News and Insights

Many of you have heard of the new development in the OJ Simpson case, the discovery of a knife that was found on Simpson’s property sometime around 2002 or 2003 (interesting that this is coming to light during the airing of the OJ Simpson TV drama on FX). A construction worker, who gave the knife to a former LAPD officer that was working as a security officer, reportedly uncovered the knife on or around Simpson’s property. For reasons that are unclear, the knife was just recently turned over to LAPD in early March. This is big news because the knife used in the murders of OJ’s wife, Nicole Simpson and her friend, Ron Goldman, was never found and Simpson was ultimately acquitted in 1995 for their murders. So what does this discovery mean for OJ Simpson and the murder charges that of which he was acquitted back in 1995? LAPD is testing the knife for DNA and hair, and it has been unofficially reported that no DNA exists, but if they find something, what can they do?

Can Simpson be retried for the murder of his wife and her friend?

No, he cannot be retried. Jeopardy has attached and Simpson is protected from being retried on the same offense after being acquitted. The 5th Amendment of the United State’s Constitution provides that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” In other words, a person shall not be put on trial for the same offense after receiving a not guilty verdict. This is commonly known as the protection again Double Jeopardy. Further, the Doctrine of Res Judicata (claims preclusion) bars relitigation of a claim that has been validly and finally adjudicated.

Because OJ Simpson was acquitted for the murder of his wife and her friend, this means that he is protected by the Constitution from Double Jeopardy and cannot be taken to trial for their murders again even if new "evidence" is discovered. This answer would not change even if DNA evidence came back showing a link to one of the victims. Further, under the Doctrine of Res Judicata, since there was a valid and final judgment in regards to the guilt of Simpson in these murders, the State of California is barred from reopening Simpson’s case.

Is there any way around Double Jeopardy?

The only way around double jeopardy is to be federally indicted for some other offense arising from the same events. The state and federal authorities are separate sovereigns. Here, it would not be a Double Jeopardy violation for Simpson to receive a federal indictment for violation of the victims’ civil rights, but it would be incredibly unlikely.

Takeaway: If you have already been found not guilty for an criminal charge, the 5th Amendment and Doctrine of Res Judicata protect you from being brought to trial on that same charge.

Frequently the public’s perception as to what officers can and cannot do during encounters is convoluted and even wrong. Many people are unaware of what their 4th Amendment rights actually afford them when it comes to contact with police officers. First, it’s important to know that an officer is completely free to approach whomever he wants and have a consensual encounter with someone whether or not he has a specific reason. However, an officer cannot detain you on a simple hunch, the police officer must have reasonable suspicion of criminal activity. Then comes the question of what exactly is reasonable suspicion.

What is Reasonable Suspicion?

According to Fourth Amendment law, reasonable suspicion exists when there are specific articulable facts that, when combined with rational inferences from the facts, would lead a reasonable officer to believe crime was afoot. The police officer must have more than a hunch that a crime was in progress. If a police officer detains, frisks, or searches someone without reasonable suspicion that officer has violated the 4th Amendment and evidence coming from that unlawful detention must be suppressed.

The 4th Amendment in Action - Brodnex v State of Texas (2016)

In a case just decided by the Court of Criminal Appeals of Texas, the Court overturned a conviction because it found the officer did not have reasonable suspicion to detain the defendant, thus, violating the 4th Amendment.

In Brodnex v. State, the defendant was arrested and convicted of possession of a controlled substance. The arresting officer observed Brodnex and a female walking in an area known for narcotic activity around 2 a.m.. The officer approached the two individuals, asked them their names and what they were doing. When Brodnex identified himself, the officer asked him “Didn’t you just get picked up?” and Brodnex replied “Hell no.” The Officer then searched Brodnex and found a cigar tube with crack cocaine.

The Officer’s reasons for detaining Brodnex were:

• The time of day;
• The area’s known narcotic activity, and
• His belief, based on what other officers had told him, that Brodnex was a “known criminal.”

Brodnex filed a motion to suppress challenging both the stop and search. The trial court denied the motion and the appellate court affirmed.

The CCA Overturns the Conviction for Lack of Reasonable Suspicion

The Court of Criminal Appeals of Texas held that Brodnex was illegally detained because at the time of detention, under the totality of the circumstances, the facts apparent to the officer “did not provide him with a reasonable suspicion for the detention.” Therefore, the crack cocaine should have been suppressed. The court's holding relied on the fact that the officer had simply seen Brodnex walking, not doing anything that would suggest he was engaged or about to engage in criminal activity. Additionally, the court found that the officer’s limited personal knowledge of Brodnex’s criminal history was not enough to support the belief that Brodnex was lying about not being picked up.

Know Your Rights

This case explains that the officer must have sufficient information that links the suspect to a particular crime before reasonable suspicion exists. While the time of day and high-crime area are factors that Texas courts consider, those alone are insufficient to develop reasonable suspicion. Since reasonable suspicion is based on the totality of the circumstances, it is often not completely clear as to whether a particular set of facts rises to the level of reasonable suspicion.

If you are facing criminal charges that resulted from a detention or search that might not have been supported by reasonable suspicion, any evidence found from might be able to be suppressed. Contact our criminal defense team today to discuss your case and determine whether a reasonable suspicion issue is present.

*To know your rights on the go, download our FREE Mobile App.

"The man who represents himself has a fool for a client."

Regardless of whether the decision may be unwise, a criminal defendant has the right to represent himself or herself at trial. But, as explained by the US Supreme Court in Indiana v. Edwards (554 US 164, 171), this right is not absolute. A defendant must be mentally competent to represent oneself at trial. In Logan v. State, the 2nd Court of Appeals (Fort Worth) explains “competence to stand trial is not alone the test for competence to represent oneself at trial.” Here’s what happened in Logan...

Defendant Requests to Represent Herself

Charise Logan was charged with criminal trespass for being on the UTA campus after she had been warned not to return. Ms. Logan requested to defend herself in court. The trial judge of County Criminal Court Number 1 in Tarrant County inquired as to whether Ms. Logan understood her right to an attorney. She answered that she understood, but added that she did not believe she could find an attorney who was not part of the “conspiracies against her.”

Trial Judge Orders Mental Competency Evaluation

The trial judge inquired as to whether the defendant has ever been treated for a mental illness. Ms. Logan answered that she had, but that it was 10 years ago. The trial judge then ordered a competency evaluation, which was conducted by a psychologist. The psychologist reported that the defendant had an “unspecified personality disorder,” but that she was competent to stand trial and to consult with counsel. There is plenty more about the defendant's competency exam if you read the full opinion.

The Case Proceeds to Trial | Defendant Explains the "Conspiracy"

Ms. Logan’s case proceeded to trial, with her acting as her own counsel, despite her documented mental illness. At a pretrial hearing, the defendant filed a document explaining that she had been:

hunted by a secret society and currently, a sex ring for several years of [her] life” and outlines a pattern of harassment and surveillance of her conducted by the secret society. Appellant implicates President Barack Obama and the family of former President George H.W. Bush in this conspiracy. According to the pro se document, the secret society surveilled Appellant between 2011 and 2015. Appellant alleges in the document that the secret society used witchcraft, voodoo, and blackmail to force unwilling participants to engage in activities against her. She further alleges that the conspiracy was after her because of the auditory and visual gifts bestowed upon her by God.

Because the defendant did not request and relief in her filing, the trial court did not have anything on which to rule. The court took no additional action based on this "information." The trial proceeded and a jury convicted the defendant of criminal trespass.

Appellate Issues Concerning Competency of Pro Se Defendant

On appeal to the 2nd Court of Appeals (Fort Worth), the fundamental issue was whether the trial court erred in allowing the defendant to represent her. Finding error, the appellate court held:

when determining the ability of a defendant to represent herself pro se, the trial court should take a realistic account of the particular defendant’s capacity to represent herself. A person could be capable of working with counsel at trial and thus meet the test for competency set out in Dusky v. United States (362 US 402), yet at the same time be unable to carry out the basic tasks necessary to present her own defense without the assistance of counsel.

Appeals Court Reverses the Conviction

The appellate court set aside the Ms. Logan’s conviction and remanded the case for a new trial. In so doing, Justice Dauphinot explained that “[t]he trial court deprived Appellant of counsel by accepting her waiver of counsel that was neither voluntary nor knowing. Such error is automatically reversible.” The court went further to hold that it was error for the trial court to order a mental competency evaluation without counsel being present. While issues like these are rare, we are starting to see more and more mental health cases that could turn out like this one, if the right steps are not taken.

What Should the Trial Judge Do When the Jury Returns an Unauthorized Verdict?

At the trial of Reginald Nixon for burglary of a habitation and evading arrest, the jury returned a guilty verdict and sentence of 7 years for the burglary and 9 years for the evading. However, the verdict form contained a handwritten note that read: “*To be served consecutively, not concurrently.” A consecutive sentence would mean that the two verdicts are added together to make the actual prison term 16 years. The jury had previously asked the judge whether the sentences would run concurrently and the judge refused to answer them, advising them to simply continue with their deliberations. Without an answer to their question, the jury took the matter into their own hands.

The problem with the jury’s verdict of 7 years and 9 years to run consecutively is that it is not an authorized sentence. Under Texas law, the sentences in Nixon’s case were required to run concurrently rather than consecutively. As a result, the trial judge refused to accept the sentences and reform them to run concurrently (as he was urged to do by Nixon’s counsel). Instead, the judge sent the jury back with a note advising them that the sentences cannot run consecutively. The jury soon returned with new verdicts of 16 years confinement for each offense, which the judge accepted.

Nixon appealed, again urging that the trial judge erred by failing to accept and reform the original jury verdicts. The 2nd Court of Appeals (Fort Worth) affirmed the trial court’s judgments and “reasoned that while the judge may have had the authority to reform the verdict under Article 37.10, he also had the authority to refuse the verdict and return the jury to their deliberations pursuant to this Court’s opinion in Muniz v. State [573, S.W.2d 792 (Tex. Crim. App. 1978)].”

The Texas Court of Criminal Appeals granted review and now reverses the holding of the 2nd Court of Appeals. The CCA highlighted the changes that were made in 1985 when the legislature enacted Section 37.10(b) of the Texas Code of Criminal Procedure. This change distinguished between “informal” and “unauthorized” verdicts. For unauthorized verdicts, Section 37.10(b) provides:

If the jury assesses punishment in a case and in the verdict assesses both punishment that is authorized by law for the offense and punishment that is not authorized by law for the offense, the court shall reform the verdict to show the punishment authorized by law and to omit the punishment not authorized by law.

CCA explained that the lower court’s reliance on Muniz was misplaced since Section 37.10(b) was not enacted at the time Muniz was decided. Further, the verdict form in Muniz was incomplete, unlike the verdict in this case, which was complete but contained an unauthorized portion.

The CCA concluded by holding:

Although the terms of confinement were 45 authorized punishments, the attempted cumulation was punishment unauthorized by law. Article 37.10(b)’s plain language is clear that, when the jury assesses punishment and returns a verdict assessing punishment that is both authorized and unauthorized by law, “the court shall reform the verdict to show the punishment authorized by law and to omit the punishment not authorized by law.” Accordingly, we hold that the judge erred in failing to accept the initial punishment verdicts and omit the jury’s unauthorized attempt to stack the terms of confinement.

Judge Alcala and Judge Yeary dissented.

In the age of social media it seems more and more that our identities are being fast tied to what we post, like, love, or retweet on social media. Our firm handles criminal cases on a daily basis and in the course of our work we’ve seen an increasing reliance by law enforcement and prosecutors on social media websites like Facebook, Twitter, and Instagram. More often than not, investigators are scrolling through the entirety of a person’s social media profiles scouring the information for incriminating statements, pictures or conversations. A Facebook picture or an Instagram post that one might consider innocent, humorous, or obscure could end up being a key piece of evidence used against that person in a court of law.

Here’s what you need to know about social media and the law.

Anything you post on Facebook, Twitter, and Instagram can and will be used against you.

Period. The general rule that citizens need to know is that by exposing information about yourself on social media you are essentially waiving your privacy rights. A person can’t scream at the top of their lungs in an open room the most private fact about themselves and then expect it to go unheard. The same is true about social media. By posting on sites like Facebook, Twitter,and Instagram, you are essentially consenting to whatever information you disclose to be made public.  Even if your profile is set to private, your friends could end up sharing your content. Once public, that information is now available to everyone…including the government. If you are under investigation or suspect you might be under investigation for a criminal offense, and you have social media profiles, never post anything if you think it has even a remote possibility of hurting your case.

What can be done to protect my privacy on sites like Facebook, Twitter, and Instagram?

Don’t post! The first thing you can do is to place a limit and a premium on your social media activity. Some people feel like social media websites are the perfect forum for venting frustrations, making off-color jokes or personally attacking others. If you think about what you are posting in terms of who might potentially see your post, then you should limit the things you say. Remember, anything you post will be considered public information.  If the temptation is too strong to post on social media, then you should really consider disabling your account altogether (at least while your criminal case is pending).

Can Social Media Privacy Settings be used to protect my information?

Privacy settings are the second step in preventing the government or any other unwanted viewers from obtaining your social media information. The majority of the more popular social media websites allow you to limit who can see your information and what can be seen. Putting strict limits on who and what can be seen on your Facebook, Twitter, and Instagram pages can be very effective in preventing unwanted eyes. But is it enough? For the general public, yes, it is. Further, law enforcement agents typically do not have special privileges to see information that has been set to “private” either. But, there are other ways of getting your information and viewing your profiles. Law enforcement has been known to create fake profiles with attractive pictures to entice users into accepting friend requests and allowing them to view information intended for friends only. There is nothing that legally prevents law enforcement from taking such actions.

If my Facebook, Twitter, and Instagram accounts are set to “Private,” is that enough to protect my information?

Ultimately, no. Even if a person hasn’t unwittingly accepted a friend request from an officer or agent and has limited access to their profile via privacy settings, law enforcement can still get a subpoena, court order or search warrant for your social media information.

According to their website, Facebook will only disclose records in accordance with the Stored Communications Act (“SCA”), 18 U.S.C. Sections 2701-2712 and in response to:

• A valid subpoena issued in connection with an official criminal investigation is required to compel the disclosure of basic subscriber records (defined in 18 U.S.C. Section 2703(c)(2)), which may include: name, length of service, credit card information, email address(es), and a recent login/logout IP address(es), if available.
• A court order issued under 18 U.S.C. Section 2703(d) is required to compel the disclosure of certain records or other information pertaining to the account, not including contents of communications, which may include message headers and IP addresses, in addition to the basic subscriber records identified above.
• A search warrant issued under the procedures described in the Federal Rules of Criminal Procedure or equivalent state warrant procedures upon a showing of probable cause is required to compel the disclosure of the stored contents of any account, which may include messages, photos, videos, wall posts, and location information.

So, even if your privacy settings won’t allow anyone to view your profile, law enforcement agencies may still be able to get that information by way of a subpoena, court order or search warrant.

Assume that unwanted eyes will see what you post on Twitter, Facebook, and Instagram.

If you’re under investigation for a criminal offense or charged with a criminal offense, you need to assume that unwanted eyes will see what you post on Twitter, Facebook, and Instagram. Our attorneys have handled cases involving cases where the government has used Facebook, Twitter, and Instagram postings against our clients. We don’t want that to happen to you. Call one of our attorneys and speak to us about what you can do to protect your information and ultimately your rights.

NOTE: The United States Supreme Court has confirmed that the police CANNOT search your cell phone to discover Social Media evidence, text messages, phone call, or anything else without a proper search warrant.