Defense Discovery Revisited

In light of my recent post, "Trial by Ambush," here's a developing story about the inequities of discovery rules in Texas relating to the defense of citizens accused of crime. A quote from the February 12th edition of the Houston Chronicle:

The right of a defense attorney to use a copy machine to do his or her job shouldn't be a big deal.

But in Harris County, some prosecutors consider themselves generous if they allow a defense attorney a peek at the case file and the chance to copy down witness names and other vital information by hand.

"It's like this unwritten rule we've always had," says Kelly Siegler, a chief prosecutor and Republican candidate for district attorney.

Defense attorneys have complained about that unwritten rule for years.

"It's a blatant attempt to make the system unfair to us. It always has been," says Patrick McCann, president of the Harris County Criminal Defense Lawyers Association. "And frankly, when you can hit a button and e-mail me a copy of the report, or fax me a copy of the report, there's no reason not to."

While Siegler notes that the law doesn't require prosecutors to allow copies, she says she finds the no-copy rule "silly" and plans to get rid of it if elected.

"I know how prepared I like to be going to trial, and I think if I was a defense lawyer, without having the offense report to go by, to study, to examine, it would be very difficult to be as prepared," Siegler says.

Well, there's a fine "how-do-you-do." Why does it take rocket science and an election in Harris County to figure out the system's unfair? Just start making us copies and give us access to the files. You never know. The system may just work better.

Picking Our Battles

The best advice given the 250+ criminal defense lawyers attending the DWI Winning Edge training conference came from Mark Daniel. He didn't blow sunshine up our skirts. Rather, Mark told us something we already instinctively knew - defense lawyers must know how to pick their battles. And the best battles to fight are battles we have have a reasonable chance of winning.

A breath test case with a good video is a battle worth fighting. There the State's evidence is internally inconsistent with itself. Jurors are reluctant to convict when evidence they see, smell, and feel for themselves is not consistent with what the police and their experts try to tell us are facts.

So simple, yet so profound. Fight the battles we can win.

DWI Winning Edge

Today is training day at the Center of American and International Law hosted by the Texas Criminal Defense Lawyers Association. The program is focused on the defense of DWI in Texas, particularly the defense of breath test cases. The thought-provoking approach to defending the DWI breath test case boils down to one of 4 related strategies.

Going Head-to-Head with the State's technical supervisor by attacking the accuracy of the breath test result. In other words, was the breath test result accurate beyond being simply valid. Just because a breath test result is regurgitated from the machine and is a valid result, that doesn't mean it reveals an accurate determination of my client's breath alcohol level at the time of driving.

Garbage-In/Garbage-Out. There are many variables of human physiology which the breath test machine makes assumptions about. It makes the assumption my client's breath was a certain temperature. It makes assumptions about the ratio of alcohol in my client's breath compared to the alcohol in their blood. It assumes the breath sample came from the deep lung area rather than my client's mouth. There are many more problem assumptions which show if garbage goes in, then garbage comes out.

Believe What You See. The best DWI breath test defense often hinges on a good video. If my client looks reasonable good (sober) on the police video, how could the breath test result over the limit possibly be right? It is a great common sense defense that jurors can easily relate.

No Extrapolation. Regardless of my client's breath test result at the police station - the jury must still believe beyond a reasonable doubt the test result would have been over the legal limit at the time of driving. This is because the human body absorbs and eliminates alcohol from the body over time. It is possible the breath test result at the time of driving was less (under the limit) than at the time of the test.

Anyway, I always enjoy training and hearing about the experiences of other successful criminal defense lawyers. My clients will benefit from the hard work of others. Fellow defense lawyers Hunter Biederman and Robert Guest are attending. Check out their blogs for comments on the conference.

What Are We Worth?

My friend over at the Matlock Blog shared a perturbing story about getting his attorney fees cut by a judge who failed to give him the benefit of the doubt regarding a hard fought battle to get good results for his client. Shawn lamented:

Today, I received notice that the judge had cut my bill by 75%. Unbelievable. What the judge basically told me was that the amount of time I should have spent on this case was the equivalent of an afternoon at the bar. Not that I do that kind of thing.

So I realized a couple of things today. I respect more and more those that can somehow hack a living out of what the judges see fit to pay them for work. And I'll be damned if I will be one of them.

A lot of people need representation. Actually, everyone needs good representation, but few really get it. But if judges continue to devalue the work of the defense bar, those in need will never get it.

I feel your pain Shawn. I agree many of the most interesting cases come from the well of court-appointments. I also appreciate your desire to take court-appointments because many of these unfortunate people need good lawyers, but just can't afford the fees.

Most importantly, judges need to respect the time good lawyers put into difficult cases and pay them a fair wage. How do the courts expect lawyers to invest the necessary effort into a case when they fear getting a pay cut? Many highly qualified lawyers get off court-appointment lists for that reason alone.

Shawn, I know your fees got cut. But if I were you, I'd go back a second time and let the judge know how feel and what the case really took to get resolved.

What Would Your Mother Think?

Recently, several student-athletes have run afoul of the criminal law. In December 2007 two Texas A&M football players, Yemi Babalola and Brandon Joiner were suspended indefinitely after their arrests for robbery and drug offenses. In August 2007 a former Bryan High School basketball player, Michael Young, was sentenced to life in prison for stabbing a local woman 42 times.

Nothing hurts more than seeing a promising athlete's career fade-to-black because they were not responsible enough to work hard, play fair, keep clean, and stay out of trouble. Criminal defense lawyer, Micheal Taheri, featured in an article in the "Buffalo News," offered a simplistic, yet unique method of encouraging his client athletes to stay clear of law enforcement:

Amherst attorney Michael S. Taheri looks at all these incidents, shakes his head, and offers a simple piece of advice for student-athletes everywhere.

“In any given situation, I tell them to ask themselves, ‘Would my mother be proud of me if she saw what I am doing at this moment?’ If you look at your actions from that perspective, it can keep you out of a lot of trouble.”

“I try to explain to them that the things they do in their high school years can have serious ramifications for them years down the road. When they apply for sports scholarships, many colleges ask them right up front, ‘Have you ever been convicted of a crime?’

“When they hit the job market, a lot of employers ask the same question. A DWI or drug conviction at age 17 can hurt you down the road.”

About student-athletes, Taheri also commented:

“Every year, I see more and more of them getting into trouble. Every year, I see situations where outstanding student- athletes who have the potential to be scholarship players, or even potential pros, throw it all away for drugs or alcohol.”

Student-athletes, especially the most accomplished ones, are highly visible in their schools, often popular and often faced with many temptations, including opportunities to attend parties where drugs and alcohol are available.

Top student-athletes are sometimes coddled and often put on a pedestal by American society. But society also subjects the young athletes to extreme pressures — including the pressure to succeed, and peer pressures that lead some into illegal conduct.

Although not confined to the student-athlete, there are several common criminal trouble spots facing young people, especially in a college town where temptations abound:

• A DWI arrest can cost an athlete and his parents plenty. Fines imposed by a judge, alcohol evaluation and counseling, various state fees, increased insurance costs and legal fees can put them in a financial hole for years.
  

• Obtaining alcohol for anyone younger than 21 can result in criminal prosecutions for providing alcohol to a minor, endangering the welfare of a minor, or other crimes.

• Possessing marijuana or other drugs can result in both driver's license suspensions and jail time.

• Even consensual sexual conduct with an individual under age 17 can result in a criminal prosecution. An athlete who is 17 years or older, having sex with a 16- year-old, could potentially be prosecuted, even if the girl misrepresented her age.

• A student who sends nude images of a minor over the Internet could be prosecuted under tough federal and State child pornography laws.

• Harmful hazing activities — such as forcing a teammate to drink large amounts of alcohol — could constitute a crime be punishable by up to a year in prison, or longer.

Student athletes face many pressures in our culture to perform. But Helping Parents Parent is part of the job of the criminal defense lawyer. If we can help save even one, the effort is well worth it.

On Grace and Mercy

I loved this article from the Baylor University "Lariat." Baylor Law School Professor, Mark Osler, remarked how he was driven into the noble field of criminal defense work:

The discussion, led by Mark Osler, Baylor professor of law, and Hugh Kirkegaard, associate minister of McNeal Baptist Church in Ontario, Canada, incorporated faith into the world of criminal justice.

"Jesus was a criminal defendant and not a prosecutor, and that matters," Osler said. "God chose to make his son a defendant and not a prosecutor."

Focusing on the element of grace and mercy, Osler said, "Criminal law is all about managing tragedy . . . "

Although Osler began his career as a prosecutor, he eventually changed sides and became a defense attorney. He said the eighth chapter of John helped him make the decision. The chapter tells of an adulterous woman about to be stoned by an angry mob before Jesus intercedes and points out that no one is without sin.

"I started to think, maybe I'm not Jesus, maybe I'm not God," he said. "Maybe I'm the mob with a stone in my hand."

You've got to respect a guy who's not ashamed of the Gospel and willing to base a career move on the Truth. Moreover, I agree with Mark and often feel the prosecution is no more than a mob armed and ready to cast the first stone. If only more of them understood grace and mercy. They say they do - but they really don't.

Grace is getting what we don't deserve. Mercy is forbearance while withholding justice. Why don't they understand? If they only knew, each day of their lives, God withholds from them the judgment they deserve.

Election Season Blues

Primary season's in full swing in Brazos County, Texas. The most significant race effecting clients is between two Republican candidates for the County Attorney spot. The County Attorney prosecutes misdemeanor level cases like DWI, marijuana possession, family violence, suspended license cases, and the like. The contenders are Shane Phelps and Rod Anderson.

Anderson was hired by out going prosecutor, Jim Kuboviak, in 1986 and was appointed first assistant five years later. He made an unsuccessful bid for judge of county court at law in 1990.

Phelps ran for Travis County District Attorney in 1996 and 2000. He lost both times. Look here for the media coverage. Phelps moved to Brazos County in 2001 and joined the District Attorney's Office. He ran for the 272nd Judicial District Court seat in 2004 and lost.

Concerning Phelp's run for the County Attorney spot, Kuboviak said here:

. . . he doesn't believe Phelps has the same passion for the post that Anderson does.

"He [Phelps] just wants to run for something to get some power," he said. "He knew he couldn't beat Travis Bryan, his boss [Bill Turner] already had an opponent, so that was the best thing he could run for.

"If Phelps was interested in misdemeanors, he would have been involved in misdemeanor prosecution, but he hasn't. I think the citizens of Brazos County deserve to have somebody who cares."

In campaign literature on his website, Phelps makes the following promises to voters:

[To] Lead by example by trying cases. Insist on the highest standards of ethical conduct by assistant prosecutors. Train assistant prosecutors to be the most professional and best prepared lawyers in the courtroom.

All this tit-for-tat is making it hard to get work done at the courthouse. The misdemeanor prosecutors are on pins-and-needles, shouldering this scrutiny and believing Phelps will fire every last one of them if he's elected. They are tired and afraid of making mistakes making them look lenient. Their settlement recommendations have become harsher and they are less willing to work with defendants on simple things like court date resets.

Everyone's got the election season blues. If Anderson wins the primary - things should get back to normal - a good thing for my misdemeanor clients. If Phelps wins? Well, it'll be pure hell until next January.