Friday, October 19, 2007

New Dallas Grand Jury Policy-Texas Lawyer

Dallas Policy Lets Defense Attorneys Address Grand Juries
By John Council
Texas Lawyer

Monday, October 1, 2007

It's often said that a prosecutor could indict a ham sandwich if she wanted to. But a new procedure that goes into effect this month in Dallas County will give criminal-defense lawyers a chance to take their clients off the grand jury's menu.

Starting Oct. 4, the Dallas County District Attorney's Office will offer criminal-defense attorneys the opportunity to appear before grand juries to make presentations on behalf of their clients.

Under §20.03 of the Texas Code of Criminal Procedure, state prosecutors largely control grand jury proceedings, in which a panel of citizens decides in secret whether probable cause exists to indict a person charged with a felony.

The law allows an attorney for the accused to address the grand jury "if approved by the state's attorney," according to §20.04 of the code. Some Texas prosecutors allow criminal-defense lawyers to appear before a grand jury on a case-by-case basis, yet few large DAs' offices have a general policy of approving those appearances.

But that's exactly what Terri Moore, Dallas County's first assistant district attorney, plans to let criminal-defense attorneys do — with some limitations.

"This is all about fairness," says Moore, who proposed the change. "Obviously, they can't be in the grand jury room while business is being conducted. They can't question witnesses."

Moore believes a better-informed grand jury will result in weak cases being disposed of earlier in the process instead of later — an effort she believes will benefit everyone involved in the system, including prosecutors, criminal-defense lawyers and their clients.

"This is not a railroad we are running," Moore says. "This is a justice system."

The Dallas County DA's Office will become the largest DA's office in Texas with such a practice. The Tarrant County DA's Office is the only other large office that follows such a policy. Moore is a former Tarrant County assistant DA.

Criminal-defense attorneys criticized the Dallas County DA's Office in the early 1990s for not screening cases closely enough before submitting them to grand juries. The result was that questionable cases clogged the felony courts, says George Milner III, a former Dallas prosecutor who now is a criminal-defense attorney. But in recent years, the office has cut down on weak cases by placing more-experienced prosecutors in the intake and grand jury divisions, adds Milner, a partner in Dallas' Milner & Finn.

The Dallas DA's Office, like most district attorney's offices around the state, has had a longstanding practice of allowing criminal-defense lawyers to submit letters to grand juries summarizing their clients' views of cases. But letting criminal-defense lawyers inside the grand jury is a different situation, Milner says.

"It's a big change," he says. "If there's a specific issue, you can talk about it with the grand jury. It provides for much more dynamic representation as opposed to submitting a written summary."

"It's unusual," Southern Methodist University Dedman School of Law professor Fred Moss says of the policy.

Moss says that laws in 19 states allow criminal-defense attorneys into grand jury rooms to counsel clients who choose to testify, but Texas is not one of them. The clients can exit the room to ask their lawyers questions, though, says Moss, who teaches criminal law.

"It's an interesting gambit but certainly has pitfalls for both sides," Moss says. "The question is why would a DA do that and why would a defense attorney want to go in there and lay out their case so early? It's sort of a high-risk strategy on both parts."

Not So Fast

Other Texas DAs' offices are not so keen on a policy that lets defense lawyers inside grand jury rooms. The main reason is that grand jury deliberations are not meant to be adversarial proceedings, several district attorneys say.

"It's advocacy, and it doesn't seem to have a place in grand jury. I tell my staff not to advocate on true bills," says Harris County District Attorney Chuck Rosenthal. "It's a matter of whether we want to have someone come in and advocate for a particular position."

Matt Bingham, Smith County's DA, also questions the need for having defense attorneys in grand jury rooms. Grand juries often request that defendants testify. But by the same token, criminal-defense lawyers often urge their clients not to testify to keep them from incriminating themselves, he says. Bingham wonders why a criminal-defense attorney should be allowed to take the place of a client before a grand jury.

"I think the thing would be: Why is the defendant not testifying and where is the attorney's information coming from?" Bingham asks. "I don't call witnesses before a grand jury to speculate on what the facts are. I want to bring witnesses before a grand jury that have personal knowledge."

Bill Wirskye, a former Dallas County assistant DA who left the office in January to become a criminal-defense lawyer, believes the practice could cause some problems for Dallas prosecutors, who present as many as 80 cases before a grand jury per day. Allowing defense attorneys to become part of the process could slow it down, he says.

"As a prosecutor you have to guard against the grand jury's tendency of having a jury trial down in the grand jury as opposed to having a probable-cause hearing," says Wirskye, an attorney with Dallas' Fitzpatrick Hagood Smith & Uhl. "I can see some practical problems from the DA's perspective."

But overall, Wirskye believes the idea is a good one.

"It adds to the appearance that the DA's office is doing the right thing, which is good in the long run," he says.

The bigger risk of the new procedure may be for criminal-defense attorneys themselves, three lawyers say.

A problem could pop up if a criminal-defense lawyer tells the grand jury one thing and the client testifies later at trial to something else, says Brad Lollar, chief of the Dallas County Public Defender's Office. The criminal-defense lawyer could have just committed a crime, Lollar says.

"If the attorney turns out to tell the grand jury something that isn't true, can they get themselves indicted for aggravated perjury?" Lollar asks. "Obviously we were not there at the scene of the crime. Are we testifying, or are we talking to them off the record? And if we're testifying, I don't know too many attorneys that will want to do that. Everything we know we know through the clients."

Moore says the plan is not to make criminal-defense lawyers witnesses.

Still, there are details involving criminal-defense lawyers' presentations that need to be worked out, says John Grau, a Dallas County assistant DA who is chief of the intake and grand jury divisions.

"That's one of the last little wrinkles I'm trying to figure out," Grau says. "If the story changes, there will be a record if it changes. I don't expect that will happen. And I think people will give versions that their client gives. But it is possible that the attorney gives a version that the client decides isn't good" and leaves the lawyer hanging out there.

Then there's the potential that the grand jury will ask the criminal-defense lawyer questions they aren't prepared for or are not in their clients' best interests to answer, Grau says.

"They might get asked questions by the grand jury, and it could be an interesting question," Grau says. "They're going to have to be careful as to what's a problem for them. If they [a grand juror] ask a question that they can't answer, is that going to torque off the grand jury worse than if they hadn't appeared? That's why I suggest the defense lawyer come see me. I don't want to know your secrets, but I'm more than willing to tell them that's a good path or a bad path."

There's also the possibility the grand jury may not want to hear from a criminal-defense attorney, Grau says. Grand juries are in control of which witnesses they want to hear from, he says.

"That will take a little bit of finesse on our part. Because I have had grand juries that are quintessentially conservative who didn't want to hear anything from a defense lawyer," Grau says.

But another aspect of the office's policy is that new grand jurors will hear from a criminal-defense attorney during their orientation about the importance of listening to both sides of a case, Grau says.

During the grand jurors' Oct. 3 orientation, Robert Udashen, a partner in Dallas' Sorrels & Udashen and president of the Dallas Criminal Defense Lawyers Association, will give a presentation about the importance of the decisions they make.

"I will stress what a monumental thing it is to return an indictment — it can ruin someone's life," Udashen says. "Even if they're found not guilty, it follows a person around."

Tarrant County's Policy

Since the 1970s, the Tarrant County District Attorney's Office has had a policy of allowing criminal-defense attorneys to make grand jury presentations.

"We want the grand jury to know everything that is relevant out there," says Kurt Stallings, a Tarrant County assistant DA who is chief of the Pretrial Division, which oversees the grand jury. "And it is not unusual for us to contact a criminal-defense attorney and ask them if they would like to make a presentation to the grand jury."

"We may run into witnesses that say, "You don't know the whole story,' " Stallings says. "And we'll call the defense attorney and say, "Do you know anything about this?' and invite them in. It's not fair to anybody to go all the way to a jury and find out, oops, somebody was lying."

Stallings doesn't recall any problems with the policy.

Sometimes it works out better for the client that his defense lawyer makes a presentation instead of the client testifying, Stallings says.

"The reason this guy has a defense lawyer is he isn't that smart," Stallings says. "That's the whole reason he needs a defense lawyer."

Tim Evans, a criminal-defense lawyer with Fort Worth's Evans Gandy Daniel & Moore, says he has made grand jury appearances periodically during his 20-year career that have resulted in 10 to 15 no bills.

Evans says not every case he handles is worth him making a grand jury appearance.

"It has to be something marginal proofwise or something that has a special equitable argument: "Yeah this happened, but is this really something you want to prosecute as a policy matter?' " Evans says. "I mean, Lord knows we have some real live cases that need prosecuting. But quite frankly there are some that don't measure up and need resolving" before indictment.

Evans says Tarrant County's policy has been good for everyone at the courthouse.

"I can't believe that all the DAs' offices in the state don't do it," Evans says. "And I'm pretty excited that the Dallas DA's office is doing it."

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Collin County Fireworks in Court



No. PD-1084-05








Holcomb, J., delivered the opinion of the Court, in which Price, Womack, Johnson, and Cochran, JJ., joined. Keller, P.J., and Meyers, Keasler, and Hervey, JJ., dissented.

We granted appellant's petition for discretionary review in order to determine whether he was denied his Sixth Amendment right to the effective assistance of counsel. We hold that he was denied that right.

On December 12, 2003, the criminal district attorney of Collin County filed an information in the trial court charging appellant with misdemeanor driving while intoxicated. See Tex. Pen. Code § 49.04(a). On September 20, 2004, after several prior settings, the State brought appellant to trial, with the Honorable John O. Barry presiding. The trial, including jury selection, lasted two days.

On the morning of the first day, shortly before jury selection began, defense counsel, Christopher N. Hoover, presented the trial court with an oral motion for continuance and a written motion to recuse. The oral motion for continuance was apparently based on appellant's alleged need for an expert to assist in the preparation of his defense. (1) The written motion to recuse alleged, in pertinent part:

"About four weeks ago, counsel tried State of Texas v. Jason Dixon before Judge Barry. During that trial Judge Barry appeared to personally attack the undersigned and was not fair and impartial. Events that occurred during that trial are the subject of a complaint with the Judicial Conduct Commission being drafted by Mr. Hoover."

The trial court, without hearing argument, denied the motion to recuse. Defense counsel then moved that the motion to recuse "be heard by a neutral judge," but the trial court denied that motion, too. Defense counsel then announced that he was "not ready for this trial," that he would "be unable to effectively represent [his] client," and that he could, therefore, "not participate" in the trial. The trial court then denied the previously-made oral motion for continuance, and jury selection began. Defense counsel, true to his word, declined to participate in jury selection, explaining once again that he was "not ready for this . . . trial," that he was "unable to effectively represent" his client, and that he was "unable to proceed."

On the afternoon of the first day, the guilt stage of the trial began. At the beginning of the guilt stage, defense counsel presented the trial court with an amended written motion to recuse. The amended motion, like the earlier motion, alleged that Judge Barry's fairness and impartiality were

in question and that they were, in fact, the subjects of a complaint that defense counsel was preparing to lodge with the Judicial Conduct Commission. Defense counsel did not ask for a ruling on the amended motion to recuse, however, and, so far as the record shows, the trial court did not make one. (2)

After the State read the information to the jury, the trial court asked appellant how he pled, and defense counsel responded that the defense was "not ready for trial" and could "not enter a plea at [that] particular time." The trial court then entered, on appellant's behalf, a plea of "not guilty." The State then made its opening statement. Defense counsel, though given the opportunity to make an opening statement, declined to do so, explaining once again that he was "not ready" and was "unable to render effective counsel."

The State proceeded with its case-in-chief, which consisted of the testimony of four witnesses - three police officers and an intoxilyzer technician - and some exhibits. The State's evidence, which included incriminating hearsay testimony, (3) was to the effect that, on the early morning of October 3, 2003, in Collin County, appellant, while intoxicated with alcohol, operated a van that was involved in a one-vehicle accident. Defense counsel, though given the opportunity, declined to cross-examine any of the State's witnesses or make any objections. Once the State rested, defense counsel declined to offer any defense. The trial court then announced, on appellant's behalf, that "[t]he defendant rests." The State then closed. Shortly thereafter, the trial court announced to all that the court would be in recess until 1:00 p.m. the following day.

When the trial court reconvened the next day, defense counsel presented the court with a written motion for continuance and an oral motion for instructed verdict. The written motion for continuance alleged, in pertinent part:

"This is an accident DWI case in which the defendant submitted to the taking of a sample of his breath after arrest. The result exceeded the legal limit of 0.080.

"In the accident, the air bag deployed in the defendant's vehicle. This introduces the unique issue of whether or not the air bag effected [sic] the breath test results as found in the 'Tindall Effect.'[ (4)] This issue is one that requires testimony from an expert with particular knowledge and training in forensic breath testing.

* * *

"The testimony of this expert witness is critical to the defense in this case and such an expert is not available on this date to appear for trial."

Defense counsel did not ask for a ruling on the written motion for continuance, however, and, so far as the record shows, the trial court did not make one. (5)

With respect to defense counsel's oral motion for instructed verdict, the record reflects the following:

Defense Counsel: Your Honor, although I was not ready for this trial when it began yesterday, I did have the opportunity to sit here and listen to the entire State's case-in-chief. And I'm going to point out to the State the cases of Ballard v. State, 757 S.W.2d 389; McCafferty v. State, 748 [S.W.2d] 489; Johnson v. State, 517 S.W.2d 536; and Weaver v. State, 721 S.W.2d 495, and ask that the court grant an instructed verdict of "not guilty" in this case in that, as a matter of law, the State's proof is insufficient to prove either that Darrell Cannon drove or operated the van or that he was intoxicated at that time, because I believe there's been no evidence elicited as to the time differential between the accident and the police officer's arrival that performed the field sobriety exercise.

The Court: Now, one moment, please.

Defense Counsel: And let the record reflect that I have provided the court with copies of those court cases.

* * *

The Court: Now, motion for instructed verdict denied.

After the jury returned to the courtroom and the trial court confirmed that all of the witnesses were still present, the following occurred:

The Court: Mr. Hoover, even now, if you wish to reopen and recall any of the witnesses who previously testified, you may do so.

Defense Counsel: I understand, Your Honor. Again, I'm inadequately prepared to render effective legal assistance to Mr. Cannon and again persist in my announcement of not ready.

The trial court then read the charge to the jury, and the State made its closing argument. Defense counsel, though given the opportunity to make a closing argument, declined to do so, explaining once again that he was "not ready" and was "unable . . . to assist Mr. Cannon in his defense."

The jury retired to deliberate. Fifteen minutes later, the jury returned a verdict of "guilty." The following then occurred:

The Court: Now, Mr. Hoover, I see no written election on file. I see no written application for community supervision on file. If, however, you contend that the defendant has elected that the jury assess the penalty in this case, I respectfully ask that you call my attention now to your position. If you have elected the jury assess punishment in this case.

Defense Counsel: Your Honor, as a matter of law, the court assesses punishment in these circumstances.

The Court: And, therefore, there's no reason why the jury should not now be discharged, correct?

Defense counsel: None that I know of, Your Honor.

The trial court then discharged the jury. Both the State and defense counsel indicated that they would offer no evidence on the question of punishment. The State then presented argument on punishment, followed by defense counsel's "argument," which, in its entirety, was as follows: "Your Honor, indeed you did hear the facts of this case. And you've heard several hundred pleas, probably. We believe that you can adequately assess the punishment well within the range provided by law." The trial court assessed appellant's punishment at confinement for ninety days, probated, and a fine of $1,000. The following then occurred:

Defense Counsel: Your Honor, I have one question.
The Court: Go ahead, Mr. Hoover.

Defense Counsel: At one time you pronounced the sentence at ninety days confinement, probated for two years. And then you said ninety days, probated for eighteen months.

The Court: I thank you for calling my attention to the error. Is [sic] the judge's intention that the period of [community] supervision be for eighteen months, not twenty-four months or two years. And to the extent that it was described orally differently, it is not to be regarded. The period of supervision is for eighteen months.

On direct appeal, appellant, citing both United States v. Cronic, 466 U.S. 648 (1984), and Strickland v. Washington, 466 U.S. 668 (1984), argued for the first time (6) that he was denied his Sixth Amendment right to the effective assistance of counsel because "the refusal of counsel to participate in the trial" resulted in "no adversarial testing of the prosecution's case." "In this case," appellant continued, "there was no trial strategy [on counsel's part]. Counsel was [simply] unprepared to go forward and repeatedly informed the trial court of his reason for not participating." Finally, appellant argued that, "[i]n these circumstances," prejudice to the defense "is irrefutably presumed."

The Fifth Court of Appeals, in an unpublished opinion, rejected appellant's arguments and affirmed the judgment of the trial court. Cannon v. State, No. 05-04-01479-CR (Tex.App. - Dallas 2005). The court of appeals explained its decision as follows:

"Although defense counsel at various times stated he was 'not ready,' 'unprepared,' and 'could not effectively represent his client,' appellant points to no specific errors of counsel that prejudiced appellant, except for the lack of cross-examination. Often, [however,] the decision to not cross-examine a witness is the result of wisdom acquired by experience in the combat of trial.

"Moreover, on the second day of trial, defense counsel did participate. Counsel moved for an instructed verdict due to the State's failure to carry its burden of proof. He cited cases to the court and provided the court with copies of those cases. Counsel also pointed out to the trial court its mistake in sentencing which would have adversely affected his client. In light of the evidence against his client for which he may have had no defense, notwithstanding his comments, defense counsel's actions could have been the product of a reasonable tactical judgment. Without a fully developed record, we could only speculate as to counsel's strategy. This we refuse to do.

"The right to the effective assistance of counsel is not recognized for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated. Appellant does not specify how the challenged conduct affected the reliability of the trial process, nor may we presume such effect based on the external constraint of the trial court putting appellant to trial.

"Based on the standard set out in Cronic, appellant has not met his burden to demonstrate his claimed constitutional violation that he did not receive a fair trial. Nor has appellant presented us with a record sufficiently developed to meet his burden under Strickland to show he was prejudiced by specific errors of counsel. We resolve appellant's issue against him." Id., slip op. at 13-14 (citations and some internal punctuation omitted).

Appellant later filed a petition for discretionary review containing three grounds for review, two of which we granted. (7) See Tex. R. App. Proc. 66.3(c). In his petition and accompanying brief, appellant argues that the court of appeals erred in failing to recognize that "the total lack of participation by defense counsel constitute[d] ineffective assistance" under both United States v. Cronic, 466 U.S. 648, and Strickland v. Washington, 466 U.S. 668. He further argues that, given the record of defense counsel's deficient performance at trial, there is no need "to develop any other testimony by post-conviction writ." In its response brief, the State argues:

"The court of appeals did not err in finding Appellant was not denied his Sixth Amendment right to counsel under either the Cronic or Strickland standards. Appellant was not constructively denied counsel under Cronic because trial counsel was acting on Appellant's behalf and exercising effective trial strategy throughout the proceedings.[ (8)] Furthermore, counsel deserves the opportunity to explain his representation before being denounced as ineffective under Strickland. Additionally, Strickland requires that prejudice be demonstrated on the face of the record, and the record in the instant case does not show prejudice as a result of counsel's actions."

The State also argues that a finding of ineffectiveness of counsel in this case would encourage other defense counsel to engage in the kind of behavior at issue. The State cites United States v. Sanchez, 790 F.2d 245 (2nd Cir. 1986); Martin v. McCotter, 796 F.2d 813 (5th Cir. 1986); and Warner v. Ford, 752 F.2d 622 (11th Cir. 1985), in support of its various arguments.

The Sixth Amendment to the Constitution of the United States provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." The Sixth Amendment right to counsel applies to, among other proceedings, state criminal prosecutions in which, as in the instant case, the defendant is accused of a misdemeanor and a sentence of incarceration is actually imposed. Scott v. Illinois, 440 U.S. 367, 373 (1979). This right to counsel is not merely the right to have counsel physically present in the courtroom; it is the right to have the effective assistance of counsel in the courtroom. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970).

In the usual case, an appellant, in order to obtain a reversal of his conviction on the ground of ineffective assistance of counsel, must demonstrate both deficient performance and prejudice. That is, he must demonstrate that: (1) defense counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. at 687. (9) However, if an appellant can demonstrate that defense counsel "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing," so that there was a constructive denial of the assistance of counsel altogether, then prejudice, because it is "so likely," is legally presumed. United States v. Cronic, 466 U.S. at 658-659. See also Bell v. Cone, 535 U.S.685, 696-697 (2002) (noting that, under Cronic, defense counsel's failure to test the prosecution's case must be "complete" before prejudice is presumed); Strickland v. Washington, 466 U.S. at 692 ("constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice"); Ex parte McFarland, 163 S.W.3d 743, 752-753 (Tex.Crim.App. 2005) (discussing constructive denial of counsel and presumed prejudice). (10)

In determining whether defense counsel "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing," we are guided by the following passage in Cronic:

"[T]he adversarial process protected by the Sixth Amendment requires that the accused have 'counsel acting in the role of advocate.' The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted - even if defense counsel may have made demonstrable errors - the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated." 466 U.S. at 656-657 (citation and footnotes omitted).

In the usual case in which an ineffective-assistance claim is made, "the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional." Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). However, there are rare ineffective-assistance cases in which the record is sufficient for an appellate court to make a decision on the merits. Andrews v. State, 159 S.W.3d 98, 101-102 (Tex.Crim.App. 2005).

This is one of those rare cases. Here, defense counsel, at the start of voir dire, moved for a continuance and for recusal of the trial court judge. The trial court first denied the motion for recusal and then, a few moments later, it denied the motion for continuance. Immediately after the trial court denied the motion for recusal, defense counsel declared that he was "not ready for this trial," that he would "be unable to effectively represent [his] client," and that he could, therefore, "not participate" in the trial. Thereafter, defense counsel declined to participate in jury selection, declined to enter a plea for his client, declined to make an opening or closing argument to the jury, declined to cross-examine any of the State's witnesses, declined to make any objections, declined to offer any defense, declined to request any special jury instructions, and declined to offer any evidence or argument with respect to punishment. On the other hand, defense counsel did move for an instructed verdict, and he did bring to the trial court's attention the trial court's mistake in sentencing, which could have affected appellant.

Defense counsel, throughout appellant's trial, repeatedly stated the reason for his behavior: he was simply unprepared to go forward. We take counsel at his word and will not speculate that he may have had some other motive for his behavior. We also note that the record contains no suggestion that appellant failed to cooperate with defense counsel, or that appellant directed, agreed with, or acquiesced in defense counsel's behavior.

We hold that defense counsel's behavior, considered as a whole, constructively denied appellant his Sixth Amendment right to the effective assistance of counsel. Defense counsel, although physically present in the courtroom at all the requisite times, effectively boycotted the trial proceedings and entirely failed to subject the prosecution's case to meaningful adversarial testing. By his refusal to participate, defense counsel abandoned his role as advocate for the defense and caused the trial to lose its character as a confrontation between adversaries. Prejudice to the defense is legally presumed.

The State's reliance upon United States v. Sanchez, 790 F.2d 245; Martin v. McCotter, 796 F.2d 813; and Warner v. Ford, 752 F.2d 622, is misplaced, because those cases are distinguishable on their facts. In United States v. Sanchez, the defendant, Ramon Sanchez, was indicted for several drug offenses and, after deliberately absenting himself, was tried in absentia over his court-appointed attorney's objection. Defense counsel, who had little opportunity to consult with Sanchez before he disappeared, chose to remain silent throughout the trial, except that he moved for a judgment of acquittal and he objected to the court's instructions to the jury regarding Sanchez's absence. Sanchez was convicted and later appealed. On appeal, Sanchez argued that his attorney's silence at trial denied him the effective assistance of counsel. The United States Court of Appeals for the Second Circuit disagreed, explaining that Sanchez failed to show that his attorney's representation was deficient:

"[H]ere, there is no evidence that Sanchez made any effort to communicate with or otherwise cooperate with his attorney. There is no evidence that Sanchez consulted his attorney regarding his decision not to attend the trial, and not to be available during the weeks preceding trial. Where an attorney is confronted with such a client, whose uncooperativeness precludes any reasonable basis for an active defense, the strategy of silence - perhaps in hopes that the government will produce insufficient evidence or that the government or court will commit reversible error - may actually constitute a [reasonable] defense strategy. Certainly the right to counsel does not impose upon a defense attorney a duty unilaterally to investigate and find evidence, or to pursue a fishing expedition by cross-examination, or to present opening or closing remarks on the basis of no helpful information, or to object without purpose, on behalf of an uncooperative and unavailable client.

* * *

"Sanchez attempts to distinguish his case from cases following the Strickland two-part analysis by arguing that in effect he had no counsel at all. We find this argument unpersuasive. Certainly Sanchez may not by his absence effectively force his attorney into a strategy of silence and then complain that he was denied counsel.

* * *

"[W]here, as here, the defendant by his own obstructive conduct precludes his counsel from pursuing an intelligent active defense, the concerns of [United States v.] Cronic . . . are not invoked, and the [Strickland] test of effectiveness of counsel applies." United States v. Sanchez, 790 F.2d at 253-254 (citations omitted).

In Martin v. McCotter, the defendant, Michael Scott Martin, was tried in state court and convicted of robbery. He later sought federal habeas relief, arguing that his trial attorney's failure to offer a closing argument at the punishment stage of his trial constituted a constructive denial of counsel rendering a showing of prejudice unnecessary under Cronic. The federal district court denied relief, as did the United States Court of Appeals for the Fifth Circuit, which explained:

"We conclude . . . that counsel's decision to forego argument at the sentencing phase of Martin's trial did not constitute a constructive denial of counsel such as to render a showing of Strickland prejudice unnecessary. Counsel, although silent at the sentencing stage, did not entirely fail to subject the prosecutor's case to meaningful adversarial testing. . . . Counsel's active representation of Martin during the guilt-innocence phase was relevant to the sentencing phase; counsel's representation does not seem so deficient as to amount to no representation at all." Martin v. McCotter, 796 F.2d at 820 (citations and some internal punctuation omitted).

Finally, in Warner v. Ford, Horace Warner and two co-defendants were each charged with theft and a state firearms violation. The three were tried together in state court, each with his own attorney. Warner's attorney, Daniel Kane, was relatively inactive throughout the trial. He did not participate in jury selection, made no pretrial motions, made no opening or closing argument, cross-examined none of the prosecution's witnesses, and made no objections. However, Kane, on behalf of his client, moved for a directed verdict on the firearms count, moved for a mistrial three times, recommended that Warner not take the stand when called by a co-defendant, questioned one juror during trial, and argued to the court during sentencing. In contrast, the attorneys for Warner's two co-defendants presented defenses claiming ignorance of the circumstances of the case and blaming Warner for the crimes. All three co-defendants were found guilty on all counts. Warner later sought federal habeas relief, claiming that his trial attorney's relative inactivity constituted a constructive denial of counsel under Cronic. The federal district court denied relief, as did the United States Court of Appeals for the Eleventh Circuit, which explained:

"The district court's conclusion that Kane's silent trial tactic was reasonable under the circumstances is not clearly erroneous. . . . Kane testified [at the habeas hearing] that although he believed that Warner's case did not have a 'strong fact situation for trial,' he was prepared to go to trial if necessary. He testified that Warner's substantial prior record and the overwhelming evidence against all three defendants influenced his decision to maintain a 'low profile' before the jury. Since Kane knew codefendants' counsel to be very aggressive trial lawyers, he anticipated they would thoroughly cross-examine the Government's witnesses. He also arranged for them to 'handle the voir dire' and for additional peremptory strikes to be given to one of codefendant's [sic] counsel. Kane testified that he discussed the 'silent strategy' with Warner 'throughout the trial.'

"Russel J. Parker, the prosecutor against whom Kane tried Warner's case and 15 other criminal cases in 1979, testified favorably to Kane's competence as a defense attorney. Kane himself testified that he had used the 'silent strategy' with success in previous multiple defendant trials.

"In view of all the circumstances here, Kane's representation was not so defective as to entitle Warner to constitutional relief without a showing that his attorney's conduct prejudiced him." Warner v. Ford, 752 F.2d at 625.

As we have shown, the cases relied upon by the State are distinguishable on their facts. The State can find no logical support in them.

Our holding today is in accord with the holdings in Martin v. Rose, 744 F.2d 1245 (6th Cir. 1984); United States v. Galinato, 28 M.J. 1049 (N.M.C.M.R. 1989); and State v. Harvey, 692 S.W.2d 290 (Mo. 1985), each of which upheld a claim of ineffective assistance, under Cronic, on facts essentially identical to those before us today. Our research has found no case denying relief on such facts.

We are not persuaded by the State's argument that holding as we do today will encourage other defense counsel to engage in the conduct condemned. Under the Disciplinary Rules of Professional Conduct, every defense counsel owes to his client his zealousness, competence, and diligence. A defense counsel failing in those obligations opens himself up to disciplinary proceedings as well as a civil suit for malpractice. Furthermore, a trial court can meet the threat of attorney non-participation by ascertaining whether the defendant understands the implications and probable consequences of his counsel's conduct and whether the defendant is knowingly, intelligently, and voluntarily waiving his right to the effective assistance of counsel.

We sustain appellant's grounds for review, reverse the judgment of the court of appeals, and remand the case to the trial court for further proceedings consistent with this opinion. We also direct the Clerk of this Court to send a copy of this opinion to the Office of the Chief Disciplinary Counsel of the State Bar of Texas, so that officials therein may begin such investigation and take such action as they may deem appropriate.



1. Defense counsel's oral motion for continuance does not appear in the record, but his subsequent, written motion for continuance, which does appear in the record, was based on appellant's need for an expert to assist in the preparation of his defense. See discussion, infra.

2. The court of appeals stated that "[t]he trial judge denied the amended motion to recuse." Cannon v. State, No. 05-04-01479 (Tex.App. - Dallas 2005), slip op. at 2. However, we can find nothing in the record showing that the trial court made any ruling with respect to the amended motion to recuse.

3. On direct examination, State's witness Curtis Smith, a Wylie police officer, testified as follows:

Q: As part of your investigation, did you determine if anybody observed this accident occur?

A: Yes, I determined that there was a witness who saw it.

Q: What was his name, if you recall?

A: His name was Harold Wyan.

Q: Did you speak to Mr. Wyan?

A: I spoke to him later that night on the phone.

Q: What did he tell you?

A: He said that he was following [appellant's] van eastbound on Parker Road [in Collin County]. Wyan said he was traveling about fifty miles an hour, and the van was - the van was pulling away from him.

He estimated that the van was probably traveling fifty-five miles an hour. He observed the van drift off to the side of the road and nearly run off the road. The van then suddenly corrected.

Wyan said that he thought the driver was probably tired after he observed this. And he observed the van approach the intersection of Country Club [Road] and Parker Road and showed no indications of slowing down at the stop sign. The van continued straight through the intersection and collided with the guardrail on the east side of the road.

4. The record does not reflect the nature of the "Tindall Effect."

5. The court of appeals stated that "[t]he [trial] judge denied the [written] motion for continuance." Cannon v. State, No. 05-04-01479 (Tex.App. - Dallas 2005), slip op. at 2. However, we can find nothing in the record showing that the trial court made any ruling with respect to the written motion for continuance.

6. An ineffective-assistance claim may be brought for the first time on appeal. Robinson v. State, 16 S.W.3d 808, 810 (Tex.Crim.App. 2000).

7. We granted appellant's grounds for review numbers one and three. Ground for review number one reads: "The Court of Appeals erred in holding that Petitioner did not receive ineffective assistance of counsel because of Counsel's failure to participate at trial." Ground for review number three reads: "The Court of Appeals erred in finding that the trial record on its face does not support Petitioner's claim of ineffective assistance of counsel without the need for further factual development through the post-conviction court of habeas corpus process."

8. The State concedes that defense counsel "remained silent throughout Appellant's trial, except for a few instances," but argues that counsel's silence could have been a deliberate "strategy of gaining sympathy with the jury through the appearance of being 'railroaded' by both the trial court and the State." The State also suggests that defense counsel "could have been unable to present a defense without the testimony of the expert he requested and thus built in error to ensure reversal and a new trial."

9. In some circumstances, none of which is applicable here, a showing that the result would have been different is not sufficient to show prejudice. See Williams v. Taylor, 529 U.S. 362 (2000).

10. Professors LaFave, Israel, and King have explained:

"[T]he Strickland discussion of prejudice must be read in light of Cronic's recognition that in extreme situations, as presented in Powell v. Alabama [287 U.S. 45 (1932)], prejudice will be presumed. This 'exception' to the Strickland prejudice requirement rests on what has been described as a 'constructive denial' of counsel. Although defendant is represented by counsel, the circumstances of the representation are such that defendant, in effect, is lacking the assistance of counsel. In Powell, that constructive denial of counsel was the product of the nature of the trial court's appointment of counsel. Lower courts have concluded that a constructive denial also occurs when counsel is not present during critical stages in the criminal trial. These rulings involve situations in which counsel consistently fell asleep or simply was tardy, with the court starting the proceedings without him. Courts have extended this reasoning also to encompass a counsel who is present but does not do anything." W. LaFave, et al., Criminal Procedure § 11.10(d) at 733 (2nd ed. 1999) (footnotes omitted and emphasis added).

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Sealing Juvenile Records in Texas

Juvenile Criminal Record in Texas

Sealing of Juvenile Records-Overview

Texas Family Code Section 58.003 provides for the sealing of juvenile records. An individual with juvenile records available for sealing may file an application for sealing of records in a juvenile court of the county in which the proceeding occurred. Juvenile records ordered sealed by the court are removed from the criminal history database. Individuals attempting to seal juvenile records should seek the advice of a licensed attorney, such as David Finn, to determine if they are eligible for an order sealing records.

Texas Family code Section 58.203 restricts access to certain juvenile records. Records relating to an individual’s juvenile case that meet the criteria established by Section 58.203 are certified by the Department for automatic restriction of access.

Who has a Juvenile File and Record In Texas?
If you have been arrested, taken into custody or charged with a criminal offense (Class A or B misdemeanor or any felony) that was committed when you were at least 10 years old but younger than 17 years old, you probably have a juvenile file and record. You may also have a juvenile record if you were charged with some Class C misdemeanor offenses if the justice or municipal court transferred your case to a juvenile court.

What are Juvenile Justice Files and Records?
Under the record keeping system for juvenile records in Texas, if a juvenile was adjudicated for delinquent conduct (Class A or B misdemeanor or any felony), the juvenile probably has a juvenile record with numerous entities including local law enforcement, the Texas Department of Public Safety (DPS) and the Federal Bureau of Investigation (FBI). That record is a permanent record that is not destroyed or erased unless the record is eligible for sealing and the child or the child’s family hires a lawyer to file a petition in court to have the record sealed.

Who usually has Access to Juvenile Records?
While juvenile files and records are generally confidential, there are some important exceptions. A juvenile record can be accessed by police, sheriff’s officers, prosecutors, probation officers, correctional officers, and other criminal and juvenile justice officials in this state and elsewhere. Also, the record may be available to employers, educational institutions, licensing agencies, and other organizations when the person applies for employment or educational programs. Juvenile treatment records (counseling, placement, drug treatment, etc.) are confidential and accessible only to authorized users.

What is the Automatic Restriction of Access to Records System?
In Texas there now exists a records system that is designed to limit access to your juvenile records after you reach 21 years of age if you do not commit criminal offenses after becoming 17 years of age. The system is called Automatic Restriction of Access to Records. This is in addition to your opportunity to have your records sealed and destroyed under other provisions of the Texas Family Code.

Under automatic restriction of access to records, your records are not destroyed or sealed. They remain in place, but under restricted access. They are available only to criminal justice agencies for criminal justices purposes, such as investigating and prosecuting crimes. For all other inquiries, employment, education, etc. the holder of the records is required to reply that the records not exist and you are legally allowed to deny that you were ever arrested, prosecuted or adjudicated for a crime

How does a Juvenile’s Records become eligible for Restricted Access?
For restricted access to take place, no action is required by the child or the child’s family. You do not have to file a petition or hire a lawyer. The process occurs automatically at age 21 if, since your 17th birthday, you have not
Committed a felony or a Class A or B misdemeanor; or
Received deferred adjudication for or been convicted in adult court of a Class A or B misdemeanor or a felony.

If you meet the requirements set out above you will be given a fresh start when you reach age 21. This allows you to pursue various employment and educational opportunities without your past record in the juvenile system to harm you.
But remember, this opportunity will only happen if you do not commit any criminal offenses. If you commit a crime after turning 21, your records will be removed from restricted access.

What does it mean if records are placed on Restricted Access?
If a juvenile’s record is placed on restricted access when the respondent becomes 21 years of age, access to the record will be denied to employers, educational institutions, and other persons who may want the information. Only criminal justice agencies will have access to these records and only for a criminal justice purpose, which include investigation of crimes and for the screening persons who apply for employment in a criminal justice agency (police officers, etc.)

What records are not eligible for Restricted Access?
The only juvenile records that are not eligible for automatic restricted access are cases that were:

Handled as determinate sentence cases by the juvenile court;
Certified (transferred) to adult criminal court to be handled in the same manner as adult cases; or

Prosecuted in justice or municipal court.

What about Gang Records?
Information about gang activity is maintained by DPS in gang book records as authorized by law. These records are exempt from the new system because the access to these records is already limited to criminal justice agencies for a criminal justice purpose.

What about Sex Offender Records?
Sex offender registration records are exempted from the Restricted Access system because the purpose of registration is to notify the public. If you are a registered juvenile sex offender, you may have a right to have your records sealed once your obligation to register expires. Also, there are other legal proceedings that may allow reconsideration of your obligation to register. Talk to your probation or parole officer about these, or speak to a private attorney.

How does the Restricted Access records system benefit my child?
If a juvenile’s records are placed on restricted access, the juvenile may:
Deny the existence of the juvenile record; and
Deny the arrest, prosecution or adjudication ever happened.
For example, once your juvenile records are on restricted access, you may legally answer in the negative when a job application, educational or occupational licensing application asks, you ever been arrested, convicted or adjudicated of a crime?

It is important to understand that if you commit a crime after turning age 17 and you are convicted of or placed on deferred adjudication for the offense in adult criminal court, your records are not eligible for Restricted Access. You do not have the right to deny the existence of your juvenile record. If you deny in this situation, you could be prosecuted for perjury (failing to tell the truth).

If you commit a crime after turning 21, your records will be removed from restricted access. You would then also lose your right to deny the existence of your juvenile record.

What should I do to make sure my records are placed on Restricted Access?

To be sure your records are eligible for and placed on restricted access you must:
Successfully complete your period of probation or parole with no violations; and
Commit no criminal offense after becoming 17 years of age
The Restricted Access system truly gives juveniles the opportunity for rehabilitation and a fresh start if they do not commit any further criminal offenses.

When did this new system take effect?
The new law went into effect September 1, 2001. It applies to all juvenile records created before, on or after September 1, 2001.

Should I still try to get my records sealed or destroyed?
The sealing and destruction of juvenile records procedures do offer some additional benefits to a juvenile and may be the preferred course of action. To have your record sealed, you must initiate a formal court proceeding and may need an attorney. Also, if you have criminal records in a justice or municipal court, special expungement procedures apply. If you have questions about any of these procedures, discuss them with your attorney or your probation or parole officer.

Texas Family Code Sec. 58.003. SEALING OF RECORDS.
(a) Except as provided by Subsections (b) and (c), on the application of a person who has been found to have engaged in delinquent conduct or conduct indicating a need for supervision, or a person taken into custody to determine whether the person engaged in delinquent conduct or conduct indicating a need for supervision, on the juvenile court's own motion the court shall order the sealing of the records in the case if the court finds that:
(1) two years have elapsed since final discharge of the person or since the last official action in the person's case if there was no adjudication; and

(2) since the time specified in Subdivision (1), the person has not been convicted of a felony or a misdemeanor involving moral turpitude or found to have engaged in delinquent conduct or conduct indicating a need for supervision and no proceeding is pending seeking conviction or adjudication.

(b) A court may not order the sealing of the records of a person who has received a determinate sentence for engaging in delinquent conduct that violated a penal law listed in Section 53.045 or engaging in habitual felony conduct as described by Section 51.031.

(c) Subject to Subsection (b), a court may order the sealing of records concerning a person adjudicated as having engaged in delinquent conduct that violated a penal law of the grade of felony only if:
(1) the person is 21 years of age or older;

(2) the person was not transferred by a juvenile court under Section 54.02 to a criminal court for prosecution;

(3) the records have not been used as evidence in the punishment phase of a criminal proceeding under Section 3(a), Article 37.07, Code of Criminal Procedure; and
(4) the person has not been convicted of a penal law of the grade of felony after becoming age 17.

(d) The court may grant the relief authorized in Subsection (a) at any time after final discharge of the person or after the last official action in the case if there was no adjudication. If the child is referred to the juvenile court for conduct constituting any offense and at the adjudication hearing the child is found to be not guilty of each offense alleged, the court shall immediately order the sealing of all files and records relating to the case.
(e) Reasonable notice of the hearing shall be given to:
(1) the person who made the application or who is the subject of the records named in the motion;
(2) the prosecuting attorney for the juvenile court;
(3) the authority granting the discharge if the final discharge was from an institution or from parole;

(4) the public or private agency or institution having custody of records named in the application or motion; and

(5) the law enforcement agency having custody of files or records named in the application or motion.

(f) A copy of the sealing order shall be sent to each agency or official named in the order.

(g) On entry of the order:

(1) all law enforcement, prosecuting attorney, clerk of court, and juvenile court records ordered sealed shall be sent before the 61st day after the date the order is received to the court issuing the order;
(2) all records of a public or private agency or institution ordered sealed shall be sent before the 61st day after the date the order is received to the court issuing the order;
(3) all index references to the records ordered sealed shall be deleted before the 61st day after the date the order is received, and verification of the deletion shall be sent before the 61st day after the date of the deletion to the court issuing the order;
(4) the juvenile court, clerk of court, prosecuting attorney, public or private agency or institution, and law enforcement officers and agencies shall properly reply that no record exists with respect to the person on inquiry in any matter; and
(5) the adjudication shall be vacated and the proceeding dismissed and treated for all purposes other than a subsequent capital prosecution, including the purpose of showing a prior finding of delinquent conduct, as if it had never occurred.

(g-1) Any records collected or maintained by the Texas Juvenile Probation Commission, including statistical data submitted under Section 141.044, Human Resources Code, are not subject to a sealing order issued under this section.

(h) Inspection of the sealed records may be permitted by an order of the juvenile court on the petition of the person who is the subject of the records and only by those persons named in the order.

(i) On the final discharge of a child or on the last official action in the case if there is no adjudication, the child shall be given a written explanation of the child's rights under this section and a copy of the provisions of this section.

(j) A person whose records have been sealed under this section is not required in any proceeding or in any application for employment, information, or licensing to state that the person has been the subject of a proceeding under this title and any statement that the person has never been found to be a delinquent child shall never be held against the person in any criminal or civil proceeding.

(k) A prosecuting attorney may, on application to the juvenile court, reopen at any time the files and records of a person adjudicated as having engaged in delinquent conduct that violated a penal law of the grade of felony sealed by the court under this section for the purposes of Sections 12.42(a)-(c) and (e), Penal Code.

(l) On the motion of a person in whose name records are kept or on the court's own motion, the court may order the destruction of records that have been sealed under this section if:
(1) the records relate to conduct that did not violate a penal law of the grade of felony or a misdemeanor punishable by confinement in jail;

(2) five years have elapsed since the person's 16th birthday; and

(3) the person has not been convicted of a felony.

(m) On request of the Department of Public Safety, a juvenile court shall reopen and allow the department to inspect the files and records of the juvenile court relating to an applicant for a license to carry a concealed handgun under Subchapter H, Chapter 411, Government Code.

(n) A record created or maintained under Chapter 62, Code of Criminal Procedure, may not be sealed under this section if the person who is the subject of the record has a continuing obligation to register under that chapter.

(o) An agency or official named in the order that cannot seal the records because the information required in the order under Subsection (p) is incorrect or insufficient shall notify the court issuing the order before the 61st day after the date the agency or official receives the order. The court shall notify the person who made the application or who is the subject of the records named in the motion, or the attorney for that person, before the 61st day after the date the court receives the notice that the agency or official cannot seal the records because there is incorrect or insufficient information in the order.

(p) A person who is eligible to seal records may file an application for the sealing of records in a juvenile court of the county in which the proceedings occurred. The application and sealing order entered on the application must include the following information or an explanation for why one or more of the following is not included:
(1) the applicant's:
(A) full name;
(B) sex;
(C) race or ethnicity;
(D) date of birth;
(E) driver's license or identification card number; and
(F) social security number;
(2) the offense charged against the applicant or for which the applicant was referred to the juvenile justice system;

(3) the date on which and the county where the offense was alleged to have been committed; and

(4) if a petition was filed in the juvenile court, the cause number assigned to the petition and the court and county in which the petition was filed.

Added by Acts 1995, 74th Leg., ch. 262, Sec. 53, eff. Jan. 1, 1996. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 10.05(a), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1086, Sec. 18, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 19.01(20), eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 147, Sec. 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 283, Sec. 26, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 949, Sec. 16, eff. Sept. 1, 2005.

For more information on this subject, please contact Dallas criminal defense lawyer David Finn, at (214) 651.1121, or email Mr. Finn at:
David Finn

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