2000 octnov defender

8/11/2019 2000 OctNov Defender

1/24

th

f

e

n

r

A Publication

of

Harris

ounty riminal lawyers

Association

October November 2000

HCCl

nnual

Meeting

at Tony s

Banquet

Room

New officers

and directors

announced

Inside: DA Candidates

Square Off

Charlton on

aubert

elly


2/24

The Great Southwest Building

1314 Texas

Avenue, Suite

7 8 Houston, Texas 77 2

713-228-8300

"Let Us Help You Have

Pleasurable Leasing Experience"

for

More Information:

Contact

Charlotte

Totten

at

713-228-8300

The

Great Southwest Building

wants to invite you

to

tour our first class

office

spaces .

Located within walking

distance

of

the courts, convention center and

Enron Field, it is ideal for attorneys, mediators

and arbitrators. We

offer

flexible lease terms

from 3-5 years with onsite management,

leasing, maintenance and

courtesy

personnel, along with 24 hour access to the

building.

Our

full

service

rates

include

standard

el

ectr ici

ty,

uti

I ty,

clean

i n

g,

janitorial,

and directory

signs

Monthly

parking is also available as

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as 85.00. Our

building is 2 stories high (147,000 sq. ft.) with

many attractive features:

Fi rst floor- I rma's Southwest G ri II

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On site Deli and Barber

Shop

Office space available

from 500

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Newly

renovated common areas

Rental rates range

from:

$12.00 +

per

sq. ft.

We are

proud of

our great

rates

and

management "


3/24

rrhe e[endm

t

October / November 2000

Contents

From the President .

2

HCCLA OFFICERS

Through a New Pair ofEyes

3

2000 2001

PRESIDENT

Daubert, Kelly

and

Their Progency . . . . . . . . . 6

ichard Frankoff

PRESIDENT ELECT

Wayne Hill

VICE PRESIDENT

DA Candidates Square

Off . . . . . . . . . . . 10

Troy McKinney

SECRETARY

Cindy Henley

Fed Square . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

REASURER

Emily

Munoz

PAST PRESIDENT

Danny Easterling

HCCLA Scholarship . 20

BOARD

OF DIRECTORS

Mary

Acosta

Lott Brooks

Winston Cochran

Hearsay . 21

Rosa A.

liades

Rob

Ficlanan

Ron

Hayes

David Jones

Jay

Karahan

David Kiatta

David Mitcham

Let's Hear From You

yrone C. Moncriffe

Anthony Osso

Paul Sr.

John

Call us

with your

suggestions on this publication.

Grant Scheiner

Norm Silverman

Clyde Willian1s

PAST PRESIDENTS

The

efender

1971 1998

Publisher

HCCLA @ (713) 227-2404

C.

Anthony

Friliollx

Stuart Kinard

Editor Emeritus Allen Isbell

George Luquette

Marvin O. Teague

Editorial Staff Rosa EJiades, Melissa Martin

Dick DeGuerin

Advertising Staff

Mary

Acosta

W.

B.

House. J .

David

R. Bires

Distribution

Jay Skelton

Woody Densen

Design and Layout

Jeff Tesch @Vyvid Productions (713) 526-1484

Will Gray

Edward

A.

Mallett

Carolyn Garcia

Distribution:

750

copies per issue. For article and

other

editorial

contribution,

Jack

B.

Zimmerman

Clyde Williams

contact Rosa Eliades at (713) 222-0610 or Melissa Martin at (713) 224-0888.

Robert

Pel

ton

To place an ad, call

Mary

Acosta

at

(713) 224-6677.

Candelario Elizondo

Allen C.

Isbell

Dav

id

Mitcham

ADVERTISING RATES: (Rates are subject to change)

Jim

E. Lavine

FuJI Page: $300.00

ick

Brass

Mary E. Conn

1/2 Page: $150.00

Kent

A.

Schaffer

Dan Cogdell

114

Page: $75.00

Jim Skelton

Business Card Size: $37.50

George

J.

Pamham

Garland

D.

Melnnis

Robert

A.

Moen

~ ~

It is a

good canvas on which some strokes onlywant retouching."

Lloyd

W. Oliver

- T h o m a s J e f f e r s o n J l I ~ 3 1

1788

on the ConstitUtiOIl

THE

DEFENDER


4/24

FROM

THE PRESIDENT

BY RICH RD

FR NKon

This issue ofour magazine has a new

name

and

masthead.

We believe this reflects

our

organization s

new energy,

direction

and

confidence. I first noticed this newness at

our annual meeting

and banquet.

On June

22

we met at Tony's banquet

room.

Those that

were there will remember

that night's the tension and excitement.

t

was the night of Graham's execution and the

day after the loss of a comrade, Donald

Davis. Anthony Osso remembered Donald,

and I praised our

members who

that night, rather than dining

with us, were working on

Graham's defense.

The evening had other

memorial events.

We had

fine

speakers, from

our

own Stuart

Kinard

recounting

the stories of

HCClA s formation

to the

articulate and inspiring Stephen

Bright damning the Texas death

penalty. We presented honorary

life

membership

on Jay Burne[(,

attorney of the

year

to Mike

Charlton and,

for the first time,

the

outstanding member

awatd

to Rosa Eliades. Also we initiated

the Torch of Liberty Award to be

presented

annually

to a

nonattorney who

has made

a

substantial contribution to the

criminal justice system.

This

year s

recipient

was Thom

Marshall for

his

outstanding

articles In the Houston

Chron

icle.

And

also for the first

time we awarded a five hundred

dollar

educational scholarship

to

Harris

County

probation

department to

be

given to

a

worthy probationer; this issue

contains a thank-you note from

this year's recipient.

Our hope is

that each year we can increase the

slim

awarded.

Perhaps it was at the

banquet

that

I first felt this newness,

or

maybe a JUSt a renewal. Danny

had JUSt

finished

an excellent

administration reestablishing

HCClA as a significant influence

THE

DEFENDER

In

the criminal

justice

system

. And I

accepted the honor of leading

the

next term.

I sensed a feeling

within

us. Perhaps it

is

not

new,

but rather one not

experienced in

a

long

time. I sensed self-respect. For

tOO

long the criminal defense anorney had

been

pushed

outside

of

the system.

A,

we have

been isolated

and

secluded from the criminal

justice process, we have lost

our beliefin

our

ability

to affect that process, to

make

a

difference for

our

clients

and

the community.

That

night

I sensed our

recognition that

we

are important

and

can make a significant and

BEST

NEW

BAR

IN DOWNTOWN

BEST OF HOUSTON 2000

HOUSTON PRESS

DAilY LUNCH SPECIALS

NOW BOOKING PARTIES FOR HOLIDAYS

509 MAIN STREET - HOUSTON TX

www slainteirishpub com

713-237-0000

October / November

2000

meaningful

contribution

to criminal justice.

We

remembered that

we are

part

of

the

system, a

necessary part of the

system

required

to make

it

work

properly

and

fairly.

Whether this feeling

of

self-respect

is new

or

just renewed after being lost makes no

difference. What matters

is that

we

now

take

this feeling and turn it into empowerment.

I

look

forward to being

president this

coming year,

to being

involved with this

organization, the board, each member

and

this feeling of self respect. Thank you for

the opportunity.


5/24

THROUGH NEW PAIR

OF EYES

Trial consultants help

with more

than seating juries

Y STACY

M

SCHREIBER

When the subject of

Trial

Consultants

comes up,

it

is

not

unusual for

images

of

high

profile,

spare-no-expense criminal

trials to emerge. In fact, the

only

time

we

hear anything about the

field

o f

trial

consulting

is

when the

media has latched

Onto yet

another

sensational trial in

which

every

imaginable

resource is utilized to

win

the

case. Trial

Consultants

have

been

variously characterized as

equal parts

magician, manipulator and

mind

reader.

They

have

also been portrayed as an

expensive trial tool ava ilable

only

to

the

very

wealthy

,

well-connected defendants,

or to

those whose

cases

guarantee invaluable

publicity and photo

opportunities.

The

consequences of

these

misperceptions

has

been

that

few lawyers even

consider the

contribution that

a Trial

Consultant can

make

to their

case

though the insight

a

consultant could bring could

mean

the

difference between a staggering defeat and a

stunning

victory.

My

goal is to address these

faulty perceptions surrounding

the

field of

trial consu

Iti

ng and

Trial

Consul

tan

ts,

provide

some information about the

types

of

cases

in which

you

may consider using

their

services,

what

to look for in a Trial

Consultant

and,

finally, the

c StS

associated

with including

a Trial

Consultant

in

your

trial team.

Magician,

manipulator

and

mind

reader.

None

of these adjectives accurately describes

a Trial

Consultant;

however, these images

have been

perpetuated

by those

with

little

understanding

of

the field

and

even

by

some

Trial

Consultants,

themselves. Rather,

they

are ordinary human

beings with

some

extraordinary

talents,

which many

are eager

to share. Trial

Consultants

come

from

many

backgrounds.

Some are lawyers, some are

psychologists,

some

are teachers, actors

or

sales

marketing experts, among other

professionals.

While

it may seem

somewhat

strange

that

Trial

Consultants come

from so

many different

environments,

once you fully

understand the

field

of

Trial

Consulting,

you

may

not

be

so surprised. Since

Trial

Consultants possess

a

wide vari

e

ty

of

training, talent and

experienl-e,

the

contribution

Trial Consultants

make

to a

case

may

be limited

only by the imagin ation

of

the

consultant

and

by

the

amount of

confidence

a lawyer places in

the consul

tant.

Trial

Consultants

are

most widely

known

for

their

employment as jury

pickers.

While

most do

assist

with the seating of

a

jury,

there is

a myriad

of other things that

some can do

to assist in devel oping a

winning

case.

Limiting

their

role in

the preparation

and presentation of

your

case to

jury

selection would deny

a

lawyer the

opportunity

to gain invaluable insights

into

his case,

important jury

issues

and

ideas for

the

most

effective

and dynamic presentation

imaginable. Lawyers

who employ

Trial

Consultants

to merely assist

with the seating

of

a

jury are seriously

short-changing

themselves. In fact,

the work they

can

do

leading up to jury selection will only

enhance

their

ability to

select the

most

favorable

jury

as

well

as

heighten

the

effect

the case

presentation will have

on that particular

jury.

While some

Trial

Consultants

focus

on

one

or tw sub-specialities,

such

as pretrial

research

and

jury

selection,

others

offer

a

wider range

of

services.

These

services

may

include the

development of

case

themes

,

witness preparation,

prerri;:Ji

research,

research analysis,

attitude

surveys,

juror

profiles,

preparation of

juror

questionnaires,

preparation

of voir dire

questions,

voir dire

training

,

challenge

for

cause techniques,

development of

demonstrative aids,

presentation strategies, analysis of

juror

questionnaires,

jury

selection, shadow juries,

trial monitoring and analysis,

opening

statements

and

closing arguments,

witness

examination

techniques, communication

strategies,

jury monitoring and

analysis

and

post-verdict

juror

interviews

and

analysis.

Upon

first glance,

it may appear that the

services

offered by

Trial Consultants are

routinely done

by lawyers every

single

day

in their

preparation

of

a

case for trial,

however, there are several critical differe nces

that make

a Trial

Consultant's contribution

unique and

invaluable.

Most

important

of

these differences is

that

a Trial

Consultant

has the abiliry to see

the

case

through

the

eyes

of jurors,

while lawyers

concentrate on

the legal issues of

the

case.

Understanding

jurors and

meeting them on

their ow

emotional territory is

essential to the

listening to, relating to, and accepting

lawyer's

point

of

view. Trial

Consultan

usually

come

from a

background

in

whic

empathy

for

others

is key

and can

assist

lawyer to understand

the

thoughts

an

feelings

that will

absolutely

make th

difference in

the

way

jurors hear and

respon

to his case. Additionally, Trial

Consultan

may provide

a favorable

means of presentin

unfavorable information

in a

way that

acceptable to

a jury.

Utilizing

their uniqu

people

skills, they

can

assist in

developing

juror

friendly case presentation before vo

dire and

upon

examination of the

seared jury

can

help to tailor

the presentation

to

thos

who

will

decide the

case.

The

time

to

analyze a case, fix its

problem

and

develop a

dynamic,

attractiv

presentation

is well in

advance

of trial. Tria

Consultants can

help

to

tackle these issue

in a

variety

of ways.

While

I

am

no

suggesting that

each

and

every case justifie

conducting

pretrial research, it can provid

priceless

information in

some

ver

troublesome

cases. Best

known

as

moc

trials or focus

groups

, pretrial research ca

provide

a dress rehearsal

of

the

trial

an

illuminate all ofthe problem areas of a cas

as well as help

to

predict

the reaction of th

actual jury to specific witnesses, issues of th

case

and

even range

of punishment. Th

provides the unique opportunity to fix th

problems

that

were

illuminated during th

research , help witnesses

to give

mor

effective,

credible

testimony,

decide how

r

present some

issues

and

recognize thos

issues rhat should be kept out of

the

tria

Another

benefit of

pretrial research is

tha

the

results provide clues to

the

types

of

juro

that

tend to be receptive to

the

case

and

thos

who

are resistant, as well as

the

issues

tha

must

be addressed

during

voir dire

A

Trial Consul tant experienced

I

communicat ion strategies, sales

an

marketing or

psychology is a

tremendou

asset in

helping

identify voir dire issues. Th

consultant will

help

effectively fram

questions

to

identify unfavorable

jurors

encourage

discussion

among

jurors an

subtly educate them about the

facts of

th

October / November

2000

THE DEFENDER


6/24

NEW

P IR

OF EYES

(CONTINUED)

ca

se from the lawyer's perspective.

The

Trial

Consultant will also work with a lawyer on

developi ng effective voir dire techniques that

will help to establish a Strong

rapport

with

tne jurors and gain their trust.

While

the

questions

asked are importa

nt, the

word

choices the lawye. makes will make all the

difference in whether the lju('stion is effective

and delivers the desired results or nO . A

Trial Consultant

who

is sensitive to word

choices and

the

framing of

thoughts and

ideas will assist in ca refully

crafting these

important

questions.

More

and more, judges and lawyers alike

a rc recognizing the value of

juror

questionnaire

s .

Not

only

do

th e

se

instrument

s save valuable time, they provide

jurors with the opportunity to answer

sensitive

questions with

our having ro do so

in front of strangers. This makes it much

more likely that

juror

s will answer critical

questions.

In

a

ddition

, the juror

questionnaire allows lawyers and judges ro

identify

potential

challenges for ca use

without the juror airing these issues in front

of the rest of the panel , and possibly causing

an epid emic

of like

answers. A

good

questionnaire is as much a

work

of

art as

it

is a scientific

instrument.

The

questionnaire

should include very few background

questions , quest i

ons that

will help ro identifY

challenges for cause, a

nd

questions

that

give

insight into the personality of

the

juror.

Frankly, some people don't understand the

value

of the

personality

question

s,

and

often belittle

them,

however, the answe rs ro

th ese questions

can

tell an

experienced,

critical reade r what the juror likes and

dislikes,

what

he values,

what

she abhors,

how

he best learns and remembers and

volumes

of

other

important

information that

will provide insight

into

jurors. The key

is

ro have someon e who

can an

alyze this

information and incorporate it inro voir

dire

and the pr es entation of the

case.

Additionally, it

is import

a

nt

ro have someone

who can explain the

import

ance of

some

of

the questions considered

frivolous

,

irrelevant or intrusive by opposing counsel

or the Court so that the lawyer

is

able ro

effectively defend or justifY

th

e use

of

those

questions in the questionnaire.

A

defendant

never has ro take the witness

stand. While that is not new information

ro anyone

re

ading this, many lawyers assume

that

if

their client

will

not

testifY,

there

is

no

need for any rype of witness

preparation

.

Other lawyers, if they have decided

that

their

client will testifY, believe they can

determine

ifhe will be a credible witne ss based upon

their

meeting

s before trial. Still other lawyers

overlook

the

importance

of

peripheral

players

and do

not recognize the need to

prepare

them for trial. Nothing can be

further

from

the

truth

in any

of

these

settings . In

the

first

situation,

if a

defendant

will not take the

stand, especially if he

will

not take the stand, his demeanor will come

under tr

e

mendous scrutiny

by his jury.

No

matter what jurors say during voir dire

th

ere

is

an

underlying

belief that if

there

were

nothing

to hide, he

would

testifY. Since

they

won

't

get

ro hear from him , they will be

watching

him-closely. They will watch

him

in

court

while

others

are testifYing. They

will

watch

him

out

in

th

e hallway.

Th

ey

will watch him as he

pours

himsel f a glass of

water.

They

will watch him as he sits alone

at

the

defense table. Th ey will watch him as

he rocks back

and

forth in his chair. They

will watch him

as

he

write

s notes . They will

see everything

and

they will

draw their own

conclusions about

their perception

of his

behavior and share those conclusions with

their

fellow jurors during

deliberations.

Because they can't hear from him, all they

can

do is watch and fill in the blanks.

Witness preparation,

or trial

pr

eparation,

including guid ance about

what

to wear

and

what not

ro wear, when ro stand and for

whom, is essential for this person.

The

second instance

is when a la

wyer

believes he can assess

the

effectiveness

of

a

witnes

s

by

discussions outside

of

the

courtroom,

which usually proves ro be a very

dangerous ass

umption.

While lawyers spend

their lives inside a

courtroom

, most witnesses

have no such experience.

They

often don't

know

what

ro exp ect,

how

to answer,

when

to

answer and

when

to be quiet. They

don't

know

about

the

concept of opening

the

door. Quite

often

, characteristi

cs that

are

praisewor thy in real life are detrimental on

the witness stand. We have been brought

up to be cooperative and hel pful. It is

natural to want to give

more

information

than was asked.

We

are

supposed

ro e

xpand

upon

our answers in

order

to

make

ourselves

under

s tood .

Unfortunately,

it

is

also human

nature to answer a question before it has been

asked

completely, or

fail to lis ten

to the

question and,

instead answer

the question

we THINK was asked .

How

can a novice

witness

know

that this

can

be disastrous? A

Trial

Consultant who understands

a witness's

circumstances, experiences, expectations and

beliefs c a n help

the witnes

s

become

comfortable

with

the

process,

know what to

expect

and

testifY

accurately and

credibly.

Peripheral players are often the

most

overlooked

group

of

people

when

it

comes

to witness preparation. t is often assumed

that if a person

is not

a parry involved in the

case,

either

as the defendant

or

a witness,

th a t person has no need for witness

preparation . Often, they are

the

most in

need of

guidance and preparation

. While a

lawyer's a ttention

may

not be

on these

people

, I

promise

that they will not go

unnoticed by the jurors . Wives , parents and

friends all say something about

the

accused

by their mere presence, lack

of

presence

and

their demeanor. For instance , displays of

anger from these well-meaning supporters

often works against the accused.

Any

emotional outburst is

often

perceived by

jurors

as an attempt at

manipulatioll,

one

they

will

naturally

resist. Inappropriate

clothing

, jewelry or

make

up provides the

opportunity for

jurors

to make assumptions

about the accused

and

those

with

whom he

associates . Jurors also closely a

ttend

to the

interaction

between

these

peripheral

players

and the accused, believing this provides clues

about the person on trial. These people are

often

not

prepared for tria

l,

and

while

their

intent

is to support the accused,

th

ey may

not

know

what

is

helpful and what

is nor.

Including

them

in witness preparation

sessions

can

easily solve this

problem.

By

doing so

you can turn a

potential

problem

into a tremendous asset.

t is widely assumed that the use of Trial

Consultants is

only practical in certain,

special cases. I absolutely agree. But

what

kinds

of

cases a re special? If you

ask

a

person accused

of

a crime, he will tell you

4

THE

DEFENDER



7/24

N W P IR

OF

Y S

(CONTINUED)

that his case fits that des

cription

. Cases that

have

anracted

a great deal

of

public attention

would certainly qualify. So would those cases

that

involve sensitive issues,

or

those

rhat

have a high degree ofcomplexiry. A "special"

case may al

so include those in which a lawyer

is inrerested in

developing

his presentarion

sryle, using new techniques and fine-tuning

his understanding of and rapport with jurors.

The

problem is rhat quire ofren, whar seems

a rourine case t a lawyer proves t be far

mote noreworthy,

sensirive or

complex

rhan

the

lawyer may have anricipated. It doesn't

marter if rhe issues are everyday marrers ro

the lawyer. If the jury sees rhings differently,

is rroubled by the issues, or if they

JUSt

don't

understand, the

case

is

in big

trouble

from

the ourser. Often, a different pair

of

eyes,

ears, and way of

thinking

can help t identify

areas of concern that may have been taken

for granted or overlooked and help you to

develop a juror-friendly presentation. The

point is

there

is no such thing as a perfect

case. There are always problems. There are

always issues that can be

potentially

disastrous in trial. There are always witness

problems. And there are always ways t

overcome these difficulties. In large cases

and small, a Trial Consultant who specializes

in pretrial prepara tion can help recognize

the

areas of concern and correct them before

the

trial.

Not tOO long ago, there were relatively few

Trial

Consultants

in the United

States.

Happily, the field has grown

and

continues

t grow by leaps and bounds . The good news

is

that this allows

more

lawyers

to

use Trial

Consul rants and it allows lawyers the

opportuniry t find theTrial Consultant who

best fits his

unique

needs and personal style.

It

is

important that

in

choosing

a

Trial

Consultant,

the lawyer find

one

wirh

whom

he

has

a good rapport, one

who

communicates

effectively

and

freely,

one

with

whom

he

can

build a bond of

trust

,

and one who views things differently than

he does. After all, the grearest asset a Tri al

Co nsultant can bring to a case is a different

point of view.

Another im portant consideration when

choosing a Trial

Consultant is what

will be

expected

from that

person.

the

Ocwber

/ November 2000

consultant to

talk abour

what

he or she

can

offer to assist in the case.

Be

certain that

the

consultant

is

addressing the unique elements

of

the particular

case

and

not

trying

to

sell a

standard

package.

Not

all cases require, nor

justify

the

expense

of

conducting mock trials.

Pay careful attention to the way the

consultant

presents his or

her

ideas.

Is that

person enthusiastic, energetic, imaginative?

Do

you

feel thar person can

offer

constructive opinions or do you sense that

he

or

she

would

rather tell you what you

wanr

t

hear)

There

are no tWO Trial

Consultants who have the same

methods

and

ideology.

t

is important that the one you

choose communicates his or hers t you

often and

thar

you are

comfortable with

those

methods and ideologies, also.

Additionally, I

strongly recommend using

one

Trial Consul tant rhroughout the

preparation

of your case.

Since there

are no

rwo with

identical methods

and ideologies,

what works for one may not work for

another.

Trying

t combine twO very

different

approaches can create

confusion,

redundant work and a case that frankly seems

uneven and patched tOgether.

Add

itionally,

a Trial Consultant who helps develop case

themes, prepare witnesses and conduct

pretrial research will have prod uced certain

results, however, another Trial Consultant

employed

solely for

jury

selecrion may be

helping

seat

individuals who

se preferences

and

demeanor may not match the case as

developed with rhe help of rh e firs

consultant.

Having outlin

ed

some

of

the

assistanc

Trial

Consultants

can

provide

in

helping

t

prepare a case for trial and the types of case

in

which

a Trial Consultant

can

provide

wide

variety of assistance, I will addres

possibly the mo st pressing concern lawyer

have about Trial Consultants. Tria

Consultants are a high-priced luxury an

way

beyond the financial resources of

mos

clients. I

won't

lie

to

you.

JI

of those thing

are true. There are certainly some Tria

Consultants who pride rhemselves on the

tremendous fees. I

don't

doubr they ar

worth

the price

.

But for every Tria

Consultant who relishes the distincrion tha

comes with being solely available

to

sociery

elite, there are many more who live to hel

others, regardless

of

their financial or socia

status, who live t practice their art, wh

simply love what they do

and

want to do

as

much

as possible.

Some negotiate, som

volunteer,

s

om

e JUSt

can

't

say no.

Don 't let

assumptions

about

what

YO

think

a Trial

Consultant

can offer,

what

kind

of

cases would benefJt from

the input of

Trial Consultant

or

prohibitive

COStS

stOp yo

from seeking the hel p of a Trial Consultan

Look around. Explore the possibilities.

Ta

to Trial Consultants. It never hurts to as

and you m ay be very pleasantly

surprised

.

THE

DEFENDER


8/24

DAUBERT, KELLY

ND

THEIR PROGENY

What do they mean and

do

they make a difference?

Y

MICH El CH RLTON

This paper 's purpose

is

ro

layout

the

oudine

of an a:.alytical

framework

for

Tex.R.Evid. 702 starring with

Kelly

v

State,

and Daubert v Merrill Dow, and

ro try

ro

offer some insight inro what they really mean

and

what avenues are likely ro be explored

in

(he

coming

months.

This

paper

is

divided

inro rwo parts: the first

is

an explication of

(he

theory and standards

of Rule

702,

while

th e

second

lists its

application

n vanous

experr wirness conrexts.

The first case ro challenge the accepted

wisdom of expert tes(imony under

Tex.R.Evid.

702 was

Kelly

v

State 824

S.W2d 568

(Tex.Crim.App.- 1992).

There

Judge

Campbell

noted that the long

standing

Frye

test, Frye

v. United States, 293 F

1013

(D.C.

Cir.

1923) and

reasoned

that Frye

had

not survived the adoption of

Tex.Cr.Evid. 702. He furrher sta ted

that

the

touchsrone

of any analysis

of

rule

702

was relevance:

We

have recognized before that the

threshold de

termination

for a trial

courr

ro make rega

rding

the admission of expert

testimony

is

whether

that

test imony will help

(he (rier of fact

understand

the evidence or

determine

a fact in issue. (citation

omitted).

Thus, in a case

such

as this - where the trial

court was faced with

an

offer

of

expert

tes

timony on

a scientific ropic unfamiliar

ro

lay

jurors

- the trial court's first task is to

determine whether the testimony is

suHicicnrly reliable

and

relevant to help the

jury

in reach accurate results.

Unreliable.

scientific evidence

simply

will not assist

the jury to

understand

the evidence

or

accurately

determine

a fact in issue;

such

ev

idence obfuscates rather than leads to

an

inrelligent evaluation

of

the fact

s

(citation

omitted).

If the

trial judge determines that

the

proffered

expert

testimony

is

reliable (and

(hus probative

and

relevant), then she

must

next determine

whether,

in balance, that

testimony might nevertheless be

unhelpful

to the trier of fact for other reasons.

The Courr

then went

on

to

set out

the

usual analysis

under

Tex.Cr.Evid .

403. Judge

Campbell concluded

by

stating that Frye

was

no longer

a

part of

a Rule 702 analysis.

Under

Kelly, three criteria

must

be nlet for

evidence derived from a scientific

theory

ro

be

considered

reliable: (l)

the underlying

scientific

theory must be val id ; (2) the

technique

applying the (heory

must

be valid;

and

(3)

the

technique must

have been

properly applied on th e occasion in question .

All

three criteria

must

be proven

to the

trial

court, in a hearing outside the jury's presence,

before

the evidence may

be

admitted.

Factors

that could

affect

a trial

court'S

determination

include but are

not

limi(ed

to (I) the extenr ro which

the

underlying

scienrific

theory

and technique are accepted

as

valid

by the

relevanr scientific

communiry,

if s

uch

a community

can

be ascertained; (2)

the qualifications

of

the expert

testifying; (3)

the

existence of literature supporting

or

rejecting the underlying scientific theory and

technique

; (4)

the po t

ential rate

of error of

the

technique;

(5) the availability

of

other

experts to test

and

evaluate

the technique;

(6)

the

clarity

with which the underlying

scientific

theory

and

technique

can

be

explained

to the court and

(7) the experience

and

skill

of the person

who

applied the

technique on

the occasion in

question

. The

proponent of

the evidence

must

establish its

reliability by clear

and convincing

evidence.

It

should

be

noted

that Kelly

by its

own

terms,

is

limited

to

novel scientific evidence.

Eighteen

months after Kelly,

the

Supreme

Court decided Daubert v.Merrell Dow, 509

U.S.

579,

I l3 S.Ct. 2786

(1993) a nd

reached a very similar result.

Frye

was held

not ro have survived

the

adoption

of

Rule

702 . Further, Rule

702 s requirement

2

that

the

expert

evidence, assist

the

trier

of

fact

ro understand

the evidence

or determine

a

fact in

issue

is a condition that goes

primarily to the

issue

of

relevance.

In

that

sense, the

expert

testimony mu s t be

sufficiently tied to the facts of

the

case as to

aid

the

jury in resolving a factual dispute .

The

consideration has been a

ptly

described by

Judge

Becker as one

of

fit .

Fit is not

always

obvious, and scientiflc

validity for

one

purpose

is not

necessarily

scientific

validity for other unrelated

purposes

Rule

702's

helpfulness

standard

requires a

valid

scientif ic

connection ro the

pertinent

inquiry as a

precondition

to admissibility.

The

Courr

posited a

number

of

criteria

to

determine whether

the theory

or

technique

will be of

the

requisite assistance.

One

is

whether the

theory

or

technique

can

be tested; can

others

in the field test (he

hypotheses

and

determine if they can

be

falsified? Another consideration

is

whether

the theory

or

technique

has been subject to

peer review

and publication

.

Publication (which

is

but on e element of

peer revi ew) is

not

a sine qua

non of

admissibility; it does

not

necessarily correlate

with

reliability,

(citation omirred), and

in

some

instances well-grounded

but

innovative

theories will not have been

published

But submission to the

scrutiny

of the

scientific

community is

a

component

of

good

sc

ience

in

part because it increa

ses

the

likelihood that substantive flaws

in

methodology

will be

detected.

The

trial

court should

also

consider

th e

known or potential rate of

error.

Finally

,

general acceptance can yet have a

bearing

on the

inquiry

.

There are two

interesting

aspects of

Daubert:

the first

is

that

the

parties both

argued that abandonment of the general

acceptance

Frye

test

would

result in a free

for-all in

which

juries

would

be

confused

by

pseudoscientific testimony.

The Court pooh-

poohed

such concerns

stating

that

traditional

guarantees such as

vigorous

cross-

exa

mination

, presentation of contrary

evidence

and instructions

on

the

burden of

proof

would

be sufficient ro

attack

shaky

6

THE

DEFENDER



9/24

DAUBERT

KELLY (CONTINUED)

but

admissible evidence. The Coun did

not characterize

its

new

rule

as an

exclusionary device; it was

contemplated

by

both

sides

and

the

Court that

this new rule

would be in reality, less restrictive

than

the

Frye test.

3

Another consideration is that Daubert

never

mentions correct

application

of the

technique as does Kelly. (n fact, the vast

majority offederal courtS to have considered

the issue have rejected Daubert challenges

to evidence,

holding

that such issues go to

the weight of the evidence, not its

admissibility. In balance, this

is

more likely

to be the correct holding and those few Texas

cases that have considered the issue have

resolved it similarly.

This is

likely to be

ultimately

the result in

Texas as well

eventually.

In Emerson

v.

State 880 S.W.2d 759

(Tex.Crim.App.- 1994), the Coun was

confronted with the State's failure to

introduce any evidence to suppOrt a Kelly

determination

on an HGN, or

horizontal

gaze nystagmus test in a

OW

case. In a 5-

4 vote, the

Court

held that itcould judicially

notice

the

various

publications and

court

decisions and ruled that HGN was a reliable

scientific theory and technique.

The

impact

of this decision

may

well be that once an

appellate

court

decides

that a panicular

theory or technique

satisfies

[he

requirements of Rule 702, a future

proponent of the theory may well satisfy his

burden by simply asking the trial

court

to

judicially notice the appellate decision.

The

objecting

party would

then

have to inj e

ct

inro the record a new challenge ro the

reliability of the technique.

In Jordan v. State 928 S.W.2d 550

(Tex.Crim.App.- 1996), the Court decided

the scope of

the

relevance component

of

Rule 702. Relevance was, by its natu re , a

looser notion than reliability.

Whether

evidence

would

assist the trier of fact and

was sufficiently tied ro the facts of the case

was a

simple,

straightforward matter

to

establish. The court held that an expert need

nor testify ro every conceivable facror that

might influence the theory or techl ;que he

was advancing.

Adopting

a

notion of

fit

that

is so suict as

to

require

an expert ro address every

foreseeable issue pe

rtinent

ro his

testimony

that

might

be raised by

the

relevant facts goes

beyond

the requirement that the testimony

e helpful

and

therefore relevant under Rule

702.

The

question

is

not whether there are

some facts ir. the case that the experr failed

ro

take into account,

but

whether the experr's

testimony

took

inro

account

enough of the

pertinent facts ro be ofassistance to the trier

of fact

on

a fact in issue. That

some

facts

were not taken into account by

the expen is

a marter

of

weight and credibility, not

admiss ibil ity.

In Hartman v. State

946 S.W.2d 60

(Tex.Crim.App.- 1997), the Coun rejected

an argument that reliability

could

be

established legislatively. The San

Anronio

court had rejected a Daubert

or

Kelly

challenge ro

the

admissibility of

the

Inroxilyzer

on

the theory that the Legislarure

had already determined the admissibility of

such tests. The Coun held

that

Rule 702

and the Kelly analysis applied ro all scientific

or

experr testimony,

not

just novel testimony,

and the State was obligated to satisfy rule

702 before seeking to admit

such

testimony.

In

Nenno v.

State

970

S.W.2d

549

(Tex.Crim.App.- 1998), the Court consider

the application of Kelly ro psychology and

other

social

sciences.

The

question we

confront

roday is

whether

Kelly

is

applicable

ro

nonscientific expert

testimony

(i.e. that

involving technical or other specialized

knowledge) .

The Court

ruled that

both

Daubert and Kelly applied but

not

the

specific facrors oudined in those cases.

The

Court distilled Daubert into

two

important

propositions:

that

the trial

court

was required

ro act as a gatekeeper

to

dete

rmine

the

reliability

of

expen evidence

and that the

four facrors of Daubert did

not

necessarily

apply outside the hard sciences .

When addressing fields ofstudy aside from

the hard sciences, such

as

the social sciences

or fi e lds that are primarily based upon

experience

and

uaining as opposed ro

the

scientifiC method, Kelly s requirement of

reliability applies but with less rigor than to

the hard sciences. To speak of the validity

of a theory

or technique

in these field

may

be roughly accurate but somewha

misleading. The appropriate questions ar

(I)

whether

the

field

of

expertise

is

legitimate one, (2) whether

the

subjec

matter of the expen's testimony

is

within th

scope

of that field , and (3) whether

th

expert's testimony properly relies upon

and

or

utilizes

the

principles involved in

tha

field. These questions are merely a

appropriately tailored translation of the Kel

test ro areas

outside of

hard science. And

hard science methods of validation, such

a

assessing

the potential

rate

of error o

subjecting a theory ro peer review, may ofte

be

inappropriate

for

testing

the reliability

o

fields of expenise outside the hard science

Nenno is an

unfonunate

decision. Whil

there

is absolutely nothing

wrong

wit

adopting a flexible standard depending

o

the field of experrise. the formula adopte

by

the Court is virrually meaningless. How

does one

determine

the legitimacy of

particular

field

of

ex pertise? Is such

question

nothing more

than an issue o

whether the expertise will assist the trier

o

fact, i.e.

is

it relevant?

If

the experrise wi

provide the requisite assistance, then it

relevant. An expert who

claims

ro be abl

to intuit who is telling the [[uth will provid

assistance ro the

jury and

thu

s might

b

relevant, but is it reliable? The legitimacy o

a field of expertise has nothing to do wit

assuring a

minimal

level of reliability

an

everything ro do with a coun

applying

standardless analysis of what evidence th

jury

is

ro hear. Further, whether [he subje

matter

is

within

the

experr'

s

scope is

an issu

that can be entirely

determined

by the expe

himself,

without

any reference

to th

opinion

's reliability.

Nenno

provides us

wit

no

assistance at all.

Finally, the

Supreme Coun weighed

again on the same issue as Nenno in Kumh

Tire Company v Carmichae

l,

119 S.Ct. 116

(1999). The Court ruled that Dauber

general principles

applied

[ all expe

matters. Rule 702

was

a

standard

o

evidentiary reliability. Daubert however,

a flexible

inquiry;

a uial

coun

may consid

the various factors. Reliability concerns ma

focus on scientific

foundations

or persona


THE DEFENDER


10/24

DAUBERT KELLY

(CONTINUED)

knowledge or experience. The Daubert

questions

may

help [ evaluate the reliability

of even experienced-based testimony.

How

often, for example , does an expert's

experience

based

methodology

prod uce

"rroneous results? Is such a method generally

accepted in

the relev: .I1t

community?

Would

others

in

the field recognizc the method

or

technique as acceptable?

What is essential, according [ the Court,

is that the expert use

the

same level of

intellectual rigor in the courtro om as outside

of it. A trial

court

should consider the

Daubert factors where they are considered

reasonable measures of the reliability of

expert testimony.

There

are rwo principles that are gleaned

from Kumho: like Nenno the 702 gateway

function of

the

trial court and the heightened

reliabilty standard apply to all expert

testimony,

not

JUSt those disciplines of the

hard sciences. Unlike Nenno the standards

remain

the

same, regardless

of

the nature

of

the testimony. While there is a great deal of

latitude to be afforded trial courtS

under

Kumho to decide how reliability is to be

determined,

the Daubert principles

must

be

satisfied.

The

following is a list in no particular

order where courtS have considered various

disciplines in the context of

Kelly

and Rule

702. Some editorializing is included where

[

rhought appropriate.

1. Eyewitness expert testimony

Weatherred v State 985 S.W.2d 234

(Tex.App.- Beaumont , 1999 pdr grtd .) .

Here

, the de fendant

elicited extensive

tcsrimony from his witness

about

the field.

He supported his 702 hearing claim with

extensive articles, treatises and abstracts

of

articles. Over

60

experts were summarized

for the bill

of

exceptions. See also

Jodan

v

State

928

S.W2d

550 (Tex .Crim.App.

1996) (eyewitness expert testimony is

relevant - see above). The PDR

grant

here,

given the

holding

of

Nenno

leaves the effect

of this holding in substantial doubt. See also

Nations State 944 S.W.2d 795 (Tex.App.

Austin, 1997).

2.

OWl

Intoxilyzer

Hartman v State 946 S.W.2d

60

(Tex.Crim.App.- 1997).

Court

holds that

State must satisfy Kelly and Rule 702 before

admitt ing

Into

xilyzer results; statute

authorizing admission of breath test results

will not satisfy 702 requirements.

3 .HGN

Emerson

v State 880

S. W

.2 d 759

(Tex .Crim .App.-

1994).

HGN

approved

under Kelly

by using judicial notice. See

above.

4.

Drug

Analysis

Chisum v

State

988

S.W.2d 244

(Tex.App.- Texarkana,

1998 pdr

ref'd). A

drug chemist's testimony approved

under

Rule 702. Here, however,

chemist

testified

only about her background, experience and

the machine's operation.

No

testimony was

elicited

about

the underlying theory of the

spectograph. Court found Kelly

satisfied

because

chemist

testified that if there is

an

error in

the

process, the spec[Ograph

wo n

't

work. Court notes that defense failed

[

offer

any challenge [ the underlying reliability.

While this

is

not the objecting party's

burden, counsel would

do

well not [ take

the

issues

of

burden

of

proof outlined

in

Kelly see above, literally. One should be

prepared to go forward

with

such a cha.llenge

[

undermine

the theory,

if

the evidence is

available. Court also notes that it was error

[ not hold the hearing outs ide the

jury

's

presence

and

not properly allocate the

burden

of proof

but

the errors were harmless.

See also Wilson

v

State 854

S.W2d

270

(Tex.App.- Amarillo 1993); Williams v State

936 S.W2d 399 (Tex.App .- Fort Worth,

1996 pdr

ref'd). Durham v State 956

S.W2d 62 (Tex.App.- Tyler 1997 pdr ref'd)

(use of

drug

chemist [ determine to

what

extent

defendant

was

intoxicated by

marijuana at time

of

accident approved).

5. Anatomically correct dolls

Perez v State 925 S.W2d 324 (Tex.App.

Corpus Christi, 1996). Court refused [

apply

Kelly

t

this issue because Kelly applied

only ro novel scientific evidence. Because

articles

about

such dolls extended back 15

years , a 702 analysis was nOt required.

Obviously, this is no longer a valid

holding

under

Nenno and Kumho.

6.

Reverse or retrograde

extrapolation theory in OWl

Hartman

v

State unpublished opinion.

Aug . 4, 1999. On remand from the CCA,

see

above, Court

holds that reverse

extrapo lation satisfies Kelly but what was

not

challenged

was either the

underlying

scientific

theory or

the technique, only its

proper application. Without

so stating, court

in effect, holds that these issues for the jury

ro decide, an analysis similar t that of the

federal courts. Dissent notes the problems

with both theory and technique.

7 Polymerase chain reaction

(PCR DNA test)

Aguilar v State 980 S.W2d 824

(Tex.App.- San

Antonio

1998). PCR

method of

DNA analysis found valid under

Kelly See also Campbell

v

State 910 S.W2d

475 (Tex.Crim.App.- 1995).

8. Munchausen Syndrome

by Proxy (MSBP)

Reid v State 964 S.W2d

723

(Tex.App.

Amarillo, 1998) MSBP

-

the

act

of

endangering

a child in

order

to

perform

heroic acts

of

saving child's life - found valid

after extensive Kelly hearing. This case

presents good example

of how

a Rule 702

hearing

should be conducted . Should be

considered a

blueprint

for such hearings,

including theories of validation, etc.

9. Probability of Paternity

Statistics

for use

in

Sexual Assault case.

Griffith

v

State

976 S.W.2d 241

(Tex.App.- Amarillo,

1998). Approved

under Kelly

10.

Hydrocarbon sniffing

dogs.

Pitts v State 982 S.W.2d 175 (Tex.App.

Housron 1

1998

pdr ref'd). Again, like drug

chemists, a

faulty 702 analysis but

use

approved.

11. Radar guns

Ochoa v State 994 S.W.2d 283 (Tex.App.

I Paso, 1999). Here, the state

attempted

8 THE

DEFENDER

Ocrober

/ November 2000


11/24

DAUBERT

KELLY

(CONTINUED)

to use the same 702 techniques

as

in the drug

chemist cases

but

court here disapproves

and

mandates

strict

Kelly compliance. Rader

guns

not

approved.

12.

RFLP

DNA

analysis

Kelly v. State 824 S .W.2d 568

(Tex.Crim.App.- 1992). RFLP approved.

See also Hicks v State

860

S.W.2d 419

Tex.Crim.App.- 1993).

2

For our purposes here, Federal Rule 7 02

is

virtually identical

to

Tex.C r.Evid. 702.

3

In

fact,

with

few

exceptions

set

forth

below, the principal

development

of the

Daubert

rationale has been an inclusive one.

The

principal reputation of Daubert

as

an

exclusionary rul e has been in the civil arena

and

primarily dir

ect to plaintiff's personal

injury attorneys. See Merrell Dow v. Havn

953

S.W.2d

706 (Tex. 199

7) co urt add

to

the Daub

er t factors listed above, t

considerations

of

whether there

are

no

judiciaJ us

es of

the

theory

or

technique

.

other words, has

the

technique

only

be

developed for litigation purposes. See al

E.I

du Pont de Nemours v. Robinson 92

S.W.2d 549 (Tex. 1995).

3 Graphoanalysis

Sosa

v. State

841 S.W.2d 912 (Tex.A

pp

.

HoustOn 1 1992) . GraphoanaJysis rejected

here. There was a total failure by defense

counsel

to

make any real effort

to

satisfy

Ru

Ie

702.

14 Family Counseling expert who

testified about

long-term

responses to v

iolence and whether victim exhibited

such responses.

Fowler v.

State 958 S.W.2d 853

Tex.App.- Waco J997 pdr grt'd). Court

rej ec ts use of such test

imony

here because

state utterly failed to make any reaJ effort to

comply with Rule 702.

15. Roise

v.

State _ S W 2 d _

(Tex.App. - Austin,

November 4,

1999).

Court of Appeals excludes

testimony of

psychologist

who

offers opinions of

harm to

children based on his analysis

of

photographs

in the possession

of the

defendant.

Case

turns on

several issues, namely whether

the

testimony was relevant, whether there was a

fit between

the opinion

offered

and

the

evidence elicited and whether

triaJ

court even

bothered to conduct a 702 analys

is

. State

does advance argument that while testimony

might not

have satisfied

Kelly

and

Daubert

it did satisfy Nenno. Court rejects argument.

While

courts

have adhered to this

procedural requirement

of

an out of the

presence

of

the jury hea ring with he

proponent

of the evidence havi ng the

burden

of proof, that adherence has largely been in

name

only.

Most

courtS that have considered

the

is

sue have ruled (he failure to co

mply

harmless error. See e.g. Chisum

v

State 988

S.W.2d 244 (Tex.App.-Texarkana, 1998 pdr

ref'd).

Legal

Assistant

/

Administrator

Former Criminal

Defense

Attorney

Former Assistant District Attorney, Harris County

James

Truett

Garrett

Reply to:

65 2 Pickens

Houston TX

77007

713-862-1141

OctOber / November 2000

THE DEFENDER


12/24

DA CANDIDATES SQ1JARE OFF

An HCClA

Voters

Guide

BY YOLANDA D. COROY

AND GRANT M. ScHEINER

While not

as

high profile

as

the national

debates to

determine

which politico will

wrest control

of

1600 Pennsylvania Avenue,

a series

of

live comt-arisons between rhe tWO

remaining candidates for Harris

County

District A((orney is proving important if, for

no orher reason, it challenges voters 10 think

and talk

about

some

of

the most compelli ng

issues

in our

local criminal justice

sy

stem.

I

believe changes are needed

in

rhe Harris

Counry District AtlOrney's Office

10

bring

it

into the

21

" century for our community

and in the eyes

of

the world," Democratic

candidate Jim Dougherry

IOld Th

e

Defender

following a Thursday, September 7, 2000

dinner debate

between

Dougherty and

Republican candidare

Chuck Ros

enthal. "]

wanr the Harri s Counry Districr ArlOrney's

Office and Harris

County

to achieve an

inrernational reputation for fair and equal

justice,

competenr and effecrive

prosecutions, the highesr ethical standards,

high ideals, and a focus upon the shorr and

long-term effects

of

its acrions," Dougherry

said.

10 THE DEFENDER

The dinner debate, sponsored

by

the Pasadena Bar Association

and

held

at

the

Pasadena

Country

Club, marked rhe first

in a

series of side-by-side

comparisons

between

the

candidates. According

to

Dougherry, he and Rosenthal

will meer in various forums

10

contrasr their positions on issues

such

as

rhe death penalt) (borh

are for it, although Dougherty

would favor a

re

srrucruring of

the law

10

include

an

option

of

"life withour parole"

),

alternative

dispute resolurion, and

communiry involvement.

The

candidates

will

meet

in a

Channel 13

television s

tudio

debate

in

OClOber 2000, which

is scheduled

ro air

before

Elecrion

Day on Tuesday,

November 7, 2000.

[n Pasadena,

as in

other campaign

slOpS,

Rosenthal used biblical language

10

express

his supporr for the current dearh penalty

system in Harris County.

The

200-plus

audience, with a large contingency from the

Harris COllnry Districr AtlOrney's

Office, applauded

Ros

enrhalloudly,

even

as

the Republican candidate

sropped JUSt shorr of

his usual

thumping

charactcrizarion

of

prosecution as "doing the lord's

work.

"

Rosenthal

has raised

eyebrows at a

numb

er

of

campaign

appearances with

hi s

off-color

comments about whar he enjoys

mosr about being a proseculOr. "I

like doing bad rhings

ro

bad

people," he has IOld audiences on a

number of occasions.

Whether

ir is

truly

fair 10

label

all

individuals accused

of

breaking

the law

as

"bad people," or whether

an

informed elecrorate

mighr

actually recoil from a candidate who

expresses pleasure

in

doing "bad

things"

ro

orher

human

beings,

there

is

no question that Rosenrhal 's

rhelOric has struck a cord with his

Republican supporters. Most

observers agree that unless something bizarre

happe

ns

between now and Election Day,

Rosenthal's

starus

as a

Harris

County

Republican

in

a presidential election year has

all but

assured that he will succeed

John

Holmes

as rhe

Counry

's

next Disrricr

ArlOrney.

Bur

before the voring public h"r,ds

Rosenthal the keys 10 the corner office,

The

efender

has requesred rhat he

and

Dougherty

an swer a series

of wrirren

quesrions from rhe Harris

County

Criminal

Lawyers Associarion.

As

you may recall,

Rosenrhal's answers were first printed

in

The

Defender

(formerly

Docket C a ~

earlier rhis

year, alongside the answers from Rosenthal's

Republican primary opponents. For this

edirion,

The efe

nder gave Rosenthal an

opporruniry

10

change or update his answers,

while Democrar Dougherty

was

also asked

10 parricipate

in

our survey. Additionally,

the candidates were asked 10 submir a single

quesrion for their opponent

10

answer.

The

survey question s and answers, plus the

questions and

answers

the candidates

exchanged between themselves follow.

(A

prinr debate,

if

you wilL)

Interesring stuff,

ro

say rhe leasr.

October

/

November 2000


13/24

DA CANDIDATES SQl)ARE

OFF

1.

Why do

you want to be Harris Counry

District Attorney?

Dougherry

:

The

criminal

jusrice sy

srem

of Harris Counry needs improvemem and

rhe Disuicr Anorney

is

rhe officeholder who

can immediately initiate needed changes

within his

or

her comrol and best advoca te

for changes outside his or her comro . I wam

to see

changes

ma

de soon and

it appea

rs

a

D e

mocrat

is needed

to

do

it.

My

background includes: criminal pro secution

and defense, essential for balanced decis

ion

mak ing berween victims, offenders and th e

public ; a C.PA. , us e ful for

office

administration; and

mediation,

desirable for

seeing that trial s alone are not the only tools

the

DA's office uses . I se

ek

a

high qualiry

justice system and will

do

all I

can

ro achieve

on

e that

will

be so recognized in

this

communiry,

the coumry and the world.

Ro s

enthal: To

be abl e

ro

continue th e

excellem prosecutorial

stand

ards established

by Mr. H olmes ands his predecessors,

Mr.

Vance and Mr. Briscoe.

2. \Vhat

do you

think IS the most

compelling issue facing the Harris Counry

District Attorney's Office and why?

Dougherry: Attitude, ethics and outreach.

Th

ere

is

a need to engender respect from

that office for all

componems

and players

in

our

criminal justice system- to respect the

defendants

and

thei

r

rights, the

defense

attorneys

and

their obligations, victims and

their needs, judges

and

their proper role,

and

the

communiry

and its anitudes. There is

a need for th e DA's office personnel to see

them selves in a larger role th an JUSt trial

an

orneys

and

suppOrt sraff who prosecute

and punish

bad

guys.

Th

e office needs to

incorporate educ a

tion

of

the

public,

involvemem

in

th e communiry, especially

with youth,

and

ro be constam in respecting

and es

pousing

the ethical and constitutional

standards required

of

prosecurors and law

enforcemem officers.

The

public at large,

including the minority

communit ies

especially, need s to be assured

that justice

is

fairly and equally applied.

Rosenthal: I believe

that we

need

t

remain autonomous

from

any outside

influences. We need ro cominue ro p I ,secute

cases based

on

rhe relative

strength

of the

evidence and

nothing

else.

3.

Which

criteria

are

most important

in

determining

whether,

in a particular case,

the District Attorney should seek the death

penalry?

Dougherry: Is

guilt absolute

? Will the

death penalry in the

particular

case

deter

anyone other

than

the offender) In looking

at the offende r is

the

staturory

alternative

for capital

murder

, now life

with

a 40-year

minimum,

s

ufficient

to assure safery ro

the

communiry? Is the offender a danger to

others in prison t a degree that he is unlikely

ro be

capable of being safely contained ? I

seek and s

upport life-without-parole

as a

third option for capital murder and bel ieve

its enactmenr

would

eliminate the need for

most of the death penalries now

being

carried

out in this state.

Rosenthal: Whether

the

facts

support

a

capital

murder indictment and whether the

evidence that addresses the answers to the

special issues would be compelling ro an

average jury that

th

e death penalty is

warramed.

4. Do you consider yourself an "

insider

or

an outsider to the

current

political

structure of Harris Counry?

Which

do you

think would

make

a candidate better suited

for

the job

of

Harris County

District

Attorney

and why?

Dougherry: I am a longtim e

resident

of

Harris

Counry

but an oursider to the

currem

political

structure of the Harris Coumy

judicial system and counry governme

nt.

I

have many friends and supporters in the

system

and

in the

Republican party though.

My

prose

cution criminal

law

experience

is

from the federal side as

oppo

sed ro the Harris

Counry

DA's office, which differs from the

DA's and

the

judge s. I believe it gives me a

broader

perspective than

those coming

up

solely

through the

local ranks.

[was an

advisory

anorney

with the Criminal Division

of the U.S. Department of Ju s tice in

Washington, D .

C.

for four years

and

an

Assistam U.S.

Atrorney

in

Houston

for six

years. My

de f

ense

crimin

a l law

practice

has

been in federal

and

state

court.

I am Board

Certified

in Criminal Law and have been fo

more than 20 years . I ha v e rravele

extensively and learned the ways in whic

others

view

our communiry

and

its crimina

justice sysrem . Politically, I am active on th

Democratic side, which I see as open to a

for participarion and dialog and I share tha

philosophy. I

think

an

outsider

is what

ou

county needs

right now to assure

publi

dialog

on

criminal

justic

e maners.

Crim

will be prosecuted

and

criminals punishe

regardless of

parry

affiliation .

Rosenthal: I'm a political "outsider" -

ha ve never before run for office or bee

politically active .

The

Di s

trict

Atrorne

should

be free from

any

a ppearance o

political motivations in the execution of hi

duries. The public

ex

pects and de

ser ve

justice

not

politics in the

pursuit

of crimina

convictio ns.

5 . What (if any) active steps should

a

individual prosecutor take to

in sure that

conviction

is not procured

on

the basis

o

illegal evidence or police misconduct?

Dougherry:

The

prosecuror needs ro know

his or her case as early in

adv

ance of trial a

pos s ible. In

in t

ervi ewing witn esses an

investigating officers, the prosecuror need

ro remain vigil ant for potenrially ex culparor

evidence and ask necessary qu es rio ns o

witnesses

and

officers . When

pr

e- rria

motions seek discovery or suppression

o

evidence , rhe prosecutOr needs ro ask th

right

qu es

rions of rhe

right people

an

respond

ro

the motions

forrhrighrly.

\X

/h e

the

pros

ecutO r himse lf or herse lf is no

convinced

rhere is

evid ence from

which

th

judg

e or

jury

can convict , he or she sho ul

dismiss

rhe case .

Rosenthal:

All evidence

and

a

ll

witnes

se

s

hould

be scrutini zed ro be

certain

rhar it

accurate. This

includes

asking

op

en- e

nde

questions ro witnesses

befor

e

an

issue is se

for trial ro be sure of th at pers

on

's candor.

should also include asking de fense counse

ifhe/she has any in fo rmario n contrary ro th

police investigarion .

6.

For

which criminal offenses (if any

should

the Harris Counry District Attorne

have a

policy

of

not recommending

sentence of probation?

October November 2000

THE

DEFENDER

1


14/24


15/24

DA

CANDIDATES SQlJARE

OFF

Dougherty to Rosenthal:

Chuck, there

were several allegations

of

ethical

breaches and

one

of

immature

behavior

on

your

pan by

your Republican

opponents

in

the

primary. Your responses

were generally to explain the alleged breaches

as

those

of an

aggressive

prosecutor

willing

to push the

line

and to

acknowledge the

behavior. What assurances

can

you give the

public that you know the

limits

on

ethical

prosecution,

that you

won t overstep

them

in the

future,

a

nd that

you will instill in

the

Assistant

District

Attorney s

working under

you the proper legal and ethical standards?

am - 12 pm. tues. thurs.

am - 2am.

fri.

Gm - 2am.

sat

Rosenthal Responds:

I am assured

by the

people who made

those allegations that

they

will vote for

me

in

November.

The

allegations remain

unsubstantiated. s

someone who

has been

faced

with

legal

and

ethical decisions in

State

criminal

cases

on

a daily basis for

the past

23 plus years, I know

the

limits . One

of the

ways that

you and the

rest

of the

public will

know that

I will

not

oversrep

the limits is

that

I have

not

done

so in

the past and

have

remain

ed

an

aggressive

prosecutor.

I have,

and

will

remain,

loyal to

my oath

of office.

closed. sun. mono

Rosenthal to Dougherty:

You

once

said in

an interview that

you

an

I gave before the

Republican run-off

election

that

you

thought Harris County

needed

Democrat District Anorney

to balance a

of

the

Republican Judges.

What

part do

yo

see

partisan

politics

playing

in

the

crimina

justice

system?

ougherty Responds:

Partisan politics should not playa role i

the

operation of

the

District

Attorney

office, any

more than

it

should playa

role i

being

a

judge. But the

views

we

each hav

individually

will

playa

role.

Our own

view

are

presumably

reAected more

broadly

in

th

views

of the party

we

represent, unl

ess

w

are

hypocri ti

ca

l

r

identify myself

as a

Democrat

because

believe in

the

ideals

of using government t

give a

hand

up

to

the

less

fortunate,

inclusion

of

all in parry

and government, an

to

respecting the

views

of

all regardless

o

whether

I agree or disagree with

them.

I am

fiscally conservative in

wanting

to

do

all

w

can within

a

balanced budget.

In

th

criminal

law area, I believe in

working mor

on

rehabilitation

and 1l0t

JUSt incarceration

As

District

At rorney, I beli eve

ther

e

is

need to keep

criminal

law

and

policy issue

011 the public conference

table. The

curren

political imbalance

in

Harris

County ha

decisions

being made

in

the

Republica

party offices

and conveyed

through th

backrooms, without

the

public

possibly eve

knowing

what

is being done

in lock-step

an

what is not. Johnnie Holmes

served

as

primary counter-weight in

the

first rwelv

years

of

his term,

when Democrat

dominated the

system

and h e was

Republican. The

system

is

so lopsided

now

with

every

District and

Counry Judg

e

bein

Republican,

that

I

think

some

balanc

should return

.

As

Di

strict

Attorney,

I will keep crimina

law issues on

the public

age

nda

,

encourag

dialogue

and dis

cussion, and

keep

my

ear r

the

ground

on needed

changes.

HE

DEFENDER

1

Ocwber

/ November 2000


16/24

FED SQl)ARE

The Hyde Amendment

allows

vindicated

criminal

defendents the

right

to

seek attorney s fees

BY HIP LEwIs

Evolution

of

the

Hyde Amendment

For years, peop:e

pond

ered :

What

reli ef

should

a prevai ling crimilJal

defendant

have

against the

Government?

More specifically,

how can we, as citizens ,

compensate those

individuals who

fall

prey to the Department

of Justice

and

are victims of wrongful federal

prosecutions? While some argue,

[d)efending against

[a

criminal prosecution)

has always been deemed to be

one

of th e

cOStS of American citizenship ,

'

others

express

the

belief

that no

power

should

remain unchecked.

In response ro public outcries

for

a device

to monitor instances

of

prosecutorial

misconduct

on the

behalf

of vindicated

criminal

defendants,

Representative Henry

Hyde (R-Ill.) introduced to

the

House Aoor

what is now known as

the

Hyde Amendment.

Originally, the Hyde Amendment was

offered as a

criminal

version

to

the

1980

Equal Access

to

Justice Act (EAJA).2 Th e

EAJA is a law

that

authorizes the award of

attorney'

s fees ro prevailing civil litigants

against the

United

States,

if the

position of

the government

was

not

su bs tantially

justifled. l As Rep.

Hyde

stated, [w)e have

a law called the Equal Access to Justice Acr,

which

provides

in

a

civil case if

the

Government sues you , and you prevail.. .you

are

entitl

ed

[

have atrorney's fees

and

costs

reimbursed .

That

is justice .. . .Now,

it

occurred ro me,

if that

is good for a civil

suit, why not for a criminal suit? 4

Rep.

Hyde,

as a rider to

an

appropriations

bill , introduced the amendment ro the

Hous

e Aoor for

th

e

Commerce,

Justice ,

and

State

Departments.

After a

thirty-minute

debat

e ,

the House of

Representatives passed

the

new

legislation by a bi-partisa n vote

of

340-84. The creation and passage of the

Hyde

Amendment has been linked

to three

main facrors: I

frivolous

or

m alicious

prosecutions

that

escape

punishment, 2)

the

Departme nt

of

Justice's adoption

of

the

position that

prosecu tors (federal) are

not

subject

[

ethical rules of the states in

which

they

ar

e licensed, and 3) while the EAJA

applies ro civil litigants,

nothing is

in pl ace

to prot

e

ct criminal defendants from

wrongful federal prosecutions.

s

D espite little legislative his[Ory, it

is

clear

from

the

language

of

the Hyde Amendm ent

that it

is intended

to be a replica

of

the EAjA.

For example, in the original draft, the burden

of

proof fell

upon the

government to prove

that

its position was substantially justified,

as

is

the

2000 octnov defender

Documents