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

I was in court recently and observed a plea in a sexual assault case. The plea was for a low sentence - which is unusual. Before accepting it, the judge asked the prosecutor if the victim and their family had been consulted, and made sure they agreed with the recommendation. I'm not sure what would happen if they had not been, but obviously the judge wanted to make sure the victim was satisfied with the outcome.

 Others have written about this (you'll have to find them on your own), and have expressed the issues this raises far more eloquently than I can. All I can do is rant. The fact is, the criminal justice system is not in the business of making people happy. There certainly is no concern for defendants. Why should victims be any different. They have a personal interest in the case, and those closely connected anything are the worst persons to consult. There is no way they can be objective, and trying to cater to their interest is often impossible.

 What bothered me about this though is the hypocrisy in such concern. Perhaps the judge was truly concerned about the victim. Perhaps he simply wanted to appear concerned, since that is what judges are supposed to do. The fact is that judges and prosecutors are only concerned about victims when it fits their agenda. How many times have people been prosecuted over the objections of the victim. In this case what if the victim had been consulted and told the judge they didn't agree with what was happening – they thought the case should be dismissed. Do you think those concerns would have been honored?

The fact is prosecutors and judges have to run for election (at least in Texas). No one gets elected by catering to defendant's. Instead everyone wants to be as hard on criminals as possible. That system is designed to fail. Maybe I'm being overly cynical, and I concede the possibility. After all, judges and prosecutors do see terrible things every day - and terrible. It's easy to stereotype, and assume everyone is the same. Criminal defense lawyers are not immune from that. It's a struggle to evaluate each case, and each defendant, on their own, and not burden them with the misdeeds of others.

So what's the answer? I don't have it. But a good start would be doing away with the concept of "victim's rights" unless you truly want to apply it across the board.

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Every lawyer has had those clients who seem to be incapable of making good decisions. Almost by definition, the people we represent are not the best decision-makers. It's generally bad decisions that bring them to our office. However, once they are in trouble, most people are able to evaluate their options – with the help of counsel – and make a reasonably informed decision. Some cannot do that, and despite the lawyer's best efforts, do everything they can to sabotage themselves.

I recently saw an article about a case which demonstrated this in textbook fashion. The defendant was charged with bail jumping. He was not a rookie in the criminal justice system, and had several prior convictions. That qualified him as a career offender, which meant his punishment range could be 25 years to life. Despite that, the state offered 18 months in a state jail. He refused, and went to trial. There didn't appear to be much of the defense, which there seldom is in those cases. You either showed up when you were supposed to or not, and there are not many good reasons to not show up. Predictably he was convicted. Even after that, the state still wanted to deal; They offered 15 years, which he also refused. The end result was 32 years in the Texas Department of criminal Justice.

I don't know all the facts, but no matter what they are this demonstrates a problem lawyers face regularly. The decision to plead guilty is one of those that is entirely up to the client – and that is how it should be. The lawyer doesn't have to do the time, so he shouldn't be making the decision. All we can do is provide the best advice possible, and try to guide them in their decision. We often may not agree with, but it is the clients to make. I've had clients who I begged to take their case to trial, but they didn't want the risk. On the other hand, I've had more than a few clients like this who should have taken the state's offer. That process works reasonably well in the vast majority of cases. But there are a few where you have to wonder if there isn't a better way – this being one.

The test for competence is extremely low; if you know what a lawyer does, and know what you are charged with, you are probably competent. Competent doesn't mean you are smart, just that you basically understand what is happening. Perhaps there should be a separate test for competence to enter a plea. If every lawyer on the planet, along with the majority of the population would counsel a plea, isn't there something wrong with someone who goes against that advice?

I realize that the ability to make a rational decision has absolutely nothing to do with competence in the legal sense. I also realize there is probably nothing we can do. But it is still distressing to sit by and watch someone throw away their life, when that is what you know they are doing. Despite the press, most lawyers truly care about their clients, and want what is best for them. That's why I lot of us went into criminal defense work . Unfortunately that's the price of being a criminal defense lawyer. Something they never tell you about in law school.

I suppose you can rationalize this by arguing that we  have to allow people the opportunity to make their own decisions - good or bad. We certainly can't force decisions on people in most cases - even when we think that is what's best. After all, we aren't always right - at least I'm not.  So in t he end, this probably nothing but a rant. But then why else have a blog?

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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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Every criminal defense lawyer has had clients who think they know more than anyone else, and refuse to acknowledge reality. For reasons I can't explain, they are usually the clients who are obviously guilty - and there is no defense. There are multiple eyewitnesses, or physical evidence, a confession, or some combination thereof. In those case, the only question is generally how much time are they going to do.

Your first hint that there might be a problem is when you convey what you believe is a reasonable offer, and the client responds with  "I can't do that much time". Logic would say that if you can't do that much time, you certainly can't do more, but they never seem to grasp that. Instead, they seem to believe that the prosecutor really cares what they think. I have no idea where this comes from. In some cases, the person has always gotten what they wanted, and they assume it will be the same here. Others just don't think the same way everyone else does. Mark Bennett recently commented on this, noting that there are some people you simply can't reason with.

The client who knows better than you is frustrating for many reasons. Most importantly for me is that their case almost always ends badly. I want to do the best for each client, and I take it personally when they end up with more time than they should. You always wonder if there was something you could have done differently.

I'm writing about this because I just finished another one of these cases. It had been dragging on for a long time, and has been set for trial several times. Each time the offer went up - you can't blame the prosecutor, because they had a great case. In the end, the client recognized he didn't really want to go to trial - maybe he knew that deep down all along. By the time he made that decision though, all the offers were off the table. Basically, he negotiated himself a worse deal - when it should be the other way around. Unfortunately it's not the first time I've seen that, and I'm sure it won't be the last.

I'm not sure there is answer for this, or a best way to handle. Maybe there are some people who you can't reason with. If anyone has the answer, I would love to hear it.

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