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

The Texas Court of Criminal Appeals decided an unusual writ case last week, which contains some disturbing admissions - at least they are disturbing to me. Hector Medina was appointed extremely competent lawyers to pursue an application for writ of habeas corpus in his death penalty case. His lawyer made a tactical decision to submit a cursory writ, which was only four page long. His reasoning - which I don't fully understand or agree with - was that he wanted to change the pleading rules in habeas cases.

The court recognized the writ was not complete, and there was probably a lot more there. However, they couldn't decide what to do. If they denied the writ then Mr. Medina had lost his chance at relief through post-conviction proceedings. They couldn't force the lawyer to re-file, nor could they find him ineffective because they have already held that there is no right to effective assistance in a writ proceeding. So they came up with a new approach - they found the writ was not a "cognizable writ application", held the lawyer in contempt and appointed new counsel.

All that's fine and good - at least Mr. Medina is not going to be executed without having presented a complete writ application, which the Court will probably deny. The disturbing part comes in the dissent of Justice Keasler, which points out that the application in this case is no different from others they have denied on the merits. He noted that during his time on the court he had seen a number of applications that were just as poorly prepared as this one, and they were all denied.

The disturbing part of that statement is that he acknowledges the Court knows they are denying relief when they know one someone has not been properly represented. Since you don't have the right to effective assistance, it's too bad. To me that is inexcusable.

If you are going to execute someone you should only do so after their case has been fully reviewed. Yet the court is affirming death sentences when they know the person's case is not being fully reviewed. While you would hope all lawyers would take their jobs seriously the said fact is we know they don't. The court shouldn't be able to pass the buck, and say "that's not my job."  I would like to think this is a step toward that, but I'm not convinced.

If nothing else, this should show just how screwed up our death penalty system is.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It's no surprise that legal terms and phrases seldom mean what you would expect them to mean. Nowhere is that more apparent than in the definition of deadly weapon.The Texas Penal Code defines deadly weapon as anything that in it's manner of use or intended use is capable of causing death  or serious bodily injury. You don't have to to actually cause injury. Instead, the focus is on the intent, and the manner in which something is used. That all makes sense, until you see how the courts have applied it.

Over the years, the definition of deadly weapon has been expanded. Courts now hold that anything can be a deadly weapon. That was apparent in the recent case of poor Prisscilla Mechell. She was charged with aggravated kidnapping, injury to a child, and abandoning a child. The facts were that she took a baby from a friends house, and ended up leaving the child in a dumpster where she was later found. Although the child was severely dehydrated, there were no serious or permanent issues. The issue in the case was whether the dumpster was a deadly weapon.

The court had little trouble deciding that it was. The court found that the defendant used the dumpster to hide the baby, and that in doing so there was the possibility that death or serious bodily injury could result. While I'm not surprised,that seems to me to be a totally unwarranted expansion of the definition.

When you think of deadly weapon, you envision something that is actually used to inflict injury. The dumpster in this case was not used to inflict injury. It was the act of abandoning the child that  caused the injury, and the dumpster was simply the place where he was left. Under the court's logic, any place the child had been left could be a deadly weapon. I suppose that if a parent runs off and leaves their children for an extended period of time, their house then becomes a deadly weapon.

The reason why a deadly weapon finding is important is because it increases the time a person must serve before they're eligible for parole. In some cases it also increases the grade of the offense, so it is an important finding. If you want to punish some offenses more severely that's fine. But engaging in mental gymnastics and legal fiction is not the way to go. It's time to return some common sense to the legal system, and this would be a good place to start.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

If you read this blog you know I'm not a big fan of the way forensics is used in criminal cases. Many of the problems are the result of using techniques and processes that were not designed for determining a person's guilt or innocence. Another problem is that the scientific method does not parallel a criminal trial.

Under the scientific method you develop a hypothesis, and then try to prove it wrong. In most criminal  cases it is the opposite. You try to prove someone is guilty, even if there is evidence to the contrary.

What made me think about this a decision out of New Hampshire (New Hampshire v. David McLeod) criticizing John Lentini, one of the leading arson experts in the country. Mr. Lentini's position is that you should start off with the presumption that the fire was an accident. He has a couple of reasons for that. One is that most fires are accidents. The more important one is that everyone is presumed innocent, so shouldn't you follow that in an investigation. The New Hampshire Court didn't like that approach, and prevented  him from testifying.

The decision tries to portray Mr. Lentini as having an agenda - which he doesn't have. He has a presumption. What is the alternative - that you go in with an open mind - that's contrary to the scientific method, which the court believes it is following.

The problem with Mr. Lentini is that he's honest. He's admitting how he approaches the investigation. Those on the other side are not going to admit they assume the defendant is guilty, because that wouldn't look fair. Instead, they claim they will start of neutral.

The court relies on NFPA 921, which is the National Fire Protection Agency's guide to fire investigation. There's nothing wrong with that, and in fact it should be accepted - as long as you except everything in it, and not merely that which supports your position.

The NFPA calls for a systematic approach, and the court equates that with the scientific method. While that's part of it, so is testing a hypothesis, which you can't have if you are neutral. The end result in an arson case is that it was either an accident or arson. If you cannot disprove it was an accident a defendant should not be found guilty.

I don't know if the scientific method works or not in criminal cases. You are not dealing with absolute truths like you are in science. Instead, you are dealing many times with possibilities - what is more likely. Yet science still must play a role. If it is going to be the determining role - as it is in arson cases - I think fairness dictates Mr. Lentini's approach. Unfortunately, since that approach makes it more difficult to obtain a conviction, I doubt the court's will agree.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I recently commented on the release of Michael Morton after DNA evidence established another person's guilt. DNA evidence that John Bradley called a waste of time, and opposed. As I wrote that, the Court  of Criminal Appeals was issuing an order declaring Mr. Morton actually innocent. They did soextremely quickly, and there's a story behind that.

It turns out that Mr. Bradley filed a request for an expedited decision. He was clearly concerned about Mr. Morton being cleared so he could obtain compensation - at least that he said.  As you can probably guess, there's more to the story.

There was an agreement that Mr. Morton's lawyers could pursue discovery until the final order was delivered - discovery aimed at uncovering who did what, and who knew what. They believed they had at least 30 days to do that, and probably would have in most cases. By obtaining an expedited ruling they short circuited that process, before it even started. What will  happen with the investigation is now up in the air.

So did they take this action out of concern for Mr. Morton, or as a strategy to ensure that the truth remain the hidden? If I had to bet I know where I would place my money.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The Court of Criminal Appeals apparently moved Michael Morton's case to the head of the line and granted relief yesterday. While Morton may be out and waiting on his compensation check, it does not look like  his case is going away anytime soon. The Innocence Project of New York appears to determined to find out who knew what, and a lawsuit may be in the near future.

What we know so far is that evidence pointing to someone else was not disclosed. Who did what is not clear, and as you would expect everyone is probably going to point the finger at someone else. We also know that Mr. Morton would have been out several years ago had John Bradley not fought DNA testing so aggressively.

This is not the first instance of a prosecutor being caught hiding evidence. I've commented before (here, and  here and here)about the lack of incentives for prosecutors to hand over exculpatory evidence. If they don't the worst that happens is that the conviction is reversed. Even if that is far from certain though. Sanctions from the bar are not  a real possibility, and they have immunity so you can't sue them. They are elected officials, but in the past voters  have not seemed to care. I wonder if that might be changing.

Thanks to Scott Henson I saw an editorial in the Williamson county paper - Mr. Bradley's home town. John Bradley has been there forever - first as an assistant, and then a District Attorney, so I imagine his support his fairly solid. That did not keep the paper from criticizing him though:

 Mr. Bradley should feel ashamed. His efforts to stymie DNA testing, along with his refusal to hand over exculpatory documents to defense attorneys, may have had consequences far beyond the wrongful conviction of Michael Morton. 

An unnamed man's DNA is now connected to two remarkably similar murder scenes within miles of each other: Ms. Morton's in 1986 and Debra Baker's in 1988.

That mystery man, a violent criminal who may still be at large, may have had many more chances to kill again as Mr. Morton languished in jail. That is a terrifying thought.

Still, Mr. Bradley seems more interested in protecting his reputation than in bringing the real killer to justice.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Given the general stance of the legislature on criminal justice issues it might surprise you that they enacted some changes that are actually beneficial to those who have been caught up in the criminal justice system. One of those areas is Expunction, which addressses those situations where someone was arrested but the charges were either dismissed or never filed.

There have been problems in those situations where a person is arrested and charges are never filed. The courts have required individuals to wait until the statute of limitations expires before applying for an expunction. In cases where there is no statute of limitation - such as murder - you could never have your record cleared. There are also charges with lengthy statutes of limitation, such as most sexual assaults.

The legislature basically set up waiting periods: 180 days for a Class C misdemeanor, 1 year for Class A & B misdemeanors, and 3 years for felonies. The burden is on the applicant to prove that they were released, and that charges are no longer pending.

As you would imagine, the legislature is not going to tell the State to close their file and destroy all the records The order granting expunction must authorize the State to retain their records and files.

Another change is what can be termed a discretionary expunction. Previously, any agency listed in the petition could oppose it. DPS did that fairly regularly, which is why a lot of expunction cases have the Texas Department of Public Safety as a party. Under the new statute the prosecutor can agree to an expunction. Of course, a court must still sign the order, and might refuse to do so if there is opposition. This change could be significant in those cases where it is obvious no charges should  have been filed, and the individual should not be forced to wait.

One other change removes the restrictions on prior felonies. Previously an individual could not receive an expunction if they had been convicted of a felony within the previous 5 years. That has been removed.

There is no doubt these changes are positive, and are going to allow a significant number of individuals to obtain expunctions who otherwise could not do so, or would  have to wait for significant periods. If you are a lawyer, get ready for the questions; or even better, let your clients who qualify know they can now get some relief from the arrest that has been following them around.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

We all make mistakes - especially when we are younger. Most of time you are able to learn from them and move on. Sometimes though the mistake may haunt you for the rest of your life. Criminal convictions fall into that category. Even though you may have been a model citizen for 30-40 years you are still labeled by your prior mistakes.

Over the last few years lawmakers have recognized how unfair that can be - probably because they knew people who were effected, including their own families. Several years ago Texas recognized a new procedure, where you could obtain an order sealing your record in some cases. The procedure is called "Non-Disclosure", and is limited to those cases where a person received deferred adjudication, and successfully completed it. While some doubt how effective that process is, it is certainly better than nothing.

Even if you receive a non-disclosure you still  have the case - the arrest itself while sealed, may still be a liability. Now there is new option for persons who successfully completed a deferred adjudication - a pardon. The legislature amended Art. 48.01 to allow persons who completed their probation to receive  a pardon from the governor.

To be eligible for a pardon you must wait 10 years after the date of discharge. That means you start counting when your supervision ends. The pardon application must be submitted to the Board of Pardons and Paroles, who will make the recommendation to the governor. For a checklist of how that operates - which has not been amended - you can go here.

I believe this a significant change, and one that is positive. The ability to obtain a pardon is close as you are going to get to clearing your record. Not surprisingly, I have heard the governor's office is expecting an avalanche of applications. I have no reason to believe they won't be seriously considered, since this was something supported by Governor Perry.

If you qualify, why not apply.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Those of you who followed the Willingham investigation probably remember that a judge started to hear testimony in a Court of Inquiry proceeding. A motion was filed to stop the hearing, which was ultimately successful. That motion was filed by R. Lowell Thompson, the Navarro County District. The end result was that witnesses who were scheduled and ready to testify never had a chance.

When combined with the actions of the Forensic Science Commission the goal of scuttling any inquiry into the investigation has been successful. There still  has never been a hearing addressing the validity of Dr. Hurst's initial report, and there likely never will be. No matter what your position on the case is, I would think that is worrisome.

While I can't say that much surprises me about this case anymore, I was surprised when I learned that the Texas District County and Attorney's Association gave an award to Mr. Thompson at its annual convention recently. Normally, people get awards for doing positive things. Mr. Thompson got an award for derailing an investigation aimed at finding out what really happened. He was surprised, and so am I!

What is really disturbing are the reasons he advanced; perhaps he felt a need to justify getting an award. He stated he was concerned about a lack of local participation - which frankly is a legitimate issue. The problem is that he was not excluded. He had a full notice, as did everyone else. He could have come and sat down at the table, and cross-examined all the witnesses. Which would have been a good thing. He could have also presented his own witnesses - again a good thing. He had an opportunity to make the State's case and quiet all the criticism. Instead of doing that he went in and shut and it down.

The controversy over this case is never going to die down. A big reason is that instead of putting everything out there - and letting people make up their own minds - the strategy has been to brush it aside, and prevent any further investigation. Is that really something you should get an award for?

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Unless you've been up in the mountains without media access you know that an Italian Court found Amanda Knox not guilty. This verdict followed the original verdict where she was found guilty of murdering her room mate. While I don't know much about the Italian justice system, it appears the appeal goes to a panel of judges, who review the evidence, and can hear new evidence. It was during this process that the reliability of the DNA evidence was questioned.

So what would have happened to Amanda Know in the United States? Her case would have gone to a Court of Appeals, who would review the trial for legal errors. Their review would be limited  to the record of what happened at trial. They don't have authority to order new testing, nor do they have authority to hear evidence. If the reliability of the DNA evidence was questioned it would have been up to her lawyers to do that, and even if they produced the same evidence the Court wouldn't be able to consider it in the direct appeal.

A U.S. court also would not be able to decide whether she was guilty or not. Instead, they would review the evidence to determine if it was "legally sufficient", which basically means whether there was sufficient evidence to support the verdict. The court cannot make its own credibility decisions, but assumes the jury found the witnesses credible. Such review is extremely limited, and few cases are ever reversed on this basis.

So the short answer to the question is that she would still be in prison, and would probably be there for the rest of her sentence. Evidence of faulty test results could be presented in a writ of habeas corpus, but it is doubtful that would be enough - especially since the state still claimed there was nothing wrong with the DNA testing. The only time relief is granted in those situations is where the expert agrees they made a mistake, or there is no doubt about it. Clearly that was not the situation here.

It sucks to be convicted anywhere, but luckily for Amanda Knox she at least got convicted in a system that is designed to catch mistakes. We can probably learn a lesson from that.

• Email This
• Print
• Comments
• Trackbacks
• Share Link