Under the law, once a defendant in custody asks to speak with a lawyer, all interrogation of the defendant must cease until a lawyer is present. Raymond Soto was arrested on drug possession charges in three cases. A pretrial hearing was conducted before me on a motion to suppress filed by Soto, wherein he asserted that all physical evidence seized and statements made by him after he asked for his lawyer must be suppressed. The main issue at the hearing was whether Soto’s question to the officer, “Can I call my lawyer, sir?,” was an invocation of his right to counsel. I concluded that it was and granted the motion to suppress. The State appealed my ruling to the Fourth Court of Appeals, asserting that Soto’s request for a lawyer was not an unequivocal invocation of his right to counsel. The Fourth Court of Appeals disagreed with the State, and affirmed my ruling granting of Soto’s motion to suppress. State v. Soto, No. 04-19-00427-CR, 2020 WL 6293451 (Tex. App. – San Antonio, October 28, 2020, pet. ref’d). The State appealed the Fourth Court’s decision to the Court of Criminal Appeals. By order dated April 14, 2021, the Court of Criminal Appeals refused the State’s Petition for Discretionary Review. (PD-1119-20, PD-1120-20, & PD-1121-20). The case has been remanded for trial.
(trial court number 2004CR0216)
This was a post-conviction writ of habeas corpus application filed by Robert Fischer, who was convicted in 2005. Fischer claimed that new scientific evidence concerning cell-phone tower location data, which was not available in 2005 when he was tried, contradicts the cell-phone tower location evidence presented by the State at his trial. The State’s cell-phone tower location data was vital to the outcome of the case. A hearing was conducted before me, and I found that Fischer met his burden to show that, had the new cell-phone tower evidence been presented at trial, Fischer would not have been convicted. The Court of Criminal Appeals agreed with my findings. Relief was granted. Fischer will be getting a new trial.
This dispute involves a matter tangential to a case that has not yet gone to trial. The defendant, Michael Stovall, was arrested in late 2018. At that time, the elected District Attorney was Nico LaHood. Stovall hired as his defense counsel two lawyers who worked for LaHood as assistant district attorneys, but became defense lawyers working for LaHood’s new criminal defense firm in January of 2019. These two lawyers did not, while assistant district attorneys, work on Stovall’s case. And, although Nico LaHood did not actively participate in the prosecution while District Attorney, he did briefly consult with the prosecutor who was initially assigned to the case. LaHood’s successor, Joe Gonzales, the current elected District Attorney, filed a motion to disqualify Stovall’s chosen defense counsel, asserting that there was a conflict because they now worked for Nico LaHood’s firm. An evidentiary hearing was held before me, and after considering the evidence and the legal issues regarding conflicts of interest and the defendant’s constitutional right to select his own counsel, I found that there was no conflict with the two attorneys Stovall had hired to represent him. LaHood’s role as defense attorney was not an issue since he was not the attorney of record and there was no assertion that he was participating in the case as defense counsel. I denied the State’s motion to disqualify Stovall’s chosen counsel. The State filed a petition for writ of mandamus against me with the Fourth Court of Appeals, asserting that I had made a ruling that was against settled law and was not within my discretion. The Fourth Court of Appeals agreed with the State and ordered me to withdraw my denial order and remove Stovall’s defense attorneys from the case. Respectfully, I disagreed with this order, so I sought a stay and filed a petition for writ of mandamus with the Court of Criminal Appeals seeking to have my initial decision upheld. On November 18, 2020, the Court of Criminal Appeals issued its opinion granting my mandamus petition and ordering the Fourth Court of Appeals to rescind its mandamus order. The Court held that, although Nico LaHood was disqualified from representing Stovall as defense counsel (LaHood was never counsel of record anyway), the two lawyers working at his firm had no conflict of interest, were not disqualified, and could continue representing Stovall.