OCTOBER D87 - Voice For The Defense Online

OCTOBER D87

Presentence Investiaation Reoorts,Probation Officers 6nd "~inhn~".in the Federal Systemby F. R. "Buck" Files, Jr.IntroductionPurpose of the ArlieleIn Tyler-a city with a population of approximately80,000-there are some 400individuals licensed to practice law and lotsof courts in the Smith County Courthousein which they can practice: A Court ofAppeals, four District Courts, two CountyCourts-at-Law and a County Court.Only 200 yards to the west of the CountyCourthouse is the Federal Building wherethree United States District Judges, twoMagistrates and a Bankruptcy Judge areheadquartered. Yet, only a few of thelawyers who are so very comfortable in thetrials of State criminal cases appear withany regularity in Federal criminal matters.Wade French-Chief United States ProbationOfficer for the Eastern District ofTexas-and I have visited on a number ofoccasions about the problems which lawyers,who are themselves unfamiliar withthe Federal system, face when they comeover to represent defendants charged withFederal offenses. We decided to combine,conspire, confederate and scheme in orderto put something together for the Texaslawyer who spends most of his time in theCounty Courthouse and who comes to theFederal Courthouse on an irregular basis.This article has to do with the importanceof the Presentence InvestigationReport (especially as we begin our "newera" in the Federal criminal justicesystem), the problems which can arise atsentencing and the help which a UnitedStates Probation Officer can give to thedefendant's lawyer as he represents thedefendant.Mr. French has prepared a paper havingto do with the relationship between thedefense lawyer and the United States ProbationOfficer.It is our hope that these articles-takenF. R. ( ~ ~ ~ i kl jr. ~ j has ~ bee,, , in theprivarepmcrice of law in Tylersince 1970and is 1uith thejirm of Bain, Files, Allenand Caldwell, P. C. Hispracrice is limiredta the represenrafion of defndants in criminaland civil rights matters. Before enteringprivate practice, he prosecured anddefended rnilimr~ courts-martin1 for theU.S. Maritae Corps (before rhey had aJAG) and served as a Fifst Assistant CpiminalDistrict Attorney iti Smith Coruzty.Cerrifed as a criminal law specialistsince 1975 and a charter member of theTeus Criminal Defense Lawyers Association,he is a fiepent lechtrer at CLEcourses sponsored by the State Bar ofTe.~as and the WLP.together-willyou.be of some assistance toThe Reality of Criminal PracticeIn the Federal SystemFor every John DeLorean and his entrapmentdefense, there are thousands ofJohn Snerds in Federal criminal cases whoare simply caught in the. trap. As JudgeRives wrote in Smith v. Unifed Stales,". . . every lawyer engaged in defendingcriminal cases knows that often a findingof guilt is a foregone conclusion, and thatthe real issue centers about the severity ofthe punishment. "'For these John Snerds, "winning" hasbeen getting probation instead of confinement,being permitted to surrender ratherthan being transported in chains to the confinementfacility, getting a shorter sentencerather than a longer sentence, or "doingtime" in a more comfortable rather thana less comfortable facility.If the defendant is to win, his lawyermust-at the earliest time-heein " to workwith the probation officer assigned to thecase, We find this admonition in Moore'sFederal Practice:"For the overwhelming majority ofdefendants in Federal courts, thenature of the punishment is the onlyissue in the case. In view of the enormityof the consequences to the defendant,it is sometimes shocking tosee the perfunctory manner in whichdefense counsel discharge theirsentencing function. The investigationand preparation of mitigatingfactors, both in terms of the facts ofthe offense and of the defendant'spersonal history, call for no lessthoroughness and resourcefulnessthan the preparation of a trial. Onecommentator has opined that anythingshoi? of this amounts to ineffectiveassistance of connsel. " (Enphasisaddedj2October 1987 1 VOZCEfor the Defense 5

whom the officer might contact, but alsoany plan which the defendant might havefor future conduct (i.e., making restitution).If the information is obviouslyproper for the sentencing judge's consideration,it will be included; if there isa disagreement over the information, it canstill be offered by the defendant.My own conclusion is simple: The PresentenceInvestigation Report furnished tothe trial judge carries the imprimatur of approvalof the Chief Probation Officer ofthe District in which the Report was prepared.If you can possibly get the informationwhich you want the judge to considerincluded in that Report, you aredramatically better off than if you preparea defendant's Presentence InvestigationReport.The Ex Parte Co~tferenceIt should also be understood that the appellatecourts have held that United StatesProbation Officers can have exparte conferenceswith the sentencing judge. InUnited States v. Houston, the 5th Circuitwrote that ''It is not improper for the districtjudgc k, hold prcsclitence confcrcncc..;w~th 3 nrobstion staff.""' In llnitcd Stdcsv. ~o&ales, the 9th Circuit said that"When a probation officer is preparing apresentence report, he is acting as an 'armof the Court' and this permits ex parkcommunication.""What the sentencing judge learns fromthe United States Probation Officer is notlimited to what is included in the PresentenceInvestigation Report or what he istold in open court.The Notification ReqrrirenterrtTitle I8 U.S.C. Sec. 3552(d) givesdefendants' lawyers a blessing with thenew notification requirement:"The court shall assure that a reportfiled pursuant to this section is disclosedto the defendant, the counselfor the defendant, and the attorneyfor the Government at least tor daysprror to the date set for sentencing,unless the minimum period is waivedby the defendant." (Emphasisadded)Now we will have plenty of time to lookat the Presentence Investigation Report, goover it with the defendant and prepare forthe sentencmg proceeding.We will have an affirmative duty-as Isee it-to make a written response addressedto the United States Probation Officerwho prepared the Report detailingwhat, if anything, we find to beerroneous.We should make this response for tworeasons: (1) If we are right in our complaint,the United States Probation Officerwill have the opportunity to correct thematter about which we have complained;and, (2) If we do not make a written response,we might well be ineffective in theassistance which we give to the defendant.[Note: As recently as August 4, 1987, the3rd Circuit was answering a Petition forWrit of Habeas Corpus in which the Petitionerwas alleging, among other things,that his attorney had failed to insure thepreparation of an accurate Presentence InvestigationRepo~t;]~~A Response to a Proble~n ReportIf you are furnished with a PresentenceInvestieation Renort which vou believe to&.contain materially inaccurate information,I would suggest that you prepare a Memorandumto the United States Probation Officerwho prepared the Report whichshould include at least some of this nonaccusatorylanguage:1. I have reviewed the PresentenceInvestigation Report which you havefurnished to me. I have also had thedefendant read it, and we have discussedit.2. We believe that the following informationcontained in the Report isinaccurate: (set out what is inaccurate)3. We know that you would nothave intentionally included any materiallyfalse information in this Report;however, we are concernedthat the sentencing judge could ormight rely on this information in imposingsentence. This would not befair to the defendant.4. We would, therefore, request thatwe meet at the earliest possible timein order to talk about this.Hand-carry this to the United States ProbationOfficer in order that you do not loseprecious time waiting for the mail to bedelivered. If the United States ProbationOfficer agrees with your complaints, donot hesitate to ask that the Report be rewritten.The importance of a "clean" PresentencelnvestigationReport is seen in thelanguage of the 1983 Advisory Committeereport concerning Rule 32(c)(3)(D):"As noted above, the Bureau ofPrisons and the Parole Commissionmake a substantial use of the presentenceinvestigation report. Undercurrent practice, this can result inreliance upon assertions of fact in thereport in the making of critical determinationsas to custody or parole.For example, it is possible that theBureau or Commission, in thecourse of reaching a decision on suchmatters as institution assignment,eligibility for progratns, or computationof salient factors, will placegreat reliance upon factual assertionsin the report which are in factrotmre and ivhiclt remained zmchal-Ienged at the time of sentencing becausedefendant or his counseldeemed the error ~rrtirnportartt in thesentencing conte~t . . ." (Emphasisadded)A Written Objectionto the Presentence Investigation ReportIf, despite all your efforts to the contraty,the Presentence Investigation Reportstill contains inaccuracies which you believeto be prejudicial to your defendant(either now or when he goes into confinementor both), I would suggest a writtenobjection which should contain at leastsome of the following:The Defendant and his lawyer havecarefully reviewed the Presentence InvestigationReport and would respectfully suggestthat it contains misinformation whichis materially inaccurate." Some of the informationcontained in the Report does notbear an indicia of reliability.'The Defendanthas a right not to be sentenced on thebasis of invalid inf~rmation.'~The matter complained of is as follows:(Set out in detail in order that the sen-8 VOICE for the Defense I October 1987

tencing judge does not have to go back andforth to find the offensive matter.)The Defendant requests the followingrelief:a. That a hearing be had in order thatevidencemight be introduced to rebutthis misinformation;h. That this Honorable Court not considerthe matter complained of forany purpose; and,c. That the matter complained of he excisedfrom the Presentence InvestigationReport.judge can 'exercise a wide discretion in thesources and types of evidence' he uses toassist him in determining the kind and extentof punishment to he impo~ed."'~In United States v. Jackson, the 5th Circuitwrote that "The defendant must begiven the chance to inform the Court of anymitigating circumstances, hut we see liUleadvantage to be gained by having otherstdfy for him at sentencing." (Emphasisadded)''In Unifed States v. Sattefield. the 11thCircuit slates that "Although a non-capitaldefendant does not have a constitutionalright to call and cross-examine witnessesto rebut information contained in the presentence report (citing Ashley), Rule32(c)(3)(A) gives him the right to commenton the report and correct any alleged factualinaccuracies contained the~in."'~In United Stares v. Papajohn, the 8thCircuit-again foreclosing the defendantfrom having au evidentiary hearing-wrotethat "Due urocess does not mandate anBecause of the amendment to Rule 35,tb is the only opportunity that this Defendantwill have to present these objectionsto this Honorable Court. Without the opportunity€0 present evidence, the Defendantrisks being sentenced on the basis ofmisinformation which would deny him dueprocess of law.Because the Presentence InvestigationReport will follow the Defendant to hisplace of confinement, the Defendant willhe prejudiced by the misinformation withinthat Report as it will be used by the Bureauof Prisons to determine his classification,his eligibility to participate in programswithin the institution and his eligibility forfurloughs.The Presentence InvestigationReport At the SentencingProceedingThe Defen6anf's Oppottunify to CommentOn the Presentence Investigafim ReportRule 32(c)(3)(A) concludes with thissentence:"The court shall afford the defendantand the defendant's counsel anopportunity to commenl on the reportand, in the discretiot~ of the court,to introduce testimony or other informationrelating to any factual iuaccuracy.''(Emphasis added)In United Stafes v. Ashley, the 5th Circuitdetermined that ". . . a sentencingOctober 1987 1 VOICE for the Defense 9

evidentiary hearing to establish the accuracyof this or other information containedin apresentence report before it canbe considered by the trial court."'9The lesson should be clear: The defendantand his lawyer will be given the opportunityto speak-but little else. Thereis no trial on the issue of punishment asthereis inTexas courts under Article 37.07VACCP. Even though the Federal Rules ofEvidence do not apply to sentencing proceedings[FRE 1101(d)(3)], a written offerof proof as contemplated by FRE 103(a)(2) would show on appeal what youwere trying to get before the sentencingjudge and this may well be the only wayto get the information into the recordbecause of the amendment to Rule 35.The Court's DutySince 1983, Rule 32(c)(3)(D) has providedfor the following procedure to be followedat the sentencing proceeding:"If the comments of the defendantand the defendant's counsel or testimonyor other information introducedby them allege any factualinaccuracy in the presentence investigationreport or the summary ofthe report or part thereof, the Courtshall, as to each matter controverted,make (i) a finding as to the allegation,or (ii) a determination that nosuch fmding is necessary because thematter controverted will not be takeninto account in sentencing. A writtenrecord of such findings and determinationsshall he appended toand accompany any copy of the presentenceinvestigation report thereaftermade available to the Bureauof Prisons or the Parole Commission."The latest amendment to this sectionsimply deletes reference to the ParoleCommission. Title 18 U.S.C. Sec. 3583@)requires that, beginning on Noven~ber I,1987, "The court, at time of sentencing,shall state in open court the reasons for itsimposition of the particular sentence . . ."Rule 32(c)(3)(D) has been strictly constrnedby the Courts of Appeal, and it issafe to predict that 3553(b) only reinforcesthe requirement of the Rule. As we shallsee in the next topic, a failure to complywith the Rule will ordinarily result in avacating of the sentence imposed.This rule gives the sentencing judge aneasy out: All he has to do is choose (ii) insteadof (i), and this "cleans up therecord" as far as the appellate courts areconcerned.Problems at theSentencing ProceedingAlthough the sentencing judge did not requirethe holding of a heari?g and did notrule on the request to3trike the informationfrom the Presentence InvestigationReport, the5th Circuit found that he compliedwith the Rule by stating, afersentence was pronounced, that he had notconsidered the matters complained of inpronouncing sentence.]22Failure of the Sentencing JudgeThe Prosecution Sentencingto Comply With Rule 32(c)(3)(D)Memorandum andIn United States v. Lnwal, the defen-Rule 32(c)(3)(D)dant's attorney objected to the amount of In United States v. Manotas-Mejia, thethe victim's loss as it was projected in the United States Attorney filed a "Sentenc-Presentence Investigation Report: The ing Memorandum" with the sentencingReport said $100,000; the defendant judge. In the Memorandum was a suggessuggestedthat $1,200 was accurate. The tion that the defendant had delivered somesentencing judge was ambiguous in his 15 kilos of cocaine for which he had notresponse to the objection andmade no find- been charged. This allegation was not inings regarding the accuracy of the infor- the Presentence Investigation Report. Themation contained in the Presentence Inves- defendant objected to this allegation, andtigation Report. Because the sentencing the sentencing judge did not address thejndge refused to comply with Rule 32(c) ohjection in any way. Had the allegation(3)(D), the 5th Circuit vacated the sentence been contained in the Presentence Investiandremanded the case for re-~entencing.~~ gation Report, the sentencing judge clear-In UnitedStates v. Velasquez, the defen- ly would have had to answer the objection.dant's lawyer objected to the label "no- On appeal, the 5th Circuit found that thetorious alien smuggler" used in the Pre- fact that the information appeared in thesentence Investigation Report to describe Sentencing Memorandum rather than inthe defendant. The sentencing judge made the Presentence Investigation Report in nono response to the defendant's ohjection to way diminished the dangers against whichthis. On appeal, the 5th Circuit wrote: Rule 32(c)(3)(D) guards. For this reason,"Once Velasquez met his burden under the the case was remanded for re-sentencing.23rule, the Court was required to make either In United States v. Salas, the 1 lth Cirafinding as to the allegation or a statement cuit was confronted with almost the samethat the uncontroverted matter would not situation as in Manotas-Mejia. There,be con~idered."~~however, the sentencing judge hadIn United States v. Castillo-Roman, the "cleaned up the record" at a Rule 35 heardefendantobjected to language in the Pre- ing, and the case was affirmed.2'sentence Investigation Report which indi- Manotns-Mejia and Salns simply incatedthat he was more culpable than his dicate the popularity of the use of theco-conspirators (He was alleged to have Prosecution's Sentencmg Memorandum.been the leader of a group known as "Las These cases were decided on August 4thTejas."). In this case, the defendant's and loth, respectively.lawyer did it right. In the languaae of the5th circuit's opinion: Tastillo fd& a motionto redact unfounded allegations con-tained in the nresentence reoort nursuant& .to Federal dule of Criminal Procedure32(c)(3)(D), requesting that the Distr~ctCourt: (1) Hold a hearing in which thegovernment would he required to provethat he was the 'Las Tejas' leader; (2) Notrely on that information when imposing asentence; and, (3) Order that the informationhe stricken from his report." [Note:The Late Requestfor CorztinuanceIn United States v. Taylor, the defendantcomplained that he was wrongfully denieda continuance to enable him to gathermaterials to influence the sentencing court.In Tnylor, the defendant's claim was rejectedbecause he gave no indication-attrial or on appeal-as to what evidence hewould have produced had be been granted10 VOICE for the Defense / October 1987

his continua~ce.~~The Limiting of Post-SentenceRelief For a.Rule 32 ViolalionAs the 11th Circuit points out in UnitedStales v. Peloso, there have been four proceduresfor pursuing a Rule 32 violation:A direct appeal; a Rule 35 Motion to CorrectSentence; a Section 2255 Habeas CorpusPetition; and, a Section 2241 HabeasCorpus Petition (directed at the ParoleCommission for using false informati~n).~~After November 1, 1987, there will beno Parole Commission and, therefore, noSection 2241 relief. Neither will there beany Motion to Correct under Rule 35. Thedefendant will be left with an ordinary appealor a 2255 Habeas Corpus Petition ashis only avenues for complaining about aRule 32 violation.In United States v. Espinoza, the sen-tencing judge stated orally-after pronouncingsentence-that he had to do sobecause the defendant's "recordof threatsand assaults was bad." The defendant fileda motion under Rule 35 in order that hemight ". . . present evidence to rebut thecourt's statement." The sentencing judgerefused to permit any rebuttal of his statedfactual basis of the sentence. On appeal,the 5th Circuit vacated and remanded forre-sentencing, holding that "The action ofthe court below, in refusing to permitrebuttal of the stated factual basis for thesentence, is tantamount to an abuse ofdiscretion and is inconsistent with the needfor enlightened senten~ing."~'In our "new era," there is no real solutionfor an Espirtozu problem. Doing awaywith the Rule 35(a) Motion to Correctprecludes the defendant's lawyer from"making a record" and the sentencingjudge from correcting an illegally imposedsentence.The United States ProbationOfficer as a Resource PersonUnited States Probation Officers can domore to help a defense lawyer than justprepare fair and accurate PresentenceInvestigation Reports. They can answerquestions -and they will if you will justask them.In every criminal case, you should askyour United States Probation Officer atleast these questions:1. What do the new Federal SentencingGuidelines do to my defendant?pe em ember that Rule 32(c)(2)@) putthe burden on the probation officerto advise the sentencing judge as to"the kinds of sentence and the sentencingrange suggested for such acategory of offense committed bysuch a category of defendant as setforth in the guidelines issued by theSentencing Commission pursuant to28 U.S.C. 994(a)(l);."]2. What are the judges doing in this typecase?[It helps to know what the judges inthe district have been doing in likecases. If your client happens to be abanker who is charged with some"white collar crime," it will behelpful to know, early on, that everybanker charged with such an offenseduring the past five years has beensentenced to "hard time."]3. Ifmy client is sentenced to co~tfifinemerit,approximately how rnrrclt tintewill he act~ially sen&??[In the Federal system, you cannotassume that your client will serve aslittle time as he would on a comparablestate sentence. With the newFederal Sentencing Guidelines, thisquestion must be asked if you are goingto make any predictions for yourdefendant.]4. Where is the bestplacefor my clientto "do his tinte?"[Sometimes the best thing that youcan do for your client is to get arecommendation from the sentencingjudge as to the place of the confinement.While this recommendation isnot binding, it is followed some 85%of the time by the Bureau of Prisons.(The US. Department of Justice,Federal Bureau of Prisons, has apublication called Facilities. A copymay be obtained by writing to thePublic Information Office, FederalBureau of Prisons, 320 First StreetNW., Washington, D.C. 20534.) Itis obvious that some places of confinementare preferable to others;e.g., "Club Fed" at Big Spring mayhe -- over-named. - -- but it is certainlv betterthan El Reno or La Tuna.]5. Will my client be permitted tobers "the lady in the Gucci dress"who was taken to jail immediatelyafter sentence was pronounced. Sheobviously had not been prepared forthis. Defendants who are permittedto surrender often go to betterfacilities (a Federal Prison Camp)and get extra time credit. A requestfor voluntary surrender should alwaysbe made in appropriate cases.]Being of Assistance inCrisis SitrralionsDefendants can have problems after theyleave the sentencing court. The UnitedStates Probation Officer who prepared thepresentence Investigation Report is theperson who can give the most assistancewhen these crises arise; e.g.,1. Death in the family of the defendant-Undercertain circumstances,a Federal prisoner may be releasedin order to attend the funeral of animmediate family member. TheUnited States Probation Officer whodid the Presentence InvestigationReport is the person best suited tocom~uunicate with the authorities atthe confinement facility.2. The suicide risk-Some individualshave more difficulty than others inadjusting to a confinement facility.The local United States Probation Officer,having had contact with the defendantprior to sentencing, can beof great assistance to the defendant'scaseworker at the confinement facility.[As a personal example, I canremember one specific occasionwhere I had reason to be concernedthat my client was a suicide risk.Within 30 minutes of my bringingthis to the attention of our local ChiefUnited States Probation Officer, apsychologist was visiting with myclient at the Federal Prison Camp atEl Reno.]VOICE ADVERT1 SERSCDLP Federal Materials. ..........7surrend>r? CDLP Publications ................9[In the Tyler Div~sion of the Eastern CDLP Seminars.. .:. ............-29District of Texas, everyone remem- National Legal Services .........-. 35October 1987 1 VOICE for the Defense 11

The Defense AttorneylUSPO Relationshipby Wade E. French, Chief Uniied States Probabon Officer, Eastern Disfrict of TexasFor a defendant to receive the full benefitof his attorney's services, it is importantthat a cooperative relationship exist betweenthe defense attorney and the US.Probation Officer preparing the defendant'spresentence report. A breakdown inthis relationship generally stems from alack of understanding or appreciation ofeach participant's role in the federalsentencing process. As the Federal CourtSystem moves toward the implementationof the federal sentencing guidelines rnandatedby the Con~prehensive Crime ControlAct of 1984, this relationship willbecome even more critical. The purposeof this article is to identify some of the keyelements of this relationship and identifythose areas where the defense attorney andthe US. Probation Officer can work togethercooperatively to insure that theCourt receives a fair and accurate presentencereport. It is further an aim of thisarticle to inform defense attorneys that theUS. Probation Officers' involvement witha case extends beyond the sentencing of thedefendant, including future decisions regardingfurlough, parole and even Presidentialpardons.Defense attorneys frequently approachthe US. Probation Officer with the viewthat he or she is simply an extension of theUS Attorney's office or an extension ofan executive branch investigative agency,such as the FBI, DEA, IRS, etc. This perceptionis understandable in that eaehworks for fhe "government." Because theUS Attorney's Office as well as the executivebranch investigative agencies aremajor sources of information, there is frequentcontact between the U.S. ProbationOfficer and these agencies. However, U.S.Probation Officers understand and maintaina separate professional identity. Theprofessional as well as academic trainingemphasizes they are members of the judiciaryand, as such, their functions are differentfrom those of the executive branchof government. They wellunderstand theirmajor role in the sentencing process is todevelop a presentence report that accuratelyrepresents the illegal conduct of theLWade E. French has been a Federal ProbationOfjicer since 1973 and the ChiefUnited States Probation Ofjicer for theEasteru District of Texas since 1980. Heis also an instrrrctor at the Vrtiversify ofTexas at Tyler, in the Departmatt of SocialS&tces. Previously he has been in p~ivatepractice as a cozrriselor and has been (Imining cortsrrltant at the Texas Departmentof Mental Retardatiort and MentalHealth, Beauntont State Center.He obtained his undergraduate degreein Sociology and Emno~nics im 1969 atSam Houston State Universify and hisMmr of Science Degree in Crirnirzologywith a specialv in Probation, Parole andCorre~tional AdntirtistratiOn in 1973 atSam Houston State University Institcrte ofCoutemporary Corrections arid the BehavioralScience.Mr, French and his wife, Mariheth, whois u certified Special Education Teacher,have two children.defendant, describes significant developmentalfeatures of his background, andprovides to the Court a recommendationfor case dispositions that are fair to allparties concerned and is in keeping withacceptable correctional practices.Rule 32(c)(2) of the Federal Rules ofCriminal Procedure identify what basic informationis to be included in the pre-sentence report. The Presentence InvestigationReport, a publication prepared anddistributed by the Probation Division of theAdministrative Office of the United StatesCourts, provides the official format to beused by US. Probation Officers in preparingpresentence reports. In addition,this publication gives probation officersdetailed guidance in terms of how to evaluatethe relevancy of information gatheredduring the course of the investigation.The prosecutiot~ version of the offensesection of the presentence report and nondisclosableinformation provided for underRule 32(c)3(a) frequently are areas ofmajor misunderstandmg between defenseattorneys and U.S. Probation Officers.Under the heading, Prosecution Version,the US. Probation Officer is required toprovide a comprehensive picture of thedefendant's criminal conduct (see ThePreserttence Investigation Report [P.81).Furthermore, Rule 32(c)(2)@) providesthat the PSI shall include "a statement ofthe circumstances of the offense and circumstancesaffecting the defendant's behavior."This usually includes describingalleged criminal conduct for which thedefendant has not been convicted or insome cases even charged. The basis for theCourt considering this information stemsfrom Title 18, USC, Section 3577, whichstates:"No lintitation shall be placed on theinformation concerning the background,character, and conduct of aperson convicted of an offense whicha Court of the United States may receiveand consider for the purposeof imposing an appropriate sentence."This particular issue has been consideredon appeal a number of times and the Courtshave generally given a broad interpretationas to the intent of the statute (see U.S. vs.Bowdach, 561 Fed.2d. 1160, 5th Circuit1977; Billiteri vs. U.S. Board of Parole,541 Fed.2d 938, 2nd Circuit, 1976; andU.S. vs. Dortiel Lee, 818 Fed.2d 1052,Znd12 VOICE for the ~efense / October 1987

Effective Prosecution ofSex Offenses Against Childrenby George E. West I1Part IIntroductionSexual abuse of children is a rapidlygrowing area of social concern. It has beencalled the "last remaining component ofthe maltreatment syndrome in children yetto be faced head on."' An estimated rangeof 200,000 to 500,000 sex abuse casesoccur a year.2 It has also been estimatedthat the reported cases of sexual attack onchildren have only uncovered the tip of thei~eberg.~ Since exposure and introductionof a child to adult sexuality is regarded assomething from which children should besafeguarded, then we as members of thelegal profession should seek ways to protectthem. One way to protect the childrenis through "effective prosecution" of sexoffense crimes against children.The effective prosecution of sex offensesagainst children requires a "special" balancingof the interest of society, the rightsof the victim, and the rights of the defendant.The primary interest and rightsinvolved are the interest of society in protectingthe child from physical and emotionalharm; the rights of a child to beprotected through the legal system; and theright of a defendant to a fair and impartialtrial. Special balancing of these rights andinterest is needed in sex offense casesagainst children more so than any other offensebecause of the nature of the offense,the age and development of the child, andthe inherent problems in the Criminal JusticeSystem when prosecuting theoffender.The purpose of this article is to enlightenboth the bench and bar as to the uniqueproblems posed by sex offenses againstchildren with the hope that the informationcontained herein will provide assistance inthe proper balancing of the various rightsand interest involved. To achieve this purposethe article will discuss the type of offenderthat commits sex offenses againstchildren, the effect that the offense has onthe victim, the effect the criminal justicesystem bas on the victim, the offenses in-volved, and the manner of proving theoffense.The Sex OffendersSex offenders of children may fall intoone of two categories. One category is theprimaly category and theother is a residualcategory. Those who fall in the former arecalled pedophiles and those in the latternon-pedophiles.PedophilesThe primary offenders responsible forthe sexual exploitation of children inAmerica are pedophile^.^ Generally speaking,a pedophile is a person who is predisposedto sexually engage children as aprimary means for sexual gratification orwho sexually turns to them as a result ofconflicts or problems in their adult relationship~.~Clinically speaking, a pedophileis a person who commits the act or fantasyof engaging in sexual activity withprepubertal children as an exclusive orpreferred method of achieving sexual ex-~itement.~ His sexual involvement mayconstitute a persistent pattern (a fixation)or a new activity or change (a regression)in his sexual orientations or life-styles.Fixation is defined as "a temporary orpermanent arrestment of psychologicalmaturation resulting from unresolved formativeissues which persist and underliethe organization of subsequent phases ofdevelopment."' A fixated child offenderis a person who has from adolescence beensexually attracted primarily or exclusivelyto significantly younger people and this attractionhas persisted throughout his liferegardless of what other sexual experienceshe has bad. "Sexual involvement withpeerage or older person, where this has occurred,has been situational in nature andhas never replaced the primary sexual attractionto and preference for underagedpersons.If sexual involvement with another adultdoes occur it is usually a matter of respondingto sexual advancement by the partnerunder a given set of circumstances. Despitethis type of situational encounter, thepedophile's primary sexual attraction is forunderaged persons. When engaging in sexualactivity with a child, the fixatedpedophile does not feel guilt, shame, orremorse.9 His attraction for children sur-' nasses normal rationale bounds and orecedesto a realm of uncontrollable fantasies.If given the option of sex with achild or sex with an adult the fixedpedophile will choose the child. His lackof preference for adults as sexual partnersmay be because of a fear of being sexuallyinferior or inadequate, or because of a fearof embarrassment or rejection. Regardlessof the reason(s) that may be assigned asthe cause of the fixed pedophile's behavior,the result is that his sexual activity withadults is not as emotionally gratifying ashis sexual activity with underaged people.The fixed offender's immature orientationtowards children does not appear confinedto his sexual life. Psychologically the pedophile'spredisposition affects his whole life.He appears to be a marginally inadequateindividual who feels compelled to interactsexually with children because of the demandsof life." Rather than to confront hiscrisis head on the fixated pedophile reactsby a repeated pattern of sexual contactswith children.1' His crisis starts internallyand his resolution ends externally. Thatresolution will invariably lead up to an illtimedsexual affair with a child.Another type of pedoph~le IS the regressivepedophile. "Regression is defined asa temporary or permanent appearance ofprimitive behavior after a more matureform of expression has been attained, regardlessof whether the immature behaviorwas actually manifested earlier in an individualdevel~pment."'~ A regressivepedophile, unlike a fixed pedophile, is aperson who "originally" prefers peer oradult partners for sexual gratification.13October 1987 1 VOICE for the Defense 15

However, if a crisis enters this offender's morally or legally wrong. "Cognitive dislifehe will focus his attention to underaged sonance'' is a process in which a personindividuals. The crisis may be social, sex- justifies his or her behavior by changingual, marital, etc., or a comhmation of such the meaning of it i.e., "I am just doing itfactors. The regressed offender commits for sex education etc." The scope of thistheoffense as an impulsive and desperate type of rationalization process isas broadact that is svmntomatic of ahilnre to cooe m as limited as the individual offenderswith specikc iife stresses.l*The regressed offender does not exhibitany predominant sexual attraction tosignificantly younger people during hissexual development, but instead focus primarilyor exclusively on peer-age or olderpeople.Is Typically this offender is marriedand if stresses threaten the relationshiphe becomes sexually active with achild. As a result of his behavior, theregressed offender may feel guilt, shame,or remorse, but these feelings occur afterthe fact.16 At the time of his sexual involvement,the regressed offender is usuallyin a state of depression audlor a stateof partial disassociation. He does not careabout what he is doing and who he is hurting.During this period of regressive sexualbehavior, the offenders sexual encounterswith adults usually coexist with his sexualencounters with children.There is no profile of how someone hecomesa sex offender, although two thingshave to occur for a man to commit a sexualoffense against a child. First, he mustbe sexually aroused by or attracted to achild. This attraction is abnormal for adultmales. The origin of this inappropriate attractionmay he accidental. An accidentalattraction may start by a man masturbatingand happens to think of a child or a childsitting on a father's lap and he gets an erection.I7Then through the process of conditioningthe sexual attraction to the child isability to make self serving excuses.The fixed and regressive pedophile havetwo general means of effectuating theirdesire to engage in sexual contact with achild. Those means are inducement andforce.ls Inducement occurs when the offenderapplies some type of psychologicalpressure on the child either through "enticement",in which he attempts to indoctrinatethe child into sexuality throughpersuasion, or "entrapment", in which hetakes advantage of having put the child in(I situation in which he or she feels indebtedor obligation.19 The inducement type pedophilewill not normally use physical forcebut instead resorts to efforts to persuadehis victim to cooperate, often times bybribing or rewarding the child with attention,affection, g,ifts and "special" fun.This always entads misrepresentation ofmoral standards, either verbally or implicitly.la The aim of the inducement-typepedophileis to gain sexual control of thechild by manipulation of the child and developinga willing or consensual relationship.The inducement method has a higherprobability of success in cases where thevictim and the offender know each otherprior to the sexual involvement than wherethe victim and offender are stranger^.^'When the offender knows the victim, (suchas a father and daughter), sexual involvementmay continue over a period of time.The more adept the offender is at "enticelearned.The offender then starts inten- ment" andlor "entrapment", the lesstionally thinking of or fantasizing aboutchildren or a particular child while masturbatingand ejaculating. His conditionedresponse may occur many times until itbecomes a pattern which he believes hecannot control. As a result, the offenderlikely he will resort to force to inducecompliance.The type of offender who normally usesforce as a means to achieve his desire tohave sexual contact with a child may becalled a force-type-pedophile." The methbecomescompulsive in his attraction for ods used by the force-type-pedophile area child."intimidation", in which he exploits theOnce the offender establishes this inap- child's relative helplessness, naivete, andpropriate arousal pattern then a second awe of adults through threats or harm, orcondition must occur for him to committhe sexual offense, namely, the offendermust act on his sexual desire. The offenderjustifies his acts through a psychologicalprocess known as "cognitive dissonance"even though he knows what he is doing is"physical aggression", in which he attacksand physically overpowers his victim. Theforce-type-pedophile will quite often applyboth intimidation and physical aggressionto satisfy his sexual desire.The force-type-pedophile may also hesubdivided into two groups dependingupon the nature of his assault, namely: (1)the "exploitive assault", in which threator force is used to overcome the child'sresistance, and (2) the "sadistic assault",in which the force becomes eroticized.The "exploitive pedophile" employsintimidation, manipulation, threats, andphysical force to overcome the resistanceon the part of the child. If physical forceis used, it is usually employed not with theintent to deliberately hurt the child butto overpower the child. The exploitiveoffender will normally use only force ifnecessary to gain submission by the child.He generally does not attempt to engagethe child in any emotional way but insteaduses the child as a sexual outlet. His orientationtowards the child appears to be basedon his need for power and control.Another subdivision of the force-typepedophile,is the "sadistic ped~phile".~~The sadistic pedophile derives pleasurefrom dominating, mistreating or hurtingthe child. The infliction of physical orpsychological pain upon thc victim servesthe sadistic oud~rnhilc's erotic nccds. Thevictim is g&erGly beaten, choked, tortored,and sexually assaulted. Unlike theexploitive pedophile, the sadistic pedophileuses more force in the assault than wouldbe necessary to overpower the victim. Hisintention is to completely dominate andlorhumiliate the child. In the extreme case hemay evenmurder thechild. The acts of thesadistic pedophile are not impulsive; typicallythe assault has been planned out andfantasizedabout for some time prior to itscommission. Sex for the purpose of sex isseldom the primary motivating force behindthe sadistic pedophile's act. Hisprimary motivating force is of some deepseeded form of anger and power that hemanifests through violence and sex.The classification and subclassificationof pedophiles has been based upon theirrelative attraction to children for sexualgratification, the manner used in seekingfulfillment, and the degree used to obtainfulfillment.Non-PedophilesAnother type of child sex offender isknown as "nonpedophile". Non-pedophilesform the residual category of sex offenderswho do not possess predominantpedophilic behavior patterns. The pre-16 VOICE for fhe Defense I October 1987

dominate behavior pattern may comeunder a variety of classifications. The nonpedophileoffender may be schizophrenic,or suicidal, or alcohol dependent, etc.Numerous factors may cause this type ofoffender to commit sexual acts with children.Unlike the pedophile, this offenderdoes not commit the act of or fantasy ofengaging in sexual activity with prepubertalchildren as an exclusive (fixation) orpreferred (regression) method of achievingsexual excitement. The act is an isolatedsexual act.z4 Isolated sexual acts involvedecreased impulse control precipitated bysome means which in rare instances leadto sexual acts with children. The preferencesfor sexual contact with a child is onlyfor the moment. There is no repeated fantasizingabout the act as a prelude for sexualcontact. The distinction between pedophilicbehavior and non-pedophilic behaviormay be clarified by comparing anon-pedophilic exhibitionist to a pedophile.An exhibitionist is a person who repetitivelyexposes his genitals to an unsuspectingstranger for the purpose ofachieving sexual excitement. It is the exposureand wish to shock the observer thatforms the basis of his sexual excitement.Sexual activity with the stranger is notneeded, nor is it sought. When exposureoccurs with a pedophile, it is a prelude tosexual activity with the child.Understanding the type of people whocommit sexual offenses against childrenplays an important function in our criminaljustice system. Those functions include,but are not limited to, the following:1. Providing the defendant's attorneywith a basis for determining whether ornot to go to trial, and if so, what strategiesshould be used.2. Providing the state with the meansfor evaluating its case and making recommendationsthereto.3. Providing the court with a basis fordeciding whether or not protectiveorders for the child are needed, or in thecase of a conviction, what type of punishmentit should assess.All of these functions involve, in oneway or another, balancing the rights ofsociety, the rights of the defendant, and therights of the victim. The proper balancingof these rights requires not only knowledgeabout the offender but also the victims andthe effects the offense has on them.The VictimsWho Are the VictimsThe victims of a sex offense againstchildren may be found in every stratum ofour society. The victim may be either maleor female (although typically, the victimis female). The age of the victim can rangefrom one day old to 17 years old. The victimcan come from a wealthy family orfrom a poor family. He or she can be ofany race, creed, or color. The victim canalso be one of highest moral standards orlowest moral standards. In short, the sexoffense victim can come from anywherein our society.How ney Are AffecfedIt is difficult to generalize about how asexual attack will affect a given child. Eachchild victim reacts to an offense and itsaftermath in his or her own individual waydepending upon the facts and circumstancesof each case. However, a numberof factors can be considered in determininghow a child will react to a given experience.These factors include the child'sage and developmental status, the relationshipof the abuser to the child, the amountof force or violence used by the abuser,the degree of shame or guilt evoked in thechild for his or her participation, the reactionsof the child's parents, and the sensitivityor lack thereof of the criminaljustice system.25 The behavioral consequencesof a sexual assault on a child canbe examined within the framework of normalchild development.Normal child development progresses insequential, overlapping phases of increasinglycomplex learning. The child mastersskills at one level and moves on to the nextstage. Physical, intellectual, and socialgrowth occur in this fashion. Althoughthere are many different theories of childdevelopnlent, the major theoretical studiesall recognize four basic developmentalstages starting at infancy and concludingwith adolescence. The four stages are: (1)the infancy stage, (2) the preschool stage,(3) the school age stage, and (4) the adolescentstage.26The infancy stage covers the child frombirth up to the typical preschool aged child,normally four years This stage doesnot function so much on the age of the in-fant but on the normal development skillsofthe infant. A new bornchild, for example,will not be able to communicate anythingabout the sexual assault. The childestablishes verbal language as the primarymode of communication normally betweenthe ages of two and four. At this point theinfant may utter afew words, however thechild has not developed adequate communicativesk~lls and reasoning abilities totell what has happened, when it happened,or where it happened. These shortcomingsare typical for the'child in the infancystage.Since a child in the infancy stage has fewverbal skills, if any, then the affects of asexual attack on the cbild must be measuredby observing the child's behavior.The child victim may cry more than normal,lose sleep, change feeding or bowelhabits, or go through periods of vomiting.In the severest case, the child may evenfail to thrive. Although the long-termpsychological effects of a sexual attack onan infant has not been determined, commonsense leads one to conclude that a sexualattack on an infant does not enhancethe physical or mental well being of thechild.The second developmental stage of achild is the pre-school stage.28 The preschoolchild ranges in age from four to sixyears old. The preschooler can tell, in alimited fashion, what has happened orshow what has happened by using dolls orplay material. The child can also describethe offender and state what the offendersaid. If the offender hurt the child, thechild can describe if helshe was hurt andshow the location of the injury.Although the preschool-child can recognizablycommunicate, the child does notunderstand concepts well and therefore thechild's verbal skills may imply a bettercomprehension than actually exists. Thepreschooler does not understand metaphors,analogies, or jokes. On the otherhand, the cbild can distinguish betweenfact and fantasy. While lying at this agemay occur, it is usually an attempt by thechild to escape from a problem or makesomething look better. The preschool childis unable to practice real deception becausehe or she still Invests adults with completeauthority and believe that adults wouldperceive any lie. At this age the child canmemorize but without comprehension. Thechild can understand simple instructionOctober 1987 / VOICE for the Defense 17

such as "no" or "stop" but the chid doesnot possess the ability to carry out multipleinstructions as an integrated whole. Thepreschooler can vividly recall isolatedevents, often triggered by associations withfamiliar sights or sounds. When thepreschooler gives a narrative account ofwhat has happened, the preschooler willnormally give a rambling, disjointed storycontaining both relevant and irrelevantdetails. For the preschooler the conceptsof time and space are usually personalized,hence not logical or orderly.The preschool-child depends totally onfamily to meet all of his or her physicaland emotional needs. This chid has anegocentric perception of the world withonly tentative awareness of any relationshipswhich do not involve the child directly.Although the preschool-child canengage in intuitive thought, the preschoolercannot understand the causality betweenevents. Thus the preschool child cannotunderstand why he or she is being sexuallyassaulted or the possible implications ofrevealing the sexual assault.Various behavior patterns may resultfrom the sexual attack of a preschooler.The chi may go through a period ofregression, which can take the form ofbaby talk or loss of toilet training. He orshe may experience feelings of inadequacyor insecurity which may be manifested bya clinging behavior to a dominant figure.The chid may suppress normal characteristic'ssuch as curiosity or spontaneity.Nightmares and loss of sleep, may alsoresult from the sexual attack. The longtermaffects of the incident may dependupon other external factors since a childat this age can repress the traumatic eventmore so than at any other age.The third developmental stage for a childis the school-age stage.29 The school-agestage encompasses children from the agesof six to eleven. This is the tme periodwhen the child begins to lose some of hisor her egocentric views of the world andstarts developing consistent relationshipsoutside of the family. The child graduallybegins to shift from total reliance on familyto a peer culture. The peer culture temporarilyreplaces some of the emotionalneeds which the child would ordinarilyreceive from the family including, but notlimited, to praise, acceptance, and love.The child still depends on the parents forrefuge and support. During the school-ageperiod, the chid becomes allied with peersof the same sex and with similar interests.Group loyalty develops as the child seeksrecognition from the group through itsrules and regulations. It is at this point thata child begins to establish deception aroundadults. This grows out of extrafamilial andintrafamilial stress factors.Though a school-age child may becomesullen or insolent with adults, he or sheseldom lies about major issues. A child atthis age is very sensitive to any apparentunfairness or differential application ofjustice. When this child is impressed withthe magnitude of the injustice which willresult from a lie, the child will not likelypractice deception especially in the presenceof two or more strange adults.Intellectually, the school age child hasan increasing mastery of language andsymbols. The child will be able to identifythe offender, the place of the offense,and give a detailed account of the offense.The child has some ability to communicatein terms of time and space. The child willbe able, in general terms, to state when theoffense occurred by relating it to somemeaningful point in the child's life, suchas whilein the first grade or around Christmas.Although the school age child graduallymoves from absolutism to relativism,the chid will not be able to give specifictimes and dates relative to theoffense. Thechild's thinking still remains in concreterather than abstract terms and as a resultthe child is unable to understand why heor she is not to blame for the offense.A sexual assault disrupts a school-agechild's emotional development. The childmay start bedwetting, thumb sucking, orengaging in some other form of regression.Conversely, the child may start engagingin pseudo adult behavior i.e. prematurelybecoming interested in sex. The child mayengage in other atypical behavior such aswithdrawing from peer groups, bathing excessively,or throwing tantrums. Theschool-age child may even suffer fromsome type of psychosomatic illness.The school-age child understands someof the implications of revealing the sexualassault and is more likely to tell a friendor a friend's mother than his or herparents.The fourth and final developn~ental stagein a child's life is the "adolescent stage."30The adolescent stage is a time period normallyfrom twelve years old to seventeenyears old. The adolescent time period iswhere the child experiences extreme physiologicaland sociological stress. Physio-'logically, the child's body grows andmatures in ways requiring new demands.Sociologically the adolescent bs faced withthe increasing demands of soclety to decidea career, be independent, and conform hisor her behavior to that of an adult.At this age the average child has developedand continues to develop sociallyuseful skills such as reading, writing, andspeaking. The sexually assaulted adolescentchild can tell exactly what happened;when it happened; where it happened; andhow it happened. This child will not understandthe intricacies of why it happened.Consequently, the adolescent may feel extremeguilt and responsibility for theoffense.The behaviors which may result fromthe assault are moodiness, depression,andlor regression. The adolescent may alsohave a sudden change in values which canmanifest itself m such behaviors as runningaway, marrying early, dropping out ofschool, or engaging in drugs and alcohol.Because sexual assaults undermine the victim'sself confidence, the adolescent victimmay tend to feel ugly or sociallyinadequate. The adolescent victim who hassuch feelings may initiate sexual relationships.The victim who feels ugly mayengage in sexual activity to prove thathelshe is desirable. The victim who feelssocially inadequate may commit sexualacts to compensate for the attention not receivedbecause of limited social skills. Thevictim may also engage in sex, not becauseof feeling ugly or socially inadequate butbecause of the inability to distinguish betweenlove and sex. Incest victims typicallyfall into this category.The dynamic affect that sexual offenseshave on children cannot be underestimated.Developmental skills, social skills, andfunctional skills become affected, in variousdegrees, when children become involvedin sexual offenses. Researchers aregenerally in agreement that the trauma sufferedby the child is either reinforced,magnified or heightened by the proceduresinvoked by the prosecution of the offender."With this point in mind we nowturn our focus on the criminal justicesystem, the offenses designed to protect thechild, and the manner of proving theoffense.18 VOICE for the Defense I October 1987

against the adult's word. Even before onew8d is spoken, the score card on credihiiityis in favor of the adult and against thechild. The average adult readily assumesthat children tell lies, thus giving a minusto the child and a plus to the adult. If thechild is an adolescent and has willinglyengaged in sexual relations with the defendant,the average adult may view her asthe infamous Lolita," the beguiling femalewho embarks upon the seduction of anolder man. If so, the child's credibilitywould not be weighed as an abused victimhut instead as a blameworthy part of theoffense. Effective prosecution involves notonly understanding the effects of thecriminal justice system on the victim, hutalso involves understanding the lawsdesigned to protect the victims from sexualencounters.1. Susannc M. Sqroi, "Sexual Molestation ofChildren: The Last Frontier in Child Abuse,"Children Today 4 (May-June 1975): 19.2. Leroy G. Schultz, "The Child Sex VictimSocial, Psychological and Legal Perspectives," CitddWelbre (March 1973): 147-48.3. Vntcent DeFrancis, ProtecIing the Child Victit11ef Sex Crimes Committed by Adults (Denver,Colo.: Children's Division, Amencan HumaneAssociation, 1969).4. Ann Burgess, Nicholas Groth, el al., SerualAssault of Clrildren wd Adolesce~~fs. (LexingtonBwks, D. C. Heath and Company. 1978) p. 7.5. Nicholas GmthandJcacan Blmbaur, "Adult SexualOrientation and Altractian to Underaged Perrans,"Archives of Serunl Behavior Vol. 7, No. 3(1978) pg. 180.6. Diognosrle and Statistical Moluol of MemlDisorder (DMS-111). American Psychiatric Asnociation(3rd ed. 1980) A pedophile is a person possessinga psychosexual d~mrder lolomaspedophilia Onemust keep in mind that menlal disorders as well asothwbeliavhr patterns donot classify the indindualbut mslead behavior patterns that an indwidual mayhave. Thus aperson who has the pedophilic behaviorpattern may also have other behavior patterns suchas narcissrsm (a grandiose sense of self importance).The word pedophileas used herein wdlmerely repsent anindlvidual whose "prcdormoate" behavmrpatternis pedophdta.One must also keep in mind when reading aboutbehavior patterns that psychiatric terms and legalterms d~ffcr. DMS-III limits the definition of apedoph~le to an adult who a ten years or more olderthan the prepuberlal child. For adolescents with thedisorder, no preciseage diiference isspecitied. DMS-III at p. 271.7. See note % See also note 4.8. See Nicholas Groth andJeanBirnbaur, "AdultSexual Orientalmn and Auraclion to Underaged Persons",supra at 176.9. See note 4.10. Id.11. Id.12. Sexual Assault of Children and Adolescents,supra at p. 813. Id. at pp. 8-914. Id15. Id.16. Id.#om. (Fan Fmlsco, Calif.: TOW-BassPublishen.1978).18. Serrml A m h of Chrldrm nwd Adolescents,supra ; A. Nccholas Grath and Ann W. Burgme,"Motivational Intent in the Scxual Assault ofChildren," Criminal Justice and Behavior. 4 no. 3[September 1977).19. See note 4 at p. 11.20. See Groth end Burpess, "MotivatianJntent."supra.21. Id. Seedso, David Libai, "The Pmlectionofthe Child Vlctim of Sexual Offense in the CriminalJuaice System" in Reape Victimology ed. Shullz(Springfield. 111. 1975).22. See note 4 at pg. 13.23. See note 4 at pg. 15.24. Diagxoslic atrd Staristical Martun1 of MeentdlDisorder, (DSM-111) 3rd Ed., An~errcanPsychiatricAssociation (1980) pp. 271-272.25. See Labai, "The Pmtection of the Child Victimof Sexual Olfense", srqm a1 p. 311.26. See Musson, Conger, Kagm, ChildDevelopmntnnd Personality; Berlirrer, L. attd Stevem D.,"Advocating for Sexually Abused Children in theCrund Justice System" Serual Abrm of ClrildrwSeiectedRendings, Kempe, Kempe CltildAbuse, TheDeveloping ChAd Series. The infommtionrelatingtochlld development contained herein is supported bythese authorities27. Id.28. Id.29. Id.30. Id.31. See note 3, DeFmnas, "Pmtechng the Child"supra.32. Id.33. Rube* L. Gciser, Hidden Yicriw. The SerrmlAlurseafCltrldrpn. (Boston: Beacon Press, 1979)p. 63.41. Louts Amrtmng, Kin Dddy Goodnrght (NewYark, N.Y.: Hawthorne Bwks, Inc. 1978) pp132.136.New Publicationsby Don AdarnsCriminal Law Bulletin Tracking, by Patricia Rayhurn Right to ConnselArticles1987 23 Cr.L.B. 374, Evidence and1987 23 Cr.L.B. 309, Re Amtomy of Trial Advocacy Workslzop: Admissions of rexas rech ~~~j~~Defense Strategy in An Espionage Case. a Party-Opponent-Adoptive and Represen- ~ r t i ~ l ~by Donna Brown Siers tative; Personal Knowledge 1987 18 Tx.TechL.R. 407, Survey-198723 Cr.L.B. 323, The Speedy-Trial Criminal Law and Procedure, by CharlesDilenma: A Handbook on Reform, by Paul Horcsfon Law Review P. BubanvB. Wice Comments 1987 & Tx.TechL.R. 655, Survey-1987 23 Cr.L.B. 339, Computer- 1987 24 H0u.L.R. 765, Sixth Amend- Prisoners'Rigltts. by Edward F. ShermanAssisted Arrest Processing and Case ment Exclusionary Rule: Stepchild of the 120 VOICE for the Defense / October 1987

Bafson K Kentucky:A New Weapon for the Defenseby Mark mielman and Malinda SeymorePart 1More than a century ago the UnitedStates Supreme Court held that a statedenies a black defendant equal protectionof thelaws when it puts him on trial beforea jury from which members of his ownrace have been purposefully excluded1That principle has never been seriouslyquestioned.* Until recently, however, d efendants faced an almost insurmountableburden in proving this purposeful discrimination.Under Swain v. Alabama3 defendantscould not rely upon the acts of theprosecutor in their case alone. Instead, theywere required to show that "in all cases,in all circumstances, whoever the victim,whoever the defendant, blacks were excludedfrom juries without cause."4The recent case of Butson v. Kentuckysreplaces the difficult evidentiary burden ofSwain and arms the defense counsel witha new weapon against perceived discriminationon the petit jury. The SupremeCourt in adopting Batson followed the leadof state courts which circumvented Swainand protected defendants under the sixthamendment or under state constitution^.^Defendants in these states have benefitedfrom the additional constitutional protections.With the advent of Batson and itsretroactive application,7 Texas defendantsmay now share in these benefits as well.Any new rule causes initial confusion;Texas courts and attorneys are justifiablyuncertain of the scope of Batson. As trialand appellate courts struggle with this newdoctrine, the pmdenl dcfcnse t~llorncy mustbe ~articularlv careful in wicldine " this ncwwApon. ~hiiarticle will attempt to assistdefense counsel by discussing: 1) the preservationof Batson error; 2) the presentationof evidence to meet the criteria ofBafson; 3) the remedies if error is found;and 4) the appeal of a Batson challenge.Finally, we will suggest alternativemethodsof establishing a case of purposehl discriminationunder Bataon.Batson: Forging the SwordIn Swain, the Supreme Court recognizeda fourteenth amendment challenge to discriminatoryjury panels. In practice, however,this theoretical right was effectivelymooted by the difficult threshold showingrequired to demonstrate prosecutorial misconduct.In order to demonstratea "State'spurposeful or deliberate denial to Negroeson account of race of participation as jurorsin the administration ofjusti~e,"~ a defendantwas required to show a systematic exclusionof minorities. Such a showingcould not he made on the basis of the currentcase alone but rather required a demonstrationof a historical pattern ofdiscrimination.Defendants, as a practical matter, werealmost never able to meet this burden. TheLouisiana Supreme Court, for example,reviewed fourteen East Baton RougeParish cases involving the exclusion ofblacks from juries between 1972 and 1979.In seven of these cases, the prosecutor wasthe same man. The prosecutorjustified hispractice of excluding blacks throughperemptory challenges by stating that "IMalinda L. Sevmore is a brjefing aftor- Iney with the ~ifti~isfrict ~ounOfk~~eahin Dallas and an insttucfor in the LegalhsistarttfProgram af El Centro CommunigCollege. She is a graduate of BaylorUniversity School of Law and of RiceUniversity.Mark A. Thielmaa is a research attorneywith the Fiji11 Distrid Court of Appeals inDallas and an inswucfor in the Legal Assistant'sProgram at El Centro CommunityCollege. He graduated from The Universityof Tern School of Law in 1986. Hedid his undergraduate work at TexasChristian University.October 1987 1 VOICE for the Defense! 21

have found through experience, sometwenty-three years in the District Attorneys[sic] Office, that blacks where you havea black defendant, will generally vote notguilty, in spite of the strength of the State'scase."P Notwithstanding this evidence. ofhistorical exclusion, the court neverreversed a conviction on Swirl grounds.10Responding to Swain's evidentiary failures,the Supreme Court adopted a newstandard in Batson. The primary changeis that a prima facie case of purposeful discriminationmay he established solely onthe basis of the prosecutor's actions in thedefendant's case. To establish a primafacie case under the new criteria, a defendantmust first show that he is a member ofa cognizable racial gronp and that the pmecutarhas exercised challenges to removefrom the venire members of the defendant'srace. "Second, the defendant is entitledto rely on the fact, as to which therecan be no dispute, that peremptory challengesconstitute a jury selection practicethat permits 'those to discriminate who areof a mind to discriminate'."" Third, thedefendant must show that these facts andother relevant circumstances raise an inferencethat the prosecutor used peremptorychallenges to exclude the veniremenon account of their race. Once the defendantmakes a prima facie showing, theburden shifts to the State to present aneutral explanation for challenging eachblackIn deciding whether a prima facie casehas been established and whether raciallyneutral reasons have been tendered, theBatsort court placed great reliance in thediscretion of the trial courts. "We haveconfidence that trial judges, experiencedin supervising voir dire, will be able todecide if the circumstances concerning theprosecutor's use of peremptory challengescreates a prima facie case of discriminationagainst black jurors.""Wielding the SwordEffectively using this newly forgedweapon will require defense counsel tobegin building his case almost upon entryinto theconrtroom. From the moment theattorney becomes aware that his client isa member of a cognizable racial group, hemust begin to prepare for the possibilityof a Batson challenge. Although winningat the trial level is of course the goal, acomplete record must be built in order toinsure a full and fair review on appeal. Theattorney, therefore, must devote preparationtime to tive discrete areas: A) preservingerror; B) presenting a prima facie case;C) responding to prosecutorial rebuttal; D)requesting appropriate relief; and E)prevailing on appeal.Drawing the Sword: ne ProperPreservation of ErrorAs with any objection, a Batsonchallenge is only effectiveif properly presented.The timing of a Batson objectionis crucial since the error may be waivedif it is not timely made. In Batson, defensecounsel moved to discharge the jury beforeit was sworn, and requested a hearing onhis motion.14 The court stated that "petitionermade a timely objection to the prosecutor'sremoval of all black persons onthe venire.'"5 The Court of Criminal Appealshas followed this implied ruling inBatson, holding that the proper time toraise the objection "is after the compositionof the jury is made known but beforethe jury is sworn and the venire panel isdi~charged."'~Objections must not only be punctuallyoffered to present the issue ta both the trialand appellate benches, challenges to thejury must also he offered in a form thatmakes them acceptable. At least one outof-statecourt has required that a Batsonobjection be in writing when presented.17It is axiomatic that an objection must bespecific enough to call to the attention ofthe trial court the error complained of bythe defendant.18 Counsel must also pressthe trial court for a ruling on his objection.lgIt is also incumbent upon the defendantto urge the trial court to hold ahearing in order to resolve the Batsonchallenge.20 Although the case law on thespecific preservation of Batson error isscant, there is littleauthority to suggest thatBatson will require novel rules of preservation.Defensecounsel must object timelyand specifically, request an evidentiaryhearing, and obtain a ruling on his motion.me Thrust: Establishing thePrima Facie CaseThe most troublesome aspect of Batsonis determining what circumstances must beshown to establish a prima facie case ofpurposeful discrimination. Clearly, thedefendant must show that he is a memherof a cognizable racial group andthat theprosecutor sfruck members of that racialgroup.Z1 Further, Batso; requires thedefendant to show that these facts and otherrelevant circumstances "raise an inferencethat the prosecutor used [peremptory chal-Ienges] to exclude the veniremen from thepetit jury on account of their race."22Texas cases have thus far donelittle to embroiderupon the law of Bai~on.~~ Mostcases have disposed of the issve on waivergrounds.= Those courts who have reachedthe merits have been reluctant to find aprima facie case.25At this writing, only two Texas courtshave found a prima facie case. In Rodgersv. State,26 the prosecutor utilized six of histen peremptory challenges to remove allblacks from the venire. The record revealedthat only three of the six strickenwere questioned during vok dire. In Garzqv. State,27 defendant, a hispanic, wascharged with aggravated assault. Thevenire consisted of nine hispanics. Theprosecutor exercised seven peremptorychallenges against hispanics. Only onehispanic served on the jury because theother was too deep in the venire to bereached. The defendant established an inferenceof discrimination:The prosecution used the vast majorityof its strikes against Hispanics.There is nothing distinctiveabout thevoir dire which would indicate therationale behind the prosecution'sstrikes. All the members of the jurypanel answered the voir dire questionssimilarly. Both the appellantand the victim are Hispanic. Thefacts of this case raise an inferencethat the prosecutor excluded veniremenon account of their race.zsThe Texas cases areof limited assistancem determining many issues. Batson leavesunanswered the questions of: 1) whetherdefense counsel must present evidence; 2)what constitutes a cognizable racial group;3) may a defendant complain of strikes outsidehis racial group; and4) what circumstancesraise an inference of racial discrimination.Requirement of evidenceOne Texas appellate court has attempted22 VOICE for the Defense 1 October 1987

to respond to an unresolved Batson issuethenecessity for an evidenfiory hearing. InPrice v. Stale," the court stated:appellant failed to establish by .evidence (in the nature of a stipnla-Ition or otherwise), that he was black1 and that the six jurors struck by the, State were black. Further, we findI that he failed to establish byevidence, any relevant circumstancesto raise an inference that the prosecutorused his peremptory challengesto exclude veniremembersfrom the petit jury on account oftheir race.)"The court further stated that the observationsof defense counsel was not evidence.Courts in other states have also requireddefendant to establish his prima facie caseby means other than the statements of hisco~nsel.~'In light of the holding in the only Texascase on this specific issue, prudent counselshould present evidence to support eachelement of the prima facie case. It shouldnot be difficult to obtain a stipulation orjudicial notice of the defendant's race andthe race of the prospective jurors challenged.If defense conusel wishes to establishthese matters by statements in therecord, he should be sworn in and givetestimony as would any other witness.'"Cognizable Racial GroupIn Texas, challenges under Batson havethus far been raised only by black and hispanicdefendants. The test for a cognizableracial group is whether it is a recognizable,distinct class singled out for different treatmentunder the laws as written or as applied.33Under this defmition, the possiblegroups expand beyond traditional racialclassifications. In Rijo v. St~te,~' for example,the defendant was characterized bydefense counsel as "from the DominicanRepublic" and "partially Negroid and partiallySpani~h."~~ The court held that thedefendant was affiliated with the black raceand, therefore, could protest the exclusionof a black man from the jury. Texas caseshave also permitted challenges to be raisedby hispanic defendant^.^^ American Indianshave also been held to be acognizable racial group." In a case decidedon the basis of Massachusetts' stateconstitutional rights, the court foundFrench-Canadians to be a distinct groupmeriting prote~tion.'~The specific mandate of Batson islimited to race; however, courts in Massachusettsonce again relying on their stateconstitution have extended the protectionto gender." The same court in Commonlvealthv. Samuel4o was unable to finda constitutional basis for challenging theexclusion of young personsStrikes Outside Racial GroupOne of the elements of the prima faciecase under Batsom is that the prosecutor hasexcluded members of defendant's racialgroup. In State v. Cl~risfensen,~' theMissouri appellate court held that Bamnwas inapplicable when the defendant waswhite and complained of the exclusion ofblacks from his jury." A similar positionwas taken in Fields v. Peogle;4' uonetheless,the court held that the Colorado stateconstitution and the sixth amendmentallowed a blackdefendant to challenge theexclusion of hispanics. Other courts havepermitted white defendants to challenge thestriking of blacks from the jury.*'Inference of DiscriminationThe Court of Criminal Appeals has furtherconfused an area left unresolved byBatson: will the simple exclusion ofminority members alone raise the inferenceof purposeful discrimination? In its firstopinion in Keetorr v. Slate,45 a caseinvolvinga black defendant and prosecutorialchallenges to three black venirepersons,the court held that the defendant had toshow that there were sufficient other factsto raise an inference that the prosecutor excludedvenirepersons on account of theirrace. The coun withdrew Keeton I on itsown motion. In Keetort 1Z26 the court didnot address the requirements of a primafacie case but rather remanded for a trialcourt determination. In cryptic language,Judge Miller suggested that the fact that"an inference of racially motivated juryselection could be demonstrated by thestrikes themselves" was a new procedure.47Whether he was attempting to drawa distinction between the Swam standardand the new Barson procedure or was commentingupouthe proof necessary to d~awthe inference remains unclear. Althoughcourts in California have held that an inferenceis raised solely by demonstratingthe exclusion of venirepersons of the sameracial group,'"most state courts have concurredwith KeeronBatson suggested several Gircumstanceswhich may raise the necessary inference."A 'pattern' of strikes against blackjurorsincluded in the particular venire might giverise to an inference of dis~rimination.~Similarly, the prosecutor's questions andstatements during voir dire examinationand in exercising his challenges may supportor refute an inference of discriminatorypurpose. These examples aremerely illnstrati~e."~' Other cases haveput forward a variety of tools for counselto employ in seeking to raise the inference.In Contmonwealtlt v. so are^,^^ the courtfound an inference where the prosecutorutilized peremptory strikes to exclude 92%of blacks on the venire while excludingonly 34% of the white jurors. Striking 19of 23 members of defendant's cognizablegroup has also been held to be such a disproportionateexclusion so as to raiae aninference.53 Even if courts snbsequentlyestablish that an inference is raised solelyfrom the simple exclusion of minorityrnembcrs, noncthelcss, u statistically-basaldetermination - that morc blacks than whitcswere struck may better illustrate themagnitude of the exclusion.i~~jlammatory caseCourts have found an inference wherethe subject matter of thecase was such that"racial overtones were unavoidable."" InWashing.ton, the black defendant was accusedof operating a prostitution ring.There were also allegations of sexual relationshipswith whiteprostitutes. Thecourtnoted that the defendant might meet thestereotypical image of a "pimp", andstated that those circumnstances were astrong indication that a prima facie casewas established.Ss Similarly, in Sinrpson v.Mas~achusetrs,~~ a black defendant wascharged with sexually assaulting a whitefemale. The victim's consent was at issue.The court noted "racial prejudice couldeasily lead whitejurors to draw inferencesagainst [the defendant]. "5'race of victimClosely related to the inflammatoryOctober 1987 1 VOICE far the Defense 23

nature of the case, courts have shown awillingfies to find an inference of impropermotives in the exercise of peremptorychallenges in cases where the victimwas of a different race than that of thedefendant. Where the murder victim waswhite and the defendant black, an Oklahomaappellate court found discriminationwhen the prosecutor struck three hIacks.58In State v. GiIrn~re,~~ interestingly, thetrial court found an inference of discriminationrelying in part upon the factthat defendant and his counsel were blackand the prosecutor was white.60comments of prosecutorThe best tool for creating an inferenceis when trial counsel uses peremptories tostrike minority members and candidly admitsdoing s ~.~' In one of the companioncases to Gtifith v. Kent~cky,~? the prosecutorstated to the trial court clerk, "Wewould like to have as few black jurors aspossible."63 Less blatant references, however,may also raise an inference. In a casewhere the defendant was complaining ofexclusion of French-Canadians, for example,the prosecutor emphasized the importanceof where prospective jurors wereborn and then struck a juror wearing amaple leaf ph6* The dissenting judge inCommonwealth v. McKendrick" wouldhave held that the defendant raised aninference of discrimination when the prosecutorin closing argument made referencesto murder in "South Philadelphia","ghetto" and "projects".66conduct of voir direHearkening to the specific language ofBatson, many courts have looked to theprosecutor's conduct of voir dire for evidenceof the prima facie case. Cases inwhich the prosecutor conducted a desultoryvoir dire, resulting in little information thatwould justify a peremptory on a basis otherthan race, have been held to raise an inference.In Garza v. State,Q the courtfound a prima facie case when there wasnothing distinctive about the voir direwhich would indicate the rationale behindtheprosecutor's Certainly, whereno questions are asked of black, prospectivejurors, a court's conclusions regardingthe presence of discrimination would bestr0nger.~9Nexr montb-PartII1. Stmuder v. West Yirgltiiia, I00 US, 303 (1880).2. See e.g. Varquez v. Htllery. US., 106 S.Ct. 617 (1986).3. 380 U.S. 202 (1965).4. McCrny v Abranu, 750F.2d 1113, I121 (ZdClr. 1984)?5. 476 U S . . 106 S.Ct. 1712 (1986).6. See e.g. People v. Wheeler. 22 Ca1.3d258.148Cal. Reptr. 893, 583 P.2d 748 (1978); Cornrnorrlvealttrv. Soares, 377 Mass. 461, 387 N.E.2d499, cert. denied* 444 US. 881, 100 S.Ct. 170,62L.Ed.2d 110 (1979).7. GriBith v. Kenmcb, U S . 107S.Ct. 709 (1987). Seealso Hardyx State, No. 014-87(Tex.Crim.App. March 18, 1987), rev'gl22 S.W.2d164 (Tex.App.-Houston 114th Dist.] 1986) (courtofappds erroneously ruled that &tsm did not apply~mactively); But see AIIa v. Hardy, U.S., I06 S.Ct. 2878 (1986) (Batmi does notapply retmactwely oncollateral attaek); Joh~~son v.Me, No.O.05-8MX)781-CR(Tex App.-Dallas Match17, 19873 (appellant may not attackprior convictionsalleged for enhancement purposes on Banon grounds)fonoublishedsndtherefam of no orceedential value\.i hi", 380 us. atzo304:ss s.a. at a zi.9. State v. Brown, 371 3o.2d 751.752 n.7 (La..-.-,. 19791lo. Doyel, h Search of0 Remedy for the RaciallyDiscriminn~ory Use of Peremptory Ckllexges, 38Okla. L. Rev. 385, 388 (1985).11. Batsm, 106 S.Ct. at 1723.12. Id. Balmn isafourlcmthsmendment case thus,aneutral explanation must bsprovidedfor each jurorso that his rights to serve in the jury process are notviolated. See Keeton v. Slnte, No.69,639, slip op. at12n.5 (Tex. Crim. App. April 15, 1987) (onreh'g).If this were treated as a sixth amendment issue, thecmoial Inquiry wouldbe whether thedefendant wereafforded a fair and impanial trial. If that were thcinquiry, perhaps the prosecutor would not bs requiredro present a neutral explanation for striking each juror.13. Batsou, 106 S.Ct. at 1723.14. Batson, 106 S.Ct at 1715.15. Id. at 1725.16. Henry v. Slate. No. 1216-85. slip op. at 7-8Cfex. Crim. App. April 8,1987). The Court held thatin casespending onreview or not yet final at the tnneB~WDII was decided, thedefendant need only presentthe issue to the trial court. See WiIIimr~s v. Sfate, 712S W.2d835.M (Tex. App.-Carpus Chrisd 1986.pet. pending). Interestingly, in Willint~~s, the defendantprcscnted his objection before mther side exercisedany strikes. Counsel notcd that the Stale"could" use its peremptory stnkes to axciude threeblack on the venire. The court correctly held thatthe objection came tw early. Seedso Price v. Smie,No. AL4-86-595-CR (Tex. App.-Houston [lllthDit I March5, 1987) (not yet reported); ed);~hiStnlesIL Ervin, 793 F.2d 656, 667 (5th CK. 1986).17. People v. Parker, 509 NYS2d 586,588 (A.D2 Dent - 19%)18. Tex. R. App. P. 52.19. Sarhmr v. Stare, 500 So.2d 1322, I323 (AlaCrim. App. 1986).20. Basox, 106 S.Ct. at 1715.21. Barson, 106 S.Ct. at 1723.22. Id. When the court states that "these facts"must raise an inference. ..oresumablv it refers to thek t ihaldefcndnnt is black and the prusccumr struckbllcks and thc fact tl~st ycrumpmry clrallcngcr arc upotentially discriminatory prorms.23. The absenceof Tenas caselaw onBarson maybe remedied shortly. With Henry v. Stafe, No.1216-85 (Tex. Crim. App. April 8, 1987) andgeetonv. State, No. 69,639 (Tx. Ctim. App. ApIit 15,1987) dtscussed supra at note 112, the Court ofCriminal Appeals has demonstrated a willingness toabate and remand pmblematic eases.24. Sa~ders v. Slate, No. 06-86-WXKCR (Tex.App.-Texarkana March 4. 1987); Catley v. StaleeNo. BI4-86-LW77-CR (Tea. App.-Hausbn [14thDist I February 26, 1987): Sdlamr v. Sfole, No.02-86-WO59-CR (TSL App.-Fon Wonh March 12,1987); Price v. Sm, No. A14-86-00595-CR (Tcx.ADD.-Houstan 114th Distl March 5.19871: Wdlia!mtherefore of no precedentid value).25. Tonv~set~d v. Stote, No. 6&059 (Tex.App.-TexarkanaMarch 17,1967); Sendersv. Stole,No. 6-86-006 (Tex. App.-Texarkana March 4,1987); Chanrbers v. Sfare, 724 S.W.2d 440 (Tex.App.-Houston [lst Dist.1 1986); Rijo v. Slim, 721S.W.2d 562 (Tex. App.-Amarillo 1986); Wdlimrsv. Sate, 712S.W.Zd835 (Tm. App.-Corpus Christi1986) ..--,26. No. 01-864370CR (Tex. App.-Houston [lstDist.1 February 12, 1987).27. No. 13-86-044-CR (Tex. App.-CorppsChristi Feb. 12, 1987).28. Id. at 3.29. No. A14-86-595-CR (Tex. App.-Houston[14th Dist.] March 5, 1987) (not yet reported).30. Id., shp op. at 3.31. Peoplev. Johnson, 502 N.E.2d 301.31 1 (111.App. 1 Did. 1986); Weekly a Smte.496 N.E 2d29,31 Ond. 1986).32. Any person present in the courfmomduringvoir dm would be able to testify as to the race ofthe defendant and the jurors struck, including thedefendant, the badBaodthecnur xgorter. Thismayallay any qualms about the propriety of an attorney'stestifying, raisad by Canon Five offhe Code of PmfessronalResponsibility.33. Uirtted Slates v. Dewis, 804 F.2d 1208, 1210(11th Cir. 1986) (cittng Cmtaned~ v. Partido. 430U.S. 482, 494 (1977).34. 721 S W.2d562 (Tex. App.-Amanllo 1986).35. Id. at 563.36. Gnm 5,. State, No. 13-86-044-CR (Tex.App.-Corpus Christr Fcbruary 12, 1987) (not yetreported); Salazar v. State, No. 2-86-059-CR (Tex.App.-Fort Wonh March 12, 1987) (not yetreported). Although thecourt in Sabzor, drsmlsseddefendant's daim imn waver grounds, thecwrt seemsto reco&c his righz as a member of a cognizableracial group to raisea Balm, cia~m. Seealso Peoplev. Trwino, 701 P.2d 719, 726 (Cal 1985).37. UnitedSrctesv. Chalnn, 88L2F.2d 1302 (10thCtr. 1987)38. ~o~~~~ornwollh v. Gagmm, 449 N.E.2d 686,692 (Mass. App. 1983).39. Cmm~m~wen1IJ1 v. Reid, 424 N.E.Zd495.5W(Mass. 1981).40. 495 N.E.2d 279, 281 (Mas 1986).41. 720 S.W.2d 736 (Mo. App. 1986).42. 1d. at 736. See also Henfon v. State, 350S.E Zd480.482, 180 Cia. App. 718 (1986); Kiblerv. Stnte, 501 SoSd 76, 77 (Ha. App. 5 1987).cmti,~ued on page 3924 VUICEfor ihe Defnse I October 1987

Mot ion Practiceby GeraM GoldsteinAlmost one and one-half years agoBrother Jack Zimmemann of Houston beganhis representation of Shannon ReneeRivera, charged in what authoritiesdescribed as a brutal satan-cult disfigurementand murder. On Friday, April 24,1987, the eve of jury selection and trial,the following Monday, a prosecutor gavewritten notice of the "possibility" he maycall Mr. Zimmermann, JimE. Lavine, hislaw partner, on their defense investigationto testify as a prosecution witness at thevery trial they were retained to defend.The Lawyers Assistance Committeefiled the attached Motion for Leave to Appearas Amicus before the trial judge, CarlWalker, a former Assistant United StatesAttorney for the Southern District ofTexas. The incredible position taken by theprosector was that he had not decidedwhether or not to call Zimmermann to testifyagainst his client, and therefore the issuewas not ripe for determination.The Lawyer's "Strike Force" argued, thatin addition to the obvious attorney-clientprivilege and right to counsel of one'schoice arguments, the spectical of waitinguntil trial had commenced to shock thecitizen's only representative from her rideand transform her advocate into a witnessfor the prosecution was too much for ourdelicate adversary system to bear. Not tomention the obvious, and one might suspectintentional, intimidation such an axehanging over the head a less vigorouscounsel might have had. The prosecutor'ssuggested solution was for defense counselto withdraw.It was for the very reason that the prosecutionhad attempted to exercise such aunilateral wedge between a citizen and hisdefender that Judge Walker was urged torule prior to trial and send a message toother over-zealous prosecutors, that suchattempts to strip one side of our adversarysystem of the advocate would not be tolerated.The Motion to Quash was granted.STATE OY TEXASYS.SllrlhWUN WEEIUVBRACAUSE NO. US48) IN TIE DtSIRICt COURT) Isml nm1cw. DtSTRlCr) IIABRIS COOXlY, TEXASSuch action as wcil undermines the citizen's confidence in hrs chosen cwnset~ ~and in the fairnes of the criminal iustice svslem as a whole.Mnre, imponanlly, such action, d~rcctcd at the ritimn'i only rcprcscnt~tivcintimidates Cuunwl frum providing thc vigorous representatiu~~ lo which theclient is enlitled.This'Honorable Court should reject the proseeulion's efforts to remove oneside's adversary from our adversary processTO THE HONORABLE CARL WALKER:The National Assn'iatm of Crimxnsl Defense Lawers is a non-nrofit organimlionrompriscd of over 4,802 atlurncy throughout lhesc llnited Slamwho arc wnccrned xhhoul Ihc Criminll Justiw Systcm:md lhc qualily nf rrprcwtatronprovided citizers accused of crime.The Texas Criminal Defense Lawyen Association is a no"-profit membershiporgalwal~onmadcupofaver 1,lW heensedaltorneys Ihmughoutthe Slateof Texas who share those concerns and aspirations.One of the prrmary concerns of thrs arganilAion and its membership, is theoresewation of the attornevdient and work nrcduct nrivdeses . - which arc thecurnersswe of an arcu.cJ's right to ~lfcclivc :~r,i,tax~c of counwl guaranteedhy lhc Sixth Amcndmcnl 118 the US. Cunrtilutiur~ dnd Andc I. $10 c ~ f theTexas Cunvilulion. Ox State judiciary hit? hrd a lung hirlnry and tradilionof scrupulously protecting those privileges and the accused's right lo counselof his or her chbice.Amici scek leave to appear out of an abiding concern that the State's threatto call Counsel to testify against his own client at the very trial they were retainedto defend, infringes upan and undermines Ihose well-established legalprinciples which underpin the adversary process.Counsel herein respeftfully moves this Honorable Courl for leave to appearas Amicus Curiae in the above entillcd and numbered cause sel far Friday,April 24, 1987, at 2:M P.M., in this Court.This case presents a dangerous precedent. A lawyer has been advised he willbe called by the prosecution to testify as a witness for the State against his ownclient at the very trial he is defending.It is the wsition ofboth the National Associationof Criminal Defense Law-acting in'the best tradiiian of their profession.By calling an attorney to testify at the very trial he has been retained to defendthe prosecution cuts at the very quidr af our adversary system. By creatinga conflict which otherwise would not exist, the prosecution deprives thecilkdclient of the counsel of his or her choice.Respectfully submitted:GOLDSTEIN, GOLDSTEIN & HILLEY29th Flmr Tower Life BuildingSan Antonio, Texas 78205By:Gerald H. GoldsteinBar #OBIOlOWAltorncvs for theNATIO~AL ASSOCIATION OF CRIMINALDEFENSE LAWYERSTEXAS CRIMINAL DEFENSE LAWYERSASSOCIATIONCERTlFICATE OF SERVICEORDERGerald H GoldsteinOn thrr date came on to be considered Motion for Leave to Appear as AmicusCuriae and said Motion is hereby(GRANTED) (DENIED). ENTERED t h i s day of April, 1987.Judge PresidingOctober 1987 1 VOICE for the Defense 25

PrefaceThere are three methods of chemicaltesting that have been statutorily approvedfor evidentiary purposes in DWI pmsecutions.This month's practice gem featuresan excellent article on one of those methods:urine testing. The article, authored byRichard Sissman, is well researched anda reading must for the defender of anyurine test, prosecution. This article willalso soon appear in TEXAS DRUNKDRIVING LAW.IntroductionIn the prosecution of driving while intoxicated@WI) cases in Texas, the overaupurpose of chemical testing for intoxicationis to determine the quantitative alcoholconcentration that has reached the hlood,breath or urine of the suspect.' The degreeof impairment of a DWI suspect's mentaland physical faculties has direct hearing onhis driving ability. Samples of hrain tissueor spinal fluid are the best indicators of thequantitative presence of alcohol in tissueandlor the degree of impairment; however,there are practical problems inherent tocollection and storage of such samples.Breath and hlood testing are two otheralternative means available that are moreconvenient and less painful than eitherspinal fluid or hrain tissue analysis. Chemicaldetermination of alcohol concentrationby urinalysis is another such test.2Texas permits the use of urinalysis toRichard M. Sissman received his B.S.degree from the State University of NewYolk, Binghantton, in 1977. He receivedan M.A. in C~iminal Justice Adminisfrationfrom the State University ofNew York,Albany, in 1979. A J.D. degree was obtainedfiom South Texas College of lnwin 1985. He is a member of the Texas andD.C. bars, and currently practices inHonston, Terns.26 VOICEfor the Defense 1 October 1987DWI Practice GemsThe Use of Urinalysis in DWI Prosecutions in Texasby J. Gary Trichfer (featuring an article by Richard M. Sissman)J. Gary Trichfer is a partner @the la~vjirm of Mallett, Trichter & Brann btHouston, Tas. He is co-author of the tatentitled Texas Drnnk Driving Law by ButtenvorfhPublishers. Mr. nichter has alsowritten many journal arlicles and hastaught as an adjund professor of law atSourh Texas College of Law and theUniversity of Houston Law Center.Driving while intoxicated criminal casesare ripe with numerous legal issues for theinnovativepractiiioner. Accordingly, thefollowi~tg is offered as foodfor thought inyourpraetice. In this regard, the authoralro invites your inquiries, suggesh'ons, articles,contriburions and comments.determine the amount of alcohol concentrationin a person's body in DWI cases.3Accordingly, it is sometimes used, althoughless frequently, by law enforcementto determine the alleged alcohol concentrationof the suspect driver.Urinalysis test results are premised uponthe notion that the results can he accuratelyand reliably converted into and comparedwith hlood alcohol concentration testresults. However, this premise has beenproven faulty because urinalysis has beenshown to be far less accurate than othermodes of testing, such as blood andbreath.' Accordingly, this method of inaccurateand unreliable testing took onspecial significance in light of the .10 perse intoxication statute which became effectivein 1984.5Under Article 6701(1)-l(a)(2)@), intoxicationis defined as having an alcohol concentrationof 0.10 or more "in the body.""[Ilnthe body" has been sub-defined andlimited by statute to mean hlood, breath,and urine. Therefore, a person with analcohol concentration of 0.10 or more inhis urine at the time of driving, is con-sidered to be legally int~xicated.~ Indeed,such a person is deemed to be legally andconclusively intoxicated even if his normalmental andlor physical faculties are actuallyunimpaired.In this regard, it is known that the averagealcohol concentration in a person'surine is generally between 1.33 and 1.35times the concentration of alcohol in theblood.7 Ostensibly speaking, it would notbe difficult to convert a urinalysis testresult into a blood-alcohol test result. However,such is not the case. There are noknown studies that demonstrate the accuracyor reliability of urinalysis, absent acorrelation of either simultaneous hloodandlor hreath analysis, or that validate theuse of urine testing alone.Accordingly, it is the purpose of thisarticle to cover evidentiary concerns pertinentto urinalysis results and specimenadmissibility m DW1 cases. Relevancy ofthe urine chemical test will also be reviewedwith a special emphasis placedupon the validity of the test theory and itsprocedures.8 Lastly, issues regarding statutoryconsent procedures, including thenoncousensnal taking of samples, shall alsohe addressed.Alcohol Consumption as itPertains to Absorptionand Elimination of AlcoholFrom the Urine

Conversion RatiosUpon ingestion into the body, alcohol issecreted into the bladder nrine by diffusionthrough the kidneys. Many scientific studieshave consistently shown that the concentrationof alcohol in the urine at the timeit is secreted in the kidneys is approximately1.33 times that in the blood.g Thepercentage of alcohol in a specimen ofurine as it is secreted in the kidney, if dividedby 1.33, is said to provide a reasonablynccrrrnfe esthate of the alcoholconcentration of the blood.However, 1.33 represents the averagealcohol ratio between the concentration ofalcohol in the blood and in the urine.'O Indeed,according to the American MedicalAssociation, the figures for the urine-bloodalcohol ratio range from 1.12 to 1.51 .'IIn a recent study of approximately 5,000forensic cases with a positive alcohol result,over 1,000 were available in whichboth blood and urine were present for comparisonof alcohol content. The overallurine to blood alcohol concentration ratiowas 1.57:1.00 with a range of 0.7:l.O upto 21.0: 1.00.'2 This extremely wide rangeof values demonstrates that a large degreeof error would probably be introduced ifa mean ratio (1.33) was used when predictingblood alcohol level from a urinealcohollevel.13Indeed, this is the position held by a majorityof the scientific con~munity.~~ It isthe majority opinion of the scientificcommunity that urine-blood conversion isnot a means by which to reliably and accuratelydetermine blood alcohol concentrationand intoxication15. In this regard,the Department of Transportation hastaken the position of discouraging urinalysisbecause of "various problems in theinterpretation of the results of analysis ofurine for alcohol which cannot be readilyovercome in law enforcement practice.'"6Abso~lion of AlcoholEthyl alcohol, or ethanol, is the alcoholcommonly found in most libations. Afteringestion, it then passes to the stomachwhere it is absorbed into the small intestine."Because of an enzyme calledalcohol dehydragenase (ADH), the vastmajority of the ethanol is metabolized bythe liver. In fact, only 3% of alcohol ingestedis excreted through the urine.18Otherwise, the blood eventually absorbsalcohol and it is passed to the brain andother organs. Urine is then formed in thekidneys by filtration and separation ofblood cells from plasma by simple diffusion.The particles that are fdtered out withwater form a liquid glomerula filtrate, orurine.19 This liquid then undergoes reahsorptionso tbat useful by-products andwater are retained by the body and hazardoussubstances are expelled. Thereafter,the filtrate (urine) passes from the kidneysto the ureter and is stored in the bladder.20Although the percentage of alcohol in aspecimen of urine as it is secreted in thekidney will provide a reasonable estirnateof the alcohol content in the blood, urinefrom the kidneys is not easily obtainable.Urine from the bladder is easily obtainable,but relating it to freshly secretedurine in the kidney is difficult."The bladder is evacuated at relatively infrequentintervals. Thus, the pool of urinefound in the bladder at any given time representsthe accumulation of secreted urinefrom the kidney as of the last emptying ofthe bladder. However, it must be rememberedthat a specimen of bladder urine onlyindicates the urine alcohol content at thetime the specimen was obtained. In thisregard, estimationof theBAC (i.e., degreeof intoxication) at a time prior to the procurementof the specimen can be extrapolated(the time of driving), provided thespecimen was taken during the time thepeak blood alcohol percentage had beenreached.However, this would only be possible ifthe test subject's absorption and eliminationrates were known at the time the specimenwas taken.22 With regard to properevaluation of a subject's absorption andelimination rates for law enforcement testing,it can be said that such rates are notknown and are continuously guessed at orreplaced by the use of average rates bystate expert witnesses.Extrapolation and Correlation ofUrine Alcohol Concentration(UAC) to Blood AlcoholConcentralion (BA C)Naturally, upon ingestion of alcohol, theblood will absorb most of it prior to thealcohol reaching the kidney and eventuallythe bladder. This is referred to as "preabsorptionphase."13 It is during this initialphase that alcohol in the blood will beof a higher concentration than in the bladderAs pointed out by researchers N. Dunnettand K. J. Kimber, the BAC reachesits peak level prior to bladder urinereaching its peak. The ratio of BAC toUAC during the pre-absorption phase isgreater than 1:1.25 If one were to sampleurine and blood simultaneously during thefirst hours after alcohol consumption, theUAC would be much lower than the BAC.Dunnett and Kimber plotted a bellshapedcurve to demonstrate the absorptionof alcohol by the body. The downwardportion of the curve represents the "eliminationphase" or "post-absorption" areawhere the BAC to UAC ratio is less than1:l and remains relatively constant. Thisis where the sampling of bladder urineshould occur.26 To determine if a subjectis in the "elimination phase," one mustwithdraw at least two samples at spaced intervals.If the second sample's UAC readingis higher than the first, the "elitninationphase" has been entered.27 However,during this phase, pooled urine may representan inflated reading as a result of urineretention.28 Richard E. Erwin's hypothetedemonstrates the possibility of skewedresults:Assume for instance that an alcoholfreesubject consunled a largeamount of alcohol. That at the endof one hour the individual's bloodalcohol concentration was .lo%. Ifall of the urine was collected andpooled within that hour's time itwould represent concentrations rangingfrom 0.0% to concentrations ashigh as 0.13%, that urine accnmnlatedat the very end of the drinkingprocess. The concentration, however,of the pooled urine specimenswould be an average of the twolevels or about 0.07%.On the other hand if you were toassume tbat a subject had been drinkingfor some time and had obtaineda blood alcohol level of 0.15% andthat he emptied his bladderjust priorOctober 1987 1 VOICE for the Deferrse 27

urinalysis procedure which, if instituted,would lend uniformity and possible wideracceptance of results.Proper PredicateThere is no case law in Texas that isdirectly on point regarding the properpredicate for the admissibility of urinalysisresults in a DWI case. However, the courtin Isaacks v. State advocates virtually thesame predicate for the admissibility ofurine tests detecting controlled substancesin urine (the "EMIT" test4'), as the courtshave held for breathalyzer tests for alcohol.The common law proper predicate foradmissibility of test results in the breathalyzerexam consists of the following:I) the use of properly compounded chemicals;2) the existence of periodic supervisionover the machine and its operation byone who understands the scientifictheory of the machine; and,3) proof of the results of the test by awitness qualified to interpret the result~.~*Therefore, it seems likely that courts willrequire a similar predicate for DWI urinetesting.ConsentConsenf Under StatuteAs is set out in V.T.C.S. 67011-5 $1:Any person who operates a motor vehicleupon the public highways or upona public beach in this state shall bedeemed to have given consent, subjectto the provisions of this Act, to submitto the taking of one or more specimensof his breafl~ or blood for the purposeof analysis to determine the alcohol concentrationor the presence in his bodyof a controlled substance or drug if arrestedfor any offense arising out of actsalleged to have been committed whilea person was driving or in actualphysical control of a motor vehiclewhile intoxicated. Any person so arrestedmay consent to the giving of anyother type of specimen [i.e., urine] todetermine his alcohol concentration, buthe shall not be deemed, solely on thebasis of his operation of a motor vehicleupon the public highways or upona public beach in this state, to havegiven consent to give any type of specimenother than a specimen of his breathor blood. [emphasis added]This statute provides that consent is"deemed" to have been given only withrespect to a blood or breath sample. Anyrequest by the state for the taking of otherbody specimens, i.e., urine, requires the-press consent of the arrestee.Colisenf Under Case LawIn regard to Section 1, the focal pointfor defense counsel ought be the issue ofwhether actual consent was given andwhether the DWI suspect was under arrestat the time of urine specimen removal.It has been settled that there is no violationof one's constitutional rights by thetaking of bodily fluids.45 In the context ofa DWI case, the taking of a bodily fluidis not an unlawful search and seizure underthe Fourth Amendment to the United StatesCDLPITCDLA Tentative Meeting and Course ScheduleApril 7-8, 1988CDLP FEDERAL CRIMINAL LAW1987-1988 SEMINARSouth PadreOctober 15-16, 1987(4:WJ.W CDLPl5:W-6:W TCDLA)CDLP SKILLS COURSE1 December 12, 1987 Aprll21-22, 1988LEGISLATIVE UPDATE (Board Mceting 10:W-nwn) TCDLA DWI SEMINARSan Antonio (Four Seasons Hotel) Austin San AntonioOctober 16, 1987CDLP EXECUTIVE COLMMITI'EEMEETINGFOUR SEASONS HOTEL,SAN ANTONIO4:W-5:W p.m.October 17, 1987FOUR SEASONS HOTEL,SAN ANTONIOJanuary 9, 1988NOMINATING COMMITI'EEMEETINGLake McQoeeoey-San AntonioJanuary 14-15, 1988CDLP FEDERAL CRIMINAL LAWSEMINARDallasApril 23, 1988TCDLAICDLP EXECUTIVECOMMITTEE MEETINGSan AntonioTCDLA Board MeetingMay 2-6, 1988CDLP CRIMINAL TRIALADVOCACY INSTITUTEHuntsville9 W-10.00 a.m.TCDLA Executive Committee Mccting February 12, 1988 June LO, 19881O:W-I0.W a.m. CDLP DWI SEMINAR TOBE ANNOUNCEDTCDLA Board MeetingCorpus ChrisfiJune 9-11. t988November 19-20, 1987SBOT CONVENTIONCDLP SKILLS COURSE1 Fcbruary 24-27, 1988 For1 WorthLEGISLATIVE UPDATE TCDLA SPRING SEMINAR TCDLAICDLP Exewlwe Committee Meet~ngOdwa Wen Orleans) TCDLA Annual Board Meeting(out of state)December 10-11-12, 1987CDLP JURY SELECTION SEMINARAustin (% day on 12th)TCDLA Board Meeting July 15, 1988TCDLA Executive Commillec MeetingCDLP SKILLS COURSECDLP Executive Commillce MeettngCollege Statcon or BryanDecember I I, 1987 March 18, 1988 August, 1988TCDLAlCDLP EXECUTIVE CDLP SEX CRIMES SEMINAR CDLP SKILLS COURSECOMMITTEE MEETING El Paso LongviewOctober 1987 1 VOICE for the Deferlsc 29

IConstitution and Article I, Section 9 of theTexas Constitution.In Aliff v. State.46 the warrantless seizureof a blood sample requested by an officerof the state, was permissible where probablecause existed along with exigentgrounds, i.e., rapidity of alcohol dissipationin the blood. In Rodriguez v. St~fe,~7the Court of Criminal Appeals additionallyheld that the taking of bodily samples, includingbreath samples, does not fall undera testimonial communication protected bythe privileges against compulsory selfincriminationunder either the state orfederal Constitution or under the seminalUnited States Supreme Court decision ofMiranda v. Ari~ona.~gNotwithstanding the fact that a suspectmay not invoke his Fifth Amendment protectionagainst self-incrimiuation on thegrounds of Mironda's safeguards as a basisfor refusal to take a breath or blood sampleto determine alcohol concentration, theCourt of Criminal Appeals has stated thatthere are constitutional andlor statutoryprotections still available.More specifically, the court held inMcCnmbridge v. State, that "[dlue processconcerns could be involved if the policeinitiated physical violence while administeringthe test [or] refused to respect areasonable request to undergo a differentform of testing, or responded to resistancewith inappropriate force . . ." upon thesuspect's refusal to take an exam.49Although constitutional grounds may notcome into play upon the taking of a sample,upon the suspect's arrest, statutoryprovisions under Article 67011-5 may takehold and offer the suspect the needed protectionfrom specimen taking.Case law clearly holds that the seizureof bodily fluids, as urine, without the consentof the suspect at the time of his ar-rest, is a non-consensual seizure. In thecase of Darland v. a non-arrestcase, the defendant was followed by apolice officer into a hospital restroom,whereupon the officer placed a styrofoamcup in front of the defendant as he urinated.At the time of the taking of the sample, thedefendant did not consent or object to thetaking of the urine. The officer then hadthe urine specimen tested in a policelaboratory. The court held that at the timeof the taking of fhe urine specimen, thedefendant was not under arrest and that,therefore, the sample taken was admissibleeven though there was no express con-sent.51In McKenna v. Stafe, a case in which thedefendant had been arrested and did notexpressly consent to the urine specimencollection, the court held the results inadmissibleon the ground that the policeviolated the defendant's statutory rights, asprovided in Article 67011-5, by taking theurine sample without his consent.52Relevancy v. the Danger ofUnfair PrejudiceUrinalysis test results, to be admissible,are subject to our rules of evidence.Evidence is admissible, if for the mostpart, it is considered relevant. As is set outunder Rule 401 of the Texas CriminalRules of Evidence, evidence is deemedrelevant if it has ". . . any tendency tomake the existence of any fact that is ofconsequence to the determination of the actionmore probable or less probable thanit would be without the e~idence."~~ Inother words, does the evidence possesssufficient value to justify its acceptanceinto evidence?The relevancy of evidence is the existenceof the relationship between the itemoffered into evidence and what it tends toestablish. Query: Does the evidence offeredtend to prove what it additionallysought to provide?Furthermore, one can extrapolate thatthe evidence introduced must be a fact thatis of consequence to the determination ofthe action sought to be proved. If the evidenceis not of consequence to the deter-mination ol'thc action,~thcn thc acccplanccof the item should bc denied on the groundsthat it is not relevant.Therefore, with regard to the admissibilityof urinalysis, when the test resultsare offered into evidence this questionmustbeposed: Does the evidence tend to provethe matter sought to be proved? In otherwords, is the urine test result relevant toshow the sobriety or intoxication of thedefendant at the time of his driving?If the test's ability to make such a determinationis of a highly questionable nature,drawn upon logical experience and scientificreasoning, then said test should bedeemed not relevant. Accordingly, as perRule 402, Tex. R. Cr. Evid., evidencewhich is not relevant is not admissible and,therefore, the urine analysis test resultshould not be admissible. This conclusionbecomes more clear when the rules of evi-dence are coupled with scientific findings.Sufficiency of Urine Testv. Reasonable DoubtEvidence must be sufficient to supporta conviction of a defendant: The test forsufficiency of the evidence is whether anyrational trier of fact could have found theessential elements of the crime beyond areasonable doubt."Placing a high level of doubt within themind of the trier of fact is the touchstonefor acquitting the defendant. Doubt can beraised by demonstrating to the trier of factthat, at the time of the taking of the urinalysisexamination, subsequent to thedefe~zdartf's driving, that said chemicalreading was not, in fact, indicative ofdefendant's level of intoxication at the rimeofhis driving. Indeed, from a quantitativeviewpoint, the likelihood of a defendanthaving a 0.10 or greater reading at the timeof driving would be just as probable as itbeing below a 0. I0 reading.Ordinarily, sufficiency of urine evidenceargument by a defendant, based solely ona chemical test may be offset by the prosecutor'sintroduction of oral testimony,usually from the arresting However,ease law suggests that such an argument,absent officer opinion testimony,would merit a directed verdict.56In this regard, it must be rememberedthat the rate at which ethanol is oxidizedis not constant for an individual. Indeed,the rate of oxidation varies within the sameperson with time, and also from one occasionto the next. This rate of oxidationrange varies from 0.010% to 0.025% perhour.j7 Accordingly, in order to acoumulatealcohol in the body, the rate ofabsorption must exceed the rate of itselimination. When the defendant ceasesconsumption and absorptionis completed,the alcohol concentration will fall as theliver metabolizes the alcohol.58To take this one step further, when achemical test is administered, it mustalways be remembered that the text resultsdemonstrate the alcohol concentration atthe time the sample was administered andnot at the time of the defendant's driving.Therefore, with specific reference to sufficiency,the alcohol concentration at aperiod of time prior to the test, could havebeen one of three possibilities: 1) higherthan at the time of the reading; 2) the sameas at the time of the reading; or, more im-30 VQICE for the Defense I October 1987

portantly, 3) lower than at the time of thereading."Accordingly, the argument that shouldbe made by defense counsel is that at thetime of defendant's driving, his level ofintoxication was below that of 0.10. Thisis so because there is no way to detwminewhether or not the defendant was absorbingor eliminating alcohol. If the readingwas taken while the defendant was in theabsorption phase, the likelihood of areading lower than 0.10 existing at the timeof driving would he substantial; while ifthe reading was taken during the eliminationphase, the converse would be true.w",A"'."Appendix AIT. rXew~-rmmMmmmmmmAlcohol Concentration Curve (Bell-Shaped Curve)Appendix BNotwithstanding, with three possibilitiesfor application of one subsequent testresult, the measure of proof falls not onlybelow that required for reasonable doubt,but also that required for preponderancefmdings.Therefore, absent corroborating evidence(i.e., testimony of arresting officer),the measure of constitutional sufficiencyof evidence by finding intoxication throughurinalysis, beyond a reasonable doubt, cannot be met.ConclusionUrinalysis as used within the law enforcementcommunity for alcohol concentrationanalysis is neither accurate norreliable. The continued use of urinalysisas a means to determine a DWI suspect'ssobriety, or lack thereof, flies in the faceof a constitutional standard of proofbeyond a reasonable doubt. Clearly, urinalysisconducted for the purpose of determiningone's alcohol concentration isscientifically indefensible and legally insufficientto support a conviction absentofficer opinion testimony.Accordingly, it is recommended thatArticle 67011-5, Section 3, he amended todelete urine alcohol concentration as ameans by which a person can be convictedofa 0.10 per se DWI. Only by acceptanceand recognition of the shortcomings ofurinalysis testing can society be guaranteedthat an innocent citizen will not be wronglyand unjustly convicted of DWI based upon0.10 urine alcohol concentration. .*I watld like fo take this opportuniry torhmtk Gary lkichterfor his invaluable irzsightand patience, for wicltout hisassistartce thispaper would rror /lave cometofruition. Special gratitude to Emily Pattcoastfor her time and skill on the wordprocessor.1. Moenssens, Andre A,; Moses. Ray E.; Imbau,Fred E., SCIENTIFIC EVIDENCE IN CRlMlNALCASES, P. 239 (2nd Ed., 1973) (hereinafter~oenss&)2. Id. at p. 239.3. The NATIONAL HIGHWAY TRANSPORTA-'TION SAFBI'Y Al)MINIS'rKATION (NIITSA).UNI~KI) Sl'ATILS l)l%'AK'l'Ml~N'l' 012 TRANS.POK'I'A'I'ION III(;HWAY SAI'liTY PKOGRAMMANUAL NO. 8 advocates that because of thevarmus problem in interpretation of !he results ofanalysisof urine for alwhol which cannot be readdyavercameinlaw enforcem6nt practice, urinalysis todetermine slmhol cmcentralian In blood be discauraecderceot under strictlv conlmllcd conditions.. . .or fur the purpw of dcmon,trating recent inge.\iionof ~IcoIIuI. 'The NHISA accordingly holds the positimthrt chsnlicdl tats uf blood or breklh irepreferred.4. For 1984, Texas Inw enforcement agencies administered119,393 breathalyzer tests. MOTORVEHICLE TRAFFIC ACCIDENTS. D. 38 TEXASDEW. OF PUBLIC SAFETY (1984, ust tin. Texas).In 1984. DPS offered to administer 83.527 breathtcsts, 2.367 blood tat,, and28 urine trsts. A I.OOKA1'I)WI . . . ACCIDENTS, VICl'lhlS. ARKiE.S'IB,TEXAS ~))irr.01: I'unLIc sAwrY (1984.Austin, Texas).5. Article67011-5, Sec. 3(a), TEX. CODE ANN.,known as Senate Bill I (SBI), which becamc effeetiveJanuary 1, 1984, ch&bed the law in Tcxssregarding the weigh1 of scientific evidence in DWIcases. Under the old law a person was "presumed"intoxicated with a blwd alcohol level of 0.10%whereas, under SBI, a person is concluded to beintoxicated-evenifthepe~n is, in fact, uninpired,E@aciiivcMarch28,1985, SB1 was amended by alteringthedclinition ofthe ". I0 perm" per reprovisionby ddelcting the word "percent".6. Intoxication is detiied by statute at Art.67011-l(a)(Z)(b), TEX. CODE ANN. as:b) havingan almholmllcentmion of0.10 or more.House Bill No. 51 deleted thcward "percent" fromthe definition of intoricafion as it had been definedunder Senate Bill No. I (January 1, 1984).7. Winek, Charles L.; Murphy, Kathy L.; Winek,Traeey A., Ihe UnreliebiliryofUsinga Urine EIIratmlCo~~cenrmtion lo Predict a Blood Elhand Cmzmtmtlo~l,25 FORENSlC SCIENCE INTERNATION-AL 277, (1984) (hereinafter Winek).8. Urinalysis is primarily used for alcohol deternlinationand this discussion will not address urinetesting for other purpuses. However, it shauld benoted that urine testing for contmlled substances isfrequently used in probaion revxation hearings andprivate industry. One of the mast popular mechanicalsystems used is E.M.I.T. (Enzyme Multipliedtmmuno-Assay Technique). To date, in at least onecase, E.M.I.T. findingshavebeen inadmissible basedon the "Frye doctrine." See Ismckr v. Smre, 646S.W.Zd602 (Tex. App.--Houstan 114th Disl.] 1983).9. Other constant ratios of blood alcohol to othermedium are:brainlblwd0.85-0.90ll.Wspinal fluidlblwdl.III.0plasmalwhole blood 1.1-1.5lI.O10. "Average," of course, denotes a parficulardanger of wrongful canvietionofan innocent personwho does not fall within the mean.I I. Almhol ond the hprired Driver, NATIONALSAFETY COUNCIL, p. 71 (1984).12. Winek, Charles L.; Murphy, Kathy L.; Winek,Tracey A., nre Unrelabili~yof Usin8 n U~itteEthnmlCo~ice~~lmrion to Predict a Blood Eihruml Cmcelilrrios.25 FORENSIC SCIENCE INTERNA-TIONAL 277, (1984) (hereinafter Winek).13. Id. at p. 277.14. In anofher recent study, representing a minorityviewpoint, it was found that urine alcohol wncentrationmay bo used to predict blood itleohol concentrationwith confidence and reliability in the results.Wasche, June Gmnpf, Comparison of Blood andUdze Alcohol Lewis, 13:3 MIDWESTERN ASSO-October 1987 1 VOICE for tlze Defetzse 31

~(I) Continuous observation ofthe subject for a minimumperiod of time as set by the Scientific DLrectorprior tocollection ofthc breath specimenduring which period the subject must not haveingested alcoholic beverages or other fluids,reeureitated. vomited. eaten. or smoked.(appmximakly huo hours) required willbe considered part of the course.(0) In the event an operator is certified tooperate a specific type or brand ofequipment and desires to be cenified onan additional tvoe or brand of eaulo-but not limited lo thc operation of theinstrument and allidequipment and theproper reporting procedures and analysisresula.(2) The satisfactory completion of a refreshercourse ofat least four hours duration, the cantcntof which will include but not be limitedcess to the instrument and allied equipment.(3) The useofa system blankanalysis inconnectionwith the tcsting of each subject.(4) The analysis of a suitable reference sample, suchas air equilibrated with a reference solution ofknown alcohol content at a known temperature,the result of which analysis must agree with thereference sample value within the limits afk0.01% WN, or such limiu as set by theSeientificDirector. This analysis shall immediatelyprecede or immediately follow thc analysis of thebreath of the subject.(5) The results of an analysis as defined by statuteshall be expressed in terms of % W/V to the secanddecimal place as found; for eranple, 0.237%found shall be reported as 0.23%.(6) Proper and adequate records of operations,analyses, and results as stated by the ScientificDrrector shall be maintained.(7) Breath alcohol testing operators and the testingtechniqueas set fanh in this section shall be supervisedin each laboratory or agcncy engaged inbreath alcohol analysis by a Technical Supervisorhaving the minimum qualifications set forth in"10.4 of this title (relating to Technical Supervision)."~~~~~~,Sections 19.3(a)(l); 19.3(a)(2); and 19.3@)(1-5).respectively set out application, receipt and renewalof operator certification as set out below.a. Initial Certification(I) In order to apply for ccnifieationas moperatorof a breath alcohol testing instrument,an applicant must show the successfi~l conkpletianof a course of instruction approvedby the Scientific Director which course mustinclude as a minimum the following:(A) A minimum of three (3) hours of instructionan the effecrsof alcohol on thehuman body.(B) A minimum of three (3) hours of instructionan the operational principlesof theselected breath alcohol testine ~-~~~instmmcntwhich is to include:(i) A function description afthe testingmethod.(ii) A detailed operational descriptionof the method with demonstrations.(C) A minimum of five (5) hours of instruelionan Texas legal aspects of breathalcohol testing.ID) A minimam of three 13) hours of in-ing.(E) A minimum of ten (10) hours of laboratoryparticipation using appropriateequipment. Laboratory practice will includethe analysis of refcrrnce alcoholsamples, as well as thc analysis of theactual drinking subjects.(F) Time spent an requircd examinationstians to acquaint the applicant withproper operation of the new type orbrand of equipment.(2) In order to receive initial certification as anoperator of a breath alcahol tcsting instrument.an aoolicant must satisfactorilv com-lowing:(A) A written examination which shall coverthe academic or lecture materialpresented in the course of instructions.(B) A laboratory examination which shallcover acNal operations of the mstrumentand allied equipment on which the operatoris to be certified by analyzingunknown reference samples and abtainingresults on all the samples within thelimits as set by the Scientific Director.If thc correct value is not obtained,within thcse limits, on all ofthesanples,then the operator will be given a secondset of test samoles. If the correct valuehas failed the examination.(C) If an applicant fails either the writtenorlaboratory portion of the examination,after the expiration of 90 days the applicantmay request a second examination.Ifthe applicant fails thc sccondexamination,theapplicant may not requestsubsequent examinations until sixmonths have elapsed since the lastexamination.In order to be certified as an operator of abreath alcohol testing instrument, an applicantmust have established that after certificationthe operator will be paaicipating in abreath testing program that meets the requiremcntsof 619.2 of this title (relating to Approvalof Techniques, Mcthads, and Programs)and 619.9(1) ofthis titlc (relating toExplanation of Terms and Actions) and hasbeen approved by the Scientific Director.b. Renowal of Currcnt Certification. Theoperatoris required to renew certification priorto its expiration date. The minimum requirementfor renewal ofthe operator's certificatewill he:using alcoholic reference sample equipmentunder thedirect andclose scrutiny afa TechnicalSupervisor. The operator will be evaluatedon the basis of ability to:(A) Use proper techniques,(B) Obtain proper instrumental results, and(C) Pollow eslablished pmcedures includinganalysis and reporting procedures.(C) A discussion of procedural updates resultingfrom recent court decisions andleeislation.presented in the refresher course andduring the basic course of instruction.(3) The renewal of thecertificate will be deniedand the operator's current certification willbe inactivated when the operator:(A) Fails to fallow established procedures,(B) Uses other than a proper technique,(C) Fails the laboratory examination, or(D) Fails the written examination.(4) An operator who is denied rencwal will begiven the reason for failure and is not eligibleto be examined again for a period of 90days. Failure thc second and subsequent timeswkl require six months to lapse beforereexamination.or revoked.41. See Lopez v. Smte, 225 S.W.2d 852(Tcx.Crim.App. 1950).42. Flercher v. Smfe. 382 S.W.2d 931, 933(Tex.Crim.App. 1964).43. In ImoCs XI. State, 646 S.W.2d 6Q2.603 (Tex.App. 1983). the Court held that the results of an"EMIT" system test wereadmissible if it was shownthat the machine was periodically checked for accuracyby one who understands its scientific theory,and prwf must be offered by a qualified expert to~ -interpret the results.44. Cody v. Smre, 548 S.W.2d 401 (Tcx.Crin1.App. 1977). The court in this instance revcned a DWIconviction hccause the breathalyzer operator failedto fulfill the necessary predicate. Bar see Mdlnn v.Sfole, 668 S.W.2d 427 (Tex.App. 1984).45. Srl,nwber v. Cnlifon~in, 384 US. 757 (1966);McKe,mn I,. Srore, 671 S.W.2d I38 (Tex.App.-Houston 1984).46. Al$n Sme, 627S.W.2d 166. 168 (Tex.Crirn.Aoo. 19821: SeePesbrn I,. Sfare. 676 S.W.2d 122.~T&.~rim'.koo. ..1984) (en band47. Rodriguez il. ~&,'63l S.W.Z~ 515,517 (Ter.Crim.App. 1982).48. Mirmda v. An'rono, 384 US. 436 (1966);McCa,nbridge v. Smte, 712 S.W.Zd499, 504 fn. 16(Tex.Crim.App. 1986); see also South DnkoIo ,#.Neville, 459 U.S. 553 (1983); Bass v. Sfore, 723S.W.2d 687 (Tex.Crim.App. 1986); McGirtIy L,.Smre. 723 S.W.2d 719 1Tex.Crim.A~~. 1986):7ho,&s I,. Smre, 701 S.W.Z~ 653 (~exdrim.~pi.1985).October 1987 / VOICE fo~the Defense 33

Appellate Developments:"Can I Get Out On Bond While MY CaseIs On Appeal?"by John H. Hagler, DallasPerhaps the most frequently asked questionafter a defendant is sentenced is: "CanI get out on hond while my case is on appeal?"Hopefully, this article will providesome answers to that question and will providesome useful motions that can be usedby the practitioner. It is not the purposeof this article to provide an in-depth surveyof the case law, statutes, and applicableN~S.The answer to the defendant's questionis that he will most likely be entitled to bereleased on hond pending the appeal of hisconviction if the punishment does not exceedfifteen (15) years. See 44.04(a) and(b), Texas Code of Criminal Procedure.Of course, the fifteen (15) year limit explainsthe familiar prosecution argumentasking the jury to assess punishment atfifteen years and a day. [An exceptionexists when the defendant is convicted foran offense listed under Section 4.012(b),Texas Controlled Substances Act (i.e. arepeat drug offender); also, under Article44.04(c), Texas Code of Criminal Procedure,the trial court may deny bond "ifthere then exists good cause to believe thatthe defendant would not appear when hisconviction became fmal or islikely to commitanother offense while on bail."]The second question most frequentlyasked by a defendant is whether he can stayin the county jail during the appeal or whilehe is attempting to raise the funds neededto post an appeal bond. Theanswer to thissecond question is that he must be transferredto the Texas Department of Corrections(T.D.C.) if his sentence exceeds tenJohn H. Hagler +va$ formerly an AssistantCity Attorney for Dallas and was anAssistant District Attonley in Dallas Courrtyfrom 1972 to 1983. Since that date hehas been in private practice in Dallas.(10) years. See Article 42.09, Section 4,Texas Code of Criminal Procedure. On theother hand, if the sentence is ten (10) yearsor less, the defendant can stay in the countyjail unless he requests in open court or bywritten motion to he transferred. In thisrespect it is important to advise the defendant(who has received ten years or less)that, if he requests to be transferred toT.D.C. and he is transferred, he cannotlater be released on hond pending the appeal.See Article 42.09, Section 4, supra.However, a defendant, who received fifteenyears or less but more than ten yearsand was involuntarily transferred toT.D.C., can he bench-warranted hack tothe sentencing court and an appeal bondcan he posted.Setting of the Appeal BondThe first step in securing the release ofthe defendant is to file a motion with thetrial court requesting that a reasonablebond be set. A suggested motion is asfollows:NO.THE STATE OF TFXAS ) IN THR JUDlCUL2. Under the provisions of Article44.04, Texas Code of Criminal Procedure,the Defendant is entitled to he released onreasonable bond pending the determinationof the appeal.3. In ExparteDavila, 623 S.W.2d408(Tex.Crim.App. 1981) thecourt listed therelevant factors in setting a bond pendingappeal. They are:a. the punishment assessed;b. the nature of the offense;c. the defendant's work record,family ties, and length of residency;d. ability to make the bond;e. conformity with previous bondconditions; andf. other outstanding bonds.4. In the present case (1) the Defendantwas convicted of a non-violent crime; (2)sentence was assessed at(3) the Defendant has no prior criminalconvictions and bas no pendingcases; (4) the Defendant has strong ties tohis family an*(5) the Defendanthas limited financial resources, and(6) the Defendant has had no prior hondforfeitures.5. The Defendant has limited financial\'S1 resources, hut can probably post a -I DISTRICT COURT OFbond. It is questionable if hecani counru. TEXAS post an appeal bond in a greater amount.WHEREFORE, PREMISES CONSID-MOTION TO SET BOND ERED, the Defendant respectfully requestsPENDING APPEALthat the Court conduct an evidentiary hearingand that, at the conclusion of th& bear-TO THE HONORABLE JUDGE OF ing, the Court set the appeal bond in theSAID COURT:amount ofNOW COMES, the Defendant, by andthrough his undersigned attorney, andRespectfully submitted,respectfully requests that the Court set areasonable band in the foregoing cause andwould show the following:ATTORNEYFOR1. On the Defendant was DEFENDANTconvicted of the offense ofand punishment was assessed at - ORDER. On the Defendant IT is the ORDER of this Court that anfiled a notice of appeal.evidentiary hearing will be held on the34 VOICE for the Defense I October 1987

day of1987, at o'clock. M .ENTERED on this the day of, 1987.JUDGEDuring the evidentiary hearing, the Defendantneeds to present testimony in supportof his request for the setting of areasonable appeal bond. Such testrmony isnecessary in the event that the trial courtsets an unreasonably high bond. The orderof the trial court setting the amount of thebond is now an appealable order. See Article44.04(g), Texas Code of Criminal Procedure.However, in order to perfect theappeal, a written notice of appeal must befiled. Once the notice of appeal is given,the statement of facts of the bond hearingmust be sent to the appellate courtwithin fifteen (15) days. See Rule 44(a),Texas Rules of Appellate Procedure. Eventhough such a bond case is given preferenceby the appellate court, it often takes4-8 weeks for a decision to be rendered bythe court after the record is filed. Also, adecision by the Court of Appeals is subjectto review by the Texas Court ofCriminal Appeals. See Rule 44(d), supra.Appeal Bond After a ReversalAs previously mentioned, a defendant isnot eligible for release on bond pending theappeal if his sentence exceeds fifteen (15)years. However, if the Court of Appealsreverses the conviction, adefendant is entitledto the setting of an appeal bondregardless of the length of the confmement.See Article 44.04(h), Texas Code of CriminalProcedure. Therefore, it is imponantto immediately notify a defendant of hisright to have such an appeal bond set. Asuggested motion to be fded with the Courtof Appeals is as follows:NO.IN THECOURT OF APPEALSSUPREMEJUDICIAL DISTRICT, TEXASAppellantVS .THE STATE OF TEXAS,AppelleeMOTION TO SET AN APPEAL BONDTO THE HONORABLE COURT OFAPPEALS:COMES NOW the Appellant in theabove styled cause, by and through hisundersigned attorney, and fdes this Motionto Set an Appeal Bond pending final determinationof the appeal pursuant to Article44.04(h), Texas Code of Criminal Procedure,and in support thereof would showthe following:I.The Appellant was convicted for the offenseofand the juryassessed punishment at years.[See Cause No.fromthe Judicial District Court ofCounty, Texas.]The Court of Appeals reversed the convictionin Cause No.on the ground thatThe trial court fde reflects that the pretrialbond was set atThe attorney for the State does not opposethe setting of the appeal bond in thatamount.11.The Appellant has been in continuouscustody since. It is theunderstanding of the undersigned attorneythat the Appellant has limited resources butcan post a bond in the amount set forthabove.WHEREFORE, PREMISES CONSID-ERED, the Appellant would move that areasonable bond he set in this case.Respectfully submitted,ATTORNEYFORAPPELLANTSince the Court of Appeals has little informationto assist it in the setting of the appealbond, it isimportant to set out specificfacts in such motion. Of course, an agreedmotion with the State would he the mosthelpful to the Court. Secondly, the amowtof the bond prior to the trial would givethe Court some guidance in the setting ofsuch bond.It is hoped that the foregoing informationwill provide the practitioner withsome general rules of thumb in advisii~ga defendant regarding his release pendingappeal. 4SENTENCING ALTERNATIVEPLANNINGOur Defense Pre-Sentence Investigations and Reports:0 Carry favorable weight in the sentencing decisions of85% of the judges who read them.0 Minimize potential post-conviction problems0 Incorporate anticipated changes in federal and statesentencing practicingInclude a sentencing recommendation and, when ap-~ropriate, alternatives to incarceration--Sentencing and Parole ConsultantsNational Legal Services71 0 Lake View Avenue, Atlanta, GA 30308Call now: 1-800-241 -0095October 1987 1 VOICE for the Defense 35

Appeal by VideotapeKentucky's Amazing Experienceby Justice Jim Brady, Austin Court of AppealsCost of the record on appeal will beslashed 90% or more if Texas adopts theKentucky system of videotaped "statementof facts." Time savings are fantastic aswell. Space savings in our overloadedclerk's offices will be tremendous. Equipmentcosts will pay for itself in a year.Trial judges can have that secretary orbriefing attorney they have always wanted.Imagine having a couple of small VCRcassettes which will contain the entire trialrecord from voir dire to final arguments.State-of-the-art video equipment is beingused in other jurisdictions including Florida,North Carolina, Washington State aswell as in Kentucky.For approximately three years, the trialcourts of Kentucky have experimentedwith videotaping of both jury and non-jurycivil and criminal trials. The record on appealis ready immediately upon completionof the trial and reaching of the verdict bythe fact finder. No delays in waiting forweeks or months for a court reporter's typingof a long fact statement. Savings ofhundreds of dollars per appeal are proofof the value of the new system.Appellate judges instead of pouring overvolunies of trial testimony, simply turn ontheir videotape player, push in a cassette,and hy means of calibrated trial log canview instantly portions of the recorddesired. Your writer, having reviewedseveral cases by this method, echos thestatement of Chief Judge J. WilliamHowerton of the Kentucky Court of Appeals,that "video is here to stay."Every lawyer m Texas has fumed andfussed about delay in obtaining a "Statementof Facts" fmm the busy conrt reporter.Every trial judge has wished he could havean immediate transcription of the testimonyor events which had occurred earlier in thetrial. Every appellate judge has spent hourupon hour with his desk piled high withone to ten volumes of testimony, most ofwhich was not needed at all and did notaffect the outcome of the appeal. All thiswill now be a thing of the past when Texascourts come into the 20th century and followthe lead of the Commonwealth ofKentucky!Texas will soon drown in the flood oflitigation. By the year 1990, new civil andcriminal case filings and appeals will increaseimmensely.According to the Officeof Court Administration's 10th AmualReport, there were 1,200,000 cases pendingin our trial courts at the close of 1986.district and County Courts-At-Law disposedof 1,174,512 cases in 1986, ofwhich nearly 7,600 wereappealed. The 14Texas Courts of Appeal handled nearly8200 cases last year, over 102 per justice!The Texas Supreme Court kept pace withsome 2,160 dispositions, and stillhad some350 appfications for writ of error pendingat the end of 1986.It doesn't take a degree in highermathematics to realize that by the year2000, Texas may have to double the numberof trial and appellate courts just to keepeven with the litigation explosion. Use oftoday's technology is the only hope wehave to solve this growing problem. Criminalcase filings have shot up as much as37% in some Texas counties includingJefferson and Nueces. San Antonio had a25% increase in criminal cases filed in1986, with other major metropolitan areasnot far behind.Presently our 374 district courts ofTexas handle an average of 1,625 cases perjudge per year! The money saved by theuse of videotape would be sufficient foreach district court in the State to haveeither a full-time secretary of briefing attorney,or both. The recent videotape"Justice for Justice" produced by the StateBar of Texas, compels every lawyer andjudge in Texas to take a close hard lookat the Kentucky experience. As stated byJustice Robert M. Campbell of the TexasSupreme Court, the trial courts in Texasare operating just like they did 150 yearsago, with one judge, one court reporter andone bailiff. Modern state-of-the-art equipmentsuch as videotape, audio recordings,or the CAT system (computerized augmentedtranscription), although available.are not used. As Justice Campbell pointsout, less than one-third of one percent ofour entire state budget goes to the thirdbranch of government, our judicial system!Such a scandal is staggering. As ChiefJustice John Hill stated: 'Tf Texas citizensknew about these facts, they would rise upand do something about it before it is toolate."In addition to all the statistics publishedby the Office of Court Administration inits fiscal 1986 report, the 950 Justice of thePeace courts handled over a million and36 VOICE for tlte Defense 1 October 1987

one half cases. In the 847 cities which havemunicipal courts, there were over 5 millioncauses disposed of during 1986. Hereis the entire list:CourtCauses Dispobed OfTexas Supreme Court 2,169Texas Courts of Appeals 8,161Texas Court of Criminal Appeals 3318The 374 Texm District Courts 607,571The Texas County Court-At-Law 566.941Justice of the Peace 1,174,512Texas Municipal Courts 5,390,860Total is over 7% million causes, enoughto scare the pants off of all of us! Theseare based on published statistics of theOffice of Court Administration.Unfortunately, there will he some lawyersand judges who will resist change ofany kind. Technical improvements such asthe videotaping of trials, audio taping nowexperimentally in use in Dallas, and thenew CAT system all offer advantages overour 150-year-old system of trial courtreporting. Time is of the essence. Texasmust he willing to come into the 21st century,or we will he dragged there kickingand screaming. Now is the time for action.We can wait no longer.Living in sunny Galveston and travellingthroughout Texas and the rest of the statesleads me to want to discuss with thereaders of the Voice an ever present concernof mine. Let's face it folks, jury selectionis our number one hope for a fairtrial-whatever that means. Perhaps itmeans 2 or 3 open-minded jurors or oneor two jurors that have had enough lifeexperiences to not judge someone tooseverely just because they've erred in theirjudgment. What it certainly doesnot meanis the presumption of innocence or theburden of proof, because anyone that hasever wandered into the hallowed caurts ofjustice knows that those are beautiful mythsin 1987.If I could wave a wand and make it allthe way it is supposed to hein courtrooms,I would. If I could wish one thing for youoverworked and poorly compensated criminaldefense lawyers, it would be that youstarted your cases with fair minded citizensthat wanted to listen to your case withoutreflecting on peer or family pressureshould they say the most beautiful wordsin the English language, "Not Guilty".Unfortunately my bag of skills does notpossess a magic wand and I, as you, amleft with my human instincts and the perseveranceto continue insisting that ourclients have the right to a jury that will givehim or her a fair shake.Perseverance, you say, we have plentyof that. We work hard on our cases, seeour clients, and collect the law to presentto the court. Yes, that is one form ofpersevering, I am directing my efforts toencouraging you to go a step further. Thiscolumn generally gives ideas to the ctimrnalpractitioners of Texas on voir direquestions, questionnaires, the law of juryJury Selection-Theby Caihy E. Benneffselection and other related matters. Thisissue I want to crawl up on my old woodenstump and suggest we gather our forcesand fight for better jury selection procedures.It's our responsibility to our pmfessionsto see to it that legislation issupervised and that we have lobbyists thereto voice our concerns that the jury systembe returned to its original intended form.We must file every appropriate motionthat urges the court to allow adequate timeto uncover juror bias and predisposition.We must at a local level meet with otherfolks, engaged in criminal defense work,to see how to improve jury selection proceduresin our own communities. One simplething that needs to be addressed is whatjurors are being told upon first entering thecou~thouse. It has always bothered me toread the jury brochures that the jurors aregiven. Nowhere in the brochures does theorientation hook discuss that jurors are tobe open and honest during jury selectionnor does it tell jurors that the only goodjuror is the honest one. Weneed to get betterbrochures that represent the real flavorof voir dire and its true meaning.The problem with most of us, when tryingnew things that have not been pressedfor in our own backyards, is that manytimes we duck our responsibilities by saying,"It is not done that way in my jurisdiction"or "You don't know the judges inmy county, they won't stand for that".Really these arc just words to avoid takingthe courageous approach to representation.My experience has always beenthat most good ideas are successful, at leastin part, if we simply ask for them in acourteous, well thought-out, assertive way.Evenjudges will listen and coue administratorswill think thmugh their proceduresVoice Listenswhen directly confronted with sound ideas.Yes, this is a little sermon on our obligationsto seek expanded, open-ended wirdire, but also, to view the advocate's roleas more than the brilliant cross-examineror orator. The jury is everything to thoseof us that live our lives in the courts. Allmatters from legislation affecting peremptorychallenges or wir dire conditions tothe jury brochures to pre-jury selectionmotions are all a part of seeking to improveupon our quest for fair juries. This alsoincludes attending educational seminars,such as those put on by the CriminalDefense Lawyers Project and others,which help us join with our friends to sharecommon ideas about how we can he therefor each other and exchange ideas with oneanother. Let's work at giving of ourselvesso that we can more effectively he ourclients' shields.I will step down off my stump now andappreciate each and every one of you forall that you have given to justice, yourclients and me. I value and applaud yourefforts for what is right and good.Please write us with your ideas for suhjectsyou would like to see addressed infuture articles.Thanks and may you have many openendedjury selections.Your friend,Cathy BennettAddress correspondence to:The Voice ListensC/O Cathy E. Bennett & Assoc., Inc.2215 Ave. LGalveston, Texas 77550October 1987 1 VOICE for the Defense 37

CLE: Last month this space was devotedto the Criminal Defense Lawyers Project,TCDLA's funded CLE program. As thiscolumn was being written, the Governor'sCrlminal Justice Division notified us thatwe received funding for fiscal year 1988in the amount of $153,906. The continuinglegal education continues for anotheryear.CDLP's entire course schedule will bepublished in the Voice on a regular basis,but the next three courses are as follows:state law practice skills courses in SanAntonio, October 15-16; in Odessa, November19-20 and a trial advocacy institutedevoted entirely to jury selection onDecember 10, I1 and 12 in Austin. TheSan Antonio skills course will be followedby CDLP and TCDLA executive committeemeetings and a TCDLA Board of Directors'meeting on Saturday, the 17th;course and meetings will be at the FourSeasons Hotel. Plan to attend the courseand the board meeting. All members ofTCDLA are welcome and encouraged toattend the Board of Directors' meeting.Right Stuff: For the past few years JackZimnlermann and Jim Lavine, Zimmermann& Lavine, P.C., have defeuded afactually innocent capital murder defendantin Oklahoma, who was originally defendedby an Oklahoma lawyer, found guilty andseutenced to death. Zinunermann's applicationfor writ of habeas corpus wasgranted in Federal District Court and thecase went up through the federal courts tothe US. Supreme Court and hack to theOklahoma courts with the defendant beingstyled as "appellee"; an unusual if notunique situation in a capital murder case.On July 30, 1987 the Oklahonla CountyDistrict Attorney moved to dismiss thecharge and recall the warrant. Althoughthe dismissal was without prejudice, itseems unlikely that the state of Oklahomaw~ll be able to bring the case again, in factthe Oklahoma County District Attorney'soffice probably hopes they've seen the lastof Jack Zimmermann and Jim Lavine.Good lawyering.Meantime, Gerry Goldstein and RalphLopez have had some success of their ownin obtaining an acquittal in a murder casein August; details next month.and Around Texasby John BostonRecently, Dain Whitworth wrote aresponse to an editorial in the GalvestonDaily News, which was entitled, "Justicedenied in an Appeals Court Ruling?"(Saturday, August 15, 1987 edition). Ms.Betsy Webber, business editor of theDaily News wrote, commenting on the reversalof David Port's conviction obtainedby Jack Zimmermann, " . . . once more, itseems justice has been denied to protect therights of a confessed killer." Dain Whitworthwrote some worthwhile responsesto Ms. Webber's, and a condensed andedited version follows: The court reverseda case involving a confessed killer to protectthe rights of all Americans, includingMs. Webber, the innocent as well as theguilty. Our system has rules to protect innocentpeople from abuses by governmentagents, and to insure compliance withthose rules, the courts reverse cases whenone, or more, of those rules is violated.Without reversals there Would be no incentivefor government agents to comply withthe rules. Countries without such rules, orwhere the rules are not, or were not, enforcedwere, and are, Nazi Germany,Facist Italy; currently U.S.S.R., Iran, andother totalitarian or authoritarian nations.The real meaning, then, of a reversal isthat the police or prosecutor did not act inaccordance with the rules and the law.With a few exceptions, the accused can betried again. If we adopt the attitude thatviolations of the rules are mere technicalitieswhich should be disregarded, wegive up the protection of the rules whichare what guarantee our individual libertiesand distinguishes our government fromothers. Only a small percentage of casesare reversed w~th the defendant set free,so when we are confronted with a reversal,we should view it as a necessary elementof individual freedom.Might Stuff: Recently, a non-lawyerfriend of mine asked my opinion of Lt.Col. Oliver North. My friend was awarethat I am, and have been for some years,a Marine reserve officer and spent time onactiveduty as well. To his surprise, I think,I was somewhat negative about Lt. Col.North's role in Iran-Contra affair, but I hadtrouble articulating why I don't like FawnHall's former boss; except, I said some-thing about making the military look worsethan it deserves and that he appeared to bea "loosecannoo" in the National SecurityCouncil. But since that conversation, I'vethought about the problems officials likeOllie North and John Poindexter create,listened to radio and TV commentators,read a few articles on the subject and arrivedat the conclusion that Lt. Col. Northis subversive, not "a subversive", as anoun, but as an adjective. The reason isthat he and his ilk; Poindexter, Secord, elal; subvert the purposes of the US. Constitutionby their actions in obtaining questionablefunding for the Contras. The Presidentand his administration have the powerof the sword, the Congress has the powerof the purse, thus-checks and balances.When members of the administration raisefunds from private and foreign sources tocarry out a foreign policy that Congresshas refused to fund, those administrationofficials subvert the checks and balancesbuilt into our constitutional form government.Ollie North for private-citizen.Appointed Colmsel: During the regularsession, the Texas Legislature passedSenate Bill 1108 which added Article1.05 1, Right to Representation by Counsel,and amended Chapter 26, Arraignment,of the Code of Criminal Procedure.Specifically, Article 26.04 now provides,inter alia, that the appointed lawyer shallrepresent the defendant until charges aredismissed, the defendant is acquitted, appealsare exhausted or the lawyer is relievedby the court or replaced by anotherlawyer. Article 26.05 now provides, interalia, that non-public defender appointedcounsel shall be reimbursed for reasonableexpenses approved by the court for investigationand expert testimony and shallbe paid a reasonable fee for in courtrepresentation of the defendant and someout-of-court preparation with documentationwhen required by the court. Appellatebriefs to the Courts of Appeals or the Courtof Criminal Appeals are now covered. Thenew provisions of Chapter 26 impose a requirementthat the county and districtjudges in each county and the administrativejudge in counties with only one criminaljurisdiction judge adopt a fee scheduleby formal action. The fee schedules must38 VOICE for the Defense I October 1987

include a fixed rate, minimum and maxi- Felony/Misd. bench trial 5001250 Special Membership Meeting in Houstonmum hourly rates and daily rates with an FelonylMisd. jury trial 1,5001750 on Saturday, August 29, the Board apappropriateform for reporting the types ofservices the lawyer performed for the in- Preparing of appeal brief 750digent client.Securing release on bail 100The Criniinal Law and Procedure Sectionof the Travis County Bar Associationhas produced a proposed fee schedule tobe presented to the Travis County Judges.It is too lengthy to reproduce in full, hutthe rates are as follows:FelonylMisd. pretrialhearing$ 25Oll25Pelony/Misd. plea,sentencing/dismissal 300/125The proposed fee schedule includes dailyrates of $500 in a felony jury trial and $250in a misdemeanor jury trial when at least5 hours is required.Expenses include $0.20 per mile, longdistance and collect telephone calls at cost,investigator and expert witness fees asapproved in advance by the court.At the TCDLA Board of Directors/proved the-follo&ng motion: ". . . thatthe Texas Criminal Defense LawyersAssociation opposes the confirmation ofJudge Robert Bork to the Uaited ysSupreme Court and the Senator's ron)Texas should be notified of TCDkA'$position." The motion hasbeen put in theform of a resolution and will be forwardedto the Senate Judiciary Committee far theirconsideration.Remember, every member get one netvmember. Thank you for your continuedSuppohBatson v. Kentuckyconlinuedfronl page 2443. 732 P.2d 1145, 1150-51 (Cal. 1987).44. Srare v. Superior Court of Maricopa Corrnr):732 P.2d 232, 235 (Ark App. 1987); Slate v.Wagdler, 489 So2d 1299, 1303 (La. App. 1 Cir1986) Seealso Cormron~yeallh v. Reid, 424N.E.2d495, 500 (Mass. 1981) (female defendant srrifungmales).45. 724 S.W.ld 58 (Tex. Crlm. App. 1987)[heremafter oitcd as Keefon 4.46. No. 69,639 (Tex Crim App. Aprd 15, 1987)(on rehearing) thereinafter cited as Keelon 111.47. Id. at 13.48. People v. R7reeler. 583 P.2d 748, 764 (Cal.1978).49. Rose v. Stnte, 4% So2d 131353.1355 (Pla. App.5 1986); Weekfy v. Store, 496 N.E.2d 29,31 (Ind.1986); Riley n State, 496 A.2d 997, la09 (Del.1985); People v. Ihompso,~, 435 N.Y.S. 2d739.754(Am. . Div. 19811.A50. The pattern of suikffi referred to appears tobe based upan the peremptory challenge practice inCaltfwn&a and Masachusetts, where prosecutorsstmke throughout thecwmeofthevoirdrre. InTexas,of course,aU stnharemade at onetime and do notlcndthemsdves to thedcvelapmenl ofspattern. See.e.g., li'heeler, 583 P.2d at 752-53; Smres, 387N.E.2d at 508.51. Balson, 106 S.Ct at 1723.52. 387 N.E.2d at 517.53. Con~~non~~,~alIlr v. Gagnon, 449 N.E.2d 686,692 (Mass. App. 1983); Seealso Wheelw, 583 P 2dat 761; conltaPeopIe v. Davis, 234 Cal. Rplr. 859,869 (Cal. App. 2d Dist. 1987) (6 of 20 challengesexcluding black. held not to raise an inference).54. United Stnles v. Wdli~gton, 782 F 2d 807,824 (9th Cir. 1986).55. Id.56. 622 F.Supp. 304 (D Mass. 1984).57. Id. at 309.58. Johnmu1 v. State, 731 P.2d 993, 998 (OklaCrrm. App. 1987); See also Pwple v. Washr~glon,234 Cnl. Rptr. 201,205-06 (Cal. App. 4 1987) (blackdefendant1Puerto Rican victlm); U.S. exmJ Kyle v.O'Leary. 642 P.Supp. 222.228 (N.D. 111. 1986).59. 511 A.2d 11% (NJ. 1986).60. Id. at 1154. 3ut see Healon v. Stale, 350S.E.2d480,482, IsOGa. App. 718 (1986). Heatanattempted to argue that although he was white, heshould beentitled to a prima facie case because hacounsel was black. Thc caun was unpersuaded.61. Cbmnonwdh v. Link-, 424 N.E.2d 504.506(Mass. 1981).62 479 U S , 107S.Cf 708,93 L Ed.2d649 (1987).63. 107 S.Ct at 711.64. Comtno,,tualth v. Gagrtm, 449 N E.2d 686,692 (Mass. 1983).65. 514 A.2d I44 (Pcnn. 1986).66. Id. at 153.67. No. 13-86044-CR (Tex. App.-CorpusChrist1 February 12, 1987) (not yet reported).68. Id. at 3; Trcvino, 704 P.2d at 730; MeeTer,583 P.2dat 764, Btilsee Rgo v. Smle, 721 S.W.2d562, 564 (Tex. App.-Amarillo 1986)69. Peo~le v Mm. 233 Cal. Rotr 153. 157(caL~pp.5 ~ist.1986); ~ursee~tore'v. D&, 6.54P.2d 612, 615 (NM App. 1983).DWI Practice Gems tratian of 0.10% or greater, this tn Itself constitutes 3.5-9.the offense. See Sckrlie v. State, 689 S.W.2d 294, 58. M , at 55-12 The figare contained in "Ap-mminued from pnge 33 296 (Tex App.-Hauston 1985). See also Forte v. pendix A" (pg. 31) is the alcohol cconfentration cum,49. The refusal to pcovide a specimen-Article Stole, 707 S.W.2d 89, (Tex.CrimApp 1986) (en showingabsorption, wand ehmtnafronphase. The67011-55(2)@)-does wt specify which type of banc). rate of ellnlinatton is greater than abrorptaon duringspecimenautomatlcally result6 in licenscsuspensian 55. In Annis v. Stnte, 578 S.W.2d 406 (Tex. the elimmatm phase, whde the rate of absorptronOf up to 90 days; Article 67011-5W)(g) ofihe statute Crim.App. 1979), the appellant argued that the ad- is greater than ehtnination during the absarptronholds that to refuse to submit to breath or blwd testing mnistratton of a dremtcal test by ltself would be in- phase.maybeintroducedintaev~denceat trial. ltk notclear sufficient to convict. Themun continued by staling 59. lbid . at Q5-13. See "Appendix B" (pg. 31)whether the refusal la sobdt a unne sample, when that defendant's ". . .argument might bemeritorious for graphics of bellshaped curvesthepeafeoffccer does nat initially offer blwd andlor if the mults afa chemical breath test were the only 60. InMuIln~z v. Slare. 648 S W.2d 427 (Tex App.brcath testlng, would trigger the suspension sections evidence of intoxication." The arresting officer in -Texarhna 1984). n chemical test was adntnusteredunder Artccie 67011-58(2)(b). Dorsche v. Slate, 514 S.W.2d 755 (Tcx.Crim.App. 45 mmutesaftertheoffense. The test results showed50. Darland v Store, 582 S.W.2d 452 1974) testified thathe formecianopinton as todefen- n 0.13 reading. Expert testnnony steed that alcohol(Tex.Crim App. 1979). dant's intoxccation pnor to and independent of the absorptcon is completed wrthtn one-half hour to one51. Id., at p. 454. chemical test. His observations, based solely an his hour of consumption. It should be noled that the52. McKeswa v. State, 671 S.W.2d 138 past experience and observed facts, I e., the defen- Depanment of Public Safety Manual states that: "As(Tex.App.-Houston 1984). dant bnng disorderly, slurred speech, "mush a geneml nde only, complete absorption of a single53. Rule 401(b) of the Texas Rules of Crlminal mulhed," red eyes, would beenough initself town- alcoholic beverage is usually aecomplishcd in fromEvidence. victthedefendant. Testimony as such usually will be 45 minutes to an hour, with an~)nptjsro)nach." [Em-54. Iriorl v. Smfe, 703 S.W.2d 362 (Tex.App.- the death knell for the defendant. phasis added.] 55.5. The showing of absorption andAustin, 1986); G~'.II v. Stale, 614S.W.Zd 155, 159 56. Awlis v: Smte, p. 407. ntedahhc rates, along with oral testimony, enabled(Tex.Crim.App. 1979). Case law holds that once it 57. Taus Depamrenr of Pub& Snfly, TEXAS the jury to judge thcvalldlty of defemdnl'r dam of1s shown rhaf the defendant had an alcohol concen- BREATH ALCOHOLTESTING REGULATIONS ha not bemg rntoxrcated at the tune of driving.October 1987 1 VOICE for the Defense 39