Category Archives: Uncategorized
Aggravated Assault Acquittal, District Court of Smith County, TX
Murder Acquittal 2019 in District Court, Wood County, TX
Judgement of Acquittal by Jury
Judgement of Acquittal by Jury – Attorney Brett Harrison
Hard work and preparation led to a great result for our client. After a week-long trial a jury returned not guilty verdict in this serious felony charge. We are so happy for our client who has been living under this black cloud for almost a year and a half.
MEMORIES OF A CHRISTMAS IN VIETNAM
By Buck Files
After 44 months as a Marine and 158 weeks as a prosecutor for Smith County, I became a Texas criminal defense lawyer on September 15, 1970, at the age of 32. Three months later, Christmas was approaching and the Vietnam war was escalating. By the end of the year, there would be 184,314 American troops in country and 1,928 Americans would have died there. Memories of the Christmas Day that I spent in Vietnam in 1965 were still fresh in my mind – as they are even today.
We lawyers had our living tents, office tents and a courtroom tent on the side of Hill 323 near Danang. The monsoon season was almost over, but the mud and dampness were always with us. Christmas morning was dreary and that matched my mood. Two of my best friends had just rotated back to the Land of the Big PX and I missed their camaraderie. Most importantly, though, was that I missed my wife, Robyn, and my parents. This was the first time that I had been away from family on a Christmas Day and I learned what loneliness during the holiday season was all about.
And so it was that I began a tradition in 1970 that has continued. Each Christmas Day, I go to the jails here in Tyler and visit with all of my clients – 33 is the record. Some of them will have other visitors; some will not. Most, if not all, will be surprised to see me. I spend enough time with each client for them to know that I understand what it is to be away from family and friends on Christmas Day and that I am concerned about each of them. Some will become serious and reflect on the changes they intend to make in their lives to avoid being in confinement next year. For others, there will be a quiet resignation that this is yet another Christmas to be locked up. Often, I listen more than I talk.
Over the years, I’ve had former clients tell me how pleased they were to see me on a Christmas Day and conversations with parents who expressed their appreciation for my visits with their sons or daughters. I know that most of us will be celebrating Christmas or Hanukkah or just relaxing with our families on December 25th this year and may not be enthusiastic about having a visitation with clients as I am suggesting. If you give it a try, though, you’ll understand why it has been so rewarding for me for 50 Christmases.
Buck Files joined the 3rd Battalion, 4th Marine Regiment at Phu Bai, Vietnam, in June, 1965, and was one of the first Marine lawyers in country. In August, he prosecuted the first general court-martial convened by the Marine Corps in Vietnam at the old French compound in Danang and spent another eight months trying cases and providing legal assistance for the Marines of the 1st and 3rd Marine Divisions, FMF.
State Bar of Texas Podcast
The Texas Lawyer Creed: Conduct Above Reproach
Buck Files and Kenda Culpepper discuss the history of the Texas Lawyer’s Creed.
To listen, click: Podcast Link
The Texas Lawyer’s Creed has been a source of aspirational guidance for Texas lawyers for the past thirty years, and when it was reaffirmed by the Supreme Court of Texas and the Court of Criminal Appeals in 2013, lawyers were reminded of its continued relevance. But how exactly did this document come to be, and how has it helped Texas lawyers? In this edition of the State Bar of Texas Podcast, host Rocky Dhir welcomes Buck Files and Kenda Culpepper to discuss the history of the creed and its aim to help lawyers conduct themselves with the highest degree of professionalism.
Kenda Culpepper is the Rockwall County criminal district attorney.
Buck Files practices law with the firm of Bain, Files, Jarrett and Harrison in Tyler, Texas.
Wood County Man Receives Not Guilty Verdict of Murder
Congratulations to our client who will not be prosecuted!
July 2, 2019
By Brett Harrison
Congratulations to our client who will not be prosecuted! There is no substitute for laying the proper groundwork before cases are indicted…
Cell-Site Simulators and the Fourth Amendment
By Buck Files
On July 12, 2016, United States District Judge William H. Pauley, III, of the Southern District of New York, granted the defendant’s motion to suppress the narcotics and drug paraphernalia recovered by law enforcement agents in connection with a search of his apartment. Judge Pauley held that (1) the warrantless use of a cell-site simulator to locate the defendant’s apartment as the place of use for the target cell phone, was an unreasonable search; (2) the attenuation doctrine was inapplicable; and, (3) the third-party doctrine was also inapplicable. (emphasis added) United States v. Lambis, ___F.Supp.3d___, 2016 WL 3870940 (July 12, 2016)
Because of space constraints, this column will focus only on that portion of the opinion that discusses the use of the cell-site simulator. Judge Pauley’s opinion reads, in part, as follows:
In 2015, the Drug Enforcement Administration (the ‘DEA’) conducted an investigation into an international drug-trafficking organization. As a part of that investigation, the DEA sought a warrant for pen register information and cell site location information (‘CSLI’) for a target cell phone. Pen register information is a record from the service provider of the telephone numbers dialed from a specific phone. CSLI is a record of non-content-based location information from the service provider derived from ‘pings’ sent to cell sites by a target cell phone. CSLI allows the target phone’s location to be approximated by providing a record of where the phone has been used.
Continue reading Cell-Site Simulators and the Fourth Amendment
The Most Unbelievable Sentence Ever Imposed in a Child Pornography Case
Written by Buck Files
Only one criminal defense lawyer in America has ever before seen the fact situation that was presented to the United States Court of Appeals for the Sixth Circuit. United States v. Collins, ___F.3d___, 2016 WL 3583999 (6th Cir. 2016) [Panel: Circuit Judges Guy, Batchelder and Cook. Opinion by Judge Guy.] That lawyer was the attorney of record for Mr. Collins.
• The offenses: 18 USC §§ 2252(b)(1) and 2252A(b)(1) [Distributing child pornography and possessing child pornography]
• The jury’s verdicts: Guilty on each count
• The statutory maximum punishment: 20 years
• The advisory Sentencing Guidelines range: 262 – 327 months
• The sentence imposed: Two concurrent five year sentences
• The appellate court’s decision: Affirmed
The Court held, as a matter of first impression in the Circuit, that United States District Judge James S. Gwin’s consideration of a jury sentencing poll was a permissible part of determining the sentence to be imposed.
So, after years of reading opinions of the various United States Courts of Appeal holding that the decision of a district court to grant a departure or a variance from the advisory Sentencing Guidelines range was substantively unreasonable, how did three judges of the Sixth Circuit come to the decision that Collins’ sentence should be affirmed?
[Judge Gwin Polled the Jurors]
Yes, he really did! None of us have ever seen this before. Here, Judge Guy describes Judge Gwin’s polling:
At sentencing, Judge James S. Gwin revealed that, after the verdict, he ‘polled the jury to ask them … “State what you believe an appropriate sentence is.”’ Jurors’ responses ranged from zero to 60 months’ incarceration, with a mean of 14.5 months and median of 8 months. With one exception, every juror recommended a sentence less than half of the five-year mandatory minimum accompanying defendant’s offenses. See 18 U.S.C. §§ 2252(b)(1), 2252A(b)(1). Each juror’s recommendation was but a fraction of defendant’s calculated guidelines range.
[The Government’s Failure to Preserve Error]
Judge Guy notes:
Over the government’s objection, the district judge considered the jury poll as ‘one factor’ in fashioning defendant’s sentence, noting that it ‘reflect [s] … how off the mark the Federal Sentencing Guidelines are.’
* * *
Continue reading The Most Unbelievable Sentence Ever Imposed in a Child Pornography Case