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

The Dallas Historical Society believes they found a letter written by President Abraham Lincoln to a mother who lost 5 sons in the war. The contents of the letter have been published, but before now the original had not been found. While this discovery is interesting, what caught my attention was the letter itself.

Dear Madam,

I have been shown in the files of the War Department a statement of the Adjutant General of Massachusetts that you are the mother of five (5) sons who have died gloriously on the field of battle. I feel how weak and fruitless must be any word of mine which should attempt to beguile you from the grief of a loss so overwhelming. But I cannot refrain from tendering you the consolation that may be found in the thanks of the republic they died to save. I pray that our Heavenly Father may assuage the anguish of your bereavement, and leave you only the cherished memory of the loved and lost, and the solemn pride that must be yours to have laid so costly a sacrifice upon the altar of freedom.

Yours, very sincerely and respectfully,

A. Lincoln

Lincoln's ability as an orator and a lawyer is well known. His eloquence is certainly displayed in this letter. What I find sad is that this was probably not all that exceptional in its time. Lawyers were great orators, and also great writers. It was accepted that if you were a lawyer, you wrote well.

Unfortunately, writing among lawyers is a lost art. Very few lawyers write well; few even know how to write in manner that can be understood by the general public. Legal writing is taught in law school, but its focus is on how to write "like a lawyer". That generally means write in a manner no one can understand what you are saying. Over time, I hope I have learned to write more like a "normal" person, but old habits die hard. I big part of my practice involves written advocacy, so its important for me. I also believe judges welcome briefs and pleadings that are direct, and written in a less formal manner. Despite conventional wisdom, less is usually better.

Maybe its because the importance of written communication has waned over the years. We have become a visual society; television, and now the internet, has replaced the written word. Lawyers have recognized this shift, and now focus more on audio/visual communication. Power Point is now a common occurrence in courtrooms across the Country. You cannot go to a CLE program without a power point, and many offer sessions on how to communicate visually.

We will probably never go back to a time when the written word was so coveted. In my mind, we are worse for it.

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People love CSI - if you have any doubt, look how many different CSI shows there are - Las Vegas, Miami and New York. I  admit, I'm one of those people. Everyone who watches CSI knows how quickly they solve crimes, analyzing every piece of available evidence. Most shows include DNA evidence, where they quickly determine who has handled a piece of evidence.

It is possible to get DNA from an item even if there isn't blood. It's called "touch DNA", and tests epithelial cells that are discarded from our skin. As you can imagine, examining and testing every piece of evidence takes a lot of time, and money. While you can do it on TV, real life is different.

Criminal defendants and jurors also watch CSI. I can't tell you how many times I have had clients ask if an item was tested to see if there DNA was on it. Most of the time the answer is no, because DNA tests are generally only done in sexual assaults. Evidence in violent crimes may also be tested - generally it's blood that is left at the scene, or on an item of evidence. However, rarely will there be more than a few items tested.

The advent of touch DNA has caused concern not only over the lack of resources to test all the evidence, but also the lack of storage of space. The Integrity unit created by Texas Court of Criminal Appeals has expressed concern that storage capacity could be overwhelmed, both because of the amount of evidence, but also the longer wait times caused by the additional testing, which means evidence will have to be stored for longer periods of time.

On TV, every item of evidence is analyzed and tested. Crimes are often solved based on the minute or innocuous piece of evidence.. Don't expect the same in real life.

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The pundits are already giving opinions on how an Obama administration is going to change things. With all the campaign promises, you have to expect substantial changes, including changes in criminal justice. Although criminal justice issues received almost no attention during the campaign, the President-elect has identified several issues he would focus on. As usual, Professor Berman is on top of this, and has already starting posting on this. He has identified several issues that will probably be addresse in an Obama administration  , which include:

• Disparities in the criminal justice system, which includes the significant disparity between sentences for crack cocaine and regular cocaine. It also include disparities in the frequency with which blacks and hispanics are stopped and searched, as compared to whites.
• Increasing ex-offender support to reduce recidivism.
• Increase the use of drug courts.

All those are good ideas, but they still have to get through Congres. Appearing to be soft on crime is never politically popular, as evidenced by the repeated rejection of attempts to reduce sentences for crack cocaine.

One thing he has not addressed is the tendency over the years to criminalize almost everything, and increase sentences across the board. The best way to be tough on crime is to advocate longer sentences. Common sense rarely prevails, especially when it comes to drugs.

The policies of the past have not worked - tougher sentences have not significantly reduced crime. instead of focusing on locking people up, we need to focus on preventing crime, and preventing those who are convicted from re-offending. The Federal Sentencing Commission has recognized this, and has started discussing alternatives to incarceration. That involves focusing on the cause of criminal behavior, including drug abuse. Drug courts have been a good start, and we need to expand that approach to other areas. We also need to provide more resources for treatment and rehabilitation; unfortunately, those programs have been the first to be cut when money is tight. Experience tells us that harsher penalties are not the answer, but it is still a  politically popular one.

Will an Obama administration be different? Only time will tell.

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Several weeks ago the trial of a prominent local civic leader ended abruptly with a guilty plea. While a mid-trial plea is not unusual, how this one came about was. Before the trial started, the judge refused to accept a plea that included 9 years in prison, and restitution. Apparently, the judge indicated he was not going to accept any plea that did not include at least 15 years in prison. At the time though, that was not even a possibility; the State had dismissed several counts that reduced the charges from a first degree felony to a third degree, and therefore the maximum punishment possible was ten years.

The judge was upset with the State for dismissing the charges, and accused them of trying to circumvent his authority. He eventually gave in, and at a break told the parties he was willing to reconsider the plea agreement. After additional negotiations, she accepted what appeared to be the original agreement.

The case raises questions about what role the judge has or should play in plea bargaining. The law is fairly clear that a judge cannot participate in plea bargaining; the question is when a judge steps over the bounds. A judge has the ultimately authority to accept or reject a plea agreement, so there was no problem with the judge refusing to accept the agreement. A judge walks a fine line when he states why he won't accept an agreement, especially when he indicates what he will accept. The line is far from clear, but at some point a court will declare a judge became too involved in the plea negotiations.

Why can't a judge take part in plea bargaining? The most basic reason is the inequality in power; neither side wants to alienate the judge who is presiding over the case. Another reason is based on the division of functions in the criminal justice system; the judge is supposed to be impartial, and not take sides. When the judge takes part in plea bargaining he comes down in favor of one side - usually its on the prosecution side. That position has to be  based on assumptions about the case, which may or may not be accurate. Also, a judge should be neutral; that neutrality is questioned when he takes a position on plea bargaining. If negotiations fall through, the court's decisions may be questioned since he has already indicated his position on the case.

The division of functions also  means the State controls what to charge. In this case, there was nothing improper about the State dismissing charges. They knew the facts, and based on that knowledge would have an opinion on what a proper resolution should be. If someone doesn't like the decision, there is a political solution; you can not  re-elect the prosecutor. The judge may not like the decision, but their job is to judge the case brought before them. They cannot, and should not, tell the State what charges to file. In this case.

The criminal justice system functions smoothly most of the time. It can fall apart though when one of the parties steps outside their role. When judges side with either the prosecution or defense, there are problems. The job of a judge is to be neutral and impartial; it is not to see that someone is prosecuted, or avoids punishment.

I'm sure there is more to the story in this case, as there are in most cases. While it should play no part in a judge's decision making, public sentiment appears to be equally divided; some think she got off too easy, while some think she was punished too harshly. Perhaps that is the definition of a fair and reasonable resolution.

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Its not surprising that there is a lot of discussion about the conviction of Sen. Ted Stevens. He's generated a lot of it, by taking the offensive and refusing to accept the verdict. Despite requests to resign, he kept his name on the ballot, and insisted he has not been convicted. The voters apparently weren't too concerned, as he was re-elected with a convincing margin. the big question now is how long can he keep his seat.

The answer to that question depends in part on whether he has  actually been convicted yet A criminal conviction generally involves two things - a judgment and sentence. Right now Sen. Stevens has been convicted, but not sentenced. So currently  there is not a final conviction. Once he is sentenced though, what happens?

There is no doubt he will appeal, and it doesn't look like he is going to lack for issues. At the top will be the juror who was excused after lying about her father's death.

Under the federal sentencing guidelines, he's sure to get penitentiary time; to stay out, he will have to get an appeal bond, which is not automatic in federal court. To obtain an appeal bond, you have to convince the court that there is good chance your appeal is going to be successful. His status as a United States Senator is not supposed to be a factor, but it would be hard to ignore. It certainly worked for Wesley Snipes, who was allowed to stay out while he appealed his conviction.

Whether or not he keeps his seat may depend on whether he stays out - obviously he can't serve if he is in jail. The question will be what happens if he stays out - he will have a conviction, but in most situations it is not considered a final conviction because there is always the chance it could be reversed on appeal. Ultimately it will be up to Congress - although he's been in a long time, it probably isn't going to help that the Democrats took control.

The answer to the question is that he probably will be treated differently. But then, would he have been prosecuted if he had been anyone else?

A few of the posts on this issue are collected at Sentencing Law and Policy.

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Even if you've never taken one, you probably know polygraphs are not admissible in court. The reason is that they are not considered accurate enough to be used in a court proceeding. That has been always been the law, even though some defendants have recently tried to get in favorable results.

For something that's not recognized as reliable, we place an awful lot of emphasis on them. District Attorneys routinely offer polygraphs, and agree to dismiss charges if the person passes. Generally those are cases where there is no physical evidence, and the case depends on witness testimony. Sexual assault cases are probably the most common. You can safely assume they wouldn't agree to do that if they didn't think they were reliable. The flip side is also true - if you fail, they have no doubt you are guilty.

A recent post contains an article that raises questions about just how accurate polygraphs. Apparently drug cartels are using polygraphs to sniff out undercover operatives. As a result, officers are being trained on how to pass a polygraph. There's no doubt these are highly trained officers, who have undergone a significant amount of training. The fact that they can do it though tells you something. At a minimum, it tells you they are not always accurate.

Even with their limitations, don't expect polygraphs to go away. We all want a quick, easy way to determine if someone is truthful. Even with all the advancement in science, we still can't uncover someone's thoughts. It's good to remember though that they are not always infallible, and not automatically assume someone is lying if they fail a polygraph.

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