The Best Defense

Federal Grand Jury: It is famously said that any competent prosecutor can “get a grand jury to indict a ham sandwich.”

2011-09-18T01:46:00.000-07:00

you must be stupid~ and legally trained in how to be stupid Please tell us ....now who are you?

2009-07-11T20:34:00.000-07:00

Send "The Logical Song" Ringtone to Cell Phone Send Ringtone

When I was young, it seemed that life was so wonderful,
A miracle, oh it was beautiful, magical.
And all the birds in the trees, well theyd be singing so happily,
Joyfully, playfully watching me.
But then they send me away to teach me how to be sensible,
Logical, responsible, practical.
And they showed me a world where I could be so dependable,
Clinical, intellectual, cynical.

There are times when all the worlds asleep,
The questions run too deep
For such a simple man.
Wont you please, please tell me what we've learned
I know it sounds absurd
But please tell me who I am.

Now watch what you say or they'll be calling you a radical,
Liberal, fanatical, criminal.
Wont you sign up your name, wed like to feel you're
Acceptable, respectable, presentable, a vegetable!

At night, when all the worlds asleep,
The questions run so deep
For such a simple man.
Wont you please, please tell me what we've learned
I know it sounds absurd
But please tell me who I am.

Republican Gov. Rick Perry could make an appointment to that position in September. Isassi, a Democrat, has sought the intervention of a prominent loc

2009-06-29T04:09:00.000-07:00

Kleberg counsel indicted in abuse-of-power case

By Dan Kelley (Contact)
Friday, July 20, 2007
Isassi's case stems from charges against a relative.
Isassi's case stems from charges against a relative.

Alfred Isassi, who is seeking appointment to a newly created district attorney position, was indicted Thursday on misdemeanor charges accusing him of abuse of his powers as Kleberg County Attorney.

Isassi faces one count of abuse of official capacity and three counts of exercising improper influence.

The indictment stems from the arrest of an aunt, Anna Linda Gonzalez, on a felony count of evading in a vehicle in 2005.

Isassi is alleged to have told Assistant District Attorney Aida Trevino that the charges against his aunt were to be dismissed. The indictment also alleges that he told two employees of the county's probation department that his aunt did not have to report for pre-trial supervision.

Bond was issued at $1,000, according to District Clerk Martha Soliz.

Isassi could not be reached for comment.

Kingsville Mayor Sam R. Fugate, a lawyer who is advising Isassi but has not been retained by Isassi, said, "I'm sure this will come out in his favor."

"I feel bad for him and his family," Fugate said. "He's a good young man and a good lawyer."

Kleberg County Judge Pete De La Garza said Isassi will continue to represent the county.

"You need to understand that an indictment is not a conviction," De La Garza said. "It's an accusation."

De La Garza said he did not know if the county would pay Isassi's legal fees -- in some circumstances the county has a choice in the matter, in some circumstances it does not.

As county attorney, Isassi is responsible for prosecuting misdemeanors. He is also a former assistant district attorney, serving under Carlos Valdez, the district attorney for Kleberg, Kenedy and Nueces counties.

Valdez said in a previous interview that he and two top aides could be called to testify at trial.

The Legislature this year created a district attorney position to cover Kleberg and Kenedy counties. Republican Gov. Rick Perry could make an appointment to that position in September. Isassi, a Democrat, has sought the intervention of a prominent local Republican -- whom he declined to identify -- to intercede with the governor.

A special prosecutor was appointed to investigate and try the case.

Contact Dan Kelley at 886-4316 or kelleyd@caller.com

("[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent..

2008-12-30T22:54:00.000-08:00

8. Castleberry v. State, 704 S.W.2d 21, 24 (Tex. Crim. App. 1984) ("[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is 'patently unconstitutional.'") (quoting Hayes, 434 U.S. at 363).

Yup that is what they do everyday to the illegally trained......especially those most vulnerable, children and their parents in Nueces County JP 2-2 court.

We should all be so lucky as to get this type of "super" legal representation

2008-06-27T03:45:00.000-07:00

Richard Warren Mithoff has been described by the National Law Journal as “one of the nation’s highest profile litigators,” and the Texas Lawyer, noting his “impressive trial record,” has described his approach to the law as “magic.”

He has consistently been named among the top trial lawyers in the country:

*printer friendly version

*

Top 10 Texas “Super Lawyers” (2003-2007)
*

Top Five “Go To” Personal Injury Lawyers, Texas Lawyer (2002)
*

Top 10 Trial Lawyers in the Southwest, National Law Journal (1999)
*

Top 10 Trial Lawyers in the United States, Forbes (1989 and 1995)
*

2006 Trial Lawyer of the Year – Texas Bar Association
*

Best Civil Lawyer in Houston, Houston Press (1998 and 2004)
*

Best Lawyers in the U.S., (1989-2007)
*

American College of Trial Lawyers
*

International Academy of Trial Lawyers
*

International Society of Barristers
*

American Board of Trial Advocates

In naming Mr. Mithoff the “Best Civil Lawyer” in Houston in 1998 and again in 2004, the Houston Press described his courtroom style as “dazzling his opposition with pretrial maneuvers and connecting emotionally with any juror he needs,” while noting that he has “earned a reputation for honesty and forthrightness with clients, judges, and the media.”

Practicing in the area of general civil litigation with Mithoff Law Firm, Mr. Mithoff has focused on personal injury and commercial litigation, including medical malpractice, products liability, aviation, and admiralty cases. Mr. Mithoff has recovered more than $1 million by verdict or settlement in over 100 personal injury and commercial cases, and has successfully defended clients in commercial cases involving claims of several hundred million dollars for breach of contract, antitrust, trade secrets, and patent infringement. His diverse list of clients includes San Diego Padres owner John Moores, the family of former Houston Oilers owner Bud Adams, the family of police-shooting victim Pedro Oregon, the Democratic Party, J. P. Morgan Chase in the Enron litigation, Momentum Operating Co. and families of the BP Texas City explosion, the bus accident involving senior citizens fleeing Houston and Hurricane Rita and victims of a bus accident between Mexico and Houston (near Victoria, Texas).

Significant Cases

In 1998, Mr. Mithoff represented Harris County in the tobacco litigation and joined with several other attorneys in securing a judgment in excess of $2.2 billion in behalf of all Texas counties and hospital districts. He requested that $10 million from his fee in that case be retained by Harris County to fund children’s health programs. The Houston Chronicle, in an editorial praising the landmark settlement, described Mr. Mithoff as a “powerhouse attorney” whose “charitable gesture is deserving of the highest accolades.”

In 1999, in a complex trade secret dispute involving major business entities, Mr. Mithoff, along with other attorneys, negotiated a confidential settlement in which claims against their client, the defendant, were dismissed completely, with the plaintiff paying $39 million in damages to settle a counterclaim for anti-trust damages.

In 2000, Mr. Mithoff obtained a verdict of $40 million against Columbia Hospital for acting with malice in the retention of a staff physician whose botched surgery resulted in catastrophic brain injury to the patient, the first such verdict of its kind in the country. The case was subsequently settled after it was reversed and remanded for new trial.

In 2002, Mr. Mithoff won a verdict of $29 million in behalf of the family of a man killed in a rollover accident, securing a judgment against Sears, the tire retailer, in the first verdict in the country involving a Bridgestone/Firestone tire since the recall in 2000. (Settled on appeal.)

In 2003, Mr. Mithoff negotiated a $10 million settlement in behalf of the family of a 9-year-old child burned to death in a fire resulting from a rear-end collision with a Houston Metro bus, prompting calls for reform, in the hiring and training procedures of the bus operator First Transit.

In 2003, Mr. Mithoff represented the 42-year-old victim of an. explosion at the Imperial Sugar Co. facility in Sugar Land, Texas, citing defects with its explosion suppression system. The case settled for $5.5 million.

In 2004, Mr. Mithoff won a verdict of $24.7 million against Progressive Insurance Company, among others, for negligence in arranging for a rental car by a man known by the company to have had a recent history of convictions for driving while intoxicated, resulting in the collision and fire, and the death of a 56-year-old woman. (Settled on appeal.)

Also in 2005 Mr. Mithoff negotiated settlements for families of five victims killed in the explosion at the BP plant in Texas City. He also settled suits for victims of the 2004 BP explosion. (Confidential settlements)

In 2006 Mr. Mithoff negotiated settlements for the families of victims who died fleeing Hurricane Rita in a bus charted by the Brighton Gardens of Bellaire Senior Citizen Center. (Confidential settlements)

In 2007, Mr. Mithoff won a verdict of $31.8 million against Allied Van Lines in behalf of the families of a 9-year-old child and an 18-year-old woman burned to death and two victims who were severely burned in a fire resulting from a rear-end collision with an Allied Van.

Pioneering Cases

Mr. Mithoff won the first case to establish a defect in silicone breast implants in a landmark decision in 1977, and he and his firm in recent years have recovered over $70 million for clients in breast implant litigation.

Nationally, he is recognized for his “pioneering litigation” in cases of babies suffering brain damage during childbirth. One of his first widely publicized cases involved a $119 million structured settlement in a malpractice case against a Pasadena hospital in behalf of a child injured at birth. The case was featured on ABC’s Nightline and led to changes in the laws relating to hospital reporting requirements for the misconduct of doctors.

A $10.5 million judgment obtained in 1997 by Mr. Mithoff in behalf of a pregnant woman against a hospital and anesthesiologist with a history of drug abuse required the hospital to make sweeping changes in its by-laws and drug screening procedures--an order described as a “precedent setting decision” by the American Hospital Association.

Another landmark case won by Mr. Mithoff in 1993 involved the death of a young woman from hyponatremia--a low sodium condition affecting primarily women and young children following the use of improper IV solutions after surgery. The verdict resulted in changes in hospital procedures concerning the use of such IV fluids, and one of the experts involved in recommending these changes has estimated that such changes will save thousands of lives every year.

Mr. Mithoff has been involved in many other landmark cases over the years in which resulting changes in product design or usage have led to a reduction in risk of injury. These cases include litigation involving the defective Dalkon Shield IUD, which increased the risk of pelvic inflammatory disease, and defective tampons, which elevated the dangers of toxic shock syndrome.

Professional Background

A native of Lufkin and reared in El Paso, Mr. Mithoff attended the University of Texas at Austin, majoring in business administration. After graduating in 1968, he enrolled in the UT Law School, graduating in 1971. He was Project Editor of the Texas Law Review in his final year at UT. Following graduation, he clerked for U.S. District Judge William Wayne Justice. In 1974, he went into practice with legendary trial attorney Joe Jamail with the firm that later became Jamail, Kolius & Mithoff. In 2006 he established the Mithoff Law Firm.

Mr. Mithoff has endowed a series of scholarships at his alma mater, the University of Texas at Austin, including a Presidential Scholarship in law for educationally, socially and culturally disadvantaged students at the UT Law School, a Presidential Scholarship for disabled students at UT Business School and an endowed professorship in neonatal/perinatal medicine at the UT School of Medicine. The UT Medical School endowment funded community outreach perinatal centers, as well as the Life Flight program to bring injured babies quickly from outlying community hospitals to major medical centers.

Active in State Bar committees and Continuing Legal Education, Mr. Mithoff has served on the Supreme Court of Texas Committee on Judicial Appointments, on the State Bar of Texas Committee on Pattern Jury Charges, and as Special Assistant Disciplinary Counsel to the Texas Commission for Lawyer Discipline. He has also been a guest speaker at many seminars on a variety of topics throughout the country. He has served as president of the Houston Chapter of the American Board of Trial Advocates and president of the Houston Trial Lawyers.

In 1997, Mr. Mithoff was awarded the Jurisprudence Award by the Anti-Defamation League in recognition of his “immense talents, persuasive ability, and energy to fight for the principles enshrined in the Constitution and the League’s mission--justice and fair treatment for all.”

Richard and Ginni Mithoff were awarded the first Ben Taub Humanitarian Award by Harris County Hospital District Foundation in 2000 in recognition of their philanthropic endeavors as exemplified by the “generosity, interest and advocacy for health care” of the late Ben Taub. The hospital district named its world-class trauma center the Ginni and Richard Mithoff Trauma Center at the Ben Taub Hospital in 2007.

They were selected as honorees at the Children at Risk accolades luncheon in 2002 for their “continuous commitment and service to the children of Houston” and were honored by County Judge Robert Eckels and the Harris County Commissioners Court with a Proclamation that Wednesday, October 2, 2003, be Ginni and Richard Mithoff and Children at Risk Day, in recognition of their efforts “making a positive difference in the lives of the children of our community.” The couple was honored in 2003 with the Samaritan Spirit Award in recognition of their “significant contributions to human health and growth” and in 2007 by Family Services of Greater Houston as the 2007 Family of the Year.

Mr. Mithoff enjoys skiing and mountain climbing. His summits have included Mt. Kilimanjaro in Africa and the Grand Teton in Wyoming, as well as numerous climbs in Patagonia in South America as well as the Pyrenees in Spain, the Mont Blanc range in France, the Drakensberg range in South Africa, and numerous rock climbs in Wyoming and Colorado. He and his wife, Ginni, have two children, Michael and Caroline, and three grandchildren, Mia, daughter of Michael and his wife, Melissa and their twin sons, Max and Matthew

Return to top

*printer friendly documents are in Adobe Portable Document Format (PDF) and may require download of a free plugin to view. This feature is to ensure absolute print compatibility.

Copyright 2005. All rights reserved.

The Prosecution and the Judges are paid by the same "GanG"......."Verdad?"

2008-02-27T01:19:00.000-08:00

most distinguished defenders of individual rights,” “the best-known criminal lawyer in the world,” “the top lawyer of last resort,”

2008-01-24T02:52:00.000-08:00

Alan Dershowitz

Home Biography
Publications
Books
Articles
Book Reviews
Letters to the Editor

In the News
Multimedia
Audio & Video
Photos

FAQ
Contact
Interviews
Engagements
Cases
Comments
Mailing Address

Blog
Biography
# Detailed Biography

Professor Alan M. Dershowitz is Brooklyn native who has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights,” “the best-known criminal lawyer in the world,” “the top lawyer of last resort,” “America’s most public Jewish defender” and “Israel’s single most visible defender – the Jewish state’s lead attorney in the court of public opinion.” He is the Felix Frankfurter Professor of Law at Harvard Law School. Dershowitz, a graduate of Brooklyn College and Yale Law School, joined the Harvard Law School faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg.

He has also published more than 100 articles in magazines and journals such as The New York Times Magazine, The Washington Post. The Wall Street Journal, The New Republic, The Nation, Commentary, Saturday Review, The Harvard Law Review and the Yale Law Journal, and more than 300 of his articles have appeared in syndication in 50 national daily newspapers. Professor Dershowitz is the author of 27 fiction and non-fiction works with a worldwide audience. His most recent titles include Rights From Wrong, The Case For Israel, The Case For Peace, Blasphemy: How the Religious Right is Hijacking the Declaration of Independence and Preemption: A Knife that Cuts Both Ways, Finding Jefferson – A Lost Letter, A Remarkable Discovery, and The First Amendment In An Age of Terrorism.

In addition to his numerous law review articles and books about criminal and constitutional law, he has written, taught and lectured about history, philosophy, psychology, literature, mathematics, theology, music, sports – and even delicatessens.

In 1983, the Anti-Defamation League of the B'nai B'rith presented him with the William O. Douglas First Amendment Award for his "compassionate eloquent leadership and persistent advocacy in the struggle for civil and human rights." In presenting the award, Nobel Laureate Elie Wiesel said: "If there had been a few people like Alan Dershowitz during the 1930s and 1940s, the history of European Jewry might have been different." Professor Dershowitz has been awarded the honorary doctor of laws degree by Yeshiva University, the Hebrew Union College, Brooklyn College, Syracuse University and Haifa University. The New York Criminal Bar Association honored him for his "outstanding contribution as a scholar and dedicated defender of human rights."

[return home]
© Alan M. Dershowitz 2006–2008. All rights reserved. | About the Site

And I ask, "Why don't you speak up?"

2008-01-24T02:35:00.000-08:00

Alan Dershowitz

Home Biography
Publications
Books
Articles
Book Reviews
Letters to the Editor

In the News
Multimedia
Audio & Video
Photos

FAQ
Contact
Interviews
Engagements
Cases
Comments
Mailing Address

Blog
In the News
# Archive

Voices of Antisemitism

Alan Dershowitz is concerned over what he views as a rising tide of antisemitic speech on American college campuses.

ALAN DERSHOWITZ:

I sure hope that [Jean-Paul] Sartre was not right that the antisemite makes the Jew. When I was growing up, antisemitism determined where we could work, where we could live, where we could go to school, who we could socialize with. None of that's true today. Antisemitism, its not a central phenomenon in the life of Americans. Whereas, of course, assimilation and other ways of Judaism being endangered from within are increasing problems. I think what we need is positive Judaism. We need young Jews to see the strengths, the positive aspects of Judaism, not only as a religion but as a culture, a civilization, as part of one's way of life. Even though antisemitism is not a function of their own lives.

DANIEL GREENE:

Author, professor, and civil liberties attorney Alan Dershowitz is concerned over what he views as a rising tide of antisemitic speech on American college campuses. Dershowitz calls upon his peers to condemn those who would use such rhetoric to justify hatred of Jews.

Welcome to Voices on Antisemitism, a free podcast series of the United States Holocaust Memorial Museum. I'm Daniel Greene. Every other week, we invite a guest to reflect about the many ways that antisemitism and hatred influence our world today. Here's Harvard Law School professor, Alan Dershowitz.

ALAN DERSHOWITZ:

I never wanted to write the book The Case for Israel. I wanted to write The Case for Peace, which I eventually did. I had to write The Case for Israel, even though nobody has to write The Case for Canada, or The Case for New Zealand, or The Case for France or [The Case for] England, because the case against Israel was being so prominently featured on American university campuses, and it was based on such ignorance that I had to get the liberal case for Israel out there based on facts. And when I did that it was seen immediately as an enormous threat to the hard left presence on campuses.

If you look at some of the cartoons that are being used against Israel, against Israeli leaders and supporters of Israel, most recently against me, the propaganda effort has changed. And instead of a conversation about Israel and the Palestinians, there is an attempt to dehumanize Israel and to demonize Israel. And Holocaust denial is increasing. Holocaust minimization is increasing. Holocaust comparativization is increasing. And education is critically important. When a Holocaust denier speaks on a college or university campus, I see that as an educational moment, as an opportunity to educate students, and instead of trying to ban the speaker, respond and educate.

It's good to be critical of Israeli policies, just like it's good to be critical of American policies. I'm no less a patriot because I'm critical of the Iraq war or other American policies. And I'm no less a Zionist because I'm critical of many Israeli policies. Even criticism of Zionism is perfectly acceptable intellectually. It's the double standard, the hyper-criticism, the unwillingness to find anything decent in Israel, that begins to blur the lines between criticism of Israel the state, and criticism of Israel, the Jew among the states.

When I speak on college campuses, and I speak on many, I get calls the next day always, almost in a whispered voice: "Thank you for speaking up."

And I ask, "Why don't you speak up?"

"Well, you know, we don't want to be unpopular with students. We don't want to get into controversial areas. We don't want to be politically incorrect."

It's appalling how irresponsible most American academics have been in the face of this well-organized campaign to turn our current generation of college students and our future leaders against Israel and against Jewish interests and values. We have the responsibility to stop it. We have the resources to stop it. We have the ability to stop it. And if we fail to respond to hate speech, it's our fault.

DANIEL GREENE:

Voices on Antisemitism is a free podcast series of the United States Holocaust Memorial Museum. Join us every other week to hear a new perspective on the continuing threat of antisemitism in our world today. To contribute your thoughts to our series, please call 888-70USHMM, or visit our Web site at www.ushmm.org. At that site, you can also listen to Voices on Genocide Prevention, a podcast series on contemporary genocide.
[return to the top of this page] | [return home]
© Alan M. Dershowitz 2006–2008. All rights reserved. | About the Site

Email: dersh@law.harvard.edu

2008-01-23T01:19:00.000-08:00

Harvard Law School
Jump to navigation
HLS home > faculty > directory
Alan M. Dershowitz
[faculty photo]

Felix Frankfurter Professor of Law
Office: Hauser 520
Assistant: Sarah Neely 617/496-2020
Phone: (617) 495-4617
Fax: (617) 495-7855
Email: dersh@law.harvard.edu
Web Page: www.alandershowitz.com

Research Interests

* Criminal Law
* Rights

Subject Areas for Supervising Written Work

* Civil Liberties
* Criminal Law
* Jewish Law

Subject Areas for Accepting Press Inquiries

* Litigation/Trials/Criminal Process
* Rights
* Speech

Education

* Brooklyn College A.B. 1959
* Yale Law School LL.B. 1962

Appointments

* Assistant Professor of Law, 1964
* Professor of Law, 1967
* Felix Frankfurter Professor of Law, 1993

Representative Publications

* Dershowitz, Alan M. Preemption: A Knife that Cuts Both Ways (W.W. Norton & Company 2006).
Full text: AMAZON (Purchase)
* Dershowitz, Alan M. The Case for Peace (John Wiley & Sons 2005).
Full text: AMAZON (Purchase)
* Dershowitz, Alan M. America on Trial: Inside the legal battles that transformed our nation -from the Salem witches to the Guantanamo Detainees (Warner Books 2004).
Full text: AMAZON (Purchase)
* Dershowitz, Alan M. America Declares Independence (John Wiley & Sons, Inc. 2003).
Full text: AMAZON (Purchase)
* Dershowitz, Alan M. The Case for Israel (John Wiley & Sons, Inc. 2003).
Full text: AMAZON (Purchase)
* Dershowitz, Alan M. Shouting Fire: Civil Liberties in a Turbulent Age (Little Brown 2002).
Full text: AMAZON (Purchase)
* Dershowitz, Alan M. Why Terrorism Works: Understanding the Threat, Responding to the Challenge (Yale University Press 2002).
Full text: AMAZON (Purchase)
* Dershowitz, Alan M. Letters to a Young Lawyer (Basic Books 2001).
Full text: AMAZON (Purchase)
* Dershowitz, Alan M. Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford University Press 2001).
Full text: AMAZON (Purchase)
* Dershowitz, Alan M. The Genesis of Justice: Ten Stories of Biblical Injustice That Led to the Ten Commandments and Modern Law (Warner Books 2000).
Full text: AMAZON (Purchase)

Bibliography

View bibliography

HLS Contact Information | Privacy Policy
Section Links:

* Professors and Assistant Professors of Law
* Professors Emeriti
* Clinical Professors and Assistant Clinical Professors of Law
* Affiliated Professors in International Legal Studies
* Adjunct Professors of Law
* Visiting Professors of Law
* Climenko Fellows
* Lecturers on Law
* Alphabetic Faculty Listing

Related Links:

* Additional HLS Faculty Web Sites
* Faculty Bibliography Search
* Visiting Faculty Appointments

Main site navigation:

* Admissions and Financial Aid
* Courses and Academic Programs
* Student Services

* HLS Home
* Faculty
* Administration
* Alumni and Giving
* Library
* Public Service
* Research Programs and Centers
* International Legal Studies
* News and Events

HLS website
Faculty section

Who needs the Medical examiner when the Brian Smith is "Clairvoyant"?

2007-12-26T00:21:00.000-08:00

http://www.delmar.edu/news/deathinvestigation080803.html

August 8, 2003

Going…Going…Going Online This Fall
High demand spurs College’s Death Investigation Program to offer Internet courses worldwide

When Del Mar College began offering its Death Investigation Program two years ago, 33 students began taking one of the first three courses developed. Over 100 other local students had to put their name on a waiting list to enroll in the classes.

But a partnership that emerged nearly four years ago with the U.S. Congress, the Kitsap County Coroner’s Office in Washington State, the Nueces County Medical Examiners Office and local computer software company INDX, Inc. is now putting death investigation at the forefront on the Internet. This fall, Del Mar will begin offering its courses online to reach more students across the country–even around the world.

“Our program has grown exponentially during the past two years,” says John Graham, instructor of criminal justice. “And we expect even more growth when our online degree program is promoted internationally through the NOMIS Project.” Online courses the College will offer include Death Investigation I, Death Investigation II and the Legal and Social Aspects of Death and Dying.

The Network of Medicolegal Investigative Systems, known as NOMIS, is a computer program developed and owned by INDX, Inc. The company offered to modify NOMIS for the government to assist in the investigation of tracking incidences of death, including those caused by weapons of mass destruction and bioterrorism. The program will facilitate the collection, analysis and retrieval of data in several areas, including identification of missing/unidentified deceased persons; mass fatality victim identification; investigator training and certification; electronic death registration; evidence control and disposition; Emergency Room casualty tracking; military combat aid station tracking; contagious diseases and epidemics; AMBER Alert communications; serial homicides; among several others.

NOMIS will offer a comprehensive solution to the needs of medicolegal and law enforcement jurisdictions and provide a common national infrastructure that serves multiple agencies at all levels of government. National security, national defense, criminal justice, public health and disaster mitigation, response and recovery will all benefit from the application.

The partnership is sponsoring the deployment of the NOMIS Basic Death Investigation Web Service application this month with an anticipated in-depth testing date set for Aug. 8. The Web site, located at www.nomisproject.com, will also link to Del Mar’s Death Investigation Program.

Of the partnership, Graham says, “This marriage was made in heaven, not only for Del Mar College but for the entire nation.” He reiterates that under the agreement, NOMIS will provide worldwide instant access to the College’s Death Investigation Program while Del Mar will have perpetual access to data stored onsite for research purposes or educational needs. “This is a great deal for us.”
Graham says that in 2001, U.S. Congressman Solomon Ortiz successfully funneled a line item appropriation through the Department of Justice as part of the 2002 national budget to fund INDX, Inc.’s expansion of the NOMIS application’s abilities.

According to Graham, NOMIS was created using “what experts called an impossible amount of funding, only $300,000, to complete what normally takes millions of dollars.” Del Mar College and INDX, Inc. worked together and are now close to completing the second version of the application.

“Del Mar College has achieved a minor miracle with the funding received in the line item appropriation,” he notes. “We created a new degree, a national data collection program and retained the right to access data from that program. We could not afford to purchase this kind of powerful tool or build it without the dedication of College faculty with the Legal Professions and Computer Science Departments and Information Technology personnel, who all had a hand in making this a reality.”

Additionally, Del Mar Criminal Justice students tested the Alpha version of NOMIS using a simulated attack on the Port of Corpus Christi. Many fatalities were incorporated into the exercise so that students could pretend to be first responders to a central emergency command post.

“With no training, they were able to master the program and begin downloading data within five minutes,” Graham says. “This type of usability is of paramount importance. If this system had been available on 9-11, the process of recovery and identification may have been enhanced.”

Graham says that requests for entry into the Death Investigation Program continuously come from individuals across the nation. “Demand is high, but now that the program will be promoted on the NOMIS Project homepage, the Legal Professions Division is gearing up for an additional influx of requests,” he says.

“We’re literally calling medical examiners and investigators all over the country to recruit adjunct instructors to teach this fall’s online courses,” Graham adds. “I’ve even spoken to a forensic pathologist in Great Britain.”

“Del Mar College is the only institution of higher education that offers a degree program in Death Investigation,” notes Graham. “Combined with the national deployment of NOMIS, the number of requests for this degree are probably going to be beyond our immediate ability to respond. What a wonderful problem to have.”

###

Sidebar Story:

Death Investigation Student Currently Working in Field
Director of Morgue Services with Nueces County Medical Examiners Office close to finishing program

She only lacks taking five classes to complete Del Mar College’s Death Investigation Program. But as Alex Medina puts it, “The field is not for everyone.”

“You don’t know what work is going to be like from one day to the next,” says Medina, a criminal justice and death investigations major and the director of morgue services at the Nueces County Medical Examiners Office. “You deal with death every day, and you see people you have known, friends or someone you went to school with. You just don’t know who you’ll see until you pull the cover back.”
The Corpus Christi native enrolled in Death Investigations courses when the College’s Department of Legal Professions began offering the program in fall 2001. Medina says her extensive experience in healthcare, including clinical, administrative and emergency services have been beneficial as she’s worked through the program.

“I enrolled in the Death Investigation Program during its infancy,” she notes. “But the program is expanding and is great for students here in Corpus Christi.” She notes that the high employment demand in the field means graduates have opportunities to find positions all over the country.

Prior to returning to Corpus Christi three years ago, Medina joined the U.S. Navy and began serving as a corpsman and EMT (emergency medical technician) in 1987. The 34-year-old is a nationally registered EMT, a certified medical assistant and a licensed ambulance driver.

But, Medina’s fascination with forensics and work with several pathology groups over the years spurned her interest to enroll in the Death Investigation Program when she decided to go back to college. “I started taking 22 to 26 credit hours when I enrolled,” she says. “I also wanted to get my foot in the door and made myself known to Ric Ortiz, who’s the chief investigator in the county’s Medical Examiners Office and was one of the first adjunct instructors to teach courses in the new program.”

“During class tours of the facility, I made a point of meeting the forensic staff and kind of pushed my way in here,” she muses. “When a position became available, I applied for it and went through the same process as the other candidates. But my education and work experience was key to my getting the position.”

Medina says death investigations is very demanding--physically and psychologically. “People are fascinated as to why I chose this field, but I believe I am where I’m suppose to be at this time in my life. I find the work intriguing. It’s like solving a puzzle.”

She adds, “This field requires special people who can find the answers as to why or how someone died.”

-DMC-me

Return to CRO News Releases
nanotechnologicu.blogspot.com

Why were these Senators absent or asleep but truant none the less...skipping school where is their excuse?

2007-11-15T21:20:00.000-08:00

MINUTES

SENATE COMMITTEE ON TRANSPORTATION AND HOMELAND SECURITY

Thursday, November 8, 2007

10:00 a.m.

Museum of Art, El Paso, Texas

*****

Pursuant to a notice posted in accordance with Senate Rule 11.18, a public hearing of the Senate Committee on Transportation and Homeland Security was held on Thursday, November 8, 2007, in the Museum of Art, El Paso, Texas.

*****

MEMBERS PRESENT:

Senator John Carona

Senator Eliot Shapleigh

MEMBERS ABSENT:

Senator Kirk Watson

Senator Kim Brimer

Senator Rodney Ellis

Senator Robert Nichols

Senator Florence Shapiro

Senator Jeff Wentworth

Senator Tommy Williams

*****

The chair called the meeting to order at 10:00 a.m.

The Committee received invited and public testimony related to Homeland Security, Crossborder Trade, Driver License Fraud, Texas Observer Open Records Request for Capitol tapes, Enhanced Driver License and the Driver Responsibility Program. The Committee also received a quarterly update on the implementation of 80th Regular Session legislation.

Witnesses are shown on the attached list.

There being no further business, at 2:07 p.m. Senator Carona moved that the Committee stand recessed subject to the call of the chair. Without objection, it was so ordered.

Senator John Carona, Chair

Erika Akpan, Asstistant Clerk

Exploitation of the elderly by the losers who fall for gold diggers....

2007-08-17T10:06:00.000-07:00

Executive Order RP33 - April 14, 2004
Relating to reforming the Adult Protective Services Program

BY THE
GOVERNOR OF THE STATE OF TEXAS
Executive Department
Austin, Texas
April 14, 2004

WHEREAS, the State of Texas values older Texans and persons with disabilities, and is committed to ensuring that these Texans, particularly as the number of older adults increases, can live in a safe and healthy environment; and

WHEREAS, the mission of the Adult Protective Services program is to protect older adults and persons with disabilities from abuse, neglect, and exploitation by investigating and providing or arranging for services necessary to prevent or alleviate maltreatment; and

WHEREAS, concerns about self-determination not withstanding, it is equally important to ensure the state�s commitment to helping individuals who have lost the ability to provide for themselves the goods and services which are necessary to avoid physical harm, mental anguish, or mental illness; and

WHEREAS, the most effective way to prevent and address the abuse, neglect, or exploitation of adults is to ensure that Adult Protective Services is closely working and coordinating with every community stakeholder in preventing and investigating elder abuse, including the medical community, the mental health community, victims rights associations, advocate groups, legal experts, courts, law enforcement, and others; and

WHEREAS, the full participation of municipal, county, and state law enforcement is key to identifying, investigating, and stopping elder abuse, neglect, and exploitation; and

WHEREAS, the administration and organization of the Adult Protective Services program should operate efficiently and be accountable for the protection and safety of older Texans and persons with disabilities; and

WHEREAS, under House Bill No. 2292 of the 78th Legislature, the Health and Human Services Commission was charged to provide policy direction, oversight, administrative support, and accountability for the health and human services agencies, including the Department of Family and Protective Services; and

WHEREAS, reports of cases of potential elder abuse and neglect in El Paso prompt the necessity of extraordinary measures;

NOW, THEREFORE, I, Rick Perry, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order the following:

Systemic Reform. The Health and Human Services Commission, considering this effort of the highest priority, shall direct and oversee the systemic reform of the Adult Protective Services program, focusing on the need to protect older adults and persons with disabilities from abuse, neglect, and exploitation. The Commission shall request assistance from additional state agencies as needed to ensure an appropriate and comprehensive reform of the program.

Review of Case Files.The Health and Human Services Commission shall immediately begin an independent review of previously closed cases in the Adult Protective Services program, prioritizing cases for review, determining whether regulations have been consistently followed, and taking immediate corrective measures in cases where needed. The Commission shall ensure that any necessary and appropriate disciplinary action be taken in response to all cases identified as having been mishandled, particularly if injury or death resulted from inappropriate action. The Commission shall use information collected from these case reviews to ensure the reforms to the Adult Protective Services program promote the continued health and safety of older Texans.

Administrative Reform. The Health and Human Services Commission shall conduct a comprehensive administrative reform of the Adult Protective Services program, including developing new training procedures, developing minimum qualifications for caseworkers and supervisors, and ensuring the effective application of all state statutes and policy requirements to protect the safety and well-being of older adults and persons with disabilities.

Organizational Reform. The Health and Human Services Commission shall conduct a comprehensive organizational reform of the Adult Protective Services program to ensure the appropriate placement of state resources and program supervisors for proper and sufficient regional oversight and communication, the effective application of all state statutes and policy requirements, and the most appropriate outcomes for older adults and persons with disabilities.

Increase Use of Technology. The Adult Protective Services program shall consistently take advantage of new technology, such as digital cameras and wireless communication devices, to improve the quality of services, monitoring and investigation of cases.

Partner with Law Enforcement. The Texas Department of Public Safety is directed to give high priority to investigating and addressing any potential criminal cases of elder abuse and neglect. Additionally, the Department of Public Safety shall coordinate with municipal and county law enforcement and the Health and Human Services Commission staff members to provide assistance as needed in conducting home and institutional visits of elders and persons with disabilities and to develop appropriate training on investigative techniques for these cases.

Partner with Local Communities. The Adult Protective Services program shall work with community partners to establish permanent cooperative relationships in local communities to prevent and raise awareness of the abuse, neglect, and exploitation of older Texans and persons with disabilities. These partnerships shall include the primary care and geriatric medical community, the mental health community, local area agencies on aging, victims� rights groups, advocate groups, legal experts, courts, law enforcement as well as any other local or unique community resources necessary.

Review of State Policy. The Health and Human Services Commission and the Adult Protective Services program shall review and adopt new rules and policies, including the development of a new and appropriate screening tool, which may be necessary to implement this Executive Order. These policies shall take into consideration all aspects of the person�s situation from their cognitive abilities to the environment in which they live, so that the rights of the individual are balanced with the requirement that they live in a healthy and safe environment.

Review of Statute. The Health and Human Services Commission and the Adult Protective Services program shall review and make recommendations regarding any changes in statute which may be required.

Report of Compliance. The Health and Human Services Commission shall oversee the development and submission of an implementation plan and a final report of the implementation of this order. The implementation plan shall outline the specific actions taken to implement this order and shall be submitted no later than 90 days of the date of this order. The final report shall review all actions taken, as well as the recommended statutory changes developed in compliance with the Order, and shall submit this report to the Office of the Governor no later than November 1, 2004.

Full Cooperation. All affected agencies and other public entities shall cooperate fully with the Health and Human Services Commission during the research, analysis, and implementation of this order.

This executive order supersedes all previous executive orders on Adult Protective Services. This order shall remain in effect until modified, amended, rescinded, or superseded by me or by a succeeding Governor.

Given under my hand this the 14th day of April, 2004.

RICK PERRY
Governor

ATTESTED BY:
GEOFFREY S. CONNOR
Secretary of State

"IN THE KNOW": "Mr. and Mrs. North and South America and all ships at sea," "Let’s go to press!

2007-08-06T04:58:00.000-07:00

"IN THE KNOW": "Mr. and Mrs. North and South America and all ships at sea," "Let’s go to press!

Just got back from hooking some Big Reds at the Mother Lagoon. Now, that's WATT I'm talkin bout invoking a FIGHT. I had not had an opportunity to read the Caller Times and Jamie Powell's Political Pulse and one of the guys came up and starting telling us how Junior John attacked the internet community and Mikal WATTSFORSENATE Campaign amateur. He said, "They are talking about you all over the Newspaper today". I asked him, "What do you mean? Who is "they"?

He said that Senator guy Cornyn, he is saying that the blogs and the internet message are an amateur way for WATTS to Campaign. He is saying Mikal Watts but he is talking about you.

Well, I am not with the WATTSFORSENATE Campaign but I am going against Junior John.

The said to me, you must be starting to irritate them, getting to them with things they cannot defend or else he wouldn't say anything.

I told him, "I am a fly, and I am going a Junior John, I am now in his ear, He will scratch and scratch at his ear trying to get me out, he will scratch until he is bleeding, he will himself to death trying to get me out of his ear."

Rothenberg Report, calling Watts' campaign Web site video, "the silliest, most transparent attempt to deliver a message I have ever seen."

Who is Rothenberg and why should we care WATT he says? It is enough to know he is trying to get Junior John re-elected. His writing is meaningless rhetoric. Transparent? Transparency is a good thing, but obviously transparency is a negative attribute of Government according to the GOP?

"If this is Mikal Watts' first attempt to draw attention to his campaign via the Internet he may ought to use another medium," said Texas GOP spokesman Hans Klingler. "Watts invoking the word 'fight' without the slightest idea or experience in any elected or leadership arena is comical."

We (Los Kenedenos) were going after Junior John prior to any Watts intentions to challenge the Junior Senator. Besides, why would a GOP Spokesman advise us? We are definitely in a good medium current or else ole Hans would not be advising us to "use another medium". We are definitely connecting with the "sweet spot" and they keep on changing pitchers. As far as fight, come and get it BOYS. Amateur, we take that as a compliment and it is a true statement, in our case.

WATT are you scared of Junior John?

Bring it now and may we dance everyday until the day when Texas will make their choice.

Invoking the word Fight?
"without the slightest idea or experience in any elected or leadership arena"

We know WATT Junior John's idea of leadership is, it is a sycophantic relationship with the GOP.

Junior John's Experience is his record and there is nothing there for the average Texan, there is nothing in his record for the South Texan or for the hispanic.

We got him building a border fence that was appropriated for, as a Concrete WAll.

Invoke the word FIGHT Mr Hans exclaims?

We will take our chances.

We stand waiting in the ring or in the alley whichever you choose Mr Hans Klingler.

As far as leadership and elected arenas, we got Junior John's record vs the hope that somebody has the balls to run his A$$ out of office.

We are here and the hope begins to grow.

The snowball now, only needs a little downward slope and then we just jump on for the ride.
We wont need to support it anymore and you guys cant stop it, it will just keep rolling and rolling and rolling.

You GOP guys, doncha you got a little better punch than that to throw? Where is all that salty dog experience of the "Professional Politician / Carpet Bagger"?

You know WATT I mean by Professional Carpetbagger?

come around only at election time
say and do WATT ever it takes to get re elected.
Quiet up about the Craddick transgressions even though you should denounce him,
mums the word on building a wall but let the racist haters know you still support it
and charm the Humanities and let them know you are for them and have always supported them
like you tried to you act like you are for the American GI Forum and have always supported the Hispanic culture in that plagiarized article in some East Texas Publication; where you were trying to use the image and spirit of DR Hector P Garcia.

Junior John is now officially a comedian.

Well he must be?
Isn't he trying to make us laugh?

Surely Junior John does not think we are stupid enough to believe his Cotton Eyed Joe song and Dance?

WATTS that word?

B U L L S H / T ! ! !

GOP suggests Watts' campaign is amateur

The Texas Republican Party went on the offensive Friday against lawyer Mikal Watts, who is making a run at Republican U.S. Sen. John Cornyn.

The state GOP cited a recent article by Stuart Rothenberg, author of the national political publication Rothenberg Report, calling Watts' campaign Web site video, "the silliest, most transparent attempt to deliver a message I have ever seen."

"If this is Mikal Watts' first attempt to draw attention to his campaign via the Internet he may ought to use another medium," said Texas GOP spokesman Hans Klingler. "Watts invoking the word 'fight' without the slightest idea or experience in any elected or leadership arena is comical."

No person should be forced to give up their right to an attorney.

2007-07-27T23:32:00.000-07:00

The Fair Defense Project
Ensuring a Just and Accountable Judicial System by Protecting
Your Right to a Lawyer.

The Fair Defense Project at TCJC works to ensure that every person is treated equally in Texas’s criminal justice system, regardless of wealth. Every indigent person accused of a crime should be appointed competent legal representation promptly. No person should be forced to give up their right to an attorney.

The Fair Defense Project conducts local and statewide monitoring to document practices that may create obstacles for indigent defendants who need representation or that may significantly delay the appointment of a defense attorney to defendants. The Fair Defense Project also engages in administrative advocacy with the Texas Task Force on Indigent Defense and individual counties in order to promote improvements to the state’s delivery of indigent defense services.

P.O. Box 301587, Austin, TX 78703-0027 | tel. 512.441.8123 | info@criminaljusticecoalition.org

What is at issue here, however, is a different sort of creature, which might be ..........

2007-07-22T01:39:00.000-07:00

skip navigation
Cornell UniversityCornell Law School

* Search Law School
* Search Cornell

LII / Legal Information Institute

* home
* search
* sitemap
* donate

Supreme Court collection

* main page
* about
* search
* subscribe

Illustration: U.S. Supreme Court building

Stuston v. U.S. (94-8988), 516 U.S. 193 (1996)
Concurrence
[ Stevens ] Dissent
[ Scalia ] Other
[ Rehnquist ]
HTML version
WordPerfect version HTML version
WordPerfect version HTML version
WordPerfect version

SUPREME COURT OF THE UNITED STATES
ANTHONY LEO STUTSON
94-8988 v.
UNITED STATES on petition for writ of certiorari to the united states court of appeals for the eleventh circuit

ALEXIS LAWRENCE, guardian and next friend on behalf of KEMMERLYN D. LAWRENCE, a minor

94-9323v.

SHIRLEY S. CHATER, COMMISSIONER OF
SOCIAL SECURITY on petition for writ of certiorari to the united states court of appeals for the fourth circuit

Nos. 94-8988 and 94-9323. Decided January 8, 1996.

Justice Scalia , with whom Justice Thomas joins, I dissent because I believe that the dispositions in both No. 94-8988 and No. 94-9323 are improper extensions of our limited power to vacate without first finding error below.

It sometimes occurs that, after having considered the lower court decision and found error, an appellate court merely reverses or vacates and then remands--that is, it sets the judgment aside and sends the case back to the lower court for further proceedings, rather than entering or directing entry of judgment for the appellant or petitioner. That is the appropriate course whenever the finding of error does not automatically entitle the appellant or petitioner to judgment, and the appellate court cannot conduct (or chooses not to conduct) the further inquiry necessary to resolve the questions remaining in the litigation. Our books are full of suchcases, from Glass v. Sloop Betsey, 3 Dall. 6 (1794), and Clarke v. Russel, 3 Dall. 415 (1799), to Vernonia School Dist. 47J v. Acton, 515 U. S. ___ (1995), and Tuggle v. Netherland, 516 U. S. ___ (1995).

What is at issue here, however, is a different sort of creature, which might be called "no fault V&R": vacation of a judgment and remand without any determination of error in the judgment below. In our discretionary certiorari system of review, such an order has acquired the acronym "GVR"--for the Court grants certiorari, vacates the judgment below, and remands for further proceedings. [n.1] The question presented by today's cases is whether there is any limitation (other than the mandate "do what is fair") upon this practice. The Court's per curiam opinions answer "no"; I disagree.

Title 28 U.S.C. § 2106 provides that "[t]he Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances." This facially unlimited statutory text is subject to the implicit limitations imposed by traditional practice and by the nature of the appellate system created by the Constitution and laws of the United States. The inferior federal courts (to say nothing of state courts) are not the creatures and agentsof this body--as are Masters, whose work we may reject and send back for redoing at our own pleasure. Inferior courts are separately authorized in the Constitution, see Art. I, §8; Art. III, §1, created by Acts of Congress, see, e.g., Judiciary Act of 1789, 1 Stat. 73; Evarts Act, Act of Mar. 3, 1891, 26 Stat. 826, and staffed by judges whose manner of appointment and tenure of office are the same as our own, see U. S. Const., Art. II, §2; Art. III, §1; 28 U.S.C. §§ 44 133, 134. Despite the unqualified language of §2106, we cannot, for example, "reverse" a judgment of one of these courts "and direct the entry" of a different judgment whenever we disagree with what has been done, but only when we can identify a controlling error of law. And I think we cannot "vacate" and "remand" in the circumstances here.

The Court today seeks to portray our "no fault V&R" practice as traditionally covering a kaleidoscopic diversity of situations. See No. 94-9323, at 3-4. That is in my view a misportrayal; the practice has always been limited to a few discrete categories of cases. It began, apparently, in situations calling forth the special deference owed to state law and state courts in our system of federalism. In Missouri ex rel. Wabash R. Co. v. Public Serv. Comm'n, 273 U.S. 126 (1927), for example, rather than find error on the basis of the federal constitutional claims raised, this Court set aside the judgment of the Missouri Supreme Court and remanded the case to that court for further proceedings so that it could consider the meaning and effect of a state statute that had been enacted after its judgment had been entered. We reasoned that "[w]hile this Court may decide these [state law] questions, it is not obliged to do so, and in view of their nature, we deem it appropriate to refer the determination to the state court." Id., at 131. In other words, we left it to the state court to decide the effect of the intervening event, rather than follow our usual practice of deciding that question for ourselves, see, e.g., Steamship Co. v. Joliffe, 2 Wall. 450, 456-458 (1865). See generally UnitedStates v. Schooner Peggy, 1 Cranch 103, 110 (1801) ("if, subsequent to the judgment [entered by a lower court], and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied"). Later cases took the same deferential approach to state courts when the intervening event consisted of one of our own opinions. See, e.g., State Tax Comm'n v. Van Cott, 306 U.S. 511 (1939). By 1945, we could state that it was "[a] customary procedure" for the Court "to vacate the judgment of [a] state court where there has been a supervening event since its rendition which alters the basis upon which the judgment rests, and to remand the case so that the court from which it came might reconsider the question in light of the changed circumstances." State Farm Mut. Automobile Ins. Co. v. Duel, 324 U.S. 154, 161 (1945). Similarly, where a federal court of appeals' decision on a point of state law had been cast in doubt by an intervening state supreme court decision, it became our practice to vacate and remand so that the question could be decided by judges "familiar with the intricacies and trends of local law and practice." Huddleston v. Dwyer, 322 U.S. 232, 237 (1944).

The "intervening event" branch of our "no fault V&R" practice has been extended to the seemingly analogous situation (though not one implicating the special needs of federalism) in which an intervening event (ordinarily a postjudgment decision of this Court) has cast doubt on the judgment rendered by a lower federal court or a state court concerning a federal question. See, e.g., Amer v. Superior Court of Cal., County of Los Angeles, 334 U.S. 813 (1948); Goldbaum v. United States, 348 U.S. 905 (1955); Henry v. City of Rock Hill, 376 U.S. 776 (1964). This is undoubtedly the largest category of "GVRs" that now exists. See, e.g., Exxon Corp. v. Youell, 516 U. S. ___ (1995); Kapoor v. United States, 516 U. S. ___ (1995); Edmond v. United States, 516 U. S. ___ (1995); Pacesetter Constr. Co. v. Carpenters 46Northern Cal. Ctys. Conference Bd., 516 U. S. ___ (1995); Doctor's Assocs., Inc. v. Casarotto, 515 U. S. ___ (1995); Calamia v. Singletary, 514 U. S. ___ (1995). We regularly hold cases that involve the same issue as a case on which certiorari has been granted and plenary review is being conducted in order that (if appropriate) they may be "GVR'd" when the case is decided. More recently, we have indulged in the practice of vacating and remanding in light of a decision of ours that preceded the judgment in question, but by so little time that the lower court might have been unaware of it. See, e.g., Grier v. United States, 419 U.S. 989 (1974). These applications of "no fault V&R" have nothing to do with federalism, but they are appropriate to preserve the operational premise of a multitiered judicial system (viz., that lower courts will have the first opportunity to apply the governing law to the facts) and to avoid the unseemliness of holding judgments to be in error on the basis of law that did not exist when the judgments were rendered below. They thus serve the interests of efficiency and of concern for the dignity of state and lower federal tribunals.

An entirely separate branch of our "no fault V&R" jurisprudence, but again one that originates in the special needs of federalism, pertains to decisions of state supreme courts that are ambiguous as to whether they rest on state law or federal law grounds. Rather than run the risk of improperly reversing a judgment based on state law, we adopted the practice of vacating and remanding so that the state court could make the reasons for its judgment clear. See, e.g., Minnesota v. National Tea Co., 309 U.S. 551 (1940); Department of Mental Hygiene of Cal. v. Kirchner, 380 U.S. 194 (1965). [n.2]

We have "GVR'd" with increasing frequency in recent years on the basis of suggestions or representations made by the Solicitor General. Some of these cases are nothing more than examples of the "intervening event GVR" discussed above, the Solicitor General pointing out that a case or statute has intervened since the judgment below. See, e.g., Woods v. Durr, 336 U.S. 941 (1949); Altiere v. United States, 382 U.S. 367 (1966). We have also announced "no fault GVRs," however, when there has been no intervening development other than the Solicitor General's confession of error in the judgment. That is a relatively new practice. As recently as 1942 a unanimous Court (two Justices not participating) wrote the following:

"The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. . . . Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of the parties . . . ." Young v. United States, 315 U.S. 257, 258-259 (1942).

Cf. U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. ___ (1994) (setting aside of a validjudicial judgment should not turn upon agreement of the parties). Many of the early "GVRs" based upon the Government's confession of error appear not to have been "no fault V&Rs" at all, but rather summary decisions on the merits, with remand for further proceedings. See, e.g., Chiarella v. United States, 341 U.S. 946 (1951) ("[u]pon consideration of the record and the confession of error by the Solicitor General," remanding to the District Court for resentencing) (emphasis added); Penner v. United States, 399 U.S. 522 (1970) ("[o]n the basis of a confession of error by the Solicitor General and of an independent review of the record," remanding to the District Court "with instructions to dismiss the indictment").

Our recent practice, however, has been to remand in light of the confession of error without determining the merits, leaving it to the lower court to decide if the confession is correct. As late as 1981, the current Chief Justice, joined by Justice White, objected to this practice. See Mariscal v. United States, 449 U.S. 405, 407 (1981) (
Rehnquist, J., dissenting) ("I harbor serious doubt that our adversary system of justice is well served by . . . routinely vacating judgments which the Solicitor General questions without any independent examination of the merits on our own"). I agree with that position. The practice is by now well entrenched, however. See, e.g., Reed v. United States, 510 U. S. ___ (1994); Ramirez v. United States, 510 U. S. ___ (1994). It may be considered a separate category of "no fault V&R."

Finally (and most questionably) we have in very recent years "GVR'd" where the Solicitor General has not conceded error in the judgment below, but has merely acknowledged that the ground, or one of the grounds, on which the lower court relied was mistaken. See, e.g., Alvarado v. United States, 497 U.S. 543 (1990); Chappell v. United States, 494 U.S. 1075 (1990). That is in my view a mistaken practice, since we should not assume that a Court of Appeals has adopted a legal position only because the Government supported it. Four Justices now sitting on the Court have disapproved this sort of "GVR." See Alvarado, supra, at 545 (
Rehnquist, C. J., joined by O'Connor, Scalia, and Kennedy, JJ., dissenting). [n.3]

Today's cases come within none of these categories of "no fault V&R," not even the questionable last one. In No. 94-8988, the decision "in light of" which we vacate the judgment and remand, Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), had been on the books for well more than a year before the Eleventh Circuit announced the judgment under review, and for almost two years before that court denied rehearing. Moreover, the parties specifically argued to the Court of Appeals the question whether Pioneer established the standard applicable to petitioner's claim of "excusable neglect" under Federal Rule of Appellate Procedure 4(b), with the United States disagreeing with petitioner and taking the position that Pioneer was not controlling. The Eleventh Circuit ruled against petitioner on the merits of his claim; its one sentence order contained neither a reference to Pioneer nor any suggestion that the court viewed the case as turning on which party's proffered standard was applied.

The United States has now revised its legal position and--though it makes no suggestion that the Court of Appeals' judgment was incorrect--is of the view that Pioneer does establish the standard governingpetitioner's claim. But the fact that the party who won below repudiates on certiorari its position on a particular point of law does not give rise to any "intervening," postjudgment factor that must be considered. The law is the law, whatever the parties, including the United States, may have argued. As described above, we have sometimes "GVR'd" where the Government has, while still supporting the judgment in its favor, conceded the error of a legal point on which the lower court explicitly relied. As I have explained, see supra, at 7-8, in my view even that practice denies valid judgments the respect to which they are entitled. But the "GVR" in the present case goes still further. We do not know in this case whether the Eleventh Circuit even agreed with the Government's position that has now been repudiated; for all we know, the court applied Pioneer and found against petitioner under that standard. The judgment is declared invalid because the Eleventh Circuit might (or might not) have relied on a standard (non Pioneer) that might (or might not) be wrong, that might (or might not) have affected the outcome, and that the Eleventh Circuit might (or might not) abandon (whether or not it is wrong) because the Government has now abandoned it. This seems to me beyond all reason.

The Court justifies its setting aside of the judgment on the ground that "we [do not] place an excessive burden on [the Eleventh Circuit], relative to [petitioner's] liberty and due process interests, by inviting it to clarify its ambiguous ruling." No. 94-8988, at 3. Vacating for ambiguity may be justifiable, as I have noted, when the ambiguity calls into question our very power to take and decide the case, see supra, at 5, and n. 2. But where that power is (as it is here) beyond doubt, it seems to me quite improper to vacate merely in order to get a better idea of whether the case is "worth" granting full review. If this is appropriate with respect to court of appeals' summary dispositions of criminal cases, I see no reason why it is not appropriate with respect to criminal dispositions accompanied by opinions as well. Or, forthat matter, why it is not appropriate for civil cases. "GVR'd for clarification of _____" should become a common form of order, drastically altering the role of this Court. In my view we have no power to make such a tutelary remand, as to a schoolboy made to do his homework again. [n.4] The Court insists that declining to remand for clarification would risk "immunizing summary dispositions . . . from our review," No. 94-8988, at 3. That is not so. It is fully within our power to review this case, and any other case summarily decided below, by granting certiorari and proceeding to consider the merits; or indeed, where the circumstances warrant, to summarily reverse. Cf. Hellman, "Granted, Vacated, and Remanded"--Shedding Light on a Dark Corner of Supreme Court Practice, 67 Judicature 389, 391-392 (1984) (noting that in the 1970's as the Court's "GVR" practice "increased far beyond what it had been in earlier years," its use of summary reversal based on intervening precedents decreased dramatically).

In No. 94-9323, the Court again "GVRs" because the Government has changed a legal position: the Commissioner of Social Security informs us that she now agrees with petitioner on a preliminary point of law that the Court of Appeals found in the Government's favor. And here again, respondent does not concede that the judgment below was in error, for she "ha[s] not . . . reached a firm conclusion" as to her position on the subsequent point of law that will (if her recantation on the preliminary point is accepted) control the outcome of the case. Brief for Respondent in No. 94-9323, p. 13. [n.5] There is, however, a special factor in this second case: respondent is an agency head, whose view on the legal point in question is in some circumstances entitled to deference, see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). If it were clear that respondent's change in position were entitled to deference, I would have no problem with the "GVR"; the new position would then constitute an intervening postjudgment factor whose effect the Court of Appeals should be allowed to consider. But even if we allow deference to an agency view first expressed in pending litigation (as some think we should not, see Anthony, Which Agency Interpretations Should Bind Citizens and the Courts?, 7 Yale J. Reg. 1, 60-61 (1990); cf. Merrill, Judicial Deference to Executive Precedent, 101 Yale L. J. 969, 1023 (1992)), surely a decent concern for those litigating against the Government and for our lower court judges should induce us to disregard, for Chevron purposes, a litigating position first expressed at the certiorari stage. The United States is the most frequent, and hence the most calculating, of our litigants. If we accord deference in the circumstances here, we can expect the Government to take full advantage of the opportunity to wash out, on certiorari, disadvantageous positions it has embraced below; and we can expect it to focus less of its energy upon getting its position "right" in the Courts of Appeals.

The Court, however, thinks it unnecessary to decide the deference question. It is enough, as the Court sees it, that its summary review has led it to "believe that [the] agency interpretation is reasonably probably entitled to deference and potentially determinative." No. 94-9323, at 9. I do not agree. It seems to me our "intervening event GVRs" should not be extended to the situation where (1) the intervening event consists of aparty's going back on what it argued to the court of appeals, and (2) it is not even certain that the change in position is legally cognizable. That seems to me to accord inadequate respect to the work of our colleagues below. Moreover, it is not clear to me that the question before us (should an agency change of position at the certiorari stage be accorded deference?) can even be reached by the Court of Appeals. Surely we do not expect the Court of Appeals to declare our vacation and remand invalid. Thus, the Court of Appeals will have before it the somewhat different question whether the agency change of position before it is entitled to deference. I suppose it may conclude that, since a change of position on certiorari is not entitled to deference, a change of position on a remand triggered by change of position on certiorari is not entitled to deference--but that would assuredly be a convoluted holding. The question of what is permissible on certiorari seems to me peculiarly within the domain of this Court. Since we are in doubt on the deference point in the present case, we should either deny the petition, or grant it and have the deference point argued.

The Court's failure to comprehend why it should make any difference that the Government's changed litigating position may not be entitled to deference, see No. 94-9323, at 9, displays a lamentable lack of appreciation of the concept of adding insult to injury. It is disrespectful enough of a lower court to set its considered judgment aside because the Government has altered the playing field on appeal; it is downright insulting to do so when the Government's bait and switch performance has not for a certainty altered any factor relevant to the decision. In that situation, at least, we should let the Government live with the consequences of its fickleness or inattention. The Court claims that it would "defeat the purpose of GVR'ing" to determine the deference issue on the merits, since that issue is "based on a circumstance . . . that will not be present in any other case brought under the statute at issue." Ibid. That is trueenough (barring the unlikely event that the Government in a later case under this very statute again switches its position at the certiorari stage). But the issue of whether Chevron deference should be accorded to a certiorari stage switch of litigating position is not at all unique to the individual case or bound up with the underlying statute. It always arises, of course, in an individual case involving a particular statute, as do most questions of law. But the issue itself is thoroughly generalizable, and of general importance. In any event, I do not urge that we determine the deference issue on the merits; my vote in these cases is to deny the petitions. Finally, I must remark upon the Court's assertion that we issued "just such a GVR order last Term, without recorded dissent," No. 94-9323, at 10, citing Schmidt v. Espy, 513 U. S. ___ (1994): It is not customary, but quite rare, to record dissents from grants of certiorari, including "GVRs." It would be wrong to conclude from the unsigned order in Schmidt that the vote to "GVR" was unanimous, or even close to unanimous. Thus, Schmidt does not demonstrate that bait and switch deference "GVRs" are an accepted practice; but the fact that Schmidt was apparently the first ever such "GVR," combined with the fact that the Government is back one Term later for another helping, demonstrates the accuracy of my prediction that the Solicitor General will be quick to take advantage of this new indulgence.

What is more momentous than the Court's judgments in the particular cases before us--each of which extends our prior practice just a little bit--is its expansive expression of the authority that supports those judgments. It acknowledges, to begin with, no constitutional limitation on our power to vacate lower court orders properly brought before us. No. 94-9323, at 3. This presumably means that the constitutional grant of "appellate Jurisdiction" over "Cases . . . arising under [the] Constitution [and] Laws of the United States," Art. III, §2, empowers the Court to vacate a state supremecourt judgment, and remand the case, because it finds the opinion, though arguably correct, incomplete and unworkmanlike; or because it observes that there has been a postjudgment change in the personnel of the state supreme court, and wishes to give the new state justices a shot at the case. I think that is not so. When the Constitution divides our jurisdiction into "original Jurisdiction" and "appellate Jurisdiction," I think it conveys, with respect to the latter, the traditional accoutrements of appellate power. There doubtless is room for some innovation, particularly such as may be necessary to adapt to a novel system of federalism; but the innovation cannot be limitless without altering the nature of the power conferred.

Not only does the Court reject any constitutional limitation upon its power to vacate; it is unwilling to submit to any prudential constraint as well. Even while acknowledging the potential for "unfair[ness] or manipulat[ion]" and professing to agree that "our GVR power should be exercised sparingly," No. 94-9323, at 4, 10, the Court commits to no standard that will control that power, other than that cloak for all excesses, "the equities," id., at 4; see id., at 10, 11-12; No. 94-8988, at 3. We may, as the Court now pronounces, set aside valid judgments not merely when they are wrong, not merely when intervening events require that someone (either the lower court or we) reconsider them on new facts or under new legal criteria, not merely when it is ambiguous whether we have power to review them, not merely when the United States concedes that the judgment below (or one of the points of law relied upon below, or even one of the points of law possibly relied upon below) is wrong; but whenever there is "a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration." No. 94-9323, at 4. The power to "revis[e] and correc[t]" for error, Marbury v. Madison, 1 Cranch 137, 175 (1803), has become a power to void for suspicion. Comparing themodest origins of the Court's "no fault V&R" policy with today's expansive dénouement should make even the most Pollyannish reformer believe in camel's noses, wedges, and slippery slopes.

The Court justifies its approach on the ground that it "alleviates the potential for unequal treatment that is inherent in our inability to grant plenary review of all pending cases raising similar issues." No. 94-9323, at 4 (internal quotation marks omitted). I do not see how it can promote equal treatment to announce a practice that we cannot possibly pursue in every case. If we were to plumb the "equities" and ponder the "errors" for all the petitions that come before us--if we were to conduct, for example, in all cases involving summary decisions, today's balancing of the "burden" to the Court of Appeals against the litigant's "interests" in having clarification of the ruling, see No. 94-8988, at 3, or today's calculation of "the overall probabilities and equities," No. 94-9323, at 10--we would have no time left for the cases we grant to consider on the merits. Of course we do not purport to conduct such inquiries, not even the basic one of whether the decision below is probably in "error"--which is why we insist that our denial of certiorari does not suggest a view on the merits, see, e.g., Teague v. Lane, 489 U.S. 288, 296 (1989); Singleton v. Commissioner, 439 U.S. 942 (1978) (Stevens, J., respecting the denial of the petition for writ of certiorari). Moreover, even if we tried applying the Court's "totality of the circumstances" evaluation to all the petitions coming before us, we would be unlikely to achieve equal treatment. Such a plastic criterion is liable to produce inconsistent results in any series of decisions; it is virtually guaranteed to do so in a series of decisions made without benefit of adversary presentation (whether we should "GVR" is rarely briefed, much less argued--as it has not been here) and announced without accompaniment of a judicial opinion (we almost never give reasons as the Court has done today). The need to afford equal treatment argues precisely againstthe "totality of the circumstances" approach embraced by the Court, and in favor of a more modest but standardized "GVR" practice.

Henceforth, I shall vote for an order granting certiorari, vacating the judgment below without determination of the merits, and remanding for further consideration, only (1) where an intervening factor has arisen that has a legal bearing upon the decision, (2) where, in a context not governed by Michigan v. Long, 463 U.S. 1032 (1983), clarification of the opinion below is needed to assure our jurisdiction, and (3) (in acknowledgment of established practice, though not necessarily in agreement with its validity) where the respondent or appellee confesses error in the judgment below. (I shall not necessarily note my dissent from "GVRs" where those conditions do not exist.) As I have discussed, neither of the present cases meets these standards. Accordingly, I respectfully dissent from today's orders and would deny both petitions.

Notes

1 I emphasize that what is at issue here is our power to set aside a valid judgment--not, as Justice Stevens' concurrence would have it, "our discretionary authority to manage our certiorari docket." Ante, at 1. We do the latter by accepting or declining review. But "[w]henever this Court grants certiorari and vacates a court of appeals judgment in order to allow that court to reconsider its decision . . . , the Court is acting on the merits." Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25-26 (1978) (Stevens, J., dissenting) (emphasis added). Thus, today's orders go far beyond what Justice Stevens now refers to as "administration of [our certiorari] docket." Ante, at 1.

2 In Michigan v. Long, 463 U.S. 1032 (1983), we largely supplanted this policy with the rule that state court decisions discussing federal law will be presumed to be based on federal law unless thecontrary is clear from the face of the opinion. Id., at 1037-1044; see also Arizona v. Evans, 514 U. S. ___, ___ ___ (1995) (reaffirming this approach). But cf. Capital Cities Media, Inc. v. Toole, 466 U.S. 378 (1984) (post Long decision vacating and remanding for clarification of state supreme court decision rendered withoutopinion).

3 The Court misdescribes my position when it states that I would limit "GVRs" "based on confessions of error that do not purport to concede the whole case" to "cases in which the confession of error concerns a `legal point on which the lower court explicitly relied.' " No. 94-9323, at 8 (quoting infra, at 9). Both the text above and the sentence immediately following the phrase that the Court quotes from my dissent, see infra, at 9, make my position clear. The line of distinction I would draw--and the one long established in our practice--is between a respondent's concession of error in the lower court's judgment and a respondent's concession of error that goes not to the judgment but merely to an aspect of the reasoning below or of respondent's argument below.

4 Netherland v. Tuggle, 515 U. S. ___ (1995), upon which the Court relies, see No. 94-9323, at 6-7, is not to the contrary. That was not a "no fault V&R," but a reversal of the lower court for abuse of discretion in its entry of a stay order.

5 Because the Commissioner is not prepared to say that she disagrees with petitioner as to the proper disposition of this case, it is questionable whether any case or controversy subsists. Quite apart from the other difficulties with the course the Court has chosen, itseems to me we should not permit the Commissioner to trouble the Fourth Circuit again until she makes up her mind on this issue.

* about us
* help
* © copyright

Instant replay of a BIpolar Texas Fare/fair Defense Act

2007-06-16T03:21:00.000-07:00

Send this document to a colleague Close This Window

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1100-06

JAMES THOMAS LAPOINTE, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S AND STATE'S

PETITIONS FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

WILLIAMSON COUNTY

Keller, P.J., delivered the unanimous opinion of the Court.

O P I N I O N

Does the rule requiring a "hearing" before determining whether to admit evidence of the alleged victim's past sexual history contemplate an adversarial proceeding? And if it does, and if the trial court fails to afford such a proceeding, may the appellate court order a retrospective hearing? We answer both of these questions "yes," and finding that the trial court conducted the retrospective hearing properly, we affirm the judgment of the court of appeals.

I. BACKGROUND

Appellant was convicted of a variety of offenses committed against his estranged wife: one count of aggravated kidnapping, one count of assault family violence (second offense), and three counts of aggravated sexual assault. At trial, defense counsel sought to cross-examine the victim regarding her prior sexual history for the purpose of "exploring a bias or motive for testifying." Defense counsel told the trial judge that he believed the victim had "engaged in sex with multiple partners at various times." The State objected on the basis of Texas Rule of Evidence 412. The trial judge decided to address the admissibility issue in an in camera hearing where only the judge and the victim were present. The judge specifically declined to allow defense counsel to question the witness for the purpose of making a bill of exception, but the trial judge did offer to ask the victim any questions the defense wished to submit.

After the prosecution's direct examination of Nurse Kathleen Gann, the defense sought to cross-examine her on the victim's prior sexual history. Again, the trial judge refused to permit defense questioning of the witness for the purpose of creating a bill of exception. Instead, the trial judge adhered to the same procedure used with the victim: defense counsel submitted questions and the hearing was held with only the trial judge and the witness being present. Defense counsel requested that the trial judge inquire about "deep vaginal bruising" and whether this bruising was consistent with the use of "sex toys" and whether the victim had a history of sex-toy use with the defendant. When asked for clarification, defense counsel said he specifically wanted to know if the victim engaged in sex with a particular person and "used an object that was deeply plunging" into her sex organ.

Defense counsel was permitted to make a bill of exception regarding certain other matters with some relevance to this discussion. A portion of a medical report was read into the record, and later the entire report was submitted as an exhibit. The report indicated that the victim suffered from bipolar disorder and had a problem with alcohol.

Appellant complained on appeal that the trial court erred in excluding defense counsel from the in camera hearings. The court of appeals agreed, holding that the trial court's procedure violated both Rule 412 and the Confrontation Clause of the United States Constitution, and deprived appellant of his constitutional right to the effective assistance of counsel. (1) Concluding that the trial court's errors "prevented the development of a record on which [the court] might determine that the error was harmless beyond a reasonable doubt," the court of appeals reversed the trial court's judgment and remanded the case for a new trial. (2)

After the State filed a motion for rehearing, the court of appeals withdrew this opinion and substituted a new opinion. (3) In the new opinion, the court of appeals altered the remedy, choosing instead to abate the appeal and remand the case for a retrospective in camera hearing that permitted the presence of the parties and the questioning of the witnesses by the parties' attorneys. (4)

On the day the hearing was scheduled by the trial court, appellant requested a continuance to prepare. The trial court granted a continuance as to the victim but denied the continuance with respect to the nurse because she currently lived out-of-state and the prosecution had produced her for the hearing. Defense counsel was able to question Nurse Gann about any knowledge she had acquired about the victim's past sexual history, but the trial judge prohibited certain questions that he perceived had nothing to do with Rule 412. These latter, prohibited questions included asking (1) whether the victim took a certain medication prescribed for bipolar disorder, (2) the symptoms of bipolar disorder, including sexual activity, (3) whether the victim ever conveyed that she had been suicidal, and (4) whether the victim mentioned any custody issues regarding her son.

At the continued hearing, defense counsel was given wide latitude in cross-examining the victim. The trial judge overruled all but two of the prosecutor's objections. In the first sustained objection, the trial judge prohibited defense counsel from having the victim read from a medical report that had been entered as an exhibit because the judge believed that the exhibit spoke for itself. The second sustained objection was to questions relating to the victim's alcohol use. (5)

After cross-examining the victim, defense counsel requested that Gann be recalled as a rebuttal witness. The trial judge initially denied the request, but he amended the ruling to allow defense counsel to submit proposed questions that the trial judge would review to determine whether to go through the time and expense of recalling the out-of-state witness. No questions were ever submitted.

When the court of appeals received the case back on appeal, appellant advanced several arguments relating to the retrospective hearing. He argued that the trial court had no jurisdiction to conduct the hearing because a petition for discretionary review was pending in this Court, that the trial court erred in prohibiting some of defense counsel's questions, and that the trial court erred in refusing to allow defense counsel to recall Nurse Gann. (6) The court of appeals rejected all of these claims. It held that the petition for discretionary review was not proper because the abatement order was interlocutory, that the trial court properly limited the hearing to the victim's past sexual history, and that appellant failed to preserve for review any issue with regard to recalling the nurse. This last claim was rejected because appellant failed to submit any questions and because his original motion for continuance did not specify "what records he was seeking, how those records would be useful, or whether he could have obtained those records for the subsequent hearing" involving the victim. (7) After this discussion, the court of appeals concluded that the trial court's error in excluding the defendant and his counsel from the in camera hearings at trial was cured by the two-part retrospective hearing. (8) Addressing the merits of the Rule 412 issue, the court of appeals held that appellant failed to elicit any admissible evidence at the retrospective hearing. (9) Addressing and rejecting appellant's other points of error, the court of appeals then affirmed the conviction. (10)

Both parties petitioned for discretionary review. We granted appellant's first and third grounds for review and all four of the State's grounds. In his first ground, appellant claims that a retrospective hearing was not a proper remedy for the trial court's error in refusing to conduct a proper in camera hearing at trial. In his third ground, he claims that the trial judge did not conduct the retrospective hearing properly, because some questions were disallowed and because he was neither granted a continuance with respect to the nurse nor permitted to recall her at the second part of the hearing. (11) In its first two grounds for review, the State complains that the court of appeals failed to address its arguments that appellant failed to preserve any constitutional claim at trial. In its third and fourth grounds, the State contends that the court of appeals erred in holding that Rule 412 requires that the parties be present and that counsel be permitted to question the witnesses.

II. ANALYSIS

A. Rule 412's in camera hearing

Rule 412(c), which sets forth the procedures for determining the admissibility of evidence of prior sexual history, provides:

Procedure for Offering Evidence. If the defendant proposes to introduce any documentary evidence or to ask any question, either by direct examination or cross-examination of any witness, concerning specific instances of the alleged victim's past sexual behavior, the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under paragraph (b) of this rule. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury. (12)

The court of appeals's interpretation of Rule 412 is based, in part, on the language of its federal counterpart. (13) The court of appeals observed that the federal rule explicitly confers on the parties a right to participate in the in camera hearing and reasoned that the same was true of the Texas rule because the state rules of evidence are patterned after the federal rules. (14) The State points out that, unlike the federal rule, the state rule contains no explicit direction to include the parties in the in camera hearing and argues that the textual difference between the federal and state rules calls for a divergent interpretation.

But both arguments flow from a faulty premise: the assumption that Texas's Rule 412 was patterned after its federal counterpart. Federal Rule 412 was not a part of the Federal Rules of Evidence when those rules were first enacted. Rather, it was added by Congress in 1978. (15) Texas had enacted its own "rape shield" statute three years earlier, in 1975. (16) That statute included what was clearly the precursor to Rule 412(c), with nearly identical wording. (17) Because Rule 412(c) was not patterned after its federal counterpart, a comparison of the wording is, at best, of limited value.

The difference between the federal and state rules aside, the State contends that the absence of explicit direction in the Texas rule to include the parties in the in camera hearing is significant. The State observes contrasting language in Texas Rule of Evidence 508 that requires the parties to be excluded from an in camera proceeding. (18) The court of appeals cited this provision in support of its holding, (19) and indeed, it could be argued that, if this Court wished to exclude the parties from a Rule 412 in camera hearing, we could have explicitly said so. The State contends, however, that Rule 412's silence indicates an intent to confer discretion upon the trial court in determining whether to admit the parties to the hearing while Rule 508 mandates that the parties be excluded. But there is another difference between Rule 412 and Rule 508: the in camera procedure in Rule 412 is referred to as a "hearing." Hearings are ordinarily adversarial. There are many situations in which an in camera procedure is clearly intended to take place without the parties, but typically that procedure is referred to as an in camera "inspection," "review," "showing," "determination" or, in the case of Rule 508, "disclosure." (20) Rule 412 aside, other situations in which the in camera procedure is specified as a "hearing" appear to contemplate the attendance of the parties. (21) And in the child-custody arena, one statute explicitly grants the trial judge discretion to determine whether to allow a party in an "in chambers" interview with the child. (22) In view of these things, we do not find the State's contention regarding Rule 412's language to be particularly persuasive.

What we do find persuasive, however, is this Court's interpretation of the precursor statute, §21.13. In Allen v. State, we upheld the constitutionality of this provision against a Confrontation Clause challenge. (23) In doing so, we discussed a North Carolina decision, State v. Fortney, which upheld its own rape-shield provision. (24) We quoted extensively from the Fortney opinion's language, which included a statement that past sexual history could be litigated at "an in camera hearing where opposing counsel may present evidence, cross-examine witnesses, and generally attempt to discern the relevance of proffered testimony in the crucible of an adversarial proceeding away from the jury." (25) We commented that, while the North Carolina statute "is not totally like §21.13, it is similar in many respects and the language in Fortney is here instructive." (26) After discussing Fortney, we further stressed the importance of balancing the victim's privacy interests with the confrontation right of the defendant by having the trial court hold a hearing that gives the defendant the opportunity to demonstrate the admissibility of the evidence:

The constitutional right to confront adverse witnesses is fundamental and is of such importance that a State's interest in protecting a certain class of witnesses from embarrassment must fall before the right of confrontation and cross-examination. Thus a statute that purports to prohibit completely the introduction of the victim's consensual sexual activity with persons other than the defendant is unconstitutional unless given a judicial gloss requiring a hearing out of the jury's presence so that the defendant, upon motion, may be given an opportunity to demonstrate that due process requires the admission of such evidence because probative value in the context of that particular case outweighs its prejudicial effect on the prosecutrix. (27)

In making these comments, we cited the New Hampshire case of State v. Howard. (28) A review of Howard reveals that our comments were a close paraphrase of the language in that case. (29) The Howard opinion went on to more fully describe the procedure to be followed. (30) The Supreme Court of New Hampshire explained that the victim's right to privacy was protected "at least to the extent that hearings held on the admissibility of the victim's prior sexual activity may, upon request of the victim and in the exercise of sound discretion by the trial justice, be closed to those not party to the proceeding. Such pretrial procedures enable the court to balance and safeguard the rights of all the parties as applied to the facts of a particular case and avoid unnecessary prejudice to either the victim or the accused." (31) From the comments in Allen, and its reliance on Fortney and Howard, we conclude that the Allen decision construed §21.13 narrowly to avoid a constitutional violation and that, under this narrowing construction, the trial court was empowered to exclude spectators, but not the parties, from the in camera admissibility hearing. (32)

Because Rule 412 essentially lifted the pertinent language from §21.13, Allen's interpretation of the statute logically applies to the rule as well. Moreover, Allen was decided just two weeks before the adoption of the Texas Rules of Criminal Evidence, of which Rule 412 was a part, and the Court even mentioned the proposed rules elsewhere in the opinion. (33) Given those circumstances, we believe this result was likely the Court's intent in patterning Rule 412(c) on the statutory language. (34)

The State also argues that the policy interest behind Rule 412 of protecting the victim's privacy requires interpreting the rule to allow the trial court to exclude the defendant and his attorney from the hearing. But, as we recognized in Allen, the victim's privacy interest must be balanced against the defendant's right to confrontation. Rule 412 balances those interests by closing the hearing to spectators, so that only a minimum number of people - the witness, the parties and their attorneys, the judge, and the court reporter - are privy to the information revealed.

We conclude that the in camera proceeding contemplated by Rule 412 is an adversarial hearing at which the parties are present and the attorneys are permitted to question witnesses. We overrule the State's third and fourth grounds for review. Given our disposition of those grounds, we need not reach the State's first two grounds relating to the preservation of constitutional error, and those are dismissed.

B. The proper remedy

Texas Rule of Appellate Procedure 44.4 provides:

Remediable Error of the Trial Court.

(a) Generally. A court of appeals must not affirm or reverse a judgment or dismiss an appeal if:

(1) the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals; and

(2) the trial court can correct its action or failure to act.

(b) Court of appeals direction if error remediable. If the circumstances described in (a) exist, the court of appeals must direct the trial court to correct the error. The court of appeals will then proceed as if the erroneous action or failure to act had not occurred. (35)

Under this rule, if a trial court's error prevents the proper presentation of the case to the appellate court and that error can be remedied (without requiring an entire new trial or new punishment hearing), then the appellate court must direct the trial court to remedy the error so that the appellate court will be in a position to evaluate the appeal properly. We have applied this rule to a trial court's refusal to permit a defendant to make an offer of proof, (36) a trial court's failure to conduct a proper Batson hearing, (37) and a trial court's failure to make findings of fact that it was required by law to make. (38)

Appellant attempts to distinguish his case from those cases by claiming that the present case involves the denial of counsel at a critical stage of trial. In making this claim, he relies upon several cases that hold that the complete denial of counsel at a critical stage of trial results in a presumption of prejudice. (39) We need not address whether the trial court's conduct in the present case constituted the "complete denial of counsel at a critical stage of the proceedings," however, because the principle appellant recites is simply inapplicable. There is a difference between saying that the prejudice suffered warrants some sort of remedy and saying what kind of remedy must be afforded. For example, a complete denial of counsel that occurs only at the punishment proceedings would be presumed prejudicial, but that presumption does not mean the defendant would be entitled to an entire new trial (i.e. on both guilt and punishment). Because the scope of the prejudice was clearly limited to the punishment phase, the defendant in this hypothetical would be entitled only to a new punishment hearing. Likewise, when the trial court errs in refusing to permit the defendant to fully litigate the admissibility of a particular type of evidence, the scope of the prejudice flowing from such an error is limited. That the defendant was denied the ability to properly litigate admissibility does not mean that the trial court's admissibility determination was incorrect. What it does mean is that the appellate court may not be able to intelligently determine the correctness of the trial court's admissibility determination. The solution, then, is to afford the defendant the opportunity to perfect the record, which then enables the appellate court to review the admissibility issue properly.

Appellant also relies upon state cases that hold that the supplementation rules cannot be used to replay a hearing or to create a record that was never made. (40) He contends that Hutchinson stands for the proposition that a party cannot "replay" a hearing that was already held in order to "fix" the hearing. He further cites that Ramirez, Solomon, and Berry for the proposition that an appellate court cannot use the rules of appellate procedure to create a new record.

Appellant fails to appreciate the difference between the pertinent provisions in Rule 34, which relate to supplementation, and those in Rule 44, which provide a remedy for error. Appellant is correct that the supplementation rules, Rules 34.5(c) and 34.6(d), cannot be used to create a new record. (41) Those rules exist to allow appellate courts to supplement the appellate record with matters that were part of the trial record but, for whatever reason, have not been forwarded to the appellate court. (42) Rule 44.4, by contrast, is designed to effect the creation of a new record. When a trial court has erroneously withheld information necessary to evaluate a defendant's claim on appeal (e.g. failure to file required findings of fact) or has prevented the defendant from submitting information necessary to evaluate his claim (e.g. refusing to permit an offer of proof), the appellate court is directed to step in and order the trial court to correct the situation. The key to Rule 44.4 is that there must be an error that the appellate court can correct. (43) And if the error in question is subject to the usual rules of procedural default, then it must have been preserved by objection. (44) The supplementation rules found in Rule 34 do not require any showing of error, but that is because their purpose is much more limited than the remedial function of Rule 44.4.

Appellant reads the state "supplementation" cases too broadly. All of the cases upon which he relies trace their lineage to Berry. (45) But that case recognized the distinction between correcting an error and trying to inject matters into the record where no error was present. With regard to findings of fact, we explained that an appellate court can order a trial court to make findings of fact when the law imposes an affirmative duty to do so, but an appellate court cannot order such findings when there is no legal requirement. (46) Berry in turn relied upon Williams. (47) In Williams, this Court expressly added a caveat to its holding that the supplementation rules cannot be used to create a new record (involving in that case the court reporter's failure to record certain proceedings):

The foregoing discussion does not mean that a defendant can never obtain relief if the court reporter fails to record certain proceedings. But, to preserve error on such a claim, a defendant must object before the trial court to the court reporter's failure to do so. (48)

In other words, the defendant must show error upon which an appellate court can act, which error can then be remedied by an order under Rule 44.4. (49)

Here, the court of appeals determined that appellant was deprived of his right to participate in the rule 412 hearing. The purpose of allowing defense participation in the hearing is to give the defendant the opportunity to substantiate his claim that the victim's prior sexual history is admissible. The proper remedy was to abate the appeal and remand the case to the trial court to afford the defendant an adversarial hearing in which he would have an opportunity to make that showing. Once that was done, the appellate court would then be in a position to intelligently review the issue of whether the prior sexual history evidence was admissible. The court of appeals followed this procedure in the present case, and it was entirely correct in doing so. Appellant's first ground for review is overruled.

C. The hearing

Finally, we address appellant's contention regarding how the hearing was conducted. Defense counsel's questions regarding child custody, the victim's alcohol use, and whether the victim was taking medication for bipolar disorder were not inquiries into the victim's past sexual history and did not fall within the trial court's order at trial prohibiting questioning by defense counsel. Indeed, some evidence relating to these topics was elicited in front of the jury or in an offer of proof. Those questions therefore fell outside the scope of the court of appeals's remand order, and the trial court did not err to exclude them. Nor do we see any error in refusing to permit the victim to read from documents that had already been included in the record. That leaves counsel's attempt to question Nurse Gann regarding any link between bipolar disorder and sexual activity. It is not clear that such a question falls within the scope of Rule 412. Assuming arguendo that it does, appellant failed to preserve error with regard to that topic. Appellant never told the trial court at trial that he wished to ask Nurse Gann such a question, and it at least seems questionable whether she would even be qualified to give an answer. (50) Finally, we agree with the court of appeals that appellant failed to preserve any claim with regard to the request for continuance and the request to recall Nurse Gann because appellant failed to submit his proposed questions. (51) We overrule appellant's third ground for review.

III. CONCLUSION

We hold that the in camera hearing required by Rule 412 is an adversarial hearing where the parties are present and the attorneys are afforded the opportunity to question witnesses and present evidence. We further hold that the remedy for a trial court's failure to follow this requirement is to abate the appeal and remand the case to the trial court to conduct (retrospectively) a proper hearing. Finally, we hold that the trial court conducted a proper hearing on remand. Consequently, we affirm the judgment of the court of appeals.

Delivered: April 25, 2007

Publish

1. LaPointe v. State, No. 03-03-00460-CR, slip op. at 8-20 (Tex. App.-Austin, Mar. 17, 2005).

2. Id. at 21-22, 22 n.16. The court of appeals' disposition, "proceedings consistent with this opinion" is a little unclear, but the footnote suggests that the court of appeals meant by this a new trial. See id.

3. LaPointe v. State, 166 S.W.3d 287, 289 (Tex. App.-Austin 2005, pet. dism'd).

4. Id. at 300-301.

5. Although not relevant to our disposition, we observe that the trial judge's rulings appeared to be even-handed. Several times the judge sustained defense objections to the prosecutor's questions, including an attempt by the prosecutor to elicit information about appellant's prior sexual history.

6. LaPointe v. State, 196 S.W.2d 831, 834-835 (Tex. Crim. App. 2006).

7. Id.

8. Id. at 836.

9. Id. at 836-837. The correctness of the court of appeals's ultimate holding with regard to the admissibility of the evidence is not before us.

10. Id. at 837-839.

11. Appellant's second ground, which we refused, contended that appellant's pending petition for discretionary review (later dismissed) deprived the trial court of jurisdiction to proceed with the retrospective hearing.

12. Tex. R. Evid. 412(c)(bold in original, italics added).

13. LaPointe, 166 S.W.3d at 293-294.

14. Id. (citing Fed. R. Evid. 412(c)(2)("At such hearing the parties may call witnesses, including the alleged victim, and offer relevant evidence")).

15. P.L. 95-540, §2(a), Oct. 28, 1978, 92 Stat. 2046.

16. Former Tex. Pen. Code §21.13; Acts 1975, 64th Leg., ch. 203, §3.

17. Former §21.13(b). Other than minor, nonsubstantive variations in wording, the only difference between the modern Texas rule and its predecessor appears to be that the modern rule embraces "documentary evidence" in addition to testimony.

18. Tex. R. Evid. 508(c)(3).

19. LaPointe, 166 S.W.2d at 294.

20. See Tex. Civ. Prac. & Rem. Code §154.073(e)("determine")(confidentiality of certain records and communications); Tex. Fam. Code §261.201(b)(3)("review")(confidentiality and disclosure of information); Tex. Fin. Code §59.006(d)("inspection")(discovery of customer records at a financial institution); Tex. Gov't Code §414.008(c)("inspection")(crime stoppers tips); Tex. Health & Safety Code §773.092(d)("determination")(confidential medical information); Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986)("inspection," "review")(documents allegedly protected by attorney-client or work product privilege); Rule 508(c)(3).

21. Tex. Civ. Prac. & Rem. Code § 172.112 ("hearing," "meeting")(arbitration); Tex. Hum. Res. Code §36.107(c)("hearing")(settlement with defendant in a medicaid fraud suit).

22. Tex. Fam. Code §153.009(e)(court "may" permit party to be present). See also In re Chu, 134 S.W.3d 459, 467 (Tex. App.-Waco 2004)(referring to an "in camera" interview with the child); Patterson v. Brist, 2006 Tex. App. LEXIS 9281, *1 (Tex. App.-Houston [1st Dist.] 2006, pet. for review filed)(same).

23. 700 S.W.2d 924, 932 (Tex. Crim. App. 1985.)

24. Id. at 930-931.

25. Id. at 931 (quoting State v. Fortney, 301 N.C. 31, 269 S.E.2d 110 (N.C. 1980)).

26. Id.

27. Id. at 932.

28. Id.

29. See Howard, 121 N.H. 53, 58-59, 426 A.2d 457, 460-461 (1981).

30. Id. at 59, 426 A.2d at 461.

31. Id. (emphasis added).

32. The State criticizes Allen's reliance upon Fortney on the ground that the North Carolina statute explicitly provided the right to an adversarial in camera hearing. But the State does not address Allen's reliance upon Howard, a case decided under a statute that made no reference to a hearing at all. See Howard, 121 N.H. at 57, 426 A.2d at 459 (quoting RSA 632A:6). As the above discussion shows, the Allen court seemed to be aware that there were differences between the statutes in North Carolina and Texas but was drawing upon general principles in fashioning what it considered to be an appropriate narrowing construction for the Texas provision.

33. Allen was decided on December 4, 1985, and the Rules of Criminal Evidence were adopted on December 18, 1985. For citation to proposed Rule 412, see 700 S.W.2d at 928 n.3, 930 n.5.

34. §21.13 was later renumbered to §22.065. Acts 1983, 68th Leg., p. 5315, ch. 977, § 4. Pursuant to legislative authorization, §22.065 was repealed by the Texas Rules of Criminal Evidence. Acts 1985, 69th Leg., ch. 685, §9(b); former Tex. Rev. Civ. Stat. art. 1811f, §9(b)(1). Under the repealer statute, this Court was authorized to create a rule that differed from the statutory provision. State v. Hardy, 963 S.W.2d 516, 520-523 (Tex. Crim. App. 1997).

35. Tex. R. App. P. 44.4.

36. Spence v. State, 758 S.W.2d 597, 599-600 (Tex. Crim. App. 1988).

37. See Hutchinson v. State, 86 S.W.3d 636, 638 n. 1 (Tex. Crim. App. 2002)(citing cases).

38. See id. (citing cases).

39. See e.g. United States v. Cronic, 466 U.S. 648, 659 (1984); Strickland v. Washington, 466 U.S. 668, 692(1984).

40. Ramirez v. State, 104 S.W.3d 549 (Tex. Crim. App. 2003); Hutchinson, 86 S.W.3d 636; Solomon v. State, 49 S.W.3d 356 (Tex. Crim. App. 2001); Berry v. State, 995 S.W.2d 699 (Tex. Crim. App. 1999).

41. Ramirez, 104 S.W.3d at 550 (citing Berry); Solomon, 49 S.W.3d at 365 (citing Berry); Berry, 995 S.W.2d at 702 and 702 n. 5 (citing Williams v. State, 937 S.W.2d 479, 487 (Tex. Crim. App. 1996)).

42. Berry, 995 S.W.2d at 702 n. 5.

43. See id. at 701-702.

44. See Williams, 937 S.W.2d at 487. Of course, any failure to preserve error would be held against the appealing party and would likely be fatal to his entire claim.

45. Hutchinson, 86 S.W.3d at 637; cases cited in footnote 41.

46. Berry, 995 S.W.2d at 701-702. Although Berry refers to requiring findings as an action that may be authorized by Rule 34.5(c)(2), we note that that subsection refers only to the clerk's duty to forward findings that are required by law: "
If the appellate court . . .orders the trial court to prepare and file findings of fact and conclusions of law as required by law . . . the trial court clerk must prepare, certify, and file in the appellate court a supplemental clerk's record containing those findings and conclusions." Rule 34.5(c)(2). The source of the appellate court's authority to order the findings is Rule 44.4.

47. See footnote 41.

48. 937 S.W.2d at 487.

49. Thus, we disagree with appellant's contention that Hutchinson stands for the proposition that a party cannot "replay" a hearing that was already held in order to "fix" the hearing. In Hutchinson, the defendant made a prima face case of discrimination as to five veniremembers, but a Batson hearing was held on only four of them. 86 S.W.3d at 639. A "replay" of the hearing with regard to the first four veniremembers was improper, not because "replays" are invariably improper, but because there was no showing that there was any error - with regard to those four veniremembers - in the conduct of the original hearing.

50. The record shows that appellant was well aware at trial of the victim's bipolar disorder and her alleged involvement with "multiple sex partners." So he cannot claim that the proffered question resulted from unexpected developments at the retrospective hearing.

51. Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.2.

Google Yourself Corpus Christi: When Carlos Valdez Confesses Error Does Not The Same Rule Apply?

2007-06-08T05:25:00.000-07:00

Google Yourself Corpus Christi: When Carlos Valdez Confesses Error Does Not The Same Rule Apply?

First, in seeking the death penalty, prosecutors sometimes overlook glaring illegalities.

"courts, especially state courts, are too often willing to overlook even obvious constitutional flaws when reviewing death penalty cases."

And if they are "willing to overlook even obvious constitutional flaws and glaring illegalities when Prosecuting & reviewing death penalty cases."

WATT about all of the other cases?

How many "overlooks" of "constitutional flaws" or "glaring illegalities" have become tools of Cheating Prosecutors who have forgotten "Prosecutors, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.

How many Prosecutors deliberately commit the error of failing to file a reply brief in an Appeal Process because it deprives the appellant of exculpatory testimony, evidence, and confessions of error or witness tampering by the State Prosecuting Attorney?

----
CONFESSING ERROR
By EDWARD LAZARUS
----

Friday, Jun. 16, 2000

Earlier this month, Vincent Saldano, one of the 468 inmates on Texas' death row, had his death sentence vacated. This development was duly reported in the press. But accounts of Saldano's good fortune uniformly failed to appreciate what makes his reprieve truly newsworthy and potentially a landmark.

Saving Saldano: Texas Confesses Error

Saldano was not freed from the prospect of execution by the actions of a court or even, as occasionally happens, by the clemency of a governor. His death sentence was erased because Texas, through its newly created office of the solicitor general, "confessed error" in his case -- that is, it admitted, despite defeating Saldano's initial appeals in court, that his death sentence was illegally obtained. Quite simply, this never happens, either in Texas or in the dozens of other states with active death penalty laws. It is thus worth pausing to consider the value and potential implications of Saldano's case as well as the notion of confessing error.

Saldano had received a death sentence in part due to profoundly troubling testimony by a state expert witness at the sentencing phase of his trial. The expert, a clinical psychologist named Walter Quijano, suggested that Saldano should be executed because, as an Hispanic, he posed a special risk of future dangerousness to society. To support this astonishing conclusion, the expert pointed out that Hispanics make up a disproportionately large amount of Texas' prison population.

It does not take a tenured professor of constitutional law to realize that linking racial identity with a propensity for violence was not only bizarre but also a violation of the equal protection clause. Indeed, that it should take a confession of error by the state to correct this problem highlights at least two problems in the current administration of the death penalty. First, in seeking the death penalty, prosecutors sometimes overlook glaring illegalities. The same flaw identified in Saldano's case infects at least seven other Texas capital cases. Second (and perhaps even more distressing), courts, especially state courts, are too often willing to overlook even obvious constitutional flaws when reviewing death penalty cases. After all, before the state's confession of error, Saldano had lost all of his appeals.

Under these circumstances, one might think that confessions of error would be, if not commonplace, at least occasional. On average, the Solicitor General of the United States confesses error in two or three criminal cases every year -- even though it is a safe bet that federal prosecutions, conducted by better trained lawyers with greater supervision, are less likely to contain obvious legal errors than their state counterparts. As the Supreme Court recognized when endorsing the practice in 1942, "the public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error, when, in their opinion, a miscarriage of justice may result from their remaining silent." But as a practical matter, states never confess error in death penalty cases (even though courts overturn roughly two-thirds of all death sentences as legally infirm) -- and some states candidly admit that their policy is never to confess error.

Mutual Distrust

Why? One crucial and usually overlooked factor is the deep antagonism that has grown up over time between state death penalty prosecutors and the death penalty abolitionist lawyers who seek to foil them in every case. The abolitionists, prosecutors know all too well, never concede that their clients deserve the death penalty or that the death penalty was legally imposed -- no matter how flimsy their arguments in a given case. Rather, they use every procedural and substantive trick in the book to delay executions.

There can be no denying that such abolitionist tactics have angered and frustrated state prosecutors. And one response to these understandable emotions has been for prosecutors to mirror the fight-to-the-bitter-end approach of their opponents.

The problem with this reciprocation, however, is simply that the ethical duties of prosecutors and defense attorneys are vastly different. Defense attorneys are duty-bound to scratch and claw to win for their clients. Prosecutors, by contrast, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.

That may sound trite and perhaps overly idealistic, but it has a practical side as well. Prosecutorial confessions of error -- knowing when to fold them, as it is known -- establish credibility. They create trust in the system, a sense that someone is being careful and exercising sound judgment, that extends far beyond any single case. And that can make a world of difference for someone like me, who is not morally opposed to the death penalty but skeptical of how it is imposed.

Death Penalty Politics

In addition, the reluctance of state prosecutors to confess error is a clear reflection of how politics affects the death penalty. Up until now, anyway, undoing a death sentence was akin to political suicide for an elected district attorney or state attorney general, or for any state official with ambitions for re-election or higher office. And yet the willingness of Texas' new solicitor general to confess error in the Saldano case suggests a possible turning point. With the current groundswell of death penalty opposition based on the possibility of executing an innocent person, elected officials may now find some advantage in approaching capital cases (even those where innocence is not an issue) with a greater degree of care and honesty.

case will start a broad trend. But there is reason to believe that the tide is indeed turning. On June 9, Texas Attorney General John Cornyn announced the results of an investigation into other death penalty cases involving testimony by state expert Walter Quijano. Cornyn acknowledged that Dr. Quijano had provided testimony in six other death penalty cases similar to his improper testimony in the Saldano case. Cornyn's staff has advised defense lawyers for the six inmates now on death row that his office will not oppose efforts to overturn their sentences based on Quijano's testimony. In response, a pessimist might note that Texas is appealing a ruling in another capital case that the defendant received inadequate counsel -- when, indisputably, his lawyer slept through much of the trial. But doing the right thing has a contagious quality to it. Or at least so we can hope.

Edward Lazarus, a former federal prosecutor, is the legal correspondent for Talk Magazine and the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

South Texas Verdad: maria magdalena: You ain't seen nothin' yet

2007-05-25T02:11:00.000-07:00

South Texas Verdad: maria magdalena: You ain't seen nothin' yet

CCISD: Why are CCISD Students allowed to run at large during school day hours?

2007-05-25T02:09:00.001-07:00

CCISD: Why are CCISD Students allowed to run at large during school day hours?

The Best Defense: CCISD: Why are CCISD Students allowed to run at large during school day hours?

2007-05-25T02:09:00.000-07:00

The Best Defense: CCISD: Why are CCISD Students allowed to run at large during school day hours?

CCISD: Why are CCISD Students allowed to run at large during school day hours?

2007-05-25T02:03:00.000-07:00

CCISD: Why are CCISD Students allowed to run at large during school day hours?

The Best Defense: The mere fact that exculpatory evidence was withheld is a Brady on it's face a violation...politics as usual 'eh mate?

2007-05-25T02:00:00.000-07:00

The Best Defense: The mere fact that exculpatory evidence was withheld is a Brady on it's face a violation...politics as usual 'eh mate?

South Texas Verdad: maria magdalena: You ain't seen nothin' yet

2007-05-25T01:58:00.000-07:00

South Texas Verdad: maria magdalena: You ain't seen nothin' yet

Execution~ my bad ~Executive session deprives the public of "engagement of any and/or all matters they are paying for. Pro Bono consult? y not? 551

2007-05-25T01:44:00.000-07:00

Google is neither affiliated with the authors of this page nor responsible for its content.
These search terms have been highlighted: tyner little
Page 1
Commissioners Court Minutes For July 26, 2006
Page 1 of 7
REGULAR MEETING – JULY 26, 2006
BE IT REMEMBERED, that on this the 26
th
day of July, A.D., 2006, there was begun and held a
REGULAR MEETING of the Honorable Commissioners Court of Nueces County, Texas, wherein
the following members thereof were present, to-wit:
TERRY SHAMSIE
COUNTY JUDGE
PEGGY BAÑALES
COMMISSIONER, PRECINCT NO. 1
BETTY JEAN LONGORIA
COMMISSIONER, PRECINCT NO. 2
OSCAR O. ORTIZ
COMMISSIONER, PRECINCT NO. 3
H. C. “CHUCK” CAZALAS
COMMISSIONER, PRECINCT NO. 4
and DIANA T. BARRERA, COUNTY CLERK & EX-OFFICIO CLERK OF THE COMMISSIONERS
COURT of Nueces County, Texas, wherein the following proceedings were had, to-wit:
Pastor Axel from Pilgrim Baptist Church gave the invocation.
The Court entered into Workshop Session at 8:40 a.m.
The Court reconvened into regular session at 9:05 a.m.
Agenda Item #1
PUBLIC COMMENT
None
The Court recessed the regular meeting at 9:06 a.m. to hold a Public
Hearing to consider naming a newly constructed section of road “County
Road 48” and rename an existing section of road “Hummingbird Lane”.
On motion of Commissioner Cazalas, seconded by Commissioner Longoria,
the Court voted to close the Public Hearing and to reconvene into Budget
session at 9:10 a. m.
The Court reconvened into regular session at 10:55 a.m. All members
present.
Pledge of Allegiance
Page 2
Commissioners Court Minutes For July 26, 2006
Page 2 of 7
Agenda Item #18
On motion of Commissioner Cazalas, seconded by Commissioner Longoria,
the Court voted to adopt a resolution formally accepting the
recommendations of the Nueces County Beach Management Advisory
Committee, related to the Nueces County Dune Protection and Beach
Access Plan. See Volume 37, Pages 561-569.
Agenda Item #2
GENERAL INFORMATION REPORTS
Commissioner Cazalas reported that he would be going to Austin on
Thursday to attend a meeting pertaining to retirement plan issues.
Commissioner Longoria also reported that she was going to attend the same
meeting in Austin.
Commissioner Ortiz – no report
Commission Bañales commented on the wonderful opening of the Old
Courthouse annex. She also thanked the following people who assisted with
the project: Edward Herrera, Lt. Robert Hernandez, Elsa Saenz, Roxanne
Hunt and her staff, Jason Parker, Michael Molina, Commissioners Court
Assistants Yolanda Slubar, Sandra Santos, Sandra Ysassi, and Josie Herro,
and Tyner Little.
Judge Shamsie commented that the Commissioners Court will be adopting a
tax rate that is lower than the effective tax rate. He is also proposing to raise
the homestead exemption for those over 65 and disabled, from $60,000 to
$62,500 which will further lower the taxes. The Judge also thanked the
Court, all Elected Officials, and employees for their hard work in keeping
costs down. It was a team effort.
Agenda Item #3a
CONSENT AGENDA
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to approve the minutes for the March 8, 15, and 23, 2006,
Commissioner Court meetings, with corrections to the March 15, 2006
minutes to include the following names of persons who assisted during the
Diabetes Awareness Fair: Commissioner Bañales thanked the Leopard
Street Corridor, Ace Zamora, a Miller High School student, Elsa Saenz,
Human Resources Director and son Eric, Terry Montes, Yolanda Slubar and
son Steven and her daughter Analisa Bañales for their hard work in
preparation for the event.
Page 3
Commissioners Court Minutes For July 26, 2006
Page 3 of 7
Agenda Item #3a(i)
On motion of Commissioner Ortiz, seconded by Commissioner Bañales, the
Court voted to authorize payment of bills and claims certified by the County
Auditor, including regular bill summaries dated July 12 (2), July 13 (2), July
17, July 19, July 20 (2), and July 24, 2006, and manual checks dated July
14, and July 21, 2006; and to approve the Special Motions List dated July
26, 2006. See Volume 37, Pages 570-571.
Agenda Item #3b
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to authorize the acceptance of a donation of $1,000.00 from
TXU Energy for use by the Nueces County Human Services Department.
Agenda Item #3c
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to ratify the contract with Complete Construction Service for
services related to the Hilltop Nature Area II Skate Park, subject to company
providing proper insurance. Contract No. 200600092.
Agenda Item #4
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to authorize the adoption of a Resolution and Order adopting
the name of “County Road 48” for a newly constructed section of roadway.
See Volume 37, Page 572.
Agenda Item #14
On motion of Commissioner Longoria, seconded by Commissioner Ortiz, the
Court voted to approve a pay adjustment for Juvenile Board members and
County Court at Law Judges, effective December 1, 2005, pursuant to
Attorney General Opinion No. GA0437.
Agenda Item #6
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to approve an amendment to grant for Local Public
Health Preparedness and Response for the Bioterrorism FY 05-06 in the
amount of $67,381.00. Contract No. 200600093
Agenda Item #7
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to approve Attachment No. 03A to Department of State
Health Services Title XX contract for additional funding in the amount of
$46,329.00. Contract No. 200600094
Page 4
Commissioners Court Minutes For July 26, 2006
Page 4 of 7
Agenda Item #8
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to approve Attachment No. 04A to Department of State
Health Services Title V contract for funding in the amount $22,840.00.
Contract No. 200600095
Agenda Item #5
On motion of Commissioner Bañales, seconded by Commissioner Cazalas,
the Court voted to adopt a Resolution and Order to change the name of a
section of County Road 48 to “Hummingbird Lane”. See Volume 37, Page
573.
Agenda Item #9
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to authorize execution of a contract with Naismith
Engineering, Inc., for roadway and drainage improvements relating to the
Rose Acres Colonia project. Commissioner Cazalas abstained because he
is Chairman of Office of Rural Community Affairs Grant Review Committee.
Contract No. 200600096.
Agenda Item #10
On motion of Commissioner Longoria, seconded by Commissioner Ortiz, the
Court voted to adopt a resolution authorizing the submission of a grant
application to the Texas Parks and Wildlife Department for a Texas
Recreation and Parks Accounts Program. See Volume 37, Page 574.
Agenda Item #11
On motion of Commissioner Ortiz, seconded by Commissioner Longoria, the
Court voted to approve an amendment to the Texas Parks and Wildlife
agreement related to extending the expiration date on the New North
Robstown County Park grant from July 15, 2006 to July 31, 2006. Contract
No. 200600097
Agenda Item #12
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to approve the execution of a Memorandum of
Understanding with the State of Texas – Office of Court Administration for
collection software funding assistance. Contract No. 200600100
Agenda Item #13
On motion of Commissioner Ortiz, seconded by Commissioner Longoria, the
Court voted to accept and approve the Management Letter from the
independent audit firm, Pattillo, Brown and Hill, for fiscal year ended 9-30-05.
Page 5
Commissioners Court Minutes For July 26, 2006
Page 5 of 7
Agenda Item #15
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to approve the allocation of $1,000.00 diabetes funds for the
Texas Cooperative Extension for Do Well, Be Well with Diabetes (DWBW)
Program.
Agenda Item #16
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to approve an agreement with Goliad County, related to the
performance of Postmortem examinations by the Nueces County Medical
Examiner. Contract No. 200600098
Agenda Item #17
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to authorize execution of agreement with the Office of the
Texas Attorney General related to the Child Support Enforcement Program
pursuant to Title IV-D. Contract No. 200600099
Agenda Item #19
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to authorize the County Judge Executive Assistants, Steve
Waterman and Tyner Little, to approve the Quarterly Request for County
Reimbursement of Juror Payments.
Agenda Item #20a
On motion of Commissioner Longoria, seconded by Commissioner Cazalas,
the Court voted to award IFB No. 2660-06, Channel Clearing near Banquete,
to Garrett Construction Company.
Agenda Item #20b
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to table Agenda Item #20b.
Agenda Item #20c
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to advertise for Courthouse Window Renovation.
Agenda Item #20d
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to advertise for Courthouse Elevator Maintenance.
Agenda Item #20e
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to authorize advertisement for a New 12” Waterline
Improvement for the Fairgrounds.
Page 6
Commissioners Court Minutes For July 26, 2006
Page 6 of 7
Agenda Item #20f
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to authorize advertisement for a Courthouse Security Access
Control System.
Agenda Item #21
On motion of Commissioner Longoria, seconded by Commissioner Bañales
the Court voted to table Agenda Item #21.
Agenda Item #22a
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to approve Unfreeze List No. 486 and Temporary Application
and Contract List No. 176. See Volume 37, Pages 575-576.
Agenda Item #22b
On motion of Commissioner Longoria, seconded by Commissioner Cazalas,
the Court voted to approve Personnel Change Reports through July 11, and
July 18, 2006. See Volume 37, Pages 577-588.
Agenda Item #22c
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to approve creation and the unfreeze of Epidemiologist
position, PG 27, Step 1, under the Department of State Health Services
grant funding.
Agenda Item #22d
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to approve reclassifying the Tax Office position no. 22, from
17/03 to 21/01; and position no. 35 from 15/01 to 11/01.
Agenda Item #22e
On motion of Commissioner Cazalas, seconded by Commissioner Bañales,
the Court voted to approve of the reclassifying the Public Works Principle
Engineer position from 38/01 to 42/01.
Agenda Item #22
On motion of Commissioner Cazalas, seconded by Commissioner Longoria,
the Court voted to approve the creation and unfreeze of an architect-facilities
management position, pay group 39, in the Department of Public Works.
Page 7
Commissioners Court Minutes For July 26, 2006
Page 7 of 7
Agenda Item #23
EXECUTIVE SESSION
On motion of Commissioner Cazalas, seconded by Commissioner Bañales,
the Court voted to enter into session at 11:55 a. m. in accordance with the
authority of the Government Code, Vernon’s Texas Codes, Sections
551.071, 551.072, 551.073, 551.074, 551.0745, 551.076, 551.086, to
consult with attorney(s) including matters related to litigation; deliberate
regarding real property, prospective gift(s), personnel matters including
termination, county advisory bodies, security devices, and/or economic
development negotiations and other matters that may be discussed in an
Executive Session. Upon completion of the Executive Session, the
Commissioners Court may in an open session take such as action as
appropriate on items discussed in an Executive Session.
The Court reconvened into regular session at 12.54 p.m. Judge Shamsie
absent.
Agenda Item #24
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to appoint Candy Holmes, Wavel Milligan Brown,
Commander U. B. Alvarado, Nick Nevarez, and Rev. Richard Stafford to the
Adult Protection Services Special Task Unit
On motion of Commissioner Longoria, seconded by Commissioner Bañales, the Court voted to
adjourn the meeting at 1:00 p.m.
There being no further business to come before the Court, it is ordered that this meeting do now
stand adjourned, this the 26
th
day of July, 2006.
_______________________________________________
Terry Shamsie, County Judge
Nueces County, Texas
ATTEST:
Diana T. Barrera, County Clerk
And Ex-Officio Clerk Of The
Commissioners Court Of
Nueces County, Texas
_________________________________________
Diana T. Barrera, County Clerk

The mere fact that exculpatory evidence was withheld is a Brady on it's face a violation...politics as usual 'eh mate?

2007-03-24T01:16:00.000-07:00

Send this document to a colleague Close This Window

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0521-05

Ex parte JAMES S. MASONHEIMER, Appellee

On Discretionary Review of Case 11-03-00234-CR of the

Eleventh Court of Appeals from

Taylor County

Womack, J., filed a dissenting opinion, in which Keller, P.J., joined.

I.

As I understand the facts, there was no Brady violation in the first mistrial.

First, the evidence wasn't unknown to the defendant. The evidence in question was something that he said to a neighbor after he shot the deceased. It's pretty hard for a defendant to claim that he has been denied discovery of something he said to a non-officer.

Second, the existence of the statement was not undisclosed. The witness referred to it in direct examination, and it all came out. Even if the State had a wicked mind, there was no wicked result.

Third, we don't know that the statement would have remained undisclosed. The State had not turned it over before trial. But the non-discretionary right to a witness's statement is not in the pre-trial discovery statute; it's in Rule of Evidence 615, which requires production only after the witness's direct examination. It would be routine for a defendant to ask for a witness's statement at that point, if none had been provided previously. So as far as we know, the State would have turned over the witness's statement on a Rule 615 request.

Fourth, although the Court is very concerned about the failure to disclose the witness's statement before trial, the Due Process Clause doesn't require pretrial disclosure; it only forbids nondisclosure at trial -- which did not happen.

Fifth, there's a little problem of how the defendant would have been able to get his hearsay statement admitted even after he found out about it.

Sixth, it doesn't look like the first mistrial was provoked by this "violation." As I understand it, after the disclosure of the defendant's statement to this witness, there was a delay because the court told the State to look for other discoverable evidence. During the delay, the lead prosecutor's relative died, and the defendant asked for the mistrial. It seems to me at least reasonable that, in addition to his courtesy in the circumstances of the death, the defendant wanted to have a new trial now that he knew how the State was going to be able to prove that the defendant shot the deceased. (See pages 8-9 of the opinion for the defense counsel's statements about being disadvantaged in his trial preparation by not knowing how the State would prove this fact. But remember, this disadvantage is not a due-process violation.)

II.

The second mistrial was granted because the State did not disclose evidence about steroids. This mistrial was necessary only if the defendant wanted to withdraw his waiver of a jury trial. (A jury had been waived, and the defendant pleaded nolo contendere.) The defendant's argument about this proceeding being one in which he hoped for an acquittal is incredible to me. No one pleads guilty or nolo contendere hoping for an acquittal. If he had said that he waived a jury and pleaded not guilty because he thought he had a better chance for acquittal with the judge than with a jury, I could believe it. But not that he entered a plea of nolo in hopes of an acquittal.

The opinion refers to Article 1.15's requirement of evidence (other than the plea) to establish guilt in a non-jury trial. But there obviously was such evidence; it was uncontested that the defendant intentionally killed the deceased.

If the defendant asked for a mistrial so that he could change his choice of fact-finder, I might go for it, but that is not his theory.

III.

I agree that the prosecutor was wrong, wrong, wrong in not giving the discovery that was ordered. But I do not see that it caused a violation of either the federal or the state jeopardy clause. I respectfully dissent.

Filed March 21, 2007.

Publish.

Illustrative of when supported-by-the-record implied fact findings

2007-03-20T01:23:00.000-07:00

Send this document to a colleague Close This Window

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1136-05

THE STATE OF TEXAS

v.

EVON KELLY, Appellee

ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRTEENTH COURT OF APPEALS

NUECES COUNTY

Hervey, J., delivered the opinion of the Court in which Keller, PJ., Keasler, Holcomb and Cochran JJ., joined. Price and Johnson, JJ., concurred. Meyers and Womack, JJ., not participating.

O P I N I O N

The issue in this case is whether the Court of Appeals misapplied the appellate standard of review in reversing the trial court's order granting appellee's motion to suppress. We will affirm the judgment of the Court of Appeals.

At approximately 8:00 a.m. on March 5, 2001, appellee and her minor son were involved in an accident in a car that appellee was driving. They were taken to a hospital emergency room for emergency medical treatment. An emergency-room technician/phlebotomist (Gosson) drew appellee's blood for medical treatment purposes. Hospital testing of this blood indicated that appellee's blood-alcohol concentration was above the legal limit. Soon after this, the police came to the emergency room and asked appellee for a specimen of her blood. She refused. Several days later, the State obtained appellee's hospital blood-test results through a grand-jury subpoena.

On May 5, 2001, an information was filed charging appellee with DWI. On May 14, 2003, appellee filed a motion to suppress her hospital blood-test results. This motion alleged that the "use of the results of testing on [appellee's] blood is not authorized by law and violates [appellee's] Federal and State constitutional rights." (1) The only factual claim that appellee made in her motion to suppress was that Gosson drew appellee's blood without appellee's "effective and informed consent."

The trial court held a hearing on appellee's motion to suppress on July 31, 2003. At the beginning of this hearing, appellee abandoned any claim that Gosson obtained her blood in violation of the Fourth Amendment and that the Fourth Amendment's exclusionary rule, therefore, excluded her hospital blood-test results. Instead, she claimed that Gosson assaulted her in the emergency room when he drew her blood for medical treatment purposes without her consent, (2) and that her hospital blood-test results, therefore, should be suppressed under our state-law exclusionary rule in Article 38.23(a), Tex. Code Crim. Proc., which requires exclusion of evidence that is "obtained" in violation of the law. (3) Appellee explained to the trial court:

[THE DEFENSE]: The law states that the hospital-if they're not being directed by police officers to draw blood, the police-the hospital workers have to have consent of the person who is being treated to draw blood; otherwise, unless there's been life-threatening injuries or unless they're incoherent or unable to consent, they have to have consent; otherwise, it's an assault, and it's excludable under 38.23 of the Code of Criminal Procedure.* * *

The way it occurred in this case and the way we're prepared to develop, Judge, is there was an automobile accident. My client was taken to the hospital. She did not give consent for a blood draw. I believe her husband gave consent,[ (4)] but she did not give consent for a blood draw, but they just took blood from her. She did give consent later on for a surgical procedure [to treat a collapsed lung] but not to the blood draw. And-and if-I'll show the Court our cases. Judge, in Hailey the situation was almost identical, Judge. That-that contains not only Hailey but also the cases that are cited in Hailey. In Hailey the police took a guy who had been involved in an accident to the hospital. They wanted him tested for possible alcohol poisoning. The Defendant refused to permit the blood draw. The hospital employee took it anyway, and the Court held that that was an assault and it was excludable under 38.23. Because the-38.23, the exclusionary rule, says the actions of a peace officer or other individual if they commit an illegal act to obtain evidence, then it's excludable.

* * *

Okay. So we're not talking about a Fourth Amendment seizure. And, in fact, if you look at the Hailey case, it specifically addresses that issue, and it says, "Look, under the Fourth Amendment of the Constitution of the United States it would be admissible, but under 38.23 and under the laws of the State of Texas we can be more cautious than the United States Constitution." And 38.23 says that if the State or any other person illegally seizes the evidence, then it's not admissible. If you look at the J. Johnson case, that case is a Court of Criminal Appeals En Banc case in a capital murder case which you know there's never any good law out for a Defendant in a capital murder case where they suppressed evidence that was taken from the scene by private citizens. And they said, "Look, 38.23 says other people-" plain reading of the statute says nobody else-I mean, that that's illegal. It's basically a theft and so it's suppressed, and they suppressed this in a capital murder case. What happened in this case is there's a car wreck, she's taken to the hospital, she's alert as the medical records and the ambulance records that are-that have been filed with the Court shows. She is alert and oriented. She is answering questions. If you look at the neurological scale she makes a 15 on a scale of 15 as far as being oriented and able to answer questions and spontaneous. They take her in. Her husband signs a consent to treatment. She doesn't sign it. So once she doesn't sign that consent to treat, and I think we have two statutes, Judge, on-and these may be what the Court was referring to, consent for medical care under 773.008 of the Texas Health & Safety Code is a consent for emergency care and outlines that they have [sic] to be consent unless an individual is unable to communicate because of injury, accident, illness or is unconscious and suffering from what appears to be life-threatening injuries or illness, so it's conjunctive, meaning all of those things have to be there. 313.004 is consent for medical treatment in a non-emergency situation but basically has the same language. If an adult patient in a hospital or nursing home is comatose, incapacitated, or otherwise mentally or physically incapable of communication, an adult surrogate from the following list can consent. The problem is under the State's own records that they have admitted into court, [appellee] was alert. She was conscious. She responded to questions appropriately. She was able to answer questions about her medical history. And I can direct the Court-I have tabbed some of these things for the Court to see. The first one is one of their records talking about her neurological, and it has a scale over here on how well she was oriented and the questions that they asked her. Let's see. The second one also talks about being alert. The GC scale is 15. That's the neurological scale. That she is cooperative. That she is not drowsy. She is not comatose and that [sic] she is not disoriented. And this is all on this second page in the medical records that the State has offered to you. The consent is also in here, and I'm sure I marked it, and I can find it for the Court, but it is-here it is. It's signed by Mr. Kelly, William Kelly.

Whether appellee consented to Gosson's blood draw was the only factual issue litigated at the suppression hearing. Gosson testified at this hearing that he obtained appellee's consent to draw her blood and that he would not have drawn her blood without her consent.

Q. [PROSECUTION]: Can you please describe the procedure as to how you went about drawing [appellee's] blood on that day?

A. [GOSSON]: First, I obtained the orders on meditech, which is a set of orders that tells us the type of blood draw to draw, and I went to the patient's room after obtaining the necessary materials that are needed for that blood draw and I identified myself to the patient, and I took her arm which had an arm band on it, and I made sure that the arm band and the meditech orders matched, that her name matched on the meditech orders, and I told her what my job title was, what I needed to do, and asked for a consent to draw her blood.

Q. Did you obtain that consent?

A. I obtained her consent.

Q. She didn't tell you "No, you can't have my blood"?

A. I wouldn't have drew [sic] it.

Q. Okay.

A. She didn't tell me no.

Q. If she had told you you can't draw her blood you indicated that you wouldn't have done it. What would you have done after that?

A. If she had stated that I could not obtain her blood from her I would have told her that's okay. I wouldn't have drew [sic] her blood. I would have left. I would have reported that to the nurse and, you know, that's all I can do.

On cross-examination, Gosson testified that appellee did not refuse to let him draw her blood which he interpreted to be consent.

Q. [THE DEFENSE]: All right. So when you're talking about consent, she merely acquiesced and she didn't withdraw or recoil, is that true-correct?

A. [GOSSON]: She did not refuse.

Q. So she didn't affirmatively refuse?

A. Correct, she didn't.

Q. That's your testimony here today?

A. Correct.

Q. And you're interpreting that lack of refusal to be consent?

A. Yes, sir.

When called by the defense to testify at the suppression hearing, appellee initially testified that she did not recall consenting to Gosson's blood draw. She eventually testified that she did not consent to this blood draw, which caused her physical pain.

Q. [THE DEFENSE]: Did they ever ask you for consent to do that?

A. [APPELLEE]: Not that I recall, no.

Q. When they drew the sample were you conscious?

A. Yes, I was.

Q. Were you aware of your circumstances?

A. Yes.

Q. Were you able to answer questions of people who were treating you?

A. Yes.

Q. Do you recall any-any person asking you whether or not you gave consent or approval for the blood draw?

A. No, I do not.

Q. Okay. And you did not consent to the blood draw?

A. No.

Q. Were you ever presented a-any documentation so that you could consent?

A. No.

Q. You were given documentation to consent to a surgical procedure that happened sometime later at your stay at the hospital, is that correct?

A. Yes.

Q. Do you remember the blood draw?

A. Yes, I do.

Q. Did it hurt you?

A. Yes.

Q. Okay. Caused you physical pain?

A. Yes.

Appellee later testified on direct examination that Gosson never asked her for permission to draw her blood. She also testified that, when she was later given a choice by the police to refuse or to consent to a blood draw, she refused.

Q. [THE DEFENSE]: And is it basically true that [Gosson] just went in and said he was going to draw blood and you-

A. [APPELLEE]: Yes.

Q. Now, he never asked permission to draw blood, is that correct?

A. No.

Q. All right. And he never-and you never consented to this blood draw, is that correct?

A. No, I did not.

Q. As a matter of fact, when somebody gave you the choices as to whether or not you would allow a blood draw or not you refused, is that correct?

A. Yes, I did.

Q. And that came when the police officer after this blood draw came and told you that you had-that they wanted a blood draw and that you had a right to either consent or refuse, is that right?

A. That's right.

Q. And at that point once you were given a choice you refused, is that correct?

A. Yes, I did.

On cross-examination by the prosecution, appellee testified that Gosson told her "that blood needed to be drawn, so [she] put [her] arm out." Appellee testified that she guessed that she consented to Gosson's blood draw.

Q. [PROSECUTION]: But you're saying you didn't understand what the gentleman here, Mr. Gosson, was explaining to you with respect to the blood draw?

A. [APPELLEE]: He didn't explain anything to me.

Q. What is your recollection of what happened when he walked into the room?

A. My recollection is he said, "I'm here to take your blood." And that-I mean, there were people doing all kinds of things. I was horizontal.

Q. Let me just stop. We'll go one at a time. And when he says, "I'm here to take your blood," did you say to Mr. Gosson "Not a chance"?

A. No, I did not.

Q. Did you tell him under no circumstances did you want him to draw any blood from you?

A. No, I did not.

Q. And what's the next thing that he said to you?

A. I really don't recall.

Q. Okay. And at the time did you think it would be in your best medical interests to have the blood drawn so you could be treated by the medical staff?

A. That was what needed to be done.

Q. So then you understood that it needed to be-the blood needed to be drawn; you understood that, correct?

A. I was told that blood needed to be drawn, so I put my arm out.

Q. Okay. And you understood you were receiving medical treatment at that time, correct?

A. Yes, I did.

Q. And you had what was called-did you subsequently become aware that you had a pneumothorax?

A. A collapsed lung?

Q. Yes, ma'am.

A. Yes.

Q. Now, you knew that they needed to draw blood to adequately treat you medically, is that correct?

A. I did not know that. I was just told that the blood was going to be drawn from me.

Q. And you consented by not refusing because you knew that was part of your medical treatment, is that correct?

A. I consented.

Q. You did consent?

A. Well, I put my arm out.

Q. So you did consent-you would agree with me you did consent?

A. I guess so.

On re-direct examination by the defense, appellee testified that she did not consent to Gosson's blood draw.

Q. [THE DEFENSE]: Okay. And I guess you know you got talked into saying that you consented, but did you consent?

A. [APPELLEE]: No.

During closing arguments to the trial court, appellee claimed that Gosson "obtained" her blood in violation of the law for Article 38.23(a) exclusionary-rule purposes because Gosson assaulted her when he drew her blood for medical treatment purposes with only her "mere acquiescence."

[THE DEFENSE]: -Article 10, okay. Since it was a non-police, then the Fourth Amendment doesn't apply because the Fourth Amendment of the Constitution only applies if it's a police action, okay, but 38.23 still applies. And so then we got to look at 38.23 and decide whether or not this was a consensual drawing of the blood by a private citizen. Because 38.23 says as it says in the Johnson case "or other person". The testimony here, the records are that she was oriented, she knew who she was, she knew where she was, she knew what was going on, and she did not consent to the blood draw. She never-she merely acquiesced. There are reams of case law from the United States Supreme Court-I didn't bring it today because I didn't realize this was going to be such a prominent issue-but the Court is well aware that mere acquiescence is not consent, and that's throughout Texas case law and throughout the United States Constitutional case law. But the issue before the Court is to determine whether or not she consented to the blood draw. And if she did not consent then, technically, it's an assault. Whether or not she filed charges doesn't matter. Whether or not she filed a civil suit doesn't matter. The question is whether or not it was drawn without consent. The consent form is signed by her husband. If you look at the time on the blood alcohol test I believe it's 9:30 in the morning. There's a subsequent consent to the procedure, and I don't want to call it a surgery because they did it right there in the Emergency Room where they put the tube in between the ribs to reinflate the lung. And there is a consent for that specific procedure, but there is no consent for the blood draw. If there's no consent for the blood draw, then it is technically whether actionable or whether it should be actioned on, it is technically an assault under 22.01 of the Texas Penal Code because we've shown that it was intentionally done. He testified he went in there intentionally to do it; you know, that it hurt, so we've got intentionally caused bodily injury-pain. And that's directly the logic that is followed by the Hailey case.[ (5)]

Following arguments by counsel, the trial court indicated that it wanted additional briefing from the parties on the "acquiescence question" and "anything else" about the "question of doing this end run thing." (6)

[THE DEFENSE]: What particular points do you want? The mere acquiescence question?

[TRIAL COURT]: That's one question, and if there's anything else either one of you can glean about this question of doing this end run thing. Okay.

[PROSECUTION]: Yes, Your Honor.

[TRIAL COURT]: I'd like it about two weeks from now.

[THE DEFENSE]: Do you want it briefed or just cases, Your Honor?

[TRIAL COURT]: I want a brief.

On August 8, 2003, appellee filed a brief in the trial court on "inadmissibility of blood evidence." This brief appears at pages 131 to 137 in the Clerk's transcript. Appellee's brief asserted:

The evidence, viewed in light most favorable to the State, shows that [appellee] merely acquiesced to Gosson's statement that he was going to draw her blood. This acquiescence was obtained at a time when she was being treated for her injuries by several hospital employees. Voluntary consent is not shown by mere acquiescence to authority. (Citations omitted).

Appellee's brief also raised a new factual claim--that hospital personnel illegally disclosed appellee's hospital blood-test results to the police before the police requested appellee to provide a blood specimen. (7) Appellee's brief asserted that the police learned of appellee's hospital blood-test results only "through disclosures by an ER nurse [Hertsch] and a treating physician [Blanchard]." (8) Appellee's brief claimed that her hospital blood-test results should have been suppressed as "fruits" of this initial illegality by hospital personnel. Appellee's brief asserted:

Neither nurse Hertsch, nor Dr. Blanchard had [appellee's] written or, for that matter, oral authority to disclose information regarding her blood alcohol content to the officers. (That she did not wish for the police to have this information is made clear by her refusal to submit to a voluntary blood draw.) It is also clear that, but for the disclosures, the officers would not have pursued their DWI investigation.

The disclosures were unauthorized and made in violation of Texas Health and Safety Code Section 241.151 et seq, and are thus not admissible under 38.23 of the Texas Code of Criminal procedure. Although 241.153(20) does allow for disclosure in order to comply with a subpoena, if it had not been for the illegal acts of Nurse Hertsch and Dr. Blanchard, the State would not have had knowledge of the test results and would not have subpoenaed the records. The results are therefore inadmissible under the provisions of Art. 38.23, as "fruit of the poisonous tree." (Citations omitted).[ (9)]

The next document at pages 138 to156 in the Clerk's transcript is entitled "State's Brief In Opposition Of Motion To Suppress." This brief contains no file-stamp showing when it was filed, it is not signed, and it contains no certificate of service showing that it was sent to the defense. This brief addresses three issues: whether appellee consented to Gosson's blood draw, whether Gosson assaulted appellee when he drew her blood, and whether appellee had a reasonable expectation of privacy in her medical records which, according to the State's brief, was relevant to whether the State could obtain these medical records pursuant to a grand-jury subpoena. The State's brief did not address appellee's new factual claim that hospital personnel (Hertsch and Blanchard) illegally disclosed the results of appellee's hospital blood-test results to the police.

On February 17, 2004, the trial court signed an order granting appellee's motion to suppress without making any written findings of fact or conclusions of law explaining the factual or legal basis for its ruling. The State appealed. The only question presented in the State's brief on direct appeal was whether the trial court abused its discretion "in suppressing blood-alcohol test results where there is no reasonable expectation of privacy in medical records showing blood-alcohol test results from tests taken by hospital personnel solely for medical purposes after a traffic accident?" In its brief on direct appeal, the State argued that there is "no Fourth Amendment reasonable expectation of privacy and no statutory physician-patient privilege of confidentiality that protects the record of blood test results of an injured motorist from being given to law enforcement officers pursuant to a grand jury subpoena."

Appellee's brief on direct appeal responded that the State was attempting "to change the focus of the trial court's concerns" from "whether the appellant's [sic] blood was seized illegally in the first place to whether the State's subsequent grand jury subpoena somehow made the results of an otherwise illegal search admissible." (10) See also Spebar v. State, 121 S.W.3d 61, 63-64 (Tex.App.-San Antonio 2003, no pet.) (rejecting similar claim made by prosecution because defendant did not claim violation of right to privacy, but claimed that results of his blood-test were inadmissible because hospital personnel assaulted him by taking his blood). Appellee's brief on direct appeal also claimed that the trial court properly suppressed appellee's hospital blood-test results because "the evidence, viewed in light most favorable to the State, shows that appellee passively acquiesced[ (11)] to the hospital's blood draw" which, according to appellee, did not equal consent. Appellee's brief also reasserted her new factual claim that hospital personnel (Hertsch and Blanchard) illegally disclosed appellee's hospital blood-test results to the police.

The Court of Appeals decided that the Fourth Amendment's exclusionary rule did not exclude appellee's hospital blood-test results obtained by the State through the grand-jury subpoena because no reasonable expectation of privacy existed in the medical records containing appellee's hospital blood-test results. See State v. Kelly, 166 S.W.3d 905, 911 (Tex.App.-Corpus Christi 2005) citing State v. Hardy, 963 S.W.2d 516, 527 (Tex.Cr.App. 1997) (any interests society has in safeguarding privacy of medical records "are not sufficiently strong to require protection of blood-alcohol test results from tests taken by hospital personnel solely for medical purposes after a traffic accident"). (12) The Court of Appeals also decided that the blood draw by Gosson did not implicate the Fourth Amendment because that involved purely private action and not police conduct. See Kelly, 166 S.W.3d at 910. (13)

The Court of Appeals also declined to address several other theories, including appellee's new factual theory that hospital personnel illegally disclosed appellee's hospital blood-tests to the police, that might have supported the trial court's ruling granting appellee's motion to suppress. See Kelly, 166 S.W.3d at 909-10. (14) The Court of Appeals further decided that, even if appellee did not consent to Gosson's blood draw, the record does not support "exclusion of the evidence on grounds of assault" because Gosson reasonably believed that appellee consented and the drawing of her blood neither threatened nor inflicted serious bodily injury. See Kelly, 166 S.W.3d at 915; see also Section 22.06 (1), Tex. Pen. Code, (actor's reasonable belief that victim consented to actor's conduct is a defense to assault prosecution if the conduct did not threaten or inflict serious bodily injury). (15)

Finally, in considering whether Gosson's blood draw violated a provision of the Texas Health and Safety Code apparently requiring a patient's consent for emergency medical care, (16) the Court of Appeals ultimately decided that appellee "consented to the blood extraction, despite her inconsistent testimony to the contrary." (17) See Kelly, 166 S.W.3d at 915-16. (18) We exercised our discretionary authority to review this decision and to address the claim that the Court of Appeals misapplied the appellate standard of review by failing to view the evidence in the light most favorable to an implied finding that appellee did not consent to Gosson's blood draw. The ground upon which we granted discretionary review states:

The Court of Appeals has decided an important question of state and federal law in a way that conflicts with the applicable, controlling decisions of the Texas Court of Criminal Appeals.

In reviewing a trial court's ruling on a motion to suppress, an appellate court must view the evidence in the light most favorable to the trial court's ruling. (19) When a trial court makes explicit fact findings, the appellate court determines whether the evidence (viewed in the light most favorable to the trial court's ruling) supports these fact findings. The appellate court then reviews the trial court's legal ruling de novo unless the trial court's supported-by-the-record explicit fact findings are also dispositive of the legal ruling.

The appellate standard of review is very similar when the record is silent on the reasons for the trial court's ruling or when the trial court makes no explicit fact findings and neither party has timely requested findings and conclusions from the trial court. (20) Under these circumstances, the appellate court implies the necessary fact findings that would support the trial court's ruling if the evidence (viewed in the light most favorable to the trial court's ruling) supports these implied fact findings. The appellate court then reviews the trial court's legal ruling de novo unless the supported-by-the-record implied fact findings are also dispositive of the legal ruling. (21)

Appellate courts should also keep in mind that the party with the burden of proof assumes the risk of nonpersuasion. If this party loses in the trial court and the trial court makes no explicit fact findings, then this party should usually lose on appeal. Our decision in Ross illustrates this. See Ross, 32 S.W.3d at 855-59 and at 857 ("Given the absence of any factual findings, the appellate presumption of the regularity of a trial court's judgment, and which party had the burden of proof, the trial court's implied factual findings were dispositive of the ultimate constitutional question of probable cause.") quoting Villarreal v. State, 935 S.W.2d 134, 140 (Tex.Cr.App. 1996). (22) We understand appellee to argue in her discretionary review petition and in her brief that the Court of Appeals misapplied the appellate standard of review by not viewing the evidence on the issue of appellee's consent to Gosson's blood draw in the light most favorable to appellee and the trial court's ruling granting appellee's motion to suppress. We also understand appellee to argue that the evidence, viewed in the light most favorable to the trial court's ruling granting her motion to suppress, supports an implied fact finding that she did not consent to Gosson's blood draw. For example, in her discretionary review petition, appellee asserted:

The trial court, the judicial officer charged with weighing the demeanor and the credibility of witnesses was free to believe any witness in favor of other witnesses; and, he was free to believe some portions of an individual's testimony and disregard other portions. As this Honorable Court has stated, great deference should be given to a trial court's findings of fact.

Nevertheless, the Court of Appeals did not review, de novo, the law as it applied to the facts; instead, it chose to weigh the credibility of certain portions of the appellant's [sic] testimony against other portions; and, having done so, it then determined that those portions were more credible than certain other portions. It then found the appellant had consented to her blood being drawn. The problem with doing this sort of thing is that it violates the dictates of Guzman and Carmouche.

In this case, however, we find it difficult to conclude that the record is silent on the factual basis for the trial court's ruling granting appellee's motion to suppress. Following the suppression hearing, appellee argued several times that she "merely acquiesced" to Gosson's blood draw. The trial court also indicated that it wanted additional briefing on the "acquiescence" question. A fair reading of the record indicates that appellee ultimately claimed, and the trial court found, that she "merely acquiesced" to Gosson's blood draw. (23) And, viewed in the light most favorable to the trial court's ruling, the evidence supports this finding.

Even if the record is silent on the factual basis of the trial court's ruling, the evidence, viewed in the light most favorable to the trial court's ruling, does not support an implied fact finding that appellee did not consent to Gosson's blood draw. Though appellee testified (and the record would support an implied finding) that she did not consent by expressly giving Gosson permission to draw her blood, no one testified that she expressly refused to give Gosson permission to draw her blood. On the contrary, appellee testified that, when Gosson told her that he was in the emergency room to draw her blood, she did not refuse or tell him "not a chance." Viewed in the light most favorable to the trial court's ruling, the evidence supports only an implied finding that appellee put her arm out when Gosson told her that he was in the emergency room to draw her blood for medical treatment purposes. In other words, viewed in the light most favorable to the trial court's ruling, the evidence supports only an implied finding that appellee "merely acquiesced" to Gosson's blood draw. See Webster's II New Collegiate Dictionary 10 (1999) (defining "acquiescence" as, among other things, "[u]nprotesting assent").

And, we decide that an express or implied finding of "mere acquiescence" to Gosson's blood draw also constitutes a finding of consent to the blood draw. Webster's II New Collegiate Dictionary defines "consent" as, among other things, "[v]oluntary allowance of what is planned or done by another." Webster's II New Collegiate Dictionary 240 (1999). We further note that this same dictionary defines "acquiesce" as, among other things, "[t]o consent or comply without protest." Webster's II New Collegiate Dictionary 10 (1999). Also, according to the Roget's Desk Thesaurus, "consent" and "acquiesce" are synonymous terms. Roget's Desk Thesaurus 9, 111 (2001).

Appellee nevertheless relies on the United States Supreme Court's decision in Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968), to argue that "voluntary consent is not shown by a mere acquiescence to authority." Bumper held that the prosecution did not sustain its burden to prove that a consent to a search was lawful "by showing no more than acquiescence to a claim of lawful authority." See id. In Bumper, the defendant's mother told the police to "go ahead" and search her house when one of four officers who appeared at her front door announced that he had a search warrant to search the house. See Bumper, 391 U.S. at 546. The Supreme Court held that a search cannot be justified as lawful on the basis of consent when that "consent" has "been given only after the official conducting the search has asserted that he possesses a warrant." In Bumper, 391 U.S. at 550, the Court stated:

When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion-albeit colorably lawful coercion. Where there is coercion there cannot be consent.

This case clearly does not present the same situation as that presented in Bumper. We decline to hold that Gosson's informing appellee that he was in the emergency room to draw her blood (for medical treatment purposes) is a claim of lawful authority to draw her blood without her consent, which could be used against her later, effectively announcing that appellee had no right to resist the blood draw. The other United States Supreme Court case cited in appellee's brief actually supports the proposition that appellee did not have to be told that she could refuse to consent to Gosson's blood draw in order for her acquiescence to be considered a valid consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (while knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent).

The judgment of the Court of Appeals is affirmed.

Hervey, J.

Delivered: October 25, 2006

Publish

1. Appellee's motion to suppress further alleged that the failure to suppress appellee's hospital blood-test results would "violate [appellee's] rights under the Texas Code of Criminal Procedure, including Articles 1.04, 1.05, 1.051, 1.06, 18.01, 18.02, and 38.23; and her rights under the Texas Constitution, including her rights under Article I, §§ 9, 10, and 19; and her rights under the United States Constitution, including her rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments."

2. See Section 22.01(a)(1), Tex. Pen. Code, (person commits assault if he intentionally, knowingly or recklessly causes bodily injury to another); Section 1.07(a)(8), Tex. Pen. Code, (defining bodily injury as physical pain, illness, or any impairment of physical condition).

3. In support of this claim, appellee relied on the Waco Court of Appeals' decision in Hailey v. State which this Court reversed on grounds not applicable here. See Hailey v. State, 50 S.W.3d 636 (Tex.App.-Waco 2001), rev'd, Hailey v. State, 87 S.W.3d 118 (Tex.Cr.App. 2002), cert. denied, 538 U.S. 1060 (2003). In Hailey, the Waco Court of Appeals decided that blood drawn from the defendant by hospital personnel for medical treatment purposes without the defendant's consent "was an assault, and therefore illegal" for Article 38.23(a) state exclusionary rule purposes. See Hailey, 50 S.W.3d at 639-40. This Court reversed the Waco Court of Appeals' decision in Hailey because this theory was not raised or litigated in the trial court or even raised in the Court of Appeals. See Hailey, 87 S.W.3d at 120-22; see also Hailey, 50 S.W.3d at 641-43 (Gray, J., dissenting). This Court's decision in Hailey does not control the disposition of this case because appellee timely raised the issue of her consent to Gosson's blood draw.

4. No one claims here that appellee's husband's consent was binding on appellee.

5. Emphasis added.

6. This appears to be a reference to the State obtaining appellee's medical records through a grand-jury subpoena.

7. See Section 241.152(a), Tex. Health & Safety Code, (generally prohibiting hospital personnel from disclosing patient's health-care information without patient's written authorization).

8. Attached as an exhibit to appellee's motion is a police offense report stating that Hertsch made unsolicited statements to the police that appellee was intoxicated "based on the hospital's blood screening."

9. This claim, therefore, turned on whether hospital personnel (Hertsch and Blanchard) illegally disclosed the results of appellee's hospital blood-test results to the police, and not on whether appellee consented to Gosson's blood draw.

10. Appellee made the same claim when the prosecution made the same argument to the trial court at the suppression hearing.

[THE PROSECUTION]: The blood evidence is admissible. As far as State v. Hardy, it's a Court of Criminal Appeals, 963 S.W.2d 516. It examines as far as the admissibility of blood evidence and whether or not there's a [sic] expectation of privacy and the results of the blood taken from the hospital. Specifically it cites Clark v. State, which is a Corpus Court of Criminal Appeals [sic]. It says, "We note that five Texas appellate courts have addressed, in published opinions, whether, after the promulgation of Rule 509, a reasonable expectation of privacy exists in medical records containing blood test results where the records were made for medical purposes but were later subpoenaed by a Grand Jury. Four out of five held that society does not recognize as reasonable an expectation of privacy in those kinds of records." And one of those courts is the Corpus Christi Court of Appeals, Your Honor.

[TRIAL COURT]: Response.

[THE DEFENSE]: Your Honor, we're not talking about-we're not talking about-we're talking about the legality of the initial seizure of the blood evidence, not the-not the propriety of subpoenaing hospital records. We're talking about the initial seizure of the blood evidence by the hospital.

11. Emphasis added.

12. Appellee did not challenge this decision in her discretionary review petition. And, we have noted elsewhere in this opinion that she did not challenge in the trial court or in the Court of Appeals the grand-jury subpoena process by which the State obtained her medical records. See, e.g., Footnote 10.

13. Appellee did not challenge this decision in her discretionary review petition.

14. Appellee did not challenge these decisions in her discretionary review petition.

15. Appellee did not challenge this decision in her discretionary review petition. We further note that two other courts of appeals have declined to find an assault in cases similar to this. See Ramos v. State, 124 S.W.3d 326, 334-36 (Tex.App.-Fort Worth, 2003, pet. ref'd); Spebar v. State, 121 S.W.3d at 63-64.

16. See Section 773.008, Tex. Health & Safety Code.

17. Exceptions authorized by Section 773.008 do not apply here.

18. The decision of the Court of Appeals states:

Viewed in the light most favorable to the trial court's ruling, the evidence shows that Kelly was "conscious and able to communicate" as she asserts. The evidence reasonably infers that she could have signed a written consent for treatment. Even so, the evidence also establishes that she unequivocally admitted, under oath, that she consented to the extraction of blood. Oral consent is sufficient. (Citation omitted). Further, the objective physical manifestation of Kelly's consent is established by the admitted extension of her arm to allow the extraction of the blood. Kelly allowed multiple procedures on her person, including bracing her body for transport and the transportation for the sole purpose of emergency medical care. Indeed, these are not manifestations of a "mere acquiescence of authority." The blood extraction was solely for medical purposes. Consent for the blood sample reasonably contemplates the use of blood in furtherance of her emergency medical diagnosis and treatment. To isolate the blood extraction, admittedly done in furtherance of her medical treatment, and attest in hindsight that it was the sole act she did not consent to belies the evidence in the case. "It is axiomatic that if there was consent to or a request for treatment, any complaint by [the defendant] that blood was taken illegally would be negated." (Citations omitted). We conclude that the evidence establishes that Kelly consented to the blood extraction, despite her inconsistent testimony to the contrary. Accordingly, we conclude that Kelly's theory that the alcohol-blood test results are inadmissible under article 38.23, because she did not consent to the blood extraction for medical purposes, is not reasonably supported by the record. We cannot uphold a trial court's ruling on a suppression motion if it is not reasonably supported by the record and is not correct on any theory of law applicable to the case. (Citations omitted).

Kelly, 166 S.W.3d at 916.

19. Because the trial court granted appellee's motion to suppress, the Court of Appeals was required to view the evidence in the light most favorable to the appellee, not the State.

20. See State v. Cullen, 195 S.W.3d 696, 700 (Tex.Cr.App. 2006) (requiring a "trial court to express its findings of fact and conclusions of law when requested by the losing party").

21. This description of the appellate standard of review is consistent with case law. See State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Cr.App. 2000); Carmouche v. State, 10 S.W.3d 323, 328-28 (Tex.Cr.App. 2000); Guzman v. State, 955 S.W.2d 85, 85-89 (Tex.Cr.App. 1997); see also State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Cr.App. 1999) (since trial court made no express fact findings, appellate court was required to infer all necessary fact findings that would support the trial court's ruling). Illustrative of when supported-by-the-record implied fact findings are not dispositive of the trial court's legal ruling is our decision in Terrazas, in which the trial court's supported-by-the-record implied fact finding was not dispositive of the trial court's legal ruling that the defendant's confession was involuntary. See Terrazas, 4 S.W.3d at 725-27. We have also stated that the appellate court should uphold the trial court's decision if it is correct on any theory of law applicable to the case. See Ross, 32 S.W.3d at 855-56; Romero v. State, 800 S.W.2d 539, 543 (Tex.Cr.App. 1990). Appellee has challenged only the Court of Appeals' decision on the issue of her consent to Gosson's blood draw and has not challenged the Court of Appeals' decisions on the alternate legal theories that might have supported the trial court's ruling granting appellee's motion to suppress.

22. It is important to note that appellee had the initial burden to produce evidence to support a finding that she did not consent to Gosson's blood draw. See Ford v. State, 158 S.W.3d 488, 492 (Tex.Cr.App. 2005) (to establish Fourth Amendment violation, defendant bears initial burden of producing evidence to support finding of improper police conduct such as proving that a search occurred without a warrant shifting the burden to the State to establish the validity of the search); Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Cr.App. 1986) (as movant in a Fourth Amendment motion to suppress evidence, defendant must produce evidence that defeats presumption of proper police conduct); Mattei v. State, 455 S.W.2d 761, 766 (Tex.Cr.App. 1970); see also Terrazas, 4 S.W.3d at 725-28 (defendant claiming that her confession was involuntary had burden to present evidence raising a voluntariness question). Unless appellee carried this initial burden, it cannot be argued that the prosecution ever assumed the burden of proof with the risk of nonpersuasion. Compare Terrazas, 4 S.W.3d at 727 (prosecution never assumed burden of proof with risk of nonpersuasion on issue of voluntariness of defendant's confession because defendant did not carry her initial burden to present evidence to support a finding of involuntariness).

23. We also do not read appellee's brief on direct appeal in the Court of Appeals to claim that the evidence supports an implied fact finding that she did not consent to Gosson's blood draw. She argued in her brief on direct appeal:

In the instant case, the evidence, viewed in light most favorable to the State, shows that the appellee passively acquiesced to the hospital's blood draw. Voluntary consent is not shown by a mere acquiescence to authority. (Citations omitted). The State bears the burden of proving voluntary consent by clear and convincing evidence. (Citation omitted). In this case, the State failed to carry that burden.

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS.

2007-02-21T00:03:00.000-08:00

FindLaw | For Legal Professionals | For Corporate Counsel | For Law Students
Register/login to My FindLaw
My current location: Corpus Christi, TX | Change Location

* Home
* Practice Areas
* Jurisdictions
* Cases & Codes
* News
* CLE
* Market Center
* Research a Lawyer

Federal Law | State Law | Case Summaries Search | U.S. Code | Newsletters
<A TARGET="_top" HREF="http://ad.doubleclick.net/click%3Bh=v8/3500/3/0/%2a/u%3B72006960%3B0-0%3B2%3B4618024%3B3454-728/90%3B19852190/19870084/1%3B%3B%7Esscs%3D%3fhttp://trialgraphix.com/default.aspx?pmc=FL-411"><IMG SRC="http://m1.2mdn.net/1376503/trialgraphix_728x90_2.gif" BORDER=0></A>

Resources by Jurisdiction
Click here to find out more!

# View enhanced case on Westlaw
printer Click for Printable version email Email this case
# KeyCite this case on Westlaw
http://laws.findlaw.com/us/388/14.html

Cases citing this case: Supreme Court
Cases citing this case: Circuit Courts
U.S. Supreme Court
WASHINGTON v. TEXAS, 388 U.S. 14 (1967)
388 U.S. 14

WASHINGTON v. TEXAS.
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS.
No. 649.
Argued March 15-16, 1967.
Decided June 12, 1967.

Petitioner and another were charged with a fatal shooting. Petitioner's alleged coparticipant was tried first and convicted of murder. At petitioner's trial for the same murder he sought to secure his coparticipant's testimony which would have been vital for his defense. On the basis of two Texas statutes which at the time of trial prevented a participant accused of a crime from testifying for his coparticipant (but not for the prosecution), the judge sustained the State's objection to the coparticipant's testimony. Petitioner's conviction ensued and was upheld on appeal. Held:

1. The right under the Sixth Amendment of a defendant in a criminal case to have compulsory process for obtaining witnesses in his favor applies to the States through the Fourteenth Amendment. Pp. 17-19.

2. The State arbitrarily denied petitioner the right to have the material testimony for him of a witness concerning events which that witness observed and thus denied him the right to have compulsory process for obtaining witnesses in his favor. Pp. 19-23.

400 S. W. 2d 756, reversed.

Charles W. Tessmer argued the cause for petitioner. With him on the brief was Emmett Colvin, Jr.

Howard M. Fender, Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Crawford C. Martin, Attorney General, George Cowden, First Assistant Attorney General, Robert Lattimore, Assistant Attorney General, and A. J. Carubbi, Jr.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

We granted certiorari in this case to determine whether the right of a defendant in a criminal case under the [388 U.S. 14, 15] Sixth Amendment 1 to have compulsory process for obtaining witnesses in his favor is applicable to the States through the Fourteenth Amendment, 2 and whether that right was violated by a state procedural statute providing that persons charged as principals, accomplices, or accessories in the same crime cannot be introduced as witnesses for each other.

Petitioner, Jackie Washington, was convicted in Dallas County, Texas, of murder with malice and was sentenced by a jury to 50 years in prison. The prosecution's evidence showed that petitioner, an 18-year-old youth, had dated a girl named Jean Carter until her mother had forbidden her to see him. The girl thereafter began dating another boy, the deceased. Evidently motivated by jealousy, petitioner with several other boys began driving around the City of Dallas on the night of August 29, 1964, looking for a gun. The search eventually led to one Charles Fuller, who joined the group with his shotgun. After obtaining some shells from another source, the group of boys proceeded to Jean Carter's home, where Jean, her family and the deceased were having supper. Some of the boys threw bricks at the house and then ran back to the car, leaving petitioner and Fuller alone in front of the house with the shotgun. At the sound of the bricks the deceased and Jean Carter's mother rushed out on the porch to investigate. The shotgun was fired by either petitioner or Fuller, and the [388 U.S. 14, 16] deceased was fatally wounded. Shortly afterward petitioner and Fuller came running back to the car where the other boys waited, with Fuller carrying the shotgun.

Petitioner testified in his own behalf. He claimed that Fuller, who was intoxicated, had taken the gun from him, and that he had unsuccessfully tried to persuade Fuller to leave before the shooting. Fuller had insisted that he was going to shoot someone, and petitioner had run back to the automobile. He saw the girl's mother come out of the door as he began running, and he subsequently heard the shot. At the time, he had thought that Fuller had shot the woman. In support of his version of the facts, petitioner offered the testimony of Fuller. The record indicates that Fuller would have testified that petitioner pulled at him and tried to persuade him to leave, and that petitioner ran before Fuller fired the fatal shot.

It is undisputed that Fuller's testimony would have been relevant and material, and that it was vital to the defense. Fuller was the only person other than petitioner who knew exactly who had fired the shotgun and whether petitioner had at the last minute attempted to prevent the shooting. Fuller, however, had been previously convicted of the same murder and sentenced to 50 years in prison, 3 and he was confined in the Dallas County jail. Two Texas statutes provided at the time of the trial in this case that persons charged or convicted as coparticipants in the same crime could not testify for one another, 4 although there was no bar to their testifying [388 U.S. 14, 17] for the State. 5 On the basis of these statutes the trial judge sustained the State's objection and refused to allow Fuller to testify. Petitioner's conviction followed, and it was upheld on appeal by the Texas Court of Criminal Appeals. 400 S. W. 2d 756. We granted certiorari. 385 U.S. 812 . We reverse.
I.
We have not previously been called upon to decide whether the right of an accused to have compulsory process for obtaining witnesses in his favor, guaranteed in federal trials by the Sixth Amendment, is so fundamental and essential to a fair trial that it is incorporated in the [388 U.S. 14, 18] Due Process Clause of the Fourteenth Amendment. 6 At one time, it was thought that the Sixth Amendment had no application to state criminal trials. 7 That view no longer prevails, and in recent years we have increasingly looked to the specific guarantees of the Sixth Amendment to determine whether a state criminal trial was conducted with due process of law. We have held that due process requires that the accused have the assistance of counsel for his defense, 8 that he be confronted with the witnesses against him, 9 and that he have the right to a speedy 10 and public 11 trial.

The right of an accused to have compulsory process for obtaining witnesses in his favor stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States. This Court had occasion in In re Oliver, 333 U.S. 257 (1948), to describe what it regarded as the most basic ingredients of due process of law. It observed that:

"A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense Ÿ a right to his day in court Ÿ are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel." 333 U.S., at 273 (footnote omitted). [388 U.S. 14, 19]

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
II.
Since the right to compulsory process is applicable in this state proceeding, the question remains whether it was violated in the circumstances of this case. The testimony of Charles Fuller was denied to the defense not because the State refused to compel his attendance, but because a state statute made his testimony inadmissible whether he was present in the courtroom or not. We are thus called upon to decide whether the Sixth Amendment guarantees a defendant the right under any circumstances to put his witnesses on the stand, as well as the right to compel their attendance in court. The resolution of this question requires some discussion of the common-law context in which the Sixth Amendment was adopted.

Joseph Story, in his famous Commentaries on the Constitution of the United States, observed that the right to compulsory process was included in the Bill of Rights in reaction to the notorious common-law rule that in cases of treason or felony the accused was not allowed to introduce witnesses in his defense at all. 12 Although [388 U.S. 14, 20] the absolute prohibition of witnesses for the defense had been abolished in England by statute before 1787, 13 the Framers of the Constitution felt it necessary specifically to provide that defendants in criminal cases should be provided the means of obtaining witnesses so that their own evidence, as well as the prosecution's, might be evaluated by the jury.

Despite the abolition of the rule generally disqualifying defense witnesses, the common law retained a number of restrictions on witnesses who were physically and mentally capable of testifying. To the extent that they were applicable, they had the same effect of suppressing the truth that the general proscription had had. Defendants and codefendants were among the large class of witnesses disqualified from testifying on the ground of interest. 14 A party to a civil or criminal case was not allowed to testify on his own behalf for fear that he might be tempted to lie. Although originally the disqualification of a codefendant appears to have been based only on his status as a party to the action, and in some jurisdictions co-indictees were allowed to testify for or against each other if granted separate trials, 15 other jurisdictions came to the view that accomplices or co-indictees were incompetent to testify at least in favor of each other even at separate trials, and in spite of statutes making a defendant competent to testify in his own behalf. 16 [388 U.S. 14, 21] It was thought that if two persons charged with the same crime were allowed to testify on behalf of each other, "each would try to swear the other out of the charge." 17 This rule, as well as the other disqualifications for interest, rested on the unstated premises that the right to present witnesses was subordinate to the court's interest in preventing perjury, and that erroneous decisions were best avoided by preventing the jury from hearing any testimony that might be perjured, even if it were the only testimony available on a crucial issue. 18

The federal courts followed the common-law restrictions for a time, despite the Sixth Amendment. In United States v. Reid, 12 How. 361 (1852), the question was whether one of two defendants jointly indicted for murder on the high seas could call the other as a witness. Although this Court expressly recognized that the Sixth Amendment was designed to abolish some of the harsh rules of the common law, particularly including the refusal to allow the defendant in a serious criminal case to present witnesses in his defense, 19 it held that the rules of evidence in the federal courts were those in force in the various States at the time of the passage of the Judiciary Act of 1789, including the disqualification of defendants indicted together. The holding in United States v. Reid was not satisfactory to later generations, however, and in 1918 this Court expressly overruled it, [388 U.S. 14, 22] refusing to be bound by "the dead hand of the common-law rule of 1789," and taking note of "the conviction of our time that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court . . . ." Rosen v. United States, 245 U.S. 467, 471 .

Although Rosen v. United States rested on nonconstitutional grounds, we believe that its reasoning was required by the Sixth Amendment. In light of the common-law history, and in view of the recognition in the Reid case that the Sixth Amendment was designed in part to make the testimony of a defendant's witnesses admissible on his behalf in court, it could hardly be argued that a State would not violate the clause if it made all defense testimony inadmissible as a matter of procedural law. It is difficult to see how the Constitution is any less violated by arbitrary rules that prevent whole categories of defense witnesses from testifying on the basis of a priori categories that presume them unworthy of belief.

The rule disqualifying an alleged accomplice from testifying on behalf of the defendant cannot even be defended on the ground that it rationally sets apart a group of persons who are particularly likely to commit perjury. The absurdity of the rule is amply demonstrated by the exceptions that have been made to it. For example, the accused accomplice may be called by the prosecution to testify against the defendant. 20 Common sense would suggest that he often has a greater interest in lying in favor of the prosecution rather than against it, especially if he is still awaiting his own trial or sentencing. To think that criminals will lie to save their fellows but not to obtain favors from the prosecution [388 U.S. 14, 23] for themselves is indeed to clothe the criminal class with more nobility than one might expect to find in the public at large. Moreover, under the Texas statutes the accused accomplice is no longer disqualified if he is acquitted at his own trial. Presumably, he would then be free to testify on behalf of his comrade, secure in the knowledge that he could incriminate himself as freely as he liked in his testimony, since he could not again be prosecuted for the same offense. The Texas law leaves him free to testify when he has a great incentive to perjury, and bars his testimony in situations where he has a lesser motive to lie.

We hold that the petitioner in this case was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense. 21 The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use. The judgment of conviction must be reversed.

It is so ordered.

Footnotes
[ Footnote 1 ] "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

[ Footnote 2 ] "[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . ."

[ Footnote 3 ] See Fuller v. State, 397 S. W. 2d 434 (Tex. Crim. App. 1966).

[ Footnote 4 ] "Persons charged as principals, accomplices or accessories, whether in the same or by different indictments, can not be introduced as witnesses for one another, but they may claim a severance, and if one or more be acquitted they may testify in behalf of the others." Tex. Pen. Code, Art. 82.

"Persons charged as principals, accomplices or accessories, whether in the same or different indictments, cannot be introduced as witnesses [388 U.S. 14, 17] for one another, but they may claim a severance; and, if any one or more be acquitted, or the prosecution against them be dismissed, they may testify in behalf of the others." Tex. Code Crim. Proc., Art. 711 (1925).

These statutory provisions were apparently repealed by implication by Art. 36.09 of the Texas Code of Criminal Procedure of 1965, which became effective after petitioner's trial. Article 36.09 provides that "Two or more defendants who are jointly or separately indicted or complained against for the same offense or an offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the State . . . ."

Counsel have cited no statutes from other jurisdictions, and we have found none, that flatly disqualify coparticipants in a crime from testifying for each other regardless of whether they are tried jointly or separately. To be distinguished are statutes providing that one of two or more defendants tried jointly may, if the evidence against him is insufficient, be entitled to an immediate acquittal so he may testify for the others. These statutes seem designed to allow such joint defendants to testify without incriminating themselves. See, e. g., Ala. Code, Tit. 15, 309 (1958); Alaska Code Crim. Proc. 12.20.060 (1962); Kan. Gen. Stat. Ann. 62-1440 (1964).

[ Footnote 5 ] Rangel v. State, 22 Tex. Ct. App. 642, 3 S. W. 788 (1887).

[ Footnote 6 ] "[A] provision of the Bill of Rights which is `fundamental and essential to a fair trial' is made obligatory upon the States by the Fourteenth Amendment." Gideon v. Wainwright, 372 U.S. 335, 342 (1963).

[ Footnote 7 ] See West v. Louisiana, 194 U.S. 258, 264 (1904).

[ Footnote 8 ] Gideon v. Wainwright, 372 U.S. 335 (1963).

[ Footnote 9 ] Pointer v. Texas, 380 U.S. 400 (1965).

[ Footnote 10 ] Klopfer v. North Carolina, 386 U.S. 213 (1967).

[ Footnote 11 ] In re Oliver, 333 U.S. 257 (1948).

[ Footnote 12 ] 3 Story, Commentaries on the Constitution of the United States 1786-1788 (1st ed. 1833).

[ Footnote 13 ] By 1701 the accused in both treason and felony cases was allowed to produce witnesses who could testify under oath. See 2 Wigmore, Evidence 575, at 685-686 (3d ed. 1940).

[ Footnote 14 ] See generally 2 Wigmore 575-576 (3d ed. 1940). We have discussed elsewhere the gradual demise of the common-law rule prohibiting defendants from testifying in their own behalf. See Ferguson v. Georgia, 365 U.S. 570 (1961).

[ Footnote 15 ] See 2 Wigmore 580, at 709-710 (3d ed. 1940); Henderson v. State, 70 Ala. 23, 24-25 (Dec. Term 1881); Allen v. State, 10 Ohio St. 287, 303 (Dec. Term 1859).

[ Footnote 16 ] See Foster v. State, 45 Ark. 328 (May Term 1885); State v. Drake, 11 Ore. 396, 4 Pac. 1204 (1884). Both cases have been overturned by statute. Ark. Stat. Ann. 43-2017 (1947); Ore. Rev. Stat. 139.315 (1965).

[ Footnote 17 ] Benson v. United States, 146 U.S. 325, 335 (1892).

[ Footnote 18 ] "Indeed, the theory of the common law was to admit to the witness stand only those presumably honest, appreciating the sanctity of an oath, unaffected as a party by the result, and free from any of the temptations of interest. The courts were afraid to trust the intelligence of jurors." Benson v. United States, 146 U.S. 325, 336 (1892).

[ Footnote 19 ] 12 How., at 363-364.

[ Footnote 20 ] See n. 5, supra.

[ Footnote 21 ] Nothing in this opinion should be construed as disapproving testimonial privileges, such as the privilege against self-incrimination or the lawyer-client or husband-wife privileges, which are based on entirely different considerations from those underlying the common-law disqualifications for interest. Nor do we deal in this case with nonarbitrary state rules that disqualify as witnesses persons who, because of mental infirmity or infancy, are incapable of observing events or testifying about them.

MR. JUSTICE HARLAN, concurring in the result.

For reasons that I have stated in my concurring opinion in Gideon v. Wainwright, 372 U.S. 335, 349 , and in my opinion concurring in the result in Pointer v. Texas, [388 U.S. 14, 24] 380 U.S. 400, 408 , and in my dissenting opinion in Poe v. Ullman, 367 U.S. 497, 539 -545, I cannot accept the view that the Due Process Clause of the Fourteenth Amendment "incorporates," in its terms, the specific provisions of the Bill of Rights. In my view the Due Process Clause is not reducible to "a series of isolated points," but is rather "a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . ." Poe v. Ullman, supra, at 543; see Palko v. Connecticut, 302 U.S. 319 ; Klopfer v. North Carolina, 386 U.S. 213, 226 (opinion concurring in the result).

I concur in the result in this case because I believe that the State may not constitutionally forbid the petitioner, a criminal defendant, from introducing on his own behalf the important testimony of one indicted in connection with the same offense, who would not, however, be barred from testifying if called by the prosecution. Texas has put forward no justification for this type of discrimination between the prosecution and the defense in the ability to call the same person as a witness, and I can think of none.

In my opinion this is not, then, really a problem of "compulsory process" at all, although the Court's incorporationist approach leads it to strain this constitutional provision to reach these peculiar statutes. Neither is it a situation in which the State has determined, as a matter of valid state evidentiary law, on the basis of general experience with a particular class of persons, as for example, the mentally incompetent 1 or those previously convicted of perjury, 2 that the pursuit of [388 U.S. 14, 25] truth is best served by an across-the-board disqualification as witnesses of persons of that class. Compare Spencer v. Texas, 385 U.S. 554 . This is rather a case in which the State has recognized as relevant and competent the testimony of this type of witness, but has arbitrarily barred its use by the defendant. This, I think, the Due Process Clause forbids.

On this premise I concur in the reversal of the judgment of conviction.

[ Footnote 1 ] E. g., Cal. Civ. Proc. Code 1880, subd. 1; Cal. Pen. Code 1321.

[ Footnote 2 ] E. g., Vermont Stat. Ann., Tit. 12, 1608. See generally 2 Wigmore, Evidence 488 (3d ed. 1940). [388 U.S. 14, 26]

Sponsored Links

FirmFinance™: provides revolving and term loans of up to $25 million dollars, based on the collateral value of your firm's portfolio of active cases.
U.S. Legal Forms, Inc.: **Over 36,000 Legal Forms** Stop Reinventing the Wheel each time you draft a legal document. Save Time and Money! Visit USlegalforms.com Today!
Online Legal Document Services: Bill More, Work Less. Let LegalZoom take care of your document preparation. Incorporations, LLCs, Trademark Searches, and more.
Amicus Attorney: the world's leading practice management software for law firms. FREE TRIAL.
AbacusLaw: Complete law office software for time, billing, accounting, calendars, clients and cases. Quick to learn, easy to use. Free demo!
Tabs3 and PracticeMaster: Reliable billing and practice management software for solo to mid-sized firms. Support satisfaction is over 95%

Ads by Google
Free Windows Vista ®
Get a Free Copy of Microsoft Vista® Act Now - Free Offer Ends Today!
www.FreeSoftwareGifts.com
Ie Sp2
Find great deals and save! Compare products, prices & stores.
www.Shopping.com
Reporting Services Gurus
Microsoft Certified developers .Net, Sql Server, Analysis Services
www.MandSConsulting.com

Click here to find out more!
Featured Advertisers
LexisNexis Time Matters 8.0 Use Time Matters 8.0 and exceed client expectations with a complete view of your practice.
Find a Lawyer Our free service locates Bankruptcy, Criminal, DUI, Family, Immigration, Personal Injury, Real Estate, or Trademark lawyers in your area.
Legal Technology Center Law technology articles, legal technology event listings, e-discovery information and more.
Thomson Legal Record View an attorney's litigation history on Westlaw next to the attorney's profile on FindLaw.
Lawyer Marketing Web sites, attorney written custom content, visibility on FindLaw.com, search engine optimization.
Premium Sponsors
Legal Technology CenterThomson Legal Record
Copyright © 1994-2007 FindLaw, a Thomson business
Help | Site Map | Contact Us | Media Kit | About Us | FindLaw Local | Disclaimer | Privacy Policy

thefact that Citibank, because it enjoyed the benefit of titleinsurance, never ran a risk of losing anything.......

2007-02-14T00:22:00.000-08:00

United States Court of Appeals

For the First Circuit

No. 98-1976

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE E. ALEGRIA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. P‚rez-Gim‚nez, U.S. District Judge]

Before

Selya, Boudin and Lipez,

Circuit Judges.

Alan M. Dershowitz, with whom Nathan Z. Dershowitz, Amy

Adelson, and Dershowitz & Eiger, P.C. were on brief, for appellant.

Jorge E. Vega-Pacheco, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, and Nelson P‚rez-Sosa,

Assistant United States Attorney, were on brief, for appellee.

September 30, 1999

SELYA, Circuit Judge. This appeal requires us, inter

alia, to explore the circumstances in which the government may be

compelled to move for a downward departure under USSG 5K1.1. We

conclude that the district court did not err either in refusing to

force the government to take such action or in any other material

respect. Consequently, we affirm.

I

A federal grand jury indicted defendant-appellant Jos‚ E.

Alegr¡a on sixteen counts of filing false statements with financial

institutions, 18 U.S.C. 1014, and bank fraud, 18 U.S.C. 1344.

He entered into a plea agreement with the government (the

Agreement), pled guilty to all charges, and met twice with

government agents pursuant to a promise to cooperate. We have no

detailed account of these debriefing sessions, but the appellant

states in a declaration (filed below in connection with his motion

for an evidentiary hearing) that he furnished the government with

whatever information he possessed concerning wrongdoing at the

financial institutions with which he was associated.

Despite the appellant's cooperation, the prosecutor

elected not to file a downward departure motion. The appellant

asserted that the prosecutor's decision contravened the Agreement

and, in the bargain, violated due process. The sentencing court

rejected these animadversions, see United States v. Alegr¡a, 3 F.

Supp. 2d 151 (D.P.R. 1998), denied the appellant's motion for an

evidentiary hearing, and proceeded to impose a 30-month

incarcerative sentence. In this forum, the appellant continues to

press his claim that the government wrongly refused to file a

downward departure motion and embellishes it with a challenge to

the lower court's calculation of his guideline sentencing range.

II

We start with the appellant's major premise: that the

government obligated itself to file a downward departure motion by

virtue of promises it made during the negotiations that led up to

the execution of the Agreement and in the Agreement itself. For

argument's sake, we take the facts from the appellant's

declaration.

After the indictment was returned and the appellant

entered a "not guilty" plea, the parties began discussing the

possibility of a plea bargain. In his declaration, the appellant

states that he had misgivings about whether the United States

Attorney's office would reward cooperation with a favorable

sentencing recommendation (he traces these misgivings to a previous

case in which the United States Attorney allegedly made similar

overtures to another bank executive, but subsequently reneged), and

therefore arranged to meet personally with Guillermo Gil, the

United States Attorney for the District of Puerto Rico, prior to

settling upon a course of action. According to the appellant, Gil

assured him (in the presence of his then-counsel) that if he would

"tell the truth, be available, and cooperate," the government would

move for a departure under USSG 5K1.1 (permitting a sentencing

court to depart downward on the prosecution's motion, based on a

defendant's "substantial assistance"). The appellant asserts that

this specific representation persuaded him to sign the Agreement

and change his plea. Hence, he asks that we hold the government to

Gil's word.

As a general rule, nothing precludes a prosecutor from

bargaining away something over which he has discretion in return

for promises extracted from a criminal defendant. See United

States v. Doe, 170 F.3d 223, 226 (1st Cir. 1999); United States v.

Hernandez, 17 F.3d 78, 82 (5th Cir. 1994). Relatedly, a binding

prosecutorial representation that is accepted by a defendant and

becomes the basis for a change of plea must be performed. See

Santobello v. New York, 404 U.S. 257, 262 (1971) (holding that

"when a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of

the inducement or consideration, [the] promise must be fulfilled").

In the appellant's view, these uncontroversial axioms carry the

day.

But this conclusion depends entirely on the assumption

that what Gil allegedly said has legal force and that assumption

stands on shaky ground because the Agreement, which purports to

encompass the sum and substance of the arrangement between the

parties, was signed after Gil allegedly made the crucial

representation and contains no reference to it. The essential and

logically prior question, then, is whether the representation, even

if made, survives execution of the Agreement.

A

Courts customarily treat plea agreements, for purposes of

construction, more or less in the same manner as they do contracts.

See United States v. Atwood, 963 F.2d 476, 479 (1st Cir. 1992);

United States v. Anderson, 921 F.2d 335, 337-38 (1st Cir. 1990).

We say "more or less" because this analogy has its limitations.

See United States v. Hogan, 862 F.2d 386, 388 (1st Cir. 1988)

(observing that plea agreements are similar to commercial

contracts, but only "in certain respects"). Thus, although

contract law supplies a useful reference point for construing plea

agreements in federal criminal cases, such agreements are not

governed by the law of contracts. See United States v. Kelly, 18

F.3d 612, 616 (8th Cir. 1994).

If a plea agreement unambiguously resolves an issue, that

usually ends the judicial inquiry. See id.; Anderson, 921 F.2d at

338. If, however, a plea agreement lacks clarity or is manifestly

incomplete, the need to disambiguate may justify resort to

supplementary evidence or other interpretive aids. See Anderson,

921 F.2d at 338. We examine the text of the Agreement in light of

this dichotomy.

The appellant calls our attention to paragraph 8 of the

Agreement, which embodies his pledge to "cooperate fully and

truthfully with the United States." After spelling out the

elements of this cooperation which include the typical assurances

that the appellant will remain available for debriefing, appear as

a witness, speak truthfully, provide documents, and so forth the

paragraph explains that he is not expected to "make a case" against

anyone. This is a shorthand way of saying that the government's

obligations under the Agreement are not conditioned upon the

achievement of any particular objective (e.g., the conviction of

some other person), but, in the language of the Agreement, "only

upon [Alegr¡a] providing full, complete and truthful cooperation."

The appellant maintains that this phraseology imports the United

States Attorney's oral representation into the Agreement. We think

that this is a more ambitious reading of the passage than either

the text or the surrounding circumstances allow.

USSG 5K1.1 provides the background understanding against

which the parties signed the Agreement and through which their

arguments must be filtered. See United States v. Huang, 178 F.3d

184, 187-89 (3d Cir. 1999). The appellant's construction

contemplates an equivalency between "full, complete and truthful

cooperation," on the one hand, and "substantial assistance," on the

other. But the language and structure of section 5K1.1 belie the

idea that "full, complete and truthful cooperation" necessarily

constitutes "substantial assistance." The guideline suggests five

non-exclusive factors that a court should consider when deciding

whether it will grant a prosecutor's motion for a downward

departure predicated on a defendant's substantial assistance. See

USSG 5K1.1(a)(1)-(5). Full, complete and truthful cooperation

corresponds to only one of these five factors. See id.

5K1.1(a)(2). The others include things well beyond the purview of

cooperation per se, such as the significance and utility of the

information provided, id. 5K1.1(a)(1), the nature and extent of

the defendant's assistance, id. 5K1.1(a)(3), and the timeliness of

the proffer, id. 5K1.1(a)(5). In short, full, complete and

truthful cooperation, in and of itself, is not coextensive with the

substantial assistance of which the sentencing guidelines speak.

In the case at bar, the Agreement, read as a whole,

plainly was meant to be understood in terms of the general approach

limned in section 5K1.1. Although conditioned on the appellant's

conformance with paragraph 8, nothing in the text of the Agreement

suggests that the parties agreed either to collapsing the

substantial assistance determination into the relatively narrow

confines of paragraph 8 or to some other special definition of

substantial assistance. This point is made pellucid by paragraph

11, which memorializes the appellant's express agreement that "the

United States' decision whether to file a motion based on

'substantial assistance' as that phrase is used in Rule 35(b) of

the Federal Rules of Criminal Procedure and Section 5K1.1 of the

Sentencing Guidelines and Policy Statements . . . rests in the sole

discretion of the United States," and further provides that

disputes about that decision will not be referred to the district

court.

The obvious implication of this explicit reference to

section 5K1.1 is that the prosecutor will take into account all the

factors delineated in that guideline when determining whether to

move for a downward departure and those factors, as we have

noted, go well beyond full, complete and truthful cooperation. In

this way, the Agreement makes it quite clear that compliance with

the covenants contained in paragraph 8 constitutes a necessary, but

not an independently sufficient, precondition to the filing of a

section 5K1.1 motion. Moreover, the reference in paragraph 11 to

Fed. R. Crim. P. 35(b) bolsters, rather than weakens, this

conclusion: with regard to the meaning of "substantial

assistance," Rule 35(b) and USSG 5K1.1 are birds of a feather.

See United States v. Gangi, 45 F.3d 28, 30 (2d Cir. 1995).

The appellant's exhortation that our decision in Doe, 170

F.3d 223, points in a different direction is easily dispatched.

Although the Doe court spoke of internal "tension" within the

contours of a plea agreement, that tension related to a completely

different problem: the plea agreement purported to preserve the

government's absolute discretion in regard to section 5K1.1

motions, but at the same time stated that "the defendant's failure

to 'make a case' shall not relieve the government of exercising its

discretion" under section 5K1.1. Id. at 226. The government

decided not to file a downward departure motion because Doe's

assistance "came too late." Id. In that situation, we suggested

that the government's performance arguably conflicted with the

assurance contained in the plea agreement. Concerned that the

government may have declined to file a section 5K1.1 motion because

Doe's help had come "too late" to permit it to "make a case"

against a third party, we found some tension between what the

government said it would do (i.e., not peg the substantial

assistance determination on whether Doe had made a case against

someone) and what it actually did. See id.

There is a critical difference between this case and Doe.

The Agreement sub judice does not tie the government's exercise of

its section 5K1.1 discretion to whether the defendant has (or has

not) made a case against a third party, and thus does not contain

the language that caused the contretemps in Doe. What is more, Doe

does not in any way intimate that the mere inclusion of a

cooperation clause in a plea agreement somehow circumscribes ex

proprio vigore the government's discretion anent the filing of such

motions. Indeed, Doe never argued (as Alegr¡a does) that

cooperation, if rendered, mandates the filing of a section 5K1.1

motion.

We have said enough on this score. The short of it is

that the concepts of "full, complete and truthful cooperation" and

"substantial assistance" are neither congruent nor interchangeable,

and the plain text of paragraph 11 refutes the appellant's

contention that the parties expressly modified this basic

understanding. Consequently, the government's election not to file

a section 5K1.1 motion did not violate the stated terms of the

Agreement.

B

The appellant has a fallback position. He invites us to

supplement the Agreement by engrafting onto it the oral

representation allegedly made by the United States Attorney during

the pre-plea negotiations. We decline the invitation.

The appellant's position flies in the teeth of paragraph

22 of the Agreement, which states flatly that the written document

constitutes the complete agreement between the parties and that the

"United States has made no promises or representations except as

set forth in writing in this plea agreement and deny [sic] the

existence of any other terms and conditions not stated herein."

Where, as here, an unambiguous plea agreement contains an

unqualified integration clause, it normally should be enforced

according to its tenor. That means, of course, that an inquiring

court should construe the written document within its four corners,

"unfestooned with covenants the parties did not see fit to

mention." Anderson, 921 F.2d at 338.

In United States v. Burns, 160 F.3d 82, 83 (1st Cir.

1998), we decisively rejected a similar attempt by a defendant to

read into a written plea agreement an implied constraint on the

government. Burns, in the course of appealing the district court's

enhancement of his sentence under a guideline provision, argued

that a clause in the plea agreement which restrained the government

from recommending such an increase "at sentencing" implied a duty

not to oppose Burns's effort to set aside the increase on appeal.

See id. at 83. We rejected this argument, explaining that the

government's promise simply did not go so far. See id. Moreover,

we admonished that "significant plea-agreement terms should be

stated explicitly and unambiguously." Id. Alegr¡a, in effect,

asks us to ignore the obvious wisdom of the Burns court's

admonition and to read into the Agreement a representation that

nowhere appears in the text. We are unwilling to freelance in this

fashion. See id. (warning that the defense, like the prosecution,

"must be alert to the need for clear and explicit articulation of

all pertinent terms in any plea agreement").

Two other considerations buttress the government's

position that the Agreement should be read as written. In the

first place, soft-pedaling the integration clause and slipping an

antecedent oral promise into the text would render other of the

Agreement's relevant passages, such as paragraph 11, entirely

nugatory. And this would contravene the rule that plea agreements,

like contracts generally, should be construed where possible to

give effect to every term and phrase. See Feinberg v. Insurance

Co. of N. Am., 260 F.2d 523, 527 (1st Cir. 1958) ("In construing a

contract, we must give reasonable effect to all terms whenever

possible.").

In the second place, inserting a new promise into the

Agreement would turn the change-of-plea colloquy into a farce. At

that time, the district court placed the appellant (who was

assisted by counsel and does not question their effectiveness)

under oath and carefully questioned him. See generally Fed. R.

Crim. P. 11(e). The appellant assured the court that the

prosecution had made no promises to him apart from those that were

written explicitly into the Agreement. Although Alegr¡a's

appellate counsel tries to slough this off as a legal fiction and

admonishes us that all defendants prevaricate during change-of-plea

colloquies, courts cannot operate on the assumption that parties

feel free to lie with impunity in response to a judge's

interrogation. We believe, therefore, that a defendant who asserts

a fact in answer to a judge's question during a change-of-plea

proceeding ought to be bound by that answer, absent exceptional

circumstances (say, for example, the emergence of newly discovered

evidence that places what was reasonably thought to be a fact in a

different light). See, e.g., United States v. Doyle, 981 F.2d 591,

594 (1st Cir. 1992); United States v. Butt, 731 F.2d 75, 80 (1st

Cir. 1984). We see no reason either to deviate today from this

salutary rule or to give the appellant the benefit of the long-odds

exception to it.

The appellant attempts in several ways to denigrate the

effect of the integration clause and the other circumstances we

have mentioned. Citing United States v. Rounsavall, 128 F.3d 665,

668-69 (8th Cir. 1997), he argues that oral representations

routinely are used to augment written plea agreements. That case

(in which the precise wording of the plea agreement is never

discussed) simply does not stand for the proposition that prior

oral representations may trump unambiguous language in a plea

agreement that expressly purports to be integrated. Moreover, the

same court elsewhere has indicated that it will rely on extrinsic

evidence only when, after considering a plea agreement as a whole,

the parties' intent remains ambiguous. See Kelly, 18 F.3d at 616.

The appellant also cites United States v. Leonard, 50

F.3d 1152 (2d Cir. 1995), for the same proposition. The case makes

no such holding. While the plea agreement there apparently

contained an integration clause, the only relevant issue before the

appellate court concerned a much different question: the good

faith vel non of the government's decision not to move for a

downward departure. See id. at 1157-58. So, too, for obvious

reasons, we find inapposite the appellant's citations to a line of

cases in which courts have deemed terms outlined in transmittal

letters accompanying plea agreements to be part and parcel of those

agreements. See, e.g., United States v. Garcia, 956 F.2d 41, 44

(4th Cir. 1992); United States v. Melton, 930 F.2d 1096, 1098-99

(5th Cir. 1991).

When all is said and done, the Agreement's integration

clause paragraph 22 withstands the appellant's bombardment.

Accordingly, we hold that it is not reasonable for Alegr¡a to seek

the benefit of a prior oral representation by the government after

he signed a fully integrated writing that did not contain the

claimed representation, and expressly affirmed to the district

court in the change-of-plea colloquy that he had not been

influenced by extrinsic representations of any kind.

C

Although the plain language of the Agreement provides no

succor and the effort to supplement it fails, the appellant tries

an end run. He posits that, in construing plea agreements, courts

should imply a duty of good faith in performance. Thus, even

though a plea agreement states unambiguously as this one does

that the government retains absolute discretion with respect to the

filing of a section 5K1.1 motion, the accused is entitled to expect

that the government will honestly evaluate the appropriateness of

seeking a downward departure. In his peroration, the appellant

asserts that the government thwarted this expectation and that the

district court erred by not holding an evidentiary hearing.

This argument is not new. United States v. Garcia, 698

F.2d 31 (1st Cir. 1983) not cited to us by either the appellant

or the government deals effectively with it. That case arose

before the sentencing guidelines (and, hence, section 5K1.1) went

into effect. It involved a written, fully integrated plea

agreement in which the government promised, in its discretion, to

make a lenient recommendation at sentencing if the defendant's

cooperation were complete and truthful. See id. at 35 n.3. We

concluded that allowing the government to retain absolute

discretion in these circumstances would "render a significant

element of the consideration for appellant's change of plea

illusory." Id. at 36. We lent substance to this element by

requiring the government "to show a good faith consideration of

[the defendant's] cooperation," that is, "to set forth in the

record sufficient reasons for its belief that [the defendant] has

not cooperated fully and that . . . a recommendation [of probation]

is not proper." Id. at 35 (quoting decision below).

To be sure, given the passage of time, the emergence of

the federal sentencing guidelines, and the Court's decision in Wade

v. United States, 504 U.S. 181 (1992), Garcia is arguably

distinguishable. But we think that its central concept that the

government must perform in good faith the discretionary obligations

that it affirmatively undertakes in a plea agreement remains good

law. Of course, this does not mean that courts can add material

conditions to plea agreements. See, e.g., Garcia, 698 F.2d at 36

(emphatically eschewing such a course). Nor does it mean that

every challenge to the government's good faith necessitates

protracted proceedings. The government's burden of showing good

faith is only a burden of production, not of persuasion. As long

as the government satisfies this modest burden, the trial court

need go no further unless the defendant makes a substantial

threshold showing that the government acted in bad faith. See

Kelly, 18 F.3d at 618; United States v. Khan, 920 F.2d 1100, 1106

(2d Cir. 1990); cf. United States v. Catalucci, 36 F.3d 151, 154

(1st Cir. 1994).

A myriad of practical, commonsense considerations

recommend this approach. We mention five of them. First, for a

court to inquire into the adequacy of a defendant's performance

under a plea agreement and assess the good faith of the

prosecutor's evaluation, it likely will need to delve into

sensitive matters a course that ineluctably will have a

disruptive effect on the prosecutorial function. Second, the

quantum of knowledge about ongoing investigations that is necessary

to make an informed decision often may be very high and the process

of acquiring that knowledge may be very time-consuming. Third, an

uncontrolled good faith exception will provide criminal defendants,

after the fact, with virtual carte blanche. Many of them, having

little to lose, will depict their performance glowingly, inviting

district courts to regard the prosecution's contrary statements as

pretextual (thus prompting further inquiry). We doubt that a

proliferation of such collateral litigation would square either

with the Supreme Court's decision in Wade, 504 U.S. at 185-87, or

with the orderly administration of the criminal justice system.

Fourth, recognizing a duty of good faith on the prosecutor's part

creates possibilities for opportunism in a manner that threatens to

countermand the goals of the criminal law and these possibilities

multiply as the ground rules for such challenges become more lax.

We made this point emphatically in Doe, when we explained that

"[d]efendants, asked for information to incriminate others, have

good reasons to fear for their safety and, unless the prosecutor

holds the whip hand, the defendant may offer up some information

and hold back the more vital balance in the hope that the court

will find the government 'unreasonable' and infer 'bad faith.'"

Doe, 170 F.3d at 225. Thus, diminishing the bite of the whip

through overzealous enforcement of the duty of good faith would be

counterproductive. Finally, the path that we have mapped out

comports with our oft-stated belief that, in criminal cases,

evidentiary hearings should be the exception, not the rule:

We have repeatedly stated that, even in the

criminal context, a defendant is not entitled

as of right to an evidentiary hearing on a

pretrial or posttrial motion. Thus, a party

seeking an evidentiary hearing must carry a

fairly heavy burden of demonstrating a need

for special treatment.

United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993)

(citations omitted); accord United States v. Isom, 85 F.3d 831, 838

(1st Cir. 1996).

In this case, the pertinent portion of the plea agreement

is the government promise to consider whether the appellant had

rendered substantial assistance, and, thus, merited a section 5K1.1

motion. See supra Parts II(A)-(B). This commitment carried with

it an obligation to evaluate the appellant's assistance in good

faith (although the "sole discretion" language in which the promise

was couched informed the nature of the obligation). The government

proffered facially adequate reasons for its conclusion that the

appellant had failed to achieve the substantial assistance

benchmark: the supplied information was "[on] occasions . . .

hearsay and on others . . . just too meager," and also included

"self-serving rationalizations" (a characterization that the

government punctuated with a telling example). This rejoinder

satisfied the government's burden of production. Taken at face

value, the appellant's counter-proffer showed that he attended two

debriefing sessions with FBI agents and that he was responsive and

truthful. He described in some detail information that he gave

regarding alleged kickbacks received by a certain bank officer, and

referred the government agents to a company that had been

transferring large sums of money between Puerto Rico and the

Dominican Republic under suspicious circumstances.

We do not believe that the district court erred in

deeming this proffer insufficient to warrant further proceedings.

Although the appellant professes to be sanguine about the value of

the information that he furnished, the record contains no

indication that any of it was useful to the government. By like

token, the appellant wholly fails to explain how this information

relates to any ongoing criminal investigation. The lower court

therefore lacked any kind of reliable framework within which it

could even begin to assess whether this "assistance" helped the

government to any degree, let alone whether it proved

"substantial."

In a last gasp, the appellant calumnizes the government's

failure to respond to information contained in a supplementary

letter that he transmitted. We need not linger over this

correspondence. The appellant again fails to show how that

information was any more useful than the material cited in his

declaration. In addition, we explained in Doe that the

government's failure to pursue such information, without more,

amounts at most to carelessness and does not suffice to make out a

case of bad faith. See Doe, 170 F.3d at 225-26.

To say more on this point would be supererogatory. We

review the district court's decision as to whether to go further,

that is, whether to convene an evidentiary hearing on the issue of

the government's good faith, for abuse of discretion. See David v.

United States, 134 F.3d 470, 477 (1st Cir. 1998). Stripped of

rhetorical flourishes, the appellant offers a wealth of conclusory

assertions, but no persuasive evidence of either substantial

assistance or bad faith. On this gossamer record, we cannot

conclude that the sentencing court abused its discretion in ruling

that the appellant failed to attain the requisite threshold. It

follows inexorably that the government did not breach the duty of

good faith in performance that due process imposes.

D

The appellant's final departure-related argument is that,

if the absence of a government motion places section 5K1.1 beyond

his reach, the district court, given his cooperation, nonetheless

should have departed downward under the general departure

guideline, USSG 5K2.0. See generally Koon v. United States, 518

U.S. 81, 94-95 (1996) (discussing the circumstances in which

departures under 5K2.0 are proper); United States v. Dethlefs, 123

F.3d 39, 44 (1st Cir. 1997) (same). We need not linger over this

importuning. The three courts of appeals that have addressed the

question since Koon agree that section 5K1.1 occupies the field and

that departures for substantial assistance, however labeled, are

available only under section 5K1.1. See In re Sealed Case, 181

F.3d 128, 140-42 (D.C. Cir. 1999); United States v. Solis, 169 F.3d

224, 227 (5th Cir. 1999), petition for cert. filed, ___ U.S.L.W.

___ (U.S. June 3, 1999) (No. 98-9623); United States v. Abuhouran,

161 F.3d 206, 213 (3d Cir. 1998), cert. denied, 119 S. Ct. 1479

(1999).

We had left the question open in a pre-Koon case. See

United States v. Romolo, 937 F.2d 20, 25 (1st Cir. 1991). We now

answer it, adopt the reasoning of our sister circuits, and hold

that a defendant's assistance to the prosecutor cannot serve as the

basis for a section 5K2.0 departure. By necessary implication,

then, the district court did not err in refusing to depart downward

based on Alegr¡a's cooperation.

III

We turn last to the calculations underpinning the

appellant's sentence. For economic crimes like bank fraud, amount

of loss is a critical component in formulating the guideline

sentencing range. See, e.g., United States v. Rostoff, 53 F.3d

398, 407-08 (1st Cir. 1995); United States v. Tardiff, 969 F.2d

1283, 1285 (1st Cir. 1992). The appellant claims that the district

court erred in calculating the pecuniary losses caused by his

conduct. Because this challenge cannot be divorced from the facts,

we sketch the contours of the offenses of conviction. As is the

custom in sentencing appeals, we draw our factual insights from the

change-of-plea colloquy, the presentence investigation report, and

the transcript of the disposition hearing. See, e.g., United

States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991). In this case,

moreover, we also have the benefit of our opinion in related

litigation. See Sheils Title Co. v. Commonwealth Land Title Ins.

Co., 184 F.3d 10 (1st Cir. 1999).

The appellant served as the president of Bankers Finance

Mortgage Corporation (BFMC). In the ordinary course of its

business, BFMC made residential mortgage loans. Many of these

loans were refinancings. In such a refinancing, BFMC's business

plan called for it to pay off the borrower's existing first

mortgage and make a new loan secured by a new first mortgage. It

then bundled groups of these loans and peddled the packages to

large financial institutions (most prominently, Citibank), in each

case representing that the purchaser would receive the functional

equivalent of a first mortgage, viz., an assignment of BFMC's first

mortgage. When a loan was sold, BFMC would send the purchaser an

assignment and a certificate of title insurance. Simultaneously,

BFMC would notify the borrower to make future payments directly to

the purchaser. The purchaser would then pay the agreed purchase

price to BFMC.

The major snag in this scenario was that, in certain

instances, BFMC never paid off the original mortgages. Thus, the

purchasers held second rather than first mortgages. Moreover, the

mortgagors went into default on the original mortgages,

notwithstanding their payments to the purchasers. BFMC's chicanery

came to light when some of the original lenders initiated

foreclosure actions. The purchasing institutions were in many

instances left holding an empty bag.

The indictment focused on BFMC's transactions with

Citibank, which lost approximately $3,100,000 as a result of the

scheme. Citibank managed to recoup some two-thirds of this amount

from BFMC and the appellant, reducing its net loss to roughly

$1,200,000. This amount was reimbursed by the title insurer. See

Sheils, 184 F.3d at 12-13 (describing scheme and recounting details

of title insurer's involvement).

Against this mise-en-scene, the district court concluded

that the essence of the criminal conduct more closely resembled

theft than simple fraud (in that the appellant took value from

Citibank without intending to give anything of value in return).

See United States v. Orton, 73 F.3d 331, 334 (11th Cir. 1996)

(explaining difference between theft and simple fraud); United

States v. Smith, 951 F.2d 1164, 1167 (10th Cir. 1991) (similar);

United States v. Kopp, 951 F.2d 521, 528-29 (3d Cir. 1991)

(similar); see also United States v. Flowers, 55 F.3d 218 (6th Cir.

1995) (declining to treat check-kiting cases like fraudulent loan

application cases); United States v. Frydenlund, 990 F.2d 822, 825-

26 (5th Cir. 1993) (similar); cf. United States v. Schneider, 930

F.2d 555, 558 (7th Cir. 1991) (distinguishing between fraud in

which the fraudfeasor intends to deprive the victim of the entire

value of an object and fraud in which the fraudfeasor returns

something of value to the victim). Having reached this conclusion,

the court ignored the title insurer's payments and fixed the amount

of loss attributable to the scheme at $1,200,000. See USSG

2F1.1(b). This, in turn, dictated the guideline sentencing range

and influenced the length of the prison sentence that the court

imposed.

We review sentencing determinations under a bifurcated

standard. Quintessentially legal questions, including

determinations as to the meaning and application of particular

guidelines, engender de novo review. See United States v. St. Cyr,

977 F.2d 698, 701 (1st Cir. 1992). The sentencing court's

factfinding, however, is reviewed deferentially and will be

disturbed only if it is shown to be clearly erroneous. See id. We

assume here, favorably to the appellant, that the de novo standard

of review obtains.

The appellant's principal objection to the district

court's loss calculation is that it failed to take into account the

fact that Citibank, because it enjoyed the benefit of title

insurance, never ran a risk of losing anything on the mortgage

transactions. In the appellant's view, the title insurance

functioned essentially as pledged assets, see USSG 2F1.1, comment.

(n.8(b)); the transactions between BFMC and Citibank thus were

equivalent to fraudulent loan transactions, see id.; and,

therefore, any amounts recovered by Citibank from the title insurer

must be offset in computing the amount of loss.

Although the parties debate longiloquently the question

of whether the appellant's conduct was tantamount to a series of

fraudulent loan transactions, we need not force our way into

Procrustean taxonomies to resolve the underlying dispute. Cf.

United States v. Riley, 143 F.3d 1289, 1291-92 (9th Cir. 1998)

(endorsing economic reality approach to sentencing). Even assuming

that this scheme is best characterized as involving fraudulent

loans, we find no error in the court's decision not to shrink the

amount of loss to reflect the receipt of title insurance proceeds.

Insurance, unlike pledged assets, does not diminish the impact of

the fraud. Rather, insurance simply shifts the loss to another

victim (the insurance company), so it is irrelevant in calculating

the amount of loss for sentencing purposes. See United States v.

Daniels, 148 F.3d 1260, 1262 (11th Cir. 1998) (per curiam).

We need go no further. There is no question but that

the appellant engaged in willful misconduct. The mere fact that

his victim was insured puts him in a worse, not a better, position

from the standpoint of the criminal law: he not only committed

fraud, but his knowledge that Citibank had title insurance

permitted him to gamble with other people's money. It would be

perverse to hold that criminals need not account for fraudulent

losses because they know that, regardless of their machinations,

their principal victim will be made whole by an insurance company.

The sentencing guidelines surely do not compel such a conclusion.

Affirmed.

Schauer & Zeckhauser on Paltering

2007-02-11T02:33:00.000-08:00

Schauer & Zeckhauser on Paltering

Frederick Schauer and Richard J. Zeckhauser (Harvard University - John F. Kennedy School of Government and Harvard University - John F. Kennedy School of Government) have posted Paltering on SSRN. Here is the abstract:

A lie involves three elements: deceptive intent, an inaccurate message, and a harmful effect. When only one or two of these elements is present we do not call the activity lying, even when the practice is no less morally questionable or socially detrimental. This essay explores this area of “less-than-lying,” in particular intentionally deceptive practices such as fudging, twisting, shading, bending, stretching, slanting, exaggerating, distorting, whitewashing, and selective reporting. Such deceptive practices are occasionally called “paltering,” which the American Heritage Dictionary defines as acting insincerely or misleadingly.

The analysis assesses the motivations for, effective modes of, and possible remedies against paltering. It considers the strategic interaction between those who palter and those who interpret messages, with both sides adjusting their strategies to account for the general frequency of misleading messages. The moral standing of paltering is discussed. So too are reputational mechanisms – such as gossip – that might discourage its use.

Paltering frequently produces consequences as harmful to others as lying. But while lying has been studied throughout the ages, with penalties prescribed by authorities ranging from parents to philosophers, paltering – despite being widespread - has received little systematic study, and penalties for it even less. Given the subtleties of paltering, it is often difficult to detect or troubling to punish, implying that it is also hard to deter. This suggests that when harmful paltering is established, the sanctions against it should be at least as stiff as those against lying.

Highly recommended!

Posted by Lawrence Solum on February 07, 2007 at 04:19 PM in Downloads |

CCISD: Why do we (CCISD) need a Consulting Firm?

2007-01-01T22:28:00.000-08:00

CCISD: Why do we (CCISD) need a Consulting Firm?

2007 Anno Domini: which is it ~The timeline they decided on was to select a consultant by Jan. 12? The search committee won't be using a consultant ..

2007-01-01T21:31:00.000-08:00

2007 Anno Domini: which is it ~The timeline they decided on was to select a consultant by Jan. 12? The search committee won't be using a consultant ....???

professions is not for the personal advantage of its members but rather for the protection of the public.[155]

2006-12-18T01:14:00.000-08:00

Court Appointment of Lawyers (2002)

YouKnowItAll.com

© A. Hawkins 2002

Part 1

* * * * *

The Nature of this course
Court appointed counsel have long existed in American jurisprudence. Counsel are appointed in a variety of civil, criminal, and quasi-criminal cases. Appointments are important to the clients, the appointed lawyers, society, and lawyers who care about the legal system. Yet, little attention is given to the historical, philosophical, ethical, and practical issues raised by appointments. This is the first of many YouKnowItAll.com courses that will explore these issues. This course examines leading American cases that examine the basis role of the lawyer and court. The lawyer’s ethical duties, the court’s duties, the constitutional imperatives, and practical economic and geographic issues are intertwined in the cases and discussion. Myths that are believed by some of the American bench and bar are examined and found to be . . . myths.

Most issues in this course apply to both civil and criminal appointments in any American court. Most appointments in this course arise from criminal cases, but one is an appointment to represent a plaintiff in a medical malpractice case that may leave you in stitches. Of course, the laws, ethical rules, and case law vary from jurisdiction to jurisdiction. These cases are all from the last half of the 20th Century. The issues retain currency, but some authority cited in the cases has been overturned. For example, Arkansas has reversed the positions cited by the courts, and has adopted the modern view.[1]

This course is not a course that details current law. Rather, it provides the historical, philosophical, and ethical background that is essential to understanding, developing, and criticizing the law in any jurisdiction. For example, in 2001 Texas enacted a new law changing Texas law regarding appointed counsel in criminal cases. The new law will will require courts, lawyers, and county commissioners courts throughout Texas to revise the criminal defense appointment process. YouKnowItAll.com has a separate course on that law. Before Texas lawyers, judges, commissioners, and citizens, consider the details of that law and the choices that must be made, the material in this course should be mastered. Too often, the details that must be decided are considered without a legal, ethical, philosophical and historical foundation. The result is often a dysfunctional, improper, and unconstitutional system. In Texas, and in other states, it is past time to deal with these issues properly.

This course is appropriate for beginning lawyers, supreme court justices, and criminal law experts, as well as trial and appellate judges who preside over civil, criminal, or quasi-criminal trial or appellate cases, those who create rules and regulations related to court appointments, and even academics and influential citizens. It is appropriate for legislators, governors, and county commissioners who make or influence governmental laws, regulations and policy. Leaders of the organized bar, regardless of their field of practice should take this course.

The Process

1. Study this text.

2. When you finish this text, go to www.YouKnowItAll.com to observe the discussion. There, you may choose to ask questions or make comments, or you may choose to just observe any discussion posted by others.

3. Keep track of your actual study hours and dates. Take breaks when you like. After you complete your study, you certify your actual study hours at www.YouKnowItAll.com and you choose to whether to pay by check or credit card.

4. YouKnowItAll.com provides a printable certificate of your attendance with the course name, course number, and the CLE credit hours you earned. If you are in the Texas bar, we report your credit to the State Bar of Texas. If you are in another bar and need something else, let us know.

If you read this course online, your browser will probably let you click on a footnote number to go to the footnote and click on the number in the footnote to return to the text. Some browsers will show the footnote if you hold your curser over the footnote number without clicking If you print the text, you may wish to staple the footnotes separately so you may easily refer to them. They are at the end because of technicalities of the internet. This is a Microsoft Word document displayed as a web page. You may copy it into a word processor to print it if you like. If you have any problems, let us know.

There are three kinds of footnotes.

1. Footnotes by the court retain the court’s original number. Our footnote is a footnote to that number.

2. Footnotes that move citations to the footnotes are intended to make the material more readable. The footnote will have the court’s citations.

3. Footnotes by the author contain commentary.

Table of Cases

Hernandez v. State 726 S.W.2d 53 (Tex.Crim.App. banc 1986)

United States v. Wendy 575 F.2d 1025 (2d Cir. 1978)

Gasen v. Ohio 48 Ohio App.2d 191, 2 O.O.3d 156, 356 N.E.2d 505 (1976)

Zarabia v. Bradshaw 912 P.2d 5 185 Ariz. 1, 64 USLW 2 595 (Ariz. Banc 1996)

State v. Green 470 S.W.2d 571 (Mo.banc 1971) (En Banc)

In State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (Mo. banc 1981), cert. denied, 454 U.S. 1142, 102 S.Ct. 1000, 71 L.Ed.2d 293 (1982)

State v. Roper 688 S.W.2d 757 52 A.L.R.4th 1031, 53 USLW 2521 (Mo. banc 1985)

Stephan v. Smith 747 P.2d 816 (Kan. 1987)

* * * * *

In the 1930’s, while the band played on, the Scottsdale Boys and a lying whore gave birth to the right to effective counsel, not mere counsel.

Hernandez v. State 726 S.W.2d 53 (Tex.Crim.App. banc 1986)

Justice Teague tells a story that every lawyer, judge, and citizen should know. Perhaps every lawyer and judge should reread this tragic story every few years so it remains in our minds and hearts when we consider the American criminal court system. The case in which the opinion is issued is beyond the scope of this course, so only this excerpt from Justice Teague’s opinion is included.

Justice Teague, concurring and dissenting

“The facts that gave rise to the Supreme Court decision of Powell v. Alabama made it the ideal case for the Supreme Court to rule on such an important issue in our criminal jurisprudence. Eight of the nine defendants in that cause received the death penalty. After conviction, the case itself received an enormous amount of nationwide publicity, which in part was caused by a ‘fight’ between the International Labor Defense of the Communist Party and the N.A.A.C.P., over which group would furnish legal representation for the defendants, which itself is rather interesting when one considers the fact that it appears that no lawyer really wanted to represent the defendants at their trials.

“The incident that gave rise to a long series of trials and appeals of the ‘Scottsboro Boys’ began on March 25, 1931, when the police arrested in Paint Rock, Alabama nine young black males, one of whom was 13 years of age and another who was only sixteen years of age, for the rape of a white female. The rape allegedly occurred on a ‘fast’ freight train traveling between Chattanooga, Tennessee and Huntsville, Alabama. The train was stopped at Paint Rock by a deputy sheriff and a posse comitatus. The defendants stood trial in nearby Scottsboro, Alabama; thus, the name ‘Scottsboro Boys.’ None of the defendants were residents of the State of Alabama. It was later established that the victim was a well-known prostitute apparently traveling on the train with a ‘trick,’ and that she had fabricated her story that she had been raped to cover up the fact that she was illegally crossing state lines. Because the attitude of the community of Scottsboro, where the defendants were tried, was one of great hostility, to prevent a lynching the National Guard was called out. The National Guardsmen guarded the defendants, who were housed in Gadsden, Alabama during the pretrial and trial proceedings, as well as guarding the courthouse and the courthouse grounds located in Scottsboro, at every stage of the proceedings.[2]

“Six days later, on March 31st, the defendants were indicted and arraigned. The trial judge later stated that at arraignment he had appointed all the members of the local bar for the purpose of arraigning the defendants. He also stated that he anticipated that the members of the bar would continue to help the defendants if no counsel appeared at the defendants’ trials. On April 6th, the trials commenced, after the State's motion for severance was granted. Before the trials commenced, the trial judge engaged in a long colloquy with a lawyer from the State of Tennessee, who was not a member of the Alabama bar, to see whether he would appear as counsel for the defendants. The Tennessee lawyer stated that he had come ‘as a friend of the people who are interested and not as paid counsel’ and that he was not familiar with Alabama procedure nor had he had a chance to prepare for the cases. He eventually took part in the trials in the capacity of an amicus curiae. A local lawyer volunteered to help the Tennessee lawyer. Another local lawyer, who had said he could not appear as counsel, but was willing to assist, suddenly became lead counsel. He and the Tennessee lawyer were assisted by another local lawyer who the judge apparently drafted into service, sua sponte. The trials then began. The defendants were tried in three separate groups, but apparently before three different juries sitting at the same time. The trials, which were attended by some eight to ten thousand persons, lasted only one day. A parade took place during the time the trials were occurring. The parade, complete with a band, was sponsored by The Ford Motor Company. When verdicts in the Weems and Norris’ case were returned, the band played the tune ‘There’ll Be A Hot Time In The Old Town Tonight.’ There was much applause from the spectators who were watching the parade.[3]

“As noted, eight of the defendants were convicted and given the death penalty. The jury which heard the thirteen-year-old's case was unable to reach a verdict. The prosecutor had asked that jury to assess the thirteen-year-old a life sentence; however, seven of the twelve jurors wanted to impose the death penalty. It appears that this disagreement over what punishment to assess is what caused the jury in that case not to be able to reach a verdict.

“On March 24, 1932, the Supreme Court of Alabama, in Patterson v. State; Powell et al. v. State;[4] Weems et al. v. State,[5] affirmed all but the conviction of Williams, the sixteen year old, which it reversed because it held that Williams, a juvenile, should not have been tried as an adult. Only Chief Justice Anderson of the Alabama Supreme Court dissented. He believed that under the circumstances the defendants had been tried too quickly. In Powell et al. v. State, the majority implicitly answered Judge Anderson's belief in these words: ‘The appellants complain of the speed of the trial. There is no merit in the complaint. If there was more speed, and less of delay in the administration of the criminal laws of the land, life and property would be infinitely safer, and greater respect would the criminally inclined have for the law.’[6]

“Analogizing to the trial of Czolgosz, the assassin who shot former President McKinley in Buffalo, New York on September 6, 1901, the majority found support for its holding that the trials were not too speedy. The majority pointed out that in that case only two months passed from the date of the shooting until Czolgosz was executed, and ‘This verdict, sentence, and execution were approved by good citizens, north, south, east and west, in fact on both sides of the Atlantic.’[7]

POWELL v. ALABAMA

“With this backdrop, I now turn to the Supreme Court decision of Powell v. Alabama.

“On October 10, 1932, almost exactly six months from the day that the Alabama Supreme Court had denied rehearing, the Supreme Court heard oral argument. It decided the case on November 7, 1932, and restricted the issue to be decided to whether the defendants were in substance denied their right to counsel, ‘with the accustomed incidents of consultation and opportunity of preparation of trial.’[8] Thus, the focus of attention was not on what occurred during the trial, but on the actual amount of time allotted the attorneys for trial preparation.[9]

“The Court first held, however, that because the designation of counsel for the defendants was either so indefinite or so close upon the trials that such amounted to a denial of the effective and substantial aid of counsel. It further held that ‘[i]n any event, the [above] circumstance, [the designation of counsel], lends emphasis to the conclusion that during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trials, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were entitled to such aid during that period as at the trial itself.’[10]

“What appears to have troubled the Court the most was that, even assuming there was a proper designation of counsel on the morning of the trial, such would not have permitted counsel a sufficient period of time to investigate before going to trial. ‘[A] defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense.’[11]

“The Court next decided whether the denial of the assistance of counsel contravened the due process clause of the Fourteenth Amendment to the Federal Constitution. After tracing the historical roots of the right to counsel, the Court concluded that ‘the right to the aid of counsel is ... [a] fundamental right guaranteed by the due process clause of the Fourteenth Amendment ... We think the failure of the trial court to give [the defendants] reasonable time and opportunity to secure counsel was a clear denial of due process ... [I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation of the case.’[12]

“Thus, in order for there to be due process of law, there must be a trial, but, standing alone, without the effective assistance of counsel, the trial would have little meaning or importance. Because the defendants had been denied the effective assistance of counsel, the Supreme Court ordered their convictions reversed.

SUBSEQUENT HISTORY OF POWELL v. ALABAMA’S HOLDING

“Notwithstanding that the question, whether a defendant has a constitutional right to the assistance of counsel in a non-capital case, was not answered in Powell v. Alabama, in 1938, the Supreme Court held in Johnson v. Zerbst,[13] that a defendant in a federal criminal prosecution was entitled to the assistance of counsel and that, if unable to afford counsel, the trial court had an obligation to appoint him an attorney. Thus, the Sixth Amendment barred a conviction and sentence in a Federal criminal trial if the defendant was not represented by counsel and had not competently and intelligently waived his right to counsel. However, State defendants charged with non-capital offenses did not fare as well.

“In Betts v. Brady,[14] the Supreme Court rejected the claim that due process of law required the assistance of counsel in state proceedings as broad as that provided in the federal courts by the Sixth Amendment. "[T]he due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment."[15] Thereafter, whether counsel was required in a non-capital felony case was decided on a case by case approach. Counsel was required to be appointed only when the particular circumstances of the case indicated that the absence of counsel would result in a lack of fundamental fairness.

“In Uveges v. Pennsylvania,[16] the question, whether counsel should be appointed, was framed as follows: ‘Whether the gravity of the crime and other factors--such as the age and education of the defendant, the conduct of the court or prosecuting officials, and the complicated nature of the offense charged and the possible defenses thereto--render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair?’[17]

“In Gideon v. Wainwright,[18] the Supreme Court put to rest the above distinctions by overruling Betts v. Brady and held that the Sixth Amendment right to counsel was applicable to the States through the due process clause of the Fourteenth Amendment. Thus, the appointment of counsel was required in a state felony prosecution, as well as in a Federal felony prosecution, when the defendant could not afford to employ an attorney.[19]

“Gideon v. Wainwright, was expanded in Argersinger v. Hamlin[20] to misdemeanors where the punishment exceeded six months. In Scott v. Illinois,[21] the Court held that where there was to be no confinement, the right to counsel did not attach. But in Baldasar v. Illinois,[22] the Supreme Court held that an uncounseled misdemeanor conviction without a jail sentence could not be used to convert a subsequent misdemeanor to a felony offense that carried a prison term as punishment.”

* * * * *

Today, there is an acknowledged constitutional right to counsel, and appointed counsel for indigents, if there may be any jail sentence.[23]

* * * * *

Powell v. Alabama rejected the notion that representation by any counsel at trial is sufficient to meet the constitutional requirement. The defendant’s constitutional right to counsel is the right to effective counsel. That is the view from the defendant’s perspective. For the view from the lawyer’s perspective we examine Wendy, Gasen, Zarabia, Green, Wolff, Roper, and Stephen. In the process we will see how several courts view the relationship of attorney and court, and the constitutional issues of due process, compensation for property, equal protection, and involuntary servitude. The legal and disciplinary obligations of lawyers are examined and the notion of the lawyer as an “officer of the court” is revealed as mythology.

United States v. Wendy 575 F.2d 1025 (2d Cir. 1978)

“Though a member of the Bar of the Southern District, appellant Howard Wendy is not a criminal trial lawyer. Rather, he is a tax lawyer and, at the time of the purported contempt, was a partner in the firm of Kassner & Detsky. In connection with the Harris case, a criminal tax evasion indictment, Wendy was present at Harris's July 8, 1976, arraignment. He subsequently filed a notice of appearance form which included his own signature and the name and address of the Kassner firm. On August 18, September 7, September 21, and October 12, 1976, Wendy appeared before Judge Goettel in connection with preliminary matters. At the September 21, 1976, conference, the Speedy Trial deadline of December 29, 1976, was duly noted. And on October 12 the district judge declared, with the agreement of both Government counsel and Mr. Wendy: "I will commence the trial on December 13th."

“On December 13, in answer to the judge's question whether the defendant was ready to proceed, Wendy replied in the negative and explained:

I have never tried a case. My background is tax and accounting, and I am assisting Mr. Kassner. I have no experience as a trial attorney, I have never tried a tax case, and I don't feel competent to try this tax case. 1[24]

“The judge reminded him that he had appeared personally and recalled "the recent Second Circuit case[25] in which the attorney was assessed fines of $500 a day for doing precisely what Kassner is attempting to do here, namely, on the last working day before trial announc(ing that) he was engaged in a state proceeding and would not be prepared to go ahead until some later date." 2[26] The judge then warned that ‘if this case is delayed, it is going to be at the rate of $500 a day fine against Mr. Kassner.’

“Mr. Wendy stated that he had intended to enter an appearance on behalf of the firm, not himself, and that if he signed the paper in his name it was inadvertent. He then explained that Kassner's absence was occasioned by slow proceedings in a state court action.3[27] The Assistant United States Attorney said that he first learned of Kassner's state court involvement on the previous Thursday, December 9. The judge added that he had not heard of Kassner's conflict until Friday, December 10, and that he had ‘relayed the message back that a continuance would not be granted, and if counsel was actually unprepared to proceed, there would be fines levied under the authority of the Sutter case, and that is where we stand.’4[28] The judge then asked Wendy if he wished to proceed. When Wendy replied that he preferred ‘not to go ahead,’ the court for the first time indicated that the $500 fine would be assessed ‘against (Wendy) personally as attorney of record.’ Some discussion of the Speedy Trial Act followed. The court then asked again whether Wendy was prepared to try the case and, upon the latter's negative answer, declared:

All right, be back here tomorrow morning. We will go through the same procedure again, and I intend to find you in contempt and assess fines against you of $500 for each day you are unprepared to proceed.

“On the following day, December 14, Wendy acknowledged that the defendant was not ready and applied for an adjournment. He attempted to distinguish Sutter on the basis that Sutter took on the state court case three weeks before he was scheduled to start trial in federal court while Kassner had accepted the state court case a year and a half before. Wendy also pointed out that ‘the firm should certainly be the one, and I was never intended to be the attorney of record . . . .’ Discussion of a continuance transpired after which Wendy presented the judge with a copy of a petition to the court of appeals for a writ of mandamus. The judge read the papers and commented:

The papers imply that Mr. Kassner is being threatened with contempt because he is not in two courts at once.

It is not Mr. Kassner who is in contempt, Mr. Wendy, it is you who are in contempt.

“The court also inquired of Wendy why he was not qualified to try a case in view of his admission to the bar. Wendy replied that this was ‘not a civil case and not one that I feel I should cut my teeth on . . . .’ 5[29] The court then ascertained that Wendy was not prepared to proceed by giving him a choice between proceeding or ‘being held in contempt for being unable to proceed at this time . . . .’ When Wendy again refused to try the case, the court held him ‘in contempt and . . . fin(ed) him an additional $500.’ 6[30] When Wendy requested the opportunity to come before the district court in the event his petition in the court of appeals was denied, the judge responded: ‘You then have the opportunity because you are coming back tomorrow morning, and every morning until the Court of Appeals takes some action.’7[31] Wendy reiterated that it was Kassner, not he, who had been retained in the case, and that Wendy's signing of the appearance was through mere inadvertence.

“The pas de deux rehearsed on December 13 and 14 was played again for the third and last time on the following day, December 15. Wendy repeated that the defendant was not ready to begin the trial.8[32] The court once more refused to accept Kassner’s absence as Wendy’s ‘excuse’ and found appellant in contempt, fining him an additional $500. At this point the district judge said that he would not impose any more fines,[33] because he could not commence the trial on December 16 even if Wendy and Kassner were ready.9[34]

“Several days after the third performance of the contempt scenario terminated, Judge Goettel referred his finding of ‘contempt against an attorney’ to the Reassignment Committee of the Southern District for assignment to another judge. 10[35] In setting forth the facts, the judge stated that he considered the action taken ‘to have (been) a civil contempt, although an argument can be made that it was criminal and required compliance with Rule 42(b).’ 11[36] “What we are dealing with, then, are in effect three citations of civil contempt against an attorney for his refusal to proceed to trial 12[37] in a felony case on the basis that the intended trial counsel was otherwise engaged, that he himself was insufficiently experienced to try the case, and that entry of his own name on the notice of appearance had been inadvertent. We are not dealing with a criminal contempt, 13[38] [39] there being no alleged violation of 18 U.S.C. § 401; 14[40] nor do we have a governing local rule such as was involved in In re Sutter; 15[41] and the fines were not imposed under 28 U.S.C. § 1927.[42] 16[43]

“Contempt by an attorney is always a serious matter. While a simple rebuke or more serious censure by the court might not have the same effect as in the more tightly-knit Bar of England, 17[44] the more serious exercise of the contempt power is awesome in its implications. A citation is likely to afflict the contemnor with a ‘stigma of antisocial conduct.’[45] For a lawyer seeking admission to other bars or to practice before federal agencies, a citation might have considerable economic consequences. The appellation of ‘civil’ rather than ‘criminal’ contempt hardly alleviates the harm. Thus, it behooves the court, in the first instance or on appeal, to make certain that an order of the court is violated before a citation issues.

“We fail to find such an order on December 13, 1976. True, the trial was scheduled for that day, but the court might well have granted the continuance sought by Kassner and Wendy. The judge on that day erroneously thought that he was proceeding on the authority of the Sutter case.[46] . He also first spoke of a $500 a day ‘fine against Mr. Kassner,’ before he stated to Wendy that it would be assessed against him personally as attorney of record. But the December 13 transcript does not reveal an order to Wendy either to proceed to trial that day or to be held in contempt. Accordingly, the judgment as to December 13 must be reversed.

“The following two days rest on a different footing. On December 13 the court told appellant to return the next morning at which time "(w)e will go through the same procedure again. . . . (A)nd I intend to find you in contempt and assess fines against you of $500 for each day you are unprepared to proceed." Assuming that this statement was an implicit order to proceed, we conclude that a civil contempt citation for Wendy's election not to proceed was inappropriate.

“A long recognized defense to a civil contempt citation is the cited individual's inability to comply with the court's order.[47] Technically speaking, Wendy may have had the ability to comply with the court's order in that, as a member of the bar, he was legally authorized to try cases. 18[48] But realistically, Wendy was incapable of compliance. It is uncontroverted that at the time of the contempt citations, Wendy's expertise was in the area of tax and accounting. He had never before tried a case, civil or criminal, state or federal. He was hardly qualified, therefore, to try a felony tax carrying a potential five-year prison term. The client, whose liberty was at stake, 19[49] certainly did not want Wendy to try the case. 20 [50] To be ordered either to try a case which he was obviously unqualified to do 21[51] or to be held in contempt was thus a Hobson's choice. 22[52] That is to say, Wendy did not, in the old phrase, ‘carry the keys of (his) prison.’[53] He could not be held in contempt because he did not have the present ability to comply with the court's order in any meaningful sense. 23[54]

“We do not underestimate the important duties of counsel to the court, especially since the Speedy Trial Act has made calendar control even more difficult than it was previously. We agree entirely with the district court that Wendy neglected his duty timely to inform the court that Kassner was to be trial counsel. We do not condone his conduct in this regard and, as we have said, do not reach the question whether he could have been fined if the Southern District had in effect a rule like the Eastern District's Rule 8(b) discussed in Sutter. We hold only that a contempt citation was improper under the circumstances here.

“Judgment reversed.

The most important statement in Wendy may be contained in the following footnote by the court.[55]

‘Wendy’s situation was perhaps even more complicated than the simple dilemma between risking Harris’s freedom and suffering a contempt citation. Conceivably, trying a case which he knew he was unqualified to do might have resulted in disciplinary proceedings. Canon 6 of the ABA's Code of Professional Responsibility requires a lawyer to ‘represent a client competently.’ Disciplinary Rule 6-101(A)(1) admonishes a lawyer not to ‘(h)andle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.’

* * * * *

The Second Circuit is one of the most influential circuits with its base in New York. It recognizes the simple truth that Wendy was not competant to try the criminal case. It further recognizes two prongs of the issue. One prong is that the defendant needed, wanted, and was entitled to a criminal trial lawyer to represent him and that representation by Wendy would not satisfy his right to counsel The other prong is that the disciplinary rules of professional conduct prohibited Wendy from trying the case. Wendy simply had no right, authority, or privilege to try the case for the defendant. Although Wendy had a law license that seemed to give him the right to do so, he was bound by the disciplinary rules which prohibited him from doing so. The court could not hold Wendy in contempt for refusing to act in a manner which would have violated the disciplinary rules. Since Wendy was ethically prohibited from trying the case alone, he could not do so. He could not comply with an order to do so. He could not be in contempt since he could not comply with the order.

This analysis is simple, and simply correct. Any judge and any court should know it. Unfortunately, some don’t. Another court that did recognize this simple truth is an Ohio court of appeals, which faced a similar situation in Gasen.

Gasen v. Ohio 48 Ohio App.2d 191, 2 O.O.3d 156, 356 N.E.2d 505 (1976)

“At 10:31 a. m. on August 1, 1975, a judge of the Hamilton County Municipal Court called the case of Marjorie and William Stovall for a preliminary hearing on a felony charge. The Stovalls were, according to the record, represented by attorneys from the Public Defenders’ office who were not, however, present in court when the case was called.

“As a result of such attorneys being absent, the judge asked if the city prosecutor could ‘* * * dig up a public defender?’

“Shortly thereafter, Richard Gasen, a public defender and an appellant herein, although not the attorney of record for the Stovalls, entered the courtroom and was summarily appointed by the court to represent the Stovalls. Gasen declined to accept such appointment, objecting on the grounds that the Stovalls were already represented by other attorneys and that he (Gasen) had neither a file regarding the case, nor an opportunity to confer with the Stovalls. Gasen further stated that his intervention at that juncture would, in effect, deprive the Stovalls of their Sixth Amendment right to effective representation of counsel.

“The trial court rejected Gasen's objections and ordered him to proceed with cross-examination, prompting Gasen to again refuse. At 10:40 a. m., Peter Rosenwald, an appellant and a public defender, but not an attorney of record with respect to the Stovalls, entered the courtroom, whereupon the court stated:

‘Mr. Rosenwald, you are appointed to defend William Stovall and Mr. Gasen is representing Marjorie Stovall. Just come forward and do the best you can with cross-examination.’

“Both Gasen and Rosenwald refused on the grounds that to do so would constitute violations of the Code of Professional Responsibility and would deny the Stovalls effective representation of counsel. The court again rejected the attorneys’ objections, stating:

‘Now, I want to proceed. I’m appointing each of you. This is not a case where we decide their innocence or guilt. All we're deciding is whether to proceed with prosecution. You don’t have to know anything about the case to cross-examine.’

“Upon their continued refusal to represent the Stovalls, both Gasen and Rosenwald were incarcerated pending a hearing on a charge of contempt for refusal to obey the court’s order. The contempt hearing commenced at 11:43 a. m., each of the appellants making a statement apologizing to the judge, but reiterating their position relative to the Stovalls. The court thereupon found each attorney in contempt of court and sentenced each according to law.

“Gasen and Rosenwald present, respectively, five and six assignments of error for our consideration on these appeals. Although various arguments are made by the appellants in support of their several assignments of error, we have distilled these contentions into a single issue; namely, the judgment is contrary to law. We will therefore apply the arguments presented by the appellants and those advanced by the Cincinnati Bar Association, in its amicus curiae brief, to that solitary issue.

“The argument seeming most germane to us pertains to appellants’ contention that they were held in contempt for refusing to violate the Code of Professional Responsibility. Canon 6 of the Code provides, in EC 6-1, that:

‘Because of his vital role in the legal process, a lawyer should act with competence and proper care in representing clients. He should strive to become and remain proficient in his practice and should accept employment only in matters which he is or intends to become competent to handle.’

“EC 2-30 provides in pertinent part that:

‘Employment should not be accepted by a lawyer when he is unable to render competent service * * *. If a lawyer knows a client has previously obtained counsel, he should not accept employment in the matter unless the other counsel approves or withdraws, or the client terminates the prior employment.’

“Clearly, the ethics of the legal profession demand that any attorney, private or public, decline to represent a party when such attorney is unable, for valid reasons, to fully and adequately prepare such party's case, or when such party is already represented by competent counsel. Failure of an attorney to decline to perform such representation may result in disciplinary measures being taken against him. DR 6-101.

“In the cases at bar, both the appellants, the court, and the prosecutor were aware that the Stovalls were already represented by staff members from the Public Defender’s office. Such prior representation had not terminated, nor had original counsel formally approved of permitting Messrs. Gasen and Rosenwald to intervene on their behalf. Moreover, the record is replete with assertions by the appellants that they were utterly unprepared to offer effective representation to the Stovalls.

“It cannot be gainsaid that where, as here, a court summarily appoints counsel to represent an indigent defendant who is already represented by competent counsel, and where such substitute counsel is afforded neither information relative to the charges against the defendant, nor given the opportunity to confer with the defendant, the court has forced upon the interim counsel the alternative of rendering ineffective assistance of counsel, conceivably waiving or overlooking the accused's possible defenses, or being held in contempt of court for failure to perform such representation. The court's assertion to appellants that 'you'll be excused of any problems' would inevitably be meaningless in a later appellate proceeding, for by the time such cause reached an appeal on the merits, defects in prior preliminary proceedings would arguably have been waived and would no longer be justiciable issues upon review. Aside from the questions raised by the nature of a preliminary hearing, no attorney may be a party to and acquiesce in an illegal order of the court and then revive and raise such illegal order as error on appeal. The problem herein is thus magnified since only through a refusal by Gasen and Rosenwald to represent the Stovalls could such objection be preserved. The cause sub judice may thus be distinguished from those authorities cited by appellee dealing with instances where the error inherent in attempting to enforce an illegal order may be corrected on appellate review.

“This Court of Appeals, in In re Schott (1968),[56] vacated a contempt conviction against a municipal prosecutor on the grounds that the order of the trial court did not harmonize with the mandates of the law as interpreted by a superior court. The prosecutor there refused to comply with an order of the municipal court that he provide a defendant with a bill of particulars, basing such refusal on a case decided by the Court of Appeals for the First Appellate District of Ohio. It was argued in Schott as is argued herein, that the right of due process of law is vested in the defendant and not in counsel. This court stated[57] however, that:

‘We view the instant case not as one broaching a question properly to be decided upon appeal but one bringing before us the personal rights of the petitioner himself. His right to protection from deprivation of his liberty is completely separable from the merits of the case in which the petitioner was acting as solicitor representing the people.’

“In the instant case, therefore, the right of the appellants to due process of law was a personal right, separable from the rights of the Stovalls. Moreover, by refusing to recognize the appellants’ responsibilities and obligations under the Code of Professional Responsibility, which was adopted by the Supreme Court of Ohio in 1970, the trial court, in effect, ignored the dictate of Schott that '* * * the ground, principle, or reason of a decision made by a higher court is binding as authority on the inferior court.’ This court concluded in Schott that an inferior court’ * * * whatever may be its own convictions, must in the discharge of its functions be governed by the settled maxims of law and limit itself as such permit and sanction. An arbitrary refusal to do so is a denial of due process of law.’

“We hold that the trial court erred as a matter of law in refusing to recognize the appellants’ responsibilities under the Code of Professional Responsibility *[58] and conclude accordingly that the finding of contempt rendered below is contrary to law. Such finding being contrary to law, it is the order of this court that the judgment of the Hamilton County Municipal Court be reversed and the appellants discharged herewith.”

* * * * *

Zarabia examines appointments in a range of circumstances, with an estate planner, a civil litigator, a contracting part time criminal defense lawyer giving rise to an important case. The strength of Zarabia is common sense and the understanding that criminal law requires time and expertise, but the Arizona Supreme Court may not be familiar with some of the history and law that was previously developed in Missouri and Kansas cases which are presented later in this course.

Zarabia v. Bradshaw 912 P.2d 5 185 Ariz. 1, 64 USLW 2595 (Ariz. Banc 1996)

“In the fall of 1995, faced with Yuma County's failure to establish a public defender's office and a decline in the number of private attorneys willing and available to represent indigent defendants in the superior court, the presiding judge of the superior court in Yuma County put into effect a new system for providing representation to indigent criminal defendants. Under the new regime, which is still in place, indigent criminal defendants are represented by a mix of attorneys who contract with the Yuma County Superior Court to represent such defendants (contract attorneys) and practitioners appointed from the private bar as a whole.

“The contract attorneys are required to provide services in various types of criminal cases at a specified compensation rate paid from the county’s general fund. The practitioners appointed from the general bar include those who practice criminal law as well as those who do not, and those who have trial experience as well as those who do not. All attorneys appointed are required to accept the cases assigned by the superior court bench. Assignments are made to the contract attorneys in accordance with their contracts; assignments to every other private attorney in the county are made in rotation.

“This petition for special action challenges several aspects of that system. Respondent, Judge Bradshaw, is the Presiding Judge of Yuma County. Petitioners are representatives of most of the affected lawyer and client populations. Lawrence L. Deason and Steven R. Morgan are civil lawyers who have been appointed by Respondent to represent defendants charged with serious felonies. Deason has practiced law for twenty-four years, doing estate planning and similar non-litigation matters. He has no experience in criminal law and has never tried a jury case of any kind. Morgan has minimal experience in criminal representation but currently concentrates on civil transactional work. Both attorneys objected to their appointments on the grounds that they lack the necessary competence to adequately perform their appointed duties and that inordinate professional and financial hardship would result from undertaking the representation. Their requests to decline appointment were rejected by the presiding judge.

“Jesus Manuel Zarabia is a criminal defendant charged with importation of marijuana, a class 2 felony. Considering the state’s allegation of a prior felony conviction, Zarabia faces a potential 18.5-year prison sentence if convicted.[59] Deason was his appointed counsel. In light of his counsel's professed lack of competence, Zarabia asserts that he will receive ineffective assistance of counsel if Deason continues to represent him. Thus, he requests that a competent, experienced lawyer be assigned to represent him.

“Nebra Evans Porter represents indigent defendants as a contract attorney. Believing that her case load exceeded her ability to provide competent representation to all her clients, Porter requested that the superior court withhold further appointments under her contract until she was able to decrease her work load. Without holding a hearing, Respondent denied her request and instead assigned her additional cases.

“Petitioners seek several forms of relief, including orders vacating the appointments of Deason and Morgan, scheduling evidentiary hearings on the issues of competence and excessive case loads, and a declaration that defendants represented by lawyers appointed under the present system are presumably receiving ineffective assistance of counsel. After hearing oral argument on the petition, we accepted jurisdiction. By this opinion and order, we grant partial relief.

DISCUSSION

A. Appointment of civil practitioners

“The scheme adopted by Respondent appoints attorneys on a ‘rotational basis,’ with apparently little or no individual consideration for matching lawyers possessing particular experience or training with specific cases. The compensation scheme adopted by the court for these conscripted lawyers provides a total of $375 for up to twenty hours' work on a case ($17.50 per hour), and $50 an hour if more than twenty hours are required to complete the representation. For attorneys such as Deason, who believe they are ill-equipped to represent criminal defendants, the court offered the assistance of paid ‘mentors,’ attorneys who specialize in criminal law. These mentors agree to be available for consultation but nothing else.

“1. Competent counsel

“It is axiomatic that our criminal justice system demands that every defendant threatened with a loss of liberty be represented at trial and on appeal by competent counsel.[60] Defendants not able to afford to hire counsel are entitled to have counsel appointed for them.[61] By statute, when a court appoints counsel to represent a criminal defendant, that counsel ‘shall be paid by the county in which the court presides.’[62] By rule, appointment of private lawyers to represent criminal defendants ‘shall be made in a manner fair and equitable to the members of the bar, taking into account the skill likely to be required in handling a particular case.’[63]

“A necessary corollary of these principles is that the attorney appointed must render competent, effective assistance at trial and on appeal.[64] Assigning an attorney incapable, for whatever reason, of providing effective assistance at these stages violates a defendant's constitutional rights.[65] Our code of professional conduct echoes these policies.[66] Inadequate representation at trial and on appeal also violates the public's interest in--and right to--establishing a fair justice system and achieving prompt, final disposition of charges.

“We believe the Yuma County system of appointing private attorneys for indigent defendants offends the requirements of the statute and the rule. First, appointment of lawyers on a random, rotational basis does not take ‘into account the skill likely to be required in handling a particular case.’[67] Respondent does not suggest that there is any individualized matching of lawyer to defendant. Instead, Respondent justifies the appointments by providing mentors. As Respondent describes them, the mentors are available to ‘assist in the answer to questions and to assist you (not do your work for you).’ We do not share Respondent’s optimism that an attorney like Deason, who has no trial or criminal experience, can become reasonably competent to represent a defendant, like Zarabia, charged with a very serious crime, simply by having a mentor with whom to consult as the need may be perceived and the occasion arise. Indeed, one wonders whether even a very able probate and estate planning lawyer will know when or on what issue to seek help and advice.

“2. Compensation

“Yuma County is obligated by A.R.S. § 13-4013 and Rule 6.5(c) to provide appointed counsel and pay such counsel reasonable and equitable compensation. Even a brief analysis of the county’s system reveals that it fails to meet this standard. Morgan normally charges his civil clients $150 an hour. He has calculated his overhead expenses to be approximately $75 per billable hour. If this is correct, and we can certainly take notice that established lawyers have substantial overhead expenses, the compensation schedule for appointed attorneys will pay Morgan only twenty-five to sixty-five percent of his overhead expenses and nothing for his time.

“A compensation scheme that allows lawyers significantly less than their overhead expense is obviously unreasonable, although on this sparse record we refrain from any formal finding on whether the Yuma County fee schedule is unreasonable. Yuma’s payment schedule simply illustrates the inequity of the appointment system. It is impermissible for the presiding judge, in wholesale fashion, to transfer the public's constitutional obligation to pay the financial cost of indigent defense to the county’s private lawyers.

B. Porter's complaint of excessive case load

“On November 1, 1995, Porter, a contract attorney, wrote to Respondent detailing her existing case load and expressing her opinion that she could not ethically accept further appointments until her case load decreased. Without holding a hearing, Respondent rejected Porter's request and continued to assign new cases to her.

“This court established presumptive case load ceilings for criminal defense counsel in State v. Joe U. Smith[68] In that case, we pointed out the ethical obligation of defense counsel to manage their professional responsibilities so as to ensure that they are able to provide adequate representation to every client.

“Although the guidelines expressed in Joe U. Smith are an appropriate standard, Porter does not ask that we determine whether her case load exceeds Joe U. Smith limits. Nor is the record presented to us adequate to that task. It is sufficient for the present to say that Porter has raised colorable questions concerning her ability to provide adequate representation, and her request for a hiatus in appointments should not have been summarily denied.

C. Plea policy

“Petitioners have raised issues concerning the Yuma County Superior Court’s policies concerning stipulations in plea agreements. Supposedly, disallowing such agreements has the effect of increasing the number of cases assigned to the bar. In Espinoza v. Martin, this court disapproved of court policies that allowed rejection of a plea agreement without individualized consideration simply because the agreement contained a stipulated sentence.[69] Because the record is not clear on this issue, we do not reach it. We assume, rather, that all judges will comply with Arizona law in this area.

CONCLUSION

“For the reasons set forth above, we hold that the practice of rotational appointment of private attorneys adopted by Respondent violates both A.R.S. § 13-4013 and Rule 6.5(c). This conclusion obviates the need to pass on the substantial constitutional issues raised by Petitioners. On a cautionary note, however, nothing we say here should be interpreted as limiting a judge's inherent authority to achieve justice by appointing a particular lawyer to represent a defendant or litigant in a particular case, even if the appointment is pro bono or causes financial hardship to the appointed lawyer. There is a stark distinction, however, in requiring a lawyer to handle one case or a few and in conscripting lawyers to regularly handle all cases regardless of their ability or willingness to do so. We do not believe the court's inherent authority can extend so far. Whatever appointment process a court adopts should reflect the principle that lawyers have the right to refuse to be drafted on a systematic basis and put to work at any price to satisfy a county's obligation to provide counsel to indigent defendants.

ORDER

“IT IS HEREBY ORDERED that relief is granted as follows:

“1. Morgan's appointment is vacated; Respondent is directed to appoint qualified attorneys to represent Morgan's criminal clients. 1

“2. Respondent shall hold an evidentiary hearing to determine whether Porter must withdraw from existing assignments or can properly accept new appointments.

3. Respondent shall hold an evidentiary hearing for any other appointed private attorney who reasonably asserts that he or she will be unable to provide effective representation to an indigent defendant because of a lack of adequate training or experience or because of currently existing professional commitments.

“4. Respondent shall provide a fair and equitable fee schedule for lawyers appointed from private practice. The fee schedule shall consider all appropriate factors, including the bar’s obligation to serve the public.

“IT IS FURTHER ORDERED that in all other respects, the relief requested by Petitioners is denied.

---------------

A footnote by the court explained that the Judge removed Deason while the matter was pending. What it does not say is more interesting. According to one of Deason’s appellate attorneys who spoke about the case with the author of this text, after oral argument an attorney with the attorney general’s office which represented the trial Judge spoke to the judge, told him the likely result of the case, and suggested that Deason be relieved of the appointment. The judge did so.

“On February 1, 1996, this court granted the state’s motion to supplement the record. That supplement indicated that Respondent removed Deason from Zarabia's case and reassigned his case to another attorney. This moots Deason's and Zarabia's claims, but because the matter is capable of repetition, we exercise our discretion to reach the merits.[70] The supplement also noted that after oral argument, Respondent affirmatively apprised all Yuma County superior court judges to comply with Espinoza. Because we did not reach this issue, this information does not affect our disposition.”[71]

Note that the document filed by Deason was a Declination. Deason did not seek to withdraw. Instead, he declined the representation. The author of this text has seen the filed declination and confirms its nature. There is some confusion among lawyers whether declining or withdrawing is the appropriate procedure. The author agrees with Deason that declining is clearly the correct concept. Deason was ethically obligated to decline. He was prohibited from accepting. Accepting and then withdrawing is nonsensical and inappropriate. Declination is required. However, some disagree.

* * * * *

In 1971, Missouri was one of three states without a system of indigent defense and payment for services.[72] In Green, the Missouri court announced an end to that, but left the remedy to the legislature. Skeptics might think that the reason is that the court didn’t want to take the political heat, but were willing to make the legislature do so. The dissent by the Chief Justice is long, thorough, and informative. However, one of the most notable features in all the opinions in this case is the lack of scholarship. The court is aware of an Iowa case and a New Jersey case, and cites a few others without analysis. It is aware of its own Missouri cases. This is typical of state court opinions on these issues. They often have blinders, and look exclusively, or almost exclusively, at their state’s cases. The result is a lack of historical and philosophical context.

State v. Green 470 S.W.2d 571 (Mo.banc 1971) (En Banc)

“These cases involve the question whether counsel appointed to represent defendant indigents charged with crime are entitled to receive compensation for services and reimbursement for out of pocket expenses. In the Green case the charge was felonious escape and in the Coleman case the charge was first degree murder. In each instance the applications for fees and reimbursement were allowed by the trial court, the court in the Green case directing that the sums be taxed as costs against the State and said sums be allowed and approved by the state auditor and treasurer and in the Coleman case that they be taxed as costs and be paid by the State of Missouri. In both cases . . . the State has appealed.

“In 1963, in Gideon v. Wainwright,[73] the United States Supreme Court held that the United States Constitution requires the State of Missouri, and other States, to furnish counsel to an indigent accused of crime. This means, in practical effect, that an indigent accused of crime cannot be prosecuted, convicted, and incarcerated in Missouri unless he is furnished counsel. The lawyers of Missouri, as officers of the Court, have fulfilled this State obligation, without compensation, since we attained statehood, although other persons essential to the administration of criminal justice (e.g. prosecuting attorneys, assistants to the Attorney General, psychiatrists, et al.) have not been asked to furnish services gratuitously. The question is whether the legal profession must continue to bear this burden alone. The question is one for the judicial department[74] and must be decided by this Court[75] We consider the following language from State v. Rush,[76] appropriate:

‘Although as we said above the assignment of counsel without compensation (except in murder cases) has been the rule in this State since 1795, the burden of those assignments has increased vastly. The increase has been not only in the number of assignments, but also in the demand a criminal case makes upon counsel. A criminal case used to be a fairly simple affair. The issue usually was a pure question of fact--did the defendant commit the crime? Today, with rapidly changing concepts relating to sundry matters, such as confessions, search and seizure, joinder of defendants, right to counsel, etc., the defense of criminal charges consumes far more time than when we came to the bar. To this must be added the impact of the right of the indigent, without cost, to appeal, and to press post-conviction proceedings and as well attacks in the federal courts. Further, the total demand will likely increase, for while criminal proceedings now dominate the stage, in the wings are other matters--minor offenses, juvenile delinquency, and civil commitments, areas in which counsel are now furnished but on a selective basis. We are satisfied the burden is more than the profession alone should shoulder, and hence we are compelled to relieve the profession of it.’

“We recognize, of course, that the legislative power of Missouri government[77] is vested in the General Assembly,[78] and that the General Assembly has never provided for payment of compensation to Missouri lawyers for their representation of indigents in criminal cases and in cases wherein they seek post-conviction relief.

“Accordingly, believing that a ‘permanent solution to the problem presented is an appropriate subject for the legislature’[79] and believing that the General Assembly should have the opportunity to respond to the position taken today by this Court, we hold and announce:

“(1) that the judgments are reversed and remanded with directions to strike the allowance of attorneys' fees and expenses; and

“(2) that this Court, after September 1, 1972, will not compel the attorneys of Missouri to discharge alone ‘a duty which constitutionally is the burden of the State.’[80] .

Seiler, Judge (concurring in result).

“I concur with the result reached in this case, but I would phrase the final paragraph of the opinion in terms so that it is clear this court and the trial courts can continue, when necessary, to require lawyers to serve as officers of the court, including representation of indigents in criminal cases. Courts cannot operate without lawyers. As Judge Albert Ridge put it years ago,[81] the operation of the courts is really done by ‘Judge and Company.’ The judge and the lawyers together are necessary for the courts to function. The lawyers cannot escape being officers of the court and cannot escape a certain amount of pro bono publico work, which inevitably go with the special and exclusive privilege of being allowed to represent others in the court. Despite the increasing (and I think regrettable) trend toward commercialization of the law profession, 1[82] these obligations remain a part of the practice of law and I believe thoughtful lawyers would not want it otherwise.

“It is impossible at this writing to foresee all the contingencies which may arise in the representation of indigents in criminal cases after September 1, 1972. There are certain to be instances, however, where the courts find it necessary to appoint counsel to represent an indigent, without compensation for time spent or reimbursement for out-of-pocket expenses. I do not take the opinion in today's case to mean the courts are surrendering their power to require a lawyer to perform his obligation as an officer of the court, even if it means doing so without financial reward or reimbursement. It would be a sad day for the courts and the profession if we get to the point where there is no obligation for a lawyer to serve as an officer of the court unless he is first assured of a fee.

“FINCH, Chief Justice (dissenting).

“I would affirm the judgments of the trial courts allowing attorneys' fees and reimbursement of expenses, and hence I must dissent from the principal opinion. I express my reasons in considerable detail because of the great importance I attach to the problem presented.

“The resolution of the ultimate issue of whether these claims were properly allowed involves several questions. The first of these is whether appointment of counsel was required. I agree with the conclusion in the principal opinion that such appointments were necessary under Gideon v. Wainwright.[83] Furthermore, the court was obligated to appoint counsel under the terms of § 545.820, which provides as follows:

'If any person about to be arraigned upon an indictment for a felony be without counsel to conduct his defense, and be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two, who shall have free access to the prisoner at all reasonable hours.'

“Actually, an obligation to furnish counsel to indigent defendants has been recognized by the State of Missouri since its very earliest days. The predecessor of § 545.820 was first enacted in 1825[84] and the statute has been carried forward virtually unchanged to the present time. A similar provision was in force in territorial days.[85] Also, Supreme Court Rule 29.01(a), provides that an accused has the right to appear and defend by counsel, and that if a person charged with the commission of a felony is indigent and unable to employ counsel, the court, on request, has the duty to appoint counsel to represent him. It is crystal clear, therefore, that in the administration of justice in this state the trial court in these two cases had no choice other than to appoint counsel to represent these defendants after the court had determined that they were indigent and unable to employ counsel themselves.

“The second question presented is whether attorneys so appointed are entitled to be compensated for their services and reimbursed for their out-of-pocket expenses if they so request. I agree with the principal opinion that this is a question for the judicial department, but, contrary to that opinion, I would hold that the attorneys were so entitled in these cases.

“Historically, the lawyers of this state have accepted appointment in indigent cases and as a public service have represented defendants therein without compensation. They were officers of the court and when asked to serve, have done so. This system has continued to the present time except in certain local areas where some of the task of defending such cases has been assumed, in part, by local public defender or legal aid offices.

“This practice to which I refer was established in this and other states at a time when the volume of cases requiring appointment of counsel was small and did not result in an unreasonable burden on members of the bar. As the principal opinion recognizes in quoting from State v. Rush[86] that situation has changed drastically. Experience in Missouri, just as in New Jersey, is that the increase in number and complexity of criminal cases in which appointment of counsel to represent an indigent defendant is required is such that a real burden is created. We know, from our own dockets, that the volume of criminal appeals has increased substantially and that a large percentage of these criminal appeals involve indigent defendants for whom attorneys have been appointed to try the case in the circuit court and then to brief and argue the same on appeal. The various briefs herein cite numerous statistics to show the substantial number of appointments in criminal cases. . . . For example, the fiscal note to House Bill No. 41, an Act Relating to public defenders and other appointed counsel for certain persons, introduced in the 74th General Assembly, estimated that on the basis of 1967 figures counsel would be required to defend indigents in almost 16,000 cases each year. 1[87] Some of the cases require a great amount of time. For example, in the case of State v. Nickens, Mo., 403 S.W.2d 582, the attorneys (in addition to preparation time) spent 13 days in actual court hearings on pre-trial motions, one mistrial, and a six-day trial, and then took an appeal in which a 300-page brief was filed. 2[88] The appointed attorneys spent approximately 1200 man hours on the appeal alone. In State v. Willie Curtis,[89] Judge Harry M. James, Circuit Judge of the City of St. Louis, pointed out that in one case the appointed attorneys individually incurred actual out-of-pocket expenses approximating $1500.00, for which they were not reimbursed, and, in addition, spent so much time that their regular law practice suffered considerably as a result. These cases are extremes, but many cases are very time consuming and burdensome. In the Coleman case, Mr. Porter, one of the attorneys, spent 145.25 hours, and Mr. Carmody spent 52.5 hours. In Green Mr. Carmody spent 104 hours.

“The history of handling indigent criminal cases without compensation or reimbursement has led many persons to conclude that because the state has licensed the attorney to practice law, he is required, as an incident of that license, to serve by appointment in indigent cases without compensation or reimbursement of expenses. At the same time, people do not expect others, even if licensed by the state, to furnish services gratis. For example, in the prosecution of criminal cases, the state is represented in the trial court by a prosecuting attorney and on appeal by the attorney general. No one would suggest that their license obligates them to serve in these cases without compensation. The services of doctors, dentists, and phychiatrists, including examinations for the purpose of testifying in the trial, often are required on behalf of persons accused or convicted of crime. These professional people, all licensed for such practice, are not expected to, and do not, as a general proposition, perform these services without compensation. Jails and prisons in which to house those charged with or convicted of offenses are required, and architectural and engineering services are necessary to design and build such facilities. Architects and engineers, although licensed by the state, are not expected to do this as a public service without compensation. Neither is the contractor and building material supplier expected to construct such facilities without compensation. No individuals are asked to feed or clothe them as a public service. The same can be said of many others who provide various kinds of services and goods for indigents accused of crime, or for that matter, for other indigents not involved in criminal proceedings but to whom the state furnishes services. Examples are legion.

“What reason is there, then, that attorneys should be asked or expected to assume this heavy burden and serve without compensation and at their own expense? I perceive none. In that connection, it is of interest to note that in the recent publication of the American Bar Association and the Institute of Judicial Administration entitled ‘Standards Relating to Providing Defense Services,’ written as a part of the American Bar Association Project on Standards for Criminal Justice, the following statement is made, page 34:

‘The legal profession has carried for many years the major part of the burden of representation in criminal cases. In so doing many individual lawyers have suffered personal hardship because of their loyalty to the tradition that no one should lack counsel because of indigency. Many private practitioners have devoted vast amounts of time which required them to neglect their paying clients and other responsibilities in order to perform needed services for indigent defendants. Society cannot justly impose this heavy demand on one segment of the population.'

“Decisions in other states requiring payment of compensation and expenses in representing indigent defendants include Abodeely v. County of Worcester, 352 Mass. 719, 227 N.E.2d 486; People ex rel. Conn v. Randolph, 35 Ill.2d 24, 219 N.E.2d 337; Honore v. Washington State Board of Prison Terms and Paroles, Wash., 466 P.2d 485; State v. Second Judicial District Court, 85 Nev. 241, 453 P.2d 421 (as to reimbursement of expenses).

“The third question presented is whether the courts of Missouri have authority to allow compensation and expenses as costs, as the courts did here. I find no difficulty in concluding that the trial courts did have such power.

“In the first place, § 545.820 made mandatory the appointment of counsel to represent these defendants. While it makes no provision as to compensation to be allowed for the services performed, the courts in appointing attorneys were acting in obedience to express statutory authority and direction. Necessarily, an obligation arises on the part of the state to pay for the services rendered pursuant to that statutory mandate. As the Supreme Court of Iowa said in Hall v. Washington County, (1850)[90] in upholding the right of appointed counsel to recover a reasonable fee for his services under an Iowa statute which directed appointment of counsel for indigent defendants: ‘* * * reasonable compensation to the person who performs that service is a necessary incident, otherwise the arm of the law will be too short to accomplish its designs. * * * But it is enough, here, to say that, whilst the statute requires the court to appoint counsel in a case like this, it is silent on the subject of pay for his services. It leaves that matter to be disposed of upon the principles of the practice of the common law. There certainly is no legal exception as to an attorney, so as to distinguish his case from any other functionary. * * * In this case, the right of an action in the plaintiff does not arise from an express contract; but it is necessarily given by the statute.

“Unless § 545.820 is construed to imply an obligation to pay the attorneys for the services rendered, as above suggested, it, in my judgment, would be unconstitutional. As the principal opinion notes, the regulation of the bar is a matter for the judicial department of government. The questions of what duties the license to practice law entails and what obligations attorneys have as officers of the court are for the judiciary to determine. Therefore, whether lawyers must bear the burden and expense of providing defense services on behalf of the state for indigent defendants is exclusively a subject for the courts to decide. It follows that if § 545.820 is construed as a statute imposing the obligation on lawyers to assume the burden of defending indigent defendants without compensation or reimbursement, it infringes on the judicial function of determining the duties of such attorneys, and is unconstitutional.

“On the other hand, if the statute is construed as implying an obligation on the part of the state to pay for the services rendered to indigent defendants, it does nothing more than establish what amounts to a public defender system for the state by providing for appointment and payment of attorneys in each case instead of establishing a full time public defender's office. So construed, § 545.820 is a valid statute. Actually, the bills for a public defender system introduced in the General Assembly in recent sessions provided for such a system in less populated circuits.

“It is well established that where there are two possible constructions of a statute, under one of which it would be constitutional and under the other unconstitutional, the interpretation resulting in upholding the validity of the law is to be adopted.[91] That rule dictates that § 545.820 be construed as implying the obligation to compensate attorneys appointed pursuant to the statute.

“Secondly (and more importantly), the court had an inherent right to order payment of the attorneys' fees and expenses as court costs irrespective of the existence of § 545.820. This court on numerous occasions has recognized and stated the principle that courts of general jurisdiction have the inherent power to do those things reasonably necessary to preserve their existence and function as a court, including the right to appoint persons needed to perform services essential to the functioning of the court. Such cases include Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.W.2d 181; Pogue v. Swink, 365 Mo. 503, 284 S.W.2d 868; State ex inf. Anderson v. St. Louis County, Mo., 421 S.W.2d 249; and State ex rel. Weinstein v. St. Louis County, Mo., 451 S.W.2d 99.

“In the recent Weinstein case, this court en banc unanimously held that the Circuit Court of St. Louis County had the inherent power to appoint and fix the compensation of personnel deemed essential to the proper functioning of the Juvenile Division of that court, provided such personnel and facilities were not supplied to the court by conventional methods. Failure to have those persons would have handicapped the juvenile court and limited its effectiveness in performing its functions, but it would not have had the effect of making the performance of those functions impossible. Failure of the juvenile court to have such personnel would not approach the seriousness of a situation in which counsel would not be available in criminal cases involving indigent defendants. Appointing defense counsel in these cases is an absolute prerequisite to the trial of the cases and the functioning of the entire system of criminal justice. Without them, there would be a complete breakdown in the administration of criminal justice in the State of Missouri, and the situation produced would be chaotic. I cannot imagine a more serious threat to the very existence of the judicial branch of government and the performance of its constitutionally mandated functions.

“In Weinstein[92] this court quoted with approval from Noble County Council v. State ex rel. Fifer[93] as follows:

‘However, the authority of the court to appoint a probation officer, fix his salary and require payment thereof, does not rest upon mere legislative fiat. The court has inherent and constitutional authority to employ necessary personnel with which to perform its inherent and constitutional functions and to fix the salary of such personnel, within reasonable standards, and to require appropriation and payment therefor. The necessity of such authority in the courts is grounded upon the most fundamental and far reaching considerations.

'The preserving of the constitutional framework of our government against encroachment by one branch upon another is one of the prime responsibilities of our courts. Within and dependent upon this structure of constitutional government, our people are blessed by a galaxy of rights, privileges and immunities guaranteed to us by constitutional declaration. * * *

'These mandates necessarily carry with them the right to quarters appropriate to the office and personnel adequate to perform the functions thereof. The right to appoint a necessary staff of personnel necessarily carries with it the right to have such appointees paid a salary commensurate with their responsibilities. The right cannot be made amenable to and/or denied by a county council or the legislature itself. Our courts are the bulwark, the final authority which guarantees to every individual his right to breathe free, to prosper and be secure within the framework of a constitutional government. The arm which holds the scales of justice cannot be shackled or made impotent by either restraint, circumvention or denial by another branch of that government. * * *’

“The foregoing language is very pertinent to the issue presented. Applying it to the situation here presented, I believe it necessarily follows that a court which has the right to direct that quarters be furnished and that essential employees be provided and paid has the inherent power to direct payment of necessary court costs in order to provide counsel constitutionally essential to the functioning of the court in the enforcement of the criminal laws of the state.

“The principal opinion makes no reference to the Weinstein case or other cases dealing with inherent authority. It does not mention or discuss the question of inherent authority. It states simply that the General Assembly has never provided for payment of compensation to Missouri lawyers for representation of indigents in criminal cases, but that a permanent solution ‘is an appropriate subject for the legislature.’ I am unable to ascertain from that language whether the court intends to imply, and thereby hold, that the trial courts lacked inherent authority in the situations here presented to assess attorneys’ fees and expenses as costs, or whether the court is saying simply that it is better to wait and see whether the General Assembly, following the announcement that counsel will not be required ‘to discharge alone a duty which constitutionally is the burden of the State,’ makes some provision by September 1, 1972, to take care of the situation. It also ignores § 545.820 and its effect.

“If the opinion is intended to hold that the courts lacked inherent authority to allow such fees and expenses, then, for the reasons indicated, I strongly disagree. Such a result seems to me necessarily to overrule Weinstein and the other cases announcing the doctrine of inherent authority without saying so. As I have indicated previously, I cannot believe that a court would have authority to direct the employment and payment of personnel in the Juvenile Court of St. Louis County for which money had not been appropriated, but lack authority to provide for counsel to indigent defendants, the absence of which would mean a complete breakdown of the system of criminal justice in Missouri. Stated in reverse, it is my view that if the court does not have the inherent authority to obtain and pay for counsel for indigent defendants, and thereby assure the continued enforcement of the criminal laws of the state, then necessarily it does not have authority to direct the employment and payment of additional personnel in the Juvenile Division of the Circuit Court when funds therefor have not been previously appropriated.

“If the principal opinion does not rely on lack of inherent authority, but rather reverses as a matter of policy (as to whether it was appropriate to allow fees and expenses as costs in these cases), I would say simply that I disagree with that conclusion. It seems to me that past events demonstrate clearly that conventional means for providing and paying counsel for indigent defendants have failed and that the trial courts were justified in directing payment of fees and expenses. Proposed legislation providing for a public defender system for Missouri (including, in some instances, payment of private counsel) was first introduced in the General Assembly in 1967. Similar proposed legislation has been before each successive session of the General Assembly at which the question could be considered. No public defender system and no other method providing for compensating counsel for indigent defendants has been forthcoming. 3[94]

“If the trial courts had inherent authority to allow such court costs or had a right to do so as a result of § 545.820, then their action in making the allowances in these cases would be subject to reversal only if there was an abuse of discretion in making the allowances. No contention is made by the state that the allowances made are unreasonable. The questions raised relate rather to the power of the courts to assess these costs. I find no basis for concluding that the trial courts have abused their discretion, and I find no error committed by the trial courts in these cases. Likewise, I am unable to find in the principal opinion where the majority of the court convicts the trial courts of error in making these assessments.

“The court in both of these cases directed that the allowances be taxed as costs against the state. The Attorney General's brief, while opposing completely the idea that any right to allow compensation exists, suggests that if the court concludes otherwise, any allowance made should be against the county rather than the state. Such a contention was considered by this court in the early case of Kelley et al. v. Andrew County.[95] There counsel had been appointed to defend an indigent accused of a felony. The court was asked to hold that the county was liable to the attorney for the reasonable value of his services. In response to the suggestion that, in the absence of a statute providing for payment for such services, members of the legal profession should serve without charge, the court said:[96] ‘Rejecting, however, the idea of gratuitous service in behalf of the class in question as too fanciful and romantic, and applying to the facts of the case the principles governing contracts express or implied, what were the legal relations and duties existing between the plaintiffs and the county of Andrew, as regards these services?’ The court concluded that it was the state which was prosecuting the defendant to enforce a state statute and that it was the policy of the state to relieve the county of such obligation. Accordingly, it held that the county was not liable.

“I believe that it is logical and proper that the costs of such services be taxed against the state rather than the county. This would appear to be in harmony with the policy of the state as to payment of costs in such felony cases. Sections 550.020 and 550.040, While the allowances here involved are not costs in the technical sense that they have been provided for by statute and denominated therein as costs, they nevertheless are fees incident to the trial of a particular case, and I think they are properly classified as costs and taxed as such. In civil litigation, when a guardian ad litem is appointed, it is customary for the court to allow compensation to the guardian ad litem and to order it paid as costs in that case. It is just as logical to order the state, in these cases, to pay as costs the fees which the courts order taxed in favor of defendants' counsel for the handling of the defense of these cases.

“Costs taxed against the state in criminal cases are appropriated in a lump sum by each session of the General Assembly. House Bill No. 3 of the Third Extra Session of the 74th General Assembly, approved by the Governor on June 22, 1970, appropriated funds for costs in criminal cases during the preceding fiscal period. That appropriation contained this language: ‘For costs in criminal cases, except payment of attorneys’ fees taxed as costs.’ A similar limitation was in the appropriation for the fiscal period commencing July 1, 1971.[97] In my judgment, that limitation against payment for attorneys’ fees taxed as costs is unconstitutional as in violation of the obligation of the state to provide counsel for indigent defendants in felony cases, and also as being an infringement upon the inherent right of the courts to determine and assess costs. I would hold that that limitation in the appropriation act is unconstitutional and hence unenforceable.

“Judge Seiler in his opinion concurring in result expresses the view that at least some lawyers will want to do some pro bono publico work. In that connection, I would point out that affirmance of these judgments does not mean automatic payment in every case, or that lawyers could not perform these duties without compensation. Fees and expenses would be allowed only if requested, and when requested, the amount thereof would be a matter for determination by the trial court, reviewable on appeal. The allowances made in these cases were based on compensation to the attorneys which was less than full compensation which they normally would charge. It was intended to cover overhead and something in addition to prevent substantial loss by the attorneys, as well as to reimburse them for actual out-of-pocket expense. That was as it should be. In such a system, the attorneys in extreme cases involving extensive services and hardship with reference to handling other law business would be entitled to greater allowances, but certainly there would be some cases where the court might conclude that no compensation other than perhaps reimbursement for out-of-pocket expenses should be made. Such a system would permit a reasonable amount of pro bono publico work but still protect the bar from the unreasonable burden with which it is now saddled.

“I strongly believe that these cases should be affirmed. Hopefully, the General Assembly will provide a permanent solution by a statewide public defender system or some other method of providing paid counsel for indigent defendants. If that is not done, we are in real trouble in the field of criminal law enforcement when September 1, 1972, arrives, unless at that time the majority no longer abstain from action and instead exercise the inherent authority which, in my judgment, must and does exist.

* * * * *

Perhaps leaving indigent defense to the legislature wasn’t a very good idea. Ten years after Green, Missouri was in a crisis. The Wolf was at the door.

In State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (Mo. banc 1981), cert. denied, 454 U.S. 1142, 102 S.Ct. 1000, 71 L.Ed.2d 293 (1982)

“On March 27, 1981, respondent advised relator that, unless prohibited by an appellate court, he would, on or before April 15, 1981, appoint relator to defend Joann Williams, in State of Missouri v. Joann Williams, No. 452742, pendinßg in the Circuit Court of the County of St. Louis. As the last sentence of his order, respondent also stated: ‘Under the present status of the appointed counsel fund, said attorney will not be paid or reimbursed for any of his expenses.’

“On April 17, 1981, this Court entered an order which read in part as follows: "Preliminary rule in prohibition ordered to issue returnable in ten days unless within five days hereof respondent deletes the final sentence from his order of March 27, 1981 and notifies the Clerk of this Court accordingly. * * *." Our preliminary rule in prohibition issued on April 23, 1981.

“In State v. Green,[98] this Court addressed the question of a lawyer gratuitously furnishing legal services to an indigent accused and said:

‘In 1963, in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the United States Supreme Court held that the United States Constitution requires the State of Missouri, and other States, to furnish counsel to an indigent accused of crime. This means, in practical effect, that an indigent accused of crime cannot be prosecuted, convicted, and incarcerated in Missouri unless he is furnished counsel. The lawyers of Missouri, as officers of the Court, have fulfilled this State obligation, without compensation, since we attained statehood, although other persons essential to the administration of criminal justice (e. g. prosecuting attorneys, assistants to the Attorney General, psychiatrists, et al.) have not been asked to furnish services gratuitously. The question is whether the legal profession must continue to bear this burden alone.’

“The Court held in Green that the legal profession need not continue to bear the burden alone. The General Assembly of Missouri responded with enactment of Chapter 600, RSMo 1978. It must be said that its response has been less than resolute:

“(1) In 1972, the General Assembly declared the public policy of Missouri to be that in cases where counsel, other than public defenders, are appointed to represent indigent defendants ‘the reimbursement of expenses and the attorney's fee for services shall be paid by the state from funds appropriated for that purpose.’

“(2) In 1977, the General Assembly declared, with certain stated exceptions, the public policy of Missouri to be that when a plea of not guilty is entered by an accused, his trial ‘shall commence within one hundred eighty days of arraignment.’ The sanction imposed for failure of compliance is possible dismissal of the charge against the accused.

“(3) However, in 1980, the General Assembly provided: ‘Under no circumstances may the expenditures from general revenue for the purposes provided in sections 600.010 to 600.160 exceed the amount, five million dollars, if and when appropriated by the general assembly for such purposes.’

“(4) And, for the fiscal year ending June 30, 1981, the General Assembly appropriated only a total of $3,475,894 for representation of indigent defendants.

“We must recognize that as of the date of this opinion the money appropriated by the General Assembly for the fiscal year ending June 30, 1981, has been spent. The cupboard is bare.

“What are we to do? ‘No money shall be withdrawn from the state treasury except by warrant drawn in accordance with an appropriation made by law * * *.’[99] We are reminded of our limitations by Alexander Hamilton in The Federalist No. 78: ‘The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.’[100] However, we cannot permit the administration of criminal justice in Missouri to grind to a halt.

“In these circumstances, we must turn again to the Bar of Missouri. We do so without apology.

“The inherent nature of the practice of law has been described as follows:

‘The term 'profession,' it should be borne in mind, as a rule is applied to a group of people pursuing a learned art as a common calling in the spirit of public service where economic rewards are definitely an incidental, though under the existing economic conditions undoubtedly a necessary by-product. In this a profession differs radically from any trade or business which looks upon money-making and personal gain as its primary purpose. The lawyer cannot possibly get away from the fact that his is a public task. In all probability the professional relation of a lawyer to his client arose out of status rather than contract. It called, and still calls, for something more than a mere merchant-customer contact. It was, and still is, based on ideas more nearly akin to that of a fiduciary relationship than one which originated from the principle of caveat emptor. The general public has need for a professional man in whom it can repose a particular type of confidence whenever it is faced with some distressing problems, often of a very personal nature. Hence the most important aspect of the practice of law is the fact that it is, and the inherent nature of things demands that it always shall be, a profession.’ [101]

“The premise that practice of law ‘in the spirit of public service’ is a primary consideration is articulated in EC 2-16 of Rule 4 of this Court:

“The legal profession cannot remain a viable force in fulfilling its role in our society unless its members receive adequate compensation for services rendered, and reasonable fees should be charged in appropriate cases to clients able to pay them. Nevertheless, persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in ethical activities designed to achieve that objective.’

“And, the lawyers of Missouri have taken and subscribed, in part, the following oath or affirmation prescribed in Rule 8.11:

‘I do solemnly swear * * *

‘That I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any person's cause for lucre or malice. So help me God."

“The question of lawyer professionalism was addressed in Bates v. State Bar of Arizona[102] wherein the United States Supreme Court held that lawyers' rights to advertise are protected by the First Amendment to the Constitution of the United States and rejected the view that the ‘hustle of the marketplace will adversely affect the profession's service orientation, and irreparably damage the delicate balance between the lawyer's need to earn and his obligation selflessly to serve.’ We hope, of course, that the Court's assessment is accurate.

“At the present time, the Court is becoming inundated with cases similar in nature involving non-payment of fees for the defense of the indigent. They include cases where accused indigents are being deprived of a reasonable defense by reason of lack of available funds necessary to prepare a proper defense for the accused and cases where lawyers are alleging that they are being denied the right to earn a livelihood for their family or in effect are being placed in involuntary servitude contrary to the thirteenth amendment to the United States Constitution. Because of insufficient funding of the Public Defender Program for the defense of indigents, the problem is currently approaching crisis proportion.

“In this background, the Court has concluded that the processing of the voluminous pending and threatened cases concerning representation of the indigent is neither economically desirable for the state nor is it in the best interest of the indigent accused, the legal profession, or the public.

“We believe that the best interests of the state of Missouri and the orderly administration of justice require that we at this time declare and establish temporary guidelines for meeting the problem of defense of the indigent accused. We believe our primary obligation is to the people to insure the continued operation of the criminal justice system, for without it, the peace of the community cannot be attained as the guilty cannot be convicted nor the innocent be acquitted. As a necessary part of this system the accused is entitled to counsel and, where indigent, counsel must be provided. It is our first obligation to secure to the indigent accused all of his constitutional rights and guarantees. We also have an obligation to deal fairly and justly with the members of the legal profession who are subject to our supervision. To accomplish these ends, we direct and order that the following temporary guidelines be followed by the judiciary and the members of the legal profession until the problem of defense of the indigent accused can be resolved in an orderly process by the Executive, Legislative, and Judicial branches of our government.

“1. In this case or any similar case, the respondent circuit judge is admonished by this Court to hold all accused to a high standard of proof of indigency and to make every effort possible to fully verify indigency.

“2. In this and any similar case, the respondent circuit judge should provide relator when requested with an evidentiary hearing as to the propriety of his appointment, taking into consideration his right to earn a livelihood for himself and his family and to be free from involuntary servitude. If respondent judge determines that the appointment will work any undue hardships, he should appoint another attorney. After hearing, we call on all members of the legal profession who may be appointed, to accept appointment and to exert their best efforts in the defense of the indigent accused; and to refuse[103] such service only with recognition that such refusal may be the subject of disciplinary action.

“3. Non-payment to a lawyer for a period in excess of one hundred and twenty days for any prior appointed service may be deemed by the court to be grounds for excusing the lawyer from additional appointment in other cases.

“4. We know of no requirement of either law or professional ethics which requires attorneys to advance personal funds in substantial amounts for the payment of either costs or expenses of the preparation of a proper defense of the indigent accused. If after evidentiary hearing, reasonable and necessary costs ordered advanced by the court are not forthcoming and available for preparation of the proper defense of the indigent within the time required by law for the trial of the accused,[104] or where the court is unable to find and appoint counsel for the indigent accused who can prepare for trial within the time required by law, the court should on proper motion where necessary to protect the constitutional rights of the accused, order discharge of the accused.

“5. Until further order of this Court, employment by government without further evidence of conflict with the interest of the indigent accused, shall not be deemed to be a bar to appointment by the Court to defend an indigent accused.

“6. To assure that this situation shall not become worse and the failure of payment of such services become larger and more intolerable, the Public Defender Commission is requested that from appropriated funds, all approved fees and costs shall be paid in the order certified to and received by the Commission.

“7. The Court will continue to urge the co-equal Executive and Legislative branches of government to each assume its share of responsibility for solution of the problem of defense of the indigent accused, realizing that the Court's action of this date is at best only temporary and stop gap because of the limitations upon our own power to make excessive demands upon those whom we are charged with supervising.

“8. For a reasonable period of time pending the solution of this problem, the members of the legal profession are advised that in its discretion this Court will decline to hear other than the most extraordinary of applications for writs or extraordinary relief. We expect that each member of the legal profession, as he or she has throughout history, to continue to honor the oath ‘That I will never reject, from any consideration personal to myself, the cause of the defenseless or the oppressed...’, with complete confidence that this Court will do all within its power to protect the rights of indigent accused and to implement the public policy set forth in Chapter 600, RSMo that those ordered to defend the indigent accused shall be fairly compensated for their expenses and services.

“For the present, the preliminary rule in prohibition is ordered quashed, without prejudice to reapply for extraordinary relief at any time that it may appear that the indigent accused is being denied a reasonable defense and a fair trial.”

* * * * *

State v. Roper 688 S.W.2d 757 52 A.L.R.4th 1031, 53 USLW 2521 (Mo. banc 1985)

Four years after Wolff, a judge attempted to rope a lawyer into representing an indigent prison inmate in a medical malpractice paper clip stitches case, without compensating the lawyer. The splintered Missouri court benefited from more research than its prior opinion. It was learning from the commentators and academics.

“Relator Stephen C. Scott seeks to prohibit Respondent Judge Ellen S. Roper from appointing him to represent an indigent prison inmate in an action to recover damages for an alleged medical malpractice. Relator challenges the constitutionality of § 514.040, RSMo 1978, purporting to authorize such an appointment and claims that compelled representation violates his rights under the federal and state constitutions. . . .

“The underlying suit, Jack L. Wright v. University of Missouri Medical Center and Doctor ‘John Doe,’[105] was filed pro se on August 25, 1983. The pleading was styled ‘Civil Tort Complaint for Medical Malpractice/Negligence.’ Attached to the pleading was a Motion to Proceed in Forma Pauperis, a Pauper's Affidavit, and a Motion for Appointment of Counsel. The essence of the complaint as set forth in the pleading is that permanent stitches were left in plaintiff's body after surgery by the physician and the hospital. Plaintiff claims $300,000 actual damages and $300,000 punitive damages.

“On August 29, 1983, the Honorable Ellen S. Roper, Judge, entered the following order: ‘Motion to Proceed in forma pauperis is sustained. Petition is ordered filed. Summons is ordered issued. Mid-Missouri Legal Services appointed to represent plaintiff.’ Mid-Missouri Legal Services filed a motion and affidavit for withdrawing as appointed counsel, alleging that their charter prohibited them from accepting fee-generating cases. Respondent permitted their withdrawal and appointed relator to represent plaintiff.

“Relator filed a ‘Motion to Quash Appointment of Counsel for Plaintiff and to Permit Counsel to Withdraw; Alternative Motion For Payment of expenses; and, Request to Hold Adverse Ruling in Abeyance to Permit Filing of Petition For Writ of Prohibition.’ On March 23, 1984, respondent conducted a hearing on these motions. At the hearing, relator testified that the statute under which the court was purportedly exercising its authority was unconstitutional. He further argued that plaintiff's case would require at least $2,500 in expenses in order to proceed. Plaintiff testified that he contacted one attorney in St. Louis, one in Kansas City, and one in Springfield but they would not take his case. He did not remember their names.

“Relator argues, inter alia, that requiring him to represent the plaintiff in the underlying action is an unconstitutional taking of his property without just compensation. He also avers that he cannot be compelled to advance litigation expenses because that would also amount to a taking of property without just compensation. He claims that such compelled representation is a violation of due process and amounts to an involuntary servitude. 1[106] Relator suggests that he was apparently appointed pursuant to § 514.040, RSMo 1978 inasmuch as no other authority for such appointment has been located. The Attorney General, on the other hand, arguing in behalf of respondent, contends that this duty imposed on the individual attorney is a ‘professional obligation to represent an indigent plaintiff as part of his duties as an officer of the court,’ and ‘[a]n applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining.’

I

“Although it is not clear that respondent relied solely upon § 514.040, RSMo 1978 to justify her appointment of relator, we initially address relator's argument that the statute is unconstitutional. The statute provides:

If any court shall, before or after the commencement of any suit pending before it, be satisfied that the plaintiff is a poor person, and unable to prosecute his or her suit, and pay the costs and expenses thereof, such court may, in its discretion, permit him or her to commence and prosecute his or her action as a poor person, and thereupon such poor person shall have all necessary process and proceedings as in other cases, without fees, tax or charge; and the court may assign to such person counsel, who, as well as all other officers of the court, shall perform their duties in such suit without fee or reward; but if judgment is entered for the plaintiff, costs shall be recovered, which shall be collected for the use of the officers of the court.

“This statute was first enacted in 1821, and it was passed against the background of already existing poor laws.[107] For example, the court of common pleas was already empowered to spend county funds for the maintenance of the poor.[108] Counties were saddled with the responsibility of supporting and maintaining their poor. When the legislature passed these laws, they intended to relieve a particular class of persons. For one hundred and seventy years the legislature has retained the classification for persons deemed poor: ‘[A]ged, infirm, lame, blind or sick persons, who are unable to support themselves, and when there are no other persons required by law and able to maintain them, shall be deemed poor persons.’ § 205.590, RSMo 1978. We do not believe that the plaintiff in the underlying suit can bring himself within the definition of the term as used by the legislature when § 514.040 was enacted 2[109] or that the statute authorizes the appointment in this case.

II

“The more important consideration is whether respondent has the inherent power to compel relator to serve as a plaintiff's counsel in a civil malpractice action without compensation and without provision for litigation expenses. We treat first relator's contention that he cannot be compelled to spend his own funds for litigation, such as for obtaining depositions and securing expert testimony.[110] In State ex rel. Wolff v. Ruddy,[111] this Court, faced with a situation ‘approaching crisis proportion,’ held that ‘[w]e know of no requirement of either law or professional ethics which requires attorneys to advance personal funds in substantial amounts for the payment of either costs or expenses of the preparation of a proper defense of the indigent accused.’[112] . To abandon this rule in a civil suit where the requirement of counsel is less compelling would be illogical and manifestly unjust, and we decline to so hold. While compelled representation without a source for litigation expenses might work a perversion of justice, we nevertheless must address whether the court can compel such representation independent of the issue concerning litigation expenses.

III

“The precise question of whether the court has the inherent power to appoint and compel counsel to serve without compensation in civil cases has not been resolved in this State. While there is a long history of appointment of counsel in criminal cases, no such similar history exists for civil cases. Appointments in criminal cases can be traced to statehood. Our first constitution authorized the appointment of counsel in certain criminal trials involving slaves.[113] Although this court long ago rejected the idea of gratuitous service as ‘too fanciful and romantic,’[114] in dicta in a later case it was noted that an attorney representing an indigent criminal defendant does so without compensation as an ‘officer of the court.’[115] During this time and until a later opinion by this Court, Missouri attorneys willingly accepted such appointments in the face of a growing hardship imposed on the Bar.[116] As one of the last states to decide the question, we held in 1971 that attorneys would no longer be compelled to render gratuitous service.[117]

“A similar paucity of case law concerning appointments in civil cases exists in other jurisdictions. 3[118] The vast majority of courts considering appointments without compensation do so in the context of a criminal case, and even these decisions contain a diversity of views. Of those courts addressing the issue of uncompensated criminal appointments it would appear that a majority would not require compensation. The ‘claimed majority,’ however, ‘is not nearly so solid or monolithic’ as one might expect.[119] A strong minority of courts adhere to the position that such compelled representation is unjustified and unconstitutional. We believe that it is essential to examine these various decisions, their efficacy, and their application to civil cases such as the one at bar.

“The issue of compelled representation in criminal cases first arose in the context of a suit by the lawyer against a county government to collect a fee having been awarded to him by the trial court. With the exception of Iowa, Indiana and Wisconsin, the majority of courts held that an attorney could not maintain an action against the county unless there was an express statutory authorization for funds. 4[120]

The courts in these early cases were less concerned with the plight of the attorney than with the liability of a governmental body. 5[121] A number of these courts, however, noted that lawyers are officers of the court and thus render their services gratuitously. In Vise v. The County of Hamilton, for example, the court observed that lawyers are officials of the court and ‘[t]he law confers on licensed attorneys rights and privileges, and with them imposes duties and obligations, which must be reciprocally enjoyed and performed.’[122] Generally, when holding that a county was not liable for an attorneys’ services absent legislative authorization, courts often bolstered their argument by suggesting that gratuitous service was an obligation incident to certain privileges accorded an attorney as an officer of the court.

“The doctrine that lawyers are officers of the court and accorded certain privileges is generally attributed to the common law of England. Few courts, however, discussed the doctrine's application in this country. The matter was mentioned in Leigh's Case,[123] where Judge Roane Commented:

It is not necessary, in this case, to consider whether, and in what degree attorneys are considered in this country (as they are in England ) officers of their respective courts; though it is easy to see that an attorney, in this country, not having as many privileges as the English attorneys, in consideration of which, that character is there holden to attach, a difference may probably exist in this country.[124]

“An early Pennsylvania case also illustrates that--while retaining some privileges--attorneys during the colonial period did not claim many of the exalted privileges such as ‘an exemption from arrest, or militia duty.’ Respublica v. Fisher & Mifflin[125] The absence of any such special privileges in Indiana, led the high court of that state to hold that no reciprocal obligation could be imposed on the attorney to render gratuitous service:

“The gratuitous defence of a pauper is placed upon two grounds, viz., as an honorary duty, even as far back as the civil law; and as a statutory requirement. Honorary duties are hardly susceptible of enforcement in a Court of law. Besides, in this state, the profession of the law was never much favored by special pecuniary emoluments, save, some years ago, in the case of docket-fees in certain contingencies. The reciprocal obligations of the profession to the body politic, are slender in proportion. Under our present constitution, it is reduced to where it always should have been, a common level with all other professions and pursuits. Its practitioners have no specific fees taxed by law--no special privileges or odious discriminations in their favor. Every voter who can find business, may practice on such terms as he contracts for. The practitioner, therefore, owes no honorary services to any other citizen, or the public.... The idea of one calling enjoying peculiar privileges, and therefore being more honorable than any other, is not congenial to our institutions. And that any class should be paid for their particular services in empty honors, is an obsolete idea, belonging to another age and to a state of society hostile to liberty and equal rights.

“The legal profession having been thus properly stripped of all its odious distinctions and peculiar emoluments, the public can no longer demand of that class of citizens any gratuitous services which would not be demandable of every other class. To the attorney, his profession is his means of livelihood. His legal knowledge is his capital stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic.

“Webb v. Baird[126] The officer of the court doctrine also arose in other contexts. 6[127]

“The seminal case in the twentieth century, decided in the wake of the United States Supreme Court decisions requiring the appointment of counsel for indigent defendants, is United States v. Dillon.[128] Relying heavily upon the brief of the appellant in that case, the Ninth Circuit held that the obligation to serve indigents on court order without compensation is ‘an ancient and established tradition’ and ‘a condition under which lawyers are licensed to practice as officers of the court ...’[129] The court rejected the argument that compelled service amounts to a taking of property without just compensation:

‘An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. Thus, the lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a ‘taking of his services.’[130]

“In an appendix to the opinion, the court reprinted appellant's brief detailing the historical foundation for its holding. The party in the brief argued that ‘[r]epresentation of indigents upon court order is an ancient tradition of the legal profession, going as far back as fifteenth-century England and pre-Revolutionary America.’[131] The brief concluded with language that parallels the holding of the court. The impact of the Dillon decision is clear, as subsequent opinions most often cite or quote language from the decision without discussion. 7[132]

“However, a number of these jurisdictions are beginning to question the ever increasing burden on the members of the bar. Their opinions expressly or impliedly suggest that at some time this growing burden may constitute a taking of property.[133] After noting that Dillon had illustrated that lawyers have traditionally been considered ‘officers of the court,’ one court held that it was proper to ask whether the traditional concept had become unfair and unjust and ‘whether the burden has become such that society should no longer expect the Bar to carry it alone.’[134] The court found the argument convincing, but chose to await legislative creation of a proposed state funded defender system rather than change the traditional rule at that time. Other courts have held that the time has arrived, and as a matter of policy relieved the bar of its burden.[135] For example, in State v. Rush, the New Jersey court observed that ‘there is no doubt that it was the professional obligation of the English and the American attorney to accept an assignment to represent an indigent defendant,’ but held that attorneys should not bear this burden alone and ordered compensation in future cases.[136] It might be noted that by the mid-twentieth century most state legislatures had already provided for some compensation.[137]

“In addition to the so-called historic role of attorneys as officers of the court, some decisions appear to rest upon a vague notion that lawyers have a professional obligation to provide gratuitous service upon court order.[138] [139] One court suggests that ‘[t]he high purpose and traditions of the legal profession require that this burden be shouldered by its members.’[140] Another fears the loss of professionalism.[141] Yet another suggests that ‘[t]he profession of law rests upon its commitment to public service and has long been recognized as a profession that requires its membership to engage in pro bono activities.’[142] The Code of Professional Responsibility and the accompanying ethical considerations are often invoked as a source for this professional obligation.[143]

“Unfortunately, the analysis supporting such arguments is ‘fuzzy and unconvincing.’[144] These arguments are flawed from the outset, as they overlook the debate among members of the American Bar Association over whether the Model Code of Professional Responsibility should be altered to require mandatory pro bono service.[145] The participants in this debate acknowledged that no such requirement previously existed in the Code:

Prior to 1969, the Code of Professional Responsibility made no reference to the issues which we are talking about this morning. In the early days of our profession, the code under which we as lawyers operated did not have a provision as to what were our personal or professional responsibilities for pro bono representation. The current code and its ethical considerations under which we are operating does speak to that issue. Characterizing the current code, it is at best an aspirational statement dealing with the issue as to whether or not we have a professional responsibility.[146]

“A proposed mandatory provision was rejected, and the current Model Code only expresses a policy favoring pro bono representation. See Rule 6.1.

“A substantial minority of courts take the position that an attorney may not be appointed to render gratuitous service.[147] For example, ‘[s]ince 1850 Iowa has stood among that strong minority of states (16 out of 34 jurisdictions that have addressed the issue) holding lawyers compelled to represent indigents must receive reasonable compensation.’[148] These courts reason that a lawyer's services are as much his property as a grocer's stock, an electrician's tools, or an individual's home. The mere power of the state to license certain occupations does not justify a taking of property:

In these modern times practitioners of the professions and of many arts, sciences, trades, and businesses are required to be licensed. The Legislature may in the future require the licensing of restaurant operators and grocers as a sanitary police measure. If a law should be enacted requiring every person licensed by the state to render services, or furnish the materials of their business, to paupers gratuitously, much difficulty would be found in justifying a decision holding the law unconstitutional as depriving the green grocer or the restaurant operator of his goods, or as depriving the physician, or the barber, or the plumber, or the electrician, or the mechanical engineer of his services, without compensation, while adhering to a rule that licensed attorneys' services may be taken without compensation.’[149]

“The majority of commentators also appear to reject the reasoning in United States v. Dillon. 8[150] A number of these authors take the position that a lawyer's services should be treated as a property right.[151] Two commentators, for example, aver that ‘[t]he privilege to practice law is a valuable property right. The right to engage in this vocation, or others, need not be predicated upon the relinquishment of constitutional rights.’[152] Some of these authors suggest that, if such an obligation can be said to exist, the duty to render gratuitous service can only be premised on the reasoning that lawyers have a monopoly to practice before the courts. It is argued that ‘the practice of law is a monopoly because it is limited to a select few and because that limitation results in restraints upon the public's use of legal services.’[153]

“The reasons underlying the monopoly argument are fraught with conceptual difficulties. First, no individual is personally denied the opportunity to argue his own cause. Although the complex nature of many legal issues may seem to make the presence of a person trained in law essential, anyone is free to either pursue a career in law or obtain the requisite legal knowledge. This fact has led a noted scholar in this area, Professor Geoffrey Hazard, to dismiss the monopoly argument as ‘absurd.’[154] Second, limiting the persons who can provide services in this and other professions is not for the personal advantage of its members but rather for the protection of the public.[155] Third, the monopoly argument must necessarily rest upon some unstated assumption, otherwise members of all occupations licensed by the state could be compelled to render gratuitous service.[156] Doctors, for example, might then be required to treat patients without receiving a fee.

“We next examine the validity of the officer of the court doctrine. Professor Shapiro explains that ‘[T]o justify coerced, uncompensated legal services on the basis of a firm tradition in England and the United States is to read into that tradition a story that is not there.’[157] Invoking the English tradition without a careful examination of that country's history overlooks the complexity of the history of the English legal profession. 9[158]

“The role of the English barrister most closely resembles today's American trial attorney. Barristers have at no time in English history been treated as officers of the court. 10[159] These lawyers were admitted to practice by the Inns of Court and subject to the control of the Inns of Court.[160] It is doubtful whether barristers could be compelled to represent a party.[161] Some evidence suggests that barristers present in the courtroom might--on the spur of the moment--be appointed to argue a ‘dock brief’ for a criminal defendant upon the ‘tendering to counsel the sum of one guinea[162] without the intervention of a solicitor.’ 11[163] [164]

“Technically, only English ‘attorneys’ were treated as officers of the court.[165] The role of the English ‘attorney’ has no counterpart in this country. Unlike barristers, attorneys ‘were admitted directly by the judges of the court’ and medieval statutes gave the court direct control over these officers.[166] The role of the attorney, as an officer of the court, resembled the role performed by staff members in the court engaged in ministerial duties.[167] The English legal historian Theodore Plucknett suggests that "[t]he barrister now looked upon the attorney as a superior sort of clerk; this was justifiable, for the attorneys were now regarded as technically part of the clerical staff of the courts."[168] Another commentator explains:

‘attorneys were treated as officers of the court because most of them initially had some independent official status, such as that of a clerk of the court or an under-sheriff. That status not only made them subject to regulation by the court but also gave them certain privileges: freedom from other public service and being subject to suit only in their own courts, both very important privileges in medieval England, not to mention the privilege of wearing court gowns. It was a natural development that when persons who did not have one of these official court positions began to function as professional attorneys, they sought to obtain the same title and attendant privileges of the attorneys who were court officers. It soon became commonplace to refer to all professional attorneys as officers of the court whether or not they held any other official court position.[169]

“As officers of the court, attorneys fell within the purview of the privileges accorded to the court, such as being exempted from suit in another court, serving in the militia, or being compelled to hold some other office (a general obligation imposed on subjects of the King).[170] It has been suggested that the ‘evidence of [these] privileges, and not the fact of court regulation or the duties of attorneys, was the basis of the title and status of officers of the court.’[171]

“The brief in the Dillon case, in addition to its confused understanding of English practice, focused only on the power of the court to appoint serjeants-at-law. "[L]ittle doubt [exists] that serjeants-at-law were expected to undertake such representation when they were called to by the court.’[172] The role of the serjeants-at-law also is unmatched in American practice. They were virtually public officials. During their prominence these lawyers were the elite among the profession--and titled the ‘Order of the Coif.’[173] Their position was akin to holding public office:

They constituted the elite not only among all English lawyers but among the members of the bar who tried cases in the King's courts. They had the exclusive privilege of practice in Common Pleas until the nineteenth century, they commanded much higher fees than their fellow counsel at the bar, they were chosen only after many years of practice and were initiated in an elaborate ceremony, the judges were selected exclusively from among their ranks, and they had numerous public functions to perform. Indeed the next step from serjeant to judge may well have been a less significant one. In any event, the serjeant-at-law was an ‘officer of the court’ in the truest sense; he held ‘a public office,’ sometimes even on government salary. He has no counterpart in American practice...[174]

“Although no evidence suggests that serjeants-at-law were ever compelled to render gratuitous service, the expectation that they would render such service derived from their public status.[175] Their privileged order was dissolved in the middle of the nineteenth century.[176]

“It seems apparent, therefore, that we cannot transplant the English experience onto American soil, nor can we merely claim that lawyers are ‘officers of the court’ based upon English precedent. Attempts to do so overlook the ambiguity surrounding the use of ‘appointed’ counsel in English practice, and such attempts fail to recognize that America departed from the traditional English model for the legal profession. Unfortunately, the oft-repeated doctrine that lawyers are officers of the court and as such may have conditions imposed by the court on their privilege to practice law has been ‘used as an incantation with little or no analysis of what the title means or why a particular result should flow from it.’[177] For these reasons, we believe that the time has come to abandon invoking the doctrine that lawyers are officers of the court--or, as some courts suggest, public officers--and lay to rest this anachronism from English legal history. In lieu of the doctrine, decisions should rest upon sound reasoning and analysis.

“First, the burden imposed on attorneys in criminal cases when the early decisions were rendered was minimal:

At one time, representing the indigent criminal defendant was a relatively simple and straightforward matter. While there were some minor technical aspects to a criminal prosecution, for all intents and purposes an attorney's duty was simply to conduct a defense at trial with the normal measure of competency.

“State ex rel. Partain v. Oakley, 227 S.E.2d at 322. The situation today, coupled with the expanded right to counsel and the increasing crime rate, is quite different:

[C]ontemporary jurisprudence has introduced a greater degree of complexity into the representation of criminal defendants. Today, the defense lawyer in a criminal case is confronted with a myriad of fine points with which he must deal. The modern criminal lawyer must engage in complicated and detailed pre-trial discovery, analysis of involved issues of search and seizure, occasional scientific jury selection, elaborate rules relating to conspiracy, and in addition must be conversant with the forensic sciences, medicine, psychiatry and other disciplines unrelated to the practice of law.

“Id.

“Second, the nature of law practice has changed dramatically over the last fifty to one hundred years. For example,

‘Skyrocketing overhead costs have greatly changed the lawyer's financial picture, amounting to as much as one-half his gross income. Complicated office equipment, library expenses, staff, rent, the telephone and other expenses take their toll. In addition, time spent representing an indigent defendant is time the attorney cannot spend on more profitable matters.’

“State v. McKenney[178] The Bar has become increasingly specialized with fewer attorneys skilled in trial practice:

‘Literally thousands of our lawyers, sad to relate, never see the inside of the court room at all. Not only has the bar itself been divided into specialties but of the very small percentage of lawyers who can be said to be trial lawyers an even smaller percentage of them have developed skills in the practice of criminal prosecution and defence. It is unjust that this comparative handful of individuals should alone bear the burdens which are rightly those of all of the bar and indeed of the community and the taxpayers. The regrettably small segment of the bar which has engaged in trial work has cheerfully borne the burden of representation of indigents over the years and these lawyers are frequently those who are less able to afford that burden than some of the brothers not in trial practice. This is inequitable.’

....

“We do not forget what we have said about the holdings in the great majority of other States based on the theory which we ourselves have expressed, that the bar has a duty to undertake the defence of indigents without compensation and that that obligation accompanies a license to practice at the bar. But times have changed. We do not deal with a profession where it is commonplace for a