Dane Whitworth. David Sheppard, Ruth Ellen Gura and Gerry orris ...

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On August 21, 1987, the Court of Appeals for the 5th Circuit placed its imprimatur of approval on the practice of calling informers who are being paid a contingent fee as witnesses for the Government in the trials of criminal cases within this Circuit. United States v. Cervantes- Pacheco, F . 2 d (5th Cir., #84-2687: decided Aueust ., 21. 1987) In its en banc opinion, the Court specifically overruled Willian~son v. United States, 311 F.2d 441 (5th Cir., 1962). In Williamson, the Court had established a per se rule that an informer paid a contingent fee cannot be a competent witness. As the Court pointed out in Cervantes-Pacheco, however, the Court had not reversed a conviction based on that per se rule since its Williamso~~ decision. In Cervantes-Pacheco, the Court was confronted with this fact situation: Appellant had participated in "an active criminal enterprise engaged in importing marijuana from Columbia into the United States." The Government had an informer who had earlier worked in more than 35 cases. At the Government's request, this informer infdtrated the Cervantes-Pncheco organization, furnished certain evidence to the Government and testified in the trial of the Appellant. The informer's compensation from the Government "included a per diem, expenses, and apayment at the conchtsion of the case based on the Government's evalaatior~ of his overall performance." (Emphasis added) Although the amount of the fee was to this extent contingent, it did not depend upon the arrest or conviction of the defendant or upon the outcome of the case. On appeal, the case was first argued before Circuit Judges Goldberg, Williams and Davis. In its first opinion of July 7, 1986, found at 793 F.2d 689 (5th Cir., 1986), the Court reversed. Judge Davis dissenting, and remanded for a new trial. Judge Goldberg concludes his opinion with this inspiring language: "We conclude on the basis of the 42 VOICE for the Defense I November 1987 The Federal Corner by F. R. "Buck" Files, Jr. F. R. (Back) Files, Jr. has been in the privatepractice of law irr Tyler since 1970 and is with thefirm of Bain, Files, Allen and Caldwell, P. C. Hispractice is limited to the representation of defendants in criminal and civil rights nmtters. Before enter- ing private practice. he prosecuted and defended ~nilitary courts-martial for the U.S. Marine Corps (before they had a JAG) and served as a First Assistant Crirn- inal District Attorney in Smith Corrn/y. Certified as a criminal law specialist since 1975 and a charter member of the Texcrs Criminal Defense Lawyers Associa- rion, he is a frequent lectrrrrr at CLE corrrses sponsored by the State Bar of Texas and the CDLP. of the Government's main witness, informant Kelly, is inherently un- trustworthy and should have been excluded as such. We find no error in the trial court's handling of the conspiracy issue; but on the contingent fee issue we reverse and remand foregoing analysis that the testifiony the case to the district coud for a new trial. One of the basics of our jurisprudence is the search for truth, and by this is meant not the purchased truth, the bartered-for truth, but the unvarnished truth that comes from the lips of a man who is known for his integrity. A corollary of our search for truth, a component thereof, is that the plaintiff or defendant, prosecution or defense, as the case may be, vouches for the truthfulness and the integrity of its witnesses. The government in its prosecutorial efforts should be like Caesar's wife, above or beyond reproach. At the very least, the court must tell a jury that the words of a witness have been in a sense purchased if he will be paid, more or less, depending upon how effective his putative truthtelling sells itself to the jury. It may be that we must live with informers. It may be that we must live with bargained-for pleas of guilty. But we do not have to give a receipt stamped "paid in full for your damaging testimony" or "you will be paid 'according to how well you can convince the jury even though it be in the face of lies. It is true that the precedents we cite are iid in their approach to this problem, fearful that somehow the condemnation of contingent fee arrangements will destroy our criminal justice system. If that be true, then our system of finding the truth is pallid and weak and not to be trusted. Trustworthiness is a keystone and a hallmark of any judicial system that seeks recognition for its role in a civilized society. The time has come to announce boldly and firmly that our juridical search for the truth cannot be reconciled with the virtual purchase of perjury." conrinrred mi page 48
Warren N. Abram 2995 LBJ, Suite 119 Dallas, Texas 75234 (214) 484-7330 ENDORSER: Rick L. Cohen MEMBERSRIP DATE; Iu~e 24, 1987 Kerri K. Anderson 1465 W. 2nd Avenue, St.?. 110 Coraicana, Texas 75110 (214) 8724888 ENDORSER: Jimmy Morris MEMBERSHIP DATE: May IS, 1987 Willord A. Anderson 1314 Texas Avenue, Sle. %I2 Houslon, Texas 77WZ (713) 222-1055 ENDORSER: Bill Hahrn MEMBERSHIP DATE: July 14, I987 Tom Autry 505 W. 12th Street Austin, Texas 78701 (512) 476-8700 ENDORSER: David L. Botshnd MEMBERSHIP DAIE: June 1. 1987 Luis M. Avile 820 Avenue H Lubbk, Texas 79401 (806) 763-5847 ENDORSER: B~ll Wischkaempcr MEMBERSHIP DATE: July 14, 1987 Douglas M. Barlow 485 Milam Beaumont, Texas 77701 (409) 838-4259 ENDORSER: Joseph C. Hawthorn MEMBERSHIP DATE: May 18, 1987 David A. Benavides 201 N. St. Mary's Street San Antonio. Texas 78205 (512) 226-3121 ENDORSER: Charles D. Butts MEMBERSHIP DATE: June 9, 1987 Carla Bennett 3400 Timmons Lane, ffi7 Houston, Texas 77027 (713) 655-2766 ENDORSER: John C. Bwon MEMBERSHIP DATE: June 24, I987 Kenoeth R. Bennett 2MX) Washington Waco, Texas 76710 (817) 753-0913 ENDORSER: Ralph T. Slrnlher MEMBERSHIP DATE: Iuly 28, 1987 Lisa Donaldson Be~nett 1W N. Sixth, Ste. 300 Waco, Texas 76701 (817) 754-0122 ENDORSER: Charles M. McDonald MEMBERSHIP DATE: August 5. I967 Carol Birdwell I701 River Run Rd., Ste. 9W Fort Worth, Texas 76107 (817) 332-1941 ENDORSER: Jeff Keamefr MEMBERSHIP DATE: July 10, 1987 G. Patrick Black ARS . -- Miism . - . - Beaumont, Texas 77701 (409) 838-3969 ENDORSER: Joseph C. Hawlhom MEMBERSHIP DATE: May 18, 1987 Matthew Blair P.O. Box LO133 Midland, Texas 79702 (915) 686-0292 ENDORSER. Jeffrey Hinkley MEMBERSHIP DATE: May 21, 1987 Lawenre G. Boyd 4627 N. Central Expxwy. Dallas, Texas 75205 (2 14) 528-2400 ENDORSER: Tm Evans MEMBERSHIP DATE: August 28, 1987 Vhecnt D. Csllahan 442 Dwyer San Antonio, Texas 78204 (512) 2266808 ENDORSER: George Scharmen MEMBERSHIPDATE: May 15, 1987 Bill Adkb Camp IWI Texas Ave., Ste. 500 Houston, Texas 77002-3195 (713) 236-9433 ENDORSER: Jeff Hinkley MEMBERSHIP DATE. August 4, 1987 Eduardo Canas 1 lo7 Main Lubbrrk, Tcnas 79401 (806) 747-4583 ENDORSER: Mark C. Hall MEMBERSHIP DATE; Augusl J. C. castill0 9W Fennin, Suite 1515 Houston. Texas 77010 (713) 655-1515 ENDORSER: Candelario Bliwndo MEMBERSHIP DATE: April 27, 1957 M. Lynn Chamberlain I410 S. Big Spring, Ste, #3 Midland, Texas 79701 (915) 687-1121 ENDORSER: Jeff Hiinkley MEMBERSHIPDATE: July 16, 1981 Byron Chsppell 1217 Avenue K Lubbock. Texas 79401 (806) 765-7370 ENDORSEg. Chuck Lanchart MEMBERSHIP DAZE: June 22, Rick L. Cohen 2995 LBJ Freeway, Sle. 119 Dallas, Texas 75234 (224) 484-7330 ENDORSER: E. X. Martin MEMBERSHIP DATE; May 1, 1987 Mtehael D. Curran 1720 Avenue K. Plano, Texas 75074 1214) 423-0422 ENDORSER: George Roland MEMBERSHIP DATE: June 15, 1987 Donald L. Curry 720 Texas Avenue Lubbock, Texas 79401 (806) 747417 ENDORSER: Bill Wischkaemper MEMBERSHIP DATE' July 16. I987 Edward N. Daneri 630 Broadway San Antonio, Texas 78215 (512) 226-8365 ENDORSER: John C. Boston MEMBERSHIP DATE July 1, 1987 James A. De&e 2300 Memorial Blvd. Pon Arlhur, Texas 77643 (409) 983-3234 ENDORSER: Jeffrey Hinkley MEMBERSHIP DATE.. August 10, 1987 Riddhi Desd 11319 Mulholland Dr. Stafford, Texas 77477 (713) 974-1584 ENDORSER: Mark Mclntyre MEMBERSHIP DATE: April 8, 1987 November 1987 I VOICE@? the Defense 43
Page 1 and 2: ' Dane Whitworth. David Sheppard, R
Page 3 and 4: President's Report Should We or Sho
Page 5 and 6: David A. Sheppard obtained his J.D.
Page 7 and 8: set in pan or in whole he casts of
Page 9 and 10: H.B. 2575 writinz. If rhe murf d c
Page 11 and 12: taken outsidethemuttroom and he rec
Page 13 and 14: adopted by the health care agency o
Page 15 and 16: The DWI Roadblock Dilemma An Explic
Page 17 and 18: cause because the DWI iquad was aga
Page 19 and 20: that warrantless arrests in this St
Page 21 and 22: solely from thelips of the officers
Page 23 and 24: ests are being made. Potential viol
Page 25 and 26: SHOULD CONSIDER FACTORS SUCH AS BOT
Page 27 and 28: COURT OF CRIMNAL A P P E A L S Alex
Page 29 and 30: ARREST -- WARRANTLESS -- PROBABLE C
Page 31 and 32: 2. Would D confined without bail be
Page 33 and 34: Melvin Edward BUTLER, No. 1063-83 -
Page 35 and 36: Preparing the Record co~rlinuedfmm
Page 37 and 38: . . I. I. After submission, if it a
Page 39 and 40: The Sex Offense Laws The Texas Pena
Page 41 and 42: it was noibeing offered to prove th
Page 43 and 44: difficulty of obtaining a convictio
Page 45 and 46: En Garde: The State's Rebuttal "Onc
Page 47 and 48: Another possible remedy may he to p
Page 52 and 53: Juan C. Duran 3103 Bee Cave Rd., a2
Page 54 and 55: Dale A. McCleary 310 N. Mesa, 3rd F
Page 56 and 57: Ray Velarde 10i3 Montana El Pasa, T
Page 58 and 59: Sometimes keeping this column going
Page 60: I ! TEXAS CRIMINAL DEFENSE LAWYERS

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