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

Bell County is hopping on the DWI bandwagon for New Years. According to a press release, if you are suspected of driving while intoxicated and refuse a breath test, they are going to obtain a warrant for your blood. Unfortunately, this is not something they just came up with on their own; many other jurisdictions have already implemented this policy. It may not be publicly announced, but it is becoming more common that a refusal to take the breath test is not going to be accepted.

This is being justified as tactic to get drunk drivers of the streets. If you think about that for even a few seconds, it is clear that is not the reason for doing this. It is nothing more than a tactic to obtain more convictions. The driver is already off the street; he has been arrested, and taken to jail. He/she is also off the streets, because their license is taken, and will be suspended for at least 180 days. The only reason to forcibly draw blood is to get more evidence for a conviction. They already have at least probable cause, or they wouldn't have arrested the person.

There's another problem I see with this proposal, which is how many drunk drivers get away while the police officer is taking someone to the hospital to have their blood drawn. They are off the streets for a longer period of time, during which time there are probably people driving under the influence.

I certainly don't advocate driving while intoxicated. Personally, I don't think you have any business driving after you have had anything to drink, even if you aren't legally intoxicated. I don't drink, so it's not something I'm worried about. But I am worried about forcing people to provide evidence to possibly convict them.

The legislature knew people would be hesitant to submit to breath tests, and tried to provide an incentive to take one; your license won't be suspended for as long. They also recognized that in some cases, such as accidents, blood tests should be mandated. They have never approved blood tests in all cases though - if so, the warnings need to be rewritten - do you want to give a breath test or blood or test - you are getting one of them.

I wonder if the new policy is going to include the warning that they are not going to take no for an answer. It doesn't seem fair to me to let someone refuse a test, make them take a blood test, and then suspend the license for the refusal. Even if the blood test was negative, your license could still be suspended for refusing the breath test. At least you should know what is going to happen if you refuse.

Please drink responsibly - not only during the new year celebrations, but all year. But be aware that if you are arrest, you may not really have the right to refuse to be tested.

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Probably most have seen the story out of Prescott, Arizona.  where 38 year old lawyer Damon Rossi was arrested for his giving his client a piece of candy! It seems that Mr. Rossi had asked the officers in charge of his shackled client if he could give him a piece of candy, and they told him no. Rossi went ahead and did it anyway, which was probably not the wisest thing to do. Nothing was done at the time; instead, the deputies turned the matter over to the sheriff's department criminal division, and they decided to obtain an arrest warrant. They then went and arrested Rossi at his home, and took him to jail.

I'm not condoning what Mr. Rossi did, because it was a stupid thing to do; frankly, I don't have a lot of sympathy for him. If an officer tells you not to do something, you don't do it. If he didn't agree with the decision, he could have taken it up with a supervisor or the sheriff. Or he could have given the candy to the deputies, and asked them to give it to the client, after they made sure there wasn't any contraband. So he certainly can't claim the moral high ground on this.

On the other hand, you have to wonder whether obtaining an arrest warrant is the way to handle the situation. I'm not sure what the offense is - I guess its providing contraband. Technically, it might fit the definition. However, I don't think many prosecutors would want to argue before a jury that candy is contraband - especially right around Christmas.

Another problem I have is going to his home to arrest him. I'm sure he would have turned himself in. Were they worried he was going to run. Or maybe they worried he would show up with a pocket full of candy. Lawyers routinely obtain agreements from officers to notify them when a warrant is issued, so the client can turn themselves. It makes sense to do so, because they have better things to do than tracking someone down to serve a warrant when there is no reason to do so.

I'm sure this will all work itself out, but I think it is indicative of a bigger problem - the trend toward over-criminalization, or making everything a crime. Not everything is, or should be a crime. We seem to have developed a mentality that we need to regulate everything through criminal law. As a result, almost anything can now be a crime. We all know the results that has had on the jail population. But I wonder if it doesn't have more subtle results - do we start seeing right and wrong as whether it's legal or not? We can anything we want, as long as its not against the law?

I hope most people still have a moral compass, and they don't have to guess whether something is a crime or not. I still think most people never consider committing crimes - the idea of whether or not they would get caught isn't a factor. I only hope that we can continue live with those values - when we start having to guess at whether something is a crime or not, we will be in real trouble. I'm sure Mr. Rossi never dreamed he would end up being arrested in his home for giving out candy.

 

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I've read several posts recently on choosing a lawyer. There's also an ongoing debate on marketing for lawyers - some who think its a good thing, and some who don't. The marketing debate seems to be divided between lawyers just starting out, and those with established practices. Predictably, lawyers who are already established tend to look down on marketing Obviously that is not always the case, because there are some established lawyers who aggressively market themselves. For the most part though, the more established you are, the less you rely on marketing.

You would expect lawyers with experience to emphasize that, and for the most part they do. The question for those choosing a lawyer is just how important is experience? For good lawyers, experience is valuable. I'm just starting my 28th year, and I like to think I've learned a few things over those years. However, just because you've been doing it a long time doesn't mean you have been doing it well. The legal system doesn't demand a lot from criminal defense lawyers, and average, or below average lawyers can get by just fine. The test for effective assistance is a "reasonably effective lawyer", which basically means someone who is average. You don't to try a case perfectly, or like a great lawyer would, to be effective. That comes as a surprise to most clients, because they expect their lawyers to more than reasonably effective.

For good lawyers, experience is an asset. Not only do you have the experience of handling all types of situations, you also have built up a reputation. There is no doubt that prosecutors make decisions based on the reputation of the lawyer they are dealing with. If it's someone they know always plead their cases, there isn't much incentive to offer a good plea. On the other hand, if it's someone they know is going to make them work for everything, and isn't afraid to take a case to trial, they are going to more inclined to offer a favorable resolution.

The unfortunate fact for clients is that they don't know what a lawyer's reputation is among other lawyers. There are a few high profile lawyers, who are familiar to a lot of people. For the most part they are good lawyers, but that is not always the case - they may just be better at generating publicity. Just because a lawyer successfully handled a high profile case doesn't mean he always does that. I've seen cases where high profile lawyers performed terribly. On the other hand, I've seen cases where those same lawyers performed miracles.

One of the drawbacks of being a high profile or successful lawyer is that you have a lot of clients. Unfortunately, that often means you have less time to spend on each case. Some lawyers handle it by adding staff, or additional lawyers, while others try to limit the  number of clients. Even when you try to limit the number of clients its hard to say no to someone who you feel is getting screwed by the system. A lawyer may have the best intentions, and all the experience, but they also need the time necessary to devote to a case. I often look back longingly to when I first started. I didn't have many clients, so I could devote a lot of time to each case. I could spend hours working on the case, because I had the time to do so. Of course, a lot of that time was spent trying to figure things out. I was terrified of getting embarrassed in court because I didn't know some rule or procedure, so I tried to anticipate everything. Fortunately I no longer have to do that, which means I don't have spend as much time on each case - in other words, I don't have to re-invent the wheel each time.

In the end, experience is important, but shouldn't be the only thing you look for in choosing a lawyer. I think the intangible is how much a lawyer cares about their clients. Good lawyers view clients as more than dollar signs; they want to help the client first; that doesn't mean they will work for free, because they expect to get paid well for what they do. However, its a matter of priorities. The only way you can determine if a lawyer is truly interested in helping you is to spend some time with them; you should feel comfortable with them, and trust they have your bests interests in mind. After all, you are placing your life and future in their hands.

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I recently had a case where there was physical evidence that had not been tested. The police didn't test it because the case against the defendant seemed strong. The evidence could exonerate him, and my client insisted it be tested. We went over the risks, the biggest being that he was going to make the State's case for them if came back as him. Without DNA testing, we could still argue he was not involved, or at least that there was a reasonable doubt of guilt. With the evidence, there would be no doubt. We also went over the reliability of the tests, and how the odds weren't with him. He continued to insist he was innocent, and we sent the evidence off to be tested. It came back today, and sure enough, there is now no doubt whatsoever that he's guilty.

This is not the first time I've had this happen. I can understand rolling the dice with a polygraph. They aren't admissible, and if you fail, its not going to hurt you in court. With DNA tests though, the evidence is admissible. More importantly, its far more reliable than a polygraph. You aren't going to get lucky on a DNA test - they best you could for would that the results were inconclusive.

So why do people insist they are innocent, when there is no doubt they are guilty? I don't have any scientific support, but I think that are some people who can actually convince themselves of something. The more they tell themselves they aren't guilty, the more they believe.

Of course, I also think that are people who just don't believe their lawyer (yes, its really true). If you tell them the tests are accurate, and its going to prove their guilt, they aren't going to believe you. Maybe some just feel like they don't have anything to lose, and want to roll the dice - even the odds against them are astronomical.

I've resigned myself to the fact that this is something I will probably never understand. Maybe I don't want. to.

This situation also highlights something else we have to deal with - some clients seem determined to everything they can to sabotage their case. Unfortunately, they are often the first to blame everything on the lawyer. I guess if being a criminal defense lawyer was easy, everyone would want to do it.

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There's been a good discussion over the last several days about what it takes to be a good criminal defense lawyer, and how well prosecutors can transition into being defense lawyers. Mark Bennett astutely pointed out the concept of confirmation bias; the tendency to see things we expect to see. Using the case of a recently exonerated defendant, he pointed out how defense lawyers are not immune from confirmation bias. I certainly can't disagree with that, but I think there's a distinction between confirmation bias and laziness. Unfortunately, there are lawyers who really don't care about their clients. The client represents a fee, and the lawyer is only interested in collecting the fee, and going on to the next case. When profit is the primary motivation, the goal is to resolve the case with the least amount of work possible. That usually involves a plea, because trying a case takes time and work.

A good defense lawyer is one who cares about their client. We have to make a living, but that's not what motivates good lawyers. They want to make sure they achieve the best result possible. That requires work; investigation, research, and time. You have to know everything about the case as well as the client. I don't think bias is a problem with those lawyers, because they looking at a case from every angle possible. Even if there is no doubt, they still work to achieve the best possible result.

What no one has discussed is bias among the group that exercises the power - judges. It's not surprising that it exists; they see thousands of cases. All but an extremely small minority are guilty, or at least admitting their guilt. It doesn't take to long to start assuming that everyone is guilty. Obviously, that impacts all types of decisions. Good judges recognize it, and try to account for it. They recognize that not everyone is guilty, and they have to make those who aren't do not get convicted. Few are successful all the time.

There's also a built in bias in the law once a conviction is returned. On appeal, courts assume the defendant has already a trial, and been found guilty. In post-conviction litigation (i.e. habeas corpus), there is a presumption the defendant is guilty, and the conviction is valid. It takes a lot of evidence to overcome that presumption. As a result, people with strong innocence claims are not able to obtain relief, and remain in jail.

Judges are supposed to be impartial referees, but too often they move to one side or the other. As defense lawyers, we often face what appears to be two prosecutors.  When things go wrong, everyone is quick to blame the lawyer or the prosecutor. The judge may have played just as big a role. Few judges are willing to intervene when they see something they know is wrong. We need more judges willing to do that.; unfortunately, doing the right thing is often not the politically popular thing.

We need  to recognize the good judges, and make sure they get the credit they deserve. Maybe if we do, we will get more of them.

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Thanks to Grits for this post. Most police departments rely on confidential informants out of necessity. The people who know about crime are usually are the ones involved in it. Some departments rely on informants more than others; its easy to make a case with an informant, and some officers may become too dependent on them. Such apparently is the case in Albuquerque, N.M., which ran this ad recently:

The Albuquerque Police Department put a want ad in the city's weekly newspaper for "people that hang out with crooks to do part-time work."

"Make some extra cash! Drug use OK. Criminal record? Not a problem." The ad in the Weekly Alibi prompted 93 calls during its two-week run before it was taken down last week, police spokesman John Walsh said.

He said some calls yielded valuable information in a drug investigation and two violent crime cases. Walsh said the ad will run again "as soon as the detectives feel they need the help" and it could become a model for other agencies

This story is from USA Today - if it was from anywhere else, I would have trouble believing it.

I can see all sorts of problem with this tactic, the most significant one being people willing to manufacture information to make some extra cash. We all know times are hard, and this is an offer of easy money. The ad targets drug users, and those with criminal records, which are probably either people not working, or having a hard time finding a job. You hope they verify any information they get before making an arrest, but if they are having to advertise for informants you have to wonder.

The problems with informants have been well documented. Behind faulty eyewitness identifications, they are one of the biggest factors involved in wrongful convictions. Most of those involved in the criminal justice system are looking at ways to limit their use, not expand it. So I hope this isn't a tactic picked up by other departments.
 

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This comes from Robert Guest at Dallas Criminal Defense Lawyer. A new reality show descended on Odessa, Texas. Apparently they went in response to a case involving Yolanda Madden, after an informant used by the police department testified in Federal Court that he planted evidence on Madden; she was eventually convicted and sentenced to 8 years in prison. Even with that testimony, and both Madden and the informant passing polygraphs, her conviction still stands.

The show decided to set up a sting. They rented a house in Odessa, and placed grow lights on two Christmas trees inside. Apparently the police believed they were growing marijuana, and in less than 24 hours, a search was executed on the house. When the officers arrived, they were greeted by Kopbuster's attorney. Going with the strategy that the best defense is a good offense, they arrested the attorney and took him to jail.  He wasn't released until the media showed up, wanting to know what happened.

According to the story, the police department has refused to release the affidavit for the search warrant. That's not too surprising, since you have to think it is extremely incriminating. If an informant said he had been inside and observed the marijuana, then the affidavit is clearly fabricated. If they relied on some type of thermal imaging, it would be illegal. Since nothing illegal was taking place, it is hard to understand what they could come up with to justify their actions.

What's amazing about this story is how it is way to trap the police. If everything in the story is true, it reflects a systemic problem in the police department. If this did happen, all cases involving informants will be called into question. It doesn't take much imagination to predict the financial consequences to the city.

Some may question the techniques used by the show; the police department is trying to come up with a crime to charge with them, although I can't imagine what it would be. The fact is, dishonest police officers can fabricate information, and there is no way to prove they did so. All they have to do is allege they have information from an informant, who has provided truthful information in the past When they don't have to name the informant, there is no way to verify the information. Traps like this are the only  way to uncover this type of misconduct. In reality it is nothing more than the same type of techniques used by police. They routinely set up "reverse stings", to uncover those willing to engage in criminal behavior. Here it was the police engaging in the illegal behavior.

It will be interesting to watch this story unfold. Both to see what the facts actually turn out to be, and to see how it plays it; both for the Kopbuster's attorney and Yolanda Maden.

I'm interested to know what other people think about this tactic. Post a comment and let me know your thoughts, pro or con.

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I've written before about the unreliability of eyewitness testimony. Most people (including jurors and prosecutors) believe eyewitness testimony is generally reliable. In fact, most prosecutors are ecstatic when they have a case with an eyewitness. We have seen countless examples during the last several years of identifications that were clearly wrong. Even with that knowledge, the reliability of eyewitness testimony is still accepted, and difficult to overcome.

A humorous example of a mistaken identification occurred in a Dallas Courtroom. The following is from a story in Texas Lawyer:

On Nov. 11, George Milner Jr., a partner in Dallas' Milner & Finn who many consider the dean of the Dallas criminal-defense bar, was defending Marc Needham, who was accused of misdemeanor deadly conduct. According to a trial transcript, when Dallas County Assistant District Attorney Brian Poe asked a witness during direct examination to identify the defendant, she pointed to Milner. Poe asked her if she was sure, to which she replied: "He's the only one in the blue suit with blue tie. He stood up and objected. Him -- that's him there." After Poe passed the witness, Milner didn't miss a beat, telling Dallas County Criminal Court No. 6 Judge Angela King: "Your honor, first of all let me enter a plea of not guilty." Then Milner began cross-examining the witness. When Milner asked her what she remembered, she said: "Well, sir, I hate to tell you this, but the first thing I heard was you pointing a gun at me and saying, 'Now do you want to F with me?' Don't you remember that?" "No. My memory is about like yours," Milner said. "No, mine is very sharp, sir," the witness replied. During redirect examination Poe asked the witness, "Would you be surprised that the person you've been talking to for the last 25 minutes is actually named George Milner? He's a prominent attorney here in town, and he represents Marc Needham?" The witness replied, "Well, that's a good trick they played, because he looks just like him to me." The jury found Needham not guilty. Poe believes the reason the witness misidentified Milner is she saw him when she testified at a grand jury hearing. For Milner, it was just another great story he has accumulated during his 50 years practicing criminal law. "It was funny -- one of those once-in-a-lifetime deals," Milner says. "There's no rule as to what you do when that happens."

This case points out something more than the unreliability of eyewitness testimony. It points out something all defense lawyers know - the witness knows someone seated at the other side of the table is the defendant. It's generally not to hard to figure out which one it is - you can usually tell which one is the lawyer and which one is the defendant. Here, the witness was apparently confused. There is no doubt she wasn't basing her identification on what she saw at the time - she was basing it on who in the courtroom was fit the description the best.

This also points out a problem with lineups - witnesses pick the person who best fits the person they saw. This is why everyone recommends sequential lineups, where the witness is shown one picture at a time.

One of the things that bothers me about this case is the action of the prosecutor. The job of the prosecutor is to see that justice is done. If the only evidence was the victim's identification, is it justice to prosecute someone whose identity is suspect? Too often prosecutor's rely on juries to make the decision on guilt, and they did so here. In doing so, they abdicate their responsibility. More importantly, most jurors believe prosecutors have no doubt about a defendant's guilt. Too often, that enters their decision, and could have done so in this case. Thankfully jurors saw the case for what it was, and returned a not guilty verdict.

I wish that the more of these stories that come out, the more the public would start question the reliability of eyewitness identification. Unfortunately, there hasn't been much impact so far, and I don't see it changing. That is why it is critical that we adopt practices that will ensure identifications are as accurate as possible.

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In case you haven't heard about this, Vanity Fair recently had an article about a mother who refused to accept a guilty verdict in her son's murder case. John Giuca's mother, Doreen Guiliano, was apparently prepared to do anything to help her son. She ultimately created a false persona, by dying and her hair, and getting herself in shape. She then went "undercover", and befriended one of the jurors. She earned his trust, smoking marijuana with him, cooking for him, and who knows what else.He ended confiding in her that he should have never been on the case because he knew some of the people involved, and knew the defendants were guilty. She was recording everything, so it is all on tape.

The son's lawyer now has the information, and has to to determine how to use it to obtain a new trial.

With a story as unusual as this, you expect people to start talking about. Some have praised her tenacity, focusing on the fact that she uncovered what was no doubt serious juror misconduct. Others have raised the question of what effects this could have on potential jurors.

There are several things that bother me about this. One is the lengths she went to in order to gather information. If the police engaged in that sort of conduct, it would be entrapment. While they might form a personal relationship, they certainly wouldn't go to this extreme. It bothers me that anyone would be willing to do that; it appears she essentially prostituted herself to obtain information. I realize my personal moral code may be different from others, but I have a hard time believing most people would do that.

Another problem I have is the focus on the results; no matter what she did, she uncovered information of misconduct. The police routinely make that argument to excuse their failure to follow the law.  The same people condoning the action in this case are the ones who vehemently argue the ends do not justify the means when it comes to the government. I realize there are differences, because private citizens do not operate under the same constraints as government agents. We must impose limits on the government, because of the potential for abusing their power. But in the end, does that mean a private citizen can do anything to obtain information.

I have to agree in part with Scott Greenfield that we should be concerned with the effect this may have on potential jurors. Jury service is an inconvenience, and most jurors expect that once the case is over, they are finished. I'm sure they don't expect to be stalked, or investigated. If potential jurors started worrying about that, you have to wonder how many people would be willing to serve. There is also another problem I see, which is encouraging this type of conduct, and creating the impression that most jurors hide information.  In my experience, cases like this are extremely rare; it's rare that a juror will know the victim in the first place, and even rarer that they either don't disclose it, or someone doesn't already know about it. That doesn't mean contacting jurors doesn't have a place, because it does. It is always useful to find out their thoughts about what happened, and try to determine if anything improper occurred during deliberation. Those contacts however are generally not very intrusive.

Assuming they are able to use this information, there is no guarantee a new trial is going to be granted. That depends on a number of things, including what influence the juror's knowledge had on the decision. If he kept that knowledge to himself, and didn't share it with other jurors, the court may determine there is no harm. The evidence of guilt is also an issue. I don't know anything about the case, but if the evidence of guilt is overwhelming, the failure to disclose the information is going to have less effect.

This will be an interesting case to follow. In many way, they are in uncharted waters, and no matter, some precedent is going to be set.

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