Monday, August 15, 2011

DWI Law - Texas Judge Videotape Trial Policy Violates Rights

This opinion comes to DAD thanks to NCDD Regent Troy McKinney, who tells DAD that the trial attorney in the case was NCDD Fellow Gary Trichter. Troy says that "this went on this county (north of Dallas) for over 20 years with no lawyer ever appealing it." This is a case where 26 lawyers filed affidavits regarding the policy in question. Before trial, appellant filed a motion styled “Motion To Play Video For Defense Cross–Examination, Defense Direct Examination, In Closing Arguments [,] In A Motion To Suppress Outside The Presence Of The Jury.” In his motion, appellant stated:

[The trial court] had a long standing policy of not allowing litigants to use a properly admitted DWI video/audio recording for a defendant for purposes of cross examination of the arresting officer in the State's case in chief, for direct examination of defense witnesses in defendant's case in chief, for use before the jury prior to closing argument or to play the same during closing argument. Rather, it is understood that the court will admit the recording and allow the jury to use it only during deliberation.
Appellant then filed a motion to recuse the trial court judge, contending the trial court's routine practice of not allowing defendants to play or use audiotapes and videotapes during the questioning of witnesses constituted bias and denied appellant his federal constitutional rights to due process of law, cross-examination, compulsory process, confrontation, a fair trial, effective assistance of counsel, and his right to present a defense. Appellant further alleged the trial court's policy denied him his rights under the state constitution to put on a defense, to due course of law, to cross-examination, to confrontation, to a fair trial, to compulsory process, and to effective assistance of counsel.

The appellate court ruled as follows:

"We agree with the parties that the trial court's ruling prohibiting the publication of the videotape evidence to the jury in a timely manner, a decision preordained by the trial court's policy without reference to the facts and circumstances of this case, was arbitrary and constitutes an abuse of the trial court's discretion. See Billodeau, 277 S.W.3d at 39; Mechler, 153 S.W.3d at 439; Montgomery, 810 S.W.2d at 380. We further conclude the trial court's order deprived appellant of a meaningful opportunity to defend himself, and violated appellant's rights under the Sixth and Fourteenth Amendments to present his defense and confront the witnesses against him. See Holmes, 323 S.W.3d at 173.

Editor's Note: As they say, everything in Texas is 'BIG'. And nothing is bigger than the guts it takes to call out a bad judge or a bad policy. Congrats to all attorneys involved.

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