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

One of the joys of a criminal defense practice is the client who "knows the law". Never mind that they didn't make it past the 9th grade, weren't that great in school when they did go. I mean how difficult can the law. All you have to do is know how to read. And if you don't understand what is going on, there is always someone in jail who does.

I cannot estimate the number of legal "debates" I have had over the years with clients. I take a different approach than many lawyers; I don't profess to know everything, and leave open the possiblity that somone may come across something truly useful. I've never had a client bring me something I didn't already know, but I have benefited occassionally from the different insight they bring.

I have the same discussion with everyone, which starts with something like "there's is a reason why you have to go to law school for 3 years". You often lawyers refer to being taught to think like a lawyer; while that is not always a good thing, there is a different approach you have to learn. Law school is not so much about learning the law - most of us have long since forgotten everything we learned in law school. If you went to law school 28 years ago (like me), what you learned is probably no longer what the law is now. What you learn is how to approach and analyze issues, and uncover the answer. in short, you learn a process, so you can find the relevant know when you don't already know it.

I also point out that I have taught in a law school - I taught a post-conviction procedure for several years. Law students are some of the "best and brightest" from their colleges. They had to have good grades, and score high on the LSAT to get in. Most breezed through high school with little effort. In short, these are some really smart people. Even so, I never had a student who I would turn a case over to without supervision. Since post-conviction procedure is a technical and complex area, I also never had a student who didn't have some difficulty in understanding the legal concepts - and these were students who already had at least 1 years, and most 2 years of law school under the belt. The point of that is if a really bright person with a college degree and some law school has difficulty understanding certain legal concepts, what hope does someone have with far less education and experience.

I also like to point out that the worst person to analyze a case is the individual involved. There is a reason why lawyers go to other lawyers when they have legal problems. You cannot objectively analyze a case when you are personally involved.

I've also tried to use the analogy to medicine. I'm not a genius, but I'm fairly bright. I had a high GPA and managed to get into and graduate from law school. I have the ability to read a medical treatise, and understand some of it; but I would never try to tell my doctor how to treat me, much less tell someone else what his doctor should be doing. I might ask questions, but I accept the answer, because I know he how everything "fits together".

Of course, all of this seldom dissuades them. They have read something, or someone has told them something, and they know its right. Fortunately most clients will eventually accept your advice; their willingness to do is generally dependent on the degree of trust you've built it. That is why one of the most important things a criminal defense lawyer should do is develop a relationship with their client.

Several years ago I had a situation which still bothers me. My client was facing a possible sentence of life without parole because the government had filed a sentencing enhancement. After a lot of work, I was able to get the government to agree to withdraw the enhancement. The client was facing a lengthy sentence, but it beat spending the rest of his life in prison. The problem was that he refused to believe the judge could sentence him to life. We discussed the issue for hours; we went over and over the statutes, and I provided him with research showing how the courts dealt with the issue. The problem was that he had a buddy, who had a case just like his; his buddy had his sentence reversed, and sent back to court. Of course, he couldn't remember the buddy's name, but he knew it was the same. He also a few case cites - I looked them up, and showed them to him. They were good cases - they just didn't have anything to do with his case. We went round and around; he would tell me he believed me, but he knew the judge couldn't  sentence him to life. We ended up going to trial; he got convicted and sentenced to life.

If there was ever a situation where someone was sentenced for being stupid, this was it. I know there wasn't anything more I could have done, but I'm still bothered by that  case. He let someone talk him into to making a incredibly bad decision. His buddy didn't have to do the time - he did.I know the decision was ultimately his, but he had some help. 

 I've been at this for 28 years, and I haven't found a good solution for it yet. There are always those who are going to not trust their lawyers. Our job as lawyers is to develop that relationship, so our clients know we have their best interests in mind, and we are fighting for them. For clients, either trust your lawyer, or find someone you do trust. Don't trust the guy who dropped out high school, but says he "knows the law". After all, if he is so smart, why is he still sitting in jail there with you?

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Thanks to Grits for this post. Most police departments rely on confidential informants out of necessity. The people who know about crime are usually are the ones involved in it. Some departments rely on informants more than others; its easy to make a case with an informant, and some officers may become too dependent on them. Such apparently is the case in Albuquerque, N.M., which ran this ad recently:

The Albuquerque Police Department put a want ad in the city's weekly newspaper for "people that hang out with crooks to do part-time work."

"Make some extra cash! Drug use OK. Criminal record? Not a problem." The ad in the Weekly Alibi prompted 93 calls during its two-week run before it was taken down last week, police spokesman John Walsh said.

He said some calls yielded valuable information in a drug investigation and two violent crime cases. Walsh said the ad will run again "as soon as the detectives feel they need the help" and it could become a model for other agencies

This story is from USA Today - if it was from anywhere else, I would have trouble believing it.

I can see all sorts of problem with this tactic, the most significant one being people willing to manufacture information to make some extra cash. We all know times are hard, and this is an offer of easy money. The ad targets drug users, and those with criminal records, which are probably either people not working, or having a hard time finding a job. You hope they verify any information they get before making an arrest, but if they are having to advertise for informants you have to wonder.

The problems with informants have been well documented. Behind faulty eyewitness identifications, they are one of the biggest factors involved in wrongful convictions. Most of those involved in the criminal justice system are looking at ways to limit their use, not expand it. So I hope this isn't a tactic picked up by other departments.
 

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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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Several weeks ago the trial of a prominent local civic leader ended abruptly with a guilty plea. While a mid-trial plea is not unusual, how this one came about was. Before the trial started, the judge refused to accept a plea that included 9 years in prison, and restitution. Apparently, the judge indicated he was not going to accept any plea that did not include at least 15 years in prison. At the time though, that was not even a possibility; the State had dismissed several counts that reduced the charges from a first degree felony to a third degree, and therefore the maximum punishment possible was ten years.

The judge was upset with the State for dismissing the charges, and accused them of trying to circumvent his authority. He eventually gave in, and at a break told the parties he was willing to reconsider the plea agreement. After additional negotiations, she accepted what appeared to be the original agreement.

The case raises questions about what role the judge has or should play in plea bargaining. The law is fairly clear that a judge cannot participate in plea bargaining; the question is when a judge steps over the bounds. A judge has the ultimately authority to accept or reject a plea agreement, so there was no problem with the judge refusing to accept the agreement. A judge walks a fine line when he states why he won't accept an agreement, especially when he indicates what he will accept. The line is far from clear, but at some point a court will declare a judge became too involved in the plea negotiations.

Why can't a judge take part in plea bargaining? The most basic reason is the inequality in power; neither side wants to alienate the judge who is presiding over the case. Another reason is based on the division of functions in the criminal justice system; the judge is supposed to be impartial, and not take sides. When the judge takes part in plea bargaining he comes down in favor of one side - usually its on the prosecution side. That position has to be  based on assumptions about the case, which may or may not be accurate. Also, a judge should be neutral; that neutrality is questioned when he takes a position on plea bargaining. If negotiations fall through, the court's decisions may be questioned since he has already indicated his position on the case.

The division of functions also  means the State controls what to charge. In this case, there was nothing improper about the State dismissing charges. They knew the facts, and based on that knowledge would have an opinion on what a proper resolution should be. If someone doesn't like the decision, there is a political solution; you can not  re-elect the prosecutor. The judge may not like the decision, but their job is to judge the case brought before them. They cannot, and should not, tell the State what charges to file. In this case.

The criminal justice system functions smoothly most of the time. It can fall apart though when one of the parties steps outside their role. When judges side with either the prosecution or defense, there are problems. The job of a judge is to be neutral and impartial; it is not to see that someone is prosecuted, or avoids punishment.

I'm sure there is more to the story in this case, as there are in most cases. While it should play no part in a judge's decision making, public sentiment appears to be equally divided; some think she got off too easy, while some think she was punished too harshly. Perhaps that is the definition of a fair and reasonable resolution.

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Almost everywhere except Texas the offense of driving while intoxicated is referred to as DUI. If you don't believe me, do a search for DWI attorney and then search for DUI attorney and see how many more hits you get.

If a potential client has done some research before coming in, they often ask what's the difference between DUI and DWI. It's a good question because Texas does have an offense of DUI, or driving while under the influence. That offense applies only to minors, and prevents minors from driving whenever they have had anything to drink, even if they are not under the influence. An adult can be "under the influence" and as long as they are not intoxicated, no crime has been committed.

Some people think DUI applies to someone who is under the influence of drugs, but that is not the case. The DWI statute defines intoxication as "the loss of the normal use of a person's mental or physical faculties" by reason of the introduction of alcohol, drugs, or a combination of the two.

Although the laws in most states are fairly similar, there are important distinctions. While the offense of DUI in one state may be the same as DWI in Texas, there may be important differences, especially in terms of penalties. While its helpful to be educated, there is no substitute for a consulting with a lawyer experienced in handling DWI cases in Texas.

This post published by a Waco DUI lawyer

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