True Trial Lawyering

In this year's edition of Texas Super Lawyers, Attorney Robin Gibbs was interviewed about his 40 year life as a commercial litigator. Gibbs answered a question about the volume of work required to be a successful trial lawyer and how he achieved a work-life balance. Gibbs said,

"One of the happily and sadly inexorable truths about being a trial lawyer is you have to work enormous hours. It is a very interventionist lifestyle and there is just no way around it. If you're not prepared, it's going to show, and it's not going to go well for you. There's just no way I've ever seen to avoid that aspect of it; and that's a lifestyle choice because it ripples through your entire life."

His answer struck a chord with me since my experience as a criminal defense lawyer was the same. The fresh-faced, aspiring young people who cross my path are taught this lesson. I don't know if they learn, but I try my best to teach them the life of a trial lawyer is very difficult. It's often thankless. It often feels like failure. Not many people truly understand the sacrifice we make to perform at our best. And Gibbs was right. If we don't invest the hours our performance will show. The jury might not know. Our client might not know. But the judge will and so will our opponent. It's embarrassing to come up short, looking like an idiot, because we didn't prepare. 

But that won't be happening around these parts. Nope, it never will.

Depositions in Criminal Cases

Criminal defense lawyers have a duty to investigate their client's case and interview witnesses. The clients expect it and so do the courts. The Court of Criminal Appeals has repeatedly held that defense counsel "has a responsibility to seek out and interview potential witnesses . . .  and the failure to do so may be ineffective, if not incompetent . . . "

To this end, in this month's "Voice for The Defense," William Copeland writes about interviewing State's witnesses through a seldom utilized article of the Texas Code of Criminal Procedure, (art. 39.02). Copeland writes:

The provisions of the Texas Code of Criminal Procedure (Art. 39.02) for deposing witnesses are among the most helpful and least utilized tools available to a criminal defense attorney. Defense lawyers seldom attempt to depose State witnesses because of the perception that judges will summarily deny the required judicial authorization. Some judges will be resistant to applications for depositions, but others will be receptive. No judge is going to do it sua sponte—you have to ask. There is more law supporting your right to take depositions than you might realize.

Art. 39.02, TCCP, provides for deposing witnesses when “good reason exists for taking the deposition,” and requires the filing of “an affidavit stating the facts necessary to constitute a good reason for taking the witness’ deposition and an application to take the deposition.” You must file both the affidavit and the application. A sworn application alone is not enough. You must request and conduct a timely hearing. Advancing an application at trial constitutes waiver.

So criminal defense attorneys have an out when confronted with a witness who refuses to speak to them, or the defense investigator. Use the Code of Criminal Procedure to compel the uncooperative witness to talk. Furthermore, interviewing State witnesses is essential in providing effective assistance of counsel.

Honored by Texas Super Lawyers

Stephen Gustitis Lawyer in Bryan, Criminal Defense Attorney TX : Super Lawyers

New Texas Laws Take Effect Thursday

New Texas laws go into effect September 1, 2011. A package of bills proposed by the Innocence Project of Texas will go onto the books, overhauling eyewitness practices by law enforcers, ensuring that if DNA evidence exists and is available to prove a person's innocence then it will be tested and creating uniform standards regarding the collection, retention and storage of biological evidence. Cory Session - brother of Tim Cole, a Fort Worth man who died in prison for a crime he didn't commit - now serves as the policy director for the Innocence Project and supported these bills. HB 215, SB122, SB 1616.

The Romeo and Juliet law is geared to spare teens and young adults who have consensual sex from being labeled sex offenders. It prevents a young defendant from having to register as a sex offender if he or she had consensual sex with someone 15-years-old or older and there is less than a four-year age gap between the couple. SB 198

Texas minors who like sexting - or sending sexually explicit pictures or messages, generally from one cell phone to another - better watch out. Until now, prosecutors either dropped the case or had to prosecute minors under adult pornography laws. Starting Thursday, youth who sext and get caught can be charged with a misdemeanor - which can lead to jail time with repeated offenses. Not only that, but underage Texans convicted of sexting will take a state-sponsored educational class about the dangers of sexting - with one of his or her parents. However, the sexting conviction may be removed from the youth's record at the age of 18. "Here's the message to parents -- pay attention to this new technology," said state Sen. Kirk Watson, D-Austin, who carried this bill. "Pay attention to your kids. Know what it is they're doing with regard to text messages, sending images and that sort of thing, and take the time to talk to them." Senate Bill 407

And my personal favorite. Victims of domestic violence will now be able to not only cover themselves, but also their pets, under protective orders. Victims have said this is important because they often have to leave pets behind when fleeing violence and their abusers may threaten to kill or injure the pet. SB 279


Contact your local Bryan|College Station DWI defense attorney for questions about these changes in the law. 

The Weakness of Police Lineups

A recent New Jersey Supreme Court case may change the rules for how juries (and judges) treat evidence from police lineups. The Court's decision applied many years of eye-witness identification research showing that eye-witness procedures are flawed and can result in mis-identifications. The decision went on to attached consequences for police, and other law enforcement, who fail to take necessary precautions to reduce the subtle pressures applied to eye-witnesses to make an identification. Such pressures often result in mistaken identifications, which send innocent people to prison. The most important aspect of the research mandated two practices: First, that lineups are blinded and administered by someone who is not familiar with the suspect and who is not one of the primary investigators on the case; and second, photo arrays should be presented sequentially rather than as a group. Both practices, studies find, decrease the pressure on witnesses to pick someone and guard against influence.

Performance Guidelines in Criminal Cases (2)

Last week we saw that the State Bar Board of Directors adopted the "Performance Guidelines for Non-Capital Criminal Defense Representation" early in 2011. The Guidelines provided a standardized "how to" of potential courses of action and best practices for every stage of a Texas state criminal proceeding. That is, from arrest through direct appeal. The Guidelines were detailed. However, they were not designed to micromanage the competent defense of a criminal case. Rather, the Guidelines created a framework through which criminal defense attorneys could deftly exercise their professional judgment. And just as importantly, the Guidelines were not designed as disciplinary rules. They were not designed as hard-line standards of practice when evaluating ineffective assistance of counsel claims. Instead, the Guidelines were a compilation of tools for use by defense attorneys, judges, and county officials to improve our criminal justice system.

Performance Guidelines in Criminal Cases

Criminal defense lawyers face unique problems and challenges. The criminal law is complex. Criminal procedure is complex. Every case presents legal and factual problems that can only be solved through time, effort, and expense. Unlike prosecutors, court-appointed defense lawyers have no easy access to investigators, experts, or even the fact witnesses.

The State Bar Board of Directors adopted the "Performance Guidelines for Non-Capital Criminal Defense Representation" in January 2011. The Guidelines are a step-by-step guide to what lawyers should do in defending criminal cases. They remind attorneys that certain actions should be considered in every case regardless of the funding issues, or problems in local practice. Similarly, the Guidelines remind judges and county officials that lawyers have work to do and steps to take and that defenders must be paid no matter how constrained counties feel about their budgets.

The right to counsel is the most basic guarantee of our criminal justice system. Without a good lawyer, innocent citizens may be convicted of crimes they did not commit and people who need another chance may never get one. The Guidelines encourage defense lawyers to perform to a high standard of representation and to promote professionalism in the representation of persons accused of crime.