Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

Everyone likes to talk about justice - especially prosecutors. The truth however is that justice is seldom the primary focus in criminal cases. Factors such as efficiency and finality often dominate. This was never more evident than in what has come to be known as the Mineola swingers club case. Mike Hall with Texas Monthly has covered this story exhaustively, and recently wrote about may be the final chapter. The remaining defendants plead guilty; not because they were guilty, but because they wanted out of jail, and were willing to do anything to accomplish that.

The title of Hall's article says it all - "An Absolute Honest to God Texas Frame up." After covering the story from almost its inception he doesn't mince words:

I’ve rarely seen the wheels of justice grind up so many innocent people—and I’m not just talking about these seven defendants. I’m also talking about the children who became witnesses against them, plus the family members of everyone involved in this sordid mess.

In case you haven't followed it, here's the history according to Hall:

To recap, from 2005 to 2008, four Tyler children--three siblings and their aunt—all aged 4 through 7, made allegations that in 2004 seven adults, including their parents, had forced them to attend a sex kindergarten in a trailer park, where they learned to play sex games, and then took them to a swingers club in nearby Mineola, where they performed sex acts on stage in front of crowds of as many as 30 adults, who videotaped the shows. The stories told by the kids were wildly inconsistent and sometimes outright bizarre: adults casting spells, wearing witch outfits, and sacrificing chickens; one child said she had flown around on a broomstick. Every single child initially denied to social workers knowing anything about a sex kindergarten or club; it was only after multiple interviews that they started making outrageous allegations. But there was nothing to back them up: no adult witnesses and no physical evidence—no DNA, no fingerprints, not even any videotapes. 

In fact, Wood County, where Mineola is located, did its own investigation, back in 2005, when just one child was talking about a sex club. Investigators (including an FBI agent), found absolutely no evidence to back up her accusations. This didn’t stop the criminal justice machinery of Smith County. A Texas Ranger got involved and before long he was helping interview the other kids. In 2007 arrests were made; the public was outraged that a sex kindergarten and a sex club would operate under their noses. Three of the adults went to trial in 2008 and their juries, made of good country people who want nothing more than to protect their children, found them guilty in a matter of minutes. A fourth defendant was found guilty last summer.

Here's the questions Hall asks, which are entirely reasonable:

I find it unfathomable that so many good people could allow and encourage these prosecutions to go forward. What happened to the lawyerly skepticism of Judge Jack Skeen and DA Bingham and the other men and women in his office?

*Why didn’t they look closer at the kids’ weird, implausible stories?

*Why didn’t they look closer at the foster mother of three of them, a woman named Margie Cantrell who moved to Mineola from California in 2004 and who has a history of manipulating her foster kids? (One of her California kids characterized her to me as “the puppet master” and said, “She brainwashes the kids to believe the stories she makes up.”)

*Why didn’t they give serious credence to the fact that not one of the seven defendants would testify against the others in exchange for a lesser sentence?

Those are all legitimate questions; unfortunately they are questions that I'm sure will never be answered. The question I thing that's more important - and more damming - is why these defendants had to plead guilty to get out of jail. Where's the justice in making an innocent person plead guilty to get out?

The answer of course is where it always it is - far down the list. Prosecutors never want to dismiss cases - you have to admit you wrong, which no one likes to do. More importantly, you create fodder for your opponents in future elections. Prosecutors are supposed to be tough on crime - they can't be letting people go. There's probably some consideration of liability also - we don't want to encourage them to sue after all.

Unfortunately, this story is not unique - it happens far more often than anyone will admit. And that will never change as long as prosecutors don't look at defendants as individuals - and view cases with a health degree of skepticism as Hall says. You can usually judge a situation by asking of you would be satisfied that was a member of your family. Do you think the DA would encourage a family member to plead guilty in that situation?

Hall concludes that in Smith county the bad guys won. It appears that they did. They can now move on to another case, while those destroyed this one are left to pick up the pieces.

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Although they never even mentioned Padilla a two-page opinion from the Court of Criminal Appeals last week raises the question of whether the court considers it to be retroactive The case is Ex parte Herrera. As with most written opinions there is not much discussion of the facts or the law. That is because generally the court is only addressing whether the trial court recommendation should be approved. In Herrera the court held it should.

Mr. Herrera's  pled guilty and alleged his plea was involuntary because no one - including the court - advised him of the immigration consequences.He had made the same claim in a prior writ, which had been denied. In the interim he had been deported, and when he returned he was caught and prosecuted in federal court for illegal reentry. The court recognized that a prior writ had been filed,which normally would prevent someone from filing a second writ – especially on the same groundsThe court simply stated that when the first writ was filed he was only subject to deportation,while when the second writ was filed he had already been deported.

The confusion engendered by the decision requires an understanding of habeas law. Texas law requires a court to admonish all defendants that there are immigration consequences from a plea. The failure to give those admonishments may or may not be significant. In the past the court has held that in order to obtain relief a defendant must show that he was not a legal resident. That would be enough on direct appeal. In habeas however you must go further and establish that you would not have pled guilty had you known you could be deported. The fact that you have been deported is not legally significant; The focus is on the voluntariness of the plea, and not on whether you are actually harmed Therefore, if the only change is that you have actually been deported, that should not have been an issue.

Prior to Padilla the only claim a defendant had was that the trial court failed to comply with the statutory admonishments The court – as other courts– rejected the argument that a lawyer had an obligation to advise a client about the immigration consequences of the plea. Obviously, Padilla changed that. Therefore, the claim would now be one of ineffective assistance, which is a constitutional claim as opposed to a statutory claim.

Although the court never said so, it is difficult to understand how it could grant relief on a subsequent writ if it did not rely on the holding in Padilla. That issue has yet to be completely settled (Mark Bennett has discussed a Houston case going the other way) and requires a discussion of retroactivity which is beyond the scope of this post. If you're making that claim though, this decision is certainly one you should rely on.

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There is  perhaps no more effective tool in law enforcement than the request to search. It never ceases to amaze me that people will allow an officer to search their car knowing full well they are going to find dope.

While common sense suggests you would never give consent when you have something you don't want found, common sense is out the window when you are stopped by the police. There are a number of psychological principals that officers know -  and can manipulate. They use those to get otherwise intelligent people to do something they know is not in their best interest.

So what happens if you refuse? A recent case from the Court of Criminal Appeals shows you better be clear about. If there is any doubt, the officer apparently gets to assume you consented. The case is Meekins v. State. Mr. Meekins was stopped for failing to signal a turn. He was asked for consent to search his car SIX times. Finally the officer says he thought Mr. Meekins said yes, but admitted he could have said "I guess".  He challenged the search, and the Court of Appeals actually agreed with him. Unfortunately for him the Court of Criminal Appeals didn't go along.

The rule in appeals from decisions on motions like this is that the trial court gets the benefit of the doubt. In other words, if there was a good reason for doing what they did, the court assumes they used that reason - whether they did or not. The reviewing court also assumes the judge resolved any factual issues in favor of the decision. In this case, the judge didn't say why he denied the motion - but he doesn't have. The Court held it would be reasonable to hold either way i.e., he either consented or not.

The rule  in most situations is that a waiver of constitutional rights must be clear; you must know what you are doing, and clearly waive your right. The exception is the Fourth Amendment - the right to free from unreasonable searches and seizures. The officer doesn't have to tell you you have the right to refuse, and now the waiver doesn't have to be clear.

Roadside encounters are the most common contact most people have with the police. You have rights, which officers can get around by simply asking for permission. Don't give it - just say know.

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