Saturday, November 24, 2007



The following is a collection of cases involving a court’s discussion of the role of the prosecutor or the prosecution function. The Center will continually update this collection by adding and, as necessary, deleting cases. Please notify the Center if an error is discovered or if you are aware of additional cases that should be included.

National Rules and Standards

American Bar Association Model Rules of Professional Conduct

3.8 – Special Responsibilities of Prosecutor
Comment [1]:
“ A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”

American Bar Association Standards for Criminal Justice

3-1.2(c): The Function of the Prosecutor
The duty of the prosecutor is to seek justice, not merely to convict.

National District Attorneys Association Prosecution Standards

1.1 Primary Responsibility
The primary responsibility of prosecution is to see that justice is accomplished.


Berger v. U.S., 295 U.S. 78, 88 (1935).

" The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

United States v. Wade, 388 U.S. 218, 256 (1967) (Justice White, concurring and dissenting).

“ Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain and present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we must also insist that he defend his client whether he is innocent or guilty. The state has the obligation to present the evidence. He need not present any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecutor’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth”.

In re Doe, 801 F. Supp. 478, 480 (D.N.M. 1992).

Prosecutors are “Shepherd[s] of justice.” When Government lawyer, with enormous resources at his or her disposal, abuses power and ignores ethical standards, he or she not only undermines public trust, but inflicts damage beyond calculation to system of justice. This alone compels the responsible and ethical exercise of this power.

Appeal of Nicely, 18 A. 737 (PA 1889)

“ The District Attorney is a quasi-judicial officer. He represents the commonwealth and the commonwealth demands no victims. It seeks justice only--equal and impartial justice-- and it is as much the duty of the district attorney to see that no innocent man suffers as it is to see that no guilty man escapes. Hence, he should act impartially. He should present the commonwealth’s case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate. When he exceeds this limit, and in hot zeal seeks to influence them by appealing to their prejudices, he is no longer an impartial official, but becomes a heated partisan.”

Bailey v. Commonwealth, 193 Ky. 687, 237 S.W. 415, 417 (1922).

“ [T]he duty of a prosecuting attorney is not to persecute, but to prosecute, and that he should endeavor to protect the innocent as well as to prosecute the guilty. He should always be interested in seeing that the truth and the right shall prevail….”

Fout v. State, 4 Tenn. 98 (1816)

“ He is to judge between the people and the government; he is to be the safeguard of the one and the advocate for the rights of the other; he ought not to suffer the innocent to be oppressed or vexatiously harassed, any more than those who deserve prosecution to escape; he is to pursue guilt; he to protect innocence; he is to judge the circumstances, and according to their true complexion, to combine the public welfare and the safety of the citizens, preserving both, and not impairing either; he is to decline the use of individual passions and individual malevolence, when he can not use them for the advantage of the public; he is to lay hold of them where public justice, in sound discretions, requires it. …“Can these views be attained by leaving prosecutions to every attorney who will take a fee to prosecute? Does every one feel the responsibility imposed by the oath of the solicitor-general by his selection for the discharge of these duties, by the confidence of the public reposed in him, by a consciousness of the impartial duties he owes to society and his country?”

Hosford v. State, 525 So.2d 789, 792 (Miss. 1988).

" A fearless and earnest prosecuting attorney… is a bulwark to the peace, safety and happiness of the people. ….it is the duty of the prosecuting attorney, who represents all the people and has no responsibility except fairly to discharge his duty, to hold himself under proper restraint and avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of the fair trial to which he is entitled, …. It is the duty of the prosecutor to see that nothing but competent evidence is submitted to the jury.…”

Hurd v. People, 25 Mich 405, 416 (1872).

“ The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent. His object like that of the court, should be simply justice; and he has no right to sacrifice this to any pride of professional success. And however strong may be his belief of the prisoner's guilt, he must remember that, though unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained, is unjust and dangerous to the whole community”

In re Peasley, 90 P.3d 754 (Ariz. 2004).

Prosecutor’s interest in a criminal prosecution 'is not that it shall win a case, but that justice shall be done; courts generally recognize that the ethical rules impose higher ethical standards on prosecutors.

Jeschke v. State, 642 P.2d 1298, 1303 (Wyo. 1982).

Prosecutors must always keep in mind that duty is to seek justice, not merely to convict, “which is most certainly a difficult duty to be carried out carefully and cautiously.” See also Lafond v. State, 89 P.3d 324 (Wyo. 2004).

Lindsey v. State, 725 P.2d 649 (WY 1986), quoting Commentary On Prosecutorial Ethics, 13 Hastings Const. L.Q. 537-539 (1986).

" The difference in our roles as advocates derives from the degree of our authority and the disparity of our obligations. Defense counsel's legitimate and necessary goal is to achieve the best possible result for his client. His loyalty is to the individual client alone. The prosecutor, however, enters a courtroom to speak for the People and not just some of the People. The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of "The People" includes the defendant and his family and those who care about him. It also includes the vast majority of citizens who know nothing about a particular case, but who give over to the prosecutor the authority to seek a just result in their name."

Montoya v. State, 971 P.2d 134, 137 (Wyo. 1998).

Ethical duty of a prosecutor is an extraordinary obligation that exceeds that imposed upon defense counsel.

People v. Greenwall, 22 N.E. 182 (NY 1889).

“ The district attorney, representing the majesty of the people, and having no responsibility, except fairly to discharge his duty, should not in his remarks, in the hearing of the jury, go beyond the bounds of reasonable moderation.”

People v. Kelley, 142 Cal. Rptr. 457, 75 Cal. App. 3d 672 (1977).

A Prosecutor is held to a higher standard than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state.

State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000).

“ A prosecutor is a servant of the law and a representative of the people…. We are unable to locate an excuse for a prosecutor’s failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas.”


Collier, Criticisms of the Bar, 1819.

“ Of all offices in the gift of the Crown, that of Attorney General is perhaps least to be coveted; for whether the government be popular or unpopular, the person filling that place can scarcely avoid being the object of general dislike: the rank is only fourth or fifth rate, and the manner in which it has been attained is always suspected, though sometimes unjustly: he is pretty sue to be charged with having ascended by the usual steps of political fawning and judicial servility, and after all he is only to be considered as the servant of servants—the curse of the Israelites. Lord Bacon says, that men in high stations are thrice servants—of the King, of the state and of the time—but the Attorney General is obliged to submit to a quadruple servitude; or at least in fact than in appearance. . .The most unpleasant consequence of all however appears to be, that the nation at large must look upon the Attorney General as sort of ministerial spy—an informer of rather higher rank than those who have recently become notorious; whose business is to ferret out and prosecute all who, either by their actions or writings, are endeavouring to displace the personages to whom he is indebted for his situation, or who are attempting to promote any reform in the system they support. Most of the ministry are engaged in great questions of foreign policy. . .and they leave the Attorney General to bear the brunt at home; his hand may be said to be against everybody, and everybody’s hand against him; he must fight all their domestic battles, and repel and punish all attacks whether political or personal”.

From a letter read at the retirement dinner of Manhattan District Attorney William Travers Jerome, New York Times, May 8, 1909, p.2.

“ [T]he prosecuting officer occupies a semi-judicial position; that he is charged with a large discretion, and that, while it is his duty to bring to justice those whom he believed to be guilty, it is equally his duty to protect the innocent and to refrain from prosecuting those against whom no sufficient or reasonable proofs can be found. In the course of his duties he sometimes has to stand between an incensed public sentiment, voiced by a clamorous press, and suspected persons against whom no proofs of crime can be produced.”

From “Checkmates”, episode 14, from Season Four of The Practice., Original Air Date February 13, 2003, Copyright ABC television, 20th Century Fox and David E. Kelley Productions.

“ The Speech” by character Richard (Assistant District Attorney): “There are heroes in this world. They are called district attorneys. They don't get to have clients, people who smile at them at the end of the trial, who look them in the eye and say "thank you." Nobody's there to appreciate the district attorney because we work for the state and our gratitude comes from knowing there's a tide out there, a tide the size of a tsunami coming out of a bottomless cess pool. A tide called crime, which if left unchecked will rob every American of his freedom. A tide which strips individuals of the privilege of being able to walk down a dark street or to take $20 out of an ATM machine without fear of being mugged. All Congress does is talk, but it's the district attorney who grabs his sword, who digs into the trenches and fights the fight, who dogs justice day after day after day without thanks, without so much as a simple pat on the back. But we do it, we do it, we do it because we are the crusaders, the last frontier of American justice, knowing if a man cannot feel safe he can never, never feel free.”

The District Attorney’s Oath from the radio and television serial Mr. District Attorney:

“ And it shall be my duty, not only to prosecute to the limit of the law all those charged with crimes within this country, but to defend with equal vigor the rights and privileges of all its citizens.”

the truth is so hard

The fundamental right

This right is so important in modern democracies that many have explicitly included it in their legal codes and constitutions:

* In Canada, section 11(d) of the Canadian Charter of Rights and Freedoms states: "Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".

* In France, article 9 of the Declaration of the Rights of Man and of the Citizen, of constitutional value, says "Everyone is supposed innocent until having been declared guilty." and the preliminary article of the code of criminal procedure says "any suspected or prosecuted person is presumed to be innocent until their guilt has been established". The jurors' oath reiterates this assertion.

* Although the Constitution of the United States does not cite it explicitly, presumption of innocence is widely held to follow from the 5th, 6th and 14th amendments. See also Coffin v. United States
* In the 1988 Brazilian constitution, article 5, section LVII states that "no one shall be considered guilty before the issuing of a final and unappealable penal sentence".

* The Universal Declaration of Human Rights, article 11, states: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defence.

* The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe says (art. 6.2): "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". This convention has been adopted by treaty and is binding on all Council of Europe members. Currently (and in any foreseeable expansion of the EU) every country member of the European Union is also member to the Council of Europe, so this stands for EU members as a matter of course.

[edit] The presumption of innocence in practice

Few systems have had, de jure, presumption of guilt. Accusations of presumption of guilt generally do not imply an actual legal presumption of guilt, but rather denounce some failures in ensuring that suspects are treated well and are offered good defense conditions. Typical infringements follow:

* In some systems, suspects may be held on long periods on remand, while inquiries proceed. Such long imprisonment constitutes, in practice, a hardship and a punishment for the suspect, even though he or she has not yet been sentenced. (see speedy trial)
* Courts may prefer the testimonies of persons of certain class, status, ethnicity, gender, or political standing over those of others, regardless of actual circumstances.
* In Europe and the Americas, prior to the French Revolution, it was common that justice could have suspects tortured so as to extract a confession from them. Even though the suspects were not, at this point, legally guilty, they were exposed to considerable pain, often with lasting physical consequences.
* Many public institutions, such as universities will punish members accused of felonies after they are indicted even if they have not been convicted. An example is the 2006 Duke University lacrosse team scandal where the accused were suspended even though they had not been convicted under a policy that punishes students who are merely indicted.

Guaranteeing the presumption of innocence extends beyond the judicial system. For instance, in many countries journalistic codes of ethics state that journalists should refrain from referring to suspects as though their guilt was certain. For example, they use "suspect" or "defendant" when referring to the suspect, and use "allegedly" when referring to the criminal activity that the suspect is accused of.

More subtly, publishing of the prosecution's case without proper defense argumentation may in practice constitute presumption of guilt. Publishing a roster of arrested suspects may constitute undeserved punishment as well, since in practice it damages the reputation of innocent suspects. Private groups fighting certain abuses may also apply similar tactics, such as publishing the real name, address, and phone number of suspects, or even contacting the suspects' employer, friends and neighbors (as an example, does so in order to shame suspected child molesters).

Modern practices aimed at curing social ills may run against presumption of innocence. Some civil rights activists feel that pre-employment drug testing, while legal, violates this principle, as potential employees are presumed to be users of illegal drugs, and must prove themselves innocent via the test. Similarly, critics argue that some dispositions of laws against sexual harassment or racial discrimination show a presumption of guilt. These dispositions were meant to ease the burden of proof on the victim, since in practice harassment or discrimination practices are hard to prove.

Civil rights activists note that the well-meaning practices so adopted may have a deleterious effect on justice being served. An example is the use of a screen in sexual assault cases, which is set up in some jurisdictions to prevent the complainant from being distressed at the sight of the accused. Where a victim was in fact victimized by the accused, this may be argued to serve the principles of therapeutic justice [1] [2]. However, where an accused is in fact innocent, this may send a message to the jury that the court has already accepted that in fact a crime was committed, which burden of proof has traditionally been on the prosecution, and which furthermore is a matter of fact that is not for the court to judge, but rather, for the jury. Not only this but also even more importantly, such a shield may also send a message that the complainant is upset by the sight of the accused, once again because guilt is seen to have been assumed by the court in so shielding the complainant. The psychological effects of such a screen have not yet been well researched, but the tension between the two views is a problem for therapeutic justice, which must weigh protection of genuine victims from genuine offenders against the potential for an unjust conviction that such protection may create.[3]

[edit] Differences between legal systems
This article or section may contain original research or unverified claims.
Please improve the article by adding references. See the talk page for details. (September 2007)

A common opinion held in countries based on common law is that in civil law or inquisitorial justice systems, the accused does not enjoy a presumption of innocence. This idea results from the fact that in most civil law nations, an investigating magistrate supervises police investigations. To common law countries with adversarial systems, the civil law criminal justice system appears to be hopelessly biased, since the judge should remain as impartial as possible. However the magistrate does not determine innocence or guilt and functions much as a grand jury does in common law nations. Furthermore, in many civil law jursidictions (such as Germany and Austria), police investigations are supervised by a prosecutor, and a judge is involved only in cases where a warrant is required for purposes of the investigation for restrictive measures as, e.g., arrest, search and seizure, or wiretapping. Courts are often organized in a manner that it will not be the same judge who will determine the guilt or innocence of the suspect.

In the view of supporters of the inquisitorial system, the latter is less biased than the adversarial system, since the judges supervising cases are independent and bound by law to direct their enquiries both in favor or against the guilt of any suspect, compared to prosecutors in an adversarial system, who will, it is claimed, look only for evidence pointing to guilt and whose re-appointments may depend on the number of successful prosecutions that they have brought.

In particular, a court under the civil law system is not bound to a confession of guilt of an accused person. Thus, technically, the accused cannot plead "guilty". In quite a number of cases, courts had acquitted accused persons who had made a confession before the court, because it was found that the confession had not been credible. A common motive for false confessions is the aim of the accused to distract suspicion from a third person, to whom the confessing person maintains a personal relation. Supporters of the inquisitorial system maintain that the possibility of acquittal of a confessing accused is required to guarantee objective truth in criminal proceedings. Since criminal proceedings were mainly instituted in the public interest, the personal pleadings of the accused could not be formally decisive for the case. For this reason, the accused person is not regarded as a party in criminal proceedings, but rather as a participant - of course with own specific rights. The reluctance of legislators to accept deals between prosecution, the accused, and the court is also based on to the notion on public interest involved in criminal proceedings and the suspicion that such deals may tamper the finding of objective truth.

In general, civil law based justice systems, especially in Europe, avoid use of the term innocent, since it carries a moral charge separate from the phrase not guilty. It is argued a person who is found not guilty still cannot always claim to be innocent, e.g. if he/she has used lethal force in case of valid self-defence exerted against a mentally handicapped attacker with very low IQ. The wording is therefore delivered in a more formal and neutral manner, such that an accused is either declared guilty, not guilty for lack of a crime, not guilty due to lack of evidence, or not guilty due to lack of jurisdiction (in the case that a child or lunatic is accused). Such plain language is better suited for the predominantly written proceedings and less emotionally-charged nature of civil law trials.

Another common misunderstanding which leads to the assumption that the presumption of innocence is not applied in civil law systems might be based on the fact that many jurisdictions allow administrative bodies to fine minor misdemeanors, in particular traffic violations, without prior obtaining a court judgment and sometimes "on the spot". However, all procedural laws in all continental European countries which grant such rights to administrative bodies allow for a motion for independent judicial review of the case.

[edit] See also

* Blackstone's formulation
* Richard Brodhead

[edit] External links

* The History of Presumed Innocence
* The effects of presuming innocence
* Justice:Denied magazine reports on the miscarriages of justice that occur when the presumption of innocence is not respected.
* Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394

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Categories: Articles that may contain original research since September 2007 | Rights of the accused

Thursday, November 22, 2007

Produce the original documents or is that too "hard"?

Dallas Criminal Defense Lawyer
State & Federal Cases
Constitutional and Statutory Bases

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions an accused has the right to the assistance of counsel for his or her defense. Under the due process clause of the Fourteenth Amendment, this right has been extended to persons accused of crimes in state prosecutions.

These constitutional provisions have been interpreted as requiring the appointment of counsel for an accused who is indigent. This right applies to all defendants charged with an offense for which imprisonment is imposed, whether classified as petty, misdemeanor, or felony. However, if the offense is a misdemeanor, the constitutional right to counsel applies only if imprisonment is actually imposed. Thus, a defendant is not entitled to appointment of counsel in a misdemeanor prosecution when the state asserts that it will not seek a jail sentence and the court's punishment is by fine only. Similarly, an accused charged with a misdemeanor who has not waived the right to counsel and is not represented by an attorney is not subject to imprisonment. The punishment under such circumstances must be limited to a fine.

The constitutional right to counsel is complemented by statutory provisions acknowledging a defendant's right to counsel in any adversarial judicial proceeding. This right includes the right to consult in private with counsel sufficiently in advance of a proceeding to insure adequate preparation. An indigent defendant is entitled to the appointment of an attorney for any adversarial judicial proceeding that may result in punishment by confinement and in any other criminal proceeding when the court concludes that the interests of justice require representation. Thus, whenever a court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is indigent or that the interests of justice otherwise require representation of an indigent defendant the court must appoint one or more attorneys to defend him or her as soon as possible. A defendant does not waive the right to counsel by simply failing to request appointed counsel An attorney so appointed must represent the defendant until the charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved by the court or replaced by other counsel.

Each county with at least four county courts and four district courts may appoint a public defender to represent indigents. Moreover, certain other counties and judicial districts are authorized to appoint a public defender for each court or for the county as a whole.

It is common practice in Texas for judges to appoint two attorneys, rather than one, to represent an indigent defendant charged with a capital crime or a major felony. If the trial court appoints a single attorney at the outset, a pretrial motion may be used to request additional counsel. The right to counsel, whether retained or appointed, applies to proceedings other than those simply related to a determination of guilt or innocence of a criminal offense. For example, the right extends to probation revocation proceeding and extradition proceedings. It also applies to appellate and post conviction habeas corpus matters.

Choice of Counsel

The right to counsel gives rise to a no indigent's right to select counsel of his or her choice. Therefore, an accused must be afforded a fair opportunity to select and retain an attorney of his or her choosing. However, an accused's right to counsel of choice is not absolute, and it may not be manipulated to obstruct orderly procedure in the courts or interfere with the fair administration of justice.

Some of the factors that the appellate court will weigh in deciding if the defendant was denied the right to counsel of his or her choice when forced to trial with unacceptable counsel are as follows:

1. The length of the delay requested;
2. Whether other continuances were requested and the court's rulings on them;
3. The length of time that trial counsel had to prepare;
4. Whether another competent attorney was prepared to try the case;
5. The balance of convenience or inconvenience to the witnesses, opposing counsel, and trial court;
6. Whether the delay was for legitimate or contrived reasons;
7. Whether the case was complex or simple;
8. Whether the denial of the motion resulted in some identifiable harm to the defendant; and
9. The quality of the legal representation actually provided.

Under some circumstances, a defendant who has failed to secure counsel after being afforded a reasonable opportunity to do so may be forced to proceed without representation. A court may proceed with a matter in the absence of counsel when a nonindigent defendant, or an indigent defendant who has refused appointed counsel in order to retain private counsel, appears at a proceeding without counsel after having been afforded the opportunity to arrange representation. A court may take this action without securing a written waiver of counsel or appointing counsel. However, the defendant must have been provided with 10 days' notice that a dispositive setting was to take place.

Retroactivity of Right

The right to counsel is given retroactive application. This right as it retroactively applies attaches to every stage of the prosecution where substantial rights of an accused may be affected, including the appeal. Therefore, an accused who is imprisoned may be entitled to postconviction relief, such as habeas corpus, if he or she was deprived of the assistance of counsel at a critical stage of a former prosecution even though the law regarding the right to counsel was complied with at the time of trial.

The retroactivity of the right to counsel may also be significant even if the accused is not presently in custody because a conviction obtained in a former criminal proceeding where there was a violation of the accused's right to counsel is not properly admissible in a subsequent criminal proceeding. For example, an accused may prevent the prosecution from introducing a prior conviction that could otherwise be used for impeachment. An accused may also prevent a prior conviction from being used to support guilt or to enhance the punishment for another offense.

However, in a subsequent criminal proceeding an accused will not be able to prevent the introduction of a prior conviction obtained without counsel unless he or she can prove indigency or the absence of a waiver of the right to counsel in the former proceeding . If a prior judgment of conviction recites that the defendant was represented by counsel, there is a presumption that the defendant was represented by counsel during the proceedings up to the conviction. In addition, there is a distinction between the later use of an uncounseled conviction and the use of an uncounseled sentence. For example, although the use of a conviction obtained while the accused was without counsel is unavailable for enhancement, the fact that there might have been no attorney present at the sentencing does not render the underlying counseled conviction invalid for enhancement purposes. This same rule applies to the use of a prior conviction for impeachment. The fact that the accused was without counsel when probation was revoked does not mean that the counseled conviction placing the accused on probation may not be used for impeachment.

Hybrid Representation

Article 1, Section 10 of the Texas Constitution states that an accused in a criminal proceeding has the right to be heard by himself or herself or counsel, or both. Although the language of this provision would appear to grant an accused the right to represent himself or herself along with counsel, it has been held that this provision of the constitution does not expand or alter the right to counsel or in any way give the accused a right to such hybrid representation. Rather, Article 1, Section 10 affords the accused the right to testify at his or her trial and to be represented by counsel. Thus, there is no constitutional right in Texas to representation partially pro se and partially by counsel As a result, the trial court is empowered to reject a request for hybrid representation. In this regard, it has been held that a request for self-representation that is not accompanied by a waiver of the right to counsel constitutes a request for hybrid representation.

If the trial court approves a request for hybrid representation, a defendant may act pro se as well as through retained or appointed counsel. A defendant who requests and accepts hybrid representation may not later assert any claim about waiver of counsel.

In the absence of approved hybrid representation, a defendant who is represented by counsel has no authority to make tactical decisions contrary to those of his or her attorney. For example, it is trial counsel's prerogative to decide which witnesses to call. Moreover, a defendant who is represented by counsel is not entitled to argue personally without taking the witness stand.

If an accused has waived the right to retained or appointed counsel, a trial court has the discretion to appoint counsel to act as amicus curiae to represent the court during the trial in an effort to make sure that all of the accused's rights are protected. Such counsel may be directed to remain with the accused throughout the trial in an advisory capacity. This does not infringe on the defendant's right of self-representation as long as the defendant maintains actual control of the litigation and the jury's perception that the defendant is representing himself or herself is not destroyed. In such cases, the attorney is referred to as ``standby counsel.'' The proper role of standby counsel is quite limited. The defendant retains actual control over the case presented to the jury. Standby counsel is not empowered to substantially interfere with any significant tactical decisions, control the questioning of a witness, or speak in place of the defendant on any matter of importance. For example, standby counsel might explain basic rules of courtroom protocol or assist the defendant in overcoming routine procedural or evidentiary obstacles to the completion of some specific task that the defendant has chosen to undertake. If, however, the defendant agrees to or permits any substantial participation in the trial by standby counsel, subsequent participation by counsel is presumed to be with the defendant's acquiescence unless the defendant unambiguously requests that counsel be silenced.

When a defendant requests self-representation, the trial court should clearly admonish the defendant that there is no automatic right to standby counsel. However, the court should also inform the defendant whether the court intends to allow standby counsel. In fact, the court has the authority to appoint standby counsel over the defendant's objection. The only issue that might arise from such an appointment is whether counsel then interfered with the defendant's right of self-representation. Acceptance of the court's offer of standby counsel does not mean the defendant has waived a prior asserted right of self-representation.

Waiver of Counsel

Once an accused asserts the right to self-representation, it is incumbent on the court to ascertain if the defendant is making a voluntary, knowing, and intelligent relinquishment of the right to counsel. The court must advise the defendant about the dangers and disadvantages of self-representation. It has been suggested that the trial court should give the defendant a direct admonishment that he or she will be bound by the rules of evidence and procedure, and that no concessions will be made because of the defendant's lack of legal training. In addition, the court should specifically delineate some of the problems that the unschooled defendant may face by undertaking self-representation. These admonishments should include an advisement that there is no right to standby counsel.

The failure to make the defendant aware of the dangers of self-representation may invalidate a waiver of counsel. It is not sufficient to merely explain the trial procedures to the defendant and ask if he or she understands them.

After the trial court determines that a waiver of counsel is being voluntarily and intelligently made, the court ``shall provide the defendant with'' a written statement of waiver that the defendant may sign to waive the right to counsel. If the defendant signs the statement, it must be included in the record of the case. However, the Court of Criminal Appeals has held that a written waiver of the right to counsel is not required under the statute when the defendant affirmatively asserts the right to self-representation. The requirement of a written waiver of counsel in such cases would protect the right to counsel at the expense of the right to self-representation. Thus, the statute is directory rather than mandatory, so a court does not err in failing to secure a written waiver before permitting a defendant to proceed pro se.

The validity of any waiver of counsel is usually judged by determining if the record demonstrates that it was executed voluntarily, knowingly, and intelligently. This is most commonly done by analyzing the admonishments from the court and the defendant's responses to them. The overall record is considered in this regard; there is no specific type of information that is necessary to justify a court's finding of a waiver of counsel. Similarly, it is impermissible for the court to require a showing of any particular legal knowledge on the part of the defendant as a prerequisite for a knowing and intelligent waiver of counsel. The type of inquiry that must be made depends upon whether the defendant is merely seeking to waive counsel or wishes to waive counsel and concomitantly exercise the right of self-representation.

A waiver of counsel is a voluntary relinquishment of the right to counsel. Therefore, it is not proper to force a defendant to proceed without counsel because of external circumstances. However, actions by a defendant that are deemed to be disruptive may be considered as the functional equivalent of a waiver of counsel.

Moreover, after a defendant asserts the right of self-representation, the court may compel a defendant to make a choice resulting in the waiver of counsel. For example, when the court offers to let appointed counsel remain as standby counsel, but the defendant seeks to have a different person appointed as standby counsel, the court may refuse a new appointment and leave the defendant with the choice of proceeding to trial with unwanted counsel or proceeding pro se.

The information contained in this web site is intended to convey general information about David Finn, PC. It should not be construed as legal advice or opinion. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. Any email sent via the Internet to David Finn, PC using email addresses listed in this web site would not be confidential and would not create an attorney-client relationship.

read it and weep







Defendant DAMONS LOUISE (“Defendant ”) hereby moves this Court, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, to order the government to inquire about and make the following disclosures.


The Defendant respectfully requests that the Court order the government to inquire about and to disclose all materials, information, photographs, videos, recordings, records, notes, reports, electronic mail, communication and statements (herein referred to as “information”) known to the Government/State or which may become known, or which through due diligence may be learned from the investigating officers or the witnesses or persons having knowledge of this case, which is exculpatory in nature or favorable to Defendant or may lead to exculpatory or favorable material regarding either guilt or punishment. This includes, but is not limited to the following:

1. Information tending to indicate that Defendant is not guilty of the offenses alleged in the Indictments.

2. Information showing Defendant’s reputation for honesty, integrity, and/or trustworthiness.

3. Information showing the reputation for honesty, integrity, and/or trustworthiness, and/or any criminal record of any witness called by the State, including any complaining witness.

4. Names of any individuals who made an arguably favorable statement about the Defendant, or who indicated to law enforcement that Defendant is not guilty of the crimes alleged in the Indictments, or that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments.

5. Information which arguably could be helpful or useful to the defense in detracting from the probative force of the government’s evidence, including impeachment evidence, or which arguably could lead to such information, including information that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments. This request includes, but is not limited to, the following information, regarding any potential witness, informant or any government agent who has been involved in the investigation of this case:

(a) requests or statements by government agents or employees to any individual or corporation regarding the payment of defendants’ legal fees or expenses;

(b) prior convictions, arrests, misconduct, wrongs or bad acts;

(c) prior or subsequent inconsistent statements;

(d) instructions not to discuss the case with defense counsel;

(e) the mental, emotional, and physical history of Defendant, or any witness,

(f) the use of any lie detector or polygraph tests on any witness and the results;

(g) the use of narcotics or other controlled substances or alcohol;

(h) defect or deficiency of character for truthfulness, including but not limited to the complainant and officers involved in the investigation/arrest of Defendant;

(i) partiality, prejudice, bias, motive, interest or corruption;

(j) any defect or deficiency of capacity in any prospective witness to observe, remember or recount events;

(k) the existence and identification of each occasion on which each witness who was or is an informer, accomplice, or expert, has testified before any court, grand jury, or other tribunal or body;

(l) any benefit to individuals whatsoever in exchange for their cooperation, assistance or testimony, and any incentives paid, promised or discussed with the witness and the witness’s prior history of cooperation with law enforcement;

(m) a threat to prosecute if cooperation was not forthcoming;

(n)a promise or suggestion of leniency, compensation, assurance not to prosecute, or representations with respect to any uncharged misconduct;

(o) the immigration status of any potential government witness or informant who is not a United States citizen;

(p) any probation, parole, deferred adjudication, or deferred government or custodial status;

(q) any pending or potential criminal, civil or administrative investigations, legal disputes or transactions over which the government has real, apparent or perceived influence which could be brought against the witness or friends or relatives of the witness;


1. Disclosure of Materials.

The settled principles in Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976), and Kyles v. Whitley, 514 U.S. 419 (1995), instruct that the government may not suppress evidence favorable to a defendant either as direct or impeaching evidence. All documents and information which are exculpatory must be provided to the defense.

Courts have noted that the test is not whether the government attorneys believe the material to be favorable to the defense. Rather, it is whether the material “could fairly be construed as favorable to the defendant and material to the issue of guilt or punishment. . . .” United States v. Partin, 320 F. Supp. 285 ( E.D. La. 1970). Doubts as to whether certain items of evidence or types of information could be construed in the defense’s favor should be resolved in favor of their production to the defense. United States v. Perkins, 383 F. Supp. 922, 930 (N.D. Ohio 1974). Since material containing leads to possible exculpatory evidence must also be produced under Brady, the evidence itself need not be admissible at trial.

All information relating to the credibility of a witness clearly must be provided to the Defendant. United States v. Bagley, 473 U.S. 667 (1985). Under Rule 608(b) of the Fed. R. Evid., the court has discretion to permit a defendant to cross-examine a witness as to specific instances of misconduct -- so called bad acts. The purpose of such testimony is specifically to attack the witness’ character; therefore, the government should be ordered to disclose to the defense any behavior of government witnesses that might arguably constitute such bad acts.

Similarly, the government has an obligation to disclose any and all consideration which is held out to a witness, or which the witness objectively hopes for or anticipates, because such consideration directly gives rise to an inference of interest. United States v. Mayer, 556 F.2d 245 (5 th Cir. 1977). A defendant is also entitled to be advised of any matter which might cause a witness to color his testimony in favor of the government out of fear or interest in self-preservation. Thus, the government must disclose both the stick and the carrot. United States v. Sutton, 542 F.2d 1239 (4 th Cir. 1976). If the government possesses any information which might reveal that anyone became a witness in this case because of any pressure applied to him by any other federal law enforcement or regulatory body, the government should be required to disclose this information.

The evidence of any such representations, which have been made by the government or which the government will make at any future time, is discoverable pursuant to the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution; and the withholding of any such evidence constitutes a denial to a defendant herein of his constitutionally protected rights to due process and fundamental fairness in the criminal proceedings brought against him. Giglio v. United States, 405 U.S. 150 (1972); Brady, 373 U.S. at 85. Such evidence is not only exculpatory in the sense that it is legitimate grounds for impeachment of any witnesses the government may call to testify against the defendant, Williams v. Dutton 400 F.2d 797 (5 th Cir. 1968), cert. denied, 343 U.S. 1105 (1969), but also is discoverable by a defendant in order to show such witnesses’ bias or prejudice in testifying at trial. Davis v. Alaska, 415 U.S. 308 (1974).

2. Prompt Disclosure.

Moreover, the production of the requested material should be required promptly and not postponed for the following reasons:

If it is to be any use to him at all, common sense dictates that evidence in the Government’s possession favorable to the defendant should be made available to him far enough in advance of trial to allow him sufficient time for its evaluation, preparation, and presentation at trial. Otherwise, the trial might well have to be interrupted for an inordinate length of time until the defendant has had an opportunity to explore all the ramifications of the Government’s disclosure, track down distant witnesses, examine documents or the like. Such probable delay could sensibly be avoided by pre-trial disclosure in those cases where disclosure is called for.

United States v. Partin , 320 F. Supp. 275 ( E.D. La. 1970).

3. Request for Thorough Search.

The prosecutor in this case must search not only for his own files for Brady material, but also the files of other employees of the District Attorney’s Office, including any victim/witness contact personnel, whether paid or volunteers , and any other municipal, county, state or federal agencies involved in this matter, including the U.S. and Texas Securities and Exchange Commission, Texas Attorney General’s Office, Dallas Police Department, the Dallas County Sheriff’s Office, and the United States Department of Justice. See, e.g., Kyles v. Whitney, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the other acting on the government’s behalf in the case, including the police.”); United States v. Wood, 57 F.3d 733, 737 (9 th Cir. 1995) (holding that exculpatory material in the possession of the Food and Drug Administration (“FDA”) files was within the constructive knowledge and possession of the prosecutors because the FDA was involved in the investigation and the FDA was the agency charged with administering the statute at issue); United States v. McVeigh, 954 F. Supp. 1441, 1450 (D. Colo. 1997) (holding that, in their search for Brady material, prosecutors must “inform themselves about everything that is known in all of the archives and all of the data banks of all of the agencies collecting information which could assist in the construction of alternative scenarios to that which they intend to prove at trial”).


For these reasons, Defendant Loses requests that the government be required to produce all items enumerated in this Motion.

Dated: May 2, 2006 Respectfully submitted,

David Finn, P.C.


David Finn
2828 North Harwood, Suite 1950
Dallas, Texas 75201
Texas Bar No. 07026900
(214) 651.1121 (telephone)

Counsel for Defendant


The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served, via hand-delivery, upon all counsel of record, as identified below, on May 2, 2006:

Mr. Jeff Bray
Assistant District Attorney Workroom
Dallas County District Attorney’s Office
Dallas, Texas

David Finn


CAME ON for consideration Defendant Loses’s Motion for Production and Inspection of Brady Material and/or Information Which May Lead to Evidence and, upon consideration, the Court is of the opinion that said Motion should be granted.

SO ORDERED this ________ day of _________________, 2003.



Saturday, November 17, 2007

The State conceded error on appeal but claimed that the error was harmless. All error is harnful

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NO. PD-0230-06







Keller, P.J., delivered the opinion of the Court in which MEYERS, PRICE, JOHNSON, and HOLCOMB, JJ., joined. WOMACK, J., filed a dissenting opinion in which KEASLER, HERVEY, and COCHRAN, JJ., joined.

The trial court erroneously refused to permit defense counsel to ask a proper question during voir dire. The State contends that, depending on the circumstances, such an error may or may not be of constitutional dimension. Under our precedents, however, this type of error constitutes a violation of the Texas Constitution.


Through a question directed at the entire venire, appellant sought to inquire whether jurors could give effect to the law that prohibits them from considering, for punishment purposes, whether a defendant will ever be paroled. The State objected that the question was "improper voir dire," and the trial court sustained this objection. Defense counsel objected to the trial court's ruling, and appellant subsequently complained on appeal.

The State conceded error on appeal but claimed that the error was harmless. The court of appeals found that the error was constitutional in nature and that it was harmless. (1) Appellant filed a motion for rehearing, which was granted. Relying upon our decision in Rich v. State, (2) the court of appeals withdrew its first opinion and issued a second opinion, concluding that the error was not constitutional in nature and that it was harmless. (3)


A long line of cases has held that the "right to counsel" under the Texas Constitution includes the right to pose proper questions during voir dire examination. (4) A look at the constitutional provision and the older cases reveals that "right to counsel" is somewhat of a misnomer. The Texas Constitution provides in relevant part: "In all criminal prosecutions the accused . . . shall have the right of being heard by himself or counsel, or both." (5) Two of the oldest cases in this line of precedent, Carlis and Plair, describe the right to interrogate prospective jurors as falling within the "right to appear by counsel." (6) The suggestion seems to be that the right to ask questions is included in the "right of being heard," (7) which of course, would apply even to a defendant who was representing himself.

Plair further held that this right entailed permitting the questioning of each individual juror; it was not enough to merely permit a question to be directed to the panel as a whole. (8) In that case, defense counsel had questioned four or five jurors individually on three different topics, and the trial court believed that, if questioning continued at the rate it was going, counsel would require "much more than the whole day to complete the panel." (9) In an attempt to save time, the trial court prohibited counsel from directing these questions individually to the remaining members of the venire but, instead, directed those questions to the entire panel with an admonition that the questions were directed to each panel member individually "and for anyone to speak up and answer." (10) In holding that the trial court erred, this Court emphasized the right of counsel to assess a prospective juror's responses in light of individual questioning:

There is a certain degree of timidity and diffidence about some jurors that would be calculated to cause them to remain silent unless personally called upon to answer any questions. Again we think it clear that the right to appear by counsel carries with it the right of counsel to interrogate each juror individually to the end that he may form his own conclusion after this personal contact with the juror as to whether in counsel's judgment, he would be acceptable to him or whether on the other hand he should exercise a peremptory challenge to keep him off the jury. (11)

As can also be seen from the facts, the Plair Court seemed to be of the opinion that the trial judge could not himself make the decision as to how counsel was to use his time. Rather, the Texas constitutional right entailed permitting counsel (or a pro se defendant) to ask any proper question he wished of any individual venireman so long as the voir dire examination was "within reasonable limits." (12)

Although Rich analyzed error in refusing to permit the asking of a proper question as non-constitutional, it did so because the defendant did not contest the court of appeals's characterization of the error as such. (13) Thus, the court of appeals in this case erred in relying upon Rich for the proposition that the error was of the non-constitutional variety.

The State concedes that this Court has repeatedly held that the "counsel" provision of the Texas Constitution encompasses the right to ask questions during jury selection. Moreover, the State does not contend that the cases recognizing this right should be overruled. Rather, relying upon Potier v. State (14) and advancing a distinction between constitutional and non-constitutional issues, the State contends that the Texas constitutional right was not violated in this case. Although the dissent suggests that the cases recognizing a state constitutional right to ask proper questions were wrongly decided, we do not find it prudent to address that question in this case. The state constitutional right in question has been recognized for over ninety years. If the State wishes this Court to re-examine whether the Texas Constitution confers the right to ask proper questions in voir dire, it should raise this issue and afford this Court the benefit of an analysis of the issue and allow any party the opportunity to respond. Given the briefing and posture of the case, then, we do not here re-examine the caselaw to determine whether the Texas Constitution actually provides such a right. Instead, we concern ourselves only with the scope of the Texas constitutional right established in our caselaw. (15)

The State points out that, under Potier, not every erroneous exclusion of evidence amounts to a constitutional violation. (16) Rather, such exclusion rises to a constitutional magnitude only if the evidence forms such a vital portion of the case that it precludes the defendant from presenting a defense. (17) By analogy, the State argues that the refusal to permit a proper question in voir dire should rise to the level of constitutional error only if precluding the question effectively prevents defense counsel from rendering effective assistance. The State concludes that counsel was not rendered ineffective because parole was a peripheral issue in the case.

While the State's Potier analogy is facially appealing, it is ultimately unpersuasive. Potier grounded its holding upon the historical treatment given by federal courts to exclusion-of-evidence claims arising from the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. (18) However, the Texas "right to be heard" clause is separate from Texas's own compulsory process clause (19) (as well as the state "due course of law" provision) (20) and, as the caselaw discussed above shows, has a very different historical tradition. None of our precedents have drawn a connection between the Texas constitutional right to be heard by asking questions at voir dire and a generalized notion of effective assistance of counsel. Rather, the cases have more specifically focused on whether counsel had the opportunity to intelligently exercise for-cause and peremptory challenges. (21) And that opportunity is required to be afforded with respect to each individual juror and, if desired, after a personal examination. (22) Moreover, prior caselaw makes clear that the constitutional right to be heard requires permitting the (proper) question defense counsel wishes to ask, not the one the trial court believes adequately protects the defendant. (23) Analyzing the constitutional right in question as one of counsel's general effectiveness at trial is simply inconsistent with our past cases conferring upon counsel the constitutional right to make his own individualized assessment of each of the prospective jurors.

Not only is there an historical basis for distinguishing the compulsory process and due process protections from the right to be heard at voir dire, but there is also a substantive basis for the distinction. The right of compulsory process and the due process right to present evidence involve, of course, the right to present a defense, and so, a question about whether the proffered evidence was essential to the defendant's defense is appropriate. By contrast, the right to be heard at voir dire is a right to participate in the proceedings in a certain way. The denial of that participation is the constitutional violation, even if it is later determined that the defense was not compromised by that denial. Such a later determination would be relevant to a harm analysis but is not appropriate for determining whether this type of constitutional violation occurred.

The State's remaining contention is that a denial of questioning can be deemed constitutional or non-constitutional depending on whether the question's subject matter is constitutional or non-constitutional in nature. That contention flies in the face of the fact that the right to be heard is said to encompass questions for the purpose of exercising peremptory challenges. A question asked solely for the purpose of intelligently exercising a peremptory challenge would not even involve a statutory right much less one of constitutional origin. And the contention is inconsistent with the nature of the right, which focuses upon counsel's (or the defendant's) ability to participate in voir dire for the purpose of making his own individualized assessment of each of the prospective jurors. While there are certainly limits to how far the questioning can go in making an individualized assessment, (24) such an assessment (even from a "for cause" perspective) clearly goes beyond the ability of a prospective juror to adhere to constitutional requirements.

The judgment of the court of appeals is reversed and the case is remanded for further proceedings consistent with this opinion. (25)

Date delivered: April 4, 2007


1. Jones v. State, No. 01-03-00651-CR (Tex. App.-Houston [1st Dist.], Sep. 23, 2004)(not designated for publication).

2. 160 S.W.3d 375 (Tex. Crim. App. 2005).

3. Jones v. State, No. 01-03-00651-CR (Tex. App.-Houston [1st Dist.], Jul. 28, 2005)(on rehearing)(designated for publication, subsequently withdrawn, reinstated by 2006 Tex. Crim. App. LEXIS 851 (2006)). After appellant filed his petition for discretionary review, the court of appeals filed a third opinion, but we ordered that opinion withdrawn because it was untimely. Jones v. State, 2006 Tex. Crim. App. LEXIS 851 (2006).

4. Howard v. State, 941 S.W.2d 102, 108 (Tex. Crim. App. 1996); Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985); Powell v. State, 631 S.W.2d 169, 170 (Tex. Crim. App. 1982); Mathis v. State, 576 S.W.2d 835, 836-837 (Tex. Crim. App. 1979); De La Rosa v. State, 414 S.W.2d 668, 671 (Tex. Crim. App. 1967); Mathis v. State, 167 Tex. Crim. 627, 628-629, 322 S.W.2d 629, 631 (1959); Carlis v. State, 121 Tex. Crim. 290, 291-292, 51 S.W.2d 729, 730 (1932); Plair v. State, 102 Tex. Crim. 628, 629-631, 279 S.W. 267, 268-269 (1925).

5. Tex. Const., Art. I, §10 (emphasis added).

6. Carlis, 121 Tex. Crim. at 291, 51 S.W.2d at 730 (emphasis added); Plair, 102 Tex. Crim. at 631, 279 S.W. at 269 (emphasis added).

7. See Plair, 102 Tex. Crim. at 630, 279 S.W. at 268 (statute and constitutional provision provide accused with "the right of being heard by himself or counsel or both").

8. Id. at 629-631, 279 S.W. at 268-269.

9. Id. at 630, 279 S.W. at 268.

10. Id. at 629-630, 279 S.W. at 268..

11. Id. at 631, 279 S.W. at 269.

12. Id.; see also Carlis, 121 Tex. Crim. at 291, 51 S.W.2d at 730.

13. Rich, 160 S.W.3d at 577 ("The Court of Appeals found this to be non-constitutional error and applied Rule 44.2(b). Rich does not contest this conclusion, so we assume that to be the proper rule.").

14. 68 S.W.3d 657 (Tex. Crim. App. 2002).

15. See Rich, supra.

16. See Potier, 68 S.W.3d at 659.

17. See id. at 665.

18. See id. at 659-664.

19. See Tex. Const., Art. I, §10 ("shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor").

20. See Tex. Const., Art. I, §19.

21. See e.g. Carlis, 121 Tex. Crim. at 292, 51 S.W.2d at 730.

22. Plair, supra.

23. See Carlis, 121 Tex. Crim. at 291-292, 51 S.W.2d at 730 (trial court's question to the venire regarding whether any of the members had an acquaintance with the district attorney that would influence them in rendering a verdict could not substitute for counsel's desired question regarding whether any members of the venire were acquainted with the district attorney); De La Rosa, 414 S.W.2d at 671-672 (referring to "many cases" in which the constitutional right to be heard was violated where the trial court placed a limitation on the type of question to be asked or refused to permit a specific question).

24. See e.g. Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001)(prohibition against commitment questions that do not give rise to a challenge for cause)

25. The court of appeals's resolution of the harm issue on remand may seem a foregone conclusion since it has already found the error harmless under both the constitutional and non-constitutional standards. But since the court of appeals withdrew its opinion finding the error harmless under the constitutional standard, we will afford it the opportunity to address the issue.

Thursday, November 15, 2007

South Texas Judicial Watch Dog Authority: A Bill for the Creation of a Robstown Nueces County Constitutional Judge?

Now, Dick Cheney can shoot who he pleases and whenever he chooses to; after all was not Bo Hubert (John John's Consanguinity) one of the ones who covered the incident up for the inebriated Dick ?

South Texas Judicial Watch Dog Authority: I submit the legislation to be illegal, unconstitutional and in violation of election codes, government codes and a circumvention of trickery to spite the failed legislation that attempted (and failed) to create a new Judicial district in Kleberg & Kenedy Counties.

Sen Bill 1951 of the 80th Leg: 1 District Court with 2 District Attorneys no where else but the 105

Posted on November 14, 2007 at 11:52:34 PM by Jaime Kenedeno

Isn't that like having 2 Attorney Generals for the same state.

Can a County elect 2 County Attorneys

Can a County have 2 County Attorneys for the same county.

ADA's & ACA's are not elected nor are they appointed to serve by the Governor.

I submit the legislation to be illegal, unconstitutional and in violation of election codes, government codes and a circumvention of trickery to spite the failed legislation that attempted to create a new district in Kleberg & Kenedy Counties.

The legislation that created the New District Attorney Position in Kleberg & Kenedy County must be challenged.

There is only one district.

There can only exist 1 District Attorney per District.

"Anything else, would be uncivilized"

Senate Bill 1951 of the 80th Legislature

Political Bigomy After All Karl Rove is From Utah
Posted on November 15, 2007 at 00:41:33 AM by Jaime Kenedeno

Is it not illegal for two to be espoused to one?

Think we can legislate another Congressional Rep for the 27th Cong Dist to help Solomon with the "backlog" of legislation in the applicable counties.

The precedent has been created get busy and start exploiting it.

A Robstown Nueces County Constitutional Judge?

Create a County Constitutional Judge's office for both Robstown & Calallen/Annavile, and get Gov. Rick Perry to give the nod to Patti or Randolph Boothe or Sam Keech as first County Constitutional Judge of Robstown & Calallen/Annaville.

Political Bigomy After All Karl Rove is From Utah
Posted on November 15, 2007 at 00:41:33 AM by Jaime Kenedeno

Is it not illegal for two to be espoused to one?

Think we can legislate another Congressional Rep for the 27th Cong Dist to help Solomon with the "backlog" of legislation in the applicable counties.

The precedent has been created get busy and start exploiting it.

A Robstown Nueces County Constitutional Judge?

Create a County Constitutional Judge's office for both Robstown & Calallen/Annavile, and get Gov. Rick Perry to give the nod to Patti or Randolph Boothe or Sam Keech as first County Constitutional Judge of Robstown & Calallen/Annaville.

Potential Juror 26........
Posted on November 15, 2007 at 00:59:29 AM by d1

was told "Just trying to stay out of trouble"....LIAR...because If you were "you lied"!

Go back to Iraq where they need your kind of prosecution......I forgot your Farsi/Arabic sucks.

"Your Honor, I'm gonna have to spend the rest of the summer in the library"

More like the rest of your life......Your hate is well documented as you can READ English, do you understand/comprehend English?

TLR/Totally Live Recognition........Now, Dick Cheney can shoot who he pleases and whenever he choices to.

With you in his need to utilize Jaime Powell.
WATT is the Number of the Judicial District for this so called District Attorney
Posted on November 15, 2007 at 01:21:39 AM by Jaime Kenedeno

COUNTIES. (a) The voters of Kleberg and Kenedy Counties elect a
district attorney. The district attorney has the same powers and
duties as other district attorneys and serves the district courts
of Kleberg and Kenedy Counties.
(b) The district attorney shall attend each term and session
of the district courts of Kleberg and Kenedy Counties and shall
represent the state in criminal cases pending in those courts. The
district attorney has control of any case heard on petition of writ
of habeas corpus before any district or inferior court in the

(c) The commissioners courts of the counties comprising the
district may supplement the state salary of the district attorney.
The amount of the supplement may not exceed $12,000 a year. The
supplemental salary must be paid proportionately by the
commissioners court of each county according to the population of
the county. The supplemental salary may be paid from the officers'
salary fund of a county. If that fund is inadequate, the
commissioners court may transfer the necessary funds from the
general fund of the county.

The Legislation Failed but if you notice the language is the same
Posted on November 15, 2007 at 01:26:39 AM by Jaime Kenedeno

Sec.i24.567.ii423RD JUDICIAL DISTRICT (KENEDY AND KLEBERG COUNTIES). (a) The 423rd Judicial District is composed of Kenedy and Kleberg Counties.

(b)iiThe 423rd District Court shall give preference to criminal cases.

(c)iiIn addition to other jurisdiction provided by law, the 423rd District Court has concurrent jurisdiction with the county courts in Kenedy and Kleberg Counties and the statutory county court in Kleberg County over all matters of civil and criminal

3832 79th Legislature — Regular Session 79th Day

jurisdiction, original and appellate, in cases over which a county court has jurisdiction under the constitution and laws of this state. Matters and proceedings in the concurrent jurisdiction of the 423rd District Court and the county court or county court at law may be filed in either court and all cases of concurrent jurisdiction may be transferred between the 423rd District Court, the county court, and the county court at law. However, a case may not be transferred from one court to another without the consent of the judge of the court to which it is transferred, and a case may not be transferred unless it is within the jurisdiction of the court to which it is transferred.

(b)iiSection 24.207, Government Code, is amended to read as follows:

Sec.i24.207.ii105TH JUDICIAL DISTRICT ([KENEDY, KLEBERG, AND] NUECES COUNTY [COUNTIES]). (a) The 105th Judicial District is composed of [Kenedy, Kleberg, and] Nueces County [counties]. The court shall give preference to criminal cases.

(b)iiThe terms of the 105th District Court begin[:

[(1)iiin Kenedy County on the first Mondays in June and December;

[(2)iiin Kleberg County on the first Mondays in April and October; and

[(3)iiin Nueces County] on the first Mondays in February and August.

(c)iiThe judge, with the approval of the commissioners court, may appoint an official interpreter of the court [in Nueces County] who serves at the will of the judge. The official interpreter shall take both the constitutional oath of office and an oath that he will faithfully interpret all testimony in the district court as official interpreter. The oath is sufficient for his service as official interpreter in all cases in the court [in Nueces County] during the interpreter's term of office. The judge may also assign the official interpreter to assist the court's probation officer in the discharge of the probation officer's duties.

(c)iiThe heading to Section 43.148, Government Code, is amended to read as follows:


(d)iiSubsections (a) and (c), Section 43.148, Government Code, are amended to read as follows:

(a)iiThe voters of Kenedy, Kleberg, and Nueces counties [the 105th Judicial District] elect a district attorney. The district attorney has the same powers and duties as other district attorneys and serves all the district, county, and justice courts of Nueces County and the district courts of Kleberg and Kenedy counties.

(c)iiThe commissioners courts of Kenedy, Kleberg, and Nueces [the] counties [comprising the district] may supplement the state salary of the district attorney. The amount of the supplement may not exceed $12,000 a year. The supplemental salary must be paid proportionately by the commissioners court of each county according to the population of the county. The supplemental salary may be paid from the officers' salary fund of a county. If that fund is inadequate, the commissioners court may transfer the necessary funds from the general fund of the county.

(e)iiThe local administrative district judge shall transfer all cases from Kenedy and Kleberg Counties that are pending in the 105th District Court on September 1, 2005, to the 423rd District Court.

Thursday, May 26, 2005 SENATE JOURNAL 3833

(f)iiWhen a case is transferred as provided by Subsection (e) of this section, all processes, writs, bonds, recognizances, or other obligations issued from the 105th District Court are returnable to the 423rd District Court as if originally issued by that court. The obligees on all bonds and recognizances taken in and for the 105th District Court and all witnesses summoned to appear in the 105th District Court are required to appear before the 423rd District Court as if originally required to appear before that court.

(g)iiThe 423rd Judicial District is created September 1, 2005.

SECTIONi7.ii(a)iiEffective January 1, 2007, Subchapter C, Chapter 24, Government Code, is amended by adding Section 24.569 to read as follows:

Failed Creation of the 423rd District

Why did they try to create the 423rd Judcial District?
Posted on November 15, 2007 at 01:36:58 AM by Jaime Kenedeno

Sounds like how Hitler thought

Did they think they needed a new Judicial District to create the new District Attorney position?

We have here in this situation a District Attorney without a Judicial District.

Tell me I am wrong and back it up, any takers?

Saturday, November 03, 2007

"[A] false material statement is one that could probably have influenced the outcome' of the proceeding in which it is uttered.", DUH............

August 21, 2004

"[A] false material statement is one that could probably have influenced the outcome' of the proceeding in which it is uttered." People v. Rubio, no. F043941 (Cal.Ct.App. (5th Dist.) Aug. 18, 2004).

Holding: "We agree with Rubio’s argument that the 2003 version of CALJIC No. 7.20 incorrectly defines materiality. This instruction correctly informs the jury that a false statement must be material before the defendant can be found guilty of perjury. The instruction then defines a false material statement as one that 'could influence the outcome of the proceedings in which it is uttered.' We think the correct definition of a false material statement is one that 'could probably have influenced the outcome' of the proceeding in which it is uttered. (People v. Pierce (1967) 66 Cal.2d 53, 61.)"

The court rejected the argument that the error was structural, and affirmed, finding it harmless under Chapman.

Panel: Vartarbedian, Cornell, Dawson.

Posted by Jonathan Soglin at 03:12 PM in Perjury/False Statements | Permalink | Comments (0) | TrackBack
July 19, 2004

Two More Unanimous Cal. Supreme Court Decisions Today.

People v. Griffin, no. S029174 (death sentence affirmed after second penalty phase, which followed first appeal in which Court had remanded for new penalty phase because of error in giving Briggs instruction). (Author: George; unanimous.)

Kulshreshta v. First Union, no. S115654 (declarations signed under penalty of perjury outside CA do not satisfy Cal. Code Civ. Proc. sec. 2015.5, and are not admissible in summary judgment and other authorized proceedings, when contents are not certified as true “under the laws of the State of California”). (Author: Baxter; unanimous.)

June: 11 of 13 opinions unanimous.

July: 9 of 10 opinions unanimous.

Posted by Jonathan Soglin at 08:40 PM in Death Penalty, Perjury/False Statements | Permalink | Comments (0) | TrackBack
March 31, 2004

Fishy Fishing Filing May Result in False Instrument Prosecution.
Case: People v. Powers, no. A103622 (Cal.Ct.App. (1st Dist., Div. 4) Mar. 30, 2004)
Proceeding: Prosecutor's appeal of orders sustaining a demurrer to the complaint and denying the a motion to reinstate the complaint.

Holding: Reversed. A fishing activity report required to be filed under the Fish and Game Code and Department regulations is an instrument within the meaning of Penal Code section 115 and a fishing boat operator who files a false fishing activity report with the Department may be prosecuted under section 115 for knowingly offering a false instrument to be filed with a state public office.

Authoring Justice: Patricia K. Sepulveda

Posted by Jonathan Soglin at 10:27 PM in Perjury/False Statements | Permalink | Comments (0) | TrackBack