spring 2017
with liberty
and justice
for all
LETTER FROM THE
2
CLE EVENTS
EDITOR
THE DEFENDER / WINTER 2016
HAPPY HOURS
LAST WEDNESDAY OF EACH MONTH
1.5 CLE / 5-7PM
FREE TO HCCLA MEMBERS
Birraporetti’s
500 Louisiana Street / Houston, Texas 77002
FREE APPETIZERS/CASH BAR @ 5:00 PM
CLE STARTS AT 5:30PM
Ch-ch-ch-ch-changes...
turn and face the strange
ANY QUESTIONS? David Bowie
Visit the calendar at www.hccla.org New year, new district attorney in office, new judges on benches,
but we still have the same old fight down at the Criminal Justice
Center. As the new editor of The Defender, I hope to bring you
articles that will be helpful to your criminal defense practice as
well as those that will make you laugh, reflect, and ponder how
you can be a better, happier, less-stressed, less-overworked,
and successful defense lawyer.
save a change in my own way and also give back to the organization
that I love dearly – HCCLA. Being a member of this group has
the
done so much for me, and I am honored to be a part of it. I have
made some incredible friends and met some incredible people,
some of whom have written for this issue and will be writers of
date
articles to be published in future issues.
join us for the column in the magazine and on the HCCLA blog – War Stories.
These columns are akin to the chats we have with each other
47 TH ANNUAL BANQUET about the memorable clients, cases, and encounters that only
HOTEL ZAZA So have a seat, grab a beverage, and enjoy the latest issue of
The Defender! And if you want to contribute, reach out and let
5701 MAIN ST me know. I am glad to have as many writers and cover as many
topics as members want to read in each quarterly issue.
Many thanks,
Lori Botello
WHAT’S INSIDE WINTER 2016
CLE EVENTS
LETTER FROM THE EDITOR 2
4 OFFICERS, BOARD OF DIRECTOR
PAST PRESIDENTS
8
HCCLA NEWS ROUND UP
WELCOME NEW MEMBERS / 8
HOLIDAY PARTY PHOTOS / 9
HCCLA ETHICS
DON’T ACT UGLY
BY ROBERT PELTON 14
17
A NEW MODEL OF JURY TRIAL
PART 1- INTRODUCING THE NEW MODEL
BY MARK BENNETT
WAR STORIES
THE REAL HUMAN COST OF
THE WAR ON DRUGS
BY VIK VIJ
32
4 C. ANTHONY FRILOUX
GEORGE LUQUETTE
PUBLISHER
HCCLA MARVIN O. TEAGUE
DICK DEGUERIN
EDITOR
LORI BOTELLO W.B. HOUSE, JR.
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Hccla officers & board GEORGE J. PARNHAM
GARLAND D. MCINNIS
ROBERT A. MOEN
PRESIDENT EXECUTIVE DIRECTOR LLOYD OLIVER
TYLER FLOOD CHRISTINA APPELT DANNY EASTERLING
WAYNE HILL
PRESIDENT ELECT BOARD OF DIRECTORS RICHARD FRANKOFF
TUCKER GRAVES DAVID ADLER
W. TROY MCKINNEY
STACI BIGGAR
CYNTHIA HENLEY
VICE-PRESIDENT LORI BOTELLO
STANLEY G. SCHNEIDER
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PAST PRESIDENT JASON LUONG CHRISTOPHER L. TRITICO
ROBERT PELTON DAMON PARRISH II T.B. TODD DUPONT, II
JED SILVERMAN
CARMEN M. ROE
MARK THIESSEN
JOANNE MUSICK
J. JULIO VELA
SARAH WOOD
5
I make mistakes. We all do. Making mistakes is the Not long ago HCCLA was comprised of only around
best way to learn and gain wisdom. The problem is that 200 lawyers. Today, we are pushing 800 members.
some people don’t own their mistakes. I’m not talking HCCLA is powerful and we have taken action that
about firmly believing in an opposing or unpopular has caused good changes to occur, and we will continue
idea and standing behind your decision. As Lawyers, to do so. HCCLA has come a long way.
we are taught to own our decisions, right or wrong, and
we do a pretty good job of that. Today, when the media catches wind of breaking news
in the criminal justice system, they call HCCLA first.
I’m talking about realizing when that decision you When our DA Administration needs to get a message
owned turns out to be obviously wrong. That’s when it out to the defense bar, they contact HCCLA. When
comes time to own it, admit you messed up, and then important governmental committees carry on business,
take steps to make it right. An apology is always a good HCCLA is asked to sit at the table and be an active
start, and then it’s time to deal with fixing the mistake voice in the conversation. When HCCLA hosts its
head on. The benefits are huge. Aside from the mental annual banquet (at Hotel ZaZa this year), everybody
repair it provides, it removes one more un-needed who is anybody will attend: judges, prosecutors,
stressor in your life. I recently practiced this with two defense attorneys, and many other important friends
big mistakes I felt I made: one personal and one with an and professionals in our community. (Sign up now…
HCCLA membership issue. It felt so good to fix them hint hint!).
and move on with life and let them go. My life is better
for it, and HCCLA is stronger.
Harris County Criminal Lawyers Association
As your President this past year, I’ve been entrusted is YOUR organization, and we represent and
with heading up the largest local criminal defense fight for ALL the criminal defense lawyers in
organization in the United States, and so far we’ve had
a good year. Do we always make everybody happy with Harris County.
the actions we take? No. Our job sometimes is to be
the watchdog of the justice system. We are an activist
organization: we take action to right the wrongs we
see happening. We also come to the aid of any of our
members when they need help.
6
THE DEFENDER / WINTER 2016
he Winter of Our Discontent Joe Ray Rodriguez left ADAs literally slamming their
fists on the table as D walked on AADW in Galveston.
saw membership rise above in CW was told to leave D’s property and began punching
D, who used a knife to defend himself. The jury was out
some very big ways… less than an hour, including lunch.
•••••••••••••••••••••••••••••••••••••••• ••••••••••••••••••••••••••••••••••••••••
Alex Houthuijzen tried his first case in CCCL1, and Randy Schaffer clearly showed an ADA from HCDAO
came away with a Not Guilty on assault. made promises to a witness and hid it from the defense.
•••••••••••••••••••••••••••••••••••••••• DC434 recommended a new trial.
Eric Davis and Frances Bourliot had the difficult case ••••••••••••••••••••••••••••••••••••••••
of defending a mentally ill mother in a child murder. Natalie Schultz and Pat McCann got a recommendation
After tireless work, the jury returned NGRI. for relief in DC228 where HCDAO was found – again –
•••••••••••••••••••••••••••••••••••••••• to have a deal with a snitch but did not disclose it to trial
Donlee Smith got the 2 word verdict in Chambers counsel. Let’s hope the new HCDAO puts an end to these
County on DWI 2nd. D was parked on the side of the ingrained, unconstitutional practices!
road with an open container, but the jury did not buy that ••••••••••••••••••••••••••••••••••••••••
was operating. Justin Harris scored a 20 minute NG in CCCL2 on .15
•••••••••••••••••••••••••••••••••••••••• DWI. D found asleep at stoplight with open container
Miranda Meador and Te’iva Bell fought the State’s and stocked cooler in backseat. D almost fell during
attempts to intimidate witnesses in an agg robbery, and SFSTs, but Justin showed how the tests were flawed and
convinced the jury in 30 minutes to find NG in DC230. improperly administered.
•••••••••••••••••••••••••••••••••••••••• ••••••••••••••••••••••••••••••••••••••••
Carmen Roe got CCA to rule an adult certification An emotional D let tears flow as Franklin Bynum
improper, arguing the State failed to exercise due convinced HCDAO to dismiss animal cruelty charges
diligence. Carmen and Paul Doyle followed up with a mid-trial in CCCL8.
reversal in COA14 on agg kidnapping for un-objected ••••••••••••••••••••••••••••••••••••••••
jury charge error. Make your appellate lawyers happy by When is a win not an acquittal? When a MoCo jury gives
making these objections! probation to Dustin Neyland’s D after convicting for
•••••••••••••••••••••••••••••••••••••••• online solicitation in DC9.
The State indicted murder but went to trial on agg ••••••••••••••••••••••••••••••••••••••••
assault in DC182. It didn’t matter what they charged, Tyler Flood keeps piling up the wins. NG in CCCL8 on
Wendy Baker and Mark Thering walked D by showing .18 DWI/accident
witnesses were not credible. ••••••••••••••••••••••••••••••••••••••••
•••••••••••••••••••••••••••••••••••••••• D had denied any contact with CW, let alone knocking
Kyle Sampson got a NG on AADW in DC338. out CW’s teeth, right up to taking the stand and asserting
•••••••••••••••••••••••••••••••••••••••• self-defense. After denying a jury charge on apparent
Mistrial in DC184 on CSA for Jed Silverman, danger, a stunned CCCL1 heard NG on assault for Josh
Neal Davis, and Trinidad Zamora. Jed had to cross Hill and Wayne Hill.
examine teddy bear hugging 10 year old CW, Trinidad ••••••••••••••••••••••••••••••••••••••••
found CW’s inappropriate social media, and Neal got Damon Parrish heard the sweetest 2 words in the
CAC to admit advocating for the State. Tough work! courthouse, and more talk about male anatomy than a
•••••••••••••••••••••••••••••••••••••••• frat house beer blast, in CCCL8. Vice tried to make a
Julio Vela got a mistrial in MoCo on DWI, after the prostitution case, but charged D with indecent exposure
Listserv got him some in trial help on an erroneously because D would talk about “d” but not money.
admitted blood draw. JV followed up with NG in
CCCL16 on AFV.
7
WELCOME
NEW HCCLA
MEMBERS
new members
Chad Bernaeyge
Inger Chandler
Belinda Ertel
Ben Friedman
Nathan Hennigan
Hunter A. Hoaglund
Andreea Ionescu
Taly Jacobs
Jisha C. Jaganathan
Truc Le
Mark A Montgomery
Michael Cody Moore
Tolu Omodele Nelms
Krishna S. Ougrah
Aaron William Perry
Dulce N. Toledo
10
Remembering
11
I don’t think you ever knew my name, but I was going to be your wife.
Our relationship was unusual, to say the least. I was a young(ish) law student,
hurrying from the parking garage I could barely afford into my hellacious
unpaid internship at the Harris County District Attorney’s Office.
You were a mid-50’s shade-tree M&M salesman on the street corner
outside the Harris County Criminal Courthouse.
“ILOVEYAILOVEYAILOVEYAILOVEYA!
HAPPY WED-NS-DAY!
As I got closer to you, you would spot me and point with an There is nothing more worthy in this world, dear friend, than
umbrella. to ease the suffering of our fellow human beings. Even if that
decrease in suffering is only as much as a bag of M&M’s
“WILL
HEY THERE, BEAUTIFUL!
YOU MARRRRRRRY ME???”
and a kind word might purchase. You did not care who it
was, what they had done, or even how many times they had
walked by you, dismissively, without acknowledging that
you were there. Your love was selfless and complete and
I always accepted. ferocious. You shouted your great love with your whole body
all day every day (or at least 9 am to 2 pm, Monday through
“THE
I’M THE HAPPIEST MAN IN Friday). I have never met another person so charismatic, or a
CONTINUED : REMEMBERING RICK JOHNSON
ALLISON
Allison Jackson is an attorney who represents
indigent people accused of crimes in Fort
Bend County, Texas. She is also a book
MATHIS
snob, a wine equal-opportunist, a good cook
and a bad singer. She collects teapots, witty
intellectuals, and mugshots of famous people.
13
But oh, dear, sweet Rick, I hope you knew that the silence
outside the courthouse will echo for all of us in these coming
days. I hope you knew how grateful I was to have shared
a moment with your bright spirit, to have been in the same
space at the same time out of all of the spaces and all of the
times that have been and could be. I hope you knew that I am
richer for having known you, and that I will miss you. That
we will all miss you. That the neighborhood will never be
the same.
DON'T
THE DEFENDER / WINTER 2016
ACT
and was upbeat and would tell all the
accused citizens standing in line to get in the
building, "Don’t Worry-Be Happy," or "I Love
You" to all the women, lawyers, and citizens.
He was like a street preacher trying to spread
some cheer around a depressing building.
Saundra is a homeless person who stays
UGLY!
around the courthouse, and many lawyers
help her. There were some dirty politics in
several elections in Harris County, which
resulted in a new district attorney, sheriff, and
several judges. Saundra would hear all the
gossip, and when I would see her and spend
a few minutes talking with her, she would say
"God does not like it when people act ugly."
She was talking about what she was hearing
BY ROBERT PELTON from families and lawyers alike about other
lawyers who were hiding evidence, lying,
and slinging mud – in general, acting ugly.
Acting ugly was resulting in accusations that
lawyers were giving special deals to rich
people while the poor people were pleading
guilty just to get out of jail because they had
no money to get out on bond. Acting ugly
was hiding evidence from defense lawyers.
Local defense attorney Randy Schaffer and
a few other lawyers got new trials for people
who had been convicted. Some of these
cases showed that prosecutors lied and
withheld exculpatory evidence or evidence
that might have resulted in a not guilty
verdict. Lawyers are bound by their oath
and the rules of ethics by the State Bar. The
Ethics Hotline has received many calls from
lawyers and citizens about the conduct of
prosecutors and of their own lawyers.
HCCLA ETHICS 15
6. knowingly assist a judge or judicial officer in false, deceptive, or misleading, makes unsubstantiated
conduct that is a violation of applicable rules of comparisons to another lawyer's services, or proposes
judicial conduct or other law; means contrary to rules of professional conduct, the
attorney can be charged with misconduct. For example,
7. violate any disciplinary or disability order
an attorney was disbarred in Maryland for publishing
or judgment;
misleading advertisements soliciting customers for
8. engage in conduct that constitutes barratry "quickie" foreign divorces and misrepresenting his
as defined by the law of this state; competence and knowledge of the law (Attorney
9. fail to comply with Article X, section 32 of the Grievance Committee v. McCloskey, 306 Md. 677, 511
State Bar Rules; A.2d 56 [198]
10. engage in the practice of law when Jim Skelton has read the rules and offered the following
the lawyer's right to practice has been suspended as an aid in understanding the rules:
or terminated; I read Rules 1.05, 8.03, and 8.04 and think that Rule 8.03 is
11. violate any other laws of this state relating to pretty clear – a lawyer has the obligation to report another
the professional conduct of lawyers and to the lawyer to the State Bar who commits a 8.04 violation that
practice of law. raises a substantial question as to that lawyer's honesty,
trustworthiness or fitness as a lawyer. There are two
(b) As used in subsection (a)(2) of this Rule, "serious exceptions: (1) if the lawyer had an addiction problem,
crime" means any felony involving moral turpitude, the reporting lawyer has the option of reporting this to
any misdemeanor involving theft, embezzlement, or an approved peer assistance program as opposed to
fraudulent misappropriation of money or other property, reporting it to the State Bar; and (2) if the lawyer learns
or any attempt, conspiracy, or solicitation of another to the information from an attorney client agreement so long
commit any of the foregoing. as the information does not involve an ongoing crime or
a future crime.
The hook in the rule is determining what is a “substantial
question.” My guess is that there is no specific standard;
Joseph Connors, Ethics Committee member, has helped that it is resolved on a case-by-case basis. The best rule
me write and research for this article as has Michael of thumb is the advice Saundra has been giving out all
Mowla. This is an example of what has happened in along: don’t act ugly, and if you see someone else acting
other places: ugly, think about your obligation to report it.
Beginning in the late 1980s, attorneys have been
required to report the misconduct of other lawyers that
he becomes aware of. Failure to do so is considered Special thanks to:
to be misconduct in itself and can result in serious Joseph Connors
disciplinary measures. A 1989 Illinois Supreme Court Michael Mowla
ruling, In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790, Chuck Lanehart
found that attorneys have a duty to report other lawyers'
Jim Skelton
misconduct even when a client has instructed them not
to do so.
The Illinois Supreme Court suspended James H.
Himmel from the practice of law for one year after he
failed to report a misappropriation of client funds by
CONTINUED : DON’T ACT UGLY!
A New Model
WHAT IF everything you thought you knew about how These are models. The test of a model is its usefulness.
juries decided cases were wrong? What if everything you The Bayesian Model of juror decision making is
had been taught to do to win a jury trial were founded in more useful than the Classical Model because it more
a false premise, a flawed notion of how people — and accurately predicts the behavior we see jurors engage in.
juries as groups of people — made decisions?
I offer four facts in support.
What if jurors routinely — as a matter of course, in
virtually every case — disregarded their jury instructions
without even realizing they were doing so? What if these CONSCIOUSNESS LAGS DECISION MAKING
instructions were so contrary to human nature that they
were practically impossible for jurors to follow? First, brain scientists have found that our brains make
decisions some time before we are conscious of having
If all of that were true, you would want to take it into made them. In one experiment, by looking at an fMRI
account in how you tried cases, wouldn’t you? image, researchers found that they could determine
You would want to change your approach to account whether a subject was going to push a button with his left
for how jurors actually make decisions rather than your hand or right hand seven seconds before the subject was
flawed notion of how they do so. aware of making the decision.
We instruct jurors to listen to the evidence and consider If the consciousness of the decision to push one button
all of it before reaching a decision. This is a feat so or the other can lag seven seconds behind the decision,
contrary to human nature that the juror able to follow it how far behind the decision to acquit or convict your
would be a rare exception. client might a juror’s consciousness of that decision lag?
Might a juror’s unconscious mind decide early in trial to
The Classical Model of juror decision making — a acquit your client, and only make that decision known to
rational decision taking into account all of the evidence the juror’s conscious mind after the conscious mind has
— does not accurately reflect what happens in the dutifully sat through the trial?
courtroom. An alternative model — I call it the Bayesian
Model — is one in which, instead of listening to all of the This neuroscience research supports the Bayesian Model
testimony before making a decision, each juror reaches rather than the Classical Model — if people made
a decision early in the trial and then filters all of the decisions rationally, they would be conscious of the
evidence through this decision. decision as it was reached.
18
CONTINUED ::
THE DEFENDER / WINTER 2016
argument.
on which jurors made their decisions prominent in their
If jurors are humans who exhibit confirmation bias, minds; the Bayesian Model explains why these jurors
then they might filter the evidence that they hear at trial might falter when asked what, specifically their decision
through that bias, discounting proof that does not support was based upon.
their already-reached conclusions and highlighting proof
that does support it.
If jurors are humans who exhibit belief bias, then HOW EARLY?
they might pass your argument (and even the court’s If jurors’ (and by extension juries’) decision making
instructions) through that filter, finding arguments less follows the Bayesian Model rather than the Classical
persuasive because they have already rejected them. Model, it raises many questions. Among them:
These, and many other cognitive biases (familiarize Why do you call it the Bayesian Model?
yourself with Wikipedia’s lengthy list, https://
en.wikipedia.org/wiki/List_of_cognitive_biases) are not At what point do jurors reach their belief in whether the
accounted for by the Classical Model, but make perfect State is able to prove its case against the defendant?
sense under the Bayesian Model. What happens throughout the rest of the trial?
What happens in jury deliberations? Why do they take so
WEIRD VERDICTS long, and why do jurors sometimes change their minds?
Third, we have all seen verdicts on evidence that seems How does the trial lawyer take advantage of this
to us clearly factually insufficient. This can, of course, knowledge to get better verdicts for her clients?
be accounted for by our own cognitive biases (we should
account for the bias blind spot, the tendency to see
ourselves as less biased than others), but perhaps our I plan to address these questions, and more, in future
training and experience allow us to be more objective installments of this series. If you have any additional
about the proof against our clients. In most cases we can questions or comments, drop me an email.
see how the trial could have gone either way, and those
cases in which we simply cannot comprehend the jury’s
verdict are a small minority of all the cases we try.
Irrational verdicts are, by definition, not explained by the
Classical Model. They are, however, explained by the
Bayesian Model of juror decision making.
mark bennett
Mark Bennett is an improviser, writer, and
hypnotist who dabbles in lawyering, with a
focus on criminal law (he’s Board Certified
in that), appeals, and free speech.
19
Go from
Do’s
Do bring your
own equipment.
Do choose your font,
font size, font color, and
Do use multimedia
to enhance your
Verify that the computer used animations carefully presentation rather than
for the presentation has the and BE CONSISTENT. be your presentation.
correct version of whatever My personal preference is white If you find yourself shrinking
software it is on which you have Century Gothic font on a black your font to fit the information
created your presentation or background, and never smaller onto one slide, you should stop
bring your own device. Bring your than 26-point font. Depending and ask yourself whether you
own computer too. It is easier to on the screen size and distance, are writing a script or using the
make changes or adjustments if it is important to ensure that the slide to emphasize a particular
you have your own device ready font is legible from the distance point or piece of evidence. Do
when you need it. the jury will be reading it. Your you want the jury reading the
Do figure out what you’re font and animations should be slide or listening to what you
CONTINUED : GO FROM POWERPOINT DUD TO STUD
““
case. The most effective presentations use simple techniques to
captivate your jurors’ attention.
the
Static Photos and Text Effects learning
Simple text on a template can become repetitive and boring.
Creating a sign post or adding interest with a photo can be a curve
visual break that captures (or re-captures) the jurors’ interest
in the middle of an otherwise monotonous presentation. Photo
might be
licensing companies like Fotolia.com or Shutterstock.com are
excellent resources for thousands of images that might better
rather
represent your point than simple text. Adding text effects on top
of the image creates emphasis and interest. Follow the steps
steep...
below to go from dud to stud. Contrast these two slides: however,
Dud… [it is] a
hill worth
climbing
CONTINUED : GO FROM POWERPOINT DUD TO STUD
Stud…
23
Cropping Photos and Using Shapes and Animations to
kate
CONTINUED : GO FROM POWERPOINT DUD TO STUD
shipman
bihm
Kate Shipman Bihm has been practicing
criminal defense since 2007 when she left
the Montgomery County District Attorney’s
Office to hang out a shingle in Conroe,
Texas. Since then, The Bihm Firm, PLLC
has grown to include family law clients.
Her recent run for the 9th District Court
would have been impossible without
the support and encouragement of her
colleagues in the defense bar. Her office
mascots, Carmelo (a Chihuahua) and
Lucy (a Schnauzer) love visitors and are
available for cuddles between dockets.
25
CELL-SITE SIMULATORS
I. What is a cell-site simulator and how is it used? Rigmaiden obtained his first lead after seeing an FBI document
mentioning a “Wireless Intercept and Tracking Team” within the
Daniel Rigmaiden and the discovery of the Stingray ii,iii,iv FBI’s Digital Collection System Network, a unit responsible for
While in hiding, Daniel Rigmaiden directed a scheme to obtain targeting cell phones. Rigmaiden connected what he found in
fraudulent tax returns from deceased individuals from his the FBI document to records from a Florida police department
laptop. Rigmaiden took extreme measures to conceal himself seeking permission to buy surveillance equipment. Rigmaiden
– he created fake identities, anonymized his web browsing, could now place a name to the boogeyman of his conspiracy
communicated by encrypted email, and generally lived off theory – a device called a cell-site simulator branded “Stingray”
the grid. In 2008, despite all these measures, Rigmaiden was and manufactured by the Harris Corporation. After numerous
caught by a federal task force. Rigmaiden became obsessed with and repeated requests for disclosure, the government finally
figuring out how the government found him. conceded that a Stingray had been used in Rigmaiden’s case.
The government’s secret weapon was no longer secret.
Outside of cautious forays into town to collect the proceeds of his
conspiracy, Rigmaiden had a single obvious link to the outside How does a Cell-Site Simulator work?v,vi,vii,viii,ix,x
world: the Aircard on his laptop. Convinced that the Aircard was
his vulnerability, Rigmaiden believed the government used some Cell-site simulators come in many forms and varieties and are
sort of secret technology to locate him using the Aircard. None known by many names (see Glossary for some of the names
of Rigmaiden’s lawyers were willing to entertain Rigmaiden’s of and terms used for cell-site simulators), but they are most
conspiracy theory that the government was beaming rays into frequently called Stingrays or IMSI catchers. Essentially, a
Rigmaiden’s home in order to track the Aircard. Frustrated with cell-site simulator masquerades as a cell tower (see Glossary
his lawyers, Rigmaiden proceeded pro se. Assisted by a court- for some of the terms for cell towers). However, the purposes
appointed paralegal, Rigmaiden directed a deep and painstaking of a cell tower and cell-site simulator are wildly different – a
Google-search-by-postal-mail for anything that would justify cell tower facilitates wireless communication while a cell-site
his theory. simulator is typically used to track cell phones or to covertly
obtain information from cell phones.
When a cell phone is powered on, the cell phone will typically
attempt to maintain periodic communication with its wireless
carrier’s network. A cell phone will broadcast information,
whether or not the cell phone is currently in use or not, and a
cell phone will generally attempt to connect a cell tower in its
wireless network that is broadcasting the strongest signal.
A cell-site simulator broadcasts a strong signal
that mimics a particular type of cell tower.
Any cell phones within the cell-site
26
simulator’s range and configured to connect to the simulated have hidden evidence of the use of cell-site simulators from the
THE DEFENDER / WINTER 2016
wireless carrier’s towers will “see” the cell-site simulator’s defense and will deny the use of cell-site simulators even when
strong signal and will connect to the cell-site simulator. Cell directly asked questions about the use of the devices in a case.
phone data is generally encrypted, but cell-site simulators
Even when directly confronted with a court order compelling the
exploit a weakness in the encryption scheme. While older cell
government to reveal the use of cell-site simulator technology,
phone communication technologies (i.e., 2G) may encrypt the
the government will continue attempts to conceal its technology.
data sent from and to a cell phone, the information the cell
Law enforcement agencies and prosecutors faced with the
phone uses to identify itself to the cell tower is not encrypted
possibility that the court will order the prosecutor to disclose
and can be intercepted by a cell-site simulator. Modern cell
the use of cell-site technology in a case must inform the Harris
phone communication technologies (i.e., 3G, 4G) employ
Corporation and/or FBI, so that they may intervene in the
mutual authentication protocols that require the cell phone tower
proceeding. Some of the non-disclosure agreements revealed
to identify itself to the cell phone before the cell phone will
to the reporters even grant the FBI the authority to direct the
connect to it. However, the cell-site simulator can trick a modern
prosecutor to dismiss a case rather than risk disclosure.
cell phone into downgrading into 2G mode, where the cell-
site simulator can easily obtain the cell phone’s identification The government may even hide the use of a cell-site simulator
information. In addition, cell-site simulators are able to decrypt from the prosecutors in the casexvi
a cell phone’s communications.
There is a significant chance that the prosecutor in your case is
A cell-site simulator can collect several types of information unaware that a cell-site simulator was used in your case. Agents are
from the cell phones connecting with the cell-site simulator. instructed to develop independent “corroborating techniques” so
At a minimum, a cell-site simulator will collection the cell that the agents can disclose only the “corroborating” information
phone’s identification information, including the cell phone’s and keep cell-site simulator information confidential. Warrants
identification number (see Glossary for some of the terms used to and court orders authorizing the use of cell-site simulators will be
describe a phone’s identification number) – a number that serves sealed. It is unlikely that the line prosecutor ultimately handling
as a unique “address” for the cell phone – and the cell phone’s the case will be aware of the use of a cell-site simulator in the
general location. If the government knows the target phone’s case. When explicitly requested to deliver Brady information to
identification number, it can screen for that identification number the defense, there are likely to be breakdowns in communication
and determine the location of that specific phone. Similarly, if between the prosecutor and the investigating officers. A defense
the government knows the target phone’s general location, it lawyer needs to be prepared to help everyone involved in the
can use location data to determine the identification number judicial process understand what a cell-site simulator is, why
associated with the phone. Cell-site simulators often employ it is important to the case at hand, and why its use must be
technology that boosts law enforcement’s ability to pinpoint a disclosed under Brady obligations.
cell phone’s location. In addition, documents obtained by the
American Civil Liberties Union (“ACLU”) have revealed that How do I find out if a cell-site simulator is
certain cell-site simulators can be configured to snoop on a cell used in my case?xvii,sviii
phone’s communications – including phone calls and texts. It has
also been revealed that some cell-site simulators can be used to We know that law enforcement agencies in Houston, including
jam cellular communications, make silent calls to target phones, the Houston Police Department and federal law enforcement
and spoof calls and messages on behalf of a target cell phone. It agencies, have cell-site simulators. As the use of cell-site
is widely believed – and likely, given cell-site simulator’s other simulators is almost invariably hidden in criminal cases,
abilities – that cell-site simulators can directly monitor a cell determining that a cell-site simulator was used in a case is
phone’s internet communications. largely educated guesswork. In some cases, the use of cell-site
simulators may be disguised by warrants, court orders, and
II. Why should I be concerned if a incident reports referring to “mobile tracking devices,” “pen
registers,” “confidential informants,” or “anonymous tipsters.”
Cell-Site Simulator is used in my case? In other cases, the offense report may simply omit relevant
CONTINUED : CELL-SITE SIMULATORS
The government hides its use of cell-site simulatorsxi,xii,xiii,xiv,xv details and seem perfunctory or cryptic. As in all other cases, a
defense lawyer cannot not take the offense report, court orders,
The greatest challenge in cell-site simulator cases is that law
or warrant request at face value. If law enforcement’s fortuitous
enforcement agencies will actively conceal the use of cell-site
discovery of your client seems too good to be true, it warrants
simulators. The Harris Corporation requires agencies to sign
investigations. Some potential red flags have been gleaned from
broad non-disclosure agreements regarding cell-site simulators.
the ACLU, the Electronic Freedom Foundation (“EFF”), and
The non-disclosure agreements direct law enforcement agencies
lawyers who have litigated cell-site simulator cases.
and prosecutors to conceal any information about the use of
cell-site simulators during discovery and during trial. These
non-disclosure agreements will frequently put law enforcement
agencies and prosecutors in a position where they must conceal
the use of cell-site simulators in offense reports or even make
misrepresentations to the trial court – for example, when
attempting to obtain a warrant to use the cell-site simulator. Case
law indicates that law enforcement agencies and prosecutors
27
WHERE CELL-SITE SIMULATOR Handling a cell-site simulator casexix,xx,xxi
GLOSSARY OF TERMS i Written with the invaluable help of Ed McClees, whose firsthand
experience as a prosecutor working with law enforcement agents
The International Mobile Subscriber Identity (IMSI), seeking court orders and warrants for electronic surveillance lent a
3 voice of practical experience to this article
Electronic Serial Number (ESN), and Mobile
Identification Number (MIN) are different types of ii United States v. Rigmaiden, CR 08-814-PHX-DGC,
unique identifying numbers that cellular networks 2013 WL 1932800 at *1–2 (D. Ariz. May 8, 2013)
use to identify and communicate with a specific iii Robert Kolker, What Happens When the Surveillance State Becomes
phone connected to the network. an Affordable Gadget?, BUSINESSWEEK (March 10, 2016)
available at https://www.bloomberg.com/news
articles/2016-03-10/what-happens-when-the-surveillance-state
A pen register is a device which records or decodes -becomes-an- affordable-gadget
4
incoming calls to a particular phone. A trap and iv When your conspiracy theory is true, WNYC (June 19, 2015)
trace register is a device which records or decodes available at http://www.wnyc.org/story/stingray-conspiracy
outgoing calls to a particular phone. These devices -theory-daniel-rigmaiden-radiolab/
can be easily distinguished from a cell-site simulator, v Sam Biddle, Long Secret Stingray Manuals Detail How Police Can
which tracks the location of a cell phone. Spy on Phones, THE INTERCEPT (Sept. 12, 2016) available at
https://theintercept.com/2016/09/12/long-secret-stingray
-manuals-detail-how-police-can-spy-on-phones/
5 A mobile tracking device is a device which permits the vi State v. Andrews, 227 Md. App. 350, 380 (2016)
tracking of the movement of a person or object. While vii United States v. Lambis, 197 F. Supp. 3d 606, 609 (S.D.N.Y. 2016)
a cell-site simulator functions as a mobile tracking
viii Stingrays: The Most Common Surveillance Tool the Government
device, it may have other capabilities that a typical
Won’t Tell You About, ACLU OF N. CAL. at 2-4 (June 27, 2014)
mobile tracking device – like a “bumper beeper” –
does not have. ix ACLU v. DOJ (Stingrays), ACLU OF N. CAL. (Jan. 13, 2016)
x Cyrus Farivar, Cities scramble to upgrade “stingray” tracking as
end of 2G network looms, ARS TECHNICA (Sept. 1, 2014) available
An ESN reader is a device that reads the electronic at https://arstechnica.com/tech-policy/2014/09/cities-scramble-to-
6 upgrade-stingray-tracking-as-end-of-2g-network-looms/
serial number from the data track of a cell phone
if the device does not intercept the contents of a xi In the Matter of the Application of the of Am. for an Order Relating
communication. While a cell-site simulator may to Telephones Used by Suppressed, 15 M 0021, 2015 WL 6871289
function as an ESN reader, it may have other at *1 (N.D. Ill. Nov. 9, 2015)
capabilities, which intercept the contents of a xii Stingrays: The Most Common Surveillance Tool the Government
communication. Won’t Tell You About at 9-10
xiii Complaint for Statutory Special Action and Injunctive Relief,
Hodai v. City of Tuscon, No. C20141225 at Ex B. (Superior Ct.,
Pima Cty., filed Mar 3, 2014) available at https://www.acluaz.org/
Nicolas
en/cases/hodai-v-city-tucson
xiv Baltimore Police Stingray non-disclosure agreement, Baltimore Sun
(Apr. 8, 2015) available at www.baltimoresun.com/bal-police-
stingray-non-disclosure-agreement-20150408-htmlstory.html
Hughes
xv Andrews, 227 Md. App. at 420
xvi FBI Domesic Investigations and Operations Guide, FBI at
CONTINUED : CELL-SITE SIMULATORS
As a former engineering student and xviii Stingrays: The Most Common Surveillance Tool the Government
Won’t Tell You About at 9-10
IT worker, Nicolas has a great interest
in the application - and misapplication xix Stingrays: The Most Common Surveillance Tool the Government
Won’t Tell You About at 10-22
- of science and technology in criminal
xx Andrews, 227 Md. App. at 401
cases. Nicolas currently assists the trial
xxi Lambis, 197 F. Supp. 3d 609–616
division of the Public Defender’s Office
with forensic-related issues and works on xxii Acquisition of Wireless Collection Equipment / Technology and
Non-Disclosure Obligations, U.S. Department of Justice
special projects (June 29, 2012) available at https://www.nyclu.org/sites/default/
files/releases/Non-Disclosure-Agreement.pdf
WAR
31
BY VIK VIJ
tonya
In one smaller county near in the State Jail to two to twenty They were barely scraping by with
Houston, I represented a woman years in prison. Her bond was set Tonya’s help, but with the matriarch
we will call Tonya. She had been in accordance with the local bond of the family in jail, things crumbled.
charged and convicted in the schedule, which was beyond her I tried, as did Tonya, to keep in
1990’s with low level felony drug financial ability. I spoke to multiple touch with the family, but soon, the
cases and in late 2015, Tonya members of her family, including phone calls were not returned and
was charged with possession of her daughter, and they consistently eventually the phones were “no
less than a gram of a controlled told me that they just couldn’t longer accepting incoming calls.”
substance, a State Jail Felony. For afford the bond. The lab report came back after
comparison’s sake, a gram weighs Her bond was eventually reduced, nearly seven months and showed
roughly the same as an average yet, sadly, it was still beyond their that Tonya was in possession of one-
paper clip. Before she was reach. Tonya sat in jail waiting for the tenth of one gram of a controlled
arrested, Tonya was working in the Department of Public Safety’s Drug substance. For such a tiny amount,
service industry, earning an honest Lab to share the results of the drug a nearly unquantifiable amount of
wage. She lived with multiple analysis for more than six months. drugs, Tonya lost touch with her
members of her extended family. During that time, while she sat in jail daughter and family, lost her home,
Due to Tonya’s prior felony history, on a less than a gram possession her job, and almost seven months
her penalty range was enhanced case, her daughter and her family of her life.
from six to twenty four months were forced to leave their home.
CONTINUED : WAR STORIES
33
esteban
I represented a third man in a His sister, Elena, was at her wit’s The judge also told him that if
larger county that we can call end. She had bonded him out of Esteban was serious about getting
Esteban. Esteban had been in and jail countless times. She had left clean, she would consider putting
out of trouble for years. He’s been him in jail countless times. She him on probation and sending him
convicted of felony offenses since I had hired several lawyers and sent to an intense rehab facility for a
was in grade school. He appeared her older brother to rehab twice. minimum of six months. Esteban,
to be, and later confided in me She didn’t know what to do and to his sister’s surprise, chose
that he was, a drug addict. He had was distraught. rehab. He’s still in rehab, but his
been convicted of a possession The judge in Esteban’s court offered sister keeps in touch with me. She
case. He had been convicted of him only a few months in jail, which, told me a few weeks ago that he’s
theft cases that he said were the considering his criminal history, was an entirely different person even
fuel to his addiction. He had been a fair resolution of his case. after only a few months in rehab.
on probation, he had been to jail,
and he had been to prison.
Is imprisoning addicts for low level drug offenses a viable solution? Does it
make sense? Is it justice? More than 143,000 Texans are currently in prison.
This figure does not include those in county jail awaiting trial or having been
sentenced, those on probation, or those in the Federal system.iii Of that figure,
more than 20% are there for possession of less than one gram of a controlled
substance such as cocaine or heroin. Is imprisoning so many of our citizens the
Vik Vij
Vik Vij is a criminal defense
best use of Texas’ finite financial resources? attorney in Houston who
So, what’s the point you may be asking yourself? This: ask yourself how much practes in Harris, Galveston,
of the money spent on the war on drugs is spent on education? The answer: Brazoria and Fort Bend
less than $70 million dollars. A mere drop in the bucket of the $30 billion.iv Counties. He’s the father
Shouldn’t much more money be spent on education? If we change or reduce of two amazing girls and is
demand, won’t there be a change in supply? I would also propose a long-term a fan of all things Houston.
study on recidivism rates after intense rehab programs as compared to the Connect with Vik on Twitter
status quo of locking people away for such minor transgressions. at @Vikvijlaw
Are we winning the war on drugs? Or are we losing the war on drugs?
i https://www.whitehouse.gov///sites/default/files/ondcp/press-releases/
ondcp_fy16_budget_highlights.pdf
ii http://www.foxnews.com/world/2010/05/13/ap-impact-years-trillion-war-
drugs-failed-meet-goals.html
CONTINUED : WAR STORIES
iii https://www.texastribune.org/library/data/texas-prisons/
iv https://www.whitehouse.gov///sites/default/files/ondcp/press-releases/
ondcp_fy16_budget_highlights.pdf