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

Yes I know it's rude to type in all caps - but I want to make a point. One I've been trying to make for at least 20 years. There is not a week goes by that i don't get a letter from an inmate asking about time cuts. At first i thought it was just one of those rumors that circulate in prison. As the years rolled by though it became clear that it was something more than that.

Hope springs eternal - even in prison. When you pair hope with common sense, you get a creation that is immune to reality. It makes sense that if you can appeal, a court can consider everything - including the length of the sentence. It also makes sense to believe that there should be some way to reduce an excessive sentence. Sensible or not, there is no such authority.

So what are options? Basically there are no judicial options. The only option is commutation - which comes from the Governor. Despite what anyone may say, commutation is often a political decision. To obtain a commutation, you need to obtain the recommendation of at least two of the three trial officials - which are the judge, DA and sheriff. They have to agree that the sentence is excessive, and give a reason for that belief. Generally, it is something that comes out after the sentence was assessed.

So how many times would you expect the judge and DA will agree that a sentence is excessive? If you guessed almost never, you would be right. There are only a handful of commutations issued each year - and your chances of obtaining one are probably the equivalent of hitting the lottery.

The commutation process goes through the parole board, so if you want to pursue this option, you need a parole attorney. However, don't expect a good parole attorney to take your case without knowing a lot about it. They know it is the equivalent of hitting your head against the wall, and are not going to take a case unless they believe they is a realistic chance of success.

If your only complaint is that your sentence is too long, you are out of luck. The only legal remedy available is a writ of habeas corpus, and that is also extremely limited. It is only available to correct serious errors in a trial. And before you think that fits your case, that type of error also exists in only a  handful of cases.

If someone tells you to pursue a time cut - or that you can get a time - cut, you will now know that don't know what they are talking about. Spread the word.

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In this day of instaneous communication the news that the Supreme Court agreed to hear Hank Skinner's case is old news. in case you haven't heard, Skinner is sentenced to death, and has been requesting DNA testing which he claims will establish his innocence. Predicatbly, the State has opposed testing, and the courts have agreed.

I wrote before about this - in that post I compared Skinner's case with Cameron Todd Willingham, and wondered why the governor didn't learn anything from that case. You would think that with all the criticism and condemnation that case has created, you would want to avoid a repeat. Yet here we are again.

I think the vast majority of people believe that if there is evidence it should be tested. After all, what do you have to lose - other than time. If Skinner really is guilty is it all that important to execute him next month instead of next year? I understand there are some who think the process drags on too long, but look at the alternative. What if he is innocent - is speed more important than getting it right?

The only thing the State accomplishes by opposing testing is creating a controversy, and raising questions. Some will think they have something to hide - and maybe they do. Maybe they don't they grasp the concept that most of society actually believes that some people who are convicted are actually innocent. In fact, it has become common to see stories of people who have been exonerated after spending years in prison.

I realize the request in this case is being made at the last minute, and probably could have been presented earlier. Do some defendants play the system to buy time? Maybe so, but that doesn't mean they all are. Where the alternative is as final as it is here, I think you have to give the defendant the benefit of the doubt - at least where the request is not obviously frivolous.

What it really boils down to is that this is what is in the prosecutor's playbook. They have been conditioned to reject requests for testing - especially in death penalty cases. The reaction is almost automatic, and common sense is not going to get in the way. That is why it is up to the courts to occassionally legislate common sense. Let's hope they do so here.

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Paul Kennedy recently voiced his frustration about a recent trial, and wondered whether there really is such a thing as the presumption of innocence. and does the defendant really have a burden to prove innocence. I've wondered the same thing for years - and also had a recent trial experience bring that home. I have some theories I've developed over the last 28 years, which are far from scientific. Nevertheless, my observation has been that the burden of proof varies both with the seriousness of the charge, and the type of defendant. Mark Bennett was the first (at least to me) to start talking about he lizard brain, and that has helped me put a reason behind my theory.

The problem with burden of proof and  presumption of innocence is that they are concepts - they are not something real or tangible, and not something you can easily identify. Almost everyone will tell you they believe the presumption of innocence is a good thing, and that the State should be required to prove their case beyond a reasonable doubt. It would be un-American to say anything different. If you really dig though, most people have to acknowledge feeling that are directly contrary to the presumption of innocence. Show me someone who doesn't think a defendant sitting at the counsel table is probably guilty, and I'll show you someone who is lying. At the very least they believe they must have done something wrong - or they wouldn't be there. Any decent criminal lawyer knows you have to overcome those feelings - i.e. you have to prove you aren't guilty.

The difficulty in proving innocence increases with the seriousness of the crime. I think that is partly a function of our lizard brains. The more serious the crime, the less jurors are willing to gamble. They don't want to risk putting back on the street who could commit the same crime again - possibly against their family or someone they know. Although no one would ever admit it, they tend to err in favor of safety and personal preservation - in other words, if they have a doubt they aren't going to walk someone charged with  a serious crime. No where is this more in play than in sexual assault cases - especially those involving children.

I think there is something else at play also - especially in crimes with victims. Jurors - and society for that matter - want to see someone pay for a crime. Somebody has to be responsible, and if its not the right guy (or girl) that's just too bad. This is something I believe you have to overcome in cases like murder - especially if the victim was someone who jurors respect and like. Unless you can  prove somebody else did it, your chances of winning are slight.

I handle a lot of appeals and post-conviction cases - that includes more than a few innocence cases. There have been more than a few cases I've looked at and wondered how in the world the jury could have convicted the person. Most of the time I think it was nothing more than the defendant couldn't prove someone else committed the crime.

Prosecutors are fond of talking about how difficult it is to overcome of the presumption of innocence, and what  a high burden they have. If the burden was really that high, the would lose a lot more cases. In reality, a guilty verdict is a function of how convinced jurors are, and how willing they are to risk making a mistake - i.e. letting someone who might be guilty go free.

There's something else that's play in any case - and which can trump the above factors. That is the defendant. The more the defendant is like the jurors, the more likely they are to accept his story. Put another way, if the jury likes your client you have a chance. If you  have a celebrity client you are way ahead of the curve - if you have any doubt, look at O.J. Why that is I have no idea - especially since most people don't think celebrities rank high in the integrity category.

Scott Greenfield recently asked if  police officers are accorded special treatment by jurors - and judges. Again, that is a class of people jurors look up to. After all, you learned at an early age to respect police. I think he is right because they start off ahead - jurors want to believe them, and are willing to accept what they say.

So what does all this mean? It would be nice if jurors recognized these tendencies, but that is probably too much to expect. At a minimum, lawyers must be aware of them so they can attempt to deal with them. 

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Paul Kennedy recently voiced his frustration about a recent trial, and wondered whether there is such a thing as the presumption of innocence. and does the defendant really have a burden to prove innocence. I've wondered the same thing for years - and also had a recent trial experience bring that home. I have some theories I've developed over the last 28 years, which are far from scientific. Nevertheless, my observation has been that the burden of proof varies both with the seriousness of the charge, and the type of defendant. Mark Bennett was the first (at least to me) to start talking about he lizard brain, and that has helped me but a reason behind my theory.

The problem with burden of proof and presumption of innocence is that they are concepts - they are not something real or tangible, and not something you can easily identify. Almost everyone will tell you they believe the presumption of innocence is a good thing, and that the State should be required to prove their case beyond a reasonable doubt. It would be un-American to say anything different. If you really dig though, most people have to acknowledge feelings that are directly contrary to the presumption of innocence. Show me someone who doesn't think a defendant sitting at the council table is probably guilty, and I'll show you someone who is lying. At the very least they believe they must have done something wrong - or they wouldn't be there. Any decent criminal lawyer knows you have to overcome those feelings - i.e. you have to prove you aren't guilty.

The difficulty in proving innocence increases with the seriousness of the crime. I think that is partly a function of our lizard brains. The more serious the crime, the less jurors are willing to gamble. They don't want to risk putting someone back on the street who could commit the same crime again - possibly against their family or someone they know. Although no one would ever admit it, they tend to err in favor of safety and personal preservation - in other words, if they have a doubt they aren't going to walk someone convicted of a serious crime. No where is this more in play than in sexual assault cases - especially those involving children.

I think there is something else at play also - especially in crimes with victims. Jurors - and society for that matter - want to see someone pay for a crime. Somebody has to be responsible, and if its not the right guy (or girl) that's just too bad. This is something I believe you have to overcome in cases like murder - especially if the victim was someone who jurors respect and like. Unless you can  prove somebody else did it, your chances of winning are slight.

Much of my work involves appeals and post-conviction cases - that includes a fair number of innocence cases. I've looked at more than a few cases and wondered how in the world the jury ever convicted someone. In most of the cases I think it was nothing more than the defendant couldn't prove someone else did it.

There's something else that's play in any case - and which can trump the above factors. That is the defendant. The more the defendant is like the jurors, the more likely they are to accept his story. Put another way, if the jury likes your client you have a chance. If you  have a celebrity client you are way ahead of the curve - if you have any doubt, look at O.J. Why that is I have no idea - especially since most people don't think celebrities rank high in the integrity category.

Scott Greenfield recently asked if  police officers are accorded special treatment by jurors - and judges. Again, that is a class of people jurors look up to. After all, you learned at an early age to respect police. I think he is right because they start off ahead - jurors want to believe them, and are willing to accept what they say.

So where does that put us? It certainly isn't impossible to win a criminal trial - but it's also not as easy as the State would want you to believe. They often talk about the high burden they have to overcome. In realitiy, in some cases it is the defendant who has the burden - despite what the law says. It would be nice if jurors recognized these tendencies, but that is probably way to much to ask. Lawyers have to recognize them - if you don't, you don't have a chance.

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