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

Mark Bennett has gone on the warpath against the practice of ghostblogging. His criticism of the "social media" is nothing new - he even started a blog devoted to it at Social Media Tyro. I must admit -until last week I ddn't even know there was such a thing as ghostblogging. I was quite surprised - for a number of reasons.

Since it seems to be a fairly common practice, I wanted to make sure everyone (all 4-5 of you) know that I write this myself. I probably don't need to say anything - you probably already figured out no one would pay for this. But I'l go ahead and claim the credit - everything on here is mine.

What surprises me about ghostblogging is why anyone would do it. I'll admit that when I first started blogging I was hopening to get marketing benefit from it. I wouldn't have done it if I didn't like to write and share information. For the same reason I write articles and lecture at CLE programs. I can't say that I've seen much benefit from a marketing standpoint - probably because I haven't made that a focus. I have enjoyed doing it though - and I think it's been a benefit to me. If I hadn't started blogging I may have never even heard of Mark Bennett.

What I don't understand is how ghostblogging jibes with the whole theory of social media. From what I have read, the idea of blogging is to give clients an opportunity to see how you think and what you know.  Aren't you misrepresenting yourself when you use a ghostblogger? You may think you are reading the thoughts of a brilliant lawyer, when in fact they are bumbling idiot. It reminds me of the stories of people who put up someone's else picture on dating sites - big surprise when they actually meet. Imagine the client reading the work product of a lawyer who has used a ghostblogger.

So I quess we now have one more way to decieve potential clients. I love the internet and all the information available to us - but at the same time, you have to be careful what you believe. All I can do is assure is that here you are getting my thoughts - for whatever they are worth.

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The regular college football season is now over; for college football fans like me we now have to find something else to do on Saturdays. There is still the bowl season, and the Heisman race. Unlike most years, the Heisman race is wide open. Until he turned in a horrible peformance against Nebraska my guy - Colt McCoy - was in the lead. Now it's anyone's guess.

This past weekend was not only the last regular season game for McCoy, it was also the last regular season game for Florida quarterback Tim Tebow - who won the Heisman two years ago. For those who don't know, many claim Tebow is the best college football history in history.

McCoy, Tebow, and last years winner - Sam Bradford - all have one thing in common; they appear to be extraordinary young men. They volunteer in their communities, go on mission trips, and have a strong faith. You would think that would be a source of praise - and pride. Instead, it has become a source of criticism. More than a few people have questioned whether the appearance is genuine - in other words, some feel it is just an act.. When Colt McCoy kneeled down with his  head down (like he was praying) I'm sure many viewed that as less than genuine.

Obviously I don't know any of those three; I assume - and I hope - that the appearances are genuine. I certainly don't have anything to suggest they aren't.

I don't think this something peculiar to college football fans; instead, it's a reflection of society in general. We have come to the point where we assume everyone is bad or evil. If they appear to be good, it is just an act. If that's true, what does it say about our jurors. We already know that most people think criminal defendants are "different" from them. Obviously they did something wrong, or they wouldn't be where they are - right? Do we have a chance of overcoming those presumptions?

What does that does it tell us. To me, it says that attempting to convince jurors our clients are really good people is probably not going to be effective. We certainly need to try, but don't put all your eggs in one basket. Maybe we need to play off those feelings. After all, police officers and prosecutors are just like everyone else; why should jurors assume they are out doing the right thing.

Recognizing trends is something we have to do, and deal with. You can learn something from everything - even college football.

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I recently attended the 10th annual march against the death penalty in Austin. I'm not big on marches and rallies - i think that was only the second one I've been to in my life. I went because I was invited to talk about the case of Cameron Todd Willingham. He was the centerpiece of the rally, and his picture was everywhere. Everyone there is convinced that this is the case that will change public opinion on the death penalty - I'm not convinced.

I've given this a lot of thought, and finally realized that this argument - that people's minds will change if they are convinced an innocent person was executed - involves an underlying assumption. The assumption is that general public will really care. I don't mean care in the sense that they believe it was a terrible thing, but care in the sense that it personally effects them. You only have to look at the most recent public opinion polls to know this is true - the majority of people already believe an innocent person has been executed, but they still support the death penalty.

I think the problem is that we have lost the sense that human life is sacred. The majority of anti-death penalty supporters are just as guilty as everyone else. My sense is that most in the anti-death penalty camp don't believe human life is sacred from the moment of conception. On the other hand, the majority in the anti-abortion camp have no problem with the death penalty, and often times are its most ardent supporters.

Almost 30 years ago (1968 to be exact), Pope John Paul II authored an encyclical - In Humanae Vitae. In that document he made a number of predictions, many of which have been proven to be true. Pope John Paul II also coined the phrase "culture of death". His theory was that we live in a culture of death because we no longer value human life - which is a reflection of the divine.

I think he was right on. You don't have to be Catholic - or even religious - to recognize the problem. In my opinion, beliefs about the death penalty are not going to change until peoples beliefs about the sacredness life change. I'm not knocking the anti-death penalty crowds - I admire their passion, which is something missing from far too many people. I simply believe that is going to take more than proving an innocent person was executed to cause a change in attitudes.

 

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Yesterday the Court of Criminal Appeals denied the writ of habeas for Michael Hood; he sought relief after he discovered the prosecutor and the judge had an ongoing affair, which included the time of trial. Hood obtained a recommendation from the current state trial judge that relief be granted. That is extremely difficult to obtain in any case, and most times is enough. The trial judge made several findings, including and finding that Hood's lawyer's exercised reasonable dilligence in bringing the claim. Not suprisingly, the judge and prosecutor hid the affair, and Hood's lawyer's did not find out until well after the trial; after his appeals had already been denied.

I didn’t have a lot of hope for Hood’s claims. The Texas court of criminal appeals does not exactly bend over backwards to help capital defendants; one might conclude they go out of their way to affirm the convictions. However, I would have never guessed the reason for denying the claim. I thought they would hold that Hood could not prove the affair affected his case in any way. The court did not address that issue, instead holding he had waited too long to bring the claim. The surprising thing about that finding is that the trial judge specifically found that his lawyers exercised reasonable diligence. After all, the judge and prosecutor were doing everything they could to keep anyone from finding out.

The Court of Criminal Appeals has been in the middle of the news for at least the last year. Almost everyone knows about the hearings to reprimand the presiding judge based on the closure of the clerk’s office, which prevented Michael Richards from obtaining a stay of execution. Their response was to blame the lawyers. No matter what the reason, it appears there is no doubt that Richards would have received a stay, and was prevented from doing so because the presiding judge ordered the clerk’s office to close at five o’clock. More recently, the court is in the middle of the controversy over the execution of Cameron Todd Willingham.

Scott Benson - i.e. Grits for Breakfast is not one to mince words. He recently wrote that the court has become an international disgrace. I’m certainly no expert on world opinion, and I will leave that to others. However, there is no doubt that the court seems oblivious to public opinion. I don’t necessarily think that is a bad thing, because courts should not be influenced by such things. However given the almost universal condemnation you have to wonder why they don’t at least consider that; they have to know this is another opportunity for the media to come down on them.

The answer to my question in the title of this post is probably yes. I’m sure there will be other decisions that will be equally as bad in the eyes of the public. The question will be whether that translates into a change come election time. I tend to doubt it, because most people do not have a clue as to who the judges on the court are, and what they do. I have been practicing law for over 25 years, and I couldn’t tell you the names of more than a couple of judges on the Supreme Court of Texas. I simply do not practice there, and do not keep up with civil law. If a lawyer doesn’t know who the judges are, how can the general public..

Maybe this is what we need to to reform the judicial system. While appointing judges has its problems, you generally cannot argue with the fact that most judges who are appointed are qualified. You may not agree with their decisions or their philosophy, but generally you cannot disagree with their qualifications. The same cannot be said for elected judges. History has shown that sometimes all you need is a popular name to win an election. If you call most lawyers, probably most of the judges elected to statewide offices are not the most qualified candidates in the field. The time has come to change that, and maybe this is the chance we need.

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I originally started this post to comment on the protests taking place of the dragging death of a young man in Paris, Texas. Two of his friends were originally charged with the death. However, a truck driver later came along and admitted he could have ran over the young man, and it appears that is probably what happened. The prosecutor finally dismissed the case; normally that would be the end of the story. The problem in this case was that the two young men were white, and the victim was black. Never ones to let facts stand in their way, the special interest groups claimed racial prejudice. The end result was the protests, which of course brought ought the Klan and their like.

No sooner was the ink dry on that story than news broke of the arrest of Professor Gates at his home. Since he was black and the officer was white the claims of prejudice were sure to follow - never mind that at least one of the officers was also black. I'm not going to enter the discussion on that issue; others are taking care of that. I think it's clear that both Prof. Gates and Off. Crowley could have better decisions.

I'm the first to admit racial prejudice still exists in America; it's most apparent in the criminal justice system, and I've seen hundreds of examples. However, just because it exists doesn't mean every decision is racially motivated. Most specail interest groups have a knee jerk reaction, and never attempt to find out the true facts. Unfortunately, I think they hurt the very cause they are trying to advance.

People have almost become immune from such attacks - and expect them. The result is that when there is a legitimate complaint it is often ignored - remember the boy who cried wolf? There's also an unintended consequence; people (i.e. prosecutors) are especially cautious when there is the possbility of such claims. The result is often a type of reverse discrimination. I'm guessing the prosecutor in the Paris case knew the repurcussions when he made the decision to dismiss; which means he probably had no doubts.

We've come along on racial issues in my lifetime. We still have a ways to go. My fear is that as long as groups on either side arbitrarily react to every possible we will never get there.

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I just got back from a weeklong backpacking trip with my son and his scout troop(which also is one of the reasons I haven't posted in awhile) . You have a lot of time think when out in the wilderness, especially when you are hiking 6-8 miles a day.  Among other things, I had a chance to think about how backpacking in the mountains is similar to criminal defense.

PREPARATION AND PLANNING: Just like a trial, a week long trip requires a tremendous amount of planning and preparation. You have to anticipate what might happen during your trip, and prepare for it. For instance, rain is always a possiblity. You don't want you or your equipment to get wet - if it does, you are going to be miserable for few days.

When you go on a trip like this you need to take everything with you - you can't run to the store if you forget an extra pair of socks. Planning takes time; you need to start well in advance, and constantly check and update your equipment. You can't possibly anticipate everything in one setting, just like you can't properly prepare for trial the night before.

Preparation and planning also requires education. You have to know where you are going, and what kind of terrain you will encounter. You also need basic knowledge about wilderness survival; if you don't know how to purify water you are in trouble. In the mountains, you also need to know how to prevent bears from joining you in camp. In trial, you have to know the basics, such as the rules of evidence. You also have to know the law that may be specific to your case.

PERSISTENCE: In the woods, failure is not an option. I learned this the hard way, when we ended up at the wrong camp site after hiking all day - one without water. We  had to determine where we were, and how to get to a site with water since everyone was running low, or out all together. That required hiking several more miles - well past the point of exhaustion. There wasn't the option of quitting or stopping, or calling for help. In trials, things often have a way of taking a wrong turn. You can't quit; instead, you have to devise a strategy to overcome the situation.

USING WHAT YOU HAVE: In the woods, you have to use the resources you have. It's amazing how creative you can become when you have to. In trial - especially criminal trials - you have to work with what you have. Usually that isn't much. If you are lucky enough to have witnesses they may not be the brighest. The facts are almost always bad. You have to take what's there, and find a way to use it for your benefit.

I'm sure there are some other similarities that may come to me later. I also learned a few other things. For one, we don't realize how much we really have. We take running water, electricity, grocery stores, and bathrooms for granted. Many people do not have those most basic necessities. I voluntarily dealt with it, but many in the world don't have the choice. It gave me a different perspective - one I'm glad I had the chance to experience.

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Recently there has been a lot of discussion concerning President Obama’s pick for the Supreme Court. Not surprisingly, there are those who support the nomination, and those who don’t. Both sides try to frame their argument in terms of what a good Supreme Court Justice should be. Those arguments have descended to the point of ridiculousness.

The focus has become on the proper influence a judge’s background should have. Those opposing the nomination argue that it should have no effect; they view the comment that she sees herself as a Latina judge as offensive.

It is hard to come up with a more ridiculous argument. Everything about any person, from what you put on in the morning to what you eat for breakfast is determined by your upbringing and experience. We are all a product of our life experiences. Hopefully we have learned things along the way, but you cannot divorce yourself from who you are and more than you can change your physical make up.

The proper focus should be on what sort of person we want to be a Supreme Court judge. In the past it has been almost entirely federal court judges. Basically, it has been a promotion from one court to another. While there is some logic to appointing someone with judicial experience, there is also a drawback. More than any other court, the Supreme Court has an impact on every person in America. It specifically has an impact on those involved in the court system, especially the trial courts. Unfortunately, very few Supreme Court judges have ever served as trial court judges. To me, that is significant because they are telling those judges what to do, without any understanding of its impact. There simply is no similarity between a Court of Appeals judge and a trial court judge in terms of what they do on a daily basis. Courts of Appeals review cases on paper, while trial judges see cases as they are happening.

I’m all for diversity, and believe it will be a good thing to bring a different perspective. However, I question how different the perspective of Judge Sotomayor is really going to be. While she may come from a different background, her work experience is no different than the other judges. She has basically been a federal court of appeals judge; as such she has no more insight into the daily workings of the justice system than your average citizen.

Personally, I would like to see at least one judges who has worked “in the trenches”, whether it be a trial judge, or a trial lawyer. They see up close real people, and real problems, and see the effects those problems have on them. No one who has watched a mother sob uncontrollably as her son is led away to prison, or seen the effects of crime on a victim as they testify can say that has not effected them. They see good police officers, and they see those who they wouldn't trust to tell them the correct time. They know there is always more than one side to a story. They are in touch - as much as an outsider can be - with life on the streets. Unfortunately, I don’t think we will ever have a Supreme Court justice who can bring us that perspective.

Despite the rhetoric, I seriously doubt that Judge Sotemayor's nomination is in jeopardy. I hope she will bring a diferent insight to the court. I for one hope she is influenced by her background and upbringing. I don't see how that can be a bad thing.

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I recently posted about the decline in the number of investigative reporters, and the effect that would have on death penalty cases. Almost on cue, the Texas Observer came out with its second article looking at cases where convictions have been based on faulty arson evidence.

Granted, this is not a death penalty case. Also, in the interest of full disclosure, I admit this is a case I am working on. Despite that, this is an important issue, which has been getting an increased amount of attention over the last couple of years. Arson is one of those areas of "junk science", and may well be the worst. For years, so called experts testified about things that were at best guesses and speculation. They often testified about how the fire "talked to them", and how they could determine what happened from looking at the scene. The problem is that they know nothing about the scientific principles of fire; most were nothing more than fireman, whose sole training came from other firemen.

There are no telling how many people are in prison for something that was nothing more than an accident. Although there has been publicity, it is has not gained attraction like the DNA exonerations  have. Hence the need for investigative journalists. Unless they are there to get the story out, these people have no voice. Lawyers face an uphill battle in these cases; that battle is easier when public sentiment is our your side - which doesn't happen with the journalists. Anyone who doubts that need only look at the DNA cases, and the widespread acceptance among the general public that innocent people are convicted. That sentiment wasn't there 10 years ago - back then most people would say innocent people are seldom - if ever - convicted.

So to Dave Mann and all the other investigative journalists out there, keep up the good work.

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I think most of us forget our age most of the time - we still have a self-image of ourselves when we were younger. So it's a rude awakening when we get reminded that we aren't in our 20's anymore.

Recently I received a large package from the Texas Criminal Defense Lawyer's Association. I had no idea what it might be -  i have never even seen an envelope like that. I opened it up, and was surprised to find a very nice certificate stating my 25 years of membership. The thought had never crossed my mind that I had been a member that long (actually it's a little more than 25, but who's counting). My first reaction was that I had become one of those lawyers who had are acknowledged in the back of bar journals for living a long time. I realize I still have a long way to go - there's a lawyer in my building who is working on his third 25. But it still made me stop to think what it means to have practiced law for almost half of my life.

You regularly see lawyers promoting their years of experience - the assumption is that the longer you have been at, the better you are. That can be true, but it certainly isn't a constant. Some lawyers are no better than they were the day they started. I think it has a lot to do with desire, and the reason why you became a lawyer. If its to make money, that is your primary focus. You only become better if it helps you make more money. On the other hand, if you are truly concerned about your clients, you are always trying to make yourself a better lawyer, so you can represent them better. For those lawyers, experience really does mean something.

One thing we have to guard against (I'm referring to those of us with mostly gray hair) is the tendency to think we know everything, and that someone just out of law school can't possibly know anything. On the contrary, they can teach us a lot. They  haven't been indoctrinated into "the way things are". They don't blindly accept things, and it's good for us to acknowledge that maybe there is a reason for that.  i have to make myself - sometimes I'm successful and sometimes not - but I try to be open to ideas from lawyers who haven't been at it a long time. They have a different perspective, and that can be good.

I'm not someone who dreads birthdays - after all, the alternative is not too attractive. I wouldn't want to be 20 again. On the other hand, I do hope that I can always retain that desire to learn, and try to remember that I really don't everything.

I think I'll go find a nice frame for certificate now.

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I started blogging for client development. I've done it for awhile now, and my focus is shifted. While I don't mind new clients (you actually need them), I don't write posts for that purpose. Instead, I like to write, and have posted on a number of topics. Those topics have included scientific evidence and innocence related issues (which I follow closely), to other things involving everything from pre-trial to post-conviction. I've also thrown in a few theological discussions.

So I've decided to rename my blog. Not being blessed with the creative gene (I actually think I have an anti-creative gene), I need some help. I've come up with a few ideas, including the boring (post conviction law), to somewhat more creative (blesssed are the persecuted, now what). I'm sure there a far more creative people, so help me out. I'll be glad to give credit if you want it.

All suggestions are welcome.

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Last week I followed one of my passions - I went to Del Rio and served as a Marshall for the Bassmaster Elite Series tournament. For you non-fisherman, the Elite series is a series of tournaments across the country for the 100 best fisherman in the world. They fish for money - $100,000 is usually first place, as well as points for an angler of the year competition (which pays $250,000)

This was the first year for the Marshall program - basically you get to ride in the boat with a professional angler. Technically, you are there to ensure they follow all the rules - which really isn't necessary because they are the most honest guys in the world. Actually, its a way for BASS to make a little extra money, and expose people to professional bass fishing.

Del Rio was not very South Texas - the temperature never got above 48 - the first day the wind was howling, which is means the lake looked the Gulf of Mexico. I learned within the first 10 minutes that professional bass fishing is not all fun and glory - that would not be the way I way described blasting across a lake at 50 mph in freezing cold (usually they go about 70-75, but the waves made them slow down) Taking it a slow is not an open when you are fishing for the kind of money they are.

If you think practicing law is hard, think again. These guys have to pay $5,000 just to fish in the tournament. They also have to pay for transportation to and from the event, and lodging. Of course they also the normal expenses associated with fishing, such as gas, tackle, etc. If they do well, they might make enough to cover their expenses - if they don't, they are in the hole.

These guys are good (if you think this is sexist, they do have a separate women's tour). Yet they don't have control over anything. One of those is the weather; during the first part of the part when they were allowed to practice, the temps were in the 80's. That all changed on the first day of the tournament. Needless to say, bass (like humans) behave differently when its cold than when its hot. So basically, anything they learned during practice was out the window.

Bass do not volunteer to be caught. Professional anglers know more about bass behavior than we probably know about human behavior. Basically, fishing is trying to trick them into biting an artificial lure. There are thousands of different lures, and hundreds of different ways to fish them. They have to decide which lure, and which technique is best on that particular day and time. If they guess right, they are successful - if not, not so much.

One thing I learned over two days is its not just about catching fish - they can all do that. Its about catching the biggest fish, which is a lot harder to do. The two fisherman I was with had no problem finding fish, but they struggled with trying to get the big one.

Over the 16 hours I sat in the back of the boat,  I thought about several things (other than wishing it would warm up and I would get some feeling in my fingers). Lawyers just think we have it hard; we at least get to work in the comfort of a controlled space. If we lose, we don't lose everything - although we have expenses, we don't have to put up our own money each time we take a case. Even though we have to deal with a lot of issues, we can predict most of them. While prosecutors and jurors are hard to predict, its easier than trying to guess what a fish is going to do. And most importantly for me, I don't have to be away from my family for most of the year - I get to home each evening, and enjoy my family and my home.

I like to fish, and someday I would like to be able to do more of it. However, I would never want to be a professional fisherman. I'm thankful I have the privilege to practice law - and I'm thankful I had the opportunity to recognize what a privilege it is.

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There's been a lot of discussion about the problems big law firms (Bigaw) are facing as a result of the recession. With very few exceptions, big law firms handle civil and transactional matters (e.g. real estate and estate planning). Most criminal defense attorneys are solos; a few may have partnerships with other lawyers. There are several reasons for that, one probably having to do with our personalities - we don't work well with others.

For those who don't know,big law firms consider them businesses, and they are run like businesses. Some of the bigger even have a managing partner, who does nothing else. Their focus is on generating income, to pay salaries,and hopefully big bonuses at the end of the year. They are profitable because they utilize leverage; they get paralegals and lawyers who generate more revenue than they get paid in salary. The excess is profit for the partners. The more work they can generate, and the more they can delegate, the more profitable they are.

There are a number of reasons why criminal defense practices are not set up on the same model.  For one, we don't have clients who can write checks every month in the amount we determine. We also don't have an endless number of associates and paralegals. Criminal defendants want to know who is handling their case, and they want it to be the lawyer they hired. They hire based on your reputation and skills, and they expect you to use them. There are situations where a lawyer gets help, and most clients understand that. For instance, many lawyers have law clerks do research, and they use investigators to locate evidence. In the end though, it is the lawyer making the decisions, and it is the lawyer you hire that goes into court with you.

There are some firms/clinics who have tried to implement the Biglaw model into criminal practice. They advertise extensively, and try to draw in a large number of clients. Those clients are assigned to lawyers who are on salary; many with little or no experience. Its a volume practice, and assumes criminal cases are routine, and can be processed just like a will or a real estate transaction. Nothing is farther from the truth, and most clients recognize that.

So what are the two models; basically, one is a high volume, lower cost practice. The other is a low volume practice, with higher fees. Depending on where you are, some or most of the criminal defense lawyers handle court appointments. The pay for those is always lower than what you would normally charge a client. Some lawyers make a living on such appointments; to do so, they have to handle a large number of cases. Obviously, the more cases you have, the less time you can spend on each case.

When you hire a criminal defense lawyer you are paying for several things. One is experience and expertise.  Another is time - you want your lawyer to have enough time to handle your case properly. The more time a lawyer spends on your case, the less time he has for other cases; thus, they will charge a higher fee, and accept fewer cases.

I don't know why people think hiring a lawyer is different from anything else in life - you get what you pay for. If you want a good lawyer - one who will devote the time necessary for your case - you are going to have to pay for it. There are only so many hours in a work day. Most good criminal defense lawyers aren't getting rich; but they do want to make a decent living. They have to choose which model they are going to use; not surprisingly, most want to be compensated for their expertise, and want to be able to continue providing quality representation.

There's one last factor at play which is unique to criminal law; everyone is entitled to a lawyer. If you can't afford to hire a lawyer, you are going to get one, either though a public defender's office, or private appointment. Obviously, this limits the number of available clients; lawyers are competing for clients that have at least some ability to pay. Not everyone has the ability to come up with a substantial fee, and there is a need for lawyers to represent those people.
 

The two  models are not absolute, and you will see good lawyers with a high volume practice, or taking cases for a lesser fee.They have made that choice; many will make exceptions, even if they are in low volume practice. They voluntarily make that choice though, and its not a matter of necessity. Hopefully you never need to hire a criminal defense lawyer (yes I know I would have to find something else to do), but if you do, realize what you are paying for.

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It's now a  new year - do you feel any different? Can you tell it's now 2009? I got up this morning, and as usual read the paper's recap of 2009, and predictions for 2009. I then went to the blogs to see how many end of the year/start of the new year blogs there were - a lot. Everyone seems to be making resolutions - some of them probably the same ones that were made at the beginning of 2008. Since everyone is focusing on 2009, I thought I would offer a more limited perspective. I realize this has almost nothing to do with criminal, but I wanted to get it down somewhere - after all, why else have a blog.

I've wondered why have such a pre-occupation on the start of a new year. I understand the need for new beginnings, and the start of a new year is a good time to do that. I also appreciate the need to focus on what has gone on before, and how we would like to things to be in the future. The beginning of the new year seems to be the universal time for reflecting on those things. There's nothing wrong with that, and I've spent some time over the last few weeks doing exactly that. Unfortunately, if you are like most people, your plans and resolutions will be forgotten within in a few weeks. If you  make a resolution, and stick with it until February you are truly in the minority.

My resolution for the new year is treat each day as the end of a year; reflect on what occurred that day, and resolve what to do better (or maybe the same) the next day. Each day can be the beginning of a new year. Maybe you didn't follow through with a resolution - so what, you can start again tomorrow  There's no guarantee we will be here tomorrow, or until December 31, 2009. Having goals is a great thing, but we need to assess how we are doing each day.

So have a great New year - each day of 2009.

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Probably most have seen the story out of Prescott, Arizona.  where 38 year old lawyer Damon Rossi was arrested for his giving his client a piece of candy! It seems that Mr. Rossi had asked the officers in charge of his shackled client if he could give him a piece of candy, and they told him no. Rossi went ahead and did it anyway, which was probably not the wisest thing to do. Nothing was done at the time; instead, the deputies turned the matter over to the sheriff's department criminal division, and they decided to obtain an arrest warrant. They then went and arrested Rossi at his home, and took him to jail.

I'm not condoning what Mr. Rossi did, because it was a stupid thing to do; frankly, I don't have a lot of sympathy for him. If an officer tells you not to do something, you don't do it. If he didn't agree with the decision, he could have taken it up with a supervisor or the sheriff. Or he could have given the candy to the deputies, and asked them to give it to the client, after they made sure there wasn't any contraband. So he certainly can't claim the moral high ground on this.

On the other hand, you have to wonder whether obtaining an arrest warrant is the way to handle the situation. I'm not sure what the offense is - I guess its providing contraband. Technically, it might fit the definition. However, I don't think many prosecutors would want to argue before a jury that candy is contraband - especially right around Christmas.

Another problem I have is going to his home to arrest him. I'm sure he would have turned himself in. Were they worried he was going to run. Or maybe they worried he would show up with a pocket full of candy. Lawyers routinely obtain agreements from officers to notify them when a warrant is issued, so the client can turn themselves. It makes sense to do so, because they have better things to do than tracking someone down to serve a warrant when there is no reason to do so.

I'm sure this will all work itself out, but I think it is indicative of a bigger problem - the trend toward over-criminalization, or making everything a crime. Not everything is, or should be a crime. We seem to have developed a mentality that we need to regulate everything through criminal law. As a result, almost anything can now be a crime. We all know the results that has had on the jail population. But I wonder if it doesn't have more subtle results - do we start seeing right and wrong as whether it's legal or not? We can anything we want, as long as its not against the law?

I hope most people still have a moral compass, and they don't have to guess whether something is a crime or not. I still think most people never consider committing crimes - the idea of whether or not they would get caught isn't a factor. I only hope that we can continue live with those values - when we start having to guess at whether something is a crime or not, we will be in real trouble. I'm sure Mr. Rossi never dreamed he would end up being arrested in his home for giving out candy.

 

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I've read several posts recently on choosing a lawyer. There's also an ongoing debate on marketing for lawyers - some who think its a good thing, and some who don't. The marketing debate seems to be divided between lawyers just starting out, and those with established practices. Predictably, lawyers who are already established tend to look down on marketing Obviously that is not always the case, because there are some established lawyers who aggressively market themselves. For the most part though, the more established you are, the less you rely on marketing.

You would expect lawyers with experience to emphasize that, and for the most part they do. The question for those choosing a lawyer is just how important is experience? For good lawyers, experience is valuable. I'm just starting my 28th year, and I like to think I've learned a few things over those years. However, just because you've been doing it a long time doesn't mean you have been doing it well. The legal system doesn't demand a lot from criminal defense lawyers, and average, or below average lawyers can get by just fine. The test for effective assistance is a "reasonably effective lawyer", which basically means someone who is average. You don't to try a case perfectly, or like a great lawyer would, to be effective. That comes as a surprise to most clients, because they expect their lawyers to more than reasonably effective.

For good lawyers, experience is an asset. Not only do you have the experience of handling all types of situations, you also have built up a reputation. There is no doubt that prosecutors make decisions based on the reputation of the lawyer they are dealing with. If it's someone they know always plead their cases, there isn't much incentive to offer a good plea. On the other hand, if it's someone they know is going to make them work for everything, and isn't afraid to take a case to trial, they are going to more inclined to offer a favorable resolution.

The unfortunate fact for clients is that they don't know what a lawyer's reputation is among other lawyers. There are a few high profile lawyers, who are familiar to a lot of people. For the most part they are good lawyers, but that is not always the case - they may just be better at generating publicity. Just because a lawyer successfully handled a high profile case doesn't mean he always does that. I've seen cases where high profile lawyers performed terribly. On the other hand, I've seen cases where those same lawyers performed miracles.

One of the drawbacks of being a high profile or successful lawyer is that you have a lot of clients. Unfortunately, that often means you have less time to spend on each case. Some lawyers handle it by adding staff, or additional lawyers, while others try to limit the  number of clients. Even when you try to limit the number of clients its hard to say no to someone who you feel is getting screwed by the system. A lawyer may have the best intentions, and all the experience, but they also need the time necessary to devote to a case. I often look back longingly to when I first started. I didn't have many clients, so I could devote a lot of time to each case. I could spend hours working on the case, because I had the time to do so. Of course, a lot of that time was spent trying to figure things out. I was terrified of getting embarrassed in court because I didn't know some rule or procedure, so I tried to anticipate everything. Fortunately I no longer have to do that, which means I don't have spend as much time on each case - in other words, I don't have to re-invent the wheel each time.

In the end, experience is important, but shouldn't be the only thing you look for in choosing a lawyer. I think the intangible is how much a lawyer cares about their clients. Good lawyers view clients as more than dollar signs; they want to help the client first; that doesn't mean they will work for free, because they expect to get paid well for what they do. However, its a matter of priorities. The only way you can determine if a lawyer is truly interested in helping you is to spend some time with them; you should feel comfortable with them, and trust they have your bests interests in mind. After all, you are placing your life and future in their hands.

 

 

 

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The Dallas Historical Society believes they found a letter written by President Abraham Lincoln to a mother who lost 5 sons in the war. The contents of the letter have been published, but before now the original had not been found. While this discovery is interesting, what caught my attention was the letter itself.

Dear Madam,

I have been shown in the files of the War Department a statement of the Adjutant General of Massachusetts that you are the mother of five (5) sons who have died gloriously on the field of battle. I feel how weak and fruitless must be any word of mine which should attempt to beguile you from the grief of a loss so overwhelming. But I cannot refrain from tendering you the consolation that may be found in the thanks of the republic they died to save. I pray that our Heavenly Father may assuage the anguish of your bereavement, and leave you only the cherished memory of the loved and lost, and the solemn pride that must be yours to have laid so costly a sacrifice upon the altar of freedom.

Yours, very sincerely and respectfully,

A. Lincoln

Lincoln's ability as an orator and a lawyer is well known. His eloquence is certainly displayed in this letter. What I find sad is that this was probably not all that exceptional in its time. Lawyers were great orators, and also great writers. It was accepted that if you were a lawyer, you wrote well.

Unfortunately, writing among lawyers is a lost art. Very few lawyers write well; few even know how to write in manner that can be understood by the general public. Legal writing is taught in law school, but its focus is on how to write "like a lawyer". That generally means write in a manner no one can understand what you are saying. Over time, I hope I have learned to write more like a "normal" person, but old habits die hard. I big part of my practice involves written advocacy, so its important for me. I also believe judges welcome briefs and pleadings that are direct, and written in a less formal manner. Despite conventional wisdom, less is usually better.

Maybe its because the importance of written communication has waned over the years. We have become a visual society; television, and now the internet, has replaced the written word. Lawyers have recognized this shift, and now focus more on audio/visual communication. Power Point is now a common occurrence in courtrooms across the Country. You cannot go to a CLE program without a power point, and many offer sessions on how to communicate visually.

We will probably never go back to a time when the written word was so coveted. In my mind, we are worse for it.

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The pundits are already giving opinions on how an Obama administration is going to change things. With all the campaign promises, you have to expect substantial changes, including changes in criminal justice. Although criminal justice issues received almost no attention during the campaign, the President-elect has identified several issues he would focus on. As usual, Professor Berman is on top of this, and has already starting posting on this. He has identified several issues that will probably be addresse in an Obama administration  , which include:

• Disparities in the criminal justice system, which includes the significant disparity between sentences for crack cocaine and regular cocaine. It also include disparities in the frequency with which blacks and hispanics are stopped and searched, as compared to whites.
• Increasing ex-offender support to reduce recidivism.
• Increase the use of drug courts.

All those are good ideas, but they still have to get through Congres. Appearing to be soft on crime is never politically popular, as evidenced by the repeated rejection of attempts to reduce sentences for crack cocaine.

One thing he has not addressed is the tendency over the years to criminalize almost everything, and increase sentences across the board. The best way to be tough on crime is to advocate longer sentences. Common sense rarely prevails, especially when it comes to drugs.

The policies of the past have not worked - tougher sentences have not significantly reduced crime. instead of focusing on locking people up, we need to focus on preventing crime, and preventing those who are convicted from re-offending. The Federal Sentencing Commission has recognized this, and has started discussing alternatives to incarceration. That involves focusing on the cause of criminal behavior, including drug abuse. Drug courts have been a good start, and we need to expand that approach to other areas. We also need to provide more resources for treatment and rehabilitation; unfortunately, those programs have been the first to be cut when money is tight. Experience tells us that harsher penalties are not the answer, but it is still a  politically popular one.

Will an Obama administration be different? Only time will tell.

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Probably everyone has heard by now about the mother of a death row inmate who smuggled him a cell phone. The bright young lad used the phone to call a State Senator and threaten his daughters. Many of the people in prison are there because they don't have good decision making skills, and this young man certainly exemplifies that. No good can come from threatening a State Senator. Instead, a lot of bad things are going to happen, the first of which is you lose the cell phone, and the ability to communicate with the outside world.

I'm sure this young is the least liked person in TDCJ these days. A system wide shut down was ordered to search for contraband, which is probably going to turn up all sorts of things. They are also going to do what they can to make sure no one else gets a cell phone in prison, which apparently is more common than we all thought.

Instead of taking their typical knee jerk response, TDCJ would do well to look into the reasons behind the problem. One of those is the lack of phone service. Although they are looking into a service (from which someone will get very rich), there is currently no way for inmates to communicate with their families, other than mail and direct visits. Since many inmates are housed far away from their families, visits are often few and far between. The result is that many are effectively cut of from family contact while they are incarcerated. It's no surprise that they want to be able to have contact with the outside world. There is no doubt that cell phones are used for illegal activity, but I would guess most are used to communicate with family.

For the most part, TDCJ does not allow contact visits. That means that if you are going to smuggle something in, you need a guard. Some have commented that the low pay of prison guards encourages such activity; they need to make a little extra money, so they smuggle contraband. I don't buy that argument. Most people are not going to engage in illegal activity to make a little extra cash - at least that's what I would like to believe. I think it has more to do with the individual you hire than with what you pay them. That's not to say the amount of compensation is not a factor. You have to pay enough to be able to attract qualified people. If you don't, you are going to end up with people who don't have other options. That may not be an issue for vocations like teaching, but how many people really want to work in prison. You are going to have to raise compensation to attract qualified candidates, but then you are going to have to do the necessary screening to make sure you get the right person.

I don't have faith that TDCJ will do anything more than concentrate on enforcement. Until they address the cause of the problem though, someone is also going to be able to come up with a way to beat the system.

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How many people know today is constitution day? I'm a criminal defense lawyer, and I didn't know it - in fact, I didn't know we have one.

Chief Justice Roberts was interviewed, and not surprisingly said the "coolest thing" about the constitution is the Supreme Court. I'm sure a lot of people would disagree with him, since complaining about the Supreme Court seems to be a popular pastime for all ideologies. Some of the criticism is well deserved, but we should never lose sight of the important role the Supreme Court plays in our system. It is the ultimate arbiter of what the constitution means. They are not dependent on any political party, or popular opinion. In many cases, they are a check on public opinion. You need only look at segregation, and more recently the death penalty, to see how public opinion can go to an extreme.

We should be thankful we have a Supreme Court, and a constitution. At the same time, we should be ashamed at how uninformed the majority of the people are about the constitution. As lawyers, we should bear some of the responsibility; we can do better on educating the public, and our clients. Maybe constitution day is a good day to start.

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Everyone at some point says something you wish you could take back. You might say something without thinking, or it just comes out wrong. Prosecutors seem to do it often, perhaps because they get so carried away with preserving our way of life ;).

Williamson County District Attorney John Bradley definitely has to be in the running, for comments he made regarding a federal lawsuit recently filed by the Innocence Project.  They are trying to force Williamson County to let them test evidence from two murder cases, which they think are related. In one, someone was convicted, and is serving a life sentence. In the other, no one was arrested and the family wants the evidence tested (so much for representing the victims!).  In responding to the lawsuit, Mr. Bradley stated:

"Meanwhile, the public might want to remain skeptical of a defendant who to this day doesn't accept responsibility"

I guess what that means if is if you want to test evidence to prove you are innocent, you have to admit you committed the crime. Of course, if you admit you committed the offense, then you have no reason to test the evidence.

Let's hope he didn't think that one through. But then again, what reason is there to refuse testing in the first place, especially for a victim's family.

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I have posted before about the jail situation in McLennan County, and the discussion about whether to turn it over to a private entity. Yesterday the commissioner's resolved the issue for at least now, deciding to keep the jail under the Sheriff's department. I continue to believe that the operation of jails is something that should not be reduced to a dollars and cent decision, and they made the right decision.

I'm not sure the issue is over. At least the County judge is focusing on costs, which is his job. You cannot look at costs alone however, as there are many intangibles that must be considered when you assuming control over the lives of so many people.

Of course, I still wish they would focus on the reasons for overcrowding first. Until you address that, no matter whether its the county or a private concern, experience  has shown you cannot build enough jail space.

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According to the Associated Press, U.S. Representative Shelia Jackson Lee is calling for a congressional inquiry into the justice system in Harris. It appears that what triggered the request was the grand jury's failure to indict a homeowner who shot two people he thought were burglarizing a neighbor's home. With all the things coming out of Harris, you would think a refusal to bring charges would be a good thing. To be fair, she also lists other things, like the crime lab problem, and the District attorney's tasteless emails. But you have to wonder what the focus of such an inquiry would be.

I have no doubt there is plenty to investigate in Harris County. The crime lab has already been the subject of an investigation, and hopefully that has been addressed. There's also the issue of the disproportionate number of prisoner's on death row from Harris County. I'm sure there are numerous other issues I'm not even aware of. The problem I have is what could Congress do, other than make things worse.

Congressional inquiries are usually nothing more than a reason for politicians to get before the media. They rarely accomplish anything useful, and spend an awful lot of money doing it. I think there is even more of a problem when you mix criminal justice and politics - rarely do good things result. I'm sure there are deeper reasons, but you cannot deny that no politician wants to appear soft on crime . If you need proof, you only have to look at the continuing reluctance to deal with jail overcrowding.

I'm sure in a perfect world, good things could come out of such an inquiry. I'm afraid the opposite would be the case though, and we would be looking at more imaginative ways to lock people up. So let's hope this proposal stalls - I'm sure there are lots of other things to investigate!

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Today is July 4, and you are probably doing something with family - I know I am. Grills are fired up all over the country, and pools are in full use. Tonight, fireworks will be going off everywhere. Sometime during the day, I hope you stop and remember what we are celebrating.

The problem with holidays (think Christmas) is that many people forget the reason for the holiday. Today it was the signing of the Declaration of Independence. One of the most courageous acts ever done. Most of the signers probably believed they were effectively signing their death warrants. Fortunately for all of us, they believed strongly enough in what they were doing to think about more than themselves.

I think its  important to remember why this country  was founded.  Our founding fathers did not trust government  - they recognized that government 's derive their power from the people, and should be accountable to them. They also valued individual freedom, and the right of people to live their lives free from governmental intrusion. They were especially suspicious of those charged with enforcing the law - then it was soldiers, today its the police.

So what would the founding fathers think about our country today. I don't think they would be happy with the erosion of the fourth amendment. They expected people to be secure in their own houses - numerous exceptions to the warrant requirement have eroded that protection. I also don't think they would buy the argument that its necessary to enforce the law, and protect the public. They knew how that power could be manipulated, and abused.

One of the most common tactics today is requesting consent to search during routine encounters What do you think the founding fathers would say if asked for consent to search? I don't think it would be "go ahead, I don't have anything to hide". I think it would be an emphatic no, maybe accompanied by a few choice words.

Criminal defense lawyers should take time today to pat themselves on the back. They are the ones who ensure the government doesn't abuse its powers. They are the ones who ensure that the vision of the founding fathers is protected. They are the ones who remind us that the government exists for the people, and not the other way  around.

Have a great 4th, and enjoy all the activities associated with this holiday. We all need to recharge our batteries, and this is a great time to do it. Hopefully we can go back to the office on Monday with a little more passion for what we do.

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Since I've started to following blogs - which has only been a few months, I've noticed an increasing number of criminal defense related blogs. Austin lawyer Jamie Spencer is putting together a list, and soliciting blogs. So if you know of criminal defense related blog, send it to him at jamie@austindefense.com.

I'm interested to find out just how many are out there.

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You have to wonder whether there is more to the story. Police in Lakeville, MN apparently  implemented  a public service campaign to remind people to secure their homes and residences. It seems they do this in the middle of the night, as one resident found out. According to an AP story, police knocked on someone's door, and couldn't get anyone to answer - so they went inside. There were 4 children there, who were having a sleepover. They told the officer their father was upstairs, so the police went in and woke him up, and apparently asked if everything was alright. If I was awakened in my bedroom at 3:00 a.m. by a police officer, I would have to say no!

Maybe I'm too skeptical, but I wonder if there wasn't some other reason they wanted to go inside and look around. There's a doctrine called the community caretaking exception, which allows police to skip getting a warrant when they reasonably believe someone is in danger. I think this would be carrying it a little too far though.

All joking aside, stories like this show why our founding fathers wanted to be sure we had protection against unwarranted government intrusion. That's what the Fourth Amendment is for. While it is generally only an issue in criminal cases, it exists for everyone, to protect us all against unwanted drop ins.

Its worthwhile to remember that in many countries, this is nothing out of the ordinary. It's also worthwhile to remember that this why we, as criminal defense lawyers, do what we do.
Criminal defense lawyers are the ones who hold the government accountable, and in doing so, ensure that everyone  keeps the freedoms that so many have fought and died for. So that we can all go to bed, and expect only the alarm clock to wake us up.

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As criminal defense lawyers, we tend to focus on faults and shortcomings in the justice system. No doubt there are many, and there is a lot of room for improvement. At the end of the day, though, we still have the best justice system of world. We often forget that things we take for granted, don't exist elsewhere. Take the presumption of innocence for example - something that is one of the cornerstones of our justice. Mexico is just now putting that into their justice system.

They are also are implementing some other reforms - like public trials. Again, that is something else we take for granted.

We shouldn't stop pushing to make the system better, and addressing those cases where the system has not worked. But we should also stop every now and then and remember how lucky we are to even be able to do what we do.

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For many people, the Easter season is more than eggs and new clothes. It's about the central belief of Christianity - the death and resurrection of Jesus Christ. Most of us give some thought during this time to what happened almost 2,000 years ago. We know the story by heart. Since it involves a trial and punishment, its not surprising that parallels are drawn with the criminal justice system. In one post, the author provides an excellent description of the many infirmities in the proceedings leading up to the crucifixion. The conclusion of the post is that it was the ultimate mockery of justice.

You can't really argue with that; but I think you lose some of the impact of the story by comparing it to a criminal trial. No doubt it involved accusations and condemnation. However, the story had already been foretold thousands of years ago. Jesus faced what he had been placed on earth to do. We feel sorry for people who are unjustly treated, but in this case we can't separate the ultimate result from his suffering. By his suffering and crucifixion, he opened the gates to heaven for us all. Had Pontious Pilate had a backbone, or had he crowds recognized what was happening, our hope for eternal life would be in vain. I don't have the answers for how much of a choice everyone had, or whether they are ultimately accountable. All I know is that out of all this pain and suffering, we gained the possibility of eternal life.

So yes, it was a mockery of justice. For our sakes, thank goodness.

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