Posted on February 23, 2009 by Walter Reaves

When judge becomes defendant

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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Posted on January 30, 2009 by Walter Reaves

Is a trial ever a waste of time?

I recently heard a prosecutor make the comment that a defendant was "wasting his time" because he wanted to go to trial. Sadly, I've also heard defense lawyers say the same thing. Usually its a case where the evidence of guilt is overwhelming, and there is no realistic chance to win. Sometimes its a case where the prosecutor has made an offer that's more than reasonable - i.e, less than the defendant will probably get from a jury or judge.

Such comments are always centered on the interests of the prosecutor and the defense attorney. Prosecutors usually have too many cases, which is why they make offers in the first place. They look at the situation as taking up time they could devote to another case - one they feel really does need to be tried. Some Defense lawyers on the other hand don't like to get stomped on, and don't like to handle cases they know they have no shot at.

What both forget too often is the interests of the defendant. Defense lawyers too often think they have to make all the decisions, because after all they are  the lawyer. Clearly, they do have to provide their insights and experience. However, the decision on whether or not to go to trial is not one the lawyer gets to make; its up to the client.

So why might a defendant want to go to trial in a hopeless case? No doubt, there are some who are incapable of assessing the situation rationally. Just like people who go in every week and purchase lottery tickets, they think they might hit the jackpot. Sometimes hope is immune from common sense.

But there are other defendants who just want their day in court. Maybe they've also copped out and taken pleas, and they are tired of it. Or maybe they just thing its time to get up and fight for themselves. If thats what they want, it's our job to give it to them.

I've had cases where the defendant just wanted to fight. Sometimes we came out better, sometimes worse. Even in those cases where they came out worse though (i.e they got more time than offer), I don't think some regretted it. That was the price they paid for their day in Court. They were appreciative that someone would get in a fight for them, even when the situation appeared hopeless

We need to remember the system doesn't just exist for the lawyers. It's really all about the defendants. When all they want is to fight, we need to give them the opportunity, and not complain about it. In other words, look at the situation from your client's eyes - after all, that is who you are representing. And for the prosecutor, your job is to try the case; you might learn something too.

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Posted on December 26, 2008 by Walter Reaves

Choosing a lawyer - how important is experience?

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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