Should You Work as a Police Confidential Informant?

This video explains the risks and benefits of working as a police confidential informant. Visit https://www.gustitislaw.com for more information about informants in drug cases, being a confidential informant, and the best defense attorney in Bryan-College Station, TX.

In this video, criminal lawyer Stephen Gustitis describes the advantages and disadvantages of working as a confidential informant for the police. Since the cops often use informants in drug cases, what should a person consider before making such an important decision. Steve is a Texas Board Certified Criminal Defense Attorney practicing in Bryan-College Station, Texas. He has more than 28 years of experience in the field of criminal law and criminal defense in Brazos County. His videos cover a range of the best defense tactics and criminal defense strategies, including whether you should work as a confidential informant for the police.

Pros & Cons of a Pretrial Diversion Program in Criminal Cases

This video explains the pros and cons of a pretrial diversion program, sometimes known as pretrial intervention. It considers how pretrial diversion works in criminal cases, its advantages and disadvantages. Visit https://www.gustitislaw.com for more information about a pretrial diversion program and the best criminal defense attorneys in Bryan-College Station, TX.

In this video, criminal attorney Stephen Gustitis describes how a pretrial diversion program works in criminal pre-trial proceedings and how it can help and hurt a person charged with a crime. Steve is a Texas Board Certified Criminal Defense Attorney practicing in Bryan-College Station, Texas. He has more than 28 years of experience in the field of criminal law and criminal defense in Brazos County. His videos cover a range of the best defense tactics and criminal defense strategies, including the advantages and disadvantages of a pretrial diversion program.

How to Withdraw a Guilty Plea After Sentencing

This video explains a criminal appeal and how to withdraw a guilty or no contest plea using a motion for new trial or writ of habeas corpus. Visit https://www.gustitislaw.com for more information about criminal appeal, how to withdraw a guilty plea after sentencing, and the best criminal defense attorneys in Bryan-College Station, TX.

In this video, defense attorney Stephen Gustitis explains how to withdraw a guilty or no contest plea following sentencing in a criminal case using a motion for new trial or writ of habeas corpus. The video discusses this appeal route in criminal cases and criminal appeal procedure. Steve is a Texas Board Certified Criminal Defense Attorney practicing in Bryan-College Station, Texas. He has more than 28 years of experience in the field of criminal law and criminal defense in Brazos County. His videos cover a range of the best defense tactics and criminal defense strategies, including criminal appeals and withdrawing a guilty or no contest plea.

Lie Detector Test to Improve Criminal Plea Bargaining

Enjoy our latest playlist at Gustitis Law which marries the use of polygraph tests and plea bargaining in criminal defense cases. Thanks for watching!

Another Quiet Defense Victory

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

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

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

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

Dropping Charges - The Non-Prosecution Affidavit

Clients often ask whether the prosecutor will dismiss their criminal case if the complainant "drops the charges?" During this scenario the complaining witness may contact the prosecutor and ask them to stop the prosecution of their case. In Brazos County, the prosecutors require the complainant sign a "non-prosecution affidavit" in support of this request.

Note the complainant has no actual authority to compel the State to dismiss a case. Rather, the prosecutor has absolute authority to continue, or not, the prosecution of any criminal case in Bryan|College Station or any other area of Texas. However, in the right situation a non-prosecution affidavit from the alleged victim can go far in giving the accused person negotiation leverage. That is, many times the prosecutor does agree to dismiss the case, or sometimes reduce charges, based on the wishes of the victim. But in other cases, like those involving serious violence, I've seen prosecutors give a non-prosecution affidavit the "circular file" treatment. That is, no value whatsoever.

So, when speaking with your criminal defense attorney about the issues in your case, don't forget to let them know if the alleged victim might be willing to sign a non-prosecution affidavit. Be very careful, though. DO NOT attempt to persuade, convince, or coerce an alleged victim to "drop charges." There are criminal laws prohibiting retaliation against a person who is a victim or one who reports the occurrence of a crime. You could be prosecuted for a serious felony offense, like retaliation, if you said the wrong things or inadvertently frightened the victim. LET YOUR LAWYER handle this matter after consulting with you.

Failure To Communicate Plea Offers

The criminal defense lawyer's professional responsibility to each client is to timely communicate plea bargain offers made by the prosecutor. When defense attorneys fail to communicate plea offers to clients they commit ineffective assistance of counsel, which can often lead to reversal in a criminal case.

To establish an ineffective assistance of counsel claim the client must, first, prove their lawyer's representation fell below an objective standard of reasonableness. Second, the client must prove the deficient performance resulted in prejudice.

Failure of defense counsel to inform a client of plea offers made by the prosecution is an omission that falls below a standard of professional reasonableness. Furthermore, courts have been unanimous in finding that defense counsel's failure to inform a client of a plea offer constitutes a violation of the person's Sixth Amendment constitutional right to effective assistance of counsel.

But the failure to advise the client of the offer is not quite enough to obtain a reversal. The client must also show they were harmed by the lawyer's unprofessional conduct. In other words, the client must further prove they would have accepted the plea offer had it been communicated. Luckily, the courts have not required defendants prove the trial court would have accepted the plea bargain to establish harm. Only that the defendant missed the opportunity of accepting such a bargain and presenting it to the trial court for consideration.

If you find out your lawyer failed to communicate a plea offer to you, contact new defense counsel immediately. Relief might be available and you need to discuss the matter with an informed and experienced criminal defense lawyer as soon as possible.

Patience's a Virtue in Brazos County

The smile on my client's face made the long wait worth it. He'd been arrested in November 2008 and charged with 8 counts of aggravated robbery, one count of burglary, and assorted controlled substance charges. During each visit with my client I encouraged him to remain patient. We had investigated the facts of the serious robbery charges and determined there was little evidence to prove guilt, if any.

The nature of this case dovetailed well with my earlier post regarding the corroboration of accomplice testimony. Here my client was being held on the testimony of an accomplice. (which can be probable cause enough to indict and detain) However, with the help of my investigator we demonstrated the State had no corroboration. After we brought this to their attention, we went before the judge requesting a bond reduction. Although we failed to obtain the personal bond we sought, the judge did lower the bonds significantly. However, we continued to wait and wait for the prosecutor to perform their follow-up investigation and come to the same conclusion we had, no corroboration.

That was 9 months ago. Finally, our patience paid off when the State agreed they'd dismiss 8 counts of aggravated robbery and one county of burglary against my client. We resolved the remainder of the charges with a plea bargain for time-served, and my client couldn't be happier. He's going home very soon.

So the moral of the story is be prepared with a large dose of patience. A good criminal defense lawyer can help you understand the ins and outs of your particular situation. But most of the time it's the prosecutor that must come around and see the handwriting on the wall.

Texas Drug Free Zones

Possession of controlled substances (including marijuana) within "drug-free" zones in Brazos County (and all areas of Texas, for that matter) result in more sever penalties and punishments. Depending upon the alleged offense, the range of potential punishment can rise to the next higher level, or minimum possible punishments can be increased. Even more problematic is the provision that punishments increased under the drug-free zone provision MUST run consecutively to other sentences imposed for other crimes. In other words, sentences under this scenario are stacked one upon another.

For instance, a person gets into a knife fight within 1000 feet of premises of a school, public youth center, playground, or on a school bus. Further, the person has several grams of a controlled substance in their possession and it's found upon their arrest within the zone. If convicted of aggravated assault and convicted of possessing the controlled substance in a drug-free zone, the punishment for the drug-free zone offense must be stacked on top of the punishment for the aggravated assault. Very onerous, indeed.

Assuming facts exist to convict, the accused is in a very tight spot. The criminal defense lawyer would be successful if able to persuade the prosecutor to waive the drug-free zone allegation, thereby removing the automatic stacking provision. In any case, the prosecutor's in the driver's seat and defense lawyers must work hard to help client's make the best of a poor situation.

Reversing a Bad Result - Ineffective Assistance of Counsel

Several prospective clients called me recently asking how they can appeal their criminal conviction and sentence resulting from a plea bargain or an open plea to the court (a guilty plea and waiver without a punishment recommendation from the prosecutor). "With great difficulty," I say. A plea bargain accepted by the trial judge waives most of a defendant's rights to appeal. However, there are a few cracks in the armor which potential clients should be aware.

First, a defendant's waiver of rights and plea of guilty must be voluntary. That is, the person's plea must be knowingly and intelligently made. Furthermore, the trial judge must make this finding on the record. However, if a person received ineffective assistance of counsel leading to their decision to plead guilty and waive their rights, a good involuntary plea argument can be fashioned. In that case, the defendant's plea and waiver can be withdrawn and the defendant can start from square one defending the charges against them. There are many ways a criminal defense lawyer might provide ineffective assistance of counsel leading to an involuntary plea. Following are just a couple to consider.

The failure to investigate is a common basis for ineffective assistance of counsel. If the criminal trial lawyer failed to uncover facts about their client's case that, had the facts been known, would have created a "substantial likelihood" the defendant wouldn't have waived his rights but insisted upon a trial, can cause an involuntary plea. The failure to locate an alibi witness is an example of the failure to investigate. The failure to discover a prior conviction, being used to enhance punishment, was void or voidable, is another example.

Another instance of ineffective assistance is when the criminal lawyer provides their client incorrect advice on the law applicable to the case and that erroneous advice leads the client to plead guilty and waive their rights. One example might be where the client is charged with multiple counts of sexual assault upon a child. The trial lawyer tells their client "if you plead guilty and ask the judge to assess punishment the sentences cannot be stacked upon one another, but can only run concurrently." (WRONG!) The client pleads guilty, waives his rights, and the trial judge guts the client with stacked prison sentences. In short, the client's guilty plea was based on the erroneous advice of his lawyer. Had the advice been correct the client would have insisted upon jury trial. That's an involuntary plea.

Another common example of ineffective assistance is when the criminal defense attorney fails to communicate a plea bargain offer made by the prosecutor. Had the plea offer been communicated to the client, they would have accepted it. Although this is not an "involuntary plea" situation, it is yet another way to reverse a bad result for the client based on ineffective assistance of counsel.

Reversing a guilty plea and waiver is tough and technical legal work. Many times, if not most, the attempt is unsuccessful because of the great bias contained within the law toward the finality of convictions. However, a good Texas criminal defense lawyer, experienced in appeals, can sometimes work the miracle a client needs for a second bite at the apple. But critical time limits often apply! Contact an experienced criminal appeal attorney immediately to discuss your case.

Good Sense On DWI

Somebody is finally talking some good sense in the Brazos County race for County Attorney. My comrade and fellow Brazos County criminal defense lawyer, Lane Thibodeaux, commented in the Bryan Eagle about how featherbrained the legislative bar is against deferred adjudication for DWIs in Texas. A product of the MADD lobby, I'm afraid. In any case, Lane is right and we hope somebody in Austin is listening.

Currently, DWI is one of only a handful of crimes for which deferred adjudication probation is not, by law, a punishment option. The hypothetical 21-year-old college student with no prior criminal history is therefore not eligible for consideration of this type of probation. The lack of this option handcuffs prosecutors dealing with this common scenario. It also is a financial boon to criminal defense attorneys such as me.

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

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

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

Seeking Justice or Convictions

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

Plea bargaining is a fact of life in the criminal justice system. You can't try every case, nor would you want to. Judge Jim Locke's take on the issue?

"Between 2,500 and 3,000 cases are filed in each court on an annual basis," Locke said. "It doesn't take long to realize that the way to keep up with that many cases is to dispose of 60 a week. We can't have 60 trials a week. We can't have 10. We can't have five. The huge majority have to be disposed of by plea bargain."

Prosecutors habitually tell us their job is to seek justice, not convictions. If this is so, then why complain when problem DWI cases, or those charged against first time offenders, are reduced to lesser charges? If society is better served by getting a first-time offender into the justice system by plea bargaining, then why spend time and resources trying cases to a jury, especially when you might lose?

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

With arrogance, or bravado, Phelps remarked:

"I will be able to double the number of trials in this office without breaking a sweat," he said, adding that while he understands cases have to be negotiated out of court, the current administration is allowing far too many.

Again, I believe Phelps is going out of his way to pick a fight on this issue. It's not surprising during the election season, though. Nonetheless, if Phelps wants the county attorney job he needs to develop better arguments for why he's the man for the job. Being a better trial attorney, or someone willing to try more cases, does not necessarily serve the community's interest any better that a person with good judgment who decides cases are best resolved by plea bargaining.

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

Client Out of Control? Give Him a Polygraph.

Let me preface my comments by saying any criminal defense lawyer who allows their client to take a polygraph examination administered by the prosecutor's expert is bordering on malpractice. The only polygraph a client should take is one administered by a polygraph examiner hired by the defense team. This makes the examiner subject to the attorney/client privilege and protects the results (good or bad) with the attorney work-product doctrine. With that said, sometimes it is good when a client takes and fails the test.

Client control and management is often a challenge even among the most experienced defense lawyers. After 18 years of criminal law practice, 14 of which as a defender, some of my clients remain unmanageable, or at least difficult to handle. That's ok, though. Over the years I've learned some tricks of the trade, one of which is the lie detector test.

Many clients refuse to face reality. Reality in the form of hard, indisputable facts, confessions, physical evidence. Prosecutors make offers to settle cases based upon this evidence, but often the client ignores this reality and insists upon a plan of action leading to inevitable failure. Sometimes the client insists upon a claim of innocence despite a mountain of contrary evidence.

In rides the polygraph examiner - from the client's point of view a neutral expert. The client knows the examiner is there only to get the facts. The client knows the examiner is not his advocate, does not negotiate for him, and does not care whether he is telling the truth. But the client also knows if he's lying there's a good chance he'll get caught. And once caught, the client knows he'll need to face reality. Ah . . . much better!

I'm amazed how much more manageable an unruly client becomes after he fails a polygraph. Moreover, the family feels better (assuming we decide to tell them) because their loved-one's claims have been fully investigated and given their proper due. The client is now in a better frame of mind to evaluate offers to settle, trial strategies, etc. I don't imply we roll over for the prosecutor, by any means. But at least the client has a proper grip on their case and can make better, more informed decisions about how to proceed.

So, is your client out of control? Consider giving them a polygraph. If they pass - great - hit the prosecutor over the head with it. If they don't pass, don't worry either. Sometimes the polygraph is for the client's benefit, not the prosecutor's.

Jobs Well Done

Give criminal defense lawyer Mark Bennett great credit this week for successfully defending his client charged with murder. Mark's success was measured not by an acquittal, but rather the punishment verdict of probation after the jury convicted his client. Wednesday, the jury returned a guilty verdict here and awarded Mark's client with probation here. Based on Mark's trial blog post here, it appeared the conviction and probation was a compromise verdict. Often when jurors battle between themselves on whether to convict, the aftermath of a guilty verdict is probation. I've seen this many times over the years. Mark's successful defense was quite apropos following my Wednesday post about prosecutors and judges approving probation for murder. Here's hoping Dunklin and Egerton (reporting for the Dallas Morning News) catch wind of this story.

Another superb example this week of Texas criminal trial lawyering occurred in my own Brazos County, Texas backyard. The law firm of James and Reynolds represented Susan Chiniewicz, charged with the murder of her infant child, dumped in a trashcan at the Texas World Speedway in October 2005. Chiniewicz was originally charged with capital murder, but by trial the prosecutor had elected to proceed on the 1st degree felony charge of murder.

The offer to settle the case was 40 to do. That is, in exchange for her plea of guilty to murder, the state was willing to recommend a sentence of 40 years in prison. Ms. Chiniewicz would not have been eligible for parole until she served 20 years flat time.

However, the Brazos County D.A.'s Office got quite the smackdown. The jury returned a verdict of guilty on the lesser charge of criminally negligent homicide and assessed a sentence of 2 years in a state jail. (see article here) Ms. Chiniewicz will serve each and every day of that 2 year sentence. A tail whipping by Jim and Cameron, indeed!

Good work by the Texas criminal defense bar.

Probation for Murder?

Reese Dunklin and Brooks Egerton reporting for the Dallas Morning News revealed their bias and naivety in their article Unequal Justice: Anyone Can Get a Deal. They criticized awarding probation, including deferred adjudication, to allegedly violent repeat offenders who had received prison time for prior crimes. The duo scolded both prosecutors for making the deals and judges for approving them. They said:

Most of the sentences originated with prosecutors, making plea bargains with the defense. The one exception was a convicted robber who, days after release from prison, tried to rob again and killed a man. He couldn't get a deal from prosecutors, so he threw himself on the mercy of a judge and lucked out.

Juries couldn't sentence any of these killers to probation, because they had felony records. But prosecutors and judges aren't bound by that restriction if they use a special form of probation – off-limits to juries – called deferred adjudication.

Dunklin and Egerton quoted Professor Marc Miller as authority in this field:

Marc Miller, a University of Arizona law professor and sentencing expert, called deferred adjudication "a stunning outcome for any killing" and added: "The point is only more true for a repeat killer."

Professor Miller was purportedly an "expert" on sentencing. However, I bet you dollars to donuts he never tried a murder case in his life. I suppose Dunklin, Egerton , and the learned Professor Miller would rather see the State push a weak case and lose their murder case to a jury, thereby emboldening the defendant and eliminating any potential community supervision that might have benefited the public welfare.

Why stick up for the prosecutors this morning? First, I understand their life as public servants since I shared it earlier in my career. More importantly, I tire of journalists pontificating on subjects they know little about. Problems with witnesses, bad police searches, involuntary confessions, and the like, turn murder cases into nightmares for a prosecutor. These "talking heads" have never experienced the reality check of a "Not Guilty" verdict appearing in conjunction with their name (as prosecutor) on the front page of their local news paper.

If the lawyers in charge of prosecuting murder cases are satisfied with probation, why shouldn't the public be too. When judges, who have authority to reject any plea agreement, are satisfied with probation, who are the talking heads to argue. Until they have tried, and lost, a murder case I wish the the likes of Dunklin and Egerton would keep their criticism of plea bargaining to themselves.

On Plea Bargaining

Clients often ask whether they should plea bargain their case. Austin DWI Lawyer, Jamie Spencer, recently posted about plea bargaining in the context of DWI defense practice. Since so many prospective clients ask about the process I thought I'd post some answers to commonly asked questions regarding plea bargaining in Texas state court.

In a plea bargain the accused person agrees to enter a plea of guilty, or no contest, in exchange for a punishment recommendation from the the prosecuting attorney. The prosecution may agree to dismiss or reduce certain charges if the defendant agrees to accept a plea bargain. Much of the time, plea bargains involve a deal that reduces punishment, or the risk of greater punishment to the person accused. Furthermore, the accused can avoid the time and cost of defending themselves and the publicity a trial could involve. The prosecution saves the time and expenses of a trial, while both sides are spared the uncertainty of trial.

The judge is not bound to follow the prosecution's recommendation, however. In other words, the judge reserves the right to reject the plea bargain if the judge feels uncomfortable with the deal, or if the judge feels the accused has not voluntarily waived their rights. What are the rights the accused waives in exchange for a plea deal? The big three are the person's right to a jury trial, the right to confront and cross-examine witnesses, and the right to remain silent.

When the right to a jury trial is exercised by the accused, it forces the State to prove each element of the the criminal allegation beyond a reasonable doubt. If the State is not able to unanimously convince a jury of 6 (misdemeanor) or a jury of 12 (felony) that all the elements have been proven, the accused person is legally entitled to be acquitted of the charges. An important right, to say the least.

When the right to confront and cross-examine one's accusers is exercised, the evidence presented by the State is tested through questioning by the accused or their criminal defense lawyer. Weaknesses in the evidence can be exposed through the exercise of this right. Under the right set of circumstances the State's evidence can be discredited to such a degree that it is unable to meet the burden of proof - beyond a reasonable doubt. Again, this results in an acquittal for the person charged.

When the right to remain silent is exercised by the accused, the State must prove it's case without the help of the person charged. In other words, the State cannot call the person accused to the witness stand and force them to risk self-incrimination. The person can remain totally silent during the trial and that cannot be taken as a circumstance of guilt against them. Nor can the prosecuting attorney comment upon the person's silence.

Before a judge can accept a plea bargain recommendation, the record of the case must show the person voluntarily and knowingly waived their rights and plead guilty to the charge. Texas courts are required to take proof of this to ensure the waivers on the record reflect a voluntary and knowing waiver of the big three.

Critics of the system claim the plea bargain system can put pressure on defendants to plead to crimes they know they did not commit. Furthermore, they claim the outcome of a plea bargain may depend strongly on the negotiating skills and personal demeanor of the criminal defense lawyer. Critics also claim the system encourages prosecutors to overcharge at the start of a case which leads to caseload pressures or unusually severe penalties for the accused. Lastly, the plea bargain may itself carry unintended ramifications. See here, here, here, and here for posts on the collateral consequences of pleading guilty.