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Death Penalty

Dec 07
Love2
Cell Phone Text Message Search Love 2016

Police Must Obtain Search Warrant to See Content of Text Messages

By Search & Seizure

Cell Phone Text Message Search Love 2016From call logs, to cell tower info, to sent and received text messages, many criminal investigations involve the contents of a defendant’s cell phone.  Under the Stored Communications Act, cell phone providers can provide a users cell phone data to police during an active criminal investigation with a simple court order (like a subpoena).  But what about the actual content of text messages?  Can the police or the prosecutor get the actual content from those text messages with the same court order?

Capital Murder Conviction Gained After Judge Admits Content of Text Messages

Recently, the Texas Court of Criminal Appeals considered a capital murder (death penalty) case in which the State relied on text message evidence during trial. During the trial, the state admitted (over defense objection) the contents of text messages sent and received by the defendant. The messages established the defendant’s presence at the scene of the murder and implied his direct involvement. The state leaned on this evidence during both its opening and closing statements in the case. The defendant was convicted of capital murder and sentenced to death.

The Content of Text Messages are Not Covered by the Stored Communications Act

The appellant argued on appeal that while the Stored Communications Act allows the state to gain evidence of text messages sent and received, it does not allow the dissemination of the content of those messages. The appellant argued that the State should have obtained a search warrant backed by probable cause in order to get these records. The CCA agreed, drawing comparisons to the contents of letters sent in the mail and email stored on a server. Text message enjoy the same reasonable expectation of privacy and should be protected.

The Question in Love v. State is Whether Appellant had an Expectation of Privacy in his Service Provider’s Records

LOVE v. STATE (Tex. Crim. App – 2016), Majority Opinion

Judge Yeary penned the majority opinion in Love. The following excerpts are taken from the opinion:

Many courts have treated text messages as analogous to the content of an envelope conveyed through the United States mail…Admittedly, the analogy is not a perfect one…A letter remains in its sealed envelope until it arrives at its destination, and the telephone company does not routinely record private telephone conversations. But internet and cell phone service providers do routinely store the content of emails and text messages, even if they do not necessarily take the time to read them…[E]mpirical data seem to support the proposition that society recognizes the propriety of assigning Fourth Amendment protection to the content of text messages…All of this leads us to conclude that the content of appellant’s text messages could not be obtained without a probable cause–based warrant. Text messages are analogous to regular mail and email communications. Like regular mail and email, a text message has an “outside address ‘visible’ to the third-party carriers that transmit it to its intended location, and also a package of content that the sender presumes will be read only by the intended recipient…Consequently, the State was prohibited from compelling Metro PCS to turn over appellant’s content-based communications without first obtaining a warrant supported by probable cause.

Finding that “the probable impact of the improperly-admitted text messages was great,” the CCA then reversed the conviction and remanded the case back to the trial court for a new trial.

TAKEAWAY: Not all records can be gained so easily through a court order. Some require a probably cause warrant.  Is there a reasonable expectation of privacy in the message? It might take a new analysis as our media is changing daily, but it can be worth the fight.

Note: Presiding Judge Keller dissented. She did not believe that the appellant preserved this issue for appeal.

May 24
Love1
DNA Evidence Biological Testing

DNA Testing of Biological Evidence Under CCP 38.43

By DNA

Does a defendant charged with capital murder have an absolute right to have all of the biological evidence of the crime tested?

DNA Evidence Biological TestingTexas Code of Criminal Procedure, Section 38.43 deals with “Biological Evidence,” and outlines the rules and responsibilities for testing such evidence. In the mandamus case summary that follows, the relator (the defendant) is requesting that ALL of the biological evidence be tested, while the trial judge has ruled that only some testing is sufficient.

In Re Solis-Gonzalez (Tex. Crim. App. – Mandamus 2016)

A Triple Homicide and Hundreds of Evidence Samples

Luis Solis-Gonzalez was indicted by a grand jury for capital murder for the 2012 triple murder of his ex-wife, her daughter, and her companion. Before trial, the State moved for DNA testing of over 200 pieces of biological material that was collected at the scene. The trial court granted that the testing be done by the Texas Department of Public Safety forensics laboratory.

A few months later, after the lab had already tested a portion of the samples, the lab communicated to the trial court that testing all of the evidence would be a lengthy process, taking three years to complete. Because of such a delay, the trial court asked the defense to identify any specific articles of biological material that it wanted tested, along with reasons why that material should be tested.

At the pretrial hearing, the State asserted that testing each and every piece of the evidence was unnecessary because the testing that the lab had already completed was sufficient for trial. Solis-Gonzalez claimed that Article 38.43 of the Texas Code of Criminal Procedure created an “absolute right to have all evidence tested.” The trial court found that testing all of the biological evidence was unnecessary, as “Article 38.43 does not mandate that every piece of evidence seized by law enforcement in a capital murder case where the State is seeking the death penalty must be forensically analyzed.” Further, the trial court added, “the defense’s response [does] not legally support further delay of trial.”

Should the Trial Judge Have Ordered Tested of All Biological Evidence?

On a petition for a writ of mandamus, the CCA reviewed the case to determine whether Article 38.43 does, in fact, create an absolute right to have all biological evidence collected at a crime scene, especially when the death penalty is at stake.

Article 38.43 of the Texas Code of Criminal Procedure

Article 38.43(j) states, “if the State and the Defendant agree on which biological materials constitute biological evidence, the biological evidence shall be tested…if the State and the Defendant do not agree on which biological materials qualify as biological evidence, the State or the Defendant may request the court to hold a hearing to determine the issue.” The statute defines biological evidence as the contents of a rape kit, blood, semen, hair, saliva, skin tissue, finger nails, fingernail scrapings, bone, bodily fluids that might establish the identity of a suspect or exculpate (show the innocence of) a potential suspect.

Justice Delivered Swiftly, or Justice Delivered Meticulously?

Here, the CCA defers to the legislative policy rationale behind Article 38.43, saying, “it thus appears that the legislature granted discretion to the trial court to separate the evidentiary wheat from the chaff and prevent delay of the proceedings because of needless testing.” Like the CCA, the trial court stated the evidence submitted and analyzed was sufficient for trial in “substantial compliance with the [legislative] intent of the statute.” It appears that the intent behind the statute is to deliver justice swiftly, not meticulously by testing each and every single piece of biological evidence. Accordingly, the CCA affirmed the decision of the trial court, and denied relief to Solis-Gonzalez.

Feb 20
Love0

The Rest of the Story on a Wrongful Conviction

By Wrongful Conviction

Posted by Luke A. Williams.

I recently attended – along with prosecutors, other defense attorneys, and law enforcement officers – a continued legal education course regarding wrongful conviction. The course kicked off with the study of a case out of North Carolina of two men (19 and 15 at the time of their convictions) who were recently exonerated via DNA evidence.

The men, Henry Lee McCollum and Leon Brown, both confessed to killing an 11-year-old girl in 1983. The question that immediately floated around the room was: why would these two boys confess to a horrific murder if they didn’t actually commit the crime? It’s a fair-enough question and probably the reason the jury that eventually found them guilty of the murder sentenced both of these boys to death. But – in the spirit of Paul Harvey – the “rest of the story” explained how these confessions were coerced.

There was no physical evidence that tied McCollum and Brown to the crime. The lead that was provided to investigators came in the form of a rumor from a fellow schoolmate of the boys who cast suspicion on them because they had recently moved from New Jersey – they were outsiders. Investigators took them in for questioning. Initially, they took in Henry. After five hours of questioning with no lawyer present and with his mother weeping in the hallway, not allowed to see him, Henry told investigators a story of how he and three other boys attacked and killed the girl. He was promised that if he confessed to the crime he would be released to his mother – he was 19 years old. His “statement” was typed out by the investigators and he put his signature to it after the 5-hour interrogation. The last thing Henry said after signing the confession was, “Can I go home now?”

After Henry’s interrogation, Leon was brought in (at 2:30 a.m.). He was told that Henry had confessed and implicated Leon being involved as well. Leon was made similar promises and also told that he would be executed if he did not cooperate. After another lengthy interrogation, Henry also confessed to attacking and killing the girl.

Both men were tried and both men were sentenced to execution.

After 30 years, lawyers from the Center for Death Penalty Litigation began pressing for DNA testing of the physical evidence in the case, which included a cigarette butt found at the murder scene. The DNA was matched – but not to either McCollum or Brown. The DNA came back as a match to Roscoe Artis, a man who lived in a house yards away from the wooded area where the murder took place. Coincidentally, only a few weeks after the murder, Artis confessed to the rape and murder of another 18-year-old girl in the same town. The circumstances surrounding that murder contained striking similarities to the murder that McCollum and Brown were convicted of. Artis was implicated in a number of other murders that occurred in the same area and all under the same or similar circumstances. Based on the DNA testing and the investigation into Roscoe Artis, after 30 years in prison and on death row, McCollum and Brown were exonerated and released.

It’s a story that, as a defense attorney and former prosecutor, I’ve heard before. While not the norm and certainly not common, it’s something I know has happened. The key question though is, “does this still happen?” I was surprised when I overheard one of the members of law enforcement in the room exclaim that, “Oh, this would never happen these days.” While I certainly agree that things have changed and drastically improved since the days of McCollum and Brown, I can’t help but think that the mentality of the impossibility of this happening again is an extremely dangerous one.

I imagine if this case happened today; certainly DNA would be gathered and tested against suspects. But, what happens if there isn’t any DNA at the scene (yes, this could still happen)? What happens if false or speculative accusations or suspicions occur again? What happens if false confessions happen again? In a horrific murder case, I think its naïve for anyone in the field of criminal justice to make a blanked statement that, “this could never happen again.” It can and it will. We have a great justice system but not a perfect one – a human one.

Things have got better. Prosecutors, defense attorneys and law enforcement personnel have a heightened awareness of the possibility of a wrongful conviction. But, we all must remain vigilant and never put on blinders to the fact that it can happen again.

Feb 03
Love0

Mental Retardation and the Death Penalty

By Death Penalty

In 2002, the United States Supreme Court determined that the Eighth Amendment to the U.S. Constitution’s prohibition against cruel and unusual punishment bars the execution of mentally retarded persons. Atkins v. Virginia, 536 U.S. 304 (2002).

The Court reasoned that neither retribution nor deterrence could be achieved by executing mentally retarded persons and that, because mentally retarded persons have a reduced ability to participate in their own defense, there is an enhanced risk that they would be sentenced to death unnecessarily.  However, the Supreme Court left it to the individual states to determine which offenders fit the definition of “mental retardation,” in order to enforce this constitutional restriction.

In Ex Parte Briseno, the Texas Court of Criminal Appeals established non-mandatory guidelines to determine “that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.” 135 S.W. 3d 1 (2004).  If an offender meets the definition of mental retardation, then the guidelines are designed to consider some more subjective criteria. The definition of mental retardation that the CCA adopted was:

(1) Significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less, (2) accompanied by related limitations in adaptive functioning, (3) the onset of which occurs prior to the age of 18.

If a person meets that definition, the following guidelines were designed to help factfinders in criminal trials focus upon weighing the evidence as indicative of mental retardation or of a personality disorder:

  • Did those who knew the person best during the developmental stage – his family, friends, teachers, employers, and authorities – think he was mentally retarded at that time, and, if so, did they act in accordance with the determination?
  • Has the person formulated plans and carried them through, or is his conduct impulsive?
  • Does his conduct show leadership, or does it show that he is led around by others?
  • Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
  • Does he respond coherently, rationally, and on point to oral or written questions, or do his responses wander from subject to subject?
  • Can the person hide facts or lie effectively in his own or others’ interests?
  • Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

The CCA cautioned that these factors should not be considered in isolation, but rather in the context of the concerns expressed by the Supreme Court in the Atkins decision.

In 2012, the CCA considered a capital murder habeas case (Ex Parte Sosa) wherein the applicant alleged that he was mentally retarded at the time of the offense.  The habeas court found that the applicant established mental retardation.  The CCA cited some inconsistencies and ultimately remanded the case back to the convicting court for the judge gather more information and consider the Briseno factors in determining whether the applicant was (or is) indeed mentally retarded.

This is an interesting area of law to me.  I’ve had the occasion to dig into some literature on autism, and at first glance it would seem that some autistic indviduals (those that are higher on the spectrum) might satisfy the factors laid out by the CCA.  Of course, the Briseno and Atkins cases deal only with the death penalty and capital punishment, but as far as retribution and deterrence go, this could be good extenuation and mitigation evidence for the factfinder to consider in other cases as well.