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

a recent editorial in the Dallas morning news championed the idea of creating an innocence commission in Texas.  The editorial was in response to a meeting last week in the legislature, which drew representatives from all branches of the judicial process, namely prosecutors, defense lawyers, police, and judges.  Senator Rodney Ellis is again introducing legislation to create such a commission.  One can only hope that it has enough support this time to actually have a chance of success.

Unfortunately, similar legislation in the past has been the victim of politics.  I participated in one of the committee meetings several years ago, and presented evidence along with Barry Scheck of the Innocence Project.  At that time, the idea of creating an innocence commission was strongly a opposed by the prosecutors, and died a quick death.

I believe the only way to effectively deal with wrongful convictions is the creation of such a commission, that includes an independent panel to review convictions.  The judicial process is not equipped to deal with these claims.  Granted, relief has been granted in a handful of cases.  However, most of those involved DNA evidence, and there was no argument that the person was actually.  The problem is with all the other cases, where there is no such convincing evidence.  Where there is any question, judges are hesitant to grant relief.  Unfortunately, that is one of the consequences effects of electing judges, who have to worry about the political ramifications of their decisions.

Prosecutors also fall short most of the time.  Law school teaches us all to be advocates for our cause.  We also are taught that we have an adversarial system.  Unfortunately, that system does not function well in this area.  Prosecutors too often oppose innocence claims merely because that is what they perceive they are supposed to do.  Most of the time it is probably not even a conscious decision.  No prosecutor wants to admit that they are responsible for prosecuting someone who is actually innocent, and often they refuse to seriously look at the newly available evidence.  Defense lawyers also bear some of the responsibility.  Too often frivolous claims are advanced, merely because someone is representing their client.  No one has an absolute right to present an innocence claim, and lawyers should not take on a case unless they are convinced first that the person is actually innocent.

I'm not naïve enough to believe that an innocence commission is not going to suffer some of the same defects.  However, it has to be a better way to process claims.  Let's hope this time that both parties can agree the time has come for an innocence commission in Texas.

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it's not too surprising that almost everyone is commenting on the Dallas district attorneys recommendation that prosecutors be held responsible for not disclosing favorable information.  While I certainly agree with Mr. Watkin's idea, I have somewhat different take on the issue.

Those of us who have practiced for a number of years, learned long ago that prosecutors never think anything is exculpatory.  I have even seen prosecutors argue that an identification of someone else is not exculpatory, because the police excluded that person as a suspect.  The obvious problem with putting the burden on the prosecution is that they always believe the defendant is guilty.  If you think someone is guilty, how can you ever believe something is exculpatory?  The standard practice has been to ask the court to review the file, and make an independent determination.  Sometimes that works, but again I have seen information that I believed was exculpatory, but not disclosed.

Civil lawyers are always appalled to learn about the discovery available in a criminal cases.  You can sue someone for a few hundred dollars  and be able to learn everything about them.  However, you can be fighting for your life, and not be told anything about the charges against you.  How can anyone think that is fair?  We can solve a lot of the problems simply by requiring the state to furnish defense lawyers with every thing they have.  There may be privacy issues,  but those can be dealt with.  If you are trying to take away someone's freedom, there is no reason why they should not know everything you know.  Of course, the prosecutors still may not know some things if the investigators don't pass that on.  But it certainly would be better than it is now.

We've been talking about everything else to prevent convicting the innocent.  There is no telling how many convictions could have been avoided, if only the defense had access to everything the prosecution knew.  This is a simple fix, and there is really no good reason why it shouldn't be implemented.  That's probably exactly why we will never see it happen.

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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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