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Protecting Teachers vs. Privacy of Juvenile Record

A bill recently passed by the Texas Legislature, and sitting on the Governor's desk for his approval, is a statute that would reveal to teachers almost all the juvenile records of their students. The Legislation arose out of the stabbing death of a teacher in Tyler, Texas, by a juvenile who had a criminal record for violence.

Both the goal of protecting teachers, and giving juveniles an opportunity to start with a "clean slate" by protecting their privacy, are worthwhile goals. The balance that needs to be struck between the two is to limit the disclosure statute to those acts that would truly put a teacher in danger.

For example, a juvenile convicted of acts of violence (e.g. sexual assault, robbery, murder, etc.) would certainly demonstrate a predisposition to cause serious bodily injury or death to a teacher during an attack. However, the possession of marijuana or even shoplifting would normally not present a danger, or, at least, not enough of a realistic danger to a teacher, to warrant the complete disclosure of all the criminal records of all juveniles.

To minimize doubt about which juvenile records should be disclosed and which should not, there could simply be a categorical list included in the statute or promulgated in the Texas Educational Association's regulations.

If one of the policies behind the confidentiality of juvenile records is to help juveniles get employment in the future, then the disclosure of only violent crimes committed by the juvenile would be consistent with that goal for this reason: While a background check that shows violence and dishonesty will preclude most job opportunities, a history of dishonesty is normally not going to be a basis for a threat of physical harm to a teacher. If, for example, a juvenile had a shoplifting case against him/her and it was not disclosed to a teacher or a prospective employer, then the juvenile has the chance to start his/her life over without a public criminal record; and, hopefully, he/she has learned his/her lesson by having gone through the juvenile justice process.

On the other hand, if that shoplifting case is disclosed to the teacher and then, within the seven years the information must be kept (under the new proposed statute) by the receiving school or other agency, the criminal information, no matter how minor, will foreseeably get out to or other private enterprise databases. Then, one of the two goals, noted above, with regard to confidential juvenile records, is completely destroyed. For example, if that criminal information is obtained (with the hundreds of people who have access to it, it is almost inevitable that many juvenile criminal records will be accessed) by a potential employer, the juvenile, whenever or wherever he applies for a job, will find his chances of employment have diminished tremendously.

The Statute SB-1106 has three flaws: First, the criminal records may now be disclosed to a laundry list of agencies, including, Health and Human Services; Department of Public Safety; Texas Education Agency; any Independent School District; a Juvenile Justice Alternative Education Program; a charter school; a local mental health or mental retardation authority; a court with jurisdiction over juveniles; a District Attorney's Office (already accessible under current law); a County Attorney's Office (already accessible under current law) and a children's advocacy center.

The second flaw is that each of those agencies may not destroy a disclosed juvenile criminal record for seven years from the date they received the information.

The third flaw, and, perhaps, the most important flaw of this prospective legislation, is that it does not distinguish between violent offenses and non-violent offenses; that is, juvenile conduct which would be considered a felony or conduct which would be considered a misdemeanor. It is a wholesale disclosure of any and all juvenile conduct where the juvenile (1) "was taken into custody" or (2) referred to a juvenile court for "allegedly engaging in delinquent conduct" or (3) for "conduct indicating a need for supervision," and (4) "allegations," even if those allegations are found to be not true. These four categories cover approximately 80% of all juvenile matters. The law is also not clear with regard to the category of "being taken into custody." Almost all juveniles are taken into custody temporarily before they are released, if they are, to their parents.

This bill paints with much, much too broad of a brush.

As part of the Democratic process, the content of this blog has been sent to the Governor's office today, Tuesday, June 14, 2011, at approximately 11:00 a.m.

A Lawyer Talks to a Victim

Question: "Can a lawyer talk to a victim?"– An innocent, young African-American man is falsely accused by a young white man of robbing him. The young white man (alleged victim) was actually attempting to purchase marijuana from the African-American male when the police came to the scene. The would-be marijuana purchaser got scared and lied to police, saying that he was being robbed by the young African-American man. Before the trial, the defense lawyer for the African-American sees the white male outside the courtroom waiting to testify falsely. The defense lawyer speaks very harshly to the young, white, would-be marijuana purchaser about lying and convinces him to go into the courtroom and tell the truth. However, the truth is exactly opposite to what the young white man has already told the prosecutor and had testified to in an earlier hearing. The prosecutor then accuses the defense attorney of unethical behavior and tampering with the alleged victim/witness.

Prosecutor does not represent the victim – How many readers think that the defense lawyer is guilty of unethical behavior because he was intimidating a witness into changing his testimony? A lawyer may talk to the victim in a criminal case without consulting the prosecutor, because the prosecutor is not the lawyer for the victim, and the victim is not the client of the prosecutor. However, while a defense lawyer may talk to a witness, he cannot cross the line of intimidating the witness or else he will be subject to prosecution for tampering with the witness.

Proper conduct for a criminal defense lawyer in this situation – A more experienced criminal defense attorney in this situation would have gone to a person standing nearby, such as another lawyer, or a bailiff, and told him or her that he was going to talk to a witness and then he would have asked the bystander to position himself close enough so that he could hear the conversation between the lawyer and the witness (e.g., the alleged victim). Then, if the lawyer is later accused of witness tampering, the lawyer has a bystander-witness to describe to the jury what actually happened. The jury will then decide whether the witness, who was emphatically scolded by the lawyer, was intimidated into changing his testimony, and, if so, whether the witness was persuaded to tell the truth, or whether the witness was lying because he was intimidated by the lawyer.

Witnesses are told not to talk to defense lawyers – In real life, almost all prosecutors try to persuade prosecution witnesses, including the victim, not to talk to the defense lawyer. But, any witness, including the victim, has a right to talk to the defense lawyer. Moreover, for a defense lawyer to conduct due diligence in preparation for his trial, he should try to interview the victim, either in the presence of his investigator (who should tape record the conversation), or just have the investigator interview the witness without being accompanied by the defense attorney.

Can a Woman’s Spiked High Heel be a Deadly Weapon?

Question: Can a woman's spiked high heel be a deadly weapon? Answer: Yes. Almost anything, including fists, when used in a manner intended and capable of causing serious bodily injury or death, can be considered a deadly weapon.

Legislative lobbying


Mr. McColl has been involved in successful legislative lobbying on specific bills for specific clients intermittently over the last 27 years. These pieces of legislation usually, but not always, involve some criminal law element.

For example, bills have been introduced to provide a jury trial issue for a Defendant accused of having intimate sexual contact with a person 15 or 16 years old, accused of having intimacy which is under the age of consent, when the alleged victim admits that the sex was consensual and has purposely misled the defendant with physical evidence (such as a false driver's license or website) as to his/her age.

The legislation was designed to allow the Defendant to have the jury decide the issue of mistake of fact (as to age), because, presently in Texas and in most states, the Defendant currently cannot have a jury trial on that question.

Other legislative efforts by Mr. McColl have involved ameliorating the sex offender registration requirement of a defendant. For example, in situations involving sexual offenses, where there was clearly consent from the Complainant to the sexual contact by the Defendant; and legislation that extinguishes the requirement for registration in such situations after a shorter amount of time presently required and after appropriate proof of consent and the maturity of the Complainant at the time of the incident.

McColl has drafted and introduced other legislation on non-criminal topics, such as to create more Due Process for medical care providers with their regulatory boards, as well as legislation exempting his clients' lotto machines from the definition of a slot machine; and McColl obtained a specific Texas Attorney General's opinion stating that the clients' computer game was legal under Texas law.



Polygraph tests have been admitted both as evidence in trials and held to be "valid scientific evidence," see Gibbs v. Gibbs, 210 F.3d 491 (5th Cir. 2000); also, polygraphs are admitted in pre-trial proceedings. United States v. Posado, 57 F.3dd 428 (5th Cir. 1995); Bennett v. City of Grand Prarie, 883 F.2d 400 (5th Cir. 1989). Further, in United States v. Lindell, 881 F.2d 1313, 1326 (5th Cir. 1989), the court held that impeachment evidence includes polygraph results for purposes of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10L. Ed. 2d 215 (1963).

Mr. McColl has extensive experience in polygraphs used for both legal submission to a court as well as part of court ordered therapy. As such, he is experienced in challenging both polygraph examiners and sex offender therapists who force offenders to use the services of specific polygraph examiners. Some sex offender therapists deny their clients the use of polygraph examiners who are both licensed and current on continuing education - examiners who are often geographically closer, less expensive and more experienced. Such an attempted restriction is not permissible under the applicable rules and regulations governing either therapists or polygraph examiners or under state or federal law, in Mr. McColl's professional opinion.

Additionally, Mr. McColl has worked closely with polygraph examiners to develop appropriate polygraph questions, especially for Zone of Comparison polygraph tests. Mr. McColl is analytically sensitive to the honest mistakes that creep into polygraph examinations, and is also aware of the high inaccuracy rates of both maintenance and monitoring polygraph examinations, despite the fact that they are continuing to be used throughout the State of Texas. These maintenance and monitoring polygraph tests (screening tests) are given periodically and typically at the end of each six months or one-year period of probation. The high inaccuracy rate has been publicly noted by a former president of the American Polygraph Association and is presently a matter of concern within that organization.

Mr. McColl has also challenged sex offender therapists who deem clients to be "uncooperative" when that determination is based solely on the client's desire to use a polygraph examiner not on the therapist's restricted list. Some therapists use the threat of termination from treatment and probable arrest unless the client employs one of the therapist's selected polygraph examiners. This practice is not allowed under the applicable state and federal laws and regulations, in Mr. McColl's professional opinion. Mr. McColl is aware of federal and state litigation regarding this kind of attempted exclusivity with regard to the therapists and the polygraph examiners.

Mr. McColl is further aware of the importance of "blind" scoring of polygraph charts to corroborate the polygraph results. He has often obtained test results from three polygraph examiners acting independently of each other. The importance of blind scoring is to get objective appraisals of the accuracy of a chart from other examiners and professional experts. There is an unavoidable element of subjectivity in the grading of these charts. Mr. McColl has used professionals with both state and federal government law enforcement backgrounds outside of the State of Texas to do these blind confirmation studies. These studies substantially strengthen the impact of the polygraph test being given to the prosecutor or being attached as an exhibit to a motion before a court.

Mr. McColl has, over many years, analyzed the applicability of various state and federal cases on the subject of the admissibility of polygraphs as evidence in court before both judge and juries. He is aware of the differences in the admissibility of polygraphs as evidence among state and federal jurisdictions. Mr. McColl has cited to Texas courts, on several occasions, cases in which polygraph evidence was admitted into evidence, for the decision of an issue that is before the Court alone and not the jury.

In pretrial matters the attitudes of prosecutors and members of law enforcement vary widely with regard to polygraphs, but the majority of law enforcement, prosecutors and judges give credence to polygraph tests. That validity is strengthened when the results are confirmed and re-confirmed by independent analysis and evaluation as noted above.

Mr. McColl is aware of false accusations made by children and has obtained acquittals based on his cross-examination of those child complainants who falsely accuse adults, especially when those accusations arise during divorce proceedings, family disharmony, family dysfunction or other litigation. Often a cleared polygraph test by the citizen-accused is key in refuting such accusations either pre-trial or to set aside a conviction in post-conviction proceedings, both of which Mr. McColl has accomplished.


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