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

The Law of Criminal defense reports on an Iowa lawyer public defender who asked for sanctions against a prosecutor for making her prepare for trial, even though he knew he was going to dismiss the case. Predictably, the judge held he had no authority to issue sanctions. Although the result was predictable, the story highlights one of overlooked aspects of indigent defense.

No politician wants to spend money on indigent defense. Almost everyone has heard the question "Why do we have to spend so much money paying for lawyers for criminals?" What know one ever mentions is the effect prosecutors have on those costs, especially in places where there is no public defenders office. Discovery is an area where lawyers spend a lot of time, much of it needlessly; there are many lawyers who have to waste time (and money) sitting in the DA's office, taking notes from the offense reports. In many places, you also have to waste time looking for a prosecutor, so you can review the reports. Prosecutors also waste resources when they wait until the last minute to evaluate a case, and make a final decision. Of course, they have no incentive to try and save money on defense costs, and I doubt its something they even think about.

There's no telling how much money we could save by making things easier for defense lawyers; not only money on indigent defense, but also money spent housing defendants who don't need to be in jail, or don't need to stay in county jails. Maybe filing a Motion for Sanctions is a way to bring the issue to the front...

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I just got back from a program on Actual Innocence at the Center For American and International Law in Plano. This was one of many seminars that have been conducted the last several years. (the impact of those seminars needs to be the subject of another post)

The focus was on DNA evidence, false confessions, and eyewitness issues. Education on eyewitness testimony is sorely needed, since mistaken identifications have been involved in a substantial majority of wrongful convictions (around 75%) Unfortunately, most jurors, and many lawyers, have mistaken beliefs about the reliability of eyewitness testimony.

There were two points I thought were significant. One concerns juror's beliefs about such testimony. Research has established that most people believe a person is more attentive when they have a gun pointed at them, or are otherwise under stress. They also believe witness' who are certain of their identification are more accurate. They also believe most people are able to accurately estimate time. Research has also established that the truth about those factors is exactly the opposite; you are less accurate when under stress, witness' who are certain of their identification are no more accurate than those who have doubts, and people are terrible at estimating time.

A more disturbing issue was a discussion of the inability of cross-examination to reveal mistaken identifications. Cross-examination is generally effective at uncovering witnesses who are lying, or trying to shade the truth. Eyewitnesses seldom intentionally lie; instead, they sincerely believe they are testifying truthfully. While you can point out the problems with eyewitness identifications, as discussed above, jurors beliefs about many of those problems are exactly the opposite, and as a result, they are unwilling to accept expert testimony. That leaves you with no effective way to uncover a mistaken identification.

Every lawyer knows how powerful eyewitness testimony is. If you don't have something really compelling to rebut it, it is impossible to overcome. There have been many great lawyers who have been unable to convince jurors that an eyewitness was mistaken.

So how do you handle the problem? One solution is to change people's beliefs about eyewitness identification. That requires aggressive education, and time; even with that, it is doubtful that will ever be successful. An easier fix is for Courts to become more aware of these issues, and scrutinize identifications more carefully. Prosecutors also need to be more skeptical, and not blindly accept all eyewitness identifications, even where they appear sincere. Instructions might also help, and are being given in some jurisdictions.

Defense lawyers have a difficult job in handling an eyewitness case. We can no  longer rely on cross-examination. We must use the research and experts that are available, and do the best we can to show jurors the view the witness had. Maybe if enough lawyers consistently take this approach, public awareness will start to slowly increase.

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A jury in Waco, Texas recently sentenced a defendant to 20 years for intoxication manslaughter, the maximum sentence. There were also two people injured in the accident, and the jury sentenced him to 5 years for each of those (intoxication assault). The judge stacked the sentences, and he ended up with 30 years.

There was nothing improper about what the judge did, but the question is whether its right. There are several offenses where sentences can be stacked - sexual assaults are the most common. Those offenses can also be combined in a single indictment, which means one indictment can contain several separate offenses.

There are several problems I see with stacked sentences. One problem is with offenses like intoxication manslaughter, where there is no intent to kill anyone, or hurt anyone. Whether one person is in another car, or ten people, is nothing more than luck (bad luck for the other driver). Is it really worse because there are three people, instead of one? Looking at it from the standpoint of the defendant's conduct, you would have to say no.

Another problem is sexual assault cases. Many times, one incident may consist of several possible offenses. For example, in an indecency case, touching the breast and genitals are separate offense. So is contact with the mouth. It's not uncommon for one incident - that may last no more than a few  minutes, to end up in three or more offenses. The result is that instead of facing a potential sentence of 20 years, the defendant is looking at a 60 year sentence. The threat of that happening results in a lot of pleas.

If the legislature wants to increase sentences, they have the right to do so. They shouldn't allow the State to do it through the back door though, which is what happens with stacked sentences.

The most serious problem I see is that the decision to stack sentences is left to judges. If you are going to allow juries to sentence people, then let them do it. As it is, they have no say in how the sentence they assess is carried out. Even worse, they are not even told the judge can, or cannot stack sentences. Its not uncommon for jurors to ask whether the sentences can be stacked, only to be told they are not to concern themselves with that. Why can't they know that, when they are the ones deciding what the sentence should be?

I'm sure it will never happen, because the legislature is not going to support anything that appears to be soft on crime. But some consistency needs to be brought back to sentencing, especially in sexual assault cases. Jurors also shouldn't be kept in the dark - they should know that a judge may be allowed to ignore what they worked so hard to resolve.

Instead of this, my guess is the only thing that will  change is  more offenses will be added to the list of those that can be stacked.

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In 2005 the Texas legislature created a Forensic Commission. Their job was to investigate complaints of forensic misconduct. Frankly, I didn't expect them to do anything, and I still don't have high hopes. However,  they at least got off to a good start - even if did take almost 3 years.

The commission voted on Friday to review two arson cases - Cameron Willingham and Ernest Willis. One was executed, and the other released, on almost identical evidence. The Innocence Project has already commissioned a report that was prepared by the leading experts in the country, so I don't know how much work is going to be required. Maybe that's why they took these two cases.

I'm not sure what they can accomplish, but hopefully this will raise awareness of the issue of flawed arson investigations. There are other cases out there, and people still serving  time for something that was not a crime.

I represented Cameron Willingham in the final stages of his appeals, and presented the evidence to the courts and the governor.  The response from the governor's office was that he "didn't see anything that would convince him he should postpone the execution". I'll never forget that statement - but I guess its too much to expect something like innocence to get in the way of an execution.  It's too late for Mr. Willingham, but maybe the commission can do something to prevent the same thing from happening to someone else.

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One of the statements defense lawyers hear often is "how can they convict me if they don't have any evidence" Usually its followed by all they have is someone who says I committed the crime.

I have never yet understood where this idea comes from. Some defendants continue to believe that unless there is a video of the crime, there is no evidence; I even had a client one time who did not believe a video of a drug transaction was evidence, because you couldn't clearly see who was on the tape.

The answer to the question of course is that witness testimony is evidence. Whether it be the victim of a robbery, or a sexual assault, their testimony and identification is evidence. In fact, it is what is referred to as direct evidence. You can argue about  whether the identification is accurate, or whether the allegation is false, but you can't argue its not evidence.

It is even harder to explain circumstantial evidence. At least for the last 10 years, there is no difference in Texas between direct and circumstantial evidence. The issue for the jury is whether they believe the defendant is guilty beyond a reasonable doubt. For example, you might have a burglary where property taken from a residence is pawned a few hours after the burglary. One logical conclusion is that only the burglar would have the property that quickly. Of course, there could be other explanations, and it would be up to the jury to decide whether they thought that was sufficient.

In these days of CSI, there is also a belief that you can't get a conviction without physical evidence. Especially in sexual assault cases, many defendants refuse to believe they can be convicted without  physical evidence. The lack of physical evidence can be significant, but not always. If the victim promptly reports the assault, and immediately goes to the hospital, you would expect there to be some evidence. If the assault isn't reported for several days, you wouldn't expect to find any physical evidence. Defendants aren't alone on this. Prosecutors have been complaining for several years  about the "CSI effect" - jurors who refuse to convict without physical evidence.

The bottom line is you have to use at least a little common sense. There's always evidence - the question is whether its enough to convince a jury beyond a reasonable doubt.

 

 

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Everyone at some point says something you wish you could take back. You might say something without thinking, or it just comes out wrong. Prosecutors seem to do it often, perhaps because they get so carried away with preserving our way of life ;).

Williamson County District Attorney John Bradley definitely has to be in the running, for comments he made regarding a federal lawsuit recently filed by the Innocence Project.  They are trying to force Williamson County to let them test evidence from two murder cases, which they think are related. In one, someone was convicted, and is serving a life sentence. In the other, no one was arrested and the family wants the evidence tested (so much for representing the victims!).  In responding to the lawsuit, Mr. Bradley stated:

"Meanwhile, the public might want to remain skeptical of a defendant who to this day doesn't accept responsibility"

I guess what that means if is if you want to test evidence to prove you are innocent, you have to admit you committed the crime. Of course, if you admit you committed the offense, then you have no reason to test the evidence.

Let's hope he didn't think that one through. But then again, what reason is there to refuse testing in the first place, especially for a victim's family.

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I have posted before about the jail situation in McLennan County, and the discussion about whether to turn it over to a private entity. Yesterday the commissioner's resolved the issue for at least now, deciding to keep the jail under the Sheriff's department. I continue to believe that the operation of jails is something that should not be reduced to a dollars and cent decision, and they made the right decision.

I'm not sure the issue is over. At least the County judge is focusing on costs, which is his job. You cannot look at costs alone however, as there are many intangibles that must be considered when you assuming control over the lives of so many people.

Of course, I still wish they would focus on the reasons for overcrowding first. Until you address that, no matter whether its the county or a private concern, experience  has shown you cannot build enough jail space.

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