A nod is as good as a wink to a blind horse.

Recently the Court of Appeals in San Antonio had to determine whether a head nod in response to a detective's question was admissible in the trial. The case of Lopez v. State involved a woman charged with murdering her husband. Lopez contends that "the trial court erred by refusing to suppress evidence that she nodded her head affirmatively after Detective Davila stated, "you shot him, right?" Lopez claims the head nod occurred while she was in custody and did not comply with the recording requirements of article 38.22, section 3, of the Code of Criminal Procedure."

Texas has a statute in the Code of Criminal Procedure that states:

Art. 38.22. WHEN STATEMENTS MAY BE USED.

Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;

(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;

(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;

(4) all voices on the recording are identified; and

(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.

(b) Every electronic recording of any statement made by an accused during a custodial interrogation must be preserved until such time as the defendant's conviction for any offense relating thereto is final, all direct appeals therefrom are exhausted, or the prosecution of such offenses is barred by law.

(c) Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.

(d) If the accused is a deaf person, the accused's statement under Section 2 or Section 3(a) of this article is not admissible against the accused unless the warning in Section 2 of this article is interpreted to the deaf person by an interpreter who is qualified and sworn as provided in Article 38.31 of this code.

(e) The courts of this state shall strictly construe Subsection (a) of this section and may not interpret Subsection (a) as making admissible a statement unless all requirements of the subsection have been satisfied by the state, except that:

(1) only voices that are material are identified; and

(2) the accused was given the warning in Subsection (a) of Section 2 above or its fully effective equivalent.

So the head nod would only be admissible if the accused was not in custody. The court said that despite Lopez being in a sheriff's office being interrogated by detectives and having been read her Miranda rights before the questions began, she was not in custody. Usually Miranda is only read to a suspect when they are about to be questioned formally and they are in custody because otherwise Miranda is not necessary. So here is a situation where the state needs the defendant not to be in custody before the evidence is admissible. Here was the courts reasoning:

If Lopez was not in custody, then evidence of her affirmative head nod was admissible. The trial court did not make an explicit finding that Lopez was not in custody at the time of the affirmative head nod; however, the record supports such an implicit finding. Both Sergeant Molina and Detective Davila testified the affirmative head nof was in response to the question asked by Detective Davila. Although the question took place after Lopez was read her Miranda rights, both deputies testified Lopez was still free to leave because her status did not change until after she nodded her head, admitting she shot her husband. The court found the deputies’ testimony credible, and Lopez admitted she voluntarily went to the sheriff’s office. We defer to the trial court on the credibility and demeanor of the witnesses, and hold the evidence supports the trial court’s implicit determination that Lopez was not in custody when she nodded her head. Even though Lopez testified she did not feel free to leave once the Miranda rights were administered, the trial court apparently did not credit this testimony in the face of the deputies’ testimony concerning the circumstances surrounding the statement. The trial court did not abuse its discretion in admitting testimony of the affirmative head nod.

So one would do well to remember that in Texas when it comes to a criminal conviction, a nod is as good as a wink to a blind horse or a detective.
S

An arrest by any other name ...

What do you call it when a police officer stops your car with emergency lights flashing, draws his weapon, orders you out of the car, makes you lie down on the ground, face down, legs spread apart, puts handcuffs on you and places you in the back of a patrol car? Anyone? If you said "arrested" you would be wrong in Texas! That is a mere investigatory detention. Yep. How could you possibly believe that you were actually under arrest when all that happens to you? So says the Court of Appeals for the Seventh District of Texas at Amarillo in a recent decision Martinez v. State. This does beg the question, when does the above described fact situation become an arrest? Well, according to the court "it depends". One thing is certain. You the person in handcuffs do not get a vote in the matter. The court said in the opinion, "The standard for distinguishing between an arrest and investigatory detention is not always clear because the distinction between these seizures rests on a fact-specific inquiry rather than clearly delineated criteria." The court further clarified the standards, "In evaluating whether police conduct during an investigatory detention is reasonable, common sense and ordinary human experience govern over rigid criteria." So who determines since it is "not always clear", "fact-specific", "common sense", using "ordinary human experience"? The police officer.

So why does it matter whether it is an "arrest" or an "investigatory detention"? If you are under arrest, the police officer had to have either seen a crime committed by you or have probable cause to make an arrest. Once arrested a lot of rights kick in at that point. If you are stopped for an investigatory detention, the police officer only has to have a reasonable suspicion that you did something wrong and you don't have as many rights at that point. So since your constitutional rights are not always clear to the courts, the best bet is to treat a stop by the police as an arrest. Because an arrest by any other name, would feel the same to you.

Guilt by association.

The people at Keep America Safe a Washington advocacy group have produced a web commercial claiming that lawyers who represented detainees at Gitmo, who were later hired by the Justice Department, are the "Al Qaeda 7". This is so offensively stupid that it is hard to know where to begin.

First, our Constitution guarantees people who are alleged by the government to have committed a crime the assistance of a lawyer. It is called the Sixth Amendment you might look it up! This is not some liberal program made up so that criminals can run free. This goes back to the adoption of the Bill of Rights. I assume the folks at Keep America Safe still support parts of the Bill of Rights.

Second, because a lawyer represents a person does not mean the lawyer adopts that person's views! John Adams represented British soldiers who shot American patriots at the Boston Massacre. It did not make him a loyalist, it made him a lawyer. (And a damn good one since he won the case in Boston!) I have represented people who did terrible things and I have prosecuted people who did terrible things without adopting the views of either side. My job as a lawyer is not to cheer lead for a client but to protect them and make sure the government attorney does his/her job under the law.

To label attorneys who represent an unpopular person as somehow suspicious is to attack the very heart of the American criminal justice system. Attorneys are bound by ethical rules and an oath to the Constitution. Calling American lawyers the "Al Qaeda 7" who represented detainees is the same as calling a lawyer representing someone charged with rape a "rapist". It is easy to call people names to inflame prejudice. However if the "brown shirts" (see how easy that was) at Keep America Safe are ever charged by the government with a crime, I am sure they will not want a criminal defense attorney because we would not want the guilt by association. Actually, we would represent them but surely would not adopt their views.

Milk and Miranda

So what does a gallon of milk and Miranda rights have in common? According to the US Supreme Court, a shelf life. That's right, invoking your Miranda right to speak to your attorney when questioned by the police is only good for 14 days. This past week the US Supreme Court in Maryland v. Shatzer ruled that if someone invokes their Miranda rights to speak to an attorney while in custody and is later released, the police must wait 14 days to try and speak with the defendant again. In this case the defendant Mr. Shatzer was originally questioned by the police while in custody and invoked his Miranda right not to speak with the police and asked for his lawyer. Later Mr. Shatzer was released from custody for more than two weeks. Another detective later attempted to speak with Shatzer who spoke to the detective and made inculpatory statements. The question presented to the Supreme Court was after a defendant invokes his Miranda rights how long does that last? Is it to eternity or 1 second.? In an opinion by Justice Scalia, who hates the Miranda decision, the court concluded it lasts for 14 days. Why 14 days? Why not? In Scalia's opinion Miranda is a made up right so why not make up arbitrary dates for the made up right.

Since Miranda was decided in 1966, it has become a staple of the criminal justice system and cop shows on TV. Most everyone who has ever watched a full episode of Law and Order (any unit) can recite their Miranda rights. From 1966 to 2010 we somehow functioned without having a shelf life for your constitutional right not to speak to a police officer and request an attorney. Now we need a time limit? When the majority was pressed by other Justices on the arbitrary time of 14 days, the majority argued for the need for a bright line for law enforcement. They used the legal reasoning and logic of "it seems to us that period is 14 days." So what "seems" to the Justices of the Supreme Court is all the reason we need or will get.

This begs the question of what other constitutional rights do we have that are subject to a "seems to" test? First Amendment? Fourteenth Amendment? I hope the Fifth Amendment and Sixth Amendment are the only two that have a shelf life like milk.

Yellow dogs and umpires

I live in one of the most conservative areas of one of the most conservative states in the country. I also live in one of the 39 states in America that elects at least some of their judges. Tomorrow is the primary for the Republicans and Democrats. There are many judicial elections on the ballot for statewide judges and local judges. However, unless you vote in the Republican primary tomorrow in Tarrant County, Texas you will have no part in selecting judges for civil, family and criminal courts. This reminds me of my younger days growing up in Alabama where unless you were a Democrat you need not even apply for elected office. George Wallace ran the state and the saying was people would "vote for a yellow dog" if it was on the Democratic ticket. That has all changed now and Alabama is one of the most Republican states top to bottom. People who used to be Democrats switched parties when the public opinion changed and are now ardent Republicans. Really? Did their political philosophy truly change or are they just being, at worst opportunist or at best realistic. The point is why should a supposed fair and impartial judge be required to run as a partisan?

In criminal court races we are treated to campaigns that proclaim that the candidate is "conservative", "tough", "a prosecutor" or where candidates have their picture made for campaign material in front of police officers in uniform. What message is this designed to give? Imagine a family court judge who campaigned that he was "father oriented" had the support of father's rights organizations and had his picture made in front of only fathers. Would a woman think she was getting a fair and impartial judge? It ultimately leads to less faith in our judicial system. No one wants an umpire who supports one team over the other. Judges are the legal system's umpires. How about just calling them as you see them.

Former Supreme Court Justice Sandra Day O'Connor has begun an effort to change judicial elections and remove the partisan political party affiliation in judicial selection. The theory of electing judges is to make them accountable to the people. Why not adopt a system where the governor selects a judicial selection commission that chooses the judge from a list of qualified candidates and then the people vote "yes" or "no" to the question of should this judge be retained for another term? This is the system used in Arizona and Colorado to name two states. It is also interesting that no other country in the world elects their judges. That does not mean that we are wrong but when no one joins your cause perhaps there is a reason.

So go vote tomorrow even if you must do so in a "yellow dog" one party race.