The Campaign For DA

9.23.2011

Flashback. An Update. And Some (Boring?) Legal Stuff.

I wrote about a lady getting 35 years in prison for dope in 2009 from a Wise County jury.

In an opinion released late last night, the Fort Worth Court of Appeals said "not so fast."

But speaking as someone who knows criminal law, the court's opinion is surprising considering the court's conservative reputation. If I'm reading it right, the trooper detained the lady after a traffic stop (which would normally have been concluded) because he believed he had a reasonable suspicion that some criminal activity was afoot. If there was no reasonable suspicion, he would have to let her go. The critical factor (in addition to her being very nervous) was that he asked her is she had ever been in "any trouble for anything" and she said no. He went and ran her criminal history and found she had been arrested.  Believing that she had lied was critical in order for him to be able to legally detain her (and call for a drug dog). The mere past arrest wouldn't have legally justified the continued detention. On the video of their interaction, the lady told the trooper she hadn't understood the question. But he thinks she lied about her history, continued the detention, called for the dog, and dope was eventually found.

The trial judge found the continued detention to be legal and the court of appeals said there was sufficient evidence to justify his conclusion.  That's really no surprise.

So why is the case being sent back for another trial? The defense lawyer asked that the jury be instructed that they were to disregard the existence of the dope found by the cops if they believed that the lady had been detained illegally.  The only time the jury is to get that instruction is if there is disputed evidence regarding whether the cops acted legally. (For example, the cop says he stopped someone for running a stop sign and the defendant says he didn't. The jury decides who is telling the truth and if they think the officer is lying, they have to ignore any evidence the cop found after the fact. It's really a mechanism for the jury to disagree with the trial judge about the facts that lead to the detention.)  In this case, the court said there was a factual dispute as to whether the officer was reasonable in coming to the conclusion that she was lying about her history. Should he have instead concluded that his question was pretty vague and she could have misunderstood? The appellate court said the jury should have been asked and instructed that they were to disregard the dope if they found him to be unreasonable in coming to his conclusion. They aren't saying the jury would have disagreed with the trooper, they are just saying the lady deserved the chance to have the jury answer that question.

This case may go further up the appellate chain. I think the big issue is whether there is a factual dispute about whether the officer was reasonable in thinking she was lying. I've got to think about this some more.

But the lesson for the State is something the most conservative DA in Texas always preaches: If there is any possible basis for a jury instruction requested by the defense, tell the judge you don't have a problem with it. (And good job by the defense lawyer in asking that the jury get the instruction in this case. If he hadn't asked, the conviction would have been affirmed.)