Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

I've been out of the office for the last 2 1/2 weeks.- Not because I've been on vacation or doing something fun. Exactly the opposite -  I live in West, and my house was one of those destroyed in the fertilizer plant explosion. For the first 10 days after the explosion I learned what it must be like for our clients, who are at our mercy for knowledge about what is going on in their cases.

Since my house was one of those in the most heavily damaged zone we were not allowed back in for almost two weeks. Most people - myself included - left with nothing more than the clothes on their backs. They couldn't go back to pick up things like a toothbrush, new underwear and socks, and all those other things we generally take for granted. They also were in the dark about how badly damaged their houses really were - few people spent a lot of time surveying the damage since there was raging fire a short distance. Many were like me, and had family members - for me my daughter - calling and yelling at me to get out. For 10 days we were basically in the dark about what was going on.

I was more fortunate than most since I'm also the city attorney  (somebody has to do it) and got to sit in on most of the briefings. Even with that knowledge I still didn't know when we were going to get back. I couldn't control it, and didn't really have any idea how they were going to make the decision. I was anxious to get back in and try to salvage what I could, and determine how bad things really were.

It occurred to me that is how our clients often feel. They are worried about what is going to happen, and usually stressed out. They don't really have any idea what is going on, and how their future is going to be decided. The less they know, the more they worry. It is up to us as lawyers to help them through that by providing as much as information as we can, and helping them understand the process. We all know that, but sometimes we forget just how important it is.

For me, I now have a new appreciation for how important information and knowledge is.

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 The purpose of bail is to ensure the defendant shows up for a court. After all, everyone is presumed innocent until found guilty - so you shouldn't keep someone in jail before trial unless you have to. Public safety can also be considered, but generally a bond must still be set.

As a general rule the more serious the offense the higher the bond. The theory is that someone facing a lengthy stay in prison might not have a lot of incentive to show up in court. On the other hand, people charged with minor offenses generally show up to take care of their cases since not doing so only makes things worse. Bonds vary from county to county, but generally bonds for most misdemeanors are in the range of $1,000 - $5,000. That is, unless you decide to threaten a public official in Kaufman County.

Not surprising, everyone in Kaufman County is on edge, and I don't blame them. I've been practicing more than 30 years and I've never seen anything like this. You  expect the crazies to surface, and apparently they have. Two men have been arrested for terroristic threat - One of them, Nick Morale apparently called a tip hotline and made a threat against public officials. Not the brightest move, but it's only a Class A misdemeanor. You wouldn't know it by the bond though.

Morale's bond was set at one million dollars!!! In a lot of places a bond for capital murder wouldn't be set that high. So what did officials have to say about the bond - officials say they want to send a message they aren't going to tolerate that kind of conduct. So whether he did it or not, and no matter what the circumstances, he's going to be punished before he even gets to court.

This may be a new record for a Class A misdemeanor. Has anyone ever seen a bond for a misdemeanor set that high?

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The Court of Criminal Appeals issued an opinion in a mandamus action today that left me scratching my head. The case - In re Patrick McCann and Albert James Turner. involves an order that an attorney turn over his file to the lawyer who was working on a habeas application. What left me scratching my head was the way the case got to that point.

Apparently the habeas lawyer requested the file from the trial lawyer so he could prepare an application for habeas corpus. The lawyer refused to do so without a waiver signed by the client - nothing wrong with that, since you want to make sure the client consents. Apparently he didn't because he refused to sign the waiver.

Since he didn't have a signed waiver, the trial lawyer refused to turn over the file. The trial judge held him in contempt, and the mandamus was filed.

What left me scratching my head was why the client refused to authorize the release of his file so that the new lawyer could file his writ. Normally you want that information. After doing a little checking I may have found at least a partial explanation. It appears Mr. Turner was not happy with his trial lawyer, and moved to represent himself after he was convicted. According the lawyer Mr. Turner suffers from paranoia, which might explain some of his actions. In the meantime, the Court is going to decide issues that are going to have an impact. Here are the three questions they requested briefing on:

1. To whom does a client's file belong?

2. If the file belongs to the client (the defendant in the underlying case here), what are the possible consequences should the client refuse to turn over the file to subsequent counsel?

3. If the file belongs to the client and the client is unable or unwilling to decide whether to turn over the file, to whom does that decision fall (e.g. former counsel, subsequent counsel, trial judge, or guardian appointed for that issue)?
 

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Last week the Court of Criminal Appeals decided a case involving a discredited DPS lab analyst - Jonathan Salvadore. It had previously been discovered that Salvadore fabricated test results. In last weeks case the habeas applicant challenged the test results in his case - since it had been done by the same person. The Court granted relief, after sending the case back the trial court and learning that evidence had been destroyed, and therefore could not be retested.

This week they reviewed a case involving the same analyst, although in this case the evidence had not been destroyed. However, the result was still the same. The court held that since the evidence was still in the custody of the same analyst, custody of the evidence had been compromised.

These are significant decisions because of the assumptions used by the Court. Instead of having to prove the results were flawed in the case before them, they assumed any results would not be reliable. Not only that, they now assumed that they cannot trust the analyst  to main proper custody. This effectively means that any case involving Mr. Salvadore can be set aside.

Credit the court with doing what it can to maintain the integrity of forensic evidence. Hopefully decisions will have an impact on labs, and their personnel.

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 It's easy to become optimistic after attending a convention like this. All the forensic scientists understand the problems with using science, and want to fix them. I also heard several judges who clearly get it; one even talked about the disparate treatment given prosecution and defense experts, and the overall lack of scrutiny given by judges to scientific evidence.

One of the stories I heard pointed out the problem we still have - incompetence on the part of both defense lawyers and prosecutors. The story involved an identification hearing before a federal magistrate - another state was trying to gain custody of the defendant, and he was claiming he was not the person named in the warrant. The only testimony came from a fingerprint analyst, who was limited to poor quality photographs on the documents. What was remarkable was that the defendant didn't challenge the evidence, and the prosecutor didn't seek additional verification. Instead, it was the magistrate who took it upon himself to appoint a court expert - something I have never seen.

The failure of the defense lawyer to challenge the fingerprint identification is difficult to understand. When the client claims it isn't  him, and the evidence is suspect, that should be the first thing you do. Add on the problems that have been identified with fingerprints in general, and it's a no brainer.

The prosecutor doesn't get a pass either. He has a duty to ensure he is presenting accurate evidence, and should not have simply accepted the file as it was given to him. Were it not for the judge, the case would sailed right through the system.

Unfortunately, I don't think this is an isolated. Even though the NAS report has been out for several years, most lawyers still don't know about it. And even if they've heard about, they don't know what to do with it. It's no longer good enough to know the law - you now need to keep up with the science, and know where the problems are.

The lawyers, judges and prosecutors who go to these conventions get it. Unfortunately, that's a very small number. We need to do better at the spreading this knowledge to others. 

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 I just finished attending my third American Academy of Forensic Sciences convention. As usual, there were too many presentations to attend, and most of the presentations are far too short. Unlike most legal CLE, most of the presentations are only 15-20  minutes, which just lets you hit the high points.

It's been a couple of years since the NAS report came out, and it looks like forensic scientists are no longer complaining about it - and have accepted its here to stay. People are still defensive though, and I observed several people comment when it appears their particular discipline was being attacked.

I've spent a lot of time thinking about this issue, and while I don't  have answers, I do have some general observations. First, I don't think most forensic scientists are bad people, and out to help the prosecution. There may be a few, but I think they are the exception. Instead, I believe almost all forensic scientists think of themselves as impartial, and try to do the best possible job. As a result, they take offense when lawyers attack them. At the core, I think this reflects a basic understanding of human nature and psychology.

The fact is most forensic scientists work for state labs - as a result, almost all of their contact is with the state, whether it be police or prosecutors. We all tend to relate to those we hang out with. For the most part, they know the officers and prosecutors, and probably have spent a lot of time talking with them. They may even know a few things about their personal lives. If you don't believe this, think about the people you work with. There me be someone you hate, but for the most part you consider co-workers at least casual friends. If there was a dispute involving them and someone you didn't know, you would probably identify with your co-worker.  It's not a conscious decision - instead, you don't give it a second thought.

Why should forensic scientists be any different - they are people just like anyone else. While I don't think they consciously set out to take sides, they can't help but do so. They identify with the prosecution, and I have seen that demonstrated time and time again. When you tell someone you are a defense lawyer, more often than not they make a comment about being on the other side.

The problem is not with the individual scientists, but with the system. The decision to separate crime labs from the police and make them independent is another discussion. But I still don't think that will completely eliminate the problem. Because they still are going to deal primarily with the police and prosecutors.

Everyone involved has the same objective - to seek the truth. While we all recognize that, I don't think we have come to grips with the human dynamics involved.

I've got some more thoughts - particularly on the caliber of the people that attend these conferences, but I'll save that for the next installment.

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 Unless you've been out of the country or otherwise disconnected from the world you know that the court of inquiry involving former District Attorney (and current judge)  Ken Anderson was held last week. The purpose was to look into his actions in handling the prosecution of Michael Morton - who was exonerated after spending 25 years in prison.

Pamela Coloff with Texas Monthly wrote a terrific piece on the case, and also reported on the hearing. Her report of Anderson's testimony was telling for several reasons. He clearly did not believe he should be there, and made sure everyone knew it. Here's what she wrote:

The former Williamson County D.A. was defiant as he fielded questions by attorney pro tem Rusty Hardin; Anderson discounted the importance of the inquiry itself, struck a sarcastic tone, and cast himself as the victim of a “media frenzy.” He offered a vague apology to Michael Morton without taking any personal responsibility for his role in Michael’s wrongful conviction, stating that “the system screwed up” and that he could not think of anything he could have done more than a quarter century ago that would have caused a different outcome.

Michael Morton probably had the best insight into his testimony, stating:

“I think we saw someone who is still struggling with denial and anger. . . .This is a man who has been in a position of power for almost three decades, and for the first time has had to answer for his actions, and he’s very uncomfortable with that.”

Some people would be humbled by being placed in that situation. The fact that he wasn't tells you all you need to know about his character.

What I found telling were his complaints about the process - the same complaints that have probably been made by thousands of people he prosecuted. He's upset about spending his life savings against charges he believes are unfounded. Guess what - that's nothing new. Criminal defendants don't get reimbursed for the money they spend defending themselves when they are found not guilty. 

The fact that he's even complaining about the money he spent should be insulting. That pales in comparison to losing 25 years of your life. While Michael Morton was in prison, Ken Anderson was working - and accumulating those savings. He got to go home to his family every evening, and see his kids grow. Michael Morton got to watch life through prison bars.

Ken Anderson wants everyone to believe this was an anomaly - that this was the only innocent person he ever convicted. He wants the benefit of the doubt. How many defendants do you think he gave the benefit of the doubt? Prosecutors have a saying they love to use - the best predictor of the future  is past behavior. In other words - once a criminal, always a criminal. Prosecutors routinely look at criminal histories - and if a defendant has committed the same type of crime before, they feel a lot better about their case. If we use the same logic on Mr. Anderson, then we have to assume this same pattern of conduct was repeated hundreds of times over the course of his tenure as District Attorney.

I'm sure I'm not the only criminal defense who is amused at seeing the same techniques he used for years as a prosecutor being used against him. You would hope that this would generate a new respect for what criminal defendants experience - but I doubt it.

Whatever the outcome, it appears clear that Mr. Anderson didn't win any friends last week. And certainly didn't  help his case.

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 I'm still trying to comprehend the information Paul Kennedy shared about the number of court appointments some lawyers are taking/receiving. I would have guessed the lawyers who were milking the system were taking a couple hundred appointments a year. Boy was I wrong - the leading lawyer took 920 appointments in one year. That number included 278 felonies. That is a truly outstanding - and obscene number.

There was another lawyer with 894, one with 748, and a couple of lawyers who apparently got shafted - with only 500 appointments. Does anyone really think that's justice? That those defendants are receiving competent representation?

What can you do with that many cases? My guess is not much. You probably have time to talk to the prosecutor and get the plea offer. Maybe you even negotiate some - although I doubt it. You then go talk to your client and convince/coerce them to take it. And then go to the judge and get sentenced. Nice and sweet - can probably get it all done in a morning.

You can't have time to investigate and find out your client's full story. Nor can you have time to identify defenses, and file pre-trial motions. You sure don't have time to take the case to trial - my guess is none of those lawyers have tried a case in awhile. You know the prosecutor's know that - so what incentive do they have to make their best offer.

Years ago I served on the State Bar committee that developed standards and guidelines, which eventually led to the Fair defense act. The goal was to do away with this practice - and ensure that every defendant received competent representation. Clearly that didn't work - and frankly everyone predicted Harris County would be a problem.

There certainly isn't a shortage of lawyers in Harris County - and I'm sure there are a lot of young lawyers who would love some court appointments. So why not spread them around? My guess is money - these lawyers do it cheap. Or maybe they have some arrangement with the judges. There's another problem with that - other lawyers might investigate cases, litigate them and take some to trial - in other slow down the system.

This system is a disgrace and needs to be fixed. 

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 I've been involved in several innocence cases, and have been fortunate enough to be successful. I've also had a lot more where I have not been so lucky - people who I have no doubt are innocence, but cannot prove that in a court. I say lucky, because that is what you have to be. It is not enough to be innocent - you have to catch a lot of breaks.

Jeff Gamso pointed this out in the course of discussing a recently published book by Kirk Bloodsworth. Mr. Bloodsworth is somewhat famous among lawyers who handle innocence cases. He got off of death row through DNA testing, and then spent 9 more years trying to get the State to test the evidence and prove who actually committed the offense.

The instructive part of the story is what has to go right in a case like this. As Jeff writes:

What Kirk Bloodsworth needed was for random chance to go his way. Someone in a lab needed to find a spot of semen in a spot that FBI analysts specifically declared did not exist. Ultimately it did. He needed the DNA to not be degraded. He needed there to be enough for a retest. He needed a whole shitload of stuff to go right. Not right because the law would make it go right or because hard work would make it go right or because really good lawyers would make it go right. To go right because by chance it did.

Mr. Bloodsworth also recognizes that one more thing is necessary - he had to have a lawyer who was interested in his case - and who wouldn't give up. Unfortunately, there are far too lawyers like that. Far too many lawyers are interested only in how much money they can make. If a client doesn't have money, they aren't going to even look at it. You don't make money on cases like this - you actually lose money - a lot. They are extremely time consuming, and require resources that many lawyers pay for out of their pocket. They do it because they can't look the other away - they see an injustice and feel compelled to fix it. In short, the represent the finest traditions of the bar.

Over the last several years there has been an increase in the number of innocence projects - which offer the only meaningful chance for relief most defendants. Unfortunately, there are too few of them, and they are always underfunded. In short, they are overwhelmed - and  have to allocate their resources to have the most impact. - which often means rejecting cases that are going to require a lot of time and money, and where innocence may not be so clear.

We need to do better to correct mistakes when they are made. Relief should never be left to random chance. The entire justice system bears some responsibility for this - and its time for everyone to step up to the plate.

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