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

I really wanted to attend the annual meeting of the American Academy of Forensic Sciences last week. It wasn't just the presentations - I wanted to see the reaction to the "takedown" by the NAS report. By now everyone knows that report pointed out problems - some severe - with everything except DNA evidence. I expected an attack on the NAS report itself. Instead, it appears most agree with the substance of the report, and agree their are problems.

The them of the conference  was "Putting our house in order", which is telling. According the president-elect a nationwide critique is "long overdue". I was pleased to see that DOJ has already started funding research on fingerprint reliability and fire-debris analysis. Let's hope that  goes more quickly than the NAS report - which took almost 4 years to get out

One thing they don't agree with is the recommendation that forensic labs be independent of the police. I don't ever expect that to happen, but that was one of the more important recommendations. Too many problems arise out of close relationship between the police and the labs. That includes context bias - which is interpreting evidence in light of what you expect to find. The only remedy for that is for the scientist to have no information on the case - in other words, they won't know whether they helping or hurting the prosecution.

The jury is still out on what impact all this is going to have on criminal defendants. So far, things don't seem to have changed much. Questionable evidence is still being admitted, many times for no reason other than it has been admitted before.  It remains our obligation to challenge the evidence and educate judges on the issues. Who knows what we will accomplish if we keeping pushing.

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I don't know what to make of the Court of Criminal Appeal's decision this week to reverse Michael Hood's sentence. Earlier in the week  the court was soundly criticized for it's treatment of the affair between the prosecutor and the judge. A cert petition filed in the Supreme Court created great fodder for bloggers. As expected, Scott Greenfield, Jeff Gamso and Grits were among those providing insight. The most interesting post came from Rick Horowitz, who used a lot of **"s to avoid the censors. To me, the most interesting developments was an amicus brief supporting Hood that was filed by 21 former prosecutors and judges. I don't have to tell you how rare it is for a prosecutor to come out in support of a defendant - especially a death penalty defendant.

The Court of Criminal Appeals had done everything it could to downplay the affair; it wasn't really an affair after all, they just got together a few times. Given the court's history, the holding wasn't that big a surprise. What does infuriate me is former Judge Holland's response; she's upset that her reputation is being dragged through the mud - in her mind unfairly. The response isn't that different from Judge Keller's response to her ethics complaint - it was the lawyer's fault.

I don't know why, but it sets me off when I see double standards in play. It seems to be especially prevalent in the criminal justice system. For example, there have been more than a few prosecutors who don't mind going out and drinking to excess, and then driving home. If they get stopped, they would expect special treatment. Instead of empathizing with DWI defendants though, they come into court demanding stiff punishments and refusing to deal. Judges are no different; some get upset if they are someone in their family is treated the same way they treat defendants who appear before them.

Did Judge Holland ever prevent a prosecutor from destroying a defendant's reputation? I seriously doubt it. I also doubt she accepted the all too common excuse that someone else was to blame for their conduct.

The underlying problem in all this is that some in the criminal justice see defendants as different than them. They also may believe they would never be in that situation. In other words, its us versus them. When you see someone as different its easy to treat them badly - you don't even give it a second thought.

I've said before that I sincerely believe we will be judged by how we judge the least among us. Many problems with our criminal justice would be solved it we viewed criminal defendants as our neighbors. Granted, they may have made mistakes, and done some bad things. But so have we all.

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If you are indigent you are entitled to an appointed lawyer and free record on appeal. Sometimes there is an issue of whether the defendant is truly indigent. That was the situation in a recent case out of the Texas Court of Criminal Appeals - McFatridge v. State.

The defendant was convicted of DWI, and requested an appointed attorney to pursue the appeal. The court reporter challenged the indigency affidavit, claiming the defendant had enough money to pay for the $3,000 record. The contest was based on a conversation during trial where she claimed the defendant offered to trade antiques for a copy of the record. (can you guess where this comes from?)

After conducting a hearing the trial court determined the defendant had real property worth $6,670 and personal property worth $3,000 (i.e. the antiques). The court of appeals affirmed that decision, finding the defendant failed to rebut the evidence of indigency. In doing so, the court found that although there was no evidence of what the cost of an appeal would be, it shouldn't exceed $6,670.

There are several interesting things about this case. One is where the court came up with a reasonable fee for a DWI appeal. I'm not sure when the last time any judge on the Court ever handled a defendant's appeal, so where that comes from certainly isn't personal experience.  Might some lawyers agree to handle a case for that amount - maybe so. But to obtain representation,they are going to have to exhaust all their assets. Should we require defendants to do that?

The second unusual fact about this case is that it started with the court reporter. Normally it's the court that contests indigency determinations. Here, the court reporter initiated the process - was it to make sure she got the furniture?

Norm Pattis has started a discussion on a universal defender system. I think there is a lot of merit in that. There is no doubt that the middle class cannot afford lawyers for serious crimes. If they can afford a lawyer to represent them at trial, few have any money left to pursue an appeal. Not only do you have to pay a lawyer to handle the appeal, you also have to pay the court reporter. No one should have to choose between appealing a conviction and exhausting all their assets.

The criminal justice only works if you have access to it. I'm not sure you can say Ms. McFatridge truly had access to the justice system - there  has to be better way.

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Many defendants are surprised to learn about the law of parties. The law of parties assigns guilt if you don't directly participate in the offense. Basically, if you do something to aid, encourage or assist the commission of the offense you are guilty. The classic example is the getaway driver in a bank robbery - even though they don't go inside, they are still guilty.

The law of parties is usually fairly straightforward. Of course, any time more than one person is involved there is a potential for problems. The Court of Appeals in El Paso recently addressed one of the problems in State v. Andrew James Cotto and Robertor Corral. The two defendants had been charged along with Joseph Jones with manslaughter. The evidence was that Mr. Corral and Mr. Cotto held the victim down, while Jones strangled him. Mr. Jones went to trial first, and was found not quilty. Although the medical examiner initially testified the death was caused by strangulation, he also testified that asthma or some other respitory condition could not be ruled out as a cause of death.

As you would expect, Mr. Cotto and Mr. Corral were probably pretty happy. They filed a motion to dismiss the charges against them. The legal basis was that the cause of death had already been decided against the State, and therefore the docrtine of "colleteral estoppel" prevented the State from re-litigating the question. Sounds pretty good - and makes sense.

The problem is that the Texas Penal Code - section 7.03 - addresses the issue, at least in part. The state says that  the acquittal of the person for whom you are criminally responsible is not  a defense. In other words, the fact that the bank robber is acquitted doesn't mean you can't be prosecuted.

I won't go into the legal basis of the decision, because it involves fairly complex (and boring) aspects of colleteral estoppel law. The bottom line is that the State can get 3 chances in this case. They didn't get the person who actually choked the victim - now the get to go after the person who held him down.  Maybe they will get at least one out of the three.

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Mark Bennett has gone on the warpath against the practice of ghostblogging. His criticism of the "social media" is nothing new - he even started a blog devoted to it at Social Media Tyro. I must admit -until last week I ddn't even know there was such a thing as ghostblogging. I was quite surprised - for a number of reasons.

Since it seems to be a fairly common practice, I wanted to make sure everyone (all 4-5 of you) know that I write this myself. I probably don't need to say anything - you probably already figured out no one would pay for this. But I'l go ahead and claim the credit - everything on here is mine.

What surprises me about ghostblogging is why anyone would do it. I'll admit that when I first started blogging I was hopening to get marketing benefit from it. I wouldn't have done it if I didn't like to write and share information. For the same reason I write articles and lecture at CLE programs. I can't say that I've seen much benefit from a marketing standpoint - probably because I haven't made that a focus. I have enjoyed doing it though - and I think it's been a benefit to me. If I hadn't started blogging I may have never even heard of Mark Bennett.

What I don't understand is how ghostblogging jibes with the whole theory of social media. From what I have read, the idea of blogging is to give clients an opportunity to see how you think and what you know.  Aren't you misrepresenting yourself when you use a ghostblogger? You may think you are reading the thoughts of a brilliant lawyer, when in fact they are bumbling idiot. It reminds me of the stories of people who put up someone's else picture on dating sites - big surprise when they actually meet. Imagine the client reading the work product of a lawyer who has used a ghostblogger.

So I quess we now have one more way to decieve potential clients. I love the internet and all the information available to us - but at the same time, you have to be careful what you believe. All I can do is assure is that here you are getting my thoughts - for whatever they are worth.

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