Thursday, April 24, 2008

A Politicized Criminal Justice System

Over at the Exposed blog, Chuck Ross wrote about the rogue state of affairs in the American criminal justice system. Chuck commented on some articles by New York Times writer, Adam Liptak, about the alarming U.S. statistic we lead the world in producing prisoners over even larger countries, like China. Reflecting on Liptak's articles, Chuck pointed out:
I began my career as a criminal defense lawyer around the same time this country began its “get tough on crime” campaign. It is clear to me that the pendulum has swung much too far in the direction of draconian retribution. Liptak proposes several possible causes for this alarming situation, among them the politicized nature of the criminal justice system. In my experience, each election cycle brings a new clarion call for longer, harsher, and more punitive sentences. The election of prosecutors and judges, and even the politicized process of appointing federal judges, feeds this out-of-control wildfire.
Chuck's thoughts reminded me of a trashy post last summer where I bemoaned the over-criminalization of America, starting with my local garbage man. No doubt the rise in potential felony offenses and harsher sentences are symptoms of the politicalization of our justice system. Tough on crime means votes. Tough on crime means job security. Tough on crime means not having to think through society's problems anymore - you simply lock them up or kill them. Beyond this, the public buys into these ideas effecting punishment verdicts and even plea bargaining.

Anyway, I'll leave with one last quote from Chuck:
Until legislators, judges, and prosecutors recognize the futility of our obsession with protracted imprisonment for individuals whose lives can be salvaged, we will continue to be a “rogue state” when it comes to making the punishment fit the crime.

Wednesday, April 23, 2008

Hired Guns

Jamie Spencer brought attention to an interesting post by West Palm Beach criminal lawyer, Ron Chapman. Ron was lamenting that experienced prosecutors often cut their nose to spite their face by dismissing substantiated claims by a defense lawyer their client is innocent. Ron spoke of his personal experience representing a man charged with assaulting his wife by cutting her with a knife. A forensic pathology examination showed the wounds on the wife were self-inflicted. The prosecutors summarily dismissed this evidence. At trial, Ron's client was acquitted and the jury inquired why the case hadn't been dumped long before trial. Jamie surmised the prosecutors gave little credence to the defense expert because he was a hired gun. Since the hired gun was paid for his expertise, in the prosecutor's eyes, he must be lying.

I don't think prosecutors are that sophisticated. I think they just don't trust the defense on issues they've already made up their mind about. I've worked with prosecutors who, unbelievably, insisted police officers never lied or shaded their reports to support their theory of a case. They argued "why would a police officer risk his career to nail my client with a lie or prevarication?" The answer is simple, of course. Police officers are human beings and they like being right. They don't want their mistaken judgment discovered since it's embarrassing to be exposed in this way.

But back to the question whether a paid expert is less credible in the eyes of the prosecutor. Well, maybe. But the important folks to worry about are the jury. And it seemed Ron Chapman made the right call to press his case to trial and convince the people who really mattered that his client was falsely accused.

Thursday, April 17, 2008

No More Excuses

Grits has called us out to comment on the West Texas Polygamy case. I certainly appreciate a good prodding now and then. Scott, this is what I think.

First, I'm against polygamy. I'm against 14 and 15 year old girls having sex with 50 year old men. I'm against women being raised in a sheltered environment to believe their God-given purpose in life is to serve the needs of men. I'm against many things I don't agree with. But I'm also against the government sticking their nose into places it doesn't belong. I'm against searches and seizures based on less than probable cause. I'm against a set-up. I'm also against Child Protective Services imposing their moral worldview upon others through the use of powerful governmental resources. Who are we to impose our morality on people who want to live their lives separate from the world they view as hostile and sinful?

It's difficult not to be torn. Although many religious sects live their lives separate from mainstream society, we certainly don't want people using their religion as a justification for exploiting their young. Of course, where does one draw the line between freedom and exploitation? A tough question.

The problem is how to allow people to live in freedom, yet police their liberty enough to prevent injustices. If a seventeen year old girl wants to marry a 50 year old man, who are we to say no? I don't agree with it, and I'll say so, but imposing my moral worldview on others rubs me the wrong way. The trouble, again, comes when human beings use religion and freedom to exploit others, including their own. But like I said earlier, where does exploitation begin?

Beyond this, the initial entry and search of the West Texas compound couldn't look more like a set-up. A 16 year old complainant who they can't find and can't identify? A supposed 50 year old abusive "husband" who's living in Arizona at the time? Come on. I imagine law enforcement and CPS were just waiting for a chance to get onto this ranch and round up the usual suspects.

Furthermore, the idea of the Texas court system bearing the burden of this mess is beyond my comprehension. While the cops and CPS were itching to make THEIR mark on this isolated community, I suppose nobody gave any thought to the burden of placing 416 children in foster homes. (many of which have living conditions worse than where the kids came from in the first place)

So I don't have any answers right now. I just didn't want you to think we weren't thinking about these problems. Maybe things will become clearer as time goes on.

Wednesday, April 16, 2008

The Minefield of Texas A&M Student Discipline

Navigating the labyrinth of administrative rules and procedures in student disciplinary hearings at Texas A&M University can be daunting, even for the well informed. At the beginning of the fall semester I posted here, here, and here about disciplinary procedures, sanctions, and student rights. These posts are must reads for students who find themselves embroiled in the administrative system of student discipline at the University.

A few weeks ago two young A&M students contacted me about a disciplinary hearing which had gone badly for them. A young woman had charged these boys with sexual assault which was fully investigated by the College Station Police Department. The criminal case was presented to the Brazos County District Attorney who refused to prosecute for lack of credible evidence. The boys had talked with the detectives (without legal counsel) and given their stories. Luckily, the sexual assault case was refused. However, this aggrieved woman then took her case to the Student Conflict Resolution Office at Texas A&M. She made a complaint of sexual assault and the boys were given notice of hearing which would address the merits of the woman's complaint.

Since the boys had been "exonerated" by local law enforcement, they wrongly assumed they could walk into the student hearing, tell their side of story again, and everything would be alright. Well, they were dead wrong.

After the hearing the boys were found responsible for violating sections of the University student rules prohibiting sexual assault and suspended for one year of school. They were required to complete several remedial educational courses before reapplying to the University without any guarantee of readmission. Finally, they were saddled with a permanent blot on their educational records which would follow them around forever.

Then they called my office for help.

The Appeals process was a minefield in its own right. Winning any appeal is like a snowball surviving in . . . well, you know where. Anyway, the Appeals panel would give great deference to the original panel's finding of responsibility. So, we worked like dogs to develop a showing the boy's student rights were violated and the evidence was insufficient to support the original finding of responsibility. After 3 1/2 hours of testimony and two hours of deliberation, the Appeals panel remanded the case back for a new hearing on the merits. We were relieved, to say the least. Although we'd hoped for a dismissal, as least we had another rare bite at the apple.

The moral of this story? Students involved in disciplinary proceedings should never assume things will be alright. They must call a qualified lawyer immediately to help them navigate these treacherous waters. Disciplinary sanctions on one's educational record can haunt you as much as a criminal conviction. Unfortunately, the students mired in these matters are very naive. They rarely tell their parents what's going on. A HUGE mistake.

Please don't err by failing to act. Call an experienced College Station student rights attorney immediately if you find yourself in trouble with the University. Tell your parents. Remember, you'll only get one bite at the apple . . . make it a good one.

Real Work

Real fee paying work is getting in the way of blogging lately. I'll be back soon.


Thursday, April 10, 2008

Demanding Professional Ignorance

Another reason to refuse the Intoxilyzer breath test is the ignorance we demand from our law enforcement officers who administer it. The Dallas Criminal Defense Lawyer, Robert Guest, points out here the police are trained to be stupid when it comes to the breath testing machine:
Here is how the manual instructs officers to answer questions about the breath test machine, the Intoxilyzer 5000.

From the manual

"You are not required to know, and in fact know nothing, about the Intoxilyzer 5000, or your jurisdiction breath test instrument, its internal workings or anything other than how to operate it and take a breath sample from a defendant.... Never testify to its internal workings, or the defense attorney will discredit you and make you out to be a "thinks-he-knows-it-all who really knows nothing."

A typical breath test room contains the officer and the DWI suspect. That means NO ONE in the breath machine room knows how the Intoxilyzer works!! Another reason why you should have the right to counsel before BAC testing.

Bottom line? Don't take the breath test (or blood test for that matter). Politely, yet firmly, inform the officer soliciting a sample you want to counsel with an attorney before submitting to any test. The officer will, of course, reject your entreaty and note your refusal to submit to the taking of a sample. Even though your refusal can be used as evidence against you, we'd rather explain a refusal than a .250.

The best advice? Don't drink and drive at all. Stay home. Call a cab. Be safe.


There are rules against lawyers revealing client confidences. It's called the attorney/client privilege and only the client has the right to permit a lawyer to reveal confidential communications between them. High profile criminal defense lawyer, Rusty Hardin, broke this ethical rule when he gave the New York Lawyer an interview about how he counseled Roger Clemens prior to his congressional testimony (h/t Simple Justice):

H: What is a public person to do if he's falsely accused? Why do lawyers think that the safest strategy is the best strategy? Roger has made clear that he is not interested in the safest strategy. He has made clear that his public reputation, what his family and friends think, is what he holds dear. Who the hell am I to tell him that he's wrong?

B: You don't think much of your critics?

H: I expect second-guessing. But these people on TV, they talk about whether I should "allow" a client to testify, whether I should "allow" him to assert his innocence. Their attitude is paternalistic and patronizing. Who the hell is the lawyer to make that decision?

B: It seems like he was asking for trouble.

H: I saw it all coming. I knew there would be a deposition and a congressional hearing. I knew there would be a criminal referral. I fully advised Roger. He made the decision. He's a grown-up.

B: Even if that decision sends him to jail?

H: I believe strongly that people that can fight, should fight. Roger has the means, the ability, and the heart to fight. I salute him.

Hardin had been severely criticized in the media for permitting Clemens to testify before Congress. To justify his position and deflect criticism Hardin revealed confidential communications between he and his client to the media.

I see this happening frequently in courts across Texas. It's called lawyers "covering their asses" and I don't like it. Lawyers asking their clients on the record whether they're satisfied with the representation provided. Whether they've answered all their questions. Whether they've discussed all plea offers to settle the case. Whether they've advised them of their right to jury trial or their right to present evidence. Or whether they've recommended the client take the plea or fight it out in trial.

The reason lawyers do this is to protect themselves against a grievance or claim of ineffective assistance of counsel. However, I doubt these lawyers asked permission to reveal these confidential communications. I doubt these lawyers explained the client's right to not answer.

Just like Rusty Hardin, it's about making yourself look good and protecting your backside. Frankly, I'm critical of this C.Y.A. (I've even had a prosecutor ask the judge to make me interrogate a client on the record about whether I've advised him of all plea offers in the case . . . no way!)

If lawyers want to protect themselves then just work hard, investigate your case, and document your file. Grievances and claims of ineffective assistance are facts of life for the criminal defense lawyer. But you can't live your professional life in fear of them. And you shouldn't be asking your client in open court whether you advised him of this or that. That's C.Y.A. and it doesn't make you look good.

Tuesday, April 8, 2008

Monday, April 7, 2008

Death By Blogging

Here's an interesting piece from the New York Times about the "epidemic" of bloggers who are dying unexpectedly. Matt Richtel wrote here saying:
Two weeks ago in North Lauderdale, Fla., funeral services were held for Russell Shaw, a prolific blogger on technology subjects who died at 60 of a heart attack. In December, another tech blogger, Marc Orchant, died at 50 of a massive coronary. A third, Om Malik, 41, survived a heart attack in December.

Other bloggers complain of weight loss or gain, sleep disorders, exhaustion and other maladies born of the nonstop strain of producing for a news and information cycle that is as always-on as the Internet.

To be sure, there is no official diagnosis of death by blogging, and the premature demise of two people obviously does not qualify as an epidemic. There is also no certainty that the stress of the work contributed to their deaths. But friends and family of the deceased, and fellow information workers, say those deaths have them thinking about the dangers of their work style.

According to Richtel it seemed the bloggers most at risk were those "blogging for pay." (or maybe just the tech bloggers?) Thousands write for Web publishers (as employees or as contractors) or have started their own online media outlets with "profit in mind."

I'm thankful to say I blog for fun and not for profit. (See Simple Justice for Scott's take) I write when I want and about what I want. Nevertheless, my good friend, Ed Spillane, recently stumbled across my ramblings around the same time he read the Times article. As any good friend would, Ed immediately warned me about the dangers of blogging:
I read the other day in the New York Times that a couple of popular bloggers recently passed away from heart attacks . . . evidently blogging can be very physically draining. Keep up the good work!
I wasn't sure whether Ed was encouraging me to work hard because he liked the blog or because he anticipated my untimely demise. But knowing Ed from my days at the Brazos County prosecutor's office, I reckoned the former . . . rather than the latter.

So, I supposed the message for committed bloggers is exercise regularly, get your cholesterol checked, and stop taking money for your blogging efforts.

Sunday, April 6, 2008

Truth in Sentencing

From Sentencing Law and Policy came this report of a federal judge in the Eastern District of New York declaring a mistrial after polling the jury once they returned a guilty verdict. The judge declared the mistrial because the jury explained "had they known" of the harsh mandatory minimum sentence facing the defendant they would not have found him guilty.

Gideon picked up on the story here:
In most states, like in CT, juries aren’t told of the consequences of guilty verdicts: what the mandatory-minimum sentence is, what the maximum sentence is, whether the defendant will be sentence to probation, etc.

This isn’t the first time I’ve thought about this issue and it won’t be the last. I can’t decide. My reluctance to embrace juries knowing about sentences stems from tradition, I guess. It’s just what I’ve become used to . . .

But the benefits are obvious. With harsh sentencing and almost anything being a crime, this would be a way for the community - through the jury - to make a statement about what is and isn’t worthy of jail time and whether the sentences set out by the legislature are just and sufficient.

Commenting on Gideon's post the Windypundit opined:
One of the mysteries facing every juror is the meaning of “reasonable doubt.” As far as I know, the legal system has resisted most attempts to clarify the meaning of “reasonable” or make it easier to apply. Jurors aren’t told how careful they should be.

In most other fields where quality matters, the amount of care given to establishing quality depends on the consequences of an error. This is why airplanes are inspected more carefully than cars, and pacemakers more carefully than flashlights.

I think letting jurors know the consequences of a guilty verdict will give them a clearer idea of how much doubt is reasonable. A nagging doubt for six months suspended might seem more reasonable for a five year minimum.

In federal court juries are not permitted to decide sentencing. Federal defendants face mandatory minimums and sentencing based on rigid guidelines. In Texas, however, juries are permitted to assess punishment and to consider a full range of punishment when they're elected to assess the penalty after conviction.

The issue Gideon posited was whether knowing the punishment outcome had any affect upon the juror's perception of reasonable doubt. The purest form of "truth in sentencing" is, of course, in capital cases. The jury knows when they convict of capital murder, without mitigating circumstances, the defendant will be sentenced to death. Presumably, since the jury knows the sentencing outcome they'll examine the government's case more skeptically and demand more proof simply because they know what's at stake.

What about non-capital cases? Is there any type of "truth in sentencing" which might give a jury pause to convict knowing the punishment outcome? In a word? No. At least not in Texas. This might be a great idea if the punishment was predetermined and neither the judge nor jury was given discretion to depart from it. In Texas, however, the only other criminal sentence the jury knows in advance is capital murder when the death penalty is waived. If convicted the defendant is sentenced to life imprisonment automatically.

With that said, a Texas jury is not bound by any predetermined sentence. They are given a wide range of punishment outcomes and the power to chose what they think is best. Although "truth in sentencing" is not at work in its purest form, I've seen juries compromise for a lenient punishment result when the proof of guilt was on the slim side.

Nevertheless, I strongly support the right to jury punishment in criminal cases. The right gives an accused flexibility and tactical options when preparing their case for trial. It's not a perfect system by any means. But it is far better than the federal alternative with its harsh mandatory minimums and rigid sentencing guidelines.

Thursday, April 3, 2008

Race Is Not The Problem

Writing for the Cincinnati City Beat, Margo Pierce wrote this piece about attorney Stephen Bright's presentation to a crop of law students at Northern Kentucky University's Salmon P. Chase School of Law. Bright, the director of the Southern Center for Human Rights, explained his views about fairness (or lack of it) in the criminal justice system:
"I go into courts where nothing has changed since the 1950s, where the judge is white, the prosecutors are white, the court-appointed defense lawyers are white, where the only person of color is the person sitting at the defense table whose life or liberty is on the line. Even in the communities that have substantial African-American populations . . . all of the members of the jury are white."

. . . Bright went on to say that on an arraignment day it looks "like a slave ship has docked outside the court house." In the moments before the judge hears their cases, the men will meet their court-appointed lawyer, and for many it'll be the first and last time they encounter their legal counsel. The lawyer tells the man what the plea bargain is, and the deal is done.

Describing this process as "meet 'em and plead 'em," Bright said, "It's not called justice by anybody . . . The criminal justice system is the part of our society that has been least effected by America's Civil Right movement. The question here, of course, is: Are we going to let this kind of thing go on?

Bright's principle criticism was the adequacy of representation by public defenders. He challenged the ability of the current criminal justice system to provide the constitutional right to counsel. In defense of the defender let me offer the following:

First, I differ with Bright's inference the criminal justice system is unfair simply because the great majority of defendants are of color. Sadly, this disparity is a fact of life. But I hardly believe the criminally accused gets lack-luster legal representation based on the color of their skin. Rather, most deficiencies in the the system can be traced directly to the lawyer and their private work ethic. Money is also an issue as many lawyers taking appointed cases are paid dramatically less than a lawyer working the same case for a retained fee.

Another major problem is the judiciary's failure to financially support zealous representation. As a contrast, consider the Brazos County, Texas judiciary. As a whole they are very attuned to the needs of indigent defendants by financially supporting competent legal counsel. Judges here are willing to provide funds for investigators and other experts when needs are appropriately documented. I've requested thousands of dollars over the years for investigators, mitigation and DNA experts, forensic psychologists, social workers, and the like. As long as my requests were well founded and supported by independently verified facts, the courts had little trouble in granting the requested funds.

The main problem, of course, lies with the lawyer's work ethic . . . not the race of the accused. When lawyers simply want to turn the case for their paltry fee the system suffers. As long as defense lawyers continue to use financial disincentives (i.e., low pay; no money for experts, etc.) as an excuse for cutting corners the most needy in our justice system fail to get the quality representation they deserve. There is but one duty and one loyalty in the practice of criminal law. That is to defend the client with vigor. We push the envelope without regard to our personal cost. We have no divided loyalties - no competing interests. We have but one focus and one responsibility - to defend each client to the best of our abilities.

Tuesday, April 1, 2008

Case Dismissed

For those who maintained an unfaltering interest in the saga of my traffic ticket received with several cycling companions last January - I received the orders dismissing each ticket in the mail today.

With the blessing of the city prosecutor my companions and I had the choice of two options to resolve our pending traffic indictments. First, the prosecutor was willing to recommend a $5.00 fine in exchange for our pleas of guilty or no-contest. (Note I determined there was no conflict of interest between me and my companions in this joint representation agreement. I had led my riding buddies through the stop sign first, so I figured it was all my fault. I was willing to take the rap for all of us, if necessary.)

However, being the consummate defense lawyer that I am, I suggested an alternative. (I could hear in the prosecutor's voice the tone of disdain I've heard thousands of times before as I retorted with my counter-offer.) "How about some community service in exchange for an out-right dismissal," I asked. (You see, I staked my career and reputation with my buddies and local cycling community on these cases. I declared I could get these tickets dismissed, or I'd retire. The stakes were high, indeed.)

Well, the prosecutor took the bait. In exchange for completing a community service project of our choosing and design, all charges would be dropped with an apology. (Realize the city prosecutor was a cycling fanatic in his own right. I couldn't have asked for a better set of facts than this!)

An announcement went out over the cycling listserve. The time and place of the "new riders" clinic was set. My companions and I waited patiently for anyone to show up. Thirty minutes past and no one came. We were worried there'd be no community for us to provide such a valuable service to that Sunday afternoon. Well, the cycling (or should I say community service) gods were smiling on us. Two brave souls appeared for the clinic. We had a grand time teaching them about safe riding in groups, pace lines, and double rotating echelons. After the classroom time was over we hit the road for some practice. Note we obeyed every traffic control device and encouraged our students to take care to obey all traffic laws while cycling the streets of College Station, Texas. So there ended the saga, including three more cases in the win column.

I know some of you were hoping for more retribution from the State when resolving this dispute. However, the policies of general and specific deterrence were well at work over these past months. Furthermore, you can't keep a strong cyclist down. So, thanks for listening and I hope my story sends a clear law enforcement message. (Furthermore, I've finally removed the blog poll to everyone's delight, I'm sure.)

Gone To The Dogs

Robert Guest, at the Dallas Criminal Defense Lawyer Blog, posted about an interesting interview with drug dog expert, Steve Nicely. Nicely was used as an expert in a Nebraska criminal court where the reliability of a drug-sniffing dog was brought into question. According to the interview, Nicely's testimony helped persuade a trial court judge that police conduct involving a drug-dog violated an accused's right to freedom from unreasonable searches or seizures.

Thanks for the post, Robert. Often criminal defense lawyers face the prospect of having to challenge the probable cause to stop or detain our clients based on the alert of a police drug dog. Steve Nicely may be a good resource for those faced with this challenge.