Only Results Matter

RifleCartridges.jpgEach biker shooting at other bikers without justification could be arrested for murder or capital murder. It is capital murder in the state of Texas to unlawfully kill two people in the same criminal episode. However, none of these shooters appear to have been identified in the media. It has also been reported that the police were shooting at people they believed to be wrongfully shooting others, further complicating the scenario. Police and citizens have the right to use deadly force to defend third persons where reasonable, just like any biker present who is in reasonable fear for his life has the right to use deadly force against another to defend himself.

Additionally, following the gunfire, the police would have the right to do a protective sweep of the area. A “protective sweep” is a “quick and limited search of the premises” “conducted to protect the safety of police officers or others.” Protective sweeps are generally conducted incident to an arrest, but the absence of an arrest does not preclude a protective sweep, even in a defendant’s home. For the sweep to be valid, the police must not enter a premises illegally, and their presence must be for valid law enforcement purposes. A legitimate protective sweep must be supported “‘by a reasonable, articulable suspicion … that the area to be swept harbors an individual posing a danger to those on the scene,” and may be no more than a “cursory inspection of those spaces where a person may be found.” A police officer may sweep a premises only if he possesses an objectively reasonable belief, based on specific and articulable facts, that a person in that area poses a danger to that police officer or to other people in the area. Finally, the sweep must “last[ ] no longer than is reasonably necessary to dispel the reasonable suspicion of danger.”

swat-1-585835-m.jpgLast week, all the news circled once again around a Waco, Texas law enforcement situation. Twin Peaks restaurant was apparently hosting a “biker” day, and several motorcycle clubs were in town for a meeting of a council of clubs. One Dallas lawyer said the meeting revolved around legislative issues dealing with motorcycles. However, the local police were suspicious because some groups are labeled as Outlaw Motorcycle Gangs by Texas law enforcement, and police thought the situation was ripe for explosion. One motorcycle club reportedly showed up uninvited, and a fight broke out in the parking lot. We don’t know what exactly happened, but when the shooting stopped, nine bikers were dead. Police then arrested approximately 170 bikers alleging probable cause that they conspired to commit capital murder. A judge has held each on $1 million bonds, which normally requires raising at least $100,000 in cash or other security.

Probable cause for arrest is a low standard, and is what officers must establish to make roadside arrest or to obtain a search warrant for a house or make a warrantless search of an automobile or other property. Stated most simply, probable cause is some reliable evidence to believe that a crime has been committed, and that a specific person committed it. Probable cause must be individual to each person arrested. The big question is, “how did police have individualized probable cause for each biker arrested in Waco?”

statue-of-liberty-4-1420903-m.jpgHowever, Texas’ public lewdness statute proscribes a wide range of conduct, including the consensual touching of breasts outside the clothing in public. Sec. 21.01. defines: (1) “Deviate sexual intercourse” means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object. (2) “Sexual contact” means, except as provided by Section 21.11, any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person. (3) “Sexual intercourse” means any penetration of the female sex organ by the male sex organ.

The Fifth Circuit noted the Texas’ Attorney General decision in the Matter of Silva-Trevino, whereby Texas’ highest lawyer opined that even indecency with a child is not a per se a crime of moral turpitude, because the law proscribes any sexual contact with a child even if the actor reasonably believes the child to be 17 or older. The court then distinguished a BIA decision relying on California’s indecent exposure statute, noting that the Texas statute does not require conduct to actually be “lewd” despite its title, and that the California statute required an actor to director the victim’s attention to his genitals.

The case was remanded to determine the specific criminal acts Mr. Cisneros was convicted of performing, and for further action consistent with the opinion. Warning: do not consider this case to be an open invitation to sneak into our country and contact the anus of a waterfowl with your mouth.

passport-2-807486-s.jpgSalvador Cisneros came to the United States to realize the American dream, and part of his dream might have ranged from fondling breasts in public to joining the mile high club. Having been discovered in the United States without permission to be here, he applied for a “cancellation of removal” under the Immigration and Nationality Act. Due to his record of being convicted of public lewdness under 21.07 of the Texas Penal Code in 2006, the immigration judge denied his petition categorically, stating that public lewdness was per se a crime involving moral turpitude,and therefore makes one subject to deportation.

Texas Penal Code 21.07 states: (a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his: (1) act of sexual intercourse; (2) act of deviate sexual intercourse; (3) act of sexual contact; or (4) act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl. (b) An offense under this section is a Class A misdemeanor.

Thus, the immigration judge states it was a crime of moral turpitude to be convicted in any manner under this section. However, the Fifth Circuit reversed this decision by noting that the Board of Immigration Appeals’s definition of a crime of moral turpitude is conduct that “is inherently vile, base or depraved” as well as contrary to societal standards.

syringe-1336409-m.jpgKudos to the people of Maryland for finally putting an end to state sanctioned homicide. All life is precious, including the lives of those who may not “deserve” to keep living. But, an interesting thing happened on the way to humanity. What is Maryland to do with its “inventory” of formerly suitable gurney candidates? A recent Wall Street Journal article notes that the state is giving a permanent stay-of-execution to the condemned, a welcome Christmas present. It notes that only 35 people were executed in America in 2014, and only seven states joined in the historical passtime. A tip of the hat to outgoing governor Martin O’Malley, who said that executing Maryland’s final four death row inmates “does not serve the public good of the people of Maryland.”

police-on-the-scene-1172422-s.jpgA 17 year old in Tarrant County was arrested for tweeting a picture of picture of an airsoft rifle aimed at a marked Fort Worth police vehicle and “Should I do it? They Don’t Care For a Black Male Anyways.” Police justified their arrest, despite the rifle being an airsoft, under the Texas terroristic threat law, penal code 22.07 which states: (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to: (1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies; (2) place any person in fear of imminent serious bodily injury; (3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place; (4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service; (5) place the public or a substantial group of the public in fear of serious bodily injury; or (6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.

Here, Mr. Toliver will have a great defense that he did not make a threat against any actual peace officer. The State’s best argument will be that he threatened violence to property to cause a reaction by an emergency organization. It will be an interesting case to follow.

And, when your client makes incriminating statements of whatever nature to your competency expert, you have the ability to decide whether presenting that expert is worth bringing up these statements. They are privileged as long as you do not call your expert or disclose his report. You don’t have to even disclose to the State that you have had an expert who reviewed your client for insanity. MOVE EX PARTE. You are allowed to. You don’t get to do any of this with competency evaluations. If the expert finds your client to be incompetent, you can move for a competency evaluation which you know your client will fail. In that case, demand to be present when the evaluator speaks to your client to help him get through the interview without further incriminating himself. You have a right to be present, and the evaluator will honor that right.

You have read over 1500 words about representing the mentally ill, but without any mention of the insanity defense thus far. I believe most juries like the insanity defense about as much as they like suppression charges. They are “technicalities.” But, if you have nothing but an insanity case to present, by all means present it and request every applicable jury charge. If you truly have a not guilty by reason of insanity, sometimes the state will AGREE to such a finding before the Court because your client is then shipped to the State hospital for up to the maximum range of punishment unless two doctors certify that he is safe to be on the street.

Remember, the State gets to have their expert interview your client if you present an insanity defense and an expert who has interviewed your client. Dangerous grounds. However, in the right case it is the way to go. But, remember that mental illness can also be a ground to negate intent without an insanity defense. There was a recent case where a client was on capital trial for shooting police officers who he thought were Muslim terrorist invaders, and it was error for the court to not let him put on expert testimony that he believed this to be true, and was acting in self defense due to his insanity. Thus, he was not “intentionally” shooting at police officers. Very rare case, but something to remember.

I only ask for competency evaluations now when I believe there is little chance of my client making an incriminating statement in the evaluation. This is more often than not, but I am a lot more protective now. Why? Because, if you have grounds to request a competency expert, you might also have grounds to request an insanity expert. Mental health is the overriding reason we see to request a competency evaluation. Your client or investigation discloses to you that he has been diagnosed with a serious mental illness (bipolar, schizophrenia), then you almost ALWAYS have to ask for a competency evaluation in felony court. The stakes are too high and the risk too great that your client might need treatment before standing trial. But, bipolar and schizophrenic people say some really harsh or threatening things sometimes. A client charged with a 3g offense who also discloses that they are bipolar or schizophrenic presents a HUGE risk of saying harmful or threatening things to the evaluator about their case or the court process. Disclosure of these statements might help a jury decide to go a lot higher on 2-20 or 5/15/25-life than if your client had not had an evaluation.

What is the answer to this problem? Ask for an insanity expert in a mental illness case. If your discussion with your client coupled with their family and/or medical records show that your client does or likely should have a diagnosable mental illness that a juror could find mitigating (or better yet, might be a defense to the crime), you have a duty to ask for an expert. Do not rely on the competency evaluator to be your insanity expert. The evaluator works for the Court. He may be a great punishment witness, but he may not. Either side can call him. But YOUR expert is YOUR expert and under Ake you are entitled to funds if your client cannot employ his own expert. And guess what, an insanity evaluator cannot evaluate your client for insanity unless your client is COMPETENT. Your insanity evaluator could or should be an expert that is also qualified to give a competency evaluation. Thus, if you have a question as to whether your client is competent but do not want him opening his mouth where the state and Court can hear (without you calling him first), an insanity expert will first evaluate the client for competency and only proceed with the insanity evaluation if they are COMPETENT. Woo hoo. Two birds, one stone. And, the price is about the same.

It is always nice to hear when your client says “I am leaving my case in God’s hands” or “I know Jesus will win my case for me.” I never know what to say in response to this, except that Jesus won’t be there to testify, and Biblical figures in general are not amenable to service of process. There is actually a case on that. In all seriousness, these types of statements and other hyper religious approaches to their case are GREAT grounds for requesting a competency evaluation. Plus, the law does not require you to believe that your client is incompetent to ask for an evaluation. It requires you to have a reason to believe that they might be incompetent to request an evaluation. Even if you believe they are competent but have questions, you might be wrong about it. You are no expert. You are an attorney. Get an expert to review your client unless you have no doubt about their competency.

Competency evaluations are dangerous tools in themselves, though. Under the law, the statements made to the evaluator are NOT privileged. That’s right. Your client is making statements that can be used against him in a court of law when he does his evaluation. 9 times out of 10, probably even more, this is okay. 95% of cases result in plea bargains, right? Well…mentally ill clients can make really ill-advised statements and can make really ill-advised trial decisions (though some turn out to make us look like geniuses when the jury sympathizes with our mentally ill client.) There are two other mental approaches to evaluations, competency or insanity: 1) a court is more likely to give a competency evaluation when requested and 2) the DA is less likely to oppose a competency evaluation because it covers both sides. Sounds great, but this practice is not about covering your ass. It is about covering your clients.

But, you MUST also speak to client’s relatives to get a better understanding. We lawyers all dread getting repeated phone calls from family members and friends of inmates asking us the same questions over and over. However, you cannot isolate yourself completely from your client’s family and put up the “ethical” shield of not discussing their case. If their family acts “crazy” towards you, that can be a big clue to look into your client’s mental health. The apple doesn’t usually fall far from the tree.

Plus, the law states clearly that you have a duty to investigate ALL aspects of your client’s case and to zealously represent them accordingly. Not investing mental health and mental retardation facts regarding your client is a HUGE way to get found ineffective down the road. If you rely on court appointments for a living, this can cut of your ability to take court appointments for a year (and longer if the judge presiding blocks you indefinitely). Do not risk your livelihood, key sources of income, and especially your client’s well being by being pressured into a quick plea when there are concerns about mental health. The state has an interest in a valid conviction, too.

Cops look for low hanging fruit. Thus, the mentally ill and intellectually borderline or deficient are often found in their trap more easily compared to high functioning men and women. High functioners are less likely to commit crimes, and more likely to avoid detection. Also, people with mental illness “self medicate” with addicting drugs so they can both “feel better” and remain in denial of their mental health status. Drugs lead to crime. A long drug history is a clue that there might be a mental illness problem. Again, NOBODY wants to be known as a person with serious mental illness. It is not only a disability but a social stigma. You have to find out for yourself and for your client’s best interest what mental illness or retardation they may have and how it can help their case. Don’t want to do this? Find another job.

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