The Matlock Blog

The Wheel and the well-meaning relative

The second case I helped defend when I returned to Texas was a nasty aggravated sexual assault case. The facts were very bad, but that was only if they could be proven and both sides knew that was questionable. The State ultimately made an offer that was very good. We spoke to the client and had advised him to take it. We felt that he would, but he wanted to think about it and talk to his mother about it first. She was flying in that afternoon.

As my boss, the great Tom Morgan of Midland, told me on the way out, "We're going to trial. He won't take the deal." I couldn't believe it. Was he in there with me? When I asked him how he knew that, he said one word," Mom."

Tom was right. After speaking to his mother, the client was convinced that he hadn't done anything wrong. He shouldn't plead to something just because his lawyer told him to do so. He didn't plead guilty. He took his mother's advice instead of his lawyer's advice and he is now serving 20 years instead of the five that was offered. (He'd be out by now by the way.)

What does this have to do with the wheel? Well, as you know, the wheel is the system by which attorneys are appointed to criminal cases. In order to qualify for a given level of appointment, an attorney has to have tried a certain number of that level of cases. It generally isn't a big deal to qualify. (I think the number is something like five felony trials to serve on everything other than the capital cases.)

But about two weeks ago, I was waiting to talk to a judge about a case. A trial was going on and I was sitting in the back. Another attorney came in presumably to do the same. As we sat there, we both thought of the same question: "Why is this being tried?"

Neither of us recognized the attorney, but he looked relatively young. (That's saying something since I still get carded.) But after we dealt with our business during a break, we both began asking what that case was about. Why was it in trial? But it was really more than that. He wasn't even really trying. I hate to say it, but he seemed to be going through the motions.

We all try cases at times that are dogs. It happens. Maybe it's because the jury's sentence can't be any worse than the State's offer. Maybe the client just wants his day in court. Maybe it's because the client has bigger fish to fry in another case or state or in federal court. Whatever the reason, cases are tried that in a vacuum might not otherwise be tried.

Despite that, I like to think that in those cases, the attorney does his best to defend the dog of a case. He crosses the cop with the zeal you would expect. He presents a cogent theory of the case. But sometimes that doesn't happen in these cases.

As the other attorney and I were talking about the case on the elevator down, it became clear to us why the case was being tried. The wheel. The attorney needed a trial to qualify for a certain level of the appointment process, and trying this case was a way to do that.

I certainly don't begrudge anyone trying to qualify for a certain level of appointments by trying the cases that should be tried. But what about when the attorney's desire to qualify for future court appointments influences his advice to his client?

Just as the mother's personal beliefs about our client's case convinced him to turn down that deal, does the wheel system do a similar disservice to defendants, usually the indigent? Are cases tried not for the benefit of the client, but rather for the benefit of the lawyer?

This certainly happens. It probably happens more than we want to admit. But should it happen? Should the qualifications requirements do a disservice to current defendants. I don't think so. But what the hell do I know.

Heard at the courthouse today - Part 2

During a Preliminary/ Detention Hearing in the United States Magistrates court the following question was asked:

"Other than being a crook, does he work for the D.E.A. in another way?"

The question was asked by the judge.

Crying wolf

In an unusual case, an Arlington woman was convicted and sentenced to five years in prison for her role in the shooting death of her lover. Tracy Roberson, represented by local attorneys Jill Davis and Kim Minnick, must serve at least fifty percent of her time before she is parole eligible.

The case stems from a an incident in December, 2006 in which Mrs. Roberson's husband returned home to find his wife in the arms of another man in the man's truck. When confronted by the husband, Darrell Roberson, Mrs. Roberson claimed that she was being raped by her lover, Devin LaSalle. As LaSalle tried to drive away, Darrell Roberson fired four times into the truck, striking LaSalle once in the head.

Tracy Roberson was indicted and tried on charges of involuntary manslaughter for recklessly making a false claim of rape that led to a homicide. Darrell Roberson was not indicted by a Tarrant County grand jury in March of 2007 for his role in the shooting.

When asked whether Mr. Roberson's involvement in the case would warrant a new presentment to the grand jury, Sean Colston, the Assistant District Attorney who tried the case said simply "No comment."

The Fort Worth Star-Telegram story is here and the video courtesy of Fox 4 News is here.

Can you imagine?

Dallas County District Attorney Craig Watkins is pushing for severe punishment for those that violate the law. Nothing new about that, right? Well, the difference is the potential offenders might well be in his own office. Or any other District Attorney's office in the State.

District Attorney Watkins is seeking stiff penalties for prosecutors that hide evidence. Watkins is apparently seeking to have prosecutors who hide evidence from the defense subject to either criminal penalties or disbarment for their actions.

Dallas County leads the nation in wrongful convictions overturned by DNA testing. Mr. Watkins' office has seen 17 people formally exonerated by DNA testing since 2001, the highest such number in the country. Texas likewise leads the nation with 31 in that time frame.

What is the likelihood that the Texas Legislature will enact a new criminal statute that deals with prosecutorial misconduct by not revealing Brady evidence? Michelle Moore, a board member of the Texas Innocence Project and a Dallas County public defender says it's unlikely. I would agree.

But imagine it actually happened. What if the Texas Legislature, in all of its infinite wisdom (again, this is an example of sarcasm) decided that a prosecutor who swore an oath to seek justice committed a criminal act when he withheld evidence that might indicate the accused was not in fact guilty of the crime with which he was charged? Imagine if the legislature actually felt that such conduct was so abominable as to constitute a criminal statute similar to this, this and this. What would that really mean for the guy who is looking at 43 years in prison? (That 43 link is also important here ,though off topic.)

Well, I'm thinking about this and I wonder if it would have an impact on the judicial process. Let's look at an example. Say your client gets convicted and is sentenced to 35 years. The appeals process is exhausted. Then about 7 years after the verdict, the prosecutor who was trying the case is charged under the new anti-convicting-the-innocent law. We'll call it Tulia's Law. Does that affect your client's case?

If this happened, it would seem logical that word would trickle through the local criminal bar that such-and-such prosecutor is being charged with a violation of Tulia's Law. It would be logical (and this may just be me thinking here) that Tulia's Law would be at least a third degree felony in order to have any real substance to it. Can you imagine the posturing that prosecution would entail? What if the prosecutor still worked at the D.A.'s office? What if the prosecutor is now a judge? What if the prosecutor was now deemed one of the best defense attorneys in the state?

What would be the requisite level of intent? Is it enough to recklessly withhold evidence, or should it be more? Should it be intentionally? Could it be a specific intent crime? Can you imagine all of the defenses that could be crafted into that? Mistake of fact? Mistake of law? Public duty? Nuremberg? Bueller?... Bueller?... Bueller?

Imagine, if you will, the scenario of the D.A.'s office wherein the prosecuted prosecutor went on to get elected to the bench only to be prosecuted under Tulia's Law. The judge doesn't want to plead to anything (what would be a lesser included?) so she roles the dice and goes to trial. Think of the fireworks when she takes the stand and claims the long-entrenched District Attorney herself ordered the poor prosecutor to withhold the evidence.

I should write a book on something like this. This could be good stuff. I'm still wrapping my mind around the consequences of this one, so I'll write more later.

The latest sign of the apocalypse

After court today, I stopped by the downtown Barnes and Noble. I was looking for a book on Thomas Jefferson. Specifically, I was looking for a new version of "American Sphinx" because I have apparently misplaced mine, and after watching the excellent mini series on HBO "John Adams" I was again interested in one of my favorite presidents. What did I find?

In the "J's" of the biography around where Jefferson books would be, I found one biography on Thomas Jefferson entitled "Thomas Jefferson: A Life."

Next to it? Eleven copies of "How to Make Love Like a Porn Star: A Cautionary Tale" by Jenna Jameson.

Thomas Jefferson once said "I cannot live without books." I wonder if he had Ms. Jameson's in mind when he said that?

A War Criminal, A Nazi, and I walk into a bar

We all order a beer, but the bartender only brings one beer. Why? Well, apparently we are one in the same.

As you recall, I posted a simple question of which character trait would you most want in a defense attorney; empathy or ruthlessness. What started as a generic post has erupted into a firestorm.

You see, our good friend Mark Bennett down at Defending People took exception to the idea that defense attorneys could, or should ever be ruthless. He calls the ruthless lawyer a myth. It seems the word ruthless is a bad word for Mark and his extremist, reactionary commenters, whom I shall now always refer to as Bennettons.

Now I will admit, as I did here and as Norm Pattis and Scott Greenfield and Jamie Spencer said, that perhaps we are really talking semantics here. One man's ruthless representation is another man's aggressive representation and another man simply putting his heart into his.

But boy, the Bennettons don't see it that way. Apparently down Houston way, ruthless means you are a war criminal. Or a dictator. Or a Nazi. Or maybe just a really bad guy.

I completely understand that Mark thinks that to be a better defense attorney, he needs to be able to empathize with his client and his situation, and in turn convey that experience to the prosecutor in negotiations and to the judge and/ or jury during trial. I got that. I have no problem with. I really don't. It's part of what we do. I try to do it, although admittedly probably not nearly as well as Mark. As Greenfield made clear, we need to be able to be whatever our clients need us to be at that particular time.

I could question Mark's "legal tactics" (as his commenters have questioned mine) by saying he would rather make everyone in the case feel good about themselves. I could argue that Mark is doing his clients a disservice by wanting to give the State's witnesses a hug before and after cross examining them. I could say I doubt there are too many people in prison who were okay with their attorneys not ruthlessly representing them because their attorney made them feel like a better person by sitting around the office in a circle singing. But I won't. Not me. I'm not an extremist reactionary.

The word ruthless means simply "without pity or compassion." The synonyms are relentless and adamant. (Try looking that up, Bennettons.) There is nothing in there about breaking the rules or the law. There is nothing about doing anything unethical. Of course I don't have a Houston dictionary, so it might be different down there.

There is nothing about ruthless representation that means you are a jerk to the prosecutor or the court staff or the judge. It means you have no compassion for the sleazy cop on the stand who is trying to cover his ass by testi-lying. It means you have no pity for making it clear to a jury that the complaining witness is making up the terrible story just to get back at the client. It means I have one job in that courtroom and it is for the guy sitting next to me.

So the next time one of the Bennettons should find themselves in a precarious position with the police (maybe one too many drinks before hitting the road?), maybe they shouldn't be so quick to question the motives of those that ruthlessly defend people. It might actually help them.

But maybe not. So here's a thought. Give the cop a hug. See if that works.

People say I am ruthless. I am not ruthless. And if I find the man who is calling me ruthless, I shall destroy him."

So said Robert Kennedy.

It is amazing how much contempt you can garner when you throw a silly little post up on Sunday night after a few cocktails.

I recently posted a completely rhetorical post about character traits found in criminal defense attorneys. I simply contrasted the attorney who is primarily empathetic (on one end of the spectrum) with the attorney who is deemed ruthless in her representation of her client (on the other end). Boy. What a backlash.

Mark Bennett has, once again, taken exception with something I have said. Maybe I touched a nerve. I have now been thrown into the lot of the sleazy, ambulance-chasing, personal injury lawyers. Why? Good question. Apparently because I asked a question, or advanced a theory. Oh, good God, not that!

Just because Mark advances the idea of empathy towards all for all time doesn't mean I regard him as a feel-good, liberal, kumbaya-singing, hippie-pansy. However, Mark apparently feels that I am nothing more than a money-grubbing, slick-talking, megalomaniacal shark.

It seems that Mark has taken my post as some sort of autobiographical advertisement. First of all, anyone that has read this blog with any regularity knows that there is one thing that I loathe; attorney advertising and promises to clients. This blog is not an advertisement. It's nothing more than my own ramblings. (I am Shawn Matlock, and I approved this message.)

My post was neither autobiographical or an advertisement. Quite the contrary. It was simply a rhetorical question as to what should be the dominant character trait in a defense attorney. But Mark has taken exception to the thought that an attorney should be ruthless in his defense of his client. Perhaps he is right. Maybe I should have not used the word "ruthless" but rather the word "relentless." But I'm not sure.

Jamie Spencer alerts us that he has actually already written about this issue, sort of. (Sorry Jamie, I didn't realize that or I would have given you the much-deserved credit.) He thinks (I think) it is all about semantics and that if you change ruthless to aggressive, then he is all for it.

Of course any time Mark gets going, then you know the esteemed Scott Greenfield will chime in all the way from the Big Apple. Naturally he has corrected all of our thinking on this one. Why does it have to be one or the other? He suggests that a good defense attorney can and should be both empathetic and ruthless depending the circumstances and needs of the client's case. I agree. But I'm not sure Mark does.

On this I will defer to the wisdom of Mr. Greenfield. I believe that he is right. I think we should exhibit that trait that best suits the needs of the client at the time. If that means being empathetic for the client and trying to get the prosecutor to do the same, then we should do just that. If that means we should take an aggressive/ ruthless approach to a cross examination of a witness to break his story, then so be it.

It can probably be summed up best by the comment by Norm Pattis to Greenfield's post. "Call the quality both writers admire "heart" and their disagreement disappears."

So, where's your heart?

What's better?

It has been said many times that to defend someone you must have a certain amount of empathy. Many have said defense attorneys must have this, whereas few prosecutors have it at all. It seems like Mark Bennett made a comment like this not too long ago, but I don't know for sure. I do know Mark hates to be misquoted, so I won't guarantee that he is the one that said it.

If more prosecutors were empathetic to criminal defendants, the system might work a little better, or at least that seems to be how I remember the statement. I'm sure this is probably true across the board. I we were more empathetic to the guy next to us in the elevator, the subway, or the Starbucks, we might all be a little better off. Right?

But what about ruthless? Ruthless to get exactly what you want. Ruthless to not settle for less. Ruthless to take no prisoners, no matter what the cost to others. Ruthless to the point that everything is just collateral damage.

Now with those in mind, which should be the dominant character trait for a criminal defense attorney?

If you're hiring a defense attorney, do you want someone to feel your pain, or someone to take no prisoners in defending you?

The opponent

During the recent run-off election for the 213th District Court, there were several arguments for and against both candidates. There were those that said that because Lisa Callaghan was board certified she was the most qualified, whereas there were also those that thought because Judge Sturns had previous District Court and Court of Criminal Appeals experience that he was the most qualified. But I asked several people one simple question: on a day-to-day working in the courthouse, who would you want?

Actually, it's not quite that simple. There were several in the defense bar that adamantly did not want Callaghan as judge because they had dealt with her being a prosecutor and felt her to be unreasonable. With that thinking in mind, I asked other lawyers, both defense and prosecutors, this question: would you rather have someone you think of as an unreasonable opponent continue in their job, or would you rather they sat on the bench?

The premise behind this question was simple. I would contend that from a day-to-day, working an individual case basis, I would rather have someone that was my opponent (in my case, a prosecutor) elected as judge than remain my opponent. It makes the day-to-day work easier. My thinking was that the judge is only going to have a limited number of times to screw you over, whereas the opponent is more difficult to deal with everyday during the life of a case.

I explained this rationale to a number of fellow defense attorneys, and they weren't sure about it. For one thing, some contended that there are a number of ways a judge can screw you on a case. I agree. But for the most part, those can be grouped into two categories; 1.) the day-to-day management of the court (which screws everyone, not just you) and 2.) rulings at trial. From a cost-benefit analysis perspective, I'll take my chances.

Another thing that was brought up however was bonds. There are some, or several I guess, attorneys that make bonds for their clients. It was brought up that an unreasonable judge, rather than unreasonable prosecutor, could make getting bonds set for clients difficult. I agreed, although I don't do that so it doesn't really affect my thinking.

The surprising aspect of this was the fact that several prosecutors agreed with my premise. They agreed that if there was a particularly unreasonable defense attorney that they had to deal with on a daily basis, they would rather the opponent was elected to the bench than remain a defense attorney. Interesting, I thought.

So I guess the next time we think about who we want to be judge, we should really ask ourselves, who do
hate dealing with on a daily basis?

A Canard

So yesterday in a district court in Dallas, a day's worth of testimony revealed what many believed to be true. The email is fake. It appears everyone involved in the investigation of Judge Elizabeth Berry's alleged racist email believed the email was counterfeit and not authored either by Judge Berry or on her computer. As a result, attorney Lesa Pamplin withdrew her recusal motion against Judge Berry.

As you might recall, it had previously been alleged that Judge Berry of Criminal District Court No. 3 had sent a racial email to her court reporter Judy Miller. The email was alleged to concern another court reporter in the courthouse. Judge Berry had steadfastly said that she did not author or send the email.

Despite this denial, several members of the Tarrant County Black Bar Association issued a press release condemning Judge Berry. The release called for the immediate resignation of Judge Berry and the immediate termination of Judy Miller.

When that happened, noted defense attorney Jack Strickland resigned from the Tarrant County Criminal Defense Lawyer's Association claiming that such an action by a group of defense attorneys was reprehensible and against the very principles for which the Association stood, and should have been appropriately admonished. I agreed with that sentiment. Despite that, no action was taken that I know of.

The Tarrant County District Attorney's office investigated the email matter, and the results were on display in Dallas on Thursday before Judge Karen Gren Johnson who was appointed to hear Lesa Pamplin's recusal motions. During the testimony, it was learned that there were a number of inconsistencies about the email that seriously called into question the authenticity of the email. The font was wrong. The signature was wrong. Even the date of the email was an "impossible date" because it read Monday May 2, 2007. May 2nd was a Wednesday.

Following the testimony, Ms. Pamplin sought to withdraw her recusal motions, claiming she did know not beforehand the results of the D.A. investigation. However, I didn't hear anything about rescinding the demand that both the judge and the court reporter be out of a job.

This is the textbook definition of jumping to conclusions. It happens every day in every walk of life. But if there is one place it shouldn't happen, or at least not automatically, it is in the criminal justice system. Of all the people that should be willing to stop and think before jumping to a conclusion and trying to impose punishment before any proof is offered, it should be criminal defense attorneys. Unfortunately, that did not happen in this situation.

It would have been nice to see the Association come out with a stronger statement on the issue than it did, but I don't think I really have any problem with it per se. But what should not have happened was issuing a press release calling for the immediate resignation of Judge Berry and the immediate termination of Judy Miller. It was reactionary. It was careless. And as Jack Strickland intimated, it was against the Disciplinary Rules.

As Judge Berry's attorney Reagan Wynn said, this is something that will always hang over Judge Berry throughout her career. "This has been a complete nightmare for anyone, in particular an elected official, to be wrongly accused of something like this," Wynn said. What's worse? It was exacerbated by defense attorneys. We should know better.