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Pre-Trial Diversion Could Work In Brazos County

I’ve spent a great deal of time in Brazos County court this week. Meeting with prosecutors, working to resolve cases, negotiating . . . and getting nowhere. Hurry-up and wait was the maxim. So what’s the problem? Well, prosecutors wanted too much. Not all prosecutors mind you . . . but many. And what would help move those backlog of cases, especially DWI misdemeanors? Pre-trial diversion would work to remove much of the backlog. Especially for first time offenders who, for the most part, are self-correcting folks who simply needed a wake-up call. But pre-trial diversion is not an option in Bryan-College Station criminal court proceedings. In fact, there are many Texas counties that offer pre-trial diversion. Just Google the Harris County DIVERT program.


Pre-trial diversion could be described as “informal probation.” There’s no adjudication of guilt. The offender simply agrees to participate in a community supervision program which would include monthly reporting to a probation officer, education classes, community service, and other common conditions you’d associate with probation. The offender would pay monthly fees and other associated expenses.


The upside for prosecutors is quick accountability and consequences for behavior. Even though the police had strong evidence to convict, rehabilitation and a second chance would be the focus of such a program. Cases would move more quickly since the offenders wouldn’t be compelled to plead guilty and accept life-changing convictions. Again, since most of these low level offenders will avoid repeating this humiliating experience at all costs, they’ll self-correct and stay out of future trouble.


The upside for the accused person is the opportunity to get their arrest and court records expunged. Upon successful completion of a pre-trial diversion program the criminal charge would be dismissed. Once the statute of limitations expired (two years for misdemeanors) the person could file a petition to expunge the arrest and all associated court and government records. If the person failed to successfully complete the pre-trial diversion program, they could be prosecuted as usual.


Pre-trial diversion could work in Brazos County. I’ve talked to prosecutors about it from time to time. Some agree, while others believe only a conviction would serve the interests of the community. I know this, however. If my clients have no incentive to resolve their case short of a jury trial, then a jury trial we will have . . . along with the clogged court dockets and delay.


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.


Related Resources:

Should You Blow During Your Next DWI Stop?

Changes to the Texas Rules of Evidence

Areas of Practice – Drug Charges

“Summoning Courage to Try Something New”

My inspiration for this piece was our colleague and friend, John Gioffredi.1 John’s approach to DWI defense has changed the way I try cases. His approach is not fancy, nor terribly difficult. In fact, it uses tools of our trade that we all possess. But in one important way, John’s approach is different. Trying cases like John Gioffredi takes some courage. It compels one to shoulder additional risk. It causes us to work harder. It compels us to learn new things . . . things that may be unproven in our personal experience. Moreover, it necessitates our clients burden additional uncertainty, as well. But his system has borne fruit for many. I’ve simply become a better lawyer for it and my clients have reaped rewards, as well. The point being, thanks to John’s encouragement, I summoned the courage to try something new. Is it time for you to do the same?


Criminal defense lawyers are, in many ways, risk averse. Whether it’s utilizing a new trial tactic, marketing a law practice differently, investing money for retirement, starting an exercise program, running for public office, or simply interacting with one’s spouse in a new way . . . . we lawyers are resistant to new things. We are human. But maybe it’s time to summon the courage to try something new. Albert Einstein was widely credited with saying, “The definition of insanity is doing the same thing over and over again, but expecting different results.” In other words, if you want different results than what you’re getting, you have to try something new. But trying something new doesn’t guarantee it will work, does it? And that’s the catch. It’s fear of the unknown that holds us back, that imprisons our efforts to try. Though the fix is easy, so many cannot get past the fear of failure.


Where does the courage come from to try something new? How do we lure our pluck out into the open? Simply put, we decide ahead of time that unexpected results will be ok. It’s deciding that “failure” is part of the process. Consider breaking up your goals into smaller or more manageable pieces. Modest successes will fuel confidence. But even so, if we try and miss the mark, then so be it! Nothing ventured, nothing gained. Certainly, though, the risks we take should be well-calculated beforehand. We should avoid taking foolish or unnecessary gambles. But if we desire different results in our practice (or life, in general), how can we expect to get them by doing the same old stuff? Our real failure is our failure to try.


That being the case, decide what you want. Decide to accept undesired results. Then decide to persist. Maybe you’ve been toying with the idea of making capital investments into your law practice. Maybe you want to expand your areas of practice or become board certified. Maybe you want to try DWI cases like John Gioffredi. Maybe you simply want to lose some extra weight. Whatever you desire, decide to try something new, especially if your efforts to date haven’t produced the results you want. Thank you, John, for the encouragement to try new things. Thanks for helping me lure my own courage out into the open.



1. John Gioffredi can be contacted at (214) 739-4515. His address is 4131 N. Central Expressway #680, Dallas, TX 75204. His email is JohnGioffredi@gioffredi.com.


(“Off the Back” featured in the “Voice For The Defense” July/August 2017)


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.


“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.


Related Resources:

Attorney Profile

Know Thy Adversary

Do I Really Think I’m Helping Anybody?

Do Texas Prosecutors Cheat?

Prosecutor misconduct has been all the buzz lately,1 especially in the wake of a steep uptick in exonerations. In 2013 there were 13 exonerations in Texas,2 compared with 39 in 2014,3 and 54 in 2015.4 Cases like Michael Morton and Anthony Graves pushed prosecutorial misconduct into the media, front and center. Morton spent close to 25 years in prison for murdering his wife . . . a crime for which he was exonerated. Graves spent 18 years in prison before his capital murder conviction was overturned for the prosecutorial misconduct of former Burleson County District Attorney, Charles Sebesta. Sebesta was later disbarred5 and the charges against Graves were dismissed for lack of evidence. To the credit of prosecutors, much of the progress in overturning wrongful convictions has been attributed to the prosecutors themselves. By taking the initiative to ensure the validity of their convictions through the work of conviction integrity units, they have been instrumental in securing many of these results. But clients, past and present, still wonder whether prosecutors withhold evidence favorable to them. In response, I’ve helped them understand the difference between a prosecutor’s ethical misconduct and inadvertant Brady error.


The case of Brady v. Maryland, 373 U.S. 83 (1963) held that a prosecutor’s suppression of favorable evidence violated due process principles when the evidence was material either to guilt, or to punishment, regardless of whether the prosecutor intentionally withheld the evidence. Under Brady, a prosecutor had constructive knowledge of all evidence known to anyone on the prosecution team. So, for example, if a police detective developed exculpatory evidence favorable to the accused person, a Brady error occurred if the prosecutor failed to disclose it to the defense, even if the prosecutor did not have actual knowledge of the evidence. Consequently, a prosecutor could create Brady error without knowing it. The focus of Brady was essentially on the potential harm to the accused resulting from the nondisclosure. It did not involve any punishment for the misdeeds of the prosecutor involved. The passage of the Michael Morton Act6 in 2013 eliminated much of the guesswork for prosecutors who were contemplating what evidence must be disclosed. The current state of Texas law is that a prosecutor must turn over all material evidence in their (or law enforcement’s) possession that isn’t work-product or privileged.


The intentional behavior of prosecutors is handled differently. Charles Sebesta was disbarred because he both knew about favorable evidence concerning Anthony Graves and because he intentionally withheld it. Under the Texas Disciplinary Rules of Professional Conduct (Rule 3.09(d)), punishment for a prosecutor is reserved for those who consciously choose to suppress known, favorable evidence. Brady error can result in the reversal of a conviction and a new trial. Professional misconduct, on the other hand, can result in the professional discipline, and even disbarment, of an offending prosecutor.


How often are prosecutors knowingly withholding favorable evidence to the accused? At least here in Brazos County, misdemeanor and felony prosecutors have conducted themselves with the highest degree of professionalism and ethics. In 25 years of law practice, I’ve never had opportunity to question the ethical behavior of any prosecutor I’ve worked with. There have been the occasional Brady errors, but those have typically been the fault of the police, not the prosecutor. In my experience, it’s the rare prosecutor who intentionally manipulates the system to gain advantage. But obviously, prosecutor manipulation does occur. Thankfully for my clients, though, open discovery rules have all but eliminated Brady errors in criminal cases. And for the rare prosecutor who intentionally games the system for an advantage? Well, what goes around will certainly come around again.



1. Popps, Laura Bayouth. “WRONGFUL CONVICTIONS PROSECUTORIAL MISCONDUCT AND THE ROLE …” State Bar of Texas. Texas Bar Journal, July 2017. Web. 14 July 2017.

2. Exonerations in 2013, The National Registry of Exonerations, p.1 (February 4, 2014)

3. Exonerations in 2014, The National Registry of Exonerations, p. 2 (January 27, 2015)

4. Exonerations in 2015, The National Registry of Exonerations, p. 5 (February 3, 2016)

5. Commission for Lawyer Discipline v. Charles J. Sebesta, Jr., No. 201400539 (State Bar Dist. 8-2 June 11, 2015) (Disbarment)

6. Michael Morton Act, 83d Leg., R.S., ch. 49, 2013 Tex. Gen. Laws 106 (codified at Tex. Code Crim. Proc. Ann. Art. 39.14 (West 2014))


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.


Related Resources:

Full Disclosure of Evidence Favorable to the Defense

The Motion to Revoke Probation

So You’re Defending a Forensic Evidence Case


Summertime at Gustitis Law

Summertime at Gustitis Law can be fun as we regularly hire summer interns to help out. This year was no exception as two new interns came aboard to assist Nelda and me for the next few months. Lauren and Nicole joined our team just a few weeks ago. We are extremely pleased to have them both!


Lauren began working at the end of May. Her first day on the job was assisting me during jury selection in a misdemeanor DWI prosecution. Not only was she a valuable trial partner that day, she adroitly communicated her thoughts about the pros and cons of the potential jurors. I really appreciated her help! Lauren recently graduated from high school and will be attending Baylor University in the fall. Her principle office duties include filing and answering the phone when Nelda is busy helping other clients.


Nicole began working the first week of June after a very interesting trip to Europe with her family. Nicole attends the University of Texas and majors in history. Her special projects this summer include collaborating with me to improve our Firm website and helping me prepare for a very complicated motion to suppress hearing set later in September. She is examining hours of body-cam footage and police reports to get me ready to cross-examine the police.


Thanks to both ladies for taking time from their summers to help us better serve each and every client!


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.

The Student’s Right to an Advisor

My youngest graduated from high school a few weeks ago. These milestones are always bitter-sweet for parents. We are proud of our children for achieving important life goals and we are excited watching them succeed. On the other hand, as our children move off to college and begin a new and uncharted phase of life, we cannot help but worry about them.


Matthew starts his freshman year at Texas A&M University this fall. In addition to preparing him for the rigors of engineering study, I’ve also emphasized how easy it is to run afoul of the University Student Code of Conduct Rules. The Student Conduct Rules are similar to the criminal laws, but with significant differences. Any time a student has contact with the University Police Department, it’s simply a matter of time before they get a letter from Student Conflict Resolution charging them with a violation of the code.


The obvious solution to avoiding prosecution is to make sure your student is familiar with these rules and to avoid violating them. But that can be easier said, than done. If your student does get into trouble, there’s one very crucial right they should exercise in every circumstance. That is, the right to an advisor. The advisor can, in most circumstances, be anyone they choose. It can be a parent, often times a lawyer, or even a friend. The advisor does not serve as an advocate, however. Rather, they serve as a confidant during the disciplinary process. The point is to have someone there to objectively assist the student with their interaction with University officials. The process can be scary and nerve-racking and having an advisor present for support is a huge benefit. This is especially vital if the student rule violations are related to criminal charges. Never allow your student to speak to anyone under these circumstances. Hire a qualified attorney immediately.


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.


Related Resources:

Should We Allow Our Clients to Tell Us the Truth?

Your Right to Remain Silent

Summertime at Gustitis Law


“Evaluating Anonymous Tips”

I dropped by a suppression hearing recently and listened to a prosecutor argue the merits of an anonymous tip, which they claimed justified an investigatory detention. I was puzzled. The State asserted their anonymous tip was “reliable” and, therefore, justified the stop and subsequent arrest of the defendant. Though recent case law had expanded the realm of situations in which anonymous tips may justify a detention, I soon realized the prosecutor was arguing only half the story. Evaluating a stop based upon an anonymous tip was actually a two step process. First, was the tipster’s information reliable? If yes, was the information contained in the tip sufficient to establish reasonable suspicion to detain the suspect for further criminal investigation?


A few facts from the hearing may help clarify the approach to challenging an anonymous tip. A bicycle cop and his partner were patrolling a bar district late one night, several hours before closing time. One officer observed an unidentified person leaving a nearby parking lot driving a pick-up truck. The truck drove past the officer and reported that “some occupants in a tan Silverado just knocked into our doors getting into their vehicle . . . you should check on them.” The anonymous tipster then sped away, never to be seen or heard of again. The bike cop then peddled over to a tan Silverado, which was attempting to leave the parking lot. He detained the driver and two passengers and subsequently developed probable cause to arrest the driver for driving while intoxicated. The cop testified the driver of the Silverado may have been intoxicated based on the time of day, the sizable number of bars in the area, and the fact intoxicated persons were often careless when opening their car doors in close proximity to other vehicles.




In the anonymous tip context, Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) developed the idea that both the quantity and quality of information possessed by the police were important in evaluating an investigatory detention. In White, police received an anonymous telephone tip that Ms. White would be leaving a particular apartment, at a particular time, in a particular vehicle going to a particular motel, and that she would be in possession of cocaine. When evaluating law enforcement’s detention of Ms. White, the Court stated that: “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors – quantity and quality – are considered in the ‘totality of the circumstances – the whole picture,’ [citations omitted] – must be taken into account when evaluating whether there is reasonable suspicion.” White, 496 U.S. at 330.



Case law interpreting the reliability of anonymous tips is extensive and should be examined for each situation. But in a recent Supreme Court opinion regarding the reliability of such tips, Navarette v. California, _ U.S. _, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), Justice Thomas wrote for the majority and held that under appropriate circumstances an anonymous tip could demonstrate “sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop” by accurately predicting future behavior. Navarette, 134 S.Ct. at 1688. (citing Alabama v. White, 496 U.S. 325, 327 (1990)). The Court noted their anonymous caller necessarily claimed to have eyewitness knowledge of alleged dangerous driving and that is was reported contemporaneously with observations made by the caller.  Further, the Court believed the caller’s use of the 911 system somewhat eliminated the possibility of making a false, yet anonymous report since these calls could be traced and were routinely tape recorded. Significantly, Justice Scalia dissented and claimed the majority opinion was a departure from the Court’s Fourth Amendment requirement that anonymous tips must be corroborated. He further cautioned that Navarette would be interpreted by police as a rule allowing stops based upon anonymous tips without any corroboration. 134 S.Ct. at 1692 (Scalia, J., dissenting).


Following Navarette, the Texas Court of Criminal Appeals decided Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014), another anonymous tip case. In Matthews, an unnamed tipster reported a black male called Neal Matthews, wearing a white muscle shirt and dark pants, was selling crack cocaine out of a white van parked in front of a particular store, a high-crime area known for weapons and drug arrests. The Court noted Navarette and stated an anonymous tip containing adequate indicia of reliability could support reasonable suspicion enough to justify an investigatory detention by police. The Court went on to hold that Mr. Matthews’ detention was supported by reasonable suspicion because the caller’s tip contained enough specific facts, corroborated by police, giving the tip its necessary reliability.



Even if reliable, though, an anonymous tip may still not provide enough quality content to provide law enforcement justification to detain someone for further investigation. In Stewart v. State, 22 S.W.3d 646 (Tex. App. – Austin 2000, reh’g denied) the court considered whether an anonymous tip was reliable enough in its assertion of illegality. The detention was based on anonymous information asserting a green Camaro was parked by the gas pumps at a local convenience store. The caller further stated it was occupied by a passenger and Caucasian driver who was observed falling down “a couple times” trying to get into the vehicle and appeared “highly intoxicated.” Stewart, 22 S.W.3d at 648. The responding officer did not observe anything independently to support reasonable suspicion or to corroborate the anonymous report. The Austin Court of Appeals ruled the stop was illegal. “We are mindful of the public danger posed by intoxicated drivers. But we are also mindful of our obligation to follow established Fourth Amendment precedent. Under that precedent, the anonymous caller’s tip, which was uncorroborated in its assertion of possible illegality, did not objectively support a reasonable suspicion that appellant was driving while intoxicated.” 22 S.W.3d at 650.


Another applicable case was State v. Griffey, 241 S.W.3d 700 (Tex. App. – Austin 2007, no pet.). There an unnamed Whataburger store manager reported a person was “passed out behind the wheel in the drive-through.” Griffey, 241 S.W.3d at 702. When the responding officer arrived an unidentified employee pointed to Mr. Griffey’s car. Griffey was detained by police and, ultimately, arrested for driving while intoxicated. The Austin Court ruled the stop was illegal. It held the manager’s tip did not support reasonable suspicion because the information provided to the police did not allege any criminal activity. The court also effectively distinguished Griffey’s facts from other cases in which informants had allegedly observed and reported specific behavior consistent with the commission of crimes.




As I observed the defense attorney respond to the State’s lop-sided argument, I noticed there were facts cutting both ways concerning the reliability of the anonymous report from the pick-up driver. On the one hand, the anonymous information seemed to be contemporaneously communicated to the officer and was purportedly based upon an eye-witness account. Cutting against reliability was the tipster’s quick exit from the scene after briefly talking to the officer, making their identity unknowable. But what struck me was the quantity of information the State attempted to use to establish reasonable suspicion. Was “knocking doors” in a crowded parking lot, in a bar area of town, enough to establish reasonable suspicion the driver of the Silverado may be intoxicated? The tipster had not reported they seemed drunk or that any illegal activity was afoot. Moreover, there was zero information whether the Silverado’s driver was perpetrating the door knocking themselves. Interestingly, the county court at law judge (a former prosecutor herself) did not immediately rule but took the matter under advisement. Maybe that portended a successful outcome for the defense.



(“Off the Back” featured in the “Voice For The Defense” May 2017)


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.


“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.


Related Resources:

Your Right to Remain Silent

Warrantless Blood Draws Unconstitutional 

New Law Compels Discovery

“More Women Criminal Defense Lawyers Wanted”

From my perspective the criminal law defense profession continues to be a man’s world. Based on 25 years of observation, the number of women defense lawyers at the county courthouse continues to be a minority. It should not be so, however. There should be more of them in our courtrooms fighting for the rights of the citizen accused.


Granted, I’m no expert in women. But those I’ve seen, those having the fortitude to manage the strain of a courtroom law practice, have added much to the profession. These women were tough and insightful. They’ve added invaluable insight into client management, case evaluation, and above all, jury selection. These women were great multi-taskers, too. So much better that me. And often times they just seemed to do a better job. I’d like to see more women fighting for the rights of citizens all across our Texas criminal courtrooms.


A 2013 article in the ABA Journal chronicled the careers of several leading women in the profession.1 Although the article focused on women in civil practice, one could easily discern the cross-over application to criminal defense. The take away from the article were traits common among the most successful women attorneys. First, these leading ladies worked long hours. Regardless of gender, unfortunately, there was always a price to pay for success. That price was time, and lots of it. Further, these high-fliers fought hard to develop opportunities within their firms. They worked the big cases and made the big deals. And this sacrifice gave them opportunity to spotlight their unique talents. Moreover, these women were better at networking, and building friendships and business relationships, compared to their male counterparts. Indeed, these women leaders learned to pull their own weight. Pulling their weight meant becoming consistent producers. They learned to generate revenue, develop business relationships, and attract paying clients to their firms. Most importantly, they all earned first-rate reputations for making their firms profitable. Regardless of gender, being a good lawyer was just not enough. Being business savvy was the difference between remaining an associate or becoming a profit-sharing partner.


Granted, I’m no expert in women. But I have learned about the unique challenges facing the female criminal defense attorney. Like most male practitioners, the women were challenged by the same unpredictable work hours and the same unpredictable income. But unlike their male counterparts, women sometimes failed to get the family support they needed to make a go-of-it when working those long, unpredictable hours. This was especially true when it came time to raise a family and tend to the needs of children  And, of course, there remained the lingering problem of sexism in the profession.


Unfortunately, I don’t know the answers to the problems facing women criminal defense attorneys. But whatever their unique challenges, I’d love to see more of them at the county courthouse trying cases. I appreciate their intuition and I appreciate their world-views. And maybe I’m being a little selfish saying that, often times, women are just more fun to have around.




1. Zahorsky, R. M. (2013, June 1). Meet 6 law firm leaders, each with a different story, each at the top of her game. Retrieved March 16, 2017, from http://www.abajournal.com/magazine/article/women_in_charge_at_the_top_of_their_game/



(“Off the Back” featured in the “Voice For The Defense” April 2017)


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.


“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.


Related Resources:

Immigration Strategy for the Non-Citizen

Summoning Courage To Try Something New

Do I Really Think I’m Helping Anybody?


“How Might Criminal Defendants Fare With a Justice Neil M. Gorsuch?”

If confirmed by the United States Senate, Judge Neil M. Gorsuch would fill the SCOTUS vacancy left by Antonin Scalia. During his 30 years on the Court, Justice Scalia moved the law dramatically favoring criminal defendants in several areas. One example was Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.Ed. 2d 177 (2004) which held that live witness testimony was constitutionally required in criminal trials for all “testimonial” out-of-court statements. Another was Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) which decided that police needed a search warrant to point a thermal-imaging camera at the side of a house to see if “hot spots” might indicate indoor grow lights. Scalia also delivered Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) holding that every defendant had the right to insist the government prove to a jury all the facts legally essential to punishment in federal prosecutions. He further equipped the defense with United States v. Jones, _ U.S._, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) which held the police needed a warrant to place a GPS tracker on the bottom of suspect vehicles. Conversely, Scalia provided some unwelcomed gratuities to the criminally accused. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)(pretext stops legal provided probable cause existed for any traffic offense) and Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006)(exclusionary rule only applies where its deterrence benefits outweigh its substantial social costs) were standout examples. But this article is about Neil Gorsuch. How might criminal defendants fare with Gorsuch on the Court? Admittedly, we can fashion only educated guesses. Even so, by examining some of his 10th Circuit Court writings and public remarks, we may get a line on issues important to him.


Gorsuch was willing to construe mens rea narrowly, even when it did not favor the prosecution, in United States v. Games-Perez, 695 F.3d 1104 (10th Cir. 2012). There the defendant had been charged with possessing a firearm, after being convicted of a felony, in violation of 18 U.S.C. sec. 922(g)(1). Under 10th Circuit precedent the government need only prove the accused knowingly possessed a firearm – not that he also knew he was a convicted felon. See United States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996)(knowledge required for a sec. 922(g) conviction is only that the instrument possessed was a firearm). After the 10th Circuit denied Games-Perez’ petition for rehearing en banc, Judge Gorsuch asserted in his dissent that the federal statute was unambiguous and clearly required the accused to knowingly possess a firearm and to knowingly be a convicted felon. Gorsuch brutally criticized the way the mens rea element had been interpreted in the case, adding: “People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime.” Games-Perez, 695 F.3d at 1116-17 (Gorsuch, J., dissenting).


Judge Gorsuch made his concern with over-criminalization known during a November 15, 2013 Barbara K. Olson Memorial Lecture at the Federalist Society’s National Lawyers Convention in Washington, DC. During his remarks, Gorsuch observed:


[T]oday we have about 5,000 federal criminal statutes on the books, most of them added in the last few decades, and the spigot keeps pouring, with literally hundreds of new statutory crimes inked every single year. Neither does that begin to count the thousands of additional regulatory crimes buried in the federal register. There are so many crimes cowled in the numbing fine print of those pages that scholars have given up counting and are now debating their number . . . Whether because of public choice problems or otherwise there appears to be a ratchet, relentlessly clicking away, always in the direction of more, never fewer, federal criminal laws. Some reply that the growing number of federal crimes isn’t out of proportion to our population and its growth. Others suggest that the proliferation of federal criminal laws can be mitigated by allowing the mistake of law defense to be more widely asserted. But isn’t there a troubled irony lurking here in any event? Without written laws, we lack fair notice of the rules we as citizens have to obey. But with too many written laws, don’t we invite a new kind of fair notice problem? And what happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?”1


In A.M. ex rel. F.M. v. Holmes, 14-2066 (10th Cir. 2016) Gorsuch’s dissent revealed a humorous and gentle wit. That case involved a New Mexico seventh grader arrested by school police for disrupting the education process and suspended from school for generating several “fake burps.” The boy’s mother sued school officials (and the police officer) claiming her son had been subject to an unlawful arrest and excessive force. The 10th Circuit upheld the district court’s decision in support of the officials. Gorsuch, the lone dissenter, insightfully expounded:


If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded  . . . Often enough the law can be “a ass — a idiot,” [citation omitted]and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands — and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass (sic) as they do. I respectfully dissent.


Holmes, at 95-98 (Gorsuch, J., dissenting).


In contrast, Judge Gorsuch demonstrated he may overvalue proceduralism relative to a defendant’s substantive rights. For instance, in Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) he wrote for the majority denying habeas corpus relief. This was Prost’s second habeas petition. He asserted his guilty plea and conviction should be overturned based on a new interpretation of the statute under which he was convicted. See United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). In an opinion balancing the competing considerations of fairness and judicial administration, Gorsuch wrote that Prost’s challenge should be denied since the petitioner had failed to pursue a statutory interpretation argument in the trial court, on appeal, or in his initial collateral challenge to his conviction. Though some argued the decision overvalued proceduralism at the expense of substantive rights, the opinion was well written and clearly reasoned.


Neil Gorsuch is a great admirer of Justice Antonin Scalia. In a speech to Case Western Reserve University School of Law shortly after Scalia’s death, he praised Scalia for his unyielding textualism by saying: “Judges should instead strive, if humanly and so imperfectly, to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”3  If confirmed, Neil Gorsuch will have about 30 years to forge his own judicial identity. Most likely, he will not be another Antonin Scalia on criminal law. But that’s ok since only Scalia could be another Scalia. Rather, from what we know, Gorsuch appears concerned with the plight of the ordinary man and woman. He is balanced, witty, and possesses an enjoyable sense of humor. The man seems to have common sense and he’s got the typical pedigree of a Supreme Court Justice with degrees from Columbia, Harvard, and Oxford. His writing is typically clear and precise. But trying to predict a Justice Neil Gorsuch is a difficult task, at best a guess, as he will have years to mold his judicial legacy. Gorsuch will certainly be no Scalia. But that’s ok since what we really want is Neil Gorsuch to be himself.




1. Gorsuch, N. M., Hon. (2017, February 8). 13th Annual Barbara K. Olson Memorial Lecture. Lecture presented at 2013 National Lawyers Convention in Mayflower Hotel, Washington, DC. Retrieved from http://www.fed-soc.org/multimedia/detail/13th-annual-barbara-k-olson-memorial-lecture-event-audiovideo


2. Charles Dickens, Oliver Twist 520 (Dodd, Mead & Co. 1941) (1838)


3. Gorsuch, N.M., Hon. (2017, February 9). 2016 Sumner Carnary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. Res. L. Rev. 905, 906 (2016). Retrieved from http://scholarlycommons.law.case.edu/caselrev/vol66/iss4/3/



(“Off the Back” featured in the “Voice For The Defense” March 2017)


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.


“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.


Related Resources:

Ignorance of the Law is Now an Excuse

Setting Fees in Criminal Cases

Warrants Required For GPS Tracking

“Preserving Error in Retrograde Extrapolation Cases”

Last month we introduced the toxicological aspects of cross-examining the retrograde extrapolation expert in DWI trials. Now, an understanding of toxicology will promote our error preservation before the State’s expert attempts to bamboozle the jury with opinions about the client’s driving time BAC. As a bonus, this process will also assist the defense lawyer develop meaningful cannon fodder for cross-examination if the trial court rules the extrapolation evidence admissible.


Our most powerful weapon in error preservation is TEX. R. EVID. 705(b). Rule 705(b) permits us to voir dire an expert outside the jury’s presence regarding their opinions and the factual basis for those opinions. Equally important, before scientific evidence is admissible a trial court must conduct a hearing to determine whether the proponent of the evidence has established its reliability using Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Also see, Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000); TEX. R. EVID. 702. One way to obtain a 705(b) hearing is by filing a motion in limine prior to trial requesting a hearing if the State intends to elicit retrograde extrapolation evidence. Get a ruling to assure the prosecutor is on notice and to avoid an ambush. Otherwise, approach the bench once the State’s expert takes the stand and inform the court you want a 705(b) hearing if extrapolation evidence becomes an issue. And remember this . . . sometimes a prosecutor will not ask their expert about extrapolation on direct examination. Crafty prosecutors may wait. If you open the door on cross examination, then you’ve waived error and you are screwed on re-direct. So be careful!


Once the jury retires ask for an offer of proof regarding the expert’s opinion and the facts they intend to use to support it. The prosecutor may simply propound a hypothetical to the expert using facts developed from the trial. They then ask for an opinion about your client’s BAC at the time of driving. After the offer of proof you may take the expert on voir dire. Tie them down to every fact and circumstance used to support their opinion. Use Mata v. State, 122 S.W.3d 813 (Tex. Crim. App. 2003) as a guide to bullet-point the salient facts required before proffering a retrograde extrapolation opinion. In addition to aiding your objections, this voir dire can help you develop material for cross-examination once the jury returns. Further, before extrapolation evidence is admissible it must meet three reliability criteria. First, the underlying scientific theory must be valid. Next, the technique applying the theory must be valid. And lastly, the technique must have been properly applied on the occasion in question. Kelly, supra. The burden is on the proponent to prove admissibility by clear and convincing evidence. Fuller v. State, 827 S.W.2d 919 (Tex. Crim. App. 1992). Moreover, seven factors should be considered by the trial court in deciding whether the reliability criteria have been satisfied: (1) the extent to which the underlying theory and technique were accepted as valid by the relevant scientific community; (2) the qualifications of the expert testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error in the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person applying the technique. Kelly at 573. During your 705(b) hearing ask the expert about each of these factors and determine their depth of knowledge. If the expert refers to studies, ask to see them. I have yet to read a study I cannot distinguish from the facts of my case. If they don’t have the studies on hand, consider creating an impression with your jury the expert was bolstering their opinions without providing you a fair opportunity to question them. Again, this voir dire process can provide excellent material for cross-examination if the trial court rules the extrapolation opinion is admissible.


Once you’ve extracted everything possible from the expert, object to their extrapolation testimony as follows: (1) Object under Kelly and Mata that the State failed to prove by clear and convincing evidence the underlying theory of retrograde extrapolation was valid, that the technique applying the theory was valid, and that the technique was properly applied in your case. GET AN ADVERSE RULING; (2) Include objections to the lack of qualifications of the expert, the lack of clarity with which the expert explained the technique and theory, and the lack of skill and experience of the expert. GET AN ADVERSE RULING; (3) Object to the relevance of the opinion under TEX. R. EVID. 401 and 402. GET AN ADVERSE RULING; (4) Then object under TEX. R. EVID. 403. GET AN ADVERSE RULING. Furthermore, ask the court to articulate their Rule 403 balancing test on the record. Lastly, be prepared to articulate harm if the court admits the testimony. This is not necessary to preserve error but may help the lawyer on appeal if a conviction results.


You are now fully armed to attack retrograde extrapolation and preserve error in your next DWI trial. Regularly study the toxicology as those principles give you the best opportunity to challenge the expert’s opinion. Don’t open the door to retrograde extrapolation and waive error. Use Rule 705(b) as an indispensable tool for extracting information from the expert using Kelly and Mata to develop material for your cross-examination. Get adverse rulings. And above all . . . have fun and good luck!



(“Off the Back” featured in the “Voice For The Defense” January/February 2017)


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.


“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.


Related Resources:

How to Defend a Forensic Evidence Case

How to Challenge Any Scientific Evidence

How to Cultivate Your Personal Brand

Happy New Year 2017

Although each day is an appropriate time to re-establish one’s priorities, the first day of each new year is traditionally a time of reflection, resolution, and development of a fresh outlook on2017 the coming 12 months. The year 2016 may have been a rich and prosperous year. Your hope now is that 2017 will continue the luck and good fortune. Conversely, 2016 may have been arduous. Unexpected forces beyond control may have swept you into a backwash of disappointment and loss. Whether they be financial, health, or relationship-based, these forces brought unwelcomed tension and worry. In any case, our hope for your New Year is the development of a fresh commitment to owning your response to both the unfortunate, and the welcomed news, of life. Of the few things we can control, our response to life’s circumstances transcends the good and the bad. We command our attitude toward both. Consequently, resolve yourself to enjoy the good fortunes of 2017 and to find a silver-lining in any misfortune that 2017 may bring. Make each day count as you develop a heart of wisdom. Happy New Year!


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.