The Lawyer Who Knows the Facts Best

On December 31, 2012 Brazos County will say goodbye to Bill Turner, probably the best Texas elected prosecutor ever. Turner choose not to run for office this year and retire after more than 28 years of government service to the citizens of Brazos County. 

I know Turner was the best. I worked for him as a prosecutor. I also worked against him over the years. Bill was my boss when I started my career in the early nineties. It was my first job out of law school. He helped trained me and helped me develop my work ethic as a criminal trial lawyer. Bill was also a colleague and an adversary. I tried two death penalty capital murder cases against him. Additionally, Bill was occasionally my adversary when he came to the defense of young prosecutors he believed I was beating up on.  :-) 

I liked trying cases against Turner because he was good, really good. I liked going head-to-head with him because defense lawyers feared him. Turner made me better. He challenged me. I was always willing to battle in the arena with Turner since I knew I'd be the better for it.

Recently, Bill gave me a bit of his time. I stopped by to tell him I appreciated him. He told me something of his plans after retirement and I was excited to hear about them. They sounded fresh and challenging. 

Lastly, I wanted to tell Turner about the most important thing he ever taught me as a lawyer. He taught me much, but I picked just one thing to share. As a young prosecutor, Turner taught me the lawyer who knew the facts best, usually won the case. That simple truth drove me to prepare each case as if it were my last. To know the facts better than the other guy, since I always wanted to win. I laughed with Turner during our visit when I explained that truism did not always hold water for the criminal defense lawyer. I lamented I often knew the facts better than my prosecutor opponent, but still lost my case. 

My parting words to the best prosecutor Brazos County every had were these: "The lawyer who knows the facts best does not always win. But the lawyer who knows the facts best NEVER looks like an idiot." We laughed and agreed that was good enough. 

Lawyers Who Win Cases Should Exercise Their Right to Remain Silent

This week, news agencies reported certain computer evidence was overlooked by the prosecution in the Casey Anthony murder investigation and subsequent criminal trial prosecution. The overlooked evidence included Google search logs for "foolproof suffocation." The Orange County Sheriff's Office was responsible for the computer forensics but failed to advise the prosecution of this incriminating material.

One juror who served on the case told reporters this "new evidence" might have affected their verdict. Questions were raised about whether the government could re-trial Casey Anthony for the murder of her daughter. Some even asked whether the United States Justice Department could bring a federal prosecution despite the double jeopardy clause of the Fifth Amendment to the United States Constitution. Now the pot is stirred and the hornet's nest is abuzz.

But how did this new evidence come to light which has everybody in an uproar? Well, it appears Casey Anthony's lawyer, Jose Baez, opened his big mouth in his book about the trial. Baez told several news outlets his defense team knew about the evidence but did not disclose it to the prosecution.

I have no problem with Anthony's team keeping their mouth's shut about the incriminating Google search evidence. In fact, it's their job to keep quiet since state and federal law demand the government carry the burden of proof in a criminal trial. However, I believe Baez was an idiot for revealing this information in his book. First, it placed his client at risk by encouraging some of the country's top legal talent to take a second look at this case with a view toward a second prosecution . . . mistake. And second, it placed his client in a terribly bad light, since most of the country hated her already for getting away with what they believed was murder . . . bigger mistake.

Lawyers who win big cases should learn to keep their big mouths shut. When things go around, sometimes you never know how they'll come back around. Why put your client at risk? Why stir the pot? If it's to make yourself look good and sell books, that's a mistake. If you stir the pot to protect your client, then that's a different story. But in this case, Baez's book is for self-aggrandizement and making an extra buck. Sorry, but I simply don't respect him for that.

Bond Conditions Pose Problems For Bryan|College Station DWI

Persons accused of DWI in Bryan|College Station are often subject to "conditions of bond" imposed by the magistrate who set the bond after arrest. In cases where the accused person is alleged to have a BAC of .15 (or above) the magistrates have regularly imposed conditions which include abstaining from the use/possession of alcohol, a driving curfew, monthly meetings with a supervision officer, an alcohol detection device (interlock) for their automobile, and submission to an "alcohol/drug abuse" evaluation. These bond conditions are also imposed on persons accused of subsequent DWI 2nd & 3rd offenses. We have filed challenges to the imposition of these conditions as punitive or unreasonable, especially since the accused person hasn't yet been convicted of any crime. However, we've had limited success. 

If the curfew conditions create a hardship because of work or school scheduling we've been successful in getting our Brazos County judges to adjust the curfew to remove the hardship. Furthermore, I regularly object to my client submitting to any alcohol or drug abuse evaluation. At the time the bond conditions are imposed my client still has the right to remain silent. I instruct them to exercise it. I don't want my client speaking with a bond supervision officer about their recreational use of alcohol and drugs. Those admissions are not privileged and the supervision officer can be called later to testify against the client regarding these statements and admissions. So again, we've been successful in eliminating those types of "evaluation" conditions.

What our judges won't budge on is the alcohol detection device, or interlock. The interlock is designed to prevent someone from starting an automobile until the interlock determines there is NO alcohol in the person's system after they blow. Many clients tell me "well, I just won't drive a car, then." Here's the problem . . . if the client doesn't get an interlock for their car the judge will make them get a device that goes in their home. Yes, that's right. In your home. Furthermore, these devices are serviced and downloaded each month with a report going to both the judge and prosecutor. The devices are also equipped with a video camera which documents the identity of the person blowing into it.

Lastly, the magistrate who imposed these bond conditions then sends the order to the Texas Department of Public Safety. We've seen DPS take action to cancel the client's driver's license unless they obtain a special temporary license requiring an interlock device. It's a royal pain in the backside.

These bond conditions pose problems for Bryan|College Station citizens accused of alcohol related offenses. These conditions imposed unanticipated monthly expenses and provide an easy way for the prosecutors to obtain additional incriminating evidence. If you've been subject to these bond conditions after an arrest, it's important to consult with a good criminal defense lawyer who can help you navigate these troublesome waters. 

Technology Issues With Brazos County DWI Videos

Following is a letter sent to the Brazos County Attorney, Rod Anderson, explaining some trouble we've had in viewing DWI videos recorded on proprietary video programs used by local law enforcement. If any fellow members of the Bryan|College Station defense bar have similar issues, please contact Rod Anderson to make sure he's aware of the problem. 

Rod:  

There have been some technology issues around town regarding the Insight AV police videos which the College Station Police Department and Brazos County Sheriff's Office use to record DWI stops. I've heard several other defense lawyers articulate problems in viewing these videos on both PCs and Macs. I also have problems viewing these videos and, in fact, hired a computer expert to determine if it was something on my end. The computer expert explained it was the proprietary nature of the software and the "unavailability" of Internet downloadable code-ex to make the program run properly on someone's computer. 

All other videos can be played on programs like Windows Media Player, Quicktime, etc. These programs have available code-ex on the Internet which can be downloaded to make the players work. Code-ex is not readily available for the Insight AV player. Although the player is on Brazos County Secure Share and I've downloaded it, I still cannot get the Insight videos to play reliably. Again, the computer expert says it's a problem with the proprietary code-ex needed. 

Anyway, I wanted to make you aware of this problem. The Brazos County defense bar is, of course, thankful we can get the videos from your office. Also, Secure Share is a great vehicle through which to obtain them. But the "techno-frustrations" are problematic. 

I'm also aware the videos are available to view in the County Attorney's office, but this solution is impractical since most (if not all) of our detailed video review is done after hours and on weekends where regular office distractions can be eliminated, especially in preparation for trial. 

Thanks for your ear, Rod. Please let me know what we can do.

Steve Gustitis

Rule #9: "Never Go Anywhere Without a Knife"

Ok . . . I admit I borrowed this Rule from Leroy Jethro Gibbs. But what can I say . . . I just love knives. Kershaw assisted-opening knives are some of my favorites. This model, manufactured under the brand Zero Tolerance, is called their 0301 Tactical Folding Knife. This baby is strong, tough and opens like a bazooka. It feels like a tank in my hand. The Tiger stripe on the blade is really an eye catcher, too. This knife is so cool, I rarely use it to cut anything. It's like a new car you're afraid of scratching up. And I DON'T take it to court, for those who were wondering. Most of the time I'll carry it to the office on the weekends, flipping it open and closed as I ponder my next criminal defense strategy. So, for criminal defense lawyers with the need for a strong tactical folder, I highly recommend the Zero Tolerance brand of Kershaw assisted opening knives. 

A Role Model for Defending the Accused

In 1770 British soldiers killed five civilians in a street confrontation in what became known as the Boston Massacre. The soldiers were arrested on criminal charges and accused. Needless to say, the soldiers had difficulty finding legal counsel to represent them. Finally, they asked John Adams to defend. He agreed, though he feared it would hurt his reputation. During their criminal trial, Adams made his now famous quote regarding making decisions based on the evidence: "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." Six of the soldiers were found not guilty and acquitted. Two soldiers who had fired directly into the crowd were charged with murder but were convicted only of manslaughter. Adams was paid eighteen guineas by the British soldiers . . . about the cost of a pair of shoes.

Pre-Trial Diversion Could Work In Brazos County

I've spent a great deal of time in Brazos County court this week. Meeting with prosecutors, working to resolve cases, negotiating . . . and getting nowhere. Hurry-up and wait was the maxim. So what's the problem?  Well, prosecutors wanted too much. Not all prosecutors mind you . . . but many. And what would help move those backlog of cases . . . especially DWI misdemeanors? Pre-trial diversion would work to remove much of the backlog. Especially for first time offenders who, for the most part, are self-correcting folks who simply needed a wake-up call. But pre-trial diversion is not an option in Bryan|College Station criminal court proceedings. In fact, there are many Texas counties that offer pre-trial diversion. Just Google the Harris County DIVERT program.

Pre-trial diversion could be described as "informal probation." There's no adjudication of guilt. The offender simply agrees to participate in a community supervision program which would include monthly reporting to a probation officer, education classes, community service, and other common conditions you'd associate with probation. The offender would pay monthly fees and other associated expenses.

The upside for prosecutors is quick accountability and consequences for behavior. Even though the police had strong evidence to convict, rehabilitation and a second chance would be the focus of such a program. Cases would move more quickly since the offenders wouldn't be compelled to plead guilty and accept life-changing convictions. Again, since most of these low level offenders will avoid repeating this humiliating experience at all costs, they'll self-correct and stay out of future trouble.

The upside for the accused person is the opportunity to get their arrest and court records expunged. Upon successful completion of a pre-trial diversion program the criminal charge would be dismissed. Once the statute of limitations expired (two years for misdemeanors) the person could file a petition to expunge the arrest and all associated court and government records. If the person failed to successfully complete the pre-trial diversion program, they could be prosecuted as usual.

Pre-trial diversion could work in Brazos County. I've talked to prosecutors about it from time to time. Some agree, while others believe only a conviction would serve the interests of the community. I know this, however. If my clients have no incentive to resolve their case short of a jury trial, then a jury trial we will have . . . along with the clogged court dockets and delay.