The Matlock Blog

Client Control

I love this phrase.  It shows a complete lack of understanding of the justice system, as well as the attorney's role in it.  It makes me laugh.  It makes me cry.  Well, maybe not cry.

All too often I hear this phrase in the context of two situations.  The first is from another defense attorney who claims I should exhibit more client control because my client won't do "what's best for everyone."  Apparently, there are those attorneys who think that if a codefendant's choices cause problems for their client, that the attorney should reel them in, so to speak.  Retards.

We all know that the ultimate decision-making authority in a criminal case rests with the defendant.  The defendant pleads guilty or not guilty, not the defense attorney.  The defendant chooses to testify, not the defense attorney.  And the defendant chooses to cooperate, not the attorney.  This is really not a hard concept, and yet time and time again it is lost on some attorneys.  Sometimes, it's the salient details that are lost on people.

About twice a year in federal court, I will get a phone call from a defense attorney who represents a codefendant and wants to know when I'm going to control my client.  Generally, it's because my client has elected to go to trial, and by doing so, the other attorney thinks his or her client will ultimately be harmed by that choice.  They "urge" me to be a better attorney and control my client.  My response is generally that I am a better attorney because I let my client make his choice.  This generally doesn't go over well.

The other situation involves prosecutors, and it generally goes something like this.  The case rocks along through negotiations until it gets to the point of going to trial.  The prosecutor wants to know why my client doesn't want to take the deal that was offered.  When I explain that the client has decided he or she doesn't want to deal, I usually get a response of "That's a pretty good deal for him, you should really take it.  It won't get any better."

What is lost on the prosecutor is that I don't decide to accept or reject deals, rather my client does.  I don't know if it is that prosecutors don't want to have to try the case, think that I don't fully advise my clients, or just feel that they are so magnanimous about the case, but they lose sight of the fact that it's just not my call.

I explain everything I can about the consequences of accepting or rejecting a given deal with every one of my clients.  But at the end of the day, they make the choice, not me.  

I often get clients who will flat out ask me what they should do.  My response is always the same; "It's up to you.  You're the one that has to live with the consequences, not me."  It's pretty much a standard answer.  I tell them that I will do what they want me to do and tell the prosecutor what they want me to tell them (within reason of course), but that they have to live with the choice.  At the end of the case, I'm still going home to watch the Tigers play, drink a beer and play with my son.  

Now don't get me wrong.  Not all attorneys and prosecutors are like this.  And by no means am I complaining about the offers I receive on various cases. But it strikes me as odd that someone thinks I'm not doing my job because I don't strong-arm my client  into accepting a deal they don't want.  I think it's just the opposite, actually.

But what the hell do I know?

Will coattails be a bad thing?

In the wake of the death of longtime District Attorney, Tim Curry, Tarrant County will have a new District Attorney for the first time in 36 years.  Who will it be?  At the present time, longtime first assistant Alan Levy is acting D.A.  But that is only temporary.

Under Texas law, Governor Rick Perry is to appoint Curry's replacement.  However, Curry's term was set to expire next year, so whomever is appointed will likely go right into election mode if they want to hang on to the spot.  But the big question is who will the Governor appoint?

The name most often thrown out by those in the criminal courts is former judge Bob Gill.  Judge Gill resigned the bench almost two years ago to take a position within the D.A.'s office.  Was that to position himself as the heir apparent?  Many believe so.  But will he get the appointment?

There are a number of other potential candidates for the primary election, currently set for March of next year.  Let's dispense with the Democrats first.  If current Dallas Assistant District Attorney, and former candidate for the position, Terri Moore wants to run, there should really be no one else on the ticket.  If she doesn't want it, who knows who the Democrats will mistakenly put on the ballot.

As for the Republicans, the list will be lengthy.  Aside from Bob Gill, there are current District Court judges Sharon Wilson and George Gallagher.  However, there appear to be a couple of interesting possibilities.  Current County Criminal Court judge Phil Sorrells' name has been mentioned as well as local attorney Kirk Claunch.  

Either Judge Wilson or Judge Gallagher, or for that matter former judge Gill, would likely make excellent District  Attorneys.  Their knowledge of the law is unquestioned and it would be hard to make the case that they are not well-qualified.  But as for Judge Sorrells and Kirk Claunch?  I don't know. 

Judge Sorrells' court is often the poorest-reviewed court in all of Tarrant County by attorneys.  He routinely fails to show up for court at even close to the scheduled time (of course there are other judges that do this, but I digress).  So to take the job as the administrative head of the county's chief law enforcement agency seems a stretch.  As for Claunch, honestly I don't even know who that is.  I'm sure he is a nice guy, but I've never heard of him.  

But what about this?  Former Assistant District Attorney, current head of the Trinity River Vision Authority, and son of longtime U.S. Congresswoman Kay Granger, J.D. Granger?  Could he be the appointment to fill Curry's spot?  

Whomever is appointed will necessarily have an inside track to the 2010 election.  At least that is the general rule of thumb in politics.  However, Governor Perry is also up for reelection in 2010 as well, and this will be anything but a cake-walk.  Governor Perry is up against Senator Kay Bailey Hutchinson.  

There are many inside the Republican party that believe Hutchinson can unseat the governor next year.  She is extremely popular, and perhaps more importantly, Governor Perry is beginning to be viewed as a bit of a extremist within the party.  The gubernatorial race could have an enormous effect on the Tarrant County race.

Imagine this scenario.  The governor appoints J.D. Granger to shore up support from his mother, Congresswoman Granger.  Seems like a shrewd political move.  But now Granger is directly tied to Perry, and any opponent can/ should point out that Granger is nothing but a political crony as the gubernatorial race heats up.  It could be devastating for Granger's future political career to have been appointed by a sitting governor only to lose in the primary.  

But this is true for anyone appointed by the governor.  They will be directly tied to a relatively unpopular governor who himself is in a nasty reelection contest against a more popular senator within the same party.  

Whomever receives the appointment may wish they hadn't.  It might well be more of the burden of an albatross than the benefit of coattails.

But what the hell do I know?

Ten Rules when Hiring a Criminal Defense Attorney

For most people, being involved in the criminal justice system is likely the most stressful, intimidating, and potentially ruinous situation within which they have ever found themselves.  People like this have likely never had a use for a criminal defense attorney, and often this is obvious in the manner in which they hire their attorneys.  They don't know where to turn, and make a rash decision that will dramatically affect their case.

Of course, there are those that are no strangers to the courthouse, who seek only the path of least resistance when it comes to their cases.  These people either assume they will receive a court-appointed attorney, or manage to scrape up the $500 for a felony case.  This little bit of advice is not for them.  

For those that actually care about the outcome to their case, and want to ensure the best possible representation, allow me to provide another Top Ten List;  The Top Ten Things to Keep in Mind When Hiring a  Criminal Defense Attorney.  

1.  Take advertising with a grain of salt - Many lawyers advertise.  Many don't.  Some advertisements are good and ethical, while some are, shall we say, ethically-challenged.  (Can anyone say 1-800-DISMISS?)  Just remember the point of advertising is to get you in the door, not necessarily as a barometer of competence.  At the very least, most attorney have websites now.  As a rule of thumb, they should be more informative about the law and the attorney than bragging.

2.  Be prepared and on time for your consultation - Nothing is more aggravating for a lawyer (or maybe it's just me) than for a potential client to show up 30  minutes late.  If a client can't get to my office to discuss his case on time, what are the chances they do what I need her to do?  Like show up to court on time?

3.  Never hire the first attorney to whom you speak - Take your time.  Shop around.  Get as many different opinions on your case from competent counsel as possible.  The more you shop around, the more you'll realize which are good and which are not.

4.  Never hire an attorney in the hallway of the courthouse - This never ceases to amaze me.  Why would anyone trust their case to an attorney you simply give $200 in the hallway without really speaking to the attorney about their case?  Big mistake.  Huge.

5.  Do your homework - You should be able to find out something about pretty much every attorney you are thinking about visiting.  If you do nothing else, you should Google them and look them up on the State Bar website.  There, you can input their name and at least find out how long they have been licensed in Texas.  Plus Googleing people is fun.

6.  Always tell your potential attorney everything -  How can you expect someone to give you advice on a situation if you don't fully tell them about the situation?  Not telling your attorney that you have four prior felony convictions, you're on parole/ probation, you made a written statement to the police, or you consented to the search will drastically affect the advice given.  It's in your best interest to be honest about everything.

7.  Be honest about your situation - This applies to not only your case, but your financial situation.  If you walk into a lawyer's office and have a budget of $10,000, then at some point that should come up in the discussion with your lawyer.  Tell her your budget.  If the lawyer can work within that budget, she'll tell you.  If she can't, she'll tell you.  If she's willing to take whatever money you have, run. 

8.  Don't haggle - This is a touchy situation, I realize.  But you're not buying a used car.  (Ok, I won't make the joke that some lawyers dress like used car salesmen.  But I think I just did.)  The point here is to remember you are paying for the attorneys time, effort and advice.  Do you really want the attorney to realize that saving money is more important than the merits of your defense?

9.  Never let an attorney promise you a result - Anyone that does this, is absolutely lying to you.  If you don't believe this, just ask everyone on cell block D.  Any attorney that promises a result has no idea what's going on.  The only promise an attorney should make is that he will do his best for you.

10.  Realize you get what you pay for - There is a reason an attorney will charge you only $500 for a felony offense.  It's called they don't have many clients and they need to pay this month's rent; or last month's.  You are paying for the attorney's skill.  Do you want a $500-skilled attorney or a $5000-skilled attorney?  It's up to you, but if you're in that situation, don't be mad that you go to jail after hiring the $500 attorney.  You get what you pay for.

But what the hell do I know?

Because, in the end, we're all family

Just as with sports I suppose, the legal profession has its rivalries and animosities.  But at the end of the day, win or lose, we know we will see each other on another day, in another court, on another case.  The players come and go, but those of us that do this for a living remain.  Remain to fight another day.

There are prosecutors that I deal with that I don't like.  I know there are prosecutors that don't like me.  And you know what?  I'm fine with that, and I know they are too.  I respect the vast majority of prosecutors I deal with.  In fact, don't tell anyone, but I actually admire many of them.  With apologies to every other prosecutor I have dealt with, I respect one Tarrant County prosecutor more than any other.

In September, 2003 a 16-year-old boy was found shot to death in a construction site in south Fort Worth.  Three days later, a classmate was arrested and charged with his murder in juvenile court.  The firm for which I worked at the time was hired to represent the juvenile client, and as it turned out, that meant I represented the client.

There was some very damning evidence against my client.  There was the gun, and the statement in which my client implicated himself in the shooting.  However, I felt the statement was obtained illegally after my client had asked for a lawyer during the interrogation.  

After a suppression hearing, the court suppressed the statement and the gun.  So did the Second Court of Appeals.  The Texas Supreme Court, in an historic decision (the first time the Court had ever affirmed suppression and only the second time they ever cited Miranda), affirmed the suppression of the statement, but let the gun in.  

After five years of battling in the Texas appellate courts, the case finally came back to the original juvenile trial court.  My client was certified as an adult (I thought incorrectly, but what should I think?) and the case was sent to adult court.  After five years of research, writing, arguing, negotiating, and battling, this case was finally in a position to be resolved.

Five years ago, I don't know where WFAA ABC Channel 8 reporter Craig Civale was, but I know he wasn't here in Texas.  Because of that, I understand that he might know all of the details of this case.  But, since he was a former "investigative reporter," I would think he could do his research.  But I guess that would be asking too much.

This particular case was the first in Texas history in which the State sought a pretrial appeal of a juvenile suppression order.  As is typical with most things that happen for the first time, it was somewhat time-consuming and hard to predict.  It took a while.  Apparently, it didn't happen fast enough for Mr. Civale.

Craig Civale reported a story for WFAA Channel 8 in which he claimed that nobody has really done enough in this case.  I guess five years of arguing the finer points of constitutional confession law throughout Texas appellate courts doesn't mean much to the small-time investigative reporter.  

The bottom line is this "reporter" hung out a Tarrant County prosecutor to dry.  The prosecutor on this case (and I won't say his name because I haven't spoken to him about this, but you can see him in the clip) is the prosecutor I respect the most.  To say that he has been "dragging his feet" in this case is ridiculous.  He, like myself, has had boxes upon boxes of this case in his office for the last five years.  He could easily have passed it on to the next prosecutor out at juvenile to eventually handle after the appellate courts were done with it.  He didn't.

I can't say I dislike the media, because after all, I enjoy seeing myself on TV or reading my name in the paper.  But is it too much to ask that a reporter actually research the issues of a case before he reports that "a murderer could walk free?"  (This was his "concern" when he called me for comment before the story aired.)  

I have a saying that "If I did my job as well as they did their job, I'd be disbarred."  Craig Civale's "investigative" reporting in this case should get him disbarred.  But what the hell do I know?

No Honor Among Cops

I have a client that hired me over a year ago because she felt that her former employer would try to retaliate against her for making claims of improper behavior in the workplace.  So, over the last twelve to fifteen months, I have tried to either curtail any potential criminal charges being filed, or at the very least try to find out exactly where the "investigation" was, so as to advise my client accordingly.

Despite dozens of phone calls to the so-called detective who was supposedly handling the "investigation," I could never get an official, straight answer.  I finally spoke with another detective who assured me the police would have no problem with a "walk-through" to take care of any potential warrant that might issue for my client.

A walk-through is where, when there is an active warrant for someone, the police agree to allow that person to turn themselves in to the local police to take care of the active warrant.  This eliminates the possibility of the client simply being arrested at any time, and it serves to generally control the situation.  This is the scenario that was agreed upon by myself and the particular police department in this case.

Despite the dozens of phone calls, and the constant assurance that my client, a 30-year-old pregnant mother of one who has never been in trouble in her life, I found myself questioning the veracity of the police.  I know.  Shocking.  (After all, it is the police that stopped me not once, not twice but three times because I seemed to be in the wrong neighborhood and they wanted simply to search my car!)  It is certainly no secret that I am not exactly the biggest fan of the police, nor I'm sure, are they my biggest fans.  Oh well.  I'll deal.  

Yesterday, the police arrested my client for an active warrant that had been outstanding for over a month on my client.  That's right.  A warrant that was active for over a month despite being "assured" (which I guess is cop-speak for "lie") that my client would be afforded every opportunity to turn herself in and avoid the embarrassment of being arrested in front of her friends and neighbors.

I suppose I could simply be the cynic and say this is what I get for trusting the police.  I mean, after all, these are the same people that have no problem planting evidence and anally raping suspects.  So, today, I got the opportunity to explain to my client why having me as her attorney was not a complete waste of time and money.

So now that the police have had their fun sending seven officers in four patrol cars to arrest a 30-year-old pregnant woman, the scene shifts to the courtroom.  There are no targets to shoot at, there are no tasers to prepare, and there are no batons to lube up.  Welcome to the courtroom, where if you don't know what you're doing, you can get hurt.

I look forward to round two, especially with the "detecive" who is supposedly investigating this case.  I wonder, with this in mind, if the police will think twice about the way they behaved in this case.  

I doubt it.  By what I've seen, I'd be surprised if the cops bothered to think once. 

The economics of criminal defense

The economy is slumping.  We just learned that we are in a recession, and in fact, we have been for a while now.  People are out of work.  Plants are closing and companies are folding.  (Hell, Circuit City opened a new store and then closed it within the same month a few miles from my house.)  The future is bleak.  

What does this have to do with criminal defense?  Potentially, quite a lot.  There is a general feeling that when times are hard economically, crime rates go up.  Generally, from a purely economic perspective, that would seem like a good thing for the criminal defense practitioner.  But when the economy is really bad, doesn't that mean people have no money?  If they have no money, doesn't that mean they can't afford quality representation?  Yes, and no.

Economies are cyclical.  That is, the good times and the bad times come and go.  Being a criminal defendant is hopefully not cyclical.  Hopefully, being a criminal defendant is only going to last long enough to either clear your name or resolve your case in a way you can live with.  However, if you choose your representation based solely on economics, you might well find yourself in another situation.  Incarcerated.  Perhaps for a very, very long time.  

This can be especially true around the holidays.  Too many times, I get a phone call from someone after the holidays that has put off hiring an attorney until after the holidays so they can use their pre-holiday money for presents.  I certainly applaud the effort to ensure the kids or significant other have a memorable holiday season, but what's more important?  A new Wii for the kids, or seeing the kids for Christmas during the next twenty years?

Too many times I see people that wait too long to hire an attorney.  For whatever the reason (many times it's money) the person puts their future attorney in a bind because the person doesn't give their attorney the time he or she needs to successfully defend them.  Mounting a defense to a criminal charge takes time.  It takes effort.  Waiting until the last possible moment to begin the defense is really not the best move.

There are times in life when choices have to be made.  Generally, those are not the best times in our lives.  Being a criminal defendant in a "recession" is one of those times.  Making the wrong decision at this time, can result in potentially life-altering consequences.  

It is never a good decision to postpone a potentially life-altering decision for economic reasons.  If you are charged with a crime,  get representation early.  Don't worry about this holiday season or this recession.  After all, if you screw up this decision, you won't have to worry about the next holiday season or recession at all.  

But what the hell do I know?

Bailout?

This is an interesting story.  Tarrant County District Clerk Thomas Wilder is being sued for allegedly eliminating the jobs of Peter Hinojosa who ran against Wilder in the Republican primary with the help of Bobby Cook.  The lawsuit is against both Wilder and Tarrant County.  But that's not really the story.

The real story is what Tarrant County is paying to defend Wilder.  In Hinojosa's original complaint, Wilder is sued in his official capacity as District Clerk.  However, on June 18, 2008, Hinojosa filed a Motion to Amend Original Complaint seeking to drop the allegations against Wilder in his official capacity and proceed against him solely as a private individual.

Tarrant County Commissioners originally authorized $50,000 to pay his attorney, Henry Robinson of Fort Worth's Kelly, Hart & Hallman, to defend him.  However, that is apparently not enough.  The Commissioners have now authorized another $50,000 to defend Wilder.  The money is coming from the professional liability fund of the county, according to Wilder.

Of course, Wilder is being sued in his individual capacity.  Not as the District Clerk.  Despite that, the citizens of Tarrant County are paying to defend Wilder.

I don't know Wilder, but being relatively active within the Republican Party, I have heard stories of just how much of a ruthless political boss Wilder is.  (I did however see Mr. Wilder berate an election officer during early voting this year for no reason whatsoever, all the while throwing his name around as though he is somebody.)  Of course, I don't know anything about the case, so I don't want to say it is or isn't likely Wilder did what he's accused of doing.  

I'm just glad we all get to pay $100,000 to defend Wilder for being an ass while those of us that represent indigent criminal defendants are happy to make a couple of hundred bucks when getting murder cases dismissed.  

The Typical Fort Worth/ Tarrant County DWI

Driving While Intoxicated is perhaps the most unique criminal charge in Texas, and perhaps the most prosecuted. A DWI is essentially an opinion crime; that is, it is the opinion of the officer whether a person is charged with DWI,and the jury as to whether to convict.

Contrary to popular belief, the police cannot stop a person unless they have a justified reason for doing so. Although that sounds like a benefit to people, in reality, the police can often justify virtually any stop of a citizen. In a DWI case, the most often cited reasons for the stop are weaving between the lanes of traffic, driving too fast (or too slow), and failing to signal. Once these infractions occur, the office may stop a citizen and begin his investigation into a possible DWI.

Once the officer has stopped a person, they will typically ask for the person's license and insurance information. Although they are certainly seeking to make sure the person is legally driving, they are also on the look out for what are referred to as "clues", or indications of intoxication. In this context, the clues might be having difficulty removing the drivers license, or fumbling the license or insurance card, or not being able to remember where they are. Although the can be honest mistakes, in the mind of a police officer looking for a DWI arrest, they indicate intoxication.

Once the officer believes the person is intoxicated, he will have the citizen step out of his car and typically walk to the back of the car. This is done for several reasons. First is the safety everyone involved. However, the primary reason is so the officer can have the suspected DWI offender stand in front of the patrol car because the car is typically equipped with a video camera. This video camera was activated before the officer ever stopped the citizen. The point of the camera is to record everything that happens during the DWI stop. This video can prove to be crucial, because many times it is the critical piece of evidence in a DWI trial. After all, what better way to convince a jury that the citizen was intoxicated than to show a movie of what happened?

Now that the suspect is positioned in front of the patrol car, and in turn on video, the officer will begin to administer the Field Sobriety Tests, or FSTs. These test were designed by the National Highway Traffic and Safety Administration. Although based on scientific principles, they are anything but scientific. The point of the tests is to determine the existence of "clues" or signs of intoxication. There are three FSTs that are typically administered to a DWI suspect. They include the Horizontal Gaze Nystagmus Test, the Walk and Turn Test, and the One Leg Stand Test.

The Horizontal Gaze Nystagmus Test is essentially an eye exam. The test is designed to determine the existence of nystagmus of the eye. Nystagmus is the uncontrollable movement, or jerking, of the eye. Police officers, in their limited training, are taught that alcohol causes nystagmus. While this is true, there are also virtually dozens of other reasons why a person might exhibit nystagmus that have nothing to do with the consumption of alcohol. Because of this fact, the officer is trained to evaluate whether a person is a good candidate for the HGN test. However, all too often this is either not done correctly, or not done at all. Additionally, there are a number of other factors that might cause a person to exhibit nystagmus. One such reason is the strobe lights atop most patrol cars. Many times, the officer forgets to turn the lights off. When that happens, the test is invalid and should be suppressed by the court.

The next test administered by the officer is typically the Walk and Turn test. This test is not only designed to test a person's balance, but also their ability to follow directions. The officer first has the person stand in the instructional position. This is standing, arms to the side, one foot in front of the other touching heal to toe. The officer will tell the person to remain in that position until told to begin the test. The officer will then illustrate the test which involves taking nine heal-to-toe steps on an imaginary line. At the conclusion of the nine steps, the suspect is to turn by taking a series of small steps, and then returning down the line with another nine heal-to-toe steps. During this test, the suspect should keep his arms at his side and county out loud the steps taken.

The final FST offered by the officer, is the One Leg Stand. It is essentially exactly what it sounds like. The suspect is to choose a leg to stand on while raising the other leg approximately six inches off the ground. During the test, the citizen is to keeps his arms to his side while counting out loud until told to stop by the officer. During this test, the officer is looking for clues which typically include putting the foot down, not counting out loud, using the arms for balance, or swaying.

After a person has been arrested for DWI, they are then transported to the local jail. However, because DWI is unlike any other crime in Texas, the person is typically not simply placed in a general holding cell until bonded out. They are taken to a dedicated DWI room which contains a number of unique items. Typically, this "Intoxilyzer Room" contains the Intoxilyzer 5000 which is the breath test machine. Additionally, the room is equipped with another video camera as well as lines on the floor and wall. The purpose of the camera is to record the suspect's behavior and performance. The lines on the wall and floor are used as indicators of swaying or stepping off the line while performing the FSTs, which are typically offered again. The breath test machine is offered by the officer in an attempt to obtain a blood alcohol content. In Texas, the legal limit is .08, therefore if the officer can obtain a breath test score higher than that, they have a must stronger case.

Texas is considered an "Implied Consent" State. This means a citizen, by accepting a Texas drivers license, is impliedly consenting to a breath or blood test if requested by an officer. Despite that, a citizen stopped and even arrested for DWI can refuse to submit to a breath or blood test. Additionally, a citizen can refuse to perform any FSTs. However, there are obvious risks associated with this choice. If the person refuses to perform any tests, he will almost certainly be arrested for DWI. However, there will be little evidence with which to convict him. Also, by refusing to provide a breath or blood sample, a citizen can be subject to a drivers license suspension as a result. However, again, there will be no test result available at trial.

A DWI trial typically comes down to two pieces of evidence; the DWI video and the breath or blood test result. Because DWI is essentially an opinion crime, the video is used to convince the jury that the defendant was intoxicated by showing his or her performance of FSTs and overall behavior at the scene. Obviously, a breath test result is used to demonstrate the person's blood alcohol level was above .08. The less evidence available to the prosecution is generally better for the defendant. When there is no test result, and a jury is left only with the DWI video, many times the jury will simply compare the appearance of the defendant on the tape with what that juror has seen in the past. This can, of course, be a tremendous help to the defense.

Under Pressure

Under Pressure

“Pressure pushing down on me
Pressing down on you no man ask for
Under pressure - that tears a building down
Splits a family in two
Puts people on streets”

Queen with David Bowie.

Democratic candidate for Criminal District Court Number Two doesn’t like the way things are being handled by the sitting judge, Wayne Salvant. That’s good to know. At least she isn’t running to be judge just to be judge.

Ms. Tolbert, whom I’ve never met by the way, has a series of YouTube “interviews” available. They appear to be radio interviews which were visually recorded. The respective “topics” are “How Tolbert is different,” “All Judges Are Republican,” “Judge as a Referee,” and the video above, “How Cases are Tried.”

There is also a video of a pancake breakfast fundraising, but although I tried to watch it, I couldn’t finish it. It was so mind-numbingly boring I had to turn it off. It didn’t even have background music. I mean, come on! But back to “How Cases are Tried.”

First of all, I don’t think the title of the video has anything to do with the substance of the video. Ms. Tolbert doesn’t really discuss trying criminal cases in Criminal District Court Two, but rather seems dissatisfied in the manner in which Judge Salvant appoints attorneys to represent those charged with State Jail Felonies.

It appears Ms. Tolbert is uncomfortable with the idea of what is referred to as a “Jail Run.” It is generally more common in misdemeanor courts than felony courts, but it certainly happens. Essentially a jail run is when a number of incarcerated defendants who have yet to be able to post a bond and have no attorney to represent them are brought to court and appointed lawyers to represent them. No problem so far.

However, often what happens is that the appointed attorney is “expected” to resolve the case that day. In a misdemeanor case, this is generally accomplished by pleading the defendant to time served. I have personally experienced this, as I’m sure most criminal defense attorneys have.

The problem arises in felony court. Felonies, even State Jail Felonies, are serious offenses. While the person cannot be sent to TDC, they can be sent for up to two years to a Texas State Jail Facility. This time is day-for-day, meaning there is no credit for good time or any type of parole. So being confronted with a new State Jail Felony case can actually cause some problems because it is a lot for the defendant to understand in the extremely short amount of time he has spoken, in fact known, his newly-appointed lawyer.

Ms. Tolbert believes Judge Salvant has engaged in this type of behavior by appointing attorneys (Ms. Tolbert refers to them as “favorite lawyers”) and “exptecting” them to dispose of the case that day. This is, as Ms. Tolbert says, referred to as Same Day Disposition. And Ms. Tolbert is right, it shouldn’t be a practice to engage in this type of appointment process.

The problem here is this. The judge doesn’t negotiate the plea bargain in the case. The judge doesn’t meet with the defendant and ascertain what is best for the client. The judge doesn’t represent the defendant. The defense attorney does.

Of course, it can be very difficult for any attorney to stand up to a judge in that situation; actually, in many situations. But at the end of the day, that is our job. We can complain about. (God knows we do.) We can go on and on that the judge doesn’t understand what it is like to be a private defense attorney. (The majority of the time they don’t.) And if it bothers us enough, we can refuse to accept appointments so as to eliminate the possibility of it happening to us again. (That is an option because no one is required to represent court-appointed clients.) But it doesn’t change the fact that it is ultimately up to us.

If an attorney is appointed to a client and the judge expects that case to be resolved on the same day, there is only one question; what is in the client’s best interest. As it turns out, it is the same question for all clients, appointed or not, judge-involved or not, whether we like it or not. It’s our job.

Judges make our lives difficult. Water is wet. The sky is blue. No one said this job was easy. If a judge wants us to resolve a case the same day, all we can do is what is in the client’s best interest. If the client wants to take the state’s offer, then it’s resolved. If not, then so be it. To complain that judges put too much pressure on defense attorneys is missing the point.

If the client doesn’t want to plead guilty, for whatever reason, then you set your case for trial, and you make the state prove each and every element beyond a reasonable doubt to a jury. You fight and scratch and claw, and then do it some more. In short, you do your job.

I think my Google is broken

My apologies to Judge Salvant for stating that he had no website. It didn't take a reader long to point out that the judge does in fact have a website for his reelection to the bench of Criminal District Court Number 2.

The website is here.

I know I stated that when I Googled the judge, and Ms. Tolbert for that matter, that I found no website for them. The same is still true. Sort of. Sometimes it pops up, and sometimes it doesn't. Again, my aplogies.

You will find all the information you might need (I suppose) on his website.

And yes, before anyone points it out, that is a sharp bowtie.