Frisco DWI Lawyer & Attorney Blog : Collin County DWI Lawyer & Attorney : Hunter Biederman : Texas DWI Defense : Serving Collin County, Denton County, Dallas County

Recently, we had a trial set in which the prosecutors filed some pretrial motions.  While not uncommon for the prosecutors to file such motions, one of the items they requested I found quite interesting. 

The prosecutors filed a "Motion in Limine." A Motion in Limine is the attorney asking the judge to make the opposing attorney ask permission in advance of doing something.  Some common requests are for an attorney to request the opposing attorney to ask permission during trial in advance of offering expert testimony, or something else they think might be inadmissible and don't want the jury to hear.

Well, the State's Motion in Liminie starts out pretty normal, but they then add in the "Biederman & Burleson" Clause.  Both my partner Troy Burleson and myself are both certified to administer Standardized Field Sobriety Tests. This is the same certification the police officer's have.  I am an instruction in Standardized Field Sobriety Testing (I can teach the course that certifies the students). I guess they State doesn't like the jury know we have more specialized knowledge than most of the officers.

#8 of their motion reads that we cannot make:

"Any mention, during voir dire and the guilt/innocence phase  of the trial, of defense counsel's personal experience regarding training, administration and/or certification in standardized field sobriety testing."

As you can see on their motion, #8 is lower than the others numbers, because it was added on a form motion. 

So from now on, I hope future law books refer to this motion as the "Biederman & Burleson Motion in Limine."  I know we at the office do.

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A couple of weeks ago, I happened to be present in the 429th District Court and saw an individual, Mr. Robert Blackburn trying to plea guilty, but was barred in doing so by the Assistant District Attorney.  I didn't think too much of it at the time, because I have seen the DA do this many times -- including to my clients.

What happened differently on this occasion, is that the (visiting) Judge John McCraw stood up to this ridiculous practice. I was pleased to read a great article by the Collin County Observer reporting the incident and subsequent appeal by the DA.

The Law

First, lets go through how a criminal case is disposed.

A person accused of a crime may either plea guilty or plea not guilty regarding criminal charges against them.

Plea Not Guilty

Texas has a bifurcated trial system, meaning "two parts."  The first phase is to determine whether or not a person is guilty, the second phase is to determine punishment (if found guilty).  Obviously if found not guilty, there is no punishment phase.  As far as the second phase goes, one must choose before the trial begins as to whether or not to have the judge or jury handle sentencing if found guilty.

1. Plea Not Guilty, Judge Punishment:  A citizen requests a jury to determine if they are guilty or not guilty, and if  found guilty, elect the judge to impose punishment.  This is the most common, as most attorneys know that judges get to see lots of cases and can understand the seriousness/non-seriousness of the particular crime.  Additionally, it is easier for an attorney to advise a client on the likely punishment if you know who will be doing the sentencing opposed to jurors you have never met.

2. Plea Not Guilty, Jury Punishment: A citizen requests a jury to determine if they are guilty or not guilty, and if found guilty, elect the jury to impose punishment.  If in front of a tough, unreasonable, or unknown judge, one might elect a jury of their peers to decide their fate. 

Plea Guilty

1. Negotiated Plea:  This is the most common plea.  The DA and the citizen (often with the help of their attorney), negotiate a punishment, and they plea and receive punishment.

2. Non-Negotiated "Slow" Plea: If a citizen accused wants to plea, but cannot agree with the DA on punishment, they can enter a "slow plea."  This means the accused will plea guilty, but allow the jury to assess the punishment.

2. Non-Negotiated "Open" Plea: If a citizen accused wants to plea, but cannot agree with the DA on punishment, they can enter an "open plea."  This means the accused will plea guilty, but allow the judge to asses the punishment.

The Case

In this case, the defendant, Robert Lee Blackburn was charged with 4 felonies after he bit a Plano Police officer while being arrested for possession of cocaine. It seemed that everyone agreed as to his guilt, but there was no agreement on what the punishment would be.

Mr. Blackburn and his attorney agreed he should plea guilty, and wanted the presiding Judge (in this case, Judge Jill Willis) to assess punishment.  Mr. Blackburn wanted to plea guilty in an "open plea," but the District Attorney refused to allow him to do so.  They did this by invoking the State's right to a Jury Trial. 

In Texas, the State has a right to a jury trial.  It's a bit silly in my opinion, but too complicated to debate in this article the legality of the whole issue.  I'll save that for another article.

By invoking the right to a jury trial, it means that a defendant CANNOT enter an "open plea."  This means that if Mr. Blackburn wants a judge to assess his punishment, he must plea not guilty, go through the farce of a jury trial, and elect the judge to impose the sentence. 

That is exactly what the Assistant District Attorney, Gary Knapp forced upon Mr. Blackburn's.  I do not know if this was his personal decision, or if someone higher up in the office instructed him to do this. (The Observer reported and provided a transcript showing Appellate Chief John Rolater who was arguing the case -- which is accurate at the second hearing.  Originally it was Knapp barring the plea of guilty, and calling  the Appellate department for assistance).  In this case, the Judge did not allow the State to invoke their right to a jury trial, and ordered the plea be accepted.  The State has since appealed, and the case is in limbo until the appellate court reaches a decision.

Why would the DA force a "sham" trial on a defendant when everyone agrees on their guilt?

There can be several possible reasons, none of which seem justified to me:

1. Forum Shopping - Forum shopping is an attorney (on either side of the case) attempting to pick what judge is going to hear a case.  Defendant's cases are randomly assigned to courts, so one cannot pick a judge.  However, visiting judges are often called in when judges are out of town, or want to run a "double-docket," to help clear out some cases. 

I am almost positive I heard the DA that if Mr. Blackburn wanted to plea to a visiting judge, they would allow it, but not to the presiding judge.  I cannot remember for sure, and am not willing to make this claim positively.  I wish that a transcript available of the hearing that took place before the appellate department got involved.  That is where the true hearing took place.  I personally believe forum shopping was part of the reason why the DA did not allow the plea.

2. Padding Statistics - This is political gamesmanship. If a DA wants to boast about their conviction rate, they can pad the stats.  I have seen Collin County DA literature boasting about conviction rates in the past. Additionally, if a prosecutor wants to look good to their superiors, they will try to win as many cases as possible.

The DA can offer really tough plea bargains to a defendant.  This will bar someone from pleading guilty in a negotiated plea.  In a court where the defendant chooses to allow the judge to accept punishment, this will force a trial if the state invokes their right to a jury trial.  The DA will have a slam dunk case of guilt, and get to put it down as a win.

They will additionally get to put it up on the "Board" which is at the DA's office.  The "Board" is where attorneys write down their trials they are having that week, along with the results.  It was there when I was an assistant district attorney, and assume it is still there.

3. Practice for young prosecutors:  I guess if someone wants some experience in a trial, they could force a sham trial just to get some experience.  This is not what happened in this case, because these are felony prosecutors with plenty of trials under their belts already. 

4. Manipulating the Punishment Range: The entire range of punishment is available to either a judge or a jury.  With one exception: Deferred Adjudication.  A citizen accused can only get deferred adjudication from a judge after a guilty plea (negotiated, or not negotiated).  By barring a person from pleading guilty, the DA is barring the possibility of them getting Deferred Adjudication.  Basically usurping the elected Judge's powers.  The DA in this case says this is the reason for their behavior, however I have personally seen them do this in cases where the client is not even deferred eligible.  I don't see why the DA would stop an elected presiding Judge (or in this case, a judge appointed by Governor Rick Perry) from doing the job they were put there to do.

My hope is that with this article, one of the new candidates for District Attorney will stop this archaic practice of barring a person from pleading guilty to an elected Judge thus forcing a sham trial.  In the end, it is about the difference of what should be done, versus what can be done.  After about seven years of the same elected District Attorney, I think a new DA will be the only factor that change this practice.

DOCUMENTS

 

Petition for Writ of Mandamus, In re John Roach, Fifth COA case number 05-09-01451-cv

Reporters Record, December 3, 2009 Texas vs Robert Lee Blackburn

Order granting Emergency Motion for Temporary Relief, In re John Roach, Court of Appeals, Fifth District.

Link to Court of Appeals case 05-09-014510-CV, In re John Roach

Link to Collin County cases 199-80283-08, 199-80284-08, 199-80285-08, 199-80286-08, State vs. Robert Lee Blackburn

Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at friscolaw@gmail.com or (888) DWI-FRISCO

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I recently posted here of why a DWI "win" is all relative.   Especially in light of a  tough plea bargain offer that is not much of a "bargain" at all. 

Shawn Matlock of The Matlock Blog (no, not Andy Griffith with a blue suit), gave another great example of a relative win.  In the past, he spoke about relative wins here.  His more recent post, Life in a Box, explains how he was lucky enough to see some great lawyers, Mark Daniel and Tim Moore, fighting a death penalty case.  In the end, the client was given a life in prison sentence instead of the death penalty.  And while life in prison might not seem like a win to most --- when looking at the alternative, it can certainly look O.K.  Especially when the reason you are on trial is for killing a police officer.  No one is saying it is O.K. to kill anyone, especially not a police officer.  But apparently 12 people felt that life in prison was a just punishment.

In the end, it is always important to ask your clients what their goal is.  For some, it is being found not guilty.  For others, it is to receive a fair punishment for the crime.  Either way, we as lawyers must do our best to achieve fair and just results for our clients.

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Many of my clients come into my office knowing that they want to fight their DWI case.  I'm OK with that.   In fact, as I have stated in past blogs, in general, there is very little to lose by going to trial on a DWI 1st case.

Despite knowing we are going to trial, the plea bargaining process is still an important one. . . even in counties, such as Collin County or Dallas County, where pleaing to a non-DWI offense will almost never happen.

Here is why it is important to get the best offer you can from the state, even if you never plan on pleaing to it.  If you go to trial, and are not successful, often the first thing done by the prosecutor is to look at the last recommendation given to the attorney in the case.  The point being, usually they will be seeking a tougher punishment after trial. 

Often times, you can come to an agreement with the prosecutor on the case... maybe a slightly larger fine, or a few months extra probation if your client is found guilty after trial.  If you did not actively pursue a good plea bargain pre-trial, your negotiating position after trial will diminished.

It is for this reason (and also so the client can weigh all options before deciding whether or not a trial is in their best interest), that I always actively pursue the best plea bargain possible pre-trial, even if the client has their heart set on a trial.

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In a recent blog post by blogger Robert Guest, he posts about some of the techniques taught to prosecutors when cross examining a defendant in a DWI case.  These are the same techniques taught to me while working as a prosecutor.  He reports from old manuals that he has:

Today's subchapter is called "Crossing the Defendant", it should have been called "guilty until proven innocent." Prosecutors are taught to spin or ignore evidence of innocence.

- ADA's are taught to work out a "time line" of that day's events with the defendant. Why? Because there is "no credible way the defendant could have kept track of that, so you will either succeed in showing their no memory of times, or he has an overdeveloped memory."

- What should a prosecutor do if the defendant does not look intoxicated on the video? Drop the charge? Of course not. Argue that the defendant only looks good because of the adrenaline brought on by arrest.

- If the defendant claims the officer was abusive ask the defendant why he/she did not file a complaint with the police department.

- Ask the defendant how often he usually drinks. For regular drinkers argue that the defendant has a high tolerance and would not know if he is drunk. If he is not a regular drinker then argue he would not know his own limits.

There are others too, of course.  Other "damned if you do, damned if you dont" ways to further humiliate someone testifying in their own behalf.  Sometimes they will try and trip up a defendant on whether or not they felt they were intoxicated, and what that definition is... If they report the "falling over drunk" type definition, then during arguments, the State can argue that "we agree.. he wasnt intoxicated according to his definition.. but he was intoxicated according to the legal definition."

And how often have we heard it argued "witness credibility" of our clients??  Because he testifies, he AUTOMATICALLY must be lying, because he has something to gain?  Of course he does.. everyone on trial does.  Does that mean a citizen accused, who was sworn to tell the truth always lies?

These are just some of the arguments that an attorney and a client must be prepared to face when deciding whether or not to testify.

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I last posted regarding CMI's refusal to reveal their source code here.  Apparently, court orders do not seem to phase this "government contracting" juggernaut.  CNET now reports that CMI has missed their deadline for turning over the source code. According to CNET:

The next step is a court hearing scheduled for September 19, Underdahl's attorney, Jeffrey Sheridan, told CNET News.com in a phone interview on Tuesday. At the hearing, Sheridan is expected to ask the judge to throw out any evidence the state had obtained using the the Intoxilyzer 5000EN. If the judge agrees, at least one charge--that his client was driving with a blood alcohol concentration above the legal limit of .08--would likely be dismissed.

Sheridan had predicted in an interview with CNET News.com last month that the Minnesota state public safety commissioner would not supply him with the source code to the device, as ordered by the Minnesota Supreme Court, by the August 17 deadline.

I understand their arguments, "proprietary information, and all" but I don't buy it.   This is a device that is used to convict people.  Take away their freedom.  Restrict future jobs and earnings.  Gets people fired from existing jobs.  Takes away MILLIONS of dollars from people through fines, court costs, and attorney's fees. 

In a recent post by fellow DUI/DWI blogger Lawrence Taylor, he reports that another Breathalyzer, the Draeger AlcoTest 7110, was forced to turn over their soucecode.  In his blog, he reports several problems with the code, including:

1. The Alcotest Software Would Not Pass U.S. Industry Standards for Software Development and Testing
2. Catastrophic Error Detection Is Disabled
3. Error Detection Logic problems.

Quite honestly, I don't fault CMI for the way they were acting.  If most people/corporations could get away with this type of behavior, they would.  Why do you think Enron or other large corporations didn't want to turn over their books???  What is most disappointing to me is that State agencies continue to contract with this company. That is where I place the fault in this "secret convicting machine" fiasco.

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