On Monday, the Court of Criminal Appeals stayed the execution of Blaine Milam. The Court granted the stay due to questions on about the reliability of bite mark evidence and to determine whether Mr. Milam's intellectual disability makes him ineligible for execution.
Monday's stay is the first since death penalty opponent Elsa Alcala left the bench. Her replacement, the newly elected Michelle Slaughter, along with Sharon "Killer" Keller and Kevin Yeary, voted against the stay.
Somehow it's no surprise that Judge Slaughter, whose only apparent qualification for the Court would seem to be the R after her name, has already cozied up to Judge Keller who is best known for closing the clerk's office to prevent an appeal from being filed in a death penalty case. Judge Slaughter's claim to fame is being required to take a class on the ethical use of social media after she commented about an ongoing case on social media. A mistrial was declared and the defendant was later acquitted.
Showing posts with label ethics. Show all posts
Showing posts with label ethics. Show all posts
Tuesday, January 15, 2019
Friday, November 16, 2018
Walking that fine line
On the day after Christmas in 2009, Albert James Turner went to the home of his in-laws in Fort Bend County and killed his wife and mother-in-law. Two of the couple's four children witnessed the killings and called the police. After a two-and-a-half month long manhunt, Mr. Turner was found in North Carolina. He was brought back to Texas to stand trial for capital murder.
Prior to trial, Mr. Turner's original attorney asked the court to conduct a competency evaluation. Over the course of the next several months, Mr. Turner was examined by three evaluators, a psychologist, a psychiatrist and a neuro-psychologist. All three found that Mr. Turner was competent to stand trial.
After parting ways with his first attorney, two new attorneys were appointed to represent Mr. Turner. The new attorneys were concerned that Mr. Turner's mental condition had deteriorated since the first evaluation and requested a formal competency hearing. The court agreed to another evaluation and appointed a clinical psychologist to perform the examination. The determination was the same, Mr.
Turner was competent to stand trial.
In 2011, Mr. Turner went to trial. His attorneys told him that the state was seeking the death penalty and that the best way to avoid it was to admit to the killings but to argue that he killed his wife in a fit of passion and that he didn't intend to kill his mother-in-law. The hope was to convince the jury that he was not guilty of capital murder because the second killing was unintentional.
In his opening statement, one of Mr. Turner's attorneys told the jury that Mr. Turner had killed his wife in a fit of rage but that he had never intended to kill his mother-in-law. He also told the jury that Mr. Turner was unable to help himself by admitting his guilt. Mr.Turner was very much opposed to this strategy. Mr. Turner insisted on taking the stand and told the jury that the murders had been committed by, or on behalf of, the mayor of Kendleton (TX), who was having an affair with his wife. Mr. Turner claimed that his two children were mistaken in telling the police that he had killed the two women.
Defense counsel once again told the jury during closing argument that Mr. Turner had killed the women but that he hadn't committed capital murder because the second killing was unintentional. Unfortunately the trial court had denied the attorney's request for the lesser included offenses of murder, felony murder and manslaughter to be included in the charge.
Faced with a choice between guilty and innocent, the jury convicted Mr. Turner and sentenced him to death.
On appeal the Court of Criminal Appeals ordered the trial court to conduct a retrospective competency hearing - despite defense counsels' objection that Mr. Tuner wasn't competent enough for the hearing. Mr. Turner did not attend the hearing by his choice though the hearing was beamed in on a tv monitor and he had the means to communicate privately with his attorneys. The hearing was held and (surprise, surprise), a jury found that Mr. Turner was competent during the time of his murder trial.
The Court of Criminal Appeals then considered Mr. Turner's second direct appeal. The focus was on whether the US Supreme Court's ruling in McCoy v. Louisiana, 138 S.Ct. 1500 (2018) was applicable in Mr. Turner's case. In both cases defense attorneys advised their clients that conceding guilt at trial was the only way to avoid the death penalty if convicted. In both cases the attorneys conceded their clients' guilt to the jury. In both cases the defendants took the stand, denied killing anyone and concocting a conspiracy to explain how they were charged. And, in both cases the defendants were convicted of capital murder and sentenced to death.
The Court of Criminal Appeals held that while trial strategy is the responsibility of counsel, a defendant has the absolute right to insist on his innocence (as well as his right to testify on his behalf). The Court said that maintaining one's innocence is the object of representation and not just a trial tactic.
The case was remanded for a new trial.
But, as with McCoy, this case does present the question of what should an attorney do when his or her client wants to shoot themselves in the foot? Mr. Turner's attorneys were two of the most experienced and qualified attorneys you could hope to represent you in a capital murder case. They knew what the odds were that Mr. Turner would be convicted and condemned. They told him this case was about saving his life, not convincing a jury he was innocent. Of course in McCoy the defense attorney screwed up and, in essence, laid a red carpet for the jury to sentence his client to death. In this case the attorneys set out on a strategy that was foiled by the trial court's decision not to put lesser included offenses in the jury charge.
It is sometimes a very fine ledge we walk across.
Prior to trial, Mr. Turner's original attorney asked the court to conduct a competency evaluation. Over the course of the next several months, Mr. Turner was examined by three evaluators, a psychologist, a psychiatrist and a neuro-psychologist. All three found that Mr. Turner was competent to stand trial.
After parting ways with his first attorney, two new attorneys were appointed to represent Mr. Turner. The new attorneys were concerned that Mr. Turner's mental condition had deteriorated since the first evaluation and requested a formal competency hearing. The court agreed to another evaluation and appointed a clinical psychologist to perform the examination. The determination was the same, Mr.
Turner was competent to stand trial.
In 2011, Mr. Turner went to trial. His attorneys told him that the state was seeking the death penalty and that the best way to avoid it was to admit to the killings but to argue that he killed his wife in a fit of passion and that he didn't intend to kill his mother-in-law. The hope was to convince the jury that he was not guilty of capital murder because the second killing was unintentional.
In his opening statement, one of Mr. Turner's attorneys told the jury that Mr. Turner had killed his wife in a fit of rage but that he had never intended to kill his mother-in-law. He also told the jury that Mr. Turner was unable to help himself by admitting his guilt. Mr.Turner was very much opposed to this strategy. Mr. Turner insisted on taking the stand and told the jury that the murders had been committed by, or on behalf of, the mayor of Kendleton (TX), who was having an affair with his wife. Mr. Turner claimed that his two children were mistaken in telling the police that he had killed the two women.
Defense counsel once again told the jury during closing argument that Mr. Turner had killed the women but that he hadn't committed capital murder because the second killing was unintentional. Unfortunately the trial court had denied the attorney's request for the lesser included offenses of murder, felony murder and manslaughter to be included in the charge.
Faced with a choice between guilty and innocent, the jury convicted Mr. Turner and sentenced him to death.
On appeal the Court of Criminal Appeals ordered the trial court to conduct a retrospective competency hearing - despite defense counsels' objection that Mr. Tuner wasn't competent enough for the hearing. Mr. Turner did not attend the hearing by his choice though the hearing was beamed in on a tv monitor and he had the means to communicate privately with his attorneys. The hearing was held and (surprise, surprise), a jury found that Mr. Turner was competent during the time of his murder trial.
The Court of Criminal Appeals then considered Mr. Turner's second direct appeal. The focus was on whether the US Supreme Court's ruling in McCoy v. Louisiana, 138 S.Ct. 1500 (2018) was applicable in Mr. Turner's case. In both cases defense attorneys advised their clients that conceding guilt at trial was the only way to avoid the death penalty if convicted. In both cases the attorneys conceded their clients' guilt to the jury. In both cases the defendants took the stand, denied killing anyone and concocting a conspiracy to explain how they were charged. And, in both cases the defendants were convicted of capital murder and sentenced to death.
The Court of Criminal Appeals held that while trial strategy is the responsibility of counsel, a defendant has the absolute right to insist on his innocence (as well as his right to testify on his behalf). The Court said that maintaining one's innocence is the object of representation and not just a trial tactic.
The case was remanded for a new trial.
But, as with McCoy, this case does present the question of what should an attorney do when his or her client wants to shoot themselves in the foot? Mr. Turner's attorneys were two of the most experienced and qualified attorneys you could hope to represent you in a capital murder case. They knew what the odds were that Mr. Turner would be convicted and condemned. They told him this case was about saving his life, not convincing a jury he was innocent. Of course in McCoy the defense attorney screwed up and, in essence, laid a red carpet for the jury to sentence his client to death. In this case the attorneys set out on a strategy that was foiled by the trial court's decision not to put lesser included offenses in the jury charge.
It is sometimes a very fine ledge we walk across.
Tuesday, September 11, 2018
Just spitballing here
Had a very interesting conversation with a relatively new prosecutor yesterday. We were discussing a case on the trial docket and he was suggesting my client consider a pretrial intervention. I told him I had some questions about the legitimacy of the stop that ended in my client's arrest. He told me he thought the stop was okay and that, should my client be convicted, that she would get a longer sentence than the 12 months she'd be in the pretrial diversion program.
Then he told me that they (and I don't know if he was referring just to the prosecutors or if he was including the judge in this) wanted longer sentences on convictions than what were being offered on plea deals. He said that otherwise there would be no incentive for defendants to plead. Now the conversation was getting interesting. I threw out a casual warning that he might not want to say anymore on the subject.
What he told me, without realizing it, is that the Harris County District Attorney's Office has a policy to discourage defendants from exercising their right to a jury trial. We all know that prosecutors do this -- the "trial tax" is regularly invoked during the punishment phase of the trial. But I've never had anyone tell me that people sat down and had formal discussions about it.
Now let's look at this revelation in a bit more detail. In just about every misdemeanor case, the prosecutor handling the case writes an offer down on the case file. And the offers are fairly standard and rarely come as a surprise. The only variations occur when there is some aggravating factor or prior conviction. On a second DWI the initial offer is generally the same as the maximum punishment the defendant can receive -- therefore giving the defendant no reason to consider the plea.
But here's the problem. A prosecutor has an ethical duty to see that "justice is done." But is justice being served when a defendant is punished for exercising his or her right to a jury trial? Are we saying that no consideration should be given to the circumstance in which there are facts that are genuinely in dispute in a criminal prosecution?
Courts exist to resolve disputes. We resolve disputes by conducting a trial. There are plenty of cases in which there can be a question of whether or not the prosecutor can prove up his or her case beyond a reasonable doubt. But should the defendant automatically receive additional punishment because he or she stood up and demanded that the prosecutor meet the state's burden of proof?
I know that prosecutors want to resolve the vast majority of cases through plea agreements. I know that judges love it when 90% of the cases in their courts are resolved without the need of a trial. I also know that people plead guilty when they insist they are innocent because they don't want to chance a more severe punishment if they exercise their right to a jury trial.
There are cases that get tried because the defense believes the state's offer is outrageous. There are cases that get tried because even if the defendant is convicted, he can't get any worse than what was offered prior to trial. There are cases that get tried because the defendant insists he or she isn't guilty and won't accept any offer. Finally, there are cases that get tried because there is a question of whether the state can meet its burden of proof.
These are all legitimate reasons to take a case to a jury. No defendant should be punished more severely because their case fell into one of these categories. A formal policy of punishing a defendant who chose to go to trial more severely than a defendant who entered a guilty plea does not ensure that justice is done. It ensures that a person's right to have a jury of their peers determine whether or not the state proved its case beyond a reasonable doubt is eroded to the point of being meaningless.
Then he told me that they (and I don't know if he was referring just to the prosecutors or if he was including the judge in this) wanted longer sentences on convictions than what were being offered on plea deals. He said that otherwise there would be no incentive for defendants to plead. Now the conversation was getting interesting. I threw out a casual warning that he might not want to say anymore on the subject.
What he told me, without realizing it, is that the Harris County District Attorney's Office has a policy to discourage defendants from exercising their right to a jury trial. We all know that prosecutors do this -- the "trial tax" is regularly invoked during the punishment phase of the trial. But I've never had anyone tell me that people sat down and had formal discussions about it.
Now let's look at this revelation in a bit more detail. In just about every misdemeanor case, the prosecutor handling the case writes an offer down on the case file. And the offers are fairly standard and rarely come as a surprise. The only variations occur when there is some aggravating factor or prior conviction. On a second DWI the initial offer is generally the same as the maximum punishment the defendant can receive -- therefore giving the defendant no reason to consider the plea.
But here's the problem. A prosecutor has an ethical duty to see that "justice is done." But is justice being served when a defendant is punished for exercising his or her right to a jury trial? Are we saying that no consideration should be given to the circumstance in which there are facts that are genuinely in dispute in a criminal prosecution?
Courts exist to resolve disputes. We resolve disputes by conducting a trial. There are plenty of cases in which there can be a question of whether or not the prosecutor can prove up his or her case beyond a reasonable doubt. But should the defendant automatically receive additional punishment because he or she stood up and demanded that the prosecutor meet the state's burden of proof?
I know that prosecutors want to resolve the vast majority of cases through plea agreements. I know that judges love it when 90% of the cases in their courts are resolved without the need of a trial. I also know that people plead guilty when they insist they are innocent because they don't want to chance a more severe punishment if they exercise their right to a jury trial.
There are cases that get tried because the defense believes the state's offer is outrageous. There are cases that get tried because even if the defendant is convicted, he can't get any worse than what was offered prior to trial. There are cases that get tried because the defendant insists he or she isn't guilty and won't accept any offer. Finally, there are cases that get tried because there is a question of whether the state can meet its burden of proof.
These are all legitimate reasons to take a case to a jury. No defendant should be punished more severely because their case fell into one of these categories. A formal policy of punishing a defendant who chose to go to trial more severely than a defendant who entered a guilty plea does not ensure that justice is done. It ensures that a person's right to have a jury of their peers determine whether or not the state proved its case beyond a reasonable doubt is eroded to the point of being meaningless.
Monday, June 18, 2018
The problem with proving the unknown
In an article for The Intercept last week, Jordan Smith hit upon the ultimate problem with prosecutorial misconduct -- proving it is damn near impossible with imperfect information.
Prosecutors have an ethical duty to see that justice is done, not to win convictions at trial. Prosecutors also have a legal duty to hand over any exculpatory evidence to the defense. The problem with Brady material is that the state has it and the defense doesn't. And given the imperfect information defense attorneys deal with in preparing for trial, if you don't know about it (or have an inkling about it), it may as well not exist.
The first, and most important, is that some 95% of criminal cases end in plea deals in which the defendant waives his right to appeal in exchange for the promised sentence. In most counties in Texas, at the time of the plea, the defense attorney and the client are both required to sign a document indicating that they received all the discovery they were entitled to and and that the state is under no further obligation to provide discovery material on that case in the future.
While defense attorneys have access to the state's file in criminal prosecutions in Harris County, we have no way of knowing what's not in the file. In some cases potentially exculpatory evidence is "covered" under the work product privilege. In others, it's simply not disclosed because the prosecutor doesn't deem it to be exculpatory.
In general, once the light has been shown on a systemic issue - either by the press or at trial - that information is conveyed to defense attorneys who are advised to contact their clients and proceed as they choose.
The problem is, the state knew about the issue while the case was pending but chose to say nothing and to disclose nothing so they didn't lose their edge.
Ultimately the only way to bring these matters to light may be taking every case to trial and shining a light on the ways in which prosecutors, police and crime labs gather and process evidence. But that "solution" is certainly a non-starter because many defendants don't want to chance a longer or more severe sentence at trial. Some defendants decide to plead because the financial burden of fighting a case is too much for them. Some give up the ghost because the state has allowed courts to pile so many pre-trial bond conditions on them that they'd rather get credit for it by pleading to probation.
If there is no one in the forest, does the falling tree make a sound? Likewise, has the law been violated if the state chooses not to disclose exculpatory evidence when no one else knows its exists? On the one hand, the answer is clearly yes. But, on the other hand, if you can't prove it existed what are you going to do about it?
Prosecutors have an ethical duty to see that justice is done, not to win convictions at trial. Prosecutors also have a legal duty to hand over any exculpatory evidence to the defense. The problem with Brady material is that the state has it and the defense doesn't. And given the imperfect information defense attorneys deal with in preparing for trial, if you don't know about it (or have an inkling about it), it may as well not exist.
When it was his turn to speak, [Shannon] Edmonds applauded [Stacey] Soule’s findings. “Having information like this is great,” he told the committee, in part because when it comes to prosecutorial misconduct (and ineffective assistance), there is often “more heat than light.” A lot of people “bang the tables about these problems and claim they are epidemic. And those claims don’t always hold up to scrutiny.” If you search online for “prosecutorial misconduct,” he said, you’ll find a lot of complaints and “supposed data that is rarely independently scrutinized” the way Soule had done.As Ms. Smith points out in her article, the problem with using an analysis of Court of Criminal Appeals opinions as the basis for your thesis is that most instances of prosectutorial misconduct don't make it up the chain for a variety of reasons.
The first, and most important, is that some 95% of criminal cases end in plea deals in which the defendant waives his right to appeal in exchange for the promised sentence. In most counties in Texas, at the time of the plea, the defense attorney and the client are both required to sign a document indicating that they received all the discovery they were entitled to and and that the state is under no further obligation to provide discovery material on that case in the future.
While defense attorneys have access to the state's file in criminal prosecutions in Harris County, we have no way of knowing what's not in the file. In some cases potentially exculpatory evidence is "covered" under the work product privilege. In others, it's simply not disclosed because the prosecutor doesn't deem it to be exculpatory.
In general, once the light has been shown on a systemic issue - either by the press or at trial - that information is conveyed to defense attorneys who are advised to contact their clients and proceed as they choose.
The problem is, the state knew about the issue while the case was pending but chose to say nothing and to disclose nothing so they didn't lose their edge.
Ultimately the only way to bring these matters to light may be taking every case to trial and shining a light on the ways in which prosecutors, police and crime labs gather and process evidence. But that "solution" is certainly a non-starter because many defendants don't want to chance a longer or more severe sentence at trial. Some defendants decide to plead because the financial burden of fighting a case is too much for them. Some give up the ghost because the state has allowed courts to pile so many pre-trial bond conditions on them that they'd rather get credit for it by pleading to probation.
If there is no one in the forest, does the falling tree make a sound? Likewise, has the law been violated if the state chooses not to disclose exculpatory evidence when no one else knows its exists? On the one hand, the answer is clearly yes. But, on the other hand, if you can't prove it existed what are you going to do about it?
Wednesday, June 13, 2018
Harris County Chief Public Defender under fire
Alex Brunin is the Chief Public Defender for Harris County. His clientele consists of those who haven't the money to hire an attorney to defend themselves in criminal court.
He is now being accused by Steve Radack, a Harris County Commissioner, of leaking confidential records to attorneys fighting the county on the way bonds are set for defendants. Prior to Federal District Judge Lee Rosenthal's finding that both the misdemeanor and felony bond schedules were unconstitutional as they did not take into account a defendant's ability to pay, a magistrate would ask the prosecutor what the defendant was charged with, whether there were any enhancements and whether the defendant had a prior record. Based on the answers to the those questions, the magistrate traced his or her finger on a chart and set the defendant's bond.
The result was that almost three-quarters of the people held in the Harris County Jail on any given day hadn't been convicted and were awaiting resolution of their cases. That is a mind-blowing number. And totally fucked up.
As head of the Public Defender's Office, Alex Bunin finds himself caught between a rock and a hard place. The office is funded by a grant. And, as I know I've written before, once that grant money starts to run out the case loads for everyone in the office will rise as will the pressure to plead out defendants. Mr. Bunin knows he will get no favors from Commissioner's Court. He's a thorn in the side of those who want to return to the days of the plea mill.
His position depends upon the whims of politicians from outside the Houston city limits - in other words, politicians who represent wealthy white suburbanites who want nothing to do with guaranteeing the constitutional rights of those accused of crime. Mr. Bunin has little or no political capital as indigent defendants don't have a voice in Harris County politics.
Make no mistake about it, this isn't about whether or not Mr. Bunin passed on information, confidential or otherwise, to attorneys fighting about the Harris County bond schedule, this is about a man who is doing his best to give voice to those who don't have one. That, in a nutshell, is Alex Bunin's sin. He dared to provide a vigorous defense for those who had nothing.
Thus far Harris County has spent in the neighborhood of $6 million fighting to preserve a bail system that a conservative federal judge and the most conservative appellate court have found to be unconstitutional. And yet the county continues to fight to preserve a system that led to coerced mass pleas.
Two judges, Mike Fields and Darrell Jordan, have urged the county to drop the fight and to work on finding a solution. Thus far their words have fallen on deaf ears.
But now Mr. Radack has a scapegoat. Instead of defending the money spent on defending the indefensible, he can hold Alex Bunin up to the conservative mates and blame him for the lawsuit and the changes to the bail system. But there's even more to it.
If Mr. Radack and his cabal can get rid of Alex Bunin they can replace him with someone who isn't as committed to defending the indigent. He can install someone who is more interested in the appearance of "fairness" than in actual reform. He can install someone who will be more than happy to carry his water bucket, increase case loads and pressure his staff to plead more cases out.
After a testy meeting yesterday, Mr. Bunin wasn't fired, but the matter was referred to the county public defender board for further recommendation. As was to be expected, the county commissioners who represented mostly white suburbanites were most critical of Mr. Bunin's actions.
And that's what this is ultimately all about -- a return to the days when court-appointed attorneys were more than happy to team up with the judge and prosecutor to work cases out without much effort or cost.
He is now being accused by Steve Radack, a Harris County Commissioner, of leaking confidential records to attorneys fighting the county on the way bonds are set for defendants. Prior to Federal District Judge Lee Rosenthal's finding that both the misdemeanor and felony bond schedules were unconstitutional as they did not take into account a defendant's ability to pay, a magistrate would ask the prosecutor what the defendant was charged with, whether there were any enhancements and whether the defendant had a prior record. Based on the answers to the those questions, the magistrate traced his or her finger on a chart and set the defendant's bond.
The result was that almost three-quarters of the people held in the Harris County Jail on any given day hadn't been convicted and were awaiting resolution of their cases. That is a mind-blowing number. And totally fucked up.
As head of the Public Defender's Office, Alex Bunin finds himself caught between a rock and a hard place. The office is funded by a grant. And, as I know I've written before, once that grant money starts to run out the case loads for everyone in the office will rise as will the pressure to plead out defendants. Mr. Bunin knows he will get no favors from Commissioner's Court. He's a thorn in the side of those who want to return to the days of the plea mill.
His position depends upon the whims of politicians from outside the Houston city limits - in other words, politicians who represent wealthy white suburbanites who want nothing to do with guaranteeing the constitutional rights of those accused of crime. Mr. Bunin has little or no political capital as indigent defendants don't have a voice in Harris County politics.
Make no mistake about it, this isn't about whether or not Mr. Bunin passed on information, confidential or otherwise, to attorneys fighting about the Harris County bond schedule, this is about a man who is doing his best to give voice to those who don't have one. That, in a nutshell, is Alex Bunin's sin. He dared to provide a vigorous defense for those who had nothing.
Thus far Harris County has spent in the neighborhood of $6 million fighting to preserve a bail system that a conservative federal judge and the most conservative appellate court have found to be unconstitutional. And yet the county continues to fight to preserve a system that led to coerced mass pleas.
Two judges, Mike Fields and Darrell Jordan, have urged the county to drop the fight and to work on finding a solution. Thus far their words have fallen on deaf ears.
But now Mr. Radack has a scapegoat. Instead of defending the money spent on defending the indefensible, he can hold Alex Bunin up to the conservative mates and blame him for the lawsuit and the changes to the bail system. But there's even more to it.
If Mr. Radack and his cabal can get rid of Alex Bunin they can replace him with someone who isn't as committed to defending the indigent. He can install someone who is more interested in the appearance of "fairness" than in actual reform. He can install someone who will be more than happy to carry his water bucket, increase case loads and pressure his staff to plead more cases out.
After a testy meeting yesterday, Mr. Bunin wasn't fired, but the matter was referred to the county public defender board for further recommendation. As was to be expected, the county commissioners who represented mostly white suburbanites were most critical of Mr. Bunin's actions.
And that's what this is ultimately all about -- a return to the days when court-appointed attorneys were more than happy to team up with the judge and prosecutor to work cases out without much effort or cost.
Wednesday, April 25, 2018
Shining a light on judicial abuse
There's just something about putting on that black polyester robe that brings out the worst in some people. Broward County (FL) Judge Merrillee Ehrlich is just the latest example of black robe syndrome.
On April 15, 2018, the target of her ire was Sandra Faye Twiggs, a 59 year-old disabled defendant arrested on a misdemeanor charge. During the arraignment, Judge Ehrlich asked Ms. Twiggs some questions about the charge. When Ms. Twiggs tried to answer, Judge Ehrlich cut her off repeatedly and berated her.
When Ms. Twiggs complained about having problems breathing due to her COPD, Judge Ehrlich wasn't having any of it. And why was her attorney on video and not present in the courtroom? How does one exercise her right to counsel when the attorney isn't in the courtroom with her? Does the absence of attorneys have anything to do with the judge's belief that she can unload on defendants at will?
Ms. Twiggs were released from the county jail two days later on April 17. She died the next day.
Judge Ehrlich has since resigned from the bench without giving a reason why.
Just how out of the ordinary is what happened in that Broward County courtroom? How many defendants are yelled at by judges on a daily basis? How many defendants are treated in a callous manner without regard for their health or other issues?
The only reason we know about Judge Ehrlich's conniption fit is because the proceedings were recorded with a video camera. How much of this goes on across the country in courtrooms where recording equipment is banned?
I've seen judges berate defendants. The judges did so with impunity because they knew there was no record of the way in which they treated those accused of breaking the law. They knew that if it ever came to a head that deference would be shown to the person wearing the polyester robe long before it would ever be afforded to the defendant.
Allowing cameras unfettered access to the courtroom might not be the best idea, however. What about those folks sitting in the courtroom - accused of a crime but presumed innocent under the law? They have a right not to be photographed in the courtroom.
Then we have the open courts provisions in the Texas Constitution. A courtroom is supposed to remain open to the public - notwithstanding attempts by judges and bailiffs to remove those who aren't on the docket from the courtroom every morning and afternoon. Should we place a fixed mount camera in every courtroom focused on the bench and those standing before the court?
However we come down on those questions, it is undeniable that light is the great disinfectant. With the exception of "reality" television, the presence of a camera seems to make everyone behave just a little bit better and pay just a little more attention to social mores.
But for a camera, Judge Ehrlich would be free to continue her reign of abuse.
On April 15, 2018, the target of her ire was Sandra Faye Twiggs, a 59 year-old disabled defendant arrested on a misdemeanor charge. During the arraignment, Judge Ehrlich asked Ms. Twiggs some questions about the charge. When Ms. Twiggs tried to answer, Judge Ehrlich cut her off repeatedly and berated her.
When Ms. Twiggs complained about having problems breathing due to her COPD, Judge Ehrlich wasn't having any of it. And why was her attorney on video and not present in the courtroom? How does one exercise her right to counsel when the attorney isn't in the courtroom with her? Does the absence of attorneys have anything to do with the judge's belief that she can unload on defendants at will?
Ms. Twiggs were released from the county jail two days later on April 17. She died the next day.
Judge Ehrlich has since resigned from the bench without giving a reason why.
Just how out of the ordinary is what happened in that Broward County courtroom? How many defendants are yelled at by judges on a daily basis? How many defendants are treated in a callous manner without regard for their health or other issues?
The only reason we know about Judge Ehrlich's conniption fit is because the proceedings were recorded with a video camera. How much of this goes on across the country in courtrooms where recording equipment is banned?
I've seen judges berate defendants. The judges did so with impunity because they knew there was no record of the way in which they treated those accused of breaking the law. They knew that if it ever came to a head that deference would be shown to the person wearing the polyester robe long before it would ever be afforded to the defendant.
Allowing cameras unfettered access to the courtroom might not be the best idea, however. What about those folks sitting in the courtroom - accused of a crime but presumed innocent under the law? They have a right not to be photographed in the courtroom.
Then we have the open courts provisions in the Texas Constitution. A courtroom is supposed to remain open to the public - notwithstanding attempts by judges and bailiffs to remove those who aren't on the docket from the courtroom every morning and afternoon. Should we place a fixed mount camera in every courtroom focused on the bench and those standing before the court?
However we come down on those questions, it is undeniable that light is the great disinfectant. With the exception of "reality" television, the presence of a camera seems to make everyone behave just a little bit better and pay just a little more attention to social mores.
But for a camera, Judge Ehrlich would be free to continue her reign of abuse.
Friday, March 16, 2018
Consequences, what consequences?
Alfred Brown spent a decade of his life on death row in Texas before he was exonerated by phone records found in a detective's garage in 2013. What makes this tale more chilling is the fact that the prosecutor who sought the death penalty in Mr. Brown's 2005 trial for the murder of Houston Police Officer Charles Clark and store clerk Alfredia Jones was made aware of the phone records prior to trial.
The prosecutor, Dan Rizzo, is now retired.
In 2003, then HPD Officer Breck McDaniel sent Mr. Rizzo an e-mail regarding the telephone records. But neither the e-mail nor the records were produced prior to trial.
After the discovery of the records, the Harris County District Attorney's Office claimed that the failure of the prosecutor to turn over the phone records was inadvertent.
The phone records were important because they corroborated Mr. Brown's alibi that he was at his girlfriend's house at the time of the slayings.
The e-mail to Mr. Rizzo was discovered after Mr. Brown filed suit seeking compensation for his time behind bars as the result of a wrongful conviction. The State of Texas denied him compensation because prosecutors didn't declare him to be actually innocent.
Mr. Rizzo signed an affidavit in 2008 stating that he had not withheld any of the requested phone records from the defense.
The Harris County Criminal Lawyers' Association (of which I am a member) has sent Harris County District Attorney Kim Ogg a letter requesting that a special prosecutor investigate whether or not Mr. Rizzo committed any criminal violations in his failure to produce the records and subsequent denials of their existence.
Some defense attorneys have suggested that Mr. Rizzo face a charge of attempted murder - though former District Attorney Johnny Holmes and Northeastern University law professor Daniel Medwed think that attempted murder would be a stretch.
Well, let's look at that for a bit, shall we?
According to Section 19.02(b) of the Texas Penal Code, the murder statute:
Mr. Rizzo sought the death penalty for Mr. Brown. He asked the jury to sentence Mr. Brown to die. Being strapped down on a gurney while being pumped full of poison would qualify as an "act clearly dangerous to human life."
According to Section 15.01 of the Texas Penal Code:
As I have pointed out numerous times on this blog, a defense lawyer's ethical duty is to provide the best defense he can for his client. His job is to try to win the case - or at least limit the damage to his client. A prosecutor, on the other hand, has an ethical duty to see that justice is done. Mr. Rizzo was trying to win his case. He wasn't interested is seeing that justice was done. He was only interested in obtaining a guilty verdict and a sentence of death.
Mr. Rizzo violated his ethical duties by failing to turn over the phone records. As for attempted murder, if the shoe fits...
Here is the letter from HCCLA President Tucker Graves to Harris County DA Kim Ogg:
The prosecutor, Dan Rizzo, is now retired.
In 2003, then HPD Officer Breck McDaniel sent Mr. Rizzo an e-mail regarding the telephone records. But neither the e-mail nor the records were produced prior to trial.
After the discovery of the records, the Harris County District Attorney's Office claimed that the failure of the prosecutor to turn over the phone records was inadvertent.
The phone records were important because they corroborated Mr. Brown's alibi that he was at his girlfriend's house at the time of the slayings.
The e-mail to Mr. Rizzo was discovered after Mr. Brown filed suit seeking compensation for his time behind bars as the result of a wrongful conviction. The State of Texas denied him compensation because prosecutors didn't declare him to be actually innocent.
Mr. Rizzo signed an affidavit in 2008 stating that he had not withheld any of the requested phone records from the defense.
The Harris County Criminal Lawyers' Association (of which I am a member) has sent Harris County District Attorney Kim Ogg a letter requesting that a special prosecutor investigate whether or not Mr. Rizzo committed any criminal violations in his failure to produce the records and subsequent denials of their existence.
Some defense attorneys have suggested that Mr. Rizzo face a charge of attempted murder - though former District Attorney Johnny Holmes and Northeastern University law professor Daniel Medwed think that attempted murder would be a stretch.
Well, let's look at that for a bit, shall we?
According to Section 19.02(b) of the Texas Penal Code, the murder statute:
(b) A person commits an offense if he:(1) intentionally or knowingly causes the death of an individual;(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.The death certificate of an executed inmate lists homicide as the manner of death. That is murder.
Mr. Rizzo sought the death penalty for Mr. Brown. He asked the jury to sentence Mr. Brown to die. Being strapped down on a gurney while being pumped full of poison would qualify as an "act clearly dangerous to human life."
According to Section 15.01 of the Texas Penal Code:
(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.We already know that Mr. Rizzo wanted Alfred Brown to be condemned to die. He tried the case and he asked the jury to return a death sentence. He also failed to turn over the phone records to the defense prior to trial despite having been told of the existence of those records. His failure to produce the records led to the guilty verdict as there was no corroboration of Mr. Brown's alibi without the records.
As I have pointed out numerous times on this blog, a defense lawyer's ethical duty is to provide the best defense he can for his client. His job is to try to win the case - or at least limit the damage to his client. A prosecutor, on the other hand, has an ethical duty to see that justice is done. Mr. Rizzo was trying to win his case. He wasn't interested is seeing that justice was done. He was only interested in obtaining a guilty verdict and a sentence of death.
Mr. Rizzo violated his ethical duties by failing to turn over the phone records. As for attempted murder, if the shoe fits...
Here is the letter from HCCLA President Tucker Graves to Harris County DA Kim Ogg:
Rizzo-3-12-18 by Paul B. Kennedy on Scribd
Wednesday, March 14, 2018
On schemes, whistles and influence-peddling
Poor Jeffrey Wertkin. He had it tough.
He left his job as an attorney with the Justice Department and took a gig with Akin Gump for a cool $450,000 a year. He didn't feel it was enough.
Even though he'd be making three times what he made at the DOJ dealing with whistle-blower suits, his pay would have been on the low end of what partners were making at the time.
And, you know, he's probably right. Akin Gump wasn't paying him $450,000 a year for his brilliant legal mind or his courtroom skills. They were paying him because having a former fed in the firm is good for business. Akin Gump figured that that alone would be enough to get current clients to fork over more money in monthly retainers and to get some new business on board.
But nevermind that. Let's get back to poor little Jeffrey.
He hatched a plan to put more money in his pocket.
His plan was to steal secret whistle-blower suits and sell them back to the companies named in the suits. There were qui tam suits in which a private citizen files suit, on behalf of the government, alleging that a contractor has defrauded the government. In a qui tam suit, the government litigates the suit and the citizen who brought the suit gets a cut of the recovery. These suits are filed under seal and sent to the DOJ for review. The company only finds out they're the target of the suit once it's made public.
Mr. Wertkins idea was to extort money from the targets of the suit in exchange for the sealed documents. I know you're asking yourself, what could possibly go wrong with this scheme.
What went wrong is the feds figured out what was going on. I suspect one of the targeted companies called up the DOJ to ask them what was going on and then one thing led to another.
In the end, Mr. Wertkins was taken into custody in a hotel room wearing sunglasses and a wig and waiting for his money.
When asked why he did it, Mr. Wertkins told the court that he felt under a tremendous amount of pressure to perform for his new employer at a salary that he just didn't think was adequate for his experience and know how. But, then again, no one put a gun to his head and told him to leave his government job for a position as a partner in an actual law firm.
Mr. Wertkins pleaded guilty and was sentenced to 2 1/2 years in prison. His wife asked the judge if he could avoid prison and just go around to law schools and tell students about his tale of woe. I guess the judge thanked her for her input and just said no.
While the saga of Mr. Wertkins may be amusing to some and might serve as a warning for other less scrupulous attorneys, one thing it highlights is the revolving door in government. White shoe law firms and lobbying firms right over the privilege of hiring attorneys and other government officials when they decide they've had enough of the long hours and low pay that defines government work. These firms then advertise to their existing clients and their potential clients that they have yet another connection to a government agency.
These connections are the lifeblood of these firms and they are the tools by which companies, advocacy groups and others try to influence legislation in ways that help their bottom lines. This is where democracy is undermined.
h/t@CJMcKinney
He left his job as an attorney with the Justice Department and took a gig with Akin Gump for a cool $450,000 a year. He didn't feel it was enough.
Even though he'd be making three times what he made at the DOJ dealing with whistle-blower suits, his pay would have been on the low end of what partners were making at the time.
And, you know, he's probably right. Akin Gump wasn't paying him $450,000 a year for his brilliant legal mind or his courtroom skills. They were paying him because having a former fed in the firm is good for business. Akin Gump figured that that alone would be enough to get current clients to fork over more money in monthly retainers and to get some new business on board.
But nevermind that. Let's get back to poor little Jeffrey.
He hatched a plan to put more money in his pocket.
His plan was to steal secret whistle-blower suits and sell them back to the companies named in the suits. There were qui tam suits in which a private citizen files suit, on behalf of the government, alleging that a contractor has defrauded the government. In a qui tam suit, the government litigates the suit and the citizen who brought the suit gets a cut of the recovery. These suits are filed under seal and sent to the DOJ for review. The company only finds out they're the target of the suit once it's made public.
Mr. Wertkins idea was to extort money from the targets of the suit in exchange for the sealed documents. I know you're asking yourself, what could possibly go wrong with this scheme.
What went wrong is the feds figured out what was going on. I suspect one of the targeted companies called up the DOJ to ask them what was going on and then one thing led to another.
In the end, Mr. Wertkins was taken into custody in a hotel room wearing sunglasses and a wig and waiting for his money.
When asked why he did it, Mr. Wertkins told the court that he felt under a tremendous amount of pressure to perform for his new employer at a salary that he just didn't think was adequate for his experience and know how. But, then again, no one put a gun to his head and told him to leave his government job for a position as a partner in an actual law firm.
Mr. Wertkins pleaded guilty and was sentenced to 2 1/2 years in prison. His wife asked the judge if he could avoid prison and just go around to law schools and tell students about his tale of woe. I guess the judge thanked her for her input and just said no.
While the saga of Mr. Wertkins may be amusing to some and might serve as a warning for other less scrupulous attorneys, one thing it highlights is the revolving door in government. White shoe law firms and lobbying firms right over the privilege of hiring attorneys and other government officials when they decide they've had enough of the long hours and low pay that defines government work. These firms then advertise to their existing clients and their potential clients that they have yet another connection to a government agency.
These connections are the lifeblood of these firms and they are the tools by which companies, advocacy groups and others try to influence legislation in ways that help their bottom lines. This is where democracy is undermined.
h/t
Friday, March 9, 2018
Shocking, simply shocking
Judge George Gallagher in Fort Worth, Texas must have an affinity for the Middle Ages. Either that or the Spanish Inquisition.
You see, Judge Gallagher thought it was perfectly acceptable to order a defendant to be shocked with 50,000 volts whenever he gave an answer hizzoner didn't like.
Terry Lee Morris was on trial for soliciting sexual performance from a minor in 2014. On the first day of trial Judge Gallagher asked Mr. Morris for his plea. Mr. Morris objected to the shock collar on his ankle. He also informed the judge that he had a pending lawsuit against both the judge and his attorney, Billy Ray, with regard to the shock collar.
After excusing the jury, Judge Gallagher asked Mr. Morris if he was going to behave during trial. Mr. Morris pointed out that he had filed a motion to recuse the judge. Judge Gallagher then ordered the deputy to shock him. Once again the judge asked Mr. Morris if he was going to behave. Mr. Morris told the judge he was an MHMRA patient and the judge once again ordered the deputy to shock him. The judge kept berating Mr. Morris who accused the judge of torturing him. You can guess what happened next.
Mr. Morris left the courtroom and refused to return and his trial was conducted in his absence. As can be imagined, the jury convicted him and he was sentenced to 60 years in prison.
The Eighth Court of Appeals in El Paso reversed and remanded the case on the grounds that Mr. Morris' 6th Amendment right to be present at trial was violated by the judge's continual use of the shock collar.
Now, I think we can all agree that Judge Gallagher's handling of this matter was inappropriate and wrong. We might even agree that it was a violation of the 8th Amendment's ban on cruel and unusual punishment. It certainly resulted in a violation of Mr. Morris' rights under the 6th Amendment.
But that's not the end of the story. You see, there are more folks complicit in this matter than just the judge.
First we have Mr. Billy Ray who didn't object to the installation of the shock collar on his client. He didn't object - or say anything at all on the record - when the judge ordered his client to be zapped with 50,000 volts three times on the first day of trial. He also stood by and failed to object when the judge ordered the trial to proceed without Mr. Morris in the courtroom.
Mr. Ray's excuse was he was scared of his client. Well boo-fucking-hoo. This is the job you signed up for. We don't all get to defend the white collar criminal from the suburbs who drives the Lexus and sips expensive wine after dinner. We sometimes deal with some pretty nasty folks. But then, anyone who decides to do criminal defense work should be well aware of the nature of the clientele.
Mr. Ray's job at trial was to provide a vigorous defense for his client. That means making damn certain that the deck isn't stacked against him by the state or the court. Sure, the facts may be really bad, but the process needs to be fair. Mr. Ray's job was to make certain that Mr. Morris was afforded every right and courtesy possible during the trial. By standing by and allowing the judge to shock his client, Mr. Ray abdicated his role. By refusing to object to the judge's order to continue the trial without his client, Mr. Ray violated his ethical duties.
To be fair, Mr. Ray did file a motion to withdraw after his client filed suit against him. Judge Gallagher denied the request.
The prosecutor, Ms. Andrea Risinger, also deserves to be castigated in this matter. Under our ethics rules, the prosecutor has a duty to see that justice is done. That means the prosecutor has an affirmative duty to make certain that the process is fair to the defendant. Allowing trial to continue without the presence of the defendant makes a mockery of that duty.
Finally, the bailiff isn't escaping without criticism. Yes, he is supposed to follow the orders of the presiding judge in the courtroom. However, surely the bailiff knew that what he was doing was wrong. He doesn't get to slide by claiming he was just following orders.
You see, Judge Gallagher thought it was perfectly acceptable to order a defendant to be shocked with 50,000 volts whenever he gave an answer hizzoner didn't like.
Terry Lee Morris was on trial for soliciting sexual performance from a minor in 2014. On the first day of trial Judge Gallagher asked Mr. Morris for his plea. Mr. Morris objected to the shock collar on his ankle. He also informed the judge that he had a pending lawsuit against both the judge and his attorney, Billy Ray, with regard to the shock collar.
After excusing the jury, Judge Gallagher asked Mr. Morris if he was going to behave during trial. Mr. Morris pointed out that he had filed a motion to recuse the judge. Judge Gallagher then ordered the deputy to shock him. Once again the judge asked Mr. Morris if he was going to behave. Mr. Morris told the judge he was an MHMRA patient and the judge once again ordered the deputy to shock him. The judge kept berating Mr. Morris who accused the judge of torturing him. You can guess what happened next.
Mr. Morris left the courtroom and refused to return and his trial was conducted in his absence. As can be imagined, the jury convicted him and he was sentenced to 60 years in prison.
The Eighth Court of Appeals in El Paso reversed and remanded the case on the grounds that Mr. Morris' 6th Amendment right to be present at trial was violated by the judge's continual use of the shock collar.
Now, I think we can all agree that Judge Gallagher's handling of this matter was inappropriate and wrong. We might even agree that it was a violation of the 8th Amendment's ban on cruel and unusual punishment. It certainly resulted in a violation of Mr. Morris' rights under the 6th Amendment.
But that's not the end of the story. You see, there are more folks complicit in this matter than just the judge.
First we have Mr. Billy Ray who didn't object to the installation of the shock collar on his client. He didn't object - or say anything at all on the record - when the judge ordered his client to be zapped with 50,000 volts three times on the first day of trial. He also stood by and failed to object when the judge ordered the trial to proceed without Mr. Morris in the courtroom.
Mr. Ray's excuse was he was scared of his client. Well boo-fucking-hoo. This is the job you signed up for. We don't all get to defend the white collar criminal from the suburbs who drives the Lexus and sips expensive wine after dinner. We sometimes deal with some pretty nasty folks. But then, anyone who decides to do criminal defense work should be well aware of the nature of the clientele.
Mr. Ray's job at trial was to provide a vigorous defense for his client. That means making damn certain that the deck isn't stacked against him by the state or the court. Sure, the facts may be really bad, but the process needs to be fair. Mr. Ray's job was to make certain that Mr. Morris was afforded every right and courtesy possible during the trial. By standing by and allowing the judge to shock his client, Mr. Ray abdicated his role. By refusing to object to the judge's order to continue the trial without his client, Mr. Ray violated his ethical duties.
To be fair, Mr. Ray did file a motion to withdraw after his client filed suit against him. Judge Gallagher denied the request.
The prosecutor, Ms. Andrea Risinger, also deserves to be castigated in this matter. Under our ethics rules, the prosecutor has a duty to see that justice is done. That means the prosecutor has an affirmative duty to make certain that the process is fair to the defendant. Allowing trial to continue without the presence of the defendant makes a mockery of that duty.
Finally, the bailiff isn't escaping without criticism. Yes, he is supposed to follow the orders of the presiding judge in the courtroom. However, surely the bailiff knew that what he was doing was wrong. He doesn't get to slide by claiming he was just following orders.
Friday, January 12, 2018
When winning is the only thing
This month's cover story in Slate is about three prosecutors who kept pushing and refusing to give up the fight against men who were proven innocent. The stories and circumstances are all different but the story in each case is equally chilling.
In an adversarial system, both prosecutors and defense attorneys are trying to win their case. The theory (faulty at best) is that through the crucible of a trial, the facts will come out and a jury made up of local citizens will be able to determine whether or not a crime occurred.
Nice in theory - but that's not how it works in real life. In many cases of exoneration there are items with biological material that were never tested. In the end when this evidence was tested the results proved that someone else committed the crime. The items weren't tested in the original proceeding because the defense attorney would be taking a big gamble in having the tests carried out. Let's think about it, we all assume the worse case scenario for our clients. If there is a rag, or a shirt or some other item with blood or other bodily fluid on it, it's often better to hold up that evidence as an example of reasonable doubt. You see, jurors, the state didn't test it because they didn't want to know their theory of the case was wrong. If the defense attorney asks for the items to be tested and they don't exclude her client, now that's a serious problem.
Thanks to our modern day love fest with all things police, and the right-wing "Blue Lives Matter" campaign, jurors come into the courthouse believing that the police are all hard-working servants of the people who are honorable and would never coerce a confession or tamper with evidence. In truth, as we all know, once the police hone in on a suspect, everything they do is geared toward proving that person committed the crime - and if the evidence doesn't fit that model then it never gets mentioned.
As a result, innocent people get convicted. They get convicted of traffic offenses, they get convicted of petty crimes, they get convicted of heinous crimes.
These men and women serve years behind bars. Their lives are destroyed. Their families are torn apart. And then, if they get lucky, when evidence demonstrating their innocence is prevented, the courts and prosecutors continue to fight to keep them behind bars. It's almost as if admitting that a mistake was made would cause the entire system to collapse upon itself.
Of course I prefer to think that it would shine some light on the problems with our criminal (in)justice system. It would be a good thing for jurors to walk into the courthouse a little more skeptical than they are now.
But that's another story for another day.
While prosecutors and defense attorneys fight to win cases, the duty of the attorneys is different. The duty of a criminal defense attorney is to defend his or her client by all means possible. But a prosecutor has a different task. While the prosecutor's goal is to win, because of the power the state has to take away a person's life or liberty, the prosecutor must temper their goal to win with the duty to see that justice is done. And sometimes that duty means having to stand up and say we got it wrong this time.
That is a quality that the prosecutors mentioned in this article did not demonstrate. Their primary concern was to win, justice be damned.
In an adversarial system, both prosecutors and defense attorneys are trying to win their case. The theory (faulty at best) is that through the crucible of a trial, the facts will come out and a jury made up of local citizens will be able to determine whether or not a crime occurred.
Nice in theory - but that's not how it works in real life. In many cases of exoneration there are items with biological material that were never tested. In the end when this evidence was tested the results proved that someone else committed the crime. The items weren't tested in the original proceeding because the defense attorney would be taking a big gamble in having the tests carried out. Let's think about it, we all assume the worse case scenario for our clients. If there is a rag, or a shirt or some other item with blood or other bodily fluid on it, it's often better to hold up that evidence as an example of reasonable doubt. You see, jurors, the state didn't test it because they didn't want to know their theory of the case was wrong. If the defense attorney asks for the items to be tested and they don't exclude her client, now that's a serious problem.
Thanks to our modern day love fest with all things police, and the right-wing "Blue Lives Matter" campaign, jurors come into the courthouse believing that the police are all hard-working servants of the people who are honorable and would never coerce a confession or tamper with evidence. In truth, as we all know, once the police hone in on a suspect, everything they do is geared toward proving that person committed the crime - and if the evidence doesn't fit that model then it never gets mentioned.
As a result, innocent people get convicted. They get convicted of traffic offenses, they get convicted of petty crimes, they get convicted of heinous crimes.
These men and women serve years behind bars. Their lives are destroyed. Their families are torn apart. And then, if they get lucky, when evidence demonstrating their innocence is prevented, the courts and prosecutors continue to fight to keep them behind bars. It's almost as if admitting that a mistake was made would cause the entire system to collapse upon itself.
Of course I prefer to think that it would shine some light on the problems with our criminal (in)justice system. It would be a good thing for jurors to walk into the courthouse a little more skeptical than they are now.
But that's another story for another day.
While prosecutors and defense attorneys fight to win cases, the duty of the attorneys is different. The duty of a criminal defense attorney is to defend his or her client by all means possible. But a prosecutor has a different task. While the prosecutor's goal is to win, because of the power the state has to take away a person's life or liberty, the prosecutor must temper their goal to win with the duty to see that justice is done. And sometimes that duty means having to stand up and say we got it wrong this time.
That is a quality that the prosecutors mentioned in this article did not demonstrate. Their primary concern was to win, justice be damned.
Wednesday, September 21, 2016
The commodification of the law
On Tuesday I spent more time that usual on Twitter. It might have had something to do with it being my birthday and feeling a bit unmotivated to work all afternoon. This is one of the tweets that piqued my interest.
I encourage you to ponder on this from #ClioCloud9 - "You are a media company first. Only after that do you sell legal product." Huge impact
It might be more appropriate for me to say that it disturbed me.
I don't care how cutting edge attorneys want to be. I don't care how much the whiz kids say the practice of law has changed. But if this message is true, then we are nothing but soap salesmen. And that's troubling. Very troubling.
The last time I checked, the basis of our profession is helping those who are unable to help themselves out of a problem. Our duty is to provide advice to our clients to assist them in deciding the best way to resolve their issue. For those of us who practice criminal law, our duty is elevated as we hold not only our client's future in our hands, but the future of his family as well.
Those clients don't give a fuck about your social media presence. They don't give a fuck about the content you pump out through various channels. They only care about one thing - can you get their ass out of the fire.
That's not the same as someone deciding what brand of soap, or soda or paper towels to buy.
If you accept what this ClioCloud conference (or whatever the hell it was) is telling you, then you are turning the practice of law into a commodity. And, if you're turning the practice into a commodity you are selling your clients down the river.
Commodities are fungible goods. They are interchangeable. They are produced for mass consumption.
The practice of law is not for mass consumption. Every client is different. Every case is different. Your duty as a lawyer is to analyze the case, examine the law and advise your client. Your duty isn't to pump out more content. Your duty is not to market the hell out of your firm. Your duty isn't to fluff up your resume and pump up your qualifications to get the next check.
And just what the fuck is legal "product?" Representation is not a product. Representation is a relationship.
Beer is a product. Toilet paper is a product. Adult diapers are a product.
Do you really want to debase yourself, and your profession, to the degree of equating the service you provide with adult diapers?
You are a lawyer first. You must ground yourself in the basics of your craft. If you want to be a trial attorney you need to study motion practice, jury selection, argument and cross-examination. If you want to be good at it you will continue to study as long as you practice (hence the term "practice"). When you get really good you will share your skills and insights with other attorneys in order to raise the bar for everyone.
If you subscribe to the bullshit in that tweet, then why did you waste your money going to law school? You could have save yourself a lot of headache, a lot of hassle and a lot of money by going straight into marketing.
I understand part of what's going on here. For too many years law schools have been pumping out class after class of newbie lawyers despite market saturation. They did it because their income stream was guaranteed by the government. The glut of new attorneys has driven down wages and increased competition for clients (tort reform hasn't helped matters). And into this void have come the marketers selling promises they can't keep.
And if we continue down this path, as my colleague Scott Greenfied would say, soon we'll all be walking down the sidewalk wearing hotpants.
Saturday, September 10, 2016
It's a trifecta!
Harris County DA Devon Anderson may truly be the gift that never stops giving. In addition to the dumpster fire which is Precinct 4, in addition to the state's "expert" witness, Dr. Fessessework Guale, now we have Devon Anderson's Facebook ad for her re-election campaign.
Well I guess, based on the message, that someone informed Devon Anderson that what she did put a judge in a bad position. But why anyone had to point that out to her I don't know because Devon Anderson used to be a judge - up until Barack Obama's election, that is. She should be familiar with the Texas Code of Judicial Conduct which makes this little episode all the more troubling.
I tried to download the video yesterday before it was taken down but I was, apparently, unsuccessful. I am bothered by the fact that Devon Anderson deliberately put a judge in a position that violated the canons of conduct. And I don't care whether or not Devon Anderson is the person who maintains the Facebook page and posts videos and such. The page has her name on it and she is ultimately responsible for the content on the page.
I wish I had made a screen print at the time so I could at least post the photo - but life is full of shoulda, woulda, coulda moments.
Well I guess, based on the message, that someone informed Devon Anderson that what she did put a judge in a bad position. But why anyone had to point that out to her I don't know because Devon Anderson used to be a judge - up until Barack Obama's election, that is. She should be familiar with the Texas Code of Judicial Conduct which makes this little episode all the more troubling.
I tried to download the video yesterday before it was taken down but I was, apparently, unsuccessful. I am bothered by the fact that Devon Anderson deliberately put a judge in a position that violated the canons of conduct. And I don't care whether or not Devon Anderson is the person who maintains the Facebook page and posts videos and such. The page has her name on it and she is ultimately responsible for the content on the page.
I wish I had made a screen print at the time so I could at least post the photo - but life is full of shoulda, woulda, coulda moments.
Friday, September 9, 2016
And the hits just keep coming
Well, that certainly didn't take long.
Already ankle deep in an evidence destruction scheme in Precinct 4, Harris County DA Devon Anderson has a new mess on her hands. And this time it has to do with drunk driving.
Dr. Fessessework Guale works at the Harris County Institute for Forensic Sciences, until very recently she was one of the managers in the toxicology department.
Dr. Guale was always a favorite expert witness for the state. She would take the stand and tell the jury how accurate and reliable blood alcohol testing was. She would then take out pen and paper and mystify the jury as she calculated what the defendant's blood alcohol concentration would have been at the time of driving. Nevermind that no one had ever bothered to test the defendant's metabolism or measure the time it takes alcohol to be absorbed into his or her system. Forget that the patron saint of blood alcohol testing, Dr. Kurt Dubowski, wrote that so-called retrograde extrapolation (guesstimation) was notoriously unreliable. Nope, nothing was going to stop Dr. Guale from getting on that stand and telling the jury that the defendant - beyond any doubt - was clearly intoxicated at the time of driving. Hell, she didn't even need to view the scene video or offense report - she just knew.
She also knew about killing cats in the name of science. She studied veterinary science back home in Ethiopia and did some serious experimentation on cats. Of the four published articles which she claims, only one has to do with toxicology. The others all have to do with animals.
But one field she might not have know quite so much about was toxicology. For years she took the stand and, under oath, told juries that she had a master's degree in toxicology. Now for some of the folks who ended up sitting on a jury, that was all they needed. If she has a post-graduate degree in toxicology then she probably knows what's she talking about, right?
Um, not so fast.
It turns out that Dr. Guale's master's degree from Oklahoma State is in some field called physiological sciences. On her statement of qualifications (which is submitted to the accreditation agency) she states she has a Masters of Science in Toxicology (just take a look below). Ooops. She claims toxicology is a sub-discipline of physiological science but that's debatable coming from her mouth.
"My training is in toxicology but the degree says physiological sciences, which is a big area which toxicology is a sub part of it. It's called a sub discipline."
-- Dr. Fessessework Guale
Unfortunately that's not what the Oklahoma State University website says when you look up "physiological sciences." It appears that department is part of the school's Center for Veterinary Health Sciences.
The Department of Physiological Sciences at Oklahoma State University contributes substantially to the teaching, research and service components of the Center for Veterinary Health Sciences.
-- Oklahoma State University website
I believe that makes Dr. Guale a perjurer. Just how many cases over the years did she take the stand and lie about her educational background? Just how many times did she lie on her curriculum vitae about her educational background? Just how many times was her falsified CV sent to defense attorneys during discovery?
And if she was so willing to lie about her educational background, what else has she lied about? And since we now know she is a liar, can we, should we, believe anything she has said on the witness stand? For you see, it's not a question of counting up the lies to determine whether or not someone is trustworthy; it's a question of whether or not someone who has lied can ever be believed.
And now Devon Anderson says she's getting to bottom of it. And I'm sure she's in a hurry to do so. Apparently the DA's office has decided they will no longer use Dr. Guale as an expert witness. But will she remain employed with HCIFS? Even though she has lied continually about her academic qualifications, will she or the lab suffer any repercussions?
Every case in which Dr. Guale testified as to retrograde guesstimation needs to be re-examined. Every attorney who handled one of those cases should be notified. And, should we find out that anyone in the DA's office knew about Dr. Guale's lies before now, any convictions which relied on her testimony about blood alcohol concentration should be vacated. In fact, any case in which a defendant was convicted and Dr. Guale testified should be brought into question - particularly since the verdict form does not indicate under which theory of intoxication the jury convicted the accused.
Devon Anderson has shown herself to be largely incompetent in running the Harris County DA's Office. She is certainly not to be trusted. But what should we expect from a person who took charge of the office not through an election but through an appointment after her husband (who failed to disclose his medical condition during his campaign) died less than a year into his term?
Already ankle deep in an evidence destruction scheme in Precinct 4, Harris County DA Devon Anderson has a new mess on her hands. And this time it has to do with drunk driving.
Dr. Fessessework Guale works at the Harris County Institute for Forensic Sciences, until very recently she was one of the managers in the toxicology department.
Dr. Guale was always a favorite expert witness for the state. She would take the stand and tell the jury how accurate and reliable blood alcohol testing was. She would then take out pen and paper and mystify the jury as she calculated what the defendant's blood alcohol concentration would have been at the time of driving. Nevermind that no one had ever bothered to test the defendant's metabolism or measure the time it takes alcohol to be absorbed into his or her system. Forget that the patron saint of blood alcohol testing, Dr. Kurt Dubowski, wrote that so-called retrograde extrapolation (guesstimation) was notoriously unreliable. Nope, nothing was going to stop Dr. Guale from getting on that stand and telling the jury that the defendant - beyond any doubt - was clearly intoxicated at the time of driving. Hell, she didn't even need to view the scene video or offense report - she just knew.
She also knew about killing cats in the name of science. She studied veterinary science back home in Ethiopia and did some serious experimentation on cats. Of the four published articles which she claims, only one has to do with toxicology. The others all have to do with animals.
But one field she might not have know quite so much about was toxicology. For years she took the stand and, under oath, told juries that she had a master's degree in toxicology. Now for some of the folks who ended up sitting on a jury, that was all they needed. If she has a post-graduate degree in toxicology then she probably knows what's she talking about, right?
Um, not so fast.
It turns out that Dr. Guale's master's degree from Oklahoma State is in some field called physiological sciences. On her statement of qualifications (which is submitted to the accreditation agency) she states she has a Masters of Science in Toxicology (just take a look below). Ooops. She claims toxicology is a sub-discipline of physiological science but that's debatable coming from her mouth.
"My training is in toxicology but the degree says physiological sciences, which is a big area which toxicology is a sub part of it. It's called a sub discipline."
-- Dr. Fessessework Guale
Unfortunately that's not what the Oklahoma State University website says when you look up "physiological sciences." It appears that department is part of the school's Center for Veterinary Health Sciences.
The Department of Physiological Sciences at Oklahoma State University contributes substantially to the teaching, research and service components of the Center for Veterinary Health Sciences.
-- Oklahoma State University website
I believe that makes Dr. Guale a perjurer. Just how many cases over the years did she take the stand and lie about her educational background? Just how many times did she lie on her curriculum vitae about her educational background? Just how many times was her falsified CV sent to defense attorneys during discovery?
And if she was so willing to lie about her educational background, what else has she lied about? And since we now know she is a liar, can we, should we, believe anything she has said on the witness stand? For you see, it's not a question of counting up the lies to determine whether or not someone is trustworthy; it's a question of whether or not someone who has lied can ever be believed.
And now Devon Anderson says she's getting to bottom of it. And I'm sure she's in a hurry to do so. Apparently the DA's office has decided they will no longer use Dr. Guale as an expert witness. But will she remain employed with HCIFS? Even though she has lied continually about her academic qualifications, will she or the lab suffer any repercussions?
Every case in which Dr. Guale testified as to retrograde guesstimation needs to be re-examined. Every attorney who handled one of those cases should be notified. And, should we find out that anyone in the DA's office knew about Dr. Guale's lies before now, any convictions which relied on her testimony about blood alcohol concentration should be vacated. In fact, any case in which a defendant was convicted and Dr. Guale testified should be brought into question - particularly since the verdict form does not indicate under which theory of intoxication the jury convicted the accused.
Devon Anderson has shown herself to be largely incompetent in running the Harris County DA's Office. She is certainly not to be trusted. But what should we expect from a person who took charge of the office not through an election but through an appointment after her husband (who failed to disclose his medical condition during his campaign) died less than a year into his term?
Thursday, September 8, 2016
Stepping in it
Oh what a mess Harris County DA Devon Anderson has found herself in. As has been reported in local media outlets, over the last nine years some 21,000 pieces of evidence were destroyed in Harris County Precinct 4. All of the evidence was supposedly destroyed by one deputy - Christopher Hess - who has since been fired.
But somehow none of it came to light until local defense attorneys Emily DeToto and Paul Morgan found out when one of their clients was being offered a 25 year sentence on a dope case last month.
Strangely enough, Ms. Anderson announced at a press conference that her office had been aware of the destroyed evidence since February but chose not to say a word about it - all the while offering lengthy prison sentences in a cases in which there was no evidence.
Of course Constable Mark Herman claims that the entire problem has been resolved and that everything in Precinct 4 is now hunky-dory (which would be a first). If the story needs any more spicing up, the former constable, Ron Hickman, was appointed Sheriff following the resignation of Adrian Garcia.
But aside from the stinking mess that is (and has been) Precinct 4, why didn't Ms. Anderson's office inform defense attorneys about the problem when she found out about it? The requirements of Brady would seem to scream out that her office should have notified any defense attorney representing a client who was arrested in Precinct 4, that there was a problem with evidence storage. Her underlings damn sure shouldn't have been offering plea deals to defendants when they knew there was no evidence to back up the case.
Apparently we can require prosecutors to attend all the ethics classes we want and it won't change the culture of the office. Ms. Anderson wants us all to believe that all is well with the world and that her office is seeing that justice is done. Really?
There is no justification for Ms. Anderson's actions (or lack thereof). There is no excuse for sitting on this matter for six months. If Ms. DeToto and Mr. Morgan hadn't found out when they did, when would we have found out? And what other nasty little scandals are lurking in the nooks and crannies of the 6th Floor of the Harris County Criminal (In)Justice Center?
If Ms. Anderson can't be trusted to notify the defense bar of the wholesale destruction of evidence, how can we trust her office to investigate the matter? If we really want to find out what happened, who did it and how long it went on, then we need to have an outside agency do the investigating.
Ms. Anderson and her minions have shown they cannot be trusted.
But somehow none of it came to light until local defense attorneys Emily DeToto and Paul Morgan found out when one of their clients was being offered a 25 year sentence on a dope case last month.
Strangely enough, Ms. Anderson announced at a press conference that her office had been aware of the destroyed evidence since February but chose not to say a word about it - all the while offering lengthy prison sentences in a cases in which there was no evidence.
Of course Constable Mark Herman claims that the entire problem has been resolved and that everything in Precinct 4 is now hunky-dory (which would be a first). If the story needs any more spicing up, the former constable, Ron Hickman, was appointed Sheriff following the resignation of Adrian Garcia.
But aside from the stinking mess that is (and has been) Precinct 4, why didn't Ms. Anderson's office inform defense attorneys about the problem when she found out about it? The requirements of Brady would seem to scream out that her office should have notified any defense attorney representing a client who was arrested in Precinct 4, that there was a problem with evidence storage. Her underlings damn sure shouldn't have been offering plea deals to defendants when they knew there was no evidence to back up the case.
Apparently we can require prosecutors to attend all the ethics classes we want and it won't change the culture of the office. Ms. Anderson wants us all to believe that all is well with the world and that her office is seeing that justice is done. Really?
There is no justification for Ms. Anderson's actions (or lack thereof). There is no excuse for sitting on this matter for six months. If Ms. DeToto and Mr. Morgan hadn't found out when they did, when would we have found out? And what other nasty little scandals are lurking in the nooks and crannies of the 6th Floor of the Harris County Criminal (In)Justice Center?
If Ms. Anderson can't be trusted to notify the defense bar of the wholesale destruction of evidence, how can we trust her office to investigate the matter? If we really want to find out what happened, who did it and how long it went on, then we need to have an outside agency do the investigating.
Ms. Anderson and her minions have shown they cannot be trusted.
Thursday, March 24, 2016
Update: Disbarred attorney reinstated
When last we left Houston attorney Robert Bennett he had been disbarred after a trial on alleged ethics violations. The State Bar alleged that Mr. Bennett violated two ethics rules. What made the matter a bit odd is that the State Bar never recommended that Mr. Bennett be disbarred - that sanction came from Judge Carmen Kelsey of San Antonio.
Today the 14th Court of Appeals in Houston overturned Mr. Bennett's disbarment finding that the evidence was insufficient to support the allegation that he refused to return an advanced payment of an unearned fee to a client. The Court did, however, uphold the finding that he violated the rule against an attorney taking a position during litigation that unnecessarily increases the cost of litigation or unreasonably delays resolution of a matter.
As a result, Mr. Bennett has been reinstated to the bar.
Today the 14th Court of Appeals in Houston overturned Mr. Bennett's disbarment finding that the evidence was insufficient to support the allegation that he refused to return an advanced payment of an unearned fee to a client. The Court did, however, uphold the finding that he violated the rule against an attorney taking a position during litigation that unnecessarily increases the cost of litigation or unreasonably delays resolution of a matter.
As a result, Mr. Bennett has been reinstated to the bar.
Friday, June 12, 2015
A small measure of justice
Maybe the name Charles Sebesta rings a bell. If not, maybe the name Anthony Graves will.
Mr. Sebesta was the prosecutor who withheld evidence at Mr. Graves' murder trial over 20 years ago. Mr. Graves spent 12 years on death row as a result of Mr. Sebesta's unethical and illegal conduct.
For all of the injustices our clients face, there are moments where justice does prevail. Sometimes it's a day late and a dollar short, but it prevails nonetheless. Yesterday was one of those days.
Yesterday Charles Sebesta was disbarred by the State Bar of Texas for his actions in prosecuting Anthony Graves. While Mr. Sebesta has lost his ticket to play, nothing can make up for the years Mr. Graves spent in prison for a crime he didn't commit. Nothing can make up for the years he lost and the moments he never got to experience.
But at least Mr. Sebesta is being held accountable.
Mr. Sebesta was the prosecutor who withheld evidence at Mr. Graves' murder trial over 20 years ago. Mr. Graves spent 12 years on death row as a result of Mr. Sebesta's unethical and illegal conduct.
For all of the injustices our clients face, there are moments where justice does prevail. Sometimes it's a day late and a dollar short, but it prevails nonetheless. Yesterday was one of those days.
Yesterday Charles Sebesta was disbarred by the State Bar of Texas for his actions in prosecuting Anthony Graves. While Mr. Sebesta has lost his ticket to play, nothing can make up for the years Mr. Graves spent in prison for a crime he didn't commit. Nothing can make up for the years he lost and the moments he never got to experience.
But at least Mr. Sebesta is being held accountable.
Friday, July 11, 2014
Unintended consequences of the Michael Morton Act
All across the State of Texas, local district attorneys are teaming up with judges to find creative ways to get prosecutors out from under the Michael Morton Act. For those of y'all not keeping up, the Michael Morton Act mandates items that the state must hand over to the defense in a criminal prosecution. The law was named after Michael Morton, the Williamson County man who spent 25 years in prison after being wrongly convicted of killing his wife.
The current tool to get around the requirements of the Morton Act is a waiver that defense attorneys are asked to sign before their clients enter a guilty plea to a charge. The waivers I've seen all contain some language about the defense attorney acknowledging that the state turned over all evidence mandated by the Morton Act.
Of course the problem here is the problem I've written about with regard to Brady material. As a defense attorney I haven't the slightest clue what evidence the DA's office has access to. I haven't the foggiest idea what evidence is in the hands of law enforcement. And I sure don't know if anyone is playing hide the sausage with exculpatory material.
I would be fine signing a document listing out everything the state produced during the course of the case - but I have a hard time signing any document in which I acknowledge that I have received everything I'm entitled to when I have no way of knowing if I have or haven't.
Even more objectionable is the section in which the defense attorney is asked to waive the state's obligation to hand over material listed in the Morton Act once the defendant has entered a plea. First, I don't think a defense attorney can ethically waive his client's right to obtain exculpatory material long after his case has been closed unless the client understands fully just what that waiver entails.
Exculpatory evidence can take many forms. It may be the confession of a lab analyst who faked hundreds of tests during his or her time in the crime lab. What about the police officer who is later indicted, and corrected, for a crime of dishonesty or moral turpitude? How about a supervisor who doesn't go out and run calibration tests on her equipment? Revelations that evidence in a crime lab was stored improperly? What about a later confession by a person who claims to have committed the crime to which your client pled guilty?
Each and every one of those examples presents an opportunity for post-conviction writs based on evidence that was unavailable at the time of trial. Would these waivers allow prosecutors to brush such incidents under the rug? If a defendant has waived his right to exculpatory material after his plea bargain agreement, would prosecutors have any obligation to notify him - or his attorney - of an issue that might affect the validity of his conviction?
If that is the effect of the waivers that attorneys are being asked to sign, then the intent of the Morton Act has been turned on its head.
The current tool to get around the requirements of the Morton Act is a waiver that defense attorneys are asked to sign before their clients enter a guilty plea to a charge. The waivers I've seen all contain some language about the defense attorney acknowledging that the state turned over all evidence mandated by the Morton Act.
Of course the problem here is the problem I've written about with regard to Brady material. As a defense attorney I haven't the slightest clue what evidence the DA's office has access to. I haven't the foggiest idea what evidence is in the hands of law enforcement. And I sure don't know if anyone is playing hide the sausage with exculpatory material.
I would be fine signing a document listing out everything the state produced during the course of the case - but I have a hard time signing any document in which I acknowledge that I have received everything I'm entitled to when I have no way of knowing if I have or haven't.
Even more objectionable is the section in which the defense attorney is asked to waive the state's obligation to hand over material listed in the Morton Act once the defendant has entered a plea. First, I don't think a defense attorney can ethically waive his client's right to obtain exculpatory material long after his case has been closed unless the client understands fully just what that waiver entails.
Exculpatory evidence can take many forms. It may be the confession of a lab analyst who faked hundreds of tests during his or her time in the crime lab. What about the police officer who is later indicted, and corrected, for a crime of dishonesty or moral turpitude? How about a supervisor who doesn't go out and run calibration tests on her equipment? Revelations that evidence in a crime lab was stored improperly? What about a later confession by a person who claims to have committed the crime to which your client pled guilty?
Each and every one of those examples presents an opportunity for post-conviction writs based on evidence that was unavailable at the time of trial. Would these waivers allow prosecutors to brush such incidents under the rug? If a defendant has waived his right to exculpatory material after his plea bargain agreement, would prosecutors have any obligation to notify him - or his attorney - of an issue that might affect the validity of his conviction?
If that is the effect of the waivers that attorneys are being asked to sign, then the intent of the Morton Act has been turned on its head.
Thursday, July 3, 2014
Disgraced former DA gets new gig
Disgraced former Williamson County District Attorney John Bradley has finally landed a new gig. He will be working in the Attorney General's Office in the Republic of Palau - a former US territory in Micronesia.
For those of y'all who may have been hiding under a rock the past couple of years, Mr. Bradley lost his post when he lost in the GOP primary back in 2012. As conservative as folks might be in Williamson County, they weren't able to overlook his role in the Michael Morton affair.
While it was former DA and former Judge (and former attorney) Ken Anderson who played fast and loose with the rules during the Morton investigation and trial, Mr. Bradley was the mouthpiece for those who wanted to preserve a bad conviction at any price. As a result of the illegal and shameful conduct by the Williamson County DA's Office, Michael Morton lost 25 years of his life and a killer walked free while he sat behind bars for a crime he didn't commit.
From Ms. Falkenburg's piece:
It remains to be seen whether Palau will experience some of Bradley's brand of "justice."
For those of y'all who may have been hiding under a rock the past couple of years, Mr. Bradley lost his post when he lost in the GOP primary back in 2012. As conservative as folks might be in Williamson County, they weren't able to overlook his role in the Michael Morton affair.
While it was former DA and former Judge (and former attorney) Ken Anderson who played fast and loose with the rules during the Morton investigation and trial, Mr. Bradley was the mouthpiece for those who wanted to preserve a bad conviction at any price. As a result of the illegal and shameful conduct by the Williamson County DA's Office, Michael Morton lost 25 years of his life and a killer walked free while he sat behind bars for a crime he didn't commit.
From Ms. Falkenburg's piece:
"I don't wake up every morning gnashing my teeth and shaking my fist at, you know, 'where's John Bradley?' I've literally and figuratively moved on," [Michael Morton] said.
"At this stage of the game, I wish him well," Morton said. "And, you know, adios."The fact that Bradley had to go all the way to Palau to get a gig just goes to show how reprehensible his actions were in defending the conviction.
It remains to be seen whether Palau will experience some of Bradley's brand of "justice."
Monday, June 30, 2014
First the plea, then the admonishments
On Friday members of the Harris County Criminal Lawyers' Association stood outside Judge Michael Fields' courtroom handing out 3x5 cards listing the rights a criminal defendant has under the 5th and 6th Amendments. They did this to protect unrepresented defendants making their first appearance from Judge Fields.
If you are taken into custody in Harris County and aren't bailed out immediately you will probably find yourself standing in a room staring at a video monitor as a magistrate informs you that it would be best if you kept your damn mouth shut. He then asks if you want to plead guilty. If not, a plea of not guilty is entered and you are returned to your holding cell until you bond out or until you are moved to a pod.
For those who get bonded out earlier they are released from the jail and handed a piece of paper telling them when and where they need to appear. At that first appearance in court they are called up to the bench and the judge tells them it would be best if they would keep their damn mouths shut. If they've bonded out it's assumed that they are pleading not guilty.
Unlike what you see on television or in the movies. There is no dramatic scene where a defendant is brought into a courtroom with an attorney to enter a not guilty plea and argue over the amount of bond required to get out of jail. You see, we have a bond schedule in Harris County that takes the guesswork right out of the entire process. There's no need to talk about mitigating circumstances or a defendant's clean record or ability to pay, all a magistrate has to do is look down the list and set bail.
But then we come to the 11th floor of the Harris County Criminal (In)justice Center and the courtroom for County Criminal Court at Law No. 14. That's where the rules we follow in the normal world don't apply. It can be like stepping out into another world.
This is a court in which every defendant charged with driving while intoxicated will be ordered to install an ignition interlock device on their car -- even the one who blew 0.0 who was suspected of having smoked marijuana. Let's just forget about the fact that the interlock device can't detect THC in a person's breath. But, dammit, if he was charged with DWI we're going with the interlock anyway. And heaven help the poor soul who "tripped the wire" because he had used mouthwash just before starting his car. If anything bad comes back on that report he's going to jail overnight to teach him the lesson that neither the state nor its devices are ever wrong.
Step into the courtroom and you will see Judge Fields call up all the defendants making their first appearances who bonded out and who haven't hired attorneys. And then, without letting the people in front of him know they have the right to remain silent and the right to consult with counsel, he asks them how they wish to plead. Right there. No one is provided with any information about the consequences of pleading guilty and no one is warned of the potential collateral consequences of such a plea.
And once it's entered, it's final. No turning back. No changing your mind.
A judge isn't part of the prosecution's team. A judge is supposed to a be a neutral and unbiased referee who's sole job is to make certain that a defendant's due process rights are protected and that both sides follow the rules of evidence and procedure during the course of the proceedings. Whether a person pleads guilty or not is of no concern to the judge - at least it shouldn't be. In Texas we are all guaranteed the right to a jury trial in a criminal matter. Defendants and their attorneys shouldn't have to fight the judge to exercise that right.
The entire criminal (in)justice system in Harris County is designed to coerce defendants into pleading guilty. Whether it's excessive bail or bond conditions; or whether it's judges who want to prevent folks from exercising their right to a jury trial; the game is the same.
Judge Fields isn't the only one playing this game. But he was certainly the most egregious this time around.
If you are taken into custody in Harris County and aren't bailed out immediately you will probably find yourself standing in a room staring at a video monitor as a magistrate informs you that it would be best if you kept your damn mouth shut. He then asks if you want to plead guilty. If not, a plea of not guilty is entered and you are returned to your holding cell until you bond out or until you are moved to a pod.
For those who get bonded out earlier they are released from the jail and handed a piece of paper telling them when and where they need to appear. At that first appearance in court they are called up to the bench and the judge tells them it would be best if they would keep their damn mouths shut. If they've bonded out it's assumed that they are pleading not guilty.
Unlike what you see on television or in the movies. There is no dramatic scene where a defendant is brought into a courtroom with an attorney to enter a not guilty plea and argue over the amount of bond required to get out of jail. You see, we have a bond schedule in Harris County that takes the guesswork right out of the entire process. There's no need to talk about mitigating circumstances or a defendant's clean record or ability to pay, all a magistrate has to do is look down the list and set bail.
But then we come to the 11th floor of the Harris County Criminal (In)justice Center and the courtroom for County Criminal Court at Law No. 14. That's where the rules we follow in the normal world don't apply. It can be like stepping out into another world.
This is a court in which every defendant charged with driving while intoxicated will be ordered to install an ignition interlock device on their car -- even the one who blew 0.0 who was suspected of having smoked marijuana. Let's just forget about the fact that the interlock device can't detect THC in a person's breath. But, dammit, if he was charged with DWI we're going with the interlock anyway. And heaven help the poor soul who "tripped the wire" because he had used mouthwash just before starting his car. If anything bad comes back on that report he's going to jail overnight to teach him the lesson that neither the state nor its devices are ever wrong.
Step into the courtroom and you will see Judge Fields call up all the defendants making their first appearances who bonded out and who haven't hired attorneys. And then, without letting the people in front of him know they have the right to remain silent and the right to consult with counsel, he asks them how they wish to plead. Right there. No one is provided with any information about the consequences of pleading guilty and no one is warned of the potential collateral consequences of such a plea.
And once it's entered, it's final. No turning back. No changing your mind.
A judge isn't part of the prosecution's team. A judge is supposed to a be a neutral and unbiased referee who's sole job is to make certain that a defendant's due process rights are protected and that both sides follow the rules of evidence and procedure during the course of the proceedings. Whether a person pleads guilty or not is of no concern to the judge - at least it shouldn't be. In Texas we are all guaranteed the right to a jury trial in a criminal matter. Defendants and their attorneys shouldn't have to fight the judge to exercise that right.
The entire criminal (in)justice system in Harris County is designed to coerce defendants into pleading guilty. Whether it's excessive bail or bond conditions; or whether it's judges who want to prevent folks from exercising their right to a jury trial; the game is the same.
Judge Fields isn't the only one playing this game. But he was certainly the most egregious this time around.
Monday, June 23, 2014
On picking your fights
I was in municipal court for a client fighting a traffic ticket in a Houston suburb last Thursday. The court wants defendants in the courtroom to answer an 8:00 a.m. docket call on trial settings. They also want attorneys to call in if they are going to be running more than a few minutes late.
There were a couple of attorneys in attendance whom I knew - or at least recognized. There was one attorney in particular who I used to run into a great deal in Houston that was there.
Around 9:00 a.m. the judge announced which cases would be proceeding to trial and which cases would be reset (based in large measure on the number of jurors who were present). My client's case was the first one up.
In the meantime the attorney I recognized from Houston was upset because his client's trial date was being reset. The judge informed the attorney that neither he nor his client were in court on time and that the officer who issued the ticket had been released at 8:02 a.m. when no one answered the docket.
The attorney laughed and drew the judge's ire. She asked him if he found something funny and he told her that releasing an officer two minutes after docket call was ridiculous. He added that his client was in the building at 8:00 a.m. What followed wasn't so much as a discussion of the situation but an unnecessary escalation of a disagreement.
The attorney told the judge it was ridiculous not to hold the officer until a late call of the docket was made. He also pointed out that when a person is charged with failure to appear the charge does not recite that the defendant missed docket call, the charge states that the defendant failed to appear on the date in question.
The attorney then asked the judge for her bar card number so that he could file a complaint with the State Commission on Judicial Conduct. He later added that the court's bailiff had supposedly been rude to his client.
Now the attorney had a point. The entire process was a joke. However, I question his decision to fight on that ground on that day. His client's case had been reset. Yes, his client ended up wasting his time coming to court because of a silly rule; but, he lived to fight another day. Every reset in municipal court affords the officer another chance to miss court, get fired, get indicted, retire or forget the facts of the case.
Furthermore, it's not like his client had been charged with failing to appear in court. It's not as if his client were somehow convicted of the offense for showing up late (if he was late). I understand they were ready to go, but getting reset is far from the end of the world.
My client witnessed the entire episode and was appalled that someone would talk to a judge that way. I told her that there is a time and a place to stand up to ablack-robed prosecutor judge but that this definitely wasn't it.
The entire episode could have been handled with a hell of a lot more tact. If you're going to stand up to the judge, it needs to be a fight worth having. Those fights can be beneficial in the long run if the judge realizes that you will not allow yourself to be steamrolled. But picking fights on issues that don't call for a fight can have just the opposite effect.
As an aside, my client was charged with running a stop sign. The stop sign in question was about a car length from the intersection. My client pulled up to the intersection, where she could see the cross traffic and stopped before turning. The officer told her (incorrectly) that she violated the law when she didn't stop behind the stop sign.
The judge, the prosecutor and I were talking about the case and we decided to let the judge watch the video to see what she thought. She watched it and told me that my client didn't want her deciding the case. So now we were ready for trial. The prosecutor and the officer went into a back room for a few minutes before coming out and telling us the case was being dismissed.
There were a couple of attorneys in attendance whom I knew - or at least recognized. There was one attorney in particular who I used to run into a great deal in Houston that was there.
Around 9:00 a.m. the judge announced which cases would be proceeding to trial and which cases would be reset (based in large measure on the number of jurors who were present). My client's case was the first one up.
In the meantime the attorney I recognized from Houston was upset because his client's trial date was being reset. The judge informed the attorney that neither he nor his client were in court on time and that the officer who issued the ticket had been released at 8:02 a.m. when no one answered the docket.
The attorney laughed and drew the judge's ire. She asked him if he found something funny and he told her that releasing an officer two minutes after docket call was ridiculous. He added that his client was in the building at 8:00 a.m. What followed wasn't so much as a discussion of the situation but an unnecessary escalation of a disagreement.
The attorney told the judge it was ridiculous not to hold the officer until a late call of the docket was made. He also pointed out that when a person is charged with failure to appear the charge does not recite that the defendant missed docket call, the charge states that the defendant failed to appear on the date in question.
The attorney then asked the judge for her bar card number so that he could file a complaint with the State Commission on Judicial Conduct. He later added that the court's bailiff had supposedly been rude to his client.
Now the attorney had a point. The entire process was a joke. However, I question his decision to fight on that ground on that day. His client's case had been reset. Yes, his client ended up wasting his time coming to court because of a silly rule; but, he lived to fight another day. Every reset in municipal court affords the officer another chance to miss court, get fired, get indicted, retire or forget the facts of the case.
Furthermore, it's not like his client had been charged with failing to appear in court. It's not as if his client were somehow convicted of the offense for showing up late (if he was late). I understand they were ready to go, but getting reset is far from the end of the world.
My client witnessed the entire episode and was appalled that someone would talk to a judge that way. I told her that there is a time and a place to stand up to a
The entire episode could have been handled with a hell of a lot more tact. If you're going to stand up to the judge, it needs to be a fight worth having. Those fights can be beneficial in the long run if the judge realizes that you will not allow yourself to be steamrolled. But picking fights on issues that don't call for a fight can have just the opposite effect.
As an aside, my client was charged with running a stop sign. The stop sign in question was about a car length from the intersection. My client pulled up to the intersection, where she could see the cross traffic and stopped before turning. The officer told her (incorrectly) that she violated the law when she didn't stop behind the stop sign.
The judge, the prosecutor and I were talking about the case and we decided to let the judge watch the video to see what she thought. She watched it and told me that my client didn't want her deciding the case. So now we were ready for trial. The prosecutor and the officer went into a back room for a few minutes before coming out and telling us the case was being dismissed.
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