Day Three Complete

The punishment evidence yesterday showed during the last 10 years my client had lived in the free world less than two months. In March 2006 he was paroled after doing 9 of 15 years for a prior burglary. In May 2006 he was caught inside the victim's house stealing a watch and was imprisoned in the county jail until trial this week.

Our goal during the punishment phase was to provide mitigating evidence to the jury. Since 1990 my client had been treated for mental illness with a history of commitments to the Austin State Hospital, Rusk State Hospital, and a private psychiatric facility in Bryan, Texas. In addition to the typical psychiatric evidence you might expect to hear, there was evidence of my client's bizarre suicide attempt in 1996. After finishing dinner one evening, and without warning, he went out into the back yard and took off his clothing. He then poured gasoline on his clothes, put the clothes back on and set himself on fire. If not for the quick action of his brother to extinguish the flames my client would have surely burned to death.

Some interesting evidence was provided by the victim himself. After confronting my client inside his home, he testified my client was acting in a bizarre way. He described him as "babbling," "wild-eyed," and "confused." When the police apprehended him a few minutes later they described him as incoherent and disoriented. Interestingly, the psychiatrist's incompetency report prior to trial revealed the same symptoms. "Fragmented thinking," "delusional logic," and "thought blocking." For the record, we considered the insanity defense but did not raise it at trial.

A big problem for my client was his continual refusal to submit to mental health services when available and his refusal to take medication. Obviously, the two prior trips to the pen for burglary did not help. The reports also said my client may be manipulative and malingering.

The jury assessed punishment at 40 years confinement. The minimum was twenty-five because of the prior felony convictions. I asked the jury to disregard the priors and assess a fair punishment. I argued "our society should be judged by how we treat the least among us, and Gary is certainly one of the least."

The paper called my house last night for comment. My comment was simple. "40 years was too much."

Day Two Complete

Attempting to post during trial is very difficult. Lawyers who try cases will tell you that during trial their attention, every minute of the day, is focused upon the trial - its strategy, witnesses, cross-examination, closing arguments, etc. A trial is a living and breathing thing. It rarely goes exactly the way we expect, let alone the way we want. Just like our children!

Day two of trial finished yesterday. I was too tired to post last night. I'm here at the office preparing my closing arguments on punishment and felt good enough to give you some insight into the trial.

As expected the jury found my client guilt yesterday. What was not expected was how long it took them to do it. Forty-five minutes. The case was a lay-down for the State. My client was apprehended less than ten minutes after the burglary and identified by the home owner at the scene of the arrest. DNA evidence from the scene easily tied my client to the home. During a confrontation with the home owner my client was stabbed and left blood all over the place. It was a daytime burglary. My client's physical description and clothes matched exactly what the owner had told the 911 dispatcher. I thought the prosecutor had a 10 minute guilty.

Well, today is another day. Another day to make an impact and have influence. I'll let you know how things went later in the day.

Day One Complete

I'm at the office preparing for day number two of trial. Jury selection went reasonably well today. I was able to identify a number of jurors who would be open-minded to our case and sympathetic to my client's fight with mental illness. I was able to protect these jurors from the State's strikes for cause. Moreover, since there were far more than 10 jurors with similar mental health experiences, the prosecutors were not able to strike them all. No double strikes, either! Overall, I am satisfied with the jury impaneled. It's never a perfect jury, but I'm cautiously optimistic about the 12.

The State's opening witness was the alleged burglary victim. Consistent with our defensive theory, the home owner admitted the intruder was "wild-eyed," "babbling," and "nonsensical" when confronted. It is always good when the State's own witness is making the case for you. Also, I think the evidence up to this point raised the issue of lesser offenses, like criminal mischief of a habitation and theft.

See you tomorrow.

Trial Day

The night before a trial is never a restful one for me. Regardless of the trial's complexity I still find myself waking up in the middle of the night evaluating and re-evaluating my strategy for the coming day.

Last night was no exception. I was up at 3:50 am fine-tuning my jury selection questions as I watched the alarm clock tick away. I was hoping to fall back asleep before it was time to get up. No such luck. I turned off the alarm an hour early and got ready to come into the office. Alas, the life of the criminal defense lawyer.

Jury selection should take most of the morning. I hope to find a jury receptive to my theory of the case and open minded. After lunch I expect the judge to hear and rule on the motions to suppress we filed earlier. I don't expect to win these, but it gives me a chance to hear much of the evidence before the jury does. Consequently, it helps me to improve my cross-examinations for when the witnesses testify before the jury.

See you soon.

Trial This Week

Trial preparation is a very busy time. This past week I've been preparing for a trial in which my client is charged with burglary of a habitation. In other words, the State alleged my client entered someone's home without the owner's consent and with the intent to commit theft. Alternatively, the State will prove that, in fact, theft was committed by my client while inside the home.

This case is unusual since my client was found incompetent to stand trial last March and was hospitalized until August 15, 2007. The doctors at Rusk State Hospital stated he was now competent and had a rational understanding of the proceedings against him. However, it's been extremely challenging to discuss the case with him and gain his trust. Compounding the problem is the solid case against him. Additionally, the client's prior trips to the State prison make his minimum punishment 25 years, with a maximum of life. The client has been unwilling to negotiate any settlement short of trial.

I couldn't think of a more unjust result than this man receiving even the minimum possible punishment. Since 1990 he's been in and out of the state mental health and mental retardation services system. He is clearly troubled and unable to properly provide for his needs. The prosecutors were unwilling to recommend anything other than 25 years to do. My attempts to persuade them to drop an enhancement and offer something reasonable have fallen upon deaf ears. The client's family is behind him and will be present for the trial. I expect his mother and father to testify at the punishment phase if he is convicted.

I've been putting the finishing touches on my jury selection presentation. I just came back from the courtroom where I test-drove my "Keynote" presentation and made sure all the wires, electrical cords, and the like were in good working order. If I knew the prosecutors did not read this blog, I might share some trial strategy with my readers. That will need to wait, however. Until then, I'll continue to enjoy the life of a Texas criminal defense lawyer and get ready for trial.

Anonymous Criticism

Following is an anonymous email I received today from my business website and my response. I apologize upfront for the edginess of both.

From: "saveyoursoul"

Just to let you know I was very impressed with you until I saw how you proudly state that you represent people accused of having child porn and the examples you give of how you defend sex crimes. You either have no conscious or you are an offender yourself.

To: "saveyoursoul"

Thank goodness I wasn't trying to impress you.

If you are going to criticize me, why do you hide behind an anonymous email and bogus phone number? You obviously lack the courage to stand behind your criticism of me and my profession. If you want to discuss this issue like adults, why don't you call and make an appointment to visit me in the office.

While in the office we can discuss how Christ faced the adulterers, thieves, and every other sinner he came into contact with, which includes you by the way. Christ offered all redemption and forgiveness for those who placed their faith in him. What makes your sin any different, in God's eyes, from the people that I represent? None, I'm afraid.

While in the office we can discuss the civil liberties you enjoy, presumably as a United States citizen. These liberties are the cornerstone of our great democracy. I help protect this democracy by keeping the government in check and fighting for every person I represent, regardless of the crime. Isn't that why we went to war in 1776?

I don't mind being criticized. I do mind being criticized by anonymous emails. So step up to the plate and give me a call.

Stephen Gustitis

Ghostwriter (II)

I was glad to see Mark Bennett posting about law practice management blogs. Not because I think Mark needs to improve his practice management skills, but because these blogs have great ideas for making criminal defense lawyers better business people. These blogs explore ideas that help us provide better service to our clients.

However, Mark challenges Ed Poll of the LawBiz Blog about using anonymous "ghostwriters" to write one's law practice blog. I agree with Mark's recent point. The idea behind blogging is to develop trust and credibility. Over time, the blog reader learns to trust the opinion and communications skills of the writer. Mark notes:

"Blogging is done to raise one's credibility. The credibility to be raised is the lawyer's. The expertise being sold is the lawyer's. The communications skills being sold are the lawyer's."

There is a difference between paid media and earned media. (credit Hugh Hewitt) Paid media is what you buy and control the content of like television commercials and print advertising. Earned media is the attention of the media you earn by doing what you do and doing it well. One can earn the attention of the blogosphere, but it requires hard work. The lawyer who is using the "ghostwriter" to earn credibility with the buying public is deceiving them.

Whether it is credibility in the courtroom or credibility among the buying public, it is the responsibility of the lawyer to develop the credibility with perseverance. If you are a criminal defense lawyer and a "ghostwriter" is writing your blog, you need to reconsider the ethics of doing so. Thanks again Mark for bringing this issue to light.

Texas A&M Disciplinary Sanctions

Our first look at the Texas A&M Student Conduct System was posted here. The follow-up post on student rights associated with disciplinary hearings was posted here. Today we'll study the potential sanctions resulting from a University Student Conduct Hearing. For a comprehensive list of sanctions look here.

There are primary and secondary sanctions resulting from disciplinary action at Texas A&M University. More than one primary sanction, or any combination of primary and secondary sanctions, can be imposed upon a student. Please note these sanctions are in addition to any punishment assessed by a criminal court.

The most serious sanction is Expulsion from the University. This means the student is never eligible for readmission. Dismissal is a less severe sanction where the student is separated from the University for an indefinite period of time. At the end of the separation period the student may reapply for admission. However, readmission is not guaranteed.

Suspension from the University means the student is separated for a definite period of time. However, just like the dismissal sanction the student is not guaranteed readmission, but only guaranteed a review of the case and a review of the decision regarding readmission. Deferred Suspension means the student is not actually separated from the University but is place on "probation" pending the good conduct of the student. Students on deferred suspension are not in good standing with the University.

Conduct Probation is a common sanction for less serious violations of the Student Conduct Code. This sanction results in an official warning that the student is in violation of the University Student Rules. Students on conduct probation are not in good standing with the University. Conduct Review is like conduct probation except the student remains in good standing. This sanction might require the student to meet with University staff on a regular basis while their conduct is under review.

There are further primary and secondary sanctions that might be imposed upon a student in violation of the Student Conduct Code. If you have questions about these, visit this link. Needless to say, none of these sanction options are a good choice for the aspiring young college student. So next week we'll talk about avoiding trouble with the University and local law enforcement.

An Irrational Jury

The 14th Amendment's Due Process clause and Jackson v. Virginia allow the Bryan criminal appeal lawyer to argue a jury was irrational when they rejected a client's defense and convicted him of the offense charged. If the higher court is persuaded by the argument, then the client is acquitted. Essentially a finding of not guilty on appeal. In Texas, appeal lawyers have another arrow in their quiver regarding the jury's rejection of a trial defense. If the higher court believes the conviction was against the great weight and preponderance of the evidence, the court will send the case back for a new trial. Not as good as an acquittal, but certainly a good day in the office for any criminal defense lawyer.

I ponder these legal principles having just completed a brief on appeal to the 10th Supreme Judicial District Court of Appeals in Waco, Texas. My client is hoping for a second chance from what we believe was an irrational decision by the jury to convict him of unlawfully carrying a handgun. The handgun was found underneath a sleeping bag, which was inside a van where he was living. At the time of the alleged offense, in Texas, a person was permitted to carry a handgun on their own premises, or premises under their control. The definition of premises included a recreational vehicle being used as living quarters, a travel trailer, camping trailer, truck camper, motor home, or horse trailer with living quarters.

My client was a good man looking to find his way after being recently divorced from his wife of 7 years. He was having trouble finding regular employment and keeping a roof over his head. Consequently, his father spent $850.00 and bought him an old Ford Econoline van. Dad told his son to live in the van until he got his feet on the ground. For six months my client lived, slept, and ate out of that crusty old vehicle. He built shelves inside to store his worldly possessions, he rigged an old car battery for power to run a television set, he kept a couple ice chests in the back for storing food. His bed was an old sleeping bag and pillow. The van was also full of dirty clothes and smelled just like you'd expect.

The officers who testified at trial said it looked like my client was living in the van. My client's father testified he was living in the van. My client testified the van was his home containing all his worldly possessions. Even the local librarians who knew him said they thought he was living in the van. The prosecutor fought me tooth-and-nail to keep this defense out of the jury instructions. However, the judge thought better of it and granted the request.

Needless to say the jury rejected our argument. Now we hope the Court of Appeals will recognized either the irrational jury decision, or that the great weight and preponderance of evidence favored an acquittal. An appeals court is a tough beast to tame, but we'll continue to maintain hope on this one.

Work Harder, Work Smarter

Last week the Frisco DWI Lawyer and Robert Guest (I Was the State) posted here and here about techniques being taught to state prosecutors for cross-examining persons accused of DWI. These bloggers noted how the prosecutors are taught to "spin or ignore evidence of innocence." They are taught to attack the credibility of the client by developing "time lines" which the client cannot explain, thereby impugning their testimony. They are taught to presume guilt and argue the client had a motive to lie and testify that he was not intoxicated.

Frankly, I don't have a problem with what the prosecutors are learning. Trial work is hard-ball and I don't fault my adversary for developing potentially winning tactics. We criminal defense lawyers do the same thing when we attack the arresting officer or the breath test operator. We do the same thing when we argue motives for why state's witnesses are lying, or stretching truth. That's our job, too.

The job of the criminal defense attorney is to prepare the client, and the jury, for such attacks. To anticipate what our adversary might do in trial and have contingency plans. Preparing for trial is hard work. Preparing the client is hard work. Testifying does not come without risk. The good criminal defense lawyer is always tapping their well of knowledge and experience to out-wit and out-maneuver the prosecutors wherever they can.

Additionally, the criminal defense attorney is building a persuasive case from the juror's point of view, taking into account what must be admitted and what the key contested issues will be. It is the persuasive case that wins decisions from the jury. Since the jury decides whether the case is persuasive, it must be built with their values and beliefs in mind. Hard work, brainstorming, and critical evaluation are the keys.

Let the prosecutor try. The point is we must try harder, work smarter, and know the facts better than the other guy. Thanks to the Frisco DWI Lawyer and I Was the State for giving us insight into what the prosecutor's game plan might be.

Texas A&M Student Rights

Last week we started our look at the Texas A&M Student Conduct System. We learned the disciplinary system was not designed to establish criminal guilt, but there were procedures built into the system that could cause the accused student to incriminate themselves. This week we'll look at some selected student rights that apply to University disciplinary proceedings. These rights apply to a student conduct proceeding that might result in expulsion, dismissal or suspension of the student. An accused student subject to less severe sanctions may, or may not, be afforded these rights:

First, the student has the right to be informed in writing of all charges at least three class days before any hearing. This is what we talked about last week when Student Conflict Resolution Services sends a letter to the student at their address on file with the University. When you receive this written notice you should contact a College Station criminal defense attorney immediately to advise you.

Along with the right to notice, the student has the right to reasonable access to the case file. The file is maintained by Student Conflict Resolution Services. If the student is a member of the Corps of Cadets the case file is maintained by the Office of the Commandant. Access to this file is very important, especially for your defense lawyer. Since the prosecutor's policy in Brazos County is to maintain a closed file, access to your University file can help your lawyer get information about the case they would not otherwise be entitled to receive. Simply sign a release form provided by Student Conflict Resolution Services allowing your lawyer to get access to the file.

The student has the right to remain silent during student conduct proceedings. However, many students mistakenly waive this right when appearing at a hearing, which causes problems we discussed in last week's post.

The student also has the right for one person to serve as a personal advisor during the hearing. This person can, and should be, a criminal defense lawyer. However, even though the advisor may appear at student conduct proceedings with the student, they may not represent the accused student or directly question or cross-examine witnesses. This rule presents a problem. In past cases where I've counseled accused students, we prepared a list of questions for the student to ask their accusers. In one case we spent 3 hours taking the deposition of the alleged victim through written questions prepared in advance.

The student has the right to request the University make an audio recording of the student's own proceedings at the student's expense. The record will then become part of the student's conduct file. This recording is useful after questioning key witnesses since we can obtain a transcript of the recording for future use.

These were some selected student rights with which you should be familiar. Feel free to review the comprehensive list here. Next week we will review the possible sanctions imposed for violation of the Student Conduct Code.

Adjusting Client Expectations

Shawn Matlock posted here about the "The Business of Winning." He made some important points about the practical aspects of the criminal justice system including the reality of plea bargaining. Shawn stated: "There are degrees of winning, and there are degrees of losing. A win for one client is a loss for another. Every case is different. Every client is different." Earlier this summer, Mark Bennett posted here about "winning," as well. Mark stated: "If 'losing' means having a jury convict a client, then any lawyer who tries criminal cases, loses cases. The lawyer who has never had a client convicted by a jury hasn't tried enough criminal cases."

Identifying and managing the expectations of our clients and potential clients should be a normal part of our client intake systems. A satisfied client is one who's realistic expectations about their case have been met, or exceeded. Consequently, criminal defense lawyers must be in the business of realigning any unreasonable expectations of our clients, both outcome oriented and service oriented. What Shawn and Mark were doing in their posts was exercising the important skill of adjusting client expectations. In other words, these experienced lawyers were "under-promising" but "over-delivering."

This client management truth was best illustrated in the original Star Trek science fiction T.V. series. Scotty, the Enterprise's chief engineer, constantly under-promised but always over-delivered when getting Captain Kirk and the ship out of trouble. In every engineering crisis, because of the constraints of time, resources or physics, Scotty would declare a solution impossible. But he'd always deliver just what the Captain needed, just when he needed it, to save the ship and crew.

If we want our clients to be satisfied we must help them develop realistic expectations. To exceed their expectations they must have a reasonable outlook on what can be achieved in the defense of their criminal case. This should be a normal part of the criminal defense lawyer's client intake process.

On Plea Bargaining

Clients often ask whether they should plea bargain their case. Austin DWI Lawyer, Jamie Spencer, recently posted about plea bargaining in the context of DWI defense practice. Since so many prospective clients ask about the process I thought I'd post some answers to commonly asked questions regarding plea bargaining in Texas state court.

In a plea bargain the accused person agrees to enter a plea of guilty, or no contest, in exchange for a punishment recommendation from the the prosecuting attorney. The prosecution may agree to dismiss or reduce certain charges if the defendant agrees to accept a plea bargain. Much of the time, plea bargains involve a deal that reduces punishment, or the risk of greater punishment to the person accused. Furthermore, the accused can avoid the time and cost of defending themselves and the publicity a trial could involve. The prosecution saves the time and expenses of a trial, while both sides are spared the uncertainty of trial.

The judge is not bound to follow the prosecution's recommendation, however. In other words, the judge reserves the right to reject the plea bargain if the judge feels uncomfortable with the deal, or if the judge feels the accused has not voluntarily waived their rights. What are the rights the accused waives in exchange for a plea deal? The big three are the person's right to a jury trial, the right to confront and cross-examine witnesses, and the right to remain silent.

When the right to a jury trial is exercised by the accused, it forces the State to prove each element of the the criminal allegation beyond a reasonable doubt. If the State is not able to unanimously convince a jury of 6 (misdemeanor) or a jury of 12 (felony) that all the elements have been proven, the accused person is legally entitled to be acquitted of the charges. An important right, to say the least.

When the right to confront and cross-examine one's accusers is exercised, the evidence presented by the State is tested through questioning by the accused or their criminal defense lawyer. Weaknesses in the evidence can be exposed through the exercise of this right. Under the right set of circumstances the State's evidence can be discredited to such a degree that it is unable to meet the burden of proof - beyond a reasonable doubt. Again, this results in an acquittal for the person charged.

When the right to remain silent is exercised by the accused, the State must prove it's case without the help of the person charged. In other words, the State cannot call the person accused to the witness stand and force them to risk self-incrimination. The person can remain totally silent during the trial and that cannot be taken as a circumstance of guilt against them. Nor can the prosecuting attorney comment upon the person's silence.

Before a judge can accept a plea bargain recommendation, the record of the case must show the person voluntarily and knowingly waived their rights and plead guilty to the charge. Texas courts are required to take proof of this to ensure the waivers on the record reflect a voluntary and knowing waiver of the big three.

Critics of the system claim the plea bargain system can put pressure on defendants to plead to crimes they know they did not commit. Furthermore, they claim the outcome of a plea bargain may depend strongly on the negotiating skills and personal demeanor of the criminal defense lawyer. Critics also claim the system encourages prosecutors to overcharge at the start of a case which leads to caseload pressures or unusually severe penalties for the accused. Lastly, the plea bargain may itself carry unintended ramifications. See here, here, here, and here for posts on the collateral consequences of pleading guilty.