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

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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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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Intoxication manslaughter cases have been in the Waco news later. Several weeks ago, a young girl was sentenced to 2 years for the death of her cousin. They had both been out drinking at a party, and had a wreck on the way. During the trial, the victim's parents pleaded with the jury to not send her to prison.

Last week, a young man was given 30 years for the death of a mother, and injuries to her children He had been passing in a no passing zone when he collided with the victim. The wreck killed the mother, and seriously injured one of the children. Obviously, the wreck devastated the mother's family. It also devastated the defendant's family. His brother had been killed several years earlier after drinking too much, and driving his truck into a ditch.

This week a defendant decided to plead guilty instead of going to trial. She had been out drinking with friends, including the victim. The victim had also been using drugs. They ultimately got into a fight, and he got out of the car, and the others left. They came back, and ran over him, killing him - he was lying in the road at the time. She agreed to 8 years instead of going to trial. When interviewed, her law stated it was not a good time to be charged with McLennan County. Obviously, the verdict the previous week influenced her expectations o what could happen.

So how come one defendant gets 2 years, and another gets 30. The easy answer is that different juries may look at cases differently. Still, that doesn't really explain the difference between those two results. Even when plea bargains are involved, there often appears to be substantial disparity between similar cases.

It's no secret that the majority of cases are resolved by plea bargain. When trying to negotiate a plea, both lawyers are trying to guess what a jury would do. The defendant does not want to agree to more time than a jury would likely assess. The prosecutor also does not want to offer substantial less than what a jury would assess. When trying to guess what a jury will do, both sides have to evaluate all aspects of case. That includes the facts of the offense, and a defendant's prior history. Although it shouldn't be a consideration, the circumstances of the victim must also be considered. (that will be left to later)

Plea bargaining has a lot of similarities to gambling, and each defendant's attitude towards risk must be taken into consideration. Some people want to know what will happen, and stay away from risk. For them, plea bargaining allows them to know beforehand what is going to happen. Others enjoy risk. For them, they may not shy away from the risk of a trial, where they might get a lower sentence, or one substantially higher than is being offered.

Another factor which cannot be controlled is the prosecutor assigned to the case. Policies vary among Counties, but almost everywhere prosecutors have some discretion when making offers. In some counties, that discretion is almost unlimited, which creates a real problem for criminal defense lawyers. One prosecutor may be more lenient than another, and the luck of the drawer determines whether a client gets a low offer, or a high  offer. That is one of the more difficult things to explain to clients when they see other people coming out substantially better than they are. It is impossible not to compare cases, and everyone does it.

Just as the prosecutor makes a difference, so does the defense lawyer. Prosecutors know some lawyers have a reputation for pleading everything out, and avoiding trials. They also know other lawyers are going to fight for their clients, and aren't afraid to go to trial if they think that is he best strategy. Without a doubt, the latter are the ones who are most effective in negotiating favorable agreements.

In the end, there is no formula or rule you can use to evaluate a case. There is no substitute for experience. That is the only way you can know how juries and prosecutors evaluate cases. Unfortunately, that leaves everyone with their own opinion, which they won't hesitate to share - all you have to do is look at the comments on most news web sites. Of course, that is also one of the things that makes this Country great.

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I was in court the other day, and caught part of a hearing where a defendant was complaining about his lawyer. One of the complaints is one we hear all the time - he hasn't showed me all the evidence the State has against me. The judge tried to explain to him the rules of discovery, but like most people, he found it hard to believe.

I think  most people would agree that there is nothing more serious than facing a loss of your liberty. If you are going to have to defend yourself, you want to know what evidence the government has. Most people believe you are entitled to that - after all, we always hear about all these "rights" criminals are supposed to have. How can a proceeding be fair if you don't know what evidence is?

The reality is that there is no such thing as discovery in criminal cases. Under the rules, the State only has to provide copies of your client's statements, and any expert reports (e.g. drug analysis, DNA results, etc..) They do not have to provide offense reports, or witness statements. You are only entitled to those after the witness testifies - so you can cross-examine them. There's an old joke about waiting to try the case to find out what the facts are, but that could happen.

Thankfully, most prosecutors will open their files, and allow lawyers to look at what they have. You have to then sit down, and take notes on what you see. Some more enlightened prosecutors actually provide copies of whatever they have.  Not only is that fairer, it also helps resolve cases. It's hard to decide what to do when you don't know what the evidence. It's also impossible to advise a client on whether or not to go to trial when all you have is the prosecutor's assurance that he is guilty. You need to know what the evidence is, and the prosecutor is in total control of the flow of information.

In contrast to what you have access to in criminal cases, in civil cases you can obtain almost anything. Most of the time is civil litigation is devoted to discovery. You can file interrogatories, requests for production and take depositions. In the process you can learn everything about the case, and the parties. You can sue someone for $1,000.00 and find out almost everything about them. If you look at the rules of discovery, you would think civil cases are  more important than criminal cases.

Discovery reform has been addressed in the last several sessions of the legislature, without much success. Prosecutors are obviously reluctant to turn over what they have - they like it the way it is. As with most criminal justice issues, anything that appears to be favor criminal defendants is opposed. That belief system will rarely succumb to logic and common sense.

The fact is that adopting uniform rules of discovery would streamline the criminal justice process. Access to information can do nothing but help move cases along. When you know what the evidence is, you can make an informed decision. Providing that information early means cases can be resolved quicker. Even if the case has to go to trial, what's wrong with a defendant knowing all the evidence?

The legislature will meet again soon, and you can always hope this session will produce something. I'm not going to hold my breath though....

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