The Matlock Blog

And the other shoe drops

Defense attorneys don't like prosecutors.  Prosecutors don't like defense attorneys.  Water is wet and the sky is blue.  What's new?

I recently allowed an anonymous prosecutor (no, I'm not saying who it is, ever.) to post the Top Ten Things Prosecutors Hate About Defense Attorneys.  In it, my helpful prosecutor discussed the things prosecutors, or at least this one, dislikes about defense attorneys.  It has created quite a stir.

First let me say that I hope to do a Top Ten list of the things defense attorneys dislike about prosecutors at some point.  But just not today.  Instead, I thought I would point everyone to a little something called the Texas District and County Attorneys Association Community.  This is a nice little online community posting board allowing prosecutors from around the state to comment on various subjects.  This blog is a subject.  I'm flattered.  I'm blushing now.

So it seems some of our steadfast Texas prosecutors have taken it upon themselves to post additional complaints about defense attorneys.  I felt, as always, compelled to relay these serious concerns of the government employees.  Because as is my nature, I can't shut up (just ask my wife) I thought I would add a little running commentary to the complaints.  They're in red. 

And without further delay, here are the additional complaints found in the largest complaint box of the largest group of government workers.  At least of which I know.  But again, what the hell do I know?

11. Don't show me photos of the defendant's kids. He had those kids when he committed the crime and he didn't think about them then.  Fair point.  Sounds like a rookie tactic.   But then again, defendants are people, too.   They have kids.  Since we talk about the alleged victim's kids, it seems only fair to discuss the defendant's kids as well.  You are looking for justice, right?

12. Don't bring me a letter from the defendant's pastor. Out-on-bond conversions mean about as much as a jailhouse conversion.  Seems pessimistic.  Almost narrow-minded.  Might want to go to Sunday School more.

13. Don't bring me a letter from the defendant's grandma. Really.  Fair enough.  But who doesn't like grandma?

14. Don't think it will work to engage in a philosophical debate about the goals of the criminal justice system. We'll have to agree to disagree on this one.  Probably posted by someone who, within the next five years, will be practicing as a defense attorney with a nice yellow page ad flaunting being a "Former Prosecutor."

15. (This probably falls under #10 of "Rudeness") Don't make an appointment for 1:30 and then breeze in at 2:30 without calling.  Common courtesy.  Kind of goes both ways though.  Don't tell me the tape or photos will be will be ready by a certain time only for me to find out from your assistant they aren't.  

16. Strive to make an appointment with me, instead of "just dropping in" and expecting me to provide discovery and discuss the case for several hours.  No problem there.  Again, common courtesy should rule.

17. Try to not respond with every plea offer I make with the phrase "How about 12.44"? It should be evident that if my offer bottom line is 45 years TDC on a child molester that I will not be considering 12.44.  Generally, I would be okay with this one.  But considering how many prosecutors make the statement "I'm open to other offers, but I'm not going to negotiate with myself" it seems a little naive.

18. Do not tell me that I should agree to a reduced bond or fine because of all the money the defendant had to pay you.  Nah, that $10 million bond set by the local yokel municipal judge seems appropriate.  I mean it is a State Jail Felony!

18a. Please also do not tell me that if your client bonds out he will use much of your fee money for a bond, and thus you need a massive reduction or a PR bond, particularly on a violent criminal.

Greg's Agg Sexual Assault of a Child case Rule: Please don't tell me the 5-12 year old victim is a hussy and a slut and that the victim was asking for it. It actually goes over worse with me than it would with a jury, and you know you'd never say those things in front of 12 good and decent people.  Speaks to a fundamental difference between defense attorneys and prosecutors that I feel obligated to post about later.  

19. Never start a plea negotiation by telling me what they always do in some other county.  And I'm arrogant?  We can all learn something from someone else, right?

20. Never tell me how to do my job based on your experience as a prosecutor.  Believe me, you don't have to worry about that from me.

21. Know and understand the law of parties and how it applies to your client's situation.  Hello pot.  I'm kettle.

22. When telling me what your client will plead to, please do not preface that with a reference to your client's cadre of jailhouse lawyers and how they are telling him to threaten a greivance against you. I won't feel sorry for you because there are plenty of prosecutor jobs out there if you don't like being a defense attorney.  I'd rather kick my own ass.

23. Do not take my exhibits during trial. You had plenty of time to make your own copy of the photographs. If you want to admit something into evidence, admit your own stuff.  Wah!!  You don't want me to play with all the stuff you admit during trial to use to my benefit, you should think about that before you put it into evidence.  Boo hoo.  Oh, I feel so sorry for you!  Grow up.

24. If you need a reset because your client hasn't fully paid his fee, just say so. Don't make up lies and excuses.  Again, lying is bad.

25. If you have proof that the defendant is innocent, provide it early in the process. Medical records. An alibi. Bank records. Whatever. Prosecutors exonerate more people than any Innocence Project has ever touched. We do so through dismissals, no bills and downgraded charges.  I think this falls under Bennett's Nasty Little Surprise doctrine.  But I'm reasonably certain allowing an innocent defendant to plead to a lesser charge is not exonerating him.  Maybe that word doesn't mean to you what it means to me.  Or Webster.

Enjoy.

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.

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.

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 visit

I hate going to the jail to visit clients. I'm not sure there are too many attorneys that actually enjoy it. The bureaucracy. The waiting. The smell. There are any number of things to hate about the trip. Of all the types, however, one is the most uncomfortable.

There are the initial meetings which aren't too bad. You go in, you wait, you meet your client, each on their own side of the glass. You exchange a few pleasantries and then begin to get their side of the story. At the same time, you attempt to quickly gain your client's trust by explaining the law to them so they will actually see you, and not the local jail house lawyer, as the real lawyer.

There are also the maintenance visits. These involve seeing a client that is in jail but whose case has not been disposed. Perhaps, we are simply waiting on a court date. Maybe we are going to trial. Either way, generally this involves a visit to a client to assess the progress of the case. The goal of these visits is to just let the client know that I am still working on his case and that all is not lost.

Then there are the preparation visits. These are essentially the pre-trial preparation meetings I would otherwise have in the office except that my client is in jail. These are difficult. It is hard to prepare for a trial in the environment of a jail. Let's just say meeting with a client in the Tarrant County Jail is not conducive to a good pre-trial working environment.

But the one type of visit that I hate is the post-verdict visit. This is the one that occurs after we have gone to trial and lost. It's uncomfortable. For both of us. I try to meet with every client pretty quickly after the verdict to address appeal concerns. I try to do it quickly because the one thing an inmate has plenty of is time. They are no different than I am and the last thing I want to do is visit someone in jail after they have had two weeks to do the same type of second-guessing I have.

At this meeting, I try to keep it as focused on the legal issues as I can. I try to make it as quick yet effective as possible. Neither of us really want to see the other, but generally for different reasons. It's the only visit to the jail where I can't think to complain about the smell.

The presumption of not guilty?

About a week or so ago a friend and I were discussing various things we found important to stress at trial. One of them happened to be the presumption of innocence. I then asked, rather tongue-in-cheek I suppose, that if it really was the presumption of innocence then why don't our verdict forms read "Innocent" and "Guilty" instead of "Not Guilty." His response was simply that the Framers got it wrong. (And yes, I know there is no place in the Constitution that guarantees the presumption of innocence.)

As with many of things he said, I dismissed it. But over the last week or so, it has puzzled me. Why do we have the presumption of innocence if that presumption isn't reaffirmed when the government fails to meet it's burden?

I suppose we have all used the voir dire tactic I've heard referred to as "The Choice." We ask the panel during the course of our discussion about the presumption that if they were given a choice before trial and had to vote either 1.) Guilty 2.) Not Guilty, or 3) I don't know, I haven't heard any evidence yet, how would they vote?

Invariably, there will always be someone that votes Number 3, I don't know I haven't heard any evidence yet. The idea obviously is to stress that the defendant is innocent until the government meets its burden. It's simple, yet can be very effective.

Why then does the tone shift from being innocent to being not guilty. Some might say they are two sides to the same coin. Obviously, that can be true, but also not. Anyone that does this job for more than a week represents someone that is not factually innocent.

The more I have thought about this, the more I am convinced that perhaps my friend was right. Maybe the Framers got it wrong when they used that terminology. Well, maybe not entirely wrong, but it just doesn't work anymore.

I remember writing several papers in college on the concept of how the idea of America no longer works in America. Democracy, as we know it was a good fit for colonial America, but as the country has expanded in both land and population, its effectiveness has waned.

As an aside to the innocence argument consider this. Democracy is, by its very definition, based upon the will of the people and their respective ability to govern themselves. When the people involved are few and rather homogenous, that can be easy, relatively speaking. But when the democratic population is as extensive in both population and diversity, it becomes more and more difficult to govern based on the will of the majority.

Couple that with the idea that democracy heavily relies upon the character and moral fiber of its citizen-governors to, for lack of a better phrase, do the right thing. Not only for themselves, but for the common good.

Does anyone actually think this is modern-day America? I don't. The America we live in would be a foreign country to the Framers. What does this have to do with the presumption of innocence? Everything.

In the time of the Framers, it was a widely held belief (probably because it was true) that innocent people were sent to prison for things they simply did not do. They were innocent. This is not to say people did not commit crimes. Rather, it was much more likely that an innocent person would be sent to prison when they were innocent than perhaps today. The Dallas D.A.'s office notwithstanding.

So the term innocent was perhaps best-suited for the times. But boy, those times have changed. We are now a culture that lives its days around the criminal justice system. The average everyday person might well never find themselves caught up in the system, but they are inundated with it everyday.

Whether it be Matlock reruns during the day, the lead story on every news cast, or the host of real-crime dramas, or dare I say networks (hello CourtTV), the average person has a view into the world of the criminal justice system. Or so they think.

Of course as we all stress to jury panels, it is no where near as interesting in a real courtroom as it is on TV. But this is the society we live in today. A culture that shows the justice system all the time. And what do most people take away from it? Technicalities.

I would imagine that if asked, most people would respond that most of the time criminals get off on technicalities. That they did they crime, but a slick lawyer kept out evidence, or a witness lied, or was killed, or whatever. Criminals get off on technicalities. It's the way the system works.

Well, the next logical extension of that argument is that if a criminal only walks because of a technicality, then he came to that trial guilty. Of course we know that isn't necessarily true, but is it what the public believes? I think it might be.

So why don't we use innocent to describe those on trial outside of just picking a jury? I don't know. I suppose it has to do with perception. Maybe it just easier. Maybe we are simply playing to the lowest common denominator. Either way, it will always be important for jurors to consider innocence rather than technicalities.

Welcome prosecutors...and judges

I would everyone to give a big hello to all of the prosecutors and judges that have joined us. Over the last several days, maybe a week or so, I have noticed quite a bit of traffic coming from Tarrant County computers. So either the women in the clerk's office find me particularly hot (not as far-fetched as you might think), or we have a few prosecutorial visitors. As for the judges, I can only surmise that at least one has read lately simply because he came right and told me tonight at a Republican meeting. Thanks for coming.

Oh, to be a judge: who needs the fashion police when you have the fashion judiciary

And people say I'm weird because I like bowties. Puh-lease. At least I don't wear ascots.

I read this on Anne Reed's Deliberations blog about her local prosecutor who decided he should wear an ascot to court. This is just high comedy.

Maybe it's me, since I'm from Texas and all, but seriously who wears an ascot? You have to keep in mind this is some question from a guy who can tell you not only how to tie a bowtie, but the different shapes they typically come in and why or why not to buy a certain shape.

Apparently Mr. Warren Zeir, local Milwaukee prosecutor, decided to appear in Judge Sosnay's court wearing just an ascot. Well, not just an ascot. He had a suit with it. I mean otherwise that would be ridiculous. Not that it's not anyway.

Apparently, this particular Minnesota Wisconsin judge fancies himself quite the dresser and has a rule that only neck or bow ties are allowed for the gentlemen appearing in his court. According to the Wall Street Journal Law Blog and Deliberations, this was contemptuous to the judge.

Hell, it's contemptuous to me. And I'm not a judge. Yet.

When being an aggie isn't bad enough: The story of the less than ideal victim of crime

Two Texas A&M football players were indicted for two counts of aggravated robbery recently. The victim? A local drug dealer. Aggies. Some times you gotta wonder.

Apparently, Yemi Babalola, 21, and Brandon Joiner, 18, decided it would be a good idea to rob a drug dealer in an apartment on November 29th. The two players, Babalola a junior offensive lineman and Joiner a freshman defensive end, have been suspended indefinitely until the cases are resolved.

According to the Texas A&M SID, the two will remain suspended until "cleared of any wrongdoing." The Associated Press reported that neither had an attorney.

Paging Stephen Gustitis. Attorney Gustitis to the defense of Aggies, please.

And just for the record, Texas Tech 35. Texas A&M 7.

The games we play

Yesterday I posted about how defense work is a lot like poker. I received an email from someone not in the legal profession if I thought poker was the best possible analogy to defense work. I don't think it is. But I decided to throw it out there for my five, or six, maybe seven with the emailer, readers.

What is the best analogy in either games or sports to criminal defense?

Some thoughts include:
1.) Poker
2.) Tennis
3.) Boxing
4.) Golf
5.) Twister

Let me know what you think.