Speak Up or Shut Up?

"No person...shall be compelled in any criminal case to be a witness against himself."  Sound familiar?  It's the Fifth Amendment guarantee against self-incrimination - the right to remain silent.

The question is how do you invoke your constitutional right to silence.  How do you talk without speaking? [see lyrics from "Sounds of Silence" by Simon and Garfunkel]  As of Monday, June 17, 2013, the US Supreme Court has made clear that you cannot simply assert your constitutional right to remain silent by, well, remaining silent.  No, you must expressly invoke the right.  See Salinas v. State, No. 12-246, 570 U.S. __ (2013).

Salinas originated in Texas - Harris County to be precise.  Mr. Salinas was interviewed by the police after a double murder.  By all accounts he was at the police station voluntarily and was not in custody.  Because he was not in custody the police did not provide Mr. Salinas with his Miranda warnings, one of which is the right to remain silent.  Mr. Salinas answered some questions but fell silent when police asked questions about bullet casings.  At trial the government argued that Mr. Salinas' silence was evidence of his guilt.  He was convicted and sentenced to 20 years in prison.  He appealed arguing that his silence in the face of police questioning invoked his constitutional right to remain silent.

Seems logical, right?  However, a plurality of the US Supreme Court held that Mr. Salinas' Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question.  Mr. Salinas did remain silent but that wasn't enough here.  According to the US Supreme Court he should have expressly claimed his privilege; he could not simply remain mute.  The plurality held that "the Fifth Amendment guarantees that no one may be 'compelled in any criminal case to be a witness against himself;' it does not establish an unqualified 'right to remain silent'".

So, at the very outset, if you find yourself in the unfortunate position of being questioned by the police - be it in a police station or on the side of the road or wherever - the first question to politely ask is "am I free to leave".  [Also, it is important to remember that if you are speaking with a police officer, the conversation is being recorded]  If the answer to that question is "yes" then it is a very good idea to leave.  If the answer to that question is "no" then the response to any question, in light of Salinas, should be "I am invoking my constitutional right to remain silent and I want a lawyer."  Then politely remain silent. 

What Salinas leaves unanswered, however, is whether the government can use an accused's assertion of the Fifth Amendment during a non-custodial police interview as part of its case in chief.  Courts are split on that very issue.  I suspect the answer to that question may be yes.  We will see...

No Blanket DWI Exception to the Fourth Amendment

The US Supreme Court is making clear - again - its preference for warrants.  On April 17, 2013, the USSC handed down its decision in Missouri v. McNeely.  This really isn't anything new, but it's a great opinion to show that there is no blanket "DWI exception" to the Fourth Amendment.  There is no bright line rule.  Each case must evaluated individually.

McNeely was stopped for DWI - a garden variety DWI by all accounts - no accident and not a felony.  He performed less than perfect on the field sobriety tests and was arrested for DWI.  He declined the officer's invitation to provide a specimen of his breath.  The office took him to the hospital where his blood was drawn.  

Justice Sotomayor authored the opinion of the court.  Sotomayor recognized again that "any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests."  Ultimately, the USSC held that in DWI investigations "the nature dispensation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant." 

Now, it will have to be seen how mandatory blood draw statutes - like the one in Texas - are reconciled with this opinion by the courts.

"When it Comes to the 4th Amendment, the Home is [Still] First Among Equals"

On March 26, 2013, in a short 10 page majority opinion, authored by Justice Scalia, the United State's Supreme Court again recognized the sanctity of our homes.  In Florida v. Jardines the government - based on an "unverified tip" - suspected the residence of Joelis Jardines was being used to grow marijuana.  The government followed up that "unverified tip" with surveillance which produced no unusual activity.  The detectives on the case then went up to Jardines' home with Franky, a drug dog.  Franky hit on Jardines' home - the front door to be precise.  On the basis of that information the government applied for, and obtained, a warrant.  Execution of the warrant revealed a grow operation, and Jardines was subsequently charged with trafficking in cannibis.  

At the trial court level Jardines challenged the search contending it was unreasonable under the Fourth Amendment.  The trial court agreed.  The court of appeals, however, reversed.  The Florida Supreme Court agreed with the trial court.  The case was appealed to the US Supreme Court.  In this opinion, the USSC answers the question of "whether the officers' behavior was a search within the meaning of the Fourth Amendment." Justice Scalia - for the majority - answers that question yes based on property grounds.   (Justice Kagan concurred to state that she believes the answer is yes based on privacy as well as property grounds.)

Some of the reasoning:

The Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated."  As the USSC noted yet again, the 4th Amendment establishes a simple baseline - when the government obtains information by physically intruding on persons, houses, papers, or effects a search within the original meaning of the 4th Amendment has undoubtedly occurred.  The curtilage of the home enjoys protection as part of the home itself.  Therefore, it follows that "the front porch is the classic exemplar of an area adjacent to the home and to which the activity of the home life extends." It is undisputed that the government was on the constitutionally protected extension of Jardines' home and that he had not - even implicitly - given them permission to be there.  Detectives and drug dogs are unlike "ordinary visitors."  They are not like "the Nation's Girl Scouts or trick-or-treaters."  There is no customary invitation to bring a trained police drug detection dog to explore the area around the home in hopes of finding incriminating evidence.  

"When it comes to the Fourth Amendment, the home is [still] first among equals."   

On a Roll

I finished a DWI breath test jury trial last week.  "Not Guilty" is one of the greatest phrases ever spoken.  This is how it all went down:

On Monday, a panel of 18 potential jurors were called in.  6 jurors are needed for a misdemeanor case.  After I finished speaking with them, only four jurors were left who were qualified to serve.  The judge declared a mistrial and ordered us all back at 8:00 a.m. on Tuesday.  He said he would be calling in 24 potential jurors.  I asked the prosecutor if we could plead to obstruction of a highway.  She said no way.

The next day we got a jury.  The state's first witness was the fast food employee, a former army medic, who called the cops because my lady was throwing up drunk and shouldn't be driving.  She said my lady had driven on the curbs and parked across 3 parking spaces.  They played the 911 call.  Then 2 police officers testified that my lady was drunk.  Then the breath test operator testified that she was drunk.  Then the breath test technical supervisor testified that she would have had 3-4 drinks in her system at the time of the test and that the test was a .115.  On cross examination, however, he admitted that absorption is a process and that she definitely could have been under .08 at the time of driving.

We made closing arguments.  After an hour the jury came back with a not guilty.  I am so proud of my lady for having the courage to try the case.  I am getting her record expunged now.

As my dad would say, "Keep on keepin' on and mess with Texas..."

County Time

I just finished a burglary of a building trial yesterday.  Ordinarily, burglary of a building is s state jail felony which carries a punishment of 180 days - 2 years in a state jail prison facility and up to a $10,000 fine.  However, my client has a substantial criminal history.  Therefore, what would normally be a state jail felony was enhanced to a third degree felony which carries a punishment of 2 years - 10 years in prison and up to a $10,000 fine.

From the beginning, he just wanted "county time" on a criminal trespass.  He said he would take 6 months county time.  The offer was never "county time." 

So right before jury selection, he got nervous.  He'd never had a trial before.  He had always just taken a plea deal.  He offered to take 9 months state jail time.  The prosecutors didn't go for that.  So we had a trial.  

We talked about the constitution.  We talked about the presumption of innocence and what that means.  We talked about the 5th Amendment and how it's a bit of a paradox - if you testify, you'd say anything to save your own skin and if you don't it must be because you're hiding something.  We talked about what proof beyond a reasonable doubt really is.  The jurors followed the law and applied those very constitutional principles.

In the end my guy got "county time."  He was found not guilty of burglary of a habitation and convicted of the lesser included class B misdemeanor offense of criminal trespass.  No fine.  90 days in the county jail; time served.  He's a free man. 

This was a court appointed case.  I tried it no differently or put no less effort in it than I would have had he walked in and hired me.  

Make 'Em Work

I ran into a couple of situations last week that wouldn't have been interesting at all but for the reactions of the prosecutors I was dealing with.  As I always do, I filed several motions in two felony cases I currently have pending.  This wasn't necessarily the big hurdle.  The big deal, apparently, was the fact that I had scheduled the motions for pretrial hearings.

In getting a date for the pretrial hearing, I was met with frustration, exasperation and outright rudeness.  I will not apologize or feel bad for doing my job.  I am a criminal defense lawyer.  To do the job properly and effectively requires time, effort, and work.  I work.  I will not be outworked nor out-prepared if at all possible.  

Let Us All Be Dissatisfied like Dr. King

From Martin Luther King, Jr.'s speech, Where Do We go From Here? (delivered in Atlanta, Georgia in 1967)

Let us go out with a "divine dissatisfaction."

Let us be dissatisfied until America will no longer have a high blood pressure of creeds and an anemia of deeds. 

Let us be dissatisfied until the tragic walls that separate the outer city of wealth and comfort and the inner city of poverty and despair shall be crushed by the battering rams of the forces of justice.  

Let us be dissatisfied until those that live on the outskirts of hope are brought into the metropolis of daily security. 

Let us be dissatisfied until slums are cast into the junk heaps of history, and every family is living in a decent sanitary home. 

Let us be dissatisfied until the dark yesterdays of segregated schools will be transformed into bright tomorrows of quality, integrated education. 

Let us be dissatisfied until integration is not seen as a problem but as an opportunity to participate in the beauty of diversity. 

Let us be dissatisfied until men and women, however black they may be, will be judged on the basis of the content of their character and not on the basis of the color of their skin.

Let us be dissatisfied. 

Let us be dissatisfied until every state capitol houses a governor who will do justly, who will love mercy and who will walk humbly with his God. 

Let us be dissatisfied until from every city hall, justice will roll down like waters and righteousness like a mighty stream. 

Let us be dissatisfied until that day when the lion and the lamb shall lie down together. and every man will sit under his own vine and fig tree and none shall be afraid. 

Let us be dissatisfied. 

And men will recognize that out of one blood God made all men to dwell upon the face of the earth. 

Let us be dissatisfied until that day when nobody will shout "White Power!" - when nobody will shout "Black Power!" - but everybody will talk about God's power and human power.

Not a Bad Start

We're off to a good start for 2013!  On January 4, 2013, the Court of Appeals for the Second District of Texas (Fort Worth) issued the opinion in Ross v. The State of Texas, an appeal I spent a large part of 2012 working on.  The Court of Appeals affirmed in part and reversed and remanded the cases back to Denton County for new punishment trials!  It's not total relief because it means a new punishment trial only but anytime you get a case reversed and remanded it's a win.  However, I am looking into the possibility of filing a petition for discretionary review with the Court of Criminal Appeals to try to get total relief.  I will keep everyone posted on that.

Also, so far this year - and it's only January 15th - I've already received dismissals on 2 cases!  One dismissal is for an assault family violence case.  The other is for fictitious inspection sticker.  The assault case was set for trial this week and the inspection sticker ticket was set for trial at the end of the month.  I was supposed to be in trial this week on the assault case and on a DWI case.  On the DWI case the state filed a motion for continuance. 

Last week I was in Lubbock speaking at the Prairie Dog Criminal Law Seminar.  There were about 180 lawyers and judges in attendance.  I talked about effectively and zealously representing court appointed clients.  Afterward, I was invited to give the same talk at another criminal law seminar later this year.

The courthouse doors have only been open for 10 days this year but already things are looking good.  It's going to be a very good year!