HARVARD MODEL CONGRESS
HERNANDEZ V. TEXAS
By Jake Miller
UNITED STATES COURT OF APPEALS
FOR THE 5TH CIRCUIT
NO. 63-8984
DANIEL Y. HERNANDEZ,
Appellant
v.
TEXAS,
Appellee
Appeal from the United States District Court
For the 72 District of Lubbock County.
nd
Argued: November 5, 2013
Decided: April 20, 2014
Before DEMOSS, CLEMENT, and ELROD, Circuit Judges.
HARVARD MODEL CONGRESS
FACTS OF THE CASE
On June 16, 2003, Detectives John Esserman and Frank Osburn of the Lubbock County
Special Investigations Unit, received a call at 9:10 am from a confidential informant, telling them
that a 33-year-old man by the name of Daniel Hernandez had a large quantity of crack cocaine
hidden in a Black BMW 7 Series with the license number L84AD8. Though the informant had
historically given the officers reliable information in exchange for money, the officers determined
the tip alone was not enough by itself to establish probable cause for a search. The detectives ran
Hernandez's name in a database and determined that he had a previous conviction in 1999 for
felony Driving While Intoxicated in Houston, which had caused him to lose his license for two
years and be placed on probation while taking part in a rehabilitation program. They also
determined that his current address was 1450 Avenue Q, in Lubbock, and began surveillance of it,
in hopes of gaining evidence for a search of his vehicle.
At 11:11 am, the detectives observed a man they believed to be Hernandez enter the car
matching the description and license plate and begin to drive. The detectives followed him in their
unmarked police car. On Flint Avenue, Hernandez began to drive quickly, well above the speed
limit. The officers at this point turned on their lights behind him. Hernandez pulled over to the
side of the road. Both officers stepped out of the car and informed Hernandez that he was
speeding. They then asked for his permission to search the vehicle. Hernandez responded, "I have
nothing to hide," and granted the search. For assistance, police called in Special Investigations Unit
K-9 officer, Michael Carter, and his dog "Scrappy Doo," to search the vehicle. Scrappy Doo
immediately began sniffing and scratching at the gas cap of the car. Police opened it and found a
sock containing a large plastic bag with 29 grams of crack cocaine in it. "I have absolutely no idea
how that got there," Hernandez claimed. He was taken into custody and charged with 1 degree
felony possession of a controlled substance, a Class A Felony. Following the arrest, the informant
was paid $300 by the officers for providing useful information leading to an arrest.
Hernandez was assigned a public defense attorney, and bail was set at $100,000, which
Hernandez could not pay. He gave a sworn statement when examined by the police claiming that
he went out for drinks the night before with a large group to watch his favorite basketball team, the
San Antonio Spurs, play in Game 6 of the NBA Finals. Video evidence confirmed that the group
went to Skooner's Bar and Grill and all began drinking heavily. Hernandez stated that he and one
of his closest friends, Ralph Fox, decided to play a drinking game at the bar they called "shot for
shot," where every time Tim Duncan made a basket, they would take a shot of vodka. Near the
end of the game, with Duncan making 12 baskets, both he and his friend had consumed enough
alcohol that they no longer were able to form memories. He stated that they both woke up the next
morning at Hernandez' house with splitting headaches unable to recall what had happened the
night before following the basketball game.
Hernandez stated that after a few hours of being awake, he departed his house to drive to the
local convenience store to get some medication for his head. Along the way, he decided to speed
up to about ten miles above the speed limit. As he sped up, he heard police sirens behind him. He
turned his car to the side of the road and pulled over, knowing that he had been speeding. He
claimed that the first time he ever saw the drugs found on his car was when the police pulled them
out of his gas cap. When asked if it was possible he had purchased the drugs the night before, he
claimed that this was impossible as he had never used drugs in his life, and would not have bought
them, even if he could not remember the previous night.
st
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When Assistant District Attorney Robert J. Docherty received the case, he believed it to be
very strong, likely strong enough to not have to go to trial. He also was aware that a conviction
under the felony charged carried a sentence with a mandatory minimum sentence of 20 years and
a maximum sentence of 100 years, he decided to offer a plea bargain to a lesser charge of 2
degree Possession of a Controlled Substance, a felony with no mandatory minimum and a
maximum sentence of 15 years. He offered the deal to Hernandez and his attorney. Hernandez
rejected it, maintaining that he did not possess the drugs. His attorney pointed out that this deal
was a substantial reduction, but Hernandez did not accept the deal. A trial was scheduled.
The day before the trial, Docherty reached out to Hernandez to tell him that he was rescinding
the offer supposing Hernandez remained uninterested. Hernandez asked for two hours to talk
things over with his attorney. Eventually, he decided to accept the deal. He pled guilty in Lubbock
District Court before Judge Anthony Peterson. In his guilty plea, Hernandez was asked whether he
knowingly possessed the drugs and said "no." His attorney asked to conference with him outside.
After conferencing with his attorney, Hernandez changed his statement to say that he did in fact
possess the drugs the night before. His plea was accepted, and Hernandez was sentenced to 7 years
in prison.
In 2009, detectives received information that one of their informants, Ralph Fox, had been
caught on camera planting drugs in a case. Fox admitted to the District Attorney's Office that he
had planted drugs in numerous cases, causing a widespread investigation of all cases Fox had
worked on, including Hernandez's. After an investigation, the District Attorney's office decided to
dismiss the case against Hernandez without prejudice and reverse his conviction.
Following his release, Hernandez spoke out actively about his false conviction. He announced
in a press conference that he would fire a wrongful conviction and malicious prosecution lawsuit.
His case received a good deal of media coverage, and Hernandez took a job as a professional
public speaker, speaking from town to town about his experiences in the justice system. Hernandez
won his wrongful conviction suit, settling out of court. After the victory, he announced publicly that
he was "not done yet. In addition to the fact that I was innocent to begin with, my constitutional
rights were violated throughout the process, and millions still face the same violations I did," he
announced. "The charges I faced were cruel and unusual punishment, and because I did not
understand the full extent of the charges against me and could not cross-examine the main witness,
I was pressured by the system to plead guilty to a crime I did not commit." Hernandez announced
he was filing a further civil rights suit for the constitutional rights violation.
nd
QUESTIONS PRESENTED
Does a prosecutor offering charge-reduction plea bargain create pressure on the defendant that
violates their Fourteenth Amendment right to due process or to a jury trial under the Sixth
Amendment?
Do mandatory minimums for drug sentences constitute cruel and unusual punishment in violation
of the Eighth Amendment?
Does police not disclosing use of a confidential informant constitute not informing the defendant
of the nature and cause of the accusation in violation of the Sixth Amendment, or a violation of the
Due Process Clause of the Fourteenth Amendment?
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CONSTITUTIONAL PROVISIONS
Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Eighth Amendment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the state wherein they reside. No state shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor shall
any state deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.
APPLICABLE CASE LAW
United States v. Jackson (1968)
An act that only allowed the death penalty in the case that a defendant did not accept a plea
bargain and went to trial was ruled unconstitutional as it "discouraged assertion of the Fifth
Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to
demand a jury trial."
Brady v. United States (1970)
The factor of the death penalty as a potential sentence generally does not make a case
unconstitutionally coercive insofar as the defendant willingly entered his guilty plea while being
“fully aware of the consequences."
Santobello v. New York (1971)
Though plea bargaining is “an essential component of the administration of justice," it is
unconstitutional to not allow a defendant to withdraw his plea if the original plea agreement
changes.
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Bordenkircher v. Hayes (1978)
It is not unconstitutional for a prosecutor to claim they will enhance charges if a defendant
does not accept a plea bargain. There is a legitimate interest in a state’s plea bargaining and
“threatening a stiffer sentence is permissible and part of any legitimate system which tolerates and
encourages the negotiation of pleas.”
Lockyer v. Andrade (2002)
Mandatory minimum sentences on "three strikes" laws were not "grossly disproportionate" to
other sentences available in the criminal justice system.
Kimbrough vs. United States (2007)
District Court judges could impose a sentence below the recommended range for crack
cocaine because of disparities in sentencing between crack and powder cocaine.
Burrage v. United States (2014)
Violent penalty enhancement, including enhanced mandatory minimum sentences, does not
apply to drug crimes the way it does for crimes such as assault, unless it is proven that drugs
directly lead to an individual's death.
Brady v. Maryland (1963)
Withholding exculpatory evidence when it is requested violates due process "where the
evidence is material to guilt or to punishment."
Giglio v. United States (1972)
Prosecution's failure to inform the jury of a witness being granted immunity in exchange for
testifying was a violation of due process.
Kyles v. Whitley (1995)
It is unconstitutional for prosecution to withhold evidence that is favorable to the defendant
even if it is not necessarily requested.
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MAJORITY OPINION OF THE COURT OF APPEALS
Justice CLEMENT delivered the majority opinion of the Court, joined by Justice DEMOSS.
A. Overview
nd
The 72 District of Lubbock found that no violation of the Constitutional rights Hernandez
asserted were violated in his prosecution. We hereby uphold the District Court ruling in favor of
Mr. Docherty, and do not believe that his situation constituted a violation of the Constitution in
any of the manners he argued before the Court.
B. Charge-Reduction Plea Bargaining
In line with the precedent set up in Brady v. United States, as long as a plea bargain is willfully
entered, it should be accepted. Though he changed his mind, there is no evidence that Hernandez
did not enter the plea bargain consensually. There is no evidence that he was necessarily coerced
into doing so. The argument that plea bargaining is naturally coercive does not carry sufficient
weight, especially given plea bargaining's necessary place in our justice system.
While plea bargaining has some issues, it may very well be the least unjust of the possible ways
to budget prosecution. Furthermore, plea bargaining is able to leave a number of the actors in the
justice system feeling as satisfied as possible. Prosecutors are able to secure guilty convictions
against those they believe to be guilty. Defendants escape potentially stricter sentences. A rational
person would, in theory, not accept a plea bargain unless s/he believed there was a strong chance
s/he would be found guilty, so some sort of justice may still be being upheld by the plea bargain.
Moreover, the guilty plea appears to those completely disconnected from the case as an absolute
upholding of justice, as someone who is openly confessing to a crime is being punished for
it. Therefore, plea bargaining does at least an acceptable job of saving money and upholding at
least reasonable amounts of substantive justice, even if it is just through saving money and time. It
must remain a part of our system and our processes.
C. Cruel and Unusual Punishment with Mandatory Minimums
Mandatory minimum sentences limit judicial discretion in cases and offer something of a
guarantee to defendants, but are not a cruel and unusual punishment when applied to drug cases.
The standard for cruel and unusual punishment is that the sentencing must be "grossly
disproportionate" to other laws in the country, or our more common sense of justice. Insofar as
many non-violent crimes can also carry mandatory minimums, such as the three-strikes law for
felonies generally, they are not necessarily unusual. Punishing drug crimes with a sentence
including mandatory minimums is also not grossly disproportionate to our understanding of justice
generally. Even if drugs do not cause the same degree of damage to others as assault and therefore
cannot get the same enhancements for punishments, it does not mean they shouldn't be punished
severely. Drugs harm individuals, and society more broadly. Getting them off the streets is an
important priority of law and one that is worth pursuing. Because of the many harms associated
with serious drugs such as crack cocaine, a strong punishment such as the one under Texas law is
not "grossly disproportionate," a very high standard to meet.
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Moreover, mandatory minimums are important as a check on judicial discretion that keeps
punishments from being disproportionate. Insofar as a judge must sentence within a range, for
crimes deemed serious by society's lawmakers, judges cannot rule too far away from the aim of the
general people. This prevents racism and other prejudicial factors in the justice system rather than
enhances them and is something worth keeping.
D. Disclosure of the Use of Confidential Informants
As precedent has established, it is important that defendants be given all exculpatory evidence
against them that could be useful for their case. In this case, probable cause for the stop was
initiated a different way: by a routine traffic stop. While the confidential informant's information
led officers to pursue the car, it did not appear relevant to the case at the time that an informant
was used insofar as the search was consented to, and probable cause for opening the gas cap was
established by the K-9, rather than by the information given by the informant themselves.
The fact that police should have been more diligent in checking the reliability of this informant
is something outside of the scope of this case, and that was settled in the wrongful conviction suit.
Police using unreliable informants should not discredit informants more generally, nor should it
mean that informants must be revealed as a part of evidence, if probable cause was established a
different way.
According to a study by the Drug Enforcement Agency, 55% of drug arrests involve
information from confidential informants. The police force relies on them heavily, and the way
that they are able to inform is by remaining confidential. Keeping them confidential is imperative
for society broadly. Moreover, establishing that every lead must be a part of evidence, even if
probable cause was obtained a different way, is a dangerous precedent that this court does not aim
to pursue.
E. Conclusion
In conclusion, while what happened to Mr. Hernandez in his case was unfortunate, none
of the rights he alleges to be violated were violated, and we affirm the District Court's ruling.
Affirmed.
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DISSENTING OPINION OF THE COURT OF APPEALS
Justice ELROD, dissenting.
A. Introduction
The majority has looked at this case idealistically, rather than practically, and has attempted to
justify practices that are outdated and overtly unconstitutional from the justice system. I dissent in
full to their ruling.
B. Charge-Reduction Plea Bargaining
Charge-reduction plea bargaining is logically abusive and is one of the main aspects of today's
legal system that leads to false confessions. There are many instances when it appears as though the
system is pressuring a defendant in the lower court to plead guilty when s/he does not actually
desire to, perhaps because the defendant is indeed not guilty, or simply because s/he wants to
exercise the constitutional right to trial. The pressure to plead guilty can come not only from the
prosecutor, but also from the either public or private defense attorneys. Defendants with public
defenders who do not want to plead guilty are commonly motivated to do so anyway if they are
offered a reduced charge and fear a harsher punishment if they go to trial and end up losing—
perhaps because of their attorneys’ incompetence—or because they do not want to give up hours of
their time going through long court sessions and trials to fight against a not particularly serious
charge in the case of. Making those accused of crimes go through game theory type of calculations
is not the point of the justice system, and this should not be integral to the process. The system
should be about guilt or innocence, and nothing else.
The majority claims that plea-bargaining is necessary for the system to function, as economic
rights can quickly become social ones. This seems unreasonable for one because a system with less
mass arrests for petty crimes, shorter trials, and less delays could also solve the problem of
overcrowding in the justice system. But more so, this fear may just not be substantiated empirically.
Looking at other nations such as England and Germany with similar legal systems, we can see that
those that abolished charge-reduction plea bargaining still function well.
Moreover, guilty pleas are less conducive to societal criticism or even controversy, as they, in
appearance, have defendants going along with the system. Guilt appears to make reforms of any
kind difficult. While the laws may be controversial, if everyone seems to be going along with it,
then the grounds for challenging it become harder. Harvard Law School guest professor, Harvey
Silverglate, stated in a 2013 lecture that, “plea bargaining not only teaches defendants to sing, but
also to dance.” Pleas of guilty in exchange for lower sentences allow for the system to efficiently
conclude cases in a way that makes the system in place ultimately harder to challenge and reform,
as on the surface everything appears consensual.
For the sake of due process and the justice system as a whole, this practice is unconstitutional
and should not be allowed.
C. Cruel and Unusual Punishment with Mandatory Minimums
Here we are in relatively new ground. The Supreme Court has not ruled particularly often on
mandatory minimums in sentencing, and never this directly. In this case, it is best to look
empirically to see what is cruel and unusual. Looking at mandatory minimums, we see that they
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emerge in drug cases disproportionately to other cases, with the long sentencing on average for
convicted first-time drug offenders in cases involving crack cocaine compared to any non-homicide
offense nationwide. This includes assault, battery, kidnapping, and sexual assault. These crimes are
all much more harmful to society than drug crimes, and therefore it is "grossly disproportionate"
that they are sentenced so severely and with such high mandatory minimums that these convictions
and long sentences occur.
D. Disclosure of the Use of Confidential Informants
Here the majority opinion is baffling. Just because probable cause can also be established in a
different way does not and should not mean that outside evidence is irrelevant. It is not the job of
the police to determine what is and is not relevant if it is part of a case, nor is it the police’s job to
try to find evidence in different ways to cover up how they initially got it.
Who on earth are we to say what is useful evidence or not? That's the point of a trial: to
critically examine all the evidence. When the defense doesn't know about these things, we get
situations like what happened to Mr. Hernandez. They are in the dark on what could have been a
huge break for their case. The spirit of the precedent is clear: the prosecution has a burden to
provide the defense with all of the information. They did not in this case, and this is a clear
constitutional rights violation.
E. Conclusion
The outdated precedent the majority used to justify the outdated laws it defends should be
overruled, but even if it remains, it does not apply in full. These laws are unconstitutional
violations of Mr. Hernandez and countless other members of society's rights, and must be struck
down.
I respectfully dissent.
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