Blogs

We have met with many potential new clients who know about a crime or fraud and are interested in blowing the whistle. Sometimes the client is motivated by a genuine desire to right a perceived wrong, sometimes the client is motivated by the desire to collect an award, and sometimes the client is motivated by the desire to get ahead…Read More

Modern society has conditioned people to look for off the rack solutions to all of life’s problems. “There is an App for that!”, or so we are told. The legal community is not immune from this mindset. Lawyers too succumb to the siren song of quick, easy, and most important of all, fast fixes. After all, there is a vibrating…Read More

While we are examining cases pending in the U.S. Supreme Court, it makes sense to take a look at Gamble v. United States, No. 17-646 (Brief for Petitioner filed Sept. 4, 2018; argued Dec. 6, 2018). The case presents a simple, but vital, question: “Whether the Court should overrule the ‘separate sovereigns’ exception to the Double Jeopardy Clause.” The law…Read More

With Kahler and the insanity defense, it seems fairly straightforward to see how a Supreme Court decision favorable to the petitioner could affect jurisprudence going forward: states would not have the option of eroding/eliminating the insanity defense. A decision favorable to the petitioner in Gamble would likewise have constitutional dimensions obvious from its main issue, but it could—perhaps—have more subtle…Read More

Today (March 18, 2018), the Supreme Court granted cert in Kahler v. Kansas to consider whether the Eighth and Fourteenth Amendments allow states to eliminate the insanity defense. At this time, Kansas and four other states (Alaska, Idaho, Montana, and Utah) do not recognize a defense to criminal liability involving mental disease precluding knowledge that an act was wrong. As…Read More

Last week, the Supreme Court decided Garza v. Idaho, No. 17-1026, giving defendants with appellate waivers a point on the scoreboard. In Roe v. Flores-Ortega, 528 U. S. 470 (2000), the Court said that prejudice is presumed when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued. A defendant need not make any…Read More

Timbs v. Indiana, No. 17-1091 (U.S. Feb. 20, 2019). So now we know: The Eighth Amendment’s Excessive Fines Clause is an “incorporated” protection applicable to the states under the Fourteenth Amendment’s Due Process Clause. Yesterday, the Supreme Court decided Timbs v. Indiana, letting us know that the excessive-fines clause is “‘fundamental to our scheme of ordered liberty,’ with ‘dee[p] root[s]…Read More

Yesterday was a good day for Mr. Solano-Hernandez, who’d been convicted and sentenced for illegal reentry in the Southern District of Texas. After the Supreme Court granted the defendant’s writ and remanded, the Fifth Circuit vacated the defendant’s sentence and remanded for resentencing in United States v. Solano-Hernandez, Nos. 15-41554/582 (5th Cir. Feb. 13, 2019) (unpublished). All along, the reviewing…Read More

We’ve been considering the evolution of concepts of mens rea in the context of statutory rape, especially as that offense is defined in Texas. In our last post, we started examining the cert petition that arose out of the decision in Fleming v. State, 441 S.W.3d 253 (Tex. Crim. App. 2014). You can read the cert petition here. Basically, in…Read More

Our discussion of mens rea started out with a brief exploration of statutory rape and Texas case law. Let’s go back to that context for a few posts. After the Texas Court of Criminal Appeals announced its decision in Fleming v. State, 441 S.W.3d 253 (Tex. Crim. App. 2014), which we discussed in this blog a few weeks ago and…Read More