Getting Game Day Ready in Longview by TCDLA

Texas Criminal Defense Lawyers Association

Game Day! How to Tackle Any Courtroom Situation Table of Contents

-Speaker

Topic January 14, 2022

Clifford Duke John Hunter Smith Robert Gebbia David Bost Phil Baker Rebecca Tavitas Anne Burnham

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

GAME DAY! HOW TO TACKLE ANY COURTROOM SITUATION SEMINAR INFORMATION Date Location Course Director Total CLE Hours

April 1, 2022 Longview, Texas | HolidayInn Infinity Event Center Jason Cassell, Adam Kobs, and David Moore 6.0 Ethics: 1.0

Friday, April 1, 2022 Time

CLE

Daily CLE Hours: 6.0 Ethics: 1.0

Topic

Speaker

7:45 am

Registration and Continental Breakfast

8:15 am

Opening Remarks

Jason Cassell, Adam Kobs, and David Moore and

8:30 am

1.0

Instant Replay| Technology in the Courtroom

Clifford Duke

9:30 am

.75

Scouting | Voir Dire

John Hunter Smith

10:15 am 10:30 am

Break .75

11:15 am 11:30 am

Robert Gebbia

Lunch Line 1.0

12:30 pm 12:45 pm

Kick-Off & Red Zone | Opening and Closing Arguments

Lunch Presentation: Keep Your Head in Game | Mental Health

David Bost

Break .75

1:30 pm

Scrimmaging | Pre-Trial Investigations

Phil Baker

Break

1:45 pm

.75

Special Teams | Experts & Witnesses

Rebecca Tavitas

2:30 pm

1.0

Rules of the Game/Penalties | Client Relationships & Communications

Anne Burnham

3:30 pm

Ethics

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Getting Game Day Ready April 1, 2022 Holiday Inn 300 Tuttle Circle Longview, TX 75605

Topic: Instant Replay| Technology in the Courtroom Speaker:

Clifford Duke

133 N Riverfront Blvd, LB2 Dallas, TX 75207-4339 (214) 875-2319 Phone (214) 653-3539 Fax cliff.duke@dallascounty.org email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Instant Replay: Technology in the Courtroom How to take control and be the best prepared and most professional advocate in the room. Clifford P. W. Duke Assistant Public Defender, Dallas County 133 N. Riverfront Blvd. LB2 Dallas, TX 75207 (214)-875-2319 cduke@dallacsounty.org So let’s face it: it’s pretty disappointing that we don’t have flying cars or deep space colonization yet. But technology has moved on and the days of flip boards and sharpies in the courtroom are at an end. Juries demand more. The attorney who can properly integrate technology into their presentation comes across as more organized, more knowledgeable, and most importantly: more credible. This paper is going to look at technology from the perspective of the courtroom. Why are we implementing the use of technology in the courtroom? How do we manage technology in and out of the courtroom? And most important: how do we get help dealing with all of this technology? I.

Technology Inside the Courtroom A. Why Do We Care About Technology In The Courtroom?

Why worry about technology in a courtroom anyway? Attorneys are master orators. We possess the ability to evoke emotion and sway minds. Facts and witnesses bend to our examination. Jurors hang on our every word, imprinting them on their souls till the end of their days.

Not quite. There are three concepts to our presentations we need to keep in mind: Retention; Education; and Credibility. Words alone are not going to stick. “[U]nless our words, concepts, ideas are hooked onto an image, they will go in one ear, sail through the brain, and go out the other ear. Words are processed by our shortterm memory where we can only retain about seven bits of information (plus or minus 2) […]. Images, on the other hand, go directly into long-term memory where they are indelibly etched.” Dr. Lynell Burmakr, Visual Literacy (2002). We need more than just our words to etch our points into the jurors brains. We are not just advocates. We are educators for our audiences. We must teach either judge or jury the facts in the light we want them to see it. And there is more than just one type of learner. Learning occurs redthrough visual, auditory, kinesthetic, and reading/writing input. 4 Types of Learning Styles: How do Students Learn Best?”, https://bau.edu/blog/types-of-learningstyles/ While most people are a blend of each learning style, there tends to be a dominant style for each person. What kind of disservice are we giving our client by potentially ignoring venues to get knowledge to our judge and jurors? Wile trying to teach our fact finders we have to think about why they would want to listen to us. There are three types of credibility: initial credibility (the credibility a presenter has before a speech), derived credibility (credibility gained during a speech), and terminal credibility (credibility of the speaker after a speech). Considering that most jurors will not have any previous

knowledge of most of us as litigants, our credibility hinges on our presentations. Probably more important than what we’re teaching is how we are perceived in teaching it. Studies in expert witness confidence directly correlated not only a juror’s determination of a witnesses credibility based on how confident they presented, but found that it had a direct correlation to sentencing outcomes. Expert Witness Confidence and Juror Personailtiy: Their Impact on Credibiilty and Persuasion in the Courtroom, Cramer, Brodsky, and DeCoster, Jouranl of the American Psychiatry and the Law Online (March 2009). At the end of the day who do we want the jury to believe? Us? Or the State? Technology is a tool that makes us a better attorney. When we can walk in looking like the most prepared and most knowledgeable we will come across as the most credible. As the most credible we control the narrative of the case against our clients. And the person controlling the narrative usually controls the verdict. B. Audio Visual In The Courtroom What tools do you have at your disposal? That will depend on your preparation. Will the tools already be there for you to plug into? Or will you need to bring your bag of tricks with you. 1. What’s in your courtroom? Probably the most important first question is what technology will you be expected to use. Will the courtroom you’re in have multiple monitors and plugins to the audio and visual equipment available? Or will you have a 1980’s overhead projector and be expected to bring transparency copies?

Take the time to reconnoiter your courtroom if you’re not already familiar with it. Talk to local counsel about how the State uses technology and what the judge has experience with. Bring your technology up ahead of time and make sure your presentations interface with the technology that exists. Check every aspect of your technology and presentations. Do you need wifi or internet connections and are they available? How are the speakers in the courtroom? Are plugins available and where? Don’t wait for the jury to be in the hallway before you start asking these questions. 2. BYO Tech What are your options if your courtroom doesn’t have what you want or need? The answer? Bring your own. And what if there is technology available in the courtroom and it fails? Or doesn’t interact with your presentation the way you want or need it to? Bring your own. Technology has come a long way in portability, quick usability, and affordability. Let’s look at some problems and answers: No TVs or Monitors? Bring your own projector and screen. Portable screens from fifty to two hundred inches are portable cheap, less than $100, with a stand. A projector that you can plug directly into your laptop or attach to tablet or phone via Bluetooth is less than $100. Even if TVs are available don’t limit yourself to what’s there. If you like it better, bring your own. No Audio or Crummy Audio

Nothing is worse than a great witness interview being completely inaudible over static crackled speakers. Portable speaker technology has come a long way and is easily hard wire or Bluetooth connected. Your high-quality audio that you can move around the courtroom for your jury to hear can be a huge advantage. Document and item presentations Most courtrooms will have a doc cam you can use to project pictures, documents, and items onto a display. If not? Amazon has you covered for a USB Doc Cam for under $100. Don’t like the doc cam? Make sure your documents scanned ahead of time and in a digital format to put in your presentation. Want to throw some items in at the last minute? A portable scanner or even your Smartphone can get a document scanned or a picture of an exhibit up on the screen for your jury on the fly. No Internet? This can be trickier depending on where your courthouse is and the infrastructure available. If the courtroom WiFi won’t meet your needs bring your own router or even your own hotspot to provide your own internet connections. Your cellular provider will have a device you can tie into your data plan for little to no money. Even cellular not an option out in the sticks? Consider having everything on your hard drive ahead. A 5 Terabyte external hard drive that connects by USB can have all of your discovery, videos, and presentations preloaded for your use. No data connection required. Can’t Hook Up?

Nothing is more infuriating than not having the right plugin for your piece of technology. In current use there are seemingly infinite adaptors and connections: lightning connections for your Apple ware; micro connections for your Android ware, USB, micro USB, and USB-C, HDMI, VGA, Display Port, Bluetooth Adapters, WiFi Adapters, and the list could go on. Do your homework. Know what you’ll need. Test them out ahead of time and bring a backup. I guarantee the one cord you need either will not be there or will not work exactly when you need it. Cords are cheap and they’re always in demand. Beyond your technical cords make sure to check the more mundane: power. Do you have access to an outlet? Multiple outlets? Do you need an extension cord? A surge protector with multiple outlets? Take the time ahead of time to make sure you have what you need. At the end of the day having your own tech on hand to supplement what may or may not be available is the ultimate ace in the hole. You could get on Amazon at the time of writing this paper and have every piece of technology mentioned delivered in two days for under $1000.00. Get yourself the tools you need. 3. Adapt on the Fly Here is the one absolute rule that I can provide in this paper: Your Technology Will Fail. And it will probably do it at the most inopportune time. When using technology to assist in your trial you have to be prepared for when that happens. Some of that is running through your presentations ahead of time. Know how the technology works where you’ll be, and

problems you may run into. Have your own technology to back you up. Also have a backup plan. Know that if the computer crashes you can close it and go on with your cross. Print hard copies to have on hand. Practice a version of your voir dire, cross, or close with no technology to know how you could adapt. Make sure your trial partner, investigator, or IT person (we’ll talk about getting one of those later) knows what you are expecting to use when so they can try to fix it while you move along. Nothing will kill credibility faster than bumbling through trying to save a presentation that has decided to fail. C. Power Point & Making It Work Power point is the flip board of the twenty-first century. While there are alternatives to Microsoft such as Apple’s Keynote, Google’s Slides, or Adobe Spark Power Point is the go-to generally used presentation software. Many attorneys will use a power point presentation to assist during voir dire, open, or close. More advanced may have their power points set up to assist in a direct or cross examination. And it’s easy to do. But Power Point or any visual aid, either digital or stone age, can become a crutch as easily as an enhancement to your trial. Pay attention to some basic do’s and don’ts, and make sure you’re using some simple tricks to look like a pro. 1.

Power Point Do’s and Don’ts

The number one rule for any visual aid is that it is there to assist you, not replace you. The visual aid should help reinforce the point you are making, not distract from it or make it on its own. Here are some big do’s and don’ts for whatever visual aid you are using:

Don’t Read To Your Audience This rule speaks for itself. You should never read anything off of a slide to your audience. Find an image, or highlight a few words to emphasize your point. Remember that your visual presentation is to assist and reinforce your presentation, not make it for you. The only exception to this rule is if you are using a document in power point that has been admitted into evidence. We’ll look at some tips and tricks you can use to highlight documents or exhibits that you may then read to your jury. Font Type and Size Tiny words on a far away screen are pointless for helping with your presentation. As a rule of thumb you should not have any font less than 20 point. Larger if you’re using a non-standard font. And don’t go crazy with all of the font options available. Just because a font looks fun does not mean that it is readable for your jury or that it will not distract from the point you are trying to make. Use Animation in Moderation Power point has a lot of fun tools and options for animation and movement in your slide. Used sparingly they can enhance a presentation. But don’t have every word or picture spinning or bouncing onto the screen. Remember you are the center of the show. Your technology is there to assist. Not distract. Contrast Contrast Contrast Black words on white screen may be boring but blue font on a blue screen is not helpful. Color is a great addition to any presentation, but make sure that your content

is standing out. Pick colors that contract and stand out as well as emphasize your points.

shape or line will produce a symmetrical shape or perfectly straight line.

As a general rule pick a dark background and light text for your slides to pop and information to stand out.

Stock Images & Removing Backgrounds

One Idea Per Slide While we’re trying to enhance memory through visual representations, don’t clutter your points. The burden of proof does not belong on the same slide as your rights to counsel. Keep your ideas separate and distinct, especially the ones you want sticking in your juror’s mind. Don’t Overload Your Slide Many an attorney has been guilty of copying and pasting from the Code of Criminal Procedure and throwing it up on a screen. Do. Not. Do. This. The 5 x 5 rule of Power Point is this: No more than five words per line. No more than five lines per slide. Remember that this visual is an enhancement to your presentation. Have a picture up that reinforces your point. One or two words for jurors to hitch their memory to. Less is more. 2. Tips and Tricks Gone are the days of black text on a white screen with a simple spin animation. Presentation software has added a lot of tricks and tools that are very user friendly and you don’t have to be an expert to use. Here are some easy features to look at to enhance your presentations. Perfect Shapes & Lines Shapes and lines that are slightly askew and distract from your presentation. Hold down the “shift” button when laying your

Power Point has built in a huge database of stock photos to add into your presentations. Go to the “insert” menu, select “pictures”, and “stock images”. Search from photos, stickers, cutouts, or videos to use. If you can’t find the image you like then jump out to the net. A quick Google search of the topic you’re thinking about will give you a wealth of options of images to choose from. Be careful to not use low resolution images, and to save the full sized photo by right clicking and selecting “save image as”. If your image has more in it than you want to use you can crop or background removal tools built into power point. For advanced cropping go to “picture format” on the top bar and then “crop” on the far right. You can crop your picture to specific shapes or sizes. If you want just an object from a picture you can remove the entire background by selecting the photo, going to “picture format” and “remove background”. Morph Images & Custom Animation Instead of the set animations of the past you can move objects, pictures, or shapes in custom ways or even have one shape morph into another. Custom animation is very easy. Under your “add animation” tab select “motion path” to pick paths for your item, shape, or word to travel. You may want your circle to turn to a square or your cop to a villain. To morph a shape you will need to duplicate a slide by right clicking on your current slide and selecting “duplicate slide.” Then selection

“transitions” from your top bar and select “morph”. Screen Recording & Narration Want to include a portion of the body camera or witness interview video in your closing argument? You don’t need fancy video editing software. You can record activity on your screen and insert it as a video into your presentation. Click on ‘insert” on your top bar and on the far right hand side is “screen recording.” Power point will allow you to select what portion of your screen you want to record, when to start, and when to stop. Want to get even fancier? You can record narration and annotation over your video as well. From your top bar select “slide show” and “record slide show”. Use your video options to records yourself narrating over the slide and making annotations as necessary. Presentation Mode Shortcuts If you have never used presenter mode before it is an absolute must. Not only can you make notes and annotations that only you can see but you can see what slide is next, the total time of your presentation, or other customized information that you will see on your computer but your audience will not. To use presenter mode select “slide show” from your top bar and make sure “use presenter mode” is checked on the far right hand side. Then when your computer is connected to your projector or the TVs in the courtroom you will have the information on your computer and your presentation for the audience. To see all the shortcuts that you can use simply press F1 while in presentation mode.

All of this is just a sampling of the options and toys you can use to enhance your presentations. None of it was learned through hours of study or classes. All of the above functions were from a 10 minute video with complete walk through on each task you can watch as many times as you want. Just go to YouTube and search “Power Point Tricks”, or for a specific function you’re trying to master. Check out that video at: https://youtu.be/zcITARGg3CQ or go find your own. You don’t have to become an expert, but becoming proficient is easy. II. Technology outside the courtroom Technology in the courtroom is the end of the game. But what about technology outside the courtroom? How are you getting your discovery and what are your duties? How do you share discovery and trial preparation with your trial team? How are you protecting confidential or privileged information? How you manage your data outside the courtroom is as important as how you present it in. A.

Communication & File Sharing

Trial is set in Austin. Your main office is in Houston. Co-Counsel is in Waco. You have one expert in Dallas, another in El Paso, and one working remotely in the Bahamas. What are you supposed to do? Two of your biggest concerns are communication and file sharing. And the primary concern on both of those is security. While 300 hours of free AOL are tempting, it’s probably not the best choice for your client’s confidential information. So what are your options for storage and sharing? They break down to two broad categories: Cloud Storage vs. Personal Servers. Think of both as a filling cabinet. You access the filling cabinet through an

internet connection to either put in or access files. For cloud storage, a company has hundreds and thousands of filing cabinets and rents drawer space to lots of people and companies. Theoretically your cabinet drawer is secure, only you and people you give permission can get into it. That security depends on the company you’re using. Despite some drastic changes in user’s ability to modify their security, Google received nearly 500,000 government requests for user account information and 220,000 requests for specific user information in 2020 alone. Google Transparency Report, https://transparencyreport.google.com/userdata/overview?hl=en (October 16, 2021). It cannot be understated that when using any cloud storage your data is on someone else’s server. By contrast a personal server is what it sounds like: a personal filing cabinet that can be accessed through internal networking or remotely via an internet connection. Personal servers in the past were cost prohibitive for many small or solo practitioners. Now NAS (Network Attached Storage) devices are very reasonably priced, under $500 depending on size, and exceptionally user friendly. These devices are just like the hard drive on your computer but instead of being attached to a computer they are attached to an internet connection so they can be accessed on a personal network. The upside to a personal network storage device is that short of being hacked or giving out your access information your network is secure. No one else owns it. The down side is that if the hardware fails, your data is lost. When making your choice, it is important to do your research. If you choose

to use third-party cloud storage check their security standards and ratings. Even large companies like Google and Apple are not necessarily HIPPA compliant (discussed below), and your security may depend on what product you choose and what settings you have. B.

HIPPA & Technology

When making considerations about security thinking about what records and documents we have must be a primary concern. While most attorneys are probably aware of HIPAA (the Health Insurance Portability and Accountability Act of 1996), not many attorneys realize how applicable it is to them. HIPAA and the TMRPA (Texas Medical Records Privacy Act TMRPA) regulate any individual or business that creates, receives, stores, or work for someone that creates, receives, or stores Protected Health Information. TEXAS HEALTH AND SAFETY CODE §181.001(b)(2)(A-D). What is Protected Health Information (PHI)? PHI is information, including demographic information, which relates to an individual’s past, present, or future physical or mental health condition, healthcare, or payment for the healthcare information that identifies the individual. 45 C.F.R. §160.103 This includes information transmitted by electronic media, maintained in electronic media, or “Transmitted or maintained in any other form or medium.” Id. So, if it’s medical information that can be tied to a specific person, it’s probably PHI. As attorneys there is a really good chance we’ll end up being covered entities regulated by HIPAA and TMPA. For example, Mental Health records we receive

for a mitigation packet or a grand jury presentation, TDCJ records that include infirmary trips, SAFPF records that include counseling, UA results for a pre-trial check in, or discovery with EMT or blood draw records, all have PHI. The potentials are pretty limitless. Remember too that it does not have to just be our client’s PHI. Records we receive on third parties like witnesses or family members still fall under HIPAA and TMPRA regulations. What does it mean then that we are covered entities maintaining confidentiality of PHI? Obviously secondary possessors of PHI like attorneys were not the main focus of HIPAA or the TMRPA. We do not create PHI, but we are still required to protect medical privacy. Big picture is two things: 1) We cannot release PHI without a proper release and 2) we have to comply with other provisions of HIPAA and TMRPA for safeguarding, training, and notice requirements. The TMRPA adopts the standards of HIPAA at Texas Health and Safety Code 181.004. HIPAA lays out standards to ensure confidentiality, protect against reasonably anticipated threats, protect against reasonably anticipated non-permitted uses or disclosures, and ensure compliancy by your workforce. 45 C.F.R. §164.306 It does not make a list of “do this and don’t do that” but requires that any covered entity assess the level of risk to accidental disclosure, make a plan, and justify what choices were made and why. The goal is that if there ever is a breach, we can show we did everything we could to avoid it. Here are some highlights of best practices: Encryption. Encryption renders PHI unreadable and undecipherable. The data can

only be read if a key or code is applied to decrypt the data. While encryption is not required for all ePHI data, HIPAA-covered entities should conduct a risk analysis to determine the level of risk and if encryption is not used what other safeguards are used in its place. There are many options for encryption programs out there, both free and paid. Before you go drop off that USB for the District Attorney, take a look at https://www.techradar.com/best/bestencryption-software for some ideas. Passwords. Even though passwords are usually the front line to prevent unauthorized access to data, the only requirement in HIPPA is that covered entities create “Procedures for creating, changing, and safeguarding passwords.” The National Institute of Standards and Technology (NIST) recommends a password be between 8 – 64 characters, using passphrases instead of previously recommended complex passwords that people forget or write down to remember. So instead of using a complex sequence of numbers, letters, and symbols use something only you would know as a passphrase like “Mywifesbirthday!JanuaryFirst1980” Third Party Storage. Are you using another company to maintain your files? If so you’re going to need a business associates agreement. 45 CFR §164.308(b). A business associates agreement is simply a written agreement that the third party you are paying is going to take all of the necessary steps to protect your data instead of you doing it yourself. E-mail. Not all e-mail is created equal. Using your 45 hours of free AOL access to send ePHI documents to your expert or the judge is not secure. If you’re e-mailing

ePHI you need to make sure your e-mail is HIPAA compliant. To do that you need a few things: 1) End to end encryption 2) a business associates agreement with your email provider 3) make sure to configure your e-mail correctly 4) have policies and training for your staff for e-mailing ePHI. Talk to your e-mail provider about making your e-mail HIPAA compliant on how to set up your account to send HIPAA compliant emails. If you’re not a solo practitioner, you have to make sure that you’re training your associates too. Texas Health and Safety Code 181.101 requires training of employees on both State and Federal law regarding any PHI they may come into contact with. That training must be done within 90 days of hire, and the employee is required to sign a statement verifying the training. TEX. HEALTH &SAFETY CODE 181.101(a) & (d). Why do we care? The TMRPA, in addition to injunctive relief provides for civil penalties: $5,000 per violation for negligent violations and $25,000 per violation for intentional or knowing violations up to $1.5 MILLION per year. TEXAS HEALTH AND SAFETY CODE §181.201 The Department of Health and Human Services published a final rule increasing the civil penalties for 2020. For violations the covered entity did not know about fines can be between $119 and $59,522 per violation. If the violation is due to willful neglect the penalty jumps to between $11,904 and $59,522 per violation. So what do we take away from this? It’s to remember that as we implement new technology and new ways of doing business into our practices we be aware of steps to make sure private client information stays private. A lot of us may be old hat to

encrypted transfers and two step verification, but there are lot of lawyers (and their staff) who are not. Take the time to learn about the new technology you’re using, and how to use it better to comply with privacy of all kinds. C. Electronic Duties

Discovery

Your

So much discovery is making a switch to fully digital. Files are emailed, portals are opened, and we now have terabytes of bodycam footage on every case. What has changed for attorneys in our duties for discovery? Texas Code of Criminal Procedure 39.14 allows for electronic duplication of items for discovery in the State’s possession. Remember though that sometimes looking at the original is important. When necessary, assert your right to examine evidence under 39.14(a). Of the discovery we receive it’s important to remember the new limitations on redisclosure. Without the permission of the Judge, or unless the information already made public, we cannot disclose information obtained in discovery to any third party. Tex.Code.Crim.Proc 39.14(e) We are even required to redact identifying information for a complaining witness before reviewing with our client. Id. With so much discovery being fully electronic that directive can be more difficult. Keeping secure client files is even more important in a technological age. III.

Getting Help

Let’s be honest, who in the world has time for all of this? Navigating security and

communication, downloading and reviewing discovery, creating audio visual presentations all while still figuring out how you’re going to even try this case. For the solo attorney it’s near impossible, and it’s not fair. Especially when you consider that your District or County Attorney’s probably has at least one, if not multiple, employees doing this type of work full time. Most of us are aware of Ake v. Oklahoma and its use to get expert assistance in our cases. We hire DNA experts, firearms experts, child and forensic psychologists. Why not technological experts to help us distill and prepare technology for our courtroom presentations? The central premise of Ake was to put a criminal defendant on more equal footing with the State prosecuting them. “[M]ere access to the courthouse doors does not by itself assure” a fair trial. Ake v. Oklahoma, 470 U.S. 68, 77 (1985). Defendants needed “access to the raw materials integral to the building of an effective defense.” Id. “In an adversarial system due process requires at least a reasonably level playing field at trial.” DeFreece v. State, 848 S.w.2d 150 (TEx. Crim. App. 1993). The burden will be on us to push the envelope to obtain this help. One of the central analysis points for any Ake motion is that the defendant make a showing of centrality and novelty of an area of the trial. “The state does not need to ‘purchase for the indigent defendant all the assistance that his wealthier counterpart might buy…” Ehrke v. State, 459 S.W.3d 606, 615 (Tex. Crim. App. 2015) citing Ake, at 77. “The burden is on the defendant to provide concrete reasons for why the expert should be appointed. Id.

citing Ex parte Jimenez, 364 S.W.3d 866, 877-78 (Tex.Crim.App. 2012). Having an IT Person to review what digital discovery you receive, help you manipulate that digital media for presentation, and review the State’s digital presentations for accuracy and admissibility is an expert’s job. So make those concrete reasons to your judge. In your motion to the court to show how you need assistance to prepare the presentation of this digital information for the jury. Lay out how you do not have the technical expertise to do so. Make a record of what the State has available to them and the violation of Due Process, Equal Protection, and Effective Assistance of Counsel when your client is not allowed the same tools. Push the envelope and make sure your client has the same access to the game as those people prosecuting them. IV.

Conclusion

Technology has clearly changed the way we practice law. And it will continue to do so for the foreseeable future. Looking backward at the exponential growth of technology over the last seventy years we can only imagine where we’ll be seventy years from now. And we have to be on the cutting edge. When police and prosecutors are using technology against our clients, we have to be right there pushing back and using the same tools against them. Let it be fun. Learn something new. Try out a new trick that makes a juror sit up and pay attention or a prosecutor grind their teeth. Ask a question. Find someone smarter. And learn how to use your technology in the courtroom.

Texas Criminal Defense Lawyers Association

Getting Game Day Ready April 1, 2022 Holiday Inn 300 Tuttle Circle Longview, TX 75605

Topic: Scouting | Voir Dire Speaker:

John Hunter Smith

707 W Washington St Sherman, TX 75092-5639 (903) 893-8177 Phone (903) 892-0916 Fax jsmith@wynnesmithlaw.com email www.wynnesmithlawfirm.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

GETTING GAME DAY READY! How to Convey the True Story in Opening Statement/ Closing Argument

San Angelo, Texas January 14, 2022

Presented by: JOHN HUNTER SMITH WYNNE & SMITH 707 W. WASHINGTON STREET SHERMAN, TEXAS 75092 TELEPHONE (903) 893-8177 FACSIMILE (903) 892-0916 jsmith@wynnesmithlaw. com

Telling our Story Through Opening Statements and Closing Arguments

I.Introduction The opening statement and closing argument are some of the most crucial components of any trial. In order to effectively engage and persuade the modern jury we must learn how to present a compelling story that sets forth our framework, and crafts the lens through which the evidence will be viewed. Such a task may seem daunting at first, but persuasive storytelling is an art form that we have been inoculated with our entire lives. Conveying a persuasive story starts with a few universal methods and techniques that have been utilized for decades. This article aims to address a few of these methods and techniques that we can all utilize to more effectively persuade in our opening statement and closing argument.

II.Elements of the Opening Statement The opening statement is your first opportunity to present your case to the jury, and to shape the jury’s perspective of the entire trial. Needless to say, you cannot underestimate the importance of an opening statement. In the words of renowned trial lawyer Gerry Spence: “You can have the greatest close in the world, but if you haven’t won the case by the time that you get to the close, it’s too late. The opening statement is where you win the trial” A good opening statement should serve as the lens through which jurors see the evidence as it comes in over the course of the trial. How we provide the lens is through the art of persuasive storytelling. When telling our clients story we must be cognizant of who our audience is, their limitations and expectations, and what methods and techniques that can be utilized to reach them.

Come Out Swinging Start strong! “You never get a second chance to make a good first impression”. This age-old adage has never been truer than the beginning of a jury trial. The opening statement presents the first opportunity to speak directly to the jury and tell them what the case is all about. As the jury is sworn in and seated in the jury box their interest is at the highest point of the entire trial. In an unfamiliar setting they are curious, fresh and receptive. Don’t waste this opportunity. You have to take advantage of the juries’ heightened interest and proceed with an opening that will convey your message in a way

that they will embrace and enhance the prospect of obtaining the only verdict you and your client care about… Not Guilty. While generalizing human behavior can be difficult, social scientists have taught us that most people make up their minds early and stick with their decision. When making up their minds, people inherently rely upon their widely held beliefs and preconceived notions based on past experiences. This allows people to process large amounts of information quickly and come to a decision. Decisions are comforting. Indecision causes stress, anxiety, and nervousness. Importantly, once making up their minds people are reluctant to reverse their decision. A study from the University of Chicago in viewing human behavior in trial advocacy concluded that 80 percent of jurors form opinions following opening statements and do not change those opinions after hearing the evidence. How the opening begins is so important that it must be structured to grab the attention of the jury when it is at its highest point and then begin to direct the jury through the evidence that you will be presenting. The principle of primacy also dictates the need for a strong beginning. People tend to retain those things they hear first and they are slow to change their view afterwards. If you can express the essence of your case in the first four minutes, you will take full advantage of primacy. So the question becomes, how do we start strong and communicate our client’s defense in a persuasive manner that takes full advantage of the juries receptiveness and malleability?

Develop a Theme It’s critical in the opening to construct a framework as to how the jury will view the case. It is widely recognized that jurors process information in light of the theme that is introduced and they adopt. Any information that is consistent with the adopted theme is easily remembered and information not consistent with the theme is forgotten or disregarded. A major battle is won when the jury views the evidence in the case through the framework that you have constructed for them. When delivering your opening statement, you should focus on providing the jurors with factual information that is designed to create an embedded memory. As the case unfolds this embedded memory will cause each juror to perceive the evidence in accord with your theory of the case, i.e., the fact based reason why you are entitled to the jury's verdict. In opening you will try to convey a view and feelings to your listening audience. Your view will be slanted toward building a story of the case that will evoke the ultimate response you seek - a not guilty verdict. Jurors do not come into court empty, void of any knowledge or feelings. Their minds are not a blank slate ready for you and the prosecutor to fill with only the evidence of the case. They absorb information based upon their values and experience. It has been said that every case turns on a few fundamental concepts. Identifying those concepts and weaving them into your theme is the key to success. If you do not have a theme, you will be like a warrior going into battle without a sword. 3

What is a theme? It is a short, simple concept that states a capsule of your case. It provides essential meaning to the jury and helps them to organize and remember the case facts and is the means to reach the ultimate action in the case. If you had to explain the case in 30 words or less, what would it be? If you had to explain it to your children when they ask you what the case is about, how would you explain it in a short, concise statement? If a neighbor asks what kind of case are you working on, how would you tell them what the case is about? A theme should be easy to remember, favorable to your client, and consistent with universal concepts of fairness and what is right. When identifying a theme, it should be based on life’s experiences, human values, and general principles that are inherent within our society. You then arrange the facts in support of the theme to persuade the jury. The right theme helps jurors rationalize any and all of the case conflicts and gives them the means to justify the desired result. If you fail to give the jury a theme, they will come up with one on they’re own, or worse, use the prosecutor’s theme. The theme must be told so that each juror can index his or her own favorable beliefs and principles to that theme and use it in processing the evidence to reach a conclusion or result in your favor. Jurors use conceptions based on past experiences to organize information and come to a quick conclusion. Verdicts almost always connect the juror’s mind to points made in the opening. So how do we effectively convey our theme?

Tell a Story You do this by presenting the information and evidence you have so that the jury will understand it and its relationship to the theme. We persuade by delivering and telling our story to the jury. Much of what we learned in life, we learned through stories. How we tell someone about an event is through a story, with action, suspense, drama, vivid character development and foreshadowing. You want to make your opening statement like a good story. A story can make the complex simple, the boring interesting, and the dull exciting. It should have a beginning, middle and end. In the beginning, you grab their attention with your impact theme. Stories are based on facts, not abstractions. Keep in mind that your opening is when the jurors will begin to form their first mental pictures of your case. You want the mental images to be vivid, but they also have to be factual. They must make logical sense. The story must be simple in the sense that the jurors must be able to fully grasp it.

Know your audience and shape your story to appeal to the commonly held values. (e.g. sense of justice and fairness, righting a wrong, preventing a wrong, etc.) Tell the heart of your story in the present tense, concentrating the jurors' attention on the relevant conduct and event(s) and not on what each witness will testify to in court. Eschew the "Jonny will testify to blah-blah-blah. Then Susie will testify to blah-blahblah. Then Officer Jones will testify to blah-blah-blah" method. You'll get the jurors on your side of the case during your opening by helping them mentally visualizing what happened in real life, not what is going to occur in the courtroom. While depicting your story and creating these mental images, don’t forget to tell the Jury what they will not hear, but may expect. Sequencing of the facts is also important in how you tell your story. Who are you going to focus on? When you begin to tell the story, consider starting with the defendant’s conduct. Studies have shown that you achieve the most impact if you start with the defendant’s conduct. The middle is where you provide the facts and evidence with the theme woven throughout. Keeping in mind the principles of persuasion, the middle of the story should employ techniques such as rhetorical questions, analogies, visual aids, and the rule of threes. Use passion to draw the audience into the story and use your theme to relate to general principles and universal truths. (e.g. good vs. evil; abusive vs. fair; trust vs. betrayal; chaos vs. order; knowledge vs. ignorance, etc…). Don’t forget to drive home roadblock facts that will maximize the chance the jury will examine the prosecutions case with a critical eye. The end or conclusion should be dramatic and powerful and connect to your opening. It should give them a call to action and involve them in the process of making the right and just decision. A well-told story engages the jurors and provides them with a framework they can use to filter and organize the evidence they will see and hear during the trial So how do we tell a good story?

Tools of Persuasion How we persuade is how we deliver and tell our story to the jury. Be a persuader and not a lawyer. You must learn to walk the tightrope of persuasion without falling into the pit of objectionable argumentation. Many years ago, the Roman lawyer Cicero, set forth Six Maxims of Persuasion. These maxims can be used and incorporated into any opening to effectively communicate and persuade the jury. 1. Understand that what reaches the mind moves the heart. Passion, as well as reason, must be used.

2. Understand motives to understand human behavior. The defendant’s conduct is an essential part of persuasion and should come first. 3. Move from the particulars of the case to universal truths. Social importance of taking action is an important element in the story. 4. Draw the audience into the story. Tell the story in the present tense as if the jury was watching the events unfold in front of them, rather than hearing a narrative of something that happened in the past. 5. Expose the flaws in the opponent’s position. 6. Communicate your passion and logic in words the jury will understand.

Communicate with Conviction Social scientists have studied the impact of messages related to the three primary channels of delivery: verbal (words), vocal (how the message is delivered), and nonverbal (facial expressions, eye movement, body positions). What is said (the words) accounts for only 10 percent of the impact. Our voice message, inflection, and resonance, account for 40 percent. By far the most important aspect of the message is nonverbal, which delivers 50 percent of the impact. You have to use all three means of delivery if you are going to persuade in your opening. Repetition Repeat words and your theme. Repeat the theme throughout the opening. Repeating words or phrases can give them more significance and importance. Rule of Three Social scientists again tell us that information is best understood when it is presented in groups of threes. Use trilogies to drive the point home. Some powerful three-word combos are: •

Describing interactions between police and our clients: Abused, taken advantage of, violated;

•

No loss of faculties: Reacted normally, walked normally, talked normally;

•

Discrediting State’s science: Inaccurate, unreliable, and unscientific;

•

Reasonable doubt: Wavering, unsettled, unsatisfied.

Common Examples ◦

He walked normally, talked normally, and stood normally on the videotape.

◦

Without a check for calibration with each test, this machine is inaccurate, unreliable, and unscientific.

◦

I expect the judge to tell you that reasonable doubt may come from the evidence, a lack of evidence, or a conflict in the evidence. (Then consider using a chart where you can list facts in each category.) If your minds are wavering, unsettled, or unsatisfied, then that is the doubt of the law, and in that event you should acquit the defendant.

Rhetorical Questions Is that fair? What would it be like to be accused of something you didn’t do? Is that right? Why would an officer fail to do that? Why would the State not tell you about that? Visual Aids Visual aids may be effective in conveying a point. Just be careful not to use too many. Charts and diagrams can be helpful in understanding. Jurors remember what they see and hear better than what they just hear. Remember, persuasion is the key. Think “show and tell”. You can tell an effective story in such a manner using common rhetorical aids. Retention is six times greater when information is presented by visual and oral means than when the same information is presented by the spoken word alone. The old saying that “a picture is worth a thousand words” turns out to be true, particularly when it comes to persuasive storytelling at trial. Visual information assists juries in a number of ways that are extremely useful, if not essential. Visual aids help make difficult concepts imaginable by prompting sensory imagery with concrete depictions rather than abstract ideas; it tightens the proximity between the information and the jury by decreasing the number of mental steps the jury must take to convert information to an understandable form; and it promotes recall by using memory-encoding pathways that are more effective than the pathways that encode memories of words alone. Further, combining images with words may have an exponential effect on a juror’s ability to remember information. Cognitive science indicates that if information is coded redundantly with both words and images people are more likely to remember that information. Finally, in addition to aiding memory, images can improve comprehension. Thus, images have some advantages over words, and because graphic novels tell stories with both images and words, they are excellent vehicles for storytelling analysis.

Foreshadowing Foreshadowing is the technique of indicating your future argument beforehand by creating an expectation in the jurors' minds. You can do this in opening statement when you come to a key part of the story by making a parenthetical statement, an aside, to the effect that "This is an extremely important part of what happened, and later in the case we are going to talk about it and have you understand why it's so important”. Humanizing Pull back the curtain and let the Jury know what you want them to know about your client. If you allow your client to be an inanimate object then they will be viewed and treated as such. As Gerry Spence says, let them be real people; real people have faults. No matter who your client is or what they may have done, he or she possesses some qualities that people will identify with. Explore how to get these good character traits before the jury, without opening unwanted doors. Again, borrowing from Spence, with a few additions, here are some examples: • • • • • • •

Hard working Honest Simple Not the type to be on welfare Worked with kids Cared about the poor Faithful member of ______ church

Avoid Clichés and Boilerplate Don’t waste time getting to your story. Avoid pointless clichés and boilerplate statements that don’t add to your story. Some common examples are: “What I say is not evidence” “This is a road map” “The evidence will show” “It is like a jigsaw puzzle” “At the close of the case, the court will instruct you” “It is your decision to determine the facts” “It is now my opportunity to give an opening statement to tell you what I think the evidence will be.” If you do that, by the time you are finished with your introductory remarks, the jurors will be thinking about something other than you. It wastes time and gets into the fourminute window—that period of time when the jury is most receptive and you have to get your point across or the window will be shut. 8

Do Not Give the Jury Unconnected Facts Explaining and arguing, while great at showing rhetorical skills, is not as persuasive as storytelling. A cold listing of facts to which each witness will testify fails to persuade. It is recognized that when people receive random data or unconnected facts, it seldom leads to understanding or knowledge. Data does not equal understanding, and understanding is the key to persuasion. Henry David Thoreau said “It takes two people to speak the truth, one to speak it and one to hear it.” The overall goal is to tie in the facts to your theme and present them in a manner that leaves the Jury with only one conclusion--the one you are advancing. Avoid Overstating and Reveal Weakness Never overstate what your case is or state something that you will not be able to prove. Credibility is an important factor in a jury trial, and the loss of credibility will result when you overstate what your evidence may be. Reveal your weaknesses. To defuse or mitigate the known problems or weaknesses in your case, identify those matters early on. This will cause a jury to emotionally identify with your client. Explain before you have to contradict. Anchoring Anchoring is a rhetorical device during which you refer to a certain event, theme, or piece of evidence at a particular place in the courtroom. Every time you come back to it, the jurors are anchored by that position. Avoid Legal Talk Get on the jurors’ level. Word choice that may impress your fellow legal colleagues has the high potential to confuse, mislead, or lead to a misunderstanding of the point you’re trying to convey. You don’t have to be Forrest Gump, but avoid the legalese and use everyday language. The words should be simple and direct in everyday English. Richard Leder in The Miracle of Language said that 11 words account for 25 percent of all spoken English, and 50 percent of the most common spoken words are one syllable. Be Credible Always be the most credible person in the courtroom. This deserves its own section because it is so critical. Your credibility is the most important thing you have. Tell a compelling, convincing story, but do not overdo it. Make sure your story is true, and that you can prove it. If not, and the prosecutor capitalizes on exposing the defense lawyer’s questionable credibility, the case is lost. Whatever you do, do not overpromise and under deliver.

Conclude, empower, and call the jury to action. There are many different ways to conclude. Remember the recency effect. Jurors will recall most what you tell them at the end of your opening. Strive to impassion and empower the jury. End Strong End as you began, with a strong statement that ties your entire case together and gives the jury a call for action. The opening is the most critical point of the case since you have the undivided attention of the jury. They are fresh, eager, and anxious to hear why they are seated in the jury box. With a powerful theme stated forcefully at the beginning of the opening, then developed into a story that you present with a beginning, middle and end, you will take the jury where you want them to go—accepting your theme and making it their own by reaching a verdict in favor of your client. How your opening is presented will decide how your case will end. So, conclude your opening confidently, and with an unambiguous message. You must leave the Jury with a clear understanding of your client’s position in the case, a basis for believing you side, and an appreciation for their role in the rest of the trial.

III.

Closing Argument “The only cases that can be won in the final argument are those that have not been previously lost. On the other hand a good case can be lost in those fatal, final moments.” -Gerry Spence Closing argument is the culmination of all of your hard work during the trial. It’s your last chance to make a positive impression before the jury begins deliberations. However, a good case can be easily lost in closing argument. Don’t waste this opportunity by a mere summarization of the evidence presented during the trial. A wellcrafted, well-delivered closing argument will encapsulate your client’s story and build upon the framework you laid during your opening statement. Your closing should grab the jurors’ attention, cause them listen intently, and remember what you’ve said. Most importantly, a persuasive close will cause the jurors to invest in your client’s story with their hearts and minds. The persuasive methods discussed above that make an effective opening statement are equally applicable to crafting a powerful and persuasive closing argument. Additionally, the following techniques will allow you to formulate, and deliver a more effective closing argument.

Closing Argument Comes First When it is time for closing argument it is no time to start deciding what to say. The essence of persuasive closing arguments is known and practiced well before jury selection starts. The closing must be theory driven and dovetail with the message delivered in the opening statement. It’s never too early to start thinking about your closing. I find it essential to begin drafting your closing argument even before you prepare your opening statement. This will assist you in developing the theme of your case, and allow your formulate a story that will encapsulate unified, and easy to follow arguments throughout the trial. I find it helpful to think of fact-based conclusions you want the jury to reach and then work backwards to develop questions that would lead to those conclusions. These questions will assist you in developing a theme and corresponding story that drives home why you win. In general, a good case theme has the following characteristics: •

It clearly tells the jury what verdict you want and why

•

It is logically based on the evidence

•

It is consistent with common sense

•

It accounts for all of the important evidence

•

It concentrates on the most important items of evidence

•

It avoids legal technicalities as much as possible

•

It explains both why you are right and why your opponent is wrong

•

It uses specific evidence and specific legal principles, not generalizations

•

It suggests reasonable ways to resolve disputes

•

It appeals to the jury’s sense of fairness and justice

•

It is entertaining and incorporates visual aids

Arm your Troops Closing argument should not be predicated on recruiting new jurors to swing your way, but for arming those already on your side. You are the general who provides a battle plan to your troops who will fight for your side in the jury room. Your argument should try to accomplish six goals: 1. Reiterate your theory of the case and make sure the jurors understand it. The importance of having a clear, simple theory cannot be overstated. It provides direction to your jurors. 11

2. Emphasize favorable evidence, but don’t waste time with a detailed rehashing of every detail. 3. Rebut your opponent’s allegations though your own story. However, don’t focus too much on the prosecutions version of events and evidence, but instead weave your rebuttal through your own story. 4. Suggest specific ways for the jury to resolve conflicts in your favor — both affirmative reasons why your position is right, and negative reasons why your opponent’s position is wrong. 5. Explain the law and show how the evidence requires a verdict in your favor. 6. Most importantly, reduce your case to a good story, including plot, motives, adventure, battles between good and evil, human weaknesses, temptation, drama, and a moral at the end. Facilitation Not Declaration Communication, in its simplest terms, involves the sending of information and the receipt of that information. When talking about verbal communication the process implies that there is a speaker and a listener. If the jurors don’t listen there is no communication. If you make the closing about you, by talking at them instead of with them, by being condescending in your voice and mannerisms, by telling them what to do instead of showing them the way and letting them get their on their own, they will tune you out and turn you off. We must learn to be facilitator with our argument and guide the jury through the evidence and law in a way that supports the ultimate decision we want them to reach.

Principles of Effective Argument Use the theme from your opening statement. This is your opportunity to drive home the theme you supplanted in the mind of the jury during opening statement, and wove throughout your direct and cross examinations. Keep it simple. Simple does not mean simplistic; it means uncomplicated. Concentrate on the real disputes, resist the temptation to offer several alternative theories, and avoid becoming bogged down in reviewing uncontested or trivial matters. Social psychologists indicate that about seven points are all you can argue persuasively. After that, arguments become confusing. Be specific. Facts are more important than generalizations or rhetoric. Be specific about the important factual points, and the details that corroborate them. Be explicit. Psychologists have demonstrated that an argument is more persuasive if the desired conclusions are explicitly drawn than if you leave it up to the jury to draw its own conclusions. Jurors will generally hold more strongly to a conclusion they reach on their own, but if you don’t lead them a conclusion, the juror may reach one you don’t like. 12

Be organized. Remember the concepts of primacy and recency. Jurors tend to remember more of what they hear at the beginning and what they hear at the end. Do away with the formal introductions and platitudes. Stick to your Story. Don’t waste time attacking the prosecutions story or theory, instead focus on your own and incorporate the prosecutions weaknesses throughout. Use visual aids. Use them! But do not limit yourself to exhibits already introduced. Charts can be prepared specifically for closing argument, and arguments can be illustrated via PowerPoint, ELMO, or flip board. The uses of descriptive exhibits are as varied as your creativity. Support your positions with jury instructions. Rather than just summarize all the law at one time, weave instructions into the fabric of your argument. Humanize and Personalize. You should make conscious efforts to personalize your client by referring to him or her by name and telling the jury personal things about your client’s life throughout your story. Always remember, if you present your client in an inhuman manner the jury will to. Use analogies to common experiences. If you think a jury may have difficulty understanding a legal concept, try to analogize it to some common experience. Be positive. Spend your time arguing your own case, not the prosecutions. Emphasize your strengths and concentrate on your main points. Discuss the prosecution’s case only to the extent necessary to refute it briefly. Admit your weaknesses. Every case has weaknesses. You should confront those inherent in your theory, admit them, and deal with them as best you can. The jury is probably already aware of them from the evidence, and the prosecution is sure to bring them up, so you cannot make them go away. Therefore, you might as well at least earn points for candor and honesty. However, the dividing line between a candid discussion of your weaknesses and a defensive argument that focuses on your opponent’s evidence is a fine one. It is not necessary to confront every piece of contradictory evidence. Rather, you should discuss and explain away the major weaknesses in your own theory.

Conclusion The final part of your argument should be a strong statement of your position. Who did what to whom, why did they do it, why is it legal (or illegal), and why does it entitle you to a verdict in your favor. Keep your summary brief and stick to your own case. Don’t rehash both sides of the argument or end on a defensive note, because that gives too much credit to your adversary’s position. Make clear to the jury exactly what verdict you expect them to return. If they made any promises to you in voir dire, remind them of 13

that. Then, conclude with a strong finish that sums up the central theme of your argument and the justice of it. Thank the jury on behalf of your client, and sit down.

Texas Criminal Defense Lawyers Association

Getting Game Day Ready April 1, 2022 Holiday Inn 300 Tuttle Circle Longview, TX 75605

Topic: Kick-Off & Red Zone | Opening and Closing Arguments Speaker:

Robert Gebbia 3030 Nacogdoches, Ste 222g San Antonio, TX 78217 (210) 222-9132 Phone (888) 519-8229 Fax bobby@hgclaw.com email www.hgclaw.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Getting Game Day Ready April 1, 2022 Holiday Inn 300 Tuttle Circle Longview, TX 75605

Topic: Keep Your Head in Game | Mental Health Speaker:

David Bost

600 Scott Ave Ste 204 Wichita Falls, TX 76301-2531 (940) 766-8199 Phone (940) 716-8561 Fax dtbost@gmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Getting Game Day Ready 2022

Keep Your Head in the Game: MENTAL HEALTH

Speaker:

David Bost

Wichita County Public Defender’s Office 600 Scott Street Wichita Falls, Texas 76301 Office: 940.766.8199 Cell: 806.448.9487 David.Bost@co.wichita.tx.us

Keep your head in the Game: (Mental Health) By David Bost The purpose of this paper is to give you a basic reference user guide to major aspects of our law as it relates to mental health and to touch on attorney mental health. This paper is designed to be brief so that it is usable at a glance if necessary. By their very nature, summaries leave out some details that may be important in your case, so you’d be well served to pull the precise statutes identified in this summary as necessary. Sections: Clients

pages 3-12 Jail Identification/Sandra Bland Act

pages 3-5

Mental health bonds

pages 6-7

Competency

pages 8-12

Sanity

pages 11-12

Attorneys

pages 13-16

Burnout

pages 13-16

Substance abuse

pages 16

Page 2 of 16

CLIENTS Jail identification

In response to Ms. Sandra Bland’s untimely death in the Waller county jail, 1 the “Sandra Bland act” was passed in 2017 with (presumably) good intentions. Among other things, it amended the Code of Criminal Procedure to attempt to require diversion of people who are booked into jail with mental illness or disability to appropriate treatment. 2 Unfortunately, in most counties the changes have mostly been ignored, possibly due to lack of adequate funding for the appropriate mental health diversionary treatments. 3 You could take advantage of some of the provisions of the act, but it comes with risk to your client, as you will observe below. This section will give you the rundown of the applicable provisions of the Chapter 16.22 of the Code of Criminal Procedure. The act is triggered upon jail officials “receiv[ing] credible information that may establish reasonable cause to believe that the defendant has a mental illness or is a person with an intellectual disability.” 4 At that point the jail must give notice of the information, along with other information relevant to that determination, to a magistrate within 12 hours. 5 If the Magistrate finds “reasonable cause to believe” that the defendant has a mental illness (or is a person with an intellectual disability), then the Magistrate must order the service provider that contracts with the jail (or another qualified mental health expert) to interview the defendant (by phone or in person) 6 and provide a report to Magistrate. 7 That report should include: 8 (1) Whether the defendant is a person who has a mental illness or is a person with an intellectual disability; (2) Whether there is clinical evidence to support a belief that the defendant may be incompetent to stand trial and should undergo a complete competency examination; and https://en.wikipedia.org/wiki/Death_of_Sandra_Bland S.B. No. 1849 “Sandra Bland Act” 3 Some limited grant funding was made available as part of the act. See Julie Anderson’s “Senate Bill 1849 Breaking Down the Sandra Bland Act – 85th Legislature” December 3, 2017 by County Progress 4 Tex. Code of Criminal Procedure art. 16.22(a)(1) 5 Id. 6 Tex. Code of Criminal Procedure art. 16.22(a)(4) 7 Tex. Code of Criminal Procedure art. 16.22(a)(1) 8 Tex. Code of Criminal Procedure art. 16.22(b)(1) 1 2

Page 3 of 16

(3) Any appropriate or recommended treatment or service. The report is “confidential” but may be used for basically any purpose you’d expect in the case itself, including in punishment as authorized by statute (the Statute does not make any notes on authentication). 9 The magistrate shall provide copies of the written report to: (1) The defense counsel; (2) The attorney representing the state; (3) The trial court 10 A review of relevant case law did not yield any notable results as of Dec. 1, 2021. Several defendants have attempted to use the fact that a report of some kind was made, and that their lawyer did not follow up on that for mitigating information, in an attempt to overturn their convictions for ineffective assistance of counsel. Those attempts have so far been fruitless. 11

Tex. Code of Criminal Procedure art. 16.22(c)(3) Tex. Code of Criminal Procedure art. 16.22(b)(1) 11 . See Leshikar v. State, Tex Court of Appeals, 3rd Dist. 2017 and see also Alaniz v. State, Tex Court of Appeals, 13th Dist. 2011 9

Page 4 of 16

Jail receives credible information that may establish reasonable cause to believe that the defendant has a mental illness

Jail has less than 12 hours to report the informaiton to a magistrate

Magistrate shall order the service provider that contracts with the jail

That provider is supposed to interview and provide a report to Magistrate and include information relevant to competency

The magistrate shall provide copies of the report to the defense counsel, the attorney representing the state, and the trial court

Jail Identification/Sandra Bland Act Page 5 of 16

Mental Health Bonds Similar to the Sandra Bland Act, the purpose of the mental health bonds statute contained in Art. 17.032 of the Texas Code of Criminal Procedure appears to be motivated by good intentions of trying to divert people out of jail and into the hands of competent mental health professionals. However, also similar to Art. 16.22, these provisions appear to go mostly unused except in the largest of Texas Counties as the local mental health authorities do not have the resources to take on their end of the responsibilities. 12 A magistrate is supposed to release someone on a 17.032 bond if ALL of the following are met: 1) The Defendant is not charged with and has not been previously convicted (includes Deferred adjudication) of a violent offense; 2) The Defendant is examined by the service provider; 3) A written report by the service provider is submitted to the magistrate 4) That report concludes that the defendant has a mental illness or is a person with an intellectual disability; 5) That report concludes that the defendant is competent to stand trial 6) That report recommends mental health treatment or intellectual and developmental disability services for the defendant, as applicable 7) The magistrate determines that appropriate community-based mental health services for the defendant are available 8) The magistrate finds, after considering all the circumstances, that release on personal bond would reasonably ensure the defendant’s appearance in court as required and the safety of the community and the victim of the alleged offense The magistrate, unless good cause is shown for not requiring treatment or services, will require as a condition of release on personal bond under 17.032 that the defendant submit to outpatient or inpatient mental health treatment as recommended by the service provider if the mental illness is Chronic or if the client’s ability to function independently will continue to deteriorate if the client does not receive the recommended treatment or services 13 Neither my jurisdiction, nor any similarly situated jurisdiction around Wichita County uses 17.032 bonds; however, I hope yours does in the appropriate cases. You may call your local mental health authority and see if you can talk them into taking on some of these clients before you make a motion for this bond before a Judge. 13 Tex. Code of Criminal Procedure art. 17.032 (b) 12

Page 6 of 16

Charge/History • not charged with and has not been previously convicted of a violent offense • DACS counts as a conviction

Service Provider Report • examined by the service provider • written report submitted to the magistrate • concludes that the defendant has a mental illness and is competent to stand trial • recommends mental health treatment or services for the defendant

Magistrate • the magistrate determines that appropriate community-based mental health services for the defendant are available • release on personal bond would reasonably ensure the defendant’s appearance in court as required and the safety of the community and the victim of the alleged offense

Mental Health Bonds/ Art. 17.032

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Competency Everyone (even lawyers) are initially presumed competent. 14 However, a defendant may not be considered competent if the defendant, at the present time, either 1) does not sufficient present ability to consult with the lawyer with a reasonable degree of rational understanding; 2) does not have a rational as well as factual understanding of the proceedings against the person.; 15 or 3) lacks the capacity to “engage” with his counsel rationally or make rational choices with respect to his legal strategies and options 16 Any party or the court may raise the suggestion of incompetency. 17 The court ought to raise the issue on its own motion, if “evidence suggesting the defendant may be incompetent …comes to the court’s attention.” 18 However, the case law on that matter appears to give the court extremely broad discretion to write off absolutely crazy behavior. 19 Effectively, you as the defense lawyer, has the burden to raise the issue. Once the issue has been raised by any “credible source” 20 then the Court “shall” hold “informal” inquiry to see if there is “some evidence from any source that would support a finding that the defendant may be incompetent to stand trial.” 21 Simply saying categorically that you think your client is incompetent is not enough to warrant more than an “informal inquiry” even if that is paired with “disruptive and uncooperative behavior” 22 At this hearing, the court is to only consider evidence of incompetency and is not to consider evidence of competency. Failure to follow this rule may result in reversible error. 23 see Tex. Code of Criminal Procedure art. 46B.003(c) Tex. Code of Criminal Procedure art. 46B.003(a) 16 Turner v. State, 422 S.W.3d 676, 2013 Tex. Crim. App. LEXIS 1592 (Tex. Crim. App. Oct. 30, 2013), reh'g denied, No. AP-76 580, 2014 Tex. Crim. App. LEXIS 445 (Tex. Crim. App. Apr. 2, 2014) 17 Tex. Code of Criminal Procedure art. 46B.004 18 Tex. Code of Criminal Procedure art. 46B.004(b) 19 Emotional outbursts and defenses contrary to the law with will not automatically trigger the court to start the competency inquiry. ( Charley v. State, No. 05-08-01691-CR, 2011 Tex. App. LEXIS 885 (Tex. App. Dallas Feb. 8, 2011)(testified sex abuse was a cultural thing).( Taylor v. State, 948 S.W.2d 827, 1997 Tex. App. LEXIS 2438 (Tex. App. San Antonio May 7, 1997, no writ)(bizzare behavior not necessarily enough).( Sparks v. State, No. 2-07-285CR, 2008 Tex. App. LEXIS 6818 (Tex. App. Fort Worth Sept. 11, 2008)(punched hole in wall). 20 Tex. Code of Criminal Procedure art. 46B.004(c-1) 21 Tex. Code of Criminal Procedure art. 46B.004 22 Jones v. State, No. 11-17-00049-CR, 2019 Tex. App. LEXIS 1277 (Tex. App. Eastland Feb. 21, 2019); Keigley v. State, No. 05-17-00436-CR, No. 05-17-00437-CR, 2018 Tex. App. LEXIS 2323 (Tex. App. Dallas Mar. 30, 2018). 23 Boyett v. State, 545 S.W.3d 556, 2018 Tex. Crim. App. LEXIS 126 (Tex. Crim. App. Apr. 25, 2018, no pet.) 14 15

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Upon finding “evidence to support finding of incompetence,” court shall stay all further proceedings. 24 This finding also triggers the requirement that the court order a competency evaluation by a qualified evaluator. 25 Evidence from this evaluation, unlikely a sanity evaluation, cannot be used against the defendant in future guilt/innocence/punishment proceedings unless the defendant opens the door by offering the evidence. 26 The evaluation is supposed to be completed in 30 days. 27 The evaluator is ordered to consider the following factors: (1) the capacity of the defendant during criminal proceedings to: (A) rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings; (B) disclose to counsel pertinent facts, events, and states of mind; (C) engage in a reasoned choice of legal strategies and options; (D) understand the adversarial nature of criminal proceedings; (E) exhibit appropriate courtroom behavior; and (F) testify; (2) as supported by current indications and the defendant’s personal history, whether the defendant: (A) is a person with mental illness; or (B) is a person with an intellectual disability ; (3) whether the identified condition has lasted or is expected to last continuously for at least one year; (4) the degree of impairment resulting from the mental illness or intellectual disability , if existent, and the specific impact on the defendant’s capacity to engage with counsel in a reasonable and rational manner; and (5) if the defendant is taking psychoactive or other medication: (A) whether the medication is necessary to maintain the defendant’s competency; and (B) the effect, if any, of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings. 28

Tex. Code of Criminal Procedure art. 46B.004(d) Tex. Code of Criminal Procedure art. 46B.005 26 Tex. Code of Criminal Procedure art. 46B.007 27 Tex. Code of Criminal Procedure art. 46B.025-.026 28 Tex. Code of Criminal Procedure art. 46B.024 24 25

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If the parties’ attorneys do not agree as to whether the court should find the defendant competent or not, trial on competency is held. 29 Yes, the rules of evidence apply. 30 The burden is on the defendant’s attorney to show by a preponderance of the evidence that the defendant is not competent to proceed, unless, the person has previously been found not competent in the same case. 31 Either party may request a Jury to make the determination and the verdict must be unanimous. 32 It cannot be the same jury as is convened for the guilt/innocence/punishment phases. 33 There is no interlocutory appeal from a competency trial verdict. 34 When a person is found to be competent, the trial on the merits continues. 35 When a person is found to be incompetent, the judge has several options: 36 1) Commit the defendant to state hospital (for a class A or higher offense) 2) Commit the defendant to jail based restoration 3) Released on bail 37 and order outpatient restoration 38 Should the judge commit a defendant to a facility, the code requires the local Sherriff’s department take custody of the person for that transport. 39 The committed defendant may only be held initially for 120 days on a felony and 60 days on a misdemeanor. 40 The initial commitment may be extended for 60 days at the request of the head of the facility or program if there is sufficient evidence to believe that the defendant will attain competency in that time. 41 The court can only order one of these commitments and subsequent extension in connection with the same offense. 42 Tex. Code of Criminal Procedure art. 46B.054. notably, the client is not required to sign off on an agreed judgement of incompetence. 30 Tex. Code of Criminal Procedure art. 46B.008 31 Villarreal v. State, 699 S.W.2d 364, 1985 Tex. App. LEXIS 12445 (Tex. App. San Antonio Oct. 23, 1985, no writ). (TO preserve this, you have to fight the restoration report from t the state hospital.) 32 Tex. Code of Criminal Procedure art. 46B.0051(a) and 46B.052 33 Tex. Code of Criminal Procedure art. 46B.051(c) 34 Tex. Code of Criminal Procedure art. 46B.011 35 Tex. Code of Criminal Procedure art. 46B.053 36 Tex. Code of Criminal Procedure art. 46B.071 37 Tex. Code of Criminal Procedure art. 46B.071 38 Tex. Code of Criminal Procedure art. 46B.0711 39 Tex. Code of Criminal Procedure art. 46B.075 40 Tex. Code of Criminal Procedure art. 46B.073(b) 41 Tex. Code of Criminal Procedure art. 46B.079(d) 42 Tex. Code of Criminal Procedure art. 46B.085(a) 29

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If, in the initial competency evaluation or in the subsequent commitment, it is determined that the defendant is unlikely to regain competency “in the foreseeable future”, the only options available to the court outside the State dismissing the charges, is civil commitment under the Subtitle C, Title 7, Texas Health and Safety Code. 43 This can be problematic in that the reasons for civil commitment do not include incompetency 44 and requires at least two certificates of medical examination by licensed physicians. 45 At the risk of oversimplifying, civil commitment in this context requires that the examined person is a person with mental illness; and as a result of that illness the examined person is (a) likely to cause serious harm to the person or to others; or (b) is suffering severe and abnormal mental, emotional, or physical distress; experiencing substantial mental or physical deterioration of the proposed patient's ability to function independently, which is exhibited by the proposed patient's inability, except for reasons of indigence, to provide for the proposed patient's basic needs, including food, clothing, health, or safety; and not able to make a rational and informed decision as to whether to submit to treatment 46 The maximum amount of time a person can be held on a commitment is the maximum allowable punishment for the non-enhanced offense. 47 Misdemeanors must be dismissed when the max is served under commitment, there is no such rule for felonies. Sanity In Texas, the insanity defense is codified under Penal code Sec. 8.01 and Tex Code of Criminal Procedure chapter 46C. It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong. 48

Tex. Code of Criminal Procedure art. 46B.071(b) Tex. Health and Safety Code Sec. 574.034-.035 45 Tex. Health and Safety Code Sec. 574.009(a). 46 Tex. Health and Safety Code Sec. 574.034-.035 47 Tex. Code of Criminal Procedure art. 46B.0095; Ex parte Reinke, 370 S.W.3d 387, 2012 Tex. Crim. App. LEXIS 814 (Tex. Crim. App. June 20, 2012, no pet.) 48 Tex. Penal Code Sec. 8.01 43 44

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In the words of Rubio v. state 49 ”the defendant must prove he or she had or was in an extreme delusional state that caused [him or her] to misperceive the very nature of [his or her] acts, or to believe that in acting, [he or she was] obeying rather than violating the laws of society.” After Hinkley and Frazier were found not guilty by reason of insanity, Texas no longer recognized “irresistible impulse” are part of the insanity defense. “Wrong[fulness]” under Texas law does not mean moral wrongfulness. It mean “illegal.” 50 In other words, if your defendant killed those girls because he believed they were angels who were suffering on earth and needed to be sent back to heaven, but he knew that killing them was technically illegal under the law; then, your pretty well out of luck under Texas law. In an extremely annoying 51 rule, the legislature prevents attorneys from informing the jury of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned. 52 Voluntary intoxication is not a defense. 53 Interplay between drug use and mental illness does not necessarily prevent the argument of insanity, but it is difficult to find experts who will say that a person was insane when they were also voluntarily intoxicated. The Burden is generally on the Defendant to prove insanity by a Preponderance of the evidence, then the burden shifts to the state to prove beyond a reasonable doubt that the defendant was not insane at the time of the offense 54 unless they have previously been adjudicated insane in which case state has to prove sanity beyond a reasonable doubt. 55 The Defense must give notice 20 days before trail or pretrial hearing, or it will bar presentation of the defense. 56 The State may exercise the option of having their own expert evaluate the Defendant for sanity. 57 Unlike competency, the statements made during sanity evaluations may be used against the defendant for any purpose.

Rubio v. State, 241 S.W.3d (Tex. Crim. App. 2007); Tex. Code of Criminal Procedure art. 46C.153(a)(2) Ruffin v. State 270 S.W.3d 586 (Tex. Crim. App. 2008) 51 Personal experience 52 Tex. Code of Criminal Procedure art. 46C.154 53 Tex. Penal Code Sec. 8.04 54 Manning v. State, 730 S.W.2d 744, 748-49 (Tex.Crim.App. 1987) 55 Riley c. State 830 S.W.2d 584 (Tex Crim App 1992). 56 Tex. Code of Criminal Procedure art. 46C.051-052 57 Tex. Code of Criminal Procedure art. 46C.104 49 50

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ATTORNEYS Burnout I have been frustrated by the amount of times “burnout” has been mentioned in self-care type CLEs with very nebulous definitions and absolutely no evidence based research. I am not a statistician, nor am I a psychologist; but, I dug deep and found some peer reviewed meta-analysis on what is out there research wise. The following is a summary and amalgamation of the most useful peer reviewed articles on the subject. 58 To be clear, most of this information is ripped right out of their research papers which I encourage you to read. Burnout is a psychological syndrome emerging as a prolonged response to chronic interpersonal stressors on the job. 59 It is generally characterized in research as “overwhelming exhaustion, feelings of cynicism and detachment from the job, and a sense of ineffectiveness and lack of accomplishment” 60 This is generally broken down into three components: 1) The exhaustion dimension was also described as wearing out, loss of energy, depletion, debilitation, and fatigue. 2) The cynicism dimension was originally called depersonalization (given the nature of human services occupations), but was also described as negative or inappropriate attitudes towards clients, irritability, loss of idealism, and withdrawal. 3) The inefficacy dimension was originally called reduced personal accomplishment, and was also described as reduced productivity or capability, low morale, and an inability to cope. Research is fairly new and the initial research was more exploratory and descriptive (qualitative) rather than quantitative or treatment oriented. There have been few studies that actually try to determine cause of burnout, most have simply used assumptions and correlations. The few longitudinal studies seem to break down cause into the following categories: workload, control, reward, community, fairness, and values. See chart below for description of each cause.

Christina Maslach 1 and Michael P. Leiter 2. World Psychiatry. 2016 Jun; 15(2): 103–111. Published online 2016 Jun 5. “Understanding the burnout experience: recent research and its implications for psychiatry”; Burnout Research Volume 4, March 2017, Pages 1-11 “Interventions to alleviate burnout symptoms and to support return to work among employees with burnout: Systematic review and meta-analysis” Kirsi Aholaa Salla, ToppinenTannera, Johanna Seppänenb 59 https://youtu.be/rTgj1HxmUbg for an hour long excellent informational on burnout 60 Christina Maslach 1 and Michael P. Leiter 2. World Psychiatry. 2016 Jun; 15(2): 103–111. Published online 2016 Jun 5. “Understanding the burnout experience: recent research and its implications for psychiatry” 58

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• When overload is a chronic job condition, there is little opportunity to rest, recover, and restore balance. • A sustainable and manageable workload provides opportunities to use and refine existing skills as well as to become effective in new areas of activity

Workload

Control

• A clear link has been found between a lack of control and burnout. • When employees have the capacity to influence decisions that affect their work, to exercise professional autonomy, and to gain access to the resources necessary to do an effective job, they are more likely to experience job engagement.

Reward

• Insufficient recognition and reward (whether financial, institutional, or social) increases burnout, because it devalues both the work and the workers, and is closely associated with feelings of inefficacy. • Consistency in the reward dimension between the person and the job means that there are both material rewards and opportunities for intrinsic satisfaction.

Community

Fairness

Values

• When work relationships are characterized by a lack of support and trust, and by unresolved conflict, then there is a greater risk of burnout. • When job‐related relationships are working well, there is a great deal of social support, employees have effective means of working out disagreements, and they are more likely to experience job engagement.

• Cynicism, anger and hostility are likely to arise when people feel they are not being treated with the appropriate respect. • People use the quality of the procedures, and their own treatment during the decision‐making process, as an index of their place in the community.

• Beyond the work-for-money exchange, Values are the ideals and motivations that originally attracted people to their job. • When there is a values conflict on the job, and discover a gap between individual and organizational values, employees will find themselves making a trade‐offPage between work they want to do and work they have to 14 of 16 do, and this can lead to greater burnout.

Burnout has been associated with various forms of negative reactions and job withdrawal, including job dissatisfaction, low organizational commitment, absenteeism, intention to leave the job, and turnover. 61 Cynicism has been found to be the pivotal aspect of burnout to predict turnover. 62 For people who stay on the job, burnout leads to lower productivity and impaired quality of work. As burnout diminishes opportunities for positive experiences at work, it is associated with decreased job satisfaction and a reduced commitment to the job or the organization. The negative reactions and job withdrawal caused by burnout can be “contagious” and compound itself through social interactions. 63 Burnout increases in work environments characterized by aggression. 64 Burnout ought to be considered as a characteristic of workgroups rather than simply an individual mental state. Companies and employers have tried various home remedies to attempt to mitigate burnout including changing work patterns, developing coping skills, obtaining social support, utilizing relaxation strategies, promoting good health and fitness, and developing a better self‐ understanding (via various self‐analytic techniques, counseling, or therapy). Unfortunately, there is very little research that has evaluated the efficacy of any of these approaches in reducing the risk of burnout. 65 Most Randomized controlled studies of interventions did not present effects on exhaustion and cynicism. 66

Schaufeli WB, Enzmann D. The burnout companion to study and practice: a critical analysis. London: Taylor & Francis, 1998. 62 Leiter MP, Maslach C. Nurse turnover: the mediating role of burnout. J Nurs Manage 2009;17:331‐9 63 Bakker AB, LeBlanc PM, Schaufeli WB. Burnout contagion among intensive care nurses. J Advanc Nurs 2005;51:276‐87; González‐Morales M, Peiró JM, Rodríguez I et al. Perceived collective burnout: a multilevel explanation of burnout. Anxiety Stress Coping 2012;25:43‐61. 64 Gascon S, Leiter MP, Andrés E et al. The role of aggression suffered by healthcare workers as predictors of burnout. J Clin Nurs 2013;22:3120‐9; Savicki V, Cooley E, Gjesvold J. Harassment as a predictor of job burnout in correctional officers. Crim J Behav 2003;30:602‐19 65 Christina Maslach 1 and Michael P. Leiter 2. World Psychiatry. 2016 Jun; 15(2): 103–111. Published online 2016 Jun 5. “Understanding the burnout experience: recent research and its implications for psychiatry” 66 Kirsi Aholaa Salla, Toppinen-Tannera, Johanna Seppänenb Burnout Research. Volume 4, March 2017, Pages 1-11 “Interventions to alleviate burnout symptoms and to support return to work among employees with burnout: Systematic review and meta-analysis” 61

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So what can you do? First of all, healthy habits can increase your general happiness level. 67 Just don’t expect to solve your burnout with them. What the literature seems to suggest is to attempt to address the causes of burnout themselves by controlling workload, letting your employees have some professional autonomy, instill a reasonable reward system for yourself or your employees, develop a supportive work community, and find work you can believe in. Substance abuse It’s been beaten into us as lawyers at this point but it’s still worth touching on briefly: substance abuse is a real problem in the attorney community. Nearly 70% of lawyers are likely candidates for alcohol-related problems at some time within the duration of their legal careers. 68 TLAP (Texas Lawyers assistance program) cites that 32% lawyers 30 or younger have dinking problem, 28% lawyers some level depression, 19% symptoms of anxiety, 11% suicidal thoughts at some point. We are supposed to report “knowledge or susp[icion]” of attorneys impaired by chemical dependency on alcohol or drugs or by mental illness to the state Bar; HOWEVER, there is a safe harbor provision in the rules if you make the report to TLAP instead. 69 Some of the warning signs of substance abuse include maladaptive changes in behavior, more confusion or concentration difficulties, absenteeism, wide unpredictable mood swings, excessive paranoia/suspicion, and, well, smelling like alcohol or drugs at work. What Can You Do? If you are concerned or struggling with these issues involving yourself or someone else, consider making a confidential call to: TLAP (Texas Lawyers assistance program) – confidential help 1-800-343-TLAP (8527). They can guide you in the right direction in a calm, nonjudgmental, confidential way. Even if you’re not struggling with these issues, it’s good to remember to exercise good judgement and moderation. 70

67 Cristia´n Coo, Marisa Salanova. Mindfulness Can Make You Happy-and-Productive: A Mindfulness Controlled Trial and Its Effects on Happiness, Work Engagement and Performance. J Happiness Stud (2018) 19:1691–1711 (effects on mindfulness and happiness); Zhanjia Zhang, Weiyun Chen. A Systematic Review of the Relationship Between Physical Activity and Happiness J Happiness Stud - Springer Nature 2018 (discussing exercise and happiness) 68 George Edward Bailly, “Impairment, the Profession and Your Law Partner,” 15 Me. B.J. 96, 96- 97 (April 2000). 69 Texas-Disciplinary-Rules-of-Professional-Conduct 8.03 70 Parker, T., Stone, M., Hayes, I., Comedy Central (Firm), & Paramount Home Entertainment (Firm). (2005). South Park: Season 9, Episode 14 “Bloody Mary”. Hollywood, Calif: Paramount Home Entertainment.

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Texas Criminal Defense Lawyers Association

Getting Game Day Ready April 1, 2022 Holiday Inn 300 Tuttle Circle Longview, TX 75605

Topic: Scrimmaging | Pre-Trial Investigations Speaker:

Phil Baker 1630 N Jefferson St La Grange, TX 78945 (979) 968-3783 Phone (979) 968-4005 Fax phil@philbakerlaw.com email www.philbakerlaw.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Getting Game Day Ready April 1, 2022 Holiday Inn 300 Tuttle Circle Longview, TX 75605

Topic: Rules of the Game/Penalties | Client Relationships & Communications Speaker:

Anne Burnham

2507 NW 36th St San Antonio, TX 78228-3918 (210) 431-5753 Phone (210) 436-3413 Fax aburnham@stmarytx.edu email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Common Ethical Dilemmas for the Criminal Defense Attorney, and How to Avoid Them By Anne Burnham The Texas Rules:

This paper will address some common ethical issues encountered by the modern criminal defense practitioner, how to avoid them and what rules control. As licensed professionals, Texas criminal defense lawyers are bound by the Texas Disciplinary Rules of Professional Conduct ("TDRPC"). These rules are located in the Texas Government Code, Title II, Subtitle G, Appendix A. An updated version of the Rules is also readily accessible on the State Bar of Texas website (Texasbar.com) in the "Grievance and Ethics" section under the "For Lawyers" tab. These rules are amended frequently, most recently on June 15, 2021 and July 1, 2021. This paper incorporates the most recent amendments to the rules. Committee on Professional Ethics Opinions: When there is a question regarding the application of a rule, the Committee on Professional Ethics can issue an opinion on the matter. The committee consists of nine members that are appointed by the justices of the Texas Supreme Court. Tex. Gov’t. Code §81.091- 81.095. §81.091(a) authorizes the committee to write ethics opinions: “[t]he committee shall, either on its own initiative or when requested to do so by a member of the state bar, express its opinion on the propriety of professional conduct other than on a question pending before a court of this state.” Id. Before opinions are formally issued, they are posted on the State Bar of Texas website and open for State Bar member comments.

Other Valuable Ethics Resources: Another important resource I recommend book-marking, is the UT Tarlton Law Library's online ethics portal: https://tarlton.law.utexas.edu/texas-web-resources/texas-legal-ethics. This resource contains links to many other Texas legal ethics resources, including a search engine to look up ethics opinions by either opinion number, or subject matter. The Rules were recently amended to allow lawyers to disclose client confidential information, as needed, for the specific purpose of requesting ethics guidance. In the event an attorney cannot find the answer to an ethical dilemma by using the printed resources available to them, the State Bar of Texas has an Ethics Helpline for this purpose, which can be reached at (800) 532-3947. Also, when faced with an ethical dilemma, as members of TCDLA, we are fortunate to have a designated ethics hotline, manned by the TCDLA Ethics Committee, just for criminal defense attorneys. This number is (512) 646-2734 and messages are checked and returned regularly. BEGINNING THE ATTORNEY-CLIENT RELATIONSHIP: CONTRACTS AND OTHER ISSUES Contracts: The most important aspect of beginning the attorney-client relationship is to fully address, in writing, the objectives of the representation, the scope of the representation (i.e, what is included), the limits of the representation (specifically what is not included), who the parties are (the client, and non-client payers), information that the lawyer’s responsibilities, 2

and the attorney-client privilege belong to the client only, who makes what decisions in the representation, how the client and attorney will communicate, the fee agreement (how much Money for what services, and when the money is owed), how additional expenses will be handled, a statement that no guarantees or promises are being made, explanation regarding e-discovery and inability to give documents to the client, a statement regarding the file retention policy, and language from the State Bar regarding how the client can file a grievance. The Contract Introduction: Include the style of the case, cause number, the court and county in which the matter is docketed, and the offense for which they were arrested, or if already charged, the offense for which they were charged. The parties should be identified, in particular the client should be named and identified as the client. If any third party is paying the fee, you should note that your professional and ethical duties attach to the client, and not them. The attorney-client privilege and lawyer’s duty with regard to the client’s confidential information should be specifically addressed. The Scope and Limits of the Representation: The scope of the representation is the legal work included in the agreement. For example if it is a DWI Class B, the scope may be to disposition of the case, by plea bargain, or trial. If you charge additional fees for a trial, that would be stated in the fee agreement section of your contract. If you include the ALR hearing in your fee, you should expressly

state this. However, if you do not intend to challenge or appeal the ALR decision, that limitation should be expressly stated. You would also want to expressly state other limitations, such as the fee not including a motion for new trial or appeal following conviction. Disclaimers: The contract should explain you are unable to guarantee or promise any particular outcome, as too many variables come to play in case dispositions. Consents: Recognizing that electronic communications (email, cloud services, cellular devices, etc...) are subject to security risks, it is advisable to obtain the client’s consent to use various modes of electronic communication, prior to using it. This can be done by having the client elect on the engagement contract to provide whatever contact information they authorize you to use. The fee agreement: This is a crucial part of the contract, and must be laid out in clear and precise language. The amount of the fee and whether the fee is flat or hourly should be expressly laid out. The details by which the attorney earns the fee should be clear. There should be explanation of how an accounting is made in the event an unearned portion of the fee needs to be returned to the client, should the attorney withdraw or be terminated prior to the conclusion of the representation. Non-refundable retainers are not permitted. See THE PROF'L

ETHICS COMM. FOR THE STATE BAR OF TEXAS, Ethics Opinion 611 (2011) (Holding “it is not permissible under the Texas Disciplinary Rules of Professional Conduct for a lawyer to include in an employment contract an agreement that the amount paid by a client with respect to a matter is a “non-refundable retainer” if that amount includes payment for the lawyer’s services on the matter up to the time of trial.”). Id. The Trial Fee: Statistically, most criminal cases are resolved by plea agreement. The purpose of the trial fee clause of your engagement contract is to explain that if the client does not accept a plea offer, and the case is set for trial, the Client will be required to pay an additional trial fee for trial preparation and the trial. It should be clear when this fee must be paid. Additional Expenses: If additional expenses, such as investigation, experts witnesses, travel, lodging, copies, postage, etc..., are not covered in your fee, your contract must clearly state this. This portion of the contract should also explain to the client how and when these expenses must be paid for. CAVEAT: Be careful when including an arbitration clause in your contract. The Ethics Committee has grappled with the issue of forced arbitration clauses in lawyers’ contracts, and have come up with guidelines, that if adhered to, make them viable. THE PROF’L ETHICS COMM. FOR THE STATE BAR OF TEXAS, Ethics Opinion 586 (2008). The two primary guidelines are as follows: “(1) the client is aware of the significant advantages

and disadvantages of arbitration and has sufficient information to permit the client to make an informed decision about whether to agree to the arbitration provision, and (2) the arbitration provision does not limit the lawyer’s liability for malpractice.” Id. Discuss communications: The most often grieved issue between attorneys and clients, involves an allegation that the attorney failed to communicate, return calls, answer questions and keep the client otherwise informed. The best way to avoid this, is to communicate. Time is valuable, so establish workable boundaries upfront. If you return calls at a certain time of the day, let the client know. If you have client hours, where you make yourself available to take calls, let the client know. Under all circumstances, if the client reaches out for information, return the communication promptly. CLIENT CONFIDENTIALITY: A.

The Pertinent Rules: TDRPC Rule 1.05 and Tex R. Evid. 503

By far the most inviolable of rules of attorney ethics pertain to client confidentiality, and the attorney-client privilege. Both Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct, and Texas Rule of Evidence 503 pertains to the Confidentiality of Information. Rule 1.05 defines confidential information to include both "privileged information" and "unprivileged information." And Tex. R. Evid. 503(b)(2) creates a “special” rule in criminal cases whereby anything learned in the course of representation is privileged. The implications of the latter rule places great restriction on what the criminal

defense attorney can disclose without breaching client confidential information. Importantly, the privilege attaches to clients who employ an attorney, as well as those who merely seek to employ an attorney. Rule 1.05 provides: (a) Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client. (b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client to: (i) a person that the client has instructed is not to receive the information; or (ii) anyone else, other than the client, the clients representatives, or the members, associates, or employees of the lawyers law firm. (2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultations. (3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known. (4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation. (c) A lawyer may reveal confidential information: (1) When the lawyer has been expressly authorized to do so in order to carry out the representation. (2) When the client consents after consultation. (3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise 7

instructed by the client. (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law. (5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client. (7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. (8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used. (9) To secure legal advice about the lawyer's compliance with these Rules. (10) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from dying by suicide. (d) A lawyer also may reveal unprivileged client information. (1) When impliedly authorized to do so in order to carry out the representation. (2) When the lawyer has reason to believe it is necessary to do so in order to: (i) carry out the representation effectively; (ii) defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct; (iii) respond to allegations in any proceeding concerning the lawyer's representation of the client; or (iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client. (e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act.

(f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b). TDRPC 1.05. Tex. R. Evid. 503: As stated above, Texas Rule of Evidence also addresses the attorney-client privilege, and in Tex. R. Evid. 503(b)(2) establishes a "Special Rule in a Criminal Case," which extends the scope of criminal client's privilege to "any other fact which came to the knowledge of the lawyer or the lawyer's representatives by reason of the attorney-client relationship." The latter essentially incorporates anything the attorney learns or obtains in the course of the representation. In complete form, Tex. R. Evid. 503 provides: (a) Definitions. In this rule: (1) A "client" is a person, public officer, or corporation, association, or other organization or entity--whether public or private--that: (A) is rendered professional legal services by a lawyer; or (B) consults a lawyer with a view to obtaining professional legal services from the lawyer. (2) A "client's representative" is: (A) a person who has authority to obtain professional legal services for the client or to act for the client on the legal advice rendered; or (B) any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client. (3) A "lawyer" is a person authorized, or who the client reasonably believes is authorized, to practice law in any state or nation. (4) A "lawyer's representative" is: (A) one employed by the lawyer to assist in the rendition of professional legal services; or (B) an accountant who is reasonably necessary for the lawyer's rendition of professional legal services. (5) A communication is "confidential" if not intended to be disclosed to third persons other than those: 9

(A) to whom disclosure is made to further the rendition of professional legal services to the client; or (B) reasonably necessary to transmit the communication. (b) Rules of Privilege. (1) General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client: (A) between the client or the client's representative and the client's lawyer or the lawyer's representative; (B) between the client's lawyer and the lawyer's representative; (C) by the client, the client's representative, the client's lawyer, or the lawyer's representative to a lawyer representing another party in a pending action or that lawyer's representative, if the communications concern a matter of common interest in the pending action; (D) between the client's representatives or between the client and the client's representative; or (E) among lawyers and their representatives representing the same client. (2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer's representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship. (c) Who May Claim. The privilege may be claimed by: (1) the client; (2) the client's guardian or conservator; (3) a deceased client's personal representative; or (4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity--whether or not in existence. The person who was the client's lawyer or the lawyer's representative when the communication was made may claim the privilege on the client's behalf--and is presumed to have authority to do so. (d) Exceptions. This privilege does not apply: (1) Furtherance of Crime or Fraud. If the lawyer's services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud. (2) Claimants Through Same Deceased Client. If the communication is relevant to an issue between parties claiming through the same deceased client. (3) Breach of Duty By a Lawyer or Client. If the communication is relevant to an issue of breach of duty by a lawyer to the client or by a client to the lawyer. (4) Document Attested By a Lawyer. If the communication is relevant to an 10

issue concerning an attested document to which the lawyer is an attesting witness. (5) Joint Clients. If the communication: (A) is offered in an action between clients who retained or consulted a lawyer in common; (B) was made by any of the clients to the lawyer; and (C) is relevant to a matter of common interest between the clients. TEX. R. EVID. Rule 503. Some of the more common ethical dilemmas relate to the rules of client confidentiality: The Family Dilemma: Does a client’s family have a right to know information related to your representation of their loved one? To answer this, we need look no further than Rule 1.05: with limited exceptions, a lawyer shall not knowingly reveal confidential information of a client or a former client. TDRPC 1.05 (e) and (f). As such, you must explain to even the well-meaning family member that because of ethical rules pertaining to the attorney-client privilege, you are unable to communicate with them about the case. It is best to explain that the rule is in place to protect their loved one. I also explain that it protects them as well. The last thing a wellmeaning family member wants is to end up as a witness against their loved one. You cannot stop the client from communicating with their family about the case, but you should adamantly advise against it. The Non-Client Payor Dilemma: Does a non-client designated payor of the attorney’s fees retain a right to client confidences? Similar to the family dilemma, the non-client payor of the client’s attorneys fees, has not entitlement to client confidences. The lawyer is precluded from disclosing client 11

confidences to the non-client payor, unless the client consents. Any arrangement to disclose such confidences to the non-client payor as part of that person’s agreement to pay client’s fees, constitutes a conflict of interest for the lawyer. Rule 1.08: Conflict of Interest: Prohibited Transactions. (e) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.05.

Confidentiality Dilemma: When can or must you reveal confidential client information? Lawyers have been required to reveal information pursuant to Rule 1.05 (d)(1), to prevent a crime or fraud, if the lawyer’s services were obtained or sought to enable or aid anyone to commit what the client knew or should have known was a crime or fraud. Many scenarios involving the crime fraud exception are intuitive, but Ethics Opinion 473 hits close to home in that it requires the court-appointed attorney of an indigent client to disclose to the court: 1) if “the defendant is not in fact indigent and could pay for retained counsel,” and/or 2) if the defendant is unemployed at the time counsel is appointed and subsequently during 12

the time of the criminal case obtains employment that would enable him to pay for retained counsel. In both scenarios, the committee opined both Rule 3.03 and 1.05 requires these disclosures so “to avoid assisting a criminal or fraudulent act.” THE PROF’L ETHICS COMM. FOR THE STATE BAR OF TEXAS, Ethics Opinion 473 (1991). Recently, three significant amendments to the Rules of Professional Responsibility added to disclosure requirements. The first, 1.05(c)(10) (10) requires disclosure “[w]hen the lawyer has reason to believe it is necessary to do so in order to prevent the client from dying by suicide.”

Sadly, many of us have had clients whose circumstances, during our

representation, have led them dark places where this concern has been very real. In those instances, the duty to preserve life outweighs the client’s assertion of the privilege. The second and third amendments work together to allow counsel to seek advice on ethics and how the Rules of Professional Responsibility apply to their cases: The addition of 105(c)(9) requires disclosure “[t]o secure legal advice about the lawyer's compliance with these Rules;” and the newly added 105(c)(23) states “[a] lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's responsibility to comply with these Rules. In most situations, disclosing or using confidential information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure or use is not impliedly authorized, subparagraph (c)(9) allows such disclosure or use because of the importance of a lawyer's compliance with these Rules.” Thus, now counsel is authorized to make necessary

disclosures to ethics hotlines, and when seeking ethical opinions. Dilemma: How do we maintain client confidences in the era of the internet and cloud based technology? Comment No. 8 to Rule 1.01 was amended in 2019 to include a statement that a lawyer’s competence in the practice of law “includes[] the benefits and risks associated with relevant technology.” TX ST RPC RULE 1.01, cmt. 8. Many lawyers protest this rule, because they not technologists. Yet, today there are many CLEs regarding technology know-how specifically for lawyers. There is an abundance of tech-help available if the attorney has resources to hire out. The State Bar website provides some short videos, called “Tech Bytes” designed to assist attorneys in understanding issues related to technology. An important way in which counsel can protect client confidences is to make sure it is adequately encrypted. The Tech Byte “Encryption Made Easy” explains encryption of client data is the proverbial attorney “get out of jail free card” for loss of client data, because if data is encrypted, it is considered destroyed. Thus, destroyed data cannot be lost. What about use of email for client confidential information? Lawyers use email all the time, and during the pandemic it took on new importance as it was often a primary communication mode. The Ethics Committee has generally approved email as a mode of communication for confidential information. However, the best practice is to encrypt email. What about the use of cloud-based services? Lawyers routinely rely on such services in all facets of their work. Common cloud based services include video transcription services, that help transcribe police body-worn camera footage, grammar check software, 14

WestCheck/BriefCheck, etc... The Ethics Committee has stated a lawyer may store or transmit client confidential information to a cloud based system, provided the attorney: carefully examines the software’s security vulnerability and if it has an known security shortcomings; investigates what protections exist within the technology for data security; investigates whether additional steps such as encryption are needed to make the cloud-based system secure; reviews the terms of service carefully for any concerns and is careful not to transfer ownership of the information to the cloud-based system; and the attorney and their staff have training and knowledge how to use the cloud based service properly to protect client confidences. See THE PROF’L ETHICS COMM. FOR THE STATE BAR OF TEXAS, Ethics Opinion 680 (2019). The Client File Dilemma: Who does it belong to? In pertinent part, Rule 1.15 provides that upon termination of the attorney-client relationship an attorney must “...surrender[] papers and property to which the client is entitled...” The file belongs to the client, not the attorney. Therefore, you may not charge the client for his file. The attorney is merely a fiduciary of the client’s file. If the client wants the file, it must be released to them upon request. However, the lawyer may keep a copy of the file for their records, but must do so at their own expense. Some lawyers, when asked for the client file, provide only portions of it, claiming a “work product” privilege of other portions. There is no work product privilege that entitles a lawyer to remove portions of the client file prior to giving it to the client. This matter was addressed by the Ethics Committee

in Opinion 570, wherein they held: As in all other circumstances, the lawyer is an agent of and in a fiduciary relationship with the client. The Committee recognizes that a lawyer's motivation for withholding his notes from a client may be the result of a temptation to put the lawyer's own interests ahead of those of the client. The Committee believes that allowing a lawyer to unilaterally make a decision to withhold from a client notes relating to the client and created in the course of the representation of the client because the notes may reflect the firm's interests vis-a`-vis the client undermines the duties owed by the lawyer to the client. In addition, withholding such notes from a client denies the client the full benefit of the services the lawyer agreed to provide to the client. THE PROF'L ETHICS COMM. FOR THE STATE BAR OF TEXAS, Ethics Opinion 570 (2006). Client File Dilemma: Is there any material in the client file that you cannot turn over to the Client? Yes. The Michael Morton Act, Tex. Code Crim. Proc. Art. 39.14(f) prohibits a lawyer from providing copies of discovery obtained from the State. The lawyer may show the discovery to the client, but cannot give them copies. It is advisable to keep all discovery separate from the other information in the client file, so that it can be efficiently removed should the client request their file.

Client File Dilemma: The client’s new lawyer wants your client file. Must you give it to him? Yes, but there are some caveats. First, the privilege belongs to the client. Therefore, regardless of the new lawyer's good intentions, you should not release the client file to them

without a signed release, or other form of express consent, from the client. If the other lawyer insists, you are protected for refusing to return it absent the client’s consent. See In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013) (attorney can only release the client file with the client’s consent). Client Confidentiality Dilemmas and Conflicts of Interest: Several ethical dilemmas regarding client confidentiality come up with regard to conflicts of interest. Dilemma: Can you ethically represent a co-defendant of someone who previously consulted with you, but did not ultimately hire you? Comment 1 to Rule 1.05 explains "[b]oth the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidential information of one who has employed or sought to employ the lawyer." (Emphasis added). The State Bar Ethics Opinion No. 494 dealt with an attorney who signed the wife as a client in a divorce. However, the wife's husband had previously consulted six years earlier with the attorney toward the possibility of retaining him for a divorce from the same wife. The committee found it was a conflict for the attorney to sign the wife as a client because the attorney-client relationship was already established with the husband when the husband sought to employ the attorney for a divorce from the wife years prior. TEX. COMM. ON PROFESSIONAL ETHICS, Opinion 494 (1994). It was of no consequence that the husband's consultation had been six years earlier, or that the attorney could not recall the husband or any communications with him. The most significant factor considered by the 17

committee was that the consultation with the husband, and later with the wife involved the same facts and controversy. This opinion has implications as to whether a conflict of interest exists as to one defendant when one of their co-defendant has been previously represented by defense counsel or previously consulted with defense counsel. See Id. HONESTY AND INTEGRITY: The duty to Report Your Colleagues’ Professional Misconduct Dilemma: As officers of the court, we have a duty to report unethical conduct of fellow lawyers, and of the judiciary. Rule 8.03 pertains to the lawyers duties with regard to honesty and integrity. Lawyers must report fellow lawyers to the State Bar for a known violation of the rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer. Lawyers must report judges for a known violation of the rules of judicial conduct that raise a substantial question as to the judge’s fitness for office. There are exceptions to the duty to report: First, there is an exception for reporting a lawyer with substance abuse or mental health issues; these must be reported to Texas Lawyers Assistance Program, and not the disciplinary authority. Additionally, if a lawyer’s knowledge of their peer’s unethical conduct is privileged, it should not be disclosed. ISSUES RELATED TO LAWYER COMPETENCE Competence: Rules 1.01; 1.02 Rule 1.01. Competent and Diligent Representation

(a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence, unless: (1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or (2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances. `(b) In representing a client, a lawyer shall not: (1) neglect a legal matter entrusted to the lawyer; or (2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients. (c) As used in this Rule, “neglect” signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients. ___________________________ Rule 1.02. Scope and Objectives of Representation (a) Subject to paragraphs (b), (c), (d), (e), and (f), a lawyer shall abide by a client's decisions: (1) concerning the objectives and general methods of representation; (2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law; (3) In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.

One Way to Assess Competence: Effective Assistance of Counsel: The Sixth and Fourteenth Amendments to the United States Constitution and Article

I, § 10 of the Texas Constitution have been interpreted to require the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The Court of Criminal Appeals has held an attorney must acquaint himself with both the law and the facts of a case before he can render effective assistance of counsel. See Flores v. State, 576 S.W.2d 632, 634 (Tex.Crim.App.1978). The Facts: Duty to Investigate In Stearns v. Clinton, 780 S.W.2d 216 (Tex. Crim. App. 1989), the Court of Criminal Appeals recognized that defense counsel has a duty to make an independent investigation of the facts, which includes the duty to "seek out and interview potential witnesses." Id. at 224. In McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App. 1996, overruled on other grounds), the Court of Criminal Appeals considered the necessity of trial preparation investigation by defense counsel. The Court concluded: “[s]uch a decision not to investigate ‘must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.’” Id. at 501, citing Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. It is the role of trial counsel to determine whether or not his client has any viable defenses. In so determining, it is wholly insufficient that counsel for the accused merely study discovery provided by the prosecution. Rather, “[c]ounsel is charged with making an independent investigation of the facts of the case[.]” Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Crim.App.1980) (overruled on other grounds). In United States v. Cronic, 466 U.S. 648, 656 (1984), the Court stated:

“The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.” Id. This is why the right to counsel attaches at all critical stages of a criminal prosecution. See United States v. Wade, 388 U.S. 218, 221 (1967). In fact, when first recognizing the constitutional implications of a defendant’s right to counsel, the United States Supreme Court focused on the period of pre-trial investigation, stating that “investigation and preparation were vitally important.” Powell v. Alabama, 287 U.S. 45, 57 (1932). See also, Wiggins, 539 U.S. 510, 522 – 23 (2003)(“counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”). When assessing the reasonableness of an attorney’s investigation, a reviewing court must consider the quantum of evidence already known to counsel and whether the known evidence would lead a reasonable attorney to investigate further. Wiggins, 539 U.S. at 527; Ex parte Martinez, 195 S.W.3d at 721. The Law: Duty to Know To be competent, and attorney must have knowledge of the applicable law and keep current with the law. The latter can be accomplished by reading all the opinions released each week from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Court of Criminal Appeals, and their jurisdiction’s intermediate court of appeals, and where applicable, issues the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Court of Criminal Appeals, 21

and their jurisdiction’s intermediate court of appeals Plea Bargaining Dilemma: The State makes an unreasonable plea offer. Must the attorney convey it to the client? When a plea offer is made, defense counsel must convey it to the client, regardless of whether the lawyer thinks it is a good offer, or not. Rule 1.03, governing communications provides: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comment 1 to Rule 1.03, is particularly instructive in this dilemma. It provides: “a lawyer who receives from opposing counsel either an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable. See Comment 2 to Rule 1.02.” In Ex parte Wilson, 724 S.W. 2d 72, 74 (Tex. Crim. App. 1987), the Court of Criminal Appeals held counsel was ineffective for not conveying 13-year offer where client went to trial and got life, and later testified he would have take the 13 if he had known about it. In the last ten years, the United States Supreme Court has addressed a number of plea bargaining cases. In the same session, the United States Supreme Court issued two opinions related to attorney communications about plea bargain offers. The first, Missouri v. Frye, 132 S.Ct. 1399 (2012), involved a charge of was a driving with a revoked license. There were 22

two plea offers made to the defense, both would result in a 90 day jail sentence. Counsel failed to communicate either plea offer to the defendant Frye, within the deadline to accept the plea bargain. Frye took his case to trial, was convicted and sentenced to three years in prison. The Court held counsel provided ineffective assistance of counsel for failing to communicate the plea bargains in a timely manner to Frye. The other case involving plea bargaining was Lafler v. Cooper, 132 S.Ct. 1376 (2012). The defendant there was charged with several offenses including assault with intent to commit murder. The Government offered a recommended punishment range of 51-85 months. Initially, facing a much higher range of punishment under the guidelines, the defendant wanted to accept the offer. However, his lawyer convinced him not to accept the plea offer, by telling him the Government could not prove intent to murder. The basis for his advice was the fact the victim was shot below the waist and did not have life-threatening injuries. The defendant was convicted and sentenced to 185-360 months. Counsel was held to be ineffective, for his advice connecting intent to the location of the victim's injuries. Evidence of intent was not related to whether the defendant was good marksman. Competence and Technology: A New Dilemma for the Texas Lawyer Rule 1.01 requiring lawyer competence, now includes competence in technology. The Supreme Court of Texas specifically amended Comment 8 to Rule 1.01 regarding “Competent and Diligent Representation”). The amendment’s language is in bold: “...each lawyer should strive to become and remain proficient and competent in the practice of law,

including the benefits and risks associated with relevant technology.” Now, Texas attorneys are subject to disciplinary action for failing to keep up with technology. Fortunately, there are many resources available for counsel to learn relevant technology, even on a budget. This comes in the form of “how-to” videos on the State Bar website, and lists of technology vendors, many with discounted pricing for State Bar members, that help with building online client databases and assisting with cyber-security matters. Technology Dilemma: Can I use a cloud-based system to store client data? Yes, but be careful. The Professional Ethics Committee for the State Bar addressed this question. A lawyer may store client information on a cloud-based system, provided the lawyer takes the following reasonable precautions: “(1) acquiring a general understanding of how the cloud technology works; (2) reviewing the “terms of service” to which the lawyer submits when using a specific cloud based provider just as the lawyer should do when choosing and supervising other types of service providers; (3) learning what protections already exist within the technology for data security; (4) determining whether additional steps, including but not limited to the encryption of client confidential information, should be taken before submitting that client information to a cloud-based system; (5) remaining alert as to whether a particular cloud based provider is known to be deficient in its data security measures or is or has been unusually vulnerable to “hacking” of stored information; and (6) training for lawyers and staff regarding appropriate protections and considerations. THE PROF’L ETHICS COMM. FOR THE STATE BAR OF TEXAS,

Ethics Opinion 680 (2018). Similarly, the State Bar has authorized lawyers to send confidential information via email. However, counsel must remain alert to the hazards of interception and hacking, and take necessary measures to prevent them, such as using encryption. THE PROF'L ETHICS COMM. FOR THE STATE BAR OF TEXAS, Ethics Opinion 648 (2015). It is good practice to include a Consent to Digital Communications clause in your retainer agreement letters.

These clauses should clearly state the reality that such

communications are not as secure as others, and allow the client the option of providing email, cell phone, or fax numbers. The clause should state if the client provides those communication options, they are authorizing you to communicate via that mode of communication regardless of the risks associated with it. SOCIAL MEDIA: Remember Rule 1.05, governing confidentiality, includes both privileged information and “unprivileged.” But Tex. R. Evid. 503(b)(2) creates a special rule of privilege in criminal cases whereby “any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship” is confidential and should be disclosed. Social Media Dilemma: Can you seek advice from other lawyers in a listserve? Yes, but exclude any identifying information that could link the question to a particular client and only reveal the information necessary to obtain an answer. Frame the

question in a hypothetical format. Also, be careful how you respond on the listserve. Your answers should be careful not to contain any information that would identify your clients. If your colleagues are asking for an example of a motion, do not share a copy of the motion with your client’s name on it. Redact all identifying information, including name and cause number. Social Media Dilemma: Can you post about your cases on Facebook or another social media platform? Information posted on the internet is permanent in that it can never be completely removed from the internet; the information could have been reposted and shared beyond the poster’s knowledge, and many social media applications have the policy of collecting and storing communications as data. Therefore, it is essential to think carefully before posting anything. Remember client confidentiality, and refrain from any posting anything that would disclose client confidential information. ADVERTISING DILEMMAS: Dilemma: Can a lawyer request a client post a postive review? It depends. Ethics Opinion No. 685 (2020) explains lawyers, their websites, and their social media sites are subject to lawyer advertising and solicitation rules. Lawyers are not prohibited from seeking positive reviews from former clients. But Ethics Opinion No. 685 is clear a lawyer cannot encourage false or misleading statements. A lawyer must correct or remove any statement in a review that is false or misleading.

Social Media/Advertising Dilemma: Does a lawyer have an affirmative duty to monitor websites for false, misleading or unfounded statements about them? Ethics Opinion 685 did not address this issue head-on. But, it is clear a lawyer might have this affirmative duty, if the lawyer controls the media platform. Social Media/Advertising Dilemma: What if a former client publishes negative, false comments online? The lawyer may post a proportional and restrained response that does not reveal any confidential information or otherwise violate the TDRPC.

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OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases. From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education. TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas. TCDLA continues to foster these relationships and develop additional affiliations. As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

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TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers. New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code. Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments. With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form). Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported. The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission. Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements. Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure. In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county. As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process. Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate. The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study. Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases. While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases. The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions. To learn more about this research please visit the study website at http://texaswcl.tamu.edu. WWW.TIDC.TEXAS.GOV

MARCH 2014

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Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership. Deserving members without the wherewithal to attend our seminars can get financial aid to help in their continuing legal education.

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