Remember - you are the lifeline

 I just got back from the annual innocence conference that is sponsored by the Texas Criminal Defense Lawyer's Association. I've had the privilege at the seminar for several years - this year on Innocence writs - and this year it was extended to 1 1/2 days.

One of the highlights of the seminar is a dinner. Several exonerees are usually invited to speak. This year it was Richard Miles and Billy Smith. Even if you've you've heard them before, their stories are both heartbreaking and inspiring. It always amazes me how gracious these individuals are.

The message that came across this year came primarily from Richard Miles. He reminded lawyers they are the client's lifeline. The lawyer is more than a lawyer - he or she is the client's hope for freedom, and sometimes their only link to the outside world.

Thankfully there are a lot of good lawyers who recognize this, and give their all for every client. They know that sometimes a client just needs to know you are working for him. Unfortunately though there a a few lawyers who look at clients as nothing more than a cash cow. They do the least amount possible - which increases the number of cases they can handle. Fortunately there aren't a lot of those lawyers.

I believe every lawyer needs to attend at least one of those programs. More importantly, I think it should be mandated for prosecutors. They need to know what kind of impact they have on individuals and their families.

I don't believe there is any higher calling than working to free those who exonerated. You aren't going to get rich - in fact if you're not careful you can easily go break. But the rewards are immeasurable. Standing outside a prison and watching someone who had been locked for years is a feeling that cannot be described. It's the lawyer's equivalent of winning the super bowl.

There's always for more lawyers to join the fight. Think about it.

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The pitiful state of forensics in Texas

 I recently tried a murder case. Forensics were not a huge issue, but they were important. While I shouldn't be surprised, I was reminded about just how qualified (or unqualified) most of the people are who testify for the state.

The worst was the supervisor of the crime scene, who also claimed to be an expert in bloodstain pattern interpretation. His qualifications were similar to most such experts - he had attended a 40 hour bloodstain school. Most of those are conducted by, or in conjunction with law enforcement agencies. Since  his training years ago he had never attended a training program directly solely at bloodstain interpretation. He had brought in others to train his people - and participated in the training. 

What absolutely floored me was when he was asked what SWIGSTAIN was. For those who don't know, there are scientific working groups in a number of disciplines, made up from experts from across the country - and the world. Their goal is to develop standards that will be applied everywhere - including terminology. The idea is that when an expert mentions a term, it will have a certain meaning that all experts will understand. In other words, they will talk the same language. SWIGSTAIN came up with their guidelines in 2005 - 2006; He had never heard of it! So  much for training and continuing education.

The other expert was a DNA analyst. She had the standard university degree, and worked at   a county Crime Lab. When asked what professional organizations she was a member of she replied none. Seriously - how can you be a scientist and not be a member of any professional organization. Most experts are members of numerous organizations - the most common being the American Academy of Forensic Sciences. How can anyone stay current and know what is going on with your field without keeping in touch with other?

With the training possessed by many of the people at State crime labs its no wonder mistakes are made. We should expect more - they are providing testimony that can take away someone's freedom - and even their life. Instead of being the least qualified, they should be the most qualified experts in their fields.

The sad fact is that the most qualified experts are often consultants, who defendants may  hire to assist in the defense. When they do, their testimony is discounted and discredited because they are being paid to come testify - as if the State experts are doing it for free. If they question what was being done they are attacked and discredited. I understand that's the function of a trial, but jurors too often are willing to blindly accept the testimony offered by the State.

We've made a lot of progress over the last few years - especially in educating lawyers about forensics. It's obvious we still have a lot more to do.

Should the media be responsible for the consequences of the Zimmerman verdict?

 It looks like everyone who has a blog has to comment on the George Zimmerman trial. Most of them haven't followed the trial, but that doesn't them from having an opinion. Some of the opinions border on - if not cross the line - into idiotic. Depending on which side you come down on, you either think it was a victory for justice - or a travesty of justice. Sadly, those opinions appear to be more defined by race than anything else.

I didn't follow the case, and frankly didn't care that much about it. It wasn't all that interesting from a legal perspective, and was similar to hundreds of other cases tried across the country every year. What was interesting is why the media took such an interest in an otherwise routine case.

It appears the media - perhaps with help - did their best to make this into 

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How it's supposed to work - the judge as gatekeeper

One of the biggest differences between criminal trials and civil trials is in  how expert testimony is handled. Theoretically, it should be the same since the rules of evidence are basically the same. In practice, however, there has been a vast difference. Whereas expert testimony is routinely challenged in civil cases - and often excluded - that rarely happens in criminal cases. Thankfully, criminal defense lawyers are getting better about challenging scientific evidence. Most judges however still have a simple review process - if the state wants it it's admitted, if it's from the defense you better have an awfully compelling argument.

This is one of the biggest criticisms in the National Academy of Sciences Report. The legal system is set up for judges to act as "gatekeepers". In criminal cases they have done a poor job of that. That is why is the ruling in in the Zimmerman case is significant. The judge there has excluded "audio identification evidence". Both the defense and the State had experts with contrary opinions. That's not unusual, and most judges simply leave it to the jury to decide. Unfortunately, they're no better at sorting out conflicting claims of experts than judges.

Maybe it's because it's such a high profile trial. Or maybe it's because the idea that you could identify someone's scream is so bizarre. Or maybe it's someone else. Whatever the reason, its nice to see a judge truly acting as a gatekeeper in a criminal case.

New Hope for Bad Science

After having success snatched from the jaws of the victory the last two legislative sessions the third time was the charm. Convicted defendants will soon have a post-conviction remedy for claims that are based on the use of bad science, or where new science is available.

Senate Bill 344 adds Section 11.073 to the Code of Criminal Procedure. The new statute applies to relevant scientific evidence that:

(1) was not available to be offered by a convicted person at the convicted person's trial; or

(2) discredits scientific evidence relied on by the State at trial.

This has the potential to represent a huge change in the law. The Court of Criminal Appeals has taken different approaches to cases involving discredited scientific evidence. Recently, the Court has recognized a due process claim for cases where the conviction is based on false evidence - whether the State knew it or not. This bill goes at least that far - if not farther.

The burden is still on the defendant to that it is "it is reasonably probable" that he would not have been convicted. Sometimes that will be easy - such as arson cases - and sometimes it might be more difficult.

There should be no doubt that science has been used to convict people in thousands of cases. Science is not absolute, and continues to evolve as more knowledge is obtained. It is absurd to convict one using science, and then not grant relief when it is later proven the science was wrong. This bill goes a long way to addressing that problem.

Kudos to the Texas legislature....

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Does the public still trust prosecutors?

 When I started practicing law over 30 years ago, most people had an unwavering belief in police officers and all those whose job it was to convict people. One of the standard questions we used to ask potential jurors was how they felt about police officers. More than a few would admit they would believe a police officer over any other type of witness. Most felt the same way about prosecutors - believing what they said over the defense lawyers.

The bias was more pronounced with judges. If you were a prosecutor you got the benefit of the doubt. Defense lawyers had to convince a judge the case would get reversed if they made a particular ruling. If the prosecutor said they did something - such as disclose evidence - a defense lawyer could never convince the judge otherwise.

Most jurors also believed that if someone was indicted they were guilty. After all, the police wouldn't arrest an innocent person - we trust them remember? Very few people believed that innocent  people get convicted. They trusted the system to get it right every time. Remember George Bush's insistence that an innocent person has never been executed?

I've seen that change over the last few years. We can thank DNA for that - and the constant parade of individuals getting out of jail after spending years for something they didn't do. It started off as a trickle, but quickly turned into a flood. Jurors have taken notice - and everyone now believes that innocent people get convicted.

Even though jurors believe innocent people get convicted, they still trusted prosecutors. They chalked up wrongful convictions to innocent mistakes. That may now be changing.

The poster child for unethical prosecutors used to be John Bradley. Now it may be Ken Anderson - who was responsible for the wrongful conviction of Michael Morton. Anderson - who went on to become a judge - now finds himself on the other side, having been arrested for his role in Morton's conviction.

Morton's case came out of Williamson County. Apparently it caught the attention of voters - they voted out Bradley in the last election. Normally voters know nothing about District Attorneys - if they know anything it isn't about how they do their job. That may have changed with Bradley.

The fallout over Michael Morton extends beyond the defeat of Bradley. Jury selection is currently taking place in a capital murder case that was transferred from McLennan County. So far a large number of jurors have been excused because of their opinions about the Morton case. Those jurors no longer trust prosecutors, or the system.

Is this an isolated incident - or something more pervasive? There probably is a disparate impact in Williamson County, but I don't think it stops there. Over the last couple of jurors I've seen jurors' attitudes change. Some are much more skeptical - and more willing to buy arguments like mistaken identification.

We still have  a long way to go - but at least we are headed in the right direction.

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Telling prosecutors what to do - they don't like it

I recently had a conversation with an assistant district attorney; he was complaining about the new discovery statute they were going to have to start complying with. In case you don't know, Texas recently passed legislation requiring the state to provide discovery in criminal cases. The statute is referred to as the Michael Morton act – and is one of the few laws named after a person that is actually beneficial.

The complaint was about the burden that was going to be placed on the state to document what they turned over. I listened without much sympathy. I just had to point out that any burden being placed on them was of their own making. Four years they have fought discovery reform, and insisted on controlling what defendants can see. The last few years have shown what can happen when the decisions are left to the prosecutor – evidence favorable to a defendant is often withheld and innocent people - like Michael Morton - get convicted.  One of the consistent recommendations over the years for reducing wrongful convictions is providing full discovery.

It's not such a difficult concept to grasp. In civil cases both parties are allowed access to almost everything. Yet when your life is on the line, the information you get is limited. No one can even begin to argue that is fair. A number of prosecutors recognize that, and have an open file policy – some even routinely copy offense reports and discovery to make available to defense counsel. They can blame the few that refuse to do so for the Michael Morton act. Had they gotten on board years ago, there would be no reason for a law like this.

It's still early to see what impact this is going to have on the criminal justice system. The fact is the district attorney and the state still control the dissemination of evidence. They will continue to choose what to provide, and what to hide. Full discovery however cannot be anything but a good thing for everyone involved.

Your case is reversed - now what?

 

A case i have been working on for a number years demonstrates that what happens when your conviction is set aside is not necessarily what you would expect. Although it's clear to me - I guess those years in law school did really morph my brain into thinking like a lawyer - I realize how difficult it is to understand for the lay person who hasn't been corrupted by law school. The biggest reason is that the legal system is often counter-intuitive. Nowhere is that more apparent than in pot-conviction  cases.
 
Most people believe that if your conviction is reversed you get out; it makes sense - how could they still hold you. This is where legal "fictions" come into plea. In a writ of habeas corpus the positive action the court can take (other than finding actual innocence) is to set aside the conviction. That doesn't mean you are not guilty. Instead, it means you back to the position you were in before you were convicted. Basically it's a "do over". You are still under indictment, and your case is returned to the Court where the indictment is issued. That means the case goes back on the trial docket, and trial dates and court dates are set just like in any other case.
 
In this particular, the indictment was returned in 1987 - so it will clearly be the oldest case on the docket. The judge is retired. the DA gone, and the lawyers retired, so we will be starting over with all new players.

It's been a long road to travel so far - it looks like we may still have a ways to go.

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Gaining a client's perspective - the hard way

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 highest bond for a misdemeanor ever?

 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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