Four Nasty Little Surprises

I recently mentioned that part of being prepared for trial is having “nasty surprises for the State prepared.” For each of the cases I have set for trial, I have an NLS prepared. Often the Nasty Little Surprise (“NLS”) is the cornerstone of the successful defense of a criminal case.

An NLS can be a piece of evidence that I have that the State doesn’t have; it can be a fact that I know that the State doesn’t know; it can be something that the State doesn’t realize it should have done, but hasn’t; or it can even be a bit of law that the State isn’t aware of.

Four examples of NLSes in past cases:

1. In a weed-in-the-car case, the fact that my (testifying) client was a lay preacher whose brother (who owned the car) had been convicted of possession of marijuana.

How you gonna convict a preacher for driving his brother’s car with a roach in the ashtray?

2. In a two-kilo cocaine case, the law requiring the State to corroborate the testimony of the police informant.

This shouldn’t have been an NLS — the two prosecutors (one of whom is now running for DA) had no good reason to be unaware enough of this law. They should at least have been up to speed enough not to object so vociferously to my accurate statement of the law during jury selection. But I’ll take what I can get — the jury convicted my client’s codefendant and acquitted my client.

3. In a murder case, the victim’s mother’s request that the jury put my client on probation.

This isn’t the best example of an NLS for two reasons. First, I’m not sure this was a surprise to the prosecution, but if they knew of it they had a duty under Brady to disclose it. Second, I wasn’t certain before she took the stand that she was going to ask for probation for my client, but I followed my gut and was right. My client got probation.

4. In another weed-in-the-car case, a video recording of the marijuana’s owner confessing to my client that he’d left his dope in my client’s car when he borrowed it.

This NLS I had before setting the case for trial; I didn’t tell the prosecutor because I thought having the surprise sprung on him in trial might be a valuable lesson. At the next appearance a different prosecutor was assigned to the case. I told him that the case needed dismissing, but didn’t tell him about the video until he was signing the motion to dismiss. (Prosecutors, you really should stop taking weed-in-the-car cases. When you’re on intake and the cops call you with one, tell them to dispose of the weed and cut the guy loose unless they have something more than “he was driving the car and the weed was in the ashtray.” Even if you think possession of less than a gram of marijuana should be a crime, these cases waste everyone’s time.)

0 responses to “Four Nasty Little Surprises”

  1. Mark,

    I thought I would do a little research on your comment that it is Brady that the mother of the murder victims wants the defendant to get probation. Didn’t find anything (admittedly curisory research). I did find an interesting one though. The question of whether a prosecutor (who has just learned) has to reveal that a necessary witness is unavailable for trial after a plea has been negotiated, but before taken. Apparently the answer is no.

    But while looking for material, I happened upon the blog… Austin Criminal Lawyer. The discussion was about William F. Buckley’s recent death and a 1996 article he wrote advocating the legalization of drugs. Very interesting. It’s something that many conservatives like myself, have been advocating from an economic standpoint for years at least as to small quantities.

  2. Would you please direct me to a case or code citation for the law mentioned below? I have drug case with an informant and am earnestly seeking an NLS. Thanks.

    “2. In a two-kilo cocaine case, the law requiring the State to corroborate the testimony of the police informant.”

  3. Solicitor:
    Art.38.141. Testimony of Undercover Peace Officer or Special Investigator
    (a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.
    (b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.

    But don’t get your hopes up. Any DA handling a big dope case knows this.

  4. jigmeister, it seems like prosecutors spend a lot of time trying to avoid revealing potential Brady material. The better course would be to reveal it all.

    solicitor, jigmeister’s probably right. It was 2 1/2 years ago that I caught the State with its pants down on Code of Criminal Procedure Article 38.141.

    (Of course, at that time CCP 38.141 was already 3 1/2 years old. So maybe jigmeister and I are giving the prosecutors too much credit.)

    NLS or not, 38.141 is a powerful bit of law — one of the many good things about Texas criminal defense practice.

  5. Your right Mark. The state should provide complete discovery. Most good DA’s do, particularly when the D.Att has a rep for fair dealing. If for no other reason than the appellate issue is gone.

    I advocated, on AHCL’s, that OR’s be put on the HC intranet, minus rape victims, children’s phone numbers (to insure that defendant’s don’t get that stuff). But, being a retired DA, I would love to see reciprical discovery. Won’t hold my breath though.

    BTW solicitor, just about anything will corroborate the informant except another informant, i.e. cop who saw the deal, found the dope, tape, pics, etc., but argue it anyway, the judge may not know the law.

  6. I have to disagree — sorta — with your last paragraph. I don’t care what the judge thinks is corroborative; I care what the jury thinks.

    The only guidance we have on what might and might not be corroborative comes from the cases in which a particular jury found sufficient corroboration. We can’t search Westlaw for cases in which the jury found the corroboration insufficient.

  7. You gotta get it by instructed first, that is a legal sufficiency question for the ct. Then of course you get the instruction. If you compare 38.14 and 38.141 they are the same. That will give you an idea of how to research the question of corroberation sufficiency. How many times have you heard the state argue, “Any evidence tending to show the witness is truthful”.

    Judge Shaver once threw out one of my cases (actually before the law–but based on his belief that the law should require corroberation of informants) when all I had was a very bad body mike recording. I wouldn’t even file that case today.

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