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June 2015

Jun 22
Love0

Are “Facebook Threats” Actually Threats Under Federal Law?

By Threats

Everyone seems to use social media today. Videos of kittens and puppies and comments about people or events are common. However, some use of social media involves threats by a user against others. The U.S. Supreme Court recently considered a case regarding how far such threats can go without violating the law.

Anthony Elonis was a Facebook user. When his wife left him, Elonis began posting violent, self-composed “rap” lyrics. Elonis’s posts included references to co-workers, his wife, law enforcement, an unidentified kindergarten class and an FBI agent who visited his home. Based on these Facebook posts, the Government charged Elonis with violating a federal statute, referred to as 875(c), that criminalizes communication that contains a threat to harm another person.

Elonis’s defense attorney moved to dismiss the charges because Elonis had not actually intended to threaten anyone. The court denied the motion, holding that the Government was not required to prove that Elonis actually intended to make a threat; it must only prove that Elonis intended to make the communication. At trial, the Government called several witnesses who testified they viewed the posts as serious threats.

Elonis argued for a jury instruction requiring the Government to prove Elonis “intended to communicate a threat.” Instead, the judge instructed the jury that a true threat requires only that the defendant make a statement that a reasonable person would interpret as a serious expression of intent to harm or kill an individual.

Elonis was convicted on four counts. He appealed to the Third Circuit Court of Appeals, which affirmed the lower court’s verdict. Elonis then appealed to the Supreme Court.

No one disputed Elonis had posted the Facebook entries. The issue was whether Elonis’s posts contained any threats.

The language of 875(c) contains no provision regarding intent or state of mind. Elonis argued that every definition of threat requires an intent to harm. The Government argued that the use of “intent” language in sections surrounding 875(c) demonstrated that Congress did not intend to impose an intent standard in 875(c).

The Court rejected both arguments, concluding that 875(c) did not address the issue of “intent” or “mental state” at all. The Court looked elsewhere for an answer and found one in decisions in previous cases: Only conscious wrongdoing can be prosecuted as a crime. When a statute includes no provision regarding the required mental state, the Court said it implies only the state of mind which is required to distinguish wrongful conduct from conduct that would otherwise be innocent. For example, if an individual robs a bank, even under a good-faith belief the money was his, the “forceful taking” (stealing) does not constitute “otherwise innocent conduct.” The Court said the Government’s position in this case would punish a defendant who takes money without force, believing it to be his.

The court characterized the Government’s position as a standard of negligence, which asks what a reasonable person would do in the situation. The Court said a negligence standard had been rejected in criminal statutes, stating “what [Elonis] thinks does matter.” On that basis, the Court overturned Elonis’s conviction.

In a separate opinion, Justices Alito and Thomas took issue with the Court holding that a negligence standard was insufficient while not determining what standard would be sufficient. Judge Alito argued for a recklessness standard (acting in conscious disregard of the risk). Justice Thomas chastised the majority for rejecting the opinion of nine out of eleven Circuit Courts of Appeals and leaving nothing in its place. Justice Thomas did commend the majority for not imposing an intent-to-threaten requirement but believed the Court should have gone further and adopted the negligence or general intent standard put forward by the Government.

Elonis v. U.S. raises more questions than it answers. Clearly, something more than making a threatening statement with knowledge of what it says is required to violate federal law. But how much more? Was Justice Alito correct that making the statement with no consideration of its effect on the recipient is enough? Or was Elonis right that an individual must affirmatively intend the communication as a threat for it to be illegal? Setting aside moral or ethical concerns, until this question is answered, social media users should be cautious of making statements threatening other individuals, serious or not.

Jun 17
Love1

The Confrontation Clause and Testimony From a Supervising DNA Analyst

By Confrontation Clause

As Fort Worth criminal defense attorneys, we often encounter confrontation issues during trial. The Confrontation Clause of the Sixth Amendment gives a defendant the right to confront witnesses against him. This provision prevents admission of a “testimonial” statement–a formal statement similar to trial testimony–unless the person who made the statement can be cross-examined or is unavailable but was previously cross-examined (in a deposition, for example). In the absence of cross-examination, a criminal defense attorney in Fort Worth would object to admission of the statement as evidence.

In Paredes v. State, the Court of Criminal Appeals considered how the Confrontation Clause applies to DNA testimony based on computer-generated data obtained through batch DNA testing. During a robbery, two victims were shot and killed. Jovany Paredes asked Jessica Perez to wash the shirt he was wearing during the robbery. Instead, Perez gave the shirt to police, who sent it to a lab for DNA testing. DNA from blood on Paredes’s shirt matched one of the victims.

At trial, Robin Freeman, the lab director, explained that DNA testing involves four analysts. The fourth analyst interprets raw data from a computer to determine whether there is a DNA match. In Paredes’s case, Freeman herself compared the DNA profile from the blood stain to Paredes’s DNA profile. Freeman testified that she did not personally observe each of the analysts performing the first three steps but that any problem in the analysis would have been obvious. Freeman testified that the ultimate opinion was hers and that she was testifying regarding her opinion.

Paredes’s defense attorney objected, arguing that he was entitled to cross-examine the other analysts. The State said those analysts just took “physical stuff,” placed it into instruments and applied chemicals. Freeman, the State said, was the one who did the interpretation that was presented to the jury. The judge agreed with the State, and Paredes was convicted of capital murder.

The Court of Appeals affirmed, holding that Freeman’s testimony did not violate the Confrontation Clause. After the Court of Appeals decision, the CCA decided in Burch v. State that admission of a drug test lab report did violate the Confrontation Clause because the testifying witness stated that the report was a “surrogate” for the technician who performed the test. Paredes appealed based on Burch. The CCA vacated the Court of Appeals decision and remanded the case to consider whether Burch affected the decision in Paredes.

The Court of Appeals made the same decision the second time, distinguishing Paredes, where the lab director had knowledge of the tests used and conducted the crucial analysis, from Burch, where the testifying lab supervisor had not observed or performed any part of the drug test or its analysis. Because Paredes’ attorney had the opportunity to cross-examine the person who conducted the actual analysis that linked him to the crime, Paredes’ Confrontation Clause rights had not been violated.

Paredes appealed to the CCA again. The Court reviewed three U.S. Supreme Court cases involving forensic reports. In the first two cases, the Supreme Court had found the forensic reports inadmissible because only a “certificate of analysis” was presented as evidence and a testifying witness had not actually performed the test.

In the third case, a DNA case, an outside forensics specialist testified that the lab-created DNA profile matched the defendant’s DNA profile. The Supreme Court held that this evidence did not violate the Confrontation Clause.

Based on the Supreme Court cases (Melendez-Diaz and Bullcoming) and the decision in Burch, the CCA ruled against Paredes. The CCA relied on the fact that Freeman, the testifying witness, had actually performed the crucial analysis and had testified to her own conclusions. Further, the lab director had testified regarding the quality assurance system at the lab that would alert the director if the test were done improperly. The CCA also distinguished this case because Freeman had relied on raw, computer-generated data in reaching her conclusions, rather than relying on another analyst’s report. Because Paredes was given the opportunity to question Freeman regarding her opinion, the CCA held that his Confrontation Clause rights were not violated.

A Fort Worth criminal defense attorney whose client is facing forensic expert testimony will carefully consider Paredes. Challenges to DNA evidence may be more difficult, particularly if the testifying witness is the individual who actually translated the raw data into a conclusion regarding a DNA match. A criminal defense attorney in Fort Worth will carefully monitor the application of Paredes to cases with similar, yet different, facts.

Jun 17
Love5

Tarrant County’s “No Drop” Policy on Family Violence Cases

By Domestic Violence

How Do I Drop a Family Violence Case in Tarrant County?

In our practice as criminal defense lawyers, we often get calls about Family Violence (Assault of a Family Member) cases. These cases typically result from an argument that got out of hand, wherein one party called the police to help diffuse the situation, not knowing that the police would take someone to jail. Many times there seems to be a bit of confusion regarding whether the “victim” of the alleged assault can “drop” the case after the other person is arrested and charged with Family Violence.

In Fort Worth, the Tarrant County District Attorney’s office has a “No-Drop Policy” on Family Violence cases. The No Drop Policy basically means is that once the case is filed with the District Attorney’s office, it is NOT the alleged victim’s choice whether to drop the charges. It is entirely in the prosecutor’s discretion how to handle the case if the victim does not want to go forward.

Despite the No Drop Policy, there are things that an alleged victim can do to express his or her desire that the case not be prosecuted. This begins with the Alternatives Class offered through Safe Haven. Before the District Attorney’s office will allow an alleged victim to sign an Affidavit of Non-Prosecution, they require that the alleged victim attend this 4-hour class.

After the alleged victim attends the Alternatives Class at Safe Haven, he or she may then elect to speak with the victim coordinator at the District Attorney’s Office. In this interview, the alleged victim will be allowed to talk with the victim coordinator and tell them why they believe the case should not be prosecuted. This is also the time in which the alleged victim will sign the Affidavit of Non-Prosecution.

These steps can go a long way in achieving a favorable outcome on domestic violence cases. If you or a loved one needs help navigating these options, please call us today. We handle Family Violence cases on a daily basis and have a proven track record of good results. Some helpful numbers are contained below.

Alternatives Class at Safe Haven – (817) 536-5496

Tarrant County Victim Coordinator – (817) 884-3535


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Jun 03
Love1

Asleep in a Running Vehicle: Sufficient Evidence of “Operating” for DWI?

By DWI

Can I be Arrested for DWI for Sleeping in My Car?

One of the requirements for a DWI in Fort Worth is straightforward–the intoxicated individual must be “operating” a vehicle while intoxicated. Any DWI attorney in Fort Worth would tell you that basic requirement. The Texas Court of Criminal Appeals recently considered the question of whether an individual who is passed out in a running, yet stationary, vehicle is “operating” the vehicle for DWI purposes. In Murray v. State, the court answered in the affirmative.

Chad Murray was passed out in his running truck in the early hours of the morning. Deputy James McClanahan observed Murray’s truck with its lights on, parked partially on the shoulder of Highway 22 and partially in a driveway near a fireworks stand. Deputy McClanahan observed exhaust coming from the truck but could not see anyone inside. The Deputy approached the truck and saw Murray asleep in the driver’s seat. The truck was indeed running. The transmission was in “park,” and the radio was on high volume. Deputy McClanahan finally succeeded in waking Murray up and, after Murray’s bungled attempts failed, in obtaining Murray’s ID. The deputy reported that he immediately smelled alcohol in the truck when Murray opened the window and that Murray appeared very intoxicated. Murray failed a field sobriety test and was charged with DWI.

At trial, Murray was found guilty and sentenced to one year in jail and a $1,000 fine. The jail sentence was suspended, and Murray was placed on two years of community supervision. Murray appealed his conviction to the Seventh Court of Appeals, arguing that there was insufficient evidence at trial to prove that he was actually operating his truck and that he was, therefore, not guilty of DWI. The court of appeals agreed and reversed Murray’s conviction, holding that, although it was possible to infer from the circumstances that someone drove Murray’s truck to the location where it was found, there was no evidence as to when that occurred or whether the driver was intoxicated at the time. The Prosecuting Attorney appealed to the Court of Criminal Appeals based on the question of whether Murray could have been found guilty of DWI without direct evidence that he was operating a vehicle while intoxicated.

The CCA took exception to the lower court’s conclusion, pointing to evidence that the vehicle was running, that Murray was in the driver’s seat, that Murray was the only one in the vehicle and that he was the only person in the vicinity. The court also pointed to the fact that there were no alcoholic beverages or containers in the vicinity and that the Deputy’s conclusion that Murray was very intoxicated was reasonable; Murray even admitted to the Deputy that he had been drinking. Because Murray was intoxicated, no one else was around, and there was no alcohol in the area, the court found it reasonable for the jury to infer that Murray had driven his truck to the location on Highway 22 and had done so while intoxicated.

Justice Meyers disagreed and in a dissenting opinion argued that allowing Murray’s DWI conviction to stand was comparable to convicting someone for possession of marijuana based solely on the individual being high and smelling of marijuana. Justice Meyers believed that being passed out behind the wheel of a running vehicle is not enough to be considered “operating” the vehicle; operation of a vehicle requires some action to enable the use of the vehicle, even something as simple as turning the key in the ignition. For DWI purposes, there must be evidence that the action was taken while the individual was intoxicated. For Justice Meyers, inferring these facts from the evidence presented was a leap too big for a jury to make.

The case is instructive for anyone charged with DWI in Fort Worth. A trial jury will have wide latitude in drawing conclusions regarding whether you were operating the vehicle while intoxicated, even if an officer does not directly observe you doing so. If you find yourself in this predicament, you should consult a DWI attorney in Fort Worth. Do not assume that you will get off on a technicality. Chad Murray didn’t.