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

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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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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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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