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In one of his plays, Shakespeare’s character says something like “the first thing we need to do is kill all of the lawyers.” Probably a lot of people have said or at least thought that before.

It’s especially true when we see news of a lawyer bribing a juror, or sleeping during a capital murder case. Make no mistake about it, there are sure some slimeball lawyers among us.

But that was not the basis for Shakespeare’s admonition. He was actually concerned because lawyers stand as the only barrier between the rule of law and chaos. One the first moves Hitler made in assuming total dictatorial power was to abolish the German legal system.

Why do people today decide to become a lawyer? Most people think it’s because of money and certainly most lawyers can make a good living in the practice of law. And there is no doubt that in many ways, practicing law has become much more of a business than a profession.

Most people with talent can still make a lot more money in normal business pursuits than in a law practice. So those who enter the legal system for the money have often made a serious mistake.

What the legal environment is supposed to do is protect the rights and freedom of all us from an oppressive government. As our country developed, so has the government bureaucracy and its impact on our everyday lives. In fact there is probably nothing we do that is not in some way affected by government rules and regulations.

Now just think about this for a moment. Whether a person is in business or dealing with personal affairs, there will come a time when they need legal assistance to assert or defend a claim or deal with some type of government regulation. It’s inevitable.

Even dying involves issues that often require legal assistance. There is literally no aspect of our lives that is not affected or influenced by legal issues. For example, when my neighbor’s dog barks all night; when the train blocks the roadway; when our property is taken at gunpoint; when a marriage fails; when the recently repaired roof leaks, and so on and so on.

We may not like it, but we sure can’t escape it either. The legal profession is set up to assist us in the issues we’ll confront at so many turns of our life.

And maybe more than anything else, lawyers and the rule of law help keep our government honest. Power is a serious temptation and unlimited power certainly corrupts. Lots and lots of lawyers are involved in the public service of making sure government does not unduly intrude on our personal lives.

We are so blessed to have a constitution that was designed to protect our rights and control an oppressive government. We have over the years developed a legal system that gives everyone the right to seek redress from perceived evils. And when we do that, we need lawyers to help us navigate the stormy waters.

Way back in early England, kings would often fight each other directly. One day some smart king recognized he could have a much better life if he could hire a knight to fight the other king. And of course the other king saw the light and did the same thing.

And thus began the origination of our legal profession. We hire a knight to fight our opponent’s knight. And in time the knights banded together to fight unjust actions of the king.

Let there be no mistake. We owe our freedom and the rights we enjoy to lawyers, like it or not. We have disputes, and the law is the method we use to resolve them. We have a system that certainly is far from perfect. But it’s the very best system on the face of the earth. And only with the continued influence of the Bar can we build a better society for ourselves and our children.

It’s easy to hate lawyers. And fun to enjoy disparaging lawyer jokes. But when we’re in a pinch and against the wall, there is no better person to have by our side than a competent and ethical lawyer.

Since we don’t live in a perfect world, we need to do whatever we can to improve our legal environment. And devoted, honest and honorable lawyers constitute the dike that can hold back the waters of tyranny.

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BASICS

The law on expunction of records is found in Chapter 55 of the Code of Criminal Procedure. It’s a short chapter, and the quickest way to understand it is to just read it.

Until recently, it could be said with confidence that expunction law was some of the simplest to be found. The legislature being what it is, that situation obviously could not remain for long, and in August of 1999, our good lawmakers decided to complicate things by amending the statute extensively, but only as to arrests or acquittals which occurred on or after August 30, 1999. The changes were by and large good ones, but the result is that a practitioner in the field will now need to maintain a copy of the prior law, and will need to determine under which law the incident in question falls, before it can be decided which rules apply.

Generally, a petition for expunction needs to carefully track the requirements of the statute. Chapter 55 is pretty specific as to the procedure for expunction. For example, Art. 55.02 Sec. 1.(b) (both versions) requires that the petition be verified. It’s surprising how often attorneys will neglect to do that.

That section also lists 16 separate items of information, which must be included in the petition. If any item is omitted, the statute requires “an explanation for why one or more [of the required items] is not included.”

One item is of special interest. Sec. 1(b)(8) indicates that all agencies holding records including “all central federal depositories of criminal records” should be listed. You are probably aware that criminal records are tracked through FBI records (NCIC). In Texas, the DPS keeps the same sort of records (TCIC).

When an arrest is reported in Texas, it goes into the TCIC computer, and also to the NCIC records, and at that time the person is assigned an FBI number. If DPS is not included on the list of agencies, they will not be made parties and the expunction order will not be binding on them. Moreover, the nice folks up in Washington who maintain the FBI (NCIC) records get their information on state records directly (and only) from the state agencies (in Texas, that is DPS Crime Records Service), so the FBI need not be served directly, despite the language in the older version of the statute (55.02 Sec. 1[b][8]). In fact, they just ignore anything they don’t get from DPS, so anyone who asks can safely be advised to save the service fees, and the clerk’s time. The FBI will just return the petition with a nice red stamp advising in bureaucratese what can be done with it.

WHERE CAN THE CASE BE FILED?

Art. 55.02 provides that a person entitled to expunction of records may file a petition in a district court for the county in which he was arrested. Even though a person is arrested in one county on a warrant for charges in another county expunction proceedings may ONLY be brought in the county of ARREST, not the county where the charges originated. Arrests from different counties may not be combined in the same petition, although theoretically a single arrest on multiple warrants from different counties could be (assuming it was the first arrest, and not a subsequent arrest for failure to appear). The likelihood of someone with multiple warrants qualifying for expunction of those arrest records, however, is probably slim.

WHO DO YOU REPRESENT?

When you are called upon to respond to a petition for expunction, it is very important that you do not do so for “The State of Texas”, even though as a prosecutor you customarily represent the State. In this case, DPS represents the State of Texas; the local prosecutor/government attorney only represents the local agency maintaining records. In your answer (court appearances), specify that you represent your office/agency ONLY; if you respond for the State, you may inadvertently prejudice DPS’s ability to oppose an expunction. Your local records may not contain all the information that DPS has about the petitioner.

DPS LEGAL DEPT AND EXPUNCTIONS

As previously noted, DPS maintains the TCIC, and they take the watchdog role very seriously. If DPS gets an expunction order in a case in which their records indicate that the expunction is not justified, and where they were not notified according to the statute, they WILL file a motion for new trial and make the court do it over again. If the local court fails to cooperate, they just file an appeal, and legend has its that they haven’t lost an appeal in recent memory. They may let some misdemeanors slide just because they are busy, unless the arrest is for drugs, or crimes of moral turpitude because such convictions are of consequence in future criminal proceedings.

DPS must also be properly notified of resettings. See Texas Dept. of Public Safety v. Deck, 954 S.W.2d 108 (Tex.App.-San Antonio 1997). You should read this one.

From a practical point of view, however, if DPS is not included on the list of respondents, the clerk will not send them a copy of the order expunging the records, and the record of the “expunged” arrest will remain in the TCIC/NCIC system. Ten years or so later, when the expungee applies for a gun license or for federal job and gets turned down based on a DPS or FBI records check, he will not be a happy camper.

The Texas Department of Public Safety is your best friend if you are ever called upon to represent your office in an expunction matter. They not only know their business, they are downright nice folks who will bend over backwards to help you. They can be reached anytime during Austin working hours (i.e., 8-4) at (512) 424-5841 or -5834, fax is 424-5666. Their proper mailing address for service is:

Texas Department of Public Safety

Crime Records Division

Box 4143

Austin, Texas 78765-4143

Mail Service Code 0234

WHAT IS AND IS NOT EXPUNGABLE

What is actually expungable is the RECORD OF THE ARREST. That includes anything that follows as a result of that arrest, including subsequent court records.

The reason for the statute is to protect people who have been wrongly arrested. Like all of our criminal law, in protecting the innocent, we also let some of the guilty slip by. The general rule is that any arrest that does not result in a prosecution (no indictment or criminal information is ever filed), is expungable. Even though somebody may be as guilty as sin, and the police had all the probable cause in the world to arrest, if for whatever reason there is no indictment or complaint filed, the arrest record gets wiped.

If the arrest results in a criminal information or indictment that is later dismissed, the result depends on whether the charge was a felony or misdemeanor. ANY MISDEMEANOR PROSECUTION THAT IS DISMISSED AND DID NOT RESULT IN A PROBATION IS EXPUNGABLE. No matter why it was dismissed. This does not include cases that are dismissed after successful completion of probation. That case will be discussed a little later.

If the arrest resulted in a felony indictment, the records can only be expunged if it has been dismissed and the court finds that it was dismissed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of dismissal to believe the person committed the offense or because it was void. There is a question as to what court makes that finding. If a felony case is dismissed for one of the listed reasons - the arresting agency really did get the wrong person, or the complaining witness turns out to have been lying all along, or whatever - BE SURE TO INCLUDE A FINDING that the case is being dismissed for one of the statutory reasons.

There is at least one appellate case involving a defendant who had been falsely accused of indecent conduct with a minor - there were reliable witnesses that there had been no physical contact whatsoever and the minor had been angry at having been disciplined and had threatened to “get even”, the police, and obviously the prosecutor also, just failed to properly investigate the complaint.

The judge gave an instructed verdict, but failed to include a finding on the reason for dismissal. The Court of Appeals said they were really sorry, but the statutory language was clear and binding. No court finding, no expunction.

On the other hand, if you really believe the case should be expunged, but the dismissal order failed to include the language, it can probably be done (legitimately) by having the court hearing the expunction make an affirmative finding tracking the language of the statute. But be sure the petitioner puts some kind of evidence justifying such a finding ON THE RECORD, or it may not withstand appeal.

A defendant is also entitled to expunction if he/she is acquitted at trial on after appeal.

BUT CAN YOU EXPUNGE A DEFERRED ADJUDICATION?

This is the most common misinformation out there. People, and attorneys, seem to think that deferred adjudication, not being a conviction, is expungable. If you read the statute, it clearly says that to be eligible, the arrest cannot have resulted in court-ordered probation under Article 42.12, Code of Criminal Procedure. Article 42.12 just happens to be where deferred adjudication is found (Section 5), as well as regular probation. There is plenty of case law on this point. If this is pointed out to a defense attorney, he/she will almost always see the light and back off.

NO EQUITABLE RIGHT TO EXPUNCTION

It is important to understand that this is a purely statutory remedy, and THERE IS NO EQUITABLE GROUND FOR EXPUNCTION. If the person doesn’t qualify under the terms of the statute, there can be no expunction. No matter how worthy the person is (or has become) or how sorry you or the judge may feel for him/her. See Smith v. Millsap, 702 S.W.2d 741 (Tex.App. 4th Dist. 1985, no writ).

WHO HAS THE BURDEN OF PROOF?

In an expunction, THE PETITIONER HAS THE BURDEN OF SHOWING HIMSELF ENTITLED TO THE RELIEF SOUGHT. That means he/she must present some evidence for the record. Often, it may simply by the petitioner’s testimony. If it is not opposed, then the burden has been met. If the petitioner does not meet the criteria, you may be able to simply elicit that from him on cross-examination. Often, a certified copy of court records will be sufficient. Occasionally, you may need testimony from an arresting agency, or from the prosecutor who was involved in a felony dismissal, to explain why the case was dismissed.

If the petitioner just presents the petition and makes some argument does not put on evidence, you may not technically need to present rebutting evidence, as petitioner has failed to prove the case, but from a practical standpoint it may be easier to go ahead and show the judge why the petitioner isn’t entitled to relief. It may save the trouble of an appeal. See Smith v. Millsap, supra.

WHAT DO YOU DO WHEN THE JUDGE IMPROPERLY EXPUNGES THE RECORD ANYWAY?

Judges being human, they will sometimes let sentimentality, or whatever, get the better of their judgment, and will order a record expunged that just doesn’t qualify. If you want it overturned, just call DPS. They will generally take care of it, unless it’s a really minor misdemeanor and they have their hands full with other things. In fact, you will find that DPS, if they have been properly notified, will often call you beforehand to see if you are opposing an expunction. And if you need help or case law, they can (and will) almost always fax whatever you need very quickly.

DPS will generally need your help in following up on things locally, however, and you can assist by doing things like promptly giving notice of appeal and requesting a transcript of the proceedings, if there was a hearing. (Yes, judges have been known to sign expunction orders without one.) DPS will also usually make a request for findings of fact and conclusions of law; you should do this also. Since this is all civil stuff, it may be foreign to a prosecutor who is accustomed to dealing with strictly criminal matters. Again, DPS will walk you through it. They will also carry the burden of the actual appeal.

The most important thing is to send (or fax) DPS a copy of any judgment you get, especially if you did not have prior notice of the hearing. Delay may hamper their ability to appeal.

SELECTED CASE LAW

The following case law may be helpful, or at least may provide a starting point for further research:

GENERALLY

The public has an important interest in arrest records being kept for use in subsequent punishment proceedings, including subsequent applications for probation. These records are valuable to document and deter recidivism. Harris County District Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991)

The court has no equitable power to extend the clear meaning of the statute. State v. Knight, 813 S.W.2d 210, 212 (Tex.App.-Houston [14th Dist.] 1991)

The right to expunction is neither a constitutional nor common law right, but a statutory privilege. Matter of Wilson, 932 S.W.2d 263, 265 (Tex.App.—El Paso 1996, no writ) (citing State v. Autumn Hills Centers, Inc. 705 S.W.2d 181, 182 (Tex.App.—Houston[14th Dist.] 1985, no writ).

Harris County Dist. Atty. v. Lacafta, 965 S.W.2d 568, 569 (Tex.App.—Houston[14th Dist.] 1997)

DEFERRED ADJUDICATION

Deferred adjudication probation under Article 42.12, Texas Code of Criminal Procedure, constitutes a “court ordered probation” for purposes of Article 55.01(2). See State of Texas v. Knight, 813 S.W.2d 210, 212 (Tex.App.-Houston [14th Dist.] 1991); see also Harris Co. Dist. Atty’s Office, et al. v. Dawson, 809 S.W.2d 359, 361 (Tex.App.-Houston [14th Dist.] 1991); see also Harris Co. Dist. Atty’s Office v. J.T.S., 807 S.W.2d 572, 573 (Texas, 1991).

A petitioner is not entitled to expunction merely for completing deferred adjudication probation and obtaining the consequent dismissal. Texas Dept. of Public Safety v. Butler, 941 S.W.2d 318, 321 (Tex.App.—Corpus Christi 1997); Harris County Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 572 (Tex.App.—Houston [1st Dist.] 1991); Ex parte Elliott, 804 S.W.2d 324, 325 (Tex.App.—Houston [1st Dist.] 1990?)

BASED ON DISMISSAL AFTER FELONY INDICTMENT

A State’s motion to dismiss because the complaining witness no longer wished to prosecute and signed a waiver of prosecution, (not uncommon in family violence and sexual abuse cases) is insufficient to show that the dismissal was made because of mistake, false information or similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense. See Smith v. Millsap, 702 S.W.2d 741 (Tex.App. 4 Dist. 1985, no writ).

Dismissal of an indicted felony for insufficient evidence to prosecute does not entitle a defendant to expunction of the record of his arrest. Harris Co. Dist. Attys. v. Pennington, 882 S.W.2d 529, 531 (Tex.App.—Houston [1st Dist.] 1994, no pet.)

Insufficient evidence to convict beyond a reasonable doubt does not support expunction.

Harris County Dist. Attorney’s Office v. M.G.G., 866 S.W.2d 796, 799 (Tex.App.—Houston [1st Dist.] 1993, no pet.)

[A]n absence of probable cause to effect a valid search and seizure does not vitiate the probable cause necessary for a grand jury to believe that a defendant is guilty of an alleged offense.

M.G.G., 866 S.W.2d at 799; Ex parte Kilberg, 802 S.W.2d 17, 19 (Tex.App.—El Paso 1990, no pet.)

In Wilkomirski v. Texas Criminal Information Center, 845 S.W.2d 424 (Tex.App.-Houston,[1st Dist.] 1992, no writ), a case where the evidence clearly indicated petitioner’s innocence of the charges against him, and in fact the dismissal was the result of an instructed verdict, the fact that the dismissal order failed to include the requisite finding still required denial of his petition for expunction. In writing its opinion, the court stated:

The expunction statute is written in the conjunctive. Appellant must satisfy both requirements: a dismissal and a finding that the dismissal was because of mistake or false information or other indications of the absence of probable cause. In interpreting the statute, nothing indicates that the legislature did not mean what it said, i.e., that both requirements were necessary for expunction.

We are sympathetic because the record suggests the indictment was apparently predicated on mistakes and false information that would satisfy the second requirement. However, as the appellant cannot meet both of the requirements of the statute, we are, regrettably, constrained to affirm [the judgment of the trial court denying expunction]. We leave the problem to the legislature for further consideration. Id., at 426-427. (Emphasis in original.)

The legislature has not chosen to amend the statute.

STATUTORY CONDITIONS MUST BE MET; NO EQUITABLE RELIEF

In Smith v. Millsap, 702 S.W.2d 741 (Tex.App. 4th Dist. 1985, no writ) it was held that

. . . The right to expunction is available only when all the statutory conditions of the article have been met, the court having no equitable power to extend the clear meaning of the statute. . . . Further, a statutory expunction proceeding is civil in nature rather than criminal, with the burden of proving compliance with the statutory conditions resting solely with the petitioner. Id., at 743.

See also Harris County Dist. Attorney’s Office v. D.W.B., 860 S.W.2d 719 (Tex.App.-Houston [1st Dist.] 1993, no writ); Texas Dept. of Public Safety v. Katopodis, 886 S.W.2d 455 (Tex.App.-Houston [1st Dist.] 1994, no writ)

DEFENDANT STILL SUBJECT TO PROSECUTION

ART. 55.01(a)(2)(B) requires that any charges resulting from the arrest in question be “no longer pending”. Although the burden generally is on the petitioner to show entitlement to the remedy of expunction, the burden is on the State to show that an unindicted defendant is still subject to prosecution. In Ex parte Aiken, 766 S.W.2d 580 (Tex.App - Dallas 1989, no writ), the court wrote

The express terms of article 55.02, section 4(a), require the State to bear the burden to prove that: (1) a petitioner is still subject to conviction for an offense arising out of the transaction for which he was arrested because the statute of limitation has not run; and (2) there is reasonable cause to believe that the State may proceed against him for that offense.

FROM A CASE UNDER OLD LAW SAYING UNSUPERVISED PROBATION

ISN’T REALLY PROBATION:

State v. R. B., 699 S.W.2d 296 (Tex App.-Dallas 1985), a case occasionally cited for the above proposition, was decided under a prior version of the expunction statute, which required that, in order to be eligible for expunction of records of an arrest, there must have been “no court-ordered supervision under article 42.13″. Courts will occasionally place probationers on “unsupervised probation”, and under that law, there was therefore no “court-ordered supervision”, making the arrest expungable.

Old Article 42.13 is now Section 5 of Article 42.12, and Chapter 55 now refers to “court-ordered probation”, not “supervision”. Unless you have a really old arrest (and these pop up sometimes), the issue of whether petitioner was placed under “court-ordered supervision” is irrelevant.

THE NUNC PRO TUNC END-AROUND PLAY

In Texas Commission on Law Enforcement Officer Standards and Education v. Watlington, 656 S.W.2d 666. 668 (Tex. App. -Tyler 1983, writ ref. n.r.e.), the appellee (Watlington) had, as a young man, been arrested and indicted for burglary. The court records indicated that he had thereafter waived his rights in writing, plead guilty and received a probated sentence, which was discharged a few months later.

Nearly twenty years later, the then-retired presiding judge testified at a hearing that any records of a guilty plea were in error; the circumstances of the original cases were such that young Watlington should not have been indicted and “the charges were dismissed and the boy did go into the Marines.” Thereafter, the original district court entered a judgment nunc pro tunc reciting that a mistake existed in the record of the 1958 judgment and ordering that it be set aside and expunged from the records of the court.

That order was appealed. Unimpressed by creativity, the appellate court reversed, holding

. . . The subsequent judgment nunc pro tunc . . . was void and ineffective to expunge the records of the conviction and probated sentence . . . Judicial errors, if any, in the rendition of a judgment may not be corrected by a nunc pro tunc proceeding. . . .

Appellee’s petition for expunction . . ., the court’s order granting such relief, and the findings of fact and conclusions of law filed by the court . . . all ignore Watlington’s guilty plea, felony conviction, probated sentence, failure to appeal and subsequent discharge from probation. Expunction is available only when all of the statutory conditions have been met. The remedy provided by the code was never intended to allow a person who is arrested, pleads guilty to an offense, and receives probation pursuant to a guilty plea to expunge the arrest an court records concerning the offense.

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By Cynthia A. Morales
Assistant District Attorney in Nueces County

Reprinted from The Texas Prosecutor journal with permission from the Texas District and County Attorneys Association. Visit www.tdcaa.com for more information.

A very wise, very experienced prosecutor once told me that the worst names he had ever been called—and he had been called many—had been by crime victims. As he expressed it: “They want me to fix something that no one can fix—the hole in their heart caused by the crime. And no matter what happens, indictment, conviction, sentence, even the death penalty, nothing can ever fix that hole. And I would tell them, believe it or not, I am on your side. It may not seem so, but I really am.”

This statement reflects a fundamental dilemma for most prosecutors. Anyone who has been prosecuting for a number of years knows our mandate to see that justice is done. But representing the State, not the victim, invariably leads to a delicate balancing act between crime victims’ wishes and prosecutorial duties and an occasionally uncomfortable alliance between prosecutors and crime victims. Keeping that balance, so that you can do the best job possible as a prosecutor, can be tremendously difficult.

Ask a hundred prosecutors how one should balance the relationship with a victim and the prosecution of a case, and you will get a hundred different answers.

Yet there is one fundamental step that we prosecutors could, and should, take to help both crime victims and our own prosecutions: knowing and respecting crime victims’ rights, which are already set out in Texas laws and the Texas Constitution and incorporating them into our prosecutions within the framework of our ethical duties. Most of us know that there is a crime victims’ bill of rights in Texas, but we are a bit fuzzy on the details. Because there are now designated victim assistance coordinators in every prosecutorial jurisdiction in Texas and the Code of Criminal Procedure gives them the specific duty of ensuring that victims are afforded their rights, it can be tempting to think, “The victim assistance coordinator has that covered; my job is to focus on winning this case.” Certainly, victim assistance coordinators do a fantastic job and inestimable work. But if we prosecutors don’t personally know what rights crime victims have and don’t personally make implementing those rights part of how we handle our cases, victims’ rights won’t be fully realized in Texas. Because aside from helping prosecutors keep on the “white hat” of “doing right” that is part of our chosen profession, incorporating crime victims’ rights into the prosecution of cases helps make cases stronger and helps ensures that justice is done.

The law
Under both Article I, §30 of the Texas Constitution and article 56.02 of the Code of Criminal Procedure, the two most significant pronouncements of crime victims’ rights in the state of Texas, it is the “attorney for the state” who has the primary responsibility for ensuring and enforcing crime victims’ rights in Texas. The Texas Constitution gives the “state, through its prosecuting attorney” the “right to enforce the rights of crime victims,” and article 56.02 more pointedly says that the “office of the attorney representing the state (along with other law enforcement agencies) … shall ensure to the extent practicable that a victim … is accorded the rights granted” in the article. Most of the notification provisions in chapter 56 specifically require that “the attorney representing the state,” “the attorney for the state,” or “the district attorney’s office” provide the required notice, information or explanation, and the victim has the specific right to have his or her victim impact statement considered “by the attorney representing the state in entering into the plea bargain agreement.”

Article 56.04, which establishes victim assistance coordinators, says that the duty of a victim assistance coordinator is to ensure that victims’ rights are afforded, but its language, especially in light of the language in other provisions in Chapter 56, can’t be read as creating an exclusive duty; indeed, the same statute requires the victim assistance coordinator to work closely with various entities, including prosecuting attorneys, to carry out that duty. But even if the letter of the law for most victims’ rights could be carried out by a victim assistance coordinator sending out materials and notices and explaining matters to victims, the responsibility under the law is clearly a collective one of a prosecutor’s office.

The practical reality
Though a prosecutor’s office generally has to rely on the hard work of its victim assistance coordinators for initial and primary contact with victims, some victims’ rights are best, or even must be (such as in considering the victim impact statement in plea bargaining) carried out by prosecutors themselves. Some victims’ rights, which are incorporated in other sections of the Code of Criminal Procedure apart from article 56.02—such as the right of certain victims to use a pseudonym in court documents, the right for victims to be present in the courtroom during proceedings despite “the Rule” (absent certain findings from the judge), the opportunity (at the prosecutor’s discretion) to provide victim character evidence and victim impact testimony at punishment, and the right to present a statement after sentencing —all directly affect the conduct and proceedings of a criminal case and would fall squarely in the province of the prosecuting attorney. A completed victim impact statement could affect a trial judge’s decision on an open plea, the terms of a plea bargain agreement (e.g., regarding restitution), and the conditions of probation. Notifying a victim of his pertinent rights applicable after the trial, such as the right to be notified of community supervision modification, revocation, and termination hearings and the right to be notified, be present, and provide a written or live statement at parole release hearings , could have a very real impact on the outcome of a community supervision case or release on parole. The exercise of a victim’s rights—before, during, and after the trial of a case—can have a direct and substantial effect on whether justice is achieved.

On a more fundamental level, it just makes sense for prosecutors to ensure that the victims in their cases are afforded their rights. If you have a victim who is informed and cooperative, your case can become better and stronger. Victims who feel included are generally more cooperative and helpful to your present case and in any cases they are involved with in the future. For many victims, the trial prosecutor is the face of the criminal justice system; how victims are treated and the opportunities for them to participate will affect their attitude toward the justice system well into the future, as well as their healing from the crime. Even something as simple as keeping in touch with a victim can make a tremendous difference. Making sure victims understand the system, their role, and your role, can smooth the relationship.

Even when a case is lost, if the victim receives an explanation of the process, is informed of settings and the progress, is given a chance to be present and involved to the extent consistent with the law and good prosecution, and is treated with understanding, respect, and courtesy, it is likely that these small steps will make the difference between a victim who comes out of the experience embittered and one who is pained but faces the result with calm resolution. Every step along the way, your treatment of the victim is going to affect your case.

For practical reasons then, as well as the responsibility placed collectively by the Texas Constitution and Chapter 56 on “the office of the attorney for the state,” being aware and respectful of crime victims’ rights is the right thing to do.

The ethical issues
Still, carefully implement victims’ rights within the context of the law and the special role and responsibilities of a prosecutor. A prosecutor represents the State, not the victim. Victims do not become a party to a criminal proceeding, and prosecutors cannot claim to represent them at trial, nor advocate for the jury to assess the punishment that the victim would want imposed.

In fact, a prosecutor must deal fairly and justly with a person accused, “no matter how repulsive” the defendant. Prosecutors have specific constitutional duties to defendants, such as the duty to disclose material mitigating, exculpatory, and impeaching evidence; to preserve and make available any favorable material physical evidence not otherwise available to the defendant; not knowingly introduce false testimony; and to correct any false testimony of which the prosecutor becomes aware.

In this context, it is clear that victims’ rights were provided to allow victims “the means to have access to and provide input into the criminal justice process—not to control it.” Both the constitutional and statutory Texas crime victims’ bill of rights specifically say that the victim does not have standing to participate as a party in a criminal proceeding nor contest the disposition of a charge. A crime victim’s rights are to be effectuated “within the criminal justice system” rather than “superseding or overriding it.”

Nevertheless, prosecutors do have ethical responsibilities—aside from their statutory duties under chapter 56—to crime victims. Although prosecutors clearly do not owe victims the duties outlined for clients in the disciplinary rules, victims would fall under the provisions of Rules of Disciplinary Conduct 4.01 (Truthfulness in Statements to Others) and 4.03 (Dealing With Unrepresented Persons). While most prosecutors would readily apply rule 4.01 (which would prohibit lying to the victim), rule 4.03 presents a duty most might not be aware of: to correct any misunderstanding an unrepresented person might have about your role in the case. In the context of a prosecution, this rule imposes an ethical responsibility to make sure the victim understands the prosecutor’s role, particularly the fact that the prosecutor is not representing the victim. To suggest or imply otherwise to the victim would be a violation of both rule 4.01 and 4.03. Similarly, to mislead a victim about a material fact or law would be a violation of rule 4.01, even if done in an effort to advance your case in the way you think best.

Other rules of disciplinary conduct could also affect a prosecutor’s relationship with a victim, namely, rules 3.01, 3.02, 3.03 (particularly (a)(5)), 3.04 (particularly (a), (b), and (e)), 3.07, and 3.09. Depending on the nature of your case, you may have to discuss some of the ethical constraints placed on you by these rules with your victim.

Ultimately, the key principle to ethically dealing with victims and ensuring the provision of a victim’s rights, is making certain that victims understand the role, rights, and responsibilities of prosecutor and victim. With that understanding in place, you can move forward to assist victims in ensuring their rights, within the proper context, while still retaining your own necessary independence to handle the case as justice requires.

Incorporating crime victims’ rights into prosecution
The best means to incorporate crime victims’ rights into the prosecution of criminal cases will vary from jurisdiction to jurisdiction and prosecutor to prosecutor, but here are some suggestions on how prosecutors and prosecutor’s offices might be able to better ensure that crime victims’ rights are being recognized and applied.

Prosecutors’ offices.

Training. Specifically focused training in crime victims’ rights and prosecutors’ responsibilities for them, as well as how to do so effectively and ethically, is important for a new prosecutor’s education, but refresher courses are also needed for experienced prosecutors. Both the Crime Victims Services Division of the Office of the Attorney General (www.oag.state.tx.us/victims/victims.shtml) and the Victim Services Division of the Texas Department of Criminal Justice (www.tdcj.state.tx.us/victim/victim-home.htm), which houses the Texas Crime Victims Clearinghouse, can provide resources and even conduct training for prosecutors. The Texas District and County Attorneys Association has also included crime victims’ rights training for prosecutors in some seminars.

Office policies. An office policy outlining each position’s relative responsibility is extremely helpful in establishing the responsibilities of the victim assistance coordinator, trial prosecutor, and appellate prosecutor. Prosecutors often have more direct access and information about what is going on in a case than victim assistance coordinators. Sometimes in smaller offices where the victim assistance coordinator has other office duties, the prosecutor may actually have more direct contract with the victim. In larger jurisdictions, it may not generally be feasible for prosecutors to have much contact with most victims, but there may be a few simple actions (such as relaying information to VACs) that would result in better compliance with crime victims’ rights. Every jurisdiction’s needs and solutions will be different. What is expected in terms of interaction and coordination of the VAC and prosecutor in the shared responsibility to ensure victims’ rights in your jurisdiction? How can victims’ rights best be ensured by your office as a whole? Establishing specific policies and procedures regarding roles and interaction, and educating staff about how prosecutors and VACs can work as a team, can go a long way in helping an office smoothly and effectively protect victims’ rights.

Individuals.
Educate yourself. Whether or not your office offers specific training or you attend a training on crime victims’ rights, educate yourself. Read the law. Learn your office policy. Talk to your victim assistance coordinator.

Develop a personal plan. Many trial prosecutors have a trial checklist they use in every case to make sure that important matters are taken care of as the case is prepared for trial, a plea, or another resolution. The checklist would be a good place to incorporate victim’s rights to the extent possible and practicable given your jurisdiction, the operation of your victim assistance coordinator’s office, and your own caseload. Victims’ rights could be added to an existing sequential checklist (e.g., various rights listed under “pre-arraignment,” “trial preparation,” “trial,” “post trial,” as appropriate), in separate thematic section (“Victim’s notifications/issues”) or in another manner suitable to the checklist you already have. Some things that could be added to a checklist:

• Make sure the victim has been contacted. Or send a personal letter in every injury case (or even every case) to the victim inviting cooperation in the case and informing the victim that he has rights as a crime victim.

• Talk to the victim about his rights during the initial interview and make sure that he understood the information from the victim assistance coordinator. Some people are too shy to say that they just don’t understand the written materials or the role of a victim assistance coordinator, and they trust only information “directly from the attorney.”

• Consider whether certain specific victims’ rights or protections (e.g., bond conditions, AIDS testing, use of pseudonym, etc.) are applicable to a case and take necessary steps where appropriate to enforce them.

• Check to see that a victim impact statement has been filed, and if not, follow up directly with the victim and emphasize the importance of a VIS on your case and in the future. Because most victim notifications utilize the information provided in the VIS, a victim who wants notice but fails to fill out a VIS will risk not being notified. Ask the victim to complete one, and check again before the plea or trial to make sure one has been turned in.

• Make sure the victim understands—and has ongoing explanations as needed—the trial and plea bargain process, has provided contact information, and is getting notified (whether by you or the victim assistance coordinator) of important dates and court settings as well as important case decisions and their consequences.

• Explain to the victim how to exercise relevant and important rights during and after trial, and help the victim exercise those rights where you can (e.g., presence in court, post-sentence statement). Make sure actions which the law specifically requires of a prosecutor related to victim’s rights are taken.

• Ensure that the victim understands his role in the criminal justice system as well as yours. This point is critical to fulfilling your responsibilities as a prosecutor and minimizes any misunderstandings or hurt feelings that arise from a victim thinking that you are “his attorney.”

Work with your victim assistance coordinator. Working in tandem with your VAC and facilitating your victim’s cooperation with the VAC is probably the best thing that you can do to ensure that your victim’s rights are provided. Walk the victim over to the coordinator’s office if need be. Don’t assume your victim is being cooperative already, and don’t assume your coordinator can do it all alone (though yes, they can work miracles sometimes!). Helping your VAC help your victim can help you win your case.

Conclusion
As prosecutors, our commitment to crime victims’ rights should be an important part of our professional dedication to seeing that justice is done. Making the effort to educate ourselves about crime victims’ rights and our own ethical and legal responsibilities, and committing ourselves to incorporating crime victims’ rights into our prosecutions, will make us more ethical—and more effective—prosecutors.

Endnotes

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By Warren Diepraam
Assistant District Attorney in Harris County

Reprinted from The Texas Prosecutor journal with permission from the Texas District and County Attorneys Association. Visit www.tdcaa.com for more information.

Texas is the deadliest state in the nation when it comes to DWI fatalities. Texas statutes designed to decrease the carnage on our roads have been effective to a degree, but many measures seem to have limited success in further curbing the number of fatalities. Public perceptions of how these crimes should be prosecuted has fallen victim to the “CSI effect”; jurors now have a somewhat glamorous view of what evidence is needed in a DWI prosecution. And the refusal of many DWI suspects to provide a scientific or chemical sample to a law enforcement agency after a DWI arrest is a significant problem in ensuring justice in Texas courts.

Theoretically, every person stopped for DWI in Texas should provide a chemical sample to a law enforcement officer. All Texas drivers have impliedly consented to provide a sample of breath or blood when it is lawfully requested by a police officer making a DWI arrest. However, roughly half of suspects refuse to provide a sample. For suspects, there are collateral consequences for refusing to provide a sample, such as administrative license suspensions, and for prosecutors,there are evidentiary consequences, such as admissibility of the subject’s refusal as evidence of guilt. Although these consequences are evident, the number of DWI arrestees refusing to provide a chemical sample has remained at roughly 50 percent.

As a result, some law enforcement agencies and prosecutors’ offices have begun to use search warrants to obtain blood samples when suspects refuse to submit to a breath test. We in the Harris County DA’s Office have formed a Vehicular Assault Team (VAT) to focus our energy on such cases, and earlier this year we established a new program, called “no refusal weekends,” to ensure full prosecution of these offenders and, more importantly, to decrease the numbers of fatalities suffered over holidays.
In Harris County, there have been an inordinate number of traffic fatalities during certain holiday periods when alcohol consumption increases: Memorial Day, Halloween, Christmas, etc. This has been noted as a nationwide trend and is addressed by NHTSA and others in both advertising and public information campaigns and in high intensity patrol or checkpoint programs. The loss of life associated with these dates causes a tremendous amount of grief to survivors for the remainder of their lives. A holiday season that should otherwise be festive suddenly becomes a reminder of death and tragedy. To combat this circumstance, we created a plan of action for a “no-refusal weekend” over Memorial Day, and took our idea to Chuck Rosenthal, our district attorney, who has been very supportive of our efforts to combat driving fatalities and quickly gave us approval to proceed.

Due to the overwhelming number of DWI cases in Harris County, we came up with procedures to streamline the process, to ensure both adequate handling of evidence and protection of suspects’ rights. Rather than have the arresting officer take the subject to one location to draft the warrant, then to a hospital or fire station to execute the warrant, we decided that all parties would be at one central facility and that normal DWI booking procedures should be followed. We also knew we’d need more help.

We discussed the “no-refusal weekend” concept with a local judge, Mike Fields of County Criminal Court No. 14, who volunteered to review the warrants for blood; local and national MADD representatives agreed to hire and pay for a nurse, Angela Biddle; and Paul Lassalle, the Houston Police Department DWI/Task Force liaison officer, handled the entire blood collection process after the suspect was released to him. I decided that we would need three prosecutors at the site to talk to the officers, prepare the warrants, and have them reviewed by a judge. Eric Kugler and Craig Feazel, both VAT members, joined me that night. Separating the workload minimized training of the arresting officers, who simply followed their normal routine.

Because the no-refusal weekend was a first for Harris County, we did not want to create additional evidentiary concerns. Primarily, we decided to ensure the admissibility of other evidence, such as the refusal and the station video, by following standard DWI procedure: The arresting officer would bring the offender to the Houston Police Department Central Intoxilyzer Facility (Central Intox). The officers would then be instructed to follow normal protocol, such as reading the statutory warning to the suspect, either obtaining a refusal or a breath sample, then videotaping the suspect. Therefore, if any problem arose with the warrant or the blood sample, the refusal and the video would be unaffected. When suspects refused to provide a sample, they were brought into another room that had been sanitized to hospital standards and quarantined so that access by others was limited. Although there is no requirement that the room be sanitized, as there is with a mandatory blood draw sample, we decided it would be better to follow this approach. The entire process was videotaped, from the reading of the statutory warning to the blood draw, which was important to minimize suspects’ claims of coercion or failing to follow proper procedures and would catalogue any statements for use at trial.

The search warrant was drafted in template form prior to the weekend, and Eric Kugler reviewed it. Its purpose was to speed the process of drafting the warrant to ensure that the blood sample was obtained as close as possible to the time of driving. (A prosecutor could also use a warrant from the TDCAA book by Richard Alpert, DWI Investigation and Prosecution.) A copy of the template warrant was then stored on the Houston Police Department DWI computers.

As Memorial Day approached, the people and procedures were in place. With preventing fatalities as our focus, we held a press conference whereby our DA, Chuck Rosenthal; Officer Lassalle; and a MADD representative announced that every person arrested for DWI over the weekend and who refused to provide a chemical sample would have a blood sample taken. We tried to get the word out as much as possible.

Unfortunately, many people failed to take notice of the announcement, and the first suspected drunk driver was soon brought to Central Intox. The officers had been previously instructed not to alter their normal process to minimize any admissibility issues with the refusal. We had a quick turnaround on the warrants, which was due to our preparation beforehand; additionally, having prosecutors and officers in the same room to discuss the details of the arrest for the warrant template was beneficial. (Contact between the suspect and the prosecutor drafting the warrant was kept to a minimum.) The prosecutor then faxed the warrant to the judge and called him via telephone. The officer would be sworn to the warrant, and the judge would sign the warrant and fax it back to Central Intox. A copy of the signed warrant was presented to the suspect with an admonishment that the police officer executing the warrant had authority to enlist civilians to obtain the evidence. At that point, the nurse would use a Betadine swab to prep the area and the blood sample was obtained. Although the results would not be available for a week pending analysis, the prosecutors working at Central Intox would accept charges on the case as a DWI Refusal. The entire process involving the suspect was documented by using one videotape for later use by trial the prosecutor and the lawyers defending the suspect.

Although the officers were reasonably attentive at following the protocol and not forewarning the suspect, the impaired suspects were probably not as quiet. A total of 12 blood samples were obtained that night, and three-quarters of them provided breath samples (up from the approximate 50-percent nightly average). The 25-point increase could have been a result of the arrestees communicating with each other or, theoretically, it could have been a coincidence. Therefore, long-term analysis of the compliance rate will be analyzed when the program has sufficient numbers. One thing is certain: On that particular night, every person arrested and processed at Central Intake provided a chemical sample one way or the other.

When the suspects appeared on the various dockets, a package was prepared and delivered to the trial court prosecutors. This package included a certified copy of the arrest warrant, a sanitization certificate with a business records affidavit, a chain of custody statement with a business records affidavit, and a caselaw/statutory citation packet that included court holdings and statutes on issues that may be raised by defense lawyers. After all blood and breath test results were obtained, they were also forwarded to the prosecutors. From the 12 people arrested that night who went through the warrant process, 10 tested well above the statutory limit in Texas: Results varied from 0.118 to 0.321, with an average of approximately 0.21! Of the two people who tested under the statutory limit, one tested at 0.073 but had also consumed additional impairing substances, thereby justifying the officer’s arrest decision. The other suspect, an immigrant laborer, received a result of 0.061 with no additional impairing substance in his system. This person would have been handled as a refusal and most likely would have been taken to trial. Although there is no presumption of sobriety for suspects testing below a 0.08 (and all results at or below this level should also be evaluated under the “loss of normal use” definition of intoxication), this person’s case was dismissed. Therefore, one person who may have been convicted was exonerated as a result of this process. The exoneration of suspects is also a noteworthy goal of this program, although from this period it appears that the officer’s arrest decisions were highly accurate.

The program was an overwhelming success. Police officers built stronger cases without having to do increased paperwork; prosecutors received evidence that should result in appropriate verdicts and sentences; criminal defendants are theoretically receiving a better evaluation of their cases from their lawyers; one underprivileged defendant was exonerated; and the public obtained a streamlined and efficient process to ensure strict compliance with DWI laws. We hope that with the expansion of this concept, traffic safety will be improved for the public as a whole.

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By John Ernest Boundy
Assistant District Attorney in Nacogdoches County

Reprinted from The Texas Prosecutor journal with permission from the Texas District and County Attorneys Association. Visit www.tdcaa.com for more information.

My life is a devilish dichotomy. At night I join millions of Americans in the delicious pursuit of crime-solving with “CSI” and its successful siblings in Miami and New York. But by day, I am a Texas prosecutor who doesn’t have Horatio Caine or Gil Grissom to woo a jury. Oh, to make a case in 45 minutes, without commercial break, with such a stunning array of technology and science as to leave the jury with no doubt of a defendant’s guilt!
We all know real criminal trials don’t work that way. I recently had a case that ended in mistrial because of jurors’ demand for fancy science and indisputable evidence, even though the law required neither. I hope this article helps other investigators and prosecutors with future cases.

The case
It was Friday, August 4, 2006, and it had the makings of a great day. Twenty-six-year-old Julia Thomas was celebrating her fifth wedding anniversary. Her aunt, uncle, and cousin had driven three hours from Louisiana to attend the party planned for that night. The rest of the weekend would be spent visiting family in the area.
Her uncle Kenneth DeSelle, a truck driver, dropped in that morning as he sometimes did on his way back to Louisiana from a haul. A little past noon, the others left to go visiting. DeSelle, after taking a shower, went to his truck and spent 20 to 30 minutes in the cab. (Though he was never tested and it can never be proven, I believe he was likely using methamphetamine; Julia says his demeanor changed completely after he came back from the truck, which is consistent with meth use.)

Around 12:30 p.m., Julia was in the kitchen making lunch for her 3-year-old daughter, Susan, and younger son. She heard a sound, and as she turned around, DeSelle charged her from the living room and demanded sex. He shoved Julia against the wall, and the two struggled. As she fought, DeSelle grabbed Julia around the throat and threatened to kill her and the kids if she didn’t stop screaming.

DeSelle then stuffed a baggie of white powder into her mouth and again demanded sex. He continued to threaten to kill if she did not comply.

Spitting powder, Julia sobbed, begging for an explanation. “Why are you doing this? You’re my uncle. That’s gross!” DeSelle responded by ripping the buttons off her pants, forcing them down. Julia started screaming again. Hearing the commotion, young Susan ran in. Crying and screaming, she began kicking and slapping DeSelle. “Please don’t kill my momma. Please don’t hurt her!” DeSelle elbowed Susan, knocking her backwards several feet into a cabinet. Turning back to her mother, he forced his right fist into Julia’s genital area before she found the strength to push him off.

Julia rounded up Susan and began throwing pots, dishes, and anything she could get her hands on. She screamed she’d call the law. As he left, DeSelle said, “Go ahead. The cops don’t scare me.”
Hysterical, Julia called Rachel Gray, her friend and cousin-in-law. Rachel in turn called 911 and immediately drove to Julia’s house as did her other family members after hearing about the incident.

Patrol Deputy Danny Kitchens responded to the 911 call. He saw the family crowded around Julia on the front porch as he arrived. Separating her from the rest, Kitchens tried to interview Julia, but she was hysterical. He called for investigators to respond to the scene.

EMS arrived. Julia refused to be touched by the male paramedic but agreed to be transported to the hospital only if a family member could ride along. Sheriff investigators Bill Ball and Larry Murphy arrived and photographed the home and those present. They returned to the sheriff’s office and contacted DeSelle’s employer. Using on-board GPS, they were able to track DeSelle’s truck and his whereabouts. After securing a warrant, DeSelle was arrested later that day in Louisiana.

Meanwhile, Deputy Kitchens went to the emergency room and again tried to interview Julia. While calmer, she still couldn’t relate the full events of the assault. They agreed Julia would come to the sheriff’s office the next day and provide a written statement, which she did.

Sandra Williams, a sexual assault nurse examiner (SANE) collected evidence and performed her examination. The evidence was sent to the lab for analysis. Because of the nature of the assault, no forensic evidence (i.e., semen) was present. Nothing scientific would help in prosecuting the assault.

When this case first hit my desk, it seemed, sadly, routine. No red flags went up for a need of additional forensic evidence or evaluation. I had a credible and very believable victim. The SANE nurse was competent and confident in the facts. The deputy was strong and would make a good witness. Finally, there was adorable and precocious Susan, the 3-year-old heroine who tried to help her momma during a brutal assault.

The trial
Julia’s testimony was as expected. She walked through a horrifying account of the attack. Nurse Williams ran through the exam and what she did as a sexual assault nurse examiner. Then Deputy Kitchens took the jury over his involvement from initial response to obtaining Julia’s statement the next day. Out of court, young Susan was playful and talkative; however, the thought of talking to 12 strangers made her withdraw. Her grandmother took the stand instead to explain my efforts to get Susan to testify, then brought Susan in and introduced her to the jury.

Because the sexual assault examination didn’t produce any usable evidence, no criminologist was called. Both investigators were tied up on other cases at the time of trial. Because their only actual involvement had been taking photos, they were not called either. And because the predicate for a photo is satisfied by any witness who has personal knowledge of the scene and recognizes the picture as an accurate depiction of the scene or event it purports to portray, the pictures of the scene and Susan’s injuries were introduced through Julia.

The defense presented a two-pronged attack. First, because Julia had told everyone from the paramedic to the police that the defendant had “shoved his whole fist in me,” defense counsel contested the physical findings as inconsistent: There were no vaginal tears or lacerations. Secondly, meth was found in Julia’s urine, and she had “lesions” on her face and body, so the defense alleged she must be a chronic meth user and was lying about the assault.

Because she was living in Louisiana after the assault, I talked with Julia many times by phone in the weeks leading up to trial. While admitting meth use after the assault, she adamantly denied it in the period beforehand. As for the “lesions” documented in the medical records, she explained she had acne and reactions to Clearasil. In my pretrial interviews with the SANE nurse, she confirmed Julia’s account of her acne and said she saw nothing consistent with meth use.

On cross-exam of Julia, the defense alluded to an alleged argument with the defendant the morning of the attack about drug paraphernalia she supposedly left on the kitchen table. Julia’s response was not only that there was no argument, but also that there was no kitchen table. She pointed to a picture of the kitchen that had been introduced showing no table present. That line of questioning was quickly abandoned. When defense counsel attempted to question Julia regarding meth use prior to the assault, the court sustained our objection on grounds of relevance. The defense then went through the EMS and medical records introduced by agreement, focusing on Julia’s recitation of the incident that the defendant had inserted his entire fist into her. Julia re-iterated her explanation from direct testimony that the defendant had rammed his fist into her genital area and that the intensity of the pain felt like the defendant’s entire fist was inside her.

With the SANE nurse, the defense pointed to the emergency room doctor’s reporting of “lesions” on Julia’s face and back. Inquiry about the nurse’s experience with “crank bugs” was allowed by the court. Then the defense meticulously went through the physical examination and findings. Counsel concentrated on the lack of tearing or laceration of the vagina. On re-direct, Nurse Williams testified there were no “crank bugs” and that the “lesions” were acne. Regarding the physical findings, Nurse Williams re-affirmed her direct testimony that the bruising of the victim’s inner thighs she saw and documented, as well as a lack of tearing or laceration, was consistent with the assault history. Although I had interviewed her twice prior to trial, on cross-examination for the first time, I learned Nurse Williams had taken photographs of Julia. She had not told law enforcement or me of their existence. They were safe—and useless—locked away in a cabinet at the hospital.
For their case, the defense called three witnesses: Dr. Brown, the emergency room doctor); Rachel Gray, the cousin-in-law Julia called after the assault; and Rhonda Lowe, Julia’s sister-in-law. Through Dr. Brown, defense counsel established the presence of meth in Julia’s urine and “lesions” on her face and back. On cross, the doctor was happy to state he had examined Julia prior to taking the stand and the “lesions” on her face were acne similar to what he had seen the day of the assault. Further, the presence of meth in Julia’s urine was consistent with the history of having ingested white powder believed to be meth during the commission of the assault (when her uncle shoved a plastic bag of white powder into Julia’s mouth to muffle her screams). Finally, the lack of vaginal tearing or laceration was also consistent with the stated history.

Witnesses Gray and Lowe were presented under TRE 608 to provide testimony of Julia’s reputation of truthfulness. Both stated they were familiar with her reputation of being untruthful. On cross, Ms. Gray admitted that in response to Julia’s call, she called 911 and frantically drove to Julia’s home. Ms. Lowe conceded that her brother, Michael, is going through a rocky divorce with Julia. She denied threatening, just the night before, to take Julia’s children in violation of a court order to prevent Julia from having custody.
For the injury to a child charge, Julia testified 3-year-old Susan cried after being hit and complained of pain in her right shoulder where she hit the kitchen cabinet. Pictures taken on the front porch following the assault showed redness and slight swelling to the child’s shoulder. The defense attacked that Susan had not been taken to the emergency room that day and that Julia did not have any medical record or bills for a subsequent doctor’s visit she testified taking Susan to days after the assault.

After closings, the jury began deliberations. The judge requested I begin working on a punishment charge because he felt a quick guilty verdict was coming.

Two hours later, the first note came out requesting information on when and where the defendant had been arrested. There was an immediate sinking feeling in the pit of my stomach. The jury was looking beyond the evidence and conducting an independent investigation. I could read their thoughts: They were looking for trace evidence. They had heard from Julia that she struck and tried to scratch the defendant. Then the deputy told them the defendant was arrested in Louisiana later the day of the assault. I knew they wanted to know if he had been forensically examined at the time of his arrest.

My fears were realized hours later when the coup-de-gras note entitled “Discrepancies that prevent a decision” came out. As I read it over, my head throbbed. (The note is reprinted here, directional.)

I didn’t have the pictures taken by the SANE nurse, a major source of irritation and self-flagellation. But Nurse Williams had testified to and the records documented Julia’s injuries. As far as police reports, I couldn’t explain that those are inadmissible hearsay. The jury had heard from the victim and had seen photos of the scene and the child victim’s injury. They listened to Nurse Williams correlate her findings with the assault. Yet they disregarded the court’s instruction to consider only the evidence before it. Instead, jurors conducted their own investigation in the jury room and decided what evidence would be necessary to reach a verdict. They even disregarded the defense’s theories in lieu of what they expected to see—save for the injury to a child charge regarding young Susan. There, the jury bit on the defense notion that there was no injury—even though the charge had standard language that bodily injury includes pain, illness, or any impairment. Although they had they had the mother’s testimony of Susan’s complaint of pain and the photographs, the jury wanted more proof.

Outcome
The jury hung, and a mistrial was declared. Because of the logistics involved with a new trial, we reached a plea bargain with DeSalle. The defendant pled guilty and accepted a 10-year deferred probation and lifelong sex offender registration.

“Techiness”
We all have faced the “’CSI’ effect,” which I now refer to as “techiness” in honor of Stephen Colbert. Because of “CSI” and similar shows, the public has a misguided notion that police can go to a crime scene, pick up a single piece of evidence, feed it into a computer, and in a matter of seconds, know who the bad guy is. While television creates the illusion of unequivocal black-and-white crime solving, it just doesn’t work that way in the real world. The public—our jury pool—has been fascinated by “CSI” and its successful spin-offs, but the backlash is that they have crossed over from entertainment to unrealistic juror expectations. That fictional combination of smooth police work and science, “techiness,” can sink a case if it’s not neutralized early.

To combat techiness, I start at the outset. During my investigation, I look at what forensic testing, if any, was done. Then I put on a “defense hat” to anticipate the cross of an investigator: What more could have been done regarding forensic testing and the general investigation? (Some inevitable questions from the defense include: Did you test for DNA? How about running the evidence through the mass spectrometer?) Obviously, we can’t anticipate everything, nor should we even TRY to run down every rabbit trail, but “case cleared” doesn’t mean we stop investigating. Because of techiness, remember that juries have an expectation of hard forensic data and are less likely to convict without it. The more we can think of what evidence they blissfully believe we SHOULD have, the better armed we are to give them a reality check.

In voir dire, I now ask in every case, “How many people watch ‘CSI’ or related shows?” I explain to the jury pool that there is no “CSI: Nacogdoches” and that Horatio and Gil are not on my witness list. I confirm their understanding of the difference between television fiction and real world investigation. It’s updating the old “Is one witness enough?” question for the techiness age.

Point out the illogic in some of jurors’ expectations for evidence. If you’re trying a burglary case, for example, ask about the number of burglaries in a year’s time in your jurisdiction. How many investigators are there to work that number of cases? What does the standard investigation consist of? What kind of time does a real investigation like that take? Is it realistic to dust every window on a building even if there is no indication the suspect was near that part of the structure?

In that vein, I also talk with my investigators before they take the stand. I explain what the jury is anticipating because of television fiction. I prep them that I’m going to ask, “Did you do this test or that test? Why or why not? Do we have the equipment to test for that? Does Dallas? Or Houston? Does that equipment even exist?” and so on.

If I have a criminologist, instead of just asking about the specific scientific method of whatever examination he performed, I ask more, though how much more depends on the case. I have him explain how many different instruments are used in various types of analysis. I also ask about the cost of such testing and who pays for it. Another reality check is how long it takes to get a result for various tests and how many submissions the lab generally receives in a given period of time. I ask whether techiness has had an effect on labs and if they are inundated with requests and demands to perform faster. Jurors are amazed that instead of the instant gratification of television, patient prosecutors wait months for results on drugs and forensic analysis. More amazing still is that there isn’t a single information database that can provide all the answers as on television.

And though I am generally loathe to introduce uncertainty about the system, jurors need to know that while TV tests are instantaneous and accurate beyond contestation, real-life testing is done by humans. There is always a chance of error in performing the tests; analyses are done by highly trained people, but people nonetheless. As such, their results are often open to interpretation.

The “sorry man”
In a hotly contested case where I anticipate forensics to be a centerpiece of the defense, I now consider calling a negative expert. It’s akin to a “sorry man” I employed when I was a kid; this “sorry man” (my best friend) would accompany me to tell my mother when I had done something wrong, the idea being: 1) he could help explain why I had done what I’d done, or in the alternative, 2) my punishment would not be as bad in front of a witness. During a trial, someone with the expertise to explain why there is no forensic evidence in a particular area acts as a “sorry man” for the jury and assures them that nothing is out of the ordinary in the case before them. Unlike television, real-life criminals aren’t always as accommodating in leaving behind a smoking-gun epithelial cell.
Using as much demonstrative evidence as you can muster—pictures, diagrams, models, summaries, charts, and event chronologies—can only bolster your case. Anything that brings a jury closer to the trial of their expectations is helpful.

To close things out in final argument, I rely on the standard charge language our jurisdiction has: “During your deliberations in this case, you must not consider, discuss, nor relate any matters not in evidence before you …” It’s pretty standard and only one sentence long, but it’s what I hang my hat on to pound home the point: Rely on the evidence before you, not what techiness you think should be there.

For those of you who want more science, technology, and law than any reasonable person should ever need, it’s just a mouse click away at www.ncstl.org, the home of the National Clearinghouse of Science Technology and Law at Stetson University. The site is funded by the National Institute of Justice and provides a searchable database of legal, forensic, and technology resources and a reference collection of law, science, and technology material.

Conclusion
While juries have become increasingly demanding and expectant due to techiness, that does not make our burden insurmountable. With a little preparation and education, we can help jurors come to a just and right decision based on the evidence before them. Or as a crime fighter of yesteryear would say, “Just the facts ma’am.” Thanks, Joe.

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By Andrea L. Westerfeld
Assistant Criminal District Attorney in Collin County

Reprinted from The Texas Prosecutor journal with permission from the Texas District and County Attorneys Association. Visit www.tdcaa.com for more information.

Television has taught us that with the magic words “You’re in contempt!” and the bang of a gavel, the offending person may be found in contempt for non-speech conduct and is hauled away by a bailiff to sweat out a night in jail and order is magically restored to the courtroom. The actual practice of contempt is, of course, not quite as seen on TV. In most courtrooms, contempt is much more rarely seen, and it entails more procedure than many think. Whether faced with the threat of contempt for actions in court or asked by the judge to assist in contempt procedures for a defiant witness, prosecutors should be aware of the basic procedural requirements of contempt law.

Classification
What sort of notice is required? Must a hearing be held? What rights does the accused have? Can you appeal? These questions all depend on what type of contempt is alleged. Contempt may be either direct or constructive, and either civil or criminal.

Direct vs. constructive contempt. The type of contempt most often featured on television is direct contempt, which involves disobedience or disrespect occurring in the court’s presence. Because the judge directly witnessed the offensive action, he may immediately punish the violator. Direct contempt stems from the court’s inherent power to punish violations in its presence.

By contrast, constructive contempt involves disobedience which occurs OUTSIDE of the court’s presence, such as failure to comply with an order. Because it occurred outside of the court’s presence, this type of contempt requires witnesses to be proven. The court is thus required to give the contemnor written notice, hold a hearing, and afford the contemnor the opportunity to call witnesses and defend herself against the charges.

Civil vs. criminal contempt. The most important classification of contempt is civil or criminal. Despite the name, this classification has nothing to do with the underlying case. Civil contempt may occur in a murder trial as easily as criminal contempt stems from a divorce. Rather, the classification is dependent on the purpose of the contempt: Civil contempt seeks to correct a violation, while criminal contempt punishes the violator.
Civil contempt is also known as “coercive” or “remedial” contempt because it seeks to remedy the violation of a court order. The purpose of the contempt is to persuade the contemnor to obey a previous order. This is the classic situation of a witness being jailed until he agrees to testify. The judge may assess a fine, imprisonment, or both, and the sentence may be determinate or open-ended. The only requirement is that the contempt is conditional—the contemnor may escape the sentence by complying with the court order. In this way, the contemnors are said to carry “the keys of their prison in their own pocket.”

Criminal contempt, on the other hand, is also known as “punitive” contempt because it seeks to punish a violation. The lawyer fined for swearing in court is an example of criminal contempt. It is unconditional—the punishment stands regardless of what the contemnor may later do to comply with the court order. Criminal contempt thus requires due process and a higher standard on appeal because of this punitive nature. Criminal contempt in Texas is punishable by a maximum fine of $500 and confinement for no more than six months. But each violation of a court order may be punished, so a lawyer could, for example, be sentenced to a $500 fine for each day he violated a discovery order.
Prosecutors should be particularly aware of criminal contempt, as it is considered a CRIME and can thus bar prosecution for the same conduct. If, for example, a person is found in criminal contempt for failure to pay child support, the State may not be able to prosecute him for criminal nonsupport for the same instances of failing to pay. The State should charge different dates than the contempt order to be sure not to run afoul of double jeopardy. Similarly, a person held in contempt for lying to the court may not subsequently be prosecuted for perjury for the same lie.

It is possible for a contempt order to be both civil and criminal if it contains elements of each. For example, a judge may jail a lawyer for three days for failing to comply with a discovery order and order him to remain in jail until he complies. The initial unconditional sentence—confinement for three days even if discovery is given immediately—is criminal contempt, while the conditional portion of the sentence—where the contemnor only remains in jail until the discovery is provided—is civil contempt.

Requirements of due process
No notice is required for direct contempt, whether civil or criminal, unless it is assessed against an officer of the court. This is due to the court’s “inherent power to punish” for actions occurring before it and because the contempt immediately follows offending behavior. But constructive contempt requires written notice of how, when, and by what means the party committed the alleged contempt. This notice can be in the form of a motion for contempt, a show cause order, or any other equivalent process. Furthermore, because this is a due process issue, merely following the standard rules of service is not sufficient. Sending a notice to the defendant’s home or to his attorney, serving notice by publication under the Rules of Civil Procedure, or even orally notifying him is not sufficient if the defendant can show he had no PERSONAL knowledge of the setting and was not purposely avoiding service.

The courts do not appear to have addressed precisely how MUCH notice is required. The only opinions that deal with a specific timeframe focus on failure to pay child support, which has its own 10-day notice requirement. In other situations, as little as three days’ notice has been held sufficient.

Due process must also be satisfied at the contemnor’s hearing. Contempt proceedings are quasi-criminal in nature—that’s true even for civil contempt because imprisonment is a possibility; thus they must comply with criminal standards of due process. A person is entitled to counsel at a contempt hearing and has the right against self-incrimination. But there is no inherent right to a jury trial. A person held in civil contempt has no right to a jury trial, and the right exists in cases of criminal contempt only if “serious” punishment is imposed. Serious punishment is confinement for more than six months or a fine greater than $500. This determination is cumulative, so a series of smaller sentences for multiple violations can be combined to amount to a “serious punishment.” Finally, the hearing requirement may be satisfied by affidavits. The court is required to give the contemnor “a meaningful opportunity” to explain his behavior, but it is not required to hold a live hearing.

Proof of contempt
Although the court’s power to punish through contempt is broad, contempt is meant to be exercised rarely and is presumed NOT to exist. Three elements must be satisfied to prove contempt: 1) a reasonably specific order, 2) a violation of the order, and 3) the willful intent to violate the order. To be specific enough to support a constructive contempt finding, an order must spell out the details of compliance in clear, unambiguous terms so that the person knows exactly what she must do to comply with it. Some courts have held that an oral order is never sufficiently specific; thus, only a written court order may support a constructive contempt finding. An oral order may support a DIRECT contempt finding, but it must still be clear what the court has ordered the person to do.
Noncompliance with an unambiguous order of which a person has notice raises the inference that the violation was willful. But a person is in contempt only if he has the ability to comply with the court’s order but chooses not to. A person may not, for example, be jailed for failing to turn over property not in his possession. But for this exception to apply, the inability to comply must be INVOLUNTARY. If a person puts himself in a position where he is unable to comply with the order, then he may still be held in contempt.

Appeal
There is no appellate process for contempt orders, but a contemnor may seek relief through a writ of habeas corpus. A writ will issue only if the contempt order is void, meaning it is beyond the court’s power or the contemnor was not afforded due process. A contempt order is beyond the court’s power if it violates the Texas Constitution. Notably, the Texas Constitution prohibits imprisonment for debt, so a contempt order based solely on a failure to pay a debt is void. This does not apply, however, if the failure is to pay child support or a criminal fine. In both cases, this is considered failure to perform a legal duty, not failure to pay a “debt.” If a person is held in contempt but not imprisoned, then he may be able to seek relief through a writ of mandamus. The standard is similar to a writ—the contemnor must show that he is unquestionably entitled to relief.

Other provisions
A person may not be released on any sort of bond from a contempt order. If the trial court permits a bond, then the person is no longer illegally confined and a writ will not issue. But if the Court of Criminal Appeals issues the writ, then it can order the contemnor released on bond pending the conclusion of its hearing.

There is a special provision, however, for officers of the court held in contempt; it applies to all four types of contempt. Officers of the court include attorneys, bailiffs, clerks, court reporters, and other similar officials. An officer of the court must be released on a personal recognizance bond pending a hearing to determine his guilt or innocence. He is also entitled to a hearing in front of a judge other than the offended judge. The presiding judge of the administrative district in which the contempt occurred must appoint another district judge to preside over the hearing. This is the only time a court other than the offended court is legally authorized to assess contempt. Because contempt is part of the inherent powers of the court, a court is otherwise not authorized to find a person in contempt for violating another court’s order.

A written order is required before a person may be confined for contempt, direct or constructive. If the contempt is civil, then the order must clearly lay out what is required to purge himself of contempt. But the court may order the person be detained for a reasonable time while the written order is prepared.

Conclusion
With luck, you will never have to use the information from this article. But if you do find yourself involved in a contempt proceeding, the following questions can help you quickly get a handle on the situation:

• Did the offensive behavior happen in front of the judge? Is the offender an officer of the court, meaning an attorney, bailiff, court reporter, etc.? If your answers are “no” and “yes,” respectively, then you need to fulfill all due process requirements.

• Was there a court order specific enough to support a finding of contempt?

• Did the offender have the ability to comply with the order? If not, did the offender put herself in the position of not being able to comply?

• Did the offender receive personal notice of the contempt charge and the ability to defend against it in some form?

This article is far from an exhaustive study of contempt, but it provide a good base of knowledge. Whether you are contemplating courses of action, have become involved in a hearing at a judge’s request, or hear those magic words—“you’re in contempt”—yourself, I hope this information will guide your next move.

Endnotes

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By Bill Bishop and Stephanie McFarland
Assistant District Attorneys in Travis County

Reprinted from The Texas Prosecutor journal with permission from the Texas District and County Attorneys Association. Visit www.tdcaa.com for more information.

Jennifer Cave was a 21 year-old Austin resident who had grown up and graduated high school in Corpus Christi. After high school, she enrolled in and attended classes at Texas State University in San Marcos, but Jennifer struggled academically and decided to move to Austin rather than return to college. She had several jobs in Austin, mostly as a waitress. Jennifer’s friends and family knew of her battle with drugs, her attempts to resist them, and how she kept going back to them.

Colton Pitonyak, a 22-year-old junior at the University of Texas, was a National Merit Scholar from a private Catholic high school in Little Rock, Arkansas. He had no criminal history from Arkansas, and his high school records were spotless. His father owned a farm machinery company, and his family lived in an upper-middle class neighborhood. He came to the University of Texas at Austin with scholarships and an admission into the business school, not an easy task for an out-of-state applicant. Colton had been charged with DWI and POCS while at the university, so his family was aware of his problems with drugs and alcohol. They did not appear to know that he was also dealing drugs, nor the extent to which his drug use had escalated during the summer of 2005.

The relationship between Jennifer Cave and Colton Pitonyak was never very clear. Those who knew Jennifer describe Pitonyak as her source for drugs. No one reported seeing them on a date, and no one reported that they ever held themselves out as a couple.

The crime
On August 16, 2005, Jennifer Cave, a 21 year-old Austin resident, showed up at a local law firm in response to a posting for a one-day filing job. The firm was so impressed by her enthusiasm that she was offered a full-time position with the firm to begin the next day.

That evening Jennifer talked to her mother, roommate, and ex-boyfriend, telling them how excited she was for her first day at the new job. At 8:30 p.m., in her pajamas, she said she was going to bed and asked her roommate to make sure she woke up in the morning. However, at about 9:30 p.m. that evening, she spoke to a friend, Michael Rodriguez, and told him she was going to spend some time with a friend named Colton, whom she said was having some problems.

Around 11:00 that night, Jennifer and Pitonyak saw several of Jennifer’s acquaintances on 6th Street, an area of clubs and bars in downtown Austin. The two groups joined together, sat down at a table at Treasure Island, and each had a couple of drinks. While at the bar, Jennifer talked to a couple of girlfriends and Colton Pitonyak flirted with one of them. He also made a call on his cell phone to set up the purchase of an 8-ball, an eighth-ounce of cocaine. Around midnight, the group decided to go across the street to Cheers Shot Bar. At the door of Cheers, Pitonyak pulled Jennifer away, and the two were last seen walking east on 6th Street.

Michael Rodriguez received a call from Jennifer at 12:08 on the morning of August 17, 2005. She told him that the only people who could help Colton were in jail. Michael said that she did not seem afraid or anxious, and she said she would call him back. About an hour later, Michael Rodriguez again spoke to Jennifer. She was describing Pitonyak as drunk and angry. Jennifer yelled at him while on the phone, “What are you doing? That is not my car!” and “Oh my God, he is pissing on that car.” Again, she did not want help or sound like she was afraid for her safety.

That was the last known conversation Jennifer had with anyone besides Colton Pitonyak. Sometime between 1:05 and 3:30 a.m. Jennifer Cave was shot and killed in Pitonyak’s apartment just west of campus. Pitonyak remained alone in his apartment with Jennifer’s body until his friend, Laura Hall, came over later that morning. Around nine that evening, Hall and Pitonyak left Austin for Mexico in Hall’s green Cadillac, leaving Jennifer’s body in the bathtub, her head and hands severed.

The morning after
The morning of August 17, 2005, Jennifer did not show up for her first day of work. The law firm called her cell phone several times and sent an office manager to her apartment to leave a note to call when she got home. Around 3:30 that afternoon, after not hearing from their new employee, Bill Thompson called Jennifer’s mother in Corpus Christi to advise her that her daughter did not appear for work.

Sharon Cave was very close to her daughter and typically spoke to her several times a day. Obviously, the news from the law firm was distressing. Sharon called T-Mobile, Jennifer’s wireless service provider, and asked about Jennifer’s cell phone activity on the account, which Sharon maintained for her daughter. Sharon then called the last three numbers on her daughter’s cell phone.

One of the people Sharon reached quickly was Scott Engle, Jennifer’s ex-boyfriend. She also attempted to reach Pitonyak, but he did not answer Sharon Cave’s call. When she reached Michael Rodriguez, Sharon was told about Jennifer’s calls the night before. While talking to Michael on her business phone, Pitonyak returned Sharon’s call on her cell phone. Pitonyak told Sharon that he had not seen Jennifer. Michael Rodriguez, still on the office phone, immediately told Sharon that Pitonyak was lying to her.

In Austin, Pitonyak had already gone to great lengths to cover up Jennifer’s murder. At three in the morning, less than two hours after Michael Rodriguez last talked to Jennifer, Pitonyak went to the apartment of Nora Sullivan, several doors down from his own. While there, he told Nora a rambling tale about being in a gunfight with at least two Mexicans and claimed that he fired two shots and may have hit someone. He removed the magazine from his gun and asked Nora if he had blood on him. She pointed out a small smear on his arm that appeared to be blood.

Pitonyak’s cell phone records showed that he exchanged text messages with Laura Hall after leaving Nora Sullivan’s apartment. Although the content of text messages is not retrievable in phone records, one of the messages remained on Colton’s cell phone when it was recovered. That message from Laura Hall read “What do U mean.” The text messages were followed by a 13-minute call between the two at 6:00 a.m.

About the same time that the law firm called Sharon Cave about Jennifer’s absence, Pitonyak was in Breed’s Hardware, about a half-mile from his apartment. In the hardware store, he asked for a saw to cut up a turkey he was frying. In addition to the 8-inch hacksaw, his receipt showed that he bought safety masks, ammonia, and other cleaning products. The surveillance video from the hardware store showed that he was alone. Another receipt in the apartment showed that he stopped at Burger King on his way home.

Around 6:30 in the evening of August 17, Scott Engle called Pitonyak. He asked about Jennifer’s whereabouts and confronted him with the fact that he was the last person to see her. Pitonyak said repeatedly that he had not seen her and ended the phone call by saying, “That bitch is going to get me arrested.”

At 8:34 p.m. the same night, Pitonyak again talked to Sharon Cave in response to her persistent calls. He said, “Dude, I am eating pizza with my friends,” and again insisted that he had not seen Jennifer since the night before. Sharon told Pitonyak that she had contacted the police and that they were going to his apartment.

Pitonyak’s cell phone records revealed that shortly after that call, his cell phone was traveling south on Interstate 35. He attempted numerous calls, with the tower hits showing a clear path from Austin to Del Rio on the Texas-Mexico border. Surveillance video later showed that Pitonyak and Hall crossed at the international bridge into Acuna at 2:41 a.m.

Desperate to find Jennifer, Sharon Cave and her fiancé, Jim Sedwick, came to Austin on August 18. Before they got to town, they heard from a missing persons detective with the Austin Police Department that Jennifer’s car was parked on the street outside of Pitonyak’s apartment. They went to the apartment and repeatedly banged on the door and windows calling for Jennifer. Officers from the Austin Police Department arrived, only to tell the distraught family that they could not enter. After the last officer left the scene, a locksmith was called, but he couldn’t open the deadbolt of the apartment. Feeling they had run out of time and fearing for Jennifer’s safety, Jim Sedwick entered the apartment through a window that they had managed to unlock.

As Jim Sedwick walked through the dark apartment, he had no idea what he was about to see in the bathroom. He did not stay long enough to fully comprehend that his fiancée’s daughter was not only dead in the bathtub, but her head and both hands had been severed from her body and lay in a bag on the floor next to the tub. Once he saw Jennifer’s body, he immediately left the apartment and called the police. He knew he had to prevent Sharon Cave from entering the apartment, even when it meant physically restraining her.

Pitonyak’s apartment was cleared by APD officers and sealed until a search warrant was signed. In many ways, it was a typical college male’s apartment except for the immaculate kitchen, two shell casings on the coffee table, and the mutilated body in the bathtub.
The autopsy revealed that the cause of death was a single gunshot, through the right arm, into the torso and lacerating the aorta before lodging just under the skin of Jennifer’s left back. The other findings were grotesque: The head and hands were severed from the body, there were multiple post-mortem stab wounds to the chest and neck, and there was a bullet against Jennifer Cave’s skull that was fired into the head through the severed neck. The shell casing for that shot was discovered in the bathtub only after the body was moved by the medical examiner.

Police quickly discovered that Pitonyak’s vehicle was still parked beneath the apartment complex. A search revealed a Smith and Wesson .380, which was later determined to be the weapon that fired all three casings in the apartment, as well as the two projectiles removed from Jennifer’s body. Also in the vehicle was a road atlas, which was missing the page for southwest Texas.

As his apartment was searched, Pitonyak was in Piedras Negras, Mexico, partying with Hall. They went with the clerk of the CasaBlanca Hotel to watch the Ultimate Fighting Championship, and Pitonyak inquired about extradition and the possibility of selling Hall’s Cadillac to go further into Mexico. Crimestoppers tips led officials to their location, and Mexican authorities removed Pitonyak to the custody of United States Marshals at the international bridge in Eagle Pass.

Pre-trial
The first stage in our prosecution was preventing the exclusion of evidence found during Jim Sedwick’s entry into Pitonyak’s apartment. Although there was certainly no constitutional violation, Article 38.23 of the Texas Code of Criminal Procedure disallows the use of evidence discovered as the result of a violation of the law by any person. Caselaw has allowed for the fruits of apparent theft if the items were taken with the intent to turn them over to law enforcement, but none of those cases covered evidence discovered as the result of criminal trespass.

The State argued that the evidence should not be suppressed on three grounds:
1. Jim Sedwick’s actions were the result of exigent circumstances that would have allowed entry by law enforcement. The facts as Jim Sedwick believed them at the time of entry warranted his entry as immediately necessary to cure harm or prevent future harm. This argument was new ground because the emergency doctrine has not been applied to non-state actors.

2. Sedwick’s actions, although they meet the elements of criminal trespass, were non-criminal by reason of the justification of necessity under §9.02 of the Penal Code. For pre-trial purposes, the judge was the factfinder charged with determining if Jim Sedwick was entitled to this affirmative defense.

3. Finally, the State presented evidence of and argued that suppression was not appropriate because of inevitable discovery (if that doctrine were applicable in Texas). Specifically, homicide detectives testified that the apartment had an odor of decay during their search. They further stated that based on training and experience, neighbors would be reporting the odor within 72 hours. During that time period, Pitonyak was in Mexico, having made no effort to return to his Austin apartment. We believed that inevitable discovery is an issue that must be re-examined by the Texas Court of Criminal Appeals.
The court denied the motion to suppress on those three grounds, making a specific finding that inevitable discovery would apply if recognized in Texas. This finding will negate the need for a future remand to the trial court if the doctrine is later recognized.

Brainstorming defenses
The process of trial preparation, beyond the normal fact gathering, consisted of many hours of brain-storming to determine what the defense would argue. One obvious strategy the defense might choose was to implicate Laura Hall in the murder. Swabs of the murder weapon contained a mixture of DNA, and neither Pitonyak nor Hall could be excluded as contributors. Hall’s alibi witnesses were initially uncertain regarding exact dates when police interviewed her, so the State had to consider Hall a wildcard. She and Pitonyak’s relationship appeared to be one-sided: Laura was in love or obsessed with Pitonyak, a feeling he did not appear to return. We anticipated that she would be called by the defense and take the Fifth, but we could not be certain. Of course the State had to explore any angle the defense might use to claim self-defense, accident, or mistake. We knew that when the jury saw the defendant, he would present as a clean-cut, handsome young man. If he testified, we were sure that he would be articulate and well-prepared for cross examination.

To force the defense’s hand, we charged Pitonyak only with murder. The inclusion of lesser-included offenses would provide defense arguments more credibility and give soft jurors an out. Charging only murder put the onus on the defense to produce evidence of what happened between 1:05 a.m. and 3:00 a.m. if Pitonyak wanted a charge on manslaughter or criminally negligent homicide.

The trial
We knew that the case of State vs. Colton Pitonyak would be well-attended by local media, but it was the Friday afternoon before trial when the State was notified that CourtTV would also be present bright and early Monday morning to set up its equipment. Despite the need to make some adjustments for more microphones on our counsel table, the State made a conscious effort from voir dire on to try this case for what it was: a straightforward murder. The gruesome dismemberment of the victim’s body and the defendant’s flight to Mexico had brought national media to the courtroom, but we had to focus on the facts that proved beyond a reasonable doubt that Colton Pitonyak intentionally and knowingly shot and killed Jennifer Cave in the early morning hours of August 17, 2005.

As early as voir dire, Pitonyak’s attorneys said that he would testify. In the defense opening statement, the jury was told that Pitonyak would testify that he did not remember what happened that night. Even more surprising was the revelation that the defense was conceding that no one else was at the apartment and Laura Hall did not arrive until the next day—after Jennifer Cave was dead.

The State’s case was presented in a very straightforward manner and proceeded quickly. One issue we had wrestled with prior to trial was how to present the very disturbing photos of the crime scene and autopsy. It was important that the jury could see the true horror of this crime, but at the same time we did not want to overwhelm them. We went through all the photographs carefully a number of times, culling them until we could articulate a succinct argument stating how each photo was crucial to the presentating our case.

The defense attorneys spent all of their energy attempting to confuse motive and premeditation with intent. They presented evidence that the murder weapon has no a safety and no indicator that a round is in the chamber, even if the magazine is removed. At about midpoint at their case’s presentation, the one person everyone had been waiting to hear from testified. Pitonyak said that he had no reason to murder Jennifer and would never have intentionally or knowingly hurt her. He also testified that, although he went to Breed’s Hardware, Laura Hall did all of the mutilation of Jennifer’s body.

On cross examination, any question as to the time period around the murder was answered with an “I don’t remember” or an “I don’t know.” All along, the State felt it would be important to expose the other side of Pitonyak’s personality, the one that lurked beneath his boy-next-door look and upbringing. During his testimony we were able to present to the jury Pitonyak’s other face, the one that admired the drug and gangster lifestyle. The defendant admitted to screen names of “Cmoney” and “Ilovemoneyandhos”on his Facebook profile. We also showed that his favorite movies were DONNIE BRASCO and GOODFELLAS, both of which contain scenes of body mutilation. On his coffee table was a “Sopranos” DVD where Tony Soprano dismembers a murder victim in a bathtub, then removes his head and sticks it in a bowling ball bag. In his apartment the police had found toy guns that were very realistic. The defendant had also done computer searches looking at different types of guns. The large SCARFACE movie poster hanging in his kitchen began to take on new meaning, as the defendant admitted to dealing drugs and how he came to possess the murder weapon. Colton told the jury that a friend wanted to borrow his car after giving Colton a tattoo and left the gun in the apartment as collateral. He further testified that this particular gun had been used in the past as payment and collateral in drug transactions.

At the conclusion of the evidence, the defense argued that the testimony about the gun and the lack of motive or premeditation warranted charging the jury on the lesser-included offenses of manslaughter and criminally negligent homicide. However, the court agreed that the defendant’s testimony—that he did not remember what happened—was not evidence that warranted those instructions. In their closing arguments the defense attorneys tried to distance the defendant from Jennifer’s mutilation by placing the blame on Laura Hall. They repeated their mantra that Pitonyak had no motive to murder Jennifer and attempted to confuse the jury about the meaning of intent.

The jury was out just over an hour before finding Pitonyak guilty of murder. Following powerful victim impact testimony from Sharon Cave, when she tearfully told the jury of the devastating effects of Jennifer’s brutal murder on the emotional and physical well-being of her family and friends, the State rested its punishment case. The defense put on a number of Pitonyak’s high school friends, coaches, and teachers. In addition, his parents testified. His mother begged the jury to spare her son because “he is such a good man.” All blamed Pitonyak’s heinous actions on the influence of drugs and alcohol.
The jury deliberated about two hours before sentencing Pitonyak to 55 years in prison. The State had argued for life, but Sharon Cave and her family viewed the sentence as five years short of the maximum and were glad to see that the jury did not give credit to the defense’s arguments minimizing Pitonyak’s culpability.

Laura Hall is currently charged with hindering apprehension, and the State is considering adding a charge for tampering with physical evidence based upon statements she has made since her return from Mexico. Her trial has not yet been scheduled.

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By Lucy Cavazos
Assistant District Attorney in Kerr County

Reprinted from The Texas Prosecutor journal with permission from the Texas District and County Attorneys Association. Visit www.tdcaa.com for more information.

On April 27, 2005, David Holland, a Kerrville resident, reported to the Kerr County Sheriff’s Department that several of his checks had been forged. The case was forwarded to the Criminal Investigation Division, and Captain Carol Twiss began her investigation. Little did she know that this investigation would result in an Engaging in Organized Criminal Activity indictment with 35 named defendants and 36 overt acts.

Upon developing suspects to the forgery, Captain Twiss interviewed five of the six people involved with the crimes; one refused to cooperate. However, the five others sang like canaries and told Twiss that the checks had been forged to obtain funds to purchase pseudoephedrine and other ingredients to manufacture methamphetamine. One forged check had also bought fuel to drive a stolen vehicle to San Antonio to sell it. All five named Casey Hannah as the recipient of the meth ingredients.

The five cooperating forgery suspects mentioned the involvement of other people eventually named in the Engaging in Organized in Criminal Activity indictment. As Captain Twiss and Sgt. James Ledford interviewed those named by the original five, they were lead to yet more of members of the combination.

The whole operation came to a head May 20, when Capt. Twiss received information from a confidential informant that some members of the combination were cooking meth at the home of Jack and Shannon Ament. Capt. Twiss and Sgt. Ledford, along with Investigator Erik Geske, set up surveillance at the Ament residence. A little after midnight, Geske observed Ronald Smith, Shadie Baker, Les Newman, and Jennifer Donaldson leaving the house. As they drove past Twiss’ location, she recognized Ronald Smith, who had an outstanding warrant. She called ahead and had a marked unit stop the vehicle to arrest Smith. As the deputy turned on his overhead lights, baggies of meth and pseudoephedrine pill wash were thrown from the window. Les Newman, the driver, also had an outstanding warrant. All were arrested for possession of a controlled substance for the items thrown from the window, and all had fresh need tracks on their arms. The hands of all three men were heavily stained with iodine. Upon arriving at the jail, Dona