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

Every law,yer has had a case (probably more than a few) where they know the Court flat out got it wrong. The law was clear, but they managed to blow it anyway. No matter how experienced and knowledgeable judges are they still make mistakes and miss things. Sometimes they correct them, but more often than not they don't. They simply move on to the next case.

I've seen court's fix mistakes but I can't remember a case like this one - Ex Parte Moussazadeh, where the court went back and reconsidered a a case they decided 8 years ago. The defendant had plead guilty pursuant to an agreement in which his capital murder charge would be reduced to murder and he would testify against his co-defendants. The defendant - and everyone else believed he would be eligible for parole after serving 15 years. That would have been correct had he entered a plea 11 days earlier. Unfortunately the law had changed when he did so, and he was subject to the newer regulations - which required that he serve 30 years before becoming eligible for parole.

Moussazadeh filed a writ in 2003 alleging his plea was involuntary. The court denied relief, employing some tortured logic. They basically held that the plea was involuntary only if the plea bargain was not followed; they found parole eligibility was not part of the plea agreement (which it couldn't be) and therefore the plea was voluntary. Never mind the fact that the defendant - and everyone else - didn't know what the law was, and believed he become eligible in 15 years.

Fast forward to 2011. The defendant files a successor writ, relying on the  holding in Padilla v. Kentucky. He also filed a suggestion for reconsideration, asking the court to reconsider it's previous decision. The court had no problem rejecting the Padilla claim, since it clearly did not fit within that holding. (Kudos to the lawyers for creatively using it to get the case back before the court) However they granted the suggestion for reconsideration, and ended up granting relief.

The court went back and recognized that if a defendant is mislead about parole "eligibility" his plea may be involuntary. It's a fairly complicated legal explanation, but the bottom line is that if it was important then your decision could not be voluntary.  Think of the decision to buy a car - you believe its new, and has 35 miles. You later learn it was dealer demo and they rolled back the  odometer. you wouldn't have bought it had you known that, so you are entitled to relief.

This is the second time in as many weeks that have had to acknowledge a positive from the Court of Criminal Appeals. They deserve credit for going back and fixing a bad decision. Let's keep it up.

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

I just got back from attending the American Academy of Forensic Sciences Convention, which was held in Atlanta this year. This was my second year to go, so I knew more about what to expect. Last year the sheer number of people and presentations to attend was overwhelming. It was no different this year - and going in I knew there was no way I could attend everything I wanted to.

In future posts I may write about specific sessions, but here I wanted to set out some general thoughts. The first impression was the quality of forensic scientists out there. The people that attend these meetings take their job seriously; they are not the people who blindly follow whatever direction the police set out. They are aware of the criticisms that have been leveled over the last several years, and want to fix the problems. If you work with them consider yourself fortunate.

One of the concerns I have is the use of forensics to determine guilt or innocence - we have seen too often what happens when the testimony turns out to be wrong. I'm happy to see that the good forensic scientists appear to share the same concerns. They appear to be frustrated about the way their testimony is manipulated and interpreted to fit the theory of one side or another. There were a number of sessions on how such testimony should be admitted and used - unfortunately, I was not able to attend them all, since almost every discipline had sessions on the topic.

Several of the presenters addressed the way such testimony should be presented. Not surprisingly error rate and uncertainty was a frequent topic. One of the scientists wondered why others were so concerned about talking about error rates; it's a fact that exists. The real issue is what it means, and how to explain it. For example, what does an error rate of +/-5% mean for a particular result? It might mean that the odds that the true result is within that range is 68%; we've all seen the "bell curve", but how many people actually understand it.  If that is understood, then the question is whether that is enough to make a test admissible, or to base a conviction.The use of statistics and how they can manipulated and misused was also a topic of concern.

I'm starting to  believe that the problem with the use of forensics cannot be laid entirely on the scientists; it's on the lawyers. We not only have to understand it, but we have to understand it's limitations. Clearly the scientists have an obligation to make sure we understand the limitations, but its up to us to make sure they do. And it's also on us to make sure juries and judges understand it. If properly explained, then maybe judges and juries can make the right decision.

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

I admit I'm not a big fan of politicians. With a few exceptions I don't think they truly believe anything. Instead, they are more worried about what the general public thinks - or at least what they believe they are thinking. In the area of criminal justice that  can lead to disaster. Everyone thinks they want to be tough on crime - until it's someone they know caught up in the system, or they discover they don't have money to lock up everyone.

Prosecutors have to walk a fine - and there are very who do it well. They are charged with the obligation to see that justice is done. Unfortunately, that is not so easy to discern, or do. Justice does not  mean locking up everyone and throwing away the key. Punishment is appropriate, but justice requires more than giving in to the interest of victims and the general public. Justice also requires considering the individual defendant, as well as the interests of the general public and society.

Every case is different. Crimes are committed in all sorts of ways. There are also all types of defendants and victims - where you have a victim based crime. No one approach can ever hope to balance all the varying circumstances. To be fair, some consistency is required - if for no other reason than to know where to  start at. When you try to pigeon hole all cases into one disposition though problems are bound to arise.

What caused me to write about this is a post in Grits for Breakfast about the policy of the McLennan County District Attorney - Abel Reyna - to impose an increased fine on all defendants convicted of DWI. He says all t he things you expect a District Attorney to say when pandering to the public; they should of thought about the consequences before they did it, etc.... No doubt he wants to appear tough on DWI's - and is quite proud of that. There's nothing wrong with that ; unless of course you let political considerations influence the outcome of cases - which is exactly what is happening here.

Over the years the legislature has jumped on the DWI bandwagon - and used defendants as a means to raise revenue. The $1,000 surcharge has been a disaster, with the result that the legislature has been forced to set up a procedure for handling those individuals who can't pay it. They recognized too late what every one told them at the beginning - not everyone can pay that, and you are going to end up with a lot of unlicensed and uninsured drivers who have no other choice. (BTW -  Scott Henson aka/Grits has long been advocate of an amnesty program for surcharge payments and has covered that issue better than anyone)

Is is really in the best interest of society to saddle defendants with costs they can never pay? No doubt some may choose to sit out their time in jail - which taxpayers will pay for. They will then lose their license, and get caught in the vicious cycle of trying to work and support their family without having a way to get to and from work.

There is one important thing prosecutors fail to consider when implementing a "get tough on DWI" policy.  Most DWI defendants are average hard working people who made a mistake. They will probably never do it again, and they learned their lesson when you put them in the police car and threw them in jail. They are the people who pay taxes, support their schools and civic organizations, and generally keep society thriving. And by the way - they also vote.

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

By the time the dust settles the case of Michael Morton may end up being one of the most significant in the history of Texas Criminal justice. On it's face, Morton's case does not appear to that much different from the scores of other exonerations over the last few years. What is different is the focus on how he got convicted in the first place - which was due mostly to prosecutorial misconduct. That involved not only withholding evidence at the first trial, but also fighting efforts to secure DNA testing.

The most recent development is the order granting a court of inquiry to look into the activities of the former District Attorney - Ken Anderson - who is now a sitting District judge. A court of inquiry is an unusual proceeding, which is aimed at investigating misconduct. They are seldom used, and I can't remember a situation where it has been used to investigate a prosecutor's actions in handling a criminal case. Instead, in the past prosecutors have essentially been granted a free pass, no matter how egregious the conduct.

I've written before about  the lack of any meaningful sanctions for misconduct. If a defendant is lucky he might get a new trial, but that was not even a given. Prosecutors were rarely criticized, and if they were, nothing was done. The result was the creation of a culture of invincibility; they could do anything, and no one would question them. I'm hopeful that is starting to change, and this is one more more instance that gives me hope.

I don't know whether prosecutors are starting to take their duty to deal fairly with defendants more seriously; I can't imagine they aren't following these cases. Surely if a sitting judge can be called to task that would suggest no one is immune. We still have to see what the outcome is, but I think the message is clear. The attitude of obtaining a conviction at all costs is not without risks  and that can only be a good thing.

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

Normally I'm critical of the Court of Criminal Appeals - over the last few years they have issued some really bad decisions. If you are going to criticize you need to recognize them when they do something right.  They did just that this week in the case of Richard Miles.

Mr. Miles was convicted of murder and attempted murder based mostly an eyewitness and a criminalist who testified that residue found on the defendant's hands indicated he had fired a gun. He had a good alibi, but as usual that was not enough; Eyewitnesses almost always trump everything to the contrary. Over the course of the last few years - and through repeated open records request - he was able to obtain two additional police reports. One confirmed that there were other suspects, and another concerned an altercation the victims had before the incident.  He also eventually obtained a recantation from the only eyewitness, as well as a statement from the criminalist that she would not testify again the same way she testified at trial.  For what its worth, he also passed a couple of polygraphs.

The new suspect came from his girlfriend, who claimed he admitted to shooting two people. He had a record of violence, and also matched the description given by the witnesses - which the defendant never did.  There was also evidence about an altercation the victims had been involved with earlier, where one of them had to pull a shotgun. The criminalist testified at the original trial that under FBI guidelines she believed the residue was the result of firing a gun. She later admitted that guidelines of the lab where she worked were different - the amount was not sufficient to say it came from firing a gun, as opposed to picking it up from innocent sources.

What makes this case was unique is that it wasn't based on DNA. There was a recanting witness, but it was an eyewitness who was emphatic at the time of trial that Mr. Miles was the person he saw. The fact that he was shorter, lighter skinned and had different clothes on didn't phase him - or the police. Nor did the alibi - which was provided almost immediately. The evidence of innocence was compelling, but in the past that has not been enough.  It was here though, and maybe it signals a change in the way the Court is going to handle these claims.

Prevailing on an actual innocence claim is next to impossible - especially when you don't have physical evidence like DNA. Even though the court has acknowledged the problems of eyewitness identifications, that hasn't been enough to grant enough relief. There was a Brady claim here, which has increasingly been the basis for granting relief. You also had unreliable scientific evidence, but the court all but shut the door earlier on that as the basis for relief.

This case had a little bit of everything, and maybe that makes it unique. There was a Brady violation, bad eyewitness testimony, and faulty forensic testimony. Unfortunately, that is not that unusual. It is often the case that a number of different things go wrong when someone is wrongfully convicted. The courts have tended to isolate each issue, and not view them together, as the jury would. To their credit, they did that in this case.

I'm not going to get overly optimistic - but I can't help but feel encouraged by this decision - even if it did them two years to deliver it.

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

The criminal justice system functions reasonably well in most cases. The problem is that it is administered by individuals, and human nature being what it is people don't always do the right thing. Prosecutors and judges have a tremendous amount of power; unfortunately they don't always exercise that power well. This is a real problem for prosecutors, many of who are young and don't have the benefit of wisdom that can only be obtained through living. The idea that a 26 year old prosecutor is making decisions that affect the rest of someone's life ought to send chills down the spine of most people.

But that's not the point of this post. With so much power it's easy to see how it can go to the head of someone who is not well grounded - as the old saying goes "Power corrupts and absolute power corrupts absolutely". The end result is that some prosecutors can come to believe they are the law. Which brings us to the subject of this post, which is the recent controversy in Dallas County.

It seems that the District Attorney - someone who has done a lot a good things for criminal justice - decided that the criminal records of police officers should not be disclosed. Julia Hayes is a county court judge who didn't believe that was the law - which is what judges are supposed to do. In a recent trial the defense lawyer asked for the criminal history of all witnesses - a standard request. The assistant district attorney - Keena Miller - refused to turn over records for the officers. She continued to refuse even after the Judge ordered her to do so. The judge then did what judges do - she held Ms. Miller in contempt.

If that was all that happened there wouldn't be much of a story. What happened next is the story. The District Attorney sent Judge Hayes a letter directing her to appear before the grand jury; and what's more, she was the target of an investigation into official oppression. By coincidence, she was asked to appear the same day - and before - the hearing she had scheduled on the contempt order.

This is definitely a new one for me. I didn't realize that if the DA didn't agree with a ruling you could indict them. I naively thought that's what we have appellate courts for. Apparently I forgot one thing - the District Attorney is the law; the argument is simple - we are right, and if you don't agree then you must be abusing your authority.

Craig Watkins has done some good things with his conviction integrity unit, but that doesn't mean he gets a pass. I hope common sense prevails, because this is not going to go well for him. If he doesn't believe he can be forced to turn over criminal histories, let him appeal and get a decision. Don't shortcut the process, and put yourself above the judicial system.

Fortunately, this is a rare exception. But is a symptom of a bigger problem that we need to be aware of, and guard against. The problem is making sure there are checks on authority - especially when peoples lives are at stake. The District Attorney is not at the top of the totem pole; they are simply one of the participants in the justice system, just like defense attorneys and judges.

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

Thanks in large part to Cameron Todd Willingham and the work of the Innocence Project the problems with arson investigations are now well known. Almost everyone now concedes that there prior convictions that are flawed by investigations involving false assumptions and bad science (if it can even be called that) While courts - and individual judges - have publicly acknowledged the problem, they have been slow to actually do anything about it. Hopefully that may be changing.

Several recent cases show that the courts may be starting to take this seriously. The Third Circuit Court of Appeals last week sent a case back to the District Court for an evidentiary hearing. In doing so the court suggested that a conviction based on faulty science might constitute a due process violation.

In another case a federal magistrate in California in considering whether George Soulitous' 1997 conviction should be set aside because it was based on a faulty investigation. According to a former ATF agent:

Steven W. Carman, a fire investigator for 20 years with the U.S. Bureau of Alcohol, Tobacco and Firearms, said Modesto investigators relied on fire patterns and other forensic evidence that amounted to "a laundry list of things we used to believe broadly in this profession that have since been widely discounted."

Finally, an Ohio inmate is challenging his arson conviction before the parole board.

There is no doubt that these attacks are going to continue, as more cases are identified. Let's hope the Court's are up for the challenge.

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