April 1, 2011

Unites States Supreme Court

Connick v. Thompson (5-4)

03/29/11 : Cite No. 09-571


Can a district attorney’s office be held liable under 28 U.S.C §1983 for failure to train based on a single Brady violation?

Holding (Thomas):

No, not under the very narrow range of circumstances constituting single-incident liability. Also, Thompson failed to prove a pattern of similar constitutional violations. Read Opinion.

Concurrence (Scalia):

Justice Scalia takes issue with the dissent’s position. He writes, among other statements: “The dissent’s excavation of the trial record is a puzzling exertion” and “[t]he dissent suspends disbelief.”

Dissent (Ginsburg):

Justice Ginsburg would uphold the jury’s verdict for “the gross, indifferent, and long-continuing violation of [Thompson’s] fair-trial right.”


Things would have to get pretty bad for you or your boss to be sued under Section 1983 for a Brady violation. So hopefully you will not even be confronted with the legal issues that were raised in this case. Thankfully, the Court continues to maintain that a high burden must be met before a defendant would be entitled to relief for a civil rights violation, even after the convictions that he had suffered had been overturned. But please be careful out there and turn over to the defense what they need. This defendant—who may have been entirely innocent—spent 14 years on death row and even longer than that in prison.

Fifth Circuit

United States v. Jackson

03/22/11 : Cite No. 09-10850

The Fifth Circuit withdraws its prior opinion (summarized by TDCAA on 11/12/10) and substitutes this new opinion reaching the same result but expanding the evidentiary and constitutional analyses. Read Opinion.

Original Opinion holding that the officer was not a qualified witness to sponsor the ledgers supplied by a co-conspirator because the officer lacked knowledge of the record-keeping process of the specific drug-trafficking cell. Read Original Opinion.


One might applaud the government for “thinking outside the box” in attempting to get this ledger into evidence. But this is really not the appropriate way to get this kind of evidence admitted. Get someone to recognize the handwriting and have it admitted as an admission by a party opponent, an adopted admission, or a statement against interest.

Court of Criminal Appeals

Byrd v. State

03/30/11 : Cite No. PD-0738-10


Was the evidence sufficient to convict the defendant for theft of property when the State alleged that the owner was Mike Morales and not Wal-Mart?


No. The State failed to prove the defendant stole any property from Mike Morales, whom it had alleged as the owner of the shoplifted item. Because the State failed to prove that Mike Morales had any ownership interest in the property that the defendant stole, the evidence is insufficient and the defendant is entitled to an acquittal of that specifically charged offense. Read Opinion.


The court does appear to suggest that the State could re-try the defendant with the correct theft victim alleged in a new or amended indictment. But this is a significant cautionary statement that we have got to read every single word of our indictments to make sure that everything is correct.

Davis v. State

03/30/11 : Cite No. PD-1400-10


Was it an improper commitment question from the defense when they asked, “Let’s talk about factors in [assessing] the sentence in a case of aggravated robbery with a deadly weapon. What factors do y’all think are important?”


No. Questions on general background and jurors’ philosophy are permitted. When the range of potential punishments is greater (in this case including probation, possible terms of confinement ranging from five to 99 years, or life, and a possible fine of up to $10,000), questions that would be commitment questions in a capital felony may not be commitment questions. Read Opinion.


Presiding Judge Keller states that the trial court was within its discretion to prohibit the question as framed. Read Dissent.


It is possible that the court could uphold the trial court’s ruling on the basis that defense counsel’s question was an impermissible “global fishing expedition,” as opposed to a commitment question. But the court does appear to state in this very short opinion that an attorney should be able to ask about a prospective juror’s philosophy, especially with regard to punishment, and especially with regard to most non-capital cases where a wide range of punishment is available to the defendant.

Courts of Appeals

Cummings v. State – 14th COA

03/24/11 : Cite No. 14-10-00107-CR


Did the trial court commit fundamental error by failing to instruct, sua sponte, the jury under Tex. Code Crim. Proc. art. 38.23?


No, in this DWI case, the disputed facts as to whether the officer could have seen the defendant urinating were not essential to decide the lawfulness of the detention and arrest. Separate reasonable suspicion to conduct a stop arose from the defendant driving away from the scene. Read Opinion.


Because the officer did not testify about having reasonable suspicion except for observing the urination, the trial court should have given the instruction. Read Dissent.


The Court of Criminal Appeals may want to review this decision because of the factual dispute over the key reason that justified the officer’s stop of the defendant in the first place. But this will be a good decision for prosecutors if it holds up. Too often defendants will present a version of the facts that is different from the State’s witnesses, but still does not reveal any Fourth Amendment or other statutory violation on the part of law enforcement. 

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