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

Scott Henson at Grits for Breakfast commented on a story about the tactics used by the Austin Police Department in an attempt to gain a confession in an old case. The case was none other than the one that MIchael Morton was convicted for - the death of his wife, Christine. You probably remember that is the case where John Bradley fought for years to prevent DNA testing  - testing that eventually cleared Morton and implicated another person - Mark Norwood.

In an attempt to gain a confession the Austin PD took a DNA report from another case and doctored it so that it appeared to be in Norwood's case. They then showed it to Norwood, claiming the DNA evidence pointed to him. According to the police they had already been verbally told the results implicated Norwood, but didn't have the report yet.

To Norwood's credit he didn't confess. Had he done so, the confession probably would have been suppressed. Does that mean the officers should be off the hook - no harm, no foul?

It surprises many people to learn that the police are allowed to lie to suspects. They can tell a suspect they have evidence that doesn't exist, or tell him witnesses have already given statements. While that doesn't seem fair, fairness has never been much of a concern to police. "The end justifies the means" is a belief that is entrenched in law enforcement. And there really is nothing to curb the potential for abuse.

We know innocent people confess. And even if they aren't innocent does that mean that police should be able to use whatever means are necessary to solve a case?

Scott believes the investigators in this case may have problems, and I hope he is right. While officers have a right to lie, they don't have a right to create and manufacture evidence, which they did here. Clearly they violated the Texas Statute prohibiting tampering with evidence. (Art. 37.09) But will they ever be prosecuted? My guess is no. After all, a prosecution might chill future investigations, and allow criminals to go free. And who would have to prosecute them - the prosecutors they work with on a regular basis.

I've written before about the need to hold prosecutor's accountable - otherwise there is no incentive for them to do the right thing, and follow the rules. The police are no different. There are laws on the books, and they aren't immune just because they are the ones who enforce them.

This is definitely a story worth following.

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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.

 

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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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Last week I wrote about the Oklahoma Bar filing a grievance against a prosecutor for using a witness in a murder case that he should have known was lying. The following day the Supreme Court decided Connick v. Thompson, and limited the ability to sue a prosecutor for failing to turn over exculpatory. After  he had been convicted of robbery Mr. Thompson learned that the prosecutor had failed to turn over a lab report. He was able to get  his conviction overturned, and  then filed a sued against the Orleans Parish District Attorney. He alleged  that failure to train employees resulted in the violation citizen's constitutional rights.

The argument was basically over what had to be proved. The District Court had held that Thompson did not have to show a pattern of constitutional violations. The Supreme Court disagreed, holding that you have to prove that the DA's office ignored a known or obvious consequence - in other words, you have to show a pattern of violations, which was ignored.

There's a problem with that argument, which is that you generally don't know when evidence has been withheld - because you don't know it exists. It may happen far more than we know about, because there is no way to discover something you don't about it. Unless it's a death  penalty case chances are no one is going to go back and review the evidence.

I don't really believe training is the answer. All prosecutors know you are supposed to turn over exculpatory evidence. The problem lies in determining what is exculpatory and what is not. If you believe someone is guilty, the tendency is to view nothing as exculpatory. For example, the failure of a witness to make an identification just means they didn't have a good view. Some of the problems could be alleviated by turning over everything. But even then, the prosecutor doesn't always have everything in their file; some things be held by the police or other investigators.

Most prosecutors are good, honest lawyers, and they try to do the best they can. They do that because of their individual values and beliefs, and not because of any fear of getting caught. We don't trust everyone to do the right thing, and prosecutors should be no different. There should be some incentive for those who need it. Instead of creating incentives though, we tend to sanction bad behavior. This decision is just one more example of that.

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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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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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This post has absolutely nothing to do with the law. However, it has everything to do with practice of law.

My wife finally lost her 8 year battle with cancer last month. Like so many other cancer victims I have known she suffered through chemotherapy, radiation and all the unpleasant side effects which no one ever tells you about. Pain was an something she dealt with every day; what would keep me home in bed was a good day for her. She was the epitome of courage, and a shining example of how to deal with adversity. Instead of lashing out and feeling sorry for herself, she always looked for ways to make the best of her situation. If you didn't know her you would have never known how sick she really was.

You might say I'm biased because I was married to her for the last 29 years - and you would be right. But I'm not the only one who felt this  way. Which gets me to the topic I want to address.

My wife was a teacher, and loved what she did. She taught at a private Catholic school - for a salary far less than she could have received anywhere else. But she didn't do it for the money; she did it because she loved what she did, and loved the children she taught. People frequently talk about finding your passion - and she certainly had a passion for children, and passing on her faith. She truly cared about all the children she taught. And it wasn't just the good ones; I think she worried more about the ones who gave her problems. She truly believed that God was present in everyone - even if they did their best to hide it. She always looked for the best in everyone, and nothing could make her angrier than someone not treating one of her students the same. She was the ultimate advocate, who stood up for her student's on more than one occasion.

When it came time for her funeral the church was packed. There were more students, former students and parents than I would ever have imagined. Two of her former students gave eulogies, and talked about what an impact she had on them. Many more have told me the same thing both before the funeral, and since. Although the stories are different, they are also  the same. They all know she wanted wanted was truly best for them, and didn't mind telling them when they were heading down the wrong path, or praising them for the good choices they made.

The older you get the more you realize that death is a part of life.  You also start wondering how people are going to remember you. Are they going to be happy you are gone, or grieve at your passing? Ultimately, your legacy is the impact you had on other people. Did you do something to make life better for others? In legal marketing terminology, the question might be if you add value. If you are passionate about what you do, and strive to help others, your life will be a success. Her job was a teacher - but it was more than a job to her. In my opinion she succeeded beyond measure.

Several years ago I read a book by Father Larry Richards called Be a Man. One of the things he suggested you think about was what you want people to say at your funeral. You then live your life with that in mind. Do you want people to say you made a lot of money, or you were on the first page of page of Google or had 1,000 facebook fans? You want people to talk about the impact you had on their lives - for the positive. As lawyers we deal with people in desperate situations, and literally hold their future in our hands. Recognize this and do everything you can to help, and they will be forever grateful.

I realize your former clients probably aren't going to come to your funeral - much less speak at it. But they are going to think about you. What's important is that you treat them just as you would a member of your family (hopefully you get along with them). If you do that you might not get rich, or be the number one lawyer on the internet, but you will have made difference. And that is what's really important.

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Ina recent post I mentioned the issues I've had over the last several months. One of those involved my wife, who has been battling cancer for the last eight years. Several weeks ago we went to her doctor, and He told us what we knew would probably happen eventually - there was nothing else they could do, and it was time to check out hospice. It was not something we had expected, and there are no words to describe the feelings and emotions you experience. While its easy to blame the messenger in a situation like this, you could tell he was almost as upset as we were.

Over the last few weeks I've had well meaning people offer all types of advice. Are you getting another opinion, have you tried this or that? (the answer is yes I have heard about asparagus, fulvic acid, and all the other alternative cures) And I'm not checking out any of them; not because I don't want a cure, but because I trust our doctor. I have no doubt that if there was something out there that would help he would give it a try.

All of this started me thinking about how this relates to what we do as lawyers. When we first started out years ago I was expecting treatment and a cure. If that is what we paid for, we clearly didn't get our money's worth. I'm sure client's have the same thoughts. They come to us with different expectations; some may want to get off, while some may simply hope to avoid jail. In the post-conviction arena they want their conviction reversed. Many times lawyers just can't deliver on those expectations. Let's face it; if there's a video, several eyewitnesses, and DNA evidence, you aren't going to get off.

There's no doubt that lawyers - and doctors - have an obligation to manage expectations. It starts with learning what they are - if you don't know what the client/patient expects, you can't manage it. But that is little simplistic; some people don't know what they want, while some may start off wanting one thing, but end up wanting something else.

So if you don't pay for results, what do you pay for?  I would like to believe you pay for their expertise, knowledge and experience, and expect them to put that to use for you. In other words, you expect them to do the best they can do. Hopefully that ends with a result you are happy with - but not always. If not, you know you have done everything you could do.

I don't know why clients have such a hard time accepting this. In the sports world, it  is accepted that you don't achieve expectations all the time. If you think about baseball, someone who can hit the ball roughly 1/3 of the time is going to make millions; no one expects them to get a hit every time they go to bat. The same goes for quarterbacks, running backs, or any or position. We accept mistakes will be made, and sometimes they may look no better than a rookie. In the end though, we believe their best is going to be better than someone else's best.

I think we paid our doctors to do the best they could do, which I believe they did. I don't feel like we wasted money, but that it was money well spent (and yes I know we only paid a  portion of the total costs - but who could afford a 20,000 chemo treatment without insurance) I only wish more clients accepted this. The fact that they don't is often times the lawyer's fault. We may be doing great work, but how does the client know that? They only know it we educate them. Even then, there are going to be doubts without one important ingredient;  they must know we really care. That is something you cannot fake; if you don't really care no amount of persuasion in the world can convince themselves otherwise.

In the end you have to care about your clients, and make sure they know you care. Of course practicing law this way is harder; if you have a lot invested in your clients you are going to feel their pain. If you can do this you are going to do everything you can, and the client will know you have given your best. That's all anyone can expect.

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It's been awhile since I last posted. I've had the fall from hell, spending more time in hospitals at funerals than I have in the last 15 years combined. I realized just how skewed things had become when we were together following a funeral and my brother in law pointed out we were comparing the merits of the food at different hospitals. It doesn't look like the new year is going to be much better, but you have to start somewhere.

There is nothing that elevates my blood pressure more than stories of police and prosecutor misconduct. A recent case of the Texarkana Court of Appeals is a prime example. In Woodruff v. State you had a a familiar scene - a high profile murder case that took awhile to solve. So instead of talking to witnesses, evaluating evidence and other traditional means of investigation, the District Attorney decided to go straight to the source; he instructed the sheriff to record the calls between the defendant and his attorney. Needless to say, when the attorneys discovered what was going on the you know what hit the fan. They filed a motion to recuse the District Attorney's office, and moved to suppress anything that was learned during - or could be traced to - the recordings. The Attorney General took over, and as expected fought the motion. The end result was that the court held they shouldn't have done it, but there wasn't any harm. To add insult to injury, they pointed out that the attorneys suspected their calls were being recorded.

My problem with this is that it is yet another example of allowing prosecutors to get away with anything. They are free to violate the violate the law - and step all over the constitution. Why can they do it? Because they are the good guys, sworn to put away the bad guys. On the one hand they can talk about being tough on crime, and punishing all who violate the law, and on the hand violate the law with impunity.

We are not talking about a simple mistake, or error in judgment. here. Even someone who didn't go to law school knows that communications between a lawyer and his client are privileged. This isn't an issue that is subject to interpretation. They knew they couldn't record the calls, and they did it anyway. And why shouldn't they? Most cases like this end up the same way. The prosecutor is told they shouldn't do that, but the prosecution proceeds. There's no discipline, and no sanctions, so what incentive do they have not to do it.

Thankfully the majority of prosecutors are honest, ethical people, who would never allow something like this to  happen. But they follow the rules not because of fear of punishment, but because of a moral understanding of what is right and wrong. If they don't have it - or if they view their job as putting away the bad guys at all costs - there are no external restraints.

Unfortunately this is not an isolated story. Something needs to be done to ensure accountability. We have criminal punishments to assure compliance with the law. We know some people need incentives to follow the law. Why should we continue to believe prosecutors and police officers are any different?

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Recently Chicago prosecutors agreed to dismiss charges against Maurice Patterson, who had been convicted in 2004 of murder and sentenced to 30 years. He was back in court because it was discovered that blood on a knife found near the murder contained the victim's blood, along with another person. That was important because at trial prosecutors claimed there was no blood on the knife, and therefore it was not connected to the murder.

in reporting the dismissal the State's attorney said the prosecutors acted in good faith, and noted that the judge found there was no intentional misconduct. They also took offense at any suggestion of misconduct, saying it was "wrong and unfair" to make such claims. They say that, without ever offering an explanation for what happened.

It appears that the lab reports showed blood, which was then tested. So did the prosecutors look at the lab report and mis-interpret the statement that blood was found on the knife? Did they not get the report? If they didn't have the report, then they were certainly reckless in saying no blood was on the knife - without actually knowing that. Did the police lie about blood being on the knife.  I don't know what happened, and while I can't think of a plausible excuse, maybe one exists. What bothers me is this is business as usual. Prosecutors are free to misrepresent evidence without any consequences. We've seen it time and time again.  The explanation that it was an honest mistake is accepted without question. Whatever the real reason in this case, at best the prosecutor  played fast and loose with the truth.

One thing is for sure - whatever the reason, Mr. Patterson spent six years in jail for nothing. At the very least, he should get an explanation.

 

 

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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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I am back from taking a long weekend to go bass fishing. Before I left I talked with friend who was heading to the annual Rusty Duncan Seminar sponsored by the Texas Criminal Defense Lawyers Association (who have a newly popularly elected president BTW). He was not enthusiastic - mainly because he's not too enamored with the new group of lawyers coming into criminal defense work. That got me to thinking about what it takes to be a good criminal defense lawyer - and what are the wrong reasons for getting into this type of work.

I know what is referring to. Working on post-conviction cases, as well as working with the Innocence Project of Texas, I get a chance to autopsy cases that have gone bad. Too often there was no reason for the case to end up with a guilty verdict. Sure, there are cases where the lawyer did everything possible, and lost. If that hasn't happened to you, you just graduated from law school. Many times though there was a lot that could have been. It's easy to identify the good lawyers - they are  usually the ones that tell you they are willing to do whatever they can to help, and don't mind admitting where they could have done things differently (again, if you tried a case and didn't criticize yourself at the end you just got out of law school, or never tried a case). If the lawyer tell you they did everything they could - they probably didn't.

Others have commented on the marketing push - including the need to use social media. For some, criminal defense work is an afterthought - something basically chosen by default. Their goal is to make as much as money as possible, and clients are merely an end to that. For those, I can save you the trouble. You are never going to become rich as a criminal defense lawyer.

If you have  been around for awhile, think about the really good criminal lawyers you have seen; how many of them for wealthy. Sure there are some who achieve fame and fortune, but the odds of doing that are probably less than a high school football player going on to become an NFL superstar. There are many good lawyers who make a decent living, but also many who barely scrape by.

Why is that? After all, we are always taught that hard work and expertise lead to success. I believe there are several answers - the most basic being one how you define success. As I started getting older, I realized that success is not related to your income. Rather, success is doing something you enjoy doing, and doing it well. If you don't really enjoy criminal defense - which means enjoying working with your clients - you shouldn't do it.

There are other reasons - ones I learned the hard way. Running and managing a law practice, and actually practicing law are two entirely different things. I am terrible at running a practice - which includes marketing - and for that reason have always struggled. You can't emphasize management over the actual practice of law, but you can't ignore it either. I'm still working on that.

Another reason is that good criminal defense lawyers are advocates - they don't like seeing people screwed around by the system. sometimes those people have money, often they do not. I don't know any good criminal defense lawyer who doesn't take cases from time to time for reduced fees, or no fee. They take things personally, and aren't going to stand on the sidelines. Unfortunately, your landlord, family and all the others who rely on you don't run on good intentions.

I finally came up with the answer to the question in the title. You know you are a criminal defense attorney if you would do it even if you didn't have to. If someone gave you millions of dollars today and you never had to work again, you would still go into the office tomorrow (well maybe not tomorrow, but eventually) It's in your blood, and you can't just walk away.

Sadly, I don't think there are many such lawyers around anymore. Clients have no way of determining who is good, and who is not. The often make decisions on what they read online - i.e. hype. Few good lawyers engage in such practices, although it is become more of a necessity just to survive.

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Whenever you mention good and evil the first thing that pops into a lot of people's minds is crime and criminals. After al, criminals are evil and the police and prosecutors are the good guys out to protect society. The whole criminal justice seems to focused on demonizing defendants and ignoring the fact that they are real people. That's not what I want to write about though; what I want to write about is the Massachusetts senate race - specifically, Martha Coakley.

I realize I'm a little late getting this to. I'm from Texas though, and my knowledge of Massachusetts is that its out east somewhere.

So what does a senate race have to do with criminal justice, and the battle between good and evil? Twenty years ago Coakley was involved in the prosecution of the Amirault family for child abuse. It turns out that the charges were instigated and conceived by the State. Everyone was convicted and sentenced to prison. Normally, that is the end of the most cases. Not so here, because the Amirault's lawyer, John Sultan wouldn't give up. He kept at it - probably without payment, and probably at great personal sacrifice. In the end, the case unraveled, and there was tremendous pressure from the public and the judiciary to do something about it.

Here comes the evil. Coakley didn't want to lose face entirely, so she placed Mr. Sultan in an impossible situation. She would agree to reduce the wife's sentence to time served if he would withdraw from representing the husband. Since Mr. Sultan was the only one fighting for them, I'm sure she thought that would be end of it. Mr. Sultan ultimately agreed - probably one of the most agonizing choices he ever had to  make.

I wish I could say that's never happened before, but it has. Ms. Coakley had no problems in using another person to further her own career. After all, she was an important person. He was nothing more than a convicted defendant. I don't have the words to express how despicable I think that type of conduct is. So what was her punishment - a stellar career and possible a United States senate seat.

Prosecutors are quick to label defendants as sociopaths - someone who has no concern for others. Someone who is only concerned about themselves. How does that definition not apply to  Ms. Coakley in this situation.

There was a battle between good and evil here - Mr. Sultan represented everything that is good about criminal defense lawyers; Ms. Coakley represented everything that is wrong with prosecutors. In my  mind - evil won.

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I started following the situation in Arizona out of curiousity more than anything else. I'm sure I'm like most lawyers and couldn't imagine a court bailiff going through my file while my back was turned. I'm pretty sure that where I practice the bailiff would be fired immediately. Not so in Arizona with sheriff Joe Arpaio. Not only did he not fire him, he threatened the judge, and started a criminal investigation. The situation has deteriorated quickly, and appears that it is now a battle between the sheriff and the courts and the lawyers - from where I sit it looks like the sheriff has the upper hand.

It probably took me longer than most, but my curiosity has progressed to concerned. Thanks to Rick Horowitz I started thinking about how serious this could become. The problem is that sheriff Joe is enormously popular. His popularity is the result him seizing on people's fears - in this case its fear of immigrants and fear of crime. He has people convinced he is protecting him; I understand he is thinking about running for Governor, and would probably be the favorite.

It's natural  for people to be afraid - everyone is afraid of the unknown, and those who are different from them. We all view people like Hitler in hindsight (and no I'm not comparing sheriff Joe to Hitler - at least yet), with knowledge of the evil he did. We forget how he got to the position of power - he seized on people's fears. He was enormously popular in Germany, and successfully convinced everyone that it was them against everyone else - e.g. jews, catholics, people of color, etc..  The world was aware of him for a long time before he finally forced their hand, and made them react. I'm sure the prevailing view was that's something that doesn't effect me; after all, it's clear across the ocean.

In the United States we have seen the influence of the Klan. Seizing on fear of those who are different they convinced the majority that blacks were different, and could be treated differently. The treatment didn't extend to discrimination, but violence.

What can we learn from history? I think it's that we cannot turn a blind eye simply because evil is not right before us. I have always been amazed about how entertwined the Klan and religion were. For the most part they believed they were acting in accordance with God's will, and the bible was part of their beliefs. I'm sure there were many who attended the lynching on Saturday night, and sat in the pews on Sunday morning - maybe as deacons and preachers. The same thing happened with Germany; most denomimations, including the Catholic Church, have acknowledged they could have done far more than they did.

My question now is where are people of conscience - and the church - in Arizona? My guess is they are voting overwhelming for sheriff Joe. They have let their own fears overshadow their beliefs in convictions. They either don't see - or refuse to recognize - the incongruity. The rest of the United States doesn't get a pass either.

Those who profess to believe too often ignore the passage from Matthew where Jesus says we will be judged by how we treat the least among us. (I doubt Christianity has a monopoly on this - I just don't know enough to quote other beliefs). The least among us includes immigrants, and criminal defendants (yes they are people). If you really want to distill that teaching, just assume it applies to anyone who is different.

I often wonder what I would done if I had been alive when Jesus walked the earth. He was clearly a rebel - he was on the outside attacking authority. And those in authority were so convinced they were right they rejected him. I worry that I would have been right there with the Pharisees.

I also wonder whether I would recognize Jesus if he appeared today. I'm sure he wouldn't fit our perceptions of him; he would probably be homeless, and dirty. In short, he wouldn't look like us. I'm pretty sure if Jesus shows up in Arizona he's going to be arrested and living in a tent.

Some of the lawyers in Arizona have had enough, are calling for a rally tomorrow. They know the repercussions; some have already been called in for questioning and threatened with obstruction. Most recently sheriff Joe has threatened to investigate the State bar. Despite that, some brave lawyers are going to stand up and be counted for what is right. I wish I could be there - I will be there in spirit. Let's hope thier example turns the spotlight on what happens - before its too late.

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Although I haven't been following the case, it appears the charges against Broadcom founder Henry Nicholas are on the verge of being dismissed. Nicholas and several executives have been charged various offenses. Last week the judge set aside a guilty plea against the former chairman, and co-founder of the company because of misconduct by the prosecutor. Yesterday the judge threw out the charges against Nicholas, leaving only a separate drug charge. It appears that charge may also be headed for dismissal for the same reasons.

It hasn't been that long ago that the conviction of Senator Ted Stevens was set aside for prosecutorial misconduct. So you have at least cases this year where the court has effectively sanctioned the prosecutor for their conduct. Claims of prosecutorial misconduct are nothing new. In fact, its a favorite claim of defendants in post-conviction proceedings. Most of those claims are frivolous, and nothing more than a complaint about the complaint about the conviction. Claims against prosecutors are almost as prevalent as claims against defense lawyers.

What is new is that the claims are being taken seriously - at least in some cases. The standard reaction in most cases has been to sanction the lawyer for making the complaint. Courts assumed there was nothing to them - after all, the prosecutor in their court would never do something wrong. They were out seeking justice - right?

Until recently, I can't remember the last successful claim of prosecutorial misconduct. So what does it mean? Are prosecutors acting worse? Or are courts just more willing to entertain the argument? The bottom line in these cases is the position of the defendants. A wealthy defendant and a senator. Not only do they have money to mount a defense, they also have something most defendants don't have - credibility. Judges can identify with them, and I think are more open to entertain the thought that the prosecution might be based on something other than evidence.

The question remains whether the willingness to consider these claims will extend to other cases. At least the precedent has been set.

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ne of the blogs I enjoy reading is Zen Habits. I've picked up some great tips organization, productivity and keeping things in perspective.  Sometimes there is also information that specifically apply to lawyers. recently he wrote about expertise, and how long it takes to achieve expert status - his answer was at least 6 years.

I'm sure that's not what new lawyers want to hear; they come out with a law degree, and consider themselves experts. Many aren't shy about telling you about their expertise; just google criminal lawyer or any variation thereof. There's no criteria for when you can declare yourself an expert - its up to each lawyer to decide themselves. Unfortunately, most of those who consider themselves experts aren't; and those who don't consider themselves experts really are.

I agree to a point with Zen Habits - you can't become an expert in anything less than 6 years. However, just because you've reached that mark doesn't mean you are instantly an expert. I wish that were the case - I've got 27+ years under my belt. That means I've been around, but doesn't make me an expert. I like to think I'm really good at certain things - but certainly not everything that relates to criminal law.

When I first started I had an older lawyer tell me it took at least 5 years to figure out what you are doing and get a practice started. I thought he was crazy, but he was absolutely right. I've seen it time and time again, and finally started giving the same advice.

Expertise requires more than knowledge. It also requires experience. More importantly, it involves perspective. Not only do you need to know how to do something, you need to know when to do it. Contrary to what most people think (especially defendants and new lawyers) practicing law requires more than knowledge. Good lawyers have intangibles that others don't possess. One of those intangibles is a passion for justice and a desire to ensure their clients are treated fairly; many times those desires conflict with economics. In other words, if your only interest is in making money, I don't think you are ever going to become an expert.

The internet is a great thing - but it can't make you an expert without experience and desire. you still need to put in the time. sorry - there is no short cut.

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The coverage of Cameron Willingham continues to new issues daily. It's hard to choose what to comment on - I could easily spend the whole day setting out my thoughts (not to mention answering questions from reporters. BTW if any reporters are reading this, my secretary won't give you any inside information, or my "cell phone number - does that ever work) The decision was made easy by Todd's trial attorney going on CNN -  sounding more like a prosecutor than a defense lawyer.

Mark Bennett addressed the in interview in his usual insightful manner, and tried to answer the question of whether he violated the bar's ethics rules. I don't have an answer for that, but I am sure that his conduct is not what people expect from their lawyers - and they shouldn't expect. You don't expect your lawyer to bad mouth you, even if you didn't get along with them. Although I don't think its in the rules, as a lawyer you ought to have some duty to not damage your client. At the very least, Mr. Martin is damaging Todd's reputation, and his ability to obtain some relief in through the forensic commission. The fact that he aligning himself with Gov. Perry ought to tell you something.

The hippocratic oath for doctors says to "never do harm" to thier patients. As far as I know lawyers don't have similar oath - but certainly its implied. Clients expect their lawyers to protect them - why else would you hire a lawyer. Unfortunately, lawyers put their own interests above those of their clients.

You might say you have no duty to your client after they die. To me, that's a cop out. I consider Todd my client. and will do whatever can to clear his name. I have the same feeling for any client. I've represented some pretty despicable people, and I would never bad mouth them in public. I listened to mother when she said if you can't something good about someone, don't say anything.

Scott Greenfield asked why he would make those statements. He can't answer that question, and I don't think anyone can come up with a logical explanation. No one is suggesting he is why his client was convicted and executed. We all didn't know then what we know now about arson science. It would be easy enough to say I did the  best I could - if I had the reports that are out now, the result may have been different. No one could argue with that position.

In my opinion he has created questions about his representation. It's one thing to think your client is guilty - in truth, most of them are. They still has the burden to prove guilt. Mr. Martin's comments appear to show more - a dislike, maybe even hatred of his client. Nobody says you have to like your clients; but it shouldn't affect your representation. You have to wonder now if his feelings effected his representation. He's basically become more of an advocate for the prosecution than the State.

Jeff Gamso had one of the more insightful insights - I wish I could have said it as well:

And then there's the matter of going on the air to declare his client guilty. Why in the world would he do that? To garner business? Unlikely. That's not the way you attract clients. For the glory of national television? Some people just can't resist. Whatever the reason, he was wrong. Whatever he was thinking, he wasn't thinking enough. That duty of loyalty. That obligation not to disadvantage. That lack of judgment. That putting his own interests before his client's.

He's right that you don't need to believe your client innocent to provide a stellar defense. As I said, innocence is, ultimately, irrelevant to the work we do. Proclamations of guilt are something else.

It really is inexcusable. Really. Inexcusable.
 

I don't know if Mr. Martin is still practicing law; I certainly hope he's not practicing criminal law. If I were potential client, I would certainly question how dedicated he was going to be.

___________________

Thanks for Jeff Gamso for pointing me to Rants of Public Defender - which also has a great comment on Mr. Martin.

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As criminal defense lawyers we don't always represent the nicest of people. Some of them are difficult to get along, and want to fight you at every step. Many lack basic social skill - that is usually why they are in your office in the first place. Despite all that I generally like almost all of my clients; when you get to the bottom of their problem, it often is an otherwise good person who made a bad decision. Of course, getting to the bottom of things often takes time and effort.

The reason why I started thinking about this arose out of the Cameron Todd Willingham case. Except for a few people, most people who have looked at that case now believe he is innocent. One of those few people is one you would not expect - his trial lawyer. He has described him as a sociopath, and still believes he is guilty. It's pretty clear he didn't like him.

Todd's lawyer is not the first to think his client guilty - although his conduct may be to the extreme. The fact is, most defendants are guilty of something. The truly innocent client is rare, and one most lawyers dread getting because of the enormous burden you carry with you. Even if you know you're client is guilty, that doesn't mean you don't give them the best defense possible. The State already  has a prosecutor aimed at convicting them, and they don't need any help. If you are not prepared to make the State do its job, and do everything you can for your client, you need to do something else; maybe something that doesn't involve people's futures.

Do you have to like your client to effectively represent them? Not necessarily, although its nice when you do. Good criminal defense lawyers are passionate about something else; you can call it justice,  or something else, but they are passionate about making sure the system works, and the letter and spirit of the constitution is put into effect. That is why good lawyers can represent the people who society considers the most reprehensible.

Effectively representing someone means more than knowing the law though. You also have to know your client. There's a reason why they are in the position they are in, and you need to find it. In doing so, you usually discover they are not the person the State is portraying them to be. And yes, you might even start to like them.

It always find  it odd that people who are fond of saying "hate the sin, love the sinner" don't apply that to criminal defendants. Society, with a lot of help from the prosecutor, is quick to jump all over something who does something bad. Their lawyer shouldn't do the same; they have a story to tell, and its the lawyer's job to tell. You don't have to like what they did - there's probably something wrong with you if you do - but you do have to find the reason why did it. Hopefully its something other than that they are sociopath.

So you don't have to like your client, but it helps if you do. After all, it is you and him (or her) against the government.

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It's not news that the economic downturn has hit lawyers. Big firms are laying off people, and new lawyers are having trouble finding jobs. A lot of those people are gravitating to criminal lawyer. There are also those there to profit, so there are plenty of people ready to assist those lawyers find clients. Scott Greenfield has been critical of those, and has not been hesitant to provide advice for those who want to become criminal defense lawyers. His posts should be read by all those who think this is the ticket to easy money.

What does it take to be good criminal defense lawyer? Obviously it's more than a desire to make money. As others have pointed out, the fact is most criminal defense lawyers never get rich. I think you can identify a good criminal defense lawyer by identifying why they decided to practice criminal law. They didn't do it by default because nothing else was available - well, okay maybe some did. Most do it because they truly believe in our criminal justice system. They believe the Bill of Rights means something, and they don't like to see people getting screwed over by the government.

That doesn't mean you always have to like your clients. Just because you represent criminal defendants doesn't mean you are advocating murder, robbery and sexual abuse. You do have to know your client, and try to understand why they did what they did. Many are good people who are caught up in bad situations. Some are just bad people, who choose to prey on others, and There may be nothing to like about them; however, that doesn't deter a good criminal defense lawyer.

In the end, we don't defend clients because we like them. We defend them because there is something more at stake. We are truly the champions of the underdog. No matter who they are, or what they have done, they deserve to be treated fairly and with respect. Often it's those who have done the worst things that need us the most; those are the ones who everyone else is against. Their family and society may have abandoned them; we are the only ones who can stand up for them. If you don't believe in that, then you should be chasing ambulances, or doing something else.

Don't get me wrong - we want to earn a living and support our families. It's about more than the money though. if all you are after is the money, you don't really care what happens to the client. Good lawyers do care though; and they care just as much about someone who pays them $1,000 or $100,000. I'm still working on case on a client who that was executed several years because I want the State to acknowledge what they did.

If you looking to hire a lawyer, don't look for someone who simply tells you what you want to hear, and run away from the lawyer who seems more interested in the fee than the facts - they probably are. Find a lawyer who cares about the justice system - you'll benefit from their passion.

 

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I was in court recently waiting for a hearing, and heard an exchange between a defendant, his lawyer and the judge. The exchange wasn't unusual - the defendant was complaining about his lawyer - he wasn't working for him, and was working with the prosecutor to get a conviction. That's a fairly common perception about appointed lawyers; a perception that is almost always wrong. While there are all types of lawyers, there are many appointed lawyers who do excellent work. In this particular case I knew the lawyer, and knew he was doing everything he could for the defendant; the problem was that the client didn't like what his lawyer was telling him.

In allowing the lawyer to withdraw, the judge made an observation which many judges routinely forget. He said he had no doubt the lawyer was doing everything he could and was not working with the prosecutor, but the defendant might think that.  He ended up appointing another lawyer, with the usual warning that he wasn't going to pick who was going to represent him, and he needed to listen to his new lawyer.

I have to commend the judge for looking at things from the client's perspective. All too often judges forget what it was like to actually practice law when they ascend to the bench. They forget we have clients, who we have develop a relationship with. I've seen judges question what a lawyer was doing, or make some comment that does nothing but cause the client to have doubts about his lawyer's competence. On the other hands, I've seen judges commend lawyers on something they have done, and you can see the client's trust expanding before your eyes. Good judges recognize we have to work with our clients, and try to account for that in their comments. Of course they can't do that in all situations - but they try.

In the case I observed, nothing good would have been obtained from making the lawyer continue on the case. The case would have to be tried, even if there was a reasonable resolution. A writ would be sure to follow, which would take up more resources. The client would talk about he was screwed over by the judge, which which would create distrust among inmates. Granted, those things are unavoidable many times; but if there is a chance to avoid it, why not take it.

The lesson from this judges is to remember we have clients. For lawyers, how we interact with clients is as important as what we do. Clients don't know whether you are doing a good job or not. They need to trust that you have their best interests in mind. If they believe that, they know you are fighting for them, and will trust what you are doing. For clients, most lawyers really are trying to help you. You can't survive long if you continually screw clients over; so trust what your lawyer is telling you.

I don't know if the relationship with the new lawyer will be any better; there are some clients who are not going to get along with anyone. If the defendant complains about the new lawyer, the judge is probably not going to be sympathetic again. At least he tried though - which is more than will do.

 

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It's not surprising that the blawgosphere is buzzing over the ethics complaint filed against Sharon Keller of the Texas Court of Criminal Appeals. Both Scott Greenfield and Mark Bennett have weighed in on the issue. Grits collects some of the numerous editorials that have come out. As you would imagine, no one is coming to her defense.

The complaint contains additional details that were not well known. We knew that she instructed the clerk's office to close at 5:00, even though she knew MIchael Richard's lawyers were planning on filing a request for stay. Some of the other facts are truly outstanding, and show the mentality that is far to common among criminal court judges.

It appears a little thing someone's life wasn't going to get in the way of really important things; she had to go home to meet a repairman. After all, everyone would want to make sure everything in her house was working properly. Some of the justices were actually taking their job seriously; they stayed late to review the anticipated filing. They were never told that the clerk's office had been closed, and nothing could be filed. Apparrently they expressed their surprise the following day, and were never told what had happened. This included Justice Cheryl Johnson who actually had the responsibility of ruling on Richard's requests.

That conduct illustrates an extreme, that in lesser measure is far too common; judges don't see defendants as real people, with real families. They are viewed as defendants - convicted criminals. No matter what they have done, they are still people, and deserve some respect. That respect at a minimum should include actually reviewing their case before making a decision. It also includes putting your job ahead of your personal interests. I firmly believe that we will be judged by how we treat the least among us; that includes people like Michael Richard.

Justice Keller is now basically a defendant. Although criminal charges are not a possibiity, these proceedings will determine her future. I'm reasonably sure she wants to be treated with respect; she probably expects more because of her position as a Justice on the Court of Criminal Appeals. She will probably get a full and fair hearing. No one is going to close the office, or go home early. Everyone will bend over backward to ensure she is treated fairly. She will probably get the benefit of every right she is entitled, even those she thinks defendants shouldn't have. Fortunately for her, she will probably get to exercise the very rights that she has voted to extinquish - rights like due process, confrontation and even the presumption of innocence.

Fortunately for society its rare for a judge to become a defendant. When they do, I'm sure their perpective. All those rights they think should be limited suddenly become important. We will have to wait and see what happens - I have no idea. One thing I do know t hough; I doubt there are many people in the Texas Department of Criminal Justice that are upset about what is happening.

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The Chief Justice Chief Tom Gray, of the Tenth Court of Appeals was admonished by the judicial conduct commission  for various acts, including the tone of his opinions, and breaking into another justice's office

. The stories were probably eye opening for many people. Most of the public holds judges in high esteem. Sometimes that is warranted, and sometimes it is not.

You would hope judges would honor their position, and fulfill the obligations they have been granted. They are real people though, and just because the title of judge has bestowed doesn't mean their character changes. They are who they were before they came to bench, and their isn't some magical transformation that occurs when they are sworn in.

We have been fortunate in McLennan County to have good judges. I have been all over the State, and seen firsthand how some judges are consumed with their power. They treat everyone who comes before them with contempt - especially criminal defendants. I know its easy to become jaded when every day  people are paraded before you who have engaged in some despicable behavior. Good judges are able to keep the proper perspective; they know they are dealing with human beings and fellow citizens. They recognize that people are not always what they do; sometimes their behavior is an aberration, and there are reasons behind it. No one wants to be judged on the worst thing they have ever done, and good judges remember that. Good judges also remember that they were once lawyers too. We have to deal with other lawyers, clients, families, and judges. They recognize the world does not revolve around them, are able to empathize with those appearing before them.

One of things Judge Gray was admonished for was the tone of his opinion. There is no doubt he has written a lot of dissents, and that is right. No judge can be admonished for his decisions, and the admonishment in this case was not based on the fact he dissented. Instead, it was based on the personal attacks in those dissents. It is not unusual to see an personal address in an opinion, but attacks are a different matter. Many of those were accompanied by scripture quotes, which I have a problem with. I take my faith seriously, and spend a lot of time working on it. Unfortunately, some use faith to justify their conduct, and attack others. I believe that is decidely un-Christian, and is one of the reasons people hold Christians in such low regard.  It always surprises me that people use scripture most often to condemn. Seldom do they note that we will be judged by how we treat the least among us.

Appellate court judges occupy a different position. They don't have to deal with clients, and rarely deal with lawyers. The get to sit in their offices, and read about what happened at trial. They were all lawyers before, and some remember what it was like to actually try a case; on the other hand, some forget too easily.  They exercise a tremendous amount of power, which sometimes goes to their head. Judges are not immune from the adage "absolute power corrupts absolutely". We have also been fortunate in McLennan County to have excellent appellate court judges, which makes the current situation more unusual.

The moral of this incident is that judges are real people, and are expected to act like.  No matter who they are dealing with, they should treat them with the dignity and respect they deserve as children of God. For those who Christian, they should remember that their time to judge is limited; in the end they will be judged like everyone else. At that point the first shall be last, and the last shall be first. In more secular terms, they only need to treat others as they would want to be treated.

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If you practice criminal defense, you've encountered "jail house lawyers". They might be your client, who thinks he knows the law, and wants to control his defense. More common though is the friend who is advising your client, and second guessing everything you do. If your client is incarcerated, you can rest assured they are getting advice, whether solicited or not.

Since I handle a fair number of appeals and post-conviction matters, I encounter jail house lawyers fairly often. Inmates in prison have access to law libraries, and many spend a lot of time there. Of course, they have no one to guide them, except for other inmates. It's sort of like turning a Fifth grade class over to six graders. They might know more than the fifth graders, but they certainly don't have anywhere close to the knowledge their teacher has.

For some reason, people seem to think the law is simple. All you have to do is read a statute, and maybe a couple of court opinions, and you will know what the law is. I can't tell you how many times I've had people tell me they have researched their case, and they know something was illegal. Very seldom are they ever right; if they are, its usually for a completely different reason. Even relatively bright people think that's a simple matter to learn what the law is on any particular issue; after all, we do have the internet now.

There is a reason you need a degree before you can even apply to law school. There's also a reason why you have to go to law school for 3 years. It's not simple. All you need to do is ask a first year law student; they spend a major portion of their year just learning how to read and interpret legal decisions and statutes. In many ways it's like learning a new language; lawyers don't talk write or talk like other people, which is something you would think is apparent to everyone. If it was as simple as most people seem to think, you wouldn't need to go through that torture.

I've taught post-conviction procedure at a law school, and I know how difficult it is to understand some legal concepts. I've taught some young people who were the smartest ones in College, and I haven't had one yet who would turn over a case to. Sure they can do research, but they still don't have the knowledge and experience to put it all together. I don't know many defendants who would let a student represent them; yet they have no problem trying to control their own defense, believing they know what the law is. The sad part is that many of those people don't even have a high school degree.

People don't do this in other professions. I consider myself fairly bright, yet I don't go read up on a medical condition and try to treat myself, or tell my doctor how to treat me. For the same reason, I don't try to tell my mechanic how to fix my car. I understand they have the experience and expertise I don't have.

The most common thing you hear defendants say when they are going to prison is that they are get into the library and work on their case. Some are nice enough to tell you they are going to help you out, since they will have a lot of time to spend. I'm all for bettering yourself, but that is not the way. Work on a degree or learn a trade. There are plenty of ministries in prison, and you can work on your faith. Those activities will help you; working on your case is not going to do anything but make your lawyer's life more difficult. Time for lawyers is a premium. If they have to spend time trying to educate client, and explain why the great case he found doesn't apply to his situation, that is time they are not spending on your case.

You hire a lawyer for a reason. Let them do their job, and trust their judgment.

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There's been a good discussion over the last several days about what it takes to be a good criminal defense lawyer, and how well prosecutors can transition into being defense lawyers. Mark Bennett astutely pointed out the concept of confirmation bias; the tendency to see things we expect to see. Using the case of a recently exonerated defendant, he pointed out how defense lawyers are not immune from confirmation bias. I certainly can't disagree with that, but I think there's a distinction between confirmation bias and laziness. Unfortunately, there are lawyers who really don't care about their clients. The client represents a fee, and the lawyer is only interested in collecting the fee, and going on to the next case. When profit is the primary motivation, the goal is to resolve the case with the least amount of work possible. That usually involves a plea, because trying a case takes time and work.

A good defense lawyer is one who cares about their client. We have to make a living, but that's not what motivates good lawyers. They want to make sure they achieve the best result possible. That requires work; investigation, research, and time. You have to know everything about the case as well as the client. I don't think bias is a problem with those lawyers, because they looking at a case from every angle possible. Even if there is no doubt, they still work to achieve the best possible result.

What no one has discussed is bias among the group that exercises the power - judges. It's not surprising that it exists; they see thousands of cases. All but an extremely small minority are guilty, or at least admitting their guilt. It doesn't take to long to start assuming that everyone is guilty. Obviously, that impacts all types of decisions. Good judges recognize it, and try to account for it. They recognize that not everyone is guilty, and they have to make those who aren't do not get convicted. Few are successful all the time.

There's also a built in bias in the law once a conviction is returned. On appeal, courts assume the defendant has already a trial, and been found guilty. In post-conviction litigation (i.e. habeas corpus), there is a presumption the defendant is guilty, and the conviction is valid. It takes a lot of evidence to overcome that presumption. As a result, people with strong innocence claims are not able to obtain relief, and remain in jail.

Judges are supposed to be impartial referees, but too often they move to one side or the other. As defense lawyers, we often face what appears to be two prosecutors.  When things go wrong, everyone is quick to blame the lawyer or the prosecutor. The judge may have played just as big a role. Few judges are willing to intervene when they see something they know is wrong. We need more judges willing to do that.; unfortunately, doing the right thing is often not the politically popular thing.

We need  to recognize the good judges, and make sure they get the credit they deserve. Maybe if we do, we will get more of them.

 

Continue Reading...

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In case you haven't heard about this, Vanity Fair recently had an article about a mother who refused to accept a guilty verdict in her son's murder case. John Giuca's mother, Doreen Guiliano, was apparently prepared to do anything to help her son. She ultimately created a false persona, by dying and her hair, and getting herself in shape. She then went "undercover", and befriended one of the jurors. She earned his trust, smoking marijuana with him, cooking for him, and who knows what else.He ended confiding in her that he should have never been on the case because he knew some of the people involved, and knew the defendants were guilty. She was recording everything, so it is all on tape.

The son's lawyer now has the information, and has to to determine how to use it to obtain a new trial.

With a story as unusual as this, you expect people to start talking about. Some have praised her tenacity, focusing on the fact that she uncovered what was no doubt serious juror misconduct. Others have raised the question of what effects this could have on potential jurors.

There are several things that bother me about this. One is the lengths she went to in order to gather information. If the police engaged in that sort of conduct, it would be entrapment. While they might form a personal relationship, they certainly wouldn't go to this extreme. It bothers me that anyone would be willing to do that; it appears she essentially prostituted herself to obtain information. I realize my personal moral code may be different from others, but I have a hard time believing most people would do that.

Another problem I have is the focus on the results; no matter what she did, she uncovered information of misconduct. The police routinely make that argument to excuse their failure to follow the law.  The same people condoning the action in this case are the ones who vehemently argue the ends do not justify the means when it comes to the government. I realize there are differences, because private citizens do not operate under the same constraints as government agents. We must impose limits on the government, because of the potential for abusing their power. But in the end, does that mean a private citizen can do anything to obtain information.

I have to agree in part with Scott Greenfield that we should be concerned with the effect this may have on potential jurors. Jury service is an inconvenience, and most jurors expect that once the case is over, they are finished. I'm sure they don't expect to be stalked, or investigated. If potential jurors started worrying about that, you have to wonder how many people would be willing to serve. There is also another problem I see, which is encouraging this type of conduct, and creating the impression that most jurors hide information.  In my experience, cases like this are extremely rare; it's rare that a juror will know the victim in the first place, and even rarer that they either don't disclose it, or someone doesn't already know about it. That doesn't mean contacting jurors doesn't have a place, because it does. It is always useful to find out their thoughts about what happened, and try to determine if anything improper occurred during deliberation. Those contacts however are generally not very intrusive.

Assuming they are able to use this information, there is no guarantee a new trial is going to be granted. That depends on a number of things, including what influence the juror's knowledge had on the decision. If he kept that knowledge to himself, and didn't share it with other jurors, the court may determine there is no harm. The evidence of guilt is also an issue. I don't know anything about the case, but if the evidence of guilt is overwhelming, the failure to disclose the information is going to have less effect.

This will be an interesting case to follow. In many way, they are in uncharted waters, and no matter, some precedent is going to be set.

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How Appealing noted an article in the Houston Chronicle about the investigation of Federal judge Samuel Kent. Kent has been indicted for federal sex crimes. The article notes that Kent is not alone; four other federal charges are facing cages including taking cash from lawyers, abuse of power, using an escort service, and posting nude photos on a web site. It is rare for a federal judge to face such charges; it is even rarer to have this many at the same time.

Federal judges are appointed for life. As a result, they have almost unlimited power. On Congress has the power to remove a federal judge. Although its happened, its been a long time since a federal judge was removed by Congress.

Is there a reason for this, or is it just a reflection of society? I don't have the answer, but I have some thoughts. Federal judges have  a tremendous amount of power. Such power can corrupt some people. You hope the selection process weeds out those who are susceptible to abusing power, but we know it doesn't always. As a society, and as lawyers, we have to monitor the actions of our judges, and not be afraid to challenge them when they are wrong.

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Everyone is commenting about Charles  Hood's case. While its by no means an exhaustive list, below are some of the posts from the last few days. In case you haven't heard, the fomer Collin County District Attorney, and former District Court Judge (later Court of Criminal Appeals judge), finally admitted to having a long standing  relationship. Whether it was going on during Mr. Hood's trial is in dispute, but there is no doubt the two were in a relationship when the District Attorney was appearing before the court. Obviously, that is not proper, especially when no one knows about. The question is what you do about it.

The majority of people are not aware that most errors in criminal cases don't cause the case to be reversed. Before a case is reversed, a court must find the error was harmful. Basically, that means the error had some impact on the proceedings. A problem I have always had with the harmless error rule is that intent is not a factor. That is, a court or prosecutor can intentionally do something they know is improper, and not suffer any consequences. Unfortunately, that is the deciding factor in many rules - whether it is something that will get the court reversed.

The problem with an improper relationship like this it is almost impossible to establish harm. You would have to show the judge ruled a certain way because of the relationship. That is going to be all but impossible to establish. As a result, there are no consequences, other than what the bar or the judicial commission might impose. Of course, that does nothing  for Mr. Hood and the other defendants who appeared in that court.

I have an alternative approach, which I think would have the necessary deterrent effect. Where an improper relationship is established, presume it was the result of the relationship. If a defendant can establish an error, then put the burden on the State to establish the relationship played no factor. If there clearly was no influence, then the case would be affirmed. Otherwise, the defendant would get a new trial, before an impartial judge and prosecutor.

If we want people to have faith in the judicial system, then we must ensure that all defendants are treated fairly. We also must protect the perception of the proceedings. I doubt anyone believes a trial before a judge and prosecutor are involved is fair. Let's do something to ensure that doesn't happen again.

 

Did prosecutor romance taint Texas murder trial?

The soap opera surrounding Charles Hood's case

Hood execution stayed

Prosecutor and judge in capital case admitted affair

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The Law of Criminal defense reports on an Iowa lawyer public defender who asked for sanctions against a prosecutor for making her prepare for trial, even though he knew he was going to dismiss the case. Predictably, the judge held he had no authority to issue sanctions. Although the result was predictable, the story highlights one of overlooked aspects of indigent defense.

No politician wants to spend money on indigent defense. Almost everyone has heard the question "Why do we have to spend so much money paying for lawyers for criminals?" What know one ever mentions is the effect prosecutors have on those costs, especially in places where there is no public defenders office. Discovery is an area where lawyers spend a lot of time, much of it needlessly; there are many lawyers who have to waste time (and money) sitting in the DA's office, taking notes from the offense reports. In many places, you also have to waste time looking for a prosecutor, so you can review the reports. Prosecutors also waste resources when they wait until the last minute to evaluate a case, and make a final decision. Of course, they have no incentive to try and save money on defense costs, and I doubt its something they even think about.

There's no telling how much money we could save by making things easier for defense lawyers; not only money on indigent defense, but also money spent housing defendants who don't need to be in jail, or don't need to stay in county jails. Maybe filing a Motion for Sanctions is a way to bring the issue to the front...

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Western Justice, as self proclaimed small town DA, recently asked the question whether defense promoters are lie promoters. The question he posed is whether a defense attorney whose client has confessed to him is promoting a lie when he goes into court and argues for not guilty verdict. You would expect that to strike a cord with a defense lawyer, and it did. My first reaction is how another lawyer cannot know how our criminal justice operates. I'm not aware of any jurisdiction where we ask a jury to find a client innocent or guilty; we ask them whether the state proved its case beyond a reasonable doubt. There is a distinction, and its an important one.

Walk into any courtroom in America, and you are probably going to hear the same arguments being made - "the State has not proved its case beyond a reasonable doubt." You can be guilty as sin, and if the State's doesn't prove its case, the jury has to find you not guilty (remember O.J.) So can you argue for a not guilty verdict, even if you know your client is guilty? If you can't you don't have any business being a lawyer.

Can you imagine what the situation would be if it was different.? No lawyer would be willing to represent someone they thought was guilty.  I guess you would have to defend yourself.  Surely, no one would think that process is fair.  We have an adversarial system, and for that to work, defense attorneys have to make the state prove their case.

That's not to say there are not a ethical considerations.  Sometimes, difficult issues arise, and each lawyer will have to resolve them on their own.  You can't point the blame only at defense lawyers though.  Prosecutors also have an obligation, which they too often ignore; they  have an obligation to see that justice is done.  You only have to look at the recent exonerations to see how the system can break down.  In many of those cases, there were obvious problems, and the state chose to look the other way.  Prosecutors have an obligation too, and it's not to accept what ever they are told, as long as it is consistent with their view of what happened.  They carry the weight of the government when the go into court, and most jurors want to believe what they say.  Some prosecutors occasionally forget this, and think their only obligation is to present the evidence to a jury, and let them decide. They are the initial gatekeepers, and need to always remember that.

I'm proud to be a criminal defense attorney, and represent the citizen-accused against the power of the government. And I'll continue to make the government prove its case - if they plan on taking away someone's liberty, society should demand no less.

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A recent Dallas Morning News editorial applauded District Attorney Craig Watkins for agreeing to scrutinize non-DNA case. I applaud him too; unfortunately, he is probably going to be in the minority. In fact, I would be surprised if any other elected District Attorney decides to follow his lead. In non-DNA cases, the knee jerk reaction is to fight them tooth and nail. In the absence of conclusive proof (like DNA) few prosecutors are going to agree that a person is innocent. I have seen this most often in recantation cases. Granted, most recantations are false, but many prosecutors refuse to acknowledge the possibility that at least some of them are true. If you plead guilty, your odds are even worse. Until prosecutors are willing to honestly accept the fact that there are a substantial number of innocent people of prison, this problem is not going to be resolved.

A recent blogger reported a prediction that the next wave of innocence cases will be arson convictions. I certainly hope that's true, because I have one. Almost everyone agrees that what was known about arson investigation back in 1980's was wrong; much of it was nothing more than "old wives tales". The result was that many fires were declared to be intentionally set, when they were probably accidents. These cases are unique, because you are not claiming someone else committed the crime; in fact, no crime was committed. Unfortunately, that has been the biggest hurdle to overcome, because many people refuse to believe that no one is responsible for the deaths that result from these fires.

DNA cases are easy, especially when you can prove who actually committed the offense. These cases are far more difficult, although the defendants are no less innocent. Judges and prosecutors are going to have to step up and do the right thing. I hope I'm wrong, but I think Mr. Watkins is going to be part of a very small minority. I hope voters don't hold that against him, and you know it will be an issue. Even if they do, I have no doubt he will be rewarded.

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A recent post by Austin criminal defense lawyer Jamie Spencer suggested that Jesus was the ultimate defense lawyer. I'm guessing there are a lot of people who disagree with that idea, and probably would get really worked up if someone suggested it. I'm thinking of those whose are sometimes referred to as the radical part religious right. I say radical, because I consider myself in alignment with a lot of the things they advocate. However, I also disagree with many of their positions, starting with the death penalty. I may be wrong, but I think many of them put criminal defense lawyers only slightly above the citizens we represent.

Several years ago I heard a conservative talk show host make ask the question "whether a criminal defense lawyer could be a Christian". Needless to say, that got me agitated, and kept me fuming for days. As with most things, some good came out of it, because it caused me to think.

I have taken to heart the teaching that we are going to be judged by how we treat the least among us. It's easy to be nice to those we like, and our friends, but it's far harder to be nice to those we despise. Unfortunately, the criminal justice system often revolves around the decidedly non-Christian concerns of retribution and vengeance. I've handled several death penalty cases, and one of the saddest things I've observed is how the victim's family is often consumed by hatred and vengeance. Those feelings take them away from their faith, while at the same time those on death row are often growing in faith. Unfortunately, that desire for vengeance is often fueled by the system. It is certainly fueled by politicians, who go to great lengths to avoid recognizing criminal defendants are part of God's creation also. The new concept of restorative justice may be the solution, but this is for another post.

Our job as criminal defense lawyers is to see the good in our clients, and make sure they are treated fairly. In doing that, we often advocate for some of the most despised people in society. In other words, we interact daily with the people Jesus would probably be with if he were walking the earth today (not to say that he isn't, but thats even more of a theological question) So would Jesus be a criminal defense lawyer? I don't know, but I'm confident he would be support the job we do.

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In my career I've been blessed to help in securing the release of an individual who had been wrongly convicted of capital murder, and imprisoned for more than 16 years. As a result, I consistently have inmates and their families contact me about taking their case. I currently have a few such cases, and have a special interest in ensuring we identify those who are actually innocent. So a recent news story caused me a great deal of consternation. Two lawyers had received a confession from their client to a murder that someone else had been convicted. So they knew that an innocent person was in jail - and he stayed there from 26 years. The truth didn't come out until the client died, and the lawyers released the information (having obtained the client's permission to do so). As lawyer, we must always protect the confidences of our clients. In this one small way, we are like priests. So they were right in not disclosing the information. That doesn't mean they didn't have a few sleepless nights over the years. Not surprisingly, this has been the subject of comment. Sometimes being a lawyer is not all its cracked up to be.

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