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Affidavit of Non-Prosecution – An effective tool for the defense of family violence cases

When the dust settles after an arrest for assault family violence, almost invariably loved ones come to me unified looking for a path forward. Having the support of the alleged victim can be a vital asset to the accused’s defense. The most common questions posed to me relate to if and what the alleged victim do to drop the charges. An arrest for family violence is very unsettling but it is important to understand what constitutes assault family violence and just how serious is a domestic violence charge. In this article, we are going to cover the definition of Assault Family Violence, the seriousness of a domestic violence offense, whether or not you can fight an assault charge, and if an alleged victim can “drop assault charges” in Texas.  

Assault family violence is when an individual is accused of causing bodily injury to a spouse, family member, household member or someone the defendant is in a dating relationship. Assault FV is a Class A misdemeanor punishable up to 1 year in jail and up to a $4000 fine. In addition to jail time and fines, a FV conviction also comes with a host of other penalties including prohibition of owning firearms, felony enhancement for future FV arrests, etc. The punishment range itself makes this charge a serious one and requires the attention of an experienced lawyer well-versed in matters of domestic and family violence law. 

The seriousness of a family violence charge is what usually prompts my clients and their families to ask, “how do we go about getting a case involving domestic violence dismissed?” One important tool that a lawyer uses in fighting a domestic violence charge is an affidavit of non-prosecution. This affidavit is signed by the alleged victim in the family violence charge. The affidavit contains usually a simple statement from the alleged victim requesting that the charge against the defendant be dropped or dismissed. It is important to note that this non-prosecution affidavit should not include any details or statements relating to the guilt or innocence of the defendant; it is a simple declarative statement from the alleged victim asking that the charges be dropped against the defendant.  

Can signing an affidavit of non-prosecution get the alleged victim in trouble with the State? This is a question often asked of me by the alleged victim who is seeking to have the charges dropped. This fear is a common misunderstanding of how the criminal justice system works. Many people are under the misconception that we must always cooperate with the State and its prosecutors. This notion is simply false. An alleged victim has the right to participate or not participate in the prosecution of the defendant. That decision lies solely with the alleged victim and is certainly not ever the decision of the State, the prosecutor, or the defendant. An alleged victim without fear of retribution may freely express, in whatever form, his or her opinion on how a defendant should be prosecuted. 

Remember that a proper affidavit of non-prosecution does not contain any details or represent any retraction of the allegations of the incident. That is not its function. Many alleged victims have expressed to me concern that signing an affidavit is somehow the same as recanting what happened or suggesting that they originally made up the charges against the defendant.  That by signing it, this will somehow get them in trouble with the law for being untruthful at the time of the incident. However, it is important to understand that the affidavit does not try to answer what happened but merely to express the wish of the alleged victim to have it dismissed.  

Does an affidavit of non-prosecution work? The answer is complicated but the easiest response is sometimes. It’s definitely not a silver bullet. Some defendants have the impression that if the alleged victim executes an affidavit of non-prosecution the case will automatically be dropped. This is just not the case. The affidavit can certainly be an important step in getting the case dismissed but a prosecutor may also disregard it as well if other factors in the prosecutor’s mind outweigh the wish of the alleged victim to drop it. That is, the affidavit becomes one of many considerations the prosecutor will weigh in determining whether the State will pursue charges. 

One significant consideration in determining the effectiveness of the affidavit is the criminal history of the defendant. If a defendant has no history, a prosecutor will be more likely to consider the wishes of the alleged victim to have the assault charges dropped. If a defendant has some criminal history, this doesn’t necessarily invalidate an affidavit of non-prosecution. The prosecutor will particularly look at the defendant’s family violence history. Has the defendant been arrested for domestic assault in the past? This one factor is especially important to the prosecutor in recognizing the affidavit.   

In addition to any defendant’s arrest on family violence, a prosecutor will also consider any police reports of domestic unrest. Any time the police are called out to a domestic disturbance, even if no arrest is made, a report is written up to document the event. So, a defendant who may have no formal arrest for family violence may nonetheless be viewed with great suspicion by the prosecutor just by virtue of how often the police are called out to their home. 

Ultimately, whether an affidavit of non-prosecution and an alleged victim’s lack of participation is effective comes down to one consideration: the strength of the prosecutor’s case. Can they “make the case” with the evidence they already have including any physical evidence and statements already made by the alleged victim? An affidavit of non-prosecution usually signals to the prosecutor that the alleged victim is not going to be cooperative with the State in its prosecution of the defendant. This perceived lack of cooperation from the alleged victim forces the prosecutor to make the hard calculations regarding the likelihood of securing a conviction without the alleged victim’s help. Should the prosecutor conclude that it will be too difficult to continue, then the affidavit of non-prosecution can become the catalyst for a dismissal of the case. 

If you are looking to obtain or have any other questions regarding an affidavit of non-prosecution, please don’t hesitate to contact us at Chambers & Associates. Hiring a skilled defense attorney to handle a family violence case is extremely important. David Chambers has over 25 years of obtaining  dismissals for our clients.  We work to ensure your legal rights are protected and offer the best legal defense possible.  You won’t just be working with  Mr. Chambers; you will have an entire team dedicated to your case.  Contact us today for a free consultation  at  (512) 474-1404. 

Sleeping it off… Can you get a DWI?

Sleeping it off in the car after a fun night out is a common way to attempt to avoid a  DWI/DUI  arrest in Austin. If you’re not driving the car, the officer surely won’t arrest you…right? 

 The answer to this question is not so cut and dried. It comes down to how a court eventually interprets what it means to operate a motor vehicle under the Texas DWI statute. The basic question is: has the individual exercised enough control over the vehicle to constitute operating or driving the car? An officer (who did not see the “operation of the vehicle”) approaching a vehicle with a sleeping occupant is trained to gather information that attempts to answer, “how did this vehicle get here.” Every part of the interaction with the officer is designed to collect information to support arresting you for a DWI. 

If you find yourself talking to an officer after sleeping it off, what you say/do has a dramatic impact on whether or not you are charged with a DWI and, if charged, whether or not you could ultimately be convicted. Let’s take a deeper look at some of the scenarios that lead to the arrest of a sleeping occupant. At the end, we’ve include tips to avoid a DWI arrest. But first, a word about “operation.” 

 A DWI arrest is all about two things: Operation and Impairment. For the purposes of this article, we will focus on operation and save impairment for another day. 

 Operation and Control 

Surprisingly, there is no legal definition for operating a motor vehicle in the  Texas Penal Code, resulting in much ambiguity. Consequently, officers use their judgment, and the judges end up deciding how to interpret “physical control”. US Legal Traffic Control Laws  define physical control of the vehicle as the ability to “initiate a movement of, and in close proximity to the operating controls of the vehicle.”  This is the primary element police rely on when observing a situation where they find an individual sleeping in their car. But an officer’s judgement doesn’t always line up with the facts or the law. What is abundantly clear is that the following rule of thumb prevails: namely, that the less likely an individual is able to turn their car on and drive away, the less likely they will be found to be in physical control. 

On to the scenarios… 

Collision 

The most obvious situation is when there is a collision with another vehicle or object like a tree, curb or guardrail. The vehicle may be stationary or immobile and the engine not running but the circumstantial evidence points to recent operation of the car. If the accident involves another vehicle, a witness may be able to place you behind the wheel. It’s the circumstantial details that the police gather when investigating a possible DWI/DUI that count not whether the police actually observed you driving the vehicle. 

Sleeping in the Driver’s Seat 

 While sleeping in the driver’s seat is not usually enough by itself to make a case for controlling or operating a motor vehicle, there are other companion facts or circumstances that do contribute to determining physical control of the vehicle.  What are those circumstances? Keys in the ignition for one. A person may have just turned the key in the ignition to turn on the radio or the air-conditioning. However, a police officer will cite this fact as clearly suggestive of possible operation. The engine running. In the mind of the officer, this is further confirmation that the person is exercising control over the vehicle. If the vehicle is in gear and the individual’s foot is on the brake, the officer will most certainly conclude that the element of operation has been met. If the officer has already determined that the individual is intoxicated and the above-mentioned clues of control or operation of the vehicle are present, an officer may well conclude that probable cause exists to charge the person with DWI/DUI. 

 Simple Welfare Check 

 Typically, if police see a vehicle parked on the side of the road, they will perform a welfare check to make sure the person is not hurt, injured, or in need of help.  The officer has the authority to tap on the window and ask if the individual is okay. This often leads to the officer asking the person to step out of the vehicle or to open the car door. If the officer smells the odor of alcoholic beverage or observes poor coordination or slurred words, the officer can then conduct a DWI/DUI investigation and can ask the person to perform standardized field sobriety tests. The officer may even ask the individual to take a portable breath test. If he determines that the person is intoxicated or under the influence of alcohol (impairment), the officer must then determine whether or not that person has been operating the vehicle. Depending on the officer’s assessment of “control or operation of the vehicle,” that person may well be charged with a DWI/DUI. 

Conclusion 

Let’s be clear, setting aside all the legal stuff…It is always better to find a safe place to pull over and wait or sleep than drive intoxicated. We firmly believe and will always hammer home to a prosecutor: Choosing safety should not be a reason for punishment. We have had extraordinary success with getting these types of DWIs dismissed. With a better understanding of these situations, you may help yourself dramatically.  

Whether you pulled over to a safe spot after realizing you shouldn’t be driving or climbed into your parked car, unfortunately, sleeping in a motor vehicle all too often does not prevent someone from being arrested for being under the influence in Austin. Read the following tips to help you avoid a DWI arrest or conviction. 

Tips to Avoid Possible DWI/DUI Violation: 

Sleep in the back seat:  This will ensure that you are nowhere near the driver’s seat, making physical control more difficult to prove. 

Make sure the engine is turned off:  Turning off the engine indicates that you were not just driving or that you were about to drive.  You do not want to give a police officer any indication that you intended to drive while intoxicated. 

Make sure your keys are not in the ignition and not within reaching distance:  The best place for your keys is either outside on top of one of your tires, or in the truck.  This shows lack of physical control when the element to make the car move is not within reaching distance. 

Park in a spot that is safe, preferably not on a public road, and in a legal space:   If you are parked in a public area or on the side of a public road, your car is more likely to be seen.  In order to be safe and sleep off the alcohol in your system, make sure your car is parked away from public roads and areas.  This is also to ensure your safety; parking on the side of the road or a highway can be very dangerous. 

Do not say that you were driving while having alcohol in your system:  Even if you are sleeping in the back seat, with the car turned off, and your keys in the trunk, the police officer will still try and get you to admit that you have been recently driving. This is a way for the officer to get around the physical control element if they can prove you were recently driving, and your blood alcohol level is elevated. 

If you or a loved one have been charged with a DWI/DUI, hiring a skilled defense attorney is extremely important. David Chambers has over 25 years of obtaining  dismissals  for our clients.  We work to ensure your legal rights are protected and offer the best legal defense possible.  You won’t just be working with Mr. Chambers; you will have an entire team dedicated to your case.  Contact us today for a  free consultation  at  (512) 474-1404.
 
 

Flawed View of Officer Intervention, Our Analysis

Opinion piece written by Rafael Zapata-Yordan

Recently, the Chair of the House Committee on Corrections of the Texas House of Representatives, the Honorable James White, requested the Texas Attorney General, Mr. Ken Paxton, to issue an opinion of whether a peace officer in the State of Texas has the duty to intervene with a fellow police officer, if that officer is violating the civil rights or another citizen.

The Representative asks the question in both contexts, professional and criminal liability.

His inquiry regarding professional liability is based on the legislation established in Article 2.13 of the Code of Criminal Procedure (TCCP) which establishes “the duty of every peace officer to preserve the peace within the officer’s jurisdiction.” and that pursuant to that duty, a peace officer “shall . . . interfere without warrant to prevent or suppress crime” when authorized. TEX. CODE CRIM. PROC. art. 2.13(a), and art. 2.13(b)(1); caselaw where in Garza v. Harrison, 574 S.W.3d 389, 403 (Tex. 2019) the Texas Supreme Court ruled that “[p]eace officers are also expected to stop crime whenever it occurs.”

His criminal liability inquiry stemmed from Article 39.03 of the Texas Penal Code (TPC) which states in part:

  • A public servant acting under color of his office or employment commits an offense if he:
    • (1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
    • (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful…

In a very superficial and legally flawed opinion, the Attorney General stated that he could not conclude that a peace officer has the duty to intervene with another peace officer who is committing the crime established in Article 39.03 of the TPC.

Notwithstanding, a simple analysis could easily establish that a peace officer that fails to intervene where a fellow police officer is clearly violating the civil rights of a person, could incur in civil and criminal liability.

Let’s begin with civil liability. Under the Civil Rights Acts, 42 U.S.C. § 1983, a “person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress” (Emphasis added). That means that any public servant including a police officer, who violates the Constitutional Rights of any person is liable for the damages caused to that person because of such violation.

Our analysis here will assume that the Constitutional Right violated by the officer is clearly established law at the time the conduct occurred, so there is no qualified immunity.

For our analysis’s sake, let’s say that an officer has clearly violated the Constitutional Rights of a person, and his partner is right there and fails to act or intervene. That officer under Federal Law could be subject to “bystander liability” as long as the following elements are proven: that the bystander officer “(1) knows that a fellow officer is violating an individual’s constitutional rights; (2) is present at the scene of the constitutional violation; (3) has a reasonable opportunity to prevent the harm; and (4) chooses not to act”. See, Whitley v. Hanna, 726 F.3d 631, 646 (5th Cir. 2013).

The United States Court of Appeals for the 5th Circuit, creates precedent that binds all of the United States District Courts in Texas. Wherefore the 5th Circuit established the following precedent under Whitney, supra: that when a police officer is present at the scene with witnesses and knows a fellow officer is violating a person’s well established Constitutional Rights, he has a reasonable opportunity to intervene. If the officer chooses not to intervene, he is liable for any injury that person suffers.

Therefore, the 5th Circuit has established at least a civil duty upon a police officer to intervene when he witnesses a fellow officer violating a clearly established constitutional right of a person.

Another established law here in Texas declares that a police officer who violates a person’s constitutional rights also commits a criminal offense per Article 39.03 of the TPC. But even so, the Attorney General’s opinion mentions that Article 2.13 of the TCCP establishes “the duty of every peace officer to preserve the peace within the officer’s jurisdiction.” and that pursuant to that duty, a peace officer “shall . . . interfere without warrant to prevent or suppress crime” when authorized.

With this said, it is beyond my comprehension, how the Attorney General could not conclude that an officer has a duty to intervene when another officer is clearly committing a criminal offense in front of him. Technically, an officer who does not intervene could be criminally liable through the Law of the Parties.

Article 7.02 of the TPC states that a person is criminally responsible for an offense committed by the conduct of another if among others he/she has a legal duty to prevent a crime from occurring and he/she purposely promotes it, assists in committing it, or fails to make any reasonable efforts to stop it from occurring. Although there is no case law that has addressed the failure to intervene by a police officer when he sees a fellow officer violating the constitutional right of another person (which is a criminal offense) the wording of Article 7.02 of the TPC is unequivocal, when it states that a person is responsible of a crime when he knows that the crime is going to happen and fails to make reasonable efforts to prevent that crime from occurring.

A prosecutor can argue that an officer who saw that his fellow officer was using unjustifiable and excessive force against a person, knew that the fellow officer was committing a crime and needed to intervene. In theory, this argument allows for the prosecutor to charge the offending officer with a crime under Articles 39.03 and 7.02 of the TPC.

To me, the Texas Attorney General’s opinion is superficial and legally flawed. A simple analysis of Texas’ laws and the United States Civil Rights Act reveal the answer that the Honorable James White was seeking: An officer who witnesses another officer clearly violate a person’s Constitutional Right, has a duty and obligation to intervene under state and federal law.  If that officer fails to comply with his duty, he could be civil and criminally liable.

If you have experienced an unfair or unjust experience during an arrest, it’s necessary to have a criminal defense attorney who knows the ins and outs of the criminal system. We are on your side.

Cell Phones: Searches, Seizures, and Snapchat

If you are attached to your cell phone, you are among the majority. And when your life revolves around a device, you most likely want to avoid others looking through it, especially law enforcement. When law and technology intersect, a question is raised:

Is your cell safe from a warrantless search and seizure conducted by law enforcement? This decision is dependent upon an exigent circumstance taking place.

Exigent Circumstance: A warrantless search incident to arrest is commonly justified by the necessity to prevent physical harm to an officer or other persons, destruction of property or evidence, or the escape of the suspect.

To address this question, let’s revisit the Fourth Amendment because it was created to protect citizens from “unreasonable searches and seizures.”

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 What counts as probable cause to search a cell phone? To better understand what the court will rule as enough or not enough evidence for a warrantless search to occur, let’s scroll through examples of cell phone searches in various cases.

Cell Phone Search and Seizure

In 2014, the U.S. Supreme Court addressed two cases related to the issue of cell phone search and seizure:

Riley v. California and United States v. Wurie

 These cases looked at the search incident to arrest exception to the warrant requirement, when police search items that are either on the person or in proximity to the person (ie. a vehicle they were driving, a backpack on the ground, etc.). This exception has its precedent in another U.S. Supreme Court case, also out of California. In Chimel v. California,The U.S. Supreme Court held that a search incident to arrest is limited to the area within the arrestee’s immediate control, where it is justified by the protection of the officer and to prevent destruction of evidence.

In these two cases, after the defendants were arrested, officers searched them and their cell phones, both of which had potentially incriminating data on them. Following trials in these cases, both defendants were convicted and appeals eventually led to the U.S. Supreme Court.

In Riley, the defendant was stopped for a traffic violation which led to his arrest on a weapons offense. While one of the officers was searching Riley to arrest, he seized a cell phone from Riley’s pants pocket. The officer then accessed information on the phone and observed the frequent use of a gang-related term. The phone was further examined later while still in police custody. Based, in part, on the information located on the phone, Riley was charged with a shooting that had occurred a couple weeks prior to his arrest. Additionally, the State sought sentencing enhancements based on Riley’s gang membership. Riley sought to have the evidence located on his cell phone suppressed, but the trial court denied his motion and he was subsequently convicted of the charges against him.

In Wurie, police arrested him after he was observed participating in an alleged drug transaction. Police seized his cell phone at the police station. They noticed, displayed on the home screen, numerous calls from “my house.” Police then opened the phone and accessed the call log. Determining that “my house” was Wurie’s apartment, they obtained a search warrant for the apartment and following a search, located guns, drugs, ammunition and cash. He was subsequently charged with firearm and drug offenses. He sought to have the evidence suppressed, but the trial court denied his motion and he was later convicted.

The U.S. Supreme Court determined that the governmental interests (risk of harm to officers and destruction of evidence), as applied to the cell phones and their contents, were outweighed by the intrusion on the defendant’s privacy interests. They concluded that the risks normally associated with evidence at the time of an arrest are not present with digital data contained on a cell phone. It presents no risk of harm to officers; nor can it help an arrested individual escape. The Court dismissed the government’s assertions that there existed a risk of remote digital wiping or encryption.

In sum, the Supreme Court has held that, generally, police may not search digital information on a cell phone without a warrant.

The Court did indicate that situations could exist (exigent circumstances) that would allow for the warrantless search of a cell phone, but those would have to be addressed on a case-by-case basis.

Snapchat or Snap“charged”

Another 2014 case, out of Texas, addressed the issue of cell phone privacy when an individual is incarcerated, and the cell phone is stored in the jail property. In State v. Granville, following his arrest on a Class C misdemeanor, Disruption of School Transportation, Anthony Granville was booked into jail. His personal property, including his cell phone, was taken and placed in the jail property room. Sometime later, an officer obtained the phone from jail personnel to determine if the phone had “improper” photographs on it. After locating an “improper” photograph on the cell phone, Granville was charged with an additional offense, Improper Visual Photography, a State Jail Felony offense.

Mr. Granville filed a motion to suppress the photograph evidence obtained from the cell phone. The trial court granted the motion, indicating that the officer had every opportunity to obtain a search warrant for the cell phone contents and that no exigent circumstances existed. The State appealed and the case eventually found itself before the Texas Criminal Court of Appeals.

The Texas Criminal Court of Appeals, in upholding the trial court’s decision to exclude the photographic evidence, emphasized that the officer’s actions were the equivalent of going through a person’s personal effects and violated that person’s reasonable expectation of privacy in his cell phone. They rejected that State’s argument that a cell phone was no different than a “pair of pants or a bag of groceries, for which a person loses all privacy protection once it is checked into a jail property room.”

A recent case (Opinion filed on 9/22/20) out of the Texas 14th Court of Appeals addressed the issue of a seizure of a person’s cell phone “to preserve whatever was on the device” under the exigent circumstance exception. Igboji v. State. No. 14-17-00838-CR.

Following a robbery of a restaurant, employees were suspicious of Mr. Igoji based on a Snapchat video he posted following the robbery. Several days after the robbery, police requested of Mr. Igoji that he turn over the Snapchat videos. Igoji explained that Snapchat deletes itself after 24 hours so there was nothing to provide. Despite this, the phone was seized.

The Texas 14th Court of Appeals held that the warrantless seizure was not justified. There was no indication that Igoji was actively deleting evidence on his cell phone. Accordingly, no exigent circumstances existed to justify the warrantless seizure.

If you or a loved one have been arrested in Austin, Texas, it’s crucial to work with an experienced defense attorney who takes all evidence into consideration when fighting for your freedom.

The Right to a Jury Trial: It’s Your Right and Why That’s Important

Your right to a jury trial is so important that it’s guaranteed by the U.S. Constitution. It is established in the Bill of Rights, along with other important rights such as the freedom of religion and speech as well as the right to possess guns (bear arms).

Despite the importance of this right, just 2 % of cases go to trial. You read that correctly, the overwhelming majority of criminal cases DO NOT go to trial.

But it is often said, though, the right has might. In other words, the right to a jury trial carries strength even if it is not exercised. The right to a jury trial, if used appropriately, can be like a big stick or a gun at the hip. And smart attorneys keep their weapons close, in plain view.

You may have never thought about it this way but the right to a jury trial is YOUR right, and NOT the prosecutor’s, right? This is an important distinction. A prosecutor cannot force your case to jury trial…because it’s YOUR right, not theirs. This simple distinction levels the playing field for an individual facing a very unlevel playing field. Prosecutors have challenged this from time to time in an attempt to wrestle with one of the few points of leverage that a defendant possesses. Let’s take a look at a recent Court of Criminal Appeals decision that further establishes that there is no ABSOLUTE requirement to a jury trial.

In Pacas vs. The State of Texas, the central question posed by this case is: Does the Texas Constitution create an absolute requirement of jury trials in every criminal prosecution?

The Court of Appeals answered no, the Texas Constitution does not prohibit a defendant from waiving a jury trial in felony cases. The Court’s analysis of Art. I, §10 and §15, review of the history and context of the adoption of the Texas Constitution, and precedent from the Court of Criminal Appeals supports this conclusion. Read Opinion.

In these decisions, there is often a judge or two who disagree with the majority decision. In this case, Judge Goodman dissented. Here is a summary of Goodman’s dissent:

 “As I have previously written, when construed according to its plain meaning and historical context, Article I, §10 imposes an absolute requirement that cannot be forfeited or waived. It requires that all prosecutions for Old Code felonies be tried by a jury—even if the defendant affirmatively seeks to enter a plea of guilty or otherwise waive his right to a trial by jury. I stand by my dissent in Farris, and its reasoning is dispositive here.” Read Opinion.

For those who pay attention to such things, it has always been said that the only thing that a criminal defendant cannot waive is his right to a jury trial—in a death penalty case. There has never been a suggestion that a defendant could not waive anything else. See also Tex. Code Crim. Proc. Art. 1.14(a).

So, this is certainly a novel argument. It has gaine\d some traction because the dissenting justice believes in the argument. The majority opinion does a remarkable job of going through the history of the right to a jury trial in Texas. Even though this a novel issue, and there is a dissenting opinion, you should not necessarily expect a review by the Court of Criminal Appeals. The high court has previously (and recently) refused to review this issue.

Why you hold the right to have a jury trial

In Texas, any person has the right to a jury trial in a criminal case. That means that no one can be denied the right to be tried by a jury of its impartial peers. The right comes from three provisions:

  1. The Sixth Amendment to the United States Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed…” U.S. CONST. amend. VI.;
  2. Article I, section 10 of the Texas Constitution, titled “Rights of accused in criminal prosecutions,” which states that “In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.” TEX. CONST. art. I, § 10; and
  3. Article I, section 15, of the Texas Constitution titled “Right of trial by jury,” states: “The right of trial by jury shall remain inviolate“ and authorizes the Legislature to “pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.” TEX. CONST. art. I, § 15; see also TEX.CODE CRIM.PROC.art.1.13

The right to a jury trial is inviolate, which means no one can be denied said right, and any verdict issued by a Court that denies said right to a defendant is unconstitutional and therefore invalid.

The origins of such an important right come from tradition, first from 13th Century England, where a person could ask to be tried by one of his peers instead of being subject to torture, decision by battle, or other barbaric methods. In other words, it was created to enforce fairness.  See, Singer v. United States, 380 U.S.  24, 27 (1965) (citing I Holdsworth, A History of English Law326 (7th ed. 1956)).

In that light, when Texas declared its independence from Mexico, the new Republic adopted in its Constitution the right to a trial by an impartial jury, in light of all the abuses the Texans have suffered from the State of Mexico.  See, Repub. Tex. Const.  of 1836, Sixth Declaration of Rights, reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822-1897, at 23 (Austin, Gammel Book Co. 1898).

It was by logical progression that when the Republic of Texas became a State of the Union, they extended that right to the Constitution of the State of Texas, and in harmony with the Constitution of the United States of America.

Waiving the Right to a Jury

Now, the right to a Jury trial can be waived. Depending on the type of case you may have, your attorney can recommend that you request that the Court allows you to waive your right to a Jury Trial.  The reason could be that your acquittal could depend on a strict or technical application of the law to the alleged facts of the case.  In that case, a Judge would be more suited to see such a trial, than a juror who does not possess technical knowledge of the law.

Notwithstanding the right to a jury trial can only be waived if the following requirements are complied with:

  1. The case is not a capital felony case in which the state notifies the court and the defendant that it will seek the death penalty;
  2. The waiver must be made in person by the defendant, in writing, in open court, and with the consent and approval of the court;
  3. The waiver must be consented and approved by the attorney representing the state in writing; and
  4. If the case is a felony, an attorney must be appointed to the defendant.

Such requirements come from the Texas Code of Criminal Procedure, Art. 1.13 in light of Texas Legislature’s power to regulate and to maintain the purity and efficiency of the right to a jury trial, as provided by Article I, section 15, of the Texas Constitution.

Challenges When Waiving Criminal Cases

Recently, there have been some challenges in Harris County about the waiver of a jury trial.  In two cases, defendants have argued that the Texas Constitution mandates that a criminal case be tried by jury and does not allow the waiver of said right.

Notwithstanding, in both cases, the First Court of Appeals of Texas has rejected such an argument and has confirmed that the Texas Constitution allows for such a waiver.  See, Pacas v. State, 01-18-01016-CR (Citation Pending); and Farris v. State, 581 S.W.3d 920, 924 (Tex.  App.—Houston [1st Dist.] 2019, pet. denied).

But even more, well-established precedent already exists, stating that the right to a jury trial can be waived by a defendant. The Court of Criminal Appeals decided a long time ago (1933), that the Constitution of Texas does permit the waiver of the right to trial by jury and the legislature to establish guidelines to waive the right to a jury trial. See, Dabney v. State, 124 Tex. Crim. 21, 60 S.W.2d 451, 451 (1933).

In conclusion, the Texas Constitution grants every person that confronts a criminal case in the State of Texas to have a trial by an impartial jury, and if such a right is denied to a person, any verdict issued on such a trial would be unconstitutional and therefore, void. However, like most rights, the right to a jury trial can be waived if the requirements established by law are complied with and the State gives its consent.

It is the defendant who has the right to request to the court whether he or she wants to have a trial by jury or waive such right. Such a decision should be taken after carefully consulting with an attorney after he makes a thorough analysis of the facts of your case. He can determine if all elements of your case and application of the law are better presented to a jury that is composed of laypersons, or a judge who has technical knowledge of the law.

Family Violence Judge Recused: How Social Media Can Affect Your Case

The Travis County criminal courts were recently shaken up by the recusal of recently elected Judge Dimple Malhorta, presiding judge of Travis County’s family violence County Court at Law #4. A motion was filed requesting that Judge Dimple be removed from a protective order case because of her bias against criminal defendants charged with family violence offenses. The motion cited her social media posts to support the assertion that she was unfairly biased.

It is extraordinarily uncommon for a judge to be recused from a case in Travis County. Requests for recusal are not uncommon, but actual recusals are rare. The rarity of the recusal and the conduct on which the recusal was based certainly raises eyebrows. This recusal may have a significant impact on this case in particular and the court at large.

It’s Just Social Media…or is it?

Social media platforms were created for people to freely post opinions, read news articles, laugh at memes, and communicate with others. There is no shortage of individuals making a living by carefully crafting a public image. In the case of Judge Dimple, she was using hers to boost her election efforts. This is a common practice in judicial campaigns where a candidate communicates to potential voters where he/she stands on various topics. A candidate is carefully crafting their public persona. And it is really no surprise that a former prosecutor would post things such as:

“If you know me personally, you know the only reason I’m running is because fighting against domestic violence has been a lifelong passion of mine. I have never run for a different court and never will.”

Alongside a news article, she posted with the headline “Boyfriend strangled and killed missing Austin woman, according to the affidavit.” she’s quoted as saying, “This is a tragic reminder that domestic violence is also an epidemic and one that continues to take lives. In this particular incident, a former partner of the suspect alleges that he also strangled her during their relationship. Strangulation is one of the many risks of lethality in relationships where abuse is occurring. … Agencies are still providing assistance with protective orders. County Court 4 will remain open so that those cases can be heard.”

But as a judge, one may not have as much latitude in posting their public opinions, especially when these opinions can be used as fodder to allege bias against those who are supposed to have the constitutional protections to be presumed innocent.

How Does a Recusal Happen? 

First, here’s the lawyerly boring stuff.

Recused – when a judge, prosecutor, or juror is unqualified to perform certain legal duties because of a conflict of interest or impartiality

The motion was brought pursuant of the Fifth Amendment (Due Process Clause) and Fourteenth Amendment to the United States Constitution as well as Rule 18b of the Texas Code of Civil Procedure which states:

“A judge must recuse in any proceeding in which: (1) the judge’s impartiality might reasonably be questioned and (2) the judge has a personal bias or prejudice concerning the subject matter…”

In the situation involving Judge Dimple, a motion was filed that outlined her offending conduct. A retired judge was brought in to hear the motion and arguments. Based on the details in the motion and those oral arguments, the visiting judge ordered Judge Dimple “recused”, finding that significant evidence existed that she was biased in favor of those labeled as alleged victims.

The extra-judicial statements pulled from her social media profiles appear to support the accusations that she was an advocate for victims. Herein lies the problem. A judge must remain impartial (even if only maintaining the appearance of impartiality). An individual who is charged with a criminal offense must be presumed innocent until such time they are proven or plead guilty. In the case of a family violence offense, the “other party” (often referred to as the alleged victim) cannot be a victim until guilt of the accused is proven.

Judge Dimple’s statements call into question her ability to see the defendant with a presumption of innocence because she “advocates for victims” and victims merely need to state that an incident occurred. No trial. No evidence review. Just someone stating something happened. The motion asserted and the visiting judge agreed: her social media posts did not equate fairness to all parties of the case, creating an image of a judge who will not give an impartial verdict in a Family Violence Case involving a restraining order.

Even with evidence provided, there’s a grey area of what social media actions make a judge come off as biased.

Facebook Friends Have Tripped Up Other Judges

A simple Facebook friend request can completely derail a case’s conclusion. A Wisconsin judge made this mistake when accepting a friend request from a mother in a domestic violence case he was working on.

The judge liked posts, sent well wishes, and posted pictures of her with her kids. The judge didn’t engage in any interaction with her and stated that none of her actions on social media persuaded the judge’s decision in granting her primary care of her children.

The judge asserted that he already had his mind made up about the case before he accepted the friend request.

The father of the children filed a motion for reconsideration of the judge’s decision because of access to off-the-record facts. The court reviewed: (1) the timing of the Facebook friend request and the judge’s affirmative acceptance; (2) the volume of the mother’s Facebook activity and the likelihood the judge viewed her posts and comments; (3) the content of the Facebook activity as it related to the context and nature of the pending proceeding; and (4) the judge’s lack of disclosure.

Ultimately, the judge’s decision was reversed, and another judge was assigned because of the “serious risk of actual bias.”

So, What Should Judges Post?

 Judges accept the duty to respect the judicial office and uphold a public image that places confidence in the community. Since their digital footprint will be under scrutiny if anything stands out, Judge Herbert B Dixon Jr. specifically created four helpful commandments for judges to take into consideration before making something public:

1. Maintain dignity in every comment, photograph, and other information shared on social networking sites.

2. Do not make any comment on a social networking site about a pending matter.

3. Do not view a party’s or a witness’s pages on a social networking site or use social networking sites to obtain information regarding a pending matter.

4. Recuse from any case where the social networking relationship with an attorney or party creates bias or prejudice concerning the lawyer or party.

The above commandments stem from the Model Code of Judicial Conduct.

Judge Dimple is a kind, compassionate and fair individual. Her actions should be an example to not only judges but also prosecutors, defendants, alleged victims, and even defense attorneys about the perils of such public broadcast of opinions and positions. Is Judge Dimple biased? Maybe so…probably so. But we see bias in nearly every aspect of the criminal justice system…bias is human nature. It is not whether or not the bias exists – because it certainly exists – it is how well your advocate, your attorney can manage and overcome the bias to unstack the deck. It is your attorney’s job to shield you from the biases that exist and safely guide your case to a conclusion.

It is important to understand that, at this time, she is only recused from that particular case. And it’s not the first time that a defense attorney has tried to get Judge Dimple recused. While the previous motions were declined, it is expected that this will open the door to many more requests for her recusal. And this recusal could certainly have implications well beyond this particular case.

If you or a loved one has been arrested, reach out to receive a fair shot with someone who doesn’t let systemic bias dictate your future.

I DON’T WANT TO PROSECUTE!

Relationships are complicated. In my capacity as a criminal defense attorney, I talk with partners, husbands and wives, and boyfriends and girlfriends about the most embarrassing of situations two people can face. It is not my job to judge…it is my job to assess a situation and help navigate everyone, so my client has the best chance at moving forward in life without a debilitating blemish on their record.

There is a question I get asked more often than any other in those family violence case meetings: “What do I do if I don’t want to prosecute?” The fact that I get asked this question so often by the alleged victim illustrates one of the most surprising aspects of handling a domestic violence case: in the overwhelming majority of family violence cases, the victim doesn’t want to prosecute.

Even though patterns of domestic abuse can occur, in the majority of family violence cases I have handled the arrest is an isolated, uncommon event. A temporary breakdown occurs in the relationship but it’s not fatal to its long-term health.

Recognizing that their partnership is worth saving, alleged victims reach out to me for advice on how they can resolve the criminal case without it destroying the foundation of their relationship. Clearly, in these instances, the alleged victim has already determined their relationship is worth preserving for reasons only he or she can say. In some rarer circumstances, an alleged victim is not interested in saving the relationship but doesn’t want the loved one to suffer the consequences of prosecution and conviction. Whatever the reasons for not wanting to prosecute, they seek my advice.

Representing the Defendant

Now, the easiest response to the alleged victim as the lawyer representing the defendant is to say that I can’t legally tell you what to do. Potential conflicts can easily arise if I attempted to represent the defendant while trying to cater to the wishes of the alleged victim, particularly in volatile situations.

Unfortunately, such an answer rarely satisfies the alleged victim or, more importantly, the client I represent. They love each other. They are still together. Their interests align. I recognize that in the majority of the family violence cases I take on the defendant and alleged victim share a common goal: to get the charges dismissed.

This is why it is so important to share information with the alleged victim in an impartial way without betraying the trust of the defendant I am duty-bound to represent. It is a potential minefield an experienced criminal defense attorney must cross when resolving a family violence case.

It’s Your Own Decision

I preface any conversation with an alleged victim with the above admonition. You as the alleged victim should make your decision to prosecute or not prosecute on your own terms. Period. No one, not the defendant, the defendant’s attorney nor the prosecutor for that matter, should bully, compel, or threaten you in making your decision.

This decision HAS to be made by you and you alone.

In my career, I can say have I have never told an alleged victim what to do when it comes to the prosecution of a domestic violence incident. Indeed, I always assure the alleged victim that if the defendant, that is my client, pressures the alleged victim to not prosecute, then to let me know and I will deal with it. I have an obligation to the defendant that I represent to make sure undue influence is not applied because that may result in another criminal charge. And, of course, an important part of my job description includes keeping my client from getting into further trouble.

You Can’t Always Trust Authority

However, there is another potential and sometimes deceptive influence that is brought to bear on the decision-making of the alleged victim: the actions of the prosecutor’s office. The most important thing I can communicate to an alleged victim is that you are not necessarily obligated to cooperate with the prosecutor or his agents. Many alleged victims think that they have to cooperate with the police and the prosecutor, or they will get in trouble. This is NOT TRUE.

You get to decide what you want to say and who you want to say it to. In many instances, the prosecutor will trade this false belief that you must somehow cooperate to get important information from you. Information that you may not want to share. The important thing for you to understand is that you are in complete control and that no display of authority on the part of the prosecutor’s office should sway you.

Demand to Be Treated Like an Adult

The second thing I tell an alleged victim after the admonition that I can’t represent you is that you are an adult and I will always accord you the respect of treating you like an adult. This, however, is not always the case with the prosecutor’s office. I can’t tell you how many conversations with prosecutors I have had over the last 25 years hearing the prosecutor tell me that the alleged victim is not capable of making decisions regarding the resolution of the case. Sometimes, in fact, prosecutors will tell me bluntly that they simply don’t care what the alleged victim wants.

Prosecutors have taken a more parental approach to handling the alleged victim. They cite all sorts of rationales why an alleged victim can’t have final say in the disposition of the family violence case. But it all boils down to this very essence: the prosecutors know better. They’re the parents and you’re the children and they make the final decisions. It doesn’t matter to most prosecutors that it is impossible to know what an alleged victim’s real circumstances are and how potentially devastating the prosecutor’s decision can be to their future. The prosecutor must plod on to the next case and the next decision. The consequences and repercussions of these decisions unfortunately are left for the alleged victims to deal with.

You Have Decided Not to Prosecute

If this is your decision, it is extremely important for an alleged victim to understand that the prosecutor is not bound to what that alleged victim wants. Understandably, many alleged victims believe that if they simply call up the prosecutor’s office and express their desire to have the case dropped the case will be dropped. Isn’t the prosecutor representing me? Doesn’t the prosecutor have to drop the case if I say so?

The answer to both questions is a resounding NO. The prosecutor represents the State, not the alleged victim. The prosecutor is not bound in any way to the wishes of the alleged victim. The prosecutor’s agenda does not necessarily include the future well-being of the alleged victim or the alleged victim’s family.

The prosecutor’s decision in any given family violence case is influenced more by that prosecutor’s own beliefs, prejudices, and preconceptions than what an alleged victim could provide as reason for dismissing the case against the alleged victim’s loved one. For the prosecutor, office politics in many instances can far outweigh any concerns an alleged victim may have with the defendant receiving a conviction or being branded a spouse abuser.

It’s not the prosecutor’s concern to ensure that the defendant doesn’t lose his job as a result of a family violence conviction. The prosecutor has to process thousands of cases every year and cannot possibly understand or be concerned with the fallout that seeking such convictions can cause to the families involved. Fundamentally, a prosecutor’s job is to prosecute, and to think otherwise is wishful and sometimes dangerous thinking.

Then What Can I Do?

If the future harmony and the financial viability of the family is not necessarily a factor in the prosecutor’s decision to seek a conviction, then what can an alleged victim do if the alleged victim does not want to prosecute? The choices are limited. The alleged victim can ring up the prosecutor’s office and hope that somehow, he or she can persuade the prosecutor or, more likely, a prosecutor’s representative (victim witness coordinator) to drop the charges.

Over the 25 years plus that, I have been practicing criminal law, I have seen countless examples of prosecutors ignoring the wishes of the alleged victim. You may think that calling the prosecutor’s office and talking to the prosecutor is the easiest path to requesting a dismissal… it’s not.

First, you probably won’t be talking to a prosecutor. The prosecutor typically is handling too many cases to have time to personally interview each alleged victim and will normally delegate this task to a victim-witness coordinator.

This victim coordinator is not an attorney and has no power to resolve your case. The coordinator can simply ask questions and listen to you. As a result, this coordinator is given a great deal of power to shape the narrative of the case for prosecution. Indeed, the coordinator is trained to ask questions that can potentially provide more admissions and incriminating statements to prosecute the defendant. Make no mistake, this is what you face when you pick up the phone and call the prosecutor’s office.

So, in my experience, the alleged victim is more likely to win the lottery than convince the prosecutor’s office to dismiss.

Calling the prosecutor’s office can actually hurt the chances of dismissal because, as mentioned earlier, the person who talks to the alleged victim is normally trained to elicit statements from that alleged victim that could potentially lead to more evidence for a conviction. No question, it is an easy mistake to make by reaching out to the prosecutor’s office thinking you can persuade them to dismiss but, in my opinion, once you understand their agenda, it is one you do not have to make.

Another Approach to Consider

So, what can I do if I decide not to call up the prosecutor’s office? No doubt you have heard the old proverb that “silence is golden.” Sometimes not doing anything can be more effective in obtaining the desired result.

Think about the duties of a prosecutor. In order to prosecute they need evidence. Collecting evidence does not end with the initial investigation by the police. It is an ongoing process that normally depends on the continued cooperation of the alleged victim. To properly get ready for trial, a prosecutor will need to prepare the testimony of the alleged victim. If the alleged victim is not available to provide additional information and fill any of the gaps in the prosecutor’s case, the prosecutor then, it stands to reason, will have a much more difficult time getting a conviction against the defendant.

By not participating in the prosecution of the defendant, e.g. from not communicating with the prosecutor to avoiding being served with a prosecutor’s subpoena to appear in court, the alleged victim is not simply sending a message to the prosecutor but is substantively and seriously compromising the prosecutor’s ability to secure a conviction. For a prosecutor, talk is cheap. A simple request to not prosecute doesn’t really impact the prosecutor’s case. But when the alleged victim takes these kinds of substantive measures a prosecutor must re-evaluate the probability of making the case.

The Leverage I Need

By creating this weakness in the prosecutor’s case through not participating, the alleged victim provides me the necessary leverage to negotiate with the prosecutor for that desired dismissal. The prosecutor may bluster about going forward with the case but for the prosecutor, this course becomes a very tough road to travel without the cooperation of the alleged victim. It also means putting this case on a trajectory for trial that drains the very limited resources of the court. Naturally, a prosecutor is very hesitant to tax the trial court’s time with a case in which the alleged victim does not want to participate. Further leverage for that dismissal.

At Chambers & Associates, we strive to get every case dismissed. We want to be there to help you in this stressful time. We understand that family is the most important thing in your life, and we will take all the measures required to protect against the disruptive effects of an unnecessary prosecution.

Call our 24-hour legal helpline at (512) 474-1404 or fill out our confidential contact form to explore all of your legal options during this difficult time. Our Travis County criminal defense lawyers want to protect your family’s future.

 

The State’s Response to Rising COVID-19 Cases in Jails and Prisons

 

We have fielded countless calls from distressed family members seeking release of their loved ones amid the COVID-19 outbreak. While we have worked tirelessly to employ many different methods of securing one’s release from jail as quickly as possible, we know all too well the fear and concerns that persist around COVID exposure in the jail system.

While COVID-19 cases have been decreasing over the past three weeks in Texas at large, our jails and prisons remain hotspots. You may be asking, “Are prison and jail populations following the same precautions and safety protocols as the general population?”  (The short answer is no.) To better advocate on behalf of our clients, we have sought answers to a seemingly obvious question:

As Texas begins to get a handle on COVID-19 cases within the state, why are inmates some of the most vulnerable in our state?

Before we dive into this topic deeper, please know that during this time we will leave no stone unturned to find a way to get your loved out of jail in Austin.

COVID-19 Cases Continue to Rise in Texas Jails

The Texas Department of Criminal Justice is required to provide updated data about how COVID-19 cases impact local jails and state prisons. While we question the speed of delivery and accuracy of this information (read our previous article about the repeated denials of the presence of COVID in the Travis County Jail), the data that is offered shows just how severe this problem is within the system. It is now reported that every prison or jail in Texas (with the exception of one) has seen the presence of the virus. Given the clear and obvious false denials of other jails, you would be well within reason to doubt the “one exception.” Let me state that again: for all intents and purposes, every single prison and jail in the state of Texas has reported at least one positive COVID case.

To date, there have been 20,647 positive COVID-19 cases among offenders in the prison and jail system and 146 deaths. Among employees, there have been 4,438 positive cases and 20 deaths.

Even without context, these numbers cause concern. With context, they are even more distressing. Texas leads the USA with the most COVID-19 cases among prison and jail populations. Even though California is the most populous state, they have approximately half of the number of cases that Texas has—around 10,658 total cases. Why does Texas have twice the amount of positive COVID-19 cases than California?

Inmates across Texas in multiple detention facilities testify that they are being kept in close spaces with little to no air circulation. For example, at Fabian Dale Dominguez State Jail inmates experienced a rapid rise in COVID-19 cases going from zero to over five-hundred cases in two weeks. While some news stories may seem anecdotal, when we look at the aggregate data we can see some clear trends.

Furthermore, the facilities in Travis County are under lockdown due to the number of COVID-19 cases. So not only is this a state-wide problem, it is a problem that affects those in Austin, Texas directly. Additionally, as The University of Texas begins school, many experts expect COVID-19 cases to rise in Austin—potentially further burdening our local jail.

How Did Texas Governor Abbott Respond?

At the end of March, Governor Abbott issued an executive order that makes it even more difficult to release defendants from jail. This executive order came after a joint effort made by public health experts in Texas to bring awareness to the unpreparedness of Texas jails and prisons to handle COVID-19. Public health experts wrote to Governor Abbott and requested that he look into the health protocols—emphasizing the difficulty of maintaining social distance between inmates.

As the entire city of Austin was shutting down in late March, Governor Abbot made efforts to block releasing inmates accused of committing violent crimes from Texas jails and prisons. Meanwhile, Texas police departments continued their jobs as usual. As jail releases encountered a legislative roadblock, officers continued to arrest citizens.

What Does the Executive Order Say?

The order cites a case from 2018 that reversed standard guidance about procedures used to meet the Constitutional demands in bail proceedings in the state of Texas. The Governor has used this case as the basis for his March 2020 executive order that states,

The State of Texas, the Governor of Texas, and the Attorney General of Texas (“State Intervenors”) seek to intervene to defend the bail procedures that form the basis for plaintiffs’ confinement. Because the liberty interest at stake and the bail procedures at issue are creatures of state law, the State Intervenors have an interest in the outcome of this case.

The rest of the order outlines the argument for allowing executive power to take this type of control and slow down the process to release inmates from jail. Simply put, the executive order won’t release inmates who have been accused of committing a violent crime without a paid, cash bond.

Is the Executive Order Constitutional?

If you have a loved one in jail, you may be concerned that someone can intervene whenever permitted to do so and slow down their jail release. Chambers & Associates know that this order oversteps its boundaries and will work with you to overcome such hurdles.

As a firm, we look to county judges across the state and see their similar reactions. Many county judges in Texas are choosing not to follow Governor Abbott’s order to slow down jail releases during this pandemic season. Instead, they are choosing to work with local attorneys to low-level defendants. These judges are deciding to operate under federal laws that allow for certain misdemeanor defendants to be released without collecting bail payment.

What Does This Mean For You?

If you have a loved one currently in jail, then it is very important to hire an experienced attorney with an established reputation and good relationships with local judges.

No one wants to see a loved one stuck in jail, but no one wants this especially during a pandemic. Presently, the risk of contracting COVID-19 in a jail or prison is much higher than the rest of the population. Chambers & Associates works diligently every single day to find avenues to get our clients released from jail as quickly as possible.

If you have a loved one in jail, please reach out and our professionals will walk with you to help you understand the options that your loved one has. We will do everything we can to keep your family members safe, healthy, and free.

Digital Advances in Criminal Defense

Lawyers and the court system are notoriously behind the times when it comes to digital advances. In fact, it was as recently as 2016 that a mandate for e-filing of civil documents went into effect for less populated Texas counties.

The COVID pandemic shutdown brought the criminal justice system to a screeching halt. For many law firms, the severe impact on their operations will have lasting, permanent consequences. It’s been widely reported that thousands of businesses in the Austin area have permanently shuttered.

While we at Chambers & Associates did not predict the pandemic, we were prepared. Long before the pandemic, we made major investments in technology to modernize and revolutionize the practice and management of criminal defense law. These steps provided a foundation for an easy transition to the new world for practicing law. Staying on the digital cutting edge has long been part of our arsenal in how we fight for our clients.

Early adoption of cloud-based case management, utilization of smart data analysis systems, and integration of collaborative team software are some of the most prominent examples. Going digital over the last several years has brought numerous benefits to our clients during these difficult times: 

1) Possibility of a quicker release from jail.

Between having direct access to judges through digital means as well as being an early adopter of digital signature software, we were able to speed the jail release process when others were completely shut out due to the closed jail system. Our systems are widely being used by judges and lawyers today.

2) Potential non-traditional community service options.

Our goal has always been to minimize the time-consuming community service and lengthy counseling programs. Due to COVID, we placed an even higher focus on limiting exposure through alternatives to in-person classes and community service restitution as well as working to resolve cases outside of the traditional courtroom.

3) More availability for conference calls with David Chambers.

Our clients now have a wider range of times available to them for phone meetings with David instead of trekking over to the office during the afternoon for in-person meetings.

4) Remote = more opportunities to safely help our clients around the clock.

Whether it’s texting, videoconferencing, or good old-fashioned calls we put our clients’ needs first while being able to work remotely. Our team never skips a beat when it comes to client and case updates thanks to a secure online “chatter” platform that ensures our whole team is on the same page regarding those vital phone conversations and developments.

5) Increasingly thorough communication with prosecutors.

The increase of socially distant conversation has proved to be beneficial as we have been able to utilize the higher level of control afforded by remote correspondence. These “digital conversations” have given us a better opportunity to explain the flaws in cases as well as the positive traits in our clients, which often results in a better outcome.

We also have been able to minimize the emotional fluctuations of a prosecutor that can sometimes color a conversation. Prosecutors are human and are subject to getting invested in an alleged victim’s perspective.

6) More Defense/Prosecution/Judge case-resolution meetings.

Our lawyers have directed hundreds of cases to resolutions and avoiding costly, risky trial by utilizing attorney/judge only Zoom conferences. These allow a forum where the judge can actually contribute to the negotiations in an effort to resolve cases.

7) And of course, your safety.

We are implementing every strategy possible to keep our clients safe by transitioning to remote meetings and preventing clients from coming into our office or going into court.

Your safety also means your data security. We utilize industry-leading data encryption by HIPPA compliant partners. It is vital to work with a law firm that started utilizing these modern business practices well before the chaos and uncertainty of the pandemic.

What’s on the horizon? 

The Digital Trial

Though we are able to communicate through a number of applications, the evolving question that we’re actively preparing for is: “Will trials go virtual?”

This new question provokes a fascinating thought. Jurors are to remain unbiased, but how will they do that while information is readily available online? How will my lawyer be able to defend me during this time? Experimentations of trials are currently in process. Recently, the state of Texas held the first-ever virtual jury trial via Zoom right here in Travis County.

Since March, courts have had to postpone in-person proceedings. For those that could not be postponed, they have moved to a holding pattern on the virtual trial docket. The concept of a virtual trial is perplexing due to the amount of emotion that is used in making our case. Can jurors pick up on the emotional pleas offered by attorneys and witnesses? How can we read the emotional impact that testimony is having on jurors?

Another challenge with jurors is the vast technology divide amongst age groups. Many jurors are older and may not be technologically advanced enough to connect to a Zoom environment or another application that is being used for a virtual trial. Once connected, can they remain engaged like they would be in person?

As complications arise during this shift to virtuality in the courtroom, we must anticipate and plan in order to get the best results. You don’t want your case to be your lawyer’s learning ground.

Overcoming the Hurdles

Inescapably, the technological complications cause restrictions that must be addressed in the very near term. We have demonstrated that the virtual law firm can be just as productive or more than a traditional office. Our efforts and systems have laid the groundwork for other firms and we look to our friends for insight that they may have gained. It is vitally important to work with a law firm that started utilizing innovative digital business practices before the pandemic took over.

As working remotely becomes the new norm, we are discovering that, if executed properly, the new digital environments can offer opportunities. But one must not overlook or underestimate what is lost when not working collaboratively in person with your team. Working remotely can have a major negative impact on morale over the long term. Employee happiness and engagement is essential for long term results. We are taking measures to support our staff’s mental health and wellbeing as we transition to this new world,

At this time, the firms that have been able to remain open have had no choice but to go digital. For many, this is just the beginning for conforming to the virtual landscape. For a few, we’ve moved on to the next phase of norming and performing.

While COVID-19 is running rampant in jails and wreaking havoc on long-established systems, we are using our relationships with the judges and prosecutors to advocate smart, healthy case resolutions while developing plans and strategies to cope with what is to come.

It is more important than ever to work with a criminal defense attorney who focuses on keeping his clients safe and healthy while achieving the best results possible.

If you or a loved one has been charged with a crime in Austin, Texas, it’s important to hire a criminal defense lawyer that is prepared for anything and ahead of the game.

 

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David Chambers believes everyone deserves a second chance. That’s why he personally works on each defense case our firm handles. Don’t wait—fill out the form below to start your defense now!


Jail Release During the Pandemic

It’s no secret that COVID-19 continues to spread quickly across America, and we don’t see the end in sight. Because of the uncertainty with the number of cases in Texas, mass testing began in May, including many of the jails in Travis County.

If you have a loved one serving time in a Travis County jail, you may be worried and fearful for their health and their life. You are not alone in your concern. The COVID-19 pandemic is tearing through jails and prisons across the country. Inmates are falling ill and dying in disproportionate numbers. As vulnerable members of society, they are still not receiving the testing needed to curb the spread of this deadly virus.

What can you do to protect them? By working with an experienced Travis County criminal defense lawyer, you may be able to get them released from jail during the COVID-19 crisis. But how worried should you be and how bad is the COVID-19 spread among inmates in Travis County?

Dissecting Travis County Jail COVID-19 Numbers

According to the data, the Travis County Jail system only has a handful of positive COVID-19 cases. Is this information correct?

Back in March, we started a conversation about how the Travis County jail system had reported zero cases. We were skeptical of those numbers because no testing was being done. In order to confirm cases, there must be testing. It’s awfully easy to report zero confirmed cases if you rarely test your staff, corrections officers, or inmates. As such, they could proudly declare that there were no Coronavirus cases.

Now, more inmates in Travis County Jails have been tested and to no one’s surprise, more are testing positive for COVID-19. As of June 2020, 333 Travis County inmates had been tested. Of those, 11 tested positive and 44 results are still pending. Three employees in law enforcement, 22 in corrections, and nine in administration also tested positive for COVID-19.

Sadly, only a small portion of inmates, correctional officers, and staff in Travis County jails are actually being tested for COVID-19. So, the real question is, how many inmates and employees who haven’t been tested could have the virus?

COVID-19 Cases Have Spiked in Texas Jails

Without knowing the number of people tested, it’s impossible to truthfully report how many cases of coronavirus there really are. In mid-May mass testing of staff and inmates in Texas jails began so that the state could assess the number of positive cases.

As a whole, the number of COVID-19 cases in the Texas Jail System grew over 38,000% from April to May and that percentage continues to rise.

To date, almost 66,500 inmates and 21,000 employees throughout Texas have been tested. It’s been reported that 6,600 inmates and about 960 staff members have tested positive.

One thing has been clear, inmates and correctional staff are extremely afraid of catching COVID-19. And for good reason. Jail systems in Travis County are designed to house large groups of people as efficiently and affordably as possible. That means they share resources and live in close confinement with each other. There is little possibility of social distancing or quarantining effectively in a jail system. Even healthcare is difficult to come by when an inmate gets sick.

To help facilitate more testing inside the prisons and jails, some states have begun to eliminate medical costs for COVID-19 related testing. Normally, inmates would pay a $2-$5 copay for doctor visits, medications, and testing. In March, Governor Abbott suspended inmate fees for health care services related to COVID-19.

Travis County Jail System

According to a number of defense attorneys, the actual number of testing taking place in the Travis County Jail System is extremely low. So far, testing kits have been hard to obtain. Hospitals, nursing homes, and federal prisons are receiving kits before local jails. This is one reason why actual numbers of COVID-19 cases in Travis County jails are difficult to assess.

Up to 1,600 inmates are housed in the Travis County jail on any given day and only eleven positive cases have been reported.

So far, county officials are praising the precautions that were implemented so early on to prevent the downtown jail and Del Valle correctional complex from becoming hot spots for COVID. Even when being extremely cautious could the Travis County Jail System truly have so few cases? …highly unlikely.

A few defense attorneys pointed out that the actual number of testing that has taken place in the Travis County jail system is quite low. Only 75 inmates have been tested within the facilities, which is only ONE percent of the daily jail population.

Jails VS Prisons Releasing Inmates

There are more than 2.2 million people behind bars across the United States. Inmates housed in jails and prisons face a greater risk of catching an illness, especially the quickly spreading coronavirus. During this time, the best way to protect inmates is to release the ones that may be at higher risk.

Jails generally keep inmates for shorter periods of time and typically house lighter sentenced inmates. Prisons, on the other hand, hold convicted criminals on longer sentences.

A surge in COVID-19 among local jails, such as Travis County, has prompted judges to urge for the release of many inmates. Unlike long-term prisons, jails are ill-equipped to control the virus and provide adequate healthcare for their inmates. This makes jailed inmates some of the most vulnerable to suffering serious and deadly consequences if they contract COVID-19.

Since March 31, more than 37,000 state and federal prisoners have been released to help curb the spread of COVID-19. At least 14,000 local jail inmates have also been released.

What’s Really happening Inside

Reuter’s recently published the account of an inmate placed in a Colorado jail who caught COVID-19. After a parole violation, Peterson, a 78-year-old inmate started showing signs of having the virus on March 11th. By March 30th he was released but on the verge of dying.

According to two inmates, his health declined quickly. Inmates alerted jail staff, but they kept Peterson in the general population. Inside the prison, inmates shared sinks and toilets with Peterson. They shared food and sometimes close quarters because of staffing and security measures. One of the inmates started to also show symptoms of COVID-19 after being exposed to the ill inmate but was never tested.

Peterson was clearly in need of medical assistance, but he was released and died two days later.

Infectious Disease experts classify persons like Peterson as “superspreaders.” By early May, 10 people in the jail’s population tested positive for the virus. However, only 22 tests had been given to the population of 480 inmates. As such, it is likely that far more inmates and correctional officers actually contracted COVID-19 because of Peterson.

Other jails across the U.S. and Texas have fared no better. Inmates have been issued gloves and soap, but no masks. Resources and test kits are low, and jails are not prioritized over other institutions when it comes to obtaining the resources necessary to stop the spread of COVID-19.

Is a Travis County Jail COVID-19 Outbreak Coming?

How long can Travis County continue on without a large outbreak? As businesses continue to open and crowds start to gather, more people are being arrested. These people are being forced into crowded jails among an already vulnerable population. It seems like the question isn’t IF an outbreak is coming- it is WHEN will the outbreak arrive?

Family members are fearful, and we understand that you want to see your loved one safe and healthy. We have been working around the clock to find avenues to get our clients released from jail as quickly as possible. If you have a loved one in jail, please reach out, and we’ll help you understand the options. We will do everything we can to keep your family members safe and free.

Call our 24-hour legal helpline at (512) 474-1404 or fill out our confidential contact form to explore all of your legal options during this scary and difficult time. Our Travis County criminal defense lawyers want to protect your freedom, your future, and your health.