Picking a Jury in Harris County on Resisting Arrest Charges as a Second Chair

The adage is that you win trial in jury selection.

I meandering into Harris County Court 14 the other day expecting to pick a jury for my client's case. It was the ninth trial setting, after all.  Instead, the court chose to go with an a resisting arrest case on its first trial setting. 

No Rhyme.  No Reason.

I just so happened to know the lawyer who was defending the young Puerto Rican accused of resisting arrest.  The poor kid was jumped by a cop and sent to the hospital for some stitches and bruised ribs before he was booked in jail.  Of note, the 5'5 cop who was clearly inflicted by Napoleon Syndrome, was working an extra job at twin peaks.  Knowing the lawyer, and having helped him before in a DWI trial, I helped him pick the jury.

I knew nothing about the case until about 15 minutes before jury selection, but what I did know was my obligation as a second chair.  For any new lawyers that may stumble upon my blog, a second chair is a lawyer who assists another lawyer during trial.  Sometime second chairs take the role of observer and whisperer of ideas.  Other times, second chairs may have the opportunity to conduct examinations and arguments.  I have second chaired murders and sexual assaults to DWIs and simple assaults.  

No matter what, when second chairing, you have to be actively participating by seeing what there is to be seen, hearing what there is to be heard, and sharing your observations and ideas with the first chair.

In this particular resisting trial, my job was to determine who in the jury panel was ineligible to serve on the jury due to a bias or prejudice I identified two issues early on.  First, officer credibility. Second, how might an officer act after he worked a long shift on the job for HPD, then immediately worked a second shift as security.  The first chair, Paul Kendall, had the rest set up perfectly.  

I took tabs on who could not serve on the jury, and the judge agreed that I got them all correct.

As Paul was about to finish his voir dire, he asked me if there was anything else he needs to cover. I said, "Yes, ask the jury how an officer might feel after working his main job then going directly to his extra job.  Ask the jury what might effect the cop's judgment."  He asked and the answers followed. In fact, the first juror to speak said the exact word I was looking for, "cranky."  It was all gravy from there.

We got the 6 jurors we wanted on the panel.  Hell, we even got the guy who was previously convicted of resisting arrest on jury!

It certainly helped that Napoleon Dynamite testified it was as if his commands (to leave the parking lot) fell on deaf ears, because, well, the client was partially deaf.

Two Words:  Not Guilty.  

Congrats, Paul.

The Ballad of Marijuana Defendant

The Dope Defense Attorney

This case has become unreal.  Just unreal. My client was charged with possession of marijuana.  I don't want to give away too much here because I know the prosecutor, who I believe to be lovely and reasonable in her soul, has at the very least looked up body cameras in the local news.  In fact, I think she was kind of impressed that I was quoted in the Houston Chronicle about this particular case. 

Note:  The Pic Is Not Me Or My Client

Credit where credit is due.  She researched the matter, and dare I say me (although I doubt it), and then tried to get any reference to the article excluded from trial through a motion in limine.  

So, just why has this case become unreal.  Harris County Court 14 works in a peculiar way.  Clients only have three or four court dates, spread out over about 6-9 months before their first trial setting.   Personally, I like this set up.  Your client doesn't get pointlessly dragged into court, and I don't find going to court every month for the same case a useful exercise for attorneys either.  In theory, there should be more cases being dismissed in Court 14, and also more cases going to trial due to the scheduling.  The problem is that cases are not actually being dismissed at the rate they should be.

Well I can tell you what, a whole ton of cases are set for trial in that Honorable Court everyday. While I'm not important enough for court staff to read my blog, I still take a risk by saying that showing up for trial TEN TIMES is inexcusable. It is a war of attrition to get the defendant to plead guilty by tearing away at their finances, will power, and soul.  

My client is innocent and she will not plead guilty for something she did not do.  Hell, there are defendants who may be guilty that want to go to trial, but feel like the government can't make there case, and that is their constitutional right.

Back to the topic.  At my client's 9th trial setting, yes ninth, my client was told to return the next day (third day in a row), only if the judge called her case to trial.  In other words, she didn't have to be at court like the rest of the defendants.  So, I showed up in her stead. Judge Fields, who is truly a likable and well thought judge, calls my client's case to trial.

Ok, so I don't announce that I am ready.  I don't have witnesses and I don't have my co-counsel with me at that exact moment.  The was kind enough to say,  "Counselor, you are great.  You know what you are doing and know the facts of your case very well.  You don't need co-counsel.  You don't even need to go get your file."  As flattering as his statement may be,  commercial pilots don't fly solo, and neither do I.  He reaffirms that my case is going to trial, so I run outside and call my client.   Like the rest of Houston, she had trouble getting downtown in the tail end of a tropical storm.  Too much trouble.

Meanwhile, we have a GREAT jury panel.  I am talking about young and diverse.  It was a beautiful thing.  Two hours later, the judge tells the jury to go home. Judge Fields even proclaimed he had never seen such a good looking jury for the defense and jokingly said he wanted to take a picture with them. The times, they are a changing.  However, My client finally arrives and Judge Fields graciously and justly did not revoke my client's bond because she had been on time the previous 9 trial settings. 

I was so ready to try this case.  Witnesses would have been great, but I won a good couple of battles during pretrial motions, not least including getting a spoliation instruction granted, should I present evidence warranting the instruction, which was likely to happen.  I saw Mike DeGuerin in the elevator and got some words of advice from that legend, and I had some great attorney''s helping me at trial.  The stars were aligning.  It's a shame my client wasn't on time.  

Lesson learned, don't give your client's the chance to mess things up, because they will, and at the worse of times.

Unlawful Carrying Of A Weapon Motion To Suppress Post-Rodriguez

I was almost there.  I was so close that I could feel it.  I could touch it.  I could see it.  I could see the Montgomery County Judge saying, "Motion To Suppress Granted," and the State of Texas saying "Judge we will file this Motion to Dismiss."  However, it wasn't to be.  It wasn't to be because we worked the case us so good that the Montgomery County prosecutor dismissed both cases in exchange for my client forfeiting his handgun.

For the record, I would not have taken that deal under the circumstances, that's how confident I was in the facts of the case, my legal research, and that I would not let the government steal my gun (if I had one).  However, as a client-centered lawyer, my job, my obligation is to inform my clients about the procedure, the potential courses of action, and the potential consequences of each course of action.  In this case, the dismissals were all he wanted.

So, let's rewind to May of 2014, in a little speed-trap of a town called Patton Village.  My client was driving a car his mother bought him for graduation north on highway 59 to visit his mother in Mississippi.  He was traveling in the left lane, allegedly, without passing other vehicles.  A Patton Village Cop followed him for, according to the cop, three miles.  The cop turns on his dashboard camera as the cars approach the Liberty County Line (where liberty goes to die).  In the video, you can see that my client's car is getting further from the white car in the right hand lane, and closer to the semi in front of him, thus appearing to be passing traffic and nullifying the reason for the stop.

The officer turns on his overhead emergency lights and pulls my client over.  My client turns on his signal and makes safe lane changes until he comes to a safe stop on the shoulder, at which point he turns on his hazard lights.  The Patton Village Cop calls in my client's Mississippi license plate number, exits his vehicle and goes to the driver door.  The cop talks to my African American client for a full minute with his window down.  My client gives the cop his license, insurance and registration, just as he's supposed to, and the cop orders my client out of the car.  The cop waits for a another cop to arrive (not in the offense report as it should be) then returns to the squad car and runs my client's driver license. 

About 15 minutes later, the cop learns that there are no arrest warrants for my client, he has no criminal history, he has only been pulled over once before, and that his car is coming back as stolen.  The cop places my client under arrest and puts him in the back of the squad car.  My client tells the officer that there must be a mistake, I mean, after all, the his registration and insurance are for that car, they have his name on it along with his mother's name, who shares the same last name and is registered to her address in Mississippi which is the address on my client's driver's license.

The officer agrees to call my client's mother.  To be fair, he could have been a real big jerk and not done that, but on the other side of the token, the evidence before him was that the car was not stolen.  His story made sense.  So, the cop calls my client's mother who answers.  The cop says hes in a stolen car.  She asks what he's driving.  She cuts him off,  "is it a black 2006 chevy hhr?"  Indeed it was.  She assures the cop that the car was not stolen.  The cop sayd he would let her son go in a few moments.

The cop then tells my client he is letting him go, but requests consent to search his vehicle.  My client exercises his Fourth Amendment right to deny the officer consent to search.  At this point, under a new Supreme Court Case called Rodriguez v. United States, the cop had a duty to let my client go.  Instead, the cop called a K9 to search the outside of my client's car.  The K9 arrives 15 minutes later (after more than an hour had already passed where the officer could have called the K9, or actually just searched the car since he had probable cause to believe a crime had been committed).  The K9 made two hits, and the cops recovered some weed and pistol.

We argued that the fruit of the search, were fruits of the poisonous tree, and must be suppressed.  In layman's terms, the cops illegally searched my client's car.

So quick rundown on searches and seizures.  A cop can search a person or a place if there is a valid search warrant.  IF there is not a valid search warrant, the search is presumed to be unlawful.  An officer can search for contraband if he has probable cause."  Probable cause is exists where facts and circumstances are sufficiently strong to justify a prudent and cautious person's belief that certain facts (that a person committed a crime) are probably true.  Probable cause to search exists if the cop sees the person commit the crime, the contraband is in plain view, the officer's smells the weed... so on and so forth.

Here, the cop did not see and dope in plain view. The law holds that an officer must diligently pursue all reasonable avenues to confirm or dispel a belief, and that they must execute the ordinary tasks of a traffic stop in a diligent manner.  So, an officer may not prolong a traffic stop to call a dog or conduct a search without probable cause. 

What are the ordinary tasks of a traffic stop, you may ask?  Investigating and issuing a ticket, running a warrant check to see if the driver if the driver is wanted for arrest, and do a license plate check to see if the car is stolen.  In this case, the officer did a reasonable diligent job in doing the above, and he did a pretty great job at investigating once the car was stolen.  However, once he determined the car was stolen, he did not have the right to detain my client any longer, unless he had developed a reasonable suspicion to believe my client was engaged in or was about to be engaged in criminal activity. FYI, all you officers out there, a HUNCH IS NOT ENOUGH TO DETAIN A MOTORIST!!!  

In this case, the officer did not have an articulable  reasonable suspicion to continue detaining my client and it was his right, as it is yours, dear reader, to DENY CONSENT TO SEARCH his vehicle.  My client did not make incriminating statement, there was nothing in plain view, the car was not stolen, he was not a known drug dealer, he did not come from a known drug house, he was not intoxicated, his story made sense, he was calm, cooperative, honest, did not attempt to flee... I could continue, but you get the point.

There are a litany of cases that define what a cop can and cannot do in regard to a traffic stop.  Rodriguez is great because it affirms absent a reasonable suspicion, the extension of a traffic stop a.k.a. prolonged detention is an unreasonable seizure, and that calling a K9 is not an ordinary or traditional aspect of a traffic stop.

If you have been arrested you need to hire a lawyer who loves to investigate unlawful searches and seizures.  You need a lawyer who can read an offense report and smell something fishy.  You need a lawyer who enjoys researching to protect your liberties.  

Appeals Filed and Trials Postponed

What an exhausting week!

First, I was set for a possession of marijuana trial in Harris County on 4/20.  I was so eager to try that case and hopefully get a NOT GUILTY on the marijauna holiday, but it wasn't to be.  For the second time.  The first time the case was set for trial it was reset because the district attorney thought that the day of trial would be a good time to turn over BRADY bodycam video.  I am sure glass I did not push forward without it ;).

This time, the case was reset because the judge wanted to get a two day trial out of the way, whereas mine would only take one day  Although I was disappointed to not try this case, it gave me time to finish up an appeal.  My appeal client was sentenced to life in prison for aggravated sexual assault of a child, which is the legal term for "rape" in Texas.  You'd think that a trial for this type of charge might take quite a while, but this trial only lasted two days and they sent my guy to the slammer for the long haul.

I was not the trial lawyer.  The trial lawyer was a guy who is infamous for being found ineffective multiple times, yet for some reason, the courts keep appointing this guy to cases (in my opinion it is because they way certain defendants locked up for life, and this guy's representation almost guarantees it).  I don't want to get into the details of the case, but I'll tell you what's important.

The complainant (what you might naturally as the victim) claimed my client diddled her.  The complainant also claimed that three boys raped her at a party in another county that were no-billed. Mind you, a prosecutor could indict a ham sandwich.  The prosecutors sent the trial lawyer a motion in limine that indicated the girl made accusations in the other county. (P.S.  This crappy notice is going to be a huge issue and a potential Brady violation if there is a writ filed.)  The trial lawyer didn't read the notice/motion and didn't request a continuance to investigate the allegations to see if they were false, which would be necessary to cross-examine/impeach the complainant at trial.

You might not think her prior false allegations of abuse are all that important, but they are huge, and particularly huge in this case.  Why?  Because the complainant claimed my client penetrated her, and touched her elsewhere.  Well, the nurse recovered my client's DNA everywhere the complainant said my client touched her, except in her vagina, AND the nurse testified that if he really did penetrate her vagina, his DNA should be there under the circumstances.  PHEW!  It's uncomfortable talking about this.  I don't like sex offenders and pedophiles, but if I'm not protecting their rights, your rights wont be protected.

So the point here is that if my client did not penetrate the girl, he is not guilty of aggravated sexual assault, which brings me to my second point, the court committed error by not including a jury charge for the lesser offense of indecency with a child.  

I don't know if my client is guilty, and it wouldn't effect my representation if I did or he was.  I never in a million years thought I would be an appellate lawyer in Texas, but it can be fun at times.  Now it is time to wait and see what happens.

Setting a Case For Trial In Harris County Criminal Courts

They will do just about anything to keep a lawyer from setting his case for trial, and I love it.  I have a brave client.  He was charged with possession of marijauna and the State gave him a nice offer, a.k.a. a conviction, of time served.  That means he would plea and his case would be over with, except for a six month license suspension.  My client was having none of it.  If they want to prove that he is guilty, go ahead and make them prove it, he says.  The ADA, takes the case to her boss makes her enhance the case.  Why was this done?  Most likely to dissuade my client from making the ADA work and try a "stupid marijuana case."  Guess what?  We agree, it is stupid.  So then we have to approach the judge to get a trial setting.  This judge doesn't believe that me, in my youth, has informed my client of the risks of trial.  She expresses concern that I have a trial fee and that my bar card is at risk.  I mean, really, what business does she have being concerned with my financial circumstances and the structure of my contract?  She was very nice, but also "paternalistic."  I suppose part of a judges duty is to encourage compromise; to encourage cases to settle.  However, I feel like that has a place more so in the civil courthouse than the criminal courthouse.  I said at least three times that my client just wants his story heard by six members of the community.  This is the second case I tried to set for trial in two weeks, and each time the judge urges me to urge my client to plea.  I am glad the judge told me she never was a defense lawyer, but that just begs the question: how can any judge be neutral who hasn't worked both sides of the docket?  She didn't seem to grasp that my client made up my mind to exercise his right to trial, and that he does not care that it will take time out of the court's more important time, or as the property folks say, highest and best use.  If a DA wants a convictions, make them work for it.