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

If you are indigent you are entitled to an appointed lawyer and free record on appeal. Sometimes there is an issue of whether the defendant is truly indigent. That was the situation in a recent case out of the Texas Court of Criminal Appeals - McFatridge v. State.

The defendant was convicted of DWI, and requested an appointed attorney to pursue the appeal. The court reporter challenged the indigency affidavit, claiming the defendant had enough money to pay for the $3,000 record. The contest was based on a conversation during trial where she claimed the defendant offered to trade antiques for a copy of the record. (can you guess where this comes from?)

After conducting a hearing the trial court determined the defendant had real property worth $6,670 and personal property worth $3,000 (i.e. the antiques). The court of appeals affirmed that decision, finding the defendant failed to rebut the evidence of indigency. In doing so, the court found that although there was no evidence of what the cost of an appeal would be, it shouldn't exceed $6,670.

There are several interesting things about this case. One is where the court came up with a reasonable fee for a DWI appeal. I'm not sure when the last time any judge on the Court ever handled a defendant's appeal, so where that comes from certainly isn't personal experience.  Might some lawyers agree to handle a case for that amount - maybe so. But to obtain representation,they are going to have to exhaust all their assets. Should we require defendants to do that?

The second unusual fact about this case is that it started with the court reporter. Normally it's the court that contests indigency determinations. Here, the court reporter initiated the process - was it to make sure she got the furniture?

Norm Pattis has started a discussion on a universal defender system. I think there is a lot of merit in that. There is no doubt that the middle class cannot afford lawyers for serious crimes. If they can afford a lawyer to represent them at trial, few have any money left to pursue an appeal. Not only do you have to pay a lawyer to handle the appeal, you also have to pay the court reporter. No one should have to choose between appealing a conviction and exhausting all their assets.

The criminal justice only works if you have access to it. I'm not sure you can say Ms. McFatridge truly had access to the justice system - there  has to be better way.

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The Supreme Court recently decided a case which points out the Catch 22 faced by defendants trying to obtain relief through habeas corpus. The case is Wellons v. Hall. Like any good case it has great facts - which of course involve sex. The defendant wanted to explore contacts between the jurors and the judge and bailiff during trial. Apparently the jurors gave the judge a chocolate penis and the bailiff chocolote breasts. They also planned a reunion after trial with the bailff (maybe to make use of the gifts?) Natuarlly, this caused concern for Mr. Wellons and his lawyers.

Mr. Wellons attempted to find out exactly what happened, and got caught up in what the Supreme Court described as a "procedural morass". He tried to raise the claim on direct appeal but it was rejected because there was no record of  what happened - fair enough. He then filed a habeas petition and tried to develop the evidence. The court rejected the petition, holding it had already been decided on appeal. Not to be deterred, he sought relief in federal court, and requested an discovery and an evidentiary hearing. He was again denied, the court finding his claim was procedurally barred.

So in the end, Mr. Wellons was denied relief without the court ever actually addressing the evidence. You might find that strange - unless you are familiar with how courts handle habeas claims. Unfortunately, this happens all too often. Defendants are denied the right to develop evidence, and then the claim is denied because you have no evidence.

Mr. Wellons' case ended up as a debate over the Court's GVR (grant, vacate and remand) authority. In the end, a majority of the court vacated the decision, and sent it back to the Court of Appeals to determine whether Mr. Wellons should have been granted and evidentiary hearing. I'll leave that debate and discussion to the law professors. What I find important is the court's recognition of the procedural barriers faced by habeas petitioners.

The majority summed up the problem in a footnote:

Moreover, the allegedly “unequivocal” holding that JUSTICE ALITO quotes was preceded by a discussion of the deference owed under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to the “Georgia Supreme Court’s judgment as to the substance and effect of the ex parte communication.” Id., at 937. This is the classic formula-tion of a decision of whether to grant habeas relief. Indeed, it would be bizarre if a federal court had to defer to state-court factual findings, made without any evidentiary record, in order to decide whether it could create an evidentiary record to decide whether the factual find-ings were erroneous. If that were the case, then almost no habeas petitioner could ever get an evidentiary hearing: So long as the statecourt found a fact that the petitioner was trying to disprove through the presentation of evidence, then there could be no hearing. AEDPA does not require such a crabbed and illogical approach to habeas procedures, and there is no reason to believe that the Eleventh Circuit thought otherwise.

Federal habeas all too oftens involves a perfunctory review of the State court decision. As long as they gave a reason that's not completely off the wall, that's good enough. Maybe the Court wants to remind Courts that review should consist of more than that. I certainly hope so.

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Yesterday the Supreme Court issued its opinion in Beard vs. Kindler. This was a habeas corpus case. For those that don't know, habeas corpus is an incredibly complex and technical area of the law. Most decisions are based on procedure, and not on the actual merits of the case. If you want a thumbnail understanding of habeas law, just remember that everything is designed to ensure the defendant loses.

Federal habeas law is even more complex and technical. The idea is that State courts should be allowed to decide their own cases. One of the doctrines that has developed to ensure that is the "independent and adequate" concept. Simply put, if the decision is based solely on State law, a federal court will not review it. Most often that doctrine comes up in cases where the State court has decided the case on a procedural basis; in other words, the case was dismissed or rejected for some procedural reason.

Beard vs. Kindler is one of those cases. Kindler was convicted of capital murder and sentenced to death. While his appeal was pending, he escaped. He managed to remain at large for several years, and in the meantime the appeal was denied based on the fact that he had abandoned his claims by escaping. The State court reviewed the case only to determine if there was a basis for imposing the death penalty.

Kindler filed a state writ,which was denied. He then went into federal court. Although the reasons differed, both the District Court and the Court of Appeals addressed the merits of the case, and reversed. If there is one thing that has become apparent over the last several years its that a reversal in a habeas case has a high likelihood of beign reversed by the Supreme Court. So it wasn't a big surprise that the court granted review.

To consitute an independent and adequate basis, the rule must be regularly enforced. In other words, if the State courts only rarely enforce a procedural rule, they cannot argue that prevents the federal court from reviewing the case. The Court granted review in this case on an extremely narrow issue: if the court has discretion in applying a particular rule, does that mean it is not "firmly established and regularly enforced". The court answered that question in the negative, which was fairly obvious to everyone. In other words, the fact that the State court has discretion doesn't end the inquiry.

It is not entirely clear what Kindler's main argument was; it is clear the discretionary aspect of the rule was not the only argument. He also argued the rule applied by the court was not adopted until after his conviction, and therefore was not "firmly established". That would be an exepction, and the court recognized that.

In the end the Court sent the case back to the Court of Appeals to address the remaining claims. The court also refused the State's request to explain the doctrine further, and provide some guidance to the lower courts. The court's reason was that escape was not the "typical" type of default. I guess that means the court is still open to explaining the rules when a more "typical" reason comes before them.

Like the decision yesterday in Michigan v. Fisher I'm not sure this added much to our understanding of habeas law.

As a side note, Kindler is apparently an extremely resourceful criminal. He didn't escape once, but several times. The first time he went to Canada, and became somewhat of a celebrity when he fought extradition. When Canada finally gave in, he escaped again - using 13 stories of bedsheets tied together to do so. He remained on the lam for mor than two years before he was caught again. Oh yeah - he also escaped before his trial. If he llives for awhile, maybe he has a future as a consultant for prison security.

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Every year thousands of people ask the Supreme Court to review their case; the Court agrees to review only a handful. Generally, they will not agree to hear a case unless there is some issue they want to address; they either want to change the law, or maybe clarify. it For the most part, they could care less whether the lower courts reached the right result.

So when the court agrees to hear a case you generally expect some change in the law. The expectations were no different Michigan v. Fisher. The case involved the emergency search exception. Officers had been dispatched to a disturbance, and found a truck with a smashed windshield, damaged windows in the house, and blood on the hood of the truck. The saw Mr. Fisher inside the house - he was throwing things, and had a cut on his hand. The officers tried to enter, but the door was locked. When they asked Fisher if he needed help, he not so politely asked them to get off his property. When when officer tried to push the door open and enter the house, Fisher pointed a gun at him. Entry was eventually made, and Fisher was charged with assault with a dangerous weapon and possession of a firearm.

The Michigan trial court held a hearing, and decided the entry into the house was unreasonable. THe caes went back and forth, but the Michigan Court of Appeals eventually agreed with the trial court and affirmed its decsion. On Monday the Court reversed, and sent the case back to the Court of Appeals.

The unusual aspect of this case is not that the court reversed, but the grounds for doing so. Basically, they held the lower court reached the wrong result. The court didn't set forth any new law, or explain in more detail existing law. The opinion appears to be nothing more than a disagreement with the lower court - a court which found in favor of a defendant.

The court held in 2006 in Brigham City v. Stuart that police could enter a home where there was a "need to assist persons who are seriously injured or threatened with such injury". The court did nothing to explain or alter that holding. In fact they held that a "straightforward application of the emergency aid doctrine" dictates that the entry was reasonable.

So why did the court need to find the officer's actions were reasonable? That is something normally left to trial judges. There was no suggestion the trial judge didn't understand the law, or misconstrued it -he just reached the wrong result in the court's eyes.

I find it interesting that Justice Sotemayor joined Justice Stevens in dissenting. They both felt the court had no business making such "fact intensive" decisions. I don't  know if that says much about her views on the fourth amendment, but it does say something about her view of the role of the 'Supreme Court.

In the end, this case did nothing to advance jurisprudence. So why did they waste they time and effort?

 

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The Texas Court of Criminal Appeals issued a significant opinion today on DNA testing. In Esparza v. State the Court reversed both the trial court and the Court of Appeals, both of which had denied his request under Chapter 64 for post-conviction DNA testing.

Esparza had been convicted of aggravated sexual assault. He met two women at a bar, and ended up giving them a rode home. On the way, he raped one, the other got away. The actual victim could not identify him, but the other woman did, as well as another person at the bar. Additionally,  he had given them a business card, with his name on it. He denied guilt at trial, and presented an alibi. The jury ultimately convicted him, and sentenced him to life.

In rejecting his request for DNA testing, the court focused on two things. One was that victim admitted she had sex 2 days earlier. The court concluded that because of that, evidence of a third party donor would be meaningless (the trial attorney actually admitted this at trial, although I can't come up with any rational explanation for making such admission). In other words, the court found that she had sex with someone else, if the testing excluded Esparza it must be the other person.

The CCA (yes, the one with Sharon Keller) found several problems with that argument. The most glaring was that it was based entirely on assumptions. One assumption was that  her partner ejaculated in the other incident. Another assumption was that she didn't do anything to clean herself up in the interim. And finally, there was no testimony that there would still be evidence to recover from an incident two days earlier. In other words, you have to more than guess; your guess has to actually be supported by the evidence.

The Court concluded that if the DNA tests excluded him, there is a reasonable probability he would not be convicted.

You still have the identification, which appears fairly supported because of the business card. (BTW - it showed him working as a paralegal for the lawyer who ended up defending him at trial) The court's rejection of this argument is truly astounding. They held that the eyewitness identification of the two witnesses was "of no consequence". They also held that:

In sexual assault cases like this, any overwhelming eyewitness identification and strong circumstantial evidence (e.g. Esparza's business card, light-blue four door car, age and the fireworks on the floorboard) supporting guilt is inconsequential when assessing whether a convicted person has sufficiently alleged that exlculpatory DNA evidence would prove his innocence under Art. 64.03.

Maybe I'm reading too much into it, but to me that suggest the Court has finally recognized just how unreliable eyewitness testimony really. It's no longer enough to say you have an eyewitness ID, even if supported by other evidence. I think that has application in other cases; not just Chapter 64 requests.

I can't believe I'm happy about a Court of Criminal Appeal opinion. but I am. I'm not expecting this to be a trend though.

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The case against Charles burst into the news last year when his lawyers discovered that the Judge who presided over his case was in a relationship with the District Attorney at the time of the trial. Needless to say, they had done everything possible to prevent anyone from finding out. While that is interesting enough, the case becomes more interesting when you learn that the judge went on to serve on the Court of Criminal Appeals for a period of time; the same court that will have to decide the habeas petition filed by Mr. Hood.

Last week, the current trial judge entered findings in the habeas proceeding. Among other things, he found that Mr. Hood could not be faulted for not raising the issue sooner. Predictably, the State had argued that the issue had been waived because he had waited too long to raise. To his credit, the judge found the fault for not raising the claim earlier lay on the District Attorney and the Judge; they went to great lengths to cover up the relationship, and shouldn't be allow to benefit from their success in doing so.

The case now goes to the Court of Criminal Appeals - several of whom served with the Judge. They have to decide whether to accept the findings, and if they do, what to do with the case. CBS news reporter Andrew Cohen seems to think there is no way Hood will not get a new trial.  I'm not so sure; the Court certainly has a history of rejecting equally compelling claims.

If the court frames the issue as whether the judge was impartial, they could look at the decisions made during trial. They might conclude it did not appear she was favoring the State. Of course, that doesn't pass the smell test, but neither does many of the things the Court does.

Mr. Cohen also suggests the current DA follow the lead of the U.S. Attorneys in the Ted Stevens case, and dismiss the prosecution. The problem is that they have no authority to do so. Mr. Hood has already been convicted, and sentenced. The only one who can undo that is the Court of Criminal Appeals. They could agree that the a new trial should be granted, but the final decision is still up to the court. They do not have to accept the State's recommendation, and they have found against defendants before when the court and prosecutor both believed relief should be granted.

I believe this may be a test for the court.. They have certainly done much to bring disfavor on themselves. This would be an opportunity to start on a different direction. While a decision to grant relief in this case won't solve their credibility problem, it won't make it worse. On the other hand, public opinion of the Court can't get much worse.

We have become conditioned to have low expectations of the Court, espeically in death penalty cases. I

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If you ever wondered why many people have such a poor opinion of the justice system, it's because of cases like Carl Wayne Buntion. The Fifth Circuit recently reversed a order from the Federal District Court which  had granted relief from his death sentence. The District judge concluded the trial court judge was biased, and therefore Buntion did not receive a fair trial. The Judge was William Harmon from Houston, who among other things, put up a post card of "hanging judge" Roy Bean during the trial. He also made the statement that he was "doing God's work" to see that Buntion was executed. If that wasn't enough, he changed several rulings after calling the District Attorney's office during trial, and getting advice them. He also tried to remove one of the lawyers, and then realized he couldn't do that. When the lawyers tried to have him removed, he threatened to accuse them of possessing drugs if they didn't stop challenging his behavior.  The  truly amazing thing is that most of the allegations were not disputed.

It's not too difficult why the federal district judge concluded the judge was biased. He obviously saw what happened, and knew something needed to be done.

Obtaining relief in a federal habeas proceeding is an extremely difficult thing to do. Much of the difficulty is the result of the standard of review. The courts are reviewing State court decisions, and will not second guess them unless they really stepped out of line. That means a federal court can believe a state court made the wrong decision, and still not grant relief. In a convoluted legal decision, the Fifth Circuit held the District Court should not have granted relief. That means Buntion is likely to be executed, after a trial presided over by a judge who at the very least did not comport himself to the standards we expect from judges.

It is difficult to imagine how anyone could think Buntion received a fair trial. The court noted the judge's action should not be commended (duh!), but apparently they were not so far out of line to establish bias. You have to wonder what else would it take. I'm sure most people expect more from their judges. Thankfully, this is a rare situation. However, that does not excuse a refusal to act. I'm sure Mr. Buntion and his family are not comforted by the assurance that this is a rare occurrence

If we expect the public to have any confidence in our system of justice we have to be willing to take action when the system breaks down. Unfortunately, that didn't happen  here.

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For most lawyers, the ultimate achievement is to argue before the United States Supreme Court. Lawyers spend hundreds of hours working on the briefs, and preparing for the argument. You expect the justices to pepper you with questions, and try to anticipate what they are going to ask. Most lawyers will even set up mock arguments to find out the best way to handle questions. Few lawyers expect to actually get into their argument, and try to advance the arguments through their answers. Not having appeared before the Court, I assumed all the Justices got involved. As a result, I was surprised to learn that Justice Clarence Thomas is the exception. According to a recent article, he has gone two years and more than 142 cases without asking a question. According to Justice Thomas, he believes he can do the job without asking a question.

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