Michael Morton spent 25 years in prison before he was released last year after it became clear to everyone, finally, that he was completely innocent.  He lost his wife.  He lost his freedom.  He lost his relationship with his son.

Our system is not perfect.  It is populated with human beings who are susceptible to error, pride, ambition, and a host of other human failings.  I’m sure that Ken Anderson convinced himself that Michael Morton was guilty of the brutal murder of his wife.  But, he had to overlook a lot of evidence and information that Michael Morton was not guilty of the murder.  It appears, in fact, that he was in possession of evidence that would have aided the defense, but failed to turn it over to Michael Morton’s very able attorneys, Bill Allison and Bill White.  Armed with the information that someone other than Michael Morton used his murdered wife’s credit card after she was killed while Michael sat in jail, or that Michael’s young son told investigators that it was not his father in the house when his mother was killed, but a “monster,” Michael Morton may have stood a chance at being exonerated and the real killer might have been caught before he murdered again (which he did).  Recently, more than two and a half decades after Michael Morton went to prison for a crime he did not commit, now-District Judge Ken Anderson sat in a Williamson County courthouse as a defendant in a Court of Inquiry.  The judge in that Court of Inquiry, after hearing days of evidence and the testimony of Michael Morton and Ken Anderson, ruled that Ken Anderson committed crimes in his prosecution of Michael Morton by, among other things, failing to turn over evidence that could have helped Michael Morton in his defense.  Former District Attorney Ken Anderson was arrested and is facing those charges now.

Prosecutors have a special duty to see that justice is done.  It is, or should be, more important to protect the innocent like Michael Morton, than to convict.  I served almost 18 years as a prosecutor in Harris County, Austin (with the Attorney General’s Office), and as first assistant district attorney in Brazos County.  Perhaps because of my experience working with Bill White and Bill Allison during the Morton trial, I was always pretty paranoid about making sure I did the right thing as a prosecutor.  I always kept an open mind to the possibility that innocent people can be caught up in our justice system.  I saw it happen more than once as a prosecutor and I deal with that reality every day in my practice as a criminal defense attorney.  I wasn’t perfect as a prosecutor and I made mistakes, but I can honestly say that I never convicted an innocent person.

Unfortunately, to some prosecutors, it’s just a job.  To others, it is about the war stories they get to tell about putting someone on death row or getting a quick verdict.  And still, to others, it is a black and white world with no middle ground.   The prosecutors association, TDCAA, trains quite a bit about the ethics of prosecution, but as I recently told the executive director of TDCAA, my good friend Rob Kepple, it’s not enough.

Now, the Texas Legislature has taken a very positive step forward.  They passed, and Governor Perry has signed, the Michael Morton Act, which will require prosecutors to maintain an “open file” policy, turning offense reports and witness statements over to the defense prior to trial.

It’s about damn time.

In defense of prosecutors, most prosecution offices around the state already have an open file policy.  However, the policy varies from office to office and means one thing in one jurisdiction and something completely different in another.  Now, it is the law of the State of Texas.

It’s a good start.  But to avoid, or at least minimize, the chances that the life and reputation of another innocent person like Michael Morton will be destroyed, prosecutors have to do more than just give lip service to their duty to “seek justice, not convictions.”  To truly do justice, prosecutors must put a great deal of personal thought into the idea that they are dealing with human beings, and not just files on their desks.  They must assume, as I believe the law and their oath requires, that every person they deal with is potentially another Michael Morton.

It’s called the presumption of innocence.  I read that somewhere.

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This was the issue addressed in oral arguments before the Texas Court of Criminal Appeals in Houston last week.  I was invited by the Court of Criminal Appeals, Texas’s highest criminal appellate court, to argue the case before a special session of the Court to commemorate the opening of the new home of the 1st and 14th Courts of Appeals in downtown Houston.  The Court heard two cases: ours and a death penalty case.

The issue in my case was whether the police must obtain a search warrant to seize and search a cell phone held in jail property.  This is an issue that is cropping up frequently in jurisdictions all over Texas and the country, with courts reaching different results.  In my case, we won a suppression hearing in the trial court and the State of Texas, through the Walker County District Attorney’s Office, appealed the trial court’s decision to the Court of Appeals.  The case was assigned to the Amarillo Court of Appeals and they handed down a unanimous opinion upholding the trial court’s ruling.  The opinion was written by Chief Justice Brian Quinn and was, in my opinion, well-written and properly decided.  The opinion can be read here:

https://www.eff.org/sites/default/files/filenode/granville_coa_opinion.pdf

Here are the facts of the case:  I represent a high school student in an Improper Visual Photography case in which he was arrested and charged with taking a photograph of another student at a urinal at their high school.  Turns out, it’s a felony in Texas to take a photograph of another person in a bathroom or dressing room without their consent and with the intent to invade their privacy.  It’s a state jail felony, punishable by confinement in a state jail (prison) from six months to two years and up to a $10,000 fine.  A school resource officer (a peace officer assigned to a school) heard about the photograph from other students and found out that my client had been arrested for a class C offense and was presently in the Walker County Jail.  A class C misdemeanor is a fine-only misdemeanor on the level of a traffic ticket.  The class C offense had nothing to do with my client having taken the cell phone picture that was the focus of the police officer’s investigation.  Rather than seek a search warrant, the officer went to the Walker County Jail and seized my client’s cell phone from his inventoried property (when you are arrested, the jail staff takes all of your property from you and stores it in a property locker for you until you are released).  After seizing the phone, the officer turned the phone on and searched through it until he found the photo in question.  He then charged and arrested my client for the felony offense of Improper Visual Photography.  The photo in question showed the other student at the urinal with his back, and part of his buttocks, showing.

On appeal, the State of Texas argued that once a person is arrested, he or she has virtually no reasonable expectation of privacy in any of his or her property associated with them when arrested, including a cell phone and its contents.  This position is based on case law that holds that citizens have a diminished expectation of privacy in their possessions when arrested, especially when facing strong governmental interests in officer safety and evidence preservation.  The cases that have addressed this issue in the past have involved clothing:  a person is arrested for murder, his clothing taken from him subsequent to his arrest, and his clothing inspected for evidence of the crime for which he was arrested.  This is accomplished without a search warrant and such searches have been upheld by almost every court that has addressed the issue.  The reasoning behind upholding such searches is that citizens have such a reduced expectation of privacy in the clothes that they wear in public that the Fourth Amendment protection against unreasonable searches and seizures is not violated by a search without a warrant.  Put another way, such a search is not Constitutionally unreasonable.

But, in our case, we’re not talking about clothing, we’re talking about a smart phone, capable of storing enormous amounts of personal and private information about almost every facet of the cell phone owner’s life.  Take a moment to look at your phone to appreciate how much of your life is laid bare to anyone who gains access to your phone.  I argued to the Court of Criminal Appeals that someone looking at my phone would be able to access my emails, text messages, Facebook posts, banking information, voicemail, healthcare information, calendar (where I’ve been, where I am, and where I’ll be), photographs, videos, personal notes, and myriad of other personal information.

The Fourth Amendment to the United States and Article I, Section 9 of the Texas Constitution protect the privacy of citizens from unreasonable search and seizure.  The United States Supreme Court has held repeatedly that the Fourth Amendment requires police to obtain a search warrant.  The Supreme Court has held that a search conducted outside the judicial process (a neutral and detached magistrate reviewing and either approving or disapproving a sworn affidavit of facts from a peace officer in support of a search or seizure) is per se unreasonable and, hence, unconstitutional, unless it falls under one of several exceptions (exigent circumstances, plain view, etc.).

I am a free citizen in a free republic and I like the idea that the government has to demonstrate that it has a damn good reason to invade my privacy.  I understand that it is sometimes necessary for our freedom from governmental intrusion to give way in order to ferret out crime, but I think the Framers of our Constitution had a monumentally good idea when they wrote and ratified the Fourth Amendment.

The oral arguments before the Court of Criminal Appeals were fun.  I prepared for days, researching, reading and re-reading Supreme Court and Court of Criminal Appeals opinions, and writing and re-writing the outline for my argument.  The State, because it was the appellant, went first.  The State, through Mr. John Messinger of the Office of the State Prosecutor, argued that the search in our case fell under the exception to the general warrant requirement known as “search incident to arrest.”  That is, that anything associated with you when you are arrested is subject to being seized and searched to insure the safety of the arresting officers and to protect evidence of crime.  The Court was very active, quickly interrupting Mr. Messinger to pepper him with questions about the State’s position.  Several members of the Court asked a number of questions directed at trying to pin the State down to its argument.  Ultimately, the State argued that the facts of this case fell under the search incident to arrest exception.

I went next, and didn’t get a minute into my argument before the questions began.  I spent the next 22 minutes responding to the very perceptive questioning of the judges of the Court, never once looking at my carefully-prepared outline.  That was a good thing.  I would much rather have the opportunity to address the questions on the minds of the judges who will be handing down the decision than try to guess what issues are important to them.  I argued, not surprisingly, that a cell phone is not a pair of pants and that there was a constitutionally-significant difference between the two.  I further argued that the facts of the case did not fall under the search incident to arrest as asserted by the State because my client was already booked in and sitting in a cell by the time the search occurred, the search incident to arrest exception having ended at the conclusion of the administrative booking process.  The justifications for the search incident to arrest, that of officer safety and preventing evidence destruction, simply did not apply, I argued, to a situation in which the State had exclusive control of my client’s phone while my client sat locked in a cell unable to access the phone.  The officer could easily have obtained a search warrant, and given the significant privacy interests of my client in the information on his cell phone, should have.

Of course, I have thought of a thousand things I should have said to the Court after I sat down.

The judges of the Court of Criminal Appeals seemed sympathetic to the privacy issue presented by this case of first impression.  They will hand down their opinion in the next several months and I anticipate that the opinion will be controversial and significant, whatever the outcome.

My thanks to the Court of Criminal Appeals for the invitation to argue before the special session in Houston, to my co-counsel Paxton Adams of Huntsville, Texas, for his assistance in preparing our brief to the court, and to several organizations who joined forces to file an Amicus Curiae brief in support of our position.

Now, we wait.

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The Law Office of Shane Phelps, P.C.
400 North Washington, Bryan, TX 77803

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Children ages 10-16 who are charged with committing crimes are prosecuted under the Texas Family Code.

When a child reaches the age of ten years old, the child becomes accountable for offenses they commit through the Juvenile Justice System under the Texas Family Code.  The Juvenile system is very different from the adult system in both philosophical emphasis and punishment.  In the Juvenile system, children are not considered “criminals.” Instead, they “engage in delinquent conduct” and may be “in need of supervision.”  While a child can be tried for committing a criminal offense, the jury does not return a verdict of guilty or not guilty.  Jurors, or judges in some instances, simply determine whether the allegations made by the State of Texas in a petition (as in a civil suit) are true or not true.  If true, a range of consequences are possible, from almost nothing to incarceration in the Texas Youth Commission (basically, prison for children).  There are some limited circumstances, however, where certain children can be “certified” to stand trial as an adult and can face adult punishment, up to and including prison.

It can be a complicated process.  If your child is being investigated or has been detained and a petition has been filed against him or her, you need to retain effective and competent counsel as soon as possible.  Shane Phelps recently left the Brazos County District Attorney’s Office after 10 years where he served as First Assistant, supervising all the divisions of the District Attorney’s Office, including the Juvenile Crimes Division.  As Deputy Attorney General for Criminal Justice from 1999-2001, Shane supervised 11 criminal justice divisions of the Texas Attorney General’s Office, including the Juvenile Crimes Division.  Shane is also a board certified criminal law specialist, certified by the Texas Board of Legal Specialization.

An adjudication for a juvenile offense can affect your child’s future.  If your child is in trouble, call Shane Phelps at 979-775-4100 or 979-220-5450 immediately.

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More and more, offenses involving computers and the internet are being added to the statutes by federal and state legislatures.  Because of the complexity of these offenses, it is vitally important to retain legal representation with experience in litigating computer-related crime.

Computer-related prosecutions are becoming more and more common.  The Penal Code and Federal Statutes are being amended regularly to address offenses involving the use of computers and/or the internet.  In many cases, the punishment range, if convicted, can lead to prison time.  To adequately protect your rights, you must retain an attorney who knows both the technical and legal implications of properly defending these types of offenses.  Shane Phelps has litigated numerous cases involving the use of computers and the internet.  He has worked closely with forensic computer examiners and knows how to properly investigate and defend computer-related cases.  In fact, Phelps helped draft Texas’ Online Solicitation of a Minor statute, testified before the Texas Legislature, and was with Governor Perry when the bill was signed into law.

If you are being investigated for any white collar offense such as theft, fraud, misapplication of fiduciary property, securing execution of a document by deception, wire fraud, or mail fraud, investigators will attempt to seize any computers you either work with or use at home.  These computers will be forensically examined for evidence of illegal activity and the results of that examination will be used against you.  That is why having the most competent legal representation you can find is so important.  Your attorney should insist on examining the computer.  Your attorney should work with a retained forensic computer examiner to make sure that the examination performed on your computer was done properly.  Often, evidence that might help to prove your innocence is overlooked by law enforcement.  An experienced attorney will find that evidence and be able to effectively challenge the prosecution’s case as well as present such evidence on your behalf.

If you are being investigated for or charged with a sex offense, know that seizure and examination of computers, cell phones, tablets, and other devices are commonly seized and examined in such cases.  With the penalties for these types of offenses so severe, the importance of retaining the most experienced attorney cannot be understated.

Shane Phelps has participated in scores of computer-related investigations and he knows how to protect your rights.  Don’t wait until you’re arrested.  If you believe that you are being investigated by law enforcement, call Shane Phelps at 979.775.4100 or 979.220.5450 immediately for help.

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Federal drug offenses are prosecuted in Federal District Court and sentencing is governed by the Federal Sentencing Guidelines.

Both the State of Texas and the United States Government investigate and prosecute drug offenses.  In the Federal system, prosecutors and investigators focus on narcotics trafficking, conspiracy, and possession of large amounts of illegal drugs. The Federal system is most different from the State system in how it goes about assessing punishment.  In state courts, a defendant can choose whether a judge or jury sets punishment and the range of punishment can be very broad, in some cases, from five years to 99 years or life in prison.  In the Federal system, punishment is set by a District Judge (never a jury, except in death penalty cases),  according to the Federal Sentencing Guidelines, an often controversial set of schedules for various crimes that give a judge a limited range of punishment from which to choose based on numerous facts and circumstances of the defendant and the crime allegedly committed.  Determining what sentence is likely to be assessed is complicated and requires a great deal of skill to insure that all of the proper information gets before a judge before sentence is handed down.

Shane Phelps is licensed to practice in the Southern District of Texas.  He has handled thousands of drug offenses in his 24-year career as an attorney.  If you are under investigation or have been indicted by a federal grand jury for any drug offense, call Shane Phelps immediately at 979-775-4100 or 979-220-5450.

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Sometimes college students make the wrong choices.  Sometimes they get caught up in a legal situation because they are in the wrong place at the wrong time.  In either case, involvement in the legal system can have devastating effects on their futures. There is never a more important time to hire the right attorney.

The Bryan/College Station area has approximately 55,000 college students attending either Blinn College or Texas A&M University.  Each year, hundreds of students are arrested and charged with crimes ranging from possession of marijuana to intoxication manslaughter.  Being arrested and convicted of even a minor misdemeanor offenses can have devastating consequences to a young person’s future.  Even deferred adjudication, in which a person is placed on probation but not convicted, remains on a person’s record and can be found in simple searches by prospective employers.

Involvement in the criminal justice system can have other collateral consequences that can do much damage.  Conviction of certain drug offenses while receiving financial aid can result in the denial of future financial aid.  Conviction of DWI or possession of marijuana can result in the suspension of a student’s driver’s license. Some offenses, if charged, can result in a student being expelled from school, even if the charges have not been resolved.

Because so much is riding on how a case can turn out, Shane Phelps spares no effort to thoroughly investigate each case, research every credible legal issue, and effectively advocate for the best result in every case.  If you are a student in trouble or the parent of a student in trouble, give Shane Phelps a call immediately at 979-775-4100 or 979-220-5450, night or day.  If after usual business hours, leave a message and your call will be returned immediately.

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White Collar is the generic term for all types of document-intensive financial crimes.White Collar offenses can be among the most complicated criminal cases to defend. Usually involving financial transactions, a white collar offense is often won or lost on the basis of the state of the document trail.  In defending a White Collar case, the experienced attorney will spend hundreds of hours poring over piles of documents to make sense of the prosecution’s case against an accused.  Organization, dedication, and an eye for detail are the hallmarks of a successful White Collar defense.

Shane Phelps, a board certified criminal law specialist, has 24 years’ experience in prosecuting and defending criminal cases in Texas.  As the Chief of the Texas Attorney General’s Prosecutor Assistance and Special Investigations Division, Phelps was called upon by elected prosecutors, judges, and law enforcement officials from all over the State of Texas to handle high-profile, complicated criminal prosecutions, often involving public officials.  As First Assistant District Attorney in the Brazos County District Attorney’s Office, Phelps handled the majority of the major White Collar cases, often spending more than a year gathering and making sense out of thousands of documents, bank statements, loan documents, medical billing records, tax documents and other financial records.

If you are being investigated or prosecuted for any White Collar offenses such as theft, misapplication of fiduciary property, forgery, securing execution of a document by deception, money laundering, or any other similar offense, give Shane Phelps a call at 979-775-4100 or 979-220-5450 immediately.

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Homicide cases are among the most complicated and serious prosecutions. With your life on the line, you must retain the most experienced attorney you can find to protect your rights in court.

In Texas, homicide prosecutions can take several forms. Capital Murder, Murder, Felony Murder, Involuntary Manslaughter, Intoxication Manslaughter, and Criminally Negligent Homicide. The punishment for these offense range from six months in State Jail (part of the Texas Prison System) all the way to life in prison or even death. With so much at stake, a person being investigated for or who has been charged with homicide has everything to lose.

Homicide prosecutions are complex and can be very technical.  An attorney defending a citizen accused of such a crime must be able to expertly deal with medical testimony, search and seizure law, confession law, DNA evidence, and crime scene investigation technique.  But, it is not enough to simply be good at these areas, an effective attorney must also have years of courtroom experience and the ability to communicate effectively with jurors.

Shane Phelps prosecuted for 18 years.  During those years, Shane prosecuted all manner of homicide cases from negligent homicide to death penalty cases.  Shane is known for his courtroom ability, meticulous preparation, legal research skills, surgical cross-examinations, and compelling closing arguments.  He is board certified in criminal defense law by the Texas Board of Legal Specialization.

If you are being investigated for a homicide offense or have been charged, call Shane Phelps immediately at 979-775.4100 or 979-220-5450.

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If you have been arrested and charged with Driving While Intoxicated or any other intoxication-related offense, you need the help of an experienced and dedicated attorney with years of experience in litigating intoxication-related crimes such as DWI.

While a first offense DWI is only a class B misdemeanor, a conviction for DWI can have very serious consequences for you.  Financially, a DWI conviction can mean thousands and thousands of dollars in fines, court costs, state surcharges, and dramatically increased insurance premiums.  A DWI conviction will also go on your criminal record and driving record, for all to see for years to come, potentially interfering with your job now or future employment.  The likely result of a first offense DWI conviction is at least a year on probation, a big fine, reporting each month to a probation officer, performing hours and hours of community service, submitting to drug and alcohol screens, and not being able to leave the county in which you live without permission.

DWI is serious business.  Of course, the very best approach is not to ever drink and drive.  If you do, make other arrangements for getting home, such as a designated driver, a taxicab, or just crashing on a friend’s couch.

If you are arrested for DWI, it does not necessarily mean that you just have to give up without a fight, though.  There are many important legal issues involved in defending a DWI which can be developed through investigation and legal research and used effectively to successfully defend your case, issues such as whether your were legally intoxicated at the time of driving, whether the State can prove you were actually driving, whether a test administered to you was valid and properly conducted, and whether the officer had a legal right to stop you in the first place.

If you have been charged with a felony DWI (your third or more DWI), Intoxication assault, or Intoxication manslaughter, the stakes are much higher.  Each of these felony offenses carries a potential prison term and thousands of dollars in fines. Litigating one of these offenses requires the skills and ability that come with years of courtroom experience.

To address these issues and give you the best fighting chance to get the best result, you need an experienced attorney.  Make no mistake, all attorneys are not the same.  You need to look for Board Certification in Criminal Law, experience in trial, and a track record of success.  It is important to shop around for a good attorney.   You will find other attorneys who will charge less than I do, but you need to consider whether you can afford not to get an attorney who will cover all the bases, properly investigate all the facts of your case, research all the potential legal issues, is prepared to vigorously defend you in court, and will give the edge you need to get the best result.

There are, of course, no guarantees.  If you talk to an attorney who makes promises about how your case will turn out or guarantees a dismissal of your case or a reduction to another offense, walk away.  Such promises cannot be made and are, in fact, a violation of the rules of professional conduct that govern the legal profession.  The only promise I will make is that I will spare no effort to achieve the very best result possible for you.

If you need help with your case, give Shane Phelps a call at 979.775.4100 or 979.220.5450.

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