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

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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In the last session of the legislature they revised the self defense statute, to allow a person to use deadly force in defense of his home. The law was named the "castle doctrine" - i.e., your home is your castle.

A jury in El Paso apparently relied on this defense, and found a defendant not guilty in the death of a 13 year old boy. I'm sure the legislature had in situations where someone breaks into your home, and you believe you are about to be attacked. The facts in this case were far from that. The following is an excerpt from the AP story:

Gonzalez had endured several break-ins at his trailer when the four boys, ranging in age from 11 to 15, broke in. Gonzalez, who was in a nearby building at the time, went into the trailer and confronted the boys with a 16-gauge shotgun. Then he forced the boys, who were unarmed, to their knees, attorneys on both sides say.

The boys say they were begging for forgiveness when Gonzalez hit them with the barrel of the shotgun and kicked them repeatedly. Then, the medical examiner testified, Anguiano was shot in the back at close range. Two mashed Twinkies and some cookies were stuffed in the pockets of his shorts.

Another boy, Jesus Soto Jr., now 16, testified that Gonzalez ordered them at gunpoint to take Anguiano's body outside.

Gonzalez said he thought Anguiano was lunging at him when he fired the shotgun.

Death for stealing twinkies seems a little extreme, even for the most extreme supporters of "law and order". Reading between the lines, what looks like happened was that the defendant got mad, and lost his cool. While I wasn't there, I find it difficult to believe he thought his life was in danger from a group of teenagers on their knees, with a pocketful of twinkies.

The defense lawyer did an excellent job for his client. In the end, the jury determines whether someone acted in self defense. As a citizen though, it doesn't look like a case for self defense. No matter how you look at it, death for a 13 year old breaking into a house doesn't seem justified.

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

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

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

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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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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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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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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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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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Sometimes its hard to come up with a defense a jury will believe. You generally need something more than I "didn't do it". Most good lawyers develop a "theme of the case" early on, and use that them throughout the entire trial. Sometime you have to think outside the box. Just how far "outside the box" is shown by a Japanese lawyer. His client, a Japanese professional model, had been charged with trespass. It was alleged she kicked a hole in the door of her boyfriend's apartment, and entered. Apparently she is fairly well endowed, which was the basis of the defense. Although she was convicted, the Appellate court acquitted her. They found that given the size of her bust, she could not have squeezed through the door. You have to wonder what kind of evidence they presented at trial?

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