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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Another judge has been in the news this week. Judge Samuel Kent, a federal district judge in Houston pled guilty earlier this week to obstruction of justice. He pled right before his trial was scheduled to start. in addition to the obstruction charge, he also faced charges for sexually assaulting his female staff (which he admitted as part of his plea).

While it's news any time a judge gets indicted (especially a federal judge), there are several things about this case that are interesting. One is the plea agreement itself. To say it's favorable is an understatement. I wonder whether the offer would have been made to anyone other than a federal judge? If it  had been one of the judge's law clerks, or members of his staff, would the same offer  have been made to them?  If you've ever handled a federal case, you know that federal prosecutors rarely allow a defendant to plead on a lesser offense. In fact, most will tell you that department policy requires them to obtain a conviction on the greatest offense established by the evidence. Was there a problem in proof in this case? If so, why did he admit to the conduct as part of the plea?

The perception among the powerful is that the privileged receive special treatment. This certainly does nothing to dispel that perception.

Beyond those considerations is something that surfaces in these situations. I've never appeared before Judge Kent, and don't know anything about him. However, my guess is that he has heard most of the excuses he is now making for his conduct; he was depressed, and his medication wasn't properly adjusted, or some variant of that. I doubt seriously he has ever bought that argument. Yet, he is going to make the same claim, and expect it be accepted. Unfortunately, that state of mind is far too often among the judiciary.

Most judges develop the belief that defendants are different than them. While many judges start off with plans to treat every defendant as an individual, few are able to maintain that. They see cases and defendants, and not people. As a result, they too easily reject valid arguments for why people committed their offenses. For many it is a product of circumstances. I'm sure Judge Kent realizes that now. He has the benefit of a someone judging him who can relate to his situation. For most defendants, judges have no idea what it's like to live in their shoes.

Judge Kent's career is over, so he won't get to apply what he has learned. It would be nice if it served as a lesson to other judges. There is usually a reason why people do what they do; you have to look at them as individuals, and not defendants, to know what those reasons are. If you do that, you are acting as real judge.

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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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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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A recent post by Austin criminal defense lawyer Jamie Spencer suggested that Jesus was the ultimate defense lawyer. I'm guessing there are a lot of people who disagree with that idea, and probably would get really worked up if someone suggested it. I'm thinking of those whose are sometimes referred to as the radical part religious right. I say radical, because I consider myself in alignment with a lot of the things they advocate. However, I also disagree with many of their positions, starting with the death penalty. I may be wrong, but I think many of them put criminal defense lawyers only slightly above the citizens we represent.

Several years ago I heard a conservative talk show host make ask the question "whether a criminal defense lawyer could be a Christian". Needless to say, that got me agitated, and kept me fuming for days. As with most things, some good came out of it, because it caused me to think.

I have taken to heart the teaching that we are going to be judged by how we treat the least among us. It's easy to be nice to those we like, and our friends, but it's far harder to be nice to those we despise. Unfortunately, the criminal justice system often revolves around the decidedly non-Christian concerns of retribution and vengeance. I've handled several death penalty cases, and one of the saddest things I've observed is how the victim's family is often consumed by hatred and vengeance. Those feelings take them away from their faith, while at the same time those on death row are often growing in faith. Unfortunately, that desire for vengeance is often fueled by the system. It is certainly fueled by politicians, who go to great lengths to avoid recognizing criminal defendants are part of God's creation also. The new concept of restorative justice may be the solution, but this is for another post.

Our job as criminal defense lawyers is to see the good in our clients, and make sure they are treated fairly. In doing that, we often advocate for some of the most despised people in society. In other words, we interact daily with the people Jesus would probably be with if he were walking the earth today (not to say that he isn't, but thats even more of a theological question) So would Jesus be a criminal defense lawyer? I don't know, but I'm confident he would be support the job we do.

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For many people, the Easter season is more than eggs and new clothes. It's about the central belief of Christianity - the death and resurrection of Jesus Christ. Most of us give some thought during this time to what happened almost 2,000 years ago. We know the story by heart. Since it involves a trial and punishment, its not surprising that parallels are drawn with the criminal justice system. In one post, the author provides an excellent description of the many infirmities in the proceedings leading up to the crucifixion. The conclusion of the post is that it was the ultimate mockery of justice.

You can't really argue with that; but I think you lose some of the impact of the story by comparing it to a criminal trial. No doubt it involved accusations and condemnation. However, the story had already been foretold thousands of years ago. Jesus faced what he had been placed on earth to do. We feel sorry for people who are unjustly treated, but in this case we can't separate the ultimate result from his suffering. By his suffering and crucifixion, he opened the gates to heaven for us all. Had Pontious Pilate had a backbone, or had he crowds recognized what was happening, our hope for eternal life would be in vain. I don't have the answers for how much of a choice everyone had, or whether they are ultimately accountable. All I know is that out of all this pain and suffering, we gained the possibility of eternal life.

So yes, it was a mockery of justice. For our sakes, thank goodness.

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