Often Times It's All About the Energy

Here's an important way to inject YOUR energy into a trial. YOUR energy is important. YOUR energy helps persuade. Trials are often a battle of energy: YOURS v. THEIRS. You are always on the prowl for ways to inject the appropriate energy. Remember this: "You are in charge. From the beginning impress the judge you are not one to be taken lightly. "A fine line between confidence and arrogance. Watch you don't cross into arrogance, you'll lose credibility. "Look at the judge directly. Speak decisively and with authority. "Forget "if it please the court." Address the judge as "judge" and not as "your honor." If you need a moment in the courtroom, take it without asking. "If you want to show a document or piece of evidence to a witness, grab it off the prosecutor's desk and approach the witness, without asking. "If you want to ask some objectionable question on cross-examination, go ahead and ask. "Force them to deal with it. "Act like you're in charge. Doing so injects YOUR energy into the battle. Often times it's all about the energy and the side with the most energy wins."

The Acquittal of Amanda Knox

Amanda Knox was convicted of murdering her Italian roommate in 2009. She was sentenced to 26 years in prison. However, in a dramatic turn of events Amanda was acquitted by an Italian appeals court this past week and set free. The appeals court reversed the conviction based, partly, on a report that called into question DNA evidence used by prosecutors to convict her, and her then-boyfriend Raffaele Sollecito. Here are the interesting aspects of Amanda's case and Italy's criminal justice system that are very different from our own.

First, Amanda's appeal from her murder conviction was not a typical appeal we'd see here in Texas or the USA.  Amanda received a full new trial, in front of a new jury, with opportunity for a "second bite at the apple." We call that a "trial de novo." In some Texas lower courts a person can appeal and received a trial de novo.  But in most courts an appeal is based strictly on the record of the original trial. The questions are whether the jury had enough legal evidence to convict and whether there were errors occurring which might be reversible. The volume of criminal cases going through the USA systems is so high that trial de novo is an impracticable method of appeal. It would consume too much time and too many judicial resources.

The second aspect of the case is more frightening. In Italy, the government has the right to appeal an acquittal! That is, if the prosecutors lose THEY get a second bite at the apple, as well. The Knox prosecutors have vowed to appeal the acquittal. In Texas (and the USA), in contrast, once a person is acquitted any further prosecution is barred (prevented) by our concept of Double Jeopardy. That means a person cannot face conviction a second time if the government did not convince the jury to convict at the first trial. It's a Constitutional right under the 5th Amendment.

Luckily, Amanda Knox is now safely home in Seattle, Washington. Authorities say if Italy's appeal court reversed the acquittal, ordered a new trial, and Amanda was again convicted, her extradition back to Italy is highly unlikely.

You Know What I Miss Most About You?

During my visit to China a few years ago a fabulous Chinese woman, named Louise, was my interpreter. I was there for only a few days but Louise turned out to be so much more. She was my protector, my facilitator, and my friend. In a land truly foreign to me, she helped me succeed and feel safe. I loved her for helping me. In the years to come I agreed to support Louise each month with a small financial contribution to assist in her mission to spread the Gospel of Jesus Christ throughout China. Just lately I agreed to continue my financial support and expressed my desire to return to China sometime soon. Following is a quote from her email thanking me:

I pray that Father could arrange time for you to visit China again soon. You know what I miss most about you? Your tight hug! Chinese seldom hug each other, and I'd never been hugged that tight before. :-)

I hope to visit China again to see and hug Louise once more. And to those of you who I've tightly hugged like this . . . ? You know who you are! It's because I love you, too.

True Trial Lawyering

In this year's edition of Texas Super Lawyers, Attorney Robin Gibbs was interviewed about his 40 year life as a commercial litigator. Gibbs answered a question about the volume of work required to be a successful trial lawyer and how he achieved a work-life balance. Gibbs said,

"One of the happily and sadly inexorable truths about being a trial lawyer is you have to work enormous hours. It is a very interventionist lifestyle and there is just no way around it. If you're not prepared, it's going to show, and it's not going to go well for you. There's just no way I've ever seen to avoid that aspect of it; and that's a lifestyle choice because it ripples through your entire life."

His answer struck a chord with me since my experience as a criminal defense lawyer was the same. The fresh-faced, aspiring young people who cross my path are taught this lesson. I don't know if they learn, but I try my best to teach them the life of a trial lawyer is very difficult. It's often thankless. It often feels like failure. Not many people truly understand the sacrifice we make to perform at our best. And Gibbs was right. If we don't invest the hours our performance will show. The jury might not know. Our client might not know. But the judge will and so will our opponent. It's embarrassing to come up short, looking like an idiot, because we didn't prepare. 

But that won't be happening around these parts. Nope, it never will.

Depositions in Criminal Cases

Criminal defense lawyers have a duty to investigate their client's case and interview witnesses. The clients expect it and so do the courts. The Court of Criminal Appeals has repeatedly held that defense counsel "has a responsibility to seek out and interview potential witnesses . . .  and the failure to do so may be ineffective, if not incompetent . . . "

To this end, in this month's "Voice for The Defense," William Copeland writes about interviewing State's witnesses through a seldom utilized article of the Texas Code of Criminal Procedure, (art. 39.02). Copeland writes:

The provisions of the Texas Code of Criminal Procedure (Art. 39.02) for deposing witnesses are among the most helpful and least utilized tools available to a criminal defense attorney. Defense lawyers seldom attempt to depose State witnesses because of the perception that judges will summarily deny the required judicial authorization. Some judges will be resistant to applications for depositions, but others will be receptive. No judge is going to do it sua sponte—you have to ask. There is more law supporting your right to take depositions than you might realize.

Art. 39.02, TCCP, provides for deposing witnesses when “good reason exists for taking the deposition,” and requires the filing of “an affidavit stating the facts necessary to constitute a good reason for taking the witness’ deposition and an application to take the deposition.” You must file both the affidavit and the application. A sworn application alone is not enough. You must request and conduct a timely hearing. Advancing an application at trial constitutes waiver.

So criminal defense attorneys have an out when confronted with a witness who refuses to speak to them, or the defense investigator. Use the Code of Criminal Procedure to compel the uncooperative witness to talk. Furthermore, interviewing State witnesses is essential in providing effective assistance of counsel.

Honored by Texas Super Lawyers

Stephen Gustitis Lawyer in Bryan, Criminal Defense Attorney TX : Super Lawyers

New Texas Laws Take Effect Thursday

New Texas laws go into effect September 1, 2011. A package of bills proposed by the Innocence Project of Texas will go onto the books, overhauling eyewitness practices by law enforcers, ensuring that if DNA evidence exists and is available to prove a person's innocence then it will be tested and creating uniform standards regarding the collection, retention and storage of biological evidence. Cory Session - brother of Tim Cole, a Fort Worth man who died in prison for a crime he didn't commit - now serves as the policy director for the Innocence Project and supported these bills. HB 215, SB122, SB 1616.

The Romeo and Juliet law is geared to spare teens and young adults who have consensual sex from being labeled sex offenders. It prevents a young defendant from having to register as a sex offender if he or she had consensual sex with someone 15-years-old or older and there is less than a four-year age gap between the couple. SB 198

Texas minors who like sexting - or sending sexually explicit pictures or messages, generally from one cell phone to another - better watch out. Until now, prosecutors either dropped the case or had to prosecute minors under adult pornography laws. Starting Thursday, youth who sext and get caught can be charged with a misdemeanor - which can lead to jail time with repeated offenses. Not only that, but underage Texans convicted of sexting will take a state-sponsored educational class about the dangers of sexting - with one of his or her parents. However, the sexting conviction may be removed from the youth's record at the age of 18. "Here's the message to parents -- pay attention to this new technology," said state Sen. Kirk Watson, D-Austin, who carried this bill. "Pay attention to your kids. Know what it is they're doing with regard to text messages, sending images and that sort of thing, and take the time to talk to them." Senate Bill 407

And my personal favorite. Victims of domestic violence will now be able to not only cover themselves, but also their pets, under protective orders. Victims have said this is important because they often have to leave pets behind when fleeing violence and their abusers may threaten to kill or injure the pet. SB 279


Contact your local Bryan|College Station DWI defense attorney for questions about these changes in the law. 

The Weakness of Police Lineups

A recent New Jersey Supreme Court case may change the rules for how juries (and judges) treat evidence from police lineups. The Court's decision applied many years of eye-witness identification research showing that eye-witness procedures are flawed and can result in mis-identifications. The decision went on to attached consequences for police, and other law enforcement, who fail to take necessary precautions to reduce the subtle pressures applied to eye-witnesses to make an identification. Such pressures often result in mistaken identifications, which send innocent people to prison. The most important aspect of the research mandated two practices: First, that lineups are blinded and administered by someone who is not familiar with the suspect and who is not one of the primary investigators on the case; and second, photo arrays should be presented sequentially rather than as a group. Both practices, studies find, decrease the pressure on witnesses to pick someone and guard against influence.

Performance Guidelines in Criminal Cases (2)

Last week we saw that the State Bar Board of Directors adopted the "Performance Guidelines for Non-Capital Criminal Defense Representation" early in 2011. The Guidelines provided a standardized "how to" of potential courses of action and best practices for every stage of a Texas state criminal proceeding. That is, from arrest through direct appeal. The Guidelines were detailed. However, they were not designed to micromanage the competent defense of a criminal case. Rather, the Guidelines created a framework through which criminal defense attorneys could deftly exercise their professional judgment. And just as importantly, the Guidelines were not designed as disciplinary rules. They were not designed as hard-line standards of practice when evaluating ineffective assistance of counsel claims. Instead, the Guidelines were a compilation of tools for use by defense attorneys, judges, and county officials to improve our criminal justice system.

Performance Guidelines in Criminal Cases

Criminal defense lawyers face unique problems and challenges. The criminal law is complex. Criminal procedure is complex. Every case presents legal and factual problems that can only be solved through time, effort, and expense. Unlike prosecutors, court-appointed defense lawyers have no easy access to investigators, experts, or even the fact witnesses.

The State Bar Board of Directors adopted the "Performance Guidelines for Non-Capital Criminal Defense Representation" in January 2011. The Guidelines are a step-by-step guide to what lawyers should do in defending criminal cases. They remind attorneys that certain actions should be considered in every case regardless of the funding issues, or problems in local practice. Similarly, the Guidelines remind judges and county officials that lawyers have work to do and steps to take and that defenders must be paid no matter how constrained counties feel about their budgets.

The right to counsel is the most basic guarantee of our criminal justice system. Without a good lawyer, innocent citizens may be convicted of crimes they did not commit and people who need another chance may never get one. The Guidelines encourage defense lawyers to perform to a high standard of representation and to promote professionalism in the representation of persons accused of crime.

Going Straight for the Heart

My day in court went straight to the heart. The docket was short with the typical Monday morning assortment of expunctions, non-disclosures, and civil matters. If you've hung-out reading my ramblings over the years, you've learned the courthouse is a daunting place. Not many up-lifting things happen as lawyers argue over motions, plea bargains, damages, and the like. However, this morning was remarkably different. Two babies were up for adoption and an army of family accompanied the soon-to-be parents.

I speculated the couple was unable to conceive children on their own. I don't know this for sure, but the way mom and dad explained to the judge the wonder and excitement of the moment lead me to speculate as such. Some old neighbors of mine were in the courtroom taking pictures and beaming, as well. The judge got hugs and kisses. The lawyer got some, too. I was just inches away from the action and felt myself holding back a desire to jump in and get some love, too, just for being there.

It was a wonderful moment, even for a casual observer. I don't recall the last time I witnessed so many people in one place, happy, and looking toward the future with so much anticipation. I knew those young children were in the best of hands. I knew the couple's dream of a family had just come true. The judge thanked me for patiently waiting my turn as he took his place in photograph after photograph.

It was a great moment in court this morning. The moment went straight to the heart. I was glad to have been a part of it.

US Supreme Court Rules Like a Kindergartener

Last week the U.S. Supreme Court disappointed prosecutors and police when it ruled to require state experts who perform scientific analysis to also appear and testify in court about their work. In other words, the Court rejected the notion that a surrogate could show up for trial and testify about work done in their lab. But a kindergartener could have figured that one out. Persons accused of a crime have the right to cross-exam their accusers. That includes the person who performs a scientific test that incriminates them.

The case was Bullcoming v. New Mexico, No. 09-10876. It arose from the arrest of a New Mexico man on suspicion of DWI. At his trial, prosecutors presented a crime lab report showing Bullcoming's blood-alcohol levels were elevated. But prosecutors did not call the analyst who had prepared and signed the report, telling the court he was on unpaid leave for unspecified reasons. Instead, they presented a colleague who had neither observed nor reviewed the analysis.

The Supremes said that was unacceptable. Duh? Their ruling followed from Melendez-Diaz v. Massachusetts and Crawford v. Washington, which breathed new life into a person's right to confront the witnesses against them. Even Antonin Scalia and Clarence Thomas joined the majority opinion on this one. Taking a swing at the dissent's argument that such a requirement created an unreasonable burden upon the state, Scalia said: “The confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination.”

In any case, another small victory for the defense and the Bill of Rights. But even a kindergartener could have figured this one out.

Anticipating Client Needs Reaps Loyalty

I continuously encourage my staff to anticipate client needs whenever possible. Anticipating needs (and meeting needs before the client expresses them) sends the message we care about them as individuals. When clients know we care they become fiercely loyal to our firm.

Anticipating needs is achieved by simply paying attention and knowing the people we're serving. It's achieved by training each person in the firm to recognize the need for personalized service. Hiring support staff and other criminal defense lawyers based on a few key client-friendly traits such as warmth, empathy, teamwork, and optimism.

We work to align our systems to center on what clients really want from us. We endeavor to never treat anyone the same. Our great service requires custom fitting every day as we work with the special people who've trusted their future with us.

So, if you want to glue clients to your firm, learn to anticipate what they need and provide it before they ask. Thanks, Micah Solomon, for the many insightful tips into developing client loyalty.

The Death of the Bill of Rights

I'm no libertarian. (at least I don't think I am) But I'm appalled as the Bill of Rights continues to take a beating. I talked about the change in the "no-blow paradigm" months ago as it relates to DWI investigations in Bryan/College Station. I like Eric Peters' take on this tragic sequence of events. (h/t to my friend Robert Guest)

Putting Up My Legal Skills for Awhile

One of the easiest ways to alienate a client is to behave like a lawyer all the time. Sometimes criminal defense lawyers simply need to act like regular people to help their clients through difficult times. This is especially true when resolving client-service issues.

When clients point out "service lapses" by their lawyers, we must know how to accept responsibility and apologize. Most of the time the client doesn't need an "analysis of the facts." They don't need us to "allocate responsibility." Rather, they want our empathy. They need us to see their side of the situation. And most importantly, they require us to "man-up."

Regularly taking the client's side is another way to develop long-term client loyalty. Heck, it is just the right thing to do. Make this a habit and clients will forgive our small foibles. Make this a habit and clients will become immune to competitive entreaties from the firm across the street.

Another Quiet Defense Victory

Most victories in criminal defense work are very quiet. Nothing in the newspaper or on the radio. Many are worked out by agreements with prosecutors and plead-out before a judge in the, proverbial, dead-of-night. No one hears about them but the office staff. And the only recognition for a job well done is the thanks of a loving mother and the gratitude of a relieved client. That's enough . . . it needs to be enough.

We concluded a very important case last week in which my client was indicted for sexual assault of a child. The potential long-term damage to my client involved sex offender registration, conviction, a destroyed career, and limitless unintended consequences. He was a teenaged boy who meet a teenaged girl on the Internet. They got together one day and had sex. My client confessed. The problem was he was 19 years old and the girl was 15. In Texas, that is a felony offense.

The sexual assault indictment was ultimately dismissed by the prosecutor and I owe him thanks for that concession. In exchange, my client accepted a plea agreement for a misdemeanor offense of assault. No sex offender registration. No destroyed career. Two years probation and big fine was the worst of it.

It took four years to resolve, but in the end my client was pleased. His parents relieved. It was a quiet victory plead-out in the dead-of-night. No newspaper article, no radio coverage. Just a happy client and family. It was enough for this week.

It's About the First and Last Thing We Do

According to Micah Solomon, psychological studies show our clients remember the first and last thing we say during a meeting or phone call more vividly than anything else. It's the principles of primacy and recency at work during a customer service encounter. Another way of looking at it is whether we, or our support staff, sound interrupted when the client calls. That's the first thing they hear. Wouldn't it sound better if our voices communicated genuine pleasure to hear from them? At the end of a case, what is the last thing the client hears from us? A form letter advising our legal representation agreement is terminated, or genuine thanks for trusting us to provide them such a valuable service?

Criminal defenses attorneys should assure the first and last elements of our client interactions are well-engineered, since they will stick in the client's memory the longest. What our clients remember first, and last, will go far in developing the client loyalty we can be proud of.

Fast Service is King, But Delay Wins Cases

Fast service impresses clients and fosters client loyalty. Even though clients don't know what's involved in completing our work as criminal defense lawyers, modern clients expect speedier service than previous generations. However, the key tenets of criminal defense work are deny, delay, and defend. So how does the effective defense attorney square the need for speedy service with the necessity of delay in successfully defending a criminal case?

Most importantly is adjusting client expectations at the front end of the representation. The criminal client should be informed how the process of delay works in their favor. How police witnesses lose memory, how prosecutors lose interest, how mitigating facts can be developed over time to favor the client.

Adjusting client expectations, notwithstanding, is never a justification for tardiness in other areas of the representation. For instance, returning phone calls and keeping clients informed of case developments. This is where fast service is king and where improved client loyalty is developed.

In other words, take good care of your clients by responding quickly to their questions. But let them know, up front, the best results in a criminal case often come after long periods of delay.

First Step to Client Loyalty

This month's Texas Bar Journal had a great article, by Micah Solomon, on steps toward developing better client loyalty. Much of what Micah concluded were ideas most good business people develop on their own as they gain experience in the business world. This includes criminal defense lawyers, too. In any case, developing better client loyalty means, in the end, the criminal defense client is happier. That's always the goal.

Step One is to remember and acknowledge each client in a way that is personal to them. In other words, treat each client as unique. Micah believes, and I agree, that criminal defense law firms thrive once they dedicate themselves to achieving the effectiveness of a beloved bartender or hairstylist. Remembering something special about each client leads fosters this important relationship.

That's step one. With six more to go, please check in for later thoughts.

PrePaid Legal Services

Prepaid legal service is a generic term for "legal insurance" and there are several companies that offer plans. However they are variations of the company that started the concept named Pre-Paid Legal Services, Inc. located in Ada, OK. Essentially, it's insurance and your "benefit" is legal service. You pay a monthly membership fee and you purportedly have unlimited access to an attorney for your legal questions, traffic ticket representation, will preparation, and other benefits. Here's the problem with prepaid legal services.

I got a call last week from a prepaid legal service provider looking for a criminal lawyer in Bryan/College Station to represent one of their insureds. The insured was a parent whose Texas A&M Aggie got into trouble with local police for a DWI breath test case. The provider asked whether I'd be interested in taking the case for their stated maximum benefit of $1,500.00. I asked whether they offered an additional benefit if I tried the case. Nope.

I told this guy his legal insurance sucked. The only lawyers in town who might take a DWI breath test case for $1,500.00 would be either starving or unqualified. I hadn't seen any starving lawyers at the courthouse lately, so I figured the poor lady who paid the insurance premiums wasn't getting the quality benefit she assumed (I suppose) she would receive.

The moral? Beware of prepaid legal services. You might not be getting what you paid for.

The Criminal Lawyer's Flat Fee

Folks often wonder why I charge so much for my legal services. Why aren't legal fees more affordable, they wonder. You're killing me, they say. The truth is, when compared to fees charged by lawyers in civil firms with comparable experience, my fees are reasonably priced. What's more, my fees are predictable because I charge by the case. That is, I charge a flat, or fixed, fee. The flat fee is probably the best way for criminal defense lawyers to make quality legal fees affordable to the paying public. And the flat fee is simply that . . . a fixed fee as compared to an hourly fee, which is more unpredictable. So how does the flat fee make legal services more affordable to the client? Well, let's take a look at how an hourly fee might stack up against, let's say, a $4,500.00 flat fee for services in a typical DWI refusal case.

On a simple DWI an attorney will, at least, defend the administrative license revocation (ALR) hearing and appear at several court dates – let’s assume three court appearances, which in my experience is on the low end. Assume with travel time and waiting time in court, each court appearance is a half hour. For the ALR, first we must request the hearing, then request the discovery, then review the discovery, then go to a hearing. Let’s just assume it’s 2.0 hours for all of that. Initial interview? Let’s assume an hour. Watching the video with the client will be another hour for purposes of our hypothetical. In all, we have about 4 hours invested.

But what if there were a possible suppression issue needing a couple hours of research? Add two hours. That gets us to six. And if we actually litigate the motion to suppress, add another two hours. That gets us to eight. What if we must make five total court appearances? Now we are at 10 hours invested. Believe me, these time estimates are on the low end of reasonable. If any experienced criminal lawyer actually counted their hours in a case they'd be surprised how quickly the time adds up.

Let's build on the hypothetical. Let’s assume a board certified criminal lawyer with 15 or so years’ experience. She wants $350 per hour. Let’s assume also the more reasonable scenario of the time counted above, plus the modest preparation time of one hour out-of-court per one hour in-court and about four hours invested into the suppression issue. At $350 dollars per hour, that makes about 15 hours or so, (if my math is correct) or a total bill for fees of $5,250.00. This does not include the lawyer's out-of-pocket costs for online research, etc., which are typically absorbed by the lawyer and not charged out to the client.

So, when comparing the hypothetical hourly fee against the $4,500.00 flat fee, we see the flat fee is a bargain. Beyond this, in many cases the criminal lawyer will include any trial fee within their flat fee, which makes the flat fee all the more economical for clients.

Consequently, when folks ask me why I'm killing them with fees, I trust they see their advantage when paying a predictable, reasonable, and yes, affordable attorney fee to obtain the best defense against their criminal charges.

I Figure It's Time for Me To Start Playing Ball

In the 1986 sports movie classic, Hoosiers, the town's star player, Jimmy Chitwood, is sitting out the basketball season on the sidelines. During a town meeting to vote on the fate of new coach, Norman Dale, Jimmy walks into the meeting and announces he has something to say. After Jimmy is given the floor he proclaims that "I don't know if it'll make any change, but I figured it's time for me to start playing ball." It's been almost a year now since my last blog post. I don't know if it'll change anything, but I figure it's time for me to start playing ball again, too. I'm working on my next post . . . a little something about legal fees. I hope you'll visit again.