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

ne of the blogs I enjoy reading is Zen Habits. I've picked up some great tips organization, productivity and keeping things in perspective.  Sometimes there is also information that specifically apply to lawyers. recently he wrote about expertise, and how long it takes to achieve expert status - his answer was at least 6 years.

I'm sure that's not what new lawyers want to hear; they come out with a law degree, and consider themselves experts. Many aren't shy about telling you about their expertise; just google criminal lawyer or any variation thereof. There's no criteria for when you can declare yourself an expert - its up to each lawyer to decide themselves. Unfortunately, most of those who consider themselves experts aren't; and those who don't consider themselves experts really are.

I agree to a point with Zen Habits - you can't become an expert in anything less than 6 years. However, just because you've reached that mark doesn't mean you are instantly an expert. I wish that were the case - I've got 27+ years under my belt. That means I've been around, but doesn't make me an expert. I like to think I'm really good at certain things - but certainly not everything that relates to criminal law.

When I first started I had an older lawyer tell me it took at least 5 years to figure out what you are doing and get a practice started. I thought he was crazy, but he was absolutely right. I've seen it time and time again, and finally started giving the same advice.

Expertise requires more than knowledge. It also requires experience. More importantly, it involves perspective. Not only do you need to know how to do something, you need to know when to do it. Contrary to what most people think (especially defendants and new lawyers) practicing law requires more than knowledge. Good lawyers have intangibles that others don't possess. One of those intangibles is a passion for justice and a desire to ensure their clients are treated fairly; many times those desires conflict with economics. In other words, if your only interest is in making money, I don't think you are ever going to become an expert.

The internet is a great thing - but it can't make you an expert without experience and desire. you still need to put in the time. sorry - there is no short cut.

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It's Halloween, which means probation offices across the country will be gathering up sex offenders and hosting a special kind of "party". I'm not sure who was first to come up with idea, but its clear that it caught on quickly. That's not surprising, since anything that punishes sex offenders is always going to popular. What is surprising is that it was not a reaction to an acual problem - merely a perceived problem.

The thinking goes that sex offenders will prey on children when they come to their house for trick or treating. I'm not aware of that ever happening, and I have a hard time understanding how it could. I'm reasonably sure most parents are like me, and took their kids trick or treating. Does anyone ever actually let their kid go iinside someone's house? If they did, would you let them stay more than 30 seconds? Of course you wouldn't - if there is ever a time when parents are watching over their children, its during halloween.

The reality is that most sexual offenses against chldren are not spontaneous and randon; in other words, they don't see a kid and molest them. That does happen occassionally, but its more common that sex offenders groom their victims over extended periods of time. It's also a sad fact that most sex offenses against children are committed by people they know, and have some relationship with - that's how they are able to keep it hidden.

Scott Greenfiled has a timely post on assumptions and common sense. As he points out,  most people make decisions on facts they assume - and not actually know. As we all recognize - most of the time reluctantly - assumptions are often not based on facts. I think this action is one of those assumptions that is not based on actual facts. Has a child ever been assaulted on Halloween by a sex offender?

We need to protect our children (and for me now grandchildren), but we need to do things that actually make them safer. I'm not convinced this does anything but create more work for probation officers. Wouldn't they rather be with their children, instead of baby sitting sex offenders.

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I saw a story in the Dallas Morning News this week about two men whose guilt was confirmed following post-conviction DNA testing. What caught my attention was that a hearing was being held to do this.

It's not unusual for DNA tests to come back and confirm a defendnt's guilt. For whatever reason, guilty defendants still insist on DNA tests. I wrote about that some time ago, and still don't have a a good answer. Under the Texas Statute, a defendant can request testing in certain situations. The Statute doesn't provide a remedy - it just authorizes the judge to order a test. If the test comes back in favor of the defendant, you either have to file a writ of habeas corpus or seek a pardon from the governor. The Statute does give the court authority to release a defendant on bond while you are waiting for the court or governor to decide. That is usually done after a hearing.

I don't understand why you need a hearing if guilt is confirmed. Are there different levels of guilt, and the judge is going to say they are more guilty than they were before?

To hold a hearing you need a defendant, which generally means you have to bring them back from prison. Obviously that takes manpower, both for transportation and processing. Most times courts don't want to bring defendants unless they really need to. I'm sure the local sheriff is not happy about increasing the jail population. Apparently this important enough though to devote the resources, as well the court's time.

The obvious answer to the question is that it is all about politics. Dallas County  has led the State and the Country in exonnerations. I guess the District Attorney wants everyone to know they are not opening the jail doors, and still have an interest in prosecuting people.  I'm a big fan of Craig Watkins and the work he has done in ensuring justice for those who have been wrongly convicted. That doesn't mean he can't make mistakes though, and I think this is one.

I can only hope the defendant knows before  he goes to court what the results of his test are.

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I recently attended the 10th annual march against the death penalty in Austin. I'm not big on marches and rallies - i think that was only the second one I've been to in my life. I went because I was invited to talk about the case of Cameron Todd Willingham. He was the centerpiece of the rally, and his picture was everywhere. Everyone there is convinced that this is the case that will change public opinion on the death penalty - I'm not convinced.

I've given this a lot of thought, and finally realized that this argument - that people's minds will change if they are convinced an innocent person was executed - involves an underlying assumption. The assumption is that general public will really care. I don't mean care in the sense that they believe it was a terrible thing, but care in the sense that it personally effects them. You only have to look at the most recent public opinion polls to know this is true - the majority of people already believe an innocent person has been executed, but they still support the death penalty.

I think the problem is that we have lost the sense that human life is sacred. The majority of anti-death penalty supporters are just as guilty as everyone else. My sense is that most in the anti-death penalty camp don't believe human life is sacred from the moment of conception. On the other hand, the majority in the anti-abortion camp have no problem with the death penalty, and often times are its most ardent supporters.

Almost 30 years ago (1968 to be exact), Pope John Paul II authored an encyclical - In Humanae Vitae. In that document he made a number of predictions, many of which have been proven to be true. Pope John Paul II also coined the phrase "culture of death". His theory was that we live in a culture of death because we no longer value human life - which is a reflection of the divine.

I think he was right on. You don't have to be Catholic - or even religious - to recognize the problem. In my opinion, beliefs about the death penalty are not going to change until peoples beliefs about the sacredness life change. I'm not knocking the anti-death penalty crowds - I admire their passion, which is something missing from far too many people. I simply believe that is going to take more than proving an innocent person was executed to cause a change in attitudes.

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The coverage of Cameron Willingham continues to new issues daily. It's hard to choose what to comment on - I could easily spend the whole day setting out my thoughts (not to mention answering questions from reporters. BTW if any reporters are reading this, my secretary won't give you any inside information, or my "cell phone number - does that ever work) The decision was made easy by Todd's trial attorney going on CNN -  sounding more like a prosecutor than a defense lawyer.

Mark Bennett addressed the in interview in his usual insightful manner, and tried to answer the question of whether he violated the bar's ethics rules. I don't have an answer for that, but I am sure that his conduct is not what people expect from their lawyers - and they shouldn't expect. You don't expect your lawyer to bad mouth you, even if you didn't get along with them. Although I don't think its in the rules, as a lawyer you ought to have some duty to not damage your client. At the very least, Mr. Martin is damaging Todd's reputation, and his ability to obtain some relief in through the forensic commission. The fact that he aligning himself with Gov. Perry ought to tell you something.

The hippocratic oath for doctors says to "never do harm" to thier patients. As far as I know lawyers don't have similar oath - but certainly its implied. Clients expect their lawyers to protect them - why else would you hire a lawyer. Unfortunately, lawyers put their own interests above those of their clients.

You might say you have no duty to your client after they die. To me, that's a cop out. I consider Todd my client. and will do whatever can to clear his name. I have the same feeling for any client. I've represented some pretty despicable people, and I would never bad mouth them in public. I listened to mother when she said if you can't something good about someone, don't say anything.

Scott Greenfield asked why he would make those statements. He can't answer that question, and I don't think anyone can come up with a logical explanation. No one is suggesting he is why his client was convicted and executed. We all didn't know then what we know now about arson science. It would be easy enough to say I did the  best I could - if I had the reports that are out now, the result may have been different. No one could argue with that position.

In my opinion he has created questions about his representation. It's one thing to think your client is guilty - in truth, most of them are. They still has the burden to prove guilt. Mr. Martin's comments appear to show more - a dislike, maybe even hatred of his client. Nobody says you have to like your clients; but it shouldn't affect your representation. You have to wonder now if his feelings effected his representation. He's basically become more of an advocate for the prosecution than the State.

Jeff Gamso had one of the more insightful insights - I wish I could have said it as well:

And then there's the matter of going on the air to declare his client guilty. Why in the world would he do that? To garner business? Unlikely. That's not the way you attract clients. For the glory of national television? Some people just can't resist. Whatever the reason, he was wrong. Whatever he was thinking, he wasn't thinking enough. That duty of loyalty. That obligation not to disadvantage. That lack of judgment. That putting his own interests before his client's.

He's right that you don't need to believe your client innocent to provide a stellar defense. As I said, innocence is, ultimately, irrelevant to the work we do. Proclamations of guilt are something else.

It really is inexcusable. Really. Inexcusable.
 

I don't know if Mr. Martin is still practicing law; I certainly hope he's not practicing criminal law. If I were potential client, I would certainly question how dedicated he was going to be.

___________________

Thanks for Jeff Gamso for pointing me to Rants of Public Defender - which also has a great comment on Mr. Martin.

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Thanks to Scott Benson at Grits for Breakfast for letting us know about the decision holding the head of the Texas Parole Board - Rissie Owens - personally liable for violating an inmates rights. The case involved an inmate who was serving time for a non-sexual offense. As the parole board is fond of doing, they looked through his record and decided he was a sex offender, and imposed sex offender conditions of parole. They did so without a hearing, and without letting him review the evidence they used to  make that decision.

The fact that the board violated his rights wouldn't be enough to impose personal liability though. The problem was that the same judge - Sam Sparks - had previously held (twice), that such hearing were necessary, and ordered the board to provide them. Owens defied those orders, apparently on the advice of her lawyer. Few people have the lack of sense to tell a federal judge to F'off, but she and her legal counsel did. They shouldn't be surprised that the judge didn't appreciate it.

Imposing personal liability on a public official is extremely rare. It's not enough to show they violated they law - you usually have to show something more. It shouldn't be that way though. The doctrine of immunity was meant to protect public officials from frivolous suits that were based on nothing more than policy disagreements, or errors in judgment. It shouldn't protect from them from knowingly violating the law. If everyone else is accountable, why shouldnt they be?

I wonder why the lawyer wasn't sanctioned - admittedly he told his client to ignore the judge. He's not the first lawyer to disagree with a judge's decision; for many of us its an almost daily occurrence. There is a remedy though - which is the appellate system. I assume they have appealed those decisions; if they worried about the impact on other cases they could have tried to get an order putting everything on hold. In other words, there are things they could do short of defying the judge.

What happens is the parole board appeals the decisions, and they are upheld. Are they going to ignore that also?

The problem with immunity is that can create an attitude of arrogance and absolute power. Some Officials equate immunity with wisdom - they lose sight of the fact that they aren't being protected because they always right. Take the wrong type of person, and its easy to imagine the abuses that can follow. It's not a new thought - we have long been told that "absolute power corrupts absolutely". Nowhere is that more apparent than in the criminal justice system.

Any time you talk about crime, people are willing to look the other way. After, we are talking about criminals right? They deserve what they get. That attitude exists until you or someone in your family is in trouble. Then you wonder why you are being treated so unfairly. Don't you know Ms. Owens expects a full hearing before the judge imposes sanctions on her. The same type of hearing she and the board are routinely denying inmates.

Earlier this week we saw an inmate - Richard Miles - released after serving 14 years for a murder he probably didn't commit. He was released because the police didn't disclose evidence that someone else claimed to have committed the offense. Prosecutors have a duty to disclose favorable evidence, and we have recently seen a number of case where they failed to do so. While that can be the subject of separate post, there are seldom consequences to failing to disclose evidence.  A court can find the evidence wasn't material (i.e. important) and uphold the conviction. In short, there are seldom consequences. Would the obligation to disclose evidence be taken more seriously if there were real consequences to not doing so?

Whether or not the award is upheld, it serves a purpose. There are limits, even on public officials. May if liability was imposed more often they would think twice before taken actions they know are either unlawful or at least questionable.

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Williamson Count District Attorney John Bradley may have come up with a solution for all these pesky little innocence claims. Charge them with aggravated perjury for falsely swearing they were guilty when they entered their plea.

Markum Peavey was sentenced to 55 years in 2007 for driving while intoxicated. It is not clear whether or not there was a plea agreement, but Peavey did plead guilty. He also pled guilty to evading arrest, and was sentenced to 25 years for that offense. Peavey then filed an application for writ of habeas corpus; in his writ, he claimed he was innocent. Writs of habeas corpus must be sworn to, so Peavey swore to the statement that he was innocent. Clearly, that was not consistent with his earlier plea of guilty. So not being content with 55 years, and apparently outraged that he would challenge his conviction, Williamson County indicted for aggravated perjury. Earlier this week Peavey was convicted and sentenced to 30 years; that sentence was stacked onto the prior sentence, so Peavey basically now has an 85 year sentence.

Even the most staunch defender of law order might sense some unfairness in this. Other than concerns about decency and fairness, there are also some practical problems with this approach. The first is that just because a defendant pleads guilty doesn't mean he agrees he is guilty.

Long ago the United States Supreme recognized that defendants might who don't believe they are guilty might not want to risk going to trial. Although this can be he subject of a separate post, its basically common sense. Would you rather be innocent and spend 10 years in prison or innocent and spend 50 years in prison. Prosecutors know this, and sometimes make offers to good to be true. So a defendant basically fibs, and admits guilt in return for a favorable outcome.

The Court of Criminal Appeals recognized this a few years ago in DNA cases. Some of the persons who have been exonerated actually plead guilty originally. The court recognized there could be a number of reasons for pleading guilty, and held that would not prevent you from claiming innocence and filing a motion for DNA testing. It's probably worth noting that those motions also have to be sworn to.

Maybe Mr. Bradly has hit on a way to save the state some money.  A defendant is exonerated through DNA evidence, and gets a pardon from the government. The State then comes in and indicts him for aggravated perjury if he plead guilty. If they get a conviction, then does that prevent him from getting his compensation - which was recently raised by the way? Maybe I shouldn't even say that - its just crazy enough that the governor might think its a really good idea.

As a side, if the name John Bradley sounds familiar, it should. That is the new chairman of the Texas Forensic Commission - the chairman who canceled the meeting where Dr. Craig Beyler was going to discuss his report on Cameron Todd Willingham. I'll let you draw your own conclusions.

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The Wednesday afternoon massacre is now history, and the question is what's next for the Texas Forensic Commission. I'm referring to Gov. Perry's decision on Wednesday to replace 3 members of the commission -which included the chairman - two days before they were scheduled to meet and discuss the findings of Dr. Craig Beyler. If you've been on a deserted island for awhile, Dr. Beyler was hired by the commission to review the cases of Cameron Willingham and Ernest Willis. He reached the same conclusion all the other experts had, which was that fire was not inentionally set. Of course if there was no arson, there was no crime. The problem of course is that Cameron Todd Willingham has already been executed. To make things worse, he was executed even though Gov. Perry was furnished with a report from another expert which suggested the fire was not intentionally set.

I've said before that I never had much faith that the forensic commission was going to accomplish anything useful. After all, its a political body, which Gov. Perry so emphatically emphasized by his recent actions. The question now is how the commission is going to deal with the case.

No matter what his public remarks may be (i.e. the "air quotes" around experts), I don't think Gov. Perry is stupid enough to believe that the facts are going to miraculously change. The case has already been reviewed by all the leading experts, and they all reached the same conclusion. For anyone to contradict that now would be suspect to say the least. So I think you have to conclude that at a minimum the testimony that sent to Todd Willingham to his death was completely false.

Grits recently wrote about the question I have always had about this whole process; what can they really do. They aren't going to admit they killed an innocent person, and that is probably beyond the scope of their charge anyway. They could come up with guidelines for using expert testimony, and there certainly is room for improvement there. They could also make a statement about arson science, which I doubt that they will do because of the impact it could have on other cases. Grits suggests they will just take the case off the agenda, and I think he probably has a point.

Realistically, I don't think anyone expects the Governor's hand picked chairman to do anything that puts him in a bad light - especially in the middle of a contested election. There is no way to do anything on this case without doing that.  By keeping the case on the agenda it also keeps it before the general  public. And the more Gov. Perry tries to defend what he did the more he looks like an idiot. The best thing that could happen for him would be for the case to go away. While that might never happen, the next best thing for them would be to stop doing things to draw attention to it.

So my prediction is that the new chairman will take his time, and after the passage of sufficient amount ot time - to convince everyone they fully reviewed the matter - they will vote to remove the case from the commission's agenda. No doubt it will be accompanied by some statement that there are other more important matters for the commission to address that will have more of an impact on future cases. As for the latter statement, there is a lot of truth in it. The way courts handle forensic evidence does need to be overhauled.

I guess time will tell - I'm  not holding my breath for anything to happen soon though.

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My office got a call yesterday afternoon telling me the forensic commission meeting scheduled for Friday had been cancelled. Like most I was surprised. The meeting had been scheduled for months, an agenda had been set, and people had made travel arrangements. Later I found out why it was cancelled - Governor Perry decided to replace 3 of the members, including the chairman. The new chair was none other than the prosecution's "go to" guy - John Bradley.

I'm not sure whether Governor Perry thinks everyone is stupid, or he just doesn't care. You would think someone would have pointed out the ramifications of what he was doing. Last week he expressed his belief in Cameron Todd Willingham's guilt, and became the first person to question the expert's conclusions. Now, when Dr. Beyler is scheduled to come discuss the case with them he replaces the chairman, and has them cancel the meeting. Does he truly think anyone does not see this for what it is - an attempt to manipulate the outcome.

Surely he doesn't think this is going to fly under the radar. I can't remember a story that has generated as much coverage as Todd Willingham's. Every day there are several new stories or editorials across the country (and the world) talking about this. Everyone is following it - and now everyone knows what happened, because the cancellation of the meeting is sure to gain just as much press.

I said when they first started looking at this case that I didn't think anything was going to happen. It was a political commission, and I expected politics to influence the ultimate decision. I was as surprised as anyone when Dr. Beyler's report came out. The only person who may have been more surprised was Governor Perry. It obviously didn't turn out the way he wanted, and now he wants to change things. If you don't believe they have already discussed this case you have to believe that Governor Perry believes his new appointee is going to be an advocate of Todd Willingham's guilt.

One thing he did accomplish is to effectively negate the impact of the forensic commission. I don't see how anyone will take seriously anything they do from here on.

When I read the reports last night it reminded of the 6 year old who gets mad and takes his ball so they have to stop the game; if you aren't going to play the way I want we aren't going to play at all. I'm far from politically savvy, but you have to wonder if this may not turn out to be the signature on the Governor's death warrant for his campaign. After all, who wants a Governor who thows tantrums like a 6-year-old?

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