Friday, June 12, 2020
Could it be? Did we really go a week without a new statewide emergency order from our executive or judicial branches? Yes indeed! Remember the beginning of last week’s update? (“What we wouldn’t give for a boring week—just one quiet, boring, uneventful week! Is that too much to ask?”) Who says prayers don’t get answered?
TDCAA coronavirus resources
Remember, all our COVID-19 resources—including sample motions and orders, helpful information, and past updates like this one—are available at https://www.tdcaa.com/covid-19-information/. If you or someone in your office has something you would like to share with your peers, consider emailing it to Shannon for inclusion.
This is not coronavirus news, but while we have your attention: The most interesting news from this week’s discussions in the wake of the killing of George Floyd came from Attorney General Ken Paxton (R-McKinney), who announced late yesterday via the Austin American-Statesman that next session he intends to seek the independent authority to investigate and prosecute in-custody deaths and related officer-involved fatalities around the state, in part because local prosecutors have “apparent and actual conflicts of interest” in discharging that constitutional duty. You can read the op-ed and some initial reactions for yourself to gather what scant details there are at this early stage, and we will follow up with more information as it is released.
Jury trial survey
The State Bar has emailed to all Texas lawyers a survey commissioned by the Office of Court Administration (OCA) seeking input on the judiciary’s plans to resume court operations, including jury trials. The purpose of the survey is to gather feedback from Texas lawyers who have participated in hearings since March 30, 2020, or those who anticipate needing to participate in a hearing before August 31, 2020. To that end, it asks questions about the virtual hearings held to date and what concerns lawyers have about future in-person hearings, including whether part or all future jury trials should be held virtually.
Anecdotally, it appears to us that most prosecutors and criminal defense lawyers oppose virtual participation by juries; however, there may be a disagreement between the two groups over the participation of witnesses and admission of certain other evidence remotely (something prosecutors generally seem more comfortable with than the defense bar). But again, that’s just our feeling based on individual conversations—OCA has created this survey to quantify those sentiments. If you want to help them do so, then click the link in the email you received and have at it. The survey is estimated to take ~15 minutes to complete, and submissions close on June 17, 2020.
Our first General Advocacy online CLE course is now available! This training features prosecutors from across Texas sharing tips, processes, and other advice on how become a better courtroom advocate. The fee is $25, and attorneys who complete the course will receive one hour of CLE credit. Click here for more details or to access the webinar, and be sure to check back periodically as this is just the first in a series of high-quality online courses we plan to offer.
New book on jury selection
Jury selection is the most important part of a criminal trial. Choosing the best topics to discuss (and the optimal way to discuss them) in limited time can help prepare jurors for the legal and factual issues they ultimately will be asked to decide. The first edition of Jury Selection by Ryan Calvert (Assistant DA in Brazos County) guides prosecutors through the process and provides helpful suggestions and examples for ensuring members of the jury panel feel safe to express their true feelings so both sides can discern whether panelists are suitable to decide a certain case. The book includes information on setting goals for voir dire; challenges for cause (including commitment questions); Batson v. Kentucky; and using voir dire to prepare jurors for the evidence and for closing argument.
For more information about the book or to order a copy, click here.
Ethics input wanted (again)
Six weeks ago, we mentioned in Update No. 9 that the State Bar’s Professional Ethics Committee (PEC) was accepting public comments on the following question:
Proposed Opinion 20-2 (Revised): Whether a lawyer who represents a defendant in a criminal matter violates the Texas Disciplinary Rules of Professional Conduct if, after receiving tangible evidence from the lawyer’s client, the lawyer does not reveal the existence of the evidence until trial and refuses to allow the prosecuting attorney to inspect the evidence until the court orders the lawyer to do so.
The PEC took public input on the question and has now proposed a new opinion—albeit one that still would find that concealing that kind evidence from the State is ethically permissible. Go to texasbar.com/pec to read the latest proposed opinion and provide comments if you disagree with the analysis or conclusion. The comment period ends on June 27, 2020.
Quotes of the Week
“If you have to explain your political slogan at length because people think it means something else, then maybe it isn’t a great slogan.”
—Tweet by Carissa Byrne Hessick, a criminal law professor at UNC, in reference to the “#DefundPolice” meme.
“That’s not the answer. … [But] there’s a part of me that hopes they do succeed because I want to see how long it takes before they say, ‘Oh, no we do need a police department.’”
—Gwen Gunter, retired Minneapolis (MN) Police Department lieutenant and member of a black police officers’ association, in response to local calls to “defund the police” there.
“They want to make damn speeches, and they want to get reelected, and they want to blame someone because if they don’t, then the public is going to realize they were in charge the whole time.”
—Charley Wilkison, executive director of the Combined Law Enforcement Associations of Texas (CLEAT), commenting upon potential criminal justice reforms next session.
“George Floyd has not died in vain. … I’m here to tell you today that I am committed to working with the family of George Floyd to ensure we never have anything like this ever occur in the state of Texas.”
—Gov. Greg Abbott, in a statement issued prior to the funeral for George Floyd in Houston.
“There’s an inherent conflict between the rights of someone on trial and our social distancing policies. As smooth as this [jury trial] went, at no point would I ever advise a client to go through with it in these times.”
—Dylan Potter, Multnomah County (OR) public defender, after representing a defendant in a recent in-person jury trial in that county, one of many jurisdictions that are beginning to experiment with courtroom proceedings post-shutdown.