Articles Posted in Trial Strategy

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recuseImmediately after filing Brady Material – Favorable Evidence to the Defense, the Collin County District Attorney’s office joined in the Defense’s prior motion to recuse the District Attorney.

In the filing today, Gregory Davis, the First Assistant District Attorney explains that "[a]s a result of newly discovered evidence set forth in the State’s Disclosure of Evidence Favorable to Defendant, the State of Texas now agrees that the Criminal District Attorney of Collin County and the Collin County’s District Attorney’s Office is disqualified in this case."

Both of these filings follow my past article, "How To Gut Your Own Case: Collin County District Clerks Case." which outlined the similarities in the District Attorney’s High-Five paid time off program, and the District Clerk’s "Blue Book" time.

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bradyfiling-1Today, Gregory Davis, Collin County’s First Assistant District Attorney filed a "State’s Disclosure of Evidence Favorable to the Defendant."  This is commonly known as a "Brady Material." Brady material, in short, refers evidence favorable to the defense that is known by the State. The State is required to turn this evidence over.  Brady material is often the source of heated debates including what is, and is not, Brady material.  Brady material requirements stem from the US Supreme Court case of Brady  v. Maryland. 

Today’s filing goes on to detail some specifics regarding the State’s High-Five program.  I previously reported on this program and detailed the shocking similarities to behavior alleged in the District Clerk’s case. This stemmed from the District Attorney requesting a new way to code this time off which was denied by the County Commissioners.

The filing states:

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The Short Answer? Admit to doing the exact same thing the people charged did. commVideo

I have never had a case where a prosecutor has stood in front of a large group and admitted to driving while intoxicated — or any other crime for that matter. 

But that seems to be exactly what the elected District Attorney in Collin County recently did. No, he did not admit driving while intoxicated, but instead stood in front of the county commissioners and asked for assistance on properly "coding" his Hi-Five Paid Time Off program.  A program that on its face seems to be doing the same thing he accuses Six Collin County District Clerks of doing. Taking time off from work with the permission of their supervisors, but putting in with the county that they were actually present so they can be paid.

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Transcript1smallerYesterday, our firm found ourselves in an odd position.  A case of ours was set for trial, and we were ready to go. (That’s not the odd part).  The odd part is that although we were willing to waive the jury and allow the judge to make the determination of guilt, the state wouldn’t allow it.

In general, the only reason the state would oppose this is because  they think they would have a better chance of a guilty verdict with a jury rather than the judge.  Conversely, a defense attorney would do this if they think they have a better (or equal) chance with the judge.  In this case, we knew the facts of the case, and were very confident of a not guilty no matter who was looking at it.

So we attempted to save our citizens some time, and let the judge decide.  But as has recently been pointed out by the front page article in the Dallas Morning News (just one day earlier), the State has a right to a jury trial.

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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.  MIL

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.

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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

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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. 

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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."

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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. 

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