Monday, July 30, 2007

Seeking Minority Jurors

An article by the Associated Press last week highlighted the problem of jurors failing to report for jury duty and the efforts some jurisdictions across the country are using to get more people to report. Although jury duty is a cornerstone of democracy and civic responsibility, many citizens would do almost anything to avoid it.

The AP article claimed fewer than half of all Americans summoned report for jury duty, in part, because of apathy and busy lifestyles. Interestingly, the article failed to mention the racial make-up of those not reporting. In my 17 year experience picking juries in Brazos County, Texas the most underrepresented members in the jury pool have been minority citizens. In fact, the minority citizens are those the criminal defense lawyer needs most to show up and participate in the jury process. It is the minority component of our community that is better equipped to give clients a fair trial in many cases.

Here's the problem. Most of the people who show for jury duty are civic minded, white middle class, law and order type citizens. As a general rule these people have little direct interaction with law enforcement and tend to believe the police. They tend to believe the government would never prosecute someone unless they knew they were guilty. Moreover, these law and order types tend to be less sympathetic to the accused at the punishment phase of trial. Conversely, minority citizens often harbor a very healthy distrust of the government and the police. A minority juror is less likely to believe a police officer's testimony than their white middle class counterpart.

The real challenge is to get more minority citizens to report for jury duty. Those citizens who are less well-to-do and out of the mainstream. Those who come from the wrong side of the tracks and who've had experience with the police making arrests in their own neighborhoods. These are the people with a healthy, and necessary, skepticism of law enforcement. These are the people who can better empathize with many of the criminally accused and give them a fair trial.

I was impressed with the methods judges were using in other states to get people to report for duty. However, I am skeptical elected judges in Texas would take the same aggressive approach. I'm afraid they may be more interested in keeping their voting constituency happy than they are about ensuring the accused a fair and impartial trial of their peers.

Consequently, when we come into contact with minority community leaders we must urge them to encourage their brethren to report for jury duty. Only then might we get a true cross-section of our community making decisions about the rest of our client's lives. Hopefully, then we'll be on the road to getting our clients a fair shake.

Friday, July 27, 2007

College Station DWI

Robert Guest (I Was The State) recently posted about his DWI victory. His principle argument was that DWI was an opinion crime and innocent people are convicted of DWI simply because a police officer opined they were intoxicated. In a effort to educate local folks in the Bryan/College Station area about DWI, the following are my thoughts.

The best way to avoid a DWI arrest is to not drink and drive. Stay at home to drink - designate a driver - or surrender your keys to someone who can drive you home - these are the safest ways to avoid a DWI. If you must consume and alcohol and drive, know this.

In College Station, Texas, by the time an officer asks you to step from your car for sobriety testing, the officer may have already decided to take you to jail for DWI. The most common mistakes a person makes are submitting to a variety of coordination tests (field sobriety tests), answering a variety of incriminating questions, and submitting to a breath or blood test. The field sobriety tests are easily failed - even by a sober person. You have the right to refuse these tests, although that refusal may later be used as evidence of your guilt. The best thing to do is say as little as possible, do as little as possible, and be as polite as possible. Remember, these police encounters are likely video taped and audio recorded. The breath testing devices used by the College Station police in DWI investigations can be inherently inaccurate. They operate under the flawed assumption all people process alcohol in their system at the same rate. Few safeguards are taken to insure the breath sample is not contaminated by residual alcohol. A breath alcohol reading of .08, or above, in Texas is all that may be needed to convict a person of drunk driving. Anyone who has consumed more than a few drinks must seriously consider whether to submit to chemical testing. Know you have the right to refuse testing - but there are also consequences for refusing a chemical test.

ALR, or Administrative License Revocation, is an administrative process in Texas used to suspend the driver’s license of a person who is arrested for DWI. A person arrested for DWI who fails, or refuses, a chemical test after being properly requested to do so by the arresting officer is subject to an ALR suspension. Again, I Was the State has a good post regarding ALR here.

If you fail or refuse a chemical test, your license is not suspended immediately. Rather, the police will take your license and give you a temporary driving permit labeled “Notice of Suspension - Temporary Driving Permit.” If you do not request a hearing to fight the license suspension within 15 days of the arrest - your license will be suspended automatically on the 41st day following your arrest. If you request a hearing your license will not be suspended until after you have fought for it before an administrative judge.

Parents should also take a realistic approach when imposing rules on their teen drivers. First, remember it is a crime for a person under 21 to consume ANY amount of alcohol and then drive a motor vehicle. Most parents don’t want their children out drinking, but kids often make mistakes. Parents should maintain an open dialog with their children regarding drinking and driving. Parents should understand a late night call for a ride from their intoxicated teen is highly preferred over that same call from a jail cell.

Hopefully these thoughts will assist folks in Bryan/College Station to make good decisions about avoiding a DWI. Again, my best advise is just don't drink and drive. Don't hesitate to contact the College Station DWI Lawyer if you have any additional questions.

Wednesday, July 25, 2007

Eyewitness Misidentification (Part II)

The press accounts involving convicted cop killer, Troy Anthony Davis, have been focusing on the fallibility of eyewitness identification. In Davis' case there was no physical evidence and the entire case was built upon eyewitnesses to establish the killer's identity. However, seven of nine eyewitnesses who helped implicate Davis for the murder have since recanted their testimony. Grits for Breakfast has also noted the interest in eyewitness identification problems here.

Please review the original post in this series on eyewitness identification. There we stressed
the importance of understanding the dynamics involved in these cases by the criminal defense lawyer. Since I promised to explore the nature of eyewitness testimony, its weaknesses, and how an experienced lawyer can use improper police procedures and expert testimony to discredit the testimony of an eyewitness, let's get to it.

There are many sources of error in eyewitness identification. Any identification results from a complex interaction of witness internal and external memory factors. The internal factors relate to the witness' ability to perceive and accurately remember an event. External factors are outside influences in the identification process itself that lead the witness to select a particular person as the perpetrator of a crime. This week we will explore the internal memory factors that affect eyewitness identification.

The human memory generally consists of 3 phases. First, there is the acquisition phase where the witness perceives the event. Second, there is the retention phase where time elapses before the witness must recall the event. Finally, there is the retrieval phase which occurs when the witness attempts to recall the stored event. Elizabeth F. Loftus, Eyewitness Testimony: Civil and Criminal 10 (3d ed. 1997)

During acquisition there are factors that may influence the witness' perception like their age, gender, influence of drugs or alcohol, witness expectations, stress, fear, weapons focus, duration of the event, and differences in race. See Gary L. Wells & Elizabeth F. Loftus, Eyewitness Memory for People and Events, in Comprehensive Handbook of Psychology 157 (A. Goldstein, ed., 2003)

During the retention phase the memory may be altered through the loss of information (forgetting) or the introduction of new information through media sources, conversations with other witnesses, and leading questions by the police.

Finally, at the retrieval phase the types of questions used to elicit the memory may further impact the witness' recollection. For example, questions which suggest the answer like: "Was the robber tall?" rather than "What height was the robber."

The next installment in this series will focus upon the external memory factors which may influence an eye witness identification. I'll try to get that posted soon.

Monday, July 23, 2007

Habeas Corpus Training

For those criminal defense lawyers interested in learning more about litigating the Writ of Habeas Corpus in capital cases, the Habeas Assistance and Training Counsel (HAT) and the Administrative Office of the United States Courts (AO) has announced the Twelfth Annual National Federal Habeas Corpus Seminar. The seminar will be held on August 16-19, 2007. See more on the Capital Defense Weekly post. There will be no tuition for this program and materials will be provided to participants free of charge. Continuing Legal Education (CLE) accreditation for this program will be sought in all applicable jurisdictions.

Handling the Media - Be Available

With the Tour de France into its 3rd and final week, criminal defense lawyers can learn something from the top riders who know how to work with the press. After 5-6 hours in the saddle, with the likes of Michael Rasmussen (yellow jersey), Alberto Contador (white jersey), and Mauricio Soler ripping your legs off in the mountains, it would be easy to ignore the press when they are looking for interviews and insight into the dynamic of the peloton that day. But riders like Levi Leipheimer and Chris Horner are making friends by being available and being polite when dealing with media reporters.

The defense lawyer should always strive to develop good working relationships with reporters in the media. The defense lawyer should treat reporters the way they would want to be treated and develop empathy for the reporter and the pressures under which they work. Reporters are constantly dealing with deadlines and resent people they believe are wasting their time.

The effective defender dealing with the media always thanks the reporter for covering their case and remains available for comment. The lawyer should be reachable and always return a reporter's call or e-mail promptly. The defense lawyer need always keep their word and get back to a reporter if they promise to do so.

Finally, the lawyer should be generous with their time. Spending the time necessary to help the reporter truly understand the case and legal issues pays great dividends. Reporters are naturally curious and are appreciative of lawyers who take a personal interest in them getting the story right. Helping the reporter understand the legal issues and they will often find a way to return the favor.

Over time, the top professional riders in the peloton who work generously with the media are rewarded with time in the spotlight. Quality time in front of the camera can only enhance one's professional image and popularity with fans. Texas criminal defense lawyers can also be rewarded when they are available for the press. Often a client's case is perceived more favorably in the media when the lawyer takes time to know the facts, get prepared, and remain available for comment with the press.

Friday, July 20, 2007


While I was lamenting about my garbage man on Wednesday, GritsForBreakfast was commenting about the same burr that was under my saddle. Check it out here where Grits tells us the Texas Board of Pardons and Parole has identified 2,324 separate acts which the state Legislature has declared felonies! Imagine it, 2,324 ways to commit a felony in Texas.

However, I disagree with Grits' conclusion the Ten Commandments only proscribe 10 forbidden acts. Maybe he can call me and we'll talk about that.

Lawyers Policing Lawyers

I couldn't pass up the opportunity to comment about Peter Cherbi's post on his "A Diary of Injustice in Scotland" blog. Here Peter laments about a Scottish court case in which a lawyer (presumably a criminal defense lawyer) had admitted to giving his client a false alibi. A quote from the press account of the case . . .
A LAWYER gave a "serious criminal" a false alibi for his trial on abduction and attempted extortion charges, a court heard yesterday.
The solicitor, Shahid Pervez, 39, told police that the man, who for legal reasons cannot be named, was in his office discussing an insurance claim when the crime was alleged to have been committed.
Not a good way to build the persuasive case, I must say. The post piqued my interest after having recently commented on the importance of defense lawyer credibility here. Peter went on to say:
Of course, lawyers regularly give alibis to other lawyers when it involves a client complaint, on everything from defrauding banks & faking up files, to even defrauding clients & the inland revenue. It's just this time, the lawyer has admitted in court, giving an alibi to a client. Usually, there isn't even an eyebrow raised to the former, but the latter it seems is a taboo in the legal profession, not to mention against the law in both cases of course . . . The Council of the Law Society of Scotland Act 2003 was yet another piece of legal profession sponsored legislation which was claimed would clean up the regulatory world of lawyer covering up for lawyer .. although as we all know, has had no impact on the ever rising levels of corruption in the Scottish legal profession, only proving yet again the failure of allowing lawyers to regulate themselves.
Peter is on a crusade to root out what he sees as corruption within the legal profession in Scotland. Apparently, the profession there regulates itself internally, but doesn't work that well from Peter's point of view. Their system is not unlike our own in Texas in that our profession is regulated from within. Each lawyer licensed to practice law in Texas is subject to the Texas Disciplinary Rules of Professional Conduct and is regulated by the State Bar of Texas.

Our system of regulation within the profession is worthy of public trust. Earlier in my defense career I was honored to serve on a State Bar grievance committee where we heard complaints of lawyer misconduct. During my 6 years of service we heard a variety of complaints ranging from unconscionable fees to outright criminal behavior on the part of practicing attorneys. I believe the process was fair overall and achieved just results for both the complainants and the lawyers involved. (I am happy to say I never heard about a lawyer covering for another lawyer, or heard of lawyers giving a client a false alibi!)

Anyway, check out Peter's blog. If you are a Clint Eastwood or Richard Burton fan, you'll be happy to know one of his favorite movies is "Where Eagles Dare." A great WWII action flick.

Wednesday, July 18, 2007

Somebody Please Take My Garbage

I'm embarrassed to admit that I've developed a genuine fear of my garbage man. I never knew how many rules there were when it came to collecting garbage. First, when I was building my house I could not put any construction waste into the garbage. (ok, I can live with that) But then later, everything had to be placed inside the provided container. I got into trouble when I had large cardboard boxes placed next to the can that I could not crush and fit into it. The home owner's association recommended I purchase another can, but I hardly had room in my garage for the first one.

Last week I came home from work after having left the garbage can out on the curb for pick up. To my surprise only half the garbage had been taken from the can. I thought - what did I do wrong this time? There was no construction debris. There was no dirt or grass clippings in the can. There were no un-crushed boxes left on the side. What was it this time? I asked my wife, please darling - find out why the garbage man is not taking our garbage. I told her, honey - I think I know garbage when I see it. Why doesn't the garbage man see what I see - garbage?

My story illustrates something that's been under my skin for a while now. The over criminalization of social and economic behavior in America. In 2003, Paul Rosenzweig wrote:
Congress has exercised precious little self-restraint in expanding the reach of federal criminal laws to new regulatory areas. Estimates of the current size of the body of federal criminal law vary. It has been reported that the Congressional Research Service cannot even count the current number of federal crimes. The American Bar Association reported in 1998 that there were in excess of 3,300 separate criminal offenses. More than 40 percent of these laws have been enacted in just the past 30 years, as part of the growth of the regulatory state. And these laws are scattered in over 50 titles of the United States Code, encompassing roughly 27,000 pages . . . The appetite for more federal criminal laws is driven principally by political consideration, and not by any consideration of whether particular laws are intrinsically federal in nature. The growth of "public welfare" offenses will, therefore, be restrained (if at all) only by a public or a court system educated as to the need for restraint.
The National Federation of Independent Business commented:
Small businesses are required to comply with more than 75,000 pages of federal regulations, and more than 27,000 of these pages of regulations carry criminal penalties. Unfortunately, an increasing number of well-meaning, unsuspecting small-business owners are being convicted and serving jail time for regulatory crimes they did not even know existed. In addition to facing criminal prosecution for not complying with U.S. regulations, small-business owners can face criminal prosecution for violating foreign regulations of which they might not have been aware.
Writing about a bill pending before the U.S. Senate titled the "Local Law Enforcement Hate Crimes Prevention Act of 2007," Chuck Colson writes:
We’ve seen where laws like this can lead: Hate crimes have been defined to include verbal attacks—and even peaceful speech. The Thought Police have already prosecuted Christians under hate-crime laws in England, Sweden, and Canada. And in Pennsylvania, 11 Christians were prosecuted under the state’s hate crime law for preaching on a street corner against homosexuality.
On the Texas Hold 'Em Blogger, the author writes here about the criminalization of thought. Apparently, two 16 year old girls in Crystal Lake, Illinois were arrested and charged with felony hate crimes because they printed and distributed an anti-homosexual flyer.

Yep, the garbage man has brought to a head my disdain for the over criminalization of social and economic conduct in our county. By the way, do you know why the garbage man did not take all my garbage last week? It seemed I did not have everything inside a bag - then placed inside the can. I was enraged. How could the garbage man have this much control over my life? Well, it appears it is simply a sign of the times. Here's hoping the garbage man takes all your garbage this week!

Monday, July 16, 2007

Police Perjury

Gideon's post last week about a police officer lying in traffic court got me thinking all weekend. His post revealed a systemic problem in the criminal justice system which criminal defense attorneys must continually combat. Judges let it slide. Prosecutors often encourage it.

Gideon wrote of a trial in which the ticketing officer either lied about facts, or simply made something up about an encounter he could not remember. He concluded:
What’s the likeliest scenario? I’m going with “he has no actual memory and made something up”. One might say, in this case it’s not that big a deal. Yes, there is a conviction, but it’s a traffic violation and the penalty is a fine. But it is indicative of a greater problem, which has far more serious impact in felony trials. Exaggerations are routine, blamed on bad memory. Sometimes they’re written off as harmless, but never should be. Witnesses have to be held to the highest standard, for in criminal cases, someone’s liberty hangs on the veracity of their statements. The State is often quick to prosecute lay witnesses that perjure themselves, but rarely do you hear of the law enforcement official that is similarly charged.
Gideon linked to Christopher Slobogin's law review article about the subject. It's a must read for defense lawyers. Slobgin commented on the reasons for the police lying in court:
The most obvious explanation for all of this lying is a desire to see the guilty brought to "justice." As law enforcement officers, the police do not want a person they know to be a criminal to escape conviction simply because of a "technical" violation of the Constitution, a procedural formality, or a trivial "exculpatory" fact. As Skolnick puts it, the officer "lies because he is skeptical of a system that suppresses truth in the interest of the criminal." A related reason for police dissembling is the institutional pressure to produce "results," which can lead police to cut corners in an effort to secure convictions. Peer practice may also play a role. One reason Skolnick says police perjury is "systematic" is that "police know that other police are perjuring themselves.
Slobogin also noted:
Prosecutors put up with perjury because they need a good working relationship with the police to make their cases. Additionally, at bottom, they probably agree with the police that the end justifies the means. Judicial acquiescence to perjury can be explained to some extent by prosecutorial failure to make the case for it. But defense attorney arguments and the judge's own observations can provide plenty of evidence of testilying in at least some cases. To the extent judges ignore obvious perjury, it is probably for the same reasons attributable to the prosecutor: sympathy for the police officer's ultimate goal and, as Professor Morgan Cloud put it, "tact" — the fact that "[j]udges simply do not like to call other government officials liars — especially those who appear regularly in court.
This is important stuff. Not only recognizing it exists but understanding the reasons behind it. Face it, the police and prosecutors want to win. Especially when prosecuting someone they believe is a "scumbag" and guilty of something anyway.

Significantly, the Texas Legislature attempted to take a bite out of this problem some years ago when it passed SB 1195. The bill required officers to have either probable cause or obtain written or recorded oral consent before they could search a vehicle. Current law did not require police to tell drivers that they could refuse a search if no probable cause existed. However, Governor Rick Perry vetoed the bill. In a veto statement, Perry said he believed the state’s constitution and case law already provided sufficient protection from unreasonable searches. Perry said in his veto statement:
There is insufficient information now to determine whether signed or taped consent requirements place too onerous a burden on law enforcement or provide additional protections to the public.
What about the onerous burden of an unjust conviction obtained because a police officer made something up to provide justification for his behavior? At the time I thought how short sighted Perry was for the veto. I can't count how many times clients told me about the police searching their vehicles without consent, but the police report showed the officer's justification for the search was consent. Had these encounters been video taped I bet we'd have beaten some of those searches. However, since nothing was recorded it was always my client's word against that of the officer. Who do you think the judge and prosecutor believed?

How do we fight this problem of the police lying in court, or making something up when they don't really remember? That's got to be a subject for a future post.

Friday, July 13, 2007

The Persuasive Case - Get The Facts

Why should a potential client know how the persuasive case is built? Isn't that the criminal defense lawyer's job? Fortunately, an informed client can benefit greatly from such knowledge. It means they can be actively involved in the development of their own defense. Involved clients are often happy clients. Secondly, when shopping for the right defense lawyer the informed client has objective criteria from which to chose a defense lawyer. If they interview a lawyer unfamiliar with building the persuasive case, the client should be looking elsewhere for legal counsel.

The first post in this series on building the persuasive case focused on credibility. The next areas to explore are fact gathering, developing legal theories, and brainstorming for ideas. Today we'll talk about gathering facts.

Factual material should be gathered from every possible source within the economic limits of the case. The client is a major source of information. Beyond the client, an independent investigation should be conducted by the defense lawyer. That means interviewing key witnesses and sometimes using a hired investigator as part of the defense team. A criminal lawyer should always discuss the utility of hiring an investigator during the initial client interview to help the client prepare for possible expenses that might be incurred.

The crime scene should be visited - including the time of day of the alleged events. Plan on taking photographs, preferably digital photographs which can be downloaded onto a computer and organized using an appropriate image viewing program. Depending on the case, physical measurements of the scene could be obtained. Sometimes preparing a scaled diagram of the area is important. Observe lighting conditions, traffic patterns, and movements of people in the area.

Develop a discovery plan. Specifically, what information is needed from the prosecutor to help develop the case? What photos or video did the police take? What physical evidence was collected? (Amazingly, so few lawyers even inspect the physical evidence when preparing for trial). Often prosecutors will provide informal discovery if they believe the defense lawyer is working towards a resolution of the case in good faith, even if the prosecutors have a closed file policy like those in Brazos County. Always get the police photos. Always view the police video. (Criminal cases have been dismissed after prosecutors realize their video did not quite match what the police report said). Always get copies of recorded audio.

What kind of relevant documents exist? What search warrant affidavits, probable cause statements, accident reports, or other public information is available? Medical records, hospital records, MHMR records, school records, and public records pertaining to the client, alleged victim, and witnesses. Obtain information and standards from governmental organizations through subpoena or open records requests. Training manuals, standards documents, and the like. For example, field sobriety testing manuals are commonly used to develop an attack upon a police officer's administration of DWI sobriety tests.

Once factual materials are gathered experts may be needed to evaluate the evidence. Forensic experts, psychologists, fingerprint experts, or others pertinent to the case. Maybe a toxicology expert in a DWI case. Certainly, a computer forensic expert in a child pornography case. DNA experts when the State is using biological evidence. The list goes on and one. The possible expenses involved with hiring experts should also be discussed with the client at the initial interview.

Once the facts are gathered the Bryan criminal defense lawyer can begin to decide upon legal theories applying to the case and brainstorming for ideas. Those topics will be next when we return to building the persuasive case.

Wednesday, July 11, 2007

Lawyer Advertising

For good or bad, websites, search engines, and Googlebot are facts of advertising life. If we want to be seen - if we want to get phone calls - we must understand how the system works and use it to our advantage. Face it, most lawyers need to advertise if they want to be in the hunt for business. People must find us if we are to get the calls. An adage in bicycle racing is "train your weaknesses, but race your strengths." If you're a former DA, there's nothing wrong with touting that fact to remain competitive in the marketplace. If you have experience setting you apart from the competition, I have no problem with you using it to generate calls.

However, we know it's a competitive world and not all lawyer advertising will be scrupulous. Shawn Matlock observed:
One of the most common situations I encounter with potential new clients is the statement "Another lawyer said he can get my case dismissed." I hear it so often, I can almost predict it during the interview with the precision of Babe Ruth calling his shot. There are any number of things wrong with this statement. First and foremost, any attorney that tells you what the outcome of your case is going to be during the initial interview is lying to you. It's that simple.
Scott Greenfield posted here:
We write about how we want to empower the consumer of legal services to make sound choices in retaining a lawyer, and how more information (regardless of quality or deceptive nature) adds to the body of knowledge available to the consumer. What a load of crap. Information is fine, but only if it is honest, legitimate and meaningful. Information that is crafted for the purpose of playing consumers is wrong, and demeans the profession.
I could not agree more. But we cannot ignore the fact that clients are ultimately responsible for their own buying decisions. Maybe I am being presumptuous. But when I shop for a new car I take it to my trusted mechanic and test ride the car. When I'm looking for a dentist I ask people who have seen the dentist's work and inquire about the quality. When I'm looking for a lawyer I must do my homework, too. If I buy a lemon because I did not do my homework, it's ultimately my fault.

Mark Bennett posts here and suggests conscientious lawyers can teach potential clients what they want:
The accused are like most other people: some of them want to be lied to, some of them want the unvarnished truth, but most don't know what they want. They are, however, educable . . . We conscientious lawyers who believe in telling clients the truth can teach our potential clients how to choose a lawyer, and what to look for -- in other words, we can teach them what they want.
First, are we really teaching clients what they want? I think most reasonable people already know what they want. Mark is right that some people want to be lied to. But most people just want someone who cares more about them than the money. Most people just want a lawyer who will empathize with them and work hard to get the best results possible under the circumstances. Thankfully, even marginally sophisticated clients understand lawyers practice law to make a living. But if we can successfully place ourselves in the shoes of the potential client, demonstrating both confidence and competence, we have a better chance of persuading them we are a good choice among several other good choices. If we can't do that, we are in the wrong line of work anyway.

Finally, Gideon notes:
It’s a delicate balance you have to achieve in choosing an attorney. First, who can you afford? Second, of those you can afford, which one is best for you . . . Setting the right fee is important too. Clients may be stupid, but they’re not stupid.
We also must allow the free enterprise system to work its magic and weed out the schmoes. I've seen it work in Brazos County - cut rate lawyers coming into town promising the moon. Over time they fold because (if I can borrow a phrase from Mark Bennett) "They're writing checks in their marketing that they can't cash in the courtroom." But I think it is even more basic than that. We all cannot be "successful" in the courtroom all the time. But we can be caring and empathetic all the time. That is the service which stands the test of time. The quality of our service is what brings people in and keeps them coming back.

But life is not fair either. The schmoes really don't care. Sometimes the schmoes get the business. It's a hard pill to swallow that others must suffer because of unscrupulous behavior. Conscientious lawyers just can't dwell on that inequity. If a client gets screwed by some fly-by-night, hopefully the word gets out and the free enterprise system will work its magic. If not, we can find comfort in in Romans 12:19: "Do not take revenge, my friends, but leave room for God's wrath, for it is written: "It is mine to avenge; I will repay," says the Lord.

Monday, July 9, 2007

Texas: It's Like a Whole Other Country

For $30 you can get a Texas license plate with the slogan: "Texas: It's Like a Whole Other Country." Those words never rang more true after I read the story of Scot Noble Payne. Mr. Payne was an inmate of the Idaho Department of Corrections being housed in a privately owned corrections facility in Dickens County, Texas. The facility was operated by a Florida company called the GEO Group. Idaho had a policy of easing inmate overcrowding in their own state by farming out inmates to other facilities like the one in Dickens County. The problem was that conditions at this facility were so deplorable and sickening that Mr. Payne used a razor blade to slice two 3-inch gashes in his throat and bled to death in the shower of his cell after writing 20 pages of letters to loved ones describing the decrepit conditions. The "Kick Ass NORPS" out there will be happy to know Mr. Payne was serving time for molesting a child.

After Payne's suicide, the Idaho Department of Corrections health care director inspected the Texas prison and declared it the worst facility he had ever seen. The inspector noted that Payne's cell was unacceptable and the remainder of the facility was beyond repair. After the inspector made his report, warden Ron Alford was eventually fired. Alford's excuse was that GEO did not provide enough money to make necessary improvements.

Families of incarcerated inmates should know that GEO was hired to operate prisons in 15 other states despite reports of abusive guards and terrible sanitation problems. Also, GEO was sued after a female inmate in the Val Verde County, Texas prison alleged she was raped by another inmate and sexually humiliated by a GEO guard. Beyond this, investigations into sex abuse allegations at another GEO-run Texas prison led to the firing of a guard who was a convicted sex offender.

What better way to rehabilitate a fellow human being than forcing him to live in a sewer. What better way to modify his behavior than to drive him into such deep depression that he feels his only escape is taking his own life. What better way to train another person to live a law abiding life outside of prison walls than by denying him basic sanitation, substance-abuse training, pre-release programs, and anger-management classes. I know our society has no love lost on convicted child molesters and other criminals, but come on. Do we train our children by making them live like pigs? Yes, it appears that Texas is like a whole other country - a third world one.

Saturday, July 7, 2007

Just Don't Do It

Every time I hear a defense lawyer talking to the prosecutor about arranging a polygraph examination for their client - I absolutely cringe. Polygraphs can be great tools and a "clean chart" can really make the difference with the DA or the grand jury. However, in discussing the efficacy of the criminal defendant submitting to a polygraph examination, Mark Bennett makes the following observations in Defending People: The Art and Science of Criminal Defense Trial Lawyering:
Sometimes a polygraph ("lie detector") examination report is helpful in the defense of a criminal case. Such reports are not generally admissible at trial, so that the jury will probably never see the report. But it might be a useful tool in convincing either the prosecutor or the grand jury not to proceed with the case. . . .

Government polygraph examiners use the polygraph as a tool to get confessions. Being told that the machine says you're lying provides tremendous motivation to change -- or at least explain -- your story. Sometimes a police polygraph examiner will tell the accused that he has failed the polygraph regardless of the real result.
Mark is absolutely right. Never, never, never take a polygraph examination without first consulting with a highly qualified criminal defense lawyer. If the lawyer suggests you take a polygraph administered by the police, fire that lawyer and hire another. The only polygraph you should take is one given by an expert hired by your lawyer, which protects the results under the attorney/client work product privilege.

Thanks Mark for bringing up the polygraph issue. I've had many unfortunate people contact me on the phone and explain they had submitted to a police polygraph and failed. My next question is always: "What did you tell them after that?" Rarely is the answer a good one for the accused. People need to know the dangers of taking polygraph examinations administered by the police. They are used as a tool to get confessions, pure and simple. My advice is "Just don't do it."

Thursday, July 5, 2007

Another Bad Traffic Stop in Texas

I received three calls this week from potential clients who were stopped by Brazos County police officers for not having a license plate attached to the front bumper of their cars. Rather, each had their license plate wedged between the dashboard and the windshield, which was visible from the front of the vehicle. Each had incriminating evidence seized by the police and each face criminal charges from DWI to marijuana possession. Each caller was comforted as I explained how the following law applied to their case.

Texas Transportation Code section 502.404(a) requires that a motor vehicle "display two license plates, at the 'front' and rear of the vehicle." Tex. Transp. Code Ann. § 502.404(a). The code does not define the "front" of a vehicle.

In State v. Losoya, 128 S.W.3d 413 (Tex. App. - Austin 2004, pet. ref'd) the Court of Appeals decided an issue very similar to that of my callers. In Losoya, the police testified they had noticed a pickup did not have a license plate mounted on the front bumper. Instead, the plate was wedged between the dashboard and windshield. As a result, the police stopped the vehicle believing a traffic violation had occurred. At the suppression hearing the police officer added he could see the license plate in the truck's front window.

The court found the term "front" ambiguous and looked to other factors to determine the meaning of the code section. The court said:
"While a place to display the license plate is usually found on the front bumper, the statute does not expressly require the use of this location. The display of the plate in some other place or manner is not inconsistent with the language or purpose of the statute. The officers testified that they could see the license plate in the windshield. We conclude that Losoya's display of his front license plate in the manner shown here did not violate section 502.404(a) as to give the officers grounds to reasonably suspect a violation of that statute."
Each of my callers should benefit from the decision in Losoya. Each detention should be challenged by a motion to suppress evidence based upon an illegal traffic stop. If the facts are close to those in Losoya, they should prevail and the incriminating evidence obtained by the police should be excluded from each case.

Wednesday, July 4, 2007

Happy July 4th

Happy Independence Day. I'm proud to be an American and even prouder to be a protector of individual rights and freedoms. As I enjoy a day off this July 4th, I pondered the justifications behind the America Revolution. After a bit of research I discerned the casus belli of the Revolutionary War.

Taxation without representation was the primary grievance of the American colonists. Taxes were imposed without representation in the British Parliament. Although the British responded that the Americans where "virtually" represented, the Americans rejected this fiction since the "virtual" representatives in Parliament knew nothing about the practical aspects of life in America.

British rule threatened the political ideology called Republicanism. Republicanism stressed liberty and rights as central values. It asserted that people had certain inalienable rights that could not be voted away by a majority of voters. It rejected aristocracy and inherited political power. Republicanism was the core political value system at work in American during the 1770's.

Finally, the British policy of salutary neglect was a large contributing factor to the Revolution. Salutary neglect was the long-standing policy of Great Britain which avoided strict enforcement of their parliamentary laws. Since the British imperial authority failed to assert the power that it had, the American colonies were left to govern themselves - and they got accustomed to the idea of self-control. Over time, the isolation in America created by salutary neglect developed an identity in America that considered itself separate from Great Britain.

The Bill of Rights were an out-growth of the virtues of Republicanism and the American Revolution. They were the first 10 amendments to the United States Constitution pasted in 1791. These amendments limited the powers of the federal government, protected the rights of all citizens, residents and visitors on United States territory. Among the rights these amendments guaranteed were:
  • the freedom of speech, press, and religion;
  • the people's right to keep and bear arms;
  • the freedom of assembly and freedom to petition; and
  • the rights to be free from unreasonable search and seizure, cruel and unusual punishment, and compelled self-incrimination.
  • The Bill of Rights also restricted Congress' power by prohibiting it from making any law respecting establishment of religion and by prohibiting the federal government from depriving any person of life, liberty, or property without due process of law. In criminal cases it required indictment by grand jury for any capital or "infamous crime," guaranteed a speedy public trial with an impartial and local jury, and prohibited double jeopardy.
Happy July 4th. I hope you, too, are proud to be an American. I'm very proud to be a lawyer practicing the Art and Science of criminal defense work, defending and protecting those rights and values fought for and died for so many hundreds of years ago.

Monday, July 2, 2007

Credibility - The Only Thing

Legendary football coach Vince Lombardi reportedly said, "Winning isn't everything. It's the only thing." In the courtroom, Credibility is not everything. It is the only thing. Without credibility the criminal defense lawyer cannot hope to win. But credibility is built slowly, one small step at a time. It can be secured only through tireless and difficult effort - but the payoff is worth the sacrifice.

How does the defense lawyer develop credibility in the courtroom when every time we walk in on the first day of trial we are facing a group of people who question our motives. They assume we will never let the truth stand in the way of a victory. These same people believe a lawyer, especially a criminal defense lawyer, will lie in court to promote their case. If a trial is a credibility contest, how does the defense lawyer establish they are the one lawyer in the room who should be trusted?

We begin by always telling the truth. The defense lawyer cannot afford to lie about anything. Every statement that utters from their lips during trial must be completely accurate, even if it hurts. If the lawyer is in a situation that seems to call for a "little white lie," take the road less traveled by lawyers and say nothing. See Scott Greenfield's post on the strategy of saying nothing.

However, honesty alone is not enough. Credibility requires honesty and knowledge. The criminal defense lawyer must know more about the case than anyone else in the courtroom. Every statement the lawyer makes during trial must be correct. This can only happen when the lawyer's preparation has been exhaustive. When we make mistakes in front of the jury we lose hard earned credibility. But mastering the facts and legal issues in a case is difficult work, especially when the lawyer is busy juggling other cases and the practical aspects of running a law practice. The answer? Have fewer cases paying higher fees. Several of the blawgers commented on this issue last week here, here, here, and here.

That's enough for now. Soon we'll discuss the building of a persuasive case and using credibility to get results. Please stay tuned.