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

The Texas Court of Criminal Appeals decided an unusual writ case last week, which contains some disturbing admissions - at least they are disturbing to me. Hector Medina was appointed extremely competent lawyers to pursue an application for writ of habeas corpus in his death penalty case. His lawyer made a tactical decision to submit a cursory writ, which was only four page long. His reasoning - which I don't fully understand or agree with - was that he wanted to change the pleading rules in habeas cases.

The court recognized the writ was not complete, and there was probably a lot more there. However, they couldn't decide what to do. If they denied the writ then Mr. Medina had lost his chance at relief through post-conviction proceedings. They couldn't force the lawyer to re-file, nor could they find him ineffective because they have already held that there is no right to effective assistance in a writ proceeding. So they came up with a new approach - they found the writ was not a "cognizable writ application", held the lawyer in contempt and appointed new counsel.

All that's fine and good - at least Mr. Medina is not going to be executed without having presented a complete writ application, which the Court will probably deny. The disturbing part comes in the dissent of Justice Keasler, which points out that the application in this case is no different from others they have denied on the merits. He noted that during his time on the court he had seen a number of applications that were just as poorly prepared as this one, and they were all denied.

The disturbing part of that statement is that he acknowledges the Court knows they are denying relief when they know one someone has not been properly represented. Since you don't have the right to effective assistance, it's too bad. To me that is inexcusable.

If you are going to execute someone you should only do so after their case has been fully reviewed. Yet the court is affirming death sentences when they know the person's case is not being fully reviewed. While you would hope all lawyers would take their jobs seriously the said fact is we know they don't. The court shouldn't be able to pass the buck, and say "that's not my job."  I would like to think this is a step toward that, but I'm not convinced.

If nothing else, this should show just how screwed up our death penalty system is.

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If you follow this blog you know I am critical of the use of forensic science in criminal cases, especially when guilt or innocence depends on the opinion of some expert. In my opinion, forensics should never be used to determine guilt or innocence. Far too often the opinions put forth by experts are subjective, and based on inherent biases. Science also changes - or at least the understanding of certain things changes - which may make an opinion that was valid when given, no longer acceptable. Witness arson cases, where thousands of convictions have been based on nothing more than myths and old wives tales.

So what happens when an expert is called upon to reevaluate their opinion, and decides it is no longer valid. That was the situation presented to the Court of Criminal Appeals in Ex parte Neil Hampton Robbins. Mr. Robbins was charged with capital murder, based on the death of his girlfriend's 17 month old child. The state's case was based largely on the testimony of a medical examiner, Dr. Patricia Moore, who performed the autopsy. She testified that the child died from asphyxia due to the compression of her chest and abdomen. She was subsequently called on to reevaluate that opinion, and stated she could no longer stand by it.

 The problem any defendant in this situation faces is establishing a legal basis for relief. Once a defendant is convicted, he must establish actual innocence to obtain relief. That is an extremely high burden, which is rarely met in any cases other than those involving physical evidence - such as DNA. In this case Mr. Robbins fell far short of meeting that burden, because Dr. Moore testified that her current opinion was that the cause of death was undetermined. Essentially she could nott rule out that the death was the result of asphyxiation , but she also could say it was. The endresult is that Mr. Robbins was denied relief. In a issenting opinion, Judge Cochran pointed out that the case " raises a novel and difficult issue for the criminal justice system." She agreed that actual innocence had not been established, but believed Mr. Robbins should get a new trial because he did not receive a fundamentally fair trial based upon reliable scientific evidence. A view, which unfortunately was only shared by three other justices; she believes that the case should be retried to ensure the accuracy of the verdict.

I believe justice Cochran is spot on. How can you have any faith in the criminal justice system, if a defendant is based on evidence that would probably not support a conviction at the current time. In other words if Mr. Robbins were retried he would probably be found not guilty. Yet he will have to remain in prison probably for the rest of his life because he cannot meet some arbitrary legal definition.

 Mr. Robbins also tried an alternate approach which was to argue that Dr. Moore's testimony was false. The court rejected that claim, because the testimony was not in fact false.

Along with  justice Cochran's opinion, the bright spot in this case was the opinion of the newest justice, who has recently been appointed. Judge Alcala dissented, believing Mr. Robbins should be granted relief because he was denied due process of law.

 As long as the criminal justice system is going to rely on scientists to determine guilt or innocence, it needs a process to remedy this type of situation. It occurs far too often, and defendants basically have no relief. That is not right, and hopefully someday at least one other justices will agree.

As a side note, the Texas Legislature has actually addressed this in the last two sessions. A bill was introduced - and approved - to reform the habeas statute to allow this type of claim. Regrettably, it has died both times as a political casualty of arguments over other bills. Even though everyone agreed, it has still not passed. Maybe one day partisan politics will allow a good piece of legislation to survive - at least one can hope. For the time being, defendants like Mr. Robbins have not remedy.

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The Court of Criminal Appeals recently attempted to answer the question of when advances in science can be used to obtain relief after conviction. The usual situation is that a defendant was convicted years ago, and a key part of the State's case was forensic evidence. Since science (or at least our understanding) evolves, what was once well established may now longer be. Exhibit A is arson. In the past the so called experts relied on pour patterns and other indications which we now know exist in almost every fire. The problem is what to do with this new evidence.

The Court of Criminal Appeals has held that a defendant can obtain relief through habeas corpus when they can establish actual innocence based on newly available evidence. You cannot simply argue you were actually innocent; which would basically be retrying the case. You must establish  there is new evidence available that establishes your innocence.

The court address the issue of "new evidence" in Ex Parte Spencer. There, the defendant presented a forensic visual expert (I haven't heard of one either -  it sounds pretty cool), who testified the witnesses could not have seen what they claimed they saw. The court held that was not newly available evidence. They focused on whether the evidence as it originally existed could be retested or reevaluated. Since the scene had changed, and conditions were different, that could not be done..

In my opinion, the court fell into the trap of evaluating everything against DNA evidence. There is no doubt that everyone considers DNA evidence to be the gold standard, and as a result everything has been compared to that. In DNA testing the original evidence is retested, and there is no problem in doing so. However, not all advances in science fit easily into that categorization. Arson is one that immediately comes to mind.

Under the test adopted by the court, the advances in our understanding of fire dynamics would not qualify as new evidence. The scene would have long been destroyed, and pictures would probably not be sufficient. I'm sure there are other areas that will pose the same issues.

As long as forensic science is used in criminal cases, the courts must be open to reevaluating those cases when necessary. Science, and our understanding of different things is constantly evolving;. what we hold as truth today, may deem be discredited tomorrow. To allow a conviction to stand on discredited terrorist testimony can certainly not be considered fair or just.

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Recent advances in science have created a problem in handling old cases where faulty science was used. A problem that is if you are interested in seeking justice. Unfortunately, justice is not the primary focus in post-conviction litigation. The system is far more concerned with protecting old convictions - "finality" is the catch phrase used to wipe problems under the rug.

The problem is highlighted in Scott Greenfield's recent post about problems with the Nassau county crime lab. The problem is what to after you discover the problem. As he points out, the fact that there was an error doesn't mean that a defendant is innocent. No doubt that will be the primary argument of the DA's office. After all, you wouldn't want to let a guilty defendant go just because the lab screwed up would you?

In some cases establishing error is the equivalent of establishing innocence. If the lab says the substance was cocaine and it was actually baking soda, then the defendant can't be guilty of possessing cocaine. However, the link is not so clear in other cases. Evidence - such as DNA - might place a defendant at a scene. There may be other evidence that puts the defendant at the scene, and in those cases he would probably have been convicted without it. But what if it's an important link?

Regular readers - all 2 of them - know I have been involved in several arson cases. In those there is no doubt the evidence establishing arson was faulty. However, in most cases you can never conclusively establish innocence. If it wasn't arson, it wasn't a crime. Proving a negative is always difficult - if not impossible - to do. Just because the State can't prove it was arson doesn't mean you can prove it wasn't.  Circumstantial evidence is always an important part of those cases, and the State will still emphasize that - exhibit A is Cameron Todd Willingham.

Hopefully, the Texas legislature is going to address the problem in part by amending the writ laws. The goal is to make it easier to use scientific evidence; generally you need new evidence, and that is often  a problem when alleging faulty science. the problem that still remains though is how to establish harm. If you have to establish innocence, there will be few defendants who benefit.

My solution is to shift the focus away from innocence. Instead, look at whether there is any doubt that the defendant would be found not guilty if the current science was used. In other words, if the State didn't have experts who could testify that the fire in Willingham was arson, would he have been convicted. No matter how much Governor Perry and his henchman scream, I think everyone else agrees the answer to that question must be no.

Innocence is great if you can prove it. It's not the controlling inquiry though. Sometimes justice requires releasing those who may not be able to establish innocence; if they never would have been convicted in the first place is it really fair to make them stay in jail? I think not.

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If you practice criminal defense law you are going to be the recipient of ineffective assistance claims. You may have done the best job possible, but your client is still not happy. You can't change the facts, and some are not good at accepting reality. If the client is doing time they will have a lot of time on their hands. They want out, and if they think attacking the lawyer will accomplish that, then on they go. The truth is that ineffective assistance claims are rarely successful; but that doesn't keep clients from making them.

All too often the receipt of an ineffective assistance of counsel claim turns an advocate into an adversary. I understand the emotions that can arise; you put your heart and soul into a case, and how dare they say you were ineffective. You might want to lash out - which unfortunately some attorneys do. Which brings it to the reason for this post.

One of the first things you learn in law school is that everything a client tells you must be held in confidence. You can't disclose it no matter what - and that is the way it should be. There are a few exceptions, and one  of those is when it is necessary to defend yourself against a claim against you. If a client says you never discussed probation with him, and he actually told you he didn't want probation because he knew he couldn't make it, you don't have to keep that to yourself. The question however is how much you can disclose, and when you can disclose it.

The ABA recently issued an opinion on this issue. One thing the opinion says is that a lawyer can only disclose information in a judicial proceeding - in other words, if he is testifying in court. The other is that you can only disclose what is relevant and necessary to answer the claim.

I have issues with an attorney who all the sudden becomes best friends with a prosecutor when a claim is made. Some volunteer to turn over their file - which is clearly improper. Others tell the prosecutor everything about the case - including what a worthless human being they think the defendant is (remember David Martin - Cameron Todd Willingham's trial attorney). This opinion is a good reminder that you remain an advocate for a client, even if they complain about your representation.

That said, there are some issues with the opinion - mainly because the authors don't seem to have a clue about how the writ system works. For starters, live hearings are almost never conducted at least in Texas. Instead, hearings are usually conducted by affidavits. In contested cases a judge may designate the issues they want evidence on, and direct counsel to file an affidavit. Is that consider a judicial proceeding? What about the prosecutor attaching an affidavit to their response - before the judge has ordered a response? In my opinion, I don't think that is covered.

It would have nice for the ABA to obtain input from lawyers who actually do post-conviction work before delivering an opinion. My guess is they did what they usually do, which is turn to law professors; who often have no clue about how things actually work. However, I do commend them for addressing the issue. If nothing else it reminds us that the attorney client privilege doesn't disappear just because a client says bad things about you.

All criminal defense lawyers need to read this opinion, and re-read before responding to an ineffective assistance claim. It's a good reminder that you are always an advocate for your client - even after the representation ends. The best advice you can give anyone is to not do anything in haste. Allow yourself to cool off, and recognize it for what it is - an attempt by a desperate person to gain freedom.

And by the way - if you messed up admit it, and move on. You owe the client nothing less.

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Those lawyers who regularly file post-conviction motions often wonder whether the court actually reads them before they deny them. The process in most Texas counties is for the District Attorney to prepare proposed findings and present those to the judge. In the majority of cases those findings are signed without revision. I'm sure there are judges who review them to some degree, but I've also seen cases where it is obvious they didn't do anything more than put their signature on it.

I always thought the process was different in federal court. After all, they have law clerks who review everything and write memos and that sort of thing. Those are usually the top law school graduates, so you would expect them to get things right. A recent case out of the Fifth Circuit has me wondering just how much they look at what they are doing.

The case is Arnold v. Thaler, No. 08-50181 (5th Cir., January 5, 2011) The facts were pretty straightforward. Two plea offers were made, which the lawyer never conveyed to the client. Meanwhile, the prosecutor learned more about the defendant, and increased the offer. That offer - 40 years - was conveyed to the defendant and rejected. When he learned there was an earlier offer of 15 years he filed a motion for new trial. Everyone agreed that the earlier offers were never conveyed, and Mr Arnold submitted an affidavit stating if he had known of the offer he would have "considered" it. Nevertheless, the Court denied the motion. The reason was that he thought Arnold had rejected the offer; he had rejected an offer, but it was the 40 year offer and not the earlier offers. In other words, he didn't understand the facts.

The court of appeals probably recognized they couldn't affirm on that basis, so they came up with a new reason. They held that the new facts discovered by the prosecutor "changed the premises" of  the original offer. I have no idea what that has to do anything, but they thought it was important. Not wanting to confuse things, they didn't address the period between the making of the offer and the discovery of the new information - in other words the time during which the offer could have been accepted.

So now we go into federal court, and file a writ of habeas corpus. In his petition Mr. Arnold stated that if he had known of the offer he would accepted. He also submitted an affidavit stating the same thing, and explaining that is what he meant in the affidavit that was submitted for he motion for new trial. In other words he alleged everything the courts have said you need to prove to obtain relief; an offer was made and not conveyed, and had it been conveyed it would have been accepted.

This time it was the federal court's turn to ignore the facts. They denied relief, holding that nowhere in the pleadings did Arnold say he would have accepted the offer. Huh...It was in his petition and his affidavit. Maybe it wasn't all in caps. Thankfully the Fifth Circuit finally came to the rescue. They held that the district court's finding was "clearly erroneous".

You have to wonder how so many courts got it so wrong. I haven't seen the pleadings, so I don't know if there is bad handwriting or what. To be fair, I get a lot of inmate mail, and much of it is barely difficult to read and understand. They may have a good point, but it's buried in 20 pages of stuff that makes no sense, or has nothing to do with the case. Somewhere  along the line though you would think somebody would catch it.

I tend to believe that part of the problem is the desire to deny relief; no court likes to overturn a conviction, and they look for ways to avoid doing so.In fact, the whole post-conviction system is designed to prevent overturning convictions. Even with that though, there are certain claims the courts generally take seriously; the failure to convey plea offers is one of them. Courts also usually take notice when the District Attorney agrees with something.  As you can imagine, that doesn't happen often.

Some might look at this at an example of how the system works. I suppose that's true in some respects. But is that enough. Is it too much to expect  courts to get it right the first time? There were a lot of resources wasted in this case that could have been spent doing something else. I realize all courts are overworked, and have limited resources. But hey, that's what they signed up for.

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Scott Greenfield recently talked about a case in Missouri where a defendant was finally released after they concluded State officials didn't have jurisdiction to prosecute the burglary of a  post office. Unfortunately, it took the State more than 15 years to recognize this - oops. Unfortunately, the situation is not that uncommon. Everyone dropped the ball, starting with the prosecutor and the defense lawyer. What caught my attention was not the facts, but how relief was ultimately obtained.

Like many inmates, the defendant, he filed his own writ of habeas corpus. We see defendants challenge jurisdiction all the time - generally it's completely frivolous; such claims are often made by people who don't believe the government has any authority over them. To his credit, the judge who received the writ recognized it might have merit. He decided it needed to be developed further, and appointed a lawyer to do so - and here's what caught my attention. He appointed the lawyer to do it pro bono. How nice of him!

I'm sure the judge believed the lawyer would be happy to help right such an injustice - and maybe get a little publicity out of the deal. To her credit she took the case, and obtained the defendant's release - which I will admit is rewarding beyond any financial compensation you could receive. That's not the point though. My question is why does always fall to the defense bar to be ones who have to sacrifice?

For years death penalty appeals were handled by lawyers without compensation. Lawyers volunteered to handle those cases because they couldn't stand by and watch someone executed without a lawyer. It seems basic, but it never bothered judges, prosecutors or legislators. They were fine with it - which always made me wonder how much of a conscience they had. In Catholic Church terminology I wondered whether they had a "well formed conscience". Fortunately that's changed, and at least appointed lawyers are now provided - even if the quality is not always that great.

My question is why doesn't anyone else bear this burden. The prosecutor who prosecuted a case he had not jurisdiction over still gets his paycheck. He probably even went on to advance in his career, maybe even to be a judge. (I don't know any of this by the way) So does the judge - he continued to sit over cases, and put in his time for retirement. In short there is no accountability.

I wonder how much different things would be if judges and prosecutors bore some of the burden. Why leave it all up to the lawyers - after all we have families to feed also, and employees to pay. I wonder what would happen if the prosecutor and judge had to pay the lawyer's fee? Just a thought.

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Yesterday the Supreme Court issued its opinion in Beard vs. Kindler. This was a habeas corpus case. For those that don't know, habeas corpus is an incredibly complex and technical area of the law. Most decisions are based on procedure, and not on the actual merits of the case. If you want a thumbnail understanding of habeas law, just remember that everything is designed to ensure the defendant loses.

Federal habeas law is even more complex and technical. The idea is that State courts should be allowed to decide their own cases. One of the doctrines that has developed to ensure that is the "independent and adequate" concept. Simply put, if the decision is based solely on State law, a federal court will not review it. Most often that doctrine comes up in cases where the State court has decided the case on a procedural basis; in other words, the case was dismissed or rejected for some procedural reason.

Beard vs. Kindler is one of those cases. Kindler was convicted of capital murder and sentenced to death. While his appeal was pending, he escaped. He managed to remain at large for several years, and in the meantime the appeal was denied based on the fact that he had abandoned his claims by escaping. The State court reviewed the case only to determine if there was a basis for imposing the death penalty.

Kindler filed a state writ,which was denied. He then went into federal court. Although the reasons differed, both the District Court and the Court of Appeals addressed the merits of the case, and reversed. If there is one thing that has become apparent over the last several years its that a reversal in a habeas case has a high likelihood of beign reversed by the Supreme Court. So it wasn't a big surprise that the court granted review.

To consitute an independent and adequate basis, the rule must be regularly enforced. In other words, if the State courts only rarely enforce a procedural rule, they cannot argue that prevents the federal court from reviewing the case. The Court granted review in this case on an extremely narrow issue: if the court has discretion in applying a particular rule, does that mean it is not "firmly established and regularly enforced". The court answered that question in the negative, which was fairly obvious to everyone. In other words, the fact that the State court has discretion doesn't end the inquiry.

It is not entirely clear what Kindler's main argument was; it is clear the discretionary aspect of the rule was not the only argument. He also argued the rule applied by the court was not adopted until after his conviction, and therefore was not "firmly established". That would be an exepction, and the court recognized that.

In the end the Court sent the case back to the Court of Appeals to address the remaining claims. The court also refused the State's request to explain the doctrine further, and provide some guidance to the lower courts. The court's reason was that escape was not the "typical" type of default. I guess that means the court is still open to explaining the rules when a more "typical" reason comes before them.

Like the decision yesterday in Michigan v. Fisher I'm not sure this added much to our understanding of habeas law.

As a side note, Kindler is apparently an extremely resourceful criminal. He didn't escape once, but several times. The first time he went to Canada, and became somewhat of a celebrity when he fought extradition. When Canada finally gave in, he escaped again - using 13 stories of bedsheets tied together to do so. He remained on the lam for mor than two years before he was caught again. Oh yeah - he also escaped before his trial. If he llives for awhile, maybe he has a future as a consultant for prison security.

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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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