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

Grits recently posted on the problem facing McLennan County caused  by jail overcrowding. McLennan County commissioners recently started discussing whether they need to build a new jail, or contract with a private company to build a new jail. Grits pointed out something I was not aware, although it doesn't surprise me; we have the second highest incarceration rate among counties with more than 200,000. Over half the people in jail are awaiting trial, and more than 20% of those only have misdemeanor charges.

He proposes a couple of things, which I doubt commissioners will seriously consider. One is to increase the use of tickets  for certain non-violent offenders. Another was to consider alternatives. like the day reporting program in Tyler. Those obviously make sense, but McLennan County doesn't exactly have a reputation for innovation.

The Courts in McLennan operate efficiently, and make effort to dispose of cases quickly. The number of days a defendant has been in jail is something the judges always know. The problem is that they don't have control over what is being filed. The District Attorney's office in any county has to take primary responsibility for reducing the jail population. They are the ones who file the cases, and decide what charges to file. They are also the ones who basically decide what cases are going to trial; if they don't make reasonable offers, you can't expect defendants to accept them. They also have influence on bail decisions, which forces many defendants to stay in jail while waiting for trial. If you want to reduce the jail population anywhere, the quickest way to do so is to have the District Attorney become involved. In most cases though they are more concerned with putting people in jail, then getting them out.

I remember when the new jail was built. At the time, it was projected to meet the needs of the County far into the future. I had been around long enough to know that was nothing more than a dream. If you the space, it is going to get filled, usually sooner rather than later. The same will be true of any new jail that is built Unless everyone starts concentrating more on keeping people out of jail, we will never be able to keep up with the demand for jail space. Continue Reading...

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Mark Bennett recently posted on the long awaited exoneration of James Blair. That story has been covered elsewhere. In case you don't know, Blair was convicted and sentenced to death for murdering Ashley Estelle. Many people at least know Ashley's name because of Ashley's law, which was enacted as a result of her death. A critical piece of evidence against Blair were hairs, which the State claimed matched Blair. Scientific tests were subsequently able to exclude Blair. More recently, genetic material under her fingernails also excluded Blair. After an exhaustive re-investigation, Collin County District Attorney John Roach finally concluded that there was not enough evidence to prosecute Blair again.
The investigation included 5,000 man hours, and almost $50,000. Mr. Bennett's comment was that more money was probably spent on the investigation than was spent on Mr. Blair's original defense.  He's not the first to point out the lack of resources devoted to defending capital defendants. You only have to  look at high profile celebrity prosecutions to discover what a difference money makes. Resources (which includes money and time) make a difference in most cases. Unless you  have an extremely wealthy client, defendants are always at a disadvantage.

I don't have the answer, but I can identify the problem. You only have to look at the recent exonerations to see what a difference money and time can make;although certainly not all, many of those wrongfully convicted may have been cleared if they had access to all the resources the government used to prosecute them.  Unless we devote the resources to defending those whose liberty the government is trying to take away, there is always going to be injustice.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

If you ever wondered why many people have such a poor opinion of the justice system, it's because of cases like Carl Wayne Buntion. The Fifth Circuit recently reversed a order from the Federal District Court which  had granted relief from his death sentence. The District judge concluded the trial court judge was biased, and therefore Buntion did not receive a fair trial. The Judge was William Harmon from Houston, who among other things, put up a post card of "hanging judge" Roy Bean during the trial. He also made the statement that he was "doing God's work" to see that Buntion was executed. If that wasn't enough, he changed several rulings after calling the District Attorney's office during trial, and getting advice them. He also tried to remove one of the lawyers, and then realized he couldn't do that. When the lawyers tried to have him removed, he threatened to accuse them of possessing drugs if they didn't stop challenging his behavior.  The  truly amazing thing is that most of the allegations were not disputed.

It's not too difficult why the federal district judge concluded the judge was biased. He obviously saw what happened, and knew something needed to be done.

Obtaining relief in a federal habeas proceeding is an extremely difficult thing to do. Much of the difficulty is the result of the standard of review. The courts are reviewing State court decisions, and will not second guess them unless they really stepped out of line. That means a federal court can believe a state court made the wrong decision, and still not grant relief. In a convoluted legal decision, the Fifth Circuit held the District Court should not have granted relief. That means Buntion is likely to be executed, after a trial presided over by a judge who at the very least did not comport himself to the standards we expect from judges.

It is difficult to imagine how anyone could think Buntion received a fair trial. The court noted the judge's action should not be commended (duh!), but apparently they were not so far out of line to establish bias. You have to wonder what else would it take. I'm sure most people expect more from their judges. Thankfully, this is a rare situation. However, that does not excuse a refusal to act. I'm sure Mr. Buntion and his family are not comforted by the assurance that this is a rare occurrence

If we expect the public to have any confidence in our system of justice we have to be willing to take action when the system breaks down. Unfortunately, that didn't happen  here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Today the Supreme Court decided United States v. Rodriquez, which involved a sentence imposed under the Armed Career Criminal Act. Basically, that Act establishes a 15 year minimum sentence if the defendant has 3 prior qualifying convictions. The issue in the case was whether the defendant had a qualifying conviction for a "serious drug offense" . To qualify, the conviction has to be for an offense that has a maximum term of imprisonment of ten years or more. In the state of Washington, the offense the defendant was convicted of had maximum term of 5 years, unless the defendant had a prior conviction, where the maximum sentence was 10 years. The defendant had a prior conviction, but was only sentenced to 48 months. Thus, the issue was whether the recidivist provision should be considered in determining the maximum sentence.

The court held that you should use the maximum sentence that could be imposed, which was 10 years. The court also pointed out a distinction, which will apply in Texas. Where notice of an enhanced sentence must be given, as in Texas, the enhanced sentence is not applicable unless the notice has been given. For example, a 3rd degree felony can be enhanced to 2nd degree with a prior felony conviction. If no notice is given, then the maximum sentence for purposes of the ACCA would be that for a 3rd degree felony, which is 10 years. Of course, that is still 10 years or more, so it could still qualify if it meets the other criteria.

The bottom line is that  this ruling is going to have little, if any, effect on using Texas convictions.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last night as I was driving to Austin I had the good fortune to listen to an interview on the The Catholic Channel with Rev. Carrol Pickett. Rev. Pickett was the minister at the Walls unit in Huntsville for 16 years, and during his time he was present at 95 executions. He would be the inmate from 6:00 a.m., until they were executed shortly after midnight. (now they do it at 6:00 so everyone doesn't have to stay up all night). After each execution, he recorded his thoughts on a recorder as a form of therapy. We all now  have the privilege of  listening to some of those recordings.

During the interview he made a statement that almost caused me to  have a wreck. Without any hesitation, he stated that he knows 15 of those 95 inmates that were executed were actually innocent!! That means that in our so called quest for justice, we have killed 15 people for no reason. As has been pointed out before, that also means 15 people have gotten away with murder - at least a few of those have probably gone on to commit other murders. I've discussed before the attempts to estimate the number of innocent people in prison. According to these numbers, its around 15%.

Rev. Pickett is the subject of an independent film, At the Death House Door, that debuts on May 29. If its anything close to  his interview, it should be fascinating.

When he started talking, I wasn't sure where he stood on the death penalty. He eventually made his position abundantly clear - he is absolutely opposed to it. He quoted on the inmates he counseled, who summed it up perfectly: "what sense does it make for the State to kill someone, to convince everyone else that its wrong to kill people?"

While his discussion of executing innocent people got my attention, that was not what struck me most about the interview. When he finished, my one thought was how fortunate those 95 men were to be able to spend their last hours on earth with him. He is truly a remarkable Christian man - someone that is able to Jesus in others, even those condemned to death.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

a recent editorial in the Dallas morning news championed the idea of creating an innocence commission in Texas.  The editorial was in response to a meeting last week in the legislature, which drew representatives from all branches of the judicial process, namely prosecutors, defense lawyers, police, and judges.  Senator Rodney Ellis is again introducing legislation to create such a commission.  One can only hope that it has enough support this time to actually have a chance of success.

Unfortunately, similar legislation in the past has been the victim of politics.  I participated in one of the committee meetings several years ago, and presented evidence along with Barry Scheck of the Innocence Project.  At that time, the idea of creating an innocence commission was strongly a opposed by the prosecutors, and died a quick death.

I believe the only way to effectively deal with wrongful convictions is the creation of such a commission, that includes an independent panel to review convictions.  The judicial process is not equipped to deal with these claims.  Granted, relief has been granted in a handful of cases.  However, most of those involved DNA evidence, and there was no argument that the person was actually.  The problem is with all the other cases, where there is no such convincing evidence.  Where there is any question, judges are hesitant to grant relief.  Unfortunately, that is one of the consequences effects of electing judges, who have to worry about the political ramifications of their decisions.

Prosecutors also fall short most of the time.  Law school teaches us all to be advocates for our cause.  We also are taught that we have an adversarial system.  Unfortunately, that system does not function well in this area.  Prosecutors too often oppose innocence claims merely because that is what they perceive they are supposed to do.  Most of the time it is probably not even a conscious decision.  No prosecutor wants to admit that they are responsible for prosecuting someone who is actually innocent, and often they refuse to seriously look at the newly available evidence.  Defense lawyers also bear some of the responsibility.  Too often frivolous claims are advanced, merely because someone is representing their client.  No one has an absolute right to present an innocence claim, and lawyers should not take on a case unless they are convinced first that the person is actually innocent.

I'm not naïve enough to believe that an innocence commission is not going to suffer some of the same defects.  However, it has to be a better way to process claims.  Let's hope this time that both parties can agree the time has come for an innocence commission in Texas.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

it's not too surprising that almost everyone is commenting on the Dallas district attorneys recommendation that prosecutors be held responsible for not disclosing favorable information.  While I certainly agree with Mr. Watkin's idea, I have somewhat different take on the issue.

Those of us who have practiced for a number of years, learned long ago that prosecutors never think anything is exculpatory.  I have even seen prosecutors argue that an identification of someone else is not exculpatory, because the police excluded that person as a suspect.  The obvious problem with putting the burden on the prosecution is that they always believe the defendant is guilty.  If you think someone is guilty, how can you ever believe something is exculpatory?  The standard practice has been to ask the court to review the file, and make an independent determination.  Sometimes that works, but again I have seen information that I believed was exculpatory, but not disclosed.

Civil lawyers are always appalled to learn about the discovery available in a criminal cases.  You can sue someone for a few hundred dollars  and be able to learn everything about them.  However, you can be fighting for your life, and not be told anything about the charges against you.  How can anyone think that is fair?  We can solve a lot of the problems simply by requiring the state to furnish defense lawyers with every thing they have.  There may be privacy issues,  but those can be dealt with.  If you are trying to take away someone's freedom, there is no reason why they should not know everything you know.  Of course, the prosecutors still may not know some things if the investigators don't pass that on.  But it certainly would be better than it is now.

We've been talking about everything else to prevent convicting the innocent.  There is no telling how many convictions could have been avoided, if only the defense had access to everything the prosecution knew.  This is a simple fix, and there is really no good reason why it shouldn't be implemented.  That's probably exactly why we will never see it happen.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link