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

In the last session of the legislature they revised the self defense statute, to allow a person to use deadly force in defense of his home. The law was named the "castle doctrine" - i.e., your home is your castle.

A jury in El Paso apparently relied on this defense, and found a defendant not guilty in the death of a 13 year old boy. I'm sure the legislature had in situations where someone breaks into your home, and you believe you are about to be attacked. The facts in this case were far from that. The following is an excerpt from the AP story:

Gonzalez had endured several break-ins at his trailer when the four boys, ranging in age from 11 to 15, broke in. Gonzalez, who was in a nearby building at the time, went into the trailer and confronted the boys with a 16-gauge shotgun. Then he forced the boys, who were unarmed, to their knees, attorneys on both sides say.

The boys say they were begging for forgiveness when Gonzalez hit them with the barrel of the shotgun and kicked them repeatedly. Then, the medical examiner testified, Anguiano was shot in the back at close range. Two mashed Twinkies and some cookies were stuffed in the pockets of his shorts.

Another boy, Jesus Soto Jr., now 16, testified that Gonzalez ordered them at gunpoint to take Anguiano's body outside.

Gonzalez said he thought Anguiano was lunging at him when he fired the shotgun.

Death for stealing twinkies seems a little extreme, even for the most extreme supporters of "law and order". Reading between the lines, what looks like happened was that the defendant got mad, and lost his cool. While I wasn't there, I find it difficult to believe he thought his life was in danger from a group of teenagers on their knees, with a pocketful of twinkies.

The defense lawyer did an excellent job for his client. In the end, the jury determines whether someone acted in self defense. As a citizen though, it doesn't look like a case for self defense. No matter how you look at it, death for a 13 year old breaking into a house doesn't seem justified.

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Grits had an interesting post on a seldom mentioned factor in causes of wrongful convictions. Innocent until Reported Guilty cited two articles that suggest improved reporting can be a protection against wrongful convictions. Steve Wienberg suggested that reporting on wrongful convictions is not a bleeding heart,liberal activity. Instead, it ensures that criminals will be punished for their crimes.As we have seen with many of the exonerations, when you convict an innocent person, the real criminal remains free, and in all likelihood will continue committing crimes. If you want to get tough on crime, make sure you prosecute the right person.

Rob Warden points out that most reporting is sensationalized, and is usually directed and orchestrated by the police and prosecutors. Until recently, claims of innocence were met with outright hostility; if you were lucky, they were only met with skepticism.

Weinberg also noted something I've always known; prosecutors tend to get a free pass. They are rarely questioned, and reporters believe whatever they tell them. In contrast, many reporters treat criminal defense lawyers exactly the opposite; they don't believe what they tell them. I think the problem is with the underlying assumption most reporters have, which is shared by the general public; they assume the person is guilty, or else they wouldn't have been charged.

As with anything, you cannot generalize, because there are many good reporters. Several of the exonerations are the result of work done by investigative reporters. Led by the pioneering program at Northwestern, more journalism schools are starting innocence programs; St. Thomas in Houston is one of those programs. Reporters are also responsible for getting out the information on exonerations, and keeping it before the public.

In the end, everyone bears responsibility when the criminal justice breaks down - even reporters.

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Dallas County is scheduled to release another person based on DNA evidence. The individual is the 19th person released since Dallas County started reviewing cases, and has been in jail for 26 years.

Unfortunately, this story is a familiar one. The victim identified the defendant, and that was all the evidence that was needed. The identification was questionable, since a lineup was mailed to the victim, and two of the pictures were of persons without a shirt, which was the description provided. Obviously, that was not enough to convince a jury.

It is also a familiar story of investigation. Not only did they conduct a questionable identification procedure, they also refused to look into what appeared to be solid alibi evidence. The defendant was ablet o produce a time card showing he was working at the time, and his employer testified for him.

it amazes me that even with all the exonerations, eyewitness testimony is still viewed as almost infallible. Jurors rarely question the identification made by a victim, especially when they point out the person. Even when they are told about the problems with such identifications, they still are not willing to reject it. There are no telling how many people are in prison because of bad identifications. The vast majority of those will have to stay there, because there is no physical evidence that will exonerate them.

We have to come up with a better way to handle these cases. Presenting expert testimony is a start; jury instructions may also help. The best way to deal with the problem though is to avoided it the first. Investigators need to stop blindly accepting eyewitness identifications, and look into evidence to the contrary. After all, that is what investigating is all about.

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How many people know today is constitution day? I'm a criminal defense lawyer, and I didn't know it - in fact, I didn't know we have one.

Chief Justice Roberts was interviewed, and not surprisingly said the "coolest thing" about the constitution is the Supreme Court. I'm sure a lot of people would disagree with him, since complaining about the Supreme Court seems to be a popular pastime for all ideologies. Some of the criticism is well deserved, but we should never lose sight of the important role the Supreme Court plays in our system. It is the ultimate arbiter of what the constitution means. They are not dependent on any political party, or popular opinion. In many cases, they are a check on public opinion. You need only look at segregation, and more recently the death penalty, to see how public opinion can go to an extreme.

We should be thankful we have a Supreme Court, and a constitution. At the same time, we should be ashamed at how uninformed the majority of the people are about the constitution. As lawyers, we should bear some of the responsibility; we can do better on educating the public, and our clients. Maybe constitution day is a good day to start.

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A Florida youth minister and father of four, Tallie Gainer,  ended up as the defendant in a felony bad check case. He was arrested in front of his family, exhausted his savings, and lost out on a business opportunity. On the surface, the story doesn't sound that remarkable. However, there is more to it, and the rest of the story points out several problems with the criminal justice system.

The ordeal started when Gainer left his wallet at a restaurant. Someone using his ID subsequently went into a bank, and tried to cash a check. The transaction didn't go through, but the attempt was the basis of the criminal charge. Gainer was subsequently arrested after he was identified through photographs, and the teller identified him. What followed was unfortunately not uncommon for a criminal case. Gainer's lawyer tried to explain his wallet was taken, but of course, who is going to listen to a criminal? Fortunately for Gainer, the teller took a fingerprint because she suspected something was not right. Unfortunately for Gainer, the fingerprint did not get examined for 8 months. When it came back as not Gainer's, the charges were dismissed. That was not before his life was turned upside down, and he was financially bankrupted.

So what went wrong. Clearly, there was something less than a thorough investigation.  As with many cases, the police got an eyewitness ID, and closed the case. Despite all the research pointing out the fallibility of such identifications, police still accept them without question. If they had tried to verify the ID, Gainer would have been spared the embarrassment and costs of being charged in a criminal case.

Gainer is suing the police department, but that probably is not going to be successful. Police have immunity from such suits, unless they act intentionally. They can make serious mistakes - like here - and there is nothing anyone can do about. Hopefully, he at least got an apology......

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Everyone is commenting about Charles  Hood's case. While its by no means an exhaustive list, below are some of the posts from the last few days. In case you haven't heard, the fomer Collin County District Attorney, and former District Court Judge (later Court of Criminal Appeals judge), finally admitted to having a long standing  relationship. Whether it was going on during Mr. Hood's trial is in dispute, but there is no doubt the two were in a relationship when the District Attorney was appearing before the court. Obviously, that is not proper, especially when no one knows about. The question is what you do about it.

The majority of people are not aware that most errors in criminal cases don't cause the case to be reversed. Before a case is reversed, a court must find the error was harmful. Basically, that means the error had some impact on the proceedings. A problem I have always had with the harmless error rule is that intent is not a factor. That is, a court or prosecutor can intentionally do something they know is improper, and not suffer any consequences. Unfortunately, that is the deciding factor in many rules - whether it is something that will get the court reversed.

The problem with an improper relationship like this it is almost impossible to establish harm. You would have to show the judge ruled a certain way because of the relationship. That is going to be all but impossible to establish. As a result, there are no consequences, other than what the bar or the judicial commission might impose. Of course, that does nothing  for Mr. Hood and the other defendants who appeared in that court.

I have an alternative approach, which I think would have the necessary deterrent effect. Where an improper relationship is established, presume it was the result of the relationship. If a defendant can establish an error, then put the burden on the State to establish the relationship played no factor. If there clearly was no influence, then the case would be affirmed. Otherwise, the defendant would get a new trial, before an impartial judge and prosecutor.

If we want people to have faith in the judicial system, then we must ensure that all defendants are treated fairly. We also must protect the perception of the proceedings. I doubt anyone believes a trial before a judge and prosecutor are involved is fair. Let's do something to ensure that doesn't happen again.

Did prosecutor romance taint Texas murder trial?

The soap opera surrounding Charles Hood's case

Hood execution stayed

Prosecutor and judge in capital case admitted affair

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A hearing was held this week was held in Waco, Texas to determine whether the trial of a local civic leader should be moved out of McLennan County. The individual was  head of a local civic organization, and is accused of taking thousands of dollars. Few cases have generated this much coverage in Waco; reporters have even camped outside her house, and were there when she was arrested, and released from jail. Her attorneys are concerned that the coverage will prevent her from getting a fair trial, and tried to get the case moved. The judge denied the motion, which means the case will remain in Waco.

I've had many defendants tell me they needed to get their cases moved. Usually its because there have been a couple of news stories about the case, or they may think the judge is biased against them.. Few cases are notorious enough to even pursue a motion. Despite what most defendants think, potential jurors rarely know anything about the cases are selected for. Even if a few do know something, the burden for obtaining a change of venue is almost impossible to overcome.

So what it does it take to move a case to another county? The law is fairly broad - you have to establish the publicity has been so extensive that you cannot get a fair trial. Publicity alone is not enough; it has to be negative publicity, or coverage which leaves no doubt that the defendant is guilty. You try to establish that through affidavits from members of the community, and producing evidence of the coverage. Of course, if you submit an affidavit, the State is probably going to submit affidavits from people who believe your client can receive a fair trial. I've always thought that was silly way to handle the issue, because you are going to be able to find someone on both sides. I don't see how such affidavits can help a court decide whether the defendant can receive a trial; he can only do that by seeing the publicity and coverage, which as a member of the community, he has probably already seen.

This is one of the areas where a judge has almost total discretion. There are only a handful of cases that have been reversed because the court refused to grant a change of venue. The bottom line is that if the judge wants to try the case, he can. I've been involved in two change of venue cases. One was a capital murder defendant, who was being tried a second time; the first case generated a lot of publicity, and the court felt it was only fair to move it out of the county. The other was Kenneth McDuff, who had been accused of kidnapping a convenience clerk. It took several weeks to apprehend him, during which time there was constant coverage of his past, which included a prior conviction for capital murder. I have no doubt the judge (the same one in both cases) could have denied the motion to change venue in both those cases, but he knew that was not the right thing to do.

There is a lot to be said for trying defendants before their peers. However, that shouldn't trump the right to a fair trial. If there is some chance the potential jurors will have already made up their minds, a court should not hesitate to move the case to another county that has not been subjected to the publicity.

Defendants in high profiles cases are are in a tough enough position - they don't need the added problem of fighting both the facts, and the  press.

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