Howard Thomas Douglas v. State

ACCEPTED
03-14-00605-CR
5021070
THIRD COURT OF APPEALS
AUSTIN, TEXAS
April 24, 2015 4/24/2015 11:14:28 AM
CAUSE No. 03-14-00605-CR JEFFREY D. KYLE
CLERK

IN THE COURT OF APPEALS
FOR THE THIRD COURT OF APPEALS DISTRICT
AUSTIN, TEXAS

Dr. HOWARD THOMAS DOUGLAS
Appellant,
v

THE STATE OF TEXAS
Appellee.

On appeal from Cause No. D-1-DC-12-900059, in the 331st District Court,
Travis County, Texas

APPELLANT’S BRIEF

HAMMERLE FINLEY LAW FIRM
Craig M. Price
State Bar No. 16284170
2871 Lake Vista Drive, Suite150
Lewisville, Texas 75067
Telephone: 972-436-9300
Telecopier: 972-436-9000
cmp@hammerle.com

ATTORNEY FOR APPELLANT
 I.

Identity of Parties and Counsel

Trial Judge: Honorable Robert A. Perkins
331st Judicial District Court
1104 Nueces, Suite 203
Austin, Texas 78701

Defendant: Dr. Howard Thomas Douglas
391 E. Las Colinas Blvd, Suite 130-614
Irving, Texas 75039

Counsel: Craig M. Price,
E-Mail: cmp@hammerle.com
HAMMERLE & FINLEY, LLC
2871 Lake Vista Drive, Suite 150
Lewisville, Texas 75067
SBN 16284170

State: Donna Crosby,
Travis County Criminal District Attorney
509 West 11th Street
Austin, Texas 78701
SBN 05118700

i
 II.

Table of Contents

Identity of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Index of Statues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Appellant’s Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
vi
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Statement of facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Issue one. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Evidence was legally insufficient to support Jury’s verdict. . . . . . . . . . . . 5

ii
1. No legally sufficient evidence supports a finding of intent to
defraud or harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. No legally sufficient evidence supports a finding that Appellant
engaged in deception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3. No legally sufficient evidence exists that Appellant caused to be
submitted a form HCFA 1500 seeking payment for services
rendered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

4. No legally sufficient evidence exists, other than uncorroborated
testimony of accomplice witness, that Appellant caused TMIC
to execute any document. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

5. No legally sufficient evidence supports the jurisdictional amount
for a third degree felony because the State did not segregate the
proper amount billed from allegedly fraudulent amounts billed. . . 12

6. No legally sufficient evidence supports the amount of restitution. . 16

Issue Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Appellant was denied a fair trial because of ineffective assistance of
counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. Standard of Review . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 17

B. Appellant’s trial counsel was ineffective throughout . . . . . . . . . . . 18

iii
 III.

Table of Authorities

Jackson v. Virginia, 443 U.S. 307, 313 (1979) . . . . . . . . . . . . . . . . . . . 5

Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) . . . . . . . . 5

Jackson, 443 U.S. at 319. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Brooks v. State, 323 S.W.3d 893, 903, 912 (Tex. Crim. App. 2010) . . . 5

Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App. 2012) . . . . . . . . . . 5

Winfrey v. State, 323 S.W.3d 875, 882 . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 20

Williams v. State, 235 S.W.2d 742, 750 (Tex. Crim. App. 2007) . . . . . . 5

Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011) . . . . . . . . . 6

Goldstein v. State, 803 S.W.2d 777, 791 (Tex. App.—Dallas 1991, pet
ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Goldstein, 803 S.W.2d at 701. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Lamar v. State, Cause No. 05-09001315- CR No.; -01316; 01317, (Tex.
App.—Dallas 2010, ) (not published) . . . . . . . . . . . . . . . . . 9, 10

Mosley v. State, Cause No. 05-09-001315- CR No. 01316-CR No.;
01317-CR No. . . . . . . . . . .. . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 11, 12

Cathey v. State, 992 S.W.2d 460, 463, n.2 (Tex. Crim. App. 1999), cert.
denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000). . . 11

Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App. 1998) . . . . . . . . . . 11

Moore v. State, 984 S.W.2d 783, 787 (Tex.App.—Waco 1999, no pet.) . 11

Beathard v. State, 767 S.W.2d 423, 430 (Tex. Crim. App. 1989), cert.
denied, 528 U.S. 954, 120 S.Ct. 380, 145 L.Ed.2d 296 (1999) . . . 12
iv
Smith v. State, 681 71, 75-76 (Tex. App.—Houston [14th Dist.] 1983),
aff’d, 722 S.W.2d 408 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . 11, 14

Lehman v. State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990) . . . . . . . . 13, 15

Simmons v. State, 109 S.W.3d 469, 472 (Tex. Crim. App. 2003) . . . . . 13,15

Lee v. State, 29 S.W.3d 70, 575 (Tex. App.—Dallas 2000) . . . . . . . . . 14, 22

Fisher v. State, 803 S.W.2d 828, 830 (Tex. App.—Dallas 1991, pet. ref’d) 21

Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980) . . . . 16

Thompson v. State, 9 S.W.3d (Tex.Crim.App. 1999) . . . . . . . . . . . . . . . 17,18

Aldrich v. State, 296 S.W.3d 225 (Tex.App.—Fort Worth 2009, pet. ref’d)
(op. on reh’g en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002) . . . . . . . . . . . . 18

Andrews v. State, 159 S.W.3d 98, 101-02 (Tex.Crim.App. 2005) . . . . . . . 18, 19

Cannon v. State, 252 S.W.3d 342, 349-50 (Tex.Crim.App. 2008) . . . . . . . 18, 21

United States v. Cronic, 466 U.S. 648, 658-59 (1984) . . . . . . . . . . . . . . . . 18, 21

Strickland v. Washington, 466 U.S. 668, 692 (1984) . . . . . . . . . . . . . . . . . 18

Vaughn & Sons, Inc. v. State, 750 S.W.2d 17, 18 (Tex. App.—Texarkana
1988, ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Young v. State, 957 S.W.2d 923 (Tex.App.—Texarkana 1997) . . . . . . . . 21

Fuller v. State, 73 S.W.3d 250, 257 (Tex. 2002) . . . . . . . . . . . . . . . . . . . 22

Montgomery v. State, 810 S.W.2d 272, 291 (Tex.Crim.App. 1990)
(op’n on rehearing). . . . . . . . . . . . . .. . . . . . . . . . . . . .. . . . . . . . . . . . 35

v
 Statutes:

Tex. R. App. P. 38.1(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Texas Penal Code Ann. §32.46(a)(1) (Vernon Supp. 2002) . . . . . . . . . 7, 15

Tex. Penal Code Ann., §32.46(b)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Penal Code Ann., §6.03(a) (Vernon 2012). . . . . . . . . . . . . . . . . . . 8

Tex. Penal Code Ann., §31.01(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. Code of Crim. Proc. Ann., Sec. 38.14. . . . . . . . . . . . . . . . . . . . . . . 11

Tex. Penal Code Ann., Sec. 8.02[a] . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Tex. Penal Code Ann., Sec. 803[b][1] . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Texas Penal Code Sec. 7.24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

STATEMENT OF THE CASE

Appellant appeals his conviction by a jury in Travis County, Texas, for the

third degree felony offense of securing execution of a document by deception.

Appellant was sentenced by the judge to 5 years in prison. [CR 190]

vi
 CAUSE No. 03-14-00605-CR

IN THE COURT OF APPEALS
FOR THE THIRD COURT OF APPEALS
DISTRICT AUSTIN, TEXAS

Dr. HOWARD THOMAS DOUGLAS,
Appellant,

VS.

THE STATE OF TEXAS,
Appellee.

On appeal from Cause No. D-1-DC-12-900059, in the 331st District Court, Travis
County, Texas

APPELLANT’S BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

COMES NOW, Appellant, Dr. Howard Thomas Douglas (hereafter

“Appellant”), and files his Appellant’s Brief, and in support thereof

respectfully shows the following:

I.

STATEMENT OF FACTS

Appellant is a medical doctor. He had incorporated a company known as

North Texas Medical Evaluators (hereafter “NTME”), which provided medical

APPELLANT’S BRIEF PAGE 1 OF 39
 services in the worker’s compensation sector to various entities that were

insured by Texas Mutual Insurance Company (hereafter “TMIC”). [5 RR 128-

129, 132-43] Among the services it provided, NTME would perform Functional

Capacity Evaluations (hereafter “FCEs”) for individuals to determine their ability

to return to work or to perform certain jobs. [4 RR 120-42; 5 RR 89-103]

Employees of NTME would perform these FCEs, then prepare their reports,

which were reviewed by physicians employed by NTME, and then the reports

would be submitted by NTME to TMIC. [ 4 RR 156-76] NTME would bill

TMIC for these services according to certain authorized billing codes, and TMIC

would then issue a check to NTME based on their audit of NTME’s bills.

NTME’s invoices were divided into increments, as permitted by the industry,

so that they would bill for “units” of time based on the actual amount of time spent

on the patient’s FCE, including time spent preparing and reviewing a report. [5 RR

20-46; 6 RR 166] NTME took the position that it was permitted by industry

standards to bill for a maximum of 16 units – with each unit representing a

quarter hour (15 minutes) -- if the NTME agents spent that amount of time working

on the FCE file, regardless of whether the agent was meeting face-to-face with the

patient. [6 RR 166] However, TMIC took the position that NTME could bill

only for the amount of time that NTME’s representative, whether it was a

physician, a technician or some other employee, spent in a face-to-face consultation

APPELLANT’S BRIEF PAGE 2 OF 39
or meeting with the person for whom the FCE was being conducted (i.e., the

patient). [3 RR 42, 47-49]

During the course of an audit of NTME’s billings, TMIC determined that

NTME was improperly billing it for time that was not compensable; i.e., any

portion of the FCE that was not spent face-to-face with the patient. [ 3 RR 57-59]

TMIC’s in-house investigators spoke with several people who had received FCEs

from NTME-affiliated doctors, and TMIC believed that NTME was billing it for

time that was not compensable. TMIC then conducted a “sting” operation in which

they sent one of its investigators, Bonita Reid, posing as a patient, to an NTME-

affiliated doctor, who ordered that Ms. Reid have an FCE. Ms. Reid then went to

an NTME technician for the FCE. According to its investigation, TMIC determined

that the face-to-face portion of Ms. Reid’s FCE did not last the amount of time for

which NTME billed TMIC – 16 units (four hours). Based on its investigation,

TMIC apparently filed a complaint with the Travis County Criminal District

Attorney’s Office, and this prosecution resulted. [5 RR 60-83]

Appellant was charged in his individual capacity in Cause No. D1-DC-12-

900059, while NTME was charged in its corporate capacity in a different matter.

[CR 5] NTME was not indicted in the same cause number as Appellant, but

was indicted in Cause No. D-1-DC-10900206.

During trial, Appellant’s attorney discovered for the first time, and not from

APPELLANT’S BRIEF PAGE 3 OF 39
any disclosure initiated by the State, that TMIC provides the financial funding for

the two prosecutors with the Workers’ Compensation Fraud Unit of the Travis

County Criminal District Attorney’s Office who prosecuted this case, Ms. Donna

Crosby and Ms. Meg Brooks, as well as for one paralegal and one part-time staff

person in that unit. [5 RR 60-83] Appellant attempted to introduce into evidence

the existence of this financial relationship between TMIC and the State, but the trial

court denied Appellant’s request. [5 RR 82-83] Therefore, the jury never heard of

this relationship.

II.

SUMMARY OF THE ARGUMENT
Appellant moves this Court to reverse the judgment against him because

there is no legally sufficient evidence to support the jury’s verdict against

Appellant with respect to the finding that Appellant acted with the intent to

defraud or harm; that he engaged in deception that caused Texas Mutual Insurance

Company to execute any document. There also is no legally sufficient evidence

that the pecuniary value of the amount of such document(s) satisfied the

jurisdictional amount for a third degree felony, and a fatal , material variance

existed in the pleading and the proof. Appellant also seeks a new trial on the

grounds that the trial court erred in excluding information about a financial

relationship between the State and Texas Mutual Insurance Company, the alleged

“victim.”

APPELLANT’S BRIEF PAGE 4 OF 39
 III.

ARGUMENT AND AUTHORITIES
Issue One

The evidence was not legally sufficient to support the jury’s verdict on
securing execution of a document by deception.

A. Standard of Review.

Due process requires that the State prove every element of the crime

charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313

(1979); Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011). When

reviewing the sufficiency of the evidence to support a conviction, the reviewing

court examines the evidence in the light most favorable to the verdict to determine

whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks v. State, 323

S.W.3d 893, 903, 912 (Tex. Crim. App. 2010); Wise v. State, 364 S.W.3d 900, 903

(Tex.Crim.App. 2012). The sufficiency standard is the same for both direct and

circumstantial evidence. Wise, 364 S.W.3d at 903.

It is the obligation and responsibility of appellate courts to ensure that the

evidence presented actually supports a conclusion that the defendant committed the

crime that was charged. Winfrey v. State, 323 S.W.3d 875, 882; Williams v. State,

235 S.W.2d 742, 750 (Tex. Crim. App. 2007). The appellate court should measure

the sufficiency of the evidence by the elements of the offense as defined by a

APPELLANT’S BRIEF PAGE 5 OF 39
 hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex.

Crim. App. 2011).

B. Evidence was not legally sufficient to support the verdict.

The evidence was n o t legally sufficient to support the jury’s guilty

verdict against Appellant for securing the execution of a document by

deception, and this Court should reverse the judgment against Appellant and

render a judgment of not guilty in Appellant’s favor.

Securing execution of a document by deception is proscribed by section

32.46 of the Texas Penal Code:

A person commits an offense if, with intent to defraud or harm any person,
he, by deception causes another to sign or execute any document affecting
the pecuniary interest of any person.

Texas Penal Code Ann. §32.46(a) (1) (Vernon Supp. 2002) (emphasis

added). The value alleged in the indictment and c o u r t ’ s charge made the

offense a third degree felony. See Tex. Penal Code Ann., Sec. 32.46 (b) (5). [CR

5]

The application paragraph of the trial court's charge tracked the indictment,

and permitted the jury to convict if it found beyond a reasonable doubt that

Appellant, “did then and there with intent to defraud and harm the TEXAS

MUTUAL INSURANCE COMPANY, by deception create and confirm by words

or conduct a false impression of fact, to wit: the said Howard Thomas Douglas

APPELLANT’S BRIEF PAGE 6 OF 39
caused to be submitted to the TEXAS MUTUAL INSURANCE COMPANY a

form HCFA (Health Care Financing Administration) 1500 seeking payment for

services rendered, said services were as follows: 16 units billed under CPT (current

procedural terminology) code 97750, when in fact, 16 units of service were not

rendered in accordance with the Texas Workers Compensation Medical Fee

Guidelines not believing it to be true, that was likely to affect the judgment of the

said Texas Mutual Insurance Company in the transaction which deception caused

the Texas Mutual Insurance Company to sign or execute documents affecting its

property, service or pecuniary interest, where the value of the property, service or

pecuniary interest was more than $20,000 but less than $100,000 . . . .” [CR 172

(emphasis added)] The State did not allege that Appellant acted negligently or

recklessly; only that he acted with intent to defraud and harm. [CR 5]

As stated by Martha Luevano, the State’s first witness, the FCE billing

practice that the State considered to be fraudulent was the billing for time during

which there was no face-to-face contact with the patient. [3 RR 47-49] In other

words, the State alleged that the fraud occurred because NTME billed for the time

spent for work related to an FCE if that work was not spent in face-to-face

interaction with the patient. [3 RR 47-49; CR 5]

1. No legally sufficient evidence supports a finding
of intent by Appellant to defraud or harm.

APPELLANT’S BRIEF PAGE 7 OF 39
 According to the State’s allegation in its indictment, the question is whether

the cumulative force of the facts in the record supports a deduction by any rational

finder of fact of the logical consequence or conclusion that:

• Appellant did,

• with intent to defraud and harm

• the TEXAS MUTUAL INSURANCE COMPANY,

• by deception create and confirm by words or conduct a false impression of
fact, to wit: the said Howard Thomas Douglas caused to be submitted to the
TEXAS MUTUAL INSURANCE COMPANY a form HCFA (Health Care
Financing Administration) 1500 seeking payment for services rendered, said
services were as follows: 16 units billed under CPT (current procedural
terminology) code 97750, when in fact, 16 units of service were not rendered
in accordance with the Texas Workers Compensation Medical Fee Guidelines,

• not believing it to be true,

• that was likely to affect the judgment of the said Texas Mutual Insurance
Company in the transaction, [and]

• which deception caused the Texas Mutual Insurance Company to sign or
execute documents affecting its property, service or pecuniary interest, where
the value of the property, service or pecuniary interest was more than $20,000
but less than $100,000 . . . .

[CR 5; 172 (emphasis added)]. In other words, the State alleged – and had to prove –

that Appellant caused HCFA 1500 forms to be submitted by NTME seeking payment

for 16 units of service by NTME when 16 units of service were not rendered in

accordance with the Texas Workers Compensation Medical Fee Guidelines, and that

Appellant did not believe that 16 units of service had been properly rendered when

APPELLANT’S BRIEF PAGE 8 OF 39
the forms were submitted to TMIC. [CR 5]

However, the evidence showed that Appellant did believe that NTME had

actually rendered 16 units of compensable service, and Appellant did believe that

NTME could properly bill TMIC for the time related to preparing a written FCE

report, as well as for other time related to the FCE, even if such time was not spent

face-to-face with the patient. [4 RR 156-73; 4 RR 204-12; 5 RR 20-46; 6 RR 166]

There was no legally sufficient evidence adduced at trial that Appellant knew

that billing for time spent writing an FCE report, even if conducted outside the

presence of the patient, was not permitted by the Texas Workers Compensation

Medical Fee Guidelines. A person acts intentionally, or with intent, with respect to

the nature of his conduct or with respect to a result of his conduct when it is his

conscious objective or desire to engage in the conduct or cause the result. Tex.

Penal Code Ann., Sec. 6.03(a) (Vernon 2012). Intent to deceive can be inferred

from acts, words and conduct of the accused. Goldstein v. State, 803 S.W.2d 777,

791 (Tex. App.—Dallas 1991, pet ref’d).

The conclusion that Appellant possessed the mens rea for the offense of

securing execution of a document by deception was simply theorizing or guessing by

the jury as to the meaning of Appellant’s alleged “directive” for NTME employees to

bill for 16 units of an FCE, even though portions of the services billed were not

conducted face-to-face with the patient. Such a conclusion is not a logical deduction

APPELLANT’S BRIEF PAGE 9 OF 39
from that conduct. See Megan Winfrey, 393 S.W.3d at 771. See also Hacker, 389

S.W.3d at 874 (recognizing that without proof of wrongful conduct “all of this

evidence was mere ‘suspicion linked to other suspicion’”); Richard Winfrey, 323

S.W.3d at 882 (holding that evidence giving rise to only a suspicion of guilt, even a

strong one, is insufficient to support a conviction); cf. Patrick, 906 S.W.2d at 487

(holding evidence sufficient to support mens rea for murder).

Viewing all of the circumstantial evidence and any reasonable inferences from

that evidence in the light most favorable to the State, the cumulative force of that

evidence is insufficient to convince any rational factfinder beyond a reasonable doubt

that Appellant acted with the requisite mens rea necessary to support his conviction

for securing execution of a document by deception. See, e.g., DeLay v. State, Cause

No. 03-11-00087-CR, at p. 21 (Tex. App.—Austin, Sept. 19, 2013, pet. granted)

(lack of legally sufficient evidence that funds were “proceeds of criminal activity”

requires an acquittal). See also Stobaugh v. State, Cause No. 02-11-00157-CR, at *

p. 172 (Tex. App.—Denton, Jan. 23, 2014, pet. denied) (reversing conviction for

murder because there was no legally sufficient evidence of intent to cause serious

bodily injury to victim by committing an act clearly dangerous to human life that

resulted in her death or that he intentionally or knowingly killed the victim).

Likewise, there was no testimony that TMIC would not have executed any

checks payable to NTME but for Appellant’s conduct. See Goldstein, 803 S.W.2d at

APPELLANT’S BRIEF PAGE 10 OF 39
701; Mosley v. State, Cause No. 05-09-001315- CR No. 01316-CR No.; 01317-CR

No., (Tex. App.—Dallas 2010, no pet.) (not published) (“Based on the record before

us, we conclude a rational jury could find that but for appellant’s actions, there would

have been no lease.”). See also Smith v. State, 681 S.W.2d 71, 75-76 (Tex. App.—

Houston [14th Dist.] 1983), aff’d, 722 S.W.2d 408 (Tex. Crim. App. 1986)

(misrepresentations cause victim to sign contract).

As a result, this Court should reverse the trial court‘s judgment and render a

judgment of acquittal. See Tex. R. App. P. 43.2(c), 51.2(d); Greene v. Massey, 437

U.S. 19, 24–25, 98 S. Ct. 2151, 2154–55 (1978); Burks v. United States, 437 U.S. 1,

16–18, 98 S. Ct. 2141, 2150–51 (1978); Megan Winfrey, 393 S.W.3d at 774.

In this case, there exists no legally sufficient evidence – direct or

circumstantial – that Appellant took any action with the required mens rea: with the

intent to defraud and harm TMIC by deception. At best, the evidence showed that

Appellant believed that NTME could legitimately bill TMIC for time related to an

FCE even if such time was not spent face-to-face with the patient. [4 RR 156-73; 6

RR 166]

2. No legally sufficient evidence supports a finding that
Appellant engaged in deception.

A person engages in deception by creating or confirming by words or

conduct a false impression of law or fact that is likely to affect the judgment of

another in the transaction, and that the actor does not believe to be true. Tex. Penal

APPELLANT’S BRIEF PAGE 11 OF 39
 Code Ann., Sec. 31.01(1)(A) (emphasis added). The victim’s testimony that he

would not have executed the document but for the accused’s conduct is

sufficient to establish the element of deception. See Goldstein, 803 S.W.2d at 701.

See also Mosley v. State, CR No. 01316-CR No.; 01317-CR No., (Tex. App.—

Dallas 2010, no pet.) (not published) (“Based on the record before us, we

conclude a rational jury could find that but for appellant’s actions, there would

have been no lease.”).

Appellant’s witnesses testified that industry standards allow companies like

NTME to bill for a maximum of 16 units – with each unit representing a quarter hour

-- if the NTME agents spent that amount of time working on the FCE file, regardless

of whether the agent was meeting face-to-face with the patient. [4 RR 156-73; 5 RR

20-46; 6 RR 166] Additionally, Shelly Estrada, NTME’s office manager, testified

that NTME would not have billed for time spent preparing the report, which occurred

beyond the face-to-face time spent with the patient unless such a practice was

allowed [6 RR 166].

Additionally, in cases involving securing the execution of a document by

deception, the State typically must prove that the victim would not have executed

the document but for the accused’s conduct in order to establish the element of

deception. See Goldstein, 803 S.W.2d at 701. See also Cause No. 05-09-001315-

CR No. 01316-CR No.; 01317-CR No., (Tex. App.—Dallas 2010, no pet.) (not

APPELLANT’S BRIEF PAGE 12 OF 39
published) (“Based on the record before us, we conclude a rational jury could find

that but for appellant’s actions, there would have been no lease.”)

Similarly, the State should have established that TMIC would not have

executed the documents at issue but for the actions of Appellant. However, no

evidence supports that conclusion, and no legally sufficient evidence exists to

support the jury’s verdict.

As a result, this Court should reverse the judgment against Appellant and

render a not guilty verdict in his favor.

3. No legally sufficient evidence supports the
jurisdictional amount because the State
did not segregate the proper amount
billed from allegedly fraudulent amounts
billed.

The State also failed to adduce any legally sufficient evidence of the

difference between the value of allegedly fraudulent FCE services that were

performed and billed by NTME and the value of the properly billed FCE testing

services performed and billed by NTME. Therefore, the State failed to establish

the jurisdictional amount of the offense by legally sufficient evidence.

In other words, the State had to prove that the pecuniary value of the

portion of the documents that were signed as a result of fraud and deception had

to have an aggregate value of $20,000 or more but less than $100,000.

Otherwise, the State would not have established, by legally sufficient evidence,

APPELLANT’S BRIEF PAGE 13 OF 39
 that Appellant’s alleged conduct rose to the level of a third degree felony.

The State relied on numerous checks to establish the jurisdictional value of

this offense. In order for Appellant to be convicted of the offense of securing

execution of a document by deception, the State had to establish by legally

sufficient evidence the portion of the amount of each check relied upon in the

indictment that was executed as a result of Appellant’s deception and fraud. In

other words, the State had to prove, beyond a reasonable doubt, the amount of each

check that did not represent the value of services actually rendered by co-

defendant NTME, and, therefore, was paid as a result of fraud.

Appellant does not argue that the statute requires the State to prove that

actual harm resulted from the intent to defraud. See Smith v. State, 681 S.W.2d

71, 75-76 (Tex. App.—Houston [14th Dist.] 1983), aff’d, 722 S.W.2d 408 (Tex.

Crim. App. 1986). However, because Appellant was charged with securing

execution of a document by deception as a third degree felony -- $20,000 or

more but less than $100,000 -- the State was required to prove a value that was

sufficient to satisfy the jurisdictional requirement of its pleading. See Lehman v.

State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990); Simmons v. State, 109 S.W.3d

469, 472 (Tex. Crim.App. 2003). See also Lee v. State, 29 S.W.3d 70, 575 (Tex.

App.—Dallas 2000).

The State presented testimony that NTME could not properly bill for time

in which the physician or other healthcare provider (i.e., nurse, technician, etc.)

APPELLANT’S BRIEF PAGE 14 OF 39
was not in the presence of the patient. Additionally, the State presented evidence

that NTME had, in fact, billed TMIC for time that was not spent in a face-to-

face meetings or consultations with each patient. However, there is no question

that a portion of each check paid by TMIC to NTME, and each invoice from

NTME on which those checks were based, included billing and payment for

services that were actually and properly earned by NTME [5 RR 108-116; State’s

Ex. 5]. As a result, the State should have segregated the value of each document

executed that was allegedly induced by Appellant’s allegedly deceptive conduct.

The State essentially admitted at trial that it did not know the specific amount

or portion of any document that allegedly was executed by deception. In fact, the

State conceded that a portion of each check was induced by a legitimate amount of

money owed to NTME, and not entirely by deception. [State’s Ex.5] As a result, the

State created an average amount of purported fraud on which to base its jurisdictional

allegations. Kathleen Haden, TMIC’s senior investigator, testified that she only

spoke with a handful of the more than 135 patients named in the indictment:

Q: Now, so of those, let’s say, 138 people, you talked to six people that you
can remember?

A: Off the top of my head, yes. But I think, in total, I spoke with around 10
myself.

[3 RR 108]

Ms. Haden admitted that TMIC was just guessing about the amount of time

APPELLANT’S BRIEF PAGE 15 OF 39
 actually spent during the FCEs:

Q: You don’t know the exact amount of time that was spent in an FCE for
somebody you didn’t talk to you, do you?

A: No, I do not.

[3 RR 112]

Q: So is there a -- there’s three columns, one for you giving credit to the
healthcare provider [NTME] for 2 units, correct?

A: Yes.

Q: And another column giving them 4 units of credit, correct?

A: Yes.

Q: And the third column is giving them no credits, correct?

A: Well, the third column is the actual amount they charged and the actual
amount we paid.

Q: So it’s based on 16 units?

A: Correct.

Q: So in the columns where you give the healthcare provider 2 units of credit
and 4 units of credit – look for Mr. Ettinger.

A: Okay.

Q: Do you know how much time was actually spent on Mr. Ettinger’s FCE?

A: I would have to review my interview summary.

Q: Okay. But the number assigned to his FCE in those two columns may not
be the actual amount of time he spent on his FCE, correct?

A: It’s possible, if we did the calculation for every single patient, giving credit

APPELLANT’S BRIEF PAGE 16 OF 39
 for 2 units or giving credit for an hour.

[3 RR 114-15] Ms. Haden resisted stating the obvious about the State’s calculations:

that TMIC (in other words, the State) was just guessing:

Q: Right. So the ones where you give [NTME] credit for 2 units and 4 units,
that’s your hypothetical, correct?

A: It’s not a hypothetical. It’s based on the results of our investigation.

Q: Well, for Mr. Ettinger, it’s hypothetical because it’s not the actual time he
told you, is it?

Q: On your chart, it does not reflect the actual amount of time that Mr.
Ettinger spent in his FCE, does it?

A: No. There is not a column with that information in it.

Q: You just decide a figure, based on your analysis, that it could have taken 2
units or it could have taken 4 units?

A: I didn’t actually do the calculations, but that’s what the spreadsheet
reflects. We did calculations for giving credit of 2 units and calculations for
giving credit of 4 units.

Q: So at least as far as you’re concerned, of the 147 entries in the indictment,
you don’t know how much time was spent on each one of their FCE’s do you?

A; On every single patient, no.

[3 RR 115-16 (emphasis added)] Rather, Ms. Haden admitted that she would only

know the specific amount of time expended on the FCE’s for those patients that she

spoke with, personally, which was less than ten people. [3 RR, 108- 116]

TMIC even paid a claim for Bonita Reid, which was set up as a false claim

pursuant to TMIC’s undercover investigation:

APPELLANT’S BRIEF PAGE 17 OF 39
 Q: And how much did you pay her for it?

A: We paid for 16 units.

Q: And why did you do that?

A: That’s part of our undercover operation. It needs to appear as a normal
claim.

[3 RR 129-30]

Even the State’s bank records, which showed payments from TMIC to NTME,

cannot identify the actual amounts paid to NTME for allegedly fraudulent invoices:

Q: So all you can tell from Exhibits 15A and 15B is these were checks from
Texas Mutual Insurance Company that were deposited in a North Texas
Medical Evaluators bank?

A: Yes, sir.

Q: Okay. Ms. [Wendy] Rasmussen, did you check to see what services relate
to these deposits – what medical services relate to these deposits?

A: No, sir. I had the bank records. And I transferred the information on the
bank records into a spreadsheet.

Q: Okay. So there is no way for you to tell, from Exhibits 15A and 15B,
whether these payments are for FCEs or for some other service, correct?
A: No, sir.

Q: Okay. And you don’t know if North Texas Medical Evaluators billed
Texas Mutual Insurance Company for any other services, besides FCEs, do
you?

A: No, sir.

[3 RR 174] No other witness testified that TMIC was billed by NTME only for

FCEs, nor did any witness testify that TMIC only paid for allegedly fraudulent FCEs.

APPELLANT’S BRIEF PAGE 18 OF 39
 William Muhr, TMIC’s senior fraud investigator, also participated in the

investigation of NTME. Mr. Muhr stated that he spoke – either by telephone or in

person -- with approximately nine of the workers who had FCEs performed. [3 RR

186] However, Mr. Muhr could only identify the names of two of those people

during trial. [3 RR 186-87] Mr. Muhr also admitted that there was no rhyme nor

reason behind which people he actually spoke with:

Q: Okay. You didn’t try to talk to everybody, did you?

A: No, I did not.

Q: What determined who you tried to talk to?

A: There was no stipulation, just call people and find out how long the
examination took.

[3 RR 188]

As a result, the State’s investigator gave several different hypothetical

amounts that could have constituted the amount of TMIC’s property that was based

on alleged fraud; the State certainly did not know. [3 RR108-16; State’s Ex. 5]

The State not only had to guess at the length of the actual FCEs, but it also had to

admit that a portion of each test was legitimate and, therefore, not all of the payment

was secured by alleged deception; rather, at least a portion of each document was

based on legitimate entitlement to payment.

There is no question that a portion of each check paid by TMIC to NTME,

and each invoice from NTME on which those checks were based, included billing

APPELLANT’S BRIEF PAGE 19 OF 39
and payment for services that were actually and properly earned by NTME [ ].

The State simply never bothered to accurately segregate the amount of the checks

that were procured lawfully, and without deception, from the amount of the checks

that allegedly were induced by Appellant’s purported deception. As a result, the

testimony showed that the State’s statistical underpinnings that allegedly made up

its proposed amount of purported fraud were clearly based on convenient and

rudimentary math and not on actual conduct. In other words, the jury was simply

guessing about the amounts of the documents that allegedly were secured by

deception.

Circumstantial evidence alone can be sufficient to establish guilt. Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Juries are permitted to draw

multiple reasonable inferences as long as each inference is supported by the evidence

presented at trial, but juries are not permitted to come to conclusions based on mere

speculation or factually unsupported inferences or presumptions. See, e.g., Megan

Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013). “‘[A]n inference is a

conclusion reached by considering other facts and deducing a logical consequence

from them,’ while ‘[s]peculation is mere theorizing or guessing about the possible

meaning of facts and evidence presented.’” Id. (quoting Hooper, 214 S.W.3d at 16).

A conclusion reached by speculation is not sufficiently based on facts or evidence to

support a finding beyond a reasonable doubt. Id. (citing Hooper, 214 S.W.3d at 16).

APPELLANT’S BRIEF PAGE 20 OF 39
If the evidence presented at trial raises only a suspicion of guilt, even a strong one,

then that evidence is insufficient to convict. Richard Winfrey v. State, 323 S.W.3d

875, 882 (Tex. Crim. App. 2010). In circumstantial evidence cases, it is unnecessary

for every fact to point directly and independently to the defendant‘s guilt; it is

enough if the finding of guilt is warranted by the cumulative force of all of the

incriminating circumstances. Megan Winfrey, 393 S.W.3d at 778; Temple v. State,

390 S.W.3d 341, 359 (Tex. Crim. App. 2013).

An alternative - but equally fatal for the State - way of viewing this issue is

to argue that the evidence was legally insufficient to show that TMIC’s pecuniary

interest had a value of $20,000 or more but less than $100,000. Section 32.46 of

the Texas Penal Code, regarding securing execution of a document by deception,

does not define the term “pecuniary interest.” See Tex. Penal Code Ann., Sec.

32.46(a)(1). Thus, the term is to be given its plain and ordinary meaning. See

Goldstein, 803 S.W.2d at 791. The Dallas court of appeals has stated that

“pecuniary” is a synonym for “financial” and that “pecuniary interest” means a

direct interest related to money. Fisher v. State, 803 S.W.2d 828, 830 (Tex.

App.—Dallas 1991, pet. ref’d).

Logic demands that the State bear the burden of segregating the valid work

from the allegedly fraudulent work. See Sowders v. State, 693 S.W.2d 448, 450

(Tex. Crim. App. 1985) (when the State alleges an exact value for stolen property, it

APPELLANT’S BRIEF PAGE 21 OF 39
need not prove the exact value pled, but must only prove a value sufficient to satisfy

the jurisdictional requirement of the State’s pleading). See Nitcholas v. State, 524

S.W.2d 689, 691 (Tex. Crim. App. 1975).

Because the State failed to fully segregate the properly billed amounts from the

amounts that were based on alleged deception or fraud, there was no legally

sufficient evidence to establish the jurisdictional limits of this offense, and the State

failed to satisfy its burden. Sowders, 693 S.W.2d at 450; Nitcholas, 524 S.W.2d at

691. See Lehman, 792 S.W.2d at 84; Simmons, 109 S.W.3d at 472. See also Lee, 29

S.W.3d at 75. To hold otherwise would allow the jury to convict Appellant on

conduct that was decidedly not fraudulent or deceptive. Rather, the jury had to

speculate as to the amounts that were proper by giving “credits” to NTME. See

Lehman, 792 S.W.2d at 84; Simmons, 109 S.W.3d at 472. See also Lee, 29 S.W.3d

at 75.

4. A fatal variance existed between the State’s
pleading and proof regarding the form HCFA 1500.

The undisputed evidence established that the actual form submitted by NTME,

and on which TMIC based its decision to pay NTME, was a CFS form, not an HCFA

1500 form. [3 RR14, 16, 27; State’s Exhibit 3]

The variance at issue is a non-statutory fact defining an allowable unit of

prosecution. See Fuller v. State, 73 S.W.3d 250, 257 (Tex. 2002) (Keller, P.J.,

concurring). The question is the method by which Appellant is alleged to have

APPELLANT’S BRIEF PAGE 22 OF 39
committed an act of deception on which TMIC relied when executing a document.

The testimony of Lena Shockley, NTME’s office manager, illustrates that Appellant

did not know why NTME’s claims were being denied. [5 RR 60-68] Therefore,

this Court should not conclude that the variance was immaterial; rather, this Court

should enter a judgment of acquittal on this charge. Id., at 257.

ISSUE TWO

The trial court erred in refusing to admit evidence that TMIC
provided funding to the State’s prosecutors who prosecuted Appellant.

A. A financial relationship exists between the State and TMIC.

A financial relationship existed between the Travis County Criminal District

Attorney’s Office, and particularly with respect to the two prosecutors who handled

this case against Appellant, and the alleged victim, Texas Mutual insurance

Company (“TMIC”). TMIC pays for the salaries of two prosecutors, one paralegal

and one part-time staff within the Workers’ Compensation Fraud Unit of the DA’s

Public Integrity Unit. [5 RR 60-68] As a result, TMIC, the alleged victim in this

case, actually pays the salaries of the two prosecutors – Ms. Donna Crosby and Ms.

Meg Brooks – who prosecuted Appellant for this matter.

That financial relationship should have been disclosed to Appellant’s counsel

before trial. Furthermore, when Appellant’s counsel learned that the purported

“victim” of Appellant’s alleged misconduct had funded the very staff that

APPELLANT’S BRIEF PAGE 23 OF 39
prosecuted Appellant for this case, Appellant was entitled to present evidence to the

jury of the financial relationship between TMIC and the State.

Based on the discovery of this information, Defendant’s counsel informed the

trial court of his desire to question Ms. Crosby, in front of the jury, about the

financial relationship between TMIC and the DA’s Office. [5 RR 60-83] However,

the trial court denied Appellant the right to present evidence to the jury of the

financial relationship between TMIC and the State. [5 RR 83]

By refusing to permit Appellant to present such evidence to the jury, the trial

court committed reversible error.

1. Appellant first learned of a financial relationship
between State and TMIC during trial.

At some point during the trial, and for reasons that Appellant’s counsel cannot

specifically recall, Appellant’s counsel asked Ms. Donna Crosby, the lead attorney

for the State, if there was some sort of relationship between TMIC and the Travis

County Criminal District Attorney’s Office (“DA’s Office”). The record does not

reflect whether Appellant’s counsel asked Ms. Crosby specifically if TMIC

provided funding to the DA’s Office, or if he asked her a more general question that

led to Ms. Crosby’s eventual revelation that TMIC provides financial funding to the

DA’s office to prosecute allegations of worker’s compensation fraud. Before that

moment during trial, neither Ms. Crosby nor any other person representing the State

had ever revealed to Appellant’s counsel that TMIC provides funding to the DA’s

APPELLANT’S BRIEF PAGE 24 OF 39
office specifically for the salaries of Ms. Crosby and Ms. Brooks, and for the

salaries of any other employees of the DA’s office. [5 RR 60-68]

Before calling one of the State’s witnesses out of order, and after the State had

initially rested, State’s attorney Donna Crosby informed the Court about

Appellant’s counsel’s desire to call Ms. Crosby as a witness at trial:

Ms. Crosby (to Court):. [Defense] Counsel has indicated that he wants to call
me as a witness. I would request that be outside the hearing of the jury.

Court: That’s fine.

[5 RR 4]

After testimony from other witnesses, the trial court excused the jury and

allowed testimony from Ms. Crosby regarding the State’s unusual (and previously

undisclosed) relationship with TMIC:

Appellant’s counsel (“Q”): And what division are you assigned to, or what
section of the DA’s office are you assigned to?

Ms. Crosby (“A”): The Public Integrity Unit.

Q: And how long have you been in that unit?

A: Oh, I’d be guessing, but I’d say the bulk of my time in the DA’s office has
been in the Public Integrity Unit.

Q: Now, you indicated to me that Texas Mutual Insurance Company provides
funding for your position. Did I understand that correctly?

A: My division.

Q: Can you tell me how Texas Mutual Insurance Company provides funding
for your division?

APPELLANT’S BRIEF PAGE 25 OF 39
 A: I really don’t know, because I don’t get myself involved in that process. I
think that they deal with our admin people. Our admin people deal with
whatever budget we’re going to have, and they get that budget cleared with
whoever they deal with over at TMI.

Q: What do you mean they get with budget people at TMI?

A: Well, TMI pays for the unit, but the administrative division of our office
deals with that issue. I don’t ever get involved in budget issues.

Q: Is it your understanding that Texas Mutual Insurance Company pays for
the entire Public Integrity Unit?

A: No, not for the entire Public Integrity Unit.

Q: What is your understanding of what they pay for?

A: That would be speculation. All I know is that they pay for the unit, that
being Worker’s Comp Fraud Unit.

Q: Well, who is in the Worker’s Comp Fraud Unit?

A: Well, my question – because I think it was a very broad question, and I’m
trying to figure out – because I don’t want to give misinformation.

Court: Are you asking how many attorneys work –

Q: I’m asking how many staff or attorneys are in the Worker’s Comp Fraud
Unit that Texas Mutual Insurance Company pays for.

A: Okay. There are two attorneys, currently a paralegal. And I think we still
have a position open for a part-time office specialist. And I said “I think”
because that particular position may change.

Q: And do you know how much it is – how much money it is each year that
Texas Mutual Insurance Company provides?

A: No.

APPELLANT’S BRIEF PAGE 26 OF 39
 Q: But my question is: Of those three-and-a-half people, Texas Mutual
Insurance Company provides 100 percent of the financing for them?

A: That could be true, but with a qualifier. There are other people who assist
me, too, that are not funded by Texas Mutual.

Q: And do you prosecute workers’ comp fraud cases when the carrier is
different than Texas Mutual Insurance Company?

A: I have in the past. And I will do so in the future, if it’s a situation where
we can prosecute it.

Q: What percentage of your time do you think you spend on cases in which
Texas Mutual Insurance Company is the victim, or the alleged victim, of
insurance fraud?

A: So it depends on which case I’m working on at any particular time. . . . .
But, if I had to do percentages this year, I think the bulk of my time this year has
been spent on Texas Mutual cases. . . .

Q: Have you ever prosecuted – I don’t mean go to trial, but have you ever
prosecuted a case in which Texas Mutual Insurance Company was not at least
one of the alleged victims? In other words, in all your cases, is Texas Mutual
always involved in the workers’ comp fraud cases?

A: With regard to workers’ comp fraud, if I’m understanding your question, I
have worked with other carriers, but I wouldn’t say that it’s the bulk of my
workload. . . .

Q: When you work with other carriers, is Texas Mutual Insurance Company
always involved in those cases, also.

A: I believe so.

Q: With the exception of that case that you tried, when you prosecute
workers’ compensation fraud case, is Texas Mutual Insurance Company
always one of the alleged victims in that case?

A: Yes, one of the alleged victims, but there could be other victims.

APPELLANT’S BRIEF PAGE 27 OF 39
 Q: And how long has Texas Mutual Insurance Company been providing
funding for your division.

A: Since it’s inception.

Q: Since the inception of the unit?

A: Yes. In fact, I started the unit.

Q: So when did you start the Workers’ Comp Fraud Unit?

A: I don’t know. I think I’ve been doing it about 14 years.

Q: And Texas Mutual Insurance Company has always provided funding at
that time?

A: Yes.

Q: And the Workers’ Comp Fraud Unit is a subsection of the Public Integrity
Unit?

A: Yes.

[5 RR 60-68] Ms. Crosby also testified that she presents her cases to the Grand

Jury. [5 RR 70]

Following brief direct examination of Ms. Crosby by her co-counsel, the trial

court had a long discussion with all counsel regarding whether the information

about the financial relationship between TMIC and the Travis County Criminal

District Attorney’s Workers’ Compensation Fraud Unit – as revealed by Ms.

Crosby during her testimony – should be presented to the jury. [5 RR 70- 83]

Appellant’s counsel argued that such information was highly relevant to the case

and should be admitted:

APPELLANT’S BRIEF PAGE 28 OF 39
 Appellant’s counsel: Judge, I’ll tell you, I tried to subpoena the General
Counsel of Texas Mutual Insurance Company. She’s out of the country. I
didn’t know this information, until Monday or Tuesday. It somehow came out
in our discussion.

Ms. Crosby: It’s not something I would hide, so I just told you.

Appellant’s counsel: Well, it’s certainly exculpatory, and the jury should
know this information. It’s certainly relevant. If it’s not exculpatory, it
certainly is relevant to the motivation of this lawsuit.

Court: Well, it’s certainly is not exculpatory.

Appellant’s counsel: It’s not exculpatory. It’s relevant. I guess it could be
considered exculpatory, if the jury believes that it diminishes the reasons why
this case is brought in the first place. And that’s going to fit into my
argument. I promise you that. So I think it should come in. It’s absolutely
relevant. I’ve never heard it happen in any other criminal case, where you
have the alleged victim providing the funding for the prosecutors who are
bringing the case against your client. That just doesn’t happen, outside of this
context. And it’s not something that was available from Texas Mutual’s
website, or from any of the blurbs on the blogs or press releases that they issue
on their various successes from Ms. Crosby on behalf of the Texas Mutual
Insurance Company. It was not clear to me that there was that connection. So
I didn’t find about it, until Monday or Tuesday [trial started on Monday].

Court: All right. So you think that it’s important to get in front of the jury
the fact that the prosecutor is paid her salary, basically, by virtue of Texas
Mutual Insurance?

Appellant’s counsel: Not only that they pay her salary, but that the majority
of cases she works on, the vast majority of the cases she works on, include
Texas Mutual Insurance Company as one of the alleged victims.

[5 RR 68–73] The parties argued strenuously over whether information about the

State’s financial relationship with the alleged victim, TMIC, should be admitted

into evidence:

APPELLANT’S BRIEF PAGE 29 OF 39
 Ms. Crosby: Well, how is that relevant as to whether or not he committed the
crime?

Court: Right. I guess that’s the issue.

Appellant’s counsel: I don’t mean any offense, but I certainly can make the
argument: If you’ve got your own counsel, who can come and use the threat
of criminal prosecution, as opposed to just a civil fraud case, as your attorney,
because you’re paying for them, you are supporting this unit, that is powerful
information that the jury ought to find out.

Ms. Crosby: I work for the DA’s office. I don’t work for Texas Mutual.

Appellant’s counsel: And she gets to tell them that, Your Honor. But they
ought to at least have that information to say: Hey, if the only tool in the
toolbox is a hammer, maybe everybody looks like a nail. You know, if
they’ve got somebody who is willing to use criminal prosecution as a threat to
these folks out here who are doing stuff, that’s a pretty powerful incentive.

[5 RR 73-74]

The Court stated that he would not permit such information to be admitted in

front of the jury, even if Appellant tried to call a witness other than the prosecutor,

Ms. Crosby, to testify about the relationship between TMIC and the State:

Appellant’s counsel: So you’re granting the State’s motion to exclude any
evidence about the relationship between the DA’s office and Texas Mutual
Insurance Company, in which Texas Mutual Insurance Company provides
funding for two prosecutors and one paralegal and a part-time person in the
Workers’ Comp Fraud Unit?

Court: It does seem to me that it is irrelevant. And in terms of Rule 401, it’s
not relevant. Also, even if relevant, it clearly is a violation of 403, so I will be
excluding that.

[5 RR 77-83]

2. Ethical standards prohibiting conflicts of interest between State

APPELLANT’S BRIEF PAGE 30 OF 39
 and an alleged victim made TMIC’s relationship relevant.

The American Bar Association (“ABA”) Criminal Justice Standards.

According to these standards:

If the law of the jurisdiction permits the acceptance of financial or resource
assistance from non-governmental sources, the decision to accept such
assistance should be made with caution by the chief public prosecutor or an
accountable designee after careful consideration of:

(i) The extent to which the law of the jurisdiction permits the acceptance of
financial or resource assistance;

(ii) The extent to which the offer is in the public interest, as opposed to an
effort to achieve the limited private interests of the non-governmental
sources;

(iii) The extent to which acceptance may result in foregoing other cases;

(iv) The potential adverse impact on the equal administration of the criminal
law;

(v) The extent to which the character and magnitude of the assistance might
unduly influence the prosecutor’s subsequent exercise of investigative
and prosecutorial discretion;

(vi) The likelihood that the community may view accepting the assistance as
inconsistent with the fair and equal administration of criminal justice;

(vii) The likelihood that accepting assistance from private sources may
create an appearance of undue influence over law enforcement; and

(viii) The extent to which financial or resource assistance would enhance or
enable the investigation of criminal activity.

Standards, Section 2.17(b), a true and correct copy of which is attached hereto as

Appendix 1.

APPELLANT’S BRIEF PAGE 31 OF 39
 The ABA’s Standards go on to state:

The prosecutor, consistent with the law of the jurisdiction, should disclose
significant non-governmental assistance to relevant legislative or public
bodies having oversight over the prosecutor’s office and, when appropriate,
the public.

ABA Standards, Section 2.17(e) (emphasis added).

More importantly, the ABA Standards also state:

Non-governmental assistance should be disclosed to affected parties as part of
the discovery process.

ABA Standards, Section 2.17(f) (emphasis added).

The actions of the State in accepting a grant from TMIC to fund the very

prosecution at issue in this case essentially constitutes an improper delegation of the

prosecutor’s public duties to a private attorney for TMIC. Even though Ms. Crosby

is, ostensibly, an employee of the DA’s office and not of TMIC, it is clear that a

primary part of her duties as a prosecutor for the Travis County Criminal District

Attorney’s Office is to prosecute allegations of fraud against TMIC. (TMIC is

always a “victim” in cases that Ms. Crosby prosecutes involving workers’

compensation fraud).

The decisions made by a prosecutor in setting enforcement priorities have far

reaching impact on commerce, politics, and the everyday lives of those who must

order their conduct and behave accordingly. Roger A. Fairfax, Jr., “Delegation of

the Criminal Prosecution Function to Private Actors,” 43 University of California-

APPELLANT’S BRIEF PAGE 32 OF 39
Davis L. J. 411, 428 (2009). Prosecutorial decisions regarding whether and what to

investigate and what tactics and tools to use in the course of an investigation can

have grave consequences for those who fall under the government’s scrutiny. Id.

Virtually all of the decisions made by a prosecutor to prosecute an individual

for alleged criminal activity are, “for the most part, unreviewable.” Id., at p. 429.

As a result, a public prosecutor has a remarkable impact on the lives and liberty of

those in society who fall within the law’s mandates. Id., at p. 430. The United

States Supreme Court observed the unique position of the public prosecutor in

Berger v. United States:

The United States attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as the obligation to govern at all; and whose interest, therefore, in
a criminal prosecution is not that it shall win a case, but that justice shall be
done.

295 U.S. 78, 88 (1935). Fifty years after its decision in Berger, the Supreme Court

affirmed the obligation of a public prosecutor to strive toward justice above all else:

Between the private life of the citizen and the public glare of criminal
accusation stands the prosecutor. That state official has the power to employ
the full machinery of the state in scrutinizing any given individual. Even if a
defendant is ultimately acquitted, forced immersion in criminal investigation
and adjudication is a wrenching disruption of everyday life. For this reason,
we must have assurance that those who would wield this power will be guided
solely by their sense of public responsibility for the attainment of justice.

Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987)

(emphasis added).

APPELLANT’S BRIEF PAGE 33 OF 39
 According to Professor Fairfax, the impartiality to be exercised by a public

prosecutor constitutes a bedrock principle of our criminal justice system:

[T]he public prosecution norm – the notion that criminal prosecution authority
properly rests exclusively with the state – is a source of legitimacy for the
criminal justice system. The fact that prosecutions are brought not in the
name of an individual but in the name of the state both requires and produces
public confidence in the criminal process. In the same vein, that the actor
wielding criminal prosecutorial authority is a public lawyer is of tremendous
significance.

Fairfax, “Delegation,” 43 UC-Davis L. J. at p. 433. As Professor Fairfax stated,

“[I]t does not take much imagination to envision the potential for corruption and

conflicts of interest when a lawyer who controls the tremendous power of criminal

investigation and prosecution also represents private clients.” Id., at p. 438 (citation

omitted).

Professor Fairfax’s article addressed the potential for conflicts of interest in a

jurisdiction that permits its public prosecutor to maintain a part-time private

practice, which is not the case here. See Id., at p. 413. However, the facts, adduced

outside the presence of the jury during the middle of trial, and discovered by

Appellant’s counsel quite by accident, reveals that the State has a unique financial

arrangement with the alleged “victim,” TMIC, and should be treated as if the State

acted in this case as TMIC’s private counsel.

It follows that if an alleged crime victim provides financial support to a state

prosecuting authority, a defendant who is being prosecuted by that state prosecuting

APPELLANT’S BRIEF PAGE 34 OF 39
 authority should: (1) be informed prior to trial of the financial relationship between

the alleged crime victim and the prosecutor; and (2) be permitted to adduce

evidence at trial of the financial relationship between the prosecutor and the alleged

crime victim.

Such information is not only relevant; it may be among the MOST relevant

information in the case.

3. Trial court committed harmful error by refusing
to permit Defendant to present evidence of
the relationship between the State and TMIC.

Evidentiary rulings admitting or excluding evidence are committed to the trial

court’s sound discretion. Reasonable minds can differ on issues such as the

relevance of a particular piece of evidence, and as long as the trial court’s ruling was

at least within the zone of reasonable disagreement, an appellate court should not

substitute its reasonable perception for that of the trial judge. See Montgomery v.

State, 810 S.W.2d 272, 291 (Tex.Crim.App. 1990) (op’n on rehearing).

In this case, the trial court’s exclusion of evidence about the financial

relationship between the State and TMIC, the alleged victim, was painfully relevant.

The jury should have been allowed to know that TMIC paid the salaries of the two

prosecutors who were prosecuting Appellant for his alleged fraudulent conduct

against TMIC, especially when in-house fraud investigators from TMIC, rather than

an independent law enforcement agency, had conducted the investigation that led to

APPELLANT’S BRIEF PAGE 35 OF 39
Appellant being indicted by Ms. Crosby, who testified that she presents her own

cases to the Grand Jury. A jury reasonably could have inferred that the DA’s office

acted as the personal attorneys for TMIC with respect to this case, and such a

revelation would have complemented Appellant’s argument that TMIC was strong-

arming Appellant because it did not want to compensate him for the full 16 units that

Appellant believed was compensable.

The State should have disclosed information about its financial

relationship with TMIC to Appellant well before trial, but the trial court certainly

should have allowed Appellant to present to the jury evidence of the relationship

between TMIC and the two prosecutors who brought this case.

No judgment may be reversed on appeal on the ground that the trial court

made an error of law unless the error complained of probably caused the rendition of

an improper judgment. Tex. R. App. P. 44.1(a)(1). See Horizon/CMS Healthcare

Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); Beam v. A.H. Chaney, Inc., 56

S.W.3d 920, 924 (Tex. App.—Fort Worth 2001, pet. denied) (court found no harmful

error after holding that evidence should have been excluded pursuant to Rule

193.6[a]).

The trial courts exclusion of any testimony regarding the financial relationship

between TMIC and the State constituted harmful error, and this matter should be

reversed and remanded for a new trial.

APPELLANT’S BRIEF PAGE 36 OF 39
 IV.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant Howard Thomas

Douglas moves this Court to reverse the verdict and judgment of the trial court and

render a verdict of not guilty in favor of Appellant,; or, in the alternative, find that

the trial court erred in excluding evidence of the financial relationship between the

State and the alleged victim, and remand this matter to the trial court for a new

trial.

Respectfully submitted,

/S/ Craig M. Price
Craig M. Price
State Bar No. 16284170
cmp@hammerle.com
Hammerle Finley Law Firm
2871 Lake Vista Dr., Suite 150
Lewisville, Texas 75067
Tel: (972) 436-9300
Fax: (972) 436-9000
Attorney for Appellant

APPELLANT’S BRIEF PAGE 37 OF 39
 CERTIFICATE OF SERVICE

This is to certify that on April 23, 2015, a true and correct copy of the

above and foregoing document was served on the District Attorney's Office,

Travis County, PO Box 1748, Austin, Texas 78767, by electronic e-service.

/S/ Craig M. Price
Craig M. Price

CERTIFICATE OF COMPLIANCE

The undersigned counsel hereby certifies, pursuant to Tex. R. App.

9.4(i)(4), that the foregoing Appellant’s Brief contains a total of 11, 395

words.

/S/ Craig M. Price
Craig M. Price

APPELLANT’S BRIEF PAGE 38 OF 39
 APPENDIX

1. Judgment of Conviction by Jury

2. Charge of the Court

3. ABA Standards on Prosecutorial Investigations

APPELLANT’S BRIEF PAGE 39 OF 39
 CASE No, D-1-DC-12-900059 couNT I
INCIDENT NO./TRN: 0119803593
~r

THE.STATE OF TEXAS § IN THE 33JST DISTRICT
§
V. § COURT
§
HOWARD THOMAS DOUGLAS § TRAVIS COUNTY, TEXAS
§
STATE lD No.: TX05456675 §

JUDGMENT OF CONVICTION BY JURY
Judge Presiding: HoN. BOB PERKINS Entered:
6/19/2014
Attorney for
Attorney for State: DONNA CROSBY Defendant:
CRAIG PRICE
Offense for which Defendant Convicted:
SECURING EXECUTION OF A DOCUMENT BY DECEPTION
Charging Instrument: Statute for Offense:
INDICTMENT 32.46 (b)(5) Penal Code
Date of Offense:
12/20/2007 THROUGH 12/16/2009
Degree of Offense: Plea to Offense:
3RD DEGREE FELONY NOT GUILTY
Verdict of Jury: Findings on Deadly Weapon:
GUILTY N/A
Plea to 1•• Enhancement Plea to 2nd Enhancement/Habitual
Paragraph: NIA Paragraph: N/A
Findings on 1•• Enhancement Findings on znd
Paragraph: __N/~ Enhancement/Habitual Paragraph: N/A
Punished Assessed by: Date Sentence Imposed: Date Sentence to Commence:
COURT 6/19/2014 6/19/2014
Punishment and Place
FIVE (5) YEARS INSTITUTIONAL DIVISION, TDCJ
THIS SENTENCE SHALL RUN CONCURRENTLY.
SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMlJNI'l'Y SUPERVISION FOR
Court Costs: Restitution Payable to:
-------
$ $354.00 $ 0 VICTIM (see below) [83 AGENCY/AGENT (see below)
~ Attachment A, Order to Withdraw Funds, is incorporated into this judgment and made a part _hereof.
Sex Offender Registration Requirements do not apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62.
The age of the victim at the time of the offense was N/A .
If Defendant is to serve sentence in TDCJ. enter incarceration periods in chronological order.
From 6/6/2013 to 61812013 From to From to
Time From to From to From to
Credited:
If Defendant is to serve sentence in county jail or is given credit toward fine and costs. enter days credited below.
N/A DAYS NOTES: N/A
All pertinent information, names and assessments indicated above are incorporated into the language of the judgment below by reference.
This cause was called for trial in Travis County, Texas. The State appeared by her District Attorney.
Counsel/ Waiver of Counsel (select oruD
IX! Defendant appeared in person with Counsel.
0 Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court.
It appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging
instrument. Both parties announced ready for trial. A jury was selected, impaneled, and sworn. The INDICTMENT was read to the
jury, and Defendant entered a plea to the charged offense. The Court received the plea and entered it of record.
The jury heard the evidence submitt.ed and argument of counsel. The Court charged the jury as to its duty to determine the
guilt or innocence of Defendant, and the jury retired to consider the evidence. Upon returning to open court, the jury delivered its
verdict in the presence of Defendant and defense counsel, if any.
190
Judgment_of_Convict>on_by _Jury doc
APPENDIX 1
Page I of2
 I
~

The Court received the verdict and ORDERED it entered upon the minutes of the Court
Punishment Assessed by Jury I Court I No election_{select one)
0 Jury. Dlrt'endant entered a plea and filed a written election to have the jury assess punishment. The jmy heard evidence relative to
the q~stion of ptmishment. The Court charged the jury and it retired to consider the question of punishment. After due deliberation,
the jury was brought into Court, and. in open court, it returned ita verdict as indicated above.
~ Court. Defendant elected to have the Court assess punishment. After hearing evidence relative to the question of punishment, the
Court assessed Defendant's punishment as indicated above.
0 No Election. Defendant did not file a written election as to whether the judge or jury should assess punishment. After hearing
evidence relative to the question of punishment, the Court assessed Defendant's punishment as indicated above.
The Court FINDS Defendant committed the above offense and ORDERS, ADJUDGES AND DECREES that Defendant is
GUILTY of the above offense. The Court FINDS the Presentence Investigation, if so ordered, was done according to the applicable
provisions of TEX. CODE CRIM. PROC. art. 42 . 12 § 9.
The Court ORDERS Defendant punished as indicated above. The Court ORDERS Defendant to pay all fines, court costs, and
restitution as indicated above.
Punishment Options (select one)
fSI Confinement in State Jail or Institutional Division. The Court ORDERS the authorized agent of the State of Texas or the
Sheriff of this Co1mty to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The Court
ORDERS Defendant to be confined for the period and in the manner indicated above. The Court ORDERS Defendant remanded to the
custody of the Sheriff of this county until the Sheriff can obey the directions of this sentence . The Court ORDERS that upon release
from confinement, Defendant proceed immediately to the TRAVTS COUNTY DISTRICT CLERK'S OFFICE, 509 WEST 11TH ST.
SUITE 1.400. Once there, the Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court
costs, and restitution as ordered by the Court above
0 County Jail-Confinement I Confinement in Lieu of Payment. The C,ourt ORDERS Defendant immediately committed to
the custody of the Sheriff of Travis County, Texas on the date the sentence is to commence. Defendant shall be confined in the
Travis County Jail for the period indicated above. The Court ORDERS that upon release from confinement, Defendant shall proceed
immediately to the TRAVIS COUNTY SHERIFF'S BONDING OFFICE, 509 WEST 11TH ST. SUITE 1.600. Once there, the C..ourt
ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the
Court above.
0 Fine Only Payment. The punishment assessed against Defendant is for a FINE ONLY. The Court ORDERS Defendant to proceed
immediately to the Office of the Travis County Sheriff. Once there, the Court ORDERS Defendant to pay or make arrangements to
pay all fines and court costs as ordered by the Court in this cause.
Execution I Suspension of Sentence (select one)
~ The Court ORDERS Defendant's sentence EXECUTED.
0 The Court ORDERS Defendant's sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on community
supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and conditions of
community supervision. The order setting forth the terms and conditions of community supervision is incorporated into this
judgment by reference.
The Court ORDERS that Defendant is given credit noted above on this sentence for the time spent incarcerated.
Furthermore, the following special findings or orders a.IH!~

Signed and entered on .June 23, 2014 x-d-~-
331ST
JUDGE PRESIDING

Clerk: MM

Right Thumbprint

191
Judgment_of_Convlction_by _Jury doc !'nge 2 of2
 DC BK14139 PG346

DlDC 12 900059

THE STATE OF TEXAS )( IN THE 33lst DISTRICT

vs. )( COURT OF

HOWARD THOMAS DOUGLAS )( TRAVIS COUNTY, TEXAS

CHARGE OF THE COURT

Ladies and Gentlemen of the Jury:

The defendant, HOWARD THOMAS DOUGLAS, stands charged by indictment with the
offense of securing execution of document by deception, alleged to have been committed in
Travis County, Texas, beginning on or about the 201h day of December, 2007, and continuing
to on or about the 161h day of December, 2009. To this charge the defendant has pleaded not
guilty. You are instructed that the law applicable to this case is as follows:

I.

A person commits the offense of securing the execution of a document by deception if,
with intent to defraud or harm any person, he, by deception, causes another to sign or execute
any document affecting property or service or the pecuniary interest of any person.

II.

"Deception" means creating or confirming by words or conduct a false impression oflaw
or fact that is likely to affect the judgment of another, in the transaction, and that the
defendant does not believe to be tme;
III.

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a
result of his conduct when it is his conscious objective or desire to engage in the conduct or
cause the result.

IV.

A person is criminally responsible if the result would not have occurred but for his
conduct, operating either alone or concurrently with another cause, unless the concurrent
cause was clearly sufficient to produce the result and the conduct of the actor was clearly
insufficient.

A person is nevertheless criminally responsible for causing a result if the only difference
between what actually occurred and what he desired, contemplated, or risked is that:

( l) a different offense was committed; or

(2) a different person or property was injured, harmed, or otherwise affected.
Filed in The District Court
of Travis Co40ty, Texas

MAY 10201~
At ;:t·.oo~ .....
Amalia Rodriguez-Me;;{)za, Clerk
171
APPENDIX 2
 DC BK14139 PG347

v.
Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a
reasonable doubt, that the defendant, HOWARD THOMAS DOUGLAS as alleged in the
indictment, pursuant to one scheme or continuing course of conduct which began on or about
the 20th day of December , 2007 , and continuing to on or about the 16th day of December,
2009,in Travis County, Texas, said defendant did then and there with intent to defraud or
harm the TEXAS MUTUAL INSURANCE COMPANY, by deception create or confirm by
words or conduct a false impression of fact , to wit: the said Howard Thomas Douglas caused
to be submitted to the TEXAS MUTUAL INSURANCE COMPANY a form HCF A (Health
Care Financing Administration) 1500 seeking payment for services rendered , said services
were as follows: 16 units billed under CPT (current procedural terminology) code 97750,
when in fact, 16 units of service were not rendered in accordance with the Texas Department
of Insurance Division of Workers Compensation Medical Fee Guidelines not believing it to
be true, that was likely to affect the judgment of the said Texas Mutual Insurance Company in
the transaction, which deception caused the Texas Mutual Insurance Company to sign or
execute documents affecting its property, service or pecuniary interest, where the value of the
property, service or pecuniary interest was more than $20,000 but less than $100,000 and said
payments are of the tenor following:

172
 DC BK14139 PG348

Name Date of Service Ammmrnt Amount
or BCFA Date Charged Paid
VESS,CHUCK .3/20/2008 $612.00 $533.76

GILLINGHAM, MARK 5/26/2009 $612.00 $337.84

ESPARZA, JAVIER 3/13/2008 $612.00 $580.16

BlANTON, MARCUS 5/20/2008 $612.00 $592.32

BOOTH, CHAD L 2/8/2009 $612.00 $612.00

ETIINGER, BRAD 2/26/2008
- $612.00 $533.76

THOMAS, FRANIUE L 1/15/2009 $612.00 $612.00
-- .
BOLES, BARBARA 4128/2009 $612.00 $61,2.00

MORENO, ALBERT 5/8/2008 $612.00 $592.32
-
HARRISON, EUNICE 2/23/2009 $612.00 $612.00

WWERY, BilLY L. 1/22/2009 $612.00 $612.00

RODRIQUEZ, GUADAlUPE 4/22/2008 $612.00 $592.32

SHEEHAN, MICHAEL .5/1/2008 $612.00 $533.76

HEARD, LEE A. 4/9/2009 $612.00 $296.24

BITNER, JESSE 3/20/2008 $612.00 $592.32

LIEBEL, lAURIE 1/21/2009 $612.00 $612.00

POZOS, NICOLAS
-- 5/12/2008 $612.00 $592.32

PARKER, CHARLOTTE 6/10/2008 $612.00 $592.32

FIERRO, MACLOVIO V. 5/8/2008 $612.00 $592.32

GREASON, RICHARD 4/10/2008 $612.00 $612.00
--
DAVIS, PATRICK M. 2/26/2008 $612.00 $533.76

DOCKRAY, JERRY 3/9/2009 $612.00 $612.00
-·-
MCGAHEY, TERI 4/22!2008 $612.00 $592.32

TALLEY, JUSTIN 4/14/2008 $612.00 $592.32

SHORT, WENDELL R. 4/22/2008 $612.00 $222.12

SHORT, WENDELL R. 4/22!2008 $612.00. $370.36
....-----·-·
CHARLES, TONY 5/26/2009 $612.00 $612.00

17.3
 DC BK14139 PG349

THOMPSON, WILLIAM 5/12/2008 $612.00 $592.32

MERCER, JACKIE 4/14/2008 $612.00 $592.32

CAMACHO, JULIE 2/2/2009 $612.00 $612.00

WIL'lON, JAMES 3/3/2008 $612.00 $533.76

WHITE, LISA A. 5/20/2008 $612.00 $592.32
--
HEUAM, ROBERT L. 5!4!2009 $612.00 $490.44

ARMSTRONG, SHANA M. 2/26/2008 $612.00 $533.76

CLAYTON, FRANKLIN D. 2/12/2009 $612.00 $612.00

PAWLOWSKI, PIOTR 6/5/2008 $612.00 $592.32

GALLAMORE, CARNIE M 3/24/2008 $612.00 $533.76

GALLAMORE, CARNIE M 3/24/2008 $612.00 $533.76

MEDLEY, GARY 4/3/2008 $612.00 $592.32
--·
TIIOMAS, SHERMAN 5/13/2008 $612.00 $612.00

GROUNDS, GEORGE G 5/8/2008 $612.00 $592.32
--=-:-:-----·----·-
CALDWELL, JOHN 4/22/2008 $612.00 $592.32
r-·
MORQUECHO, CARMEN 5/8/2008 $612.00 $592.32

GOFF, TRICIA 5/20/2008 $612.00 $592.32

VASQUEZ, PEDRO 4/18/2009 $612.00 $612.00
·-
MILLER, MARVIN 5/8/2008 $612.00 $592.32

GONZALEZ, ROBERTO 4/14/2008 $612.00 $592.32

JOHNSON, CHARLES G. 6/17/2009 $612.00 $612.00

INFANTE, JULIAN 6/5/2008 $612.00 $592.32

FLORES, JANIE
- 3/25/2009 $612.00 $612.00

FARR,KEVIN 10/21/2008 $612.00 $592.32

WATSON, CHET 5/8/2008 $612.00 $592.32
·----
FALCON, SHANNA 4/14/2009 $612.00 $612.00
-
RAY, JAY 5/28/2008 $612.00 $.592.32

KINNAIRD, JANICE 2/23/2009 $612.00 $612.00

174
 DC BK14139 PG350

NARANJO, FRED 2!11/2009 $612.00 $612.00

BLACKSHIRE, RONALD 4/1.5/2009 $612.00 $612.00

STORME, RAYMOND 3/17/2009 $612.00 $612.00-

-ARREDONDO, RAMIRO D. 3/31/2009 $612.00 $612.00
--
MORA, ANTONIO 4/16/2009 $612.00 $612.00
·--·-
WILKERSON, TOMMY R. 4/15/2009 $612.00 $612.00

GUZMAN, ELIGIO 2/23/2009 $612.00 $519.60
-
COOK, FRANCES 3/26/2009 $612.00 $326.96
__.
,
--
RODRIGUES, RUDOLPH 6/15/2009 $612.00 $612.00

WASHBURN, TRACY W. 2/5/2009 $612.00 $612.00

HOLLAND, WILLIAM E 4/28/2009 $612.00 $612.00

BEAN, ROBERT N. 3/13/2009 $612.00 $326.96
--
...
1naoo9
~--

HUNNICUTI, CYNTHIA D. $612.00 $612.00

FYVIE, GARY M. 2/2/2009 $612.00 $612.00

MOTTA BERRIOS, CARLOS 5/12/2009 $612.00 $521.40

WEFFLER, RODNEY R. $612.00
- $612.00
2/23/2009

MUNGUIA, BARBARA L 51712009 $612.00 $612.00

ALTON, JAMES 5/14/2009 $612.00 $612.00

PARR, JOSEPH G 5/21/2009 $612.00 $612.00--

SIMPSON, MONTE L 2/26/2009 $612.00 $612.00

SMITH, KEITH W. 2/16/2009 $612.00 $612.00

KALA, PABLO JR 2/11/2009 $612.00 $612.00

THOMPSON, TIMMY R. 1/8/2009 $612.00 $612.00

JARAMILLO, EFRAIN 5/1/2009 $612.00 $612.00
-
ROSE, DELLRON K. 3/26/2009 $612.00 $612.00

OVALLE, CAMELIA R. 1/30/2009 $612.00 $612.00

COLBERT, MICHAEL 517/2009 $612.00 $612.00
--
DOMANSKI, CHRIS 5/28/2009 $612.00 $612.00

175
 DC BK14139 PG351

-
GOMEZ, JIMMY C. 2!23/2009 $612 ..00 $612.00

TIIURMOND, MICHAEL 5/21/2009 $612.00 $326.96

CRIPE, TERRY W. 4/15/2009 $612.00 $612.00

BEAVERS, DONALD K. 2/23/2009 $612.00 $612.00

THOMPSON, DAVID L 7/9/2009 $612.00 $612.00

HOKE, AARON 3/6/2009 $612.00 $612.00

YOUNG, DARRELL
-
6115/2009 $612.00 $612.00

'woODARD, EVAN
- 1n12o09 $612.00 $612.00

WALKER, JAMES 3/25/2009 $612.00 $519.60

WALKER, JAMES 6/30/2009 $612.00 $612.00

ZURITA, LOUISETTE 4n!2009
--·- $612.00 $612.00

GARZA, CUAUHTEMOC 4/9/2009 $612.00 $612.00

GUZMAN, LUIS G. 2/18/2009 $612.00 $612.00

GARCIA, PEDRO 4/28/2009 $612.00 $612.00
.. ·-
MAGNER, MARTIN -- 3/13/2009 $612.00 $612.00

LEAL, RENE M. 5/26/2009 $612.00 . $346.40 ·---

TUNNElL, JESSE 3/25/2009 $612.00 $612.00

VASQUEZ, ROGELIO T. 3/30/2009 $612.00 $612.00

GO 3/27/2009 $612.00 $612.00

GILLESPIE, MARTIN 4/28/2009
-1-:----------
$612.00 $612.00
-
CHICO, REBEKAH 1/29/2009 $612.00 $612.00

DELEON, TOMAS 7n!2009 $612.00 $612.00
-
REYNA, JESSE 4/14/2009 $612.00 $612.00

CARILLO, RODRIGO 5/4/2009 $612.00 $612.00

TURNER, JAY 4/14/2009 $612.00 $612.00
1-·
NEVILLES, GARY II 6/2/2009 $612.00 $612.00

PERKINS, ROBERT J. 3/10/2009 $612.00 $612.00

HERNANDEZ, JOSSIAS M 5!21/2009 $612.00 $612.00

176
 DC BK14139 PG352

TORRES, MARGARITO 4/9/2009 $612.00
---
$612.00

MCKINNEY, LEVI 4/14/2009 $612.00 $612.00

ROSAS, DANNY 6/4/2009 $612.00 $612.00

JOHNSON, TIMOTHY 5127/2009 $612.00 $612.00

WISE, JAMES A 6/18/2009 $612.00 $612.00
---
MASCORRO, ROBERT E. 6/1/2009 $612.00 $612.00

REID, BONITA 6/3/2009 $612.00 $612.00

TORRES, JUAN M. 6/18/2009
--·
$612.00 $612.00
---
JACKSON, JOANN 4/23/2009 $612.00 $612.00

ESTRADA, JUAN 4/22/2009 $612.00 $612.00

MERAZ, JESUS 6/18/2009 $612.00
-· $612.00

TROUT, SANDRA K. 5/26/2009 $612.00 $612~oo-

WEESE, NANCY K. 5/5/2009 $612.00 $612.00

WHITFIELD, NORMA J. 7/2/2009 $612.00 $612.00
--
TURNER, JOHN R. 9/22!2009 $612.00 $520.20

FISHER, DEREK 10/22/2009 $612.00 $347.68

DE GRACIA, PAUL 9/16/2009 $612.00 $612.00

FRANCO, MIGUEL 11/20/2009 $612.00 $612.00

WHITLEY, KATHLEEN 12!212009 $612.00
--
$612.00

DAVIDSMEYER, ROBERT L 10/13/2009 $612.00 $6.12

DAVIDSMEYER, ROBERT L. 10/13/2009 $612.00 $605.88

BOATRIGHT, DANNY 11n12oo9
-- $612.00 $612.00

BAKER, LORIN 10/22/2009 $612.00 $347.68

HILL, FRANK 9/16/2009 $612.00 $612.00

RICCI, CORINNE
-·------··-· 10/13/2009 $612.00 $612.00

GUTIERREZ, ADAN 10/9/2009 $612.00 $612.00
·--
STOUT, TIMOTHY E. SR 11/19/2009 $612.00 $520.20
---··
CAGE, VERNON 12/16/2009 $612.00 $520.20

177
 DC BK14139 PG353

VANOS, BRANDON 10!27/2009 $612.00

GARCIA-BURCIAGA, 9/15/2009 $612.00
ALFONS

Against the peace and dignity of the State.

lffVM)~~~
Foreperson of the Grand Jury

178
 DC BK14139 PG354

you will find the defendant, HOWARD THOMAS DOUGLAS, guilty ofthe offense of
Securing Execution of a Document by Deception and so say by your verdict, but ifyou do not
so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by
your verdict "Not Guilty."
VI.

You are further charged as a part of the law in this case that the state is not required to
prove the exact date alleged in the indictment but may prove the offense, if any, to have
been committed at any time prior to the presentment of the indictment so long as said
offense, if any, occurred within seven years of the date of the Presentment of the
indictment ; you are further instructed that the day the indictment was presented and the
day ofthe offense, if any, occurred, shall not be computed within the seven year limitation
period.
VII.
A conviction cannot be had upon the testimony of an accomplice unless the jury first
believe that the accomplice's evidence is true and that it shows the defendant is guilty of the
offense charged against him, and even then you cannot convict unless the accomplice's
testimony is corroborated by other evidence tending to connect the defendant with the offense
charged, and the corroboration is not sufficient if it merely shows the commission of the
offense, but it must tend to connect the defendant with its commission.

You are further instructed that the testimony of one accomplice witness is not sufficient
corroboration of the other's testimony.

You are further instructed that mere presence of the accused in the company of an
accomplice witness shortly before or after the time of the offense, if any, is not, in itself,
sufficient corroboration of the accomplice witness' testimony.

You are charged that Tamara Wells and Lena Shockley were accomplices if any offense
was committed, and you are instructed that you cannot find the defendant guilty upon the
testimony of Tamara Wells and Lena Shockley unless you first believe that the testimony of
the said Tamara Wells and Lena Shockley is true and that it shows the defendant is guilty as
charged in the indictment; and even then you cannot convict the defendant, Howard Thomas
Douglas , unless you further believe that there is other evidence in this case, outside the
evidence of said Tamara Wells and Lena Shockley , tending to connect the defendant with the
commission of the offense charged in the indictment and then from all the evidence you must
believe beyond a reasonable doubt that the defendant is guilty.

VIII.
In all criminal cases, the burden of proof is on the State. All persons are presumed innocent and

no person may be convicted unless each element of the offense is proved beyond a reasonable

doubt. The fact that the defendant has been arrested, confined, or indicted for, or otherwise

charged with an offense gives rise to no inference of guilt at his trial. The law does not require

the defendant to prove his innocence or produce any evidence at all. The presumption of

innocence alone is sufficient to acquit the defendant unless the jurors are satisfied beyond a

179
 DC BK14139 PG355

reasonable doubt of the defendant's guilt after a careful and impartial consideration of all the

evidence in the case.

The prosecution has the burden of proving the defendant guilty and it must do so by

proving each and every element of the offense charged beyond a reasonable doubt and if it fails

to do so, you must acquit the defendant. It is not required that the prosecution prove guilt

beyond all possible doubt; it is required that the prosecutor's proof excludes all "reasonable

doubt" concerning the defendant's guilt.

In the event you have a reasonable doubt as to the defendant's guilt after considering all

the evidence before you, and these instructions, you will acquit the defendant and say by your

verdict "Not Guilty."

In a criminal case the law permits a defendant to testify in his own behalf but he is not

compelled to do so, and the same law provides that the fact that a defendant does not testify

shall not be considered as a circumstance against him. You will, therefore, not consider the fact

that the defendant did not testify as a circumstance against him; and you will not in your

retirement to consider your verdict allude to, comment on, or in any manner refer to the fact that

the defendant has not testified.

You are further instructed as a part of the law in this case that the indictment against the

defendant is not evidence in the case, and that the true and sole use of the indictment is to

charge the offense, and to inform the defendant of the offense alleged against him. The reading

of the indictment to the jury in the statement of the case of the state against the defendant

cannot be considered as a fact or circumstance against the defendant in your deliberations.

In deliberating on the cause you are not to refer to or discuss any matter or issue not in

evidence before you; and in determining the guilt or innocence of the defendant, you shall not

180
 DC BK14139 PG356

discuss or consider the punishment, if any, which may be assessed against the defendant in the

event he is found guilty beyond a reasonable doubt.

You are charged that it is only from the witness stand that the jury is permitted to receive

evidence regarding the case, or any witness therein, and no juror is permitted to communicate

to any other juror anything he may have heard regarding the case or any witness therein, from

any source other than the witness stand.

You are instructed that your verdict must be unanimous and it must reflect the individual

verdict of each individual juror, and not a mere acquiescence in the conclusion of the other

JUrors.

You are the exclusive judges of the facts proved, of the credibility of the witnesses and of

the weight to be given to the testimony, but you are bound to receive the law from the Court,

which is herein given you, and be governed thereby. A juror may believe any, all, none or part of

any evidence given by any witness.

You are instructed that upon your request to the bailiff you shall be furnished any exhibits

admitted as evidence in the case.

After the reading of this charge, you shall not be permitted to separate from each other

nor shall you talk to anyone not of your jury. After argument of counsel, you will retire and

select one of your members as your foreperson. It is his or her duty to preside at your

de1iberations and to vote with you in arriving at a unanimous verdict. After you have arrived at

your verdict, you may use the forms attached hereto by having your foreperson sign his or her

181
 DC BK14139 PG357

Dl DC 12 900059

THE STATE OF TEXAS )( IN THE 331 st DISTRICT

vs. )( COURT OF

HOWARD THOMAS DOUGLAS )( TRAVIS COUNTY, TEXAS

VERDICT OF THE JURY

We, the jury, find the defendant, HOWARD THOMAS DOUGLAS, guilty of the

offense of Securing Execution of a Document by Deception as alleged in the indictment.

Printed name

182
 DC BK14139 PG358

DlDC 12 900059

THE STATE OF TEXAS )( IN THE 33lst DISTRICT

vs. )( COURT OF

HOWARD THOMAS DOUGLAS )( TRAVIS COUNTY, TEXAS

VERDICT OF THE JURY

We, the jury, find the defendant, HOWARD THOMAS DOUGLAS, not guilty.

-----
FOREPERSON OF THE JURY

Printed name

18.3
St Publications> Criminal Justice Section Archive

Criminal Justice Section Standards

Standards on Prosecutorial Investigations (Talbie of
Contents)
P rosecutoria!Investigations is the subject of a new set of ABA
Criminal Justice Standards approved by the ABA House of
Delegates in February 2008. To go directly to individual "black
letter" standards, click on the applicable link in the Table of
Contents, below. Commentary to these Standards is currently
being developed and once it is approved by the Standards
Committee will accompany these "black letter" Standards in a
published volume.

TAIBLE OF CONTENTS

PREAMIBLE

PART 1: GENERAl STANDARDS

STANDARD 1.1 The Function of These Standards

STANDARD 1.2 General Principles

STANDARD 1.3 Working With Police and Other Law Enforcement
Agents

STANDARD 1.4 Victims, Potential Witnesses, and Targets During
the Investigative Process

STANDARD 1.5 Contacts with the Public During the Investigative
Process

PART 2: Standards for Specific Investigative Functions of
the Prosecutor

STANDARD 2.1 The Decision to Initiate or to Continue an
Investigation

STANDARD 2.2 Selecting Investigative Techniques

STANDARD 2.3 Use of Undercover Law Enforcement Agents and
Undercover Operations

STANDARD 2.4 Use of Confidential Informants

APPENDIX 3

htt :1/www.americanbar.org/publications/criminal justice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 2 of 38

STANDARD 2.5 Cooperation Agreements and Cooperating
Individuals and Organizational Witnesses

STANDARD 2.6 The Decision to Arrest During a Continuing Criminal
Investigation

STANDARD 2. 7 Use of Subpoenas

STANDARD 2.8 Search Warrants

STANDARD 2.9 Use of the Investigative Powers of the Grand Jury

STANDARD 2.10 Technologically-Assisted Physical Surveillance

STANDARD 2.11 Consensual Interception, Transmission and
Recording of Communications

STANDARD 2.12 Non-Consensual Electronic Surveillance

STANDARD 2.13 Conducting Parallel Civil and Criminal
Investigations

STANDARD 2.14 Terminating the Investigation, Retention of
Evidence and Post- Investigation Analysis

STANDARD 2.15 Guidance and Training for Line Prosecutors

STANDARD 2.16 Special Prosecutors, Independent Counsel and
Special Prosecution Units

STANDARD 2.17 Use of Information, Money, or Resources Provided
by Non- Governmental Sources

STANDARD 2.18 Use of Sensitive, Classified or Other Information
Implicating Investigative Privileges

PART 3: PROSECUTOR'S ROlE IN RESOlVING
INVESTIGATION PROBlEMS

STANDARD 3.1 Prosecutor's Role in Addressing Suspected Law
Enforcement Misconduct

STANDARD 3.2 Prosecutor's Role in Addressing Suspected Judicial
Misconduct

STANDARD 3.3 Prosecutor's Role in Addressing Suspected
Misconduct by Defense Counsel

STANDARD 3.4 Prosecutor's Role in Addressing Suspected
Misconduct by Witnesses, Informants or Jurors

STANDARD 3.5 Illegally Obtained Evidence

STANDARD 3.6Responding to Political Pressure and Consideration
of the Impact of Criminal Investigations on the Political Process

STANDARD 3. 7 Review and Oversight of Criminal Investigations by
Government Agencies and Officials

Starndards om Prosecutoriai Irnvestigatiorns (Text)
ABA Standards for Criminal Justice: Prosecutorial
Investigations
Approved February 2008

http://ww\v.americanbar.or_g/publications/criminal justice section archive/crimiust stand... 5119/2014
Standards on Prosecutoriallnvestigations (Table of Contents) I Criminal Justice Section Page 3 of 38

Preamble
A prosecutor's investigative role, responsibilities and potential
liability are different from the prosecutor's role and responsibilities
as a courtroom advocate. These Standards are intended as a guide
to conduct for a prosecutor actively engaged in a criminal
investigation or performing a legally mandated investigative
responsibility, e.g., serving as legal advisor to an investigative
grand jury or as an applicant for a warrant to intercept
communications. These Standards are intended to supplement the
Prosecution Function Standards, not to supplant them. These
Standards may not be applicable to a prosecutor serving in a minor
supporting role to an investigation undertaken and directed by law
enforcement agents.

PART 1:
GENERAl STANDARDS

STANDARD 1.1 THE FUNCTION OF THESE STANDARDS

(a) These Standards address the investigative stage of the
criminal justice process. They address the charge or post-charge
stages of the criminal justice process only when those stages
overlap with the investigative stage.

(b) Standards are not intended to serve as the basis for the
imposition of professional discipline, nor to create substantive or
procedural rights for accused or convicted persons. These
Standards do not modify a prosecutor's ethical obligations under
applicable rule of professional conduct. These Standards are not
intended to create a standard of care for civil liability, nor to serve
as a predicate for a motion to suppress evidence or dismiss a
charge.

(c) The use of the term "prosecutor" in these Standards
applies to any prosecutor or other attorney, regardless of agency
or title, who serves as an attorney in a governmental criminal
investigation.

STANDARD 1.2 GENERAl PRINCIPlES

(a) An individual prosecutor is not an independent agent but is
a member of an independent institution the primary duty of which
is to seek justice.

(b) The prosecutor's client is the public, not particular
government agencies or victims.

ht1n://www.americanbar.onz/Dublications/criminal iustice section archive/crimiust stand... .5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 4 of 38

(c) The purposes of a criminal investigation are to:

(i) develop sufficient factual information to enable the
prosecutor to make a fair and objective determination of whether
and what charges should be brought and to guard against
prosecution of the innocent, and

(ii) develop legally admissible evidence sufficient to obtain
and sustain a conviction of those who are guilty and warrant
prosecution.

(d) The prosecutor should:

(i) ensure that criminal investigations are not based upon
premature beliefs or conclusions as to guilt or innocence but are
guided by the facts;

(ii) ensure that criminal investigations are not based upon
partisan or other improper political or personal considerations and
do not invidiously discriminate against, nor wrongly favor, persons
on the basis of race, ethnicity, religion, gender, sexual orientation,
political beliefs, age, or social or economic status;

(iii) consider whether an investigation would be in the public
interest and what the potential impacts of a criminal investigation
might be on subjects, targets and witnesses; and

(iv) seek in most circumstances to maintain the secrecy and
confidentiality of criminal investigations.

(e) Generally, the prosecutor engaged in an investigation
should not be the sole decision-maker regarding the decision to
prosecute matters arising out of that investigation.

(f) The prosecutor should be aware of and comply with the
ethical rules and other legal standards applicable to the
prosecutor's conduct during an investigation.

(g) The prosecutor should cooperate with other governmental
authorities regarding matters that are of legitimate concern to such
authorities when doing so is permitted by law and would not
compromise an investigation or other criminal justice goals.

(h) The prosecutor's office should provide organizational
structure to guide its members' investigative work.

STANDARD 1.3 WORKING WITH POliCE AND OTHER lAW
ENFORCEMENT AGENTS

(a) The prosecutor should respect the investigative role of
police and other law enforcement agents by:

(i) working cooperatively with them to develop investigative
policies; and

httD://vv\V\v.americanbar.org/]Jublications/criminal justice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 5 of 38

(ii) providing independent legal advice regarding their
investigative decisions.

(b) The prosecutor should take steps to promote compliance by
law enforcement agents with relevant legal rules.

(c) The prosecutor should be aware of the experience, skills
and professional abilities of police and other law enforcement
agents assigned to an investigation.

(d) The prosecutor's office should assist in providing training to
police and other law enforcement agents concerning potential legal
issues and best practices in criminal investigations.

(e) Before and throughout the course of complex or non-routine
investigations, the prosecutor should work with the police and
other participating agencies and experts to develop an
investigative plan that analyzes:

(i) the investigative predicate or information concerning the
matter that is then known;

(ii) the goals of the investigation;

(iii) the potential investigative techniques and the advantages
of each, singularly and in combination, in producing relevant
information and admissible evidence; and

(iv) the legal issues likely to arise during the investigation.

(f) The prosecutor should promote timely communications with
police and other law enforcement agents about material
developments in the investigation.

(g) The prosecutor should not seek to circumvent ethical rules
by instructing or recommending that others use means that the
prosecutor is ethically prohibited from using. The prosecutor may
provide legal advice to law enforcement agents regarding the use
of investigative techniques that law enforcement agents are
authorized to use.

STANIDAIRD 1.4 VICTIMS, POTENTIAl WITNESSES, AND
TARGETS IDUIRING THE INVESTIGATIVE PROCESS

(a) Throughout the course of the investigation as new
information emerges, the prosecutor should reevaluate:

(i) judgments or beliefs as to the culpability or status of
persons or entities identified as "witnesses," "victims," "subjects"
and "targets," and recognize that the status of such persons or
entities may change; and

(ii) the veracity of witnesses and confidential informants and
assess the accuracy and completeness of the information that each
provides.

(b) Upon request and if known, the prosecutor should inform a
person or the person's counsel, whether the person is considered

hHn"i/w'"'w.americanbar.orQ/nublications/criminal justice section archive/crimjust_stand... 5119/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 6 of 38

to be a target, subject, witness or victim, including whether their
status has changed, unless doing so would compromise a
continuing investigation.

(c) The prosecutor should know the law of the jurisdiction
regarding the rights of victims and witnesses and should respect
those rights.

(d) Absent a law or court order to the contrary, the prosecutor
should not imply or state that it is unlawful for potential witnesses
to disclose information related to or discovered during an
investigation. The prosecutor may ask potential witnesses not to
disclose information, and in doing so, the prosecutor may explain
to them the adverse consequences that might result from
disclosure (such as compromising the investigation or endangering
others). The prosecutor also may alert an individual who has
entered into a cooperation agreement that certain disclosures
might result in violation of the agreement.

(e) The prosecutor should not imply the existence of legal
authority to interview an individual or compel the attendance of a
witness if the prosecutor does not have such authority.

(f) The prosecutor should comply with applicable rules and case
law that may restrict communications with persons represented by
counsel.

(g) The prosecutor should not take into consideration any of
the following factors in making a determination of whether an
organization has been cooperative in the context of a government
investigation unless the specified conduct of the organization would
constitute a violation of law or court order:

(i) that the organization has provided, or agreed to provide
counsel to, or advanced, reimbursed or indemnified the legal fees
and expenses of, an employee;

(ii) that the organization entered into or continues to operate
under a joint defense or information sharing and common interest
agreement with regard to the investigation;

(iii) that the organization shared its records or other historical
information relating to the matter under investigation with an
employee; or

(iv) that the organization did not sanction or discharge an
employee who invoked his or her Fifth Amendment privilege
against self-incrimination in response to government questioning of
the employee.

(h) The prosecutor should not interfere with, threaten, or seek
to punish persons or entities seeking counsel in connection with an
investigation, nor should the prosecutor interfere with, threaten or
seek to punish those who provide such counsel unless by doing so
such conduct would constitute a violation of law or court order. A
good faith basis for raising a conflict of interest, or for investigating

hiin'//w,;o,rw.americanbar.on:dnublications/criminal iustice section archive/crimiust stand."' 5/19/2014
Standards on Prosecuiorial Investigations (Table of Contents) I Criminal Justice Section Page 7 of 38

possible criminal conduct by the defense attorney, is not
"interference" within the meaning of this Standard.

STANDARD 1.5 CONTACTS WITH THE PUBliC DURING THE
INVESTIGATIVE PROCESS

(a) The prosecutor should neither confirm nor deny the
existence of an investigation, or reveal the status of the
investigation, nor release information concerning the investigation,
with the following exceptions:

(i) releasing information reasonably necessary to obtain public
assistance in solving a crime, apprehending a suspect, or calming
public fears;

(ii) responding to a widely disseminated public call for an
investigation by stating that the prosecutor will investigate, or
decline to investigate the matter;

(iii) responding to a law enforcement or regulatory matter of
significant public safety concern, by stating that the prosecutor will
begin an investigation or begin a special initiative to address the
issue, or by releasing information reasonably necessary to protect
public safety, subject to restrictions in the law of the jurisdiction;

(iv) announcing future investigative plans in order to deter
criminal activity;

(v) stating in an already publicized matter and where justice
so requires, that the prosecutor will not initiate, will not continue,
or has concluded an investigation of a person, entity, or matter
and, if applicable, has informed the subject or potential subject of
the decision not to file charges;

(vi) responding to widely disseminated false statements that
the prosecutor is, or is not, investigating a person, entity, or
matter;

(vii) stating whether and when, if court rules so permit, an
event open to the public is scheduled to occur;

(viii) offering limited comment when public attention is
generated by an event in the investigation (e.g., arrests, the
execution of search warrants, the filing of charges, or convictions),
subject to governing legal standards and court rules; and

(ix) making reasonable and fair responses to comments of
defense counsel or others.

(b) Except as a proper part of a court proceeding and in
accordance with applicable rules, the prosecutor should not publicly
make the following types of statements or publicly disclose the
following information about an investigation:

(i) statements of belief about the guilt or innocence, character
or reputation of subjects or targets of the investigation;

httn://wvvw.americanbar.onz/nublications/criminal iustice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 8 of 38

(ii) statements that have a substantial likelihood of materially
prejudicing a jury or jury panel;

(iii) information about the character or reputation of a person
or entity under investigation, a prospective witness, or victim;

(iv) admissions, confessions, or the contents of a statement or
alibi attributable to a person or entity under investigation;

(v) the performance or results of tests or the refusal or
agreement of a suspect to take a test;

(vi) statements concerning the credibility or anticipated
testimony of prospective witnesses; and
(vii) the possibility or likelihood of a plea of guilty or other
disposition.

(c) The prosecutor should endeavor to dissuade police and
other law enforcement agents and law enforcement personnel from
making public information that the prosecutor would be prohibited
from making public, or that may have an adverse impact on the
investigation or any potential prosecution.

PAIRT 2:
STANDARDS FOR SPECIFIC INVESTIGATIVE FUNCTIONS
OF n11E PROSECUTOR

STANDARD 2.1 THE DECISION TO INITIATE OIR TO
CONTINUE AN INVESTIGATION
(a) The prosecutor should have wide discretion to select
matters for investigation. Thus, unless required by statute or
policy:

(i) the prosecutor should have no absolute duty to investigate
any particular matter; and

(ii) a particularized suspicion or predicate is not required prior
to initiating a criminal investigation.

(b) In deciding whether an investigation would be in the public
interest, the prosecutor should consider, but not necessarily be
dissuaded by, the following:

(i) a lack of police interest;

(ii) a lack of public or political support;

(iii) a lack of identifiable victims;

(iv) fear or reluctance by potential or actual witnesses; or

(v) unusually complex factual or legal issues.

(c) When deciding whether to initiate or continue an
investigation, the prosecutor should consider:

httD://v.r\V\v.americanbar.org/miblications/criminal justice section archive/crimjust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 9 of 38

(i) whether there is evidence of the existence of criminal
conduct;
(ii) the nature and seriousness of the problem or alleged
offense, including the risk or degree of harm from ongoing criminal
conduct;
(iii) a history of prior violations of the same or similar laws
and whether those violations have previously been addressed
through law enforcement or other means;

(iv) the motive, interest, bias or other improper factors that
may influence those seeking to initiate or cause the initiation of a
criminal investigation;

(v) the need for, and expected impact of, criminal
enforcement to:

(A) punish blameworthy behavior;

(B) provide specific andor general deterrence;

(C) provide protection to the community;

(D) reinforce norms embodied in the criminal law;

(E) prevent unauthorized private action to enforce the law;

(F) preserve the credibility of the criminal justice system;
and
(G) other legitimate public interests.

(vi) whether the costs and benefits of the investigation and of
particular investigative tools and techniques are justified in
consideration of, among other things, the nature of the criminal
activity as well as the impact of conducting the investigation on
other enforcement priorities and resources

(vii) the collateral effects of the investigation on witnesses,
subjects, targets and non-culpable third parties, including financial
damage and harm to reputation

(viii) the probability of obtaining sufficient evidence for a
successful prosecution of the matter in question, including, if there
is a trial, the probability of obtaining a conviction and having the
conviction upheld upon appellate review; and

(ix) whether society's interest in the matter might be better or
equally vindicated by available civil, regulatory, administrative, or
private remedies.

(d) When deciding whether to initiate or continue an
investigation, the prosecutor should not be influenced by:

(i) partisan or other improper political or personal
considerations, or by the race, ethnicity, religion, gender, sexual
orientation, political beliefs or affiliations, age, or social or
economic status of the potential subject or victim, unless they are
elements of the crime or are relevant to the motive of the
perpetrator; or

httD://wi\TIV.americanbar.org/publications/criminal iustice section archive/crimiust stand... .5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 10 of38

(ii) hostility or personal animus towards a potential subject, or
any other improper motive of the prosecutor.

(e) The prosecutor's office should have an internal procedure to
document the reason(s) for declining to pursue prosecution
following a criminal investigation.

STANDARD 2.2 SELECTING INVESTIGATIVE TECHNIQUES
(a) The prosecutor should be familiar with routine investigative
techniques and the best practices to be employed in using them.

(b) The prosecutor should consider the use of costlier, riskier,
or more intrusive means of investigation only if routine
investigative techniques would be inappropriate, ineffective, or
dangerous, or if their use would impair the ability to take other
desirable investigative steps. If non-routine techniques are used,
the prosecutor should regularly reevaluate the need for them and
whether the use of routine investigative techniques will suffice.

(c) The prosecutor should consider, in consultation with police
and other law enforcement agents involved in the investigation,
the following factors:

(i) the likely effectiveness of a particular technique;

(ii) whether the investigative means and resources to be
utilized are appropriate to the seriousness of the offense;

(iii) the risk of physical danger to law enforcement officers
and others;

(iv) the costs involved with various investigative techniques
and the impact such costs may have on other efforts within the
prosecutor's office;

(v) the possibility of lost opportunity if an investigative
technique is detected and reveals the investigation;

(vi) means of avoiding unnecessary intrusions or invasions
into personal privacy;

(vii) the potential entrapment of otherwise innocent persons;

(viii) the risk of property damage, financial loss to persons or
businesses, damage to reputation or other harm to persons;

(ix) interference with privileged or confidential
communication;

(x) interference with or intrusion upon constitutionally
protected rights; and

(xi) the risk of civil liability or other loss to the government.

(d) The prosecutor should consider the views of experienced
police and other law enforcement agents about safety and
technical and strategic considerations in the use of investigative
techniques.

httJJ://v.rww.americanbar.org/publications/criminal justice section archive/crimjust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 1 1 of 38

(e) The prosecutor may consider that the use of certain
investigative techniques could cause the subject of the
investigation to retain legal counsel and thereby limit the use of
some otherwise permissible investigative techniques.

(f) The prosecutor should avoid being the sole interviewer of a
witness, being alone with a witness, or otherwise becoming an
essential witness to any aspect of the investigation.

(g) While the prosecutor may, and sometimes should, seek
changes in law and policy, the prosecutor should abide by existing
legal restraints, even if the prosecutor believes that they
unjustifiably inhibit the effective investigation of criminal conduct.

STANDARD 2.3 USE Of UNDERCOVER LAW ENFORCEMENT
AGENTS AND UNDERCOVER OPERATIONS

(a) For the purpose of these Standards, an "undercover law
enforcement agent" is an employee of a government agency
working under the direction and control of a government agency in
a criminal investigation, whose true identity as a law enforcement
agent involved in the investigation is concealed from third parties.

(b) For the purpose of these Standards, an "undercover
operation" means an investigation in which undercover law
enforcement agents or other persons working with law
enforcement conceal their purpose of detecting crime or obtaining
evidence to prosecute those engaged in illegal activities.

(c) In deciding whether to use or to advise the use of
undercover law enforcement agents or undercover operations, the
prosecutor should consider potential benefits, including:

(i) the character and quality of evidence likely to be obtained;
and

(ii) the ability to prevent or solve crimes where obtaining
reliable and admissible evidence to do so would otherwise be
difficult or impossible to obtain.

(d) In deciding whether to use or to advise the use of
undercover law enforcement agents or undercover operations, the
prosecutor should consider potential risks, including:

(i) physical injury to law enforcement agents and others;

(ii) lost opportunity if the operation is revealed;

(iii) unnecessary intrusions or invasions into personal privacy;

(iv) entrapment of otherwise innocent persons;

(v) property damage, financial loss to persons or businesses,
damage to reputation or other harm to persons;

(vi) interference with privileged or confidential
communications;

(vii) interference with or intrusion upon constitutionally
protected rights;

http://v,rvvw.americanbar.org/publications/criminal justice section archive/crimjust stand... 5/1 9/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 12 of 38

(viii) civil liability or other adverse impact on the government;

(ix) personal liability of the law enforcement agents;

(x) involvement in illegal conduct by undercover law
enforcement agents or government participation in activity that
would be considered unsuitable and highly offensive to public
values and that may adversely impact a jury's view of a case; and

(xi) the possibility that the undercover operation will
unintentionally cause an increase in criminal activity.

(e) The prosecutor advising an undercover investigation should:

(i) consult with appropriate police or law enforcement agents
on a regular basis about the continued propriety of the operation
and the legal sufficiency and quality of the evidence that is being
produced by the operation;

(ii) seek periodic internal review of the investigation to
determine whether the operation's benefits continue to outweigh
its risks and costs, including the extent to which:

(A) the goals of the investigation have been accomplished;

(B) there is potential for the acquisition of additional useful
and non- duplicative information;

(iii) the investigation can continue without exposing the
undercover operation; and

(iv) continuation of the investigation may cause financial or
other injury to innocent parties.

(f) The prosecutor should seek to avoid or minimize the risks
involved in the active participation of undercover police or law
enforcement agents in illegal activity, and provide such agents
guidance about authorized participation in otherwise criminal
conduct.

(g) Records of funds expended and generated by undercover
activity should be retained and accounted for in a manner that
facilitates a comprehensive and accurate audit.

STANDARD 2.4 USE OF CONFIDENTIAL INFORMANTS

(a) As used in these Standards, a "confidential informant" is a
person who supplies information to police or law enforcement
agents pursuant to an agreement that the police or investigative
agency will seek not to disclose the person's identity. The identity
of a confidential informant may also be unknown to the prosecutor.
A confidential informant may in some instances become a
cooperator, and in such circumstances reference should be made
to Standard 2.5.

(b) The prosecutor should consider possible benefits from the
use of a confidential informant, including whether the confidential
informant might enable the government to obtain:

httn://ww\:v.americanbar.org/])ublications/criminal justice section archive/crimjuststand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 13 of 38

(i) first-hand, eyewitness accounts of criminal activity;

(ii) critical background information about the criminal activity
or criminal organization under investigation;

(iii) information necessary to provide a basis for additional
investigative techniques or court-ordered means of investigation
such as a search warrant; and

(iv) identification of witnesses or leads to witnesses who can
provide direction to further the investigation or valuable testimony
to a grand jury or at trial.

(c) The prosecutor should consider possible risks from the use
of a confidential informant. These include risks that the confidential
informant will:

(i) be untruthful, or provide misleading or incomplete
information;

(ii) compromise the criminal investigation by revealing
information to others, including the subjects or targets of the
investigation;

(iii) engage in behavior constituting entrapment;

(iv) commit or continue to commit crimes;

(v) be subject, or subject others, to serious risk of physical
harm as a result of cooperating with law enforcement; and

(vi) interfere with privileged or confidential relationships or
communications or violate the rights of the investigation's subject.

(d) The prosecutor should avoid being alone with a confidential
informant, even for a brief period of time.

(e) Before deciding to rely upon the information provided by a
confidential informant for significant investigative steps, the
prosecutor should review the following with the police or law
enforcement agents:

(i) the ability of the confidential informant to provide or obtain
information relevant to the criminal investigation;

(ii) means of corroborating information received from the
confidential informant;

(iii) the possible motives or biases of the confidential
informant, including the motive to gain a competitive advantage
over others in either criminal or legitimate enterprises;

(iv) the nature of any and all promises made to the
prospective confidential informant by other prosecutors, police or
law enforcement agents, including promises related to the
treatment of associates or relatives of the confidential informant;

(v) the prior history of the confidential informant , including
prior criminal activity and other information, including the
informant's true identity if necessary for the prosecutor's review;

http://\\iVvw.americanbar.org/publications/criminal justice section archive/crimjust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 14 of 38

(vi) whether the prospective confidential informant is
represented by an attorney or is party to a joint defense
agreement with other targets of the investigation and, if so, how
best to address potential legal or ethical issues related to the
representation or agreement;

(vii) if reasonably available, the experience other prosecutors
and law enforcement agents have had with the confidential
informant;

(viii) whether the proposed compensation or benefits to be
received by the confidential informant are reasonable under the
circumstances;

(ix) the risk that the prospective confidential informant may
be an agent of the subjects of the investigation or of other criminal
groups and individuals, or may reveal investigative information to
them; and
(x) the risk that the prospective confidential informant will
engage in criminal activity not authorized by the prosecutor, and
the seriousness of that unauthorized criminal activity.

(f) The prosecutor's office should work with police and law
enforcement agents to develop best practices and policies for the
use of confidential informants that include:

(i) a rule that investigative information obtained from other
sources should not be provided to the confidential informant unless
doing so would materially advance the investigation;

(ii) prohibitions on making promises of compensation or other
benefits that would shock the conscience of a moral society or
would risk compromising the credibility of the informant in any
proceeding in which the informant's testimony may be important;

(iii) prohibitions on making promises that the police or law
enforcement agents are unlikely to be able to keep;

(iv) routine instructions to confidential informants to refrain
from criminal conduct other than as directed by law enforcement;
and

(v) the routine use of standard form agreements when such
agreements are entered into by law enforcement officers without
the involvement of the prosecutor.

STANDARD 2.5 COOIPIERATION AGRIEIEMIENTS AND
COOIPIERATING INDIVIDUALS AND ORGANIZATIONAL
WITNIESSIES

(a) As used in these Standards, "cooperation agreements" are
agreements between the prosecutor and otherwise culpable
individuals or entities ("cooperators") who provide the government
with assistance useful to an investigation in exchange for benefits.

http://wvv-w.americanbar.org/publications/criminal justice section archive/crimjust stand." 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 15 of 38

A cooperator may have been a confidential informant earlier in the
investigation.

(b) The prosecutor should ordinarily seek to have the
cooperator plead guilty to an appropriate criminal charge rather
than provide the cooperator immunity for culpable conduct.

(c) In deciding whether to offer a cooperator significant
benefits, including a limit on criminal liability, immunity, or a
recommendation for reduction of sentence, the prosecutor should
consider whether:

(i) the cooperator is able and willing to provide valuable
assistance to the investigation;

(ii) the cooperator will maintain the confidentiality or secrecy
of the investigation;
(iii) the cooperator has biases or personal motives that might
result in false, incomplete, or misleading information;

(iv) leniency or immunity for the criminal activity of the
cooperator is warranted by the goals of the investigation and the
public interest, including appropriate consideration for victim(s)
interests;
(v) providing leniency, immunity or other benefits would be
seen as offensive by the public or cause a reasonable juror to
doubt the veracity of the cooperator's testimony;

(vi) information that has been provided (such as through an
attorney proffer or by a debriefing of the cooperator) has been
corroborated or can otherwise shown to be accurate;

(vii) the culpability of other participants in the criminal activity
relative to the cooperator's culpability has been determined as
accurately as possible;

(viii) there is a likelihood that the cooperator will provide
useful information only if given leniency or immunity;

(ix) the case could be successfully prosecuted without the
cooperator's assistance; and

(x) the cooperator could be successfully prosecuted without
the admissions of the cooperator made pursuant to the agreement.

(d) The cooperation agreement should not:

(i) promise to forego prosecution for future criminal activity,
except where such activity is necessary as part of an officially
supervised investigative and enforcement program; or

(ii) adversely affect third parties' legal rights.

(e) The prosecutor should:

(i) be aware that anything said to the cooperator might be
repeated to the cooperator's criminal associates or in open court;
and

http://w\t..i\V.americanbar.org/publications/criminal justice section archive/crimjust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 16 of 3 8

(ii) be aware of the disclosure requirements under relevant
law if a cooperator ultimately testifies at trial, including disclosure
of any and all agreements and promises made to the cooperator
and evidence which could impact the cooperator's credibility,
including the complete criminal history of the cooperator. The
prosecutor should take steps to assure the preservation of such
evidence.

(f) The prosecutor should recognize and respect the role of the
cooperator's attorney in the decision to cooperate and in the
disposition of significant legal rights.

(g) Ordinarily, a prosecutor who offers leniency in exchange for
cooperation should not withdraw or threaten to withdraw the offer
because of the potential cooperator's request to consult with
counsel prior to deciding whether to accept it. However, if the time
required for the potential cooperator to consult with counsel would
render the agreement ineffective, the prosecutor may withdraw or
threaten to withdraw the offer before there is opportunity for such
consultation. In that event, the prosecutor may condition
cooperation on an immediate and uncounseled decision to proceed.

(h) The prosecutor should reduce a cooperation agreement to
writing as soon as practicable. An agreement should only cover
those crimes known to the government at the time it is made, and
should specify:

(i) the specific details of all benefits and obligations agreed
upon;
(ii) the specific activities to be performed by the cooperator;

(iii) the requirement that the cooperator be truthful in dealing
with the government and in all legal proceedings;

(iv) the prohibition against the cooperator's engaging in any
criminal conduct other than as directed by law enforcement;

(v) the extent of the disposition of the potential criminal and
civil claims against the cooperator;

(vi) a complete list of any other promises, financial benefits or
understandings;

(vii) the limitations of the agreement with respect to the
terms it contains and to the identified jurisdiction or jurisdictions;
and

(viii) the remedy in the event the cooperator breaches the
agreement.

(i) The prosecutor should avoid being alone with a cooperator
even for a brief period of time.

(j) The prosecutor should guard against the cooperator
obtaining information from others that invades the attorney-client
or work product privileges or violates the Sixth Amendment right
to counsel.

hiirl"i/www ::~mPrir.::~nh::~ron:r/nnhlicn1ions/criminal iustice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 17 of 38

(k) Prior to relying on the cooperator's information in
undertaking an investigative step that could cause adverse
consequences to the investigation or to a third party, the
prosecutor should be satisfied as to the truthfulness of the
cooperator.

(I) If an investigative step involves an application to a court or
other official body, the prosecutor should make appropriate and
required disclosures about the cooperator to the court or other
body.

(m) If the prosecutor suspects that the cooperator is not being
truthful, the prosecutor should take reasonable steps to address
such concerns and seek further corroboration of the cooperator's
information.

(n) If the prosecutor determines that a cooperator has
knowingly provided false information or otherwise breached the
cooperation agreement, the prosecutor should:

(i) seek guidance from a supervisor;

(ii) undertake or request the initiation of an investigation into
the circumstances;

(iii) consider the possible prosecution of the cooperator, and;

(iv) carefully reevaluate the investigation.

STANDARD 2..6 TIHE DECISION TO ARREST Dll...llRING A
CONTINII.JliNG CRIMINAl INVESTIGATION

(a) In making a tactical decision whether, when or where to
arrest a subject during a continuing investigation, the prosecutor
should consider the potential benefits of the arrest, including:

(i) protecting the public from a person known to present an
imminent danger;

(ii) reducing the likelihood of flight;

(iii) preventing the destruction of evidence and providing an
opportunity to obtain evidence of a crime pursuant to a search
incident to arrest;

(iv) stopping or deterring the harassment or coercion of
witnesses or other acts of obstruction of justice;

(v) creating an opportunity to ask questions about an
unrelated crime;

(vi) encouraging other culpable individuals or witnesses to
surrender to law enforcement and to cooperate with the
investigation;

(vii) inducing relevant conversation or other communication
likely to be intercepted by law enforcement; and

hHn-1/vvvvw 8meric::~nhar.orrr/nublications/criminal iustice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 18 of 38

(viii) protecting the existence of an undercover agent or
confidential informant, a cooperator or an undercover operation.

(b) In deciding whether, when or where to arrest a subject
during a continuing investigation, the prosecutor should consider
the potential risks of the arrest, including:
(i) limiting the continued conduct of a criminal investigation
by alerting others involved in continuing criminal activity;

(ii) restricting the use of some investigative techniques;

(iii) triggering speedy charge and speedy trial rules;

(iv) triggering disclosure obligations that have been subject to
delayed notice;

(v) appearing to be illegitimate or pre-textual and thus
adversely affecting community support for police and prosecution
efforts; and
(vi) causing significant shame, embarrassment or prejudice to
the arrestee or innocent third parties and unintended and unfair
financial impacts.
(c) The prosecutor should be aware that Sixth Amendment
right to counsel issues raised by the filing of criminal charges may
limit the availability of some investigative options, including:

(i) use of the grand jury as an investigative technique;

(ii) soliciting incriminating information from a charged
individual; and

(iii) contacts with the individuals or entities who have been
charged.

STANIDAIRD 2..7 USE OF SUBPOENAS

(a) As used in these Standards, a "subpoena," however named
or designated, is a written command for a person or entity to
provide physical evidence, testimony or documents. A subpoena
may be issued by a prosecutor, a court, a grand jury or a law
enforcement agency, as provided by the law of the jurisdiction.

(b) In deciding whether to use a subpoena, the prosecutor
should consider potential benefits including:

(i) the conservation of law enforcement resources by requiring
others to search for and provide factual information and physical
evidence needed for an investigation;

(ii) the imposition of an obligation on the subject of the
subpoena to provide factual information or physical evidence;

(iii) the fact that no predicate or less of a showing is required
to issue a subpoena, as compared to a search warrant;

(iv) the ability to delay or prevent a third party from
voluntarily or compulsorily disclosing information about the

ht1n-//w,,vw 8mPri~~Cmh8ror>J!rmhlicB1ions/criminal iustice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 19 of 38

subpoena (including the disclosure of either the fact of the
subpoena itself or of any information provided in response) as a
means to preserve the secrecy of the investigation if authorized by
law; and

(v) voluntary disclosures or cooperation by witnesses and
subjects prompted by receipt of the subpoena.

(c) In deciding whether to use a subpoena, the prosecutor
should consider the following potential risks and ways to mitigate
them:

(i) that evidence will be destroyed or altered in between
receipt and production;

(ii) that information responsive to the subpoena will be
improperly withheld or that the request will be interpreted
narrowly; and

(iii) that knowledge of the subpoena will cause the subjects of
the investigation to disguise criminal activity, or take actions to
impede or obstruct the investigation.

(d) The prosecutor using a subpoena should:

(i) seek to limit the scope of the subpoena to the needs of the
investigation, avoid overbroad requests, and avoid seeking the
production of attorney-client privileged material; and

(ii) provide reasonable accommodations based on factors such
as the size or nature of the request, the impact of the request on
legitimate business operations, or the time reasonably needed to
perform a review for privileged or other legally protected fact
information, unless doing so would be outweighed by the
government's interest in avoiding delay.

(e) The prosecutor should ensure that materials received
pursuant to a subpoena are properly stored, logged or indexed,
and are readily retrievable.

(f) The prosecutor should accept copies of documents subject
to a subpoena unless there is a specific need for original
documents that outweighs the producing party's need and right to
retain its original materials.

(g) The prosecutor should provide copies, or if necessary,
reasonable access to copies or original documents to the person or
entity who has produced the copies or originals.

(h) The prosecutor should seek to minimize the cost and
dislocation suffered by a person or entity to whom a subpoena is
issued and, where applicable, should inform the person or entity of
any right to compensation allowed by law.

(i) The prosecutor should arrange for the return of subpoenaed
documents and materials when the purpose for which they were
subpoenaed has ended.

hHn·l!vJUJUJ :::t111Pl'ir.:::~nh:w mn/nnhlir::Jtionc:/crimim'll iuc:tice section archive/crimiust stand... .5119/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 20 of 38

(j) The prosecutor involved in an investigation where police or
law enforcement agents have legal authority to issue written
requests for various records and data without probable cause or
judicial oversight, should provide advice as to whether the
proposed use of such authority is consistent with the limits of the
applicable law, the Constitution, and the circumstances of the
investigation.

STANDARD 2..8 SEARCH WARRANTS

(a) As used in these Standards a "search warrant" is a written
command issued by a judge or magistrate that permits law
enforcement agents to search specified persons or premises and
seize specified effects and information.

(b) The prosecutor should consider the following potential
benefits associated with using a search warrant:

(i) securing evidence that might otherwise be removed,
hidden, altered or destroyed;

(ii) removing contraband from commerce before it is
transferred or used;

(iii) seeing and documenting the precise location of the items
to be seized in their natural or unaltered state or location;

(iv) obtaining statements by individuals at the scene of the
search that might further the investigation;

(v) observing and recording the presence of individuals found
together at the scene of the search as evidence of their
coordination; and

(vi) encouraging other culpable individuals or witnesses to
come forward and provide information to the investigation.

(c) The prosecutor should consider the following potential costs
and risks before applying for a search warrant:

(i) the extensive utilization of limited government resources
during the preparation and execution of a search warrant, as
compared with other means of gathering information, such as a
subpoena;

(ii) the intrusive nature of the execution of the warrant and its
impact on personal privacy or on legitimate business operations;

(iii) the impact of execution of the warrant on innocent third
parties who may be on the premises at the time the warrant is
executed; and

(iv) the potential danger or harm to third parties.

(d) When the prosecutor is involved in an investigation, the
prosecutor should review search warrant applications prior to their
submission to a judicial officer. In all other cases, the prosecutor
should encourage police and law enforcement agents to seek

hiin·//vvuiw ~mPrir~nh:w onr/nnhlications/criminal iustice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 21 of 3 8

prosecutorial review and approval of search warrants prior to their
submission to a judicial officer.

(e) In jurisdictions that authorize telephonic warrants, the
prosecutor should be familiar with the rules governing the use of
such warrants and should be available to confer with law
enforcement agents about them.

(f) In reviewing a search warrant application, the prosecutor
should:

(i) seek to assure the affidavit is complete, accurate and
legally sufficient;

(ii) seek to determine the veracity of the affiant and the
accuracy of the information, especially when the application is
based on information from a confidential informant; and

(iii) seek to ensure that the affidavit is not misleading and
does not omit material information which has a significant bearing
on probable cause.

(g) The prosecutor involved in the investigation should:

(i) generally, if time permits, meet in advance with all law
enforcement and other personnel who will participate in the
execution of the warrant to explain the scope of the warrant,
including the area(s) to be searched and the items to be seized;

(ii) consistent with the goals of the investigation, provide
legitimate business operations and third parties reasonable access
to seized records;

(iii) avoid becoming a necessary percipient witness at the
scene of the execution of the warrant but be readily available and
accessible to respond to immediate questions or to assist in the
preparation of additional warrant applications;

(iv) seek to ensure that an inventory is filed as required by
relevant rules; and

(v) seek to preserve exculpatory evidence obtained during a
search and consider the impact of such evidence on the criminal
investigation.

(h) When searching an attorney's office, or any place where
attorney-client or other privileged material is likely to be located or
is discovered, the prosecutor should arrange for evidence to be
recovered in such manner as to prevent or minimize any
unauthorized intrusion into confidential relationships or information
privileged under law.

(i) The prosecutor should seek to prevent or minimize the
disclosure of information to the public which a person or entity
may consider private or proprietary.

(j) The prosecutor should consider seeking to delay notice
about the execution of a search warrant if such delay is authorized

hitn·//u.rw\:v >1mr>rir.>1nh::Jr oro)nnhlic::Jtions/criminal iustice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 22 of 38

by law and if prompt disclosure of the execution of the warrant
could reasonably be expected to result in:

(i) the endangerment of life or physical safety of an
individual;

(ii) the intimidation of potential witnesses;

(iii) the flight from prosecution by a target of any
investigation;

(iv) the destruction of or tampering with evidence in any
investigation; or

(v) any other serious jeopardy to an investigation.

(k) The prosecutor should not notify media representatives of a
search before it occurs and should advise law enforcement agents
acting with the prosecutor in the investigation not to do so.

(I) The prosecutor should consider whether the papers
supporting the search warrant should be sealed after the warrant is
executed and should make application to do so only when the
prosecutor believes that the public's interest in knowing of the
warrant is outweighed by the need to maintain secrecy of the
investigation or to prevent unfair publicity to the persons or
organizations whose premises were searched.

STANDARD 2.9 USIE OIF THE INVESTIGATIVE POWERS OIF
THE GRAND JURY

(a) In deciding whether to use a grand jury, the prosecutor
should consider the potential benefits of the power of the grand
jury to compel testimony or elicit other evidence by:

(i) conferring immunity upon witnesses;

(ii) obtaining evidence in a confidential forum;

(iii) obtaining evidence from a witness who elects not to speak
voluntarily to the police or prosecutor;

(iv) obtaining documentary or testimonial evidence with the
added reliability provided by the oath and the secrecy
requirements of the grand jury;

(v) obtaining documentary evidence from a third party that
may be difficult to obtain from a target; and

(vi) preserving witnesses' accounts in the form of sworn
testimony where the jurisdiction provides for recording or
transcription of the proceedings.

(b) In deciding whether to use a grand jury, the prosecutor
should consider the potential risks including:

(i) revealing the existence or direction of an investigation;

(ii) obtaining evasive or untruthful testimony from witnesses
who are loyal to targets or fearful of them;

httn://ww\v.americanbar.onz/Dublications/criminal iustice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 23 of 38

(iii) relying on witnesses to obey the commands of subpoenas
directing them to produce documents or physical evidence;

(iv) granting immunity to witnesses:

(A) who are not believed culpable at the time of the grant
but are later found to be culpable; or

(B) who are later found to be more culpable than the
prosecutor believed at the time of the grant;

(v) exposing grand jury witnesses to reputational, economic
or physical reprisal; and

(vi) exposing grand jury witnesses to collateral consequences
such as lost time from employment or family obligations, financial
costs of compliance, and potential damage to their reputation from
association with a criminal investigation.

(c) In pursuing an investigation through the grand jury, the
prosecutor should:

(i) only bring a matter before the grand jury with the primary
purpose of seeking justice and to be mindful of the ex parte nature
of proceedings;

(ii) prepare adequately before conducting grand jury
examinations;

(iii) know and follow the laws of the jurisdiction and the rules,
practices, and policies of the prosecutor's office;

(iv) pose only legal and proper questions and, if within the
knowledge of the prosecutor questioning may elicit a privileged or
self-incriminating response, advise the witness of the existence of
the applicable privilege; and

(v) unless prohibited by the law of the jurisdiction, ensure
that grand jury proceedings are recorded.

(d) The prosecutor should use grand jury processes fairly and
should:

(i) treat grand jurors with courtesy and give them the
opportunity to have appropriate questions answered; however, the
prosecutor should not allow questions that:

(A) elicit facts about the investigation that should not
become known to the witness; or

(B) call for privileged, prejudicial, misleading or irrelevant
evidence;

(ii) issue a subpoena ad testificandum only if the prosecutor
intends to bring the witness before the grand jury;

(iii) refrain from issuing a subpoena that is excessively broad
or immaterial to the legitimate scope of the grand jury's inquiry;

(iv) make reasonable efforts before a witness appears at the
grand jury to determine that the testimony is needed, including

ht1n·//www RmPrir.:oJnh:oJr on:r/rmhlic:oJtions/criminal iustice section archive/crimiust stand... 5119/20 4
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 24 of 38

offering the witness or witness' counsel a voluntary pre-
appearance conference;

(v) grant reasonable requests for extensions of dates for
appearance and production of documents when doing so does not
impede the grand jury's investigation; and

(vi) resist dilatory tactics by witnesses that undermine the
grand jury's investigation, authority, or credibility.

(e) The prosecutor should examine witnesses with courtesy and
in a manner designed to elicit truthful testimony, and should:

(i) consider warning a witness suspected of perjury of the
obligations to tell the truth;

(ii) insist upon definite answers that will:

(A) fully inform the members of grand jury; and

(B) establish a clear record so that a witness committing
perjury or contempt can be held responsible for such actions;

(iii) inform grand jury witnesses of their right to consult with
their attorneys to the extent provided by the policy, procedure or
law of the jurisdiction; and

(iv) seek a compulsion order only when the testimony sought
is in the public interest, there is no other reasonable way to elicit
such testimony, and the witness has refused to testify or has
indicated an intent to invoke the privilege against self-
incrimination.

(f) In determining whether obtaining testimony from a culpable
witness will outweigh the cost of granting immunity, a prosecutor
should consider the following factors:

(i) the relative culpability of the witness to be immunized as
compared with the person against whom the testimony will be
offered;

(ii) the gravity of the crime(s) being investigated;

(iii) the probability that the testimony would advance the
investigation or an eventual prosecution;

(iv) the gravity of the crime(s) for which the witness would be
granted immunity;

(v) the character and history of the witness being considered
for immunity, including how these factors might affect the
witness's credibility;

(vi) the scope of the immunity that the witness would receive;

(vii) the risk that the immunized witness would lie or feign
lack of memory;

(viii) the risk that the immunized witness would falsely claim
responsibility for criminal acts committed by another; and

hiin://v,rvvw americanbar.orrr/nublications/criminal iustice section archive/crimiust stand... .5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 25 of 38

(ix) the potential for the grand jury testimony to enhance
truthful testimony by hostile or reluctant witnesses at trial or
provide evidence to prove perjury if a witness lies at trial.

(g) Ordinarily, the prosecutor should not seek to compel
testimony from a close relative of a target of an investigation by
threatening prosecution or offering immunity, unless:

(i) the relative participated criminally in an offense or criminal
enterprise with the target and the testimony sought would relate to
that enterprise's activities;

(ii) the testimony sought relates to a crime involving
overriding prosecutorial concerns; or

(iii) comparable testimony is not readily available from other
sources.

(h) Ordinarily, the prosecutor should give notice to a target of a
grand jury investigation and offer the opportunity for the target to
testify without immunity before the grand jury. However, notice
need not be provided if there is a reasonable possibility it will
result in flight of the target, endanger other persons, or obstruct
justice. Prior to taking a target's testimony, the prosecutor should
advise the target of the privilege against self-incrimination and
obtain a waiver of that right.

(i) A prosecutor with personal knowledge of non-frivolous
evidence that directly negates the guilt of a subject of the
investigation should present or otherwise disclose that evidence to
the grand jury. If evidence is provided to the prosecutor by the
subject or target of the investigation and the prosecutor decides
not to provide the evidence to the grand jury, the prosecutor
should notify the subject, target or their counsel of that decision
without delay, so long as doing so would not jeopardize the
investigation or prosecution or endanger others.

STANDARD 2.10 TECHNOLOGICALLY-ASSISTED PHYSICAL
SURVEILLANCE

(a) As used in these Standards, "technologically-assisted
physical surveillance" includes: video surveillance, tracking
devices, illumination devices, telescopic devices, and detection
devices.

(b) In deciding whether to use technologically-assisted physical
surveillance, the prosecutor should consider the potential benefits,
including:

(i) detecting the criminal possession of objects that are
dangerous or difficult to locate; and

(ii) seeing or tracing criminal activity by means that are
minimally intrusive and limiting the risks posed to the public and
law enforcement personnel.

httn://www.americanbaLom:/oublications/criminal iustice section archive/crimiust stand.'" 5/19/2014
Standards on Prosecutoriallnvestigations (Table of Contents) I Criminal Justice Section Page 26 of 3 8

(c) In deciding whether to use technologically-assisted physical
surveillance, the prosecutor should consider the legal and privacy
implications for subjects, victims and third parties. The prosecutor
should seek to use such surveillance techniques in proportion to
the seriousness of the criminal activity being investigated and the
needs of the particular investigation and in a manner designed to
be minimally intrusive.

(d) In deciding whether to use technologically-assisted physical
surveillance, the prosecutor should consider the legal requirements
applicable to the technique under consideration, and whether those
requirements have been met.

STANDARD 2.11 CONSENSUAl INTERCEPTION,
TRANSMISSION AND RECORDING OF COMMUNICATIONS

(a) As used in these Standards "consensual interception" is an
electronic, digital, audio or video interception and recording of
communications to which one or more but not all participants in
the communications has consented.

(b) In deciding whether to use consensual interception, the
prosecutor should consider the potential benefits, including
obtaining direct, incriminating, and credible evidence that can be
used alone or to corroborate other information.

(c) In deciding whether to use consensual interception, the
prosecutor should consider the potential risks, including:

(i) problems of audibility and admissibility;

(ii) the danger of detection, including physical risk to those
participating, and the risk of disclosure of the investigation;

(iii) selective recording of communications by the cooperating
party;

(iv) the danger of obtaining false, misleading or self-serving
statements by a party to the conversation who is aware or
suspects that the conversation is being recorded;

(v) the risk that the consenting individual will conspire with
the subject of the investigation to create false or misleading
statements; and

(vi) the risk that the import of a conversation will be distorted
by the cooperating party.

(d) To maximize the benefits and to minimize the risks of using
consensual interception, the prosecutor should:

(i) obtain written or recorded consent from the consenting
individual; and minimize to the extent practicable recording outside
the presence of law enforcement agents and, if such a recording
occurs or will occur:

h11w//w\\T\IJ ::~meric~mh~n orQ/nublications/criminal iustice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 27 of 38

(A) have law enforcement agents test and activate the
recording equipment before the cooperating party meets with the
subject; and

(B) minimize the necessity for the cooperating party to
operate the recording equipment and, if it is necessary for the
cooperating party to operate the equipment, provide that individual
specific directions on how to operate the equipment and strict
instruction to be present with it during such operation.

(e) The prosecutor, in consultation with the law enforcement
agents, should regularly review all or selected recordings obtained
during consensual interceptions.

(f) The prosecutor should take steps to ensure law enforcement
agents comply with procedures relating to the acquisition of,
custody of, and access to electronic equipment and recording
media and to the secure preservation of any recordings produced
whether they are obtained by consenting individuals or by law
enforcement agents.

STANDARD 2.12 NON-CONSIENSUAliEliECTRONIC
SUIRVIEillANCIE

(a) As used in these Standards "non-consensual electronic
surveillance" is the court-ordered interception of communications,
actions, or events.

(b) In deciding whether to request a court order for non-
consensual electronic surveillance, the prosecutor should consider
the potential benefit of obtaining direct, incriminating, and credible
evidence that can be used alone or to corroborate other
information.

(c) In deciding whether to request a court order for non-
consensual electronic surveillance, the prosecutor should consider
the potential costs and risks, including:

(i) whether the suspected criminal activity being investigated
is sufficiently serious and persistent to justify:

(A) the significant intrusion on the privacy interests of
targets and innocent third parties;

(B) the need to obtain periodic reauthorization for electronic
surveillance; and

(C) the financial and resource costs associated with such
surveillance.

(ii) whether all requirements of the law are met.

(d) The prosecutor, including an applicant, should be aware of
the reporting requirements under federal and state law and
heightened obligations and accountability to the court in
connection with the application and use of non-consensual
electronic surveillance.

httn://ww\:v.americanbar.on?:/nublications/criminal iustice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 28 of38

(e) Prior to the initiation of non-consensual electronic
surveillance, the prosecutor should review the following with the
law enforcement agents and contract personnel such as
interpreters who will assist in the execution of the order:

(i) the scope of the order;

(ii) obligations of the monitoring law enforcement agents and
monitoring personnel to minimize the interception of privileged
conversations and other conversations outside the scope of the
order and to alert the prosecutor promptly when recording
evidence of new crimes;

(iii) the prohibition on listening without recording;

(iv) rules related to protecting the integrity and chain of
custody of recordings;

(v) instructions to contact the prosecutor whenever a
noteworthy event occurs, or there is a question regarding the
execution of the order; and

(vi) the need to adhere to non-disclosure requirements.

(f) The prosecutor should stay informed of actions of law
enforcement agents and contract personnel throughout the use of
non-consensual electronic surveillance and should take appropriate
steps to determine whether the required procedures are being
followed by those carrying out the surveillance.

STANDARD 2.13 CONDUCTING PARAllEl CIVIl AND
CRIMINAl INVESTIGATIONS
(a) In deciding whether to conduct a criminal investigation and
throughout any such investigation that is undertaken, the
prosecutor should consider whether society's interest in the matter
might be better or equally vindicated by available civil, regulatory,
administrative, or private remedies.

(b) When doing so would not compromise a proper
prosecutorial interest, and to the degree permitted by law, the
prosecutor should cooperate with other governmental authorities
regarding their investigations for the purpose of instituting
remedial actions that are of legitimate concern to such entities. In
the course of such cooperation, the prosecutor:

(i) should retain sole control of the criminal investigation and
maintain independent judgment at all times;

(ii) should be aware of rules that prohibit or restrict the
sharing or disclosure of information or material gathered through
certain criminal investigative techniques;

(iii) should not be a party to nor allow the continuation of
efforts by civil investigative agencies or attorneys to use the
criminal process for the purpose of obtaining a civil settlement;
and

http://yvvvw.americanbar.org/publications/criminal justice section archive/crimjust stand... 5119/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 29 of 38

(iv) may, in order to preserve the integrity of a criminal
investigation or prosecution, ask a civil investigative agency to
refrain from taking an investigative step or bringing an action but,
in considering whether to do so, should consider the detriment to
the public that may result from such forbearance.

(c) A prosecutor should consider the appropriateness of non-
criminal or global (civil and criminal resolutions) dispositions
suggested by subjects or targets, whether or not they choose to
cooperate, and may consider proposals by them to include civil or
regulatory sanctions as part of a disposition or cooperation
agreement.

STANDARD 2.14 TERMINATING THE INVESTIGATION,
!RETENTION Of EVIDENCE AND !POST-INVESTIGATION
ANALYSIS
(a) The prosecutor should diligently pursue the timely
conclusion of criminal investigations.

(b) The prosecutor's office should periodically review matters
under investigation in the office and determine whether the
interests of justice would be served by terminating the
investigation.

(c) The prosecutor should determine whether information
obtained in investigations should be made available for civil
enforcement purposes, administrative remedies, or for other
purposes consistent with law and the public interest.

(d) To the extent feasible, the prosecutor and members of the
investigative agencies should analyze investigations
retrospectively, to evaluate techniques and steps that worked well
or that proved to be deficient.

(e) Post-investigation analysis by the prosecutor's office should
include seeking to identify ways other than prosecution to prevent,
minimize or deter similar crimes from occurring in the future.

(f) Prosecutors should be aware of the requirements and office
practices regarding the preservation of investigative records and of
their compliance obligations with regard to information access and
privacy law provisions.

(g) To the extent practicable, the prosecutor should, upon
request, provide notice of termination of the investigation to
subjects who became aware of the investigation.

(h) Upon termination of the investigation and related
proceedings, physical evidence other than contraband should be
returned promptly to the person from whom it was obtained,
absent an agreement , court order or requirement of law to the
contrary.

http://v..r\vw.americanbar.org/publications/criminal justice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) [ Criminal Justice Section Page 30 of 38

STANDARD 2.15 GUIDANCE AND TRAINING FOR liNE
PROSECUTORS
(a) A prosecutor's office should be organized in a manner to
provide line prosecutors guidance consistent with these Standards.

(b) To guide the exercise of discretion, a prosecutor's office
should:

(i) encourage consultation and collaboration among
prosecutors;

(ii) appoint supervisors with appropriate experience, strong
skills and a commitment to justice and ethical behavior;

(iii) require consultation and approval at appropriate
supervisory levels for investigative methods of different levels of
intrusiveness, risk and costs;

(iv) provide regular supervisory review throughout the course
of investigations;

(v) regularly review investigative techniques and promote
best practices to reflect changes in law and policy;

(vi) create and implement internal policies, procedures, and
standard practices that teach and reinforce standards of excellence
in performance, professionalism, and ethics;

(vii) create and implement policies and procedures that
protect against practices that could result in unfair hardships, the
pursuit of baseless investigations, and the bringing of charges
against the innocent;

(viii) develop and support practices designed to prevent and
to rectify conviction of the innocent.

(ix) determine what types of investigative steps require formal
supervisory approval, and at what supervisory level, and

(x) require line attorneys to consult with supervisors or
experienced colleagues when making significant investigative
decisions absent exigent circumstances.

(c) A prosecutor's office should provide guidance and training
by:

(i) strongly encouraging consultation and collaboration among
line assistants;

(ii) appointing supervisors with appropriate experience and
strong commitments to justice, and fostering close working
relationships between supervisors and those they supervise;

(iii) providing formal training programs on investigative
techniques and the ethical choices implicated in using them; and

(iv) creating internal policies and standard practices regarding
investigations that memorialize and reinforce standards of
excellence, professionalism, and ethics. In doing so:

http://www.americanbar.org/publications/criminal justice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 31 of 38

(A) policy and practice materials should be regularly
reviewed and updated and should allow flexibility for the exercise
of prosecutorial discretion, and

(B) written policies and procedures should not be a
substitute for regular training for all office members and a
commitment to mentoring less-experienced attorneys.

(d) When a line prosecutor believes the needs of an
investigation or some extraordinary circumstance require actions
that are contrary to or outside of existing policies, the prosecutor
should seek prior approval before taking such actions.

(e) A prosecutor's office should develop policies and procedures
that address the initiation and implementation of the investigative
tools discussed in these Standards in advance of the specific needs
of an investigation.

STANDARD 2.16 SPECIAl PROSECUTORS, INDEPENDENT
COUNSEl AND SPECIAl PROSECUTION UNITS

(a) As used in these Standards, a "special prosecutor" or an
"independent counsel" is a prosecutor serving independently from
the general prosecution office under a particularized appointment
and whose service in that role typically ends after the purpose of
the appointment is completed. A "special prosecution unit" is
typically a unit that focuses on a particular type of crime, criminal
activity, or victim.

(b) Although the special prosecutor and the special prosecution
unit are removed from the responsibilities of a general prosecution
office, a prosecutor in this role should:

(i) be bound by the same policies and procedures as regular
prosecutors in their jurisdiction, unless to do so would be
incompatible with their duties;

(ii) base judgments about the merits of pursuing a particular
investigation upon the same factors that should guide a regular
prosecutor, including the seriousness of the offense, the harm to
the public, and the expenditure of public resources; and

(iii) in choosing matters to investigate, consider the danger
that the narrow focus or limited jurisdiction of the prosecutor or
the unit will lead to the pursuit of what would, in a general
prosecution office, be considered an insubstantial violation, or one
more appropriately resolved by civil or administrative actions.

STANDARD 2.17 USE OIF INFORMATION, MONEY, OR
RESOURCES PROVIDED BY NON-GOVERNMENTAl SOURCES

(a) The prosecutor may use information provided by non-
governmental sources that is pertinent to a potential or existing
criminal investigation. However, consistent with the principles in

http://-vvww.americanbar.org/publications/criminal justice section archive/crimjust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 32 of 38

Standard 2.1, the prosecutor should make an independent
evaluation of the information and make an independent decision as
to whether to allocate or continue to allocate resources to
investigating the matter.
(b) If the law of the jurisdiction permits the acceptance of
financial or resource assistance from non-governmental sources,
the decision to accept such assistance should be made with caution
by the chief public prosecutor or an accountable designee after
careful consideration of:
(i) the extent to which the law of the jurisdiction permits the
acceptance of financial or resource assistance;
(ii) the extent to which the offer is in the public interest, as
opposed to an effort to achieve the limited private interests of the
non-governmental sources;
(iii) the extent to which acceptance may result in foregoing
other cases;
(iv) the potential adverse impact on the equal administration
of the criminal law;
(v) the extent to which the character and magnitude of the
assistance might unduly influence the prosecutor's subsequent
exercise of investigative and prosecutorial discretion;

(vi) the likelihood that the community may view accepting the
assistance as inconsistent with the fair and equal administration of
criminal justice;
(vii) the likelihood that accepting assistance from private
sources may create an appearance of undue influence over law
enforcement; and
(viii) the extent to which financial or resource assistance
would enhance or enable the investigation of criminal activity;
(c) The prosecutor should consider the risk that encouraging
information gathering from non-governmental sources may lead to
abusive, dangerous or even criminal actions by private parties.

(d) The office of the prosecutor should have procedures
designed to protect the independent exercise of investigative
discretion from being influenced by the receipt of outside financial
or resource assistance, including careful accounting and
recordkeeping of the amounts and terms of such assistance and
clear disclosure that providing assistance will not guide the
exercise of investigative or prosecutorial discretion.
(e) The prosecutor , consistent with the law of the jurisdiction,
should disclose significant non-governmental assistance to relevant
legislative or public bodies having oversight over the prosecutor's
office and, when appropriate, the public.
(f) Non-governmental assistance should be disclosed to
affected parties as part of the discovery process.

h11rl"i/w-ww ::JmPrir::Jnh8ron:r/nnhlications/criminal iustice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 33 of 38

STANDARD 2.18 USE OF SENSITIVE, ClASSIFIED OR OTHER
INFORMATION IMPliCATING INVESTIGATIVE PRIVIlEGES
(a) The prosecutor should be alert to the need to balance the
government's legitimate interests in protecting certain information
from disclosure, and the legitimate interests and Constitutional
rights of the public and of defendants favoring disclosure.

(b) When appropriate, the prosecutor should request court
orders designed to protect the disclosure of law enforcement
means and methods, informant identities, observation posts, and
such other information that might jeopardize future investigations
or the safety or reputation of persons directly or indirectly involved
in an investigation.

(c) In investigations believed to have the potential to include
classified or sensitive information, prosecutors should seek to
obtain the relevant information and consult laws, regulations and
other requirements for handling such information before making
any charging decisions.

PART 3:
PROSECUTOR'S ROllE IN RESOlVING INVESTIGATION
PROBlEMS

STANDARD 3.1 PROSECUTOR'S ROllE IN ADDRESSING
SUSPECTED lAW ENFORCEMENT MISCONDUCT
(a) If the prosecutor has reason to suspect misconduct or
unauthorized illegal activity at any level of the prosecutor's office
or in any agency or department engaged in a criminal
investigation, the prosecutor should promptly report the suspicion
and the reason for it to appropriate supervisory personnel in the
prosecutor's office who have authority to address the problem, or
to the appropriate inspector general's office, or similar agency, if
reporting within the prosecutor's own office is problematic.
Reporting may also be required to comply with requirements of the
applicable rules of professional conduct, the Model Rules and the
law of the jurisdiction.

(b) If the prosecutor has reason to believe that a criminal
investigation or prosecution is, or is likely to be, adversely affected
by incompetence, lack of skilled personnel or inadequate resources
in the prosecutor's office or in any other relevant agency or
department, the prosecutor should promptly report that belief and
the reason for it to supervisory personnel in the prosecutor's office.

(c) A supervisory prosecutor who receives an allegation of
misconduct, unauthorized illegal conduct, or who receives an
allegation of incompetence, inadequate resources, or lack of skilled

ht1w//www ::Jl11Pri~::Jnh::Jr oru/nnhli~81ions/crimin::Jl iustice section archive/crimiust stand... 5/19/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 34 of 38

personnel that is, or is likely to, adversely affect a criminal
investigation, should undertake a prompt and objective review of
the facts and circumstances or refer the matter to an appropriate
agency or component responsible for addressing such allegations.
When practicable, the line prosecutor making any such allegations
should not be involved in subsequent investigation(s) relating to
the allegation(s).

(d) If the prosecutor's office concludes that there is a
reasonable belief that personnel in any agency or department have
engaged in unauthorized illegal conduct, the prosecutor's office
should initiate a criminal investigation into the conduct or seek the
initiation of such an investigation by an appropriate outside agency
or office.

(e) If the prosecutor's office concludes that there was not
unauthorized illegal conduct, but concludes that there was
incompetence or non-criminal misconduct, the prosecutor's office
should take appropriate action to notify the relevant agency or
department, and if within the prosecutor's own office, to impose
sanctions for the conduct.

(f) Decisions on how to respond to allegations of unauthorized
illegal conduct, misconduct, or significant incompetence should
generally be made without regard to adverse consequences on
pending cases or investigations.

STANDARD 3.2 PROSECUTOR'S ROlE IN ADDRIESSSIING
SUSPECTED JUDICIAl MISCONDUCT

(a) Although judges are not exempt from criminal investigation,
the prosecutor's office should protect against the use of false
allegations as a means of harassment or abuse that may impact
the independence of the judiciary.

(b) If a line prosecutor has reason to believe that there is
significant misconduct or illegal activity by a member of the
judiciary, the line prosecutor should promptly report that belief and
the reasons for it to supervisory personnel in the prosecutor's
office.

(c) Upon receiving from a line prosecutor, or from any source,
an allegation of significant misconduct or illegal conduct by a
member of the judiciary, a supervisory prosecutor should
undertake a prompt and objective review of the facts and
circumstances.

(d) If the prosecutor's office has a reasonable belief that a
member of the judiciary has engaged in criminal conduct, the
prosecutor's office should initiate, or seek the initiation of, a
criminal investigation.

(e) If the prosecutor's office concludes that a member of the
judiciary has not engaged in illegal conduct, but has engaged in

httn://v,rv,rw.americanbar.onr!nublications/criminal iustice section archive/crimiust stand... 5/1 9/2014
Standards on Prosecutorial Investigations (Table of Contents) I Criminal Justice Section Page 35 of 38

non-criminal misconduct, the prosecutor's office should take
appropriate action to inform the relevant officer of the judicial
authorities. Reporting may also be required to comply with
requirements of the applicable rules of professional conduct, the
Model Rules and the law of the jurisdiction.

(f) The prosecutor's office should take reasonable steps to
assure the independence of any investigation of a judge before
whom the prosecutor's office practices. In some instances, this
may require the appointment of a "pro tem" or "special" prosecutor
or use of a "fire-wall" within the prosecutor's office.

STANDARD 3.3 IPIROSECUTOIR'S !ROlE IN ADDRESSING
SUSPECTED MISCONDUCT BY DEFENSE COUNSEl

(a) Although defense counsel are not exempt from criminal
investigation, the prosecutor's office should protect against the use
of false allegations as a means of harassment or abuse that may
impact the independence of the defense counsel or the
Constitutionally protected right to counsel.

(b) If a line prosecutor has reason to believe that defense
counsel is engaging in criminal conduct, is violating the duty to
protect a client, or is engaging in unethical behavior or misconduct,
the prosecutor should promptly report that belief and the reasons
for it to supervisory personnel in the prosecutor's office.

(c) Upon receiving from a line prosecutor, or from any source,
an allegation of misconduct or illegal conduct by defense counsel, a
supervisory prosecutor should undertake a prompt and objective
review of the facts and circumstances.

(d) If the prosecutor's office has a reasonable belief that
defense counsel has engaged in illegal conduct, the prosecutor's
office should initiate, or seek the initiation of, an investigation into
the conduct.

(e) If the prosecutor's office concludes that defense counsel has
not engaged in illegal conduct, but has engaged in non-criminal
misconduct as defined by the governing ethical code and the rules
of the jurisdiction, the prosecutor's office should take appropriate
action to inform the appropriate disciplinary authority.

(f) The prosecutor's office should take reasonable steps to
assure the independence of any investigation of a defense counsel
including, if appropriate, the appointment of a pro tem or special
prosecutor or use of a "fire-wall" within the prosecutor's office. At a
minimum, an investigation of defense counsel's conduct should be
conducted by a prosecutor who has not been involved in the initial
matter or in ongoing matters with that defense counsel.

(g) The prosecutor investigating defense counsel should
consider whether information regarding conduct by defense
counsel should be provided to a judicial officer involved in

l111n:/ /\V\\iW 8meric8nh8rorg/nuhlications/criminal iustice section archive/crimiust stand... 5/1 9/2014
Standards on Prosecutoriallnvestigations (Table of Contents) I Criminal Justice Section Page 37 of 38

(a) The prosecutor should resist political pressure intended to
influence the conduct, focus, duration or outcome of a criminal
investigation.

(b) The prosecutor should generally not make decisions related
to a criminal investigation based upon their impact on the political
process.

(c) When, due to the nature of the investigation or the identity
of investigative targets, any decision will have some impact on the
political process (such as an impending election), the prosecutor
should make decisions and use tliscretion in a principled manner
and in a manner designed to limit the political impact without
regard to the prosecutor's personal political beliefs or affiliations.

(d) The prosecutor should carefully consider the language in
Standard 1.5 ("Contacts with the Public During the Investigative
Process") when making any statements or reports regarding a
decision to prosecute, or to decline to prosecute, in a matter that
may have some impact on the political process.

STANDARD 3.7 REVIEW AND OVERSIGHT OF CRIMINAl
INVESTIGATIONS BY GOVERNMENT AGENCIES AND
OFFICIAlS
(a) Prosecutors' offices should attempt to respond in a timely,
open, and candid manner to requests from public officials for
general information about the enforcement of laws under their
jurisdiction or about law reform matters. However, if public officials
seek information about ongoing or impending investigations, the
prosecutors' offices should consider the potential negative impact
of providing such information and should inform public officials
about such concerns.

(b) Generally, responses to public officials should be made by
high-ranking officials in the prosecutor's office who have policy-
making authority. Prosecutors' offices should resist allowing line-
attorneys to respond to requests for information by public officials.

(c) Generally, responses to information requests by public
officials should be through testimony or by providing pertinent
statistics and descriptive and analytical reports, and not by
providing information about particular matters. Prosecutors' offices
should resist requests for materials that are subject to deliberative
process or work product privileges related to pending criminal
investigations or closed investigations whose materials have not
otherwise been made public, and should oppose disclosure of
information that would adversely affect a person or entity.

(d) Prosecutor's offices may respond to requests about the
handling of fully adjudicated cases. Absent unusual circumstances,
information about adjudicated cases should be provided by high-

.I IV IV\ 1erican har.om/nuhlic8tions/crimin:1l ins1irte sPrtion :1rrhiw•/rrim inst s1~nrl "\/1 Q/?014
Standards on Prosecutoriallnvestigations (Table of Contents) I Criminal Justice Section Page 38 of 38

ranking officials with policy-making authority, and not by line
attorneys.

(e) The Prosecutor's office should establish clear and consistent
policies to address its responsibilities under public disclosure laws
and with regard to the public's potential access to closed matters.
The Prosecutor's office should provide sufficient resources to make
prompt and appropriate replies to any public disclosure requests.

Back to Top

Copyright American Bar Association, http://www"abanetorg

Crimi!l~l]uiiiccStciio:~

')/1 7
Standards on Prosecutorial Investigations (Table of Contents) Criminal Justice Section
J Page 36 of 38

overseeing aspects of the investigation in which the misconduct
occurred.

(h) The prosecutor investigating defense counsel who is
representing a client in a criminal matter under the jurisdiction of
the prosecutor's office ordinarily should notify the attorney and the
court in a timely manner about the possibility that potential
charges against the attorney may create a conflict of interest.

STANDARD 3.4 PROSECUTOR'S ROLE IN ADDRESSING
SUSPECTED MISCONDUCT BY WITNESSES, INFORMANTS OR
JURORS

(a) If a line prosecutor has reason to believe that there has
been illegal conduct or non-criminal misconduct by witnesses,
informants, or jurors, the prosecutor should seek supervisory
review of the matter.

(b) Upon receiving an allegation of unauthorized illegal conduct
or non-criminal misconduct by witnesses, informants or jurors, the
prosecutor's office should undertake a prompt and objective
review. If there is a reasonable belief that there has been illegal
conduct or non-criminal misconduct, the prosecutor's office should
initiate an investigation into the conduct. All relevant evidence
should be preserved in the event it must be disclosed if criminal
charges are filed against the individual alleged to have engaged in
the conduct.

(c) If the misconduct relates to the official duties of a juror or
witness, it must also be reported to an appropriate judicial officer.

STANDARD 3.5 IlliEGAllY OBTAINED IEVIDIENCE

(a) If a prosecutor reasonably believes that evidence has been
illegally obtained, the prosecutor should consider whether there
are potential criminal acts that should be investigated or
misconduct that should be addressed or reported. The prosecutor
should be familiar with the laws of their jurisdiction regarding the
admissibility of illegally obtained evidence.

(b) The prosecutor should take appropriate steps to limit the
taint, if any, from the illegally obtained evidence and determine if
the evidence may still be lawfully used.

(c) The prosecutor should notify the parties affected by the
illegal conduct at the earliest time that will not compromise the
investigation or subsequent investigation, or at an earlier time if
required by law.

STANDARD 3.6 RESPONDING TO POLITICAL PRESSURE AND
CONSIDERATION OF THE IMPACT OF CRIMINAL INVESTIGATIONS
ON THE POLITICAL PROCESS

http://'v'\,.Vv.americanbar.org/publications/criminal justice section archive/crimjust stand... 5/19/2014