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

The Texas legislature is in session, which generally means an attack on DWI laws. Every session a number of bills are introduced - most of them bad. Fortunately, few ever make it through the process though.

Texas is one of the few states without legislation authorizing roadblocks. That may change - the Senate yesterday passed a bill that would authorize roadblocks in very limited situations. If you are going to have roadblocks, this bill seems like it contains the appropriate limits. For one, it only applies to the 15 most populous counties, which leaves out many cities - like Waco. It also has a number of restrictions. Checkpoints are limited to 4 hours in lenght, and their existence (although not their location) must be publicized. There are also restrictions on where they can be set up. If you are going to have roadblocks, this appears to be as good as a bill as you are going to get; at least from the standpoint of protecting the ordinary citizen.

Another bill moving along is less circumspect. That bill would authorizie the collection of a breath or blood sample, even where the suspect refuses. Bassically, you can be forced to give evidence against yourself. If this bill passes, I wonder why you would even ask anymore. If you do ask, do you have to tell the person that you are going to get a sample even if they refuse?

With all the economic problems we have, you would think there would be better things to spend time on. This session appears to be no different than most though; crime is still a popular topic. Everyone likes to talk about how tough on crime they are. I'm not sure that is as important to voters as it is politicians, but the perception remains. If nothing else, you don't have to address the really important issues.

I'm sure there will be other changes discussed before the session is over. Stay tuned.

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I think most of us forget our age most of the time - we still have a self-image of ourselves when we were younger. So it's a rude awakening when we get reminded that we aren't in our 20's anymore.

Recently I received a large package from the Texas Criminal Defense Lawyer's Association. I had no idea what it might be -  i have never even seen an envelope like that. I opened it up, and was surprised to find a very nice certificate stating my 25 years of membership. The thought had never crossed my mind that I had been a member that long (actually it's a little more than 25, but who's counting). My first reaction was that I had become one of those lawyers who had are acknowledged in the back of bar journals for living a long time. I realize I still have a long way to go - there's a lawyer in my building who is working on his third 25. But it still made me stop to think what it means to have practiced law for almost half of my life.

You regularly see lawyers promoting their years of experience - the assumption is that the longer you have been at, the better you are. That can be true, but it certainly isn't a constant. Some lawyers are no better than they were the day they started. I think it has a lot to do with desire, and the reason why you became a lawyer. If its to make money, that is your primary focus. You only become better if it helps you make more money. On the other hand, if you are truly concerned about your clients, you are always trying to make yourself a better lawyer, so you can represent them better. For those lawyers, experience really does mean something.

One thing we have to guard against (I'm referring to those of us with mostly gray hair) is the tendency to think we know everything, and that someone just out of law school can't possibly know anything. On the contrary, they can teach us a lot. They  haven't been indoctrinated into "the way things are". They don't blindly accept things, and it's good for us to acknowledge that maybe there is a reason for that.  i have to make myself - sometimes I'm successful and sometimes not - but I try to be open to ideas from lawyers who haven't been at it a long time. They have a different perspective, and that can be good.

I'm not someone who dreads birthdays - after all, the alternative is not too attractive. I wouldn't want to be 20 again. On the other hand, I do hope that I can always retain that desire to learn, and try to remember that I really don't everything.

I think I'll go find a nice frame for certificate now.

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I started blogging for client development. I've done it for awhile now, and my focus is shifted. While I don't mind new clients (you actually need them), I don't write posts for that purpose. Instead, I like to write, and have posted on a number of topics. Those topics have included scientific evidence and innocence related issues (which I follow closely), to other things involving everything from pre-trial to post-conviction. I've also thrown in a few theological discussions.

So I've decided to rename my blog. Not being blessed with the creative gene (I actually think I have an anti-creative gene), I need some help. I've come up with a few ideas, including the boring (post conviction law), to somewhat more creative (blesssed are the persecuted, now what). I'm sure there a far more creative people, so help me out. I'll be glad to give credit if you want it.

All suggestions are welcome.

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Several people have already commented on the  story about Dallas police office Robert Powell, who wasvplaced on administrative leave for his conduct in stopping Houston Texas running back Ryan Moats. Moats was on the way to take his wife and other relatives to see his mother in law who was dying at a Plano hospital. Powell pursued Moats until he stopped in the hospital parking lot. While his clearly upset ran into the hospital, Moats proceeded to harass Moats for approximately 15 minutes. He has now apologized for his conduct.

The video of this stop has been posted on you tube and can be found here.  The question I have is what factor what race played in this stop and Powell's subsequent actions. This was in Plano, a relatively affluent suburb of Dallas, and Moats was a young black man driving a nice car. I wonder if a 50 something white male (like me) would have been treated the same. I don't really think so.

Granted, Moats could have behaved differently. But he was trying to get to see his mother-in-law, and was probably already upset - his wife certainly was. It's not surprising he just wanted to get his ticket and get into the hospital - which he says several times. (by the way, his mother in law died) He was in the hospital parking lot, and its clear they were there for a reason. You have to believe Powell wanted to something more than issue a ticket - he even pulled his gun during the stop. Watch the video, and form your own opinion.

I also think there was another factor at play here. Traffic stops are often nothing more than an opportunity to look for evidence. Yes, race is a factor in this also; the statistics are clear that black driver are more likely to be asked for consent to search their vehicle. Many times, they are looking for evidence of something more than the traffic violation; are you nervous, don't have a story that makes sense, smell of alcohol? If they can't find a reason, then they ask if you mind if they look in the car. It happens every day, in a high percentage of stops. My bet is that Powell didn't think he was going just write a ticket and leave; he could have done that and brought it to him inside the hospital. He thought he was going to be taking him to jail, and made that threat several times during the stop.

People violate traffic laws every day, and deserve tickets. They don't deserve to be harassed, and subjected to a full blown investigation. Sure, there are reasons to do that sometimes. But that is the exception, and not the norm. Unfortunately, it is reversed in many places. This was an especially egregious cases, and we heard about. I'm willing to be there a lot more like it we never hear about. The problem is the underlying attitudes and perceptions that officers take into the stop.

It's not too surprising that no one has tried to defend Powell's actions, and the response from his employer was immediate. Dallas police chief  David said he was emabarrased and humiliated and “It’s hard to find the right word and still be professional in my role as the police chief". Needless to say,his future doesn't look to bright. I would hope this be a lesson, but I doubt it will be. Most will say I would never do that. Maybe that wouldn't, but as long as your motivation is something other than issuing a ticket, the possibility is always there.

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I was in court recently waiting for a hearing, and heard an exchange between a defendant, his lawyer and the judge. The exchange wasn't unusual - the defendant was complaining about his lawyer - he wasn't working for him, and was working with the prosecutor to get a conviction. That's a fairly common perception about appointed lawyers; a perception that is almost always wrong. While there are all types of lawyers, there are many appointed lawyers who do excellent work. In this particular case I knew the lawyer, and knew he was doing everything he could for the defendant; the problem was that the client didn't like what his lawyer was telling him.

In allowing the lawyer to withdraw, the judge made an observation which many judges routinely forget. He said he had no doubt the lawyer was doing everything he could and was not working with the prosecutor, but the defendant might think that.  He ended up appointing another lawyer, with the usual warning that he wasn't going to pick who was going to represent him, and he needed to listen to his new lawyer.

I have to commend the judge for looking at things from the client's perspective. All too often judges forget what it was like to actually practice law when they ascend to the bench. They forget we have clients, who we have develop a relationship with. I've seen judges question what a lawyer was doing, or make some comment that does nothing but cause the client to have doubts about his lawyer's competence. On the other hands, I've seen judges commend lawyers on something they have done, and you can see the client's trust expanding before your eyes. Good judges recognize we have to work with our clients, and try to account for that in their comments. Of course they can't do that in all situations - but they try.

In the case I observed, nothing good would have been obtained from making the lawyer continue on the case. The case would have to be tried, even if there was a reasonable resolution. A writ would be sure to follow, which would take up more resources. The client would talk about he was screwed over by the judge, which which would create distrust among inmates. Granted, those things are unavoidable many times; but if there is a chance to avoid it, why not take it.

The lesson from this judges is to remember we have clients. For lawyers, how we interact with clients is as important as what we do. Clients don't know whether you are doing a good job or not. They need to trust that you have their best interests in mind. If they believe that, they know you are fighting for them, and will trust what you are doing. For clients, most lawyers really are trying to help you. You can't survive long if you continually screw clients over; so trust what your lawyer is telling you.

I don't know if the relationship with the new lawyer will be any better; there are some clients who are not going to get along with anyone. If the defendant complains about the new lawyer, the judge is probably not going to be sympathetic again. At least he tried though - which is more than will do.

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One of the joys of a criminal defense practice is the client who "knows the law". Never mind that they didn't make it past the 9th grade, weren't that great in school when they did go. I mean how difficult can the law. All you have to do is know how to read. And if you don't understand what is going on, there is always someone in jail who does.

I cannot estimate the number of legal "debates" I have had over the years with clients. I take a different approach than many lawyers; I don't profess to know everything, and leave open the possiblity that somone may come across something truly useful. I've never had a client bring me something I didn't already know, but I have benefited occassionally from the different insight they bring.

I have the same discussion with everyone, which starts with something like "there's is a reason why you have to go to law school for 3 years". You often lawyers refer to being taught to think like a lawyer; while that is not always a good thing, there is a different approach you have to learn. Law school is not so much about learning the law - most of us have long since forgotten everything we learned in law school. If you went to law school 28 years ago (like me), what you learned is probably no longer what the law is now. What you learn is how to approach and analyze issues, and uncover the answer. in short, you learn a process, so you can find the relevant know when you don't already know it.

I also point out that I have taught in a law school - I taught a post-conviction procedure for several years. Law students are some of the "best and brightest" from their colleges. They had to have good grades, and score high on the LSAT to get in. Most breezed through high school with little effort. In short, these are some really smart people. Even so, I never had a student who I would turn a case over to without supervision. Since post-conviction procedure is a technical and complex area, I also never had a student who didn't have some difficulty in understanding the legal concepts - and these were students who already had at least 1 years, and most 2 years of law school under the belt. The point of that is if a really bright person with a college degree and some law school has difficulty understanding certain legal concepts, what hope does someone have with far less education and experience.

I also like to point out that the worst person to analyze a case is the individual involved. There is a reason why lawyers go to other lawyers when they have legal problems. You cannot objectively analyze a case when you are personally involved.

I've also tried to use the analogy to medicine. I'm not a genius, but I'm fairly bright. I had a high GPA and managed to get into and graduate from law school. I have the ability to read a medical treatise, and understand some of it; but I would never try to tell my doctor how to treat me, much less tell someone else what his doctor should be doing. I might ask questions, but I accept the answer, because I know he how everything "fits together".

Of course, all of this seldom dissuades them. They have read something, or someone has told them something, and they know its right. Fortunately most clients will eventually accept your advice; their willingness to do is generally dependent on the degree of trust you've built it. That is why one of the most important things a criminal defense lawyer should do is develop a relationship with their client.

Several years ago I had a situation which still bothers me. My client was facing a possible sentence of life without parole because the government had filed a sentencing enhancement. After a lot of work, I was able to get the government to agree to withdraw the enhancement. The client was facing a lengthy sentence, but it beat spending the rest of his life in prison. The problem was that he refused to believe the judge could sentence him to life. We discussed the issue for hours; we went over and over the statutes, and I provided him with research showing how the courts dealt with the issue. The problem was that he had a buddy, who had a case just like his; his buddy had his sentence reversed, and sent back to court. Of course, he couldn't remember the buddy's name, but he knew it was the same. He also a few case cites - I looked them up, and showed them to him. They were good cases - they just didn't have anything to do with his case. We went round and around; he would tell me he believed me, but he knew the judge couldn't  sentence him to life. We ended up going to trial; he got convicted and sentenced to life.

If there was ever a situation where someone was sentenced for being stupid, this was it. I know there wasn't anything more I could have done, but I'm still bothered by that  case. He let someone talk him into to making a incredibly bad decision. His buddy didn't have to do the time - he did.I know the decision was ultimately his, but he had some help. 

 I've been at this for 28 years, and I haven't found a good solution for it yet. There are always those who are going to not trust their lawyers. Our job as lawyers is to develop that relationship, so our clients know we have their best interests in mind, and we are fighting for them. For clients, either trust your lawyer, or find someone you do trust. Don't trust the guy who dropped out high school, but says he "knows the law". After all, if he is so smart, why is he still sitting in jail there with you?

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Last week I followed one of my passions - I went to Del Rio and served as a Marshall for the Bassmaster Elite Series tournament. For you non-fisherman, the Elite series is a series of tournaments across the country for the 100 best fisherman in the world. They fish for money - $100,000 is usually first place, as well as points for an angler of the year competition (which pays $250,000)

This was the first year for the Marshall program - basically you get to ride in the boat with a professional angler. Technically, you are there to ensure they follow all the rules - which really isn't necessary because they are the most honest guys in the world. Actually, its a way for BASS to make a little extra money, and expose people to professional bass fishing.

Del Rio was not very South Texas - the temperature never got above 48 - the first day the wind was howling, which is means the lake looked the Gulf of Mexico. I learned within the first 10 minutes that professional bass fishing is not all fun and glory - that would not be the way I way described blasting across a lake at 50 mph in freezing cold (usually they go about 70-75, but the waves made them slow down) Taking it a slow is not an open when you are fishing for the kind of money they are.

If you think practicing law is hard, think again. These guys have to pay $5,000 just to fish in the tournament. They also have to pay for transportation to and from the event, and lodging. Of course they also the normal expenses associated with fishing, such as gas, tackle, etc. If they do well, they might make enough to cover their expenses - if they don't, they are in the hole.

These guys are good (if you think this is sexist, they do have a separate women's tour). Yet they don't have control over anything. One of those is the weather; during the first part of the part when they were allowed to practice, the temps were in the 80's. That all changed on the first day of the tournament. Needless to say, bass (like humans) behave differently when its cold than when its hot. So basically, anything they learned during practice was out the window.

Bass do not volunteer to be caught. Professional anglers know more about bass behavior than we probably know about human behavior. Basically, fishing is trying to trick them into biting an artificial lure. There are thousands of different lures, and hundreds of different ways to fish them. They have to decide which lure, and which technique is best on that particular day and time. If they guess right, they are successful - if not, not so much.

One thing I learned over two days is its not just about catching fish - they can all do that. Its about catching the biggest fish, which is a lot harder to do. The two fisherman I was with had no problem finding fish, but they struggled with trying to get the big one.

Over the 16 hours I sat in the back of the boat,  I thought about several things (other than wishing it would warm up and I would get some feeling in my fingers). Lawyers just think we have it hard; we at least get to work in the comfort of a controlled space. If we lose, we don't lose everything - although we have expenses, we don't have to put up our own money each time we take a case. Even though we have to deal with a lot of issues, we can predict most of them. While prosecutors and jurors are hard to predict, its easier than trying to guess what a fish is going to do. And most importantly for me, I don't have to be away from my family for most of the year - I get to home each evening, and enjoy my family and my home.

I like to fish, and someday I would like to be able to do more of it. However, I would never want to be a professional fisherman. I'm thankful I have the privilege to practice law - and I'm thankful I had the opportunity to recognize what a privilege it is.

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There have been a number of stories recently about efforts to abolish the death penalty because of cost. A good collection of those stories is here. Currently 8 States are considering proposals to do away with the death penalty because it cost more to execute someone than jail them for life.

What troubles me about this debate is how about reflects on our current culture. Human llife is assigned a value in dollars and cents. At some point apparently its alright to take it as long its not too expensive. Concerns about equality and deterrence, and fear of executing an innocent person are not the subject of discussion; instead, its come down to dollars and cents.

I guess it shouldn't come as too much of a surprise. The vast majority of people believe we have executed innocent persons, yet most of those still believe in the death penalty One life is not all that important; especially when it is a nameless, faceless person. We make the same decisions in other areas of life; it's not limited to the death penalty.

No matter what the reason, I'm happy for the trend. It is costly to handle a death penalty case, and we don't even spend enough now in defending those cases. The economic crisis appears to be just we need to recognize this.

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