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

Yesterday a District Court judge in Austin - Charlie Baird - issued an opinion formally exonerating Timothy Cole of rape. What's historic is that Cole died in prison; as far as I know, no one has ever been exonerated after their death. Thank's to Grits, you can view the opinion here.

Cole was convicted of raping MIchelle Mallin, who had positively identified him. Mallin was present at the hearing - flying in from out of state with her husband - and has been a vocal supporter of Cole's family. She also has become a vocal supporter of innocence reform legislation.

Baird was critical of the police investigation, which he said zeroed in on Cole and ignored clues that could have led investigators elsewhere. He also took the opportunity to pitch legislative reform, including revising eyewitness identification procedures, and improving access to the courts for those pursuing innocence claims. That's a start, but I don't think its near enough. We need to change our mindset, which is far harder to do.

Cole's case has a happy ending - largely because of the resolve of his family. They were able to convince the Texas Innocence Project to take the case - I doubt it took much persuasion. The actual rapist had been trying for several years to take responsibility, and exonerate. He had written letters to everyone he could think of, and they were all ignored. Unfortunately, that is not uncommon. Authorities have to deal with hundreds of such claims - and the vast majority are groundless. However, some have merit, and they get dismissed far too easily. Somehow, we need a system to identify those claims that need to be investigated. Providing money is a good start - we cannot expect a few lawyers to shoulder the responsibility of providing representation in these cases - there is so much pro bono work you can do; you still have to pay the bills.

Criminal defense lawyers don't get a pass on this. I handle post-conviction litigation and supervise a innocence clinic at Baylor Law School. I cannot guess at the number of letters I've received from inmates declaring their innocence. Unfortunately, I've received a few letters from people who were able to obtain relief from someone who listened to them. I try to take each claim seriously, but its human nature to become jaded when so many turn out to be false.

We can set up the best system humans can devise, but it will still be run by people. Unless those in the system take it seriously, there are still going to be those who fall through the cracks. How you do that I don't know. I do know that when you see cases like Timothy Cole you look at things a little differently - at least for awhile. We need to constantly remind ourselves that there many other Timothy Cole's out there - trying to get someone to listen.

I realize not everyone who says they are innocent actually is - most probably aren't. I also recognize that there are probably a lot of innocent people who are never going to be able to prove their innocence, even with the best team of lawyers. No matter  what system you devise, there will always be those who can't meet their burden.

Timothy Cole was lucky (if you can call dying in prison a convicted rapist lucky) - there's no doubt there are others that are not so lucky. I believe the legislature has finally realized - after years of prodding - that something needs to be done. Thank you to everyone involvied in obtaining this result - it should be a lesson to us all.

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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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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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