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

Paul Kennedy recently voiced his frustration about a recent trial, and wondered whether there really is such a thing as the presumption of innocence. and does the defendant really have a burden to prove innocence. I've wondered the same thing for years - and also had a recent trial experience bring that home. I have some theories I've developed over the last 28 years, which are far from scientific. Nevertheless, my observation has been that the burden of proof varies both with the seriousness of the charge, and the type of defendant. Mark Bennett was the first (at least to me) to start talking about he lizard brain, and that has helped me put a reason behind my theory.

The problem with burden of proof and  presumption of innocence is that they are concepts - they are not something real or tangible, and not something you can easily identify. Almost everyone will tell you they believe the presumption of innocence is a good thing, and that the State should be required to prove their case beyond a reasonable doubt. It would be un-American to say anything different. If you really dig though, most people have to acknowledge feeling that are directly contrary to the presumption of innocence. Show me someone who doesn't think a defendant sitting at the counsel table is probably guilty, and I'll show you someone who is lying. At the very least they believe they must have done something wrong - or they wouldn't be there. Any decent criminal lawyer knows you have to overcome those feelings - i.e. you have to prove you aren't guilty.

The difficulty in proving innocence increases with the seriousness of the crime. I think that is partly a function of our lizard brains. The more serious the crime, the less jurors are willing to gamble. They don't want to risk putting back on the street who could commit the same crime again - possibly against their family or someone they know. Although no one would ever admit it, they tend to err in favor of safety and personal preservation - in other words, if they have a doubt they aren't going to walk someone charged with  a serious crime. No where is this more in play than in sexual assault cases - especially those involving children.

I think there is something else at play also - especially in crimes with victims. Jurors - and society for that matter - want to see someone pay for a crime. Somebody has to be responsible, and if its not the right guy (or girl) that's just too bad. This is something I believe you have to overcome in cases like murder - especially if the victim was someone who jurors respect and like. Unless you can  prove somebody else did it, your chances of winning are slight.

I handle a lot of appeals and post-conviction cases - that includes more than a few innocence cases. There have been more than a few cases I've looked at and wondered how in the world the jury could have convicted the person. Most of the time I think it was nothing more than the defendant couldn't prove someone else committed the crime.

Prosecutors are fond of talking about how difficult it is to overcome of the presumption of innocence, and what  a high burden they have. If the burden was really that high, the would lose a lot more cases. In reality, a guilty verdict is a function of how convinced jurors are, and how willing they are to risk making a mistake - i.e. letting someone who might be guilty go free.

There's something else that's play in any case - and which can trump the above factors. That is the defendant. The more the defendant is like the jurors, the more likely they are to accept his story. Put another way, if the jury likes your client you have a chance. If you  have a celebrity client you are way ahead of the curve - if you have any doubt, look at O.J. Why that is I have no idea - especially since most people don't think celebrities rank high in the integrity category.

Scott Greenfield recently asked if  police officers are accorded special treatment by jurors - and judges. Again, that is a class of people jurors look up to. After all, you learned at an early age to respect police. I think he is right because they start off ahead - jurors want to believe them, and are willing to accept what they say.

So what does all this mean? It would be nice if jurors recognized these tendencies, but that is probably too much to expect. At a minimum, lawyers must be aware of them so they can attempt to deal with them. 

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Williamson Count District Attorney John Bradley may have come up with a solution for all these pesky little innocence claims. Charge them with aggravated perjury for falsely swearing they were guilty when they entered their plea.

Markum Peavey was sentenced to 55 years in 2007 for driving while intoxicated. It is not clear whether or not there was a plea agreement, but Peavey did plead guilty. He also pled guilty to evading arrest, and was sentenced to 25 years for that offense. Peavey then filed an application for writ of habeas corpus; in his writ, he claimed he was innocent. Writs of habeas corpus must be sworn to, so Peavey swore to the statement that he was innocent. Clearly, that was not consistent with his earlier plea of guilty. So not being content with 55 years, and apparently outraged that he would challenge his conviction, Williamson County indicted for aggravated perjury. Earlier this week Peavey was convicted and sentenced to 30 years; that sentence was stacked onto the prior sentence, so Peavey basically now has an 85 year sentence.

Even the most staunch defender of law order might sense some unfairness in this. Other than concerns about decency and fairness, there are also some practical problems with this approach. The first is that just because a defendant pleads guilty doesn't mean he agrees he is guilty.

Long ago the United States Supreme recognized that defendants might who don't believe they are guilty might not want to risk going to trial. Although this can be he subject of a separate post, its basically common sense. Would you rather be innocent and spend 10 years in prison or innocent and spend 50 years in prison. Prosecutors know this, and sometimes make offers to good to be true. So a defendant basically fibs, and admits guilt in return for a favorable outcome.

The Court of Criminal Appeals recognized this a few years ago in DNA cases. Some of the persons who have been exonerated actually plead guilty originally. The court recognized there could be a number of reasons for pleading guilty, and held that would not prevent you from claiming innocence and filing a motion for DNA testing. It's probably worth noting that those motions also have to be sworn to.

Maybe Mr. Bradly has hit on a way to save the state some money.  A defendant is exonerated through DNA evidence, and gets a pardon from the government. The State then comes in and indicts him for aggravated perjury if he plead guilty. If they get a conviction, then does that prevent him from getting his compensation - which was recently raised by the way? Maybe I shouldn't even say that - its just crazy enough that the governor might think its a really good idea.

As a side, if the name John Bradley sounds familiar, it should. That is the new chairman of the Texas Forensic Commission - the chairman who canceled the meeting where Dr. Craig Beyler was going to discuss his report on Cameron Todd Willingham. I'll let you draw your own conclusions.

 

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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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I recently heard a prosecutor make the comment that a defendant was "wasting his time" because he wanted to go to trial. Sadly, I've also heard defense lawyers say the same thing. Usually its a case where the evidence of guilt is overwhelming, and there is no realistic chance to win. Sometimes its a case where the prosecutor has made an offer that's more than reasonable - i.e, less than the defendant will probably get from a jury or judge.

Such comments are always centered on the interests of the prosecutor and the defense attorney. Prosecutors usually have too many cases, which is why they make offers in the first place. They look at the situation as taking up time they could devote to another case - one they feel really does need to be tried. Some Defense lawyers on the other hand don't like to get stomped on, and don't like to handle cases they know they have no shot at.

What both forget too often is the interests of the defendant. Defense lawyers too often think they have to make all the decisions, because after all they are  the lawyer. Clearly, they do have to provide their insights and experience. However, the decision on whether or not to go to trial is not one the lawyer gets to make; its up to the client.

So why might a defendant want to go to trial in a hopeless case? No doubt, there are some who are incapable of assessing the situation rationally. Just like people who go in every week and purchase lottery tickets, they think they might hit the jackpot. Sometimes hope is immune from common sense.

But there are other defendants who just want their day in court. Maybe they've also copped out and taken pleas, and they are tired of it. Or maybe they just thing its time to get up and fight for themselves. If thats what they want, it's our job to give it to them.

I've had cases where the defendant just wanted to fight. Sometimes we came out better, sometimes worse. Even in those cases where they came out worse though (i.e they got more time than offer), I don't think some regretted it. That was the price they paid for their day in Court. They were appreciative that someone would get in a fight for them, even when the situation appeared hopeless

We need to remember the system doesn't just exist for the lawyers. It's really all about the defendants. When all they want is to fight, we need to give them the opportunity, and not complain about it. In other words, look at the situation from your client's eyes - after all, that is who you are representing. And for the prosecutor, your job is to try the case; you might learn something too.

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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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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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A hearing was held this week was held in Waco, Texas to determine whether the trial of a local civic leader should be moved out of McLennan County. The individual was  head of a local civic organization, and is accused of taking thousands of dollars. Few cases have generated this much coverage in Waco; reporters have even camped outside her house, and were there when she was arrested, and released from jail. Her attorneys are concerned that the coverage will prevent her from getting a fair trial, and tried to get the case moved. The judge denied the motion, which means the case will remain in Waco.

I've had many defendants tell me they needed to get their cases moved. Usually its because there have been a couple of news stories about the case, or they may think the judge is biased against them.. Few cases are notorious enough to even pursue a motion. Despite what most defendants think, potential jurors rarely know anything about the cases are selected for. Even if a few do know something, the burden for obtaining a change of venue is almost impossible to overcome.

So what it does it take to move a case to another county? The law is fairly broad - you have to establish the publicity has been so extensive that you cannot get a fair trial. Publicity alone is not enough; it has to be negative publicity, or coverage which leaves no doubt that the defendant is guilty. You try to establish that through affidavits from members of the community, and producing evidence of the coverage. Of course, if you submit an affidavit, the State is probably going to submit affidavits from people who believe your client can receive a fair trial. I've always thought that was silly way to handle the issue, because you are going to be able to find someone on both sides. I don't see how such affidavits can help a court decide whether the defendant can receive a trial; he can only do that by seeing the publicity and coverage, which as a member of the community, he has probably already seen.

This is one of the areas where a judge has almost total discretion. There are only a handful of cases that have been reversed because the court refused to grant a change of venue. The bottom line is that if the judge wants to try the case, he can. I've been involved in two change of venue cases. One was a capital murder defendant, who was being tried a second time; the first case generated a lot of publicity, and the court felt it was only fair to move it out of the county. The other was Kenneth McDuff, who had been accused of kidnapping a convenience clerk. It took several weeks to apprehend him, during which time there was constant coverage of his past, which included a prior conviction for capital murder. I have no doubt the judge (the same one in both cases) could have denied the motion to change venue in both those cases, but he knew that was not the right thing to do.

There is a lot to be said for trying defendants before their peers. However, that shouldn't trump the right to a fair trial. If there is some chance the potential jurors will have already made up their minds, a court should not hesitate to move the case to another county that has not been subjected to the publicity.

Defendants in high profiles cases are are in a tough enough position - they don't need the added problem of fighting both the facts, and the  press.

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I've been out for a week, and am glad to be back. I spent 3 1/2 days at sign language school, which was  a grueling experience. Not being able to talk is bad enough - its made when worse when you have trouble communicating through sign. I learned a lot though - including the fact that  it's a lot harder to pick up another language though when you get older!

I read an article this morning which made a point I had not thought about. The article was about the Jon Benet Ramsey case, and how the parents had been "presumed guilty" all these years, only to be finally cleared. That case is a perfect example of why the presumption of innocence is little more than a myth.

Attend any criminal trial, and during jury selection you will probably hear defense lawyers spending a lot of time talking about the presumption of innocence. While it's an issue you need to point out, I don't think most people (jurors included), really believe it. If they answered honestly, they would say "yeah, I think he probably did it - why would they arrest him if he didn't do anything wrong". If you ask Mr. Ramsey, I'm sure he would say few people afforded him the presumption of innocence. Outside of his friends,  most people probably suspected he had some involvement. He had to live under a cloud of suspicion for years, and his wife died with it  still hanging over her.

Even with news of all the exonerations in the past several years, most people still think that if someone is arrested, they are probably guilty. That's probably human nature,  because most of the time they are guilty.  That's not an excuse though to brand someone a criminal, without hearing all the evidence. We need to do a better job of giving people the "benefit of the doubt". If you do that consistently, maybe it's a little easier to give meaning to the presumption of innocence if you are called to serve on a jury.

We need to take this case, and others like it, to remind everyone how important it is in our justice system to have the presumption of innocence.

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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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