August 5, 2022

5th Circuit Court of Appeals

U.S. v. Rodriguez

No. 21-20270              7/26/22


Can a federal district judge permanently bar a particular assistant U.S. attorney from appearing in his courtroom without making a specific finding that the prosecutor acted in bad faith?


No. While district judges have inherent power to issue sanctions against attorneys for bad faith conduct, the threshold for sanctions is high, and a court must make a specific finding that the attorney acted in bad faith. Read opinion.

Concurrence (Ho, J.):

“It is apparent from the transcript of the proceedings that the district judge believes he has been falsely accused of discriminating against the AUSA based on her sex. But be that as it may, it’s hard to imagine a less persuasive way for a judge to rebut the charge that he discriminated against a female attorney than by expelling her from his courtroom—not just in one case, but in every case that she may bring for the rest of her career.”


This issue came to the federal appellate court by way of a cross-appeal, which would be called a cross-point of error in state appellate court. Resolution of the issue was easy because the trial court made no finding of bad faith, which apparently is required in federal court. Resolution of such an action in state criminal court would be equally easy, as it would be akin to disqualifying a prosecutor. It would probably have to be handled by way of a petition for a writ of mandamus. The concurring justice—a former Solicitor General for the State of Texas—has successfully identified the key problem with the trial judge’s order.

Texas Courts of Appeals

Phillips v. State

No. 02-21-00116-CR               7/28/22


Is a fingerprint expert required to show jurors the exact points of comparison he found in forming a conclusion that prints on two fingerprint cards for prior convictions matched the defendant’s fingerprints in the current case?


No. Unless the opposing party asks for this specific information, T.R.Evid. 705 does not require an expert to show underlying facts or data, including for fingerprint comparison. Read opinion.


Wow. So this must be a murder case in which the defendant’s fingerprints figured prominently in the State’s case against the defendant? No, it wasn’t. Or this was a burglary case in which the State relied upon the defendant’s fingerprints to prove entry of the habitation or building? Wrong again. This was a felony DWI case in which the defendant’s fingerprints were used to prove his prior convictions. Sigh. The court’s resolution of this issue reads like a holding that the defendant failed to preserve error by making an objection on appeal that was not the same as the objection made at trial. The court of appeals could just as easily have held that this was an improper challenge to the sufficiency of the State’s showing on the third Kelly factor for fingerprint evidence. Read this opinion for the relevant case law if a defense attorney makes a similar hyper-technical challenge to the admissibility of fingerprint testimony.

AG Opinion Requests

RQ-0470-KP                8/2/22


Do justices of the peace in a county have legal recourse if their commissioners court approves a new case management software system over their objections? Read opinion request.

Requested by:

Matt Mills, Hood County Attorney