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

Western Justice, as self proclaimed small town DA, recently asked the question whether defense promoters are lie promoters. The question he posed is whether a defense attorney whose client has confessed to him is promoting a lie when he goes into court and argues for not guilty verdict. You would expect that to strike a cord with a defense lawyer, and it did. My first reaction is how another lawyer cannot know how our criminal justice operates. I'm not aware of any jurisdiction where we ask a jury to find a client innocent or guilty; we ask them whether the state proved its case beyond a reasonable doubt. There is a distinction, and its an important one.

Walk into any courtroom in America, and you are probably going to hear the same arguments being made - "the State has not proved its case beyond a reasonable doubt." You can be guilty as sin, and if the State's doesn't prove its case, the jury has to find you not guilty (remember O.J.) So can you argue for a not guilty verdict, even if you know your client is guilty? If you can't you don't have any business being a lawyer.

Can you imagine what the situation would be if it was different.? No lawyer would be willing to represent someone they thought was guilty.  I guess you would have to defend yourself.  Surely, no one would think that process is fair.  We have an adversarial system, and for that to work, defense attorneys have to make the state prove their case.

That's not to say there are not a ethical considerations.  Sometimes, difficult issues arise, and each lawyer will have to resolve them on their own.  You can't point the blame only at defense lawyers though.  Prosecutors also have an obligation, which they too often ignore; they  have an obligation to see that justice is done.  You only have to look at the recent exonerations to see how the system can break down.  In many of those cases, there were obvious problems, and the state chose to look the other way.  Prosecutors have an obligation too, and it's not to accept what ever they are told, as long as it is consistent with their view of what happened.  They carry the weight of the government when the go into court, and most jurors want to believe what they say.  Some prosecutors occasionally forget this, and think their only obligation is to present the evidence to a jury, and let them decide. They are the initial gatekeepers, and need to always remember that.

I'm proud to be a criminal defense attorney, and represent the citizen-accused against the power of the government. And I'll continue to make the government prove its case - if they plan on taking away someone's liberty, society should demand no less.

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A recent Dallas Morning News editorial applauded District Attorney Craig Watkins for agreeing to scrutinize non-DNA case. I applaud him too; unfortunately, he is probably going to be in the minority. In fact, I would be surprised if any other elected District Attorney decides to follow his lead. In non-DNA cases, the knee jerk reaction is to fight them tooth and nail. In the absence of conclusive proof (like DNA) few prosecutors are going to agree that a person is innocent. I have seen this most often in recantation cases. Granted, most recantations are false, but many prosecutors refuse to acknowledge the possibility that at least some of them are true. If you plead guilty, your odds are even worse. Until prosecutors are willing to honestly accept the fact that there are a substantial number of innocent people of prison, this problem is not going to be resolved.

A recent blogger reported a prediction that the next wave of innocence cases will be arson convictions. I certainly hope that's true, because I have one. Almost everyone agrees that what was known about arson investigation back in 1980's was wrong; much of it was nothing more than "old wives tales". The result was that many fires were declared to be intentionally set, when they were probably accidents. These cases are unique, because you are not claiming someone else committed the crime; in fact, no crime was committed. Unfortunately, that has been the biggest hurdle to overcome, because many people refuse to believe that no one is responsible for the deaths that result from these fires.

DNA cases are easy, especially when you can prove who actually committed the offense. These cases are far more difficult, although the defendants are no less innocent. Judges and prosecutors are going to have to step up and do the right thing. I hope I'm wrong, but I think Mr. Watkins is going to be part of a very small minority. I hope voters don't hold that against him, and you know it will be an issue. Even if they do, I have no doubt he will be rewarded.

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A recent post by Austin criminal defense lawyer Jamie Spencer suggested that Jesus was the ultimate defense lawyer. I'm guessing there are a lot of people who disagree with that idea, and probably would get really worked up if someone suggested it. I'm thinking of those whose are sometimes referred to as the radical part religious right. I say radical, because I consider myself in alignment with a lot of the things they advocate. However, I also disagree with many of their positions, starting with the death penalty. I may be wrong, but I think many of them put criminal defense lawyers only slightly above the citizens we represent.

Several years ago I heard a conservative talk show host make ask the question "whether a criminal defense lawyer could be a Christian". Needless to say, that got me agitated, and kept me fuming for days. As with most things, some good came out of it, because it caused me to think.

I have taken to heart the teaching that we are going to be judged by how we treat the least among us. It's easy to be nice to those we like, and our friends, but it's far harder to be nice to those we despise. Unfortunately, the criminal justice system often revolves around the decidedly non-Christian concerns of retribution and vengeance. I've handled several death penalty cases, and one of the saddest things I've observed is how the victim's family is often consumed by hatred and vengeance. Those feelings take them away from their faith, while at the same time those on death row are often growing in faith. Unfortunately, that desire for vengeance is often fueled by the system. It is certainly fueled by politicians, who go to great lengths to avoid recognizing criminal defendants are part of God's creation also. The new concept of restorative justice may be the solution, but this is for another post.

Our job as criminal defense lawyers is to see the good in our clients, and make sure they are treated fairly. In doing that, we often advocate for some of the most despised people in society. In other words, we interact daily with the people Jesus would probably be with if he were walking the earth today (not to say that he isn't, but thats even more of a theological question) So would Jesus be a criminal defense lawyer? I don't know, but I'm confident he would be support the job we do.

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For many people, the Easter season is more than eggs and new clothes. It's about the central belief of Christianity - the death and resurrection of Jesus Christ. Most of us give some thought during this time to what happened almost 2,000 years ago. We know the story by heart. Since it involves a trial and punishment, its not surprising that parallels are drawn with the criminal justice system. In one post, the author provides an excellent description of the many infirmities in the proceedings leading up to the crucifixion. The conclusion of the post is that it was the ultimate mockery of justice.

You can't really argue with that; but I think you lose some of the impact of the story by comparing it to a criminal trial. No doubt it involved accusations and condemnation. However, the story had already been foretold thousands of years ago. Jesus faced what he had been placed on earth to do. We feel sorry for people who are unjustly treated, but in this case we can't separate the ultimate result from his suffering. By his suffering and crucifixion, he opened the gates to heaven for us all. Had Pontious Pilate had a backbone, or had he crowds recognized what was happening, our hope for eternal life would be in vain. I don't have the answers for how much of a choice everyone had, or whether they are ultimately accountable. All I know is that out of all this pain and suffering, we gained the possibility of eternal life.

So yes, it was a mockery of justice. For our sakes, thank goodness.

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In my career I've been blessed to help in securing the release of an individual who had been wrongly convicted of capital murder, and imprisoned for more than 16 years. As a result, I consistently have inmates and their families contact me about taking their case. I currently have a few such cases, and have a special interest in ensuring we identify those who are actually innocent. So a recent news story caused me a great deal of consternation. Two lawyers had received a confession from their client to a murder that someone else had been convicted. So they knew that an innocent person was in jail - and he stayed there from 26 years. The truth didn't come out until the client died, and the lawyers released the information (having obtained the client's permission to do so). As lawyer, we must always protect the confidences of our clients. In this one small way, we are like priests. So they were right in not disclosing the information. That doesn't mean they didn't have a few sleepless nights over the years. Not surprisingly, this has been the subject of comment. Sometimes being a lawyer is not all its cracked up to be.

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Sometimes its hard to come up with a defense a jury will believe. You generally need something more than I "didn't do it". Most good lawyers develop a "theme of the case" early on, and use that them throughout the entire trial. Sometime you have to think outside the box. Just how far "outside the box" is shown by a Japanese lawyer. His client, a Japanese professional model, had been charged with trespass. It was alleged she kicked a hole in the door of her boyfriend's apartment, and entered. Apparently she is fairly well endowed, which was the basis of the defense. Although she was convicted, the Appellate court acquitted her. They found that given the size of her bust, she could not have squeezed through the door. You have to wonder what kind of evidence they presented at trial?

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The power of federal district courts was reaffirmed by the United States Supreme Court in two decisions delivered yesterday. In Gall v. United States, No. 06-7949 (12/10/07), the District Court had departed downward, and sentenced Gall to probation instead of the recommened guideline sentence of 30-37 months. The Court emphasized again tha the guidelines are advisory, and no longer mandatory. A district court must consider the guideline sentence, but is free to vary from that sentence if it believes that is appropriate. The court noted that the District Court is in the best position to determine what sentence is appropriate. That decision should be reviewed only to determine if the court abused its discretion. As a result, as long as the Court considers the proper factors, it is free to impose a sentence outside the recommended guideline range.

The other case is Kimbrough v. United States, No. 06-6330 (12/10/07). In that case, the Court determined the disparity between sentences for crack cocaine and powder cocaine was not reasonable. The court looked at the sentence for the same amount of powder cocaine, and ultimately imposed the mandatory minimum sentence. The issue was whether the court could impose a sentence based on its disagreement with the sentencing guidelines. Since the sentencing commission has been trying for several years to change the crack cocaine guidelines (and finally did so this year), the court had no problem in holding that was a proper consideration.

The practical effect of both these cases is that District Courts should feel like they can impose a non guideline sentence without fear of being second guesssed by a Court of Appeals. As long as the court articulates the proper factors, the Court of Appeals should defer to the District Court's decision on punishment. It is now the attorney's job to convince the court that a particular sentence is appropriate; Attorneys can again be advocates for their clients.

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It has become common to see reports of people being released from prison after establishing their innocence. The majority of those cases involve DNA evidence, which is not suprising. Almost no one can argue with the results of a scientic test that can establish someone did not commit an offense. Unfortunately, DNA testing can only be done in a small number of cases, and there are no such tests that can be used in other types of cases.

Since it is now accepted that innocent persons are convicted, many people wonder how many innocent persons there are in prisons across the country. A few people have tried to come up with formulas to determine how often innocent persons are convicted. Some people have argued the rate is somewhere between .27% and .65%. However, the process for coming up with those numbers often does not account for the limited number cases in which scientific evidence is available. To come up with an accurate number, you would have to compare the number of exonerations with the number of sexual assault and murder convictions, since those are the type of cases in which physical evidence is often available. Of course, some allowance has to be made for the number of cases that are not tested, since only a handful of cases are ever subject to post-conviction review.

Recently, the Virginia Department of Forensic Science found a number of closed rape cases with untested DNA evidence. So far, out of 29 cases tested, 2 wrongful convictions have been uncovered. If that ratio remains consistent, the error rate would be 7%. A review of death cases by law professor at Seton Hall University produced an error rate of 2.3%. While those percentages might seem low, the real life affects are enormous; With a 2% error rate, there are 20 innocent persons for every 1,000 convictions.

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Thankfully, we don't see bite mark testimony much anymore. Not so long ago, before the advent of DNA technology, this was the latest scientific fad. A so called expert would come in and say that bite marks on the victim were a match to the defendants teeth. Often, it was not even clear whether the marks were bite marks or something else. That didn't stop these so called experts from raking in thousands of dollars though.  One of those was a small town dentist in Mississippi. Dr. Michael West testified in two separate trials in 1992 and 1993. Fortunately for them, another person was recently addressed and ended up confessing to both cases. A panel of experts had been asked to review the evidence, and determined that the marks were caused by crawfish nibbling on the corpse and decomposition in one case, and scrapes in another case. In the interim, Dr. West resigned from the American Board of Forensic Odontology after several ethics complaints.

Forensic odontology is only one of the areas of junk science has recently been challenged. Unfortunately, similar types of testimony are consistently used to obtain convictions. The bigger issue is the use of science that is dependent on individual interpretation. Any time two people can look at the same thing and come up with different conclusions, that testimony does not belong in a criminal court. Unfortunately, jurors still believe the State experts. Our job as defense lawyers is to continue challenge the science, and not accept their opinions without scrutiny.

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