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

I don't know what to make of the Court of Criminal Appeal's decision this week to reverse Michael Hood's sentence. Earlier in the week  the court was soundly criticized for it's treatment of the affair between the prosecutor and the judge. A cert petition filed in the Supreme Court created great fodder for bloggers. As expected, Scott Greenfield, Jeff Gamso and Grits were among those providing insight. The most interesting post came from Rick Horowitz, who used a lot of **"s to avoid the censors. To me, the most interesting developments was an amicus brief supporting Hood that was filed by 21 former prosecutors and judges. I don't have to tell you how rare it is for a prosecutor to come out in support of a defendant - especially a death penalty defendant.

The Court of Criminal Appeals had done everything it could to downplay the affair; it wasn't really an affair after all, they just got together a few times. Given the court's history, the holding wasn't that big a surprise. What does infuriate me is former Judge Holland's response; she's upset that her reputation is being dragged through the mud - in her mind unfairly. The response isn't that different from Judge Keller's response to her ethics complaint - it was the lawyer's fault.

I don't know why, but it sets me off when I see double standards in play. It seems to be especially prevalent in the criminal justice system. For example, there have been more than a few prosecutors who don't mind going out and drinking to excess, and then driving home. If they get stopped, they would expect special treatment. Instead of empathizing with DWI defendants though, they come into court demanding stiff punishments and refusing to deal. Judges are no different; some get upset if they are someone in their family is treated the same way they treat defendants who appear before them.

Did Judge Holland ever prevent a prosecutor from destroying a defendant's reputation? I seriously doubt it. I also doubt she accepted the all too common excuse that someone else was to blame for their conduct.

The underlying problem in all this is that some in the criminal justice see defendants as different than them. They also may believe they would never be in that situation. In other words, its us versus them. When you see someone as different its easy to treat them badly - you don't even give it a second thought.

I've said before that I sincerely believe we will be judged by how we judge the least among us. Many problems with our criminal justice would be solved it we viewed criminal defendants as our neighbors. Granted, they may have made mistakes, and done some bad things. But so have we all.

 

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If you are indigent you are entitled to an appointed lawyer and free record on appeal. Sometimes there is an issue of whether the defendant is truly indigent. That was the situation in a recent case out of the Texas Court of Criminal Appeals - McFatridge v. State.

The defendant was convicted of DWI, and requested an appointed attorney to pursue the appeal. The court reporter challenged the indigency affidavit, claiming the defendant had enough money to pay for the $3,000 record. The contest was based on a conversation during trial where she claimed the defendant offered to trade antiques for a copy of the record. (can you guess where this comes from?)

After conducting a hearing the trial court determined the defendant had real property worth $6,670 and personal property worth $3,000 (i.e. the antiques). The court of appeals affirmed that decision, finding the defendant failed to rebut the evidence of indigency. In doing so, the court found that although there was no evidence of what the cost of an appeal would be, it shouldn't exceed $6,670.

There are several interesting things about this case. One is where the court came up with a reasonable fee for a DWI appeal. I'm not sure when the last time any judge on the Court ever handled a defendant's appeal, so where that comes from certainly isn't personal experience.  Might some lawyers agree to handle a case for that amount - maybe so. But to obtain representation,they are going to have to exhaust all their assets. Should we require defendants to do that?

The second unusual fact about this case is that it started with the court reporter. Normally it's the court that contests indigency determinations. Here, the court reporter initiated the process - was it to make sure she got the furniture?

Norm Pattis has started a discussion on a universal defender system. I think there is a lot of merit in that. There is no doubt that the middle class cannot afford lawyers for serious crimes. If they can afford a lawyer to represent them at trial, few have any money left to pursue an appeal. Not only do you have to pay a lawyer to handle the appeal, you also have to pay the court reporter. No one should have to choose between appealing a conviction and exhausting all their assets.

The criminal justice only works if you have access to it. I'm not sure you can say Ms. McFatridge truly had access to the justice system - there  has to be better way.

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I just got back from attending a forensic training for capital litigators in Arizona. That was on top of the annual TCDLA forensic seminar I went to last month (which was in conjunction with the Innocence Project annual meeting). I admit I'm interested in forensics - primarily because it seem to be such a big part of many of the cases I get involved in. It's especially prevalent in post-conviction cases - where bad science was often an factor. Just think arson.

Forensic training for lawyers is relatively new - and long overdue. Forensics can be a critical part of many cases - and it extends far beyond the basics such as DNA. Unfortunately, many lawyers are still undereducated on forensics. They may become aware when a forensic issue becomes an issue in their case, but science offers much more. In the past we have too often left this up to the experts; bad results have followed, because we didn't enough to ensure the experts we retained knew any more about what they were doing than the state's experts.

There are more areas now where science can be used by defendants. We can't use it if we don't know about it. So go out and learn more about science and forensics. You might find it interesting, and get hooked. More importantly, it might help your client.

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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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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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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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Its not surprising that there is a lot of discussion about the conviction of Sen. Ted Stevens. He's generated a lot of it, by taking the offensive and refusing to accept the verdict. Despite requests to resign, he kept his name on the ballot, and insisted he has not been convicted. The voters apparently weren't too concerned, as he was re-elected with a convincing margin. the big question now is how long can he keep his seat.

The answer to that question depends in part on whether he has  actually been convicted yet A criminal conviction generally involves two things - a judgment and sentence. Right now Sen. Stevens has been convicted, but not sentenced. So currently  there is not a final conviction. Once he is sentenced though, what happens?

There is no doubt he will appeal, and it doesn't look like he is going to lack for issues. At the top will be the juror who was excused after lying about her father's death.

Under the federal sentencing guidelines, he's sure to get penitentiary time; to stay out, he will have to get an appeal bond, which is not automatic in federal court. To obtain an appeal bond, you have to convince the court that there is good chance your appeal is going to be successful. His status as a United States Senator is not supposed to be a factor, but it would be hard to ignore. It certainly worked for Wesley Snipes, who was allowed to stay out while he appealed his conviction.

Whether or not he keeps his seat may depend on whether he stays out - obviously he can't serve if he is in jail. The question will be what happens if he stays out - he will have a conviction, but in most situations it is not considered a final conviction because there is always the chance it could be reversed on appeal. Ultimately it will be up to Congress - although he's been in a long time, it probably isn't going to help that the Democrats took control.

The answer to the question is that he probably will be treated differently. But then, would he have been prosecuted if he had been anyone else?

A few of the posts on this issue are collected at Sentencing Law and Policy.

 

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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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Intoxication manslaughter cases have been in the Waco news later. Several weeks ago, a young girl was sentenced to 2 years for the death of her cousin. They had both been out drinking at a party, and had a wreck on the way. During the trial, the victim's parents pleaded with the jury to not send her to prison.

Last week, a young man was given 30 years for the death of a mother, and injuries to her children He had been passing in a no passing zone when he collided with the victim. The wreck killed the mother, and seriously injured one of the children. Obviously, the wreck devastated the mother's family. It also devastated the defendant's family. His brother had been killed several years earlier after drinking too much, and driving his truck into a ditch.

This week a defendant decided to plead guilty instead of going to trial. She had been out drinking with friends, including the victim. The victim had also been using drugs. They ultimately got into a fight, and he got out of the car, and the others left. They came back, and ran over him, killing him - he was lying in the road at the time. She agreed to 8 years instead of going to trial. When interviewed, her law stated it was not a good time to be charged with McLennan County. Obviously, the verdict the previous week influenced her expectations o what could happen.

So how come one defendant gets 2 years, and another gets 30. The easy answer is that different juries may look at cases differently. Still, that doesn't really explain the difference between those two results. Even when plea bargains are involved, there often appears to be substantial disparity between similar cases.

It's no secret that the majority of cases are resolved by plea bargain. When trying to negotiate a plea, both lawyers are trying to guess what a jury would do. The defendant does not want to agree to more time than a jury would likely assess. The prosecutor also does not want to offer substantial less than what a jury would assess. When trying to guess what a jury will do, both sides have to evaluate all aspects of case. That includes the facts of the offense, and a defendant's prior history. Although it shouldn't be a consideration, the circumstances of the victim must also be considered. (that will be left to later)

Plea bargaining has a lot of similarities to gambling, and each defendant's attitude towards risk must be taken into consideration. Some people want to know what will happen, and stay away from risk. For them, plea bargaining allows them to know beforehand what is going to happen. Others enjoy risk. For them, they may not shy away from the risk of a trial, where they might get a lower sentence, or one substantially higher than is being offered.

Another factor which cannot be controlled is the prosecutor assigned to the case. Policies vary among Counties, but almost everywhere prosecutors have some discretion when making offers. In some counties, that discretion is almost unlimited, which creates a real problem for criminal defense lawyers. One prosecutor may be more lenient than another, and the luck of the drawer determines whether a client gets a low offer, or a high  offer. That is one of the more difficult things to explain to clients when they see other people coming out substantially better than they are. It is impossible not to compare cases, and everyone does it.

Just as the prosecutor makes a difference, so does the defense lawyer. Prosecutors know some lawyers have a reputation for pleading everything out, and avoiding trials. They also know other lawyers are going to fight for their clients, and aren't afraid to go to trial if they think that is he best strategy. Without a doubt, the latter are the ones who are most effective in negotiating favorable agreements.

In the end, there is no formula or rule you can use to evaluate a case. There is no substitute for experience. That is the only way you can know how juries and prosecutors evaluate cases. Unfortunately, that leaves everyone with their own opinion, which they won't hesitate to share - all you have to do is look at the comments on most news web sites. Of course, that is also one of the things that makes this Country great.

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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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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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I was in court the other day, and caught part of a hearing where a defendant was complaining about his lawyer. One of the complaints is one we hear all the time - he hasn't showed me all the evidence the State has against me. The judge tried to explain to him the rules of discovery, but like most people, he found it hard to believe.

I think  most people would agree that there is nothing more serious than facing a loss of your liberty. If you are going to have to defend yourself, you want to know what evidence the government has. Most people believe you are entitled to that - after all, we always hear about all these "rights" criminals are supposed to have. How can a proceeding be fair if you don't know what evidence is?

The reality is that there is no such thing as discovery in criminal cases. Under the rules, the State only has to provide copies of your client's statements, and any expert reports (e.g. drug analysis, DNA results, etc..) They do not have to provide offense reports, or witness statements. You are only entitled to those after the witness testifies - so you can cross-examine them. There's an old joke about waiting to try the case to find out what the facts are, but that could happen.

Thankfully, most prosecutors will open their files, and allow lawyers to look at what they have. You have to then sit down, and take notes on what you see. Some more enlightened prosecutors actually provide copies of whatever they have.  Not only is that fairer, it also helps resolve cases. It's hard to decide what to do when you don't know what the evidence. It's also impossible to advise a client on whether or not to go to trial when all you have is the prosecutor's assurance that he is guilty. You need to know what the evidence is, and the prosecutor is in total control of the flow of information.

In contrast to what you have access to in criminal cases, in civil cases you can obtain almost anything. Most of the time is civil litigation is devoted to discovery. You can file interrogatories, requests for production and take depositions. In the process you can learn everything about the case, and the parties. You can sue someone for $1,000.00 and find out almost everything about them. If you look at the rules of discovery, you would think civil cases are  more important than criminal cases.

Discovery reform has been addressed in the last several sessions of the legislature, without much success. Prosecutors are obviously reluctant to turn over what they have - they like it the way it is. As with most criminal justice issues, anything that appears to be favor criminal defendants is opposed. That belief system will rarely succumb to logic and common sense.

The fact is that adopting uniform rules of discovery would streamline the criminal justice process. Access to information can do nothing but help move cases along. When you know what the evidence is, you can make an informed decision. Providing that information early means cases can be resolved quicker. Even if the case has to go to trial, what's wrong with a defendant knowing all the evidence?

The legislature will meet again soon, and you can always hope this session will produce something. I'm not going to hold my breath though....

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Mark Bennett recently posted on the long awaited exoneration of James Blair. That story has been covered elsewhere. In case you don't know, Blair was convicted and sentenced to death for murdering Ashley Estelle. Many people at least know Ashley's name because of Ashley's law, which was enacted as a result of her death. A critical piece of evidence against Blair were hairs, which the State claimed matched Blair. Scientific tests were subsequently able to exclude Blair. More recently, genetic material under her fingernails also excluded Blair. After an exhaustive re-investigation, Collin County District Attorney John Roach finally concluded that there was not enough evidence to prosecute Blair again.
The investigation included 5,000 man hours, and almost $50,000. Mr. Bennett's comment was that more money was probably spent on the investigation than was spent on Mr. Blair's original defense.  He's not the first to point out the lack of resources devoted to defending capital defendants. You only have to  look at high profile celebrity prosecutions to discover what a difference money makes. Resources (which includes money and time) make a difference in most cases. Unless you  have an extremely wealthy client, defendants are always at a disadvantage.

I don't have the answer, but I can identify the problem. You only have to look at the recent exonerations to see what a difference money and time can make;although certainly not all, many of those wrongfully convicted may have been cleared if they had access to all the resources the government used to prosecute them.  Unless we devote the resources to defending those whose liberty the government is trying to take away, there is always going to be injustice.

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Today the Supreme Court decided United States v. Rodriquez, which involved a sentence imposed under the Armed Career Criminal Act. Basically, that Act establishes a 15 year minimum sentence if the defendant has 3 prior qualifying convictions. The issue in the case was whether the defendant had a qualifying conviction for a "serious drug offense" . To qualify, the conviction has to be for an offense that has a maximum term of imprisonment of ten years or more. In the state of Washington, the offense the defendant was convicted of had maximum term of 5 years, unless the defendant had a prior conviction, where the maximum sentence was 10 years. The defendant had a prior conviction, but was only sentenced to 48 months. Thus, the issue was whether the recidivist provision should be considered in determining the maximum sentence.

The court held that you should use the maximum sentence that could be imposed, which was 10 years. The court also pointed out a distinction, which will apply in Texas. Where notice of an enhanced sentence must be given, as in Texas, the enhanced sentence is not applicable unless the notice has been given. For example, a 3rd degree felony can be enhanced to 2nd degree with a prior felony conviction. If no notice is given, then the maximum sentence for purposes of the ACCA would be that for a 3rd degree felony, which is 10 years. Of course, that is still 10 years or more, so it could still qualify if it meets the other criteria.

The bottom line is that  this ruling is going to have little, if any, effect on using Texas convictions.

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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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