Facebook Photo Causes Mistrial

by Rick Wetzel on September 26, 2012

The Miami Herald reports on a mistrial which came about as a result of attorney misconduct.  As a Texas criminal appeals lawyer and Texas habeas corpus lawyer, I am generally on the lookout for instances of prosecutorial misconduct.  Sometimes the misconduct can come from the defendant’s own lawyer.

The Back Story

The defendant’s family brought him a bag of fresh clothes to wear during his murder trial.  When corrections officers lifted up the pieces for a routine inspection, defense counsel snapped a photo of her client’s leopard-print briefs with her cellphone.  While on a break from trial, defense counsel posted the photo on her personal Facebook page with a caption suggesting the client’s family believed the underwear was proper attire for trial.  It was also discovered she had earlier posted a message on her Facebook page calling into question her client’s claim of innocence.  The judge soon learned of the posts and declared a mistrial.

Social Media and Fair Trials

Problems with social media conflicting with the Sixth Amendment right to a fair trial usually involve juror misconduct.  Judges across the country now routinely warn jurors about using the Internet, Facebook and Twitter during trials.

Criminal appeals have been successful in a number of cases due to misconduct involving the use of social medial by jurors.  In 2011, the Arkansas Supreme Court threw out a man’s murder conviction and death sentence because one juror repeatedly tweeted during the trial.  In 2010, an appeals court threw out a manslaughter conviction of a Palm Beach County man after a juror used an iPhone to look up the definition of “prudent.”  In 2007, a criminal appeals court in West Virginia reversed a conviction for sexual abuse of two teenage girls because members of the jury had looked up the MySpace profile of one of the alleged victims and shared its contents with other jurors.

Lessons Learned

The leopard-print brief posting public defender was rightfully fired from her job and her former boss said: “When a lawyer broadcasts disparaging and humiliating words and pictures, it undermines the basic client relationship and it gives the appearance that he is not receiving a fair trial.”  A law professor noted that “In today’s digital age, attorneys must recognize that their social media posts, even if meant to be private, can be damaging to their career.”  Clearly, such misguided antics can also be damaging to the client and provide fertile grounds for relief in Texas criminal appeals or Texas habeas corpus proceedings.


No Thin Mints? No Lawyer

by Rick Wetzel on August 31, 2012

The Brownsville Herald reports the attorney for a Brownsville, Texas, man charged with sexual assault of a child has filed a motion seeking removal of the presiding judge in the case because she has a bias against the lawyer.  Aroldo Cadriel is accused of aggravated sexual assault of a child and indecency with a child.

Not the Judge for Me

A person charged with a crime is not allowed to pick the judge assigned to his or her case.   However, sometimes a particular judge should not preside over a particular case.  If a judge will not voluntarily step aside, the defendant may seek the judge’s removal or recusal for a variety of reasons.  Judges should recuse themselves from a case if the judge’s impartiality might reasonable be questioned.  Likewise, a judge should not sit in a case if the judge has a personal bias or prejudice concerning the subject matter or a party.

Shout Out

A recusal motion filed by Cadriel’s attorney, Nat Perez, accuses District Judge Elia Lopez of bias against him as well as against defendants who are accused of criminal offenses against children. The motion by Perez cites three cases where he says Lopez removed him from acting as the appointed defense attorney for indigent clients facing criminal charges.

The motion states that in spring 2011, Lopez directed Perez, in person when she saw him at the county courthouse, to speak with her court coordinator. When Perez spoke with the coordinator, he was told Lopez wanted him to buy cookies from the troop that both of their daughters belong to.  Perez declined to purchase the cookies as directed.  Perez further claims: “This conduct is an open, blatant and obvious indication of Judge Lopez’s animosity, dislike and disdain for counsel and her desire to not have counsel practice in her court before her, possibly exacerbated by counsel’s refusal to purchase a case of Girl Scout cookies from her daughter’s troop.”


Another judge will rule on the motion to recuse Judge Lopez from the Cadriel trial.  If Judge Lopez is allowed to preside over the trial and Cadriel convicted, he can complain of her presence in a criminal appeal or habeas corpus application to a Texas criminal appeals court.


Lawyer Goes to Jail Rather Than to Trial

June 15, 2012

I once worked on a case in which the prosecutor approached a defendant during trial and said: “You’re drowning and your lifeguard doesn’t know how to swim.”  That incident resulted in a reversal of the conviction on criminal appeal.  Had the criminal appeal not be successful, it would have been a strong ground on habeas [...]

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A Criminal Judge

April 5, 2012

As a Texas criminal appeals lawyer and habeas corpus lawyer, I always enjoy stories which fall into the “truth can be stranger than fiction” category.  A recent story from the Associated Press is a good example. “Let’s take a 10 minute recess.” A Knoxville, Tennessee, judge was so addicted to prescription drugs during his final [...]

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NO DA Busted for Brady Violation

January 13, 2012

For the second time in two years, the Supreme Court considered the issue of prosecutorial misconduct involving the New Orleans District Attorney’s Office.  This week, in Smith v. Cain, the Court overturned Juan Smith’s five murder convictions because the prosecutor cheated before trial. The facts Smith was charged with killing five people during an armed [...]

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Criminal Appellate Law Certification

January 3, 2012

Last year the Texas Board of Legal Specialization recognized a new board specialization in criminal appellate law.  The Board recently notified me that I am in the first group of Texas attorneys to be board certified in criminal appellate law.  The practice of criminal appellate law includes: appeals in state and federal courts; original filings [...]

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Mistrial Declared Following Juror’s Suicide Threat

November 23, 2011

The San Antonio Express-News reports a jury hearing a murder case against a San Antonio mother accused of killing her 2-year-old daughter sent three notes to the judge yesterday.  All of the notes indicated that the jury was hung, 11-1.  It wasn’t clear from the first two notes whether the majority wanted to acquit, convict [...]

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How do you know that?

October 7, 2011

Thanks to a tip from burglars, a central California man has been arrested for possession of child pornography.  Two burglars broke into Kraig Stockard’s barn in Merced County and stole 50 CDs they thought were blank.  After placing the CDs in a computer the burglars discovered some of them contained images of child pornography. Even [...]

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Lawyers Fired for Fussing

September 16, 2011

As a criminal appeals and habeas corpus lawyer, I am always interested in unusual courtroom occurrences.  One such situation recently occurred in Fredericksburg, Virginia.  In an extremely rare judicial move, a Virginia Circuit judge removed both the prosecutor and defense attorney from a child abuse case in which the accused is a former sheriff’s deputy.  [...]

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Don’t I know you?

September 5, 2011

The Chicago Tribune reports a mistrial was declared last week in a federal sex-trafficking case because a prosecution witness told authorities that the defense attorney was once one of her massage clients. The witness, a masseuse, told prosecutors that she believed she knew the defense attorney. As it turns out, the defense lawyer had been [...]

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