Tuesday, December 4, 2012

The Lawyer Who Knows the Facts Best


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

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

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

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

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

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

Tuesday, November 27, 2012

Lawyers Who Win Cases Should Exercise Their Right to Remain Silent

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

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

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

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

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

Monday, September 17, 2012

Bond Conditions Pose Problems For Bryan|College Station DWI

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

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

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

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

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

Monday, August 20, 2012

Technology Issues With Brazos County DWI Videos

Following is a letter sent to the Brazos County Attorney, Rod Anderson, explaining some trouble we've had in viewing DWI videos recorded on proprietary video programs used by local law enforcement. If any fellow members of the Bryan|College Station defense bar have similar issues, please contact Rod Anderson to make sure he's aware of the problem. 
Rod:  
There have been some technology issues around town regarding the Insight AV police videos which the College Station Police Department and Brazos County Sheriff's Office use to record DWI stops. I've heard several other defense lawyers articulate problems in viewing these videos on both PCs and Macs. I also have problems viewing these videos and, in fact, hired a computer expert to determine if it was something on my end. The computer expert explained it was the proprietary nature of the software and the "unavailability" of Internet downloadable code-ex to make the program run properly on someone's computer. 
All other videos can be played on programs like Windows Media Player, Quicktime, etc. These programs have available code-ex on the Internet which can be downloaded to make the players work. Code-ex is not readily available for the Insight AV player. Although the player is on Brazos County Secure Share and I've downloaded it, I still cannot get the Insight videos to play reliably. Again, the computer expert says it's a problem with the proprietary code-ex needed. 
Anyway, I wanted to make you aware of this problem. The Brazos County defense bar is, of course, thankful we can get the videos from your office. Also, Secure Share is a great vehicle through which to obtain them. But the "techno-frustrations" are problematic. 
I'm also aware the videos are available to view in the County Attorney's office, but this solution is impractical since most (if not all) of our detailed video review is done after hours and on weekends where regular office distractions can be eliminated, especially in preparation for trial. 
Thanks for your ear, Rod. Please let me know what we can do.

Steve Gustitis

Friday, August 17, 2012

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

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



Monday, August 13, 2012

A Role Model for Defending the Accused

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


Saturday, August 11, 2012

Pre-Trial Diversion Could Work In Brazos County

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

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

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

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

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

Monday, August 6, 2012

Defending Bryan|College Station Driver's License Suspension Hearings (ALR)

Last Wednesday I posted about the ALR (Administrative License Revocation) process while waiting to defend several clients in Bryan|College Station. It was a good day in ALR court.  Several College Station police officers were subpoenaed to testify and helpful information was obtained from each. 

Important benefits of the ALR process are the liberal discovery rules. In other words, prior to the ALR hearing the officer's written reports can be obtained and used to help plan the strategy for defending the ALR hearing (and any subsequent Bryan|College Station DWI trial). During the ALR hearing the officer can be tied down to their report. Questions about my client's driving can narrow the reasonable suspicion cited by the officer as legal authority to stop. Further, questions can be used to erode the officer's probable cause for arresting my client and later used to impeach their DWI trial testimony.

Additionally, the ALR process offers the aggressive criminal defense lawyer an opportunity to cross-examine and depose the most important witness in a DWI prosecution . . . the arresting police officer. ALR hearings are also important since rarely is the officer actually prepared to testify by the Department of Public Safety prosecuting attorney. Consequently, the officer is often caught "flat-footed" and unprepared. Following the hearing, a certified transcript of the hearing can be obtained and used to cross-examine the officer during the actual DWI trial. 

There are many reasons to conduct an aggressive ALR defense in Bryan|College Station. First, we want to do everything possible to protect our client's driver's license. Second, we want important written discovery that will help us plan our upcoming DWI defense. And third, getting the arresting officer tied-down to their report, while being unprepared to testify, can be the difference between a dismissal (or a charge reduction) and a trial. 

Wednesday, August 1, 2012

Bryan|College Station Driver's License Suspensions

ALR court in Bryan|College Station is often a waiting game. ALR is short for Administrative License Revocation and clients get embroiled in this legal process when they are arrested for driving while intoxicated, or driving under the influence of alcohol as a minor. 

ALR court is where we fight to protect a client's driver's license from being suspended. We provide this important service as part of our DWI/DUI defense work in Bryan|College Station and surrounding areas. Please note that strict time limits apply to the ALR process. From the time a person is given notice of the State's intent to suspend their license, they have 15 calendar days to request a hearing. If the hearing is not requested timely, the person's  license will be suspended automatically on the 40th day after receiving notice. 

Call our Brazos County Criminal Defense Firm immediately if you've gotten in trouble for DWI or DUI. We have years of experience helping good people just like you. 

Monday, July 30, 2012

New Tech Makes For Better Client Service

I enjoy law office management as much as I enjoy practicing criminal defense law in Bryan|College Station. A smooth running and client-centered office depends on the smart use of  technology, as well as the intelligent use of human resources at our disposal. I have a great and loyal staff already. But it was time to take the office tech to a new level. Those of you who know me understand I love Apple computers. I have five of them. I also own an iPhone and iPad. I give Macs away as gifts. Even my beautiful wife is married to her iPad and uses it as her principle means of accessing the Internet. 




This weekend I finished configuring my brand new iMac. It's a beautiful 21.5 inch model with a hybrid hard drive system consisting of a solid state drive, which is home to my operating system and applications, plus a 1TB spinner for my large data files like photos,  videos, and music. The attached 20 inch Cinema Display gives me abundant desktop real estate from which to work on document preparation, view my daily calendar, and answer my emails. 


Why drive a Volkswagen Beetle when you can have a BMW?  That's why I love my new Mac hardware set up. It's blazing fast. It looks good. I "feel" more productive. In fact, I am more productive. I can blaze through my emails (to the delight of those who wait on me to answer).  I am better organized which gives me more time and energy to respond to client needs. In short, it's just more fun to work at the office and provide good legal services to our clients. 

Thursday, July 26, 2012

Rule #4: "Eat Elephants One Bite At a Time"

Most of us have heard this one. The trouble is we still don't believe it. Sometimes the tasks at hand seem so huge and unsurmountable, we never hunker down and take the first bite.

This is one rule that applies broadly to both criminal defense practice and life in general. Big tasks and hard-to-reach goals often seem hard to accomplish (or even start), but by taking things one small portion at a time anything can be done. Just ask the elephant who got eaten one bite at a time. 

As a criminal defense attorney in College Station my cases often start with mountains of records and evidence to sort through. To look at the table full of binders and think I must read and understand all them before trial is often intimidating. But I've learned over years of experience even the biggest "elephants" can be consumed with perseverance. The trick is to tackle each job step by step and not let the size of the project paralyze my efforts. Patience is the corrollary to Rule #4.

I know no elephant-sized piece of work, obstacle, or goal is too big to be completed, overcome, or accomplished. But this realization comes only by going slow and never biting off more than you can chew. It's important to eat elephants one bite at a time because if you don't, you may never get through the first piece.

Sunday, July 15, 2012

Having Finished a Capital Murder Trial

It's been about two weeks since we finished defending a capital murder case here in Bryan/College Station. My talented co-counsel and I prepared for over a year to defend our client who was charged with quite a heinous murder and aggravated assault. Our defense was unique since we had solid evidence our client was mentally retarded and, therefore, ineligible for the death penalty under Texas and Federal law. 


The jury did not find in our favor, however. But everyone on the defense team deserved much praise and thanks for a job very well done. We were under tremendous pressure and it seemed unending. Everyday there were a 100 moving parts to manage and control. Documents to review, expert witnesses to prepare, subpoenas to serve, client family to tend to . . . in addition to keeping the law practice above water until I could return. My family paid a price, as well. I left before they got up each morning and arrived home after each was already in bed.  It was a lonely time. 


I watched as some of the best cross-examinations I'd ever seen were executed with precision. Thank you, Lane. I knew I could lean on you when the crap hit the fan. That's why I picked you. The capital murder jury selection process was a battle in-and-of itself, too. Days filled with victory and defeat, both at the same time. Every hour a new battle to fight, another juror to save, another juror to get for cause. 


I don't know if I'll ever do another of these. The experience was unequaled. The stakes were at their highest. But the personal cost equally as great. 

Thursday, July 12, 2012

Rule #12: "When the verdict's in, pack up your gear and go home"

You can be the best criminal defense attorney in the world . . . work harder than anyone else . . . out-prepare your opponent . . . show up to court every day ready to do battle. Unfortunately, although a recipe for success this work does not guarantee success. Often you're going home not getting the results you'd hoped for. 


After my closing statement is complete and I've listened closely for objectionable statements in the prosecutor's final argument, the case is finally submitted to the jury. The pressure is off. I've done my job. The case is now in the hands of another. However, the moment a verdict comes back worse than expected (or hoped for) you feel all your energy for the last weeks and months might have been a waste - you wonder where you went wrong . . . maybe kicking yourself for not doing things differently. But this is not the end. This is an unavoidable moment in life for every criminal trial lawyer. This is the time to pack up your gear, go home, and not look back.

Despite the great effort invested into our case preparation, often the results are simply unsatisfying. We are warriors and warriors like to win. Maybe we thought the client had a good chance for an acquittal. Maybe we thought we should have beaten the plea bargain. These instances eventually become the moments we reflect on - the moments we make decisions to change for the better. But only after we've put the case behind us and we are looking forward.


The best lawyers on the planet lose cases.  It's inevitable and, maybe, even desirable at times. Investing everything you have into a case and then losing has a humbling affect. Importantly, humble lawyers win cases. Humble lawyers maintain credibility. And we already know credibility is the key to everything. But humility only comes after reflection. And reflection only comes after we pack up our gear and go home. 

Wednesday, April 4, 2012

Choosing the Right Criminal Defense Lawyer

Choosing the right criminal defense lawyer involves several important sources of information about the attorney. First, how much experience does the attorney possess in the field for which you need their services? Second, what is the lawyer's reputation in the community? Attorneys earn their good reputations by providing excellent legal representation over many years.  Finally, how does the lawyer make you feel? In other words, meet with the criminal lawyer face-to-face before making your final decision. You'll be glad you invested time sitting eye-ball to eye-ball before righting a check for legal services.

Friday, March 16, 2012

Rule #14: "Never Ask Why on Cross Examination"

There are exceptions to every rule. But for the young criminal defense lawyer (one with less than 10 years experience) there's no exception to this one. Never ask why on cross examination! The witness on cross examination is typically adverse to your position in the case. Asking "why" gives them open season to gut you in front of the jury and a bunch of other people you don't know. Very embarrassing. 

The object of a good cross is to compel the witness to admit things they must admit . . . information damaging to your adversary or helpful to you. Each time you ask an open-ended question on cross the door is open for the witness to stick a dagger in your throat. 

So it's important that criminal defense attorneys ask only leading questions on cross examination . . . effectively testifying themselves with the witness acknowledging with the obligatory "yes" answer. Instead of asking "Where were you?" we'd ask "You were at your apartment that night." This leaves just enough space for the witness to respond with "yes" but no room for them to give any explanation.

When cross examining a witness you want to get out the important facts that help your case, or hurts their's, and nothing else. When asking "why," you're giving them a chance to explain. Oops! Unless you don't care what the answer is, never ask why! Leave the explanation for your closing argument where the witness has no opportunity stick that dagger in you. 

Friday, March 9, 2012

Rule #33: "Credibility is Everything"

You can't get anything done in life if folks don't believe what you say. Every life relationship is built on trust, including the relationship a trial lawyer has with their jury. Working to convince twelve people to believe you . . . the criminal defense lawyer . . . is a tough, uphill battle. When a prosecutor declares they represent the State, they immediately have credibility with the jury by default. They can lose this credibility, but they usually don't need to work hard to get it. Not so with the defense lawyer. We must earn the trust of the jury. When we stand up to speak people are always skeptical of us and what we have to say.

Moreover, if we want clients to invest in our skills as a criminal attorney, we must prove we are credible and worthy of their trust. When working with prosecutors and witnesses, they must trust us to tell the truth and keep our word. Finally, when in trial the jury must recognize our credibility if they are going to be open minded about our theory of the case. From the moment we walk in, we must appeal to people's logic and reason as well as to their emotion. But first we must convince them we are credible.

In law - as well as in life - credibility is everything. Before establishing any kind of relationship - be that with a jury, a coworker, or a friend - you must first establish trust. In order to be trusted you must be credible. If a criminal defense lawyer doesn't have credibility he has no foundation upon which to build trust. Credibility, therefore, is everything.

Monday, February 27, 2012

Rule #17: "Beware of the Rocking Chair"

I learned this lesson the hard way . . . one learned during my third year in law school at a mock trial competition. It wasn't a real case but it was real enough for me and real enough that the lesson learned stayed with me all these years. The other name for this Rule is "When you are finished with an exhibit, put it away." It avoids much embarrassment especially if you hate losing as much as I do. "Beware of the Rocking Chair." 

My partner and I were on the defense. Our mock trial client was charged with murder and we believed we had a clever defense "angle" on the case. Our theory was our client could not have shot the victim as alleged because he'd been shot in a rocking chair and the bullet trajectory was inconsistent with the prosecution's key witness. During our closing argument we used a rocking chair as demonstrative evidence. 

My mistake? Not putting it away after I was finished. I left the chair in the middle of the courtroom as the prosecutor stood up to give his rebuttal. Needless to say, my opponent used the chair to shred my defense in the most embarrassing way.  Even my wife cringed as the rocking chair was shoved down my figurative throat. Had I simply put the exhibit away I think I would have avoided the shock. That was the lesson. 

In my work as a criminal defense attorney I often use various exhibits and presentations to illustrate evidence to the jury. I will have a witness introduce the exhibit and then describe how the information presented is relevant to our case. After I've gotten what I want, I put the exhibit away. Leaving something out not only looks tacky and unorganized, it gives my opponent (and the jury) a chance to deconstruct my argument and use my exhibit against me. 

So that's Rule #17. When you're finished with it, put the darn thing away. Don't let the proverbial Rocking Chair get between you and a victory.

Monday, February 20, 2012

Rule #37: "Learn to Think BIG"

Anything worth doing is worth doing well. In fact, in everything we do there's potential to make it not just better, but BIG. In this way every endeavor can be made into something great. Folks in every profession make the mistake of being content with overwhelming mediocrity. 


I train my people to think BIG. If something isn't going well there's a greater potential to be reached with a little extra effort. Even when things are looking good the most exceptional people will see where improvements can be made. That's the mindset I want my people to possess.

Notice the Rule doesn't teach one to necessarily think big, but to LEARN to think BIG. Thinking BIG is a process, a mindset, a lifestyle. But it doesn't come naturally. It takes work because there is risk in thinking BIG. Risk of failure. And yes, the risk of being successful, which can be scarier still. In running a criminal defense law firm, like any business, learning to think BIG brings rewards. Better service to the client, more rewarding financial gain, and a happier team. 



If it's worth doing, it's worth doing BIG. Learn to mine your potential. Learn to think BIG.

Wednesday, February 15, 2012

Rule #3: "Never Lie to Anyone . . . Ever"

Contrary to public opinion defense lawyers are not compulsive liars (i.e., used car salesmen!) who will say anything to win a case. The bad ones might be, but not the good ones. While being a good criminal attorney often involves interpreting evidence differently than most people would initially, my work does not require . . . nor does it allow . . . me to lie under any circumstance. Everything I do as a defense lawyer requires integrity and requires I maintain my credibility with others. (see Rule #33: "Credibility is Everything")  Whether that be with the jury, judge, prosecutors, or the public. Trust is the lawyer's stock and trade and that means being honest with everyone, all the time. 

Often my work requires me to separate fact from speculation. It requires me to be a zealous advocate for the real people entrusted to my care. Sometimes I need to suppress evidence and argue that seemingly "incriminating" evidence is not incriminating at all. But lying is not part of that job description. Rather, out of respect for the law, the court, the prosecutor, and my client . . . my integrity and my honesty . . . are everything. 

So the Rule is never lie, to anyone, ever. We might need to parse our words as defense lawyers. But make sure those parsed words are still the truth. The lives of others depend upon it. 

Saturday, February 4, 2012

Rule #24: "Know the Facts Better Than Your Opponent"

My old boss taught me this. Every criminal case in existence was driven by the facts. Sometimes by the law, but most often by the facts. Usually, the side with the best facts has the momentum and most favorable position. But not always. Sometimes the side who knows the facts better than their opponent has the upper hand. Therefore, Rule #24.

Often there's a plethora of information flying around and it's easy for the defense lawyer to lose track of seemingly unimportant details and get bogged down. That's why I also favor Rule #5: (Always visit the Scene), Rule #6: (Read Everything in the File) and Rule #28: (Out-work Your Opponent). It's a mistake not to know the facts and it's darn hard work to make sure you've got a complete understanding of each facet of the case. But again, even if the facts aren't on your side, if you know them better than the other guy, you might have the advantage.

Finally, juries like it when you have a better grasp of the facts. That helps you build credibility with them. See Rule #33: (Credibility is Everything). One of the best ways to persuade is to demonstrate to the jury you know more about the case than your opponent. They are more likely to trust you. And this trust is often the tipping point in the deliberation room.

Saturday, January 28, 2012

Rule #22: "Wear a Suit"

One of the first things we notice about someone is their style of dress. We make judgements about their personality, their state of mind, their confidence. And perceptions aren't just important, they may be everything. Seems simple enough.


I enjoy wearing suits. I believe my clients like it when they see me in one. My wife tells me I'm handsome in a suit. Prospective clients expect to see their lawyer-to-be in one. I've got a closet full of them. So for goodness sake . . . wear a suit.


Each time I meet with a client (except maybe weekends) or tussle with a prosecutor I like wearing a suit. When a client first meets me I want to make clear I'm a pro. In my business pros wear a suit.  Nobody was ever impressed with a flip-flopper. Perception can be the difference between signing a new client or losing a sale.


So the rule is wear a suit. You just never know when perception will be everything. Appearances matter and first impressions last, especially in the life and work of a criminal defense attorney.

Sunday, January 22, 2012

Rule #13: "Never Give Up, Never Surrender"

I didn't write this Rule for me, I wrote it for my friend. "Never Give Up, Never Surrender." I lived this Rule so she could see it in action. I wanted to show her the value of pushing forward . . . even in the face of certain defeat. I wanted her to learn about our professional responsiblity to fight until the end, until we had no more opportuntiy to fight, until we had no more energy to fight. She was the best I ever had. The brightest, the fastest, the one who made sure I was never attacked from behind. The one who made sure I did my best.

I wrote this Rule because I knew where she was going. She didn't know yet even though she thought she did. But I knew she was headed straight for hell-on-earth and I was trying to teach her how to survive there . . . to give her something to grasp when life seemed impossible to live. 

When she reads this she'll know it's about her. And she now understands about hell-on-earth. About fighting battles and wondering why she doesn't win. About doing her best, but coming up short. I know she's also learning we must often retreat and regroup . . . before we can attack again. That retreating is not giving up, it is not surrender. Sometimes we must retreat to find our energy and our center again. Our reason for pushing forward in the face of uncertainty, and even defeat. 

I won't allow her to quit because I understand her dream. I understand it because it was my dream, too. Because we all need someone pushing us from behind and pulling us from the front to get to our dream. There will be no giving up! There will be no surrender!

Tuesday, January 17, 2012

Rule #11: "Deny, Delay, & Defend"

Ok, this one isn't original. But it's still a good one and worthy of my list. The 3 Ds of criminal defense work; Deny, Delay, & Defend.

The first thing the police want is a confession.  Let's face it . . . a good confession makes their job so much easier. My advice to folks . . . the targets of criminal investigations . . . is to keep your mouths shut. Speak to no one on the planet, except your criminal lawyer. And for goodness sake, if you're going to say anything, at least DENY it. Since once you admit, you are probably toast.

I love DELAY. It gives me time to work. It mucks-up the system and judges loath it. It helps my case get old, mildewed, and smelly.  We don't want speedy trials.  Speedy trials are bad for the accused. Provided my client is keeping out of trouble, DELAY can do wonderful things to a criminal case. Witnesses forget, get in trouble themselves, move off. Prosecutors get sick of my case . . . and me. I love it. It works. As long as they haven't convicted my client, we've got hope. DELAY whenever you can.

Finally, DEFEND. Defend only when you must. Frankly, defending a criminal case often doesn't work out well for the accused. It's a fact of life. Juries are unpredicable, they sometimes want blood. Judges are mean. Prosecutors, well, prosecutors need to get a life. In any case, DEFEND if you must, but only as a last resort. It's tough out there, you know.


Bryan/College Station criminal appeal lawyer, Steve Gustitis, has practiced criminal law exclusively since 1990. First as an assistant district attorney with Brazos County and then in private defense practice. He is Texas Board Certified in criminal law and committed to the aggressive and ethical defense of citizens accused of crime.

Sunday, January 15, 2012

The Victim of an Illegal Police Detention

I enjoy walking in my neighborhood late at night.  It's quiet and dark.  The constellations are beautiful and I often see shooting stars streak across the night sky.  Now and then I'll see a man-made satellite move like a freight train low on the horizon. I'm regularly startled by white-tailed deer snorting deep in the woods. I occasionally see their dark silhouettes cross my path. Coyotes yip and howl and get all the neighborhood dogs in an uproar. 

But last night on my walk I was the victim of an illegal police detention. You see, my late night walks in the neighborhood had created quite a stir. Little did I know the local sheriff's department had a BOLO out on me. A tall suspicious man, dressed in black gloves, dark trousers, camouflaged coat, and dark cap had been regularly seen in the neighborhood . . . late at night. Sometimes he was seen running. Always avoiding oncoming traffic. But you see, my neighbors just didn't get out much. That was my favorite fleece jacket, my most comfortable black jeans, the warmest wool ski cap I've ever owned, and the best pair of cycling gloves on the market. 

So you know I was astonished at about 11:00pm when a sheriff's deputy came screaming down Indian Lakes Blvd. with his emergerncy lights rolling and his spotlight shining directly in my eyes. I was almost home . . . no more than 1/2 a mile from my house. "Sir, can you come with me please?"  Ha!  I knew it was a bad stop. The officer had no "reasonable suspicion" I was involved in any criminal activity. Just a bunch of noisy neighbors who didn't get out much wondering why some strange guy in camouflage and gloves was out walking in the dark each night.

I could have kept walking but I decided to submit to the officer's authority. Even though I knew this was a bad stop, I also knew I'd get patted down if I refused to cooperate. I also didn't want the Benchmade 581 Barrage assisted-opening folder I had in my pocket mistaken for a switchblade. I would have beaten that rap, but not the ride downtown. So I stopped and told the officer who I was.

You see, I know most of the cops in town. When I identified myself the officer immediately asked if I was the "lawyer Gustitis."  "Yes I am," I said. Out on my evening walk, enjoying the stars and the yipping coyotes. He apologized for not recognizing me, seeing how my wool cap was pulled down over my ears and forehead. He explained how the neighbors had been calling in a suspicious person report for weeks, but they'd never been able to catch the guy. I laughed and said, "Yea, that's me." No home invader, no burglar, just little-old-me trying to get some excercise and enjoy the night air.  But I still didn't tell him about my Benchmade, heck, he might have taken it for his own.

The kids got a kick of the story. I told them tonight I'm wearing my full-faced leather ski mask. That should get the neighbors in a stir.  You see, they just don't get out much.  If they did, they'd know it was little-old me out for a bit of excercise. 

Thursday, January 12, 2012

Rule #29: "Think First, Talk Second"

I learned this one the hard way . . . clients hanging on my every word; their future at stake.  Jurors, as well . . . watching to discern my true intentions. Am I a liar selling shoes or a truth teller with a righteous cause? Opposing counsel listens intently for signs of weakness, an admission, or a mistake which might give them the advantage. 


Mostly, I'm talking on the run, thinking on my feet, responding to the most recent volley from an opponent. Which words do I choose? Which tone of voice . . . quick words or slow?  How do I utter them with sincerity, compassion, indignation? What is needed at that precise moment to achieve my purpose? Well, I've got to think about it first. 


Law school teaches you none of this. Only the trenches helped train me to think about each word and its effect in the moment just before release. Only the trenches taught me to practice my delivery in my mind . . . just before the hearer hears. The hard way, my mistakes, taught me the way.


I train my people to think like this. It's difficult, it's unnatural, they don't like to do it. But it's necessary. I train my people to think about their words before they make a sound. It can be the difference between making a sale, or losing a client. The difference between maintaining credibility or losing it, or promising too much.


It's necessary . . . it's Gustitis' Rule #29. Think before you speak. You'll never regret it. 

Wednesday, January 11, 2012

Gustitis' Rules

Throughout the fictional CBS television series NCIS, Leroy Jethro Gibbs periodically reveals his numbered rules to live by . . . his Code. (Gibbs' Rules) Rule #1 is "Never screw over your partner." Rule #2 is "Always wear gloves at a crime scene." Rule #15 is "Always work as a team." There are over fifty rules in all. Rules which he learned over the course of his life as a Marine Corps sniper and NCIS Special Agent.  

In my work as a criminal defense attorney I - like Gibbs - have developed a set of rules . . . my Code. Rule #1 is "Always keep your promises." Rule #6 is "Read everything in the file." Rule #22 is "Wear a suit."  I've got over 40 rules to live by.  My rules have come from my life in the legal profession, but extend further into everyday life and character development, as well. In the coming weeks I'll be posting Gustitis' Rules, my Code, here on my blog. Stay tuned.