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 waiting for a hearing, and heard an exchange between a defendant, his lawyer and the judge. The exchange wasn't unusual - the defendant was complaining about his lawyer - he wasn't working for him, and was working with the prosecutor to get a conviction. That's a fairly common perception about appointed lawyers; a perception that is almost always wrong. While there are all types of lawyers, there are many appointed lawyers who do excellent work. In this particular case I knew the lawyer, and knew he was doing everything he could for the defendant; the problem was that the client didn't like what his lawyer was telling him.

In allowing the lawyer to withdraw, the judge made an observation which many judges routinely forget. He said he had no doubt the lawyer was doing everything he could and was not working with the prosecutor, but the defendant might think that.  He ended up appointing another lawyer, with the usual warning that he wasn't going to pick who was going to represent him, and he needed to listen to his new lawyer.

I have to commend the judge for looking at things from the client's perspective. All too often judges forget what it was like to actually practice law when they ascend to the bench. They forget we have clients, who we have develop a relationship with. I've seen judges question what a lawyer was doing, or make some comment that does nothing but cause the client to have doubts about his lawyer's competence. On the other hands, I've seen judges commend lawyers on something they have done, and you can see the client's trust expanding before your eyes. Good judges recognize we have to work with our clients, and try to account for that in their comments. Of course they can't do that in all situations - but they try.

In the case I observed, nothing good would have been obtained from making the lawyer continue on the case. The case would have to be tried, even if there was a reasonable resolution. A writ would be sure to follow, which would take up more resources. The client would talk about he was screwed over by the judge, which which would create distrust among inmates. Granted, those things are unavoidable many times; but if there is a chance to avoid it, why not take it.

The lesson from this judges is to remember we have clients. For lawyers, how we interact with clients is as important as what we do. Clients don't know whether you are doing a good job or not. They need to trust that you have their best interests in mind. If they believe that, they know you are fighting for them, and will trust what you are doing. For clients, most lawyers really are trying to help you. You can't survive long if you continually screw clients over; so trust what your lawyer is telling you.

I don't know if the relationship with the new lawyer will be any better; there are some clients who are not going to get along with anyone. If the defendant complains about the new lawyer, the judge is probably not going to be sympathetic again. At least he tried though - which is more than will do.

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Everyone is commenting about Charles  Hood's case. While its by no means an exhaustive list, below are some of the posts from the last few days. In case you haven't heard, the fomer Collin County District Attorney, and former District Court Judge (later Court of Criminal Appeals judge), finally admitted to having a long standing  relationship. Whether it was going on during Mr. Hood's trial is in dispute, but there is no doubt the two were in a relationship when the District Attorney was appearing before the court. Obviously, that is not proper, especially when no one knows about. The question is what you do about it.

The majority of people are not aware that most errors in criminal cases don't cause the case to be reversed. Before a case is reversed, a court must find the error was harmful. Basically, that means the error had some impact on the proceedings. A problem I have always had with the harmless error rule is that intent is not a factor. That is, a court or prosecutor can intentionally do something they know is improper, and not suffer any consequences. Unfortunately, that is the deciding factor in many rules - whether it is something that will get the court reversed.

The problem with an improper relationship like this it is almost impossible to establish harm. You would have to show the judge ruled a certain way because of the relationship. That is going to be all but impossible to establish. As a result, there are no consequences, other than what the bar or the judicial commission might impose. Of course, that does nothing  for Mr. Hood and the other defendants who appeared in that court.

I have an alternative approach, which I think would have the necessary deterrent effect. Where an improper relationship is established, presume it was the result of the relationship. If a defendant can establish an error, then put the burden on the State to establish the relationship played no factor. If there clearly was no influence, then the case would be affirmed. Otherwise, the defendant would get a new trial, before an impartial judge and prosecutor.

If we want people to have faith in the judicial system, then we must ensure that all defendants are treated fairly. We also must protect the perception of the proceedings. I doubt anyone believes a trial before a judge and prosecutor are involved is fair. Let's do something to ensure that doesn't happen again.

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The soap opera surrounding Charles Hood's case

Hood execution stayed

Prosecutor and judge in capital case admitted affair

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