1 - Voice For The Defense Online

1 Thursday, July 20,20001 &30 Registration9:00 Preperation for the Child SexualAbuse CaseRichard Rodriguez, HarlingenI1 10:30 Break9:45 Current Parole DevelopmentsWilliam T. Habern, Riverside10:45 immigration Laws for CriminalPractitionersRichard L. Prinz, Houston11:30 Use of Expert WitnessesRonald P. Guyer, Houston12:15 Lunch1 :30 Opening StatementsWilliam P. Allison, Austin2:30 EthicsRobert A. Jones, Houston3:15 Break3:30 Voir DireLariy Sauer, Austin415 Federal Criminal Income TaxJ.A. Tony Canales, Corpus Christi5:00 ReceptionFriday, July 21,20009:00 Kung Fu Stratagies and the Act ofTrfaiDaniel E. Monnant, Wichita, Kansas8:45 'Cross ExaminationMichael P. Haskel10:30 Break10:45 Smart Weapons andHigh Tech Demonstrative EvidenceE.X. Martin, DallasCDLP programs are supported by a grantfrom the Court of criminal appealsCDLP Hits the BeachJuly 20-21 , 2000Radison resort South Padre Island-(210) 761-6511Hotel Room Rate: $135.00 - Hotel Cut off Date: June 19,2000An appllcation for 13.5 Hours MCLE (2.25 hours Ethics Credit*) ispending11:30 Coping with Cop Created CrimeStephen R. GlassrothMontgomery, Alabama12:15 Lunch1:30 Motions for New TrialJoseph A. Connors, Ill, McAllen2:30 Ethics and the Death Penalty*Cynthia Hujar Orr, San Antonio3:15 Break330 Dealing With Grievances*Ana Lisa Gaaa, Rio Grande City415 Motions PracticeChris Flood, Houston5:00 AdiournCDLP Hits the BeachPlease complete and send this registration form by mail to:CDLP 600 West 13th *Austin. Tx 78701- 1705or by fax to (512)469-9107NameBar Card #AddressClty, State, ZlpPhoneFaxE-mailPlease check all that applyRegistration Fee:9 Current TCDLA Member $200.00Q Non-Member $275.00Q Judges $89.30Can't Attend? Buy the bookincludes shipping and tax $89.30Update your membership or joinand get the seminar at the member price.0 New Member $75.00Renew Membership $150.00Q Early Registration ends July 7after that date olease add $50.00your Total0 Check inclosed0 Charge My 0 Visa Q American Express0 Mastercard a DiscoverName on CardCard NumberExp. DatePlease call randy at 51214780514 or check outour web site - www.tcdla.com for informatloniScholarships Avaliable

Megaage Editor's Comment Director's Perspective Federal CornerRobert C.Hintm, Jr. John Carroll D'Ann Johnson F.R. (Buck) Files, Jr.6 8 10 12On the CoverI L~LA's New rmsruent, Ruuwt b. HintonIOn the Federal Sentencing Coidelines for Nlethamphetamine 18Texas Convicts Trapped in ;II by Uavld HargroveBaffling Legal MazeIJury Nullifications in Capital Cases( by Clay S. Conrad~usty Duncan rnotosCriminal Justice NewsSurf the WebSignificant DecisionsMotion of the MoSummer FunNew Members Liwww.tcdla.com

THEPURPOSES OF TCDLATo p~otect c~ncl illsure iby ~ule of iaw tliosc incliviclu~lights ~uurnlrteed by llie Texcli c111d FederalConsfilulior?s iri criniinol cases: to resist tihe constantefforts whicl? ale now being niude to curtoil suchlights: to encourage cooperalion lbetween lowyelsengaged in liie lu~tliernnce of suclr ol?jectiveithrough ei~ucaliol?cd programs and other assistarrce:and th~ough such cooperatio~l, education und ass is^tcuice to promote justice cmcl lhe comn-icn goocl.VISIT THE TCDLA WEBSlTE@+P july/A~g~&t 2000 - Voice 5

teaching our FootstepsTurning towards the Horizonby Robert C. "Bob" Hintn~~, Jr.as this phenomenal and fascinatingAssociation enters itsthirtieth year, it is absorbingto re-trace its enonnous footsteps.Enonnous, hecause they were leftby the colossal titans of our profession.Phil Burlman, Em& Maloney, EmmettColvin, Tony Friloux, Warren BtunetttGeorge Gilkerson, Chaley Butts,Weldon Holcon~h, Stuart Rillad, BobJones, Charley McDonald,George Milner, Jr., RoyMinton, Richard Haynes,Travis Shclton, Vince Perini,Cliff Brown, Tam Sharp,Charles Tessmcr, DougTinker, Don Wdson, RoyBanem, to name but a few,decided in 1971 it was timefor crimiual defense lawyersto have a statc-wide presence.They set upon the taskto establish an assmiation ofprofessionals which wouldhave a voice to he heard intlle legislature, and the criunnalcourts throughout thisvast state. They sought toprotect andensure the constitutionalrights of citizensacwsed, to educate and assistcriininal defense lawyers, and thereby topromote justice and tbe common good.Weldon Holcomb, Geo~ge Gilkerson,Judge Frank Maloney and Voice Editorin-ChiefJohn Carroll ham accepted thechallenge of Co-chairing the "30thAnniversary Commttlee". ThisCommittee is charged with the respondbility of producing a video-tapedreview of the conception, gestation,birth and early development ofthis magof"lonocent Persons in Pnson, TheNeed for Innocence Protectionnificent entity we now m e with pride, Legislation and Fommt~on of h6 Texasappreciation and respect. The product oftheir efforts will be displayed at theIimocence Network". Barry Scheok, ourown Edward Mallett, the incoming"Members' Party" in June, 2001. FIO~I NACDL President, outgoing TCDLAthe Iilming I have been privileged toobserve to this polntJ can assure you itwill be a "block-buster"!Cynthia &Jar OK absolutely stunsPresident Michael Hciskell, Bill Allisonand others met the media in a very productiveconference which garnered wideand concentmted coverage about tbistopic of moat importance.Congratulations, Cynthia, onyet another job done withsuper-human exceIlence.Betty Blackwell and MarkDaniel prodmed what has tohave been thc very finest"Rusty Duncan Criminal LawSeminar" ever! Knowing thatBetty, Mark, Cynthia, DanHurley and Randy Wilsonconstitute our chain of OEcersallows me to sleepme. I am beginning to hcliwethat she issuper- human, some bionio creation ofthe Goldstein laboratory of magic! Shemust ham no need for sleep or otherhuman escapes, as she obviously works24 over 7 by 521 Cynthia organized,scripted and orehestrated a very excellentand effective press conference onJune2.2000, in SanAntonio on the issuesoundly at night. Eyen a"Red-Headed Wildman" can'trender things unsalvageablein the face of this roster ofchampions!As president, I have twomajor goals. The first is togrow the membership to 3000by June, 2001. The second is to pmvidethe snpporl for KelthHampton and AUenPlace to have the nmst effective legisla-tlve effort ever. W~th your help TCDLAcan achieve these goals. Please, go outof your way to sign np now members.Be available to go in Anstin to helpKeith and Allen.('rrfinwd an imfpng8)Voice 6 - JulyiAugust 2000 - President's Message

When they ask you to contact yourlegislators, do so! Keith and Allen arethe pros. If we listen to them and dowhat they say this organization canmake a big difference. We can achievetime goals if we want to. In the wordsof Raymond Holliwell, "Desire createsthe powerlf'We enjoy the Inxury of havinganinwedibly dedicated, talentcd andhard working staff. We need a membershiphase of 3000 to be able to afford tokeep these fine professionals. Please gothe extra mile to recruit new memhen,and get them to come to our quatterlyBoard meetings. When members attend,they discover the intangibles that makethis organization so grcat, and they takeback with them a new spirit of pmfessionahn.As Racehorse soaptly puts it,they learn "why we do what we do"!With a membership hase of 3000 we willhe in a better position to cause our finestaff to want to continue to do what theydo so well.I close For now by expressing my sincerethanks to you for allowing me theincredible honor and privilege of servingas your President. Mike Heiskell is ahard act to follow. He is a great leader,and a man whom I respect and dearlylove. It has been a high point in mycareer, in my life, to have worked andplayed with Mike, and to count him asone of thc very best friends I have inlife! This organization and I are verymuch inhis debt. Mike cannow baskinlhc richly deserved glow of his lovclywife, Anita, and their perfect new baby,Michael P. Heiskell, Jr.Life is good!

HAS ITONLY BEENONE YEAR?John Carrall,a San Antonio criminaldefense lawyer, is theVoice Editor-in-Chief.HAS IT ONLY BEEN ONE YEAR?I now have completeda full year withthe Eice fd,. the Defense. It has hccnmore fun than you think (like whitewashinga fence). Despite a few sinallproblems and corrtroversies, the year hasgone well. 1 have appreciated the kindaud supportive comments from many ofniy fellow Association members.However, to the extent yon like whatyou are getling in the Kwe, yam tnrlyis not responsible. The most impo~fantthing I have learned is what, or moresignificautly, who, makes the lbice run.Every month, I can count on tbe factthat the IWce will have a well written,mfonnative. useful SignificantDecisions Report thanks to the selfless,and all too thankless efforts ofCynthia Ha~npton, assisted by MikeCharlton. Toiling away in Austin sheasks for nothing from the Voice or fromTCDLA and provides one of the bestbenefits of inenihcrship to TCDLA.I know I don't read all the Court ofCriminal Appeals cases, and thanks toCytithia, I don't have to. Every issue, wecan count on her thorough, careful anduon-argumentative reports of importai~tcases that affect oor practice. Cynthiacon~bmes the qualities of being iiitercstedin wnting the significaut decisionsreport with the intelligence to do it well.She is a major reason the Wee is a uscfultool for your criminal law practice.every month is Buck Files' FederalComer. Congress, the Courts and theJustice Department kecp tinkerii~g withthe criminal law. Fortunately forTCDLA, Buck Files is paying closeattention and understa~~ds what is goingon. Despite his V~IY busy law p~actice,we can count on Buck to take time everyinonth to keep us up to date on devcloplnentsin federal criminal law. Lastmonth we did a disservice to Buck thatneeds mention. Buck wrote a column onthe rcccnt Fourth Amendment decisionby the Supreme Court in Uii~edStates v.k d , 120 S.0. 1462 (2000) This wasthe unconstitutional squeeze case whichoriginated in the Western District ofTexas. Somewhere between the printingand the publication we lost Buck's margins,turning his block quotes into nmonsentences and leaving some questionas to the sotuce of one of his quotedparagraphs. Wc apologize to Buck andhope to keep his co11mu1 looking as goodas it rends.Ifyou like the way the %ice looks, ifyou like the articles you've beenreadmg,you nccd to thank D'Ann Johiison, who,in addition to running the entireAssociation, ~nanaging innumerableseminars, participating in lobbyiogetiorts and so much more, puts the Yocetogether every month. D'Ann spends alot of time working on the Voce. TheMarch issue, which fooused onCorrections in conjunction with theTCDLA Corrections scniinar, was aresult of D'Ann's efforts. We all owe ourexecutive director a debt of gratihidc fortho hard work sbe does on the I'oiceforthe Defewe.ARer rcadiig this, youmay he thinking,what does Carroll do? A fair questionwhich is beyond the scope of thiscolumn. Despite the largely thanklessnature of their tasks, Cynthia, Buck andD'Ann continue to make their impoltantcontributions to the l'oce. Their hardwork and dedication help make the Voicea useful hcnefit of memuhenhip inTCDLA, While the regular feahues arean important part of the heice, most ofour content contmues to come from thecontributions of TCDLA members whokindly submit articles and Motions forpublication. Subniissions fmn ourmembcrs are up fro~n when I startedwith the Koice, hut we can always usemore arl~clesThis year is an important one forTCDLA as wc prepare to celebrate ourthirtieth anniversa~y as an association.We plan to commemorate the occasionwith a special aniliversary issue. One ofthe things we are working on, as evidencedby the videotaped intenriewsduring the Rusty Duncan seminar, is preservmgthe collective memory ofTCDLA. If you have any photograplisfrom old (a rclative tem, I was only tenyears old when this club got started)TCDLAgatherings, or of TCDLAniembersin action, in court or on the slopes,I would appreciate it if you would sendcopics to tlie home oEce so we couldcons~der making use of them.I have mole wo~k to do on the micethis year in order to accomplish the goalsI set a year ago. I hope to have more featuresusefiil to our everyday practice,more hook reviews and more informationabout resources for legal and investigativeresearch on the internet. In ourdrive to increase membahip in theAssociation it is important that the %icecontinue to be a valuable asset inTCDLA's hag of member benefitsVoice 8 - luly/August 2000 - Editor's Comment

Idoa't generally watch boxing. Twoguys httting each other in the headas hard as they can just isn't somethingI tune into for relaxation. But theother night I attended a premier showingof a dwtnnentary, "Split Decisions",about an Austin boxer.Jesus "El Matada" Chavez becamethe North American Boxing FederationSuper Featherweight Champion in 1997.Austin Mayor Kirk Watson honored himw~th a Jesus Chavez Day. He has a nearperfect rccord of 32-1. Despite h ~s boxingsuccess, Jesus is hkc a man withuta country. Born in Meuco, but raised niChicago since age 7, ins boxing careerwas on the rise when, at 18, he madc adecision that changed 111s lifc. At thetlme of the championship-fight. Jesus\\as fghting a deportation ada to Me..tco.Hc was boxing his way to a worldchainp~onship when his attempt to get adriver's license tipped off theInnnigration Service. A feu, monthslater; INS scnt bm back to Mexico.Teased because of his lousy Spanish,away from this parents and shhns anddiskusted by the Mexican hmring conntiunity,J~esus is mtt ofoface 61 Mexico& can7return to the Stales.The film's director, blarcy Ganiott,made the film after meettng Jesnstl~nougt~ her boxing brother-in-law. Shewas shocked how the system works.She had believed that if a person commitsa crime, awepts punish~ncnt andrehabilitates hinlselve society shouldforgive. The film shows how unforgivingboth the criminal jnsitce system andthe immigration laws hnve become.Following a couple of neighbo~lioodtough gnys, he joined in a groceiy storerobbay. Thenert day he told his boxingcoach what 11s had done. The coachlwked at him and said, "What are yongmng to do when yon go to jail?Vesuswas stunned. No snrpnse to criminaldefcnse attorneys, but the ktd jnst hadn'tthought about the coilsequences.Ashamed of the pain he cawed h ~sfamily, wanting to be a man and &ce theconsequences, he pleaded guilty. Jesosserved three and a half years in prison.Prominently drsplr+red inside ptism is) the sign "Decis~ons Defernnnc Desttny".Becatisc he was Mcxicatt-born, INSplcked him up at the ppnson gate and puthim on a bus to Mex~co He hadn't Ilvedthere for twenty ho ycars.Jesus prinptiy retnn~ed to thc UnitedStales, although illegally. He startedboxing under a dtfferent name in Austin.Jesus is applying for a pardnl fromthe Governor of llli~rots and n workwaiver om the INS so be can make anm at the world liile. He's viorr~ed aboutrime now. At 28. his main competttorsalc 21 and 22 Soon, he says, he w~ll betoo old to be a slmng contender.For your clrents who me not US c~hzens,the decision on their cases mayhave harsher conseqneiices than jailtune. Just as TCDLA member BillMaynard says, "Renmuher 364 Days".A posslbie sente~~ce of morc than 364days pnts a non citizen client 111 dangerof depo~%atim~. Call an immnigrationatiumey if you are not certain of poolclient's imnt~gratio~l consequencesSplit Decisrons" is a great film Trythe other suggestions for books, films,web sites and vacstlons found m thisedthon of the Yoice.-Hap@ you ergov tire strmrrte,:Voice 10 - JufyIAugust 2000 - Director's Perspective

Rusty Duncan 2000luly1Augu;t 200U - Voice 11P=-

1court 11eM that that was snfficient evidenceto meet the intcrstatdforeign comlercerequirement for a federal murder-forhireconviet~on.As to -andtherc is ajoker in the en banc deck: Recently, ourjudges have been unable to agree oninterstate commerce issnw. This hasresulted in tie votes and orders affirmingthe judgments of tho distr~ot courts.. United Stata 1, H~cknmn, - F.3d(5th CK 1999). The defendantswere charged with violations of the~ohb's Act, I8 u.S.C. 8 1951. III a commonscene, they had robbed variousrestaurants m three different c~ties in theEastcrn District of Texas. The judgescould not agree on whether these robberiesobstn~eted, delayed, or affectedcommerce or the movement of any articlein comme~~.. Uniterl Slates v Kirk, I05 F.3d 997(5th Cir. 1997). The defendant wascharged with a violation of 18 U.S.C. $922 (o), the machine gun statute. Thejudges were unable to agree whether thepossession of machine guns had a substantialeffsct on iuterstate comllrerce.In another case which d ~d not meriten banc review, a panel of the circuitvacated the defendant's plea of gnilty ina T~tle 18 U.S.C. 5 844(i) arson caseholding that ".. .the fachtal basapresentedtothe district court dues not support afindkg that Johnson's December 1996arson of the Hopcwell United MethodistChurch resnltcd in the damagc ordestruction of a budding nscd in inter-state commerce or in any activity affbctinginterstate commerce!' United Shrmsv. Joltnson, 194 F.3d 657 (1999).In &&ma, the government hadoiTefed a written "Factnal Basis" whichcontained the following: That the defcndanthad set thc fire in thc church in aneffort to cover up past bnrglaries of thcchurch that the clmrch was insurcd by anout-of-state insurance cotupany; that theinsurance company had paid a claim on$89,000 to the church; that the chnrchwas a member of the Texas AnnualConference of the Umted MethodistChurch and contributed approx$matelysixteen percent of the money thatit collected from its congregation for theTexas Annual Confcrencc; that theTexasAnnnal Conferewe forwards the majoritvof its contr~butioas to the UnitedMethodist Church's General Counsel onFinance Administration in Evanston,Illinois; and, that these funds are distrihutcdto various ministries throughdut theworldMy only conclusion on this topic ispainft~lly uusophisticateed: If you have ahint of a sniff of a scintilla of aCommerce Clause Issue in any criminalcase in any district court within the FiflhCicu~t, file your motion and hope that--if you don't prevail in the &strict courtyougct a friendly panel. And no en bancreview. lIMPORTANTTAX NOTICEDuesjTax Noticeplease note the following: 1$36 of your annual dues($19 if a Student Member)is for a one-year subscriptionto the Voice for theDefense. and $39 of regulardues is for TCDLA legislativeprograms.Dues to TCDLA are notdeductible as a charitablecontribution but maybe deducted as an ordinaryand necessary businessexpense.Because of TCDLA'S legislativeprogram. $39 ofsustaining and regularmembership dues is notdeductible as a businessexpense.IISometimes thestrengthof one...... lies within thepowerof a group.The TCDLA long distance plan,administered by EclipseTelecommunications , is hased ongeneral economic theory -- thehigher the volume, the lower theind~vidnd cost. The TCDLAPgramis based on the idea of providingindividual companies withgroup-based purchasing power andbenetits.Our longdistauce program is as logicalas 1,2, 3.1. Endorsed by your association2. Guaranteed flat rates3. Memhers only servlceFor a quicklate comparison or moreinformation, contact an Eclipseaccount representative at 1-800.342-9287..........................Or you may also complete thefollowing infom~ation and fax to1-800-342-4240NameCompanyPhoueAvg. mo. weTCDLA 10JulyIAugu5t 2000 - Voice 13F

MNEW APPOINTMENTJudge Michael J. McConnick issued an order appointingHonorable John Hyde of thc 238th District Court of M~dlandCounty as being soley authorized to Issue search warrants forthe interception and use of wire, oral and electronic cotnmun~cationsunder Artde 18.20 of flue Code of CriininnlProcedure. The appointment is effective immcdiately and ison file with the Clerk of the Court of Cr~minal Appeals. JudgeHyde replaces Judge Weldon Kirk who is retiring from the32nd District Courl on June 12,2000.The Fifih Circuit ruled that the ADA did not apply to plearrestsituations involvingpolice. In a case on behalfof an ex-Mariue who was suicidal, the family called the police to helptransport h~m to the psychiatric uuit at St. David's Hospital inAustin Instead of approaching the sihiation as a mentalhealth lransporl call, the pol~ce arrived and treated it as any"crime in progress" call. W~thin thrity seconds of arriving,when tl~c young man beca~ne agitatd, the police shot himlwicc, once throi~gh the chest. He hved, miraculously.However, the appellate court decided the police did not haveto adjust or adapt their procedures to handle people withmental d~sabilities any differeutly up until the the they arrestthem. The case will he appealed.Tbe Texas District and County Attorneys Associationfcaluring: KI~I Ogg on Gangs, and Joh~i Bradley on Pleas,Probation and Punishment.The program will be offered in Edmgburg, Dallas, Sanlo, Lul Houst I, El Pr 11 Antonlo.lore in uon. c< A at 5 1-2436.In thetcd for theREACHING OUT TO HELP BA~ EWOMEN IN TEXAS STATE PRISONSThe Norlhwcst Assistance Ministries' Family ViolenceCenter in Horiston developed a counseling program for batteredwoincn who are incarcerated in Texas state prisons.A grant frm tl~c Texas Department of Human Servicesallows the center to develop a colinscling program for thisunderserved populatton. There are hi-weekly support groupsfor battered women in Plate Slate Jail and Hndey Substanceabuse Facdity in Dayton. Once a month, there is a suppo~tgroup at the Gatesville Prison in Gatesv~lle.For more information, please contact Becky Blasingame at281-855-HOPE (4673).Voice 14 - July/August 2000 - Criminal Just~ce News

GEURGE ROMAL5MEMORIAL SGWOLARf HIF', ofthe Collin ConntyCriminal DefenseLawyer's Association,recently presented acheck for $3,500.00 toMs. Lanchi Huynh ofmano East Senior High,as this years recipient ofthe George RolandMemorial Scholarship.-... Ms. Huynh has beenaccepted at RiceUliwrsity. She plans to pume a career in Environmental law.IADL was created in 1946 by jurists who fought in World WarI1 and participated in the Nuremberg Trials. The organizationammotes findamental human rights and suowrfs the aims ofke United Nations. FULLT~-PROFESSIONALS IN THELEGAL FIELD DO NOT NEED TO APPLY FOR A SPE-CIFIC LlCENSli 1'0 TKAVEI.TO CUHA. For more informationvisit the IADL wehsite (www.iadllaw.org) or for travelregulations, see (www.nlg.org).The Federal Public Defender for the Southern District ofTexas is presenting a seminar designed to assist Criminallustice Act I'anel attorneys in dcfcnding a criminal case. Formom information call (956) 630-2995.The International Association of Democratic Lawyers (IADL)is holding a conference entitled "Establishing a JustInternational Legal Order". The conference will bring togetherlawyers, jurists, and educators from throughout the world.Past president, Michael P. Heiskcll swears in new presideut,Robert C. Hinton, Jr.ATTORNEY GENERAL CONFESSESI FDRnR ihl hAARTINF7 PACF 1In the case of Miguel Martinez, the Attorney General confessederror in sentencing. Fred Zain testified at trial that anaxe and two knives wntained the blood of victims. Theexperts at tbe habeas hearing testified that the blood was not ofhuman origin. Congratulations to Gerry Goldstein andCynthia Orr.2000 OllTcers, from IcR to right: Randy Whn~,Cynthi,On; Betty Blackwell, Dan Hurley and Mark Danicl.The Texas Civil Rights hoject recently tiled suit againstTaylor County and the state prison system for an HIV+ personwho was denied participation in a special DWI alternativeprobation program. The authorities terminated his participationbecause of his HIV status and instead sent him toprison for a year, where he did not receive appropriate medicationfor more than a month. Not only this, but the DistrictClerk of Taylor County wrongly disclosed his HIV status,wntnuy &Texas law.

Sites for Kids@ UNDER 10http://www.pbs.org/kids/Follow these l i i to sites for perennialfavorites like Sesame sheet andMr. Rogers as well as to the moremodem Teletubbies andZoboomafoo and play matching- -zames, trivia ctames. stories,newslet€ers, and more. Check out" ' the Parent Survival Guides fmt sothat you know what's cnming! After? you impms them with your abilityto stet to the site. this is a chance foryour kids to show you what theyPlug-InsWell, if you are going to have fun, yousometimes need to pack fiat You willneed these (usually) free sohare pmgramsto tun ccrtain features as you surfthe web. If you surf the web often, youwill need all the plug-ins describedbelow (shookwave, flash, realplayer,realjukebox and adobe acrobat).Different web sites use diRere11t software.Ziff Davishttp:l/nww.zdnet.eomThese are good sites to visit 'to see revicwf of softwarabout the trends online. You can becamea member of ZD Net and receive emalsoftware.http://www.nickjr.com/Blue's Clues, Little Bear, GullahGullah Island. If you don't knowwho they are, you're either out oftouch or vou don't have eablc Tikethe PBS site, this is a great place toplay some educational games andIexplore your child's world!7 and UPSchoolhouse - Rock~//gmitkd.silplerpt.~&&-hi ShWIVe~ore you a fan? Play the songs and Igames that go with them!www.lego.comFor the Legomaniac in all of usIhttp.l~w7vw.tuacron1cdia.com www.~ual.com http:l/adobe.comDownload Shockwave so that you can Download the simple ver 'on of Fmp here you can follow links so thatview entertainment on the Web, includ- Reall'layer bud' R~%Jukebo&yo $at can download the Acrobat Readering games, music, rich-media chat, inter- can listen to mwiD and' plai&novies 'software youneed to download and readactive product demos, and en~erchan- online. With Reahkehox you can documents you fitld online.dising applications and Flash to enhance record CD's as well. Both have versionsweb sites with heavy multimedia can- with more bells and whistles that youtent.can upgrade to for a little extra money.a : I: &I..% y s@.-I

www.columbiahouse.comRemember the first time you joined arecord club? It was pretty cool to get thatlist ofrecords in the mail, wasn't if? Well,just as the music formab are changing, sohas the way to get in touch with the musicyou want. Visit these sites to f& links toartists, listen to clips and order yourrnsand videos or if you have children, findout exactly who they are Listening to.l~ttp~l//wbvbv.naliunu~eogmphiccon~ , hltp:l/~v~v~v.tpbvd~Itnte.t~us/ l~np:/hm~vme~~icn~~prkn~t~~ork.~~~~l/Lttp:llwwbv.~Lis~vr.r.coml'hc 'lil)im l'& and Wildlife 'Ilriu site is ntn by the pubhbcBooks: Rev@vvs and SafesBook Sellershttp:llwww.amazan.eomhttp://www.bn.cam/http:1/www.borders.cu1nlUsed and out of Print Book Findelshttp:/!~.evenbetter.conrhttp:/lwww.behalf.comlType in thefuame of a book, movie ormusic and get a list of links to e-commercesites with a comparison of prices.July/August 2000 - Voice 17

ON THE FEDERAL SENTENCINGGUIDELINES FOR METHAMPHETAMINEearches ofpny comlnentat~rt already thrownuch darkness onis subject, and it isbable that, if flucunmtisue, we shallat all about it."I - Mark TwaiizVoice 1% - ]ulylAugust 2000 - Guidelines for Methamphetamine

D rngs of abuse are identified bymany names of no value for unambiguouslyidentifying the drug.Methamphetamine, a familiar name thatappears to he the chemical name of admg, is actually a "commo~l" namederived from the more descriptive name,N-methylamphetamine, but even thisname is not the tnle chen~ical name ofthe substance. Strect names such as"crank," "speed," "ice," or "crystal"exacerbate the problem of distinguishingamong the foms of methamphetamine,especially considering that "speed" Itashecn nsed to describe drugs other thanmethamphetamine.An attorney cannot avoid using ehemicallydescriptive names for the controlledsubstances with which his clientis involved. They are useful and neccssaryaccounting devices for identifyingthe substances listed in thc sentencingguidelines, hut he does not need to havea chemist's knowledge of how thosenames are derived.The misu~tderstandings in the matterof methamphetamine sentencing beginwith the difference between the definitionsof metha~npl~etamine applied forthc separate ptnposes of convicting andsentencing. The stahltory defnlition ofmethamphctan~ine." any substance(except an i~?jectahle liquid) which containsany quantity of metharnphetaminc,including its salts, isomcrs, aud salts ofisomers ...2," incl~~des the word, '?somners,"from which all the confusionstems. Isomers are defined in thestatute, hut that definition contributesnothing to the typical lawyer's understandingof what they are.IsomersIsomers are three-dimensional entities,so they must be viewed in three dimensionsto be understood. Figure I is to heused to construct a pair of 3-dimensiona1structures representing important featuresofmethamphetamine isomers. Cutalong the solid lines, folded along thedashed lines, and with the correspondinglynumbered sides taped together,hvo four-sided pyramids will he formed.They are identical inshape, volume, andweight; they are made from the samepaper and tape; they both have sidesI'abeled "A," "B," "C," and "D," and ina dark room they are indistinguishable.If, however, they are placed on a table sothey rest on the same-labeled sides --"A"for instance -- and turned so thesides labeled "B" and "C" are visible,those labels are on different sides of thetwo pyramids. No matter how they arehirned, it is impossible to have them reston the same side and not he different inthe orientation of the labcled sides thatare visible. They differ only in how theyare oriented in space. To distinguishthcm one from the other, it is necessaryfo invent an arbitmy system for namingthem and, if they are to representniethat~ipheta~nine, it is appropriate tocall one of them "I" and the other "d."This exactly represents the nature ofmethamphetamine isomers. While thisslight difference seems trivial in light ofthe overall chemical and physical similarityof a pair of isomers, it is of greatsignifican~ in biological systems, beingthe reason why otherwise identicalsubstances pxoduce radically differentphysical and psychological effects.Chemists developed several systematicmethods for nalning isomers ill sucha way that -- to use this pyramid example-- it is pnssible.to specify everythingabout the isomer including the orientationin space of the various sides. Themost universal of these systems is theone created by the Chemical AbstractSewices (CAS). Not only does it givean exact name to each isomer, it giveseach a serial number called the CASnumber that uniqnely applies to that isomcrjust as a person's social securitynumber uniquely identifies him.Regardless of what comnon name,street name, or teclniical name is appliedto the isomer, all are cataloged under thesane CAS number, so the CAS numberscan he used to ameliorate the confusionnow found in the sentencing guidelines.Sentencing Guideline Definitions ofMethamphefanrincThe sentencing guidelines have atvarious times included four categoriesthat apply to methamphetamine; theseare:I. Methamphetamine2. Methamphetamine (ach~al)~3. "Ice"4.L-MethamphetamineILevo-"lce"and "L-Metl~amphetaminekevo-~etha1n~hetanlineL-desoxye~l1edri11e"arc unan~higuously defined; the othertwo categories arc not.July/Augusi 2000 - Voice 19

,urden of Proof

Vo~ce 22 - July/August 2000 Guldetlnes for Metharnphetam~ne

knowledgeable prosecutors immediatelyprior to trial or sentencing will7Similarly, the failure to adequatelyanalyze confiscated drugs has seldombeen encountered as a problem amongreputable laboratories and analysts, hutit is a common fault of local and regionallaboratories where a considerabledegree of incompetence is tolerated.The sentencing guidelines provideequivalencies for certain chemicals designatedas "immediate precursors" tocontrolled suhstances. There are threeparts to this definition, hut the criticalone is that an immediate precursor is"an immediate chemical intermediateused or likely to be used in the mannfacture2"'of a confrolled substance, with"imtnediate" presumably being used inthe normal sense that the conversion ofthis intermediate into the controlled suhstancecan be accomplished in a one stepchenucal process with no other intermediateprocedures required.Immed~ate precursors differ frompharmaceutical controlled substances ina critical way whereas potency or abilityh produce an effect is essentiallyirrelevant to trying or sentenclng forcrimes involving controlled substances,potency or the ability to he convertedinto a usable quantity of a controlledsuhstance is the principal relevant issuewhen considering precursors. A chemicalsuhstance that can't be convertedinto a controlled substance isn't a precursorat all, and one that requires intermediateprocessing steps isn't an inmied~ateprecursor.Consider, for exan~ple, phenylacetone(also called "P2P" or "phenyl-2-propanone"), the most eonnnon chemicalused to produce clandestine methmphetarnine.A chemist can place purephenylacetonc into a flask with scvemlother chemicals, heat them for a fewhours, and crealc racenlic mcthamphetamine,so pure (or nearly pure) phenylacetoneis, by definition, an irnmedmteprecursor of ine?hamphetamine, and it isso defined in the sentencing gnidelines.If, on the other hand, one substitutes adilute solution of phenylacetone inwater for the pure chemical andreproduceseaoh step of the chemicalprocess exactly, no methamphetamine atall wjll he produced because the waterinterferes with the chemical process. Adilute solutian of phenylacetone istherefore not an immediate precursor tomethamphetamitlc.Phenylacetone present in that dilutesolution could be separated and used toprepare the controlled substance, sointent and potential are legifimate issuesfor purposes of trail and sentencing, hutthese require that chemical analysis andappropriate calculations be considered.Table 2 lists the common precursors formethamphetamine and the mixwe ofinethamphetarnine isomers to he expected.The govemmmt has, on several occasions,linked the controlled substanceguideline specifying that "the weight ofa controlled substance set forth in thetable rofers to the entin: weight of themixture or snbstance containing adetectable amount of the controlled snbstance"with very dilute solutions ofunreacted phenylacetone set aside by thechemists at methamphetamine lahoratoriesfor purposes of recovering thepotentially usable phenylacetone forreprocessing. Even though the phenylacetonein such solutions fails the testof being an immediate precursor and theform and substance of the solution clearlyrenders it recognizable as unusable aseither a drug or production chemical, thegovernment has requested and receivedexaggerated and inequitable smtenceson the basis of "'the entire weight of themixture or substance containing adetectable amount of the confrolled snhstance"without giving any considerationto the fact that precursor chemicalsare not controlled substances. Th~smequity is also apparent when one considersthat conversion efficiency -- themunt of drug that can be prodncedfrom a given quantity of precursor -- isbu~lt into the equivalency tables. (Forexample, 1.00 gram of pheny[acetonetheoretically converts to 1.11 grants ofn~ethampheta~mne that would have asentenclng equivalency of 1110 gramsof mmjuana. If, however, one assumcsonly 37.5% efficiency in making theconversion (a reasonable value), then thegram of phenylaoetone produees only0.4 16 gram of methamphetamine havingan equlvelency of 416 grams of mairjuana21,which is identical to that of thephenylacetone used as a starting material.)An interesting composite of fact andconspiracy often arises when immediateprecursors and listed precursor chemicalssuch as ephedrine andphenylaceticacid are included among the items ofseized evidence. Instead of applying thegdeline standards and sentencing onthe basis of the cumulative quantities ofthese substances, the government elicitsexpert testimony from its chemists todetermine the qwltity of cMltmlled suhstanceswhich could have been producedif they had been converted into eontrolledsubstances (often using equipment,techniques, and other chemicals towhich the defendants had no apparentaccess -- or skills to apply them even ifthose materials were available.)Although a conimon practice, it changesthe character of the evaluation of the evidenceh m an ohjeotive computationbased on demonslrable facts to an opinionlimited only by the imagination ofthe witness and the credulity of thecourt.'he Burden of ImmediacyIt is a necessary requirement that thegovernment test each hatch of seizedprecursor chemical to determine itschemical identity, hut to expect eachhatch to be tested to determine whetherit complies with one step convertibilityinto a controlled substance is truly hurdensomeas well as being dangerous.Because most immediate precursorsmust he of reasonably high purity andbecame the techniques of analysis necessaryto prove chen~ical identity alsoproduoe sufficient data to determ~ne thepurityof the chemicals, it would he quitesimple and unqnestionably fair for lbegovernment to fomlnlate a sentence onthe basis of the amount of precursorehen~ical which could he actually heretnevcd by extrachon or distdlationfrom the evidence.JulyIAug~~sl 2000 - Voice 23

I Table 2Commoh ylr;rll130r~ fv.isomers to be expectedlliethamphetami~le and the mixture of methamphetamir.,PRECURSORPRECURSORCAS NO.- -METHAMPHETAMINE ISOMERS PRODUCEDPhenylalanit~, like ephedrine and pscudaephedrinc, mists as two isomers so like cplledrine, it can potentially yiold several posriblc foms ofmethamphetamine. Only thc prodoction of d-methamphetamine from d-phenylala~ 11iw Ihas been reported to date, thcnforc it is the only isalnerlisted in the table.July/At~gust 2000 - Voice 22

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V THE FEDERAL SENTENCIN.lh'RS VOR r\lF,THA7vlPIIFXAn1. "Form" IS not a technical term. In the context of thisdiscussron and to he consistent with the customalylegal usage, the word is used to denote a particularisomer or mixture of isomers of methamphetal~ine.2. 21USCA§812(c) Schedule III(a)(3)3. Methamnphetamine (actual) was called"methamplletamine (pure)" uutil 1995. Forconvemence 111 the remainder of this discussion, onlythe phrase "methamphetamine (actual)" w~ll be usedexcept whem the older adjective issupplied in adirect quotation. The reader may at any pointsubstitute the phase "methan~phetmine(pure)" iu itsplace without harm to the substance of thediscussion.4. "The effects are enantioselective: the (+) isomer[d-n~ethamphetamine] IS about five times as active asthe (-) isomer [I-methamphetanline]." ICE: A NEWDOSAGE FORM OF AN OLD DRUG, Cho, AK,Science, 249, p631, 10 August 1990.5. 21USCA@12(h)(2)(B)6. U.S.S.G. $2Dl.l note (A) (1995)7. Pain, S., "White hot on green," New Scientist, Vol.156 No 2102 (Supplement), p2-3, October 4,1997.8. U.S.S.G. 82Dl.l application note 1 (1995)9. U.S.S.G. s2Dl.l applicationnote 11 (1995)10. U.S.S.G. s2Dl.l applicationnote 1 (1995)11. U.S.S.G. 52Dl.l note (B) (1995)12. The follow~ng equvalencies have been applied:a One gram of methamphetamine is equivalent to 5grams of cocaine, 1 glam of heroin, or 1 kilogramof ma~ijuana.h. One gram of methan~pl~etamine (pure or achlal) 1sequivalent to 50 grams of cocaine, 10 g~ams ofheroin, or 10 kilograms of marijuana.c. One gram of 1-methamphetamine is equivalent to0.2 grams of cocaine, 0.04 grams of herom, or 40grams of marijuana.d. One gram of "Ice" is equivalent to 10 kilograms ofmarijuana.13. U.S.S.G. 82D1.1 ApplicationNote 9 (1995)14, U.S.S.G. 92Dl.l note (A) (1995)15. The Merck Index -An Encyclopedia of Chemicals,bgs, and Phmnaoeuticals, 10th ed :!Meth~lphetamine,"page 850, Merck & Co, NJ,1983.16. U.S.S.G. 52D1 1 note C17. The Decker court acknowledges that the racemicmixtue is a chemically composed of two substances.Nevertheless, it concludes that for practical purposesof rnanufachure and use, it is unique. Chemists areable to agree with this concept without sacrificingscientific rigor as indicated by the ChemicalAbstract Service's assignment of a uniquenameand number to the racemic mixture.18. Dauhelt v. Merrill-Dow Pharmaceuticals, Inc.,113 S.Ct 2786 (1993).19. Proctor and Gamble Co~p., Cincinnat~, Ohio USA20. 2lUSCAgX02(23)(B)21. This use ofthis factor undoubtedly favors thedefendant. Since the methampheta~nine producedfrom the precursor is the actual drug, its equivalenceas methamphetamine (actual) would be 4.16kilograms of marijuana per gram of phenyl-2-propanone.22. Trade-named Cydril or levamphetamine23. Skumer, H., "Methamphcfamine Synthesis VlaHydnodic Acidhd Phospho~us Reduction ofeohedrine." Forensic Science Internat~onal. 48,123-The most influential Texas Lawyers ofthe 20th centu~y include the followingTCDLA members or former members:Warren Bucnett, OdessaDick DeGuerin, HoustonPercy Foreman, HoustonGerald Goldstein, San AntonioRichard "Racehorse" Haynes, HoustonOliver Heard, Jr., San AntonioPat Maloney, San AntonioRoy Minton, AustinF-JulylAugust 2000 - Vorce 29

US. Supreme Courthttp://supct.law.corneU.edu/supct*** Summaries from website.CASTILLO ef aI. v. UMTGD STATES,No. 99-659, Cert. to the 5th Circuit(179 F.3d 321) Reversed andRemanded, 6/5/99; Opinion: Breyer.Petitioners were ind~cted for, amongother things, conspiriug to murder federalofficers. At the time of their trial, 18U.S.C. 5 924(c)(1) read in relevant part."Whoever, during and in relat~on to allycrime of violence. , uses or carrres afireann, shall, in addition to the punishmentprovided for such crime. , be sentencedto imprisomnent for five years, .and if the firearm is[, e.g.,] a machinegun,. to imprisonment for th~rlyears!'The jnry determined that petitioners hadviolated this section, and at sentencing,the judge found that the firearms includedmachineguns and imposed themandatory 30-year prlson sentence. TheFifth Circuit affirmed, concluding thatstatutory words such as "machinegun"create sentencing factors, not elementsof a separate crime.Held: Section 924(cl(l) usesthe word "machine~un"(and similarwords) to state an element of a seaa--ravated crime. The statute'slanguage, structure, context, history, audother factors helpful in determining itsobjectives lead to th~s conclusion. First,while the statute's literal language, takenalone, appears neutral, its overall stmclurestrongly favors the "new cnme"interpretailon. The first part of§924(c)(l)'s openmg sentence clearlyestabl~shes the elements of the basic federaloffnlse of usmg or carrying a gunduring a crnne of violenoc, andCongress placed that element and theword machinegun m a single sentence,not broken up with dashos or separatedinto subsections. That, along with thefact that the next three sentences referdirectly to sentencing, strongly suggeststhat the entire first sentence defiuescrimes. Second, courts have not typicallyor traditionally used fireann types(such as "machinegun") as sentencingfactors where the use or canying of thefirearm is itself the substantive crimc.See Jones 1! Uitiled Smles, 526 US. 227,234. Third, to ask a jury, rather tl~an ajudge, to decide whether a defendantused or carried a machinegun wouldrarely complicate a trial or risk unfairness.Cf.Almenda~ez-Torrs 1! United Stales, 523US. 224, 234-235. Fourth, the legislativehistory favors interpreting $924(c)as setting forth dements rather than sentencingfactors. Finally, the length andseverity of an added maudatory seutencethat turns on the presence orabsence of a "machinegun" (or any ofthe other listed firearm types) weighs iafawr of treating such offense-relatedwords as referring to an element in thiscontext. Such considerations make this astronger "separate crime" case thaneither Jones or Almendarez-Torrescasesin which this Court was closelydivided as to Congress' likely intent.WITED STATES a HUBBELL, No.99-166, Cert. to D.C. Circuit (167 F.3d552) Affirmed, 6/5/00; Opinion:Stevens; Dissenk Rehuquist.As part of a plea agreement, rcspondentpromised to pmvide theIndependent Counsel investigating mattersrelating to the WhitewaterDevelopment Corporation with informationrelevant to his investigation.Subsequently, the Independent Counselserved respondent with a subpoena callingfor the production of 11 categories ofdocmuents before a grand jury in LittleRock, Arkansas. Respondent appearedbefore that jury, invoked his FifthAmendment privilege against selfincrimination,and refused to statewhether he had the documents. Theprosecutor then produced an orderobtained pursuant to18 U.S.C. 5 6003(a)directing respondent to respond to thesubpoena and granting him immunity tothe extent allowed by law. Respondentproduced 13,120 pages of documentsand testified that those were all of therespousive docun~ents in his control.The Independent Counsel used the documents'contents in an investigation thatled to this indictment of respondent ontax and fraud charges. TheDistrict Conrtdismissed the indiclment on the gro~mdthat the Independent Counsel's use of thesubpoenaed documents violated 18U.S.C. 3 6002-which provides for useand derivative-use immunity-because allof the evidence he wonld offer againstrespondent at trial derived either directlyor indirectly from the testimonialaspects of respondent's immunized actof producing the documents. In vacatingand remanding, the Conrt of Appealsdirected the District Court to detenninethe extent and detail of theGovernment's knowledge of respondent'sfinancial affairs on the day tb subpoenaissued.If the Government could not demonstratewith reasonable particularity aprim awareness that the documentssought existed and were in respondent'spossession, the indictment was tainted.Acknowledging that be could not satisfythe reasonable particularity standard, theIndependent Counsel entered into a conditionalplea agreement providing fordismissal of the indictment unless thisCourt's disposition of the case makes itreasonably likely that respondent'sinununity would not pose a siguificautbar to his prosecution. Because theVoice 30 - JulyIAugust 2000 - Sign~ficant Decissions Repurt

agreement also provides for the entry ofa guilty plea and a sentence should thisCourt reverse, the case is not moot.Held: The indictment aeainstp(a) TheFiflh Amendment protects a personfrom being "compellcd in any criminalcase to ha a wltnes against himself."The word "witness" limits the relevantcategory of compelled incriminatingcommunications to those that are"testimonial." In addition, a person suchas respondent may be required to producespecific documents containingincrtminatmg assertions of fact or beliefbecause the creation of those documentswas not "compelled" within the meaningof the privilege. See Fisher v. Uniled&.&, 425 US. 391. However, the actof producing subpoenaed document mayhave a compelled testimonial aspect.That act, as well as a custodian's compelledtestimony about whether he hasproduced everything demanded, maycertainly commn~~icate informationabout the documents' existence, custody,and authenticity. It is also well settledthat compelled testimony communicatinginformation that may lead to incriminatingevidence is privileged even iftheinfolmahon itself is not inculpatory.(b) Scctlon 6002 is constitutionalbecause the scope of the "use and dedvative-use"immunity it provides is coextensivewith the scope of the cnnstitutionalprivilege against self-incrimina-tion. Kastiw v. United S/a/er, 406 US.441. When a person is prosecnted formatters related to immunized testimony,the prosecution has an aff~rmatrve dutyto prove that the evidenee it proposes tousc is derived from a legitimate sourcewholly independent of that testimony.Id, at 460. This ensures that the grant ofimlnunity leaves the wltness and theGovermnent in substantially the sameposit~on as if the witness hadclaimcd hisprivilege in the grant's absence. Thecompellcd testimony relevant here is notto be found in the contents of the documentsproduced, but is the testimonyinherent in the act of producing thosedocuments.(c) The fact that the Governlent doesnot mtend to use the act of production inrespondent's crimmal trial leavesopen the separate question whether it hasalready made "derivativeuse" of the testimonialaspect of that act m obtainingthe indictment and preparing for trial. Itclearly has. It is apparent frorn the suhpoena'stext that the prosecutor neededrespondent's assistance both to identifypotential sources of mformation and toproduce those sources. It is undeniablethat providing a catdog of existing documentsfitting within any of the I1broadly worded subpoena categoriescould provide a prosecutor with a lead toincriminating evidence or a link in thechain of evidence needed to prosecute.Indeed, that is what happened here: Thedocumcnts sought by one grand jury tosee if respondent had violated a pleaagreement led to the rctum of an indictmentby another grand jury for offensesapparently u~uelatcd to that agreement.The testimonial aspcct of respondent'sact of prodi~ction was the first siep in achain of evidence leading to this proscution Thus, the Court cannot acceptthe Government's submission thatrespondent's nmnunity did not precludeits derivative use of the produced docnmentsbecause its possession of the doe-uments was the fn~it only of the simplephysical act of production. In addition,the Government misreads Fisher v.United States, 425 US., at 411, andignores [I-e,465 US.605, in arguing that the conlmunicativeaspect of respondent's act of productionis insufficiently testimonial to support aprivilege claim because the existenceand possession of ordinary businessrecords is a "foregone conclustw~."Unhke the circumstances UI Fisher, theGovernment haas shown no prior knowledgeof either the existence or thewhereabouts of the documcnts nltimat lyproduced here. In Doe, the Court foundthat the act of producing several broadcategories of general business rccordswould involve testin~onial self-incrination.Fifth Circuithttp:llsm.ca5.nscourB.gov/USA K AENOLD, Nu. 99-30916; WDLouisiana; Reversed, 6/6/00holdpled guilty to a federal offensecomnuttcd in Feh. 1999. He had a priorDWI conviction froma city court in Oct.1988, beyond the 10-yr period beforecouunission of the federal offense. InNm. 1988 he was placed on probationfor the DWI, but that was revoked, andhe began serving a 90-day sentencc mSept. 1989, within 10 yrs of the instantfederal crime The PSR included theDWI in calculating the sentence, butArnold objected because said offenseand sentence pronouncement hadoccurred more than 10 yrs before thefederal offense, and thus was excludedunder USSG 8 4AI.2(e)(3). The guidelinerange without the DWI was 18 to 20months; with it the range was 21 to 27months. The district court assessed themaximum of 27 months.pgcriminal conduct durine the 10 vrsp-of conviction. district court must look-pEE&!Lsp e T h i s holding is consistentw~th U.S v. Cai& 10 F.3d 261 (5thCir. 1993), in which Court hcld that"[a]djudication of guilt can only occurwhen the court pronounces the defendant'sgu~lt!' Court rejects government'spos~tion that sentence is "imposed"when the term of imprisomnent begins.Court also conducts a stahrtory analysis.USSG g 4A1.2(e) requires the sentencingcourt to count prior sentencesexceeding 13 months that are within 15yrs of the instant offense. $ 4A1.2(e)(3)reqnires counting any other sentence if itwas within 10 yrs. Court concludes thatunder 5 4A1.2(~)(2), prior sentences thatdo not exceed 13 months are counted forpurposes of determining a criminal historyscore, hut only if the sentencingcourt pronounced the tenn of incarcerationwrthin 10 yrs of the commencementof the Instant offense. BecauseArnolds's prior DWI should not havebeen counted, his sentence is vacatedand case is remanded for resentencing.U.S., No. 98-40898.Dismissal of 8 2255 PetitionREVERSED. Offense: CocaineJulylAugust 2000 - Voice 31v

DMribution. Opinion issued May92000. Opinion percuriam.The qnwtion presented is whether thepetitioner's failure to timely file his $2255 motion is excused by reliance onacourt order suggesting that the filingwas timely.Held: The Petitioner's late filing ofhis 8 2255 motion is excused byreliance on a conrt order whichauoeared to allow it Patterson fild atimely $ 2255 motion attacking his federalconvictioi~. He shortly after withdrewthe petition so that hc could laterrefile it after seekmg assistance fiom a"writ writer!' Patterson erroneouslybelieved that he would have one yearfrom the time he dismissed his habeaspetition to re-file. As that day, April 30,199% approached, he filed a motion inthe district court seeking anextension ofthat "deadline." The court denied themotion for extension, but that motionimplied that the writ would be timely iffiled by the time mentioned byPatterson. Patterson filedbefore April 30.The FifUl Clrcuit noted that equ~tabletolling of the oneyear deadline applicableto 5 2255 actions is available only in"rare and exceptional" circumstances.However, it concluded that Patterson'scasc fell within a recogmzcd category ofequitable-tolling cases which approvetolhng when the petitloneriplaintiffdetrimentally relies in good faith on acourt order which unw~ttingly sets a duedate outside the limitations period.Here, Patterson credibly churned to haverelied on the court's order iniplyingthatthe writ would be timely if fited by April30, and did in fact file by that dale.Thus, he is elrgihle for equitable tolling.IN RE McGINN (TX), No. 00-10367.Request to file successive state Laheasapplication DENIED. Offense:Capital Murder. Sentence: Death.Opinion Issued Jnne I, 2000. Opinionper curian~.Petitioner, aTexas death row inmate,songht leave to file a successwe federalhabeas corpus application to seek authorizationfor DNA testing to prove hisinnocence.Held: Because the Petitioner hasnot sl~own that the advanced DNAtestine methods he claims will nowexonerated him did not exist when hefried his initial federal habeas uetltion,he cannot satisfv the standardreauired to permit consideration of asuccessive habeas anulication,McGinn was convicted in 1995 of mur-der. His first federal habeas petitionwas denied in the district court on Feb.23, 1999. He now seeks authorization tofile a second habeas pet~tion m order totake advantage of advances inDNA tesl-ing that have oceurred sin~e his 1995hd. The court denies the authorization.28 U.S.C. g 2244(h)(2)(B](i) forbids circuitcourts to authorize the filing of succssive federal habeas petitions unlessthe "factual predicate" for them "couldnot have been discovered previonslythrough the exercise of due ddigence."McGinn claimed that he qualifies underthis provision becans he could not,even using "due diligence," have takenadvantage of DNA techuiques whichwere not developed until afker his trial.The court disagrees, pointing out that hecould have sought an opportunity to performsuch testing at any time prior toFeb. 23, 1999, hutmajor and, in anyevent, Hernandez's trial eonnsel amplyattacked Grigson's testimony with thetestimony of five other experts whoasserted that GrigsmADOLFO GIL HERNANDEZ, No.99-10446. Dismissal of habeas pefitionAFFIRMED. Offcuse: CapitalMurder. Sentence: Death. Opinionissued: May 30, 2000. Opinion by:DeMoss. had been wrong repeatedlyin predicting future dangerousness.Hernandez claimed Dr. RalphErdmann's claim to have inspected thevictim's heart and to have found that shedid not die from a heart attack wasa lie,because antopsy photos showed no incisionon the victim's heart that wouldhavepe~nntted sucll an inspection. Evenassuming that Erdmann unequivocallytestified to examining the victun's heartand that such a claim was untrue(Erdmann is notorious for having doctoreddozens of autopsies in order to fitthe prosecution's theory of the case), thecourt finds the lie immaterial, sinceErdmann testified that the victim waskilled by bhmnt force trauma to thc headand there was overwhehning evidencethat tins heating had in fact occurred.Court of CriminalAppealshttp:llw7m.cca.cnurts.state.tx.usIssues: (1) were trial counsel ineffectivefor "failing to recognize the valid~ty andimportance of an alcoholic blackoutdefense"; and 0) did the prosecutionviolate the Eighth Amendment by sponsoringallegedly perjured testimony by apsychiatrist and medical examiner duringthe trial.Held: Because Texas law strictlyJimits the relevance of voluntaryjntoxication to nmst trial issucs. trialconnsel was not ineffective for failingto nnrsue an "alcoholic blackout"defense for cabifd murder." Althoughinvoluntary mtoxlcation can, a defendantcannot claim that his intoxicationww involuntary merely because he is analcoholic. Because the evldenceHernandez songht to develop wouldhave been duced to mitigate his punishmentbecause irrelevant to the guiltphase of his trial, the trial counsel wasnot ineffective for failing to develop it.In addition, Hernandez' proffered testimonycould not have been intmHernandez claims that h ~s trial attorneywas ineffective for failing to developand present an "alcoholic blackout"defense at his trial. Hernandez claimsthat there was avalable btt unp~esentedev~dence that he had a history of alcoholicblackouts aud that he was disorientedwhen he was picked up one houraftathemurder. The court observes tllalvoluntary mtoxicahon in Texas cannot"negate the elnnent of specific intentrequired Sectron 8.04 of the Texas PondCode provides that in order for the juryto he iwtrncted on voluntary intaxicationas a mitigating factor at pnn~shmenfthe defendant must first prove that thevoluntary intoxication rendered him"temporardy insane," and Hernandezhas not done so. [Editor's note: Theappl~cat~on of the 8.04(h) instruction todeath sentencing proceedings pmxentsVoice 32 - fuly1August 2000 - Slgn~frcant Dec~ssions Report

severe constitutional problems hccausethe Eighth Amendmneut requires capitalsentencing jurors to be permitted to considerand give effect to any evidence ofa defendant's character, background andcrime which might serve as the basis fora non-death sentence, auld 8.04(h)appears to crclude consideration ofintox~cationwhich does nut rise to thelevel of temporary insanity. Althoughthrs argument has been repeatedly rejectedby the Filth Chcult, that's true ofmauy arguments which have later prevailedin the Supreme Court. The&.04(b) ohjechon should still he urade.A persuasive example of it can be foundin Judge Gana's dissenting opmion it1Driukard v. Johnson, 97 F.3d 75 I.]pine the testimonv of Dr. Jamespowine to lack of materiallt& Grigson,defending himself from a charge of prostatebias lied ahout the amount of timeshe had found defendants uot to be dmgerous.The court finds that eveu ifGrigson lied, the lie was not Hernandezclain~s his punishment phase proceedin@violated the Eighth Amendmentkrequirement of heightcued reliability incapital sentencing proceedtugs becausethe State offered false testimony fromDr. James Gr~gson, a prosmrtion psychiatrist,and Dr. Ralph Erdmann, themeiiical examiner. Hernandez clannedmajor and, in any event, Hernandez'stnal counsel amply attacked Grigsou'stestimony with tile teslimony of fiveother experts who asserted thatGrigsonhad becn wrong repeatedly in predictingfuturc dangerousness. Hernaudczclainled Dr. Ralph Erdmann's claim tohave inspected the victim's heart and tohave fo~md that she did uot die from aheart attack was a lie, bwusc autopsyphotos showed no iucision on the victun'sheart &at would have permittedsuch an inspection. Even assuming thatErdmann unequivocally testified toexamining the victim's heart and thesuch a claim was untme (Erdmann isnotorious for havmg doctored dwens ofautopsies ill order tu fit the prosccutio~~'~theory ol'tha wsc), lhc iemuterial, sinceErdmmn testified that the victnn waskilled by blunt force trauma to the headand thw was overwhehning evidencethat this beating had in fact occurred.Court of CriminalAppealshttp://~w.eca.conrts.state.tx.nsOPINION ON APPELLANT'S PDR-JOHN ROGER LEFEVERS v. State,No. 540-99, from Dallas County;Reversed, 6/7/00; Offense:Harassment; Sentence: (not in opinion);COA: Affirmed (101//348 -Dnllas 1998); Opinion: Johnson,joined by nlcCormick, Meyers,Kellcr, Price, Holland& Womnck;Concurring Opinion: Kcasler.7he basis of Appllant's convictionwas an allegation that he told tlie complainantover the phone, "I waut to feelyour breasts!' The statute, TPCB 42.07makes it an offense if the defendantmakes an obscene comment over thetelephoue. For purposes of thc statute,"obscene" is defmed as "containing apatently offensive description of or asolicitation to conunit an ultitnate sexact, including sexual intercourse, masturbation,cunnilingus, fellatio, or anilingus,or a description of an exmtniyfunction!' The phrase "ultimate sex act"1s not defmed. COA held that, although"I want to feel yaur breasts" did uotdescribe anultimate sex act as defined inthe statute, other statutes recognizedfondling breasts as a sexual act. COAfound that the phrase described ail ultimatesex act because it was languagethat explicitly described an act that isncwsarily sexual in nature and wasclearly offensive to thc complainant.Thus, tho evidence was sufiicient. PDRwas granted to determine wheth~r thephrase "I waut to feel your breasts"desoribes an ultimate sex actHeld: Tho whrase "I want to feelyour breasts" does not dcscribe anultimate sex aet for numoses of theCCA does a statutoryaualysis, and examines other state'sstatute defining "ultimate sex acts."(See the footnotes.) In p 42.07, eachenumerated act involves genital contact,anal contact, or an excretory functioli.The statement "I want to feel yourbreasts" does not refer to an actionencompassed by any of those three categories, and as such, does not describe an"ultimate sex act" as defined in 842.07(6). Judgment is thereforereversed, and case is remanded.Concurring opinion: Keasler ooncursbecause he thinks reversal ofAppellant'scnnviction is due to "an overlystrict legislative definition of'obscene' [and] strikes me as 0ntrageoU.S.I urge the Logislahire to anzend tlusstatute to mclude this kind of behavior!'DERRICK GRAHAM v. State, No.1621-99, from Harris County;Revased, 6/8/00; Offense: Capita1Murder; Sentence: Life; COA:Affirmed (NP - Houston 114tbl 1999):Opinion: Meyers (unanimous).Appellant participated in a drng-relatedrobbery in which three persons werekilled. He was charged as a phlay in asingle 3-pamgraph indidlnent allegingthat he commined capital murder by (1)causing the death of Heimar Prado andDanny Giraldo during the same criminaltransaction; (2) causing the death ofHnrtado while in the course of robbinghim; and (3) causing the death of JesusGarcia-Castro while robbmg him. Trialcourt refused to grant Appellant'srequested severance, instead agreeingwith the Stilte that the indictment didnot join two or more offenses within themeauing of TPC $3.04, hut just allegeddifferent theories of committing onecapital murder. PDR was granted todetermine whet& the ind~ctmeut onlycharged one offense.Held: COA crrcdin concludinethatfhcoffenseand that 6 3.04 did not np1yfor that reason. In afirmiug, COArelied on Hathorn, 84&//101 (CCA1993), in which the iudictment alleged(1) nmrder in the course of mbhety andburglary; (2) murder for remuneration;and (3) murder for hire. Hathom 1s di5tiuguishahle because these were alternativetheories of killing one victim. Inthis cam, there arc multiple murdersalleged rather thau moltiplo theories of

commission. The indictment alleged twcdistinct capital offenses - capital mrdaofHurtado and capital murder of Garcia-Castro. CCA also says the final paragraphcannot be reconciled as chargingthe same capital offense as the first twopivragraphs. Because COA erred in concludingthat the indictment alleged onlyone offmse, and thai 8 3.04(a) did notapply for that reasan, judgment is vacatedand cause is re~nanded "for furtherprwedingsconsistcnt with this opinion!'PDRs Granted0282-00, BEARD, WILLIAM E;06/07/00; A; Dallas; DWI: 005//18831. Tbe Conrt of Appeals decided animportant qnwlion of law - whether thetrial court erred by admitting into evidencetestimony relating to the resultsof an intoxllyzer test without first requir-mg the state to satisfy the requirementsof K m - in confiict with thiscon& decisions in Kelly and Hanman.0243-00, FREEMAN, RONNIE;06/07/00; S @A's #I & SPA'S #2);Lubbock; Murder:I. Does the aial cowl abuse its daeretionby disallowing defense eounsel toinform vanremembers of faots of theinstant offense and ask how the factswould affect t he veninnembers' verdictat guilUinnocence and punishment?2. Does a question to a prospective jumras to whether tho fact that the victim wasa two-week old child would have anyeffect on their verdict, whether it he onguilt-innocence or on punishment, constituiean improper commitment of thejuror to a course of reasoning, or anattempt to dtsoover the juroi's mentalprocesses or the wcrght he or she wouldgivepart~cular testimony?COURT OF APPEATSDONOVAN K STATE, 01-98-00427-CR, 5/4/2000.Court holds that a defendant may notfile a ination for new trial affer bungplaced on deferred adjudication. Here,after assessment of the deferred, thcdefeudant filed MNT alleging ineffect~veassistance of counsel. Absent a MNT, asnoted in the dissent, the defendant wouldhave bean unable lo substantiate hisallegationof IAC hecause of an inadequaterecord. Court holds that defend;u~t mustfirst mdve for adjudication of guilt, hesentenced to penitentiary (offense was a3g offense), and then move for a newtnal.GUZMAN KSTATE, 05-98-02164-CR,5/4/2000. Important case.This is an appeal based on a Batsonchallenge. State explained it peremptorychallenge in part, because the casewas the murder of a woman and slatepreferred women jurors to men. Slateadvanced two other reasons that hadnothing to do with gender. Court holdsfirst that the explanation based on thenature of the case was gender based andtherefore violated Batson. Even if thisimpermissible reason wes only part ofthe reason for removing the venireman,it nevertheless violates Batson and casemnst he reversed.LEE K STATE, 112-99-00028-CR,4/28/2000.An outcry statemenf, to he admissible,must he the fmt statement whichdesor~hes the offense. Hcre, the complainanttold his baby sitter how he hadinjured himself. At the hospital, hc tolda police officer the detail of the offense.Court holds that first statement wasnothing more than a mere allusion to apossible offcnse and therefore was nutan outcry statement Statement to officerwas ontcry and, thus, admissible.GUARDIOLA K STATE, 14-95-01073-CR, 5/4/2000 (on motion for rebaring).On rehearing, court holds to its originalopinion ill one respect by holdingthat State may not use a grand jury suhpoenain lien of an arrest warrant. To doso is an ahnse of the grand jury process.Court holds that resulting confessionwas attenuated h n illegal conduct andthus, admiss~ble.4UTRY K STATE, Ol-98-00667-CR,5/25/2000.Here the defendant was seen nwwhat looked to the officers as a drugtransaction. A few minutes later, thedefmdant talked to one of the parties tothe drug transaction. Officer thendetained the defendant's car until dogwuld he obtained for a "snifP search.Court holds that because the police sawnothing that resembled criminal activityby the defendant, the officers hadno rea-sonable suspicion to hold his car for ac a h search.GONZALES K STATE, 01-98-01289-CR, 5/25/2000.When Texas and sister state have difkreotmles of evidence on an issueofprivilege ( here priest penitent), it is lawof the state where the conversationoccurred that controls. Here, the defendamsought religious counseling frompastor in California whm the law mandatesprivilege only if the religious faithin question demands that sue11 conversationsbe kept secret. As religion heremade no such demand, there was noprivileged conversation.-, 06-98-00019-CR, 5/24/2000. Important case.Court concludes that rcfusing to allowdefmse counsel to question a juror or fortrial court to propound questions, wasarm of constitutional dimension.Beeawe harm could not adequateiy beevaluated, court could not concludebeyond reasonahlo doubt that euor washarmless and case was reversed. Courtconelndcd that constitutional error standardapplied because the consfitutionalright to effective assistance of counselincludes the right to adequately andeffechvely voir dire the jury to identifyunqualified jurors. This includes theright to question those already on thejury about whom questions of fairnessarise after case has connnenced.GOWN K STATE, 09-99-190-CR,5/17/2000The defendant was convicted ofattempted escape from a penal institutionwhile-io prison for a 3(g) offense.Ha indichnent alleged two prior firstdegrcc felony convictions. The offense,Voice 34 - julylAugusr 2000 - Signihcant Decissions Report

Cause No. ___STATE OF TEXAS5 IN THE COURT5VS. 8 COURT DESIGNATIONCOUNTY, TEXASMOTION IN LIMINE NO. -(OTHER PROCEEDINGS)TO THE HONORADLE IUDGE OF SAID COURT:COMES NOW ***, the Defendant in the above styled and numbered cause, and respectfully requests thisl~onorahle Court to instnict the prosecution not to mention, allude to, or refer to, directly or indirectly, duringany stage of this trial, including but not limited to the voir dire examination, opening statements, and thedirect and cross-examination of any wilness, the fact that the Defendant herein is or may have been involvedin another legal proceeding arising froin the same facts of this case or the result, orders or judgment resultingfrom that case, until such time as a hearing has been conducted out of the hearing of the jury to doterminethe admissibility of any such testimony.The Defendant further requests that this Court inst~ct the prosecu~tion to advise the Court prior to elicitingany such testimony in order for the Court to excusc the jury and conduct a bearing outside the presence ofthe jury, without the necessity of counsel for the Defendant having to object to said testimony and requestthat the hearing be held outside the presence of the jury.WHEREFORE, PREMISES CONSIDERED, the Defendant respectfi~lly prays that the honorable Cowl willgrant this hisher Motion 111 Limine No. -.Respectfully Submitted,ORDER01% this the __ day of , ZOO-, came on to be heard the Defendant's Motion InLimiue No. -(Other Proceedings) and the same is hereby GRANTED. The prosecution is ordered toadvise the Court prior to eliciting my testimony that the Defendant herein is or may have been involved iaanother lcgal proceeding arising from the same facts as this case or the result, orders or judgment resultingfrom that case, until such time as a hearing is conducted outside the presence of the jtuy to determine theadmissibility of such testimony.SIGNED this __ day of,ZOO-.JUDGE PRESWINGVoice 36 - JulylAugust - Motion of the Month

---- -CDLP aoes to South Padre island Julv 20 and 21.Bring your family and friends down to the beachfor fun and sun.If you prefer West Texas. join us in Alpine--August 4and visit the Davis Mountains. McDonaldObservatory and the mysterious Marfa Lights.End the summer with gumbo, jambalaya and jazzmusic in New Orleans, September 7 - 8. We've goto hotel across from Horrah's on Canal Street foronly $1 19 o night.from Mark BennettWilke~ His life and CrimeZ Winston Schoonoverfrom Bill HarrisGates of the AlamoBQ &A Twist at fhe Endfrom Warren ClarkClarence Darrow for the Defense,lrving StoneAnatomv of a Murder, Robert TraversFear on Trial. John Henry Faulkfrom Tony VitzOJ The Lasf Word. Geny Spencefrom Fred TatumThe Great Mouthoiece -about William FallanAttornev for fhe Damned- about ClarenceDarrowLeibowik - about Sarnuei Lelbowitz--aboutPercy Foremanfrom Drck Priceby William BernhardtPrimarv Justice. Blind Justice. Deadly Justice.Cruel Justice. Naked Justicefrom WAnn JohnsonM Y , William KunsterThe Rooe. the Chab and the Needle, MarquartSorensonfrom Jack Schutz"A Few Good Men""As Good As it Gets""inherit the Wind"Clarence Danow""Gideon's TrumpeP' (story of Gideon v Wainright)"Comwulsion" ILeooold-Leob murder trial withfrom Bob Leohey and others"Judgment at Nuremberg"from Afon Kazdoy'1 am a Fugifwe from a Chain Gong" staning Paul Muni'The Postman Always Rings Twice" starring JohnGarfield and Lana Turner"Witness for the Prosecution" starring CharlesLaughton and Tyrone Powerfrom Katherine Drew"in the Nome of the Father (great Brady claim)from Randy Wilson - (who practices law inbetween watching movies)"12 Angry Men" starring Henry Fondo'The VerdicY stoning Paui Newnan and Jack Warden"Primal Fear staring Richard Gere"And Justice for All" starring Al Pacino'The inside? starring Al Pacino and Russell Crow"A Time to Kill" starring Mathew McCanahey andSandra Bullock"The Chamberustorring Gene Hackman"Ghost of Mississippi"8farring Alec Baldwin andJames wood"Amistadusfarring Anthony Hopkins"The Music Box" starring Jessica Lang"Class Action"starring Gene Hackman"from the Hip""Anatomy of a MemberS'staning James Stewartand Lee Renlickfrom D'Ann Johnson"My Cousin Vinnv'To Kill a Mockingbird""Thin Blue Line"@+9 JuiylAugust 2000 - Voice 37

turv nullificationsJuries have refused to sentence people to diesince jury tri- and eight Banknotes, value of 10E each, worth the same sumals began. Medieval juries fveqllently acquitted guilty of 39s."5 Theft of over 40 shillings was a capital offense.defendauts who would otherwise have heen executed. In 1830, over 200 bankers complained that punishingBecause the English "Bloody Codes" punished over 200 forgery with deathprevetited conviction of forgers. "Even theoffenses with death, juries often spared those wllo would 0th- possibility of the inflictmn of death, prevents the prnsccution,erwise have paid fie ultin~ate penalty. Blackstone referred to convictiorr andpunish~nent of the aiminal and thus endangersnullification in capital cases as "pious perjury," explaining the which it is iutellded to prntect"6 l-he ballkers"this ... does not at all excuse ow commonbelieved an excessively cruel law, beinglaw ... &om the imputation of severity, butunenforceable, failed to discourage crime.rather shongly confesses the oharge."l EvenApproximately one iu four death-eligiblejudges hesitated to invoke the frill wrath offelonies tried between 1805-1810 ended inthe law, encouraging juries !a nullify:aequi€lal.l One eighteenth-cenhuy sourcet I , , t t /id is reported:'Eying a prisoner af fhe Old Bailey 011 achatge ofstealing in a dwelling house lo theThe acqui/uil(nls u~ill gertefolly be found tovalue offorty shillings, when this uw a capid~ieldql Imv md in the attach mostly to srnfl/i offences n'hich aleml offense! Lofrl Manrfield advised the jurypunishable with deafh: whets Juries do nottofind a gold trinket, fhe ss&ect of the it~dicf-conside,. tlre crime deserving so selws apanwent,to be of less value. The p~osecuforishrnerrt, the delinqueiif receives no pnrishe~claimed,with mdrgnafion, "Under for f~merit at nil If nll we~e comicfed wlro wen?shilli~igs, my Lozd! TYI,; the fasl~ron, alone, realll,grriIfy oftlrese snrallaffences. tlre nu~rrcostnie ?nore ihal~ dorrble the arm " Lodber of victims to tlte severify oftheLnw wouldMarrsfied calmly absened, "Godforbid, ge~rtlernarr,we should hang o man for fashion'ssake!" Tltrs IS a highly significant episode for LordMa~tsfield Because amelioration was colnmon 111 then cases by underwasnot a lenientjudge. 2valuing properly, aitd because the ~najority of capital offeusmThe Bloody Codes lasted until the mid 18M)'s, by whichtime jury opposit~on had limited the death-penally to the mostviolent criminals. Even those the Bloody Codes were intendedto protect con~plained that capital laws were futile, becausejuries refused to convict 3 An 1819 petition to Parliamentcomplained that unless the Bloody Codes were repealed:[T/k inciease of crimes mrst be pmgressi~w~ because,sltung as Ne flze oh/igaliolrs upon all good s~~bjects lo fls~islllze arhni~~istration ofjustice, they ale o~qmve~ed by le~dernersforlrfe - a aendertms n41icl1, o~iginating in the mildp~scepfsof our rei~gion, is ad~~ancmng, and will continue toadva~rce. as there docfr$~es become vtore deeply iner~lcatedinro the rnirrds of the conrr~zuriit), 4Althoughit is usually difficolt to know in which cases juriesnull~tied, this petition referenced two unamb~guous cases.Inone, a jury found a 10s note to be woah 39 sl~illings; in another,the jury "fonnd two bills of exchange, value of 10f each,Voice 38 - ]uly/August 2000 - Jury Nulification in Capital Casesduring the eighteenth century were property cnlnes? the 25%acquittal rate no doubt understates ~ury mistance to theBloody Codes.Early American law often presoribed death for minor offenses.In Souflr Cafolim? a Bennslflo, a jury found Bennett stolegoods "worth less ... than twelve pence," although the goodswere clearly more valuable. Bennett was acquitted of grandlarceny and convicted of petty larceny, preventing his hanging.Jury resistance to capital punishment was so great that m1820 Justice Story began "death-qualifying" juries, excusingQuakers fm~n a capital case, fearing they would not convictdue to their religious beliefs. "Bccause mandatory death schemes led to jufy nullifictttion,many states created degrees of homicide. Only first degreemurdcr was a capital cri~ne.'~ Further, several states restrictedthe scope of capital punishment. South Carolina, which165 caoital crinies in 1813. had onlv twenlv-two on the booksby 1850. Michigan, in 1845, became the first state to abolishcapital punishment. '3Degrees of murder created a new problem. juries

were convicting murderers of lesser offenses, so as to sparetheir lives. To remedy this, Tennessee, in 1837, gave captaljurots discretion m sentencing; other states followed suitIhs discretion became intcgral to thc jury's role in capitalcases.14 The federal government gave capital jurors sentencingdkcretion in 1897. 15Some jnrors reject capital punishment under any circumstances.These ju~ors would make the death penalty unworkable,unless courts remove all those with qualms about thedeath penalty from the jury. Ergo, courts began "death-qnalifying"juries. How great an objection is reqnired for exclusion,and what effect death-qnalificat~on has on jury verdicts,remain debatable questions.Jury independence affects cvery aspect of capital punishment.Every death penalty scheme in America is based oncontrolling jury d~scretion to remedy the "athttrariness" withwhich capital sentences were meted ont prior to FIIIFI~~IJ iiGm&J6 But tho Court never foundju~p discrefion respon-sible for the unequal application of tlw: deathpc~~alty. Studiishow that while juries exhib11 some bias or arbitrariness insentencing, prosecutors bear the brunt of the responsibility. l7July select~on procedures in capital cases are untmstworthy.Death-qualified juries appear to be inherently biasedtowards con~iction.~~ Deatll-qual~fication depr~ves defendantsof a jury selected from a fair cross-section of the mmmunity.Minorities, women and l~berals are excluded at ahigher ratc than white males or c011servatives.'9 Yet eliminat-ing death-quslification could mean aholisl~ing cap~tal pm~ishment.In Pemv v. Lwmurh, 20 the Supreme Coua held theTmsdeath penalty system unconstitutionally failed to allow jurorsto act on mnigatmg evidence of a defendant's mental retarda-tion. Thc l'caas Cu~~ct of Cri~ninal Appcols invoked jury IIIIIlllicstionto ranalv the dcticicncicr of thc'lcxas canitsl selltencingsystem. How tins reflects on jury nullification in othercases is a question netther Court has yet addressed.Furman and its Progeny:Resolving the Disparities in Capital SentcrreingThc constitutionality of jury sentencing dmcretion III capitalcases was examined by the Supreme Court in McGautha 1,CaI?i~rnin.~~ The appellants argued "leav[mg] tho jury eompletelyat largc to impose 01 withhold the death penalty as itsees fit is fundamentally lawless and therefore [deprives] apenon of his life without dne process of law."2z They werenot claimng capital punishment was unconstitutional per se,hut that they had heen &pr~vcd of due pmcess because the~rsentencing juries had been given unbridled discretion andwerc thus "fundamentally lawless."The Court disagreed, noting "in recent years, challenges tostandardless jury sentencing haw been presented to manystate and Federal appellate cou&. No court has Idd the challengcgood . "23 The Court believed jurics could fairly makcthe sensitive judgnlents involved in capital seniencmg:One of the rnost impa~tantfi~rctiorrs any juty call pe$orntinaafing [R capitalsenterrring dececrsion] is to 1na1nfain n linkbetween confemporar)~ cornmrr~~ity i.alaes and the penalsysienr-a link without whzh the determinofion ofpunishme~rtcould /tnni/y ~ejlect "the edmg standards of "decency thafmark thep~og~wss of a matw ingsacicfy. 24The Court did not find jury discretion so subject to abuseas to deny a defendant due pmcess. Iustead, the Courl maintained"States are entitled to assume that jurors confrontedwith this tmly awesome responsibility of decreeing deslh fora fcllow human will act with due regard for the consequencesof their dec1sion!"5 The Court did not consider whether otherwnstitutional guarantees may have been violaled.Shohortly after M a c , certiorari was granted to threedefendants to determine whether ihe death penalty wasinvoked so arhitradly as to he cruel and unusual under theEighth Amendment. These cases were grouped together underthe name fur war^ IL Gempig26 Tho Fu,.mnnCourt held cap-ital punishme~u was bcing applied so arbitrarily and freakishlyapplied as to be unconstitotional. &mm struck downevery capital punishment scheme in America. States scrambledto draft revised death penalty schemes ta comply with therequirements the &mza Court had loosely identified.The was made d~fficult because there was no majorityholding in-. All nine Justices wrote separate opinionsto the 5-4 decision. Justices Brennan and Manhall concludcdthe deathpenalty was cmel andunusualperse. Jnstlces White,Stewart and Douglas agreed that then-current capital punishmentschemes were unconstitutiond, hut were unwilling tocoinmit as to whether other schemes could comply with con-stitulim~al reqnircments. Justices Blackmun, Powell, Burgerand Rehnquist, believing the death sentences at issue werewnstitutio~~al. voted to aKin.Although five Justicm agreed death sentences were handedout arbitrarily, they drd not blame juries. Justice Whitebelieved the scarcity of death sentences was not the result ofjuries acting irrationally, hnt that jury reluctance to imposedeath was a consequence of waning support for the deathpeaalty. While he agreed "there is no meaningful bas~s fordistinguishing the few cases in which [capital punishmeut] is~mposed from the many cases in which it is not,"z7 heemphasized:[Tlhe pohcy of vestin~g sentemhg authorigir~, p,ln~nrily mjuries - a ~Iecaian fur@y mofi'(lfed by the desire to mitigatethe harshness of the law and m 61 ing courmtmi/y judgment tobear or? the sevtence as mN os gwilt or innaceme - has soeJecfive& acItie,wd its ams that cap?fal p~inishma~l niihinthe eonjr~es of the stnhtfes now before us hasfor allpracticalpruposes I un its corrrse 28Justice Brennan remarked "[w]hcn the punishn~ent of deathis milictcd m a hivial nuniber of cases ... ~t smacks of litlleInore than a lottery~y$tem."~9 Brennan, l~ke Jnstlce Marshall,believed the death penalty could never be constituticd.Acco~dingly, neither Brennannor Marshall discussed tho Issueof randomness or arbitrariness of sentencing at length.Instice Stewact con~pared receiving a death sentence withbeing struck by lightning, and descfibed the appellants asIuIylAugu~t 2000 - Voice 39

"among a Eapriciously selected handful upon whom the deafhpenalty has been imposed,'"Q hut did not claim juries wereresponsible for this capriciousness. He indicated the problemswere systemio, recognizii that police, prosecutorsand judgesshared responsibility for capital sentencing disparities. OnlyJnstice Douglas placed any blame on the jury, criticizing the"discretionary statutes" which were "pregnant with diswimination."-"Georgia was among the first states to pass a revised deathpenalty scheme32. Georgia addressed the problems identifiedin & in several ways. First, ~cor~ianarmwed the classof 'dcath-eliriblc' - defendants. . rc~uirine - -- iuries to find onc ormore statutory "aggravating circumstances" before deathcould be imposed. Next, capital defendants were guaranteedindividualized sentencing by inshucting juries to consider any"mitigating circumstaoces" presented. Finally, the GeorgiaSupreme Court was to perform "proportionality reviews" ofcapital sentences to ensure they were not the result of prejndiceor arbiwariness, and were proportionate tothe penaltics insimilar ~zws.33This new law, along with those of Texas, North Carolina,Louisiana and Florida, was wnsidered by the United SZatesSupreme Court in a series of decisions which form the foundationof American capital punishment jurisprudence. Thefirst such me, Gree~ v. Garvia, was the appeal of TroyGregg, who had been sentenced to die for armed robbery andmurder.The Court considered a question left unanswered in Furman:whether capital punishment was cruel and unusual per se.Denying that "standards of decency had evolved to the pointwhere capital punishment no longer could ba tolerated," the*Court believed "a large proportion ofAmerican societycontinues to regard [capital punishment] as an appropriate andnecessary criminal sanction!" The Court pointed to reviseddeath penalty laws in over thirty-five states followingFurman, and found capital punishment served the purposes ofretribution and detenence.35 Having decided capital punish*ment was not unconstitutional per se, the Court went on toconsider the new Georgla statutes.The Court held the @@gia death penalty complkd witha by adequately guiding the discretion of the jury byrequiring 1) a statutory aggravating circumslance before thedefendant could be considered "death eligible," and 2) considerationof any relevant mitigating circumstances in senteneing.36Because adequately defined guidelines provided a rationalframewark within which to make the sentencing decision,fhe Court found no violation of Furman m the Georgia capitalpunishment law. "Guided discretion" became the benchmarkfor capital punishment law:pV]here dismlion is aflonieda sentencing body an a matterso grave as lhe determination of whether a human lifeshould 68 taken or spored. lhal discrelion must be suitabbdirectedandlimitedso as lo minimize the risk ofwhally orbirravor caprciom action.37PmfiI! v Florida38 wnsidered the revised Florida statutes.Florida juries only make an advisory opinion as towhether a defendant should be sentenced to live or die. Thetrial judge may override the jury's recommendation Althoughin the Court noted that 'Tury sentencing has been considereddesirable in capital cases in order to maintain a link betweencontemporary community values and the Penal system," inthe Court stated:[IYe have] never suggesledthat jury senfencmg is co~rsliiutionallyrequired. And it would appear ihar judicial senteneingshould lead, fanything, to even grealer consistency inprmishment, since a bid judge is more experienced in sentencingthana jury. andlherefore is belfer able to impose sentencessimilar to lhose imposed in analogous cases 4OThese assnmptions are rebutted by later studies which showgreater racial disparity in capital sentenning decisions madeby judges than those made by jurorsf'As in Georgia, Florida required the sentencing authority toconsider aggravating and mitigating faet0rs.~2 Because sentencingdiscretion was guided by a statutory framework, theFlorida law passed muster under &&mu. The Court held thejury need decide the sentence, so long as the sentencingauthority's discretion is exercised along rational, statutorilydefined guidelines.Jurek Y. Texas43 examined the Texas scheme. In Texas,capital murder wsr a distinct offense; the jury bad to find oneof a limited number of statutory aggravating circumstances toelevate a homicide to capital murder. If the aggravating circumstanceswere not found the greatest offense available wasmurder, a non-capital offense. The same sorts of aggravatingfactors wnsidered in sentencing in Georgia and Florida werewnsidered in the guiwinnocence stsge in Texas.At punishment, Texas jurors were asked a set of factual"special issues" reflecting on the culpability of the accused.The speclal issues, at the time of Jurek's trial, required the juryto answer:(1) whether the conduct of the defendant that caused the deathof the deceased was committed deliberatelv and with the reasonableexpectation that the death of the deceased or anotherwould result;(2) whether there is a probability that the defendant wouldcommit criminal acts of violence that would constitute a continuingthreat to sooiety; and(3) ifraised by the evidence, whether the conduct oftbe defendantin killing the deceased was unreasonable in respmse tothe provocation, if any, by the deceased.If the jury unanimously voted 'yes' to the special issues,the judge was required to sentence the defendant to death. Ifthey didnot, the judge was requited to sentence the defendantto life in prison.TCX~ law represents an exception to the "guided discretlon"principle. Because the "special issues" require a jury toVoice 40 - Jrrly/August 2000 -jury Nulificatio~r in Capital Cases

find facts, the jury is glven little discretion. However, theCourt held Texas complied with Emmze by requiring theassessment of rmtigating evidence in the sentencing Stage(tluough the future dangerousness special issue), while uarrowingthe class of death-eligible defendants at guiltlinno-~ence.~~ The Court counted on the Texas Court of CriminalAppeals to give the special issues an adequately bmad interpretationto allow the jury to consider any mitigatingevidenceraised, including the defendant's pprir criminalrecord, age, and mental or emotional stateP5In two mnaining con~panion cases to Gr@g, the Cmutstruck down capital punishment schemes because instead of"narrowing" and "channeling" thc jury's discretion, they eliminatedit entirely. h1 Woodson v. Nolth Cumlina?"he Courtstrock down a statute under which any defendant eouvicted offirst degree murder was automafically sentenced to die. Thisscheme failed to give the defendant "particularized considerationof relevant aspects of [his] character and recardThc Court held "the hndanental respect far humanity underlyiugthe Eighth Amendmcnt requires consideration of thecharacter and rccord of the ind~vidual offender and tho circumstancesof the panicnlar offense .!'48 The Court rccognizedthat mandatory d&th penalties functionas an open invitahonfor juries to nullify, if they believe dcath is not appmpriatein the case before them 49In Rob& v. Louisiana 50 the Court fonnd "the constitutionalvice of a mandatory death scntence statute - lack offocus on the circumstances of the particular offense and thecharacte~ and propensities of the offet~der"~' was present. Ifthe jury convicted of murder, death was the only sentence. Tomediate this harsh n~le, Louisiana requircd jurios to be~nstnrcted on lesser ineluded offeoses, n~lrelhev or nof suchznsrruclions netejitsfiJkd bj' evidence.The Court detern~ined Louisiana was inv~ting jurics to nnliifyand "choose a Lesser offense whenever they feel the deathpenalty is imppropriate!'" The only way to spare the &fendani'slife was through jury nullitication, convicting on a lesseroffense whatever the facts. Yet jurors werc sworn not lo dothis durmg i~oirdite. Louisiana was attempting to have it bothways.The Louisiana jury received no guidance as to when otherconsiderations came above their oath. Lomsiana juries wereleft with thesame degree of dwretion found objectionable inm, and were expeotcd to exercise it through ~mlhficalion.This required tho jury's exercise of its powers to beentirely ungnided, and therefore this statute faded to complywith the requirements of w.h a n d its companion cailses wen: based on the assumptionthat jury decision-mmkmg was responsible for arbitraunessand randomness in capilal sentencing, and that controllingjury discdon would resolve the constitutional infumitiesrecognized in -. Thts assumption was never madeby a majority of the F- Court, and a not supported hyresearch. A good part of what troubled the CourI in &mmwas the cxisteuce of racial disparities in capifal sentencing.A pair of stud~es of Georgia capital sentencing, conductedby Prof. David C. Baldus and others, dispute the pemptianthat junes are responsible for racial disparities in capital senteneing.nThese studies were at Issue in the 1987 SupremeCourt case McC[eskevS4. McCleskey, a black man,was sentenced to die for killing a white Georgia police offtcerduring an armedrohbery? McCleskey argued that the Baldusstudies proved juries were disproportionaiely likely tosentence him to die, thus denying him equal pmkection of thelaw. 56The Baldus studies show the most important factw inwhether a capital defendant lives or dies is the victim's race.Slaym of whitesare 4.3 times as likely to receive a death sentenceas slayers of blacks.57 Blacks who kill whites are evenmore likely to be senteaced to die than whites wlro killwhitess8. McCleskey's argument dl& this disparity violatesthe Constitution was never addressed, because he could notshow the Court that racial considerations contributed to hissentenceJ9While juries have somc culpqbility in the racially skewedmanner in which the death penalty is applied, this d~sparity isprimarily due to prosccutorial discretion Whereas juries are40% more likely to sentence the k~ller of a white to die thanthe killer of a black, prosecutors are 200% more likely to seekthe death sentenceagainstthe killer of a white.@Defendants have little leeway to amckpmsecutodal chargifigdecisions. Prosecutom may charge as they see fit absentpurposeful discriminatwn.fil Normally, this protects the independenceof prosecntors. However, the standards appropriatein other cases are not always appropriate in capital cases. Todate the Supreme Coml has not been willing to monitor thediscretionary decislon most responsible for racial disparit~esin capital cases: the pmecutol's charging decision. Nor havethey addressed discrimi~~atian from the bencl~.@z While theCourt has 'enamwed and channeled" the discretion of judes,state ofiiciRis may shll act as arbitrarily as ever. The d~lemrnaof persistent racial bias in the dcath penalty will remainiatraetahl~ so long as state officials retain unlim~ted discretionto choose which defendan% face a risk of death, and ill somestates, whlch ones will actually die.The Dexth-Qualified JuryRacial bias in cap~tal sentencing may be exacerbated byjury selection procedures utikpe to capital cases. In elminatmgjurors with qualms about the dealh penalty, minorities andwomen are removed at a much higher rate than are whitemales.@ The resultant jiny is not representative of the communlty,and may be seriously biased indeciding both gmlt andpunishn~ent.~~Death-qualification began as a means of controlling juryindcpendence.65 In FYlthetsuoo~~ a Illinois,66 thc Court held astate could not disqualify pntential jurors merely because they"might hesitate to return a verdict inilictmg [dcath]!'" Whilethe Court saw no problem with d~gqnalifymg jurors whowould refuse to impose death, or whose verdicts would he

affected by the punishment involved, they heldremoving anyonewith reservations about capital punishmmt denied thedefendant his right to bave his pmishment decided by the"conscience of the community." "Just as ve~eni~.erner~ canltot b8 ealudedfol came on thegrurrnd that they hold such vrmvs. so too the), cannot beed~rdedfor. cause simpb because the), indicate that therearesome Mnds ofcasa in illitch they norrid refuse to zenrtnmendcapitalpursrshnten ... The rnost that can be demandedof a ~wziren~an in this legad is llrnf he be willing to considerail of tl~e~~e~raltiespruvided by state iun: a~nd that he rrotbe bre~~acably corr~milted, befo,~ the trial has begun, to voteagainst tlte pemitJ' of death regardless of the facts and circurnstnncesthat might emetze iti the corr~se of fheprocedings.69IYifhe~suoon was decided fonr years before In1980, due to the mduced discrelion given juries under &egg,prosecutors were given wider berth to eliminate jurors withconscientious scruples about cap~tal punishment. In aTerns.7° the Court held 'lurors whose only fault was to taketheir responsibilities with special seriousness or to acknowledgehoncstly that they mght or might not be affected" by tryinga capital case were not "so irrevocably opposed to capitalpunishment as to frustrate tbe State's legitimate efforts toadminister its constitutionally valid death-penalty scheme.""A juror was not disqualified "based on his views about capitalpunishment unless those views would prevent or substantiallylmpalr the performance of hi dutics as a juror in accordancewith his instructions and his oath."J2 The language conceming"substantial impairment" was an expansion ofIYither~uoon, to be developed further in Wainwt izht FYitt73The Witt Court acknowledged that the task of capitaliutics changed foIlowing and its progeny. The Courtfried to harmonize A& and JYlthersuoon, noting the Texaslaws at issue in Arlanrs reqnired jurors not to express theconscienceof the community, hut to answer fact questmns.Thecommunity conscience bad already been expressed, theCourt held, by the Texas legislature."Although the Court held mandatory death penalties uneonstihltiond,the @,&f Court was willing to exclude ally jurorwho may refuse to give the fatal answer, if the factual answersto the setutory questions diitsted an unjustified capital sentence.The Court d~d not address how this differed hln themaudatory death penaltics disapproved of in &Q&QLI and&&c&. Although inTexas a sinaller categoly of cases qualifiedas capital, if the case qualified the defendant was sentencedto die - unless the jury nullified. Under m, anyonewho would null~fy was disqualified.The J&/ Court described the holding in IYithersuoon -which had been the leadmg capital jury selection case for seventeenyears - as "limited." The &"substa~ltialimpalrment"test becat~~c the new star~dard for juror excl~rsion.75 Indeciding fact quest~ons, a juror must not be "substantiallyimpaired" by the specter of death. Whlle a juror may waghIDWI and Capital Murder 2000Oh No!I missed them!No, you didn't ...Complete sets of audio tapedpresentations are now availablefor only $100.00 a set or $175 forboth sets.Call Randy at 512-478-2514 by August 14 to get this special price.Voice 42 - JulyIAugust 2000 - jury Nulificatron in Capital Cases

capitalcases with exceptional caution and gravity, he must notbe materially influenced by the punishment involved.Death-qualified juries behave markedly differently than otherjuries. Although the W~therswon Court stated '#It is, of course,settled that a Statc may not cntrust the determination of wbethera man IS innocent or guilty to a tribunal 'organized to convict1,"76sh~dieshow deatb-qualified juries are less than impartial, andmay be "organized to convict!' Professors Michael Finch andMark Ferraro, after surveying the available research on deathqualified juries, concluded:In the seventeen yeam following Jt?therspoo~~. deathqual@cniion has heen OJle oflhe most sfudied subjecs m Ylea! ea of sociological jurisprudence. The product is more than adozen reported i~rvestigalions which, in the ove~u~heltnirig COIIsensusof commentnto~s, have confirmed three empirronlhypotheses: (I) jurors ercluded because oftheir mahilify toimpose $he death pe~taliy UIE mom utiitUdiuzi~disposed to favorthe accused tl~an ave ~IOJI-acluded jtfms; (2) ercluded jm'flrsale nzox like4 lo be black or female tbm nmfsrcluded juro~s;and (3) excluded juror+ me mor.e likely to actually acquit theaccused than uw1-exclruledjuro1s~7In spite of evidence that death-qualified jmes are biased, inLockhart x McCree thc Court announced that even if death-qualifiedjuries are more wnvict~on-prone and less representatwe,the Cot~stitution docs not forbid death-qualification. TheCourt held death-quahfied juries comply with the "fair oross-section"requirements of 2 h l , I o , . ~ 7 ~ becauseIfithe~spoo,~-excludables do not form a "distinctive group"under Taylor. The Cowt only recognized gender, ethnic or racialgroups as constitutionally protected.ables,' or for that matter any group defnied solely in terns ofshared attitudes that rcnder members of the group unable to serveTCDLA MEMORIALIZESas jumrs in a particular case, may be excluded from jury servicewithout contravening any of the basic objectives of thefair-cross-section requirement!'8o The Court was not concernedthat illis contradicts their previous cases, such asBRNardv.:[I]/ is not enough fo say that women when sitting as jmwneither act nor tend to acf as a class. Men likewise do not actas a class ... Yetaflavor; a distinct quali#y is lost iferthersex is ercluded. The erclusion of one may make the juqr lessrepresentative of the commurritl, than wo~dd be @lie ifan economicor racialgroup was excluded.A "distinct quality" is also lost when alI those with conscientiousscn~ples about capital punishment are excluded fromjury duty. A jury stricken of those who object to the deathpenalty is less representative than if those excluded were seated.Couscieniious objectors can be expected to act, as a Class,differently from those empaneled. That ihey do not form adistinct class for other purposes (e.g., voting rights or employ-ment d~scrimination) is irrelevant as to whether they form adistinct class in this context Whether their exclusion wouldprevent a fair frial in a non-capxfal case is inmaterial, yet thisis the standard the Court is using. The "distinct quality" lostis the possibility for mercy. Depriving the defendant of thatpossibility depr~ves him of a jury fairly representative of thecommunity on the issue where the co~~science of that communityis most urgc~~tly involved - an issue, literally, of 11fc anddeath.The Court rejected claxms that death-qualification biases thejury. Instead of addressing the argumenfs concerning exclu-"'~Jhersuoo~r-excl~~d- sion, the Court looked to the variety of people who sit on cap-ital juries, commenting "[ilf it were true that the Const~tutionrequired a certain mix of individual viewpoints on the jury,Charles BaldwhQuin BraekettJack H. BryantPhil BurlesonC. Anthony Friloux, JrEmmett ColvinKnox JonesGeorge F. LuquetteDavid A. NixDon R. Wilson, Jr.George Roland#+P July/August 2000 - Voice 43

elieve a death sentence is inappropriate, they should answer"no" to one or more of the special issues. They were to nullifythe law when thcir moral judgment, in light of any mitigatingevidence, led them to believe the defendant shouldbe spared. The Court of Criminal Appeals approved a juryinstruction that:$~~ottjind there am any mrtigaling circtrmshmce$, jS01r mustdecide how n~rrch neiglrt tlrey deserve and give tl~en~ effectwhen you answer fke Special Jssr~es $j$ou n'efeinrine, in considerationof this evidence, tlrar a 1$e sentence, rather tlrm adeath senterrce, is an ayptwpriate ~ ~ o nto s the e pm.sonalnmnl culpnbi/itJ~ of the dqendant. yori are inst~rrcfed toansnw nt ieasf one of fhe Specinl Issues rmder wnsideration"a. " 93No provision was made as to whlch special Issue shanld henullified. The effect of a "no" to anv of the rssues was a sentcnceof life in pnson. The Court of Criminal Appeals repeatedlyapproved "nullification tnstructions"p4 in order to briugTexas death penalty law into conipliance withPm. gSThe Texas court developed several requiretnents for nu1l1-fication mstmctions in capital cases. The instructions mnust 1)"clearly communicate ... that ev~dence that has no rationalbemng whatsoever on (the) special issues, or only has a tendencyto milltale in favor of ailinnatwe answers, maynonetbeless serve as thc basis for answering one or mole ofthe issues 'no: in spite of the juro~s' oaths to answer (the) specialissues honestly, and in accordance with what they believethc ~elevant ev~dence shows"; 2) "tell the jurors that they may,should they find it appropriate in thar reasoned moral judgment,use the defendant's mitigating cv~dence as a reason toanswel the first special issue 'no,' eve11 if they do not find thatit prevented him from acting deliberately"; and 3) "tell thcjurors that they canuse mihgating evidence not only toanswerthe future dangerousness question yes,1 but also, paradoxically,to answer 11 'no!"%Iu US. IL Douderht Justice Leventhill wrote that juriesneed not be instmeted about jury nullification, because theywere already aware of their powers and instmctions wouldencourage nullification in inappropriate casesP7 If this wereso, there would be little reason to glve nullifieation instmolions in capital cases. No Texas court has been bold enoughto assat that such inst~uct~ons are not necessary to complywith-, because Texas jnrors are "already aware" of theirpowors. Texas courts have ~nstead mandated nullificationinstructions when circrunstances dictated them.By turning to jury nullification to rescue their death penally,the Texas Court of Criminal Appeals i~nplicitly recognizedtheright of juries to render independent verdicts ~n othercases. Texas coum have denied the right of juries to rendelindependent verdicts since 1847.98 However, the constitutionalityof the Texas death penalty was left to rest on theauthor ify of Texas jurors to nullify if in thcir "reasoned moraljudgment" the death penalty was inappropriate in the casebefore themIn recent years, no Texas court has given a nullificationinstruction in a lion-capital casc. They have instead hewn tothe forniula that "[t]he jury is required to take the law from thecourt and be bound tl1ereby."~9 One Court ofAppeals uphelda trial court's ~efusal to give a nullification instruction ina non-cap~tal case, without addressing penls.Iw Still, Texas'use of jury nullification to salvage an otherwise unconstitutionaldeath penalty shows that Texas juries may, in the mostserious of cases, responsibly consider the crime, the criminaland the law, and decide whether applying the law wrll result injustice being done. If juries can exercise this ovelsight~espousibly in capital cases, there is little justification for nottrusting them with it in less sedous prosecutionsIt is in capiLd cases where mistakes are least forgivable,where the consensus of the co~nmunity is most sorcly neededand most severely tested. Yet it is in capital cascs that our systemis least wrlllng to allow a fair trial before a randomlyselected cross-section of the community empowered to 'pventoppressiotl by the government."'" The meaning andpurpose of trial by jury is distorted in every conceivable wayby modem capital punisl~nient law.Courts have put so much effort into micro-managing capltaljury decision-making that many constih~tionnl questionsabout the death penalty are unanswerable. Althongh courtshave recognized the d~scretionary rolo of juries by requiringindividuaked senteacing and prohibiting mandatory deathpenaltystatutes, they have also neutralized community input,increased the power of prosecnto?~ to death-qualify jurors,andof judges to "guide and chaunel" jury decision-making.Courts have interfered with the role ofthe jury purporledlybecause juries have not uniforn~ly punished con~parahleoffenders, but have not scnhinized the rolcs of judges or pmsecutorsin capital cases. Those studies which have done sohave determined the lion's share of the disparities in capitalcases are due to those other actors in thc system, with the singlelargest proportion being due to disparate charging decisiousby prosecutors. Wh~le the discretion of jurors is moreand more t~ghtly guided, narrowed, chamleled and d~rected,the discretion of prosecutors is ahnost entirely unfettered.Politiciar~s and pollsters clainl Americans ovenvhelmmglysupport capital punishment. If so, there should be little needto death-qualify ju~ies to prevent nullification in capital cases.A normal vou di~e should be stlficient to identlfj- and eliminatethe fiw death-penalty opponents in the jury pool. It istelling that no state has shown enough confideuce in publicsupport forthe death-penalty to do away with death-qual~ficationPerhaps that should tell us something about the depth ofpnbl~c support far capital punishment in the first place. If thestate's power to kill people is a legitimate part of the law of theland, it should not require a complicated scries of arcane andhyper-technical jn~y-control procedures in order to funehon.E-JulyIAugust 2000 - Voice 45

Reference:2 Iard Campbell. Thc Lmes ofthc Chief JUiw of Ensland, Vd111,477478 (1873).3.. .Leon Raduno~vicz, A Hisorv of Endish Cnmlnal Law and itsAdmmmk@honTronl1750,727-739 (1948)4 - Id at 729.5. Id6 !& at7307. Id at 93.8. Colquhoun, AT& on the Polk of lb MetroQPliir23-24 (4thEd 1797). cited in Id. at%,9. Redzioowin, supre oate 3,96. See also ThomasAn&ew Gmnc,,yadirt Accordinn to Conscience: Puswctiws on the Emliah Crinlinal Tiid1~1200-18W 59-&l(1985).10. 3 &car. 514 (1815); see also Lamnrc Fdedman, A Iliston. ofAmerican Law. 285 (1985).11. Uniled Sbls v. Camell, 25 F.Cas. 650, 655-656 LC.C.D. R.1.1820); see also Unild Stale v. Wilson elal., 28 KCas. 693 (18301; Logan u.UnifedStstes. 144 US. 263.298 (1892).12. Friedman, sup mole 10.281, quoting Edwit R Kcrdy, Hinhxy oftbePennsylvania Stslule Creating Dewas ofMurder, 97U. PA. L. REV. 759(1949).13. Friedman. mpm note 10,282-283.14. UZim$tmv. Unitedstales, 172 US. 456,460 (1899).15. See biffiamlk v. Cdifmia, 402 US I83.2W (1971).16. 408 U.S. 238 (1972).17. David C. Baldus, Gemgo \Voodw~nh. Char111 A. Pulsski, Jr,Eoual Jwlict and the D@lh Pe~~allv: A Led and Ewirical Analrsjs. 321(1990).18. Allhough this queslionwas not mwered by the Suprent= Court inLodrhan v. Aiecm, 476 US. 162 (1986), the Corn held the Slate's interest inthe dea.Ihpxdty ovcnodc the &foldads bteyest in an impartial jury.19. AIichael Finch and hlwk Fcmo, ?h Enlpiricnl Cl~aNet~ 10Dulh Pmli/id Jnries: On Frvllm Erm,in.Iion, 65 NEB. L.RBV. 21,4440(1986); see also Rdrerf FiIrgcrald and Phwbo C. Ellswath, Dm Pmem aCdie Con,,& DenlIt Qrurl@n?flo,~ nnd Jug- Alrimde, 8 LAW AND HUM.BENAV. 31, 46-47 (1984h );see slw NancyJ. King, Pmrmn~~icliios Rdew ofJrq Direrimimlion: Menmrin$ fhe Emls of Jumr Race on JmsDeli&olianr, 92 MICH. L. RBV. 63 (1993)..20. 492 U.S. 302 (1989).21. supranole 15.22. - Id. at 196.Zl Id. at 203.24. Withespwn v. Illinois, 391 U.S. 510,519 (1968XqwtingTmp rDullw, 3% U.S. 86, 101 (1958)).25. McGaolha, supmnotc 15, 207-208.26. Funnan, supranole 16.27. - Id. at313.28. - Id.29. mat.293.30. Id st 3W-310.31. ld at 256-25732 Amenrao Cwrl L~bemcs Union, Race and the Death Penal& 7(1987)33. Gmm v Georgra. 428 US. 153,196-198 (1976).34 Id at 179.35. Idat179-180,18336. - Id at 206-207.43. 428 U.S. 262 (1976).44, Ida1 273-274.45. - Id. at 272-273.46. 428 U.S.280 (1976).47. &at 303.48. Id at 30449. - Id. al290-293,2983W.302-303.50. 428 U.S. 325 (1976).51. Id. at 333.52. kl. at 335.53. Baldus, Ubodwonh &Pulwlri, supranote 17,327-54. 481 U.S. 279 (1987).55. Id. at 283.56. at 2%-287.57. Id; at 287: xeab Bat&, ,Wmd~vMh& PulasLi, supm rmfe I I ,316.58. Baldus, Wwdwonh & Pdnski, supnolc 17,328.59. ArcCIesk$ qm nore 54,292-293.60. Baldus, WmdKorth & Pulaslri, E~W no& 17, 327: see dsoh4ichaeI L. RadaletandGlton L. Pierce, Rore und Plosect~Lorir~I DQmIiiii inHon~icideCmm. 19 UWAND SOCVREV. 587.613 (1985)."M. See Samuel R. Gmss, Delmnl,>i,,g {he Neurrali@ of Den&-~~~~~~d Arfa; Jud/cidApprnid o/EltlpinrnlDnm, 8 LAW AND HUMBEHAV. 7 (1%): Claudia L. Cowan. William C. Thompson and Phoebe C.Ells~'o~th, ntr Eficls of Death-Qu~l~~lmlim an Jrtmrs' PrPnirporiIim loComic1 md on the Qwlinlily a/Deli&mlio~~, 8 LAW AND HUM. BBHAV. 53(198%65. ~orne~i, strpronotc 11.66. Supm note 24.67. I& a1 513.68. Idat 513-114.519.69. atS22-523, fn21. ),70. 448U.S. 38 (1980). j71. Id. at 50-51.72. Za45. 173. 469U.S.412 (1985). 'j,74. Id. at 421-422.75. ~a1418.421-42276. MWIZ~IJW~I, srlpra note 24,521.77. Fioch&Perram,s~rpmnote 19,24-25; scealroKeeten u. Garcisan,578 FSqp 1164,1167 (W.D.W.C. 1983). rrv'd.742 F.2d 129 (4th Cir. 1984).78. Srlprnnotc 18. 173-184.79. 419 US. 522 (1975).80. Stlpmnote 18, 174.177.81. 329 U.S. 187, 193-194 (1946).82. Supmnote 18, 178.83. Spe Joe M. Van Dyke, Jurv Seleaiw Procedures : Our UncertainComruimm to Rc~resenhtiyePanclL 152-153 (1477).84. 499U.S. 4W (1991). Somepm~ulorsslill uneraccnsabnrir forsMking juors, awn in lhc faccofBalsotz r K412ltr@, 476 U.6.79 (1996). L-Shlart DiWen, Lhda Layd and Ma* Falollah, Avoid Poor Elm;(- Jlrmrr,illc$l~hon %id. P1ULADELPHIAINQUIRER.Apdl I. 1997 at A1 (discussingPhiladelphi. Arsinaa Distdct Attomoy Jad; McMahon's training video forBam~~x, 237-239 (1934)86 Chaya Wenberg-Bmdt, Jury Nlrlifimlron & JW ContrdlPmcedtyps, 65 NYU L REV. 825,870 (1990187 Sapra note 20.88 Uat323-324 (emphasi~ inarigmal)89 Id at324Voice 46 - JulylAugust 2000 -Jury Nulification in Cag~tal Cases

91. The Texas legisleturc revised the special issues, effectiveSeptember 1, 1991, giving jrrios an oppMtuniLy to cxm~ise their mod judgmenton sentencing withothothot hsvingtonullify Tbcnew spe~ial imes read:(I) whether then: is apmbabilily htthe dofendant would mdtcriminal actsofs,blencc that wouldconntitute n continuing threat Lo society; and(2) whether the defendantachlally rau3d the death ofthcdcecased m did notactually rause the death of the dcccased but iotended to kill the decenscd manother or anticipzied thata human lire would be taken; and(3) whether, taldng inm ronddemtian all of the cvidcnce, including the cimurnstmwof the offense, the defendants charaetcr and beckgmund, and the PCson81moral culpability of the accused, them is a sulliciint miligating ciccvrnnmccor cireurnnances to a;-t that asentence of life imprisonment nthcrthan a death sentencebe irnwd.Texas Code of(lrimina1 Pmcdun, Chapter 37.M 37.071.92. Trevino e Stalc.SI5 S.W. 2d 591, fn 11 Cl'ex.CrimApp. 1991).(1996). listmgcnses.96. Ria v. State. 846 S.W. 2d 310,316-317 vex CdCrimp 1992)97 Unifed States v Dougheq, 473 F.2d 1113,1135 (D.C Clr. 1973)98 Ncls v. State, 2 Tex 280 (1847), Sqwes v. State, 45 S W. 147(Tex.Crirn.App. 1898).99. Aldridge v. State, 342 S.W.2d 104 (Tex.Crim.App. 1960).INl. Mouton v. Stetc. 923 S.W.Zd219 ~~XAPQ;HOLLS. (14thDist.fClay S. ConradShareholder. Lamson & Looney, RC., Hous1on:firmer StagAttorney, TCDLA. Thrs article has been e'itractedfmn~ MI:CortradS book, 'IJoy NulI~catim: Evolution of a Docft'irre, "Cnmlrna Acadernrc Prms (1998)* CodeofCri~ntnalProcedurewithcaseannotations* Penal Code withcaseannotations* Original Code of Criminal Procedure Articles, PenalCade and Contmlled Substanw Act sections that maycontrol pending cases or offenses conunitted beforethe 1999 legislativechangesx Rulesof CrlnlinalEvldencewith case annotations* NewTexas RulesofAppelIate Procedure* Selections from other codes, statutes, and rules thatcriminal attorneys need, including: The CantrolledSubstances Act, Administrative License Revocation,and Concealed Handgun License* Qnick reference tabs and headings and acomprehensive index* Helpful charts and tables,includingnew timetables forcriminalappeals30 Dav Monev Back Guarantee

TCDLA WELCOMES NEW MEMBERSPaulAndanon SmAntonroJonathan M. Bailey Denlon. Sponsored by Henry C PaineJ, Rex Barnrtt Fm WmtbKtoneth H. Berry FamrersBmnchApril Bodomky Hrllsboro Sponsored by Judh K ManemKenneth Botary Co'pw Christi . Sponsored by Consfsnec I~edickeSean Buckley Hoturon Sponsored by Bdl HabemThomas J. Burbmk Beaunront . Sponsored byfanes MakmSteve Burgess Denton . Sponsored by Randy BrooksYolands Gutierrez Burns Corpus Chris#Bobby H. Csldwrll B~llnlrePelipc 0. Celzada Fm Warfh . Sponsored by Rila UtfRaul S. Cmh Sari A~mnio - Sponsored by Allen C. IsbellRichard Canlu SonAnro,liom Sponsored by AllenC. IsbellCarol Ann Carson DreafwLes D. Cssridy Corpur Clriisli. Sponsored by Thomap F GreenwellLinds S. Cbrlrtophcr HawtonAnlonio Corlez ElPoso . Sponsored by Thorns HradyPatricia G. Deahn Portld Sponsored by Cindy BucknerJulie Dourrt Dollm - Sponsored by Lira ExwnBrtndn DuShsar Ahin - Sponsored by EliraVasqoezW. Deal Pair Sat, Anronio . Sponsored by Gerald A RogenPamela D. FosterHomr Sponsored by RobeaA JonesJack W. Frieze Port ArarmuDebra Gsrris Conroe Sponsored by Gllbert G. GarciaJoseph G. G am DalimGina I, Giblia Howlm. Sponsored by Betty BlackmllKenneth M. Gibson AwIhz .Sponsored by Belly BlaokdlJuan E. Gonzslez Edinburg Sponsored byDavid R GorenaMike Gordon Co'pw Chrrrli Sponsored by Constance LuedickeVictor Gunjardo Copw Clwisfi Sponsored by Cecd StareherChris Harrison AusmJohn R. Healh, Jr. Geo@erown - Sponoored by John R HeathMargaret T. Hiodman Galvemm . Spansored by StephenTaylorSuzanne Hudson Arllngfo,~E.G. HUN Hourron - Sponsored by Dave O'NeilJames K. .loho~on D&sJolanda Jones HowtonRsymon Jordan HorurmJames M. Kennedy Hourton -Sponsored by David BiresKenneth LLvi How(onPeter M. Lopez Siveenualer . Sponsored by John S. YoungJamw Lucas ElPmJesus fifaelas Hourrm .Sponsored by Lee WilsonAndrw Medrano Awlin 'Spayed by Tmvis WilliamsonChsrlrs G. Morton, Jr Buii6$. Sponsored by Jamess W. VdberdingMarsha ~orksod Bwvntont i., Sponsored by Cynthia Hujar OmMiehacl P. O'Brien Corpur Chrhli. Sponsored by Don CadwightAnthony C. Odiorne Wicliila Falls.Jose Edurrda Pcaa LamdoEvan E. PicrccJoner SanAn& - Sljonsored by Weldan HolcornbBrenda Rhea RoundRockMarc Rosalw El Pmo - Sponsored by Joe E;dd BoazLuis V. Saenz BmwnsvilleLee Sslas Plano . Sponsored by Tony VitzHector P. Smchtz HourtoaScott Scgall ElParo. Sponsored by Michael R. GibonEdusrdo Serna C~ytol CiiyRichard A. Strieber San Anlonio Sponsored by Ray TaylorWilliam E. Trantbsrn DentoriSsrn'lbrner AwtlnAlex R Vellman AwrinEd Walah RormdRockEpi Ysaui Corpus ChristiLioda B. Zcman BpNonVoice 48 - july/August 2000 - New Members Lrst

Making thp Case for Life IVSeptember 15-17,2000Westin dalleria & Oaks, Houston, TexasMaking the Case for Life 1V is an annual NACDL CLE program that focuses on theinvestigation, dwelop~nent, and presentation of penally phase mitigat~on evidence incaprtal cases, panreularly in such areas as mental illness, physical and psychologicalhawua, substance abuse, and teaming disabilities and mental retardation Faculty willalso address interviewing sk~lls, docuuicnt $athering, plea negotiations, viclim impactconsiderations, jury selection, and other issues A s~gnificant portion of thc progran~will be iwo-tiercd to allow both the more expe~~enced cap~tal defense counsel and thenewcomers in the field to recave appropr~ate training. Faculty members includenoted capital dcfcnse practitroners Stephat Bright, Bryan Stevenson, PhilW~schkae~nper, Ibben Mom, Scharlctte Holdman, Richard Burr, M CristinaGutierrcz, Natman Schaye, Denise LeBoeuf, James Boren, and N~ck Treuticosta.Fer a bmchure and regismtien ~nfornwtion, ploasc contact the NACDL Dcath Penalty RmumC Collwel, BnyaGreeue, at tgrcene@sck.org or 404-688-1202 after JUNE 1,2000.uty/mmt 2000 - Voice 4

Some of thebest legal-minds ...... in the state already belong to the Texas CriminalDefense Lawyers Association. We believe we havenow the best Criniminal Defense Bar in the UnitedStates. We maintain that level of excellence by continuouslyseeking out new n~inds, new energies.Therefore, we want YOU ... if your legal and personalphilosophies are compatible with our putposes andobjectives:to provide an appropriate state organization representing thoselawyers who an actively ellgaged in the defense of criminalcases.to protect and and insure by rule of law those individnal rightsguaranteed by the Texas and Federal Constitntions in criminalcases.to 1,esist proposed legislation or rules w11ich would curtail suchrights and to promote sound alternatives.to promote educational activities to i~iiprove the skills andknowledge of lawyers engaged in the dcfeose of criminal cases.to improve the judicial system and to wge the selection atidappouitmeot to the bench of well-qnalified and experiencedlawyers.to improve the col-reclional system and to seek more effectivehabilitation opportaiiities for those convicted of crimes.- to promote constant improvement in the administration ofjustice.ADVANTAGES FOR TCDIA MEMBERSThe Voice for the Defense magazine.Tlic "Significant Decisions Report" of iulpo~fant cases decidedby llie Texas Court of Criminal Appeals and Federal Courts.TCDLA Metnbership directory--referrals to and from crimi~laldefense lwyers in over 100 Texes cities.Outstanding educational programs--featul-ing recognizedexpel-ts on practical aspects of defense cases.Availablility of Lawyers Assistance Committee, a ready sourceof information and assistance to members, and the AmicusCuriae Committee.Organizational voice U~rongh which criminal defense lwyerscan for~nlilate and express t1ici1- posirion on legislation, conrtreform, importanl defense cascs through Amicus Cnriae activity.Disco~nits for publications of interest to criminal defenselawyers.............................................lNew Member Appbcat~onI!BRCII~W~ ~~phcationIhate wl~cther certificate is desired Y NI!~r.- Ms.- Mrs.-I!~ameI!~aw Firm!~ailing~ddressI!cityStateZIP!~elepl~one Fax I!E-mail address!coull,yI!~ar Card NumberI!~ar Card Date: MonthYearIate of Birth:re you curently a member of NACDL? Y Nf~lease check correct category:iRegular nmnber licensed to practice:l 2 years or less, new member of TCDLA - $75i l mon: than two years - $150. H Student - $20Ij I Volnntary sustaining - $300i l Sustaining $200- l Atlilrate - $50 !III Public DefenG $50If H Members in the firm of a slrstalnlng or d~attcr ~mmber - $50 iIicertified Criminal Law Specialist Y N !II,Have you ever been disbarred or disciplined by any bar assa- ifciation, or are you the subject of disciplinaly action nowiipending? Y N IIiDate Signihwe af Applicant IIIiI hereby apply for ~nembersbip in the Texas Criminal Defense iiLawyem Association and enclose $___ as my annualiimembership dnes for the year -.IiOf the dues amount, $36 ($19 if a student member) is for an ijannual snhscription to the Voice for the Defensc and, $39 of iiregular dues is for TCDLA lobbying.ENDORSEMENTIiI, a current member of TCDLA, believe this applicant to he a iipcrson of professional competency, integreity, and good moral iicbarcter. The applicant is actively engaged in the defense ofijcriminal cascs.IISignitnre of MemberIIIiPri,rlo, Dpe Afcntberk NnrrreIjMail to: Texas Criminal Defense Lawycrs AssociationIIAtto: Membership DcpartmentII600 West 13th StreetIAustin, Texas 78701!512-478-2514 fx 512-469-9107IIjAmount Enclosed $Iil AMEX IVISA I MASTERCARD l DISCOVER iiCard NmnherI;Expiration Date Name m Card IIIIIIIII!

schedule of eventsoctjanmarseptrsejune. Scholorsh

~ ~Jdn w in New Orleansfor Just $119 a nlghuSeulsmberl-8,2000 + Doubleme Holsl-CanalSueet' + 8001222-813W new Orleans,LouislanaThursday, September 7,20008:00 Registration8:15 Welcoming Remarks8:30 Defending Healthcare Fraud CasesTracy Mabry, Austin and Tom Mills, Dallas135 Exculpatory EvidenceTim Evans, Forf Worfh200 Federal Sentencing IssuesJudge Vanessa Gilmore, Houston. ~3:00 Cross Examination of an Expert WitnessJim Boren, Baton Rouge935 Downward Departures from the HeartlandMarjorie Meyers, Houston10:15 EthicsRichard Anderson, Dallas11:15 Defenses: Everyone Should Have at Least OneGerald Goldstein, San Antonio1:30 Common Errors in Federal Criminal PracticeU.S. Magistrate Calvin Botley, Houston215 Investigation and Defense of EnvironmentalProsecutionsMichael P. Heiskell, Forf Worth3:15 Storytelling for Opening and ClosingStatementsRobert Glass, New Orleans4:00 Dissecting Federal InformantsWilliam 6. Moffitt, Washington, D.C.Friday, September 8,2000Litigation Under the Hyde AmendmentChip Lewis, HoustonJury Selection in Federal Court: The 15 MinuteVoir DireRobert Hirschhorn. LewisvilleIssues Before the Magistrate: Identity, ProbableCause, and DetentionU.S. Magistrate Mary Milloy. HoustonFerreting out Government MisconductMichael Ramsey, Houston3:45 Overview of the Grievance Process: :Bill Meili, DallasHotel deadline is Auaust - 16. Scholarshio deadline isAugust 18.Please complete and sehd this registration form by mail ti'TCDLA -600 West St. Austin TX 78701-1705. 1~'~ .~or by fax to (~12) 469-9107. .~ .NameBar Card #AddressCity, State, ZipPhoneFalE-mallNon-Member $350.00member price!0 New Member $ 75.000 Renew membership $150.000 Eariv Realstration ends Ausust - 25". After that dateplease a&$ 50.000 Donation to TCDLEI Scholarships(501~3 organization) s-Your total S-0 Check made payable to TCDLA enclosed.0 Charge my u Visa 3 American Express0 Mastercard 0 DiscoverName on CardCard NumberExpiration Date0 Please check here or call the office if you requirlspecial assistance. We will be happy to help you irany way we can.Scholarships availaole. please cal Randy at 5121478-2514 oche-k out our Web site - ! rru.(v~~:wn for more informal'orabout this and other TCDLAseminars