings attempted to collaterally attack a criminal convictionfor intentional burning to defraud an insurer. Implicit in thecourt's rejection of this effort may have been a public policydecision not to weaken the leaal - vosition -of insurers inresisting fraudulent claims.)SDR-12 VOICEfor the DefenselNovember 1984

Out of -Time AppealsJoe Connors of McAllen has kindly Order granting this motion.authorized the publication of his motion 7. Number of extensions previouslyand brief in support of permitting an out- granted for this item: None.of- time appeal Ed. 8. Court Reporter's Affidavit: None.9. Good cause for the granting of thismotion is the following:a. The supplemental record hereinMotion for Out-of-Time Notice contains the sentencing hearingof Appeal with Supportingherein. (R. VIIL) No formal noticeof appeal was transcribed by theLegal Memorandumcourt reporter during the proceed-(Article 44.08(e), V.A.C.C.P. (1981) ings in open court on June 8, 1983.At that hearing, the trial court didTo the Honorable Court of Appeals:not explain much to appellant - - abouthow to properly exercise most ofAppellant, now comes by and throughhis appellate rights (R. VIII- 4 to 5),his attorney of record, and files thiseven though the appellant was anMotion For Permission To Give Anindigent person.Out-Of-Time Notice of Appeal in thisb. Appellant's trial counsel, Honorablecause. Although notice of appeal hereinRobert E. Motsenbocker, has testishouldhave been properly recorded on orfied herein by his affidavit of Maybefore June 23, 1983, there is no record29, 1984. That affidavit has beenin this cause showing that an oral noticeattached hereto as Exhibit A, andof appeal was timely made in open courtis hereby incorporated herein for allor that a timely written notice of appealpurposes.was timely filed with either the trial courtc. Appellant Clifton Eugene Fain hasor it's clerk. By authority of Articletestified herein by his affidavit of44.08(e), V.A.C.C.P. (1981), appellant re-May 11, 1984. That affidavit hasquests that for the good cause shown inbeen attached hereto as Exhibitthis motion, this Court permit appellantB, and is hereby incorporatedto give notice of appeal in this cause afterherein for all purposes.the expiration of 15 days after sentencingd. Appellant Clifton Eugene Fain has(since no motion or amended motion foralso testified herein by his supplenewtrial was filed). As the basis for themental affidavit of September 21,relief requested, appellant shows the- ,1984. That affidavit has beenLourI:, attached hereto as Exhibit BB,1. Convicting Court: 83rd District Court and is hereby incorporated hereinof Pecos County, Texas.2. Trial case number and style: No. 1573,State vs. Clifton Eugene Fain.3. Offense: Rape.4. Sentence: Life (Habitual Offender).5. Present deadline for filing notice ofappeal: June 23,1983.6. Future deadline: Within 15 days of thefor all purposes.e. Appellant's second appellate counsel,Honorable Joseph A. Connors111, has testified herein by his affidavitof September 7, 1984. Thataffidavit has been attached heretoas Exhibit C, and is incorporatedherein for all purposes.f. Appellant's first appellate counsel,Honorable Martin Underwood, hastestified herein by his affidavit ofSeptember 27, 1984. That affidavithas been attached hereto as ExhibitD, and is incorporated herein for allpurposes.g. Appellant's trial judge, HonorableTroy D. Williams, has testified hereinby his affidavit of September 25,1984. That affidavit has beenattached hereto as Exhibit E, andis incorporated herein for all purposes.h. This Court should find as true andcredible testimony all the evidence,which has been presented on thismotion by each witness' affidavit.i. The failure of the record herein tocontain a proper and timely noticeof appeal did not occur with theknowledge and consent of the appellant.Appellant did not knowinglyand intentionally waive the rightto appeal this case when he representedthe contrary to trial counselwithin 15 days of the June 8,1983sentencing in this case. Thus, theappellant's federally protected rightto a meaningful appeal with counselhas been infringed. Steps should betaken not only to provide effectiveaid of counsel on appeal as the trialcourt obviously has done already,but also to provide a meaningful appealfor this destitute appellant,who timely indicated to trial counselhis desire to exercise his right toappeal at every opportunity. Sinceappellant did not knowinglyand voluntarily waive his right toappeal this case, but timely askedhis trial counsel to exercise thatright, this Court should find thatsufficient evidence of good causeNovember 1984/VOICEfor the Defense 11

However, in the case at bar, no timelynotice of appeal was submitted.In the record before this courtthe trial court has not actuallymade a fmding in this case that'good cause' has been shown, andwithout any findings as to the credibilityof appellant's testimony atthe hearing, wehold that appellant'suncorroborated, self-serving testimonyis insufficient to show 'goodcause' for granting the relief requested.See Ex parte Young, 479 S.W.2d 45 (Tex.Cr.App. 1972); Ex parteRocha, 482 S.W.2d 169 (Tex.Cr.App. 1972).The appellant having failed to establishgood cause for perfectingthe belated appeals, the appeals aredismissed.Notice of appeal was properly given missal, it was reinstated].under Article 44.08(e), V.A.C.C.P., in thefollowing cases: Hollingsworth v. State, Respectfully submitted,419 S.W.2d 854,855 (Tex.Cr.App. 1967); JOSEPH A. CONNORS 111,Herbort v. State, 422 S.W.2d 456, 457 Attorney for Appellant(Tex.Cr.App. 1967); Miller v. State, 460S.W.2d 427 (Tex.Cr.App. 1970); and MARTIN UNDERWOODCherb v. State. 472 S.W.2d 273 ITex.Cr. Attorney for AppellantApp. 1971).Therefore, this Court should grantappellant's motion so that the movant's Beepersappeal may be perfected to this Court,for as in King v. State, 634 S.W.2d 794,by Walter Boyd795 (Tex.App.-Fort Worth 1982, no review),where the Court said:For good cause shown, this court isauthorized to permit late filing of anotice of appeal. Art. 44.08(e),supra.We must conclude that, uponSee also Morton v. State. 502 S.W.2d 121 the facts, good cause has been(Tex.Cr.App. 1973); Martinez v. State, shown and movant has been denied51 1 S.W.2d 934 (Tex.Cr.App. 1974); reasonably effective assistance ofFaris v. State, 514 S.W.2d 946 (Tex.Cr. counsel throughno fault of his own.App. 1974).The brief filed in support of theIn Proctor V. State, 465 S.W.Z~ 759, motion asserts that if permitted, an760 (Tex.Cr.App. iwi), the court said: appeal present an arguable meritoriousissue challenging the sufficiencyof h~s mdictieni. We mayIt is observed that upon a showingof good cause, the trial court inthe case at bar may still permit thegiving of notice of appeal, and insuch event, proceedings may then behad in the trial court pursuant toArticle 40.09, V.A.C.C.P. See Herbortv. State, (Tex.Cr.App.), 422S.W.2d 456; Hollingsworth v. State,(Tex.Cr.App.), 419 S.W.2d 854;-In the event that the trial courtdoes permit the giving of notice ofappeal under Section (e) of Article44.08, supra, then this indigentappellant must be furnished a completerecord on appeal. See Griffinv. Illinois, 351 US. 12, 76 S.Ct.585, 100 L.Ed. 891.Even if timely notice of appealhad been given in the case at bar,this court would have been unableto have passed on the sole groundof error presented in light of thepartial record brought forward.Under any circumstances, the appealwould have to have been abated untila complete record was furnished.For the reasons stated,the appealis dismissed.not consider that issue here.The proper relief, therefore, is togrant an out of time appeal. Ex parteBanks, 580 S.W.2d 348 (Tex.Cr.App. 1979).The motion is granted in orderthat the movant's appeal may beperfected to this court.See also Chappell v. State, 519 S.W.2d452 (Tex.Cr.App. 1974),appealreinstated,519 S.W.2d 453 (1975) and Smith v.State, 424 S W.2d 228 (Tex.Cr.App.1968) [where following the appeal's dis-ASSISTANT FEDERAL PUBLICDEFENDERfor the Western Districtof Texas, position in San Antonio.See 18 U.S.C. 53006A. Must be hilingual(in Spanish), and be licensedfor at least one year. Federal criminaltrial experience preferred. Resum6or Standard Form 171 toLucien B. Campbell, Federal PublicDefender, 727 E. Durango Blvd.,B-138, San Antonio, Texas 78206.The following poem was inspiredby Knox Jones' search and seizurejeremiad at the Advanced CriminalLaw Institute in San Antonio thissummer. See US. vs. Karo, S. Ct.,July 3, 1984, 35 Cr.L. 3246, convictionreversed.The State can go pretty farBecause there's simply no barTo placing a beeper in a jarAnd planting the jar in a car.So all this has Knox Jones reallyweepingFor the fourth amendment hethinks we're not keepingInto our lives he sees the GovernmentseepingAnd the loss of all our freedomsis what we're reapingBut there're limits on a scientificpeeperThe State may not use a beeperTo spy on a housekeeperA driver is unlike a sleeper.We all started getting behoovedEven the Supreme Court finally gotin the grooveSaying homes unlike automobilesdo not moveAnd residents have the right to besoothed.The Court reversed the homebeeper convictionThus removing some of the defenselawyers' frictionBut it nevertheless sounds so muchlike fictionThat Jones still refuses to say thebenediction14 VOICE for the DefenselNovember 1984

Changes in the TexasControlled Substances SchedulesPursuant to Subchapter 2., Section 2.09, Paragraph (e), Arbcle 4476-15, Vernon'sTexas Civil Statutes, and at least 30 days having expired since the hereinafter actionwas taken by the Federal Drug Enforcement Administration and published in theFederal Register, and in my capacity as Comnussioner of the Texas Department ofHealth, I do hereby order that Subchapter 2., Section 2.03, Paragraph @), Article4476-15, Vernon's Texas Civil Statutes, be amended to delete the substance Sufentaniland to read as follows:(b) Any of the followmg opiates, mcluding their isomers, esters, ethers, salts, andsalts of isomers, esters, and ethers, unless specifically excepted, whenever the existenceof these isomers, esters, ethers and salts is possible withm the specific chemical designation:1. Allylprodine;2. Alpha-methylfentanylor any other derivativeof Fentanyl;3. Bemethidine;4. Betaprodins;5. Clonitazene;6. Diampromide;7. Dietbylthiambntenc;8. Difenoxin;9. Dimenoxadol;10. Dimethylthiambutene;11. Dioxaphetyl butyrate;12. Dipipanone;13. Ethylmethylthiambut~ne;14. Etonitazene;15. Etoxeridine;16. Furethidine;17. Hydroxypethidine;18. Ketobemidone;19. Levophenacylmoophan;20. Meprodine;21. Methadal;22. Moramide;23. Momhendine;24. Noracymethadol;25. Norlevorphanol;26. Normethadone;27. Norpipanone;28. Phcnadoxane;29. Phenampromide;30. Phencyclidine;31. Phenomorphan;32. Phenoperidine;33. Piritramide;34. Proheptazine;35. Pmperidine;36. Propiram;37. Trimeperidine;38. Tilidine.I further order that Subchapter 2., Section 2.04, Paragraph (c), Article 4476-15, Vernon'sTexas Civil Statutes, be amended to add the substance Sufentanil and to read asfollows:(c) Any of the following opiates, including their isomers, esters, ethers, salts, andsalts of isomers, whenever the existence of these isomers, esters, ethers, and salts ispossible within the specific chemical designation:1. Alphaprod~ne;2. Anileridine;3. Bezitramide;4. Dextropropoxyphene, Bulk (nordosage forms):5. D~hvdrocodeine:8. Isornethadone;9. Levomethorphan;10. Levorphano~;11. Metazocine:12. Methadone;13. Methadone-Intermediate, 4-cyana-2-dimethylamino-4,4diphenyl butane;14. Moramide-Intermediate, 2-methyl-3-marpholino-1, I-diphenyl-propane-carboxylic acid;15. Pethidine:19. Phenazacine;20. Piminodine;21. Racemorphan;22. Sufentanil.Done at Austin, Texas on this 14th day of August 1984 in witness whereof I havehereunto set my hand and seal of office.Robert Bernstein,M.D., F.A.C.P., Commissioner of HealthDeath Row Lawyers from p. 10"When I got my first one," he says, "Iunderstood it was kind of a rite ofpassage, that you weren't a trial lawyeruntil you had done one death penaltycase. There are some lawyers who say youare not a trial lawyer unless you havedone several death penalty cases."Goranson, 39, now qualifies as aveteranin death penalty work; the distinctiondoes not make the task any easier to understand.He has found himself weighingthe advice of Stu Kiner, an Austin attorney:"He said to go to a funeral, watchwhat happens. Then go to a nursery at ahospital. Then go to a grade school. Thenask yourself what could take those innocentsouls, and wind up with the personsitting next to you in the courtroom. Youhave to make the accused human.It just so happened that I was going toafuneral, and I watched people. It changesyou a bit. And now, looking back on thetrial (Morrow's), I'm sure we could havedone a lot better. I donY know if wewould have done anythmg strategicallydifferent. There just would have beenbetter ways of expressing ourselves."That's Monday morning quarterbackingBut the day I die, I'll be thinkingabout that. Particularly if Ricky Morrowdies. That will stay with me forever." .Rusty:For some completely unknown andweird reason, after reading the articleabout the "Death Row Lawyers,', Iasked people to guess ya'll's professions(just by showing them thepictures only). Here are the results:RUSTY DUNCAN-Criminal;Mafia hit manRON GORANSON-BankerRICHARD ANDERSON-Obsfetrifion; Cor salesmanVINCENT PERIN-PmcherSCRAPPY HOLMES-Mean CopBILL BRATTON-ProsecutorMEL BRUDER-Insurance adjuster(submitted by George Roland, Attorney)November 1984/VOICE for the Defense 15

Hearsby Walter Boyd and Allen C. IsbellQuote of the Month: "It is difficult to Pennsylvania, but spent an extended weekspeakof anything as 'normal' that happens end inVermont. Rumor is she stayed at thein the 176th"-Judge WiIIh Hatten Stratford Inn and enchanted Bob New(176th Houston). True, Judge, true! hart with conversation .. David Zavoda,Interesting story about thee County who received a call from the 14th CourtCriminal Court Judges who played golf in of Appeals that his case had been affirmed,Galveston during the recent Judicial Con- was relieved when I explained that theyference. Judge Sherman Ross and Judge call everyone-He thought they wereDon Hendrix enjoy playing practical rubbing it in.. . CharlolteHarrfs sponsoredjokes -Ask Judge Neil Richardson about 3 movies on the death penalty at the Ricethe "explodimg golf ball" trick-I cannot Media Center . . . Carolyn Hebert andlearn whether there was a golf rematch Stefan Presser (Staff Counsel ACLU) rebetweenJudge Jack Treadway and Judge cently married.Bendpix ...Michael Guarino. Mr. D.A. in Don't get caught in Jefferson CountyGalveston County and father, Judge Joe since 72% of all felony cases end with penGuaribo (183rd Houston) visited during time-Ironically, JudgeGistfrom Jeffersonthe conferences.County is a frequent lecturer at our sem-If Diogenes had stumbled into the inars on "Creative Sentencing" . . . AHarris County Criminal Court House Statewide report on prison sentences indimaintenancebullding, he would have cates that whites, hispanics and blacksfound his honest man-MoNie Childs left receive comparable prison terms. Amongher purse in the 176th District Court males convicted of murder, blacks receiveroom-Clul Laird, from building mainten- an average sentence of 14.7 years, Hispanance,found it and returned it the follow- ics 23.1 years and whites 21.1 years.ing day with all the cash, credit cards, etc. Among males convicted of robbery, blacksintact.received an average sentence of 12.8 years,CDLP Executive Director Jeanne Kit- Hispanics 9.9 years and whites 11'9 years.dens toured New England during a fall Increasing numbers of first offenderssenvacation.The colors of changing foliage tenced to pnson. In 1980, 63.2% werewere brifliant. She headquartered m handed prison sentences; in 1983, 68.2%went to prison . . . Jefferson County hasexperimented with a "No plea bargainpolicy" fur all felontes-After a year,backing off policy to allow plea bargainingin 2nd and 3rd degree felonies-backlogof cases making docket unmanageable.Editor M.P. '2ususfy "DuncanlTlhas aprotective secretary-"Hearsay" diedand his secretary said he had a grievancecommittee meeting scheduled-learningwho was calling, she quickly added: "He'son the committee!!"-Wouldnot give"Hearsay" her name . . . Yours truly(A.C.I) had one "snatched from the jawsof victory" when the Court of CriminalAppeals accepted State's P.D.R. andunanimously held the evidence to be sufficientin a burglary case based on anidentification of a jar of pickled pig'sfeet-Unkindest part of all was that myco-author M7.B.) had told me it would beand should be &d that I owe him 9 jarsof this culinary delight-this case has becomewell-known in Harris County as"The Pickled Pigs Feet Case."Criminal defense lawyers are better inracquetball than civil lawyers-at least,they did very well in the "Battle of theCourts" racquetball tournament sponsoredby the UMCA-George Parnlurm won 2ndin the "Men Over 40" group, and 3rd inthe "Mens A" (category of highest expertise)-JacquelineTqytor won 1st in the'Women Over 30"-George and Jacquelineare partners, and their two person firmwon more trophies than any other lawfirm, including the "big" civil law firms.Clyde Williams and Cathy Greene Burnetrare organizing a criminal law institutefor the Hams County Criminal LawyersAssociation for November on representingpeople accused of homicide-H.P.D. homicide detectives will be on thefaculty, lecturmg on how they investigatehomicides . . . No news of events fromJackStrickland president of TarrantCriminal Lawyers Association . . . "Hearsay"has heard several names mentionedas president of the Dallas County CriminalLawyers Association-Please someonegive "Hearsay" a report from Dallas.Valerie Davenport has finished herduties as hriefw attorney for JusticeSam Bars (1st Court of Appeals) to enterprivate practice-Rumor is she prefers apersonal injury fum because she heardhow little cminal defense lawyers make

. . . Criminal defense lawyers KenSpark Appeals, in its in-house C.L.E. program- for Sheriff of Harris County, debated atand Randy Schaffer took a 2-week h~atus Do other Courts of Appeals have in-house the October luncheonof the HarrisCountyto the Civil side of the street, trying a C.L.E. programs? Let "hearsay" know Crimmal Lawyers AssociationBenDwdntfalse arrest case-verdict for $575,000 00. EdPaynter (Ahdene) getsnationalpub- is chairman of the luncheon committee.The 1st and 14th Courts of Appeals licity for winning a "Burning Bed" case In Justice Ross Sears of the 14th Court ofhave moved from theu old locations to Abflene by successfully defending mother Appeals (Houston) has spoken recently tothe South Texas Law Building-nicer and daughter who poured gasoline on the Fort Bend and Galveston Bar Associafacdities,hut criminals are everywhere it sleeping husband ... Ask Ed Gray (Dallas) tionsJohn A. Convery ex-bnefing clerkseems-Maiy Jane Smt, Clerk of the and Randy Taylor (Dallas) the "joy" of for Judge Michael McCormick and coi4th,was mugged in broad dayfight at making an unscheduled landing in a private author of Judge McCormicVs recentarticle on fundamental error on jurythe facility-our good friend is back and plane at a mflitary base ... On their waydoing weU-culprit still at large . . . All to MeAllen for the recent DWI seminar, charges in Volume 15 of St. Mary's LawCourts of Appeals do not have the same the weather forced the unscheduled stopnumber of judges, so comparisons must -greeted by dogs, M.P.'s and other "con-Review has gone to work in Gerry Goldstein'sofficeJudge David Hittner's Sat-be on a "per judge" basis. For the past cerned" persons . .. Speakers at the sem urday morning in Court seminars havetwelve months, the lst Court of Appeals inar included Ed Gray (Dallas), Randy become so successful in Houston thatha come in ist the of cases Taylor (Dallas), I'rez "Scrappy" Holmes they aregoing statewide.disposed of per judge-thanks, in part, to (Longview), Dr. Ken Smith (Houston), Have you gotten a faster verdict? Gaptheir efficient central staff . . . The 1st Kerry FitzGerald (Dallas), and Gary land Mclnnis got a "Not Guilty" on aCourt also rendered the second largest Trichter (Houstontdespite last mlnute marijuana possession charge in 6 minutes.number of decisions, regardless of the size severe scheduling problems, Nance and Let us know what is happening in yourarea. We need moreinput fromareas otherof the Court-promised my source that I Laurie ran a good seminar ... Next Boardwould not say it was second in gross opln. meeting is December 15, 1984, in El Paso. than Houston. Write to us at 202 Travis,ions for the year . . . Bin Hobern is let- Charles CorreN, Repubhcan and John- Suite 208, Houston, Texas 77002, orturing to the staff of the 1st Court of ny Klevenhegan. Democrat, candidates call 7131236-1000 ...1.concerning the testimony about imprintsleft by prosthetic devices, and affmedthe conviction. Unfortunately, the opinionmore or less ignores th; compl&tForensic and judged all the evidence as sufficientto support the conviction.ScienceNewsThe question however remains, is testimonyabout prosthetic device imprintsscientifically reliable enough to be admissibleevidence? In Oklahoma, at leastaccording to this case it seems to he. See:Jones v. State, 660 P.26 634 (Okla. Crim.App. 1983).In an unrelated matter, on December8, 1983, the Georgia Supreme Court affirmedthe convictions of Wayne Williamswhich arose from the celebrated Atlanta\ " murder cases. On November 9, 1984, theIn a relatively recent Oklahoma case, the crime were found in the Defendant's Dallas County Criminal Bar Associationthe defendant, who wore an artificial leg, truck, and hair similar to the deceased's will present a crrminal law institute. Onewas convicted of a rape-murder. As a part hair was also found in the Defendant's of the speakers on the program is Larryof the State's evidence amedical examiner truck. In addition, a fiber was removed Howard who is the Director of thetestified that marks found in the mud frm the victim's fingernail that was sim- Georgia Crime Laboratory.around the vi~tim'~ body were marks that ilar to that which comprised the Defen- Mr. Howard was responsible for colcouldhave been left by someone with an dant's shirt. There was also an inculpa- lecting and testing the scientific and traceartificial leg. tory statement made to a cell mate in evidence that resulted in the convictionsAlso, other circumstantial evidence which the Defendant admitted that he of Mr. Williams. Larry Howard is trulysupported the State's assertion that the raped and killed the victim. one of the most noted authorities onDefendant was at the scene of the mur- On appeal, the Oklahoma appellate fiber evidence in the United States. Any-der. For example, soil samples connect- rejected the Defendant's challenge to the one who ininterested in scientific evidenceing the Defendant with the locatmn of State's evidence, including his complaint should not miss his presentation. INovember 19841VOICE for the Defense 17

Dear Rusty:RE: September issueInresponse to your rhetorical question,"what's wrong . w~th the picture?': myguess is:-Tim Evans has shaved his legs.Thank you.Sincerely,JACK V. STR~CKLANDAttorney at LawFort Worth, TexasDear Mr. Duncan:What's wrong with the cover pictureon the September issue?There are too many pictures of CliffHolmes-two too many!Yours truly,DOUGLAS TINKERTinker, Tor & BrownCorpus Wisti, TexasDear Rusty:I saw with interest our reprint of DavldHershel's article entitled "What we canLearn from the Eaglish Approach to theProblem of Illegally Seized Evidence." Ienclose my reply to Mr. Hershelpublishedin that publimt'in.I would humbly suggest that if theEnglish approach to protection of the Cltizen's+ts to privacy had been as hot asMr. Hershel suggests, we would not haveneeded a revolution to escape the abusesof that despot King George.Sincerely,GERALD H. GOLDSTEINFor Goldstein, Goldstein & HilleySan Antonio, TexasDear Rusty:I thought you might fmd the followingamusing-After a burglary with intent to comrnit18 VOICE for the ~eferrse/November 1984rape trial in Dallas County, the punishmenthearing was before the trial court.The following is a complete transcriptof the evidence and the prosecution'sopening argument:The Court: Call your first witness.The Pmseeutor: State will rest onpunishment.The Defem Counsel: Defense wouldrest.The Court: Let's have the recommendationof the State of Texas.The Prosecutor: Time and fme, allof It.Result-50 years T.D.C.Sincerely yours,RONALD L. GORANSONAttorney at LawDallas, TexasDear Rusty:RE: Death Watch CommitteeEnclosed please find a letter fromRichard Brody of the NAACP Legal Defenseand Education Fund concerningactivity on the Texas Death Row. I amadvised by Mr. Brody that there are theecases of immediate need arising in the verynear future, with particular need, one outof Galveston and one out of Amarillo.1 would appreciate your including thisletter in the next available issue of theVOICE for the Defense.By copy of this letter I am notifyingNance and Laurie that any calls thatcome in in response to the letter shouldbe forwarded to me.Thanks for your help.Sincerely,RICHARD A. ANDERSONAttomev at LawDallas, TexasDear Attorney:The State of Texas houses the secondlargest death row populat~on in the nation.Though most of the inmates undersentence of death have so far found legalcounsel, we have to find new attorneys torepresent capital defendants in their postconvictionappeals. If this trend continues,inmates with valid legal and constitutionalIssues may go to their death becausecounsel was not available to press theirclam In court.Regardless of one's views on capitalpunishment, defense lawyers surely knowthe importance of rasing effectlve appealsin criminal cases. This is even more vitalin capital cases. Indeed, out of all capitalcases affirmed on dzrect appeal, close to60 percent have been reversed by the federalcourts due to error of constitutionalmagnitude. Clearly there are valid issuespresented by all capital defendants whichdeserve the assistance in court of competentappellate counsel. Allowing theseissues to escape judicial scrutiny wlll notonly cost lives, but will result in bad legalprecedent affecting all criminal cases.We therefore ask your assistance involunteering to represent eapltal defendantsas the need arises. With the increasingpace of capital sentencing and theburgeoning death row population, yourassistance as criminal defense lawyers isabsolutely vital.If you wish to volunteer your servicesas counsel or wish to assist in any othercapacity, please contact the Texas CrimmalDefense Lawyers Association as soonas possible.Smcerely,RICHARD BRODYDirector of ResearchCapital Punishment Project

~in.TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION600 West 13th StreetAustin, TX 78701(RETURN POSTAGE GUARANTEED)TEXAS CRIMINAL DEFENSE LAWYERSASSOCIATIONMEMBERSHIP APPLICATION(Pleaseprint or type)NEW MEMBER APPLICATIONRENEWAL APPLICATIONNAME(To appear in Membership Directory)MAILING ADDRESSCITYSTATEZIPBUSINESS TELEPHONE (-1TELECOMMUNICATIONS ACCESSIBILITYYESNO-TELECOMMUNICATIONS PROTOCOL- NJA-BAR CARD NUMBERNAME(As recorded on State Bar Card)TITLE FOR SALUTATION:(Mr.) ( M r s ) ( M s . )BAR DATE: MonthYoarPROFESSIONAL ORGANIZATIONS: (Current)CountyStateNattnnalARE,AS OF SPECIAL INTEREST IN CRIMINALLAW (Certification not required)CERTIFIED CRIMINAL SPECIALIST:YES- NO-RESIDENCE TELEPHONE (-)Havc you ever been disbarred or disciplined by anybar ssoclation, or are you the subject of d~sc~plmaryactmn now pending?Date . .(Signature of Applicant)ENDORSEMENTI, a member of TCDLA, belleve this applicant to be aperson of professional competency, integrity, andgood moral character. The applicant 1s achvely engagedin the defonse of criminal cases. ,Date(Signature of Member)(Print or Type Member's Name)Mail lo:Texas Criminal Defense Lawyers Assooiation600 West 13th StreetSome of the best legal minds.. .in this state already belong to the Texas Criminal DefenseLawyers Association. We believe we have now the best CriminalDefense Bar in the United States. We maintain that levelof excellence by contiiuously seeking out new minds, newenergies. Therefore we want YOU. ..if yourlegal and personalphilosophies are compatible with our purposesandobjectives:To provide an sppropriate state organization representing those.lawyers who are actively engaged in the defense of criminal cases.Toprntect and in= by rule of law those individual rightsguaranteedby theTexas and Federal Constitufions in criminal cases.To resist proposed legislation or roles which would curtail such rightsand to promote sound alternatives.0 To promote educational activities to improve the skills and knnwledgeof lawyers-engaged in the defense of criminal eases.To improve the judicial system and to urge tbeseledionandappoint-ment to the~bench of wellqdified and expeiienced lawyers.To imprnve the correctional system and to seek more effectiverehabilitation opportunities for those convicted of crimes.0 To promote-constant improvement . the administration of criminaljustice. ~. ~ ~ -ADVANTAGES-FOR REGULAR MEMBERSTCDLA Membership prectory-ref&als~to and from criminal defenseIawyers in over;l00 Texascities.0 Outstanding Educatio~nall'rograms-featuring recognized experts onpractical aspects of defense cases. TCDLA and the State Bar annuallypresent many seminars and courses in all parts of the state.TCDLA Brief Bank service.Publications, including the monthly VOICE for the Defense withits"Significant Decisions Report" of important cases decided by thecourt of criminal appeals and federal courts; ~.* Attorney General's Crime Revention-Newsletter. Summariesof latestcourt of criminal appeals cases available to private-practitioners onlythrough TCDLA's group subscription, included in dues.Organizational Voice through which~crirninal defense lawyers canformulate and exoress their oosition on leeislation. court reform.irnportanr dclcnsc cases through amicus curiae activity.Dlscountj and 1:rcc Offerings - lor ouhlications of interest to criminaldefense lawyers.Research service available it a reasonable hourly rate; messengerservice in Capitol area.ELIGIBILITY AND DUESEffective: January 1, 1982Voluntary Sustaining dues IVSI. ........$300.00Skaining dues ISUSI .............. 200.00Dues for members in the firm ofa Wstaining member ISMFI .......... 50.00Members admitted to practice: IMEMI2 years or less ................ 50.002 - 5 years .................. 100.005 or mare years ................ 150.00Affiliate: Persons in careers which contribute todefense of criminal cases. e.g., law professors, areelibible for affiliate membership upon approval ofthe application and receipt of rhe annual dues.Affiliate dues IAFFI ............ 25.00Students: Thore regularly enrolled iria law schoolin Texas are elibible for student membership.Student dues ISDM1 ........;. .. 20.00-TEXASCRIMINALDlZFEEELAVYERSASSWAW

NEW from Knowles Law Book Publishing Inc.TEXAS CRIMINALDEFENSE FORMS ANNOTATEDby W. V. Dunnam, Jr.All needed State and Federal Trial,Appellate and Ancillary formsAnnotated with pertinenttechnical points, all in one bookIncluding SPECIAL TREATISES ontrial of D.W.I. (1984) and DEATH PENALTY cases"No lawyer should tty a D. NI. hereafter wiifm~t this book'sD.N I, treatise in front of him and none should be allowed totty a death penalty case without the death penalty treatise."Charles M. McDonaldFormer President of TCDLA andThe Texas Assactatlon of Certified Crimmal Law Speclallsts"Most of the forms in the bookhave annorations which amountto as complete and up to date abrief on the subject as you canfind anywhere. The book willreduce the time expended incriminal matters at least 75%"W.T. PhillipsFormer Judge, Texar Court ofCriminal Appeals"This book will save the FederalPractitioner countless hours ofpretrial. trial andappellate work."Frank D. McCownFormer US. Attorney.Northern Dlst. Texas"I believe full use of this bookby the defense will result in areversal of any conviction hadin the vast majority of cases."Ward CmeyFarmer D.A., Ellis, Co.Ch~ef Felony Prosecutor McLennanCo.and Tarrant Co. Crm. Ct. No. OneOrder your copy TODAY!! SAVE 15% of the Purchase Price when you send your check with your order!!!Please send me copies of DEFENSE FORMS Any supplementation issued within six (61 months of@ $1 25.00 each . . .. ... .. .. . $purchase will be sent at no charge. My order includesupkeep service, such as supplements, revisions, splitPlus $6.41 tax per book . . . .. . . . .$volumes, or additional mmpanion or related volumes.Total . . . . .. .. .. . .. . .. .. .. . $At any time. I will be free to cancel or change my(prms subpt toGhange w~thout notice)Order for upkeep services.(each order on 30-day approval)NameSend check to:KNOWLES LAW BOOK PUBLISHING, INC.Street or box P.O. Box 18069. Fort Worth, Texas 76118(817) 282-6764City, state, zip