D. Scott Elliff ~it looks as if you fell off the planet, played a video in both English and Spanish, explaining the process and/or methodology for ...

the actions and demeanor of prosecuting attorney Melissa Daylong.

All students prosecuted in JP Courts and/or punished on the Federally Funded CCISD taxpayers tab should be punished by only one not both.

A child suspended and subsequently charged in court is double jeopardy and violates federal law.


Thank you,

CCISD TAXPAYER ASSOCIATION

RE: [republic of texas] New comment on DEAR PUBLIC POLICY MAKERS, JP COURTS HAVE GROWN WA....‏

Dear Sandra,

The "legally trained" prosecutor is obligated to provide you all material and information , including evidence , in advance of trial pursuant to to Fed. R. Crim. P. 16 and the case law, including Brady v Maryland, 373 U.S. 83 (1963) and Giglio V United States, 405 U.S. 150(1972).

If their was a need for a psyche eval. the statement "kids like you wind up in jail" is biased,discrimination and stereotyping by a an officer of the court that is legally trained and not qualified to predict what a student will or will not do.

I am sorry to say this is common practice in the JP courts of Texas.

But i do know that if there is a chance your child will be incarcerated the sixth amendment to the U.S. Constitution requires an attorney be appointed to represent the defendant.

The practice of Texas public Schools pushing students into the "school to prison pipeline" is disgusting and failing to educate them is the goal.

If you are not legally trained, I suggest you do so quickly.

The google and internet have a wealth of info on this subject.

Good luck and may you always educate yourself and yours because you lose your rights if you do not assert them.

Speak up, talk to other parent in your situation, I promise you will not have to look far.

LeeAnn Haley
Kenedeno & Associates

P.S. Look at ~gritsforbreakfast.blogspot.com

The people of texas are out there that have gone through this same crap.



Date: Wed, 2 Apr 2008 15:11:59 -0700
From: sandratribble@gmail.com
To: kenedeno@gmail.com
Subject: [republic of texas] New comment on DEAR PUBLIC POLICY MAKERS, JP COURTS HAVE GROWN WA....

sandra has left a new comment on your post "DEAR PUBLIC POLICY MAKERS, JP COURTS HAVE GROWN WA...":

The methodology for the “Diversion Agreement” as it affected my son and I in the charges of failure to attend school, In the justice Court, Precinct 8, position2 Cause No. CR82C0144252 After becoming aware of my son’s truant behavior, and determining the cause, and trying continually to remedy the situation in conjunction with my son’s principal, we finally had our initial day in court. Upon entering the courtroom, we were told to complete a form and produce identification. Then the court played a video in both English and Spanish, explaining the process minimally. My son and are were the 1st defendants called. We approached the table that had called us, and sat down. There were four individuals at the table, none of which identified or introduced themselves to my son or myself. I understand my son and I were the defendants in the action, but as it was a pretrial. Cara Hernandez, I assume as the diversion agreement was stamped with her name, immediately started questioning my son in a tone similar to the actions and demeanor of prosecuting attorney Kelly Siegler, but again without the introduction. My son answered her questions, but when Mrs. Hernandez summed up her interpretation of what my son had said, she repeatedly said my son was blaming his truant behavior on everyone else. Upon direct questioning as to why he had been repeatedly absent, my son said he had an issue with a teacher, even brought up a verbal attack from the teacher directed at my son and other students. Mrs. Hernandez in her questioning of my son stated, it looks as if you fell off the planet, but it seems your back. Mrs Hernandez also stated that she hated to put children like my son in jail as he had no prior history, but kids like him almost always end up in jail, where as students that are always in court are smart enough to do just enough to stay out of jail. A man at the table handed me a piece of paper and requested I get Mike in counseling, I responded that Mike is already being seen by a counselor. He then asks if Mike had ever had a psychological assessment. I answered, “Not that I’m aware of.” He explained his name and number was written on the paper, and requested that I have a psychological assessment of my son done at Depelchin Children’s center. I contacted Depechin, to schedule a psychological assessment, explaining it had been court ordered thru a diversion agreement at my son’s court hearing in regards to truancy. The representative over the phone, seemed a little perplexed, she questioned, what sort of psychological assessment do you need? The paper I had been given was dated 9/7/06 from a web page that is no longer available, http://www.depelchin.org/display.php/tid/11.html. In spite of the message I left for Raul Gaona, yesterday after my conversation with the Depelchin representative, I have not received a return call. The Depelchin representative did volunteer that the Doctors used by Depelchin for psychological assessments were not accredited with any insurance. I contacted my sons’ therapist that works in conjunction with a licensed Psychiatrist, I explained what the court had ordered, a psychological assessment. The therapist asked what kind, rudimentary psychological assessment, personality psychological assessment, projection psychological assessment, or intelligence psychological assessment? After I explained it only said psychological assessment, my sons therapist explained, it would not be covered by insurance unless it was medically necessary. He also concluded if it became medically necessary in the course of therapy, it would be a covered testing. In the signed diversion agreement, we agreed to continue therapy, so I don’t understand the necessity of having a psychological assessment that has yet to be deemed a medical necessity. Obviously in following the court order of continued therapy, one would follow the recommendations of a mental health authority. My question to Raul Gaona would be in you minimal participation in the diversion agreement yesterday, do you think your question as to weather or not I had insurance indicated to me, along with the paper with hand written…No Contract No Evolv- Insurance, Medicaid, chips…that the psychological assessment would be covered to the extent my insurance allowed ? I am appalled by the actions and manipulation of words used by Cara Hernandez, and intentional mis-information indicated by Mr. Gaona. In the prosecutions discussion of perhaps getting a mentor, to mentor my child in how to cross the intersection of Bay Area Blvd(4 lanes of traffic), and Fm 528(5lanes), 15 minutes before sunrise, to get too tutorials(with an abusive teacher)on time, the prosecutor and all participants at the table should be mentored on the common courtesy of introducing oneself before questioning them or listening to their questioning.
To the assumed School district representative, had you recently been in contact with the principal at my son’s school perhaps you would have been aware of the mitigating circumstances regarding my son’s absences. The prosecutor implied my son had made up the conflict between the teacher and my son, as a representative of the school district, I would expect at least some acknowledgement of the said issue. The principal at my son’s school has obviously concluded, there was a real or perceived issue between my son and the teacher, as her actions allowing my child to remain in the student center during that teacher’s period, and has finally allowed my son to transfer out of that teacher’s class. Also, I do not understand which absences were used to charge my son with failure to attend school, as none accompanied the complaint. Under Section 25.0951 of the Texas Education Code If the school district chooses to file the charge of “failure to attend school” against the student, it must do so within ten (10) school days of the student’s 10th absence. The court must dismiss charges that are not filed within 10 school days of the student’s 10th absence.



Posted by sandra to republic of texas at 3:11 PM

the State knowingly used perjured testimony and that it failed to disclose evidence showing t

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Revised - February 3, 2003

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SUPPRESSION OF EXCULPATORY

EVIDENCE IN CRIMINAL CASES






Presented at:

The Criminal Defense Lawyers Project’s

EVIDENCE FOR THE 21ST CENTURY

SEMINAR




Presented by:

Gary A. Udashen

Sorrels & Udashen

2301 Cedar Springs Road

Suite 400

Dallas, Texas 75201

214-468-8100

214-468-8104 fax






SUPPRESSION OF EXCULPATORY

EVIDENCE IN CRIMINAL CASES

By: Gary A. Udashen*


The failure of prosecutors to reveal exculpatory evidence to defendants and their attorneys has resulted in many unjust convictions. A small number of these cases are eventually reversed on appeal but such an outcome is dependent on the defense discovering the existence of the suppressed evidence and the willingness of courts to reverse convictions and reopen trials. Knowledge of and sensitivity to this issue by judges, prosecutors and defense lawyers is essential to the fair and just operation of our criminal justice system.

Review of Law

The seminal case concerning exculpatory evidence is Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady was charged with murder and tried separately from his codefendant. At Brady’s trial, he admitted participation in the crime but contended that his codefendant had done the actual killing. Prior to trial, Brady’s counsel requested access to the statements made by the codefendant. He was shown some statements but the prosecution withheld a statement where the codefendant admitted the killing. After Brady’s direct appeal, he gained access to this exculpatory statement and brought a post conviction challenge to his conviction alleging a violation of due process based on the prosecutor withholding this favorable evidence. In Brady, the Supreme Court stated the following:

“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court further explored the question of suppression of exculpatory evidence and stated that “when the prosecutor receives a specific and relevant request (for exculpatory evidence) the failure to make any response is seldom, if ever, excusable.” The Agurs court also noted that, “if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request is made.” Specifically, the Court in Agurs distinguished three situations in which a Brady claim might arise: first, where previously undisclosed evidence revealed that the prosecution introduced trial testimony that it knew or should have known was perjured, 427 U.S. at 103-104, 96 S.Ct. at 2397-2398. In this situation, the Court said that “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.”1 Agurs, 427 U.S. at 103 (see also, United States v. San Filippo, 564 F.2d 176, 178 (5th Cir. 1977) (“due process is violated when the prosecutor although not soliciting false evidence from a government witness, allows it to stand uncorrected when it appears”); second, where the Government failed to accede to a defense request for disclosure of some specific kind of exculpatory evidence, id. at 104-107, 96 S.Ct. at 2398-2399; and third, where the Government failed to volunteer exculpatory evidence never requested, or requested only in a general way. The Court found a duty on the part of the Government even in this last situation, though only when suppression of the evidence would be “of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Id. at 108, 96 S.Ct. at 2400.

United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), clarified the standard of review when exculpatory evidence is suppressed. First, the Bagley court rejected a distinction between cases when there was a specific request for exculpatory evidence and no request. Bagley set out a three part test for obtaining relief based on suppression of exculpatory evidence. (1) The prosecution withheld or suppressed evidence. (2) The evidence was favorable to the defense. (3) The evidence was material to either guilt or punishment. See also, Ex parte Kimes, 872 S.W.2d 700, 702-03 (Tex. Crim. App. 1993). Under Bagley the materiality test is met and a new trial required if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. This reasonable probability is defined as “a probability sufficient to undermine confidence in the outcome”. 473 U.S. at 682, 105 S.Ct. at 3383; see also, Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) (Texas has adopted the Bagley test for materiality determinations when exculpatory evidence is suppressed). The Bagley court also held that the prosecution has a duty to disclose evidence that could be used to impeach the prosecution’s witnesses. In Bagley, the prosecution had not disclosed incentives which had been offered witnesses contingent on the government’s satisfaction with their testimony.

In Bagley, the Court expressed concern with “any adverse effect that the prosecutor’s failure to respond (with exculpatory evidence) might have had on the preparation of the defendant’s case.” 473 U.S. at 683, 105 S.Ct. at 3384. See also, Derden v. McNeel, 938 F.2d 605, 617 (5th Cir. 1991) (a reviewing court may consider any adverse effects the prosecutor’s failure to release information might have had on the defendant’s preparation and presentation of the case).

In Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the Court discussed the showing necessary to obtain a new trial when the prosecution withholds exculpatory evidence. Under Kyles, this showing does not require a demonstration that the disclosure of this evidence would have resulted in an acquittal. Rather, as the Court stated, the question is “not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence, he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” 514 U.S. at 434, 115 S.Ct. at 1566. The Kyles court restated the materiality test as a determination as to whether there is a “reasonable probability” that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” The Court emphasized that this was not a sufficiency of the evidence test and did not require a showing that disclosure of the suppressed evidence would have resulted in the defendant’s acquittal.

The Court in Kyles found reversible error in the prosecutions suppression of the following evidence in a Louisiana murder case: 1) contemporaneous eyewitness statement taken by the police following the murder that were favorable to Kyles; 2) various inconsistent statements by a police informant who had implicated Kyles and 3) a computer printout of license numbers of car parked at the crime scene on the night of the murder, which did not list Kyles’ car.

Knowledge of government agents, such as police officers, of exculpatory evidence is imputed to the prosecution. Williams v. Whitley, 940 F.2d 132 (5th Cir. 1991); U. S. v. Auten, 632 F.2d 478 (5th Cir. 1980). Therefore, if a police officer has exculpatory evidence, this is the same as a prosecutor having it, and it must be turned over to the defense. See Kyles, 115 S.Ct. at 1566, (“the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”); United States v. Brooks, 966 F.2d 1500 (D.C. Cir. 1992) (discussing duty of prosecutor to search files of other agencies); O’Rarden v. State, 777 S.W.2d 455 (Tex. App. - Dallas 1989, pet. ref’d) (prosecution team includes investigators); Carey v. Duckworth, 738 F.2d 875 (7th Cir. 1984) (prosecution cannot evade Brady requirements by keeping itself ignorant of information). See also, Jones v. Chicago, 856 F.2d 985 (7th Cir. 1988) (criticizing police for withholding information from prosecutor in order to circumvent Brady rule). In United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), the court held that when the government is confronted with a request by a defendant for the personnel files of testifying officers the government has a duty to examine those files and must disclose information favorable to the defense that meets the materiality standard. The court held that if the government is uncertain about its materiality the evidence should be submitted to the court.

Additionally, the duty to disclose exculpatory evidence is ongoing and the State must disclose it whenever it is discovered. Flores v. State, 940 S.W.2d 189, 191 (Tex. App. - San Antonio, 1996, no pet.).

In Strickler v. Greene, 527 U.S. 263 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court reiterated the standard of review for determining Brady claims. However, Strickler demonstrated the heavy burden the Courts place on defendants to demonstrate prejudice when the prosecution withholds exculpatory evidence. In Strickler, the court found that the prosecution withheld exculpatory evidence but concluded that the defendant did not show prejudice because there was strong evidence in the record that the defendant in that capital murder case would have been convicted and sentenced to death even if the prosecution had revealed the suppressed exculpatory evidence. Specifically in Strickler the prosecutor failed to disclose exculpatory materials in the police files, consisting of notes taken by a detective during interviews with an eyewitness and letters written to the detective by the eyewitness, that cast serious doubt on significant portions of her testimony. However, there was additional strong physical evidence and witness testimony that the court found to provide sufficient support for the conclusion that the defendant would have been convicted and sentenced to death even if the witness had been severely impeached or her testimony excluded entirely.

Texas courts have reversed a few cases based on the suppression of exculpatory evidence by the prosecution. The Texas courts essentially follow the same reasoning as the Supreme Court in analyzing these cases.

In Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992), the defense filed a motion requesting exculpatory evidence. The prosecutor responded in the usual way and said the state had no exculpatory evidence. At the trial, the State’s witnesses testified that they saw the defendant drag the deceased behind an apartment building and shoot him. The State suppressed the following exculpatory evidence: A different witness named Walker was interviewed by the police several days after the shooting and the prosecutor personally interviewed Walker about one month after the shooting. The prosecutor and the prosecutor’s investigator also interviewed Walker in the courtroom the first day of trial. After that interview, Walker disappeared and was not available to testify at trial. In all of his interviews, Walker told the State officials that he arrived at the apartment and went upstairs to watch a movie. When he arrived, he saw the defendant in front of the apartments. While Walker was upstairs, he heard arguing and gunshots in the back of the apartments. He ran downstairs and saw the defendant in the front of the apartments. He said that the defendant could not have gotten from the back of the apartments when the shooting occurred to the front that fast because Walker ran down the stairs in a few seconds, and therefore the defendant did not do the shooting.

After trial, the defense learned of this evidence and Walker’s testimony was presented at a motion for new trial. Both the trial court and Court of Appeals refused to order a new trial. However, the Court of Criminal Appeals reversed and held that there was a reasonable probability that the result of the proceeding would have been different with Walker’s testimony.

The Texas Court of Criminal Appeals recently reversed a capital murder conviction based on the suppression of exculpatory evidence. In Ex parte Richardson, 70 S.W.3d 865 (Tex. Crim. App. 2002), the prosecution failed to disclose the existence of a diary kept by a police officer with the Lubbock Police Department that contained substantial information that could have been used to impeach the State’s star witness. This diary was written while the officer was guarding the witness during a period of protective custody. The officer who maintained the diary testified at the post-conviction writ hearing that she kept the diary to protect herself and other officers from false accusations by the witness. The diary contained information about false accusations and statements made by the witness about the officers. At the writ hearing, the officer who wrote the diary as well as five other officers testified the witness was not a truthful person. None of this information had been revealed to the defense. Based on this evidence, the Court of Criminal Appeals found that the three part test for obtaining relief under Brady was met. The Court specifically found that the State failed to disclose the existence of this exculpatory evidence, that the withheld evidence was favorable to the accused and that the evidence was material, that is, that there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.

Recently, the Supreme Court issued an opinion that is a set back for attempts to encourage prosecutors to be open about exculpatory evidence. In United States v. Ruiz, 122 S.Ct. 2450 (2002), the Supreme Court recently held that the Constitution does not require the government to disclose material impeachment evidence prior to entering into a plea agreement.

The Court of Criminal Appeals has also held that the Brady rule did not apply when the accused was already aware of the information. Hayes v. State, 85 S.W.3d 809 (Tex. Crim. App. 2002); Harvard v. State, 800 S.W.2d 195, 204 (Tex. Crim. App. 1989).

If the defendant discovers previously withheld evidence during trial, or close to trial, it is necessary to request a continuance in order to preserve error for appeal. Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982); Williams v. State, 995 S.W.2d 754, 762 (Tex. App. - San Antonio 1999, no pet.); Gutierrez v. State, 85 S.W.2d 446 (Tex. App. - Austin 2002).

SPECIFIC CASES

Reversals of convictions for suppression of exculpatory evidence arise in a variety of circumstances. A sampling of such cases follows:

Supreme Court Cases

Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972): Government failed to disclose impeachment evidence of a promise of immunity in exchange for testimony.

Kyles v. Whitley, supra: State suppressed the following evidence in murder case: contemporaneous eyewitness statements taken by the police which would have undermined the state’s eyewitness testimony, various inconsistent statements made to the police by an informant and a list of cars at the crime scene.

Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967): Habeas granted where prosecution knowingly misrepresented paint-stained shorts as blood-stained, and failed to disclose the true nature of the stains.

Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959): “When reliability of a given witness may well be determinative of guilt or innocence,” nondisclosure of immunity deal with witness violates Due Process.

Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987): Defendant entitled to any exculpatory evidence in child welfare agencies files.

Texas Cases

Ball v. State, 631 S.W.2d 809 (Tex. App. - Eastland 1982, pet ref’d): Error not to disclose picture of defendant with black eye at time of arrest when self defense claimed.

Collins v. State, 642 S.W.2d 80 (Tex. App. - Fort Worth 1982): State did not tell defense material witnesses name or location.

Cook v. State, 940 S.W.2d 623 (Tex. Crim. App. 1996): Withheld evidence that the defendant knew victim and had been to her apartment and failed to disclose material inconsistent statements of a key witness to the Grand Jury.

Crutcher v. State, 481 S.W.2d 113 (Tex. Crim. App. 1972): Witnesses inconsistent statements.

Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989): Crime victims prior inconsistent statement.

Ex parte Brandley, 781 S.W.2d 886 (Tex. Crim. App. 1989): Inconsistent statement by witnesses.

Ex parte Lewis, 587 S.W.2d 697 (Tex. Crim. App. 1979): Existence of doctors letter stating defendant was insane.

Ex parte Turner, 545 S.W.2d 470 (Tex. Crim. App. 1977): Fact that police officer aided in obtaining release of main witness.

Flores v. State, 940 S.W.2d 189, 191 (Tex. App. - San Antonio 1996, no pet.): Witness statement that was material in corroborating defendant’s argument that victim shot herself.

Granger v. State, 653 S.W.2d 868 (Tex. App. 13 Dist. 1983), aff’d, 683 S.W.2d 387 (Tex. 1984), cert. denied, 472 U.S. 1012 (1985): Failure to disclose existence of a deal that changed witness’s sentence from death to lie.

Ham v. State, 760 S.W.2d 55 (Tex. App. - Amarillo 1988, no pet.): Prosecution withheld doctors report which supported defense position and refuted prosecution.

Jones v. State, 850 S.W.2d 223 (Tex. App. - Fort Worth 1993): Prosecution failed to disclose in a timely manner exculpatory information in a victim impact statement which negated the evidence of defendant’s intent to shoot the victim.

O’Rarden v. State, 777 S.W.2d 455 (Tex. App. - Dallas 1989, pet. ref’d): Failure to provide defense copy of Dept. of Human Resources report which indicated no sexual abuse occurred.

Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992): Witness statement to police that defendant was not in a physical position to have been able to commit the offense.

Federal Cases

Ballinger v. Kirby, 3 F.3d 1371 (10th Cir. 1993): Exculpatory photograph.

Banks v. Reynolds, 54 F.3d 1508 (10th Cir. 1995): Fact that another person had been arrested for the same crime.

Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976): Prosecutor did not disclose deal with accomplice/witness for leniency.

Bowen v. Maynard, 799 F.2d 593 (8th Cir. 1986): Evidence that former police officer was initial suspect in the murder for which defendant was convicted.

Brown v. Borg, 951 F.2d 1011 (9th Cir. 1991): Knowledge by prosecutor that her theory of the case was wrong.

Carter v. Rafferty, 826 F.2d 1299 (3rd Cir. 1987): Reports of polygraph test given to important prosecution witness, but see Wood v. Bartholomew, 516 U.S. 1, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995) (because polygraphs are inadmissable even for impeachment they are not subject to Brady).

Chaney v. Brown, 730 F.2d 1334 (10th Cir. 1984): Conviction affirmed but death sentence reversed where withheld evidence contradicted prosecution’s theory of the murder and placed defendant 110 miles from the scene.

Derden v. McNeel, 932 F.2d 605 (5th Cir. 1991): Radio log that would have impeached State’s witnesses.

DuBose v. Lefevre, 619 F.2d 973 (2nd Cir. 1980): State’s encouragement to witness to believe that favorable testimony would result in leniency toward the witness.

Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996): Information showing police intimidation of witness and failure to disclose evidence regarding who was seen carrying the murder weapon shortly after the shooting.

Hudson v. Whitley, 979 F.2d 1058 (5th Cir. 1992): Evidence that the State’s only eyewitness had initially identified someone else, and that person had been arrested.

Hughes v. Bowers, 711 F.Supp. 1574 (N. D. Ga. 1989), aff’d, 896 F.2d 558 (11th Cir. 1990): Evidence that the State’s eyewitness to the murder stood to benefit from the life insurance policy of the victim if the defendant was convicted.

Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968): Racial misidentification case, where prosecutor failed to reveal prior identification problem.

Jacobs v. Singletary, 952 F.2d 1282 (11th Cir. 1992): Failure to disclose statements of witness to polygraph examiner which contradicted trial testimony.

Jean v. Rice, 945 F.2d 82 (4th Cir. 1991): State under duty to disclose information concerning hypnosis session that enabled witness to identify the defendant.

Jones v. Jago, 575 F.2d 1164 (6th Cir. 1978): State withheld, despite defense request, a statement from coindictee who, prior to trial, had been declared material witness for prosecution, and against whom all charges were then dropped.

Lindsey v. King, 769 F.2d 1034 (5th Cir. 1985). Suppression of initial statement of eyewitness to police in which he said he could not identify the murderer because he never saw the murderer’s face.

McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1988): Witness’s initial statement that attacker was white when the defendant was black.

Miller v. Angliker, 848 F.2d 1312 (2nd Cir. 1988): Evidence which showed that another person committed the crimes with which defendant was charged.

Norris v. Slayton, 540 F.2d 1241 (4th Cir. 1976): Failure to furnish to rape defendant’s counsel copy of lab report showing no hair or fiber evidence in defendant’s undershorts or in victim’s bed.

Orndorff v. Lockhart, 707 F.Supp. 1062 (E.D. Ark. 1988), aff’d in part, vacated in part, 906 F.2d 1230 (8th Cir. 1990): Failure to disclose that witness’s memory was hypnotically refreshed during pretrial investigation.

Ouimette v. Moran, 942 F.2d 1 (lst Cir. 1991): Information about extensive criminal record of State’s witness and the existence of a deal with state’s witness.

Reutter v. Solem, 888 F.2d 578 (8th Cir. 1989): Withholding of fact that key witness had applied for commutation and been scheduled to appear before parole board a few days after his testimony.

Sellers v. Estelle, 651 F.2d 1074 (5th Cir. 1981): Police reports containing admissions by other persons of involvement in the offense.

Simms v. Cupp, 354 F.Supp. 698 (D. Ore. 1972): Suppression of original description by witness which differed from her trial testimony.

Spicer v. Roxbury Correctional Institution, 194 F.3d 547 (4th Cir. 1999): Inconsistent statement by government witness as to whether he was really an eyewitness to the crime.

Troedel v. Wainwright, 667 F.Supp. 1456 (S.D. Fla. 1986): State failed to disclose instances of codefendant’s propensity for violence when this supported defense theory.

United States v. Beasley, 576 F.2d 626 (5th Cir. 1978): Failure of government to timely produce statement of prosecution witness when the statement at issue differed from witness’ trial testimony.

United States v. Boyd, 55 F.3d 239 (7th Cir. 1995): Prosecutor failed to reveal to defense drug use by prisoner witnesses during trial and “continuous stream of unlawful” favors prosecution gave those witnesses.

United States v. Brumel-Alvarez, 976 F.2d 1235 (9th Cir. 1992): Memorandum by government agent containing information about credibility of informant.

United States v. Butler, 567 F.2d 885 (9th Cir. 1978): Government failed to disclose that the witness had been promised a dismissal of the charges against him.

United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984): Names and addresses of eyewitnesses to offense that State does not intend to call to testify.

United States v. Cuffie, 80 F.3d 514 (D.C. Cir. 1996): Evidence that prosecution witness had previously lied under oath in proceeding involving same conspiracy.

United States ex. rel. Smith v. Fairman, 769 F.2d 386 (7th Cir. 1985): Police ballistics report showing gun defendant allegedly used to fire at police was inoperable.

United States v. Fisher, 106 F.3d 622 (5th Cir. 1991): Government report reflecting on credibility of key government witness.

United States v. Foster, 874 F.2d 491 (8th Cir. 1988): Failure by prosecutor to correct false testimony.

United States v. Gerard, 491 F.2d 1300 (9th Cir. 1974): Defendants deprived of evidence of promise of leniency by prosecutor, and failure to disclose that witness was in other trouble, thereby giving him even greater incentive to lie.

United States v. Herberman, 583 F.2d 222 (5th Cir. 1978): Testimony presented to grand jury that contradicted testimony of government witnesses.

United States v. Minsky, 963 F.2d 870 (6th Cir. 1992): Withholding from defense fact that witness lied to Grand Jury.

United States v. Pope, 529 F.2d 112 (9th Cir. 1976): Prosecution failed to disclose plea bargain with witness in exchange for testimony and argued to the jury that the witness had no reason to lie.

United States v. Sheehan, 442 F.Supp. 1003 (D. Mass. 1977): Only eyewitness to see the robber’s faces unmasked during a bank robbery was not called to testify because he hesitated in his identification of the defendant.

United States v. Spagnoulo, 960 F.2d 990 (11th Cir. 1992): Government failed to turn over a psychiatric report which indicated that the defendant may have been able to assert an insanity defense.

United States v. Sutton, 542 F.2d 1239 (4th Cir. 1976): Prosecutor withheld evidence that witness was coerced into testifying against defendant.

United States v. Udechukwu, 11 F.3d 1101 (lst Cir. 1993): Evidence to support defendant’s theory that she had been coerced into being a drug courier.

United States v. Weintraub, 871 F.2d 1257 (5th Cir. 1989): Government withheld statement from a presentence report from witness indicating that the defendant was responsible for much smaller amount of drugs than claimed.

Walter v. Lockhart, 763 F.2d 942 (8th Cir. 1985): For over twenty years, the State withheld a transcript of a conversation supporting the defendant’s claim that the officer shot at him first.

Timing of Disclosure

The ability to effectively utilize exculpatory evidence is largely dependent on the defendant’s obtaining timely disclosure. In United States v. Hart, 760 F.Supp. 653 (E.D. Mich. 1991), the Court held that it was the court’s responsibility to fix the timing for disclosure of exculpatory evidence. Other courts have issued opinions stating that disclosure must be made in time for effective use at trial. United States v. Higgs, 713 F.2d 39, 44 (3rd Cir. 1983); United States v. Starusko, 729 F.2d 256, 261 (3rd Cir. 1984).

Requesting Exculpatory Evidence

The prosecution has a duty to reveal exculpatory evidence even without a specific request from the defense and regardless of the good faith or bad faith of the prosecution. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992). However, in order to increase the chances of obtaining exculpatory evidence prior to trial defense counsel should file a motion making specific requests for exculpatory evidence. The more specific the request the more likely it is that the prosecution will reveal the existence of the exculpatory evidence. An example of a specific motion for a DWI case follows:

NO. ____________________


THE STATE OF TEXAS § IN THE COUNTY CRIMINAL

§

V. § COURT NUMBER _________

§

__________________________________ § _________ COUNTY, TEXAS


MOTION FOR DISCOVERY OF EXCULPATORY EVIDENCE


TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES the Defendant in the above-styled case and moves for discovery of exculpatory evidence and requests that the State be ordered to provide all exculpatory evidence and, in support thereof, would show the following:

I.

Defendant is charged in this case with the offense of Driving While Intoxicated. Exculpatory evidence in this case includes, but is not limited to, the following:

1. Any evidence that the Defendant was not intoxicated or that could raise a reasonable doubt as to his intoxication.

2. Any evidence that the Defendant had not lost the normal use of his mental faculties.

3. Any evidence that the Defendant had not lost the normal use of his physical faculties.

4. Any evidence that the Defendant did not have an alcohol concentration of 0.08.

5. Any evidence that the Defendant was driving in a safe and prudent manner.

6. Any evidence that the Defendant was able to understand and follow instructions.

7. Any evidence that the Defendant performed satisfactorily on field sobriety tests.

8. Any evidence that the Defendant was able to adequately perform physical tasks.

9. Any statements by any witnesses that Defendant did not appear intoxicated or raising a doubt as to whether the Defendant appeared intoxicated.

10. Any evidence that the Defendant had not drunk excessive alcohol at or near the time of her arrest.

11. Any evidence that the Defendant had not taken any drugs or controlled substances at or near the time of her arrest.

12. Any indication that the police were unable to find physical evidence indicating or supporting intoxication.

13. Any evidence of defects or problems with the intoxilyzer machine.

14. Any evidence of prior false reports or disciplinary problems with the police officers involved.

15. Any evidence of a quota system by the police regarding Driving While Intoxicated arrests.

16. Any evidence of bias or motive by the police in arresting the Defendant for Driving While Intoxicated.

17. Any evidence that could be used to impeach the State's witnesses.

18. Any other evidence that is in any way exculpatory to the Defendant.

II.

This Motion is based upon the Defendant's right to be informed of exculpatory evidence under the U.S. Const., Amends. V and XIV, and Tex. Const., Art. 1, Sect. 19, and Brady v. Maryland, 373 U.S.83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L.Ed.2d 342 (1976); United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L.Ed.2d 481 (1985); Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

III.

Defendant requests that the prosecuting attorney be ordered to review his file for this evidence and to instruct all State agents, including police officers, to review their records and make a diligent effort to locate exculpatory evidence. Defendant also requests that she receive the information sufficiently prior to trial to be able to prepare to use it in the trial.

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this Motion be granted and the prosecutor be instructed to look for and disclose to the Defendant exculpatory evidence, as defined in this Motion.


Respectfully submitted,

ATTORNEY FOR DEFENDANT


CERTIFICATE OF SERVICE


The undersigned hereby certifies that a true and correct copy of the foregoing Motion was mailed to the _____ County District Attorney, on this ________ day of __________________, 20___.

____________________________________

ATTORNEY FOR DEFENDANT

O R D E R

ON THIS the ________ day of ________________________, 20______, came on to be heard the foregoing Motion for Discovery of Exculpatory Evidence, and said Motion is hereby GRANTED/DENIED.

____________________________________

J U D G E

0Gary Udashen is a partner in Sorrels & Udashen in Dallas. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization and the National Board of Trial Advocacy. He is a 1980 graduate of SMU School of Law and formerly served as Feature Articles Editor for the Voice for the Defense, the periodical of the Texas Criminal Defense Lawyers Association. Mr. Udashen has spoken at criminal law seminars sponsored by the State Bar of Texas, the Texas Criminal Defense Lawyer’s Association, the Dallas County Criminal Defense Lawyer’s Association and the Dallas Bar Association. Mr. Udashen’s practice is limited to criminal trials and appeals.

1In Ramirez v. State, 2002 WL 1723751 (Tex. App. - Austin), the Court reversed a case based on the prosecution’s failure to correct false testimony from a State’s witness that she was not looking for money based on being a victim of the crime alleged even though she had hired a lawyer to pursue a lawsuit. The Court in Ramirez summarized the law as follows:

“In Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Court acknowledged that since Mooney, it has been clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with ‘the rudimentary demands of justice.’ See Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214 (1942). And in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the Court concluded that the same result obtains when the prosecution, ‘although not soliciting false evidence, allows it to go uncorrected when it appears.’ Id. at 269, 79 S.Ct. 763. When the reliability of a given witness may well be determinative of the guilt or innocence of an accused, nondisclosure of evidence affecting credibility falls within the general rule discussed. Giglio, 405 U.S. at 154, 92 S.Ct. 763. This line of cases has sometimes been referred to as the Mooney-Pyle-Napue line of decisions. See 42 George E. Dix & Robert O. Dawson Texas Practice: Criminal Practice and Procedure §22.51 (2d ed.2002) (hereinafter Dix); see also generally Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Ex parte Castellano, 863 S.W.2d 476 (Tex. Crim. App. 1993); Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989); Davis v. State, 831 S.W.2d 426 (Tex. App. - Austin 1992, no pet.).

Although Brady relied upon Mooney, see Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), and there have been suggestions that the Mooney line of cases were incorporated in the later Brady rule, the two lines of decision are distinctive. See United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). It has been stated: Although Brady v. Maryland and its progeny suggest the due process to disclose may have superseded and replaced the prohibition against the use of perjured testimony, this is not the case. The prohibition against the use of perjured testimony remains available to defendants as an alternative to Brady arguments. Mooney contentions are sometimes more attractive to defendants because the criterion for determining the materiality of improperly used perjured testimony is more lenient than that for determining the materiality of improperly suppressed exculpatory evidence under Brady. The difference between the two due process rules is not entirely clear. Some situations will present viable arguments that both were violated. If a defendant is able to establish both that the State knowingly used perjured testimony and that it failed to disclose evidence showing the falsity of the testimony, the defendant is entitled to relief if he or she can show the testimony used is material under the perjured testimony line of decisions and its more relaxed materiality standard. Dix §22.5 (citations omitted)

While appellant relies upon both due process rules, we conclude it is necessary to examine only the Mooney-Pyle-Napue line of decisions to reach the proper disposition of appellant’s contention. We review the record to determine if the State ‘used’ the testimony, whether the testimony was ‘false,’ whether the testimony was ‘knowingly used,’ and if these questions are affirmatively answered, whether there is a reasonable likelihood that the false testimony could have affected the judgment of the jury.”

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All those TYC "clients" fund "machine" and by golly they will be tried as adults or denied 6th amendment, but Delay will get paid with out Delay!

Chisme is not verdad, but it would be prudent to tell all of you Medicaid coverage is bankrolled by the government to the tune of $600 dollars per recipient /per month.

Now you do the math.

Right John?

Malicious Prosecutor.....your damn right it is personal!

http://stxv.blogspot.com/

The Mootness of this Act is the Joke of the ABA~Texas Justice~ $$$$$$$

Breach of confidence
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The tort of breach of confidence, is a common law tort that protects private information that is conveyed in confidence. A claim for breach of confidence typically requires the information to be of a confidential nature, which was communicated in confidence, and was disclosed to the detriment of the claimant.

Establishing breach of confidentiality depends on proving the existence and breach of a duty of confidentiality. Courts in the US look at the nature of the relationship between the parties. Most commonly, breach of confidentiality applies to the patient-physician relationship but it can also apply to relationships involving banks, hospitals, insurance companies.

Texas court of Criminal appealsdid not take any action on this motion.......

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NUMBER 13-02-439-CV



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI-EDINBURG



IN RE: JESSICA GARCIA



On Petition for Writ of Mandamus



O P I N I O N



Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Chief Justice Valdez



Relator, Jessica Garcia, has filed a petition for writ of mandamus complaining that the trial court abused its discretion in reinstating the lawsuit of the real party in interest, Virginia Carroll-Boyd. We conditionally grant relief.

Background

The trial court dismissed a personal injury case for want of prosecution. Thirteen days later, the plaintiff filed an unverified motion for new trial and to reinstate, alleging merely that:

The Plaintiff requests that her case be reinstated and that she be granted a new trial. The Plaintiff=s attorney was in Austin, Texas on February 22, 2002, and desires to proceed . . . .



The trial court did not take any action on this motion. One hundred and eight days after the order of dismissal was entered, the plaintiff=s attorney filed an affidavit stating that he Areceived no Notice of this case being placed on the Dismissal Docket or of the hearing scheduled for February 22, 2002 . . . .@ The affidavit provided that the attorney had moved his law office to Austin in October of 2001, and had notified the Nueces County District Clerk regarding his change of address. Thus, the attorney alleged that the cause was dismissed without proper notice, and that the plaintiff wished to pursue her case. The trial court granted the motion to reinstate and motion for new trial the day after this affidavit was filed. The defendants in this case have filed a petition for mandamus on grounds that the trial court acted without jurisdiction in granting the motion to reinstate and for a new trial.

Mandamus is Proper Remedy

If the trial court erroneously reinstates a case after it loses jurisdiction, the ruling can be challenged by mandamus. Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994); see, e.g., City of McAllen v. Ramirez, 875 S.W.2d 702, 704 (Tex. App.BCorpus Christi 1994, orig. proceeding).

Analysis

A trial court has plenary power to reinstate a case within thirty days of dismissal for want of prosecution. Tex. R. Civ. P. 165(a)(3), (4); Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.BHouston [1st Dist.] 1995, no writ). A verified motion to reinstate filed within thirty days of dismissal extends plenary power for the same amount of time as would a motion for new trial. Tex. R. Civ. P. 165(a)(3), (4); McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding).

In this case, the plaintiff=s motion to reinstate was not verified and did not include affidavits. An unverified motion is a nullity and does not extend the trial court=s plenary jurisdiction or the deadlines for perfecting an appeal. McConnell, 800 S.W.2d at 194. Therefore, the trial court=s plenary jurisdiction expired because the plaintiff did not file a verified motion within thirty days after the order of dismissal. Id. Accordingly, the trial court had no authority to grant the reinstatement motion after March 25, 2002, thirty days after the February 22, 2002, dismissal (the thirtieth day falls on a weekend).

We cannot consider the late-filed affidavit as an amended motion to reinstate because any amended motion was also required to be filed within thirty days of the date the dismissal order was signed. See Mandujano v. Oliva, 755 S.W.2d 512, 514 (Tex. App.BSan Antonio 1988, writ denied).

We cannot treat the plaintiff=s AMotion for a New Trial and to Reinstate@ as a motion for new trial, which is not required to be verified to extend plenary power. See Tex. R. Civ. P. 329(b) (no verification requirement for a motion for new trial). We cannot construe the motion to reinstate as one for a new trial even though it is labeled as such; rather, we look at the substance of the motion, which is one to reinstate. City of McAllen v. Ramirez, 875 S.W.2d 702, 704-05 (Tex. App.BCorpus Christi 1994, no writ) (a litigant may not circumvent the verification requirements of rule 165(a)(3) by labeling a motion for reinstatement as a motion for new trial); see State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (orig. proceeding).

Therefore, the trial court=s jurisdiction expired thirty days after entry of the order of dismissal. Even if we were to somehow manage to construe the motion to reinstate as a motion for new trial, the trial court=s plenary jurisdiction had expired. The motion for reinstatement was overruled by operation of law because it was not decided within seventy-five days after the judgment was signed. Tex. R. Civ. P. 165(a)(3). The trial court had plenary power to reinstate the case until thirty days after any such timely filed motion was overruled. Id. May 8, 2002 was the seventy-fifth day after the order dismissing the case; June 7, 2002, was the thirtieth day after the motion to reinstate was overruled; and the reinstatement order was not entered until June 11, 2002.

Conclusion

We conclude that the trial court lacked jurisdiction to reinstate the case. We conditionally grant the petition for writ of mandamus. The writ will only issue if the trial court refuses to withdraw its order reinstating the case.





ROGELIO VALDEZ

Chief Justice





Publish.

Tex. R. App. P. 47.3.



Opinion delivered and filed

this 12th day of December, 2002.

We find it particularly disingenuous that the State, after misleading the trial court about when the sixty-day deadline would run, and then promising

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NUMBER 13-05-00181-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS, Appellant,


v.


ESTANISLADO MORIN, Appellee.

On appeal from the 275th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION


Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa


The State appeals from the trial court's order granting appellee Estanislado Morin's application for writ of habeas corpus and granting a new trial. (1) In three issues, the State contends the trial court (1) used the incorrect legal standard to evaluate appellee's newly-discovered evidence claim, (2) abused its discretion in granting his application for writ of habeas corpus based on newly-discovered evidence, and (3) failed to enter the habeas corpus order within the statutory time limit. We reverse and remand.

A. Factual & Procedural Background

A jury found appellee guilty of two counts of indecency with a child and assessed his punishment at five years' imprisonment and a $ 5,000 fine for each count. Because the jury recommended that the prison sentences and fines for both counts be suspended and that appellee be placed on community supervision, the trial court suspended the prison sentences and fines for both counts, and placed appellee on community supervision for five years for each count. (2) Subsequently, appellee was deported and complied with the terms of his community supervision by mail.

On October 10, 2003, appellee applied for a post-conviction writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure, alleging (1) ineffective assistance of counsel and (2) newly-discovered evidence of innocence. In support of his newly-discovered evidence allegations, appellee attached an affidavit of the complaining witness, Veronica Salazar, (3) dated September 19, 2003, wherein she recanted her prior testimony. The State did not receive notice of the application until April 27, 2004, and filed a response on May 24, 2004. The State attached an affidavit, dated May 4, 2004, wherein Salazar recanted her September 19, 2003 recantation. The State also noted that appellee should have filed his post-conviction writ pursuant to article 11.072, instead of article 11.07. (4) See Tex. Code Crim. Proc. Ann. arts. 11.07, 11.072 (Vernon 2005).

On May 27, 2004, the trial court overruled appellee's claim of ineffective assistance of counsel and ordered a hearing on appellee's issue regarding the newly-discovered evidence of innocence. That hearing was held on June 29, 2004, and Salazar testified about her conflicting affidavits. The proceedings were then recessed to July 16, 2004, so that appellee, who was absent because of his deportation, could be present.

The hearing resumed on July 16, 2004, without appellee, who waived his presence. Both sides discussed the sixty-day statutory deadline at great length, and several times the State told the trial court that it would waive the sixty-day deadline, if it could be waived. Both sides mistakenly told the court when they thought the sixty-day deadline would elapse. Salazar testified again regarding her affidavits, explaining that she was pressured by family members to execute the September 19, 2003 affidavit, and her testimony at trial was truthful. After the hearing, the trial court said that before it ruled, it wanted additional memorandums from both sides. On October 22, 2004, the trial court ruled that Salazar's credibility was a question for a jury, and orally granted appellee a new trial. A written order reflecting this ruling was signed on March 4, 2005.

B. Standard of Review

In reviewing a district court's decision to grant a habeas corpus petition, we review the application of legal standards de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003). We afford almost total deference to the trial judge's determination of the historical facts supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999). However, "if the record will not support the trial judge's conclusions, then this Court may make contrary findings." See Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App. 1989).

C. Discussion

In its third issue, the State contends the trial court erred by failing to enter its written order within the statutory deadline of sixty days. The State argues that because the order was not entered within the sixty-day period, the order is void and appellee's application was denied by operation of law. (5)

Article 11.072 of the code of criminal procedure provides that: "Not later than the 60th day after the day on which the State's answer is filed, the trial court shall enter a written order granting or denying the relief sought in the application." Tex. Code Crim. Proc. Ann. art. 11.072. Because the State's answer to appellee's application was filed on May 24, 2004, the 60th day was July 23, 2004.

Habeas corpus petitions are to be heard without delay. See Tex. Const. art. I, § 12; Tex. Code Crim. Proc. Ann. art 11.07; Martin v. Hamlin, 25 S.W.3d 718, 719 (Tex. Crim. App. 2000); McCree v. Hampton, 824 S.W.2d 578, 578-79 (Tex. Crim. App. 1992). The proper remedy to a trial court's delay in ruling on a habeas corpus petition under article 11.072 is to file for a petition for a writ of mandamus from this Court. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991). After a trial court's ruling on a habeas corpus petition, compliance with statutory deadlines becomes moot. See McCree, 824 S.W.2d at 579; see also Ex parte Kendrick, No. 01-95-00161-CR, 1996 Tex. App. LEXIS 3400, *2 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd) (not designated for publication).

The record shows the trial court failed to rule on appellee's habeas corpus petition within the sixty days required by article 11.072. However, because the trial court ultimately ruled on the petition, we conclude that the timing issue is moot. (6) The State's third issue is overruled.

In its first issue, the State contends the trial court used the incorrect legal standard to evaluate appellee's newly-discovered evidence claim. Claims of actual innocence fall into two categories: Herrera claims and Schlup claims. See Schlup v. Delo, 513 U.S. 298 (1995); Herrera v. Collins, 506 U.S. 390 (1993). A bare claim of actual innocence based solely on newly-discovered evidence is an Herrera claim, whereas a claim of actual innocence that is tied to a claim of constitutional error at trial is a Schlup claim. Schlup, 513 U.S. at 314. Because the Herrera and Schlup claims are different, they employ different burdens of proof. Id.

Because the verdict of a constitutional-error-free trial commands the greatest respect, the criminal justice system has a need for finality, and retrying stale cases that were originally tried years before imposes a heavy burden on the State, the burden of proof in Herrera claims is "extraordinarily high." See Herrera, 506 U.S. at 417; Davila v. State, 147 S.W.3d 572, 577-78 (Tex. App.-Corpus Christi 2004, pet. ref'd). To succeed in an Herrera claim, "the petitioner must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).

Appellee's first trial was found to be error-free by this Court in Morin v. State, No. 13-01-00001, 2002 Tex. App. LEXIS 3783 (Tex. App.-Corpus Christi 2002, pet. ref'd) (not designated for publication). Furthermore, appellee's claim of innocence is unaccompanied by a claim of constitutional error and is therefore an Herrera claim. Accordingly, appellee must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. Because the trial court ruled that "the proper forum to decide the credibility of a victim is the jury," we conclude it used the wrong legal standard. The State's first issue is sustained.

In light of our disposition of the State's first and third issues, it is unnecessary to address the State's second issue. See Tex. R. App. P. 47.1.

The trial court's order granting appellee's application for a writ of habeas corpus is reversed. The case is remanded to the trial court to timely determine whether appellee has shown by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. (7)


FEDERICO G. HINOJOSA

Justice


Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 17th day of August, 2006.

1.
See Tex. Code Crim. Proc. Ann. art. 44.01(k) (Vernon Supp. 2006) ("The state is entitled to appeal an order granting relief to an applicant for a writ of habeas corpus under Article 11.072.").

2.
This Court affirmed appellee's conviction on May 23, 2002. See Morin v. State, No. 13-01-001-CR, 2002 Tex. App. LEXIS 3783 (Tex. App.-Corpus Christi 2002, pet. ref'd).

3. Appellee is Veronica Salazar's uncle by marriage to her mother's sister.

4. The record reflects that the parties agreed to proceed under article 11.072, and that relator did not need to refile.

5.
Because the State's third issue affects our ability to consider the State's remaining two issues, we will decide it first.

6.
We find it particularly disingenuous that the State, after misleading the trial court about when the sixty-day deadline would run, and then promising to waive it in any event, is now raising it as an issue on appeal.

7.
It would be improper for this Court to evaluate the merits of appellee's petition de novo because only the district court has the power to grant appellee's petition. See Tex. Code Crim. Proc. Ann. art 11.072 (Vernon 2005); see also Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (ordering remand of article 11.07 habeas petition to consider under correct standard).

Too bad John Hubert and Patti Hubert need to read this again

THE TEXAS LAWYER'S CREED
A Mandate for Professionalism
Promulgated by The Supreme Court of Texas and the Court of Criminal Appeals November 7, 1989

I am a lawyer; I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that Professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this Creed for no other reason than it is right.

I. OUR LEGAL SYSTEM

A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.

1. I am passionately proud of my profession. Therefore, "My word is my bond."
2. I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.
3. I commit myself to an adequate and effective pro bono program.
4. I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.
5. I will always be conscious of my duty to the judicial system.

II. LAWYER TO CLIENT

A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client's legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.

1. I will advise my client of the contents of this Creed when undertaking representation.
2. I will endeavor to achieve my client's lawful objectives in legal transactions and in litigation as quickly and economically as possible.
3. I will be loyal and committed to my client's lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.
4. I will advise my client that civility and courtesy are expected and are not a sign of weakness.
5. I will advise my client of proper and expected behavior.
6. I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.
7. I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.
8. I will advise my client that we will not pursue tactics which are intended primarily for delay.
9. I will advise my client that we will not pursue any course of action which is without merit.
10. I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client's lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.
11. I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.

III. LAWYER TO LAWYER

A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer's conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.

1. I will be courteous, civil, and prompt in oral and written communications.
2. I will not quarrel over matters of form or style, but I will concentrate on matters of substance.
3. I will identify for other counsel or parties all changes I have made in documents submitted for review.
4. I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties.
5. I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are cancelled.
6. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.
7. I will not serve motions or pleadings in any manner that unfairly limits another party's opportunity to respond.
8. I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.
9. I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.
10. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.
11. I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel's intention to proceed.
12. I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.
13. I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.
14. I will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement.
15. I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.
16. I will refrain from excessive and abusive discovery.
17. I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.
18. I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.
19. I will not seek sanctions or disqualification unless it is necessary for protection of my client's lawful objectives or is fully justified by the circumstances.

IV. LAWYER AND JUDGE

Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.

1. I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.
2. I will conduct myself in court in a professional manner and demonstrate my respect for the Court and the law.
3. I will treat counsel, opposing parties, witnesses, the Court, and members of the Court staff with courtesy and civility and will not manifest by words or conduct bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation.
4. I will be punctual.
5. I will not engage in any conduct which offends the dignity and decorum of proceedings.
6. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.
7. I will respect the rulings of the Court.
8. I will give the issues in controversy deliberate, impartial and studied analysis and consideration.
9. I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.

Order of the Supreme Court of Texas and the Court of Criminal Appeals

The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession's broader duty to the legal system.

The Supreme Court of Texas and the Court of Criminal Appeals are committed to eliminating a practice in our State by a minority of lawyers of abusive tactics which have surfaced in many parts of our country. We believe such tactics are a disservice to our citizens, harmful to clients, and demeaning to our profession.

The abusive tactics range from lack of civility to outright hostility and obstructionism. Such behavior does not serve justice but tends to delay and often deny justice. The lawyers who use abusive tactics, instead of being part of the solution, have become part of the problem.

The desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree of ethical and professional conduct. These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon reenforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence.

These standards are not a set of rules that lawyers can use and abuse to incite ancillary litigation or arguments over whether or not they have been observed.

We must always be mindful that the practice of law is a profession. As members of a learned art we pursue a common calling in the spirit of public service. We have a proud tradition. Throughout the history of our nation, the members of our citizenry have looked to the ranks of our profession for leadership and guidance. Let us now as a profession each rededicate ourselves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.

The Supreme Court of Texas and the Court of Criminal Appeals hereby promulgate and adopt "The Texas Lawyer's Creed -- A Mandate for Professionalism" described above.

In Chambers, this 7th day of November, 1989.

The Supreme Court of Texas

Thomas R. Phillips, Chief Justice
Franklin S. Spears, Justice
C. L. Ray, Justice
Raul A. Gonzalez, Justice
Oscar H. Mauzy, Justice
Eugene A. Cook, Justice
Jack Hightower, Justice
Nathan L. Hecht, Justice
Lloyd A. Doggett, Justice

The Court of Criminal Appeals

Michael J. McCormick, Presiding Judge
W. C. Davis, Judge
Sam Houston Clinton, Judge
Marvin O. Teague, Judge
Chuck Miller, Judge
Charles F. (Chuck) Campbell, Judge
Bill White, Judge
M. P. Duncan, III, Judge
David A. Berchelmann, Jr., Judge

Of course this act is a a Joke and don't forget "the issue of his actual innocence" claim WILL B ReJECTED~

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

---

WR-27,818-05

---

EX PARTE DAROYCE LAMONT MOSLEY

---

ON APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. 21,932-B FROM THE

124^TH DISTRICT COURT OF GREGG COUNTY

---

Per Curiam. keasler, j., not participating.

ORDER

This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts he is actually innocent of the capital murder for which he was convicted and sentenced to death.

Applicant was convicted of capital murder on October 17, 1995. We affirmed the conviction and sentence on direct appeal. Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). On October 9, 1997, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. While that application was pending in the convicting court he filed an untimely supplement on December 14, 1998. We denied relief on his initial application and dismissed the untimely supplement as an abuse of the writ. Ex parte Mosley WR-27,818-02 & 27,818-03 (Tex. Crim. App. June 30, 1999). On August 20, 2007, applicant filed a second subsequent application, we again dismissed as an abuse of the writ. Ex parte Mosley, WR-27,818-04 (Tex. Crim. App. August 21, 2007).

1. At trial, on appeal, in his initial application and in his subsequent application for writ of habeas corpus, applicant raised the issue of his actual innocence; the claim was rejected each time. Applicant again raises the same issue, that he did not shoot any of the four victims who died or the fifth victim who survived. We have reviewed this application and find that it does not meet the requirements for consideration of subsequent claims under Article 11.071, Section 5(a). This application is dismissed as an abuse of the writ; the motion for stay of execution is denied.

IT IS SO ORDERED THIS THE 28^TH DAY OF AUGUST, 2007.

Do Not Publish

Rod ellis and Perry pretend they are going to provide you a Colleen McHugh, no, no, no,....poor , now then there is a system for you

Press Release from State Senator Rodney Ellis

For Immediate Release
Thursday, June 14, 2001
Contact: Jeremy Warren, (512) 463-0113

Perry Signs Landmark Texas Fair Defense Act

New Law Overhauls Texas' Indigent Criminal Defense System

(Austin)//Governor Rick Perry today signed into law the Texas Fair Defense Act, landmark legislation to overhaul Texas' indigent criminal defense system. Senator Rodney Ellis (D-Houston), author of the legislation, praised Governor Perry's action.

"I am extremely pleased by Governor Perry's decision to sign the Texas Fair Defense Act into law," said Senator Ellis. "With today's signature, Texas has taken an historic stand for fairness. The Texas Fair Defense Act balances the scales of justice to ensure that poor Texans are not sentenced to a poor defense."

Texas' criminal justice system has been the focus of national and international criticism, particularly the lack of standards and state oversight of attorneys appointed to represent indigent defendants. The Texas Fair Defense Act addresses this criticism by focusing on four critical issues -- timely appointment of counsel, method of counsel appointment by the courts, reporting of information about indigent representation services, and minimum standards for counsel. The legislation also creates a task force within the Judicial Council to recommend further improvements and direct funding to assist counties in the improvements.

Senate Bill 7 ensures prompt appointment of an attorney for indigent criminal defendants in Texas. The legislation gives courts three options of appointment - a rotation or "wheel" system, a locally-controlled public defender system, or an alternate fair system designed by the judges in the county and approved by a regional presiding administrative judge. The legislation ensures ultimate decision making remains with judges and counties while providing necessary state input and oversight. Senate Bill 7 also requires counties and judges to collect and report information to the state on indigent criminal defense procedures and expenditures.

Senator Ellis has led the fight to reform Texas' indigent criminal defense system. The Texas Fair Defense Act is the product of nearly two years of bipartisan collaboration between legislators, the State Bar, district judges, prosecutors, defense attorneys, and reform groups to provide indigent Texans with timely, adequate counsel at trial.

"A lot of Texans were embarrassed by the problems in our criminal justice system revealed over the past two years," said Ellis. "The Texas Fair Defense act is not a magic potion that will cure all of those ills, but it is a significant first step toward creating a criminal justice system that Texans can be proud of."

###

Sunday, July 08, 2007.....another promo by the "patriot group'" to promote the Nazi wall Agenda......Reaganomics don't work

Watts Law Firm

Sunday, July 08, 2007
Another fabrication by Cornyn to promote his racist and Nazi Wall agenda
Saturday, August 05, 2006
New Sentencing Trial for Texas Death Row Inmate

The Odessa American has a story on the new sentencing trial previously ordered for Michael Dean Gonzales. The U.S. Fifth Circuit Court of Appeals last week denied his habeas petition which raised claims that prosecutors failed to turn over exculpatory evidence and ineffective assistance of counsel at his capital murder trial.

The Odessa American story is here.

Not at issue before the Fifth Circuit was a federal district court's earlier order that Gonzales receive a new sentencing trial because of racist testimony by the state's expert witness.

The pertinent paragraph is on page 7 of the circuit court's decision:

Gonzales filed a supplemental petition in August, 2000, asserting that the State’s psychological expert witness testified, unconstitutionally, that race is an indicator of future dangerousness. The State conceded that this claim is valid and entitled Gonzales to a new sentencing hearing. The district court so ordered, and neither party has appealed its ruling on this point.

This is from the Odessa American story; the person quoted is Ector County District Attorney Bobby Bland (presumably no relation to the legendary soul singer Bobby Blue Bland):

Bland said that it’s his understanding that the penalty phase of the trial was overturned because of a faulty witness in the case handled by a previous district attorney.

“My understanding was that we had an expert witness who’d been called in to witness on other cases, and his testimony created some problems in the cases, because there were comments on race,” Bland said. “In our case, I don’t think he testified that way.”

On June 11, 2000, then-State Attorney General John Cornyn announced six convicted killers, including Gonzales, would likely have their death sentences overturned. The U.S. Supreme Court found that psychologist Walter Qijano was racially biased in his testimony in the case of Victor Saldano. Qijano had also testified as an expert witness in Gonzales’ case.

Actually, that understates Cornyn's role. The state's expert psychologist, Quijano, had testified in six separate cases that being Hispanic was an aggravating factor, and for that reason the Hispanic men would represent a future danger and that the death penalty was the appropriate punishment. In a rare move, the Attorney General announced that he would not defend such blatantly racist testimony.

It was a courageous stand that drew opposition from some Texas district attorneys. Unfortunately, as the junior U.S. Senator, Cornyn has stood with a handful of Republicans in the House and Senate over the past year who have repeatedly attempted to severely limit federal court review of state death penalty convictions. Yesterday, the Ohio Death Penalty Information blog had this post noting Cornyn's latest attempt to put such language in a bill designed for judicial security. LINK

Saturday, August 05, 2006 at 06:21 PM in Fifth Circuit, Race, Specific Case | Permalink | Comments (0)

Labels: Prejudice, race, SCOTUS, Texas Fair Defense Act

// posted by dannoynted1 @ 6:48 PM 0 comments links to this post
Cornyn on punking the SCOTUS to get this SCOTUS case back to Texas to punk the justice system and the US Constitution
Wednesday, September 27, 2006
Super-Bad Bush Nominees Get a Needless Day in Court

That's the title of Cragg Hines' column in today's Houston Chronicle. Hines, the paper's Washington, D.C. based columnist, reports on the Senate Judiciary Committee hearings on two federal court nominees, including one nominated for the U.S. Fifth Circuit Court of Appeals. LINK

As afternoon moved toward evening, it became clear that one purpose of the hearing was to allow Republican members to beat up on the ABA for daring to buck even a couple of Bush nominees. This was a preoccupation of Sen. John Cornyn, R-Texas, in his loaded softballs.

Unfortunately, one of the nominees is for a vacancy on the 5th U.S. Circuit Court of Appeals, which hears cases from Texas, Louisiana and Mississippi. That's the federal appeals circuit, according to the NAACP Legal Defense and Educational Fund, with the highest percentage of minority residents.

So, naturally, Bush has nominated a lawyer with a career-long antipathy to such basic civil rights touchstones as the Voting Rights Act and single-member districts.

It's sort of a sick joke, but it's also perversely real. Bush wants this guy to have a lifetime seat on a court that remains an important gatekeeper in the world of civil rights litigation.

The superbly unsuited nominee is Michael B. Wallace, a politically well-connected Jackson, Miss., attorney.

He might be the only appeals circuit nominee who has received a unanimous "not qualified" rating from the ABA's standing committee on the federal judiciary. No one can recall another.

After two separate ABA inquiries into Wallace's nomination earlier this year, the bar committee came up with the same conclusion: Wallace, while of the "highest professional competence," lacks a judicial temperament and a commitment to equal justice.

Wallace's rating is hard to come by. Of the 90 Bush judicial nominations that the ABA committee has rated in the current, 109th Congress, only Wallace received a unanimous "not qualified" rating. Twice — after he was nominated in February, and then when, because of procedural rules, he was nominated again earlier this month.

With the changing committee membership over the year, Leahy pointed out, 21 different members of the ABA panel have rated Wallace. "None found him to be qualified," Leahy said.

The ABA committee is not, as some Republicans seek to paint it, an ideologically driven panel. Almost half of Bush's nominees in this term have received a unanimous rating of "well qualified."

Only three other nominees have been rated as "not qualified" by what the committee calls a "substantial majority" (with a minority rating them qualified).

Wednesday, September 27, 2006 at 09:50 AM in ABA, Fifth Circuit | Permalink | Comments (0) | TrackBack (0)

Labels: consent, lies, Prejudice, SCOTUS, Texas Fair Defense Act, warrant

// posted by dannoynted1 @ 6:40 PM 0 comments links to this post
Tuesday, July 03, 2007
Mikal Watts in San Antono

// posted by dannoynted1 @ 9:57 AM 0 comments links to this post
Sunday, May 27, 2007
money buys for giving ?/////////
One day in Iraq

The son of a friend is a soldier stationed in Iraq. Recently, he and his buddy were on patrol. A sniper shot his buddy in the head. He was unharmed. A young man is dead and his friend will most likely live with the memory of that horrible scene the rest of his life.

We hear on the news of "Five U.S. asualties in Iraq today" and we think, "That's terrible." But when you know a young person (or his family) who will never come home or by the experience be traumatized forever, you will feel their loss and anguish. How many more of our young people will be killed in this senseless morass?

My grandson is stationed on the USS John Stennis in the Persian Gulf. Every day I'm thankful he is not patrolling the streets of Iraq.

Molly Mulle

(Rockport)

Bomb-scare change

I must express my concern regarding CCISD's new policy of "locking down" the students rather than "evacuating" them during possible bomb threats. What prompted the change in this policy?

My children brought home letters from Ray High School on May 15 regarding a possible bomb threat. I have real issues with the district's new policy allowing the schools to "lock down" students during an investigation to determine whether a bomb threat is valid. Previous policy to evacuate students while the situation was investigated and return students to classrooms when the situation was cleared was a more logical way to protect our students and staff. Granted, the majority of these "threats" turn out to be pranks or just threats. Security is an issue everywhere now and a real bomb would not be a surprise anymore.

If the district is concerned about funding because of valuable time lost due to this criminal behavior, then time should be made up just as time lost for inclement weather is made up.

Individuals cannot "joke" about bombs in airports, etc., without severe penalty. It should be the same in schools. What happened to "zero" tolerance?

Pat Dunegan

Parade in the dark

The "Illuminated" Buccaneer Night Parade at the stadium was anything but illuminated. I was greatly disappointed, and all the people I have spoken to concerning the parade feel the same.

In the beginning, when there was still some light, it was all right, but as night came and the lights were turned off (we knew the lights were going to be off), it was pitch black. I know that a lot of money and time are spent by everyone involved, especially the high-school bands, and for the public not to be able to see their performance is a big letdown. Some "lights" were supposed to have been given to the people sitting in the aisles, but nobody in my section got any lights. Many elderly people had trouble walking up the steps to their seats. About the only floats with plenty of lights were the floats from out of town. The Corpus Christi floats did not compare to them.

I am hoping that next year's parade will be better planned. I love a parade. The band's music is good therapy for our tired bodies. Let us have a real "illuminated" night parade so that we can feel the enthusiasm of the participants. It brings back memories of when I participated with the Buccaneer Band and later with the Veteran's Band of Corpus Christi.

Luis R. Corona Sr.

Good public servant

Melody Cooper is one of the most dedicated members on the City Council that we know. She is honest and very dependable, always ready to go the extra mile to help. Why doesn't the Caller-Times tell her side of the story?

Dorothy Earwood

Ethical compass

Trial lawyers invented the term "moral relativity." Trial lawyer Mikal Watts has attempted to frivolously dismiss a complaint filed with the Texas Ethics Commission against state Rep. Juan Garcia. Voters should question Watt's moral relativity. Watts is the financier and instigator behind Juan Garcia. Why?

Watts has a huge stake invested in Garcia. Watts' good government PAC practically funded Garcia's campaign. In Jaime Powell's column about Garcia's ethics violations, Watts said Garcia didn't have time to respond to constituents' complaints about Garcia's unreported $42,000 in contributions. Watts said Garcia needs "to work the people's business instead of spending time responding to complaints." What?

Why is Mikal Watts telling us that Garcia is too busy to respond to his constituents? Please, Mr. Watts, let Rep. Garcia speak and let him speak for himself. Does he need a trial lawyer to speak for him? Let Juan Garcia tell us about his misreporting $42,000 in contributions. Rep. Garcia, we teach our children that our government representatives are morally ethical individuals. Hopefully, that belief is instilled, will make them great supporters, advocates and voting participants in our democracy. Sad, but true; you sir, have let them down. The compass of your moral relativity has cracked.

Leo O. GildersleevE

No one's perfect

For 12 years Melody Cooper has served us well, the residents of Corpus Christi, in the capacity of City Council member. Personally, I see no reason for her to resign as some are suggesting.

Those asking for her to resign should ask of themselves, "Have I ever made a mistake?" Where is your compassion?

We humans are not perfect and should have consideration for others when they err. Who are we to judge? Let the Almighty take care of this.

Also, the recent city elections are over, the people who voted have spoken, so let us give the new council our support, show the members respect and allow them to work together as a team for the betterment of our city.

Cefe F. Valenzuela

Shamsie's folly

Thank you, Judge Shamsie, for your years of service. Just one question, could you tell us how much more your bungled job is going to cost the taxpayers of Nueces County?

Between the Fairgrounds and the road projects, Judge Shamsie has cost the taxpayers hundreds of thousands of dollars in legal fees and penalties. How much more is hidden in the ongoing projects and contracts that we don't know about yet? For the sake of a few minutes of his time we paid a huge chunk of fees and expenses to clear up the Fairgrounds issues.

It is sorry that in his wake the new judge has to clean up his mess, and at our expense. What is more sorry is that there doesn't seem to be any accountability for the mistakes made by our elected officials.

Think of all the good a couple of hundred thousand dollars could do. It could have been used to fix some of the drainage issues, rather than draining the funds to the lawyers who have to fix the mess.

We taxpayers really have bigger needs and better use for the dollars that Judge Shamsie wasted by lack of attention to detail. Please, Judge Neal, pay more attention to the fine points that so readily waste our hard-earned money.

Steven Cohen
Post Your Comments

Posted by drtcpip on May 22, 2007 at 7:59 a.m. (Suggest removal)

Amen Judge Sham. Indeed your legacy will be like your predecessor, Lord High Protector of Robstown, Borchard. Spends millions of our dollars for your little pet projects. Adios amigo and good riddance.

Posted by rabbit78418 on May 22, 2007 at 9:29 a.m. (Suggest removal)

How can you intentionally falsify legal documents and then say sorry I made a mistake? The mistake was thinking she could lie and get away with it.

Posted by smfuentes1 on May 22, 2007 at 10:20 a.m. (Suggest removal)

I totally agree with Pat Dunegan, if there is a bomb threat, how can you lock down the school and keep the kids inside, while you search to see if the threat is valid, and if it is valid, and the bomb goes off, you just lost alot of innocent lives, by the decision not to evacuate as soon as you got the bomb threat. Most likely if there is a bomb, it will be inside the school, so whoever came up with this bright idea to keep the kids in lockdown, better start thinking twice, before something bad really happens.

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// posted by dannoynted1 @ 3:24 AM 0 comments links to this post
Tuesday, May 01, 2007
In fact, the search of a residence without a judicially authorized warrant is presumptively unreasonable.
Send this document to a colleague Close This Window


















IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. PD-1633-05





ERNEST M. GUTIERREZ, Appellant


v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRTEENTH COURT OF APPEALS

NUECES COUNTY

Price, J., delivered the opinion of the Court in which Keller, P.J., and Meyers, Keasler, hervey, Holcomb and Cochran joined. Johnson, J., concurred in the result. Womack, J., filed a dissenting opinion.

O P I N I O N


We granted review in this case to examine whether the Thirteenth Court of Appeals erred in deciding that a police officer's warrantless intrusion into the appellant's home was allowable under the theory of exigent circumstances and probable cause. We conclude the court of appeals did err in its analysis. However, we affirm the judgment of the court of appeals on grounds that the police entry and search was justified by the appellant's consent.

THE FACTS AND PROCEDURAL POSTURE

On March 7, 2002, Detective Douglas Rush of the Corpus Christi Police Department was informed by a detective in Plano that a laptop computer had been stolen. (1) The Plano detective informed Rush that the computer was equipped with an anti-theft program which, when activated, would provide the address and phone number of the location where the computer was last used to access the internet. The Plano detective relayed to Rush that the computer had been used at 3129 Eisenhower in Corpus Christi the previous night.

On this information, Rush and Detective Felix Gonzalez proceeded to the Eisenhower address, which is the appellant's home. Prior to the detectives' arrival, the appellant was smoking marijuana inside his house. When the officers arrived at the address, (2) the appellant heard car doors close, saw the approaching officers out of his window, put out his marijuana cigarette and met the detectives on his porch, closing his front door behind him. Rush asked the appellant about the stolen computer. The appellant initially denied having the computer, but recanted and then admitted the computer was inside his house. (3) While the conversation between Rush and the appellant was taking place, Gonzalez smelled marijuana and observed that the appellant had bloodshot eyes and was very nervous.

The appellant told the officers he would go into the house and bring the computer out to the officers. Rush explained that he could not let the appellant go into the house alone, as a matter of officer safety and police policy. Rush filled out a consent to search form on the appellant's porch, and explained the form to the appellant. (4) The detective asked the appellant if he and Gonzalez could enter the home. The appellant agreed, opened his door, and reentered his home. Though the consent form was still unsigned, the detectives followed the appellant into his home. (5) After the appellant and the detectives entered the threshold of the house, the appellant signed the consent to search form.

Once inside, the appellant retrieved the computer and gave it to Rush. Both detectives noticed the odor of burnt marijuana and a marijuana cigarette in plain view on a table in the living room. The detectives continued a cursory visual search and found cash, a police scanner, and several plastic baggies. The detectives called for assistance from narcotics officers. Upon their arrival, the narcotics officers conducted a thorough warrantless search of the appellant's house. This search resulted in the discovery of cocaine, cash, a pistol and ammunition, digital scales, and other drug paraphernalia. Subsequently, the appellant gave two statements regarding his possession of marijuana, cocaine, and the computer.

The appellant was indicted for possession with the intent to deliver 400 grams or more of cocaine. He filed a pretrial motion to suppress the evidence, and the trial court held a hearing on the motion. At the hearing, the appellant argued that consent was not freely and voluntarily given and all evidence subsequently found in the appellant's home was the fruit of the poisonous tree. After listening to the testimony of several witnesses, including the appellant, the trial court denied the motion. At trial, the legality of the search, specifically whether the appellant gave valid consent, was again litigated. The issue was submitted to the jury, and the jury ultimately convicted the appellant.

On appeal, the appellant alleged the consent obtained by the detectives, both prior to and after entry, was not voluntarily given. The State refuted the appellant's contention that consent was not voluntarily obtained, and further argued that, under a theory of probable cause and exigent circumstances, the warrantless entry into the appellant's home and the ensuing search did not violate the protections guaranteed by the Fourth Amendment. In a memorandum opinion, the court of appeals adopted the State's latter position, holding that, "[w]ithout determining appellant's arguments regarding the voluntariness of his consent, we conclude the police had ample probable cause and exigent circumstances to enter the home." (6) We granted the appellant's petition for discretionary review to examine the issue of whether the warrantless intrusion by the police into his home was justified by the existence of probable cause coupled with exigent circumstances.

ANALYSIS

The Fourth Amendment grants individuals "the right . . . to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (7) In determining the reasonableness of a search or seizure, the actions of police are judged by balancing the individual's privacy interest against the Government's interest in law enforcement. (8) The balancing test is utilized to ensure that an individual's Fourth Amendment rights are not subjected to "arbitrary invasions at the unfettered discretion of officers in the field." (9)

There is a strong preference for searches to be administered pursuant to a warrant. (10) In fact, the search of a residence without a judicially authorized warrant is presumptively unreasonable. (11) However, this does not mean all searches must necessarily be conducted under the authority of a warrant. For example, if police have probable cause coupled with an exigent circumstance, or they have obtained voluntary consent, or they conduct a search incident to a lawful arrest, the Fourth Amendment will tolerate a warrantless search. (12) Yet, the warrant requirement is not lightly set aside, and the State shoulders the burden to prove that an exception to the warrant requirement applies. (13)

To validate a warrantless search based on exigent circumstances, the State must satisfy a two-step process. (14) First, there must be probable cause to enter or search a specific location. (15) In the context of warrantless searches, probable cause exists "when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality . . . or evidence of a crime will be found." (16) Second, an exigency that requires an immediate entry to a particular place without a warrant must exist. (17) We have identified three categories of exigent circumstances that justify a warrantless intrusion by police officers: 1) providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance; 2) protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous; and 3) preventing the destruction of evidence or contraband. (18) If the State does not adequately establish both probable cause and exigent circumstances, then a warrantless entry will not withstand judicial scrutiny. (19)

Here, the court of appeals found that probable cause and an exigent circumstance were both present when the police confronted the appellant on his porch. In finding sufficient probable cause, the court of appeals noted that the officers were aware that the appellant had possession of the stolen computer and marijuana, that he initially lied to them about his possession of the laptop, and that he had bloodshot eyes and was increasingly nervous. (20) The court of appeals then observed:

Where police have evidence of mari[j]uana and stolen property in a home, we cannot conclude they are required to stand by and allow that person to enter the home alone . . . . A reasonable police officer could believe that appellant was attempting to destroy the mari[j]uana or the computer or both, or even flee from the officers or engage in some action that might threaten officer safety. (21)


We agree with this observation, insofar as it goes. Assuming the police indeed had probable cause, the exigency of the situation called for a measured police response to maintain the status quo. We disagree, however, that the exigency perceived by the court of appeals was such as reasonably to authorize a full-blown search of the appellant's home. The detectives' response of conducting a warrantless search of the entire home far exceeded the scope of the particular exigent circumstance they faced. When confronted with an urgency that requires immediate police action and does not allow for the procurement of a warrant, law enforcement is authorized to take reasonable steps to secure the status quo. But this exception to the warrant requirement does not grant police the unfettered discretion to take any course of action, however disproportionate it may be to the perceived exigency. (22)

Because we reject the court of appeals's reliance upon exigent circumstances, we must next address the issue of consent. An exception to the warrant requirement, consent is valid when it is voluntarily given. (23) The validity of a consensual search is a question of fact, and the State bears the burden to prove by clear and convincing evidence that consent was obtained voluntarily. (24) This burden includes proving that consent was not the result of duress or coercion. (25) To determine whether this burden is met, we examine the totality of the circumstances. (26)

In the case before us, the issue of consent was hotly contested at both the pretrial suppression hearing and the trial on the merits. The appellant and the State presented diametrically opposed versions of the search of the appellant's residence. When there is contradictory evidence and witness credibility is at issue, a longstanding standard of review guides our analysis.

In reviewing a trial court's ruling on a motion to suppress, we review the evidence in the light most favorable to the trial court's ruling. (27) When the trial court fails to make explicit findings of fact, we imply fact findings that support the trial court's ruling so long as the evidence supports these implied findings. (28) Generally, implied findings would be limited to the record produced at the suppression hearing. (29) However, when the parties subsequently re-litigate the suppression issue at the trial on the merits, we consider all evidence, from both the pre-trial hearing and the trial, in our review of the trial court's determination. (30)

Construed in the light most favorable to the trial court's ruling, the testimony shows that the appellant, after his initial lie, was cooperative with the detectives. On the porch, Rush explained to the appellant that he could not allow the appellant to reenter his home alone. Rush then filled out a consent form and explained the form to the appellant. It is true that the evidence indisputably establishes that the consent form was not signed until the detectives were already inside the appellant's home. But the detectives testified that they entered initially with oral consent from the appellant. Although the appellant disputed their account, (31) we presume that the trial court resolved this dispute against him.

The consent form that the appellant signed, if in fact voluntary, unquestionably authorized a complete search of the premises. (32) If the appellant's testimony is credited, the appellant apparently signed the consent form only after the detectives threatened to take away his property and his family. (33) Implicit in the trial court's resolution of this issue, however, is that it found the detectives' account the more reliable. Crediting that account, we find that the evidence shows that the consent form was signed voluntarily. The appellant was cooperative, and aside from his initial lie to the detectives, he answered their questions willingly and courteously. The exchange was neither confrontational nor provocative. When asked, the appellant agreed to let the detectives enter his home. Discounting the appellant's own testimony, the evidence does not suggest his will was overborne at any point with threats. According to the detectives, his consent was free of the taint of duress or coercion, and he voluntarily, of his own free will, consented to the police entry and search. Reviewing the evidence, thus, in the light most favorable to the trial court's ruling, we hold that the State satisfied its burden of proving, by clear and convincing evidence, that the appellant's consent was obtained voluntarily.

CONCLUSION

We hold that the actions of law enforcement in searching the appellant's home without a search warrant were not justified under the exigent circumstances exception to the Fourth Amendment. The police were not faced with an exigent circumstance that necessitated a full-blown search of the home. By responding disproportionately to the scope of the exigent circumstances, the detectives needlessly tipped the delicate balance between government and individual in favor of the government.

However, the police officers' conduct is justified under another exception: consent. The appellant voluntarily consented to the police entry and search of his home. All evidence found inside the premises was lawfully obtained under this exception to the warrant requirement. Accordingly, we affirm the judgment of the court of appeals.

Delivered: April 25, 2007

Publish




1. We present the factual background in the light most favorable to the trial court's ruling.

2. Detectives Rush and Gonzalez were dressed in plain clothes, but their badges were displayed. The appellant noticed their badges and testified at the pretrial hearing that he was aware the two individuals were police officers.

3. The appellant claimed he purchased the laptop from a third party. He was not ultimately charged for any offense relating to the stolen computer.

4. The Consent to Search form authorized a complete search of the appellant's home.

5. The appellant described a vastly different version of the events that transpired after he admitted to possessing the computer. According to the appellant, he asked the detectives whether they would leave if he went inside and retrieved the computer. The detectives agreed. The appellant then entered his home and attempted to shut his front door to prevent marijuana smoke from escaping outside. As he tried to close his door, Rush stuck his foot into the doorway. Rush then forced open the door, and he and Gonzalez burst into the house. The appellant grabbed the computer, handed it over to Rush, and asked the detectives to leave. The detectives responded that they would not leave, and Rush stated that he needed the appellant to sign a Consent to Search form. The appellant did not think he needed to sign the consent form because he believed he fully cooperated by retrieving the computer.


Also, during this time, the appellant's wife and daughter emerged from the back of house into the living room where the appellant and the detectives were. Gonzalez told the appellant that he was going to call Child Protective Services(CPS) to come and pick up the appellant's daughter. The detectives threatened to seize his property, take his wife to jail, and take his daughter to CPS if he did not sign the consent form. The appellant agreed to sign the form if they would allow his mother-in-law to come pick up his daughter and wife. The detectives allowed the daughter to leave with the appellant's mother-in-law, but his wife stayed. The appellant then signed the consent form. By this time the detectives had discovered a bag of marijuana and a bag of money, in addition to the plainly visible marijuana cigarette the appellant had smoked prior to the detectives' arrival.

6.
Gutierrez v. State, No. 13-04-186-CR, 2005 Tex. App. LEXIS 6949, at *3 (Tex. App.--Corpus Christi Aug. 25, 2005) (not designated for publication).

7. U.S. Const. amend. IV.

8.
Schenekl v. State, 30 S.W.3d 412, 413 (Tex. Crim. App. 2000) (citing Delaware v. Prouse, 440 U.S. 648, 654 (1979)).

9.
Schenekl, 30 S.W.3d at 413.

10.
United States v. Ventresca, 380 U.S. 102, 106 (1965); Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002). See also Illinois v. McArthur, 531 U.S. 326, 338 (2001) (Souter, J., concurring) ("[A] search with a warrant has a stronger claim to justification on later, judicial review than a search without one.").

11.

Payton v. New York, 445 U.S. 573, 586 (1980).

12.

McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).

13.

United States v. Robinson, 414 U.S. 218, 243 (1973); see also McGee, 105 S.W.3d at 615.

14.
Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006).

15.
Id.

16.
Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005).

17.
Parker, 206 S.W.3d at 597.

18.
McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991).

19.
Parker, 206 S.W.3d at 597.

20.
Gutierrez, 2005 Tex. App. LEXIS 6949, at *4.

21.
Id. at *5.

22.
See Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) (declaring "warrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment")

23.
Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App. 2006); Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000); Ohio v. Robinette, 519 U.S. 33, 40 (1996).

24.
See, e.g., Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003) (stating consent is a question of fact); Robinette, 519 U.S. at 40 (concluding that consent is a question of fact); Harrison, 205 S.W.3d at 552 (stating that clear and convincing evidence is the burden of proof for voluntariness of consent in Texas); Reasor, 12 S.W.3d at 818 (articulating the State's burden of proof).

25.
Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000); Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991); Schneckloth v. Bustamonte, 412 U.S. 218, 227-28 (1972).

26.
Harrison, 205 S.W.3d at 552; Reasor, 12 S.W.3d at 818; Robinette, 519 U.S. at 40.

27.
State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).

28.
Kelly, 204 S.W.3d at 818-19; Ross, 32 S.W.3d at 855; Carmouche, 10 S.W.3d at 328. But see State v. Cullen, 195 S.W.3d 696, 698-700 (Tex. Crim. App. 2006) (holding that when the losing side at a suppression hearing requests findings of fact and conclusions of law, the trial court is required to make such findings). The appellant did not request findings from the trial court.

29.
See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).

30.
Id. ("Where the State raises the issue at trial either without objection or with subsequent participation in the inquiry by the defense, the defendant has made an election to re-open the evidence, and consideration of the relevant trial testimony is appropriate in our review.")

31.
See note 5, ante.

32. The text of the Consent to Search form reads:


I, Ernest M. Gutierrez, having been informed by the hereafter named Texas Peace Officer that I have a Constitutional right to be free from having him or any other officer make a warrantless search of the hereafter mentioned place under my control and a constitutional right to refuse to give him or any other officer consent to make a search of that kind and those rights are guaranteed by both the Texas and Federal Constitutions, do hereby authorize


[Detective Douglas Rush]

Texas Peace Officer


and any officers working with him to conduct a complete search of the following place located in Nueces County, Texas, namely:


3129 Eisenhower

Corpus Christi

Nueces Co., TX


and to seize and take from there any item of personal property they may believe to constitute evidence in a criminal proceeding.


I have given this consent of my own free will and accord and without being subjected to any compulsion, threats, promises, or persuasion of any kind.


I know that any items of personal property seized by the above named officer or other officers with him and taken by them from such place can and will be used against me in a criminal proceeding.


(Italics represent handwritten portions on the consent form.)

33.
See note 5, ante.

Labels: consent, lies, warrant

// posted by dannoynted1 @ 12:04 AM 0 comments links to this post
Tuesday, March 20, 2007
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// posted by dannoynted1 @ 3:19 AM 0 comments links to this post
Tuesday, March 13, 2007
is this a crime or a fine??????//////
Carlos E. Zamora, M.D., DAB No. 1104 (1989)

DEPARTMENT OF HEALTH AND HUMAN SERVICES

DEPARTMENTAL APPEALS BOARD


In the Case of
Carlos E. Zamora, M.D.,
Petitioner
vs.
The Inspector General

Date: September 25, 1989
Appellate Docket No. 89-100
Decision No. 1104

FINAL DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
DECISION

The Petitioner, Dr. Carlos E. Zamora, appealed the decision of
Administrative Law Judge (ALJ) Steven T. Kessel affirming the
determination of the Inspector General (the I.G.) to exclude the
Petitioner from participating in the Medicare program (Title XVIII of
the Social Security Act, (Act)) for five years and to direct that he be
excluded from participating in State health care programs (including
Medicaid, Title XIX of the Act) for the same length of time.

Criminal proceedings were instituted against the Petitioner in a Texas
state court based on his alleged submission of false Medicaid claims.
The petitioner pled nolo contendere to the charges against him and was
placed on probation. After successfully completing his probation, the
Petitioner was allowed to withdraw his plea and the charges against him
were dismissed. Consequently, under Texas law, no conviction existed
under those circumstances. However, the I.G. found that, under the
applicable federal statute, the Petitioner had been convicted of a
criminal offense and excluded him from participation in Medicare.

Before Judge Kessel, the Petitioner relied on state law to argue that
since he had not been convicted of a criminal offense, there was no
basis for his exclusion from the Medicare program. Judge Kessel
rejected the Petitioner's argument and sustained the exclusion. On
appeal to this Board, the Petitioner relied on his arguments before the
ALJ as well as those made in the Petitioner's motion for a preliminary
injunction to enjoin his suspension from Medicare. See Zamora v. Bowen,
Civil Action No. A-88-CA-987 (W.D. Texas 1988); I.G. Exhibit (Ex.) D.
Additionally, the Petitioner raised a new argument in which he alleged
that the I.G.'s decision to exclude him was contrary to the applicable
program regulations. Petitioner's Brief (Br.), pp. 1-2.

Based on the following analysis, we conclude that the ALJ's decision to
exclude Dr. Zamora was correct. Accordingly, we affirm Judge Kessel's
decision in its entirety.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Judge Kessel made the following findings and conclusions:

1. Petitioner is a physician who has practiced in Texas.

2. In 1988, the State of Texas indicted Petitioner for
tampering with a governmental record for submitting false
Medicaid claims.

3. On May 18, 1988, Petitioner entered a nolo contendere plea
in Texas state court to a misdemeanor offense of tampering with
a government[al] record. In accepting the plea, the Court found
that the evidence substantiated the Petitioner's guilt of
tampering with a governmental record.

4. The Court also found that the ends of justice and the best
interests of both society and the Petitioner would be served by
deferring further proceedings without entering an adjudication
of guilt at that time, and by placing the Petitioner on
probation.

5. On November 2, 1988, an order was entered in Texas state
court, pursuant to Art. 42.12, Sec. 7 of the Texas Code of
Criminal Procedure, modifying Petitioner's period of probation
to the time served from May 18, 1988, discharging Petitioner
from probation, withdrawing Petitioner's nolo contendere plea,
and dismissing the prosecution against him.

6. On October 28, 1988, the I.G. advised Petitioner that he was
excluding Petitioner from participating in the Medicare program,
and was directing that Petitioner be excluded from participating
in State health care programs, for five years. The exclusions
were based on the I.G.'s determination that Petitioner had been
convicted of a criminal offense related to the delivery of an
item or service under the Medicaid program.

7. Petitioner's nolo contendere plea in Texas state court
constitutes a "conviction" within the meaning of 42 U.S.C.
1320a-7(i), notwithstanding the provisions of Article 42.12 of
the Texas Code of Criminal Procedure, or the terms of the
November 2, 1988 Order entered in Texas state court in
Petitioner's case.

8. The actions taken by the I.G., excluding Petitioner from
participating in the Medicare program and directing his
exclusion from participating in State health care programs, were
mandated by 42 U.S.C. 1320a-7(a)(1).

Decision No. C-74, pp. 4-5 (citations to that record omitted).

PROCEDURAL BACKGROUND

During its February 1988 term, the Grand Jury for Hays County, Texas,
indicted the Petitioner for tampering with a governmental record, by
submitting false Medicaid claims. On May 18, 1988 the petitioner
entered a plea of nolo contendere to this charge in the 22nd Judicial
District Court of Hays County. That Court found that the evidence
before it substantiated Dr. Zamora's guilt and accepted the plea.
However, the Court deferred adjudication and placed Dr. Zamora on
probation. See State of Texas v. Carlos Zamora, No. CR 88-74; I.G. Ex.
A. On November 2, 1988 the Court granted the Petitioner's motion for
termination of probation (reduced to time served), dismissed the charges
against Dr. Zamora, and allowed him to withdraw his plea. I.G. Ex. B.

On October 28, 1988 the I.G. notified the Petitioner that, due to his
program-related conviction, he would be suspended from participation in
Medicare on November 17, 1988 pursuant to subsection 1128(a) of the Act.
On November 16, the Petitioner unsuccessfully sought to enjoin the I.G.
from excluding the Petitioner from Medicare. See Zamora v. Bowen,
supra.

The Petitioner then timely requested a hearing as to the exclusion
before an ALJ. The basis of that appeal was that since no judgment of
conviction was entered by the state court, then, under Texas law, the
Petitioner had not been convicted. Accordingly, there was no basis for
his exclusion from Medicare. On March 30, 1989, the ALJ issued his
decision in which he found that the Petitioner's nolo contendere plea
was a "conviction" as defined by the Act, regardless of how that plea
was viewed by the Texas court.

The Petitioner took specific exception "to Findings of Fact and/or
Conclusions of Law Number 7 and 8" (set out above), arguing that the
ALJ's interpretation of the federal statutes and regulations relating to
exclusion from the Medicaid and Medicare programs was erroneous.
Further, the Petitioner generally contended that those findings and
conclusions represented an erroneous application of the federal statutes
and regulations to the facts of this case. Petitioner Br., p. 4.

Analysis

1. The ALJ's decision to exclude Dr. Zamora was fully supported by
the law and was, therefore, correct.

The Petitioner's argument that, since the nolo contendere plea was
vacated by a Texas Court, he had not been "convicted" for purposes of
subsection 1128(a), ignores the plain language of the federal statute
and its underlying legislative history. There is simply no question
that under the circumstances presented here, the Petitioner cannot avoid
the exclusion. This point was driven home emphatically, both by Judge
Kessel's decision and by Judge James R. Nowlin in U.S. District Court
proceedings denying the Petitioner's Motion for a preliminary
injunction. See I.G. Ex. D.

Subsection 1128(i) of the Act defines "conviction" for purposes of
subsection 1128(a). In relevant part, that section provides that a
person or entity is considered to have been convicted of a criminal
offense--

* * *

(3) when a plea of guilty or nolo contendere by the individual
or entity has been accepted by a Federal, State or local court;
or

(4) when the individual or entity has entered into
participation in a . . . deferred adjudication . . . program
where judgment of conviction has been withheld.

Although the statutory language is clear, the corresponding legislative
history emphatically affirms that Congress intended to include a plea of
nolo contendere within the scope of the term "conviction", even though
under state law and practice no judgment of conviction is ever entered.
The Congressional committee charged with drafting the 1986 amendments to
the statute stated--

The principal criminal dispositions to which the exclusion
remedy [currently] does not apply are the "first offender" or
"deferred adjudication" dispositions. It is the Committee's
understanding that States are increasingly opting to dispose of
criminal cases through such programs, where judgment of
conviction is withheld. The Committee is informed that State
first offender or deferred adjudication programs typically
consist of a procedure whereby an individual pleads guilty or
nolo contendere to criminal charges, but the court withholds the
actual entry of a judgment of conviction against them and
instead imposes certain conditions of probation, such as
community service or a given number of months of good behavior.
If the individual successfully complies with these terms, the
case is dismissed entirely without a judgment of conviction ever
being entered.

These criminal dispositions may well represent rational criminal
justice policy. The Committee is concerned, however, that
individuals who have entered guilty or nolo [contendere] pleas
to criminal charges of defrauding the Medicaid program are not
subject to exclusion from either Medicare or Medicaid. These
individuals have admitted that they engaged in criminal abuse
against a Federal health program and, in the view of the
Committee, they should be subject to exclusion. If the
financial integrity of Medicare and Medicaid is to be protected,
the programs must have the prerogative not to do business with
those who have pleaded to charges of criminal abuse against
them.

H.R. No. 727, 99th Cong., 2d Sess. 75, reprinted in 1986 U.S. CODE CONG.
& AD. NEWS 3607, 3665.

The committee added --

With respect to convictions that are "expunged," the Committee
intends to include all instances of conviction which are removed
from the criminal record of an individual for any reason other
than the vacating of the conviction itself, e.g., a conviction
which is vacated on appeal. Id.

Thus, it is readily apparent that Congress intended to exclude from the
Medicare program not only those individuals convicted of criminal
wrongdoing by a judge or jury, but those, such as the Petitioner, who
pleaded nolo contendere, had their pleas entered and accepted by the
court, but after serving a period of probation had the case against them
dismissed without a judgment of conviction ever being entered. Thus,
the statute focuses the I.G.'s inquiry on whether an individual (or
entity) pled guilty or nolo contendere to the criminal charges against
him, rather than allowing an individual state's ultimate disposition of
a case without entering a judgment of conviction to dictate the I.G.'s
course of action. As the ALJ pointed out, Congress determined that
parties who pled guilty (or nolo contendere) to program-related offenses
were as untrustworthy as those convicted after a trial. Decision C-74,
p. 8.

In view of the clear direction of the controlling statute, the
Petitioner's argument regarding the manner in which Texas law views
deferred adjudication is not persuasive. As the ALJ noted, the purpose
of the deferred adjudication and expungement provisions in Texas law was
to provide an individual with limited protection from further penalties
by Texas. See Decision C-74, pp. 9-10; citing Gonzalez de Lara v.
United States, 439 F.2d 1316 (5th Cir. 1971). Whatever its underlying
purpose, the state law cannot reasonably be read as altering an
individual's status under federal law.

Based on the foregoing analysis we affirm Judge Kessel's Findings and
Conclusions Numbers 7 and 8 to which the Petitioner had taken exception.

2. The Petitioner alleged that the I.G.'s exclusion of Dr. Zamora
was contrary to the applicable implementing regulations.

The Petitioner noted that in 1987 section 1128 of the Act was amended to
define the term "conviction." The Petitioner then cited 42 C.F.R.
1001.136 which provides that the I.G. "will reinstate a suspended party
whose conviction has been reversed or vacated." The Petitioner asserted
that, since the regulation had not been repealed or amended to reflect
the statutory definition, the I.G. was bound to reinstate Dr. Zamora
after the court vacated his conviction.

The I.G. asserted that since the Petitioner's argument was one which
could have and should have been raised before the ALJ, the Board should
not consider it here. Alternatively, the I.G. contended that the
Petitioner's argument is without merit. The I.G. noted (and we have
pointed out elsewhere in this decision) that the legislative history of
the statute clearly contemplated that a vacated conviction is one that
is overturned or vacated on appeal. The I.G. indicated that acceptance
of the Petitioner's plea of nolo contendere was based on the Court's
belief that the Petitioner had committed the charged offense. The
conviction was vacated on the Court's determination that the defendant
had satisfactorily fulfilled the conditions of his probation. The I.G.
distinguished this situation from a court's finding that an adjudication
of a defendant's guilt was in error so that it should be rendered void;
in that case, there would not be a "conviction" under the statutory
definition. Thus, the I.G. argued, dismissal of proceedings against the
Petitioner after probation cannot be considered a disposition on appeal.
Rather, only a reversal by an appellate court would require the I.G. to
reinstate an individual. I.G. Br., pp. 22-24.

The Appellate Division Guidelines provide in relevant part --

III. (c) . . . The Panel will not consider issues not raised
in the appeal, nor issues which could have been presented to the
ALJ but were not.

As we note in section III.(b) of the Guidelines, the standard which we
employ in reviewing a disputed factual issue is whether the ALJ's
decision is supported by substantial evidence in the record. The
standard of review which we use regarding a disputed issue of law is
whether the ALJ's decision is erroneous. Our process was not meant to
be one of de novo review. See 42 C.F.R. 498.80 - 498.95.

Clearly, the Petitioner's argument as to whether the I.G. followed the
regulation at 42 C.F.R. 1001.136 should have been raised before the ALJ.
Since this argument cannot be raised at this stage in the process, we do
not consider whether the Petitioner could avoid the statutory exclusion.
In any event, the I.G. is correct that the regulation does not apply.

Conclusion

Based on the foregoing, we affirm the five-year exclusion imposed on the
Petitioner.


_____________________________ Cecilia Sparks
Ford

_____________________________ Theodore J. Roumel
U.S. Public Health Service
_____________________________ Alexander G. Teitz
Presiding Board

// posted by dannoynted1 @ 4:52 AM 0 comments links to this post
Sunday, February 11, 2007
Although there is no bright-line rule defining conduct violative
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Jacobson v. Garaas, 2002 ND 181, 652 N.W.2d 918

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Filed Nov. 15, 2002
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IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2002 ND 181

In the Matter of Disciplinary Action Against Jonathan T. Garaas, a Member of the Bar of the State of North Dakota

Paul W. Jacobson, Disciplinary Counsel, Petitioner
v.
Jonathan T. Garaas, Respondent

No. 20020103

Jonathan T. Garaas, Petitioner
v.
Disciplinary Board of the Supreme Court of the State of North Dakota, Respondent

No. 20020113

Petitions for disciplinary review.
REPRIMANDED.
Per Curiam.
Paul W. Jacobson, P.O. Box 2297, Bismarck, N.D. 58502-2297, for petitioner.
Ronald H. McLean (argued) and Timothy G. Richard (on brief), Serkland Law Firm, P.O. Box 6017, Fargo, N.D. 58108-6017, for respondent.

In re Garaas
Nos. 20020103 & 20020113
Per Curiam.

[¶1] Jonathan T. Garaas and Disciplinary Counsel have both petitioned for review of a hearing panel's report and order of reprimand, which found Garaas had violated the North Dakota Rules of Professional Conduct and ordered that Garaas be publicly reprimanded and pay costs of the disciplinary proceeding. We conclude Garaas has violated N.D.R. Prof. Conduct 3.5(a), 3.5(b), and 8.4(e), and we order that he be publicly reprimanded and pay the costs of the disciplinary proceedings in the amount of $7,312.42.

I

[¶2] Garaas has represented TAG Investments in lengthy and contentious litigation with Matrix Properties Corporation over a disputed option to purchase real estate. That litigation has spawned numerous appeals. See Matrix Properties Corp. v. JCG Investments, L.L.C., 2002 ND 99, 647 N.W.2d 706; Matrix Properties Corp. v. TAG Investments, 2002 ND 86, 644 N.W.2d 601; Matrix Properties Corp. v. TAG Investments, 2001 ND 128, 636 N.W.2d 674; Matrix Properties Corp. v. TAG Investments, 2000 ND 213, 622 N.W.2d 432; Matrix Properties Corp. v. TAG Investments, 2000 ND 88, 609 N.W.2d 737. This disciplinary proceeding arose out of Garaas's conduct at post-judgment proceedings in the Matrix litigation occurring in November 2000 and January 2001.

[¶3] At a November 7, 2000, hearing on Matrix's motion to compel transfer of the real estate, Garaas made repeated assertions that opposing counsel was making false representations of fact and had lied to the court. Garaas at one point stated:

Your Honor, I cannot let it go by one more time because Mr. Spaeth just lied to you one more time. . . . That representation by Mr. Spaeth is an absolute falsehood and he can't get away with it anymore. . . . And we will never accept Mr. Spaeth's false representation in violation of the Canons and in violation of every concept of due process that I know.

[¶4] At status conference on January 2, 2001, Garaas argued the court lacked jurisdiction in the matter because there was an appeal pending in this Court. The trial judge asked Garaas if his client would sign deeds conveying the disputed property if ordered to do so by the court at a court-supervised closing scheduled for January 5, 2001. In responding to the court's question, Garaas suggested that the trial judge was placing himself "at risk":

There is a lot of things that are going to have to be resolved, and I guess frankly I have a question in my mind as to whether or not the Court wants to enter into a course of action that places the trial court judge and the State of North Dakota at risk. . . .

So when you ask me a question as to whether or not we are going to sign a deed, there are so many things that still have yet to be resolved that why would the Court want to put this Court and the State of North Dakota at risk when we are guaranteed to have another lawsuit, guaranteed to have another trial to determine whether or not there has been damages or a quiet title action and establish what the record is for this property.

[¶5] On January 5, 2001, the court held a "Court Overseen Closing" to convey the disputed property. At the outset of that proceeding, the trial court stated it was acting pursuant to this Court's December 12, 2000, opinion in Matrix Properties, 2000 ND 213, 622 N.W.2d 432, in which we summarily affirmed an earlier post-judgment order and directed the trial court "to order specific performance requiring TAG and Grettum to convey the subject property upon tender by Matrix of the purchase price set in the 1996 option agreement." Garaas again argued the trial court lacked jurisdiction to order conveyance of the property, and asserted this Court had falsely represented the issues in the prior appeal:

The first issue was that the North Dakota Supreme Court has wrongfully identified the issue on appeal. Actually they made a false representation of what the issue was being appealed.

[¶6] At the January 5 hearing Garaas was allowed to argue at length, challenging jurisdiction of the trial court and whether Matrix had complied with the terms of the option. The court ultimately determined Matrix was prepared to tender payment of the purchase price and indicated it was TAG's "last chance" to execute deeds conveying the property or it would be judicially conveyed. The court then asked Garaas and his client, "Do you wish to comply with the order of the Court to convey this property?" After Garaas again reiterated his argument that Matrix had failed to comply with the option and the option had expired, the following colloquy occurred between Garaas and the court:

THE COURT: The Defendant -- the Defendant's counsel [Garaas] in the presence of the Court has informed the Court that they'll not comply with the Court's order. Proceed.

MR. GARAAS: Which Court order are you talking about, Your Honor?

THE COURT: The order to convey it's [sic] property.

MR. GARAAS: Which one was that, Your Honor?

THE COURT: The one they just made.

MR. GARAAS: At this point in time?

THE COURT: Yes.

MR GARAAS: On what legal basis, Your Honor?

THE COURT: Enough. Sit. Enough.

MR. GARAAS: On what legal basis? I only ask that this Court identify on what legal basis it acts, because my client has a right to know. My client has a right to due process of law, Your Honor.

THE COURT: Proceed.

MR. GARAAS: You will not answer my question, Your Honor?

THE COURT: Mr. Garaas, I've already put on the record that we're proceeding pursuant to the Supreme Court's directive of December 12th.

MR. GARAAS: And how does the court get around the fact that it isn't a final Supreme Court order and the mandate has not been returned to you and jurisdiction still is at the Supreme Court, Your Honor? How can this Court act in derogation of it's [sic] duties to honor the fact that jurisdiction is now at the Supreme Court level not back here. This Court can't act, Your Honor, on the basis of the December 12, 19 -- of the year 2000 decision of the Supreme Court. How can the Court act when it doesn't have jurisdiction based upon that order, Your Honor? My client would like to know.

THE COURT: The Court's been directed by the Supreme Court to proceed. The Supreme Court directs the District Court what to do. I am proceeding under that directive.

MR. GARAAS: Is there a directive that's different than the December 12, 2000, order, Your Honor? Has there been direct communication between the Supreme Court and this Court that is not of record and not reported on December 12th. Because there is no such directive other than the December 12th and that's not a final order. Is there a directive from the Supreme Court to this Court to proceed today that is not placed of record, Your Honor? Have you had telephone conversations with any member of the Supreme Court?

THE COURT: Mr. Garaas, of course not. But this now is getting to be ridiculous. You've tried these arguments now in front of eight different judges, five in the Supreme Court, Judge Erickson, this Court, Judge Webb. It's over now so we're gonna proceed. Go ahead.

MR. GARAAS: Has there been communications with any representative of the Supreme Court of North Dakota?

THE COURT: Sit down now, Mr. Garaas. Proceed.

MR. GARAAS: May I -- my client and I would like to know, Your Honor.

THE COURT: Mr. Garaas, this is the last time now before I ask you to be removed from the Court. We're gonna proceed with the hearing. Your partner will have to sit in your place. But this is beyond any appropriate measure of conduct for an attorney.

MR. GARAAS: I merely wanted to know what jurisdiction the Court was exercising, Your Honor.

THE COURT: Proceed.

[¶7] The court ultimately ordered judicial conveyance of the property. At the conclusion of the January 5 hearing, the trial court stated:

The Court's repeatedly heard arguments as to deficiencies in the Plaintiff's attempt to close this matter but these matters have been adjudicated or have no merit. The Defendants' arguments from the Court's perspective are for the purposes of delay. . . .

. . . .

This has been a case that's involved a lot of patience I guess on all parties involved. The Court's been disappointed in some of the conduct exhibited here with the way other officers of the Court have been treated, the way this Court and the Supreme Court has been referred to in these proceedings as doing or considering anything inappropriate.

[¶8] At the disciplinary hearing, the trial judge characterized Garaas's behavior as "threatening," "defiant," and "obstructionist," and stated "I didn't view him as attempting to help the Court resolve the matter on a legal basis." When asked about Garaas's comment that the judge might be putting himself "at risk," the judge testified he perceived it "as a threat to sue me personally" and "viewed it as an attempt to stop or delay the process of the Court's attempt to enforce the judgment."

[¶9] A petition for discipline was served charging Garaas with violations of N.D.R. Prof. Conduct 3.5(a), 3.5(b), 4.4, and 8.4(e), and N.D.R. Lawyer Discipl. 1.2(A)(8). The hearing panel concluded Garaas's "at risk" comments and the lengthy colloquy with the trial court during the January 5 hearing violated the disciplinary rules. The hearing panel further concluded Garaas's statement that Mr. Spaeth had lied did not constitute a breach of N.D.R. Prof. Conduct 4.4, and that Garaas's statement that this Court had made a false representation, while improper, had not been pleaded as a basis for discipline. Taking into consideration substantial mitigating circumstances, the hearing panel ordered that Garaas be publicly reprimanded and that he pay the costs of the disciplinary proceedings in the amount of $7,312.42. Both Garaas and Disciplinary Counsel petitioned for review of the hearing panel's report and order of reprimand. We granted the petitions for review.

[¶10] The hearing panel had jurisdiction under N.D.R. Lawyer Discipl. 3.1(E). Garaas and Disciplinary Counsel timely filed petitions for review under N.D.R. Lawyer Discipl. 3.1(F)(1). This Court has jurisdiction under N.D.R. Lawyer Discipl. 3.1(F)(1).

II

[¶11] We review disciplinary proceedings de novo on the record. In re Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 126; In re Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. We accord due weight to the findings and conclusions of the hearing panel, but we do not act as a mere rubber stamp. Edwardson, at ¶ 9; In re Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240.

[¶12] Rule 3.1(F)(1), N.D.R. Lawyer Discipl., requires the petition for review of a hearing panel's order of reprimand to contain "a clear statement of the reasons petitioner believes the panel's decision is arbitrary, capricious, or unreasonable." That language is relevant only to our initial determination whether to grant the petition for review. If the petition is granted, and briefing and oral argument are ordered under N.D.R. Lawyer Discipl. 3.1(F)(1), we employ our traditional de novo review in determining whether discipline is warranted and the appropriate sanctions to be assessed. See Toth v. Disciplinary Board, 1997 ND 75, ¶¶ 10-11, 562 N.W.2d 744 (the "arbitrary, capricious, or unreasonable" standard under N.D.R. Lawyer Discipl. 3.1(D)(8) governs only the initial determination whether to grant leave to appeal from an informal disposition, and this Court will review the substantive evidence and the merits de novo on the record).

[¶13] Disciplinary Counsel bears the burden of proving each alleged violation of the disciplinary rules by clear and convincing evidence. Edwardson, 2002 ND 106, ¶ 9, 647 N.W.2d 23; Crary, 2002 ND 9, ¶ 7, 638 N.W.2d 23. Each disciplinary case must be considered on its own facts to decide what discipline is warranted. Edwardson, at ¶ 9; Swanson, 2002 ND 6, ¶ 6, 638 N.W.2d 240.

III

[¶14] Disciplinary Counsel argues the hearing panel erred in concluding that Garaas's statements about this Court making false representations "were not part of the petition for discipline."

[¶15] The hearing panel did not explain the basis for its conclusion these statements were not part of the petition for discipline. The petition for discipline quoted Garaas's statements that this Court had "wrongfully identified the issue on appeal" and had "made a false representation of what the issue was being appealed." The petition alleged Garaas's conduct violated N.D.R. Prof. Conduct 8.4(e), which provides it is professional misconduct to engage in conduct that is a basis for revocation or suspension of a lawyer's certificate of admission, and N.D.C.C. § 27-13-01(1), which provides that an attorney shall maintain respect for courts of justice and judicial officers.

[¶16] Although there is no dispute that the petition alleges that Garaas made the statements about this Court, Garaas contends that the petition failed to specifically detail the statutes and rule that would make his conduct sanctionable. Garaas claims the pleading is defective because it fails to specifically enumerate N.D.C.C. § 27-14-02(3), which is a necessary middle step between Rule 8.4(e) and N.D.C.C. § 27-13-01(1).

[¶17] In order to place Garaas's argument in context, a brief overview of the interplay between the rule and statutes is helpful. Rule 8.4(e) provides that it is professional misconduct for a lawyer to "engage in other conduct that is enumerated in the North Dakota Century Code as a basis for revocation or suspension of a lawyer's certificate of admission." Section 27-14-02(3), N.D.C.C., provides that a lawyer's certificate may be revoked or suspended if he willfully violates any of the duties of an attorney or counselor at law. Section 27-13-01(1), N.D.C.C., enumerates the duties of attorneys, and provides that every lawyer and counselor at law shall "[m]aintain respect for courts of justice and judicial officers." Thus, an attorney may be sanctioned for failing to maintain respect for the court.

[¶18] Garaas contends the petition failed to properly plead a violation based upon Garaas's statements because it did not specifically refer to N.D.C.C. § 27-14-02(3). Our rules for pleading in disciplinary proceedings are not so strict and arcane. Rule 3.1(E)(1), N.D.R. Lawyer Discipl., provides that the petition must be "sufficiently clear and specific to inform the lawyer of the alleged misconduct." In addition, N.D.R. Lawyer Discipl. 3.5(B) provides that, except as otherwise provided and insofar as appropriate, the North Dakota Rules of Civil Procedure apply in disciplinary proceedings. See In re Howe, 2001 ND 7, ¶ 7, 621 N.W.2d 361. Under the civil rules, a pleading is sufficient if it contains (1) a short, plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for the relief the pleader seeks. N.D.R.Civ.P. 8(a); Kaler v. Kraemer, 1998 ND 56, ¶ 7, 574 N.W.2d 588; In re Estate of Hill, 492 N.W.2d 288, 296 (N.D. 1992).

[¶19] Both N.D.R. Lawyer Discipl. 3.1(E)(1) and N.D.R.Civ.P. 8(a) adopt notice pleading, where the purpose is to place the party on notice as to the nature of the pleader's claim, and pleadings that indicate generally the type of claim that is involved are sufficient. See Estate of Hill, 492 N.W.2d at 296; Jablonsky v. Klemm, 377 N.W.2d 560, 565 (N.D. 1985). Pleadings are to be liberally construed to do substantial justice. See N.D.R.Civ.P. 8(f); Kaler, 1998 ND 56, ¶ 7, 574 N.W.2d 588; Estate of Hill, at 296. Under these liberal pleading rules, a pleading need not specifically allege every element of the claim. Kaler, at ¶ 7; Jablonsky, at 565.

[¶20] The petition for discipline in this case unambiguously placed Garaas on notice of the nature of the "claim" against him. The specific facts were alleged, including quotation of the exact statements alleged to have violated the rules. The petition further specified that Garaas's conduct violated N.D.C.C. § 27-13-01(1) and N.D.R. Prof. Conduct 8.4(e). Any doubt whether violation of a duty of an attorney under N.D.C.C. § 27-13-01 was a sanctionable offense is dispelled by the Comment to N.D.R. Prof. Conduct 8.4, which specifically enumerates N.D.C.C. § 27-13-01 as one of the statutes providing the basis for revocation or suspension of a lawyer's certificate of admission, and thus for sanctions under the rule. Furthermore, this Court has explicitly stated that failure to maintain respect for the court under N.D.C.C. § 27-13-01(1) will provide the basis for sanctions under N.D.R. Prof. Conduct 8.4(e). See In re Gronneberg, 2001 ND 158, ¶ 12, 634 N.W.2d 491.

[¶21] We conclude the petition adequately placed Garaas on notice of the nature of the allegations against him and satisfied the requirements of N.D.R. Lawyer Discipl. 3.1(E)(1) and N.D.R.Civ.P. 8(a).

IV

[¶22] There is no real factual dispute about Garaas's conduct. All of the alleged misconduct consisted of statements made in open court, and Garaas does not dispute the accuracy of the transcripts of what he said. The dispositive issue is whether Garaas's conduct constituted ethical violations. Garaas contends that his conduct during the hearings did not violate the disciplinary rules, but was merely zealous representation of his client.

[¶23] Garaas argues that his conduct, while perhaps at times impolite, was merely zealous representation of his client. "[A] lawyer is not always protected by following the client's specific directions." In re Boulger, 2001 ND 210, ¶ 27, 637 N.W.2d 710 (Sandstrom, J., concurring). Not every lawyer excess is justified by the mantra of zealous representation.

[¶24] The Comment to N.D.R. Prof. Conduct 3.5 explains:

The lawyer's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the lawyer's right to speak on behalf of litigants. . . . A lawyer can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

Similarly, the Supreme Court of Minnesota has stated:

Respondent asserts he has a right, indeed an obligation, to represent his clients vigorously, aggressively, and zealously. To be vigorous, however, does not mean to be disruptively argumentative; to be aggressive is not a license to ignore the rules of evidence and decorum; and to be zealous is not to be uncivil.

In re Williams, 414 N.W.2d 394, 397 (Minn. 1987).

[¶25] There is a line of demarcation between zealous representation of a client and unethical conduct.

V

[¶26] Garaas argues the statements he made are protected under the First Amendment and he cannot be sanctioned for exercising his right to free speech. Relying upon Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), Garaas argues "an attorney may not be disciplined based solely on his/her speech unless such speech becomes so extreme as to become prejudicial to the administration of justice."

[¶27] Garaas has misread Gentile. While the Court concluded that a lawyer's out-of-court speech could be the basis for disciplinary sanctions if it creates a "substantial likelihood of material prejudice" in a pending case, see id. at 1074-75, the Court noted that a lawyer's free speech rights in a courtroom are even more limited:

It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal.

Id. at 1071.

[¶28] The First Amendment does not preclude sanctioning a lawyer for intemperate speech during a courtroom proceeding. Addressing Gentile in a disciplinary proceeding, the Supreme Court of Missouri concluded:

An attorney's free speech rights do not authorize unnecessary resistance to an adverse ruling . . . . Once a judge rules, a zealous advocate complies, then challenges the ruling on appeal; the advocate has no free-speech right to reargue the issue, resist the ruling, or insult the judge.

In re Coe, 903 S.W.2d 916, 917 (Mo. 1995).

[¶29] The United States Court of Appeals for the First Circuit, addressing a lawyer's claim of free speech rights in the courtroom, noted:

A courthouse—and, especially, a courtroom—is a nonpublic forum. A courtroom's very function is to provide a locus in which civil and criminal disputes can be adjudicated. Within this staid environment, the presiding judge is charged with the responsibility of maintaining proper order and decorum. In carrying out this responsibility, the judge must ensure "that [the] courthouse is a place in which rational reflection and disinterested judgment will not be disrupted."

Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (citations omitted) (quoting Ryan v. County of DuPage, 45 F.3d 1090, 1095 (7th Cir. 1995)).

[¶30] A lawyer's right to exercise free speech does not permit a lawyer appearing in a judicial proceeding in open court to call opposing counsel a liar, to threaten a judge with personal liability if he rules a certain way, to accuse an appellate court of false misrepresentation, or to engage in a lengthy, disruptive, belligerent, and disrespectful exchange with the court. We conclude that sanctioning Garaas for his statements during the post-judgment proceedings does not violate his right to free speech.

VI

A

[¶31] At the November 7, 2000, hearing, Garaas accused opposing counsel of lying to the court. Disciplinary Counsel argues this conduct violated N.D.R. Prof. Conduct 3.5(b) and 4.4.

[¶32] Rule 4.4, N.D.R. Prof. Conduct, requires that, "[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass or burden a third person." Rule 3.5(b), N.D.R. Prof. Conduct, states that a lawyer "shall not . . . engage in conduct intended to disrupt a tribunal." The commentary to Mod. R. Prof. Conduct 3.5(c), which is identical to N.D.R.Prof. Conduct 3.5(b), indicates that, "[a]lthough there is no bright-line rule defining conduct violative of Rule 3.5(c), disruptive conduct is commonly evaluated in light of the totality of the circumstances." American Bar Association Center for Professional Responsibility, Annotated Model Rules of Professional Conduct 343 (3d ed. 1996).

[¶33] Garaas's conduct in accusing opposing counsel of lying to the court was reprehensible. See Johnson v. Johnson, 544 N.W.2d 519, 522 (N.D. 1996). Viewing this conduct in light of the totality of the circumstances, however, we do not conclude there was a violation of N.D.R. Prof. Conduct 3.5(b) or 4.4, and Disciplinary Counsel has not argued the conduct violated other provisions.

B

[¶34] At the January 2, 2001, status conference, Garaas warned the trial judge that he would be placing himself "at risk" if he continued with the proceedings and ordered Garaas's client to sign the deeds. Garaas's statement was a clear threat to sue the judge personally. At the disciplinary hearing, the trial judge testified he perceived Garaas's statements "as a threat to sue me personally" and "viewed it as an attempt to stop or delay the process of the Court's attempt to enforce the judgment." Rule 3.5(a), N.D.R. Prof. Conduct, states that a lawyer shall not "seek to influence a judge . . . by means prohibited by law." A judge must be free to determine cases based upon the evidence and applicable law, without threats of potential personal liability. See N.D. Code Jud. Conduct Canon 3(B)(2). Garaas's threat that the judge was placing himself "at risk" violated N.D.R. Prof. Conduct 3.5(a).

C

[¶35] At the January 5, 2001, hearing, Garaas stated that this Court had "made a false representation of what the issue was" in an earlier appeal. Section 27-13-01(1), N.D.C.C., provides that a lawyer must "[m]aintain respect for courts of justice." As previously discussed, a violation of a lawyer's duty under N.D.C.C. § 27-13-01(1) is sanctionable under N.D.R. Prof. Conduct 8.4(e). While a lawyer is certainly free to register his disagreement with a court's ruling, he must do so without showing disrespect to the court. Garaas's statement that this Court made a "false representation" carries a connotation of intentional wrongful conduct. We conclude Garaas's statement crossed the line beyond criticism to disrespectful assertion of wrongdoing by the Court, and constitutes a violation of N.D.R. Prof. Conduct 8.4(e).

D

[¶36] During the January 5 hearing, Garaas also engaged in the lengthy colloquy with the court in which Garaas repeatedly questioned the court on what basis it was proceeding and accused the court of having ex parte contacts with the Supreme Court. Garaas's conduct can be characterized as disruptive, belligerent, and disrespectful. Rule 3.5(b), N.D.R. Prof. Conduct, provides a lawyer shall not "engage in conduct intended to disrupt a tribunal." Under N.D.C.C. § 27-13-01(1) and N.D.R. Prof. Conduct 8.4(e), a lawyer is also prohibited from engaging in conduct that fails to maintain proper respect for the court. Garaas's conduct was disruptive, belligerent, and disrespectful to the court and violated N.D.R. Prof. Conduct 3.5(b) and 8.4(e).

VII

[¶37] Civility is not too much to expect in a civilized society's alternative to brute force, stealth, and deception. In the final analysis, we will not allow this lawyer to drag to a new low the baseline of acceptable courtroom conduct. Garaas's conduct went beyond acceptable zealous representation and constituted violations of the disciplinary rules.

[¶38] We have determined Garaas violated various disciplinary rules by his conduct at the post-judgment proceedings. The hearing panel ordered that Garaas be publicly reprimanded and that he pay the costs of the disciplinary proceedings. The hearing panel found substantial mitigating factors on Garaas's behalf.

[¶39] We have considered the nature of Garaas's conduct, the multiple violations, Garaas's prior disciplinary record, and the substantial mitigating factors. We conclude that under the circumstances of this case, a public reprimand and payment of costs are appropriate sanctions.

[¶40] We order that Garaas be publicly reprimanded for violating N.D.R. Prof. Conduct 3.5(a), 3.5(b), and 8.4(e). We further order that Garaas pay the costs of the disciplinary proceedings in the amount of $7,312.42.

[¶41] Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
William A. Neumann
Mary Muehlen Maring
James H. O'Keefe, S.J.

[¶42] The Honorable James H. O'Keefe, Surrogate Judge, sitting in place of Kapsner, J., disqualified.

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