Posted on June 14, 2010 by Walter Reaves

Why innocence shouldn't be in the hands of politicians

I'm sure it was a nightmare, and the source of more than a few sleepless nights. The lawyer's client admitted a murder - a murder someone else had been convicted of, and was serving time. For obvious reasons, the client didn't want that admission disclosed - the lawyer - Thomas O'Toole -had no choice but to maintain his client's confidence. He did that until the client was killed in prison. He was then free to tell what he knew.

Fortunately it wasn't too late. William Macumber had been charged with the murders - based on estranged wife's testimony that he confessed. Even though there was almost no supporting evidence, the case went to trial.

What happened next is a textbook example of how innocent people get convicted. Mr. O'Toole offered to testify at Macumber's trial, as did another lawyer and psychiatrist who also had been told the same thing. Even though the physical evidence was lacking, the judge refused to allow it as unreliable! So without evidence that another person confessed to the murder, the jury did what you would expect - they convicted Macumber and sentenced him to prison - where he has remained for the past 35 years.

In 2003 the Arizona innocence project entered the case, and eventually made a presentation to the Arizona Board of Executive Clemency.They unanimously recommended that Macumber be released from prison "to correct a miscarriage of justice". So far so good - all the cards to be lined up.

There was one last hurdle though - the governor, Jan Brewer. She denied the recommendation, and announced for re-election the next day. If anyone thinks the decision was based on anything other than political considerations, I have some swamp land you might be interested.

This is Arizona, so you have to expect certain things - especially when it concerns criminal justice. What  happened here though could happen anywhere. There is a huge problem with leaving innocence decisions to politicians. They will never make a decision that doesn't align with their own interests. Unfortunately, most voters don't get upset denials - they get upset when inmates are freed - even though they know nothing about the case. When it comes down to a choice between doing the morally correct decision, and the political decision, you know where they are going to come down.

As you would guess, I don't have much respect for the moral compasses of most politicians. Some  have been in politics in so long, I'm not even sure they know what is right or wrong anymore. They simply know what is politically best. Many know doubt believe the excuses and explanations they advance for such decisions. In the end, Mr. Macumber gets to remain in prison so gov. Brewer can get re-elected. And he can't even vote against her.

There has to be a better way.

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Posted on June 9, 2010 by Walter Reaves

Don't rely on the DA to do your job

I recently came across a story because it involved DNA evidence. Evidence had been tested 10 years ago, and the defendant - Stephen Meyers - was identified last year as a match. As is typical,  odds were provided - a  1 in 1.6 million billion chance that the evidence did not come from the defendant.  In preparing for trial, the evidence was retested - and guess what. That one in 1.6 million chance came true - the new tests excluded the defendant! As a result, the case was dismissed.

The case has a lot to teach us. One is that the estimates provided are just that; they are nothing  but guesses, which have no place in a courtroom. The other lesson is that you cannot simply rely on older tests - even those that are incriminating. This was not a case where there were errors in testing. Instead, it was nothing more than new and more comprehensive test. Older tests were only able to look at several locations on the DNA molecule; results were given for each location. For example a person might be a type 1.1, 1.4 at location on 1.3, 1.5 at location two. If the defendant has the same types he is excluded. Newer tests look at more locations, which makes it more precise. If the defendant is excluded at any point, then he is excluded - i.e. cleared. Obviously, the more locations you look at, the better the chance of obtaining an exclusion.

What bothers me about this case is how the new testing came about - it was initiated by the DA. The defense lawyer apparently made no effort to re-test the evidence prior to trial. Instead, it appears they were prepared to attack the old evidence. Had it not been for the prosecutor, there is a good chance the defendant would have been convicted, and in prison as I'm writing this.

In my experience, prosecutors never challenge scientific evidence. If they have a 10 year old t est, they are going to run with it. If it's going to be challenged, it is up to the defense lawyer to do it. Kudos to the prosecutor here, who wasn't willing to blindly accept what the experts told him (even if they were just trying to make the case stronger)

I realize that this is not always a cut and dried issue. If the client is guilty, a retest will only provide stronger evidence of guilt. How do you know when to retest? In the end, you have to rely on the client, and your own beliefs. If you believe they are guilty, you must make them aware of the risks. If they are consistently maintaining innocence though, there is no excuse to not do everything possible to prove that, which would involve retesting.

Before the retest there was already plenty of evidence to suggest Meyers was innocent. The description of the suspect was short, fat and balding, while Meyers was tall and skinny. Not to mention almost  no evidence to establish he was even in the same town where the assault occurred. You might thing that is enough, but I have seen far too many cases where defendants were convicted even though they didn't even remotely resemble the description provided. The explanations are usually that the victim was under stress, and that appearances change. In other words, if you are relying on a bad identification you are flirting with disaster.

Lawyers must be advocates, which means challenging all the evidence. Scientific evidence has received a free ride too long. It is up to us to challenge it. Mistakes are made, and evidence is never as conclusive as the scientists tend to believe. Don't get in the situation where you could have proved your client's innocence, and didn't do so.

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Posted on June 7, 2010 by Walter Reaves

How to know if you are a criminal defense lawyer

I am back from taking a long weekend to go bass fishing. Before I left I talked with friend who was heading to the annual Rusty Duncan Seminar sponsored by the Texas Criminal Defense Lawyers Association (who have a newly popularly elected president BTW). He was not enthusiastic - mainly because he's not too enamored with the new group of lawyers coming into criminal defense work. That got me to thinking about what it takes to be a good criminal defense lawyer - and what are the wrong reasons for getting into this type of work.

I know what is referring to. Working on post-conviction cases, as well as working with the Innocence Project of Texas, I get a chance to autopsy cases that have gone bad. Too often there was no reason for the case to end up with a guilty verdict. Sure, there are cases where the lawyer did everything possible, and lost. If that hasn't happened to you, you just graduated from law school. Many times though there was a lot that could have been. It's easy to identify the good lawyers - they are  usually the ones that tell you they are willing to do whatever they can to help, and don't mind admitting where they could have done things differently (again, if you tried a case and didn't criticize yourself at the end you just got out of law school, or never tried a case). If the lawyer tell you they did everything they could - they probably didn't.

Others have commented on the marketing push - including the need to use social media. For some, criminal defense work is an afterthought - something basically chosen by default. Their goal is to make as much as money as possible, and clients are merely an end to that. For those, I can save you the trouble. You are never going to become rich as a criminal defense lawyer.

If you have  been around for awhile, think about the really good criminal lawyers you have seen; how many of them for wealthy. Sure there are some who achieve fame and fortune, but the odds of doing that are probably less than a high school football player going on to become an NFL superstar. There are many good lawyers who make a decent living, but also many who barely scrape by.

Why is that? After all, we are always taught that hard work and expertise lead to success. I believe there are several answers - the most basic being one how you define success. As I started getting older, I realized that success is not related to your income. Rather, success is doing something you enjoy doing, and doing it well. If you don't really enjoy criminal defense - which means enjoying working with your clients - you shouldn't do it.

There are other reasons - ones I learned the hard way. Running and managing a law practice, and actually practicing law are two entirely different things. I am terrible at running a practice - which includes marketing - and for that reason have always struggled. You can't emphasize management over the actual practice of law, but you can't ignore it either. I'm still working on that.

Another reason is that good criminal defense lawyers are advocates - they don't like seeing people screwed around by the system. sometimes those people have money, often they do not. I don't know any good criminal defense lawyer who doesn't take cases from time to time for reduced fees, or no fee. They take things personally, and aren't going to stand on the sidelines. Unfortunately, your landlord, family and all the others who rely on you don't run on good intentions.

I finally came up with the answer to the question in the title. You know you are a criminal defense attorney if you would do it even if you didn't have to. If someone gave you millions of dollars today and you never had to work again, you would still go into the office tomorrow (well maybe not tomorrow, but eventually) It's in your blood, and you can't just walk away.

Sadly, I don't think there are many such lawyers around anymore. Clients have no way of determining who is good, and who is not. The often make decisions on what they read online - i.e. hype. Few good lawyers engage in such practices, although it is become more of a necessity just to survive.

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