Friday, February 29, 2008

Getting Between a Lawyer and His Blog

Real work always gets between the Brazos County criminal defense lawyer and his blog. Next week's bank robbery trial is keeping the trial psychosis fires burning brightly. My wife is already talking to me like I'm a stranger. I'll be in touch and thanks for stopping by to visit.

Wednesday, February 27, 2008

Inflexible Policy Unjust

The Brazos County District Attorney's Office implemented a policy a few years ago they would not agree to bonds for adult probationers who had a motion to revoke probation (MTR) pending. Once a motion to revoke was filed the defendant was typically denied bond until they were arrested and the trial court judge reviewed the case. Persons on felony probation were not entitled to bond under law, but could obtain one if the judge approved. Persons on misdemeanor probation were eligible for a bond, subject only to what amount the court deemed appropriate.

Before this policy was implemented a defense lawyer could approach the D.A.'s office and reach an agreement regarding the setting of bond. The procedure saved everybody. It saved the county the expense of housing someone in jail for longer than necessary. It saved the court's time by not setting each case for a bond hearing. It saved the defendant's time and money since the sooner they bonded out the sooner they could get back to work. And it saved the sheriff's transport team time by reducing their number of transports from other counties.

Somewhere along the line the D.A.'s office got burned by an agreed bond. Human nature and their desire to cover the derrière kicked in and, wa-la, we have a policy. I don't have a problem with office policies. But I do have a problem with implementing them without exception.

My client was on probation for a misdemeanor delivery of marijuana case. He had allegedly violated his probation by coming-up dirty on a few urine screens and failed to complete community service on time. He was current on all his financial payments and had not missed a probation meeting. The D.A's office issued the motion to revoke and the judge denied bond. The client was arrested in Harris County and was awaiting transport to Brazos County. After talking to the transport team, they explained they couldn't transport my client until the middle of next week.

I went to the District Attorney's Office and talked with the elected official, Bill Turner, about making an exception to his policy. I explained my client was on misdemeanor probation, was faithful to reporting, but had failed some UAs. Turner told me no without explanation. My client was no threat the community. I asked him at least three times why he wouldn't agree to a bond. He refused to give me the courtesy of justifying his position.

Bill is good at eyeballing you - but today it betrayed his true feelings. His patent arrogance shined through like a beacon. Anyone watching could have told you he didn't give-a-hoot. I've known Turner for a long time. Almost eighteen years now. I worked for him four of those years. Regrettably, he has really changed for the worse over time. It is disappointing he's comfortable with such a curt and haughty attitude toward the defense bar.

In Like a Lion

I feel the trial psychosis creeping up behind me this week as March comes in like a lion. I'm preparing for two jury trials set #1 on the court's docket next month. Next week I try an aggravated robbery case in state court. The issue is guilt or innocence. My client allegedly went into the College Station, Texas State Bank with three cohorts and robbed the tellers at gun point. This is a good case to try and I'm looking forward to the fight. I'll be brawling with accomplice witnesses and I always love cross-examining the snitchs.

After the bank robbery trial I'll have a week to prepare for the next heart-wrencher set in mid-March. Yet another aggravated robbery the prosecutors affectionately call a "home invasion." My client allegedly forced his way into the home of some local drug dealers with an accomplice. There will be much more emotion wrapped-up in this trial. That's all I'll say for now as not to reveal any trial strategy.

Like last fall I'll attempt some live blogging during trial to give insight into the goings-on.

Monday, February 25, 2008

Experiencing Forgiveness

I was studying Jesus' parable of the unmerciful servant this weekend. It helped me understand the harsh spirit of many who find their way onto jury panels who decide the fate of our criminal defense clients. A short recap of the parable is instructive.
A servant owed the king an unfathomable amount of money. Since the servant could not pay his debt, the king ordered the servant and his family sold into slavery to repay it. The servant begged the king to forgive the debt. Since the king was a man of great compassion he assumed the loss and forgave the servant.

This same servant was a creditor to another man who owed him a pittance compared to the debt the king had just forgiven him. Rather than sharing the forgiveness he had received, he mistreated the other man and demanded repayment. The other man begged the servant to forgive his debt, but the servant refused.

The king learned of this and brought the servant to him saying "Shouldn't you have mercy on your fellow servant just as I had on you?" In anger the king turned the servant over to the jailers until he should pay back all he owed.
What's the lesson? The servant received forgiveness but he hadn't really experienced forgiveness. Consequently, he was unable to share it with those who had wronged him. He was unwilling to grant to others what he wanted others to grant to him.

He lived only according to justice and became a prisoner of his own unforgiving heart. But had he lived according to forgiveness, had he experienced the forgiveness accorded him, had he shared with others what was shared with him, then he would have enjoyed his freedom.

How do we apply the lesson? First, we must experience the forgiveness accorded us rather than just being happy we're off-the-hook. To experience it, we will know it. Then we learn to identify people who share our experience. Those who live according to forgiveness, rather than justice. Strike everyone else.

Friday, February 22, 2008

Things of Beauty

While living the demanding life of a central Texas criminal defense lawyer, I've often pondered my need to create something beautiful. I'm not sure if it's the creation or the beauty that intrigues me most. But for the busy defender of individual rights this desire is regrettably supplanted by court dockets, trial preparation, law practice management, and the tyranny of the urgent.

That's why the story of criminal defense lawyer, Shawn Askinosie, piqued my interest today. Shawn was (or is) a Missouri criminal defense lawyer who pursued his yearning to create something people can appreciate. Shawn lost his father to cancer at a young age and started Lost & Found, an organization that provides emotional support to children who have lost a family member and are working through the grieving process. But recently, Shawn opened his company, Askinosie Chocolate. In the Kansas City Star, this article chronicled the story:
But in two short years he [Askinosie] has built a chocolate factory and started selling his namesake single-origin, bean-to-bar chocolate to boutique customers scattered from San Francisco to Sweden.

Askinosie’s transformation from criminal defense lawyer to artisan chocolate maker has been every bit as trying as the series of high-profile murder cases that landed him on “Dateline NBC” and sparked death threats against his family.

For stress relief, Askinosie started grilling. Over the next few years he moved to baking, eventually becoming obsessed with cupcakes and chocolate desserts. Then, on his way to a funeral in 2005, he was struck by the idea of making chocolate from scratch.
Most of the time, lawyers are helping people control the damage of judgment gone awry or damage in the aftermath of tragedy. But I'm convinced we each have a deeply ingrained need to fashion things of beauty. Something we can step back from - admire - and cherish in the company of our best friends and loved-ones.

Shawn is seeking out his passion - a passion to create something others will love and appreciate. I hope each of us will seek out our own passion to create things of beauty - be it art, music, food, or whatever suits our fancy.

Thursday, February 21, 2008

The Mythical Winston Churchill

I'm having fun getting to know fellow Texas lawyer, Brian Cuban, vicariously through Brian Cuban's Blog. Once you get past Brian's sarcasm, he's really quite witty. Check out this post about an educational tragedy.

According to sources (I wish Brian would have cited; hint), 25% of British youth did not believe Winston Churchill existed. When I first read the post I thought the Limey youth did not know who Churchill was, but in fact they believed he was merely a mythical figure.

The reason this post struck home was the regrettable reality many of my criminal defense clients probably don't know who the last two United States Presidents were, let alone a world figure like Winston Churchill. Brian's main point was the failure of an educational system leads down a slippery slope to disenfranchisement. And once disenfranchised, youth would have no problem "turning on their own . . ."

Great insight and a great post. And Brian, do you wonder why Texas history is mandatory in our public school system?? If anarchy is inevitable, we can go back to being our own county.

Wednesday, February 20, 2008

Good Sense On DWI

Somebody is finally talking some good sense in the Brazos County race for County Attorney. My comrade and fellow Brazos County criminal defense lawyer, Lane Thibodeaux, commented in the Bryan Eagle about how featherbrained the legislative bar is against deferred adjudication for DWIs in Texas. A product of the MADD lobby, I'm afraid. In any case, Lane is right and we hope somebody in Austin is listening.
Currently, DWI is one of only a handful of crimes for which deferred adjudication probation is not, by law, a punishment option. The hypothetical 21-year-old college student with no prior criminal history is therefore not eligible for consideration of this type of probation. The lack of this option handcuffs prosecutors dealing with this common scenario. It also is a financial boon to criminal defense attorneys such as me.

This defendant, if convicted, will most likely receive probation in the typical DWI case. No real incentive to plead the case exists. Additionally, although members of the community are all about punishing DWI in the abstract, when in a jury box, facing down a 21-year-old engineering student whose life could be inalterably changed by a guilty verdict, their views understandably soften.

When faced with these realities, prosecutors become creative. They use other penal statutes to charge the defendant on a deferred eligible crime that addresses rehabilitative needs rather than risk the possibility of an acquittal and no supervision.

Rather than forcing prosecutors to engage in charade, the Legislature should allow the option of deferred adjudication for first time offenders of DWI, but also allow it to be used as an enhancement to any subsequent DWI prosecution.

Fee Setting

The successful practice of law is more than setting fees. But establishing a price for our services is necessary and is actually a way to distinguish us from other lawyers we compete with in the market place. I want my prospective clients to know up front I will not compete with other lawyers on price. I'll compete on service, effort, and expertise, but never on price. Michael Sherman at Lawyer Profit Systems says here:
If you are doing the things in your practice that you should be doing (e.g. choosing a niche, being the expert in that niche, providing exceptional client service, etc.) then you’ve earned the right to charge more for your services. But, unless you believe that, your prospective clients never will.

And, here is one more reason for you to believe it: you never want to compete on price. There is no doubt that you can build a business entirely by offering the lowest price. But, why would you want to? Would you rather have 4 clients paying you $25,000 each, 100 clients paying you $1,000 each, or 1000 clients paying you $100 each?

Of course, the question is rhetorical. But the answer is instructive.

Additionally, when you compete only on price, all someone has to do to take a client is to offer a lower price. When you compete on EXCELLENCE, VALUE, GUARANTEED SERVICE, etc. it is much more difficult, if not impossible for a competitor to steal your clients.

I know there are successful lawyers who disagree with this theory of law practice management. But that's the horse I've chosen to ride. It may be difficult for the client to understand, as well, but they're getting better service in the long run.

Client Communications

Brian Cuban, a Dallas attorney and brother of Dallas Mavericks owner Mark Cuban, had a cynical appraisal of client communications this week on his "Brian Cuban's Blog. After reading Brian's post, I wondered if he had any clients after his 20 years of practicing law. He was commenting on this post on Tom Kane's Legal Marketing which advocated lawyers should be smart by making it convenient for both clients and prospects to reach them when necessary. This is what Brian said:
It is a time tested and well accepted position that 98 percent of attorneys don't give a shit about who can get a hold of them and for the most part actually go to great lengths to keep people from getting a hold of them unless of course the person is calling about their unpaid bill or the call will generate a substantial billable rate. If the call will not generate a fee you have as much chance of talking to the attorney as Johnny Cochran rising from the dead. Client goodwill is something only mused about in terms of what you could have done after the client has told you to F*** off and/or files a grievance with the State Bar. Not that you will learn anything when you send the next client's call to voice-mail.

The golden rule from what I have seen is that a client is just a means to an end with no form substance or history unless a payment is late or a trial is about to start.... Other than that all phone calls are unnecessary time wasting annoyances. Client service is for sales people. We attorneys are not sales people, we are highly educated and skilled professionals who are above client service small talk. You come to us for results, dog us when we don't get them and forget about us after we come through. Doesn't this justify the fact that I don't give a shit about you the client? Right? Of course right!
Well, I can't add anything to that! Other than wondering whether Brian had any clients, I also wondered why he would muse over posts at a legal marketing blog? I guess just looking for cannon fodder for his next post.

Tuesday, February 19, 2008

Jury Selection Pro

An attorney in California offers a product for criminal defense lawyers to help them choose juries more successfully. The San Diego Business Journal tells the story here:
The product, called Jury Selection Pro, consists of preprinted cards with questions and potential responses; grids to help organize notes; references to relevant case law that can be cited as a basis for challenges; and specific legal language that can be useful in an appeal.

Most jury selection products on the market are treatises on jury psychology, which offer little use for the trial practitioner, he said.

“After discussions with other lawyers and my own experience, I came to realize what questions got to the heart of the matter and what answers are easier to challenge,” he said. “This is a practical use and methodology tool.”

Lawyer, Shaun Khojayan, tells more about his product here on video. If "Jury Selection Pro" was simply a tool to organize lawyer notes and thoughts during the stressful and complicated jury selection process, I'd be all for it. But it purports to be more - too much more.

I have not seen the product myself, but Khojayan's video seems to over-simplify the jury selection process and package it like a ham sandwich. I don't buy pre-packaged sandwiches so I won't be dropping $150.00 on Jury Selection Pro. However, it you've got some money to burn it might be interesting to see what Khojayan's got to offer.

Monday, February 18, 2008

Seeking Justice or Convictions

Are we buying the argument offered by candidate Shane Phelps that the Brazos County Attorney needs to try more DWI cases to better serve the community's interests? In an interview with Bryan Eagle reporter, April Avison, Phelps again found fault with the current administration's policy of plea bargaining cases.

Plea bargaining is a fact of life in the criminal justice system. You can't try every case, nor would you want to. Judge Jim Locke's take on the issue?
"Between 2,500 and 3,000 cases are filed in each court on an annual basis," Locke said. "It doesn't take long to realize that the way to keep up with that many cases is to dispose of 60 a week. We can't have 60 trials a week. We can't have 10. We can't have five. The huge majority have to be disposed of by plea bargain."
Prosecutors habitually tell us their job is to seek justice, not convictions. If this is so, then why complain when problem DWI cases, or those charged against first time offenders, are reduced to lesser charges? If society is better served by getting a first-time offender into the justice system by plea bargaining, then why spend time and resources trying cases to a jury, especially when you might lose?

If Phelps believed the prosecutor's credo, then his criticism of his opponent's administration is without foundation. He complained too many DWIs were reduced to lesser charges. He complained those reductions could not be used to enhance future prosecutions if the person became a repeat offender. I disagree those reductions can't be used. They certainly can be used in the punishment phase of any future prosecution.

With arrogance, or bravado, Phelps remarked:
"I will be able to double the number of trials in this office without breaking a sweat," he said, adding that while he understands cases have to be negotiated out of court, the current administration is allowing far too many.
Again, I believe Phelps is going out of his way to pick a fight on this issue. It's not surprising during the election season, though. Nonetheless, if Phelps wants the county attorney job he needs to develop better arguments for why he's the man for the job. Being a better trial attorney, or someone willing to try more cases, does not necessarily serve the community's interest any better that a person with good judgment who decides cases are best resolved by plea bargaining.

As an aside, I'm glad to see the local bar getting into this fight.

Saturday, February 16, 2008

Bryan Eagle Favoritism?

To apprise the public of important issues in the Brazos County race for county attorney prosecutor, I've commented here and here on contrary public opinions offered through the editorial section of the Bryan Eagle about candidates Shane Phelps and Rod Anderson. Not surprisingly, the Eagle editorial board may be showing favoritism to Phelps by failing to publish letters supporting Anderson on their website. Specifically, the letters published February 14th supporting Phelps were published on the website that day. However, letters supporting Anderson on February 15th were not published at all.

Consider writing Robert C. Borden, opinions editor, ( and ask what's going on over there.

Friday, February 15, 2008

Anderson Counters

In road cycling the counter attack usually comes after the initial move is reeled-in and caught by the field. There is often a short lull before the next guy goes off the front to gap the peloton, once again. Nevertheless, there was no lull in the fight for positioning in the race for Brazos County Attorney. In the editorial section of the Bryan Eagle, Rod Anderson countered yesterday's attack by Shane Phelps by offering opinions from former confederates at the county attorney's office.

Former assistant, Bill Ballard, wrote:
It has been my pleasure to have worked with Rod Anderson over the past 20 or so years. (I have also worked with the other candidate for Brazos County attorney) . . . Between the candidates . . . no one in the state of Texas possesses his expertise relating to criminal misdemeanors . . . Contrary to what some may say, consistency, not crushing and devastating change, is needed in the Brazos County Attorney's Office.
I'm note sure I agree with Ballard's assessment of Anderson's expertise. Granted, Anderson has worked for many years in the current administration. But I haven't seen Anderson try one case in my 17+ years of experience in the Brazos County courts. I might have missed it, but for the most part Anderson has worked as an administrator and screening attorney for new cases. I do agree, however, that consistency is what is needed not "crushing change." Phelps is a power rider who'd we expect "crushing" change based on his campaign literature.

Judy Adams also wrote in support of her candidate:
As first assistant county attorney, [Anderson] is in charge of misdemeanor crimes including DWI, minor drug offenses, criminal mischief, and theft under $1,500. The vast majority of these crimes were committed by young first-time offenders who do not re-offend.
Like my criticism of yesterday's opinion by Kirk W. Brown, I'm not sure where Ms. Judy got her facts, or whether she was properly woodshedded before authoring her opinion. I'm unaware of any statistics revealing the demographic and criminal history of misdemeanor offenders. Nor do I know of statistics showing the incidence of recidivism. Again, the voters in Brazos County need be aware of misinformation and self-serving rhetoric in this important campaign.

A few final points. Why aren't the letters in support of Rod Anderson on the Eagle website yet? The letter in support of Shane Phelps was up bright-and-early yesterday morning. Also, where is the local defense bar in this fight? I hope my compadres have the courage to speak their minds about this race. If not, I might need to start posting articles about them!

Thursday, February 14, 2008

Phelps Takes A Flyer

In a predictable move, letters to the editor are hitting the Bryan Eagle supporting candidates for Brazos County Attorney. This morning a letter authored by one, Kirk W. Brown, was written in support of Shane Phelps. (Brown is also supporting Phelps financially btw). Brown accused the current administration of "perpetrating a cruel hoax" on the citizens of Brazos County. Here's part of what Brown had to say:
Over the past three years, about one-third of the DWI cases have been reduced to lesser offenses, equivalent to a slap on the wrist for committing a life-threatening crime. When I asked why, I was told that the county attorney can't get a jury in Brazos County to convict a first-offense DWI or that our courts don't have the capacity. Of the 2,000 DWI cases filed in the past three years, only 24 have been tried. How do we know we can't get a conviction if we don't try? Surely our county courts can each handle more than four DWI cases each year . . .

Rod Anderson (Eagle, Feb. 2) said that it takes finesse to come up with plea agreements without creating huge backlogs of jury trials. He said, "I've managed the job for the past 15 years" and that he doesn't intend to make any major changes if elected. The backlog of DWI cases has increased from 91 three years ago to 400 at the end of 2007. As those cases age, they will become more difficult if not impossible to prosecute.
Brown's "slap on the wrist" criticism reveals his deep misunderstanding about how DWI cases actually get resolved. In the alternative, it reveals Phelp's failure to woodshed his witness properly. In either case, it's misinformation and needs clarification.

If one-third of DWIs are being reduced in Brazos County, then two-thirds are being prosecuted to a conviction. That's not too bad for an opinion crime, which Brown conveniently fails to acknowledge. Even if all 24 jury trials were tried to an acquittal, 1309
DWI convictions [(2000 x .666) - 24] during the past three years is not bad.

Of course, Brown does not reveal what's happening to the DWIs reduced. Typically, a DWI (class B misdemeanor) reduced in Brazos County gets pled to obstructing a highway, also a class B misdemeanor. That might not sound so bad. But ask the defendants how they like getting placed on probation subject to all the alcohol related conditions. Ask them how they like paying fines, court costs, and attorneys fees. "Slap on the wrist" is a rank mis-characterization of the facts and self-serving to Phelps.

Brown also complains
the backlog of DWI cases has increased from 91 three years ago to 400 at the end of 2007. Does Brown have a clue why? Well, if his facts are correct it tells me the current administration is reducing FEWER DWIs rather than more. It tells me the criminal defense lawyers are queuing-up their DWI cases up for trial since they have little to lose by doing so. See here for details. It tells me the County Court administrators might not have such great docket control.

In any case, do you know what usually happens when someone takes a flyer and goes off the front? They usually get caught. And when they get caught it's an awfully painful experience to catch back on before the finish.

Wednesday, February 13, 2008

Brazos County Election News

The candidates for Brazos County Attorney put their best foot forward this week in the local news magazine, aboutTown Press. In a nice little Q&A, both Rod Anderson and Shane Phelps claimed to be the best man for the job, but for differing reasons, of course.

Anderson believes he is better qualified because he's worked in the County Attorney's Office for 20+ years and knows the system. Anderson is a certified peace officer and has strong ties to the prosecution staff already on board. I'm not crazy about peace officers posing as prosecutors, but I've known Rod for a long time and believe he is a fair man.

Phelps claims he's the man because of his extensive experience trying both felony and misdemeanor cases all over Texas. He wants to try more jury trials in the county courts and sees this as the answer to making our county safer. He has an interesting proposal called "Second Chance." He didn't explain the program but it sounds like a pre-trial diversion program to me. Pre-trial diversion is akin to "informal" probation that often leads to dismissals upon successful completion of the terms. I like pre-trial diversion for many reasons and can't figure out why Brazos County has not instituted such a program long before now. Many counties in Texas sport such a diversion program.

What I didn't hear either candidate talking about is how they will make the justice system more equitable to those accused by re-tooling the discovery rules currently in place. Currently, the discovery process is extremely limited and without an open file which requires defense lawyers to beg and plead for information about their case.

Fellow blogger, Shawn Matlock, recently offered a comment here about the system in Tarrant County that provides for liberal discovery in criminal cases:
Tarrant County has an open-file policy. In fact, we are now completely electronic in that there are no more paper files. I get access to my client's D.A. file via a secure website.
This is what I'd like to hear both Phelps and Anderson talking about in more detail. If they want support from the local bar, they need to think about developing systems that help resolve cases more quickly and evenhandedly.

Defense Discovery Revisited

In light of my recent post, "Trial by Ambush," here's a developing story about the inequities of discovery rules in Texas relating to the defense of citizens accused of crime. A quote from the February 12th edition of the Houston Chronicle:
The right of a defense attorney to use a copy machine to do his or her job shouldn't be a big deal.

But in Harris County, some prosecutors consider themselves generous if they allow a defense attorney a peek at the case file and the chance to copy down witness names and other vital information by hand.

"It's like this unwritten rule we've always had," says Kelly Siegler, a chief prosecutor and Republican candidate for district attorney.

Defense attorneys have complained about that unwritten rule for years.

"It's a blatant attempt to make the system unfair to us. It always has been," says Patrick McCann, president of the Harris County Criminal Defense Lawyers Association. "And frankly, when you can hit a button and e-mail me a copy of the report, or fax me a copy of the report, there's no reason not to."

While Siegler notes that the law doesn't require prosecutors to allow copies, she says she finds the no-copy rule "silly" and plans to get rid of it if elected.

"I know how prepared I like to be going to trial, and I think if I was a defense lawyer, without having the offense report to go by, to study, to examine, it would be very difficult to be as prepared," Siegler says.
Well, there's a fine "how-do-you-do." Why does it take rocket science and an election in Harris County to figure out the system's unfair? Just start making us copies and give us access to the files. You never know. The system may just work better.

Friday, February 8, 2008

Picking Our Battles

The best advice given the 250+ criminal defense lawyers attending the DWI Winning Edge training conference came from Mark Daniel. He didn't blow sunshine up our skirts. Rather, Mark told us something we already instinctively knew - defense lawyers must know how to pick their battles. And the best battles to fight are battles we have have a reasonable chance of winning.

A breath test case with a good video is a battle worth fighting. There the State's evidence is internally inconsistent with itself. Jurors are reluctant to convict when evidence they see, smell, and feel for themselves is not consistent with what the police and their experts try to tell us are facts.

So simple, yet so profound. Fight the battles we can win.

DWI Winning Edge

Today is training day at the Center of American and International Law hosted by the Texas Criminal Defense Lawyers Association. The program is focused on the defense of DWI in Texas, particularly the defense of breath test cases. The thought-provoking approach to defending the DWI breath test case boils down to one of 4 related strategies.

Going Head-to-Head with the State's technical supervisor by attacking the accuracy of the breath test result. In other words, was the breath test result accurate beyond being simply valid. Just because a breath test result is regurgitated from the machine and is a valid result, that doesn't mean it reveals an accurate determination of my client's breath alcohol level at the time of driving.

Garbage-In/Garbage-Out. There are many variables of human physiology which the breath test machine makes assumptions about. It makes the assumption my client's breath was a certain temperature. It makes assumptions about the ratio of alcohol in my client's breath compared to the alcohol in their blood. It assumes the breath sample came from the deep lung area rather than my client's mouth. There are many more problem assumptions which show if garbage goes in, then garbage comes out.

Believe What You See. The best DWI breath test defense often hinges on a good video. If my client looks reasonable good (sober) on the police video, how could the breath test result over the limit possibly be right? It is a great common sense defense that jurors can easily relate.

No Extrapolation. Regardless of my client's breath test result at the police station - the jury must still believe beyond a reasonable doubt the test result would have been over the legal limit at the time of driving. This is because the human body absorbs and eliminates alcohol from the body over time. It is possible the breath test result at the time of driving was less (under the limit) than at the time of the test.

Anyway, I always enjoy training and hearing about the experiences of other successful criminal defense lawyers. My clients will benefit from the hard work of others. Fellow defense lawyers Hunter Biederman and Robert Guest are attending. Check out their blogs for comments on the conference.

Wednesday, February 6, 2008

What Are We Worth?

My friend over at the Matlock Blog shared a perturbing story about getting his attorney fees cut by a judge who failed to give him the benefit of the doubt regarding a hard fought battle to get good results for his client. Shawn lamented:
Today, I received notice that the judge had cut my bill by 75%. Unbelievable. What the judge basically told me was that the amount of time I should have spent on this case was the equivalent of an afternoon at the bar. Not that I do that kind of thing.

So I realized a couple of things today. I respect more and more those that can somehow hack a living out of what the judges see fit to pay them for work. And I'll be damned if I will be one of them.

A lot of people need representation. Actually, everyone needs good representation, but few really get it. But if judges continue to devalue the work of the defense bar, those in need will never get it.

I feel your pain Shawn. I agree many of the most interesting cases come from the well of court-appointments. I also appreciate your desire to take court-appointments because many of these unfortunate people need good lawyers, but just can't afford the fees.

Most importantly, judges need to respect the time good lawyers put into difficult cases and pay them a fair wage. How do the courts expect lawyers to invest the necessary effort into a case when they fear getting a pay cut? Many highly qualified lawyers get off court-appointment lists for that reason alone.

Shawn, I know your fees got cut. But if I were you, I'd go back a second time and let the judge know how feel and what the case really took to get resolved.

What Would Your Mother Think?

Recently, several student-athletes have run afoul of the criminal law. In December 2007 two Texas A&M football players, Yemi Babalola and Brandon Joiner were suspended indefinitely after their arrests for robbery and drug offenses. In August 2007 a former Bryan High School basketball player, Michael Young, was sentenced to life in prison for stabbing a local woman 42 times.

Nothing hurts more than seeing a promising athlete's career fade-to-black because they were not responsible enough to work hard, play fair, keep clean, and stay out of trouble. Criminal defense lawyer, Micheal Taheri, featured in an article in the "Buffalo News," offered a simplistic, yet unique method of encouraging his client athletes to stay clear of law enforcement:
Amherst attorney Michael S. Taheri looks at all these incidents, shakes his head, and offers a simple piece of advice for student-athletes everywhere.

“In any given situation, I tell them to ask themselves, ‘Would my mother be proud of me if she saw what I am doing at this moment?’ If you look at your actions from that perspective, it can keep you out of a lot of trouble.”

“I try to explain to them that the things they do in their high school years can have serious ramifications for them years down the road. When they apply for sports scholarships, many colleges ask them right up front, ‘Have you ever been convicted of a crime?’

“When they hit the job market, a lot of employers ask the same question. A DWI or drug conviction at age 17 can hurt you down the road.”

About student-athletes, Taheri also commented:
“Every year, I see more and more of them getting into trouble. Every year, I see situations where outstanding student- athletes who have the potential to be scholarship players, or even potential pros, throw it all away for drugs or alcohol.”

Student-athletes, especially the most accomplished ones, are highly visible in their schools, often popular and often faced with many temptations, including opportunities to attend parties where drugs and alcohol are available.

Top student-athletes are sometimes coddled and often put on a pedestal by American society. But society also subjects the young athletes to extreme pressures — including the pressure to succeed, and peer pressures that lead some into illegal conduct.

Although not confined to the student-athlete, there are several common criminal trouble spots facing young people, especially in a college town where temptations abound:
  • A DWI arrest can cost an athlete and his parents plenty. Fines imposed by a judge, alcohol evaluation and counseling, various state fees, increased insurance costs and legal fees can put them in a financial hole for years.
  • Obtaining alcohol for anyone younger than 21 can result in criminal prosecutions for providing alcohol to a minor, endangering the welfare of a minor, or other crimes.
  • Even consensual sexual conduct with an individual under age 17 can result in a criminal prosecution. An athlete who is 17 years or older, having sex with a 16- year-old, could potentially be prosecuted, even if the girl misrepresented her age.
  • A student who sends nude images of a minor over the Internet could be prosecuted under tough federal and State child pornography laws.
  • Harmful hazing activities — such as forcing a teammate to drink large amounts of alcohol — could constitute a crime be punishable by up to a year in prison, or longer.
Student athletes face many pressures in our culture to perform. But Helping Parents Parent is part of the job of the criminal defense lawyer. If we can help save even one, the effort is well worth it.

Friday, February 1, 2008

On Grace and Mercy

I loved this article from the Baylor University "Lariat." Baylor Law School Professor, Mark Osler, remarked how he was driven into the noble field of criminal defense work:
The discussion, led by Mark Osler, Baylor professor of law, and Hugh Kirkegaard, associate minister of McNeal Baptist Church in Ontario, Canada, incorporated faith into the world of criminal justice.

"Jesus was a criminal defendant and not a prosecutor, and that matters," Osler said. "God chose to make his son a defendant and not a prosecutor."

Focusing on the element of grace and mercy, Osler said, "Criminal law is all about managing tragedy . . . "

Although Osler began his career as a prosecutor, he eventually changed sides and became a defense attorney. He said the eighth chapter of John helped him make the decision. The chapter tells of an adulterous woman about to be stoned by an angry mob before Jesus intercedes and points out that no one is without sin.

"I started to think, maybe I'm not Jesus, maybe I'm not God," he said. "Maybe I'm the mob with a stone in my hand."
You've got to respect a guy who's not ashamed of the Gospel and willing to base a career move on the Truth. Moreover, I agree with Mark and often feel the prosecution is no more than a mob armed and ready to cast the first stone. If only more of them understood grace and mercy. They say they do - but they really don't.

Grace is getting what we don't deserve. Mercy is forbearance while withholding justice. Why don't they understand? If they only knew, each day of their lives, God withholds from them the judgment they deserve.

Election Season Blues

Primary season's in full swing in Brazos County, Texas. The most significant race effecting clients is between two Republican candidates for the County Attorney spot. The County Attorney prosecutes misdemeanor level cases like DWI, marijuana possession, family violence, suspended license cases, and the like. The contenders are Shane Phelps and Rod Anderson.

Anderson was hired by out going prosecutor, Jim Kuboviak, in 1986 and was appointed first assistant five years later. He made an unsuccessful bid for judge of county court at law in 1990.

Phelps ran for Travis County District Attorney in 1996 and 2000. He lost both times. Look here for the media coverage. Phelps moved to Brazos County in 2001 and joined the District Attorney's Office. He ran for the 272nd Judicial District Court seat in 2004 and lost.

Concerning Phelp's run for the County Attorney spot, Kuboviak said here:
. . . he doesn't believe Phelps has the same passion for the post that Anderson does.

"He [Phelps] just wants to run for something to get some power," he said. "He knew he couldn't beat Travis Bryan, his boss [Bill Turner] already had an opponent, so that was the best thing he could run for.

"If Phelps was interested in misdemeanors, he would have been involved in misdemeanor prosecution, but he hasn't. I think the citizens of Brazos County deserve to have somebody who cares."

In campaign literature on his website, Phelps makes the following promises to voters:
[To] Lead by example by trying cases. Insist on the highest standards of ethical conduct by assistant prosecutors. Train assistant prosecutors to be the most professional and best prepared lawyers in the courtroom.
All this tit-for-tat is making it hard to get work done at the courthouse. The misdemeanor prosecutors are on pins-and-needles, shouldering this scrutiny and believing Phelps will fire every last one of them if he's elected. They are tired and afraid of making mistakes making them look lenient. Their settlement recommendations have become harsher and they are less willing to work with defendants on simple things like court date resets.

Everyone's got the election season blues. If Anderson wins the primary - things should get back to normal - a good thing for my misdemeanor clients. If Phelps wins? Well, it'll be pure hell until next January.