This month there have been two interesting decisions concerning important situations that are not uncommon in large jurisdictions. While these February 2014 decisions are out of Texarkana and San Antonio, subsequent case law will probably be developed in appeals decided by the Dallas and Fort Worth Courts of Appeals, among others. The jurisdiction of the Dallas Court includes Dallas and Collin Counties. The Jurisdiction of the Fort Worth Court of Appeals includes cases from Tarrant and Denton Counties. Considering the importance of the issues, the losing party in the Court of Appeals will probably seek discretionary review in the Texas Court of Criminal Appeals in Austin, which has statewide authority to take further review, although not required.
THE FIRST CASE HELD THAT CORROBORATED RECORDED STATEMENTS ARE INADMISSIBLE DESPITE A TEXAS LAW PROVIDING AN EXCEPTION.
Texas has a law that requires more warnings and other procedures to be provided to a person under a custodial interrogation than the basic "Miranda rights" required by the United States Supreme Court. One portion of the Texas law requires that no verbal statements can be used in court unless there was an audio-video recording.
There is an exception to the recording requirement if the statements were shown to be true. The law provides two specific "such as" examples: the police find stolen property or a weapon that the defendant says was used to commit the offense.
The Sixth Court of Appeals clarified that the exception for stolen property being found does not apply when the defendant was not advised about his rights. While the Texarkana Court agreed that the section of the law providing the exception could be read to allow unrecorded statements to be used in court when they were properly corroborated, the Court held that the law would be unconstitutional when read to provide an exception to the Miranda warnings requirement.
IN THE SECOND CASE, THE SAN ANTONIO COURT OF APPEALS BROADENED THE REMEDY WHEN THE DEFENDANT IS POORLY ADVISED TO REJECT THE PLEA OFFER
As I have previously discussed, the case law has developed to support claims of ineffective assistance of counsel when a lawyer advises a defendant to reject a plea bargain offer. The traditional ineffective assistance arguments concerning plea offers focus on claims that the lawyer should not have told the defendant to take the offer. In both situations, the appeals court has to ultimately decide what to do about it.
When the plea offer should not have been accepted, the remedy is easy: send the case back to start over, since the plea that the defendant made in connection with accepting the offer was invalid. The case has to start over, since the defendant would not have pleaded guilty if the lawyer had not rendered substandard conduct.
As the case law has generally developed, the appropriate remedy has to be different when the lawyer should have counseled the defendant to accept the plea offer. The normally appropriate remedy is to grant "specific performance" of the offer, meaning that the defendant would be deemed to have accepted the offer.
The San Antonio Court has now essentially held that the remedy with respect to defendant's case should be the same regardless of whether the defendant was poorly counseled to accept or reject the offer. The remedy has to be tailored to the specific harm. In this case, the defendant should be returned to the same position he was in before he entered his plea, regardless of whether it was guilty or not guilty. Thus, a defendant who was misadvised to reject the offer might still go to trial, or at least have renewed bargaining leverage, even though the basis for the appeal was that he should not have been told to reject the offer.