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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Sunday, March 27, 2011

What Advice Should be Given Based on the Salinas Case?

What  advice should be given based on the Salinas case? If you're not going to answer every question of the cops's, don't answer any.

Local Rules and Their Friends- What Lawyers Need to Remember

If you're doing an appeal (or any other litigation), you should always check the local rules, and, if, a court has them, don't miss their internal operating procedures if it lists them, as the Fifth Circuit does, or lists of local practices, or tips and guidelines, etc. Texas's First Court of Appeals has civil and criminal Local Rules, as does the Third. Other Texas state appellate courts with local rules are the Second, Fourth, Fifth, Eighth, Tenth, Eleventh (sort of) and Fourteenth (also sort of).

Texas's Fourteenth Court of Appeals Allows Pre-Arrest Silence to Be Substantive Evidence Against a Criminal Defendant

Fourteenth Court of Appeals Justice Jeffrey V. Brown, writing for a panel including Justices John S. Anderson and Kem Thompson Frost, held that defendant's attorney did not render ineffective assistance at trial by failing to object to improper opinion testimony regarding his truthfulness and that the trial court's  admission of evidence of Salinas’s silence during a pre-arrest interview was proper. The investigators told the Salinas family about the murder investigation and obtained consent to search the home.  Salinas’s father tendered a shotgun to the police.  Salinas agreed to voluntarily accompany the officers to a police station for questioning. 
Sergeant C.E. Elliott of the Houston Police Department testified at trial that he questioned Salinas at the police station for nearly an hour.  During the questioning, Salinas told Sergeant Elliott he knew the Garza brothers through Mike Provazek and had visited the apartment three or four times before the shooting.  According to Sergeant Elliott’s testimony, Salinas said he had no disagreement with either of the Garza brothers and did not own any weapons aside from the shotgun police took into custody.  At that point in Sergeant Elliott’s testimony, the prosecutor approached the bench, where the following exchange took place:
Ms. Garcia [Prosecutor]:  Your Honor, there was a Motion in Limine granted that we should not be going into the defendant remaining silent when asked if the ballistics from his shotgun were going to match the shotgun shells found at the apartment.  And at this time, we’d like to be able to go into that and show Sergeant Elliott’s testimony.  The defendant was not in custody at this time.  He was free to leave and he was merely there for investigatory purposes.
The Court:  Was this part of the same conversation that we just heard?
Ms. Garcia:  Yes, Your Honor, same conversation.
Mr. McWilliams [Salinas’s counsel]:  Judge, I renew my same objection, that he has—he can invoke the Fifth Amendment privilege whether he was in custody or not.  He doesn’t have to talk to the police.
The Court:  Okay.  I agree, but unless you know that, in fact, he did do that. 
Mr. McWilliams: He remained silent, Judge.
The Court:  Okay.  Thank you. 
The court went off the record before Sergeant Elliott’s examination resumed.  A little later, the following exchange, which forms the basis of both of Salinas’s issues on appeal, took place:
Q.  Did you ask him, Sergeant Elliott, if the shotgun in question here would match the shells recovered at the scene of the murder?
A.  Yes.
            Mr. McWilliams:  I renew the objection.
            The Court:  The objection is overruled.
Q.  (By Ms. Garcia) You can answer the question.
A.  Yes, I did ask him that.
Q.  And what was his answer?
A.  He did not answer.
Q.  Did he make any motions after that?  Did he—
A.  Yes.
Q.  What did he do?
A.  Showed signs of deception.
Q.  And what were they?
            Mr. McWilliams:  Object to that, Judge, as calling for speculation.
            The Court:  Sustained.
            Mr. McWilliams:  I ask that the jury be instructed to disregard that. 
The Court:  The jury—the objection is sustained.  The jury will disregard the last statement of the officer. 
Q.  (By Ms. Garcia) Sergeant Elliott, what specifically did the defendant do after he remained silent when you asked him that question?
A:  Looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, began to tighten up. 
Q:  Did you continue to question him after that? 
A:  Yes.
Q:  And did you ask him—did he answer any more questions?
A:  Yes.
Q:  So, Sergeant Elliott, approximately how many questions would you say the defendant answered on that evening of your conversation?
A:  I’ve never counted the questions before because this was just talking.
Q:  Well, let me ask it this way if that’s difficult to answer.  About how long did this conversation last, if you remember?
A:  Two minutes short of an hour.
Q:  So, in this 58 minutes that you talked to Genovevo Salinas on January 28th of 1993, how many questions did he not answer?
A:  One.
Q:  So, what changed before this conversation to alter this conversation to cause you to take him into custody?
A:  My opinion.
Q:  And how did your opinion change?
A:  I had the opinion that he was being deceptive and lying to me and I wanted to hold on to him.
After the interview, Sergeant Elliott arrested Salinas on some outstanding traffic warrants.  The ballistics analysis matched Salinas’s shotgun with the casings left at the murder scene.  However, the Harris County District Attorney’s office declined charges, and Salinas was released.  Police procured an additional statement from Cuellar, who, according to Sergeant Elliott, came to the police station unannounced and unsolicited to offer a third statement in which he said Salinas confessed he had murdered the Garza brothers.  Cuellar testified that Salinas was his friend and that he hoped police would solve the murder without his help, but after a dream in which he saw the Garza brothers he felt compelled to come forward.  Salinas was then charged with murder but eluded arrest until 2007, when he was arrested while maintaining a false identity.  Salinas’s first trial resulted in a mistrial, but the jury in his second trial found him guilty and sentenced him to twenty years’ imprisonment and a $5,000 fine.
      Salinas complained that his trial counsel failed to object when Sergeant Elliott opined that Salinas was “deceptive and lying.”  Salinas argues this testimony was an inadmissible opinion of Salinas’s truthfulness, and trial counsel’s failure to object prejudiced his defense. While it is true that other courts--Texarkana, Dallas and El Paso-- have found that a failure to object to improper opinion testimony was sufficient to undermine confidence in the outcome of the case.  Each of these instances arose from sexual-assault or indecency-with-a-child cases in which the victim’s credibility was the only real issue at trial and counsel repeatedly or entirely failed to object to the introduction of testimony on the truthfulness and credibility of the victim’s allegations. This case does not hinge on a single witness’s credibility.
            In his second issue Salinas asserts the trial court erred in admitting testimony of his pre-arrest, pre-Miranda silence.  Sergeant Elliott testified that Salinas remained silent when asked if ballistics testing on the shotgun his father surrendered to police would match the shell casings found at the murder scene.  According to Sergeant Elliott, Salinas showed “signs of deception” when he failed to respond:  looking down at the floor, shuffling his feet, biting his bottom lip, clinching his hands in his lap, and tightening up.  Sergeant Elliott further testified that Salinas answered every question but this one during the nearly hour-long interview.  Defense counsel objected to the testimony on the grounds that Salinas had invoked his Fifth Amendment privilege against self-incrimination by remaining silent.  The trial court overruled the objection.  During closing argument, the prosecutor argued, over defense counsel’s objection, that Salinas’s silence was evidence of his guilt. The United States Supreme Court has yet to decide what protections, if any, the Fifth Amendment affords to pre-arrest silence when the defendant does not testify and his silence is introduced by the State not for impeachment but in its case-in-chief. Texas precedent does not provide guidance. The federal courts of appeals are split on the issue.  The First, Sixth, Seventh, and Tenth Circuits have held that pre-arrest, pre-Miranda silence is not admissible as substantive evidence of guilt.  The Fifth, Ninth, and Eleventh Circuits, on the other hand, have held that pre-arrest, pre-Miranda silence is admissible as substantive evidence of guilt. The Fourteenth Court of Appeals agrees with the Fifth, Ninth, and Eleventh Circuits. The  Fifth Amendment has no applicability to pre-arrest, pre-Miranda silence used as substantive evidence in cases in which the defendant does not testify.

Saturday, March 19, 2011

The Trial Court's Judgment Is Going to Kill Us (Figuratively). What to do?

It's a bird! It's a plane! It's supersedeas! The method described in Texas Rule of Appellate Procedure 24 can keep the winner in a trial court from enforcing judgment. It also tends to guarantee that the trial court loser will pay the judgment immediately if the appeal is lost. Appealing doesn't keep the appellee from executing the judgment. Many appeals, though, would be mooted if the appellant had to pay the judgment right away. If the appellant puts up something of value which would pay the judgment, the appellee can be prevented from enforcing the judgment. However, if the appeal be lost, the judgment would be satisfied (at least in part) by the thing of value's being turned over to the appellee.
The limitation of the required supersedeas amount to the lesser of half of the judgment debtor's net worth or 25 million dollars was a response to the multi-billion dollar Texaco v. Pennzoil judgment. Back in those days, a judgment creditor was supposed to put up twice the judgment's value.  Appellant's counsel in Texaco v. Pennzoil was able to show that there was not enough bonding capacity in the world for that big a judgment. The new rule is a great big mazel tov to any future judgment creditor who finds itself in Texaco's shoes.

Warrantless Review of Mobile Phone Texts incident to Arrest OK

Fifth Circuit Senior Justice Patrick E. Higgenbotham, writing for a panel including Justices Jerry Edwin Smith and Jennifer Walker Elrod, affirmed the conviction of a defendant of whom a Secret Service agent had reviewed-- without a warrant--text messages incident to the defendant's arrest.

Sunday, March 13, 2011

So How Do You Budget for an Appeal?

No, I mean not counting attorneys' fees. You have to figure in the cost of the Reporter's Record. You have to make arrangements to pay the reporter--usually half of the estimated cost of preparing the record before the work starts and the other half on completion. Documents for the United States Supreme Court require a speciality printer.There are filing fees, travel expenses for oral argument. If you can pay for moot court judges, you should. You should find former appellate judges or intellectually strong former trial judges, or just law experts to participate in an early moot court. If you can have a professional proofreader and editor review your brief, you should.
Really, it can get expensive. And I haven't mentioned anything about supersedeas here.Litigation budgeting and value billing: Materials prepared for a continuing legal education seminar held in Vancouver, B.C. on March 29, 1990

Saturday, March 12, 2011

For Any Case, Asking Whether or Not a Panelist Can Follow the Law Is Allowable

The Texas Supreme Court, in a per curiam opinion, reversed and remanded a sexually-violent-predator-civil-commitment trial because the judge refused to allow proper voir dire questions. First, respondent's counsel wanted to ask potential jurors if they could give a fair trial to a person that the evidence would show had committed a number of homosexual acts, even though some veniremembers said that they would have trouble being fair to such a person. The judge disallowed such questions.
The second disallowed question won't make sense without a little background. For a person to be committed as a sexually violent predator, the State must show that the person committed two qualifying sex crimes and additionally that the person has a qualifying behavioral abnormality. The question that respondent's counsel wanted to ask was if a panelist wouldn't commit the respondent on the basis of the two sex crimes without requiring the State to prove the behavioral abnormality. Again the judge disallowed.
The Texas Supremes held that asking about anti-gay prejudice in a case like this helped to establish whether or not the jurors would decide the case on the law and the evidence. Asking panelists whether or not they would put the State to its legally required proof, they added, was always allowable.

Thursday, March 3, 2011

We Do It Different in the South Central U.S.

Texas and Oklahoma each have a highest criminal court in addition to their Supreme Courts. A criminal appellant would not be before the Supreme Court in either state. In Texas, juvenile cases are civil, while bond forfeitures are criminal. Furthermore, Texas capital cases are automatically appealed to the Court of Criminal Appeals.

Wednesday, March 2, 2011

By a Two to One Vote, the State Has the Responsibility to Fix a Questionable Order

Justice Charles W. Seymore, joined by his fellow Fourteenth Court of Appeals Justice Tracy Christopher, reversed and remanded a conviction for indecent exposure. The county criminal court at law judge orally overruled a motion to quash the information after a hearing, but later signed an order granting it. These justices noted that the State had not requested abatement of the appeal to allow the trial court to hold a hearing on a motion for judgment nunc pro tunc to determine if the written order was the result of a clerical error. They held that the State had the responsibility to make the motions. The third justice on the panel, William J. Boyce, dissented. He said that the abatement and hearing could have been required on the appellate court's own motion, and should have been.