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Passout Blackout Alcohol Memory Sexual Assault Attorney

Passout vs. Blackout: How Alcohol Can Affect Memory (Voice for Defense Article)

By | Sex Crimes

Alcohol and Memory: An Interview with Texas Forensic Psychologist, Dr. Kelly Goodness, Ph.D

Passout Blackout Alcohol Memory Sexual AssaultAs you can probably imagine, many criminal cases involve events that occur when people are intoxicated. This can be especially true for cases involving allegations of sexual offenses. In these alcohol-fueled situations, the issue of memory can play a large part in the case. When we encounter intoxication and memory issues in sexual assault cases, we often employ the assistance of a forensic psychologist to serve as either an expert consultant or expert witness.  One of the best in her field is Dr. Kelly Goodness of Keller, Texas. Dr. Goodness is an expert in alcohol and the brain, including the difference between “pass out” and “blackout” evidence.  She is one of the most highly employed experts for alcohol-related sexual assault cases involving members of the U.S. Military. What follows is an interview that we conducted with Dr. Goodness regarding how alcohol can impact a person’s memory and how it can apply to the sexual assault context.
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Q: Dr. Goodness, How is Alcohol Related to Memory?

A: Alcohol is a potent amnestic agent. Beginning with just one or two drinks, alcohol can produce detectable memory impairments. As the dose increases, so does the potential magnitude of the memory impairments, all the way up to the total inability to recall events during a drinking episode, otherwise known as a blackout.

Q: How does alcohol disrupt memory formation?

A: There are three general processes involved in long-term memory formation, all of which can be impacted by alcohol. First, information must be perceived by one or more of the senses (sight, hearing, taste, smell, and touch) to form a sensory memory which can last a few seconds. Second, if concentrated on for more than about eight seconds, sensory memory can be transferred to short-term memory to be retained. Short-term memory can last from seconds to minutes, depending on distractions and ability to rehearse or repeat the information. Third, once some kind of association or sufficient repetition has occurred; information can be consolidated, encoded and transferred from short-term memory into long-term memory which then makes the information available for later recall.

Alcohol, affects all stages of the memory process, but the primary effect is on the transfer of information from short-term to long-term memory storage. The drinker can recall long-term memories that were established before they became intoxicated, but their ability to transfer information into long-term storage can begin to degrade with just one or two drinks. As the dose of alcohol increases, the impairment increases and can culminate in blackouts. When blackouts occur the individual can participate in complex activities and even very emotionally charged events that they later cannot remember.

Q: You mentioned blackouts. What exactly is a blackout?

A: Blackouts are periods of amnesia, caused by excessive consumption of alcohol, during which a person actively engages in behaviors, but the brain’s ability to create memories for what transpires is impaired or non-existent. This leaves holes in a person’s memory that can range from spotty recall for events of the previous night (or drinking episode) to the utter absence of memory for large portions of an evening. The person is still able to carry on conversations, engage in activities and respond to others. They just will not recall some or all of what occurred.

Q: Are there different types of blackouts that a person can experience?

A: Yes. There are En Bloc Blackouts and Fragmentary Blackouts. Blackouts are classified based on the extent of amnesia. The amnesia can be total (“en bloc”) or partial (“fragmentary”).

En Bloc blackouts are classified by the inability to later recall any memories from the intoxication period, even when prompted or given cues.

  • No matter what happens, you can never recall it.
  • The information was never recorded so recall is not possible.
  • Memory of what transpired cannot be restored through hypnosis or any other means because no memory ever truly existed.
  • It is difficult to determine the end of this type of blackout as sleep typically occurs before they end.

Think of a loved one you have known who has Alzheimer’s. They may tell you what they had for dinner and five minutes later tell you the exact same thing. They never recorded the event of initially informing you in the first place, so they tell you again. En Bloc blackouts are essentially the same phenomenon – just with a different cause.

Fragmentary blackouts are characterized by the inability to recall some events from an intoxicated period, but not all events.

  • The person may be unaware that memories are missing until reminded by others of the existence of these “gaps” in memory.
  • Cues can help them remember at least some of what happened because at least some of the information actually was recorded.
  • They may have more snapshot type recall and it may not be in sequential order.
  • Research indicates fragmentary blackouts are far more common than en bloc blackouts and likely involve alcohol-induced deficits in contextual memory.

Q: Is a blackout different from passing out?

A: Yes, they are different. Although many people refer to “passing out” as going to sleep following ingestion of alcohol, when I say “pass out” in my testimony or describing the research, I am referring to the more formal definition as used in the field of alcohol treatment, in which a pass out is a loss of consciousness due to excessive alcohol intake. By definition, blackout and pass out are mutually exclusive: a blackout is amnesia for the events of any part of a drinking episode, without loss of consciousness. A person in blackout continues to interact and perform complex activities, but has amnesia for these events. A person who is passed out is unconscious and is not having any behavioral experiences to record.

Q: Can blackout and pass out co-occur?

A: Yes. Passing out and blacking out can co-occur. Under the right conditions, a person who consumed alcohol to the point of passing out can be awakened from sleep, engage in activities and have a blackout for that time period.

Q: Can you tell if someone is having a blackout?

A: Determining whether someone is in a blackout state from their behavior alone is next-to impossible. To outside observers, the person may appear to be aware and functioning well enough. During blackouts, people can participate in events ranging from the mundane, like eating food, to the emotionally charged, like fights or serious aggression, with little or no recall. They can drive a car, have a normal conversation, or engage in sexual relations.

Even loved ones are unlikely to know. We know that the wives of alcoholics who are known to be prone to blackouts may only know their husband was blacked out when he does not recall information the next day.

Research designed to bring about blackouts shows that those who are in the midst of an En Bloc blackout can easily recall things that have occurred within the last 2 minutes, yet they cannot recall anything that occurs during the episode prior to this period.

Q: From your knowledge of the research on this topic, what causes blackouts?

A: Blackouts are caused by the selective effects of alcohol on specific brain systems and involve a breakdown in the production and utilization of proteins and neurotransmitters in the brain. Blackouts can occur from rapid consumption of alcohol, such as guzzling, chugging, or shots and are more likely with consumption of hard alcohol or the combination of hard alcohol and beer, versus beer alone.

Q: Is there a typical Blood-Alcohol Concentration (BAC) at which a blackout is likely to occur?

A: Blackout BAC’s are individual dependent, but we know the blood-alcohol level is typically very high (above 0.25) when a blackout occurs. Some recent studies indicate .28 to .30 as the median BAC at which blackout is likely to occur. Still, a person can experience a fragmentary blackout with a BAC as low as .08 and an en bloc blackout with a BAC of.14 and above. These can only be used as estimates.

Q: Is intoxication level synonymous with blackouts?

A: No. Intoxication depends not only on the blood alcohol level, but on the rate of increase and tolerance of the individual. One may have a blackout without appearing grossly impaired. One may be drunk with poor judgment and control but not blackout. This is why even eye-witnesses may be (and usually are) unaware that a person is having a blackout.

Q: Are there any known risk factors for blackouts?

A: Yes. The following are risk factors typically associated with alcohol blackouts:

  • Drinking on an empty stomach as there is less food to absorb alcohol
  • History of serious head injury
  • Heavy drinker – but to be sure – a blackout can happen with a single drinking episode and naïve drinkers are not immune
  • History of prior alcohol blackouts – past history of blackouts shows the person is vulnerable ad also can produce damage that predisposes the person to future blackouts
  • Genetic predisposition
  • Alcohol in combination with certain common drugs
  • Female

Q: Why are females more vulnerable to memory impairment when drinking?

A: Several reasons.

  • Females typically weigh less.
  • They also have less water in their bodies, which means that they cannot dilute the alcohol as well, which can result in a higher alcohol levels in the brain.
  • Females are more likely to skip meals to save calories when they drink which means there is less food in the stomach to help absorb alcohol.
  • Females are more likely to drink beverages that are higher in alcohol concentration such as wine and mixed drinks rather than beer.
  • Females have less of an enzyme in the gut that breaks down alcohol before it gets into the body. In fact, studies have shown that it takes much less alcohol for women to experience blackouts than for men.

Q: What does research indicate is the prevalence rate of blackouts?

A: Research shows that 50% of college-age drinkers experience blackouts. Further, one in four college students who drink will experience a blackout in a given year. Although blackouts commonly occur with alcoholics, blackouts also occur in 25% of social drinkers.

Q: How can we know if a blackout is real or feigned?

A: It is hard to know. However, we can look at the known risk factors I previously discussed to determine whether the person was at a legitimate risk of experiencing a blackout.

Q: How does a drinker usually know if they passed out or experienced a blackout?

A: The short answer is they often do not know – and they especially do not know for sure given holes in their memory. Passout or blackout experiences are deduced from the circumstances in which the drinker finds themselves once they rouse, or from the information they are provided by others, or a combination of both. Loosing time through passout or a blackout can be very disturbing to an individual.

Once they wake, begin to sober, or are confronted by information from their surroundings or facts alleged by others; the drinker does what we all do all the time – they try to make sense of their situation by filling in the blanks with what seems logical to them. Their efforts may lead them to inaccurate assumptions and conclusions. This can be particularly true when the drinker has personal (i.e., religious, moral, employment) reasons for being distressed by behaviors such as those involving sexual activity.

Q: Can you explain how you would distinguish between a blackout and a pass out?

A: The fact patterns must be considered. If a person is so intoxicated that they are rendered unconscious, it should take significant time to return to normal cognitive and motor functioning. On the other hand, if a drinker was able to get up, communicate generally coherently, engage in physical movement, but later could not recall doing so, a blackout is much more likely.

Q: In a sexual assault allegation, why is it significant that the complainant might have been in a blackout rather than passed out?

A: Many who have experienced a blackout presume they physically and mentally could not have initiated or participated in sexual activity since they have no memory of doing so and may conceptualize themselves as someone who would never engage in sex in that situation or perhaps even with that person. Moreover, the notion they may have engaged in sex may bring them great cognitive dissonance and angst. As such, they may jump to the conclusion that they were passed out which by definition (unconscious) would mean they could not have participated. In reality, those who are in a blackout can, and do, engage in very complex behaviors including initiating and participating in sexual activity they simply will not recall because the memory traces were not encoded. To be sure, a person in a blackout can continue to perform any number of complex behaviors including driving, making purchases, arguing, criminal activity, and importantly – initiating and engaging in sexual activity – making it sometimes vital for fact finders to understand the psychological science related to blackouts.

Q: Thank you for your time, Dr. Goodness. If someone wanted to retain you to review a sexual assault case, how would they go about doing that?

A: They can either email me at kelly.goodness@drgoodness.com or contact my office at (817) 379-4663 and we can go from there.
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As you can see, alcohol can have a significant impact not only in the decisions that a person makes, but also in the way they remember those decisions. In the sexual assault context, this is particularly important because a complaining witness may engage in (and perhaps even initiate) sexual behavior and not remember what he or she did. Without a memory of the night’s events, the complaining witness might mistakenly believe that they were “passed out” when the sexual behavior occurred and that they were taken advantage of by an opportunistic assailant, when in all reality, they were an active and willing participant. Based on their words and actions, others around them, including their sexual partner, would have no idea that the person was experiencing an en bloc or fragmentary blackout.

Thank you to Dr. Kelly Goodness for her time an expertise in preparing this article. Dr. Goodness’s contact information is provided below:

Kelly R. Goodness, Ph.D
Clinical and Forensic Psychology
121 Olive Street
Keller, Texas 76248
www.drgoodness.com
Office: (817) 379-4663

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Brandon Barnett is a criminal defense attorney with Barnett Howard & Williams PLLC in Fort Worth, Texas. He earned his J.D. from Texas Tech University School of Law and his LL.M. from George Washington University Law School. He is also a military judge in the Marine Corps Reserve and an adjunct professor at Texas A&M University Law School. He can be reached at barnett@bhwlawfirm.com.

Kelly Goodness, Ph.D. began her career as a clinical psychologist at the maximum security forensic hospital in Vernon, Texas. She entered private practice after learning lessons that could never be taught in a book and achieving recognition for her ability to identify and treat the factors that led individuals to be labeled the most dangerous and violent psychiatric patients in Texas. Dr. Goodness developed a thriving practice as a criminal litigation consultant and expert witness who feels privileged to offer her expertise in jury selection, case theory, expert testimony, and case presentation to the parties in state, federal and military cases worldwide with a special focus on homicide and sexual assault.

Juvenile Trial Adult Trial Texas

Key Differences Between Juvenile and Adult Criminal Trials in Texas

By | Criminal Defense, Juvenile

Juvenile Trial Adult Trial TexasThe juvenile justice system is a hybrid system. Juvenile proceedings are technically civil in nature, but they incorporate many elements from the criminal system. The reason for this separate system is to teach children that they will be held responsible for their actions without labeling them as criminals. The differences between adult and juvenile trials is a direct result of this difference in systems.

Terminology

One of the most noticeable distinctions between adult and juvenile trials is in terminology. Juveniles accused of crimes are called respondents, not defendants. Juries do not decide whether a respondent is guilty. Instead, they decide whether it is true or not true that he engaged in delinquent conduct.

Participants

In Tarrant County, the participants that you will see sitting in the courtroom during a juvenile trial are not the same as in an adult case. In addition to the judge, prosecutor, defense attorney, juvenile, court reporter, and jury, there are a couple other participants in juvenile cases. A parent or guardian of the respondent is required to be present during all proceedings. The Tarrant County juvenile judge also requires an intake probation officer to be present anytime the juvenile is in court.

Procedures

For the most part, the procedures in an adult trial and a juvenile trial in Tarrant County are similar. The same rules of evidence apply. A juvenile respondent has the same rights during a trial as an adult defendant has. The trials in the two systems follow the same general order, as well.

There are a few significant differences, however. First, and probably most important, is the contrast in who makes punishment decisions in the trials. In adult cases, a defendant can choose whether a judge or jury determines punishment. However, in juvenile cases, a respondent only has this choice in determinate sentence cases. In all other cases, a judge will determine the punishment, if any.

Another difference is the judge’s charge to the jury. The jury charge in a juvenile case is a civil charge with criminal language included in it. It is typically longer than a standard criminal charge in an adult case. The jury’s verdict form is also a bit different. In adult cases, the verdict form asks the jury to write guilty or not guilty. In juvenile trials, as mentioned earlier, the jury determines true or not true that the respondent engaged in delinquent conduct.

Disposition/Punishment Phase

In adult criminal trials, if a defendant is found guilty, the case moves into the punishment phase. In juvenile cases, that next phase is called the dispositional hearing. This is another area in which a juvenile trial differs from adult trials in Tarrant County.

If the jury is assessing punishment in an adult case, it generally happens almost immediately after a verdict of guilty is returned. If the defendant chooses the judge to assess punishment, the hearing is usually scheduled for a later date.

In the juvenile justice system, most of the time, the respondent does not get to choose who determines disposition. The judge will make the vast majority of these disposition decisions. This means that the dispositional hearing will usually be held a few weeks after the trial. Unlike in adult cases, a social history report on the respondent must be prepared by the intake probation officer prior to the dispositional hearing taking place. This report will be considered by the judge in assessing the appropriate disposition.

Practical Differences

The last big discrepancy between adult and juvenile cases has to do with the practical effect that these cases have on the person accused. The juvenile system emphasizes rehabilitation instead of punishment. Therefore, juvenile dispositions do not have the same long-term ramifications that adult punishments have. Typically, they are limited in length due to the age limits imposed by the system. In Tarrant County, the juvenile judge will consider probation in each case in which it is appropriate to consider.

There are a lot of differences between adult and juvenile trials. The main reason for this is because these trials are part of two separate and distinct systems. The juvenile system is a hybrid, combining parts of the civil and criminal systems into one. While there are many similarities between the two, this article highlights the main distinctions between the two.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings.

Hernandez Racial Slur Error 2016

Murder Conviction Reversed for Prosecutor’s Use of Racial Slur

By | Jury Trial, Trial Advocacy

Texas Prosecutor Uses the “N” Word During Closing Argument. Court of Appeals Reverses the Conviction.

Hernandez Racial Slur Error 2016In December of 2014, Appellant Luis Miguel Hernandez was convicted of the murder of Devin Toler, an African-American man. During the trial, Appellant claimed self-defense, arguing that Toler attacked him and that by killing him, he was defending himself from the attack. The prosecution, however, presented evidence that Appellant provoked Toler by his words, some of them racial slurs. The actual words of the alleged racial slurs were never presented to the jury in the testimony of any witness or otherwise. However, during closing argument, the prosecutor said the following:

“What were the words of provocation? I’ll tell you what the words of provocation were. [Appellant] called Devin and his family ‘niggas.’ That’s what it was.”

The defense attorney promptly objected to the prosecutor’s use of the racial slur as it was inflammatory and outside the evidence in the case. Ultimately, (after a heated bench conference) the judge sustained the objection and instructed the jury to disregard the counsel’s comment, but did not specify which counsel or what comment the jury was to disregard. The defense did not move for a mistrial. The jury returned a verdict of guilty and sentenced Appellant to 14 years in prison.

See the majority opinion in Hernandez v. State (2nd Court of Appeals – Fort Worth, 2016)

What is a Proper Jury Argument?

On appeal to the Second Court of Appeals (Fort Worth), the Appellant challenged the judge’s failure to declare a mistrial after the prosecutor’s use of the “N” word. The court explained:

Proper jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; and (4) a plea for law enforcement. Generally, error resulting from improper jury argument is subject to a harm analysis.

The appellate court held that not only were the prosecutor’s comments in using the “N” word error, but that the prosecutor’s comments constituted an “incurably prejudicial argument;” one that required a mistrial.

Is the “Incurably Prejudicial Argument” Waived if the Defendant Does Not Move for a Mistrial?

Texas courts have consistently held that to preserve error for an improper argument, the defendant must do 3 things:

  1. Make a timely and specific objection;
  2. Request and instruction to disregard if the objection is sustained; and
  3. Move for a mistrial if the instruction to disregard is granted.

Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997)

In this case, the defense satisfied 1 and 2, but did not move for a mistrial. The appellate court was then presented with the issue of whether the improper jury argument objection is waived if the defense does not move for a mistrial.  Texas precedent says the issue can be waived for failure to move for a mistrial. But the court does not find this to be wise.

“Logically, this position makes no sense. An incurably prejudicial argument requires a mistrial. If the trial court does not grant the mistrial, the court has committed error that requires setting aside the conviction and re-trying the case. Respectfully, if the argument is so prejudicial that it has deprived the defendant of a fair trial, the injury is fundamental.”

The court provides further reasoning to depart from precedent, citing the tenuous political atmosphere surrounding race relations in America at the time of the trial.

The impact of the improper statement by the prosecuting attorney must be viewed in the context of the political atmosphere at the time of trial. The trial took place in early December 2014. On February 26, 2012, George Zimmerman, whose mother was from Peru, killed Trayvon Martin. Emotional discussions of Zimmerman’s ethnicity filled news commentary. Other killings made headlines. Among them was the death of Eric Garner while he was selling loose cigarettes in New York on July 17, 2014. The officer who killed him was Daniel Pantaleo. On August 9, 2014, Michael Brown was killed in Ferguson, Missouri. On August 11, 2014, Ezell Ford was killed in Los Angeles by two police officers, one of whom was Hispanic. And on November 23, 2014, twelve-year-old Tamir Rice was killed in Cincinnati, Ohio. Additionally, the Black Lives Matter organization was formed in 2013 in response to the acquittal of George Zimmerman in his trial for the murder of Trayvon Martin and was actively involved in protests nationwide.

With that, the Second Court held that the improper jury argument was not cured (and could not have been cured) by the judge’s “perfunctory” instruction to disregard and that the error was preserved for appeal. The court then reversed the case and remanded back to the trial court.

Dissent Agrees that the Error Was Prejudicial, But Would Not Depart From Precedent

Justice Sudderth dissented. She is not willing to depart from Court of Criminal Appeals’ precedent regarding the formal requirement to move for a mistrial. She writes:

Of all of the words in modern American English usage, including the slang and the vulgar, the “n-word” is of such infamy that it is generally referenced and understood only by its first letter. And with very few exceptions, such racially charged inflammatory language has no place in jury argument.

This is certainly the case when a prosecutor, using that language to secure a conviction, goes outside of the record to introduce it. Therefore, I agree with the majority that the prosecutor’s behavior was improper. It was inexcusable. It cannot be condoned. And the trial judge committed error in permitting it. Nevertheless, because we are constrained by precedent of the court of criminal appeals requiring preservation of this type of error, I am compelled to dissent.

It will be interesting to see whether the Court of Criminal Appeals will stick to their previous precedent or take this opportunity to change the law when it comes to an “incurably prejudicial argument” involving racial slurs.

Jury Unanimity Aggregate Theft Texas

What is Jury Unanimity for Aggregate Theft Cases?

By | Jury Trial, Theft

Jury Unanimity Aggregate Theft TexasJury unanimity is required in every jury trial, whether it be felony or misdemeanor. This means that the jury must unanimously agree that the State has proven or failed to prove all elements of an offense beyond a reasonable doubt. If a jury cannot reach a unanimous verdict of guilty or not guilty, then the judge will declare a mistrial. With some offenses, however, it can be a little unclear as to what jury unanimity actually requires. This is specifically so with aggregated theft cases.

What Is Aggregate Theft?

Aggregate theft is an offense where two or more thefts were committed “pursuant to one scheme or continuing course of conduct” and the amounts combined determine the grade of the offense. Tex. Penal Code §31.09. Under Section 31.09, aggregate theft may be and often is considered as one offense. Even though it is considered one offense, each individual underlying theft act (where the amounts are aggregated) is considered an element. The Court of Criminal Appeals of Texas has held that for evidence to be sufficient the state must prove beyond a reasonable doubt that the defendant unlawfully appropriated “enough property to meet the aggregated value alleged.” The state is not required to prove each underlying appropriation. However, the Court, until recently has left one question unanswered: Does the jury have to unanimously agree on all underlying theft transactions?  Meaning, if the defendant is alleged to have committed 10 separate theft acts (pursuant to a common scheme), do the jury have to agree on each, or some, or none?

Kent v. State—What is the Jury Unanimity requirement in Aggregate Theft cases?

Until recently there had been no holding by the Court of Criminal Appeals of Texas on whether jurors are required to unanimously agree on each underlying transaction that is used to comprise an aggregated theft charge. In Kent v. State the Court finally addressed this exact question.

See the full CCA opinion in Kent..

Kent was a mortgage broker indicted for theft from four complainants in an amount exceeding $200,000. The thefts were alleged to have occurred over a period of time and pursuant to one scheme or continuing course of conduct. At trial, the defense requested a paragraph in the jury instructions that outlined each individual theft allegation and called for a unanimous verdict on each. The trial judge denied the defense request to include this paragraph.  The jury found Kent guilty of aggregate theft. On appeal, the Kent complained that the trial judge erred by refusing to include his requested paragraph in the jury instructions.  The appellate court reversed and remanded the case for a new trial, holding that the jury should have been instructed that they must unanimously agree beyond a reasonable doubt on each underlying transaction used to comprise an aggregate theft charge.

The State appealed to the Court of Criminal Appeals of Texas to determine whether this was correct. Reversing the lower courts holding, the CCA held that for an aggregated-theft case,

unanimity requires that the jurors agree that the threshold amount has been reached and that all the elements are proven for each specific instance of theft that the individual juror believes to have occurred. Every instance of theft need not be unanimously agreed upon by the jury.

In other words, it is only required that the jurors unanimously agree that two or more thefts pursuant to a common scheme, when combined, exceeded the threshold amount beyond a reasonable doubt, not that they unanimously agree on exactly which thefts were comprised to reach that amount.

Takeaway: When facing aggregated theft charges it is important to know that the jury does not have to unanimously agree that each underlying theft alleged in the indictment has been proven beyond a reasonable doubt. Bottom line, it’s the aggregated amount that matters. This is only a brief explanation of how the jury unanimity requirement plays a role in a case and if you should have any more questions contact our Fort Worth criminal defense team.

Vincent Bugliosi

Vincent Bugliosi’s Advice on Cross-Examination and Asking “Why”

By | Trial Advocacy

Renowned Trial Lawyer, Vincent Bugliosi, Explains One of His Theories About Cross-Examination

Vincent BugliosiIn 2011, I had the privilege of escorting the late Mr. Vincent Bugliosi around Marine Corps Base Camp Pendleton, as he was the guest speaker at a trial advocacy conference my office organized.  Mr. Bugliosi, 76 years old, was best known as the prosecutor that put Charles Manson away.  He was also a renowned true crime author, writing such books as Helter Skelter, And the Sea Will Tell, ‘Till Death Us Do Part, and Outrage.  He would tell you, however, that his proudest moment was his victory over Gerry Spence in the mock trial of Lee Harvey Oswald for the assassination of President John F. Kennedy.  Other than this mock trial, Gerry Spence boasts a perfect trial record.

One of the things about which Mr. Bugliosi spoke was cross-examination.  He noted that many of the best-selling books on cross-examination caution lawyers from asking a witness WHY they took a certain action.  Lawyers are warned that they should never allow a witness to explain themselves on cross.  Well, Mr. Bugliosi did not exactly agree with that maxim.  Here’s what he had to say on the subject:

Even if I do not ask “why,” the lawyer who called the witness, if alert, will do so on redirect.  The witness has then often had a court recess or perhaps overnight to think up the very best answer to the “why” question.  I would much rather force the witness to answer on cross, not giving him extra time to fabricate.

Although both lawyers can avoid asking the “why” question and, as in some other situations, “save for final argument” the implications of the witness’ testimony, by that late point in the trial the witness’ reason for his improbable act is a matter of competing speculations by the lawyers, not the court record.

The “why” question, of course, can be a dangerous one, but I feel this is so only if the lawyer hasn’t first blocked off possible and anticipated escape hatches.  Admittedly, real witnesses, unlike their fictional counterparts in novels and on the screen who cave under pressure of the first or second good question, are as doughty and elusive as all hell.  When all but trapped, and at the brink of a public, courtroom humiliation, human beings seem to secrete a type of mental adrenaline that gets their minds working extremely fast, and well.  So the witness a lawyer faces on the stand, for some curious reason, is almost inherently formidable.  But a witness can’t go somewhere when he has nowhere to go.

If I feel a witness if lying, a technique I frequently employ is to first elicit answers from him on preliminary matters (blocking off all escape hatches), answers which, when totaled up, show he would be expected to take a certain course of action.  The witness having committed himself by his answers, I then ask him what course he in fact took (which is not the course he would be expected to take), and follow this up with the “why” question.  If time after time a witness is unable to satisfactorily justify conduct which is incompatible with what would be expected of a reasonable person, the jury will usually conclude that his testimony is suspect.

Mr. Bugliosi made sure to caveat that we should never ask the “why” question unless all possible escape hatches have been blocked off.  He was truly an outstanding speaker on this and many more topics.  His true crime books are excellent and are highly recommended for all criminal trial lawyers out there.  Vincent Bugliosi passed away on June 6, 2015.

Criminal Plea Bargains in Texas

Can a Rejected Plea Bargain Offer be Revived?

By | Plea Bargain

Criminal Plea Bargains in TexasContrary to television portrayals, most criminal cases never reach trial. While it is difficult to put a number of it, I would say that 90 to 95% of criminal cases are resolved by dismissal or plea bargain. Our Fort Worth criminal defense attorneys put the interests of the client first and will always pursue a dismissal and sometimes attempt to reach a favorable plea deal with the prosecutor as an alternative to the uncertainty of trial.  But in some occasions, a trial is the only way to go. What follows is a recent case opinion from the Texas Court of Criminal Appeals regarding a plea bargain situation gone wrong.

Rodriguez v. State (Texas Court of Criminal Appeals 2015)

On advice from counsel, Israel Rodriguez rejected a ten-year sentence plea bargain. Rodriguez was convicted and received eight life sentences.

Rodriguez filed for a new trial based on ineffective assistance of counsel; he believed his attorney’s advice regarding the plea offer was wrong. Rodriguez asked that the State be required to re-offer the ten-year deal.

The judge granted a new trial and ordered the State to re-offer the deal. The judge proceeded to reject the deal.

After denying the ten-year deal, the judge informed Rodriguez he could withdraw his guilty plea and go to trial or accept a 25-year sentence. Rodriguez rejected the 25-year sentence and filed a recusal motion, arguing that the judge had demonstrated prejudice. The judge recused, and a new judge was assigned.

Rodriguez filed a motion to require the State to re-offer the ten-year deal. The new judge said the original judge’s recusal had “wiped the slate clean,” including the ten-year plea offer, but he would accept a new agreement if one were presented. The state offered a plea deal of 25 years, which Rodriguez accepted. The judge accepted the plea agreement and executed the judgments of conviction.

Rodriguez argued on appeal that he was entitled to the original ten-year offer and the court was required to accept it. The court of appeals considered three factors: (1) whether Rodriguez would have accepted the original offer; (2) whether the State would have been likely to withdraw the offer; and (3) whether the judge would have likely accepted the agreement.

The court of appeals concluded Rodriguez had suffered inadequate representation. The court’s solution was for the State to re-offer the ten-year deal and have a judge who had not recused herself accept or reject the deal. The court did not agree that the judge was required to accept the ten-year deal. The case was remanded for the State to re-offer the deal.

The State filed for review of the court of appeals’ decision, alleging four errors:

(1) The voluntarily recusal should not have been considered.

(2) Nothing in the record supported the possibility of the original judge accepting the ten-year deal.

(3) The second judge should not have been required to order the State to re-offer the ten-year deal.

(4) The judgment of conviction should not have been reversed.

The CCA considered the same three factors considered by the court of appeals. Although Rodriguez’s convictions were vacated, he was still entitled to a determination of whether he had received effective counsel. The CCA agreed with the court of appeals that Rodriguez had been harmed by following his attorney’s advice in rejecting the offer. No evidence suggested Rodriguez would have rejected the deal. The State was not likely to withdraw the offer because the passage of time had made the victims’ testimony at trial unreliable.

The CCA said the only question was whether the first judge would have likely accepted the ten-year deal. No intervening circumstances would have given the judge a basis to reject the deal. However, Rodriguez did have an extensive criminal history, and the police reports for his charges were particularly damning. But nothing in the record indicated the judge would have rejected the ten-year deal if it had been presented to her prior to the trial. The CCA thus rejected the State’s second allegation of error.

The State agreed the first judge would have likely accepted the ten-year deal prior to trial, but it argued the voluntary recusal was irrelevant. No evidence indicated any prejudice against Rodriguez. Requiring the State to re-offer the ten-year deal and then rejecting it were proper rulings and did not require recusal. On the State’s first allegation, the CCA said, the court of appeals had erred.

The CCA sided with the State on its third allegation, finding Rodriguez had received exactly what he requested–a new trial with a clean slate and a decision on a plea agreement by a judge. The second judge was not obligated to give Rodriguez what the first judge had already given—consideration of the ten-year deal. Therefore, there was no requirement that the State re-offer the ten-year deal. The CCA did not consider the fourth allegation because its decisions on the first three allegations made the fourth issue moot. The CCA reinstated the 25-year sentence offered by the State, agreed to by Rodriguez, and accepted by the second judge.

An individual facing criminal charges will be advised by his Fort Worth criminal defense attorney regarding whether to accept the deal. Although the decision is ultimately up to the defendant, bad advice that ultimately leads to a worse outcome than the deal offered may present an opportunity for a new trial based on ineffective assistance of counsel.

Fort Worth Criminal Trial Lawyers

“Everybody Out!” Court Rules the Right to a Public Trial Forfeited

By | Public Trial

Fort Worth Criminal Trial LawyersThe Sixth Amendment guarantees a criminal defendant’s right to a “public” trial. The Texas Court of Criminal Appeals recently confronted the question of whether and under what circumstances a criminal defendant may lose that right.

Bobby Joe Peyronel was convicted of a criminal offense. During a break in the punishment phase of Peyronel’s trial, an unidentified female supporter approached a juror and asked how it felt to convict an innocent man.

Fearing juror intimidation and apparently unable to identify the woman, the prosecutor asked the judge to exclude all female members of Peyronel’s family from the courtroom. Peyronel objected, arguing that granting the request would exclude Peyronel’s wife and daughter and give the jury the impression Peyronel had no supporters. (The CCA’s decision did not explain why the judge did not just question the juror, identify the woman who made the comment, and exclude her from the courtroom.)

In a possible overreaction, the judge ordered all witnesses and observers out of the courtroom. The punishment phase of the trial proceeded with witnesses waiting outside the courtroom until time to testify.

Peyronel appealed, arguing a violation of his constitutional right to a public trial. No one disputed that right. However, the State argued that because Peyronel did not ask the trial judge to do anything and did not inform the judge that he planned to appeal based on an alleged Sixth Amendment violation, Peyronel had forfeited his public-trial right.

The Court first considered whether the right to a public trial is mandatory (must be enforced no matter what a defendant says or does), waivable (can be knowingly and intentionally relinquished by a defendant), or forfeitable (can be given up if a defendant does not insist on enforcement). The court briefly reviewed cases from other jurisdictions and concluded the public-trial right could be forfeited.

The Court then considered whether Peyronel had forfeited his public-trial right. Although Peyronel objected to the trial judge’s order to clear the courtroom, the CCA did not consider that to be the equivalent of asserting a violation of his constitutional right. The court said there was no “magic language” Peyronel needed to use to assert the violation, but he at least had to specifically state what he wanted the trial judge to do and upon what grounds his request was based. The CCA determined Peyronel did not meet that standard and, as a result, forfeited his right to a public trial.

Read the full opinion: Peyronel

In a strong dissent, Justice Johnson noted that the prosecutor’s request was just to exclude female family members from the courtroom and Peyronel objected, arguing that such a broad action would remove his wife and daughter. Justice Johnson said that objection was sufficient on its own and it also implied Peyronel’s objection to a complete exclusion.

Justice Johnson compared the situation to buying an appliance. If a customer has a two-foot-wide space for an appliance and a seller tries to sell an appliance that is two inches wider, the customer will object. By objecting to that appliance, Justice Johnson said, the customer is also making it clear that he would object to the seller substituting an appliance even wider than two feet, two inches. According to Justice Johnston, when Peyronel objected to the exclusion of female members of his family because it was too broad to accomplish the intended purpose, that also constituted an objection to the exclusion of even more people and made it clear to the trial judge that his order to clear the courtroom was too broad as well.

Peyronel v. Texas is interesting in at least two respects. Anecdotally, it seems odd that neither the majority nor the dissenters were troubled at all by the fact that the trial judge went beyond the prosecutor’s request and ordered everyone from the courtroom rather than trying to identify the woman who was the object of concern and removing her.

More fundamentally, the principle that some constitutional rights can be waived is well established; for example, Miranda rights are frequently waived. But, the court’s opinion suggests that a defendant can lose his constitutionally protected public-trial right by not speaking up, or, presumably, by speaking up but not speaking loudly or eloquently enough.

The Uncertainty of Criminal Trial

By | Trial Advocacy

This past week in Tarrant County, Texas I watched a sexual assault trial that I never dreamed would end in a conviction.  We were not defending the case, but I found it interesting, so I went to watch part of the trial.  While the defendant was not particularly likable, it didn’t seem to me that she was a criminal.  I knew the jurors would not like her, but I didn’t think they would convict her of a felony offense.  But that’s the thing about trial.  I don’t get to sit on the jury.  It only matters what 12 citizens think about the case.  I can think about criminal cases in purely legal terms, but jurors are often swayed by emotion.

This case reminded me that there is always a risk in going to trial.  An inherent uncertainty.  Even when you feel pretty confident about your case.  Thankfully, our criminal defense firm has been fortunate enough to get some favorable verdicts in recent trials, but those could have gone the other way very easily.  It is a sobering reality for criminal defense lawyers that someone’s life and future is in your hands.  Even more sobering, however, is the realization that at trial it’s only partly in your hands.  All we can do is prepare, prepare, prepare, and put forth our very best effort.

You’ll Get a Jury Trial and Like It!

By | Jury Trial

Spalding“I want a hamburger…no, a cheeseburger.”

“Spalding!”

Although every criminal defendant is innocent until proven guilty and has the absolute right to a trial on the merits, there are times when it is in the defendant’s best interest to plead guilty to receive a lesser sentence or probation.  Sometimes, that is the best advice I can give.  In these times, our goal is to mitigate the sentence.

However, if you can believe it, the State does not always offer a fair an acceptable plea bargain on sentencing.  In these cases, one of the options is for the defendant is to plead open (i.e. without the protection of a deal) to the judge.  This is a tactical choice.  Some cases are better for a judge and others for a jury. But in Texas it is not exactly the defendant’s choice.

In my Marine Corps days, operating under the military justice system, an accused has the right to sentencing by a jury or by judge alone.  It is the defendant’s choice alone and no one can interfere with that choice.  Seems fair enough, right?

In Texas, however, if a defendant wants to plead guilty and waive his right to a jury, thereby allowing the judge to impose the sentence, the State (i.e. the prosecution) has to consent to it.  If the judge allows a defendant to plead guilty and waive his right to a jury trial without the State’s consent, the judge risks a mandamus action directing him to vacate the judgments.

That is exactly what happened in Travis County in the case of State v. Gonzales (In Re Escamilla).

As the appellate court noted:

Article 1.13 of the code of criminal procedure provides that, other than in a capital felony case in which the State will seek the death penalty, a criminal defendant may enter a plea and waive his right to a jury trial as long as the waiver is made “in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state.” Tex. Code Crim. Proc. Ann. art. 1.13(a).

The 3rd District Court of Appeals (Austin), in a memorandum opinion, granted mandamus relief and directed the trial court to vacate its judgment. Now they’ll have to see what a jury thinks of the case.

Best Fort Worth Criminal defense attorneys

Accomodating Public Attendance at a Prison Trial

By | Jury Trial, Public Trial

Lilly v. State

Best Fort Worth Criminal defense attorneysThe Sixth Amendment of the United States Constitution guarantees an accused the right to a public trial in all criminal prosecutions.

Appellant Conrad Lilly, was charged with two counts of assault on a public servant while he was in prison.  The trial court sua sponte convened his trial in the prison-chapel courtroom in lieu of the local courthouse.  Appellant objected to his case being tried in the prison chapel and moved for a change of venue, arguing that his 6th Amendment right to a public trial was violated because “prisons are not open to the public and are more like military zones than public places.”  The trial court denied his change of venue request and the 11th Court of Appeals (Eastland) affirmed.

To support his claim, appellant pointed out the following facts to show that, as applied in his case, the prison chapel trial violated his constitutional rights:

  1. The prison is protected by double razor fences, locked metal doors, and high-security procedures;
  2. Only people listed on an inmate-defendant’s approved visitor list could enter the branch courthouse to attend proceedings (only 10 names can appear on that list and the names can only be modified once every 6 months);
  3. Media and other members of the public would be prohibited from entering unless TDCJ officials in Huntsville preapproved the media’s request;
  4. People attempting to attend the proceeding could be denied entrance if they wore offensive clothing; and
  5. Unaccompanied minors and people released from confinement within the last two years are prohibited from entering the prison at all.

In this case, “the court of appeals held that Appellant’s trial was not closed to the public because there was no evidence that anyone was ‘dissuaded from attempting’ to attend, and no one was actually prohibited from attending his trial.”  The Texas Court of Criminal Appeals disagreed with this analysis.  The focus of the inquiry, the CCA explained, “is not whether the defendant can show that someone was actually excluded.  Rather, a reviewing court must look to the totality of the evidence and determine whether the trial court fulfilled its obligation ‘to take every reasonable measure to accommodate public attendance at criminal trial.'”

[E]ven though many of the individual admittance policies in this case would not, standing alone, necessarily amount to a per se closure, the cumulative effect of the Unit’s policies undermines our confidence that every reasonable measure was taken to accommodate public attendance at Appellant’s trial.

Having found that Appellant’s trial was indeed closed to the public, the CCA further held that the trial court failed to make findings of fact on the record that justified closing Appellant’s trial.  Because Appellant’s 6th Amendment right to a public trial was violated, the CCA reversed the judgments of the court of appeals and the trial court, and remanded the case for a new trial.

The CCA refrained from considering or commenting on whether prison trials are inherently violative of the 6th Amendment, noting that there could be occasions where a “public trial” is held in a prison.