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

in the past several years we have become used to seeing reports of inmates who were released and exonerated after spending years in prison. The most recent was Johnny Pinchback in Dallas. Most of those cases – as was Pinchback – were the results of DNA evidence. Far more rare are the cases where there is no such evidence to conclusively prove innocence.

Years ago an exoneration for actual innocence was almost unheard of. Cases were few and far between. One of the first was out of Texas – Randall Dale Adams. Many simply know that case is the result of the film The Thin Blue line.Adams was convicted in 1977 of killing a police officer. He was released from prison in 1989, largely due to the efforts of a filmmaker who took an interest in the case, and the work of a lawyer who never gave up. They were finally able to establish that the real killer was the person who testified against Adams at trial. The speculation was that prosecutors went after Adams because he was eligible for the death penalty, whereas the co-defendant was not because he was only 16 at the time.

The case of Adams has long been an inspiration to me. Although I had already been out of law school for almost 10 years when he was finally exonerated, I knewf that's what I wanted to do. My idea of a lawyer was someone who pushed back against the system, and took on cases like that. The ability to undo an and injustice – especially one that was the product of blatant misconduct – was the epitome of a lawyer. So it was with sadness that I saw today that Randall Dale Adams diedin October 2010. Perhaps it was reported at the time, or more likely not. I only saw it because of an article in the New York Times on Sunday, by reporter Douglas Martin.

Randall Dale Adams most likely died in obscurity, which is probably what he wanted. It's a shame though that more people don't know about his case, and what he went trhough. I would imagine there is a whole generation of lawyers who have never even heard the name. That's a shame, because it's an important piece of history every lawyer should know.

Rest in Peace Randall Adams - you certainly deserve it.

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The Supreme Court decided today a case that is being is widely praised by criminal defense attorneys. The decision in Bullcoming v. New Mexico held that blood test results are not admissible without  the testimony of analyst that conducted the test. Bullcoming was involved in a traffic accident and suspected of being intoxicated. When he refused a breath test, they obtained a warrant and took a blood sample. That sample was tested at the State lab by gas chromatography, and the results used to prosecute him for driving while  intoxicated.

When it came time for trial the State announced that the analyst who did the testing was not available because he had been placed on unpaid leave. A supervisor was allowed to testify in his place. The issue before the court was whether Melendez-Diaz would apply to testimony about such reports. The New Mexico courts  held the report was testimonial, and therefore the confrontation clause applied. However, they held the analyst was nothing more than a "scrivener" who wrote down the results. They also held the supervisor's testimony was sufficient because he testify about the machine and its operation.

A majority of the Court - led by Justice Ginsburg - held the supervisor's testimony was not an adequate substitute for the analyst who actually performed the test. In doing so, they recognized that scientific testing involves more than simply reading the results of a machine. The results are only as good as the data going, and the process followed. That may not be revealed in the raw data.  The court noted several studies that show the majority of errors in testing are the result of human error.

The court definitely got this one right. If the results of a scientific test are going to be used to take away someone's freedom, they need to be scrutinized. That can only be done by competent counsel, who knows the questions to ask and what to look for. A supervisor cannot answer those questions, and cannot ferret out problems simply by looking at the results.

Perhaps the court's decision is based on a recognition that forensic science is not as infallible as the scientists would like to believe. There certainly has been increasing recognition of the problems in this area. As long as forensic science is used in criminal trials it must be subjected to strict scrutiny. This opinion is good step toward that.

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I was in court recently and observed a plea in a sexual assault case. The plea was for a low sentence - which is unusual. Before accepting it, the judge asked the prosecutor if the victim and their family had been consulted, and made sure they agreed with the recommendation. I'm not sure what would happen if they had not been, but obviously the judge wanted to make sure the victim was satisfied with the outcome.

 Others have written about this (you'll have to find them on your own), and have expressed the issues this raises far more eloquently than I can. All I can do is rant. The fact is, the criminal justice system is not in the business of making people happy. There certainly is no concern for defendants. Why should victims be any different. They have a personal interest in the case, and those closely connected anything are the worst persons to consult. There is no way they can be objective, and trying to cater to their interest is often impossible.

 What bothered me about this though is the hypocrisy in such concern. Perhaps the judge was truly concerned about the victim. Perhaps he simply wanted to appear concerned, since that is what judges are supposed to do. The fact is that judges and prosecutors are only concerned about victims when it fits their agenda. How many times have people been prosecuted over the objections of the victim. In this case what if the victim had been consulted and told the judge they didn't agree with what was happening – they thought the case should be dismissed. Do you think those concerns would have been honored?

The fact is prosecutors and judges have to run for election (at least in Texas). No one gets elected by catering to defendant's. Instead everyone wants to be as hard on criminals as possible. That system is designed to fail. Maybe I'm being overly cynical, and I concede the possibility. After all, judges and prosecutors do see terrible things every day - and terrible. It's easy to stereotype, and assume everyone is the same. Criminal defense lawyers are not immune from that. It's a struggle to evaluate each case, and each defendant, on their own, and not burden them with the misdeeds of others.

So what's the answer? I don't have it. But a good start would be doing away with the concept of "victim's rights" unless you truly want to apply it across the board.

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Every lawyer has had those clients who seem to be incapable of making good decisions. Almost by definition, the people we represent are not the best decision-makers. It's generally bad decisions that bring them to our office. However, once they are in trouble, most people are able to evaluate their options – with the help of counsel – and make a reasonably informed decision. Some cannot do that, and despite the lawyer's best efforts, do everything they can to sabotage themselves.

I recently saw an article about a case which demonstrated this in textbook fashion. The defendant was charged with bail jumping. He was not a rookie in the criminal justice system, and had several prior convictions. That qualified him as a career offender, which meant his punishment range could be 25 years to life. Despite that, the state offered 18 months in a state jail. He refused, and went to trial. There didn't appear to be much of the defense, which there seldom is in those cases. You either showed up when you were supposed to or not, and there are not many good reasons to not show up. Predictably he was convicted. Even after that, the state still wanted to deal; They offered 15 years, which he also refused. The end result was 32 years in the Texas Department of criminal Justice.

I don't know all the facts, but no matter what they are this demonstrates a problem lawyers face regularly. The decision to plead guilty is one of those that is entirely up to the client – and that is how it should be. The lawyer doesn't have to do the time, so he shouldn't be making the decision. All we can do is provide the best advice possible, and try to guide them in their decision. We often may not agree with, but it is the clients to make. I've had clients who I begged to take their case to trial, but they didn't want the risk. On the other hand, I've had more than a few clients like this who should have taken the state's offer. That process works reasonably well in the vast majority of cases. But there are a few where you have to wonder if there isn't a better way – this being one.

The test for competence is extremely low; if you know what a lawyer does, and know what you are charged with, you are probably competent. Competent doesn't mean you are smart, just that you basically understand what is happening. Perhaps there should be a separate test for competence to enter a plea. If every lawyer on the planet, along with the majority of the population would counsel a plea, isn't there something wrong with someone who goes against that advice?

I realize that the ability to make a rational decision has absolutely nothing to do with competence in the legal sense. I also realize there is probably nothing we can do. But it is still distressing to sit by and watch someone throw away their life, when that is what you know they are doing. Despite the press, most lawyers truly care about their clients, and want what is best for them. That's why I lot of us went into criminal defense work . Unfortunately that's the price of being a criminal defense lawyer. Something they never tell you about in law school.

I suppose you can rationalize this by arguing that we  have to allow people the opportunity to make their own decisions - good or bad. We certainly can't force decisions on people in most cases - even when we think that is what's best. After all, we aren't always right - at least I'm not.  So in t he end, this probably nothing but a rant. But then why else have a blog?

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the The Houston Court of  Appeals recently granted relief in another case - The State of Texas vs. Terry Golding. The defendant had plead guilty to driving while intoxicated and unlawfully possessing a firearm. At the time – 1994 – he was a lawful permanent resident. No one told him that the convictions might impact his immigration status, and shortly after Padilla was decided he filed a writ of habeas corpus claiming his plea was involuntary for that reason. The trial court agreed, and recommended that relief be granted.

One of the big issues in the case was whether the defendant was adversely affected. The state argued that he suffered no collateral consequences from the convictions because he had not been deported, nor was he arrested or incarcerated The court rejected that argument, holding it was sufficient to show that he had been denied the opportunity to apply for naturalization, as well as the possibility that he could be deported in the future.

 The state also argued that he waited too long - laches - which was also rejected.

 This case is significant because it establishes that a defendant does not have to wait until something bad happens to challenge his plea. It also shows how much power and discretion trial courts have. Here the judge entered findings that supported the grant of relief. As long as there is some evidence to support those findings they are almost unchallengeable. Had the judge found relief was not warranted, the result would have no doubt been different.

With that said, the lawyers apparently did a great job of presenting evidence to the judge. They established through trial counsel that Golding was not advised about potential immigration consequences. They also presented evidence from an immigration on the effects of such a plea, as well as presented letters of recommendation that could be filed to support his application for citizenship.

This case also is a blue print for lawyers on what they need to do - which depends on the facts of the case. Here the consequences of a plea were automatic, so the defendant had to be advised of those consequences. In those cases it is not sufficient to simply advise a client that a plea "might" result in deportation or other negative consequences. That places the burden on the lawyer to either know some basic immigration lawyer, or consult with someone who does. Many lawyers are not happy with that added responsibility, but it is something you must accept if you want to be a criminal defense lawyer. After all, if you don't tell your client what might  happen, who will?

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It's no secret that I cannot stand Rick Perry, and it has nothing to do with his political affiliation. It has everything to do with his handling of the Willingham case. As long as I live I will never forget the words of the unlucky staffer who got to tell me that the execution would not be delayed - "because the governor saw no reason to postpone" it. Really??? The fact that we presented him with evidence that there was no crime - and therefore he couldn't be guilty - is not a reason?

I've often wondered what it is like to have to live with a decision like that. Apparently if you have no conscience it's no big deal. I'm sure Gov. Perry never lost any sleep over it - unless it was worrying how it affected public perception. I thought that was bad enough, but then he went on the offensive when questions were raised through the Forensic Science Commission. Not only did he insist on Willingham's guilt, he successfully derailed the investigation - something I've written on more than I probably should.

So with that background it was more than I could handle to hear about Gov. Perry's call for a day to pray for America. I'm sure it's just a coincidence that he recently admitted what everyone already knew - he wants to president. So he has graciously invited other governors to join him.

I know others have issues with the promotion of religion. That's not what bothers me though. Faith is extremely important to me, and something I try to live out. Maybe that's why it infuriates me to see people (i.e. politicians and public officials) wrap themselves in faith. They do it hoping to garner votes and support. To me there is nothing more despicable than using faith to secure your own goals. True faith is the exact opposite - your wants and desires are secondary.

I also find it  maddening that Gov. Perry says we need to pray for forgiveness - not that I don't believe that. I just don't believe he has any intention of actually doing it. If so, how about forgiveness for executing an innocent person, and using faith to get yourself elected president. Of course what he really means is everyone else needs to pray for forgiveness.

My only hope is that he will follow the paths of others who have tried to convince use what great people of faith they are. Witness the recent downfall of Jim Tressell and indictment of John Edwards. Perhaps it will catch up with Gov. Perry in the same way.

I'm sure there will be a big turnout for this event - after all, who wants to oppose prayer? I'm also reasonably sure (or at least hopeful) that everyone will see this for what it is - the start of the campaign for president.

And by the way. In almost every church I have been in over the last 10 or so years (and maybe longer - that's just the extent of my memory) religious leaders have been praying for our nation and our elected officials. We don't know a presidential candidate to tell us we need to do it.

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