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

As criminal defense lawyers we don't always represent the nicest of people. Some of them are difficult to get along, and want to fight you at every step. Many lack basic social skill - that is usually why they are in your office in the first place. Despite all that I generally like almost all of my clients; when you get to the bottom of their problem, it often is an otherwise good person who made a bad decision. Of course, getting to the bottom of things often takes time and effort.

The reason why I started thinking about this arose out of the Cameron Todd Willingham case. Except for a few people, most people who have looked at that case now believe he is innocent. One of those few people is one you would not expect - his trial lawyer. He has described him as a sociopath, and still believes he is guilty. It's pretty clear he didn't like him.

Todd's lawyer is not the first to think his client guilty - although his conduct may be to the extreme. The fact is, most defendants are guilty of something. The truly innocent client is rare, and one most lawyers dread getting because of the enormous burden you carry with you. Even if you know you're client is guilty, that doesn't mean you don't give them the best defense possible. The State already  has a prosecutor aimed at convicting them, and they don't need any help. If you are not prepared to make the State do its job, and do everything you can for your client, you need to do something else; maybe something that doesn't involve people's futures.

Do you have to like your client to effectively represent them? Not necessarily, although its nice when you do. Good criminal defense lawyers are passionate about something else; you can call it justice,  or something else, but they are passionate about making sure the system works, and the letter and spirit of the constitution is put into effect. That is why good lawyers can represent the people who society considers the most reprehensible.

Effectively representing someone means more than knowing the law though. You also have to know your client. There's a reason why they are in the position they are in, and you need to find it. In doing so, you usually discover they are not the person the State is portraying them to be. And yes, you might even start to like them.

It always find  it odd that people who are fond of saying "hate the sin, love the sinner" don't apply that to criminal defendants. Society, with a lot of help from the prosecutor, is quick to jump all over something who does something bad. Their lawyer shouldn't do the same; they have a story to tell, and its the lawyer's job to tell. You don't have to like what they did - there's probably something wrong with you if you do - but you do have to find the reason why did it. Hopefully its something other than that they are sociopath.

So you don't have to like your client, but it helps if you do. After all, it is you and him (or her) against the government.

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Talk about rehabilitation and those "tough on crime" types label you a bleeding heart liberal. In thier view, rehabilation is not the primary goal of punishment. Instead, they want to send everyone away as long as possible. In thier view, lenghty prison sentences will deter others from committing similar crimes, and the offender will learn his lesson. Of course, the evidence over the 50 last years doesn't support that, but why let a little thing like logic get in the way.

The fact is, most people in prison are going to get out someday. Society has an interest in making sure they can make a succesful re-entry. Unfortunately, that reality is too often ignored. If you need evidence, you only need look where budgets are cut when times get tough - generally in rehabilitation services.

Some gains are being made, and Texas has started to see benefits from the push to come up with alternatives to revoking a person's probation. Other states are being forced to limit their prison populations.

All this is background for a story I recently came across that I found fascinating. Michael Eubanks spent 31 years in prison for capital murder, and was finally released on parole. Before his release, he participated in a pre-releas program based at a Christian prison in Sugarland. One of the courses was taught by former Harris County District Attorney Carol Vance. Never one to be described as soft on crime, Vance actually prosecuted Eubanks and tried to sentence him to death. You have to wonder what Eubanks thoughts when he walked in saw Vance.

The reaction was anything but expected. Eubanks said although at one time he hated Vance, he had come to admire him. As for Vance, he said he would trust Eubanks as a next door neighbor - huh! Maybe this rehabilation thing really can work.

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Yesterday the Court of Criminal Appeals denied the writ of habeas for Michael Hood; he sought relief after he discovered the prosecutor and the judge had an ongoing affair, which included the time of trial. Hood obtained a recommendation from the current state trial judge that relief be granted. That is extremely difficult to obtain in any case, and most times is enough. The trial judge made several findings, including and finding that Hood's lawyer's exercised reasonable dilligence in bringing the claim. Not suprisingly, the judge and prosecutor hid the affair, and Hood's lawyer's did not find out until well after the trial; after his appeals had already been denied.

I didn’t have a lot of hope for Hood’s claims. The Texas court of criminal appeals does not exactly bend over backwards to help capital defendants; one might conclude they go out of their way to affirm the convictions. However, I would have never guessed the reason for denying the claim. I thought they would hold that Hood could not prove the affair affected his case in any way. The court did not address that issue, instead holding he had waited too long to bring the claim. The surprising thing about that finding is that the trial judge specifically found that his lawyers exercised reasonable diligence. After all, the judge and prosecutor were doing everything they could to keep anyone from finding out.

The Court of Criminal Appeals has been in the middle of the news for at least the last year. Almost everyone knows about the hearings to reprimand the presiding judge based on the closure of the clerk’s office, which prevented Michael Richards from obtaining a stay of execution. Their response was to blame the lawyers. No matter what the reason, it appears there is no doubt that Richards would have received a stay, and was prevented from doing so because the presiding judge ordered the clerk’s office to close at five o’clock. More recently, the court is in the middle of the controversy over the execution of Cameron Todd Willingham.

Scott Benson - i.e. Grits for Breakfast is not one to mince words. He recently wrote that the court has become an international disgrace. I’m certainly no expert on world opinion, and I will leave that to others. However, there is no doubt that the court seems oblivious to public opinion. I don’t necessarily think that is a bad thing, because courts should not be influenced by such things. However given the almost universal condemnation you have to wonder why they don’t at least consider that; they have to know this is another opportunity for the media to come down on them.

The answer to my question in the title of this post is probably yes. I’m sure there will be other decisions that will be equally as bad in the eyes of the public. The question will be whether that translates into a change come election time. I tend to doubt it, because most people do not have a clue as to who the judges on the court are, and what they do. I have been practicing law for over 25 years, and I couldn’t tell you the names of more than a couple of judges on the Supreme Court of Texas. I simply do not practice there, and do not keep up with civil law. If a lawyer doesn’t know who the judges are, how can the general public..

Maybe this is what we need to to reform the judicial system. While appointing judges has its problems, you generally cannot argue with the fact that most judges who are appointed are qualified. You may not agree with their decisions or their philosophy, but generally you cannot disagree with their qualifications. The same cannot be said for elected judges. History has shown that sometimes all you need is a popular name to win an election. If you call most lawyers, probably most of the judges elected to statewide offices are not the most qualified candidates in the field. The time has come to change that, and maybe this is the chance we need.

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I hate to question a good thing - the saying "don't look a gift horse in the mouth" comes to mind. But Over the last week I have been amazed at the coverage being given to Cameron Todd Willingham. You can't skim the blogs or the newspapers without seeing some discussion of the case. (For a great collection of the coverage see Grit's recent post) I'm glad people are looking at this issue - I only wonder why it wasn't done earlier.

Todd Willingham's story of an innocent man being executed based on junk science is not new. Steve Mills and Maurice Posely were the first to cover the case. The two veteran Chicago Tribune reporters were the first to cover the case - in 2004. Their story concluded that Willingham was probably executed for an accidental fire. The story got some coverage in the national media, but nothing close to what the current coverage is. The New York based innocence project was also aware of the case; they seized upon the similarities between Willingham's case and that of Ernest Willis. Although the cases were almost identical, the result was not. Willis was freed - with the help of the prosecutor - while Willingham was executed. The Innocence Project solicited the leading arson experts in the world to review the case. They released their report in 2006; their conclusion - the fire was not intentionally set, and the testimony used to obtain the conviction was nothing more than a collection of myths and "old wives tales."  This report received a little more traction, largely because of the connections of the Innocence Project. However, it quickly died out.

One thing the report did accomplish though was that it pushed the State of Texas into action. The Forensic Commission was created, and the first subject studied was the Willingham and Willis cases. Even though they had a  report from a panel of leading experts, the commission went out and hired their own expert. Not surprisingly (or perhaps surprisingly for some) the state's expert came back with the same conclusion reached by the panel - the fire was nothing more than an accident. At the same time - not by design because I know the reporter had been working on this for several months - the New Yorker article came out. The combination of the two led to the almost daily discussion now about this case, and what happens next.

My question is why wasn't this a story back in 2004, or at least 2006? You cannot estimate what impact an earlier discussion would have had on views about the death penalty, as well as arson investigations. So while we are debating what happens next, maybe we should also be considering why we weren't talking about this earlier.

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The Judiciary committee held a hearing today on forensics in the criminal justice system. The focus was mainly on what to with the recommendations made by the National Academy of Sciences in their recent report.

One of the witnesses was the city of Houston's chief of police. In answering a question he suggested moving toward an increased use of DNA evidence. Specifically, he noted how much more reliable DNA evidence would be than fingerprints in prosecuting property crimes. He has a point - the question is whether state's will ever devote the resources necessary to processing all crimes for DNA evidence. As it stands now, "touch" DNA is almost never processed or utilized; the use of DNA is limited to serious crimes, which generally means rapes and murders. There's a backlog now - just imagine what it would be if you started routinely collecting DNA evidence.

I've written before about the increasing acceptance of the fact that fingerprints are not as reliable as people have been led to believe. There is no doubt that fingerprint identification is extremely reliable when you are comparing complete prints. The problem is with the type of prints usually left at crime scenes. If DNA was used more often we might find out just how unreliable (or reliable) they really are.

I'm sure its a long way off, but I think the police chief may be on to something; some day

there may no longer be a need to rely on fingerpints.

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