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

Scott Greenfield recently talked about a case in Missouri where a defendant was finally released after they concluded State officials didn't have jurisdiction to prosecute the burglary of a  post office. Unfortunately, it took the State more than 15 years to recognize this - oops. Unfortunately, the situation is not that uncommon. Everyone dropped the ball, starting with the prosecutor and the defense lawyer. What caught my attention was not the facts, but how relief was ultimately obtained.

Like many inmates, the defendant, he filed his own writ of habeas corpus. We see defendants challenge jurisdiction all the time - generally it's completely frivolous; such claims are often made by people who don't believe the government has any authority over them. To his credit, the judge who received the writ recognized it might have merit. He decided it needed to be developed further, and appointed a lawyer to do so - and here's what caught my attention. He appointed the lawyer to do it pro bono. How nice of him!

I'm sure the judge believed the lawyer would be happy to help right such an injustice - and maybe get a little publicity out of the deal. To her credit she took the case, and obtained the defendant's release - which I will admit is rewarding beyond any financial compensation you could receive. That's not the point though. My question is why does always fall to the defense bar to be ones who have to sacrifice?

For years death penalty appeals were handled by lawyers without compensation. Lawyers volunteered to handle those cases because they couldn't stand by and watch someone executed without a lawyer. It seems basic, but it never bothered judges, prosecutors or legislators. They were fine with it - which always made me wonder how much of a conscience they had. In Catholic Church terminology I wondered whether they had a "well formed conscience". Fortunately that's changed, and at least appointed lawyers are now provided - even if the quality is not always that great.

My question is why doesn't anyone else bear this burden. The prosecutor who prosecuted a case he had not jurisdiction over still gets his paycheck. He probably even went on to advance in his career, maybe even to be a judge. (I don't know any of this by the way) So does the judge - he continued to sit over cases, and put in his time for retirement. In short there is no accountability.

I wonder how much different things would be if judges and prosecutors bore some of the burden. Why leave it all up to the lawyers - after all we have families to feed also, and employees to pay. I wonder what would happen if the prosecutor and judge had to pay the lawyer's fee? Just a thought.

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Michael Green walked out of a Harris county courtroom several weeks after spending 27 years for a rape he didn't commit. The story was a familiar - a bad eyewitness identification, disproved by DNA evidence. The story is familiar because most of the exoneration involved bad ID's. That's not surprising, since studies show eyewitness identifications are not nearly as reliable as everyone believes. You would think - or at least hope - that these exonerations would give credence to these studies, and cause prosecutors to look closely at cases that are based solely on eyewitness ID's. Well keep hoping.

There is an incredible disconnect between what people read about, and how that applies to their own life. You read about bad things happening to people, and you think nothing like that could happen to you. The same concept applies to eyewitness cases - prosecutors know about them, but they don't think it could happen in their cases. After all, the police officers they work with are good guys, and wouldn't bring a case if they aren't sure the defendant is guilty. Well guess what - the prosecutors in all the 270 plus exonerations probably thought the same thing.

I realized this when talking with a prosecutor last week about a case, where an identification was made in questionable circumstances. There were a number of reasons why the ID could be bad, which I pointed out. The response I got was - yeah but he picked him out, why would he do that if it wasn't the guy. He knew about problems with eyewitness ID's, but he was convinced they didn't apply in this case.

I'm convinced this is always going to be the case. Prosecutors want to believe victims; no one, whether it be the prosecutor or the police officer, wants to tell them they are wrong. They are willing to overlook contradicting evidence because it's just an attempt by the accused to get off. And after all, the victim doesn't have any motive to identify the accused (at least in most cases).

We need to start handling these cases differently. So far changes in identification procedures have been the primary focus, but I'm not sure that is enough. Perhaps we need to treat eyewitness ID's like we treat accomplice witnesses in Texas - require corroboration.  Instructions might be another way, as well as greater use of expert testimony.  We need to do something though, or we have learned nothing from the individuals who have been required to years of lives to bring the problem in the open.

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I've been working on a brief involving the disclosure of an informant's identity. The Supreme Court set forth the law on the issue back in 1957 - in a a case called Rovario v. United States. This post is not a discussion of the law - instead, it's a comment on how much things have changed over the years as far as the attitude of the courts goes.

I have probably read Rovario at least 10-20 times over the years - if not more. No matter how many times you read something you can always learn something new, and that was certainly the case for me. Here are two passages that jumped out at me:

The fact that petitioner here was faced with the burden of explaining or justifying his alleged possession of the heroin emphasizes the vital need for access to material witnesses. Otherwise, the burden of going forward might become too heavy.

Petitioner's opportunity to cross-examine Police officer Bryson and Federal narcotics agent was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction....The was the only witness who could have testified to petitioner's possible lack of knowledge of the contents of the package that he transported from the tree to John Doe's car. The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the government to decide.

What struck me about this discussion is the underlying assumption that the defendant really was presumed innocent, and perhaps the informant could prove that. Generally, trial judges will say something along the lines of  "your client was there, so he knows who it is". In other words, we know he's guilty - how could such a witness help you. Things look completely different when you entertain the possibility that the accused isn't guilty - all of the sudden witnesses may actually be helpfully.

Earlier in the opinion the Court talked of "fundamental requirements of fairness". When you look at most of the older decisions, you often see that phrase. Unfortunately, it is noticeably absent from more recent decisions. If they mention it, it's only in passing. And it seldom means what it did back then.

Criminal trials should be about "fairness"; that means the accused should have a meaningful opportunity to defend themselves. It also means the courts shouldn't assume everyone is guilty. Maybe they aren't; if the recent history of exonerrations teaches anything  it should be that not everyone charged with a crime is guilty. There are people falsely accused. Perhaps if we did a better job of recognizing that, we could cut down on wrongful convictions. Here's for getting back to trials the true meaning of "fairness".

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