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

The ABA journal had an article yesterday about an Oklahoma prosecutor who is facing an ethics complaint for his conduct in a capital murder case. The bar association claims the lawyer used an eyewitness who he should have known was lying.  The prosecutor of course insists the witness was telling the truth, and his lawyer has complained that he did not participate in a post-conviction hearing, and therefore didn't get to tell his side of the story. (sounds kind of like a grand jury).

I don't know the facts, but I would assume they are pretty compelling. It's not easy to prove a witness testified falsely - even when they admit it. Unless you have some type of physical evidence, the court will often find an explanation for the change other than they lied. I'm guessing there must be a lot more here that I don't know. Especially since the defendant was granted relief in federal court - not exactly and everyday occurrence.

I've said before here, here, and here that prosecutors have no incentive to vet the evidence they put on. The standard response is "we'll let the jury decide". The screening process is amost non-existent; while they should weed out questionable cases - and evidence - at the outset, very few prosecutors do that. And why should they? The worst that can  happen is that they get a not guilty.

Prosecutors are almost completely immune from civil suits, which leaves only the bar to police their conduct. They have not had a history of doing so, which makes this case all the more interesting.

I have no idea what the ultimate outcome will be. However, even if no sanctions are imposed, a message has still been sent - as prosecutors are so fond of arguing. Maybe prosecutors will look a little more closely at the evidence they put out there, and think twice before calling that witness who even they have doubts about.

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Occasionally you read a decision and your draw drops; just when you think you've seen everything, you learn something knew. I had that experience earlier this week when I read the Court of Criminal Appeals decision in Niswanger v. State. It seems Mr. Niswanger was at a grocery store selling raffle tickets to supposedly benefit firefighters and soldiers returning from Iraq. The local mayor complained, so an officer went to investigate. Mr. Niswanger told the officer he had the store's permission, and after explaining the charity asked the officer if he wanted to buy a ticket. The officer asked for his identification, and as Mr. Niswanger was retrieving his license a Volunteer fire department badge appeared. The officer asked Mr. Niswanger if he was fireman, and he said he was.

So what happened next? Mr. Niswanger was arrested for impersonating a public servant. The state alleged he claimed he falsely claimed to be a fireman to dupe the officer and sell raffle tickets. The problem Mr. Niswanger had was that he had a prior criminal history, which the State of course threatened to use against him. Not wanting to face 25 years to life, he agreed to 10 years. So for carrying a volunteer fire department badge he gets to go to prison for 10 years. Talk about being tough on raffles!

Mr. Niswanger filed a writ of habeas alleging his lawyer was ineffective.  Counsel apparently agreed that he told Mr. Niswanger the state's case was "rock solid" and that he was facing a sentence of 25 years to life.  Mr. Niswanger alleged his lawyer didn't do an adequate job of investigating the case, and had he done so he would have realized that there was at least an issue as to whether selling raffle tickets was an "official act" and whether a volunteer fire fighter was a "public servant".  Here's where the reasoning goes off track. Counsel stated that there was no way to investigate the case because it was essentially a policeman said vs. defendant said case. Huh? The court accepted that explanation, explaining that given the uncertainty about what the evidence would show, and the certainty about the possible punishment, it was reasonable to advise the defendant to plead guilty.

The problem I  have with that logic is that counsel has a duty to investigate, which involves more than reading the police reports. There is no indication that counsel did that in this case. What's worse is that the failure to investigate and learn about the case is used as the  reason for recommending a guilty plea. Surely we require more from lawyers than that.

The opinion gets better, because the lawyer all the sudden is given credit for being pretty bright. Mr. Niswanger alleged his lawyer should have challenged the indictment. The Court agreed there may have been defects, but that if they were challenged the State would have just re-indicted. They ignore the fact the new indictment may have contained information that was not included in the original - e.g. the facts they were relying on to show it was an offense. The Court also assumes that if that was done the State may have withdrawn the 10 year offer - even though there was absolutely no evidence that was the case. The court also assumes the lawyer considered those possibilities, and chose not to challenge the indictment. My guess is it never crossed his mind.

The end result is that a defendant gets 10 years for something that might not even be an offense. Can anyone truly say thats fair? Of course that's not the right question, because habeas corpus is not concerned with fairness. This case shows just how hard it is to obtain relief - even when it should be granted.

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Scott Henson at Grits for Breakfast recently addressed the question of whether the Court of Criminal Appeals should be consolidated with the Supreme Court. The post actually was addressed to Florida, which is considering following the Texas model and establishing a separate court to consider criminal cases. Scott's advise - don't do it.

Scott believes the CCA has become a "results oriented" court. They decide in the State's favor, and then craft a reason to support. As he describes far better than I could:

At the CCA, often the point of their rulings seems to be affirming their activist proclivities, picking which side they think should win (the state) then constructing often strained, convoluted justifications to support their desired outcome.

Shortly after reading Scott's post I was reviewing recent decisions, and came across one that could be exhibit A for his argument. The case is Sherry L ynn Smith v. State. Mrs. Smith was charged with murdering her husband and his father - supposedly for property and money. Prior to the murder she had revived a relationship with her ex-husband, who was also charged with capital murder. Apparently not having the same feelings for his former wife the ex-husband testified against her. The capital murder charge was dismissed, and he plead guilty to tampering with evidence; his sentence - 2 years, which would run concurrently with a felony theft conviction. He had been in jail for 20 months, so basically it was time served deal. Not bad for someone facing life in prison or the death penalty.

Texas has what is called the accomplice witness rule. Basically, that means that if an accomplice testifies for the State there must be something more than the accomplice testimony that connects the defendant to the crime. Legislators apparently understood that criminals are not always honest, and might tend to fudge on the facts when it would help them out.

Generally, when two witnesses are charged with the same offense they are accomplices as a matter of law - makes sense to believe that if you are both charged with the same offense you did it together. However, the Court dodged that question - as did the trial court. The Court of Appeals looked at the record and concluded the obvious  that the capital murder charge was dismissed in return for his testimony, and therefore he was an accomplice. Why they didn't rely solely on the fact that they were both charged with the same offense is beyond me. As it turns out, that was a mistake, because the ex-husband never explicitly stated the charge was dismissed in return for his agreement to testify.

The CCA seized on that, and held that "without any concrete evidence" that the charge was dismissed in return for the testimony, the ex-husband was not an accomplice as a matter of law. Seriously.

Setting aside the question of what difference is makes whether the dismissal was in return for testimony or not - you either are an accomplice or not - you have to throw logic out the door to reach that result. What would the alternative explanation be? They made a mistake when they charged him with capital murder, and there wasn't really any evidence. Or perhaps they charged him without any evidence in order to convince him to cooperate. And then there is the actual deal - he basically got time served instead of life in prison. I don't know many criminals who wouldn't throw their own mother under the bus for that kind of deal - whether either one was guilty or not.

As Scott points out, this is not the first time the Court has abandoned logic to reach the desired result. You have to wonder whether they think people actually accept their reasoning, or maybe they just don't care. Whatever the reason, it certainly doesn't do much to repair the hits the court's reputation has taken over the last few years.

I haven't really thought about it before, but Scott may be right. At the very least, the time has come to look at whether dividing appellate review is something we want to continue to do.

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Recent advances in science have created a problem in handling old cases where faulty science was used. A problem that is if you are interested in seeking justice. Unfortunately, justice is not the primary focus in post-conviction litigation. The system is far more concerned with protecting old convictions - "finality" is the catch phrase used to wipe problems under the rug.

The problem is highlighted in Scott Greenfield's recent post about problems with the Nassau county crime lab. The problem is what to after you discover the problem. As he points out, the fact that there was an error doesn't mean that a defendant is innocent. No doubt that will be the primary argument of the DA's office. After all, you wouldn't want to let a guilty defendant go just because the lab screwed up would you?

In some cases establishing error is the equivalent of establishing innocence. If the lab says the substance was cocaine and it was actually baking soda, then the defendant can't be guilty of possessing cocaine. However, the link is not so clear in other cases. Evidence - such as DNA - might place a defendant at a scene. There may be other evidence that puts the defendant at the scene, and in those cases he would probably have been convicted without it. But what if it's an important link?

Regular readers - all 2 of them - know I have been involved in several arson cases. In those there is no doubt the evidence establishing arson was faulty. However, in most cases you can never conclusively establish innocence. If it wasn't arson, it wasn't a crime. Proving a negative is always difficult - if not impossible - to do. Just because the State can't prove it was arson doesn't mean you can prove it wasn't.  Circumstantial evidence is always an important part of those cases, and the State will still emphasize that - exhibit A is Cameron Todd Willingham.

Hopefully, the Texas legislature is going to address the problem in part by amending the writ laws. The goal is to make it easier to use scientific evidence; generally you need new evidence, and that is often  a problem when alleging faulty science. the problem that still remains though is how to establish harm. If you have to establish innocence, there will be few defendants who benefit.

My solution is to shift the focus away from innocence. Instead, look at whether there is any doubt that the defendant would be found not guilty if the current science was used. In other words, if the State didn't have experts who could testify that the fire in Willingham was arson, would he have been convicted. No matter how much Governor Perry and his henchman scream, I think everyone else agrees the answer to that question must be no.

Innocence is great if you can prove it. It's not the controlling inquiry though. Sometimes justice requires releasing those who may not be able to establish innocence; if they never would have been convicted in the first place is it really fair to make them stay in jail? I think not.

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You probably thought you heard the last of dog scent line-up line-ups right? I'm still amazed that they ever got admitted in the first place - but that's a different topic. The picture of a dog sniffing around and picking someone out is something you would only see in comics. That is of course unless it's the State, and the dogs can provide evidence of guilt.

To say that Deputy Keith Pikett and his magic dogs have been discredited is an understatement. The Innocence Project of Texas was the first point out the problems in a comprehensive report issued in September 2009 . It appears that judges finally got the message, and started excluding the evidence. Which brings us the case of Jason Smith who was indicted for murder in Ft. Bend County - Keith Pikett's home base. Not wanting to give up on a good thing, the State wanted to use scent evidence. The defense filed a motion to exclude, which was granted. Not to be deterred, the State appealed. Their argument was basically that the the same type of evidence had been challenged before and rejected, and that decision had been upheld on appeal. In other words, once admissible always admissible.

Decisions on admitting evidence are reviewed for what is called abuse of discretion. Basically, a judge's ruling is upheld if he had at least some logical reason for his holding. It's an extremely lenient standard, which makes challenging decisions regarding the admission of evidence almost impossible. The State learned this in Smith, and the Court of Appeals refused to overturn the trial judge.

What strikes me about this case is the mental gymnastics the State will go through to justify the use of evidence. To be fair, they aren't alone. Defense lawyers due it too - it's part of human nature. They occupy a different role though, because their position is not supposed to be strictly adversarial. They are supposed to operate with the goal of securing justice. Unfortunately. that often takes a backseat to the desire to win.

No one can seriously claim that dog scent evidence is even remotely reliable. It's time to give it up. Yes, it means you have to discard evidence that nails the defendant - but the problem is that might not be accurate. Find some real evidence and go with that.

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If you practice criminal defense law you are going to be the recipient of ineffective assistance claims. You may have done the best job possible, but your client is still not happy. You can't change the facts, and some are not good at accepting reality. If the client is doing time they will have a lot of time on their hands. They want out, and if they think attacking the lawyer will accomplish that, then on they go. The truth is that ineffective assistance claims are rarely successful; but that doesn't keep clients from making them.

All too often the receipt of an ineffective assistance of counsel claim turns an advocate into an adversary. I understand the emotions that can arise; you put your heart and soul into a case, and how dare they say you were ineffective. You might want to lash out - which unfortunately some attorneys do. Which brings it to the reason for this post.

One of the first things you learn in law school is that everything a client tells you must be held in confidence. You can't disclose it no matter what - and that is the way it should be. There are a few exceptions, and one  of those is when it is necessary to defend yourself against a claim against you. If a client says you never discussed probation with him, and he actually told you he didn't want probation because he knew he couldn't make it, you don't have to keep that to yourself. The question however is how much you can disclose, and when you can disclose it.

The ABA recently issued an opinion on this issue. One thing the opinion says is that a lawyer can only disclose information in a judicial proceeding - in other words, if he is testifying in court. The other is that you can only disclose what is relevant and necessary to answer the claim.

I have issues with an attorney who all the sudden becomes best friends with a prosecutor when a claim is made. Some volunteer to turn over their file - which is clearly improper. Others tell the prosecutor everything about the case - including what a worthless human being they think the defendant is (remember David Martin - Cameron Todd Willingham's trial attorney). This opinion is a good reminder that you remain an advocate for a client, even if they complain about your representation.

That said, there are some issues with the opinion - mainly because the authors don't seem to have a clue about how the writ system works. For starters, live hearings are almost never conducted at least in Texas. Instead, hearings are usually conducted by affidavits. In contested cases a judge may designate the issues they want evidence on, and direct counsel to file an affidavit. Is that consider a judicial proceeding? What about the prosecutor attaching an affidavit to their response - before the judge has ordered a response? In my opinion, I don't think that is covered.

It would have nice for the ABA to obtain input from lawyers who actually do post-conviction work before delivering an opinion. My guess is they did what they usually do, which is turn to law professors; who often have no clue about how things actually work. However, I do commend them for addressing the issue. If nothing else it reminds us that the attorney client privilege doesn't disappear just because a client says bad things about you.

All criminal defense lawyers need to read this opinion, and re-read before responding to an ineffective assistance claim. It's a good reminder that you are always an advocate for your client - even after the representation ends. The best advice you can give anyone is to not do anything in haste. Allow yourself to cool off, and recognize it for what it is - an attempt by a desperate person to gain freedom.

And by the way - if you messed up admit it, and move on. You owe the client nothing less.

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Innocence projects occupy a special place in the justice system. The most obvious attribute is that they only handle cases of actual innocence – which is a pretty small percentage of cases. They also only handle cases where someone has been convicted, and usually been through the appellate process. They all operate on shoestring budgets, and represent those who can't afford a lawyer.

I liked to believe that some degree of credibility is given to innocence projects. Since their budgets are limited, they must be extremely selective in the cases they take – and devote resources. If an innocence project takes a case, you can bet they have no doubt that the person is actually innocent. In other words, they didn't do it. Prosecutors being who they are though, they view such projects with a certain level of suspicion – and rightly so to some extent. No one expects them to jump on board simply because an innocence project is involved. On the other hand, you would expect them to treat the projects a little different from the run of the mill lawyer. After all, they don't have to represent anyone, and you don't have a right to counsel in such proceedings.

All this brings me to an upsetting post by the Florida Innocence Project. They have noticed an increasing level of opposition by prosecutors. In other words, they are fighting the cases more aggressively. Is that because they are starting to look bad? I think that is part of it; everyone has an ego, it takes a hit when you find our you are wrong.  However, A big part is also the adversary system itself - which doesn't work well in innocence cases.

By definition, the adversary system didn't work when an actually innocent person is convicted. Sometimes it's no one fault, but other times not. In an adversarial system the parties start out taking opposing positions; and most of the time prosecutors don't feel much personal responsibility. The jury is one that makes the decision, and they view their job as simply presenting the case to the jury. In innocence cases though the ultimate responsibility is on the prosecutor - while there has to be judicial determination, the position of prosecutor plays a significant role. In other words, if they oppose the claim, the chances are good it won't get granted.

All that means they shouldn't oppose an innocence claims simply because they believe that is their job. The responsibility is on them, and they have to make a decision that is often times not popular. When politics are interjected, the system is bound to fail.

We have made great strides in innocence litigation, but much remains to be done. If the actually innocent are to have any hope the prosecutors must do their part - which is to step out of their normal role. Unfortunately, it looks like this isn't happening in Florida.

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